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First Department Unanimously Affirms A Supreme Court Order Which Granted Our Motion For Summary Judgment

October 19, 2020 • Posted By Scott J. Laird • Labor & Employment

In a recent Order dated October 15, 2020, the First Department unanimously affirmed the lower Court’s decision which granted our motion for summary judgment dismissing all claims filed against our client Atlantic Hoisting & Scaffolding LLC (“Atlantic”). The underlying action was a Labor Law action with claims arising under N.Y. Labor Law §§200, 240(1), and 241(6). The Order correctly stated that Atlantic demonstrated “that the scaffolding handrail on which plaintiff’s lanyard was caught, causing her to fall, was an open and obvious and not inherently dangerous” condition; it also highlighted the affidavit submitted by Atlantic’s expert witness, David H. Glabe, P.E., which established that the scaffolding handrail “was consistent with custom and practice in the industry and was not a hazardous projection in violation of OSHA regulations.”

By way of background, Supreme Court Justice W. Franc Perry granted our motion for summary judgment dismissing all claims filed against Atlantic. Atlantic erected a scaffold at the Jacob Javits Center. Atlantic was hired by Co-Defendant Tishman Construction (“Tishman”). Judge W. Franc Perry also awarded Atlantic costs and disbursements. The action was dismissed in its entirety and Plaintiff appealed.

Justice Perry’s Decision upheld the intent of the Labor Law and found that the scaffold was defect-free.  This was based, in part, on the affidavit submitted by Mr. Glabe. Justice Perry also found that Plaintiff’s alleged accident was not the result of an elevation differential as Plaintiff did not fall from the scaffolding. Plaintiff, a bridge painter, was walking up a scaffolding staircase when her lanyard allegedly became caught on a hand rail, causing her to fall on the scaffolding staircase. She had not returned to work since her March 2012 accident. She had several surgical procedures (eight in total).

Further, Justice Perry correctly held that Plaintiff was provided with proper safety equipment, and the alleged fall was not the result of a dangerous, hazardous, or defective condition. As such, Plaintiff’s Section 240 and 241(6) claims were dismissed. Finally, the Court dismissed the Labor Law Section 200 claims holding that there was no evidence of a dangerous condition and that Atlantic did not have actual or constructive notice of such condition.


Mikenhina v. Tishman Construction Corporation, et al., --- N.Y.S.3d ----, 2020 WL 6065271, 2020 N.Y. Slip Op. 05818 (2nd Dept. 2020).

For more information please contact Scott J. Laird at