| DiPalma v State of New York |
| 2011 NY Slip Op 09724 [90 AD3d 1659] |
| December 30, 2011 |
| Appellate Division, Fourth Department |
| Jeffrey DiPalma, Respondent, v State of New York,Appellant. (Claim No. 111910.) |
—[*1] Cantor, Lukasik, Dolce & Panepinto, P.C., Buffalo (Stephen C. Halpern of counsel), forclaimant-respondent.
Appeal from a judgment of the Court of Claims (Jeremiah J. Moriarty, III, J.), datedNovember 26, 2010 in a personal injury action. The judgment determined defendant to be 100%liable pursuant to Labor Law § 240 (1) and § 241 (6).
It is hereby ordered that the judgment so appealed from is unanimously affirmed withoutcosts.
Memorandum: Claimant commenced this Labor Law and common-law negligence actionseeking damages for injuries he sustained when a large "skid box" containing concrete debris slidoff of a forklift and struck him. Following the liability portion of a bifurcated trial, the Court ofClaims determined that defendant, the property owner, was liable for claimant's injuries pursuantto Labor Law § 240 (1) and § 241 (6). Defendant contends that the court shouldhave applied the falsus in uno doctrine and discredited claimant's trial testimony concerning theway in which the accident occurred because that testimony differed in some respects fromclaimant's deposition testimony. We reject that contention. The falsus in uno doctrine permits afactfinder to disregard entirely the testimony of a witness who has willfully testified falsely withrespect to any material fact. The doctrine, however, is "not mandatory," and the court is free tocredit any part of a witness's testimony that it deems true and disregard what it deems false(People v Johnson, 225 AD2d 464, 464 [1996]; see Accardi v City of New York,121 AD2d 489, 490-491 [1986]). The inconsistencies identified by defendant are not sosignificant as to render claimant's trial testimony incredible as a matter of law, and the court'sdetermination to credit that testimony, at least in part, is entitled to deference (see Ring v State of New York, 8 AD3d1057 [2004], lv denied 3 NY3d 608 [2004]; Goncalves v State of New York, 1 AD3d 914 [2003]; seegenerally Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492,499 [1983]). We note that claimant's trial testimony was consistent with that of the otherwitnesses who were present when the accident occurred.
Defendant further contends that Labor Law § 240 (1) is inapplicable because there wasno significant height differential between the skid box and the platform onto which it fell, whereclaimant was working at the time of the accident. We reject that contention. The "core premise"of our Labor Law § 240 (1) jurisprudence is "that a defendant's failure to provide workerswith [*2]adequate protection from reasonably preventable,gravity-related accidents will result in liability" (Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 4[2011]). Here, similar to the plaintiff in Wilinski, claimant "suffered harm that 'flow[ed]directly from the application of the force of gravity' " to the object that struck him (id. at7). Moreover, "the single decisive question is whether plaintiff's injuries were the directconsequence of a failure to provide adequate protection against a risk arising from a physicallysignificant elevation differential" (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]),and the experts who testified on behalf of both parties agreed that the failure to use a protectivedevice to secure the skid box to the forklift was improper. Although the skid box fell only one ortwo feet before it struck claimant, in light of the weight of the skid box and its contents, as wellas the potential harm that it could cause, it cannot be said that the elevation differential was deminimis (see id. at 605).
We also reject defendant's contention that the court erred in determining that it was liableunder Labor Law § 241 (6). The section 241 (6) cause of action was based on an allegedviolation of 12 NYCRR 23-2.1 (b), pursuant to which "[d]ebris shall be handled and disposed ofby methods that will not endanger any person employed in the area of such disposal or anyperson lawfully frequenting such area." We have previously held that 12 NYCRR 23-2.1 (b) issufficiently specific to support liability under section 241 (6) (see Coleman v ISG Lackawanna Servs., LLC, 74 AD3d 1825[2010]; Kvandal v Westminster Presbyt. Socy. of Buffalo, 254 AD2d 818 [1998]). It isundisputed that claimant was injured while in the process of removing debris and, contrary todefendant's contention, it is not necessary for claimant to have been struck by debris for theregulation to apply (see Coleman, 74 AD3d 1825). In any event, the record containsevidence that claimant was in fact struck by debris that fell out of the skid box, in addition to theskid box itself. Present—Fahey, J.P., Peradotto, Lindley, Green and Gorski, JJ.