New York Law Journal articles this year1 duel over proposed legislation (A.3104-2013,2 S.0111-2013) which would give CPLR 14-A, the comparative culpability statute, applicability of some extent in actions based on Section 240 of the Labor Law, the “Scaffold Law.” While the articles are interesting, reality-informed skepticism compels thought that any such bill will not reach the governor’s desk. But, that does not foreclose a different approach. The thought is that CPLR 14-A already fully applies in Section 240 matters, and further legislation is not necessary. Rather, what is needed is for the Court of Appeals to look again and overrule holdings which denied applicability (see, e.g., Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 521-22 (1985); Bland v. Manocherian, 66 N.Y.2d 452, 461 (1985); Stolt v. General Foods, 81 N.Y. 918, 920 (1993); Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 562-63 (1993)).
With extensive use of citations, the argument by Brian Shoot in one such column cryptically asserts that other states have laws similar to or “based upon the predecessor of Labor Law Section 240.” Decoded—a few other states have laws which are like Section 240 before it was radically amended in 1969 by L.1969 Ch. 1108; but no other state has a law similar to Section 240 as it was transformed in 1969, and essentially reads today.3 Interestingly, eschewed is any reference to how such other states interrelate their Section 240 predecessor—like statutes with their comparative culpability statutes or common law rules, if any. This even though the point of the Shoot writings is that CPLR 14-A should not in any way be amended to apply in Section 240-based matters.
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