ERBY v. 36 LLC (2021)

Order, Supreme Court, New York County (Paul A. Goetz, J.), entered on or about May 14, 2020, which, insofar as appealed from, granted defendants' motion for summary judgment dismissing the Labor Law § 240(1) claim, unanimously reversed, on the law, without costs, and the motion denied.

Plaintiff testified that he was standing on the fourth rung of an A-frame ladder, which he had set up on a solid and clean part of the floor and had been using without incident, directly under an air-conditioning unit, while attempting to follow his foreman's instructions by connecting a “canvas” device to air-conditioning duct work, when the air-conditioning unit fell onto his head, causing him to fall off the ladder onto the floor.  The air-conditioning unit had recently been installed by plaintiff's employer as part of its work on the project and was not part of the pre-existing building structure as it appeared before the project began.  The air-conditioning unit was mounted a few inches below the approximately 12–foot ceiling by four rods.  Plaintiff testified that two of those rods detached from the concrete ceiling, causing one end of the unit to drop, while the other end of the unit remained attached to the ceiling by two bent rods.

There is an issue of fact as to whether the air-conditioning unit constituted a falling object that was required to be secured for the purposes of the undertaking (see Gonzalez v. Paramount Group, Inc., 157 A.D.3d 427, 66 N.Y.S.3d 122 [1st Dept. 2018];  compare Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 727 N.Y.S.2d 37, 750 N.E.2d 1085 [2001], and Fabrizi v. 1095 Ave. of the Ams., L.L.C., 22 N.Y.3d 658, 663–664, 985 N.Y.S.2d 416, 8 N.E.3d 791 [2014]).

Moreover, issues of fact exist as to whether the ladder provided adequate protection to plaintiff under Labor Law § 240(1), or whether he should have been provided with a different safety device such as a scaffold with safety railings to prevent him from falling (see e.g. Higgins v. TST 375 Hudson, L.L.C., 179 A.D.3d 508, 510, 119 N.Y.S.3d 80 [1st Dept. 2020]).