Smigielski v. Teachers Ins. Annuity Assn. of America -- 2016 NY Slip Op. 02297 137 AD3d 676, App. Div. First Dept.
May 6, 2016 Posted By Joseph A. French Insurance Coverage
One of the most odious expansions of the Labor Law 240 litany of cases is the numerous findings of liability under Labor Law 240(1) where plaintiff’s alleged fall is unwitnessed. Plaintiff alone then is other left to explain the incident and how he was injured. We believe that common sense dictates that in the interest of equity and judicial fairness, unwitnessed accidents should in and of themselves be the basis for a finding of an issue of fact, thus leaving plaintiff’s credibility and his version of the facts to a jury to assess and determine under a Labor Law 240(1) jury instruction.
Although admittedly in a vastly different context given the constitutional rights implications, no one would ever eliminate a criminal defense attorney’s ability to question and cross-examine a robbery victim, where the victim is the sole witness to the alleged crime. Similarly, it is unconscionable to have a civil attorney precluded from cross-examining at trial an alleged accident victim about the incident and the surrounding circumstances. An unwitnessed accident cries out for a jury to determine the circumstances and whether the defendant is liable.
A recent First Department decision highlights these issues. “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., 13AD3d 146, 147 [1st Dept. 2004)].” The Court found, however, that a favorable Labor Law 240(1) decision for plaintiff on his summary judgment motion was not warranted. The reason: plaintiff had provided an“inconsistent accounts of the accident.”
“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.”
The decision is a positive development in the leveling of the playing field for all concerned in the Labor Law 240(1) arena, yet much remains to be addressed in the areas of Labor Law 240(1)’s application to unwitnessed and uncorroborated claims, and certainly it should not be limited to reviewing, “inconsistent accounts.”