In a decision dated July 11, 2019, the Honorable Kevin J. Kerrigan, denied plaintiff’s motion for partial summary judgment based on his Labor Law §240(1) claim against our clients, the City of New York, New York City School Construction Authority, New York City Department of Education and Leon D. DeMatteis Construction Corporation. Plaintiff, a construction worker employed by non-party Kelly Masonry Corp., allegedly sustained injuries as a result of falling from a 10-foot straight ladder leaning against a scaffold at I.S. 311 located at 98-11 44th Avenue in Queens, New York. The subject building is a public school owned by the City. The NYCSCA hired defendant DeMatteis as the general contractor and DeMatteis hired plaintiff’s employer, Kelly Masonry, to perform masonry work. The Court held that plaintiff established prima facie entitlement to summary judgment on the issue of liability with respect to his cause of action pursuant to Labor Law §240(1) by proffering evidence that he fell from an unsecured ladder which shifted and fell. However, the Court found that the defendants met their burden in opposing plaintiff’s motion by producing evidence that raised an issue of fact as to whether plaintiff fell as a result of the shifting of an unsecured ladder or whether he simply slipped from the ladder which was secured. The defendants’ submitted affidavits from Kelly Masonry’s labor foreman and supervisor averring that immediately after the accident they observed the ladder tied off to a scaffold with rope and that plaintiff told them he lost his footing and fell. This, according to the Court, raised triable issues of fact regarding plaintiff’s credibility and whether he fell as a result of an unsecured ladder that shifted and fell down or whether he fell as a result of losing his balance or slipping from a secured ladder, which would not implicate Labor Law §240(1) liability.

Leszek Drapala v. The City of New York et al., Index No. 701122/2017 (Queens Co. Sup. Ct., July 7, 2019)