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THE SCAFFOLD ON WHICH PLAINTIFF WAS WORKING COLLAPSED FOR NO APPARENT REASON; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION; THE DEFENDANTS’ EXPERT’S AFFIDAVIT WAS CONCLUSORY AND DID NOT RAISE A QUESTION OF FACT; IN ANY EVENT THE EXPERT’S OPINION THAT PLAINTIFF FAILED TO LOCK THE SCAFFOLD SPOKE TO CONTRIBUTORY NEGLIGENCE WHICH IS NOT A DEFENSE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff, who was on a scaffold when it collapsed, was entitled to summary judgment on the Labor Law 240(1) cause of action. Defendants’ expert’s affidavit was conclusory and did not raise a question of fact. The noted that plaintiff’s comparative negligence (the alleged failure to lock all the pins in place) was not a defense to a Labor Law 240(1) cause of action:

The evidence that the scaffold on which plaintiff was working at the time of his accident collapsed under him for no apparent reason established his prima facie entitlement to partial summary judgment on the issue of liability on his Labor Law § 240 (1) claim … . Defendants failed to raise an issue of fact in opposition. Their expert’s opinion that the cause of plaintiff’s accident was his alleged failure to properly lock all of the scaffold’s pins in place was conclusory, and unsupported by anyone “with personal knowledge of the circumstances surrounding plaintiff’s work at the time of the accident” … . “Furthermore, even if it could be established that plaintiff did not lock all the pins in place before ascending the scaffold, this would have amounted to only comparative negligence, which is not a defense to a Labor Law § 240 (1) claim” … . Bialucha v City of New York, 2023 NY Slip Op 06470, First Dept 12-19-23

Practice Point: A scaffold which collapses for no apparent reason supports summary judgment on a Labor Law 240(1) cause of action.

Practice Point: The conclusory affidavit by defendants’ expert did not raise a question of fact.

Practice Point: Contributory negligence is not a defense to a Labor Law 240(1) cause of action.

 

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