NUNEZ v. [And Five Third-Party Actions] (2026)

Order, Supreme Court, New York County (Nicholas W. Moyne, J.), entered May 12, 2025, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim as against defendant The Hispanic Society of America (HSA), and denied HSA's motion for summary judgment dismissing that claim and the Labor Law § 200 and common-law negligence claims as against it, unanimously modified, on the law, to grant plaintiff's motion, and otherwise affirmed, without costs.

Plaintiff demonstrated prima facie entitlement to partial summary judgment on the Labor Law § 240(1) claim.  Plaintiff, employed as a plumber's assistant, was injured when he fell over a barrier from the sidewalk level into a below-ground entranceway while attempting to retrieve a pipe at the bottom of the entranceway.  Plaintiff was instructed to work near the barrier or “fence” above the underground entranceway to set up a winch, and as such was required to lean over the barrier to perform his work.  Thus, even if plaintiff was working on the ground level, he was working on an elevated work site and was not provided with adequate safety devices to protect him from falling over the barrier (see Haskins v Metropolitan Transp.  Auth., 227 AD3d 409, 410 [1st Dept 2024];  Hoffman v SJP TS, LLC, 111 AD3d 467, 467 [1st Dept 2013];  Yost v Quartararo, 64 AD3d 1073, 1074–1075 [3d Dept 2009] ).

HSA failed to raise an issue of fact as to whether plaintiff was the sole proximate cause of his accident (see Hoffman, 111 AD3d at 467;  Gove v Pavarini McGovern, LLC, 110 AD3d 601, 603 [1st Dept 2013] ).

In light of plaintiff's entitlement to partial summary judgment on the Labor Law § 240(1) claim, we need not reach the parties’ arguments concerning Labor Law § 200and common-law negligence (see Viruet v Purvis Holdings LLC, 198 AD3d 587, 588–589 [1st Dept 2021] ).

We have considered HSA's remaining arguments and find them unavailing.