SACS Appellate Group Successfully Wards Off Plaintiff's Efforts to Obtain Summary Judgment

In Guerrero v. 115 Cent. Park W. Corp., 2019 NY Slip Op 00027 (1st Dep’t 2019), the plaintiff claimed he was injured when the scaffolding he was working on “shook” causing him to lose his balance and fall into a gap between the scaffold and an adjacent building.  The plaintiff filed an action and then moved for summary judgment on his Labor Law § 240(1) claim. The Supreme Court denied the motion finding disputed issues of fact as to whether the accident occurred in the manner alleged. The plaintiff subsequently filed an appeal to the Appellate Division, First Department, a notoriously plaintiff friendly venue. In our brief, we argued that the plaintiff’s failure to mention the moving scaffolding in his initial account of the accident was a material inconsistency that warranted the denial of summary judgment. Additionally, evidence adduced in discovery established: (i) the scaffolding was mounted to the building; (ii) this design prevented it from moving; (iii) routine inspections, including one thirty to sixty minutes prior to the alleged accident, revealed no issues; and (iv) no one, other than plaintiff, ever reported any movement on the scaffolding before or after the alleged incident. Finally, we asserted that plaintiff’s failure to report his accident until the next day was just one more fact that warranted the denial of his motion for summary judgment. The First Department agreed, holding that plaintiff’s delay in reporting the accident coupled with his failure to mention the shifting scaffolding raised a genuine issue of material fact. This decision departed from the First Department’s recent inclination to gloss over inconsistencies between varying accounts of an accident.  Accordingly, the First Department’s decision provides a useful tool for defendants attempting to avoid summary judgment where the record contains materially distinct versions of the events leading up to a plaintiff’s accident. The briefing was principally handled by Christopher Simone and Jonathan Shaub.

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