In Moracho v. Open Door Family Med. Ctr., Inc., 2010 NY Slip Op 05657 (1 Dept. 2010), plaintiff, an asbestos worker, was injured when he fell through an open skylight on the roof of a building owned by Open Door, which was being renovated by general contractor Scully. All parties moved for summary judgment, and plaintiff’s motion was ultimately granted as to liability on his Labor Law § 240(1) claim against defendants Open Door and Scully. The First Department reversed the trial court’s decision, holding that summary judgment should not have been granted because the record consisted of conflicting testimony as to whether a safety vest was available to plaintiff, whether he was aware of the expectation that he would “tie off” the vest, and, if so, whether “he chose for no good reason not to do so.” Thus, the First Department reaffirmed that the broad protections offered under Labor Law § 240(1) may still be restricted due to conflicting testimonial evidence as to the existence of safety equipment and the plaintiff’s failure to use such equipment.

Meanwhile, the court also upheld the denial of Scully’s motion for summary judgment, noting that although the asbestos contractor performed the relevant work, Scully, as general contractor, was still contractually responsible for preventing accidents and taking reasonable precautions to prevent injuries. What’s more, the record established that Scully had access to the site and involvement with the project. Thus, despite a lack of control over the subcontractor, the court reinforced the principle that the general contractor must still provide safety devices to prevent injuries.

Special thanks to Lora Gleicher for her contributions to this post. If you have any questions, please contact Bob Cosgrove at .

http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05657.htm