        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1369
CA 11-00457
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, GREEN, AND GORSKI, JJ.


JEFFREY DIPALMA, CLAIMANT-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

STATE OF NEW YORK, DEFENDANT-APPELLANT.
(CLAIM NO. 111910.)


RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA, LLC, BUFFALO (R. ANTHONY
RUPP, III, OF COUNSEL), FOR DEFENDANT-APPELLANT.

CANTOR, LUKASIK, DOLCE & PANEPINTO, P.C., BUFFALO (STEPHEN C. HALPERN
OF COUNSEL), FOR CLAIMANT-RESPONDENT.


     Appeal from a judgment of the Court of Claims (Jeremiah J.
Moriarty, III, J.), dated November 26, 2010 in a personal injury
action. The judgment determined defendant to be 100% liable pursuant
to Labor Law § 240 (1) and § 241 (6).

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     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 portion 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;
see Accardi v City of New York, 121 AD2d 489, 490-491). 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,
lv denied 3 NY3d 608; Goncalves v State of New York, 1 AD3d 914; see
generally Northern Westchester Professional Park Assoc. v Town of
                                 -2-                          1369
                                                         CA 11-00457

Bedford, 60 NY2d 492, 499). 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 East 92nd Hous.
Dev. Fund Corp., 18 NY3d 1, 4). 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.). Moreover, “the single decisive question is whether plaintiff’s
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), 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).

     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 “[d]ebris 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; Kvandal v Westminster Presbyt.
Socy. of Buffalo, 254 AD2d 818). 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.




Entered:   December 30, 2011                    Frances E. Cafarell
                                                Clerk of the Court
