Coffey Modica O’Meara Capowski LLP (CMOC) achieved a significant victory on appeal before the New York Supreme Court, Appellate Division, First Department, in a New York Labor Law case (Lopez v. Hallets Astoria, LLC, et al.; Case No. 2021-03850) involving a plaintiff who severed his foot while engaged in an elevator (hoist) installation and maintenance at a construction site. With little to no warning to anyone, the plaintiff construction worker stepped onto a hoist tower to help his supervisor loosen a screw and was struck in the foot by an adjacent ascending hoist. The motion court denied the defendants’ motion for summary judgment on all issues and instead – on searching the record – granted summary judgment in favor of the plaintiff on his Labor Law §§ 241(6) and 200/common law negligence causes of action.
On appeal, CMOC’s appellate/consulting group was successful in convincing the First Department to overturn the decision. Specifically, CMOC demonstrated that the plaintiff was not entitled to summary judgment on his Labor Law § 200/common law negligence claim because, among other reasons, his injuries were not caused by a dangerous premises condition and issues of fact remained as to whether the defendant construction manager had the authority to control the activity that caused plaintiff’s injuries, i.e., the operation of the adjacent hoist. Additionally, CMOC was effective in persuading the Court that the plaintiff’s Labor Law § 241(6) claim predicated on Industrial Code § 23-6.1(c)(1) failed because such provision is not sufficiently specific and that issues of fact remained as to whether defendants can be held liable for plaintiff’s Labor Law § 241(6) claim premised on Industrial Code § 23-6.3(g). Sofya Uvaydov, Timothy Capowski and Sean Harriton drafted the compelling briefs, and Sean Harriton prevailed during an extremely contentious oral argument. CMOC’s victory is yet another example of why it is vital to hire appellate counsel well in advance of an appeal