June 24, 2021
Attorneys Virginia Futterman and Anthony Malecki of London Fischer LLP recently defeated a summary judgment motion brought by a plaintiff in a Labor Law 240(1) construction action. Plaintiff, a construction worker, claimed that an unsecured metal concrete form fell and struck him on the back while he was working. Through depositions and Plaintiff’s treatment records, our firm established that Plaintiff had reported multiple versions of how the accident occurred to his foreman and treating physicians. Immediately after the accident, Plaintiff told his foreman that he had injured his back while lifting a heavy object, with no mention of a form falling on him. He made similar assertions to all of his treating physicians for over a year after the accident. Plaintiff also signed a workers’ compensation form, under penalty of perjury, a year after the accident, asserting that he was injured when he and a coworker were holding up heavy steel materials and the coworker let go. It was not until a year and a half after the accident that Plaintiff’s medical records reported injuries due to an object falling onto his back.
In opposition, Plaintiff’s counsel attempted to explain the discrepancies by stating that Plaintiff was fearful of losing his job or not being allowed to return to his job if he told the truth about how the accident occurred. In denying Plaintiff’s motion, Justice David Benjamin Cohen of the Supreme Court, New York County, found that evidence which supported a version of an accident other than that alleged by plaintiff, and which would not trigger a defendant’s liability under Labor Law § 240(1), was sufficient to overcome a plaintiff’s prima facie showing and raise triable issues of fact precluding summary judgment. Justice Cohen determined that evidence existed establishing that the plaintiff’s accident may have occurred due to lifting or carrying something heavy, which suggested that the incident did not occur as the result of a violation of the statute. He rejected Plaintiff’s arguments in opposition, noting that although Plaintiff testified that his boss told him to lie to medical providers by telling them that he was not injured at work, there was no indication that his boss told him to lie about how the accident occurred. Therefore, the Court denied Plaintiff’s motion for summary judgment.
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