The New York Court of Appeals’ sua sponte merits procedure provides an excellent mechanism for the Court to handle those "settled" issues of law that reach it through the 2-Justice Dissent track to get to the Court of Appeals (see Court rule 500.11).  Please note that this isn’t the only reason for the SSM procedure.  However, decisions on the SSM track sometime require a bit of detective work.

The recent case of Keavy v. New York State Dormitory Auth. provides a good example of some of the procedure’s weaknesses.  This matter implicates an important concept of Labor Law sec. 240(1), but it takes a bit of digging to get its implications.

In Keavy, the plaintiff was covering an eight-foot-high stack of insulation boards with a tarp.   The plaintiff was walking backwards on top of the stack of boards and was pulling the tarp when his right foot slipped into a gap between the boards.   How far he fell between the boards is in dispute between the Fourth Department’s Majority and Dissenting opinion (see decision here)   — either falling into the gap up to his knee or elbow (see excellent posts on this case by Nicole over at "Sui Generis" here and here).

The Court held that the accident was not gravity related, citing Toefer v. Long Island R.R. and Rocovich v. Consolidated Edison Co.  The citation to Toefer indicates to me that the height-differential here — at most 8 feet — was not the kind of danger sec. 240(1) contemplated under these circumstances.  The Court’s citation to Toefer in combination with Rocovich indicates to me that certain accidents, although technically height-related, do not fall under sec. 240(1).  What safety device set forth in sec. 240(1) could have possibly prevented this accident?  That observation seems to be the Court’s point of this decision.