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A Coworker Is Not A "Safety Device" Contemplated By NY Law (NY)

September 2, 2021

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<p style="text-align: justify;"><em><a href="">Noel Castillo v. TRM Contracting 626, LLC</a></em>, No. 23185/2019 (Bx. Cnty. Sup. Ct. Aug. 18, 2021) is a personal injury action, wherein plaintiff allegedly sustained damages at a construction site.  The instant decision resolved plaintiff’s summary judgment motion on his Labor Law § 240(1) claim.</p>
<p style="text-align: justify;">On the day of plaintiff’s accident, he was tasked with taping plastic over windows in preparation of painting.  To complete his task, he used an A-frame ladder.  Plaintiff testified at his deposition that the ladder was old, very unstable, and shook a lot. He also testified that the other ladders at the construction site were being used––and there were no other ladders or scaffolds or any other safety devices available to him.  He claimed coworkers were also unavailable to hold the ladder.  Ultimately, plaintiff injured himself when he fell from the ladder––claiming a violation of Labor Law § 240(1).  Defendants opposed the motion, arguing, (1) it was premature, since large amounts of discovery remained outstanding; (2) plaintiff failed to satisfy his prima facie entitlement to summary judgment, since he did not establish certain defendants were the premises owner/construction manager; and (3) triable issues of fact existed, namely, whether plaintiff was the sole proximate cause of his injury.</p>
<p style="text-align: justify;">Ultimately, the Court granted plaintiff’s summary judgment motion.  First, the Court determined plaintiff’s motion was not premature because defendants had ample opportunity to question plaintiff at his deposition (and to submit an affidavit to rebut plaintiff’s assertions, which they did).  Even though third-party defendants were not deposed, the court determined it made no difference, since the third-party defendants did not oppose the motion.  Second, it is well established that contractors and owners have a statutory duty to provide adequate safety devices for their workers.  The failure to provide a safety device is a per se violation of §240(1), for which an owner/contractor is strictly liable.  The burden of providing a safety device is squarely on contractors/owners and their agents.  Here, defendants failed to rebut plaintiff’s alleged safety violations, and their pleadings did not deny they were the premises’ owner/construction manager.  Third, defendants failed to raise issues of fact that plaintiff was the sole proximate cause of the accident.  Even though plaintiff may have failed to ask his coworkers to hold the ladder while he worked, that did not constitute the sole proximate cause of the accident.  A coworker “is not a safety device contemplated by the statute.”  <em>Noor v. City of New York</em>, 130 A.D.3d 536 (1st Dep’t 2015).</p>
<p style="text-align: justify;">From a defense perspective – the main takeaways from <em>Castillo</em> are three-fold: (1) a plaintiff’s summary judgment motion may not be deemed premature if a third-party defendant has not been deposed and that party has not opposed the motion; (2) admissions in the pleadings remain critically important throughout the course of any litigation; and (3) a person does not constitute a “safety device,” within the meaning of Labor Law § 240(1).</p>
<p style="text-align: justify;">Thank you to John Amato for his contribution to this post.  Please email <a href="">Colleen Hayes</a> with any questions.</p>

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