SILVA v. 770 BROADWAY OWNER LLC (2025)

Order, Supreme Court, New York County (Margaret A. Chan, J.), entered September 8, 2023, which, to the extent appealed from as limited by the briefs, granted the motions of defendants 770 Broadway Owner, LLC, Facebook, Inc., and L & K Partners, Inc. for summary judgment dismissing the Labor Law § 240(1) claim, denied plaintiff's cross-motion for partial summary judgment on that claim, and dismissed as academic third-party defendant Consolidated Carpet Workroom, LLC's motion for summary judgment and claim for contractual indemnification, unanimously reversed, on the law, without costs, defendants’ motions denied and plaintiff's cross-motion granted, and the matter remanded for consideration of the motion of Consolidated Carpet Workroom, LLC.

On the day of the accident, plaintiff was marking off areas of the floor with duct tape in preparation for the floor to be painted.  While plaintiff was working, he was struck on the back of the head by a ladder, causing him to lose consciousness.  Plaintiff commenced this action against defendants alleging a violation of Labor Law § 240(1), among other things.

Defendants failed to establish prima facie entitlement to summary judgment dismissing the complaint.  Plaintiff testified that the ladder, which had six rungs and was two to three meters tall (approximately six to ten feet), toppled and fell on his head as he was crouching down putting duct tape on the floor.  Although plaintiff conceded that he did not see the ladder before the accident, his deposition testimony sufficiently identified the ladder as the cause of his injuries (see Torres–Quito v. 1711 LLC, 227 A.D.3d 113, 117, 207 N.Y.S.3d 56 [1st Dept. 2024]).  Defendants did not otherwise establish entitlement to dismissal of the Labor Law § 240(1) claim.  The elevation differential involved here cannot be described as 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]).  The evidence also established that the ladder was not adequately secured for the purposes of the undertaking (see Diaz, 193 A.D.3d at 641, 147 N.Y.S.3d 35).

On his cross-motion, plaintiff established prima facie entitlement to summary judgment through his deposition testimony that he was struck by a ladder that was not properly secured.  Although inadmissible hearsay cannot be used to establish plaintiff's prima facie case, here, the admissible evidence was sufficient.  In opposition, defendants failed to raise triable issues of fact.  Moreover, it was foreseeable for a ladder resting against a wall to topple over and strike a nearby worker.  Nor could a worker knocking over the ladder be considered an intervening superseding cause in this case (see Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 562, 606 N.Y.S.2d 127, 626 N.E.2d 912 [1993]).

In view of the foregoing, we remand for consideration of third-party defendant Consolidated Carpet Workroom's motion related to the third-party claims (see Clemente v. 205 W. 103 Owners Corp., 180 A.D.3d 516, 518, 119 N.Y.S.3d 109 [1st Dept. 2020]).

We have considered defendants’ remaining contentions and find them unavailing.