LOAIZA v. [And a Third-Party Action]. (2024)

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered August 29, 2023, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim, unanimously reversed, on the law, without costs, and the motion granted.

Plaintiff made a prima facie showing that his accident, in which he fell to the ground while performing commercial window washing on the exterior of a building, was proximately caused by a failure to provide him with safety devices offering adequate protection from falling (DeJesus v. 888 Seventh Ave. LLC, 114 A.D.3d 587, 588, 981 N.Y.S.2d 60 [1st Dept. 2014] [granting the plaintiff's motion for partial summary judgment on his section 240(1) claim, “given the evidence that the lanyard and harness ․ proved inadequate to shield him from falling”]).

On this record, it is undisputed that plaintiff assembled the available safety equipment and used it throughout his performance of the work;  among other things, he wore a harness and remained attached to two ropes after tying off the ropes to anchor points.  As an additional safety measure, plaintiff indisputably made sure his “lifeline,” a/k/a “safety line reached the ground.”  To support their claim that plaintiff's conduct was the sole proximate cause of his accident, defendants rely on plaintiff's admission that he forgot to tie a figure 8 knot at the end of the safety line (together with a rope grab, a deceleration device) which is done as part of a fall arrest system to prevent a worker from hitting the ground.  Despite plaintiff having failed to perform this safety measure, this omission was at most comparative negligence, which is not a defense to a Labor Law § 240(1) violation (see Pirozzo v. Laight St. Fee Owner LLC, 209 A.D.3d 596, 597, 177 N.Y.S.3d 32 [1st Dept. 2022]).  Moreover, defendants' recalcitrant worker defense is also unavailing as they fail to offer any evidence that plaintiff intentionally disregarded this specific safety instruction (see Jerdonek v. 41 W. 72 LLC, 143 A.D.3d 43, 46, 36 N.Y.S.3d 17 [1st Dept. 2016]).