Two paths diverged on a yellow scaffold,
\nAnd sorry I could not travel both
\nAnd be one construction worker, long I stood
\nAnd looked down one with a ladder as far as I could
\nTo where it ended in the site\u2019s debris;<\/p>\n
Then took the other, much more perilous,
\nAnd having perhaps the better Labor Law claim,
\nBecause it was not a ladder, but the scaffold\u2019s crossbar.<\/p>\n
I shall be telling this tale to the First Department with a sigh:
\nAnd for ages and ages hence:
\nTwo paths diverged on yellow scaffold,
\nI took the one less traveled by,
\nAnd that has made all the difference for my \u00a7 240(1) claim.<\/p>\n
In a recent decision, Ortiz v. The City of New York, et al.,<\/em> (2024 NY Slip Op 01118), the Appellate Division, First Department modified a Supreme Court, New York County order that denied plaintiff\u2019s Labor Law \u00a7 240(1) claim, and granted defendants\u2019 cross-motion for summary judgment dismissing the Labor Law \u00a7 200 and common-law negligence claims.<\/p>\n Plaintiff alleged he fell approximately four feet as he attempted to descend from an outrigger platform on a scaffold by climbing down the cross-bracing underneath the platform.\u00a0<\/p>\n In modifying the lower court\u2019s decision regarding plaintiff\u2019s Labor Law \u00a7 240(1) claim, the First Department held that plaintiff made a prima facie showing of defendants\u2019 liability under \u00a7 240(1), and that defendants failed to raise a triable issue of fact as to whether plaintiff was the sole proximate cause of the subject accident under that section.<\/p>\n In opposition to plaintiff\u2019s motion for summary judgment as to \u00a7 240(1), defendants contended that ladders were readily available on site and that plaintiff was recalcitrant in failing to use them. To support their contentions, defendants pointed to plaintiff\u2019s deposition testimony and an affidavit by the site superintendent for the general contractor.\u00a0 The First Department held that while defendants may have established that ladders were available, they failed to establish that plaintiff \u201cknew he was expected to use them but for no good reason chose not to do so.\u201d[1]<\/a><\/p>\n The First Department then noted that plaintiff\u2019s Labor Law \u00a7 200 and common-law negligence claims were academic in light of its decision as to plaintiff\u2019s Labor Law \u00a7 240(1) claim.\u00a0<\/p>\n