You are here: / Labor Law-Construction Law
,

PLAINTIFF FELL FROM A SCAFFOLD WITHOUT GUARDRAILS; DEFENDANTS’ EVIDENCE THAT GUARDRAILS WERE AVAILABLE WAS NOT STRONG ENOUGH TO RAISE A QUESTION OF FACT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff in this scaffold-fall case was entitled to summary judgment on his Labor Law 240(1) cause of action. Defendants argued that guardrails for the scaffold were available but plaintiff failed to use them. The First Department held that the evidence of the availability of the guardrails was not strong enough to raise a question of fact:

“Liability under section 240(1) does not attach when the safety devices that plaintiff alleges were absent were readily available at the work site, albeit not in the immediate vicinity of the accident” … . Caselaw has not further defined the meaning of “readily available,” beyond qualifying that a safety device need not be “in the immediate vicinity.” Nonetheless, the seminal Gallagher case itself specifies that the worker should at least “kn[o]w where to find the safety devices” … . Conversely, a defendant may do much to show that safety devices were readily available by showing that the worker knew “exactly where they could be found” … .

While defendants indicated that workers were generally aware that railings were available throughout the site, defendants failed to show that their precise locations were made known to the workers. The affidavits of the three foremen and coworker are conclusory, the record does not specify or even approximate the location of the guardrails, and at oral argument, counsel was unable to specify where these safety devices could be found. Moreover, although the record contains photos of the subject scaffold, there are no photographs of the missing guardrails that might serve as a guide to their possible location. Defendant’s proof demonstrated only “[t]he general availability of safety equipment at a work site [which] does not relieve the defendants of liability” … . Perez v 1334 York, LLC, 2025 NY Slip Op 00066, First Dept 1-7-25

Practice Point: Although a defendant may escape liability in a Labor Law 240(1) action if the plaintiff failed to use available safety equipment, proof of the “general availability” of the safety equipment does not raise a question of fact. The proof of available safety equipment must be specific. Here there was no evidence the defendants even knew where the safety devices were.

 

, ,

PLAINTIFF’S MOTION TO RENEW HIS SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED; NO “NEW FACTS” WERE DEMONSTRATED (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court in this Labor Law 240(1) action, determined plaintiff’s motion to renew his summary judgment motion should not have been granted. Plaintiff was attempting to disassemble a freezer when the freezer roof collapsed and he fell to the floor:

Pursuant to CPLR 2221, a motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” and “shall contain reasonable justification for the failure to present such facts on the prior motion” … . In his motion for leave to renew and reargue, plaintiff sought to admit a supplemental expert affidavit in which plaintiff’s expert sought to clarify that accessing the freezer’s ceiling was an essential task of disassembly. Plaintiff averred that this information was not proffered before because he was not on notice that he needed to address the different tasks required for disassembly. However, our review of the original motion papers reveals that, not only did the expert’s original affidavit briefly address the need for plaintiff to climb on top of the freezer, but also that [defendant’s] affirmations in opposition were sufficient to put plaintiff on notice that the necessity of plaintiff’s work on the ceiling would be at issue … . Additionally, as plaintiff had already retained an expert, there was nothing preventing plaintiff from submitting additional evidence in reply to [defendant’s] affirmations in opposition, prior to the court’s original determination … .Therefore, Supreme Court improperly granted plaintiff’s motion to renew, and plaintiff’s supplemental expert affidavit should not be considered on summary judgment … . Burgos v Darden Rests., Inc., 2025 NY Slip Op 00009, Third Dept 1-2-25

Practice Point:  A motion to renew a summary judgment motion must be based upon new facts which could not have been addressed in the initial motion, not the case here.

,

PLAINTIFF WAS REPAIRING THE FLASHING ON THE ROOF, NOT DOING ROUTINE MAINTENANCE, AT THE TIME HE WAS INJURED ENTITLING HIM TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff was performing repairs, not routine maintenance, when he was injured, entitling him to summary judgment on the Labor Law 240(1) cause of action:

“Delineating between routine maintenance and repairs is frequently a close, fact-driven issue . . . , and that distinction depends upon whether the item being worked on was inoperable or malfunctioning prior to the commencement of the work . . . , and whether the work involved the replacement of components damaged by normal wear and tear” … . Here, the testimony submitted by plaintiffs established, and the court found, that the rubber flashing was malfunctioning and inoperable prior to replacement and that the work being performed by plaintiff at the time of the accident was necessary to restore the proper functioning of the roof. To the extent that defendant asserts that the flashing plaintiff was repairing at the time of his fall was not actively leaking, such a contention is immaterial to whether plaintiff was performing a protected activity, inasmuch as it would be “[in]consistent with the spirit of the [Labor Law] to isolate the moment of injury and ignore the general context of the work” … .

Further, contrary to the court’s determination, we agree with plaintiffs that the rubber flashing was not merely a “component” of a ventilation system and instead was an integral part of a proper functioning roof. Here, plaintiff was performing roofing repair to ensure that the roof of the concession stand was no longer leaking—precisely the type of work that we have long held to be protected by Labor Law § 240 (1) … . Verhoef v Dean, 2024 NY Slip Op 06465, Fourth Dept 12-20-24

Practice Point: Here plaintiff was repairing the roof when he was injured. He was not performing routine maintenance. He was therefore entitled to summary judgment on the Labor Law 240(1) cause of action.

 

PLAINTIFF WAS STRUCK BY A LADDER WHICH FELL BECAUSE IT WAS PLACED ON A SLIPPERY MAT; PLAINTFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION; DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT ON THE LABOR LAW 241(6) AND 200 CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant’s motions for summary judgment on the Labor Law 240(1), 241(6) and 200 causes of action should not have been granted. In addition, plaintiff was entitled to summary judgment on the Labor law 240(1) cause of action. Plaintiff was working at ground level. A coworker placed a ladder on a mat which was covered with cow manure and started climbing the ladder. The ladder slipped on the mat and fell, hitting plaintiff on the head:

​The failure to properly place and secure the ladder amounted to a violation of Labor Law § 240(1) … . Moreover, the violation of Labor Law § 240(1) proximately caused the plaintiff’s injuries because the plaintiff was injured when the ladder “proved inadequate to shield [him] from harm directly flowing from the application of the force of gravity to an object or person” … . …

… [T]he coworker’s improper placement of the ladder was not of such an extraordinary nature or so attenuated from a violation of Labor Law § 240(1) as to sever the causal nexus between the defendant’s statutory violation and the plaintiff’s injuries … . …

“In order to prevail on a Labor Law § 241(6) cause of action premised upon a violation of 12 NYCRR 23-1.8(c)(1), the plaintiff must establish that the job was a hard hat job, and that the plaintiff’s failure to wear a hard hat was a proximate cause of his [or her] injury” … . Here, the defendant failed to establish, prima facie, that the relevant work was not a hard hat job or that the plaintiff’s lack of head protection played no role in the injuries he sustained when he was struck in the head by the ladder … .

12 NYCRR 23-1.21(b)(4)(ii) provides that “[a]ll ladder footings shall be firm. Slippery surfaces and insecure objects such as bricks and boxes shall not be used as ladder footings.” Here, the defendant failed to establish, prima facie, that the rubber mat covered with cow manure and hay was not a slippery surface for the purpose of 12 NYCRR 23-1.21(b)(4)(ii). …

“Labor Law § 200 is a codification of the common-law duty of an owner or employer to provide employees with a safe place to work” … . … When a claim is based on an alleged dangerous condition of a work site, the defendant may be liable where he or she had actual or constructive notice of the condition or created the condition … . A defendant has constructive notice of a defect when it is visible and apparent and has existed for a sufficient length of time before the accident such that it could have been discovered and corrected … . Here, the defendant’s conclusory statements in his affidavit that he did not recall having entered the barn on the day of the accident and that he was unaware of the plaintiff’s accident were insufficient to establish, prima facie, that he did not have actual or constructive notice of the alleged slippery condition … . Wright v Pennings, 2024 NY Slip Op 06233, Second Dept 12-11-24

Practice Point: A coworker placed a ladder on a slippery mat and the ladder fell and struck plaintiff when the coworker started to climb it. Plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. The coworker’s actions did not sever the causal connection between the statutory violation (an unsecured ladder) and plaintiff’s injuries.

 

THE FOLD-DOWN LADDER WHICH WAS PERMANENTLY ATTACHED TO THE CEILING WAS THE FUNCTIONAL EQUIVALENT OF A LADDER FOR GAINING ACCESS TO THE ATTIC; PLAINTIFF FELL WHEN THE LADDER DETACHED FROM THE CEILING; PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor :Law 240(1) and 241(6) causes of action. Plaintiff needed to access the attic using a fold-down ladder which was permanently attached to the ceiling. The ladder came loose from the ceiling and plaintiff fell to the floor:

​… [T]he plaintiff described the ladder as “a type of stairs that are up on the attic and you pull them” with a rope, and the stairs would unfold and extend to the floor to allow someone to climb up them. The plaintiff acknowledged that the pull-down attic stairs were permanently affixed to the ceiling, but he also testified that climbing the pull-down attic stairs was the only way to access the attic, which he was required to access to connect certain cables to a security camera. * * *

… [T]he pull-down attic stairs, in effect, operated as a safety device within the meaning of Labor Law § 240(1) … , since the pull-down attic stairs served as the functional equivalent of a ladder at the time of the accident … . The plaintiff’s testimony that the pull-down attic stairs detached from the ceiling and fell as he was ascending them, causing him to fall, demonstrated, prima facie, that the defendants violated Labor Law § 240(1) and that this violation proximately caused the plaintiff’s injuries … . …

To establish liability under Labor Law § 241(6), a plaintiff must demonstrate that his or her injuries were proximately caused by a violation of an Industrial Code provision mandating compliance with concrete specifications …  Pursuant to 12 NYCRR 23-1.21(b)(1), “[e]very ladder shall be capable of sustaining without breakage, dislodgment or loosening of any component at least four times the maximum load intended to be placed thereon.” Here, given the plaintiff’s testimony that the pull-down attic stairs fell as he was ascending them, the plaintiff established, prima facie, that the defendants violated 12 NYCRR 23-1.21(b)(1) … . Jaimes-Gutierrez v 37 Raywood Dr., LLC, 2024 NY Slip Op 06187, Second Dept 12-11-24

Practice Point: Although the fold-down stairs to the attic were permanently attached to the ceiling, it it was the functional equivalent of a ladder and served as a safety device within the meaning of Labor Law 240(1) and 241(6).

 

, ,

THE PEBBLES ON WHICH PLAINTIFF SLIPPED MET THE CRITERIA FOR A “FOREIGN SUBSTANCE” AND A “SLIPPERY CONDITION” WITHIN THE MEANING OF THE INDUSTRIAL CODE; THE LABOR LAW 241(6) CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED; THE MECHANICS OF THE 30-DAY COURT-OF-APPEALS “APPEAL CLOCK” EXPLAINED IN THE CONTEXT OF ELECTRONIC FILING (CT APP).

The Court of Appeals, reversing the Appellate Division’s dismissal of the Labor Law 241(6) causes of action, determined the loose pebbles on which plaintiff slipped were not “inherent in the work” and, therefore, the Industrial Code provisions prohibiting “foreign substances” and “slippery conditions” applied.  In addition, the Court of Appeals held one party’s appeal to the Court was untimely and explained how the 30-day appeal clock works with electronic filing:

* * * To be effective to start CPLR 5513 (b)’s 30-day clock, service must comply with CPLR 2103. CPLR 2103 (b) (7), in turn, empowers the Chief Administrative Judge to authorize electronic service. * * * … [I]n an electronic filing case, service via filing on the NYSCEF docket for the trial court is effective to start CPLR 5513 (b)’s 30-day clock. * * *

Plaintiff testified … that, while attempting to install a 500-pound glass panel into a metal channel cut into the floor of the construction site, he slipped on concrete pebbles—that he believed came from the installation of the metal channel—and sustained injuries to his spine. …

… {Defendants] failed to demonstrate that the concrete pebbles that allegedly created the slipping hazard were integral to the work, because they did not conclusively show that the pebbles were “inherent to the task at hand, and not . . . avoidable without obstructing the work or imperiling the worker” … . As to … Industrial Code § 23-1.7 (d), [defendants] did not demonstrate that the concrete pebbles were not a “foreign substance” because, at the time of the alleged injury, the pebbles were “not a component of the [floor] and w[ere] not necessary to the [floor]’s functionality” … . [Defendants] did not demonstrate that the pebbles did not cause a “slippery condition” … . Regarding Industrial Code § 23-1.7 (e) (2), this provision is not limited to “tripping” hazards … . Ruisech v Structure Tone Inc., 2024 NY Slip Op 05866, CtApp 11-25-24

Practice Point: The pebbles on which plaintiff slipped were not integral to the work and met the criteria for a “foreign substance” and “slippery condition” in the Industrial Code.

Practice Point. Consult this decision for an explanation of the mechanics of the 30-day period for taking an appeal to the Court of Appeals in the context of electronic filing.

 

,

PLAINTIFF WAS STRUCK BY A FALLING BEAM WHICH SHOULD HAVE BEEN SECURED; PLAINTIFF WAS NOT OTHERWISE PROTECTED FROM FALLING OBJECTS; 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 struck by a falling beam which should have been secured. The fact that plaintiff did not know where the beam came from did not preclude summary judgment:

Plaintiff’s proof showed that the support beam was a load that required securing for the purposes of the undertaking … .Further, the elevated platform was not guarded by a safety device such as netting or enclosure that would have prevented the beam from falling on plaintiff … .

While plaintiff and his coworker did not actually witness where the beam came from, plaintiff “is not required to show the exact circumstances under which the object fell,” provided he can demonstrate that the lack of a protective device called for under Labor Law § 240(1) proximately caused his injuries …  A plaintiff’s prima facie case is “not dependent on whether he had observed what had hit him, or whether the object in question was dropped or fell in some other manner ” … .  Fromel v W2005/Hines W. Fifty-Third Realty, LLC, 2024 NY Slip Op 05828, First Dept 11-21-24

Practice Point: Being struck by an unsecured falling object, and the failure to provide protection from falling objects, may warrant summary judgment on a Labor law 240(1) cause of action.

 

PLYWOOD DELIBERATELY PLACED AS A TEMPORARY FLOOR DOES NOT CONSTITUTE “DIRT AND DEBRIS” OR “SCATTERED TOOLS AND MATERIALS” OR “SHARP PROTECTIONS” WITHIN THE MEANING OF THE INDUSTRIAL CODE; THEREFORE PLAINTIFF’S STEPPING IN A HOLE IN THE PLYWOOD AND FALLING IS NOT COVERED BY LABOR LAW 241(6) (FIRST DEPT). ​

The First Department determined Supreme Court properly dismissed the Labor Law 241(6) cause of action because the plywood used for temporary flooring, which had a hole in it which caused plaintiff to fall, was not “dirt and debris” or “scattered tools or materials” or “sharp projections” within the meaning of the Industrial Code:

… Industrial Code (12 NYCRR) § 23-1.7 (e) (2), … provides:

“Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed.”

On its face, section 23-1.7(e)(2) does not apply to all potential tripping hazards but only to “accumulations of dirt and debris,” “scattered tools and materials,” and “sharp projections.” As plaintiff admitted in his deposition testimony, the perforated plywood board on which he tripped had been deliberately placed on the stripped floor as a protective measure, in response to plaintiff’s own complaints. Thus, as a matter of law, the plywood board, notwithstanding its hole, could not be described as an “accumulation[] of . . . debris” or as part of a “scatter[ing]” of “tools and materials” … . Accordingly, as a matter of law, the plywood board did not fall within the scope of Industrial Code § 23-1.7(e)(2). Cioppa v ESRT 112 W. 34th St., L.P., 2024 NY Slip Op 05482, First Dept 11-7-24

Practice Point: Plywood placed as a temporary floor does not constitute “dirt and debris” within the meaning of the Industrial Code. Therefore stepping in a hole in the plywood and falling is not covered by Labor Law 241(6).

 

,

A 400-POUND DUCT LIFT TOPPLED OFF AN UNSTEADY RAMP AND STRUCK PLAINTIFF; ALTHOUGH THE LIFT DROPPED ONLY 10 TO 12 INCHES, PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s motion for summary judgment on the Labor Law 240(1) cause of action should have been granted. Plaintiff was struck by a 400 pound duct lift which toppled off an unsteady ramp. The lift fell only 10 to 12 inches, but met the criteria for a gravity-related accident covered by Labor Law 240(1):

… Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1), as the defendants failed to satisfy their prima facie burden. Although the defendants submitted evidence establishing that the alleged elevation differential measured only 10 to 12 inches, given the heavy weight of the duct lift and the amount of force it was capable of generating, the elevation differential was not de minimis … . The plaintiff submitted evidence to show that he suffered harm that flowed directly from the application of the force of gravity to the duct lift … .

Moreover, the Supreme Court should have granted that branch of the plaintiff’s cross-motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1). The plaintiff submitted, inter alia, a transcript of his deposition testimony, which established, prima facie, that the defendants violated Labor Law § 240(1) by failing to provide an appropriate safety device, namely a secured ramp, to protect against the elevation-related hazard that was posed by maneuvering the heavy duct lift over the ramp … . Davila v City of New York, 2024 NY Slip Op 05433, Second Dept 11-6-24

Practice Point: A heavy object falling 10 to 12 inches from an unsteady ramp, striking plaintiff, is covered by Labor Law 240(1). The incident was caused by defendants’ failure to provided an adequately secured ramp.

 

,

PLAINTIFF WAS NOT PROVIDED WITH A SECURED A-FRAME LADDER AND WAS NOT PROVIDED WITH ANYTHING TO SECURE THE PIPE HE WAS ATTEMPTING TO REMOVE WHEN IT FELL AND STRUCK THE LADDER; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION; THE “RECALCITRANT WORKER” AND “FAILURE TO FOLLOW SAFETY INSTRUCTIONS” ALLEGATIONS DID NOT RAISE A QUESTION OF FACT (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 standing on an unsecured A-frame ladder when a piece of pipe he was attempting remove fell and struck the ladder. The unsecured ladder was not an adequate safety device and no safety device was provided to secure the pipe. Allegations the plaintiff was a recalcitrant worker and was the proximate cause of the accident did not raise a question of fact:​

Defendants are liable for these injuries because plaintiff was not provided any safety devices except an unsecured ladder … .

Plaintiff was also not provided any safety devices to secure the pipe while it was being removed … . The use of a safety device to secure the pipe would not have impeded the work in progress … . Even if plaintiff’s coworkers were supposed to hold the pipe as he cut it, “people are not safety devices within the meaning of Labor Law § 240(1)” … .

… While defendants contend that plaintiff’s foreman gave him safety instructions concerning how to cut the pipe and where to place the ladder so that it would not be hit by a falling pipe, plaintiff was not recalcitrant because he was not provided with an adequate safety device to secure the pipe “in the first instance” … .

There is also no issue of fact as to whether plaintiff was the sole proximate cause of the accident because, even if the length of the pipe that plaintiff cut was too long, he was not provided with an adequate safety device to secure the pipe … . Furthermore, even if plaintiff disregarded an instruction not to place the ladder where the pipe could hit it, that was not the sole proximate cause of the accident as “an instruction to avoid an unsafe practice is not a sufficient substitute for providing a worker with a safety device to allow him to complete his work safely” … . Jara-Salazar v 250 Park, L.L.C., 2024 NY Slip Op 05407, First Dept 10-31-24

Practice Point: If an accident is the result of the failure to provide plaintiff with adequate safety equipment, the allegation plaintiff failed to follow safety instructions will not raise a question of fact.​

Practice Point: Here the failure to provide safety devices to secure a pipe which was being removed from the ceiling when it fell was a ground for defendants’ liability.

 

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