Second Department Affirms Summary Judgment in Westchester Labor Law Action

This blog has previously discussed New York State’s Scaffold Act: namely, Labor Law 240. In short, New York’s Scaffold Act mandates that contractors, owners, and managers of construction sites provide appropriate safety devices (often scaffolding, though the law allows for other devices) to their workers when said workers are performing construction or demolition work on a “building or structure.” The purpose of the law is to protect laborers from falls, or from being hit by objects or people that fall from above.

The Scaffold Law sounds fairly simple, and truth be told, it is not as complex or cumbersome as many other laws. That said, its limits and boundaries are not always readily apparent from the plain text of the statute. Consider Passantino v. Made Realty Corp., 2014 NYSlipOp 07136, a recent Appellate Division, Second Department decision heard on appeal from Supreme Court, Westchester County. Passantino is a good illustration of how an astute lawyer can fit the facts of his or her case within the existing law, to his or her client’s benefit. This isn’t “creative lawyering,” that pejorative phrase on par with “creative accounting.” It is good lawyering – it’s knowing the law well enough to use it to a client’s advantage even when such an advantage is not obvious or apparent given the facts.

ladder.jpgMr. Passantino was a member of a three-person crew installing fiber optic cable on the defendant’s property. Note that Labor Law 240 applies to “contractors and owners and their agents.” The instant decision does not make clear whether the defendant directly employed Mr. Passantino, but regardless, it was liable as owners of the property. As Mr. Passantino’s coworker installed wiring while perched on a ladder, Mr. Passantino secured the ladder at its bottom by holding it. The court explains the rest: “Passantino let go of the ladder in order to reach some cable, the ladder started to ‘kick out,’ and began to fall. Passantino reached out in order to stop the ladder and his coworker from falling, allegedly causing him to slip on sand and gravel in the area, and tear a tendon in his arm.”

It is not immediately apparent that this would be a case for the Scaffold Law. Labor Law 240 speaks of heights, and more generally, we associate scaffolds with the sides of tall buildings, not with ladders for installing cable. But Mr. Passantino won his lower court case by suing under the Scaffold Law, and this victory was affirmed (in part) by the Second Department. As per the court, the harm caused to Mr. Passantino was a result of “the application of the force of gravity” to the ladder, and that Mr. Passantino should have been provided with some kind of safety device. (Remember, the Scaffold Law doesn’t actually mandate scaffolding in all cases – other safety mechanisms can achieve compliance with the law.)

Note that Mr. Passantino’s victory was a partial one. In the lower court, his attorneys were able to convince the jury to return a verdict of liability under not only Labor Law 240, but additionally under Labor Law 241. Unlike the Scaffold Law, Labor Law 241 is dense, wordy, complex, and only applicable in very specific circumstances. Essentially, Mr. Passantino did not “trip and fall,” which is the essence of Labor Law 241, though clearly what he did do was close enough that a lower court felt the issue should go to a jury.

If you’ve been injured and believe the Scaffold Law may apply, speak with our New York labor law attorneys regarding your potential case.

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