Commercial Division Blog

Posted: September 3, 2021 / Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Categories Commercial, Labor and Employment Law

Labor Law § 240 Imposes Absolute Liability Where a Violation of the Statute is a Proximate Cause of the Injury

On August 26, 2021, the Fourth Department issued a decision in Miller v. Rerob, LLC, 2021 NY Slip Op 04864, holding that New York Labor Law § 240 imposes absolute liability on a contractor or owner where a violation of the statute is the proximate cause of an accident, explaining:

It is well settled that the statute imposes absolute liability upon contractors or owners where a violation of the statute is a proximate cause of the accident, and that contributory negligence is not a defense to absolute liability under the statute (see Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287[2003]; Weitzel v. State of New York, 160 AD3d 1394, 1394 [4th Dept 2018]). Nevertheless, a defendant may defeat a plaintiff's motion for summary judgment by raising an issue of fact whether the plaintiff's own conduct was the sole proximate cause of the accident (see Cahill v. Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39-40 [2004]; Weitzel, 160 AD3d at 1394). Here, we conclude that plaintiff met his initial burden on his motion with respect to the section 240 (1) cause of action by submitting, among other things, affidavits from experts who opined that the corner piece should have been removed with a crane immediately after the stack of Z sheets was offloaded from the flatbed truck that was used to transport the materials to the site, and before moving any individual Z sheet, and the Rerob defendants and Cortland Pump failed to raise an issue of fact (see Hamilton v. Kushnir Realty Co., 51 AD3d864, 865 [2d Dept 2008], lv denied 15 NY3d 705 [2010]; Miglionico v. Bovis Lend Lease, Inc., 47 AD3d 561, 565 [1st Dept 2008]). In our view, the evidence submitted in opposition to plaintiff's motion established, at most, contributory negligence on the part of plaintiff (see Gallegos v. Bridge Land Vestry, LLC, 188 AD3d 566, 567 [1st Dept 2020]; Ernish v. City of New York, 2 AD3d 256, 257 [1st Dept 2003]).

The attorneys at Schlam Stone & Dolan frequently litigate employment law-related issues including issue related to the New York Labor Law.

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