JOYA v. Blue Stone Concrete Corp., third-party defendant. (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Carolyn E. Wade, J.), dated March 12, 2024.  The order, insofar as appealed from, granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiff's motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) is denied.

In February 2020, the plaintiff was employed by the third-party defendant, Blue Stone Concrete Corp. (hereinafter Blue Stone), and was tasked with disassembling a fence made of plywood sheets at a worksite located in Brooklyn.  According to the plaintiff, he was instructed to hold one side of the plywood fence with another worker, while a third worker removed the nails from the other side of the fence, allowing each sheet of plywood to be removed.  One of the plywood sheets fell, striking the plaintiff in the head and allegedly causing injuries.

The plaintiff commenced this action against the defendants, E 31 Partners, LLC, the owner of the subject property, and Twin Group Associates, Inc., the general contractor for the project, asserting causes of action alleging, inter alia, violations of Labor Law §§ 240(1) and 241(6).  In January 2023, the plaintiff moved, among other things, for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1).  The defendants and Blue Stone separately opposed the motion.  In an order dated March 12, 2024, the Supreme Court, inter alia, granted that branch of the plaintiff's motion.  The defendants appeal.

“Labor Law § 240(1) requires property owners and contractors to provide workers with ‘scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection’ to the workers” (Bianchi v. New York City Tr. Auth., 192 A.D.3d 745, 747, 144 N.Y.S.3d 101).  “The purpose of the statute is to protect against ‘such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured’ ” (id., quoting Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 501, 601 N.Y.S.2d 49, 618 N.E.2d 82;  see Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y.3d 1, 7, 935 N.Y.S.2d 551, 959 N.E.2d 488).

With respect to “falling object” cases, “Labor Law § 240(1) applies where the falling of an object is related to a significant risk inherent in ․ the relative elevation ․ at which materials or loads must be positioned or secured” (Ortega v. Fourtrax Contr. Corp., 214 A.D.3d 666, 667, 182 N.Y.S.3d 913 [internal quotation marks omitted];  see Flores v. Fort Green Homes, LLC, 227 A.D.3d 672, 673, 210 N.Y.S.3d 455).  A plaintiff “must demonstrate that at the time the object fell, it either was being hoisted or secured, or required securing for purposes of the undertaking” (Fabrizi v. 1095 Ave. of the Ams., L.L.C., 22 N.Y.3d 658, 662–663, 985 N.Y.S.2d 416, 8 N.E.3d 791 [internal quotation marks omitted];  see Outar v. City of New York, 5 N.Y.3d 731, 732, 799 N.Y.S.2d 770, 832 N.E.2d 1186;  Ruiz v. Ford, 160 A.D.3d 1001, 1003, 75 N.Y.S.3d 242;  Escobar v. Safi, 150 A.D.3d 1081, 1083, 55 N.Y.S.3d 350).

Here, the plaintiff failed to eliminate all triable issues of fact as to whether the accident was the result of an elevation-related hazard or gravity-related risk encompassed by Labor Law § 240(1) (see Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y.3d at 11, 935 N.Y.S.2d 551, 959 N.E.2d 488;  Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 605, 895 N.Y.S.2d 279, 922 N.E.2d 865;  Laliashvili v. Kadmia Tenth Ave. SPE, LLC, 221 A.D.3d 988, 991, 200 N.Y.S.3d 430).  The plaintiff failed to establish his height or the height and weight of the plywood sheet that struck him (see Laliashvili v. Kadmia Tenth Ave. SPE, LLC, 221 A.D.3d at 991, 200 N.Y.S.3d 430;  Wright v. Ellsworth Partners, LLC, 143 A.D.3d 1116, 1119, 39 N.Y.S.3d 289).  Further, the plaintiff failed to eliminate triable issues of fact as to how the accident occurred and whether, under the circumstances of this case, this was a situation where a securing device of the kind enumerated in Labor Law § 240(1) would have been necessary or even expected (see Majerski v. City of New York, 193 A.D.3d 715, 717, 146 N.Y.S.3d 641;  Carlton v. City of New York, 161 A.D.3d 930, 933, 77 N.Y.S.3d 445;  Romero v. 220 N. Steel, LLC, 148 A.D.3d 1066, 1067, 50 N.Y.S.3d 158).

Since the plaintiff failed to meet his prima facie burden, it is unnecessary to consider the adequacy of the defendants' opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

In light of the foregoing, we need not reach the parties' remaining contention.

MILLER, J.P., FORD, LOVE and MCCORMACK, JJ., concur.