SACS Appellate Group Obtains Important Victory in the Court of Appeals
In Valente v. Lend Lease (US) Constr. LMB, Inc., 29 N.Y.3d 1104 (2017), the plaintiff filed a Labor Law § 240(1) action after he allegedly fell while trying to access a piece of exterior scaffolding via two greasy planks. The plaintiff moved for summary judgment arguing that the defendant violated the Labor Law by failing to provide a ramp for safely accessing the exterior scaffolding. In opposition, the defendant filed an affidavit from the plaintiff’s foreman, who also happened to be his brother, averring that a safe and adequate ramp was available to the plaintiff at the time of his accident. The plaintiff’s reply included a second affidavit from the foreman who now claimed that the ramp he described in his first affidavit was not long enough to reach the scaffolding where the plaintiff was injured (i.e. the ramp was inadequate). The foreman further explained that he signed the first affidavit without carefully reading it because he assumed, incorrectly, that the document was prepared by attorneys for his brother (i.e. the plaintiff).
Despite the clear inconsistencies between the two affidavits, the Supreme Court awarded the plaintiff summary judgment and the First Department affirmed. In the Court of Appeals, we argued that the foreman’s conflicting affidavits raised a genuine question of material fact as to the availability and adequacy of a safety device, an issue bearing directly on the defendant’s liability. The Court of Appeals agreed, and reversed the lower courts. Critically, this decision reaffirmed that not every accident at a construction site triggers the protections of Labor Law § 240(1) and that plaintiffs cannot simply tailor evidence to avoid inconsistencies in the record. The briefing was principally handled by Christopher Simone and Jonathan Shaub.
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