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Hit Pause, Get Hit, Lose Labor Law Protection (NY)

April 23, 2021

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<p style="text-align: justify;">In <em><a href="">Palermo v. 7 West 21 LLC</a>,</em> the First Department considered the application of Labor Law 240(1) when work has paused for a break.  Plaintiff Palermo and his coworker had just pried a wood form off of a wall where concrete formwork was being done.  The wood form measured 3 by 3 feet wide, 8 by 12 feet long, and weighed approximately 175 to 200 pounds.  Plaintiff asked to take a short break to stop so that he could clear debris from his feet, and then plaintiff rested his side of the wood form on top of vertical piping which protruded about 3 feet out of the ground.  After plaintiff had released his end of the form, his coworker suddenly picked up his end of the form, causing the wood to fall off the piping and strike the plaintiff’s foot.</p>
<p style="text-align: justify;">Plaintiff moved for summary judgment under Labor Law 240(1), and the trial court denied the motion on the grounds that there was an issue of fact as to whether the accident occurred during the performance of a statutory activity with elevation-related risks requiring that the wood form be secured.  The trial court also found that there was a question of fact as to whether any safety device of the kind contemplated in Labor Law 240(1) that could have prevented this accident.  On appeal, the First Department unanimously affirmed.  Labor Law defendants should take note that the timing of job site accidents may provide grounds for denial of summary judgment if the accident takes place during a break or rest of any kind.</p>
<p style="text-align: justify;">Thanks to Shira Straus for her contribution to this post.  Please email <a href="">Georgia Coats</a> with any questions.</p>

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