VELIU v. VERIZON NEW YORK INC (2026)

Order, Supreme Court, New York County (Lisa S. Headley, J.), entered April 14, 2025, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for summary judgment as to liability on his Labor Law § 240(1) claim, reversed, on the law, without costs, and the motion denied.

Plaintiff alleges that he sustained injuries when working on a construction site as a foreman and “pitman” for nonparty De–Bar Company Construction Corporation.  Specifically, he states that he was assigned to work as the pitman and was responsible for working in the trenches.  Plaintiff averred that, as pitman, he was required to be positioned inside the trench and close to the backhoe while directing the backhoe operator, because the backhoe operator does not have an unobstructed view of the area directly under the backhoe's bucket.  Plaintiff stated that at the time of the accident he was standing in an area of the trench that was three to four feet deep when a large piece of concrete curb that was being hoisted several feet into the air rolled out of the backhoe's bucket and struck plaintiff's leg.

Supreme Court granted plaintiff's motion for summary judgment on liability on his Labor Law § 240(1) claim, noting that, although there were “two conflicting versions of how the accident occurred, under either version, safety devices were either absent or inadequate to protect the plaintiff.”

We find that plaintiff was not entitled to summary judgment on the issue of liability on his Labor Law § 240(1) claim for two reasons.  First, there are issues of fact as to how his injuries occurred.  Plaintiff alleges that an object slid off a backhoe and fell on him.  However, Michael Castellano, one of plaintiff's coworkers, submitted an affidavit in which he stated that he witnessed the accident, and saw that “a piece of concrete curb overlay became detached from the underlying curb and sidewalk as part of the excavation work taking place.  The curb slid into the trench where plaintiff was standing,” striking plaintiff on the left leg.  The conflicting accounts raise a credibility determination which is the province of the factfinder (see Valle v. Port Auth. of N.Y. & N.J., 189 A.D.3d 594, 595, 137 N.Y.S.3d 350 [1st Dept. 2020] ).

Second, even if it were clear that plaintiff's injury occurred as defendant alleges, there are also issues of fact as to whether plaintiff was the sole proximate cause of the accident because he knew or should have known to use an available safety device – namely, lumber braces to brace the sides of the trench (see Anderson v. MSG Holdings, L.P., 146 A.D.3d 401, 404, 44 N.Y.S.3d 388 [1st Dept. 2017], lv dismissed 29 N.Y.3d 1100, 59 N.Y.S.3d 737, 81 N.E.3d 1217 [2017] ).  “[A]n injured worker's failure to use safety devices will not constitute the sole proximate cause of the accident unless the worker knew that he or she ‘was expected to use them but for no good reason chose not to do so’ ” (Anderson, 146 A.D.3d at 404, 44 N.Y.S.3d 388, quoting Gallagher v. New York Post, 14 N.Y.3d 83, 88, 896 N.Y.S.2d 732, 923 N.E.2d 1120 [2010] [“Liability under section 240(1) does not attach when the safety devices that plaintiff alleges were absent were readily available at the work site ․ and plaintiff knew he was expected to use them but for no good reason chose not to do so, causing an accident.  In such cases, plaintiff's own negligence is the sole proximate cause of his injury”] ).

In opposition to plaintiff's motion for summary judgment, defendant submits an affidavit by Jason Baratta, the co-owner of De–Bar.  He states that plaintiff, as pitman, was responsible for pit safety, and had instructed his coworkers to brace portions of the trench with lumber braces provided by De–Bar.  Baratta further swore that on the day of the accident plaintiff was aware that there were additional lumber braces available that could have been used to brace the portion of the trench near the concrete curb overlay.  Although plaintiff submitted a reply affidavit, he did not contradict these statements.  Therefore, even if we were to accept defendant's version of how the accident occurred, there remain issues of fact as to whether plaintiff knew or should have known that the area of the trench where the accident occurred also needed to be braced and that lumber was available that he could have directed workers to use to brace the trench.  Therefore, Iuculano v. City of New York, 214 A.D.3d 535, 185 N.Y.S.3d 144 (1st Dept. 2023), on which the dissent relies, is distinguishable because, in that case, both of the possible versions of the accident occurred because of the failure of a safety device.  That is not necessarily true in this case.

We concur with our dissenting colleagues in rejecting defendant's claim that plaintiff's position as foreman and “pitman” would require that plaintiff's motion be denied if the accident had occurred as defendant claims (see Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 500, 601 N.Y.S.2d 49, 618 N.E.2d 82 [1993];  Collins v. W. 13th St. Owners Corp., 63 A.D.3d 621, 622, 882 N.Y.S.2d 85 [1st Dept. 2009] ).

Contrary to defendant's argument, Labor Law § 240(1) may apply to a falling object due to a trench collapse caused by improper bracing or shoring (see Rivas v. Seward Park Hous. Corp., 219 A.D.3d 59, 64–65, 195 N.Y.S.3d 188 [1st Dept. 2023] ).  Here, the trench depth of at least two feet created an elevation differential that was not de minimis (see id. at 64, 195 N.Y.S.3d 188).

Supreme Court correctly concluded that under both versions of the accident a violation of Labor Law § 240(1) was a proximate cause of plaintiff's injuries (see Iuculano v. City of New York, 214 A.D.3d 535, 535–536, 185 N.Y.S.3d 144 [1st Dept. 2023] ).  Accordingly, the award of summary judgment to plaintiff should be affirmed.

Defendant Verizon New York Inc. hired plaintiff's employer, nonparty De–Bar Contracting Company, to install underground PVC pipes for Verizon's cables.  At his deposition, plaintiff stated that during excavation of the street his coworker used a backhoe bucket to lift a curb overlay out of the trench.  When the curb was several feet in the air, it rolled off the bucket and struck plaintiff as he stood in the excavated pit.

Plaintiff moved for summary judgment, relying on his deposition testimony to establish prima facie entitlement to judgment as a matter of law.  In opposition, defendant submitted affidavits from plaintiff's coworker Michael Castellano and Jason Baratta, a co-owner of De–Bar.  Castellano was operating the backhoe at the time of the accident and disputed plaintiff's account.  In particular, Castellano stated that the backhoe did not “hoist any unsecured piece of concrete curb material into the air” and that no such curb rolled off his backhoe bucket.  Rather, the accident occurred “when a piece of concrete curb overlay became detached from the underlying curb and sidewalk as part of the excavation work taking place.”  According to Castellano, although the trench was braced in other places, the trench lacked bracing in the area where the curb overlay became detached.

Baratta did not witness the accident, but he was the highest-ranking member of De–Bar on site that day.  Baratta described plaintiff as the “job foreman and pit man.”  As a pit man, plaintiff would stand in the trench and direct the backhoe operator.  The trench was anywhere from two- to four-feet deep.  According to Baratta, plaintiff, as a pit man, was responsible for pit safety, including instructing workers to use lumber to brace portions of the trench.  Baratta also stated that “an adequate supply of lumber for bracing the trench” was available on site.

Labor Law § 240(1) requires that certain workers be properly protected from gravity-related risks (see e.g. Barreto v. Metropolitan Transp. Auth., 25 N.Y.3d 426, 433, 13 N.Y.S.3d 305, 34 N.E.3d 815 [2015] ).  As relevant here, the statute “imposes upon owners, contractors and their agents a nondelegable duty that renders them liable regardless of whether they supervise or control the work” (id., citing Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 39, 790 N.Y.S.2d 74, 823 N.E.2d 439 [2004] ).  In its application, the section “should be ‘construed as liberally as may be for the accomplishment of [its] purpose’ ” (Garcia v. Neighborhood Partnership Hous. Dev. Fund Co., Inc., 113 A.D.3d 494, 495, 980 N.Y.S.2d 6 [1st Dept. 2014], quoting Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 521, 493 N.Y.S.2d 102, 482 N.E.2d 898 [1985];  see O'Brien v. Port Auth. of N.Y. & N.J., 29 N.Y.3d 27, 33, 52 N.Y.S.3d 68, 74 N.E.3d 307 [2017] ).  Additionally, “where an accident is caused by a violation of the statute, the plaintiff's own negligence does not furnish a defense” (Cahill, 4 N.Y.3d at 39, 790 N.Y.S.2d 74, 823 N.E.2d 439;  see Encarnacion v. 3361 Third Ave. Hous. Dev. Fund Corp., 176 A.D.3d 627, 629, 112 N.Y.S.3d 31 [1st Dept. 2019] ).

The conflicting accounts of the accident from plaintiff and defendant do not present a triable issue of fact because both versions include a violation of Labor Law § 240(1) as a proximate cause of plaintiff's injuries (see Iuculano, 214 A.D.3d at 535–536, 185 N.Y.S.3d 144;  see also Cashbamba v. 1056 Bedford LLC, 168 A.D.3d 638, 639, 92 N.Y.S.3d 37 [1st Dept. 2019];  John v. Baharestani, 281 A.D.2d 114, 118, 721 N.Y.S.2d 625 [1st Dept. 2001] ).  Plaintiff's account, for its part, is a basic statutory violation resulting from failure to properly secure a hoisted object (see Gallegos v. Bridge Land Vestry, LLC, 188 A.D.3d 566, 567, 136 N.Y.S.3d 247 [1st Dept. 2020];  see also Valarezo v. HP Jamsta Hous. Dev. Fund Co. Inc., 246 A.D.3d 678, 678–679, 252 N.Y.S.3d 71 [1st Dept. 2026] ).

Likewise, Castellano's version involves a statutory violation as a proximate cause.  As the majority acknowledges, Labor Law § 240(1) may apply to a falling object due to a trench collapse caused by absent or improper bracing (see Rivas v. Seward Park Hous. Corp., 219 A.D.3d 59, 64–65, 195 N.Y.S.3d 188 [1st Dept. 2023] ).  Further, the trench depth of at least two feet created an elevation differential that was not de minimis, especially considering that the concrete curb overlay, which weighed between 100 to 150 pounds, generated sufficient force to fracture plaintiff's ankle (see Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 605, 895 N.Y.S.2d 279, 922 N.E.2d 865 [2009];  Rivas, 219 A.D.3d at 64, 195 N.Y.S.3d 188).  The lack of adequately constructed and placed bracing thus constituted an absence of proper protection and a violation of the statute (see Iuculano, 214 A.D.3d at 535–536, 185 N.Y.S.3d 144 [summary judgment properly awarded to plaintiff where differing versions involved either nonexistent or inadequate safety devices];  see also Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 285, 771 N.Y.S.2d 484, 803 N.E.2d 757 [2003] [“proper protection” is “the heart of the statute”] ).

There are otherwise no issues of fact preventing summary judgment.  Although an injured worker's failure to use safety devices may constitute the sole proximate cause of an accident, a worker is recalcitrant only if they knew that they were “expected to use the[ ] [safety device] but for no good reason chose not to do so” (Gallagher v. New York Post, 14 N.Y.3d 83, 88, 896 N.Y.S.2d 732, 923 N.E.2d 1120 [2010];  see Anderson v. MSG Holdings, L.P., 146 A.D.3d 401, 404, 44 N.Y.S.3d 388 [1st Dept. 2017], lv dismissed 29 N.Y.3d 1100, 59 N.Y.S.3d 737, 81 N.E.3d 1217 [2017] ).  Here, defendant submitted no evidence that the accident occurred due to plaintiff's disregard of a specific safety instruction, and the record does not support any inference that plaintiff refused to use a safety device for “no good reason” (see e.g. Latteri v. Port of Auth. of N.Y. & N.J., 205 A.D.3d 546, 546, 166 N.Y.S.3d 529 [1st Dept. 2022];  Morales v. 2400 Ryer Ave. Realty, LLC, 190 A.D.3d 647, 648, 136 N.Y.S.3d 881 [1st Dept. 2021];  see also DeRose v. Bloomingdale's Inc., 120 A.D.3d 41, 47, 986 N.Y.S.2d 127 [1st Dept. 2014] [describing realities of economic pressure on workers] ).  Defendant's argument that the accident occurred due to plaintiff's failure to use appropriate lumber bracing therefore “amount[s] to, at most, comparative negligence, which is not a defense to a Labor Law § 240(1) violation” (Encarnacion, 176 A.D.3d at 629, 112 N.Y.S.3d 31;  see Blake, 1 N.Y.3d at 290, 771 N.Y.S.2d 484, 803 N.E.2d 757 [“if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it”] ).

Importantly, Labor Law § 240(1) “is intended to place the ultimate responsibility for building practices on the owner and general contractor in order to protect the workers who are required to be there but who are scarcely in a position to protect themselves from accidents” (Lombardi v. Stout, 80 N.Y.2d 290, 296, 590 N.Y.S.2d 55, 604 N.E.2d 117 [1992] ).  Moreover, “[i]t is the responsibility of the contractor and owner—not the individual worker—to provide and place appropriate safety devices at the particular work site” (Ramos v. Port Auth. of N.Y. & N.J., 306 A.D.2d 147, 148, 761 N.Y.S.2d 57 [1st Dept. 2003] ).  Accordingly, defendant may not impose the responsibility “on plaintiff to construct an adequate safety device” (Collins v. West 13th St. Owners Corp., 63 A.D.3d 621, 622, 882 N.Y.S.2d 85 [1st Dept. 2009];  see Rivas, 219 A.D.3d at 61, 195 N.Y.S.3d 188 [describing construction of bracing] ).

Contrary to defendant's argument, plaintiff's accident is distinguishable from Valle v. Port Auth. of N.Y. & N.J., 189 A.D.3d 594, 137 N.Y.S.3d 350 (1st Dept. 2020).  There, questions of fact existed as to whether plaintiff affirmatively created the predicate conditions of the accident through his exercise of authority as general foreman (see Valle at 594–595, 137 N.Y.S.3d 350 [describing several “events and decisions” directed by the plaintiff leading to the accident] ).  Among other ways of putting the accident in motion, the plaintiff in Valle “ordered his workers to unload the truck after the load became unbalanced, and directed his workers to use a pallet jack to unload the cement boards in the damaged part of the load instead of continuing to unload them by hand using A-frame dollies” (id. at 595, 137 N.Y.S.3d 350;  see also id. [noting “the unique nature of the inquiry in this case”] ).

Ultimately, under the circumstances, which include the presence of plaintiff's direct superior on site on the day of the accident, defendant may not avoid its duties under Labor Law § 240(1) by requiring plaintiff to be his own safeguard (see e.g. Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 500, 601 N.Y.S.2d 49, 618 N.E.2d 82 [1993] [“It is by now well established that the duty imposed by Labor Law § 240(1) is nondelegable”];  see also Collins, 63 A.D.3d at 622, 882 N.Y.S.2d 85).

For these reasons, I dissent.

All concur except Rodriguez and Pitt Burke, JJ., who dissent in a memorandum by Rodriguez J. as follows: