Appellate Division, First Department Affirms Dismissal of Plaintiff’s Claims Pursuant to Labor Law §§240(1) and 241(6) in Construction Accident Case Involving Fall From Ladder

In a decision entered February 14, 2019, the Appellate Division, First Department, unanimously affirmed the granting of summary judgment to our clients, the City of New York (“City”) and the New York City Department of Transportation (“DOT”), dismissing the plaintiff’s remaining causes of action pursuant to Labor Law §§240(1) and 241(6). In the lower court’s decision entered on August 9, 2017, Justice Lucy Billings granted the City and DOT summary judgment dismissing the plaintiff’s complaint in its entirety. Plaintiff sought damages for personal injuries allegedly sustained on May 17, 2010, when his left foot slipped off a rung then fell two rungs down before catching on the third rung down as he was descending a 20-foot extension ladder. After the close of discovery, the defendants moved for summary judgment seeking to dismiss the plaintiff’s complaint on the grounds that his fall from an allegedly “steep” ladder was not caused by the City’s and the DOT’s negligence or any violations of Labor Law §§200, 240(1) and 241(6). Plaintiff argued that the subject ladder was too steeply pitched, in violation of Labor Law §§240(1) and 241(6) premised upon Industrial Code Rule 1.21(b)(4) (which states that “a ladder shall be inclined a maximum of three inches for each foot of rise”). In granting the motion of the City and DOT, Justice Billings found that plaintiff’s argument “defie[d] the plain language of the regulation, physics, math, common sense” in that both his counsel and expert misread the regulatory language as being a minimum requirement, when it was a maximum requirement for the incline or pitch of the ladder. Justice Billings then confirmed that plaintiff’s expert failed to cite to any industry standards delineating the correct pitch of a ladder. The plaintiff then appealed to the First Department on the causes of action pursuant to Labor Law §§240(1) and 241(6) only.  On appeal, the First Department held that there was “no viable Labor Law §240(1) claim where, as here, ‘plaintiff simply lost his footing while [descending] a properly secured, non-defective extension ladder that did not malfunction'” (citation omitted).  As to the Labor Law §241(6) claim, the First Department determined that because “the ladder was placed in compliance with 12 NYCRR 23-1.21(b)(4)(i), dismissal of the Labor Law §241(6) claim was warranted”.

Joseph Mitchell v. The City of N.Y. et al., 92 N.Y.S.3d 652 (1st Dep’t 2019)

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This post was written by Sander Rothchild