New York Appellate Division Finds that Defendant Raised Triable Issues of Fact to Defeat Summary Judgment Motion and Reversed Lower Court’s Ruling

The plaintiff alleged, while performing brickwork, the ladder he was on suddenly shook when he was about seven feet off the ground, and he fell. The plaintiff moved for summary judgment pursuant to Labor Law § 240(1), which was granted by the Bronx Supreme Court. The defendants appealed to the First Department. 

First, the plaintiff provided two separate dates of accident. He cited July 28, 2017, as the accident date through a workers’ compensation form and a hearing. Later, at his deposition, he stated his accident date was July 31, 2017. While mixing up accident dates is usually not dispositive, this plaintiff was seen working on both days on video and, further, no accidents were reported on those days. 

Second, he claimed he personally reported his accident to his supervisor, Abraham Diaz. Mr. Diaz confirmed the plaintiff did not report an accident to him on either date. He also provided phone records to prove the plaintiff never called him to report the accident. 

Finally, the court noted the plaintiff first went to the hospital days after the employer fired him for absenteeism. The court ruled: “defendants raised triable issues of fact sufficient to defeat the motion by identifying various inconsistencies in plaintiff’s account of the accident, thus calling into question his overall credibility and circumstances underlying his claimed injuries.” 

This decision highlights the importance of getting all specific facts surrounding a plaintiff’s accident, not just focusing on the happening of the accident itself. 

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