The Court of Appeals Concludes the Plaintiff Does Not Get a Second Bite at The Apple


In Bonczar v. American Multi-Cinema, Inc, plaintiff fell from a ladder while retrofitting a fire-alarm system at a movie theater. After ascending and descending the ladder several times, plaintiff fell when he descended the ladder, and it shifted and wobbled. The Appellate Division had previously refused to grant plaintiff summary judgment on sec. 240(1). The matter then went to trial where the jury found for the defendant. The Supreme Court refused to set aside the verdict. The primary issues on appeal involved whether the Court could review the Appellate Division’s 2018 order. The unanimous Court ruled that it could not because the “nonfinal order” did not remove any issues from the case, but rather, the question of causation and liability was left undecided. Therefore, the Appellate Division’s order denying summary judgment “did not necessarily affect the final judgment and thus, this Court cannot review the 2018 Appellate Division order.”

The Fourth Department’s 2018 ruling (158 A.D.3d 1114) provides insight as to why plaintiff’s motion was denied. According to the Fourth Department’s majority, “Plaintiff did not know why the ladder wobbled or shifted, and he acknowledged that he might not have checked the positioning of the ladder or the locking mechanism, despite having been aware of the need to do so.” Relying on Blake v. Neighborhood Hous., 1 N.Y.3d 280 (2003), “(w)e thus conclude that plaintiff failed to meet his initial burden on the motion. ‘[T]here is a plausible view of the evidence—enough to raise a fact question—that there was no statutory violation and that plaintiff’s own acts or omissions were the sole cause of the accident.’” The Court then affirmed the judgment as a rational jury could have found in favor of defendant.