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Back Pain

Supreme Court of the State of New York
Appellate Division – First Department

Collado v. City of New York & Parsons Brinckerhoff
Construction Services

Arnold E. DiJoseph, III, for Plaintiffs-Appellants    

Tom, Justice Presiding and Associate Justices Mazzarelli, Nardelli, Acosta and Renwick

Decided April 6, 2010                                                        

Arnold E. DiJoseph, III, Plaintiff-Respondent

In this case, Plaintiff's husband, a dock builder, was standing on the fender system at the base of the Third Avenue Bridge handling an air hose used to supply power to pneumatic dock building tools when he lost his footing, fell backward 10 feet into the East, and drowned.
The dead worker’s wife sought summary judgment on the issue of liability against Defendants the City of New York and the New York City Department of Transportation under the absolute liability provisions of the New York State Labor Law §240(1), which is a law designed to give workers particular protection in situations where their work is height-related and they are injured as a result of one or more statutory violations. The lower court agreed that Plaintiff was entitled to summary judgment against the City Defendants and those Defendants appealed to the Appellate Division.

On the appeal, Mr. DiJoseph convinced the Court that “Plaintiff demonstrated that the city defendants' failure to provide adequate safety devices against an elevation-related hazard, as required under Labor Law § 240 (1), was a contributing cause of the decedent's injuries and therefore that the decedent was not the sole proximate cause of his injuries. The city defendants failed to raise an inference that the life vest that had been provided to the decedent was an adequate safety device and that the decedent's alleged decision not to wear it was the sole proximate cause of his injuries.” The Court also agreed that, “Contrary to the city defendants' argument, the fender system from which the decedent fell was a ‘work location’ within the meaning of” the applicable provision of the Industrial Code “given the evidence that workers, including the decedent, performed work duties on it.”




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