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Navarro v Joy Constr. Corp.
August 28, 2025
Appellate Division, First Department
Plaintiff was injured when he fell from a partially constructed hanging scaffold as it was being hoisted. The trial court denied the motion of defendants for summary judgment dismissing plaintiff's complaint and denied plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim, while granting plaintiff's motion to amend his bill of particulars to assert violations of additional Industrial Code regulations.
 Labor Law § 240(1) (EDA)
The Appellate Division Reversed the Supreme court decision, holding that plaintiff had established a prima facie entitlement to summary judgment on his Labor Law § 240(1) claim based on his testimony that he did not have an appropriate anchorage point to tie off while still being able to perform his work. In opposition, defendants failed to submit evidence that a roof affixed lifeline would not have prevented plaintiff's fall. Similarly, while defendants contested the necessity of hoisting the suspended scaffold above the tree line to finish its construction, it submitted no credible evidence to support that assertion. Thus, defendants did not rebut plaintiff's showing of entitlement to summary judgment.
Nor was plaintiff's testimony internally inconsistent to raise an issue of his credibility or support a finding that he was the sole proximate cause of the accident. The alleged minor discrepancies in plaintiff's testimony do not affect the material facts concerning defendants' liability under Labor Law § 240(1).
PRACTICE POINT: The sole proximate cause defense requires a defendant to prove plaintiff (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 demonstrate the first or second elements and thus were not entitled to the sole proximate cause defense.
 Labor Law § 241(6) (TJE)
The Court did not address plaintiff’s Labor Law § 241(6) claim in light of its grant of summary judgment on plaintiff’s Labor Law § 240(1) claim.
Araujo v Monadnock Constr., Inc.
August 6, 2025
Appellate Division, Second Department
Plaintiff was working in the basement area of the premises when, per plaintiff’s testimony, the ladder he was standing on wobbled, causing him to fall. At the time of the accident, he was using the subject A-frame or platform-type ladder in a closed position because, again per the plaintiff, the workspace was too confined to use the ladder in an open position. The floor of the workspace was slippery and wet, and the feet of the ladder were in two or three inches of standing water.
The trial court denied plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim, granted defendants’ motion for summary judgment dismissing plaintiff’s Labor Law § 241(6) claim predicated on a violation of 12 NYCRR 23-1.30. The trial court denied defendants’ motion for summary judgment as to plaintiff’s Labor Law § 240(1) and § 200 claims, as well as his 241(6) claim predicated on violations of 12 NYCRR 23-1.7(d) and 23-1.21(b)(3).
Labor Law § 240(1) (EDA)
The Appellate Division affirmed the Supreme Court’s denial of both plaintiff’s and defendants’ motions. It found that the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1). However, in opposition, the defendants raised triable issues of fact as to whether the plaintiff misused the ladder and, if so, whether that misuse was the sole proximate cause of the accident. Because there was an issue of fact, defendants were also precluded from obtaining summary judgment.
PRACTICE POINT: To establish a violation under Labor Law § 240(1) because of a fall from a ladder, there must be evidence that the ladder was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial factor in causing plaintiff’s injuries. Where, for instance, plaintiff falls from a ladder because he or she lost his or her balance, and there is no evidence that the ladder was defective or inadequate, a defendant is not liable. Conversely, where a ladder slides, shifts, tips over, or otherwise collapses for no apparent reason, a violation has been established.
Labor Law § 241(6) (TJE)
The court held that the defendants were entitled to dismissal of the Labor Law § 241(6) claim based on 12 NYCRR 23-1.30 (illumination) because they showed that poor lighting was not a proximate cause of the plaintiff’s accident, and the plaintiff’s argument he might have been able to catch himself if there was better illumination was speculative and insufficient to raise a triable issue of fact.
However, the court properly denied dismissal of the § 241(6) claim to the extent it was based on 12 NYCRR 23-1.7(d) (slipping hazards) and 23-1.21(b)(3) (ladder safety), as the defendants failed to eliminate factual issues regarding whether wet and slippery conditions of the area where the accident occurred or the condition of the ladder itself were proximate causes of plaintiff’s accident.
Labor Law § 200 and Common-Law Negligence (EDA)
The Appellate Division affirmed the Supreme Court finding that the defendants failed to establish, prima facie, that they lacked actual or constructive notice of the allegedly dangerous condition, i.e., the wet and slippery floor where the plaintiff was working, within a reasonable time to remedy it. They also failed to eliminate triable issues of fact as to whether the dangerous condition was a proximate cause of the accident.
Claesen v VRD Contr., Inc.
August 6, 2025
Appellate Division, Second Department
Plaintiff was injured when he and his coworkers were moving a scaffold as part of a construction project in the gymnasium of the defendant Miller Avenue Elementary School and an unsecured spackle bucket fell off the scaffold and hit the plaintiff on his back. Defendant Shoreham-Wading River Central School District retained Defendant, Park East Construction Corp., as the project's construction manager, and Defendant, VRD Contracting, Inc., as the project's general contractor.
On the day before the accident, workers employed by Donninger were using the scaffold to perform spackling work. It is undisputed that the safety railings and toeboards on the scaffold needed to be removed in order to move the scaffold so that the scaffold could pass under a partition wall on the ceiling in the gymnasium.
The trial court denied plaintiff’s motion for summary judgment against defendants VRD, Park East Construction, the school district, and Miller Avenue Elementary School and granted those defendants motion for summary judgment dismissing plaintiff’s Labor Law § 240(1) and 241(6) claims. The trial court also granted the motion for summary judgment of Donniger dismissing plaintiff’s common-law negligence action against it.
Labor Law § 240(1) (EDA)
The Appellate Division affirmed the Supreme Court in denying plaintiff’s motion, but reversed the Supreme Court in its grant of summary judgment to defendants finding that, contrary to the determination of the Supreme Court, the plaintiff established, prima facie, that the bucket that fell on him required securing for the purposes of the undertaking and that the violation of Labor Law § 240(1) was a proximate cause of the accident. In opposition to the plaintiff's prima facie showing, however, the school defendants raised a triable issue of fact as to whether the plaintiff's own actions were the sole proximate cause of the accident by providing evidence that it was the plaintiff's responsibility to check if the scaffold was clear prior to removing the safety devices and moving the scaffold. As triable issues of fact exist as to liability under Labor Law § 240(1), the court properly denied that branch of the plaintiff's motion which was for summary judgment but erred in granting the school defendants' motion for summary judgment dismissing that claim.
PRACTICE POINT: Although comparative fault is not a defense to the strict liability of [Labor Law § 240(1)], where the plaintiff is the sole proximate cause of his or her own injuries, there can be no liability under Labor Law § 240(1). Again, we see how a question of fact prevents both parties from obtaining summary judgment. Sometimes fighting to a draw is a victory.
Labor Law § 241(6) (TJE)
The Second Department found the Supreme Court erred in granting defendants’ motion and dismissing plaintiff’s Labor Law § 241(6) claim as the school defendants failed to eliminate triable issues of fact whether they violated 12 NYCRR 23-5.1(j), 23-5.3(e), 23-5.18(b), and 23-1.15, whether such violations were a proximate cause of the accident, and whether the plaintiff's actions were the sole proximate cause of his injuries.
Labor Law § 200 and Common-Law Negligence (EDA)
The Appellate Division reversed the Supreme Court finding that defendant’s submissions in support of its motion failed to eliminate triable issues of fact with regard to the cause of action alleging common-law negligence insofar as asserted against it. Defendant failed to eliminate triable issues of fact as to whether it created an unreasonable risk of harm that was the proximate cause of the plaintiff's injuries.
Maza v J & N Dev., LLC
August 6, 2025
Appellate Division, Second Department
Plaintiff was injured while performing marble installation. Plaintiff commenced an action alleging violations of Labor Law § 240(1) and 241(6). Plaintiff attempted to serve defendant J&N by delivering the summons and complaint to the address listed with the Secretary of State, which J&N had listed incorrectly. Defendant J&N moved to dismiss judgment entered against it, and to dismiss the complaint based on untimely service. Plaintiff opposed the motion and cross moved seeking an extension of time to serve the summons and complaint on J&N, and the trial court granted its request.
Labor Law § 240(1) (EDA)
The Appellate Division affirmed the Supreme Court finding that it providently exercised its discretion in granting, in the interest of justice, the plaintiff's cross-motion pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon J & N. It further found that Plaintiff promptly moved for an extension of time to serve the summons and complaint after J & N challenged service on the ground that it was untimely, that the statute of limitations had expired by the time the plaintiff filed the cross-motion, and that the length of the delay was not "particularly egregious”. In addition, the plaintiff established that he had potentially meritorious causes of action.
PRACTICE POINT: The Trial Court has discretion to extend time to serve, and the standard on appeal is abuse of discretion, a higher bar. Here, while plaintiff was late in affecting service, he demonstrated his timely attempts to rectify the deficiency.
Batis v 85 Jay St. (Brooklyn), LLC
August 13, 2025
Appellate Division, Second Department
On September 2, 2020, the plaintiff was injured at a construction site on property owned by the defendant 85 Jay. The plaintiff alleged that he was standing on a ladder while installing sheetrock when the ladder suddenly moved, causing him to fall. The defendant New Line was the construction manager for the work performed at the construction site.
The trial court denied plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim against Defendants 85 Jay and New Line.
Labor Law § 240(1) (EDA)
The Appellate Division reversed the Supreme Court finding that plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the Labor Law § 240(1) by submission of a transcript of his deposition testimony, which established that the unsecured ladder moved, causing him to fall. In opposition, the defendants failed to raise a triable issue of fact. The documents submitted by the defendants in opposition to the plaintiff's motion, which relied on a statement the plaintiff allegedly made to his foreman in Spanish, were insufficient to raise a triable issue of fact. The defendants did not submit any deposition testimony or affidavit from the foreman, and they failed to show that the translation of the statement was provided by a competent, objective interpreter whose translation was accurate.
PRACTICE POINT: In order for the Court to consider evidence, it must be in admissible form. Here, the statement was not only unsworn by the person to whom plaintiff allegedly made the statement, but also in Spanish with no sworn translation.
Buzzetta v NYU Hosps. Ctr.
August 13, 2025
Appellate Division, Second Department
In April 2018, the plaintiff was performing demolition work at a hospital owned by the defendants when he allegedly fell from a ladder and was injured. A transcript of his deposition testimony showed he was using a chipping gun to demolish a cement wall when the ladder he was provided with, which was unsecured, twisted and fell, causing him to fall.
The Supreme Court granted plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim.
Labor Law § 240(1) (EDA)
The Appellate Division affirmed the Supreme Court finding that the plaintiff made a prima facie showing by submitting a transcript of his deposition testimony, which showed that he was using a chipping gun to demolish a cement wall when the ladder he was provided with, which was unsecured, twisted and fell, causing him to fall. In opposition, the defendants failed to raise a triable issue of fact. Further, contrary to the defendants' contention, the record evidence did not reveal “differing versions of the accident, one under which defendants would be liable and another under which they would not" (Heras v Ming Seng & Assoc., LLC, 203 AD3d 1146, 1147).
PRACTICE POINT: Even if there are differing versions of plaintiff’s testimony about how the incident happened, if both demonstrate liability for the defendant, there is no question of fact as to the liability of the defendant.
Santos v Leeward Living, LLC
August 13, 2025
Appellate Division, Second Department
In November 2016, while working on scraping and disposing of excess insulation in an attic of a house under construction (hereinafter the subject property), the plaintiff allegedly fell through a hole in the attic floor. The defendant Leeward was the general contractor on the construction project. The subject property was located on land owned by the defendant Breezy Point and was intended to serve as a single-family residence for Breezy Point shareholders.
The trial court granted Plaintiff’s motion for summary judgment on Labor Law § 240(1) and Labor Law § 241(6) predicated on violations of 12 NYCRR 23-1.7(b)(1)(i), 23-1.15, and 23-1.16.
Labor Law § 240(1) (EDA)
The Appellate Division affirmed the Supreme Court and found that the plaintiff established, prima facie, that Breezy Point was an "owner" for purposes of Labor Law §§ 240(1) and 241(6). Breezy Point is a cooperative and, thus, the fee owner of the property on which the accident occurred, and that the Breezy Point shareholders, including the shareholder who contracted for the work being performed on the subject property, owned their homes based on their status as a shareholder in Breezy Point and pursuant to a proprietary lease entered into by them and Breezy Point. Additionally, as testified to by Breezy Point's former general manager, prior to commencing construction work on their properties, shareholders were required to submit applications to Breezy Point's engineering department for review and authorization. Once the job was complete, Breezy Point had to approve the completion of a job. This evidence established a sufficient nexus between the plaintiff and Breezy Point (see DeSabato v 674 Carroll St. Corp., 55 AD3d 656, 658; Pineda v 79 Barrow St. Owners Corp., 297 AD2d 634, 635-636). Moreover, the plaintiff established, prima facie, that Breezy Point was not entitled to the homeowners' exemption under Labor Law §§ 240(1) and 241(6) (see DeSabato v 674 Carroll St. Corp., 55 AD3d at 658). In opposition, the defendants failed to raise a triable issue of fact.
PRACTICE POINT: Under the homeowner’s exemption, owners of one and two-family dwellings who contract for but do not direct or control the work are exempt from Labor Law §§ 240(1) and 241(6). This building had one residential unit but was owned by the collective, not the resident/lessee, and due to the lease, also had commercial use.
Labor Law § 241(6) (TJE)
The Second Department affirmed the Supreme Court and found defendants violated Labor Law § 241(6) by failing to provide a substantial cover or safety railing for the hole in the attic floor in accordance with 12 NYCRR 23-1.7(b)(1)(i) and that this violation was a proximate cause of the accident and affirmed the trial court’s decision to grant summary judgment based on this regulation.
Nevertheless, plaintiff testified he was not provided with any safety devices. 12 NYCRR 23-1.15 and 23-1.16 are inapplicable as they set standards for safety railings and for safety belts and other safety devices which were not provided. As a result, the Second Department reversed the trial court’s grant of summary judgment predicated on violations of these regulations.
Silva v City of New York
August 13, 2025
Appellate Division, Second Department
The plaintiff was a laborer employed by a construction company, which contracted with the defendant City of New York to perform emergency sewer repair work in Brooklyn. The plaintiff was injured at a worksite when he was assisting his foreman in loading a metal plate into the back of a dump truck. The foreman used an excavator equipped with a chain to move the plate from the ground into the back of the dump truck. Once the plate was in the back of the dump truck, the plaintiff climbed up the side of the truck to unhook the chain from the plate. However, almost immediately when he put his right hand on the side of the dump truck to pull himself up, the plate moved and crushed his hand, resulting in his right ring finger being amputated.
The trial court denied plaintiff’s motion for summary judgment on Labor Law § 240(1), and granted defendant City of New York’s motion for summary judgment dismissing plaintiff’s Labor Law § 240(1) and § 200 actions against it.
Labor Law § 240(1) (EDA)
The Appellate Division affirmed the Supreme Court finding that the City established, prima facie, that the plaintiff was provided with adequate securing devices and that his injury was not a result of an elevation-related risk (see Flores v Fort Green Homes, LLC, 227 AD3d at 673). In this regard, the plaintiff conceded that the metal plate was level with his hand when it caused his injury and testified at his deposition that none of the equipment malfunctioned or failed to work properly. In opposition, the plaintiff failed to raise a triable issue of fact.
PRACTICE POINT: Risk shifting is often the focus of Labor Law cases. Though not at issue here, a key to shifting the risk is prevailing on a Labor Law § 200 or Common-Law Negligence summary judgment motion. One way of doing that is so show that the defendant did not supervise the work. "[G]eneral supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability under Labor Law § 200" (Reyes v Sligo Constr. Corp., 214 AD3d 1014, 1017).
Labor Law § 200 and Common-Law Negligence (EDA)
The Appellate Division affirmed the Supreme court finding that the City established, prima facie, through the deposition testimony of one of its employees, that it did not supervise or control the plaintiff's method of work with respect to the metal plate. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the City supervised or controlled that work.
Gomez v Tilden Estates, LLC
August 20, 2025
Appellate Division, Second Department
On November 20, 2018, the plaintiff was injured while working on a construction project at premises owned by the defendant Tilden Estates, LLC. The project was managed by the general contractor, the defendant LG Construction Management, Inc. At the time of the accident, the plaintiff, an employee of a subcontractor, nonparty Veebee Cooling, was carrying an air conditioning compressor unit up a staircase to the roof of the premises with a coworker when he slipped on dust present on the steps, resulting in the plaintiff falling backward and the equipment he had been carrying landing on the plaintiff.
The Supreme Court granted Plaintiff’s motion for summary judgment on his Labor Law § 240(1), 241(6) causes of action, and denied defendant’s cross-motion for summary judgment and dismissed their first affirmative defense.
Labor Law § 240(1) (EDA)
The Appellate Division reversed the Supreme Court, by finding that the plaintiff failed to establish his prima facie case on the Labor Law § 240(1) claim. The plaintiff testified at his deposition that he fell due to slipping on dust on the steps. Thus, the plaintiff failed to eliminate triable issues of fact as to whether his alleged injuries were caused by a "separate hazard . . . unrelated to any elevation risk". The defendants failed to eliminate triable issues of fact as to whether the plaintiff was engaged in elevation-related work that required additional safety devices to be safely performed, and whether the plaintiff's alleged injuries were caused by the absence of such safety devices. Moreover, under the circumstances of this case, the defendants failed to establish, prima facie, that the plaintiff was not entitled to the protections of Labor Law § 240(1) because the accident occurred on a permanent stairway.
PRACTICE POINT: New York's Labor Law § 240(1) generally does not apply to injuries on permanent stairways. The law specifically protects workers from falls from elevation using safety devices, and permanent stairs are considered completed structures, not devices providing elevated protection in the context of the law.
Labor Law § 241(6) (TJE)
The court held that the plaintiff was not entitled to summary judgment under Labor Law § 241(6) because he failed to meet his burden that the Industrial Code provisions he relied on applied to the facts. Specifically, he did not establish that 12 NYCRR 23-1.7(d) (slipping hazards) or 23-1.7(e) (tripping hazards) covered his claim, since he testified that he slipped on dust on stairs. As a result, the trial court should have denied his summary judgment motion based on insufficiency of his motion papers.
Defendants established 22 NYCRR 23-1.7(e) was inapplicable to the facts of this case as dust does not constitute a tripping hazard. However, 22 NYCRR 23-1.7(d) applies to "any other foreign substance which may cause slippery footing" when in contact with a surface where someone walks. As plaintiff testified the stairs were slippery due to dust, the defendants failed to eliminate triable issues of fact as to whether the dust on the steps created a slippery condition within the meaning of 22 NYCRR 23-1.7(d).
Lahoz-Vargas v Bop Ne, LLC
August 20, 2025
Appellate Division, Second Department
Plaintiff commenced was working at a construction site, when an aluminum beam fell from a scaffold frame above him and struck him on the right knee.
The trial court denied plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim.
Labor Law § 240(1) (EDA)
The Appellate Division Affirmed the Supreme Court finding that the plaintiff made a prima facie showing of his entitlement to judgment as a matter of law on the Labor Law § 240(1) claim though submission of a transcript of his deposition testimony and an expert's affidavit (see Passos v Noble Constr. Group, LLC, 169 AD3d 706, 707-708). However, in opposition, the defendants raised triable issues of fact through affidavits calling into question the plaintiff's credibility as to how the incident occurred (see Alvarez v 2455 8 Ave, LLC, 202 AD3d 724, 725).
PRACTICE POINT: One way to create an issue of fact is to attack the credibility of the Plaintiff’s testimony, however this will only be germane to the question of how the incident occurred and the applicability of the Labor Law. This is however specific to the Second Department and is not followed in the Fourth for instance. Specifically the court held “However, in opposition, the defendants raised triable issues of fact through affidavits calling into question the plaintiff's [*2]credibility as to how the incident occurred (see Alvarez v 2455 8 Ave, LLC, 202 AD3d 724, 725). Accordingly, the Supreme Court properly denied the plaintiff's motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1).”
Rivera v 26 W. 56, LLC
August 20, 2025
Appellate Division, Second Department
During the demolition phase of a building renovation project, the plaintiff was employed by Alba Services, Inc., to remove demolition debris and dispose of it. While performing this work, the plaintiff was injured when an HVAC duct that was being removed from a ceiling fell on her.
The trial court denied defendants’ cross-motion for summary judgment dismissing plaintiff’s Labor Law § 240(1) claim.
Labor Law § 240(1) (EDA)
The Appellate Division affirmed the Supreme Court finding that the defendants' submissions, including their expert's conclusory affidavit, failed to eliminate all triable issues of fact as to whether the HVAC duct being removed from the ceiling required securing for the purposes of the undertaking and thus fell due to the "absence or inadequacy of an enumerated safety device" (Fabrizi v 1095 Ave. of the Ams., L.L.C., 22 NY3d 658, 663. Further, the defendants failed to demonstrate, prima facie, that the plaintiff chose not to use an available safety device and was therefore the sole proximate cause of her injuries. An instruction not to be in a particular area "is not a 'safety device' in the sense that plaintiff's failure to comply with the instruction is equivalent to refusing to use available, safe and appropriate equipment" (Gordon v Eastern Ry. Supply, 82 NY2d at 563; see Zong Wang Yang v City of New York, 207 AD3d at 795.
PRACTICE POINT: Merely instructing a Plaintiff not to enter an area is comparative negligence at best. As we all are aware, comparative negligence is not a defense or considered in a Labor Law § 240(1) action.
Impagliazzo v Judlau Contr., Inc.
August 27, 2025
Appellate Division, Second Department
On October 19, 2018, the plaintiff sustained injuries while working at an MTA construction project for the rehabilitation of a station in Manhattan. Pursuant to a contract with the MTA, the defendant Judlau was a general contractor for certain portions of the project, including the rehabilitation of stairway H.
Plaintiff, a foreman for Judlau's plumbing subcontractor, fell while traversing a rebar mat dotted with protruding Nelson studs while being led to stairway H by Judlau's superintendent. According to Judlau's superintendent, the rebar mat had not been laid by Judlau and was located in an area outside the scope of Judlau's work on the project, but traversing the rebar mat was the only way to access stairway H.
The trial court denied defendants’ cross-motion for summary judgment seeking dismissal of Plaintiff’s Labor Law § 200 and common-law negligence against them.
Labor Law § 200 and Common-Law Negligence (EDA)
The Appellate Division affirmed the Supreme Court finding that defendants failed to eliminate all triable issues of fact as to whether the rebar mat dotted with protruding Nelson studs constituted a dangerous condition, whether the defendants had actual or constructive notice of the condition, and whether traversing a rebar mat of this type was an inherent risk in the plaintiff's work.
New York Industrial Code Regulations (EDA)
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