You are here: / / PLAINTIFF FELL OFF THE EDGE OF A BATHTUB WHEN HE WAS ATTEMPTING TO INSTALL...

PLAINTIFF FELL OFF THE EDGE OF A BATHTUB WHEN HE WAS ATTEMPTING TO INSTALL A SHOWER-CURTAIN ROD; THE EDGE OF THE TUB WAS THE EQUIVALENT OF A SCAFFOLD AND PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION; TWO-JUSTICE DISSENT (FIRST DEPT). ​

The First Department, over a two-justice dissent, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff alleged he needed to stand on the rim of a bathtub to install a shower-curtain rod. He hit his head and fell when attempting to step up on the rim of the tub. The defendants argued the installation could have been done from floor level. There was no room in the bathroom for an A-frame ladder:

The motion court properly granted plaintiff’s motion for partial summary judgment on his section 240(1) claim. Plaintiff established prima facie that he was entitled to judgment by evidence that he suffered harm that “flow[ed] directly from the application of the force of gravity” when he fell from the edge of the bathtub, which served as the functional equivalent of a scaffold or ladder … . The evidence showed that there was insufficient room inside the bathroom for plaintiff to use an A-frame ladder and that plaintiff instead was forced to reach the elevated work area by standing on the edge of the bathtub in order to install the shower-curtain rods. Plaintiff testified that standing on the edge of the tub was necessary because he otherwise would lack the necessary leverage to tighten the screws with an Allen wrench.

In opposition, [defendants] failed to raise an issue of fact. They rely on an affidavit by their biomechanical expert, Mr. Bove, who opined that plaintiff’s overhead reach was sufficient to perform the task while standing on the ground or inside the bathtub. Bove’s initial affidavit, however, ignored plaintiff’s testimony that he needed the height in order to have leverage so that he would have enough strength to tighten the screws with the Allen wrench. Vitucci v Durst Pyramid LLC, 2022 NY Slip Op 02968, First Dept 5-3-22

Practice Point: Here plaintiff fell attempting to stand on the edge of a bathtub to install a shower-curtain rod. The majority concluded the edge of the bathtub was the equivalent of a scaffold and plaintiff’s fall was covered under Labor Law 240(1). Two dissenters argued the job could have been performed from ground level.

 

You might also like
QUESTION OF FACT WHETHER INSTALLING CONDENSERS WAS ‘ALTERATION’ WITHIN THE MEANING OF LABOR LAW 241(6); DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).
One Year Statute of Limitations in Labor Law 740 Trumps the One-Year-Ninety-Days Statute of Limitations in General Municipal Law 50-e(5) (Incorporated Into the Health & Hospitals Corporation Act)
DEFENDANT WAS TOLD HE FACED A 45-YEAR SENTENCE AFTER TRIAL WHEN THE ACTUAL SENTENCE WOULD HAVE BEEN CAPPED AT 20 YEARS; DEFENDANT’S DECISION TO PLEAD GUILTY WAS NOT KNOWINGLY AND VOLUNTARILY MADE (FIRST DEPT).
Retainer Agreement in Divorce Action Which Addressed Only Work “Up To” Trial Did Not Allow Recovery of Attorney’s Fees for Trial​
THE JURORS IN THIS ATTEMPTED ROBBERY CASE SAW AN INTERNET VIDEO OF DEFENDANT’S CODEFENDANT VIOLENTLY CAUSING A MAN’S DEATH; THE VIDEO HAD NOT BE INTRODUCED OR MENTIONED AT TRIAL; SUPREME COURT SHOULD HAVE GRANTED THE MOTION TO SET ASIDE THE VERDICT (FIRST DEPT). ​
Eviction Based Upon Firearm and Drugs Found in Petitioner’s Apartment Affirmed Despite the Lack of Evidence Petitioner Was Aware the Items Were In the Apartment (Apparently They Were Brought Into the Apartment by Her Older Children) and Despite Petitioner’s Unblemished Record as a Tenant
PLAINTIFF, WORKING FOR A SUBSIDIARY OF VERIZON, WAS INJURED LAYING A CABLE UNDER A CITY STREET; THE MAJORITY HELD THERE WERE QUESTIONS OF FACT WHETHER A FRANCHISE AGREEMENT BETWEEN THE CITY AND VERIZON AND/OR THE ISSUANCE OF A CITY PERMIT RENDERED THE CITY A PROPER DEFENDANT; A TWO-JUSTICE DISSENT DISAGREED (FIRST DEPT).
THE ATTORNEY’S FAILURE TO NOTIFY THE CLIENT OF THE CLIENT’S RIGHT TO ARBITRATE A FEE DISPUTE WITHIN TWO YEARS OF WHEN THE LEGAL SERVICES WERE RENDERED PRECLUDES THE ATTORNEY’S ACTION FOR PAYMENT OF THE FEE (FIRST DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE FRAUD CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED BECAUSE IT WAS NOT... ALTHOUGH PLAINTIFF FELL FROM THE SCAFFOLDING SYSTEM CONSTRUCTED BY SWING, A...