Mescall v. Structure-Tone, Inc.

Appellate Division of the Supreme Court of New York

Mescall v. Structure-Tone, Inc.

49 A.D.3d 339, 852 N.Y.2d 763

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 13, 2008

StatusPublished

This text of 49 A.D.3d 339 (Mescall v. Structure-Tone, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mescall v. Structure-Tone, Inc., 49 A.D.3d 339, 852 N.Y.2d 763 (N.Y. Ct. App. 2008).

Pincite

Opinion

Plaintiff, an ironworker, was injured when a crane that was lifting a 25-by-25-foot steel “screen” or “curtain” failed, causing the screen to fall some 20 feet in the air before striking plaintiff. Although defendant asserts that it instructed plaintiff to use steel “cradles” to prepare the screens for hoisting, plaintiff and the coworker attested that no such cradles were available on the date of the accident, and defendant adduces no evidence to the contrary. Thus, defendant cannot argue that plaintiff was a recalcitrant worker, or that his actions were the sole proximate cause of the accident (see Rivera v Ambassador Fuel & Oil Burner Corp., 45 AD3d 275, 276 [2007]; Ramos v Port Auth. of N.Y. & N.J., 306 AD2d 147 [2003]). We have considered defendant’s other arguments and find them unavailing. Concur—Lippman, P.J., Andrias, Williams and McGuire, JJ.

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Plaintiff, an ironworker, was injured when a crane that was lifting a 25-by-25-foot steel “screen” or “curtain” failed, causing the screen to fall some 20 feet in the air before striking plaintiff. Although defendant asserts that it instructed plaintiff to use steel “cradles” to prepare the screens for hoisting, plaintiff and the coworker attested that no such cradles were available on the date of the accident, and defendant adduces no evidence to the contrary. Thus, defendant cannot argue that plaintiff was a recalcitrant worker, or that his actions were the sole proximate cause of the accident (see Rivera v Ambassador Fuel & Oil Burner Corp., 45 AD3d 275, 276 [2007]; Ramos v Port Auth. of N.Y. & N.J., 306 AD2d 147 [2003]). We have considered defendant’s other arguments and find them unavailing. Concur—Lippman, P.J., Andrias, Williams and McGuire, JJ.

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Bluebook (online)

49 A.D.3d 339, 852 N.Y.2d 763, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mescall-v-structure-tone-inc-nyappdiv-2008.

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