Just about any time bricks and gravity are involved in a fact pattern, you\u2019d be hard pressed to not think about Home Alone 2: Lost in New York.\u00a0 There, a defiant Marv attempts to hit Kevin McCallister by throwing a brick from the top of a building after making his way through a series of booby-traps in an abandoned house.\u00a0 He misses, but our subcontractor in the below fact pattern unintentionally hit the mark.\u00a0 \u00a0\u00a0<\/p>\n
In a recent decision, another involving falling bricks, the First Department modified a lower Court decision and reminded us that Plaintiff need not be able to conclusively identify the falling object in order to make a prima facie showing of entitlement to summary judgment in a Labor Law \u00a7 240(1) action.<\/p>\n
In Torres-Quinto v. 1711, LLC<\/em> (2024 NY Slip Op 01279), plaintiff alleged that while he was helping to unload HVAC piping from the back of a truck in a \u201cDelivery Zone\u201d located at street-level, in a barricaded portion of a construction site, he was struck by a falling brick.\u00a0 Also working at the site were defendant\/third-party defendant subcontractors, specifically a window instillation company, and masonry company, who were drilling into and removing portions of the fa\u00e7ade directly above where plaintiff was working on the street below.\u00a0 \u00a0<\/p>\n At the conclusion of discovery, amongst other dispositive motions, plaintiff moved for summary judgment as to his Labor Law \u00a7 240(1) claim.\u00a0 The Supreme Court, Bronx County denied plaintiff\u2019s motion at to Labor Law \u00a7 240(1), finding that triable issues of fact existed as to whether the brick debris that allegedly fell on plaintiff was a \u201cload that required securing for the purposes of the undertaking at the time it fell\u201d given the elevation differential, weight of the debris, and the amount of force it can generate in the fall.\u00a0 Notably, the lower Court cited to the facts that plaintiff never observed any bricks or broken bricks on the ground in the designated truck delivery area, and that he also never observed materials falling during the time he was assisting in unloading the subject truck.\u00a0<\/p>\n The First Department disagreed with the lower Court\u2019s finding, holding that plaintiff met his prima facie burden and focused on the facts that (1) plaintiff testified he saw brick work being performed in the area above where he was working; (2) the defendant\u2019s own incident report established that brick debris could have fallen from the building; and (3) testimony from defendant supported the incident report regarding the falling debris being a brick.\u00a0 Citing to its previous decisions, the First Department held that a plaintiff establishes his prima facie entitlement to liability on a Labor Law \u00a7 240(1) \u201cfalling object\u201d claim where he shows that he was struck by a falling object, that such object required securing, and that the lack of adequate overhead protection failed to shield against the falling object that caused plaintiff\u2019s injuries.<\/p>\n Notably, the lower Court decision\u2019s question of fact that resulted in denial of summary judgment as to plaintiff\u2019s Labor Law \u00a7 240(1) claim centered around (1) plaintiff not seeing bricks falling prior to the subject incident, and (2) plaintiff not being able to specifically identify the debris that struck him.\u00a0 The First Department cited to its previous recent decision in the Harsanyi<\/em> case, which reinforced prior holdings, that plaintiff\u2019s prima facie burden in a Labor Law \u00a7 240(1) action is not dependent on whether plaintiff observed the object that hit him.\u00a0<\/p>\n