Hernandez v. Olympic Tower Associates
NEW YORK COUNTY
Justice Cynthia Kern
Hernandez sued to recover for injuries allegedly sustained during his employment and sought partial summary judgment on the issue of liability under Labor Law §240(1). Hernandez was working on ducts with his foreman, Cruz. Since the duct lift was broken, Hernandez was pulling up pieces with a rope. He claimed as he was freeing the duct work from a pipe it began to fall, and Hernandez tried to pull back the rope so it would not hit Cruz, and heard a "rip in his shoulder." He claims he sustained an acute tear of the right rotator cuff, among other injuries. The court ruled Hernandez is entitled to partial summary judgment as he showed his injury occurred from the failure to provide an adequate safety device to hoist and secure the 60-pound duct work as in violation of §240(1). It noted his injury "clearly flowed directly from the application of the force of gravity onto the duct work," finding no other explanation for the accident. The court found it was foreseeable Hernandez might try to hold the duct work if there was a risk of injury to his co-worker, also noting comparative negligence was not a defense to imposition of liability under §240(1). Thus, his motion was granted.
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