LATAZELA v. COMPASS SIX OWNER LLC (2026)

Order, Supreme Court, Bronx County (Erik L. Gray, J.), entered on or about September 18, 2025, which granted plaintiff's motion for partial summary judgment on his Labor Law §§ 240(1) and 241(6) claims, unanimously affirmed, without costs.

Plaintiff's evidence established his prima facie entitlement to partial summary judgment on his Labor Law § 240(1) and § 241(6) claims.  He demonstrated that he fell from a plank that was erected atop a six-foot-high scaffold platform while laying CMU blocks in the upper area of a wall, when the scaffold moved and he lost his balance, causing him to fall approximately 11 to 12 feet to the concrete floor below.  Plaintiff testified that there were no designated anchor points he could tie his harness off to, and consequently, his fall was not restrained.

Defendants' submissions in opposition to the motion failed to raise a triable issue.  Assuming, arguendo, that the hearsay statement in the EMS report was admissible as a business record, the statement did not raise a triable issue of fact on the issue of whether a Labor Law violation occurred.  The statement does not materially conflict with plaintiff's deposition testimony that he was injured in a fall from the scaffold that moved as he worked atop it.  The height from which plaintiff fell, and the lack of proper anchor points or guardrails on the scaffold, implicated the protections afforded under the Labor Law (see Saquicela–Villa v. City of New York, 247 AD3d 438, 438–439 [1st Dept 2026] ).

Nor is the opinion of defendants' biomechanical expert probative, since it is speculative insofar as it disregards the competent, consistent evidence in the record that plaintiff fell from a height and was injured (see Vitucci v. Durst Pyramid LLC, 205 AD3d 441, 442 [1st Dept 2022] ).  Further, the expert did not describe the methodology he used to determine the forces generated by the accident, nor did he identify the biomechanical engineering principle he relied upon in reaching his conclusion that the force generated by a fall from a height of 11 to 12 feet onto concrete was not consistent with the type of injuries plaintiff claims he suffered (see Munoz v. Rock Group N.Y. Corp., 200 AD3d 486, 487 [1st Dept 2021] ).

Defendants' argument that plaintiff was the sole proximate cause of his injuries is unavailing as it is it is “conceptually impossible for a statutory violation (which serves as a proximate cause for a plaintiff's injury) to occupy the same ground as a plaintiff's sole proximate cause for the injury” (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 290 [2003] ).