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PLAINTIFF WAS TAKING DOWN A PLYWOOD FENCE WHEN A PIECE OF PLYWOOD FELL AND STRUCK HIM ON THE HEAD; PLAINTIFF DID NOT SUBMIT SUFFICIENT PROOF THE INCIDENT WAS ELEVATION-RELATED; HIS MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was not entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff was tasked with taking down a plywood fence when a piece of plywood struck his head. The Second Department held that plaintiff did not present sufficient evidence demonstrating the incident was elevation-related:

With respect to “falling object” cases, “Labor Law § 240(1) applies where the falling of an object is related to a significant risk inherent in . . . the relative elevation . . . at which materials or loads must be positioned or secured” … . A plaintiff “must demonstrate that at the time the object fell, it either was being hoisted or secured, or required securing for purposes of the undertaking” … .

Here, the plaintiff failed to eliminate all triable issues of fact as to whether the accident was the result of an elevation-related hazard or gravity-related risk encompassed by Labor Law § 240(1) … . The plaintiff failed to establish his height or the height and weight of the plywood sheet that struck him … . Further, the plaintiff failed to eliminate triable issues of fact as to how the accident occurred and whether, under the circumstances of this case, this was a situation where a securing device of the kind enumerated in Labor Law § 240(1) would have been necessary or even expected … . Joya v E 31 Partners, LLC, 2025 NY Slip Op 04461, Second Dept 7-30-25

Practice Point: Here plaintiff was taking down a plywood fence when a piece of plywood “fell” and struck him on the head. The Second Department held plaintiff did not present sufficient evidence to demonstrate the accident was “elevation-related.” Therefore he was not entitled to summary judgment. Before moving for summary judgment consult the statutory requirements for a violation of Labor Law 240(1).​

 

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