Partner David Schultz obtained two successful decisions on behalf of clients of the firm. In the first case, the Appellate Division, Second Department reversed the lower court’s decision against the firm’s client. David successfully argued that the trial judge committed reversible error in awarding summary judgment to a plaintiff on his Labor Law § 240(1) cause of action. The accident occurred at a Brooklyn-based school, owned and operated by our client. Over the course of the school’s seasonal break, the maintenance staff engaged in a project that included the painting of classrooms on the second floor. The plaintiff, a member of the school’s maintenance staff, was asked to come to the first floor and remove garbage bags from a raised shelf. In order the access the shelf, plaintiff leaned an unopened A-frame ladder against the wall. His accident occurred when the ladder slid out from underneath him. The plaintiff testified that the shelf was going to be painted after he removed the bags. In contrast, his boss and two co-workers testified that no painting was going to take place on the first floor. In the appellate court, David was able to demonstrate that the lower court’s decision that the Labor Law applied because there was painting going on upstairs was in error. Thus, the appellate court agreed that plaintiff’s motion should have been denied as there was an issue of fact as to whether he was simply engaged in routine maintenance that fell outside of the Labor Law.
In the second case pending in New York County, David obtained summary judgment based upon a primary assumption of the risk doctrine on behalf our client, the owner and operator of recreational sports league. The plaintiff, an experienced basketball player participating in our client’s recreational basketball league, struck his head on a concrete wall behind the backboard after being fouled in the midst of a game. In addition to establishing that the primary assumption of the risk doctrine applied and that the distance between the concrete wall and the baseline of the court was an open and obvious condition, we demonstrated that the opinion of plaintiff’s expert concerning the alleged failure of the gym to comply with applicable standards was insufficient to raise an issue of fact. The Supreme Court agreed with our argument that our client was not liable as the plaintiff assumed the risk of his injuries through his voluntary participation in an athletic event whose risks were readily apparent.