The Court of Appeals’ 4 to 3 ruling in O’Brien v. Port Auth. of New York and New Jersey, 29 N.Y.3d 27 (2017) precipitated two immediate and almost polar opposite reactions from the bar. Two defense advocates soon after penned an article stating that O’Brien “increases the ease with which summary judgment may be defeated” where a plaintiff seeks summary judgment under authority of Labor Law §240. Andrea M. Alonso and Kevin G. Faley, “The Elevation of the Expert,” NYLJ May 25, 2017. In their view, O’Brien meant that “[w]hen defendants can offer expert affidavits, the adequacy of a scaffold or ladder will now almost always be a question of fact.”

That column was answered by one in which four prominent members of the plaintiffs’ bar declared that O’Brien “reaffirmed the strong protections afforded workers under the statute.” John Zaremba et. al., “O’Brien Reaffirms Decades of Law Protecting Workers,” NYLJ, June 2, 2017. Noting that “some” had asserted that “O’Brien stands for the proposition that where experts disagree on the adequacy of a safety device, the expert conflict creates a fact question,” the authors of the answering column asserted, “Nothing could be more inaccurate.”

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