PLAINTIFF WAS INJURED WHEN HE ATTEMPTED TO AVOID A FALL FROM A SCAFFOLD WHEN THE PLANK HE WAS STANDING ON SHIFTED; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff was injured when he attempted to avoid a fall from a scaffold when a plank he was standing on shifted:

… [T]he plaintiff made a prima facie showing of entitlement to judgment as a matter of law on the issue of liability on so much of the cause of action alleging a violation of Labor Law § 240(1) through the submission of the plaintiff’s affidavit and a copy of the transcript of his deposition testimony “which demonstrated that the scaffold failed to afford him proper protection for the work being performed, and that this failure was a proximate cause of his injuries” … . In opposition, the defendants failed to raise a triable issue of fact. “They did not offer any evidence, other than mere speculation, to refute the plaintiff[‘s] showing or to raise a bona fide issue as to how the accident occurred” … . The defendants’ contention that the alleged injuries were only tangentially related to the effects of gravity and/or an elevation-related risk is without merit … .  Wilson v Bergon Constr. Corp., 2023 NY Slip Op 04616, Second Dept 9-13-23

Practice Point: Apparently the plaintiff was injured when he attempted to avoid a fall from a scaffold. It is not clear whether plaintiff actually fell. Even so, he was entitled to summary judgment on the Labor Law 240(1) cause of the action.