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Volume XV, No. 4
Wednesday, March 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.
20 cases this month, that is a lot, so we are keeping the intro short. Our goal is to keep this short so you can get through it quickly and gain a little knowledge, that will lurk in the recesses of your brain and emerge just when you need it most.
We are starting with the Avoid Act again. The Governor has signed the Chapter Amendments and most importantly the act only applies to cases commenced after April 16, 2026 and not, as originally enacted, to both pending and cases commenced after the effective date of the act. In addition, the time limit to commence a third-party action is now, in all instances, 90 days. After 90 days the third-party action can only be commenced by order of the court.
For cases against an employer, the time limit is 90 days from either when the employer’s identity becomes known, or when the defendant or defendants knew or should have known that the plaintiff sustained a Grave Injury. After 90 days, the third-party action can only be commenced by order of the court.
Our Case of the Month this month will be a 30 minute webinar hosted by Jessica Deren and myself addressing the “good cause” element of the Sole Proximate Cause defense using the Roque v 240 Lincoln Place LLC decision from the First Department. Please join us. We intentionally keep these webinars short and on a precise and limited topic. To register click here.
I am experimenting with AI to create our photo this month and here is what I came up with. The worker you see hanging from the gutter was hired by a construction company to build a house, on spec, for a builder. As he was doing this the neighbor called over and said that her roof was leaking and asked if could they help her. Looking at the roof from a distance they could see that a tree branch had fallen and made a small hole in the roof. As they had extra shingles right there, and because the worker, hereinafter referred to as the plaintiff, was a nice guy, he took his ladder over and climbed up fix the leak for her when the ladder suddenly shifted for no apparent reason. The plaintiff had looked carefully at the ladder that morning before he used if for the first time and it was in great condition. He set the ladder on a flat concrete surface to climb it and has no idea why or how the ladder moved causing him to fall. § 240(1) case?
So, we always start at the same place, the property owner of a commercial property is always a valid defendant, so we have a valid defendant. The task the plaintiff was undertaking was repair, so the protection of the statute was invoked. The injury was due to a height differential and the effects of gravity. The plaintiff was employed at the time he was on the ladder but you will recall that he was employed to work on the house under construction, not on the neighbor’s house. As the task which caused the injury had nothing to do with the job he was employed to do he was not within the protection on the statute, thus summary judgment for the plaintiff.
That’s it for this month, lots of cases this month for your reading pleasure. As always, please feel free to reach out with any questions Labor Law or risk transfer related and we will see you next month.
As always, thanks for subscribing.
-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.
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Plaintiff, a carpenter for Capital Concrete NY, Inc. (Capital), was injured when a concrete form came off the wall and fell on top of him from a height of approximately 15 feet. The Supreme Court granted plaintiff's motion for summary judgment on liability on his Labor Law § 240(1) cause of action, denied third-party defendant Capital’s, cross-motion for summary judgment dismissing plaintiff's Labor Law § 241(6) cause of action insofar as predicated on Industrial Code (12 NYCRR) § 23-2.1(a)(2), and denied defendants Marcal and AW Pelham, LP's motion for summary judgment dismissing the common-law negligence and Labor Law § 200 causes of action as against Marcal and for judgment in their favor on their cause of action for contractual indemnification against Capital.
 Labor Law § 240(1) (MRV)
The First Department held that the lower court properly concluded that plaintiff established prima facie entitlement to summary judgment on his Labor Law § 240(1) claim based on his unrebutted testimony that a concrete form came off the wall and fell on him from a height of about 15 feet. Plaintiff’s testimony established an elevation-related safety device failed or that no safety device was placed so as to provide him with adequate protection. Defendants failed to raise a question of fact in opposition. Defendants’ sole proximate cause defense based on plaintiff’s prior medical treatment for dizziness or his purported recalcitrance in using a ladder failed because the record established that defendants’ statutory violation was a proximate cause of plaintiff’s injury.
PRACTICE POINT: A sole proximate cause defense will fail when there is unrebutted testimony in the records that an elevation-related safety device failed or no such device was provided for adequate protection because the plaintiff will be able to establish that a statutory violation was a proximate cause of plaintiff’s injury and, therefore, plaintiff cannot be the sole proximate cause.
 Labor Law § 241(6) (TJE)
In light of their determination on Plaintiff’s Labor Law § 240(1) claim, Plaintiff’s Labor Law § 241(6) claims were found to be academic.
 Labor Law § 200 and Common-Law Negligence (JLD)
The Court held that the trial court should have dismissed §200 and common law negligence claims against Marcal, the general contractor, finding that Marcal’s general responsibility for site safety fell short of the control necessary to impose liability. The worker received instructions from his foreman, had no substantive conversation’s with Marcal employees, did not hold the safety meetings, or otherwise direct the means and methods of any subcontractor’s work.
 Indemnity Issues in Labor Law (AMC)
The Apellate Division overturned the Trial Court’s decision denying Marcal’s and AW Pelham’s motion for contractual indemnification from Capital. The Appellate Division held that because Pelham and AW were not negligent at common law or Labor Law § 200 they were entitled to contractual indemnification from Capital. The Appellate Division also found Capital’s contention that Pelham and AW did not establish their freedom from negligence unpersuasive.
Plaintiff was injured when he tripped on metal debris at the foot of the ladder on which he was working. The Supreme Court granted plaintiff's cross-motion for summary judgment with respect to liability on his claim under Labor Law § 241(6), premised upon a violation of 12 NYCRR 23-1.7(e)(2).
Labor Law § 241(6) (TJE)
Plaintiff made a prima facie showing on his § 241(6) claim as 12 NYCRR 23-1.7(e)(2) requires work and passage areas to be kept free from debris and scattered materials, and Plaintiff demonstrated he tripped on metal debris at the ladder’s base. Defendants’ reliance on the “integral to the work” doctrine was insufficient to overcome Plaintiff’s prima facie case, as they failed to present evidence that the work could not have been performed if the debris had been removed, and preventable measures could have been employed. As a result, the appellate court upheld the trial court’s grant of summary judgment on Plaintiff’s § 241(6) claim.
Plaintiff was injured when the ladder he was using to paint a ceiling suddenly shifted to the right as he was descending from it, causing him to lose his balance and fall off the ladder to the left. Defendants claimed that plaintiff did not fall due to a wobbly ladder, but rather because he missed a step as he was climbing down. The Supreme Court granted plaintiff partial summary judgment on his claim pursuant to Labor Law § 240(1).
Labor Law § 240(1) (MRV)
The First Department held that plaintiff was entitled to summary judgment on his § 240(1) claim because he presented uncontroverted testimony that the ladder he was using suddenly shifted during his descent, causing him to fall. It is not relevant that the plaintiff may have inspected the ladder prior to using it and found no defects. Defendants argued that the ladder was adequate and plaintiff fell because he missed a step on the ladder while climbing down. Defendants cited to a page from plaintiff’s emergency room medical chart, which was uncertified, to support this argument. In support of the sole proximate cause defense, defendants argued plaintiff did not search out a safety device better suited to his task. However, there was no evidence in the records that a different safety device was available or that plaintiff knew he should use it. As a result, the First Department found that defendants failed to raise a question of fact.
PRACTICE POINT: Be sure that any evidence being used to create a question of fact in opposition to a dispositive motion is in admissible form so the Court can properly consider it. Here, the medical record was uncertified and did not qualify for the business record exception to hearsay because the cause of plaintiff’s injury was not germane to his diagnosis or treatment. Additionally, plaintiff was a non-English speaker and there was no indication that the record was accurately translated. Defendants should have rectified these issues in discovery to sufficiently oppose plaintiff’s motion.
Plaintiff was working in a crouched position when he was struck by several 250-pound, 9 feet tall doorframes with significant gravitational force as they toppled onto him from where they leaned unsecured against a wall. The Supreme Court granted plaintiff's motion for summary judgment on the Labor Law § 240(1) claim as against defendant , owner and GC, and denied the motion of third-party defendants Hoist/Crane for summary judgment dismissing all claims and cross-claims against them and on their cross-claim against second third-party defendant B&V Contracting Enterprises Inc. for common-law indemnification and/or contribution.
Labor Law § 240(1) (MRV)
The First Department held plaintiff was entitled to summary judgment on his Labor Law § 240(1) claims against the owner and general contract because he established that he was working in a crouched position when he was struck by unsecured doorframes. Plaintiff’s testimony was corroborated by an affidavit from a witness and photographs depicting the unsecured doorframes in other areas of the project. Defendants failed to raise a triable issue of fact in opposition.
PRACTICE POINT: A plaintiff is not obligated to demonstrate which safety device listed in Labor Law § 240(1) was required under the circumstances of his work and this argument is insufficient to defeat summary judgment. A plaintiff only needs to establish that the failure to secure a falling object was the proximate cause of his injuries to make a prima facie case under Labor Law § 240(1).
Indemnity Issues in Labor Law (AMC)
The Appellate Division upheld the Trial Court’s decision denying Hoist/Crane’s motion seeking common-law indemnification from B&V, but granted their motion seeking to deny all claims and crossclaims against them.
The Court found that there was no evidence that Hoist/Crane had anything to do with storing the doorframes at the worksite, and only speculation was offered in opposition to Hoist/Cranes’ motion. As the language of the indemnification provisions, at issue, obligate Hoist/Crane to indemnify the owner/GC for accidents that were their fault, said claims and crossclaims should have been dismissed. As to the branch of Hoist/Crane's motion for summary judgment dismissing owner/GC's claims for common-law indemnification and contribution, owner/GC have not addressed these arguments, and these claims are deemed abandoned.
Plaintiff an electrician, was injured at a construction site on September 11, 2019, when he fell from a 10-foot A-frame ladder as he was troubleshooting nonfunctioning ceiling lights. Defendants submitted the affidavit plaintiff's foreman, who stated that he noticed that electricity to the area where plaintiff had been working had not been turned off. He found exposed spliced wires inside the access panel and determined that plaintiff had been working with "live electric." The Supreme Court denied Plaintiff’s motion for summary judgment on his Labor Law § 240(1) cause of action.
Labor Law § 240(1) (MRV)
The First Department reversed and granted plaintiff’s motion for summary judgment on Labor Law § 240(1). Plaintiff submitted evidence that the ladder was an inadequate safety device because the ladder “moved, wobbled and shifted.” Photographs in the record established that the ladder had two bent and curved crossbeams and worn rubber feet. The corporate safety manager for the general contractor confirmed that the ladder was defective and stated he would have replaced the ladder if he observed it. Plaintiff’s expert opined that the ladder was inadequate and a Baker scaffold or scissor lift with railings would have prevented plaintiff’s fall. The Court found that defendants’ expert’s report was conclusory and speculative because the expert did not inspect the ladder and failed to address the bent crossbeams and worn rubber feet. Lastly, the Court found that evidence plaintiff was shocked by a live wire was insufficient to raise a question of fact because it did not establish plaintiff was propelled from the ladder by the electric shock.
PRACTICE POINT: When trying to support an argument that a plaintiff fell from a height due to an electric shock, the record must establish that the shock was strong enough to throw or propel plaintiff to the ground. In Nazario v. 222 Broadway, LLC, 28 NY3d 1054 (2016) the plaintiff was shocked while working on a wooden ladder and was thrown to the floor while still holding onto the ladder. The Court of Appeals determined there were questions of fact as to whether the ladder failed to provide proper protection and whether plaintiff should have been provided with an additional safety device. In Cutaia v. Board of Mgrs. Of the 160/170 Varick Street Condominium, 38 NY3d 1037 (2022), plaintiff was thrown from an A-frame ladder by an electrical shock, and the record did not contain any evidence the ladder was defective or moved prior to the shock.
Plaintiff was injured by a metal locking device, known as a "super plate" or "butterfly," when it allegedly fell from overhead and struck plaintiff on his right shoulder and neck as he walked past a 15' to 18' high formwork wall at a construction site. At the time of the accident, plaintiff was tying wired rebar for the formwork construction, and super plates were not involved with that part of the work. The Supreme Court granted plaintiff's motion for summary judgment on his Labor Law § 240(1) claim and denied defendants' motion to dismiss plaintiff's Labor Law § 241(6) claim predicated on 12 NYCRR §§ 23-1.7(a) and (a)(2).
Labor Law § 240(1) (MRV)
The First Department held the plaintiff established prima facie entitlement to summary judgment as a matter of law because plaintiff was struck by the falling super plate and there was no overhead protection for workers who walked beneath the elevated work platform. The defendants failed to raise a question of fact as to whether the super plate required securing for purposes of the undertaking. The defendants argued that there were no loose super plates in the vicinity of the formwork under construction when this accident happened, but the accident itself establishes that there was a loose super plate.
PRACTICE POINT: A plaintiff does not need to see how the object fell on him or precisely where it fell from to make a prima facie case under Labor Law § 240(1) because, regardless of how or where, the absence of a protective device is the proximate cause of plaintiff’s injury.
Labor Law § 241(6) (TJE)
In light of their determination on Plaintiff’s Labor Law § 240(1) claim, Plaintiff’s Labor Law § 241(6) claims were found to be academic.
Plaintiff was injured when a chisel fell and struck him while he was taking a designated coffee break at a construction project involving an exterior restoration of a five-story school. Plaintiff took his break either on or underneath the sidewalk bridge on the jobsite with two other coworkers. Plaintiff claims that the scaffolding above him had gaps in the planks and lacked sufficient netting and toeboards on the side closest to the building. The Supreme Court denied plaintiff's motion for summary judgment on the Labor Law § 240(1) claim, granted his motion for leave to amend his bill of particulars to allege violations of Industrial Code (12 NYCRR) §§ 23-1.15(c) and 23-5.1(j)(1), granted defendants' motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims, and denied their motion as to the Labor Law §§ 240(1) and 241(6) claims.
Labor Law § 240(1) (MRV)
The First Department held that the lower court should have granted plaintiff’s motion for summary judgment on Labor Law § 240(1) because the plaintiff established that the chisel required securing for purposes of the undertaking and the scaffolding proved inadequate to protect him. It is not relevant that the plaintiff did not know where the chisel fell from, what caused it to fall, or hear anything fall. Any alleged inconsistency regarding the location of the accident is immaterial.
PRACTICE POINT: Arguing that a plaintiff was on a work break at the time of the injury is not a valid defense to Labor Law § 240(1) because workers remain protected by the statute while on the work site during breaks.
Labor Law § 241(6) (TJE)
In light of their determination on Plaintiff’s Labor Law § 240(1) claim, Plaintiff’s Labor Law § 241(6) claims were found to be academic.
Labor Law § 200 and Common-Law Negligence (JLD)
In light of their determination on Plaintiff’s Labor Law § 240(1) claim, Plaintiff’s § 200 claim was found to be academic.
Plaintiff was an ironworker assigned to work on a project involving the construction of a building owned by defendant South Street Seaport Limited Partnership and managed by defendant Seaport Management Development Company. The latter retained Plaza as the construction manager for the project. Plaza retained the services of Ocean and assigned Ocean the task of fabricating and installing structural steel for the building. Ocean fabricated the steel but sub-contracted the installation to the plaintiff’s employer, third-party defendant Kenvil. Plaintiff was under the supervision of a foreman employed by Kenvil. At the time of his accident, the plaintiff claims that he and a co-worker had been working on the first floor of the building. They were tasked with removing the temporary bolts and replacing them with permanent bolts. Prior to the accident, the plaintiff had accessed the first-floor work area via an orange extension ladder installed at the front of the building. Plaintiff retrieved bolts needed from the ground floor and began traveling back to his work area using a blue extension ladder which had previously been resting upright against a concreate floor when the plaintiff found it and began using it. The plaintiff described the blue ladder as the top half of an extension ladder that had been separated from the bottom half. The half-portion of the blue extension ladder did not have any rubber feet on the bottom to prevent slippage and was not secured or tied-off in any manner that would prevent it from sliding or slipping on the concreate floor. As the plaintiff ascended the ladder, the ladder kicked or moved backwards causing the plaintiff to fall forward and hit his head against the concrete wall that the ladder was leaning against. The plaintiff claims that he fell to the ground and the ladder landed on his stomach. There were no witnesses to the accident. Following the accident, the plaintiff’s co-worker noticed the ladder that the plaintiff was using at the time of the accident upright, but clearly out of position, askew. The ladder was not tied off and was straight up against the concrete wall. He noticed that the ladder was wobbly and lacked any foundation or feet.
The Supreme Court denied plaintiff's motion for summary judgment on his Labor Law § 240(1) claim and denied the cross-motion of defendant Plaza Construction LLC for summary judgment dismissing plaintiff's common law and Labor Law § 200 claims against it and on its contractual indemnification claim against third-party defendant Kenvil United Corp.
Labor Law § 240(1) (MRV)
Plaintiff’s motion for summary judgment on Labor Law § 240(1) was properly denied because there were questions of fact as to whether plaintiff was the sole proximate cause of his accident. The record contained contradictory evidence as to whether plaintiff’s employer provided the subject ladder and plaintiff testified it is “common knowledge” that it is unsafe to use a separated extension ladder. Additionally, there was evidence in the record that there were other safe, readily available means of access to the worksite.
PRACTICE POINT: A sole proximate cause defense does not apply in cases where an employer provides a defective device for use on the job site. However, if the record contains contradictory evidence about who provided the device, that is sufficient to create a question of fact regarding sole proximate cause.
Labor Law § 200 and Common-Law Negligence (JLD)
The Court determined that defendants’ cross-motion under § 200 should have been granted, as defendants did not exercise any control over the means and methods such that it could have been held responsible for the accident.
Indemnity Issues in Labor Law (AMC)
The Appellate Division reversed the Trial Court’s decision and granted Plaza’s cross-motion for summary judgment seeking contractual indemnification from Kenvil. The Appellate Division found that Plaintiff’s accident arose out of the contract work, triggering the indemnity provision, and Plaza didn’t exercise any control over the means or methods of the work being performed at the time of the accident.
Plaintiff, a laborer on a construction project, climbed atop of an 8-foot by 14-foot dumpster, which measured approximately 4 to 4 ½ feet in height, to place a tarp over it and to secure the tarp on the dumpster's sides using wire. According to plaintiff while standing atop the dumpster and stretching the tarp out over the dumpster, a gust of wind caught the tarp, and plaintiff was propelled over the side of the dumpster.
The Supreme Court granted plaintiff's cross-motion for partial summary judgment on his Labor Law § 240(1) claim, denied the motion of defendants for summary judgment dismissing the Labor Law § 240(1) claim, and denied the defendants' motion for summary judgment on their contractual indemnification claim against the third-party defendant Flatiron.
Labor Law § 240(1) (MRV)
The lower court properly denied defendant’s motion for summary judgment on Labor Law § 240(1), but it should have also denied plaintiff’s cross-motion. Plaintiff did not establish as a matter of law that the task he was engaged in at the time of his accident involved an elevation-related hazard. Plaintiff testified that he had been directed to stand on top of the dumpster to cover it with the tarp and that other coworkers in the past had covered it this way. However, other workers from the site testified that the standard procedure involved multiple laborers working together at ground level to cover the dumpster. Therefore, there was a genuine dispute as to whether this task required work to be done at an elevated differential.
PRACTICE POINT: To make a prima facie showing under Labor Law § 240(1), a plaintiff must demonstrate that the injury-producing work involved an elevation-related hazard in the way the work was intended or supposed to be performed. If the record establishes that plaintiff’s work was typically performed at ground-level, then plaintiff would not be entitled to summary judgment because the work would not have created an elevation-related hazard if it were performed as intended.
Indemnity Issues in Labor Law (AMC)
The Appellate Division overturned the Trial Court’s decision and granted defendants conditional contractual indemnification against Flatiron. Defendants established a prima face entitled to conditional contractual indemnification in light of the agreement between them as Flatiron. The indemnification provision at issue provided that Flatiron would indemnify the owner and its affiliates from claims arising out of Flatiron’s actions or failure to act in connection with the agreement. The agreement provided that Flatiron would monitor the subcontractors, including related to safety on the jobsite.
Plaintiff was injured when the closed 12-foot A-frame ladder he was working on slipped out from under him while he was standing on it, causing him to fall and land on top of the ladder. The Supreme Court granted plaintiff's motion for summary judgment on liability on his Labor Law § 240(1) claim.
Labor Law § 240(1) (MRV)
The First Department held summary judgment was properly granted in favor of plaintiff on Labor Law § 240(1) because plaintiff presented undisputed evidence that the ladder he was working on slipped out from under him while he was standing on it, causing him to fall. Plaintiff testified he was unable to open the ladder because of its size and weight.
PRACTICE POINT: A plaintiff’s decision to use an A-frame ladder in the closed position is not sufficient to find him the sole proximate cause of his accident if he can provide a specific reason for using the ladder in that manner.
Plaintiff was injured as he was guiding a pallet of construction material being delivered to a work site. According to plaintiff, his coworker was moving the load using a pallet jack. As the coworker who was operating the jack began to move the pallet, the wooden part of the pallet broke, and the hydraulic machine got stuck on the edge of the truck that had delivered the material. Although the coworker managed to free the hydraulic machine, he lost control of the machine's lever, and the full load of the pallet fell on plaintiff's foot. The Supreme Court denied plaintiff's motion for summary judgment on his Labor Law § 240(1) claim and granted defendants' motion for summary judgment dismissing plaintiff's complaint.
Labor Law § 240(1) (MRV)
The lower court properly denied plaintiff’s motion for summary judgment on Labor Law § 240(1), but should have denied defendant’s motion as well. Defendants failed to eliminate issues of fact regarding whether the pallet jack was a sufficient safety device.
PRACTICE POINT: It is not sufficient to present evidence that a coworker released a lever which caused the object to fall and strike plaintiff. The evidence must address why the coworker released the lever. Failure to do so leaves open the possibility that the device was defective or inadequate and, therefore, does not eliminate all factual questions regarding the sufficiency of the safety device. It is important to flush out these issues in discovery prior to making any dispositive motion.
Labor Law § 241(6) (TJE)
The appellate court found triable issues of fact on Plaintiff’s § 241(6) claim, which was predicated on a violation of Industrial Code 12 NYCRR § 23-9.8(h). This provision required that loaded pallets be kept level at all times. Based on Plaintiff’s testimony, his coworker lost control of the lever on the hydraulic machine in an attempt to free the machine from the edge of the truck after the pallet broke. This testimony was not rebutted by defendants, and presents an issue of fact as to whether the broken pallet contributed to the accident by rendering the construction materials unlevel.
Plaintiff, who worked as a demolition laborer for Always First, testified that a pipe measuring around 8 inches wide and 10 feet long fell from the ceiling while he was working underneath it and injured him. The Supreme Court granted plaintiff's motion for summary judgment on his Labor Law § 240(1) claim as against defendants Marco Realty Associates, L.P., Old Navy, LLC, The Gap, Inc., and James Hunt Construction Co., Inc. (collectively, the building defendants); granted defendant/third-party defendant Always First, Inc.'s motion for summary judgment dismissing the building defendants' claim for common-law indemnification and contribution; and denied the building defendants' motion for summary judgment dismissing plaintiff's Labor Law §§ 200 and 240(1) and common-law negligence claims as against them and for judgment in their favor on their contractual indemnification claims as against Always First, Inc. and third-party defendant QCC Maintenance, Inc.
Labor Law § 240(1) (MRV)
The lower court properly concluded that plaintiff was entitled to summary judgment on his Labor Law § 240(1) claim based on plaintiff’s testimony that the pipe fell from the ceiling while plaintiff was working underneath it. The pipe was an object that required securing and plaintiff’s injury was a foreseeable consequence of performing the task without a safety device. Defendants failed to raise a material issue of fact in opposition.
PRACTICE POINT: If a plaintiff is able to establish that his work involved a load that required securing and his injury was the foreseeable consequence of the risk of performing that work without any of the safety devices listed in the statute, then he will be entitled to summary judgment on Labor Law § 240(1) if you are unable to raise a question of fact in opposition.
Labor Law § 200 and Common-Law Negligence (JLD)
The Court held that the trial court should have dismissed the Labor Law § 200 and common law negligence claims as against Marco Realty, Old Navy and The Gap because it was a means and methods case and Plaintiff did not dispute that those defendants did not control the injury-producing work. As to James Hunt, however, a question of fact remains as to whether they controlled the schedule of the trades, placing it in a position to avoid the unsafe condition of Plaintiff’s work.
Indemnity Issues in Labor Law (AMC)
The Appellate Division upheld the Trial Court’s decision and agreed that there are issues of fact as to James Hunt's (GC/sole indemnitee) negligence in coordinating the injury-producing work. As such the “building defendants’” (Marco, Old Nacy, Gap and James Hunt) motion for indemnification was properly denied as against Always First and QCC. However, if a jury determines that James Hunt is free of negligence, the indemnity agreement would be enforceable.
With regard to QCC, summary judgment on the contractual indemnification claim as against it was properly denied as factual issues remain as to whether plaintiff's claim arose out of QCC's work given the unresolved circumstances surrounding the identity of the worker who cut the pipe and whether the pipe was QCC's responsibility to remove.
Plaintiff was working as a laborer on a construction project, cleaning debris from the floor, when a floating ceiling that was installed as part of the project collapsed onto him, causing injuries. The floating ceiling was constructed by Anfield's carpenters, who were supposed to follow the plans and specifications prepared by defendant architectural firm. Post-accident inspection of the collapsed drop ceiling revealed that some of the steel rods supporting the drop ceiling were not embedded into the ceiling's concrete slab as required by the architectural plans, but rather, were affixed to non-structural sheetrock soffits. An expert engineer retained by Nucor, the general contractor, opined that the accident was caused by Anfield's failure to properly affix all the steel rod supports of the drop ceiling to the overhead concrete slab.
Defendants Sub 412/Realty owned the property. Defendant-third-party plaintiff, Estee and its subsidiary, Aramis, leased the sixth floor of the building and hired Nucor to renovate the space. Plaintiff was employed by third-party defendant Manhattan Fine Cleaners Inc., which Nucor hired to clean the worksite. Anfield directed and controlled the means and methods of the work involved in constructing the faulty drop ceiling at issue.
The Supreme Court granted plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim, denied the motion of defendants-appellants-respondents Sub 412, Realty (collectively, Sub 412/Realty) for summary judgment dismissing plaintiff's Labor Law § 240(1) claim against them, and granted defendant-third-party plaintiff- Nucor conditional contractual indemnification against third-party defendant Anfield and defendant-second third-party plaintiff Aramis, denied Nucor's motion for summary judgment on its third-party claim against Anfield for common law indemnification, denied Nucor summary judgment dismissing all cross claims and counterclaims against it for common-law indemnity and contribution, and denied Nucor summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims against it.
Labor Law § 240(1) (MRV)
The lower court properly granted plaintiff’s motion for summary judgment on Labor Law § 240(1) because plaintiff established that his injuries were caused by a falling object and a fall from an elevation due to inadequate safety devices. Defendants’ argument that the floating ceiling was a permanent structure was not persuasive to the Court.
PRACTICE POINT: Analyze your liability arguments early and tailor your discovery to support those arguments for summary judgment. Defendants in Fernandez could have presented a stronger argument that the floating ceiling was a permanent to support their motion had there been evidence that the floating ceiling underwent a final inspection to confirm its completion prior to plaintiff’s accident.
Labor Law § 200 and Common-Law Negligence (JLD)
The Court held that Defendant Nucor should have been granted summary judgment dismissing Plaintiff’s §200 and common law negligence claims as the evidence established that Anfield’s workers created the dangerous condition by the means and methods of their work when they failed to properly anchor the pencil rods of the suspended ceiling into the ceiling’s overhead concrete slab.
Indemnity Issues in Labor Law (AMC)
The Appellate Division granted Nucor full contractual indemnification against Anfield, and upheld the Trial Court’s decision denying Nucor’s motion for common law indemnification against Anfield, and denying Nucor’s motion for summary judgment dismissing all cross and counter claims against it for common law indemnification.
Because there was no evidence offered to raise a triable issue that Nucor negligently performed its general supervision and inspection responsibilities over Anfield's work, Nucor has demonstrated its entitlement to full contractual indemnification from Anfield. Nucor is also entitled to common-law indemnification from Anfield, since it has demonstrated its liability is vicarious, without any proof of any negligence or actual supervision on its own part. For similar reasons, Nucor is entitled to summary judgment dismissing all other cross claims and counterclaims against it for common-law indemnification and contribution.
Plaintiff was injured as he and his coworkers were making bases for cement columns by using a drilling/excavation machine to remove steel bars that had been drilled into the ground. Plaintiff testified that when removing the bars, a fabric sling was tied to the top of the bar, a hook was placed into the sling, and the drilling/excavation machine lifted the bar away. As the last bar was being removed, it fell and hit plaintiff. According to plaintiff's testimony, the bar was standing vertically on the drilling machine and was not secured before the machine moved it. The Supreme Court denied plaintiffs' motion for summary judgment on their Labor Law § 240(1) claim and granted defendants' motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims,
Labor Law § 240(1) (MRV)
The lower court should have granted plaintiffs’ motion for summary judgment on Labor Law § 240(1). Plaintiffs established that the steel bar was not secured while the excavation/drilling machine was hoisting it out of the ground. Defendants failed to raise a triable issue of fact in response.
PRACTICE POINT: When a plaintiff is able to demonstrate that the equipment used on a job failed to prevent an object from falling, plaintiff is not obligated to specify the type of safety device that should have been provided instead. These arguments are not sufficient to create a question of fact to defeat summary judgment.
Labor Law § 200 and Common-Law Negligence (JLD)
In light of their determination on Plaintiff’s Labor Law § 240(1) claim, Plaintiff’s § 200 claim was found to be academic.
Barbu v Doyle
February 4, 2026
Appellate Division, Second Department
The plaintiff was injured on March 29, 2017, when he fell from a pallet rack inside the warehouse portion of a building owned by the defendant Connan, and leased to the defendant Par 4. Par 4 was owned by the injured plaintiff's brother-in-law, the defendant Kenneth Doyle. The plaintiff testified at his deposition that, on the date of the accident, he went to the premises to retrieve personal items he stored at the warehouse, including tools and construction materials. He testified that he climbed on top of the pallet rack to look for his property, but he lost his balance and fell approximately 10 feet to the ground.
The Supreme Court (1) granted the motion of the defendant Connan Land Company, LLC, for summary judgment dismissing the amended complaint against it, (2) granted the motion of the defendants Kenneth Doyle and Par 4 Property Management, LLC, for summary judgment dismissing the amended complaint against them, and (3) denied the plaintiffs' cross-motion for summary judgment on the cause of action alleging a violation of Labor Law § 240(1) and for leave to amend the bill of particulars.
Labor Law § 240(1) (MRV)
The lower court properly granted the owner and Par 4 defendants’ motions for summary judgment dismissal of Plaintiff’s Labor Law § 240(1) claim and properly denied plaintiff’s motion for the same. Defendants established that plaintiff was not hired to perform work at the premises and was not acting as an employee when he went to retrieve his property from the warehouse. Plaintiffs failed to raise a triable issue of fact in opposition.
PRACTICE POINT: To have a valid claim under Labor Law § 240(1), a plaintiff must demonstrate that he was both permitted to work on a building or structure and that he was hired by someone to perform the work. Otherwise, a plaintiff is not part of the special class of workers Labor Law § 240(1) was designed to protect.
Labor Law § 241(6) (TJE)
Plaintiff did not move for summary judgment on his 241(6) claims, and therefore these claims were not addressed by the appellate court.
Labor Law § 200 and Common-Law Negligence (JLD)
The Court held that the Supreme Court properly granted summary judgment for the owner on its common law negligence claim, finding that the defendant established that the pallet rack was readily observable by those employing reasonable uses of their senses and was not inherently dangerous. There is no duty to warn against an open and obvious condition that is not inherently dangerous. The plaintiff testified at his deposition that he did not notice anything wrong with the pallet rack, and he had been at that facility on more than 20 occasions, was familiar with that warehouse, and with pallet racking systems, which he had installed.
Plaintiff was working as a laborer for Venture Solar, which had been hired to install solar panels on the rooftops of the subject premises. According to the plaintiff, he and certain of his coworkers were instructed to move a "moon cart" from one rooftop to an adjacent rooftop that was approximately two feet higher and separated by a gate. The workers jointly decided to move the cart by lifting it above their heads and passing it over the gate. As the plaintiff lifted one corner of the cart while he stood with his feet planted on the ground, the cart allegedly hit the plaintiff in the head and he fell. The Supreme Court granted the defendants' motion for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6).
Labor Law § 240(1) (MRV)
The lower court properly granted defendants’ motion for summary judgment dismissal of plaintiff’s Labor Law § 240(1) claim because defendants established that plaintiff’s alleged injuries were not caused by an elevation-related or gravity-related risk covered by the statute. Plaintiff failed to raise a triable issue of fact in opposition.
PRACTICE POINT: Nail down the specifics of plaintiff’s accident at plaintiff’s deposition. A plaintiff’s injuries are not caused by an elevation-related or gravity-related risk covered by Labor Law § 240(1) when he is standing with his feet planted on the ground and is struck while lifting an object above his head.
Labor Law § 241(6) (TJE)
Defendants were entitled to judgment as a matter of law on Plaintiff’s Labor Law § 241(6) claims, as Plaintiff failed to identify a specific and applicable provision of the Industrial Code in their Complaint and Bill of Particulars, or in opposition to Defendants’ motion for summary judgment.
The claimant was injured while mixing paint inside the back of a box truck when the truck began to move. The claimant alleged that she tried to exit through the back of the truck, but at the same time, a coworker began to raise the lift gate of the truck. The claimant alleged that she ran towards the back of the truck, lost her balance, fell, and caught her leg in the lift gate, causing injury. The Court of Claims granted the defendant's motion for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6) as was predicated on a violation of Industrial Code (12 NYCRR) § 23-9.7(e).
Labor Law § 241(6) (TJE)
The appellate court reversed the trial court’s grant of summary judgment, finding defendant failed to demonstrate Industrial Code § 23-9.7(e) was inapplicable. Defendant’s affidavit in support was submitted by a quality control officer without personal knowledge to claim the truck was not moving, and also submitted Plaintiff and co-worker’s testimony that the truck was moving at the time of the accident. As a result, the defendant failed to demonstrate the truck was stationary at the time of the accident, or otherwise establish Industrial Code § 23-9.7(e) was inapplicable.
The plaintiff Jose Leon Palacios was injured when he reversed his personal vehicle into an unguarded trench located on a work site at a new construction home. The Supreme Court granted the defendants' motion for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against the defendant Farrell Building Company, Inc.
Labor Law § 240(1) (MRV)
The lower court properly granted defendants’ motion for summary judgment dismissal of plaintiff’s Labor Law § 240(1) claim because the deposition testimony established that plaintiff was not exposed to any risk that the safety devices enumerated in Labor Law § 240(1) would have protected against. Plaintiff failed to raise a question of fact in opposition.
PRACTICE POINT: Labor Law § 240(1) liability is contingent upon the existence of a hazard contemplated by the statute and the failure to use, or inadequacy of, a safety device of the kind listed in the statute. It does not cover all dangers tangentially related to the effects of gravity.
Labor Law § 241(6) (TJE)
The appellate court modified the trial court’s order on Plaintiff’s Labor Law § 241(6) claim as against Farrell Building Company, finding that the trench at issue was large enough for a car to fall into, and thus could qualify as a hazardous opening under Industrial Code 12 NYCRR 23-1.7(b)(1). Defendants also failed to eliminate triable issues of fact as to whether a violation Industrial Code 12 NYCRR 23-1.7(b)(1) proximately caused Plaintiff’s injuries. As a result, the appellate court found the trial court should have denied defendants’ motion for summary judgment regardless of the sufficiency of Plaintiff’s opposition papers.
Decedent was a technician working for third-party defendant Pengate when he suffered fatal injuries. On the date in question, he went to a facility owned by defendant to service an order picker (hereinafter “the picker”). This particular machine, which is similar to a forklift, was fitted with a platform upon which a person can stand that can be hydraulically raised and lowered. Decedent proceeded to examine and disassemble the picker, at which time the picker's raised platform fell upon decedent, causing his death. The Supreme Court (1) denied plaintiff's motion for summary judgment, (2) partially granted defendant's cross-motion for, among other things, summary judgment dismissing plaintiff's complaint, and (3) granted summary judgment dismissing the third-party complaint.
Labor Law § 240(1) (MRV)
The Third Department reversed the lower court’s award of summary judgment because it found several questions of fact that preclude summary judgment in favor of either party. Plaintiff submitted deposition testimony from decedent’s coworker wherein he testified that he examined the picker the day before the incident and determined it had a leaking lift cylinder. This work was outside the scope of scheduled maintenance and required a separate work order. Plaintiff also provided an expert report from a professional engineer who opined that plaintiff’s work was a repair because it stemmed from an isolated event and the appropriate safety device for the work was a safety stand. Defendants presented a scheduled maintenance agreement with decedent’s employer which specifically included hydraulic leaks. Defendants also relied upon a professional engineer who opined that plaintiff was not performing a repair at the time of the accident and that a chain was an appropriate safety device that was readily available and could have prevented the accident.
PRACTICE POINT: Differentiating between repairs and routine maintenance is a close, fact-driven issue. Typically, routine maintenance involves replacing components that require replacement in the course of normal wear and tear whereas a repair is an isolated and unexpected event. However, even if the court determines that a plaintiff was engaged in repair at the time of the accident, liability is still precluded if you are able to establish that plaintiff was the sole proximate cause of his injury.
Indemnity Issues in Labor Law (AMC)
The Trial Court granted defendant’s motion to dismiss Plaintiff’s complaint. Thus, it deemed defendant’s motion against Pengate for indemnification to be “academic” and dismissed the third-party complaint against Pengate, as well. However, as the Appellate Division reinstated Plaintiff’s wrongful death claim it reinstated the third-party complaint as “academic”.
The property owner, defendant Renee Pokszywka, hired defendants DS Restoration & Residential Services Co. and Lenard C. Dabney to work on the gutters. Plaintiff testified that Dabney asked him if he could assist Dabney with the job. Both Pokszywka and Dabney testified that the work consisted primarily of cleaning the gutters, and Dabney testified that when he discovered a hole in the fascia board, he left the worksite to purchase a piece of flashing to cover the hole, which would not entail removing the gutter. While he was away from the worksite, plaintiff climbed the ladder to continue cleaning the gutter and fell when birds stirred in the hole and he shifted his weight to the left, which caused the ladder to slide and plaintiff to fall. The trial court denied defendants’ motion for summary judgment dismissing Plaintiff’s claims against them.
Labor Law § 240(1) (MRV)
The Fourth Department held the lower court properly denied defendants’ motion seeking dismissal of the Labor Law § 240(1) claim. Defendants did not establish that plaintiff was engaged in routine maintenance rather than repair as a matter of law. Plaintiff’s work primarily involved cleaning the gutters, but Dabney noticed a hole in the fascia. When Dabney left to purchase a piece of flashing to cover the hole, plaintiff continued cleaning the gutter and fell from his ladder when he shifted his weight after birds started stirring in the hole. Defendants presented an expert report opining that a hole in fascia is a common issue caused by normal wear and tear. Plaintiff testified that the cleaning work was incidental to more extensive repair work and presented an expert opinion that a hole in the fascia was not the result of normal wear and tear because the futter was less than 10 years old.
PRACTICE POINT: Routine maintenance can still involve the replacement of a damaged component where the damage is the result of normal wear and tear. A repair, on the other hand, involves an item that was inoperable or malfunctioning before the work began.
Labor Law § 241(6) (TJE)
The appellate court modified the trial court’s order, and dismissed Plaintiff’s § 241(6) claims against the defendants as abandoned with the exception of any claim premised on 12 NYCRR 23-1.21(b)(4)(iv). Defendants failed to meet their burden as to 12 NYCRR 23-1.21(b)(4)(iv), which required the ladder to be held in place by a person stationed at the foot of such ladder unless the upper end of such ladder was secured against side slip by its position or by mechanical means. According to Plaintiff’s testimony submitted by Defendants in their motion papers, the rubber boot on a stabilizer leg was missing. Although Defendants submitted an expert opinion claiming a single missing boot would not appreciably change the stability and safety of the standoff on a properly placed ladder, the expert’s rationale on how he reached this conclusion was vague. Plaintiff failed to address any other regulations in his appeal except 12 NYCRR 23-1.21(b)(4)(iv), and the court deemed them abandoned.
Labor Law § 200 and Common-Law Negligence (JLD)
The Court held that defendants’ motion with respect to Labor Law 200 and common law negligence causes of action were properly denied because there remained triable questions of fact as to whether Dabney actually controlled or directed the work which led to plaintiff’s injuries.
 New York Industrial Code Regulations (EDA)
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Regulation § 23–1.27 Mechanical, hydraulic and pneumatic jacks.
(e) Use.
The use of any jack shall be at all times under the direct supervision of a designated person.
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No court has ruled on this sub paragraph as a basis for a Labor Law §241(6) claim.
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If a Court found this section to be applicable, It is likely that a court would find it specific enough to sustain a Labor Law §241(6) claim.
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Labor Law Pointers
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Labor Law Team
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