Tuesday, September 3, 2013

Second Department Finds Questions of Fact In Labor Law Action Involving Falling Concrete Form

In Ross v. DD 11th Ave., LLC, the Second Department found that questions of fact existed as to whether the defendants had violated Labor Law 240(1), where a worker was injured by a falling concrete form.  The form was apparently adjacent to a form that plaintiff was removing.  The Court found that whether the form required securing for purposes of plaintiff’s work was a triable issue.  The Court rejected the defendants’ argument that securing the adjacent form would have been contrary to the objectives of plaintiff’s work, i.e. to remove the concrete forms.  Curiously, in support of its decision the Court cited Narducci v. Manhasset Bay Assocs., 96 N.Y.2d 259 (2001).  In Narducci, the plaintiff was injured by a falling window that was adjacent to the window that he was removing.  Unlike the Second Department here, the Court of Appeals found in Narducci that the adjacent object did not need securing for the purposes of the plaintiff’s work and dismissed the plaintiff’s section 240(1) claim.     

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