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Wednesday, October 21, 2015

1st Judicial Department, Appellate Division Roundup: October 15, 2015 Edition

A short update, but unusual as it includes a split regarding a Labor Law motion. Check it out below:

Pedro Quinones v. Olmstead Properties, Inc.

 In this SPLIT opinion Labor Law 240(1) case, we will first address the facts, then the Court's findings and then the dissent's:

While painting over graffiti on a billboard, plaintiff lost his balance and fell. The billboard had a row of concrete blocks in front of it to prevent it from tipping over, and the plaintiff was standing on three of them to reach up to the top. He was loosening one of the straps that held the image to the frame so he could paint underneath it. He had been provided a cherry picker, a safety harness and landyard, and two ladders.

The Court found that the defendant had properly made a showing, by means of an expert, that the defendant had provided via testimony of an executive of the defendant's corporation that he had seen a worker using a cherry picker to change the billboard, and via expert submission that the plaintiff could have used the billboard's frameworks to tie off the landyard of the safety harness.

The dissent, however, found that the defendant executive's testimony didn't rise to the level of raising an issue of fact, as the testimony did not establish that the cherry picker that the executive had seen or the work that had been done using said cherry picker was the same as the plaintiff's situation. Furthermore, the dissent found as a matter of law that the expert's statements were conclusory as although the expert identified spots where the landyard could be tied off, the expert failed to include physical properties of those spots necessary to support plaintiff's weight if he fell and the steps he used to identify those spots. Therefore, the dissent found that the evidence adduced would not reach to the level of rebutting plaintiff's proof.

Robert McCullough v. One Bryant Park, et al.

This labor law and common-law negligence case involved a construction worker who was passing from an exterior roof to an interior room. He stepped into an uncovered "drain hole" and fell to the floor. The Court reversed the granting of summary judgment in favor of One Bryant against the plaintiff on two grounds. First, the doorway was considered a passageway for the purpose of proving a Labor Law 241(6) violation of 12 NYCRR 23-1.7(e)(1). Second, just because the defendants lacked supervisory control over plaintiff's work, they could not be dismissed from common-law negligence claims because the injuries arose from the condition of the workplace, rather than the method used in performing the work, and they failed to make a prima facie case showing that they lacked constructive notice of the uncovered drain hole.

Eduardo Velasquez v. MTA Bus Company

In this case, the plaintiff, on his bicycle, was struck when the defendant bus driver changed lanes. Even though the plaintiff was in the middle lane of traffic, and the bus driver was trying to switch to the left lane of traffic to pass the bicycle, by the defendant driver's own admissions it made a prima facie case of negligence and the plaintiff won on summary judgment.

Mark Walker v. Robert C. Whitney, III

In this threshold motion, the plaintiff's case was dismissed at the Supreme Court and affirmed by the Appellate Division. The defendant submitted reports of an orthopedist and neurologist who found full range of motion, and a radiologist which found degenerative diseases and no evidence of causally related injury. In opposition, the plaintiff failed to properly submit admissible evidence. The unaffirmed MRI findings, which would not be admissible anyways, failed to explain how mild hypertrophic changes of the AC joint could be explained by traumatic injury rather than degeneration. The medical records reviewed by defendant's experts in preparation for their exams were also properly held out. The only admissible evidence was a review by plaintiff's orthopedic surgeon shortly after his arthroscopy, which failed to provide measurements of the decreased range of motion in the left shoulder, and did not provide evidentiary support for a statement that plaintiff's shoulder condition was related to the accident, or address the defendants' experts that any shoulder injury was not due to ongoing pathology and degenerative changes.

 


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