Unlimited Breadsticks > Labor Law § 240(1)

Third Department Affirms Denial of Plaintiff’s Summary Judgment Motion due to Question of Fact Involving Sole Proximate Cause Defense

Never bet against unlimited breadsticks.?

In a recent decision, the Appellate Division, Third Department affirmed a Supreme Court, Broome County decision that denied plaintiff’s motion for summary judgment as to his Labor Law § 240(1) cause of action.? ?

Procedural Posture & Facts:

In Burgos v. Darden Rests, Inc., et al., 2025 NY Slip Op 00009, plaintiff was injured on a construction job while demolishing a walk-in freezer at an Olive Garden restaurant.? While plaintiff was accessing the top of the freezer from the building’s roof and cutting around a sprinkler head that went into the freezer’s ceiling, the freezer roof collapsed and plaintiff fell approximately 9-10 feet to the floor, sustaining injuries.

Plaintiff commenced the subject lawsuit, alleging violations of Labor Law §§ 200, 240(1), and 241(6) and common-law negligence.? After the conclusion of discovery, plaintiff moved for partial summary judgment as to his § 240(1) cause of action.? The Supreme Court, Broome County denied plaintiff’s motion, holding:

In these circumstances, it is clear that the plaintiff was not required to stand on the walk-in freezer’s roof to demolish or disassemble it and could and should have performed the work from inside the freezer, using the freezer floor as a base.? Stated differently, the worksite was the floor of the freezer, not the top of the roof, and thus the work was not anticipated to be elevation-related.? As the task of demolishing or disassembling the freezer did not create “an elevation-related risk of the kind that the safety devices listed in section 240(1) protect against,” the plaintiff’s motion for partial-summary judgment on this claim is denied.

The lower Court’s footnote is also worth highlighting:

To the extent that it was anticipated that the plaintiff may need a ladder at times when working from the floor of the freezer, there is no dispute that he was provided with an 8-foot ladder (along with a 6 foot and 20-foot ladder, according to [defendant]).? ???

It’s also worth noting here that the defendants cross-moved for summary judgment as to plaintiff’s Labor Law §§ 200, 241(6) and common-law negligence causes of action only, and not the § 240(1) cause of action.

Plaintiff appealed the lower Court’s decision, and the Appellate Division, Third Department affirmed.? It noted that even if plaintiff had met his prima facie burden on summary judgment, the defendants successfully raised a question of fact as to whether plaintiff was the sole proximate cause of his accident, which precludes summary judgment.? The decision goes into further detail, but the question(s) of fact center on whether plaintiff ignored his supervisor’s instructions to work from the freezer floor as opposed to the ceiling and ignored instructions in a “Set-up Packet” that he was provided with, that included instructions for working on the particular project.? The Third-Department also noted that plaintiff was provided with a 6-foot, 8-foot and 20-foot step ladder, which represented “the proper safety equipment” required for plaintiff to demolish the freezer.?

Commentary:

Especially worth emphasizing here is the lower Court’s decision that found because plaintiff was expected to work on the freezer floor, but chose to work on the roof of the subject freezer instead, he was not exposed to an elevation-related risk as contemplated under Labor Law § 240(1).? Specifically the lower Court’s decision says “the work was not anticipated to be elevation-related” (emphasis added), which possibly represents a small, but significant opening to oppose § 240(1) motions in similar circumstances in the future. ????

With Labor Law § 240(1) we take the wins where we can get them.

Links:

The Appellate Division, Third Department’s decision in Burgos decision can be found here.

The Supreme Court, Broome County decision in Burgos decision can be found here.

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For additional information, contact Phil Priore and/or Michael J. Shields, Esq.

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