- September 22, 2017
Cellino & Barnes, P.C., New York, NY (Christian R. Oliver
and Richard Amico of counsel), for appellants.
Clearwater & Bell LLP, New York, NY (Barbara D. Goldberg
of counsel), for respondent.
WILLIAM F. MASTRO, J.P. SANDRA L. SGROI JEFFREY A. COHEN
JOSEPH J. MALTESE, JJ.
DECISION & ORDER
action to recover damages for personal injuries, etc., the
plaintiffs appeal from (1) an order of the Supreme Court,
Nassau County (Parga, J.), dated March 4, 2015, which denied
their motion pursuant to CPLR 4404(a) to set aside a jury
verdict in favor of the defendant Temple Beth Sholom, Inc.,
and for judgment as a matter of law on the cause of action
alleging a violation of Labor Law § 240(1) insofar as
asserted against that defendant or, in the alternative, to
set aside the verdict as contrary to the weight of the
evidence and in the interest of justice and for a new trial
on that cause of action insofar as asserted against that
defendant, and (2) a judgment of the same court dated March
17, 2015, which, upon the jury verdict and upon the order
dated March 4, 2015, is in favor of the defendant Temple Beth
Sholom, Inc., and against them, in effect, dismissing the
cause of action alleging a violation of Labor Law §
240(1) insofar as asserted against that defendant.
that the appeal from the order is dismissed; and it is
further, ORDERED that the judgment is reversed, on the law,
that branch of the plaintiffs' motion which was pursuant
to CPLR 4404(a) to set aside the verdict in the interest of
justice and for a new trial on the cause of action alleging a
violation of Labor Law § 240(1) insofar as asserted
against the defendant Temple Beth Sholom, Inc., is granted,
that cause of action is reinstated insofar as asserted
against that defendant, the order dated March 4, 2015, is
modified accordingly, and the matter is remitted to the
Supreme Court, Nassau County, for a new trial on the cause of
action alleging a violation of Labor Law § 240(1)
insofar as asserted against the defendant Temple Beth Sholom,
Inc.; and it is further, ORDERED that one bill of costs is
awarded to the plaintiffs.
appeal from the intermediate order must be dismissed because
the right of direct appeal therefrom terminated with the
entry of judgment in the action (see Matter of Aho,
39 N.Y.2d 241, 248). The issues raised on the appeal from the
order are brought up for review and have been considered on
the appeal from the judgment (see CPLR 5501[a]).
2009, Luis Duran (hereinafter Duran) was injured while
removing asbestos-laden flooring during a demolition proj ect
at property owned by the defendant Temple Beth Sholom, Inc.
(hereinafter the temple). Duran, and his wife suing
derivatively, commenced this action alleging, inter alia, a
violation of Labor Law § 240(1). The case proceeded to a
trial, Duran testified that his work involved cutting and
removing floor tiles and plywood. Duran and his coworkers
would use "pry bars" to separate the plywood from
metal beams (or floor joists) and then manually lift pieces
of plywood until "the piece [broke] off totally"
from the beam. The evidence at trial demonstrated that the
beams were approximately four inches wide, four feet above
the ground, and four feet apart from one another. Thus, when
the plywood flooring was removed, there was approximately
four feet of open space between each beam, each with a drop
of approximately four feet to the ground. At the time of the
accident, the beams were wet, and Duran was wearing rubber
boots with no tread. As Duran stood on a wet beam, he lifted
a piece of plywood weighing 60 to 80 pounds that "broke
off violently, " thereby causing Duran to fall from the
plaintiffs' evidence demonstrated that Duran was not
provided with any safety devices to prevent him from falling
off the beam. Further, he was not directed to perform the
work in a manner other than the way he was doing it, and he
would not have been able to remove the plywood by standing on
the ground next to the beam.
plaintiffs' expert civil engineer testified that a worker
performing demolition work approximately four feet above the
ground was entitled to proper protection to prevent him from
falling. The expert explained, by way of example, that a
portable, three-quarters-inch plywood platform, which could
be clamped to the beams for the worker to stand on, would be
a suitable safety device for the task Duran was performing at
the time of the accident. The expert further opined that a
person doing work at any elevation over 18 inches was
required to have a safety device to provide protection from a
fall. Significantly, there was no evidence that the plaintiff
had been provided with any elevation-related safety device
(cf. Cox v. International Paper Co., 234 A.D.2d 757,
the defendants adduced evidence that the accident occurred in
a manner different from that described by Duran at trial.
Approximately one week after the accident, Duran spoke with a
workers' compensation attorney, who prepared a form for
him to sign. One of the questions on the form asked how the
injury happened. Duran's purported response, as stated on
the form, was: "While working I slipped and fell over
debris on construction site."
testified at trial that the workers' compensation form
did not contain an accurate description of the accident.
Notably, Duran was born in a Spanish-speaking country, he
moved to the United States only about three years prior to
the accident, he had only limited English language skills,
and he testified at trial through an interpreter. The form
was in English and the workers' compensation attorney did
not speak Spanish. Although the attorney's secretary had
some knowledge of Spanish, Duran could not remember whether
she translated the entries on the ...