Appellate Division, Second Department Affirms Labor Law Summary Judgment Win in WCM Case (NY)
The plaintiff claims that he fell from a third or fourth floor balcony while doing exterior restoration work. Specifically, he testified that he was standing on a Bakers scaffold on the balcony and was wearing a harness that was hooked to a safety cable attached to the building’s façade when the scaffold wobbled causing him to fall off the balcony and to the ground below because the hook came loose. The property owner had contracted with Phoenix Building Restorers (“Restorers”) to renovate certain of the external balconies of the buildings in this complex. The property owner also separately contracted with Phoenix Bridging (“Bridging”) to do work only on the ground floor retaining wall. Bridging subcontracted out that work to plaintiff’s employer. Plaintiff sued the property owners, Bridging and Restorers, represented by WCM and, at the completion of discovery, plaintiff moved for summary judgment on his alleged Labor Law 240(1) claim.
In opposition, WCM argued on behalf of Restorers that there were triable issues of fact as to the circumstances under which the plaintiff’s accident occurred, specifically as there was testimony with regard to whether the hook of his safety cable actually failed and whether he was acting outside the scope of his authority by working on the balcony since his employer was not hired to do work on the upper balconies, only the ground floor retaining wall and Restorers had not authorized him to work on the upper balconies.
The Hon. Wayne Saitta of Supreme Court, Kings County agreed with WCM and denied plaintiff’s motion, ruling that there were triable issues of fact. Plaintiff appealed to the Appellate Division, Second Department, and WCM partner Nicole Y. Brown recently argued the appeal remotely in one of our firm’s first appeals in the post-COVID world. In a decision issued just before the July 4th holiday weekend, the Second Department affirmed the lower court’s decision and agreed that WCM had established triable issues of fact such that the plaintiff was not entitled to summary judgment on his Labor Law 240(1) claim.
If you have any questions or comments, please contact Nicole Brown.