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PLAINTIFF WAS INJURED WHEN A GRINDER WITH NO GUARD KICKED BACK; THE ALLEGATION PLAINTIFF WAS TOLD TO USE A SLEDGEHAMMER, NOT THE GRINDER, DID NOT RAISE A QUESTION OF FACT; A SLEDGEHAMMER IS NOT A SAFETY DEVICE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on his Labor Law 240(1) and 241(6) causes of action should have been granted. Plaintiff was injured when a grinder with no guard kicked back. The allegation that plaintiff was told to use a sledgehammer, not the angle grinder, did not raise a question of fact:

Plaintiff established prima facie entitlement to summary judgment as to liability on his Labor Law § 241(6) claim insofar as that claim was predicated on a violation of Industrial Code § 23-1.5(c)(3), which mandates that equipment in use shall be kept sound and operable and that damaged equipment shall be immediately repaired, restored, or removed from the job site. …

… [E]ven if plaintiff was negligent by using the grinder instead of the sledgehammer, this at most constitutes comparative negligence, which is insufficient to defeat plaintiff’s motion … .

To the extent that [defendant] argues that plaintiff was recalcitrant in ignoring the alleged instructions to use a sledgehammer and to not use an angle grinder, this is insufficient to raise a triable issue of fact. … [E]ven if the defense were to apply to a Labor Law § 241(6) claim … it has no application where, as here, no adequate safety devices were provided because a sledgehammer is not a safety device.  Terron-Alcantara v Charlie’s Real Estate LLC, 2026 NY Slip Op 03091, First Dept 5-14-26

Practice Point: Comparative negligence does not defeat a Labor Law 240(1) cause of action.

Practice Point: Here, the allegation plaintiff was told to use a sledgehammer, not the unsafe grinder, did not raise a question of fact on the Labor Law 241(6) cause of action.

 

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