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PLAINTIFF FELL FROM GROUND LEVEL TO A BELOW-GROUND-LEVEL ENTRANCEWAY; HE THEREFORE FELL FROM AN ELEVATED WORK SITE IN THE ABSENCE OF AN ADEQUATE SAFETY DEVICE AND WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined plaintiff, who fell from ground level to a below-ground-level entranceway was entitled to summary judgment on the Labor Law 240(1) cause of action:

Plaintiff, employed as a plumber’s assistant, was injured when he fell over a barrier from the sidewalk level into a below-ground entranceway while attempting to retrieve a pipe at the bottom of the entranceway. Plaintiff was instructed to work near the barrier or “fence” above the underground entranceway to set up a winch, and as such was required to lean over the barrier to perform his work. Thus, even if plaintiff was working on the ground level, he was working on an elevated work site and was not provided with adequate safety devices to protect him from falling over the barrier … . Nunez v Hispanic Socy. of Am., 2026 NY Slip Op 06206, First Dept 10-22-26

Practice Point: Falling from ground level to below ground level in the absence of an adequate safety device warrants summary judgment on a Labor Law 240(1) cause of action.

 

LABOR LAW 240(1) APPLIES TO INJURIES INCURRED WHILE ENGAGED IN CONSTRUCTION WORK AS DEFINED BY THE STATUTE; THE REACH OF LABOR LAW 200 IS NOT CONFINED TO CONSTRUCTION WORK; PLAINTIFF, WHO WAS STRUCK BY LOOSE PIECES OF PLYWOOD, WAS NOT ENGAGED IN CONSTRUCTION WORK WHEN INJURED; THE MOTION TO AMEND THE COMPLAINT TO ADD A LABOR LAW 240(1) CAUSE OF ACTION WAS THEREFORE PROPERLY DENIED; BUT THE MOTION TO AMEND THE COMPLAINT TO ADD A LABOR LAW 200 CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s motion to amend the complaint to add a Labor Law section 200 cause of action should have been granted. Plaintiff was injured when struck by loose pieces of plywood. The motion to amend the complaint to add a Labor Law 240(1) cause of action was properly denied because the statute applies only to injuries incurred in construction activities (for which plaintiff was not employed). However Labor Law 200 deals with the duty to maintain a safe workplace and is not confined to construction work. Therefore the motion to add the Labor Law 200 cause of action should have been granted:

While the reach of Labor Law § 240(1) is not limited to work performed on actual construction sites, the task in which an injured employee was engaged must have been performed during “the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” … . This definition excludes routine maintenance … . The plaintiff’s deposition testimony demonstrated that he was employed as a porter and not in the erection, demolition, repairing, altering, painting, cleaning, or pointing of a building or structure within the meaning of Labor Law § 240(1) when he put his hand on the unsecured plywood … . Accordingly, the Supreme Court providently exercised its discretion in denying that branch of the plaintiff’s motion which was pursuant to CPLR 3025(b) for leave to amend the complaint to add a cause of action alleging a violation of Labor Law § 240(1).

However, the Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff’s motion which was pursuant to CPLR 3025(b) for leave to amend the complaint to add a cause of action alleging a violation of Labor Law § 200. Labor Law § 200 codifies the common-law duty of an owner or general contractor to maintain a safe workplace … . Contrary to the defendants’ contention, the protection of Labor Law § 200 is not confined to construction work but covers all places to which the Labor Law applies … .Neil v Areeba, Inc., 2026 NY Slip Op 05963, Second Dept 10-14-26

Practice Point: The reach of Labor Law 240(1) is confined to construction work. The reach of Labor Law 200 is not so confined.

 

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WHETHER PLAINTIFF FELL FROM THE SIXTH STEP OF AN UNSECURED A-FRAME LADDER OR THE SECOND STEP WAS IRRELEVANT; BOTH ARE COVERED UNDER LABOR LAW 240(1) (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor law 240(1) cause of action in this ladder-fall case. Whether plaintiff fell from the sixth step of the A-frame ladder or the second step was irrelevant:

Plaintiff “established prima facie entitlement to summary judgment on his Labor Law § 240(1) claim by submitting proof, including an expert affidavit, that he fell from an unsecured [eight]-foot A-frame ladder that suddenly moved” as he was removing plywood sheets from the ceiling above him … . Plaintiff’s testimony that he fell from the ladder after it was struck by a falling piece of plywood is uncontroverted. It is irrelevant whether plaintiff was on the sixth step of the ladder when the plywood fell, as he testified, or on the second step of the ladder, as his coworker averred, because a fall from a height of two feet can constitute the type of elevation-related risk that is covered by the protections of Labor Law § 240(1) … .

Defendants’ argument that plaintiff was the sole proximate cause of his accident is unavailing. Even if plaintiff was negligent, it is “conceptually impossible” for a plaintiff’s negligence to be the sole proximate cause where it is shown that defendants’ violation of Labor Law § 240(1) was also a proximate cause of the accident … . In any event, plaintiff was not solely liable for the accident, because he followed his employer’s instruction in performing the work … . De Souza v 4720 Third Ave LLC, 2026 NY Slip Op 05905, First Dept 10-13-26

Practice Point: A fall from the second step of an unsecured A-frame ladder is covered under Labor Law 240(1) (two feet in height).

 

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PLAINTIFF WAS IN A TRENCH AND WAS STRUCK BY CONCRETE WHICH SLID INTO THE TRENCH; THE MAJORITY CONCLUDED CONFLICTING ACCOUNTS OF THE ACCIDENT AND PLAINTIFF’S FAILURE TO USE AVAILABLE LUMBER TO BRACE THE SIDES OF THE TRENCH RAISED QUESTIONS OF FACT; THE DISSENT ARGUED THAT NO MATTER HOW THE ACCIDENT HAPPENED LABOR LAW 240(1) LIABILITY WAS DEMONSTRATED (FALLING OBJECT; ABSENT SAFETY DEVICE) (FIRST DEPT).

The First Department, reversing Supreme Court, over a comprehensive dissent, determined questions of fact precluded summary judgment on plaintiff’s Labor Law 240(1) cause of action. Apparently plaintiff was in a trench when he was struck by a piece of cement. Plaintiff alleged the concrete slid off a backhoe. An eyewitness stated the concrete was dislodged during excavation. The majority concluded there was also a question of fact about whether plaintiff was the sole proximate cause of the accident because lumber to brace the sides of the trench were available and plaintiff was instructed to use it. The dissenter argued that, no matter how the accident happened, plaintiff was injured by a falling object for which Labor Law 240(1) liability attached:

The conflicting accounts raise a credibility determination which is the province of the factfinder … . …

… [T]here are also issues of fact as to whether plaintiff was the sole proximate cause of the accident because he knew or should have known to use an available safety device — namely, lumber braces to brace the sides of the trench … .

From the dissent:

The conflicting accounts of the accident from plaintiff and defendant do not present a triable issue of fact because both versions include a violation of Labor Law § 240(1) as a proximate cause of plaintiff’s injuries … . Plaintiff’s account, for its part, is a basic statutory violation resulting from failure to properly secure a hoisted object … .

Likewise, [the eyewitness’] version involves a statutory violation as a proximate cause. … Labor Law § 240(1) may apply to a falling object due to a trench collapse caused by absent or improper bracing … . Veliu v Verizon N.Y. Inc., 2026 NY Slip Op 05374, First Dept 9-22-26

 

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IF THE LADDER DOESN’T MOVE AND PLAINTIFF LOSES HIS BALANCE AND FALLS, THERE IS NO LIABILITY UNDER LABOR LAW 240(1); BUT IF THE LADDER MOVES FOR NO APPARENT REASON LIABILITY ATTACHES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this ladder-fall case was entitled to summary judgment on the Labor Law 240(1) cause of action. The court clearly explained when Labor Law 240(1) liability is triggered by a fall from a ladder. Even if the ladder moves for no apparent reason, liability attaches:

“To establish a violation under Labor Law § 240(1), ‘[t]here must be evidence that the ladder was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial factor in causing the plaintiff’s injuries'” … . “The collapse of a scaffold or ladder for no apparent reason while a plaintiff is engaged in an activity enumerated under the statute creates a presumption that the ladder or scaffold did not afford proper protection” … . “Where, for instance, the plaintiff falls from a ladder because the plaintiff lost his or her balance, and there is no evidence that the ladder was defective or inadequate, liability pursuant to Labor Law § 240(1) does not attach” … . “By contrast, where a ladder slides, shifts, tips over, or otherwise collapses for no apparent reason, the plaintiff has established a violation” … . Nunez v Trustees of Columbia Univ., 2026 NY Slip Op 05319, Second Dept 9-16-26

Practice Point: Consult this decision for a clear explanation of when Labor Liability 240(1) liability is triggered by a fall from a ladder.​

 

HERE THE PERMANENT STAIRWAY WHERE PLAINTIFF WAS INJURED, THE SOLE VIABLE MEANS OF ACCESS TO THE WORK SITE, CONSTITUTED A “SAFETY DEVICE” WITHIN THE MEANING OF LABOR LAW 240(1); PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the permanent stairway where plaintiff was injured, which had worn or missing treads, was the sole viable means of access to the floors where plaintiff was working. Although another stairway was available, plaintiff was told not to use it because it was used by COVID patients. Therefore plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. The First Department rejected the argument that Labor Law liability was not available because plaintiff was not working on the stairway itself. The First Department also rejected the argument that a permanent stairway is not a statutory safety device:

The statute protects a worker from gravity-related hazards posed by a permanent stairway that “provided the sole means of access to the floors of the building” where the worker was working … . However, the issue of whether a stairway is the sole means of access should not be construed so strictly as to “preclude recovery merely because plaintiff had an alternative means to descend from his work area, especially when that alternative route may have seemed more dangerous than the stairs plaintiff did utilize” … . Here, the only other staircase available to plaintiff at the worksite would have required him to access a stairway used by hospital patients during the height of the COVID-19 pandemic, which he was instructed not to use. As a result, under these facts, the purported alternative staircase did not present a viable means of egress for plaintiff, and the staircase plaintiff used was his sole means of access to his work area … . Moreover, the stairs were defective in that the treads were worn out or missing.

We have considered and rejected … the argument that the statute does not cover permanent staircases … . As we recently explained, “permanent staircases are not categorically excluded from Labor Law 240(1) coverage,” and will qualify as a safety device under the Labor Law where the staircase is the sole means accessing the plaintiff’s work area … .

… Supreme Court improperly concluded that this principle applies only in situations where the plaintiff was required to work on the staircase upon which he fell … .

Supreme Court’s … conclusion that a plaintiff using a permanent staircase as a “passageway” will not give rise to Labor Law 240(1) liability is also misplaced … .  Riley v Memorial Sloan-Kettering Cancer Ctr., 2026 NY Slip Op 05241, First Dept 9-10-26

Practice Point: A permanent stairway which is the sole viable means of access to a work site is a “safety device” within the meaning of Labor Law 240(1).

 

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PLAINTIFF STEPPED BACKWARD TO ALLOW OTHERS TO EXIT THE ELEVATOR; THE FLOOR OF THE ELEVATOR WAS SIX TO TWELVE INCHES ABOVE THE BUILDING FLOOR AND PLAINTIFF SEVERELY INJURED HIS KNEE; THE SIX TO TWELVE INCH GAP WAS NOT THE TYPE OF “ELEVATION RISK” COVERED BY LABOR LAW 240(1) (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the 6 to 12-inch gap between the floor of the elevator and the unfinished floor just outside the elevator door was not the type of “elevation risk” addressed by Labor Law 240(1). Defendants’ motion to dismiss the Labor Law 240(1) action should have been dismissed. However, Supreme Court properly denied defendants’ motion to dismiss the Labor Law 200 cause of action (unsafe condition):

Supreme Court should have granted defendants’ motion for summary judgment to the extent it sought dismissal of the Labor Law § 240(1) cause of action. Not every fall results in the “extraordinary protections of Labor Law § 240(1)” … . The statute protects workers only from those falls stemming from the “extraordinary elevation risks” created by “the relative elevation at which the [work] must be performed” and not from “the usual and ordinary dangers of a construction site” … .

It is true that “there is no bright-line minimum height differential that determines whether an elevation hazard exists” … . However, under the present circumstances, the 6-to-12 inch gap between the elevator doorway and the floor “was not a physically significant height elevation differential to trigger the protection of Labor Law § 240(1)” … . Also, neither the elevator nor the missing ramp was the “functional equivalent of a safety device enumerated in the statute” … . Instead, the record supports a conclusion that plaintiff’s injury arose from the type of “usual and ordinary” perils plaintiff could expect at his job site … . Ambrose v City Univ. Constr. Fund, 2026 NY Slip Op 05060, Second Dept 8-20-26

Practice Point: Here the six to twelve inch gap between the floor of the elevator and the building floor was not the type of “elevation risk” covered by Labor Law 240(1). Labor Law 200 (unsafe condition) may apply.​

 

PLAINTIFF WAS INJURED WHEN A BEAM WHICH WAS BEING HOISTED STARTED SWINGING WHEN PLAINTIFF WAS HOLDING ON TO IT; THE BEAM STRUCK A PILE OF BEAMS ON THE GROUND AND PLAINTIFF WAS “JERKED … FORWARD;” BECAUSE THE BEAM SHOULD HAVE BEEN SECURED AND THE INJURY WAS RELATED TO THE FORCE OF GRAVITY PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff was injured when a beam was being hoisted started swinging with plaintiff’s arm around it, and struck a pile beams, causing plaintiff to be “jerked … forward.”

“Labor Law § 240(1) imposes upon owners, contractors, and their agents a nondelegable duty to provide workers proper protection from elevation-related hazards” … . “Liability is contingent upon ‘the existence of a hazard contemplated in section 240(1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein'” … . In cases involving falling objects, the applicability of the statute does not “depend upon whether the object has hit the worker” but rather “whether the harm flows directly from the application of the force of gravity to the object” … . “In falling object cases, the plaintiff must demonstrate that at the time the object fell, it either was being hoisted or secured, or required securing for the purposes of the undertaking” … .

Here, the plaintiff established, prima facie, [defendants’] liability under Labor Law § 240(1) by submitting, among other things, transcripts of the plaintiff’s deposition testimony and the crane operator’s deposition testimony, which established that the beam being hoisted at the time of the incident was an object that required securing for purposes of the undertaking, and the harm flowed “directly from the application of the force of gravity to the” beam … . Sougstad v OLP Hauppauge, LLC, 2026 NY Slip Op 05050, Second Dept 8-19-26

Practice Point: Here a beam which started swinging when it was hoisted was deemed a “falling object.” Although the “falling object” did not strike plaintiff, his injury was the result of the force of gravity upon the beam which should have been secured. He was therefore entitled to summary judgment on the Labor Law 240(1) cause of action.

 

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THERE WAS A QUESTION OF FACT WHETHER THE CONSTRUCTION MANAGER WAS AN AGENT FOR THE GENERAL CONTRACTOR AND THEREFORE COULD BE LIABLE FOR A DANGEROUS CONDITION AT THE WORK SITE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the defendants” (Petrocelli’s) motion for summary judgment in this case stemming from an injury at a construction site. Petrocelli was the construction manager. There was a question of fact whether Petrocelli could be deemed an agent of the general contractor such that it could be liable for a dangerous condition at the site:

While a construction manager is generally not considered a contractor responsible for the safety of the workers at a construction site pursuant to Labor Law § 200, “it may nonetheless become responsible if it has been delegated the authority and duties of a general contractor, or if it functions as an agent of the owner of the premises” … . “A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done where a plaintiff is injured” … . A role of general supervision “is insufficient to impose liability under the Labor Law” … .

Here, the Petrocelli defendants failed to establish, prima facie, that they did not exercise a significant degree of control and supervision of the construction site such that it was not delegated the authority and duties of a general contractor … , and failed to establish that they lacked constructive notice of the allegedly dangerous condition because they did not submit any evidence to demonstrate that the “dangerous condition did not exist for a sufficient length of time to afford [them] a reasonable opportunity to discover and remedy it” … . Vasquez v 1719 27 ST, LLC, 2026 NY Slip Op 04894, Second Dept 8-5-26

Practice Point: If a construction manager acts as an agent for the general contractor and therefore exercises supervisory control over a work site, the construction manager may be liable for a dangerous condition at the work site.​

 

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A STAIRWAY MAY CONSTITUTE A “SAFETY DEVICE” WITHIN THE MEANING OF LABOR LAW 240(1) AND A STAIRWAY NEED NOT BE DEFECTIVE TO TRIGGER LABOR LAW 240(1) LIABILITY; HERE IT WAS ALLEGED THE STAIRWAY WAS INADEQUATELY ILLUMINATED AND WAS OBSTRUCTED BY A CABLE WHICH CAUSED PLAINTIFF TO TRIP AND FALL (FIRST DEPT). ​

The First Department, affirming the denial of defendant’s (RBS’s) motion for summary judgment, over a two justice dissent, determined that a stairway need not be defective to fall under the coverage of Labor Law 240(1). Here plaintiff alleged the stairway was inadequately illuminated and was obstructed with a cable which caused plaintiff to trip and fall. The stairway can constitute a safety device within the meaning of Labor Law 240(1) and the majority concluded the stairway itself need not be defective to trigger Labor Law 240(1) liability:

Questions of fact exist as to whether the staircase constituted a Labor Law § 240(1) safety device … .

… [In] “the First Department, falls from permanent appurtenances which function as the only means of access are . . . entitled to Labor Law § 240(1) protection,” including “stairways . . . utilized . . . in the performance of the plaintiff’s work.” Consistent with this, RBS cites no controlling caselaw holding that Labor Law § 240(1) does not apply to injuries incurred on stairways that are not structurally defective….  … T]he dissent makes an argument … that Labor Law § 240(1) claims can only be made as to injuries incurred on stairways that are structurally defective. The dissent cites three cases to support its claim that Labor Law § 240(1) claims involving stairways have been sustained only when the stairways involved were structurally defective. However, none of these cases sustained a Labor Law § 240(1) claim; rather, they affirmed denials of summary judgment, and in any event, did not turn on the structural soundness of the staircases at issue … . It is improper for us to decide an issue that appellant did not raise and that respondent was not given an opportunity to address … . Mazzurco v Broadway 52nd L.P., 2026 NY Slip Op 04822, First Dept 7-30-26

Practice Point: In the First Department, a stairway may constitute a safety device within the meaning of Labor Law 240(1) and the stairway itself need not be defective to trigger Labor Law 230(1) liability.

Practice Point: An appeal should not be decided on a ground not raised by the appellant.

 

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