CARLETTA SIMS V. CITY OF ROCHESTER

115 A.D.3d 1355, 983 N.Y.S.2d 190 (Mar. 28, 2014)

While standing on a freestanding scaffold and scraping asbestos from the ceiling, the plaintiff fell to the ground. The court denied the plaintiff’s motion for summary judgment under §240(1). There was a dispute between the plaintiff’s position that at the time of the accident she was on a scaffold with the testimony of a coworker who stated that she was working on ground level. Thus, the court held that the “plaintiff’s failure to eliminate all questions of fact mandates the denial of her motions.”

Practice Note: The court will assess all relevant proof when deciding a motion for summary judgment.

Topics: Prima Facie Burden; Procedural Issues; Application of Labor Law