First Department Rules Where Plaintiff Is Sole Witness to Accident, He May Not Be Entitled to Summary Judgment Where Credibility In Issue

In a brief decision, the Appellate Division, First Department ruled that a decision denying the plaintiff’s motion for summary judgment pursuant to Labor Law 240(1) was properly denied. In the case Smigelski v. Teachers Insurance and Annuity Association of America, 2016 NY Slip Op 02297, the First Department stated as follows:

“The fact that plaintiff may have been the sole witness to his accident does not preclude summary judgment in his favor

(see Verdon v Port Auth. of N.Y. & N.J., 111 AD3d 580, 581 [1st Dept 2013]; Perrone v Tishman Speyer Props., L.P., 13 AD3d 146, 147 [1st Dept 2004]). However, where a plaintiff is the sole witness to an accident, an issue of fact may exist where he or she provides inconsistent accounts of the accident (see Goreczny v 16 Ct. St. Owner LLC, 110 AD3d 465, 466 [1st Dept 2013]), his or her account of the accident is contradicted by other evidence (id.), or his or her credibility is otherwise called into question with regard to the accident (see Vargas v City of New York, 59 AD3d 261 [1st Dept 2009]).

Here, plaintiff testified that he sustained injuries when the platform of a scaffold, on which he was standing to cut a hole in the ceiling, collapsed. However, the testimony of defendant Eclipse Development Inc.’s senior project manager that plaintiff’s employer did not do any ceiling work or use scaffolds and no scaffolds were present in the area where plaintiff was allegedly working at the time of the accident, raises triable issues as to whether the accident occurred as plaintiff claimed.”

Clearly, in this case, the lower Court and the Appellate Division both found that there were serious issues of the credibility of plaintiff’s story which directly impacted whether this was a proper Labor Law 240(1) claim. In order for there to be a valid Labor Law 240(1) claim, the plaintiff must show that there was a failure of an enumerated safety device (i.e. a scaffold). In the instant case, there was testimony that the plaintiff did not use a scaffold and there were no scaffolds present in the area at the time of the accident. This obviously raised a serious question as to how this accident really occurred which needed to be resolved by a jury.

As an aside, it is curious as to what is really going on in this case. There are such divergent stories as to how this accident occurred which raise questions as to whether the plaintiff’s story is completely fabricated/mistaken or if the defense is fabricated/mistaken. Normally, there is no dispute as to whether the plaintiff was using a scaffold at the time of the accident.

This further underscores the need to hire an attorney who is familiar with the New York State Labor Law and has the experience and resources necessary to properly litigate this type of claim.

While grounds for compensation under New York Labor Laws 240(1) and 241(6) may seem obvious to injured workers, construction companies and contractors often disagree and are willing to fight claims in court. Property owners and construction companies can have vast resources that they are willing to exhaust in order to avoid paying injured workers the compensation they may deserve. As a result, it is important that construction workers who have suffered an on-site injury retain an attorney with experience handling law suits relating to Labor Laws 240(1) and 241(6). At Queller, Fisher, Washor, Fuchs & Kool, our New York construction accident lawyers have a track record of success handling New York Labor Law lawsuits. Our firm’s resources and experience allow us to successfully combat property owners, construction companies, and insurance companies in court. We have secured numerous favorable verdicts and settlements over the years, many of which have been greater than $1 million.

Have you suffered an injury while working at a construction site? Do you believe you have a lawsuit under New York Labor Law 240(1) or 241(6)? If so, call 212-406-1700 or contact us online for a free consultation. Queller, Fisher, Washor, Fuchs & Kool will review your claim to see how they may be able to help you.