Labor Law 240: Guizzotti v. Advanced Gutter Sys., Inc. (N.Y. Sup. Ct., Erie Co.)


December 31, 2017

by Robert D. Leary, Esq. and Anant Kishore, Esq.

 

In Guizzotti, plaintiff alleged he fell off a ladder while he was performing gutter replacement work for a subcontractor retained by defendant.  Because the accident was unwitnessed, plaintiff provided the only account of how the accident allegedly occurred.  In opposition to plaintiff’s motion on the Labor Law 240 claim, defendant pointed out several inconsistencies within plaintiff’s testimony, including details about the mechanics of the accident (i.e., whether the ladder “kicked out” or “twisted,” or whether the left foot fell into a crevice); the height from which plaintiff allegedly fell (i.e., 8 feet, 10 feet, or 15 feet); and the surface onto which plaintiff landed (i.e., path stones or grass).

 

Defendant also pointed out inconsistencies between the testimony of plaintiff and his supervisor as to the aftermath of the accident, including whether plaintiff was on the ground in pain and required his supervisor’s assistance in getting up (per plaintiff), or whether the supervisor did not know plaintiff fell until plaintiff later told him so, never saw plaintiff on the ground, and never helped plaintiff up (per plaintiff’s supervisor). In addition, Defendant pointed out that the metadata of certain digital photographs (produced by plaintiff) depicting a ladder standing upright at the site suggest that plaintiff misrepresented certain facts as to whether the ladder fell down.  Defendant argued that, despite the lack of any proof supporting an alternate theory of the unwitnessed accident, all of the inconsistencies in plaintiff’s testimony, taken together, and bolstered by the metadata issues with plaintiff’s photographs, put plaintiff’s credibility at issue and prevent summary judgment on plaintiff’s Labor Law 240 claims.  The Supreme Court, Erie County, denied plaintiff’s motion for summary judgment, finding questions of fact as to who placed the ladder at the site, the circumstances surrounding the fall, and a possibility that the fall may not have occurred.