A divided Court of Appeals ruled, in a 4-3 decision, that the defendant owner presented sufficient evidence regarding the adequacy of the safety device at issue to defeat the plaintiff’s motion for summary judgment. The case, O’Brien v. Port Authority of NY and NJ, involved a construction worker who slipped on an exterior metal stairway. Defendant owner submitted two affidavits from a professional engineer who is a construction safety expert. This expert opined both that the stairway met industry standards and provided adequate protection. While the lengthy dissent by Judge Rivera, joined by Judges Fahey and Wilson, focused on prior Labor Law 240 case law holding that compliance with industry standards is not sufficient to prove a safety device is adequate protection, the majority opinion written by Chief Judge DiFiore (who was joined by Judges Abdus-Salaam, Stein and Garcia) explained that the defendant’s expert also raised an issue of fact to be decided at trial on the matter of whether the stairway provided adequate protection under Labor Law 240. This is a welcome pro-defendant decision by New York’s highest court on Labor Law 240, since it allows the defense to provide an expert affidavit detailing why the device is safe and proper with such affidavit acting to prevent granting summary judgment for the plaintiff.

The Third Department, Appellate Division, ruled in favor of Kingstone’s insured defendant in the case of Vasilatos v. Dzamba. NYIA filed an amicus brief in this appeal. Vasilatos arose out of a lawsuit brought in Albany County Supreme Court for damages sustained from lead poisoning that allegedly occurred 24 years prior to the suit when plaintiff ingested lead paint from the defendants’ apartment. Defendants moved to dismiss the complaint on the ground that the statute of limitations barred the lawsuit. Plaintiff contended that the statute of limitations did not begin to run until plaintiff discovered her injuries were caused by lead paint. Defendants and NYIA argued that, in the case of toxic torts such as lead poisoning cases, the time period for when the statute of limitations begins is when the condition or symptom is discovered, or reasonably should have been discovered, not when the injured party discovers the specific cause of the condition or symptom.