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THE COLLAPSE OF A NEIGHBORING STRUCTURE WAS FORESEEABLE; PLAINTIFF, WHO WAS STRUCK BY A PIECE OF CONCRETE FROM THE STRUCTURE, WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined the collapse of a neighboring structure which resulted in a piece of concrete striking the plaintiff, was foreseeable. Therefore the plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action:

Contrary to defendants’ position, the event was foreseeable, rendering Labor Law § 240(1) applicable and summary judgment on that claim appropriate … . Whether the collapse of a permanent structure is foreseeable is analyzed “not in a strict negligence sense, but in the sense of foreseeability of exposure to an elevation-related risk” … . Here, the possibility of insecurity in the foundation developing after adjacent demolition was well known to defendants, as evinced by the need for a support plan in the first instance. As noted by an expert engaged by defendants themselves in earlier motion practice, photographs of the facade showed poorly consolidated and deteriorated concrete with numerous voids, obvious discontinuities, several cold unbonded joints, and the appearance of having been constructed without steel reinforcing bars. It was thus foreseeable that the newly exposed and unsupported wall, or a portion thereof, would fail.

Moreover, plaintiffs established that [plaintiff’s] injuries were caused by the lack of any safety device of the kind enumerated in Labor Law § 240(1) to secure the neighboring foundation. Plaintiffs’ expert established that defendants failed to properly underpin the foundation of the adjoining building by bracing and shoring the “poor conditions of the concrete and the obvious presence of cold joints within the excavated pins of the underpinning work.” Moises-Ortiz v FDB Acquisition LLC, 2025 NY Slip Op 05746, First Dept 10-16-25

Practice Point: Here the collapse of the neighboring structure, injuring plaintiff, was foreseeable, entitling plaintiff, who was injured by the collapse, to summary judgment on his Labor Law 240(1) cause of action.

 

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ONE OF THE THREE DEFENDANTS, THE OWNER OF THE OTHER TWO, WAS NOT SHOWN TO BE LIABLE UNDER THE LABOR LAW; THEREFORE THE $10,000,000 PUNITIVE-DAMAGES JUDGMENT AGAINST THE OWNER SHOULD NOT HAVE BEEN AWARDED; NEW YORK DOES NOT RECOGNIZE AN INDEPENDENT CAUSE OF ACTION FOR PUNITIVE DAMAGES (SECOND DEPT).

The Second Department, reversing the $10,000,000 judgment for punitive damages in this Labor Law 220, 240(1) and 241(6) action, noted that New York does not recognize an independent cause of action for punitive damages. Summary judgment was granted against two defendants. but was denied with respect to Berger, the owner of the other two defendants. The jury was instructed to decide whether to award punitive damages based on Berger’s conduct and did so:

The plaintiff and his wife …, with leave of court, served an amended complaint to add a claim for punitive damages. The defendants answered the amended complaint, and the matter proceeded to a trial limited to the issue of damages. After both parties rested, the jury was instructed to decide whether to award punitive damages based upon conduct of Berger. The jury awarded the plaintiff and his wife punitive damages in the sum of $10,000,000, and the Supreme Court entered a judgment … in favor of the plaintiff and his wife and against the defendants … in the principal sum of $10,000,000 for punitive damages. The defendants appeal from that portion of the judgment.

“New York does not recognize an independent cause of action for punitive damages. Instead, ‘[a] demand or request for punitive damages is parasitic and possesses no viability absent its attachment to a substantive cause of action'” … . Here, the Supreme Court erroneously instructed the jury that the issue of Berger’s liability had already been determined against him, and the jury was not asked to consider Berger’s liability under the Labor Law or otherwise. Because Berger was never determined to be liable with respect to any substantive cause of action, no punitive damages could be awarded based upon his alleged conduct … . Petrosian v B & A Warehousing, Inc., 2025 NY Slip Op 05708, Second Dept 10-15-25

Practice Point: Here plaintiffs were awarded a $10,000,000 punitive-damages judgment against a defendant who was not determined to have been liable. New York does not recognize an independent cause of action for punitive damages. The punitive-damages judgment was therefore reversed.

 

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DEFENDANTS RELIED ON A STATEMENT TRANSLATED FROM SPANISH ATTRIBUTED TO PLAINTIFF BUT FAILED TO SHOW THAT THE TRANSLATION WAS PROVIDED BY A COMPETENT, OBJECTIVE INTERPRETER WHOSE TRANSLATION WAS ACCURATE; THEREFORE THE STATEMENT DID NOT RAISE A QUESTION OF FACT IN THIS LADDER-FALL CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this ladder-fall case. Plaintiff testified the unsecured ladder moved and he fell, which made out a prima facie case under Labor Law 240(1). Defendants attempted to raise a question of fact by submitting a statement plaintiff allegedly made to his foreman in Spanish, but defendants presented no evidence that the translation was accurate:

… [P]laintiff demonstrated his prima facie entitlement to judgment as a matter of law on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendants. In support of his motion, the plaintiff submitted, inter alia, a transcript of his deposition testimony, which established that the unsecured ladder moved, causing him to fall … . In opposition, the defendants failed to raise a triable issue of fact. The documents submitted by the defendants in opposition to the plaintiff’s motion, which relied on a statement the plaintiff allegedly made to his foreman in Spanish, were insufficient to raise a triable issue of fact. The defendants did not submit any deposition testimony or affidavit from the foreman, and they failed to show that the translation of the statement was provided by a competent, objective interpreter whose translation was accurate … . Batis v 85 Jay St. (Brooklyn), LLC, 2025 NY Slip Op 04619, Second Dept 8-13-25

Practice Point: Before a court will consider a statement translated from another language, the party offering the statement must show the translation was provided by a competent, objective interpreter whose translation was accurate.

 

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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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THERE IS A QUESTION OF FACT WHETHER PLAINTIFF WAS DEFENDANT’S EMPLOYEE SUCH THAT THE PROTECTIONS OF THE LABOR LAW APPLY IN THIS LADDER-FALL CASE; DEFENDANT AGREED TO FIX PLAINTIFF’S CAR IN RETURN FOR PLAINTIFF’S FIXING THE ROOF OF DEFENDANT’S REPAIR SHOP (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether the relationship between defendant Houghtaling and plaintiff was an “employment” relationship such that the Labor Law applies to plaintiff’s fall from a ladder. Houghtaling agreed to repair plaintiff’s car in return for plaintiff’s seal-coating the roof of defendant’s automotive repair ship. Houghtaling argued plaintiff was a “volunteer,” not an employee:

… [T]he defendants failed to eliminate triable issues of fact as to whether the plaintiff was a hired worker entitled to the protections of the Labor Law. Houghtaling, who owned and operated the repair shop, testified at his deposition that a friend of the plaintiff had approached him about helping the plaintiff, who was “down and out,” by fixing the plaintiff’s car. Houghtaling responded that the plaintiff should bring in his car and that he would “do the best that [he] c[ould], like [he did] for everybody.” When the plaintiff came in, Houghtaling told him that the repairs would cost $900. The plaintiff asked what he could do for Houghtaling “in return.” According to Houghtaling, the roof of the shop had been leaking for five years and he had intended to fix the roof himself. Houghtaling told the plaintiff that he could seal coat the roof of the shop. Houghtaling performed the repairs on the plaintiff’s car at no charge, and the following weekend, the plaintiff began the work on the roof.

Under these circumstances, triable issues of fact remain as to whether the arrangement between the plaintiff and Houghtaling bore “the traditional hallmarks of an employment relationship” … , including a “mutual obligation . . . revealing an economic motivation for completing the task” and the employer’s right to decide “whether the task undertaken by the employee has been completed satisfactorily” … . Zampko v Houghtaling, 2025 NY Slip Op 04507, Second Dept 7-30-25

Practice Point: The protections of the Labor Law apply where there is a employment relationship between plaintiff and defendant. Here defendant agreed to fix plaintiff’s car in return for plaintiff’s repairing the repair shop’s roof. Plaintiff fell from a ladder when working on the roof. There was a question of fact whether the agreement created an employment relationship entitling plaintiff to the Labor Law protections.

 

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HEARSAY STATEMENTS IN A MEDICAL RECORD ARE ADMISSIBLE IN A PERSONAL INJURY ACTION WHEN (1) THE STATEMENTS ARE GERMANE TO DIAGNOSIS AND TREATMENT AND (2) THE STATEMENTS CAN BE ATTRIBUTED TO THE PLAINTIFF (SECOND DEPT).

The Second Department, affirming the denial of plaintiff’s summary judgment motion, in a full-fledged opinion by Justice Connolly, determined that hearsay statements attributed to plaintiff in a medical record were admissible and created a question fact in this Labor Law 240(1) ladder-fall case. Plaintiff alleged he was knocked off an A-frame ladder by a piece of sheetrock. However, the medical record indicated he was on a ladder lifting sheetrock when he felt a pull in his lower back and shoulder. The opinion is comprehensive and offers guidance to the admissibility of hearsay statements in a medical record:

The first page of the Precision Pain medical records contains, among other things, the following statement: “Accident: Patient was on a ladder, was picking up heavy [sheetrock] and felt a pull on his lower back and R shoulder.” On the third and fourth pages, the following three statements appear: “Incident patient described the competent medical cause of this injury? YES. “Are the patient’s complaints consistent with his/her history of injury? YES. “Is the patient’s history of the injury consistent with my objective findings? YES.” * * *

Because we find that the challenged statement was germane to medical diagnosis and treatment, we conclude that it was part of Khaimov’s [the doctor’s] regular business practice to record the challenged statement.

Nevertheless, this conclusion “satisfies only half the test” … . Each participant in the chain producing the challenged statement in the Precision Pain medical records, “from the initial declarant to the final entrant, must be acting within the course of regular business conduct or the declaration must meet the test of some other hearsay exception” … . Firsthand accounts from the patient to the medical provider are presumptively reliable, as the patient has a clear motivation to report accurately … . However, “where the source of the information on the hospital or doctor’s record is unknown, the record is inadmissible” … . * * *

Considering both the plaintiff’s deposition testimony and the statements on the third and fourth pages of the Precision Pain medical records, [defendant] sufficiently established that the plaintiff was the source of the information in the challenged statement … . Pillco v 160 Dikeman St., LLC, 2025 NY Slip Op 04495, Second Dept 7-30-25

Practice Point: Consult this opinion for a comprehensive discussion of the two-prong test for the admissibility of hearsay statements in a medical record.

 

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THERE IS NO BRIGHT-LINE MINIMUM HEIGHT DIFFERENTIAL FOR AN ELEVATION HAZARD PURSUANT TO LABOR LAW 240(1); HERE A FALL OF 10.5 TO 20 INCHES FROM A STACK OF PALLETS WARRANTED SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action based upon a fall from a height of 10.5 to 20 inches. The court noted that, despite caselaw holding that a fall of 12 inches did not trigger the statute, there is no bright-line minimum height differential for an elevation hazard. Plaintiff was standing on a stack of pallets to operate a masonry saw when a plank broke and he fell:

The fact that plaintiff fell from a height of approximately 10 ½ to 20 inches is not a bar to summary judgment because the height differential is not, as a matter of law, de minimis. While this Court has previously held that a height differential of at most 12 inches above the floor was insufficient to find an elevation-related risk … , the jurisprudence of this Court has since evolved, recently reiterating that “[t]here is no bright-line minimum height differential that determines whether an elevation hazard exists” … . We have repeatedly found violations of Labor Law § 240(1) predicated upon falls from similar heights as the one at bar (see Ferguson v Durst Pyramid, LLC, 178 AD3d 634, 635 [1st Dept 2019] [fall from inverted bucket]; see also Megna, 306 AD2d at 164 [fall from temporary two-step wooden staircase]; Brown, 137 AD3d at 703-704 [fall through an opening in latticework rebar deck to plywood 12 to 18 inches below]; Arrasti, 60 AD3d at 583 [fall from ramp to the floor 18 inches below]; Haskins, 227 AD3d at 409 [fall into hole 2 to 2 ½ feet deep]). Furthermore, here, the senior superintendent of defendant Tishman Construction Corporation of New York admitted that the makeshift pallet structure was an “improper work platform” that was “against the most basic safety rules.” Palumbo v Citigroup Tech., Inc., 2025 NY Slip Op 04298, First Dept 7-24-25

Practice Point: There is no bright-line minimum height differential for an elevation hazard which will trigger liability under Labor Law 240(1). Here a fall of between 10.5 and 20 inches from a stack of pallets warranted summary judgment.

 

PLAINTIFF STEPPED IN A HOLE WHEN DELIVERING TILES TO THE WORK SITE; HE WAS PERFORMING WORK “NECESSARY AND INCIDENTAL” TO THE INSTALLATION OF THE TILES AND THEREFORE WAS PROTECTED BY LABOR LAW 240(1); A SUBCONTRACTOR WILL NOT BE LIABLE UNDER THE LABOR LAW AS A STATUTORY AGENT OF THE OWNER OR GENERAL CONTRACTOR UNLESS THE SUBCONTRACTOR HAS AUTHORITY OVER THE AREA WHERE PLAINTIFF WAS INJURED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff was delivering tiles to the construction site when he stepped into a hole near the loading ramp. Although plaintiff was not himself engaged in work covered by Labor Law 240(1), he was performing work “necessary and incidental” to the installation of the tiles. The court noted that the action against a subcontractor was properly dismissed because the subcontractor did not exercise any authority over the area where plaintiff was injured and therefore could not be considered a “statutory agent” under the Labor Law:
Labor Law § 240(1) protects persons engaged “in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.” The task that a plaintiff is performing at the exact moment of their accident is not dispositive of whether they were engaged in a protected activity for purposes of liability under this statute … . Rather, the inquiry includes whether the plaintiff’s employer was contracted to perform the kind of work enumerated in the statutes … and whether the plaintiff was performing work “necessary and incidental to” a protected activity … . Because plaintiff’s work in delivering and unloading tiles to be used in the activity covered by Labor Law § 240(1) was “necessary and incidental” to the protected activity, he was within the class of workers protected by those statues, notwithstanding that he was not assigned to participate in the installation of the tiles … .
… Labor Law §§ 200, 240(1), and 241(6) only apply to owners, general contractors, and their statutory agents … . “To be treated as a statutory agent, the subcontractor must have been delegated the supervision and control either over the specific work area involved or the work which [gave] rise to the injury. If the subcontractor’s area of authority is over a different portion of the work or a different area than the one in which the plaintiff was injured, there can be no liability under this theory” … . Here, [the subcontractor’s] work as the electrical contractor was limited to providing electrical installation and temporary lighting, and did not encompass either tile work or maintaining the temporary ramp or surrounding areas. Rodriguez v Riverside Ctr. Site 5 Owner LLC, 2025 NY Slip Op 04221, First Dept 7-17-25
Practice Point: Delivering materials to a work site is necessary and incidental to the construction work and is therefore a covered activity under Labor Law 240(1).
Practice Point:  A subcontractor will not be liable to an injured worker as a statutory agent of the owner or general contractor unless the subcontractor exercises authority over the area where the injury occurred (not the case here).
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AN UNSECURED LADDER THAT SLIPS OUT FROM UNDER THE PLAINTIFF WARRANTS SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on the Labor Law 240(1) cause of action in this ladder fall case should have been granted. The ladder was not secured and slipped out from under the plaintiff, who fell 10 to 12 feet:

“Labor Law § 240(1) imposes upon owners, contractors, and their agents a nondelegable duty to provide workers proper protection from elevation-related hazards” … . “To prevail on a Labor Law § 240(1) cause of action, a plaintiff must prove that the defendant violated the statute and that such violation was a proximate cause of his or her injuries” … . “Whether a device provides proper protection is a question of fact, except when the device collapses, moves, falls, or otherwise fails to support the plaintiff and his or her materials” … . “Specifically, with respect to accidents involving ladders, liability will be imposed when the evidence shows that the subject ladder was . . . inadequately secured and that . . . the failure to secure the ladder[ ] was a substantial factor in causing the plaintiff’s injuries” … .

Here, the plaintiff demonstrated, prima facie, that he was entitled to judgment as a matter of law on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendant. In support of his motion, the plaintiff submitted transcripts of his deposition testimony and the deposition testimony of a witness to his accident which showed that the plaintiff was exposed to an elevation risk within the ambit of Labor Law § 240(1), that the ladder slipped out from under the plaintiff as he descended from the roof, that the ladder fell away from the wall, and that the inadequately secured ladder was a proximate cause of the plaintiff’s injuries … . In opposition, the defendant failed to raise a plausible view of the evidence—enough to raise a triable issue of fact—that there was no statutory violation and that the plaintiff’s own acts were the sole cause of the accident … . Ruiz v Ewan, 2025 NY Slip Op 04032, Second Dept 7-2-25

Practice Point: Here evidence the ladder was tethered to the house after the accident did not raise a question of fact about whether the ladder was unsecured when it slipped out from under plaintiff.

 

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CLAIMANT MADE AN APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM CONCERNING INJURIES INCCURRED WHEN WORKING FOR THE CITY; CLAIMANT WAS ENTITLED TO PRE-ACTION DISCOVERY TO ESTABLISH WHEN THE CITY GAINED ACTUAL KNOWLEDGE OF THE FACTS UNDERLYING THE CLAIM (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined claimant was entitled to pre-action discovery to support his allegation that the city had timely notice of his accident which would warrant leave to file a late notice of claim:

In determining whether to grant an application for leave to serve a late notice of claim, “the court must consider, inter alia, whether the claimant has shown a reasonable excuse for the delay, whether the municipality had actual knowledge of the facts surrounding the claim within 90 days of its accrual, and whether the delay would cause substantial prejudice to the municipality” … . ” ‘While the presence or absence of any single factor is not determinative, one factor that should be accorded great weight is whether the [municipality] received actual knowledge of the facts constituting the claim in a timely manner’ ” … .

… In support of his application, claimant sought, inter alia, any incident reports concerning the accident and any correspondence between respondents concerning the accident. Claimant alleged that he told his employer about the incident five days after it occurred and believed that his employer notified the City of the accident at that time.

… Supreme Court abused its discretion in denying that part of his application seeking pre-action discovery (see CPLR 3102 [c]). Under the circumstances of this case, claimant demonstrated that pre-suit discovery is needed in support of his application for leave to serve a late notice of claim for the purpose of establishing when the City had actual knowledge of the facts constituting the claim … . Matter of Wisnowski v City of Buffalo, 2025 NY Slip Op 03886, Fourth Dept 6-27-25

Practice Point: When applying for leave to file a late notice of claim, demonstrating the municipality had actual knowledge of the facts underlying the claim within 90 days of the accident is crucial. Here the claimant alleged his employer told the city about the accident five days after it occurred. Claimant was entitled to pre-action discovery on that issue.​

 

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