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The Appellate Division, First Department continues its expansive reading of Labor Law 240(1).

October 28, 2016 • Posted By Douglas R. Rosenzweig • Construction Claims

In Valente v. Lend Lease (US) Construction LMB, Inc., the Appellate Division, First Department recently affirmed the Trial Court’s granting of plaintiff’s Labor Law 240(1) summary judgment motion, holding that the defendants failed to raise an issue of fact as to whether plaintiff was the sole proximate cause of his accident.  Plaintiff claimed that he slipped and fell on grease on planks that he was using as a makeshift ramp to descend five feet from the top of a building to a scaffold.  The defendants argued that plaintiff was the sole proximate cause of his accident because he chose to use the planks instead of using a ramp that he knew was available or constructing a proper ramp from material that was readily available on the work site.

The Court held that the available evidence demonstrated that the ramp that was available was not long enough to reach the scaffold and that plaintiff did not have time to build a ramp before meeting the crane that was approaching to assist in dismantling the scaffold.  Therefore, he could not be considered the sole proximate cause of his accident. 

The decision confirms that the sole proximate cause defense, particularly in the First Department, is exceedingly difficult to prove.  The evidence has to be extremely compelling to even have the Court find a question of fact.