DiPalma v. State, 90 A.D.3d 1659 (N.Y. App. Div. 2011). · Go Syfert
DiPalma v. State, 90 A.D.3d 1659 (N.Y. App. Div. 2011). Cases Citing This Book View Copy Cite
27 citation events (27 in the last 25 years) across 4 distinct courts.
Strongest positive: Ells v. City of Niagara Falls (nyappdiv, 2024-10-04)
Treatment trajectory · 2012 → 2026 · click a year to view as-of
2012 2019 2026
Top citers, strongest first. 17 distinct citers. How cited ↗
discussed Cited as authority (rule) Ells v. City of Niagara Falls
N.Y. App. Div. · 2024 · confidence medium
Plaintiff also submitted uncontradicted evidence that the use of the wood chipper to dispose of debris by mulching felled trees was not done safely because the wood chipper had been placed within the area where trees were falling, in violation of 12 NYCRR 23-2.1 (b) ( see DiPalma v State of New York , 90 AD3d 1659, 1661 [4th Dept 2011]).
discussed Cited as authority (rule) Ross v. Northeast Diversification, Inc.
N.Y. App. Div. · 2023 · confidence medium
Contrary to Northeast's further contention, 12 NYCRR 23-2.1 (b) is sufficiently specific to support a Labor Law § 241 (6) cause of action ( see Finocchi v Live Nation Inc. , 141 AD3d 1092 , [*3]1094 [4th Dept 2016]; DiPalma v State of New York , 90 AD3d 1659, 1661 [4th Dept 2011]).
discussed Cited as authority (rule) Shantz v. Barry Steel Fabrication, Inc.
N.Y. App. Div. · 2022 · confidence medium
Contrary to the remaining defendants' further contentions, defendants also failed to establish as a matter of law that no safety device of the kind enumerated in the statute would have prevented the accident under the circumstances ( see Ortiz v Varsity Holdings, LLC , 18 NY3d 335, 339 [2011]), and although the elevation differential was "only one or two feet . . . , in light of the weight of the [scissors lift], as well as the potential harm that it could cause, it cannot be said that the elevation differential was de minimis" ( DiPalma v State of New York , 90 AD3d 1659, 1660 [4th Dept 2011]…
discussed Cited as authority (rule) Graham v. Jones
N.Y. App. Div. · 2017 · confidence medium
We agree with plaintiff that Vlad Kats, the president of BAR, as well as Jones and Kirksey, “gave wildly differing testimon[y] [at their depositions] concerning all issues relevant to the negligent entrustment cause of action.” In the event they so testify at trial, such inconsistent testimony may warrant a falsus in uno charge {see generally DiPalma v State of New York, 90 AD3d 1659, 1660 [2011]).
discussed Cited as authority (rule) Graham v. Jones
N.Y. App. Div. · 2017 · confidence medium
We agree with plaintiff that Vlad Kats, the president of BAR, as well as Jones and Kirksey, “gave wildly differing testimon[y] [at their depositions] concerning all issues relevant to the negligent entrustment cause of action.” In the event they so testify at trial, such inconsistent testimony may warrant a falsus in uno charge {see generally DiPalma v State of New York, 90 AD3d 1659, 1660 [2011]).
discussed Cited as authority (rule) Finocchi v. Live Nation Inc.
N.Y. App. Div. · 2016 · confidence medium
Although that regulation, which deals with the disposal of debris, is sufficiently specific to support a section 241 (6) claim (see DiPalma v State of New York, 90 AD3d 1659, 1661 [2011]), it is inapplicable to the facts of this case.
discussed Cited as authority (rule) Finocchi v. Live Nation Inc.
N.Y. App. Div. · 2016 · confidence medium
Although that regulation, which deals with the disposal of debris, is sufficiently specific to support a section 241 (6) claim (see DiPalma v State of New York, 90 AD3d 1659, 1661 [2011]), it is inapplicable to the facts of this case.
discussed Cited as authority (rule) MITCHELL, MARGUERITE v. NRG ENERGY, INC.
N.Y. App. Div. · 2015 · confidence medium
“We have previously held that 12 NYCRR 23-2.1 (b) is sufficiently specific to support liability under section 241 (6)” (DiPalma v State of New York, 90 AD3d 1659, 1661 [2011]), and “[t]he court properly concluded that defendant [s] [were] not prejudiced by [plaintiffs] delay in identifying the alleged violation of [that] section[ ] of the Industrial Code” (Gizowski v State of New York, 66 AD3d 1348, 1349 [2009]).
discussed Cited as authority (rule) Washington Mutual Bank v. Holt
N.Y. App. Div. · 2014 · confidence medium
Where a wit ness has given testimony that is demonstrably false, we may, in accordance with the maxim falsus in uno falsus in omnibus, choose to discredit or disbelieve other testimony given by that witness (see DiPalma v State of New York, 90 AD3d 1659, 1660 [2011]; Accardi v City of New York, 121 AD2d 489, 490-491 [1986]; see generally People v Becker, 215 NY 126, 144 [1915]).
discussed Cited as authority (rule) Washington Mutual Bank v. Holt
N.Y. App. Div. · 2014 · confidence medium
Where a wit ness has given testimony that is demonstrably false, we may, in accordance with the maxim falsus in uno falsus in omnibus, choose to discredit or disbelieve other testimony given by that witness (see DiPalma v State of New York, 90 AD3d 1659, 1660 [2011]; Accardi v City of New York, 121 AD2d 489, 490-491 [1986]; see generally People v Becker, 215 NY 126, 144 [1915]).
discussed Cited as authority (rule) Zarnoch v. Luckina
N.Y. App. Div. · 2013 · confidence medium
Fund Corp., 18 NY3d 1, 7 [2011]), and that his injury was “ ‘the direct consequence of [defendant’s] failure to provide adequate protection against’ ” the gravity-related accident (DiPalma v State of New York, 90 AD3d 1659, 1660 [2011], quoting Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]; see Wilinski, 18 NY3d at 6 ; McCallister v 200 Park, L.P., 92 AD3d 927, 928-929 [2012]), and defendant failed to raise an issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
discussed Cited as authority (rule) Zarnoch v. Luckina
N.Y. App. Div. · 2013 · confidence medium
Fund Corp., 18 NY3d 1, 7 [2011]), and that his injury was “ ‘the direct consequence of [defendant’s] failure to provide adequate protection against’ ” the gravity-related accident (DiPalma v State of New York, 90 AD3d 1659, 1660 [2011], quoting Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]; see Wilinski, 18 NY3d at 6 ; McCallister v 200 Park, L.P., 92 AD3d 927, 928-929 [2012]), and defendant failed to raise an issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
cited Cited as authority (rule) Jackson v. Heitman Funds/191 Colonie LLC
N.Y. App. Div. · 2013 · confidence medium
Trust, 99 AD3d at 37; Marrero v 2075 Holding Co. LLC, 106 AD3d 408, 409 [2013]; Kempisty v 246 Spring St., LLC, 92 AD3d 474, 474 [2012]; DiPalma v State of New York, 90 AD3d 1659, 1660 [2011]).
cited Cited as authority (rule) Jackson v. Heitman Funds/191 Colonie LLC
N.Y. App. Div. · 2013 · confidence medium
Trust, 99 AD3d at 37; Marrero v 2075 Holding Co. LLC, 106 AD3d 408, 409 [2013]; Kempisty v 246 Spring St., LLC, 92 AD3d 474, 474 [2012]; DiPalma v State of New York, 90 AD3d 1659, 1660 [2011]).
discussed Cited as authority (rule) Oakes v. Wal-Mart Real Estate Business Trust
N.Y. App. Div. · 2012 · confidence medium
Subsequent Appellate Division cases, however, arguably have taken the approach that an elevation differential must be deemed “significant” under Runner— and, thus, trigger the applicability of the statute — whenever “gravity-related accidents” result in injury (DiPalma v State of New York, 90 AD3d 1659, 1660 [2011] [internal quotation marks and citation omitted]; see McCallister v 200 Park, L.P., 92 AD3d 927, 928-929 [2012]; Pritchard v Tully Constr.
discussed Cited as authority (rule) Oakes v. Wal-Mart Real Estate Business Trust
N.Y. App. Div. · 2012 · confidence medium
Subsequent Appellate Division cases, however, arguably have taken the approach that an elevation differential must be deemed “significant” under Runner— and, thus, trigger the applicability of the statute — whenever “gravity-related accidents” result in injury (DiPalma v State of New York, 90 AD3d 1659, 1660 [2011] [internal quotation marks and citation omitted]; see McCallister v 200 Park, L.P., 92 AD3d 927, 928-929 [2012]; Pritchard v Tully Constr.
cited Cited "see" Rivera v. Rotavele El. Inc.
N.Y. Sup. Ct., New York Cty. · 2024 · signal: see · confidence high
See Dipalma v State ofNew York, 90 AD3d 1659, 1661 (4th Dept 2011).
Retrieving the full opinion text from the archive…
Jeffrey DiPalma
v.
State of New York
Claim No. 111910.
Appellate Division of the Supreme Court of the State of New York.
Dec 30, 2011.
90 A.D.3d 1659
Cited by 24 opinions  |  Published
Memorandum:

Claimant commenced this Labor Law and common-law negligence action seeking damages for injuries he sustained when a large “skid box” containing concrete debris slid off of a forklift and struck him. Following the liability por[*1660] tion of a bifurcated trial, the Court of Claims determined that defendant, the property owner, was liable for claimant’s injuries pursuant to Labor Law § 240 (1) and § 241 (6). Defendant contends that the court should have applied the falsus in uno doctrine and discredited claimant’s trial testimony concerning the way in which the accident occurred because that testimony differed in some respects from claimant’s deposition testimony. We reject that contention. The falsus in uno doctrine permits a factfinder to disregard entirely the testimony of a witness who has willfully testified falsely with respect to any material fact. The doctrine, however, is “not mandatory,” and the court is free to credit any part of a witness’s testimony that it deems true and disregard what it deems false (People v Johnson, 225 AD2d 464, 464 [1996]; see Accardi v City of New York, 121 AD2d 489, 490-491 [1986]). The inconsistencies identified by defendant are not so significant as to render claimant’s trial testimony incredible as a matter of law, and the court’s determination to credit that testimony, at least in part, is entitled to deference (see Ring v State of New York, 8 AD3d 1057 [2004], lv denied 3 NY3d 608 [2004]; Goncalves v State of New York, 1 AD3d 914 [2003]; see generally Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]). We note that claimant’s trial testimony was consistent with that of the other witnesses who were present when the accident occurred.

Defendant further contends that Labor Law § 240 (1) is inapplicable because there was no significant height differential between the skid box and the platform onto which it fell, where claimant was working at the time of the accident. We reject that contention. The “core premise” of our Labor Law § 240 (1) jurisprudence is “that a defendant’s failure to provide workers with adequate protection from reasonably preventable, gravity-related accidents will result in liability” (Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 4 [2011]). Here, similar to the plaintiff in Wilinski, claimant “suffered harm that ‘flow[ed] directly from the application of the force of gravity’ ” to the object that struck him (id. at 7). Moreover, “the single decisive question is whether plaintiffs injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]), and the experts who testified on behalf of both parties agreed that the failure to use a protective device to secure the skid box to the forklift was improper. Although the skid box fell only one or two feet before it struck claimant, in light of the weight of the skid box and its contents, as well as the potential harm that it could cause, it cannot be said that the elevation differential was de minimis (see id. at 605).

[*1661] We also reject defendant’s contention that the court erred in determining that it was liable under Labor Law § 241 (6). The section 241 (6) cause of action was based on an alleged violation of 12 NYCRR 23-2.1 (b), pursuant to which “[djebris shall be handled and disposed of by methods that will not endanger any person employed in the area of such disposal or any person lawfully frequenting such area.” We have previously held that 12 NYCRR 23-2.1 (b) is sufficiently specific to support liability under section 241 (6) (see Coleman v ISG Lackawanna Servs., LLC, 74 AD3d 1825 [2010]; Kvandal v Westminster Presbyt. Socy. of Buffalo, 254 AD2d 818 [1998]). It is undisputed that claimant was injured while in the process of removing debris and, contrary to defendant’s contention, it is not necessary for claimant to have been struck by debris for the regulation to apply (see Coleman, 74 AD3d 1825). In any event, the record contains evidence that claimant was in fact struck by debris that fell out of the skid box, in addition to the skid box itself. Present — Fahey, J.R, Peradotto, Lindley, Green and Gorski, JJ.