Conflicting Expert Opinions Keep Plaintiff’s § 240(1) Cause of Action Alive
In a recent decision, the Appellate Division, First Department modified a Supreme Court, New York County decision that denied defendants’ motion for summary judgment to dismiss the Complaint.
In Cruz v. PMG Construction Group LLC, et al., 2025 NY Slip Op 01187, plaintiff alleged that he was injured on a construction site when at 225-250 pound, 4’ x 10’ glass window tipped over and struck the bag of his legs. Just prior to the subject incident, the window had been leaning against a stack of approximately four other windows, all similar in size, and propped up against a wall. Plaintiff had just removed a suction cup carrier from the window and had taken three to four steps towards a nearby A-frame dolly when the window fell on him.
After the conclusion of discovery, defendant moved for summary judgment to dismiss the complaint and the Supreme Court, New York County denied the defendants’ motion. The Appellate Division, First Department disagreed, noting that while the lower Court properly denied defendant’s motion with respect to Labor Law § 240(1), it should have granted the motion with respect to Labor Law §§ 241(6) and 200.
With respect to plaintiff’s Labor Law § 240(1) cause of action, that branch of defendant’s motion was properly denied due to a dispute between the parties’ respective experts and a questions of fact as to whether the glass window could have generated enough force as it toppled over and fell a short distance to the floor.
With respect to plaintiff’s Labor Law § 241(6) cause of action, the Court should have dismissed that claim because Plaintiff could not prove that the Industrial Code cited to by plaintiff was violated. The Labor Law § 200 claim should have been dismissed because there was no evidence that the defendant supervised or controlled plaintiff’s work.
The result here, in this falling object case, comes down to expert testimony regarding whether glass panels falling a short distance could generate sufficient force to become a gravity-related risk. So, be sure to tip your experts.
The Cruz decision can be found here.
For additional information, contact Philip D. Priore, Esq. and/or Michael J. Shields, Esq.
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