Summary
In Outar v. City of New York, 5 N.Y.3d 731, 799 N.Y.S.2d 770, 832 N.E.2d 1186 [2005], the Court of Appeals again implied that foreseeability was dispositive in determining the applicability of Labor Law § 240(1) to an accident that seemed far beyond the statute's purview.
Summary of this case from Fabrizi v. 1095 Ave. of the Americas, L.L.C.Opinion
144.
Decided June 9, 2005.
APPEAL, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered October 18, 2004. The Appellate Division modified, on the law, a judgment of the Supreme Court, Kings County (Leon Ruchelsman, J.), entered upon a jury verdict in favor of plaintiffs, which, insofar as appealed from, had awarded plaintiff subway track worker damages in the principal sum of $4,945,793 for future lost wages, future lost Social Security benefits, and future lost pension benefits and $10,101 for past lost Social Security benefits. The modification consisted of deleting the provision awarding plaintiff damages in the principal sum of $4,945,793 for future lost wages, future lost Social Security benefits and future lost pension benefits and substituting therefore a provision awarding plaintiff damages in the principal sum of $4,305,743 for future lost wages, future lost Social Security benefits, and future lost pension benefits and deleting the provision thereof awarding plaintiff damages in the principal sum of $10,101 for past lost Social Security benefits and substituting therefor a provision awarding him damages in the amount of $0 for past lost Social Security benefits. The appeal brings up for review a prior nonfinal order of the Appellate Division, entered September 10, 2001 ( 286 AD2d 671). The Appellate Division had modified, on the law, an order of the Supreme Court, Kings County (Bruno, J.), which, insofar as appealed from, had denied plaintiffs' motion for summary judgment on the issue of liability on their Labor Law § 240 (1) cause of action and granted defendant's cross motion for summary judgment dismissing the complaint. The modification consisted of granting plaintiffs' motion and denying defendant's cross motion.
The injured plaintiff was hurt while working on subway tracks, alleging that he was lifting pieces of track when an unsecured dolly fell from a height and struck him.
Outar v. City of New York, 11 AD3d 593, affirmed.
Wallace D. Gossett, Brooklyn ( Lawrence A. Silver of counsel), for appellant.
Lawrence P. Biondi, New York City, for respondents.
Fiedelman McGaw, Jericho ( Jeanne A. Cygan, Andrew Zajac, Dawn C. DeSimone, Elizabeth Anne Bannon and Rona Platt of counsel), for Defense Association of New York, Inc., amicus curiae.
Before: Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur.
OPINION OF THE COURT
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals ( 22 NYCRR 500.4), order affirmed, with costs. The elevation differential between the dolly and plaintiff was sufficient to trigger Labor Law § 240 (1)'s protection, and the dolly was an object that required securing for the purposes of the undertaking ( cf. Narducci v. Manhasset Bay Assoc., 96 NY2d 259, 268).