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Volume XV, No. 3
Wednesday, February 4, 2026
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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.
We have been very busy lately updating our clients and carriers about the ramifications of the AVOID Act. In fact, as soon as I am done with this month’s edition, I will be hosting another webinar for a carrier client. We are still waiting for the chapter amendments to be adopted, but word is that it will be happening well before the effective date of the Act, April 18, 2026. For anyone who missed our general webinar about the Act, please feel free to reach out and we can share the information so you understand what the current Act dictates, the proposed and expected amendments, and our recommendations to best protect our clients and carriers.
I don’t know about where you are located, but it has been freaking cold here in western New York. More mornings than not, I’ve been looking at negative numbers on the truck thermometer, -7 yesterday, with even colder weather expected this weekend. I am a skier and love the cold, but only to a point. My mantra — that there is no bad weather, only bad gear — has been severely tested over the past three weeks.
In our February Labor Law Pointers “Case of the Month,” we will take a look at Callan v RCB3 Nominee, LLC (1st Dept, Jan. 15, 2026) to address what testimonial evidence is actually strong enough to counter a plaintiff’s account that a ladder “shifted” or “moved,” and prevent a finding of prima facie entitlement on his Labor Law 240(1) claim. In Callan, the Appellate Court found Plaintiff’s own statement in the accident report that he missed a step on the ladder did no contradict his assertion that the ladder shifted causing him to fall. We will use this Appellate Court decision (and a few other examples) to attempt to develop a practical roadmap for identifying the kinds of witness testimony which can meaningfully rebut Plaintiff’s claim that a ladder shifted or moved. To sign up for this webinar click here.
We hope that you are enjoying our attempts to share knowledge and practice points focused sharply on a single topic, and done expeditiously, allowing it to fit into everyone’s day. Attendance has been strong and we urge you to tune in.
For this month’s photos, we start with a worker who works for an electrical contractor hired by the owner of an office building to repair outdoor lights that had stopped working. After some preliminary testing, it was determined that there was a cut or break in the wire inside the conduit on the exterior of the building, roughly three stories up. The employee sent to the job had only a single 24-foot ladder with him. However, he asked an HVAC contractor who happened to be passing by, with ladders on top of his truck on his way to lunch, if he could borrow one. The contractor was more than willing to help a fellow worker and even offered to hold the bottom of the death-trap ladder tower they had strapped together. When the worker reached the top of the ladder and attempted to unscrew a section of the conduit, he lost his balance and fell, landing on the friendly HVAC contractor and miraculously escaping injury. The HVAC worker was far less fortunate and sustained severe neck and back injuries, becoming the plaintiff. Didn’t see that twist coming, did you? § 240(1) case?
First, let’s determine the type of case we have. We have a falling worker case, he, by the grace of God, escaped without injury, so no actual claim can be filed. Do we have a falling object case? We have a falling object that strikes a person and injures them. The basics for a falling object claim are that the object must have been in the course of being hoisted or must be an object that required securement. The falling object here was not secured in any way, and the worker was not using fall protection. There will be all sorts of discussion and argument over whether a worker on a ladder requires fall protection, but my guess is that one look at this photo will make it impossible to argue, with a straight face, that the plaintiff was provided with an appropriate safety device. In the end, the plaintiff was likely struck by an object that should have been secured in some manner. That is not the end of the analysis, however. Recall that the plaintiff was simply was just a guy driving by on his way to lunch, and was therefore not a “person so employed.” As a result, he is not a valid plaintiff. Summary judgment motion for the owner granted plaintiff not entitled to the protections of the Labor Law.
In our next photo we have a plaintiff hired to apply stucco to the outside wall of a hotel. When his co-worker arrived, they discovered that they only brought one end of the scaffold A-frame ladders they use to support the plank. The other end ladder was in the truck a 3 minute walk away. They thought that they had a great idea and could get the job done quickly, without the support ladder, if they took turns holding the other end. The plaintiff, the one on the plank, had been trained and knew that it was not an appropriate method to work and admitted as much during his deposition. Unfortunately for the plaintiff, just as they were getting the job done without incident, the dog seen lurking in the doorway saw a cat run by and gave chase. His leash wrapped around the feet of the worker holding the plank causing him to drop the plank and launch the plaintiff off the plank and into the entryway of the hotel causing injury. § 240(1)?
The plaintiff would seem to have a prima facie case of § 240(1). He is a person so employed and thus a valid plaintiff. The hotel owner is the owner of a commercial property and is a valid defendant. The job undertaken involved the application of stucco, and would be considered construction and also an alteration. The plaintiff sustained an injury due to a differential of height and the application of gravity. We are now left with a sole proximate cause defense. Here, the plaintiff was arguably provided with an appropriate safety device, the other ladder, which was available as it was on site in the truck. He was instructed to use the safety device, both ladders on the board. He failed to use or misused the appropriate and available safety device he knew he was expected to use and he did so for no good reason. Sounds like a pretty good sole proximate cause defense except for one small problem, the decision to do the job in this manner was arrived at based on the input of both of them, and thus the plaintiff will likely not be considered the sole proximate cause of the accident and resulting injury. Summary judgment for the plaintiff is most likely.
That’s it for this month, try and stay warm and we will see you next month.
-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]
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Plaintiff was assigned to remove demolition debris and, with a coworker, maneuvered a four-wheeled “mini container” of debris down a ramp spanning a two-foot height differential between two buildings. When the coworker lost control of the cart, Plaintiff tripped over it and fell off the ramp into an adjacent excavated trench; the ramp lacked guardrails.
Plaintiff moved for summary judgment on his Labor Law § 240(1) and Labor Law § 241(6) claims. The court granted Plaintiff’s summary judgment motion on Labor Law § 240(1) and granted Plaintiff’s summary judgment motion on Labor Law § 241(6) insofar as predicated on Industrial Code (12 NYCRR) §§ 23-1.7(b)(1)(i) and 23-1.22(b)(3).
 Labor Law § 240(1) (JLD)
The Court granted Plaintiff partial summary judgment on his Labor Law § 240(1) claim, finding that the ramp he was using created a significant height differential. The Court further determined that the ramp was a safety device and lacked the necessary safeguards.
PRACTICE POINT: A ramp may constitute a safety device for the purposes of Labor Law § 240(1).
 Labor Law § 241(6) (TJE)
In light of its determination on the Labor Law § 240(1) issue, the Court found Plaintiff’s Labor Law § 241(6) claim academic.
Plaintiff was injured while assisting a consulting engineer during an inspection of exterior façade remediation work on a building owned by The Hearst Corporation, after Plaintiffs’ employer had already completed the remediation work. Plaintiff and the engineer used a building maintenance unit (a motorized scaffold) to ascend the building, and when it reached the 18th floor the primary braking system failed, it descended under the secondary braking system, and it struck a skylight, allegedly causing injury.
Plaintiff moved for summary judgment on their Labor Law § 240(1) claim, and the court denied Plaintiffs’ summary judgment motion.
Labor Law § 240(1) (JLD)
The Court dismissed the Labor Law § 240(1) cause of action, concluding that Plaintiff was not engaged in covered work. Plaintiff was an ironworker’s foreman and was present at the site to answer questions while the consulting engineer inspected the façade work.
PRACTICE POINT: To prevail on a motion for summary judgment under § 240(1), plaintiff must be engaged in the manner of work that the statute was intending to cover.
Plaintiff was descending a staircase at a project involving marble stairs that had been covered with “Corex,” described as a white protective material placed on the stairs. As Plaintiff stepped onto the bottom stair, the Corex collapsed because the bottom stair was actually missing, and Plaintiff’s foot descended into an unprotected hole “8—12 inches deep below his knee.”
The Trial Court granted Plaintiff’s summary judgment motion for partial summary judgment on his Labor Law § 240(1) claim.
Labor Law § 240(1) (JLD)
The Appellate Division affirmed the Order granting plaintiff’s motion for summary judgment. Plaintiff established he was entitled to summary judgment on his § 240(1) claim through his deposition testimony and photographs of the scene, which showed the bottom step was missing, and there was nothing under the Corex. Defendant’s did not point to any admissible evidence to indicate that plaintiff as the sole proximate cause of his injury and failed to rebut Plaintiff’s prima facie case on summary judgment.
PRACTICE POINT: Even if there are facts of issue as to whether plaintiff is comparatively negligent, this is not a defense to Labor Law § 240(1) action.
Plaintiff was part of a team excavating and performing plumbing work in a trench at a Bronx construction project to connect water service from the street to a building. While Plaintiff was bent over in a six-foot-deep excavation inspecting a tunnel near the bottom, a 400-pound pipe fell and struck his back.
The Trial Court denied Plaintiff’s summary judgment motion on his Labor Law § 240(1) and § 241(6) claims and granted the City of New York and the Department of Transportation of the City of New York to dismiss Plaintiff’s complaint and all cross-claims against them.
Labor Law § 240(1) (JLD)
The Appellate Division held that the trial court should have denied the City’s motion for summary judgment as it failed to establish prima facie that it was not liable for plaintiff’s injury. There were issues of fact sufficient to create a nexus between the plaintiff and the City so as to support liability under Labor Law § 240(1). The Appellate Division further held that the trial court should have granted plaintiff’s motion for summary judgment on § 240(1) as to Themel and Village Cleaning, finding that a pipe fell and struck him when his coworkers accidentally dropped it, and height differential of six feet was not de minimus. Plaintiff’s testimony was sufficiently clear to sustain his burden, as plaintiff was not required to show the exact circumstances under which the pipe fell to establish liability under § 240(1).
PRACTICE POINT: A Plaintiff does not have to establish the exact circumstances of how they were injured to establish liability. A plaintiff’s testimony can be sufficiently clear establish his prima facie case.
Labor Law § 241(6) (TJE)
In light of its determination on the Labor Law § 240(1) issue, the Court found Plaintiff’s Labor Law § 241(6) claim against Themel and Village Cleaning academic.
The Appellate Court also affirmed the trial court’s dismissal of Plaintiff’s Labor Law § 241(6) claim against the City of New York on an alternative ground, finding Industrial Code § 23-21(a)(2) "does not apply to material and equipment that is not being stored."
Plaintiff was performing painting work from a scaffold that lacked guardrails and stepped backward off the scaffold resulting in his injuries.
The Trial Court granted Plaintiff’s summary judgment motion for partial summary judgment on his Labor Law § 240(1) claim and his Labor Law § 241(6) claim. The Trial Court also granted the Landlord defendants summary judgment motion for contractual and common-law indemnification and breach of contract against ASK Standard Transit Corp. d/b/a Bike Rental Central Park, who was Plaintiff’s employer.
Labor Law § 240(1) (JLD)
The Appellate Court held that Plaintiff met his prima facie burden of establishing that defendants violated Labor Law § 240(1) and the violation proximately caused plaintiff’s injuries. The evidence showed that the scaffold provided for plaintiff’s painting work lacked guardrails and no other protective device was provided.
PRACTICE POINT: To prevail on a fall from a height claim under § 240(1), a plaintiff must show that the scaffold provided lacked guardrails and no other adequate safety devices were provided.
Labor Law § 241(6) (TJE)
In light of its determination on the Labor Law § 240(1) issue, the Court found Plaintiff’s Labor Law § 241(6) claim academic.
 Indemnity Issues in Labor Law (AMC)
The Appellate Court affirmed the lower court’s ruling ranging summary judgment on the Landlord’s crossclaims for contractual and common-law indemnification and breach of contract against plaintiff’s employer. The lease required the employer to maintain $3 million in comprehensive general liability insurance. The employer failed to meet that obligation by obtaining a policy with lower limits and exclusions that eliminated coverage for employees and contractors. The only other policy in place covered workers’ compensation and limited employers’ liability claims involving grave injuries, and it did not provide indemnity coverage because no grave injury was sustained. The Court determined that the insurance obtained did not comply with the lease requirements, created a gap in coverage, and caused damages to the Landlords.
Plaintiff was assembling small pieces of pipe on the first floor and carrying the assembled pieces up an interior staircase to the second floor, which was the only access between the two floors. As Plaintiff came back down, he slipped on a piece of gray tube on the staircase and fell down the stairs. Plaintiff also described additional debris on the staircase such as wood, metal, sheetrock, and blocks.
The Trial Court granted Plaintiff’s summary judgment motion for partial summary judgment on his Labor Law § 240(1) claim and denied defendants’ cross-motion for summary judgment dismissing Plaintiff’s Labor Law § 240(1) claim.
Labor Law § 240(1) (JLD)
The Appellate Division affirmed the trial court’s decision granting Plaintiff’s motion for summary judgment on § 240(1), finding that while not every fall down a staircase is a § 240(1) violation, under the facts of this case it is. The staircase was an elevated surface on which plaintiff was required to work, and also the sole means of access to his work area, thus constituting an enumerated safety device, and a elevated work platform. The Appellate Division held that defendant’s failure to provide plaintiff with a safety device that was properly placed and operated to protect plaintiff from an elevation-related risk was a violation of § 240(1) and a proximate cause of plaintiff’s alleged injuries.
PRACTICE POINT: When a staircase is the only means to a workspace it can constitute an enumerated safety device.
Plaintiff’s accident occurred while he was using an extension ladder that linked two floor levels as a means of access between levels. Plaintiff testified that he fell when the ladder moved under him, while incident reports attributed the fall to Plaintiff having faced away from the ladder while simultaneously slipping and falling.
The Trial Court denied the summary judgment motion of the owner and general contractor seeking unconditional contractual indemnification from Plaintiff’s employer, and dismissal of Plaintiff’s Labor Law § 241(6) claim.
Labor Law § 241(6) (TJE)
Plaintiff’s deposition testimony raised triable issues of whether the ladder was not sound and operable, in violation of 12 NYCRR 23-1.5(c)(3). The Court also found that 12 NYCRR 23-1.7(f) was applicable as the ladder was being used as a means of access between different working levels and found a triable issue of fact as to whether stairways, ramps, or runways had been fully constructed to allow workers to access the floor levels. The Court also found a potential violation of 12 NYCRR 23-1.21(b)(4)(i), as the portable ladder was used as a regular means of access between floors and required securing or fastening in place.
The Appellate Court rejected application of regulations 12 NYCRR 23-1.7(d) and (e), finding that the ladder did not constitute a floor, passageway, walkway, scaffold, platform, or other elevated working surface as contemplated in those provisions.
Indemnity Issues in Labor Law (AMC)
The Appellate Court affirmed the lower court’s decision granting the summary judgment motions of Amsterdam and Pavarini seeking contractual indemnification from plaintiff’s employer, ECDNY. The Appellate Court noted that the subcontract’s broad indemnification provision covered all liability arising from ECDNY’s work, and plaintiff’s injuries occurred in the course of that work. Because ECDNY controlled the means and methods of the work and supplied the necessary equipment, ECDNY was obligated to indemnify the property owner and general contractor, at least on a conditional basis.
The Appellate Court went further, however, holding that Amsterdam and Pavarini established, as a matter of law, that they were not actively negligent in causing the plaintiff’s accident, entitling them to unconditional contractual indemnification from ECDNY. The Appellate Court reasoned that the plaintiff’s voluntary discontinuance of his Labor Law § 200 and common-law negligence claims confirmed the absence of active negligence and found that ECDNY failed to raise any triable issue as to Pavarini’s conduct. Because the work was controlled exclusively by plaintiff’s employer and Pavarini’s role was limited to general oversight, the Appellate Court concluded that Pavarini could not be held liable. As such, the Court noted that the plaintiff’s Labor Law § 241(6) claims against Pavarini should also have been dismissed.
Plaintiff fell from a ladder when it suddenly shifted. The trial court granted Plaintiff’s summary judgment motion for partial summary judgment on liability on his Labor Law § 240(1) claim.
Labor Law § 240(1) (JLD)
The Appellate Division affirmed the trial court’s order granting plaintiff’s motion for summary judgment, finding that plaintiff’s prima facie entitlement was established through his deposition testimony. In opposition, defendants failed to raise an issue of fact, as nothing in plaintiff’s medical records or the inadmissible ambulance report were inconsistent with plaintiff’s description of the accident.
PRACTICE POINT: The fact that an accident description is incomplete does not render it inconsistent and will not defeat a plaintiff’s motion for summary judgment on Labor Law § 240(1)
Plaintiff testified that he fell from a ladder after it shifted. An accident report was submitted stating Plaintiff said he missed a step on the ladder.
The trial court granted Plaintiff’s summary judgment motion for partial summary judgment on liability on his Labor Law § 240(1) claim and denied defendants’ summary judgment motions to dismiss his claim.
The trial court also denied defendants/third-party plaintiffs’ summary judgment motion on their third-party contractual indemnification claim, and granted third-party defendant J&L Electrical & Communication Group, Inc.’s summary judgment motion dismissing the third-party complaint.
Labor Law § 240(1) (JLD)
The Appellate Division affirmed the trial court’s order granting plaintiff’s motion for summary judgment on his Labor Law § 240(1) cause of action, finding that Plaintiff’s testimony that the ladder he was working on shifted and caused him to fall did not contradict the accident report containing plaintiff’s statement that he missed a step on the ladder and there was no testimony that refuted plaintiff’s description of the accident. The court held that Defendant’s argument that plaintiff as the sole proximate cause of the accident was unavailing.
PRACTICE POINT: Potential comparative negligence of the plaintiff is not a defense to a § 240(1) claim and is not sufficient for a sole proximate cause defense.
Indemnity Issues in Labor Law (AMC)
The Appellate Court held that the lower correctly determined that J&L’s contract with nonparty, Automated, did not provide indemnification in favor of the defendants. The contract identified a different entity as the owner and did not name the defendants as potential indemnitees. The Court reasoned that because the contract did not clearly express an intent to indemnify the defendants, they were not entitled to contractual indemnification from J&L. Additionally, the Court held that the contract’s incorporation clause did not extend to indemnification provisions contained in separate contracts executed by the construction manager with other subcontractors. Thus, the Appellate Court affirmed the lower court’s denial of the defendants/third-party plaintiffs’ motion for summary judgment on their third-party contractual indemnification claim and the granting of the third-party defendant's motion for summary judgment dismissal of the third-party complaint.
Plaintiff testified that he was instructed to hand rebar to coworkers for installation and that, to sort through loose rebar, he stood on top of a worktable. He claimed he was injured when the rebar shifted under his foot, causing him to lose his balance and fall to the floor. Defendants offered testimony which contradicted Plaintiff’s claims he was required to perform his work at elevation.
The trial court denied defendants and Plaintiff’s summary judgment motion on the Labor Law § 240(1) claim.
Labor Law § 240(1) (JLD)
The Appellate Division confirmed that denial of all summary judgment motions on Labor Law § 240(1) was appropriate because issues of fact remained as to whether plaintiff’s work required him to work at an elevation, such that Labor Law § 240(1) applied.
PRACTICE POINT: When both parties move for summary judgment and neither party is able to eliminate all issues of fact, both motions will be denied.
Plaintiff, an employee of a nonparty delivery service engaged by Rad Source Technologies, Inc., arrived at Lenox Hill Hospital to deliver a blood irradiator machine. After the loading dock supervisor advised that the truck was too tall for the loading dock and suggested using a side door, Plaintiff and two helpers began unloading the machine; it rolled toward Plaintiff, trapped his leg, and caused him to fall backward off the truck.
The trial court denied Lenox Hill Hospital’s motion for summary judgment seeking dismissal of Plaintiff’s Labor Law § 240(1), § 200 and common-law negligence claims and granted Plaintiff summary judgment on his Labor Law § 240(1) claim.
Labor Law § 240(1) (JLD)
The Appellate Division reversed the trial court as to defendant Lennox Hill, finding that plaintiff was not a covered worker engaged in a protected activity under Labor Law § 240(1). Although electrical work had previously been performed in the hospital to accommodate the machine, that work was finished, and plaintiff and his employer were not involved in that work and was not “necessary and incidental” to protected activity”
PRACTICE POINT: To present a prima facie case for summary judgment under Labor Law § 240(1), a plaintiff must first establish that they are a covered worker engaged in a protected activity under the statute.
 Labor Law § 200 and Common-Law Negligence (MRV)
In dismissing Plaintiff’s complaint against Lenox Hill, the Appellate Division found that Lenox Hill did not supervise or control the means and methods of Plaintiff’s work to impose liability under Labor Law § 200 because the loading dock supervisor’s actions did not constitute supervision. Lenox Hill had no authority to supervise Plaintiff and had no relationship with Plaintiff’s employer.
Indemnity Issues in Labor Law (AMC)
Although rendered academic by the dismissal of the plaintiff’s Complaint, the Appellate Court noted that the lower court should have also dismissed the third-party complaint as, even assuming the plaintiff’s employer, Rad Source, was negligent, the employer was an independent contractor. Thus, Rad Source could not be held liable for its negligence. The Court rejected Lennox Hill’s contention that the plaintiff’s activity was inherently dangerous and therefore was an exception to the independent contractor rule, noting that there is no authority providing that working as a delivery driver is an inherently dangerous activity.
Plaintiff was performing asbestos remediation work on the rooftop of a warehouse owned by CityMeals-On-Wheels Property, LLC. A polyurethane sheeting barrier had been erected along a parapet wall at the roof’s perimeter, and a strong gust of wind toppled the barrier, causing components including a “50-pound metal paraclamp” and vertical wooden supports to strike the back of Plaintiff’s head and neck and render him unconscious.
The trial court granted Plaintiff’s summary judgment motion on his Labor Law § 240(1) claim and granted dismissal of the third-party claim against Incinia Contracting Inc.
Labor Law § 240(1) (JLD)
The Appellate Division affirmed the trial court’s ruling, concluding that the sheeting barrier presented a gravity-related hazard. The evidence presented by plaintiff showed that the barrier materials fell more than nine feet and that strong wind enhanced the gravitational force. The court concluded that Labor Law § 240(1) requires adequate safety devices to secure the sheeting barrier in place to protect plaintiff against the foreseeable risk that windy conditions could cause the barrier to fall.
PRACTICE POINT: To defeat a motion for summary judgment on § 240(1) where a plaintiff is injured by a gravity-related hazard, a defendant must raise a triable issue of fact as to whether the safety device was adequately secured.
Indemnity Issues in Labor Law (AMC)
The Appellate Court modified the order to deny Incinia’s cross-motion for summary judgment dismissing the third-party breach of contract claim for failure to procure insurance. Because Incinia’s insurer denied additional insured coverage and Incinia had a pending declaratory judgment action against the insurer, it was not yet determinable whether Incinia satisfied its contractual obligation to procure coverage for CityMeals and Hollister. The Appellate Court reasoned that as the insurer was not a party to the action, any coverage determination must await resolution of the separate declaratory judgment action, rendering dismissal of the third-party claim premature. The Appellate Court further noted that Incinia’s policy exclusions and additional insured endorsement provisions did not conclusively establish compliance with its insurance procurement obligations.
Plaintiff was performing asbestos removal work at the premises. While he was attempting to descend from the roof area where he was working, Plaintiff traversed narrow metal beams that were normally covered by plywood but had been removed. Plaintiff slipped and fell through the sheet rock into the bathroom below, and averred that no other protective devices were provided to protect him from falling.
The trial Court granted Plaintiff’s cross-motion for partial summary judgment on his Labor Law § 240(1) claim against 1314 Development LLC (owner) and CB Developers d/b/a CB Developers, LLC (agent), but denied Plaintiff summary judgment against CBJ Management LLC and C & B Developers LLC.
Labor Law § 240(1) (JLD)
The Appellate Division held that summary judgment was properly granted to plaintiff as plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk from a significant elevation differential. The Court opined that defendants failure to proffer evidence of a triable issue of fact. The affidavit offered by defendant owner failed to create an issue of fact as it did not state that he was present on the date of the accident and mischaracterized plaintiff’s factual averments.
PRACTICE POINT: A Plaintiff will be successful in seeking summary judgment on § 240(1) if defendant’s affidavit proffered to raise a triable issue of fact offers no personal knowledge of the circumstances surrounding plaintiff’s work or identifies any factual issues about nature of plaintiff’s accident.
Plaintiff testified he was standing about 10 feet above the floor on previously installed rebar when the rebar “shifted or wobbled” as coworkers above handed him additional rebar to install. When the rebar shifted, Plaintiff dropped a piece of rebar he was holding and allegedly injured his shoulder when he grabbed it in an attempt to prevent it from falling further.
The trial court denied Plaintiff’s motion for summary judgment on liability pursuant to Labor Law § 240(1) and dismissed Plaintiff’s complaint.
Labor Law § 240(1) (JLD)
The Appellate Division reversed the trial court’s ruling, finding that the trial court should have granted plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim. Liability under the statute may be imposed where a plaintiff can establish that their injury was caused by an attempt to catch something or prevent something from falling. Defendants also failed to establish that the rebar Plaintiff was standing on was stable and safe for Plaintiff to be working on at an elevated height.
PRACTICE POINT: A plaintiff will be successful in seeking summary judgment on § 240(1) when he can establish that his injury was caused in an attempt to catch something or prevent something from falling further.
Plaintiff, a helper employed by nonparty Team Electric, was instructed to hold the base of a closed, 12-rung A-frame ladder that was leaned against a wall so a coworker could stand on it to install electrical cables up to the ceiling. While the coworker was on the ladder “several rungs from the top,” the coworker dropped an electric drill, which struck Plaintiff’s wrist; Plaintiff was injured and fell to the ground.
The trial court denied Plaintiff’s summary judgment motion on liability for his Labor Law § 240(1) and § 200 claims. The trial court also dismissed Plaintiff’s Labor Law § 241(6) claim to the extent it was predicated on Industrial Code provisions not raised in Plaintiff’s legal arguments and denied Plaintiff’s request to dismiss defendants’ affirmative defenses asserting comparative fault.
Labor Law § 240(1) (JLD)
The Appellate Division determined that plaintiff’s summary judgment motion as to Labor Law § 240(1) should have been granted as uncontradicted testimony from a safety expert established that a co-worker’s elevated work atop the ladder warranted overhead protection or tethering of the tools to safeguard others from falling objects. The Appellate Division concluded that defendants failed to raise a triable issue of fact as to whether adequate safety devices were provided and rejected defendant’s argument that § 240(1) does not apply because the co-worker was descending the ladder—the analysis of plaintiff’s activity is not to be limited to the moment of his injury, but to be evaluated in the general context of his work.
PRACTICE POINT: A plaintiff will be successful in seeking summary judgment on § 240(1) when he or she can establish that defendants failed to provide adequate safety devices to protect plaintiff from failing objects that are required to be secured.
Labor Law § 241(6) (TJE)
In light of its determination on the Labor Law § 240(1) issue, the Court found Plaintiff’s Labor Law § 241(6) claim academic.
Labor Law § 200 and Common-Law Negligence (MRV)
In light of its determination on the Labor Law § 240(1) issue, the Court found Plaintiff’s Labor Law § 200 claim academic.
Plaintiff was working at the bottom of an excavation pit and used a 20-foot, permanently affixed ladder to reach the bottom of the pit. Soil and gravel fell onto Plaintiff from an excavator’s bucket above him, and Plaintiff fell off the ladder.
The trial court denied Plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim.
Labor Law § 240(1) (JLD)
The Appellate Division concluded that the lower court should have granted claimant’s partial summary judgment on its Labor Law § 240(1) claim, finding that the ladder was a safety device within the meaning of the statute. The ladder was inadequate to shield the claimant from the harm flowing from the force gravity, specifically the soil and gravel which fell on him, and the injuries he sustained when he fell off the ladder. Defendants failed to raise a triable issue of fact, as their claim that defendant may have been injured in an area he was not supposed to be amounts to comparative negligence, which is not a defense to § 240(1)
PRACTICE POINT: Potential comparative negligence of the plaintiff is not a defense to a § 240(1) claim and is not sufficient for a sole proximate cause defense.
Labor Law § 241(6) (TJE)
In light of its determination on the Labor Law § 240(1) issue, the Court found Plaintiff’s Labor Law § 241(6) claim academic.
Plaintiff was assigned to work at an outdoor roof setback on the 20th floor of a building. While walking to the work area, Plaintiff tripped and fell after stepping into an uncovered drainage hole located in the roof setback.
The trial court denied defendants’ summary judgment motions seeking dismissal of Plaintiff’s Labor Law § 200 and § 241(6) claims, and granted Plaintiff’s summary judgment motion on his Labor Law § 200 claim, and Labor Law § 241(6) claim due to violation of 12 NYCRR § 23-1.7(e)(1).
Labor Law § 241(6) (TJE)
The Appellate Court reversed the trial court and found that since the accident occurred outdoors, it did not take place in a “passageway” within the meaning of 12 NYCRR § 23-1.7(e)(1). Plaintiff abandoned all other provisions in his Labor Law § 241(6) claim as he failed to address them in his opposition to defendants’ motion.
Labor Law § 200 and Common-Law Negligence (MRV)
The Appellate Division held that the trial court properly denied Defendants’ motion for summary judgment seeking dismissal of Plaintiff’s § 200 claim because the accident arose from a dangerous condition on the premises so Plaintiff did not have to show that the owner or general contractor actually exercised supervisory control over Plaintiff’s work. The trial court also properly granted Plaintiff’s cross-motion for partial summary judgment on the § 200 claim because Plaintiff offered sufficient evidence that Defendants had actual or constructive notice of the uncovered drainage hole.
Plaintiff was injured when he fell about nine feet while trying to nail a three-by-four into a beam to level plywood before cement was poured. Plaintiff testified the three-by-four shifted, causing the fall, and that although he wore a harness with a self-retracting lifeline, the lifeline extended 15 to 20 feet and did not stop his fall to the concrete floor below.
The trial court granted Plaintiff’s motion for summary judgment on his Labor Law § 240(1) cause of action, and his Labor Law § 241(6) claim predicated on 12 NYCRR 23-1.16(b) and denied defendants’ cross-motion seeking dismissal of those claims.
Labor Law § 240(1) (JLD)
The Apellate Division affirmed the trial court’s order granting plaintiff’s motion for summary judgment, finding that plaintiff demonstrated a prima facie case that he was engaged in work covered by the statute and not provided with adequate safety devices to prevent him from falling. Defendants failed to raise a triable issue of fact that defendant was not the sole proximate cause of the accident.
PRACTICE POINT: Defendants will not defeat a motion for summary judgment if they are unable to establish that plaintiff was the sole proximate cause for the accident.
Labor Law § 241(6) (TJE)
The Appellate Court found 12 NYCRR 23-1.16(b) requires the safety device at issue to be so arranged as to prevent falls beyond five feet. Plaintiff testified he fell 15 to 20 feet, and defendants failed to raise a triable issue of fact. As a result, the Appellate Court affirmed the trial court’s decision.
Plaintiff, a Westchester County parks department employee, was injured at Kensico Dam Plaza while cutting down a tree from the elevated bucket of a bucket truck, when a portion of the tree he had just cut struck him. The tree work occurred around the time county employees were setting up a holiday light show at the plaza that served as a fundraiser for Westchester Parks Foundation, Inc.
The trial court denied Weschester Park Foundation, Inc.’s motion for summary judgment seeking dismissal of Plaintiff’s claim, as well as Plaintiff’s cross-motion for summary judgment on Labor Law § 240(1) liability.
Labor Law § 240(1) (JLD)
The Appellate Division held that tree cutting and removal constituted routine maintenance outside of a construction or renovation and thus, was not covered activity under Labor Law § 240(1).
PRACTICE POINT: To survive a summary judgment motion under § 240(1) for an injury sustained while tree cutting, a plaintiff must show that the tree cutting was done in the course of a construction or renovation.
Plaintiffs, as co-administrators of the decedent’s estate, alleged the decedent was working on a construction project at property owned by Marty Litt when he was struck in the head by a falling beam weighing about 1,000 pounds and was pronounced dead at the scene.
Litt moved for summary judgment under the theory he was entitled to the homeowner’s exemption under the Labor Law and did not supervise or control the method or manner of Plaintiff’s work. The trial court granted Litt’s motion and dismissed Plaintiff’s claim against him.
Labor Law § 200 and Common-Law Negligence (MRV)
The Appellate Division held that the lower court should have denied Litt’s motion seeking dismissal of Plaintiff’s § 200 and common-law negligence claims because Litt failed to make a prima facie showing of his entitlement to judgment as a matter of law. If a Defendant moving for summary judgment cannot establish that the subject accident only falls into one of the two broad categories of § 200 cases, the moving Defendant can only prevail on summary judgment when the evidence exonerates Defendant as a matter of law as to either § 200 category. Here, Litt failed to establish that this was solely a means and methods case. Litt also failed to eliminate triable issues of fact as to whether he caused, created, or had actual or constructive notice of the alleged dangerous conditions, or whether he directed or controlled the method and manner in which decedent performed the injury-causing work.
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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
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Brian F. Mark
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Elizabeth K. Ognenovski
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Bradon S. Carlson
[email protected]
Joseph P. Mendoza
[email protected]
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