JARA SALAZAR v. [And Other Actions] (2024)

Order, Supreme Court, New York County (Sabrina Kraus, J.), entered October 25, 2023, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim, unanimously reversed, on the law, without costs, and the motion granted.

The court should have granted plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim.  Plaintiff was standing on an A-frame ladder while removing a main sprinkler pipe hung from the ceiling, when the unsecured pipe fell and struck his ladder, causing him to fall to the ground.  Defendants are liable for these injuries because plaintiff was not provided any safety devices except an unsecured ladder (see Rivera v. 712 Fifth Ave. Owner LP, 229 A.D.3d 401, 402, 213 N.Y.S.3d 56 [1st Dept. 2024];  Franco v. 1221 Ave. Holdings, LLC, 189 A.D.3d 615, 615, 134 N.Y.S.3d 709 [1st Dept. 2020]).

Plaintiff was also not provided any safety devices to secure the pipe while it was being removed (see Czajkowski v. City of New York, 126 A.D.3d 543, 543, 2 N.Y.S.3d 900 [1st Dept. 2015]).  The use of a safety device to secure the pipe would not have impeded the work in progress (see Kosavick v. Tishman Constr. Corp. of N.Y., 50 A.D.3d 287, 288, 855 N.Y.S.2d 433 [1st Dept. 2008]).  Even if plaintiff's coworkers were supposed to hold the pipe as he cut it, “people are not safety devices within the meaning of Labor Law § 240(1)” (Iuculano v. City of New York, 214 A.D.3d 535, 536, 185 N.Y.S.3d 144 [1st Dept. 2023]).  Nor was plaintiff required to proffer an expert affidavit (see Rincon v. New York City Hous. Auth., 202 A.D.3d 421, 422, 158 N.Y.S.3d 567 [1st Dept. 2022]).

There is no triable issue of fact as to whether plaintiff was a recalcitrant worker.  While defendants contend that plaintiff's foreman gave him safety instructions concerning how to cut the pipe and where to place the ladder so that it would not be hit by a falling pipe, plaintiff was not recalcitrant because he was not provided with an adequate safety device to secure the pipe “in the first instance” (Gutierrez v. 451 Lexington Realty LLC, 156 A.D.3d 418, 419, 66 N.Y.S.3d 463 [1st Dept. 2017];  see Stolt v. General Foods Corp., 81 N.Y.2d 918, 920, 597 N.Y.S.2d 650, 613 N.E.2d 556 [1993]).

There is also no issue of fact as to whether plaintiff was the sole proximate cause of the accident because, even if the length of the pipe that plaintiff cut was too long, he was not provided with an adequate safety device to secure the pipe (see Gutierrez, 156 A.D.3d at 419, 66 N.Y.S.3d 463).  Furthermore, even if plaintiff disregarded an instruction not to place the ladder where the pipe could hit it, that was not the sole proximate cause of the accident as “an instruction to avoid an unsafe practice is not a sufficient substitute for providing a worker with a safety device to allow him to complete his work safely” (Saavedra v. 111 John Realty Corp., 179 A.D.3d 442, 442, 115 N.Y.S.3d 303 [1st Dept. 2020] [internal quotation marks omitted]).