Alternative Narratives Not Enough to Ward Off Summary Judgment
In a recent decision, the Appellate Division, First Department modified a Supreme Court, New York County decision that granted plaintiff’s summary judgment motion as to his Labor Law § 240(1) and denied defendants’ motion to dismiss the complaint. The First Department modified the portions of the lower Court decision that denied dismissal of plaintiff’s Labor Law §§ 200 and 241(6) and common law negligence claims.
In D’Angelo v. Legacy Yards Tenant LLC, 2025 NY Slip Op 02409, plaintiff alleged that while ascending a steel ladder on a ship, he slipped on an unknown grimy substance on the second rung from the top of the ladder, began to fall, and struck his head on a rack while falling. Plaintiff was employed by an electrician subcontractor who was performing work at the Hudson Yards Platform.
After discovery, defendants and plaintiff moved for summary judgment. The Supreme Court, New York County denied the defendants’ motion and granted plaintiff’s motion with regard to Labor Law § 240(1). The First Department agreed, noting that plaintiff established prima facie entitlement to summary judgment by offering his deposition testimony that he slipped on an unknown grimy substance while ascending a ladder. The defendants’ arguments that plaintiff merely struck his head while ascending the ladder and not after he slipped, based on contradictory statements contained in multiple accident reports, was ultimately insufficient to contradict plaintiff’s testimony that he fell because they only failed to mention he fell.
As for the Labor Law § 241(6) cause of action, which was based on Industrial Code § 23-1.7(d), the Court should have dismissed that cause of action as § 23-1.7(d) was inapplicable because the ladder from which plaintiff fell was not a “floor, passageway, walkway, scaffold, platform or other elevated working surface.” To the extent that the § 241(6) cause of action was predicated on § 23-1.7(e)(1) and (2), those industrial code sections were also inapplicable because there was no evidence plaintiff tripped over debris.
As to the Labor Law § 200 cause of action, the defendants established that they did not actually exercise supervisory control over the injury-producing work, as it was undisputed that plaintiff was instructed to do his work on the day of his accident by his own company’s supervisor.
Another instance of inconsistent statements not being enough to raise a triable question of fact as to the occurrence of the subject incident.
The D’Angelo decision can be found here.
For additional information, contact Philip D. Priore, Esq. and/or Michael J. Shields, Esq.
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