Court: Supreme Court, Appellate Division, Second Department, New York

Case: Wysk v. N.Y.C. School Construction Authority

Date: Sept. 27, 2011

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens Bronx; Queens accident attorney)

Comment: Plaintiff/accident-victim sues under our old friend the New York State Labor Law. This law protects workers from "gravity-related" injuries, and is known as the "Scaffold Law." It usually protects workers on construction projects working high up or on scaffolds or ladders form falls. The law can also be used to protect workers from falling objects.

This plaintiff was working at ground level, but hit by a falling bucket. But he couldn't say exactly where the bucket came from or why it fell. So this construction worker is denied summary judgment, but he'll still get his day in court to pitch his case to a jury.


In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Flug, J.), dated February 5, 2010, as denied his motion for summary judgment on the issue of liability on the causes of action to recover damages based on violations of Labor Law Secs. 240(1), 241(5), and 241(6).

ORDERED that the order is affirmed insofar as appealed from, with costs.

This action arises out of a construction accident that allegedly occurred on property owned by the defendant City of New York and operated by the defendant New York City Department of Education. The defendant New York City School Construction Authority hired nonparty Admiral Construction, LLC (hereinafter Admiral), to act as general contractor for the renovation of a school building on the property. Admiral hired nonparty subcontractor Imperium Construction, Inc. (hereinafter Imperium), to remove the old roof on the school building and install a new one.

On the date of the accident, the plaintiff, who was employed by Imperium, allegedly was working on the ground level, putting materials on and taking materials off a material hoist, when he was struck in the ankle by a bucket containing a mop head. At a hearing pursuant to General Municipal Law Sec. 50-h and at a deposition, the plaintiff testified that he was several feet away from the hoistway opening when he was struck by the bucket and that he first saw the bucket when it was about a foot away at eye level, a split second before it struck him. Although he did not see the bucket fall or know how it fell, he believed it came from the hoistway opening and had fallen from an open metal container attached to the hoist somewhere up in the shaft.

The plaintiff commenced this action to recover damages for personal injuries, alleging common‑law negligence and violations of various sections of the Labor Law. Following the completion of discovery, the plaintiff moved for summary judgment on the issue of liability on the causes of action to recover damages based on violations of Labor Law Secs. 240(1), 241(5), and 241(6). The defendants cross‑moved for summary judgment dismissing the complaint. The Supreme Court denied the motion and cross motion, and the plaintiff appeals from the denial of his motion.

The Supreme Court properly denied the plaintiff's motion because he failed to meet his prima facie burden of establishing his entitlement to judgment as a matter of law by showing that his injuries were proximately caused by the alleged violations of the Labor Law, namely, the absence or inadequacy of a safety device or other violation of the statute (see Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 268, 727 N.Y.S.2d 37, 750 N.E.2d 1085; Galvan v. Triborough Bridge & Tunnel Auth., 29 A.D.3d 517, 518, 814 N.Y.S.2d 256; Atkinson v. State of New York, 20 A.D.3d 739, 740, 798 N.Y.S.2d 230; Rosado v. Briarwoods Farm, Inc., 19 A.D.3d 396, 398_399, 796 N.Y.S.2d 394; Love v. New York State Thruway Auth., 17 A.D.3d 1000, 1001, 794 N.Y.S.2d 166; Gambino v. Massachusetts Mut. Life Ins. Co., 8 A.D.3d 337, 338, 777 N.Y.S.2d 713). Since the plaintiff failed to meet his prima facie burden, it is unnecessary to consider the adequacy of the defendants' opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

In light of our determination, it is unnecessary to address the parties' remaining contentions.