Josh Kardisch and Florina Altshiler Win Second Fourth Department Appeal In Same Labor Law § 240(1) C
In February, 2018, Josh Kardisch won the reversal of summary judgment for plaintiff in the Appellate Division, Fourth Department in Bonczar v. American Multi-Cinema, Inc., et al, 2018 NY Slip Op 00712 (4th Dept. 2018). The plaintiff claimed to have sustained injuries after falling from a ladder in a movie theater which defendant owned. The lower court granted plaintiff summary judgment on his claim for violation of Labor Law § 240 (1). The Appellate Division, Fourth Department reversed the decision and found an issue of fact requiring a trial because the plaintiff had acknowledged that he “might not have checked the positioning of the ladder or the locking mechanism, despite having been aware of the need to do so.” For that reason, the Court held, there is a “plausible view of the evidence – enough to raise a fact question – that there was no statutory violation and that plaintiff’s own acts or omissions were the sole cause of the accident.”
Over Florina Altshiler’s objection at trial, Judge Glownia read jury instructions that substantially diverged from the pattern, including that the statute imposes liability whether or not defendant was at fault and whether or not he was the sole proximate cause of his fall. The judge also instructed the jury that it was “undisputed” that the ladder shifted or wobbled for no apparent reason and that plaintiff is not required to prove that there was a physical defect in the ladder.
After a two-week trial with two experts and several fact witnesses, Florina Altshiler convinced the jury that the ladder provided proper protection and did not violate Labor Law § 240 (1) and that the plaintiff’s conduct was the sole proximate cause of the accident. Accordingly, the jury rendered a unanimous verdict of no liability in favor of the defendant.
Plaintiff appealed the verdict to the Fourth Department. After orally arguing the appeal in a Zoom video-appearance, Josh Kardisch secured a unanimous affirmance of the verdict in defendant’s favor.