The recent Appellate Division, Second Department decision in Carella v. Reilly & Assocs. made the New York Law Journal’s Decision of the Day.  Plaintiff was injured when he fell off a Baker scaffold while taping a ceiling in a single family house.  After the accident, the principal of the plaintiff’s employer, took the scaffold home to inspect it.   The general contractor asserted that he found nothing wrong with the scaffold, and put it back into use, at which point it became indistinguishable from three other identical scaffolds owned by the company.

In the prior appeal, the Second Department dismissed as academic the general contractor’s cause of action for spoliation against the plaintiff’s employer based on the ground that the employer demonstrated that the injured worker did not sustain a serious injury under Workers’ Compensation Law sec. 11 (Download workers_comp. law sec. 11.doc).  On the appeal at issue, the Second Department rejected the employer’s contention that res judicata, colleteral estoppel and the law of the case barred the general contractor’s spoliation claim, concluding that a determination that an issue is academic is not a determination on the merits.  In any event, the Court rejected the general contractor’s argument that it had a viable cause of action for the employer’s spoliation of evidence.