SUMMARY JUDGMENT MOTIONS
UNDER THE LABOR LAW

INTRODUCTION

Summary judgment motions have become a routine part of claims brought under New York's Labor Law. The resolution of these motions will almost always result in an appeal. As one Judge eloquently stated during oral argument "It really doesn't matter which way I decide this case. Whoever the looser is, is going to appeal it anyways. Then the Appellate Division can figure it out." As more and more courts become frustrated with the appearance of conflicting Appellate Division decisions, sometimes even within the same department, this type of judicial frustration has dramatically altered the perception of labor law cases, especially under §240(1). In the late 1970's and early 1980's the term absolute liability was used in a very literal sense: if a worker is hurt on a construction site plaintiff wins, defendant looses. Over the past twenty-five years the defense bar has been very persistent, and effective, in exploiting very subtle issues and factual differences in defending labor law claims. Currently there are more Appellate Division decisions affirming the denial of summary judgment motions to the plaintiffs then those which affirm in favor of the plaintiff. This topic will explore suggestions on how to deal with labor law summary judgment motions in this new millennium.

I. WHY MAKE A MOTION FOR SUMMARY JUDGMENT?
II. WHEN TO MAKE YOUR MOTION: BEFORE OR AFTER THE NOTE OF ISSUE?
III. NECESSARY ELEMENTS OF LAW
IV. PROVING THE ELEMENTS OF 240(1): A CHECK LIST FOR SETTING FORTH YOUR PRIMA FACIA CASE.
V. PROVING THE ELEMENTS OF A 240(2) CLAIM
VI. PROVING THE ELEMENTS UNDER §241 (1-5):
VII. PROVING THE ELEMENTS FOR §241-a:
VIII. PROVING THE NECESSARY ELEMENTS UNDER §241(6):
IX. DEFENSES
X. PAPERS TO BE SUBMITTED: (SEE SAMPLE MOTION ATTACHED).
XI. PLAINTIFF'S MOTION FOR JUDGEMENT ON THE ISSUE OF DAMAGES
Endnotes