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Volume XV, No. 1
Wednesday, December 3, 2025
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 Note from David R. Adams:
Do you have a situation? We love situations. Give us a call, send an email, drop by; we truly enjoy solving complex Labor Law and Risk Transfer issues.
For the fourth time, the Grieving Families Act has been sent to the Governor. She now has until December 12 to sign or veto the bill. We have provided information on this over the past four years but in summary, if the bill were to pass, it would allow for an expanded pool of individuals who can collect in the event of a wrongful death and allows recovery of non-economic damages for grief, sympathy and loss of consortium. See our full write up here.
Eric Andrew is under the weather this week, so you are being graced with Marty Violante’s expert analysis of the § 240(1) cases. I was going to do them myself, but Marty beat me to the punch and for that I truly thank her.
As you may recall last month, we introduced a new service we are calling the Case of the Month. Each month, we will provide a brief, 30-minute webinar focused on a very specific issue in New York Labor Law or related Risk Transfer.
This month it will be held on Tuesday, December 16th at 2pm. A link is supplied here. We will be discussing the defense to Labor Law § 240(1) and § 241(6) where, as in the Healy v Trinity Hudson Holdings case below, the defense attorney is able to distinguish between the action or activity that caused the injury, and the enumerated activity that triggers Labor Law protections. Marty and I will host the Webinar and invite anyone interested to attend. This session will concentrate on this single, impactful issue—providing case law, practical argument strategies, and guidance on identifying this defense early in litigation. We hope you can attend.
This is our first webinar session, and there will be another each month discussing a specific and distinct issue or twist. Hosting these interactive sessions will allow us to provide some knowledge and an opportunity for all of you to ask any Labor Law related questions on this, or any, topic. We will keep them very short, on a single topic and will gladly accept any topic recommendations.
On with the fun part of the edition. In the first photo below that I took while on the New York State Thruway at a rest stop, the State of New York has hired a company to clean the windows in all the rest stops across the state. The soon to be plaintiff, an employee of the company hired, has set up his ladder and climbed up to clean the topmost window. His co-worker has an extended handle cleaner and is dusting the top of the wall just beneath the ladder. When the co-worker swings the pole a bit too hard, it hits the ladder, causing the ladder to move and the plaintiff to lose his balance. He is somehow able to hang on to the ladder and neither he nor the ladder fall. He does, however, injure his back and shoulder while hanging on to prevent falling. The very next day, he contacts an attorney, having his choice from 6 or 7 names he saw on billboards driving home from work, and they file a Summons and Complaint in Supreme Court seeking a violation of § 240(1). Will he win?
Ok, there are several issues to address. First, let’s start with the easy one. The claim in Supreme Court will not survive a motion to dismiss as the State of New York, the owner of the property, can only be sued in the Court of Claims. Next, let’s analyze the prima-facie case for plaintiff. The plaintiff is a person so employed and thus a valid plaintiff. The State owns the property and building and is thus a valid defendant, in the Court of Claims where the case will eventually be heard. The plaintiff was employed doing commercial window washing, a covered activity. The plaintiff was injured due to a height differential and the effect of gravity even though he did not fall. The defense that he did not fall is long since evaporated, and injury while preventing a fall is grounds to apply § 240(1). The plaintiff has a valid and almost certainly successful § 240(1) claim.
In our second case of the month, we have some house painting going on. The gentleman on the ladder is the homeowner’s uncle who is helping the owner to paint his house. While he volunteered to help, the homeowner insisted on paying him. The owner, who is not at home as the uncle is painting but rather is at work, comes home to find his uncle on the ground with two broken legs. He immediately asks his uncle, as he helps him into his single-family house, how he fell? His uncle says that everything was going great, but the picnic table he had the ladder on had a leg that broke and this caused the ladder to kick out and the plaintiff to fall. The homeowner asked what on earth caused you to put the ladder on the top of the table, and the plaintiff said that he did not have a ladder long enough without the table. § 240(1) case?
Let’s again address the prima facie case. The plaintiff was a person so employed and thus a valid plaintiff. The project, painting, is a covered activity. The injury was caused by an elevation differential and the effects of gravity and the nephew who hired him owns the house and is thus a valid defendant. The defense here will be that the nephew property owner is the owner of a single family home and did not supervise, direct or control the injury producing work and is thus entitled to the single family home owner exemption.
That's it for this month, but as a final note, we encourage you to tune in to the Coverage Team's webinar: Keep Truckin'! Motor Carrier Liability Insurance and the MCS-90 with Hurwitz Fine Insurance Coverage Associate Ryan P. Maxwell. Click here to register.
-David
Hurwitz Fine P.C.
The Liberty Building
424 Main Street, Suite 1300
Buffalo, New York 14202
Phone: 716.849.8900
Fax: 716.855.0874
Email: [email protected]
Labor Law Pointers is published the first Wednesday of each month. If you know of others who may wish to subscribe to this free publication, please feel free to forward it. If you wish to subscribe or unsubscribe, please send an e-mail to [email protected] or call the Editor/Labor Law Team Leader David R. Adams directly at (716) 849-8916.
Don’t forget to subscribe to our other publications:
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Medical & Nursing Home Liability Pointers: Medical & Nursing Home Liability Pointers provides the latest news, developments, and analysis of recent court decisions impacting the medical and long-term care communities. Contact Liz Midgley at [email protected] to subscribe.
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Plaintiffs were employed by a subcontractor and allegedly sustained injuries when the plaintiff fell from a scaffold ladder on a job site. He testified and averred, supported by an expert affidavit, that he “fell from a scaffold ladder” and that the ladder was not clamped to the bottom of the scaffold platform, the ladder was improperly placed (requiring him to step over a windowsill to reach it), and the ladder was too short for him to hold onto the scaffold piping while descending from the outrigger to the scaffold platform.
Defendants-appellants moved to vacate a default judgment that had been entered after they failed to respond to plaintiffs’ motion for partial summary judgment on the § 240(1) and § 241(6) claims. The trial court denied defendants’ motion to vacate the default judgment granting plaintiffs’ motion for partial summary judgment on those claims.
 Labor Law § 240(1) (MRV)
The Court held that defendants failed to offer a meritorious defense to plaintiff’s Labor Law 240(1) claim because the site supervisor’s statement did not challenge plaintiff’s account of the accident or question plaintiff’s credibility. A notarized statement that fails to rebut plaintiff’s testimony that he fell from a scaffold ladder, photographic evidence showing the ladder was not clamped to the scaffold platform, and testimony that the ladder size and placement were improper is not sufficient to vacate a default judgment granting plaintiff’s motion for partial summary judgment.
PRACTICE POINT: Filings in opposition to a motion for summary judgment must create a genuine dispute of material fact to successfully oppose the motion.
 Labor Law § 241(6) (TJE)
In light of the Court’s decision on Plaintiff’s Labor Law 240(1) claim, the 241(6) issues were deemed academic.
Plaintiff was performing elevated facade scraping work while standing on a plank positioned above a metal awning. He testified that he was on a plank “3 to 4½ feet above” the awning when the unsecured plank suddenly shifted and tipped, causing him to fall and land forcefully on the awning beneath the makeshift plank platform.
Defendants moved for summary judgment dismissing all Labor Law and common-law claims. The trial court denied that branch of defendants’ summary judgment motion seeking dismissal of plaintiffs’ Labor Law § 240(1) claim, but granted those branches of the motion seeking dismissal of plaintiffs’ Labor Law § 241(6) and § 200 claims, as well as their common-law negligence claims.
Labor Law § 240(1) (MRV)
Plaintiff established that he fell from a height which was not de minimus, thus warranting protection under Labor Law 240(1). The First Department has repeatedly held “[t]here is no bright-line minimum height differential that determines whether an elevation hazard exists.” (quoting Palumbo v. Citigroup Tech., Inc. 240 A.D.3d [1st Dept. 2025]). The Court rejected defendants’ argument that plaintiff was the sole proximate cause of his injuries. There was no evidence that plaintiff deliberately disobeyed a direct instruction to use clamps and/or ropes. The Court found that where multiple safety device shortcomings led to plaintiff’s accident, logically plaintiff cannot be the sole proximate cause of his injury and any such argument is barred.
PRACTICE POINT: When considering a sole proximate cause defense, it is important to evaluate whether multiple safety device failures contributed to plaintiff’s fall because the defense will fail under those circumstances.
Labor Law § 241(6) (TJE)
In light of the Court’s decision on Plaintiff’s Labor Law 240(1) claim, the 241(6) issues were deemed academic.
 Labor Law § 200 and Common-Law Negligence (JLD)
In light of the Court’s decision on Plaintiff’s Labor Law 240(1) claim, the Labor Law §200 issues were deemed academic.
Plaintiff was working in a meeting room that had projection screens, soundproof walls, and raised floors, including a raised platform for speakers. To perform work on the ceiling above the platform, Plaintiff set a ladder on the platform near a two-step staircase and completed his ceiling work. He then descended the ladder and placed both feet on the platform floor, then turned to walk down the two-step staircase, missed a step, and fell.
Defendants moved for summary judgment dismissing Plaintiff’s Labor Law § 240(1) claim as against them. The trial court denied their summary judgment motions on the § 240(1) claim.
Labor Law § 240(1) (MRV)
The First Department reversed the lower court and granted defendants’ motion for summary judgment pursuant to Labor Law 240(1). There is no liability under 240(1) when plaintiff’s injuries are not related to the failure of a safety device to protect plaintiff from a gravity-related hazard. Plaintiff’s testimony established as a matter of law that the ladder was not the cause of plaintiff’s injury. When a plaintiff’s injury results from a separate hazard that is wholly unrelated to the risk that brought about the need for the safety device, there is no liability under 240(1).
PRACTICE POINT: When analyzing a case under 240(1), determine whether plaintiff’s injuries resulted from a protected, gravity-related hazard or an unrelated risk because the latter is not covered under 240(1).
Plaintiff was standing on an A-frame ladder removing insulation coverings from ceiling pipes. He testified that he was working at the top of the unsecured ladder when it suddenly moved and fell, causing him to land on the floor and injure his shoulder. His supervisor had set up the ladder, used it briefly while plaintiff held it, then left the room before the accident occurred. Plaintiff testified he set the ladder upright after he fell from it prior to his supervisor’s return.
The trial court denied plaintiff’s summary judgment motion on his Labor Law § 240(1) claim.
Labor Law § 240(1) (MRV)
The First Department reversed the lower court and granted plaintiff’s motion for summary judgment. Plaintiff made a prima facie showing that his injuries were proximately caused by a 240(1) violation because the evidence established that defendant failed to provide a safety device to ensure that the ladder, which plaintiff was instructed to use, would remain upright while plaintiff worked. The evidence also showed that plaintiff fell from the ladder when it shifted. Defendant failed to raise an issue of fact or challenge plaintiff’s credibility.
PRACTICE POINT: A plaintiff can successfully obtain summary judgment for an unwitnessed fall under 240(1) when nothing in the record contradicts the plaintiff’s testimony of the event or challenges plaintiff’s credibility.
Plaintiff slipped and fell on an ice condition near the ninth-floor landing of a cement staircase that was exposed to the outside elements. He later reported ongoing “back injuries from the fall” after initially trying to “walk off” the injury and returning to work for several days.
Plaintiff moved for partial summary judgment on his Labor Law § 241(6) claim predicated on Industrial Code (12 NYCRR) § 23-1.7(d), as well as on his Labor Law § 200 and common-law negligence claims. The trial court granted Plaintiff’s motion for partial summary judgment on his Labor Law § 241(6) claim but denied Plaintiff’s motion on Labor Law § 200 and common-law negligence claims on notice grounds.
Labor Law § 241(6) (TJE)
The Appellate Division affirmed the trial Court’s granting of Plaintiff’s motion for partial summary judgment on his Labor Law § 241(6) claim. The Court held that Plaintiff’s testimony that he slipped on ice on the exposed staircase, corroborated by meteorological records showing freezing temperatures for 50 hours before the accident, a climatological expert’s affirmation, and an eyewitness account, established a prima facie violation of § 23-1.7(d), and that defendants failed to raise a triable issue of fact as to whether Plaintiff was injured in a slip-and-fall on ice.
The Court also drew attention to the fact Plaintiff was never asked to describe the ice condition at his deposition, or to explain why he believed an ice condition was the cause of his slip-and-fall.
The Court further explained that awarding Plaintiff summary judgment on § 241(6) was not inconsistent with denying summary judgment on his § 200 and negligence claims, because under § 241(6) a general contractor is not absolved of liability for lack of notice or an opportunity to cure a dangerous condition.
Reyes v Rahman
November 19, 2025
Appellate Division, Second Department
Plaintiff allegedly sustained personal injuries while working at premises owned by defendant Mohammad Rahman when a ladder on which Plaintiff was standing shifted, causing him to fall.
Defendant moved for summary judgment dismissing the Labor Law § 240(1) and § 241(6) causes of action asserted against him, arguing that he was entitled to the homeowner’s exemption. Plaintiff opposed and cross-moved for summary judgment on liability on the Labor Law § 240(1) cause of action. The trial court granted defendant’s summary judgment motion dismissing Plaintiff’s Labor Law § 240(1) and § 241(6) causes of action and denied Plaintiff’s cross-motion for summary judgment on Labor Law § 240(1).
Labor Law § 240(1) (MRV)
The Second Department held the lower court properly denied plaintiff’s cross motion for summary judgment on § 240(1) because defendant raised triable issues of fact regarding the applicability of the homeowner’s exemption. However, the Court also modified the lower court’s order to deny defendant’s motion for summary judgment under § 240(1) because the defendant failed to eliminate triable issues of fact as to whether he was entitled to the homeowner’s exemption.
PRACTICE POINT: To successfully assert the homeowner’s exemption, a defendant must eliminate triable issues of fact as to whether the work being performed related to a commercial purpose of the premises and the defendant’s intended use of the premises.
Labor Law § 241(6) (TJE)
The Appellate Division held that the homeowner’s exemption applies to Labor Law §241(6) claims, but found a question of fact on application of the exemption about whether the property was being renovated for a commercial purpose, and whether it was intended for use as a three-family dwelling.
Plaintiff was working for D & J Concrete Corp. at a construction site in Westchester County on January 12, 2018. Tappan Zee Constructors, LLC was the “program manager” and had retained Andron Construction Corp. as the general contractor. While Plaintiff was handling a power saw, he slipped and fell on rainwater that had accumulated on a plastic vapor barrier covering the floor, causing the saw to activate and cut his left forearm.
Plaintiffs brought claims for common-law negligence, Labor Law § 200, and Labor Law § 241(6) predicated on 12 NYCRR 23-1.7(d). The Supreme Court, Queens County, denied Plaintiffs’ summary judgment motion on liability under Labor Law § 241(6). Defendants opposed and cross-moved for summary judgment dismissing the causes of action for common-law negligence and violations of Labor Law §§ 200 and 241(6). The Supreme Court denied the defendants’ cross-motion for summary judgment in its entirety, leaving all three causes of action intact.
Labor Law § 241(6) (TJE)
The Appellate Division reversed the order insofar as appealed from and granted Plaintiffs’ summary judgment motion on liability under Labor Law § 241(6). The court held that Plaintiffs made a prima facie showing that the rainwater on the plastic vapor barrier created a slippery condition in violation of 12 NYCRR 23-1.7(d) and proximately caused the accident, and that Defendants failed to raise triable issues that the rainwater was an integral part of the work or that Plaintiff’s conduct was the sole proximate cause of his injuries.
The court also affirmed the denial of Defendants’ cross-motion for summary judgment dismissing that claim, finding Defendants did not establish prima facie that 12 NYCRR 23-1.7(d) was inapplicable, not violated, or that any violation was not a proximate cause of the injury.
Labor Law § 200 and Common-Law Negligence (JLD)
The Appellate Division affirmed the denial of Defendant’s cross motion on Labor Law § 200, finding that Defendants failed to demonstrate that they did not have actual or constructive notice of the allegedly dangerous condition on the premise or that the condition constituted an ordinary and obvious hazard of the Plaintiff’s condition. Defendants failed to meet their prima facia burden and the common law negligence and Labor Law § 200 branches of the cross-motion were denied.
Plaintiff allegedly sustained personal injuries while doing demolition work at a building owned by 225 Fourth, LLC, where JRM Construction Management, LLC served as the general contractor. Plaintiff asserted causes of action alleging, among other things, violations of Labor Law §§ 200, 240(1), and 241(6).
After a jury trial on liability, the jury found Plaintiff 100% at fault for the accident and the defendants 0% at fault. At the same time, the jury found that the defendants failed to perform continuous inspections during demolition to detect a weakened or deteriorated structure, failed to provide safe footing while Plaintiff was performing demolition, and that these failures were substantial factors in causing the accident. The Supreme Court recognized the verdict as inconsistent, sent the jury back with instructions to follow the verdict sheet, and the jury returned with essentially the same allocation of fault, now expressly finding that Plaintiff’s workplace was unsafe.
Plaintiff made an oral application, in effect pursuant to CPLR 4404(a), to set aside the jury verdict and for judgment as a matter of law. The Supreme Court denied this CPLR 4404(a) application and a judgment was entered dismissing the complaint in favor of the defendants.
Labor Law § 240(1) (MRV)
The Second Department reversed judgment, reinstated the complaint, and remitted the matter to Supreme Court for a new trial because the verdict in favor the defendants could not have been reached on any fair interpretation of the evidence.
PRACTICE POINT: A jury verdict may be set aside as contrary to the weight of the evidence when the verdict could not have been reached on any fair interpretation of the evidence.
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Labor Law Pointers
Editor
David R. Adams
Associate Editor
Eric D. Andrew
Associate Editor
Patrice C. S. Melville
Associate Editor
Ashley M. Cuneo
Associate Editor
Tyler J. Eckert
Associate Editor
Jessica L. Deren
Associate Editor
Marten R. Violante
Labor Law Team
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David R. Adams, Team Leader
[email protected]
Patrice C. S. Melville
[email protected]
Brian F. Mark
[email protected]
Elizabeth K. Ognenovski
[email protected]
Bradon S. Carlson
[email protected]
Joseph P. Mendoza
[email protected]
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Hurwitz Fine P.C.
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Phone: 716-849-8900, Fax: 716-855-0874
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