The New York Court of Appeals on Thursday handed down its memorandum decision in Outar v. City of New York.  The terse memorandum — the unfortunate result of the Court’s sua sponte merits process — does not reveal the complexities of this case. 

Since the underlying Appellate Division, Second Department decision is not online, I offer this brief factual recitation:

The injured plaintiff, a track worker for the New York City Transit Authority, allegedly was injured while working on subway tracks. He was lifting pieces of track and replacing them when an unsecured dolly, which was used in his work and stored on top of a "bench wall" that was 5 1/2 feet high and adjacent to the worksite, fell and hit him.   The plaintiff alleged that he was injured when the unsecured dolly fell from the top of the bench wall while he was engaged in replacing pieces of the tracks, and the defendant did not assert that the dolly was secured prior to the accident.

The Court held that the height differential of 5 1/2 feet was sufficient for the incident to fall within the ambit of Labor Law sec. 240(1).  Juxtapose this height differential from the 5-foot height differential off of a flatbed truck in Marvin v. Korean Air, Inc.

Thank you Michael Hutter for bringing this case to my attention.