The Court of Appeals in the case of Bianca-Neto v. Boston Road II Housing Development Fund Corp., 34 N.Y.3d 1166, 121 N.Y.S.3d 753 (2020), in a 4/3 decision, has arguably used the concept of acquiescence to expand liability under Labor Law 240 or at least to narrow the scope of the recalcitrant worker defense.
Plaintiff was standing on a scaffold frame when he unhooked himself and rather than leave using the stairs, or a hoist, climbed through a window cut-out in the building and fell. The general contractor had previously issued standing orders not to enter the building through the window cut-outs, but there was no evidence that this Order was conveyed to the plaintiff. There was testimony, however, that plaintiff and his co-workers had used this method in the past. In reversing both the Supreme Court and Appellate Division, the Court of Appeals held that it was a question of fact as to whether the plaintiff knew he was expected to use “safety devices” which precluded summary judgment. The Court pointed out that entering through the window cut-outs was “an apparent accepted practice of entering the building” to which the defendants had acquiesced, reasoning that this might have negated the normal and logical inclination to use the scaffold, stairs or hoist to descend, in which case plaintiff’s conduct would not have been the sole proximate cause of his injury nor would he have been a “recalcitrant worker.”
It appears the Court used the concept of “acquiescence” to narrow the recalcitrant worker defense.
The Appellate Division, First Department, in Kolakowski v. 10839 Associates, 2020 WL 3579548, a case decided July 2, 2020, denied summary judgment citing to Bianca-Neto finding “summary judgment in either party’s favor on plaintiff’s Labor Law Section 240(1) claim is precluded by issues of fact as to whether and to what extent plaintiff’s employer directed him to use a safety harness, and whether plaintiff’s failure to abide by any such direction rendered him a recalcitrant worker and, thus, the sole proximate cause of his accident.”
Based on these decisions, it appears that the pendulum is swinging back in plaintiff’s favor.
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Marc H. Pillinger, Executive Partner
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Jeffrey T. Miller, Executive Partner
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