Court of Appeals February Session: Arguments of Interest for February 14, 2017

The Court of Appeals’ February Session continues on Valentine’s Day, with three cases on the Court’s argument docket (the Court’s argument summaries can be found here).  At issue before the Court today is (1) whether a plaintiff who fell down wet scaffolding stairs can be granted summary judgment on liability in a Labor Law 240 case even though the parties presented conflicting expert evidence on the issue; (2) whether a prosecutor’s captioned slideshow during summation deprived a criminal defendant of a fair trial because the captions were not part of the admitted evidence and made factual conclusions that contradicted the admitted testimony; and (3) whether a Sandoval error was harmless where the trial judge determined that a criminal defendant could be cross examined about a witness statement that he possessed guns on a prior occasion during a murder trial at which the defendant was alleged to have shot the victim with a gun.

No. 27     O’Brien v The Port Authority of New York and New Jersey

In yet another Labor Law 240 case to reach the Court of Appeals, the plaintiff in O’Brien was injured when he slipped and fell down a wet temporary steel staircase while working at the World Trade Center Freedom Tower.  Supreme Court denied summary judgment to all parties on O’Brien’s Labor Law 240(1) claim because the parties submitted conflicting expert affidavits raising triable issues of fact concerning whether the worn anti-slip staircase provided sufficient protection against the fall.  Supreme Court, however, granted O’Brien summary judgment on his Labor Law 241(6) claim, holding that the defendants violated a provision of the Industrial Code requiring employers to keep elevated working surfaces, passageways, and scaffolds in a non-slippery condition.

The Appellate Division, First Department reversed, with one Justice dissenting.  The First Department held that the mere fact that the parties submitted conflicting expert evidence did not preclude summary judgment in favor of O’Brien because the stairs actually proved to be insufficient to keep him safe from the gravity-related harm of falling.  Further, the Court noted, O’Brien’s expert opined that because the stairs were worn, a decrease in the anti-slip properties of the stairs should have been expected.  Thus, the Court granted O’Brien summary judgment on his Labor Law 240(1) claim.  The Court, however, denied summary judgment on O’Brien’s Labor Law 241(6) claim because issues of fact existed concerning whether the defendants had notice of the hazardous, slippery condition on the stairs before the accident occurred.

The dissenting Justice at the First Department would have affirmed the trial court’s denial of summary judgment to both sides.  The dissent agreed that the stairs were a safety device within the purview of Labor Law 240, but noted that if the factfinder found that no better staircase could have made the site safer, then O’Brien’s accident would not have arisen from a violation of section 240.

The Appellate Division, First Department’s decision can be found here.

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