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Brunet v JP Morgan Chase Bank N.A.
May 04, 2023
Appellate Division, First Department
Plaintiff allegedly slipped and fell on ice on the public sidewalk adjacent to a Chase Bank building, while performing construction work. The trial court granted Chase’s motion for summary judgment dismissing the complaint and granted DBSI's unopposed motion for summary judgment also seeking dismissal of the complaint against it.
 Labor Law § 241(6) (TPW)
The First Department affirmed the trial court’s decision to dismiss the Labor Law § 241(6) claim, as the public sidewalk where plaintiff fell was not a passageway or walkway under Industrial Code (12 NYCRR) §§ 23-1.7 (d) or 23-1.7 (e)(2), nor did the sidewalk constitute a working area under § 23-1.7 (e)(2) since all work was performed in the interior of the premises.
 Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed dismissal of the Labor Law § 200 and common-law negligence claims, holding that Chase demonstrated that it owed no duty to maintain the public sidewalk. Further, Chase established that it did not create the hazardous condition as none of the work being performed was to the exterior of the bank, and it made no special use of the sidewalk during construction.
Sanchez v MC 19 E. Houston LLC
May 04, 2023
Appellate Division, First Department
Plaintiff was carrying eight rolls of wire up an unsecured, temporary wooden ladder when the ladder suddenly shifted to the right and slid down, causing him to slip and fall to the ground. The trial court granted plaintiff's motion for summary judgment for partial liability under Labor Law § 240(1).
 Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s decision as plaintiff established his entitlement to summary judgment with his deposition testimony. In opposition, the Court held that defendants failed to raise a triable issue of fact. Although defendants submitted an unsworn accident report prepared by the site-safety manager which was purportedly based on a conversation with plaintiff, the report noted that plaintiff was on the ladder when he slipped on one of the rungs, and therefore did not contradict plaintiff’s testimony that he slipped and fell because the ladder suddenly moved. While plaintiff admitted to signing a document before leaving work, he stated that he did not read or understand it because it was in English. Defendant also presented no evidence that the site safety manager spoke the same language as plaintiff or used an interpreter when speaking with plaintiff.
As to the photographs of the ladders submitted in opposition to plaintiff’s motion, the Court held that those photographs were not authenticated by any witness. Finally, the fact that plaintiff was carrying rolls of wire in his hands while on the ladder establishes, at most, comparative negligence, which is not a defense to a Labor Law § 240(1) claim.
PRACTICE POINT: When opposing a plaintiff’s motion for summary judgment by arguing that there is evidence contradicting plaintiff’s version of how the incident occurred, your evidence must not only completely contradict plaintiff’s testimony, but must also put forth a version of the accident for which no liability attaches under Labor Law § 240(1). Here, neither the unsworn accident report nor an email sent to plaintiff’s employer from the project manager completely contradicted plaintiff’s account, which was consistent from the time of the accident onward. Moreover, any evidence provided in support of a motion must be in admissible form to be considered by the court.
Cantre v BLDG Oceanside LLC
May 09, 2023
Appellate Division, First Department
Plaintiff placed about 10 pipes, measuring up to 10 feet long and weighing about 10 to 50 pounds each, into a “debris cart” or “mini-dumpster” for the purpose of transporting them to an elevator. He testified that, while facing away from the cart and bending down to pick up pipes from the floor, he was struck in the back of his ear by a pipe, rendering him unconscious. He did not see the accident happening and did not testify as to which part of the pipe struck him. He admittedly chose to place all of the pipes in the cart at the same angle, and the pipes stuck out of the cart by about five feet. The trial court denied plaintiff's motion for partial summary judgment on liability under Labor Law § 240(1).
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s decision because, even if plaintiff met his initial burden on his motion, defendants raised triable issues of fact as to whether there was an elevation-related risk and whether plaintiff was the sole proximate cause of his incident. The general contractor’s superintendent and a construction site safety expert’s affidavit opined that his method of placing the pipes in the cart created an obvious risk that the cart would tip over, and plaintiff testified that he had transported the pipes one at a time, by hand, earlier the same day. There was also evidence that plaintiff was not authorized to place pipes into the cart. Considering those facts and the conflict accounts as to whether he was instructed to do so by the superintendent, the Court found issues of fact as to whether plaintiff’s own conduct was the sole proximate cause of his injuries.
The Court also found issues of fact as to 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 [2009]).
PRACTICE POINT: Defendant successfully defeated plaintiff’s summary judgment motion by demonstrating questions of fact regarding how the incident occurred and whether plaintiff improperly made the decision to transport all the pipes at once after being instructed by the superintendent not to place the pipes into the cart, thereby leaving open the question of whether plaintiff’s own conduct was the sole proximate cause of his injuries.
Leonard v City of New York
May 11, 2023
Appellate Division, First Department
Plaintiff was injured while working for nonparty DeBoe Construction on a project to reconstruct sewers and water mains pursuant to a contract with the City of New York. He was standing alongside a trench when the trench wall allegedly collapsed. A heavy steel beam that had been supporting the trench walls fell four to five feet onto a worker's leg, causing the worker to cry out. Without hesitating, plaintiff climbed into the trench to aid his coworker. As plaintiff attempted to lift the beam off of his coworker, plaintiff "felt a big pop" in his lower back and "kind of blacked out" from the pain. The trial court granted the City of New York and New York City Transit Authority's summary judgment motion dismissing the Labor Law § 241(6) claim against them.
Labor Law § 241(6) (TPW)
The First Department reversed the trial court, determining, as a matter of first impression in that Department, that the “danger invites rescue” doctrine applies to a personal injury under Labor Law § 241(6) and found a question of fact as to whether plaintiff’s rescue attempt was reasonable under the circumstances. It was undisputed that Industrial Code §§ 23-4.2(a), 4.4(a), (b), (c) and (f), all of which govern the configuration and shoring of trenches and other excavations, are sufficiently specific and were violated by defendants.
Although defendants persuaded the trial court to reject plaintiff’s claim because plaintiff himself was not injured by any violation of the above Industrial Code sections regarding shoring of trenches, the Court noted that Wagner v International Ry. Co., 232 NY 176 (1921), and the many cases that followed it, do not require that the rescuer be subjected to the same harm that necessitated a rescue. Referring to the foundational decisions of Judge Cardozo, the First Department reiterated the doctrine as one in which a tortfeasor can be held to owe a duty of care to a rescuer when coming to the aid of an individual wronged by the tortfeasor. As set forth by Judge Cardozo: "Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer."
Traditionally, however, the doctrine was one of common-law. The underlying case raised the question of whether the doctrine also applies in the context of Labor Law § 241(6) claims. Because plaintiff’s coworker allegedly was imperiled by a violation of one or more of the cited Industrial Code sections, the Court held that the rescue doctrine does not require plaintiff to have also been injured in the same manner for a § 241(6) claim to survive. This brought the First Department in accord with both the Second and Fourth Departments which also have applied the rescue doctrine to Labor Law § 241(6) claims. Although the court found that the rescue doctrine applies to claims under Labor Law § 241(6), it held that the finder of fact must determine whether plaintiff's rescue attempt in any given case was a "reasonable course of conduct at the time." As such, the underlying matter was remanded to the trial court to determine whether this plaintiff's rescue attempt was a reasonable course of conduct at the time.
Rivera v Suydam 379 LLC
May 11, 2023
Appellate Division, First Department
Plaintiff was injured while performing work involving the replacement of the wooden beams of a roof. He allegedly fell from an unsecure 12-foot A-frame ladder when the ladder shifted as he attempted to place a wooden beam that he was carrying onto the platform of the scaffold that was used to access the roof area. Plaintiff testified that he was required to stand on the top rung of the ladder because the ladder was too short to enable him to reach the platform, which was 16 feet high. The trial court denied plaintiff’s motion for partial summary judgment as to liability under Labor Law §§ 240(1) and 241(6) against Suydam and Blueberry Builders.
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s decision. Although plaintiff’s proof showed that the ladder did not provide adequate protection for plaintiff’s work, the Court held that defendants’ sole proximate cause argument raised a triable issue of fact. The site superintendent instructed plaintiff and his coworkers to use the scaffold’s built-in ladder instead of the A-frame ladder to ascend the scaffold, and to tie off and use the fall protection equipment provided on the morning of the incident. Such testimony raised questions of fact as to whether adequate safety devices were available for plaintiff’s use and whether plaintiff knew he was expected to use them but chose not to for no good reason. The superintendent’s testimony that he directed plaintiff to tie off the ladder on the morning of the incident also raised a question of fact as to whether plaintiff disregarded those instructions.
PRACTICE POINT: This is the classic example of a Labor Law § 240(1) fall from a ladder case and the proof required by a defendant to defeat a plaintiff’s motion based on the sole proximate cause defense.
Labor Law § 241(6) (TPW)
The First Department unanimously affirmed the trial court’s denial of plaintiff’s motion for summary judgment as to liability on his Labor Law § 241(6) claim. The First Department found that Industrial Code (12 NYCRR) § 23-1.21(b)(4)(ii), which requires that ladder footings be firm, was inapplicable as nothing in the record indicated that the ladder had problems with its feet or that the ladder’s footing rested on a slippery or unsafe surface. However, the Court found triable issues of fact as to whether § 23-1.21(b)(4)(iv), which requires the securing of “leaning ladder[s],” was violated. Plaintiff’s deposition testimony was ambiguous and contradictory as to whether the ladder was closed and leaning against the scaffold, or opened and locked, at the time of the accident.
Ruiz v Phipps Houses
May 16, 2023
Appellate Division, First Department
Plaintiff was injured when a heavy scaffolding pole, which was 10 to 14 feet tall and 9 inches in diameter, weighing 80 to 100 pounds, allegedly fell on his head and shoulder while working at a construction site. According to the deposition testimony, one of plaintiff's coworkers was trying to hold the pole upright but could not do so because it was not secured. The trial court granted plaintiff's motion for summary judgment as to liability under Labor Law § 240(1).
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s decision, as the evidence shows that his injuries were caused by defendant’s failure to secure the scaffolding pole to keep it from falling and flowed directly from the application of the force of gravity to the pole. The Court rejected the defendant’s argument that the pole fell from a distance that was de minimis, because it was made of iron and was able to generate a large amount of force during its descent.
PRACTICE POINT: The Court of Appeals in Runner and Wilinski held that an elevation differential cannot be considered de minimis when the weight of the allegedly unsecured object is capable of generating an extreme amount of force, although it only traveled a short distance.
Cabral v Rockefeller Univ.
May 18, 2023
Appellate Division, First Department
Turner and Rockefeller were found liable pursuant to Labor Law § 241(6) in connection with a summary judgment motion made by plaintiff. The trial court granted the motion of Northern to the extent of dismissing the common-law indemnity and contribution claims of Rockefeller and Turner in their third-party complaint against Northern and denied the motion seeking dismissal of Turner and Rockefeller's third-party claims against Northern for contractual indemnity and breach of contract for failing to procure insurance.
 Indemnity Issues in Labor Law (BFM)
The First Department held that Turner and Rockefeller, which had been found liable pursuant to Labor Law § 241(6) in connection with a summary judgment motion made by plaintiff, adequately pleaded a claim in their amended second third-party complaint for common-law indemnity against Northern. However, the Court determined that the claim for contribution had been correctly dismissed, noting that where one is held liable solely on account of the negligence of another, indemnification, not contribution, principles apply to shift the entire liability to the one who was negligent.
In its cross-appeal, Northern argued that the trial court should have dismissed the claim in the amended second third-party complaint for contractual indemnity and breach of contract for failure to procure insurance. As there was no change in those claims from what was asserted in the original second third-party complaint and the trial court already denied Northern's motion to dismiss those claims, Northern's motion was an untimely motion to reargue. Accordingly, the Court dismissed Northern’s cross-appeal.
Bonkoski v Condos Bros. Constr. Corp.
May 3, 2023
Appellate Division, Second Department
Plaintiff, a plumbing foreman employed by nonparty Preferred Plumbing, allegedly was injured when he fell into an obscured or partially covered manhole at a construction project, on premises owned by the BAPS defendants. The BAPS defendants retained Sachi as the general contractor, who retained Preferred Plumbing to perform plumbing work on the project. Preferred Plumbing retained Condos to perform drainage work, including installing manholes.
The Supreme Court: (1) granted Condos’s motion for summary judgment dismissing the Labor Law § 240(1) claim, and the Labor Law § 241(6) claim predicated on an alleged violation of 12 NYCRR § 23-1.7(b)(1)(i); (2) denied plaintiff's motion for summary judgment on the Labor Law §§ 240(1), 200, and common-law negligence claims, and the § 241(6) claim predicated on § 23-1.7(b)(1)(i) as asserted against Sachi and the BAPS defendants; and (3) granted Sachi and the BAPS defendants’ motion for summary judgment dismissing the 240(1), 200 and common-law negligence claims, and the § 241(6) claim to the extent predicated on an alleged violation of § 23-1.7(b)(1)(i).
Labor Law § 240(1) (MAS)
The First Department affirmed the trial court’s decision to grant summary judgment to Condos, but on the grounds that Condos established it was not an agent of either Sachi or the BAPS defendants. Condos’ evidence shows that its supervision responsibilities on the worksite were limited to those times when its work was in progress, and it had left the worksite several weeks prior to plaintiff’s incident after completing its work to the satisfaction of both Sachi and an inspector from the Town.
The Court also affirmed summary judgment to Sachi and the BAPS defendants since they established that plaintiff’s injuries, though the result of a fall, did not result from an elevation-relation hazard encompassed by Labor Law § 240(1). For the same reasons, the Court also affirmed the denial of plaintiff’s motion under that same claim insofar as assert against Sachi and the BAPS defendants.
PRACTICE POINT: The express terms of Labor Law §§ 240(1) and 241(6) provide that “the nondelegable duties imposed by those statutes apply only to contractors and owners and their agents.” To hold a defendant liable as an agent of the general contractor or owner for violations of those statutes, there must be a showing that it had the authority to supervise and control the work that brought about the injury. Here, Condos was not an agent of the general contractor or owner.
Additionally, not every gravity-related injury is covered under Labor Law § 240(1). Although an injured worker’s injuries resulted from a fall, they are not covered under the statute if the injuries did not arise in the context of the “special hazards” against which the statute is designed to protect, namely, the exceptionally dangerous conditions posed by elevation differentials at work sites. In this case, plaintiff’s incident in this case did not result from such an elevation-related hazard under the statute.
Labor Law § 241(6) (TPW)
The Second Department modified the trial court’s decision to the extent it affirmed the finding that Condos established it was not an agent of either Sachi or the BAPS defendants. For its part, plaintiff established that 12 NYCRR § 23-1.7(b)(1)(i) was violated with evidence that the manhole had a hazardous opening large enough for a worker to fall through and lacked a covering sufficient to prevent a worker from doing so. Contrary to the contentions of Sachi and the BAPS defendants, the Court held that their evidence that a concrete cover had been placed over the manhole at some point prior to plaintiff's accident failed to raise a triable issue fact as to whether the covering was sufficiently substantial, as there is no dispute that the covering was either missing or broken at the time of plaintiff's accident.
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department reversed the trial court’s decision granting defendants summary judgment on these claims. It found that defendants failed to establish that they lacked actual or constructive notice, as the evidence they submitted did not eliminate triable issues of fact as to whether the allegedly dangerous condition of the manhole should have been discovered upon a reasonable inspection. For the same reason, the Second Department held that plaintiff’s motion for summary judgment, as to Labor Law § 200 and common-law negligence, properly was denied.
Lochan v H & H Sons Home Improvement, Inc.
May 3, 2023
Appellate Division, Second Department
Plaintiff allegedly fell from an unsecured ladder while he was painting in a building owned by the LLC and managed by Haghanegi. Plaintiff claims that he was an employee of a maintenance company owned by Haghanegi, which was retained by the LLC to renovate its building. According to plaintiff, on the day at issue, a coworker was holding an extension ladder for plaintiff so he could paint while standing on the ladder, but the coworker was called away, and the ladder slid, causing him to fall and sustain injuries.
The trial court granted plaintiff's motion for summary judgment on his Labor Law § 240(1) claim against the LLC, searched the record and awarded summary judgment to plaintiff on the Labor Law § 240(1) claim against Haghanegi, and denied the LLC’s and Haghanegis’ cross-motions for summary judgment dismissing the § 240(1) claim.
Labor Law § 240(1) (MAS)
The Second Department reversed the trial court as it should not have searched the record and awarded plaintiff summary judgment on his Labor Law § 240(1) claim against Haghanegi, as the parties’ submissions failed to establish plaintiff’s entitlement to this relief as a matter of law. However, the Court affirmed summary judgment to plaintiff as against the LLC because the evidence showed that plaintiff was injured when an unsecured ladder on which he was standing slid, causing him to fall.
The Court also affirmed the trial court’s denial of summary judgment to defendants because they failed to establish that plaintiff was the sole proximate cause of the incident. Defendants submitted no evidence to establish that plaintiff misused an otherwise adequate safety device or chose to use an inadequate safety device when proper devices were available. Defendants also failed to establish that plaintiff deliberately refused to use safety devices that were provided by the employer.
PRACTICE POINT: To be entitled to the sole proximate defense, a defendant must demonstrate that the injured worker: (1) had adequate safety devices available; (2) knew both that the safety devices were available and that they were expected to use them; (3) chose for no good reason not to do so; and (4) would not have been injured had they not made that choice. Here, defendants could not prove any of the four required elements. Remember, it only takes one missing element to defeat the sole proximate cause defense.
Manfredo v Marvin & Mario Constr., Inc.
May 3, 2023
Appellate Division, Second Department
Plaintiff allegedly was injured while working on a construction project on property owned by defendants. The trial court granted defendants’ motion for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims.
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s decision to dismiss the Labor Law §§ 240(1) and 241(6) claims because defendants’ proof was sufficient to establish that their use of the property was entirely for residential purposes and that the construction work being performed by plaintiff at the time of his incident was directly related to the residential use of the property.
PRACTICE POINT: The homeowners’ exemption to liability under Labor Law §§ 240(1) and 241(6) is available to owners of one and two-family dwellings who contract for but who do not direct or control the injury-producing work, and who demonstrate that the injury-producing work directly relates to the residential use of the home, even if the work also serves a commercial purpose. Here, defendants were entitled to the exemption since the construction work being performed by plaintiff directly related to the residential use of the property.
I.P. v Bonilla
May 10, 2023
Appellate Division, Second Department
Plaintiff, a roofing assistant employed by nonparty Bentzys, was working on a construction project at a building when he fell from a ladder while repairing a hole in the roof of a neighboring garage owned by defendant, which was not part of the construction site where plaintiff was employed. The trial court granted defendant’s motion for summary judgment dismissing the complaint alleging violations of Labor Law §§ 240(1), 241(6), 200 and common-law negligence.
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s decision to dismiss the Labor Law §§ 240(1) and 241(6) claims because defendant established that he never requested or authorized anyone to perform repairs to his garage during the period in question. Moreover, defendant never heard of plaintiff’s employer and did not know plaintiff. In opposition, the Court held that plaintiff failed to raise a triable issue of fact.
PRACTICE POINT: To invoke the protections afforded by Labor Law §§ 240(1) and 241(6) and to come within the special class for whose benefit liability is imposed on contractors, owners and their agents, a plaintiff must demonstrate that he or she was both permitted or suffered to work on a building or structure and that he or she was hired by someone, be it owner, contractor or their agent. Here, defendant demonstrated that neither plaintiff nor his employer had been retained to perform work on his property.
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed dismissal of these claims for the same reasons discussed above.
Santiago v Hanley Group, Inc.
May 10, 2023
Appellate Division, Second Department
Plaintiff allegedly was injured when he fell from the roof of a single-family house while performing construction work. The general contractor was defendant, Hanley Group. The trial court granted plaintiffs’ motion, among other things, for summary judgment on the Labor Law § 240(1) claim against defendant.
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s decision to grant plaintiff summary judgment as defendant failed to raise a triable issue of fact as to whether it complied with its statutory duty to make adequate safety devices available for work at elevation. The Court further held that defendant failed to raise a triable issue of fact as to whether plaintiff’s conduct was the sole proximate cause of his injuries or as to whether he was a recalcitrant worker, because defendant did not present evidence showing that plaintiff was aware of the location of proper safety devices or that he was expected to use them.
PRACTICE POINT: Labor Law § 240(1) requires contractors to provide appropriate safety devices for the protection of workers engaging in labor that involves elevation-related risks. A defendant may defeat a plaintiff’s motion for summary judgment where it can raise a triable issue of fact as to whether plaintiff’s conduct was the sole proximate cause of his injuries by demonstrating that the worker: (1) had adequate safety devices available; (2) knew both that the safety devices were available and that they were expected to use them; (3) chose for no good reason not to do so; and (4) would not have been injured had they not made that choice. Here, defendant could not defeat plaintiff’s motion based on the sole proximate cause defense, since it failed to establish the first and second elements.
Gonzalez v Madison Sixty, LLC
May 31, 2023
Appellate Division, Second Department
Plaintiff allegedly was injured while working at a construction project at premises owned by defendant. On the date of the accident, plaintiff and his coworkers were attempting to transport a compressor, which weighed 300 pounds, from a sidewalk to the street. To reach the street, the compressor had to cross a trench two feet deep, which the workers had covered with a ramp made of plywood. As the workers moved the compressor across the ramp, the ramp broke, causing the compressor to fall into the trench and the handle of the compressor to strike plaintiff's foot. The trial court denied plaintiffs' motion for summary judgment on the Labor Law § 240(1) claim.
Labor Law § 240(1) (MAS)
The Second Department reversed the trial court and granted plaintiff’s motion as his evidence established that his incident was proximately caused by defendant’s failure to provide appropriate safety devices to protect against gravity-related hazards posed by maneuvering the compressor over the trench. The Court also held that plaintiff demonstrated his incident was the result of an elevation differential within the scope of Labor Law § 240(1). Although the compressor only fell a short distance, given its weight and the amount of force it was capable of generating, the Court found its height differential was not de minimis.
In opposition, the Court determined that defendant failed to raise a triable issue of fact as to the absence of a statutory violation or as to whether plaintiff’s own conduct was the sole proximate cause of his incident.
PRACTICE POINT: The only fact that matters in a falling object case post-Runner is the weight of the object and its ability to cause injury; i.e., “whether the harm flows directly from the application of the force of gravity to the object.” Here, a heavy compressor being moved over a plywood ramp, which broke, causing the compressor to fall into the trench and injure a worker, is a valid Labor Law § 240(1) case.
Barnhardt v Richard G. Rosetti, LLC
May 11, 2023
Appellate Division, Third Department
Plaintiff, a self-employed contractor, was hired by John Harrell, the owner of Next Level, to install surveillance cameras in the ceiling of an office that Harrell rented in a commercial garage owned by Richard G. Rosetti, LLC. At his deposition, plaintiff recalled that, on the day of his incident, he brought his own 20-foot extension ladder to the job and started working by placing the ladder 2½ to 3 feet out against the exterior office wall and adjusted the height to 10 feet. Plaintiff examined Harrell’s office and ascended and descended the ladder seven to nine times to locate preexisting electrical lines and did not recall having any concerns about the safety of the ladder.
The ladder had rubber feet on the bottom, which plaintiff agreed provided sufficient grip or traction on the concrete floor of the office. Immediately preceding his fall, plaintiff stepped onto the ladder to descend from the roof of the office, putting his left foot on first and both hands on the top of the ladder. Upon placing his second foot on the ladder rung, the bottom of the ladder “started to give away” and “the feet started sliding out” and then the ladder fell “straight down.” Plaintiff’s fall was unwitnessed.
The trial court denied plaintiff's motion for partial summary judgment on liability under Labor Law § 240(1) on the basis that defendants had a nondelegable duty as the property owner and tenant to ensure plaintiff’s safety, and submitted an architect affidavit opining that defendants should have secured the base and top of the ladder or, alternatively, had a person hold the ladder and that such measures would have prevented the ladder “from ‘kicking right’, slipping, or becoming unstable while in use.”
Labor Law § 240(1) (MAS)
The Third Department reversed the trial court and granted plaintiff’s motion as an unexplained collapse of the ladder that plaintiff was using to reach the elevated work area entitled him to the “presumption that the ladder … was not good enough to afford proper protection.” In opposition, the Court held that defendants failed to meet their burden to present a triable issue of fact since no one was holding the ladder when it suddenly shifted or wobbled, and no safety devices were provided to prevent the ladder from slipping or plaintiff from falling if it did. Testimony concerning the existence of a rope somewhere in the warehouse was insufficient to establish that such equipment was “available, visible and in place at the worksite.”
The Court also rejected defendants’ claim that plaintiff’s vertigo caused his fall as pure speculation, along with the claim that plaintiff fell prior to mounting the ladder, which merely suggest some comparative fault, which is insufficient to create an issue of fact to avoid summary judgment. With respect to defendant’s expert proof that the Industrial Code did not require the use of a rope to secure the ladder in light of the height at which the ladder was extended, the Court determined that whether a rope was necessary under the relevant regulations is not dispositive under Labor Law § 240(1), as the height at which plaintiff was working, regardless of the length of the ladder, created an elevation risk under the statute. The Court further rejected the explanation defendants’ expert provides for plaintiff’s fall.
PRACTICE POINT: An unexplained collapse of a ladder the injured worker was using to reach an elevated work area results in the presumption that the ladder failed to provide proper protection, thereby shifting the burden to defendant to raise a triable issue of fact that there was no statutory violation and that plaintiff’s own act or omissions were the sole cause of the accident. Here, defendants failed to raise an issue of fact as to whether plaintiff’s conduct was the sole proximate cause of his fall and injuries.
 New York Industrial Code Regulations (EDA)
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Note from David R. Adams:
