BOWMAN v. BEACH CONCERTS INC (2008)

Order, Supreme Court, New York County (Richard F. Braun, J.), entered November 6, 2006, which denied plaintiff's motion to vacate an order of dismissal, unanimously modified, on the law and the facts, to reinstate the Labor Law § 200 and common-law negligence claims, and otherwise affirmed, without costs.

Plaintiff demonstrated a reasonable excuse for his default, i.e., law office failure (see ICBC Broadcast Holdings-NY, Inc. v. Prime Time Adv., Inc., 26 A.D.3d 239, 240, 810 N.Y.S.2d 40 [2006];  Mediavilla v. Gurman, 272 A.D.2d 146, 148, 707 N.Y.S.2d 432 [2000] ), and meritorious Labor Law § 200 and common-law negligence claims, based on evidence that the operation of a forklift by an untrained, self-designated coworker created an unsafe workplace (see Griffin v. New York City Tr. Auth., 16 A.D.3d 202, 791 N.Y.S.2d 98 [2005] ).   As to his Labor Law § 241(6) claim, however, plaintiff failed to demonstrate that his injury occurred in the context of construction, excavation or demolition work (see Nagel v. D & R Realty Corp., 99 N.Y.2d 98, 103, 752 N.Y.S.2d 581, 782 N.E.2d 558 [2002] ).