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Volume XV, No. 8
Wednesday, July 1, 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.
I have had several conversations with my contemporaries over the past few weeks, during which we were all discussing "the good old days" when the courts basically shut down from the Fourth of July to Labor Day. While you would still argue a few motions, it was also a time to catch up on depositions, reports, and all of the other lurking work. Now, we seem to go at full speed all year long. As Bob Dylan said, “the times they are a-changin”. I just settled one case for this month, but I have back-to-back trials scheduled for August and September. Virtual appearances for conferences, mediations, and some motions mean that younger attorneys will never know opposing counsel on their files the way we did. We used to spend time waiting for conferences to begin, discussing not only the case we were there on, but also the other cases we had together. Is this brave new world better or worse? I'm not sure, but it is certainly different.
We have 31 cases summarized and, more importantly, analyzed for you this month. That may well be a record.
Pay attention to Cespedes v El-Kam Lexington Ave. LLC as it does a good job of describing why the weight of an object is a factor in the determination if whether or not an object in need of securing caused an injury based on a significant elevation differential. This case brings both Runner and Wilinski into the explanation.
Join Labor Law attorney Ashley Cuneo for our monthly Labor Law Case of the Month webinar, featuring Villanueva v. J.T. Magen & Co., 2026 N.Y. App. Div. LEXIS 3806 (2026).
This session will examine the strategic use of medical records—and, in particular, a plaintiff's own statements—in defending summary judgment motions and at trial. Ashley will discuss the evidentiary requirements for admissibility as business records and admissions, as well as the practical considerations for effectively using these records to strengthen the defense. Attendees will gain valuable insight into this important evidentiary issue and its impact on Labor Law litigation. To register, click here.
For our first Photo of the Month, we have a roofer, the neighbor of the property owner, who voluntarily came over to help repair the roof of an apartment building using a carefully constructed arrangement of ladders.
Take a close look at the ladder the plaintiff is standing on. It is positioned at an angle on the roof and appears to be in immediate danger of slipping off. The ladder is being held in place by a co-worker, who is himself standing on another ladder. The base of that ladder is balanced on yet another ladder, which is perched on the peak of the roof below. The balanced ladder is not merely resting in place, its opposite end is tied down with what appears to be an old clothesline and is being used as a lever to support both the plaintiff's weight and the ladder he is standing on.
Just look at this photo.
The owner of the apartment building was walking by and saw that his neighbor and the neighbor's employee had constructed this setup. He was very nervous about it, concerned that it could cause the plaintiff to fall and suffer serious injuries. Then he recalled that he was a devoted reader of Labor Law Pointers and decided that decided that he did not want anyone to think he had supervised, directed, or controlled the work. so he walked away without speaking to anyone. As so often happens in our scenarios, the ladder the plaintiff was standing on slid out from under him. He fell, striking his assistant on the way down, and both men were injured. A § 240(1) case?
Where to start? The plaintiff neighbor will not qualify as a plaintiff as he was not a person so employed, but rather a volunteer and thus may not bring a § 240(1) claim. His assistant, a paid employee, was a person so employed, and thus is a valid plaintiff. Even though his boss was not getting paid, he was still working. The property was commercial in nature and thus there is no single-family exemption. No matter what the owner thought would happen due to a lack of attention when reading Labor Law Pointers. The overall project was a repair, a covered activity, the injury was caused by the effects of gravity a thus the employee has a valid § 240(1) claim.
No attempt at a sole proximate cause defense will work here as there is not an expert in the world who would describe that as an appropriate safety device.
I diverge here, looking at this photo I find it hard to see how anyone could do something more dangerous or ill conceived. That was before I arrived home one evening a few weeks ago.
We were having the living room drywall repaired and painted. The ceilings are very high, but the contractor had scaffolding and other equipment. I also left the house before they arrived and came home only when they had left. There was no way I was going to provide any direction or supervision.
As I walked down the stairs, after the workers had left, I saw what is shown in the photo below.
The workers had decided to use a board and place it across from the railing on the stairs to the support in the living room to paint something. In case you do not see just how high above the ground this was look at the next picture.
Yes, in my own house, after 25 plus years handling almost exclusively Labor Law cases, a person so employed was not using an appropriate safety device, doing a repair and working at a substantial height. How could this happen?
To be honest I have no idea how they got it out there in the first place, and fortunately when I saw it, they were done working out there.
I think that even with my knowledge of the Single-Family Homeowner Exemption, I would have told them not to do it that way, it just looks way too dangerous.
That’s it for this month, try and stay cool 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]
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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Graves v Sava Serbian Orthodox Church
June 2 2026
Appellate Division, First Department
Plaintiff fell 11 feet through an unprotected opening. G.P.J. O’Donoghue Contracting Corp.’s (GPJ) vice president acknowledged that GPJ was responsible for covering the opening with plywood and that no anchor points were available for a safety harness.
The Supreme Court granted Plaintiff’s motion for partial summary judgment on his Labor Law 240(1) claim and conditionally granted defendant Saint Sava's motion for summary judgment on its claim for contractual indemnification against GPJ but denied summary judgment to Saint Sava on its claim for common-law indemnification against GPJ as academic.
 Labor Law § 240(1) (MRV)
The First Department held that the lower court properly found that plaintiff established prima facie entitlement to partial summary judgment on Labor Law 240(1) by showing that plaintiff fell 11 feet through an unprotected opening. Defendants failed to raise an issue of fact as to whether plaintiff was the sole proximate cause of this accident in response.
PRACTICE POINT: A sole proximate cause defense will fail where the record established that an unprotected opening was supposed to be covered by a defendant and that the site lacked anchor points to allow use of a safety harness because these facts eliminate the possibility that the plaintiff was the sole proximate cause of the fall.
 Indemnity Issues in Labor Law (EDA)
The Appellate Division reversed the Supreme Court finding that the indemnification clause does not violate General Obligations Law § 5-322.1(1) since Saint Sava's liability for which indemnification is sought is "vicarious and purely statutory," there being no evidence that Saint Sava was actively negligent and plaintiff not having opposed Saint Sava's motion to dismiss the negligence-based causes of action. GPJ was negligent since, GPJ's vice president admitted that GPJ was responsible for site safety, that the opening Graves fell into should have been covered with plywood, that GPJ was responsible for covering that opening, and that an appropriate fall protection system with tie-off points was not in place near the opening.
Krifca v Bronx-Lebanon Special Care Ctr., Inc.
June 2 2026
Appellate Division, First Department
Plaintiff was employed by Flatiron Contracting Solutions as a foreman and roofing mechanic on a roof-replacement project at a building owned by Bronx-Lebanon Special Care Center, Inc. and The Bronx-Lebanon Hospital Center, collectively BLHC. Allied Building Products Corp. delivered roofing materials by boom truck. As Plaintiff attempted to unhook a belt from a hoisted pallet, the belt caught underneath the pallet. The operator re-engaged the boom before the load was fully unhooked and without receiving a signal it should be lifted, causing the load to rise several feet and fall onto Plaintiff.
The Trial Court denied BLHC’s summary judgment motion to dismiss the Labor Law § 240(1) claim and the Labor Law § 241(6) claim predicated on Industrial Code §§ 23-8.1(f)(1)(iv), 23-8.1(f)(2)(i), and 23-8.1(f)(5).
The Trial Court granted Plaintiffs’ summary judgment motion on liability under Labor Law § 240(1) and Labor Law § 241(6) predicated on Industrial Code § 23-8.1(f)(1)(iv).
The Trial Court also denied BLHC’s summary judgment motion seeking common-law indemnification against Allied, and denied Flatiron’s summary judgment motion seeking dismissal of Allied's third-party complaint.
Labor Law § 240(1) (MRV)
The First Department held the lower court properly awarded summary judgment in favor of plaintiff on 240(1). Plaintiff was engaged in a covered activity when he was accepting the delivery of roofing materials during an ongoing project to replace a roof. The record also established that the roof materials fell while they were being hoisted because the belts securing the materials was inadequate.
PRACTICE POINT: A plaintiff is not obligated to demonstrate the type of safety device that should have been provided to secure a falling object, so this is not a viable defense to summary judgment in a falling object case.
Indemnity Issues in Labor Law (EDA)
The Appellate Division reversed the Supreme Court finding that BLHC should have been awarded conditional summary judgment on its common-law indemnification claim against Allied because BLHC established its freedom from negligence and is only vicariously liable (see Farina v Plaza Constr. Co., 238 AD2d 158, 158 [1st Dept 1997]).
Suazo v 501 Madison-Sutton LLC
June 2, 2026
Appellate Division, First Department
Plaintiff, an Atlantic Interiors, Inc. employee, fell from a ladder while performing spackling and tape work on drywall at a building owned by 501 Madison-Sutton LLC and 501 Madison Avenue LLC. General contractor GC Contractors, Inc. subcontracted the drywall work to Superior Acoustics, Inc., which orally subcontracted certain drywall-installation work to Atlantic.
The Trial Court granted the 501 Defendants and GC Contractors summary judgment on contractual and common-law claims against Superior, granted dismissal of Superior’s contractual indemnification claim against Atlantic, and denied Superior’s summary judgment motion on contractual indemnification.
Indemnity Issues in Labor Law (EDA)
The Appellate Division partially reversed the Supreme Court finding that there are issues of fact as to the negligence of Superior and GC Contractors, and therefore common law indemnification cannot be imposed on Superior.
The Appellate Division also found a triable issue of fact concerning GC's negligent failure to monitor the safety of the worksite. A visibly defective ladder available for use on the premises constitutes a dangerous condition. Thus, the Appellate Division found issues of fact as to whether GC Contractors had actual or constructive notice of the defective ladder and could have remedied it.
The appellate reversed the Supreme Court finding that the broad contractual indemnification provision contained in the purchase order between GC Contractors and Superior applied to plaintiff's accident. The indemnification agreement was triggered by virtue of the accident occurring in the course of plaintiff's work. However, given that there is an issue of fact concerning GC Contractors' negligence, the Supreme court should have conditionally granted GC Contractors' contractual indemnification claim (see Madkins v 22 Little W. 12th St., LLC, 191 AD3d 434, 436 [1st Dept 2021]).
The Appellate Division affirmed the Supreme Court finding that there was no indemnification agreement between Superior and Atlantic in effect at the time of the accident and no evidence that the indemnification provision contained in the parties' written agreement executed approximately one month after the accident was intended to apply retroactively (see Podhaskie v Seventh Chelsea Assoc., 3 AD3d 361, 362 [1st Dept 2004]). The post-accident agreement was “devoid of any language demonstrating an intention by the parties that it be retroactively applied" (Temmel v 1515 Broadway Assoc., L.P., 18 AD3d 364, 365 [1st Dept 2005]; see Perez Juarez v Rye Depot Plaza, LLC, 140 AD3d 464, 465 [1st Dept 2016]).
Jun Lim Chang v 37 Plaza LLC
June 2, 2026
Appellate Division, First Department
Plaintiff was working with a forklift supplied by H Point Inc. When the forklift stalled, Plaintiff attempted to repair it, lost his balance, and fell through an opening in the second floor that H Point had created. The Trial Court granted Plaintiff’s motion for summary judgment against Ransd, the general contractor, based on Labor Law 240(1) and 241(6) and denied Ransd’s motion in its entirety.
Labor Law § 240(1) (MRV)
The First Department held that the lower court properly determined that Ransd was the general contractor at the time of the decedent’s accident for purposes of Labor Law liability.
PRACTICE POINT: To create an issue of fact on whether a party is a general contractor under the Labor Law, it is critical that said evidence is consistent in the record. If the alleged general contractor’s deposition establishes that he is the general contractor, he will not be able to create a genuine issue of fact on that issue with an affidavit contradicting his prior testimony.
Labor Law § 200 and Common-Law Negligence (EDA)
The Appellate Division affirmed the Supreme Court finding that questions of fact exist as to whether Ransd could be held liable for common-law negligence and a violation of Labor Law § 200 based on its having had notice of a defective condition since Ransd's owner testified that either Ransd or H Point installed the opening. The court could not determine whether Ransd had constructive notice of the opening based on its duty to make reasonable inspections to detect unsafe conditions, because the record did not reflect when the opening was made.
Indemnity Issues in Labor Law (EDA)
The Appellate Division Affirmed the Supreme Court finding that due to the questions of fact above preventing summary judgment on the Labor Law § 200 and Common-Law Negligence claims Ransd was properly denied summary judgment against H Point.
The Appellate Division did reverse the Supreme Court finding that while Ransd is not entitled to summary judgment on its common-law indemnification against H Point, the court should have dismissed H Point's common-law indemnification cross-claim against Ransd. H Point did not establish that it was free from negligence. The work precipitating the injury was directed and supervised by plaintiff's decedent. H Point also provided the forklift which stalled, and when decedent tried to fix it, he lost his balance and fell through an opening in the second floor that H Point had created.
Finally the Appellate Division affirmed the Supreme Court finding that Ransd presented no evidence of negligence on the part of 37 Plaza and therefore the court properly declined to dismiss 37 Plaza's cross-claim for common-law indemnification against Ransd. It also affirmed the denial of Ransd's motion for summary judgment dismissing 37 Plaza and H Point's cross-claims for contribution because if Ransd is found negligent, it will be responsible for its proportionate share of liability.
 Labor Law § 241(6) (RHF)
In light of the Court’s finding of liability pursuant to Labor Law § 240(1), the Court indicated that analysis of plaintiff’s § 241(6) was rendered academic.
Lapinski v MIP One Wall St. Acquisition LLC
June 2, 2026
Appellate Division, First Department
Plaintiff worked for Independence Carting, which contracted with general contractor J.T. Magen & Company Inc. to provide Saturday carting services at an active construction site owned by MIP One Wall Street Acquisition LLC. After J.T. Magen laborers directed Plaintiff to reposition his garbage truck, Plaintiff exited the truck to check its position and was struck on the head by an object, alleged to be a pallet or skid, that fell from an elevated platform next to the truck.
The Trial Court granted summary judgment dismissing Plaintiff’s Labor Law 240(1) and 241(6) causes of action.
Labor Law § 240(1) (MRV)
The First Department held that plaintiff was entitled to summary judgment on his 240(1) claim because the record established that plaintiff was hit on the head by a falling object at the construction site and that defendants did not provide safety equipment to drivers performing plaintiff’s task on the site.
PRACTICE POINT: Note that the list of covered activities can appear broader than it is delineated in the statute. When considering whether a plaintiff is engaged in a “covered activity” under the statute, the courts will consider whether plaintiff’s employer was contracted to perform the kind of work covered by the statute, rather than the specific task plaintiff was performing at the time of the accident.
Labor Law § 241(6) (RHF)
While the 1st Department unanimously reversed the trial court’s decision to dismiss plaintiff’s Labor Law § 240(1) § 241(6) causes of action and instead granted plaintiff’s motion for summary judgment pursuant to § 240(1), the appellate court did not address the applicability of § 241(6) under the facts presented. Such analysis was not required given the absolute liability imposed pursuant to § 240(1).
Perez v Parkside Terrace, L.P.
June 9, 2026
Appellate Division, First Department
Plaintiff, an employee of V&P, was fixing ceiling framing above a bathtub. Without an adequate safety device, Plaintiff leaned a closed A-frame ladder against the bathroom wall and placed it inside the tub. The ladder fell, causing the accident.
The Trial Court granted Plaintiff’s summary judgment motion on the Labor Law § 240(1) claim and denied the Parkside defendants’ summary judgment motion on their indemnification claims against plumbing subcontractor Ro-Sal Plumbing & Heating Inc.
Labor Law § 240(1) (MRV)
The Appellate Division held plaintiff established entitlement to summary judgment on his 240(1) claim by demonstrating that the defendants’ failure to provide an adequate safety device to allow him to perform his work faming the ceiling over a bathtub.
PRACTICE POINT: Evidence that plaintiff’s ladder usage failed to meet OSHA regulations and proper ladder procedure is insufficient to raise a question of fact on whether plaintiff is the sole proximate cause of an accident.
Indemnity Issues in Labor Law (EDA)
The Appellate Division reversed the Supreme Court finding that it should have dismissed the Parkside defendants' cross-claims against Ro-Sal for contractual indemnification because plaintiff's injuries did not arise from Ro-Sal's work so as to trigger the indemnity clause. The fact that Ro-Sal performed plumbing and insulation work before V&P, plaintiff's employer, began its drywall installation does not mean that plaintiff's accident arose out of Ro-Sal's work.
Further, there was no "evidence from which a jury might find negligence" on Ro-Sal's part and "apportion fault" between the Parkside defendants and Ro-Sal. Plaintiff testified that the bathtub was full of debris, and that he moved the bigger pieces of debris but not the smaller ones so that he could place his ladder inside the tub, which he was able to do once the larger pieces were moved. While he testified that the ladder might have fallen because it was sitting on a screw at the bottom of the bathtub, he admitted he did not know why the ladder fell and said that he did not see any debris after he fell. Accordingly, since is it "just as likely" that the ladder's fall could have "been caused by some other factor," a "determination by the trier of fact" that a screw caused the ladder to fall "would be based on sheer speculation" Scivoletti v New York Mercantile Exch., Inc., 38 AD3d 326, 327 [1st Dept 2007], lv denied 9 NY3d 802 [2007].
Sinera v Bedford-Webster LLC
June 9, 2026
Appellate Division, First Department
Plaintiff was injured when a garage floor collapsed. The collapse resulted from the combined weight of a moving forklift and stored construction materials, together with the floor’s weakened condition. Joy Construction Corp. used the building which was owned by Bedford-Webster LLC to store and move materials and equipment for a nearby construction project.
After a jury trial, the Trial Court denied 3170 Webster Avenue LLC and Joy’s motion to overturn the jury’s finding that Webster was liable under Labor Law § 241(6). The court also denied their requests to dismiss Bedford’s contractual indemnification claim against Joy and to hold a collateral-source hearing concerning future medical expenses. The Trial Court also granted a declaration that Bedford was entitled to contractual indemnification from Joy and struck Joy's affirmative defense based on General Obligations Law § 5-322.1.
Labor Law § 241(6) (RHF)
According to expert proof adduced at trial, the floor collapse occurred because the floor was overloaded with weight beyond the structural capacity of the floor. Weight was attributed to stored materials and the forklift plaintiff was operating at the time of the collapse. Industrial Code section 23-2.1(a)(2) states that:
“Material and equipment shall not be stored upon any floor, platform or scaffold in such quantity or of such weight as to exceed the safe carrying capacity of such floor, platform or scaffold. Material and equipment shall not be placed or stored so close to any edge of a floor, platform or scaffold as to endanger any person beneath such edge”.
The defendants’ motion to vacate the jury’s § 241(6) liability determination was denied based on the expert testimony that the floor collapsed due to the weight of a moving forklift and stored materials. It should be noted that while § 241(6) may include an apportionment of liability to the plaintiff, in this case, plaintiff’s involvement in simply driving the forklift likely did not support a liability apportionment to him. However, this decision was silent as to the issue of apportionment.
Labor Law § 200 and Common-Law Negligence (EDA)
The Appellate Division affirmed the trial court finding that, although not reflected in the verdict sheet, the court's modified charge regarding the Labor Law § 200 claim properly instructed the jury that Bedford, as the property owner, was liable for any dangerous condition that could have been discovered by reasonable inspection. The jury's findings that Bedford was negligent under Labor Law § 200 and 30% at fault are supported by a valid line of reasoning and a fair interpretation of the evidence that the collapse was caused by both the storage of materials on top of the floor and the floor's weakened condition.
The awards for past and future pain and suffering, future lost wages, and future medical costs do not deviate materially from reasonable compensation in light of plaintiff's conservative course of treatment relying on over-the-counter pain medication and ceasing epidural injections and physical therapy several years before trial, the conflicting expert testimony regarding his condition and prognosis, his age of 49 at the time of trial, and his occupation as a construction laborer (see Brown v Voda Realty LLC, 228 AD3d 450, 452 [1st Dept 2024]; Donlon v City of New York, 284 AD2d 13, 16 [1st Dept 2001]). It was within the jury's province to credit or reject portions of the testimony of plaintiff's economic expert, and its departure from the expert's calculations for future lost wages and medical costs does not render the verdict against the weight of the evidence (see Morrobel v Alicea, 236 AD3d 571, 572-573 [1st Dept 2025])
Webster and Joy failed to show with "reasonable certainty" that plaintiff's medical expenses will be replaced by healthcare benefits available under the Affordable Care Act (CPLR 4545[a]).
Indemnity Issues in Labor Law (EDA)
The Appellate Division overruled the Supreme Court finding that the parties' license agreement permitting Joy to store and move construction materials and equipment in Bedford's garage building adjacent to the construction site, was not a construction contract falling within the scope of General Obligations Law § 5-322.1(1). The agreement provided that Joy shall indemnify Bedford for "all" claims "arising out of or resulting from" Joy's "use" of the property or "construction-related activities which occur" on the property in connection with Webster's construction project. This language demonstrates the parties' intent that Joy indemnify Bedford for all claims connected to Joy's use of the property, including those attributable to Bedford's negligence (see New York Tel. Co. v Gulf Oil Corp., 203 AD2d 26, 27 [1st Dept 1994]). Accordingly, the court should have found that Bedford was entitled to full contractual indemnification for its apportioned share of the fault.
Villanueva v J.T. Magen & Co. Inc.
June 9, 2026
Appellate Division, First Department
Plaintiff was moving two stacked ducts with coworkers when an approximately 350-pound duct allegedly fell and struck him, knocking him down. The ducts stood more than eight feet high and were not secured to each other or to the wooden dollies. Defendants submitted medical records indicating instead that Plaintiff was injured while lifting or carrying the duct after it rotated out of the workers’ grip.
The Trial court denied Plaintiff’s summary judgment motion on liability pursuant to Labor Law 240(1).
Labor Law § 240(1) (MRV)
The Appellate Division held that plaintiff established his prima facie entitlement to summary judgment on his 240(1) claim by showing a 350-pound duct was not strapped down and struck him. However, defendants were able to raise a triable issue of fact as to how the accident occurred and whether it involved an elevation-related hazard by relying on Plaintiff’s medical records.
PRACTICE POINT: Make sure you are combing through Plaintiff’s medical records when attempting to defeat summary judgment on a 240(1) claim as there may be useful descriptions of how the accident occurred sufficient to create a question of fact. If there are medical records that are affirmed under penalty of perjury and germane to plaintiff’s diagnosis, they are admissible under the business record exception to hearsay. You can also rely on the Villanueva case to argue that the records are admissible as an admission from plaintiff.
Martin v Poe Affilliates, L.P.
June 11, 2026
Appellate Division, First Department
Plaintiff was employed by SMC General Contracting, Inc. and worked on a renovation project at a building owned by Poe Affiliates L.P. and managed by Schur Management Co., Ltd.
The Trial Court granted Plaintiff’s motion for summary judgment on his Labor Law 240(1) claim and denied Defendants’ summary judgment motions seeking to dismiss the complaint.
Labor Law § 240(1) (MRV)
The First Department affirmed the lower court’s order granting summary judgment on 240(1) in favor of plaintiff because defendants failed to prove as a matter of law that plaintiff’s employer was defendants’ alter ego sufficient to bar plaintiff’s claim via the exclusivity provisions of the Workers’ Compensation Law. Additionally, defendant Schur Management failed to demonstrate that it was not a proper Labor Law defendant because the record established that it was Poe’s statutory agent and Poe delegated the authority to control and supervise this renovation project to Schlur Management.
PRACTICE POINT: When alleging that multiple businesses function as one entity, you must provide evidence that demonstrates the businesses are so close in their operating relationship that they are indistinct from one another. It is not sufficient for the businesses to be located in the same building or on the same insurance policy. Rather, you must present evidence of shared business purposes, offices, administrative personnel, bank accounts, or commingled funds.
Ochoa v 3475 Third Ave. Hous. Dev. Fund Corp.
June 11, 2026
Appellate Division, First Department
Plaintiff, a plumber, was retrieving materials from a basement for ongoing sprinkler-installation work. While descending an unsecured extension ladder leaned against a wall, the ladder suddenly slid backward and fell, causing Plaintiff to fall to the ground with it.
The Trial Court granted Plaintiff’s Labor Law 240(1) claim on liability and denied Defendants’ motions seeking to dismiss his Labor Law 240(1) and 241(6) claims.
Labor Law § 240(1) (MRV)
The Appellate Division held the plaintiff established prima facie entitlement to summary judgment on his 240(1) claim with his testimony that the unsecured extension ladder used by plaintiff slid and collapsed under him while plaintiff was using it. In opposition, defendants argued that plaintiff was not engaged in a protected activity because he was retrieving materials at the time of the accident. Defendants also argued that plaintiff was the sole proximate cause of this accident because he could have used the main entrance on the first floor to walk out of the building rather than the ladder shortcut.
PRACTICE POINT: Note that a plaintiff’s presence in the area of the worksite where he is not supposed to be only amounts to comparative negligence and is not a defense to a 240(1) claim. It is not sufficient to argue that a plaintiff could have used a different entrance for access. To oppose summary judgment based on sole proximate cause, the evidence would have to show that plaintiff was instructed to specifically use one entrance rather than a ladder shortcut or otherwise knew he was not supposed to use a ladder shortcut.
Labor Law § 241(6) (RHF)
The trial court denied defendants’ cross-motions for summary judgment. The First Department did not disturb that portion of the order on appeal and provided no analysis. The issue of § 241(6) liability was rendered academic by the finding of liability under § 240(1).
Woodward v J.T. Magen & Co. Inc.
June 11, 2026
Appellate Division, First Department
Plaintiff exited the only staircase leading to a mezzanine and tripped on a cutout or inlay in the floor. Witnesses described the area as a hallway or corridor connecting two larger spaces, and Plaintiff had to pass through it to reach his assigned workspace.
The Trial Court denied Plaintiff’s motion for summary judgment based on Industrial Code § 23-1.7(e)(1) and granted Defendants’ summary judgment motion dismissing that claim.
Labor Law § 241(6) (RHF)
The First Department reversed the ruling of the trial court dismissing plaintiff’s § 241(6) cause of action on the grounds that liability under 23-1.7(e)(1) may arise not only where plaintiff falls due to an accumulation of debris, but also where there are conditions which could cause tripping. The “conditions” referred to by the Court involved conflicting evidence regarding the narrowing of a corridor by placement of scaffolding and other materials which may have contributed to plaintiff tripping over a cutout/inlay in the floor. Based on the conflicting evidence, the court found a question of fact sufficient to deny the defense motion for summary judgment.
Carranza-Rafael v LRC Constr. LLC
June 11, 2026
Appellate Division, First Department
Plaintiff, an employee of N&J Drywall Corp., was installing sheetrock while standing on an 8-to-10-foot A-frame ladder. The ladder suddenly moved sideways, causing Plaintiff to fall and injure his neck and back and cut his left hand.
The Trial Court granted Plaintiff’s Labor Law 240(1) claim on liability, and denied Defendants’ motion to amend their answer to add a fraud defense based on a Federal RICO lawsuit involving Plaintiff’s law firm.
Labor Law § 240(1) (MRV)
The Appellate Division held plaintiff established prima facie entitlement to summary judgment on 240(1) by submitting his testimony that he fell from an unsecured ladder while installing sheetrock. Plaintiff was not required to show that the ladder was defective to meet his prima facie burden nor identify the specific reason the ladder moved. In opposition, defendants failed to raise a triable issue of fact with a affidavit from a carpenter who was working alongside plaintiff on the date of the accident.
PRACTICE POINT: When submitting an affidavit that requires translation, it is imperative that there be an accompanying affidavit from the translator attesting to their qualifications and the accuracy of the translation to comply with CPLR 2101(b). It ultimately did not matter in this case because the content of the affidavit failed to raise a question of fact, but don’t let this simple requirement be the reason you miss out a meritorious defense to 240(1).
DePhillips v Tishman Constr. Corp.
June 11, 2026
Appellate Division, First Department
Plaintiff slipped and fell on a snow- or ice-covered staircase while carrying lumber at a construction site. Defendants presented no eyewitness who saw the accident, and their witness acknowledged that snow may have accumulated along the edge of the stairs.
The Trial Court granted Plaintiff summary judgment on his Labor Law 241(6) claim based on Industrial Code § 23-1.7(d) and determined the Moinian Group, Meushar 34th Street and Boston Properties are proper Labor Law defendants.
Labor Law § 241(6) (RHF)
The First Department affirmed summary judgment in favor of the plaintiff pursuant to § 241(6) relying on well-established prior rulings. The Court first noted that plaintiff met his prima facie burden establishing liability by alleging that he slipped and fell on snow/ice covered stairs. Defendant’s own opposition papers confirmed that there was some accumulation of snow on the stairs. It was defendant’s failure to produce eyewitness testimony from anyone who actually observed the fall. This was fatal to defendant’s opposition.
In addition, the Court reiterated the long-standing proposition that the term “owner” in the context of a § 241(6) claim is not limited to titleholders of the property. The Court confirmed that the term “owner” encompasses a party who has an “interest in the property and who fulfilled the role of the owner by contracting to have the work performed”. A party may be found to be an “owner” pursuant to § 241(6) where the contracting party has the right to control the work, regardless of whether they exercise said control. In this case, however, the Court did not disclose the facts or arguments made with respect to the issue of whether the defendants were “owners."
Hernandez v Bushwick Realty Holdings LLC
June 18, 2026
Appellate Division, First Department
Plaintiff fell from a ladder while descending to the basement of a job site. Plaintiff gave inconsistent testimony about whether he descended facing the ladder with both hands on the handrails or facing away with only one hand on it, but he consistently stated that when he reached the middle of the ladder, it “rapidly” moved to the right and caused him to fall. The Trial Court granted plaintiff’s motion for summary judgement on his Labor Law §240(1) claim.
Labor Law § 240(1) (MRV)
Plaintiff met his prima facie burden on 240(1) by establishing, through his deposition testimony, that he fell from the ladder when it suddenly moved. While plaintiff testified that the ladder was secured at both the top and the bottom and he did not know if the ladder detached from those secured points, this does not create a question of fact on 240(1) liability because plaintiff does not have to show that the ladder was defective. In opposition, defendants failed to raise a question of fact on sole proximate cause despite evidence that plaintiff was descending the ladder while facing away from the rungs with only one hand on the railing. Additionally, the Court found that defendants’ expert report was speculative and, therefore, insufficient to raise a question of fact.
PRACTICE POINT: If you are going to rely on an expert report to defeat summary judgment, best practice is to have your liability expert inspect the safety device at issue. Otherwise, the Court may determine that the expert’s findings are speculative, and you will be unable to avoid summary judgment with speculation.
Prado v BP Cyrus LLC
June 18, 2026
Appellate Division, First Department
Plaintiff was injured while standing on an A-frame ladder to remove 12-foot-high metal fencing. While Plaintiff was using a saw to cut part of the fencing, a piece of fencing hit the ladder, pushed it over, and caused Plaintiff to fall to the sidewalk.
The Trial Court granted Plaintiff’s summary judgment on his Labor Law § 240(1) claim and his Labor Law § 241(6) as predicated on Industrial Code § 23-1.21(b)(4)(ii).
Labor Law § 240(1) (MRV)
Plaintiff met his prima facie burden establishing liability under 240(1) with his testimony that he was injured when the metal fencing hit the unsecured ladder, which caused the ladder to move and plaintiff to fall. Defendants’ failure to properly secure the ladder and ensure it remained steady while plaintiff used it constitutes a violation of 240(1). In opposition, defendants submitted an affidavit from plaintiff’s co-worker stating that plaintiff was on the second rung of the ladder, missed the bottom step as he descended, and fell backward. The Court held this was insufficient to create a question of fact on 240(1).
PRACTICE POINT: When submitting a affidavit from a co-worker or other witness to oppose a 240(1) motion, it is critical that the affidavit establishes that the safety device was not defective and was an adequate safety device to create a question of fact.
Labor Law § 241(6) (RHF)
The Court granting summary judgment pursuant to § 240(1) obviated the necessity of reviewing the lower court’s finding of liability pursuant to § 241(6).
Rudzikewycz v 164 W. 79th St. Corp.
June 18, 2026
Appellate Division, First Department
Plaintiff, a carpenter employed by third-party defendant Roth Built Works Inc., was injured while performing duct installation work. He fell from an A-frame ladder that “shifted and fell.” Plaintiff stated that no alternative safety device, such as a Baker scaffold, was available. A witness for 164 West 79th Street Corp. stated that two ladder feet were resting on garbage bags before the fall.
The Trial Court denied Plaintiff’s summary judgment on his Labor Law § 240(1) claim.
Labor Law § 240(1) (MRV)
The Appellate Division held the lower could should have granted plaintiff’s motion for summary judgment on 24091) because plaintiff’s testimony established that the ladder shifts for no apparent reason while plaintiff was using it. Testimony in opposition that the ladder feet were resting on garbage bags was insufficient to warrant a denial of the motion because there was no dispute that the ladder was unsecured.
PRACTICE POINT: A sole proximate cause argument will fail when a plaintiff explicitly denies that an alternative safety device was available for use and defendants fail to establish that plaintiff was specifically directed to use the alternative safety device and failed to do so.
Gomez v Brookfield Props. One WFC Co., LLC
June 23, 2026
Appellate Division, First Department
Plaintiff fell from an eight-foot A-frame ladder while installing sheetrock. Plaintiff testified that the ladder moved from side to side and caused him to fall.
The Trial Court denied plaintiff’s motion for summary judgment with leave to renew after further discovery.
Labor Law § 240(1) (MRV)
The Appellate Division reversed, holding that plaintiff was entitled to summary judgment on 240(1) based on his testimony that the ladder moved from side to side and caused him to fall. Defendants failed to raise a triable issue of fact in opposition.
PRACTICE POINT: A plaintiff’s hearsay statement in the medical records and accident report that he lost his balance is insufficient to create a question of fact on 240(1) because it is not inconsistent with a fall due to ladder movement.
Bunay v One City Block, LLC
June 25, 2026
Appellate Division, First Department
Plaintiff was injured while cutting ductwork for removal. A piece of ductwork fell onto the ladder on which Plaintiff was standing, causing the ladder to move and Plaintiff to fall. Plaintiff also submitted testimony from his foreman stating that Plaintiff had been instructed to use a scissor lift, not a ladder, to remove the ductwork.
The Trial Court denied plaintiff’s motion for partial summary judgment on his Labor Law 240(1) and 241(6) claims, and dismissed claims of Labor Law § 200, 241(6), and common-law negligence § 241(6) Elite Interior Contracting Corporation.
Labor Law § 240(1) (MRV)
The Appellate Division affirmed. Plaintiff failed to meet his prima facie burden on 240(1) because plaintiff’s foreman testified that plaintiff was instructed to use a scissor lift to remove the ductwork, not a ladder.
PRACTICE POINT: When using a recalcitrant worker and/or sole proximate cause defense, it is critical that plaintiff was specifically instructed to use a different safety device and, for no good reason, plaintiff chose not to do so. Here, defendants were successful in creating a question of fact because they had testimony directly from the person who gave that instruction. Interview your clients and witnesses early—it can shape your whole case.
Labor Law § 241(6) (RHF)
The Court affirmed summary judgment dismissing plaintiff’s § 241(6) claim. The Court rejected plaintiff’s argument that Industrial Code (12 NYCRR) § 23-1.21(b)(1) was violated. That section of the Industrial Code states:
“1) Strength. Every ladder shall be capable of sustaining without breakage, dislodgment or loosening of any component at least four times the maximum load intended to be placed thereon.
Because plaintiff presented no evidence that the ladder was incapable of supporting four times the maximum load or that the ladder was defective, summary judgment was granted to the defendants. The Court also acknowledged that Industrial Code § 23-1.21(e)(2) is not sufficiently specific to support a Labor Law § 241(6).
Labor Law § 200 and Common-Law Negligence (EDA)
The appellate Division affirmed the Supreme Court finding that Plaintiff's accident arose out of his use of a ladder and thus was in the means-and-methods category of Labor Law § 200 cases, where liability depends on the exercise of supervision and control over the work. Elite's principal testified that he provided only general instructions to plaintiff's foreman and did not direct him on how the work was to be performed. Accordingly, plaintiff failed to show that Elite had more than "site safety or general supervisory authority," which is insufficient to impose Labor Law § 200 and common-law negligence liability (Torres-Quito v 1711 LLC, 227 AD3d 113, 119 [1st Dept 2024]).
Santacruz v 58 Gerry St. LLC
June 25, 2026
Appellate Division, First Department
Plaintiff was working as a carpenter/laborer for Capital Concrete NY Inc. and Great Maintenance NY Inc. while removing concrete forms from an elevator space. Plaintiff testified that a long metal jack/post used to shore up decking for ceiling concrete forms fell against his head, back, and neck, caused him to fall to the floor, and resulted in a laceration to his right middle finger.
The Trial Court denied Plaintiff’s Labor Law § 240(1) and 241(6) claims on summary judgment and denied 58 Gerry St. LLC, 33 Bartlett LLC, Gerry Street Holdings LLC, Parkview Builders LLC, and BT General Builders Inc., d/b/a Preferred Builders and Capital Concrete NY Inc.’s summary judgment motion seeking dismissing of Plaintiff’s Labor Law § 200 and common-law negligence claims against them. In addition, the Trial Court denied third party breach of contract and common-law and contractual indemnification claims against Capital Concrete, and Great Maintenance NY Inc.’s third party claims against the Owners.
Labor Law § 240(1) (MRV)
The Appellate Division held that plaintiff’s testimony that he was injured by an allegedly unsecured jack/post that toppled onto him from its standing height of 8 to 10 feet was sufficient to establish a prima facie violation of Labor Law 240(1). Defendants were able to create a question of fact in opposition because the incident report and hospital records indicated that plaintiff hit his finger with a hammer while pulling out a pin in the post and he was using a pulley when it accident cut and crushed his finger.
PRACTICE POINT: It is important to review all available records early in your case to support potential liability defenses. Here, defendants were able to depose to persons responsible for preparing these records to establish that they had a duty to prepare the records and that plaintiff provided the account of how he was injured. That foresight gave defendants a means to challenge plaintiff’s version of events on summary judgment and create a question of fact.
Labor Law § 241(6) (RHF)
The appellate Court partially reversed the lower court and awarded summary judgment to the defendants on plaintiff’s § 241(6) cause of action. Plaintiff relied on multiple sections of the Industrial Code. The Court reasoned that the jack/post involved was a stationary support used in concrete decking making Industrial Code 23-1.27(d) and (e) inapplicable. As a result, summary judgment was granted with respect to those two sections. However, the Court found that there were questions of fact with respect to Industrial Code sections 23-2.2(a), (b), and (c)(1). The limited factual information in the decision do not illuminate the Court’s insight or analysis of those sections.
Labor Law § 200 and Common-Law Negligence (EDA)
The Appellate Division Affirmed the Supreme Court finding that there was no dispute that the Owner defendants did not exercise control over the means and methods of plaintiff's injury-producing work, but factual issues remained as to whether the Owner defendants had actual or constructive notice of the alleged dangerous condition of the jack/post (see Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139, 144 [1st Dept 2012]). The Owner defendants did not offer evidence as to when the jack/post supports to the decking were last inspected, and whether or not they possessed or lacked the authority to control site safety and the equipment used on the project (see Bolson v UJA-FED Props., Inc., 224 AD3d 584, 585 [1st Dept 2024]; Herrero v 2146 Nostrand Ave. Assoc., LLC, 193 AD3d 421, 422-423 [1st Dept 2021]).
Indemnity Issues in Labor Law (EDA)
The appellate Division reversed the Supreme Court on the failure to procure insurance claim finding that C-Concrete established it provided the insurance coverage required by the subcontract.
The appellate Division reversed the Supreme Court on the common-law indemnity and contribution claims finding that questions of fact existed as to whether Plaintiff was a general or special employee under Fung v Japan Airlines Co., Ltd., 9 NY3d 351, 359 [2007] because the record did not include either a written agreement between G-Maintenance and C-Concrete setting forth the terms for the exchange of laborers between the companies, or sufficient evidence to show that G-Maintenance surrendered control over its workers (cf. Ceja v Posillico Civ., Inc., 244 AD3d 514, 514 [1st Dept 2025]).
The appellate Division also held that the Supreme Court should have granted G-Maintenance summary judgment dismissing the Owner defendants' third third-party claims against it for common-law indemnification and contribution, as well as all cross claims against it. There was no real dispute G-Maintenance was plaintiff's general employer. The workers' compensation board found G-Maintenance to be plaintiff's employer, and plaintiff received a workers' compensation award (see O'Rourke v Long, 41 NY2d 219, 228 [1976]; see also Cunningham v State of New York, 60 NY2d 248, 253 [1983]). Moreover, the parties never challenged G-Maintenance's employer/employee relationship with the plaintiff. The motion court properly found that plaintiff did not suffer a grave injury as plaintiff's medical professionals did not offer an opinion that plaintiff was permanently totally disabled and unemployable in any capacity (Workers Compensation Law § 11; see Ruebis v Aqua Club Inc., 3 NY3d 408, 417 [2004]).
Acosta v 22-12 Jackson Owner LLC
June 30, 2026
Appellate Division, First Department
Plaintiff was a laborer employed by Quality Facility Solutions Corp. He was injured while disposing of construction debris when sheetrock slid off a Spyder forklift operated by a Feldman Lumber-US LBM, LLC (“Feldman”) employee and fell onto him. The Trial Court granted Plaintiff’s motion for summary judgment on Labor Law § 240(1) as to 22-12 Jackson Owner LLC, Britt Realty, LLC, and Vector Building Corp., but denied his Labor Law § 240(1) motion as to Feldman. The Trial Court granted dismissal of Plaintiff’s Labor Law §200 and common-law negligence claims against 22-12 Jackson Owner LLC, but denied dismissal of these claims against Britt Realty, LLC. The Trial Court also denied defendants’ motions seeking contractual indemnification and common-law indemnity.
Labor Law § 240(1) (MRV)
The First Department held that the lower court correctly granted plaintiff’s motion for summary judgment on 240(1) because the evidence established that plaintiff was injured by a falling object and the object fell because there were no appropriate safety devices. Defendants failed to offer any eyewitness testimony or other evidence to directly rebut plaintiff’s evidence as to how this accident occurred.
PRACTICE POINT: Make contact with your client as soon as possible to establish contact with known witnesses. You may need a witness affirmation rebutting plaintiff’s version of an accident and it is certainly easier to do that if you have established contact with the witness sooner rather than later.
Labor Law § 200 and Common-Law Negligence (EDA)
The Appellate Division reversed the Supreme Court finding that it should have granted summary judgment in plaintiff's favor on his common-law negligence claim against Feldman Lumber. Plaintiff offered expert opinions from an experienced forklift operator, who opined that the accident could have happened only if Feldman Lumber's employee failed to properly operate the machinery by fully extending its forks. In opposition, Feldman Lumber failed to raise an issue of fact. Feldman Lumber's expert failed to address plaintiff's expert's opinion concerning the operator's failure to operate the machinery properly. Further, no third-party acts intervened between the employee's improper operation of the machinery, which dropped the sheetrock on plaintiff, sufficient to sever the causal connection.
The appellate Division also affirmed the Supreme Court finding it properly denied 22-12 Jackson and Britt Realty's motion for summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims against Britt Realty, the general contractor. Britt Realty's representative testified that Vector had responsibility for site safety, and that Vector, not Britt Realty, was responsible for deliveries to the site. However, the Feldman Lumber machinery operator testified that it was Britt Realty who instructed him where to park his truck before he began using the Spyder forklift to unload the sheetrock. In addition, other witness testimony raised issues of fact as to Britt Realty's obligations to set procedures to ensure worker safely in the delivery areas of the construction site. This created triable issues of fact exist concerning its supervision and control of the injury-producing work.
Indemnity Issues in Labor Law (EDA)
The Appellate Division reversed the Supreme Court finding it should have granted summary judgment to 22-12 Jackson and Britt Realty on their contractual indemnification cross-claims as against Vector and QFS. The record indicates that Britt Realty, 22-12 Jackson, and Vector are each liable to plaintiff for their violation of Labor Law § 240(1). The relevant indemnification provisions for Britt Realty and 22-12 Jackson's relationship with Vector and QFS each covered damages "arising out of or resulting from the Work covered by this Subcontract to the extent such Work was performed by or contracted through the Subcontractor or by anyone for whose acts the Subcontractor may be held liable, excluding only liability created by the sole and exclusive negligence of the Indemnified Parties." With respect to Vector, the indemnification provision was implicated due to either Vector's conduct set forth in the record, namely the carpentry work it contracted to perform which the sheetrock was for, or by the conduct of defendant GSP Interior Construction Inc., with whom Vector contracted to perform work.
With respect to QFS, the indemnification provision is implicated to the extent that plaintiff's injuries arose out of work covered by the subcontract between Britt/22-12 Jackson and QFS. Further, there was no showing that sole and exclusive negligence rested with the indemnified parties, 22-12 Jackson and Britt Realty. Because the record did not establish the indemnified parties' negligence or lack thereof, summary judgment was granted only on a conditional basis.
The Appellate Division also reversed the Supreme court finding that in light of the determination granting plaintiff's motion for summary judgment on his common-law negligence claim against Feldman Lumber, the court should have granted 22-12 Jackson's motion for summary judgment to the extent it sought common-law indemnification as against Feldman Lumber. There was no nonconclusory evidence in the record indicating that 22-12 Jackson's liability under Labor Law § 240(1) is the result of anything other than vicarious liability for its nondelegable duties owed under the statute.
Finally, the Appellate Division affirmed the Supreme Court finding that it correctly denied Vector's motion for summary judgment seeking dismissal of the common-law indemnification and contribution claims brought against it by 22-12 Jackson, Britt Realty, Feldman Lumber, and QFS. Vector failed to prove that it was not negligent beyond statutory liability and must also prove that the potential indemnitor was negligent in causing the accident. Notwithstanding its assertion that it was not on site, the record contains some evidence that a Vector employee conferred with the general contractor about the delivery at issue, and documentary evidence in the record established that the sheetrock that fell on plaintiff was sold to Vector.
Almer v Summit Glory Prop. LLC
June 30, 2026
Appellate Division, First Department
Plaintiff was an apprentice electrician employed by nonparty Forest Electric. He tripped and fell over a drag line, a rope used to pull cable through conduit, while the drag line was attached to a partially installed data cable that had been coiled and hung from a passageway ceiling. The project involved a tenant-space-build-out at 28 Liberty Street owned by Summit Glory Property LLC, (“Summit”) a subsidiary of Fosun Management (US) Inc. (“Fosun”). Benchmark Builders, Inc. (“Benchmark”) was the general contractor and Linear Technologies, Inc. (“Linear”) was hired to run low energy data and communications cable, and Linear subcontracted that work to TRI Ram, LLC, which was doing business as Momentum Data.
The Trial Court denied defendants’ summary judgment motions seeking dismissal of Plaintiff’s Labor Law § 241(6) and Labor-Law § 200 and common-law negligence claims, and denied summary judgment on all claims seeking contractual and common-law indemnity.
Labor Law § 200 and Common-Law Negligence (EDA)
The Appellate Division Affirmed the Supreme Court finding that Momentum, which installed the drag line, left it attached to the data cable so that the drag line dragged along the floor of the passageway and created a tripping hazard. Linear was contractually obligated to perform, and thus supervise, that installation, and it failed to make a prima facie showing that it was not on notice of the condition. Thus, questions of fact remained as to whether Linear and Momentum are liable for plaintiff's injury. Summit, Fosun, and Benchmark also failed to make a prima facie showing of entitlement to summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims.
Indemnity Issues in Labor Law (EDA)
The Appellate Division affirmed the Supreme Court finding that because Summit, Fosun, and Benchmark also failed to make a prima facie showing of entitlement to summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims, the Supreme Court correctly denied the defendants' and third-party defendants' summary judgment motions either seeking common-law indemnity or dismissing common-law indemnity and common-law contribution claims against them.
The Appellate Division found that Linear is entitled to indemnity against Momentum based on the contract between them. Linear is defined as "Contractor" in the agreement and is thus named as a party to whom Momentum owed contractual indemnity. Moreover, the accident "arose out of," was "in connection with," or was "a result of or consequence of" the work. Further, the triggering of an "arising out of" clause is not contingent upon proof that the indemnitor was negligent (see Licata v AB Green Gansevoort, LLC, 158 AD3d 487, 490-491 [1st Dept 2018]). Summit, Fosun, and Benchmark, however, were not named indemnitees (see Tavarez v LIC Dev. Owner, L.P., 205 AD3d 565, 567 [1st Dept 2022]). Defendants argued that Summit was an indemnitee because it is an "Owner" and Benchmark and Fosun were its agents. However, the term "Owner" in the Linear/Momentum contract referred to Wolters Klewer, the tenant with whom Linear contracted, and the "prime contract" is the contract between Linear and Wolters Klewer. Even if Summit were named, there is no evidence that either Fosun or Benchmark Builders were its agents.
The appellate Division found that Defendants Summit and Fosun were entitled to indemnity from Linear based upon the Linear/Wolters Kluwer Contract. That contract has a two-page rider entitled "Insurance and Indemnity Rider" that provides that the indemnitees are the parties listed "below" as additional insureds. The portion of the rider outlining insurance requirements lists Summit and Fosun as parties that Linear is obligated to name as additional insureds, thus making them indemnitees under the contract's terms. Benchmark, however, was not named as an additional insured, nor was it an agent of Summit for purposes of contractual indemnity. Thus, its contractual indemnity claim against Linear was dismissed.
Linear failed to make a showing that it procured the required insurance so as to warrant dismissal of defendants' breach of contract claim against it.
Aponte v 298 E. Vil. Owner LLC
June 30, 2026
Appellate Division, First Department
Plaintiff was working at a construction site when he encountered an unmarked A-frame dolly loaded with 10 to 15 vertically stacked metal sheets. The sheets were about eight by five feet, reached six to seven feet above the floor, and were not secured to the dolly. After Plaintiff was told to move the dolly on his own, he pulled the dolly one or two feet, the dolly and metal sheets tipped over, struck him, and knocked him to the ground. The Supreme Court denied Plaintiff’s summary judgment motion under Labor Law § 240(1).
Labor Law § 240(1) (MRV)
The Appellate Division reversed. Plaintiff testified that he observed an unmarked A-frame dolly loaded with 10 to 15 sheets of metal, each one about eight by five feet and vertically stacked on the dolly’s platform. After allegedly being told to move the dolly on his own, plaintiff pulled the dolly towards him. After he moved the dolly one or two feet, both the dolly ad the metal sheets tipped over and struck him, knocking him to the ground. The metal sheets were not secured to the dolly. Therefore, plaintiff met his prima facie burden.
PRACTICE POINT: It is irrelevant for purposes of 240(1) liability if a plaintiff is injured while moving another subcontractor’s loaded dolly. Any argument that plaintiff was acting as a volunteer for purposes of the statute is unconvincing where a site supervisor allegedly directs a plaintiff to perform the action.
Cespedes v El-Kam Lexington Ave. LLC
June 30, 2026
Appellate Division, First Department
Plaintiff and his coworkers were lowering a heavy, cumbersome piece of machinery called a switchgear by hand into an elevator. The top part of the switchgear fell on Plaintiff, cracked and knocked off his hard hat, and caused him to fall backwards. The switchgear was not secured by a hoist or other safety device, although Plaintiff stated that equipment had been used to lower switchgears on prior days but was not provided or available on the accident date. The Trial Court granted Plaintiff’s motion for summary judgment on Labor Law 240(1).
Labor Law § 240(1) (MRV)
The switch gear was being hoisted and thus required securing or any gravity related injury would trigger § 240(1). In fact, the switch gear was being hoisted by hand and not, as in the earlier times the job was done, by using a mechanical lift to do the job, which would seem to have been the appropriate safety device to use.
PRACTICE POINT: The weight of the switch gear plays an important part in this case. The significance of the height differential has been closely related to the mass of the falling object. Here the switch gear was very heavy, it cracked the plaintiff’s hard hat even though it fell only a short distance and was partially at the same height as the plaintiff. This is a great case to review as it is based on both Runner and Wilinski, two of the most important Court of Appeal cases in this area over the past 10 or 15 years.
Stratis v 345 Park Ave L.P.
June 30, 2026
Appellate Division, First Department
Plaintiff was allegedly injured while performing drywall work in the northwest corner of the 25th floor of a Manhattan building. He tripped on a bag of sprinkler materials. The Trial Court denied Plaintiff’s motion for leave to renew prior motions under Labor Law § 241(6) and § 200, and conditionally granted contractual indemnification to Structure Tone, LLC against third-party defendant National Acoustics, LLC.
Labor Law § 200 and Common-Law Negligence (EDA)
The Appellate Division affirmed The Supreme court finding that there were issues of fact as to whether the accident was caused by a dangerous condition, the means and methods of defendant Par Fire Protection/Par Plumbing Co., Inc.'s work, or some combination of the two. There was evidence to support both theories depending on when the materials were delivered (see Prevost v One City Block LLC, 155 AD3d 531, 533-534 [1st Dept 2017]; Serrano v Consolidated Edison Co. of N.Y. Inc., 146 AD3d 405, 405-406 [1st Dept 2017], lv dismissed 29 NY3d 1118 [2017]).
Indemnity Issues in Labor Law (EDA)
The Appellate Division affirmed the Supreme Courts granting the conditional order of indemnity finding under the broadly worded indemnification provision, plaintiff's accident arose out of the work given that he was working and directed to work in the northwest corner of the 25th floor, and his foreman told him to avoid the bags of materials. National's argument concerning the accuracy of the indemnification language is unpreserved because National failed to raise the argument before the trial court.
Antunez v Denoia
June 3, 2026
Appellate Division, Second Department
The plaintiff brought this action to recover damages for personal injuries he allegedly sustained while renovating a bathroom in a house owned by the defendant. The plaintiff alleged that on the day of the accident, he was directed by his employer, the defendant's contractor, to demolish a wall in the bathroom. According to the plaintiff, there was a hole in the bathroom floor, which the plaintiff described as six to eight inches in width and approximately five to six inches away from the wall he was told to demolish. The plaintiff alleged that as he pulled a piece of sheetrock to detach it from the wall, it fell toward him, causing his left foot to slip forward and fall into the hole. The complaint asserted causes of action alleging a violation of Labor Law § 200 and common-law negligence. After the plaintiff filed a note of issue, the defendant made a renewed motion for summary judgment dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence. The Supreme Court granted those branches of the renewed motion.
Labor Law § 200 and Common-Law Negligence (EDA)
The Appellate Division reversed the Supreme Court finding that defendant's submissions failed to eliminate all triable issues of fact as to whether the hole was open and obvious and not inherently dangerous in light of all of the surrounding circumstances. The plaintiff's deposition testimony, raised a triable issue of fact as to whether the hole's location in relation to the wall prevented him from situating himself properly in order to demolish the wall safely and/or avoid the falling sheetrock. Further, the defendant failed to eliminate all triable issues of fact as to whether the hole existed for a sufficient length of time prior to the plaintiff's accident to permit the defendant to discover and remedy it. The defendant's submissions did not eliminate all triable issues of fact as to whether the hole in the bathroom floor was part of, or inherent in, the work that the plaintiff was hired to perform.
Beaton v Tomco Mech. Corp.
June 3, 2026
Appellate Division, Second Department
The plaintiff commenced this action against the defendant Tamco Mechanical, Inc. and another defendant, to recover damages for personal injuries she allegedly sustained while working at Riker's Island. Tamco moved for summary judgment dismissing the cause of action alleging a violation of Labor Law § 200 insofar as asserted against it.
Labor Law § 200 and Common-Law Negligence (EDA)
The Appellate Division reversed the Supreme Court finding that Tamco established its prima facie entitlement to summary judgment dismissing the Labor Law § 200 claim by showing that the allegedly dangerous condition did not exist a week prior to the plaintiff's accident and that Tamco's employees performed no work at the premises in the interim between that time and the plaintiff's accident. In opposition, the plaintiff failed to raise a triable issue of fact.
It also found that the Supreme Court improvidently exercised its discretion in considering an affirmation of an alleged witness submitted by the plaintiff in opposition to the motion, as the plaintiff failed to disclose the witness to Tamco and failed to offer a valid excuse for that failure (see CPLR 3101[a]; Krehl v Siberio, 228 AD3d 852, 854; Gallway v Munintir, LLC, 142 AD3d 948, 949). The plaintiff's hearsay deposition testimony regarding when Tamco employees last worked at the premises failed to raise a triable issue of fact, as it was the only evidence upon which opposition to the motion was predicated (see Estrella v ZRHLE Holdings, LLC, 218 AD3d 640, 644; Alpha Invs., LLC v McColdrick, 151 AD3d 800, 802).
Fahey v Worship House & Outreach Ministries, Inc.
June 3, 2026
Appellate Division, Second Department
On May 9, 2017, the plaintiff, an employee of Shoe Box, allegedly sustained injuries during the course of the demolition work, when a hand-held power saw malfunctioned while he was cutting planks of wood. The plaintiff commenced this action against the City defendants alleging violations of Labor Law §§ 200, 240(1), and 241(6). The plaintiff moved, inter alia, for summary judgment on the issue of liability on so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated on violations of 12 NYCRR 23-1.5(c)(3) and 23-1.12(c)(1) insofar as asserted against the City defendants, and the City defendants cross-moved for summary judgment dismissing the amended complaint insofar as asserted against them. The Supreme Court denied that branch of the plaintiff's motion and granted the City defendants' cross-motion.
 Labor Law § 240(1) (PCSM)
Here the injury to the plaintiff was not as a result of any elevation differential or the effect of the force of gravity and the § 240(1) claim was dismissed.
PRACTICE POINT: In any case where a violation is alleged, even one as silly as the § 240(1) claim here it is imperative to move to have that claim dismissed, as the court could sua sponte dismiss it but there is no reason to hope that happens. A common example of this is where multiple § 241(6) sections are claimed, it is necessary to specifically address every section claimed to have it dismissed.
Labor Law § 241(6) (RHF)
The defendants sought dismissal of plaintiffs section 241(6) cause of action and argued that they possessed only general supervisory authority over the demolition project, however, plaintiff was able to establish a question of fact by presenting a contract between the parties indicating that the City defendants had the actual authority to exercise supervision and control of the work. It is the actual authority to supervise and control the work as opposed to actually undertaking those duties that controls. (See Fiore v Westerman Constr. Co., Inc., 186 AD3d 570, 571, 128 N.Y.S.3d 628 (2nd Dept. 2020).
Labor Law § 200 and Common-Law Negligence (EDA)
The plaintiff had abandoned on appeal any argument that the Supreme Court should not have granted the City defendants' cross-motion for summary judgment dismissing the Labor Law § 200 claim against them, as the plaintiff's brief did not set forth any arguments articulating how this statute was violated (see Nooney v Queensborough Pub. Lib., 212 AD3d 830, 833; Lupo v Miranda, 186 AD3d 468, 469).
Herrera v City of New York
June 10, 2026
Appellate Division, Second Department
The plaintiff Ruben Herrera commenced this action against the defendants third-party plaintiffs, City of New York and New York City Department of Design and Construction (hereinafter the City defendants), to recover damages for personal injuries the injured plaintiff allegedly sustained while working at a construction site, when he was knocked to the ground by a suspended load being transported by a backhoe machine. The plaintiffs asserted causes of action alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). The City defendants commenced a third-party action against the third-party defendant, Rosedale Supply Co., LLC (hereinafter Rosedale), which was hired to provide crossing guards and flag persons to control pedestrian and vehicular traffic for the construction site. The third-party complaint asserted causes of action for indemnification and contribution. Thereafter, the plaintiffs moved for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) and Rosedale cross-moved for summary judgment, in effect, dismissing the third-party complaint and the cause of action alleging a violation of Labor Law § 240(1). The Supreme Court denied Rosedale's cross-motion.
Labor Law § 240(1) (PCSM)
In the instant case there are differing versions of the accident, first that per an independent witness that the plaintiff stepped into a depression in the road surface and fell and made contact with the backhoe. Second, that per the plaintiff the backhoe front tire went into a depression causing the load suspended to swing into the plaintiff. As one the plaintiff’s version supports a § 240(1) claim, there exists a question of fact that can only be resolved by a jury.
PRACTICE POINT: It is important to recall that the fact that there are multiple versions of an accident does not automatically result in a question of fact. A question of fact only exists where one version supports a § 240(1) claim and the other does not, thus even if there are multiple versions if both support a § 240(1) claim summary judgment will be awarded.
Indemnity Issues in Labor Law (EDA)
The Appellate Division affirmed the Supreme Court finding that Rosedale failed to establish, prima facie, that it did not cause the injured plaintiff's accident because it failed to establish that the injured plaintiff was not a pedestrian that Rosedale was hired to control at the construction site.
Neto v. Buddies Bro, LLC
June 17, 2026
Appellate Division, Second Department
The plaintiff, a carpenter employed by Magellan Concrete Structures, commenced this action to recover damages for personal injuries he allegedly sustained while working on a project involving the construction of a building at premises owned by the defendant Buddies Bro, LLC, and at which the defendant Townhouse Builders, Inc. (hereinafter together the defendants), was serving as the general contractor. The plaintiff asserted causes of action alleging violations of Labor Law §§ 200, 240(1), and 241(6), and common-law negligence. The plaintiff testified at his deposition that, on the date of the accident, he was "stripping" the second floor ceiling, which involved removing "the material that had been used to make a base to pour the cement." At the time of the incident, the plaintiff was climbing down a cement column located on the side of the building using scissor clamps that were attached to the column. The plaintiff slipped and fell while descending the scissor clamps. The plaintiff testified that his personal fall arrest system engaged, which prevented him from falling to the ground, but he struck the exterior wall of the building, causing him to lose consciousness. The plaintiff moved 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. In an order dated March 20, 2024, the Supreme Court granted that branch of the motion.
Labor Law § 240(1) (MRV)
The Appellate Division reversed and held the lower court should have denied plaintiff’s motion for summary judgment on 240(1). The plaintiff met his prima facie burden by submitting evidence establishing that he was injured due to the defendants’ failure to provide scaffolding or a ladder that could be used outside the building. However, the defendants were able to raise a triable issue of fact by showing that plaintiff was provided safety devices to prevent elevation-related injuries, including a six-foot ladder, that the plaintiff may have known of such devices, and that the plaintiff failed to use the provided ladder.
PRACTICE POINT: Note the Court’s language in this decision. To support a sole proximate cause defense, we typically argue that plaintiff knew or should have known that the safety device was available and plaintiff failed to use it. Here, the Court noted that plaintiff “may have known of such devices.” This may be a helpful case to add to any motions on sole proximate cause, particularly in the Second Department, where the testimony on whether plaintiff knew to use the safety device is somewhat equivocal.
Bartnick v. Consolidated Edison Co. of N.Y., Inc.
June 24, 2026
Appellate Division, Second Department
The plaintiff, a Verizon employee, was performing work on a public street to repair damaged telephone lines while employees of the defendants Consolidated Edison Company of New York, Inc., and Consolidated Edison, Inc. (hereinafter together ConEd), were working nearby to repair electrical cables. As a result of an electrical explosion in connection with the ConEd employees' work, an electrical cable fell to the ground, and struck the plaintiff.
The plaintiff commenced this personal injury action against the defendant City of New York, among others, alleging, a violation of Labor Law § 240(1). The case proceeded to trial. At the conclusion of the evidence, the plaintiff made an application pursuant to CPLR 4401 for judgment as a matter of law on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the City and the City made an application pursuant to CPLR 4401 for judgment as a matter of law dismissing that cause of action insofar as asserted against it. The Supreme Court, in effect, denied the plaintiff's application and granted the City's application. A clerk's judgment was thereafter entered in favor of the City and against the plaintiff, among other things, in effect, dismissing the Labor Law § 240(1) cause of action insofar as asserted against the City.
Labor Law § 240(1) (MRV)
The Second Department held that, viewing the evidence in the light most favorable to the plaintiff, there was no rational process by which the jury could have found the City liable under 240(1). The trial evidence established that the plaintiff’s injuries were not caused by an elevation-related or gravity-related risk within the scope of 240(1) because the electrical cable was propelled to the ground by an explosion and the electrical cable did not require securing for purposes of the undertaking.
PRACTICE POINT: If at first you don’t succeed, try again! In this case, the City did not prevail on its motion for summary judgment seeking dismissal of plaintiff’s 240(1) claim based on the evidence presented on that motion. That did not preclude the City from seeking judgment as a matter of law pursuant to CPLR 4401 on the 240(1) claim after the close of evidence at trial.
Delisle v FBBT/US Props., LLC
June 5, 2026
Appellate Division, Fourth Department
Plaintiff commenced this Labor Law and common-law negligence action seeking damages for injuries he allegedly sustained while performing construction work on premises owned by defendant FBBT/US Properties, LLC (FBBT) and leased to defendant CSL Plasma Inc. (CSL). FBBT and CSL hired defendant Barker Contracting, Inc. (Barker) as the general contractor for the construction project, and Barker subcontracted a portion of the project to plaintiff's employer. Plaintiff alleged that an A-frame ladder on which he had been standing shifted, causing him to lose his balance and then injure his arm as he grabbed the ladder to steady himself before he fell to the ground. Plaintiff further alleged that the ladder, which was one of several provided by his employer, had been modified by a CSL employee who duct-taped tube socks over the four feet of the ladder to prevent the ladder from scuffing newly installed tile floors. Plaintiff moved for partial summary judgment on the issue of liability on his Labor Law § 240 (1) cause of action, and CSL and Barker (collectively, CSL defendants) cross-moved for summary judgment dismissing the complaint and all cross-claims against them. Plaintiff appeals and the CSL defendants cross-appeal from an order that, inter alia, denied plaintiff's motion and denied that part of the CSL defendants' cross-motion with respect to the Labor Law § 240 (1) cause of action.
Labor Law § 240(1) (DRA)
In this case it is uncontested that the ladder as modified failed to protect plaintiff and was thus not an adequate safety device. Plaintiff himself testified that he knew that the ladder with the socks on the feet was unsafe. The only issue was if the plaintiff was instructed to use the ladder. The majority found that as the plaintiff in this unwitnessed accident testified that he was told by a CSL employee to use the ladder with socks taped to its feet that the statute was violated.
Here, plaintiff met his initial burden on the motion by submitting his deposition testimony wherein he testified that a CSL employee named John covered the ladder's feet with socks, that John instructed plaintiff to use the modified ladder, and that the socks caused the ladder to slide and plaintiff to fall. Plaintiff's unrebutted testimony established that "the statute was violated and that the violation proximately caused his injury" (Cahill, 4 NY3d at 39).
The majority further held that all elements of the sole proximate cause defense were present, other than that a CSL employee told plaintiff to use the modified ladder and thus the “no good cause” element was not met.
The dissent points out that there were a few issues with the plaintiff’s case requiring a question of fact be found. First the identity of the CSL employee is very much in question. He was described by the plaintiff as a man named John with a red beard. CSL had no such employee per their testimony and the project manager who was on site every day testified that he did not see socks on any ladder and that had he seen them he would have immediately corrected the situation. Second the plaintiff filled out several reports describing the issue and he never mentioned that there were socks placed on the ladder by someone else or that he was told to use the ladder by an employee of CSL. The reports only mentioned that he lost his footing and hurt his shoulder. The dissent held that this was sufficient to establish a question of fact.
Although in some instances a plaintiff may be entitled to summary judgment on the issue of liability even when the accident is unwitnessed, where there is a triable issue of fact relating to the prima facie case or to plaintiff's credibility, the motion should be denied (see Klein v City of New York, 89 NY2d 833, 834-835 [1996]). In our view, plaintiff failed to eliminate issues of fact or, alternatively, defendants raised a triable issue of fact.
The 2 dissents are likely only a Pyrrhic victory as this is only going to get to the Court of Appeals should the case be tried to verdict, and both sides have risk in that scenario.
PRACTICE POINT: Well, sometimes we need to step up and discuss our losses. I represented the defendants in this case and in the end the majority did not care that the testimony regarding the “instruction” to use the ladder with the socks on it was only that he “thought” that the man named John with the red beard wanted him to use it, but there was no testimony even from the plaintiff that he was ever told to use it in a condition he felt was unsafe. This is why Labor Law can be so frustrating.
New York Industrial Code Regulations (EDA)
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Regulation § 23–1.28 Hand-propelled vehicles
(c) Buggy counterbalance. Loose weights shall not be hung on buggy handles as counter-balances. When counter balance weights are used, they shall be fastened securely to the buggy handles.
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Regulation § 23–1.28(b) is likely sufficiently specific to support a Labor Law § 241(6) cause of action as it provides specific and particular actions to take and/or avoid.
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Jackson v Heitman Funds/191 Colonie LLC, 37 Misc. 3d 1211[A], 1211A, 2012 NY Slip Op 51998[U], *6 [Sup Ct, Albany County 2012]) (the regulation does not require the use of counterweights but instead specifically directs how counterweights should be affixed "[w]hen counterweights are used" (the regulation was not applicable to the facts of the case.)
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Labor Law Pointers
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