DE SOUZA v. 4720 THIRD AVE LLC (2026)

Order, Supreme Court, Bronx County (Erik L. Gray, J.), entered on or about November 17, 2025, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim and his Labor Law § 241(6) claim premised on Industrial Code (12 NYCRR) § 23–2.2(a), unanimously modified, on the law, to the extent of granting plaintiff partial summary judgment on the Labor Law § 240(1) claim, dismissing the Labor Law § 241(6) claim as academic, and otherwise affirmed, without costs.

Plaintiff “established prima facie entitlement to summary judgment on his Labor Law § 240(1) claim by submitting proof, including an expert affidavit, that he fell from an unsecured [eight]-foot A-frame ladder that suddenly moved” as he was removing plywood sheets from the ceiling above him (Rodas–Garcia v. NYC United LLC, 225 A.D.3d 556, 556, 207 N.Y.S.3d 473 [1st Dept. 2024] ).  Plaintiff's testimony that he fell from the ladder after it was struck by a falling piece of plywood is uncontroverted.  It is irrelevant whether plaintiff was on the sixth step of the ladder when the plywood fell, as he testified, or on the second step of the ladder, as his coworker averred, because a fall from a height of two feet can constitute the type of elevation-related risk that is covered by the protections of Labor Law § 240(1) (see Casabianca v. Port Auth. of N.Y. & N.J., 237 A.D.2d 112, 113, 655 N.Y.S.2d 2 [1st Dept. 1997] ).

Defendants' argument that plaintiff was the sole proximate cause of his accident is unavailing.  Even if plaintiff was negligent, it is “conceptually impossible” for a plaintiff's negligence to be the sole proximate cause where it is shown that defendants' violation of Labor Law § 240(1) was also a proximate cause of the accident (see Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 290, 771 N.Y.S.2d 484, 803 N.E.2d 757 [2003] ).  In any event, plaintiff was not solely liable for the accident, because he followed his employer's instruction in performing the work (see DaSilva v. Toll GC LLC, 224 A.D.3d 540, 541, 205 N.Y.S.3d 363 [1st Dept. 2024] ).

Further, defendants were not absolved of taking measures to ensure that the plywood that caused the accident was secured and that it did not injure plaintiff as it descended from the ceiling, simply because the purpose of plaintiff's work was to remove the plywood (see Diaz v. Raveh Realty, LLC, 182 A.D.3d 515, 515–516, 120 N.Y.S.3d 776 [1st Dept. 2020] ).

Finally, plaintiff's Labor Law § 241(6) claim is academic considering our determination with respect to his motion for partial summary judgment on his Labor Law § 240(1) claim (see Malan v. FSJ Realty Group II LLC, 213 A.D.3d 541, 542, 185 N.Y.S.3d 5 [1st Dept. 2023]).