Tuesday, November 1, 2016

Labor Law §§ 240(1) and 241(6).

Practice point:  The Appellate Division affirmed dismissal of the § 240(1) cause of action in which plaintiff alleged that he was injured while riding in one of the building's elevators.  The passenger elevator was not a safety device for protecting a construction worker from a risk posed by elevation as contemplated by the statute. However, the Appellate Division reversed dismissal of the § 241(6) claim to the extent that it was predicated on violations of Industrial Code (12 NYCRR) § 23-1.7(e). While there were no facts alleged to support a claim that plaintiff was injured as the result of a slipping hazard, plaintiff's complaint, as supplemented by his affidavit in opposition to defendant's motion, sufficiently alleged that debris was one of the causes of his fall.

Case:  Smith v. Extell W. 45th St. LLC, NY Slip Op 07089 (1st Dep't October 27, 2016)

Here is the decision.

Tomorrow's issue:  The first-to-file rule in a legal malpractice action.