DIAZ v. LLC (2026)

Order, Supreme Court, New York County (David B. Cohen, J.), entered on or about January 14, 2026, which denied plaintiff's motion for summary judgment on the issue of liability on his Labor Law § 240(1) claim as against defendants Boston Properties, Inc., Petretti & Associes LLC, and Sovereign Mechanical Corp. (collectively, defendants), and, upon a search of the record, granted defendants summary judgment dismissing the second amended complaint, unanimously reversed, on the law, without costs, the second amended complaint reinstated, and plaintiff's motion granted.

Plaintiff's testimony that he fell because he lost his balance and the ladder on which he was standing shook established his prima facie entitlement to summary judgment on the issue of liability on his Labor Law § 240(1) claim (see e.g. Nieto v. CLDN NY LLC, 170 A.D.3d 431, 432, 93 N.Y.S.3d 553 [1st Dept. 2019];  Caceres v. Standard Realty Assoc., Inc., 131 A.D.3d 433, 433–434, 15 N.Y.S.3d 338 [1st Dept. 2015], appeal dismissed 26 N.Y.3d 1021, 20 N.Y.S.3d 333, 41 N.E.3d 1149 [2015] ).  Contrary to the motion court's conclusion, “[i]t is irrelevant whether plaintiff initially lost his balance before or after the ladder [shook] because ․ the ladder failed to remain steady under plaintiff[ ] ․ as he performed his work” (Plywacz v. 85 Broad St. LLC, 159 A.D.3d 543, 544, 72 N.Y.S.3d 80 [1st Dept. 2018] ).  Nor is this “a case where an issue of fact is raised as to whether plaintiff simply lost his balance or footing while working on a properly secured ladder.  Indeed, plaintiff's fall was directly related to the work that he was performing, as opposed to his own misstep” (Ping Lin v. 100 Wall St. Prop. L.L.C., 193 A.D.3d 650, 652, 148 N.Y.S.3d 71 [1st Dept. 2021] [internal citations omitted] ).  “Defendants were obligated to ensure that the ladder was secured to something stable” (Schultze v. 585 W. 214th St. Owners Corp., 228 A.D.2d 381, 381, 644 N.Y.S.2d 722 [1st Dept. 1996] ).  “Where a ladder is offered as a work-site safety device, it must be sufficient to provide proper protection.  It is well settled that failure to properly secure a ladder, to ensure that it remain[s] steady and erect while being used, constitutes a violation of Labor Law § 240(1)” (Kijak v. 330 Madison Ave. Corp., 251 A.D.2d 152, 153, 675 N.Y.S.2d 341 [1st Dept. 1998];  see e.g. DiBrino v. Rockefeller Ctr. N., Inc., 230 A.D.3d 127, 130–131, 215 N.Y.S.3d 13 [1st Dept. 2024], affd ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op. 07077 [2025] ).  Defendants' failure to do so in this case established plaintiff's entitlement to summary judgment.

Defendants failed to raise an issue of fact as to whether plaintiff was the sole proximate cause of his accident.  The only evidence on which defendants relied was a recorded statement purportedly made by plaintiff after his accident that appears on a single page from his medical records.  However, not only was the medical record uncertified and, therefore, inadmissible, but plaintiff's description of the accident in that statement was not germane to his diagnosis or treatment (see Brito v. City of New York, 246 A.D.3d 428, 429, 248 N.Y.S.3d 54 [1st Dept. 2026] ).  Accordingly, the motion court should not have dismissed plaintiff's Labor Law § 240(1) claim, but rather should have granted plaintiff's motion for partial summary judgment on the issue of liability on that claim.

Because plaintiff's motion only concerned his Labor Law § 240(1) claim, the court should not have searched the record and granted defendants summary judgment on plaintiff's other causes of action (see Dunham v. Hilco Constr. Co., 89 N.Y.2d 425, 429–430, 654 N.Y.S.2d 335, 676 N.E.2d 1178 [1996];  Castlepoint Ins. Co. v. Moore, 109 A.D.3d 718, 719, 974 N.Y.S.2d 8 [1st Dept. 2013];  New Hampshire Ins. Co. v. MF Global, Inc., 108 A.D.3d 463, 467, 970 N.Y.S.2d 16 [1st Dept. 2013] ).