In Grygo v. 1116 Kings Highway Realty, LLC, the Second Department gave the defendants a rare win in a Labor Law § 240 suit. In this matter, the plaintiff was injured when a cart holding sheetrock toppled over, causing the cart and sheetrock to strike the plaintiff. At the time of the accident the plaintiff was removing a piece of plastic he had previously placed over the cart to protect it while he painted the worksite.

 The Supreme Court granted the defendants summary judgment dismissing the Labor Law § 240 claim and the Second Department affirmed, finding that the plaintiff’s injuries arose from a general hazard encountered at a construction site and were not from “the direct consequence of a failure to provide” an adequate safety device. The court underscored the point that the safety devices enumerated in § 240 were meant to protect “against a risk arising from a physically significant elevation differential.”

 By highlighting that the safety devices were meant to protect against physically significant elevation differentials, the implication is that Labor Law § 240 should not apply to de minimis differentials. It seems that the Second Department may have thrown defendants a bone, as several recent decisions, particularly in the First Department, have allowed plaintiffs to recover under § 240 where the height differential was minimal.

Thanks to Gabriel Darwick for his contribution to this post.

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