Case Summary : Joseph Gallagher v. Levien & Company, 72 A.D.3d 407, 898 N.Y.S.2d 35 (1st Dept. 2010)(Apr. 1, 2010).

Summary :Joseph Gallagher v. Levien & Company, 72 A.D.3d 407, 898 N.Y.S.2d 35 (1st Dept. 2010)(Apr. 1, 2010). Plaintiff was injured when one of his legs became wedged in a hole in an alleyway that ran alongside a building wall. Just before the accident, he picked up the board that was covering the hole. The court found a triable issue of fact because there wasconflicting testimony as to the height of the drop exposed by the hole, the size of the hole and whether the board covering the hole had been secured and marked. With respect to the plaintiff’s §241(6) claim, the court held that there was an issue of fact on the sole proximate cause defense.

Practice Note: The court, in reaching its decision, does not cite any case law and appears to be contrary to other Appellate Departments.