CESPEDES v. EL KAM LEXINGTON AVENUE LLC (2026)

Order, Supreme Court, Bronx County (Myrna Socorro, J.), entered June 30, 2025, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for summary judgment on the issue of liability on his Labor Law § 240(1) cause of action and denied defendants’ motion for summary judgment dismissing that cause of action, unanimously affirmed, without costs.

Plaintiff established his prima facie burden by showing that defendants failed to provide an adequate safety device as required by Labor Law § 240(1) as the object which fell on him “required securing for the purposes of the undertaking” being performed (Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 268 [2001];  see Cardenas v. One State St., LLC, 68 AD3d 436, 438 [1st Dept 2009];  Pritchard v. Tully Constr.  Co., Inc., 82 AD3d 730, 731 [2nd Dept 2011] ).  Plaintiff and his coworkers were in the process of lowering a heavy, cumbersome piece of machinery called a switchgear by hand into an elevator when the top part of the switchgear fell on him, cracked and knocked off his hard hat, and caused him to fall backwards.  It is undisputed that the switchgear was not secured by a hoist or other safety device.  Plaintiff testified that on previous days a device had been used to lower switchgears, but that equipment was not provided or available on the date of the accident.

Plaintiff also established that his injury was caused by a significant elevation differential pursuant to Labor Law § 240(1) (see Argueta v. 39 W 23rd St. LLC, 236 AD3d 564, 565 [1st Dept 2025];  Ruiz v. Phipps Houses, 216 AD3d 522, 522 [1st Dept 2023];  Ladd v. Thor 680 Madison Ave LLC, 212 AD3d 107, 113–114 [1st Dept 2022] ).  Plaintiff testified at his deposition that he thought the switchgear was approximately 8–to–10 feet high, and that it was very heavy and made of metal.  Further, given his testimony that the very large and heavy switchgear fell on him with such force that it cracked and knocked off his hard hat, plaintiff established that ‘[t]he elevation differential ․ involved cannot be viewed as de minimus ․ even over the course of a relatively short descent” (Runner v. New York Stock Exch., Inc., 13 NY3d 599, 605 [2009] ).  That some part of the switchgear may have been level with plaintiff does not affect this analysis (see Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 5 [2011] ).

Defendants failed to raise a triable issue of fact in opposition to plaintiff's motion nor did they meet their burden support of their motion for summary judgment.