MEDEROS FOR SENA v. Lucky Bear & Company et al., Defendants-Appellants. (2025)

Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered on or about June 7, 2024, which, to the extent appealed from, granted plaintiff's motion for summary judgment on the issue of liability on his Labor Law § 240(1) claim as against defendants Lucky Bear & Company and Amsterdam RMR LLC (together, defendants), unanimously affirmed, without costs.

This case stems from a construction site accident that occurred at property owned by defendants and leased to defendant Brisa Dominicana Restaurant Corp., which was being converted from a bodega into a restaurant.  Plaintiff's ward (Vinicio) was injured in an accident involving a scaffold, although no one witnessed the accident itself, and Vinicio's injuries prevent him from recalling how the accident occurred.  The record is clear, however, that, after hearing a sound, witnesses discovered Vinicio on the ground next to a collapsed/overturned scaffold.  This evidence is sufficient to establish plaintiff's prima facie entitlement to summary judgment on the issue of liability on his Labor Law § 240(1) claim (see Kind v. 1177 Ave. of the Ams. Acquisitions, LLC, 168 A.D.3d 408, 409, 91 N.Y.S.3d 394 [1st Dept. 2019];  Garcia v. 1122 E. 180th St. Corp., 250 A.D.2d 550, 551, 675 N.Y.S.2d 2 [1st Dept. 1998]).  Plaintiff's evidence was sufficient to conclude that Vinicio fell from the scaffold, and that the absence of proper protection was at least a proximate cause of his accident (see Felker v. Corning Inc., 90 N.Y.2d 219, 660 N.Y.S.2d 349, 682 N.E.2d 950 [1997];  Angamarca v. New York City Partnership Hous. Dev. Fund Co., Inc., 56 A.D.3d 264, 866 N.Y.S.2d 659 [1st Dept. 2008]).

Defendants failed to raise an issue of fact in opposition.  Even construing the unknown facts in their favor – e.g., that the scaffold had railings and working wheel locks or brakes that Vinicio did not engage before his accident – defendants still failed to fulfill their nondelegable duty to furnish Vinicio with adequate safety devices to perform his work (see generally Zimmer v. Chemung County Performing Arts, Inc., 65 N.Y.2d 513, 520, 493 N.Y.S.2d 102, 482 N.E.2d 898 [1985]).  Even if, as some witnesses speculated, plaintiff experienced some kind of medical event that caused him to fall off the scaffold, “it was not the sole proximate cause of the accident such as would absolve defendants” (Lajqi v. New York City Tr. Auth., 23 A.D.3d 159, 805 N.Y.S.2d 5 [1st Dept. 2005];  see also e.g. Deschaine v. Tricon Constr., LLC, 187 A.D.3d 599, 600, 131 N.Y.S.3d 121 [1st Dept. 2020]).  Finally, even if Vinicio was intoxicated at the time of his accident, a worker's alcohol “use amounts, at most, to comparative negligence[,] which is not a defense to a Labor Law § 240(1) claim” (Samuel v. Simone Dev. Co., 13 A.D.3d 112, 113, 786 N.Y.S.2d 163 [1st Dept. 2004]).

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