Scaffold Basket Prevented Plaintiff From Falling, Summary Judgment Still Granted
In a recent decision, the Appellate Division, Second Department modified a Supreme Court, Suffolk County decision that inter alia granted plaintiff’s motion for summary judgment as to his Labor Law § 240(1) cause of action.
In Rogers v. Scalamandre, 2024 NY Slip Op 05361, plaintiff alleges he was working on a construction site where the defendants were the general contractor who contracted with the third-party defendant who was also plaintiff’s employer. At the time of the subject incident, plaintiff used a boom lift to install louvers near the roof line of the building. While he was inside the basket of the lift he was using, and while wearing a harness attached to the lift basket, he maneuvered the lift so that it was extended in a nearly vertical position, with the left basket approximately 30 feet above the ground. According to an eyewitness, the arm of the lift then suddenly “telescoped in” on itself, causing the plaintiff to sustain injuries. Plaintiff did not fall from the basket at the time of the subject incident.
The Second Department cited long-standing precedent that “[w]hether a device provides proper protection is a question of fact, except when the device collapses, moves, falls, or otherwise fails to support the plaintiff and his or her materials. See Melchor v. Singh, 90 A.D.3d 866 (2d Dep’t 2011). The Second Department agreed with the lower Court that plaintiff established prima facie entitlement to summary judgment as a matter of law by submitting eyewitness statements establishing that the boom lift arm suddenly telescoped inward, and submitting an investigation report of an expert engineer, who opined that the boom lift malfunctioned due to poor maintenance by the defendants.
The defendants failed to raise a triable issue of fact in opposition. The Second Department rejected the defendant’s contentions that it did not violate Labor Law § 240(1) because the plaintiff did not fall from a height and stayed in the basket as immaterial. Plaintiff established that the accident occurred when the lift telescoped inward and retracted suddenly, entitling plaintiff to a presumption that the lift did not provide proper protection from an elevation-related risk.
The fact that plaintiff stayed in the basket after it fell when the arm telescoped inward, preventing him from falling to the ground was ultimately “immaterial” because while plaintiff did not fall from the basket, the basket moved downward when the arm telescoped inward, establishing the elevation-related risk that plaintiff needed protection from.
The Rogers decision can be found here.
For additional information, contact Philip D. Priore, Esq. and/or Michael J. Shields, Esq.
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