Climbing Wrong Side of Ladder Still Prima Facie for Labor Law § 240(1) Claim

If you were wondering “What if plaintiff completely disregards the warning labels on a ladder?  Does he still have a Labor Law § 240(1) claim if he then falls off of it?” — it’s your lucky day. 

In a recent decision, the Appellate Division, First Department unanimously affirmed a lower Court decision that granted plaintiff’s motion for partial summary judgment as to liability on his Labor Law § 240(1) claim. 

In Nunez v. SY Prospect LLC, 2024 NY Slip Op 01782 (1st Dep’t 2024), plaintiff had been hired to work on a ladder to caulk and paint a stairwell inside the defendant owner’s building.  Plaintiff alleged that the defendant owner failed to provide any safety devices or assistance to ensure the stability of the ladder plaintiff was using, which “abruptly shook” resulting in the subject incident.

The Supreme Court, Bronx County held that the defendant owner, in opposing plaintiff’s motion, did not present any evidence that appropriate safety equipment was available to secure the ladder or prevent a fall, nor did they refute plaintiff’s testimony that he was not provided with any safety devices.  Defendant owner did proffer a “conclusory affidavit” from plaintiff’s supervisor in which he stated, without elaboration, that he observed plaintiff ascend the wrong side of the subject ladder and told plaintiff to “go up the other side” of the subject ladder. 

The First Department agreed with the lower Court, noting that the recalcitrant worker defense relied on by the defendant owner was inapplicable in view of the undisputed fact that no adequate safety devices were provided. 

Notably, the First Department noted that alleged discrepancies in plaintiff’s testimony were insufficient to create an issue of fact where it is undisputed that plaintiff lost his balance and fell from an unsecured ladder.  The First Department’s decision does not outline the specifics of the discrepancies, or directly dictate the level such discrepancies need rise to in order to be sufficient to create an issue of fact.  Instead, the First Department cited to Orellano v. 29 East 37th Street Realty Corp., 292 A.D.2d 289, 740 N.Y.S.2d 16 (1st Dep’t 2002), which held that so long as there is no dispute that plaintiff’s injuries were caused by his fall, discrepancies as to how or why the plaintiff fell off the ladder are irrelevant. 

The Nunez decision can be found here.

The Orellano decision can be found here.

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