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Volume XV, No. 7
Wednesday, June 3, 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.
This month we have the pleasure of introducing our newest team member, Rob Flynn. Rob has 28 years of litigation experience, mostly doing NY Labor Law. Rob comes to us from a house counsel position. He is a talented trial attorney, experienced with complex and high exposure cases. Please feel free to reach out to Rob, or any team member, with any Labor Law or Risk Transfer questions you may have.
Our team has started rotating coverage of the various monthly cases, breaking it down by department and topic, [§ 240(1), § 241(6), § 200 and Indemnity] so that the point of view is not always from the same attorney as different attorneys evaluating a case while seeing the same issues may well have different outlooks on handling the case and strategy. Feel free to reach out to any of the team members. Please recall that all you need do is click on a name or initials and an email will be opened to make reaching out easier.
This month, for the case of the month Marty Violante will be addressing a Court of Appeals case, Mann v Mezuyon, where the court addresses what makes a regulation qualify as either specific or general. As you will recall, only a specific regulation can be used to support a § 240(1) claim, a general regulation will not suffice. Click here to register.
For our photogenic plaintiff offering of the month, there is a backstory. I arrived home one evening recently to find a truck and a stack of bricks in my driveway. As I walked inside, I heard a grinding noise and went to investigate its source. There, on the balcony, was a mason repairing bricks that had come loose.
I had commented to the property manager several weeks earlier that some of the bricks were loose and, because the exterior of the condo was the HOA's responsibility rather than mine, asked that they be repaired. Well, here he was. As I looked at the job he was doing, my heart dropped into my stomach. He was standing on the side of the balcony, on top of the wall with a substantial drop to the deck below. I immediately did the prudent thing: I ran to find my wife, also an attorney, and asked whether she had provided any supervision, direction, or control to the worker. She immediately responded that she was no dummy. Having handled her fair share of Labor Law cases back in the day and having heard more than enough from me on the subject, she would not even discuss the means and methods of the job if he had begged her to do so. She then recommended that we flee the scene before anyone could claim that we had controlled anything.
I quickly took pictures and we headed out to dinner. Please see the photos and scenario below. It was just too good not to use.
In our first offering this month, an HOA hired a self-employed mason to repair bricks that had worked their way loose over the winter due to the freeze-thaw cycle that affects us here in New York State. The HOA had hired this same mason each year to inspect, repair, and replace loose bricks. When the homeowner observed the plaintiff at work, he was standing on a narrow area atop a wall, with a four-foot drop to the balcony on one side and a fifteen-foot drop to the deck below on the other. He was not using any safety devices, and none had been supplied by the HOA, the condominium owner, or anyone else. The homeowner asked the plaintiff whether that was a smart and safe place from which to work. The plaintiff responded that he had worked from that exact position on many of the condominiums in the community, that he was comfortable working in that manner, and that he did not consider it dangerous. The homeowner was not convinced, said it looked dangerous to him and thought that there must be a safer way, but said that if he was sure it was safe to go ahead and work from there.
As the plaintiff went to loosen the brick he was going to replace, he lost his balance and fell to the deck below, breaking both of his legs. § 240(1) case?
We will start, as always, by addressing the elements of a prima facie case. The plaintiff is a valid plaintiff, as he was a person so employed. The defendant HOA, who would seem to have owned the exterior of the building, would be a valid as it is commercial property. The condo owner, on whose wall edge the plaintiff was standing, is potentially a valid defendant. However, the owner would be entitled to the homeowner's exemption so long as he or she did not supervise, direct, or control the means and methods of the plaintiff's injury-producing work. The work being done might be considered repair and covered, or it could be argued as routine maintenance as it needed to be done every year. The plaintiff was injured by an elevation differential and the effects of the force of gravity.
First, we will look at the sole proximate cause defense. To implement that defense, the plaintiff must be supplied with an appropriate safety device, which is available and he was instructed to use, failed to use, or misused and did so for no good reason. Here, no safety device was supplied at all so the sole proximate cause defense seems dead in the water.
Next, we will address the condo owner's role and the question of whether he supervised, directed, or controlled the plaintiff's work. In the end, they likely did not, but they come much closer than I would like. Telling the plaintiff it does not look safe is fine, but when he said “if he was sure it was safe to go ahead and work from there” is a bit of a close call and I would not want to be in the Fourth Department with that one.
As for the repair of routine maintenance argument, the fact that the plaintiff had to replace or repair bricks every spring is helpful, but the fact that there are different bricks on different buildings each year and that he has to actually cut them out and replace them leads me to believe it is likely repair and not routine maintenance. Bricks do not have a limited life, and brick walls are not designed to need bricks replaced or repaired annually thus, again, repair not routine maintenance.
As always, we are looking for your opinions as to the scenario. Please feel free to disagree with me and tell me why.
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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Garcia v Monadnock Constr., Inc.
May 21, 2026
Court of Appeals (EDA)
Plaintiff was injured in 2020 while working at a construction site. He filed a workers' compensation claim as well as a personal injury action alleging negligence and Labor Law violations. In 2021, the Workers' Compensation Board determined that plaintiff did not sustain causally related injuries. One year later, defendants in the personal injury action moved to amend their answer to assert an affirmative defense of collateral estoppel based on the Workers' Compensation Board's decision and for partial summary judgment. Plaintiff opposed that motion, arguing that a newly enacted law, the Justice For Injured Workers Act (JIWA) prohibited the court from giving collateral estoppel effect to the workers' compensation decision. JIWA provides that a determination by the Workers' Compensation Board "shall not be given collateral estoppel effect in any other action or proceeding arising out of the same occurrence, other than the determination of the existence of an employer employee relationship" (Workers' Compensation Law § 11 [2]; see also id. § 118-a [similarly providing that "no finding or decision by the workers' compensation board, judge or other arbiter shall be given collateral estoppel effect in any other action or proceeding arising out of the same occurrence, other than the determination of the existence of an employer employee relationship"]). The legislature provided that JIWA would take effect "immediately". It therefore took effect on the date that the Governor signed it into law: December 30, 2022. Plaintiff's opposition to defendant's motion was filed in February 2023, and plaintiff argued that pursuant to JIWA, Supreme Court could not give collateral estoppel effect to the 2021 workers' compensation decision. In reply, defendants asserted that JIWA should not be applied "retroactively" to cases pending before the effective date of the legislation.
In July 2023, Supreme Court granted defendants' motion. On appeal, the Appellate Division reversed. Analyzing the various factors discussed in Matter of Gleason [Michael Vee, Ltd.] (96 NY2d 117, 122 [2001]), the Appellate Division concluded that JIWA should be applied retroactively (235 AD3d 96 [1st Dept 2025]).
The Court of Appeals Affirmed the Appellate Division, however for different reasons that the factors cited by the Appellate Division in its analysis of Matter of Gleason [Michael Vee, Ltd.] (96 NY2d 117, 122 [2001]. The Court of Appeals found that a straightforward prospective application of JIWA, would require a finding that the Supreme Court erred in giving collateral estoppel effect to the 2021 decision of the Workers' Compensation Board. By its plain terms, JIWA, as of its effective date, prohibited courts from giving collateral estoppel effect to workers' compensation decisions arising out of the same occurrence, except with respect to the existence of an employer-employee relationship. The Court disagreed with the defendants that applying a bar to estoppel effect to a decision already made before the effective date was retroactive application.
Mann v Mezuyon, LLC
May 21, 2026
Court of Appeals
Mayrich Construction Corp. was performing excavation work at a site owned by Mezuyon. The excavation work required drilling into bedrock and blasting. Several drilling rigs drilled holes for explosives, the charges were detonated, and excavators moved blast mats and removed blasted material. At the time of the accident, six drilling machines and three excavators were operating simultaneously. Plaintiff William Mann (Mann), a Mayrich driller, was operating one of the drilling rigs. His drilling machine malfunctioned and he called for a mechanic. While the mechanic inspected the machine, the rear of a nearby excavator swung within a few feet of Mann's rig. After the mechanic suggested relocating to a safer spot, Mann moved the drilling rig approximately 20 to 30 feet away. Unfortunately, while Mann was lowering the drill head at the mechanic's request, the back corner of an excavator rotated into him, striking him and knocking him to the ground.
Mann sued defendant Mezuyon, asserting claims for common-law negligence and violations of Labor Law §§ 200, 240 (1), and 241 (6). Mann's Labor Law § 241 (6) claims were originally predicated on violations of sections 23-9.4 (h) (4) and 23-9.5 (c) of the Industrial Code. Mezuyon moved for summary judgment to dismiss the complaint. Mann opposed the motion and cross-moved to amend his bill of particulars to add section 23-4.2 (k) of the Industrial Code (12 NYCRR 23-4.2 [k]) as an additional basis for his Labor Law § 241 (6) claim. Section 23-4.2 (k) states that "[p]ersons shall not be suffered or permitted to work in any area where they may be struck or endangered by any excavation equipment." The Supreme Court granted Mann's motion to amend his bill of particulars and dismissed all of Mann's claims, except for his Labor Law § 241 (6) claim predicated on a violation of section 23-4.2 (k). Mezuyon then commenced a third-party action against Mayrich. The Supreme Court granted Mayrich's subsequent motion for summary judgment and dismissed Mann's Labor Law § 241 (6) claim. The Appellate Division, First Department, affirmed.
 Labor Law § 241(6) (MRV)
The Court of Appeals affirmed dismissal of Plaintiff’s § 241 (6) claim. Vicarious liability under § 241 (6) is limited as only provisions of the Industrial Code that mandate compliance with concrete specifications give rise to a nondelegable duty under the statute. Therefore, in order to support a § 241 (6) claim, the Industrial Code provision relied upon must mandate compliance with a concrete specification rather than declare general safety standards.
The Appellate Division is split over whether Section 23-4.2(k) is sufficiently specific to support a § 241 (6) claim. The First, Third, and Fourth Departments have held that it is not, while the Second Department has held that it is.
The Court of Appels held that 23-4.2(k) is not sufficiently specific to give rise to a nondelegable duty. To be sufficiently specific, a provision must both identify a specific safety concern and command specific action to address that concern. Here, Section 23-4.2(k) fails to state any action required to address the safety concerns set forth in the provision and, as such, the Court of Appeals held it cannot serve as a basis for vicarious liability under § 241 (6).
Rosenblum v City of New York
May 5, 2026
Appellate Division, First Department
The City hired Oliveira as the general contractor for a project known as "Reconstruction of the Webster Avenue Select Bus Service," which involved extending the sidewalk further into the street by cutting a section of concrete, preparing a subbase, and pouring new concrete. Plaintiff, who delivered concrete to the jobsite, was injured when a "platform," which was made of wood, rebar, and wire, or "wooden block," collapsed underneath him. He fell two and one-half to three feet into an excavated area the width of a bus lane. The Supreme Court granted plaintiff's motion for summary judgment as to liability on his Labor Law § 240(1) claim, denied the motion of defendant The City of New York for summary judgment dismissing plaintiff's Labor Law §§ 240 (1) and 200 claims and common-law negligence claim, for summary judgment dismissing defendant Oliveira Contracting, Inc.'s cross-claims for common-law indemnification and contribution, and summary judgment on the City's contractual indemnification and breach of contract cross-claims against Oliveira, and granted the City's motion for summary judgment dismissing plaintiff's Labor Law § 241 (6) claim predicated on Industrial Code (12 NYCRR) § 23-1.7 (b) (1).
 Labor Law § 240(1) (EDA)
The Appellate Division affirmed the Supreme Court finding that Plaintiff, who was delivering construction materials to an active jobsite was covered by the statute (see Serrano v TED Gen. Contr., 157 AD3d 474, 475 [1st Dept 2018]). Plaintiff's accident was also the direct consequence of defendants' failure to protect plaintiff from an elevation-related hazard since he fell into the excavated area (see Rubio v New York Proton Mgt., LLC, 192 AD3d 438, 439 [1st Dept 2021]). Plaintiff also could not be the sole proximate cause of his accident because he was advised to walk on the platform by jobsite workers (see Cazho v Urban Bldrs. Group, Inc., 205 AD3d 411, 411-412 [1st Dept 2022]).
PRACTICE POINT: As we have often reminded, in order to prevail on a sole proximate cause defense under Labor Law § 240(1) Plaintiff cannot act in conjunction with another person and still be the SOLE proximate cause. Rather, the defense needs to provide evidence that an alternative safety device was available, known to plaintiff, suitable for the assigned work, and that Plaintiff refused or unreasonably failed to use it. Defendants failed to provide evidence that an alternate, adequate device was available and known to Plaintiff.
 Labor Law § 241(6) (JLD)
As the court granted summary judgment to plaintiff on his Labor Law § 240(1) claim, the arguments related to Plaintiff’s 241(6) claim were deemed academic.
 Labor Law § 200 and Common-Law Negligence (PCSM)
The Appellate Division held that plaintiff’s Labor Law § 200 and common-law negligence claims against the City should have been dismissed because the accident arose from the means and methods of the work, not a dangerous premises condition. Specifically, plaintiff was injured when a temporary “platform” or “wooden block” collapsed due to improper installation while he was delivering concrete, making a means-and-methods analysis applicable.
Under that framework, liability depended on whether the City exercised supervisory control over the injury-producing work. The City established that it had no authority over how the work was performed, including directing where plaintiff walked while delivering concrete or how the platform was installed. Although the City retained general supervisory authority over the project, the court found that such oversight was insufficient to establish the level of control necessary to impose liability under Labor Law § 200 or common-law negligence.
Indemnity Issues in Labor Law (EDA)
The Appellate Division reversed the Supreme Court and found it should also have granted the City summary judgment on its cross-claim for contractual indemnification against Oliveira because the indemnification provision here was triggered solely by virtue of plaintiff's accident occurring while delivering concrete to the jobsite. In addition, the City established its freedom from negligence and thus it is entitled to an unconditional award of summary judgment on its contractual indemnification claim. Further, it held that because the City was not negligent, the court should have dismissed Oliveira's cross-claims for common-law indemnification and contribution. Finally, the Appellate Division affirmed the Supreme Court and found that it properly denied the City's summary judgment motion to the extent it sought summary judgment on its breach of contract cross-claim based on Oliveira's failure to procure insurance. The City's cross-claim, which alleges that Oliveira "may be liable . . . for contribution on the basis of their equitable shares of responsibility, or for indemnity on the basis of a contract . . . actual or implied," fails to plead Oliveira's obligation to obtain insurance, Oliveira's failure to obtain it, and any damages arising out of that failure.
Calle v JRR Contr. Inc.
May 7, 2026
Appellate Division, First Department
JRR was hired to perform façade restoration on the building, and in turn subcontracted all the façade work to Regalado. JRR timely served Regalado with the third-party action pursuant to Business Corporation Law § 306(b) and CPLR 3215(g)(4). JRR took affirmative steps to obtain a default judgment within and shortly after the one-year deadline. JRR submitted sworn deposition testimony and the parties' subcontract to demonstrate JRR's lack of supervision over the work, its entitlement to indemnification, and Regalado's obligation to maintain insurance and name JRR as an additional insured. The Supreme Court denied defendant/third-party plaintiff JRR Contracting, Inc.'s motion for entry of a default judgment on its third-party claims for indemnification, contribution, and breach of contract against third-party defendant Regalado Contracting Inc.
Indemnity Issues in Labor Law (EDA)
The Appellate Division reversed the Supreme Court finding that JRR timely and properly served Regalado with the third-party action. The breach of contract claim premised on Regalado's failure to procure insurance is not contingent on a finding of liability and thus remained subject to the one-year deadline of CPLR 3215(c). Nevertheless, JRR demonstrated sufficient cause for its tardiness on the breach of contract claim as it took affirmative steps to obtain a default judgment within and shortly after the one-year deadline, including two motions for a default judgment and additional service of the third-party action pursuant to CPLR 3215(g)(4) (see 938 St. Nicholas Ave. Lender LLC v 936-938 Cliffcrest Hous. Dev. Fund Corp., 241 AD3d 1134, 1135 [1st Dept 2025]). JRR also sufficiently established proof of the facts constituting the claim as required by CPLR 3215(f) "to enable [the] court to determine that a viable cause of action exists".
Gonzalez v Navillus Tile, Inc.
May 7, 2026
Appellate Division, First Department
Plaintiff was standing on rebar and leveling freshly poured concrete when he slipped and fell through the rebar and into the concrete. Plaintiff argues that plywood planks should have been placed over the rebar as a work platform. However, defendants submitted the affidavit of plaintiff's foreman, who testified that it would have been "impractical and contrary to the very work at hand to cover the area where the concrete was being spread". The Supreme Court denied plaintiff's motion for partial summary judgment on the Labor Law §§ 240(1) and 241(6) claims.
Labor Law § 240(1) (EDA)
The Appellate Division affirmed the Supreme Court finding that Plaintiff failed to establish entitlement to summary judgment on the Labor Law § 240(1) claim (see Marte v Tishman Constr. Corp., 223 AD3d 527, 529-530 [1st Dept 2024]). Plaintiff’s testimony that plywood would have prevented the accident was rebutted by the affidavit of plaintiff's foreman, who averred that it would have been "impractical and contrary to the very work at hand to cover the area where the concrete was being spread" (id. at 530, quoting Salazar v Novalex Contr. Corp., 18 NY3d 134, 140 [2011]).
PRACTICE POINT: In The "Integral Part" Defense, Courts generally hold that if the hazard is an integral part of the work the employee was hired to perform (e.g., excavating a deep trench or working inside a pit), Labor Law 240(1) does not apply to the hazard itself. The statute is meant to protect against other gravity hazards, not the very hole they are actively constructing or situated inside. Safety devices are still required, however, even if the hole itself is an inherent part of the job. Owners and contractors are still obligated to provide other adequate safety devices.
Labor Law § 241(6) (JLD)
The First Department concluded that the trial court properly denied plaintiff’s motion for summary judgment on the § 241(6) claim, as Plaintiff failed to establish that the allegedly wet substance on the rebar he slipped on was not associated with the work that hew as performing.
De Souza v El Sol Contr. & Constr. Corp.
May 14, 2026
Appellate Division, First Department
Plaintiff was injured when the 12-foot long, upper half of a dismantled extension ladder which lacked stabilizing feet slid out from under him and collapsed while he was engaged in bridge painting work on an elevated work platform made out of flexible corrugated metal. Prior to his accident, Plaintiff complained to his employer's foreman and safety director regarding the instability of the ladder segment yet was not provided with another ladder to safely perform his work. The general contractor's project superintendent testified at deposition that plaintiff's ladder was missing stabilizing feet and should have been tied off at its top to keep it stable under the circumstances. The Supreme Court granted plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim.
Labor Law § 240(1) (EDA)
The Appellate Division affirmed the Supreme Court finding that Plaintiff established prima facie entitlement to summary judgment on his Labor Law § 240(1) claim by submitting evidence that the ladder was defective, he complained to his foreman about it and was not provided a suitable ladder. In opposition, defendants argued that plaintiff's own actions in using the extension ladder despite safe ladders being available elsewhere at the work site raised triable issues as to whether plaintiff's own actions were the sole proximate cause of his accident, however, the affidavits submitted by defendants did not assert that plaintiff knew he was expected to use a different ladder and that he unreasonably rejected the use of an alternate ladder, thus failing to raise a triable issue of fact. Defendants also failed to raise an issue of fact as to sole proximate cause based on their witnesses' statements that he ignored repeated instructions not to work on the ladder absent a co-worker present to brace the ladder. Even if true, the allegation at most amounts to comparative negligence, which is not a defense to a Labor Law § 240(1) claim, and a co-worker supporting an otherwise inadequate ladder does not constitute a safety device within the contemplation of the statute (see Melendez v 1595 Broadway LLC, 214 AD3d 600, 601-602 [1st Dept 2023]; McCarthy v Turner Constr., Inc., 52 AD3d 333, 334 [1st Dept 2008]).
PRACTICE POINT: Again and again we reiterate that a person is not a safety device. A party cannot rely on the assistance of a co-worker or another individual to make an inadequate or unsafe device adequate or safe. Essentially, this is the Plaintiff and the other person working together which, in and of itself, defeats the sole proximate cause because the actions of the other person are a contributing factor.
Plaintiff was injured while working on the demolition of a bridge and walking across an outdoor temporary deck constructed over the water to permit workers and heavy machinery, including cranes, to access the work area. As plaintiff traversed the wooden plank deck, he allegedly tripped over a small, raised square piece of plywood that had been fastened to the deck to cover a hole in the surface. Plaintiff claimed that the condition violated multiple provisions of the Industrial Code and asserted a Labor Law § 241(6) claim.
Defendants moved for summary judgment dismissing the portions of the § 241(6) claim predicated on Industrial Code §§ 23-1.7(e)(1), 23-1.7(e)(2), and 23-1.22(b)(1)-(3), while plaintiff cross-moved for partial summary judgment on those same provisions. The lower court granted defendants’ motion and denied plaintiff’s cross motion. Plaintiff appealed.
Labor Law § 241(6) (JLD)
The First Department affirmed the lower court, finding that the accident did not take place within the meaning of a “passageway” of Industrial Code §23-1.7(e)(1). The outdoor deck was constructed to allow workers to demolish a bridge using heavy equipment, such as cranes. Thus, it occurred in a “working area” under §23-1.7(E)(2). The small, raised piece of square plywood over which plaintiff tripped was fastened to the deck and was not “dirt,” “debris,” “scattered tools,” or a “sharp project.” The court also found that Industrial Codes §23-1.22(b)(1), (2), and (3) regulate the structural integrity of the runways and ramps themselves and do not apply to the alleged defect here. Industrial Code §23-1.22(b)(2) concerns runways and ramps constructed for the use of “persons only” and is also inapplicable.
Terron-Alcantara v Charlie's Real Estate LLC
May 14, 2026
Appellate Division, First Department
Plaintiff was injured while performing construction work at a job site. According to plaintiff’s testimony, an angle grinder available at the site lacked a protective guard. While using the grinder, it allegedly “kicked back,” causing the exposed blade to cut his arm. Plaintiff testified that he used the grinder because it was present and accessible on the work site, despite his supervisor allegedly instructing him to use a sledgehammer instead of the grinder.
Plaintiff moved for partial summary judgment on liability under Labor Law § 241(6), alleging a violation of Industrial Code § 23-1.5(c)(3), which requires equipment to be maintained in sound and operable condition and mandates that damaged equipment be repaired, restored, or removed from the site. In support, plaintiff relied on his uncontradicted testimony that the grinder was missing a guard and an expert affidavit stating that accepted safety practice requires angle grinders to be used with guards.
The defendant argued that plaintiff should not have been using the grinder because he had been instructed to use a sledgehammer and was not provided with the grinder. The lower Court denied Plaintiff’s motion. Plaintiff appealed.
Labor Law § 241(6) (JLD)
The First Department reversed the trial court, concluding that plaintiff established a prima facie entitlement to summary judgment on a violation of Industrial Code § 23-1.5(c)(3), via Plaintiff’s uncontroverted testimony and the expert affidavit that a “good and accepted practice” was to use an angle grinder with a guard. In opposition, Defendants failed to raise a triable issue of fact; Plaintiff’s testimony that the grinder was on the work site and available for him to use was not contradicted by evidence that his supervisor advised him to use only the sledgehammer. At most, this constitutes comparative negligence, which is insufficient to defeat plaintiff’s motion. An instruction by an employer to avoid using unsafe equipment is not a safety device, in the sense that plaintiff’s failure to comply with instruction is the equivalent to refusing to use available, safe and appropriate equipment.
Diaz v Boston Props., Inc.
May 19, 2026
Appellate Division, First Department
Plaintiff testified that he fell because he lost his balance and the ladder on which he was standing shook. The Supreme Court denied plaintiff's motion for summary judgment on his Labor Law § 240 (1) claim as against defendants Boston Properties, Inc., Petretti & Associes LLC, and Sovereign Mechanical Corp. (collectively, defendants), and, upon a search of the record, granted defendants summary judgment dismissing the second amended complaint.
Labor Law § 240(1) (EDA)
The Appellate Division reversed the Supreme Court finding that Plaintiff's testimony that he fell because he lost his balance and the ladder on which he was standing shook established his prima facie entitlement to summary judgment on his Labor Law § 240 (1) claim. Defendants failed to raise an issue of fact as to whether plaintiff was the sole proximate cause of his accident. The only evidence on which defendants relied was a recorded statement purportedly made by plaintiff after his accident that appears on a single page from his uncertified, and therefore inadmissible, medical records. Further, plaintiff's description of the accident in that statement was not germane to his diagnosis or treatment.
PRACTICE POINT: Not every piece of information is admissible, no matter how useful it is. Here, the record was not only not in admissible form, which could have been remedied, the statement was not given for a reason that would make it admissible testimony.
Maza v 120 E. 144 LLC
May 19, 2026
Appellate Division, First Department
Plaintiff suffered a crush injury to his left foot while working on a demolition project at defendant's premises. Plaintiff testified that the approximately 1,000-pound bucket attachment on a Bobcat compact excavator fell on his foot while he was switching it out with another attachment. The Supreme Court denied plaintiff's motion for partial summary judgment on his claims pursuant to Labor Law §§ 240(1) and 241(6).
Labor Law § 240(1) (EDA)
The Appellate Division affirmed the Supreme Court finding that Plaintiff met his prima facie burden on summary judgment by submitting his deposition testimony that the approximately 1,000-pound bucket attachment on a Bobcat compact excavator fell on his foot while he was switching it out with another attachment (see Marrero v 2075 Holding Co. LLC, 106 AD3d 408, 409 [1st Dept 2013]). In response, defendant established an issue of fact concerning the cause of plaintiff's injury and whether it was gravity-related (see Campos v 68 E. 86th St. Owners Corp., 117 AD3d 593, 594 [1st Dept 2014]). Specifically, sworn statements by the coworker who was operating the Bobcat, and a statement that plaintiff allegedly made to his project manager, suggest that plaintiff's foot was on top of the bucket while the bucket was still fully attached to the Bobcat. This alternate cause of plaintiff's injury was not related to gravity and so could not give rise to liability under Labor Law § 240(1).
PRACTICE POINT: The extraordinary protections of Labor Law 240(1) extend only to gravity-related hazards, and do not encompass any and all perils that may be encountered at a construction site. Therefore, a plaintiff must show that an object fell and that it was being hoisted or secured, or that the falling object required securing for the purposes of the undertaking, or that he himself fell.
Labor Law § 241(6) (JLD)
The trial court also correctly denied plaintiff’s § 241(6) claims premised on Industrial Code §§ 23-1.5(c)(3) and 23-9.2(a). Assuming that the defendant violated these sections, defendant’s alternative account of the injury raises issues of fact as to whether these violations caused plaintiff’s injuries.
Perez v Tanya Towers, Inc.
May 19, 2026
Appellate Division, First Department
Plaintiff was not provided a ladder or other safety device, but was nonetheless ordered to climb a scaffold or tubing to access an elevated sidewalk bridge to remove wood. In the process of doing so, the tubing became loose, causing plaintiff to fall. The Supreme Court granted plaintiff's motion for summary judgment on his Labor Law § 240(1) cause of action.
Labor Law § 240(1) (EDA)
The Appellate Division affirmed the Supreme Court finding that Plaintiff's uncontradicted testimony as to the loose tubing on the scaffolding and the failure to provide a ladder was sufficient to make out his prima facie case (see Van Guilder v Sands Hecht Constr. Corp., 199 AD2d 164, 164 [1st Dept 2021]; Badzio v East 68th St. Tenants Corp., 200 AD3d 591, 592 [1st Dept 1993]). Defendants failed to raise a triable issue of fact, as they failed to present testimony or other evidence controverting plaintiff's account of the accident. It is immaterial that the accident was unwitnessed because "there is nothing in the record that contradicts plaintiff's version of the accident or raises an issue as to his credibility" (Gutierrez v Turner Towers Tenants Corp., 202 AD3d 437, 438 [1st Dept 2022]).
PRACTICE POINT: To overcome Plaintiff’s prima facie case, a Defendant must show a material issue of fact sufficient to prevent summary judgment as a matter of law. Offering testimony which does not specifically address whether the device provided was adequate will be insufficient to overcome summary judgment, even when the accident is unwitnessed. If there is no witness, there is no contradiction, and therefore no question of fact.
Andrade v 1203 E N.Y. Ave Owner, LLC
May 21, 2026
Appellate Division, First Department
The plaintiff was using a manual crane called a roustabout and acting as a counterweight by standing on the roustabout's legs when the approximately 1,000-pound column he was hoisting fell, leading to him being launched into the air and struck by either the roustabout or the column itself. The defendant foreman testified that Plaintiff was directed to serve as a counterweight by the project foreman. The Supreme Court granted plaintiff's motion for summary judgment on his Labor Law § 240(1) claim.
Labor Law § 240(1) (EDA)
The Appellate Division affirmed the Supreme Court finding that Plaintiff's motion for summary judgment was not premature. Defendants improperly raised the issue of deposing the co-workers for the first time on appeal. Even if considered, defendants had not "made an evidentiary showing that discovery may lead to evidence that would raise a triable issue to warrant denial of plaintiff[']s motion" (Harjo-Codd v Tishman Constr. Corp., 233 AD3d 542, 543 [1st Dept 2024]).
On the merits, plaintiff’s testimony on how the incident happened is sufficient to establish a violation of the statute (see Runner v New York Stock Exch., Inc., 13 NY3d 599, 604 [2009]). Plaintiff's failure to identify the actual object which struck him does not preclude summary judgment in his favor (see Harsanyi v Extell 4110 LLC, 220 AD3d 528, 529 [1st Dept 2023]), and it is immaterial whether or not he was directed to serve as a counterweight by the project foreman (see Penaranda v 4933 Realty, LLC 118 AD3d 596, 597 [1st Dept 2014]). Defendants failed to raise an issue of fact as to whether plaintiff was the sole proximate cause of his accident by standing on the legs of the roustabout. Even if it were true that plaintiff was directed not to stand on the legs of the roustabout, his decision to do so would at most amount to comparative negligence, which is not a defense to a Labor Law § 240(1) claim (see Mayorquin v Carriage House Owner's Corp., 202 AD3d 541, 542 [1st Dept 2022]).
PRACTICE POINT: To assert the "recalcitrant worker" defense under New York Labor Law § 240(1), a defendant must prove that the injured worker was the sole proximate cause of their own injuries:
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Adequate safety devices were available.
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The worker knew the devices were available.
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The worker knew they were expected to use them.
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The worker deliberately refused to use them and this deliberate refusal was the sole cause of the accident.
Generally speaking, telling a worker to do or not to do something a certain way is different than recalcitrant worker. It is just comparative negligence.
Chiappa v Port Auth. of N.Y. & N.J.
May 21, 2026
Appellate Division, First Department
Plaintiff was injured while working on a construction project at LaGuardia Airport, which was owned by the Port Authority and leased to Delta Air Lines. According to plaintiff, a Delta superintendent overseeing construction of a new terminal and concourse instructed him to move approximately ten crates of construction materials, each weighing about 400 pounds, across an expansion joint. To transport the crates, plaintiff and a coworker used pallet jacks and crossed over a plywood ramp that Delta had installed over the joint.
While moving one of the crates, the pallet jack became stuck on the ramp. Plaintiff and his coworker attempted to lift the crate to free it, and plaintiff sustained injuries during the process. Testimony in the record suggested that the plywood ramps were unstable and defective. Plaintiff’s coworker testified that the ramps would “flap around” when crossed, while plaintiff’s supervisor testified that the ramps would become loose, peel up, and warp over time.
Plaintiff alleged that the ramp was inadequately secured and failed to support the combined weight of the pallet jack and heavy crate. Evidence also showed that the work had to be completed immediately, with plaintiff testifying that a supervisor instructed the crates be moved “today, like now.” At the time of the incident, approximately half of the crate remained on the pallet jack, and plaintiff and his coworker believed lifting it together was the practical solution to continue the assigned task. Defendants argued plaintiff caused his own injuries by attempting to manually lift the crate instead of using another method or waiting for additional assistance.
Defendants filed a motion for summary judgment dismissal of Plaintiff’s Labor Law § 200 and common-law negligence claims and the Labor Law § 241(6) claim. The lower court granted defendants’ motion. Plaintiff appealed.
Labor Law § 241(6) (JLD)
The Appellate Division held that it was error to dismiss the § 241(6) claims because, at a minimum, the record contains an issue of fact as to whether defendants violated § 23-1.22(b)(1) by providing a ramp that was not secured. Plaintiff’s coworker testified that the plywood ramps “flapped around” and his supervisor testified that the ramps “came loose” and “started peeling up” because they were up.” The Appellate Division concluded that the ramp failing to withstand the weight of the pallet jack and crane demonstrates it was not adequate constructed.
Labor Law § 200 and Common-Law Negligence (PCSM)
The Appellate Division held that plaintiff’s Labor Law § 200 and common-law negligence claims against Delta Air Lines should be reinstated because issues of fact existed regarding Delta’s control over the injury-producing work. Since plaintiff’s accident arose from the means and methods of the work—specifically, moving heavy crates across a ramp and attempting to free a crate that became stuck—the relevant inquiry was whether Delta exercised supervisory control over that work.
The court found evidence supporting a factual dispute on that issue, including testimony that a Delta superintendent directed plaintiff to move the crates and required the task to be completed immediately. This evidence raised questions as to whether Delta exercised sufficient authority over the manner in which the work was performed to support liability under Labor Law § 200 and common-law negligence.
De Souza v Hudson Yards Constr. II LLC
May 21, 2026
Appellate Division, First Department
The Appellate Division affirmed the order granting plaintiff summary judgment (De Souza v Hudson Yards Constr. II LLC, 231 AD3d 614 [1st Dept 2024]), which defendants now seek to vacate through the introduction of new evidence. Defendants first identified Silva at the end of 2024, approximately two years after they submitted their opposition to plaintiff's motion for summary judgment, that he only agreed to cooperate in April 2025, and that defendant filed their motion to renew approximately one week after Silva, who Plaintiff was unable to identify during his deposition, signed his affirmation related to his translating plaintiff's statements regarding the accident, in support of the motion to renew on June 30, 2025.
Labor Law § 240(1) (EDA)
The Appellate Division affirmed the Supreme Court finding that Defendants established that renewal is warranted notwithstanding that this Court affirmed the order granting plaintiff summary judgment (De Souza v Hudson Yards Constr. II LLC, 231 AD3d 614 [1st Dept 2024]), which defendants now seek to vacate through the introduction of new evidence. Defendants satisfied their burden by demonstrating that they first identified Silva at the end of 2024, approximately two years after they submitted their opposition to plaintiff's motion for summary judgment, that he only agreed to cooperate in April 2025, and that defendant filed their motion to renew approximately one week after Silva signed his affirmation in support of the motion to renew on June 30, 2025 (see Tishman Constr. Corp., 280 AD2d at 377; Tesa v Transit Auth. of City of N.Y., 184 AD2d 421, 423 [1st Dept 1992]). For these same reasons, denial of plaintiff's cross-motion to preclude Silva, who plaintiff was unable to identify during his deposition, was also "an appropriate exercise of discretion" (Scherrer v Time Equities, Inc., 27 AD3d 208, 209 [1st Dept 2006]).
Upon renewal, the court correctly denied plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim because Defendants established that Silva, in translating plaintiff's statements regarding the accident, was "competent [and] objective," and that his affirmation was admissible under the agency exception to the hearsay rule (Nava-Juarez v Mosholu Fieldston Realty, LLC, 167 AD3d 511, 512 [1st Dept 2018]; see People v Quan Hong Ye, 67 AD3d 473, 473 [1st Dept 2009], lv denied 14 NY3d 804 [2010]). The conflicting versions of the incident from plaintiff created a triable issue of fact.
PRACTICE POINT: Persistence and timely action are what mattered here. Not only did defendant continue to pursue evidence and testimony rather than concede defeat, but they also acted promptly when new evidence was discovered and presented it in admissible form.
Pacheco v Tishman Constr. Corp. of N.Y.
May 21, 2026
Appellate Division, First Department
Plaintiff's decedent and his co-worker were working from an aerial boom lift installing electrical piping at a construction site. While descending in the lift, decedent and his co-worker were forcibly ejected from its basket after the lift hit an obstruction. It is undisputed that both men had removed their safety lanyards before the lift's descent. It was unclear whether a stanchion or some other obstruction caused the accident. The Supreme Court granted plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim.
Labor Law § 240(1) (EDA)
The Appellate Division affirmed the Supreme Court finding that Plaintiff established his prima facie entitlement to liability under Labor Law § 240(1) by demonstrating that the lift failed to provide decedent with protection from a gravity-related hazard. While it is unclear exactly what caused the accident, plaintiff was not required to demonstrate the precise etiology of the accident (see Gordon v Eastern Ry. Supply, 82 NY2d 555, 562 [1993]). In opposition, defendants failed to create an issue of fact about the adequacy of the boom lift.
PRACTICE POINT: Decedent hit something. Once a plaintiff establishes that a statutory violation, such as the failure to provide proper elevation equipment, was a proximate cause of their injuries, they do not need to prove the exact, technical cause or "precise etiology" of the accident. Therefore, we don’t need to know exactly what he hit as long as the incident was gravity related. Note that the removal of the harness cannot be the sole proximate cause of the injury as the lift itself did not protect the plaintiff and thus, as it was a cause of the injury removal of the harness cannot be the SOLE proximate cause.
Perez v Kew Gardens Dev. Corp.
May 21, 2026
Appellate Division, First Department
Defendant's project manager testified that defendant was not retained to work as a general contractor and never visited the site despite attending a preliminary meeting with the property owner to discuss potential work. The work permit listed defendant's principal as the general contractor. Also, the owner admitted in its unverified stricken answer that it retained defendant as general contractor. The Supreme Court denied defendant NYC Elegant Improvements, Inc.'s motion for summary judgment dismissing the complaint as against it, and denied plaintiff's cross-motion for partial summary judgment on the Labor Law § 240(1) claim as against defendant.
Labor Law § 240(1) (EDA)
The Appellate Division reversed the Supreme Court finding that the evidence established that defendant was not a general contractor or statutory agent with supervisory authority and control over plaintiff's work. Although the owner admitted in its unverified stricken answer that it retained defendant as general contractor, that statement, even if considered, would constitute an admission only as against the owner as "the pleader," not defendant (Matter of Union Indem. Ins. Co. of N.Y., 89 NY2d 94, 103 [1996]).
PRACTICE POINT: To be treated as a statutory agent, the subcontractor must have the authority (typically via a written agreement) to supervise and control the specific work area involved or the injury-producing work. If the subcontractor’s area of authority is over a different portion of the work or a different area than where the injury occurred, like Defendant, then there can be no liability as they are not a proper labor law defendant under that theory of liability.
Bermeo v Master Plumbing & Heating, Inc.
May 26, 2026
Appellate Division, First Department
Plaintiff, an employee of the general contractor Pelham, was performing ceramic and sheetrock work at a building renovation project when, while retrieving a piece of sheetrock from a materials storage room, he was struck on the head by what he estimated to be a seven-to-nine foot tall piece of steel sprinkler pipe. The pipe was leaning vertically against the wall behind the room's entrance door. Defendant 3GR/427 LLC owned the building and defendant Bettina was the property manager who hired Pelham as the general contractor for the renovation project pursuant to a written agreement. Under a separate agreement, Pelham hired subcontractor Master Plumbing, whose work included installing plumbing and a fire sprinkler system whereas Pelham's work included removing construction debris from the job site. The Supreme Court granted plaintiff's motion for summary judgment on his Labor Law § 240(1) claim as against defendants 3GR/427 LLC and Bettina (together, Owner defendants), denied Master Plumbing’s cross-motion for summary judgment dismissing plaintiff's Labor Law § 200 and common law negligence claims and all cross-claims as against it, and denied the motion of the Owner defendants for summary judgment on their cross-claim against Master Plumbing for contractual indemnification and on their third-party claim against Pelham Construction Corp. (Pelham) for contractual indemnification.
Labor Law § 240(1) (EDA)
The Appellate Division Affirmed the Supreme Court finding that plaintiff established his prima facie entitlement to summary judgment on his Labor Law § 240(1) claim through his unrebutted testimony. It found that the distance that the end of the pole descended before striking plaintiff's face, combined with the pipe's estimated weight, was not de minimis. In opposition, the Owner defendants failed to raise a triable issue of fact.
PRACTICE POINT: De minimis is in the eye of the beholder; there is no bright-line rule. Courts have explicitly rejected a "minimum height" requirement. Instead, the decisive factor is whether the injury resulted from a physically significant elevation differential and the direct force of gravity.
Labor Law § 200 and Common-Law Negligence (PCSM)
The Appellate Division held that summary judgment dismissing plaintiff’s Labor Law § 200 and common-law negligence claims against Master Plumbing was properly denied because issues of fact existed as to whether Master Plumbing created a dangerous condition by leaving an unsecured steel sprinkler pipe leaning against a wall near the storage room door. Although Master Plumbing argued it was entitled to dismissal, plaintiff presented circumstantial evidence that Master Plumbing was the only contractor working with the type of pipe involved, that similar pipes had been observed in or near the storage room before the accident, and that no other workers handled Master Plumbing’s materials after it completed work in the area. As a result, factual issues remained as to whether Master Plumbing negligently created the hazardous condition that caused plaintiff’s injury.
Indemnity Issues in Labor Law (EDA)
The Appellate Division reversed the Supreme Court finding that it should have granted the Owner defendants conditional contractual indemnification on their cross-claim and third-party claim for contractual indemnification against Master Plumbing and Pelham, respectively. Both indemnity provisions were triggered by the fact that the alleged accident arose out of the performance of their work, but only to the extent those claims were caused in "whole or in part by any negligent act or omission" on the part of Master Plumbing and Pelham, or caused by or arose "out of the use of any products, material or equipment furnished by or on behalf of" Master Plumbing. Therefore, a grant of contractual indemnification is conditioned upon the finding of Master Plumbing and Pelham's negligence or a finding that the products, material or equipment was furnished by or on behalf of Master Plumbing and Pelham.
Rosario v C.C. Controlled Combustion Co., Inc.
May 26, 2026
Appellate Division, First Department
While installing an oil tank in the basement of a building owned by 2350 Broadway, Plaintiff was struck by a base piece of the tank when the piece detached and fell from an electric chain hoist, which was owned by his employer. Controlled Combustion, a commercial heating company, was retained to perform work in the building, and it in turn retained plaintiff's employer to install the oil tank. Plaintiff also testified that his employer came up with the plan to move the base piece with a hoist and that all orders of how to do his job came from his employer, not Controlled Combustion. The Supreme Court denied the motion of defendants Controlled Combustion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims as against them and the cross-claims of defendant 2350 Broadway Associates LLC. for common-law indemnification and contribution.
Labor Law § 200 and Common-Law Negligence (PCSM)
The Appellate Division held that plaintiff’s Labor Law § 200 and common-law negligence claims against Controlled Combustion should have been dismissed because the accident arose from the means and methods of plaintiff’s work, and Controlled Combustion established that it did not actually supervise or control the injury-producing work. The Appellate Division held that general oversight, inspections, or authority to stop unsafe work were insufficient to impose liability, and because the accident did not arise from a dangerous premises condition, Controlled Combustion was not required to demonstrate lack of notice of any defect. Accordingly, the Appellate Division reversed the lower court’s decision and granted summary judgment dismissing those claims.
Indemnity Issues in Labor Law (EDA)
The Appellate Division reversed the Supreme Court finding that because plaintiff's accident arose solely out of the means and methods of his work, which was controlled by Plaintiff’s employer, not Controlled Combustion. It was therefore entitled to summary judgment dismissing 2350 Broadway's cross-claims for common-law indemnification and contribution as there was nothing in the record to show that Controlled Combustion was negligent.
Ziobro v Milan House Inc.
May 26, 2026
Appellate Division, First Department
Plaintiff, a construction worker employed in a renovation project at a residential building owned by Milan House Inc. and managed by Brown Harris Stevens Residential Management LLC, alleged that he was injured while removing debris from a basement apartment undergoing renovation. Plaintiff and two coworkers stood in a line on a basement stairwell of approximately ten steps, passing bags of debris up to the street for disposal. Plaintiff stood in the middle of the staircase between his coworkers and allegedly slipped on debris that had accumulated on the stairs after spilling from torn debris bags being handed between workers.
The basement stairwell served as the route workers used to access the renovation area and transport debris from the basement apartment to a truck waiting outside. Evidence showed that the debris bags were torn and unable to contain their contents, causing debris to spill onto the staircase. Workers allegedly did not clean the debris because they were rushing to complete the work while the truck waited on the street. Plaintiff also testified that the stairs were somewhat wet following snowfall the day before the accident, although the primary alleged cause of the incident was the debris accumulation on the stairs.
In the lower court, Milan House and Brown Harris Stevens moved for summary judgment dismissing plaintiff’s Labor Law § 200 and common-law negligence claims, as well as plaintiff’s Labor Law § 241(6) claim predicated on Industrial Code §§ 23-1.7(d), (e)(1), and (e)(2). The Supreme Court granted the motion, dismissing those claims.
Labor Law § 241(6) (JLD)
The Appellate Division held that because plaintiff was standing on the stairs to work with his coworkers, transporting the stairs, the location was a work area under Industrial Code § 23-1.7(e). Defendants also did not establish that the debris on the stairs was integral to the work. However, the trial court properly dismissed the Labor Law § 241(6) claim insofar as predicated on Industrial Code § 23-1.7(d) as the debris that fell was not established as a slipping hazard.
Labor Law § 200 and Common-Law Negligence (MRV)
The First Department held that the lower court properly dismissed the § 200 and common-law negligence claim because the accident arose from the means and methods of the debris removal work undertaken by plaintiff’s employer. Milan House was responsible for the building’s daily operations, but this general oversight and inspection of the route between the apartment undergoing renovation and the building’s service entrance used by plaintiff did not constitute supervisory control over the injury-producing work.
Berardi v 900 Third Ave., L.P.
May 28, 2026
Appellate Division, First Department
Labor Law § 241(6) (JLD)
The Appellate Division affirmed the trial court’s findings, concluding that the evidence shows the plaintiff fell on a tripping hazard in a passageway and plaintiff is entitled to summary judgment under § 23-1.7(e)(1). Deposition testimony of witnesses at the scene, as well as photos of the accident location, establish that plaintiff’s injuries were caused by a hazardous condition in the corridor (a torn and wrinkled tarp.)
A general contractor or owner is not absolved of liability for lack of notice of a dangerous condition or for lack of an opportunity to cure a dangerous condition. The Owner defendant offered no evidence of an inspection routine, nor did they offer evidence of when the tarp was last inspected. No evidence was offered to show that the plaintiff expressly disregarded a specific instruction not to transport the glass on the A-frame cart over the tarped, carpeted route he took.
Chavez v. 127 Eckford Bay, LLC
May 6, 2026
Appellate Division, Second Department
Plaintiff testified that while transporting a 40-gallon plastic trash can filled with wood, metal, ceramic bathroom debris, and sheetrock down the permanent staircase between the second and first floors he was caused to slip and fall on a piece of demolition debris. The Supreme Court denied those branches of the plaintiff's motion which were for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) and so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated on violations of 12 NYCRR 23-1.7(d) and 23-3.3(e) insofar as asserted against the defendants 127 Eckford Bay, LLC, and DPC New York, Inc., and granted those branches of the cross-motion of the defendants 127 Eckford Bay, LLC, and DPC New York, Inc., which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 200 and 240(1) and common-law negligence and so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated on violations of 12 NYCRR 23-1.7(d) and 23-3.3(e) insofar as asserted against them.
 Labor Law § 240(1) (TJE)
The Appellate Division affirmed the trial court’s grant of summary judgment to defendants and dismissal of plaintiff’s Labor Law § 240(1) claims against them. The permanent staircase from which Plaintiff fell was a normal appurtenance to the building and was not designed as a safety device to protect him from an elevation-related risk, nor did his assigned task of carting demolition debris create an elevation-related risk of the kind that safety devices listed under the statute would protect against.
PRACTICE POINT: Labor Law § 240(1) was designed to prevent accidents where harm occurred due to an inadequate safety device and the application of gravity to a person or object. If the task performed at the time of the injury does not involve such an elevation related risk, then no violation of Labor Law § 240(1) can occur.
Labor Law § 241(6) (JLD)
The Appellate Division found that the trial court properly denied the branch of plaintiff’s motion which was for summary judgment as to Industrial Code § 23-1.7(d) as defendants established that the debris upon which plaintiff tripped was an integral part of the ongoing demolition work. However, the trial court should have denied that branch of defendant’s cross motion which was predicated on a violation of Industrial Code §23-3.3(e) as neither party established whether the trash can used by the plaintiff was the equivalent of a bucket as described in the regulation. Furthermore, there are triable issues of fact as to whether the subject trash can was defective.
 Labor Law § 200 and Common-Law Negligence (AMC)
The Appellate Division held that because Defendants Eckford and DPC failed to eliminate all triable issues of fact regarding whether they had the authority to supervise Plaintiff's work; whether they had actual or constructive notice of the dangerous condition that caused the accident; and whether the dangerous condition that caused the accident to occur was the unavoidable and inherent result of the ongoing demolition work, Defendants’ motion for summary judgment dismissing the causes of action sounding in Labor Law § 200 and common-law negligence should be denied.
Rolle v JCDecaux St. Furniture N.Y., LLC
May 6, 2026
Appellate Division, Second Department
Plaintiff allegedly was injured when he was power-washing a bus shelter and an interior panel fell from the bus shelter and hit his head. The Supreme Court denied Plaintiff's motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendants JCDecaux Street Furniture New York, LLC, CEMUSA NY, LLC, City of New York, and New York City Department of Transportation and granted those branches of the cross-motion of the defendants JCDecaux Street Furniture New York, LLC, CEMUSA NY, LLC, City of New York, and New York City Department of Transportation which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against them and the cause of action alleging a violation of Labor Law § 200 insofar as asserted against the defendants City of New York and New York City Department of Transportation.
Labor Law § 240(1) (TJE)
The Appellate division affirmed the trial Court’s dismissal of plaintiff’s Labor Law § 240(1) claim. The extraordinary protections of Labor Law § 240(1) do not automatically apply simply because an object fell and injured the plaintiff. Rather, a plaintiff has the burden to show that the object fell because of the absence or inadequacy of a safety device as listed in the statute. The panel that fell on plaintiff was not being hoisted or secured nor did it require securing for power-washing the bus shelter. Defendants established that the accident was not caused by an elevation-related hazard, and plaintiff failed to raise a triable issue in fact in opposition. As a result, the Trial Court properly dismissed the Labor Law § 240(1) claim as plaintiff failed to meet his burden.
PRACTICE POINT: Plaintiff has the burden to show that a falling object fell due to the absence or inadequacy of a safety device listed in Labor Law § 240(1).
Labor Law § 241(6) (JLD)
The Appellate Division held that the trial court should have denied those branches of defendant’s cross-motion which were a violation of § 241(6) as untimely.
Labor Law § 200 and Common-Law Negligence (AMC)
The Appellate Division held that the Trial Court should have denied those branches of the Defendants' cross-motion which were for summary judgment dismissing the cause of action alleging a violation of Labor Law § 200 insofar as asserted against the City and the DOT as untimely.
Zhivov v Kings Bay Hous. Co., Inc.
May 6, 2026
Appellate Division, Second Department
Plaintiff allegedly was injured while doing demolition work; he fell from an unsecured A-frame ladder due to an uneven floor. The Supreme Court granted that branch of the motion of the Plaintiff which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendant Kings Bay Housing Co., Inc., and denied those branches of the cross-motion of the defendant Kings Bay Housing Co., Inc., which were for summary judgment dismissing the causes of action alleging common-law negligence and a violation of Labor Law § 200 insofar as asserted against it. The Supreme Court also denied that branch of the motion of the Plaintiff which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendant Kings Bay Section One Land, LLC, and granted that branch of the motion of the defendant Kings Bay Section One Land, LLC, which was for summary judgment dismissing the amended complaint insofar as asserted against it.
Labor Law § 240(1) (TJE)
The Appellate division reversed the Trial Court’s dismissal of plaintiff’s amended complaint against Kings Bay Section One Land, LLC. Plaintiff had met his burden and was entitled to a presumption that Labor Law § 240(1) was violated based on his deposition testimony that he had been working on a ladder, when it started shaking, which caused him to fall. In opposition, defendants raised a triable issue of fact by submitting video evidence which showed the plaintiff leaving the building under his own power and without any sign of injury, and deposition testimony of his boss. As a result, the trial court’s dismissal of plaintiff’s Labor Law § 240(1) claim was in error.
PRACTICE POINT: Plaintiff meets his burden of establishing a violation of Labor Law § 240(1) based on his own testimony that the ladder shifted and caused him to fall and become injured. While Defendants must offer evidence in opposition to create a triable issue of fact, this does not result in a dismissal of Plaintiff’s claims even if Defendant’s evidence in opposition is seemingly more credible.
Labor Law § 200 and Common-Law Negligence (AMC)
The Appellate Division affirmed the Trial Courts decision denying Kings Bay Housing Co.’s cross-motion for summary judgment dismissing the causes of action sounding in common-law negligence and Labor Law § 200. Kings Bay failed to eliminate all triable issues of fact including that it lacked constructive notice of an allegedly dangerous condition that contributed to Plaintiff's accident; and failed to offer proof as to when the apartment floor was last inspected or viewed by maintenance staff such that the dangerous condition could have been discovered upon a reasonable inspection and did not offer any proof demonstrating that the defect would not have been discovered upon a reasonable inspection.
Correa v NY Developers & Mgt. LLC
May 20, 2026
Appellate Division, Second Department
Plaintiff allegedly was injured when he fell from a scaffold while assisting a plumber on a worksite. The Supreme Court denied the Plaintiff’s motion for summary judgment pursuant to Labor Law § 240(1).
Labor Law § 240(1) (TJE)
The Appellate Division found that plaintiff established a violation of Labor Law § 240(1) through his deposition testimony that he was injured when he fell from a scaffold that lacked safety rails and was not otherwise provided an appropriate safety device, and that the kickback from the hammer drill caused the scaffold to fall and collapse. Defendants failed to raise any triable fact in opposition. As a result, the Trial Court should have granted plaintiff’s summary judgment motion on Labor Law § 240(1) liability.
PRACTICE POINT: Plaintiff meets his burden of establishing a violation of Labor Law § 240(1) by providing evidence that the safety device was inadequate and led to his injuries. In order to prevent an award of summary judgment on liability, Defendants must offer material facts in opposition.
Moreno v Hossain
May 20, 2026
Appellate Division, Second Department
Plaintiff claims that the accident occurred when, as he and his supervisor were lifting a mirror to remove it from a wall in a second-floor rental apartment of the premises, the upper part of the mirror broke off and struck the Plaintiff in his hand. The Supreme Court granted Defendant’s motion dismissing the causes of action sounding in Labor Law §§ 240(1) and 241(6).
Labor Law § 240(1) (TJE)
According to the record, the upper floor where the accident happened was a rental unit with an occupant who paid rent to the Defendants. As a result of the identified commercial purpose, a determination of whether the exemption applies must be made on the owners’ intentions at the time of the injury. The Appellate division found that defendants failed to eliminate triable issues of fact as to whether the homeowner’s exemption to Labor Law § 240(1) applied, including whether the work performed by plaintiff related to a commercial purpose of the premises. As a result, the appellate division reversed the trial Court and denied defendants’ motions for summary judgment on Labor Law § 240(1).
PRACTICE POINT: The Homeowner’s exemption applies to owners of one- or two-family dwellings who contract for but do not direct or control the work. If the property has a commercial use, then the Court must conduct a fact inquiry into whether or not the work performed was primarily to advance the commercial or residential uses of the property.
Labor Law § 241(6) (JLD)
The Appellate Division found that the defendants failed to eliminate any triable issues of fact as to whether they were entitled to the homeowner’s exemption to § 241(6), including whether the premises had a commercial purpose and whether the work the plaintiff performed related to a commercial purpose of the premises.
Ordonez v NY Developers & Mgt. LLC
May 20, 2026
Appellate Division, Second Department
Plaintiff alleges that he was injured when he was working at an elevation at a construction site owned by Grand Concourse when he fell. The Supreme Court denied the Plaintiff’s motion for summary judgment pursuant to Labor Law § 240(1).
Labor Law § 240(1) (TJE)
The record contained conflicting testimony as to the manner in which the accident occurred and the height of the elevation from which the plaintiff allegedly fell. As a result, the plaintiff failed to meet his prima facie burden and the Appellate Division affirmed the trial court’s denial of plaintiff’s summary judgment motion on Labor Law § 240(1).
PRACTICE POINT: Conflicting testimony as to the manner in which the accident occurred generally creates a question of fact as to whether Labor Law § 240(1) was violated.
New York Industrial Code Regulations (EDA)
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Regulation § 23–1.28 Hand-propelled vehicles
(b) Wheels and handles. Wheels of hand-propelled vehicles shall be maintained free-running and well secured to the frames of the vehicles. Buggy handles shall not extend beyond the wheels on either side.
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Regulation § 23–1.28(b) is sufficiently specific to support a Labor Law § 241(6) cause of action (Picchione v Sweet Const. Corp., 60 AD3d 510, 875 NYS2d 42 [1st Dept. 2009]; Brasch v Yonkers Const. Co., 298 AD2d 345, 751 NYS2d 200 (2d Dept 2002), recalled, vacated and superseded on reargument on other grounds, 306 AD2d 508, 762 NYS2d 626 (2d Dept 2003) (§ 23-1.28(b) is sufficiently specific to support a Labor Law § 241(6) cause of action); Freitas v New York City Transit Authority, 249 AD2d 184, 672 NYS2d 101 (1st Dept 1998) (same).
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Ahern v NYU Langone Medical Center, 147 AD3d 537, 48 NYS3d 39 (1st Dept 2017) (triable issue of fact as to application of § 23-1.28[b], which requires that the “[w]heels of hand-propelled vehicles shall be maintained free-running and well secured to the frames of the vehicles”); Garcia v 95 Wall Associates, LLC, 116 AD3d 413, 983 NYS2d 237 (1st Dept 2014) (§ 23-1.28(b) sufficiently specific to support Labor Law § 241(6) cause of action, but inapplicable where accident not caused by defect in cart’s wheels).
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But see Lazar v Ontario, 221 AD2d 916, 634 NYS2d 595 (4th Dept 1995) (§ 23-1.28(b) is general directive that cannot serve as predicate for liability under Labor Law § 241(6)).
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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
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Patrice C. S. Melville
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Phone: 716-849-8900, Fax: 716-855-0874
Long Island
25 Melville Park Road, Suite 260, Melville, NY 11747
Phone: 631-465-0700, Fax: 631-465-0313
Rochester
100 Office Park Way, Pittsford, NY 14534
Phone: 585-454-6850, Fax: 585-270-4572
New Hampshire
11 South Main Street, Suite 200, Concord, NH 03301
Massachusetts
444 Washington Street, Suite 506, Woburn, MA 01801
Albany
Phone: 518-641-0398
Additional Offices
Albion | Amherst | Hartford, CT | Englewood, NJ | Niagara Falls
Hurwitz Fine P.C. is a full-service law firm providing legal services
throughout the State of New York
www.hurwitzfine.com
© 2026, Hurwitz Fine P.C. All Rights Reserved
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