O’Gorman Comments on Legal Issues in New York & Other States as to Construction Accidents & Insurance Coverage

April 22. New York. 23-1.4(b)(13) Applies to Ancillary Construction Work. Part of Larger Construction Project.

Ancillary work is work that is part of a larger construction project. It is work within 241(6) protection.

First Dept.

Installing Carpet

First Dept. 2004. Not Dismissed.Installing carpet as part of finishing new house is construction work pursuant to 23-1.4(b)(13). Tornello v. Beaver Brook Assocs, 8 AD3d 7;

Second Dept.

Boarding Up a House

Second Dept. 2022. 23-1.4(b)(13) Applicable. Plaintiff boarded up house to make it uninhabitable constituted physical change  to building. Nucci v. County of Suffolk, 204 AD3d 817;

Powerwashing

Second Dept. 2021. 23-1.4(b)(13) Not Dismissed. Plaintiff injured when solution of powerwasher, which contained corrosive substance, dripped onto his hands. Issue of fact whether powerwashing part of broader construction or demolition project. Llamas v. YU Yu Chen, 195 AD3d 702;  

Repairing Overhead RR Wires

Second Dept. 2018. 12 NYCRR 23-1.4(b)(13) Applies to ancillary work in repairing overhead RR wires. Plaintiff injured when he was cutting & removing a tree that had fallen during Hurricane Sandy onto catenary wires along New Haven Railroad Line.  Plaintiff standing on the ground, using a power saw to cut through tree trunk when tension in the catenary wires suddenly released, propelling the tree into the air, striking plaintiff. Such catenary wires could not be repaired & train service restored sans first removing tree. As plaintiff engaged in activities ancillary to repair of catenary wires, 241(6) was applicable to such activities.  De Jesus v. Metro-North Commuter RR, 159 AD3d 951;

Removing a Tree

Second Dept. 2015. Applied.Plaintiff fell from roof of house while cutting & removing 60 foot tall tree that had fallen on house.23-1.4(b)(13) applied as ancillary repair of building.  Moreira v. Ponzo, 131 AD3d 1025;

Repairing AC Unit Built Into Wall

Second Dept. 1997. 23-1.4(b)(13) Applicable.  Plaintiff injured repairing AC built into wall of NYNEX cell site.  It was part of building. Sprague v. Peckham Materials Corp., 240 AD2d 392;

Fourth Dept.

Installation of Industrial Laundry Equipment

Fourth Dept. 2014.23-1.4(b)(13) Applied.Defendant’s motion denied as plaintiff involved in covered activity of installation of industrial laundry equipment.  Accident occurred when plaintiff drive a forklift over a plywood covered pit in the floor of a building.  Plaintiff raised issue of fact that at the time of the accident, renovation at the building was ongoing & that he was engaged in covered activity i.e., installation of industrial laundry equipment, which was part of the larger renovation project. Foots v. Consolidated Bldg. Contrs., Inc., 119 AD3d 1324;

Fourth Dept. 2004.23-1.4(b)(13)Not Dismissed. Installation of audio-visual equipment part of construction of auditorium. Hotaling v. Corning Inc., 12 AD3d 1064; Fourth Dept. 1984. 23-1.4(b)(13) Applicable.  Plaintiff struck by tree trunk during land clearing.  Nagel v. Metzger, 103 AD2d 1;

April 22. New York. Hearsay Spoken Exceptions. Statements Admissible.

Comment. Hearsay rule has certain exceptions, allowing hearsay statements to be considered by a court and/or jury.

Present Sense Impression.

Excited Utterance.

Admission.

Statement not offered for the truth of the matter asserted.

Present Sense Impression

First Dept. 2018. Hearsay Exceptions Not Apply. Present sense impression inapplicable as out of court statement from plaintiff to foreman that he fell while climbing up scaffold not corroborated by independent evidence. Excited utterance exception not apply as defendants not provide sufficient evidence of plaintiff’s mental state or established he made hearsay statement to foreman under stress of excitement. Also, such statement to foreman not within declaration against interest exception as plaintiff was available to & did testify as a witness & no evidence plaintiff knew statement was adverse to his interests when it was made & supporting circumstances not attest to its trustworthiness or reliability. Gomes v. Pearson Capital Partners LLC, 159 AD3d 480; 

Excited Utterance

First Dept. 2012. Decedent’s challenged out of court statements, to the effect that he tripped over garbage on the floor, were made to coworker immediately after the accident while he was bleeding & in a panic. Such statements, under the circumstances, could be found by a trial court to be reliable,  pursuant to exceptions to the hearsay rule & thus supply competent proof as to causation. Kutza v. Bovis Lend Lease LMB, Inc., 95 AD3d 590; 

First Dept. 2009. Excited Utterance. Exception to Hearsay Rule. Plaintiff fell from sidewalk bridge. Coworker heard plaintiff’s fellow bricklayers yelling that plaintiff had fallen backwards off the bridge. Coworker rushed to plaintiff who was lying on the ground near the building. Since the evidence affords no basis for any conclusion other than bricklayers’ exclamations were “made under the stress of excitement caused by an external event & not the product of studied reflection and possible fabrication,” such exclamations were admissible as excited utterances. Herr v. North Shore St. Devs., LLC, 61 AD3d 617;

Statement Not Offered For Truth of Matter Asserted. Not Inadmissible Hearsay.

First Dept. First Dept. 2013. Not Inadmissible Hearsay as Not Offered For Truth of Matter Asserted. Plaintiff injured while attempting to maneuver defendants’ lift, which weighed 740 pounds, under a low hanging pipe, in order to move it up a ramp to a location where he was scheduled to repair a security camera. Issue of fact exists as to whether defendant SL Green’s engineer violated a duty to impart correct information by telling plaintiff that it was not a big deal to tilt the lift & maneuver was done all the time without telling him that at least 3 people required to move machine safely. Plaintiff’s testimony on this point was not inadmissible hearsay as it was not offered for the truth of the matter asserted. Rather, it was only offered as evidence statements were in fact made. DeSario v. SL Green Mgt. LLC, 105 AD3d 421;

April 21. New York. While Worker Injured Performing “Alteration” Work is Within Protection of §240(1), Worker Drilling 2 Holes Into a Wall Not Constitute an “Alteration” to The Building. §240(1) Dismissed.

Hearns v. Blended Family, 2026 NY Slip Op 02373, decided April 21, 2026, First Dept. Plaintiff, a telecommunications field technician employed by Verizon, fell from a ladder while installing wi-fi services at mixed-use building. Building was owned by Abeken, which leased commercial portion of the premises to Blended Family. Plaintiff provided that to connect Blended Family router to Verizon’s equipment required a “long run” through a drop ceiling from Blended Family’s space, into residential hallway & then to telecommunications equipment room.

Plaintiff also provided such work required drilling a hole between Blended Family’s space & the basement hallway & then drilling another hole in the wall between the basement hallway & Verizon equipment room to feed the cabler through & back into the drop ceiling. While performing such work, plaintiff fell from a ladder.

It was held for work to qualify as “altering” within the meaning of §240(1), it must not be simple, routine, cosmetic or decorative & it must effect a significant physical change to the configuration or composition of the building or structure, including significantly changing the way an important function of the building functions, although the change need not be permanent.

Appellate Court held plaintiff drilling 2 holes in order to run cable wire not constitute alteration as to §240(1).         

Comment. “Alteration” is one of the enumerated activities of §240(1). If the plaintiff suffers a fall from an elevated height or is struck by a falling object at a work site, while engaged in work considered to be an alteration, §240(1) liability will be imposed. Work not constituting significant physical change in configuration or composition of building or structure is outside protection of 240(1) as it is not considered to be alteration work.Decorative work also outside 240(1) protection. See similar decisions below.

First Dept. 2007. 240(1) Dismissed. Splicing Fiber Optic For One Building Tenant Not “Alteration.”  No evidence that in splicing a fiber optic located in a box that plaintiff was making a significant physical change to the garage of building. Splicing a fiber into pre-existing fiber optic cable for one tenant in building not effect a significant physical change to configuration or composition of building or structure & is not alteration under 240(1). Rhodes-Evans v. 111 Chelsea LLC, 44 AD3d 430; 

Trial Court. NY County. 2024. Hon. Nicholas Moyne. Work that plaintiff was involved in was splicing of fiber optic cables which were within a manhole. This was not maintenance work but was a new installation in an existing splice box. Only category is alteration.  However, Court of appeals in Joblon v. Solow, 91 NY2d 457, found that “altering” within 240(1) requires making a significant physical change to the configuration or composition of a building or structure. Here, plaintiff’s work not involve a significant physical change to a building or structure. Plaintiff’s work consisted of “connecting existing fiber optic cables together.” Such cables & splice enclosure were already in the manhole, the splice enclosure would be retrieved and the work of actually splicing the cables was performed outside of the manhole, in a truck, and then the splice enclosure would be returned to the manhole. As the very same cables & splice enclosure that were pulled out of the manhole are returned to it once the work is completed, it cannot be said a significant change was made to the configuration or composition pf the building or structure and as such, was not an “alteration.” 240(1) dismissed. Marinelli v. Empire City Subway Co., 2024 NY Slip Op 34523(U);

April 21. New York. Statement Germane to Diagnosis or Treatment. Admissible Evidence in Defense of Labor Law §240(1) Action.  

Comment. Following statements were germane to diagnosis & treatment. Admissible evidence.

Height of ladder.

How plaintiff landed when falling.

Complaints of dizziness.

Infant’s fall from monkey bars.

Statement of plaintiff was running right before accident.

Position of plaintiff landing on ground upon a fall.

Twisted knee stepping off ladder.

First Dept.

Height of Ladder May be Germane to Diagnosis

First Dept. 2017. Whether the subject ladder was wooden or metal or whether plaintiff fell because it slipped or because the rung cracked was not germane to diagnosis or treatment of injuries resulting from the fall. However, height of ladder from which plaintiff fell may be germane to diagnosis or treatment. Mosqueda v. Ariston Dev. Group, 155 AD3d 504;  

How Plaintiff Landed When Falling

First Dept. 2013. Plaintiff’s hospital record was properly admitted as business record under CPLR 4518. As plaintiff conceded, the statement at issue regarding how he landed when he fell germane to medical diagnosis or treatment. Its admission was therefore proper. Berrios v. 735 Avenue of Americas, LLC, 103 AD3d 472; 

How Plaintiff Fell Exiting Bus Germane to Diagnosis & Treatment

First Dept. 2011. With unrefuted testimony of plaintiff’s medical expert that a medical record entry, reflecting plaintiff’s statement to a hospital personnel that his injuries occurred when he fell on his back due to a sudden, violent movement of a bus he was exiting, was relevant to diagnosis & treatment, such record was admissible into evidence. Phillips v. NYC Tran. Auth., 83 AD3d 473; 

Manner in Which Accident Occurred Germane to Diagnosis

First Dept. 2010. Plaintiff failed to demonstrate that relevant portions of medical records submitted by defendants in opposition to plaintiff’s motion constituted inadmissible hearsay. Statements in the records as to the manner in which the accident occurred were germane to the diagnosis and/or treatment of plaintiff & were properly considered as business records. Kamalov v. BIA Group, LLC, 79 AD3d 1101; 

First Dept. 2010. Issue of Fact. Lightheadedness. Decedent alleged the ladder on which he was standing while painting a store “shook slipped and collapsed.” Issue of fact raised by owner denying supplying ladder to plaintiff as well as medical records suggesting accident caused by lightheadedness. Wilson v. Yemen Realty Corp., 74 AD3d 54;

Twisted Knee Stepping Off Ladder

First Dept. 1998. Hospital record included a “patient statement” as to how the injury occurred: “I twisted my knee after I stepped off the ladder.” Statement is clearly relevant to the diagnosis & treatment of plaintiff’s injuries & therefore admissible as part of hospital record. Plaintiff’s description as to how the injury occurred is relevant not only to the treatment of his knee condition, but also to the determination of the presence and extent of injuries to other parts of the body. Eitner v. 119 West 71^st Street Owners Corp., 253 AD2d 641; 

Second Dept.

Dizziness

Second Dept. 2022. Plaintiff fell through a broken step on a public staircase in multi-family building. Entries in medical records from Kings County Hospital relating to complaints of dizziness by plaintiff a few days after her fall were allowed into evidence. A hearsay entry in hospital record that is germane to diagnosis or treatment is admissible under the business records exception to the hearsay rule as they indicated plaintiff herself reported to hospital personnel that she had been experiencing dizziness since March 2014, information that was germane to her treatment at that time. Fraser v. 147 Rockaway PKW, LLC, 203 AD3d 894;

Infant Plaintiff’s Statement of Fall From Monkey Bars Germane to Treatment

Second Dept. 2014. Infant plaintiff fell from monkey bars at schools. Records provided that plaintiff told ER physician that she fell from the monkey bars. Such statement germane to plaintiff’s medical treatment on the date of the accident. Nelson v. Friends of Associated Beth Rivka Sch. for Girls, 119 AD3d 536; 

Statement of Plaintiff Running Right Before Accident

Second Dept. 2000. Germane to Diagnosis & Treatment. Lower court erred in redacting from ER record, which was otherwise admissible as a business record, a statement that plaintiff had been running immediately prior to sustaining her injury. As the business of a hospital is to diagnose & treat its patients’ ailments, a narration of the accident causing the injury is inadmissible if not germane to diagnosis or treatment. However, a patient’s explanation as how the accident occurred may be helpful to an understanding of medical aspects. Wright v. NYCHA, 273 AD2d 378; Second Dept. 2012. Hospital records raised issue of fact whether object plaintiff tripped on was integral to work pursuant to 23-1.7(e)(1). Sanders v. St. Vincent Hosp., 95 AD3d 1195;

April 21. New York. Labor Law §240(1) Dismissed. Whether Plaintiff’s Actions of Walking Through Debris Rather Than Walking on a Beam Were Sole Proximate Cause of Accident, Issue of Fact. Were Such Actions Unnecessary & Unforeseeable?

Silva v. 9 Dekalb Fee Owner, LLC, 2026 NY Slip Op 31484(U), decided April 9, 2026, Hon. Katherine Levine, Supreme Court, Kings County. Plaintiff employed by Trident General Contracting was directed by a Trident supervisor to carry metal concrete forms & hand such forms up to workers installing the forms. Just before the accident, plaintiff hoisted a smaller form onto his shoulder & started walking on a beam. Accident occurred when plaintiff stepped off the beam to an area 30 inches below the beam filled with debris. Plaintiff stepped on a piece of debris, causing a fall.

Plaintiff conceded he could have walked on the beam around the debris to hand off the form but he did not do so because other side of the beam was at the edge of the building. Defendants asserted plaintiff’s decision to step into the debris rather than continuing to walk on the beam was proximate cause of accident. The decision noted cases where sole proximate cause was established where plaintiff’s workplace actions were unnecessary & unforeseeable. Photo showed the beam did not have debris on it & there was edge protection along the outer side of the beam at the edge of the building. Defendants asserted the beam served as the only reasonable pathway for plaintiff to transport the forms.

However, the photo showed the beam was narrow & a gap between the edge of the beam & netting. As such, it was held by the court that plaintiff’s “concern about walking along the edge of the building may not have been wholly unreasonable.” Court found issue of fact whether plaintiff’s actions were the sole proximate cause of the accident.

Below are decisions addressing issue of sole proximate cause.

 Using Improper Object to Access Roof

Court of Appeals. 2005. 240(1) Dismissed. Plaintiff, employed as helper by elevator company, was assigned work in motor room located 4 feet above the roof level of building. Stairs previously in place to roof were removed & no ladder in the vicinity, but ladders were available at job site. Rather than get a ladder, plaintiff climbed to motor room by standing on inverted bucket. When plaintiff exited motor room, he jumped down to the roof, injuring himself. As ladders were readily available, plaintiff’s “normal & logical response” should have been to go get one. Plaintiff’s choice to use bucket to reach motor room & then jump down, sole cause of his injury & not entitled to recover under 240(1). Montgomery v. Federal Express Corp., 4 NY3d 805;

Failure to Use Safety Harness

First Dept. 2018. Worker’s failure to use safety harness while working on roof, proximate cause of accident. Contrary to plaintiff’s argument, fall through unguarded opening in floor of construction site constitutes a violation of 240(1) only where safety device adequate to prevent such fall was not provided. Safety line & harness may be adequate safety device for person working over open area or near elevated edge. Defendants established 240(1) not violated as plaintiff’s actions sole proximate cause of accident as harness & safety rope system were in place on the roof; that worker was instructed to remain tied off at all times while on the roof & that he could not have reached skylight through which he fell if he had remained tied off. Plaintiff’s claim insufficient that worker unhooked his harness to reach the lift that transported workers to & from the roof or system of harness, lanyard & safety rope failed. Guaman v. City of NY, 158 AD3d 492;

Hazardous Condition Created by Plaintiff’s Un-Securing Ladders in Truck

First Dept. 2016. 240(1) Dismissed. Work plaintiff engaged in, i.e., retrieving ladders his employers used at work site, was a construction-related activity covered by 240(1) & 241(6). Although the first ladder plaintiff loaded onto the rack atop the truck slid toward the end of rack as he loaded it, it was secured by plaintiff with a bungee cord. When loading second ladder, instead of taking another of several bungee cords available, he unhooked the bungee cord securing first ladder, intending to wrap it around it around both ladders. As a result, the ladders slid into him knocking him off truck. As plaintiff’s actions sole proximate cause of accident, all causes of action dismissed. Guido v. Dormitory Auth. of the State of NY, 145 AD3d 591;

Stepping on Milk Crates in Climbing Down From Platform

First Dept. 2015. 240(1) Dismissed. Plaintiff injured when he followed coworker in climbing down from loading platform by stepping onto piled up milk crates, which were on ground, although defendants provided wall-mounted ladder for use in exiting the platform. Plaintiff’s choice to use crates rather than ladder sole proximate cause of accident. Whether ladder visible behind truck parked in area irrelevant, as plaintiff testified not look for another means of accessing parking level. Newman v. RCPI Landmark Props., LLC, 124 AD3d 551;

Decedent Directing Boom Lift Operator

First Dept. 2013. 240(1) Dismissed. No showing of Inadequate Equipment Provided. Action arose from death of construction worker when a 14,000 pound boom lift, which was being lifted off roof by a crane, drifted out of position & pinned him against a wall. Decedent told boom lift driver where to position boom lift to be removed from the roof & acted as signal person, directing crane operator through hand signals, though he was not personally directing employee rigging the boom lift to crane. For there to be 240(1) liability, owner or contractor must have failed to provide worker with adequate safety devices & such failure must cause accident. Plaintiff failed to provide sufficient evidence to raise issue of fact whether defendant failed to provide safety devices & such failure caused the accident. Plaintiff failed to overcome evidence that decedent’s conduct & decisions sole proximate cause of accident. Plaintiff’s claims under Sections 200, 240(1) & 241(6) all dismissed. Kerrigan v. TDX Constr., 108 AD3d 468; 

Using Negligent Work Method

First Dept. 2011. 240(1) Dismissed. Plaintiff testified that while performing demolition work on second story deck of building, he fell off the deck through a space where its railing was removed. However,  foreman for plaintiff’s employer testified accident occurred as plaintiff straddled A-frame ladder leaning against deck railing & extension ladder, pulling down a gutter from the roof. While foreman told plaintiff to stop, gutter gave way, causing a fall. While jury found a violation of 240(1), it held such violation not proximate cause of accident. Appellate Court affirmed jury verdict. Ramirez v. Willow Ridge CC, Inc., 84 AD3d 452; 

Worker Left Caulking Gun on Ladder. Caulking Gun Later Fell Off Ladder.

First Dept. 2010. 240(1) Dismissed. Plaintiff struck by caulking gun he temporarily left on a ladder rung while working. Plaintiff asserted defendants should have provided a scaffold or manlift. Caulking gun not fall because of absence or inadequacy of a ladder, scaffold or manlift. Plaintiff left it on the ladder temporarily & forgot to remove it before adjusting ladder. No evidence presented by plaintiff that absence of scaffold or lift proximately caused accident. Plaintiff’s conduct sole proximate cause of accident. Garzon v. MTA, 70 AD3d 568;

Plaintiff Unilaterally Used Wrong Ladder For Task

First Dept. 2007. 240(1) Dismissed as Plaintiff’s Action Sole Proximate Cause. In building scaffolding on first floor of building under construction, plaintiff covered staircase providing only access to basement. After staircase was covered, plaintiff realized needed additional materials for scaffolding that were located in basement, 10 feet below first floor. Instead of dismantling scaffold or attempting to locate one of tall ladders on site, plaintiff decided to use a too short 6 foot A-frame ladder. As space was too narrow, plaintiff could not fully open A-frame ladder so that braces could be locked. No one instructed plaintiff to use A-frame ladder. Plaintiff decided removing scaffold was too big a job. While plaintiff ascending ladder after retrieving materials, ladder slid out from underneath him, causing fall into basement. Summary judgement granted to defendant. Egan v. Monadnock Constr., Inc., 43 AD3d 692;  

While Plaintiff Could Have Requested Another Ladder That Had Not Been Sprayed With Fireproofing Material, Plaintiff Did Not.

First Dept. 2007. 240(1) Dismissed. Transient Condition on Ladder Caused Plaintiff to Slip. Plaintiff slipped & fell as he climbed down 6 foot wooden ladder partially covered with sprayed-on fireproofing material. Plaintiff claimed such fireproofing material caused him to lose footing. Plaintiff testified he could have requested another ladder but did not. Plaintiff’s actions sole proximate cause of accident. Miro v. Plaza Constr. Corp., 38 AD3d 454;

Accident Resulted From Worker Fatigue

First Dept. 2007. 240(1) Dismissed. Accident Caused by Fatigue. Plaintiff fell off a ladder while engaged in cleaning AC units routinely performed as part of preventive maintenance contract. Plaintiff climbed a steel ladder affixed to building to access roof where AC units located & then, once on the roof, used a rope to hoist materials up. However, in bringing up a power washer to the roof, plaintiff tied the washer to the rope & then climbed the ladder by holding onto its rungs with his left hand & using right hand to guide the washer up the ladder. However, as plaintiff neared the roof as he climbed the ladder, his left arm began to weaken & he dropped the power washer & also fell off the ladder. Coworker testified plaintiff fell because of fatigue. As such, plaintiff’s actions sole proximate cause of his accident. Rukaj v. Eastview Holdings, LLC, 36 AD3d 519;

Use of Temporary Stairs in Process of Being Constructed

First Dept. 2005. 240(1) Dismissed. Temporary stairs from which plaintiff were still in process of being constructed. Plaintiff, who was assisting in construction of such stairs, was aware temporary stairs had yet to be bolted to parapet wall. Another nearby set of temporary stairs had been completed & affixed to parapet wall & were being used by workers on day of accident. Stairs from which plaintiff fell did not break when he fell, were not otherwise defective & were mounted to wall after the accident. As such, plaintiff’s actions sole proximate cause of accident. Thomas v. Fall Cr. Contrs, Inc., 21 AD3d 756;

Issue of Fact as to Sole Proximate Cause of Accident.

First Dept. 2023. Issue of Fact. Whether plaintiff’s fall from ladder solely caused by plaintiff’s intoxicated condition according to foreman’s testimony.Hernandez v. 46-24 28^th St., LLC, 214 AD3d 451; 

First Dept. 2015. Issue of Fact Proximate Cause. Whether plaintiff should have used available safety devices while painting a billboard. While painting over graffiti on a billboard, plaintiff stood on stack of three concrete blocks. Lost his balance as he reached up to loosen one of the straps that held the image to billboard frame so he could paint underneath it. Although plaintiff given a truck equipped with cherry picker that extended 80 feet, with controls inside the basket; safety harness & lanyard & two ladders (8 feet & 24 feet), he did not attempt to use any of such devices. Rather, he opted to use the blocks as platform.  Plaintiff argued he could not paint inside cherry picker as concrete blocks & light fixtures in front of billboard were in the way. Further, he took off his safety harness because there was no place to tie off to billboard. Held, that while plaintiff supplied with 4 safety devices, he chose not to use any of them, opting instead to use concrete blocks, whose intended purpose were to act as counterweight to billboard, not act as platform. Testimony of multiple places plaintiff could have tied off on the billboard. Issue of fact whether plaintiff’s actions sole cause of accident. Quinones v. Olmstead Props., Inc., 133 AD3d 87;

Second Dept.

Plaintiff Possible Misuse of Scaffold

Second Dept. 2023. Defendants raised issue of fact with evidence that scaffold was constructed properly & that plaintiff may have altered condition of scaffold by removing the nails securing the plank upon which he was standing in such a manner as to create the condition causing the collapse. Elibox v. Nehemiah Spring Creek, 219 AD3d 906.

Second Dept. 2006. Defendant offered evidence suggesting plaintiff, or laborers under his supervision, placed an inadequate wooden plank on the scaffold causing it to collapse. When a plaintiff handles a scaffold in such a manner as to create the condition causing the collapse, such conduct is proximate cause of accident. Berenson v. Jericho Water Dist., 33 AD3d 574;  

Failed to Use Provided Ladders

Second Dept. 2023. 240(1) Dismissed. Instead of using provided ladders, which plaintiff instructed to use, walked on wooden cross brace which collapsed.Plaintiff, a laborer, while exiting  excavation, stepped on wooden cross brace which then collapsed, causing plaintiff to fall 6 feet to bottom of excavation. Plaintiff stepped on wooden cross brace which was not intended as walkway, rather than using one of ladders that were provided, which he was instructed to use. Plaintiff’s actions sole proximate cause of the accident. Calle v. City of NY, 212 AD3d 763;

Losing Balance on Ladder

Second Dept. 2022. 240(1) Dismissed. Plaintiff lost balance on ladder. Plaintiff testified at his deposition that while descending a 6 foot A frame ladder, when he reached second rung from bottom of the ladder, he lost his balance & fell. Plaintiff not recall whether ladder moved in any way before he fell. Defendants established ladder not defective, that additional safety devices not required & plaintiff’s actions sole proximate cause of fall. Singh v. 180 Varick, LLC, 203 AD3d 1194;  

Moving a Mortar Buggy Down Ramp Sans Assistance

Second Dept. 2019. 240(1) Dismissed. Plaintiff’s Actions Sole Proximate Cause of Action. Plaintiff injured while attempting to move a mortar buggy down a ramp during construction of a new building. Court held there was valid line of reasoning & permissible inferences which could have led rational jury to conclude plaintiff’s own conduct in attempting to move the mortar buggy, without assistance, rather than a violation of 240(1), was sole proximate cause of the accident. Luna v. 4300 Crescent , LLC, 174 AD3d 881;

Inverted Bucket Use

Second Dept. 2022. 240(1) Dismissed. Standing on inverted bucket to reach power cable. No evidence a ladder needed for the work. Plaintiff was employee of company to install stacked washer & dryer units in apartments. Plaintiff stood on inverted bucket to reach power cable for stacked washer dryer unit that he had just pushed into the closet before he plugged in power cable. As power cable was out of reach, & that washer dryer, although on wheels was still difficult to move, he stood on inverted bucket to reach power cable. Such bucket slipped, causing a fall. Plaintiff’s deposition testimony established prior to accident he had installed 20 stacked washer dryer units without use of ladder. Also, he could have moved washer dryer unit out of the closet to reach power cable. Morales v. 50 N. First Partners, LLC, 208 AD3d 475;

Standing on Inverted Bucket

Second Dept. 2018. Issue of Fact. Whether plaintiff standing on inverted bucket sole proximate cause of accident. Plaintiff’s Summary Judgment Motion Denied. Carpenter injured in course of installing sheetrock on ceiling of 6^th floor dining room. While plaintiff began his work using ladder to take measurements, he then returned ladder to coworker who was using it first. Plaintiff then stood on inverted bucket to reach ceiling. Bucket tilted, plaintiff fell. No 240(1) liability when safety devices plaintiff alleges were absent were readily available at work site, albeit not in immediate vicinity of accident area & plaintiff knew he was expected to use them but for no good reason chose not to do so, causing the accident. Plaintiff’s summary judgment denied as he testified ladders & Bakers scaffolds were kept on job site. He also testified he previously requested more ladders when he first started working on project & additional ladders provided. Plaintiff, who was among a group of 6 workers, could not recall how many ladders were on site & did not know if more than 6 ladders. Plaintiff not go & look for ladders. Lorde v. Margaret Tietz Nursing & Rehabilitation Ctr., 162 AD3d 878;

Second Dept. 2011. Issue of Fact. Sole Proximate Cause of Accident. While working for contractor hired to remove & replace various areas of roof of school owned by defendant, plaintiff fell through skylight located in higher area of roof not part of subject project. Issue of fact whether plaintiff’s own actions sole proximate cause of accident. Ponce-Francisco v. Plainview-Old Bethpage Cent. School Dist., 83 AD3d 683;  

Plaintiff Chose to Step on Unsecured Plank.

Second Dept. 2017. 240(1) Dismissed. Plaintiff & coworkers erecting scaffold in rear yard area to make platform even with sidewalk, which was 6 feet above the rear yard. Plaintiff stepped into unsecured wooden plank, causing fall. Plaintiff’s actions sole proximate cause of accident, as he chose to step upon unsecured plank that he had just seconds before placed on narrow steel beam, rather than standing upon secured planking available to him, which he previously used in the minutes leading up to accident. Melendez v. 778 Park Ave. Bldg. Corp., 153 AD3d 700;

Falling Off Back of Pickup Truck

Second Dept. 2016. 240(1) Dismissed. Falling off back of pickup truck. Plaintiff sole proximate cause of accident. Plaintiff & coworker loaded multiple pieces of construction material onto back of pickup truck to transport  materials from one location at construction site to another. Plaintiff placed iron grate on open tailgate of pickup truck. Because of short distance, none of material secured. Plaintiff sat on iron grate & when truck began to move, plaintiff fell off iron grate, falling to ground. Iron grate fell on plaintiff as he was on ground. Task plaintiff engaged in, riding on back of pick-up truck, not an elevation-related risk. Coworker advised plaintiff to sit in front passenger seat. Plaintiff unilaterally decided to sit on iron grate. Such decision sole proximate cause of accident. Eddy v. John Hummel Custom Bldrs., Inc., 147 AD3d 16;

Refused to Use Ladder in Immediate Vicinity

Second Dept. 2016. 240(1) Dismissed. Instead of using A-Frame ladder in immediate vicinity, plaintiff constructed unsecured structure of planks. Plaintiff & coworker installing wooden coverings to metal support columns on ground floor of a property. Despite presence of A-frame ladder in immediate vicinity & metal scaffolding on same level, plaintiff constructed unsecured makeshift structure by affixing wooden planks on top of each other over metal rebar protruding from concrete ground floor. The makeshift structure collapsed, plaintiff fell 10 feet. Plaintiff sole proximate cause of accident as he constructed & used improperly placed, unsecured makeshift structure rather than using A-frame ladder available in immediate vicinity.  Saavedra v. 64 Annfield Ct. Corp., 137 AD3d 771;

Unhooked Safety Harness.

Second Dept. 2007. 240(1) Dismissed. Unhooked Safety Harness. Plaintiff fell 13 feet from scissor lift while painting section of Verrazano Bridge. Defendants established plaintiff provided safety harness & lanyard; that plaintiff present for several safety meetings at which he was instructed in use of harness; instructed to tie off the harness at all times while using scissor lift & plaintiff intentionally unhooked his harness & climbed on railing of scissor lift, in direct violation of such instruction. No dispute plaintiff would not have fallen if his harness hooked to scissor lift. Affidavit of plaintiff’s supervisor said plaintiff instructed to paint only those areas which he could safely reach. Plaintiff submitted no contradicting evidence. As such, plaintiff sole proximate cause of accident. Leniar v. MTA, 37 AD3d 425;

Working in Restricted Area.

Second Dept. 2013. Issue of Fact. Plaintiff’s Motion For 240(1) Denied. While picking up debris on first floor of building as part of demolition project, floor collapsed beneath plaintiff, causing a fall to basement floor below. 240(1) violated where floor unstable & plaintiff not provided safety devices despite elevation risks. However, third party defendant submitted affidavit of its co-owner, who was supervising the work at the time of accident. Co-owner stated area where plaintiff fell was cordoned off because floor unstable & also, that he specifically told plaintiff several times not to enter restricted area. Last time co-owner warned plaintiff was 30 minutes before accident. Issue of fact exists whether plaintiff’s actions sole proximate cause of accident. Godoy v. Neighborhood Hous. Dev. Fund Co., Inc., 104 AD3d 646;

Plaintiff Injured in Unauthorized Work Area

Second Dept. 2008. Issue of Fact as to Sole Proximate Cause. Plaintiff hired as to installing telephone system. While running wires in attic crawl space, plaintiff fell through sheet rock ceiling while attempting to traverse a gap in a plywood path laid across ceiling joists. Plaintiff described gap as requiring a “good leap” to cross & plywood path as being obstructed by discarded metal door. According to defendant, plaintiff instructed to run wires on outside of office walls & not to enter attic crawl space. Issues of fact whether plaintiff’s actions sole proximate cause of accident. Becker v. ADN Design Corp., 45 AD3d 711;

Failed to Check Scaffold Condition Before Moving Scaffold

Second Dept. 2004. 240(1) Dismissed. Plaintiff struck by a 37 pound bucket of joint compound fell on his head from atop 16 foot scaffold that he was moving in preparation for breaking down the scaffold. Plaintiff failed to check top of scaffold before moving it. It was claimed the scaffold had no protective rails.  Evidence established bucket of joint compound not being hoisted or secured when plaintiff caused it to topple from its perch. Accident that resulted was type of hazard construction worker usually encounters on the job. Also, plaintiff’s actions sole proximate cause of accident. Gambino v. Massachusetts Mut. Life Ins. Co., 8 AD3d 337;

Third Dept.

Failed to Attached Safety Harness to Basket

Third Dept. 2010. 240(1) Dismissed. Plaintiff Sole Proximate Cause of Accident. Plaintiff installing rubber membranes & metal flashing on second story windows of building. To reach windows, plaintiff utilized mechanical telescoping boom lift. Attached to boom lift was metal basket in which plaintiff, coworker & their tools were located. 3 of 4 sides of basket enclosed by permanent metal rails. Fourth side enclosed by metal gate that opened into the basket to allow for ingress & egress of workers. Plaintiff & coworker provided with safety harnesses & lanyards attached to the basket. Coworker noticed plaintiff not attached lanyard on his harness to basket & reminded him to do so. Coworker then began work & a few moments later turned around & saw plaintiff was gone & gate on basket in open position. Plaintiff fell 30 fell landing on narrow slab of concrete. Grove v. Cornell Univ., 75 AD3d 718;

Removed a Glove Resulting in Cut to Hand

Third Dept. 2010. 240(1) Dismissed. Plaintiff’s Actions Sole Proximate Cause. Plaintiff, experienced roofer tinsmith & building maintenance worker, purchased extended roof bracket designed to support existing chimney pipe in employer’s building. Because of sharp corners & edges of steel parts of bracket, plaintiff wore leather gloves. At some point, plaintiff removed gloves as coworker, who was holding ladder for plaintiff, left to retrieve additional screws to attach bracket to the wall. Plaintiff stayed on ladder rather than descend it until coworker returned with screws. Ladder then slid on damp concrete floor. As ladder was sliding, plaintiff inadvertently grabbed a sharp part of bracket, cutting his ungloved hand. Plaintiff fell because he stayed on ladder when there was no one to hold ladder & he cut his finger from removing the glove. Plaintiff’s own conduct was so extraordinary under the circumstances as to absolve defendants of liability. Aransky v. Comfort Mart Distribs., Inc., 52 AD2d 1076; 

Issue of Fact. Sole Proximate Cause of Accident. Use of Defective Plank.

Third Dept. 2010. Issue of Fact. Whether plaintiff sole proximate cause of accident. Use of broken plank. While working at construction site, plank on which plaintiff standing as part of makeshift scaffold broke beneath him, causing a fall. In connection with his work as taper for D&B, his supervisor provided him with 2 ladders & wooden plank, instructing him on how to build scaffold to be used in stairwell area. Plaintiff assembled makeshift scaffold & then took it down before taking a break. When he later reconstructed scaffold, he walked on it & it broke. Plaintiff learned co-worker placed broken plank near plaintiff’s work area, which plaintiff used in constructing scaffold. Plaintiff not provided safety harness. Defendant provided deposition testimony that carpenter told plaintiff not to use plank as it was broken & plaintiff replied he did not care. Testimony of other planks being available where plaintiff was working. Issue of fact whether plaintiff sole cause of his accident. Silvia v. Bow Tie Partners, LLC, 77 AD3d 1143; 

Fall From Plank. Issue of Fact as to 240(1) Liability.

Third Dept. 2022.  Issue of Fact. Whether one scaffold sufficient to perform the job & whether plaintiff sole proximate cause of accident. Plaintiff testified that to tape in kitchen area, which had a cathedral ceiling, he needed scaffolding which he obtained. As plaintiff began taping far edge of ceiling, he then moved 3 times with scaffold to cover ceiling, section by section. After moving scaffold 3 times, he ran a plank from scaffold to windowsill so he could run one piece of tape across entire room. He was walking on plank before falling. Defendant’s expert, John Coniglio, disagreed plaintiff’s method of taping was necessary. Mr. Coniglio opined scaffold could have been moved along the tape line without detriment to quality of work being performed. Court held Coniglio affidavit raised issue of fact whether plaintiff was sole proximate cause of accident & whether 240(1) violated, as disputed whether one scaffold sufficient to perform the job. Morin v. Heritage Bldrs. Group, LLC, 211 AD3d 1138;

Misuse of Ladder

Third Dept. 2006. Ladder on which plaintiff was working slid down a wall. Plaintiff & co-worker, deciding they needed 2 ladders to work in separate rooms, took apart extension ladder. The misuse of the ladder was not comparative negligence. It was sole proximate cause of accident. Albert v. Williams Lubricants, 35 AD3d 1115;  

Fourth Dept.

Sat on Elevated Windowsill Waiting For Ladder, Instead of Waiting Inside Building. Fourth Dept. 2015. 240(1) Dismissed. Plaintiff employed by subcontractor to perform cable installation at building. As part of that work, plaintiff instructed to run a ground wire from room on first floor to lockbox at exterior of building. As plaintiff unable to locate anyone with key to building, he used ladder to enter a room through a window. While plaintiff was completing his task inside the room, coworkers removed ladder & plaintiff was told ladder would be returned in few minutes. As plaintiff sat on windowsill waiting for ladder, he leaned out to say something to coworkers & lost balance, falling to ground below. Defendants established that they could not reasonably foresee that a person in plaintiff’s circumstances would not wait for ladder inside of building. Before he decided to sit on the windowsill, plaintiff not in emergent situation. Was in position of absolute safety, although subject to inconvenience. Plaintiff aware ladder be returned when he put his safety at risk. Plaintiff’s conduct superseded any alleged breach of duty by defendants terminating defendants’ liability for his injuries. Miller v. Webb of Buffalo, LLC, 126 AD3d 1477;

April 20. New York. Safety Manager (SM). Contractual Indemnification Claim Against SM Dismissed.

Safety Manager. Responsible for ensuringworkers on construction projects maintain the highest level of safety. As an integral part of any complex project, a safety manager works in close collaboration with project owners & contractors to develop safety plans and protocols. (Procore, 2024)  

Comment. If not in control of site, SM no obligation to indemnify premises owner & GC.

SM contracted to only serve in advisory capacity & had no obligation or authority to correct work hazards.

Failure to identify & warn of such unsafe condition not require it to indemnify premises owner & GC.

Site Safety advised Flintlock, the GC, on safety matters & at most, had authority to stop unsafe work practices.

Site Safety lacked control over plaintiff’s work. Site Safety entitled to dismissal of contractual indemnification claim.

Contract unambiguously limited Site Safety’s indemnification duty to instances of its negligence.

First Dept.

Failure to identify & warn of unsafe condition not require SM to indemnify premises owner & GC.

First Dept. 2023. Indemnification claims dismissed against SM. Steel tubing being hoisted came loose, falling 11 stories, striking plaintiff. Although sidewalk bridge in place, steel tubing fell through 3 foot gap between sidewalk bridge & building. Rockledge built sidewalk bridge. Site safety manager City Safety’s failure to identify & warn of such unsafe condition not require it to indemnify premises owner & GC. SM contracted to only serve in advisory capacity & no obligation or authority to correct work hazards. Dejesus v. Downtown Re Holdings LLC, 217 AD3d 524;

First Dept. 2011. §200 Dismissed. SM Not Negligent & Lacked Control Over Injury Producing Work. Site Safety advised Flintlock, the GC, on safety matters & at most, had the authority to stop unsafe work practices. As such, Site Safety lacked control over conduct of work at project necessary to impose liability under §200. In affidavit, Site Safety’s onsite safety manager wrote he rendered services as outlined in parties’ contract & did not control, supervise or direct work at site. Contract provided for Site Safety to indemnify Flintlock, the GC, only for losses caused by Site Safety’s negligence. As Site Safety lacked control over plaintiff’s work, Site Safety entitled to dismissal of contractual indemnification claim of GC. Flintlock’s claim that it relied upon Site Safety to correct unsafe work practice not basis for contractual indemnification. Contract unambiguously limited Site Safety’s indemnification duty to instances of its negligence. Martinez v. 342 Prop. LLC, 89 AD3d 468;

Second Dept.

Second Dept. 2013. Common Law Indemnification Dismissed Against Safety Consultant. Safety & Quality Plus, Inc., hired as safety consultant by RC Dolner. Plaintiff stepped off unguarded edge of elevated concrete of basement. Safety recommended RC Dolner install guardrail in subject area & RC Dolner in fact installed guardrail. There was no evidence as to who removed guardrail. Held that no rational jury could have found that Safety responsible for providing plaintiff with safe place to work or had authority to supervise or control performance of work that brought about accident. RC Dolner’s cross claims against Safety seeking common law indemnification denied. Pope v. Safety & Quality Plus, Inc., 111 AD3d 911; Second Dept. 2016.

Safety Consultant Failed to Show Not in Breach Contractual Duty. Contractual indemnification claim not dismissed. Under consultant agreement, PSS had duty to recommend necessary action to correct substandard safety conditions, & owners & GC entitled to rely on PSS to make such recommendations.  PSS failed to establish it did not breach such contractual duty with respect to its recommendations to owners & Congress Builders as to plywood cover & whether it was sufficient to safely cover hole through which plaintiff fell. PSS failed to meet its prima facie burden. Marquez v. L&M Dev. Partners, Inc., 141 AD3d 694.

April 20. New York. Accident Not Result From Force of Gravity. Labor Law 240(1) Dismissed.

Comment. Where accident occurred from a fall, such as tripping or slipping, not gravitational force, 240(1) dismissed. Kinetic energy effect on beam, rather than force of gravity, resulted in dismissal of 240(1).

240(1) Dismissed

Loss of balance.

Tripping Condition.

Release of tensile street in beam on ground.

Breaking step.

Pushing cart up a ramp.

Throwing a hose up to higher work level at work site.

Worker’s shirt caught in cement mixer, causing fall.

Court of Appeals

Painter’s Hand Crushed Between Scaffold & Bridge

Court of Appeals. 2010. 240(1) Dismissed. While scaffold injury occurred at elevated height, injury not result of force of gravity.  Plaintiff injured during course of his work of painting a bridge.  Plaintiff’s hand crushed as a scaffold continued to move under the impetus of one of its motors, while his hand was trapped between external motor control on scaffold & the steel of the bridge. As injury was not direct consequence of application of the force of gravity to an object or person, 240(1) claim was dismissed. Gasques v. State of New York, 15 NY3d 869;

First Dept.

Loss of Balance

First Dept. 2018. 240(1) Dismissed. While plaintiff carrying water main pipe he lost balance upon stepping on makeshift ramp that “bowed,” causing pipe to fall & plaintiff injured. Height differential of 6-10 inches of ramp not constitute physically significant elevation differential under 240(1). Also, impetus for pipe’s descent was plaintiff’s loss of balance, rather than direct consequence of force of gravity. Jackson v. Hunter Roberts Constr. Group, LLC, 161 AD3d 666;

High Pressure Use, Not Gravity

First Dept. 2016. 240(1) Dismissed.  Pipe striking plaintiff not gravity related accident but rather, because of high pressure use. Plaintiff struck by a pipe as it was being flushed clean with highly pressurized mixture of air, water and a rubber “rabbit” device. Movement of such mixture through pipe failed to bring this within 240(1) as it did not involve direct consequence of force of gravity to an object. Mixture in the pipe not move through by force of gravity but intentionally propelled through pipe by use of high pressure. Joseph v. City of NY, 143 AD3d 489;

Moving 8000 Pound of Equipment Across Flat Platform, Plaintiff Pinned Against a Column.

First Dept. 240(1) Dismissed. 2015.  Plaintiff & coworkers moving 8000 pound piece of equipment across a flat platform with intent of placing equipment onto forks of a forklift. Because 2 wheels broke off, workers were pushing & pulling equipment when it pinned him against a column on the side of flat platform.  Plaintiff testified equipment not lifted & it did not fall. He also did not know what caused equipment to shift to his side. As such, equipment not a falling object & plaintiff not a falling worker.  Accident not result of force of gravity. Martinez v. 342 Prop.. LLC, 128 AD3d 408;

Tripping Caused Stone’s Fall, Not Gravity

First Dept. 2012. 240(1) Dismissed.. Plaintiff stonemason tripped over small stone while carrying a stone weighing 100 pounds across open, grassy area. When plaintiff tripped, stone he was carrying fell upon his knee & wrist. Impetus for heavy stone’s fall was plaintiff’s tripping on ground level, rather than direct consequence of gravity. Ghany v. BC Tile Contrs., Inc., 95 AD3d 768;

Plaintiff Struck by Beam’s Sudden Upward Movement by Kinetic Energy From Release of Tensile Stress in Beam

First Dept. 2016. 240(1) Dismissed., Not Because of Gravity. Plaintiff engaged in demolition of elevator shaft. He attempted to take down two 12 foot vertical steel beams topped by horizontal steel beam 2 feet long. As he cut into 2 vertical beams until they fell over & horizontal beam, still attached to other beams, hit the floor. As plaintiff bent over to sever horizonal beam from left vertical beam, the beam sprang up & hit him in the face. 240(1) dismissed as accident not result of failure to provide protection against the application of gravity but rather from propulsion of vertical beam upward by kinetic energy of sudden release of tensile stress in beam. Quishpi v. 80 WEA Owner, LLC, 145 AD3d 521;

Breaking of Step Caused Accident, Not Gravitational Force

First Dept. 2010. 240(1) Dismissed. Plaintiff stepped on 3 step staircase to descend from basement floor into a pit containing refrigeration unit he was to perform work on.  Middle step, 18 inches above the floor, broke. 3 step staircase neither safety device nor a temporary stairway to protect worker from elevation-related risk within meaning of 240(1). Such middle step not of sufficient height for protection of 240(1) nor was plaintiff exposed to type of extraordinary risk for which 240(1) designed. Here, accident stemmed from breaking of a step on a stairway & not by gravitational force. Such minor elevation not call for any of safety devices enumerated in 240(1). Lombardo v. Park Tower Mgt. Ltd., 76 AD3d 497;

Coworkers Pushed Cart Up Ramp Over Worker’s Foot

First Dept. 2010. 240(1) Dismissed. Accident Not Result of Gravity. Plaintiff alleged defendants caused or permitted ramp upon which plaintiff pulling a cart filled with drywall to have excessively steep slope, leading to coworkers pushing cart over his foot. Here, accident not caused by effects of gravity. Rather, cart rolled over plaintiff’s foot while coworkers pushing it back up the ramp, that is, while cart was ascending ramp. Sinkaus v. Regional Scaffolding & Hoisting Co., Inc., 71 AD3d 478;

Second Dept.

Pipe Propelled Upward by Sudden Release of Tension

Second Dept. 2022. Issue of Fact. Whether accident caused when pipe propelled upward by the sudden release in the tension of the strap & thus, not direct consequence of application of force to object or person. Plaintiff struck by section of caisson pipe being cut with a blow torch by coworker. A strap was tied around the pipe & connected to bucket of a backhoe excavator to prevent pipe from falling to the ground after it was cut. Strap tied tightly. As pipe was cut, pipe suddenly sprang up several feet into the air, striking plaintiff. Lima v. HY 38 Owner, LLC, 208 AD3d 1181;

Throwing a Hose

Second Dept. 2019. 240(1) Dismissed. Plaintiff injured throwing 100 pound hose to area 15-20 Feet above him. Accident not caused by elevation-related risk.Clark v. FC Yonkers Assoc., LLC, 172 AD3d 1159;

3-Step Interior Pool Staircase

Second Dept. 2017.Tile setter, working at construction of 30-story condominium building, slipped and fell on secured rosin paper placed on 3-step interior pool staircase. Fall not the result of application of force of gravity.  240(1) dismissed. Lopez v. Edge 11211, LLC, 150 AD3d 1214. 

Struck by Pipe Not Result of Force of Gravity

Second Dept. 2016. 240(1) Dismissed. While employee of Metro descending ladder, he swung pipe he was holding that struck plaintiff, whom he did not realize was standing near him. 240(1) dismissed as accident not direct consequences of application of force of gravity to object or person. Palomeque v. Capital Improvement Servs., LLC, 145 AD3d 912; 

Shirt Caught in Cement Truck’s Mixer Second Dept. 2012. Section 240(1) Dismissed. Plaintiff, driver of cement mixing truck was directed by contractors & construction manager to position his truck side by side with another cement truck so 2 trucks could simultaneously pour cement into a hopper. Plaintiff mounted truck’s rear fender, which was 3 feet of ground & knelt down to activate water mixing valve. At this time back of his shirt became caught in mixer’s rotating hatch handle, caused plaintiff to be propelled upward & over to other side of truck. Plaintiff not exposed to elevation related risk & accident not directly flow from application of gravity’s force. Rather, accident arose from activities & circumstances arising on construction site & not covered by 240(1). DeRosa v. Bovis Lend Lease LMB, Inc., 96 AD3d 652;   

April 19. Labor Law §200. Subcontractor Subbing Out Work to Another Subcontractor.

Comment. Was there control & supervision over sub-subcontractor’s work? Subcontractor entering into a contract or agreement may enter into a subcontract subbing out such work to another subcontractor, often referred to as sub-subcontractor. Where work of sub-subcontractor results in injury to a worker, is the subcontractor liable for negligence of the sub-subcontractor? Subcontractor is liable under §200 where it exercised control & supervision over work of sub-subcontractor.

While §200 may be dismissed, remember 240(1) & 241(6) causes of action will not be dismissed where the subcontractor subcontracting out the work is a statutory agent of the owner of GC.  Even where the subcontractor is a statutory agent of owner or GC, the §200 claim is dismissed where the work was subcontracted out & no control over the work.

To be liable under §200, subcontractor must exercise actual supervision over the work and not just having the authority to supervise.

First Dept.

§200 Dismissed

First Dept. 2021. §200 Dismissed. Plaintiff fell off ladder performing electrical work. Ergonomic was hired to facilitate removal of computer racks & furniture. Ergonomic performed no physical work & not onsite at time of accident. To extent it might have had authority to supervise injury producing work, it never exercised such authority, but rather, subcontracted such contractual duties to Quick, which actually directed & supervised the work. Fact that Ergonomic scheduled & coordinated Quick’s work insufficient to give rise to liability, Balcazar v. Commet 380, Inc., 199 AD3d 403;

First Dept. 2015. §200 Dismissed. Linden, retained to provide drywall & carpentry work, sub-subcontracted all of its work to Tower & New York Drywall & furnished none of its workers to perform work. Rather, Linden’s presence on site limited to one hour visits by its president once a week or every other week. As no evidence Linden itself created dangerous condition or had actual or constructive notice of it, common law negligence & §200 causes of action dismissed. However, as Linden’s subcontract with NB 20 delegated to it authority to supervise all drywall work & given plaintiff’s allegation that presence of pipe segment on floor caused by employees of Linden’s spackling sub-subcontractor Tower, Linden subject to liability under 241(6) as statutory agent. DeMaria v. RBNB 20 Owner, LLC, 129 Ad3d 623;

Second Dept.

Subcontracting Out The Work

Second Dept. 2022.No §200 Liability. Entity subcontracting its work to another entity & not supervising such work. As Systems subcontracted its work to Electric & where Systems had no workforce of its own & not supervise Electric’s work, System entitled to summary judgment on §200 claim. Murphy v. 80 Pine, LLC, 208 AD3d 492; Second Dept. 2011.

§200 Dismissed. Subcontractor no control over injury producing work. Plaintiff working at high school installing bathroom partitions. 2 tabletops that were to be installed at the school’s science labs fell on plaintiff’s foot. Tabletops stored in a hallway leaning against a wall. Defendant Irwin Contracting was GC & entered into a contract with plaintiff’s employer, H&E, to install furniture & fixtures in the labs. H&E subcontracted to defendant TKO to unload the fixtures & furniture & store those items & install in the labs. Summary judgment to H&E as it was a subcontractor that did not control injury producing work. Posa v. Copiague  Pub. School Dist., 84 AD3d 770;

April 19. New York. Subcontractor Remains Statutory Agent & Liable Under 240(1) Even Where Delegated Out Contracted Work Sub-subcontractor.

Comment.

As one Court stated,

Evidence subcontractor formerly delegated requisite supervision & control to another subcontractor is cited as forming part of the proof the first subcontractor formerly possessed such authority & may justify imposing Labor Law liability on the first subcontractor as statutory agent of GC.

Subcontractor cannot escape 240(1) & 241(6) liability when subcontracting out its work to another subcontractor. Once a subcontractor is delegated authority to perform work, it remains agent of GC or owner even when subcontracting out the work.

“While Bayview claimed it did not coordinate & supervise the work does not establish it lacked the authority to do so. Whether it actually supervised the work is irrelevant.”

First Dept.

First Dept. 2025. As Subcontractor Sub-Subcontracting Out Work Retained Authority to Supervise Work, Subcontractor Was Labor Law Defendant Under 240(1) & 241(6).  

Accident occurred at World Trade Center Oculus Project.  Structure Tone was GC in charge of overseeing the pre-buildouts of various retail stores in the Oculus. Structure Tone subcontracted certain drywall work to CSS. After the pre-build-out of an Apple Store was completed in March of 2016, it was turned over to Apple’s general contractor, Sajo, to oversee the store’s build-out and finish work.  Sajo subcontracted HVAC work to PAI, which sub-subcontracted a portion of the work to PB Vent. Plaintiff, a sheet metal worker employed by PB Vent, was installing ductwork in the Apple Store. He encountered a dolly, loaded with sheets of Masonite & attempted to move it out of the way of where he needed to work.  The dolly moved 1-2 feet, when it suddenly stopped & tipped over onto plaintiff.  Photos showed the dolly’s wheels were cracked & had embedded nail. 

PAI was held to be a proper Labor Law defendant as PAI had authority to supervise the HVAC work & demonstrated its authority by subcontracting a portion of the HVAC work to plaintiff’s employer.   Hernandez v. Port Auth. of NY & NJ, 238 AD3d 408;

  First Dept. 2022. Issue of Fact. Contradicting Evidence. While defendants produced evidence that they did not control plaintiff’s work, plaintiff offered deposition testimony, contracts documents, showing defendants delegated authority to control activity bringing about accident. Moore v. URS Corp., 209 AD3d 438; 

First Dept. 2021. Issue of fact raised whether Melcara Corp. was agent of premises owner. Melcara had responsibility to retain contractors to perform the work & for site safety. Melcara had authority to give directives to AAD’s designated representatives & the injury producing work was within the scope of work Melcara delegated to AAD. Goya v. Longwood Hous. Dev. Fund Co., Inc., 192 AD3d 581;  

First Dept. 2015. Liability under 241(6) as it was statutory agent. Subcontractor’s work created dangerous condition. Subcontractor who subcontracted out its work; furnished no workers & came to site once a week or once every 2 weeks, had no notice of hazardous condition 10 inch sprinkler pipe posing site hazard.Plaintiff fell over 10-inch sprinkler pipe at construction site. Plaintiff testified pipe was residual waste from his sprinkler work. RBNB 20, building owner, retained NB 20 as contractor on project. RBNB & NB 20 retained defendant Newmark as “construction manager.” NB 20 subcontracted electrical work to defendant Forest, drywall & carpentry work to defendant Linden & fire protection work to plaintiff’s employer. Linden sub-subcontracted taping & spackling work to Tower & sheetrocking & carpentry work to NY Drywall. Plaintiff testified spacklers employed by Tower created the condition by knocking over disposal bucket in which he had placed the pipe. Linden subcontracted out all its work & furnished no workers to perform work. Linden’s presence at site was one hour visits by its President once a week or every other week. However, as Linden’s subcontract with NB 20 delegated it authority to supervise all work drywall work, & as plaintiff’s deposition testimony pipe on the floor caused by employees of Linden’s spackling sub-subcontractors Tower, Linden subject to liability as statutory agent under 241(6). DeMaria v. RBNB 20 Owner, LLC, 129 AD3d 623;

First Dept. 2011. Issue of Fact. Subcontractors have been held to be statutory agents of general contractors in situations in which provisions of subcontracts explicitly granted supervisory authority & where subcontractors actually exercised supervisory authority. Evidence subcontractor formerly delegated requisite supervision & control to another subcontractor is cited as forming part of the proof the first subcontractor formerly possessed such authority & may justify imposing Labor Law liability on the first subcontractor as statutory agent of GC. Bayview states there was no written contract between it & Bridgehampton Construction from which terms of Bayview’s authority may be established. There was a written proposal from Bayview naming the work & its price & Bayview’s written subcontract with R&L Carpentry, which provided R&L agreed to provide al labor, tools, equipment & supervision to execute framing work. Bayview not entitled to summary judgment. Finder of fact could find that when Bayview undertook responsibility for framing work, & then subcontracted out that work, specifying subcontract included responsibility to supervise the work, it acknowledged that the job it was subcontracting out included supervision of framing work. While Bayview claimed it did not coordinate & supervise the work does not establish it lacked the authority to do so. Whether it actually supervised the work is irrelevant. Nascimento v. Bridgehampton Constr. Corp., 86 AD3d 189;

First Dept. 2008. HHS hired to install AC units in a building & although HHS subcontracted duct work to plaintiff’s employer, there are no triable issues as to whether it was a contractor under 240(1), with the nondelegable liability for injuries arising within scope of contracted work, including those suffered by plaintiff. Timmons v. Lynx Contr. Corp., 49 AD3d 382;

Second Dept.

Second Dept. 2022.  Plaintiff stepped on unsecured wooden beam , which then flipped and fell out from underneath him, causing a fall of 15 feet to floor below. Defendants submitted deposition transcript of Mr. Roaleg, a representative of South Ocean Custom Framing Corp. He testified that he was not present at the site in the 2-3 weeks prior to the accident. South Ocean was statutory agent of the owner or general contractor as it had authority to supervise & control the particular work in which plaintiff was engaged at the time of accident. Once South Ocean became such an agent, it could not escape liability by delegating its work to another entity. Mogrovejo v. HG Hous. Dev. Fund Co., 207 AD3d 457.

Second Dept. 2008. Home Improvement, as prime contractor for exterior of the house, liable under 240(1), as it had authority to supervise and control work plaintiff was engaged in at time of accident. Once Home Improvement became an agent of the owner, it could not escape liability by delegating its work to another entity. Tomyuk v. Junefield Assoc., 57 AD3d 518;

Second Dept. 2008. Prime contractor hired for specific project is subject to 240(1) liability as statutory agent of owner of GC only if it was delegated the injury producing work & was thus responsible for the work giving rise to duties referred to 240(1). Once an entity becomes agent under Labor Law it cannot escape liability by delegating the work to another entity. Here, Maric Plumbing, the prime plumbing contractor for the subject job, had authority to supervise and control the work being performed by plaintiff at the time of the accident. Plaintiff worked for company subcontracted by Maric to perform plumbing work at work site & was engaged in such work when accident occurred. Plaintiff fell through floor opening, falling 15 feet to basement. No barricades around floor opening. Maric liable under 240(1). Nasuro v. PI Assoc., LLC, 49 AD3d 829;

April 19. New York. Common Law Negligence Claim Dismissed. General Contractor’s Work Permit Established Not Commence Work at Premises Until After Date of The Accident.

Hidalgo v. David Contr. NY, Inc., 2026 NY Slip Op 02251, decided April 15, 2026, Second Dept. Plaintiff tripped over a hose on the sidewalk adjacent to the premises at 50-34 69^th Street, in Queens. At the time of the accident, construction work was ongoing at the premises. DHC Contracting was one of the GCs for the project.

It was held DHC Contracting established, prima facie, that it did not cause or create the dangerous condition of the hose on the sidewalk. To establish this, DHC Contracting submitted, among other things, a work permit issued to it for the construction project. Such work permit established that DHC Contracting did not begin work at the subject premises until after the date of plaintiff’s accident. Action dismissed against DHC Contracting.

Comment. Importance of obtaining work permits as such documents may offer defenses as to when & where work was performed on a construction project.    

April 19. New York. Protective Order Granted as to Insurance Company’s Documents in Dispute Over Whether Entity Was Additional Insured Under Insurer’s Policy. CPLR 3101 & 3103.

Lannon v. Everest Nat. Ins. Co., 2026 NY Slip Op 02259, decided April 15, 20236, Second Dept. Plaintiff allegedly suffered accident in the course of work as a carpenter for nonparty McM Homes, subcontractor hired by defendant Bay Creek Builders, the GC. Everest National Insurance issued a general liability policy to McM Homes in effect at time of plaintiff’s accident. Plaintiff commenced the instant action alleging McM Homes was to add Bay Creek as additional insured. Plaintiff moved to compel Everest to produce the underwriting file for the subject policy & the full, unredacted “notes report” for any and all claims involving the plaintiff.

Everest cross-moved for a protective order as to such records. Pursuant to CPLR 3101(a), “a court may issue a protective order denying, limiting, conditioning or regulating the use of any disclosure device to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.” Decision cited the rule that where “insurance policy is unambiguous, extrinsic evidence of its meaning is not considered.” It was held, “plaintiff failed to demonstrate that disclosure of the underwriting file will result in disclosure of relevant evidence or that plaintiff’s demand was reasonably calculated to lead to the discovery of information bearing on his cause of action.” Decision cited Orange & Rockland Utils., Inc. v. County of Rockland, 206 AD3d 68 (2^nd Dept. 2022). Also, Everest demonstrated the redacted portions of the “notes report” were privileged.

April 18. New York. Labor Law §241(6) Action Alleging Industrial Code 23-1.7(a)(1). Plaintiff Struck by Falling Bricks at Work Site. Such Industrial Code Not Apply Where Accident Area Not Normally Exposed to Falling Materials or Objects.

Romero v. Evergreen Gardens II, LLC, 2026 NY Slip OP 02295, decided April 15, 2026, Second Dept. While working at construction site, plaintiff was struck in the head by 2 falling bricks. Industrial Code 23-1.7(a)(1) was dismissed as plaintiff failed to establish he was standing in an area normally exposed to falling material or objects at the time of the accident.

23-1.7. Protection from general hazards.

(a) Overhead hazards.

(1) Every place where persons are required to work or pass that is normally exposed to falling material or objects shall be provided with suitable overhead protection. Such overhead protection shall consist of tightly laid sound planks at least 2 inches thick full size, tightly laid three-quarter inch exterior grade plywood or other material of equivalent strength. Such overhead protection shall be provided with a supporting structure capable of supporting a loading of 100 pounds per square foot.

See other Second Dept. decisions addressing §1.7(a)(1) below.   

Second Dept. 2024. 23-1.7(a) Dismissed. Fire extinguisher falling from beam. While backfilling the foundation at a construction site, a fire extinguisher that was resting unsecured on a beam 20 feet above plaintiff, fell, striking plaintiff in the head. A cause of action alleging a violation of 241(6) predicated upon a violation of 23-1.7(a) requires plaintiff to demonstrate the area in which plaintiff was injured was one where workers normally exposed to falling objects. Defendants established the area here was not normally exposed to falling material or objects within meaning of 23-1.7(a). Flores v. Fort Green Homes, LLC, 227 AD3d 672;

Second Dept. 2023. 23-1.7(a) Dismissed. Plaintiff was laborer tasked with clearing debris from first floor of building being demolished. Ductwork attached to first floor ceiling became detached on one end and fell 18 inches, causing dirt and pebbles to fall into plaintiff’s left eye. 23-1.7(a) inapplicable as accident area not normally exposed to falling material or objects within the meaning of the code.   Cruz v. 451 Lexington Realty, LLC, 218 AD3d 733;

Second Dept. 2023. 23-1.7(a) Dismissed. Demolition Site. Construction worker was struck in the head by a piece of wood during demolition of a house. A piece of wood became dislodged from a wall. Defendants established work site was not a place normally exposed to falling material or objects. Reyes v. Sligo Constr. Corp., 214 AD3d 1014; 

Second Dept. 2020.Plaintiff failed to demonstrate working area was normally exposed to falling material or objects. While plaintiff was walking through a basement where he was working, a piece of plywood that had just been pried off the ceiling by another worker struck plaintiff. Crichigno v. Pacific Park 550 Vanderbilt, 186 AD3d 664; 

Second Dept. 2017. 23-1.7(a) Dismissed. Falling of exhibition booths. While plaintiff performing

electrical work at Javits Center, 2 panels comprising the walls of exhibition booth fell on him.  Honeyman v. Curiosity Works, Inc., 154 AD3d 820;

Second Dept. 2016. 23-1.7(a)(1) Dismissed. Top of 10-foot high piece of cold board that plaintiff was fitting into a wall frame of a building under construction, snapped forward, coming into contact with brim of plaintiff’s hard hat. No evidence such area was normally exposed to falling objects. Vatavuk v. Genting NY, LLC, 142 AD3d 989;  

Second Dept. 2013. 23-1.7(a) Dismissed. Worker at school construction site was standing on the ground outside the school when he was struck by a piece of sheetrock falling from third floor of school building. Defendants established accident area not normally exposed to falling materials or objects. Moncayo v. Curtis Partition Corp., 106 AD3d 963;

Second Dept. 2010. 23-1.7 Dismissed. Plaintiff, while standing outside a construction project 10-18 feet away from a dumpster was struck by a bag of construction debris tossed from roof. Fried v. Always Green, LLC, 77 AD3d 788;

Second Dept. 2009. 23-1.7(a)(1) Dismissed. 2 Prior Falling Backets Not Sufficient For Violation. Plaintiff injured while installing a drainpipe on exterior of 6-story apartment building. A metal bracket which was attached near the top of building became dislodged, striking plaintiff. There was no overhead protection. Held that although 2 other brackets fell from building prior to plaintiff’s accident, was not a sufficient basis to find work site was normally exposed to falling brackets.  Marin v. AP-Amsterdam 1661 Park LLC, 60 AD3d 824;   

Second Dept. 2007.23-1.7(a) Dismissed. Section of ceiling collapsed. While performing interior demolition work, piece of ceiling collapsed, striking plaintiff. 23-1.7(a) dismissed as area not area where workers normally exposed to falling objects.Mercado v. Brooklyn, 38 AD3d 732;

Second Dept. 2006.23-1.7(a)(1) Dismissed. Plaintiff struck by steel beam being removed from a partially demolished building.  Not struck in area where workers were normally exposed to falling objects. Portillo v. Roby Anne Dev., 32 AD3d 421;

April 18. New York. Plaintiff Struck by Falling Bricks at Construction Site. Plaintiff’s Summary Judgment Motion Seeking Labor Law §240(1) Violation Denied. In Falling Object Case, Plaintiff’s Burden to Show Such Object Was Required to be Secured to Establish Prima Facie Case For Summary Judgment.

Romero v. Evergreen Gardens II, LLC, 2026 NY Slip OP 02295 (2^nd Dept. 2026), 2 falling bricks struck plaintiff in the head while working for Reliable Masonry Corp., a subcontractor at the premises owned by Evergreen. Appellate Court cited the rule as to “falling object” liability under §240(1), “that at the time the object fell, it was being hoisted or secured, or, the falling object required securing for the purposes of the undertaking.

Plaintiff denied imposition of §240(1) liability as issue of fact as to what caused the bricks to fall & whether a securing device enumerated in §240(1) was required to prevent such fall.

Comment. While plaintiff in Romero was struck by two falling bricks, plaintiff’s §240(1) motion denied because plaintiff failed to show whether those bricks required securing. Plaintiff likely asserted, “of course, such bricks required securing as they fell.” But what if a co-worker was disposing of the bricks & threw them off the building. Such intentional act would likely be outside the protection of §240(1) because of a lack of foreseeability.

Plaintiff has to show in §240(1) claim involving a falling object, such falling object should have been secured.       

Second Dept. 2011. Falling Brick. Plaintiff not know where brick came from. Plaintiff’s Motion on 240(1) Denied. Plaintiff was mason employed by company renovating a building previously used as a church. While plaintiff was inside building on ground floor next to a window that was removed, struck by a brick that fell from “out of nowhere.” Plaintiff failed to eliminate all issues of fact as to whether the brick striking him was object that required securing for the purposes of the undertaking.  Gonzalez v. TJM Constr. Corp., 87 AD3d 610;

April 18. New York. As Contractual Indemnification Agreement Was a Separate Agreement, It Was Invalid as No Consideration Given For Such Agreement & Agreement Not Refer to Consideration in Earlier Agreement Between The Parties. Past Consideration is No Consideration. Also, Promise to Perform Existing Obligation Not Valid Consideration.

Reyes v. Hite Constr., Inc., 2026 Slip Op 02351, decided April 16, 2026, First Dept. Third party defendant Everest Scaffolding moved to dismiss the claim of third-party plaintiff, Hite Construction, for contractual indemnification. It was held Everest entitled to summary judgment dismissing the contractual indemnification claim because such indemnification agreement in Hite’s favor, lacked consideration. Such indemnification agreement was entered into in 2016.

In 2015, the same parties entered into a separate agreement for Everest to obtain an initial permit & furnish, install and remove scaffolds for the subject construction project, during which plaintiff was injured. “Hite’s full lump sum payment to Everest in 2015 in connection with that agreement could not support the 2016 indemnification agreement as past consideration is no consideration at common law,” citing Kastil v. Carro, 145 AD2d 388 (1^st Dept. 1988).

Appellate Court also held, “statutory exception for consideration that is past or executed under General Obligations Law §5-1105 not apply to the 2016 agreement as that agreement failed to recite any past or executed consideration in the writing.”

Also, Hite’s rental payments for the scaffolds leased on a month to moth basis under the 2015 agreement did not serve as consideration for the 2016 indemnity agreement. “A promise to perform existing obligation is not valid consideration,” citing Zheng v. City of NY, 93 AD3d 510 (1^st Dept. 2012).   

 Entity Seeking Indemnification Not Enter Into Contract From Entity From Whom It Was Seeking Indemnification & Proffered No Consideration.

First Dept. 2022. Plaintiff tripped over horizontal cross bracing bar affixed to a scaffold, that was 14 inches above the ground, while attempting to step over it.  Titanium was hired by Structure Tone. Court denied Titanium’s contractual indemnification against Commodore and granted Commodore’s motion dismissing that claim. Indemnification agreement lacked consideration as Commodore was hired by Structure Tone. Peranzo v. WFP Tower D Co., LP, 201 AD3d 486;

First Dept. 2019. There was nothing in the agreements suggesting St. Valentine was intended to be a named indemnitee and St. Valentine failed to establish it proffered any consideration in order to be considered a party to the agreements. Benitez v. Church of St. Valentine, 171 AD3d 593;

April 18. New York. First Dept. Holding That Mini Dumpster Falling Over at Construction Site May Have Violated §240(1) Contradicts 2022 Decisions That Similar Conditions Constituted a Routine Workplace Risk. §240(1) Claim Should Have Been Dismissed.

Pina v. City of NY, 2026 NY Slip Op 02348, decided April 16, 2026, First Dept. Plaintiff testified the mini dumpster which tipped over & fell on him, was filled with concrete debris & too heavy for plaintiff to straighten after it tilted. Appellate Court, denying defendant’s motion seeking dismissal of §240(1) claim, held, “despite the fact that the mini dumpster was on the same level as plaintiff & stood only at chest height, it could still have posed a significant elevation-related hazard, depending on its weight & the force it could generate.”

Appellate decision cited Court of Appeals decision, Wilinski v. 334 E. 92^nd Hous. Dev. Fund Corp.,18 NY3d 1 (2011). In Wilinski, pipes stored at construction site fell over, striking plaintiff. While falling pipes were on the same level as plaintiff when they fell over, the weight of the pipes generated a significant force of gravity when striking plaintiff, imposing a §240(1) violation.

Pipes being stored at work site are usually secured. It is not uncommon for excess debris to be placed in a mini dumpster, causing debris to either fall out of the dumpster or cause a mini-dumpster to lean or tilt. As it is debris, it is not securely placed in a mini dumpster, but rather, tossed into such dumpster. There is no obligation to secure debris in a mini dumpster. While there is a duty to secure pipes to be used at a site, not garbage in a dumpster.

Invariably, there are instances at construction sites where laborers cannot remove a mini dumpster at the moment capacity is reached. An overloaded mini-dumpster does not require securing.  It requires emptying. A routine workplace risk according to First Dept. precedent below, outside protection of §240(1).   

First Dept. 2022.Falling Gang Box. 240(1) dismissed. The gang box that fell on plaintiff was not a material requiring hoisting or securing. The struts of the gang box, which were missing, did not constitute a safety device contemplated by 240(1) as they were not meant to lessen a gravity related risk related to securing of a large load or hoisting of construction materials. Gang box constituted a routine workplace risk. Cotroneo v. Van Wagner Sign Erectors, LLC, 210 AD3d 421; First Dept. 2022.

Lifting Gang Box Lid. Plaintiff was standing at the same level as the gang box when the lid fell.  The lifting of the gang box posed the usual and ordinary dangers of a construction site. Ormsbee v. Time Warner Realty Inc., 203 ASD3d 630;

April 17. New York. Additional Insured Coverage. Insurer For Named Insured Had Knowledge of Facts Establishing Reasonable Possibility of Coverage For Additional Insured. Matters Not That Named Insured Not Sued in Underlying Action.

Certain Underwriters at Lloyd’s, London v. Southwest Mar. & Gen. Ins. Co., 2026 NY Slip Op 02329, decided April 16, 2026, First Dept. Plaintiff brought action seeking declaration that defendant had a duty to defend plaintiff’s named insured, Arsenal, in underlying action. Plaintiffs in the underlying action allege they fell from a scaffold. Defendant’s named insured, JGR Services, contracted with Arsenal to perform work at the site. Third-party complaint alleges JGR caused such accident.

It was held defendant had a duty to defend Arsenal in the underlying action as Arsenal was an additional insured on JGR’s policy with Southwest. “Evidence supports the court’s conclusion that defendant Southwest had actual knowledge of facts establishing a reasonable possibility of coverage, thereby requiring it to provide a defense.”

While Southwest’s named insured is not a defendant in the underlying action, defendant Southwest cannot simply ignore the facts known to it that create a reasonable possibility of coverage.  

Comment. Here, while the decision does not provide such information, JGR may have been the plaintiff’s employer. As such employer, plaintiffs could not bring an action against JGR if JGR provided them Workers’ Compensation Coverage. Or, if not the employer, plaintiff may simply not have named JGR as a defendant.

For additional insured coverage to be triggered, it does not matter that the named insured is not a named defendant in the Complaint. Additional insured has the same coverage rights as the named insured. Southwest’s position that because JGR was not a named defendant, it owed no coverage to the additional insured Arsenal on JGR’s policy, incorrect.   

April 17. New York. §240(1) Not Dismissed. Plaintiff Repairing Broken Axle of Farm Equipment When It Fell on Top of Plaintiff. Court of Appeals’ Stoneham v. Barsuk, Inc., 41 NY 3d 217 Not Apply as Repair of Axle Not Regular Maintenance.

Venne v. Niagara Farms LLC, 2026 NY Slip Op 50504(U), decided April 8, 2026, Hon. Peter Allen Weinmann, Supreme Court, Erie County. Plaintiff, an employee of the farm Cornerstone Orchards, was working underneath a 3000 pound farming equipment known as an Orchard Sprayer, when it fell on him. The Orchard Sprayer was described in the decision as the size of a large riding lawnmower or even a small all -terrain vehicle. It is towed behind a tractor & used to spray fruit trees or fields with fungicide or pesticide. Here, the Orchard Sprayer had a broken axle & plaintiff was repairing it when the accident occurred. The Orchard Sprayer was propped up on a brick & 4 x 4 piece of wood to allow access to the undercarriage.  

In the §240(1) claim, plaintiff asserted the Orchard Sprayer was a “structure” and the falling object’s height differential was immaterial.  

Defendants cited the 2023 Court of Appeals decision, Stoneham v. Barsuk, Inc., 41 NY 3d 217, where the plaintiff was a mechanic lying beneath a lifted trailer while working on a faulty air brake system. During such work, the trailer fell on him. Court of Appeals affirmed the Fourth Dept’s dismissal of the action because plaintiff was engaged in ordinary vehicle repair, which is not a protected activity under §240(1). Here, it was held Stoneham not apply here because repair of the axle was not ordinary or regular maintenance, “it was decidedly non-routine repair.”

As to whether the Orchard Sprayer constituted a “structure” in the context of §240(1), the decision did not appear to address this issue. However, the decision cited Gordon v. Eastern Railway,181 AD2d 990 (4^th Dept. 1992), where it was held a railway was responsible for plaintiff’s accident while working on a rail car. That decision was affirmed by the Court of Appeals in 1993 at 82 NY2d 555.

Court of Appeals Court of Appeals. 2023. Work completed during normal manufacturing process is within protection of 240(1). Activity in which plaintiff was engaged, ordinary vehicle repair, is not covered under 240(1). Plaintiff was mechanic fixing brakes on trailer truck. If 240(1) applied here, car owners would be absolutely liable for gravity-related injuries occurring when mechanic working on their car. Stoneham v. Joseph Barsuk, Inc., 41 NY3d 217;       

April 16. New York. Kings County Motion Court Denied Defendants’ Motion to Amend Their Answer to Include Affirmative Defenses as to Fraud. Motion Court Relied on Linares v. City of NY, 233 AD3d 479 (1^st Dept. 2024).

Chibashvili v. Gabrielli Truck Leasing, LLC, 2026 NY Slip Op 31452(U), decided April 6, 2026, Hon. Wavny Toussaint, Supreme Court, Kings County. Plaintiff’s vehicle was struck by defendants’ vehicle while proceeding through an intersection in NY County. Defendants moved pursuant to CPLR §3025(b) for leave to amend their Answer to assert new affirmative defenses which would allow them to pursue discovery & present evidence that plaintiff’s action is based, in part, on unnecessary medical treatment & fabricated medical records.

Defendants pointed to federal lawsuit brought in Eastern District of NY alleging a number of medical provider participated in years-long scheme to defraud insurers as a racketeering enterprise. Some medical providers named in that action also treated plaintiff.

Defendants asserted the issue here is not whether plaintiff engaged in fraud, but that plaintiff’s doctor’s have stated in medical records that plaintiff underwent medical procedures that Plaintiff says never happened. Plaintiff testified he was never treated at South Brooklyn Hospital & never received 2 cervical epidural injections administered by his treating physician Dr. Avanesov, as stated in medical records. While medical records indicated months of treatment before plaintiff underwent spinal fusion surgery, plaintiff testified that such surgery took place a week after his first examination with Dr. Avanesov.

To assert affirmative defense of fraud, defendants must plead the elements of a fraud claim with particularity under CPLR §3106(b), namely a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the defendants & damages. Also, the circumstances constituting the fraud shall be stated in detail.

Motion Court noted no allegations in the Eastern District case of wrongdoing by plaintiff or that in this action plaintiff engaged in fraudulent conduct. Dr. Avanesov, plaintiff’s treating physician, is not named in Eastern District action & no evidence of fraudulent behavior by Dr. Avanesov or plaintiff’s other medical providers. Court found “the discrepancy in plaintiff’s deposition testimony insufficient to support defendants argument that the medical records do not accurately reflect plaintiff’s treatment.”

Motion Court further held, “To the extent that any of defendants’ fraud-based assertions are to be pursued at trial, they are matters for a trial judge to decide via motions in limine.” Held the defendants’ motion denied as defendants only offered general, conclusory and speculative allegations of fraud. Also Eastern District action constitutes “merely unproven allegations and not facts sufficient to support” the requested affirmative defenses. Cited Linares v. City of NY, 233 AD3d 479 (1^st Dept. 2024).       

April 16. New York. As Evidence Was Offered Contradicting Plaintiff’s Version of How Elevated Fall Occurred, Motion Court Erred Imposing §240(1) Liability.

Hernandez v. 10 W. 66^th St. Corp., 2026 NY Slip Op 31446(U), decided March 27, 2026, Hon. Devin Cohen, Supreme Court, Kings County. Plaintiff, an employee of Design Developers Group (DDG), suffered accident while working at construction site at 10 West 66^th Street, NY County. Yates Restoration hired by 10 West for façade work. GC was Extel Development.

Plaintiff was responsible for carrying materials or equipment to other workers on a scaffold. As plaintiff descended from the 3^rd floor to the 2^nd floor of the scaffold, while carrying a wound spool of electrical cable on his shoulder, handrail on the scaffold “broke off,” causing a fall. Plaintiff’s request for assistance in carrying the spool of electrical cable because of the weight of the spool, was denied by his supervisor. Plaintiff offered a “photo of scaffold stairs missing a handrail.” Plaintiff testified female EMS responder took such photo on her phone & that he took a picture of the photo on her phone while in the ambulance.

Plaintiff claimed the handrail is not in the picture because “the one in charge picked up the bar and put in where the handle is.” The decision notes that plaintiff did not witness this happen but rather was told that it happened by the same EMS responder who purportedly took the photo.

Owner of scaffolding company, Mr. Susi, testified every scaffold staircase would be installed with 2 handrails & handrails would have “set screws to hold them in place.” Removal of a handrail required two workers to lift simultaneously on both sides. Scaffolding company was not called to come to the site to inspect the stairs or re-install the handrail post-accident

While project supervisor observed plaintiff lying on the ground, he observed no repairs, reinstallation, or adjustments to any handrail on the scaffold’s staircase.

Motion Court held, “Both the failure of the temporary staircase (scaffold) & being pulled down stairs while transporting a heavy load due to inadequate hoisting equipment constitutes violation of §240(1).” Decision further stated, “Where there are multiple plausible accounts of how plaintiff’s accident occurred, but each present a scenario where the plaintiff prevails on his §240(1) claim, summary judgment is appropriate.”

Comment. Motion Court granted summary judgment because of the “failure of the temporary staircase.” However, plaintiff’s deposition testimony the accident resulted from “the handrail broke off,” contradicted by project supervisor’s affidavit of observing no repairs, reinstallation, or adjustments to any handrail on the scaffold’s staircase, immediately after the accident. Also, the scaffolding company installing subject scaffold was not called to the site post-accident to inspect the scaffold stairs or re-install the handrail.

As such, there is evidence from two different sources indicating the accident did not occur from a handrail “breaking off.” While the Motion court concluded there was a “failure of the temporary staircase,” such evidence raises an issue of fact whether such conclusion is correct.

In support of the summary judgment motion, plaintiff testified that while in the ambulance, he took out his phone, taking a photo of the EMS worker’s phone which he claimed contained a photo depicting the railing post-accident. Plaintiff testified the EMS worker took the photo while at the accident site. However, no testimony or affidavit from the EMS worker of such photograph was offered. To be admissible, the EMS worker had to testify or submit an affidavit stating, “I took this photo of the railing at the accident scene right after the accident.” Absent such testimony or affidavit, no corroboration EMS worker took the photo at the scene. Decision mentioned no time stamps.

Such evidence contradicts plaintiff’s version of the accident. Motion Court was wrong when it held, Where there are multiple plausible accounts of how plaintiff’s accident occurred, but each present a scenario where the plaintiff prevails on his §240(1) claim, summary judgment is appropriate.” There is evidence that there was nothing wrong with the scaffold. Plaintiff could have mis-stepped or lost his balance. Such events are outside protection of §240(1). How is there not an issue of fact where project supervisor stated in an affidavit he observed nothing wrong with the railing immediately after the accident? Appellate Court review warranted.

April 16. New York. Scaffold Company. Sidewalk Defect. Pedestrian Fall. Daily Log Records Raised Issue of Fact.   

Chang v. COA 200 E. 34^th, LLC, 2026 NY Slip Op 31430(U), decided April 1, 2026, Hon. Leslie Stroth, Supreme Court, NY County. Plaintiff alleged that at 7:30 pm on September 8, 2022, she tripped on the portion of sidewalk located at the corner of a tree well, causing injury. Accident occurred next to construction site located at 200 East 34^th Street, NY County. Premises owned by defendant COA. In response to plaintiff’s action, COA brought third-party action against Core Scaffold, subcontractor hired by construction project’s construction manager, Noble Construction.

Core Scaffold hired to install hoist, barriers, sidewalk shed, sidewalk bridge & roof protection for neighboring property. As property owner, COA, not in contractual privity with Core Scaffold, as Core Scaffold hired by Noble Construction. As such, claims for contractual indemnification & breach of contract dismissed. Issue was whether Core Scaffold liable for common law negligence.

Plaintiff alleged the defect was height differential between the dirt in the tree well & sidewalk. Core Scaffold asserted the sidewalk shed it installed touched no part of the alleged defect. Core Scaffold’s President, Mr. Gazheli, submitted affidavit stating Core Scaffold performed no work on the sidewalk or tree well, that it was not hired to perform work to the sidewalk or tree well, & had no duty to inspect, repair, or maintain the sidewalk or tree well.

Gazheli affidavit further stated sidewalk shed installed more than 2 years prior to plaintiff’s accident. COA argued Core Scaffold was hired to install a hoist, barriers & sidewalk bridge in the same area where plaintiff’s accident occurred & Core Scaffold required to maintain sidewalk in safe condition.

Motion Court noted daily logs showed Core Scaffold was continuing to perform work, including the removal & installation of a new sidewalk shed up until December 14, 2022. As such, court held such daily logs raised issue of fact whether Core Scaffold’s work caused plaintiff’s accident.

Comment. Accident occurred on Sept. 8, 2022. Daily logs show Core Scaffold installed & removed another sidewalk shed by December 14, 2022. Was the new sidewalk shed installed after the accident on Sept. 8, 2022 & was it installed at the same location or a different location at the premises? Questions of fact. Importance of obtaining daily log records during discovery stage.       

April 15. New York. Indemnification. Project Development Manager’s Negligence Could Not be Imputed to Premises Owner as Project Development Manager Not an Indemnitee Under Indemnification Clause.

Zurich Am. Ins. Co. v. 56^th & Park (NY) Owner, LLC, 2026 NY Slip OP 02234, decided April 14, 2026, First Dept. The agreement provided that CGI was required to indemnify the “premises owner, 56^th and Park LLC, its related or affiliated companies, subsidiaries, partnerships, joint ventures, shareholders, members, donors, lenders, investors, officers, directors, trustees and employees at every tier (Indemnitees) from & against all losses except to the extent caused by the Indemnitees’ active negligence or willful misconduct.” 56^th and Park was not actively engaged in the construction work and it did not supervise or direct the work of defendant McGraw Hudson Construction who was hired as development manager to supervise the design & construction of a building. As McGraw’s work was not included in any of the categories of indemnitees defined in the contract, the alleged negligence on its part could not be imputed to premises owner 56^th and Park for purposes of indemnification.     

April 14. New York. Labor Law §240(1) Dismissed. Accident Not Arise From Plaintiff Performing Construction Work at a Building or Structure. Plaintiff Inspecting a Product His Employer Sold to Subcontractor.

Lardiere v. Site 6 Dsa Owner LLC, 2026 NY Slip Op 02204, decided April 14, 2026, First Dept. Plaintiff was a salesman visiting a construction site where he had brokered the sale of air handlers to Peepels, a HVAC subcontractor at the site. Plaintiff had no experience or knowledge in HVAC installation & played no constriction-related role in the installation of air handler units. Also, plaintiff’s employer, Gil-Bar, was not engaged by contract to carry out a specific part of the construction project. Gil-Bar was not a company performing construction, demolition, or excavation & had no laborers on staff.

Even if plaintiff was performing an inspection of construction site, he did not perform that inspection as an employee of a contractor tasked with enumerated activity within §240(1). Gil-Bar’s role as to the HVAC system was solely as to the salesman of component equipment that Peepels would install. §240(1) claim dismissed.       

Comment. For §240(1) to apply, accident must occur during the erection, demolition, repairing, altering, painting, cleaning or pointing of a building.  If a worker suffers a fall from elevated height while not engaged in such activities, §240(1) dismissed. Other cases addressing this issue are below.

Barbu v. Doyle, 246 AD3d 693 (1^st Dept. 2026). Plaintiff fell from a pallet rack inside of a warehouse portion of building owned by defendant Connan Land Co. & leased to Par 4 Property Mgmt. Par 4 was owned by plaintiff’s brother-in-law, defendant Doyle. Plaintiff went to the warehouse to retrieve personal items he had stored at the warehouse, including tools & construction materials. Plaintiff testified he climbed on top of a pallet rack to look for his property. He fell off the pallet rack, falling 10 feet to the ground.

§240(1) dismissed as plaintiff not hired to perform work at the premises & not acting as an employee when he went to retrieve his property from the warehouse. “In order to invoke the protections of the Labor Law & to come within special class of workers for whose benefit liability is imposed upon contractors, owners & their agents, plaintiff must demonstrate that he or she was permitted or suffered to work on a building or structure and was hired by someone, be it an owner, contractor or their agent.”

Conducting Inspection

Buckley v. Hearst Corp., 2026 NY Slip Op 00006, decided Jan.6, 2025, First Dept. Plaintiff, an ironworker’s foreman, injured while assisting a consulting engineer conducting inspection of exterior façade remediation work. At the time of inspection, plaintiff’s employer had already completed remediation work. Plaintiff & inspector used a motorized scaffold to ascend the building to examine the facade. When such scaffold reached the 18^th floor, its primary braking system failed & it began to descend under the control of a second braking system. As it descended, scaffold struck a skylight on the building, causing injury.

Appellate Court dismissed Labor Law §240(1) cause of action as plaintiff was not engaged in work covered by 240(1). Rather, plaintiff was present to answer questions as the consulting engineer hired by building owner inspected the completed façade work. That such inspection might have revealed a need for additional work to complete the contract did not change the analysis, since additional work would be completed at a later date after plaintiff’s role was completed.   

Injured Delivering a Machine. Worker Not Engaged in Construction Work When Injured.

Russell v. Lenox Hill Hospital, 2026 NY Slip Op 00216, decided January 15, 2026, First Dept. Plaintiff, employee of non-party delivery service, which Rad Source hired to deliver a blood irradiator machine to Lenox Hill Hospital. Upon arriving at the hospital, plaintiff & 2 helpers were unloading the machine when such machine rolled toward plaintiff, trapping his leg, causing plaintiff to fall backwards off the truck.  

§240(1) was dismissed as plaintiff, who was delivering a machine, was not a covered worker engaging in a protected activity under §240(1). The decision noted that although new conduit lines and electrical panels were performed inside the hospital to accommodate the machine, such work was completed before the delivery & not involve plaintiff or his employer & not necessary and incidental to protected activity.

See the cases below also dismissing Labor Law 240(1) cause of action where injured worker was outside protection of Labor Law 240(1).       

Worker Injured Replacing Billboard Advertisement. Outside Protection of Labor Law 240(1). Work Not Encompass “Significant Physical Change” to Billboard.

First Dept., 2025 decision, Harnisch v. City of NY, 2025 NY Slip Op 01574, dismissed Labor Law 240(1) as plaintiff injured in the course of replacing a billboard advertisement without changing the structure of the billboard.  It was held such replacement work was cosmetic maintenance or decorative modification and not alteration. Plaintiff was not effecting a significant physical change to the configuration or composition of the billboard. While plaintiff testified that he was also inspecting the billboard for possible future upkeep and repair work, such inspection was not performed during any ongoing construction project but was held to be merely investigatory.

Affixing Banners to Structure

First Dept. 2024. 240(1) Dismissed. Plaintiff, a stagehand affixing decorative banners to previously erected structure, not engaged in work that triggered protections pf 240(1) or 241(6). Andino v. Wizards Studios N. Inc., 223 AD3d 508;

Installing New Ceiling Tiles to Replace Tiles Damaged by Water, at Dunkin Donuts.

First Dept. 2023. 240(1) Dismissed. Not Construction Related. Plaintiff fell from a ladder while installing 2 ceiling tiles in Dunkin Donuts store where employed as manager. Tiles damaged by recurring leaks in the roof. Plaintiff’s work as store manager not involve performing construction, alteration, demolition or similar labor & Dunkin Donuts did not regularly undertake duties under the Labor Law. Yousuf v. Horace Plaza, LLC, 219 AD3d 1185;  

Second Dept.

Accident at Location Where Construction Materials Stored. Not Construction Work.

240(1) Dismissed

Second Dept. 2010. Defendant owned property in Brooklyn that was used by plaintiff’s employer to store construction related materials for use on various construction projects in NYC. Plaintiff injured his hand while he and coworkers were placing pipes onto a stack of pipes located on defendant’s property. Plaintiff not engaged in construction work when accident occurred. Pirog v. 5433 Preston Ct., LLC, 78 AD3d 676; 

Not Being Readied For Immediate Use. No 240(1) Protection.

Second Dept. 2004. 240(1) Dismissed. Not Construction Work. Materials not being readied for immediate use. Unloading bundles of fencing panels from truck delivered to off-site storage yard for subsequent use in street repair project.As the fencing panels were not being readied for immediate use but were being stockpiled for future use, not engaged in construction work.  Peterkin v. City of NY, 5 AD3d 652.

AC Unit & Refrigeration

Second Dept. 2006. Dismissed. Plaintiff, employee of subcontractor Comfort Air Conditioning & Heating, fell from a ladder as he attempted to replace a water coil in AC unit. As such work involved replacement of worn out parts in a non-construction and non-renovation context, it did not constitute “erection, demolition, repairing, altering, painting, cleaning or pointing of a building within 240(1). Gleason v. Gottlieb, 35 AD3d 355;

Installing Antenna on Utility Pole Not “Construction” Work

Second Dept. 2017.  240(1) Dismissed. Plaintiff, an electrical foreman was assisting in installation of antenna atop a 60-foot utility pole.  He climbed into aerial bucket, which was attached to a boom on bucket truck and tried to raise the bucket.  However, the lift function on the truck malfunctioned and bucket would not move.  At this time, plaintiff observed the “dielectric liner,” which usually covers the inside of the bucket to protect workers from electrical shock, was not in place.  When plaintiff determined he would be unable to raise the bucket, he began exiting the bucket.  As he did so, his foot became caught in a part of the bucket usually covered by dielectric liner, causing a fall.  There was no evidence plaintiff was instructed to exit the bucket in different way in this instance.  Although the dielectric lines was missing, plaintiff’s testimony was such device was designed to protect workers from electrical shocks, not falls.  As such its absence did not constitute 240(1) violation. Also, such work did not involve construction, demolition or excavation and as such 240(1) dismissed. Robinson v. National Grid Energy Mgt., LLC, 150 AD3d 910;

Second Dept. 2014. 240(1) Dismissed. Not Construction Activity. Installing panels in walls. Plaintiff hired to paint decorative images on large wooden panels & to install such panels on the walls of a yeshiva. While plaintiff installing one of the painted wooden panels at the yeshiva, he fell off ladder. Plaintiff not engaged in activity protected under 240(1). Adika v. Beth Gavriel Bukharian Congregation, 119 AD3d 827;

Third Dept.

Construction Escort at Correctional Facility Third Dept. 2012. 240(1) Dismissed. Plaintiff was state correction office assigned by State of NY as construction escort for defendant’s work crew for project at correctional facility. Plaintiff’s duties included ensuring that none of workers’ tools were left at correctional facility where they could be used as weapons by inmates, & protecting workers from inmates. As employees of defendant removed a heavy steel doorframe, it was dropped & struck plaintiff. 240(1) protection not extend to someone on construction site whose role is limited to providing security and does not participate in construction activity. Bolster v. Eastern Bldg. & Restoration, Inc., 96 AD3d 1123;

April 14. Labor Law §240(1) Liability Imposed For Fall From “Unsecured” Ladder. However, If Plaintiff’s “Lateral Movement” Causes a Ladder to Move, It Appears First Dept. Dismisses §240(1).

Amancha v. 720-730 Fort Wash. Ave. Owners Corp., 2026 NY Slip Op 02196, ecided April 14, 2026, First Dept. Plaintiff. a laborer working at renovation project, established prima facie entitlement to summary judgment through his testimony that “as he was working atop unsecured A-frame ladder, the ladder moved, causing a fall.” Appellate Court, in reversing the Motion Court, held, “The evidence that the ladder was unsecured, and that it shifted & moved for no apparent reason, raises the presumption the ladder was insufficient to give proper protection under 240(1).”

Appellate Court held “relevant issue is whether the ladder was secured to something stable or held in place so it remained steady & upright while being used.”  Appellate Court dismissed expert’s opinion the ladder tipped over because plaintiff applied a lateral force to the ladder, because expert cited no evidence in support of such opinion. As such, Appellate Court decision appears to provide that if plaintiff had applied a lateral force to the ladder, such lateral force to the ladder would not constitute comparative defense, which is not a defense to a §240(1) action.

What is “lateral movement?” It would appear to be moving one’s body or a part of one’s body to one side of a ladder. If such movement causes the ladder to move, causing a worker to fall from the ladder, such fall was not from an improperly secured ladder, warranting dismissal of §240(1).

April 14. New York. Issue of Fact Whether Labor Law §200 Provided Protection to Building Porter Struck by Falling Panel From Temporary Structure. Cited Industrial Codes Not Support Motion Court Decision.

Medina v. AquaFence USA, Inc., 2026 NY Slip Op 50491(U), decided March 31, 2026, Hon. Matthew Parker-Raso, Supreme Court, Bronx County. Plaintiff was injured in the course of his employment as the porter at a building. Although plaintiff usually worked at a certain building, on the day of the accident he was assigned to report to One State Street. Such building was owned by One State & managed by Wolfson Group. Arriving at One State Street, the winds were extremely strong & plaintiff observed other porters & employees of One State Street standing outside of the building trying to hold onto the hurricane barriers, which were out of place & flying in the wind. Plaintiff was struck by a hurricane banner flying in the wind.

Such hurricane banner was a panel from a modular system with different compound panels linking together to create a flood wall known as the AquaFence flood barrier system.

One State & Wolfson moved to dismiss Labor Law §200 asserting that the building at One State Street was not under construction & plaintiff was not performing an enumerated activity or covered work under such statute.

It was held, “Contrary to defendants’ argument, the protections afforded a worker under Labor Law §200 are not limited to construction work & apply to work places,” citing Paradise v. Lehrer, McGovern & Bovis, 267 AD2d 132. “To be sure, an individual need not actually be engaged in physical labor to be entitled to coverage under the Labor Law, coverage also extends to those who perform work integral or necessary to the completion of the project,” citing Coombs v. Izzo Gen. Contracting, 49 AD3d 468 (1^st Dept. 2008).

Motion Court rejected the holding in Prats v. Port Authority of NY & NJ, 100 NY2d 878 (2003), because Prats did not discuss §200 at all. Rather, the court solely analyzed a cause of action under §240(1), which is “much more restrictive in its application as it is a strict liability statute.”

Industrial Code §1.4(b)(13) of the Industrial Code defines “construction work” as “all work of the types performed in the repair, maintenance or moving of buildings or other structures” and further that equipment installation also qualifies as construction work. Industrial Code §1.4(b)(16) defines “demolition work” as “work incidental to or associated with the total or partial dismantling of a building or other structure including the removing or dismantling of machinery or other equipment.”        

 Here, expert witness opined plaintiff was participating in work that was part & parcel to the installation of equipment, the moving of an “other structure” & the dismantling of a temporary structure that was also equipment. The expert opined the Aquafence system met the definition of a “temporary structure.” As such, the work was both construction & demolition work. Such opinion raised an issue of fact of whether §200 is applicable to the work plaintiff was performing.

Comment. Such facts not indicate plaintiff was moving a structure or dismantling a structure. Cited Industrial Codes do not appear to support the Motion Court’s holding. Decision warrants appellate review.

April 13. New York. Labor Law §241(6). Industrial Code 23-1.21(b)(4)(iv) Violated. Ladders. No One Holding Ladder in Place. Such Violation Prevented Plaintiff From Being Sole Proximate Cause of Accident.

When work is being performed from ladder rungs between six and 10 feet above the ladder footing, a leaning ladder shall be held in place by a person stationed at the foot of such ladder unless the upper end of such ladder is secured against side slip by its position or by mechanical means. When work is being performed from rungs higher than 10 feet above the ladder footing, mechanical means for securing the upper end of such ladder against side slip is required and the lower end of such ladder shall be held in place by a person unless such lower end is tied to a secure anchorage or safety feet are used.

Macancela v. First Presbyt. Church of Jamaica, 2026 NY Slip Op 31364(U), decided April 6, 2026, Hon. Adam Silvera, Supreme Court. NY County. An electrician employed by Live Wire Electric, fell off the 17^th rung of a 24-foot extension ladder located on a ramp as he attempted to install cabling to a duct to provide power to a fire smoke dampner.

As to Industrial Code 23-1.21(b)(4)(iv), defendants asserted that as plaintiff chose to perform the work sans the ladder being held in place by a coworker, plaintiff cannot recover under §241(6) for his own volition. However, as it was not disputed the ladder was above 10 feet & upper end of the ladder was not secured against sliding, plaintiff cannot be sole proximate cause of the accident. As such, the motion court held Industrial Code 23-1.21(b)(4)(iv) violated.  

23-1.21(b)(4)(iv) Sufficiently Specific to Support 241(6) Cause of Action

First Dept.  2009. Vargas v. NY City TA, 60 AD3d 438;  2004.Montalvo v. J. Petrocelli Constr., Inc.,8 AD3d 173;

Second Dept. 2008.  Kun Yong Ke v. Oversea Chinese Mission, Inc., 49 AD3d 508;  2007. Hunter v. R.J.L. Dept., 44 AD3d 822;

Comment. Conflict Between Departments. First & Fourth Depts. held for 23-1.21(b)(4)(iv) to apply, work must be performed from a ladder. Work must be being performed as opposed to ascending a ladder at time of accident. Second Dept. held that worker is not required to be performing work on a ladder when accident occurred. In that Second Dept. case, plaintiff was struck by a falling ladder while walking past the ladder.

First Dept.

First Dept. 2021. 23-1.21(b)(4)(iv) Dismissed. Requires Work Being Performed From a Ladder. Held not applicable as plaintiff ascending the ladder to reach the sidewalk bridge where he was working. 23-1.21(b)(4)(iv) only applies to work being performed from a ladder. Cordova v. 653 Eleventh Ave., LLC, 190 AD3d 637;

Second Dept.

Second Dept. 2010. 23-1.21(b)(4)(iv) Dismissed. Failure to secure ladder not proximate cause of accident. Power tool plaintiff using while on ladder became stuck in cement wall while drilling. Plaintiff not fall from ladder.  Clavijo v. Universal Baptist Church, 76 AD3d 990;

Second Dept. 2008.  23-1.21(b)(4)(iv) Dismissed. Plaintiff not using ladder as work platform.Plaintiff fell off 20 foot ladder he was using to access roof of building.  Plaintiff hired to apply aluminum coating over the roof. Artoglou v. Gene Scappy Realty Corp., 57 AD3d 460;

Second Dept. 2008. 23-1.21(b)(4)(iv) Dismissed. Ladder Slipped Out From Underneath Plaintiff.  No evidence ladder sagged because it was too weak to support expected maximum loading conditions or upper end of ladder slipped. Rather, ladder slipped out from underneath plaintiff. Kim v. Realty, 47 AD3d 616;

Fourth Dept.

Defendants Failed to Show There Was No Violation of 23-1.21(b)(4)(iv). Rubber Boot Missing.

Rogers v. DS Restoration & Residential Servs. Co., 2026 NY Slip Op 00725, decided Feb. 11, 2026, Fourth Dept. Plaintiff hired to clean gutters at a home fell off a ladder. Defendants’ liability expert opined such Industrial Code was not violated as the top of the ladder was secured against slide slip by mechanical means, i.e., a stand-off stabilizer, and the bottom of the ladder had safety feet. However, plaintiff testified the rubber boot on the stabilizer leg was missing.

Plaintiff testified the purpose of the boot “was to help protect the house, and then the ridges are for the stability so that it has grip.” Defendants’ expert provided only equivocal opinion, stating that s single boot “would not appreciably change the stability & safety of the standoff on a properly placed ladder.”  

Fourth Dept. 2020. 23-1.21(b)(4)(iv) Dismissed. Not Apply Where Ladder Kicked Straight Out. As plaintiff conceded ladder did not “slip side” but instead kicked straight out from under him, 1.21(b)(4)(iv) not apply.  Walkow v. MJ Peterson/Tucker Homes, LLC, 185 AD3d 1463;

Fourth Dept. 2012. 23-1.21(b)(4)(iv) Dismissed. Plaintiff not performing work from ladder. Rather, plaintiff using ladder to gain access to a scaffold from which she intended to perform assigned work. Kin v. State, 101 AD3d 1606;

Fourth Dept. 2010. 23-1.21 Dismissed. Plaintiff fell from ladder pick & not rungs of ladder. 2008.Handville v. MJP Contractors, Inc., 77 AD3d 1471;

Fourth Dept. 2008. 23-1.21 Dismissed. As plaintiff fell from a ladder pick & not from rungs of a ladder, 23-1.21 inapplicable. Evans v. Syracuse Model Neighborhood, 53 AD3d 1135;

Fourth Dept. 2007.  Code section only applies if work is being performed from a ladder. Arigo v. Spencer, 39 AD3d 1143; 

23-1.21(b)(4)(iv) Violated or Not Dismissed

First Dept.

First Dept. 2021. Defendant’s Motion to Dismiss 23-1.21(b)(4)(ii) Denied. Ladder unsecured; lacked rubber footing & no one holding ladder in place.Martinez v. ST-DIL LLC, 192 AD3d 511;

First Dept. 2019. 23-1.21(b)(4)(iv) Not Dismissed. It was unclear whether plaintiff standing on a rung of a ladder that was at least 10 feet off ground at time of accident, precluding finding 23.1.21(b)(4)(iv) violated. Terc v. 535 Coster Realty Inc., 176 AD3d 562;

23.1.21(b)(4) (iv). Requires a ladder to be secured against “side slip.”

First Dept. 2015. 23-1.21(b)(4) Violated. Plaintiff used top half of separated extension ladder which not have rubber footings.Stankey v. Tishman Constr. Corp. Of NY, 131 AD3d 430;

Second Dept.

Second Dept. 2013. 23-1.21(b)(4)(iv) Violation Established. Plaintiff fell from ladder performing electrical work at school.Grant v. City of NY, 109 AD3d 961;

Second Dept. 2013. 23-1.21(b)(4)(iv) Issue of Fact. Plaintiff walking past20 foot extension ladder which a worker from another trade was using to scrape the ceiling, when the ladder suddenly fell and plaintiff struck by falling ladder and worker. Contrary to defendant’s contention, it was of no consequence plaintiff not on ladder when accident occurred as long as Industrial Code violation proximate cause of accident. Plaintiff’s deposition raised issue of fact as to whether 23-1.21(b)(4)(iv) was violated & if so, whether such violation was proximate cause of accident. Torres v. Perry St. Dev. Corp., 104 AD3d 672;

Second Dept. 2011. 23-1.21(b)(4)(iv) Violated. Plaintiff working 26-39 Feet Above Ground. No One Holding Ladder & Top of Ladder Not Secured. Plaintiff standing on extension ladder that had old & worn feet. Plaintiff placing bricks under AC unit on second floor of building. No one holding ladder & plaintiff placed small blocks at the bottom to prevent it from moving. Bottom of the ladder slid back, away from building & top of ladder slid down the side of building. No witnesses. Plaintiff testified he was working about 8 to 12 meters, or about 26 to 39 feet above ground. No one holding bottom of ladder & top of ladder not secured. Melchor v. Singh, 90 AD3d 866;  

Third Dept. Third Dept. 2010. 23-1.21(b)(4)(iv). Issue of Fact. As no one holding ladder in place & no mechanical devices used to hold it in place, issues of fact whether accident occurred because  ladder slipped out of place. Deshields v. Carey, 69 AD3d 1191;

April 13. New York. Shifting of Unsecured Ladder. §240(1) Liability Imposed.

Comment. Although defendants produced evidence ladder not defective, adequacy of ladder is not a question of fact when it slips. As such, when a ladder slips, defendant cannot argue the ladder was not defective, as the issue is whether the ladder was properly secured in a work area. 

Ladder held to be “unsecured” in context of 240(1)

Shifting or movement of ladder.

Ladder slides away from its position.

Wobbly ladder.

Ladder not chocked or wedged in place.

A-Frame ladder utilized while in closed position.

Ladder itself placed in slippery condition.

Worn or missing parts or transient condition.

Ladder knocked over by falling debris or contact with ladder.

When second worker not holding ladder.

Ladder’s improper positioning.

Ladder Unsecured, Not Misused.

Ladder moved because worker holding portion of cement slab.

First Dept.

First Dept. 2018. 240(1) Liability Imposed. Plaintiff slipped or fell from unsecured ladder which he was working on because it moved. Testimony of coworker that plaintiff stated he slipped was not inconsistent with plaintiff’s version that he slipped after ladder moved. Also, defendant’s expert affidavit asserting that no force acted upon the ladder that could have caused it to move was speculative. Merino v. Continental Towers Condominium, 159 AD3d 471; 

First Dept. 2017. 240(1) Liability Imposed. Evidence established ladder twisted underneath plaintiff because it was unsecured, not because it was misused by plaintiff & defendants provided no other safety devices. At most, plaintiff’s application of pressure to ladder while engaged in his work, causing it to twist, was comparative negligence, not a defense to 240(1). Messina v. City of NY, 148 AD3d 493;

First Dept. 2016. 240(1) Liability Imposed. Conflicting evidence as to whether shaking of ladder from which plaintiff fell was caused by foreman standing on ladder with him or bumping into it on the ground not raise issue of fact as to defendants’ liability. Failing to secure a ladder against slippage by any means is violation of 240(1). As 240(1) was violated in either version of the accident, no credibility issue was present. Ausby v. 365 W. End LLC, 135 AD3d 481; 

First Dept. 2013. 240(1) Liability Imposed. Extension ladder on sidewalk bridge not secured. Plaintiff ascended to sidewalk bridge using a properly secured ladder. Once on the sidewalk bridge, plaintiff began ascending second extension ladder not properly secured. Extension ladder slid, causing a 10-foot fall. Failure to properly secure ladder to insure it remains steady & erect while being used is 240(1) violation. Assertion that plaintiff should have checked ladder before ascending ladder amounts, at most, to contributory negligence, a defense inapplicable in 240(1) action. Nacewicz v. Roman Catholic Church of the Holy Cross, 105 AD3d 402;

First Dept, 2012. 240(1) Liability Imposed. Ladder unsecured. Although different versions of how plaintiff fell, accident occurred as plaintiff not given proper protection to prevent his fall. 240(1) violated whether fall caused by unsecured A-frame ladder that slipped, or, unsecured Masonite covered office ceiling used as elevated work platform that shifted, or, whether plaintiff lost his balance when unsecured Masonite gave way when he leaned on it as he climbed unsecured ladder. Not a case where plaintiff simply lost his balance & fell from secured ladder. Lipari v. AT Spring, LLC, 92 AD3d 502;

Second Dept.

Second Dept. 2024. 240(1) Liability Imposed. Plaintiff fell from wooden A-frame ladder at residential building. At the time, plaintiff repairing a ceiling hole. Plaintiff testified that while he was standing on the ladder, sanding the ceiling, ladder moved & fell, causing fall. Such deposition testimony established unsecured ladder moved & fell. Paibu v. 56-11 94^th St. Co., LLC, 2024 NY Slip Op 03437;

Second Dept. 2020. 240(1) Liability Imposed. Unsecured Ladder. Work material held by worker caused movement of ladder. Plaintiff repositioning a cement slab forming part of ceiling of one-story building. Plaintiff stood on 9-foot A-frame ladder while 2 coworkers positioned on roof. Plaintiff held one end of large cement slab as two coworkers pushed slab with crowbar. Slab 12 feet long. As he held the slab, ladder moved, causing slab to fall onto his hand. Plaintiff alleged a sling should have been provided to secure the slab. Defendants failed to show accident not result from failure to provide safety device. Gomez v. 670 Merrick Rd. Realty Corp., 189 AD3d 1187;

Second Dept. 2015. 240(1) Liability Imposed. The foot of unsecured A-frame ladder twisted out from under plaintiff while he was lifting materials from one level of the roof to another level of roof. When he fell, plaintiff not holding ladder but carrying materials in one hand & had his other hand on a wall.  240(1) awarded as the ladder unsecured & twisted out from under plaintiff for no apparent reason, causing a fall. Seferovic v. Atlantic Real Estate Holdings, LLC, 127 AD3d 1058;

Second Dept. 2011. 240(1) Liability Imposed. Plaintiff standing on unsecured A-frame ladder when ladder shifted, causing a fall. Fact that ladder may have had a brace in the middle to keep it open was immaterial, as ladder not secured to something stable & not chocked or wedged in place. Gonzalez v. AMCC Corp., 88 AD3d 945;

Fourth Dept.

Fourth Dept. 2021. 240(1) Liability Imposed. Plaintiff met his initial burden on the motion by establishing ladder was not so placed as to afford him proper protection. Plaintiff fell from ladder when it slid to the side. Defendant failed to show plaintiff’s action were sole proximate cause of accident. Harris v. Tesmer Bidrs, 197 AD3d 911;

Fourth Dept. 2012. 240(1) Liability Imposed Court rejected contention sole proximate cause of accident was plaintiff’s improper use of top half of extension ladder, which lacked rubber feet. As no dispute ladder slipped, causing a fall from elevated height, plaintiff met her burden under 240(1) of establishing the ladder was improperly placed. Kin v. State of NY , 101 AD3d 1606;

Fourth Dept. 2010. 240(1) Liability Imposed. Ladder upon which plaintiff was standing, slipped, causing a fall. It was not disputed subject ladder not secured to roof. Ladder inadequately secured. Chacon-Chavez v. City of Rochester, 72 AD3d 1636;

 Fourth Dept. 2005. 240(1) Liability Imposed. Failure to secure stepladder. Plaintiff met his burden of establishing stepladder provided to him inadequate to protect him from elevation-risk to which he was exposed based upon failure to secure stepladder. Losurdo v. Skyline Assoc. LP, 24 AD3d 1235; Fourth Dept. 2005. 240(1) Liability Imposed. Plaintiff established the ladder buckled when plaintiff leaned to his left in order to bolt a sign cover to a wall, causing a loss of balance & fall. Plaintiff established ladder not provide requisite protection in accordance with 240(1). Where there is statutory violation, plaintiff cannot be sole proximate cause of accident. Nephew v. Klewin Bldg. Co., Inc., 21 AD3d 1419;

April 12. New York. Evidence. Photos of Accident Scene Taken Mere 4 Hours After Accident Ruled Not Admissible. However, Photos Raised Issue of Fact as to Cause of Accident. Appellate Court Review Warranted.  

Caton v. Turner & McKissack, 2026 NY Slip Op 31350(U),Hon. Devin Cohen, Supreme Court, Kings County, decided March 24, 2026. Entering a shaft at a work site, plaintiff required to crouch into a cut-out in the wall. Entering the shaft, plaintiff’s foot slipped & tripped on debris, causing a fall. Plaintiff authenticated photos of the shaft depicting material on the floor. Defendants provided other photos from an investigator who took such photographs of the shaft 4 hours post-accident. The decision does not provide when the photos authenticated by plaintiff were taken.

The decision held that photos taken by investigator 4 hours after the accident failed to raise an issue of fact as there was no testimony that these photos depicted the shaft in substantially the same condition it was in when plaintiff fell. Plaintiff authenticated photos of the shaft containing debris & Court held such deposition testimony unrebutted.

Comment. As noted, the decision does not provide when the photos plaintiff authenticated, were taken.  The decision fails to provide who took such photographs. Where the decision indicates photos taken 4 hours after the accident depict no debris in the shaft, such photos raise a triable issue of fact as to the condition of the shaft when plaintiff’s accident occurred.

The 4 hour period after the accident is too close in time to not consider such photos, where such photos contradict plaintiff’s testimony as to the cause of the accident.  The decision cites no evidence the shaft was cleaned after the accident. Motion court lost site of plaintiff’s vested interest in assessing credibility of his deposition testimony. Appellate Court review warranted.     

April 12. New York. §241(6) Action. Industrial Code 23-5.1(j). Safety Railings. Not Apply to Scaffolds 7 Feet or Less.

• The open sides of all scaffold platforms, except those platforms listed in the exception below, shall be provided with safety railings constructed and installed in compliance with this Part.

Exceptions: Any scaffold platform with an elevation of not more than 7 feet; the platforms of needle beam scaffolds; floats and rivet heater performs in use by structural ironworkers; ladder jack scaffold platforms; and trestle and extension trestle ladder scaffold platforms.

Hippolyte v. Grey-Ruso Constr., 2026 NY Slip Op 31351(U), decided April 1, 2026, Hon. Wavny Toussaint, Supreme Court, Kings County. While performing taping/spackling work as part of the build-out on the eighth floor of a commercial building, plaintiff’s foot slipped on Bakers scaffold as he was stepping onto A-frame ladder, causing a fall. Such Bakers scaffold was equipped with front & rear guardrails that reached to plaintiff’s midsection. When plaintiff’s foot slipped, plaintiff grabbed the scaffold’s railing to steady himself. However a sharp metal edge on the railing cut through his glove, causing him to lose his grip & fall.  Plaintiff could not identify the cause of his foot slipping.

23-5.1(j)(1) states a specific standard requiring scaffolds to have safety railings on their open sides. While such section expressly exempts scaffolds with platform elevations of not more than 7 feet from this railing requirement, plaintiff’s testimony that the scaffold was “around” 7 feet above the ground “does not unequivocally demonstrate that the exception applies here.” As such, issue of fact whether the railing requirement applies here.   

Other decisions.

23-5.1(j) Not Dismissed

First Dept. 2022. 23-5.1(j) Dismissed. Such section applies to the ends or open sides of sidewalk sheds & scaffolds. Here, accident occurred in interior sections of sidewalk bridge.Also, handrail ran along length of sidewalk bridge. There was a plywood barrier, 8 feet tall, on exterior side of sidewalk bridge to prevent workers from falling. Polonia v. 14 Sutton Tenants Corp., 210 AD3d 417;

First Dept. 2017. 23-5.1(j)(1) Dismissed. Plaintiff not fall from scaffold. As such, a missing rail not proximate cause off accident.Varona v. Brooks Shopping Ctrs. LLC, 151 AD3d 459;  

First Dept. 2018. 23-5.1(j) Dismissed. At no time did plaintiff claim he was caused to fall due to inadequate railings. Plaintiff carried marble up metal staircase inside tower scaffold on site. While walking backwards up the scaffold, plaintiff fell. Violation of 23-5.1(j) not proximate cause of accident. Santos v. Condo 124 LLC, 161 AD3d 650; 

First Dept. 2008. 23-5.1(j) Not Applicable. Accident occurred as plaintiff attempted to realign a side panel of sidewalk bridge and panel gave way and fell to ground, along with plaintiff. Kaminski v. Carlyle One, 51 AD3d 473;   

23-5.1(j) Not Dismissed.

First Dept.

First Dept. 2018. 23-5.1(j) Not Dismissed. Issue of fact as to actual height of the scaffold. Plaintiff tripped on a block, fell backward off scaffold. Scaffold had no railings, toe boards or cross bracing. Gomes v. Pearson Capital Partners LLC, 159 AD3d 480;

First Dept. 2010. 23-5.1(j)(1) Not Dismissed.  While working on George Washington Bridge, plaintiff fell from a bridge tower when his sandblasting hose exploded after he attempted to unclog it. While plaintiff was provided a spider basket to perform his work, he exited the spider basket to perform sandblasting. Latchuk v. Port Auth. off NY, 71 AD3d 560;

First Dept. 2008. 23-5.1(j) Not Dismissed. Plaintiff fell from prefabricated temporary stairway while attempting to attach the stairwell to a bridge’s anchorage. As stairway moved away from the anchorage, he fell between the gap between the anchorage & stairway. Stephens v. Triborough Bridge, 55 AD3d 410; 

First Dept. 2002. 23-5.1(j)(1) Not Dismissed.  Issue of fact as to whether scaffold from which plaintiff fell was at least 7 feet high as required by 23-5.1(j)(1).  Crespo v. Triad Inc., 294 AD2d 145;

Second Dept. 2021. 23-5.1(j). Plaintiff’s Motion Denied. Plaintiff failed to establish scaffold lacked safety railings in violation of 23-5.1(j) & whether any violation was a proximate cause of accident. Plaintiff placing plastic on façade of building when he stepped into a gap between 2 scaffolds, causing a fall. Torres v. NYCHA, 199 AD3d 852;

23-5.1(j) Not Dismissed Second Dept. 2021. 23-5.1(j) Not Dismissed. Specifies when safety railings are required on scaffolds. Defendant failed to show such section not applicable. To create a scaffold, plaintiff affixed triangular, metal brackets to outside of house & then laid wooden planks across the brackets. When plaintiff stepped on the scaffold, it collapsed. Debennedetto v. Chetrit, 190 AD3d 933;

April 12. §241(6) Action. Industrial Codes Abandoned Where Plaintiff Fails to Specify A Particular Subsection or Subdivision.

Hippolyte v. Grey-Ruso Constr. Corp., 2026 NY Slip Op 31351(U), decided April 1, 2026, Hon. Wavny Toussaint, Supreme Court, Kings County. Since plaintiff did not specify the violation of any particular subsection or subdivisions of Industrial Codes 23-5.1, 23-5.3, 23-5.4 and 23-5.14, defendants cannot be faulted for failing to address the specifics of those sections in moving for summary judgment to dismiss plaintiff’s Labor Law 241(6) action. First Dept. 2016.  McLean v. Tishman Constr. Corp., 144 AD3d 534;

April 11. New York. Falling Work Site Materials. 240(1) Liability.

Comment. De minimis defense that an accident of a falling object was outside protection of 240(1) denied. While the object fell only a slight distance, it was not a de minimis distance given the weight of the object. Such weight generated force of gravity even over a slight distance to bring the claim within 240(1).

Falling Block of Cement

First Dept. 2025. 240(1) Liability Imposed. Plaintiff tasked with chipping cement encasements from two-story, vertical columns located in the lobby of a building. Plaintiff was going up in a scissor lift when he was struck by a 300 pound piece of cement falling from the middle of a column.  Plaintiff established he was injured by falling cement from an area on a vertical column and that at the time of the accident he was not otherwise engaged in actual cement removal. Also, shoring or bracing of the cement casing on the columns could have been accomplished by wire mesh or other means without making the work impossible to complete.  Mannino v. Waldorf Exteriors, LLC, 2025 NY Slip Op 00830;

Granite Panel

First Dept. 2022. 240(1) Liability Imposed. Plaintiff established defendant’s 240(1) liability by evidence 400 pound granite panel fell on him from absence of safety device. Roman v. Zapco 1500 Inv., LP, 206 AD3d 439;    

Plywood Form

First Dept. 2020. While employed as carpenter at construction site, plaintiff struck by falling 4 by 8 plywood form dropped by coworkers who were stripping plywood forms from the cured concrete poured ceiling. Plaintiff was instructed to remove plywood form debris from the floor near where coworkers were working on ladders stripping plywood forms from the ceiling. Type of work being performed, dislodging heavy plywood forms from a newly constructed concrete ceiling, involved a load requiring securing & because accident was foreseeable consequence of the risk of performing the task without any safety device of the kind enumerated in 240(1). Diaz v. Raveh Realty, LLC, 182 AD3d 515; 

Steel Plate

First Dept. 2018. 240(1) Liability Imposed. 1-2 Ton Steel Plate Fell 2-3 Feet. Accident occurred when a nylon sling attaching a one to two ton steel plate to an excavator snapped, causing heavy plate to fall to the ground, bounce & sever the pole of nearby street sign. Impact caused street sign to strike plaintiff. Photos taken after accident show steel plate was 2-3 feet off the ground. Such elevation differential cannot be viewed as de minimis, given weight of steel plate & amount of force it generated over course of its relatively short descent. Makkich v. Judlau Contr. Inc., 162 AD3d 468;

I-Beam

First Dept. 2018. 240(1) Liability Imposed. 500-Pound I-Beam fell 6 inches onto plaintiff’s shoulder. Plaintiff & 3 coworkers attempting to load 500-pound steel I-beam into internal freight elevator at construction site to transport beam from 18^th floor to ground floor. A hatch door opened on top of elevator as workers attempted to stand beam on its end, with high end extending through the open hatch. While doing so, beam fell down half a foot onto plaintiff’s shoulder. 240(1) imposed as the half foot that steel I-beam dropped onto plaintiff’s shoulder is not de minimis given its weight & hazard directly flowing from application of force of gravity to a person. Villanueva v. 114 Fifth Ave. Assoc. LLC, 162 AD3d 404;

Beam Lowered From Sidewalk Bridge

First Dept. 2015. 240(1) Liability Imposed. A structure composed of 3 steel beams in shape of upside down letter “U,” removed from sidewalk bridge, was being lowered toward plaintiff by 2 other workers. Those workers each held one of two vertical components while walking backwards, as plaintiff stood in front of horizontal beam in the middle with intention of grabbing it & assisting in lowering the structure to ground. Although 2 workers holding structure initially lowered it very slowly, they lost control of it, causing it to descend toward plaintiff so quickly that it immediately slipped out of his hand as he attempted to catch it, striking him in the chest. Plaintiff established beam required securing for such undertaking. Height differential cannot be described as de minimis given amount of force beam was able to generate over its descent. Bonaerge v. Leighton House Condominium, 134 AD3d 648;  

Two 500 Pound Beams

First Dept. 2013. 240(1) Imposed. Two 500 pounds beams falling from cart at ground level, striking plaintiff’s leg. While plaintiff walked over across plywood planks covering fresh concrete, plywood planks buckled & shifted. As a result, A-frame cart containing sheetrock & two 500 pound steel beams tipped over, striking plaintiff. Beams fell a short distance from top of the cart to plaintiff’s leg. Given the beams total weight of 1000 pounds & force such beams able to generate during short descent, height differential not de minimis. Marrero v. 2075 Holding Co., LLC, 106 AD3d 408;

Rebar Falling When Passed to Another Worker

First Dept. 2018. Assuming piece of rebar that struck plaintiff weighed what defendants claimed it weighed, it still presented an elevation-related risk even if it may have traveled only a short distance before striking plaintiff. Court rejected defendants’ contention that rebar being passed to plaintiff did not require a safety device of type contemplated by 240(1) because it was being carried by hand.  However, plaintiff not entitled to summary judgment under 240(1) because records of his medical treatment raised issue of fact as to whether injury caused in manner described by plaintiff. Gutierrez v. Harco Consultants Corp., 157 AD3d 537;

1500 Pound Stacked Rails

First Dept. 2015. 240(1) Liability Imposed. 1500 pound rails stacked 3 feet high not de minimis height. Given 1500 pound weight of the rail & amount of force it was capable of generating, even over course of relatively short descent, such descent not de minimis. Harm to plaintiff was direct consequence of application of force of gravity to rail striking plaintiff. Jordan v. City of NY, 126 AD3d 619;

Aluminum Beam

First Dept. 2014. 240(1) Liability Imposed. While carrying an 18 foot long wooden stringer on his shoulder, a falling aluminum beam struck the stringer, causing a fall.  Plaintiff not see beam hit the stringer or know where beam fell from. Regardless of how high the beam was above plaintiff when it fell, height differential not de minimis, given amount of force aluminum beam able to generate during its descent. Humphrey v. Park View Fifth Ave. Assoc. LLC, 113 AD3d 558;  

Building Materials

Second Dept.

Moving 300 Pound Compressor Over 2 Foot Trench

Second Dept. 2023. 240(1) Liability Imposed.Plaintiff & coworkers at construction site attempted to transport a compressor weighing 300 pounds from a sidewalk to street. Required moving compressor over a trench 2 feet deep covered by plywood ramp. Plywood ramp broke, causing compressor to fall into the trench with handle of compressor striking plaintiff’s foot. Although compressor fell only short distance, given weight of compressor & amount of force it was capable of generating, height differential not de minimis. Plaintiff suffered harm flowing directly from application of force of gravity to compressor. Gonzalez v. Madison Sixty, LLC, 216 AD3d 1141;

Rebar Bundles

Second Dept. 2014. Plaintiff & coworkers unloading bundle of steel reinforcing bars, known as rebar, from flatbed truck. Rebar bundles weighed 8000-10,000 pounds each & were 40 feet in length. Workers used crow bars to roll rebar bundles off of wooden 4 by 4 planks as they were positioned on the truck.  Distance from truck to the ground was 5 feet. As one of rebar bundles began to fall from truck, shift in weight allegedly caused one of wooden planks to catapult plaintiff 15 feet into the air from the bed of the truck, where he was standing on plank. Plaintiff fell 20 feet to ground. Launch of plaintiff from truck along with wooden 4 by 4 plank upon which he was standing flowed directly from application of force of gravity to rebar bundle. Elevation differential between flatbed truck & ground significant given 8000-10,000 pound weight of rebar, & amount of force rebar capable of generating, even over course of relatively short descent. Treile v. Brooklyn Tillary, LLC, 120 AD3d 1335;

39 Foot, 1300 Pound Rail. Fell 16 Inches.

Second Dept. 2010. 240(1) Not Dismissed. Plaintiff, employer of NYC Transit Authority, suffered accident as he & coworkers used rail hooks to move 39-foot, 1300 pound rail on top of another rail at Steinway subway station in Queens. While coworkers began lifting rail off the ground, plaintiff’s hooks not in place & plaintiff not ready to begin lifting. It caused coworkers to lose control of rail & resulted in rail falling a distance of 12-16 inches onto plaintiff’s right leg. Such elevation differential not de minimis given weight of the rail & amount of force it was capable of generating, even over course of relatively short descent. However, plaintiff failed to show rail fell because of absence or inadequacy of a safety device enumerated in 240(1). Gutman v. City of NY, 78 AD3d 886;

Pieces of Sheetrock Weighting 1600 Pounds Fell 5 Feet

Second Dept. 2017. 240(1) Imposed. Dolly loaded with 16 pieces of sheetrock was out of control, coming backwards down 5 foot high temporary ramp striking plaintiff. Plaintiff pushing a dolly loaded with 16 pieces of sheetrock up a temporary plywood ramp. Sheetrock pieces were 10 feet long by 4 feet wide & ¾ inch thick. Base of ramp was 5 feet off the ground. As plaintiff pushing the dolly up the ramp, dolly suddenly stopped. Dolly then rolled backward down ramp striking plaintiff. Relevant inquiry for 240(1) is whether harm flows directly from the application of the force of gravity to object. 5 foot high ramp cannot be viewed as de minimis given weight of object & amount of force it was capable of generating. Plaintiff’s expert opined 16 pieces of sheetrock weighed in excess of 1000 pounds. Kandatyan v. 400 Fifth Realty, LLC, 155 AD3d 848;

Third Dept.

600 Pound Roof Membrane 18 Inches Off Roof Surface

Third Dept. 2013. 600 Pound Roof Membrane Fell 18 Inches. Plaintiff, employed as roofer, hired to replace a roof on shopping center.  Accident occurred when the handle of a roll carrier, a device used to dispense roofing material (the membrane roll) hit him in the head as he was helping to unroll membrane. As roll carrier shifted on slippery roof, it caused membrane roll to drop, forcing the T-handle to rapidly move upward striking plaintiff’s head. Court held that while plaintiff not struck by falling membrane roll, accident resulted from exposure to risk of gravity while working with heavy materials hoisted above roof’s surface on which he was standing. Here, membrane roll weighed 600 pounds & hoisted by roll carrier to height of 18 inches off the surface of roof at time of accident.  Despite relatively short distance it fell, it was significant elevation differential given its substantial weight & powerful force generated when it fell. Jackson v, Heitman Funds/191 Colonie LLC, 111 AD3d 1208;

Fourth Dept.

Skid Box Concrete Debris Slid 1-2 Feet Off Forklift

Fourth Dept. 2011. 240 Liability Imposed. Falling of container of debris 1-2 Feet not de minimis. Accident occurred when large skid box containing concrete debris slid off a forklift striking plaintiff. While defendant asserted 240(1) inapplicable as there was no significant height differential between skid box & platform onto which it fell, a difference of 1-2 feet, with the weight of skid box & its contents, as well as potential harm it could cause, “it cannot be said such elevation difference was de minimis.” DiPalma v. State of NY, 90 AD3d 1659;

April 11. New York. Accident Not Result of Significant Elevation Hazard. 240(1) Dismissed.

Comment. Amount of a gapcausing a fall or thedistance a worker fell was deemed in below cases not to be a condition requiring any of the safety devices of 240(1). As such, 240(1) action dismissed. Talking about falls of a several inches or a few feet from ramps or holes. Such minute distances are held to be usual & ordinary conditions of a work site.        

240(1) Dismissed.

Gap between insulation boards.

Fall into trough.

Falls from ramps.

Gap between flatbed truck & loading dock.

Tilt of truck.

Fall off pallet.

Hole in flatbed truck.

Fall through rebar.

Fall off a stage.

Court of Appeals

5-6 Inch Gap Between Insulation Boards

Court of Appeals. 2006. 240(1) Dismissed. Falling into 5-6 inch gap between insulation boards, which were stacked 8-feet tall, not gravity-related accident. Keavey v. New York State Dormitory Auth., 6 NY3d 859;

First Dept.

Plaintiff Struck by Excavator

First Dept. 2022. 240(1) Dismissed. Accident not result of direct consequence of failure to provide adequate protection against a risk arising from physically significant elevation differential. While plaintiff struck by excavator, fact that at the time he was bringing debris up earthen ramp or that he rolled down the ramp after being struck, not give rise to 240(1) action. Herrera v. Kent Ave, Prop. III LLC, 203 AD3d 512;

Ramps

First Dept. 2022. 240(1) Dismissed. 12-18 Inch Ramp From Ground to Sidewalk Not Elevation Related Hazard.  While wheeling hand truck carrying work material along plywood ramp, one of pieces of plywood shifted under him, causing him to fall onto steel piping & concrete floor 12-18 inches below. Although no bright line minimum height differential determining whether elevation hazard exists, for purposes of 240(1), accident not the result of elevation related risk. D’Ambruso v. Port. Auth. of NY & NJ, 211 AD3d 573;

First Dept. 2018. 240(1) Dismissed. 6-10 Inch Makeshift Ramp Not Significant Elevation Differential. While plaintiff carrying water main pipe he lost his balance upon stepping on makeshift ramp that “bowed,” causing pipe to fall & plaintiff injured. Height differential of 6-10 inches of ramp not physically significant elevation differential under 240(1). Also, impetus for pipe’s descent was plaintiff’s loss of balance, rather than direct consequence of force of gravity. Jackson v. Hunter Roberts Constr. Group, LLC, 161 AD3d 666;

First Dept. 2018. 240(1) Dismissed. Ramp 8-12 Inches From Bed of Truck to Loading Dock. Plaintiff rolling 4 wheeled cart filled with 200 pounds of materials over unsecured, makeshift plywood ramp which bridged 6-inch gap between truck bed to loading dock. Ramp slipped out of place & cart fell, causing injury to plaintiff. Vertical distance from truck bed to loading dock 8-12 inches. Accident not caused by failure to protect him from elevation risk posed by distance of almost 4 feet from floor to surface of loading dock, as plaintiff remained on loading dock while cart became wedged in gap between truck bed & loading dock & no evidence such gap large enough to pose significant risk of a fall to floor. Sawczyszyn v. NYU, 158 AD3d 510;

First Dept. 2009. 240(1) Dismissed. 12-18 Inch Not Height Differential. Makeshift Ramp. Construction debris from the project was removed from the site & taken to the street in Rite-Way’s wheeled containers, which typically held 250 pounds of material. Plaintiff injured while rolling a filled container from work site to his truck parked on street. ¾ inch thick sheet of plywood laid down as makeshift ramp to bridge the gap in height between edge of work site, at curb level & street, which was lower than usual as surface layer of asphalt removed during ongoing repaving. Plywood not braced or supported from beneath. Height differential between bridged levels 12-18 inches. As plaintiff pushed container down ramp, ramp collapsed, causing concrete debris to strike plaintiff’s leg. As height differential from bottom to the top between street & curb was at most 12 to 18 inches, plaintiff not exposed to elevation differential hazard under 240(1). Torkel v. NYU Hosp. Ctr., 63 AD3d 587;

Ladder

First Dept. 2024. 240(1) Dismissed. Plaintiff injured while standing on ladder using a grinder to cut a metal plate at chest height. As plaintiff worked, grinder began shaking & kicked back, striking his face. Although ladder moved after the grinder malfunctioned, ladder not fall or collapse, nor did plaintiff fall from the ladder because he held onto a wooden beam & coworkers then held the ladder, helping him down. 240(1) dismissed as accident stemmed from grinder & that not fall from ladder. Accident not arise from elevation-related risk. Desprez v. United Prime Broadway, LLC, 225 AD3d 518; 

Fall From Pallet

First Dept. 2012. 240(1) Dismissed. Fall From Unsecured Pallet & Water Accumulation. Plaintiff’s work consisted of cutting bricks with employer’s stationary wet saw. While in use, a wet saw sprays water on bricks being cut to cool & lubricate the bricks & cutting blade & reduce dust & flying particles. Plaintiff claimed wet saw malfunctioned & sprayed water all over, including floor. Water accumulated underneath pallet plaintiff standing on, causing pallet to shift when plaintiff picked up bricks or put them down. The saw was only source of the water. When pallet shifted, left foot became caught between pallet slats & fell to floor. Plaintiff was at most 12 inches above the floor standing on pallet & as such, not exposed to elevation related risk requiring protective equipment. Cappabianca v. Skanska USA Bldg. Inc., 99 AD3d 139;

Transformer Falling Off Wall Fell 2 Feet Before Striking Worker

First Dept. 2010. 240(1) Dismissed. No Appreciable Height Distance. Transformer fell less than 2 feet. As plaintiff attempted to repair a pipe, transformer affixed to a wall at height of 6-7 feet, fell, striking plaintiff in the head. As plaintiff was 5 feet, 8 inches tall, transformer fell less than 2 feet. Plaintiff standing on ground when struck by transformer. As plaintiff not working at elevation & no appreciable height differential between plaintiff’s head & falling transformer, 240(1) dismissed. Makarius v. Port Auth. of NY & NJ, 76 AD3d 805;  

12 Inches. 240(1) Dismissed.

First Dept. 2012. 240(1) Dismissed. Fall From Unsecured Pallet & Water Accumulation. Plaintiff’s work consisted of cutting bricks with his employer’s stationary wet saw. While in use, a wet saw sprays water on bricks being cut to cool & lubricate bricks & cutting blade & reduce dust & flying particles. Plaintiff claimed wet saw malfunctioned & that it sprayed water all over, including floor. Water accumulated underneath pallet plaintiff was standing on, causing pallet to shift when plaintiff picked up bricks or put them down. The saw was the only source of the water. When pallet shifted, left foot became caught between pallet slats & he fell to floor. Plaintiff was at most 12 inches above the floor standing on pallet & as such, not exposed to elevation related risk requiring protective equipment. Cappabianca v. Skanska USA Bldg. Inc., 99 AD3d 139;

Truck Having Slight “Tilt.”

First Dept. 2016. 240(1) Dismissed as Plaintiff Loading Ladders on Truck Having Slight “Tilt.” Work plaintiff engaged in, i.e., retrieving ladders his employers used at work site, construction-related activity covered by 240(1) & 241(6). However, as no elevation risk, 240(1) dismissed. As plaintiff testified not notice tilt of truck onto which he was loading ladders, any elevation differential resulting from tilt was de minimis. Guido v. Dormitory Auth. of the State of NY, 145 AD3d 591;

Stepping Into Hole on Flatbed Trailer

First Dept. 2015. 240(1) Dismissed. While working on flatbed trailer, plaintiff stepped into hole on flatbed trailer, sinking his leg into the hole up to the hip. Plaintiff not exposed to any gravity related risk from his work. Brown v. NY-Presbyterian HealthCare Sys., 123 AD3d 612;

Hole in Floor of Trailer

First Dept. 2006. 240(1) Dismissed. Plaintiff’s legs fell through the floor of trailer up his knee. It was not elevation related risk. Kulovany v. Cerco Prods., Inc., 26 AD3d 224;

First Dept. 2018. 240(1) Dismissed. Plaintiff rolling a 4 wheeled cart filled with 200 pounds of materials over unsecured, makeshift plywood ramp which bridged a 6-inch gap between a truck bed to a loading dock. Ramp slipped out of place & cart fell, causing injury to plaintiff. Vertical distance from truck bed to loading dock was 8-12 inches. Plaintiff’s injury not caused by failure to protect him from any elevation risk posed by the distance of almost 4 feet from the floor to surface of loading dock, as plaintiff remained on loading dock while cart became wedged in the gap between truck bed & loading dock & no evidence such gap large enough to pose significant risk of a fall to floor. Sawczyszyn v. NYU, 158 AD3d 510;

Second Dept.

Second Dept. 2018. 240(1) Dismissed. Plaintiff’s Entire Body Too Large to Fit Through Rebar Grid Openings. Plaintiff, employed as a steamfitter, working at construction site.  Plaintiff fell while attempting to step up onto a rebar grid located 18 inches above a corrugated steel decking, where he had been standing.  Although plaintiff’s foot slipped through the openings in the rebar grid, such openings were too small for a person’s body to fall through. Plaintiff testified at his deposition that his entire body could not fit through the openings.  As such, the openings did not present elevation-related hazard to which protective devices enumerated in 240(1) are designed to apply. Johnson v. Lend Lease Constr. LMB, Inc., 164 AD3d 1222;

Second Dept. 2016. 240(1) Dismissed. Fall on to Rebar. Opening Not Large Enough For Plaintiff’s Entire Body to Fit Through The Opening. Plaintiff, a surveyor at a site, was walking across the top of a rebar grid, which was at least 100 feet by 50 feet and 5 feet high.  Such rebar grid had square openings, measuring 12 inches by 12 inches.  Losing his balance, plaintiff fell through one of the square openings of the rebar grid, up to his groin.  240(1) denied as the square openings of the rebar grid were not of a dimension that would have permitted plaintiff’s body to completely fall through and land on the floor below.  As such no elevation related hazard. Vitale v. Astoria Energy , LLC, 138 AD3d 981;

Second Dept. 2013. 240(1) Dismissed. After delivering equipment and supplies to his crew, plaintiff fell partially through an open manhole atop a 10 foot deep precast drainage vault. Accident not arise in context of “special hazards” against which the statute is designed to protect, namely, the exceptionally dangerous conditions posed by elevation differentials at work sites. Not every gravity related accident is within ambit of 240(1). Carey v. Five Bros., Inc., 106 AD3d 938;

Second Dept. 2010.  240(1) Dismissed. While plaintiff standing on top of rebar grid, he suffered a fall, resulting in his body landing on the rebar and his right leg falling through rebar opening. Rebar grid openings not of a dimension that would have permitted plaintiff’s body to fall through & land on the floor below. Avila v. Plaza Constr. Corp., 73 AD3d 670;

Third Dept.

Third Dept. 2019. While plaintiff only partially fell through opening, 240(1) imposed. Opening was of sufficient size that plaintiff could have fallen completely through opening.  While working at an elevation in sandblasting the upper level of as bridge, plaintiff fell through opening in metal decking that was temporarily suspended from the bridge solely for the purpose of enabling completion of the bridge repainting project.  The opening presented elevation-related risk, rather than usual and ordinary danger of working at a construction site as it was sufficient size that plaintiff could have fallen through to a lower level.  There was failure of the suspended metal deck, which was functioning as a scaffold, to provide adequate protection, even though plaintiff did not fall entirely through the opening. Dos Santos v. State of NY, 169 AD3d 1328;

Third Dept. 2012. 240(1) Dismissed. Plaintiff working in room containing an unprotected opening. Plaintiff was install a beam. When he needed to reposition the beam, plaintiff descended his ladder, walked across the floor towards a second ladder, and stepped into unguarded opening. His left leg fell in up to his groin. Existence of lower level below the floor where plaintiff was working, without more, did not create elevation related risk, nor did plaintiff’s mere proximity to the opening give rise to statutory liability. At the time of accident, plaintiff not performing his work at an elevation, rather, he had descended a ladder where he was working & walking across a level, permanent floor, a task which did not warrant use of protective devices enumerated in 240(1). As accident did not result from special elevation hazards envisioned by 240(1), claim was dismissed. Coleman v. Crumb Rubber Mfrs., 92 AD3d 1128;

Fourth Dept. Fourth Dept. 2007. 240(1) Liability Imposed. Although evidence established plaintiff’s feet remained on scaffold as plaintiff fell, such evidence was insufficient to raise issue of fact whether plaintiff actually fell from scaffold as his fall was stopped when a coworker standing on the floor outside the elevator shaft caught plaintiff. Capasso v. Kleen All of Am., Inc., 43 AD3d 1346;

April 10. New York. Labor Law §241(6). Industrial Codes 23-4.2 and 23-4.4 Not Violated. Shoring of Trenches.

23-4.2

Whenever any person is required to work in or is lawfully frequenting any trench or excavation 5 feet or more in depth which has sides or banks with slopes steeper than those permitted in Table I of this Subpart, such sides or banks shall be provided with sheeting and shoring in compliance with this Part. Such sheeting and shoring system shall be contact with the sides or banks of such trench or excavation. 

23-4.4. Sheeting, shoring and bracing.

Where any excavation is not protected by sloped slides or banks in compliance with Table I of this Subpart, any person in such excavation shall be protected by sheeting, shoring and bracing in compliance with Tables I, III and IV of this Subpart. Sizes of materials listed in the tables are nominal or trade dimensions.

Veloso v. City of NY, 2026 NY Slip Op 02167, decided April 9, 2026, First Dept. Plaintiff struck by a rock while working in a trench. Plaintiff working on excavation of a trench in which utility lines were to be placed, and on shoring the sides of the trench. Industrial Codes §23-4.2(a) and 4.4(a) were not violated. Plaintiff’s employer had installed shoring along the sides of the trench, his employer’s witness testified to having personally inspected the shoring at the start of plaintiff’s shift, plaintiff himself was actively engaged in the installation of shoring at the time, the shoring was in contact with the sides or banks of the trench & did not give way or collapse, and the front of the trench was being actively being expanded.   

Second Dept. 2011. 23-4.2 Not Violated. No contradicting evidence that measurements of the slope were within OSHA guidelines & excavation not require sheeting or shoring, or to otherwise indicate that angle of the slope or a lack of sheeting or shoring constituted dangerous condition. Plaintiff’s own testimony indicated angle of slope was within guidelines set forth in table I of 23-4.2. Plaintiff walking down a slope of dirt, debris & rock created by excavator.  Ground gave way, causing a fall. Ulrich v. Motor Parkway Properties, 84 AD3d 1221;

23-4.2 Not Apply as Trench Depth Less Than 5 Feet

Second Dept. 2006. 23-4.2 Dismissed. 23-4.2 applies to shoring & stabilization of trenches & excavations 5 feet or more in depth. As co-worker excavated a 3 foot deep trench along a sidewalk with a backhoe, plaintiff, who was working in the trench, struck by a falling segment of overhanging concrete sidewalk slab.  Natale v. City of NY, 33 AD3d 772;

Second Dept. 2001. 23-4.2 Not Apply as excavation less than 5 feet in depth. Magnuson v. Syosset Comm. Hosp., 283 AD2d 404;

Third Dept.

Third Dept. 1997. 23-4.2 Dismissed. 23-4.2 only applies to below grade excavations.  Here, accident at ground level.  23-4.2 dismissed. Friot v. Wal-Mart Stores, Inc., 240 AD2d 890; 

Fourth Dept.

Fourth Dept. 1996. 23-4.2 Inapplicable. 23-4.2 applies to shoring & stabilization of trenches & other excavation work. Plaintiff struck by falling sewer pipe. Coworker slipped while handing down the pipe, dropping the pipe into the trench. Adamczyk v. Hillview Estates Dev. Corp., 226 AD2d 1049;

4.2(a). Soil Composition Second Dept. 2001. 23-4.2(a).  To establish composition of the soil for purposes of determining which 23-4.2(a) specifications applied, expert testimony required. Monsegur v. Modern Comfort Tech, 289 AD2d 307;  

April 10. New York. Labor Law §241(6). Industrial Code 23-4.2(b).  Shoring of a Trench. Code Not Apply as No Sides or Banks Sloped Back From a Trench

Where the sides or banks of a trench or area type excavation may be sloped back without causing subsidence or damage to buildings, structures, utilities, roads, streets, highways or similar facilities, sloping of the excavation sites or banks may be used as protection in lieu of the sheeting and shoring required by this Part, provided such sloping conforms to the values set forth in Table I of this Subpart. Such sloping of the excavation sides or banks may be used in combination with sheeting and shoring. When such a combination is used, a level bench at 24 inches in width shall be left between the toe of the sloped section and the braced section. The sheeting of the braced section shall extend at least 12 inches above the elevation of such level bench.

Veloso v. City of NY, 2026 NY Slip 020167, decided April 9, 2026, First Dept. Plaintiff was struck by a rock while working in a trench. At the time of the accident, plaintiff was working on the excavation of the trench, in which utility lines were to be placed, and on shoring the sides of the trench.

It was held 23-4.2(b) not apply, as there were no sides or banks sloped back from the trench. To the extent plaintiff testified that the front side of the trench was sloped, this was the side that plaintiff’s employer was extending.

Comment. Veloso is the first appellate decision addressing 23-4.2(b).

April 10. New York. Labor Law 240(1) Defense. Installation of Safety Device Contrary to Work Objectives. Case Arose From Excavation Work.

Veloso v. City of NY, 2026 NY Slip Op 02167, decided April 9, 2026, First Dept. Plaintiff was working on the excavation of a trench, in which utility lines were to be placed, and on shoring the sides of the trench. While engaged in such work, plaintiff was struck by a rock while working in the trench.

Dismissing the Labor Law §240(1) action, the decision held, “Notwithstanding the fact that the collapse or cave-in of the side of a trench may evince a failure to provide adequate protection against the risk arising from the physically significant elevation differential, the injury in this case was not caused by such risk.” Then the Court held, “Because plaintiff testified that he was instructed at the beginning of his shift to move the trench forward, securing the front wall of the trench in the very direction that work was progressing would have been contrary to the objectives of the work plan.” §240(1) cause of action was dismissed.

The decision distinguished Rivas v. Seward Park Hous. Corp., 219 AD3d 59 (1^st Dept. 2023), “Unlike in Rivas, where the shoring on the side of a trench caved in, here the rock that rolled over plaintiff’s ankle came from the particular wall of the trench that was actively being excavated.”

Comment. The accident resulted from ongoing excavation work. To secure the area where the rock fell would have prevented such excavation work from going forward. That is the essence of the defense. Decision also cited Court of Appeals’ decision. Salazar v. Novalex Constr. Corp., 18 NY3d 134 (2011). Other decisions citing this defense are listed below.

Court of Appeals.

Court of Appeals. 2011. Installation of a protective device would have been contrary to the objectives of the work plan in the basement. Salazar testified he was directed to pour & spread concrete over entire basement floor, a task that included filling the trenches. Put simply, it would be illogical to require owner or GC to place a protective cover, or otherwise barricade, a 3 or 4 foot deep hole when very goal of the work is to fill that hole with concrete. It would be impractical & contrary to the work at hand to cover the area where the concrete was being spread, since the settling of concrete requires the work of leveling be done with celerity. Salazar v. Novalex Constr. Corp., 18 NY3d 134;

First Dept.

First Dept. 2024. Rebar. Plaintiff failed to establish entitlement to summary judgment, as there was testimony supporting defendants’ contention that the laying of rebar, in which plaintiff was engaged, was to be followed by pouring of concrete, which would render placing plywood or wooden planks on top of that rebar impractical & contrary to the very work at hand to cover the area where the concrete was being spread. Marte v. Tishman Constr. Corp., 223 AD3d 527; 

First Dept. 2017. Elevator. Securing Device Would Have Defeated Purpose of Plaintiff’s Work. Plaintiff, Elevator mechanic, injured when elevator he was repairing suddenly dropped with him inside. Here, plaintiff was inside the elevator, riding up and down to test it. To the extent plaintiff may have been engaged in repair, within the meaning of 240(1), statute not apply, as any securing device would have defeated the purpose of the work, by precluding him from riding the elevator. Versace v. 1540 Broadway LP, 148 AD3d 483;

First Dept. 2017. No Evidence Securing Device Would Have Defeated Task of Removing Lighting Bar. Plaintiff was removing furniture from exhibition booth at conclusion of trade show when a lighting bar simultaneously being removed from the top of the booth by electricians fell, striking him in the head.  In view of the weight of the lighting bar, court could not conclude the distance it fell was de minimis.  Nor did defendants demonstrate that any securing device would have defeated the task of removing the lighting bar. Rutkowski v. NY Convention Ctr. Dev. Corp., 146 AD3d 686;

Second Dept.

Second Dept. 2013. Not Contrary to Objectives of Work Plan. Plaintiff, employee of superstructure contractor, injured while stripping wooden forms that served as frames into which concrete was poured to form the reinforced concrete columns of a building under construction.  Accident occurred after he had plied a piece of wooden form from the concrete column & placed it on the floor.  As he stood up, a separate piece of the form just above the piece he had removed, suddenly fell off the column. Striking him in the face.  There was triable issue of fact whether the falling piece of form was because of the absence or inadequacy of a safety device enumerated in 240(1).  Contrary to defendants’ assertion, the securing of pieces of form to the column would not have been contrary to the objectives of the work plan, as plaintiff testified the forms were cut into sections & that he was removing a different section than the one that fell on him. Ross v. DD 11^th Ave., LLC, 109 AD3d 604;

Fourth Dept.

Parsons v. County of Steuben, 240 AD3d 1333 (2025). Plaintiff & coworkers were cleaning up worksite at end of the day & such work included taking down ladders. 2 coworkers were taking down 40-foot extension ladder leaning against wooden telephone pole. One coworker untied the top & middle straps securing ladder to the pole as he descended the ladder. Other coworker then retracted ladder as other coworker held the ladder. Either first coworker holding the ladder, or the ladder itself, or both, slipped on ice, causing ladder to fall & strike plaintiff who was standing nearby.

Appellate Court held falling ladder did not require securing & that securing it would have been contrary to the objectives of the work plan. “It would be illogical to require plaintiff’s coworkers to secure to a pole a ladder that they were removing from that pole.” There was evidence the straps had to be removed in order to retract the ladder & that no protective devices could have been used to prevent ladder from falling as it was being taken down.

Expert. Decision held that although plaintiff’s expert accurately stated no mechanical means of securing the ladder to the pole were used at the time it fell, expert did not opine that any such means should have been used or could have been used as the ladder was taken down.

Comment. The Court agreed that while it was alleged the falling ladder was not secured, securing the ladder was “contrary to the objectives of the work plan.” In other words, the ladder had to be “un-secured” from the telephone pole in order for the worker on the ground to retract the ladder.

April 9. New York. Appellate Court: Plaintiff’s Unilateral Decision to Use Extension Ladder Missing Its Bottom Half, Not Proximate Cause of Accident. Plaintiff Absent The Day in School Where It Was Taught Extension Ladder Missing Its Bottom Half, Unsafe For Climbing.

Moreno-Santos v. Real Bldrs. Inc., 2026 NY Slip Op 02158 (1st Dept. 2026), decided April 9, 2026. Plaintiff testified that while working as a mason employed by North South Masonry, unsecured ladder “suddenly slipped out from under him while he was standing on it to finish work on a block wall.” The subject ladder was only the upper part of an extension ladder that was separated from its bottom part. Plaintiff found such ladder at the work site. Such testimony established a prima facie case for summary judgment.

Appellate Court rejected defendants’ argument that plaintiff was the sole proximate cause of the accident as there was no evidence plaintiff disobeyed an instruction not to use such ladder or an instruction to use an adequate ladder available to him. Rather, plaintiff testified he requested a ladder from his foreman but was told he would have to find one himself. As plaintiff did not have the key to the shanty containing North South Masonry’s ladders, he used the dismantled extension as there were no other ladders to be found on the work site.

Appellate Court’s decision cited Tuzzolino v. Consolidated Edison Co. of NY, 160 AD3d 568 (1^st Dept. 2018), where it was held plaintiff “established prima facie violation of Labor Law §240(1) through his testimony that he was caused to fall when the unsecured ladder on which he was standing suddenly slipped out from underneath him. Decision held there was no evidence “there were other readily available safety devices that would have been adequate for plaintiff’s work.”  In Tuzzolino, the decision provides no indication the ladder had been dismembered in half or other “clues” the ladder was not for use.

Comment. While plaintiff did not disobey instructions of a superior at the work site, he actually used the upper part of an extension ladder completely separated from its lower half. The defective and unsafe condition of such ladder was obvious. There is no evidence plaintiff was instructed to use such ladder.

Appellate decision states, “[plaintiff] reluctantly used the partly dismantled extension ladder because there were no other ladders to be found on the job site.” Of course plaintiff was “reluctant” to use a ladder that had been cut in half.  Who would not be “reluctant” to have to climb half a ladder. But plaintiff’s alleged “reluctancy” aside, his use of that ladder was sole proximate cause of the accident.  Anyway, how did the appellate court know plaintiff was “reluctant” to use the ladder? The decision cites no deposition testimony.

While the appellate decision notes “other trades used the unsafe ladder for weeks before” plaintiff’s accident, such use cannot act as a defense to plaintiff knowingly using a ladder cut in half. Plaintiff’s testimony of not having a key to the shanty where ladders were kept, by itself, makes no sense. The appellate court did not even raise the point of whether plaintiff asked for a key and was told he could not access the shanty. The decision does not provide that plaintiff was unaware of the shanty or its location at the site. If ever there was a case where a plaintiff was the sole proximate cause of the accident, this was it.

April 9. New York. While Not Disputed Plaintiff Fell From Elevated Height, Issue of Fact Was Not Whether Plaintiff Disobeyed Instructions, But Whether Platform in Place Where Plaintiff Could Work.  

Aguila v. TSTY Owner LLC, 2026 NY Slip Op 31324(U), decided March 27, 2026, Hon. Lynn Kotler, Supreme Court, NY County. Plaintiff working as part of a team to disassemble a loading dock platform of an external hoist. Such platform comprised of wooden planks nailed to a series of crossing steel beams. Plaintiff’s task was to receive platform’s disassembled components from his coworkers & load them into a truck, parked adjacent to loading dock platform. Some of platform’s wooden planks had already been removed, exposing narrow steel beams beneath, 4 feet above the ground. Plaintiff only provided hard hat & pair of gloves.

Plaintiff testified he was instructed to stand on such exposed steel beams while performing such work. When plaintiff’s foot slipped off the exposed beam, he fell into a gap between the beam & the next adjacent beam. Plaintiff’s expert witness, Kathleen Hopkins, opined that had there been a stable surface from which to work, such as a scaffold platform underneath exposed beams, it would have prevented the accident.

While motion court held plaintiff established a prima facie case for summary judgment, it was held affidavit of plaintiff’s foreman raised issue of fact. Foreman stated contrary to plaintiff’s deposition testimony that the foreman instructed him to stand on the exposed beams, that he instructed plaintiff multiple times to work from a wooden platform adjacent to exposed beams that was constructed for specific purpose of disassembling the loading dock. Foreman stated plaintiff ignored his instructions & disobeyed the foreman’s subsequent instructions to come down from the exposed beams & work from the wooden platform.

Motion Court held foreman’s affidavit raised issue of fact whether plaintiff’s actions were the sole proximate cause of the accident. It was up to trier of fact as to whether plaintiff knew he had an adequate safety device available to him; that he decided against using such safety device; and that had plaintiff used the safety platform, the accident would not have occurred.

Comment. It has been held by appellate courts that where a plaintiff’s failure to follow instructions results in an accident, such failure amounts to comparative negligence, which is not a defense to §240(1) cause of action. Here, the foreman’s affidavit contradicted plaintiff’s deposition testimony that no safety devices for falls from a height were provided. It also contradicts the opinion of plaintiff’s expert witness, Ms. Hopkins as to lack of a scaffold. As such, the issue of fact is not whether plaintiff failed to follow instructions but rather whether a safety device, such as the platform, was in place. Such argument likely results in the decision being affirmed should plaintiff appeal.        

April 9. New York. LABOR LAW §240(1) LIMITED to ACCIDENTS OCCURRING at a BUILDING or STRUCTURE.

Comment. For plaintiff to be able to be within 240(1), accident must have occurred in a building or structure.  “Structure” was defined by the Court of Appeals as

“Any production or piece of work artificially built up or composed of parts joined together in some definite manner.”

Courts have interpreted meaning of “structure” broadly.

McCoy v. Kirsch, 99 AD3d 13 (2^nd Dept. 2012), noted, “the word structure in its broadest sense includes any production or piece of work artificially built up or composed of parts joined together in some definite manner.”  “Structure” is defined by Black’s Law Dictionary as,

1. framework or construction with identifiable elements that give stability and form, able to resist strains and stresses.

2. Something built on a parcel of real estate which can be small (such as a shed) or large (such as a ten-story building).

Judicial decisions below define a “structure” as something built or placed on a parcel of land. An electric sign extending across a building façade; a water tank on a building; telephone/utility pole; manhole; truss system; power screen used at gravel pit; a filter room at cement plant; hot water heater; and warehouses shelves.  What these objects have in common is a fixed position.  Such objects do not move from place to place.  They are stationary. 

September 10, 2025. Kennedy v. Pioneer Works Art Found., 2025 NY Slip Op 33380(U), Supreme Court NY County, Hon. Mary Rosado. Plaintiff, an artist, was constructing exhibit called “The Box” in the garden of 169 Pioneer Street in Brooklyn. “The Box” was a large, transparent box made of glass surrounded by a metal frame meant to reflect solitary confinement.  NY Tempering delivered glass needed to construct the exhibit. Using a forklift, Pioneer employees unloaded the glass onto an A-frame cart. Plaintiff was providing support & guidance to Pioneer employees moving the A-frame cart. Suddenly, the A-frame cart tipped over & the cart & glass fell on plaintiff.  Plaintiff testified the cart tipped over as it was unstable due to the weight and size of the glass.

It was held the multi-day project of constructing a large glass & metal structure in the garden of the premises, constituted the building of a structure within the meaning of §240(1). For purposes of §240(1), a “structure” means a production or piece of work artificially built up or composed of parts joined together in some definite manner.”    

Other Decisions Interpreting “Structure” in Context of §240(1)  

Court of Appeals. 1987. 240(1) Not Dismissed. Electric sign extending across the façade of the premises at a height of 15 feet & was affixed so as to be held flat against the building wall, was part of the building for purposes of 240(1). Decedent was attempting to repair the sign. Izrailev v. Ficarra Furniture of Long Island, Inc., 70 NY2d 813;

“Structure” Under 240(1)

Water tank on building.

Telephone pole.

Truss system.

Warehouse Shelves.

Manhole.

Filter room at cement plant.

Chupah.

Hot water heater.

Power Screen used at gravel pit.

Utility pole.

Not a “Structure” Under 240(1).

Scenery panels to amusement ride.

Debris.

Tree.

First Dept.

First Dept. 2002. Water tank on building roof part of building was a structure. 240(1) Liability Applied. Plaintiff from a ladder attached to building’s roof-top water tank.  Caraciolo v. 800 Second Avenue Condominium, 294 A.D.2d 200;

First Dept. 2021. Telephone Pole is “Structure” within 240(1). Villalta v. Consolidated Edison Co. of NY, 197 AD3d 1078;  

First Dept. 2017. Plaintiff engaged in setting up truss system, which was a “structure” under 240(1). When plaintiff fell, plaintiff was helping set up the second tier truss system of a sponsorship booth. The truss system constituted a structure because viewed as a whole it extended the height of the booth from 10 feet to 16 feet, was comprised of several interlocking parts that were connected in specific way, and required use of forklift and several people to construct.  Although this truss system was being set up to allow for the display of branding, it was not a decorative modification as the work entailed far more than mere change to the outward performance of the booth and instead constituted an alteration to a pre-existing structure. Perez v. Beach Concerts, Inc., 154 AD3d 602; 

Truss. A framework, typically consisting of rafters, posts and struts, supporting a roof, bridge or other structure.

First Dept.  2015. Warehouse shelves “structure” under 240(1). 240(1) Liability Imposed. Plaintiff fell from unsecured ladder while working in a warehouse and such work included removal of heavy machinery and shelves that ran floor to ceiling across 3 second floor walls, each 50 feet long and 8 feet high and bolted to the floors and walls.  Removed shelving was loaded into cages, which were then lifted by pallet jack, moved to the edge of the second floor and lowered to first floor by forklift.  The dismantling of the shelves was sufficiently complex and difficult task to render the shelving a “structure” within 240(1).   Also, such work constituted “demolition” for 240(1) and 241(6). Phillips v. Powercrat Corp., 126 AD3d 590:

First Dept. 2013. Manhole a “Structure.” Dos Santos v. Consolidated Edison of NY, Inc., 104 AD3d 606;

First Dept. 2010. Filter Room a Structure. Plaintiff, while transporting dust filters from cement plant’s rooftop structure to ground level garage where filters were to be cleaned, fell to lower level roof. In removing 6 foot long filters from elevated structure and transporting them to ground level, plaintiff engaging in activity that encompassed an ever present elevation-risk that the safety devices enumerated in 240(1) were designed to protect against. Also, “filter room” was clearly a “structure” for purposes of 240(1). As no safety devices provided to plaintiff, 240(1) imposed. Parraguirre v. 27^th St. Holding, LLC, 71 AD3d 594;

Second Dept.

Second Dept. 2014.  Warehouse Shelves are a “Structure.” Plaintiff fell 12 fell from one of shelves he was dismantling at warehouse.  Shelving was being dismantled & reassembled in different portion of warehouse, was free-standing, some of which required use of a hammer to separate the pieces. Shelves constituted a “structure” under 240(1) as they were composed of component pieces (metal grates and cross bars) attached in a definite manner. Kharie v. South Shore Record Mgt., Inc., 118 AD3d 955;

Second Dept. 2012. Chupah is “Structure.”  The Court of Appeals in Caddy v. Interborough RT Co., 195 NY 415 (1909), held the word “structure” in its broadest sense includes any production or piece of work artificially built up or composed of parts joined together in some definite manner. Plaintiff was disassembling a chupah, which was 10 foot high device made of pipe, wood and a fabric canopy at its top. Plaintiff was working on a ladder and the ladder skipped, causing a fall. A ladder plus various hand tools were required to assemble and disassemble chupah’s parts in a process that would take an experienced worker more than a few minutes to complete. Chupah is more akin to things and devices which courts have recognized as structures.  McCoy v. Abigail Kirsch at Tappan Hill, 99 AD3d 13:

Chupah. Canopy under which the bride and grom stand during a Jewish wedding ceremony.

Third Dept.

Third Dept. 2021. Hot Water Heater a “Structure.”  A “structure” includes “constructs” distinct from the building itself. The hot water heater was situated above one of the store’s refrigerated units. The heater did not rest directly on top of the freezer, but on platform suspended a few inches above the freezer by cables attached to the ceiling. The heater had a gas turnoff adjacent to it and an electric breaker switch on the actual heater. A shelf ran along top of freezer unit that protrudes out about 3 feet from the freezer, 12 feet above the floor surface. To access the heater, it was necessary to place a ladder against the shelf, and step over the shelf to reach the heater platform. In the Court’s view, this configuration constituted a structure within 240(1). Eherts v. Shoprite Supermarkets, Inc., 199 A.D.3d 1270;

Third Dept. 2012. Utility pole with its attached hardware, cable & support systems constitutes a structure within the meaning of Section 200. Gunderman v. Sure Connect Cable Installation, Inc., 101 AD3d 1214;

Third Dept. 2005. “Power Screen” a “Structure” under 240(1). Plaintiff’s employer leased a site for the purpose of developing it as a gravel pit. Plaintiff’s employer brough a power screen to the site. Power screen is used to screen gravel or make sand, operates by taking material dumped from pay loader into a hopper end, sending it up a conveyor belt onto power screen, then shaking & vibrating the material to separate different sizes of stone. Upon arrival of a chute that was to be attached to conveyor end of power screen, plaintiff attempted to attach the chute by himself. He did this by raising the chute in a front-end loader and trying to attach its 2 connectors to the power screen. While standing with one foot in the loader’s bucket & one foot on the chute, 15 feet in the air, plaintiff fell. Court of Appeals has held the word “structure” in its broadest sense includes any production or piece of work artificially built up or composed of parts joined together in some definite manner.  Under such broad definition, the power screen qualifies as a “structure” under 240(1). Hodges v. Boland’s Excavating & Topsoil, Inc., 24 AD3d 1089;

Not a “Structure” Under 240(1)

Comment. Items below were held not to be constitute a structure. 240(1) dismissed.

First Dept.

First Dept. 2011. Scenery Panels to Amusement Ride Not a “Structure” Under 240(1). Employee of traveling carnival was injured while preparing amusement ride for use. Plaintiff was installing scenery panels as a backdrop to the ride, which came prebuilt. Plaintiff not engaged in erection of a structure under 240(1). Allen v. City of NY, 89 AD3d 406; 

Second Dept.

Second Dept. 2017. Debris Not a “Structure” Under 240(1). Plaintiff hired to serve as maintenance worker at the camp. Plaintiff injured cutting & clearing a downed tree at the camp. The mound of old tennis court clay, sand, rocks and other construction debris was not a “structure” under 240(1).  Derosas v. Rosmarin Land Holdings, LLC, 148 AD3d 988;

Second Dept. 2009. Tree Cutting. Tree Not a “Structure” Under 240(1). While standing 10 feet above the ground, cutting down a tree on defendant’s property, plaintiff struck by a tree limb. Such tree removal work not within 240(1) protection as a tree is neither a building nor structure. Also, plaintiff was performing routine maintenance outside of a construction or renovation context. Morales v. Westchester Stone Co., Inc., 63 AD3d 805;   

Third Dept. Third Dept. 2015. Tree Not a Building or Structure.  240(1) Dismissed. Plaintiff’s supervisor, engaged in tree cutting work, caused section of tree trunk to strike plaintiff who was walking underneath where supervisor was working.  Section 240(1) dismissed as tree is neither a building or structure and neither tree removal nor tree cutting is an enumerated activity of 240(1).  Cicchetti v. Tower Windsor Terrace, LLC, 128 AD3d 1262;

April 8. New York. COLLAPSE OF PERMANENT PARTS OF BUILDINGS. Labor Law §240(1) Liability

Comment. Where permanent part of building collapses, for there to be 240(1) liability there must be evidence such collapse was foreseeable of elevation related risk to the building owner or GC. Such accidents largely arise from demolition operations. Demolition is enumerated activity under 240(1) and 241(6).

240(1) Liability Imposed

Collapsed decking;

Ceiling collapse;

Drop ceiling;

Floor collapse;

Newly installed pipe in building.

Foreseeable Risk of Building Collapse. Evidence of Loss of Structural Integrity.

First Dept. 2014. 240(1) Liability Imposed. Plaintiff in a case where there was collapse of permanent structure must establish collapse was “foreseeable,” not in strict negligence sense, but in sense of foreseeability of exposure to elevation-related risk. Architect’s field report dated 7 days prior to accident of unsafe conditions & building completely open to elements. NYC violation issued date of accident described conditions as hazardous & cited failure to carry out demolition operations in safe & proper manner. Such violation noted removal of interior bearing & non-bearing partitions throughout had caused floor joists to collapse from top of building to ground level at center. Such violation ordered all work stopped. Plaintiff’s expert engineer noted that one week before the collapse a number of timber joists observed to be severely sagging, indicating loss of structural integrity. Garcia v. Neighborhood Partnership Hous. Dev. Fund Co., Inc., 113 AD3d 494;

COLLAPSED DECKING

Comment. 240(1) imposed wheredecking served as functional equivalent of ladder at the time of the accident. As such decking was a safety device, subject to 240(1). Was the decking properly secured? “Fact that it was to become permanent landing for stairway in future irrelevant.”

First Dept.

First Dept. 2014. 240(1) Liability Imposed. When plaintiff stepped onto metal decking he had just laid in place but not yet fastened, beam beneath metal decking shifted, causing a fall from first floor to the cellar. While plaintiff wearing a harness that was tied to retractor at time of the fall, it provided no protection. Metal deck flooring & beam on which plaintiff was standing functioned as elevated platform. Defendants’ failure to secure the beam was proximate cause of accident. Bisram v. Long Is. Jewish Hosp., 116 AD3d 475;

Second Dept.

240(1) Liability

Second Dept. 2012. 240(1) Liability Imposed. Plaintiffs, ironworkers, were injured while working on 42^nd floor during construction of a building. Plywood decking collapsed underneath them as they were standing on it. Gambale v. 400 Fifth Realty, LLC, 101 AD3d 943;

Second Dept. 2012. 240(1) Liability Imposed. Accident occurred when the floor, which consisted of sheet metal decking, collapsed underneath plaintiff as he walked on it. Chase v. Arnell Constr. Corp., 98 AD3d 553;  

Second Dept. 2007. 240(1) Liability Imposed. Decking was a safety device. Plaintiff, iron worker, ascending flight of unfinished stairs from second to third floor, when he stepped on metal decking or intermediate platform between the 2 floors & went straight through to first floor. Such metal decking was safety device within 240(1). As the fact that it was to become permanent landing for stairway in future irrelevant. Plaintiff not sole proximate cause as he did not engage in unforeseeable, reckless conduct nor misused safety device provided to him. Beharry v. Public Stor., Inc., 36 AD3d 574;  

Not Recalcitrant Worker

Second Dept. 2010. 240(1) Liability Imposed. Plaintiff injured at construction site when sheet metal decking collapsed underneath him, causing a fall 13 feet to the basement. Plaintiff established 240(1) violation proximate cause of accident. Defendants failed to present evidence of recalcitrant worker.  No evidence plaintiff provided with certain safety devices, that such devices readily available for his use & plaintiff specifically instructed to use such devices but chose for no good reason to disregard such instructions. Zong Mou Zou v. Hai Ming Constr. Corp., 74 AD3d 800;

Fourth Dept.

Fourth Dept. 2022. Issue of Fact. Conflicting deposition testimony of whether deck collapsed. Issue of fact existed whether alleged accident, a fall resulting from collapse or dislodging of a deck, occurred at all.  Defendant’s project supervisors both testified at their depositions that when they inspected & photographed deck on morning after alleged accident, they observed no evidence deck structure had failed, i.e., no indication a joist had fallen or ledger board had dropped three or four feet or deck had ever fallen down. Such supervisors’ testimony contradicted foreman’s testimony that he & his crew returned following morning after accident to repair collapsed deck, a job the foreman estimated would have taken a full day to complete. Foreman’s later deposition testimony that it was possible the repair occurred on the day of accident, conflicted with his earlier testimony. Hann v. S&J Morrell, Inc., 207 AD3d 1118;

CEILING COLLAPASE

Comment. If no foreseeability of ceiling collapse, 240(1) is dismissed. Where a 240(1) is alleged upon some defect with a permanent part of a building, plaintiff must show there was foreseeability of defective condition. Ceiling a part of permanent structure of the building, not a falling object being hoisted or secured. Accidents involving ceiling collapses usually arises in demolition operations.

May Provide Foreseeability & 240(1) Liability

Water stains on the ceiling.

Entire area, including ceiling, in a state of demolition.

Ceiling not braced or shored during demolition operations.

First Dept.

Ceiling Collapse Foreseeable as Ceiling Being Demolished

First Dept. 2021. 240(1) Liability Imposed. Plaintiff performing demolition using motorized chipping hammer to remove part of wall directly adjacent to ceiling, when a concrete slab from ceiling collapsed on him, knocking him 5 ½ feet off a scaffold to ground. Plaintiff established collapse foreseeable. The wall plaintiff was removing was directly adjacent to the slab that collapsed. Photos show entire area, including ceiling, was in partially demolished condition & it was reasonable plaintiff’s work would create a risk of collapse. Mena v. 485 Seventh Ave. Assoc., 199 AD3d 420; 

First Dept. 2020. 240(1) liability Imposed. Ceiling Not Braced During Demolition. Ceiling not target of demolition at time of accident. Comparative negligence not defeat 240(1) action.Collapse of ceiling not braced nor shored during demolition operations. Regardless of whether entire ceiling or only portion of it collapsed, ceiling not intended target of demolition at time of accident. Plaintiff descended from a ladder, at his supervisor’s instruction, to remove sprinkler hook. While plaintiff may have pulled on the ceiling with a hook while attempting to remove sprinkler hook, it amounts to comparative negligence, which is not a defense to 240(1) cause of action. Sinchi v. HWA 1290 III LLC, 184 AD3d 408;

Defendant’s Motion Denied.  Whether Constructive Notice of Risk of Ceiling Collapse.

First Dept. 2020. Issue of Fact. Bathroom ceiling collapsed on plaintiff during course of work in renovating apartment. To prevail on 240(1), plaintiff must show failure of structure foreseeable risk of task he was performing, creating a need for protective device of kind enumerated in 240(1). Issue of fact whether ceiling in such a state of disrepair due to water damage that plaintiff’s work exposed him to foreseeable risk of injury from elevation related hazard. As evidence of water stains on bathroom ceiling could provide constructive notice of dangerous condition, defendant’s summary judgment motion on 240(1) action denied. Clemente v. 205 W. 103 Owners Corp., 180 AD3d 516;

Drop Ceilings. Temporary Ceilings.

Issues of Fact

Second Dept. 2019. Plaintiff preparing cables & wires for installation of video surveillance system at school. At time of the accident, plaintiff was running wires in drop ceiling. Plaintiff alleged ladder unsecured & when he reached to grab wires to pull them down from the ceiling, ladder shifted. Plaintiff alleged he grabbed onto a hole in the wall & able to stabilize ladder, but in the process sustained injury. Plaintiff testified no one holding ladder. However, coworker testified he was holding ladder when he felt a jolt. Whether ladder was being stabilized at time of accident is issue of fact. Lozada v. St. Patrick’s RC Church, 174 AD3d 879;

Second Dept. 2012. 240(1) Issue of Fact.  Plaintiff established he fell off scaffold because temporary ceiling collapsed. Owner raised issue of fact of whether plaintiff was provided with safety harness that was secured by a lanyard with appropriate anchor. Further, there was deposition testimony that plaintiff climbed down the scaffold, rather than using A-frame ladder secured to the scaffold and in so doing loosened a pole shore securing the temporary ceiling, causing him to fall. Allan v. DHL Express (USA), Inc., 99 AD3d 828;  

FLOOR COLLAPSE

Comment. Foreseeability. Where a floor is permanent part of building or structure, for 240(1) liability to be assessed, building or structure owner must have had notice of dangerous condition with the floor prior to accident. “Plaintiff’s deposition testimony shed little light on condition of floor prior to its collapse.” Were there cracks in the floor before the accident?

Even if a permanent floor, there can still be 240(1) liability.

“Even if, as defendants asserted, subfloor was a permanent structure, in light of building’s condition as depicted in photographs taken soon after the accident & that plaintiff was engaged in pulling up nailed boards from the subfloor using a crowbar, accident was foreseeable.”

240(1) Dismissed

Collapsing floor not caused by plaintiff’s work.

No evidence of foreseeability of such collapse.

Falling wall onto floor caused floor to collapse.

Other safety measures of 240(1) would not have prevented collapse.

First Dept.

First Dept. 2024. 240(1) Liability Imposed. Foreseeability. Demolition work required removal of AC units, ducts & other large mechanical equipment from space on 11^th floor. Such removal work resulted in numerous exposed holes where such units, ducts & equipment were previously located. While walking along this area, a 12 inch by 12 inch section of the floor collapsed beneath him.  Plaintiff’s right leg fell through the hole and he used his arms to prevent from falling through the hole. Such area was a patch installed at an unknown time prior to the project. Plaintiff was working in a space approximately 8 feet from the floor below & as such was exposed to the effects of gravity. The affixing of harnesses & safety lines attached to a safe structure are the type of safety devices envisioned by 240(1) to prevent a worker from falling through a collapsing floor. To establish foreseeability, a plaintiff need not demonstrate that the precise manner in which the accident happened, or the injuries occurred were foreseeable; it is sufficient that plaintiff demonstrate the risk of dome injury from defendant’s conduct was foreseeable. This foreseeability analysis equally applies to the partial collapse of permanent structure. Plaintiff must simply demonstrate it was foreseeable the task being performed created exposure to elevation related risk. Ciaurella v. Trustees of Columbia Univ. in the City of NY, 2024 NY Slip Op 03455;

First Dept. 2024. 240(1) Liability Imposed. While plaintiff engaged in demolition of flooring, a subfloor collapsed, causing a fall several stories & onto a scaffold. Even if, as defendants asserted, subfloor was a permanent structure, in light of building’s condition as depicted in photographs taken soon after the accident & that plaintiff was engaged in pulling up nailed boards from the subfloor using a crowbar, accident was foreseeable. As defendant’s expert’s opinion was based on photos taken at some unspecified time prior to the accident, when the building did not resemble the condition it was when the accident occurred, not raise issue of fact. Mata v. 371 1^st St., LLC, 226 AD3d 569;  

First Dept. 2020. Issue of Fact. Defendants’ 240(1), 200 & Common law negligence claims denied. Issue of fact whether collapse of a floor was foreseeable. Testimony of prior cracks in flooring & plaintiff’s expert’s opinion that a proper inspection would have revealed condition of floor as well as foreseeable risk of floor capacity overloading & resulting collapse of floor. Sinera v. Bedford-Webster LLC, 187 AD3d 621;

No Evidence of Foreseeability of Floor Collapse

First Dept. 2008. Plaintiff’s 240(1) Motion Denied. Issue of foreseeability of permanent floor. Plaintiff fell through the second floor while engaged in demolition work at a building. Issue was whether plaintiff exposed to elevation related risk when he walked across a permanent floor collapsing underneath him. Plaintiff must establish collapse of floor was foreseeable. Plaintiff failed to show collapse of floor was foreseeable. Plaintiff’s deposition testimony shed little light on condition of floor prior to its collapse. He only testified he was walking on clean straight floor in which there were no holes. While plaintiff stated in affidavit that portions of floor were in decay, rotted, he failed to provide which portions of floor were in such condition. Jones v. 414 Equities LLC, 57 AD3d 65;    

Newly Installed Pipe in Building

First Dept. 2024. Plaintiff, a steam fitter, had just finished installing a run of fire suppression system piping when a rod and shield affixing one of the segments of the pipe top the ceiling broke free & pipe fell onto his neck & shoulder. Plaintiff established 240(1) liability by submitting evidence in the form of deposition testimony, coworker’s affidavit and an employee claim form, showing the accident involved a falling object as well as a fall from an elevation caused by inadequate safety devices.  It is not necessary that the falling object be in the process of being hoisted or secured.  Nor can the pipe, which was installed by plaintiff moments before it fell on plaintiff, be considered a permanent part of the building. Molina v. 114 Fifth Ave. Assoc., LLC, 2024 NY Slip Op 05058; 

Issue of Fact Whether Recalcitrant Worker

First Dept.

First Dept. 2008. Issue of Fact as to Cause of Fall & Whether Recalcitrant Worker. Evidence, based on plaintiff’s own testimony, not establish accident occurred when he was standing on floor of soffit interior that collapsed beneath him. Rather, it appeared he was standing on steel beam within soffit’s interior, which did not shift, break or collapse when he fell. Issues of fact whether plaintiff was recalcitrant worker or sole proximate cause of accident, including whether he was wearing safety devices provided by defendants that he unilaterally decided to discard in interest of completing his task more quickly. Christiano v. Random House, Inc., 51 AD3d 579; 

Second Dept. Second Dept. 2007. Issue of Fact. Temporary flooring collapse. Stacking of cinder blocks. Plaintiffs were employees of Tamco Corp, & stacked cinder blocks in piles on temporary corrugated metal flooring that was laid over what was to become fifth floor of building. Temporary floor collapsed as did the floor underneath that floor. While collapse of temporary floor was 240(1) violation, defendant’s professional engineer, opined 240(1) violation not proximate cause of accident as floor collapse resulted from stacking of cinder blocks in tall towers in a concentrated area & other safety measures would not have prevented the collapse.  As such, issues of fact existed. Kok Choy Yeen v. NWE Corp., 37 AD3d 547;

April 8. New York. FIRE ESCAPE FALLS. Labor Law §240(1) Liability Imposed.

Comment. Safety devices such as safety harness or scaffold is not needed when working on a fire escape. If you suffer a fall on fire escape steps, you fall onto a step and could fall down more steps. But you never lose contact with the steps, meaning there is no fall from an elevated height. There are no enumerated safety devices of §240(1) preventing such a fall (hoist, stay, ladder, slings, hangers, blocks, braces, irons, ropes).

§240(1) liability should be interpreted as imposing liability in those instances when a worker loses physical contact with an elevated surface from a fall.      

First Dept.

First Dept. 2026. Decided April 7, 2026.  Permanent Fire Escape Ladder. 240(1) Not Dismissed. Plaintiff testified he was welding a handrail between the 10^th & 11^th floors on a fire escape when he slipped and fell down several freshly painted steps. Court held, “plaintiff established the fire escape was an elevated surface on which he was required to work, requiring provision of adequate safety device.” Plaintiff was not provided any safety device to protect him from an elevation-related risk. Court rejected claims of defendants that the fire escape was not defective & was not used as a safety device. Narvaez v. 12 W. 31^st St. Corp., 2026 NY Slip Op 02069;

First Dept. 2021.Permanent Fire Escape Ladder. 240(1) Not Dismissed. AAD argued that 240(1) claim should be dismissed because the malfunction of the fire escape ladder, which was part of the building’s permanent structure, was not foreseeable. However, a plaintiff in a case involving the collapse of a permanent structure must establish the collapse was foreseeable, not in strict negligence sense, but in the sense of foreseeability of exposure to elevation related risk. Plaintiff’s use of the permanent fire escape ladder to reach the top of the sidewalk shed presented foreseeable elevation related hazard, just as if plaintiff was using an extension ladder. Goya v. Longwood Hous. Dev. Fund Co., Inc., 192 AD3d 581;

First Dept. 2009. 240(1) Liability Imposed. Plaintiff fell 2 stories when fire escape on which was working detached from the building & fell to the ground. 240(1) violation as fire escape was functional equivalent of a scaffold & failed to provide adequate protection for elevation related work. It was necessary for plaintiff to stand on exterior fire escape to remove a window on third floor where he was engaged in demolition work & where ceiling & floor between second & third floors already removed. Fact that fire escape was a permanent rather than temporary structure not warrant different outcome. Gomez v. City of NY, 63 AD3d 511;

April 7. New York. Contractual Indemnification. Appellate Court Erred in Not Dismissing Indemnity Claim as It Was Based on Speculation That Accident Not Result From Overloading of Mini Container.

Jadan v. 414 Gerard Owner, LLC, 2026 NY Slip Op 02063, decided April 7, 2026, First Dept. 414 Gerard Owner, premises owner & GC, Monadnock Construction, sought contractual indemnification from Citywide, who provided the construction site with mini containers to be used for collection of debris. Citywide employee testified that as a matter of practice, Citywide inspected all mini containers & made any necessary repairs before delivering such containers to the work site. Upon delivery to the work site, the customer took possession & became responsible for moving them into the site.

While moving a mini container, plaintiff heard the wheel of the mini container “screech, felt a snag & the mini container then tipped over, falling onto his foot. Immediately after the accident, plaintiff noticed a bent wheel to the mini container.

Citywide’s motion to dismiss the contractual indemnification was denied. Such indemnity provision required Citywide to indemnity the premises owner & GC “for claims arising from, in connection with or relating to the performance of Citywide’s work.” Appellate court held, “Citywide’s work was to supply & deliver mini containers that were free from defects & fit for their ordinary purpose.”

The decision also held, “Citywide’s generalized inspection testimony failed to establish the mini container at issue was defect-free when supplied. Notably, plaintiff testified that the wheel screeched before the mini container tipped over & he noticed a bent wheel immediately thereafter.”

Comment. Here, the premises owner & GC are speculating as to the cause of the defect & ignoring that the defect may have resulted from misuse of the mini container while at the site. The premises owner & GC had to show the mini cart was not overloaded with debris at the time of the accident to obtain indemnification. Such showing would have established the mini container was not being misused. Courts hold speculation cannot defeat summary judgment. Coyle v. Dos Santos, 231 AD3d 573 (1^st Dept. 2024). As such, the third-party action against Citywide for contractual indemnification should have been dismissed.

April 7. §241(6). Industrial Code §23-3.3(c). Continuing Inspections of Hand Demolition.

During hand demolition operations, continuing inspections shall be made by designated persons as the work progresses to detect any hazards to any person resulting from weakened or deteriorated floors or walls or from loosened material. Persons shall not be suffered or permitted to work where such hazards exist until protection has been provided by shoring, bracing or other effective means.

Code Requires Inspection When Structure Weakened by Progress of Demolition. Here, No Demolition, Only Asbestos Abatement Work.

Gonzalez v. 60-74 Gansevoort St. LLC, 2026 NY Slip Op 02061. Decided April 7, 2026, First Dept. §23-3.3(c) requires “only continuing inspections against hazards that are created by the progress of the work. Wilinski v. 344 E. 92^nd Hous Dev. Fund Corp., 18 NY3d 1 (2011). §23-3.3(c) has been constructed as a specific safety rule designed to protect a worker from the hazards created when a structure is weakened by the progress of demolition. As such, such code did not require defendants to inspect the roof’s structural integrity before commencing asbestos abatement work.  

23-3.3(c) Sufficiently Specific to Support 241(6) Cause of Action

First Dept. 1997. Gawel v. Consolidated Edison Co. of NY, 237 AD2d 138;

Second Dept. 2019. Mendez v. Vardaris Tech, Inc., 173 AD3d 1004; 2000. Randazzo v. Consolidated Edison Co., 271 AD2d 667;

Third Dept. 2012. Bolster v. Eastern Building And Restoration, Inc., 96 AD3d 1123;

Fourth Dept. 2003. Bennet v. SDS Holdings, 309 AD2d 1212;  2002. Bald v. Westfield Academy & Central School, 298 AD3d 881;

Comment. §241(6) action must be supported by an Industrial Code that is not a general safety code and is factually applicable to the worksite accident. If not, the §241(6) action is dismissed.  23-3.3(c), under the heading of hand demolition, applies to “Continuing Inspections” against hazards created by progress of demolition work itself.  Requires ongoing inspections during demolition project.

One litigated issue under this subsection is what constitutes “loosened material.” One example, “While broken mirror was hazard arising from “Loosened Material,” it was not “Loosened Material” caused by demolition progress.” Other issues litigated are whether inspections were performed & were such inspections performed by competent workers.

23-3.3(c) Not Dismissed

First Dept.

First Dept. 2021. 23-3.3(c) Not Dismissed. Defendants failed to show compliance with designating persons to conduct mandated inspections.Santana v. MMF 1212 Assoc LLC, 190 AD3d 505;  2010.

First Dept. 2011. 23-3.3(c) Not Dismissed as Issue of Fact. Whether defendant conducted required “Continuing Inspections.” Medina v. City of NY, 87 AD3d 907;

First Dept. 2011. 23-3.3(c) Applied. Removal & dismantling of subway rails is “demolition of structure.”  Evidence supports the view that repeated saw cuts loosened the rail, rendering it unstable.  The stressed rail was the kind of hazard contemplated by Section 23-3.3(c).  Medina v. City of NY, 87 AD3d 907;

First Dept. 2010. 23-3.3(c) Not Dismissed. Project manager’s deposition testimony & her affidavit in support of summary judgment were contradictory as to whether required inspections performed.Vasquez v. Urbahn Associates, 79 AD3d 493;   

Second Dept.

Second Dept. 2018. 23-3.3(c) Not Dismissed. Plaintiff had just walked to area of roof where he was to begin removing asbestos when roof collapsed.  As such, plaintiff established engaged in demolition work. Quizhpi v. South Queens Boys & Girls Club, Inc., 166 AD3d 683; 

Second Dept. 2007. 23-3.3(c) Not Dismissed. Defendants failed to show required inspections were performed.  Balladares v. Admiral Ins. Co., 40 AD3d 667;  2003. 

Fourth Dept.

Fourth Dept. 2009 23-3.3(c) Not Dismissed. Portion of ceiling plaintiff was demolishing collapsed, striking corner of scaffold, causing plaintiff to fall. Gizowski v. State of NY, 66 AD3d 1348;

Fourth Dept. 2002. 23-3.3(c) Not Dismissed. Plaintiff struck by falling piece of glass at construction site. Bald v. Westfield Academy & Central School, 298 AD3d 881;  

Fourth Dept. 2000. 23-3.3(c) Not Dismissed.  Triable issue of fact whether a stairway was a weakened or deteriorated floor or wall requiring stabilization. Stairway plaintiff using collapsed, causing a fall of 15 feet.Sponholz v. Benderson Property Dev., 273 AD2d 791;

23-3.3(c) Dismissed

First Dept. 2021. 23-3.3(c) Not Apply. Hazard created by work itself, not because of structural instability.  Plaintiff injured while removing 200 pound fire damperwhen coworker unable to hold rope attached to fire damper.Mayorga v. 75 Plaza LLC, 191 AD3d 606;

First Dept. 2020. 23-3.3(c) Dismissed. Plaintiff failed to showwhether lack of “Continuing Inspections” proximate cause of accident. Accident occurred when sections of sidewalk shed plaintiff dismantling collapsed onto him. Leveron v. Prana Growth Fund I, LP, 181 AD3d 449.

First Dept. 2017. 23-3.3(c) Dismissed. Factually Inapplicable. Plaintiff Struck by Beam’s Sudden Upward Movement by Kinetic Energy From Release of Tensile Stress in Beam, Not Because of Gravity. Plaintiff engaged in demolition of elevator shaft. He attempted to take down two 12 foot vertical steel beams topped by a horizontal steel beam that was 2 feet long. He cut into the 2 vertical beams until they fell over & the horizontal beam, still attached to the other beams, hit the floor. As plaintiff bent over to sever the horizonal beam from the left vertical beam, the beam sprang up, hitting him in the face. 23-3.3(c) requires inspections during demolition of a structure to detect any hazards resulting from weakened or deteriorated floors or from loosened material, which refers to structural instability caused by progress of demolition.  Quishpi v. 80 WEA Owner, LLC, 145 AD3d 521;

First Dept. 2015. 23-3.3(c) Dismissed. Plaintiff not injured from demolition work. Plaintiff injured in course of replacing component of subway track system. Pol v. City of NY, 126 AD3d 526;

Second Dept.

Second Dept. 2023. 23-3.3(c) Dismissed. Accident caused by actual performance of work & not result of structural instability. Plaintiff struck by piece of wood during partial demolition of house. Reyes v. Sligo Constr. Corp., 214 AD3d 1014; 

Second Dept. 2023. Plaintiff’s motion for 23-3.3(c) denied. Plaintiff failed to establish accident arose from structural instability caused by progress of demolition rather than from actual performance of work.  While demolishing bathroom wall in House, large piece of cement board fell, striking plaintiff, who was standing on ladder.Carranza v. JCL Homes, Inc., 210 AD3d 858;

Second Dept. 2022.  23-3.3(c) Dismissed. Hazard arose from plaintiff’s performance of demolition work itself, not structural instability caused by progress of demolition. After cutting a piece of pergola, the object plaintiff standing on collapsed. Flores v. Crescent Beach Club, LLC, 208 AD3d 560;

Second Dept. 2020. 23-3.3(c) Not Apply. Accident not caused by structural instability that could have been noticed & addressed by further inspections, but resulted from planned performance of removal & repositioning of a cement slab. Gomez v. 670 Merrick Rd. Realty Corp., 189 AD3d 1187;

Second Dept. 2014. 23-3.3(c) Dismissed. Hazard arose from plaintiff’s performance of demolition work itself rather than structural instability caused by progress of demolition.  Plaintiff driving a water truck to spray the site with water.  When driving truck over concrete slab, which constituted concrete flooring of the structure, it gave way, causing truck to fall into basement. Garcia v. Mkt. Assocs., 123 AD3d 661; 

Second Dept. 2010. 23-3.3(c) Not Apply. Hazard arose from actual performance of demolition work, not structural instability caused by progress of demolition.  Plaintiff using jackhammer demolishing wall of a terrace.  A cinder block on which plaintiff was working, fell on his foot. Smith v. NYCHA, 71 AD3d 985; 

Second Dept. 2008. 23-3.3(c) Dismissed. 23-3.3(c) requires continuing inspections against hazards which are created by progress of demolition work itself rather than inspections of how demolition would be performed.The hazard was actual performance of demolition work, not structural instability caused by progress of demolition. Campoverde v. Bruckner, 50 AD3d 836;

Second Dept. 2001. 23-3.3()c) Dismissed. Immediately prior to demolishing a wall upon which numerous mirrors were mounted, plaintiff injured by falling piece of a mirror. Such accident not caused by hazard created by demolition work. Ofri v. Waldbaum, Inc., 285 AD2d 536;

Not Engaged in Demolition Work

Second Dept. 2019. 23-3.3(c) Dismissed. Plaintiff not involved in demolition work.  Rather, plaintiff drilling a hole to install piping for gas boilers.  Demolition defined as “Work incidental to or associated with total or partial dismantling or razing of building or other structure.” Nicola v. United Veterans Mut. Hous. No. 2, Corp., 178 AD3d 937;

Second Dept. 2019. 23-3.3(c) Dismissed. Plaintiff not engaged in demolition work. Plaintiff assisting mason replacing tiles or stones on building façade. Turgeon v. Vassar Coll., 172 AD3d 1134;

Mere Speculation Continuing Inspections Would Have Prevented Accident

Second Dept. 2007. 23-3.3(c) Dismissed. “Mere Speculation.” Plaintiff’s contention that accident caused by defendants’ violation of 23-3.3(c), requiring there be continuing inspections during hand demolition operations, was based on mere speculation. While performing interior demolition work, piece of ceiling collapsed & struck plaintiff. Mercado v. Brooklyn Associates, LLC, 38 AD3d 732;

23-3.3(c) Not Apply to Hazards Pre-Existing Construction Work

Second Dept.

Second Dept. 1979. 23-3.3(c) Dismissed.  23-3.3(c) applies to “Continuing Inspections” against hazards created by progress of demolition work itself. Not address situations where hazard pre-existed demolition work.Fire escape contained latent defect. Monroe v. City of NY, 67 AD2d 89;

No Evidence Continuing Inspections Not Performed

Second Dept. 2011. 23-3.3(c) Dismissed. Plaintiff’s motion offered no evidence defendants failed to perform required inspections. Martins v. Board of Education of City of NY, 82 AD3d 1062;

No Demolition in Accident Area

Second Dept. 2006. 23-3.3(c) Dismissed. No hand demolition occurred in staircase area where plaintiff fell through to floor below. Gonzalez v. Pon Lin Realty Corp., 34 AD3d 638;  

Third Dept.

Hazardous Condition Created by Work Itself, Not Structural Instability.

Third Dept. 2012. 23-3.3(c) Dismissed. Accident not caused by structural instability that could have been noticed & addressed by further inspections. Rather, accident resulted from planned performance of removing a doorframe from wall, lowering it to waist height & purposefully dropping it to floor.  Bolster v. Eastern Building And Restoration, Inc., 96 AD3d 1123;   

“Loosened Material”

23-3.3(c) Dismissed. Defendant Failed to Show a “Loosened Material.”

First Dept. 2012. 23-3.3(c) Not Apply. While broken mirror was hazard arising from “Loosened Material,” it was not “Loosened Material” caused by demolition progress.  This loosening material might evade notice until it falls or collapses. Not encompass material being loosened deliberately. Garcia v. 225 E. 57^th St. Owners, Inc., 96 AD3d 88;   

First Dept. 2012. 23-3.3(c) Not Apply.  Pieces of masonry lying on floor not “Loosened Material” within 23-3.3(c).Urbano v. Rockefeller Center North, Inc., 91 AD3d 549;

“Loosened Material” Not Dismissed

First Dept. 2010. 23-3.3(c) Not Dismissed. Defendants failed to show whether pipes constituted “Loosened Material.”Wilinski v. 334 East 92^nd Housing Dev. Fund Corp., 71 AD3d 538;

First Dept. 2009. 23-3.3(c) Not Dismissed. “Loosened Material” could encompass electrical panel improperly secured to a wall.Cardenas v. One State St., LLC, 68 AD3d 436;

Second Dept. Second Dept. 2005. 23-3.3(c) Not Dismissed. Issue of fact whether structure falling on plaintiff’s foot was loosened material requiring stabilization.Perron v. Hendrickson, 22 AD3d 731;

April 7. New York Highest State Court, Court of Appeals. Decisions Providing Labor Law §240(1) Defenses.

Plaintiff’s Actions/Omissions Sole Proximate Cause of Accident

Using Improper Object to Access Roof

Court of Appeals. 2005. 240(1) Dismissed. Plaintiff, employed as helper by elevator company, was assigned work in motor room located 4 feet above the roof level of building. Stairs previously in place to roof were removed & no ladder in the vicinity, but ladders were available at job site. Rather than get a ladder, plaintiff climbed to motor room by standing on inverted bucket. When plaintiff exited motor room, he jumped down to the roof, injuring himself. As ladders were readily available, plaintiff’s “normal & logical response” should have been to go get one. Plaintiff’s choice to use bucket to reach motor room & then jump down, sole cause of his injury & not entitled to recover under 240(1). Montgomery v. Federal Express Corp., 4 NY3d 805;

Jumping From Stalled Elevator

Court of Appeals. 1999. Plaintiff’s Actions Superseding Event. Action Dismissed. Plaintiff, a carpenter, working at building under construction, entered freight elevator along with 30 other construction workers. After ascending 6 feet, elevator came to smooth stop & stalled. After stalling, elevator remained lit & did not further move or make noise. 15 minutes latter, doors were opened & workers jumped from elevator to lobby floor 6 feet below. When plaintiff jumped, he injured himself. Plaintiff jumping from stalled elevator was not foreseeable in the normal cause of events. Plaintiff, an experienced worker, was not threatened by injury while in stalled elevator, which had come to smooth stop and remained motionless, quiet and lit. Plaintiff was aware elevator operator had telephoned for assistance.  Plaintiff was only in the elevator for 15 minutes when he decided to put his safety at risk by jumping & there was no indication subsequent delay would be inordinately long. As such, plaintiff’s jump superseded defendant’s conduct & terminated defendant’s liability for the accident. Egan v. AJ Construction Corp., 94 NY2d 839;    

Prime Contractor Not Statutory Agent of GC. 240(1) Dismissed.

Court of Appeals. 1981. Prime contractors incur no liability for accidents arising out of work not specifically delegated to them. Subcontractor not supervise plaintiff’s work. Plaintiff injured in construction accident at golf course in Village of Endicott. New clubhouse being constructed. Owner entered into the contracts with subcontractors. Plaintiff injured while descending scaffold. GC, Cerasaro responsible for all work of the subcontractors. As defendants’ contracts with Village of Endicott & not plaintiff’s employer, the GC, such subcontractors had no ability to control plaintiff’s work or the dismantling of the scaffold. As prime contractors having no arrangement with GC, plaintiff’s employer, & therefore not in position to control plaintiff’s work, prime contractors could not be liable under 241(6). Russin v. Picciano Son, 54 NY2d 311; 

Site Inspector Not Liable Under 240(1)

Court of Appeals. 1999. 240(1) Dismissed. Plaintiff fell from a height while performing asbestos inspection work in a school building. Plaintiff’s duties were to determine whether asbestos samples had been previously taken, check areas marked as containing asbestos & measure areas where asbestos found. In effort to reach a pipe, plaintiff climbed onto a desk & fell. As plaintiff’s work merely investigatory, & was to end before subsequent asbestos removal work, plaintiff not entitled to protection of 240(1). Martinez v. City of NY, 93 NY2d 322; 

Court of Appeals. 1991. 240(1) Dismissed. Injured while engaged in inspection for preparing damage estimate.  Having sustained damage to the roof of its building, defendant sought repair estimates from plaintiff’s employer. When plaintiff went to the building for purpose of inspecting the damage, the roof collapsed. As plaintiff’s employer was not hired to perform any construction work at the time of the accident, plaintiff was not engaged in “repairs” under the 200, 240(1) and 241(6) of Labor Law. Plaintiff not within 240(1) protection. Gibson v. Worthington Div. of McGraw-Edison Co., 78 NY2d 1108;

Normal & Logical Response

Court of Appeals. 2005. Plaintiff, employed as helper by elevator company, assigned work in motor room located 4 feet above roof level of  building. Stairs previously in place to roof were removed & there was no ladder in vicinity, but ladders were available at the job site. Rather than get a ladder, plaintiff climbed to motor room by standing on inverted bucket. When plaintiff exited the motor room, he jumped down to the roof, injuring himself. As ladders readily available, plaintiff’s “normal & logical response” should have been to go get one. Plaintiff’s choice to use bucket to reach motor room & then jump down, was sole cause of his injury & not entitled to recover under 240(1). Montgomery v. Federal Express Corp., 4 NY3d 805;

No Gravity Related Fall

5-6 Inch Gap Between Insulation Boards

Court of Appeals. 2006. 240(1) Dismissed. Falling into 5-6 inch gap between insulation boards, which were stacked 8-feet tall, not gravity-related accident. Keavey v. New York State Dormitory Auth., 6 NY3d 859;

Fall Into 12 Inch Trough

Court of Appeals. 1991. 240(1) Dismissed. 12 Inch Trough Not Elevation Risk. Plaintiff’s employer contracted to remove & repair insulation covering pipes on roof of defendant’s power plant. Such pipes were in recessed area running entire length of roof. In center of recessed area was trough, 18-36 inches wide, 12 inches deep, carrying stream of hot oil. As plaintiff about to step across trough, he slipped, causing his foot to be immersed in hot oil. Held that while extent of elevation not necessarily determine existence of elevation related risk, plaintiff’s proximity to 12 inch trough not elevation related risk requiring any of protective devices of types listed in 240(1). Rocovich v. Consolidated Edison Co., 78 NY2d 509;

Accident Not Result of Force of Gravity

Court of Appeals. 2010. 240(1) Dismissed. While scaffold injury occurred at elevated height, injury not result of force of gravity.  Plaintiff injured during course of his work of painting a bridge.  Plaintiff’s hand crushed as a scaffold continued to move under the impetus of one of its motors, while his hand was trapped between external motor control on scaffold & the steel of the bridge. As injury was not direct consequence of application of the force of gravity to an object or person, 240(1) claim was dismissed. Gasques v. State of New York, 15 NY3d 869;

Court of Appeals. 2001.  Fact that a worker was working at elevated height when the object fell is not determinative in a “falling object” case.  Working at elevation does not increase the risk of being hit by an improperly hoisted loads of materials from above. Hazard posed by working at elevated height is in absence of adequate safety devices, worker may suffer a fall. By contrast falling objects are associated with failure to use a different type of safety device  such as ropes or pulleys that are enumerated in the statute. Narducci v. Manhasset Bay Assoc., 750 NE2d 1085;

Court of Appeals. 1999.  240(1) Dismissed. Stepping Off Ladder on to Concealed Object. While stepping from bottom rung of ladder onto drop cloth covering the floor, plaintiff tripped over portable light underneath the cloth. Only his right foot remained on the ladder as his left foot hit the portable light, causing his ankle to twist. Ladder effective in preventing plaintiff from falling from a height. Plaintiff’s injury resulted from separate hazard unrelated to need for a ladder, i.e., concealed object on floor. Accident resulted from usual & ordinary dangers at construction site. Nieves v. Five Boro AC & Refrig. Corp., 93 NY2d 914;  

Court of Appeals. 1993. 240(1) Dismissed. Not Gravity Related Accident. Injury occurred while working on platform & no fall off the platform. Plaintiff assigned task of welding 30 inch seam near top of shaft 50 feet deep. Temporary platform placed over shaft to enable plaintiff to perform his work. To perform welding task, plaintiff had to sit in awkward position on platform’s edge. After being in this position for over 2 hours, plaintiff unable to straighten up & had to crawl off platform. 240(1) dismissed as not gravity related accident of falling from a height or struck by falling object improperly hoisted or inadequately secured. Ross v. Curtis-Palmer, 81 NY2d 494; 

Court of Appeals. 1994. 240(1) Dismissed. Lowering a 120-Pound Beam From Above Plaintiff’s Head to Ground.  In placing a 120-pound beam onto the ground from 7 inches above his head with assistance of 3 co-workers, plaintiff not faced with special elevation risks contemplated by 240(1). Rodriguez v. Margaret Tietz Ctr. For Nursing Care, 84 NY2d 841. 

Court of Appeals. 1993.240(1) Dismissed. Accident Not Result From Elevation Risk. Plaintiff dismantling coal conveyor system in subterranean concrete vault. Such dismantled machinery removed from vault by crane located at ground level with its cable lowered through opening in vault’s ceiling. A 200 pound metal tension ball attached to cable allowed dismantled machinery to be dragged along concrete floor until it could be hoisted to ground level. When equipment snagged on vault floor’s uneven surface & crane operator, unaware of situation, continued to exert tension on cable until it snapped, propelling tension ball against plaintiff. Accident not result from elevation related hazard. Smith v. NYS Electric Gas Corp., 82 NY2d 781;

Slipped on a Vehicle’s Track System While Exiting Vehicle

Court of Appeals. 2000. 240(1) Dismissed. After completing work for the day, plaintiff alighted from demolition vehicle. Vehicle equipped with track system on each side to maneuver it through construction site. Such vehicle not equipped with a step to assist operators in their entry or exit from vehicle. As plaintiff placed foot onto vehicle’s track, using it like a step, his foot slipped off the track because of grease on track’s surface. Plaintiff fell 3 feet to ground. Alighting from construction vehicle was not elevation related risk which required any of protective devices of 240(1). Bond v. York Hunter Construction, 95 NY2d 883; 

Cable Snapped at Ground Level

Court of Appeals. 1993. 240(1) Dismissed. Accident Not Result From Elevation Risk. Plaintiff dismantling coal conveyor system in subterranean concrete vault. Such dismantled machinery removed from vault by crane located at ground level with its cable lowered through opening in vault’s ceiling. A 200 pound metal tension ball attached to the cable allowed dismantled machinery to be dragged along concrete floor until it could be hoisted to ground level. When equipment snagged on vault floor’s uneven surface & crane operator, unaware of situation, continued to exert tension on cable until it snapped, propelling tension ball against plaintiff.  Accident not result from elevation related hazard. Smith v. NYS Electric Gas Corp., 82 NY2d 781; 

General Workplace Hazard

Court of Appeals. 2008. 240(1) Dismissed. Metal rods not reason why ladder was required. Plaintiff employed as electrical subcontractor on renovation project at Memorial Sloan Kettering Cancer Center. Plaintiff was assigned installing metal racks in a ceiling. 6-foot A-frame ladder was provided to plaintiff. However, such ladder was inadequate for the work needed to be performed. When the ladder was placed in the only possible location, its first rung was completely blocked & inaccessible. A metal rod protruded from a piece of cast iron in a wall as a plumber’s roughing for a toilet to be installed. As such, plaintiff was forced to step directly from the second rung to the ground when descending the ladder. A second cast iron rod protruded a few inches behind ladder’s second rung. Plaintiff’s foot became caught between the second rung, causing a fall. Held that no 240(1) liability where accident results from separate hazard wholly unrelated to the risk which brought about the need for the safety device in first place. Here, presence of 2 unconnected pipes protruding from a wall was not the risk which brought about the need for a ladder but was one of the usual & ordinary dangers at construction site. Cohen v. Memorial Sloan-Kettering Cancer Ctr., 11 NY3d 823;

Installation of Safety Device Contrary to Work Objectives. 240(1) Action Dismissed.

Court of Appeals. 2011. Installation of a protective device would have been contrary to the objectives of the work plan in the basement. Salazar testified he was directed to pour & spread concrete over entire basement floor, a task that included filling the trenches. Put simply, it would be illogical to require owner or GC to place a protective cover, or otherwise barricade, a 3 or 4 foot deep hole when very goal of the work is to fill that hole with concrete. It would be impractical & contrary to the work at hand to cover the area where the concrete was being spread, since the settling of concrete requires the work of leveling be done with celerity. Salazar v. Novalex Constr. Corp., 18 NY3d 134;

Stilts

Court of Appeals. 240(1) Dismissed. Nothing Wrong With Stilts. Accumulation of Ice Caused Fall. Construction worker installing insulation in ceilings of newly constructed apartment building. To complete installation task, plaintiff wore stilts that elevated above his feet above the concrete floor to allow him to reach 10 foot high ceiling. Plaintiff, while wearing the stilts, slipped on patch of ice.  Plaintiff’s testimony established that it was the ice, not a deficiency or inadequacy of stilts, that caused his fall. The ice causing plaintiff to slip is not distinguishable from electrical conduit, a portable light, or protruding pipes, none of which are hazards calling for elevation-related protective devices. Stilts not collapse or break while plaintiff performing his job. Nicometi v. Vineyards of Fredonia, LLC, 25 NY3d 90.

Court of Appeals. 1998. 240(1) Dismissed. Nothing Wrong with Stilts. Accident Caused by Debris. The stilts performed the function 240(1) required of them: allowing plaintiff to safely complete work at elevated height. Had the stilts failed plaintiff as he installed metal studs in the top of the drywall, 240(1) may be implicated. Here, injury resulted from separate hazard, i.e., electrical conduit protruding from the floor. Melber v. 6333 Main St., Inc., 91 NY2d 759; 

Property Titleholder. Not Contract For The Work. No Interest in The Property. 240(1) Dismissed.

Court of Appeals. 2009.  Titleholder. No interest in property. Not contract for the work. 240(1) Dismissed. It has been held the term “owner” is not limited to titleholder of the property where accident occurred & encompasses a person having an interest in the property & who fulfilled the role by contracting to have work performed for its benefit. Although accident occurred on HCIDA’s property, it did not contract with Village of Frankfort to have sewer lateral installed. It had no choice but to allow Village to enter its property pursuant to a right of way, & it did not grant Village an easement or other property interest creating the right of way. Although the Church agreed to pay for the cost of materials Church had no interest in the property over which the sewer lateral was place. Municipal employees working at the site testified no representative of the Church was present or gave directions during excavation work. Village assumed responsibility for installing lateral sewer line. Scaparo v. Village of Ilion, 13 NY3d 864;  

Lessee Not Liable Under 240(1). Lessee Not Contract For Injury Producing Work.

Court of Appeals. 2009. 240(1) Dismissed. Lessee Not Liable Under 240(1). Lessee Not Contract For Injury Producing Work. Plaintiff, ABM employee, fell while cleaning a window on a floor that Goldman had not yet occupied. Goldman began moving in the day after the accident. ABM hired by building owner, Paramount Group. Plaintiff claimed such cleaning was not a regular quarterly cleaning but a special preoccupancy cleaning in preparation for Goldman’s use. Such cleanings were provided for in the Paramount-ABM contract. No evidence tenant Goldman hired ABM to perform any cleaning. Contractor that Goldman used to perform renovation work in the leased spaced, subcontracted no work to ABM. As such, Goldman had no liability under 240(1). Ferluckaj v. Goldman Sachs & Co., 12 NY3d 316; 

Condominium Board Not Owners or Owner’s Agents of Apartment Where Accident Occurred

Court of Appeals. 2012.Defendants own a residential apartment at Trump Place, a 47- story building in Manhattan, which is organized as condominium. Other defendants were condominium; its Board of Managers who is responsible for building’s daily operation & the Trump Corp., the Board’s managing agent. Plaintiff injured while performing renovation in the apartment. Here, the Tomchinsky’s owned their apartment in fee simple absolute. As such, the apartment is real property, separate & apart from the land beneath the condominium building & plaintiff’s accident in their apartment. Since the Tomchinskys, not the condominium, own the apartment, the Board & Trump are not owner’s agents within 241(6). Guryev v. Tomchinsky, 981 NE2d 273;

“Ordinary” Vehicle Repair Work Not Within Protection of 240(1)

Court of Appeals. 2023. Activity in which plaintiff was engaged, ordinary vehicle repair, is not covered under 240(1). Plaintiff was mechanic fixing brakes on trailer truck. Defendant owned a commercial trailer which could haul heavy equipment weighing up to 20 tons. After defendant noticed a problem with trailer’s air brake system, plaintiff agreed to replace a leaking air tank & 4 air hoses located underneath the trailer. Plaintiff used a front loader, equipped with a bucket attachment, to lift the trailer 5.5 feet above the ground and then engaged front loader’s parking brake. As plaintiff lying underneath trailer installing new air brake equipment, front loader rolled backwards & trailer fell on him, pinning him underneath. 240(1) applies to workers “employed” in the erection, demolition, altering, painting, cleaning or pointing of a building or structure. 240(1)’s central concern is dangers that beset workers in construction industry. While we have rejected idea that 240(1) applies only to work performed on construction sites, we have limited 240(1)’s reach when necessary to align with statutory text & legislative intent.  If 240(1) applied here, car owners would be absolutely liable for gravity-related injuries occurring when mechanic working on their car. Stoneham v. Joseph Barsuk, Inc., 41 NY3d 217;   

Accident Occurred After Enumerated Work Completed

Court of Appeals. 2009. 240(1) Dismissed. While plaintiff’s work on AC unit constituted “repair” work under 240(1), such repair ended before the accident. Activity plaintiff involved in at time of accident, retrieval of serial & model numbers from the unit & post-repair inspection, not repair work. 240(1) not cover accident after enumerated activity is complete. Beehner v. Eckerd Corp., 3 NY3d 751;

Routine Maintenance

Court of Appeals. 2004. Section 240(1) Dismissed. As plaintiff replacing a torn window screen when his accident occurred, such activity routine maintenance, not a repair or alteration of a building. Chizh v. Hillside Campus Meadows Assoc., LLC, 3 NY3d 664;

Court of Appeals. 2004. Section 240(1) Dismissed. Fixing Junction Box. Plaintiff was cable television technician employed by Paragon Cable. Paragon dispatched plaintiff to a building owned by defendant Lancaster Studio in response to complaint of tenant who was cable service subscriber. Plaintiff identified the junction box routing the cable signal into subscriber’s apartment. Junction box bolted on exterior wall of building, 15 feet above ground. To access the box, plaintiff placed 20-foot extension ladder, which was supplied by Paragon, against side of building. Following inspection, plaintiff determined defective signal caused by water seeping into junction box. Before taking further action, ladder bent, causing a fall. Rainwater accumulating in junction boxes affixed to building exteriors is common problem. The fix would have been to loosen a few screws & drain the water from junction box. Such work constituted routine maintenance, not repair work under 240(1). Abbatiello v. Lancaster Studio Assoc., 3 NY3d 46;

Court of Appeals. 2003. 240(1) Dismissed. Work constitutes routine maintenance where work involves replacing components requiring replacement in course of normal wear & tear. Plaintiff fell from a ladder.Work constituted routine maintenance.Esposito v. NYC Indus. Dev. Agency, 1 NY3d 526;

Court of Appeals. 1995. 240(1) Dismissed. Replacing Lightbulbs. Not Repair Work. Plaintiff jumped off 8-foot A-frame ladder when it began to tip after climbing 5 steps to inspect free-standing, illuminated Shell Oil sign at service station. Plaintiff’s employer had contract with Shell Oil Company to effect maintenance repairs to Shell’s facilities. Sign not working because 4 lightbulbs needed to be replaced. Shell sign was structure under 240(1) as it was production or piece of work artificially built up or composed of parts joined together in some definite manner. However, 240(1) dismissed as changing a lightbulb is not “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure. An illuminated sign with burnt out lightbulbs is not broken & not need repair. Rather, it needs maintenance. Smith v. Shell Oil Company, 85 NY2d 1000;   

Not Cleaning Work

Court of Appeals. 2022. 240(1) Dismissed. Not Cleaning Under 240(1). Routine Work. Removing Bird’s Nest. Plaintiff employed as maintenance & repair technician by building’s property manager. Plaintiff’s regular duties included making building’s rental properties ready for incoming tenants by repairing fixtures & painting. Here, as plaintiff’s work routine, it weighs against concluding he was cleaning.  Plaintiff also tasked with responding to work orders in response to tenant’s requests. Plaintiff responded to work order as to birds depositing excrement from a nest lodged on one of building’s gutters above the entranceway. Plaintiff fell from unsecured 8-foot ladder that moved when a bird suddenly flew out of the nest. Healy v. EST Downtown, LLC, 38 NY3d 998;

Dusting of Shelves in Store

Court of Appeals. 2013. 240(1) Dismissed. Dusting of 6-foot high display shelf is type of routine maintenance in retail store. It did not require specialized equipment or knowledge & could be accomplished by single custodial worker using tools commonly found in domestic setting. Also, elevation-related risks involved comparable to those encountered by homeowners during ordinary household cleaning & thus a task unrelated to construction, renovation, painting, alteration or repair projects.  Plaintiff not engaged in activity within 240(1). Soto v. J. Crew, 21 NY3d 562; 

Factory Worker Cleaning a Module Being Sent to Purchaser

Court of Appeals. 2012. 240(1) Dismissed. Plaintiff standing on ladder when the ladder broke, causing a fall to ground. Plaintiff cleaning a steel wall module which was 7 feet high. Such module was to be attached to purchaser’s building wall where it would provide support for pipes. Plaintiff cleaning the module at a factory before it was sent to the purchaser. Plaintiff’s argument would expand protections of 240(1) beyond manufacturing activities, as 240(1) would then encompass virtually every cleaning structure in the broadest sense of the term. Every bookstore employee who climbs a ladder to dust off a bookshelf; every maintenance worker who climbs to a height to clean a light fixture, these & many other others would become potential 240(1) plaintiffs. Court declined to extend 240(1) so far beyond purposes it was designed to serve. Dahar v. Holland Ladder & Mfg. Co., 18 NY3d 521; 

Not Engaged in “Alteration” of Building or Structure

Court of Appeals 1992. 240(1) Dismissed. Plaintiff fell from upright steel mold that he was preparing during customary occupational work of fabricating concrete septic tank. At time of accident, plaintiff not engaged in any construction or sewer project & not involved in renovation or alteration work at factory where he was working. Plaintiff’s work not involve erection, demolition, repairing, altering, painting, cleaning or pointing or construction or excavation work. As such, no protection under 240(1) and 241(6).  Jock v. Fine, 80 NY2d 965; 

Investigatory Work

Court of Appeals. 1999. Investigatory Work Outside 240(1) Protection. Plaintiff fell from height while performing asbestos inspection work in school building owned by City of NY. Court held 240(1) not apply. Plaintiff was to determine whether asbestos samples were previously taken, check areas marked as containing asbestos & measure areas where asbestos was found. Attempting to inspect a pipe, plaintiff moved a desk against a wall to reach the pipe. While on the desk, plaintiff fell. While reach of 240(1) is not limited to work performed on actual construction sites, task in which injured employe was engaged must have been performed during “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.” Here, plaintiff’s work as environmental inspector was merely investigatory.  Martinez v. City of NY, 93 NY2d 322; 

Workers’ Compensation Exclusivity

Court of Appeals. 2005. Where No WC Benefits Provided, Plaintiff Can Bring Action Against Employer. Plaintiff fell when scaffold collapsed while plaintiff installing vinyl siding to two-story one-family house. Homeowners hired Dormer Giant as GC for project. Dormer Giant subcontracted siding work to Personal Touch, plaintiff’s employer. Dorner Giant brought third party action against plaintiff’s employer, Personal Touch. Section 11 of WCL, entitled “Alternative Remedy,” states, if employer fails to secure payment of compensation to injured employee, injured employee may opt to maintain an action in the courts for damages. Employers failing to secure workers’ compensation for employees are not holding up their end of bargain between business & labor under Section 11. Boles v. Dormer Giant, Inc., 4 NY3d 235;

Court of Appeals. 1991. Special employee is defined as “one who is transferred for a limited time of whatever duration to service of another.” Thompson v. Grumman Aerospace Corp., 78 NY2d 553.

Volunteer at Work Site Not Within 240(1) Protection

Court of Appeals. 2004. To come within the special class of 240(1), plaintiff must demonstrate was permitted or suffered to work on a building or structure & was hired by someone, be it the owner, contractor or their agent. Abbatiello v. Lancaster Studio Assoc., 3 NY3d 46;

Court of Appeals. 2008. 3 Characteristics Indicate a Person is Working For Hire

1. Person agrees to perform a service in exchange for compensation;
2. Employer, but need not always direct and supervise the manner and method of work;

Employer usually decides whether the task undertaken by employee has been completed satisfactorily. Stringer v. Musacchia, 11 NY3d 212

One And Two-Family Homeowners Exemption to 240(1) and 241(6) Liability

Court of Appeals. 1995. Issue of fact whether the two two-family semi-attached structures are entitled to homeowners exemption. Such 2 buildings shared a single stairway leading to all units in both buildings; had a single metal gate, with one entrance, surrounding both properties; a common roof.  Also, the 2 structures had separate basements, heating systems, , doorways, garages, are taxed separately and have different addresses. Issue of fact whether homeowners exemption applies. Mandelos v. Karavasidis, 86 NY2d 767; 

Court of Appeals. 1992. Issue of Fact as to Possible Commercial Use. 240(1) Not Dismissed. Plaintiff fell from ladder while cutting down a tree. A tree limb struck plaintiff’s ladder, causing fall to the ground. Tree removal was part of plan to remodel a house. The tree was to be removed to make way for the construction but also to allow paving the driveway of the house and in connection with a parking lot to serve the funeral home of defendant. Owner stated purpose in renovating the premises included upgrading it for possible future rental and he did rent the house to 2 families. Lombardi v. Stout, 80 NY2d 290; 

April 7. New York. Hearsay Statements Are Admissible in Opposing Summary Judgment Motion If Such Hearsay Statements Are Not The Only Evidence Offered in Support of The Argument

First Dept.

First Dept. 2022. Sole Reliance on Hearsay Statement. Expert’s assertion that his comparison of the scaffold he inspected with post-accident photographs of the one involved in the accident confirmed that they were the same was conclusory & his sole reliance on a hearsay statement of employee of defendant cannot defeat summary judgment. Santos v. Monadnock Constr., Inc., 209 AD3d 598;

First Dept. 2020. Plaintiff not sole proximate cause of accident or a recalcitrant worker or acting outside scope of his duties in dismantling a scaffold. Plaintiff testified his employer instructed him to dismantle scaffold. Only support for defendant’s contention that dismantling the scaffold was outside of his duties was inadmissible hearsay evidence. While hearsay may be considered in opposition to a summary judgment motion, it is insufficient where it is the only evidence upon would denial of summary judgment would be based. Clarke v. Empire Gen. Contr. & Painting Corp., 189 AD3d 611;

First Dept. 2019. 240(1) Imposed. Plaintiff fell to the ground when the lift truck upon which they were working moved when it was struck by passing vehicle. The lift truck, which was being used as elevated work platform, lacked a guardrail to prevent falls. Defendants relied upon hearsay as to how the accident occurred. Hearsay evidence alone insufficient to defeat summary judgment motion. South v. MTA, 176 AD3d 447; 

First Dept. 2018. Plaintiff made a prima facie showing that he fell from unsecured ladder. Defendants’ opposition was unsworn hearsay statements from witnesses previously undisclosed in discovery and failed to raise issue of fact. Court noted that in over 2 ½ years since the statements were taken, defendant never attempted to obtain affidavits from the witnesses or attempted to depose them, offering their statements only after plaintiff moved for summary judgment. While hearsay statements may be offered in opposition to a motion for summary judgment, such hearsay statements cannot defeat summary judgment where it is the only evidence upon which the opposition to summary judgment is predicated. Gonzalez v. 1225 Ogden Deli Grocery Corp., 158 AD3d 582; 

First Dept. 2017. Uncertified records without proper certification may be considered in opposition to a motion for summary judgment but only when they are not the sole basis for the court’s determination. Here, the unverified documents & unsworn statement are the only evidence to challenge details of plaintiff’s version of accident & therefore should not be considered. Erkan v. McDonald’s Corp., 146 AD3d 466; 

First Dept. 2016.  While hearsay may be considered in opposition to defeat a summary judgment motion if it is not the only evidence upon which opposition to the motion is predicated, because it was the only evidence establishing that plaintiff disregarded an instruction to use the safety devices, it is insufficient to defeat plaintiff’s motion. Ving Choy Chong v. 457 W. 2^nd St. Tenants Corp., 144 AD3d 591;

First Dept. 2013. Plaintiff alleged ladder twisted & then slipped out from underneath him. However, affidavit of Kleinberg-Levin, who hired plaintiff’s employer & was in the apartment at the time of the accident, stated no ladders were being used on date of alleged accident. Affidavit raises issue of fact whether accident occurred as plaintiff alleged. Also, medical reports quoted plaintiff providing a different description of accident. Even if reports are hearsay, they may be submitted & may bar summary judgment when considered in conjunction with other evidence. Marquez v. 171 Tenants Corp., 106 AD3d 422;

First Dept. 2012. C-2 report not signed or authenticated & not clear who created the report or where that person acquired the information.  Assuming the site medic listed on the report completed it, an affidavit from the same medic gives a different version of accident from that listed on C-2.  Affidavit not address such inconsistency & is also not notarized. While hearsay statements may be used to oppose a summary judgment motion, such evidence is insufficient to warrant a denial of the motion where, as here, it is the only evidence submitted in opposition. Taylor v. One Bryant Park, LLC., 94 AD3d 415;

First Dept. 2011. Plaintiff testified he fell off unsecured ladder. Defendant submitted unsworn statement by plaintiff’s employer that he did not know plaintiff & plaintiff not work for him, Such statement was hearsay & unaccompanied by any other evidence tending to show that plaintiff’s presence on work site was not authorized & therefore failed to raise issue of fact. Rodriguez v. 3251 Third Ave. LLC, 80 AD3d 434; 

First Dept. 2004. Lower court erred in finding plaintiff’s accident arose out of Forest’s work at the project. Fenlon’s statement that plaintiff told him that the accident was caused by inadequate lighting is hearsay which cannot support a motion for summary judgment relief unless accompanied by other direct evidence. It was undisputed that Fenlon did not go into area of plaintiff’s accident & it is not clear he actually saw the purported pipe over which plaintiff tripped. Nor did Fenlon’s testimony establish the subject pipe came from Forest. AIU Ins. v. American Motorists Ins., 8 AD3d 83;  

First Dept. 1999. Other Evidence Offered Along With Hearsay Statement. Plaintiff fell from a ladder. Defendants offered the testimony of subcontractor’s president to the effect that plaintiff was observed “skipping” the ladder, meaning trying to move it while standing on it by jerking his body. While the president’s testimony was based on hearsay, also photographic evidence contradicting plaintiff’s assertion of defective equipment. Plaintiff’s summary judgment motion denied. Guzman v. LMP Realty Corp., 262 AD2d 99;

Second Dept.

Second Dept. 2015.  Owner was merely recounting what he learned from interviewing plaintiff’s foreman, who did not witness the accident. Although hearsay evidence may be considered in opposition to a motion for summary judgment, such evidence alone not sufficient to defeat motion. Guanopatin v. Flushing Acquisition Holdings, LLC, 127 AD3d 812;

Second Dept. 2014. Hearsay evidence that decedent told Valerio at about 5:30 pm on date of the accident that he was going to work overtime was insufficient, when combined with plaintiffs’ limited non-hearsay submissions, to raise triable issue of fact as to whether decedent was actually engaged in statutorily protected work activity at the time of his fall. Feinberg v. Sanz, 115 AD3d 705; 

Second Dept. 2012. Other Evidence Besides Hearsay Evidence. Based on Personal Observation. Supreme Court erred in refusing to consider any portion of Kern’s affidavit because it was inadmissible hearsay. Although hearsay evidence is insufficient to defeat a summary judgment motion if it is only evidence submitted, here Kern’s statement that scaffold was equipped with 2 railings was based on his personal observation & as such was not hearsay. Silva v. FC Beekman, 92 AD3d 754; 

Second Dept. 2011. Medical Report May be Admissible in Opposition to Motion. Defendant submitted a report prepared by neurologist who examined plaintiff 6 weeks after the accident where plaintiff said that while descending a ladder on which he had been working, plaintiff “missed a step.” If accurate, such statement differed from the account in his affidavit in support of summary judgment motion & would support a finding the plaintiff’s alleged negligence was sole proximate cause of the accident. Statement in the medical report was not germane to the diagnosis or treatment of plaintiff & therefore, at trial, it would not be admissible for its truth under business records exception. However, the requirement that evidentiary proof be submitted in admissible form is “more flexible” when applied to a party opposing a motion for summary judgment than when applied to the moving party. As such, proof which is inadmissible at trial may, nevertheless, be considered in opposition to a motion for summary judgment, especially where inadmissible evidence does not provide the sole basis for denial of summary judgment. Such proof is admissible as long as nonmoving party is able to demonstrate acceptable excuse for failing to meet the strict requirement of tender in admissible form. Here, defendants demonstrated acceptable excuse for failing to elicit admissible evidence from plaintiff’s treating neurologist at this stage of proceedings. Also, plaintiff’s equivocal responses at his deposition regarding possibility that he “missed a step” while descending the ladder, as well defendants’ potential ability to present evidence contained in medical report in admissible form at trial, establish issue of fact. Merriman v. Integrated Bldg. Controls, Inc., 84 AD3d 897.

April 6. New York. Damages. Fractured leg with open reduction/internal fixation.

Hon. Emily Morales-Minerva, Supreme Court, NY County. (Inquest on damages)

Grech v. DeBellis, 2026 NY Slip Op 31251(U), decided March 24, 2026.

Fractured leg requiring surgery with insertion of plate. Plate removed 18 months later. Wore a cast for 3 months and 2 physical therapy sessions.

Plaintiff, 58-years-old at time of incident. 71-years-old at the time of inquest.

Physical altercation with defendant. Trial Court awarded &75,000 for past pain & suffering. No award for future pain & suffering.

April 6. New York. Photographs/Videos Must be Authenticated by Deposition Testimony or Affidavit to be Admissible

Comment. Not Admissible. No deposition testimony or affidavit statement that the video showed the accident area looking as it did at the time of plaintiff’s accident.

First Dept.

First Dept. 2025. Plaintiff alleged he fell from A-frame ladder after informing the project foreman the ladder was missing rubber feet. Foreman told plaintiff to keep working. While on the ladder, the ladder moved to the right, plaintiff fell of backwards, landing on his back on the floor.

Plaintiff established a prima facie case for §240(1) liability of a fall from elevated height by submission of his deposition testimony. Plaintiff not obligated to establish the ladder was defective.

Defendants submitted a video taken approximately 15 minutes after the accident. However, such video not raise an issue of fact because while plaintiff testified he was the person shown in the video, plaintiff never authenticated the video. Plaintiff did not testify the scene in the video looked the same as it did immediately after his fall. Plaintiff testified the ladder shown in the video had different lettering. There was no other testimony authenticating the video as accurately showing the accident scene. It was held that even if plaintiff was incorrect as to certain details of the accident, such minor inconsistencies did not rebut plaintiff’s prima facie case. Yagual v. Hudson Canal LLC, 244 AD3d 444;

First Dept. 2024. Plaintiff failed to demonstrate the roadway pothole resulted from defendant’s negligence in handling the care of & covering of the excavation site. Statements of defendant’s foreman & the photos taken 3 days prior to the accident, raised triable issue of fact. Doctrine of res ipsa loquitor not apply here because roadway where the accident occurred was not in defendant’s exclusive control after its work was complete.  Sagoe v. Danella Constr. of NY, Inc., 231 AD3d 499;

First Dept. 2024. 240(1) Liability Imposed. While plaintiff engaged in demolition of flooring, a subfloor collapsed, causing a fall several stories & onto a scaffold. Even if, as defendants asserted, subfloor was a permanent structure, in light of building’s condition as depicted in photographs taken soon after the accident, and that plaintiff was engaged in pulling up nailed boards from the subfloor using a crowbar, accident was foreseeable. As defendant’s expert’s opinion was based on photos taken at some unspecified time prior to the accident, when the building did not resemble the condition it was when the accident occurred, not raise issue of fact. Mata v. 371 1^st St., LLC, 226 AD3d 569; 

First Dept. 2023. Photographs Not Authenticated. As to the photos submitted with defendant’s opposition papers, such photos not authenticated by any witness. Also, Triton’s project manager not testify that condition of the ladders in the photos was the same as the condition of the ladder plaintiff was using art the time of the accident.  Sanchez v. MC 19 E. Houston LLC, 216 AD3d 443;

First Dept. 2022. Photos Not Authenticated. According to plaintiff, none of the photographs defendants submitted failed to show the area from where plaintiff fell & were therefore insufficient to establish safety railings were placed on the scaffold. Muco v. Board of Educ. Of City of NY, 203 AD3d 610; 

First Dept. 2013. Photos Not Authenticated. Defendants’ unsubstantiated opinion that it would be “practically impossible” for one to fall from the roof, since parapets and/or walls shown in photographs would have stopped the fall, lacked probative value. Photos were never authenticated & depicted only small sections of roof & no testimony was elicited from plaintiff as to the location on the roof where he fell. DeOleo v. Charis Christian Ministries, 106 AD3d 521; 

Authenticated

First Dept. 2021. Video of Accident Authenticated. Head of security at the hotel on defendant’s property stated that he saved the relevant portion of the surveillance & confirmed the copy defendant submitted with its motion was identical. Cordova v. 653 Eleventh Ave., LLCV, 190 AD3d 637;

First Dept. 2019. Photos Admissible Properly Authenticated. As for the photos, plaintiff’s testimony at deposition that the photos reflected sidewalk bridge in question, as well as the location where he fell, which plaintiff marked & that depicted sidewalk bridge barriers were not in place when he fell, adequately authenticated photos for admissibility purposes. Singh v. NYCHA, 177 AD3d 475; 

First Dept. 2004. Photographs used by expert to measure whether ladder rungs were 12-14 inches apart, accepted by court as plaintiff identified them as accurate. Potter v. NYC Partnership Housing Dev. Fund Co., Inc., 13 AD3d 83;

Photos of Ladder Not Allowed Where Ladder Discarded. Sanction.

First Dept. 2024. Plaintiff fell from A-frame ladder while standing on the ladder. Court precluded defendant from any use of the photos of the ladder taken by its insurance carrier before defendant’s employees disposed of it.  As the destruction of evidence was at least negligent, preclusion of evidence, rather than striking the pleadings, was the appropriate sanction. Defendant was aware plaintiff fell from the ladder & that there was a reasonable possibility of litigation regarding the incident.   Vaccaro v. ESRT Empire State Bldg., LLC, 231 AD3d 687;

Video Footage Raised Issue of Fact as to Plaintiff’s Fall From Ladder

First Dept. 2025. Plaintiff alleged he fell from unsecured ladder leaning against the side of a sidewalk shed bridge. Plaintiff was climbing the ladder to access a taller extension ladder outside of the sidewalk shed so he could descend to the sidewalk below.  Plaintiff’s testimony, together with video footage of the accident that he reviewed during his deposition, failed to establish plaintiff entitled to summary judgment on the 240(1) claim. Video raised issue of fact whether plaintiff intentionally fell and was thus the sole proximate cause of the accident. Because plaintiff’s deposition included responses concerning the c=video’s substantive events, the video, which defendants submitted in opposition, was necessary to properly apprehend plaintiff’s testimony in the first instance. Anguisaca-Morales v. St. Paul & St. Andrew United Methodist Church, 238 AD3d 439;

Second Dept.

Photos Not Authenticated

Second Dept. 2019. Plaintiff tripped & fell from a hole while crossing a street in Brooklyn. Verizon hired VNA to install POVC conduit wiring in the area. VNA submitted evidence that plaintiff fell in the southeasterly crosswalk on Brighton 14^th Street & that VNA performed work, which included digging up the road to install PVC conduit & then restoring the road, on the north side of the road at Brighton Beach Avenue, not on Brighton 14^th Street. In opposition, plaintiff submitted unsworn report of consulting engineer, who reviewed Google photos of the subject intersection. As such plaintiff failed to submit admissible evidence. Engineer’s report was unsworn & failed to specify expert’s qualifications. Also, expert relied upon unauthenticated photos without evidence such photos depicted the accident area as it appeared at the time of accident.  Chtchannikova v. City of NY, 174 AD3d 572;

Photos Authenticated

Second Dept. 2023. Photos Taken by Plaintiff Day After Accident. Plaintiff testified that while standing on second rung from the top of ladder & beginning his descent on the ladder, ladder moved, causing a loss of balance & 10 foot fall to the floor. Photos by plaintiff the day after the accident demonstrated ladder not on slippery surface & bottom of ladder immobilized by use of appropriately secured footing. Rivas v. Purvis Holdings, LLC, 222 AD3d 676;

April 6. New York. Admissibility of Workers’ Compensation C-2 Report

Comment. C-2 document is a pre-printed form entitled, Employer’s Report Of Work-Related Injury/Illness. In the C-2 document, there were written questions as to how the accident occurred & work the employee performing at time of accident. Such document not filled out by the injured employee but another employee of the plaintiff’s employer. C-2 Report requested by Workers’ Compensation Board. To be admissible into evidence, the C-2 Report must have been filled out with someone with knowledge of the accident that is established by deposition testimony or affidavit.

Workers Compensation Report Admissible

First Dept. 2017.  Plaintiff’s inability to testify exactly how accident occurred not require dismissal where negligence & causation can be established with circumstantial evidence.  Plaintiff established 240(1) claim, despite his admitted inability to remember specifics of the accident, through submission of a workers’ compensation report & statement of defendant’s owner, both of which established accident occurred when the bottom of ladder from which plaintiff was descending slipped out from under him, causing a fall.  Workers’ compensation report was properly considered by the motion court as it was properly authenticated as a business record by the person who prepared the report, establishing it was prepared in the regular course of business contemporaneously with the accident & was based on personal knowledge of someone witnessing the accident. Also, a statement made by defendant’s owner in report to OSHA, detailing how the accident occurred, was admissible as vicarious admission of employee.  Weicht v. City of NY, 148 AD3d 551;

C-2 Report Not Admissible Evidence. Report Not Authenticated by Someone With Personal Knowledge of Accident.

First Dept.

First Dept. 2022. Undisputed author of C2 Report not witness plaintiff’s accident. As such, no one with personal knowledge of the circumstances surrounding plaintiff’s work at time of accident established plaintiff not lock all the scaffold pins in place before climbing onto scaffold. Pirozzo v. Laight St. Fee Owner LLC, 209 AD3d 596;

First Dept. 2021. The C-2 Report not signed or authenticated & not clear who created the report or where that person acquired the information. Ging v. FJ Sciame Constr. Co., 193 AD3d 415;

First Dept. 2016. Plaintiff fell from ladder while working at Hunts Point Market in the Bronx. At the deposition and 50-h hearing, plaintiff consistently testified he fell from the sixth rung of a 8-foot ladder after the ladder wobbled. In an affidavit plaintiff averred that as he was working on the piping atop the ladder, he lost his balance, falling of the ladder. The fact plaintiff not mention the ladder wobbling in the affidavit not create issue of fact. Videotape supported plaintiff’s version that he fell when the ladder wobbled. Unsigned Workers Compensation Form C-2 report prepared by plaintiff’s employer stating plaintiff lost his balance and fell off the ladder, not contradict that the ladder wobbled. Hill v. City of NY, 140 AD3d 568; 

First Dept. 2012. C-2 report not signed or authenticated & not clear who created the report or where that person acquired the information.  Assuming the site medic listed on the report completed it, an affidavit from the same medic gives a different version of accident from that listed on C-2.  Affidavit not address such inconsistency & is also not notarized. While hearsay statements may be used to oppose a summary judgment motion, such evidence is insufficient to warrant a denial of the motion where, as here, it is the only evidence submitted in opposition. Taylor v. One Bryant Park, LLC., 94 AD3d 415;

Second Dept.

Second Dept. 2011. Plaintiff’s decedent’s widow, admitted she did not witness the accident & her knowledge of the accident she received from the decedent or from her son who told her what decedent told him how the accident occurred. Plaintiff further relied upon statements as to the cause of the accident in decedent’s workers’ compensation file. However, such files contained inadmissible hearsay & plaintiff failed to lay proper foundation for their admission as business records. Roldan v. NYU, 81 AD3d 625;   

C3 Workers’ Compensation Form Not Admissible. Not Authenticated.

Comment. C-3 is an employee claim for workers’ compensation benefits. It contains 7 sections as to questions about the injured employee & details of employee’s accident.

First Dept.

First Dept. 2023. Defendant’s claim that unattributed statement in plaintiff’s C-3 accident report that he was lifting wood at time of accident implied that plaintiff intentionally removed the plywood covering himself not create issue of fact. Devlin v. AECOM, 224 AD3d 437; 

First Dept. 2023. Defend attempted to raise triable issue of fact by submitting C3 workers’ compensation form stating plaintiff’s accident occurred while he was climbing down from ladder & lost his balance on uneven surface. Such C3 statement lacked probative value & failed to raise issue of fact as to whether plaintiff’s alleged mis-step sole proximate cause of accident as no affidavit or deposition testimony submitted from preparer or similar attestation from a records custodian as to alleged authenticity of statement taken from plaintiff. Hearsay, standing alone, is insufficient to defeat summary judgment. Defendants offered no excuse for relying on C3 in hearsay form, as opposed to presenting such information in admissible form. O’Shea v. Procida Constr. Corp., 220 AD3d 622;

First Dept. 2018.  Hearsay, standing alone, is insufficient to defeat summary judgment.  The mistranslated in the C-3 report does not qualify as prior inconsistent statement or as business record so as to fit within exception to hearsay rule. Declaration against interest hearsay exception also inapplicable as declarant was unaware statement was adverse when made. Defendants, as proponents of the evidence, obligated to show plaintiff was source of information recorded in C-3 report indicating he fell from “stairs” & translation provided by a competent interpreter whose translation was accurate. C-3 form was prepared by plaintiff’s workers’ compensation attorney with aid of a translator. Plaintiff asserted his statement was “While working I fell off a ladder.” Spanish word “escalera”” may be translated as either “stairs” or “ladder.”  Here, no stairs as premises is one story building & not have exterior staircase. Nava-Juarez v. Mosholu Fieldston Realty, LLC, 167 AD3d 511;

April 6. New York. Whether Subcontractor’s Accident Report Admissible  in Summary Judgment Motion?

CPLR 4518[a].  Foundation For Accident Reports Being Prepared in Ordinary Course of Business

Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction., occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter.

Accident Report Not Made in Regular Couse of Business. Inadmissible Evidence.

Comment. AccidentReport must have been prepared by someone with personal knowledge of the accident. For statement of coworker to be admissible as a business record, coworker must have had personal knowledge of the information & be under a business duty to report the information “within the course of regular business conduct.” An affidavit from an investigator having no first hand knowledge of the accident is inadmissible evidence.

When court rejects a report because there is no foundation, it is because the party offering the report failed to show there was a duty to generate such report & author of the report had first hand knowledge of the worker’s accident. This is established by deposition testimony of the author or the author’s affidavit. 

General rule is that a statement in a business record made by an outsider to the business enterprise is inadmissible as business record as it lacks inherent trustworthiness or indicia of reliability.

First Dept.

First Dept. 2024. Plaintiff standing on the fourth rung of a ladder, cutting a portion of ductwork, when such ductwork suddenly fell, striking plaintiff & the ladder. Plaintiff fell to the floor. Defendant cited 2 accident reports in which the authors stated they were told that plaintiff lost his balance, but there were no witnesses to the accident. Neither report was corroborated by sworn deposition testimony, nor did they identify the source of the information. The reports consisted entirely of hearsay & insufficient to deny plaintiff summary judgment. Rivera v. 712 Fifth Ave. Owner LP, 2024 NY Slip Op 03562;  

First Dept. 2023. Plaintiff was directed to perform taping work around lights on the ceiling of a garage at the work site. To perform this work, plaintiff was told to assemble a scaffold. However, because of scaffold parts that were “mismatched,” such scaffold could not be properly constructed. While plaintiff complained of the scaffold, he was told to work with what he had. While working on the scaffold, the scaffold collapsed. In opposition to plaintiff’s summary judgment motion, defendants submitted an affidavit from an investigator & from the owner of the sheetrock/taping contractor. Both stated the plaintiff’s supervisor. Mr. Sabato, instructed plaintiff not to use the scaffold, as it was not compatible with scaffold base that was available. Defendants submitted an unsigned document purporting to be an affidavit from Sabato. As defendants’ submissions in opposition relied solely on Sabato’s inadmissible hearsay statements, insufficient to raise an issue of fact. Garcia v. 122-130 E. 23rdt St. LLC, 220 AD3d 463;   

First Dept. 2023. No evidence accident report was made in regular course of any business & that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter. Also, accident report contained multiple layers of hearsay. Cafisi v. L&L Holding Co, LLC, 219 AD3d 1215;

First Dept. 2021. Sciame’s accident report was inadmissible hearsay & defendants failed to lay a proper foundation for its admission as a business record. Ging v. FJ Sciame Constr. Co., 193 AD3d 415;  

First Dept. 2016. Inspector’s Report of NYC Department of Design & Construction failed to establish the site was in a reasonably safe condition on May 23, 2011, as statements contained in the report are inadmissible hearsay. Even if the report could be admitted as business record, no foundation in the record to support its admissibility. O’Connor v. Restani Constr. Corp., 137 AD3d 672;

First Dept. 2015. Unsworn accident report relied on by defendants to show inconsistency in plaintiff’s account of accident was insufficient to raise issue of fact. Report is inadmissible hearsay & defendants provided no excuse for failing to tender report in admissible form. Inconsistent statement in hospital record as to how the accident occurred is also insufficient to raise issue of fact as it is not germane to plaintiff’s diagnosis and treatment. Kristo v. Bd. Of Educ. Of NY, 134 AD3d 550;

First Dept. 2007. Accident Report Not Admissible. While performing asbestos removal work on building’s first floor, plaintiff struck by a 6 foot long pipe falling from several floors above where demolition work was being performed, including removal of pipes. Accident report, prepared by plaintiff’s supervisor, which was submitted in opposition to plaintiff’s motion, was rejected by court as there was no foundation such report prepared in ordinary course of business. Zuluaga v. PPC Constr., LLC, 45 AD3d 479; 

Inadmissible. Report’s Author No First Hand Knowledge of Accident.

First Dept. 2018. Although the report’s author had a business duty to prepare the report, the statement in the report that the platform “must have been moved during demolition & trench work by Con Ed” indicated that he did not have first hand knowledge of the occurrence & was relying upon speculative statements made by others, who are not identified. Nor was there any indication that such inference was based on first hand knowledge of a third party who was under a business duty to inform the author of the report. 76^th & Broadway Owner LLC v. Consolidated Edison Co. of NY. Inc., 160 AD3d 447;

First Dept. 2010. Report Statements Hearsay. Plaintiff fell from a ladder. Plaintiff contends defendants created or had notice of a trench extending across the floor near where she set up the ladder & noted 2 post-accident reports suggesting her ladder moved into the trench. However, these accident reports not only are hearsay but also directly contradicted plaintiff’s own testimony that the legs of the ladder not move into the trench. As such, plaintiff failed to raise issue of fact. Harrison v. VRH Constr. Corp., 72 AD3d 547; 

Second Dept.

Second Dept. 2022. At issue was a portion of an incident report stating, “When climbing down the ladder the individual stepped on a piece of pencil rod, rolled his ankle and hit his head.” Incident report prepared was a business record prepared by project’s superintendent. Superintendent testified at trial such incident report was based upon statements of plaintiff’s coworker, who was plaintiff’s foreman. For statement of coworker to be admissible as a business record, coworker must have had personal knowledge of the information & be under a business duty to report the information “within the course of regular business conduct.” General rule is that a statement in a business record made by an outsider to the business enterprise is inadmissible as business record as it lacks inherent trustworthiness or indicia of reliability.DeBenedetto v. Kingswood Partners, LLC, 206 AD3d 616;

Second Dept. 2011. Plaintiff’s reliance upon a statement as to the cause of her accident contained in an incident report is unavailing, as the report contained hearsay & plaintiff failed to lay the proper foundation for its admission as a business record. Although hearsay evidence may be considered in opposition to a motion for summary judgment, it is insufficient to bar summary judgment if it is only evidence submitted.  Mallen v. Farmingdale Lanes, LLC, 89 AD3d 996;

Fourth Dept.

Fourth Dept. 2007. Although defendants submitted affidavit & report from one of Kleen All employees & report from another employee, such employees had no firsthand knowledge of incident & hearsay generally may not be considered in opposition to motion for summary judgment. Such reports not fall within business records exception to hearsay rule of CPLR 4518(a) as there is no indication the employees writing such reports had actual knowledge of the events recorded or that they received the information from someone having actual knowledge and was under a business duty to report the event to the person writing the report. Capasso v. Kleen All of Am., Inc., 43 AD3d 1346; 

Accident Report Admissible

Comment.

Where accident report contained statement from plaintiff’s foreman, who witnessed not the fall of plaintiff but the circumstances of the accident, such Accident Report was admissible evidence.

Accident report prepared by the foreman on renovation project in regular course of business & was based on the account provided to him by plaintiff.

First Dept.

First Dept. 2008. Issue of Fact Created by Accident Report. Plaintiff established a prima facie by showing defendants failed to ensure proper placement of the ladder due to condition of the floor. However, issue of fact was raised by accident report which indicated plaintiff tripped on plastic covered floor & not fall from a ladder. Accident report admissible as a business record exception to hearsay rule. Bradley v. IBEX Constr., LLC, 54 AD3d 626;

First Dept. 2007. Report Admissible. Witnessed the Circumstances of Accident. Plaintiff fell from ladder he was ascending to perform welding work on the roof setback of atrium being renovated at post office at Cadman Plaza in Brooklyn. Plaintiff testified he fell when ladder kicked out from underneath him. However, incident report contained a statement from Mr. White, plaintiff’s foreman, that plaintiff just slipped as result of losing his footing while climbing the ladder. Defendant would not be subject to 240(1) liability if he simply lost his footing while climbing properly erected, non-defective A-frame ladder that did not malfunction. Incident report may be admissible as business record under CPLR 4518. Although White stated in his affidavit he did not see plaintiff fall, he personally witnessed the circumstances of his accident. As such, White may be found at trial to have had personal knowledge of the information about the position of the ladder. White was under a business duty to furnish such information to GC’s safety supervisor. Buckley v. JA Jones/GMO, 38 AD3d 461; 

First Dept. 2005. Admissible. Plaintiff, a journeyman electrician, fell from a ladder in the course of renovation project. Accident report properly admitted into evidence as business record. Accident report prepared by the foreman on renovation project in regular course of business & was based on the account provided to him by plaintiff. Petrocelli v. Tishman Constr. Co., 19 AD3d 145;

Defendant’s Loss of Accident Report. Consequence. First Dept. 2011. Court did not take drastic action of striking defendant’s Answer due to its loss of the accident report. Rather, court ordered adverse inference charge be given at trial. Cordeiro v. TS Midtown Holdings, LLC, 87 AD3d 904;

April 5 New York. Labor Law §241(6). Industrial Code. 23-2.1(a)(1). “Passageway”

All building materials shall be stored in a safe and orderly manner. Material piles shall be stable under all conditions and so located that they do not obstruct any passageway, walkway, stairway or other thoroughfare. 

Comment. What constitutes a “passageway” in 23-2.1(a)(1)? What constitutes a “passageway” is also addressed by courts interpreting Industrial Codes 23-1.7(d) and 23-1.7(e)(1). Definition of “passageway” is defined as walkway or pathway used to traverse between discrete areas as opposed to an open area.  23-2.1(a)(1) is dismissed where accident occurs in open area of construction site. 

First Dept.

Interpreting  23-2.1(a)(1) “Passageway”

First Dept. 2017. While the term passageway is not defined in the Industrial Code, courts have interpreted the term to mean a defined walkway or pathway used to traverse between discrete areas as opposed to an open area. Prevost v. One City Block LLC, 155 AD3d 531;

23-2.1(a)(1) Dismissed

Accident occurred in open work area, not passageway, hallway, stairway, or other thoroughfare.

First Dept.

Open Work Area

First Dept. 2022. 23-2.1(a)(1) Dismissed. Accident occurred in open work area. Lifting lid of gang box when gang box fell, causing injury.Ormsbee v. Time Warner Realty Inc., 203 AD3d 630;

First Dept. 2014. 23-2.1(a)(1) Dismissed. Plaintiff constructing a scaffold near open area where several pallets were located. A stone on top of a pallet allegedly fell, striking plaintiff in the knee. As accident occurred in open work area, not a passageway or walkway, 23-2.1 (a)(1) dismissed. Also, no indication pallet was stored in unstable or unsafe manner. Guallpa v. Leon D. DeMatteis Constr. Corp, 121 AD3d 416; 2012.

First Dept. 2012. 23-2.1(a)(1) Dismissed. Plaintiff tripped over small stone while carrying a 100 pound stone across an open, grassy area. When he tripped, the stone he was carrying fell upon his knee & wrist. 23-2.1(a)(1) dismissed as accident occurred in open grassy area and not a passageway or walkway. Ghany v. BC Tile Contractors, Inc., 95 AD3d 768;  

First Dept. 2007. 23-2.1(a)(1) Dismissed. No evidence rebar which plaintiff tripped on obstructed a passageway. Tucker v. Tishman Const., 36 AD3d 417;

Loading Dock

First Dept. 2008. 23-2.1(a)(1) Dismissed. Loading Dock not a “Passageway, Walkway, Stairway or Other Thoroughfare.” Barrios v. Boston Prop., 55 AD3d 339;

Truck Trailer

First Dept. 2001. 23-2.1.(a)(1) Dismissed. Trailer of truck where plaintiff unloading panels not a passageway.Kocurek v. Home Depot, 286 ASD2d 577;

Room. Apartment Unit.

First Dept. 2022. 23-2.1(a)(1) Dismissed.  Accident occurred in apartment unit not a passageway, hallway, stairway or other walkway.Kuylen v. KPP 107^th St., LLC, 203 AD3d 465;

First Dept. 2007. 23-2.1(a)(1) Dismissed. Plaintiff’s accident occurred in room measuring 18 feet by 20 feet.  Accident not occur in “Passageway, Hallway, Stairway or Other Thoroughfare.”Burkoski v. Structure Tone, Inc., 40 AD3d 378;

First Dept. 2005. 23-2.1(a)(1) Dismissed. Room where plaintiff installing drywall at construction site not a “Passageway.” Militello v. 45 W. 36^th St. Realty Corp., 15 AD3d 258;

Second Dept.

Open Area. 23-2.1(a)(1) Dismissed.

Second Dept. 2018. 23-2.1(a)(1) Dismissed. Accident occurred in open area when delivering construction materials. Gargan v. Palatella Saros Builders Grp., Inc., 162 AD3d 988;

Second Dept. 2014. 23-2.1(a)(1) Dismissed.  Plaintiff standing on ground level, struck on the foot by a falling heavy stone that had fallen off of a pallet, next to plaintiff.  As accident area occurred in open area at a worksite & not a passageway, walkway, stairway or other thoroughfare, 23-2.1 not applicable. Desena v. North Shore Hebrew Academy, 119 AD3d 631;

Second Dept. 2012. 23-2.1(a)(1) Dismissed. Plaintiff injured when cart holding sheetrock toppled over in large open area of worksite.Grygo v. 1116 Kings Highway Realty, LLC, 96 AD3d 1002;

Second Dept. 2000. 23-2.1(a) Dismissed. Plaintiff struck by plywood planks caused by strong gust of wind. Randazzo v. Consolidated Edison Co., 271 AD2d 667;

Trench

Second Dept. 2011. 23-2.1(a)(1) Dismissed. Injury not occur in “Passageway.” Injury resulting from plaintiff rotating his back while digging in narrow trench.Moisa v. Atlantic Collaborative Co., 83 AD3d 675;  

Alleyway

Second Dept. 2014. 23-2.1(a)(1) Dismissed. Accident not involve obstruction of passageway.  Plaintiff struck by falling object walking in alleyway on project’s ground floor.Ginter v. Flushing Terrace, LLC, 121 AD3d 840;

Flatbed Truck

Second Dept. 2012. 23-2.1(a)(1) Dismissed. Flatbed truck not a passageway, walkway, stairway or other thoroughfare.  Rodriguez v. D&S Builders, LLC, 98 AD3d 957;

Third Dept.

Third Dept. 2018. 23-2.1(a)(1) Dismissed. No Obstruction in Passageway.  Sheetrock stored in corner of second floor room obstructed no passageway, walkway, stairway or other thoroughfare.Wiley v. Marjam Supply Co., 166 AD3d 1106;

Fourth Dept.

Open Area

Fourth Dept. 2000. 23-2.1(a)(1) Dismissed. Plaintiff fell in open area of construction site, not within a defined walkway or passageway. Motyka v. Ogden Martin Sys. Of Onondaga, 272 AD2d 980;

Flatbed Truck

Fourth Dept. 1997. 23-2.1(a)(1) Dismissed. Not apply to truck bed where plaintiff working. Truck Bed not “Passageway.” Cafarella v. Harrison Radiator Division, 237 AD2d 936;

23-2.1(a)(1) Not Dismissed. “Passageway.”

First Dept.

First Dept. 2017. Issue of Fact Whether Accident Occurred in “Passageway.” Plaintiff testified area was corridor & superintendent testified it was open space.Prevost v. One City Block LLC, 155 AD3d 531;

First Dept. 2007. Defendant’s Motion to Dismiss 23-2.1(a)(1) Denied. Plaintiff struck by boards of sheetrock while performing renovation work. Plaintiff’s expert found the boards, which were leaning against a wall, were inherently unstable and unsafely stored. Castillo v. Santos, 46 AD3d 382;

Second Dept.

Second Dept. 2014. 23-2.1(a)(1) Not Dismissed. Defendant failed to show accident not occur in “passageway” as plaintiff walking on steel beam on crane barge at Wantagh Bridge, stepped down from beam onto stack of wood 4 feet high that gave way. Also, no showing by defendant that pile of wood properly stored.Costa v. State, 123 AD3d 648;  

Fourth Dept. Fourth Dept. 2021. Not Dismissed. 23-2.1(a)(1) Not Limited to Obstructed Thoroughfares. 23-2.1(a)(1) creates 3 distinct obligations & potential sources of liability: first, “all building materials shall be stored in a safe and orderly manner; second, “material piles shall be stable under all conditions.” Third, “material piles shall be … so located that they do not obstruct any passageway, walkway, stairway or other thoroughfare.” Slowe v. Lecesse Constr. Servs., LLC, 192 AD3d 1645;

April 5. New York. Labor Law §241(6). Industrial Code 23-1.29.  Public Vehicular Traffic

• Whenever any construction, demolition or excavation work is being performed over, on or in close proximity to a street, road, highway or any other location where public vehicular traffic may be hazardous to the persons performing such work, such work area shall be so fenced or barricaded as to direct such public vehicular traffic away from such area, or such traffic shall be controlled by designated persons.

Comment. 23-1.29 provides 2 options where work being performed “may” be hazardous because of public vehicular traffic.”

Option 1 is a fence or barricade.

Option 2 is having a designated person “control” the traffic.  

Accident must occur in plaintiff’s work area. Case dismissed where plaintiff struck by vehicle in a drop off area.

23-1.29 Violated or Not Dismissed

First Dept.

First Dept. 2024. 23-1.29(a) Violated. When accident occurred, plaintiff was still engaged in construction, aloft in lift bucket, tightening newly installed steel cable wire, in close proximity to vehicular traffic. A moving truck struck the cable installed in underpass area, causing cable to whiplash & strike plaintiff. At the time, no flag person or barricades to control traffic in work area. 23-1.29(a) was violated & proximate cause of accident. Bucci v. City of NY, 223 AD3d 453; 

First Dept. 2005. 23-1.29(a) Issue of Fact. Barricades Deployed. Plaintiff working in close proximity to a street & issue of fact whether violation of 23-1.29(a) proximate cause of accident as to manner in which barricades were deployed.McGuinness v. Hertz Corp., 15 AD3d 160;

Second Dept.

Second Dept. 2010. Defendant’s Motion to Dismiss 23-1.29(a) Denied. Plaintiff working in work staging in “close proximity” to exit ramp of parkway when struck by out of control vehicle. Gonnerman v. Huddleston, 78 AD3d 993;     

Third Dept.

Third Dept. 2023. Plaintiff injured during construction of a hotel. Plaintiff guiding a two-person basket lift, operated by his supervisor, through hotel’s rear parking lot while construction was ongoing. Plaintiff was walking backwards & knocked to the ground by a vehicle operated by hotel employee. Driver pleaded guilty to unsafe backing under Vehicle & Traffic Law §1211(a). Defendant asserted 23-1.29(a) not apply to construction performed within gated parling lot, having only one entrance, separated from nearest road by a sidewalk, with its use restricted to hotel employees and guests gaining access with a key card. Defendants also asserted code term “traffic” not include vehicles moving within a confined area designated for parking. Court rejected assertion that code phrase “any other location” excludes property used as parking area and that term “traffic” should be construed narrowly. Court rejected that code language “in close proximity to a street, road, highway” is negated by existence of a sidewalk. Defendant’s interpretation would diminish regulation’s overall purpose of ensuring worker safety and as such, 23-1.29 applicable. Schoonover v. Diaz, 222 AD3d 1244; 

23-1.29 (a) Dismissed

First Dept.

First Dept. 2024. 23-1.29 (a) Dismissed. Section 200 claim dismissed against Triborough  Bridge & Tunnel Authority (TBTA)  and MTS as such entities not supervise or control the means & methods of the drop-of procedures for workers at the Throgs Neck Bridge, which was left to GC, American Bridge. Plaintiff involved in motor vehicle accident. 23-1.29 not applicable. While drop-off area might have been part of the larger work site, it was not plaintiff’s work area & as such code provision not apply.  Valenti v. MTA, 226 AD3d 491;

First Dept. 2010. 23-1.29 Dismissed. Ironworker working on bridge attempted to enter lane of traffic on bridge closed to public by his employer & struck by vehicle owned & operated by employer.Delaney v. City of NY, 78 AD3d 540;

First Dept. 2017. 23-1.29 Dismissed as Not Applicable. Truck’s crane struck overhead road sign causing sign to crash down on plaintiff.James v. Painting, 152 AD3d 447;

Second Dept.

Second Dept. 2020. 23-1.29 Dismissed. Town established compliance with requirement that traffic “Shall be Controlled by Designated Persons.” Plaintiff struck by vehicle while replacing gas lines to residences. Babcock v. Orange & Rockland Utilities, Inc., 179 AD3d 882;

Second Dept. 2002. 23-1.29(a) Dismissed. Plaintiff, acting as flagman at construction site, struck by vehicle in early morning hours while still dark.  Dismissed as defendants established providing plaintiff with fluorescent flag.  Lucas v. KD Development Construction Corp., 300 AD2d 634;

23-1.29(b). Public Vehicular Traffic

Every designated person authorized to control public vehicular traffic shall be provided with a flag or paddle measuring not less than 18 inches in length and width. Such flag or paddle shall be colored fluorescent red or orange and shall be mounted on a suitable hand staff. Such designated person shall be stationed at a proper and reasonable distance from the work area and shall face approaching traffic. Such person shall be instructed to stop traffic, whenever necessary, by extending the traffic flag or paddle horizontally while facing the traffic. When traffic is to resume, such designated person shall lower the flag or paddle and signal with his free hand.

Second Dept.

Second Dept. 2002. 23-1.29(b) Dismissed. Plaintiff, acting as flagman at construction site, struck by vehicle in early morning hours while still dark. Defendants established providing plaintiff with fluorescent flag.Lucas v. KD Development Construction Corp., 300 AD2d 634;

Third Dept. Third Dept. 2023. Issue of Fact. Plaintiff injured during construction of a hotel. Plaintiff guiding a two-person basket lift, operated by his supervisor, through hotel’s rear parking lot while construction was ongoing. Plaintiff was walking backwards & knocked to the ground by a vehicle operated by hotel employee. Driver pleaded guilty to unsafe backing under Vehicle & Traffic Law §1211(a). Defendant asserts plaintiff not a designated flagger within 23-1.29. Defendant cited contradictions between plaintiff’s deposition testimony that, “I think I had a flag” with subsequent affidavit opposing defendant’s summary judgment motion, “there were flags on the job site but I do not recall using one” and “I recently verified with my supervisor that I was not using a flag nor was I ever told to use one.” Notably, evidence not contain evidence plaintiff received training or otherwise qualified to be a flagger. Defendants asserted their obligation as to traffic management was discharged through the supervisor who assigned plaintiff to guide basket lift’s operation through the parking lot. Court rejected such assertion. Plaintiff testified “my role was just making sure that nobody, you know, got in between or close to the tire of the lift.” Affidavit of defendant’s expert that plaintiff was a spotter tasked with controlling the area of the basket lift moving in the parking lot was held lacking in evidentiary value. Determination of whether a particular condition is within the scope of an industrial regulation is a question of law for the courts. Also, expert’s affidavit sets forth merely generalized & conclusory assertions. A rational jury could reasonably conclude defendants’ failure to meet their responsibility to either erect a fence or barricade or designate a flagger was substantial cause of accident. Schoonover v. Diaz, 222 AD3d 1244;   

April 5. New York. Subcontractor Work Performed Outside Scope of Contract. Indemnification Denied.

Comment. If accident occurs outside the scope of the subcontractor’s contractual scope of work, owner/GC’s claim for indemnification denied.  

Subcontractor stopped working at site when accident occurred & accident not result of subcontractor’s work.

Contractual requirement for written modifications of the scope of work may be waived when conduct of parties demonstrates indisputable mutual departure from the written agreement & changes were requested by plaintiff & executed by defendant.

First Dept.

First Dept. 2021. Work Not Within Scope of Subcontractor’s Work. GC’s indemnity claim against subcontractor dismissed. Subcontractor All Safe’s motion dismissing contractual indemnification claim by GC, Dolner, granted. All Safe obligated to indemnify Dolner for claims “arising out of or in connection with or as a consequence of the performance or non-performance of All Safe’s Work.” Plaintiff’s expert stated All Safe had duty to even out uneven surface underneath platform. However, whether to smooth out uneven ground was not within subcontractor All Safe’s work, but rather the GC, Dolner. As All Safe not responsible for leveling ground underneath platform, the accident not arise from All Safe’s work. Vasquez v. City of NY, 200 AD3d 482;

First Dept. 2017. Issue of fact exists whether work plaintiff performing when accident occurred within scope of Spectrum’s work. Spectrum’s contract unclear as to whether window frame plaintiff was painting when accident occurred included in the scope of work. Fidanza v. Bravo Brio Rest. Group, Inc., 146 AD3d 594; 

First Dept. 2015. Defendant Completed Its Work Before The Accident. Moving defendants seek indemnification from Petrocelli & third-party defendant RSR for death of Mr. Smith, principal of RSR, a subcontractor hired by Petrocelli, when he fell from roof of building under construction. Mr. Smith’s death may have been a suicide. Even giving indemnity provision broadest possible construction, it cannot be said such loss arose out of RSR’s work on the project, especially with testimony RSR had ceased working there before the day of incident. Smith v. Hunter Roberts Constr. Corp., 127 AD3d 647;  

First Dept. 2010. Construction of “catch-all” outside of plans. Indemnification Denied. Purchase order, engineer’s plans & related invoice all reference only construction of the sidewalk bridge, making no reference to additional construction of 8-foot “catchall.” Deposition testimony of parties disagreed as to whether construction of catchall discussed as part of the job. Court affirmed jury’s verdict that entity owed no indemnification as to damages resulting from catchall construction. McDonald v. 450 W. Side Partners, LLC, 70 AD3d 490;   

Second Dept.

Written Modifications to Scope of Work

Second Dept. 2022. Issue of Fact Whether Work Performed to Garage Within Contract’s Scope of Work. Plaintiff employed by NJM Construction & working on exterior of detached garage when he either fell from scaffold surrounding garage or from a ladder. Indemnification provision may not apply to work performed outside of contractual scope intended by the parties. However, contractual requirement for written modifications of scope of work may be waived when conduct of parties demonstrates indisputable mutual departure from written agreement & changes requested by plaintiff & executed by defendant. Scope of NJM’s work as set forth in contract limited to framing & exterior trim for the house & no mention of garage. Changes to contract required in written change order & no evidence such change order issued. However, issue of fact whether waived where NJM requested to perform work on exterior of garage & NJM executed such work. Also, NJM’s work on garage was within the scope of its “trade,” which could potentially bring accident within scope of indemnification provision. Indemnification provision stated, claims caused by breach of Contract, its negligence … in the performance of contract and/or NJM’s trade. Torres v. Accumanage, LLC, 210 AD3d 718;  

Second Dept. 2016. Accident Not Caused by Contractor’s Work. Indemnification Denied. Plaintiff fell while descending interior staircase because of insufficient lighting in building owned by Decker. Defendant Athens Electric entered into contract with Decker to perform certain electrical work in building & on day of accident, disconnected electricity to common areas to perform electrical work in connection with installation of cooling tower. Decker entered into separate contract with Perfectaire Co. to install cooling tower. Building owner Decker’s contractual indemnification claim against Perfectaire dismissed as Perfectaire’s work not include electrical work performed by Athens Electric. Perfectaire established Athens Electric not its subcontractor. Indemnity clause not triggered as plaintiff’s accident not arise or result from Perfectaire’s work. Staron v. Decker, 135 AD3d 846;    

Second Dept. 2015. Area of Stucco Work Performed by Plaintiff Not Part of Contracted Work. Indemnification Dismissed. While Spectrum’s contract relating to the project required it to indemnify owner & construction managers against all liability arising out of or connected with performance of Spectrum’s work under the contract, Spectrum showed indemnification clause inapplicable as plaintiff was injured applying stucco to the building roof, which was outside scope of painting work to be performed by Spectrum under the contract. Lombardo v. Tag Ct. Sq., LLC, 126 AD3d 949;

No Indemnification Obligation. Accident Not Occur on Demised Premises.

Second Dept. 2010. Lease indemnification clause provided “shall not be liable for any injury to any person on the demised premises or any part thereof.” Plaintiff’s accident occurred 100 feet away from demised premises as he prepared cement for delivery to demised premises. As accident not occur on demised premises, subcontractor not obligated to indemnify premises owner. D’Alto v. 22-24 129^th St., LLC, 76 AD3d 503;

Third Dept.

Third Dept. 2018. Indemnification Allowed. Accident Occurred Within Scope of Change Order. Young contended Mercer not entitled to conditional contractual indemnity as repair work leading to accident outside scope of contract, which was limited to roof replacement & made no provision for repairs & because no written change order modifying scope of work was executed as contract required.  However, indemnification provision may apply to injuries caused by work performed outside of the contractual scope intended by the parties.  Contractual requirement for written modifications of scope of work may be waived when conduct of parties demonstrates indisputable mutual departure from written agreement & changes clearly requested by plaintiff & executed by defendant.  Evidence showed flexible practice by which subcontractors sometimes performed repairs not specified in contract sans submitting written change order. Foreman testified he did not submit a change order for such repair work & his company did not receive additional payment. Burhmaster v. CRM Rental Management, Inc., 166 AD3d 1130;

Fourth Dept.

Fourth Dept. 2018. Indemnification Denied. Roofing Work Outside Scope of Contract. The “Work” defined in contract addendum as those services “more fully described in the contract, invoice, purchase order or other attached document referencing the Contractor’s work and services to be provided, which is incorporated by reference herein and made a part thereof.” As such plain language of addendum limits indemnification agreement to only certain work of Sattora, i.e., work for which defendants had written agreement or record that was contemporaneously executed with addendum. As no written contract or other record executed for Sattora’s performance of relevant roofing work, no valid indemnification agreement arising out of such work. Provens v. Ben-Fall Dev., LLC, 163 AD3d 1496; Fourth Dept. 2005.

Physical Altercation Outside Scope of Indemnification. Third party defendant, Leone Construction moved to dismiss the third party action for contractual indemnification brought by the GC, Baker Heavy Highway. Baker’s employee was not acting in furtherance of Baker’s business when he assaulted Leone’s employee.  Baker’s employee attempted to punch the Leone employee. Subcontract obligated Leone to defend & indemnify Baker against any claim for personal injury caused by, resulting from, arising out of or occurring in connection in connection with the execution of Leone’s work. Leone had no duty of contractual indemnification to Baker. Language of indemnity agreement should not be extended to include damages which are neither expressly within its terms nor of such character that it is reasonable to infer that they were intended to be covered under the contract. As plaintiff not acting within scope of his employment by assaulting the Leone employee, no contractual duty of Leone to indemnify Baker. Zanghi v. Laborers’ Inter. Union of North Amer., 21 AD3d 1370;  

April 5. New York. Unlike Labor Law §240(1) Actions, Comparative Negligence Can be Imposed in Labor Law §241(6) Action.

Comment. As 240(1)liability is absolute,comparative negligence is not considered by a Court in determining whether 240(1) was violated. In a 241(6) cause of action, a plaintiff can be assessed comparative negligence. While there can be a finding of 241(6) violation based upon a New York State Industrial Code, there can also be a finding of comparative negligence against a plaintiff.  While a 2013First Dept. decision, cited below, denied a 241(6) claim because of issues of fact as to whether comparative negligence was a valid defense, comparative negligence goes to mitigation of damages, not whether 241(6) was violated.

Court of Appeals

Court of Appeals. 2011. St. Louis v. Town of N. Elba, 16 NY3d 411;  1982. Long v. Forest-Fehlhaber, 55 NY2d 154;

First Dept.

First Dept. 2018. Issue of fact existed as to plaintiff’s negligence.  Plaintiff testified at a deposition that as he entered the stairwell, he was looking up to determine location of the box through which he was to run cable and that while carrying a ladder in one hand, he attempted to descend the staircase sans looking at the stairs or landing in front of him.  Luciano v. NYCHA, 157 AD3d 617;

First Dept. 2013.  241(6) claim should have been denied as issues of fact exist as to whether plaintiff’s comparative negligence constituted a valid defense.  Although plaintiff testified hard hat would not fit over his welding hood, the site safety manager testified to the contrary. Mercado v. Caithness Long Is. LLC, 104 AD3d 576;

Second Dept.

Second Dept. 2019.  Amy comparative negligence on the part of plaintiff does not preclude liability on 241(6) cause of action. Moscati v. Consolidated Edison Co. of NY, Inc., 168 AD3d 717;  2017.  Aragona v. State of NY, 147 AD3d 808;

Second Dept. 2016. Plaintiff fell from top step of ladder while painting a wall inside an apartment.  Plaintiff testified the ladder provided by his employer had a defective supporting bracket that would become unlocked sans warning.  Plaintiff’s request for different ladder was refused by his employer.  Such bracket became unlocked at the time of his fall even though he set it in a locked position.  Although the evidence demonstrated the ladder’s defective supporting bracket, which plaintiff complained about prior to the accident, constituted a violation of 23-1.21(b)(3), plaintiff failed to demonstrate his freedom from comparative negligence. Cardenas v. 111-27 Cabrini Apts. Corp., 145 AD3d 955;

Fourth Dept. Fourth Dept. 2021. Baum v. Javen Constr. Co,. Inc., 195 AD3d 1378; Fazekas v. Time Warner Cable, Inc., 132 AD3d 1401;

April 4. New York. No Additional Insured (AI) Coverage. Named Insured Not Negligent & AI Coverage Contingent Upon “Ongoing Operations,” Not Completed Operations. Claim of Untimely Disclaimer Denied As No Insurance Coverage For The Claim.

Consolidated Edison Co. of NY, Inc. v. Harleysville Ins. Co., 2026 NY Slip Op 31231(U), decided March 27, 2026, Hon. Arlene Bluth, Supreme Court, NY County. In the underlying personal injury action, plaintiff fell in a crosswalk. Tri-Messine Construction performed paving work in & around subject crosswalk. As Tri-Mesine completed its work 2 years before the accident, it was a completed operation. Con Ed claims it had a contract with Tri-Messine where it was to be named as additional insured (AI) on Tri-Messine’s policy with Harleysville. Con Ed moved for summary judgment that it was an AI on the Harleysvile policy.

Con Ed contended that as Tri-Messine worked in the area of the accident, a reasonable interpretation is Tri-Messine’s work was connected to the accident. In addition to completing its work 2 years before the accident, Tri-Messine asserted it performed no work in the subject crosswalk. Tri-Messine not named as a defendant in underlying plaintiff’s action. Also, Harleysville provided coverage under the policy for Tri-Messine’s ongoing operations & there is no dispute that Tri-Messine’s work was completed well before plaintiff’s accident in the cross walk.

Policy limited AI coverage to, “Such person or organization is an AI only with respect to liability arising out of your ongoing operations performed for that insured. A person’s or organization’s status as an insured under this endorsement ends when your operations for that insured are completed.”   There was no dispute that Tri-Messine’s work ended years before the crosswalk accident. Con Ed’s claim that Harleysville not timely disclaim was without merit as there was no coverage in the first instance.

Con Ed’s summary judgment motion denied & Harleysville’s motion for summary judgment granted.

April 4. New York. Motion Court Schedules Sanctions Hearing For April 10, 2026, as to “Apparent Use of Fabricated Caselaw” in Summary Judgment Motion.

Espinoza v. M&R Constr. Group, Inc., 2026 NY Slip Op 31227(U), decided March 19, 2026, Hon. Devin Cohen, Supreme Court, Kings County. Part of plaintiff’s work was building boxes or frames into which cement would be poured. Excavation work was being performed at construction site at this time & excavator was being operated while plaintiff constructing such boxes or frames. Plaintiff testified he was in the area first to retrieve wood needed to perform his work & excavator drove to where plaintiff was working. Excavator basket was 10 feet above plaintiff’s head.  

Excavator operator was breaking up cement parts that were no good anymore and placing them in containers. A piece of cement fell from the excavator, striking plaintiff’s head. Such cement piece was similar in size to a soccer ball. Accident conformed by a coworker.

Defendant Shorewood Real Estate Group LC was designated as agent of premises owner in construction management agreement. In its motion papers Shorewood relied on a 2003 Second Dept. decision, Parrelli v. Temple Beth El of Great Neck, 304 AD2d 788. Motion Court found no case with that caption. The nearest Second Dept. case, in terms of caption name, is Berger v. Temple Beth El of Great Neck, a defamation action involving none of the issues at dispute in the subject case. Also, the given citation leads to the middle of a Second Dept. decision in a declaratory judgment matter involving proper land use of a parcel in the County of Westchester.”

Motion Court held, “In light of this apparently fabricated caselaw, a sanctions hearing will be scheduled in the decretal section of this decision.”

April 4. New York. Instruction Not to be in Particular Area Not a Safety Device. Disobeying Such Instruction Not a Defense to §240(1) Action.

Espinoza v. M&R Constr. Group, Inc., 2026 NY Slip Op 31227(U), decided March 19, 2026, Hon. Devin Cohen, Supreme Court, Kings County. Part of plaintiff’s work was building boxes or frames into which cement would be poured. Excavation work was being performed at construction site at this time & excavator was being operated while plaintiff constructing such boxes or frames. Plaintiff testified he was in the area first to retrieve wood needed to perform his work & excavator drove to where plaintiff was working. Excavator basket was 10 feet above plaintiff’s head.  

Excavator operator was breaking up cement parts that were no good anymore and placing them in containers. A piece of cement fell from the excavator, striking plaintiff’s head. Such cement piece was similar in size to a soccer ball. Accident conformed by a coworker.

Motion Court held that based on plaintiff’s testimony of being struck by a falling object, plaintiff established a prima facie for summary judgment as to the §240(1) action. As to defendants’ opposition, it was held,

“Even if it were accepted arguendo that plaintiff was instructed not to work near the excavator and the court disregarded plaintiff’s testimony that he was in the area working before the excavator arrived, an instruction not to be in a particular area is not a safety device in the sense that plaintiff’s failure to comply with the instruction is equivalent to refusing to use available, safe & appropriate equipment.”   Court of Appeals. 1993. Not Recalcitrant Worker. Plaintiff fell from a ladder. Plaintiff was repeatedly instructed to use scaffold, not a ladder, when sandblasting railroad cars. Held that an instruction by employer or owner to avoid using unsafe equipment or engaging in unsafe practices is not a safety device in the sense that plaintiff’s failure to comply with such instruction is equivalent to refusing to use available, safe and appropriate equipment. Evidence of instructions does not, by itself raise issue of fact sufficient to support recalcitrant worker defense. Gordon v. Eastern Ry. Supply, 82 NY2d 555;

April 4. New York. Labor Law §241(6) Action. Industrial Code 23-4.2(a). Trench & Area Type Excavations

Whenever any person is required to work in or is lawfully frequenting any trench or excavation 5 feet or more in depth which has sides or banks with slopes steeper than those permitted in Table I of this Subpart, such sides or banks shall be provided with sheeting and shoring in compliance with this Part. Such sheeting and shoring system shall be contact with the sides or banks of such trench or excavation. 

A designated person shall carefully inspect such sheeting and shoring at least once each day and more frequently in the event of rain, the presence of additional surface or ground water from any source, excessive ground vibrations or whenever additional loads of any kind have ben imposed near or adjacent to such excavation. Additional protection against slides and cave-ins shall be provided whenever necessary.

Any trench or excavation in clay, sand, silt, loam or nonhomogenuous soil which has sides or banks more than 3 feet but less than 5 feet in depth shall be provided with side or bank protection in compliance with this Part. Such side or bank protection shall not be required where an employer maintains on file at the excavation site a dated certification in writing by a designated person who is qualified by training and experience indicating that such person has examined the sides and banks and has found them to be stable and not subject to failure or cave-in.  such certification shall be available for examination by the commissioner.

Comment. 23-4.2 Only applies to below grade excavations.If the trench depth is less than 5 feet, 23-4.2(a) is dismissed.

23-4.2 Sufficiently Specific to Support 241(6) Claim

Second Dept.  2015.  Cunha v. Crossroads II, 131 AD3d 440;  2011.  Ferreira v. City of NY, 85 AD3d 1103; 2009. Ferreira v. Village of Kings Point, 68 AD3d 1048;  2002. Garcia v. Silver Oak USA, Ltd., 298 AD2d 555;

Third Dept. 2010. Baker v. Town of Niskayuna, 69 AD3d 1016;

Fourth Dept. 2014.  Wrobel v. Town of Pendleton, 120 AD3d 963; 2002. Davis v. Manitou Construction Co., 299 AD2d 927;  2002. Matter of Fischer v. State of NY, 291 AD2d 815;  

23-4.2(a) Violated or Not Dismissed.   

First Dept.

First Dept. 2007. 23-4.2(a) Not Dismissed.  Plaintiff & eyewitness testified of the 6-7 foot depth of the trench. Bell v. Bengomo Realty, Inc., 36 AD3d 479;

First Dept. 2001. 23-4.2 Violated.  As plaintiff testified he was working in area where there was no shoring, there was ample support for jury verdict that 23-4.2(a) violated. Caldas v. City of NY, 284 AD2d 192;

Second Dept.

Second Dept. 2019. 23-4.2(a) Not Dismissed. Plaintiff operating an excavator to remove from a creek bed pieces of timber that had previously formed a bulkhead. During course of such work, excavator slid or tipped into the creek. Defendant failed to establish 23-4.2(a), which requires proper footing for certain work using excavators & similar equipment inapplicable. Moscati v. Consolidated Edison Co. of NY, Inc., 168 AD3d 717;

Second Dept. 2014. 23-4.2 Not Dismissed as lower court erred in determining the trench in which appellate was injured was not more than 5 feet deep. As such 23-4.2 applicable. Rodriguez v. Trade Constr. Servs. Corp., 121 AD3d 962;

Third Dept.

Third Dept. 2011. 23-4.2(a) Not Dismissed. While trench box & steel sheets were used in effort to shore 18 foot trench in which plaintiff was working, they were installed in such a way that steel sheets were not in contact with the sides or banks of the trench below the position of the trench box. Instead, the steel sheets were driven into the clay 6 to 10 inches from the side of the trench, leaving a 6 to 10 inch unshored wall of clay that collapsed on plaintiff. Smith v. Robert Marini BLDR, 83 AD3d 1188.

Third Dept. 2003. 23-4.2 Not Dismissed. Plaintiff testified ground went out from underneath him causing him to fall into elevator pit. Wells v. British American Dev. Corp., 2 AD3d 1141;

23-4.2 Dismissed

Second Dept. 2011. 23-4.2 Not Violated. No contradicting evidence that measurements of the slope were within OSHA guidelines & excavation not require sheeting or shoring, or to otherwise indicate that angle of the slope or a lack of sheeting or shoring constituted dangerous condition. Plaintiff’s own testimony indicated angle of slope was within guidelines set forth in table I of 23-4.2. Plaintiff walking down a slope of dirt, debris & rock created by excavator.  Ground gave way, causing a fall. Ulrich v. Motor Parkway Properties, 84 AD3d 1221;

23-4.2 Not Apply as Trench Depth Less Than 5 Feet

Second Dept. 2006. 23-4.2 Dismissed. 23-4.2 applies to shoring & stabilization of trenches & excavations 5 feet or more in depth. As co-worker excavated a 3 foot deep trench along a sidewalk with a backhoe, plaintiff, who was working in the trench, struck by a falling segment of overhanging concrete sidewalk slab.  Natale v. City of NY, 33 AD3d 772;

Second Dept. 2001. 23-4.2 Not Apply as excavation less than 5 feet in depth. Magnuson v. Syosset Comm. Hosp., 283 AD2d 404;

Third Dept.

Third Dept. 1997. 23-4.2 Dismissed. 23-4.2 only applies to below grade excavations.  Here, accident at ground level.  23-4.2 dismissed. Friot v. Wal-Mart Stores, Inc., 240 AD2d 890; 

Fourth Dept.

Fourth Dept. 1996. 23-4.2 Inapplicable. 23-4.2 applies to shoring & stabilization of trenches & other excavation work. Plaintiff struck by falling sewer pipe. Coworker slipped while handing down the pipe, dropping the pipe into the trench. Adamczyk v. Hillview Estates Dev. Corp., 226 AD2d 1049;

4.2(a). Soil Composition

Second Dept. 2001. 23-4.2(a).  To establish composition of the soil for purposes of determining which 23-4.2(a) specifications applied, expert testimony required. Monsegur v. Modern Comfort Tech, 289 AD2d 307;  

April 3. New York. Plaintiff’s Motion Seeking Summary Judgment on Labor Law §240(1) & §241(6) Denied as Evidence Plaintiff Never Worked at the Construction Site. Appellate Court Not Find Decision of Workers’ Compensation Board Conclusive Evidence as to Employment.

Fuczynski v. 144 Div., LLC, 2026 NY Slip Op 01942, decided April 1, 2026, Second Dept. Plaintiff alleged he suffered an accident while performing construction work on a commercial renovation project at a building at 38 Canal Street owned by defendant 144 Division, LLC.

Plaintiff testified that on March 7, 2016, he was employed by First quality Group, Inc. & was working on construction job that required framing, sheetrock, sound installation of the ceilings & laying marble slab flooring. On that date, plaintiff instructed by supervisor to install sheetrock to a ceiling on the first floor. Plaintiff testified that while disconnecting a lighting fixture from such ceiling, he suffered electric shock & fell from 6-foot Baker scaffold lacking guardrails. Appellate Court held such testimony established violations of §240(1) & §241(6) were the proximate cause of accident.

Defendant raised an issue of fact whether plaintiff was ever employed at the subject premises at the time plaintiff alleged the accident occurred. Contractor testified that on March 7, 2016, his company, Innovative Solutions, Inc. was only engaged to perform tile work on the floor at the site. Such contractor was never associated with an entity called First Quality Group, LLC. While the contractor had previously been associated with entity known as Quality First Group, LC, such entity was not engaged to work at such premises.

Such contractor further testified he performed all the work at the premises by himself, that he worked alone on the date of the accident, no one else was present at that time at the premises & no scaffold was present at the premises. As the contractor’s testimony contradicted plaintiff’s testimony, it raised a triable issue of fact as to whether plaintiff’s accident occurred. As such, plaintiff’s motion denied.

Comment.  Plaintiff’s reply affirmation noted the Workers’ Compensation Board’s decision that First Quality was plaintiff’s employer for the work resulting in the subject accident. Appellate Court decision did not address such finding of the Workers’ Compensation Board. Apparently, the Court did not find such evidence to be conclusive.

April 3. New York.  Labor Law §241(6). Industrial Code 23-1.22.  Structural runways, ramps and platforms.

23-1.22(a).  Application.  This section does not apply to ramps constructed of earth, gravel, stone or similar embankment material. 

23-1.22(b)(1)

All runways and ramps shall be substantially constructed and securely braced and supported.  Runways and ramps constructed for use by motor trucks or heavier vehicles shall be not less than 12 feet wide for single lane traffic or 24 feet wide for two lane traffic.  Such runways and ramps shall be provided with timber curbs not less than 10 inches by 10 inches, full size timber, placed parallel to, and secured to the sides of such runways and ramps.  The flooring of such runways and ramps shall be positively secured against movement and constructed of planking at least 3 inches thick full size or metal of equivalent strength.  

Estrella v. BMG Monroe I, LLC, 2026 NY Slip Op 01939, decided April 1, 2026, Second Dept. Plaintiff was performing framing work for his employer Plaza Construction at a project called Smith Farms, owned by BMG Monroe and GC was Verticon. Defendant Upstate Framing subcontracted the framing work to Plaza Construction. Plaintiff was installing plywood floors in a house. A 9-foot trench surrounded parts of the foundation that had not yet been backfilled.

Plaintiff’s coworkers placed a metal plank, intended for the purpose of pouring concrete, across the trench as a makeshift ramp. It was snowing. Plaintiff stepped on the metal plank to take a phone call to discuss whether the work should continue. Such metal plank, unsecured, shifted under plaintiff’s weight, fell into the 9-foot trench, causing plaintiff to fall.

Appellate Court held 23-1.22(b)(1) was inapplicable as the metal plank from which plaintiff fell was neither a runway nor a ramp that was constructed for the use of persons.    

 Comment. Where accident resulted from flexing of planking or some other indication the planking was unsecured, causing an accident, 23-1.22(b)(1) may apply. Note that 23-1.22(b)(1) also applies to workers pushing a cart over unsecured planking.  Alleged 23-1.22(b) violation likely results in experts being retained by both sides to opine on whether planking to a ramp or runway or platform was secured pursuant to the code.  

23-1.22(b)(1) Sufficiently Specific to Support 241(6) Cause of Action Second Dept. 2021.  Seem v. Premier Camp Co., 200 AD3d 921;  2019. Davies v. Simon Prop. Grp., Inc., 174 AD3d 850;

April 3, 2026. New York.  Labor Law §241(6). Industrial Code 23-1.7(e)(2) Violated as Electrical Wire Debris Not Integral to Work Being Performed.  

23-1.7(e)(2)

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.

Speechio v. Starbucks Corp., 2026 NY Slip Op 02049, decided April 2, 2026, First Dept. Plaintiff. employed by third-party defendant carpentry subcontractor, Eclipse Contracting, testified he slipped on a piece of loose electrical wire while walking around a pile of discarded wires in order to retrieve work materials. It was held the pile of discarded debris was not “integral to the work being performed.” As such, it was held there was a violation of Industrial Code 23-1.7(e)(2) as to the Labor Law §241(6) cause of action.

Comment. If the construction site accident arises from materials, equipment or even possibly debris, that was integral to plaintiff’s work, 23-1.7(e)(2) claim is dismissed. Accident must have arisen out of plaintiff’s work. If another subcontractor’s employees created hazardous condition, causing injury to plaintiff, 23-1.7(e)(2) will not be dismissed.

Other appellate decisions where condition causing the accident was not integral to the work.            

First Dept.

Debris Accumulation. Not Integral to Work Performed.

First Dept. 2024. Plaintiff employed by Par fire to relocate sprinkler heads at a building owned by 395 Hudson. Fitzgerald was the GC for the construction work & responsible for removal of debris. Fitzgerald retained ARI Products to install carpeting. While walking in a hallway at construction site plaintiff stepped and slipped on piece of discarded carpeting. Plaintiff granted summary judgment on 23-1.7(e)(2) claim as accident not arise from performing his work duties. Discarded carpeting was debris not integral to work being performed at site. Sternkopf v. 395 Hudson NY, LLC, 227 AD3d 579; 

First Dept. 2017. 23-1.7(e)(2) Violated.  Loose granules on roof surface causing the accident were not integral to the roof or the work, but were accumulation of debris from which 23-1.7(e)(2) requires work areas to be kept free. Lester v. JD Carlisle Dev. Corp., MD, 156 AD3d 577;

First Dept. 2005. 23-1.7(e)(2) Violated. Plaintiff stepped on a nail in pile of debris in work area that was permitted to accumulate for several days. In light of accumulated debris, no merit to defendant’s contention hazard was integral part of plaintiff’s work removing wood paneling. Singh v. Young Manor, Inc., 23 AD3d 249;

Whether Debris Accumulation Integral to Work Being Performed. 23-1.7(e)(2) Not Dismissed.

First Dept. 2021. 23-1.7(e)(2) Not Dismissed. Issue of fact whether the wood plaintiff stepped on was integral to work being performed or was accumulation of debris from previous work. Davis v. Trustees of Columbia Univ. in the City of NY, 199 AD3d 481;

First Dept. 2020. 23-1.7(e)(2) Not Dismissed. Issue of fact whether debris plaintiff slipped on was integral to his work. Was plaintiff involved in the same debris removal work as workers throwing & pouring it from the sidewalk bridge & sweeping it from the sidewalk below which caused it to accumulate by a dumpster where plaintiff slipped. Singh v. Manhattan Ford Lincoln, Inc., 188 AD3d 506;

First Dept. 2008. 23-1.7(e)(2) Not Dismissed. That the hazard at issue, i.e., debris accumulatedas a result of the demolition, not inherent in the work being performed by plaintiff, an electrician, at the time of the accident. Tighe v. Hennegan, 48 AD3d 201;   

Electrical Wire

First Department. 2021. 23-1.7(e)(2) Not Dismissed. Issue of fact as to whether electrical wire, on which plaintiff tripped, integral to the work since plaintiff testified that he did not know what the wire was connected to. Amaya v. Purves Holdings, 194 AD3d 536;

Cable Wire

First Dept. 2013. 23-1.7(e)(2) Not Dismissed. Issue of fact whether the cable upon which plaintiff tripped immediately before the sheetrock fell on her was inherent part of the construction of the building or debris. Rodriguez v. DRLD Dev. Corp., 109 AD3d 409;

2 by 4 Piece of Lumber

First Dept. 2020. 23-1.7(e)(2) Not Dismissed. Issue of Fact. Whether plaintiff’s trip over 2 by 4 piece of lumber blocking staircase integral to work.Plaintiff tripped over two by four piece of lumber wrapped in orange construction netting at the top of a staircase he was approaching during department store renovation. Such staircase installed by ironworkers & there was deposition testimony that it was not opened for use until after plaintiff’s accident. Plaintiff acknowledged staircase not completed when accident occurred & barricade remained in place around 3 sides of opening in the floor. Issue of fact as to whether piece of lumber blocking staircase integral to the work at time of accident. Rudnitsky v. Macy’s Real Estate, LLC, 189 AD3d 490;

Issue of Fact Whether Concrete Pieces Integral Part of Work

First Dept. 2022. 23-1.7(e)(2) Not Dismissed. Sidewalk area outside the front of the building under construction was shown to be a “working area” where cement trucks parked to deliver cement for the foundation & building floors. However, defendant raised issue of fact as to whether lighter colored dried concrete pieces on the sidewalk integral part of new construction work being performed on building. Ingrati v. Avalonbay Communities, Inc., 204 AD3d 497;

Rebar Not Integral Part of Work

First Dept. 2017. 23-1.7(e)(2) Not Dismissed. Rebar on which plaintiff tripped not integral to the work he was performing or to any work being performed on the day of the accident. Plaintiff slipped on wet discarded concrete deposited on piece of plywood on which he was walking. Pereira v. New School, 148 AD3d 410;

Plastic Tarp Not Integral Part of Work. Placed There by Other Workers on Site.

First Dept. 2016. 23-1.7(e)(2) Not Dismissed. Plastic tarp on which plaintiff slipped not integral part of the work being performed by plaintiff at time of accident. Plaintiff’s testimony raised inference the tarp was placed over debris by other companies. Lois v. Flintlock Construction Services, LLC, 137 AD3d 446; 

Door Stop Not Integral Part of Work

First Dept. 1997. 23-1.7(e)(2) Not Dismissed.While engaged in construction work,plaintiff, while walking across a room, tripped on a door stop affixed to the concrete floor.Door stop not integral part of the work as floor itself not under construction & door stop cannot be deemed protective device.Lenard v. 1251 Americas Associates, 241 AD2d 391;

Second Dept.

Rebar Not Integral Part of Work

Second Dept. 2014. 23-1.7(e)(2) Violated. Uncapped rebar not integral part of the work plaintiff was performing when accident occurred. Plaintiff fell backwards & impaled by uncapped piece of vertical rebar while working on building construction. Lopez v. NYC Dept. of Env. Protection, 123 AD3d 982;

Twine or String. Issue of Fact Whether Integral Part of Work.

Second Dept. 2010. 23-1.7(e)(2) Not Dismissed. Defendant failed to establish the twine or string upon which plaintiff allegedly tripped was integral to & consistent with work being performed within meaning of 23-1.7(e)(2). Mott v. Tromel Const., 79 AD3d 829;

 Oil Leak From Crane’s Engine Created Slipping Hazard. Not Integral Part of Work. 

Second Dept. 2002. 23-1.7(e)(2) Not Dismissed. Plaintiff slipped on oil because of oil leak in a crane’s engine.  As such, the oil was not present because of the work being performed by plaintiff. Beltrone v. City of NY, 299 AD2d 306; 

Struck by Rod on Tractor Trailer. Not Integral Part of Work.

Second Dept. 2001. 23-1.7(e)(2) Dismissed. Accident occurred as plaintiff attempting to bend a rod that was hanging over the side of a tractor trailer. As plaintiff pushed the rod, it sprang back hitting his head. Fowler v. CCS Queens Corp., 279 AD2d 505;

Fourth Dept.

Debris

Fourth Dept. 1998. 23-1.7(e)(2) Not Dismissed. While defendants contend plaintiff tripped over curbing or stone that was integral part of the road being constructed, it is equally feasible that crushed stone & debris left from the construction site were substantial factors in plaintiff’s fall. Schley v. Danco Construction, Inc., 254 AD2d 775;

Hose Not Part of Integral Work

Fourth Dept. 2013. 23-1.7(e)(2) Violated.  A hose over which plaintiff tripped was not integral part of work plaintiff was performing. Plaintiff stepped off a ladder & onto a hose that was hanging off a rack. Smith v. Nestle Purina Petcare Co., 105 AD3d 1384;

Flexwire Not Part of Integral Work

Fourth Dept. 2006. 23-1.7(e)(2) Dismissed. Plaintiff, while installing drywall, tripped on piece of flexwire one inch in diameter & 12 inches in length. Plaintiff observed employee of subcontractor throw 4 pieces of flexwire to the floor 10 minutes before the accident. As such, object causing plaintiff to trip not integral part of the work plaintiff was performing. Arenas v. Schulerhaas, 35 AD3d 1205; 

Foreign Substance Not Part of Integral Work

Fourth Department. 1999. 23-1.7(e)(2) Not Dismissed. Roofing Work. Plaintiff injured while carrying open bucket of hot tar to area on a roof. Although defendants met their initial burden, plaintiff raised issue of fact whether he slipped on a stringer of hot tar that blew from a spigot.  A stringer of hot tar is foreign substance within 1.7(d) & not integral part of the roof. Stasierowski v. Conbow Corp., 258 A.D.2d 914;

April 3. New York. Even Broader Indemnification Language. Accident “Occurring In Vicinity of Where Subcontractor Working.”

Holness v. 421 Kent Dev., LLC, 2026 NY Slip Op 02040, decided April 2, 2026, First Dept., Plaintiff, an ironworker employed by Alabama Iron Works Corp., fell from collapsing Baker scaffold when one of its wheels broke, causing the scaffold leg to break through a surface cover used to waterproof around HVAC ductwork, which Metropolis installed through a roof penetration. The surface cover masked an open gap between a roof slab & the ductwork, so that the gap was not immediately detectible when standing on the roof. Also, the roof penetration, which was created by making cuts in the roof slab, was made by a trade other than Universal, which was the roofing/waterproofing contractor on this construction project.

Broad contractual indemnification language contained in roofing/waterproofing subcontractor agreement between Universal & GC provided Universal would indemnify GC & project owners for any loss arising out of or in connection with Universal’s work. Such indemnity clause also provided that Universal would indemnify GC & owners for loss due to an act or omission of Universal’s workers, or where Universal’s personnel or equipment were in the vicinity of the accident by reason of the performance of the work. Issues of fact held whether accident arose out of performance of Universal’s work & whether Universal’s workers were in the vicinity of the work.

Comment. Such clause provides even broader indemnification obligation than “performance of the work.” However, issue of fact likely raised as to what distance constitutes “vicinity.”         

First Dept. 2015. Indemnification Claim Not Dismissed. Issue of Fact. While passing from exterior roof on construction site to interior room, plaintiff moved his left foot across two-foot high threshold in doorway, stepping into uncovered drain hole in floor directly behind threshold, causing fall. Owners failed to show they lacked constructive notice of uncovered drain hole. Subcontractor’s contract required it indemnify owner & other defendants if accident occurred, or allegedly occurred, near where subcontractor performing its work, either while subcontractor performing its work or while any of subcontractors’ work in progress was in or about such place or vicinity thereof. Issue of fact whether subcontractor failed to perform its work of covering the hole thereby causing the accident. McCullough v. One Bryant Park, 132 AD3d 491;

April 3. New York. Contractual Indemnification, Arising From “Performance of The Work,” Denied to Premises Owner as Issue of Fact Whether Such Owner Engaged in Decisions as to Means & Methods of Excavation Work With Subcontractors.

350 E. Houston St., LLC, Travelers Indem. Co. of Am., 2026 NY Slip Op 02032, decided April 2, 2026, First Dept. Plaintiff 350 E. Houston Street, LLC, contracted with Noble Construction to provide construction management services for a project constructing a building. Noble contracted Copps Foundations, Inc. to perform support of excavation & foundation piles work on the project. Copps then subcontracted with Peterson Geotechnical Construction to install micropiles & dewatering system. The owner of adjacent building alleged the excavation work damaged the foundation of the building, causing the building to shift.

350 E. Houston entitled to contractual indemnification from Copps if 350 E. Houston was held to be free of negligence. 350 E. Houston hired an engineer to conduct a prework inspection of the neighboring building & the inspector’s report, along with the fact the adjacent building did not begin to shift until well after the inspection, contradicted the conjecture by Copps’ expert that removal of a gas station sometime before such inspection could have contributed to the shift.

However, 350 E. Houston’s claim for contractual indemnification from Cops was denied. Cobbs was required to indemnify 350 E. Houston “for claims, losses, damages … demands, costs and expenses related to damage to real property in any way or measure … caused by, arise out of or in connection with the Work.” Such indemnification was denied as there was issue of fact whether 350 E. Houston took part in a decision to reject Copps and Peterson’s recommended change in the means & methods to be used in the micropiling work after Copps & Peterson found unexpected surface conditions. It was held, “a factfinder could rationally determine that 350 E. Houston’s negligence was a proximate cause of the damages.”     

Comment. Where premises owner & GC seek toobtain contractual indemnification from a subcontractor, in addition to showing plaintiff’s accident arose from the subcontractor’s “performance of the work” or negligence, owner & GC must establish they were free of negligence by obtaining dismissal of Labor Law §200 claim in a summary judgment motion.

Also. Note the decision below that plaintiff’s abandonment of §200, as held by a court, fails to establish the owner and GC were free of negligence, resulting in denial of the indemnification claim. Such owner and GC have to offer evidence establishing being free from negligence.

Second Dept. 2024. As the motion court directed dismissal, as abandoned, of the causes of action of Section 200 and common law negligence as asserted against SHS Ralph, SHS contends it is entitled to contractual indemnification since its liability under 240(1) would only be vicarious as the premises owner. Court disagreed. The motion court directing dismissal, “as abandoned,” of the cause of action alleging a violation of §200 & common law negligence as asserted against SHS was not affirmative demonstration that SHS was free from negligence. Caracciolo v. SHS Ralph, LLC, 226 AD3d 861;

April 2. New York. Prime Contractor Not Statutory Agent of Owner of GC. Labor Law §240(1) Dismissed.

Prime contractor is responsible to control and supervise the work of its employees, not the entire job site.  Think of masons, electricians, plumbers, scaffold builders, etc. as prime contractors. Such entities are not general contractors at a construction site.

Prime contractorsincur no liability for accidents arising out of work not specifically delegated to them.

Prime contractor not liable under either 240(1) or 241(6) for injuries to employees of other contractors with which it was not in privity of contract, as it had not been delegated to supervise & control plaintiff’s work.

Entity was one of several prime contractors hired by premises owner as part of renovation work, & it neither was responsible for, nor controlled or supervised any of work giving rise to plaintiff’s injury

Furnishing equipment to plaintiff not determinative of contractor having control over plaintiff’s work.

Prime Contractor Not Statutory Agent of GC. 240(1) Dismissed.

Court of Appeals

Court of Appeals. 1981. Prime contractors incur no liability for accidents arising out of work not specifically delegated to them. Subcontractor not supervise plaintiff’s work. Plaintiff injured in construction accident at golf course in Village of Endicott. New clubhouse being constructed. Owner entered into the contracts with subcontractors. Plaintiff injured while descending scaffold. GC, Cerasaro responsible for all work of the subcontractors. As defendants’ contracts with Village of Endicott & not plaintiff’s employer, the GC, such subcontractors had no ability to control plaintiff’s work or the dismantling of the scaffold. As prime contractors having no arrangement with GC, plaintiff’s employer, & therefore not in position to control plaintiff’s work, prime contractors could not be liable under 241(6). Russin v. Picciano Son, 54 NY2d 311; 

First Dept.

First Dept. 2023. ZHL was not GC within meaning of Labor Law such that ZHL had a duty to maintain overall safety of the worksite. Rather, ZHL was a prime contractor on this project. Although construction manager for the City referred to ZHL as a GC, he also testified he used the terms GC & prime contractor interchangeably, & ZHL was under a prime contract with the City for general construction work and had no authority over other prime contractors or their subcontractors. Celentano v. City of NY, 212 AD3d 456;   

First Dept. 2016. Prime Contractor Not Liable Under 240(1). Defendant Standard Waterproofing established it was not owner or GC or statutory agent of either for purposes of Labor Law & it did not supervise or control injury producing work. Evidence shows that at most, Standard was prime contractor & therefore not liable under either 240(1) or 241(6) for injuries to employees of other contractors with which it was not in privity of contract, as it had not been delegated to supervise & control plaintiff’s work. Villanueva v. 80-81 & First Assoc., 141 AD3d 433;

First Dept. 2016. Prime Contractor Not Statutory Agent of Owner. Although contract between 580 & Dry NY delegated Dry NY authority to supervise & control all work related to façade restoration work, including the safety of scaffold where accident occurred, such authority was limited only to the extent that Dry NY used the scaffold to perform its contracted for façade work. It was undisputed façade work was completed when the scaffold was dismantled. Paulino v. 580 8^th Ave. Realty Co., LLC., 138 AD3d 631;

First Dept. 2011. Labor Law Claims Dismissed. Plaintiff fell 25 feet from top of scissor lift while performing work in auditorium. While removing AC ducts, portion of air duct being removed struck the scissor lift, causing it to fall over. Irwin established it was entitled to dismissing the Complaint & all cross claims as it was one of several prime contractors hired by premises owner as part of renovation work, & it neither was responsible for, nor controlled or supervised any of work giving rise to plaintiff’s injury. Jamindar v. Uniondale Free School Dist., 90 AD3d 612;

Second Dept.

Prime Contractor Not Liable Under 240(1).  Accident Not Arise From Prime Contractor’s Work. 

Second Dept. 2015.  240(1) applies to owners, contractors & their agents.  However, prime contractors incur no liability for personal injuries arising out of work not specifically delegated to them. Bennett v. Hucke, 131 AD3d 993;

Second Dept. 2013.  Separate prime contractor not liable under 240(1) or 241(6) to employees of other contractors with whom they are not in privity of contract, as long as prime contractor not delegated authority to oversee & control activities of injured worker. Giovanniello v. EW Howell, Co., LLC, 104 AD3d 812;

Third Dept.

Third Dept. 2017. Labor Law Liability Imposed. Statutory Agent. While prime contractors are immune from liability pursuant to 241(6) where they lack contractual privity with injured plaintiff’s employer & have no authority to supervise or control work being  performed at time of accident, here, defendant was in contractual privity with TBS & owner, who delegated all mechanical work to defendant by hiring it as sole mechanical contractor for project, thereby demonstrating owner’s intent to delegate supervisory control over TBS’s work to defendant as its statutory agent. As defendant was owner’s statutory agent, Labor Law liability can be imposed upon defendant. Mitchell v. T. McElligott, Inc., 152 AD3d 928;

Third Dept. 2015. 241(6) Claim Dismissed. 241(6) not apply to prime contractors having no authority to supervise or control work being performed at time of accident. A project manager for DLC Electric established DLC Electric was a subcontractor, having contracted with GC, Bast Hatfield, for the limited purpose of performing electrical work. GC, Bast Hatfield, & not DLC Electric, had authority over safety measures on the site. As such, DLC Electric entitled to summary judgment dismissing 241(6) claim. Trombley v. DLC Elec., LLC, 134 AD3d 1343;

Third Dept. 2011. 240(1) Dismissed. No Control Over Other Contractors.  Absolute liability imposed upon owners and GCs pursuant to 240(1) & 241(6) does not apply to prime contractors having no authority to supervise or control the work being performed at the time of injury. C&F Builders was prime contractor & not coordinate or supervise electrical work on the premises. Plaintiff indicated C&F played no role in the accident. C&F had no control over plaintiff’s work & had no duty, contractual or otherwise, to enforce safety standards at the work site. Court dismissed the Section 200, 240(1) & 241 claims. Morris v. C&F Bldrs., Inc., 87 AD3d 792;  

Fourth Dept.

Fourth Dept. 2017. 241(6) Dismissed. Furnishing Equipment to Plaintiff Not Determinative of Contractor Having Control Over Plaintiff’s Work. NYS Thruway Authority hired Oakgrove Construction to work on the thruway, and Authority hired Foil-Albert Associates to inspect Oakgrove’s work. Foit-Albert subcontracted some of that work to plaintiff’s employer. Plaintiff injured in the course of his work when struck by vehicle.  Under Labor Law 241(6), while owners & GCs are generally absolutely liable for statutory violations, other parties may be liable under such statute only if they are acting as the “agents” of the owner or general contractor when given authority to supervise and control the work being performed at the time of the injury. Both Oakgrove & Foit-Albert were both prime contractors & plaintiff’s employer contracted only with Foit-Albert. Oakgrove not supervise or instruct plaintiff. Rather, plaintiff reported to supervisor at Foit-Albert. Oakgrove providing GPS units for plaintiff to use is misplaced as determinative factor on issue of control is not whether a contractor furnishes equipment but rather, whether it has control of work being done & authority to insist proper safety practices are followed. As Oakgrove had no authority over plaintiff’s 241(6) action against Oakgrove dismissed. Knab v. Robertson, 155 AD3d 1565;

April 2. New York. Labor Law §240(1) Imposed. No Anchorage Point to Tie Off Safety Harness in Fall From Roof.

Portillos v. Moxie Prop. Solutions LLC, 2026 NY Slip Op 50425(U), decided March 17, 2026, Hon. Adam Silverman, Supreme Court, Albany County.

Plaintiff fell from a roof of 2-story house in the City of Syracuse while working as a roofing subcontractor for Erie Construction. When plaintiff went to the roof, he had a safety harness provided by the company owner, and a base used to set up the fall protection. There was no fall protection in place and no safety nets. Plaintiff was instructed by the owner to identify a wooden beam at the apex of the roof of the house to install a metal base to which the rope & safety harness would attach. Plaintiff testified he was not taught how to set up the fall protection. Plaintiff looked for the beam for 20 minutes without success. Plaintiff slipped on the roof, causing him to fall off the roof.

Motion Court cited the rule, “as a matter of law, a safety harness is inadequate to provide proper protection against falls from elevated height in the absence of an appropriate anchorage point or place to tie off the safety harness.” It was held plaintiff established, prima facie, that while subjected to elevation-related risk, he was injured from defendants’ failure to provide an appropriate place to attach his safety harness. Such lack of anchorage point was proximate cause of the accident.

Defendants argue plaintiff was instructed not to stand on the roof. It was held, “instruction to avoid engaging in unsafe practices is not itself a safety device.” Also, failure to follow instruction by employer to avoid unsafe practices is not a refusal to use available, safe & appropriate equipment and as such, is not a proximate cause of the accident.          

Comment.

Safety harness defined by OSHA as “straps that secure about the employee in a manner to distribute the fall arrest over at least the thighs, pelvis, waist, chest & shoulders.”

Safety harness or lanyard to be effective requires a place to tie off the safety harness to anchorage points as part of fall arrest system. Fall arrest system consists of a lifeline & shock absorbing lanyard connected to safety harness. Other end of the lifeline is connected to anchor point.

Anchorage points can be generated by engineered system or by a standing object at work site.

Lanyard is defined by OSHA as “flexible line of rope, wire rope, or strap that generally has a connector at each end for connecting the body belt or body harness to a deceleration device, lifeline or anchorage.”

OSHA requires workers 6 feet or more off the ground must be tied to anchorage point, if no guardrails or safety net systems in place. 1926.502(d)(16)(iii).

OSHA requires anchorage point must be able to support 5000 pounds of force per person tied off to it or, designed, installed & used, under the supervision of qualified person, as part of complete fall protection system with safety factor of at least two. Safety factor of two is understood by examining OSHA’s fall arrest standards. OSHA 1910.140(d) requires engineered fall arrest systems to limit the force applied to a worker when arresting a fall to a maximum of 1800 pounds. Such value is known as Maximum Arresting Force (MAF). To meet the requirement for a safety factor of two, anchor point provided by the engineered system must be able to support a load of 3600 pounds, or two times the MAF. (Rigid Lifelines, January 28, 2022) 

First Dept.

First Dept. 2025. Navaro v. Joy Constr. Corp., 241 AD3d 446. Plaintiff fell from partially constructed “hanging scaffold” being hoisted. It was held plaintiff established a prima facie case for summary judgment on the §240(1) claim as he testified there was no “appropriate anchorage point to tie off his safety vest while still being able to perform his work. Defendants failed to submit evidence that a roof affixed lifeline would not have prevented the fall. While defendants also contested necessity of hoisting suspended scaffold above the tree line to finish the construction, no evidence was offered in support of such assertion. 

First Dept. 2024. No Overhead Attachment Point. Plaintiff established he was not provided with adequate safety devices, both because of the lack of overhead attachment point for his self-retracting lifeline, also known as a yo-yo and that the plank on which he was standing was not secured. While defendants’ expert opined the yo-yo was designed to stop a fall within 24-54 inches, the expert ignored plaintiff’s expert’s opinion that the failure to provide an overhead attachment point prevented the line from engaging as designed, causing plaintiff to fall 10 to 12 feet. Plaintiff’s testimony that the lifeline itself was not defective was of no moment, given that defendants did not provide an appropriate overhead attachment point, nor did defendants establish that a Doka System was available for plaintiff to use. De Souza v. Hudson Yards Constr. II, LLC, 2024 NY Slip Op 05276; 

Flatbed Truck

First Dept. 2023. Plaintiff fell from top of scaffolding materials stacked on back of flatbed truck. Scaffolding materials stacked on truck so that the top was 18 feet off ground. As plaintiff walked on such materials he tripped over a board, falling to sidewalk. Although plaintiff wore safety harness, he was unable to tie it off to the back of truck. 240(1) awarded as plaintiff fell from a height while performing activity covered by 240(1) & not provided proper safety device. That plaintiff’s fall was precipitated by his tripping on one of the boards on back of truck, not remove case from 240(1). Agurto v. One Boerum Dev. Partners LLC, 221 AD3d 442;  

First Dept. 2017. Plaintiff’s testimony that he fell from scaffolding materials stacked atop the surface of a flatbed truck, 10 feet off the ground, & was not provided with safety device that would have prevented his fall, was sufficient to establish imposition of 240(1) liability. Although plaintiff wearing safety harness, no place on the flatbed truck where harness could be secured. Idona v. Manhattan Plaza, Inc., 147 AD3d 636;

Scaffold

First Dept. 2023. Plaintiffs standing atop a ladder-scaffold performing stucco work on the façade of a building when the scaffold suddenly collapsed, causing a fall of 15 feet to the ground. Plaintiffs not wearing fall-arrest safety devices as there were no tie off locations. Plaintiffs awarded summary judgment on 240(1) claim. Lemache v. Elk Manhasset LLC, 222 AD3d 951;   

First Dept. 2023. 240(1) Liability Imposed. While plaintiff power washing paint off of building while standing on scaffold, fell through 48-inch gap between scaffolding planks & windows of building. Plaintiff submitted his deposition testimony of not being provided with harness or other safety device & expert’s opinion that even if a harness had been provided, there were no anchor points to tie off. 240(1) imposed. Mena v. 5 Beekman Prop. Owner LLC, 212 AD3d 466;

First Dept. 2021. 240(1) Liability Imposed.  No place to attach harness. Plaintiff established 240(1) liability by uncontroverted evidence he fell 30 feet from scaffolding he was dismantling & fall caused by failure to provide adequate protection, namely a safety line or place to attach his harness. Badzio v. East 68^th St. Tenants Corp., 200 AD3d 591; 

First Dept. 2018. 240(1) Liability Imposed. As scaffold not have railings, toe boards, or cross-bracing & there was no place for plaintiff to tie off his safety harness, 240(1) imposed. Plaintiff also testified that while on the scaffold, he tripped on a block, falling backward off scaffold to ground. Gomes v. Pearson Capital Partners LLC, 159 AD3d 480;

First Dept. 2015. 240(1) Liability Imposed. Scaffold provided could not reach the window that plaintiff was required to caulk, without being elevated over the sidewalk bridge. Construction superintendent testified plaintiff had to place the scaffold over the sidewalk bridge to reach the windows so that he could complete the job. Leaning at extreme angle against sidewalk bridge, the scaffold collapsed and fell. Defendants failed to show plaintiff was able to connect his safety harness before reaching the top of the sidewalk bridge or that, even if had done so, it would have prevented his fall. Medina v. 42^nd & 10^th Assoc. LLC, 129 AD3d 610;

First Dept. 2011. Defendant submitted no evidence that plaintiff knew he should have used his safety harness under these circumstances, or that he knew his partner had a suitable 50-foot lifeline to which the harness could have been attached. While defendants argued plaintiff could have tied his 6-foot lanyard to a nearby beam or staircase, no evidence submitted that either of these options appropriate anchorage sites. Cordeiro v. TS Midtown Holdings, LLC, 87 AD3d 904;

First Dept. 2017. Issue of Fact Whether Scaffold Had Anchoring Points For Worker to Tie Off.  Plaintiff fell from scaffolding upon stepping on pipe brace that gave way. While plaintiff wearing a safety harness and double lanyard, issue of fact whether scaffold provided anchoring points at which a worker could tie off and whether plaintiff could have used his double lanyard to remain tied off at all times.   Giordano v. Tishman Constr. Corp., 152 AD3d 470; 

Wooden Floor Joist

First Dept. 2022. Plaintiff Not Recalcitrant Worker. Plaintiff fell after stepping on a wooden floor joist trying to access the basement & that although he was wearing a harness, he was not tied off, as no place to tie off.Martinez v. Kingston 541, LLC, 210 AD3d 556;

Roof

First Dept. 2022. Plaintiff made prima facie showing for 240(1) claim by submitting testimony of there being no appropriate place to tie off on the sloped roof from which he fell. Defendants’ contention that fall protection system was installed on roof before date of accident based on unauthenticated documents & vague testimony of those without personal knowledge. Even if system was installed, no evidence plaintiff was trained in its use. Yocum v. USTA, 208 AD3d 1124;

Sidewalk Bridge

First Dept. 2021.  Plaintiff who fell between 16-24 feet to the ground when corrugated metal flooring of sidewalk bridge on which he was standing bent downward, established 240(1) liability. While plaintiff was wearing harness, sidewalk bridge not have a lifeline to which he could attach a safety line, which was 7-9 feet long. Gomez v. Trinity Ctr. LLC, 195 AD3d 502;

Standing on Steel Tube

First Dept. 2021. 240(1) Liability Imposed. Anchor Points To Tie Off Safety Harness Not Available at Time of Accident. Plaintiff standing on steel tube on third floor of what was to be a theater, 12 feet above the second floor. While receiving a piece of decking from coworker, steel tube suddenly shifted causing him to fall backward onto a tube on the same level. Plaintiff able to avoid falling to level below by hooking his feet around the tube. Plaintiff had safety harness & lanyard at time of accident but there was no place to tie off. Ging v. FJ Sciame Constr. Co., 193 AD3d 415;

Glazier Work

First Dept. 2013. 240(1) Liability Imposed. Plaintiff, a glazier, provided a scissor lift to perform caulking in glass lobby at 35 feet. Because of lobby’s V-shaped, workers could not place scissor lift directly adjacent to the windows, leaving a gap of 3 feet between workers on scissor lift & windows. While plaintiff had on safety harness, no anchorage point to which lanyard could have been tied off. Hoffman v. SJP TS, Inc., 111 AD3d 467;

Billboard

Issue of Fact

First Dept. 2015. Plaintiff’s Motion For 240(1) Denied. Issue of fact whether plaintiff could have tied off. While painting over graffiti on billboard, plaintiff stood on stack of three concrete blocks. He lost his balance reaching up to loosen one of straps that held the image to billboard frame so he could paint underneath it. Although plaintiff had truck equipped with cherry picker extending 80 feet, with controls inside the basket; safety harness & lanyard, & two ladders (8 feet & 24 feet), not attempt to use any of such devices. Plaintiff argued he could not paint inside cherry picker as concrete blocks & light fixtures in front of billboard were in the way. He took off his safety harness as no place to tie off on billboard. While plaintiff supplied with 4 safety devices, he chose not to use any of them, opting instead to use concrete blocks, whose purpose were to act as counterweight to billboard, not act as platform. There was testimony plaintiff could have tied off on billboard. Issue of fact whether plaintiff’s actions sole cause of accident. Quinones v. Olmstead Props., Inc., 133 AD3d 87;

Second Dept.

Second Dept. 2017. 240(1) Liability Imposed. Plaintiff fell through skylight of building while engaged in asbestos work. Plaintiff not wearing harness when he fell through skylight & anchor points for harnesses not completed at time of accident. 240(1) imposed as plaintiff not provided with necessary protection for gravity-related risk & such absence of protection proximate cause of his injuries. Cacanoski v. 35 Cedar Place Assoc., LLC, 147 AD3d 810;

Second Dept. 2012. 240(1) Liability Imposed. No safety lines available. To perform his task to establish connections between steel beams, plaintiff walked along top of steel beam. He wore a safety harness with a hook that could be attached to a safety line. At the first location he worked, he attached himself to a safety line. However, as he walked along beam to a second location, about 20 feet away, no safety lines available. Also, no safety netting below. Plaintiff slipped on ice on beam, causing fall. Vetrano v. J. Kokolakis Contr., Inc., 100 AD3d 984;

Second Dept. 2009. 240(1) Liability. No Place to Tie Off. Plaintiff, ironworker, working on Whitestone Expressway where he was part of crew bolting lateral bracing to road beams on elevated highway under construction. Wearing safety harness & lanyard. However, no safety cables in work area to tie off lanyard. As a result, plaintiff tied lanyard around steel “cross bracing stiffener” which he believed was stationary. But when coworkers began operating hydraulic jack, cross bracing stiffener moved & one end became detached from beam to which it was attached. This resulted in plaintiff’s lanyard slipping off, a fall of 15 feet to ground. Plaintiff established not violate any instruction to use safety equipment & was not instructed to use any of stationary objects which defendants claim he should have used instead of cross bracing stiffener. Balzer v. City of NY, 61 AD3d 796;

Third Dept.

Third Dept. 2008. While plaintiff wearing safety harness with lanyard at time of accident, issue of fact whether a proper tie off point for lanyard provided. Supervisor testified that because welders change work areas frequently, they weld their own pad eyes to tie themselves off. Plaintiff submitted expert opinion that it was defendant’s duty to provide proper fall protection system, such as suspended steel cable or proper tie off points independent of the structure being removed. As such, issue of fact whether defendant breached its duty. Petticrew v. St. Lawrence Cement, Inc., 57 AD3d 1266; 

Fourth Dept.

Fourth Dept. 2018. Issue of Fact. Plaintiff’s motion denied. Plaintiff fell 15 feet from scaffold while engaged in sandblasting work, as he was not wearing safety harness. Plaintiff testified he had safety harness with 6-foot lanyard & he “probably” could have tied lanyard off to cross-bracing. Plaintiff testified that if he had tied his lanyard off to the cross-bracing he would not have fallen 15 feet to the pavement. Plaintiff’s summary judgment motion denied. Weitzel v. State of NY, 160 AD3d 1394;

April 2. New York. LIFTS. §240(1) Dismissed

Entity not supply defective boom lift. Exited site before accident.

Bucket truck not defective.

Usual & ordinary dangers at work site.

Sole proximate cause.

Issue of fact as to sole proximate cause.

240(1) Dismissed

Entity Not Supply Defective Boom Lift. Exited Site Before Accident.

Second Dept. 2017. 240(1) Dismissed. F&S Contracting established it discontinued its work on project on May 6, 2013, which was before plaintiff’s accident. As F&S Contracting not owner, contractor, or agent involved in project, it had no responsibility for procuring or supplying allegedly defective boom lift involved in accident & exercised no supervision or control over plaintiff’s work. While painting elevated steel beam, plaintiff pinned between railing of boom lift he was using & steel beam. As such F&S Contracting could  not be held liable under any theory of liability of Sections 200, 240(1) and 241(6). Haidhaqi v. MTA, 153 AD3d 1328; 

Bucket Truck Not Defective

Second Dept. 2017. 240(1) Dismissed. Plaintiff was electrical foreman. Plaintiff directed to assist in installation of antenna atop 60-foot utility pole leased by T-Mobile. Plaintiff climbed into aerial bucket, attached to a boom on bucket truck & tried to raise the bucket so as to access top of utility pole. However, lift malfunctioned & bucket remained stuck in cradle position on the truck. As such, bucket not elevate. While attempting to exit bucket he fell 25 feet to ground. Plaintiff attempted to exit bucket through standard practice of sitting on the edge & turning around. No evidence plaintiff instructed to exit the bucket differently. As such, defendants could not avoid 240(1) liability by recalcitrant worker defense. However, defendants demonstrated bucket truck not defective or inadequate. Although dielectric liner missing from the bucket, plaintiff testified such device designed to protect workers from electrical shocks & not falls. As such its absence not constitute a 240(1) violation. As such defendants entitled to summary judgment on 240(1) claim. Robinson v. National Grid Energy Mgt., LLC, 150 AD3d 910;   

Scissor Lift. 240(1) Dismissed. Not Gravity Related Accident.

Fourth Dept. 2015. 240(1) Dismissed. Not Gravity Related Injury. Back Injury. Plaintiff & coworker installing door in second floor bedroom of residence. Plaintiff & coworker standing on raised scissor lift, positioned at distance of 2 feet away from opening to bedroom. Gap existed because of large slate steps at ground level, preventing scissor lift from being positioned closer to residence. As plaintiff & coworker lifted door & were maneuvering it across 2 foot gap, plaintiff felt twinge or pop in lower back. Here, door not fall or descend even de minimis distance owing to application of force of gravity upon it.  Although back injury tangentially related to effects of gravity upon door he was lifting, not caused by elevation related hazards encompassed by 240(1). Carr v. McHugh Painting Co., Inc., 126 AD3d 1440;

Usual & Ordinary Dangers at Work Site. Stepping Out of Aerial Bucket. 240(1) Dismissed.

Fourth Dept. 2007. 240(1) Dismissed. Plaintiff assigned task of detaching a telephone wire from one utility pole & raising telephone wire onto 2 newly built poles. After repositioning telephone wire, plaintiff lowered aerial bucket in which he was performing such work until it 6-12 inches above ground. Stepping out of aerial bucket, plaintiff fell into drainage ditch. Here, aerial bucket used by plaintiff was effective in preventing plaintiff from falling while attaching telephone wire to new poles.  However, plaintiff’s fall to drainage ditch not within protection of 240(1) as it resulted from usual & ordinary dangers at work site & no elevation related risk present. Kaleta v. NYS Elec. & Gas Corp., 41 AD3d 1257;

Plaintiff Fell From Boom Lift. Not Attached to Lanyard. Sole Proximate Cause of Accident. REVERSED.

Third Dept. 2010. 240(1) Dismissed. Plaintiff Sole Proximate Cause of Accident. Failed to Attached Safety Harness to Basket. Plaintiff installing rubber membranes & metal flashing on second story windows of building. To reach windows, plaintiff utilized mechanical telescoping boom lift. Attached to boom lift was metal basket in which plaintiff, coworker & their tools located. 3 of 4 sides of basket were enclosed by permanent metal rails. Fourth side enclosed by metal gate that opened into the basket to allow for ingress & egress of workers. Plaintiff & coworker provided safety harnesses & lanyards attached to basket. Coworker noticed plaintiff not attached the lanyard on his harness to basket & reminded him to do so. Coworker then began work & a few moments later turned around & saw plaintiff was gone & gate on basket in open position. Plaintiff fell 30 fell landing on narrow slab of concrete. Plaintiff’s action sole proximate cause of accident. Grove v. Cornell Univ., 75 AD3d 718; Reversed on appeal at 17 NY3d 875, finding issue of fact.

First Dept. 2010. Issue of Fact as to Sole Proximate Cause. Spider Basket. Plaintiff Exited Basket. While working on GW Bridge, plaintiff fell from one of bridge towers when his sandblasting hose exploded after he attempted to unclog it. While plaintiff used spider basket to access elevated levels of the tower, he had to exit such basket to be able to perform sandblasting. After explosion, he could not use basket to descend to safe level & was forced to remove his safety harness to climb down to lower platform, where he fell. Defendant claimed plaintiff’s decision to exit basket & climb down sole proximate cause of accident. Issue of fact. Latchuk v. Port Auth. of NY & NJ, 71 AD3d 560;    

First Dept. 2024. Plaintiff’s 240(1) Motion Denied. Plaintiff climbing down from retracted man lift upon which he was performing overhead fire sprinkler work. While holding onto the lift’s affixed metal ladder, he slipped due to moisture on its metal rungs & fell 5 feet to the ground. Issue whether plaintiff provided with devices which shall be so constructed, placed& operated as to give proper protection. While plaintiff testified he normally wore a harness for the type of work he was performing, he failed to establish there was a safety device of the kind enumerated in 240(1) that would have prevented his fall as liability contingent upon failure to use, or inadequacy of device. Whether a device of the sort contemplated by 240(1) that would have prevented a fall presents an issue of fact precluding summary judgment for plaintiff. Hartigan v. Gilbane Bldg., 2024 NY Slip Op 03231;

FORKLIFTS

240(1) Dismissed.

Forklift accident not arise from construction work. Not “repair work.”

Not a gravity related accident.

Not proximate cause of accident.

Forklift Accident Not Within Protection of 240(1). Not “Repair Work.” 240(1) Dismissed.

Second Dept. 2019. Plaintiff, a HVAC technician, assigned to service heating unit at S&K’s facility. To enable plaintiff to reach heating unit, which was in ceiling, S&K employee placed packets of shingles atop forks of forklift. Such employee then raised forklift while plaintiff stood atop packets of shingles. Plaintiff slipped & fell off packets of shingles. Plaintiff testified belts generally should be replaced once a year. Such activity of plaintiff not constitute “repair work.” Dahlia v. S&K Distrib., LLC, 171 AD3d 1127;

Not Gravity Related Accident Second Dept. 2016. 240(1) Action Dismissed. Plaintiff standing on ladder installing nuts & bolts into elevated steel beam while working for GI Iron Works. Plaintiff’s foreman, while operating a hi-lo forklift that either struck or pushed elevated steel beam connected to beam plaintiff working with, causing steel beam to move & pin plaintiff’s elbow against concrete wall. Accident not involve gravity related or elevation related hazard. Guallpa v. Canarsie Plaza, LLC, 144 AD3d 108;

April 1. New York. Entity Can Bring Claim Against a Subcontractor From Whom It is Seeking Contractual Indemnification And Action Against Subcontractor’s Insurer From Whom It is Seeking Additional Insured Coverage.

Daniello v. JT Magen & Co., Inc., 2026 NY Slip Op 01913, decided March 31, 2026, First Dept. The decision held, “USIS, Inc.’s argument that L&K is pursuing an insurance coverage disputed claim masquerading as an indemnity claim is unavailing. It is well settled that a party may pursue contractual indemnification in addition to seeking additional insured coverage from the indemnitor’s insurer.”

Decision cited the 2020 First Dept. decision, Lexington Ins. Co. v. Kiska Dev. Group LLC, 182 AD3d 462, where defendants/third party plaintiffs Kiska Development and 14 West moved for summary judgment against Bayport Construction for contractual indemnification. Kiska also moved for summary judgment on the claim that it was an additional insured under the policy issued to Bayport by third-party defendant Mt. Hawley Insurance Company.

April 1. New York. Comments on Labor Law §240(1) Defenses.

240(1) is limited to a worker falling from a height or struck by a falling object improperly secured or that should have been secured. Falling objects can encompass objects on the same level as a worker that fall over. If the defense is the object only fell a short distance, defendant should provide the weight of the object.  A thousand pound steel beam falling a minimal distance can inflict significant bodily injury, resulting in 240(1) liability. Know the weight of the falling object as well of how far it fell.   

If the plaintiff suffers a fall from an elevated height, how far does plaintiff have to fall for a 240(1) violation?  While courts have not established a minimum height, defendants have a better chance of dismissing 240(1) if the fall can be measured in inches and not feet.

Do not waste your time asserting the premises owner and GC had no control over the injury producing work as to plaintiff’s action. 240(1) imposes strict liability against premises owners and GCs. However, a showing of lack of control and supervision over injury producing work is required for owner and GC’s contractual and common law indemnification claims against a subcontractor.  While an owner or GC usually is indemnified by subcontractor, the owner and GC are still liable under 240(1). Meaning that if a subcontractor’s insurance is insufficient to cover a settlement or loss, insurers owner and GC are on the hook for the remaining amount.  

Defeating 240(1), such owners and GCs must establish plaintiff’s actions were the sole proximate cause of the accident. Do not confuse sole proximate cause with comparative negligence. If a 240(1) violation is established, comparative negligence is not a defense.

Analysis of §240(1) claims includes who you are as a defendant, i.e., owner, GC, agent, subcontractor, construction manager, site inspector, etc. An agent is an entity controlling and supervising the injury producing work and is liable under §240(1).  

March 31. New York. Where Labor Law §240(1) Violation Was Not Contested, Appellate Court Erred in Reinstating Affirmative Defense of Culpable Conduct.

Ravelo v. RXR Old Slip Owner, LLC, 2026 NY Slip Op 01927, decided March 31, 2026, First Dept. Such decision holds that where Labor Law §240(1) was violated, affirmative defense of culpable conduct is not dismissed. As §240(1) imposes strict liability, culpable conduct is not a defense. Sole proximate cause is a defense, not culpable conduct.  

Defendant RXR owned subject building in Manhattan & leased 5 floors to defendant Cahill. Cahil retained defendant Henegan as GC to build out & install interior finishes on leased floors. Henegan retained Eurotech to install framing, drywall & ceiling. Plaintiff, a carpenter, employed by Eurotech, claimed he suffered an accident while installing sheetrock in the ceiling. To reach the ceiling, plaintiff was instructed to position & use a Baker scaffold, which was 3 feet above the ground, but had no safety rails.

Plaintiff testified he could not recall if he locked the scaffold’s wheels or whether he checked whether such wheels were locked. While plaintiff was working, Baker scaffold shifted, causing him to lose balance & fall 3 feet to the ground.

Appellate Court held Supreme Court should not have “dismissed defendants’ defense of culpable conduct, as plaintiffs did not demonstrate that the defense had no merit. The issue of culpable conduct is not moot, notwithstanding that defendants do not appeal from that portion of Supreme Court’s order as granted plaintiffs’ motion for summary judgment on liability on their Labor Law §240(1) claim.”

But because the Supreme Court granted plaintiff summary judgment on the §240(1) action, which is a strict liability statute, plaintiff’s “culpable” actions do not defeat such claim or raise an issue of fact. Only if the plaintiff’s actions were the sole proximate cause of the accident will §240(1) be dismissed. As the Baker scaffold had no safety railings, plaintiff’s actions could not have been the sole proximate cause of the accident.

Appellate Court decision cited 2016 First Dept. decision, DaSilva v. Everest Scaffolding, Inc., 136 AD3d 423, which held plaintiff established, prima facie that his accident was proximately caused by a violation of Labor Law §240(1) through his testimony that he fell off a scaffolding frame onto a scaffolding platform while attempting to remove a staple from plastic covering on the building exterior while propping himself up on a cross-brace of the frame. He climbed on to the cross brace because the staple was 6 feet above his reach when he stood on the platform. The decision denied the recalcitrant worker defense.

In DaSilva, it was held Labor Law §200 and common law negligence were not academic in a case where §240(1) was imposed. But such violations were not against the plaintiff but against subcontractors. There was no claim plaintiff was the proximate cause of the accident. There, the issue was whether subcontractors were negligent, not whether plaintiff was negligent.     Here, defendants did not appeal Supreme Court’s dismissal of affirmative defense of culpable conduct because the Supreme Court held §240(1) was violated with the fall from the Baker scaffold. As such, the appellate court’s decision to “reinstate” the affirmative defense of culpable conduct was in error. Affirmative defense of culpable conduct not defeat the strict liability of §240(1).

March 31. New York. Ladder Unsecured. Falling Object Striking Ladder or Worker on Ladder. 240(1) Liability Imposed.

Comment. Object falls at work site and during its descent strikes the ladder and/or worker, causing ladder to move.  As it is foreseeable a ladder could be struck by a falling object at a work site, it is held ladder not secured, resulting in 240(1) liability.  Ladder not defective but 240(1) liability as ladder not properly secured.

Falling Objects Striking Ladder or Worker on Ladder

Pipes;

Pieces of masonry;

Sheetrock;

Beam;

Debris;

Spring Assembly;

Sliding metal studs;

Duct;

Pieces of cut wood;

First Dept.

Sheetrock Struck Worker While on Ladder

First Dept. 2021. 240(1) Liability Imposed. Plaintiff fell from 6 foot A-frame ladder. Placed piece of cut sheetrock on ladder he was using & climbed to 4^th step of the ladder which was 4 feet above ground. He then placed piece of sheetrock against ceiling beam but sheetrock fell hitting his head. Plaintiff then attempted to grab ladder with both hands but ladder began shaking & moved, causing a fall. Plaintiff’s supervisor found him on the floor with collapsed ladder next to him. 240(1) violated by failing to secure the ladder against movement or slippage & to ensure it remained steady. Defendants also failed to guard against plaintiff’s risk of falling from ladder while using one hand to hold sheetrock in place & other hand to operate a drill. No issue of fact falling sheetrock was an intervening superseding cause of accident. Ping Lin v. 100 Wall St. Prop. LLC, 193 AD3d 650;  

Debris

First Dept. 2020. 240(1) Liability Imposed. Unsecured ladder knocked over during demolition work. 240(1) established where plaintiff performing demolition work & unsecured ladder he was using to remove a ceiling was struck by a piece of falling metal debris, causing him & ladder to fall to ground. Avila v. Saint David’s Sch., 187 AD3d 460;

Beam

First Dept. 2016. 240(1) Liability Imposed. Unsecured ladder fell after struck by falling beam. 240(1) imposed where fall from inadequately secured ladder struck by falling beam after plaintiff cut the beam in 2 pieces. Court denied sole proximate cause & comparative negligence assertions. Guaman v. Ansley & Co., LLC, 135 AD3d 492;

Spring Assembly Hitting Ground Caused Ladder to Move

First Dept. 2010. 240(1) Liability Imposed. Rolling Gate. Plaintiff hired to repair inoperative rolling gate permanently affixed to structure used at commercial parking facility. Such work required removal of 300-pound tube & spring assembly from brackets securing it to top of garage entrance, more than 10 feet above ground. Plaintiff improvised pulley system consisting of a length of chain draped over upper rung of his own extension ladder & attached to the assembly. As plaintiff & coworker lowering the assembly, one end struck the ground, causing ladder to move, causing a fall. Only safety device made available to plaintiff was A-frame ladder. Failure to provide adequate safety device resulted in 240(1) liability. Defendants failed to explain how A-frame ladder would have provided adequate protection. Mata v. Park Here Garage Corp., 71 AD3d 423;  

Metal Studs Sliding Against Ladder

First Dept. 2012. 240(1) Liability Imposed. Plaintiff testified he placed the ladder 6 inches from stack of metal studs & that as he ascended ladder, he heard a noise, which was sound of metal studs sliding against the ladder, causing it to fall. Violation of 240(1). Plaintiff not sole proximate cause of accident. Lack of evidence plaintiff aware that stacked pile of studs was not secured when he placed the ladder near it. Taylor v. One Bryant Park, LLC, 94 AD3d 415;

Falling Duct During Asbestos Abatement

First Dept. 2008. 240(1) Liability Imposed. Plaintiff, while performing asbestos abatement work, removing heavy duct from ceiling by cutting it with acetylene torch. While plaintiff & coworker started such work on scaffold, plaintiff decided it would be safer if he set up ladder adjacent to scaffold. As plaintiff standing on ladder, a portion of duct fell, striking plaintiff & ladder, causing a fall. As plaintiff not provided with adequate safety device, 240(1) liability imposed. No evidence contradicting plaintiff’s assertion ladder was safer method as scaffold too small for employees to safely stand on while working & plaintiff never instructed not to use ladder. Campuzano v. Board of Educ. Of City of NY, 54 AD3d 268;

Second Dept.

Piece of Cut Wood Struck Ladder

Second Dept. 2024. 240(1) Imposed. Plaintiff testified he was directed to cut a piece of wood that was above his head, that he determined he needed a ladder  to cut the wood & that upon ascending the ladder & cutting the wood , the wood struck plaintiff & ladder, causing both to fall to ground. Cevallos v. WBB Constr., Inc., 227 AD3d 657;

Falling Pipe

Second Dept. 2023. Plaintiff’s deposition testimony was that accident occurred when ladder he was standing on was struck by a falling pipe & fell over. Sufficient to establish 240(1) liability. Mora v. 1-10 Bush Term. Owner, LP, 214 AD3d 785;

Piece of Duct Being Removed From Ceiling

Second Dept. 2014. 240(1) Liability Imposed. Ladder Not Adequately Secured. While working as laborer and standing near top of 10 foot A-frame ladder & removing duct work from ceiling, 10 foot long piece of duct work struck him in the back, knocking him to ground. Where there is a fall from a ladder, it must be demonstrated ladder defective or inadequately secured & failing to secure ladder substantial factor of accident. Plaintiff established absence of adequate safety devices to protect plaintiff from falling. Robinson v. Bond St. Levy, LLC, 115 AD3d 928;

Worker on Ground Struck by Falling Ladder

Second Dept. 2013. 240(1) Issue of Fact. Plaintiff walking past 20-foot extension ladder which a worker was using to scrape ceiling. When ladder suddenly fell, plaintiff struck by falling ladder & worker. Plaintiff’s deposition testimony raised issue of fact whether ladder & worker fell on him because of absence or inadequacy of safety device of kind enumerated in 240(1). Injury occurred when ladder proved inadequate to shield injured worker from harm directly flowing from application of force of gravity to object or person. Torres v. Perry St. Dev. Corp., 104 AD3d 672;

Masonry Piece

Second Dept. 2012. 240(1) liability imposed as plaintiff fell from unsecured ladder on which he was standing when piece of masonry falling from a wall hit ladder. Kun Sik Kim v. State St. Hospitality, LLC, 94 AD3d 708; 

Pipe

Second Dept. 2011. 240(1) Liability Imposed. Falling Object Struck Ladder. Plaintiff, a laborer, was instructed to cut a pipe & remove a pipe located 10 feet above the ground. Plaintiff performed work on A-frame ladder. While engaged in such work, pipe snapped & fell, striking ladder, causing plaintiff to fall. Durmiaki v. International Bus. Machs. Corp., 85 AD3d 960;

Fourth Dept.

Ducts Fourth Dept. 2023. 240(1) Liability Imposed. Ladder Fell After Being Struck by Object. Plaintiff was removing ductwork during course of installing a new plumbing, hearing & cooling system in building. Such ducts were in long strips, which were first removed from straps holding them. While on ladder, a duct being removed from its straps slipped from his hand, hit a wall, striking plaintiff’s ladder. Plaintiff established ladder placed in manner failing to provide protection. Although defendants’ expert opined 240(1) was not violated because stable ladder was provided that was sufficient for him to safely perform the work, evidence that ladder was structurally sound & not defective not relevant on issue of whether it was properly placed. Although coworker testified he believed duct fell because of plaintiff’s failure to hold it securely & plaintiff fell from his failure to keep his balance, court concluded such testimony established, at most, contributory negligence. As plaintiff established statutory violation, his actions not sole proximate cause of accident. Calloway v. American Park Place, Inc., 217 AD3d 1473;

March 30. New York. §240(1). Plaintiff Not Recalcitrant Worker. Fall From Ladder.

Rivas v. Coney Is. Site 1824 Houses, Inc., 2026 NY Slip Op 31088(U), decided March 16, 2026, Hon. Ingrid Joseph, Supreme Court, Kings County. Plaintiff fell from a ladder while painting a balcony. In an affidavit, plaintiff’s foreman instructed plaintiff, prior to plaintiff’s accident, not to climb up onto the ladder to do work and leave such ladder work to younger coworkers. Motion Court noted that plaintiff’s foreman had previously instructed plaintiff not to use the ladder, the foreman was not present at the construction work on the day of plaintiff’s accident.

Plaintiff’s foreman further stated in his affidavit that another person was the foreman on the accident date and did not “think: such foreman gave plaintiff and his coworkers instructions the morning of the accident. Given such statement, Motion Court held plaintiff’s assertion that he was instructed to use the ladder on the accident date was unrebutted. As no evidence plaintiff not instructed to use the ladder that day, there was no issue of fact & plaintiff granted summary judgment as to the §240(1) cause of action.   

Comment. Recalcitrant Worker Defense. 4 Showings Required.

Adequate safety devices available to plaintiff.

Plaintiff knew safety devices were available & plaintiff aware expected to use safety devices.

Plaintiff chose for no good reason not to use safety devices.

Accident not have occurred if plaintiff used safety devices.

Court of Appeals

Failing to Follow Instructions

Court of Appeals. 1993. Not Recalcitrant Worker. Plaintiff fell from a ladder. Plaintiff was repeatedly instructed to use scaffold, not a ladder, when sandblasting railroad cars. Held that an instruction by employer or owner to avoid using unsafe equipment or engaging in unsafe practices is not a safety device in the sense that plaintiff’s failure to comply with such instruction is equivalent to refusing to use available, safe and appropriate equipment. Evidence of instructions does not, by itself raise issue of fact sufficient to support recalcitrant worker defense. Gordon v. Eastern Ry. Supply, 82 NY2d 555;

“Belief” of Plaintiff’s Supervisor That Available Ladders Were in Vicinity of Plaintiff’s Work Area Insufficient For Recalcitrant Worker Defense

In a First Dept. decision issued on October 29, 2024, DeOleo v. 90 Fifth Owner, LLC, 2024 NY Slip Op 05306, plaintiff was assigned to caulk windows as part of a building renovation. The windows were 12 feet above the floor. Plaintiff testified he was told by his supervisor “to complete the task however he could.” Placed a bucket on top of a convector (heating device that warms a room by creating a current of hot air) to reach the windows. When dismounting from the bucket, plaintiff stepped into a hole in the convector cover.  

As a result, plaintiff suffers a fall from a height and there was 240(1) liability as the bucket plaintiff stood on was an inadequate safety device for the work he was performing. Plaintiff also established he had no access to ladders, scaffolds or other safety equipment.  Defendant asserted plaintiff was a recalcitrant worker because plaintiff knew a ladder was available and chose not to use it. However, it was held a statement of plaintiff’s supervisor that he believed ladders were located in the vicinity of his work area was insufficient to raise an issue of fact as to whether plaintiff was a recalcitrant worker.

The court held a supervisor’s “belief” of a ladder present was not good enough to defeat plaintiff’s motion for summary judgment.  While the court did not say it, such statement by the supervisor amounted to speculation. Speculation cannot defeat summary judgment. The supervisor had to assert where the ladder(s) were located in the vicinity of plaintiff’s work area and that he came to that conclusion by personal observation.  If he was told the ladder(s) was in the vicinity, it would likely be held as inadmissible hearsay.    

No Evidence Plaintiff Expected to Use Certain Equipment

First Dept.

First Dept. 2020. Not Recalcitrant Worker. Plaintiff made showing 240(1) violated by submitting his uncontradicted deposition testimony of falling off a metal A-frame ladder that was shaking and leaned unevenly toward one of its legs, lacking a rubber protective foot. Plaintiff complained to supervisor of the ladder shaking earlier in the day and supervisor responded by ordering plaintiff to continue using such ladder. Even if adequate ladder was available, defendants failed to show that plaintiff knew he was expected to use it or that he chose not to do so for no good reason. Garces v. Windsor Plaza, Inc., LLC, 189 AD3d 539;

First Dept. 2018. Not Recalcitrant Worker as Defendant Not Establish Plaintiff Was Specifically Instructed to Use Particular Safety Device Other Than Ladder And Plaintiff Refused.  White v. 32-01 Steinway, LLC, 165 AD3d 449;

First Dept. 2018. Plaintiff’s decision to use a makeshift ladder that his coworkers were also allegedly using was not sole proximate cause of accident where plaintiff was never instructed not to use it. Also, as no proper safety device was provided, that fact that plaintiff’s boots may have been untied or that he may have been descending the makeshift ladder backwards was not sole proximate cause of accident. Jarzabek v. Schafer Mews Hous. Dev. Fund, 160 AD3d 412;

First Dept. 2017. While plaintiff violated employer’s safety manual by standing on the top cap of 6-foot frame ladder to reach his work, there was also evidence that the fall caused by ladder’s side hinge breaking and the ladder collapsing, and not the method in which he used the ladder.  As such, plaintiff not sole proximate cause of accident. Manfredonia v. Gateway Sch. of NY, 150 AD3d 434;

First Dept.  2015. No Evidence Plaintiff Received any “Immediate And Active Direction” Not to Use The Ladder.  Recalcitrant Worker Defense Denied.  Phillips v. Powercrat Corp., 126 AD3d 590;

First Dept. 2014. Not Recalcitrant Worker. Plaintiff Not Expected to Use Another Ladder. Plaintiff established 240(1) liability by his testimony that while attempting to descend from the third to the second rung of an unsecured wooden A-frame ladder, the ladder, which had worn legs and no rubber tips, suddenly slipped and collapsed, causing a fall. Regardless of whether a lift or another ladder were available at the job site, there was no showing plaintiff was expected, or instructed, to use such devices and for no good reason chose not to do so. Kuras v. Cornell Univ., 118 AD3d 488;

First Dept. 2008. Not Recalcitrant Worker. Not Instructed to Use Certain Equipment. Plaintiff struck by unsecured pipe and then he either fell from the ladder he was standing on or the ladder itself failed. No evidence plaintiff chose not to use available safety device. Plaintiff’s explanation for failing to use a chain to secure the pipe prior to cutting through it for removal was that there was no place to attach the chain. President of plaintiff’s employer never stated plaintiff was instructed to use a chain to secure the pipe and that plaintiff had no good reason not to do so. Kosavick v. Tishman Constr. Corp. of NY, 50 AD3d 287;

No Instruction to Worker. Not Recalcitrant Worker. Liability Imposed.

First Dept. 2024. 240(1) Liability Imposed. Detachable Ladder. No Evidence Plaintiff Knew Expected to Use Ladder. Plaintiff fell 4 feet while attempting to descend from outrigger platform on a scaffold by climbing down the cross bracing under the platform. Plaintiff established defendants failed to provide ladder. Defendants contended there were ladders readily available on site & plaintiff was recalcitrant in failing to use such ladders. However, no evidence that plaintiff knew he was expected to use such ladders but for no good reason chose not to do so. No evidence detachable ladder which was used as means of different access to different floors of the scaffold was suitable alternative means of access for outrigger platform. No evidence plaintiff instructed to use, or knew he was expected to use detachable ladders. Ortiz v. City of NY, 224 AD3d 631;

First Dept. 2021. 240(1) Liability Imposed.No evidence plaintiff specifically instructed to use particular safety device other than ladder & plaintiff refused. Not recalcitrant worker. Morales v. 2400 Ryer Ave. Realty, LLC, 190 AD3d 647;

First Dept. 2018. 240(1) Liability Imposed. Because sidewalk congested with pedestrian traffic, plaintiff set up ladder parallel to building & straddled atop the ladder, one foot on each side. While working with a drill, plaintiff lost balance, ladder started to fall, plaintiff jumped off ladder. Manner in which plaintiff set up ladder not evidence plaintiff sole proximate cause of accident as there is no dispute ladder unsecured & no other safety devices provided. Plaintiff not recalcitrant worker as defendants not establish he was specifically instructed to use particular safety device other than ladder & he refused. White v. 31-01 Steinway, LLC, 165 AD3d 449;    

Defendant’s Affidavit Vague as to Available Safety Devices. Not Recalcitrant Worker.

First Dept. 2017.Plaintiff, an electrician, reached out for ladder permanently affixed to a wall. As he placed his right hand & foot on ladder, ladder moved away from him, causing fall. Plaintiff’s testimony ladder shifted established 240(1) violation. While vice-president of plaintiff’s employer stated in affidavit safety harnesses & other safety devices available to plaintiff, affidavit vague as to what other unspecified safety devices were available, where plaintiff should have attached harness, or whether available anchorage points. Garcia v. Church of St. Joseph of the Holy Family of City of NY, 146 AD3d 524; 

Using Method of Access to Work Area. Not Recalcitrant Worker.

First Dept. 2012. Plaintiff not Recalcitrant Worker. Choosing to use unsecured ladder over interior stairway as no evidence workers permitted to use such stairway or use of ladder was misuse of ladder. Eustaquio v. 860 Cortlandt Holdings, Inc., 95 AD3d 548;

Plaintiff Not Directed to Stop Working in Debris Filled Room

First Dept. 2016. Not Recalcitrant Worker. Plaintiff’s Use of 6 Foot Ladder, Causing Him to Stand on Top Step. Not proximate cause of accident as 8 Foot ladder could not be opened in the space.Plaintiff electrician fell from A-frame ladder as he attempted to descend ladder. Plaintiff’s use of 6 foot ladder requiring plaintiff to stand on top step not make plaintiff sole proximate cause of accident where 8 foot ladder could not be opened in the space because of presence of construction debris. While site safety manager told plaintiff he should not work in the room as it was unsafe because of debris accumulation, such manager denied directing plaintiff to stop work, as such manager not possess such authority. Saavedra v. 89 Park Ave. LLC, 143 AD3d 615;

Second Dept.

Second Dept. 2023. Not Recalcitrant Worker. Plaintiff fell from roof of single family house while engaged in construction work. Defendant did not establish plaintiff aware of location of safety devices  or was expected to use them. Santiago v. Hanley Group, Inc., 2023 NY Slip Op 02549;

Second Dept. 2015. Not Recalcitrant Worker. Plaintiff used a scaffold and climbed over a railing, rather than use a permanent ladder that was 30 feet from the scaffolding ladder to access his work area. No one instructed plaintiff that he was expected to use the permanent ladder rather than scaffolding. Doto v. Astoria Energy II, LLC, 129 AD3d 660; 

Second Dept. 2023. Not Recalcitrant Worker And No Evidence Plaintiff Sole Cause of Accident. No evidence plaintiff was instructed to use a different ladder. Plaintiff fell from unsecured ladder. No evidence chose to use an inadequate device when proper devices were available and no evidence plaintiff misused an otherwise adequate safety device. Lochan v. H&H Sons Home Improvement, Inc., 216 AD3d 630;

Third Dept.

Third Dept. 2023. Not Recalcitrant Worker. Safety Device Not at Worksite. Coworker’s testimony that existence of rope was somewhere in the warehouse insufficient to establish the rope was available, visible and in place at the worksite. Barnhardt v. Rosetti, LLC, 216 AD3d 1295;

Third Dept. 2004. Failing to Follow Co-Worker’s Advice Not to Use Ladder Because of Ice. Not Recalcitrant Worker. Coworker testified sidewalk was sheet of ice & warned plaintiff not to use ladder in such icy conditions. No scaffolding, lift platforms, ropes, harnesses or other safety devices available at site. Plaintiff used only safety device available, a ladder. Merely failing to follow coworker’s advice not result in plaintiff being recalcitrant worker. Morin v. Machnick Builders, Ltd., 4 AD3d 668;

Fourth Dept.

Not Instructed to Use a Ladder

Fourth Dept. 2010. Not Recalcitrant Worker. Although defendants contend plaintiff should have used ladder as safety device, defendant presented no evidence plaintiff instructed to use ladder or that plaintiff knew or should have known that he should have used ladder based on his training, prior practice & common sense. As such, defendant submitted no evidence plaintiff had adequate safety devices available, that plaintiff knew such devices available & was expected to use them, that he chose for no good reason not to do so, & had he not made that choice he would not have been injured. Lorenti v. Stickl Constr. Co., Inc., 78 AD3d 1598;

Fourth Dept. 2009. Not Recalcitrant Worker. Plaintiff fell while carrying bricks up ladder at construction site. Absence of safety device was proximate cause of accident. Defendant contended plaintiff should have used outrigger system to raise the bricks to the level where masons were working, rather than carry by hand climbing a ladder. No evidence outrigger system was installed on scaffold on accident date. Defendant failed to raise issue of fact that whether plaintiff, based on his training, prior practice and common sense knew or should have known not to carry bricks by hand up the ladder. Defendant failed to offer evidence permitting a jury to find plaintiff had adequate safety device available; he knew both that it was available and expected to use it. That he chose for no good reason not to do so; and had he not made that choice accident not have occurred. Smith v. Picone Constr. Corp., 63 AD3d 1716;  

Fourth Dept. 2006. Issue of Fact. Told Not to Use The Ladder. Plaintiff fell from a ladder while cleaning newly constructed house. The ladder slid out from underneath her. 30 minutes before the accident, plaintiff’s employer told plaintiff not to climb the ladder as it was positioned and employer repeatedly told plaintiff not to use the ladder without someone to steady the ladder. Employer and another member of employer’s crew were present and able to steady the ladder and the ladder was not defective. Issue of fact whether plaintiff was recalcitrant worker. Andrews v. Ryan Homes, Inc., 27 AD3d 1197;

Plaintiff Required to Use Alternative Means Fourth Dept. 2007. Not Recalcitrant Worker.240(1) Liability Imposed. Ladder Removed. Plaintiff Used Alternative Means. While working as steel erector on iron beam 12 above ground, ladder plaintiff used to ascend onto a beam not in place when he was ready to descend. Plaintiff then attempted to slide down a vertical support column but as he approached column his foot skipped causing a fall to ground. Plaintiff established 240(1) violated as plaintiff injured by fall from elevated work site & absence of safety device proximate cause of accident. Here, ladder made available to plaintiff to ascend from the beam was removed, leaving plaintiff no choice but to attempt alternate method of descending from beam. Zender v. Madison-Oneida County BOCES, 46 AD3d 1361; 

March 30. New York. Pollution. Insurance Coverage. Owned Property Exclusion. Subject Premises Not on Policy’s “Project Endorsement List.

This Policy does not provide coverage and the Company will not pay any Claims, Claim Expenses or Loss …

Based upon or arising from or in connection with any real property or facility which is, or was at any time, owned, operated or rented by a Named Insured or by any entity that:

1. Wholly or partly owns, operates, manages, or otherwise controls a Name Insured; or
2. Is wholly or partly owned, operated, managed or otherwise controlled by a Named Insured.

However, this Exclusion does not apply to the job site at which Covered Operations are being performed and which is indicated on the Project Endorsement attached to the Policy.  

Skansa Usa Bldg., Inc. v. Commerce & Indus. Ins., 2026 NY Slip OP. 31098(U), decided March 19, 2026, by the Hon. Arlene Bluth, Supreme Court, NY County.

All Craft, a contractor, was hired to perform construction work at UN headquarters in Manhattan. All Craft claims it was tasked with reworking interior wooden doors & wood panels & that it was directed to salvage these materials. Such doors & wood panels were transported to All Craft’s facility on Long Island. All Craft claims that while performing the refurbishing, it encountered asbestos & incurred damages from the asbestos, including the cost to remediate its facility & dispose of the materials.

Insurer contended the policy provided coverage for pollution incidents, such as liability to third parties like guests or employees of the UN. It would also cover a hazardous spill occurring during construction at the UN job site. Insurer contends such policy was not intended to cover incidents at off-site facilities owned by plaintiff or facilities owned by one of plaintiff’s contractors.

Insurer based its denial of coverage upon the policy’s owned property exclusion. Issue was whether Owned Property exclusion in the pollution policy applied for claim of  asbestos found while All Craft was working on the doors at its facility.   

Decision held there is no dispute that the potential liability against plaintiff arises out of All Craft’s work at its facility on Long Island, not at the UN site. “This means the exclusion clearly applies as the actions described in the All Craft action happened at a facility operated & managed by All Craft & the work was ordered by plaintiff.” All Craft was a subcontractor hired by plaintiff for the UN job. All Craft alleges its facility was damaged & contaminated by the presence of asbestos. Further, All Craft’s facility is not listed on the “Project Endorsement” attached to the policy.

March 29. New York. Grave Injury Defined Under Section 11 Workers’ Compensation Law. If Grave Injury Sustained, Allows For Third Party Action Against Employer For Common Law Indemnification & Contribution.

Motion of Plaintiff’s Employer to Dismiss Common Law Indemnification Claim of GC Denied. Employer’s Submission of Expert Opinion as to Issue of “Grave Injury” Was Not Submitted Until Its Reply Affirmation, Rendering It New Evidence Which Could Not be Considered by Motion Court.   

Bustamante v. St. George Outlet Dev. LLC, 2026 NY Slip Op 31082(U), decided March 10, 2026, Hon. Ingrid Joseph, Supreme Court, Kings County. Empire Outlet was GC for construction project & contracted with plaintiff’s employer, DiFama Concrete. Plaintiff injured when knocked to the ground while standing on a dumpster. DiFama moved to dismiss Empire’s cause of action for common law indemnification asserting plaintiff not sustain a “grave injury.” Empire noted plaintiff’s Bill of Particulars alleged traumatic brain injury and asserted DiFama failed to offer objective medical evidence that plaintiff did not sustain a “grave injury.” As such, Empire asserted triable issue of fact exists whether “grave injury” sustained.

DiFama asserted Empire’s own experts supported its argument that plaintiff not sustain a “grave injury.” DiFama submitted expert reports of Dr. David Erlanger, neuropsychologist, and Josiah Pearson, a vocational rehabilitation expert. Both evaluated plaintiff & concluded he was able to return to work. Courts hold no traumatic brain injury if a plaintiff can work. Motion Court held DiFama “merely argued the injuries listed in plaintiff’s Bill of Particulars did not meet the grave injury exception.”

Also, DiFama offered no competent medical evidence indicating that plaintiff’s injuries were not “grave.” Court held DiFama could not rely on the conclusion of the experts of Empire as such conclusions were offered for the first time in its reply affirmation. USAA Fed. Sav. Bank v. Calvin, 145 AD3d 704 (2^nd Dept. 2016).    

March 29. New York. No Breach of Contract. Sub-Contractor Established Contract Required Insurance Obtained.

Bustamante v. St. George Outlet Dev. LLC, 2026 NY Slip OP 31082(U), decided March 10, 2026, Hon. Ingrid Joseph, Supreme Court, Kings County. Empire Outlet was the project’s GC and contracted with plaintiff’s employer, DiFama Concrete. Plaintiff, a laborer, was instructed by a supervisor to “level up” a dumpster. While plaintiff was standing with one foot on the edge of the dumpster & other foot on top of debris in the dumpster, debris was dumped on him, causing a fall to the ground.

Difama Concrete moved to dismiss Empire’s claim for breach of contract for failing to procure insurance. The GCL policy issued by Hiscox named DiFama Concrete as an insured. Such policy also includes entities required by written contract to be included for coverage as additional insureds. An excess policy issued by Arch Insurance named DiFama Concrete as named insured and lists the Hiscox CGL policy as the “controlling underlying insurance” for general liability. Arch’s policy ‘s definition of insured includes any organization qualifying as an insured under controlling underlying insurance.”

In this case, there was a written contract between DiFama Concrete & Empire, requiring Empire to be named as an additional insured. As Empire is an additional insured under the Hiscox policy, it is also an additional insured under the Arch policy. As such, the Motion Court dismissed Empire’s breach of contract claim for failing to procure insurance against DiFama Concrete.     

First Dept.

First Dept. 2022. Vitucci v. Durst Pyramid LLC, 205 AD3d 441; 

First Dept. 2022. Court dismissed NSH & Turner’s claim for breach of contract based on failure to procure insurance. Correspondence from Scalamandre’s insurer stated its insurance policy contained blanket additional insured endorsement covering parties it had contractually agreed to name as AIs. Payne v. NSH Community Servs., Inc., 203 AD3d 546; 

First Dept. 2021. Cross entitled to dismissal of Longwood’s claim against it for breach of contract for failing to procure insurance. Cross’s blanket subcontract with C&W only required it to procure insurance for C&W. Unlike indemnity provision, there is no express provision for Cross to procure insurance for the owner. Goya v. Longwood Hous. Dev. Fund, 192 AD3d 581;

First Dept. 2013. Roadway not breach its duty, under either the purchase agreement or the standard terms, to procure insurance naming Con Edison as AI, as to plaintiff’s accident. The standard terms specify that Roadway was obliged to maintain a products/completed insurance policy for at least one year after completion of performance. While purchase order stated contract terms ran for 2-year period from December 2000 until December 2002, the work causing the accident took place on January 26, 2001. As such, roadway’s duty to maintain insurance with Con Edison as AI ended on January 26, 2002, 1 year after Roadway finished its work under the contract & 4 months before plaintiff’s accident. LaMorte v. City of NY, 107 AD3d 439;

Second Dept.

Second Dept. 2024. A party seeking summary judgment dismissing cause of action alleging breach of contractual obligation to procure insurance must establish it procured requisite insurance, causing burden to shift to opposing party to raise issue of fact. NYCHVAC procured CGL policy in a certain amount & named Fulton Landing as AI.  In support of its motion, NYCHVAC produced insurance policy compliant with terms of insurance procurement provision of subcontractor agreement & in opposition, Fulton failed to raise issue of fact. Titov v. V&M Chelsea Prop., LLC, 2024 NY Slip Op 04221;

Second Dept. 2023. Contract language merely requiring purchase of insurance will not be read as also requiring a contracting party be named as AI. As such, a party seeking damages for breach of an agreement to procure insurance naming it as AI must demonstrate that a contract provision be procured naming it as AI and the provision not complied with. Here, F&G established it procured the requisite insurance. Meadowbrook Pointe Dev. Corp. v. F&G Concrete & Brick, 214 AD3d 965;

Second Dept. 2018. Bay and J&R demonstrated they procured requisite insurance in accordance with their contracts. McDonnell v. Sandaro Realty, Inc., 165 AD3d 1090; 2014;

Second Dept. 2014. Party seeking summary judgment based on alleged failure to procure insurance naming party as AI must demonstrate contract provision required such insurance be procured & that provision not complied with. Flushing defendants failed to present evidence showing that either S&J or M&V failed to comply with provision in their respective subcontracts requiring them to obtain insurance naming Flushing defendants as AIs. Ginter v. Flushing Terrace, LLC, 121 AD3d 840; Second Dept. 2012. LTC established its failure to procure insurance naming third party plaintiffs as AIs was not breach of contract. LTC submitted written agreement between it & third party plaintiffs, which not require it to procure insurance naming third party plaintiffs as AIs. Zaidi v. NY Bldg. Contrs., Ltd., 99 AD3d 705;

March 28. New York. Ladder. Electrical Explosion. Plaintiff’s §240(1) Motion Denied as No Evidence Ladder Defective. Plaintiff Offered No Expert Opinion as to Statutory Violation.

Arias v. Brooks Holding Corp., 2026 NY slip Op 01841, decided March 26, 2026, First Dept. Plaintiff employed as construction helper & along with coworkers was renovating apartment on 91^st Street in Manhattan. An electrician told plaintiff & coworker to run electrical line from the kitchen to building’s utility room located 2 rooms away. Plaintiff went to utility room & set up 8-foot aluminum A-frame ladder. Plaintiff placed the ladder facing an electrical panel.

Such ladder “was in good condition, level & standing on all 4 feet.” Plaintiff noticed no issues with ladder’s feet or steps. Plaintiff climbed ladder to either second or third rung from the top.  Electrical panel was 2-3 feet above him. When the electrical wire came through the ceiling, such wire struck the inside of the electrical panel, causing explosion & loss of power to entire building.

Such explosion occurred 2 feet from plaintiff’s face. In response to the explosion, plaintiff grabbed the ladder with both hands. Then, both ladder & plaintiff fell.

Appellate Court noted, “The nature of an accident may itself be probative as to whether protection was inadequate & whether the lack of proper protection proximately caused a worker’s injuries.” Appellate Court also noted, “Where the circumstances of an accident are not themselves probative of a statutory violation, plaintiff may demonstrate [its] entitlement to summary judgment through other evidence that the protection provided was inadequate or that safeguards were required but absent.”

Plaintiff testified the ladder was in good condition, level, and standing on all 4 feet, and also that it did not move as he ascended it.  “Despite plaintiff’s insistence to the contrary, this appeal implicates neither a collapse or malfunction for no apparent reason …”

As in Nazario v. 222 Broadway, LLC, 135 AD3d 506 (1^st Dept. 2016), plaintiff failed to submit any evidence, whether by his own testimony or through expert opinion, addressing gravity-related safety devices or precautions that might have prevented his fall. There was no evidence the ladder was improper or inadequate for potential harm directly flowing from the work’s gravity-related risks. “Nor was the manner of the accident itself sufficient to carry plaintiff’s prima facie burden.”

It was held questions of fact as to whether ladder failed to provide proper protection; whether plaintiff should have been provided with additional safety devices & whether ladder’s purported inadequacy or absence of additional safety devices was proximate cause of accident.           

Court of Appeals

Court of Appeals. 2022. Issue of Fact. Whether ladder failed to provide proper protection.  Plaintiff standing on A-frame ladder cutting & rerouting pipes in ceiling located near electrical wiring. Engaged in such work, plaintiff received electric shock, causing fall to ground. Plaintiff remembered nothing about his fall, including whether he lost consciousness, whether ladder fell to ground, or whether he was thrown from ladder after being electrocuted. Issue of fact whether ladder failed to provide proper protection, whether additional safety devices should have been provided & whether ladder’s purported inadequacy or absence of additional safety devices proximate cause of accident. Cutaia v. Board of Mgrs. of the 160/170 Varick St. Condominium, 38 NY3d 1037; 

Court of Appeals. 2016. Issue of Fact. While performing electrical work as part of renovation, standing on 4^th rung of 6 foot A-frame ladder, plaintiff received electric shock from exposed wire, causing fall to the floor. Issues of fact whether ladder failed to provide proper protection & whether plaintiff should have been provided with additional safety devices. Nazario v. 222 Broadway, LLC, 28 NY3d 1054;

March 28. New York. Object Falling at Work Site on Same Level as Plaintiff. §240(1) Liability Imposed. Incident Report Generated 6 Weeks After Accident Doomed Defendants.

Carranza v. RXR Church-Div. Tower A. Holdings, LLC, 2026 NY Slip Op 01844, decided March 26, 2026, First Dept. Plaintiff testified she was transporting sheetrock on A-frame cart pursuant to instructions from site foreman. Such cart “got caught on debris , flipping over,” causing the sheetrock to fall on her. In the cart were 8 pieces of sheetrock, 1 inch thick, weighing 10 pounds each. 

Appellate Court held plaintiff’s testimony established prima facie case for summary judgment on §240(1) cause of action. Defendants submitted Incident Report stating plaintiff was pushing a mini-dumpster, not an A-frame cart. From this information, defendants asserted plaintiff was cleaning up debris rather than delivering sheetrock.

Appellate Court dismissed such information because such report was prepared more than 6 weeks after the accident & because no evidence the people in the report identified as witnesses actually witnessed plaintiff’s accident. Plaintiff testified she was alone when the accident occurred & never spoke with any witnesses identified in the Incident Report. Decision held Incident Report hearsay.

Affidavit of plaintiff’s coworker stated she did not witness accident. Coworker stated she was “aware” plaintiff had been pushing a mini-dumpster. Because the co-worker did not state in her affidavit that “she personally saw plaintiff pushing a mini-dumpster,” decision held not raise issue of fact. The report of defendants’ expert, which opined plaintiff’s accident was a “physical impossibility,” failed to raise an issue of fact as expert not inspect the A-frame cart or mini-dumpster involved in the accident, nor the debris causing the cart to flip over.   

Comment. Defendants’ Incident Report generated 6 weeks after the accident, with no statements from witnesses to the accident. 6 weeks after. Defendants lost all credibility with the Court. Good argument as to mini-dumpster and debris, but no witnesses.  

March 27. New York. Object Falling at Work Site is on Same Level as Plaintiff, Rather Than Falling From Elevated Height. §240(1) Liability Imposed.

Castro v. City of NY, 2026 NY Slip OP 01845, decided March 26, 2026, First Dept. A scaffold plaintiff was using rolled & one of the legs of the scaffold went into a hole or rebar area, causing the scaffold to tip over onto plaintiff. Citing Court of Appeals 2011 decision, Wilinski v. 334 E. 92^nd Hous. Dev. Fund Corp., 18 NY3d1 & 2021 First Dept. decision, Hyatt v. Queens W. Dev. Corp., 194 AD3d 548, it was held, “That plaintiff was standing on the same level as the scaffold that fell on her does not prelude liability under §240(1).”  It was also held that in the absence of evidence plaintiff was instructed to lock the scaffold’s wheels each time she loaded buckets of water onto the scaffold, plaintiff not a recalcitrant worker, citing Noor v. City of NY, 130 AD3d 536 (1^st Dept. 2015).   

Comment. Where an object falls over from an upright position, striking plaintiff, §240(1) liability may be imposed contingent upon force of gravity generated by the object at the time it strikes plaintiff. Defendant asserts such a fall is de minimis, not a fall from elevated height. While the distance from where the object started to fall and when it struck a worker may be slight, the weight of the object and amount of force the object generated in that slight distance is determinative of §240(1) applicability.

240(1) Liability Imposed For Object Merely Falling Over, Not Falling From Height Above.

Metal pipes, 4 inches in diameter, standing 10 feet, traveled 4 feet before striking plaintiff.

4 foot tall, 300-500 pound fire pump.

12 foot, 1500 pound brace frame.

Skid.

1000 pound granite slab object fell off Hi-Lo striking plaintiff at same level.

Court of Appeals

Falling Pipes

Court of Appeals. 2011. 240(1) Liability. Pipes Falling Over Onto Plaintiff. Plaintiff not precluded from recovery under 240(1) simply because plaintiff & pipes striking him were on the same level. The pipes, which were metal & 4 inches in diameter, stood at 10 feet & toppled over to fall at least 4 feet before striking plaintiff, who is five feet, 8 inches tall. Such height differential not de minimis given amount of force pipes able to generate over their descent. As such plaintiff suffered harm flowing directly from application of force of gravity to the pipes. Wilinski v. 334 E. 92^nd Housing Dev. Fund Corp., 18 NY3d 1; 

240(1) Liability Imposed When Moving Object

First Dept. 2025, Hernandez v. Port Auth. of NY & NJ, 241 AD3d 1069, plaintiff was employed by PB Vent & injured attempting to move a cart out of the way where he needed to work. The cart, after moving a short distance, fell over, causing Masonite boards in the cart to fall out of the cart & strike plaintiff.  The cart’s wheels were cracked & had an embedded nail.  

While the decision noted the Masonite boards in the cart fell a “short” distance, such boards weighed 1200 pounds. The force of gravity generated by 1200 pounds, even over a short distance, removes a de minimis fall defense. That the Masonite boards fell only a few feet is not the issue given the weight of the boards.

The greater the weight of the falling object, the less distance it has to fall in order for §240(1) liability to be imposed.  Boards weighing 1200 pounds falling only a few feet can inflict the same type of injury from an object of a lesser weight falling at a greater elevation. That the cart was at the same level as the plaintiff here, is not a factor, as the boards became falling objects when the cart tipped over. If the boards had remained in the cart & the cart struck plaintiff’s foot, §240(1) not apply as there was no falling object.

Labor Law §240(1) Imposed.  Metal Post Falling Over. Not De Minimis Distance.  Post Weighed 150 Pounds.  Inadmissible  Hearsay Evidence.

Argueta v. 39 W 23^rd St., LLC, 236 AD3d 564 (1^st Dept. 2025), where a metal post, 9-11 feet long, weighting 150 pounds, was leaning against a truck.  The post fell from its position against the truck, striking plaintiff, who was kneeling next to the post adjusting other posts.  While defendant offered an accident report of the post weighing between 30 and 50 pounds, it was held that with such weight, the elevation difference of the pole falling and striking plaintiff was not de minimis.  Plaintiff not required to submit expert testimony as to what safety device was required.    Court also held unsworn statements in accident report not admissible evidence.      

Fence at Construction Site Falling Over From Wind’s Gravitational Force. Not De Minimis. Asbestos Work Part of Larger Renovation Project. Labor Law §240(1) Imposed.

Brito v. City of NY, 238 AD3d 508 (1^st Dept. 2025), imposed 240(1) liability where a worker performing asbestos removal work on a roof of a residential building in New York City Housing Authority’s Mariners Complex on Staten Island. A wind gust knocked over 3 unsecured panels of galvanized steel fencing, striking plaintiff. Each panel measured 8 feet in height.  Together, the panels had a combined weight of 150-225 pounds. Such fence panels were not tied down to a bulkhead or parapet wall or secured by heavy sandbags and/or metal plates, which was the protocol for the general contractor to follow in safeguarding the fencing. 

Because of a reasonable possibility the panels might fall into the workspace, the panels required securing. It was established the gravitational force generated by the wind caused the panels to fall. Work of asbestos removal was within protection of §240(1) as such work was part of a larger project to renovate multiple building rooftops.

Defendants’ argument the galvanized steel fence had no connection to plaintiff’s work, as the fence’s purpose was to keep building residents from entering the rooftop work zone during nonworking hours, was rejected by the court.    

Law 240(1) Liability Imposed When Stack of Pieces of Plexiglass on The Same Level as a Worker, Tipped Over, Striking Worker. Considered a Falling Object.

First Department, in Lucas v. City of NY, 236 ADS3d 523 (2025), a journeyman electrician, installing wall thermostats for a renovation project at Columbia University’s Mudd Hall, had his feet struck when a stack of 8-10 pieces of plexiglass panels tipped over. Each plexiglass panel was 9 feet tall, 46 inches wide, ½ inch thick, weighing 200-300 pounds.

240(1) liability imposed as plaintiff’s expert witness established that even though such plexiglass panels were positioned on the same level as the worker and fell only a short distance, the weight of the plexiglass panels was capable of generating extraordinary force that securing devices of the kind enumerated in §240(1) were needed to stabilize the stack of panels. Decision cited Wilinski v. 334 E.92^nd Hous. Dev. Fund Corp., 18 NY3d1.

Window in Stacked Row Falling Over Onto Plaintiff. Defendant’s Motion For 240(1) Denied

 Cruz v. PMG Constr. Group LLC, 236 AD3d 402 (1^st Dept. 2025), metal and glass worker was struck in the back of the legs by a 225 to 250 pound, 4 inch by 10 inch window.  Such window had been leaning against a stack of 4 other windows, al similar in size which were propped up against a wall. Plaintiff had just removed a suction cup carrier from the window and had only taken 3-4 steps towards a nearby A-frame dolly when the window fell, striking him. Plaintiff alleged Labor Law 240(1) was violated because the window, even though at the same level as plaintiff, constituted a “falling object” under 240(1).

Plaintiff’s expert opined that “based on empirical data, industry standard and witness testimony, that the weight, length and height of the glass window, when falling over, was a “harmful force, even over the course of a relatively short decent, that warranted securing.”

In support of its motion, defendants’ expert engineer opined it was a “de minimis elevation risk because the window could not generate sufficient force as it toppled over and fell a short distance to the floor.”  It weas further asserted that as the window fell such a short distance, it did not require securing.

The First Dept. affirmed the trial court decision because “the parties submitted conflicting expert opinions raising triable issues of fact.”  But there is no indication from the decision whether the experts submitted the force that was generated by the 225-250 pound window falling over.  Where the window struck plaintiff’s legs, where plaintiff had taken 3-4 steps away from the window, the window had already fallen multiple feet upon striking plaintiff.  

Fall of Iron Scaffold Pole. Labor Law §240(1) Imposed.

First Dept. 2023. A scaffold pole, 1-14 feet in height and 9 inches in diameter, weighing 80-100 pounds, fell on plaintiff’s head and shoulder while working at a construction site. One of plaintiff’s coworkers was attempting to hold the pole upright but was unable to do so as the pole was not secured. Accident caused by defendant’s failure to secure the scaffolding pole to keep it from falling & flowed directly from the application of the force of gravity to the pole. Also, the pole fell from a distance that was not de minimis, as the pole was made of iron & was able to generate a large amount of force during its descent.  Ruiz v. Phipps Houses, 216 AD3d 522;

300-500 Pound Fire Pump Fell Over. 240(1) Liability Imposed.

First Dept. 2022.  Plaintiff struck by 3-4 foot tall, 300-500 pound fire pump. Fire pump  standing upright on the floor, fell on plaintiff’s leg. Where a load positioned on the same level as worker, falls a short distance, 240(1) applies if the load, due to its weight, is capable of generating significant force. Plaintiff was running electrical conduits along wall & ceiling of fire pump room. Grigoryan v. 108 Chambers St. Owner, LLC, 204 AD3d 534;

12-Foot, 1500 Pound, Brace Frame. Fell Over

First Dept. 2019. Section 240(1) Liability Imposed. 12-Foot, 1500 pound Brace Frame falling over onto ground, striking plaintiff.  Section of formwork lifted from excavation pit & moved to ground level & was kept in upright position brace frames. Connector pins attaching brace frames to formwork panel were to be removed so brace frames could fall away & formwork panel could be laid flat on the ground. Brace frames, 12-feet high, weighed 1500 pounds. When plaintiff removed connector, brace frame fell on him. Although plaintiff & brace frame were at same level at time of accident, such work posed substantial gravity-related risk as falling of brace frame away from formwork panel would have generated significant amount of force. Engineer of formwork manufacturer testified if a formwork structure was standing upright, brace frames were to be secured by a crane. Encarnacion v. 3361 Third Ave. Hous. Dev. Fund Corp., 176 AD3d 627;

Skid Falling Over

First Dept. 2017. Weight of Falling Skid Determine 240(1) Liability. Plaintiff injured while he & coworker attempted to move wooden skid from vertical position onto A-frame dolly by tilting it at 45-degre angle on one corner & toppling it onto the dolly. When coworker lost his grip, skid fell on plaintiff. While plaintiff & skid on the same level, 240(1) may apply based upon weight of the skid. Natoli v. City of NY, 148 AD3d 489;

1000 Pound Granite Slab Object Fell Off Hi-Lo Striking Plaintiff at Same Level

First Dept. 2008. 240(1) Liability Imposed. Falling Object. Plaintiff placing 1000 pound granite slabs against side of building at ground level. Slabs then moved to installation location by Hi-Lo. Each slab was lifted 3 feet from ground when secured to Hi-Lo. Slabs then suspended from Hi-Lo during transport. Accident occurred as one of the slabs fell from the Hi-Lo, striking plaintiff. Extent of elevation differential is not determinative of whether accident falls within 240(1). It is no consequence ultimate destination of slab was at same level as plaintiff was standing. Clamp failed to prevent slab from falling.  Brown v. VJB Constr. Corp., 50 AD3d 373;

Injury Sustained Moving Object Within Interior of Truck

First Dept. 2022. Section 240(1) Imposed. Moving an object on same level as plaintiff. Plaintiff injured while moving 400 pound elevator platform from front of flatbed truck to tailgate. Section 240(1) imposed because of amount of force able to generate over short distance. Schoendorf v. 589 Fifth TIC I LLC, 206 AD3d 416;Second Dept.

Falling Work Equipment

Scaffold on Same Level as Plaintiff

Second Dept. 2014. 240(1) Liability Imposed. Plaintiff & his foreman transported baker scaffolds. 4 baker scaffolds were secured on assembled scaffold for transport. Total weight of 4 stacked disassembled scaffolds was 450-550 pounds. Platform of assembled transport was 4 feet high. During such work, wheel of scaffold came off. As plaintiff bent down to pick up wheelless end of scaffold, foreman pushed scaffold towards plaintiff & scaffold fell forward into plaintiff, pinning him against a wall. Although base of the scaffold was at the same level as plaintiff & scaffold only fell a short distance, given the combined weight of the device & its load, & force it was able to generate over its descent, difference not de minimis. As such, accident flowed directly from application of force of gravity. McCallister v. 200 Park, LLP, 92 AD3d 927; 

Second Dept.

Not de Minimis Height Differential

Falling 60 Pound Condulet

Second Dept. 2007. Plaintiff engaged in renovation of elevated subway station. Such renovation included installing conduit piping into underside of subway platform. While standing on hydraulic scissor lift 20 feet above the ground, plaintiff & coworker attempted to secure 60 pound “mogul condulet” (a fitting resembling a pipe or box with a removable cover for access to electric conduits). As lift could not be fully extended, plaintiff & coworker were holding the pipes & mogul condolet overhead while trying to secure it. One of mogul condulets fell off a pipe, causing plaintiff to try & catch it in midair. In doing so, plaintiff injured his shoulder. Defendant’s argument that height differential was de minimis unavailing as plaintiff working with heavy material above his head. Capolino v. Judlau Contr., Inc., 46 AD3d 733; 

Fourth Dept.

Falling Drywalls Panels on Same Level as Plaintiff Fourth Dept. 2024. 240(1) Not Dismissed. Plaintiff & supervisor moving stack of drywall panels leaning against a wall & partially obstructing doorway of room plaintiff needed to access to perform HVAC work. Panels fell, striking plaintiff. Although the drywall that fell on plaintiff was located on floor & was not being hoisted or secured, issues of fact existed whether 240(1) applied. Jesmain v. Time Cap. Dev. Corp., 225 AD3d 1189;

March 27. Recalcitrant Worker Defense. Appellate Court’s Inconsistent Decision.

DaSilva v. Super P57, LLC, 2026 NY Slip Op 01847, decided March 26, 2026, First Dept. Plaintiff was standing on a plank 4.5 feet above a metal awning onto which he fell when the unsecured plank suddenly shifted & tipped.  

Court rejected defendants’ argument that plaintiff was sole proximate cause of accident because plaintiff was reckless in moving about the plank; not tie down the plank with available clamps and/or ropes located in a shanty & not utilize scissor lift on the worksite.  Court held that “even assuming plaintiff knew the clamps/tie-downs were in the shanty, no evidence plaintiff deliberately disobeyed a direct instruction to use them, which is conduct to be shown to establish recalcitrant worker defense.”

But then the decision holds, “Defendants contention that plaintiff disobeyed a directive of the site safety manager to use the scissor lift to perform his elevated façade scraping work is unavailing as there is no evidence, including from defendants’ expert, to show the scissor lift would have allowed the workers to safely perform their work.”

Here, plaintiff not a recalcitrant worker when deliberately disobeying a directive because of a lack of evidence the scissor lift allowed plaintiff to work safely. Yet, decision offers nothing indicating the scissor lift constituted unsafe means of performing work. In reaching such decision, appellate court required to provide why the scissor lift was unsafe for the work to be performed. What was it about the scissor lift preventing plaintiff from working safely? Was the scissor lift merely deemed unsafe when plaintiff was directed to use it, thereby defeating recalcitrant worker defense?

Comment. A defense to a 240(1) cause of action is where worker suffering an accident is held to be a recalcitrant worker & such recalcitrance is sole proximate cause of worker’s accident. As the sole proximate cause of the accident, all causes of action are dismissed, not just the 240(1).

March 27. New York. Labor Law §240(1). Falls From a Ladder. Plaintiff’s Actions or Omissions Sole Proximate Cause of Accident or Issue of Fact Raised.

Court of Appeals

Court of Appeals. 2022. Plaintiff fell from a ladder in a movie theater while updating a fire alarm system. Plaintiff did not know why the ladder wobbled or shifted and acknowledged he might not have checked positioning of the ladder or the locking mechanism, despite having been aware of the need to do so. Plaintiff failed to offer a prima facie case. There is a plausible view of the evidence, enough to raise a fact question that there was no statutory violation & that plaintiff’s own acts or omissions were the sole cause of the accident. Bonczar v. American Multi-Cinema, Inc., 158 AD3d 1114, affirmed by the Court of Appeals at 38 NY3d 1023;  

Court of Appeals. 2006. Plaintiff Chose to Work With 6-Foot Ladder That Plaintiff Knew Was Too Short For Task. Plaintiff not suggest 6-foot ladder was defective, only that it was not tall enough for assigned task.  Plaintiff knew he needed 8-foot ladder to perform such task.  Plaintiff acknowledged there were 8-foot ladders on the job site and that he knew where they were stored.  He routinely helped himself to whatever tools he needed without asking the foreman.  While all of the 8-foot ladders may have been in use, plaintiff conceded his foreman had not directed him to finish the piping work before undertaking other tasks, and that there was other work he could have performed that day.  Plaintiff’s actions of using a ladder he knew was too short and then standing on the 6-foot ladder’s top cap, were sole proximate cause of his injuries. Robinson v. East Medical Center, 6 NY3d 550;

First Dept.

First Dept. 2017. Issue of Fact. Plaintiff’s Conflicting Account of Accident. Plaintiff’s deposition testimony was that he fell because he missed a step on the ladder as he descended from it and not attribute the fall to any inadequacy of the 12-foot A-frame ladder he was using. In contrast, his affidavit stated accident occurred when the ladder wobbled & his foot slipped on debris placed on ladder rung lacking any non-slip treads. Conflict inherent in plaintiff’s own account of accident raised issue of fact. DiCembrino v. Verizon NY Inc., 149 AD3d 541;   

Second Dept.

Second Dept. 2018. Plaintiff’s fall from ladder result of condition plaintiff hired to repair. Plaintiff’s summary judgment motion denied. Plaintiff climbed “ships Ladders” leading to the roof of school building in order to replace a missing bolt on the same ladder where the top rung met the side of the ladder.  Nearing the top of the ladder, plaintiff grabbed hold of the top rung, which came loose, causing a fall.  Plaintiff’s testimony was that he fell when the top rung of the ladder, which he knew was missing a bolt and which he had been sent to roof to replace, detached as he attempted to pull himself up by placing his hand on top rung of ladder.  Summary judgment denied to plaintiff. Jones v. City of NY, 166 AD3d 739;

Second Dept. 2007. Accident solely caused by plaintiff choosing to use an improperly placed, unopened, and unsecured ladder rather than the ladder he had brought and used earlier in that day. Gittleson v. Cool Wind Ventilation Corp., 46 AD3d 855;

Third Dept.

Third Dept. 2011. 240(1) Dismissed. While standing on the top cap of 6 foot ladder installing sheetrock on overhead soffit, plaintiff fell off the ladder. Deposition testimony from plaintiff’s supervisor and coworker established that numerous safety devices were available such as 8 foot ladders, baker’s scaffolds, stilts and mechanical lifts. Plaintiff testified there were other safety devices in other locations of the building better suited for the type of work he would perform and that he had routinely used such devices on this project. He testified a baker’s scaffold was available in immediate vicinity where he was working. Plaintiff conceded the stepladder he was not tall enough for the task he was performing and that it contained a warning not to step on the top cap of the ladder. Defendants made a prima facie showing 240(1) not violated. Plaintiff testified that while he attempted to find a better safety device. None were available. However, he confined his search to second floor of the building. Plaintiff failed to raise issue of fact. Maloney v. JM Pfeil & Co., Inc., 84 AD3d 1632;    

Third Dept. 2008. 240(1) Dismissed. Nothing Wrong With Ladder. Plaintiff standing on fourth rung of stepladder changing light fixtures over head when his feet gave way, causing a fall. Plaintiff noticed cheese like debris on the bottom of his work boots and came to conclusion his boots slipped off the stepladder. He was of the opinion his work boots came into contact with cheese like substance when he had earlier walked through a deli area. Plaintiff conceded  the ladder did not fail and there was no evidence it collapsed. No eyewitnesses and no expert testimony. Plaintiff’s own testimony established accident unrelated to adequacy or placement of safety device. Rather, it was attributable solely to slippery boots. Weinberg v. Alpine Improvements, LLC, 48 AD3d 915;  

Fourth Dept.

Fourth Dept. 2024. 240(1) Dismissed. Missed a Step. Fall from a ladder while performing chimney pointing work on residential rental building. Evidence suggested plaintiff fell from a ladder because he missed a step while descending, not because the ladder shifted or otherwise failed. Krause v. Industry Matrix, LLC, 2024 NY Slip Op 02653;

Fourth Dept. 2018. Plaintiff fell from a ladder in a movie theater while updating a fire alarm system. Plaintiff did not know why the ladder wobbled or shifted and acknowledged he might not have checked positioning of the ladder or the locking mechanism, despite having been aware of the need to do so. Plaintiff failed to offer a prima facie case. There is a plausible view of the evidence, enough to raise a fact question, that there was no statutory violation & that plaintiff’s own acts or omissions were the sole cause of the accident. Bonczar v. American Multi-Cinema, Inc., 158 AD3d 1114, affirmed by the Court of Appeals at 38 NY3d 1023;    Fourth Dept. 2007.

240(1) Dismissed. Plaintiff’s Action of Not Using Available Ladder Proximate Cause. Plaintiff fell 9 feet from a plank on I-beam above unfinished basement of a garage under construction. At time of accident, plaintiff was in garage collecting an extension cord that was caught on unidentified object in basement below him and that instead of using an available ladder in his effort to collect extension cord, he stood on slippery plank on top of an I-beam. Because a ladder was readily available, plaintiff’s “normal and logical response” should have been to use the ladder. Failure to use available ladder was proximate cause of accident. Arnold v. Barry S. Barone Constr. Corp., 46 AD3d 1390; 

March 26. New York. Labor Law §240(1) Violated as Plaintiff Struck by Section of I-Beam Plaintiff Cut From a Wall. Lack of a “Chain Fall.”

Clarke v. UWS Prop. Owner, LLC, 2026 NY Slip OP (U), decided March 17, 2026, Hon. Lynn Kotler, Supreme Court, NY County. Plaintiff was working in the basement of a building “cutting out rakers and walers,” defined as temporary structural support elements previously installed to support the basement excavation, which were no longer needed after concrete foundation was poured. A 4-foot section of I-beam plaintiff had cut free fell from height of 6 feet, struck a piece of equipment and then struck plaintiff.

Plaintiff testified his employer failed to provide him a “chain fall,” described in the decision as a type of rigging/hoist, to hold the section of Ibeam, preventing it from falling once it was cut free. Plaintiff requested a chain fall before the accident from his employer. Plaintiff testified that he was instructed at prior OSHA training that a chain fall was necessary when cutting steel at elevation of 6 feet or more off the ground. Plaintiff also testified he used a chain fall on previous occasions when performing similar work. Motion Court held such testimony sufficient to establish prima facie case for §240(1) violation. Defendant’s claim of plaintiff being the sole proximate cause of the accident was rejected by the motion court as the accident was caused “at least in part lack of safety devices to check the beam’s descent.”     

Common Law Liability. Espinal Exception. Where contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm. No “Launching” Here.

Jiminez v. Kela Tennis, Inc., 2026 NY Slip Op 01775, decided March 25, 2026, Second Dept.

Plaintiff injured walking across uninflated fabric cover for air-supported structure, known as a dome or bubble, which was to cover multiple tennis courts owned by the City of Mr. Vernon & leased by Kela Tennis. Such bubble was manufactured by defendant Arizon, who entered into a contract with defendant Dome Assembly to install the bubble. Arizon entered into another contract with a non-party to supervise installation of the bubble. Plaintiff alleged Arizon was negligent.

Decision noted, “Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party.” Espinal v. Melville Snow Contrs., 98 NY2d 136. Generally, contractual obligation will not give rise to tort liability in favor of a third party. However, in Espinal, the Court of Appeals recognized an exception to this rule where the contracting party launched an instrument of harm.

A launch of a force or instrument of harm is interpreted as requiring the contractor create or exacerbate a dangerous condition. Launch is an action verb, requiring by definition evidence the contractor affirmatively left the premises in a more dangerous condition that it was found.

Arizon established it was not installing or supervising installation of the bubble & that such work was performed by its independent contractor. As such, Arizon did not launch an instrument of harm.   

Other Decisions Addressing Launching Instrument of Harm

Vehicle Launched Instrument of Harm

First Dept. 2024. Issue of Fact. Plaintiff, security guard at construction site, injured involving accident at security booth. Lucha, who was driving defendants’ tractor trailer, struck a dumpster while driving away from the worksite. Dumpster became wedged beneath trailer & hit a portable lavatory, which collided with plaintiff’s security booth, which fell over with plaintiff inside. Plaintiff established defendants’ delivery truck launched the force that ultimately hit the security booth, causing plaintiff to be injured. However, the driver, Lucha testified he checked his mirrors & found there to be clear path moving the tractor trailer forward. Evidence showed dumpster not become wedged underneath the trailer until after Luch’s truck moved straight forward about 5 feet, raising issue of fact as to how the dumpster came to rest under the trailer. Woods v. Haris-Camden Terminal Equip., Inc., 2024 NY Slip Op 00177;

Obstructed Line of Sight

First Dept. 2024. Issue of Fact. Whether MFM, as GC, launched a force of instrument of harm by use of opaque green fabric stretched across the length & height of 6-foot high, chain link fence enclosing construction area. Such fabric obstructed line of sight of pedestrians & motorists who were in vicinity of crosswalk at 29^th St. & 9^th Avenue in Manhattan. Plaintiff struck by a vehicle. Hyland v. MFM Contr. Corp., 2024 NY Slip Op 01252; 

Hole in Pump Room

First Dept. 2018. Premises Owner & Contractor’s Motions to Dismiss Denied. Operating engineer, while working in pump room of building, stepped into opening or hole in a metal plate. Plaintiff claimed that a contractor, Harbour Mechanical, removed an oil tank which launched an instrument of harm, as it left a large opening in a metal plate exposed. Farrugia v. 1440 Broadway Assoc., 157 AD3d 565;

Installation of Bathroom Sink

First Dept. 2021. JES Plumbing filed to establish it did not launch a force or instrument of harm in its installation of a bathroom sink in guestroom at a hotel, or, that plaintiff’s accident, sustained when he leaned against the sink & it fell off the wall, not arise out of the performance of its work. Expert affidavit, in opposition to JES Plumbing’s motion, where engineer opined that if a sink’s wall mount bearing less than the specified 250 pound load cracks or fails to, it was improperly installed or defective. Plaintiff only weighed 187 pounds. Nestenborg v. Standard Intl. Mgt LLC, 191 AD3d 579;   

Falling Display at Trade Show

First Dept. 2020. Issue of Fact.  Plaintiff injured when a display fell on him while he was working as a greeter at a trade show at Javits Center. The display fell as Javits Center electricians were mounting a large television monitor on it. Reed not entitled to dismissal of the Complaint as issues of fact existed whether Freeman, who delivered the display & left, launched a force of harm in the design & fabrication of the display tower, which was missing stabilizing feet depicted in Reed’s work order. Alonso v. Reed Elsevier, 187 AD3d 427;

Unsecured Plywood Left Unattended

First Dept. 2020. Issue of Fact. Any failure to lock mechanical room where plaintiff’s accident occurred was not a dangerous condition created by Iconic or proximate cause of accident. Dangerous condition causing the accident was unsecured plywood left unattended without warnings. Contrary to Iconic’s contention of owing no duty to plaintiff because it did not launch a force of harm, issues of fact exist as to its role in creating the dangerous condition, including whether the plywood was unfastened at Iconic’s behest. Mazo v. DCBE Contr., Inc., 185 AD3d 530;

Trench

First Dept. 2016. Action Not Dismissed. Plaintiff injured when a re-paved trench in street collapsed under her. At the time, construction of Second Avenue subway taking place in the area. MTA failed to establish it owed no duty to plaintiff because neither it nor its contractors launched a force or instrument of harm in performing their contractual duties. Evidence showed total pf 10 projects on subject project & MTA made no showing that no work under any of 8 contracts performed at accident location. Evidence other entities performing excavation work within accident area & MTA did not show such work was not related to subway construction project. Sears v. S3 Tunnel Constr. AJV, 140 AD3d 474;

Repairing Stairway

First Dept. 2020. Issue of Fact. While Webster claimed that as a contractor, it owed no duty of care to plaintiff, issue of fact whether its welders exercised reasonable care while repairing the stairway and caused the step to become loose & unstable, thereby launching a force or instrument of harm, causing the accident. Moran v. 2085 LLC, 185 AD3d 424;  

Worker Riding in Elevator With Unsecured Building Materials

First Dept. 2019. Issue of Fact. Plaintiff Riding in Elevator With Unsecured Construction Materials. NTT & Pritchard failed to establish that they not launch a force or instrument of harm in failing to exercise reasonable care in performing their duties or that they not entirely displace 11 West 42 & Tishman’s duty to maintain premises safely. Plaintiff was permitted by Pritchard employees to ride in elevator when elevator was filled with unsecured construction materials. Another Pritchard employee testified persons not permitted in elevator when it was carrying construction materials. Contract gave NTT full responsibility for operation of the elevators. Rivera v. 11 W. 42 Realty, 176 AD3d 587;  

Personnel Lift

First Dept. 2013. Common Law Negligence Claim Not Dismissed. Whether Breach of Contract Caused Accident. Plaintiff a passenger in temporary personnel lift at construction site that became stuck, causing plaintiff & others to exit the hoist through exit at top of hoist. Atlantic installed hoist using “new and of first quality parts.” Emerging from top of the hoist, plaintiff struck by piece of guide rail that was part of hoisting mechanism. Contract between Atlantic & GC required Atlantic to install hoist using “new and of first quality parts.” Atlantic admitted it used recycled parts. As such, issue of fact whether Atlantic’s breach of contract caused accident in launching a force of harm. Wade v. Bovis Lend Lease LMB, Inc., 102 AD3d 476;

Crane

First Dept. 2019. Issue of Fact Whether Launched Instrument of Harm. Hoffman refurbished the crane 1 year before accident & performed maintenance on it several times thereafter. Contractual obligation, standing alone, will generally not give rise to tort liability in favor a third person. An exception exists where contractor creates or exacerbates a dangerous condition so as to have launched a force or instrument of harm. Hoffman failed to adequately address findings of post-accident investigation, which concluded several maintenance & repair issues contributed to over wear on crane’s wire ropes. While Court dismissed Labor Law claims against Hoffman, as it was not a proper Labor Law defendant, common law negligence claims not dismissed. DeGidio v. City of NY, 176 AD3d 452;    

Sidewalk Shed Built Too Close to Area Where Bus Passengers Disembarked

First Dept. 2018. Issue of Fact. Plaintiff’s expert affidavit raised issue of fact as to whether scaffolding company launched instrument of harm by negligently placing a sidewalk shed’s steel vertical support beams, which were allegedly too close to where bus passengers would be disembarking, without providing warning or wrapping the beams with padding. Benitez v. City of NY, 160 AD3d 445;  

Glass Walls

First Dept. 2018. Issue of Fact. Accident occurred when plaintiff walked into a floor to ceiling glass wall installed by GM Glass. Issue of fact whether GM Glass was still on site at time of accident, whether it was responsible for installing & maintaining blue marking tape on glass wall & if so, whether it failed to do so, thereby exacerbating or creating a dangerous condition so as to have launched a force or instrument of harm.  Cardenas v. Somerset Partners, LLC, 158 AD3d 439;

Staircases

First Dept. 2014. Issue of Fact. Launched Instrument of Harm. ECI’s motion denied as plaintiff alleged she fell on staircase constructed by ECI. Although contractual obligation not generally give rise to tort liability in favor of third party such as a plaintiff, contractor potentially liable in tort to third persons when contracting party, in failing to exercise reasonable care in performance of its duties, launches a force or instrument of harm. ECI failed to proffer sufficient evidence showing staircase properly constructed or inspected in reasonable & prudent manner prior to accident. Ingleton v. Brooks Shopping Ctrs., LLC, 122 AD3d 413;

Not Launch Instrument of Harm. Common Law Negligence Dismissed Under Espinal.

Falling Elevator

First Dept. 2019. Not Launch Instrument of Harm. Common Law Negligence Dismissed. PS Marcato, which inspected & made repairs to the elevator, established it did not create dilapidated condition of elevator & therefore not launch a force or instrument of harm. Iliewat v. PS Marcato El. Co., 178 AD3d 517;

Scaffolds

First Dept. 2017. Common Law Negligence Dismissed. Plaintiff fell from scaffold erected by defendant. Defendant submitted evidence it not owe a duty to plaintiff, who was a third party to its contractual relationship with premises owner. Plaintiff failed to show defendant launched instrument of harm, that plaintiff detrimentally relied on Perimeter’s continued performance of its contractual duties or that defendant entirely displaced premises owner’s duty to safely maintain premises. Velecela v. Perimeter Bridge & Scaffolding Co., 147 AD3d 647;

Second Dept.

Common Law Negligence Not Dismissed Under Espinal

Electric Shock

Second Dept. 2013. Action Not Dismissed. Electrical Contractor’s Motion to Dismiss Denied. Issue of fact whether electrical contractor negligent. Plaintiff working as culinary supervisor for food service contractor in kitchen area of recently constructed building on grounds of National Tennis Center in Corona, Queens. As plaintiff attempted to plug his cell phone charger into outlet, he sustained severe electrical shock. ADCO was subcontractor responsible for installing electrical system in the new building. ADCO argued that as plaintiff not a party to ADCO’s subcontract with Mack, ADCO owed plaintiff no duty of care. However, there was evidence whether ADCO negligent in failing to install ground fault circuit interrupters (GFCI) in kitchen area of building & thereby created hazardous condition. Johnson v. City of NY, 102 AD3d 746;

Scaffolds

Second Dept. 2018. Action Not Dismissed. Plaintiff fell when scaffold on which he was working moved, causing a loss of balance & a fall. Allegation that Rockledge installed scaffold fell within Espinal “force or instrument of harm” exception. As Rockledge failed to demonstrate it not negligently install subject scaffold, burden never shifted to plaintiff to raise issue of fact. Giannas v. 100 3^rd Ave. Corp., 166 AD3d 853;

Ladders

Second Dept. 2021. Issue of Fact Whether Defendant Launched Instrument of Harm. Contractor may be said to have assumed a duty of care & thus, be potentially liable to third persons when the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force of instrument of harm. Here, alleged facts would establish PCL launched a force of instrument of harm by PCL providing plaintiff unsecured & unstable ladder, which caused accident. PCL failed to establish that it did not create or launch instrument of harm. Cando v. Ajay Gen. Constr. Co., 200 AD3d 750;

Second Dept. 2021. Issue of Fact. Ladder. Contractor failed to show it not launch instrument of harm. Subcontractor gave direction to seal the chimney, without alerting other contractors fireplace at issue was rendered inoperable due to the inability to ventilate smoke. Tim Irwin of Lee Construction testified intention was for all fireplaces in the property to be operable. Plaintiff fell from a ladder in an attempt to unseal a chimney. Santibanez v. North Shore Land Alliance, 197 AD3d 1123; 

Sidewalk Bridges

Second Dept. 2007. Defendant’s Motion Denied. Launched a force or instrument of harm. Plaintiff alleged Spring created dangerous condition by building elevated sidewalk bridge with raised plank, causing bridge to jolt & a motor hoist to fall on plaintiff. While generally contractual obligation, standing alone, is insufficient to give rise to tort liability in favor of non-contracting party, exception is where entity creates unreasonable risk of harm to others, or increases that risk, sometimes described as conduct that has launched a force or instrument of harm. Allegation that Spring negligently constructed sidewalk bridge with raised plank falls within this exception. Spring’s motion for summary judgment denied. Ragone v. Spring Scaffolding, Inc., 46 AD3d 652; 

Allowing Excess Concrete to Remain on Ramp After Construction Completed

Second Dept. 2021. Issue of Fact. Plaintiff tripped & fell in parking garage. BAR was Construction Manager for construction of garage. Plaintiff raised issue of fact as to whether Barr allowed excess concrete to remain on the ramp of parking garage after construction & as such, whether Barr negligently created or exacerbated a dangerous condition by launching a force of harm. Guzman v. Jamaica Hosp., 190 AD3d 705;

Fences

Second Dept. 2015. Action Not Dismissed. Plaintiff struck by fence door as he walked adjacent to construction site owned by Shelter Rock Homes. Shelter Rock hired Luciano Construction to perform masonry work. Plaintiff raised issue of fact as to whether Luciano launched a force or instrument of harm by failing to repair fence door. Matos v. Shelter Rock Homes, Inc., 130 AD3d 883; 

Location of Sidewalk Shed

Second Dept. 2011. Common Law Negligence Not Dismissed Against Owner & GC. Plaintiff slipped & fell on ice walking on sidewalk abutting premises owned by Berry Complex. Such premises were undergoing renovation & sidewalk shed had been built. Issue of fact whether York launched instrument of harm for negligently building the shed. With respect to Design Built, issue of fact whether it exercised control over the construction site, as GC, & whether it created or had notice of hazardous condition. Owner failed to establish lack of notice. Anastasio v. Berry Complex, LLC, 82 AD3d 808;  

Second Dept. Common Law Negligence Dismissed Under Espinal

Scaffolds

Second Dept. 2021. Action Dismissed. Plaintiff struck by pipes from disassembled scaffold while at work. Defendants not launch a force or instrument of harm creating or exacerbating alleged dangerous condition. Bernal v. ACS Sys. Assoc., 197 AD3d 603; 

Excavation. Sub-Contracted Out Work.

Second Dept. 2015. Action Dismissed. Infohighway defendants hired by NY State Unified Court System to install high speed telecommunications network known as CourtNet, which could be accessed from all courthouses in the state. To provide such access, trenches were excavated in roadways for laying of fiber optic cable. Infohighway subcontracted such excavation work to Bancker Construction. Several years after completion of project, plaintiff fell over raised portion of roadway surface that had been excavated & restored by Bancker. Action dismissed against Infohighway defendants as they owed no duty to plaintiff. Infohighway demonstrated they subcontracted to Bancker construction work on roadway on which plaintiff fell, including restoring the roadway & extent of their involvement in construction work limited to receiving regular updates from Bancker & conducting inspections after Bancker’s work performed. As such, Infohighway not perform work causing accident & work performed by independent contractor & thus, Infohighway not launch force or instrument of harm causing accident. Also, as plaintiffs not allege in their Complaint or bill of particulars that would establish that any of other exceptions to general rule set forth in Espinal applied in this case, Infohighway was not required, in their motion, to negate possible applicability of any of those exceptions. Miller v. Infohighway Communications Corp., 115 AD3d 713;  

HVAC Units

Second Dept. 2015. Action Dismissed. Fire inspector for NYC Fire Dept. fell off I-beam located on building’s roof. Inspector attempting to inspect heating, ventilation & HVAC units which belonged to Tory Burch, LLC. HVAC units installed by Polar Mechanical. Plaintiff was not a party to Polar’s contract with Tory Burch to install & maintain the HVAC units & as such, owed no duty of care to plaintiff. Scott v. 11 W. 19^th Assoc., LLC, 125 AD3d 749;

Loading Dock

Second Dept. 2019. Action Dismissed. Plaintiff tripped on a loading dock ramp in parking lot of building where he worked. Pinheiro Contracting owed no duty to plaintiff as it launched no force or instrument of harm. Fidler v. Gordon-Herricks Corp., 173 AD3d 840;

Struck by Vehicle. Furnished Condition for Accident Only.

Second Dept. 2016. Action Dismissed. Merely Furnished The Condition for Accident. Plaintiff working as laborer for nonparty El Sol Contracting on construction project & his job was to set up & take down traffic lane closures. Plaintiff picking up El Sol’s lane closures by himself, in violation of El Sol protocol & governmental regulation, which required such work be done with a truck to shadow the worker & to act as barrier between worker & traffic. Plaintiff struck by a vehicle. Plaintiff sued Defoe Corp., a contractor also performing work near El Sol project pursuant to separate contract with the state. Plaintiff alleged that Defoe removed its own lane closures without first advising El Sol & claimed such removal was negligent. While the issue of proximate cause is generally one for finder of fact, liability may not be imposed upon a party who merely furnishes the condition or occasion for the occurrence of the event but is not one of its causes.  Defoe demonstrated none of Espinal exceptions were applicable as the complained of conduct was not a proximate cause of accident but merely furnished the condition for the accident. Federico v. Defoe Corp., 138 AD3d 682;

Second Dept. 2016. Action Dismissed. Merely Furnished The Condition for The Accident. Plaintiff fell into a trench while riding bicycle in construction area. While riding bicycle north on US Route 9W in Stony Point, plaintiff noticed traffic cones & flagperson at construction site near intersection of US Route 9W & East Makin Street. Flagperson looking north, not looking at traffic approaching him from behind, as he waved traffic to proceed north. As plaintiff approached area, northbound car startled plaintiff by driving close to him causing plaintiff to veer his bicycle into trench. Flagperson testified he was at site for purpose of stopping traffic in order to move equipment in & out of site. Tilcon was GC of project. Evidence established Tilcon furnished the condition for plaintiff’s accident & that proximate causes of accident were actions of plaintiff & operator of northbound vehicle causing plaintiff to veer bicycle into trench & not actions of Tilcon’s flagperson. Canals v. Tilcon NY, Inc., 135 AD3d 683;

Ladders

Second Dept. 2014. Action Dismissed. Plaintiff went to a building to inspect AC unit his employer had installed to determine why one of the rooms in building not receiving cool air. As plaintiff ascended a permanently fixed ladder to a cinder block wall leading to roof, he fell. Action dismissed against S&V, which installed the ladder as S&V did not owe a duty to care to plaintiff, as plaintiff not a party to S&V’s contract with building owner. Plaintiff failed to present evidence that S&V launched a force or instrument of harm. Gdanski v. 5822 Broadway Assoc., LLC, 116 AD3d 658;

Metal Grate Covering Vault on Sidewalk

Second Dept. 2019. Action Dismissed. Plaintiff tripped & fell over concrete surrounding sunken metal grate covering a vault. Con Ed owned metal grate. VRD Construction hired by Con Ed to replace equipment located underneath metal grate. MPM Exclusive hired by premises owner to install sidewalk in front of his home. In general, a contractual obligation, standing alone, not give rise to tort liability in favor of third party. Premises owner, MPM & also VRD had action dismissed by establishing work performed on grate & vault not create dangerous condition causing accident & as such, not launch a force or instrument of harm. Randazzo v. Consolidated Edison Co. of NY, 177 AD3d 796; 

Third Dept.

Common Law Negligence Action Not Dismissed Under Espinal

Depression in Outdoor Field

Third Dept. 2019. Issue of Fact of Defendant’s Negligence. Plaintiff, correction officer at state correctional facility, fell while walking through grassy field on facility property. Defendant was contractor retained by Office of General Services to perform certain heating & plumbing work at facility. Plaintiff alleged he fell in a rut or depression defendant created with its construction equipment. A contracting party generally does not owe duty of care to non-contracting party third party. However, there are 3 exceptions: (1) where contracting party, in failing to exercise reasonable care in performance of its duties, launches a force or instrument of harm; ( 2) where plaintiff detrimentally relies on continued performance of contracting party’s duties & (3) where contracting party has entirely displaced other party’s duty to maintain the premises safely. Defendant offered evidence it did not create the hazardous condition. Defendant’s project manager testified its large equipment was last on the project site in October 2015 & owner’s representative signed off on the ground restoration work performed by defendant’s subcontractor in March 2016.  However, plaintiff testified he observed a scissor lift with big tires in the field within a month prior to his accident. Plaintiff testified defendant was insulating pipes installed in November 2015. Morales v. Digesare Mech., Inc., 176 AD3d 1442;

Common Law Negligence Claim Dismissed Under Espinal

Ramps. 14 Years Post-Construction

Third Dept. 2008. Action Dismissed. 14 years after Quay completed construction, plaintiff fell when he stepped on transition flare of handicapped ramp constructed by Quay. As Quay’s construction of ramp conformed to architectural drawings & Town having inspected & approved the construction, even if there was a violation of Code as it existed in 1988, Quay’s construction not rise to level of launch a force or instrument of harm. Luby v. Rotterdam Sq., LP, 47 AD3d 1053;  

Snow & Ice

Third Dept. 2007. Action Dismissed.  Plaintiff slipped & fell at work site from snow. Bohl hired to remove snow at site. Plaintiff’s claims against Bohl premised on Bohl’s alleged breach of its contract for snow removal with DASNY. A contractual obligation, even if breached, will only give rise to duty to noncontracting parties, including, where contracting party launches a force or instrument of harm. It was contended that Bohl’s failure to promptly remove snow led to icy condition causing plaintiff’s fall as heavy vehicular & pedestrian traffic caused the snow to pack down, creating icy surface. However, there was no assertion that Bohl’s snow removal efforts rendered the area less safe than it would have been had Bohl not acted at all. Bohl’s motion granted. Gadani v. DASNY, 43 AD3d 1218;  

Fourth Dept.

Airport Fall. Common Law Negligence Action Dismissed.

Fourth Dept. 2015. Plaintiff slipped & fell at Greater Rochester International Airport. Christa Construction was construction manager for a construction project at airport. LeChase was GC. Both defendants established they owed no duty of care to plaintiff who was third party passerby with no relationship of privity with defendants. In opposition, plaintiff failed to raise any Espinal exceptions. Tracy v. David Christa Constr., Inc., 125 AD3d 1291; 

Common Law Negligence Action Not Dismissed Under Espinal

Manually Lowering a Door

Fourth Dept. 2024. Plaintiff injured manually lowering a large commercial garage door using a bucket loader. Plaintiff submitted affidavit of engineer opining accident caused by improper installation of the torsion spring system on the garage door. The door was installed pursuant to a contract between the Town & defendant Jay M. Door Service. Defendant asserted it owed no duty of care to plaintiff as plaintiff not a party to defendant’s contract with the Town. Court rejected that where the contracting party in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm.  Defendant failed to establish it did not launch an instrument of harm in negligently performing its duties. Tousant v. Hamburg Overhead Door, Inc., 2024 NY Slip Op 06458;  

Parking Lot Hole Fourth Dept. 2013. Issue of Fact. Parking lot owner Piedmont contracted with Bach Excavating to raze structures on the premises & fill in holes or voids. Plaintiff’s foot fell through hole in parking lot & entered a hidden vault underneath it. Although plaintiff was a noncontracting third party as to construction contract between Bach & Piedmont, Bach may be liable in failing to exercise reasonable care in performance of its duties if it launched a force or instrument of harm or otherwise made the area less safe than it was before the construction began. Issues of fact whether Bach only partially filled in the vault & concealed its existence, thereby creating a force or instrument of harm. Paro v. Piedmont Land & Cattle, LLC, 111 AD3d 1425; 

March 26. New York. Damages. 58-Year-Old Pedestrian Struck by Police Vehicle in Intersection. Crush Injury to Ankle; Open Reduction & Internal Fixation.

Deflorio v. County of Nassau, 2026 NY Slip OP 01765, decided March 25, 2026, Second Dept.

While crossing the street at an intersection in Mineola, 58-year-old plaintiff struck by a police vehicle owned by County of Nassau. Plaintiff sustained injuries to her left ankle, which was crushed under the wheel of the police vehicle causing multiple fractures requiring open reduction and internal fixation.Nassau County Jury awarded plaintiff $1 million for past pain & suffering and $2,250,000 for future pain & suffering. Appellate Court affirmed the award. Decision cited Pimenta v. 1504 Cia, LLC, 197 AD3d 670; Kowalsky v. County of Suffolk, 139 AD3d 906; Kayes v. Liberati, 104 AD3d 739; De La Cruz v. NYCTA, 48 AD3d 508.

March 25. New York. PAST & FUTURE PAIN & SUFFERING AWARDS.  APPELLATE COURTS & POST TRIAL COURT DECISIONS.

Cervical Spine Surgery

Decisions provide a ceiling for defendants and a floor for plaintiffs.

A jury verdict is not the final say of a plaintiff’s pain & suffering award. Both plaintiffs & defendants have the right to request the trial court judge and/or an appellate court to rule on the whether the jury’s verdict, including past and future pain and suffering award was reasonable.

While trial courts and appellate court decisions frequently state jury verdicts are to be afforded deference, such deference is not extended to verdicts of pain & suffering failing to align with previous appellate court decisions. While jury verdicts provide how jurors financially valued pain & suffering of an injury, appellate courts, not jurors, decide monetary value of injury’s pain & suffering.    

Appellate Courts & trial judges have authority to review a jury’s verdict & decide financial value of an injury’s pain & suffering based upon the CPLR.

CPLR 4404(a).

The court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial … where the verdict is contrary to the weight of the evidence or in the interests of justice.

CPLR 5501(c)

In reviewing a money judgment in an action in which an itemized verdict is required by rule forty one hundred eleven of this chapter in which it is contended that the award is excessive or inadequate and that a new trial should have been granted unless stipulation is entered into a different award, the appellate division shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation.

The decisions here go beyond construction cases to other cases where the type of injury sustained was also type of injuries suffered at a construction site.

Cervical Spine Surgery. Past & Future Pain & Suffering Awards       

First Dept.

First Dept. 2019. Dacaj v. NYC Transit Auth., 170 AD3d 561;

Trial Court. Supreme Court, Bronx County.

Cervical laminal fractures, bulges & herniations. 2 surgeries performed to his neck.

Jury Award. $1.2 million for past pain & suffering. $1 million for future pain & suffering over 10 years.

Appellate Court. Reduced award for past pain & suffering to $1 million. Reduced future pain & suffering to $675,000.

First Dept. 2007. Hairston v. Metro-North Commuter RR, 34 AD3d 233;

Trial Court. Supreme Court, NY County.

Fall from stepladder.

Spinal fusion surgery.

Jury Award. $50,000 for past pain & suffering. $100,000 for future pain & suffering.

Appellate Court increased award for past pain & suffering to $100,000 & increased future pain & suffering to $200,000.

2023. Trial Court. NY County. Barcia v. Costco Wholesale Corp., 2023 NY Slip Op 31642(U);

56 year old suffering slip & fall on puddle of water at retail store.

Neck surgery. Degenerative disc disease.

Jury Award. $250,000 for past pain & suffering. $60,000 for future pain & suffering.

Trial Court. Affirmed jury award.

First Dept. 2019. Trial Court. Bronx County. Guadalupe v. Stevenson, 2019 NY Slip Op 30953(U);

MV Accident.

Cervical fusion & left knee surgery.

Jury Awards. $650,000 for past pain & suffering. $1 million for future pain & suffering.

Trial Court affirmed award for past pain & suffering. Reduced award for future pain & suffering to $850,000.   

Second Dept.

Second Dept. 2025. Aguilar v. Graham Terrace, LLC, 2025 NY Slip Op 02564;

Trial Court. Supreme Court, Kings County.

While standing on a beam performing demolition work, a heating, ventilation and AC unit duct fell and struck plaintiff, causing a fall of 15-20 to the floor.  

Fractured femur requiring open reduction internal fixation surgery. A metal road and screws were inserted into plaintiff’s left leg. Further surgery to remove one of the screws. As a result of the accident, plaintiff developed problems with both of his knees and spine, requiring arthroscopic surgery on each knee and a laminectomy.

Jury Award. $1.5 million for past pain and suffering.  $2.5 million for future pain and suffering over a period of 35 years.

Trial Court reduced awards to $800,000 for past pain & suffering and $1 million for future pain and suffering.

Appellate Court held jury award not deviate from material compensation.

Second Dept. 2023. Petit v. Archer, 218 AD3d 695;

Trial Court. Supreme Court, Kings County.

Motor vehicle accident.

Cervical fusion surgery.

Jury Award. $600,000 for past pain & suffering. $1.5 million for future pain & suffering.

Appellate Court reduced award for future pain & suffering to $1.2 million.

Second Dept. 2021. Masmalaj v. NYC Economic Dev. Corp., 197 AD3d 1294;

Trial Court. Supreme Court, Kings County.

Fall from scaffold.

Herniated disc at C4-5. Cervical fusion surgery.

Jury Award. $2 million for past pain & suffering. $349,840 for future pain & suffering for 36 years.

Appellate Court reduced award for past pain & suffering to &1 million. Reduced future pain & suffering to $55,763.  

Second Dept. 2021. Nieva-Silvera v. Katz, 195 AD3d 1035;

Trial Court. Supreme Court, Queens County.

Motor vehicle accident.

Herniated disc at C6-C7 & tears of medial & lateral meniscus & partial tear of lateral collateral ligament of left knee. Spinal fusion surgery for herniated disc. Testimony of likely future fusion surgery at C5-C6.

Jury Award. $5 million for past pain & suffering. $36 million for future pain & suffering over period of 41 years.

Appellate Court reduced past pain & suffering award to $750,000. Reduced future pain & suffering award to $1.5 million.

Second Dept. 2021. Rojas v. Brabant, 192 AD3d 934;

Trial Court, Supreme Court, Westchester County.

Herniated disc resulting in spinal fusion surgery.

Jury Award. $100,000  award for past pain & suffering. $50,000 for future pain & suffering over 14.5 years.

Appellate Court increased past pain & suffering award to $300,000. Increased future pain & suffering to $200,000.   

Second Dept. 2019. Tarpley v. NYC Tr. Auth., 177 AD3d 929;

Trial Court. Supreme Court, Queens County.

MV accident.

Anterior cervical discectomy & fusion surgery. Laminectomy for placement of spinal cord stimulator to relieve lower back pain.

Jury Award. $3 million for past pain & suffering. $7 million for future pain & suffering.

Appellate Court reduced past pain & suffering award to $1 million. Reduced future pain & suffering award to $2 million.

Second Dept. 2019. Chung v. Shaw, 175 AD3d 1237;

Trial Court. Supreme Court, Kings County.

MV accident.

Anterior cervical discectomy & fusion surgery at C5-C6 level.

Jury Award. $25,000 for past pain & suffering. $0 for future pain & suffering.

Appellate Court increased award for past pain & suffering to $150,000. Increased award for future pain & suffering to $100,000.  

Second Dept. 2019. Kapassakis v. MTA, 193 AD3d 835;

Trial Court. Supreme Court, Nassau County.

2 cervical spine discectomy & fusion surgeries & arthroscopic knee surgery.

Jury Award. $75,000 for past pain & suffering. $0 for future pain & suffering.

Appellate Court increased past pain & suffering award to $200,000.  

Second Dept. 2017. Nayberg v. Nassau County, 149 AD3d 761;

Trial Court. Supreme Court, Nassau County.

MV accident.

Surgery for cervical level herniated disc.

Jury Award. $600,000 for past pain & suffering. $1 million for future pain & suffering.

Appellate Court affirmed jury award.

Second Dept. 2017. Starkman v. City of Long Beach, 148 AD3d 1070;

Trial Court. Supreme Court, Nassau County.

MV accident.

17 months after accident, multi-level cervical fusion to treat disc herniations. When the bone failed to properly fuse, second surgery performed 15 months later. Fractures of transverse processes of C6, C7 & T1 vertebrae. 3 fractured ribs.

Jury Award. $500,000 for past pain & suffering. $750,000 for future pain & suffering.

Appellate Court increased award for past pain & suffering to $750,000. Increased award for future pain & suffering to $1.5 million. 

Second Dept. 2016. Kowalsky v. County of Suffolk, 139 AD3d 903;

Trial Court. Supreme Court, Suffolk County.

Plaintiff struck by vehicle.

Laminectomy & lumbar spinal fusion at L4-5.

Jury Award. $200,000 for past pain & suffering. $850,000 for future pain & suffering for 41 years.

Appellate Court affirmed jury award.  

Second Dept. 2015. Kusulas v. Saco, 134 AD3d 772;

Trial Court. Supreme Court, Kings County.

MV accident.

Herniated discs at C4-5 & C5-6 requiring spinal fusion surgery. Second surgery after bone graft between C5-6 failed to properly fuse, causing adjacent disc at C6-7 to herniate.

Jury Award. $1 million for past pain & suffering. $1 million for future pain & suffering.

Appellate Court affirmed jury award.

Second Dept. 2014. Cicola v. County of Suffolk, 120 AD3d 1379;

Trial Court. Supreme Court, Suffolk County.

MV accident.

Injury to cervical region of spine requiring 2 spinal fusion surgeries.

Jury Award. $325,000 for past pain & suffering. $250,000 for future pain & suffering.

Appellate Court reduced award of past pain & suffering to $150,000. Reduced future pain & suffering to $100,000.  

Second Dept. 2009. Baird v. VIP Mgt. Co., Inc., 60 AD3d 608;

Trial Court. Supreme Court, Westchester County.

3 surgeries to repair 2 discs between 5^th & 6^th vertebrae. Such surgeries involved placing bone grafts between vertebrae. Graft between 6^th & 7^th vertebrae not fuse properly.

Jury Verdict. $100,000 for past pain & suffering. $300,000 for future pain & suffering.

Appellate Court increased award for past pain & suffering to $400,000.  

Second Dept. 2008. Kihl v. Pfeffer, 47 AD3d 154;

Trial Court. Supreme Court, Nassau County.

MV Accident. College student.

Ankle was casted and neck stabilized with “halo device.” For 2 months after the accident, confined to wheelchair. After this plaintiff was able to return to college, graduate & obtain a job. However, neck persisted. Underwent spinal fusion surgery which removed the disc between C2/C3 vertebrae & replacing it with bone from her hip.  Such surgery only increased her pain level. Pain medications prevented her from having more children.

Jury Award. $625,000 for past pain & suffering. $1.2 million for future pain & suffering.

Appellate Court affirmed jury award.

Second Dept. 2007. Sanz v. MTA-Long Is. Bus, 46 AD3d 867;

Trial Court. Supreme Court, Nassau County.

MV accident.

Herniated discs in cervical spine. Anterior cervical discectomy with allograft & plate fusion.

Jury Award. $350,000 for past pain & suffering. $400,000 for future pain & suffering.    

Appellate Court reduced award for future pain & suffering to $200,000.

Second Dept. 2004. Lifshits v. Variety Poly Bags, 5 AD3d 566;

Trial Court. Supreme Court, Kings County.

Struck by truck.

Spinal fusion surgery.

Jury Award. $200,000 for past pain & suffering. $825,000 for future pain & suffering.

Appellate Court reduced award for past pain & suffering to &150,000. Reduced future pain & suffering to $500,000.

Third Dept.

Third Dept. 2004. Felitti v. Daughriety, 12 AD3d 909;

Trial Court. Supreme Court, Rensselaer County.

MV accident.

Spinal fusion surgery.

Jury Award. $30,000 for past pain & suffering. $25,000 for future pain & suffering.

Appellate Court. Affirmed jury award.  

Fourth Dept.

Fourth Dept. 2024. Vasquez v. Gilbane Bldg. Co., 224 AD3d 1232;

Trial Court. Supreme Court, Erie County.

Construction site accident. Struck by falling ladder.

57 years old. Projected life expectancy of 28 years.

Anterior discectomy & spinal fusion, requiring removal of discs at C4-5; C5-6 and C6-7 & insertion of spacers & bone graft. Plaintiff established would require future surgery within 2 years from herniation at C3-4. Also established would require surgery to repair labral or posterior tear of shoulder.

Jury Award. $1,250,000 for future pain 7 suffering.

Appellate Court affirmed jury award.

Fourth Dept. 2015. Swatland v. Kyle, 130 AD3d 1453;

Trial Court. Supreme Court, Erie County.

Herniated discs at C5-C6 & C6-C7 requiring surgery.

Jury Award. $30,000 for past pain & suffering. $15,000 for future pain & suffering.

Appellate Court increased award for past pain & suffering to $150,000. Increased award for future pain & suffering to $50,000.

Fourth Dept. 2008. Orlikowski v. Cornerstone Community Fed. Credit Union, 55 AD3d 1245;

Trial Court. Supreme Court. Erie County.

Fall from scaffolding.

Underwent a discectomy & testimony he would require spinal fusion surgery.

Jury Award. $100,000 for past pain & suffering. $28,000 for future pain & suffering.

Appellate Court increased future pain & suffering to $100,000. 

Fourth Dept. 2007. Huff v. Rodriguez, 45 AD3d 1430;

MV accident.

7 herniated discs & 3 annular tears in cervical spine. 2 discogram procedures. 4 level discectomy fusion surgery.

Jury Award. $500,000 for past pain & suffering. $5,250,000 for future pain & suffering over 42 years. Appellate Court. Reduced future pain & suffering award to $3 million.

March 24. New York. When Object Falls Only a Few Feet Before Striking Plaintiff, Determine Weight of Falling Object in Assessing Whether §240(1) Was Violated.

Campuzano v. AECOM, 2026 NY Slip Op  30982 (U), decided March, 16, 20236, Hon, Sabrina Kraus, Supreme Court, NY County. Plaintiff was employed to cut & remove windows to a building under demolition. Plaintiff & coworkers cut a window from building’s façade & attached such window to a pulley with ropes, operated manually by workers, not by mechanical means. Such window weighed 600 pounds. To guide window’s descent, plaintiff stood next to the window with his hands underneath the window. As it was being lowered, pulley ropes got stuck, stopping its descent. As the window hovered 2 feet above plaintiff at this time, it suddenly fell, striking plaintiff in the chest, causing him to fall backwards & coming into contact with guardrail of the scaffold.

In awarding summary judgment to plaintiff on the §240(1) action, decision held, “The hazard posed by the window was related to the effect of gravity as the weight & height of the window created a significant, harmful force, even over the course of a relatively short descent, that warranted securing for the purposes of the undertaking.”

Plaintiff’s expert witness opined plaintiff & co-workers should have been provided with a crane & pulley system operated by electric winch “such that the window would have been properly secured & gradually lowered.” Held that plaintiff’s proposed safety device falls under §240(1) as it involves a pulley system that would have given adequate protection. A pulley is one of the enumerated safety devices of §240(1).

Decision held expert’s report was not proffered to prove that plaintiff was injured due to the window falling & striking him. Rather, report demonstrated rope & pulley configuration used was inadequate & that a crane, pulley & electric winch system would have prevented the accident.

Court held defendants’ reliance on integral to the work defense was misplaced as it is a defense to a §241(6) claim, not a §240(1) claim. Decision also held accident reports were not admissible as reports were unsworn.

Comment. What is appreciated is the decision stated the enumerated safety device of §240(1) that should have been utilized by the workers, i.e., crane and pulley system operated by electric winch. Such decision provides guidance to the construction industry. As the window weighed 600 pounds, it could generate a significant force of gravity in a fall of only a few feet. When the falling object falls only a few feet before striking plaintiff, determine the weight of the falling object when assessing whether §240(1) was violated.

March 24. §241(6) Cause of Action. Industrial Code 12 NYCRR 23-5.1(h). Scaffold erection and removal.

Every scaffold shall be erected and removed under the supervision of a designated person.

Comment. As 23-5.1(h) relates to scaffolds, if the accident not arise from a scaffold, 23-5.1(h) dismissed.  If the accident occurred as the scaffold was not being constructed or removed, 23-5.1(h) is dismissed. 

Was lack ofsupervision by designated person the proximate cause of the accident?A ”designated person” can be plaintiff’s foreman. 

If 23-5.1(h) is not applicable and it is the only Industrial Code alleged, 241(6) action is dismissed.  241(6) action requires an applicable and safety specific Industrial Code.

23-5.1(h) Sufficiently Specific to Support 241(6) Cause of Action

Second Dept. 2009. Abreo v. Clyde, 60 AD3d 878;

23-5.1(h) “Designated Person”

23-5.1(h) Not Dismissed.

First Dept.

First Dept. 2015. 23-5.1(h). Issue of Fact Whether Applicable. Scaffold provided could not reach the window plaintiff was required to caulk. To reach such window, plaintiff had to place the scaffold over the sidewalk bridge. Leaning at an extreme angle over sidewalk bridge, scaffold collapsed. Medina v. 42^nd & 10^th Assoc., LLC, 129 AD3d 610;

Second Dept.

Second Dept. 2021. 23-5.1(h) Not Dismissed. Specifies that every scaffold shall be erected & removed under the supervision of “designated person.” Defendant failed to show such section was not applicable. To create a scaffold, plaintiff affixed triangular, metal brackets to the outside of the house & then laid wooden planks across brackets. When plaintiff stepped on scaffold, it collapsed. Debennedetto v. Chetrit, 190 AD3d 933;

23-5.1(h) Not Violated. Dismissed.

First Dept.

First Dept. 2021. 23-5.1(h) Not Violated. Absence of “designated person” not cause of accident. Plaintiff injured when he fell on sidewalk during his work of deconstruction & disassembly of sidewalk bridge. Corona v. HHSC 13^th St. Dev. Corp., 197 AD3d 1025;

First Dept. 2019. 23-5.1(h) Not Violated. With plaintiff’s deposition testimony that his foreman instructed him how to perform tiebacks & that he had been performing it daily the week before the accident, any violation of 23-5.1(h) by foreman’s absence from the job site at time of accident, was not the proximate cause of the accident.  Ortega v. Trinity Hudson Holding LLC, 176 AD3d 625;

First Dept. 2015. 23-5.1(h) Not Violated. No Inadequate Supervision. Plaintiff injured attempting to drag the platform by himself while standing on the braces of the scaffold, rather than waiting for another worker to return.  Held, “There is simply no basis to conclude that plaintiff’s accident was in any way the result of someone failing to adequately supervise him.”  Vitolo v. City of NY, 128 AD3d 614;

First Dept. 2012. 23-5.1(h) Dismissed.  As 23-5.1(h) regulates scaffolds, not apply as no scaffold involved in accident. Cappabianca v. Skanska USA Bldg. Inc., 99 AD3d 139;

Second Dept.

Second Dept. 2021. 23-5.1(h) Not Violated. Elevated platform not being erected or removed at time of plaintiff’s accident. Plaintiff, working in a tunnel, was standing on mobile, elevated platform that enabled him to avoid being struck by a passing train. However, “tunnel segments” being carried by train turned sideways, striking plaintiff as the train passed, causing him to fall. Devoy v. City of NY, 192 AD3d 665;

Second Dept. 2011. 23-5.1(h) Dismissed.  Deposition testimony of plaintiff & 2 other workers indicated a supervisor designated by their employer was present during scaffold dismantling process. While disassembling a scaffold, plaintiff fell from the scaffold. Canosa v. Holy Name of Mary, 83 AD3d 635;

Second Dept. 2010. 23-5.1(h) Not Violated. Scaffold not being erected or removed at the time of plaintiff’s accident. Allan v. DHL Express (USA), Inc., 99 AD3d 828;

Second Dept. 2007. 23-5.1(h) Not Apply.  Plaintiff’s use of the truck as functional equivalent of a scaffold had already ceased & the planks placed across the sides of the truck were already removed before the accident occurred. As such, any violation unrelated to plaintiff’s fall from the truck. Plaintiff fell as he was going from the back of the truck to the ground. Lavore v. Kir Munsey Park 020, LLC, 40 AD3d 711;

Third Dept.

Third Dept. 2008. 23-5.1(h) Not Violated. Plaintiff’s erection of scaffold was supervised by his supervisor, Mr. Clark. Plaintiff testified Clark was his supervisor, that Clark’s designee had instructed him in how to build the scaffold by himself & that he had used such method to construct 50 scaffold frame pieces a day in the 4 weeks prior to accident. Construction superintendent who oversaw the entire site testified Clark was general supervisor for labor, including scaffolding. Clark testified he inspected scaffolding periodically during the day to ensure it was built properly. Atkinson v. State of NY, 49 AD3d 988;

Fourth Dept. Fourth Dept. 1996. 23-5.1(h) Dismissed.  As 23-5.1(h) regulates scaffolds, not apply as no scaffold involved in accident. Bennion v. Goodyear Tire & Rubber Co., 229 AD2d 1003;

March 24. New York. Open & Obvious Condition. Complaint Dismissed. Readily Observable by Use of One’s Senses.

Neal v. Extell Dev. Co., 2026 NY Slip Op 30957(U), decided March 13, 2026, Hon. Arlene Bluth, Supreme Court, NY County. Plaintiff testified she attended services “on and off” at Park Avenue Christian Church all the way back to the 1980s. At the time of her accident, the church was undergoing construction. At the time of her accident, she went to use the bathroom.

Plaintiff opened what she thought was a hallway door. Plaintiff testified, “I opened the door. I saw-I opened the door, and I ended up seeing-I saw a blue wall and white wall, and then everything went black.” Plaintiff testified she thought such door would lead to a side exit, which would take her outside where the trailer bathrooms were located while there was construction at the church. Such door was an empty elevator shaft used for wheelchairs.

Defendants contended plaintiff fell when she opened the door of a handicap accessible wheelchair lift that was under construction & fell 3 feet into the lift shaft. Defendants contend such dangerous condition was open & obvious & that plaintiff simply failed to look where she was going. Plaintiff admitted to using the bathrooms outside the church in trailers, due to the construction, on numerous occasions prior to the accident. The route to get to the bathrooms was through the sanctuary, indicated by signs & arrows & plaintiff ignored such directions.

Plaintiff asserted it was reasonable to expect the platform for the elevator lift would be on the floor rather than 3 feet below the floor & as the shaftway was hidden behind an unsecured door, it was neither open nor obvious.

A property owner has no duty to protect or warn against conditions that are open & obvious and not inherently dangerous. A condition is open & obvious if it is readily observable by those employing reasonable use of their senses, given the conditions at the time of the accident.

Motion Court held the photos depicting the elevator door clearly show there were elevator buttons next to it & any reasonable person seeing the buttons would suspect it was an elevator. Decision cited plaintiff’s testimony that “I opened the door, and then there was nothing. I saw ahead of me, and then there was nothing.” Decision held, “plaintiff offered no reason for deciding to step into what turned out to be a 3-foot elevator shaft. Plaintiff did not testify she thought she saw steps or an exit to get to the bathrooms.”

Photograph depicting the shaft “shows a clear and obvious drop off.” Also, plaintiff had used the bathrooms in the trailers outside the church prior to her accident & knew the route to get there. Church witness testified these were the only bathrooms. Plaintiff’s testimony of seeing a blue wall when she opened the door suggests she was able to see the obvious-an elevator shaft, not a hallway.

Comment. Such decision rests upon the undisputed fact that nothing prevented plaintiff from seeing a drop off & that it was not an exit door. As the reasonable person would have determined it was not an exit door, it was open & obvious condition. See other decisions below.  

§200 & Common Law Negligence Claims Dismissed

First Dept.

First Dept. 2022. §200 Dismissed. Fall Over Cross-Bracing Bar. Based upon deposition testimony & photographs, Titanium Co., which not erect scaffolding, established horizontal cross-bracing bar affixed to the scaffold, about 14 inches above ground, which plaintiff tripped over, was open & obvious & not inherently dangerous. Plaintiff, a carpenter for 28 years, testified cross-bracing readily observable, was aware of its presence, having stepped over it sans incident on 4-6 prior occasions & such bar was stationary & secure & not move or shift as his foot struck the bar. Plaintiff’s act of attempting to climb over cross-bracing bar, rather than use available openings in scaffold without bars, sole proximate cause of accident. Peranzo v. WFP Tower D Co., LP, 201 AD3d 486;

First Dept. 2021. §200 Dismissed. Mud And Slippery Conditions. “The testimony establishes the muddy and slippery condition of berm was readily observable.” Cruz v. Metropolitan Tr. Auth., 193 AD3d 639.

First Dept. 2010. Action Dismissed. Lower horizontal brace on scaffold open & obvious & not inherently dangerous where it painted bright blue & clearly presented a barrier to passerbys. Matthews v. Vlad Restoration Ltd., 74 A.D.3d 692;

First Dept. 2012. Common Law Negligence Dismissed. Alcohol Consumption Involved. Defendants established placement of orange-netted wooden barricades around construction area. Plaintiff after consuming several alcoholic beverages, decided to enter the area, resulting in trip & fall over open & obvious drain hole. Plaintiff’s testimony that he thought barricades were meant to keep only children out of construction area deemed by court to be “incredible.” Statements in plaintiff’s affidavit as to available routes around the area conflicted with his deposition testimony. Corrigan v. Stellar Mgt., LLC, 99 AD3d 632; 

Second Dept.

§200 & Common Law Negligence Dismissed

Jack Assembly. Not Inherently Dangerous.

Second Dept. 2007. Common Law & §200 Action Dismissed. Jack Assembly. Defendants established jack assembly which plaintiff tripped over, which had been set up at construction site, was described as 3 feet high, 30 inches wide & 30 inches deep, was open & obvious condition that was not inherently dangerous. Dinallo v. DAL Elec., 43 AD3d 981;

Yellow Warning Tape

Second Dept. 2006. Action Dismissed. Plaintiff tripped over yellow warning tape used to block off a sidewalk in front of construction siter as she was trying to cross the street to avoid construction area. Tape stretched low to the ground & held beneath the tire of a van parked in the street. As condition open & obvious, action dismissed. Sun Ho Chung v. Jeong Sook Joh, 29 AD3d 677; 

Fourth Dept.

Trip Over Base of Sidewalk Sign

Fourth Dept. 2016. Action Dismissed. Plaintiff tripped & fell over base of construction sign placed on sidewalk. Sign used in connection with construction project where Destro was GC. Defendants established such condition as open & obvious & not inherently dangerous. Plaintiff testified she noticed the sign right before accident. Photos showed sufficient room on sidewalk to allow pedestrians to avoid the base of the sign. Jordan-Parker v. City of Buffalo, 137 AD3d 1751;

Intentionally Place Hand Into Machine Fourth Dept. 2010. Common Law Negligence Claim Dismissed. During the course of his work as laborer, plaintiff placed his arm & hand into the engine compartment of skid steer at wastewater treatment plant. Plaintiff employed by construction company with whom defendant had contracted to remove a portion of the roof at plant. Contrary to plaintiff’s contention, there is no duty to warn against a condition that can be readily observed by a reasonable use of one’s senses. Plaintiff, based on his training & prior experience, knew or should have known of the harm to come from placing his arm & hand into engine compartment of a skid steer. Faery v. City of Lockport, 70 AD3d 1375;

March 24. New York. Labor Law §241(6). Industrial Code 23-1.7(e)(1) & (e)(2). “Obstructions or Conditions Which Cause Tripping Accidents.”

23-1.7(e). Tripping and other hazards.

Passageways. All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping. Sharp projections which could cut or puncture any person shall be removed or covered.

23-1.7(e)(2). Work 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 and may be consistent with the work being performed.

Poblocki v. Port Auth. of NY & NJ, 2026 NY Slip Op 30961(U), decided March 11, 2026, Hon. Arlene Bluth, Supreme Court, NY County. While working as electrician for Dooley Electric, plaintiff alleged she tripped on a raised bucket and drain “sticking out of the floor.” Photos depicted a drain in the middle of a hallway, contradicting defendants’ claim plaintiff fell in a room and not a passageway. Both sub-codes require an accident where a plaintiff trips, not slips, in a “passageway,” defined by courts as “long narrow way connecting parts of a building.” Decision also noted a “passageway pertains to an interior or internal way of passage inside of a building.” Such codes do not apply to tripping falls in open spaces outside of buildings. Based on such facts, motion court held 23-1.7(e)(1) was violated.

As to 1.7(e)(2), motion court cited Lenard v. 1251 Americas Assoc., 241 AD2d 391 (1^st Dept. 1997), defining the code term “sharp projection” to “include any projection that is sharp in the sense that it is clearly defined or distinct.” Lenard held that a door stop was such a “sharp projection.” With such precedent, it was found the drain constituted a “sharp projection,” a violation of 1.7(e)(2).

Comment. Defenses commonly raised to 23-1.7(e)(1) & (e)(2) is the accident occurred from slipping, not tripping the accident did not occur in a passageway but in a room or an open area outside of a building; accident not occur in a “work area;” and object causing tripping accident was integral to the work being performed.         

March 23. New York. Labor Law §200, §240(1) & §241(6) Not Provide Protection to Office Workers & Pedestrians Injured at Construction Sites. “Outside The Class.”  

Jianlan  Xie v. Skanska USA Civ., Inc., 2026 NY Slip OP 30955(U), decided March 5, 2026, Hon. Verna Saunders, Supreme Court, NY County. Plaintiff testified the accident occurred at her place of work at post office building at 421 8^th Avenue, Manhattan. Skanska hired by the Post Office to install a wire mesh system to cover a gap between the walls of the premises’ finance room, which rose to 8 feet above the ground. Skanska hired Kenco Wire to install the wire meshing. While Kenco Wire employee was performing such work, he was standing on a ladder drilling a hole on a wall when a level measuring stick fell forward, between the ceiling & wall, striking plaintiff who was sitting at a desk.

Motion Court was incorrect in denying defendants’ motion seeking dismissal of the §200 cause of action as plaintiff was not in the class of persons entitled to protections of alleged Labor Laws.

Agli v. Turner Construction Co., 246 AD2d 16 (1^st Dept. 1998), plaintiff struck by portion of falling wire-mesh overhead net intended to protect workers at construction site from falling debris. Plaintiff employed by property management company that was the managing agent of the 40-story building under construction. Plaintiff’s job duties were to prepare a stock room at the building & assemble tools required to operate the building. Labor Law §240(1) dismissed as plaintiff not within the class of person intended to be protected by §240(1).

Marmolejo-Cuellar v. Spar Knitwear Corp., 236 AD3d 889 (2^nd Dept. 2025), plaintiff, while walking inside an office, tripped & fell over loose, 2 by 4 pieces of wood, temporarily placed on the floor. Such office was located in a building owned by Spar Knitwear leased to third-party defendant Melcon General Contractors. Plaintiff employed by Melcon as a secretary to perform clerical work within the office.

Defendants submitted plaintiff’s deposition testimony & testimony of owner of Melcon, demonstrating plaintiff had not been retained to perform any repairs or construction work at the premises & was not engaged in such work when the accident occurred. Court dismissed the §200 §240(1) and §241(6) causes of action.

Comment. Look for this issue to also come up where a pedestrian is struck by falling debris onto adjacent sidewalk to a construction site. Such Labor Laws confined to protect workers at construction, demolition & excavation sites. Pedestrians or office workers suffering injuries from such work cannot recover under the Labor Laws. While the motion court decision yields no indication defendants made such argument, still, even in the absence of making the argument, motion court should have dismissed the Labor Law causes of action. Parties should move to reargue to the motion court or appeal, not because of new evidence, but in the interests of justice, as plaintiff cannot recover here under the Labor Laws.  

March 23. New York. “Rescue Doctrine” Applies to 241(6) Cause of Action

Comment. “The danger invites rescue doctrine establishes a duty of care toward a potential rescuer where a culpable party placed another person in a position of imminent peril which invites a third party, the rescuing party, to come to the aid of the person imperil.” Leonard v. The City of NY, 216 AD3d 51. Rescuing party suffers injury in the course of rescue attempt.

First Dept.

First Dept. 2023. 241(6) Applied.  Heavy steel beam that was supporting trench walls fell 5 feet onto plaintiff’s leg, causing such worker to cry out. Without hesitating, plaintiff climbed into the trench to aid his coworker. As plaintiff attempted to lift the steel beam off his coworker, plaintiff “felt a big pop” in his lower back & then blacked out from the pain. Plaintiff suffered lower back injuries. The “rescue doctrine” establishes a duty of care toward a potential rescuer where a culpable party has placed another person in a position of imminent danger which invites a third party, the rescuing plaintiff, to come to aid of imperiled person. Of course more than a mere suspicion of danger to the life of another is required before the rescue doctrine should be implemented. Applicability of the rescue doctrine must be viewed in light of all the facts and circumstances in each case.  Since the attempted rescue need only be a reasonable course of conduct at the time it is taken, it is of no import the danger was not as real as it appeared. It is for a fact finder to determine whether plaintiff’s rescue attempt was a reasonable course of conduct at the time. Leonard v. The City of NY, 216 AD3d 51;

Second Dept.

Second Dept. 1998. While Court Held Danger Invites Rescue doctrine not apply to 240(1), it may apply to other Labor Law provisions. Del Vecchio v. State, 246 AD2d 498;    

Fourth Dept.

Fourth Dept. 2011. Plaintiff, a security guard was injured when he responded to a call on his cell phone from Mr. Sistrunk, an employee who had fallen from extension ladder into a trench. According to plaintiff, who was the only other person at the site, Sistrunk begged him for help and told him to come right away. Plaintiff climbed down a stair tower to reach the trench floor and walked toward an excavator in the area where he though Sistrunk was at. While walking on trench floor, plaintiff sank deeply into the mud.  Plaintiff managed to pull himself out by gabbing onto the excavator, but was injured in the process.  Defendants contended Rescue Doctrine not apply as plaintiff could not have reasonably thought Sistrunk was in imminent peril when plaintiff descended into the trench. Although the Rescue Doctrine requires more than mere suspicion of danger, the reasonableness of plaintiff’s perception of danger and rescue efforts itself is generally issue of fact. Sistrunk’s sounded like he was in pain. Plaintiff further testified that he thought Sistrunk could be dying. Defendant failed to show plaintiff’s efforts at rescue were unreasonable. Hughes v. Murnane Bldg. Contrs., Inc., 89 AD3d 1507;

Fourth Dept. 1999. Plaintiff working on repaving a county highway when his foot was run over by his employer’s roller. Plaintiff testified he was distracted from roller as he was warning a pedestrian not to step into the path of the roller. Court concluded 23-1.33(b)(10(i), providing for protections of pedestrians on sidewalks adjacent tow work areas, was applicable. While that code is for protection of pedestrians rather than workers, issue of fact whether plaintiff may recover under “danger invites rescue” doctrine. Butler v. County of Chautauqua, 261 Ad2d 855;

March 23. New York. Labor Law 241(6). “Nondelegable Duty” of Owner; GC & Agent of Owner & GC.

Comment. Nondelegable duty means obligations of 241(6) cannot be transferred in a contract or otherwise assigned. If the entity is a premises owner; general contractor (GC) or a subcontractor that is an agent of an owner of GC because subcontractor supervised & controlled injury producing work, such entities are assessed 241(6) liability for an accident resulting from unsafe method of work or condition where a specific safety Industrial Code applies.

As 241(6) is a non-delegable duty, even where owners & GCs not supervise or control injury producing work or have no actual or constructive notice of a dangerous condition on a work site, such owners & GCs liable under 241(6).

Court of Appeals

Court of Appeals. 2010. Morton v. State of NY, 15 NY3d 50.

Court of Appeals. 1998. Rizzuto v. L.A. Wenger Constr. Co. 91 NY2d 343;

Court of Appeals. 1993. Comes v. NY State Electric and Gas Corp., 82 NY2d 876;

Court of Appeals. 1993. Ross v. Curtis-Palmer, 81 NY2d 494;

Court of Appeals. 1982. Long v. Forest-Fehlhaber, 55 NY2d 154;

Court of Appeals. 1978. Allen v. Cloutier Constr. Corp., 44 NY2d 290;

With Non-Delegable Duty, Owner/GC’s Lack of Notice of Dangerous Condition Invalid Defense for 241(6) Claim.

Comment. Owner, GC or agent of either, you cannot dismiss 2241(6) action by asserting it had no notice of dangerous site condition. Whether you had notice or not, not matter. It’s a nondelegable duty.

First Dept.

First Dept. 2021. Defendants’ assertion as to lack of notice is without merit. Since an owner or GC’s vicarious liability under Section 241(6) is not dependent upon its personal capability to prevent or cure a dangerous condition, absence of actual or constructive notice sufficient to prevent or cure must also be irrelevant to imposition of 241(6) liability. Gallina v. MTA Capital Constr. Co., 193 AD3d 414;

Second Dept.

Second Dept. 2023. 241(6) imposes a non-delegable duty upon owners and contractors to provide reasonable and adequate protection and safety to workers by complying with specific safety rules and regulations of 12 NYCRR of Industrial Code. 2024. Delaluz v. Walsh, 2024 NY Slip Op 03030;

2023. Tompkins v. Turner Constr. Co, 221 AD3d 745;

2022. Jarnutowski v. City of Long Beach, 210 AD3d 881;

2016.. Seales v. Trident Structural Corp., 142 A.D.3d 1153;

Second Dept. 2015. Labor Law 241(6) imposes a nondelegable duty of reasonable care upon owners and contractors to provide reasonable & adequate protection & safety to persons employed in, or lawfully frequenting all areas in which construction, excavation or demolition work is being performed. Perez v. 286 Scholes St. Corp., 134 AD3d 1085;

Second Dept. 2015. Since an owner or GC’s vicarious liability under 241(6) is not dependent on its personal capacity to prevent or cure a dangerous condition, absence of actual or constructive notice sufficient to prevent or cure must also be irrelevant to imposition of 241(1) liability. Reynoso v. Bovis Lend Lease LMB, Inc., 125 AD3d 740;

Second Dept. 2007. 241(6) imposes nondelegable duty upon owners & GCs to provide reasonable & adequate protection & safety to persons employed in construction, excavation, or demolition work, regardless of absence of control, supervision or direction of the work. Romero v. J&S Simcha, Inc., 39 AD3d 838;  

Labor Law 241(6) Nondelegable Duty. 2 Exceptions.

Comment. For almost all Industrial Codes, there is no requirement defendants have notice of dangerous condition of equipment used by workers.  241(6) states owners; GCs; and agents of owners & GCs have a nondelegable duty, meaning lack of notice of dangerous condition is not a defense.

Exceptions to this rule.

23-1.5(c)(3). Ensuring equipment is in a safe condition for worker use.

23-9.2(a). Poer-operated equipment must be maintained in good repair.

First Dept.

First Dept. 2022. 23-9.2(a) Not Dismissed. Plaintiff’s deposition testimony that pallet jack was not working raised issue of fact as to possible violation of 23-9.2(a). That defendants not have actual notice of the defect not absolve defendants of liability, as plaintiff testified he gave his employer notice.  While attempting to reverse a pallet jack, the pallet jack suddenly jumped back, causing plaintiff to fall. Nicholson v. Sabey Data Ctr. Props., LLC, 205 AD3d 620;  

First Dept. 2014. No Actual Notice of Unsafe Hydraulics Condition.  23-9.2 Not Violated.  While cleaning a concrete pump, with engine running, a swing tube in the pump swiveled, causing injury.  Plaintiff was inspecting a ring or groove in the tube for residual grout & claimed the hydraulics causing pipe to move reengaged on their own, despite the fact that he had turned them off. 23-9.2(a) not apply as defendants had no notice of unsafe condition of hydraulics reengaging after they were turned off.   Shields v. First Avenue Builders LLC., 118 AD3d 588;

Fourth Dept. Fourth Dept. 2020. 23-9.2(a). Issue of Fact Whether Notice Given. Plaintiff injured unloading a manlift from back of flatbed truck. To unload the lift, plaintiff climbed into lift’s basket, which extended from the body of the lift towards the front of the truck. Basket was one foot over the flatbed & flatbed was 3 feet off ground. As plaintiff tried to maneuver the lift, it unexpectedly rolled off back of flatbed to ground, causing the basket to come crashing down onto the flatbed. Court held issues of fact whether the lift was defective & if so, whether defendant had requisite notice of such defect.  Plaintiff testified the lift could not be unloaded from the truck by using the truck’s winch as the lift’s freewheeling mechanism was defective, & further testified he reported the defect to his employer.  However, another employee testified that he used the exact same lift approximately 100 times & had no mechanical issues. Shaw v. Scepter, 187 AD3d 1662;

March 22. New York. Not a “Falling Object.” Labor Law §240(1) Dismissed.

Properly functioning elevator.

Deliberately dropped object.

Falling hatchway door.

Backhoe bucket going into a trench.

Court of Appeals

Court of Appeals. 2001.  Fact that a worker was working at elevated height when the object fell is not determinative in a “falling object” case.  Working at elevation does not increase the risk of being hit by an improperly hoisted loads of materials from above. Hazard posed by working at elevated height is in absence of adequate safety devices, worker may suffer a fall. By contrast falling objects are associated with failure to use a different type of safety device  such as ropes or pulleys that are enumerated in the statute. Narducci v. Manhasset Bay Assoc., 750 NE2d 1085;

First Dept.

Elevator

First Dept. 2022. 240(1) Dismissed. Mechanic struck by elevator descending in normal manner. Elevator not “Falling Object.” Mechanic entered elevator shaft under an elevator that he had sent to one of the floors above. After shaft doors closed, the call button was pressed & elevator descended to lobby, crushing mechanic. No dispute elevator working normally. 240)1) dismissed as elevator not a “falling object.” Elevator not fall as result of gravity but descended in automatic mode, as it was designed to do. Luna v. Brodcom W. Dev. Co., 204 AD3d 609;  

Deliberately Dropped Objects. 240(1) Dismissed.

First Dept. 2017. Plaintiff struck by falling bricks while at work at construction site.  Issues of fact existed as to whether the bricks were deliberately dropped by demolition workers.  If deliberately dropped, the bricks were not “falling objects pursuant to 240(1). Torres v. Love Lane Mews, LLC, 156 AD3d 410;

First Dept. 2010.  As plywood plank striking plaintiff was deliberately dropped from a window it does not constitute a falling object. 240(1) dismissed. Solano v. City of NY, 77 AD3d 571;

Second Dept.

Closing Hatchway Door Not Constitute “Falling Object.”

Second Dept. 2004. 240(1) Dismissed. To gain access to boiler room, plaintiff crawled through open hatchway to a vault & there, descended a permanently-fixed ladder. As his shoulders were level with the hatchway opening, hatchway door closed on him, striking his head, causing him to fall 12 feet to ground. Hatchway door not falling object. Was general hazard of workplace, not one contemplated to be subject to 240(1). O’Donoghue v. NYC School Construction, 1 AD3d 333;

Third Dept.

Backhoe Bucket Not “Falling Object” Under 240(1)

Third Dept. 2013. 240(1) Dismissed. Backhoe Bucket not “Falling Object.” Usual & ordinary dangers of construction site. Plaintiff struck by backhoe bucket while working in a trench. Coworker making a T-connection to existing water main allowing new fire hydrant to be connected. After lowering T-connection into 9 foot trench, Manning exited backhoe to check on placement of T-connection. Manning then returned to backhoe, the bucket of which remained suspended 3.5 feet above plaintiff. However, bucket then descended into the trench crushing plaintiff. Plaintiff’s expert concluded accident occurred by Manning accidentally bumping backhoe’s joystick, causing the bucket to lower and hit plaintiff. As backhoe struck plaintiff not because of gravity but because of mechanical operation by a coworker, 240(1) claim dismissed. Here, no falling object, as harm not flow from application of force of gravity to an object, but from usual and ordinary dangers of construction site. Mohamed v. City of Watervliet, 106 AD3d 1244;

Falling Object Not Being Hoisted

Fourth Dept. 2013. 240(1) Dismissed. Seal located on top of loading dock door fell, striking plaintiff. When accident occurred, plaintiff & coworker testing a door lock they had just repaired. Door seal located above them not require securing for purposes of the work.  240(1) not apply as not a situation where hoisting or securing device of kind enumerated in 240(1) would have been necessary or even expected. Gaffney v. Norampac Indus., Inc., 109 AD3d 1210; 

Catwalk Not Being Hoisted

Fourth Dept. 2011. 240(1) Dismissed. Plaintiff & coworker tack-welded catwalk to building. However, workers noticed outside portion of catwalk slightly higher than inside portion. Coworker attempted to level catwalk by pushing down on it with a manlift while plaintiff, who was standing on lower catwalk, prepared to weld a support gusset underneath tack-welded catwalk. As a result of pressure exerted on catwalk by manlift, tack-weld on portion of catwalk closest to plaintiff broke & that side of catwalk fell, striking plaintiff in the head & pinning him between upper catwalk & handrail of lower catwalk. As catwalk not being hoisted or secured, 240(1) not apply. As such, plaintiff exposed to usual & ordinary dangers of construction site & not extraordinary elevation risks envisioned by 240(1). Timmons v. Barrett Paving Materials, Inc., 83 AD3d 1473;

Fall of Motor of Mechanical Door While Being Lifted. Fourth Dept. 2018. Plaintiff’s Motion to Dismiss 240(1) Denied. Fall of Motor of Mechanical Door While Being Lifted. Plaintiff & coworker lifting heavy motor 4-feet onto deck of scissor lift. When plaintiff repositioned his grip in order to get motor above his chest, he lost control of left side of motor. Plaintiff injured preventing motor from falling to floor. Plaintiff’s coworker testified he performed similar work 30-40 times before & had manually lifted motor onto a scissor lift each time. Conversely, the foreman, who was not on location, testified he had performed work on over 1000 such doors & never lifted a motor manually onto scissor lift. Court held plaintiff’s failed to meet burden that accident was direct consequence of failure to provide adequate protection against a risk arising from physically significant elevation differential. Smiley v. Allgaier Constr. Corp., 162 AD3d 1481; 

March 22. New York. Labor Law §240(1) Defense. Plaintiff’s Hand Inside of Crate Struck by Shifting Glass Panels Being Moved in a Crate. §240(1) Dismissed. Lateral Movement.

Santiago v. Genting NY LLC, 241 A.D.3d 1097, First Dept. Appellate decision issued on September 11, 2025. Plaintiff & coworkers used 2 dollies to move a crate of glass panels towards a hoist elevatoron ground floor of building under construction. As entrance to hoist elevator was not level to the ground, a ramp was used to span the gap, resulting in 1-inch lip where the ramp contacted the ground. To get the glass panels into the hoist elevator, workers were required to push the crate of glass panels across the metal ramp. As workers attempted to wheel the crate over the lip & into the hoist elevator, ramp wobbled, causing glass panels inside the crate to shift towards plaintiff, striking his right hand that was inside the crate.

§240(1) was dismissed as the accident did not “flow from the application of the force of gravity” but was instead the result of glass panels’ lateral movement inside the crate. Decision cited 2015 1^st Dept decision, Martinez v. 342 Property LLC, 128 AD3d 408, where §240(1) was dismissed when plaintiff was pinned against a column by an 8,000 piece of equipment being pushed by co-workers. Decision also cited Bucci v. City of NY, 223 AD3d 453, a 2024 1^st Dept. decision where a clamp & attached steel cable struck plaintiff when a moving truck “snagged a strung cable,” creating tension & built-up kinetic energy, causing the cable to snap, striking plaintiff’s arm & head in a “horizontal sling-shot fashion.”

Comment. §240(1)was properly dismissed as no falling object. Rather, glass panels shifted & it was during such shifting glass panels made contact with plaintiff’s arm. It was not a Wilinski v. 334 E. 92^nd Hous. Dev. Fund Corp., 18 NY3d 1 (2011), situation where a stationary object fell over & struck the plaintiff. Rather, glass panels shifted inside of a crate. Such shifting not result in any glass panels falling out of the crate.  Absent a falling object, §240(1) dismissed.  

March 21. Labor Law §240(1) Defense.  While Accident Tangentially Related to Effects of Gravity, Not Caused by Elevation Related Hazard. §240(1) Dismissed.

Comment. Where a worker falls down while working at elevated height, 240(1) claim is dismissed where the worker not fall off the elevated height to a lower level or to the ground. 240(1) also dismissed where dangerous condition at elevated height is not the condition requiring safety devices for such elevated work, such as a tripping condition.  “Accident resulted from a hazard wholly unrelated to risk which brought about need for stairs in first instance & was result of usual & ordinary dangers at construction site.”

240(1) Dismissed

Cable pulled plaintiff into a trench.

Worker injured hand while ascending scaffold.

Injured while lowering a bucket.

Although dielectric liner missing, plaintiff’s testimony was that such device designed to protect workers from electrical shocks, not falls.

Struck in the face by the handle of hand-operated hoisting mechanism as plaintiff raised a scaffold.

Plaintiff not fall off ladder when ladder struck by a compressor.

Nothing defective with stilts.

Stepping off ladder onto concealed object.

Injury occurred on elevated platform but not a fall from the platform.

Plaintiff suffered a seizure on scaffold but not fall from scaffold.

While working at elevated level, accident occurred on same level of plaintiff’s work area.

Court of Appeals

Court of Appeals. 1999.  240(1) Dismissed. Stepping Off Ladder on to Concealed Object. While stepping from bottom rung of ladder onto drop cloth covering the floor, plaintiff tripped over portable light underneath the cloth. Only his right foot remained on the ladder as his left foot hit the portable light, causing his ankle to twist. Ladder effective in preventing plaintiff from falling from a height. Plaintiff’s injury resulted from separate hazard unrelated to need for a ladder, i.e., concealed object on floor. Accident resulted from usual & ordinary dangers at construction site. Nieves v. Five Boro AC & Refrig. Corp., 93 NY2d 914;  

Court of Appeals. 1998. 240(1) Dismissed. Nothing Wrong With Stilts. Accident Caused by Debris. The stilts performed the function 240(1) required of them: allowing plaintiff to safely complete work at elevated height. Had the stilts failed plaintiff as he installed metal studs in the top of the drywall, 240(1)

may be implicated. Here, injury resulted from separate hazard, i.e., electrical conduit protruding from the floor. Melber v. 6333 Main St., Inc., 91 NY2d 759;

Court of Appeals. 1993. 240(1) Dismissed. Not Gravity Related Accident. Injury occurred while working on platform & no fall off the platform. Plaintiff assigned task of welding 30 inch seam near top of shaft 50 feet deep. Temporary platform placed over shaft to enable plaintiff to perform his work. To perform welding task, plaintiff had to sit in awkward position on platform’s edge. After being in this position for over 2 hours, plaintiff unable to straighten up & had to crawl off platform. 240(1) dismissed as not gravity related accident of falling from a height or struck by falling object improperly hoisted or inadequately secured. Ross v. Curtis-Palmer, 81 NY2d 494; 

First Dept. 2017. 240(1) Dismissed. Working on scaffold, plaintiff suffered a seizure. Plaintiff not fall from scaffold.Varona v. Brooks Shopping Ctrs. LLC, 151 AD3d 459;

Elbow Pinned at Elevated Height While Standing on Ladder

Second Dept. 2016. 240(1) Dismissed. Elbow pinned between a beam & wall at elevated height. While accident occurred while plaintiff standing on ladder, not gravity-related accident. Plaintiff, an ironworker, standing on ladder installing nuts & bolts into elevated steel beam. At this time, plaintiff’s foreman operating hi-lo forklift on ground & machine either struck or pushed elevated steel beam connected to steel beam that plaintiff was working with, causing steel beam to move & pin plaintiff’s left elbow against a concrete wall next to steel beam. Defendants established accident not involve gravity related or elevation-related hazard. Guallpa v. Canarsie Plaza, LLC, 144 AD3d 1088;

First Dept. 2011. 240(1) Dismissed. Accident Not Result of Elevated Height. Working as bricklayer foreman at work site of a hotel, plaintiff tripped & fell ascending temporary staircase from first floor to second floor of hotel. Temporary staircase between first & second floors constructed such that top tread wedged under concrete slab forming second floor. Plaintiff tripped on edge of slab, causing him to fall forward onto the floor. Accident not result of elevation related or gravity related risk. Accident resulted from a hazard wholly unrelated to risk which brought about need for stairs in first instance & was result of usual & ordinary dangers at construction site. That plaintiff fell while at elevated level not render accident a result of elevation related risk as accident occurred on same level of plaintiff’s work area. Reyes v. Magnetic Constr., Inc., 83 AD3d 512;

First Dept. 2008. 240(1) Dismissed. At time of accident, plaintiff completed his work painting archway of bridge. Hazard posed by hole in a sidewalk of bridge causing plaintiff to fall while exiting the bridge unrelated to risk requiring a need for safety devices when painting the bridge. As such, no 240(1) liability. Andrade v. Triborough Bridge & Tunnel Auth., 51 AD3d 517; 

Second Dept.

Second Dept. 2023. 240(1) Dismissed. Tripping over building fixture located on temporary staircase. Plaintiff attempting to descend temporary stairs leading from upper scaffold to lower scaffold, when he tripped over a rug-covered decorative metal building fixture located at top of stairs & fell in front of steps to lower scaffold. Rug-covered fixture protruded from & attached to building. Scaffold stairs lacked a handrail. Core objective of 240(1) in requiring protective devices for those working at heights is to allow them to complete work safely & prevent them from falling. Where accident results from separate hazard wholly unrelated to the risk which brought about the need for the safety device in the first instance, no Section 240(1) liability exists. No indication staircase not allow plaintiff to safely complete his work at a height. Rather, accident caused by separate hazard. Presence of rug-covered metal fixture located at top of stairs not the risk which brought about need for temporary staircase. Krarunzhiy v. 91 Cent. Park W. Owners Corp., 212 AD3d 722;

Second Dept. 2022. 240(1) Dismissed. Fall caused by spilled oil. Liability arises under 240(1) only where accident is direct consequence of elevated related hazard, not separate & ordinary tripping or slipping hazard. Plaintiff assigned to unload elevator components from truck. Plaintiff entered 30 foot long box truck & prepared to move a hydraulic jack weighing 1000 pounds. While engaged in such work, plaintiff slipped & fell. After accident, plaintiff noticed oil on his pants & on floor of truck. 240(1) dismissed as accident unrelated to elevation risk. Schutt v. Dynasty Transp. of Ohio, 203 AD3d 858; 

Second Dept. 2017. 240(1) Dismissed. Plaintiff, electrical foreman., assisting in installation of antenna atop 60-foot utility pole. He climbed into aerial bucket, which was attached to a boom on bucket truck & tried to raise the bucket. However, the lift function on truck malfunctioned & bucket would not move. At this time, plaintiff observed “dielectric liner,” which usually covers inside of bucket to protect workers from electrical shock, not in place. When plaintiff determined he would be unable to raise bucket, he began exiting bucket. As he did so, his foot became caught in part of bucket usually covered by dielectric liner, causing a fall. No evidence plaintiff instructed to exit bucket in different way in this instance. Although dielectric liner missing, plaintiff’s testimony was that such device designed to protect workers from electrical shocks, not falls. As such its absence not constitute 240(1) violation. Also, such work not involve construction, demolition or excavation. Robinson v. National Grid Energy Mgt., LLC, 150 AD3d 910;

Elbow Pinned at Elevated Height While Standing on Ladder

Second Dept. 2016. 240(1) Dismissed. Elbow pinned between a beam & wall at elevated height. While accident occurred while plaintiff standing on ladder, not gravity-related accident. Plaintiff, an ironworker, standing on ladder installing nuts & bolts into elevated steel beam. At this time, plaintiff’s foreman operating hi-lo forklift on ground & machine either struck or pushed elevated steel beam connected to steel beam that plaintiff was working with, causing steel beam to move & pin plaintiff’s left elbow against a concrete wall next to steel beam. Defendants established accident not involve gravity related or elevation-related hazard. Guallpa v. Canarsie Plaza, LLC, 144 AD3d 1088;

Hand Crushed Between Scaffold’s Motor Control & Steel of a Bridge

Second Dept. 2009. 240(1) Dismissed. Plaintiff while ascending Brooklyn tower of Kosciuszko Bridge on two-point suspension scaffold, injured when he stopped scaffold & hand crushed between motor control of scaffold & steel of bridge. 240(1) not encompass any & all perils that may be connected in some tangential way with effects of gravity. Rather, limited to such specific gravity-related accidents as falling from a height or being struck by falling object improperly hoisted or inadequately secured. Here, the accident, while tangentially related to effects of gravity, not caused by elevation related hazard. Gasques v. State of NY, 59 AD3d 666; affirmed by Court of Appeals at 15 NY3d 869 (2010).

Hand Injury From Bucket Being Lowered

Second Dept. 2005. 240(1) Dismissed.  Plaintiff suffered injury to his hand while assisting coworker lower bucket of construction debris & coworker suddenly released rope to which bucket attached. While injury to plaintiff’s hand tangentially related to effects of gravity upon which the bucket he was lowering, it was not caused by limited type of elevation related hazards encompassed by 240(1). Zdunczyk v. Ginther, 15 AD3d 574;

Force of Gravity Not The Reason Plaintiff Pulled Into Trench

Second Dept. 2016. 240(1) Dismissed. Fall Into Trench. Not Gravity Related Fall. Tangential Effect of Gravity. Plaintiff injured working at electrical substation in Queens. Plaintiff feeding cable into a trench that was 3 feet wide & 2 feet deep. Cable attached to pulling machine located about 800 feet from him, which controlled pace at which cable moved into the trench. As train approached station, plaintiff held up the cable above his head so train not hit the cable. Cable then suddenly accelerated forward, causing plaintiff to be pulled into trench. Accident not caused by elevation or gravity related hazards encompassed by 240(1). 240(1) not encompass any and all perils that may be connected in some tangential way with effects of gravity. Palumbo v. Transit Tech., LLC, 144 AD3d 773;

Fall Onto Roof Surface

Second Dept. 2008. 240(1) Dismissed. Fall on surface of roof not elevation-related risk.Plaintiff testified he slipped & fell onto surface of a roof while he was working on same roof. Not elevation-related risk. Scharff v. Sachem Cent. School Dist. at Holbrook, 53 AD3d 538;  

Fourth Dept.

Accident Occurring After Worker Stepped Off The Ladder. Fall Unrelated to Ladder.

Fourth Dept. 2013. 240(1) Dismissed. Plaintiff standing on ladder while vacuuming grain dust off top of  hose rack while working on construction project inside of silo. Plaintiff stepped off ladder & onto accumulated gain dust & hose hanging off the rack, causing a fall. Accident resulted from separate hazard wholly unrelated to danger that bought about need for ladder in first instance, an unnoticed or concealed object on floor. Smith v. Nestle Purina Petcare Co., 105 AD3d 1384; 

Fourth Dept. 2009. Defendant Raised Issue of Fact. Plaintiff tripped & fell onto scaffold upon which he was working. Raised issue of fact as such accident not related to effects of gravity & could have happened at ground level. Fact that plaintiff working above ground not automatically mean accident elevation related. DiPasquale v. MJ Ogiony Bldrs., Inc., 60 AD3d 1338;

Fall Onto Surface of Scaffold

Fourth Dept. 2009. Defendant Raised Issue of Fact. Plaintiff tripped & fell onto scaffold upon which he was working. Raised issue of fact as such accident not related to effects of gravity & could have happened at ground level. Fact that plaintiff working above ground not automatically mean accident elevation related. DiPasquale v. MJ Ogiony Bldrs., Inc., 60 AD3d 1338; 

Injury From Force Utilized in Raising Scaffold Fourth Dept. 2009. 240(1) Dismissed. Plaintiff attempting to raise a scaffold using hand-operated hoisting mechanism. While turning handle of hoisting mechanism, crank suddenly stopped, causing dislocation of shoulder. Plaintiff testified injury occurred when handle of hoisting mechanism ceased responding to his application of force. Mere fact that gravity acted upon the hoisting mechanism was insufficient to establish 240(1) claim as injury not result from elevation related risk. O’Donnell v. Buffalo-DS Assoc., LLC, 67 AD32d 1421;

March 21. New York. Contractual Indemnification For Premises Owner. General Contractor’s (GC) Contract With Subcontractor Required Subcontractor to Indemnify Premises Owner.   

Barreto v. Downtown NYC Owner, LLC, 2026 NY Slip Op 30927(U), decided March 1, 2016, Hon. Arelene Bluth, Supreme Court, NY County. Plaintiff working for Island Taping as a journeyman taper. Plaintiff fell when a wooden platform on which he was working tilted, causing him to fall 6 feet to the floor below.

Downtown, the premises owner, asserted that National entered into a contract with non-party Structure Tone, the GC, where it agreed to indemnify Downtown. Downtown argues that National subcontracted with plaintiff’s employer, Island Taping, and as such, plaintiff’s accident arose out of National’s work.

As premises owner, Downtown, seeking contractual obligation from National, was required to establish it was not actively negligent & was held liable under §240(1) only because it was the premises owner. No dispute plaintiff’s accident arose out of the work performed by National’s subcontractor, Island Taping and that National’s contract with the GC, Structure Tone, obligated it to hold the premises owner, i.e., Downtown, harmless for this type of accident. As such, National required to indemnify Downtown.

National, in turn, awarded contractual indemnification against plaintiff’s employer, Island Taping, as the indemnification agreement obligated Island Taping to indemnify National for injuries arising out of the performance of Island Taping’s work. Accident occurred as plaintiff performed work for Island Taping on top of a scaffold that was provided by Island Taping at the direction of Island Taping’s foreman.

Island Taping unsuccessfully argued it owed no indemnity to National because plaintiff claimed the accident arose from absence of safety devices required by Labor Law §240(1). Motion Court held such argument was not a “valid basis to deny contractual indemnification to National. Island Taping admits the indemnification clause provided Island Taping owed indemnity to National for “any injuries arising out of the performance of its work.”

Comment. Downtown, the premises owner, was awarded contractual indemnification from the subcontractor, National, because it required the project’s GC, Structure Tone, to include Downtown as a party to be indemnified in the contract Structure Tone entered into with National.       

March 20. New York. Labor Law §240(1) and §241(6) Dismissed in Helicopter Crash as Such Laws Preempted by Federal Aviation Laws.

Fabia v. Power Auth. of the State of NY, 2026 NY Slip Op 01489, decided March 18, 2026, Second Dept.

Plaintiff, a licensed pilot & employee of Catalyst, was a co-pilot of a helicopter owned by Catalyst, also carrying 2 linemen, employed by defendants Northline Utilities & Northline Ventures. As linemen were performing repair work from aerial platform of the airborne helicopter, the helicopter came into contact with the power lines, causing the helicopter to catch fire & crash. Plaintiff jumped from the helicopter, falling 75 feet, sustaining injury.

Under federal rules, the pilot in command of an aircraft is directly responsible for & is the final authority as to the operation of that aircraft. Various federal courts hold the pilot thereby has the sole responsibility to determine whether it is safe or unsafe to undertake a proposed flight. NY Labor Law provisions at issue, §200, §240(1) and §241(6), would place responsibility for these operations elsewhere. §200 codified the common-law duty imposed on owners, contractors & their agents to provide workers with a safe place to work. §240(1) and §241(6) impose nondelegable duties on the owners [and GCs) of construction sites.

As the federal rules place sole responsibility on a pilot for all flight operations, plaintiff’s actions alleging common law negligence & §200, §240(1) and §241(6), all conflict with the federal rules.

Also, under the federal rules, no person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another. Such rule is central to the FAA’s standard of care. Common law negligence requires a more stringent standard of care, i.e., “that of a reasonable person under the same or similar circumstances. §240(1) and §241(6) subject owners & contractors to absolute strict liability. As such, the standards of care underlying the 4 sources of liability alleged here, common law negligence, §200, §240(1) and §241(6), thereby conflict and as such, are preempted by the federal recklessness standard.

As §240(1) and §241(6) subject contractors & owners to absolute strict liability, such laws conflict with 14 CFR 91.3(a) & are preempted & as such are dismissed. However, the common law negligence and §200 were not dismissed as such causes remain viable by substituting the federal standard of care.

Second Dept. Acknowledges Its Decision is Contrary to Third Dept. holding in Scaletta v. Michels Power, Inc., 236 AD3d 1 (2025).

Plaintiff in Scaletta was a lineman who was working on aerial platform when the helicopter crashed. Here, the plaintiff was one of the pilots. Plaintiff’s claims in Scaletta was that he was working outside of the helicopter & a failure to provide adequate safety equipment. Here, plaintiff was inside the helicopter, piloting it when it came into contact with the power lines & the safety equipment plaintiff deemed inadequate for the work performed was the helicopter itself.

If a GC is liable for working conditions aboard an aircraft that its subcontractor is operating, the GC is incentivized & perhaps required to attend to those working conditions & direct changes when necessary. However, increasing a GC’s role in air safety alters & interferes with existing scheme of air safety regulation pursuant to 14 CFR 91.3(a).         

Also, a party contracting for the use of any aircraft to perform repair work would be subject to duties arising from NY law. Aircraft commonly cross state lines. If each state applied its own Labor Law provision to repair work performed with the use of any aircraft, then the entity contracting the aircraft to perform such repair work would need to comply with changing requirements whenever it crossed a state border.

March 20. New York. Labor Law §241(6). Industrial Code 23-1.7(b)(1)(i) Not Violated. As the Ground Around The Hole Collapsed, Safety Railing Would Not Have Prevented The Accident.

• Every hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed in compliance with this Code.

Losurdo v. Tutor Perini Corp., 2026 NY Slip Op 30888(U), decided March 9, 2026, Hon. James Clynes, Supreme Court, NY County. Plaintiff, an electrician, employed by an electrical subcontractor for a project in which Tutor Perini was the GC. Plaintiff was standing a few feet from a hole Tutor Perini had excavated in which two conduits were planted. While plaintiff was measuring wire to make an electrical connection, the ground surrounding the hole “gave way,” causing plaintiff to fall into the collapsed hole.

Plaintiff alleged a violation of Industrial Code §23-1.7(b)(1). The decision noted, “Since plaintiff has not shown that access to the conduits in the hole was unnecessary, nor does he claim defendants were required to cover the hole, plaintiff only claims defendants were required to construct & install a safety railing around the hole.”

The Court held, “As the hazard lay in the very ground that gave way around the hole, the court is at a loss to perceive how a railing around the hole would have protected the ground in which it was installed from sinking or collapsing, causing the railing to fall into the hole along with plaintiff.”

The decision held 23-1.7(b)(1) does not allow the court to read into such code a requirement that the railing be set back far enough from a hole to be a stable, secure ground.

Comment. Here, the decision held 23-1.7(b)(1) was not applicable because the ground around the hole collapsed. With a ground collapse, a safety railing would have offered no protection to the worker. A safety railing’s purpose is to shield a worker from stepping into a hole. But as the ground around the hole collapsed, a safety railing would have offered no protection as it would have not have prevented the ground from collapsing underneath it.

March 19. New York. Labor Law §240(1). Fall From Ladder Captured on Video. Appellate Court Assumes Role of a Jury in Pronouncing Its Interpretation of a Video.  

Serrano v. Athena Props. LLC, 2026 NY Slip Op 01621, decided March 19, 2026, First Dept. Plaintiff falls from a ladder while installing ductwork at defendants’ premises, claiming such ladder was not secured. Plaintiff’s deposition testimony & video footage of accident showed the ladder shifted & moved as plaintiff was descending the ladder. The decision cited the rule that a plaintiff is not required to demonstrate a ladder was defective to establish prima facie entitlement to summary judgment on the §240(1) action. That rule has no application in this case.

Opinion of defendants’ expert was the accident occurred because plaintiff lost her balance on a mispositioned ladder. The appellate court held the video contradicted the expert’s opinion of how the accident occurred. The video, according to the appellate court, showed plaintiff began descending the ladder after she had finished installing a screw, stored her drill & placed her hand on the top platform of the ladder. While the appellate court cites its interpretation of the video, it offers no reason why the opinion of defendants’ expert was incorrect of what was depicted in the video. Maybe the appellate court’s opinion of the video is correct as to what is depicted in the video. However, the right decision was to rule differing interpretations of the video raised issue of fact to be decided by a jury. Appellate court decision improperly enters jury realm in deciding which interpretation of a video is correct.       

March 19. New York. Labor Law §240(1). Falls/ Falling Objects From Flatbed Trucks.

Comment. If plaintiff merely falls off the bed of flatbed truck, 240(1) liability not imposed, as held by the Court of Appeals in Toeffer v. Long Is. RR, 4 NY3d 399. While recognized there is elevation differential between the bed of such trucks & ground, 240(1) not apply. However, if plaintiff falls from top of stack of materials on truck, 240(1) likely imposed.

Where a falling object on the flatbed truck strikes worker, causing worker to fall off the truck, 240(1) liability imposed.

240(1) liability also held where plaintiff lost his balance while lifting object while on flatbed truck, causing fall off the truck to ground below.

Dept. Disagreement. Fourth Dept. held that a fall when standing atop materials in flatbed truck not within protection of 240(1). First & Second Depts. disagreed, finding such a fall within 240(1) protection.

240(1) Liability Imposed

No place on truck to tie off safety harness.

Standing on truck’s collapsing lift gate.

Standing on beams on truck when beams caused to fall part.

Plaintiff pulled down from truck by falling materials.

Falling metal beam on truck.

Fall from truck when truck struck by another vehicle.

Fall from truck when hoisting materials swung towards plaintiff.

Struck at ground level from falling materials from truck.

Struck by crate of glass being offloaded from truck.

Ancillary vehicle activity.

240(1) Liability Imposed

First Dept.   

No Place to Tie Off on Truck

First Dept. 2023. 240(1) Liability Imposed. Plaintiff fell from top of scaffolding materials that were stacked on back of flatbed truck. Scaffolding materials were stacked on truck so that the top was 18 feet off ground. As plaintiff walked on such materials he tripped over a board, falling to sidewalk. Although plaintiff wore a safety harness, he was unable to tie it of on the back of the truck. 240(1) awarded as plaintiff fell from a height while performing activity covered by 240(1) & not provided proper safety device. That plaintiff’s fall precipitated by tripping on one of the boards on back of the truck, not remove case from 240(1). Agurto v. One Boerum Dev. Partners LLC, 221 AD3d 442;  

First Dept. 2017. 240(1) Liability Imposed. Plaintiff standing atop scaffold materials on flatbed truck & suffered a fall. While plaintiff wearing safety harness, there was no place on the flatbed bed to tie off his safety harness. Idona v. Manhattan Plaza, Inc., 147 AD3d 636; 

First Dept. 2012. 240(1) Liability Imposed. Plaintiff fell atop load of scaffolding material on flatbed truck. Plaintiff engaged in unloading materials. While plaintiff provided safety harness, no location for safety harness to be secured.  Phillip v. 525 E. 80^th St. Condominium, 93 AD3d 578;

Standing on Truck’s Collapsing Truck’s Lift Gate.

First Dept. 2022. 240(1) Liability Imposed. Plaintiff stood on lift gate of delivery truck in order to stabilize 400 pounds of elevator equipment as it was being lowered to ground. As lift gate descended, it collapsed, causing plaintiff to fall backwards into street. Plaintiff exposed to elevation related hazard  for which the device provided, lift gate of delivery truck, was inadequate. A 4-5 foot fall is not categorically excluded from 240(1) liability. Pimental v. DE Frgt. LLC, 205 AD3d 591;

Skids on Truck Bed Separated, Causing Beams Plaintiff Standing on to Break Apart.

First Dept. 2016. 240(1) Liability Imposed. Plaintiff caused to fall off flatbed truck while hoisting a beam. Plaintiff’s accident occurred while he was in process of preparing steel beams brought to site on flatbed truck to be lifted off truck by crane & then hoisted for installation. As plaintiff standing on beams for purpose of wrapping steel rope around a beam for it to be hoisted, piece of flat wooden skids separating beams broke, causing plaintiff to fall off the flatbed truck to ground below, a distance of 14 feet. Myiow v. City of NY, 143 AD3d 433;

Plaintiff Pulled Down From Truck to Ground by Falling Material

First Dept. 2021. 240(1) Liability Imposed. Plaintiff, working with coworkers, standing on the back of a flatbed truck, lifting 300 pound bundle of metal frames so it could be unloaded onto loading dock. Plaintiff standing atop bundle of frames on back of truck & as he was lifting such bundle, wooden dunnage securing the metal frames broke, causing such frames to bow in the middle & fall. Such bundle pulled plaintiff down as he attempted to hold onto it, causing a fall of 3 ½ feet to the loading dock floor, landing atop the bundle. Wooden dunnage meant to secure the bundle of frames proved inadequate to prevent it from falling. That plaintiff was pulled down rather than struck by the bundle was of no significance, as injury flowed directly from application of the force of gravity to the bundle. Medouze v. Plaza Constr. LLC, 199 AD3d 465;

Metal Beam Being Placed on Flatbed Truck Fell, Causing Plaintiff’s Fall From Truck

First Dept. 2016. 240(1) Liability Imposed. Plaintiff fell from flatbed truck. Metal beam being placed on flatbed truck fell from forklift blades, striking plaintiff, causing fall off truck.While metal beam being placed on flatbed truck, fell off the blades of a forklift, striking plaintiff’s foot, causing plaintiff to fall off the truck. Accident direct consequence of a failure to provide adequate protection against a risk arising from physically significant elevation differential and as such 240(1) imposed. Decisions relied upon by defendant not applicable her as they involve not objects falling on or toward workers on flatbeds but workers falling from flatbeds, implicating only adequacy of safety devices for falling workers, where was not at issue here. (Berg v. Albany Ladder Co., 10 NY3d 902; Toefer v. Long Is. RR, 4 NY3d 399; Brown v. NY-Presby. HealthCare Sys., Inc., 123 AD3d 612). McLean v. Tishman Constr. Corp., 144 AD3d 534;

Fall From Truck When Struck by Another Vehicle

First Dept. 2019. 240(1) Liability Imposed. Plaintiff fell to the ground when the lift truck upon which they were working moved when it was struck by passing vehicle. The lift truck, which was being used as elevated work platform, lacked a guardrail to prevent falls. South v. MTA, 176 AD3d 447; 

Improper Hoisting of Materials Caused Fall Off Truck

First Dept. 2018. 240(1) Imposed. Plaintiff fell off a flatbed truck after a load of steel beams, without tag lines, was hoisted above him by a crane & began to swing towards him. Risk of hoisted load of beams with no tag lines triggered protections of 240(1). Flores v. MTA, 164 AD3d 418;

Standing on Top of Bundles on Flatbed Truck 16 Feet Above Ground, Plaintiff Struck by Bundle Being Hoisted.

First Dept. 2012. 240(1) Liability Imposed. Load Improperly Secured. Plaintiff instructed to climb on top of the bundles of curtain wall panels & attach each bundle to crane & ensure bundles stayed apart while being hoisted to sidewalk bridge. Plaintiff knocked off bundles to ground by one of swinging bundles on crane. Plaintiff’s request for ladder was denied. Defendant liable for failing to provide secure method of hoisting bundles. 240(1) applied where plaintiff struck by falling object improperly hoisted or inadequately secured. Injury direct consequence of application of force of gravity to bundle being hoisted. Once bundle began its ascent, one of tag lines “got slack,” causing load to swing toward plaintiff. As such, hoist proved inadequate to shield plaintiff from harm. Naughton v. City of NY, 94 AD3d 1;

Struck on Ground Level by Falling Materials From Truck

First Dept. 2009. 240(1) Liability Imposed. Plaintiff struck by several pieces of lumber falling from flatbed truck at ground level while plaintiff unloading the lumber by hand. The lumber, stacked at heights above plaintiff’s head, was piled inches from the edge of the flatbed. Accident involved elevation related risk within 240(1) & defendants failed to provide proper protection . Fontaine v. Juniper Assoc., 67 AD3d 608;

Cinder Blocks Falling off Flatbed Truck

First Dept. 2007. 240(1) Liability Imposed. Plaintiff struck with load of cinder blocks that became loose as the loads being hoisted from flatbed truck by a fork broom & lowered onto a pallet near where he was standing. Load consisted of a cube of 96 blocks, secured by layers of shrinkwrap, weighing about 4,000 pounds. Elevation risk was within 240(1). Gonzalez v. Glenwood Mason Supply Co., Inc., 41 AD3d 338;

Struck by Crate of Glass Being Offloaded From Truck

First Dept. 2016. 240(1) Liability Imposed. Crate of glass tipped over on flatbed truck striking plaintiff.  Plaintiff injured when crate of glass he was preparing for offloading from the back of flatbed truck for window installation at Museum tipped over onto him, knocking him to the ground.  Preparing a 6 foot-tall crate weighing 1500 pounds for hoisting posed an elevation-related risk for plaintiff within meaning of 240(1).  Grant v. Solomon R. Guggenheim Museum, 139 AD3d 583;

240(1) Not Dismissed. Ancillary Vehicle Activity.

First Dept. 2023. 240(1) Not Dismissed. Climbing on vehicle roof while in process of removing equipment from site was ancillary activity within 240(1). Defendants failed to establish plaintiff’s activity in removing equipment from worksite & loading it onto roof of van was not performed as part of larger renovation project CDI was hired to complete on premises, including roofing & shingling work. Plaintiff’s act of removing equipment after it had been used by plaintiff & his CDI coworkers was an act “ancillary” to alteration of the structure of the property & protected under 240(1). Defendants offered no evidence establishing that climbing on roof of van was not necessary to the task of securing the equipment on vehicle roof & also failed to offer evidence a safety device enumerated in 240(1) would have prevented plaintiff’s fall. Defendants failed to establish 240(1) should be dismissed. However, plaintiff’s submissions showed existence of triable issue of fact whether fall resulted from lack of adequate safety device. Ramones v. 425 County Rd., LLC, 217 AD3d 977;  

Issue of Fact as to 240(1) Liability.

Plaintiff Struck by Cement Boards Falling Off a Truck.

First Dept. 2020. Issue of Fact. Stack of cement boards fell off truck, striking plaintiff, after wooden skids beneath boards broke. Potential causes for accident were Port Authority & Turner’s refusal to allow a street level hoist, rather than trucks, to be used for deliveries to sub-basement levels; improper loading of delivery truck; truck driver’s excessive speed driving truck down a ramp & whether workplace timing exigencies forced plaintiff’s hands in directing unloading of unsettled concrete boards. Issue of fact as to whether such conditions caused the accident. Valle v. Port Auth. of NY & NJ, 189 AD3d 594;    

First Dept. 2018. 240(1) Issue of Fact as to Sole Proximate Cause. Plaintiff fell off tractor trailer. Plaintiff attaching lifting lugs to wind turbine base tower so it could be hoisted off its trailer & onto concrete foundation. Enumerated activity under 240(1). Issue of fact whether plaintiff’s actions sole proximate cause of accident. Cross v. Noble Ellenburg Windpark, LLC, 157 AD3d 457;

Second Dept.

Gravity Related Accidents. 240(1) Liability Imposed.

Fall From Truck

Second Dept. 2014. 240(1) Liability Imposed. Plaintiff catapulted into air from force of gravity from rebar falling on truck. Amount of force generated over short descent. Plaintiff & coworkers unloading bundle of steel reinforcing bars, known as rebar, from flatbed truck. Rebar bundles weighed 8000-10,000 pounds each, 40 feet in length. Workers used crow bars to roll rebar bundles off of wooden 4 by 4 planks as they were positioned on truck. Distance from truck to ground was 5 feet. As one of rebar bundles began to fall from truck, shift in weight allegedly caused one of wooden planks to catapult plaintiff 15 feet into the air from bed of truck, where standing on plank. Plaintiff fell 20 feet to ground. Launch of plaintiff from truck along with wooden 4 by 4 plank upon which he was standing, flowed directly from application of force of gravity to rebar bundle. Elevation differential between flatbed truck & ground significant given 8000-10,000 pound weight of rebar, & amount of force rebar capable of generating, even over course of relatively short descent. Treile v. Brooklyn Tillary, LLC, 120 AD3d 1335;

Second Dept. 2007. 240(1) Liability Imposed. Falling from stack of materials on flatbed truck. Plaintiff unloading curtain wall panels, being installed onto facade of building, from stacks on platform of flatbed truck. Plaintiff had to attach straps to each individual panel so that each panel could be hoisted up from top of stack for installation. Plaintiff not given ladder to reach top of stack. To reach the top, he pulled himself up onto flatbed & climbed cross braces located at ends of each stack. Plaintiff slipped & fell to ground. Such accident constituted fall from a height. 240(1) violated as no safety devices provided. Ford v. HRH Constr. Corp., 41 AD3d 639; 

Struck by Falling Object From Truck

Second Dept. 2019. 240(1) Liability Imposed. Injury occurred unloading materials from truck & materials falling to ground. Plaintiff injured unloading flooring materials from back of truck. Hydraulic lift used to lower flooring materials in pallets, or skids, weighing 2500-3000 pounds, from bed of truck to ground, a distance of 4 feet. One of skids fell off the lift, striking plaintiff. 240(1) violated by failing to provide appropriate safety device to secure skid as it was being lowered to ground & such failure proximate cause of accident. Ramos-Perez v. Evelyn USA, LLC, 168 AD3d 1112;

Issue Fact as to 240(1) Liability Where Plaintiff Struck by Planks Falling Off Truck

Second Dept. 2008. Issue of Fact as to Whether Elevated Related Accident. Plaintiff working with coworker unloading stacked wooden planks from flatbed truck. Wooden planks located on top of stacks of plywood & top of truck load was 7 feet high. Planks longer than plywood & extended out & over base of plywood. Coworker, who stood on back of truck, angled planks down sliding them off truck to plaintiff as he worked on ground stacking them into a pile. As plaintiff was bent over, planks fell off truck, striking him. Although 240(1) generally does not apply when construction workers injured by material which falls as it is being loaded onto or unloaded from a truck, here, issues of fact where elevation related risk posed by position of planks when they struck plaintiff. Farrington v. Bovis Lend Lease LMB, Inc., 51 AD3d 624; 

Second Dept. 2008. Defendants Motion to Dismiss 240(1) Denied. Issue of Fact whether to use other enumerated safety devices. Plaintiff standing on flatbed truck attempting to unload a beam by a cherry picker. Such device too small. Then plaintiff & coworkers used a long piece of metal, or spike, as a lever to pry the beam off truck. As beam was being unloaded, it twisted striking plaintiff, knocking him off the truck. The beam then fell off the truck & struck plaintiff. Issue of fact whether defendants were obligated to substitute, in place of cherry picker & spike, other devices as those enumerated in 240(1). Francis v. Foremost Contr. Corp., 47 AD3d 672; 

Third Dept.

Third Dept. 2009. 240(1) Liability Imposed. Plaintiff fell 14 feet from materials stacked on flatbed truck. Elevation Accident. Plaintiff employed by roofing subcontractor assigned to assist in unloading bundles of insulation from flatbed trailer. To do this, plaintiff had to get on top of bundles & attach a strap around them to crane. As no ladder or scaffold provided, to get on top of bundles, which were 10 feet high & stacked on flatbed truck 4 four feet above ground, plaintiff climbed on spare tire attached between trailer & truck cab. Once atop spare tire, he grabbed top of shrink-wrapped bundle of insulation with both hands, pulled himself up as if doing a chin-up & swung his leg to the side to get his entire body on top of bundles. As he swung his leg to the side, his hands slipped & he fell. While falling from the bed of truck is not kind of elevation-related hazard contemplated by 240(1), 240(1) can be applied where risk-enhancing circumstances implicates protections of 240(1). As plaintiff hanging with his hands 14 feet above ground, it was elevation risk greater than merely falling from bed of trailer. As no safety devices provided, 240(1) violated. Intelisano v. Sam Greco Constr., Inc., 68 AD3d 1321;   

Fourth Dept.

Fall While in Lift Onto Flatbed Truck

Fourth Dept. 2020. 240(1) Liability Imposed. Fall In Lift Onto Flatbed Truck by Failing Lift. 240(1) Liability Imposed. Here, it was the falling lift causing plaintiff to fall onto flatbed truck.  As such, harm to plaintiff flowed directly from application of force of gravity. Shaw v. Scepter, Inc., 187 AD3d 1662;

Accident Caused by Falling Object

Fourth Dept. 2014. 240(1) Liability Imposed. Plaintiff fell from flatbed truck because of falling plywood.  Case distinguished from Toeffer.    Plaintiff delivering materials for a roofing project. Plaintiff unloading roofing supplies using a conveyor on flatbed truck. Accident occurred as plaintiff attempted to raise a 4 foot by 8 foot plywood sheet onto the roof. As plywood became unbalanced on conveyor & plaintiff attempted to steady it, plaintiff fell from the bed of flatbed truck five feet to ground below. Although flatbed trucks not present kind of elevation-related risk that 240(1) contemplates, accident in this case caused by a falling object, thus distinguishing the case from Toefer v. Long Is. RR, 4 NY3d 399.  As the plywood fell while being hoisted because of absence or inadequacy of safety device of the kind enumerated in 240(1), plaintiff entitled to summary judgment on 240(1) claim. Hyatt v. Young, 117 AD3d 1420;

240(1) Not Dismissed. Issue of Fact. Fourth Dept. 2015. Issue of Fact.  Decedent killed when dump box of dump truck lowered suddenly while he was unloading debris from demolition project, crushing him between the box & frame of the truck. Neither party entitled to summary judgment. Whether accident caused by lack of a safety device of kind required by the statute issue for trier of fact to determine. Matter of Mitchell v. NRG Energy, Inc., 125 AD3d 1542;  

March 18. New York. First Dept. Incorrectly Utilizes a §200 Analysis to a § 240(1) Case And General Contractor (GC) is Labeled a Statutory Agent.

Calle v. 686 Broadway Realty, LLC, 2026 NY Slip OP 01450, decided March 17, 2026, First Dept. Plaintiff, an employee of third-party defendant Branch Restoration, Inc., alleged that while performing asbestos abatement work on construction project, unsecured wooden plank moved, causing him to fall into a hole.

The decision stated, “Under the facts of this case, Schimenti [Construction Company], the general contractor at the construction site, is a proper Labor Law defendant. The record sufficiently establishes Schimenti’s status as a statutory agent for purposes of liability under Labor Law §§ 240(1) & 241(6), as it had supervisory control and authority over the work being done when the plaintiff was injured.”

The GC is not a “statutory agent.” A “statutory agent” is an entity retained by either the premises owner or the GC and is in control and supervision of the injury producing work. A GC, even if it had no “supervisory control and authority over the work being done,” is still liable under §§ 240(1) & 241(6). The GC has a non-delegable duty, meaning that even if the GC had nothing to do with the accident, it is still liable. The GC is liable under these statutes merely because it is the GC of the project. Just like the owner is also liable merely because it is the owner of the construction site.

The First Dept. continues the incorrect analysis as to §240. “Schimenti’s argument that it had no responsibility for the safety of the area cordoned off for asbestos abatement is not supported by the record. Schimenti’s superintendent testified that it prepared the area by covering holes, creating safety zones, and erecting barriers before Branch Restoration took charge of the area.” Such testimony of Schimenti’s superintendent has no bearing on whether Schimenti is liable under § 240(1). Schimenti, as the project’s GC is strictly liable under § 240(1) if plaintiff fell from an elevated height because of a lack of statutory enumerated safety protections. If plaintiff fell from an elevated height, Schimenti’s only defense is plaintiff’s actions or omissions were the sole proximate cause of the accident. The Court incorrectly applies a §200 analysis where plaintiff alleged he fell from an elevated height.

Comment. This decision warrants immediate retraction. Even if the decision reached the right conclusion, the analysis cannot be left to stand. This decision is a lack of understanding of the different analysis employed in §240(1) and § 241(6) causes of action and analysis utilized in a §200 cause of action.            

March 18. New York. §241(6). Worker Required to Walk Through Debris Strewn Area to Reach Work Materials. Area Constituted “Work Area.” 23-1.7(e)(2) Violation.

Lackenbauer v. 162 Fifth Ave. Assoc. LLC, 2026 NY Slip Op. 01463, decided March 17, 2026, First Dept.

Plaintiff testified it was impossible for him to access his work materials without entering an area containing a “messy pile” pf materials causing him to trip & fall. Court held that as plaintiff was required to traverse the area to access working materials, that area was considered a “working area” for the purposes of Industrial Code §23-1.7(e)(2). Decision cited Gonzales v. G. Fazio Constr. Co., Inc., 176 AD3d 610 (1^st Dept. 2019).

See other decisions below addressing issue of whether accident area was a “work area” as to 23-1.7(e)(2).

First Dept. 2019. 23.1.7(e)(2) Not Dismissed. As plaintiff required to navigate debris strewn area in order to perform his assigned task, it was part of “working area” within meaning of 23- 1.7(e)(2). Gonzalez v. G. Fazio Constr. Co., 176 AD3d 610;

First Dept. 2005. 23.1.7(e)(2) Violated. Plaintiff stepped on a nail near a pile of debris in a work area that had been allowed to accumulate for several days.Singh v. Young Manor, Inc., 23 AD3d 249;

Accident Area Was Work Area Even Where Plaintiff Not Performing Usual Duties

First Dept. 2017. 23-1.7(e)(2) Violated. Plaintiff tripped over metal studs on the floor inside of a room.   Although plaintiff not actually performing his job as a marble setter at time of accident, his activities brought him within 23-1.7(e)(2). Caminito v. Douglaston Dev., LLC, 146 AD3d 597;

Ramp Was Work Area

First Dept. 2017. Fitzgerald v. Marriott Int’l, Inc., 156 AD3d 458;

Workers Having to Traverse Open Area in Reaching Work Area

First Dept. 2006. Issue of Fact. Open area between building under construction & materials storage trailers was not a “passageway.” However, workers at the site routinely traversed this defined area as their only access to equipment and materials. Issue of fact whether such area was a “working area” under 23-1.7(e)(2). Smith v. Hines GS Properties, Inc., 29 AD3d 433;

First Dept. 2001. 23-1.7(e)(2) Violated. Plaintiff required to transport his own materials to job site & bay entrance was only way to enter building. Also, path from materials shed to the room in which he was assigned to work was a straight line. As such, area was open working area. Canning v. Barneys NY, 289 AD2d 32;

Courtyard Surrounded by Buildings Was Work Area

First Dept. 2004 23-1.7(e)(2) Violated. The courtyard, which was encircled by buildings, and had to be traversed by plaintiff to get to and from his work area, was not a passageway under 23-1.7(e)(1) but was a “working area” under 23-1.7(e)(2). Maza v. University Avenue Dev. Corp., 13 AD3d 65;

Staircase Was Work Area

First Dept. 2018. 23-1.7(e)(2) Not Dismissed. While installing sheetrock in stairwell, plaintiff tripped on extension cord & fell down stairs. Staircase serving as “working area” under 23-1.7(e)(2). Conlon v. Carnegie Hall Society, Inc., 159 AD3d 655;

50-Foot Concrete Slab Used For Bringing Materials to Tanks Was Work Area

First Dept. 2003. 23-1.7(e)(2) Not Dismissed. Although the 50-foot long concrete slab was regularly used to bring pipes to tanks, it remained a common, open area between job site & street & at best was a working area covered by 23-1.7(e)(2). Dalanna v, City of NY, 308 AD2d 400;

Second Dept.

Area Where Plywood Sheets Stacked

First Dept. 2022. Issue of Fact. While stacking plywood sheets at construction site, plywood sheet began to slide off the top of stack. As plaintiff stepped forward to stop plywood sheet from falling, he tripped & fell on debris & plywood sheet fell on top of him. Issue of fact whether accident area was “working area” under 23-1.7(e)(2). Moore v. URS Corp., 209 AD3d 438;

Walking Through Corridor to Area to Worker’s Area Where Performing Work

Second Dept. 2005. 23-1.7(e)(2) Not Dismissed. Plaintiff slipped on piece of cable while walking through a corridor to area where he was working. Issue of fact whether accident occurred in work area & thus whether 23-1.7(e)(1) applicable.  Boff v. AM Rizzo Electrical Contractors, Inc., 19 AD3d 348; 

Second Dept. 2001. 23-1.7(e)(2) Not Dismissed. Plaintiff, employee of alarm company, tripped & fell over a piece of cardboard on floor of room or passageway on first floor of a house. Issue of fact whether accident occurred in “work area.” Rosenberg v. Ben Krupinski General Contr., 284 AD2d 523;

Open Basement Area Was Work Area

Second Dept. 2021. 23-1.7(e)(2) Violated. Accident occurred in “work area.” Plaintiff’s fell in open basement area which was a work area under 23-1.7(e)(2). Gancarz v. Brooklyn Pier 1 Residential Owner, LP., 190 AD3d 955;  

Building Exterior Installing Windows

Second Dept. 2008. 23-1.7(e)(2) Violated. Injured while walking on building exterior to assist in window installation.  He tripped & fell over a brick in a pile of debris.Lane v. Fratello, 52 AD3d 575;

Defendant Failed to Show Accident Area at Marina Construction Site Not a “Working Area”

Second Dept. 2014. 23.1.7(e)(2) Not Dismissed.  Plaintiff working for GC at construction site marina owned by the Town. Plaintiff tripped over a “snake” line used by electrical contractor to pull wire through electrical conduit as he was trying to clear a path to drive his excavator into position to complete assigned task.  Town failed to show accident area not a “working area” within meaning of 23-1.7(e)(2). Baumann v. Town of Islip, 120 AD3d 603;

Doors

Second Dept. 2002. Issue of Fact Whether “Working Area.” GC hired to build a corridor in a building. A set ofheavy doors separated the corridor from an auditorium, where additional work was being performed. Workers used the double doors to gain access to both work sites. Door slammed shut on & plaintiff’s hand impaled on door’s broken pane of glass. Issue of fact whether accident occurred in work area. Kerins v. Vassar College, 293 AD2d 514;

Conflicting Deposition Testimony as to “Open Area.” Second Dept. 2022. Issue of Fact. Although plaintiff initially testified at his deposition that he was walking through an “open area” when he fell, he later explained he was walking in area between office units he & coworker were assembling. Raised triable issue of fact as whether code applied. Murphy v. 80 Pine, LLC, 208 AD3d 492;

March 17. New York.  No Additional Insured (AI) Coverage

Policy Rescinded. Named Insured Misrepresented Work It Was to Be Performing on Insurance Application.

Court of Appeals

Court of Appeals. 2012. Tower crane operated by Joy Contractors collapsed during construction of high rise condominium on East 51 Street, killing 7 people. Joy had excess insurance coverage from Admiral. Admiral claimed Joy had represented it specialized in drywall installation, did not carry out exterior work & performed no work at a level above 2 stories in height  from grade other than drywall interior work. Admiral asserted such inaccuracies in Joy’s underwriting submission voided the policy. Joy was actually the structural concrete contractor, performing work on building’s entire exterior with the tower crane.

Additional insured on Joy’s policy were Reliance Construction, the GC, tower crane’s lessor, NY Crane & Equipment Company & building owners/developers. Here, Admiral evaluated the risk of & collected a premium for, providing excess insurance for interior drywall installation, not the obviously much greater risk presented by exterior construction work with a tower crane at a height many times above grade.

As Admiral stated, the only AIs it could have contemplated would have been entities associated with projects on which Joy was performing interior drywall work and the risk associated with them would have been limited to liability caused by acts or omissions of Joy in performing drywall work. If the policy is not rescinded against all defendants except Joy it leaves the policy in place to be enforced by the other defendants even if the policy is rescinded. As such, other defendants, as AIs under the policy, would be permitted to rely on terms of a policy that might never be deemed to have existed. AIs, by definition, must exist in addition to something, namely, the named insureds in a valid existing policy. Admiral Ins. Co. v. Joy Contrs., Inc., 19 NY3d 448; 

Second Dept.

Second Dept. 2013. While plaintiff was performing work at work site owned by Garden of Eden Associates, he was cut by a saw. GC was Aleem Construction. Plaintiff brought action against Aleem & Garden of Eden. Aleem commenced third party action against. Liberty Contracting, plaintiff’s employer. Aleem also brought second third party action against Rutgers Casualty, the insurer of Liberty Contracting, claiming Rutgers was obligated to defend & indemnify it.  Rutgers established that its named insured, Liberty Contracting, made material misrepresentations in its application for the policy. Liberty represented in its application that it would perform no roofing work & perform no work at heights above 2 stories.

At the time of the accident, Liberty’s employes were performing work on roof 6 stories above the ground. Liberty performed similar work at prior projects during the policy year. Rutgers established such misrepresentations were material by demonstrating through its underwriting guidelines that had it been advised as to the type of work performed by Liberty, it would not have issued Liberty a policy. As Rutgers sought rescission & it has been determined such policy is void ab initio, Aleem cannot be a an AI as there was no valid existing policy. Meah v. A. Aleem Constr., Inc., 105 AD3d 1017;   

March 17. New York. Employers’ Exclusivity Defense Where Workers’ Compensation Benefits Provided

Comment. A worker injured in the course of employment cannot bring an action against such employer where the worker is provided workers’ compensation benefits from employer.  Such exclusivity can extend beyond plaintiff’s employer to entity that functioned as one company with plaintiff’s employer.  Such companies are considered alter egos of each other.

Where the complaint is dismissed against the plaintiff’s employer, the cross claims asserted against the employer become third party causes of action. As such, the exclusivity defense applies to the Complaint.

Exclusivity Defense Established

Submission of the decision of Workers’ Compensation board that defendant is plaintiff’s employer.

Payroll records, employment tax documents (including plaintiff’s W-2 form), reimbursement of purported employer for workers’ compensation premiums paid by property manager on plaintiff’s behalf & plaintiff’s receipt of work instructions from Gateway’s principal.

Plaintiff’s employer & defendant functioned as one company. In these circumstances, 2 or more companies function as joint venturers.

Exclusivity Defense Denied

Employer not provide WC insurance to worker.

None of property owner’s partners are officers of plaintiff’s corporate employer & the partnership & corporate employer are distinct legal entities.

Companies forming joint venture.

Court of Appeals

Court of Appeals. 2005. Where No WC Benefits Provided, Plaintiff Can Bring Legal Action Against Employer. Plaintiff fell when scaffold collapsed while plaintiff installing vinyl siding to two-story one-family house. Homeowners hired Dormer Giant as GC for project. Dormer Giant subcontracted siding work to Personal Touch, plaintiff’s employer. Dorner Giant brought third party action against plaintiff’s employer, Personal Touch. Section 11 of WCL, entitled “Alternative Remedy,” states, if employer fails to secure payment of compensation to injured employee, injured employee may opt to maintain an action in the courts for damages. Employers failing to secure workers’ compensation for employees are not holding up their end of bargain between business & labor under Section 11. Boles v. Dormer Giant, Inc., 4 NY3d 235;     

First Dept.

Companies Operating as Single Integrated Entity. Wholly Owned Subsidiaries. Worker’s Action Dismissed.

First Dept. 2020. Damages For Companies Forming Joint Venture Limited to WC Benefits. Plaintiff’s accident occurred while performing work on roof of nursing home. Plaintiff received WC benefits under a policy KFG Operating maintained for its employees. KFG Land & KFG Operating entered into lease agreement in which KFG Land was lessor & KFG Operating was lessee of nursing facility. Hopkins Ventures filed taxes on behalf of both KFG Land & KFG Operating under taxpayer identification number for Hopkins Ventures. KFG Land & KFG Operating are wholly owned subsidiaries of Hopkins Ventures. Exclusivity defense is available where relationship among business entities is so close that they are really alter egos of one another. Defense is available, however, in situations where plaintiff’s employer & defendant have functioned as one company. In these circumstances, 2 or more companies function as joint venturers. An employer’s organization into separate entities not preclude a finding plaintiff-employee is limited to benefits under Workers’ Compensation Law (WCL), because for statutory purposes, employee may have more than one employer. It is not necessary for an employer to be the direct, “paper” employer of worker for that employer to benefit from protection of WCL. Rather, many factors are weighed as to whether a special employment relationship exists. A general employee of one employee may also be in special employ of another, notwithstanding general employer’s responsibility for payment of wages & for maintaining workers’ compensation & other employee benefits. Interconnectivity of entities determines whether benefit of WCL should apply to entity not direct employer of worker. Here, since companies operated as single integrated entity, exclusivity rule of WCL applies to insulate KFG Land from liability. As such, employee’s exclusive remedy against entities forming the joint venture is workers’ compensation.  Fuller v. KFG Land, LLC, 189 AD3d 666; 

First Dept. 2016. Plaintiff was superintendent at Gateway’s building & suffered accident following a directive from Gateway’s principal to move elevator motor, weighing 600 pounds, which rested atop a dolly, from a freight elevator to street. Plaintiff injured when he lifted the dolly. WCL barred plaintiff’s action against Gateway. Evidence, including, Gateway’s payroll records, employment tax documents (including plaintiff’s W-2 form), Gateway’s reimbursement of purported employer for WC premiums paid by property manager on plaintiff’s behalf & plaintiff’s receipt of work instructions from Gateway’s principal combined to show employee/employer relationship between Gateway & plaintiff.   For purposes of plaintiff’s employment, Gateway & property manager functioned as one company in managing & paying plaintiff. Perez v. Gateway Realty LLC, 144 AD3d 571; 

First Dept. 2005. While working as handyman at defendant condominium, plaintiff fell from defective ladder supplied by Insignia, condo’s managing agent. As defendant condo was plaintiff’s employer at the time of the accident, claims against condo, its board, building superintendent dismissed. Cruz v. Board of Mgrs. of 140 W. End Ave. Condominium, 14 AD3d 432;  

Second Dept.

Second Dept. 2024. The determination of Workers’ Compensation Board is final & binding & a plaintiff may not maintain action against a defendant from whom he or she has accepted workers’ compensation benefits by arguing that he or she was actually employed by a different entity. Builders Joseph submitted the decision of the Workers’ Compensation Board, which conclusively established plaintiff’s causes of action insofar as asserted against it were barred by exclusivity provisions of the Workers’ Compensation Law.  Action dismissed against Builders Joseph. As the complaint was dismissed against Builders Jospeh, the court converted the cross claims asserted against Builders Joseph into third party causes of action. Olivera-Perez v. BAM Builders, Inc., 2024 NY Slip OP 03894;

Second Dept. 2018. Plaintiff injured when he fell through the roof of building while engaged in work.  Plaintiff testified he received Workers’ Compensation benefits.  WC Board determined plaintiff was employee of Atweek.  Action dismissed against Atweek. Paguay v. Cup of Tea, 165 AD3d 964;

Second Dept. 2017. Plaintiff hired to serve as maintenance worker at a camp. Plaintiff injured cutting & clearing a downed tree at the camp. Plaintiff brought action against Camp Rosmarin. WC Board awarded plaintiff compensation for injuries sustained & plaintiff testified he received such payments. Action dismissed against Camp Rosmarin as it was barred by exclusivity provision of Workers’ Compensation Law. WC benefits are exclusive remedy of employee against an employer for injury sustained in course of employment. Here, WC benefits plaintiff’s exclusive remedy against his employer the camp. Derosas v. Rosmarin Land Holdings, LLC, 148 AD3d 988;

Second Dept. 2015. Defendant presented evidence it was plaintiff’s employer at the time of accident & accident occurred during the course of plaintiff’s employment & plaintiff applied for, was awarded & received WC benefits under defendant’s WC policy. As such, defendant established summary judgment on the basis of exclusivity provisions of WCL barring plaintiff from seeking a recovery against it. Mateo v. 1875 Lexington LLC, 134 AD3d 1072;  

Second Dept. 2014. As Worker Accepted Workers’ Compensation Benefits, Worker Cannot Bring Action Against Employer. Where employer fails to secure workers’ compensation coverage, injured employer can simultaneously pursue both workers’ compensation benefits & personal injury action against her employer. Here, plaintiff accepted Workers’ Compensation benefits & conceded she received Workers’ Compensation benefits in sum of $100,096. This operated as election of remedies, warranting dismissal of Complaint insofar as asserted against her employer, the uninsured defendant Make Up Shop. Having accepted WC benefits, plaintiff is barred by finality & exclusivity provisions of WCL from bringing a separate common law action against her uninsured employer. Rueda v. Elmhurst Woodside, LLC, 116 AD3d 1027;

Second Dept. 2003. Pursuant to WCL Section 11 and 29(6), employer cannot be held liable in its capacity as landowner for injuries an employee sustains on the property. Here, however, none of property owner’s partners are officers of plaintiff’s corporate employer & the partnership & corporate employer are distinct legal entities. As such, no basis to dismiss action against defendants based upon exclusivity provisions of WCL. O’Connor v. Spencer (1997) Inv. Ltd. Partnership, 2 AD3d 513

Fourth Dept.Exception to Exclusivity Rule. There is narrow exception to that rule set forth in Billy v. Consolidated Mach. Tool Corp., 51 NY2d 152, which held employer who voluntarily assumes assets, obligations & liabilities of third party tortfeasor cannot avail itself of exclusivity provision of WCL Section 11. Here, as in Billy case, merger occurred before accident & surviving corporation employed decedent. Also, similar to Billy, plaintiff seeks damages from decedent’s employer, Alstom, on ground employer is ineligible for exclusivity provisions of WCL & liable to plaintiff because it independently assumed assets, obligations & liabilities of predecessor corporation, i.e., APCH, through a merger. Fact that Alstom happened to be decedent’s employer at time of accident is of no moment, as obligation giving rise to lawsuit is not employment relationship between Alstom & decedent but rather, controlling factor is independent business transaction between Alstom & APCH. Preston v. APCH, Inc., 89 AD3d 65;

March 16. New York. Court of Appeals Decisions Addressing 241(6) & Industrial Codes

Court of Appeals. 2003. 241(6) cause of action not applicable outside the construction; demolition or excavation contexts.  Esposito v. New York City Indus. Development Agency, 802 N.E.2d 1080;

Site Where Materials Being Prepared For Use at Construction Site. Within 241(6) Protection.

Court of Appeals. 2018. 241(6) Not Dismissed. Off-Site Area Where Work Being Performed. Defendants failed to show accident area was not a construction area as to 241(6).  Plaintiff tripped and fell on debris at work site. At the time of the accident, plaintiff working at a yard in the Bronx, where he was bending and cutting steel rebar to be used for the construction of a new building located in Manhattan. The only work to be performed at the Bronx site was in connection with the building site in Manhattan. 241(6) states, “all areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable & adequate protection & safety to persons employed therein or lawfully frequenting such places.” It was held the Bronx location constituted a construction area. Gerrish v. 56 Leonard LLC, 30 NY2d 1125;  

Injured During Highway Repaving Project Within 241(6) Protection.

Court of Appeals. 1992. State Highway Repaving Project Within 241(6) Protection. Plaintiff sustained accident while employed in State highway repaving project within protection of 241(6). Mosher v. State of NY, 80 NY2d 286; 

Safety Inspection Not Within 241(6) Protection.

Court of Appeals. 2002. Plaintiff standing on top of an elevator performing a 2-year safety inspection when he slipped on oil & fell. Plaintiff was making sure the elevators were operating properly. Industrial Code definition of “construction work,” which includes maintenance, must be construed consistently with this Court’s understanding that 241(6) covers industrial accidents occurring in context of construction, demolition and excavation. Here, the accident not occur in context of construction, demolition or excavation. Nagel v. D&R Realty Corp, 99 NY2d 98 (2002).

Fall Suffered While Fabricating Septic Tank. Not Within 241(6) Protection.

Court of Appeals 1992. Fall From Steel Mold. Plaintiff fell from upright steel mold he was preparing during customary occupational work of fabricating concrete septic tank. At time of accident, plaintiff not engaged in any construction or sewer project & not involved in renovation or alteration work at factory where he was working. Plaintiff’s work not involve erection, demolition, repairing, altering, painting, cleaning or pointing or construction or excavation work. As such, no protection under 240(1) & 241(6).  Jock v. Fine, 80 NY2d 965; 

Not Integral Condition of Work Being Performed. 23-1.7(d) Not Dismissed.

Court of Appeals. 2024. 1.7(d) Violated. Plaintiff employed as painter on project. There was unsecured plastic covering on escalator plaintiff was required to stand on to complete paint job. Plaintiff slipped & fell on escalator’s plastic covering. Job superintendent testified plastic covering was wrong type of covering for escalator steps. Plaintiff testified drop cloths available at the site. Superintendent testified drop cloths less slippery than plastic covering used. Plastic covering removed after accident. Plastic covering not part of escalator & plastic covering created slippery condition. Plastic covering not a component of escalator & not necessary to escalator’s functionality. As such, plastic covering was a substance foreign to escalator. It was just the opposite as escalator could not function if covered with plastic. Plastic covering placed on escalator not integral to the paint job because it made plaintiff’s work area slippery, creating one of the hazards that the cover was intended to avoid. It was not merely a poor choice but inherently dangerous choice. Defendant in position to avoid such danger as alternative coverings such as drop cloths & wood panels could have achieved goal of protecting worker. As such, defendants violated 23-1.7(d). Bazdaric v. Almah Partners LLC, 2024 NY Slip Op 00847;   

Court of Appeals.  2014. 23-2.2(a) applies to other than a completed form & may apply to a wall component.  Morris v. Pavarini Constr., 22 NY3d 668;

Court of Appeals. 2005. 23-6 Inapplicable. No hoist or crane was used on the job.Toefer v. Long Island RR, 4 NY3d 399;

Court of Appeals. 2007. 23-8.2(g)(2)(i) Not Dismissed. Issue of fact whether the subject crane was provided with a capacity chart setting for the safe loads that could be hoisted; whether the load plaintiff was attempting to lift at the time of the accident exceeded the maximum capacity specified by the crane’s capacity chart and whether such alleged violations were a proximate cause of plaintiff’s injuries.  Plaintiff was moving a steel plate from one pile of steel plates at ground level to another pile 10 feet away with use of boom crane affixed to the back of a flatbed truck owned by his employer.  At a point when the crane was extended 30 feet in the air, the boom suddenly broke off and fell on plaintiff. Jury found operation of the crane with an excess load, in violation of 23-8.2(g)(2)(ii), amounted to negligence, but that this was not proximate cause of plaintiff’s accident. Experts testified at trial the crane had a preexisting crack that made it unsafe to operate with any load. Jury’s finding that the collapse was caused by the defect tin the crane and not the size of the load, was supported by evidence.   Pavlou v. City of NY, 8 NY3d 961;

23-9.2(a) Sufficiently Specific to Support 241(6) Cause of Action

Court of Appeals

Court of Appeals. 2009.  Misicki v. Caradonna, 12 NY3d 511;. “Upon discovery, any structural defect or unsafe condition in such equipment shall be corrected by necessary repairs or replacement,” sufficiently specific to support 241(6) cause of action.

23-9.2(a) applies to a handheld 9-inch electrically driven angle grinder.

Court of Appeals. 2009. 23-9 applies to “power operated heavy equipment or machinery” such as excavating machines, pile drivers and motor trucks. Held that for purposes of the appeal, the Court assumes, without deciding, that 23-9.2(a) applies to a handheld 9-inch electrically driven angle grinder. Misicki v. Caradonna, 12 NY3d 511; 

Court of Appeals. 23-9 which applies to “power-operated heavy equipment or machinery used in construction,” extends to front-end loader being used to construct a drainage pipeline. A front-end loader is undeniably “power-operated heavy equipment.” 2011. St. Louis v. Town of N. Elba, 16 NY3d 411;

23-9.9(a) Not Specific Enough to Support 241(6) Cause of Action

Court of Appeals. 2022. Toussaint v. Port Auth. Of NY and NJ, 38 NY3d 89;

12 NYCRR 12-1.3 (f)

Defining “Confined Space” Included Having to Use a Ladder to Enter The Space. Court of Appeals. 2010. Limited Predicate for 241(6) Claim For Unventilated Work Areas. Issue was whether 241(6) may be predicated upon a violation contained in Part 12 of Industrial Code. Plaintiff worked as boilermaker for subcontractors on construction projects at various energy facilities, including Orange & Rockland Utilities. While engaged in such work, plaintiff exposed to asbestos through airborne dust & contact with asbestos-containing materials. He contracted mesothelioma. Part 12 regulations require prevention of air contamination. Section 12 not specify its rules apply to apply to owners, contractors & their agents. Absence of such wording suggests Part 12 not created to give effect to provisions of 241(6) & indicates intent not to impose vicarious liability as to Part 12 regulations. Also, 23-1.7(g) confirms that Part 12 regulations, by themselves were not intended to serve as predicate for liability under 241(6) liability. 1.7(g) makes any “unventilated confined area” where dangerous contaminants may be present subject to provisions of Part 12. By incorporating requirements of Part 12 into this narrow set of work sites governed by Part 23, unventilated confined areas, it is evident the intent was to impose a non-delegable duty on owners & contractors in these limited circumstances.  As such, plaintiff may bring 241(6) claim based on violation of Part 12 rule only where injury occurred in unventilated confined area., thereby triggering 23-1.7(g)’s pass through provision. Accepting plaintiff’s position that vicarious liability may be based on Part 12 violation without regardless of location of exposure renders 23-1.7(f) superfluous. Nostrom v. AW Chesterton Co., 15 NY3d 502;

March 15. New York. List of Defenses to Labor Law §241(6) Claim

Premises owner not contract for the injury producing work.

241(6) goes to whether safety equipment was properly assembled with code mandated materials. If plaintiff asserts 241(6) violation because a ladder or scaffold, etc. failed to be provided to a worker, 241(6) cause of action is dismissed.

Accident arose out of a condition integral to the work being performed. (Laborer slipped while removing snow from worksite, as one example).

To avoid dismissal of 241(6) plaintiff must assert an Industrial Code factually applicable and having a specific safety standard rather than a general safety standard. 

Not within class of persons protected under 241(6). Same as 240(1) defense, i.e., must be premises owner, GC and agent of owner/GC. If a subcontractor is not an agent of owner or GC, 241(6) dismissed.

Notice defense. Available only in Industrial Code 23-9.2 claim, as 241(6) has a non-delegable duty to owners and GCs and their agents.

241(6) action limited to construction, demolition or excavation work. Such scope of worker protection is less than 240(1).

Accident occurs away from the building site where materials are being prepared but not for immediate use, i.e., materials are being stored at some location beyond construction site.

Injured delivering materials to a vendor, not to construction site.

Injury occurring during safety inspection not within 241(6) protection.

Injury from routine maintenance not protected by 241(6).

23-1.7(b)(1)(i). Hazardous Openings.Opening has to be large enough for worker to fall all the way through to level below. Exception to Rule. Third Dept.

23-1.7(d) limited to slipping accidents. Tripping accident results in dismissal of 1.7(d).

23-1.7(d) not apply to “storm in progress” rule.

Accident not result from foreign substance. 23-1.7(d) dismissed.

No “hazardous opening” pursuant to 23-1.7(b)(1)(i). Depth held to be minimal.

Accident not occur in “passageway.” 23-1.7(d) dismissed.

Injury producing work was not “alteration” work to a building or structure.

March 15. New York. Labor Law §200 Liability Overview.

                Liability for accidents arising from the means & methods of injury producing work.

                Liability for accidents resulting from dangerous condition on a work site.

§200 obligates a premises owner, general contractor (GC) and subcontractor to provide workers engaged in construction, demolition, excavation and related work with safe conditions in performing such work. §200 liability requires a showing of a premises owner or contractor having actual or constructive notice of a dangerous work site condition. §200 liability also occurs where an owner or contractor has the authority to supervise and control injury producing work of subcontractors.

Unlike 240(1) owners & contractors are not subject to absolute liability under §200. Unlike 241(6), owners & GCs do not have a non-delegable duty under §200.

§200 liability for owner or GC requires a showing of active negligence, not vicarious liability from its ownership or contractor’s status. As with common law negligence, §200 not impose vicarious liability on owners & GCs.

§200 liability extends to subcontractors supervising & controlling injury producing work or creating a dangerous site condition.

Premises Owner. Typically, premises owner does not have authority to supervise & control subcontractor’s work methods. §200 liability for such owners stems from accidents resulting from dangerous conditions existing at the work site and whether an owner either created such condition or was made aware of such conditions, resulting in actual notice, or, dangerous condition existed for such a period of time before the accident, that there was constructive notice to the owner. When a dangerous site condition results from work methods of a subcontractor, absent actual notice of such method and ensuing dangerous condition, premises owner is not held in violation of §200.

General Contractor (GC). Whether GC violated §200 employs a similar analysis to premises owners, as GC usually does not supervise and control the work methods of subcontractors, other than having general supervision over the entire site. Such general supervision and work site inspection insufficient to impose §200 liability. Whether GC violated §200 is typically contingent upon whether GC was aware of a dangerous condition on the site.  GC is obligated by contract to make daily or more inspections of the entire worksite. Such obligation allows GC to find dangerous condition(s) on the site. Like premises owner, GC not liable under §200 where a subcontractor’s methods of word created a dangerous condition for workers, absent a GC’s supervision & control of the injury producing work.

Subcontractors. Usually, a worker’s accident arises out of the work being performed by its employer. Workers’ Compensation exclusivity bars workers from suing their employers. However, Workers Compensation does not bar a premises owner or GC from suing the employer in a third party action. Where a worker suffers an accident resulting a dangerous condition created or caused by another subcontractor, such subcontractor can be sued by the plaintiff, as Workers Compensation Exclusivity not apply to such a subcontractor.

Construction Manager (CM). CM is a subcontractor.               

§200 Connection to Indemnification. Owners, general contractors (GCs) and statutory agents moving for contractual or common law indemnification, must show liability is vicarious, meaning liability is found merely upon defendant’s status of owner of the work site or as the general contractor. Such defendants make such showing by dismissing §200 cause of action which requires a finding of active negligence causing an accident. Owning the building site or GC’s overall supervision of construction site, absent supervision of the injury producing work, requires dismissal of §200.

As dismissal of §200 documents lack of negligence by premises owner & GC, such entities are entitled to contractual and common law indemnification from the entity having control & supervision of injury producing work, which is usually, plaintiff’s employer. Such indemnification triggered where worker accident arises from performance of the subcontractor’s work or the accident resulted from subcontractor’s negligence.

March 14. New York. Contractual Indemnification Overview

In the context of construction accidents,premisesowners and GCs seek to have those subcontractors having control and supervision over injury producing work, pay for their defense costs in defending against plaintiff’s action and paying for a settlement or verdict against an owner or GC. That is indemnification and it is included in almost all written contracts/agreements between a GC and a subcontractor.

Because an owner and GC did not supervise or control the injury producing work of a subcontractor, their contract or agreement with such subcontractor obligates the subcontractor to indemnify them for such workplace accidents.  While the premises owner or GC is strictly liable under Labor Laws §240(1) or §241(6), merely from ownership and GC status, such entities are indemnified where they were not actively negligent as to the accident. Absence of active negligence likely yields contractual indemnification to the owner and GC.

The two usual types of contractual indemnification are where the subcontractor indemnifies the GC and premises owner for injuries arising from negligence of the subcontractor, or, plaintiff’s accident arises from the performance of the subcontractor’s work. If indemnification is premised upon arising out of subcontractor’s work, entity seeking indemnification need not establish subcontractor’s negligence in order to be indemnified. 

Where an owner and GC must establish the subcontractor was negligent and such negligence caused the accident, such a finding of negligence is usually determined by a jury at trial. If there is a finding of negligence, the Judge will then rule as to whether indemnification is warranted.  Owner/GC must also establish on such a motion it was not negligent as to plaintiff’s accident and therefore the Labor Law §200 claim, which obligates both an owner and GC to provide a safe working site, is dismissed.

If the §200 claim is not dismissed, owner/GC will not obtain indemnification on summary judgment as there is an issue of fact as to active negligence. In having the §200 action dismissed, the owner/GC establishes a prima facie case for summary judgment as to contractual indemnification. While negligence is usually not determined until trial by a jury, a court can issue “conditional indemnification” contingent upon there being a finding of no negligence at trial.

Indemnification clause may be premised upon where worker’s accident arises out of the performance of the subcontractor’s work. i.e., plaintiff was an employee of the subcontractor from whom indemnification is sought.  Under this standard, owner/GC not have to establish the subcontractor was negligent.  Rather, as long as the accident arose from the subcontractor’s scope of work under the contract with the GC, and owner/GC have the §200 claim dismissed against them by a court, the subcontractor’s indemnity obligation is likely triggered. 

As the “performance of the work” indemnity standard does not require owner/GC establishing the subcontractor’s negligence, which is usually not decided until trial by a jury, it is a less onerous burden for owners/GCs seeking indemnification. If plaintiff testifies at a deposition that the accident occurred while engaged in working for the subcontractor, the subcontractor is likely obligated to indemnify the owner/GC under the performance of the work standard.

Exception. As to the “scope of work” clause contained in contracts/agreements, if the subcontractor’s worker made a unilateral decision, unknown to the subcontractor, as to performing work to an area of the site that was beyond the subcontractor’s work, the subcontractor’s indemnification obligation may not be triggered.

Cannot be Indemnified For One’s Negligence. Public Policy

If indemnification clause language allows the owner/GC to be indemnified for its own negligence, such clause is void and unenforceable, according to New York’s General Obligations Law §5-322.1.

A covenant, promise, agreement or understanding in, or in connection with or collateral to a contract or agreement relative to the construction, alteration, repair or maintenance of a building, structure, appurtenances and appliances including moving, demolition and excavating connected therewith, purporting to indemnify or hold harmless the promisee against liability for damage arising out of bodily injury to persons or damage to property contributed to, caused by or resulting from the negligence of the promisee, its agents or employees, or indemnitee, whether such negligence be in whole or in part, is against public policy and is void and unenforceable …

If the indemnification clause contains the phrase that indemnification is subject “to the fullest extent of the law,” courts deem such language to be that the owner/GC cannot be indemnified for its own negligence and thus the clause can be enforced against a subcontractor. Most indemnification clauses contain such phrase.          

PARTIAL INDEMNIFICATION.  Exception to GOL §5-322.1 That Entity at Fault For Accident Cannot Obtain Indemnification.

If the entity that is seeking indemnification caused or contributed to the accident, along with others, the best that entity can do is possibly obtain partial indemnification. This occurs when both entities caused or contributed to the accident. It is essentially contribution where both entities pay their percentage of liability assessed against them.

Court of Appeals, in Brooks v. Judlau held a GC could seek partial indemnification from plaintiff’s employer.

2008. Action brought by ironworker against GC. Plaintiff, in course of work, grabbed onto safety cable installed by GC. Upon doing so, cable became loose causing plaintiff to fall 18 feet. GC asserted that also at fault was plaintiff’s employer because of its control of workplace & failing to provide its employee with requisite safety equipment to prevent his fall. To hold today that a partially negligent GC may never seek contractual indemnification for wrongful acts attributable to its subcontractor would leave GC liable for negligent actions of its subcontractor. Such outcome would be contrary to intent of GOL Section 5.322.1 that payment of damages be made according to fault. The language “to the fullest extent permitted by law” contemplates partial indemnification & is intended to limit contractual indemnity obligation solely to party’s own negligence. The holding that the phrase “to the fullest extent permitted by law” limits rather than expands promisor’s indemnity obligation is supported by other courts holding such phrase creates partial indemnification obligation on behalf of subcontractor promisor. No language in GOL 5-322.1 preventing partial indemnification provisions where both GC & its subcontractor are joint tortfeasors. Brooks v. Judlau Contr. Inc., 11 NY3d 204; In assessing a subcontractor’s indemnity obligation, start with whether the standard is negligence or performance of the work.

March 14. New York. Labor Law §240(1). While Affidavits Not Contradicted as to Falling Object Case, What Was Missing Conclusive Evidence Resulting in Denial of SJ Motion.   

Orellana v. 5541-1274 Fifth Ave. Manhattan LLC, 2026 NY Slip Op 30784(U), decided March 9, 2026, Hon. Lyle Frank, Supreme Court, NY County. Plaintiff, a bricklayer, employed by Touchstone Contracting, was working on scaffold when struck by falling cinderblock. Plaintiff working beneath elevator bulkhead above the rooftop where a tarp, placed atop the bulkhead, was secured with cinderblocks. It was alleged a gust of wind resulted in a cinderblock falling& striking plaintiff. LCD was brought into the action as third-party defendant by premises owners.

LCD moved for summary judgment asserting that because “no-one knows for sure what caused the cinderblock that struck plaintiff to fall,” all claims should be dismissed against LCD. As motion court noted, “LCD is arguing that because there are material questions of fact, it should be awarded summary judgment.”

However, it was held, “LCD not submit evidence proving conclusively that the cinderblock was not being used to secure a tarp covering their elevator work. Instead, LCD cited areas of confusion & conflicting testimony regarding the source of cinderblock & provided affidavits from its employees that such employees had not placed a cinderblock on the plastic sheeting.”

Motion Court held that while such evidence was sufficient to oppose a summary judgment motion, it did not establish a prima facie case for summary judgment. The decision noted a summary judgment motion in the case was previously denied as to questions of fact of LCD’s role in the accident.

Comment. Such decision provides LCD submitted affidavits from its employees stating such employees not place the cinderblock on the plastic sheeting. The decision cites no contradicting evidence as to the affidavits. The decision not state the affidavits were somehow conflicting or otherwise not credible. The decision not state what would constitute conclusive evidence in this instance as to LCD.

Where the decision states the tarp was covering LCD’s work, it will be assumed here the tarp belonged to LCD, although not stated in the decision. If the tarp was owned by LCD, LCD had obligation to ensure it was secured. The object securing the tarp, i.e., the cinderblock, was the falling object. Conclusive evidence would have been another subcontractor’s work caused the cinderblock to fall & LCD had no notice the work of the subcontractor risked dislodging the cinderblock.  

March 13. New York. Labor Law 240(1) Defense. Installation of Safety Device Contrary to Work Objectives.

Wilson v. JP Morgan Chase Bank NA, 2026 NY Slip Op 30783(U), decided Feb. 25, 2026, Hon. Verna Saunders, Supreme Court, NY County. Plaintiff instructed to assist crew of workers removing 100-pound pieces of drilling platform from 9-foot deep trench. When plaintiff first arrived at the trench area, the laborers were separating the wood & manually lifting & removing it out of the trench by hand. Workers would manually lift the piece of wood out of the trench & push them out. When asked if any part of the removed wood hung over the edge of the trench, plaintiff responded, “a few inches, if any.”

Plaintiff alleged defendants failed to install a toe board or similar safety equipment to prevent items from falling into the pit. Motion court rejected such assertion. “The primary objective was to extract the lumber from the pit. As such, plaintiff has failed to demonstrate that installation of a toe board along the trench edge would have been feasible or compatible with the task, or that such a device would have prevented the accident.” It was held plaintiff not establish a statutory safety device was required or that its absence caused the accident. Motion Court cited Court of Appeals decision, Salazar v. Novalex Contracting Corp., 18 NY 3d 134 (2011)., which is provided below, with other decisions addressing this issue.     

Comment. Anotherexample is where plaintiff fell into a hole in the floor at the work site. Such hole could not be covered with plywood because the hole was to be filled with concrete as part of the work being performed. Placing a protective cover over the hole would have defeated the work being performed.  As such, 240(1) action dismissed.

Court of Appeals.

Court of Appeals. 2011. Installation of a protective device would have been contrary to the objectives of the work plan in the basement. Salazar testified he was directed to pour & spread concrete over entire basement floor, a task that included filling the trenches. Put simply, it would be illogical to require owner or GC to place a protective cover, or otherwise barricade, a 3 or 4 foot deep hole when very goal of the work is to fill that hole with concrete. It would be impractical & contrary to the work at hand to cover the area where the concrete was being spread, since the settling of concrete requires the work of leveling be done with celerity. Salazar v. Novalex Constr. Corp., 18 NY3d 134;

First Dept.

First Dept. 2024. Rebar. Plaintiff failed to establish entitlement to summary judgment, as there was testimony supporting defendants’ contention that the laying of rebar, in which plaintiff was engaged, was to be followed by pouring of concrete, which would render placing plywood or wooden planks on top of that rebar impractical & contrary to the very work at hand to cover the area where the concrete was being spread. Marte v. Tishman Constr. Corp., 223 AD3d 527; 

First Dept. 2017. Elevator. Securing Device Would Have Defeated Purpose of Plaintiff’s Work. Plaintiff, Elevator mechanic, injured when elevator he was repairing suddenly dropped with him inside. Here, plaintiff was inside the elevator, riding up and down to test it. To the extent plaintiff may have been engaged in repair, within the meaning of 240(1), statute not apply, as any securing device would have defeated the purpose of the work, by precluding him from riding the elevator. Versace v. 1540 Broadway LP, 148 AD3d 483;

First Dept. 2017. No Evidence Securing Device Would Have Defeated Task of Removing Lighting Bar. Plaintiff was removing furniture from exhibition booth at conclusion of trade show when a lighting bar simultaneously being removed from the top of the booth by electricians fell, striking him in the head.  In view of the weight of the lighting bar, court could not conclude the distance it fell was de minimis.  Nor did defendants demonstrate that any securing device would have defeated the task of removing the lighting bar. Rutkowski v. NY Convention Ctr. Dev. Corp., 146 AD3d 686;

Second Dept.

Second Dept. 2013. Not Contrary to Objectives of Work Plan. Plaintiff, employee of superstructure contractor, injured while stripping wooden forms that served as frames into which concrete was poured to form the reinforced concrete columns of a building under construction.  Accident occurred after he had plied a piece of wooden form from the concrete column & placed it on the floor.  As he stood up, a separate piece of the form just above the piece he had removed, suddenly fell off the column. Striking him in the face.  There was triable issue of fact whether the falling piece of form was because of the absence or inadequacy of a safety device enumerated in 240(1).  Contrary to defendants’ assertion, the securing of pieces of form to the column would not have been contrary to the objectives of the work plan, as plaintiff testified the forms were cut into sections & that he was removing a different section than the one that fell on him. Ross v. DD 11^th Ave., LLC, 109 AD3d 604;

Fourth Dept.

Parsons v. County of Steuben, 2025 NY Slip Op 04359,  decided on July 25, 2025. Plaintiff & coworkers were cleaning up worksite at end of the day & such work included taking down ladders. 2 coworkers were taking down 40-foot extension ladder leaning against wooden telephone pole. One coworker untied the top & middle straps securing ladder to the pole as he descended the ladder. Other coworker then retracted ladder as other coworker held the ladder. Either first coworker holding the ladder, or the ladder itself, or both, slipped on ice, causing ladder to fall & strike plaintiff who was standing nearby.

Appellate Court held falling ladder did not require securing & that securing it would have been contrary to the objectives of the work plan. “It would be illogical to require plaintiff’s coworkers to secure to a pole a ladder that they were removing from that pole.” There was evidence the straps had to be removed in order to retract the ladder & that no protective devices could have been used to prevent ladder from falling as it was being taken down.

Expert. Decision held that although plaintiff’s expert accurately stated no mechanical means of securing the ladder to the pole were used at the time it fell, expert did not opine that any such means should have been used or could have been used as the ladder was taken down.

Comment. The Court agreed that while it was alleged the falling ladder was not secured, securing the ladder was “contrary to the objectives of the work plan.” In other words, the ladder had to be “un-secured” from the telephone pole in order for the worker on the ground to retract the ladder.  One issue not discussed was whether the worker on the ground retracting the ladder should have been standing on ice while engaged in such work.

March 13. New York. Labor Law §240(1) Dismissed. Contractor Left Site Before Plaintiff’s Accident. No Evidence Contractor’s Work Negligently Performed.

Comment. Subcontractors completing their work with a GC signing off on such work, and having no duty to maintain their work, have no liability under Labor Laws 240(1) & 241(6). 

First Dept.

First Dept. 2023. Contractor Completed Its Work 4 Months Before Plaintiff’s Accident. ZHL, as a prime contractor, can still be liable if it created the condition causing plaintiff’s accident.  ZHL made a prima facie showing it did not. Although ZHL conceded its work required use of conder blocks, it also demonstrated it left the job site 4 months prior to accident & no evidence connecting it to the specific block at issue.  Also, City’s construction manager testified he had been in mechanical room on regular basis during 4 months between ZHL leaving the site & he never observed a cinder block in middle of the room. Celentano v. City of NY, 212 AD3d 456; 

First Dept. 2013. Welsbach was subcontractor that installed temporary light pole & overhead cables at the work site. An excavating machine knocked into electrical cables, pulling down a light pole which struck plaintiff. 240(1) & 241(6) claims against Welsbach dismissed. Welsbach responsible for installation of the pole & electrical cable but not remain on the site after its installation & had no continuing duty to maintain it. Klewinoski v. City of NY, 103 AD3d 547;

First Dept. 2017. Issue of Fact whether Subcontractor on Site When Plaintiff’s Accident Occurred. While the testimony of construction safety manager that Petrocelli was working on the B-3 level at time of plaintiff’s accident may have been hearsay, he further testified Petrocelli remained on the job site around the time of plaintiff’s accident. Schaefer v. Tishman Constr. Corp., 153 AD3d 1169; 

First Dept. 2007. Contractor completed its job of excavating the trench the day before plaintiff’s accident & had neither control over the use of the trench, nor, as shown by its contract with Empire Erectors, responsibility for its maintenance.  Also, contractor not even at job site at time of accident.  Bell v. Bengomo Realty, Inc., 36 AD3d 479;

Second Dept.

Second Dept. 2018. 240(1) Dismissed. AM&G submitted affidavit from its chief financial officer asserting AM&G completed its work at subject premises & was off the site for at least 7 months before plaintiff’s accident.  Also, all of AM&G’s equipment was removed from the site months before the accident. Plaintiff fell from a ladder. Cusumano v. AM&G Waterproofing, LLC, 160 AD3d 922;

Second Dept. 2017. F&S Contracting established that it discontinued its work on the subject project on May 6, 2013, which was before the date of plaintiff’s accident. As F&S Contracting was not an owner, contractor, or agent involved in the project, it had no responsibility for procuring or supplying the allegedly defective boom lift involved in the accident & exercised no supervision or control over the plaintiff’s work.  While painting an elevated steel beam, plaintiff became pinned between the railing of the boom lift he was using & steel beam. As such F&S Contracting could not be held liable under any theory of liability of Sections 200, 240(1) & 241(6). Haidhaqi v. MTA, 153 AD3d 1328; 

Fourth Dept. Fourth Dept. 2014. 240(1) Dismissed.  Subcontractor left worksite before accident occurred. Foots v. Consolidated Bldg. Contrs., Inc., 119 AD3d 1324;

March 12. New York. Repair Work. 240(1) Liability Imposed. Plaintiff Engaged in Repairs, Not Maintenance. ER Records Not Rise Issue of Fact.

Fields v. Junius-Liberty Dev. LLC, 2026 NY Slip Op 01401, decided March 12, 2026, First Dept. Plaintiff testified that as he stood on unsecured ladder to do repair work at a construction site, the ladder gave way, causing a fall to the ground. Appellate Court held plaintiff’s deposition testimony, by itself, sufficient to establish §240(1) liability. Court held plaintiff not required to show ladder was defective to establish §240(1) liability, citing Daniello v. JT Magen & Co., Inc., 239 AD3d 516.

Appellate Court denied defendant’s argument that §240(1) not apply because plaintiff was engaged in mere routine maintenance when the accident occurred. Decision noted plaintiff’s work of repairing a ceiling leak involved cutting a hole in the ceiling with a sheet-rock knife & electric saw.  As such, it was held such work was not routine maintenance but repair work, allowing plaintiff protection of §240(1).

Defendant submitted uncertified emergency room records which showed the ladder was caused to shake after plaintiff touched a hot pipe. The decision held even if that happened, defendant failed to show the ladder was adequate safety device for the task. “In any event, even assuming that plaintiff negligently touched the pipe, comparative negligence is not a defense to §240(1).”

Comment. The holding here is the ladder was inadequate safety device because the ladder shook as a result of plaintiff touching a hot pipe. So when plaintiff moved in reaction to touching a hot pipe, it caused the ladder to shake. Whether it was foreseeable the pipe would be hot & plaintiff would touch the pipe while engaged in such work is not at issue when assessing whether §240(1) violated. For §240(1) violation, plaintiff merely had to testify the ladder shook, causing a fall from elevated height. 

With such a low bar for a §240(1) violation, it should be a requisite that plaintiff offer corroborating evidence that he was at least engaged in such work when the accident occurred when assessing the merits of a §240(1) motion. If no corroborating evidence, it should be deemed an issue of fact, requiring plaintiff to testify at trial as to how the accident occurred so his/her credibility can be assessed.

March 12. Indemnification Denied. Company Whose Involvement Was Limited to Supplying Workers to a Construction Site And Did Not Control The Work, Had No Indemnification Obligation.

Stewart v. JMDH Real Estate Offs., LLC, 2026 NY Slip Op 01418, decided March 12, 2026, First Dept. Worker tripped over raised Masonite board. Construction Resources Corp. (CRC) supplied union workers to the construction manager, to serve as paymaster to the union workers & to provide worker’s compensation insurance for them.

Even though one of the union workers served as the superintendent on the project, there was no showing CRC controlled the work of any of the union workers it supplied to the project. Such superintendent was not CRC’s special employee, nor was CRC in any other way engaged in the work.

March 12. New York. Contractual Indemnification. Entity’s Name Change After Execution of Subcontract Not Vitiate The Subcontract.

Espinosa v. Cape Church Assoc. LLC, 2026 NY Slip Op 30733(U), Hon. Judy Kim, Supreme Court, NY County. Plaintiff, an employee of Consigli & Associates was injured at a construction site. Cape Church was the premises owner & hired TG Nickel as the construction manager. T G Nickel retained AMA, plaintiff’s employer, to install glass & weld beams at the premises. Plaintiff struck by falling pipe as it was being hoisted. Plaintiff testified he only received orders at the site from Mr. Miranda, AMA’s foreman.

Performance of The Work Indemnity Standard. AMA was required under subcontract to indemnify Cape Church & construction manager (third-party plaintifs) for damages from an act of AMA occurring in, arising out of, or resulting from, the performance of its work. As the injury allegedly occurred while plaintiff was performing work on the project as AMA employe, injury arose from AMA’s performance under the subcontract.

Free of Negligence. Third party plaintiffs established free from negligence through deposition testimony that they did not control the manner & method of plaintiff’s work. Consigli’s general duty to supervise the work & ensure compliance with safety regulations not amount to supervision & control of the work site such that supervisory entity would be liable for the negligence of the contractor who performs the day to day operations. That Cape Church may have dispatched persons to observe work progress & method of the work not render it actively negligent. Name Change Not Impact Indemnification Obligation. Consigli’s corporate name change not render the subcontract unenforceable. AMA’s argument that a change in a corporation’s name vitiates all contracts executed under its prior name, has no foundation in law, citing Harmon v. Ivy Walk Inc., 48 AD3d 344 (1^st Dept. 2008).

March 11. New York. Damages. Defendant’s Motion to Dismiss Conscious Pain & Suffering Claim Denied. While Decedent Found Unresponsive, Such Finding Made 45-60 Seconds After Collision.

Greehy v. County of Suffolk, 2026 NY Slip Op 01343, decided March 11, 2026. It was alleged a stop sign was obstructed, causing the decedent, a motorcyclist, to fatally collide with motor vehicle. Plaintiffs asserted causes of action for wrongful death & conscious pain & suffering.

The rule is while a plaintiff bears the ultimate burden of proof at trial on the issue of conscious pain & suffering, on a motion for summary judgment defendant bears initial burden of showing the decedent not endure conscious pain & suffering. A cause of action to recover damages for conscious pain & suffering maty be predicated upon a claim of preimpact terror, in that decedent perceived grave injury or death prior to their death.

Defendant submitted deposition testimony of Mr. Hickey, who heard the collision & arrived at the accident scene approximately 45-60 seconds later.

Appellate Court held that Hickey’s testimony that decedent was unresponsive at the time he arrived, approximately 45-60 seconds after the impact, without more, was insufficient to establish, prima facie that the decedent did not consciously suffer in the moments preceding, during & in the 45-60 seconds immediately following the collision. As such, defendant’s motion to dismiss conscious pain & suffering action was denied.

Appellate Court cited Mazella v. Hauser, 142 AD3d 1055; Kevra v. Vladagin, 96 AD3d 805; Haque v. Daddazio, 84 AD3d 940.  

In determining damages for conscious pain & suffering experienced in the interval between injury and death, factors considered.

1. When the interval is relatively short between when the accident occurred & death, the degree of consciousness during such period of time;
2. severity of pain;
3. apprehension of impending death, along with duration.

Matter of 91^St. Crane Collapse Litig., 154 AD3d 139;

March 11. New York. Labor Law §241(6). Industrial Code 23-9.5(c) Violated. Delivery Driver To Site Struck by Excavator While Excavator Was in Operation.

23-9.5(c)

Excavating machines shall be operated only by designated persons. No person except the operating crew shall be permitted on an excavating machine while it is in motionor operation.  No person other than the pitman and excavating crew shall be permitted to stand within range of the back of a power shovel or within range of the swing of the dipper bucket while the shovel is in operation. When an excavating machine is not in use, the blade or dipper bucket shall rest on the ground or grade. The operator of an excavating machine shall not leave the controls of such machine at any time when the master clutch is engaged and the engine is operating. Oiling and greasing shall be performed only when an excavating machine is at rest and the master clutch disengaged. The boom or the bucket, dipper or clamshell of a power shovel shall not pass over the seat or cab of a truck or other vehicle while any person is in such seat or cab.

Figueroa v. Empire Sewer & Water Inc., 2026 NY Slip Op 01303, decided March 10, 2026, First Dept. Steinway, premises owner, hired contractor to replace sewer pipes in a street. Contractor ordered delivery of concrete from Corona Ready Mix. Plaintiff, Corona’s delivery driver, injured at work site after approaching excavator to ask operator to sign delivery receipt. Plaintiff instructed to stand back & wait. While walking away as directed, the excavator, moving in reverse, ran over plaintiff’s foot.

Plaintiff was protected under Labor Law §241(6) as he was making delivery of concrete to construction site during ongoing construction work. Citing Rodriguez v. Riverside Ctr. Site 5 Owner LLC, 240 AD3d 452 (1^st Dept. 2025); Serrano v. TED Gen. Contr., 157 AD3d 474 (1^st Dept. 2018).

Appellate Court affirmed motion court that Industrial Code 23-9.5(c) was violated. As the excavator ran over plaintiff’s foot, it indicated plaintiff was within range of excavator’s arm & bucket attachment. Such code also applied as excavator’s arm & bucket functioned as a power shovel with a dipper bucket, presenting the same danger posed by heavy equipment with a wide radius of movement. Held that excavator need not be actively excavating to be “in operation.”

Decision rejected premises owner’s contention that placement of traffic cones or tape along  worksite’s perimeter complied with 23-9.5(c). Plaintiff’s expert opined cones or tape were insufficient to exclude non-excavation workers from excavator’s proximity. Contractor’s flag worker & excavator operator, who was also the foreman, permitted plaintiff to approach the excavator. Flag worker had authority to stop plaintiff from entering excavator’s proximity.

Comment. Usual issues litigated for 23-9.5(c) arewhether plaintiff was a member of an operating crew; whether machine was “in use” at time of the accident; whether the person operating the excavator was a “designated person.”

Other appellate decisions interpreting 23-9.5(c) are below.     

Issue of Fact Whether Excavator “In Use” When Accident Occurred.

Mather v. HFZ KIK 30^th Street Owner LLC, 2025 NY Slip Op 06909, First Dept., decided December 11, 2025. Excavator pushed a dumpster into plaintiff, pinning him between another dumpster. Plaintiff asserted that before leaving the cab of the excavator, he notified excavator operator that he was going to retrieve the rigging to move the dumpsters, but such operator decided to move the dumpster immediately, after plaintiff left the cab, before plaintiff retrieved the rigging & while plaintiff was still in the range of the excavator. As such, the appellate court held issue of fact whether excavator was “not in use” when the accident occurred.   

23-9.5(c) Sufficiently Specific to Support 241(6) Cause of Action

Second Dept. 2015. Cunha v. Crossroads II, 131 AD3d 440;

Fourth Dept. 1996. Webber v. City of Dunkirk, 226 AD2d 1050;   

First Dept.

First Dept. 2016. 23-9.5(c) Dismissed. “Designated Person.” While working at job site, a Bobcat ran over plaintiff’s foot.  Evidence showed the Bobcat operator was “selected and directed” by his employer to operate the Bobcat & as such was a designated person within 23-9.5(c). Sawicki v. AGA 15^th St., LLC, 143 AD3d 549; 

First Dept. 2012. 23-9.5(c) Violated. Not Part of “Operating Crew.” Plaintiff fell while riding on exterior step of moving backhoe & backhoe ran over his foot. Plaintiff testified he was not licensed nor trained to operate a backhoe. Plaintiff’s foreman testified plaintiff’s responsibilities was excavation work. As such, plaintiff not part of the “operating crew” & as such, not authorized to be on the backhoe while it was in motion or operation. Scott v. Westmore Fuel Co., 96 AD3d 520;

Second Dept.

Second Dept. 2011. 23-9.5(c) Dismissed. Decedent was part of crew installing new pedestrian ramps.  He was fatally injured when pinned against a flatbed truck by backhoe’s outrigger. Decedent’s accident unrelated to “power shovel” or “dipper bucket.” Ferreira v. City of NY, 85 AD3d 1103;

Second Dept. 2007. 23-9.5(c) Dismissed. Plaintiff thrown against a dumpster when bucket of Bobcat struck temporary metal fence causing fence to strike plaintiff. Bourne v. Utopia, 39 AD3d 445;

Second Dept. 2005. 23-9.5(c) Not Apply as The Backhoe Striking Plaintiff Was “In Use.” 23-9.5(c) concerns the positioning of the bucket of a backhoe when the backhoe is not “in use.” Here, backhoe was being operated by plaintiff’s coworker to begin digging a trench & thus was “in use” at time of  accident.  Thus. 23-9.5(c) was factually inapplicable. Vicari v. Triangle Plaza II, LLC, 16 AD3d 672;

Not Dismissed

Second Dept. 2015. 23-9.5(c) Not Dismissed. “Designated Person.” Defendants presented no evidence loader operator was a “designated person” within 23-9.5(c) as no evidence the operator was “selected & directed” by his employer to operate the loader. While working at job site, excavator rolled over plaintiff’s legs. Plaintiff standing in between excavator & loader. The loader moved forward, causing plaintiff to jump backward where he was struck by the excavator. Cunha v. Crossroads II, 131 AD3d 440;

Third Dept.

Third Dept. 2013. 23-9.5(c) Not Dismissed. “In Use.” Issue of fact whether backhoe was “in use.” Plaintiff installing a connection to a water main so that a new fire hydrant could be connected. As plaintiff began tightening bolts to secure the pipe to the water main in a trench, backhoe operator exited the backhoe to check on the placement of connection. Bucket of backhoe was 3.5 feet above plaintiff & it descended into the trench striking plaintiff. Mohammed v. City of Watervliet, 106 AD3d 1244;

Fourth Dept.

Fourth Dept. 2001. 23-9.5(c) Dismissed. “Member of Crew.”  Task of cleaning the pipe was integral part of excavation operation & as such the task could be performed within range of the swing of the dipper bucket while the shovel was in operation. As such, plaintiff was a member of the excavating crew within 23-95(c). Mingle v. Barone Dev. Corp., 283 AD2d 1028;

Fourth Dept. 2015. 23-9.5(c) Violated. Plaintiff Not Part of “Excavating Crew.” Plaintiff Permitted to Stand Within Range of Excavating Machine While Machine Was in Use. Plaintiff contended 23-9.5(c) not violated as he was not part of excavating crew at time of accident & thus should not have been permitted to stand within range of excavation bucket, which struck him. Court concluded that although plaintiff & his supervisor were performing excavation work at time of accident, plaintiff was not part of any “excavation crew.” Plaintiff expected to perform subject excavation work alone, with no expectation his supervisor would be joining him & no awareness his supervisor had arrived & started operating the excavator. Plaintiff’s supervisor conceded plaintiff not see him get into excavator as plaintiff was looking down operating jackhammer while wearing earplugs. As plaintiff not part of any crew at time of accident, 23-9.5(c) violated as plaintiff permitted to stand within range of bucket when excavating machine was in use.  Vanderwall v. 1255 Portland Ave. LLC, 128 AD3d 1446;

Fourth Dept. 1996. 23-9.5(c) Not Dismissed. “In Use.” Court rejected contention excavating machine was “in use.” Excavating machine need not be stopped or parked for it to be “not in use.”  Such reading would render 23-9.5(f) superfluous. The machine was stationary while its operator waited for plaintiff & coworkers to rake blacktop. A jury could find that, in those circumstances, 23-9.5(c) requires bucket of the backhoe rest on the ground. Webber v. City of Dunkirk, 226 AD2d 1050;

Fourth Dept. 2010. 23-9.5(c) Not Dismissed. “In Use.” After backhoe operator removed a scoop of dirt from excavation site, plaintiff signaled to operator & told him he was going to sweep some dirt back into a hole.  Held that under defendant’s interpretation of 23-9.5(c), backhoe operator could avoid violation of  23-9.5(c) by keeping the bucket moving at all times. As such, operator could contend bucket was “in use” & therefore not have to be on the ground.  Court held 23-9.5(c) requires bucket rest on the ground.  Issue of fact whether backhoe was “in use” at time of accident. Benevento v. City of Buffalo, 74 AD3d 1738;

23-9.5(c) Claim Brought Under 23-4.2 Second Dept. 2015. 23-9.5(c) Claim Brought Under 23-4.2. A person authorized to be within the range of an excavator’s bucket & thus as a member of the “excavating crew,” cannot make a claim under 23-9.5(c), but can bring claim under 23-4.2. Torres v. City of NY, 127 AD3 1163;

March 10. New York. §240(1). Whether Construction Manager (CM) “Statutory Agent” of Owner For 240(1) Liability. Contract Obligations Controlled CM’s Work. Appellate Court Failed to Give Meaning to All Terms of The Agreement.

Veloso v. Scaturro Bros., Inc., 2026 NY Slip Op 01329, decided March 10, 2026, First Dept. There was no GC on the project & under the terms of a construction management agreement, Hunter Roberts authorized to generally supervise & direct subcontractors’ work. Such agreement also authorized Hunter Roberts to develop & enforce project safety plan to ensure subcontractors’ compliance with applicable laws, including those governing safety. Hunter Roberts had the power to stop work if unsafe practice observed. Court held such evidence “suggested” Hunter Roberts is susceptible to liability under §240(1) & §241(6).

Court also noted that another provision in the construction management agreement suggested that Hunter Roberts not responsible for overseeing the work of the lead paint contractor, plaintiff’s employer. Several witnesses testified Hunter Robert not licensed or certified to oversee lead abatement work. Evidence also showed Hunter Roberts precluded from accessing the containment area as the lead paint removal work was in progress.

Appellate Court held because of the “conflicting evidence.” issues of fact remain on whether Hunter Roberts was a proper defendant under the above Labor Laws.

Comment. The Court decision of “conflicting evidence” went to the provisions in the agreement as to Hunter Roberts having authority to supervise & direct subcontractors’ work & provision that Hunter Roberts was not responsible for overseeing the work of the lead paint contractor. Where is the “conflicting evidence?” While Hunter Roberts was authorized to oversee the work of subcontractors, the agreement was unambiguous that such authority not extend to a lead paint contractor. Limiting the authority to subcontractors other than a lead paint contractor did not raise an issue of fact. The decision offers no evidence Hunter Roberts controlled the work of the lead paint contractor.

Also, in interpreting a contract or written agreement, courts are obliged to interpret a contract so as to give meaning to all of its terms. American Intl. Specialty Lines Ins. Co. v. Kagor Realty Co, LLC, 125 AD3d 572 (1^st Dept. 2015). Here, meaning given to all terms of the agreement is only achieved by confining the authority of Hunter Roberts to control those subcontractors other than the lead paint subcontractor.   Here, one section of an agreement merely confined another section of the same agreement. As the language of the provisions not ambiguous, it is to be decided by a court, not a jury.

March 10. New York. Labor Law §240(1) Dismissed Where Plaintiff Fell 20 Feet Off a Ladder. Plaintiff Performing Recurring Routine Maintenance to Cooling Tower.  

Berkowitz v. City of  NY, 2026 NY Slip Op 30668(U). Hon. James Clynes, Supreme Court, NY County. Plaintiff employed by Chemical Specifics & US Water subcontracted Chemical Specifics to clean, inspect & repair a cooling tower owned by Gansevoort Market. Plaintiff’s duties were cleaning, repairing & inspecting cooling towers. To perform the cleaning plaintiff used his tools: pressure washer; gas can; gallon of gasoline; wet vacuum; extension cords; hoses & ropes. While engaged in such work, plaintiff fell from a ladder having no rubber feet.

“Cleaning” is an expressly enumerated activity under Labor Law §240(1) & applies to commercial cleaning which is not part of construction, demolition or repair work.

§240(1) protection not apply to routine cleaning. To constitute cleaning outside the sphere of commercial window washing, Court of Appeals held in Soto v. J Crew, Inc., 21 NY3d 562 (2013), that an activity cannot be characterized as “cleaning” under §240(1) if the task routine, in the sense that it is the type of job occurring on a daily, weekly or other relatively-frequent & recurring basis as part of ordinary maintenance & care of commercial premises; (2) requires neither specialized equipment or expertise; (3) generally involves insignificant elevation risks comparable to those inherent in typical household cleaning; & (4) is unrelated to any ongoing construction, renovation, painting, alteration or repair project.

Decision held plaintiff was not engaged in “cleaning” when the accident occurred. Although plaintiff’s cleaning work required specialized equipment such as a pressure washer, the cleaning was routine & unrelated to ongoing construction, renovation, painting, alteration or repair project. Such cleaning was performed on a recurring basis as part of ordinary maintenance. NYC Dept. of Health required cleaning of colling towers twice a year to prevent Legionnaire’s disease. Although such cleaning work involved an elevated-related risk of 20 feet, such work was not part of construction project.

Comment. Valuable defense to §240(1) claim. As provided above, where plaintiff injured while performing routine cleaning and maintenance, no protection under §240(1) for fall from elevated height. Even if no safety harness or other safety dev provided, §240(1) dismissed. 

March 9. New York. Labor Law §241(6). For Industrial Code 23-1.7(e)(2) to Apply, Accident Must Occur on Floor, Platform & Similar Areas.

Comment. 23-1.7(e)(2) applicable to accidents occurring on floors, platforms and similar areas. Lift gate of truck; open area at construction site; dirt pathway; building courtyard, blacktop pavement, all were held not to be a floor, platform or similar area.

First Dept.

“Platform” Not Used as Place to Walk Upon But Place to Store Materials

First Dept. 2007. 23-1.7(e)(2) Dismissed. “Working areas” inapplicable as 23-1.7(e)(2)’s reference to platforms, along with floors & similar areas where persons work or pass, is clearly the type of platform upon which one walks. By contrast, platform here was something on which a heating unit rested. Chuqui v. Church of Saint Margaret Mary, 39 AD3d 397; 

Second Dept.

Second Dept. 2024. 23-1.7(e)(2) Dismissed.  Construction worker slipped on construction debris or dust while descending a temporary staircase. 23-1.7(e)(2) dismissed as it applies to working areas, and staircase on which accident occurred was a “passageway,” not a working area at the time of the accident. Titov v. V&M Chelsea Prop., LLC, 2024 NY Slip Op 04221;  

Second Dept. 2000. 23-1.7(e)(2) Dismissed. Accident at open area construction site. Such area not a floor, platform or similar area covered by 23-1.7(e)(2). Rose v. A. Servidone, Inc., 268 AD2d 516; 

Third Dept.

Third Dept. 1998. 23-1.7(e)(1) Dismissed. Outdoor worn dirt pathway not a floor, platform, passageway or similar working surface. Gavigan v. Bunkoff General Contractors, Inc., 247 AD2d 750;

Third Dept. 1994. 23-1.7(e)(2) Dismissed. Accident occurred in a common area or open courtyard between various buildings under construction, As such, accident not occur on floor, platform, passageway or similar working surface. Stairs v. State Street Associates, 206 AD2d 817;

Fourth Dept. Fourth Dept. 1997. 23-1.7(e)(2) Dismissed. Accident occurred because of piece of gravel, rock or broken-up blacktop pavement as he was moving a 500 pound steel I-beam. Action dismissed as accident area not a floor, platform or similar area. Shandraw v. Tops Markets, Inc., 244 AD2d 997;

March 9. New York. Admissibility of Plaintiff’s Hospital Statements as to How Accident Occurred. Admissibility Contingent Upon Such Statements Being “Germane” to a Physician’s Diagnosis as to The Injury Sustained.

Pillco v. 160 Dikeman St. LLC, 245 AD3d 49, decided July 25, 2025, First Dept.

Decision noted that 70 years ago in Williams v. Alexander, 309 NY 283 (1955), Court of Appeals held that entries in hospital record may be admitted into evidence under the business records hearsay exception if such records are germane to diagnosis & treatment.

Here, plaintiff, a laborer employed by ATA Construction, was injured while working at a construction site removing sheetrock from a ceiling. Plaintiff testified 20-pound piece of sheetrock fell, striking plaintiff’s shoulder, causing the A-frame he was standing on to shake, causing a fall of the ladder with the ladder landing on him.

ATA submitted records from Precision Pain facility, claiming such records as to how the accident occurred.  Such records were certified by the custodian of records. Decision noted that hospital records “are trustworthy as they are designed to be relied upon in affairs of life and death and as they reflect the condition of a patient who has the clear motivation to report accurately.” With respect to medical records, the scope of the business duty of medical personnel is limited to recording information relating to diagnosis & treatment. As such, only entries in medical records that are admissible under the business records exception are those entries germane to diagnosis or treatment of the patient.

Issue was whether the Precision Plan medical provider who recorded the challenged statement recorded plaintiff’s statement in the regular course of business because the statement was germane to plaintiff’s medical diagnosis or treatment. Such provider saw plaintiff for the chief complaint of lower back pain & right shoulder pain & examining the shoulder & back & discussed options for treatment. Challenged statement in medical records was plaintiff was on a ladder, was picking up heavy sheetrock & felt a pull on his lower back & right shoulder. Such challenged statement in the hospital records not mention plaintiff fell off a ladder.     

Appellate Court decision held it was germane to the medical provider’s diagnosis & treatment  that plaintiff’s shoulder & back were injured as he was picking up a heavy object & felt a pull. Also, medical records indicated that how the accident occurred was relevant to medical diagnosis or treatment. Medical provider wrote in the medical records that the incident “patient described” was a competent medical cause of this injury” & “patient’s history of the injury” was consistent with his objective findings.”

Court held “injury & pain caused by a 7-foot fall from a ladder present different diagnostic & treatment concerns than injury & pain caused by lifting a heavy object & a  pull, especially absent any reference to plaintiff suffering a fall after that pull.”  Comment. For plaintiff’s statements in hospital records to be considered “germane,” look to how the accident happened and whether such accident impacted a hospital physician’s diagnosis of injury.

March 8. New York. Is “Integral to The Work” Defense to Industrial Codes 23-1.7(d); 1.7(e)(1) & (2), Confined to Materials, Equipment & Debris Used in Plaintiff’s Work or is Such Defense Also Applicable to Injury From Other Subcontractors’ Materials, Equipment & Debris?

When a worker slips or trips at a work site from materials, equipment or debris & such fall was not from elevated height, but rather at floor or ground level, injured worker may allege a Labor Law §241(6) cause of action, claiming New York State Industrial Codes 23-1.7(d); 23-1.7(e)(1) and/or (2) were violated. Such codes apply to tripping and slipping accidents at work sites.

When such an accident occurs from tripping or slipping on building materials, tools, or sometimes even debris, defendant may assert there was no violation of Industrial Codes as such material, equipment or even debris was required at such location because of ongoing work at the site. Such defense is called “integral to the work.”

However, where the worker trips or slips from objects being used by other subcontractors at a work site, is the “integral to the work” defense applicable or is such defense limited to the objects used only in the plaintiff’s work. In other words, if the plaintiff trips or slips, not from the objects he was working with but the objects of another subcontractor, is the integral to the work defense applicable?

Yes, according to the First Dept. Addressing this issue in 2020 in Krzyzanowski v. City of NY, 179 AD3d 479, it was held, integral to the work “defense applies to things and conditions that are an integral part of the construction, not just to the specific task a plaintiff may be performing at the time of the holding.” First Dept., in 2022, cited in the same rule Ruisech v. Structure Tone, Inc. 208 AD3d 412. As such, where a plaintiff is injured by equipment or materials of another subcontractor, “integral to the work” defense may apply.

March 7. New York. While Labor Law §241(6)’s Industrial Code 23-1.7(e)(2) Was Not Violated as The Dangerous Condition Was Integral to The Work, Common Law Negligence Could be Assessed For The Same Condition. Different Analysis.

Martinez v. 281 Broadway Holdings, LLC, 183 AD3d 712 (2^nd Dept. 2020). Pavarini was project GC and hired defendant SJ Electric to perform electrical work. Plaintiff was employed by a nonparty subcontractor to perform cement work & was injured when his foot became entangled in electrical wires hanging from the ceiling. Such electrical wires were imbedded in the ceiling by SJ Electric & were waiting to be attached to various light fixtures & receptacles.

As to its §241(6) action, plaintiff alleged Industrial Code 23-1.7(e)(2) which requires that the “parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of direct and debris  and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed.” As the Court noted, such Industrial Code is not violated where the material which plaintiff claims he tripped over was integral to the work being performed. Here, such code section was held not be violated as the electrical wires were integral to the electrician’s work.

However, SJE Electric not in the clear as plaintiff also alleged the SJ Electric was liable under common law negligence, claiming electrical wires were a dangerous condition. Common law negligence may be imposed on subcontractor where subcontractor had control over work site & either created alleged dangerous condition or had constructive notice. Decision held issue of fact whether SJ Electric created unreasonable risk of harm by leaving the wires dangling at the work site & whether such condition a proximate cause of the accident.

Comment. Here, analysis of Industrial Code violation went to issue of “integral to the work” while the claim of common law negligence went to the issue of notice. Different analysis, different outcomes. As very few Industrial Codes require notice to premises owner, GC or agent of those entities, analysis is different.         

March 7. New York. Labor Law §240(1) Imposed Without Depositions Being Conducted. Risk of Two Bites at The Apple.

Saquicela-Villa v. City of NY, 2026 NY Slip Op 01293, decided March 5, 2026, First Dept.

Plaintiff submitted evidence of falling from unstable scaffold having no guardrails, no anchoring points allowing him to tie off, no hoists to assist him & co-workers in handing down wooden slabs to different levels in the process of dismantling such scaffold. Defendants asserted a standing order was in place at the time of plaintiff’s accident requiring workers dismantling such scaffold of removing or “bending in” protruding nails from wooden slabs before handing down the slabs. Apparently, this policy was not followed, causing a protruding nail from a slab to “snag” plaintiff’s clothing, causing a fall from the scaffold.

The decision imposed §240(1) liability because plaintiff was not the sole proximate cause of the accident.  

However, defendants asserted plaintiff’s motion for summary judgment was premature because depositions of the parties had not yet been conducted. Apellate Court disagreed, citing the rule, “The mere hope that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny such a motion.” Guerrero v. Mila, 135 AD3d 635 (1^st Dept. 2016). The decision noted, “Defendants had opportunities to elicit testimony to support their defenses when they prepared affidavits for each of plaintiff’s coworkers.”

Comment. Courts hold that a plaintiff’s deposition testimony, that is not contradicted as to how a work site elevated fall occurred, is sufficient to establish a prima facie case for imposition of §240(1) liability. As a mere deposition transcript can result in summary judgment to plaintiff, surprising more motions are not brought prior to depositions. However, in moving for summary judgment prior to depositions of the parties, plaintiff is unaware of what evidence defendants possess in opposing such a motion. If plaintiff’s motion, brought before depositions, is denied, the motion court may deny plaintiff from bringing a second motion after depositions are completed, holding a party is not entitled to two bites at the apple. Certainly, a defense to be raised by defendants in such instance.  

March 7. New York. Inadmissible Hearsay Statements. Not Evidence. 

Comment. Hearsay statements because no evidence the person making the statement had personal knowledge of accident. 

Schiff v. Intersystem S&S Corp., 2026 NY Slip OP 01294, decided March 5, 2026, First Dept. It was held plaintiff’s post-accident statements to his domestic partner & to responding police office that he fell on Intersystem’s scaffolding on the sidewalk, not admissible under exceptions to the rule against hearsay as excited utterances or present sense impressions. This is because such statements were not contemporaneous with the incident, nor where such statements made while plaintiff was still under the stress of excitement after his fall.

However, the decision held the testimony of plaintiff’s domestic partner as to what an Intersystem told her after the accident, namely, that plaintiff had tripped over scaffolding materials that Intersystem left on the sidewalk, was admissible as an opposing-party statement, as the supervisor made the statement while working within the scope of his employment by Intersystem (CPLR 4549).  

Below are other decisions addressing alleged hearsay statements.

First Dept.

First Dept. 2023. Inadmissible Hearsay. Email sent to plaintiff’s employer from project manager constituted inadmissible hearsay as project manager not speak to plaintiff or hear conversation between plaintiff & site safety manager. Sanchez v. MC 19 E. Houston LLC, 216 AD3d 443; 

First Dept. 2018. Hearsay Exceptions Not Apply. Present sense impression inapplicable as out of court statement from plaintiff to foreman that he fell while climbing up scaffold not corroborated by independent evidence. Excited utterance exception not apply as defendants not provide sufficient evidence of plaintiff’s mental state or established he made hearsay statement to foreman under stress of excitement. Also, such statement to foreman not within declaration against interest exception as plaintiff was available to & did testify as a witness & no evidence plaintiff knew statement was adverse to his interests when it was made & supporting circumstances not attest to its trustworthiness or reliability. Gomes v. Pearson Capital Partners LLC, 159 AD3d 480; 

Second Dept.

Second Dept. 2018. Inadmissible Hearsay. While engaged in renovating third floor of a 3 story apartment building, plaintiff fell through roof to floor below. Plaintiff failed to show partial collapse of the roof & in turn, the need for safety devices, foreseeable. Plaintiff’s deposition testimony that he was told the roof collapsed because the beams on third floor ceiling had been cut constituted inadmissible hearsay. Paguay v. Cup of Tea, LLC, 165 AD3d 964; 

Second Dept. 2016. Inadmissible Hearsay. Plaintiff working as waterproofer on scaffold between second & third floors of building. Plaintiff stepped into a hole created by missing planks. A guardrail was also missing. Deposition testimony of superintendent, masonry foreman & amazon tender insufficient to raise issue of fact as to whether plaintiff’s conduct in allegedly removing a guardrail prior to the accident was sole proximate cause of the accident. None of these 3 individuals had personal knowledge of facts of accident, or condition of scaffold at time of accident. As such their testimony based upon inadmissible hearsay & of no probative value. Kupiec v. Morgan Contr. Corp., 137 AD3d 872;

Second Dept. 2013. While working on AC units located on roof, plaintiff fell from catwalk onto church’s roof. Plaintiff testified of having no recollection of accident & could only recall that just prior to accident he heard sound like wood giving way beneath him. Based on such testimony, jury would have to speculate as to cause of accident. Plaintiff’s inability to identify cause of fall is fatal to finding of defendant’s negligence, if any, proximately caused accident & be based on speculation. Coworker’s testimony of conversation he had with plaintiff at hospital following accident about what caused him to fall was vague and, in any event, was hearsay. Coworker’s testimony as to conversation with maintenance person employed by church about what plaintiff told him also hearsay. Antelope v. Saint Aidan’s Church, Inc., 110 AD3d 1020;

Second Dept. 2013. Inadmissible Hearsay. Plaintiff slipped & fell from top of dumpster improperly placed. Defendant ACA Waster Services supplied & placed the dumpster. ACA’s president, in affidavit, asserted that president of another subcontractor working on site, told him accident occurred when one of his employees climbed up onto the dumpster to pull out material that did not belong in that particular dumpster & his employee fell backwards out of dumpster. President also said there was nothing wrong with dumpster. Such statements inadmissible hearsay in the affidavit of ACA’s president as president had no personal knowledge of the facts of accident & was merely recounting what another person told him. Santos v. ACA Waste Servs., Inc., 103 AD3d 788;  

Second Dept. 2010. Inadmissible Hearsay. Decedent & coworker were stacking pieces of plywood debris on a 6^th floor balcony of building under construction when decedent lost balance, falling from balcony. Balcony not yet equipped with railing. Although barricades of some type were erected in front of openings to all of unguarded balconies, barricade in front of subject balcony was removed prior to the accident. Defendants offered no evidence that either the decedent, or his coworker removed the barricade from subject balcony. Although former project superintendent submitted affidavit that decedent & coworker removed the barricade, affidavit contained no indication he witnessed removal of barricade & set forth no factual basis for such conclusion. Statements attributed to decedent’s coworker in report prepared by a safety consultant inadmissible hearsay. Silvas v. Bridgeview Invs., LLC, 79 AD3d 727;

Third Dept.

Third Dept. 2009. Inadmissible Hearsay. Supervisor who signed the incident report, attributed the accident to the crane master’s clutch being “slightly out of adjustment & operator’s failure to stop before hitting plaintiff with the load. However, incident report does not claim such supervisor was present when accident occurred or even immediately before accident occurred. Basis of supervisor’s knowledge & representations is not revealed or inferable. Given supervisor’s failure to demonstrate he had personal knowledge of circumstances of this accident, incident report without evidentiary value. Jock v. Landmark Healthcare Facilities, LLC, 62 AD3d 1070;

Fourth Dept.

Fourth Dept. 2008. Inadmissible Hearsay.Plaintiff’s leg pinned between paving machine & roller machine in the course of laying blacktop. Foreman’s deposition testimony that driver of roller indicated that roller would not change gears inadmissible hearsay unsupported by other evidence. Plaintiff’s deposition testimony that there appeared to be something wrong with gear shift was self-serving & speculative. Mechanic who inspected the roller before it was rented to plaintiff’s employer not testify he found problems with roller’s hydraulic gear system nor indicate roller had mechanical deficiencies. No evidence suggesting malfunction of roller was proximate cause of accident. Plaintiff was experienced blacktop raker who failed to get out of the way of roller. Robinson v. Barone, 48 AD3d 1179;

Fourth Dept. 2007. Inadmissible Hearsay. Although defendants submitted affidavit & report from one of Kleen All employees & report from another employee, such employees had no firsthand knowledge of incident & hearsay generally may not be considered in opposition to motion for summary judgment. Such reports not fall within business records exception to hearsay rule of CPLR 4518(a) as there is no indication the employees writing such reports had actual knowledge of the events recorded or that they received the information from someone having actual knowledge & was under a business duty to report the event to the person writing the report. Capasso v. Kleen All of Am., Inc., 43 AD3d 1346;  Fourth Dept. 2004.

Plaintiff fell from a ladder while repairing HVAC unit. Deposition testimony of Triton’s general manager that he believed plaintiff was performing quarterly maintenance pursuant an agreement between Triton & Jonmark insufficient to raise issue of fact. General manager admitted of having no personal knowledge of the circumstances of the accident, and as such, his testimony constituted speculation based on hearsay. Bruce v. Fashion Square Associates, 8 AD3d 1053; 

March 7. New York. Ladder. 240(1) Liability Imposed. Decision is Wrong. Only Logical Conclusion is The Ladder Fell Over Because 2 Workers Were Standing on The Ladder at Same Time. Ladder Misuse.

Zukowski v. NYCHA, 2026 NY Slip Op 30649(U), decided Feb. 18, 2026, Supreme Court, Kings County, Hon. Lisa Otley. While performing demolition work in the boiler room of the building located at 330 Wilson Avenue in Brooklyn, plaintiff fell from 8-foot A-frame ladder. Co-worker called out to plaintiff to assist him because a light fixture had fallen. Co-worker was on the second to last rung of the ladder.  To assist him, plaintiff climbed up the same ladder as the co-worker was on in order to pass to co-worker a plastic strap to secure the light fixture. As plaintiff reached the fifth rung of the ladder and the co-worker bent down to grab the plastic strap, the ladder rocked causing plaintiff, the co-worker & the ladder to fall.

Plaintiff asserted such ladder was an inadequate safety device as it shook. Plaintiff’s safety expert, Anthony Corrado opined such A-frame ladder was an inadequate safety device for the demolition work plaintiff was performing & a proper safety device would have been a baker scaffold or “narrow frame scaffolding.” Plaintiff also asserted the ladder was not properly secured or braced “as the evidence demonstrates the ladder suddenly moved & toppled over from its standing position.” Motion Court held §240(1) violated.

Comment. A fair interpretation of the facts cited in the decision is everything was all good until plaintiff climbed up the same ladder the co-worker was standing on. Up to that point, the decision offers no indication the A-frame ladder was “rocking.” Before plaintiff started climbing up the same ladder, there was no indication such ladder was an “inadequate safety device.” Up until plaintiff began climbing the ladder, there is no indication a scaffold was required for the co-worker to safely perform his work. There is no indication the co-worker or any supervisors were of the opinion such A-frame ladder was an “inadequate safety device” prior to the accident.

But something happened, causing the A-framer ladder to “topple over.” Did the ladder somehow suddenly break? No. Was the ladder found to be defective? No. Had anyone instructed the co-worker not to use the A-frame for such demolition work? No.

The ladder only began “rocking” when plaintiff started climbing the same ladder his co-worker was standing on.  2 workers on the same A-frame ladder. The ladder was not an inadequate safety device. It was plaintiff’s misuse of the ladder that caused it to “topple over.” It is hard to fathom the 6-page single spaced decision here never even considers that two workers on the same ladder may have caused the rocking of the ladder.

While courts strive to impose 240(1) for a gravity related fall, obvious misuse of a ladder cannot be ignored.  Sole proximate cause of the accident was not because the ladder was an inadequate safety device. Obviously, the ladder fell only because 2 workers were on the ladder, i.e., an obvious misuse of the ladder by plaintiff.     

March 6. New York. Indemnification. Although Entity Not Identified by Name in Indemnification Clause Still Entitled to Indemnification.

Schiff v. Intersystem S&S Corp., 2026 NY Slip Op 01294, decided March 5, 2026, First Dept. Arose out of fall from scaffolding materials left on a sidewalk. Apple Bank brought cross claim against Intersystem for breach of contract for failing to name Apple Bank on Intersystem’s liability policy as an additional insured. Appellate Court held Apple Bank entitled to summary judgment. Apple Bank submitted the contract requiring Intersystem to name “the Customer” as additional insured.

Although such contract not define contract term “the Customer,” documentary & testimonial evidence that Apple Bank submitted, including deposition testimony of Intersystem’s principal indicating “the Customer” referred to Apple Bank, established Apple Bank was “the Customer” within the meaning of the contract. As Intersystem submitted no insurance policy naming Apple Bank as an additional insured, Intersystem failed to raise an issue of fact.        

Comment. Entity does not have to be listed by name as entity to be indemnified in indemnification clause.  Rather, it can be described in the indemnification clause as owner or GC or some other designation.

Entity Not Indemnified by Subcontract

Subcontract indemnified “owner’s agent” not “owner.”

Premises owner’s agent named as indemnitee.

Construction manager not named as indemnitee in contract.

Premises owner not named as indemnitee in contract.

Issue of fact whether an indemnitee based upon prior contracts.

No Indemnification Obligation. Construction Manager Not Referred to in Contract as Owner’s “Agent.”

Court of Appeals

Court of Appeals. 2004. Agreement obligated contractor to indemnify owner & owner’s agents. Port Authority brought third-party action against Bovis, which, in turn, brought third-party action against VPH. While Bovis acknowledged it had no contract with VPH, Bovis asserted it was entitled to contractual indemnification based on indemnity clause in contract between Port Authority & VPH, claiming it was “agent” of Port Authority. Contract not define “agent.” Bovis argued it qualified at Port Authority’s agent as Port Authority retained supervision & control over Bovis’ work. While the contract between Port Authority & VPH refers to the construction manager more than 130 times, indemnification clause contains no reference to construction manager or to Bovis by name. Also, the contract never stated the construction manager as being an agent of Port Authority. Also, in the section of the contract that prohibited VPH from giving gifts to port Authority, terms “agent” & “construction manager” were used as separate classifications. If parties intended to cover Bovis as potential indemnitee, they only had to say so. Tonking v. Port Auth. Of NY & NJ, 3 NY3d 486;

First Dept.

First Dept. 2018. Contract Not Identify Entity as “Agent.” Subcontract between Cirocco & defendant Sabey Construction neither identified second third-party plaintiff Select as “agent” nor included Select in the entities identified in indemnification provision. As such, no obligation on Cirocco’s part to indemnify Select & no such obligation will be read into it.  Nicholson v. Sabey Data Ctr. Props., LLC, 160 AD3d 587;

Premises Owner Not Named as Indemnitee. No Obligation to Indemnify Premises Owner.

First Dept. 2022. Entity Not Identified on “Cover Page” as Entity to be Indemnified in Contract. The contract in Article 1, titled, Definitions subsection (k) defines “Owner” to mean the persons or entities identified as the Owner on cover page of Agreement & include any heir, legal representative, successor or assign of such specified Owner.” Cover page of Agreement not name Granite as owner or anywhere else in contract. Padron v. Granite Broadway Dev., 209 AD3d 536;

First Dept. 2022. Premises Owner Not Named as Indemnitee. As indemnification clause stated owner’s agent, not owner, owner’s third party action against plaintiff’s employer dismissed. Tishman identified as “owner’s agent” in contract. Premises owner, LIC, neither identified nor included under indemnification provision & indemnification must be “strictly construed.” Tavarez v. LIC Dev. Owner, LP, 205 AD3d 565;

First Dept. 2021. Premises Owner Not Named as Indemnitee. St. Valentine denied contractual indemnification as it was not included as named “owner” in indemnification agreement. Also, no evidence it was third party beneficiary of agreement between tenant & contractor. Nothing in agreement suggesting St. Valentine, the premises owner, was intended to be a named indemnitee & St. Valentine’s failed to establish it proffered any consideration in order to be considered a party to the agreement. St. Valentine not know about construction project & not entitled to enforce indemnification provision in tenant’s agreement with contractor. Benitez v. Church of St. Valentine Williamsbridge NY, 171 AD3d 593;

First Dept. 2021. Premises Owner Not Named as Indemnitee. 345 Main, premises owner not entitled to summary judgment on its contractual indemnification claim as it is not a signatory or indemnitee under contract. Zieba v. 345 Main St. Assoc., 171 AD3d 482;

First Dept. 2015. Owner Not Indemnified in Contract. Subcontractors’ subcontracts identified owner-indemnitee as Ana Tzarev Management Limited, not defendant ATNY. Contrary to 24 West’s & ATNY’s assertions that this was simply a mistake, a certificate of capital improvement for the project, signed by a representative of the tenant of the premises for tax purposes, identified owner of the project as Ana Tzarev Management Limited, not ATNY. As the court is required to strictly construe an indemnification agreement, court could not find that ATNY was the owner entitled to indemnification under the subcontracts. Maggio v. 24 W. 57 APF, LLC, 134 AD3d 621;

First Dept. 2012. Star Delta not contractually obligated to indemnify Lincoln Center & City for claims arising out of negligence on its part. While Star-Delta’s subcontract with IBC incorporates the General Conditions of IBC’s contract with Lincoln Center, which includes indemnification clause, it does not contain express agreement by Star-Delta to indemnify Lincoln Center & City. Betancur v. Lincoln Ctr. for the Performing Arts, Inc., 101 AD3d 429;

Second Dept.

Second Dept. 2009. No Contractual Obligation to Indemnify Tenant. Manhattan failed to establish it was entitled to contractual indemnification as indemnity provision contained no reference to an agreement obligating Macro to indemnify the tenant or lessee of covered “owner.” Bagniski v. Queen Grand Realty, 68 AD3d 905;

Owner & Agent Entitled to Indemnification Even Though Not Specifically Named in Subcontract.

Comment. While not specifically named, entity may fall under the umbrella of parents, affiliates, joint venturers, and anyone else acting for or on behalf of any of them as well as any other indemnitee required under the General Contract or others reasonably requested to be named.  As such, look to the definition of who qualifies as indemnitee from the language of the indemnification clause..

First Dept.

First Dept. 2024. Issue of Fact. Although NYU Langone was not specifically named as indemnitee, subcontract defined indemnitees to include not only “NYU Hospital Center,” but also its parents, affiliates, joint venturers, and anyone else acting for or on behalf of any of them as well as any other indemnitee required under the General Contract or others reasonably requested to be named.” ASR not submit evidence showing NYU Langone was not an indemnitee under that broad definition. Motion court erred in finding that only a named entity was entitled to indemnification as such interpretation renders portions of the indemnification provision meaningless. However, NYU Langone failed to submit evidence to clearly establish an intention to indemnify it. Bradley v. NYU Langone Hosps., 223 AD3d 509;

First Dept. 2021. Agent Was Indemnitee. Commodore failed to establish Madison & Delphi not entitled to indemnification under blanket insurance/indemnity agreement executed by Commodore, which required it to hold “Owner,” its agents & affiliates harmless against any claim “arising out of or in connection with or as a consequence of the performance of the work.” Evidence Madison was building owner & Delphi, the building lessee, was affiliated with the Delphi entity entering into the contract with Commodore for the project. Hogan v. 590 Madison Ave., LLC, 194 AD3d 570;

First Dept. 2020. Owner Was Indemnitee. Owner identity in subcontract determined by prime contract. Where subcontract contained indemnification provision in favor of “Owner” without clearly identifying “Owner,” such identity determined by reference to prime contract incorporated into subcontract. Higgins v. TST375 Hudson, 179 AD3d 508; First Dept. 2014. Managing Agent & Premises Owner Covered For Indemnification Under Contract. Court rejected assertion defendants 170 West End Avenue Owners Corp. & 170 West End Avenue Associates not entitled to indemnification because only 170 West End Avenue Condominium is specifically identified as the “Owner” in the contract. Indemnification obligation not limited to “Owner,” but includes “the Owner parties & their respective officers, board members, agents and employees.” 170 West End Avenue Associates is managing agent of building & 170 West End Avenue Owners Corp, is actual owner of building. Guzman v. 170 W. End Ave. Assoc., 115 AD3d 462;  

March 6. New York. Labor Law §240(1) Single/Two Family Exemption Denied to Defendant Homeowner. Issue of Fact Whether Homeowner Directed/Controlled Plaintiff’s Work.

Ballard v. Beard, 2026 NY Slip Op 01260, decided March 5, 2026, Third Dept. Plaintiff performing renovation work at defendant’s vacation house in Columbia County, fell into a hole that had been excavated for installation of a Bilco door in the basement of the house. Defendant moved for summary judgment claiming he was exempt from liability under the Labor Law as the owner of a single family dwelling as he did not direct or control injury producing work.

The Legislature has carved out an exemption to 240(1) and 241(6) for owners of one and two family dwellings who contract for but do not direct or control the work. Such exception enacted to protect those who, lacking business sophistication, would not know or anticipate the need to obtain insurance to cover them against the absolute liability imposed by the Labor Law.

In ascertaining whether a particular homeowner’s actions amount to direction & control of a project, relevant inquiry is the degree to which the owner supervised the method & manner of the actual work being performed by the plaintiff. Defendant testified he hired Mr. Pesce to act as GC. Defendant did not ask Pesce if he had either workers’ compensation or liability insurance. Pesce did not provide estimate of projected cost of necessary renovations. It was Pece’s obligation to hire a crew. Pesce hired plaintiff to perform certain work.

Defendant denied having instructed Pesce to install Bilco door or having discussion of such installation. Plaintiff testified Pesce hired him; paid him weekly; supplied necessary materials; & instructed him on what tasks to complete. Plaintiff not recall discussing installation of Bilco door with defendant. Night before the accident, Pesce told plaintiff blocks needed to be brought to jobsite for installing Bilco door. Court found such evidence established prima facie burden homeowner’s exemption applied as defendant not direct or control injury-producing work.

However, plaintiff provided Pesce’s deposition testimony where he considered himself as the project “foreman” & defendant’s agent. Pesce denied being GC. Pesce said if he was GC he would have provided defendant with estimate of total cost prior to the starting the work. Instead, Pesce was paid for his labor on hourly basis & as certain parts of the job were completed. Pesce only paid the laborers when defendant was not present. Defendant paid for all supplies, tools & equipment& that defendant & defendant’s wife directed major aspects of the renovation. Laborers provided affirmations stating they were hired by defendant, not Pesce, & defendant personally directed work to be performed. Based upon such evidence, Appellate Court held plaintiff raised issue of fact to defendant’s motion and thus denied defendant’s summary judgment motion.

March 5. New York. Scaffold. Lack of Safety/Guard Rails or Misuse of Scaffold Cause of Accident? Comparative Negligence or Proximate Cause of Accident?

Bustamante v. BSD 370 Lexington, LLC, 2026 NY Slip Op 01180, Second Dept. BSD 370 Lexington contracted plaintiff’s employer to perform renovation work at building it owned on Lexington Avenue, NY County. Plaintiff’s work required him to stand on top of Baker scaffold. When plaintiff attempted to move the Baker scaffold while standing on the platform of the scaffold, scaffold toppled over, plaintiff falling 5 feet to the floor below.

Where plaintiff submitted transcript of his deposition testimony in which he testified scaffold had no safety railings & he was not provided with safety devices to prevent his fall, appellate court held plaintiff established a prima facie case of §240(1) violation. Appellate Court noted comparative negligence no defense to §240(1) violation.

Comment. Appellate Court decision reversed the motion court decision of denying plaintiff’s motion for summary judgment as to §240(1). Plaintiff in this case attempted to move the Baker scaffold by moving it while standing on such scaffold. Appellate court decision cites no evidence plaintiff was instructed to move the scaffold in this manner. Appellate Court cites no authority that this was the proper way to move a scaffold. Such decision cites no evidence plaintiff’s foreman was aware this is how plaintiff moved the scaffold.

So instead of climbing down from the scaffold & rolling it to the desired location, plaintiff concludes there is no reason for him to disembark from the scaffold while moving it. Plaintiff’s misuse of the scaffold results in scaffold “toppling over.” If plaintiff had not attempted to move the scaffold in this manner, scaffold would not have fallen over. Given that, is not the motion court’s decision the better decision, i.e., for a jury to determine whether defendants had foreseeability the baker scaffold would be moved in such a manner? If no foreseeability of such misuse of the scaffold, no need for a safety railing.  

March 4. New York. Indemnification. Subcontractor Had No Obligation to Indemnify or Procure Insurance For General Contractor as Subcontractor’s Work Had No Connection to Plaintiff’s Accident.

Cruz v. Lendlease, 2026 NY Slip Op 30587(U), decided February 17, 2026, Hon. James Clynes, Supreme Court, NY County. Plaintiff, employed by EJ Electric, injured while working at Javits Convention Center, when he tripped or slipped on debris, dust & sludge on fifth-floor passageway. Celtic Company was subcontracted by Lendlease, the GC, to perform sheet metal work for Javits project. Celtic employee testified Celtic workers were not working in vicinity of fifth-floor passageway when plaintiff’s accident occurred & their work unrelated to plaintiff’s electrical work.

Celtic, in moving for summary judgment, asserted alleged Labor Law provisions should be dismissed against it as a subcontractor can only violate such provisions if it had the authority to control & supervise plaintiff’s work. Celtic asserted it never controlled or supervised plaintiff’s work.

Celtic cited Article 12 of its contract with GC Lendlease which provided that Lendlease could seek indemnification from Celtic in the course of any work performed by Celtic. Article 11 of the same contract required Celtic to procure additional insurance for liability incurred during the course of Celtic’s work. Celtic asserted that since this action involved work unrelated to work performed by Celtic, it was not obligated to indemnify & procure additional insurance to any defendant.

Celtic required by its contract with GC Lendlease to indemnify Lendlease for any liability caused by, arising out of, resulting from, or occurring in connection with Celtic’s performance of its work. Celtic was only required to procure insurance under such circumstances. Motion Court held Celtic established plaintiff’s accident had no connection to Celtic’s work. As such, Celtic had no indemnification obligation to GC Lendlease & also dismissed from plaintiff’s action as it was not liable for common law negligence or Labor Law violations.        

Comment. Absent evidence of subcontractor’s work having any connection with injury producing work, subcontractor has no indemnity obligations to the GC or to provide additional insured coverage to GC.  Subcontractor merely performing work at the same construction project where an accident occurred is insufficient to establish indemnification & insurance procurement obligations to the GC.

March 4. New York. Reformation of Indemnification Where Wrong Entity Named as Entity to be Indemnified

Comment. Reformation of a contract or agreement requires a showing of

Mutual mistake or fraudulently induced mistake.

Establish by clear, positive and convincing evidence agreement not accurately parties’ intentions or previous oral agreement & reformation is appropriate remedy where wrong party was named in the contract.

Signed writing not express previously reached oral agreement.

First Dept.

First Dept. 2016. 313 West was building owner & Solil was building’s managing agent. Solil hired K&K as the GC pursuant to written contract that referred to Solil as building owner. 313 West moved for reformation of the contract to name it as the building owner.  A claim for reformation of a written agreement must be grounded upon either mutual mistake or fraudulently induced unilateral mistake. To succeed, party asserting mutual mistake must establish by clear, positive and convincing evidence agreement does not accurately parties’ intentions or previous oral agreement & reformation is appropriate remedy where wrong party was named in the contract. Plaintiff established that K&K intended to indemnify the true owner, 313 West. 313-315 W. 125^th St. LLC v. Arch Specialty Ins. Co., 138 AD3d 601;

Third Dept. Third Dept. 2021. Party seeking reformation bears the burden to show by “clear & convincing” evidence that document in question was executed under mutual mistake or unilateral mistake coupled with fraud and to demonstrate in no uncertain terms, not only that mistake or fraud exists, but exactly what was really agreed upon between the parties. In a case of mutual mistake, parties reached an oral agreement and unknown to the other, signed writing not express such oral agreement. There were no factual allegations that Central Mutual agreed to provide coverage to Pollards in their individual capacities or that any oral agreement to that effect was reached. Hilgreen v. Pollard Excavating, Inc., 193 AD3d 1134;

March 3. New York. While City of NY’s Motion to Amend Its Answer to Include Affirmative Defense of Fraud Denied Where Prior Precedent, Appellate Court Expanded Discovery to Post-Note of Issue as to “Documents.” Likely Include Funding Agreements. A Way Around Perdomo v. 361 Realty, 2026 NY Slip Op 00860

Arita v. FDS Assoc., LLC, 2026 NY Slip Op 01152, decided March 3, 2026, First Dept. Appellate Court held the motion court (Hon. Myrna Socorro), properly denied the City of NY leave to amend its Answer to add affirmative defenses of fraud and fraud on the court based upon a RICO complaint filed in federal court naming plaintiff’s attorneys and some of his medical providers as defendants.

Appellate Court decision cited in support of its 2024 decision, Linares v. City of NY, 233 AD3d 479, where defendants moved to amend their answer to assert counterclaim for fraud based on RICO complaint filed in federal court. Linares noted proposed counterclaim failed to allege any facts that plaintiff knowingly made material misrepresentations so as to support a fraud claim. It was held, “The unproven allegations of fraud against plaintiff’s attorneys & medical providers in the RICO complaint do not, without more, warrant a counterclaim for fraud against plaintiff himself.”

Linares holding was that “it should be left to the trial court to determine to what extent defendants can explore the RICO allegations at trial.” In Arita, the First Dept. held, “City should be permitted to conduct further limited discovery in the form of a deposition of plaintiff, constrained to what knowledge he had, if any, of the facts underlying allegations in the RICO action brought against his attorneys and medical providers, and discovery of any documents the City may learn during that deposition. This limited discovery, however, can be conducted while the case remains on the trial calendar.”   

Comment. Arita holds that even after note of issue filing, further deposition of plaintiff is allowed as to what knowledge plaintiff may have had as to allegations in the RICO action brought against plaintiff’s attorney & medical providers in that case. Likely, a plaintiff is going to deny knowledge of such allegations against its attorney & medical providers. However, Arita allows “discovery of any documents the City may learn of during that deposition.” This would appear to encompass a “funding agreement” where plaintiff is provided money prior to any verdict or settlement from a company engaged in such activity. Such funding agreement may confine plaintiff as to which doctors and medical facilities are to provide treatment & whether plaintiff is obligated to consent to procedures, including injections and surgeries, without option of seeking second opinion. Such funding agreement is outside attorney client privilege.  

March 3. New York. Back or Knee Injury Sustained From Excessive Weight of Object Being Carried/Lifted. Labor Law §240(1) Dismissed.

Comment. “Mere fact plaintiff injured by weight of a heavy object not 240(1) violation.” Such accident not caused by elevation related hazard. Injury caused by lowering a bucket is outside the protection of 240(1). While such accidents are tangentially gravity related, accident is result of routine workplace risk.

Note. First Dept. has held suffering such a back injury falls within protection of 240(1). Gove v. Pavarini McGovern, LLC, 110 AD3d 601 (2013).

Second Dept.

Second Dept. 2018. 240(1) Dismissed. Carrying a Beam. As part of work in renovating a bathroom, plaintiff & co-worker carrying heavy beam on their shoulders from their truck outside of premises to bathroom. Beam had to be brought through front entrance & then down set of steps. While engaged in such work, plaintiff felt his knee go forward” nearing bottom of steps with beam on his shoulder. Plaintiff dropped beam & fell to floor. 240(1) dismissed as accident not caused by elevation-related hazard. Plaintiff asserted cause of injury weight of beam he was carrying. Mere fact plaintiff injured by weight of a heavy object not 240(1) violation. Sullivan v. New York Athletic Club of City of NY, 162 AD3d 950; 

Second Dept. 2015. 240(1) Dismissed. Lifting a Steel Beam. Plaintiff injured installing 500 pound-beam into wall of house. Plaintiff & coworkers used hoist to lift beam 15 feet onto scaffold upon which plaintiff was standing. Hoist then removed from beam & one end of beam temporarily connected to wall of house, while other end of beam remained on top of scaffold. Plaintiff took end of beam resting on top of scaffold & manually lifted it one & one-half feet to connect it to wall of house. Plaintiff injured his back lifting beam. Fact plaintiff injured while lifting heavy object not give rise to 240(1) liability as injury not caused by elevation-related hazard. Cardenas v. BBM Constr. Corp., 133 AD3d 626;

Second Dept. 2003. 240(1) Dismissed. Accident From Using Rope to Lower Object. Plaintiff, an iron worker, injured his back at construction site while using rope to lower bucket containing 80-90 pounds of steel bolts. Protections of 240(1) not implicated simply because injury is caused by effects of gravity upon object. While back injury tangentially related to effects of gravity upon the bucket of steel bolts he was lowering, not caused by elevation-related hazards encompassed by 240(1). Aloi v. Structure-Tone, Inc., 2 AD3d 375; 

Fourth Dept.

Fourth Dept. 2021. 240(1) Dismissed. Lifting Metal Structure Off Surface of Roof. While lifting large metal structure 6-8 inches off surface of roof to allow coworkers to apply new roofing material underneath, plaintiff injured his back. Although accident tangentially related to effects of gravity upon the object he was lifting, accident not caused by limited type of elevation-related hazards encompassed by 240(1). Accident resulted from routine workplace risk of construction site. Branch v. 1908 West Ridge Rd, LLC, 199 AD3d 1362;

Fourth Dept. 2017. 240(1) Dismissed. Lifting Switchgear Segments. Plaintiff, journeyman electrician, engaged in renovation work at school. Plaintiff & coworker instructed by foreman to move two heavy switchgear segments from loading dock to room in basement of school. While lifting one of the segments, plaintiff injured his back. 240(1) dismissed as accident result of routine workplace risk of construction site & not elevation-related risk. Horton v. Board of Education of Campbell-Savona Central School District, 155 AD3d 1541; Fourth Dept. 2015.

240(1) Dismissed. Lifting a Door. Plaintiff, a carpenter, hired to perform exterior renovation work single-family residence & accident occurred while installing a door.  As plaintiff & coworker lifted door & were maneuvering door across a gap, plaintiff felt a twinge or “pop” in his lower back. Although the back injury was tangentially related to the effects of gravity upon the door he was lifting, it was not caused by the limited type of elevation-related hazards encompassed by 240(1). Hazard at issue here, i.e., carrying a heavy object across a lateral gap, even while positioned at a height, is a routine workplace risk of a construction site & not a pronounced risk arising from construction work at site elevation differentials. Carr v. McHugh Painting Co., Inc., 126 AD3d 1440;

March 3. New York. One And Two-Family Homeowners Exemption to 240(1) & 241(6) Liability

Homeowners Exemption Applied Even Though Corporation Was The Premises Owner

Wolosz v. Erzuli, 2026 NY Slip Op 30584(U), decided Feb. 17. 2026, Hon. Arlene Bluth, Supreme Court, NY County. While working at construction site, plaintiff carrying heavy machinery down permanent staircase to the basement when he fell upon losing his balance. Defendant Erzuli LLC, the premises owner, contended the project was going to be used as a single family home & no employee of Erzuli LLC directed or controlled injury producing work. As such, defendant Erzuli LLC sought summary judgment on Labor Law §240(1) action on the Homeowners Exemption. Construction consisted of turning 2 single family townhouses into a single home.

It was held, “the fact that title to an otherwise qualifying one and two family dwelling is held by a corporation rather than an individual homeowner, does not, in and of itself, preclude application of the  homeowners exemption, citing Assevero v. Hamilton  & Church Properties, LLC, 131 AD3d 553 (2^nd Dept. 2015). Although plaintiff complained it did not get the chance to question Erzuli’s principal, plaintiff did not point to, or attach, any evidence he ever pursued this deposition. Plaintiff offered no evidence the property was anything other than a residential property.

Comment. Owners of single and two family homes, not apartments, having construction work performed to such homes, are exempt from 240(1) & 241(6) liability when a worker suffers an accident.

Home must be used for residential, not commercial purposes.

Court of Appeals

Court of Appeals. 1995. Issue of fact whether the two two-family semi-attached structures are entitled to homeowners exemption. Such 2 buildings shared a single stairway leading to all units in both buildings; had a single metal gate, with one entrance, surrounding both properties; a common roof.  Also, the 2 structures had separate basements, heating systems, doorways, garages, are taxed separately & have different addresses. Issue of fact whether homeowners exemption applies. Mandelos v. Karavasidis, 86 NY2d 767; 

Court of Appeals. 1992. Issue of Fact as to Possible Commercial Use. 240(1) Not Dismissed. Plaintiff fell from ladder while cutting down a tree. A tree limb struck plaintiff’s ladder, causing fall to the ground. Tree removal was part of plan to remodel a house. The tree was to be removed to make way for the construction but also to allow paving the driveway of the house and in connection with a parking lot to serve the funeral home of defendant. Owner stated purpose in renovating the premises included upgrading it for possible future rental and he did rent the house to 2 families. Lombardi v. Stout, 80 NY2d 290; 

Second Dept.

Second Dept. 2015.  In 1980, the Legislature amended Labor Law Sections 240 and 241 to exempt owners of one and two family dwellings who contract for, but not direct or control the work from the absolute liability imposed by these statutory provisions. Assevero v. Hamilton & Church Props., LLC, 131 AD3d 553;

Second Dept. 2016.  Exemption was enacted to protect owners of one and two-family dwellings who are not in a position to realize, understand, and insure against responsibilities of strict liability imposed by 240(1) and 24196).  Ramirez v. LGCC Wall Sys., Inc., 140 AD3d 1047;

Third Dept.

Third Dept. 2022.  Although both 240(1) and 241(6) impose nondelegable duties upon contractors, owners and their agents to comply with certain safety practices for protection of workers engaged in construction-related activities, the Legislature has carved out an exemption for owners of one and two family dwellings who contract for but do not direct or control the work. Capuzzi v. Fuller, 200 AD3d 1448;

 Evidentiary Showing of Homeowner

Work was conducted at a residence for only one or two families.  As such, apartment building not qualify for homeowner’s exemption.

Homeowner must show it not direct or control the work being performed at the residence.

Second Dept. Abdou v. Rampaul, 147 AD3d 885;  

Evidence Indicating Commercial or Residential Use of Home

Mortgage which deleted provision that home only be used as residential premises.

Documentation showing 3 RSD had previously undertaken similar projects for commercial purposes.

Nothing in house plans indicated commercial use.

Certificate of Occupancy.

Tax certificate defendant signed certifying she was exempt from paying sales taxes on the materials & labor used to construct the barn as it was to be used predominantly in farm production or in a commercial horse boarding operation.

Residential or Commercial Use

First Dept.

First Dept. 2024. Mortgage Provision as Evidence. In a prior motion, plaintiff raised issue of fact as to whether defendant intended to use property for commercial purposes by submitting evidence that a provision of the mortgages on the property that required defendants to occupy the property within 60 days and to use the property as its principal residence had been deleted. Motion to renew was denied. Defendant submitted affidavit that he & his family had moved into the property after renovations were completed. However, the fact that the family moved into the property after the accident not change the result, as the availability of homeowner’s exemption hinges upon the site & purpose of the work, a test which must be employed on the basis of homeowner’s intentions at the time of the injury. Solis v. 340 W. 12 Realty LLC, 2024 NY Slip Op 01886;

First Dept. 2023. Documentation For Similar Projects. Issue of Fact Whether Property to be Used For Commercial Purposes. 3 RSD is owned by a nonparty LLC that has only one managing member. 3 RSD submitted its managing member’s affidavit stating 3 RSD intended to use the property solely for residential purposes. Plaintiff produced documentation showing 3 RSD had previously undertaken similar projects for commercial purposes. 3 RSD made its motion prior to producing the managing member for a deposition. As such, plaintiff established that facts essential to justify opposition might exist but could not be stated as information was within the exclusive knowledge of the party moving for summary judgment. As such, the motion was dismissed as premature. Rivera v. Matiz Architecture, PLLC, 217 AD3d 552;

First Dept. 2018. Nothing in house plans indicated commercial use. 240(1) & 241(6) Dismissed. Defendant homeowners showed they were never at the residence while it was under demolition/construction; had no role in the work and intended to use the premises as a family vacation home.  Nothing in the house plans indicates any portion would be for commercial purposes and plaintiff’s speculation that the house might be rented when homeowners not in residence insufficient to raise issue of fact. Domiguez v. Barsalin, LLC, 158 AD3d 532;  

First Dept. 2014. Homeowners Intended to Use One Family House as Second Home At Time of Accident, Although Subsequently Leased House After Accident. Plaintiff fell from scaffold while working on renovation project at owners’ one family house.  Deposition testimony that the owners renovated the house for purpose of modernizing it and using it as a second home was not contradicted.  The house was unoccupied at the time of the accident.  The renovation began in July 2005.  Renovation reached the punch stage list in the fall of 2006.  The owners, who never occupied the house, decided to lease it out in spring of 2007 & did so in August of 2007.  Owners entitled to homeowners exemption. Farias v. Simon, 122 AD3d 466;

First Dept. 2009. Certificate of Occupancy. Plaintiff fell from icy scaffold while doing renovation work at recently purchased weekend home of defendants. Certificate of occupancy stated it was a 2 family dwelling and that it was intended to be used as one family dwelling as did the prior owners. Fact that defendants hired an architect to draw plans for portions of the work and to periodically check to see if the quality of the work was reflective of her plans was not personal direction and control by defendants. Plaintiff received his daily orders from his foreman & general manager of the contractor, provided his own tools or received them from employer. Defendants made only a few visits to house & their conferences with GC were to gauge progress and discuss aesthetic details. Thompson v. Geniesse, 62 AD3d 541; First Dept. 2008.

Tax Certificate. Plaintiff sustained injuries while working on a barn owned by defendant & located on a parcel adjacent to that on which defendant’s one-family dwelling was located. Conflicting evidence as to whether the 2 parcels were separated by a fence & whether the barn was accessible only from a neighbor’s road raised issue of fact. Another issue of fact, as to whether defendant intended to use the barn for commercial purposes is raised by a tax certificate she signed certifying she was exempt from paying sales taxes on the materials & labor used to construct the barn as it was to be used predominantly in farm production or in a commercial horse boarding operation. While such certificate not estop defendant from denying she intended to use the barn commercially, it constitutes some evidence of such intention, justifying denial of defendant’s motion. Davis v. Maloney, 49 AD3d 385;

March 2. New York. Whether School Construction Authority (SCA) Owned And Made “Special Use” of Public Sidewalk in Construction Project.

Torres v. City of NY, 2026 NY Slip Op 30553(U), Hon. Hasa Kingo, Supreme Court, NY County. Plaintiff alleged trip & fall accident from height differential between sidewalk flags at 306 Fort Washington Avenue, NY County. SCA conceded that when the accident occurred, construction work was ongoing under the SCA’s direction through its contractor & that a sidewalk bridge installed as part of such project. SCA contended that while sidewalk bridge was installed, SCA had no duty to repair or replace sidewalk concrete until removal of sidewalk shed.

Motion Court held issue of fact whether SCA was owner or entity in sufficient control of the property/sidewalk to owe a duty to plaintiff. Municipal property/zoning records described Dept. of Education (DOE) as having “assigned management jurisdiction” to SCA pursuant to the Public Authorities Law & which also provided the zoning lot was presently owned by SCA. SCA’s witness, when asked who owned the property, responded it was either SCA or DOE. As SCA’s own witness could not definitively exclude SCA ownership, SCA not establish it was not an owner or entity controlling the area.

“Special Use” also at issue. “The Court of Appeals has long recognized that where permission is granted by a municipal authority to interfere with a street/sidewalk for private use & convenience, the party deriving such a special benefit unrelated to public use may be required to maintain the affected area or structure in a reasonably safe condition, grounded in that party’s access to & control over the special use installation.” Kaufman v. Silver, 90 NY2d 204 (1997).

Motion Court also cited First Dept. precedent that where construction protections encroach on narrow pedestrian passage & may direct pedestrians toward a defect, summary judgment dismissing claims on duty/causation grounds may be unwarranted because of issues of fact whether an encroachment constituted special use & whether it proximately caused the injury by channeling the pedestrian path. McKenzie v. Columbus Ctr., 40 AD3d 312 (207).   

Here, Motion Court held it was an issue of fact whether sidewalk shed narrowed/directed pedestrian travel in a manner that increased risk of plaintiff encountering alleged sidewalk defect. SCA’s claim that a sidewalk replacement would only occur after sidewalk bridge removal, not negate duty to maintain reasonably safe pedestrian pathway during period SCA was occupying & using the sidewalk space.

Comment. Special Use. Where entity uses a sidewalk as part of its operations, such entity may be liable for sidewalk defect.  You typically see “special use” invoked where a property owner leases a building and the tenant, usually a retail store, uses the public sidewalk adjacent to the building to have a soda or recycling machine on the sidewalk, displays goods for sale on a sidewalk, or a tenant driving over the sidewalk to reach the rear of a building. In such instances, the tenant, not the premises owner, may be held liable for structural defects with the sidewalk.

March 2. New York. Labor Law §200 & Common Law Negligence Actions Dismissed Against Premises Owner/GC Warrants Contractual Indemnification From Subcontractor Supervising & Controlling Injury Producing Work.

Comment. Premises owner & GC, in seeking contractual indemnification from subcontractor must first obtain dismissal of the Labor Law §200 claim. Such dismissal established the owner & GC were not actively negligent. Indemnification, contractual or common law, is not available to an entity whose negligence caused or contributed to the accident.  Dismissal of §200 claim based upon the owner & GC not controlling or supervising the injury producing work.      

GC’s General oversight duties, work coordination, and safety reviews not constitute supervision & control under §200. “Authority to enforce general safety standards insufficient to establish Essex directed or controlled plaintiff’s work.”

First Dept.

Unloading Sheetrock From Truck Onto Dolly

First Dept. 2021. §200 Dismissed. BRF, the GC, just performed general safety supervision at the work site & had no supervisory control over decedent’s work, namely unloading sheetrock from a truck onto a dolly. Given dismissal of §200 claim against premises owner & GC, both entities are entitled to contractual indemnification if there is a finding of negligence against third party defendant Castellano v. Ann/Nassau Realty LLC, 199 AD3d 558;

Scaffold Fall

First Dept. 2019. §200 Dismissed. Plaintiff fell several feet from a scaffold. Such accident arose out of means & methods of work & not dangerous or defective premises condition. As contractor established it not exercise requisite degree of control over means & methods of plaintiff’s work at time of accident, §200 claim & common law negligence claims dismissed. Contractor thus established its entitlement to full contractual indemnification from subcontractor. Gilligan v. CJS Bidrs., 178 AD3d 566;

Electrical Shock

First Dept. 2015. §200 Dismissed. Plaintiff, a steamfitter, injured from electrical shock while performing work in ceiling of a building under renovation. Common law negligence & §200 claims dismissed against GC Hunter Roberts as general oversight duties, work coordination & safety reviews not constitute supervision & control under §200. Hunter Roberts established it was not on notice of unsafe condition of wires. Fact plaintiff granted summary judgment on 241(6) claim against Wells defendants not bar Wells defendants from contractual indemnification as their liability under 241(6) was purely vicarious, as no active negligence. Quiroz v. Wells Reit-222 E. 41^st St., LLC, 128 AD3d 442;

First Dept. 2012. §200 Dismissed. Baker suffered electrical shock while engaged in work. Subcontractor’s contract stated it will indemnify owner & GC  “for accident which happens, or is alleged to have happened, in or about the place where Work is being performed or in the vicinity thereof; while the subcontractor is performing the work , either directly or indirectly through a subcontractor or while any of Subcontractor’s property, equipment or personal are in or about such place by reason of the performance of the work.” As plaintiff performing work on behalf of subcontractor & other subcontractor still had property, equipment or personnel in place, Atlas, the owner, & GC Plaza entitled to contractual indemnification. With §200 & common-law claims dismissed against them, Atlas’s & Plaza’s only liability, if any, would be vicarious under 241(6).  As such, Atlas & Plaza can enforce indemnification provisions in the contracts. Fiorentino v. Atlas Park LLC, 95 AD3d 424;

Merely Walking Site on Daily Basis Insufficient to Deny Indemnification

First Dept. 2014. §200 Dismissed. Accident caused by manner in which work was performed by Sage, electrical contractor. Plaza Construction not exercise supervision or control over injury producing work. That Plaza had a representative who would walk the site on a daily basis & had authority to stop work for safety reasons is insufficient to raise issue of fact as to whether Plaza exercised requisite degree of supervision & control to sustain §200 or common law negligence claim. No evidence Plaza’s employees ever gave specific instructions to plaintiff, his employer, Sage, or other subcontractors working on the deck at time of accident. Also, deposition testimony provided Plaza not responsible for removing piece of electrical conduit causing plaintiff to trip. Indemnity provision provided Sage will indemnify Plaza for any liability or claims arising out of or connected with performance of work by Sage. As plaintiff’s accident was, at least in part, caused by or occurred in connection with Sage’s work of installing electrical conduit on a deck, Plaza entitled to unconditional indemnification from Sage. Francis v. Plaza Constr. Corp., 121 AD3d 427;

First Dept. 2014. §200 Dismissed. Third party defendant Solar was obligated by contract to indemnify defendants for suits arising from its work, except to the extent damage was attributable to defendants’ fault. In view of dismissal of common law negligence & Labor Law §200 causes of action, liability that may be imposed on defendant will be vicarious pursuant to 241(6) & no bar to their recovery of complete indemnification pursuant to Solar’s contract. Best v. Tishman Constr. Corp. of NY, 120 AD3d 1081; 

Fall From Ladder

First Dept. 2012. Plaintiff standing on a ladder, unassisted, attempting to pull a large piece of sheetrock in the ceiling of an apartment. Reaching for a screw gun strapped to his side, ladder collapsed, causing a fall. CPS owned the building. Defendant Slosberg retained DSA, plaintiff’s employer, to renovate & combine 2 apartments. CPS entitled to contractual indemnification from Slosbergs for “claims for damage to persons or property suffered as a result of the alterations.” As it was undisputed plaintiff’s accident arose from the alterations, CPS entitled to be indemnified. Dwyer v. Central Park Studios, Inc., 98 AD3d 882; 

Scaffold Came Into Contact With Building

First Dept. 2011. §200 Dismissed. Owner & GC Entitled to Contractual Indemnification. Accident occurred when suspended scaffold that plaintiff straddling swung toward a building & crushed his chest. Plaintiff working for A&B, which supplied plaintiff scaffold & supervised his work. Terms of trade contract to which A&B was retained required A&B to defend & indemnify defendants where, as here, claims arose from A&B’s work & no evidence of negligence by defendants, as the Court dismissed common law negligence & §200 claims. Indemnification clause not violate GOL §5-322.1 (1) as it limits indemnification to the fullest extent permitted by law. Smith v. Broadway 110 Devs., LLC, 80 AD3d 490;  

Platform Construction

First Dept. 2009. §200 Dismissed. Undisputed Carabie directed & controlled plaintiff’s work as well as construction & installation of the platform. §200 & common-law negligence claims against Posillico dismissed. While Carabie’s negligence was not yet been proven, Posillico’s liability, if any, would only be vicarious and statutory.  As such, Posillico entitled to contractual indemnification from Carabie.  Macedo v. JD Posillico, Inc., 68 AD3d 508;

Second Dept.

Second Dept. 2006. Site Owner & Construction Manager not exercise control or supervision of work site. Although employee of construction manager testified at his deposition that construction manager made daily inspections of site & could stop work for unacceptable safety standards, not sufficient to preclude contractual indemnification. Bink v. FC Queens Place Associates, LLC, 27 AD3d 408;  

Third Dept.

Cable Installation

Third Dept. 2012.  Time Warner entitled to Indemnification From subcontractor. Time Warner contracted with defendant Sure Connect to perform cable installations & Sure Connect, in turn, contracted with various technicians, including plaintiff to perform actual installation work. Indemnity agreement provided Sure Connect “shall be responsible for its acts and the acts of its subcontractors during performance of the services and shall indemnify and hold harmless Time Warner with respect to any claims arising from its negligent acts or omissions of those workers furnished by it.” Sure Connect was subject to limited oversight from Time Warner. Retention of general supervisory control insufficient to establish control necessary for Labor Law liability. As such, Time Warner not actively negligent & entitled to indemnity from Sure Connect. Gunderman v. Sure Connect Cable Installation, Inc., 101 AD3d 1214;

Third Dept. 2004. While Stone Bridge established BBL generally supervised project & maintained a presence at the site, evidence revealed BBL had no direct supervision over Stone Bridge employees or the manner in which the work was performed. As such, Stone Bridge failed to raise issue of fact as to BBL’s negligence sufficient to prevent dismissal of Stone Bridge’s claim for indemnification. Biance v. Columbia Washingto Ventures, 12 AD3d 926;

Fourth Dept.

Injury From Use of Saw Fourth Dept. 2005. Evidence established liability of Essex is vicarious, arising solely from its status as GC. Niagara Gutters, plaintiff’s employer, directed & controlled work plaintiff performing at time of accident, & Niagara Gutters owned the saw & the truck on which saw was mounted. That Essex may have had general supervisory authority over work, including authority to enforce general safety standards insufficient to establish Essex directed or controlled plaintiff’s work. Niagara Gutters obligated to indemnify Essex, the GC. Sparks v. Essex Homes of WNY, Inc., 20 AD3d 905; 

March 1. New York. Additional Insured Coverage. Declaratory Judgment Action Not a Vehicle to Decide Liability Issues Being Decided by Trial Court in Underlying Action. Risk of Inconsistent Verdicts.

Pace Univ. v. Clear Blue Ins. Co., 2026 NY Slip Op 30613 (U), decided Feb. 18, 2026, Hon. Phaedra Perry-Bond of Supreme Court, NY County. Pace contracted NYCAN to serve as construction manager on a project at One Pace Plaza in Manhattan. Such contract required NYCAN to procure CGL policy in the amount of $1 million per occurrence, with Pace to be named as additional insured (AI). Clear Blue issued CGL policy providing coverage in the amount of $1 million.

NYCAN subsequently contracted certain drywall work at the premises to Chelsea Construction Group & such contract required Chelsea to procure CGL policy in the amount of $1 million with umbrella insurance of $5 million, with such policies naming Pace & NYCAN as AIs on a primary & noncontributory basis.

Falls Lake issued a GCL policy to Chelsea in the amount of $1 million. Princeton issued excess policy to Chelsea for $1 million & Mt. Hawley issued excess umbrella policy to Chelsea with limits of $5 million.

Declaratory judgment action arose from the underlying lawsuit of Mr. Ramirez, who sustained injuries when falling off a scaffold in the course of his employment with Chelsea at the One Pace Plaza construction project. In response to such accident, Clear Blue tendered a request for indemnification and AI coverage for Pace & NYCAN to Chelsea & its insurer Falls Lake, which accepted such tender, providing defense counsel for Pace & NYCAN. Princeton & Mt. Hawley issued a reservation of rights but did not disclaim coverage.

In the underlying Ramirez action, Pace filed a third-party complaint against Chelsea seeking contractual indemnification. The motion court granted Mr. Ramirez summary judgment on the §240(1) action but did not determine whether defendants violated §200 & third-party claims for indemnification. Trial for the third-party claims is scheduled.

Pace & NYCAN claimed that Falls Lake, Princeton & Mt. Hawley must each provide them a defense & indemnification prior to defense & indemnification being triggered under Clear Blue’s policy & a declaration that such insurers may not rely on any exclusions or conditions to preclude coverage. The motion was withdrawn as to Fall Lake, presumably because Falls Lake assumed their defense.

Pace & NYCAN’s motion was denied, with leave to renew, after there has been a finding at trial that Chelsea’s acts or omissions proximately caused Ramirez’s accident. The motion deemed premature.

“Where as here, the issue of whether an insured proximately caused an accident has not yet been determined in underlying action, any determination in a declaratory judgment action as to the insurer’s duty to indemnify an AI based on the primary insurer’s purported responsibility is premature … The purpose of a DJ action is not to make a legal determination that are within the province of the trial court presiding over the underlying action giving rise to the coverage dispute … If this Court were to issue rulings on liability that are currently being litigated before the trial court, DJ actions would become venues to determine liability in wholly separate underlying actions, risking possibility of inconsistent verdicts.”

February 28. New York. Indemnification. Subcontractor Only Obligated as to Prime Contract Provisions Relating to “Scope, Quality, Character & Manner of Work.”

Figaro v. City of NY, 2026 NY Slip Op 30583(U), decided Feb. 17, 2026, Hon. Phaedra Perry-Bond, Supreme Court, NY County. Iron worker struck by 200-pound aluminum beam at the North River Pollution Control Plant in Manhattan. Defendant/third-party plaintiff City of NY owned the premises & retained defendant/third-party plaintiff Geomatrix Services to serve as GC on a construction project at the premises. Geomatrix retained Cube Construction & Cube retained Kosuri to design a system for installing steel beams that allegedly injured plaintiff.

Kosuri brought into the action by NYC & Geomatrix by a third-party complaint alleging contractual & common law indemnification. Kosuri brought as pre-answer motion to dismiss asserting it had no contractual relationship with NYC & Geomatrix & the common law indemnification warrants dismissal as Kosuri only provided limited engineering plans on the project.

Indemnification clause in the Purchase Order required Kosuri to indemnify the “Owner and others as may be required by the Prime Contract.” Such Purchase Order makes clear where the job site is & therefore the identity of NYC as the “owner” is unambiguous. However, it was held the reference to “and others as may be required by the Prime Contract” was insufficient for Geomatrix to sustain a third-party contractual indemnification claim.

Citing Goncalves v. 515 Park Ave. Condominium, 39 AD3d 262 (1^st Dept. 2007), “incorporation clauses in a construction subcontract, incorporating prime contract clauses by reference into a subcontract, bind a subcontractor only as to the prima contract provisions relating to the scope, quality, character & manner of the work to be performed by the subcontractor.”

As such, contractual indemnification claim against Kosuri was dismissed as to the extent it was asserted by Geomatrix.  Again, Kosuri was retained by Cube Construction, who was retained by Geomatrix. Third party claim for indemnification dismissed since the promises upon such claim are based are found in the main agreement, to which third-party defendant Kosuri was not signatory to such agreement.    

Comment. A subcontractor contracting to indemnify a GC is not obligated to indemnify a premises owner. While the GC is obligated to indemnify the premises owner, the subcontractor entered into no contract with the premises owner.  While the contract between the subcontractor and the GC incorporated the contract between the premises owner and the GC by reference, that is not enough for the subcontractor to indemnify the premises owner. Subcontractor is bound by the premises owner-GC contract but only to the scope, quality, character & manner of work to be performed by the subcontractor. As such, no obligation to indemnify the premises owner.

Language Incorporating Prime Contract Into Sub-Subcontractor’s Contract.

Arising out of or in connection with any operations of the Contractor and/or its subcontractors to the extent resulting from any negligent act of commission or omission … or failure to comply with the provisions of the Agreement or of the Laws.

First Dept.

First Dept. 2008. Third party claim for contractual indemnification properly dismissed since the promise on which it was based is found in the main agreement between Carlyle & original contractor, to which third party defendant Exterior was not a signatory. While the construction subcontract signed by Exterior incorporated the main agreement by reference, under NY law, incorporation clauses in a construction subcontract, incorporating prime contract clauses by reference into a subcontract, bind a subcontractor only as to prime contract provisions relating to the scope, quality, character & manner of the work to be performed by subcontractor. Waitkus v. Metropolitan Hous. Partners, 50 AD3d 260;   

First Dept. 2007. Third party claim for indemnification dismissed since the promises upon such claim are based are found in the main agreement, to which third-party defendants were not signatories. While it is true that construction subcontracts signed by third party defendants incorporated the main agreement by reference, under NY law, incorporation clauses in construction subcontract, incorporating prime contract clauses by reference into a subcontract, bind a subcontractor only as to prime contract provisions relating to the scope, quality, character & manner of the work to be performed by subcontractor. Adams v. Boston Properties Ltd., 41 AD3d 112;  

First Dept. 2007. The unsigned purchase order between subcontractor Hird & sub-subcontractor Woodworks, plaintiff’s employer, requires Woodworks to “receive, distribute and install all work” in accordance with the terms of the attached “trade subcontract” between Hird & GC. Court held that such language does not incorporate the provisions of the trade subcontract relating to indemnification. Incorporation clauses  in construction subcontract, incorporating prime contract clauses by reference into a subcontract, bind a subcontractor only as to prime contract provisions relating to the scope, quality, character & manner of the work to be performed by subcontractor. Nor is such incorporation accomplished by the portion of the “scope of work” clause of the trade subcontract requiring second-tier subcontractors like Woodworks to “maintain insurance equal to that required by this subcontract & be bound by the same terms and conditions as those of this subcontract. However, as there is no mention of indemnification & no reference to the trade subcontract, such obligation to obtain insurance does not require an obligation to indemnify. Goncalves v. 515 Park Avenue Condominium, 39 AD3d 262;  

First Dept. 2001. Under NY law, incorporation clauses in construction subcontract, incorporating prime contract clauses by reference into a subcontract, bind a subcontractor only as to prime contract provisions relating to the scope, quality, character & manner of the work to be performed by the subcontractor. Further, there are no provisions in the prime contract expressly requiring subcontractors to purchase insurance or to indemnify Bell Atlantic, & extent to which subcontractors were bound by the Contract Documents expressly limited under Article 5(a)(4) of the contract’s General Terms and Conditions. Pursuant to Article 10 of the main contract, “Contract Documents” made no reference to documents pertinent to indemnification. Bussanich v. 310 East 55^th St. Tenants, 282 AD2d 243; 

Second Dept. 2012. Contractual Indemnification Denied. Cause of action for indemnification based upon promise in prime agreement between subcontractor BTG & GC Hunt Bovis to which Gessin Electrical was not a signatory. Despite the fact construction subcontract signed by Gessin incorporated the main agreement by reference, under NY law, incorporation clauses in a construction subcontract, incorporating prime contract clauses by reference into a subcontract, bind a subcontractor only as to prime contract provisions relating to scope, quality, character & manner of the work to be performed by subcontractor. As such, provisions in prime agreement related to contractual indemnification for employee’s injuries & insurance procurement were not incorporated by reference into subcontract between Gessin & BTG & thus, defendants failed to establish existence of written indemnification agreement. Contractual indemnification denied. Persuad v. Bovis Lend Lease, Inc., 93 AD3d 831;

February 28. New York. Indemnification Claims Dismissed Against Site’s “Middle Man” as No Evidence Such Entity Controlled/Supervised The Work Causing The Building Damage.

Donnelly v. Pung San Constr. Corp., 2026 NY Slip Op 30578(U), decided Feb. 18, 2026, Hon. Arlene Bluth, Supreme Court, NY County. Action arose from damages sustained to a building from a fire. The painting subcontractor, AMHI, was hired by the owner. The last workers on the site before the fire were employees of AMHI. VVA asserted it had no responsibility to perform or supervise the work.

The decision held the premises owners hired VVA to act as a “middle man” and VVA specifically contracted not to have any supervisory control over the work. There is no allegation that VVA caused the fire in any way. That VVA may have communicated with AMHI as to AMHI’s work progress “is too attenuated” to find that VVA somehow had a duty to other subcontractors on site. VVA’s contract provided it had no duty to control AMHI’s work (assuming that AMHI’s work caused the fire). All indemnification claims against VVA dismissed.   

February 27. New York. Despite Plaintiff’s Uncontradicted Deposition Testimony of Not Knowing What Caused a Bar To Fall & Strike Him, Appellate Court, Reversing The Motion Court, Imposed §240(1) Liability in Unwitnessed Accident.

Valarezo v. HP Jamsta Hous. Dev. Fund Co. Inc., 2026 NY Slip Op 01148, decided Feb. 26. 2026 by First Dept., arose from an accident where plaintiff claimed he was struck by a falling bar at a work site. Plaintiff & coworkers were “making cement bases” by using a drilling/excavation machine for purpose of removing steel bars that had been drilled into the ground. When removing such bars, fabric sling was tied to the top of the bar, a hook was placed into the sling & drilling/excavation machine lifted the bar away. Appellate Court concluded, but not the plaintiff, that as one bar was being removed, it fell, striking plaintiff.

Appellate Court decision stated that plaintiff testified the falling bar was standing vertically on the drilling machine & was not secured before the machine moved it. It was held §240(1) was violated as evidence established the steel bar was not secured while the excavation/drilling machine was hoisting it out of the ground.

The decision further held that while plaintiff testified he did not see the precise moment the bar began to fall & was unsure whether a sling was attached to the bar at the time of the accident, plaintiff not required to show the exact circumstances under which the metal bar fell.

The motion court, in its decision, held, “the record is devoid of any admissible evidence demonstrating that at the time of the accident the subject bar was in fact being hoisted and was unsecured.”  The motion court further held, “Plaintiff does not testify that he knows what caused the accident and the deposition testimony are of witnesses that did not witness the accident. … The record is devoid of any admissible evidence demonstrating that at the time of the accident the subject bar was in fact being hoisted and was unsecured.” As such, the motion court denied plaintiff’s summary judgment on the §240(1) cause of action.  

As plaintiff testified he was unaware what caused the bar to strike him, why does appellate court decision conclude the metal bar was being hoisted where the appellate court states its decision granting §240(1) is entirely based on plaintiff’s deposition testimony?

While appellate court decision held plaintiff “was not required to show the exact circumstances under which the object fell,” according to the evidence cited in the motion court decision, plaintiff not only did not know the exact circumstances of what caused the accident, plaintiff knew of NO circumstances as to how the metal bar fell. For the appellate court to reverse the motion court where plaintiff’s deposition testimony is he did not know what caused the metal bar to fall and such alleged accident unwitnessed, troubling.

February 27. New York. Labor Law §240(1). Platform of Order Picker (Similar to Forklift) Fell, Striking & Killing A Worker. §240(1) Issue: Was The Worker Performing Routine Maintenance or a Repair?

Wissert v. Medline Indus. Inc., 2026 NY Slip OP 01101, decided February 26, 2026, Third Dept. The decedent, a technician for third-party defendant Pengate Handling Systems of NY, went to a facility owned by defendant to service an “order picker,” described as a platform upon which a person can stand that can be hydraulically raised & lowered. As the decedent was examining & disassembling the order picker, such order picker’s raised platform fell upon the decedent, causing his death.

Plaintiff moved for summary judgment under Labor Law §240(1), claiming the lack of a safety device, namely, a “safety stand,” violated §240(1).

At issue, for §240(1) liability, was whether plaintiff engaged in repair work or maintenance. Judicial precedent provides that only repair work is protected under §240(1). As such, if plaintiff is struck by a falling object or suffers a fall from an elevated height while engaged in routine maintenance work, §240(1) claim is dismissed as a matter of law.

Repairing is distinguished from the uncovered activity of routine maintenance, which involves replacing components requiring replacement in the course or normal wear & tear. Work occasioned by isolated & unexpected event is held to constitute repair work under §240(1) protection.

Plaintiff cited deposition testimony of Mr. Hill, a technician employed by Pengate & decedent’s coworker at the time of the accident. Hill examined the order picker prior to the day of accident & found there to be a leaking lift cylinder. Such problem required repacking of the hydraulics, which involved raising & securing the picker’s platform, removing the cylinder & installing new seals.

This would take 2-5 hours & such was outside scope of scheduled maintenance, requiring a separate work order. Hill testified that on the day of the accident, he & decedent moved the order picker to a loading dock & raised the platform to begin the process without securing platform’s elevated position. Decedent attempting to remove a “snap ring,” which is part of the repackaging procedure when struck by falling platform.

Plaintiff’s expert, Edward Zemeck, an engineer, opined hydraulic system work performed by decedent constituted a repair because it stemmed from isolated event.

Defendant submitted its scheduled maintenance agreement with Pengate, stating hydraulic leaks are expressly listed. Court noted that while such agreement is identified as one for “maintenance,” & notes that work should be “carried out once every service interval,” it also provides repairs will be carried out at current rates for labor, parts & expenses.”

Upon such evidence, it was held issue of fact whether such work was a repair or maintenance. “Indeed, delineating between routine maintenance & repairs is frequently a close, fact-driven issue.”

Comment. Third Dept. provided a comprehensive decision commenting upon how various forms of evidence were interpreted as to this issue.  I do not think the court’s decision of an issue of fact was determined solely from competing expert witness opinions. How the work was performed; how long the task would take; why the work was performed; and terms of a service agreement, were all considered beyond that of expert opinion. Again, where a worker falls off a ladder or elevated platform, or is struck by a falling object, if that worker was engaged in routine maintenance, one example, changing a light bulb, §240(1) is not violated.

February 26. New York. Subcontractor Not Agent of Owner of GC. 240(1) Dismissed. First Dept. Decisions.

Comment. To be an agent of premises owner or GC, the entity must have had control over the injury producing work. Such control allows the entity to implement site safety measures for work it was performing, or, assumed overall authority to correct unsafe work conditions at project site. This would include authority over the work area where the accident occurred. Also, provided no equipment to plaintiff. Often, such agent is plaintiff’s employer.

Subcontractors are statutory agents in which provisions of contracts granted supervisory authority and where subcontractors exercised supervisory authority.

First Dept.

First Dept. 2023. Defendants Not Statutory Agents of Owner as Plaintiff’s Hiring Unknown to Defendants. Plaintiff hired by company having no authority to hire plaintiff. Plaintiff secretly hired & brought to site by a non-supervisory employee of Uplift, elevator subcontractor on the building renovation. Uplift employee hiring plaintiff not authorized by Uplift or any other contractor or owner to hire plaintiff to work at site & Uplift employee surreptitiously paid plaintiff in cash for his work after the accident. Defendants cannot be deemed statutory agents as not have supervisory control & authority over the work when plaintiff injured. Defendants thus had no control over work performed by plaintiff.Garcia v. 13 W. 38 LLC, 214 AD3d 408;

Scaffold Company

First Dept. 2022. 240(1) & 241(6) claims dismissed against Swing Staging, as Swing not contractor or owner within meaning of statutes. Nor was Swing a contractor’s or owner’s statutory agent. Although it contractually retained right to reenter premises & inspect scaffold system, Swing had no employees on site during 4 Star’s work & not inspect scaffold system while it was in place. Once Swing constructed scaffold system, it returned to premises only to deliver supplies & to disassemble scaffold system at end of project. Guevara-Ayala v. Trump Palace/Parc LLC, 205 AD3d 450;

Verizon

First Dept. 2021. Verizon Not Statutory Agent. 240(1) Action Dismissed. No evidence Version contracted for, directed or controlled, or benefitted from work plaintiff was performing for cable company at the time he was injured or was acting in capacity of an “owner” with 240(1).Plaintiff’s work replacing damaged cable equipment & reconfiguring its support system using J-hooks & anchors affixed to a utility pole amount to repairs and/or alteration to the equipment. No evidence Verizon had a right to insist plaintiff follow proper safety practice when performing work. Villalta v. Consolidated Edison, 197 AD3d 1078;

First Dept. 2018. 241(6) Dismissed as Subcontractor Exercised No Control Over Work Area or Injury Producing Work. 241(6) not automatically apply to all subcontractors on a site or in the chain of command. Rather, for liability under 241(6) to attach to a defendant, plaintiff must show the defendant exercised control, either over plaintiff or the work that caused plaintiff’s accident. Here, no evidence US roofing or A-Deck exercised control over plaintiff or the work giving rise to plaintiff’s accident. Adagio v. NYS Urban Dev. Corp., 161 AD3d 624;  

First Dept. 2018. 240(1) & 241(6) Dismissed. Debris Removal Outside Scope of Work Authority. Accident occurred when plaintiff slipped on debris while performing work in connection with design, fabrication & installation of window washing system that was subcontracted to Tractel as part of building construction. Since debris removal was not within scope of authority or work delegated to Tractel, Tractel not liable under 240(1) or 241(6) as statutory agent of GC. Nothing in subcontract delegating such work. Santiago v. 44 Lexington Assoc., LLC, 161 AD3d 444;   First Dept. 2012. Not a Statutory Agent. Plaintiff fell from wibbly ladder while engaged in work at Lincoln Center. JDP Mechanical not statutory agent for purposes of 240(1). JDP’s contract with Lincoln Center limited its responsibilities & potential liability to work it was hired to perform & oversee, which did not include plaintiff’s work. Plaintiff’s work was performed under separate contract between Lincoln Center and Integrated Building Controls. No evidence JDP controlled means & methods of plaintiff’s work or that it assumed overall authority to correct unsafe work conditions at project site. Betancur v. Lincoln Ctr. For the Performing Arts, Inc., 101 AD3d 429;  

February 26. New York. Labor Law §241(6). Industrial Code §23-9.7 (e).  Defendant Failed to Establish Truck Was Stationary at Time of The Accident.

Riding.

No person shall be suffered or permitted to ride on running boards, fenders or elsewhere on a truck or similar vehicle except where a properly constructed and installed seat or platform is provided.

Comment. 23-9.7(e) not apply to accident sustained while exiting a vehicle.  Accident must occur while vehicle is in transit.

Mendes v. State of NY, 2026 NY Slip Op 01048, decided Feb. 25, 2025, Second Dept. Claimant was mixing paint inside the back of box truck when such truck began to move. In response, Claimant attempted to exit through the back of the truck but coworker raised the lift gate of the truck. As Claimant ran towards the back of the truck, she lost her balance, fell, with her leg caught in the lift gate, sustaining injury.

Defendant failed to show 23-9.7(e) not apply. Defendant submitted affidavit from quality control officer who did not witness the accident but stated the truck was not moving. There was deposition testimony from the Claimant & co-worker the truck was moving at the time of the accident. Held that defendant failed to establish a prima facie case that the truck was stationary when the accident occurred & therefore §23-9.7(e) did not apply. The decision cited Wetter v. Northville Indus. Corp., 185 AD3d 874 (see below).

23-9.7(e) Sufficiently Specific to Support 241(6) Cause of Action

Fourth Dept. 2001. Clause v. EI du Pont De Nemours & Co., 284 AD2d 966; 

23-9.7(e) Dismissed

First Dept.

First Dept. 2017. 23-9.7(e) Dismissed. Raised boom on truck struck overhead sign causing plaintiff to be thrown from the truck. James v. Alpha Painting, 152 AD3d 447;

Second Dept.

Second Dept. 2020. 23-9.7(e) Not Apply. Only regulates transporting persons in truck or similar vehicle. Not apply to injuries sustained while exiting vehicle.Plaintiff injured when he jumped from flatbed of a stopped truck, not while riding in the truck. Also, 23-9.7(e) is silent as to egress from a truck & plaintiff’s interpretation requires a construction that would add to the 23-9.7(e)’s plan meaning. Wetter v. Northville Industries Corp., 185 AD3d 874;

Second Dept. 2017. 23-9.7(e) Dismissed. “Platform” includes platform of pickup truck.  Plaintiff injured riding on platform of pick-up truck. Plaintiff’s foreman instructed plaintiff to ride on the back of the truck, with the tailgate closed, to ensure plastic containers filled with loading tiles & concrete, remained in place.  When rear wheel of truck came into contact with retaining wall, truck came to sudden stop, plaintiff fell to the bed of truck. Code word “platform” must reasonably be read to include platform of pickup truck. Pruszko v. Pine Hollow Country Club, Inc., 149 AD3d 986;

Second Dept. 2016. 23-9.7(e) Dismissed as Plaintiff’s Actions Sole Proximate Cause of Accident. Plaintiff made the decision to forgo riding in the front passenger seat of the truck in favor of riding on top of a cast iron grate lying on truck’s open tailgate. Eddy v. John Hummel Custom Builders, Inc., 147 AD3d 16;

Second Dept.  2000. 23-9.7(e) Dismissed. Accident not occur while truck was in transit. Rather, accident occurred while plaintiff unloading materials from truck. Vargas v. State of NY, 273 AD2d 460;

February 25. New York. Labor Law §240(1) Imposed Where Permanent Part of Building Fell. However, No Analysis of Foreseeability That Permanent Part of Building Would Fall.  

5915 Larone Butler v. Marco Realty Assoc., LP, 2026 NY Slip Op 01006, decided February 24, 2026, First Dept. Plaintiff, working as demolition laborer for Always First, testified that a pipe measuring 8 inches wide & 10 feet long, fell from a ceiling while he was working underneath it. The pipe had been partially cut by another worker a “few hours” before the accident. In imposing §240(1) liability, appellate court held such pipe was an object that required securing & “plaintiff’s injury was the foreseeable consequence of the risk of performing the task without any safety device of the kind enumerated in §240(1).”

But a pipe measuring 8 inches wide & 10 feet long was a permanent part of the building. A falling permanent part of a building is outside the protection of 240(1).  First Dept. 2019. 240(1) Dismissed. Pipe saddle that detached from an overhead ceiling pipe assembly & struck plaintiff  was not an object requiring securing as it was a permanent part of the structure. Djuric v. City of NY, 172 AD3d 456.

First Dept. 2025. Moises-Ortiz v. FDB Acquisition LLC, 242 AD3d 550. FDB owned construction site & Pav-Lak was construction manager of demolition of existing building & replacing it with two-story property. Pav-Lak subcontracted foundation work to third-party defendant RNC Industries. Because the site was excavated below the grade of adjacent building, the plan called for work to underpin & support neighboring building’s foundation. Plaintiff, employee of RNC, in performance of the work, was struck by large piece of concrete that came loose from adjacent building’s newly exposed façade.

While §240(1) not apply to a falling object that is a permanent part of a building, an exception to the rule is if was foreseeable to defendants the permanent part of the building would fall. Decision noted, “Whether the collapse of a permanent structure is foreseeable is analyzed not in the strict negligence sense, but in the sense of foreseeability of exposure to elevation-related risk.” Decision held, “possibility of insecurity in the foundation developing after adjacent demolition was well known to defendants, as evinced by the need for a support plan in the first instance.”

In the 5915 Larone Butler case, the First Dept. analysis should have been whether it was foreseeable to defendants the pipe, partially cut a few hours before the accident, would fall, i.e., were there indications the partially cut pipe presented a risk of falling or whether subsequent work caused it to fall. If subsequent work, was it foreseeable such work would put the pipe at risk of falling from the ceiling location? What was missing from the decision here was any foreseeability analysis. While the decision stated, “foreseeable consequence of the risk of performing the task without any safety device of the kind enumerated in §240(1),” the issue was foreseeability of whether a permanent part of the building, i.e., the pipe, was secured, not a safety device.

February 24. New York. Collapse of Floating Ceiling Not Permanent Part of Building Because No Final Inspection & Sign-Off Occurred. §240(1) Liability Imposed.

Fernandez v. Sub 412 Assoc. , LLC, 2026 NY Slip Op 01009, decided Feb. 24, 2026, First Dept. While working as laborer on construction project, removing debris from floor, floating ceiling installed as part of the project collapsed on plaintiff. Appellate Court held defendants’ argument that floating ceiling was a permanent structure, requiring plaintiff to establish collapse of the floating ceiling was foreseeable for Labor Law §240(1) to apply, “was not persuasive.”

The decision held such argument was not persuasive because “no evidence was offered as to a final inspection of the structure that would precede a sign-off as to the drop ceiling’s completion.”  

Floating ceiling is defined as a type of suspended drywall ceiling installed independently from the walls. The drywall is hung from a metal grid & suspended from the ceiling joists. A floating ceiling is generally considered a fixture if it is permanently attached to the building’s structure. This is because the method of attachment, such as screws or nails, suggests that such ceiling was intended to be a permanent part of the building. (Stimmel, Stimmel & Roesner)

Comment. The decision holds a ceiling is not considered a permanent part of the building until a “final inspection” & “sign-off” occurs. A “final inspection” has been defined as a thorough review of the construction work by either building inspector, project manager, or both, to ensure all aspects of the project meet required building codes, standards & specifications of the building contract. (Alysed Construction). A “sign-off” is defined as an approval or acceptance of a project.  

As such, the Rule in the First Dept. is that a building structure is not “permanent” for purpose of §240(1) until there is final inspection & sign-off.  See decisions below where it was found §240(1) was dismissed as plaintiff was struck by a falling permanent part of building & reasonable foreseeability of such a dangerous condition.

 “Reasonable Foreseeability” of Falling Permanent Part of Building.

Architect’s field report dated 7 days prior to the accident of unsafe conditions and building completely open to elements.

A NYC violation issued the date of the accident described conditions as hazardous & cited failure to carry out demolition operations in safe & proper manner.

Foreseeable risk of floor capacity overloading.

Cracks in the flooring.

Permanent Parts of Building or Structure. 240(1) Dismissed or Plaintiff’s Motion Denied.

Pipe saddle that detached from an overhead ceiling pipe assembly.

Ductwork attached to ceiling.

Ceiling.

Balcony.

Non-Permanent Parts of Building or Structure. 240(1) Not Dismissed.

Uncompleted staircase.

Flange.

First Dept.

Foreseeability of Collapse. Not Extend to Anything Other Than Permanent Structures. First Dept. 2012. 240(1) Liability Imposed. Plaintiff, employee of subcontractor on Second Avenue Subway Tunnel Construction Project, injured while connecting pipes that were to be used to pour concrete using Tremie Concrete method. To perform such work, plaintiff stood on work platform located 8 feet above ground & was contained within metal cage known as tremie rack. This was rectangular structure 12 feet high. Court declined to extend foreseeability requirement to anything other than permanent structures that are not safety devices by their nature. Tremie rack was not in a fixed position but rather, rested upon wooden planks atop an uneven, gravel surface. Accident occurred as result of gravity related hazard created by elevation differential of tremie rack in which plaintiff was working & the tremie rack should have been secured to the ground. Plaintiff submitted testimony indicating accident would not have occurred had tremie rack been secured to the ground. Ortega v. City of NY, 95 AD3d 125;

February 24. New York. Labor Law §200 Not Dismissed. Owner Had Constructive Notice of Dangerous Condition: Presence of Algae.

Olecki v. BP 399 Park Ave., LLC, 2026 NY Slip Op 30484(U), decided Feb. 9, 2026, Hon. Phaedra Perry-Bond, Supreme Court, NY County. Cooling tower in condominium building experienced oil leak, requiring Atlantic to replace a pinion oil seal to stop the leak. To reach the area requiring repair, Atlantic’s employee, the plaintiff, was required to climb down from the top of the cooling tower. He then lowered himself onto a narrow 14-18-inch wide catwalk & then lowered himself further to stand on top of a drift eliminator in the cooling tower. When plaintiff’s feet touched the drift eliminator, the drift eliminator broke, causing plaintiff to fall 12 feet. Plaintiff not provided any wooden planks to put on surfaces like the drift eliminator to ensure a stable surface.

Plaintiff “believed” drift eliminator decomposed because of presence of moss or algae on the drift eliminator. Premises’ chief engineer could not recall the last time drift eliminators were cleaned & he never inspected them. Degradation of drift eliminator “coupled with the growth of algae is not the kind of condition that could have formed overnight.” As such, constructive notice may be inferred from its existence. Defendants’ motion to dismiss the Labor Law §200 cause of action denied.  Drift eliminators are specialized components in cooling towers designed to capture water droplets from the exhaust air, minimizing water loss, chemical emissions & environmental impact. (coolingtowerinfill.com)

February 23. New York. While Labor Law §200 Held by Court to be Abandoned by Plaintiff, Owner & GC  Must Still Offer Evidence Establishing Free of Negligence to Obtain Contractual Indemnification.

Comment. Where premises owner & GC seek toobtain contractual indemnification from a subcontractor, in addition to showing plaintiff’s accident arose from the subcontractor’s performance of work or negligence, owner & GC must establish there were free of negligence by obtaining dismissal of Labor Law §200 claim in a summary judgment motion.

Note the decision below that plaintiff’s abandonment of §200, as held by a court, fails to establish the owner and GC were free of negligence, resulting in denial of the indemnification claim. Such owner and GC have to offer evidence establishing being free from negligence.

Second Dept. 2024. As the motion court directed dismissal, as abandoned, of the causes of action of Section 200 and common law negligence as asserted against SHS Ralph, SHS contends it is entitled to contractual indemnification since its liability under 240(1) would only be vicarious as the premises owner. Court disagreed. The motion court directing dismissal, “as abandoned,” of the cause of action alleging a violation of §200 & common law negligence as asserted against SHS was not affirmative demonstration that SHS was free from negligence. Caracciolo v. SHS Ralph, LLC, 226 AD3d 861;

February 22. New York. Contractual Indemnification. First Dept. Decision Finding Conditional Indemnification Questionable. No Evidence Construction Manager Failed to Perform Its Contract Duties And No Evidence Offered of Premises Owners Free of Negligence.   

Plaintiff, a laborer, climbed atop of an 8-foot by 14-foot dumpster, approximately 4.5 feet in height, to place a tarp over the dumpster & to secure the tarp on the dumpster’s sides using wires. As plaintiff stood on the dumpster, a gust of wind “caught the tarp,” causing him to fall from the dumpster. Eighth and Seventh LP and Chelsea Leaf South owned the subject premises of the construction project. Eighth and Seventh LP entered into a contract with Flatiron Construction Corp. for Flatiron to be the construction manager.

Such contract contained an indemnification agreement stating Flatiron would indemnify the owners from “any and all claims … asserted against the owners by reason of any act or failure to act on the part of Flatiron in connection with the performance of the services hereunder which is in violation of the terms of this Agreement.

Flatiron, under the agreement with the premises owner, delegated authority to Flatiron to monitor subcontractors’ performance of the work, including their compliance with their safety obligations. Flatiron was compensated for the retention of a Safety Coordinator to secure safety & Flatiron was authorized to stop the work if it determined the work was not being done safely in accordance with the subcontract.  The subcontract agreement entered into by plaintiff’s employer required the employer to adopt and carry out any reasonable suggestions by the owners’ representative, i.e., Flatiron, to ensure site safety. Flatiron representatives testified of Flatiron’s duty to oversee safety on the project & stop the work if warranted.

The accident arose out of the work of plaintiff’s employer. The decision offers no evidence of Flatiron having notice of plaintiff climbing atop the dumpster, or of receiving complaints of such actions. Absent such evidence, there is no indication of “failure to act on the part of Flatiron in connection with the performance of the services” Flatiron was contracted to perform. Flatiron was not plaintiff’s employer & did not instruct plaintiff to climb atop the dumpster. Absent requisite evidence of Flatiron having such notice, Flatiron not obligated to stop the work or to indemnify the owners.

Further, the decision offers no evidence of whether the premises owners were free of negligence.  General Obligation Law §5-322.1 bars an entity from being indemnified for its own negligence. The decision offers no evidence premises owners had no notice of plaintiff standing atop a dumpster as a means of applying a tarp to the dumpster. Absent such evidence, the premises owners failed to establish a prima case for contractual indemnification, or even conditional indemnification.

February 22. Plaintiff’s Labor Law §240(1) Motion Denied. While Plaintiff Fell From Elevated Height, Was Such Work of Covering a Dumpster With a Tarp to be Performed at Elevated Height? Sole Proximate Cause, Not Comparative Negligence.

Carreno v. Chelsea Leaf S. Hous. Dev. Fund Corp., 2026 NY Slip Op 00971, decided February 19, 2026, First Dept. Plaintiff, a laborer at construction site, climbed atop 8-foot by 14-foot dumpster, which measured 4.5 feet in height, for purpose of placing a tarp over the dumpster & securing the tarp on the dumpster’s sides using wire. Plaintiff testified that while standing atop the dumpster. A gust of wind allegedly “caught the tarp,” causing plaintiff to fall off the dumpster. Plaintiff moves for summary judgment under Labor Law §240(1) alleging a fall from an elevated height.

Appellate Court denied plaintiff’s motion because plaintiff did not establish “he was engaged in elevation related hazard as that work was intended or supposed to be performed.” The decision did not deny plaintiff sustained a fall from an elevated height, bringing the accident within the protection of §240(1).

Rather, the decision went to whether plaintiff needed to perform such work at elevated height. The decision stated there was deposition testimony from other workers at the construction project that the “standard procedure for covering the dumpster involved several laborers working jointly at ground level to spread the tarp over the dumpster.”

The decision took into account deposition testimony of the “standard procedure” in covering a tarp at this project. As such “standard procedure” was for multiple workers to cover the dumpster with the tarp while standing on the ground, the decision is essentially holding that if plaintiff failed to observe such standard procedure of covering the dumpster with a tarp, plaintiff was sole proximate cause of the accident, a defense to §240(1) action.

Significance of the decision is that plaintiff’s act of standing on the dumpster was not held to be comparative negligence, which is not a defense to a §240(1) claim.  Rather, again, the decision is holding an issue of fact existed as to whether plaintiff’s act of standing on the dumpster was the sole proximate cause of the accident.

With an issue of fact as to liability, the credibility of plaintiff’s testimony as to being directed by an “unknown individual” to stand on the dumpster; that plaintiff was following example of other co-workers standing atop the dumpster; and that a gust of wind knocked him off the dumpster, will be decided by a jury. Do I think the court’s decision of an issue of fact was influenced by plaintiff’s testimony that a mere gust of wind was able to knock him off a dumpster? Absolutely.       

February 21. New York. Labor Law §240(1) Imposed Where 12-Foot A-Frame Ladder Was in Closed Position Because Plaintiff Could Not Open It.

Roque v. 240 Lincoln Place, LLC, 2026 NY Slip Op 0096, decided February 19, 2026, First Dept. Appellate Court noted the facts of the accident, “Plaintiff established prima facie entitlement to summary judgment on the §240(1) claim through his submission of undisputed evidence that the 12-foot A-frame ladder he was working on slipped out from underneath him while he was standing on it, causing him to fall and land on top of the ladder.

Based on these facts, appellate held, “Plaintiff’s decision to use an A-frame ladder in the closed position is not, in and of itself, a reason to declare him the sole proximate cause of the accident, as he provided a specific reason for using the ladder while it was still closed: he was unable to open it because of its size and weight.”  

Comment. So, plaintiff does not go with the usual reason for using a closed A-frame ladder, i.e., because of space constraints, the A-frame ladder could not be opened. Rather, plaintiff, a construction site worker, went with he was physically incapable of opening a 12-foot A-frame ladder.
There was no evidence cited in the decision that such 12-foot A-frame ladder was somehow defective or broken, preventing it from being opened. There was no statement in the decision whether plaintiff had, at some time prior to this accident, ever opened a 12-foot A-frame ladder with similar weight. No statements were offered in the decision as to what actions, if any, plaintiff took in attempting to open such ladder. There are no statements in the decision as to whether plaintiff made any attempt to spread apart the legs of the A-Frame ladder and/or use 1 or even maybe 2 hands by pushing down on the spreader bars on the 2 sides of the ladder. 

The decision cited no corroborating evidence of the construction worker’s claim of being physically incapable of opening a 12-foot A-frame ladder, i.e., no broken arms or fingers, no eyesight deficiencies.  Significantly, decision cited no evidence plaintiff was absent from construction school the day they taught how to open a 12-foot A-frame ladder. Decision did not say whether it was a wooden or aluminum ladder proving so devilishly baffling to open.

Despite such “missing” information, the appellate court did not even deem it necessary to deny SJ on issues of fact. No, on this record, SJ granted to plaintiff.

So, now there is precedent, in the First Dept., that where a construction worker testifies at a deposition he was physically incapable of opening a 12-foot A-frame ladder or maybe any type of A-frame ladder, resulting in a fall from the closed ladder, Labor Law 240(1) prima facie case is established. Call me crazy, but is this really the precedent an appellate department wants to own? See previous First Dept. decisions below.     

First Dept. 2022. Closed position ladder leaning against a wall.As plaintiff fell from a ladder unsecured & leaning against a wall in closed position because of obstructions in workplace established 240(1) liability. Castillo v. TRM Contr., 626, LLC, 211 AD3d 430;

First Dept. 2021. Worker’s decision to use A-frame ladder in closed position not a per se reason to declare worker sole proximate cause of accident. Worker gave specific reason why he used ladder in closed position. Morales v. 2400 Ryer Ave. Realty, LLC, 190 AD3d 647;

First Dept. 2015. Plaintiff’s deposition testimony established proximate cause of accident was his inability to open properly 12-14 foot A-frame ladder from which he fell because a pile of sheetrock being stored on the floor where he was working prevented him from doing so. As such, plaintiff not sole proximate cause of his accident & any negligence on plaintiff’s part in leaning against unopened A-frame ladder against the wall not defense to 240(1) action. Howard v. Turner Construction Co., 134 AD3d 523;

First Dept. 2015. Plaintiff gave specific reason why he used ladder in closed position. He testified that using ladder in open position & twisting his body to face a tank would have been exhausting, requiring him to take frequent breaks, which defendants not dispute. Court held, “we are hesitant to adopt a rule that, in order to permit a worker to enjoy protection of 240(1), would require such worker to take extraordinary measures to perform his work, when he has a good faith belief that doing so would cause him acute discomfort while drastically slowing his pace.” Noor v. City of NY, 130 AD3d 536;

First Dept. 2014. Plaintiff NOT Instructed Not to Use A-Frame Ladder in Closed Position. Not proximate cause of accident. While installing black iron into concrete ceiling, A-frame ladder plaintiff using “kicked out” from underneath him, causing a fall. Even assuming defendants presented sufficient evidence to raise issue of fact as to whether plaintiff, contrary to his deposition testimony, was using ladder by leaning it against a wall in folded position, defendants offered no evidence plaintiff not instructed to use the ladder in such a way. Fernandez v. 213 E. 63^rd St., LLC, 115 AD3d 514; 

First Dept. 2013. 240(1) Imposed. Debris prevented opening of ladder. Plaintiff fell from ladder as plaintiff descending the ladder. Plaintiff unable to open 12 foot aluminum ladder because of debris. Ladder wobbly & shook at times. Plaintiff complained about ladder to his supervisor & asked for another ladder. Plaintiff not given another ladder. While descending ladder, plaintiff’s foot got stuck on spikes that were on steps of ladder, causing a loss of balance & fall. Keenan v. Simon Prop. Group, Inc., 106 AD3d 586;   First Dept. 2008. 240(1) Liability Imposed. Ladder in closed position, leaning against boiler. As A-frame ladder, when opened, not tall enough to enable him to reach top of the boiler, he climbed the ladder while it was in closed position & leaning against a boiler. Ladder collapsed while plaintiff climbing ladder in closed position. Such action of plaintiff not sole proximate cause of accident given unsecured ladder on which he was standing & no other safety devices provided. Vargas v. NYC Tr. Auth., 54 AD3d 579; 

February 21. New York. Fraud. Appellate Court Denies Motion to Amend Answer to Allege Fraud. Appellate Court, Requiring Misrepresentations by Plaintiff, Can Find It in First Responder & Emergency Room Statements of Plaintiff.

Santacruz v. 58 Gerry St LLC, 2026 NY Slip Op 00997, decided Feb. 19, 2026, First Dept. Defendants brought a motion seeking to amend their Answer to the Complaint to assert affirmative defense & counterclaim for fraud based on a RICO Complaint, in an unrelated case, filed on September 6, 2024. Defendants alleged that “some of the attorneys who previously represented plaintiff in this action, and some of plaintiff’s medical providers, conspired to defraud insurer in workers’ compensation & third-party personal injury actions.”

Apellate Court denied such motion. “The unproven allegations of fraud against plaintiff’s former attorneys & medical providers in the RICO Complaint do not, without more, warrant an affirmative defense or counterclaim for fraud against plaintiff himself. Further held, “Even if, as defendants urge, plaintiff is the “Claimant A” referenced in that RICO Complaint, these unproven allegations of fraud are insufficient to support a claim for fraud against plaintiff.”

Appellate Court noted that while plaintiff shares & has shared an address with many other workers’ compensation claimants & personal injury plaintiffs that does not in & of itself establish plaintiff’s claims in this case are fraudulent. Also defendants did not plead justifiable reliance or resulting damages beyond “having incurred litigation costs as a result of plaintiff pursuing a fraudulent or frivolous claim.” To the extent plaintiff’s claims are frivolous, defendants may seek sanctions under CPLR 83030-a or 22 NYCRR §130-1.1.

Comment. A case cited in the decision was Dec. 10, 2024 First Dept. decision, Linares v. City of NY, 233 AD3d 479, where defendants also made a motion pursuant to CPLR 3025 to amend its Answer to the Complaint to assert a counterclaim for fraud based on the same RICO Complaint. In that case, appellate court denied defendants’ motion to amend its Answer because the counterclaim failed to allege any facts that plaintiff knowingly made material misrepresentations so as to support a fraud claim. “The unproven allegations of fraud against plaintiff’s attorney & medical providers in the RICO complaint do not, without more, warrant a counterclaim for fraud against plaintiff himself.”

Linares decision further held, “While defendants emphasize that plaintiff’s independent medical examinations corroborate his participation in the alleged scheme in that the physicians challenged the cause of plaintiff’s claimed injuries & necessity of his medical treatment, they fail to sufficiently plead what, if any, misrepresentations plaintiff knowingly made.” Knowing misrepresentations can be present in first responder & ER statements of plaintiff as to what injuries were sustained in the accident. How is lumbar surgery connected to complaints to ER care providers of injuring an arm? How is neck surgery related to “I hurt my knee?”

February 21. New York. Labor Law §240(1). Pallet Jack. Defendants’ Motion Denied. Issue of Fact as No Reason Submitted Why Coworker Lost Control of Pallet Jack Causing Load to Strike Plaintiff.

Torres v. 40 E. End Assoc. LLC, 2026 NY Slip Op 01001, decided February 19, 2026, First Dept. Plaintiff guiding a pallet of construction material being delivered to a work site. Coworker was moving such load using a pallet jack, which used hydraulic machine to raise the pallet up so it could be moved. As the coworker operating the jack began to move the pallet, wooden part of pallet broke, causing hydraulic machine to be stuck at the edge of the truck delivering construction material. Although coworker managed to free the hydraulic machine, he lost control of the lever, causing the full load of the pallet to fall on plaintiff’s foot.

Defendants’ motion denied as issues of fact existed as to sufficiency of pallet jack as safety device for moving the load of construction material. No evidence submitted as the reason the coworker could not control the pallet jack or why he could not hold onto it properly. As such, issue of fact whether jack itself was defective & failed to provide protection against a risk arising from  application of force of gravity to a heavy load during hoisting operation.   

Apellate Court decision also held Incident Report failed to state why coworker released the lever on the hydraulic machine. As such, it was held defendants not foreclose possibility of coworker losing control of the lever because the jack was defective or inadequate for the job being performed. Also, not clear whether author of Incident Report actually witnessed accident. At most, Incident Report raised issue of fact whether accident caused by human error.

Decision cited, Schoendorf v. 589 Fifth TIC LLC, 206 AD3d 416 (1st Dept. 2022), where plaintiff was attempting to move 400-pound elevator platform from the front of a flatbed truck to the tailgate. Such platform, 7-feet long, rested on a pallet jack that was too small for the platform. This caused the platform to dip, touching the flatbed truck surface. As plaintiff was lifting the platform 5 inches off the pallet jack in order to place a second pallet underneath it to facilitate moving the platform he injured his arm. Labor Law §240(1) was imposed by appellate court.

Decision also cited, Ali v. Sloan-Kettering Inst. For Cancer Research, 176 AD3d 561 (1^st Dept. 2019), an AC system coil weighing 300 pounds & being transported secured to 2 dollies, fell on his leg, while being unloaded from a truck. “In view of the weight of the coil & amount of force it was able to generate, even in falling a relatively short distance, such accident resulted from a failure to provide protection required by §240(1) against a risk arising from a significant elevation differential.”  

Comment. Although the decision not contain approximation of the weight the load of pallet jack striking plaintiff’s foot, decision states such accident involved “force of gravity.” For §240(1) to apply, worker need not be struck by overhead falling object. §240(1) also encompasses those objects at the same level as the worker that fall over, as occurred here with the load from the pallet striking plaintiff’s foot. Wilinski v. 334 E. 92^nd Hous. Dev. Fund Corp., 18 NY3d1 (2011), where pipes that were left standing, fell over, striking plaintiff, imposing §240(1) liability.

February 20. New York. Additional Insured (AI). “Completed Operations”

Comment. AI coverage extended under products/completed operations insurance for a year after the accident. AI subject to same policy conditions as the named insured.

First Dept.

First Dept. 2013. Roadway not breach its duty, under either purchase agreement or standard terms, to procure insurance naming Con Edison as AI with respect to plaintiff’s accident. Standard terms specified that Roadway obligated to maintain a products/completed operations insurance policy for “at least one year after completion of performance hereunder.”  While purchase order stated contract term ran for 2 year period from December 2000 to December 2002, work causing accident took place on January 26, 2001. As such, Roadway’s duty to maintain insurance with Con Edison as AI ended on January 26, 2002, one year after Roadway finished its work under contract & 4 months before accident. Evidence provided Roadway performed no work for Con Ed at all after Con Ed ordered it off work site on January 26, 2001. Con Ed asserted Roadway had a duty to maintain insurance for Con Ed until one year after the full contract term ended, December 17, 2003. Although contract not define “performance,” its language strongly suggests the terms” perform” and “performance” refer to actual physical labor Roadway was hired to do, not just Roadway’s theoretical availability to perform work for Con Ed. LaMorte v. City of NY, 107 AD3d 439; 

AI Coverage Extended Beyond Date AI’s Completed Operations.

Second Dept.

Second Dept. 2011. Insurer Scottsdale asserted the defendants’ status as AIs terminated on July 29, 2006, the date Metrotech completed its operations on subject construction project. As the date of completion predated the collapse, Scottsdale argued defendants no longer qualified as AIs & thus, Scottsdale had no duty to defend. Insurance provisions covering only ongoing operations or, conversely, not covering completed operations, are treated as policy exclusions. To be relieved of a duty to defend on basis of a policy exclusion, insurer bears heavy burden of demonstrating complaint allegations cast the pleading wholly within that exclusion, that exclusion is subject to no other reasonable interpretation & that there is no possible factual or legal basis upon which the insurer may eventually be held to be obligated to indemnify the insured under any policy provision.  Scottsdale failed to establish complaint allegations wholly within a policy exclusion. 492 Kings Realty, LLC v. 506 Kings, LLC, 88 AD3d 941;

Third Dept.

Third Dept. 2008. Issue of Fact as to AI coverage. Whether Work Ongoing When Accident Occurred. A golfer slipped & fell on newly constructed deck at club house owned by Saratoga National Golf Club. D&B constructed the deck & was insured by Great American Insurance.  Issue was whether the owner was AI on Great American policy. Such coverage depended upon whether D&B was still engaged in work at the time of the accident. There was a punch list showing further work needed to be done at the time the accident. Such evidence issue of fact as to AI coverage for owner. One Beacon Ons. v. Travelers Prop. Cas. Co. of Am., 51 AD3d 1198;  

Fourth Dept. Fourth Dept. 2010. “Ongoing Operations.” Failure of a dam. Term “ongoing operations” is interpreted broadly in NY. Work may be considered as ongoing during a short lapse of time necessary to conduct tests designed to assure proper performance where such testing is an essential element of the work by the insured. While major construction by Kubricky ended 2 months before the dam’s failure, inspection of the project by the engineer, which was required before Kubrick’s work was considered completed under the contract, had not yet occurred. In light of the nature of the project, such inspection was not merely a minor after the fact detail. As such, Town was AI. Town of Fort Ann v. Liberty Mut. Ins. Co., 69 AD3d 1261;

February 19. New York. Labor Law §240(1) Dismissed. While Lifting Cart on Rooftop, Plaintiff Struck by Cart. No Fall From Elevated Height Nor Struck by Falling Object.

Williams v. City of NY, 2026 NY Slip Op 00938, Second Dept., decided February 18, 2026. Plaintiff employed as laborer for Venture Solar, who was hired to install solar panels on the rooftops of Queensbridge Housing Project in Queens. Plaintiff & coworkers instructed to move a “moon cart” from one rooftop to adjacent rooftop that was 2 feet higher & separated by a gate. Moon cart or buggy allows for movement of tools & materials on a job site with rough & irregular surfaces.

Workers decided to move such moon cart by lifting it above their heads & passing it over the gate. As plaintiff lifted one corner of the moon cart while he stood on the rooftop, such moon cart hit plaintiff in the head, causing a fall. As the decision does not state plaintiff fell off the roof, there was no fall from elevated height.

§240(1) dismissed as accident not caused by elevation-related or gravity-related risk required for a §240(1) violation. The decision cited Christie v. Live Nation Concerts, Inc., 192 AD3d 971 (2^nd Dept. 2021), where §240(1) claim dismissed where plaintiff injured his knee carrying “heavy steel truss” with 4 coworkers on level ground. Also cited was Garcia v. Edgewater Dev. Co., 61 AD3d 924 (2^nd Dept. 2009), where plaintiff injured when a panel of drywall struck his back as he was unloading it from a raised platform & pulling it through an open second-story window.

Comment. While plaintiff in Williams v. City of NY suffered a fall at elevated height, i.e., a rooftop, plaintiff falling to the roof established there was no fall from an elevated height & there was no falling object. Rather, plaintiff was holding the object, i.e., the moon cart, when he was struck by such cart. Absent such facts, §240(1) was dismissed as a matter of law.          

February 18. Appellate Court Denied Defendant’s Motion to Compel Discovery of Documents Related to Litigation Funding.

Perdomo v. 361 E. Realty Assoc. LLC, 2026 NY Slip OP 00860, decided Feb. 17, 2026, First Dept. It was held defendant GFE E. Fordham Road LLC, failed to show “why the funding documents are material & necessary to a defense of this action. The amount & source of litigation funding is not a subject of plaintiff’s claims for damages, and GF has not explained how discovery of funding documents would support or undermine any particular claim of defense.”

The decision further held, “GF also offers no basis for its theory that litigation funding documents would shed light on plaintiff’s motivation for bringing the action, and it is otherwise unclear how those documents would be of assistance in revealing any improper motive.”

Decision noted that because litigation funding is in the form of a loan that plaintiff is obliged to repay, it does not qualify as a collateral source on which GF is entitled to discovery under CPLR 4545. “… to the extent that GF is entitled to information regarding whether plaintiff is actually under an enforceable obligation to repay, that information may be obtained through interrogatories  or depositions.” Decision also held that GF presented no evidence “to support its assertion that a litigation funding company may, as an interested lienholder, have veto power over any potential settlement & therefore could impede a resolution of the action.”

Decision also held, “Any assertion that the litigation funding is affected by fraud is speculative. Although GF states that the doctors and facilities that treated plaintiff were named in various civil RICO actions alleging fraudulent treatment & billing practices, GF presented no evidence of misconduct by plaintiff’s doctors or his attorneys in this action, nor does GF state which of plaintiff’s medical providers were named in the RICO actions.

Lastly, the decision noted that the “fact that almost none of plaintiff’s treatment costs were billed to Medicaid, even though plaintiff is a Medicaid recipient does not suggest that plaintiff & and his treatment team have engaged in fraud. In fact, it is entirely plausible that plaintiff elected to obtain treatment from medical providers that did not accept Medicaid & that plaintiff was willing to pay the borrowing costs of funding for that treatment.” Comment. As there are currently several actions pending against lawyers & medical providers alleging, in part, conducting surgeries that were not needed, such funding documents may offer information as to whether such funding loans were contingent upon a worker having such surgery. GF’s request for funding documents is premised, in part, upon who made the decision for a worker having surgery & who chose the surgeon. GF is seeking to know what power, if any, did the funding loan company have over a worker’s medical treatment. Appellate court’s decision turns a blind eye to the power of the purse.  

February 18. §240(1). Plaintiff’s §240(1) Motion Denied as Issue of Fact Whether Plaintiff a Recalcitrant Worker.

Scanlon v. South St. Seaport LP, 2026 NY Slip Op 00864, decided Feb. 17, 2026, First Dept. Plaintiff’s summary judgment motion on §240(1) from falling off ladder denied as questions of fact whether plaintiff sole proximate cause of accident. That plaintiff could not describe how accident occurred immediately after the accident not bar recovery under §240(1) claim. Plaintiff’s account of accident not lack credibility; there were physical manifestations of injury & plaintiff rendered incoherent from accident. None of workers onsite offered alternative version of accident or facts inconsistent with plaintiff falling off a ladder.

However, plaintiff’s summary judgment motion denied as questions of fact existed whether plaintiff’s actions were sole proximate cause of accident. Contradictory evidence whether plaintiff’s employer, Kenvil United, provided subject ladder. Plaintiff testified unsafe to use “separated extension ladder.” Evidence of other safe & readily available means of access to the worksite.

Comment. The precedent is that if there are no witnesses to a fall from elevated height but plaintiff’s deposition testimony is credible & not contradicted, summary judgment on §240(1) cause of action is granted. That did not happen here. The decision stated, “contradictory evidence whether plaintiff’s employer, Kenvil United, provided the ladder.” However, if a ladder was defective, §240(1) is not contingent upon who provided the ladder.

It appears §240(1) motion of plaintiff was denied because of issue of fact whether plaintiff was “recalcitrant worker.” Decision cited plaintiff’s deposition testimony that he was aware it was unsafe to use “separated extension ladder” & because of evidence of availability of safer means than the extension ladder to gain access to the worksite. The rule is a worker is “recalcitrant” if safety equipment is provided to worker by his employer & worker opts for no good reason not to use such equipment, resulting in the accident.

If worker is found to be “recalcitrant,” it is a defense to §240(1) action as worker is held to be proximate cause of the accident. While appellate decision not use the term “recalcitrant,” it appears it was the reason for denying plaintiff’s motion on §240(1).  

February 17. Labor Law §241(6). Industrial Code 23-1.20.  Chutes.

• Chute Enclosures.  Wooden or metal chutes used for the removal of material and debris from elevated levels of a building or other structure and which are at an angle of more than 45 degrees from the horizontal shall be entirely enclosed on all sides and the top, except for openings used for the receiving and discharging of material and debris.  Such necessary opening shall not exceed 48 inches in height, measured along the wall of the chute, and all openings shall be covered when not in use.  Chutes which are at an angle of 45 degrees or less from the horizontal may be open on the upper side. 
• Chute Construction.  Every chute more than 24 inches in maximum inside dimension shall be constructed of planking at least 2 inches thick full size, exterior grade plywood at least three-quarters inch thick or sheet metal at least three-sixteenths inch thick. Every chute shall have a metal bottom where the material or debris strikes the chute and every chute shall be rigidly supported throughout its height. A substantial gate shall be constructed and installed at the lower end of every loading chute to control the loading of material or debris into trucks and to cover the chute opening at all other times. Splash boards or baffles shall be installed on every chute to prevent materials or debris from rebounding onto the street, sidewalk or any other area adjacent to the discharge end of the chute.
• Protection at chute openings. A bumper or curb not less than 4 inches by 4 inches in section shall be provided at each chute opening where such opening is level with or below the level of the floor or platform. Every space between the chute and the edge of the opening in a floor or platform shall be solidly planked.
• Danger signs. AS sign reading, “DANGER”, shall be placed in a conspicuous location at the discharge end of every chute to warn persons employed in or lawfully frequenting the area of the chute of the potential overhead danger. Lettering on such signs shall be not less than 6 inches in height with letter strokes not less than three-quarters inch in width and shall be of such color as will contrast with the background.

Comment. Such code usually arises in the context of demolition where a no longer functioning elevator becomes a chute for debris removal. 

23-1.20(a) Violated

Second Dept.

Second Dept. 2021. 23-1.20(a) Applicable to debris ricocheting out of bottom of elevator shaft being used as chute for debris. Plaintiff working as laborer on demolition project. A former elevator shaft was converted into a debris chute for such demolition project.  Workers dumped debris into the chute from floors above.  Debris would accumulate at basement level.  While working at basement level near the shaft, plaintiff struck by bricks which ricocheted out of the bottom of shaft.  It was held 23-1.20(a) applicable to such accident. Rivas-Pichardo v. 292 Fifth Ave. Holdings, LLC, 198 AD3d 826;

Second Dept. 2008. 23-1.20 Violated. Plaintiff engaged in demolition work where old elevator shaft was used as chute for disposal of debris removed by workers on upper floors.  Plaintiff struck by wood falling into the elevator/chute. Parrales v. Wonder Works, 55 AD3d 579;

23-1.20 Dismissed

Second Dept.

Second Dept. 2014. 23-1.20 Not Factually Applicable. Fall From Ladder. Plaintiff fell from 6 foot A-frame ladder while engaged in construction work. Karanikolas v. Taverna, 120 AD3d 552;

Second Dept. 2010. 23-1.20 Not Factually Applicable. Struck by Debris While Standing at Ground Level. Plaintiff standing 10-18 feet away from dumpster was struck by bag of construction debris thrown from roof of a building. Fried v. Always Green, LLC, 77 AD3d 788;

Third Dept. Third Dept. 1998. 23-1.20 Not Apply to Wooden Planks Used to Unload Pipes From a Truck. While rolling pipes off a truck by a wooden ramp created by plaintiff & coworker, entire load of pipes rolled off the truck, with plaintiff being struck by a pipe.  The “chute” contemplated by 23-1.20 is in the nature of a conduit used to remove materials and debris from elevated levels of a structure down to a truck.  Held that 23-1.20 inapplicable to planks wedged against a truck & used for the purpose of unloading pipe. Curley v. Gateway Communications, Inc., 250 AD2d 888; 

February 17. New York. Labor Law §241(6). Industrial Code 23-1.13(b)(4). Electrical. Protection of Employees.

No employer shall suffer or permit an employee to work in such proximity to any part of an electric power circuit that he may contact such circuit in the course of work unless the employee is protected against electric shock by de-energizing the circuit and grounding it or by guarding such circuit by effective insulation or other means. In work areas where exact locations of underground electric power lines are unknown, persons using jack hammers, bars or other hand tools which may contact such power lines shall be provided with insulated gloves, body aprons and footwear.

Fourth Dept. 2019.    Winters v. Uniland Dev. Corp., 174 AD3d 1293;

23-1.13(b)(4) Sufficiently Specific to Support 241(6) Cause of Action

First Dept. 2022.  Henry v. Split Rock Rehab. & Health Care Ctr., 205 AD3d 540;

Fourth Dept. 2009. 23-1.13 Applies to persons employed in construction, demolition & excavation, to their employers,  owners, contractors & their agents, obligated to provide safe working conditions & safe places to work.  Court rejected contention 23-1.13(b)(4) & (5) not apply as such codes refer only to employers & employees.Johnson v. Ebidenergy, Inc., 60 AD3d 1419;

23-1.13(b)(4) Violated or Issue of Fact

Comment. 23-1.13(b)(3) & (4) can be violated when worker suffers electrical shock after coming into contact with a live wire while engaged in work. Liability lies with failing to de-energize such wires prior to work commencing.    

Terms Used in 23-1.13(b) Cases.

Junction Box. Defined as metal or plastic protective box where wires are interconnected. Junction boxes are found in walls, ceilings or concrete & can be indoors or outdoors. Junction boxes contain wires of different colors for different functions & circuits.

Splice Box. Is housing in which fiber optic cables begin or end. Splice boxes are also used to contain splices in underground cables & electric lines. Splice boxes are also used to protect spliced wire connections between an electrical control panel & pumping equipment.

De-energize. To disconnect from a source of electricity or to deprive of electrical energy.

Grounding. Is the process of removing excess charge from an object by transferring electrical charges from a short circuit between this object & another larger object.

23-1.13(b)(4) Violated or Issue of Fact

Worker struck by live wire.

Live wire hanging from ceiling.

Circuit not de-energized or grounded.

Whether protection equipment sufficient.

Precaution as to wires in junction boxes.

First Dept.

First Dept. 2023. Issue of Fact as to Applicability of 23-1.13(b)(3 & (4). Plaintiff electrocuted working in underground garage when chisel of jackhammer he was using came into contact with electrical conduit affixed in concrete column. Electricity in garage supposed to be turned off while demolition work being performed. Presence of live electrical conduit violation of Industrial Code 23-1.13(b)(3) & (4). However, other evidence suggesting electrocution resulted from loose wire striking plaintiff’s leg. With such conflicting evidence creating issue of fact, plaintiff not entitled to summary judgment on 241(6) cause of action. Ruiz v. Roosevelt Terrace Coop, Inc, 212 AD3d 487;

First Dept. 2019. 23-1.13(b)(4) Violation. Worker Struck by Live Wire. Defendants argued 23-1.13(b)(4) uses the word “or” to establish that a circuit can be rendered safe for workers by de-energizing & grounding OR guarding it by effective insulation or other means. Defendants thus contended that as wiring was insulated & housed in splice box with a screwed in cover, defendants complied with the code & not obligated to de-energize & ground the wiring.  However, while performing his work, plaintiff was permitted to come into contact with electrical circuit not de-energized. Plaintiff asked to disconnect electrical wiring throughout the office & to do so, needed to cut through the wires directly. As such, degree of insulation not relevant & circuit not guarded by other means. Wolodin v. Lehr Construction Corp., 177 AD3d 496;

First Dept. 2017. 23-1.13(b)(4) Violated Where Live Wires Hanging Down From Ceiling. Plaintiff’s deposition testimony & affidavit by plaintiff’s supervisor, who did not witness accident but arrived shortly thereafter, provided plaintiff performing work task of installing pins in drop ceiling when he received electrical shock.  Exposed, uncapped electrical wiring observed hanging from ceiling where plaintiff working. Coworker observed electricians who were working in building, come to accident site & capping exposed wires. Plaintiff awarded summary judgment on 23-1.13(3) & (4). Haynes v. Boricua Vill. Hous. Dev. Fund Co., 170 AD3d 509;

First Dept. 2017. 23-1.13(b)(3) & (4) Violated. Plaintiff’s Work Brought Plaintiff Into Contact With Live Electrical Wire. Violations of 23-1.13(b)(3) & (4) proximately caused injuries sustained by plaintiff when metal part of plaintiff’s safety harness contacted live electrical wire, known as BX cable, hanging down from drop ceiling of building under renovation. Owner & GC may be held liable for violations of those codes even though they impose obligations on employer, as they have a nondelegable duty to provide adequate safety protections. No evidence of comparative negligence as plaintiff pursuant to foreman’s instructions & neither knew nor should have known cable was electrified, in absence of warnings to avoid area. Rubino v. 330 Madison Co., LLC, 150 AD3d 603;

First Dept. 2017. Violation of 23-1.13(b)(4). Code requires workers who may come into contact with an electric power circuit be protected against electric shock “by de-energizing the circuit and grounding it or by guarding such circuit by effective insulation or other means.”  As plaintiff was shocked, it demonstrated the circuit was not de-energized, grounded, or guarded by effective insulation. O’Leary v. S&A Elec. Contr. Corp., 149 AD3d 500;

First Dept. 2013.  Defendant’s SJ Motion Denied.  Electrical Cable not De-Energized And Protective Equipment not Provided. While plaintiff involved in project to excavate a roadway to install telecommunications equipment, he used a power saw to cut into a street intersection and struck a cable encased in a concrete conduit, owned by Con Ed, which electrocuted him.  Plaintiff raised issue of fact by submitting affidavits of two experts who explained that the cable was not de-energized, grounded, or effectively insulated, and that plaintiff was not provided with insulated protective gloves, body aprons and footwear while using a power saw that might make contact with underground power lines. Addonisio v. City of NY, 112 AD3d 554;

First Dept. 2013. Violation of 23-1.13(b)(4).  Plaintiff standing on A-frame ladder when struck on side of face by a live, energized & exposed electrical wire. As he pulled away from the wire, ladder wobbled & moved, causing a fall. Code sections 23-1.13(b((3) & (4) are clear & specific that before work is started, it is to be ascertained whether work will bring worker into contact with electric power circuit & if so, worker not be permitted to come into contact with the circuit without it being de-energized.  Here, live circuit in ceiling hit plaintiff in face & was proximate cause of accident.  DelRosario v. United Nations Federal Credit Union, 104 AD3d 515;   

Second Dept.

Second Dept. 2001. 23-1.13(b)(4) Not limited to incidents with actual contact with energized circuits.  Issue of Fact whether protective equipment sufficient where explosion occurred while electrical circuit energized. Bardouille v. Structuretone, Inc., 282 AD2d 635;

Third Dept.

Third Dept. 1999. Issue of Fact as to Violation of 23-1.13(b)(4) & (5). Whether Defendant Took Precautions as to Wires in Junction Box. While plaintiff tested electrical circuits & believed such circuits to have been de-energized prior to commencing his work, issue of fact was whether defendant violated 23-1.13(b)(4) by failing to take adequate precautions to ensure the wires in junction box with which plaintiff was working were properly de-energized. Adams v. Owens-Corning Fiberglass, 260 AD2d 877; 

Third Dept. 1997. 23-1.13(b)(4). Issue of fact. Plaintiff made decision to complete all pre-shutdown work while transformer remained energized. Finch, Pruyn & Co., Inc. v. M. Wilson Control Servs., Inc., 239 AD2d 814;

Amend Bill of Particulars to Add 23-1.13(b)(4)

First Dept. 1998.  No facts in addition to those alleged in plaintiff’s complaint or bill of particulars, or inquired into at his deposition, are or need to be alleged to make out a 23-1.13(b)(4) violation. Transit Authority’s own records indicated that the fire causing plaintiff’s injuries was caused by an explosion caused by a piece of equipment plaintiff was using coming into contact with the live third rail.    Snowden v. NYCTA, 248 AD2d 235;

No Evidence of Comparative Negligence Under 23-1.13(b)(4) First Dept. 2017. 23-1.13(b)(3) & (4) Violated. Plaintiff’s Work Brought Plaintiff Into Contact With Live Electrical Wire. Violations of 23-1.13(b)(3) & (4) proximately caused injuries sustained by plaintiff when metal part of plaintiff’s safety harness contacted live electrical wire, known as BX cable, hanging down from drop ceiling of building under renovation. Owner & GC may be held liable for violations of those codes even though they impose obligations on employer, as they have a nondelegable duty to provide adequate safety protections. No evidence of comparative negligence as plaintiff pursuant to foreman’s instructions & neither knew nor should have known cable was electrified, in absence of warnings to avoid area. Rubino v. 330 Madison Co., LLC, 150 AD3d 603;

February 16. Subcontractor Scaffold Company Failed to Show It Was Not a Statutory Agent of Premises Owner or GC as to Labor Law 240(1) & 241(6) Liability.

Galvez v. City of NY, 2026 NY Slip Op 30310(U), decided Jan. 2, 2026, Hon. Francis Kahn, Supreme Court, NY County. Plaintiff, employed by Technico Construction, injured at construction site when he jumped from extension ladder onto a sidewalk shed. Premises owned by NYCHA who contracted with Technico to perform exterior brickwork restoration & roofing replacement. Technico was hired by NYCHA as the GC. Technico subcontracted defendant CMC Environmental to perform asbestos work & also subcontracted with Roma Scaffolding.

Scaffold company, Roma, built the sidewalk shed at the direction of the GC, Technico. There was testimony that Roma builds sidewalk sheds according to plans prepared by a professional engineer that is typically retained by the GC. Once Roma completes the building of the scaffold, its workers leave the site, taking any ladders they used with them. Roma does not provide ladders for other workers at the site. Once Roma completes the installation of the sidewalk shed, the project’s GC maintains the shed.  

Here, Roma only provided its general standards & practices at project sites. Roma’s witness did not know any details from the subject project. There was no evidence as to who designed the sidewalk shed; when Roma’s work began at the project; when Roma completed installation; when Roma left the site; and whether Roma was ever called back to the site.

Comment. Subcontractors are hired by premises owner or GC, or even another subcontractor, usually by written contract or written agreement, to perform a specific portion of the work.

For a subcontractor to be liable under 240(1) or 241(6), it must be a statutory agent of the premises owner or GC. If not such a statutory agent, 240(1) & 241(6) claims are dismissed against the subcontractor. 

Subcontractors are statutory agents when delegated authority, by the premises owner or GC, to supervise & control injury producing work. Being delegated the authority, subcontractor is in a position of implementing safety measures for specific work being performed under its control & supervision.

Subcontractor a Statutory Agent of Premises Owner or GC. 240(1) & 241(6) Liability.

1. When control & supervision of work is delegated by written terms in a subcontract or agreement.

2. A particular job at work site is delegated to subcontractor. Subcontractor obtains from the premises owner and/or GC supervisory control & authority over the injury producing work.

3. Determinative factor is whether defendant had authority to exercise control over the work, not whether it actually exercised that right.

4.Where owner or GC delegates to a third party the duty to conform to requirements of the Labor Law, the third party is statutory agent.

5. When a subcontractor contracts out the work to another subcontractor, the initial subcontractor remains a statutory agent of the owner or GC. Statutory agent status is not removed because the subcontractor subcontracts out the work to another.       

Subcontractor Supervisory Control & Authority Over Work Being Performed

1. Control over the means and methods of the injury producing work.
2. Control over safety precautions for workers.

Court of Appeals

Statutory Agent to Owner of GC. 240(1) & 241(6) Liability.

Court of Appeals. 2015.As there was testimony that it was part of IMS’s responsibility to ensure a guardrail system was in place & manhole cover was replaced once the system was removed, issue of fact whether IMS was a statutory agent under 240(1).Barreto v. Metropolitan Transp. Auth., 25 NY3d 426;

Court of Appeals. 2005.Subcontractor deemed to be agent of owner or GC when it has ability to control work activity which brought about accident.Walls v. Turner Constr. Co., 4 NY3d 861

Court of Appeals. 1981. When the work … has been delegated to a third party, that third party then obtains the concomitant authority to supervise & control that work & becomes a statutory agent of the owner or GC. Only upon obtaining the authority to supervise & control does the third-party fall within the class of those having nondelegable liability as an agent under section 240 & 241. Russin v. Louis N. Picciano & Son, 54 NY2d 311 (1981).

Statutory Agent. Subcontractor Delegated Authority to Control & Supervise Injury Producing Work. 240(1) & 241(6) Liability.

First Dept.

First Dept. 2022. Defendants Taconic & W5 subject to vicarious liability under Labor Law 240(1) as statutory agents of One City Block, owner of construction site, as these 2 entities had authority to supervise & control the work that brought about accident. Corleto v. Henry Restoration Ltd., 206 AD3d 525;

First Dept. 2022. As JA had authority to supervise & control injury producing work, it was liable as statutory agent under 240(1) and 241(6). Winkler v. Halmar Intl., 206 AD3d 508;

First Dept. 2020. Contractor was statutory agent. Martone was given authority to control the activity bringing about the injury. Martone’s foreman testified that Martone provided temporary protection against drain holes while awaiting plumbers to install permanent protection. It used limestone for such purposes and the foreman was responsible for ensuring such bags were in place until the installation of the permanent protection. Wenk v. Extell W. 57^th St., LLC, 188 AD3d 550;

First Dept. 2018. Labor Law 240(1) and 241( 6) impose absolute liability on owners, contractors and their agents for a statutory violation, regardless of whether they directed or controlled the work.  As such, the test of whether defendant is a statutory agent subject to Labor Law liability under such sections is not whether it actually supervised the work, but whether it had the authority to do so. While Continental’s resident manager may have been unaware of what tasks Rose Associates was performing as Continental’s managing agent, no evidence Rose Associates lacked such authority. Merino v. Continental Towers Condominium, 159 AD3d 471;  

First Dept. 2012. Evidence showed P&P was statutory agent of owner. P&P had plenary authority over the work at the site, including work being performed by plaintiff at time of accident. Testimony of P&P’s owner riddled with contradictions & memory failure. Although owner & his brother both worked at the site, owner could not recall whether P&P hired either company or day laborers to assist them with the job. Owner offered no explanation as to how plaintiff came to be performing a portion of the work P&P had agreed to perform for Charmer. Muriqi v. Charmer Indus. Inc., 96 AD3d 535;

Subcontractor Responsible For Road Safety Conditions

First Dept. 2022. Contractor Was Statutory Agent. J&A was delegated authority to control the activity bringing about the injury, including responsibility to provide barriers, flagmen, & to post danger signs. Plaintiff struck by excavator. Herrera v. Kent Ave. Prop. III LLC, 203 AD3d 512;

Electrician

First Dept. 2020. As ADCO delegated authority to control electrical work giving rise to plaintiff’s injury, it was statutory agent subject to liability under statute. Higgins v. TST 375 Hudson, LLC, 179 AD3d 508;

First Dept. 2017. As Petrocelli Electric, electrical contractor, remained on the job site & the dangerous condition arose from the work delegated to Petrocelli Construction, which it was in a position to control, it was an agent of owner and/or GC subject to liability under 241(6). Schaefer v. Tishman Constr. Corp., 153 Ad3d 1169; 

Scaffold Rigger

First Dept. 2012. Licensed Rigger of Scaffolds. Plaintiff & 2 coworkers were assigned to work together on 50 foot suspended scaffold that broke in two. Defendant contractors were aware scaffold had a two man capacity & that 3 workers were nonetheless assigned to work together from the scaffold & that there was no other adequate safety equipment made available to workers. Liberty, as the only licensed rigger of the scaffolds on the job site, a statutory agent for purposes of 240(1). Liberty had obligation to supervise & control conduct of workers that manned the scaffolds.  Nenadovic v. PT Tenants Corp., 94 AD3d 534;

Subcontractor & Its Sub-Subcontractor Both Agents Under 240(1)

First Dept. 2022. 240(1) Liability. Statutory Agent. Plaintiff pulling floor bluffing machine up a ramp placed over stairs when top part of the ramp came loose and slid down the other 2 sections, taking plaintiff and buffing machine to the sidewalk. Accident occurred on front steps of a church undergoing renovation. Church retained defendant McGovern as GC & McGovern retained plaintiff’s employer. Church contracted with Peragallo for refurbishment of its pipe organ & Peragallo retained Marshall to transport the pipe organ back to the church from Peragallo’s warehouse. Marshall constructed the ramp for transporting organ. Held that Peragallo was statutory agent of church as church delegated refurbishing & transporting of organ to Peregallo & contract between them stated Peragallo “shall be responsible for and shall supervise and direct all the work.” Peragallo then delegated transport portion of work to Marshall who had authority to supervise & control the work, including assembly of the ramp. Both Peragallo & Marshall liable under 240(1). Royland v. McGovern & Co., LLC, 203 AD3d 677;

First Dept. 2012. Plaintiff, an electrician, was employed by Petrocelli, installing cables for security system at post office. Performing such work, plaintiff fell from A-frame ladder. Defendant ADT hired to install closed circuit televisions & ADT subcontracted wiring aspect of job to Petrocelli. ADT was statutory agent of US Marshalls Service, which hired ADT for installation of security system. ADT had authority to supervise and control work being done by plaintiff pursuant to terms of subcontract with federal government. ADT demonstrated this authority by subcontracting a portion of such installation to plaintiff’s employer. Fact that Petrocelli possessed concomitant or overlapping authority to supervise the wire installation did not negate ADT’s authority to supervise and control installation of wires. Whether ADT actually supervised plaintiff was irrelevant. Tuccillo v. Bovis Lend Lease, Inc., 101 AD3d 625;  

First Dept. 2011. Sub-Contractor Having Authority Over Subcontractor Was Statutory Agent of GC. Plaintiff fell 15 feet through unprotected hole in floor of construction site. Insufficient safety devices provided to plaintiff. Century had contractual supervisory authority over work performed by its subcontractor, Rebar, plaintiff’s employer, & was therefore a statutory agent of construction manager, Tishman, even if it did not exercise that supervisory authority with respect to plaintiff’s particular task. Burke v. Hilton Resorts Corp., 85 AD3d 419;

Second Dept.

Authority to Exercise Control & Supervision Over Injury Producing Work

Second Dept. 2024. Lemark failed to demonstrate it was not an agent of the GC, Blue Water, for purposes of liability under 240(1) and 241(6). Lemark failed to demonstrate it lacked ability to supervise & control the work that resulted in the accident. Issue of fact as to role GC & Lemark played in the renovation work, which entity was supervising plaintiff & which entity supplied the ladder causing the accident. Moran v. Trustees of Columbia Univ. in the City of NY, 224 AD3d 830;  

Second Dept. 2022. A party is deemed to be agent of owner or GC under Labor Law when it has the ability to control the activity bringing about the injury. Southerton v. City of NY, 203 AD3d 977; 2021. Kavouras v. Steel-More Contr. Corp., 192 AD3d 782;

Second Dept. 2017. To hold defendant Munoz liable as contractors or agents for 240(1) liability and 241(6) there must be a showing Munoz had the authority to supervise and control the work. Determinative factor is whether party had the right to exercise control order the work, not whether it actually exercised that right. Munoz failed to establish it was not agent of owners or contractors. Johnsen v. City of NY, 149 AD3d 822; 

Second Dept. 2016.  A party is deemed an agent of owner or GC under Labor Law when it has supervisory control & authority over the work being done where a plaintiff is injured. Scales v. Trident Structural Corp., 142 AD3d 1153.

Framing Company

Second Dept. 2022. Framing Company.  Section 240(1) Liability as Statutory Agent of Owner or GC. Plaintiff performing framing work on a building under construction when he stepped on unsecured wooden beam, which flipped over & fell out from underneath him, causing him to fall 15 feet to the floor below. Plaintiff made prima facie showing of entitlement to judgment on 240(1) action by submitting transcript of his deposition testimony, his affidavit, & affidavit of coworker witnessing the accident. Evidence showed defendants failed to provide plaintiff with adequate safety devices. South Ocean Framing Corp. was a statutory agent of owner & GC as it had the authority to supervise and control particular work in which plaintiff was engaged at time of accident. Mogrovejo v. HG Hous. Dev. Fund Co., Inc., 207 AD3d 457;

Plumbing Company

Second Dept. 2018. Plaintiff demonstrated NY Plumbing had authority to exercise control over plaintiff’s work, even if it did not actually do so.  As such, NY Plumbing proper defendant under Labor Law. Padilla v. Park Plaza Owners Corp., 165 AD3d 1272;

Asbestos Abatement Company

Second Dept. 2018. Plaintiff fell from a ladder while engaged in asbestos abatement work at a high school. Plaintiff made a prima facie showing of 240(1) liability through his deposition testimony, which demonstrated that the ladder on which he was working moved for no apparent reason. School district contracted with Arrow Steel to replace windows and doors and perform asbestos abatement work. Arrow Steet contracted with plaintiff’s employer, E&A, to perform asbestos work. Arrow Steel had authority to enforce safety standards and chose subcontractor for asbestos work. Also, Arrow Steel directly retained plaintiff’s employer, E&A, & having authority to exercise control over the work, even if it did not actually do so. Arrow Steel was agent of owner & subject to 240(1) liability. Cabrera v. Arrow Steel Window Corp., 163 AD3d 758; 

Subcontractor Supplying Scaffold

Second Dept. 2014. 240(1) Liability. Where owner or GC delegates duty to conform to requirements of the Labor Law to subcontractor, subcontractor becomes statutory agent of owner or GC.Scaffold supplied by painting subcontractor pursuant to its agreement with GC. To hold defendant liable as agent of GC for violations of 240(1) and 241(6), must be a showing subcontractor had authority to supervise & control the work. Determinative factor is whether entity had the right to exercise the work, not whether it actually exercised that right. Where owner or GC delegates duty to conform to requirements of Labor Law to third-party subcontractor, such subcontractor becomes statutory agent of owner or GC. Here, subcontractor supplying scaffold to be used, testified he asked GC for authority to supervise & control plaintiff’s use of scaffold. As such, subcontractor agent of GC. Van Blerkom v. America Painting, LLC, 120 AD3d 660;

Fourth Dept.

Rogers v. DS Restoration & Residential Servs. Co., 2026 NY Slip Op 00725, decided Feb. 11, by Fourth Dept. Plaintiff fell while cleaning gutters at a residential home. DS Restoration & Residential Services & Lenard Dabney named as defendants. It was held defendants failed to establish that they were not “contractors” within the meaning of §240(1).Court cited appliable rules:

“An entity is a contractor within meaning of §240(1) and §241(6) if it had the power to enforce safety standards & choose responsible subcontractors.” Steigman v. Barden & Robeson Corp., 162 AD3d 1694 (4^th Dept. 2018).

“Core inquiry is whether defendant had the authority to supervise and control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition.” Steigman.

Defendants status as contractors is dependent on their right to exercise control, not whether they in fact did so.” Barker v. Union Corrugating Co., 187 AD3d 1544 (4^th Dept. 2020).        

Defendants submitted evidence that property owner, defendant Pokszywka, hired defendant DS Restoration & Dabney to work on the gutters. Plaintiff testified that Dabney asked plaintiff if plaintiff could assist him with the job of cleaning the gutters. Although no written contract between Dabney & plaintiff, plaintiff testified there was a verbal agreement similar to prior jobs where Dabney would pay plaintiff in cash for his work. Based on such evidence, triable issue of fact whether defendants had authority to exercise control over the work & thus were contractors within §240(1) and §241(6).   

Fourth Dept. 2010. Electrical Subcontractor Statutory Agent of GC. 240(1) Liability. Plaintiff fell from ladder at construction site upon receiving electrical shock. Tambe electrical contractor at site. Subcontractor such as Tambe will be liable as agent of GC for injuries sustained in those areas & activities within scope of the work delegated to it. Pursuant to its subcontract with GC, Tambe responsible for temporary wiring & for safety of its work & work area. Martinez v. Tambe Elec., Inc., 70 AD3d 1376;

Fourth Dept. 2004. 240(1) Liability Imposed. Subcontractor Had Supervision & Control Over Work Area, a Crawl Space.  Statutory Agent of GC. Plaintiff sustained burn/inhalation injuries from an explosion while he was using a torch to solder copper joints in a crawl space. Mader contended it did not have a nondelegable duty pursuant to 241(6).  Subcontractor such as Mader is liable as agent of GC for injuries sustained in those areas & activities within scope of the work delegated to it. Mader failed to meet its burden of not having supervision or control of the safety of area involved in incident. Pursuant to its contract with Ciminelli, Mader responsible for crawl space insulation & for safety of its work & work area. Mader also responsible for clean-up & removal of all debris caused by its operations. Court held Mader had control over plaintiff’s work. Piazza v. Frank L. Ciminelli Constr. Co., Inc., 12 AD3d 1059;

While No Control Over Plaintiff, Control Over Accident Site. 240(1) Liability.

Fourth Dept. 2012. While No Control Over Plaintiff’s Work, Control Over Accident Area. Wachs hired plaintiff’s employer as GC to rebuild strip mall owned by Wachs. Wachs also hired Scott Quick Construction to repair the roof. At time of accident, Quick had started the roof repair but left the job site to work on project in another state. Upon arriving at work, plaintiff informed roof was leaking and ruining newly installed drywall. Plaintiff went to roof and found roofing membrane Quick had left hanging over side of the building had folded over from the wind, causing water to pool on the flat of the roof and to flow into building. Plaintiff pushed the membrane back over the side of the building and swept the water off the roof. Several hours later, the membrane had again folded over and plaintiff returned to the roof. At this time plaintiff fell from the roof. It was held that Quick was agent of owner, Wachs. While Quick had no control over plaintiff’s work, it had control over area where plaintiff was injured. As plaintiff was asserting defective condition of work site rather than the manner of the work, Quick had to establish had no supervision or control of the accident area. Rast v. Wachs Rome Dev., LLC, 94 AD3d 1471; 

February 16. New York. Contractual Indemnification. Interpreting Indemnification Clause Phrase, “Including, by way of description, but not by way of limitation.” Doctrine, “unius est exclusion alteris” Not Apply.

Bucur v. Term Fulton Realty Corp., 2026 NY Slip Op 30308, decided Jan. 28, Hon. Sabrina Kraus, Supreme Court, NY County. Plaintiff, employed by  Choice NY Property Management, LLC (Choice), alleged he fell from a ladder while repairing a ceiling in a laundry room. Term Fulton, the building owner, leased the building to 56 Fulton Street LLC, who retained Choice to perform work and provide management & staffing service at the building. Such Management Agreement obligated Choice to indemnify the owner against any liability by reason of any gross negligence or willful misconduct or fraud or professional errors or malfeasance by Choice …

In addition, Choice agreed to indemnify the owner for claims brought by Choice’s employees arising from, or in connection with, such employee’s employment with Choice, including, by way of description, but not by way of limitation, any claim arising out of, related to any violation of applicable laws regulations, including without limitation, Title VII of the Civil Right Act of 1964 …

As to the indemnification clause’s second paragraph, “claims brought by Choice’s employes arising from employee’s employment with Choice,” it was held plaintiff’s claim arose from an accident while completing a task in the scope of employment with Choice. However, Choice asserted the language in the indemnification clause that followed “claims in connection with employee’s employment,” referring to employment discrimination, provided no obligation to indemnify the owner for plaintiff’s accident.

Court cited the doctrine expression unius est exclusion alteris, which provides that where a sophisticated contract drafter omits a term the court should not imply that term from the general language of the agreement. The Management Agreement expressly includes the phrase “including, by way of description, but not by way of limitation,” preceding the list of employment discrimination claims. Such phrase “directly evidences the parties’ intent not to limit the claims to the employment discrimination claims listed in the second paragraph” of the indemnity clause. As such the expression unius est exclusion alteris not apply.Comment. Indemnification clause here contained language not typically used in such clauses. The clause here included employment discrimination claims. However, the phrase “including, by way of description, but not by way of limitation,” is contained in other indemnification clauses. Such phrase provides that enumerating a certain act(s) is not limiting the indemnification obligation to such act(s).           

February 16. New York. Labor Law §241(6) Action.

Industrial Code 23-1.7. Protection from overhead hazards. 241(6) Action Dismissed.

(a) Overhead hazards.

(1) Every place where persons are required to work or pass that is normally exposed to falling material or objects shall be provided with suitable overhead protection. Such overhead protection shall consist of tightly laid sound planks at least 2 inches thick full size, tightly laid three-quarter inch exterior grade plywood or other material of equivalent strength. Such overhead protection shall be provided with a supporting structure capable of supporting a loading of 100 pounds per square foot.

Comment. 23-1.7(a)(1) requiressuch areas must be “normally exposed” to falling material or objects. How often does something have to fall in an area for the area to be “normally exposed” to falling objects? Or is the question whether falling objects usually result from the type of work being performed?  Where steel pipes or wooden planks are being cut, does that make the area below “normally exposed” to falling objects even though no previous pipes or planks fell? 23-1.7 states “normally exposed.” Depending upon the work being performed above, a worker may be normally exposed” even though no objects fell before the accident.        

23-1.7(a) Sufficiently Specific to Support 241(6) Cause of Action

First Dept. 2009. Clarke v. Morgan Contr. Corp., 60 AD3d 523; 1998. Murtha v. Integral Construction Corp., 253 AD2d 637;

Second Dept. 2006. Portillo v. Roby Anne Dev., 32 AD3d 421; 2004. Zervos v. City of NY, 8 AD3d 477;  

Fourth Dept. 2007. Roosa v. Cornell Real Prop. Servicing, Inc., 38 AD3d 1352; Fourth Dept. 1999. Sears v. Niagara County Ind. Dev., 258 AD2d 918;

Distinguishing 23-1.8(c)(1) & 23-1.7(a)(1)

Second Dept. 2009. Unlike 23-1.7(a)(1), 23-1.8(c)(1) not require the accident site be normally exposed” to falling material, but instead provides that “every person required to work or pass within any area where there is danger of being struck by falling objects or materials … shall be provided with and shall be required to wear an approved safety hat.” Marin v. Ap-Amsterdam 1661 Park, 60 AD3d 824; 

23-1.7(a)(1) Dismissed.

First Dept.

First Dept. 2024. Plaintiff’s reliance on 23-1.7(a)(1) was misplaced as such code not apply given that the overhead planking protection called for under 23-1.7(a)(1) would interfere with plaintiff’s ability to perform his work stripping forms from the ceiling.  The decision cited the Court of Appeals’ holding in Salazar v. Novalex Contr. Corp., 18 NY3d 134 (2011) where plaintiff and other workers were laying a concrete floor in a basement. Plaintiff was directed to pour and spread concrete over entire basement, including trenches. Plaintiff when he was walking backwards across the floor he stepped into a trench filled with concrete. There was no barricade around the trench. In dismissing the 240(1) action it was held that installing a barricade around the subject trench “would have been contrary to the objectives of the work plan in the basement.”  “Put simply, it would be illogical to require an owner or GC to place a protective cover over, or otherwise barricade, a 3-4 foot deep hole when the very goal of the work is to fill the hole with concrete.” Urquia v. Deegan 135 Realty LLC, 2024 NY Slip Op 05080;

Also, Deegan decision held plaintiff not offer sufficient proof to show the overhead protection specified in 23-1.7(a)(1) was needed, as there was no proof workers were required to work or pass through the basement floor under construction, or that the area was normally exposed to falling material or objects. Urquia v. Deegan 135 Realty LLC, 2024 NL Slip Op 05080;

First Dept. 2019. 23-1.7(a)(1) Dismissed. Plaintiff struck by as fixture that dislodged & not from debris that may have been falling from ceiling demolition. Djuric v. City of NY, 172 AD3d 456;

First Dept. 2012. 23-1.7(a)(1) Dismissed. While in elevator pit preparing to dismantle components of an elevator, the “selector tape” a thin strip of metal snapped, cutting his hand. Plaintiff not subject to overhead hazard of falling objects. Garcia v. DPA Wallace Avenue I, LLC, 101 AD3d 415;

First Dept. 2012. 23-1.7(a) Dismissed. As plaintiff was dismantling a scaffold, a piece of the scaffold suddenly fell, striking plaintiff. Griffin v. Clinton Green S, LLC, 98 AD3d 41;

First Dept. 2007. 23-1.7(a)(1) Dismissed. Elevator counterweights fell on plaintiff. Where object unexpectedly falls on a worker in an area not normally exposed to such hazards, 23-1.7(a)(1) not apply. Buckley v. Columbia, 44 AD3d 263; 

First Dept. 2007. 23-1.7(a)(1) Dismissed. Not applicable to stationary hoists. Plaintiff struck with a load of cinder blocks that became loose & fell on him as it was being hoisted from a flatbed truck by a fork boom & lowered onto a pallet near where he was standing. Gonzalez v. Glenwood Mason Supply, 41 AD3d 338;     

First Dept. 2006. 23-1.7(a)(1) Dismissed. Mason tender struck when cement blocks from a newly completed wall fell on him at a construction site. Favia v. Weatherby Constr. Corp., 26 AD3d 165;

First Dept. 2002. 23-1.7(a) Dismissed. Plaintiff struck by piece of metal inside a wall separating 2 rooms dislodged & fell on his hand as he prepared to patch a hole that was cut in the wall. Quinlan v. City of NY, 293 AD2d 262;

Second Dept.

Second Dept. 2024. 23-1.7(a) Dismissed. Fire extinguisher falling from beam. While backfilling the foundation at a construction site, a fire extinguisher that was resting unsecured on a beam 20 feet above plaintiff, fell, striking plaintiff in the head. A cause of action alleging a violation of 241(6) predicated upon a violation of 23-1.7(a) requires plaintiff to demonstrate the area in which plaintiff was injured was one where workers normally exposed to falling objects. Defendants established the area here was not normally exposed to falling material or objects within meaning of 23-1.7(a). Flores v. Fort Green Homes, LLC, 227 AD3d 672;

Second Dept. 2023. 23-1.7(a) Dismissed. Plaintiff was laborer tasked with clearing debris from first floor of building being demolished. Ductwork attached to first floor ceiling became detached on one end and fell 18 inches, causing dirt and pebbles to fall into plaintiff’s left eye. 23-1.7(a) inapplicable as accident area not normally exposed to falling material or objects within the meaning of the code.   Cruz v. 451 Lexington Realty, LLC, 218 AD3d 733;

Second Dept. 2023. 23-1.7(a) Dismissed. Demolition Site. Construction worker was struck in the head by a piece of wood during demolition of a house. A piece of wood became dislodged from a wall. Defendants established work site was not a place normally exposed to falling material or objects. Reyes v. Sligo Constr. Corp., 214 AD3d 1014; 

Second Dept. 2020.Plaintiff failed to demonstrate working area was normally exposed to falling material or objects. While plaintiff was walking through a basement where he was working, a piece of plywood that had just been pried off the ceiling by another worker struck plaintiff. Crichigno v. Pacific Park 550 Vanderbilt, 186 AD3d 664; 

Second Dept. 2017. 23-1.7(a) Dismissed. Falling of exhibition booths. While plaintiff performing

electrical work at Javits Center, 2 panels comprising the walls of exhibition booth fell on him.  Honeyman v. Curiosity Works, Inc., 154 AD3d 820;

Second Dept. 2016. 23-1.7(a)(1) Dismissed. Top of 10-foot high piece of cold board that plaintiff was fitting into a wall frame of a building under construction, snapped forward, coming into contact with brim of plaintiff’s hard hat. No evidence such area was normally exposed to falling objects. Vatavuk v. Genting NY, LLC, 142 AD3d 989;  

Second Dept. 2013. 23-1.7(a) Dismissed. Worker at school construction site was standing on the ground outside the school when he was struck by a piece of sheetrock falling from third floor of school building. Defendants established accident area not normally exposed to falling materials or objects. Moncayo v. Curtis Partition Corp., 106 AD3d 963;

Second Dept. 2010. 23-1.7 Dismissed. Plaintiff, while standing outside a construction project 10-18 feet away from a dumpster was struck by a bag of construction debris tossed from roof. Fried v. Always Green, LLC, 77 AD3d 788;

Second Dept. 2009. 23-1.7(a)(1) Dismissed. 2 Prior Falling Backets Not Sufficient For Violation. Plaintiff injured while installing a drainpipe on exterior of 6-story apartment building. A metal bracket which was attached near the top of building became dislodged, striking plaintiff. There was no overhead protection. Held that although 2 other brackets fell from building prior to plaintiff’s accident, was not a sufficient basis to find work site was normally exposed to falling brackets.  Marin v. AP-Amsterdam 1661 Park LLC, 60 AD3d 824;   

Second Dept. 2007. 23-1.7(a) Dismissed. Section of ceiling collapsed. While performing interior demolition work, piece of ceiling collapsed, striking plaintiff. 23-1.7(a) dismissed as area not area where workers normally exposed to falling objects.Mercado v. Brooklyn, 38 AD3d 732;

Second Dept. 2006. 23-1.7(a)(1) Dismissed. Plaintiff struck by steel beam being removed from a partially demolished building.  Not struck in area where workers were normally exposed to falling objects. Portillo v. Roby Anne Dev., 32 AD3d 421;

Third Dept.

Third Dept. 2025. 23-1.7(a)(1) Dismissed. Plaintiff working in pit when struck by a wooden board a coworker intentionally threw into the pit, striking plaintiff. Defendant showed the pit area was not normally exposed to falling materials or objects and “in any event, plaintiff was working only 4-5 feet below grade. As such, defendant demonstrated the overhead protection regulation was not applicable. James v. Marini Homes, LLC, 2025 NY Slip Op 00132;

Third Dept. 2004. 23-1.7(a)(1) Dismissed as no evidence masons were normally exposed to falling objects. Plaintiff struck by 2 concrete blocks that fell from a stack of blocks on the level above him. McLaughlin v. Malone Tate Builders, Inc., 13 AD3d 859;

Fourth Dept.

Fourth Dept. 2011. 23-1.7(a) not apply as no evidence the area in which plaintiff was working was normally exposed to falling material or objects within meaning of 23-1.7(a). Timmons v. Barrett Paving Materials, Inc., 83 AD3d 1473;

Fourth Dept. 2005. 23-1.7(a)(1) Dismissed. Demolition worker struck by piece of partition wall that was partially demolished from floor above. Plaintiff’s work site an area not normally exposed to falling material or objects. Perillo v. Lehigh Construction Group, Inc., 17 AD3d 1136; 

Fourth Dept. 2004. 23-1.7(a)(1) Dismissed. Factually Inapplicable. Plaintiff struck by telephone messenger cable that he was attaching to utility poles. Greenough v. Niagara Mohawk Power Corp., 13 AD3d 1160;

Fourth Dept. 2003. 23-1.7(a)(1) Dismissed. A backhoe used to dig a trench was 30 feet from plaintiffwhen it dislodged an abandoned gas line pipewhich fell on plaintiff. Gampietro v. Lehrer McGovern Bovis, 303 AD2d 996;    

Fourth Dept. 1999. 23-1.7(a)(1) Dismissed. Angle Clip Slipped Down Column Striking Plaintiff. No evidence worksite was normally exposed to falling materials or objects. Plaintiff working on erection of temporary tube column to constructing addition to building. Column was set into place with a crane & plaintiff was bolting the base of column. Column equipped at the top with adjustable steel lug or angle clip used to hold bar joists to the roof. Angle clip slipped about 15 feet down the column striking plaintiff. Sears v. Niagara County Ind. Dev., 258 AD2d 918;  Fourth Dept. 1995. 23-1.7(a)(1) Dismissed. Inapplicable. Before the accident, plaintiff & coworkers placed a metal window curtain frame on a wall where it was to be installed. Plaintiff struck by metal curtain frame. Klien v. County of Monroe, 219 AD2d 846; 

February 15. New York. SUBCONTRACTORS. CONTRACTUAL INDEMNIFICATION.

Subcontractor. No Obligation to Indemnify Owner/GC. Subcontractor Not Create Dangerous Condition or Have Notice of Dangerous Condition.

Comment. Indemnification language required owner/GC establishing subcontractor’s negligence in the performance of its work. In absence of evidence of subcontractor negligently performing its work, subcontractor not obligated to indemnify owner/GC.

First Dept.

No Evidence Subcontractor’s Work Performed Negligently.

First Dept. 2022. Indemnification Claim Dismissed. Subcontractor’s Work Not Negligent. No evidence Pier Head negligent in performance of its contract with Titanium so as to trigger indemnification clause of parties’ subcontract. Unambiguous language expressly limited Pier Head’s indemnity obligation to where Pier Head’s negligence was responsible for plaintiff’s accident. Peranzo v. WFP Tower D. Co., 201 AD3d 486;

No Evidence Subcontractor’s Flooring Work Negligently Performed

First Dept. 2024. Indemnification Denied. Defendants offered no evidence that either Hi-Tech & Consolidated Carpet were negligent such to support defendants’ claims of common-law indemnity & contribution. Defendant Structure Tone’s project supervisor testified Hi-Tech & Consolidated Carpet’s work would be inspected by Structure Tone prior to their leaving the floor & they would not be permitted to leave until all holes in the raised floors properly covered. Scaffold wheel fell through Masonite covering into uncovered hole, 2 weeks after Hi-Tech & Consolidated Carpet left the floor. Court also found accident occurred in connection with Island’s working that plaintiff was performing work under Island’s contract with Structure Tone at time of accident. Agard v. Port Auth. of NY & NJ, 227 AD3d 404;  

 Lighting Fixture Not Improperly Installed

First Dept. 2021. Indemnification Claim Dismissed. Lighting Fixture Installation. No evidence accident arose out of work of third party defendant OH&M. Accident occurred before OH&M installed light fixture in part of ceiling grid where plaintiff working. Also, plaintiff testified light fixture nearby fell because he grabbed ceiling grid as he fell. No evidence light fixture fell because OH&M installed it improperly. Hogan v. 590 Madison Ave., LLC, 194 AD3d 570;

Accident Not Arise From Subcontractor’s Work. Hoisting Work Exempted From Subcontract.

First Dept. 2019. Contractual claim dismissed against J&E, finding accident not arise out of work performed by J&E, which played no role in crane’s maintenance or operation. Fact that load that would have been hoisted absent collapse was J&E materials, & that plaintiff, a J&E employee, was one of injured parties, insufficient to find accident connected to J&E’s work, especially where hoisting was activity specifically exempted from contract between J&E & its prime contractor. DeGidio v. City of NY, 176 AD3d 452;

Scaffolding Not Improperly Installed

First Dept. 2016. Indemnification Claim Dismissed. Scaffolding Installation. Plaintiff, through his testimony, established he fell off scaffolding frame onto scaffolding platform when scaffold moved while attempting to remove a staple from plastic covering on building exterior while propping himself up on cross brace of a frame. He had climbed onto cross brace as staple was 6 feet above his reach when he stood on platform. Owner’s contractual indemnification claim against Everest, a subcontractor installing scaffolding, dismissed in absence of negligence on Everest’s part in performance of its work. DaSilva v. Everest Scaffolding, Inc., 136 AD3d 423;

Subcontractor Not Create Dangerous Condition

First Dept. 2022. Indemnification Claim Dismissed. City of NY’s claim against SQP, a third party defendant, dismissed. SQP did not construct or maintain barricade railing system, nor did its employes remove part of top rail over which plaintiff fell. SQP also not supervise or control plaintiff’s work. As such, accident not arise out of SQP’s work so as to trigger contract’s indemnification provision on that ground. Nor did SQP, which submitted evidence of complying with its contractual obligation to daily inspect site for hazards, act negligently as to trigger indemnification provision. Harris v. City of NY, 202 AD3d 624;

No Misuse or Improper Maintenance of Crane

First Dept. 2015. Indemnification Claim Dismissed. Crane Collapse. Owners claim for contractual indemnification against subcontractor denied. Indemnity clause stated Sorbara would indemnify DeMatteis & 1765 First for losses that occur “by reason of the acts or omissions of Sorbara or anyone directly or indirectly employed by Sorbara in connection with the Work.” No evidence crane collapse occurred because of act or omission on its part. Sorbara leased crane from defendant NY Crane & Equipment Co. That fact alone not trigger indemnification clause. Nor was NY Crane indirect employee of Sorbara. Insufficient evidence offered as to whether crane misused by Sorbara operator or improperly maintained by Sorbara’s employees. Matter of 91^st St. Crane Collapse Litig., 133 AD3d 478;

Subcontractor Not Proximate Cause of Accident. Merely Furnished Occasion For Accident.

First Dept. 2012. Indemnification Claim Dismissed. Proximate Cause of Accident. Defendants asserted Tiegre negligent in failing to instruct plaintiff not to use driveway exit through which he entered building under construction which was reserved solely for supervisors of contractors & subcontractors. However, where plaintiff struck by a cinder block dropped off sixth floor, violation of failing to instruct plaintiff from using exit not proximate cause of accident but merely furnished condition or occasion for occurrence. Anton v. West Manor Constr. Corp., 100 AD3d 523;

Siguencia v. Hudson Cos., Inc., 2026 NY Slip Op 00598, decided February 5, 2026, appellate court, First Dept. Plaintiff awarded summary judgment on his Labor Law §240(1) action where he was struck by several 250-pound, 9-foot unsecured doorframes falling from a wall at construction site. Premises owner & GC brought a third party action against a hoist company. However, appellate decision held there was no evidence hoist company had anything to do with the storing of such doorframes at the work site. Absent evidence, third-party action was dismissed as it was based on speculation.

The indemnification clause of the contract obligated the hoist company to indemnify the premises owner & GC “for any and all claims … arising in whole or in part and in any manner from injury and/or death of person caused by or resulting from the Hoist Company’s acts, omission, breach or default” in the performance of the subcontract work. The appellate court interpreted such language as requiring fault by the hoist company in order to trigger its indemnification obligation under the contract. Again, as there was no showing of negligence by the hoist company, third-party action seeking contractual indemnification was dismissed by appellate court.        

First Dept. 2019. Indemnification Claim Dismissed. Plaintiff’s employer not negligent. Building’s dangerous condition cause of accident. Plaintiff installing window washing scaffold or rig on roof of building owned by Plaza. Defendant building retained plaintiff’s employer, Global, to perform such work. While plaintiff walking on metal catwalk partially dismantled & no longer in use, section of grating of catwalk collapsed, causing fall 18-20 to roof below. As Global not own building or install catwalk, Global no duty to maintain catwalk. No evidence Global or plaintiff knew catwalk unsafe. Plaza personnel never instructed Global employees not to use catwalk. Also, Plaza put up no warning signs as to using catwalk. Fact that Plaza not supervise work irrelevant as accident arose from dangerous premises. Plaza failed to warn Global of hazard. Plaza’s contractual indemnification claim dismissed. Contract required Global to indemnify Plaza from claims “arising out of or resulting from the performance of the Work … except to the extent caused by the sole negligence of any such Indemnitees.” No evidence Global or plaintiff acted negligently. On the other hand, accident due to Plaza’s sole negligence. Powers v. Plaza Tower, LLC, 173 AD3d 446;

Beyond Subcontractor’s Contracted Work

First Dept. 2018. Indemnification Claim Denied. Debris. Owner defendants not entitled to common law indemnification or contribution from contractors as no evidence contractors negligent. As subcontractor Alfa not negligent & because its subcontract required it to indemnify owners only from damages arising from Alfa’s work & caused by Alfa’s negligence, owner defendants not entitled to contractual indemnification from Alfa. Plaintiff stepped into a hole obscured by garbage as he stepped off ladder. Licata v. AB Green Gansevoort, LLC, 158 AD3d 487;

Subcontractor Not Create Debris Hazard

First Dept. 2008. Indemnification Claim Dismissed. Debris. Dangerous condition not arise from subcontractor’s work. GC, Marquise Construction, obligated to hire & supervise laborers to clean work site. Allstar, electrical subcontractor, had no such duty & not create hazardous condition causing plaintiff to slip & fall on staircase. GC recognized subject wall compound droppings & dust left behind by sheet-rocking subcontractor were safety hazard & such conditions were recurring. As no evidence Allstar contributed to plaintiff’s fall, Allstar had no contractual indemnification obligation to GC. Paltie v. Marquise Constr. Corp., 49 AD3d 380;

Debris

First Dept. 2012. Indemnification Claim Dismissed. Debris. Plaintiff, ironworker employed by Pre-Fab claimed that as he & another worker were moving steel beams, he slipped & fell on plastic debris located on sand surface. Construction project was to build indoor tennis facility. Owners contracted with JH Mack to be GC & JH Mack contracted with Pre-Fab to perform steel work. JH Mack’s contractual indemnification claim dismissed against Pre-Fab as no evidence Pre-Fab negligently supervised plaintiff’s work or otherwise contributed to accident. Plaintiff’s testimony as to source of plastic debris speculative & insufficient to raise issue of fact. Contractual & common law indemnification claims dismissed. Cohen v. NYC Indus. Dev. Agency, 91 AD3d 416;

Other Subcontractors Performing Work in Same Area. Speculation.

First Dept. 2017. Indemnification Claim Denied. Speculation. Other trades performing work in accident area. Contractual & common law indemnification & contribution claims dismissed against Mazzeo. Theory that Mazzeo negligently installed wiring in accident area more than one year before accident occurred was speculative, in light of other work performed by other subcontractors in the period following completion of Mazzeo’s work. Rubino v. 330 Madison Co., 150 AD3d 603;

First Dept. 2017. Indemnification Claim Denied.  Other Subcontractor May Have Created Dangerous Condition. Plaintiff fell through unprotected stairwell opening in floor in course of installing display shelving during store renovation. Premises owner & lessee submitted evidence not negligent & not supervise or control means & methods of plaintiff’s work. Owner’s principal submitted affidavit that Inter-Next retained to remove pull-up door over stairwell & stairwell opening always covered by plank or board. Inter-Next asserted no direct evidence it removed door or plank, its written contract not require removal of door & other contractor at site could have caused stairwell opening to be uncovered. While circumstantial evidence to support finding Inter-Next removed pull-up door, insufficient to eliminate issues of fact as to whether Inter-Next negligent as to unguarded floor opening. Given evidence stairwell opening covered by board or plank & other subcontractor’s employees went down to basement while working, factfinder could conclude floor’s unguarded condition not caused by Inter-Next. Nunez v. LMJ Vision, Inc., 148 AD3d 496;

Dangerous Condition Unrelated to Subcontractor’s Work 

First Dept. 2009. Indemnification Claim Dismissed. Plaintiff, employee of GC, assigned to remove debris from roof. Ramp connecting roof to exterior elevator was removed & to access roof, plaintiff climbed over parapet wall D’Aprile in process of constructing, landing on unsecured plywood planking covering hole in roof, falling through roof. D’Aprile’s subcontract, requiring it to construct parapet wall, did not require access to or work on roof & not impose a duty to provide plaintiff with safe means of accessing roof. Even if D’Aprile removed ramp to perform its work, & no evidence it did remove ramp, & even if removal of ramp & location of commencement of construction of wall forced plaintiff to climb over wall in a place placing him close to hole in roof, plaintiff not performing work even remotely related to D’Aprile’s masonry work & ramp was neither instrumentality for which D’Aprile responsible, nor a tool or material needed by D’Aprile to perform its work. Plaintiff injured not because ramp removed, but because someone removed secure covering over hole that everyone, including plaintiff, thought was still in place & replaced it with unsecured plywood. Pepe v. Center for Jewish History, Inc., 59 AD3d 277; 

Owner Supervised Building’s Window Washers

First Dept. 2008. Indemnification Claim Dismissed. Owner Responsible For Supervision of Window Washers. In action by window washer, employed by Triangle, injured working on powered work platform, maintained by defendant Otis, known as Wall Glider, at high rise building owned & managed by Trump defendants. Otis established Wall Glider operating properly on accident day based on testimony of plaintiff, Otis’s resident mechanic & Otis’s expert. Plaintiff’s claims platform’s armatures had history of disengaging from indented vertical mullions (vertical bar between the panes of glass in a window) in windy conditions or because of weight distribution, not implicate negligence on part of Otis. Trump’s own witness asserted mullions permanently affixed to building & not maintained by Otis as part of Wall Glider equipment. Trump-Otis contract limited to maintenance & excluded provision of major parts such as gearing, ropes, brakes, armatures, etc. As such, it was Trump’s responsibility, not Otis’s, to supervise work of window washers & supply them with equipment. Matthews v. Trump 767 Fifth Ave., LLC, 50 AD3d 486;

Mere Leasing of Equipment to Site Subcontractor

First Dept. 2007. Indemnification Claim Dismissed Against Equipment Lessor. Crane Lessor. While plaintiff standing on partially elevated boom of crane, crane moved, causing a fall. Indemnification claim against owner of crane, NY Crane, dismissed. NY Crane merely leased crane to Williams, it did not employ crane operator & had no supervisory control over operator or work being performed. As such, NY Crane could not be liable for operator’s negligence. NY Crane was no more than lessor of crane. NY Crane had no employees on site & did not direct or control operation of crane. Mahoney v. Turner Constr. Co., 37 AD3d 377;

Second Dept.

Second Dept. 2017. Indemnification Claim Dismissed. As owners failed to establish subcontractors negligent in connection with accident, owners failed to establish their contractual indemnification claim. Poalacin v. Mall Props., Inc., 155 AD3d 900;

Site Fence Blown Over Was Not Used in Subcontractor’s Work

Second Dept. 2017. Indemnification Claim Dismissed. Subcontract between NASDI & GC, Conti, required NASDI to indemnify Conti for all injuries caused by resulting from, arising out of, or occurring due to NASDI’s negligence in connection with its work or work area. NASDI established plaintiff’s accident not arise from NASDI’s negligence in connection with its work or work area. Plaintiff struck by chain-link fence which was blown over at Staten Island Ferry Terminal in Staten Island. Plaintiffs were NASDI employees performing construction work at terminal. Chain-link fence installed by GC Conti. Gurewitz v. City of NY, 175 AD3d 658;

Subcontractor No Obligation of Snow Removal

Second Dept. 2013. Indemnification Claim Dismissed. Snow & Ice. Accident Not Arise From Sub-Contractor’s Work at Premises. Plaintiff fell in driveway from ice. Plaintiff employed by Marble & Tile Corp, subcontractor hired by TMA Construction. Contract between TMA & Marble required Marble to indemnify TMA “from and against all claims, damages, losses and expenses … arising out of or resulting from performance of Marble’s work, but only to extent caused by negligent acts or omissions of Marble.” As Marble established plaintiff’s accident not caused by negligent acts or omissions of Marble, indemnification clause not triggered. Marble no obligation of snow removal. Mikelatos v. Theofilatidis, 105 AD3d 822;

Subcontractor Not Supervise or Control Injury Producing Work

Second Dept. 2016. Indemnification Claim Dismissed. Subcontractor Not Supervise or Control Injury Producing Work. While working as welder, plaintiff fell through purposefully designed opening in platform floor temporarily covered with piece of plywood. United Baking was premises owner. United purchased oven through Dunbar Systems & hired Dunbar to install oven. Dunbar subcontracted such work to C&C & C&C made plywood cover & installed it over opening. United failed to establish accident arose solely from method or manner of work performed & not from dangerous condition of premises. United, as owner, also failed to establish it did not create allegedly dangerous condition & not have actual or constructive notice of such condition. Dunbar demonstrated not involved with constructing plywood cover & not direct, supervise, or control work giving rise to accident. Owner’s contractual and common law indemnification claims against Dunbar dismissed. Chilinski v. LMJ Contr., Inc., 137 AD3d 1185;

Subcontractor’s Work of Building CVS Store Not Negligent

Second Dept. 2009. Indemnification Claim Denied. Subcontractors’ Work Not Negligent. In 2003, Jato Building Contractors entered into construction contract with defendant CVS in which Jato was to build a CVS store. Contract’s indemnification clause stated, “to defend, indemnify and hold harmless CVS … from and against all claims, damages, losses and expenses … arising out of or resulting from … any negligence or tortious act or omission” on its part in the construction process. CVS sued when patron slipped & fell caused by negligent design of handicapped access ramp outside CVS store. CVS failed to establish accident resulted from negligent or wrongful act or omission on part of Jato. CVS’ motion for contractual indemnification against Jato denied. Bryde v. CVS Pharmacy, 61 AD3d 907;

Subcontractor Exited Site Months Before Accident

Second Dept. 2015. Indemnification Claim Dismissed. Subcontractor Left Site Months Before Accident.  FASA’s contractual indemnification obligation limited to claims, damages, losses & expenses caused in whole or in part by its negligent acts or omissions.FASA established dismissal of indemnification claim by establishing plaintiff’s accident not caused in whole or in part by negligence on its part. FASA established it did not create dangerous condition allegedly causing accident; that it completed its work in the accident area 4 months before accident, that it cleared area of debris & received no complaints of condition of area. Tolpa v. One Astoria Square, 125 AD3d 755;  

Mere Claim of Negligence Insufficient to Trigger Indemnification

Second Dept. 2010.It could not be clearly implied from language of indemnification agreement between Masterbuildrrs & Urban Outfitters that parties intended for Masterbuilders to indemnify Urban Outfitter based merely on claim that Masterbuilders was negligent, without establishing such negligence. Alfaro v. 65 West 13^th Acquisition, LLC, 74 AD3d 1255;

Third Dept.

Subcontractor Not Supervise Injury Producing Work

Third Dept. 2022. Motion for indemnification denied. Subcontractor not supervise plaintiff’s work. Heritage, premises owner sought indemnification from Dupuis, contractor hired to install sheetrock at premises. Dupuis subcontracted work to Wall-Tech, plaintiff’s employer. No finding Dupuis negligent at the time of summary judgment motions. Owner argued plaintiff sole proximate cause of accident. No evidence Dupuis supervised, controlled or directed plaintiff’s work. Dupuis not in same room after plaintiff set up his equipment. As such, Dupuis may not have been actively negligent. Motion for indemnification deemed premature. Morin v. Heritage Bldrs. Group, 211 AD3d 1138;

Subcontractor Not Assume Continuing Burden

Third Dept. 2008. Indemnification Claim Denied. Subcontractor Not Assume Continuing Burden After Having Completed Its Work. Indemnification clause related to builder Quay’s obligation to comply with applicable laws & ordinances during its work in order to complete work contemplated in Agreement. This interpretation is in harmony with other parts of Agreement, which includes separate clause for indemnification as to damages to persons or property caused by Quay during its performance of the work. As contractor Quay did not assume a burden plaintiff falling from ramp 14 years after Quay completed construction of the ramp. Luby v. Rotterdam Square, LP, 47 AD3d 1053;

Fourth Dept.

Fourth Dept. 2024. Indemnification Denied. Issue of Fact. Huber was subcontractor hired to install exterior wall systems. Plaintiff employed by Huber. Plaintiff injured handling the wall panels. Premises owners & construction manager sought contractual indemnification from Huber. Indemnification provision required accident arise out of Huber’s work but only if accident resulted from Huber’s negligence. While premises owner & construction manager not supervise or control injury producing work & were therefore not negligent, such entities failed to show plaintiff’s injuries arose from negligence of Huber or Huber’s subcontractors. Issues of fact existed. Lamarr v. Buffalo State Alumni Assoc., 2024 NY Slip Op 03965;

Fourth Dept. 2023. Issue of Fact. While working on construction project and walking between job assignments, plaintiff slipped & fell on ice. Plaintiff sued Dominion Energy, premises owner and LMC Industrial, the GC. Both defendants sought contractual indemnification from plaintiff’s employer, O’Connell Electric. O’Connell’s obligation was to indemnify for claims arising from the performance of its work but only if caused by its negligent acts. Defendants failed to eliminate all triable issues of fact whether plaintiff’s claims arose from O’Connell’s negligence. Holler v. Dominion Energy Transmission, 221 AD3d 1491;    

Fourth Dept. 2024. Indemnification Denied. Issue of Fact. Red Rose Landscaping entered into contract with Source Facility to remove snow & ice from parking lot. Indemnification clause required Red Rose to indemnify Facility Source and its customers for claims arising out any act or omission of Red Rose and failure of Red Rose to perform the services in accordance with generally accepted industry & professional standards. While evidence showed Red Rose serviced the parking lot at 3:00 am on the day of the accident, there was no evidence as to what services were performed at that time. No evidence offered as to the weather temperature at that time or whether sufficient amount of snow had fallen that would have required Red Rose to perform its contractual duties. Issue of fact whether there was a triggering event requiring Red Rose to indemnify Facility Source. Garcia v. Black Sea Props., LLC, 227 AD3d 1486;     

No Evidence of Subcontractor’s Negligence Fourth Dept. 2014. Indemnification Claim Dismissed. Premises owner, 60 Grider not entitled to conditional order of contractual or common law indemnification from contractor Consolidated as owner 60 Grider failed to show Consolidated negligent, as required by indemnification clause. Foots v. Consolidated Building, 119 AD3d 1324;

February 15. New York. Third Party Beneficiary Indemnification Status

Comment. Entity not specifically named in indemnification agreement may still be entitled to indemnification if it is an intended beneficiary of such indemnification agreement.  

A third party asserting rights as third party beneficiary must establish:

Existence of valid & binding contract between other parties;

Contract was intended for the third party’s benefit; and

Benefit to the third party is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate the third-party if the benefit is lost.

Fourth Dept. 2021. Corter-Longwell v. Juliano, 200 AD3d 1578;  

Fourth Dept. 2021. Distinguishing Intended Beneficiary & Incidental Beneficiary. Third party is an intended beneficiary rather than merely an incidental beneficiary when circumstances indicate the promisee intends to give the beneficiary the benefit of promised performance. Corter-Longwell v. Juliano, 200 AD3d 1578;

Court of Appeals

Court of Appeals. 2018. Premises Owner Not Intended Beneficiary. With respect to construction contracts, Court has generally recognized express contractual language stating contracting parties intended to benefit a third party to enforce a promisee’s contract with another. This rule reflects particular nature of construction contracts & the fact that, as is the case here, there are often several contracts between various entities, with performance ultimately benefitting all of the entities involved.  City of NY not intended beneficiary as the City was not only entity that could recover under the subject contract as DASNY, the contracting party also brought its own breach of contract claim. Also, subject contract not expressly name City as intended 3^rd party beneficiary nor enforce the City to enforce any obligations thereunder. Dormitory Auth. of the State of NY v. Samson Constr. Co., 30 NY3d 704;

First Dept.

First Dept. 2024. Premises Owner Not Intended Beneficiary. Owner’s breach of contract claims based on contractual indemnification dismissed as owner not a party to the contract between defendants & subcontractor at the construction site where the accident occurred, nor was owner intended third party beneficiary under such contract. JDS Constr. Group LLC v. US Crane & Rigging LLC, 224 AD3d 582;   

First Dept. 2024. Tremont/Joy defendants were not third party beneficiaries of indemnification provisions in subcontracts that did not mention them and of which they were not signatories. Indemnification provisions should be strictly construed & should not be judicially rewritten to create obligations that were not unambiguously stated therein. Weidtman v. Tremont Renaissance Housing Dev. Fund Co., 224 AD3d 488;

First Dept. 2021. Premises Owner Not Intended Beneficiary. St. Valentine denied contractual indemnification as it was not included as the named “owner” in the indemnification agreement. Also, no evidence it was a third party beneficiary of agreement between tenant & contractor. There was nothing in the agreements suggesting St. Valentine, premises owner, intended to be named indemnitee & St. Valentine’s failed to establish it proffered any consideration in order to be considered a party to the agreement. St. Valentine not know about construction project & not entitled to enforce indemnification provision in tenant’s agreement with contractor. Benitez v. Church of St. Valentine Williamsbridge NY, 171 AD3d 593;

First Dept. 2016. Not Intended Beneficiary. Broadway not entitled to contractual indemnification by Knight since indemnification clauses on which it relies are contained in contracts to which it was not a signatory & in which it was not named as an indemnitee. Nor was there any basis for a finding that Lime & Knight intended Broadway to be third party beneficiary of their subcontract, which referred to a different entity as the property owner & did not mention Broadway. Nazario v. 222 Broadway, LLC., 135 AD3d 506;

First Dept. 2015. Not Intended Beneficiary. Resident Engineer Not “Other Contractor” & Thus Not Intended Beneficiary.  Unicorn entered into contract with City of NY to perform certain work on 149^th Street bridge in Queens. Gandhi Engineering was City of NY’s contracted resident engineer on same bridge rehabilitation project, & claimed to be third party beneficiary of Unicorn’s contract with City of NY.  Issue was whether Gandhi was “Other Contractor” within meaning of Unicorn’s contract with City of NY, which Unicorn must indemnify for any damages arising from its acts or omissions. Unicorn’s contract section, “Coordination With Other Contractors,” distinguishes between “Other Contractors” & “Engineer,” whose responsibility is to coordinate the work of Unicorn & other contractors. Such contract section not include Gandhi as “Other Contractor” whom Unicorn must indemnify. City of NY v. Gandhi Eng’g, Inc., 128 AD3d 497;

First Dept. 2015. Not Intended Beneficiary. Contract Not Provide Entity Intended Beneficiary. Proposed cross claims by City defendants against JB Electric for contractual indemnification lack merit as contractual provisions relied upon are in a subcontract to which requesting defendants are not signatories & contract not provide they are indemnitees. Also, contract expressly precludes a finding that City defendants are third party beneficiaries. Sicilia v. City of NY, 127 AD3d 628;

First Dept. 2009. Not Third Party Beneficiary. GC Granite’s claims for indemnity & breach of contract against subcontractor Miller dismissed, as Granite & Miller not in contractual privity with each other & purchase orders constituting agreements between Grand Mechanical & Miller not make Granite third party beneficiary thereof, nor do such agreements incorporate by reference terms of contract between Granite & Grand Mechanical. Vargas v. NYC Tr. Auth., 60 AD3d 438;   

First Dept. 2004. Not Intended Beneficiary. As to indemnification, prime contract between Schroder & Dolner entitles only Schroder to defense & indemnification & there is no basis for extending such contractual rights to Equitable, who is not in contractual privity with Dolner. Various other contractual documents under which Equitable seeks indemnification are either ambiguous or dependent upon findings of negligence. Fernandes v. Equitable Life Assurance, 4 AD3d 214; 

Second Dept.

Second Dept. 2020. Entities Were Third Party Beneficiaries. Costs of Relocating Utilities. Plaintiff relied upon language in contract’s Article 39 that contract provisions are not intended for benefit of third parties unless otherwise specifically provided. A fair reading of the contract reveals intent to benefit utility owners such as Keyspan defendants and AT&T defendants by providing compensation for their utility relocation expenses. As such, the boilerplate language that no third party beneficiaries contract language is unenforceable against them, as the contract otherwise manifests an intent to benefit & afford contractual rights to third parties incurring expenses in relocating utilities. The contract provisions providing for reimbursement of ARTC for utility relocation costs paid to third parties, which included utility owners, would be rendered meaningless if they were not intended to benefit utility owners performing relocation work. Port Auth. of NY & NJ v. Brooklyn Union Gas Co., 179 AD3d 1106;   

Second Dept. 2019. Not Intended Beneficiary. LTI, plaintiff’s employer, was subcontractor of third party defendant Fahey, Inc., the GC at construction site. Owner & tenant brought third party action against LTI.  Third party action dismissed as subcontract between LTI and GC, Fahey, not require LTI to indemnify owner & tenant. Also, owner & tenant failed to show they were intended third party beneficiaries of indemnification agreement between LTI & Fahey. Chong Fu Huang v. 57-63 Greene Realty, 174 AD3d 777;

Second Dept. 2002. Consultants at Work Site Not Third Party Beneficiaries. Consultants asserted they stood in same position as other consultants & terms of insurance procurement provision of construction contract requiring HSP to obtain liability insurance coverage for all consulting engineers indicated an intent to benefit them. However, such consultants failed to show they were intended third party beneficiaries of insurance procurement provision of construction contract. Perron v. Hendrikson, 292 AD2d 361;

Third Dept.

Third Dept. 2008. Not Intended Beneficiary. Plaintiffs claimed third party beneficiary status because of highway work permit & contract between Telergy & Wilde for work performed. As highway permit not constitute a contract, plaintiff may not claim third party beneficiary status. Also, safety provisions of contract between Telergy & Wilde not reveal they were meant to encompass accidents arising from subcontractor’s repair of its own equipment such as to extend protection to plaintiff as intended third party beneficiary. Plaintiff’s contract action dismissed. Allen v. Telergy Network Servs., Inc., 52 AD3d 1094;  

Third Dept. 1997. Intended Beneficiary. Plaintiff entered into contract with Wilson Control to remove & replace transformer at one of facility’s power plant substations. Wilson hired MLB Industries to perform certain work for this project. MLB’s employee caused a facility-wide power outage, disrupting facility’s manufacturing operation. Plaintiff was intended beneficiary of MLB’s subcontract agreement with Wilson & as such, could maintain breach of contract action against MLB for property damages. Identify of third party beneficiary need not be specifically set forth in a contract. Subcontract required MLB to directly perform at plaintiff’s facility for Wilson in order to satisfy Wilson’s obligations to plaintiff. Such circumstances evidence clear intent by Wilson, as promisee, to give plaintiff benefit of promised performance. As such, plaintiff intended beneficiary of subcontract between Wilson & MLB. Finch, Pruyn Co. v. M. Wilson Control Serv., 239 AD3d 814;

Fourth Dept.

Fourth Dept. 2024. Intended Beneficiary. Slip & fall in parking lot owned by Balk Sea Properties & leased by Pep Boys who contracted with Facility Source to manage property. Facility Source entered into Service Provider Agreement (SPA) with third party defendant Red Rose for snow removal services. Pep Boys, as Facility Source’s customer, was intended third party beneficiary of indemnification provision of SPA as a matter of law. As such, Red Rose’s assertion that Pep Boys not entitled to contractual indemnification based on lack of privity, rejected by court. Garcia v. Black Sea Props., LLC, 227 AD3d 1486;   

Fourth Dept. 2015. Intended Beneficiary. Canisius established it was third party beneficiary of contract between Active & Lehigh Construction Group by showing existence of valid & binding contract between other parties; contract was intended for Canisius’s benefit & benefit to Canisius was sufficiently immediate, rather than incidental, to indicate assumption by contracting parties to compensate Canisius if the benefit is lost. Court rejected contention Canisius not intended beneficiary as contract refers to “the Owner” rather than referring to Canisius by name. It is almost inconceivable that Active which rendered its services in connection to major construction project, would not contemplate performance of its contractual obligations would ultimately benefit owner of the development. Beasock v. Canisius College, 126 AD3d 1403;  

Fourth Dept. 2012. Not Intended Beneficiary. Exxon not covered by indemnification agreement between Hughes & Atlanta. Such agreement expressly negated any intent to indemnify third-party beneficiaries, including Exxon. Zolfaghari v. Hughes Network Sys., LLC, 99 AD3d 1234;   Fourth Dept. 2001. Not Intended Beneficiary. Plaintiff slipped & fell on ice in parking lot owned by Widewaters & leased to K-Mart. Widewaters contracted with defendant KBH Construction for snow removal services. K-Mart relied upon contract between KBH and Widewaters to support its cross claim against KBH. As a third party seeking to enforce a contract, K-Mart had to establish it was intended beneficiary  of the contract rather than merely an incidental beneficiary. K-Mart failed to met that burden. In any event, even if K-Mart could enforce the contract, contract provided for the indemnification of Widewaters, not K-Mart. DiSano v. KBH Construction Co., 280 AD2d 951;

February 14. New York. Labor Law §240(1).  While Injury Sustained From Repair Work is Within Protection of §240(1), Maintenance Work is Not. Work Performed to Gutter. Issue of Fact Whether Repair or Maintenance.  

Rogers v. DS Restoration & Residential Servs. Co., 2026 NY Slip Op 0725, decided Feb. 11, 2026, Fourth Dept.  Plaintiff fell from ladder while cleaning gutters at a house. Homeowner thought birds were nesting behind a gutter. Defendants testified such work consisted primarily of cleaning gutter & when one of defendants discovered a hole in a fascia board, left worksite to purchase piece of flashing to cover the hole, which would not entail moving the gutter. While he was away from the house, plaintiff climbed a ladder to continue cleaning the gutter. When birds stirred in the hole, plaintiff shifted his weight on a ladder, causing ladder to slide & plaintiff to fall.

Defendants submitted affidavit of engineer who opined the hole or space at the top of fascia board is common issue caused by wear & tear. Plaintiff testified cleaning work of the gutter incidental to more extensive repair work. Such work entailed cleaning the gutter, removing the gutter, removing & replacing fascia board & then reinstalling the gutter.  

Appellate Court denied defendants’ motion holding issue of fact whether plaintiff engaged in routine maintenance by installing flashing to a hole that developed due to normal wear & tear or whether such work was necessary to restore proper functioning of the roof & gutter.

Comment. Issue is whether worker suffered accident while engaged in repair work, which provides 240(1) protection, or whether engaged in maintenance work, which does not provide 240(1) protection. Such repair work, to be covered within §240(1), requires a fall from an elevated height. If plaintiff falls from elevated height while engaged in maintenance work, 240(1) action is dismissed.

“Delineating between routine maintenance & repairs is frequently a close, fact driven issue & such distinction depends upon whether item being worked on was inoperable or malfunctioning prior to commencement of work & whether work involved replacement of components damaged by normal wear & tear.”

Where a person is investigating a malfunction, efforts in furtherance of that investigation are protected activities under 240(1).

To qualify  as “repair” work, it cannot be work arising out of wear & tear.

Inspection of integral part of the building in furtherance of repairing apparent malfunction is within 240(1) protection.

Repair Work. 240(1) Liability Imposed.

First Dept.

Drain Pipe Repair

First Dept. 2023. 240(1) Liability Imposed. Plaintiff went to repair a drain pipe on HVAC unit that required to be removed & reset at a correct angle. Extension ladder collapsed. Owner & tenant failed to raise issue of fact as to whether plaintiff performing routine maintenance rather than a repair. Absence of work ricket not controvert plaintiff’s testimony as work tickets only prepared after work was performed and plaintiff injured before he began work. Manfredonia v. 750 Astor LLC , 217 AD3d 573;

Replacing Glass Panels

First Dept. 2014. 240(1) Liability Imposed. Replacing Cracked Glass Panels in Skylight of Church Steeple Repair Work. Plaintiff & 3 coworkers sent by employer to replace cracked glass panels in skylight of defendant church’s steeple. To access steeple, plaintiff placed 14 foot extension ladder belonging to his employer on top of roof of church, leaning against steeple. Plaintiff used such ladder on 3 prior occasions without incident. As plaintiff climbed ladder, bottom of ladder “kicked out.”  Plaintiff submitted affidavit that in his many years as a glazier, skylight panels such as the ones he was replacing not crack or even wear out over time & could have remained in place sans repair or replacement  indefinitely, unless some unusual event caused them to crack or break. As glass panels not being replaced because of wear & tear, & because of plaintiff’s 30 years of being a glazier, he was competent to state the replacement of glass panels was repair work, not routine maintenance. Soriano v. St. Mary’s Indian Orthodox Church of Rockland, Inc., 118 AD3d 524;

Electrical/Wiring

First Dept. 2021. Hardwiring. 240(1) Liability Imposed. Plaintiff fell from unsecured ladder that suddenly moved as he reached overhead to hardwire a new smoke and carbon monoxide detector to replace an inoperable hardwired smoke detector that he had just removed. Such work constituted “repair” within 240(1). Rodriguez v. Milton Boron, LLC, 199 AD3d 537;

First Dept. 2007. Repairing Electrical Wiring. Plaintiff, building engineer, in process of repairing & replacing electrical wiring in order to restore lighting to entire floor, at time ladder collapsed on which he was standing. Rios v. WVF-Paramount 545 Prop., LLP, 36 AD3d 511;

Reconfiguring Cable Equipment to Utility Pole

First Dept. 2021. Plaintiff’s work replacing damaged cable equipment & reconfiguring its support system using J-hooks & anchors affixed to utility pole amount to repairs and/or alteration to equipment. Villalta v. Consolidated Edison, 197 AD3d 1078; 

Repairing Light Fixture

May 15. §240(1) Imposed For Accident Occurring During Replacing Canopy’s Pendent Lights. Such work not routine maintenance.

Rivas v. Panama Leasing, LLC, 2025 NY Slip Op 03000, First Dept. decision issued on May 15, plaintiff fell from an elevated working platform that did not allow him to reach safely  overhead & operate drills to remove old, inoperable globe light fixtures and, while the power was off, detaching the electrical wires from the old fixture, then re-wiring a new replacement light fixture into place, followed by drilling holes into the canopy’s concrete surface to permit screws to affix the new, smaller size fixture into place & placing a lightbulb cover onto the replacement fixture.

Such work involved a repair of the canopy’s pendent lights that entailed work beyond routine maintenance.  As such, 240(1) liability imposed.

First Dept. 2022. 240(1) Liability Imposed. Retrofitting Light Fixtures. Plaintiff established defendant’s liability to 240(1) through plaintiff & his coworker’s affidavit that an unstable 80 foot A-frame ladder, which was missing rubber feet, shifted, causing a fall.  Plaintiff also established that his work of retrofitting light fixtures was covered under Section 240(1) & not constitute mere maintenance. Laporta v. PPC Commercial LLC, 204 AD3d 538;

Second Dept. 2010. Repairing Light Fixture. 240(1) Liability Imposed. Plaintiff fell from stepladder which broke while he was in process of removing a ceiling light fixture in order to repair. Plaintiff’s testimony showed engaged in repair work, as he testified was in process of removing light fixture from ceiling so that it could be repaired after realizing problem not merely a burnt out bulb. That light fixture eventually repaired by replacement of component part thereof not obviate that fixture had to be removed from the ceiling to accomplish such repair. Also, repaired part was not one which regularly wore out in normal course of wear & tear. Nowakowski v. Douglas Elliman Realty, LLC, 78 AD3d 1033;

Roof

First Dept. 2016. 240(1) Liability Imposed. Fall from ladder while repairing leaky roof.Kolenovic v. 56^th Realty, LLC, 139 AD3d 588;

First Dept. 2011. 240(1) Liability Imposed. Roof Inspection “Repair Work.”  Plaintiff was doing a walk through on the roof, assessing what repairs were necessary and the materials that would be required. As plaintiff stopped near the middle of the roof, the roof started to buckle causing him to fall to his right side and land on his knee. The roof sank 2 inches at this location. The roof began leaking a year before the accident. Court rejected that plaintiff was involved in routine maintenance, which is not covered activity under 240(1). At a minimum, plaintiff integral part of repair work. Mendoza v. Highpoint Assoc., IX, LLC, 83 AD3d 1.

First Dept. 2004. 240(1) Liability Imposed. Replacing Roof Tiles Not “Routine Maintenance.” Thework plaintiff’s employer was hired to perform, replacing loose & broken slate roof tiles, cleaning gutters, installing new copper flashing & repairing a roof leak, not routine maintenance under 240(1).  Velasco v. Green-Wood Cemetery, 8 AD3d 88;

Elevator

First Dept. 2016. 240(1) Liability Imposed. Elevator Fell on Elevator Repairman. Elevator repairman, employed by Brink, injured when elevator fell on top of him inside of building. Plaintiff engaged in repair work as elevator’s safety shoes not operating properly & condition isolated event, unrelated to normal wear & tear. Also, elevator a falling object within meaning of Labor Law, even though it was not actually being hoisted or secured, as it required securing for purposes of the repair work.  McCrea v. Arnlie Realty Co., LLC, 140 AD3d 427;

Response to Pumping Station Flooding Condition

First Dept. 2013. Response to Flood at Pumping Station Constituted a “Repair.” In course of his work, plaintiff fell into steam manhole during a nor-easter. He landed in pool of boiling water up to his chest.  It was held plaintiff engaged in a repair under 240(1) as he was called upon to address a flooding condition that exceeded capacity of a pumping station. Dos Santos v. Consolidated Edison of NY, Inc., 104 AD3d 606;

Replacing Subway Rails

First Dept. 2011. Replacing Subway Rails as Part of Capital Improvement Project. Not Routine Maintenance. Plaintiff & crew installing new subway track that was part of subway modification project. Plaintiff & crew attempting to “strip” & remove a rail. Deposition testimony established rails at issue being removed for purpose of upgrading subway signal system & not because they were worn & that general context of work was 5-year capital improvement project. Such factors raise issues of fact against a finding plaintiff engaged in routine maintenance.  Medina v. City of NY, 87 AD3d 907;

Climbing Ladder in Response to Alarm

First Dept. 2002. 240(1) Liability Imposed. Response to an Alarm to Integral Building Part. Not Routine Maintenance. Plaintiff climbed water tank ladder, atop the building roof, in response to an alarm, indicating something was wrong.  Not routine maintenance of water tank. Inspection of integral part of the building in furtherance of repairing an apparent malfunction is within 240(1). Caraciolo v. 800 Second Avenue Condominium, 294 A.D.2d 200;

Second Dept.

Electrical/Wiring

Second Dept. 2017. 240(1) Liability Imposed. Removing Cable Wire From Building Walls. Plaintiff, a field technician for Verizon, was assigned to remove old cable from exterior walls of building.  While standing on ladder performing such work, ladder started to shake & lean to the left, causing a fall. Defendant failed to offer evidence that plaintiff performing merely routine maintenance as opposed to a repair pursuant to 240(1). Barone v. 1116 Ave. H. Realty, LLC, 151 AD3d 928;

Second Dept. 2007. Plaintiff hired to rewire a telephone system. Plaintiff was running wires in attic crawl space, as directed by defendant, when he fell through a sheet rock ceiling. Such work constituted “alteration” work under 240(1). Becker v. ADN Design Corp., 45 AD3d 711;

Second Dept. 2011. 240(1) Liability Imposed. Replacing Transformer in a Store. Plaintiff’s employer hired to replace bulbs & transformers in 78 overhead light fixtures, located 12 feet above floor.  Plaintiff fell from ladder engaged in such work. Held that when viewed in isolation, task of replacing transformer might be considered routine maintenance. However, as plaintiff assigned to perform general electrical work, plaintiff engaged in repair work. Fox v. H&M Hennes & Mauritz, LP, 83 AD3d 889;

Light Fixtures

Second Dept. 2019. 240(1) Liability Imposed. Plaintiff’s testimony went to repair of lighting poles. Not routine maintenance. Plaintiff fell from atop 8-foot wooden A-frame ladder while working on light fixture at Nassau Coliseum. While plaintiff’s testimony provided that some of lighting poles only required tightening or replacement of a light bulb, more intensive work also required on other lighting poles to make them function. This fell within “repairing” a light fixture., within scope of 240(1). Wass v. County of Nassau, 173 AD3d 933;

Second Dept. 2006. 240(1) Liability Imposed. Replacing photo cell in light fixture. Plaintiff fell from ladder while engaged of restoring lighting to a parking lot on premises owned by State of NY. A ladder was used to replace a neglected lighting fixture located on a pole in the lot with another fixture that would accept long-lasting, incandescent bulb. Plaintiff used ladder to access roof of shed adjacent to photo cell needing replacement. Photo cell automatically controlled parking lot lighting. While replacement of photo cell was mere routine maintenance, replacement of light fixture on lighting pole was repair work. Fitzpatrick v. State of NY, 25 AD3d 755;

Door

Second dept. 2007. 240(1) Liability Imposed. As plaintiff was repairing a non-functioning door, he was engaged in type of repair work covered under 240(1). Lofaso v. JP Murphy Assoc., 37 AD3d 769;

Replacing Door Track

Second Dept. 2008. 240(1) Liability Imposed. Fall from ladder while working in pit of elevator replacing a door track. Covered under 240(1). Riccio v. NHT Owners, LLC, 51 AD3d 897;  

Roll-Up Gate at Store Entrance

Second Dept. 2019. 240(1) Liability Imposed. Repairing Store’s Broken Roll-Up Gate. Plaintiff struck when a “differential block and chain” as he & coworkers preparing a hoisting apparatus to remove & replace broken roll-up gate.  Activity of the removal of old roll-up gate & installation of  new roll-up gate is a repair within 240(1). Statutory requirement that workers be provided with proper protection extends not only to the hazards of building materials falling but to hazards of defective parts of safety devices falling from elevated level to ground. Defendants liable whether coworker dropped the differential while preparing to use hoisting apparatus to remove old roll-up gate or the differential fell because it was inadequately secured. Barrios v. 19-19 24^th Ave. Co., LLC, 169 AD3d 747;

Refrigeration System

Second Dept. 2007. 240(1) Liability Imposed. Plaintiff, refrigeration technician, sent to refrigerated warehouse in response to emergency call as to refrigeration malfunction that took 29 hours to repair. Such work involved requiring, installing a “tattletale relay,” & replacing standard thermostat with digital electronic thermostat. Such activity constituted repair work. Juchniewicz v. Merex Food Corp., 46 AD3d 623;

Third Dept.

Repair Work. 240(1) Liability Imposed.

Plumbing Work

Third Dept. 2021. 240(1) Liability Imposed. Plaintiff responding to isolated & unexpected event, i.e., to address a low/no water pressure at a store caused by municipal water break. He fell off a ladder engaged in work. It was repair work. Eherts v. Shoprite Supermarkets, Inc., 199 AD3d 1270; 

Electrical Work

Third Dept. 2020. 240(1) Liability Imposed. Repairing Electrical Circuit. Plaintiff hired to troubleshoot & repair nonfunctioning overhead lighting system in the cold storage area of defendant’s shop. Cause of problem was not the light bulbs, light switch or the circuit breaker. Plaintiff fell from a ladder performing such work. Markou v. Sano-Rubin Construction Co., Inc., 182 AD3d 674 (2020); 

Door

Third Dept. 2021. Repair Work. 240(1) Imposed. Repairing a Door. As a door was so badly damaged by an accident earlier in the day that plaintiff and coworkers were unable to close it in the normal fashion & had to manipulate the door in an effort to close it & secure the building, it was an emergency repair, not maintenance. Russo v. Van Dale Props., LLC, 200 AD3d 1470;    

HVAC

Third Dept. 2009. Replacing Cracked Belts in HVAC System Constituted a “Repair.” 240(1) Liability Imposed. Replacing cracked belts to HVAC system. Defendants had not provided maintenance to HVAC system for over 3 years, leaving it nonfunctional & in serious state of disrepair. Plaintiff was troubleshooting & fixing problems he encountered with HVAC system. He was not merely replacing worn out parts.  Alexander v, Hart, 64 A.D.3d 940.

Fourth Dept. Repair Work. 240(1) Liability Imposed.

Replacing Rubber Flashing Around Plumbing Ventilation Pipes

Fourth Dept. 2024. Plaintiff & coworker on the roof of a concession stand at defendant’s commercial property replacing rubber flashing around plumbing ventilation pipes when plaintiff fell from the roof. Plaintiff not provided any safety devices. Distinguishing between routine maintenance & repairs 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 & tear. Here, the rubber flashing was malfunctioning and inoperable prior to replacement & that the work being performed by plaintiff was necessary to restore the proper functioning of the roof. Verhoef v. Dean, 2024 NY Slip Op 06465;  

AT&T Tower

Fourth Dept. 2016. Investigating Malfunction at AT&T Tower. Plaintiff’s employer hired by AT&T to service its towers & plaintiff dispatched to a site to investigate & remedy an alarm indicating subject tower not functioning properly. Plaintiff climbed 180-foot tower as part of investigation to examine whether malfunction related to one of 6 mounted amplifiers (TMAs). To observe the TMA, plaintiff connected his shock absorbing lanyard to the tower. He then proceeded to a boom and used two slings or chokers to lower himself to the TMA, which was 4 feet below the boom. While engaged in such work, plaintiff grabbed the slings to pull himself upward. However, he slipped & both slings latched around his wrist caused a sudden jerk & pull movement, causing injury. Delineating between routine maintenance & repairs is frequently a close, fact driven issue & such distinction depends upon whether item being worked on was inoperable or malfunctioning prior to commencement of work & whether work involved replacement of components damaged by normal wear & tear. Here, plaintiff testified he & coworkers were dispatched to a tower only when in need of a repair. Cullen v. AT&T, Inc., 140 AD3d 1588;

Commercial Freezer

Fourth Dept. 2011. 240(1) Not Dismissed.  Working on Commercial Freezer. Plaintiff fell from ladder while working on commercial freezer at ski resort. Held that plaintiff engaged in repair work. Where a person is investigating a malfunction, efforts in furtherance of that investigation are protected activities under 240(1). Ozimek v. Holiday Val., Inc., 83 AD3d 1414;

Door

Fourth Dept. 2010. 240(1) Liability Imposed. Replacing Premature Deteriorated Parts. Plaintiff replacing bearing brackets on large garage door while working on scissor lift. While engaged in such work, garage door opened, struck the scissor lift, causing plaintiff to fall. Garage doors installed only weeks before & new bearing brackets were required as the previously installed bearing brackets wearing down prematurely. Such premature deterioration cannot be deemed normal wear and tear such that replacing the brackets would constitute routine maintenance. Dean v. City of Utica, 75 AD3d 1130; 

Fourth Dept. 2007. 240(1) Liability Imposed. Overhead Door. Work being performed by plaintiff at the time of the accident, i.e., the clamping of a broken torsion spring that prevented proper functioning of the overhead door of a storage building at defendant’s nursery complex, constituted the repair of a building rather than routine maintenance. And as such, was protected under 240(1). Brown v. Concord Nurseries, Inc., 37 AD3d 1076;

Lift Station

Fourth Dept. 2010. 240(1) Liability Imposed. Troubleshooting Uncommon Lift Station Malfunction. Distinguishing between routine maintenance & repairs depends upon whether the item being worked on was inoperable or malfunctioning prior to the commencement of the work & whether the work involved the replacement of components damaged by normal wear & tear. While defendant contended injury-producing work was an inspection of a lift station, rather than a repair of that facility, it is not consistent with the spirit of the statute to isolate the moment of injury and ignore the general context of the work.  Plaintiff injured while “troubleshooting” an uncommon lift station malfunction. Pieri v. B&B Welch Assoc., 74 AD3d 1727;

Canal Signal Lamp Fourth Dept. 2009. 240(1) Liability Imposed.Non-Functioning Canal Signal Lamp. Repair Work. Plaintiff fell from elevated platform while repairing non-functioning signal lamp at a lock on Erie Canal. To establish plaintiff was performing repair work within the ambit of 240(1), as opposed to routine maintenance, plaintiff must establish the building or structure being worked upon was inoperable or not functioning properly. Plaintiff established signal light not functioning because of a broken lens, & plaintiff engaged in repairing broken lens when accident occurred. Plaintiff established such lens not typically require replacement as result of normal wear & tear. Broken lens prevented proper functioning of signal light, which was required in order for the canal to be utilized by boats. As such, such work constituted a “repair” under 240(1), rather than routine maintenance. Buckman v. State of NY, 64 AD3d 1137;    

February 14. New York. Assignment of Indemnification Clause. Also, Contractual Indemnification Not Contingent Upon a Finding of Negligence But Upon Performance of The Work. GOL §5-322.1 Not Violated.

Fino v. Macy’s Retail Holdings, Inc., 2026 NY Slip Op 00732, decided Feb. 11 by Fourth Dept. Plaintiff’s decedent injured while exiting mis-leveled elevated located at premises leased by defendant Macy’s Retail Holdings. Such elevator exclusively serviced by Gallagher Elevator Company. Macys sought contractual indemnification from Gallagher. Gallagher asserted it had no right to indemnify Macys because Macys was not originally a party to the 1992 contract containing the operative defense & indemnification clause between Gallagher & Macys’ predecessor in interest.

However, Gallagher’s president testified without contradiction such contract was subsequently assigned to Macys & both parties thereafter operated pursuant to the terms of that contract.  

Appellate Court also rejected Gallagher’s contention its contractual obligation to Macys was based upon Gallagher being negligent. “The unambiguous intent of the indemnification clause was to provide a defense & indemnification for any and all claims, whether meritorious or not, arising out of the performance or non-performance of maintenance services.” As such, Gallagher’s indemnification obligation was not premised upon it being negligent.

No evidence Macys was negligent, which would have denied it indemnification from Gallagher. Although subject elevator was older & had not been upgraded, Gallagher’s president testified “it was common for older elevators to remain in operation because those installed in the old days were built much better than they are today.” Macys had exclusive contract with elevator company to inspect, maintain & repair the elevator & had neither actual nor constructive notice of defective condition. As no evidence Macys was negligent, General Obligation Law §5-322.1 prohibiting entity from being indemnified for its own negligence, not apply here.

Comment. Contracts are freely assignable absent a statutory or public policy prohibition.

Whether indemnity contract contains express prohibition as to assignability.

To be enforceable, assignment of indemnification clause must have occurred prior to the accident.

First Dept.

First Dept. 2014. Assignment of Indemnification Clause.  Subcontractor Sorbara obligated to indemnify as result of or connected with Sorbara’s work on subject construction project. Here, indemnification triggered by plaintiff’s claim that accident caused in part by uneven condition of concrete floor. As such, premises owner Gray-Line entitled to contractual indemnity from Sorbara. Gray-Line’s liability was purely vicarious because of court’s unchallenged dismissal of the Labor Law Section 200 & common law negligence claims.  Further, Thatch’s conveyance of premises to Gray-Line before the accident effectively assigned its indemnification rights to Gray-Line pursuant to assignment clause in subcontract between Thatch & Sorbara. Rainer v. Gray-Line Dev. Co., LLC, 117 AD3d 634;

Second Dept. Second Dept. 2013. Plaintiff installing rails & brackets in elevator shaft as part of renovation project at building owned by Patmos Fifth Real Estate. Plaintiff fell several stories as plank he was standing on collapsed. Plaintiff employed by Rotavele Elevator. Renovation started by building’s prior owner, Mazl Building & Mazl sold building to Patmos. There was no merit to Rotavele’s contention that Patmos was not entitled to seek contractual indemnification against it because of assignment of its indemnity contract with Mazl to Patmos was invalid. Contracts are freely assignable absent a contractual, statutory or public policy prohibition. Subject indemnity contract contained no express prohibition as to assignability. Rotavele failed to raise issue of fact indemnity contract was assignable. Samaroo v. Patmos Fifth Real Estate, Inc., 102 AD3d 944;