You are here: / Labor Law-Construction Law
,

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.

 

,

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).
,

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.

 

, , , , ,

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.​

 

,

WHERE AN UNSECURED LADDER MOVES AND PLAINTIFF FALLS, PLAINTIFF CANNOT BE THE SOLE PROXIMATE CAUSE OF THE ACCIDENT; THEREFORE PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action in this ladder-fall case:

… [P]laintiffs established, prima facie, that Labor Law § 240(1) was violated and that the violation was a proximate cause of the injured plaintiff’s injuries by submitting evidence that the unsecured ladder moved and fell, causing the injured plaintiff to fall, and that he was not provided with any safety devices … .

In opposition … defendants … failed to raise a triable issue of fact as to whether the injured plaintiff’s alleged misuse of the ladder was the sole proximate cause of the accident. Where, as here, the injured plaintiff is provided with an unsecured ladder and no safety devices, he cannot be held solely at fault for his injuries … . Garcia v Fed LI, LLC, 2025 NY Slip Op 03795, Second Dept 6-25-25

Practice Point: As long as the failure to provide adequate safety equipment is a proximate cause of a ladder fall, i.e., the failure to secure the ladder to prevent movement, defendant will not be able to win the argument that plaintiff’s actions were to sole proximate cause of the accident. Plaintiff will be entitled to summary judgment on the Labor Law 240(10 cause of action.

 

,

IN THIS LADDER-FALL CASE, CONFLICTING EVIDENCE ABOUT WHETHER A LADDER WAS REQUIRED FOR PLAINTIFF’S WORK MANDATED DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION; RE: THE LABOR LAW 241(6) CAUSE OF ACTION, DEFENDANT-OWNER HAD A NONDELEGABLE DUTY TO ENSURE COMPLIANCE WITH THE LADDER-SAFETY PROVISIONS OF THE INDUSTRIAL CODE, THE OWNER’S LABOR LAW 241(6) LIABILITY IS NOT BASED UPON CONTROL OF THE WORK SITE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact precluding the award of summary judgment to the defendants on the Labor Law 240(1) cause of action in this ladder fall case. There was conflicting evidence whether a ladder was required for the work assigned to plaintiff. In addition, the Labor Law 241(6) cause of action should not have been dismissed on the ground the defendant owner did not exercise control over the worksite because the owner has a nondelegable duty to ensure compliance with the Industrial Code:

Where, as here, “credible evidence reveals differing versions of the accident,” one under which the defendant would be liable and another under which it would not, questions of fact exist making summary judgment inappropriate … . Accordingly, the court should have denied that branch of the defendant’s cross-motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1), regardless of the sufficiency of the plaintiffs’ opposition … .

Labor Law § 241(6) imposes a nondelegable duty on “owners and contractors to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor” … . Because an owner’s duty under Labor Law § 241(6) is nondelegable, the Supreme Court incorrectly concluded that the defendant was entitled to summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6) on the ground that the record was “devoid of any information” that the defendant had “control over the worksite” … . …

12 NYCRR 23-1.21(b)(3)(iv), which requires that ladders “be maintained in good condition” and must not be used if they have “any flaw or defect of material that may cause ladder failure,” is sufficiently specific to support a cause of action under Labor Law § 241(6) …. . Contrary to its contention, the defendant failed to demonstrate, prima facie, that it did not violate this provision. … [Plaintiff] testified that the ladder shook beneath him, and the defendant did not submit evidence of the condition of the specific ladder at issue or the surface on which the ladder was situated … . Under these circumstances, the defendant also failed to demonstrate, prima facie, that it did not violate 12 NYCRR 23-1.21(b)(4)(ii), which provides that “[a]ll ladder footings shall be firm,” and “[s]lippery surfaces and insecure object … . Cabrera v Provident Alpine Partners, L.P., 2025 NY Slip Op 03700,, Second Dept 6-18-25

Practice Point: Here in this ladder-fall case, conflicting evidence about whether a ladder was required for plaintiff’s work mandated denial of defendants’ motion for summary judgment on the Labor Law 240(1) cause of action.

Practice Point: An owner’s liability under Labor Law 241(6) is based on a nondelegable duty, not on whether the owner controls the work site.

 

,

PLAINTIFF WAS STANDING ON AN A-FRAME LADDER WHEN A CEILING TILE DROPPED, THE LADDER WIGGLED, AND PLAINTIFF FELL; PLANTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION; THE LADDER WAS NOT AN ADEQUATE SAFETY DEVICE (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. It was enough to demonstrate the A-frame ladder wiggled when a ceiling tile dropped unexpectedly and there was nothing for plaintiff to grab on to:

Plaintiff established prima facie entitlement to summary judgment on the Labor Law § 240(1) claim through his deposition testimony which showed that the A-frame ladder he was using to perform overhead ceiling-wiring work proved inadequate as a safety device … . Furthermore, we have repeatedly held that “‘[i]t is irrelevant that plaintiff inspected the ladder and found it to be in good order before using it, as [a] plaintiff is not required to demonstrate that the ladder was defective in order to make a prima facie showing of entitlement to summary judgment on his Labor Law 240(1) claim'” … . Plaintiff testified that he was using both hands to perform the overhead ceiling work, when he was suddenly “jolted” by an unexpected drop of a ceiling tile that he was handling, resulting in a “wiggle” in the ladder, which preceded his loss of balance and eventual fall, as there was nothing available for plaintiff to grab onto to brace himself against a fall.

Defendants fail to raise an issue of fact. Contrary to their contention, plaintiff’s fall from the ladder was “directly related to the work that he was performing, as opposed to his own misstep” or an unexplained loss of balance … . To the extent defendants argue that the ladder did not fall until plaintiff first lost his balance, such argument does not, based on the facts here, show that the ladder was an adequate safety device for plaintiff’s task (… [It is “no moment whether the ladder shook prior to plaintiff’s fall, or as defendants maintain, after plaintiff lost his balance and grabbed the top of it to steady himself. In either event, the ladder was an inadequate safety device”]). Daniello v J.T. Magen & Co. Inc., 2025 NY Slip Op 03649, First Dept 6-17-25

Practice Point: Here plaintiff was standing on an A-frame ladder when a ceiling tile dropped, the ladder wiggled, and plaintiff fell because there was nothing for him to grab on to. That is enough for summary judgment on the ground the ladder was not an adequate safety device. There is no need to demonstrate the ladder was defective.

 

WHETHER THE TRENCH WAS THREE OR SEVEN FEET DEEP, PLAINTIFF SHOULD HAVE BEEN PROVIDED WITH A LADDER OR A RAMP TO DESCEND INTO IT BUT WAS TOLD TO JUMP DOWN; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff was injured when he jumped into an excavated trench. Plaintiff testified that the trench was five to seven feet deep and he asked for a ladder but was told to jump down. There was conflicting testimony about the depth of the trench which defendant claimed was 3 1/2 feet deep:

Plaintiff’s descent into the trench constituted an elevation-related hazard within the scope of Labor Law § 240(1) requiring a ladder or ramp for proper protection … . Accordingly, plaintiff made a prima facie case that Navesink and SLS violated Labor Law § 240(1) by failing to provide a ladder or ramp to enable him to safely climb down into the trench, where he was assigned to shovel soil to even out the landscape at the bottom of the trench.

In opposition, defendants failed to raise a triable issue of fact. The witnesses’ varying estimates of the depth of the excavated trench, ranging from around three feet to five feet to seven feet, do not present an issue of fact as to whether plaintiff’s accident resulted from a significant elevation differential … . McCormick v DiPersia, 2025 NY Slip Op 03019, First Dept 5-20-25

Practice Point: Here plaintiff was injured when he jumped into a trench. There was conflicting testimony about the depth of the trench, three to seven feet. Whether the depth was three feet or seven feet, defendant was required to provide a ladder or a ramp to descend into it. Therefore, plaintiff, who was told to jump down, was entitled to summary judgment on the Labor Law 240(1) cause of action.

 

,

PLAINTIFF WAS INJURED WHEN A STEP BROKE AS HE STEPPED ON IT; THE LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE THERE WAS NO SIGN THE STEP WAS DEFECTIVE; HOWEVER, THE LABOR LAW 241(6) CAUSE OF ACTION, BASED ON AN INDUSTRIAL CODE PROVISION REQUIRING THAT A STAIRCASE BE “FREE OF DEFECTS,” PROPERLY SURVIVED SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the Labor Law 200 and negligence causes of action based upon a step which broke when plaintiff stepped on it should have been dismissed, but the Labor Law 241(6) cause of action, based upon the same defective step, properly survived summary judgment:

Defendants, owner and construction manager, are entitled to summary judgment dismissing plaintiff’s negligence and Labor Law § 200 claims … . … [T]he testimony in the record, including plaintiff’s statements that he observed nothing wrong with the stairs when he ascended and descended several times on the day of his accident, demonstrates that there was no visible or apparent damage to the step that broke as he stepped on it … . Thus, any defect with the step was latent so that defendants could not have discovered it upon a reasonable inspection … . * * *

Supreme Court … properly denied summary judgment to defendants on the Labor Law § 241(6) claim, to the extent based on Industrial Code (12 NYCRR) § 23-1.7(f). Defendants fail to show that this provision, which “imposes a duty upon a defendant to provide a safe staircase, free of defects,” does not apply … . Instead, the evidence shows that the step was defective since it broke under plaintiff’s foot … . Solarte v Brearley Sch., 2025 NY Slip Op 02995, First Dept 5-15-25

Practice Point: Here plaintiff was injured when a step broke under his weight. The Labor Law 200 and negligence causes of action should have been dismissed because the defect in the step could not have been detected. However, the Labor Law 240(1) cause of action, based on the same defective step, survived summary judgment because an Industrial Code provision requires that staircases be “free of defects”—an illustration of the stark difference between negligence-based liability and liability based on a regulatory violation.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy