We all make mistakes.\u00a0 Sometimes that mistake is a typographical error that plead a section of the Labor Law that doesn\u2019t exist.\u00a0 If you expected this would be fatal to a Labor Law claim, the Second Department would disagree with you.\u00a0<\/p>\n
In a recent decision, Castillo v. Hawke Enters., LLC<\/em>, 222 A.D.3d 827, 202 N.Y.S.3d 246 (2d Dep\u2019t 2023), the Second Department reversed a lower court decision that denied plaintiff\u2019s motion to amend the amended complaint and the bill of particulars[1]<\/a>.\u00a0 Plaintiff alleges he sustained injuries while he and his co-worker attempted to lower a 194-pound cylinder from a height of 10 to 11 feet above the ground, while performing work on a fire-suppression system at a gas station in Suffolk County.\u00a0 While lowering the cylinder, plaintiff\u2019s co-worker dropped it approximately four inches, trapping the plaintiff\u2019s hand between the cylinder and pillar, injuring plaintiff\u2019s middle finger.\u00a0<\/p>\n Plaintiff then commenced an action, alleging violations of \u201csections 241 and 241(b)<\/em> of the Labor Law.\u201d (emphasis added).\u00a0 Subsequently, Plaintiff moved for summary judgment on the issue of liability pursuant to Labor Law \u00a7 240(1).\u00a0 Defendant opposed the motion, arguing, inter alia<\/em>, that plaintiff did not plead a Labor Law \u00a7 240(1) cause of action, and that \u00a7 240(1) was nevertheless inapplicable because plaintiff\u2019s work was routine maintenance.\u00a0<\/p>\n After the parties filed summary judgment motions, plaintiff moved to amend the amended complaint and bill of particulars, claiming that the reference to \u201cLabor Law \u00a7\u00a7 241 and 241(b)\u201d was a typographical error.\u00a0 The Supreme Court, Suffolk County ultimately denied the plaintiff\u2019s motion for leave to amend as the proposed amendment was \u201cpatently devoid of merit.\u201d\u00a0 The lower Court then granted the defendants\u2019 motion for summary judgment dismissing plaintiff\u2019s complaint.\u00a0<\/p>\n In its decision, the Appellate Division, Second Department held that the lower court improvidently exercised its discretion in denying plaintiff\u2019s motion for leave to amend the amended complaint and bill of particulars, as the proposed amendment entailed no prejudice or surprise to the defendants, and was not palpably insufficient or patently devoid of merit.<\/p>\n Further, the Second Department held that despite the fact that plaintiff had not yet properly pleaded a Labor Law \u00a7 240(1) cause of action at the time he made a motion for summary judgment on the issue of liability pursuant to \u00a7 240(1), summary judgment may be awarded on an unpleaded cause of action if the proof supports such cause and if the opposing party has not been misled to its prejudice.<\/p>\n Though the Second Department held that plaintiff was free to amend the amended complaint and could be granted summary judgment on an unpleaded cause of action, it ultimately denied both plaintiff\u2019s and defendants\u2019 motions for summary judgment as they both failed to meet their prima facie<\/em> burdens.\u00a0 Plaintiff failed to prove, as a matter of law, that he sustained the type of elevation-related injury that Labor Law \u00a7 240(1) was intended to protect against.\u00a0 Defendants failed to establish that plaintiff was engaged in routine maintenance, and not repairs within the purview of the statute, at the time of the subject incident, or that plaintiff was the sole proximate cause of his injuries.<\/p>\n