APPELLATE WIN – LABOR LAW § 240(1) [GONZALEZ]

Kenneth Kutner and Michael Dombrowski obtained a unanimous Decision and Order from the Appellate Division, First Department reversing the lower court‘s award of summary judgment to plaintiff under Labor Law § 240(1) after a fall while the worker was utilizing “stilts” to gain access to an elevated work area.
The Appellate Court agreed with our brief and held that: (1) issues of fact existed regarding whether plaintiff disregarded specific instructions from his foreman to work on ground level and not to work on stilts; (2) issues of fact and credibility existed as to whether plaintiff’s foreman’s orders to work solely on the ground were subsequently “superseded” by instructions from another given an affidavit to the contrary; and (3) issues of fact also existed as to whether plaintiff was the sole proximate cause of the accident because when he felt the stilts become unstable, his “normal and logical response” should have been to request another pair rather than to keep working on them.
Of note, the Appellate Court also reversed the portion of the underlying decision granting summary judgment to the co-defendant general contractor on its breach of contract claim for our client’s purported failure to procure insurance.
Should you have any questions on this successful appeal, please contact Mr. Kutner or Mr. Dombrowski directly.