You are here: / Labor Law-Construction Law

PLAINTIFF WAS STRUCK BY A PIECE OF UNSECURED PLYWOOD WHICH FELL, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action should have been granted. Plaintiff was struck a a piece of plywood after the supporting vertical post was removed:

Labor Law § 240(1) imposes upon owners, general contractors, and their agents a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites  … . To prevail on a motion for summary judgment in a Labor Law § 240(1) “falling object” case, 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 … . Labor Law § 240(1) does not automatically apply simply because an object fell and injured a worker; a plaintiff must show that the object fell because of the absence or inadequacy of a safety device of the kind enumerated in the statute … .

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law through the submission of his deposition testimony and the affidavit of a coworker who witnessed the accident. These submissions established that the plaintiff was hit by an unsecured [*2]four-by-eight-foot plywood sheet that fell from the first floor ceiling onto the plaintiff as he was walking underneath … . Passos v Noble Constr. Group, LLC, 2019 NY Slip Op 00893, Second Dept 2-6-19

 

, ,

EXPERT TESTIMONY PROPERLY PRECLUDED BECAUSE OF LATE NOTICE, NEW TRIAL REQUIRED BECAUSE JURY WAS NOT INSTRUCTED ON MITIGATION OF DAMAGES (FOURTH DEPT).

The Fourth Department determined defendants in this Labor Law 240 (1) action were properly precluded from offering expert testimony because of late notice. The Fourth Department further determined that the jury should have been instructed on mitigation of damages, requiring a new trial:

… [T]he court determined that there was a willful failure to disclose because, prior to jury selection, defendants’ attorneys knew that they intended to present testimony from the psychiatric expert, but they did not disclose the expert until the day after jury selection began, which violated the court’s directive that defendants disclose an expert as soon as they knew of said expert. Although the record establishes that plaintiff was aware of the possibility that defendants would call an expert psychiatrist, he was prejudiced by the tardiness of the disclosure both because it impaired his ability to discuss the relevant issues during jury selection and because it hamstrung his opportunity to retain an expert psychiatrist of his own. Thus, based on the evidence in the record supporting the court’s determination that defendants had engaged in purposeful gamesmanship by withholding the information, and the resulting prejudice to plaintiff, we conclude that the court did not abuse its discretion in precluding the proposed expert testimony … .

We agree with defendants that the court erred in failing to instruct the jury on mitigation of damages insofar as it applied to past and future lost wages… . Here, plaintiff’s physicians unanimously agreed that he was capable of working in a light duty or sedentary setting and, although he did obtain work shortly after being advised by a doctor to seek job training, there is a question, under the circumstances, of whether the part-time job that he took was a reasonable mitigation of his damages. Flowers v Harborcenter Dev., LLC, 2019 NY Slip Op 00749, Fourth Dept 2-1-19

 

,

DEFENDANT, AN OUT OF POSSESSION LESSEE OF THE PROPERTY WHERE PLAINTIFF WAS INJURED, WAS NOT AN OWNER WITHIN THE MEANING OF LABOR LAW 240 (1) AND 241 (6), DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DISMISSING THOSE CAUSES OF ACTION WAS PROPERLY GRANTED (FOURTH DEPT).

The Fourth Department determined defendant demonstrated it was not an owner of the property where plaintiff was injured and therefore was entitled to summary judgment dismissing the Labor Law 240 (1) and 241 (6) causes of action. Defendant had leased the property from the state and then subleased the property to a non-party (EDGE). EDGE hired Jersen, the construction company for which the injured plaintiff worked:

It is well established that, for purposes of Labor Law §§ 240 (1) and 241 (6) liability, “the term owner’ is not limited to the titleholder of the property where the accident occurred and encompasses a [party] who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for [its] benefit’ “… . ” [The owner] is the party who, as a practical matter, has the right to hire or fire subcontractors and to insist that proper safety practices are followed’ “… . Thus, “[t]he key factor in determining whether a non-titleholder is an owner’ is the right to insist that proper safety practices were followed and it is the right to control the work that is significant, not the actual exercise or nonexercise of control’ ” … . …

In his affidavit, Jersen’s project manager averred that defendant was neither a party to nor involved with the negotiation of the construction contract between EDGE and Jersen; the project manager never saw any employees or representatives of defendant on site during the project; Jersen employees were not permitted to take orders from anyone other than an authorized Jersen representative; and defendant had no authority or control over Jersen employees working on the project. Those averments are consistent with the construction contract, which defined EDGE as the “[o]wner” and Jersen as the “[c]ontractor,” and provided that Jersen, as the “[c]ontractor,” was solely responsible for instituting and supervising all safety precautions and protections. Contrary to plaintiffs’ contention, the mere fact that the sublease between defendant and EDGE required defendant’s approval of the plans and specifications for the project work does not raise a material issue of fact where, as here, defendant did not contract to have the project work performed and the sublease “did not vest [defendant] with authority to determine which contractors to hire, . . . control the [project] work or . . . insist that proper safety practices [be] followed’ ” … . Ritter v Fort Schuyler Mgt. Corp., 2019 NY Slip Op 00769, Fourth Dept 2-1-19

 

REMOVING ICE AND SNOW FROM THE ROOF OF A COMMERCIAL BUILDING IS COVERED UNDER LABOR LAW 240 (1), IT DOESN’T MATTER WHETHER PLAINTIFF WAS INJURED FROM THE FALL FROM THE BUCKET OF THE BACKHOE OR FROM BEING STRUCK BY THE BACKHOE (WHICH WAS BEING USED TO LIFT PLAINTIFF TO THE ROOF), PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FOURTH DEPT).

The Fourth Department determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action was properly granted. Plaintiff fell from the bucket of a backhoe which was being used to lift him to the roof, where he was to remove snow and ice:

Labor Law § 240 (1) “applies where an employee is engaged in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure’ ” … . We conclude that, contrary to defendant’s contention, the removal of snow and ice from the roof of a commercial building, under these circumstances, constitutes a form of “cleaning,” thereby bringing it within the ambit of Labor Law § 240 (1) … .

We reject defendant’s contention that plaintiff was not injured by an elevation-related risk within the scope of Labor Law § 240 (1). Plaintiff established the necessary elements for liability under section 240 (1) by submitting evidence that he suffered “harm directly flowing from the application of the force of gravity to an object or person”… , and defendant did not raise a question of material fact… .

… [P]aintiff is entitled to summary judgment irrespective of whether his injuries were caused by the fall itself or by being struck by the backhoe in the moments immediately following the fall. “To establish a prima facie case plaintiff need not demonstrate that the precise manner in which the accident happened or the injuries occurred was foreseeable; it is sufficient that he demonstrate that the risk of some injury from defendants’ conduct was foreseeable” … . “Thus, a plaintiff merely has to demonstrate that he or she was injured when an elevation-related safety device failed to perform its function to support and secure him from injury”… . Here, the safety equipment provided to plaintiff did not prevent him from falling; thus, the core objective of Labor Law § 240 (1) was not met … . Plaintiff’s injury was a normal and foreseeable consequence of the failure of the safety equipment … . Burns v Marcellus Lanes, Inc., 2019 NY Slip Op 00801, Fourth Dept 2-1-19

 

PLAINTIFF FELL ABOUT NINE FEET FROM ONE FLOOR TO ANOTHER, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff fell from one floor to another, a distance of about nine feet:

There is no dispute that plaintiff fell from the seventh floor to the sixth floor of the building on which he was working, a distance of approximately nine feet. Further, it is undisputed that there were no safety harnesses or other safety devices for plaintiff to use. “Thus, the fact that the parties offered different versions of plaintiff’s accident makes no difference with respect to defendants’ liability under Labor Law § 240(1). Under either version, defendants . . . failed to secure an area at a construction site from which a fall could occur, thereby exposing the injured worker to an elevation-related risk” … .

However, the motion court properly denied the cross motion of defendants/third-party plaintiffs on the Labor Law §§ 241(6), 200, and common-law negligence claims, since there are triable issues of fact as to exactly how, where and why the underlying incident occurred … . Cashbamba v 1056 Bedford LLC, 2019 NY Slip Op 00690, Second Dept 1-31-19

 

ALLEGATION THE LADDER PLAINTIFF WAS USING SHIFTED FOR NO APPARENT REASON ENTITLED PLAINTIFF TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (SECOND DEPT).

The Second Department determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action based upon the allegation the ladder he was using shifted for no apparent reason:

The plaintiff made a prima facie showing of entitlement to judgment as a matter of law through his deposition testimony, demonstrating that the ladder on which he was working shifted for no apparent reason, causing him to fall … . In opposition, the defendants failed to raise a triable issue of fact … . Vicuna v Vista Woods, LLC, 2019 NY Slip Op 00635, Second Dept 1-30-19

 

PLAINTIFF WAS INJURED UNLOADING A TRUCK, HIS MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on the Labor Law 240 (1) cause of action should have been granted. Plaintiff was injured when a truck was being unloaded:

A hydraulic lift was being used to lower the flooring materials in pallets, or “skids,” weighing approximately 2,500 to 3,000 pounds, from the bed of the truck to the ground, an elevation of approximately four feet. One of the skids, which had been loaded onto the lift, fell off the lift and struck the plaintiff. …

” Labor Law § 240(1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person'” … . The plaintiff’s evidence established, prima facie, that the … defendants violated Labor Law § 240(1) by failing to provide an appropriate safety device to secure the subject materials as they were being lowered, and that this failure was a proximate cause of the plaintiff’s injury … . Ramos-Perez v Evelyn USA, LLC, 2019 NY Slip Op 00629, Second Dept 1-30-19

 

,

PLAINTIFF’S DECEDENT WAS NOT ENGAGED IN CONSTRUCTION WORK COVERED BY LABOR LAW 240 (1) AND 241 (6) WHEN A BRIDGE FORM HE WAS UNLOADING FELL ON HIM, PLAINTIFF MADE A SUFFICIENT SHOWING OF LONG-ARM JURISDICTION TO WARRANT DISCOVERY (THIRD DEPT).

The Third Department determined the Labor Law 240 (1) and 241 (6) causes of action were properly dismissed because plaintiff’s decedent was not involved in construction work when a 2500 pound bridge form fell on him. The court further found that plaintiff had made a sufficient showing that long-arm jurisdiction may apply to Spillman, the manufacturer of the bridge form, to allow discovery:

In support of her claimed violations of Labor Law §§ 240 (1) and 241 (6), plaintiff alleged that, at the time that decedent sustained the fatal injuries, he had been unloading a bridge form that had been delivered to the manufacturing facility operated by LHV so that it could be used in the manufacture and fabrication of construction materials that would be eventually used during unspecified construction at an unspecified construction site. As Supreme Court aptly concluded, these allegations “do not support any contention that the work being done at the time of the incident was, in any manner, an integral part of an ongoing construction contract or was being performed at an ancillary site, incidental to and necessitated by such construction project, where the materials involved were being readied for use in connection with a covered activity,” so as to bring it within the ambit of Labor Law § 240 (1) … . …

For the same reasons, plaintiff’s factual allegations did not support a conclusion that decedent’s injuries occurred in an “area[] in which construction, excavation or demolition work [was] being performed” (Labor Law § 241 [b]) and, thus, Supreme Court’s dismissal of plaintiff’s Labor Law § 241 (6) claim was proper … . …

Viewing the facts in the light most favorable to plaintiff as the nonmoving party, we agree with Supreme Court that the foregoing provided the “sufficient start” required to warrant further discovery on the issue of whether personal jurisdiction may be properly exercised over Spillman under CPLR 302 (a) (3), while also comporting with federal due process requirements … . Archer-Vail v LHV Precast Inc., 2019 NY Slip Op 00341, Third Dept 1-17-19

 

ALTHOUGH PLAINTIFF ALLEGED THAT THE A-FRAME LADDER TOPPLED OVER, THERE WERE QUESTIONS OF FACT WHETHER THE LADDER WAS AN ADEQUATE SAFETY DEVICE AND, IF NOT, WHETHER THE LADDER WAS THE PROXIMATE CAUSE OF THE FALL, THE TRIAL COURT PROPERLY DENIED PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT (SECOND DEPT).

The Second Department determined plaintiff’s (Loretta’s) motion for summary judgment in this Labor Law 240 (1) action was properly denied, and the trial court properly denied plaintiff’s motion to set aside the defense verdict. Apparently plaintiff alleged the A-frame latter toppled over when he was attempting to install a pipe. The facts of the case were not discussed, but there were questions of fact whether the ladder was an adequate safety device and, if not, whether the ladder was the proximate cause of the fall:

We agree with the Supreme Court’s determination to deny that branch of the plaintiffs’ motion pursuant to CPLR 4404(a) which was to set aside the verdict and for judgment as a matter of law, as there was a valid line of reasoning and permissible inferences which could have led a rational jury to conclude that the ladder furnished to Loretta was adequate to protect him from the hazards arising from his work. The jury could have credited Loretta’s deposition and trial testimony that he did not remember if he was twisting the vertical pipe at the time of the accident, as well as the trial testimony of the plaintiff’s engineering expert that, if the ladder did not topple over as Loretta was twisting the vertical pipe, the expert’s opinion that the ladder was an inadequate safety device would be different, to rationally conclude that the plaintiffs did not meet their burden of demonstrating that the ladder was an inadequate safety device. We also agree with the court’s determination to deny that branch of the plaintiffs’ motion which was to set aside the verdict as contrary to the weight of the evidence. A fair interpretation of the evidence could have led the jury to reach its verdict that the ladder was an adequate safety device. Accordingly, we agree with the court’s denial of the plaintiffs’ motion pursuant to CPLR 4404(a) … . Loretta v Split Dev. Corp., 2019 NY Slip Op 00265, Second Dept 1-16-19

 

PLAINTIFF’S DEPOSITION TESTIMONY INDICATED HIS FALL FROM AN A-FRAME LADDER WAS NOT CAUSED BY A DEFECT IN THE LADDER, PLAINTIFF LOST HIS BALANCE WHILE HOLDING A PIECE OF SHEETROCK, LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined the Labor Law 240 (1) cause of action against the homeowner (Recio) was properly dismissed. Plaintiff alleged he fell from the third rung of a six-foot A-frame ladder. Plaintiff’s deposition testimony demonstrated the ladder did not fail. Plaintiff simply lost his balance while holding a piece of sheetrock:

Recio demonstrated her prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 240(1) cause of action by submitting, inter alia, the plaintiff’s deposition testimony, which showed that the ladder from which the plaintiff fell was not defective or inadequate and that the ladder did not otherwise fail to provide protection. The evidence showed that the plaintiff fell because he lost his balance … . Pacheco v Recio, 2019 NY Slip Op 00291, Second Dept 1-16-19

 

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