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PLAINTIFF FELL 15 TO 20 FEET SUFFERING A FRACTURED RIB AND A FRACTURED FEMUR WHICH REQUIRED AN OPEN REDUCTION AND INTERNAL FIXATION SURGERY; THE VERDICT AWARDING $1.5 MILLION FOR PAST PAIN AND SUFFERING, $2.5 MILLION FOR FUTURE PAIN AND SUFFERING, AND $800,000 FOR FUTURE MEDICAL EXPENSES SHOULD NOT HAVE BEEN SET ASIDE AS EXCESSIVE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to set aside the jury verdict as excessive should not have been granted:

The plaintiff was injured when, while standing on a beam performing demolition work, a heating, ventilation, and air conditioning duct fell and struck him, causing him to fall approximately 15 to 20 feet to the floor. As a result of the accident, the plaintiff suffered, inter alia, a fractured rib and a fractured femur that required open reduction internal fixation surgery. A metal rod and screws were inserted into the plaintiff’s left leg. The plaintiff later underwent a surgical procedure to remove one of the screws. Furthermore, as a result of the accident, the plaintiff developed problems with both of his knees and his spine, requiring arthroscopic surgery on each knee and a laminotomy. The plaintiff walks with a limp, has limited motion of the hip and knees, and has developed arthritis that will worsen over time. Since the accident, the plaintiff has experienced constant pain despite having been administered numerous injections, including trigger-point injections and transforaminal injections, and having been prescribed several medications, including opioids. Further, the evidence demonstrated that the plaintiff will continue to experience pain and will require future medical treatment, including pain management and, likely, a spinal fusion.

The jury awarded the plaintiff damages in the principal sums of $1,500,000 for past pain and suffering, $2,500,000 for future pain and suffering over a period of 35 years, and $800,000 for future medical expenses over a period of 35 years. Thereafter, the defendants third-party plaintiffs and the third-party defendant separately moved, among other things, pursuant to CPLR 4404(a) to set aside, as excessive, the jury verdict on the issue of damages for past pain and suffering, future pain and suffering, and future medical expenses. In an order dated June 8, 2020, the Supreme Court granted those branches of the separate motions to the extent of directing a new trial on those categories of damages, unless the plaintiff stipulated to reduce the damages awards to the principal sums of $800,000 for past pain and suffering, $1,000,000 for future pain and suffering, and $400,000 for future medical expenses. …

* * * … [C]onsidering the nature and extent of the injuries sustained by the plaintiff, the damages awards for past pain and suffering, future pain and suffering, and future medical expenses, as awarded by the jury, were appropriate and did not deviate materially from what would be reasonable compensation … . Aguilar v Graham Terrace, LLC, 2025 NY Slip Op 02564, Second Dept 4-30-25

Practice Point: A jury’s damages award for past and future pain and suffering and future medical expenses should not be set aside unless the award is demonstrated to “deviate materially from what would be considered reasonable compensation,” not the case here.

 

THE INDUSTRIAL CODE PROVISIONS RELIED UPON BY PLAINTIFF DO NOT APPLY TO A SLIPPERY SUBSTANCE ON A LADDER, REQUIRING THE DISMISSAL OF A LABOR LAW 241(6) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined certain provisions of the Industrial Code did not apply to a slippery substance on a ladder, requiring the dismissal of a Labor Law 241(6) cause of action:

The court should have dismissed the Labor Law § 241 (6) claim … on the basis that the Industrial Code provisions on which plaintiffs rely are inapplicable or abandoned. Industrial Code (12 NYCRR) § 23-1.7 (d) does not apply to this case because the ladder from which plaintiff fell “was not ‘a floor, passageway, walkway, scaffold, platform or other elevated working surface'” … . 12 NYCRR 23-1.7 (e) (1) and (2) do not apply because there is no evidence that Thomas “tripped over any materials, debris or equipment” … . 12 NYCRR 23-1.21 (b) (3) (iv) is limited to structural defects in ladders … and does not apply to the slippery substance on the ladder in this case … . D’Angelo v Legacy Yards Tenant LLC, 2025 NY Slip Op 02409, First Dept 4-24-25

Practice Point: A ladder is not a “floor, passageway, walkway, scaffold, platform or other elevated working surface” within the meaning of the Industrial Code section 12 NYCRR) § 23-1.7 (d).

Practice Point: Industrial Code sections12 NYCRR 23-1.7 (e) (1) and (2) address tripping over “materials, debris or equipment” and does not apply to a slippery substance on a ladder.

Practice Point: Industrial Code section 12 NYCRR 23-1.21 (b) (3) (iv) applies to structural defects in ladders and does not apply to a slippery substance on a ladder.

 

THE FAILURE TO PROVIDE PLAINTIFF WITH EYE-PROTECTION EQUIPMENT WARRANTED SUMMARY JUDGMENT ON THE LABOR LAW 241(6) CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on the Labor Law 241(6) cause of action should have been granted. Plaintiff suffered an injury to his eye when a discharge hose disconnected from a sandblaster. Plaintiff alleged the violation of two Industrial Code provisions requiring that he be provided with protective equipment:

The plaintiff alleged … violations of (1) 12 NYCRR 23-1.5(c)(3), which provides that “[a]ll safety devices, safeguards and equipment in use shall be kept sound and operable, and shall be immediately repaired or restored or immediately removed from the job site if damaged,” and (2) 12 NYCRR 23-1.8(a), which provides that “[a]pproved eye protection equipment suitable for the hazard involved shall be provided for and shall be used by all persons . . . while engaged in any . . . operation which may endanger the eyes.” * * *

“Labor Law § 241(6) imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers” … .. “‘To establish liability under Labor Law § 241(6), a plaintiff must demonstrate that the injuries allegedly sustained were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the case'” … ,. “An owner or contractor may be held liable under Labor Law § 241(6) even if it did not have control of the site or notice of the allegedly dangerous condition” … .

Here, the plaintiff demonstrated, prima facie, that the defendants violated Labor Law § 241(6) by failing to provide adequate eye protection equipment and to ensure that the plaintiff used safety equipment while working at the job site in accordance with 12 NYCRR 23-1.5(c)(3) and 23-1.8(a), and that those violations were a proximate cause of the accident … . Castellon v 38 E. 85th St., Inc., 2025 NY Slip Op 02311, Second Dept 4-23-25

Practice Point: Owners and contractors have a nondelegable duty to provide their workers with adequate safety equipment and can be held liable even if they did not have control of the work site or notice of the dangerous condition.

 

PLAINTIFF TRIPPED AND FELL AS HE WALKED THROUGH A “ROOM,” NOT A “PASSAGEWAY;” THEREFORE THE LABOR LAW 241(6) CAUSE OF ACTION BASED ON THE INDUSTRIAL CODE PROVISION PROHIBITING OBSTRUCTIONS IN A “PASSAGEWAY” SHOULD HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the Labor Law 241(6) cause of action based on an Industrial Code regulation requiring passageways be kept free of obstructions did not apply to the room where plaintiff tripped and fell:

… [P]laintiff testified that while he was walking through a room, he slipped upon and became tangled in a portion of a plastic tarp that was covering a pool table that extended past the table onto the floor, causing him to fall. * * *

… [D]efendants established, prima facie, that 12 NYCRR 23-1.7(e)(1), which requires owners and general contractors, among other things, to keep all passageways free of obstructions that could cause tripping, is inapplicable, because the site where the plaintiff allegedly fell was not a passageway … . Bittrolff v City of New York, 2025 NY Slip Op 02307, Second Dept 4-23-25

Practice Point: For purposes of Labor Law 241(6) which bases liability on a violation of the Industrial Code, an Industrial Code provision prohibiting obstructions and tripping hazards in a “passageway” does not apply to obstructions and tripping hazards in a “room.”​

 

STANDING ON AN INVERTED BUCKET CONSTITUTED A “PHYSICALLY SIGNIFICANT” HEIGHT-DIFFERENTIAL FOR PURPOSES OF LIABILITY UNDER LABOR LAW 240(1); INJURY WHILE PREVENTING A FALL IS COVERED BY LABOR LAW 240(1) (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined there was a question of fact whether plaintiff’s injury, suffered as he tried to maintain his balance while standing on an inverted bucket, was covered by Labor Law 240(1), despite the fact that plaintiff did not actually fall:

Plaintiff … testified at his deposition that he sustained biceps and shoulder injuries while installing a heavy marble slab on a bathroom wall during a construction project. To install the marble slab, plaintiff and his coworker were required to lift the slab onto two 15-inch-high inverted buckets set up on opposite ends of the slab, then stand on the buckets and attach two suction cups to the slab to lift it to the height of the bathroom ceiling. Plaintiff testified that his injury occurred as he was standing in an awkward position, trying to maintain his balance, because the “buckets were wobbling.” …

… [T]he record presents an issue of fact as to whether plaintiff was injured while trying to avoid falling from the bucket while lifting the marble slab, and whether the injury could have been prevented if defendants had provided an adequate protective device to enable him to accomplish his work at a height … . Because Labor Law § 240(1) applies so long as the “harm directly flowed from the application of the force of gravity to an object or person” … , plaintiff’s claim is not defeated by the fact that he did not actually fall. On the contrary, this Court has consistently held that the statute applies where a worker was injured in the process of “preventing himself from falling” … .

We reject defendants’ argument that the protection of Labor Law § 240(1) is not available because the 15-inch-tall bucket was not a “physically significant” elevation differential. This Court has found that an inverted bucket is an inadequate safety device to raise a worker to the height required to perform the work and presents a risk within the ambit of the statute … . LaGrippo v 95th & Third LLC, 2025 NY Slip Op 02288, First Dept 4-22-25

Practice Point: Standing on an inverted bucket constitutes a physically significant height-differential for purposes of liability under Labor Law 240(1).

Practice Point: Plaintiff’s injury, not from a fall, but rather from his efforts to prevent his falling, can be covered under Labor Law 240(1).

 

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THE ALLEGATION A SCAFFOLD COLLAPSED AND FELL ON PLAINTIFF SUPPORTED SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION; PLAINTIFF NEED NOT DEMONSTRATE THE SCAFFOLD WAS DEFECTIVE; THE FACT THAT PLAINTIFF DID NOT SEE THE SCAFFOLD FALL WAS IRRELEVANT (FIRST DEPT).

The First Department, reversing Supreme Court, determined the allegation that a scaffold collapsed and fell on plaintiff warranted summary judgment on the Labor Law 240(1) cause of action. The plaintiff was not required to show the scaffold was defective and the fact that plaintiff did not see the scaffold fall was not relevant:

Plaintiff was struck by a wooden plank dropped by coworkers while constructing the second level of a 16-foot tall, wheeled scaffold and then was struck by the scaffold when it fell over and landed on top of him. Plaintiff is entitled to summary judgment. The collapse of a scaffold is one of those special hazards contemplated by the statute, and an accident caused by a scaffold collapse is prima facie evidence of a Labor Law § 240(1) violation …  Cabgram’s argument that summary judgment is not warranted because the scaffold was not defective is unpersuasive because plaintiff need not demonstrate that the scaffold was defective to establish his prima facie case … . Nor is it relevant that plaintiff did not see the scaffold tip over, inasmuch as his back was turned when the accident occurred … . Alonso v Cabgram Dev., LLC, 2025 NY Slip Op 02029, First Dept 4-8-25

Practice Point: Injury from a collapsing scaffold warrants summary judgment on a Labor Law 240(1) cause of action without proof the scaffold was defective.

 

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SUPREME COURT HELD A HEARSAY STATEMENT ATTRIBUTED TO PLAINTIFF WAS ADMISSIBLE AS AN EXCITED UTTERANCE AND RAISED A QUESTION OF FACT IN THIS LADDER-FALL CASE; THE FIRST DEPARTMENT RULED THE STATEMENT WAS NOT MADE “UNDER STRESS OF EXCITEMENT” AND WAS THEREFORE INADMISSIBLE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this Labor Law 240(1) ladder-fall case should have been granted. Plaintiff demonstrated a piece of duct, which should have been secured, fell and knocked him off the ladder. The defendant alleged that plaintiff told the foreman he fell because he jumped down several rungs. That hearsay statement was admitted as an excited utterance. The First Department held the statement was not made “under stress of excitement” and should not have been admitted in evidence:

Defendant submitted the affidavit of its foreman, who averred that after the accident, plaintiff told him that he, plaintiff, fell from the ladder because he had jumped down several rungs. Supreme Court admitted this statement under the excited utterance exception to the hearsay rule, finding that it raised a triable issue of fact sufficient to defeat summary judgment. This finding was error. According to the foreman, plaintiff was taking a break and told the foreman that he felt “fine” when he made the statement. Thus, there was no evidence that plaintiff made the purported hearsay statement “under the stress of excitement” … . As defendant did not argue any other valid basis for admitting the hearsay statement, it is “insufficient to defeat summary judgment” … , and there was no other admissible evidence in opposition to plaintiff’s motion. Vivar v Citigroup Tech., Inc., 2025 NY Slip Op 02051, First Dept 4-8-25

Practice Point: Here, whether the defendant raised a question of fact in this ladder-fall case turned on whether plaintiff’s alleged statement that he fell because he “jumped down several rungs” was admissible as an excited utterance. The First Department determined the alleged hearsay statement was not made “under stress of excitement” and was inadmissible. Therefore plaintiff’s motion for summary judgment should have been granted.

 

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IN REINSTATING THE ACTION AFTER VACATING THE ORDER GRANTING SUMMARY JUDGMENT TO DEFENDANTS’, THE SECOND DEPARTMENT EXPLAINED WHAT SHOULD BE ALLEGED IN A COMPLAINT FOR LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s motion to vacate the order granting defendants’ motion for summary judgment in this Labor Law 240(1), 241(6) and 200 action should have been granted. Plaintiff fell through the roof of the building he was working on. Apparently plaintiff failed to answer the summary judgment motion because of law office failure. In reinstating the action, the Second Department noted that the causes of action had been adequately pled as follows:​

“‘Labor Law § 240(1) imposes a nondelegable duty upon owners and general contractors to provide safety devices to protect workers from elevation-related risks'” … . “‘To impose liability pursuant to Labor Law § 240(1), there must be a violation of the statute and that violation must be a proximate cause of the plaintiff’s injuries'” … . Here, the plaintiff alleged that his fall through the roof was the result of an elevation-related hazard caused by the failure to keep necessary safety devices in place and identified the defendants as the owners of the premises. …

“‘Labor Law § 241(6) imposes on owners and contractors a nondelegable duty to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed'” … . “‘To establish liability under Labor Law § 241(6), a plaintiff or a claimant must demonstrate that his [or her] injuries were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the case'” … . Here, the plaintiff alleged that he was employed in an area where construction was being performed and that his injuries were proximately caused by the failure to comply with applicable statutes, ordinances, rules, and regulations. ….

“‘Labor Law § 200 essentially codifies landowners’ and general contractors’ common-law duty to maintain a safe workplace'” … . “‘Where a plaintiff’s claims implicate the means and methods of the work, an owner or contractor will not be held liable under Labor Law § 200 unless it had the authority to supervise or control the performance of the work'” … . Here, the plaintiff alleged that the defendants failed to provide a safe place to work and that the defendants controlled and supervised the work at issue. Bayron Chay Mo v Ultra Dimension Place, LLC, 2025 NY Slip Op 01338, Second Dept 3-12-25

Practice Point: Consult this decision for a clear explanation of what should be alleged in the complaint for Labor Law 240(1), 241(6) and 200 causes of action.

 

PLAINTIFF’S WORK, DELIVERING TILES TO THE WORK SITE, WAS COVERED BY LABOR LAW 240(1) AS “NECESSARY AND INCIDENTAL” TO THE PROTECTED CONSTRUCTION-ACTIVITY (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s work, delivering tiles to the construction site, was covered by Labor Law 240(1). Therefore plaintiff was entitled to summary judgment for injury suffered after stepping in the two-foot-deep hole near the loading ramp:

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 … . Rodriguez v Riverside Ctr. Site 5 Owner LLC, 2025 NY Slip Op 00411, First Dept 1-28-25

Practice Point: Although plaintiff was not involved in installation of the tiles, delivery of the tiles to the work site was a protected activity pursuant to Labor Law 240(1) as “necessary and incidental” to the installation.

 

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PLAINTIFF WAS CROUCHING DOWN MARKING THE FLOOR WITH DUCT TAPE WHEN A LADDER FELL OVER AND STRUCK HIM; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT IN THIS LABOR LAW 240(1) ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defense motion for judgment for summary judgment in this Labor Law 240(1) action should not have been granted and plaintiff’s cross-motion for summary judgment should have been granted. Plaintiff was crouching down marking off areas of the floor with duct tape when an ladder fell over and struck him, causing him to lose consciousness:

The elevation differential involved here cannot be described as de minimis … . The evidence also established that the ladder was not adequately secured for the purposes of the undertaking … .

… [P]laintiff established prima facie entitlement to summary judgment through his deposition testimony that he was struck by a ladder that was not properly secured. … [I]t was foreseeable for a ladder resting against a wall to topple over and strike a nearby worker. Nor could a worker knocking over the ladder be considered an intervening superseding cause in this case … . Silva v 770 Broadway Owner LLC, 2025 NY Slip Op 00299, First Dept 1-21-25

Practice Point: Here plaintiff was marking the floor with duct tape when a ladder which had been leaning against a wall fell over and struck him. It was foreseeable that an unsecured ladder could fall over. If a worker knocked it over, that would be foreseeable as well and would not be a superseding cause.

 

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