Pacheco v 32-42 55th Street Realty, LLC
Attorneys and Parties
Brief Summary
Construction-site elevation risk: scaffold fall claim under New York Labor Law § 240(1) [imposes upon owners and general contractors, and their agents, a nondelegable duty to provide safety devices necessary to protect workers from elevation-related risks; absolute liability for injuries proximately caused by the failure to provide appropriate safety devices].
The Supreme Court, Queens County, denied the plaintiff’s motion for summary judgment on Labor Law § 240(1) liability.
The denial of the plaintiff’s summary judgment motion on § 240(1) liability.
The Appellate Division held B Green was an agent of the owner because it contracted directly with the masonry subcontractor and had authority to stop work for safety; the plaintiff’s deposition established he fell due to loose, unsecured scaffold planks; defendants failed to raise any triable issue, and claimed inconsistencies in testimony were immaterial; contributory negligence and mere availability of safety devices are not defenses after a prima facie § 240(1) showing.
Background
In 2014, plaintiff Galo Pacheco, an R&S Construction, Corp. employee, fell from scaffolding while performing masonry work on a project owned by 32-42 55th Street Realty, LLC. The owner retained Crescent Street Construction Corporation as general contractor; Crescent retained B Green Construction Corp. to install a brick facade; B Green hired R&S to perform the masonry. Pacheco sued the owner and B Green, alleging a Labor Law § 240(1) violation after he fell from loose, unsecured planks on the scaffold.
Lower Court Decision
The Supreme Court, Queens County, denied the plaintiff’s motion for summary judgment on Labor Law § 240(1) liability, effectively finding issues of fact—including whether B Green qualified as the owner’s statutory agent and perceived inconsistencies in the plaintiff’s account—precluded summary relief.
Appellate Division Reversal
Reversed. The court held B Green was a statutory agent because it selected and contracted with R&S and had authority to halt work for safety concerns. The plaintiff’s deposition made a prima facie showing that defective, unsecured scaffold planks caused his fall, and the respondents failed to raise a triable issue. Any inconsistency in testimony did not create a credibility issue barring summary judgment, and contributory negligence or nonuse of available devices is not a defense once a § 240(1) violation proximately causes injury. The court granted plaintiff summary judgment on liability and awarded costs.
Legal Significance
Reaffirms that the right to control work, not its actual exercise, establishes contractor “agent” status under Labor Law § 240(1); defective scaffolding and unsecured planks constitute elevation-related hazards the statute is designed to prevent; contributory negligence and mere availability of safety devices do not defeat a prima facie showing of statutory violation and causation; minor testimonial inconsistencies that do not bear on the core mechanism of the accident will not create triable issues.
A contractor with authority to supervise or stop work for safety can be deemed an owner’s agent under Labor Law § 240(1), and where a worker’s scaffold fall is caused by unsecured or defective planks, summary judgment on liability is warranted absent a triable issue.