Road Less Traveled Makes All the Difference for Labor Law § 240(1) Claim

Two paths diverged on a yellow scaffold,
And sorry I could not travel both
And be one construction worker, long I stood
And looked down one with a ladder as far as I could
To where it ended in the site’s debris;

Then took the other, much more perilous,
And having perhaps the better Labor Law claim,
Because it was not a ladder, but the scaffold’s crossbar.

I shall be telling this tale to the First Department with a sigh:
And for ages and ages hence:
Two paths diverged on yellow scaffold,
I took the one less traveled by,
And that has made all the difference for my § 240(1) claim.

In a recent decision, Ortiz v. The City of New York, et al., (2024 NY Slip Op 01118), the Appellate Division, First Department modified a Supreme Court, New York County order that denied plaintiff’s Labor Law § 240(1) claim, and granted defendants’ cross-motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims.

Plaintiff alleged he fell approximately four feet as he attempted to descend from an outrigger platform on a scaffold by climbing down the cross-bracing underneath the platform. 

In modifying the lower court’s decision regarding plaintiff’s Labor Law § 240(1) claim, the First Department held that plaintiff made a prima facie showing of defendants’ liability under § 240(1), and that defendants failed to raise a triable issue of fact as to whether plaintiff was the sole proximate cause of the subject accident under that section.

In opposition to plaintiff’s motion for summary judgment as to § 240(1), defendants contended that ladders were readily available on site and that plaintiff was recalcitrant in failing to use them. To support their contentions, defendants pointed to plaintiff’s deposition testimony and an affidavit by the site superintendent for the general contractor.  The First Department held that while defendants may have established that ladders were available, they failed to establish that plaintiff “knew he was expected to use them but for no good reason chose not to do so.”[1]

The First Department then noted that plaintiff’s Labor Law § 200 and common-law negligence claims were academic in light of its decision as to plaintiff’s Labor Law § 240(1) claim. 

The Ortiz decision can be found here.

 For additional questions, please contact Michael J. Shields, Esq. and/or Philip D. Priore, Esq.

This article was prepared by McCormick & Priore, P.C. to provide information on recent legal developments of interest to our readers.  This publication is in no way intended to provide legal advice or to create an attorney-client relationship.  All Rights Reserved. This article may not be reprinted without the express written permission of McCormick & Priore, P.C.

[1] While not expressly stated, this portion of the analysis is the First Department rejecting defendants’ “recalcitrant worker” defense to plaintiff’s Labor Law § 240(1) claim.