MITCHELL v. PULLMAN SST INC (2026)

Order, Supreme Court, Bronx County (Mathew Parker–Raso, J.), entered on or about August 19, 2025, which, to the extent appealed from, granted plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim and denied defendants' motion for summary judgment dismissing that claim, unanimously affirmed, without costs.

Plaintiff, the supervising foreman, and four coworkers were tasked with lifting large metal beams from the ground to the top of a 14–foot–tall rolling tower used to build sidewalk sheds.  To pass up the metal beams, plaintiff and Hugh Nelson stood on the ground;  Brian Bryne stood on the tower's intermediate seven-foot-high platform;  and two coworkers stood at the top of the rolling tower.  Plaintiff and Nelson's job was to lift the beam off the ground and into a vertical position before it was passed up to Bryne and the workers at the top.  Plaintiff testified that when the first three beams were handed to Bryne, plaintiff continued lifting while Nelson stopped lifting and went away to retrieve and set up the next beam.  Once the fourth beam was raised about one foot above the ground and Bryne had a secure grip on the beam, plaintiff instructed Nelson to let go and set up the next beam.  Plaintiff testified that he injured his back when the beam, which was raised about 41/212 feet above the ground, suddenly slipped from Bryne's hand and plaintiff wrapped his arms around the beam to prevent it from falling onto a pedestrian walkway.

The court properly granted partial summary judgment on the Labor Law § 240(1) claim as the evidence, viewed in the light most favorable to defendants as the non-moving parties (see Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 [2012] ), establishes that although plaintiff neither fell from a height nor was struck by a falling object, his injury was caused by his effort to prevent the beam from falling (see Britt v. Levgar Equities Corp., 227 A.D.3d 437, 438, 209 N.Y.S.3d 395 [1st Dept. 2024];  Skow v. Jones, Lang & Wooton Corp., 240 A.D.2d 194, 195, 657 N.Y.S.2d 709 [1st Dept. 1997], lv denied 94 N.Y.2d 758, 704 N.Y.S.2d 532, 725 N.E.2d 1094 [1999] ).  Given the beam's approximately 12–foot length and 230–pound weight and the amount of force its fall could generate, plaintiff's work did not merely involve an ordinary danger of working on a construction site (see Bain v. 50 W. Dev., LLC, 191 A.D.3d 496, 497, 138 N.Y.S.3d 324 [1st Dept. 2021] ).

In opposition, defendants failed to raise a triable issue of fact as to whether an accident as alleged by plaintiff occurred.  Plaintiff's coworkers affidavits stated only that no beam fell or was dropped, but did not contradict plaintiff's testimony that he was injured while preventing the beam from falling during the performance of work.

Defendants also failed to raise an issue of fact as to whether plaintiff was the sole proximate cause based on his position as the foreman in charge and his instruction to Nelson to stop lifting the beam.  Although a plaintiff's control over the work as the supervising foreman may support a finding that the plaintiff was the sole proximate cause (see e.g. Valle v. Port Auth. of N.Y. & N.J., 189 A.D.3d 594, 594–595, 137 N.Y.S.3d 350 [1st Dept. 2020];  Radeljic v. Certified of N.Y., Inc., 161 A.D.3d 588, 589, 77 N.Y.S.3d 397 [1st Dept. 2018] ), that is not the case here.  Contrary to defendants' characterization of plaintiff's testimony, it was not the company's practice for one of the two ground-level workers to hold the beam until the workers stationed at the top of the tower had a secure grip on the beam.  Plaintiff's testimony, read as a whole, indicates that one of the ground-level workers released the beam once the middle worker received it, and that Nelson had done so with each of the three preceding beams.  Thus, the evidence does not establish that plaintiff went against company practice by instructing Nelson to stop lifting once Bryne was holding the beam.  Accordingly, the sole proximate cause affirmative defense fails (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] ).