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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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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.

 

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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.

 

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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.

 

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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.

 

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ALTHOUGH A CONSTRUCTION MANAGER IS GENERALLY NOT LIABLE FOR INJURIES TO A WORKER UNDER LABOR LAW 240(1) OR 241(6), HERE THE CONSTRUCTION MANAGER, BY CONTRACT, WAS RESPONSIBLE FOR SAFETY AT THE WORKSITE AND SUPERVISED THE WORK; THEREFORE THE CONSTRUCTION MANAGER WAS A STATUTORY AGENT OF THE PROPERTY OWNER AND POTENTIALLY LIABLE UNDER LABOR LAW 240(1) (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the construction manager, Tishman, was the property owner’s statutory agent in charge of safety at the worksite. Therefore Tishman could be liable for injury to a worker pursuant to Labor Law 240(1):

“A construction manager of a work site is generally not responsible for injuries under Labor Law . . . [§ ] 240(1) . . . or § 241(6) unless it functions as an agent of the property owner or general contractor in circumstances where it has the ability to control the activity which brought about the injury” … . “The label given a defendant, whether ‘construction manager’ or ‘general contractor,’ is not determinative” … . “Instead, the core inquiry is whether the defendant had the ‘authority to supervise or control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition'” … .

Here, in support of his motion for summary judgment, the plaintiff submitted the construction management services contract, which charged Tishman with, inter alia, enforcing subcontractors’ compliance with safety requirements and taking precautions to minimize the risk of injuries. The contract further gave Tishman the right to choose the means and methods of construction. Although Tishman did not directly supervise or control the plaintiff’s work, Tishman’s safety manager for the project testified at his deposition that he was “in charge of safety at . . . [the] project full-time.” In addition, a foreperson for another trade testified at his deposition that Tishman would correct other workers who were performing their work in an unsafe manner. Under these circumstances, Tishman was a statutory agent of DDC and was, therefore, potentially liable for the plaintiff’s alleged injuries under Labor Law § 240(1) … . Weekes v Tishman Tech. Corp., 2025 NY Slip Op 02959, Second Dept 5-14-25

Practice Point: Although a construction manager is generally not liable to an injured worker under Labor Law 240(1) or 241(6), here the construction manager was, by contract, a statutory agent of the property owner responsible for the supervision of the work and the safety of the workers. Statutory agents of the property owner or general contractor are potentially liable to injured workers under Labor Law 240(1) and 241(6).

 

PLAINTIFF WAS INJURED WHEN UNSECURED FENCE PANELS FELL ON HIM; HIS INJURIES ARE COVERED UNDER LABOR LAW 240(1) (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff’s injuries from fencing panels which fell over on him were covered by Labor Law 240(1):

Plaintiff was performing asbestos removal work on the roof of a residential building in NYCHA’s Mariners Harbor complex on Staten Island when the wind knocked over three unsecured panels of galvanized steel fencing onto plaintiff, causing his injuries. Each panel measured 8 feet in height and 8 to 10 feet in length. Together the panels had a combined weight of approximately 150 to 225 pounds.

… The fence had been partially dismantled and temporarily moved and stored in the area where plaintiff was working. Because of the reasonable possibility that they might topple onto the workspace, the panels required securing for the purposes of the undertaking … .

… [P]laintiff’s evidence demonstrated that the gravitational force generated by the wind-toppled steel fence panels was significant and a proximate cause of his injuries … . Plaintiff’s work involving asbestos removal fell within the protections of Labor Law § 240(1), as such work was part of a larger project to renovate multiple building rooftops at the Mariners Harbor complex … . Brito v City of New York, 2025 NY Slip Op 02869, First Dept 5-13-25

Practice Point: Here unsecured fence panels toppled onto plaintiff in the workplace. The injuries were due to gravitational force and therefore covered by Labor Law 240(1).

 

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PLAINTIFF’S OWN DEPOSITION TESTIMONY THAT HE CLEANED THE AREA WHERE HE STEPPED ON A NAIL PROVED DEFENDANT DID NOT NOT HAVE CONSTRUCTIVE NOTICE OF THE PRESENCE OF THE NAIL; THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined defendant demonstrated it did not have constructive notice of the nail plaintiff stepped on requiring dismissal of the Labor Law 200 and common-law negligence causes of action. The twist here is plaintiff’s own deposition testimony that he had cleaned the area proved defendant’s lack of constructive notice:

Plaintiff expressly based his Labor Law § 200 and common-law negligence claims on a theory that he was injured when he stepped on a nail and that his injuries therefore arose from the condition of the workplace. Thus, defendant was required to establish prima facie that it neither caused or created the dangerous condition nor had actual or constructive notice of it … . Defendant sustained that burden by submitting plaintiff’s deposition testimony that he had swept the area before his lunch break, that everything was where he had left it and the floor was still clean when he returned from his lunch break, and that he never noticed the nail before the accident, which occurred after plaintiff’s lunch break … . Zyskowski v Chelsea-Warren Corp., 2025 NY Slip Op 02860, First Dept 5-8-25

Practice Point: Proof the area where plaintiff stepped on a nail was cleaned and inspected shortly before the injury demonstrated defendant did not have constructive notice of the presence of the nail, requiring dismissal of the Labor Law 200 and common-law negligence causes of action. The facts here are unusual in that it was plaintiff’s own testimony that he cleaned and inspected the area shortly before he stepped on the nail and did not notice the nail which proved defendant lacked constructive notice.

 

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