In a decision dated April 27, 2022, the Appellate Division, Second Department reversed the Order of the Supreme Court, Queens County and denied plaintiff’s motion for summary judgment on his Labor Law §240(1) cause of action against our clients, City of New York, New York City Department of Transportation, New York City School Construction Authority and the Comptroller of the City of New York. The plaintiff, a roofer employed by non-party, Kel-Tech Construction, allegedly fell from an extension ladder at a public high school while renovating a bulkhead on the roof. The plaintiff moved for summary judgment on liability pursuant to Labor Law §240(1). On appeal, the Second Department determined that the plaintiff established prima facie liability under Labor Law §240(1) by submitting evidence demonstrating that he was provided with an extension ladder that was secured only on the right side and, as he began to descend the ladder from the roof of the bulkhead to the roof of the school, the ladder shifted to the right and backwards, causing him to fall approximately 12 to 13 feet onto the roof of the school. In opposition, the defendants raised a triable issue of fact regarding whether the ladder shifted to the right and backwards, as the plaintiff testified, or whether the plaintiff’s own actions were the sole proximate cause of the accident. The defendants submitted an affidavit from the plaintiff’s supervisor, who averred that the plaintiff had told him, just after the accident occurred while he was still on the roof, that he had lost his balance as he descended the ladder and jumped off the ladder. In reaching its decision to reverse the lower court and deny summary judgment to the plaintiff, the Second Department found that different versions of the accident given by the plaintiff created triable issues of fact that required a denial of the motion, including a triable issue of fact as to the plaintiff’s credibility.
Andrezj Jurski v. City of New York et al., 204 A.D.3d 983, 165 N.Y.S.3d 371 (2d Dep’t 2022)