Bowman v. Beach Concerts, Inc.

50 A.D.3d 391, 858 N.Y.S.2d 93

Opinion

Order, Supreme Court, New York County (Richard F. Braun, J.), entered November 6, 2006, which denied plaintiffs motion to vacate an order of dismissal, unanimously modified, on the law and the facts, to reinstate the Labor Law § 200 and common-law negligence claims, and otherwise affirmed, without costs.

Plaintiff demonstrated a reasonable excuse for his default, i.e., law office failure (see ICBC Broadcast Holdings-NY, Inc. v Prime Time Adv., Inc., 26 AD3d 239, 240 [2006]; Mediavilla v Gurman, 272 AD 2d 146, 148 [2000]), and meritorious Labor Law § 200 and common-law negligence claims, based on evidence that the operation of a forklift by an untrained, self-designated coworker created an unsafe workplace (see Griffin v New York City Tr. Auth., 16 AD3d 202 [2005]). As to his Labor Law § 241 (6) claim, however, plaintiff failed to demonstrate that his injury occurred in the context of construction, excavation or demolition work (see Nagel v D & R Realty Corp., 99 NY2d 98, 103 [2002]). Concur—Mazzarelli, J.P., Andrias, Gonzalez and Acosta, JJ.