“Sudden-Moving-Ladder Syndrome” Sets Up Second Department for Good Ole’ Fashioned § 240(1) Fun
The SMLS saga continues.
We’re going to be untangling some legal knotwork in the following decision, so a quick word regarding the decisions from the lower Court is helpful. The decision in Valentin v. Stathakos, 2024 NY Slip OP 03512, concerns two orders appealed from:
- The first order granted defendant/third-party plaintiff’s motion for summary judgment that dismissed plaintiff’s causes of action alleging violations of Labor Law § 200 and common law negligence; and,
- The second order denied plaintiff’s motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1).
In Valentin, plaintiff alleges that he sustained injuries while working on a construction site. As he was descending a ladder, the top end of which was affixed to a roof access opening, it detached from its affixed points, causing plaintiff to fall, and the ladder to land on top of him. Plaintiff asserted causes of action alleging violations of Labor Law §§ 200, 240(1) and 241(6), as well as common law-negligence.
At the conclusion of discovery, defendant/third-party plaintiff moved for summary judgment to dismiss the causes of action alleging violations of Labor Law § 200 and common-law negligence (and also moved for contractual indemnification against third-party defendant). Plaintiff then moved, in a separate motion, for summary judgment on his Labor Law § 240(1) claim. Neither party moved for summary judgment as to the Labor Law § 241(6) claim.
In its decision, the Appellate Division, Second Department disagreed with the Supreme Court, Kings County decisions. As to the first Order, the Second Department noted that where a claim arises out of a “dangerous premises condition,” a property owner or general contractor may be held liable where it had control over the work site and either created the dangerous condition or failed to remedy it while having actual or constructive notice of it. Constructive notice of a defect is established when it is “visible and apparent and has existed for a sufficient length of time” that it “could have been discovered and corrected.”
The Second Department held that the defendants failed to establish their entitlement to summary judgment as to the Labor Law § 200 claim because they failed to establish that they lacked actual or constructive notice of the allegedly dangerous condition of the ladder, which plaintiff described in this deposition as “rusty and old.” The evidence submitted by the defendants also failed to eliminate triable issues of fact as to whether the allegedly dangerous condition should have been discovered upon a reasonable inspection, and as such, the lower Court should have denied that motion.
As to the second Order, the Second Department disagreed again with the lower Court, citing longstanding precedent that “[t]he collapse of a scaffold or ladder for no apparent reason while a plaintiff is engaged in an activity enumerated under the statute creates a presumption that the ladder or scaffold did not afford proper protection.” Plaintiff also established, via his deposition testimony, that he was exposed to an elevation risk as contemplated by § 240(1), that the ladder collapsed for no apparent reason, and that the ladder collapse was the proximate cause of his injuries, entitling him to summary judgment as to the § 240(1) cause of action.
Defendants failed to raise a triable issue of fact in opposition. The defendants relied on “double hearsay” testimony submissions, which were combined with “nonhearsay” submissions, but were ultimately insufficient to raise a triable issue of fact as to whether plaintiff was engaged in a statutorily protected work activity at the time of his fall.
We note, this is a 2015 case, which is just before e-filing in New York became mandatory, and the underlying motion papers were unavailable for review. Here, the defendants attempted to generate a question of fact by focusing on the work that plaintiff was engaged in at the time of the accident to defeat plaintiff’s motion for summary judgment, but the Second Department was unconvinced. The Second Department notes the “hearsay” testimony was combined with “nonhearsay” testimony, which is significant because hearsay testimony alone cannot defeat a motion for summary judgment. Hearsay was combined with nonhearsay in this instance and was still not sufficient to defeat plaintiff’s entitlement to summary judgment regarding the Labor Law § 240(1) cause of action.
The Valentin decision can be found here.
For additional information, contact Philip D. Priore, Esq. and/or Michael J. Shields, Esq.
This article was prepared by McCormick & Priore, P.C. to provide information on recent legal developments of interest to our readers. This publication is in no way intended to provide legal advice or to create an attorney-client relationship. All Rights Reserved. This article may not be reprinted without the express written permission of McCormick & Priore, P.C.
