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Second Department Reverses Queens County Summary Judgment as and to Plaintiff Romero v. Northern Steel, LLC, NYLJ – March 24, 2017

May 1, 2017 • Posted By Joseph A. French • Construction Claims, Insurance Coverage

            Plaintiff filed suit against Northern Steel alleging various Labor Law claims.  He claimed he fell from the top of a scissor lift at a work site Northern Steel owned.  A demolition worker, plaintiff claimed a ceiling beam fell toward him.  When he stepped out of the way, he fell off the scissor lift.  Plaintiff argued the beam should have been secured, and the failure to secure it caused his fall and injuries.  The Lower Court agreed and granted summary judgment to the plaintiff.

            In reviewing the Lower Court’s decision, the Court noted that “to prevail on a motion for summary judgment in a Labor Law §240(1) “falling object” case, the plaintiff must demonstrate that at the time the object fell, it either was being hoisted or secured, or required securing for the purposes of the undertaking Fabrizi v. 1095 Ave.  Labor Law §240(1) does not automatically apply simply because an object fell and injured a worker; [a] plaintiff must show that the object fell…because of the absence or inadequacy of a safety device of the kind enumerated in the statute”.

            The Court held that the evidence submitted by the plaintiff was insufficient to establish that the beam in question fell due to the absence or inadequacy of an enumerated safety device.  Specifically, there was a question of fact as to the nature of the “beam” at issue.  The plaintiff alternately described it as a flat or narrow “metal slab supposedly made of Steel but it was mostly [cooper]”, or an iron steel “beam”.  The plaintiff’s supervisor described it as, “like old duct work, metal studs”, and a representative of Northern Steel described it as a “duct” or ductwork”.  Although the plaintiff submitted the affidavit of an expert who opined that a contractor’s lift should have been provided to hold “the beam” as it was being cut, the expert, whose opinion was rendered after reviewing the relevant deposition transcripts, failed to identify a basis for concluding that the object at issue was a “beam” or otherwise explain why a contractor’s lift was required to hold the object at issue, and thereby establish that this was “a situation where a hoisting or securing device of the kind enumerated in the statute would have been necessary or even expected”.

            Thus, these points led the Court to conclude that plaintiff had not met his “prima facie burden”.

            It is good to see that in this case at least, the Court did not issue a favorable decision on Labor Law §240(1) as the Trial Court apparently had, and chose to examine closely the pertinent facts and whether Labor Law §240(1) applied to the claim.