MACAULAY v. NEW LINE STRUCTURES DEVELOPMENT LLC (2024)

Order, Supreme Court, New York County (Eric Schumacher, J.), entered April 19, 2024, which, insofar as appealed from as limited by the briefs, denied plaintiff's motion for partial summary judgment as to liability on his 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 was struck on the head when an unsecured heavy metal panel being removed from a louver broke free and fell, was proximately caused by a failure to provide him with safety devices offering adequate protection from gravity-related hazards (see Spero v. 3781 Broadway, LLC, 214 A.D.3d 546, 547, 186 N.Y.S.3d 20 [1st Dept. 2023]).  Plaintiff's expert demonstrated that the panel “required securing for the purposes of the undertaking” (Outar v. City of New York, 5 N.Y.3d 731, 732, 799 N.Y.S.2d 770, 832 N.E.2d 1186 [2005]), and that statutorily enumerated safety devices could have prevented the accident (see Aramburu v. Midtown W. B, LLC, 126 A.D.3d 498, 499–500, 6 N.Y.S.3d 227 [1st Dept. 2015]).

Both plaintiff and defendant's witness testified that the panel was about four feet wide and eight feet tall, and plaintiff and his coworker estimated that it weighed between 150 and 200 pounds.  Thus, plaintiff was exposed to an elevation-related hazard covered by Labor Law § 240(1) that was not de minimis (see Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y.3d 1, 10, 935 N.Y.S.2d 551, 959 N.E.2d 488 [2011];  Diaz v. HHC TS Reit LLC, 193 A.D.3d 640, 641, 147 N.Y.S.3d 35 [1st Dept. 2021];  Cardenas v. One State St., LLC, 68 A.D.3d 436, 437, 890 N.Y.S.2d 41 [1st Dept. 2009]).  The fact that plaintiff or his co-workers were removing or prying loose the panel when it fell does not mean that the accident was not gravity-related or render the protections of section 240(1) inapplicable, because plaintiff showed that the “type of work being performed ․ involved a load that required securing” (Diaz v. Raveh Realty, LLC, 182 A.D.3d 515, 516, 120 N.Y.S.3d 776 [1st Dept. 2020]).  Any discrepancies between plaintiff's sworn testimony and the statements attributed to him in incident report forms are insufficient to create an issue of fact where it is undisputed that plaintiff was injured when an unsecured panel fell onto his head (see Bartley v. 76 Eleventh Ave. Prop. Owner LLC, 226 A.D.3d 528, 529, 207 N.Y.S.3d 508 [1st Dept. 2024];  Cashbamba v. 1056 Bedford LLC, 168 A.D.3d 638, 639, 92 N.Y.S.3d 37 [1st Dept. 2019]).

In opposition, defendants failed to raise an issue of fact.  Defendants did not submit any evidence to rebut the opinion of plaintiff's expert or to demonstrate that the presence of a safety device would have defeated the task of removing the panels (see Rutkowski v. New York Convention Ctr. Dev. Corp., 146 A.D.3d 686, 686, 46 N.Y.S.3d 54 [1st Dept. 2017]).