GUTIERREZ v. 80 WINTHROP STREET OWNERS CORP (2026)

Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered June 24, 2025, which, to the extent appealed from as limited by the briefs, granted plaintiffs' motion for partial summary judgment on the Labor Law § 240(1) claim, and denied the motions of defendant and third-party defendant for summary judgment dismissing that claim and the Labor Law § 241(6) claim predicated on Industrial Code (12 NYCRR) § 23–5.8(b), unanimously affirmed, without costs.

Plaintiff worker was injured when a piece of terra cotta coping, which was secured to a parapet wall and anchored a suspended scaffold by C-hooks, dislodged and struck him while he was working below on the suspended scaffold.  Third-party defendant's president testified that third-party defendant replaced the piece of terra cotta coping before the accident and that “[p]ressure from the C-hook broke the piece” of terra cotta coping.

Plaintiffs established their prima facie entitlement to partial summary judgment on the Labor Law § 240(1) claim by showing that the terra cotta coping fell because it was not adequately secured (see Fabrizi v 1095 Ave. of the Ams., L.L.C., 22 NY3d 658, 662–663 [2014] ).  A properly constructed scaffold could have prevented plaintiff's accident.

Since the terra cotta coping was used to anchor the suspended scaffold and fell because of the inadequacy of a statutorily enumerated safety device, this case can be distinguished from those finding that a permanent building fixture did not violate Labor Law § 240(1) (see e.g. Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 268 [2001];  Djuric v. City of New York, 172 AD3d 456, 456 [1st Dept 2019], lv denied 34 NY3d 910 [2020] ).  Defendant's argument that it was unforeseeable that a piece of terra cotta coping used to anchor the suspended scaffolding could dislodge and fall on a worker is unavailing (see Ortega v. City of New York, 95 AD3d 125, 128 [1st Dept 2012] ).  Furthermore, plaintiffs were not required to show that the scaffold was defective (see Sanchez v. Bet Eli Co. Del. LLC., 177 AD3d 478, 479 [1st Dept 2019] ) or that the area in which plaintiff was working was normally exposed to falling objects for purposes of the Labor Law § 240(1) claim.

Because plaintiffs were properly granted partial summary judgment on the Labor Law § 240(1) claim, defendant's and third-party defendant's arguments concerning the Labor Law § 241(6) claim are academic (see Fanning v. Rockefeller Univ., 106 AD3d 484, 485 [1st Dept 2013] ).