Nusbaum v 1455 Washington Avenue LLC
Attorneys and Parties
Brief Summary
Construction/jobsite safety under New York Labor Law § 240 (1) [requires owners and contractors to provide adequate elevation-related safety devices (e.g., ladders, scaffolds), imposes a nondelegable duty, and absolute liability for injuries proximately caused by the failure to provide appropriate safety devices].
Denied plaintiff’s motion for partial summary judgment on § 240 (1) liability, finding issues of fact as to whether plaintiff was the sole proximate cause.
The denial of plaintiff’s motion for partial summary judgment on Labor Law § 240 (1) liability.
Unrefuted evidence showed the ladder moved and fell for no apparent reason while plaintiff was performing elevated work, triggering the presumption that the device failed to provide proper protection. Defendants did not raise a triable issue that there was no statutory violation or that plaintiff’s conduct was the sole proximate cause; their arguments about straddling/overreaching address comparative negligence, which is not a defense to § 240 (1).
Background
In December 2020, plaintiff, an AJ Sign Co. employee, was taping and touching up paint about 8–10 feet high on the exterior of a 7-Eleven in Albany as part of a sign installation. The equipment provided was a two-sided extendable stepladder and painting supplies. After his coworker left to get more paint, plaintiff, positioned near the top and straddling the ladder, reached to the right when the ladder wobbled and fell away from the wall, causing him to fall to the sidewalk. The fall was unwitnessed. Plaintiff sued 7-Eleven, Inc. (tenant) and 1455 Washington Avenue LLC (owner) under Labor Law §§ 200, 240 (1), 241 (6), and negligence. 7-Eleven had engaged LSI Graphic Solution, which sent a purchase order to MC Group/Icon (Stratus), which contracted with AJ Sign. Defendants asserted cross-claims against Stratus; Stratus impleaded AJ Sign for contractual indemnification. Plaintiff moved for partial summary judgment on § 240 (1) liability.
Lower Court Decision
Supreme Court, Saratoga County (Kupferman, J.) denied plaintiff’s motion for partial summary judgment, citing issues of fact regarding whether plaintiff was the sole proximate cause due to ladder misuse (straddling, overreaching, standing above height limits).
Appellate Division Reversal
The Third Department modified the order by reversing the denial and granting plaintiff partial summary judgment on Labor Law § 240 (1) liability. The court held the unexplained ladder fall established the presumption that the ladder did not provide proper protection; defendants’ evidence that the ladder was not defective and that plaintiff straddled/overreached did not create a triable issue of no statutory violation or sole proximate cause. The court emphasized that plaintiff had only the ladder available and no coworker to secure it, and any comparative negligence does not bar recovery under § 240 (1). Clark, J.P., dissented (McShan, J., concurring), arguing Blake governs, defendants’ expert created triable issues about proper use (including A-frame versus extension configuration and height limits), and a jury could find plaintiff’s misuse the sole proximate cause.
Legal Significance
Reaffirms within the Third Department that an unexplained ladder movement/fall while being used for elevated work invokes a presumption of statutory violation, shifting the burden to defendants to show no violation and sole proximate cause. Confirms that evidence of overreaching or working above stepladder height limits generally goes to comparative negligence, not a complete defense, where only an inadequate device was provided and it failed to perform its function. Highlights an intra-panel split over how Blake’s framework applies at summary judgment when experts dispute adequacy versus misuse.
When a worker falls after a ladder shifts or topples for no apparent reason during elevated work, summary judgment for the worker under Labor Law § 240 (1) is appropriate absent proof that adequate devices were provided and the worker’s misuse was the sole proximate cause; comparative negligence does not defeat liability.