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Second Department Keeps an Eye Out for Plaintiffs

In Argueta v. City of New York, 2024 N.Y. Slip Op. (2nd Dept. 2024), an early 2024 decision by the Appellate Division, Second Department, the court overturned in part the Supreme Court, Queens County decision which had granted summary judgment in favor of the defendants. The plaintiff (who was joined in the suit by his wife, derivatively) filed an action alleging violations of Labor Law 200 and 241(6). The plaintiff claimed that a tile shard hit him in the right eye while disposing of refuse in a dumpster. The court upheld the decision dismissing the Labor Law 200 claims. Still, it overturned that portion of the decision that granted summary judgment to the defendants on Labor Law 241(6), finding an issue of fact.

Summary judgment was initially granted to the defendants on the ground that there was testimony that his employer provided the plaintiff and all of the other workers on-site protective glasses and directed each worker to wear the glasses at all times. Further bolstering this claim, the defendants produced two witnesses who testified that the plaintiff removed his glasses before the incident, although they did not actually witness the incident. The plaintiff denied this both at his deposition and at a 50-h hearing. A further review of the lower court decision and the submissions of each of the parties reveals that the plaintiff testified that he was wearing glasses at the time of the accident but that they were not the ones provided by his employer but his own. He further testified that the glasses failed to provide adequate protection, as they allowed part of the shard to enter from the side.

On the surface, the decision would appear surprising since the defendants provided evidence that glasses were provided and bolstered that claim with witness testimony that they saw the plaintiff remove his glasses. However, this decision continues a trend in the Appellate Divisions, particularly the First and Second, which allows plaintiffs to defeat summary judgment based on only their own testimony. Further, the court did not address the defendants' argument that the plaintiff's job of removing garbage is not covered under the applicable Industrial Code provision, and that the tile popping up and causing a shard to hit the plaintiff in the eye was not a foreseeable event. The court also did not address invoices for hundreds of safety glasses that were purchased on-site.

So, what does this mean for contractors and lawyers? For contractors, continue to provide all necessary safety equipment to your workers, document all incidents, obtain witness statements early, keep receipts for purchases, etc. While summary judgment was denied in this case, at a minimum, it was at least not granted to the plaintiff. At trial, defendants will be armed with all of this evidence to best support their defense and overcome liability arguments.

For the defendants, the case demonstrates the importance of locking the plaintiff into early testimony, supporting the defendants’ arguments, and demonstrating proper precautions were indeed taken. While a difficult task, one made more complicated when a plaintiff is adequately prepped for his deposition, it is important to know which cases will need to be relied upon to be victorious on summary judgment before taking the plaintiff's testimony. If a case looks like one where the defendants may have a chance on summary judgment, creative ways should be employed to lock plaintiffs into testimony that bolsters a proper defense. For instance, in McCormack v. Universal Carpet & Upholstery Cleaners, 29 A.D.3d 541 (2nd Dept. 2006), the Appellate Division upheld summary judgment on a similar eye injury case, where the plaintiff had testified that he owned his own protective goggles but failed to wear them. 

While it is not always possible to secure a plaintiff's testimony in your favor, this case is an important lesson on how much deference the courts will give to plaintiff's own uncorroborated testimony in injury cases.