On a normal day, it\u2019s tough to be a Labor Law defendant in the State of New York.\u00a0 In a recent decision, the First Department shows us just how much worse it can get if Labor Law defendants forget the fundamentals of New York practice.\u00a0<\/p>\n
In Moscinski v. Quadrum 38 LLC<\/em>, 2024 NY Slip Op 01781 (1st<\/sup> Dep\u2019t 2024), the Appellate Division, First Department unanimously upheld a Supreme Court, New York County decision that granted the portion of plaintiff\u2019s motion for summary judgment which concerned his Labor Law \u00a7 200 claim.\u00a0<\/p>\n Plaintiff alleged that while working at a construction site, he was pushing a cart, moving between rooms, when, walking by a fire extinguisher stand, the fire extinguisher fell on his left foot.\u00a0 Plaintiff moved for summary judgment, relying on his deposition testimony, several accident reports generated after the accident, and the testimony of plaintiff\u2019s foreman, who testified after the accident that plaintiff told him he hit the subject fire extinguisher stand.\u00a0 Third-party defendant also moved for summary judgment to dismiss the third-party action, and submitted expert reporting demonstrating the fire extinguisher stand was constructed in a manner conforming to applicable codes.\u00a0<\/p>\n In this matter, defendant\/third-party plaintiff is in the precarious position of fending off a motion for summary judgment as to plaintiff\u2019s Labor Law \u00a7 200 claim, as well as a motion for summary judgment dismissing the third-party action for indemnification and contribution from the third-party defendant.\u00a0 Upon initial review of the First Department\u2019s decision, the reader will notice it is suspiciously void of evidence submitted by the defendant in opposition to this two-front procedural war. \u00a0<\/p>\n However, the First Department gives us a look at the procedural history here, which indicates that just before plaintiff moved for summary judgment on his Labor Law \u00a7 200 claim, the Supreme Court, New York County granted a previous motion precluding the defendant from offering any evidence as to the condition of the fire extinguisher due to an admitted failure to preserve the subject fire extinguisher.\u00a0\u00a0 As a result, plaintiff demonstrated his entitlement to summary judgment because defendant could not<\/em> raise an issue of fact due to the preclusion.\u00a0<\/p>\n While it may be like fighting with one hand tied behind your back as a Labor Law defendant in New York, it can get worse with two hands tied behind your back if you\u2019re precluded from offering evidence.\u00a0 Spoliation may not have been the fault of the attorneys in this case but it is one of many avenues to preclusion.<\/p>\n