Rare Eyewitness on a § 240(1) Cause of Action
In a recent decision, the Appellate Division, Second Department affirmed a Supreme Court, Kings County decision that denied plaintiff’s motion for summary judgment as to his Labor Law §§ 240(1) and 241(6) causes of action.
In Villalta v. Tonka Realty On 5th, LLC, 2025 NY Slip Op 02237, plaintiff commenced this action to recover damages for personal injuries while he was working on a demolition project. At the time of the subject incident, plaintiff was instructed to use a rubber-footed, metal ladder situated on plywood flooring to go from the first floor to the second floor of the worksite. As plaintiff attempted to descend the ladder, upon finishing his work on the second floor, he fell from the ladder and sustained injuries. After discovery, plaintiff moved for summary judgment on his Labor Law §§ 240(1) and 241(6).
In its decision, the Supreme Court, Kings County denied plaintiff’s motion for summary judgment as to both causes of action and the Second Department affirmed. The Second Department noted that included in the submissions were deposition transcripts of plaintiff and a superintendent at the site, who witnessed the subject incident. Plaintiff maintained that the ladder “slipped back,” causing him to fall. The superintendent maintained that plaintiff “missed the rung completely” and “went through the ladder,” causing plaintiff to fall and take the ladder with him. Where “credible evidence reveals differing versions of the accident,” one under which a defendant would be liable and another under which it would not, questions of fact exist making summary judgment inappropriate. See Heras v. Ming Seng & Assoc., LLC, 203 A.D.3d 1146 (2d Dep’t 2022). The Second Department held that due to that question of fact, the Supreme Court, Kings County properly denied plaintiff’s motion for summary judgment.
A rare occurrence indeed where we have a defense eyewitness to the subject incident who can present an alternative version of the events constituting the question of fact warranting denial of plaintiff’s summary judgment motion. The problem becomes the sudden moving ladder syndrome (“SMLS”) cases where plaintiff is all alone and there is no eyewitness to refute plaintiff’s narrative of events. Those motions inevitably get granted.
The Villalta decision can be found here.
For additional information, contact Philip D. Priore, Esq. and/or Michael J. Shields, Esq.
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