BRITO v. CITY OF NEW YORK (2025)

Order, Supreme Court, New York (Lyle E. Frank, J.), entered on or about May 15, 2024, which, to the extent appealed from as limited by the briefs, granted the motions of defendant New York City Housing Authority (NYCHA) and third-party defendant Universal Construction Resources, Inc. (UCRI) for summary judgment dismissing the complaint, denied plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim, and deemed the respective motions of NYCHA and third-party defendants concerning the counterclaims and cross-claims as moot, unanimously reversed, on the law, without costs, the motions for summary judgment dismissing plaintiff's complaint denied, plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim granted, and the matter remanded for the purpose of addressing the motions of NYCHA and third-party defendants concerning the counterclaims and cross-claims.

Plaintiff was performing asbestos removal work on the roof of a residential building in NYCHA's Mariners Harbor complex on Staten Island when the wind knocked over three unsecured panels of galvanized steel fencing onto plaintiff, causing his injuries.  Each panel measured 8 feet in height and 8 to 10 feet in length.  Together the panels had a combined weight of approximately 150 to 225 pounds.

Plaintiff demonstrated prima facie entitlement to summary judgment on his Labor Law § 240(1) claim.  Plaintiff established that at the time the fence panels fell onto him, they were not tied down to a bulkhead or parapet wall or secured by heavy sandbags and/or metal plates, as had been the protocol for the general contractor to follow in safeguarding the fencing.  The fence had been partially dismantled and temporarily moved and stored in the area where plaintiff was working.  Because of the reasonable possibility that they might topple onto the workspace, the panels required securing for the purposes of the undertaking (see Spero v. 3781 Broadway, LLC, 214 A.D.3d 546, 547, 186 N.Y.S.3d 20 [1st Dept. 2023];  Jordan v. City of New York, 126 A.D.3d 619, 620, 3 N.Y.S.3d 605 [1st Dept. 2015];  Fabrizi v. 1095 Ave. of the Ams., L.L.C., 22 N.Y.3d 658, 662–663, 985 N.Y.S.2d 416, 8 N.E.3d 791 [2014]).

Furthermore, plaintiff's evidence demonstrated that the gravitational force generated by the wind-toppled steel fence panels was significant and a proximate cause of his injuries (see Spero v. 3781 Broadway, LLC, 214 A.D.3d at 547, 186 N.Y.S.3d 20).  Plaintiff's work involving asbestos removal fell within the protections of Labor Law § 240(1), as such work was part of a larger project to renovate multiple building rooftops at the Mariners Harbor complex (see Mananghaya v. Bronx–Lebanon Hosp. Ctr., 165 A.D.3d 117, 123, 83 N.Y.S.3d 444 [1st Dept. 2018], lv dismissed 33 N.Y.3d 969, 100 N.Y.S.3d 213, 123 N.E.3d 872 [2019]).

In opposition to plaintiff's prima facie showing on the Labor Law § 240(1) claim, NYCHA and UCRI failed to raise a triable issue of fact.  Their argument that the fence had no connection to plaintiff's work, as the fence's purpose was purely to keep the building residents from entering the rooftop work zone during nonworking hours, is unavailing (see Diaz v. HHC TS Reit LLC, 193 A.D.3d 640, 641, 147 N.Y.S.3d 35 [1st Dept. 2021]).  The Second Department cases on which the motion court relied are not controlling.  In any event, these decisions involved the failure of perimeter fences and contain no facts tending to show that the fences fell near where work was in progress (see Gurewitz v. City of New York, 175 A.D.3d 658, 109 N.Y.S.3d 167 [2d Dept. 2019];  Berman–Rey v. Gomez, 153 A.D.3d 653, 59 N.Y.S.3d 789 [2d Dept. 2017]).