The Second Department determined summary judgment should not have been granted to plaintiff on his Labor Law 240(1) cause of action. Plaintiff fell off a scissors lift when what he alleged was a “beam” came down from above him. The object which came down was also described as a “duct.” The Second Department found there was a question of fact whether the object which came down should have been secured by a safety device enumerated in the Labor Law statute:
The evidence submitted by the plaintiff was insufficient to establish that the beam in question fell due to the absence or inadequacy of an enumerated safety device. Specifically, there was a question of fact as to the nature of the “beam” at issue. The plaintiff alternately described it as a flat or narrow “metal slab supposedly made of Steel but it was mostly [copper],” or an iron or steel “beam.” The plaintiff’s supervisor described it as “like old duct work, metal studs,” and a representative of [defendant] described it as a “duct” or “ductwork.” Although the plaintiff submitted the affidavit of an expert who opined that a contractor’s lift should have been provided to hold “the beam” as it was being cut, the expert, whose opinion was rendered after reviewing the relevant deposition transcripts, failed to identify a basis for concluding that the object at issue was a “beam” or otherwise explain why a contractor’s lift was required to hold the object at issue, and thereby establish that this was “a situation where a hoisting or securing device of the kind enumerated in the statute would have been necessary or even expected” … . Romero v 2200 N. Steel, LLC, 2017 NY Slip Op 02075, 2nd Dept 3-22-17
LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER OBJECT THAT FELL WAS THE TYPE OF OBJECT WHICH SHOULD HAVE BEEN SECURED WITH A SAFETY DEVICE ENUMERATED IN THE LABOR LAW STATUTE)