Bustamante v BSD 370 Lexington, L.L.C.
Attorneys and Parties
Brief Summary
Construction/labor law—elevation-related safety protections under New York Labor Law § 240(1) [imposes a nondelegable duty and absolute liability upon owners and general contractors to provide safety devices necessary to protect workers from elevated work site risks] and Labor Law § 241(6) [imposes on owners and contractors a nondelegable duty to provide reasonable and adequate protection and safety in construction areas via specific Industrial Code standards], including 12 NYCRR 23-5.18(b) [requires safety railings on manually propelled scaffolds].
The Supreme Court, Kings County, denied plaintiff’s motion for summary judgment on liability under Labor Law § 240(1) and on Labor Law § 241(6) predicated on 12 NYCRR 23-5.1(b), 23-5.1(c)(2), 23-5.18(b), and 23-1.7(e)(2).
The Appellate Division modified, granting summary judgment to the plaintiff on Labor Law § 240(1) liability and on § 241(6) liability predicated on 12 NYCRR 23-5.18(b), while affirming denial as to 12 NYCRR 23-5.1(b), 23-5.1(c)(2), and 23-1.7(e)(2).
Plaintiff’s deposition established the scaffold lacked safety railings and he was provided no fall-protection devices, demonstrating a statutory violation proximately causing his injuries; defendants failed to raise a triable issue. Plaintiff also made a prima facie showing under 12 NYCRR 23-5.18(b) that the manually propelled scaffold lacked required railings, but did not establish the applicability of 12 NYCRR 23-5.1(b), 23-5.1(c)(2), or 23-1.7(e)(2).
Background
BSD 370 Lexington, L.L.C. hired Gateway Builders Corp., plaintiff’s employer, to perform renovation work at a Lexington Avenue building. While standing on the platform of a Baker (manually propelled) scaffold to perform assigned work, plaintiff attempted to move the scaffold; it toppled and he fell approximately five to six feet to the floor. The scaffold had no safety railings, and plaintiff was not provided any fall-protection devices. He sued for personal injuries under Labor Law § 240(1) [imposes a nondelegable duty and absolute liability upon owners and general contractors to provide safety devices necessary to protect workers from elevated work site risks] and § 241(6) [imposes on owners and contractors a nondelegable duty to provide reasonable and adequate protection and safety in construction areas via specific Industrial Code standards], predicated in part on 12 NYCRR 23-5.18(b) [requires safety railings on manually propelled scaffolds], among other Industrial Code provisions, and moved for summary judgment on liability.
Lower Court Decision
By order dated May 9, 2024, the Supreme Court, Kings County (Caroline Piela Cohen, J.), denied plaintiff’s motion for summary judgment on liability under Labor Law § 240(1) and under § 241(6) predicated on 12 NYCRR 23-5.1(b) [general scaffold requirements], 23-5.1(c)(2) [scaffold platform/planking requirements], 23-5.18(b) [safety railings on manually propelled scaffolds], and 23-1.7(e)(2) [tripping hazards in working areas].
Appellate Division Reversal
The Appellate Division modified the order, granting summary judgment to plaintiff on liability under Labor Law § 240(1) and on § 241(6) predicated on 12 NYCRR 23-5.18(b), because plaintiff’s testimony showed the scaffold lacked safety railings and he had no protective devices, and defendants failed to raise a triable issue. The court affirmed the denial of summary judgment on § 241(6) claims predicated on 12 NYCRR 23-5.1(b), 23-5.1(c)(2), and 23-1.7(e)(2), as plaintiff did not establish those provisions’ applicability. Costs were awarded to the plaintiff.
Legal Significance
Reaffirms that when a worker falls from a scaffold lacking required safety railings or other protective devices, liability under Labor Law § 240(1) is established as a matter of law and comparative negligence is not a defense. Also clarifies that a § 241(6) claim succeeds on summary judgment when a specific Industrial Code provision like 12 NYCRR 23-5.18(b) is shown to apply and be violated, but fails absent a prima facie showing that other cited provisions govern the facts.
A fall from a Baker/manual scaffold without guardrails or fall protection warrants summary judgment for the worker under Labor Law § 240(1) and § 241(6) where 12 NYCRR 23-5.18(b) applies; other Industrial Code claims require a clear prima facie showing of applicability.