In Wysk v. NYC School Construction Authority, the plaintiff was injured when he was struck by a wind-blown tar bucket while he was working on a school roof 75 feet above the ground. At first blush, the plaintiff should have been entitled to prevail on his Labor Law claims as a matter of law.

There was one small (read: big) problem, however: the defendant had closed the worksite that day due to the inclement weather, and the plaintiff's employer (and the plaintiff) didn't belong on the site at that time.

Strangely, despite holding that the defendant's proof that the site was closed at the time necessarily precluded finding in plaintiff's favor as a matter of law on his claims, the Court also denied the defendant's motion on the grounds that the defendant's proof was insufficient to warrant a judgment in their favor either.

I suspect the defendants will appeal this order, and I would not be surprised if they win this on appeal.
Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer
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