Pacheco v. 32-42 55th Street Realty, LLC

Summary

The Appellate Division, Second Department reversed an order denying Galo Pacheco's motion for summary judgment on liability under Labor Law § 240(1). The court held that B Green Construction Corp. was a statutory agent of the property owner and that the plaintiff established that defective scaffolding proximately caused his injuries. The court granted the plaintiff's motion for summary judgment.

Holdings

1. B Green was a statutory agent of the owner because it selected and directly contracted with R & S to perform the masonry work and had authority to stop that work for safety concerns.
2. Pacheco established prima facie entitlement to summary judgment on liability because he fell from loose and unsecured planks atop scaffolding and the defective scaffolding proximately caused his injuries; the respondents failed to raise a triable issue of fact.
3. Contributory negligence is not a defense to a Labor Law § 240(1) claim, and, after Pacheco made a prima facie showing of a statutory violation and proximate causation, any failure to use available safety devices did not defeat his motion.

Questions Presented

1. Whether B Green Construction Corp. was a statutory agent of the owner under Labor Law § 240(1) because it had the authority to supervise and control the masonry work.
2. Whether Pacheco established prima facie entitlement to summary judgment on liability under Labor Law § 240(1) by showing that he fell from defective scaffolding because appropriate safety devices were not provided.
3. Whether the respondents raised a triable issue of fact based on alleged inconsistencies in Pacheco's testimony or his alleged failure to use available safety devices.

Disposition

reversed