You are here: / / PLAINTIFF FELL FROM A SCAFFOLD WITHOUT GUARDRAILS; DEFENDANTS’ EVIDENCE...
,

PLAINTIFF FELL FROM A SCAFFOLD WITHOUT GUARDRAILS; DEFENDANTS’ EVIDENCE THAT GUARDRAILS WERE AVAILABLE WAS NOT STRONG ENOUGH TO RAISE A QUESTION OF FACT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff in this scaffold-fall case was entitled to summary judgment on his Labor Law 240(1) cause of action. Defendants argued that guardrails for the scaffold were available but plaintiff failed to use them. The First Department held that the evidence of the availability of the guardrails was not strong enough to raise a question of fact:

“Liability under section 240(1) does not attach when the safety devices that plaintiff alleges were absent were readily available at the work site, albeit not in the immediate vicinity of the accident” … . Caselaw has not further defined the meaning of “readily available,” beyond qualifying that a safety device need not be “in the immediate vicinity.” Nonetheless, the seminal Gallagher case itself specifies that the worker should at least “kn[o]w where to find the safety devices” … . Conversely, a defendant may do much to show that safety devices were readily available by showing that the worker knew “exactly where they could be found” … .

While defendants indicated that workers were generally aware that railings were available throughout the site, defendants failed to show that their precise locations were made known to the workers. The affidavits of the three foremen and coworker are conclusory, the record does not specify or even approximate the location of the guardrails, and at oral argument, counsel was unable to specify where these safety devices could be found. Moreover, although the record contains photos of the subject scaffold, there are no photographs of the missing guardrails that might serve as a guide to their possible location. Defendant’s proof demonstrated only “[t]he general availability of safety equipment at a work site [which] does not relieve the defendants of liability” … . Perez v 1334 York, LLC, 2025 NY Slip Op 00066, First Dept 1-7-25

Practice Point: Although a defendant may escape liability in a Labor Law 240(1) action if the plaintiff failed to use available safety equipment, proof of the “general availability” of the safety equipment does not raise a question of fact. The proof of available safety equipment must be specific. Here there was no evidence the defendants even knew where the safety devices were.

 

You might also like
Under Mental Hygiene Law, Claim Made for Payment from Nursing Home Resident’s Guardianship Account During Resident’s Life Had Priority over Claim by Department of Social Services After Resident’s Death
WHERE THE CRITERIA ARE MET SENTENCING AS A PREDICATE FELON IS MANDATORY, DEFENDANT SHOULD HAVE BEEN SO SENTENCED BUT WAS NOT, PEOPLE’S MOTION TO SET ASIDE THE ILLEGAL SENTENCE PROPERLY BROUGHT AND GRANTED.
THE SUPERIOR COURT INFORMATION (SCI) WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT INCLUDED OFFENSES FOR WHICH DEFENDANT WAS NOT HELD FOR GRAND JURY ACTION (FIRST DEPT).
RESPONDENT, THE PREVAILING PARTY IN AN ARBITRATION, WAS ENTITLED TO ATTORNEY’S FEES FOR THE SUBSEQUENT ARTICLE 75 PROCEEDING TO VACATE THE AWARD AND FOR THE APPEAL TO THE APPELLATE DIVISION (FIRST DEPT).
City Was “United in Interest” with Non-Profit Corporation Which Maintained Central Park Pursuant to a Contract with the City—Therefore Plaintiff, Who Was Allegedly Injured by a Truck Owned by the Non-Profit Corporation, Could Amend His Complaint to Include the Non-Profit Corporation After the Statute of Limitations Had Run—However the Extent to Which the City Was “United in Interest” Was Dictated by the Terms of the Contract
THE FIRST DEPARTMENT, AGREEING WITH THE SECOND, DETERMINED THE ADMINISTRATION FOR CHILDREN’S SERVICES (ACS) DOES NOT HAVE THE AUTHORITY TO SUPERVISE A NONRESPONDENT MOTHER WHO HAD BEEN ABUSED BY RESPONDENT FATHER IN THE CHILD’S PRESENCE; THE AUTHORITY TO SUPERVISE A NONRESPONDENT MOTHER IS ONLY TRIGGERED WHEN THE COURT ORDERS THE CHILD REMOVED FROM THE HOME, NOT THE CASE HERE (FIRST DEPT).
PLAINTIFF HAD TO USE AN A-FRAME LADDER ON TOP OF A SCAFFOLD TO REACH THE WORK AREA; THE SCAFFOLD MOVED AND PLAINTIFF FELL TO THE GROUND; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION AND DEFENDANT WAS NOT ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 241 (6) CAUSE OF ACTION (FIRST DEPT).
JURY CONFUSION, STEMMING FROM THE WORDING OF THE SPECIAL VERDICT SHEET, MANDATED A NEW TRIAL.

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 SIX-YEAR STATUTE OF LIMITATIONS BEGAN TO RUN WHEN THE LANDLORD COULD HAVE... THE PEOPLE DID NOT DEMONSTRATE THE OFFICER WHO SEARCHED DEFENDANT’S PERSON...