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Fell to the Ground from a Forklift

The plaintiff was a construction worker who worked for a framing company. The defendant failed to provide proper safety devices to either prevent a fall or protect the worker from a fall, such as a safety harness, safety line, or safety net. The plaintiff was directed to try and dislodge a wooden beam from a forklift stuck on the third story without any safety devices. The worker managed to dislodge the wooden beam, but in the process lost his balance and fell to the ground from over 3 stories above, resulting in devastating personal injuries. The court found that the defendant violated the NYS Labor law and was solely responsible for causing the accident.



Supreme Court Orange County, Index No.: 000213/14

Upon the foregoing papers the motion is determined as follows:

The plaintiff’s motion is granted as against Hidden Creek Condominium, Inc.; the cross-motion by Hidden Creek at Monroe Homeowners Association is granted; the cross-motion by Eliezer Herskowitz is granted in its entirety; and the cross-motion by Hidden Creek Condominium, Inc., is granted with respect to the plaintiff’s claims of negligence and violations of Labor Law §§200 and 241(6), but denied with respect to the plaintiff’s claim for violation of Labor Law §240(1).

The plaintiff, an employee of Madeira Framing, was injured on October 8, 2013, when he fell from the roof area of a new structure being built by owner Hidden Creek Condominium, Inc. Eliezer Herskowitz is the president of Hidden Creek Condominium, Inc. (hereinafter, “Hidden Creek”), and is alleged by the plaintiff to have been ultimately responsible for supervising the work on the site. The plaintiff also sued Hidden Creek at Monroe Homeowners Association, but no party has opposed that entity’s cross-motion for summary judgment dismissing all claims and cross-claims against it.

To impose liability on an owner or contractor pursuant to Labor Law§ 240(1), plaintiff must demonstrate that there was a violation of the statute, and that the violation was a proximate cause of his injuries (citations omi ted). Mierzejewski v City of New York, 121 AD3d 957,_ (2d Dept 2014).

Here, the plaintiff made out a prima facie case based upon his deposition testimony which established that he was not provided with a safety device to protect him from a fall, and that this was a proximate cause of the accident. See Cruz v. Cablevision Systems Corp., 120 AD3d 744 (2d Dept 2014).

Eliezer Herskowitz opposes the plaintiff’s motion and seeks summary judgment on the ground that he had no involvement in the project in an individual capacity. The Court agrees that there is no basis to hold Eliezer Herskowitz personally liable in this case.

Hidden Creek opposes the plaintiff’s motion and seeks summary judgment on the plaintiff’s claims under Labor Law§§240(1) and 241(6) on the ground that the plaintiff’s own conduct was the sole proximate cause of the accident. Hidden Creek seeks summary judgment on the plaintiff’s negligence and Labor Law §200 claims on the ground that it did not control or supervise the plaintiff’s work and had no awareness of the manner in which he carried that work out.

Liability under section 240(1) does not attach when the safety devices that plaintiffalleges were absent were’ readily available at the work site, albeinot in the immediate vicinity of the accident, and plaintiff knew he was expected to use them but for no good reason chose not to do so, causing an accident. In such cases, plaintiff’s own negligence is the sole proximate cause of his injury (citation omitted). Gallagher v New York Post, 14 NY3d 83, 88 (2010).

In this case, the plaintiff acknowledged that he had seen a safety harness under the seat of his employer’s van, but he also testified that no one on the job utilized a safety harness, that he was directed by his supervisor to go up to where a forklift was having difficulty extricating itself from a wooden beam, and that he was not instructed to utilize a harness or any other safety device.

Contrary to the defendants’ contention, the record does not support a finding that the plaintiff was a recalcitrant worker. It is undisputed that the defendants failed to furnish the plaintiff with certain safety devices, or to provide him with immediate specific instructions to use an actually available safety device or avoid using a particular unsafe device (quotation marks and citations omitted). Ortiz v 164 Atlantic Avenue, LLC, 77 AD3d 807, 809 (2 Dept 2010).

Under these circumstances, the Court finds that Hidden Creek has not demonstrated the existence of a triable issue of fact with respect to the plaintiff’s Labor· Law §240(1) claim.

To state a claim under Labor Law §241(6), the plaintiff must allege the violation of a specific Industrial Code provision. Abelleira v City of New York, 120 AD3d 1163 (2d Dept 2014).

In this case, the plaintiff’s bill of particulars cites 12 NYCRR§§23-5.1, 23-5.3, and 23-5.8. None of these provisions are applicable, however, because they all relate to scaffolds, and no scaffolds were involved in this case. See Riccio v NHT Owners, LLC, 13 Misc.3d 1209(A) (Sup Ct, Kings Co 2006), affd 51 AD3d 897 (2d Dept 2008). Therefore, Hidden Creek is entitled to summary judgment dismissing this claim.

With respect to the plaintiff’s claims that Hidden Creek was negligent and that it violated Labor Law §200, Hidden Creek, as owner and general contractor, clearly had general authority to oversee the work site. There is no evidence, though, that it exercised direct supervision or control over the plaintiff’s work or that it bore “the responsibility for the manner in which the work [was] performed.” Ortega v. Puccia, 57 AD3d 54, 62 (2d Dept 2008). Accordingly, Hidden Creek is entitled to summary judgment on these claims as well.

Dated: January 16, 2015


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