OLIVEIRA v. [And a Third-Party Action]. (2026)

Order, Supreme Court, New York County (James E. d'Auguste, J.), entered April 10, 2025, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for summary judgment on liability on his Labor Law § 240(1) claim as against defendants 5462th Realty LLC and Prestige Construction N.Y. LLC (together, defendants), and denied defendants' motion for summary judgment dismissing the Labor Law §§ 240(1) and the Labor Law § 241(6) claim premised on Industrial Code (12 NYCRR) § 23–1.7(a)(1) as against them, unanimously affirmed, without costs.

Plaintiff established prima facie entitlement to summary judgment on liability on his Labor Law § 240(1) claim by submitting deposition testimony showing that he was struck by a falling object that was within the hazards contemplated by Labor Law § 240(1), and that defendants failed to provide an appropriate safety device.  Plaintiff, who worked for a subcontractor of Prestige Construction, testified that he felt an object strike him in the back, causing him to fall, and that the item seen on the ground in a video recorded by his foreman shortly after the accident was a beam.  Further, plaintiff's foreman testified that one of plaintiff's coworkers, who worked for the same subcontractor as plaintiff, stated that he accidentally hit a beam as he was passing a form on the floor above plaintiff, causing the beam to fall (see CPLR 4549 [“A statement offered against an opposing party shall not be excluded from evidence as hearsay if made by ․ the opposing party's agent or employee on a matter within the scope of that relationship and during the existence of that relationship”] ).  This evidence is sufficient to establish that plaintiff was struck by a falling beam (see Franco v. 1221 Ave. Holdings, LLC, 189 AD3d 615, 615 [1st Dept 2020];  Kosavick v Tishman Constr.  Corp. of N.Y., 50 AD3d 287, 288 [1st Dept 2008] ).  The foreman also testified that proper safety practices required either removing or securing the beam, thus establishing that the beam was an object that required securing under the statute (see Sherman v. Babylon Recycling Ctr., 218 A.D.2d 631, 632 [1st Dept 1995], lv dismissed 87 N.Y.2d 895 [1995] ).

In opposition, defendants failed to raise a triable issue of fact.  Defendants point to no credible evidence suggesting that there are differing versions of the accident, one under which defendants would be liable and another under which they would not (see Ellerbe v. Port Auth. of N.Y. & N.J., 91 AD3d 441, 442 [1st Dept 2012] ).  Contrary to defendants' contention, it is not dispositive that plaintiff did not know exactly what caused the beam to fall (see Malan v. FSJ Realty Group II LLC, 213 AD3d 541, 542 [1st Dept 2023] ).  Additionally, the absence of an expert affidavit identifying a missing or inadequate safety device is not fatal to plaintiff's motion, as the facts of the accident demonstrate that an elevation-related safety device failed, or that no device was placed so as to provide plaintiff with the proper protection (see Viruet v. Purvis Holdings LLC, 198 AD3d 587, 587–588 [1st Dept 2021] ).

In light of the foregoing, plaintiff's Labor Law § 241(6) claim is academic (see Malan, 213 AD3d at 542).