A Three-and-a-Half-Foot Fall from a Railing to a Raised Platform Was Covered by Labor Law 240(1)–Elements of Labor Law 240(1), 200 and 246(1) Causes of Action Explained—Failure to State (in the Pleadings) the Particular Industrial Code Provision Alleged to Have Been Violated Was Not Fatal to the Labor Law 246(1) Cause of Action—Belated Identification of the Code Provision Did Not Prejudice Defendant

The Second Department determined plaintiff’s Labor Law 240(1) cause of action should not have been dismissed.  Plaintiff climbed up scaffolding to access a platform and, as he attempted to climb over the three-and-a-half-foot platform railing, plaintiff fell to the platform and was injured.  Plaintiff was not instructed to access the platform any other way, so plaintiff’s failure to use a ladder located 25 to 30 feet away could not be considered the sole proximate cause of the accident.  In addition, the Second Department noted that the Labor Law 241(6) cause of action should not have been dismissed.  Plaintiff’s failure to state the particular provision of the Industrial Code alleged to have been violated in the complaint or bill of particulars was not fatal to the cause of action.  The belated identification of the relevant code provision involved no new factual allegations and no new theories of liability.  The Second Department also held the Labor Law 200 cause of action should not have been dismissed, explaining the elements.  With respect to the Labor Law 240(1) cause of action, the court wrote:

Labor Law § 240(1) imposes absolute liability on owners, contractors, and their agents when their “failure to provide proper protection to workers employed on a construction site proximately causes injury to a worker” … . However, liability may “be imposed under the statute only where the plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential'” … .

Contrary to the contention of the defendants and Newtron, Labor Law § 240(1) applies to the facts of this case, even though the plaintiff fell only from the railing to the platform … . The plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability on his cause of action alleging a violation of Labor Law § 240(1) by submitting evidence demonstrating that the defendants failed to provide him with an adequate safety device, and that such failure was a proximate cause of his injuries … .

In opposition, the defendants failed to raise a triable issue of fact as to whether the plaintiff’s actions in using the scaffolding and climbing over the railing, rather than using a permanent ladder that was approximately 25 to 30 feet from the scaffolding ladder, to access the permanent platform was the sole proximate cause of his injuries. A plaintiff’s negligence is the sole proximate cause of his or her injuries “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, and plaintiff knew he [or she] was expected to use them but for no good reason chose not to do so, causing an accident” … . Here, there is no evidence that anyone instructed the plaintiff that he was “expected to” use the permanent ladder rather than the scaffolding … . Doto v Astoria Energy II, LLC, 2015 NY Slip Op 04605, 2nd Dept 6-3-15