MCCORMICK v. DIPERSIA (2025)

Order, Supreme Court, New York County (David B. Cohen, J.), entered on or about March 25, 2024, which denied plaintiff's motion for partial summary judgment on his Labor Law §§ 240(1) and 241(6) claims against defendants Navesink Prestige Limited Liability Company (Navesink) and Sullivan Land Services Ltd. (SLS), unanimously reversed, on the law, without costs, and the motion granted.

During a project involving the rehabilitation of homes, plaintiff was injured when he jumped into an excavated trench to perform his work.  Plaintiff testified that the trench was five-to-seven feet deep and that he asked for a ladder to access the bottom of the trench but was told to jump down.  Navesink's part owner testified that plaintiff should have been told to use a ladder and indicated that the trench would have been about 36 inches deep.  Defendant SLS's incident report described the trench as 31/212 feet deep and stated as a contributing factor that the “contractor should have had a ladder into excavation.”

Plaintiff's descent into the trench constituted an elevation-related hazard within the scope of Labor Law § 240(1) requiring a ladder or ramp for proper protection (see Auriemma v. Biltmore Theatre, LLC, 82 A.D.3d 1, 9–10, 917 N.Y.S.2d 130 [1st Dept. 2011];  Bockmier v. Niagara Recycling, Inc., 265 A.D.2d 897, 897, 696 N.Y.S.2d 605 [4th Dept. 1999]).  Accordingly, plaintiff made a prima facie case that Navesink and SLS violated Labor Law § 240(1) by failing to provide a ladder or ramp to enable him to safely climb down into the trench, where he was assigned to shovel soil to even out the landscape at the bottom of the trench.

In opposition, defendants failed to raise a triable issue of fact.  The witnesses’ varying estimates of the depth of the excavated trench, ranging from around three feet to five feet to seven feet, do not present an issue of fact as to whether plaintiff's accident resulted from a significant elevation differential (see Demetrio v. Clune Constr. Co., L.P., 176 A.D.3d 621, 622, 112 N.Y.S.3d 36 [1st Dept. 2019]).  The affidavit of defendants’ expert, opining that the trench was only two feet deep, was insufficient to raise an issue of fact since it was unsupported by the evidence, was provided six years after plaintiff's accident, and was not based on an examination of the job site (see Tuzzolino v. Consolidated Edison Co. of N.Y., 160 A.D.3d 568, 568, 75 N.Y.S.3d 166 [1st Dept. 2018]).

This was not a case where “use of ․ a safety device would defeat or be contrary to the purpose of the work” (Ragubir v. Gibraltar Mgt. Co., Inc., 146 A.D.3d 563, 564, 45 N.Y.S.3d 76 [1st Dept. 2017]).  SLS's incident report conceded that a ladder should have been made available and Navesink's witness testified that ladders were generally available.  Nor can defendants avail themselves of the sole proximate cause defense given that plaintiff demonstrated that he was not provided with a ladder (see Sanchez v. Walton Ave. Realty Assoc. LLC, 215 A.D.3d 506, 507, 186 N.Y.S.3d 203 [1st Dept. 2023]).

Since plaintiff is entitled to partial summary judgment on his Labor Law § 240 claim, the issue of defendants’ liability under Labor Law § 241(6) is academic (see Pimentel v. DE Frgt. LLC, 205 A.D.3d 591, 593, 169 N.Y.S.3d 286 [1st Dept. 2022];  Cronin v. New York City Tr. Auth., 143 A.D.3d 419, 420, 38 N.Y.S.3d 544 [1st Dept. 2016]).