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Hempstead v Hammer & Steel, Inc.
January 2, 2025
Appellate Division, First Department
Plaintiff was injured when a cement mixer, weighing 600+ pounds, allegedly fell and crushed him. STS manufactured the mixer and H&S distributed it. The trial court denied the motions of 9501 Ditmars Boulevard and Enterprise Holdings, ICS Builders and Peterson for summary judgment dismissing the Labor Law § 240(1) claim.
 Labor Law § 240(1) (MAS)
The First Department affirmed the trial court’s denial of the motion. While the elevation from which the mixer fell to the location where it encountered plaintiff may have been a matter of feet, the mixer was still capable of generating an amount of force significant enough to crush him. Moreover, the mixer needed to be secured for the purposes of the undertaking – indeed, the very purpose of the undertaking was to secure it for transport.
PRACTICE POINT: Remember that the Court of Appeals declared in Outar v City of New York that “falling object” liability under § 240(1) is no longer limited to cases in which falling objects are in the process of being hoisted or secured and includes objects that required securing for the purposes of the undertaking. Here, the Court found that the mixer needed to be secured, and plaintiff’s injury-producing work involved securing it for transport.
Perez v 1334 York, LLC
January 7, 2025
Appellate Division, First Department
Plaintiff fell from a mobile scaffold while taping drywall at a construction site situated on the fifth floor of a large office building. Plaintiff allegedly used a scaffold which lacked guardrails on its long sides only after searching for guardrails and asking his foreman, who told him to proceed with his work. The trial court denied plaintiff’s motion for summary judgment under Labor Law §§ 240(1) and 241(6).
Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court’s decision and granted plaintiff’s motion as plaintiff’s testimony that he was provided a scaffold lacking guardrails on its long sides was undisputed. Although defendants indicated that workers were generally aware that railings were available throughout the site, defendants failed to show that their precise locations were made known to the workers. Thus, the Court found that the affidavits of the three foremen and coworker are conclusory as the record failed to specify the location of the guardrails, and at oral argument, counsel was unable to specify where these safety devices could be found. While the record contains photos of the subject scaffold, there are no photos of the missing guardrails that might serve as a guide to their possible location. Accordingly, defendant’s proof demonstrated only the general availability of safety equipment at a work site, which does not relieve defendants of liability.
PRACTICE POINT: Caselaw has not further defined the meaning of “readily available,” beyond qualifying that a safety device need not be “in the immediate vicinity.” However, the seminal Gallagher case states that the worker should at least “know where to find the safety devices.” Where, as here, a defendant cannot show, and does not even know, the location of safety devices in a space the length of a city block, it cannot establish that the devices were “readily available” to support a sole proximate cause defense.
Interiano v Silverstein Galaxy Prop. Owner, LLC
January 9, 2025
Appellate Division, First Department
Plaintiff fell while working on a motorized scaffold at the exterior fourth floor level of a building. Plaintiff asked her coworker to tie off the scaffold to the building, as coworkers on other scaffolds had done, but he refused to do so. On both days, the wind caused the unfastened scaffold to sway noticeably, but the scaffold remained untied. Plaintiff testified that her accident occurred when the wind, coupled with the force of her coworker's drill boring into the facade, again caused the scaffold to sway away from the building, causing her to lose her balance and fall backward into the scaffold railings, and then to the surface of the scaffold. The trial court granted plaintiff’s motion for summary judgment pursuant to Labor Law § 240(1).
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s decision because the scaffold violated the statute’s requirement that it be so constructed, placed and operated as to give proper protection to plaintiff. Specifically, defendants’ failure to fasten the scaffold to the building directly caused plaintiff to be injured by the very safety device intended to protect her from gravity-related risks posed by working on the building’s fourth-floor exterior.
PRACTICE POINT: An injured person needs not fall completely off a scaffold to recover under § 240(1), so long as the injury resulted from an elevated-related hazard. Here, plaintiff’s fall to the scaffold’s second floor from an unsecured scaffold four stories from the ground was covered by the statute’s extraordinary protection.
Barreto v Board of Mgrs. of 545 W. 110th St. Condominium
January 14, 2025
Appellate Division, First Department
Plaintiff sustained injuries while washing windows at an 11-story building owned by a condominium. The trial court denied summary judgment to plaintiff under Labor Law § 240(1) and denied the motions of the condo defendants for summary judgment but granted the contractor’s (Chelsea) motion dismissing plaintiff’s claims against them since they were not a statutory agent of the condo defendants.
Labor Law § 240(1) (MAS)
The First Department affirmed denial of all motions. Plaintiff established his entitlement to summary judgment by showing that his accident arose from a gravity-related risk against which defendants failed to adequately protect him. However, the opinions of the condo defendants’ and Chelsea’s experts, as well as the testimony of plaintiff’s coworker, raised an issue of fact as to whether plaintiff’s failure to use a rope guard and alleged failure to properly position his rope grab above his head was the sole proximate cause of his accident.
Since Chelsea was the only contractor that the condo defendants retained to perform their window-washing project, the First Department held that Chelsea cannot escape liability under § 240(1) because it delegated the work by subcontracting it to plaintiff’s employer. Chelsea’s authority to supervise and control the work is also demonstrated by its subcontracting the work to plaintiff’s employer and it did not matter that Chelsa did not actually supervise, direct or control the injury-producing work.
PRACTICE POINT: An “agent” of the owner or contractor under Labor Law § 240(1) is someone who can control the activity which brought about the injury. Here, Chelsea could not escape statutory liability because it delegated the work to plaintiff’s employer and thus had the authority to supervise and control the injury-producing work.
Pyankaroo v Renali Realty Group 1, LLC
January 14, 2025
Appellate Division, First Department
Plaintiff fell from a ladder while removing or reattaching a canvas storefront sign that was bolted into the building above the store's front entrance. Plaintiff contended he undertook his task to prepare the storefront for the intended work so that a new LED lighting system could be installed in conjunction with the business’s planned project of replacing the storefront’s roll-down security gate on the front of the building, which was to be performed by contracts. 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. Even assuming plaintiff met his burden, there are factual issues as to whether this work begun and was underway at the time of his fall, and thus whether plaintiff was engaged in a covered activity.
PRACTICE POINT: We analyze every Labor Law § 240(1) claim using the same four criteria: (1) appropriate plaintiff’; (2) appropriate defendant; (3) appropriate project/work; and (4) elevation-related/gravity-related risk. Here, plaintiff had an issue with the third element as the court noted his injury-producing work had the earmarks of routine maintenance, which is not covered under the statute.
Garcia v Soho AOA Owner, LLC
January 21, 2025
Appellate Division, First Department
Plaintiff's decedent was a site safety manager employed by CRSG. Plaintiff's decedent was struck and injured by a metal sign that measured 4' x 5' and 1/4 -inch thick, which fell from a side wall of an overhead sidewalk shed erected on the premises. The sign was fastened by screws to the shed's parapet wall three years prior to the accident. Plaintiff's decedent noted that there were six screws attached to the sign at the time it fell, and other evidence indicated the sign had eight holes for screws to be inserted and the parapet wall to which the sign was affixed would regularly be removed to allow delivery of materials into the upper level of the building.
Several witnesses, including plaintiff's decedent, testified at depositions that the sign had never previously fallen, that no complaints were registered as to its condition, and that nothing appeared to be amiss with the sign prior to the accident, based on visual observation alone. Witnesses did not note any defects in the parapet wall following the accident. The Soho Defendants claimed they had no notice of the latent, unsecure condition of the sign, but no evidence was offered as to any inspections conducted of the sign and the parapet wall to which it was affixed for several years prior to the accident.
The trial court denied the Soho Defendants motions for summary judgement dismissing plaintiff’s common-law negligence and Labor Law §200 claims and denied Soho and Plaza’s motion for summary judgment for conditional contractual indemnification. The trial court also denied CRSG’s motion to dismiss Soho Defendants’ contractual claims against them.
 Labor Law § 200 and Common-Law Negligence (EDA)
The First Department affirmed the trial court’s decision, finding that where an object on the premises is capable of deteriorating, or the hazard it presents is concealed from view, the property owner, as well as a general contractor under Labor Law § 200, must demonstrate that reasonable inspections of the object were conducted to establish prima facie that they lacked notice of the dangerous condition. Absent proof of prior inspections conducted of the sign, the Soho Defendants' burden on their motion never shifted to plaintiff, regardless of the sufficiency of the papers offered in opposition. Even if the Soho Defendants had made out a prima facie case, on this record the Court found factual issues as to whether a reasonable inspection by the building owner or property manager would have detected the latent hazardous condition of the sign before it fell on plaintiff's decedent.
 Indemnity Issues in Labor Law (PCSM)
The First Department held that defendants, Soho AOA and Plaza, established their entitlement to summary judgment on their claim for conditional contractual indemnification from CRSG, the site safety contractor. The subject indemnification provision required that CRSG indemnify Soho AOA and Plaza for losses arising out of or resulting from performance of CRSG’s work to the extent the loss was caused in whole or in part by the conduct, acts or omissions of, or breach of contract by, CRSG or anyone directly or indirectly employed by it. The First Department held that this indemnification allowed for conditional contractual indemnification in favor of Soho AOA and Plaza and against CRSG despite the existence of a factual issue as to their negligence. The First Department held, however, that factual issues as to whether CRSG properly performed its obligations under its site safety subcontract precluded dismissal of the third-party claim for contractual indemnification.
Silva v 770 Broadway Owner LLC
January 21, 2025
Appellate Division, First Department
Plaintiff was marking off areas of the floor with duct tape to prepare the floor for painting when he was struck on the back of the head by a ladder, causing him to lose consciousness. The trial court granted defendants’ motions dismissing plaintiff’s Labor Law § 240(1) claims and denied plaintiff’s cross-motion for summary judgment on that same claim.
Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court’s decision, granted plaintiff’s cross-motion and denied defendants’ motion. Although plaintiff conceded that he did not see the ladder before the accident, his deposition testimony sufficiently identified the ladder as the cause of his injuries. The evidence also demonstrated that the ladder was not adequately secured for the purposes of the undertaking. Moreover, it was foreseeable for a ladder resting against a wall to topple over and strike a nearby worker.
PRACTICE POINT: It is settled law that an injured worker is entitled to summary judgment in a “falling object” claim where he or she was struck by a falling object, such object required securing for purposes of the injury-producing work, and that the lack of adequate overheard overprotection failed to shield against the falling of such object and therefore proximately caused the injuries.
Mejia v 770 Broadway Owner, LLC
January 28, 2025
Appellate Division, First Department
Plaintiff was struck by a 16-foot-long scaffold pipe that had been left unsecured on its end. The trial court denied plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim and granted the motions of Owner and Lhotse dismissing that claim against them. The Court also denied M&M’s motion for summary judgment and dismissed their crossclaims for common-law indemnification.
Labor Law § 240(1) (MAS)
The First Department reversed the trial court and granted plaintiff’s motion for partial summary judgment against Owner and Lhotse. The weight of the pipe and its descent were not de minimis, nor are there any issues of proximate cause or credibility that would preclude summary judgment on that claim in favor of plaintiff and against Owner and Lhotse as the owner and general contractor at the project.
PRACTICE POINT: Although plaintiff’s work did not involve the pipes, and there was no evidence that plaintiff had any knowledge of the presence of the pipes in the area, the record demonstrated that the pipes were not adequately secured for purposes of the undertaking, as required under Labor Law § 240(1). Under that scenario, summary judgment is proper for the injured worker.
Indemnity Issues in Labor Law (PCSM)
The First Department held that M & M was entitled to dismissal of all crossclaims against it, finding no admissible or credible evidence placing M & M at the project to impart common law, statutory, or contractual liability. The First Department further reasoned that though third-party defendant Rock Group’s principal believed that that it had subcontracted work to M&M, and that one of M&M's unnamed employees must have left the pipe at that location, Rock Group failed to proffer any witness testimony placing M&M at the project, nor did it submit any documentary evidence such as invoicing or payment for the alleged work.
Rodriguez v Riverside Ctr. Site 5 Owner LLC
January 28, 2025
Appellate Division, First Department
Plaintiff was injured while working as a delivery truck driver for Port Morris. Plaintiff had just completed a delivery of tiles for other employees to install when he allegedly stepped and fell into a two-foot by three-foot hole near a temporary loading dock ramp. Riverside owned the premises, Tishman was the construction manager for the work taking place. Five Star was the electrical contractor responsible for installing temporary lighting during the project. The trial court granted Five Star’s motion for summary judgment dismissing Labor Law §§ 240(1), 241(6), and 200 claims against them and granted Riverside’s and Tishman’s motion dismissing the §§ 240(1) and 241(6) claims.
Labor Law § 240(1) (MAS)
The First Department reversed the trial court’s decision and granted plaintiff partial summary judgment on liability. Because plaintiff’s work in delivering and unloading tiles to be used in the activity covered by Labor Law § 240(1) was “necessary and incidental” to the protected activity, he was within the class of workers protected by the statute, notwithstanding that he was not assigned to participate in the installation of the tiles.
PRACTICE POINT: The task a plaintiff is performing at the exact moment of their accident is not dispositive of whether they were engaged in a protected activity for purposes of liability under § 240(1). Rather, the inquiry includes whether plaintiff’s employer was contracted to perform the kind of work enumerated in the statute and whether plaintiff was performing work “necessary and incidental” to a protected activity.
Labor Law § 200 and Common-Law Negligence (EDA)
The First Department affirmed the trial court’s decision, noting that, “[t]o be treated as a statutory agent, the subcontractor must have been delegated the supervision and control either over the specific work area involved or the work which [gave] rise to the injury. If the subcontractor’s area of authority is over a different portion of the work or a different area than the one in which the plaintiff was injured, there can be no liability under this theory." Here, Five Star's work as the electrical contractor was limited to providing electrical installation and temporary lighting, and did not encompass either tile work or maintaining the temporary ramp or surrounding areas.
Bravo v 609 W 56th St. Prop., LLC
January 15, 2025
Appellate Division, Second Department
Plaintiff was working at a construction site in Manhattan when he slipped on oil underneath sand on the fourth floor of the site. According to plaintiff, before he slipped, he had been cleaning up debris from the demolition of sheetrock walls, as he had been instructed to do by his foreman and slipped while walking to get a broom and a shovel. The trial court granted plaintiff’s motion for partial summary judgment on liability under Labor Law § 241(6) based on a violation of Industrial Code 23-1.7(d).
 Labor Law § 241(6) (TPW)
The Second Department affirmed the grant of summary judgment in favor of plaintiff based on violation of Labor Law § 241(6) predicated on 12 NYCRR 23-1.7(d), which relates to slipping hazards. Plaintiff met his burden by establishing that his injuries were proximately caused by a violation of the Industrial Code section by submitting a transcript of his deposition testimony, in which he testified that, while cleaning up debris from the demolition of sheetrock walls, as he was instructed to do by his foreman, and walking to get a broom and a shovel, he slipped and fell when he stepped on oil, a foreign substance, underneath sand on the floor. In opposition, the defendant failed to offer any evidence, other than mere speculation, to refute the plaintiff's showing.
Medina v 1277 Holdings, LLC
January 22, 2025
Appellate Division, Second Department
Plaintiff and a coworker were pushing a pallet jack up a plywood ramp when the coworker lost control of the pallet jack, which hit plaintiff's shoulder, and caused him to fall from the ramp onto the floor. Plaintiff testified at his deposition that the ramp was wet, slippery, and covered in frozen water at the time of the accident. The trial court denied summary judgment to plaintiff under Labor Law §§ 240(1) and 241(6) based on a violation of 12 NYCRR 23-1.7(f) but granted plaintiff’s motion under § 241(6) based on a violation of Industrial Code 23-1.7(d).
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s decision, finding that plaintiff’s submissions failed to eliminate triable issues of fact as to whether adequate safety devices were provided to him at the work site and, if not, whether the absence of such devices was a proximate cause of the accident. The opinion of plaintiff’s expert failed to establish that the safety devices provided to plaintiff, including the pallet jack and the ramp, were inadequate.
PRACTICE POINT: Where, as here, plaintiff’s expert fails to establish the safety device provided (pallet jack and the ramp) was inadequate, plaintiff cannot meet his or her burden on demonstrating that § 240(1) was violated, and that the violation proximately caused his or her injury. Only after that showing does the burden then shift to defendant to raise a factual issue by presenting evidence that the device furnished was adequate and properly placed and that the conduct of plaintiff may be the sole proximate cause of his or her injuries.
Labor Law § 241(6) (TPW)
The Second Department affirmed the trial court’s decision on the issue of liability pursuant to a violation of Labor Law § 241(6) as was predicated on a violation of 12 NYCRR 23-1.7(d) and (f). Specifically, plaintiff failed to establish that 12 NYCRR 23-1.7(f), which provides that “[s]tairways, ramps or runways shall be provided as the means of access to working levels above or below ground,” was violated. Accordingly, the Court held that the trial court properly denied that branch of the plaintiff's motion. However, plaintiff made a prima facie showing that the ramp was wet and slippery at the time of the accident, in violation of 12 NYCRR 23-1.7(d), which requires employers to remove or cover certain substances, including ice, snow, and water, that may cause slippery footing, and that this violation proximately caused his accident. In opposition, the Court further held that Hiline failed to raise a triable issue of fact.
Velazquez v Mosdos Meharam Brisk of Tashnad
January 22, 2025
Appellate Division, Second Department
Plaintiff commenced an action when he fell through an uncovered opening in the floor where a staircase was to be built while working at a construction site. Plaintiff was employed by AFP who were to install fire sprinklers at the site. The trial court granted plaintiff’s motion for summary judgment against Mosdos & JBE alleging violations of Labor Law 240(1) and 241(6). The parties thereafter entered into a stipulation of settlement in open court, settling plaintiff’s claims. Prior to the settlement, the Second Department reversed a prior order denying AFP’s motion to vacate a prior order granting third-party plaintiff’s motion for summary judgment on contractual indemnification against AFP. After the Second Department’s decision, AFP moved to restore the action to the trial calendar to determine the liability of AFP and third-party plaintiffs. Mosdos & JBE opposed AFP’s motion and moved to dismiss AFP’s counterclaim for contribution arguing General Obligations Law § 15-108(c) barred the counterclaim. The trial court granted AFP’s motion and denied the cross-motion.
Indemnity Issues in Labor Law (PCSM)
The Second Department affirmed the trial court’s decision. Since the liability of AFP and third-party plaintiffs had been adjudicated by the trial court before the parties’ execution of the stipulation of settlement, General Obligations did not apply to bar AFP’s counterclaim for contribution. Moreover, even if it could apply, the trial court properly determined that the parties waived its application. Since the parties agreed in the stipulation that AFP’s insurer would pay the settlement in full, but that AFP’s appeal and the third-party litigation would continue to resolve the question of liability, the Court held that the parties did not intend for AFP to give up its claim for contribution against third-party plaintiffs.
PRACTICE POINT: General obligations Law § 15-108(c) provides that “[a] tortfeasor who has obtained his own release from liability shall not be entitled to contribution for any other person.” However, it does not apply to settlements agreed upon after the adjudication of the liability of the settling tortfeasors. There is nothing in the legislative history or purpose to indicate that the statute was intended to be nonwaivable.
Burgos v Darden Rests., Inc.
January 2, 2025
Appellate Division, Third Department
Plaintiff was injured on the job while demolishing a walk-in freezer at property leased to N & D. Darden managed the restaurant, who hired DMC Facility Services, plaintiff's employer, to demolish the walk-in freezer at the restaurant. While plaintiff was accessing the top of the freezer from the building's roof and cutting around a sprinkler head that went into the freezer's ceiling, the freezer roof collapsed and plaintiff fell to the floor, sustaining injuries to his right side and head. The trial court denied plaintiff's motion for partial summary judgment and granted Darden, N & D and Olive Garden’s cross-motion to dismiss the Labor Law §§ 241(6) and 200 claims against them.
Labor Law § 240(1) (MAS)
The Third Department affirmed the denial of plaintiff’s motion. Although the parties offered conflicting evidence as to what equipment was provided, they seemingly agree that it was sufficient to complete the job from below. Moreover, the affidavits of Munger and Simmons allege that plaintiff was told to demolish the freezer from below and was instructed to call a supervisor if plaintiff had questions or concerns during the job. Therefore, the Court found a triable issue of fact as to whether plaintiff actively ignored the supervisor’s instructions and whether his conduct was the sole proximate cause of his injury. However, to the extent that the trial court in its decision implied that there was no elevation-related hazard as a matter of law, the Third Department disagreed with that finding and instead determined there are also issues of fact in this regard.
PRACTICE POINT: This case is a great example of the sole proximate cause defense. A defendant has no liability under § 240(1) when plaintiff: (1) had adequate safety devices available, (2) knew both that the safety devices were available and was expected to use them, (3) chose for no good reason not to do so, and (4) would not have been injured had he or she not made that choice. Here, plaintiff was not entitled to summary judgment as defendants raised a triable issue of fact as to the sufficiency of the equipment provided and whether plaintiff’s negligence was the sole cause of his injury.
Labor Law § 241(6) (TPW)
The Third Department held that by raising no argument relative to the denial of plaintiff’s motion as to his Labor Law § 241 (6) claim or the granting of defendants' cross-motion for summary judgment as to the Labor Law § 241(6) claim, plaintiff abandoned the arguments on appeal.
James v Marini Homes, LLC
January 9, 2025
Appellate Division, Third Department
Plaintiff, an employee of D & D Masonry., was injured while working at a construction site in a four-foot-deep "dig" excavated for the foundation of a new townhome. Plaintiff was allegedly injured when his coworker, around 10 feet away, threw a wooden board from ground level in plaintiff’s direction while he was inside the dig. Marini Homes was the general contractor which hired D & D Masonry for the foundation work. The trial court denied each party’s motion and cross-motion for summary judgment, finding plaintiff’s proof was insufficient for summary judgment but raised questions of fact to defeat the general contractor’s motion.
Labor Law § 240(1) (MAS)
The Third Department reversed the trial court’s decision and dismissed the Labor Law § 240(1) claim. Defendants’ proof showed that the dig was surrounded by an earthen embankment, which plaintiff described as a “ramp” from ground level to the bottom of the dig where he was working. Accordingly, the Court held that defendant established that plaintiff was not injured by an object that fell, while being hoisted or secured, because of the absence of inadequacy of a safety device of the kind enumerated in the statute. In opposition, the Court determined that plaintiff failed to raise an issue of fact.
PRACTICE POINT: If the defense can demonstrate that plaintiff was not injured by an object that fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute, then the burden will shift to plaintiff to raise a triable issue of fact. Here, plaintiff could not do so, requiring dismissal of his § 240(1) claim.
Labor Law § 241(6) (TPW)
The Third Department reversed the lower court’s decision on the Labor Law § 241 (6) claim predicated on 12 NYCRR 23-1.7 (a), which specifies, in pertinent part, "Every place where persons are required to work or pass that is normally exposed to falling material or objects shall be provided with suitable overhead protection". Defendant's proof showed that the dig area was not "normally exposed to falling material or objects", and, in any event, plaintiff was working only four to five feet below grade. Thus, defendant demonstrated the "overhead protection" regulation was not applicable. Accordingly, defendant met its preliminary burden to show that plaintiff could not recover under Labor Law § 241 (6) as a matter of law. Plaintiff was unable to raise an issue of fact.
Labor Law § 200 and Common-Law Negligence (EDA)
The Third Department unanimously affirmed the trial court’s decision that, in viewing the evidence in the light most favorable to plaintiff as the nonmovant, a jury could find that defendant exercised direct supervision or actual control over the construction site or the work activity bringing about the injury. Accordingly, the summary judgment burden never shifted to plaintiff on those claims, and the rial court appropriately declined to dismiss them.
New York Industrial Code Regulations (EDA)
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Note from David R. Adams:
