In a decision dated July 24, 2024, Hon. Joy F. Campanelli denied plaintiff’s motion seeking summary judgment on his Labor Law §240(1) cause of action against our client, New York City Transit Authority. At the time of the accident, plaintiff was engaged in leveling and smoothing wet concrete on the pedestrian platform being poured for the subway. At the same time, laborers were involved in cleaning excess concrete from the concrete pipes and hoses, known as “shooting the rabbit.” The laborers used air pressure and a rubber ball to clear the concrete lines. The plaintiff was not directly involved in the pipe cleaning process. He claims that to perform his work he stood on a wood scaffold that was approximately 700 feet in length and four to five feet above the track. Plaintiff claims that he was struck by sprayed concrete when the rubber ball got stuck and then exploded out of the pipe, spraying concrete and causing the hose to fish tail. He claims this caused him to fall off the scaffold and onto the tracks. In opposition to plaintiff’s motion, we argued that the four-foot tall “scaffold ” was actually a concrete form and not a scaffold or a surface plaintiff was expected to stand on. We argued that plaintiff should have been standing on a different platform, which was only 18 inches tall, and that this was the appropriate safety device for him to use. We also argued that, due to the nature of the work, a safety railing on the 18-inch-tall platform would have interfered with the work and a safety harness and lanyard would not have been appropriate given that the maximum height at issue was only four feet. During oral argument, Judge Campanelli asked the plaintiff how he could have stood on the “teeny tiny ledge” created by the concrete form, pushed a “bull float” (which the Judge pointed out was operated with an 18-foot long poll) and not fallen off the “teeny tiny ledge.” She said “teeny tiny platform” at least five times, and really seemed to take exception with plaintiff’s claim. The Court ultimately denied the plaintiff’s motion on his Labor Law §240(1) claim finding questions of fact as to whether the Labor Law was violated.

Anibal Barros et al. v. New York City Transit Authority et al., Index No. 522934/2018 (Sup. Ct. Kings Co., July 24, 2024)