First Department Agrees with Lower Court on § 240(1) and Notes Plaintiff Would Have Also Won on § 241(6) Anyway

The First Department gives us another look at a case where, in opposition to plaintiff’s motion for summary judgment, inconsistencies in the account of the subject accident were insufficient to raise an issue of fact. 

In De Los Santos v. Carlyle House Inc., 2024 NY Slip Op 02775 (1st Dep’t 2024), plaintiff was working on a motorized scaffold that was descending.  While descending, due to a mechanical issue, the scaffold abruptly stopped and became unleveled, which threw plaintiff off balance, causing him to slip and fall on leaking motor oil, and fall approximately one and a half stories to a sidewalk bridge below where he was working.

Plaintiff moved for summary judgment as to his Labor Law §§ 240(1) and 241(6) claims and the Supreme Court, Bronx County, held that plaintiff met his prima facie burden, entitling him to summary judgment as to the Labor Law § 240(1) claim because the defendant failed to provide plaintiff with an adequate scaffold equipped with a railing on the side, or other safety equipment, to protect plaintiff from falling, which caused the subject incident.  In a unanimous decision, the Appellate Division, First Department affirmed the lower Court’s decision. 

We note that plaintiff’s Labor Law § 241(6) claim was predicated on Industrial Code § 23-1.7(d), which provides that employees shall not be permitted to use a scaffold or elevated working surface which is in a slippery condition. 

Although the lower Court did not address the § 241(6) claim in light of granting plaintiff’s motion for summary judgment as to § 240(1), the Appellate Division, First Department noted that the facts also meet plaintiff’s prima facie burden on summary judgment as to the § 241(6) claim as predicated on § 23-1.7(d). 

The De Los Santos decision can be found here.

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

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