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Pak v. Key Construction Management Corp.

March 31, 2009

KWANGUK PAK, APPELLANT,
v.
KEY CONSTRUCTION MANAGEMENT CORP. ET AL., DEFENDANTS, AND DO SANG KWON ET AL., RESPONDENTS.



Accepted for Miscellaneous Reports Publication

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Monday, July 20, 2009

{**23 Misc 3d at 63}

OPINION OF THE COURT

Memorandum

Judgment, insofar as appealed from, reversed without costs, so much of the order as denied the branch of plaintiff's motion pursuant to CPLR 4404 (a) seeking to direct judgment in favor of plaintiff on the issue of liability vacated, said branch of plaintiff's motion granted, and matter remanded for trial on the issue of damages.

The instant case proceeded to trial, on a claim pursuant to Labor Law § 240 (1), only against defendants Do Sang Kwon and Keum Ja Kwon. At trial, plaintiff testified through an interpreter that he had been employed as a stucco contractor in connection with a renovation job. Some wood extruding from a window obstructed the job site. Plaintiff had previously requested that the carpenter trim the wood, but this had not yet been done as of plaintiff's first morning on the job. Plaintiff testified that, in preparation for his work on the stucco exterior, he decided to perform a single test to determine whether he could cut the wood, and then to go with his assistant to get scaffolding. Plaintiff found a six-foot-high wooden ladder at the job site, which he positioned on some plywood beneath a window. There was no scaffold, netting or other safety device in place. He mounted the ladder carrying a hand grinder that was intended for cutting cement or metal rather than trimming wood. As plaintiff leaned toward the window from which the wood extruded and turned on the grinder, the ladder shifted and fell. Plaintiff fell too, and, as he fell, the grinder slipped out{**23 Misc 3d at 64} of plaintiff's grip, became caught on his glove, and cut three of his left fingers and his left hand extending from the palm to the wrist.

Plaintiff's employee also testified, confirming plaintiff's statement. The only other witness was defendant He Gin Lee, the architect for the renovation, who was also the principal of defendant Key Construction Management Corp., the general contractor on the job. He testified concerning the noncompliance of wooden ladders with city codes and modern standards, and denied any responsibility for supervising plaintiff.

The clarity of the testimony at trial was somewhat obscured, possibly due to the fact that it was conducted through interpreters. Upon cross-examination of plaintiff, counsel for defendants Do Sang Kwon and Keum Ja Kwon highlighted inconsistencies between plaintiff's deposition testimony that he climbed the ladder facing backward, and his trial testimony that he climbed the ladder facing forward. Also, plaintiff testified that he was the individual responsible for bringing scaffolding to the work site, and that the pieces of wood extruding from the windows would not have interfered with the erection of scaffolding.

At the close of trial, plaintiff's motion for a directed verdict and a motion by defendants Do Sang Kwon and Keum Ja Kwon to dismiss the complaint were both denied.

Over plaintiff's objection, the trial court declined to charge the jury on burden of proof, and plaintiff took exception to the ruling. In its charge to the jury, the court instructed the jury on the Labor Law, without objection, in pertinent part as follows: "If you find that the scaffolding, ladder, or other devices was [sic] not so constructed, or placed operated and or maintained as to give proper protection to plaintiff in the performance of the work and that the construction, or placement, or operation, or maintenance of the scaffolding, ladder or other devices was a substantial factor to causing plaintiff's injury, you will find for plaintiff on this issue. If you conclude that plaintiff's action was the only substantial factor on bringing about the injury, you will find for the defendant on this issue."

The court gave the jury two interrogatories, to which both parties assented:

"Question 1: Did the defendant violate section 240 (1) of the Labor Law in failing to furnish scaffolding or ladders or other devices for the performance of plaintiff's work so as to ...


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