NY Court of Appeals Grants Summary Judgment on Scaffold Law Claim to Worker Unaware Safety Devices were Available

In June 2004, Plaintiff Gallagher was performing ironwork in a building owned by defendant NYP Holdings, Inc. ("NYP"). While Plaintiff was using a two-handled powered saw, the blade jammed, and Plaintiff was thrust forward and fell through an opening onto a temporary floor, sustaining injuries. Thereafter, Plaintiff and his wife commenced an action against NYP, alleging that NYP violated, inter alia, Labor Law §  240(1), commonly referred to as the "Scaffold Law."

The Scaffold Law requires all contractors and owners of buildings to furnish appropriate safety devices to workers at construction sites. See Labor Law § 240(1). Plaintiff argued that NYP failed to provide any safety devices to prevent his fall at the Defendant's property. Plaintiffs moved for partial summary judgment on their Scaffold Law claim, based on an affidavit of another ironworker (who worked with Plaintiff) stating that "there were no safety lines, lifelines or stanchions in the work area, and [ironworkers] were not provided with safety belts, harnesses or yo-yos in order to tie off."  In addition, Plaintiffs submitted an affidavit of the foreman at the construction site, confirming that Gallagher was not provided with a safety harness and that, at the time of the accident, there were no safety cables in the vicinity of the accident.

NYP cross-moved for summary judgment, relying largely on testimony of an assistant project manager that safety devices were available at the work site and that a "standing order" was issued to the ironworkers that they should use a harness. 

The Supreme Court denied Plaintiffs' motion for summary judgment, on the basis that the testimony presented by Defendant raised a question of fact as to whether safety devices were provided to Plaintiff. The Appellate Division concurred with the Supreme Court, but granted Plaintiffs leave to appeal.

The Court of Appeals granted Plaintiffs' motion for summary judgment as to liability on their Scaffold Law claim. The Court determined that Plaintiff made a prima facie showing that NYP failed to provide the appropriate safety devices to Gallagher, in violation of the Scaffold Law. 

The Court easily distinguished the cases relied on by NYP in support of its position (Robinson v East Med. Ctr., LP, 6 NY3d 550, 553, 847 N.E.2d 1162, 814 N.Y.S.2d 589 [2006], and Montgomery v. Fed. Express Corp., 4 N.Y.3d 805 (N.Y. 2005)), stating:

liability under § 240(1) does not attach when the safety devices that plaintiff alleges were absent were readily available at the work site, albeit not 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.

In Gallagher's case, the Court found no evidence in the record demonstrating that Gallagher knew where to fund safety devices or that he was ever told to use such devices. Accordingly, the Court held that there was "no question of fact that [Plaintiff] knew of the availability of safety devices and unreasonably chose not to use them," and granted Plaintiff's motion for summary judgment.

For more information on the above article, or New York's Scaffold Law, please feel free to contact Chalos & Co, P.C. – International Law Firm at:

View a copy of the Gallagher case

Chalos & Co, P.C.
International Law Firm

© 2016 Chalos & Co, P.C. Site by Webline Designs