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Duran v. Temple Beth Sholom, Inc.

Supreme Court of New York, Second Department

November 8, 2017

Luis Duran, et al., appellants,
v.
Temple Beth Sholom, Inc., respondent, et al., defendants. Index No. 18173/10

          Argued - September 22, 2017

         D53700 C/hu

          Cellino & Barnes, P.C., New York, NY (Christian R. Oliver and Richard Amico of counsel), for appellants.

          Martin 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

         In an 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.

         ORDERED 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.

         The 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][1]).

         In June 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 jury trial.

         At 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 beam.

         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.

         The 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, 759).

         However, 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."

         Duran 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 ...


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