You are here: / Labor Law-Construction Law

Plaintiff Entitled to Summary Judgment on Labor Law 240 (1) Cause of Action—Plaintiff Was Standing on an A-Frame Ladder When It Swayed and Tipped Over

The Second Department determined plaintiff, Casasola, was entitled to summary judgment on his Labor Law 240 (1) cause of action.  Plaintiff was standing on an unsecured A-frame ladder when it swayed and tipped over. The incident occurred when Casasola was working on property owned by the State of New York. The court noted that, to be liable, the property owner need not have exercised any control over the work.  All the plaintiff must show is the violation of a statute proximately caused his injury:

Labor Law § 240(1) provides that “[a]ll contractors and owners and their agents . . . shall furnish or erect, or cause to be furnished or erected . . . scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to [construction workers employed on the premises]” … . The purpose of this statute, commonly referred to as the “scaffold law,” is to protect workers “by placing ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor, instead of on workers, who are scarcely in a position to protect themselves from accident” … . Casasola v State of New York, 2015 NY Slip Op 04798, 2nd Dept 6-10-15

 

Plaintiff Who Fell From Scaffolding Which Did Not Have Safety Rails Entitled to Summary Judgment on His Labor Law 240(1) Cause of Action

he Second Department determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action based upon his fall from scaffolding which did not have safety rails. The relevant law was succinctly explained:

Labor Law § 240(1) imposes a nondelegable duty upon owners, lessees that control the work performed, and general contractors to provide safety devices necessary to protect workers from risks inherent in elevated work sites … . “To recover on a cause of action pursuant to Labor Law § 240(1), a plaintiff must demonstrate that there was a violation of the statute, and that the violation was a proximate cause of the accident” … . Here, the plaintiff established his prima facie entitlement to judgment as a matter of law by demonstrating that he was injured when he fell from a scaffold which lacked safety rails on the sides and that he was not provided with a safety device to prevent him from falling … . Vasquez-Roldan v Two Little Red Hens, Ltd., 2015 NY Slip Op 04842, 2nd Dept 6-10-15

 

,

Injury While Lowering a Heavy Tank Entitled Plaintiff to Summary Judgment on His Labor Law 240 (1) Claim—Party’s Cross Motion Should Not Have Been Denied for Failure to Attach Pleadings—the Pleadings Had Been Provided to the Court by Other Parties

The First Department determined plaintiff was properly awarded summary judgment on his Labor Law 240 (1) claim.  A rope attached to a heavy tank being lowered down some stairs by plaintiff severed one finger and a portion of another (“grave injury”). The court found that the incident was gravity-related, plaintiff was not provided with adequate safety devices, and plaintiff’s actions were not the sole proximate cause of his injury. The court noted that another party’s cross-motion for summary judgment should not have been denied on the ground the pleadings were not attached to the motion papers.  The pleadings had been provided to the court by other parties. Serowik v Leardon Boiler Works Inc., 2015 NY Slip Op 04773, 1st Dept 6-9-15

 

Injury Caused by an Unsecured Scaffolding Component Which Fell Approximately Two-Feet, Striking Plaintiff, Was Not the Type of Elevation-Related Risk Which Is Covered by Labor Law 240 (1)

Plaintiff was injured when a component of scaffolding fell about two-feet and struck him.  The Third Department determined the incident was not the result of a circumstance covered by Labor Law 240 (1) (the absence of statutorily-required safety equipment), even though the incident was “gravity-related.”  However, the Labor Law 246 (1) cause of action, alleging a violation of a provision of the Industrial Code, and the Labor Law 200 cause of action against the general contractor which supervised and controlled the work, should not have been dismissed. With respect ot the Labor Law 240 (1) cause of action, the court explained:

Labor Law § 240 (1) “imposes absolute liability on building owners and contractors whose failure to ‘provide proper protection to workers employed on a construction site’ proximately causes injury to a worker” … . The statute is intended to provide “extraordinary protections [applicable] only to a narrow class of dangers. More specifically, [the statute] relates only to special hazards presenting elevation-related risks” … . Accordingly, “section 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'” … . Where, as here, an injury is caused by a falling object, liability “depends on whether the injured worker’s task creates an elevation-related risk of the kind that the safety devices listed in section 240 (1) protect against” … . An elevation-related risk arises only where there is a “physically significant elevation differential” … . In order to determine whether a height differential is physically significant, we must consider “the weight of the object and the amount of force it was capable of generating, even over the course of a relatively short descent” … . Without a significant elevation differential, Labor Law § 240 (1) does not apply, even if the injury is caused by the application of gravity on an object … .

Here, “tak[ing] into account the practical differences between the usual and ordinary dangers of a construction site, and . . . the extraordinary elevation risks envisioned by [the statute],” as we must …, we find that plaintiff’s injury, caused by the tipping frame or scaffold component (see 12 NYCRR 23-1.4), did not fall within the scope of Labor Law § 240 (1). Our conclusion remains even if we accept it to be true that the frame was part of a scaffold that was in the process of being assembled or dismantled … . The record indicates that, at most, the crossbar of the frame, which was upright but not connected to any other component or supporting any planking, was two feet above plaintiff’s head. In our view, the facts do not present a physically significant height differential and, while plaintiff was exposed to a general workplace hazard, he was not exposed to an elevation-related risk within the ambit of Labor Law § 240 (1) … . As such, this cause of action should be dismissed. Christiansen v Bonacio Constr., Inc., 2015 NY Slip Op 04700, 3rd Dept 6-4-15

 

A Three-and-a-Half-Foot Fall from a Railing to a Raised Platform Was Covered by Labor Law 240(1)–Elements of Labor Law 240(1), 200 and 246(1) Causes of Action Explained—Failure to State (in the Pleadings) the Particular Industrial Code Provision Alleged to Have Been Violated Was Not Fatal to the Labor Law 246(1) Cause of Action—Belated Identification of the Code Provision Did Not Prejudice Defendant

The Second Department determined plaintiff’s Labor Law 240(1) cause of action should not have been dismissed.  Plaintiff climbed up scaffolding to access a platform and, as he attempted to climb over the three-and-a-half-foot platform railing, plaintiff fell to the platform and was injured.  Plaintiff was not instructed to access the platform any other way, so plaintiff’s failure to use a ladder located 25 to 30 feet away could not be considered the sole proximate cause of the accident.  In addition, the Second Department noted that the Labor Law 241(6) cause of action should not have been dismissed.  Plaintiff’s failure to state the particular provision of the Industrial Code alleged to have been violated in the complaint or bill of particulars was not fatal to the cause of action.  The belated identification of the relevant code provision involved no new factual allegations and no new theories of liability.  The Second Department also held the Labor Law 200 cause of action should not have been dismissed, explaining the elements.  With respect to the Labor Law 240(1) cause of action, the court wrote:

Labor Law § 240(1) imposes absolute liability on owners, contractors, and their agents when their “failure to provide proper protection to workers employed on a construction site proximately causes injury to a worker” … . However, liability may “be imposed under the statute only where the plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential'” … .

Contrary to the contention of the defendants and Newtron, Labor Law § 240(1) applies to the facts of this case, even though the plaintiff fell only from the railing to the platform … . The plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability on his cause of action alleging a violation of Labor Law § 240(1) by submitting evidence demonstrating that the defendants failed to provide him with an adequate safety device, and that such failure was a proximate cause of his injuries … .

In opposition, the defendants failed to raise a triable issue of fact as to whether the plaintiff’s actions in using the scaffolding and climbing over the railing, rather than using a permanent ladder that was approximately 25 to 30 feet from the scaffolding ladder, to access the permanent platform was the sole proximate cause of his injuries. A plaintiff’s negligence is the sole proximate cause of his or her injuries “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, and plaintiff knew he [or she] was expected to use them but for no good reason chose not to do so, causing an accident” … . Here, there is no evidence that anyone instructed the plaintiff that he was “expected to” use the permanent ladder rather than the scaffolding … . Doto v Astoria Energy II, LLC, 2015 NY Slip Op 04605, 2nd Dept 6-3-15

 

Injury During Tree-Removal Not Covered by Labor Law Even though the Tree-Removal Was a Prerequisite to the Removal of a Fence—Work on the Fence Had Not Begun at the Time of the Injury

Plaintiff was injured during the cutting and removal of trees along a property line which included a fence.  Although the fence was to be removed, the fence-removal project had not been started at the time of the accident. A fence is a “structure” within the meaning of the Labor Law, so injury while removing a fence would be covered. But because tree-related work is not covered by the Labor Law, and because the fence removal was not underway at the time of the injury, defendants’ motion for summary judgment was properly granted:

Labor Law § 240 (1) affords protection to workers engaged in the “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.” Under settled case law, a tree does not qualify as a building or structure …, and — generally speaking — neither tree removal … constitutes one of the enumerated statutory activities. Although plaintiff correctly notes that a fence qualifies as a structure within the meaning of Labor Law § 240 (1) … and, further, that the statutory protections extend to duties that are ancillary to the enumerated activities set forth therein …, the fact remains that Labor Law § 240 (1) “afford[s] no protection to a plaintiff [who is] injured before any activity listed in the statute [is] under way” … . Cicchetti v Tower Windsor Terrace, LLC, 2015 NY Slip Op 04375, 3rd Dept 5-21-15

 

To Be Entitled to Summary Judgment on a Labor Law 200 Cause of Action, the Defendant Must Demonstrate the Defendant (1) Did Not Control the Plaintiff’s Work and (2) Did Not Create or Have Constructive Knowledge of the Dangerous Condition

The Second Department determined summary judgment should not have been granted to defendant homeowners in this Labor Law 200 action. It was alleged the homeowners created a dangerous condition by placing an unsecured tarp in the area where plaintiff placed his ladder. Plaintiff was injured when he fell from the ladder.  The Second Department explained that the defendants, to be entitled to summary judgment, were required to demonstrate (1) they did not “have authority to supervise or control the methods or materials of the injured plaintiff’s work” and (2) they did not create the dangerous condition that caused the accident or have actual or constructive notice of the dangerous condition. Here the defendants failed to demonstrate they did not create the dangerous condition:

Where a plaintiff’s injures are alleged to have been caused by defects in both the premises and the equipment used at the work site, a defendant moving for summary judgment with respect to causes of action alleging a violation of Labor Law § 200 is obligated to address the proof applicable to both of the foregoing liability standards … . A defendant moving for summary judgment in such a case may prevail “only when the evidence exonerates it as a matter of law for all potential concurrent causes of the plaintiff’s accident and injury, and when no triable issue of fact is raised in opposition as to either relevant liability standard” … . Pacheco v Smith, 2015 NY Slip Op 04293, 2nd Dept 5-20-15

 

Inability to Remember Fall and Absence of Witnesses Did Not Preclude Summary Judgment on Labor Law 240(1) Cause of Action

The First Department determined the plaintiff’s inability to remember his fall from a scaffold and the absence of witnesses did not preclude summary judgment in his favor for the Labor Law 240(1) cause of action:

Plaintiff established his entitlement to judgment as a matter of law on the issue of liability in this action where he sustained injuries when, while performing asbestos removal work in a building owned by defendant, he fell from a baker’s scaffold. Plaintiff’s testimony that he was standing on the scaffold working, and then woke up on the ground with the scaffold tipped over near him, established a prima facie violation of the statute and that such violation proximately caused his injuries … . That plaintiff could not remember how he fell does not bar summary judgment … . Nor does the fact that he was the only witness raise an issue as to his credibility where, as here, his proof was not inconsistent or contradictory as to how the accident occurred, or with any other evidence … . Strojek v 33 E. 70th St. Corp., 2015 NY Slip Op 04203, 1st Dept 5-14-15

 

Violation of an Industrial Code Provision Does Not Conclusively Establish Negligence in a Labor Law 241 (6) Action

The Fourth Department noted that the fact that an Industrial Code provision was violated does not establish negligence sufficient to support partial summary judgment: “Despite our conclusion that defendants violated 12 NYCRR 23-9.5 (c), we reject plaintiff’s contention that he is entitled to partial summary judgment on the issue of defendants’ liability with respect to the Labor Law § 241 (6) claim. A violation of an Industrial Code provision ‘does not establish negligence as a matter of law but is merely some evidence to be considered on the question of a defendant’s negligence’…”.   Whether there was a violation of 12 NYCRR 23-9.5 (c) turned on whether plaintiff was a member of an “excavation crew.” If he was not, then his proximity to the equipment which injured him violated the provision. If he was a member of an “excavation crew,” the provision was not violated.  The majority determined plaintiff was not a member of a “crew” because he was the only person there.  The two dissenting judges disagreed and argued plaintiff was a member of an “excavation crew” within the meaning of the provision. Vanderwall v 1255 Portland Ave. LLC, 2015 NY Slip Op 03959, 4th Dept 5-8-15

 

Plaintiff, Who Fell Through an Open Manhole, Entitled to Summary Judgment on Labor Law 240 (1) Cause of Action—Failure to Set Up Guard Rails Was a Proximate Cause–Liability Imposed Regardless of Plaintiff’s Own Negligence and Regardless of Whether the Owner, Contractor or Agent Supervised or Controlled the Work

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a two-judge dissent, determined plaintiff, who fell through an uncovered manhole, was entitled to partial summary judgment on his Labor Law 240 (1) claim based on testimony the manhole should have been surrounded by guard rails. The court also determined there was a question of fact whether the safety consultant, IMS, was liable as a “statutory agent” under Labor Law 240 (1). The court explained that the obligation to provide safety devices is a nondelegable duty which imposes liability regardless of whether owner, contractor or agent supervises or controls the work. Where 240 (1) is violated, the plaintiff's negligence is not a defense, unless plaintiff's negligence is the sole proximate cause of the injury:

Section 240 (1) provides, in relevant part:

“All contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor [certain enumerated] [*4]and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.”

The statute imposes upon owners, contractors and their agents a nondelegable duty that renders them liable regardless of whether they supervise or control the work … . “Where an accident is caused by a violation of the statute, the plaintiff's own negligence will not furnish a defense”; however, “where a plaintiff's own actions are the sole proximate cause of the accident, there can be no liability” … . Thus, in order to recover under section 240 (1), the plaintiff must establish that the statute was violated and that such violation was a proximate cause of his injury … . Barreto v Metropolitan Tr. Auth., 2015 NY Slip Op 03875, CtApp 5-7-15

 

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