First Department Confirms It’s Never Too Early for Labor Law § 240(1) Summary Judgment Motions
In a recent decision, the Appellate Division, First Department unanimously reversed a Supreme Court, New York County decision that denied Plaintiff’s motion for summary judgment as premature.
In Harjo-Codd v. Tishman Constr. Corp., 2024 NY Slip Op 06302, plaintiff alleged that she was injured as a bucket lift she rode in to affix plastic sheets to façade scaffolding at the fourth-floor level of a building, suddenly became snagged on the scaffolding, then popped free from the scaffolding, ejecting plaintiff from the bucket. Plaintiff wore a harness and lanyard that had a “retractable, protective device that did not operate as designed in order to keep her inside the bucket,” and as a result, she fell approximately twenty (20) feet down from the bucket before her lanyard arrested her fall.
Prior to plaintiff’s deposition, plaintiff moved for summary judgment. In support of her motion, plaintiff relied on (1) her own affidavit, (2) affidavits from her co-workers, (3) non-party deposition of a co-worker and, (4) an affidavit from the defendant construction manager’s representative (noting that any safety equipment violations issued by the Department of Buildings were remedied). The Supreme Court, New York County denied plaintiff’s motion, opining, inter alia, that the motion was premature as plaintiff had yet to be deposed.
Plaintiff appealed and the Appellate Division, First Department unanimously reversed. In its decision, the First Department held that the affidavits and her coworkers established the “mechanism of the accident” and the affidavit from the construction manager’s representative served as acknowledgement that the accident occurred in such a manner, amounting to an admission of such face. This evidence established plaintiff’s prima facie entitlement to summary judgment, despite the fact that discovery remained outstanding. The First Department then cited to relatively recent precedent in Laporta v. PPC Commercial, LLC, 204 A.D.3d 538 (1st Dep’t 2022), where summary judgment was granted in a Labor Law § 240(1) case before any depositions had been completed.
Any time is the right time for summary judgment in a Labor Law § 240(1) case, even before basic discovery has been completed in a case. It’s worth noting here that the affidavit from defendant’s was submitted in support of their opposition to plaintiff’s motion, ended up helping plaintiff’s motion, by establishing that the accident occurred in the manner alleged by plaintiff.
The Harjo-Codd decision can be found here.
For additional information, contact Philip D. Priore, Esq. and/or Michael J. Shields, Esq.
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