In a decision dated August 3, 2023, the Hon. Nancy Quinn Koba denied plaintiff’s motion seeking summary judgment on his Labor Law §§240(1) and 241(6) claims, granted our client Yonkers Contacting Company, Inc. conditional summary judgment judgment on its claim for contractual indemnification against Allied Painting, Inc.; and granted YCC summary judgment dismissing plaintiff’s Labor Law §200 claim against it. With respect to plaintiff’s Labor Law §240(1) claim, Judge Koba concluded that, while plaintiff was performing elevation-related job duties at the time of his accident, and that the truck platform lacked guardrails, he failed to establish that he was not provided with adequate fall prevention safety devices (the safety harness and lanyard with tie-off points). Judge Koba determined that triable issues of fact exist as to whether plaintiff was provided with adequate safety devices, whether there was a violation of Labor Law §240(1), and whether the plaintiff was the sole proximate cause of his injuries for failing to tie off. In her decision, the judge referenced the testimony of a witness who testified that once plaintiff stepped onto the truck, he removed his safety harness and did not put it back on prior to the accident. There were numerous other occasions when plaintiff failed to tie off, as well.

With respect to plaintiff’s Labor Law §241(6) claim predicated on an alleged violation of Industrial Code Rule 23-5.1(j)(1) (requiring the open sides of all scaffold platforms be provided with safety railings), Judge Koba determined that the subject truck platform and wings were used as a substitute for a scaffold. Therefore, Rule 23-5.1 governed the safety requirements applicable to the truck platform. Since it is undisputed that the truck platform and wings lacked safety railings, Judge Koba ruled that plaintiff proved that Rule 23-5.1(j)(1) was violated. However, a violation only constitutes some evidence of negligence, and a jury must determine whether the “equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances.” Additionally, Judge Koba held that if it is determined that plaintiff was the sole proximate cause of his injuries, then that would serve as a complete defense to plaintiff’s Labor Law §241(6) claim.

Judge Koba granted YCC conditional summary judgment on its motion against Allied Painting for contractual indemnity. YCC established that it was free from negligence, and that any liability would solely be statutory in nature. As such, in the unlikely event that plaintiff establishes Labor Law liability at trial, YCC is entitled to full contractual indemnity from Allied Painting.

Rogerio Desouza v. Yonkers Contracting Company, Inc., Index No. 55259/2020 (Sup. Ct. Westchester Co., Aug. 3, 2023)