In a recent decision, the Appellate Division, First Department upheld the lower Court\u2019s decision that granted plaintiff\u2019s motion for summary judgment as to his Labor Law \u00a7240(1) claim.\u00a0 In Asian v. Flintlock Constr. Servs., LLC<\/em> (2024 NY Slip Op), plaintiff alleged that his supervisor instructed him to use a chipping hammer weighting approximately 70 to 100 pounds to break up bricks located at the top of a wall, as part of a construction project involving the demolition of a building.\u00a0<\/p>\n Plaintiff initially performed his work while standing on a scaffolding platform, but he complained to his supervisor that he was unable to perform the work in a \u201ccomfortable or safe\u201d manner and apply sufficient force to the bricks, because the scaffold was too short to reach the top of the wall.\u00a0 Plaintiff\u2019s supervisor rejected the request to raise the scaffold, and directed plaintiff to finish the work while standing on top of the wall.\u00a0 Plaintiff testified that his consequent use of the chipping hammer while standing on top of the wall created vibrations that caused him to slip and fall.\u00a0<\/p>\n In its decision, the First Department found that the Supreme Court, New York County properly granted plaintiff\u2019s motion on the issue of liability as to Labor Law \u00a7 240(1).\u00a0 In granting plaintiff\u2019s motion, the lower Court found that the failure to provide a scaffold that was a proper height to protect him from a gravity-related injury, namely, falling off the wall.\u00a0 The First Department further agreed with the lower Court that plaintiff was not the sole proximate cause of his accident, even though he created the vibrations that led to the fall, because he was performing the work \u201cconsistent with his employer\u2019s instructions.\u201d<\/p>\n Thus the fact that the scaffolding provided by plaintiff\u2019s employer was insufficient to protect him from a gravity-related injury (falling from the wall) was in and of itself sufficient to preclude a finding that plaintiff was the sole proximate cause of his accident.\u00a0 As the lower Court also noted, the decision to work from the \u201cprecarious position\u201d on top of the wall goes to the issue of comparative fault, which is not a defense to Labor Law \u00a7 240(1).\u00a0<\/p>\n