Abreo v. Clyde

36 Citing cases

  1. Wilson v. Bergon Constr. Corp.

    219 A.D.3d 1380 (N.Y. App. Div. 2023)   Cited 13 times

    "[T]o prevail on a Labor Law § 240(1) cause of action, a plaintiff must establish that the statute was violated and that the violation was a proximate cause of his or her injuries" ( id. at 704, 172 N.Y.S.3d 98 [internal quotation marks omitted]; seeBlake v. Neighborhood Hous. Servs. of N.Y. City, Inc., 1 N.Y.3d 280, 287–289, 771 N.Y.S.2d 484, 803 N.E.2d 757 ). " Labor Law § 240(1) may apply where a plaintiff is injured as a result of his or her attempt to prevent a fall" from a ladder or scaffold ( Ennis v. Noble Constr. Group, LLC, 207 A.D.3d at 704, 172 N.Y.S.3d 98 ; seeLopez–Dones v. 601 W. Assoc., LLC, 98 A.D.3d 476, 479, 949 N.Y.S.2d 165 ; Lacey v. Turner Constr. Co., 275 A.D.2d 734, 735, 713 N.Y.S.2d 207 ), and the fact that a plaintiff does not actually fall is irrelevant (seeMilitello v. Landsman Dev. Corp., 133 A.D.3d 1378, 1379, 19 N.Y.S.3d 841 ; Abreo v. URS Greiner Woodward Clyde, 60 A.D.3d 878, 880, 875 N.Y.S.2d 577 ), "as long as the ‘harm directly flow[ed] from the application of the force of gravity to an object or person’ " ( Lacey v. Turner Constr. Co., 275 A.D.2d at 735, 713 N.Y.S.2d 207, quoting Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 501, 601 N.Y.S.2d 49, 618 N.E.2d 82 ; seeVislocky v. City of New York, 62 A.D.3d 785, 786, 879 N.Y.S.2d 176 ).

  2. Klimowicz v. Powell Cove Associates

    111 A.D.3d 605 (N.Y. App. Div. 2013)   Cited 79 times

    Thus, they cannot reasonably claim prejudice or surprise. Moreover, 12 NYCRR 23–5.1(c), 23–5.1(e)(1), and 23–5.3(f) set forth specific, rather than general, safety standards, and are sufficient to support a Labor Law § 241(6) cause of action ( see Abreo v. URS Greiner Woodward Clyde, 60 A.D.3d 878, 880, 875 N.Y.S.2d 577; Tomyuk v. Junefield Assoc., 57 A.D.3d 518, 521, 868 N.Y.S.2d 731; Soltes v. Brentwood Union Free School Dist., 47 A.D.3d 804, 805, 849 N.Y.S.2d 628; O'Connor v. Spencer [1997] Inv. Ltd. Partnership, 2 A.D.3d 513, 515, 769 N.Y.S.2d 276; Sopha v. Combustion Eng'g, 261 A.D.2d 911, 912, 690 N.Y.S.2d 813). The defendants third-party plaintiffs and the third-party defendant did not establish either that those Industrial Code provisions were inapplicable to the facts of this case, or that the alleged violation of those provisions was not a proximate cause of the damages alleged ( see Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d at 501–505, 601 N.Y.S.2d 49, 618 N.E.2d 82; Treu v. Cappelletti, 71 A.D.3d 994, 998, 897 N.Y.S.2d 199; Abreo v. URS Greiner Woodward Clyde, 60 A.D.3d at 880, 875 N.Y.S.2d 577). However, 12 NYCRR 23–5.1(f) does not support the cause of action alleging violations of Labor Law § 241(6) because that Industrial Code provision sets forth a general, rather than a specif

  3. Pittelko v. All-Safe, LLC

    2024 N.Y. Slip Op. 31334 (N.Y. Sup. Ct. 2024)

    When, however, the safety device intended to protect a worker working at an elevation fails to do so, courts do not focus on the distance of the fall (McGarry v CVP I, LLC, 55 A.D.3d 441, 441 [1st Dep't 2008]; Barber v Kennedy Gen. Contrs., 302 A.D.2d 718, 720 [3d Dep't 2003]; Siago v Garbade Constr. Co., 262 A.D.2d 945, 945 [4th Dep't 1999]). As such, where the worker is working on or is traversing a section 240 (1) device at an elevation differential of around 18 inches, and such a device breaks, is defective, or otherwise fails to perform its proper function, courts have generally found the existence of a significant elevation differential within the meaning of section 240 (1) (Morris v City of New York, 87 A.D.3d 918, 919 [1st Dep't 2011]; Abreo v URS Greiner Woodward Clyde, 60 A.D.3d 878, 880 [2d Dep't 2009]; Latino v Nolan &Taylor-Howe Funeral Home, 300 A.D.2d 631, 632-633 [2d Dep't 2002]; Siago, 262 A.D.2d at 945). Although the Appellate Division, Second Department does not mention the depth of the hole at issue in Balfe, plaintiff, in his reply brief on appeal, states that the hole was two feet deep (see Reply Brief, 2021 WL 10365302, *4).

  4. Isaac v. Atl. Yards B2 Owner, LLC

    65 Misc. 3d 1229 (N.Y. Sup. Ct. 2019)   Cited 1 times

    "To support a cause of action under Labor Law § 241 (6), a plaintiff must demonstrate that his injuries were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the accident" ( Rivera v. Santos , 35 AD3d 700, 702 [2d Dept 2006], citing Ross , 81 NY2d at 502 ; Ares v. State of New York , 80 NY2d 959, 960 [1992] ; Adams v. Glass Fab , 212 AD2d 972 [4th Dept 1995] ). To successfully move for summary judgment dismissing Labor Law § 241 (6) claims, defendants must demonstrate "that the Industrial Code provisions cited were inapplicable to the facts, or that the alleged violation of the same was not a proximate cause of the damages alleged" ( Abreo v. URS Greiner Woodward Clyde , 60 AD3d 878, 881 [2009], citing Ross , 81 NY2d 494 ; Payne v. 100 Motor Parkway Assoc., LLC , 45 AD3d 550 [2007] ; Rivera v. Santos , 35 AD3d 700 [2006] ). In order to successfully oppose a motion for summary judgment dismissing Labor Law § 241 (6) claims, a plaintiff is required to note an applicable provision of the Industrial Code that contains concrete specifications with which owners and contractors must comply ( Donovan v. S & L Concrete Constr. Corp., Inc. , 234 AD2d 336, 337 [1996] ; see alsoRoss , 81 NY2d at 505 ).

  5. Nadborski v. 636 Leonard LLC

    2019 N.Y. Slip Op. 32711 (N.Y. Sup. Ct. 2019)

    To successfully move for summary judgment dismissing Labor Law § 241 (6) claims, defendants must demonstrate "that the Industrial Code provisions cited were inapplicable to the facts, or that the alleged violation of the same was not a proximate cause of the damages alleged" (Abreo v URS Greiner Woodward Clyde, 60 AD3d 878, 881 [2009], citing Ross, 81 NY2d 494 [1993]; Payne v 100 Motor Parkway Assoc., LLC, 45 AD3d 550 [2007]; Rivera v Santos, 35 AD3d 700 [2006]). In order to successfully oppose a motion for summary judgment dismissing Labor Law § 241 (6) claims, a plaintiff is required to note an applicable provision of the Industrial Code that contains concrete specifications with which owners and contractors must comply (Donovan v S & L Concrete Constr. Corp., Inc., 234 AD2d 336, 337 [1996]; see also Ross, 81 NY2d 494 [1993]).

  6. Rivas-Pichardo v. 292 Fifth Ave. Holdings

    198 A.D.3d 826 (N.Y. App. Div. 2021)   Cited 4 times

    To establish liability under Labor Law § 241(6), a plaintiff must demonstrate that his or her injuries were proximately caused by a violation of an Industrial Code provision "mandating compliance with concrete specifications" ( Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d at 505, 601 N.Y.S.2d 49, 618 N.E.2d 82 ). In support of that branch of its motion which was for summary judgment dismissing the Labor Law § 241(6) cause of action, Pinnacle failed to demonstrate, prima facie, that 12 NYCRR 23–1.7(a)(1), 23–1.20(a), 23–2.5(a), and 23–3.3(e) did not apply to the facts of this case, or that the alleged violations of these provisions were not a proximate cause of the plaintiff's alleged injuries (seeParrales v. Wonder Works Constr. Corp, 55 A.D.3d 579; see generallyDebennedetto v. Chetrit, 190 A.D.3d 933, 936–937, 140 N.Y.S.3d 569 ; Abreo v. URS Greiner Woodward Clyde, 60 A.D.3d 878, 881, 875 N.Y.S.2d 577 ). Accordingly, the Supreme Court properly denied that branch of Pinnacle's cross motion which was for summary judgment dismissing the Labor Law § 241(6) cause of action insofar as it was predicated on 12 NYCRR 23–1.7(a)(1), but also should have denied that branch of the cross motion which related to 12 NYCRR 23–1.20(a), 23–2.5(a), and 23–3.3(e).

  7. Debennedetto v. Chetrit

    190 A.D.3d 933 (N.Y. App. Div. 2021)   Cited 86 times

    ffold platform shall be 18 inches," are sufficiently specific to support a Labor Law § 241(6) cause of action (seeTreu v. Cappelletti, 71 A.D.3d 994, 897 N.Y.S.2d 199 ; O'Connor v. Spencer [1997] Inv. Ltd. Partnership, 2 A.D.3d 513, 515, 769 N.Y.S.2d 276 ; see alsoSusko v. 337 Greenwich LLC, 103 A.D.3d 434, 436, 961 N.Y.S.2d 35 ; cf.Macedo v. J.D. Posillico, Inc., 68 A.D.3d 508, 891 N.Y.S.2d 46 ) and J & S failed to establish that the alleged violations of those sections were not a proximate cause of the plaintiff's injuries. Further, J & S failed to establish, prima facie, that 12 NYCRR 23–5.3(c), (d)(2)(vi), and (d)(3), which specify standards for the design and construction of metal scaffolds, or 12 NYCRR 23–5.1(j), 23–5.3(e), or 23–5.13(d), which specify when safety railings are required on scaffolds, or 12 NYCRR 23–5.1(h), which provides that "[e]very scaffold shall be erected and removed under the supervision of a designated person," are not applicable to the facts of this case (seeAbreo v. URS Greiner Woodward Clyde, 60 A.D.3d 878, 879–880, 875 N.Y.S.2d 577 ). However, J & S established its prima facie entitlement to judgment as a matter of law dismissing so much of the Labor Law § 241(6) cause of action as was predicated on 12 NYCRR 5.1(f) insofar as asserted against it.

  8. Medina-Arana v. Henry St. Prop. Holdings

    186 A.D.3d 1666 (N.Y. App. Div. 2020)   Cited 23 times

    That section provides that "[t]he footing or anchorage for every scaffold erected on or supported by the ground, grade or equivalent surface shall be sound, rigid, capable of supporting the maximum load intended to be imposed thereon without settling or deformation and shall be secure against movement in any direction." Henry Street failed to sustain its prima facie burden of demonstrating that Industrial Code provision 12 NYCRR 23–5.1(b) was either factually inapplicable to this case or was satisfied (seeMcCallister v. 200 Park, L.P., 92 A.D.3d 927, 929–930, 939 N.Y.S.2d 538 ; Abreo v. URS Greiner Woodward Clyde, 60 A.D.3d 878, 881, 875 N.Y.S.2d 577 ). Therefore, we agree with the denial of that branch of Henry Street's cross motion, regardless of the sufficiency of the opposing papers (seeWinegrad v. New York Univ.

  9. Cunha v. Crossroads II

    131 A.D.3d 440 (N.Y. App. Div. 2015)   Cited 18 times   1 Legal Analyses
    In Cunha, the plaintiff, standing between a loader and an excavator, was signaling the loader when the excavator rolled over his legs.

    This section provides that “[e]xcavating machines shall be operated only by designated persons,” and that “[n]o person other than the pitman and excavating crew shall be permitted to stand within range of the back of a power shovel or within range of the swing of the dipper bucket while the shovel is in operation.” Contrary to the defendants' contention, 12 NYCRR 23–9.5(c) sets forth a specific, rather than general, safety standard, and is sufficient to support a Labor Law § 241(6) cause of action (see Abreo v. URS Greiner Woodward Clyde, 60 A.D.3d 878, 880, 875 N.Y.S.2d 577 ; but see Gonzalez v. Perkan Concrete Corp., 110 A.D.3d at 958, 975 N.Y.S.2d 65 ; Wilke v. Communications Constr. Group, 274 A.D.2d 473, 474, 711 N.Y.S.2d 784 ). Further, the defendants presented no evidence that the loader operator was a “designated person” within the meaning of the Industrial Code because the evidence does not demonstrate that the operator was “selected and directed” by his employer to operate the loader (12 NYCRR 23–1.4 [b][17] ).

  10. Doto v. Astoria Energy II, LLC

    129 A.D.3d 660 (N.Y. App. Div. 2015)   Cited 111 times   1 Legal Analyses

    However, liability may “be imposed under the statute only where the ‘plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential’ ” ( Nicometi v. Vineyards of Fredonia, LLC, 25 N.Y.3d at 97, 7 N.Y.S.3d 263, 30 N.E.3d 154, quoting Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 603, 895 N.Y.S.2d 279, 922 N.E.2d 865; see Wicks v. Leemilt's Petroleum, Inc., 103 A.D.3d 793, 794–795, 962 N.Y.S.2d 168; Jimenez v. RC Church of Epiphany, 85 A.D.3d 974, 975, 926 N.Y.S.2d 133). Contrary to the contention of the defendants and Newtron, Labor Law § 240(1) applies to the facts of this case, even though the plaintiff fell only from the railing to the platform ( see Abreo v. URS Greiner Woodward Clyde, 60 A.D.3d 878, 875 N.Y.S.2d 577; Mann v. Meridian Ctr. Assoc., LLC, 17 A.D.3d 1143, 1144–1145, 794 N.Y.S.2d 272; see also Gatto v. Clifton Park Senior Living, LLC, 90 A.D.3d 1387, 1387, 935 N.Y.S.2d 366; De Jara v. 44–14 Newtown Rd. Apt. Corp., 307 A.D.2d 948, 950, 763 N.Y.S.2d 654). The plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability on his cause of action alleging a violation of Labor Law § 240(1) by submitting evidence demonstrating that the defendants failed to provide him with an adequate safety device, and that such failure was a proximate cause of his injuries ( see Olea v. Overlook Towers Corp., 106 A.D.3d 431, 431–432, 965 N.Y.S.2d 39; Wicks v. Leemilt's Petroleum, Inc., 103 A.D.3d at 795, 962 N.Y.S.2d 168; Susko v. 337 Greenwich LLC, 103 A.D.3d 434, 435, 961 N.Y.S.2d 35; Bin Gu v. Palm Beach Tan, Inc., 81 A.D.3d 867, 868, 917 N.Y.S.2d 661). In opposition, the defendants failed to raise a triable issue of fact as to whether the plaintiff's actions i