Plaintiff’s Negligence Can’t “Makeup” Defense Under NY Labor Law § 240

Under New York Labor Law § 240(1), a worker must be provided with adequate protection while working at a “physically significant elevation.”   In Cuentas v. Sephora U.S.A., Inc., the plaintiff testified that the ladder he was using and eventually fell from was both unsteady and too short to enable him to reach the window he was cleaning. Plaintiff freely admitted that prior to his fall from the ladder, he was using the top step of the ladder, which the defendant argued was an inappropriate use of the ladder.  Thus, the defendant contended that the plaintiff’s own negligence was the cause of his fall.

 The trial court granted the plaintiff’s motion for summary judgment, and the Appellate Division, First Department, affirmed.   The court held that the plaintiff established he was not provided with an adequate safety device, and, therefore, his own negligence was of no consequence. The Court noted a different outcome could have come to pass if there was evidence in the record that an adequate ladder was provided to the plaintiff and his accident occurred solely because of his loss of balance while using a properly secured ladder.

Thanks to Joseph P. Fusco for his contribution.

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