LAGRIPPO v. 95TH AND THIRD LLC (2025)

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered November 6, 2023, which, to the extent appealed from as limited by the briefs, granted defendants’ motion for summary judgment dismissing the Labor Law § 240(1) claim and denied the motion of the injured plaintiff Louis M. LaGrippo (plaintiff) for summary judgment on the issue of liability on that claim, unanimously modified, on the law, to deny defendants’ motion insofar as it sought to dismiss the Labor Law § 240(1) claim, and otherwise affirmed, without costs.

Plaintiff, now deceased, testified at his deposition that he sustained biceps and shoulder injuries while installing a heavy marble slab on a bathroom wall during a construction project.  To install the marble slab, plaintiff and his coworker were required to lift the slab onto two 15–inch–high inverted buckets set up on opposite ends of the slab, then stand on the buckets and attach two suction cups to the slab to lift it to the height of the bathroom ceiling.  Plaintiff testified that his injury occurred as he was standing in an awkward position, trying to maintain his balance, because the “buckets were wobbling.”  According to plaintiff, his foreman had requested a baker scaffold but none was provided.  Furthermore, the foreman and coworker averred that, although a baker scaffold could not be used in the space, a sturdy wooden bench could have been used to perform the job.

Defendants failed to establish prima facie entitlement to summary judgment dismissing plaintiff's Labor Law § 240 cause of action, as the record presents an issue of fact as to whether plaintiff was injured while trying to avoid falling from the bucket while lifting the marble slab, and whether the injury could have been prevented if defendants had provided an adequate protective device to enable him to accomplish his work at a height (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];  Prekulaj v. Terano Realty, Inc., 235 A.D.2d 201, 202, 652 N.Y.S.2d 10 [1st Dept. 1997]).  Because Labor Law § 240(1) applies so long as the “harm directly flowed from the application of the force of gravity to an object or person” (Lacey v. Turner Constr. Co., 275 A.D.2d 734, 735, 713 N.Y.S.2d 207 [2d Dept. 2000][citation omitted]), plaintiff's claim is not defeated by the fact that he did not actually fall.  On the contrary, this Court has consistently held that the statute applies where a worker was injured in the process of “preventing himself from falling” (Reavely v. Yonkers Raceway Programs, Inc., 88 A.D.3d 561, 563, 931 N.Y.S.2d 579 [1st Dept. 2011] [citations omitted];  see York v. Tappan Zee Constructors, LLC, 224 A.D.3d 527, 528, 206 N.Y.S.3d 28 [1st Dept. 2024];  Prekulaj, 235 A.D.2d at 202, 652 N.Y.S.2d 10).

We reject defendants’ argument that the protection of Labor Law § 240(1) is not available because the 15–inch–tall bucket was not a “physically significant” elevation differential.  This Court has found that an inverted bucket is an inadequate safety device to raise a worker to the height required to perform the work and presents a risk within the ambit of the statute (see Portillo v. DRMBRE–85 Fee LLC, 191 A.D.3d 613, 614, 143 N.Y.S.3d 21 [1st Dept. 2021];  Ferguson v. Durst Pyramid, LLC, 178 A.D.3d 634, 635, 117 N.Y.S.3d 12 [1st Dept. 2019];  see also DeOleo v. 90 Fifth Owner, LLC, 231 A.D.3d 643, 644, 219 N.Y.S.3d 78 [1st Dept. 2024]).  The cases on which defendants rely, involving makeshift ramps, are distinguishable in that the use of a ramp did not expose the plaintiffs to an elevation-related risk (see e.g. Sawczyszyn v. New York Univ., 158 A.D.3d 510, 73 N.Y.S.3d 131 [1st Dept. 2018]).

Defendants did not raise an issue of fact as to whether plaintiff was a recalcitrant worker as there was no evidence that he was expected to use a wooden bench instead of an inverted bucket, that anyone instructed him to use a bench, or that a bench was available (see DeOleo, 231 A.D.3d at 644).

We have considered the parties’ remaining arguments and find them unavailing.