First Department Affirms Lower Court’s Decision Which Denied Plaintiff Summary Judgment on Labor Law §240(1) Claim Against MTA and Contractor Based on Issue of Fact Regarding Plaintiff’s Account of Accident

In a decision dated June 12, 2018, the Appellate Division, First Department affirmed Justice Kathryn E. Freed’s May 16, 2017 decision which denied plaintiff’s motion for summary judgment pursuant to Labor Law §240(1) against our clients, the Metropolitan Transportation Authority and Judlau Contracting, Inc. In the lower court, the plaintiff previously moved to reargue and the motion was denied. The plaintiff, a Union Local 3 electrician working on the MTA’s Second Avenue Subway Construction Project, claims that he fell 20 feet into a shaft and landed on his back. A few days before the accident a bricklaying subcontractor allegedly removed a wood guardrail system from the perimeter of the shaft and built a new wall, leaving a portion of the shaft exposed. A 2×4 was allegedly wedged between the new wall and an old wall to create a guardrail in front of the shaft. The 2×4 was nailed into a vertical post (another 2×4) affixed to the old wall, but it was not secured in any way to the new wall. Plaintiff alleges that he leaned on the guardrail, it dislodged and he fell into the shaft. The fall was not witnessed; although, he was found a short while after by his partner who helped plaintiff climb out of the shaft.

In opposition to the plaintiff’s motion, the defendants submitted testimony from an expert radiologist and expert biomechanical engineer, and argued there is no evidence plaintiff sustained an acute trauma as he claimed and that there was a triable question of fact with regard to plaintiff’s account of the accident. In his affidavit, the defendants’ expert radiologist attested that there was no evidence of a traumatic injury to the body parts allegedly injured based on various radiological studies taken shortly after the accident (X-rays and MRIs were taken within one week of the alleged occurrence). He testified that there was significant evidence of degeneration to the allegedly injured body parts already present at the time of the accident and no evidence of any acute trauma. The biomechanical engineer testified that had plaintiff fallen 25 feet as he claimed (or even just 10 feet, which was the distance from the floor to the 4x4s he was found upon), he would have been expected to sustain severe traumatic injuries. The biomechanical engineer also opined that there was no evidence of any acute trauma that a fall from a height would have caused.

Aspromonte v. Judlau Contracting, Inc. et al., 162 A.D.3d 484, 78 N.Y.S.3d 334 (1st Dep’t 2018)

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