Quack, Quack, Quack, Quack . . .
In a recent decision, the Appellate Division, First Department reversed a Supreme Court, New York County decision that denied plaintiff’s motion for summary judgment as to his Labor Law § 240(1) claim against defendants.
In Rivera v. 712 Fifth Ave. Owner, LP, 2024 NY Slip Op 03562, plaintiff alleged that at the time of the subject incident, he was working in a building owned by defendant and undergoing demolition and renovations. Plaintiff was directed to remove metal ductwork from the ceiling of a bathroom on the 35th floor of the building, and was provided an A-frame ladder to reach the ductwork. No other safety device was provided to plaintiff, though he did perform the work with another worker. On the date of the subject incident, however, no other person was assigned to assist him with the ductwork removal.
Just prior to the subject incident, plaintiff had performed the ductwork removal for approximately two hours without issue. As he was standing on the fourth rung of the ladder, a portion of the duct he was cutting fell, hitting him and the ladder, causing him and the ladder to fall to the floor.
In its decision the Appellate Division, First Department unanimously reversed the Supreme Court, New York County decision, noting that plaintiff met his prima facie burden by establishing that he was not provided with additional safety equipment and was provided with only an unsecured ladder, which fell along with plaintiff after it was struck by a falling duct. Plaintiff was also not required to prove the ladder was defective and the fact that plaintiff was the sole witness to the subject incident does not preclude a finding of summary judgment in his favor.
The defendant failed to raise a triable issue of fact as to whether plaintiff was the sole proximate cause of the subject incident. Accident reports relied upon by defendant in their opposition contained hearsay, attributing the accident to plaintiff’s loss of balance, but there were not witnesses to the subject incident and the accident reports were not corroborated by sworn deposition testimony and did not identify the source of the information regarding plaintiff’s loss of balance.
In opposition to plaintiff’s motion, defendant also relied on an expert report which indicated that the subject ladder was not defective. The First Department rejected reliance on the expert reporting to defeat plaintiff’s motion, noting that defendant’s expert did not examine the ladder, the ductwork, or the room in which the ductwork was located. Further, any assertion by defendant’s expert that the ladder falling was caused by plaintiff, was “mere conjecture” and insufficient to rebut plaintiff’s testimony.
The Rivera decision can be found here.
For additional information, contact Philip D. Priore, Esq. and/or Michael J. Shields, Esq.
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