In Vasquez v. Cohen Bros. Realty Corp., plaintiff initiated an action after her husband died while performing repair work on a drop ceiling at a building the defendant managed.  The decedent was involved in replacing tiles in the drop ceiling of the loading dock.  He and his co-worker used a two-man scissor lift to reach the drop ceiling.  While replacing the tiles, the decedent saw that a fluorescent light was missing from the ceiling grid.  He noticed the light on a nearby exhaust duct and climbed onto the guardrail of the lift to reach the light.  While still on the guardrail, the decedent reinstalled the light and began to replace the ceiling tiles.  He successfully replaced one tile while still standing on the guardrail, but had difficulty with the second tile.  He eventually lost his balance and fell to the ground, fatally hitting his head.

The plaintiff moved for partial summary judgment on her Labor Law 240(1) claims, and the defendant cross-moved arguing that the decedent was a “special employee” and that the Workers’ Compensation Law barred his claims.  The court denied both motions and held that there was an issue of fact as to whether the decedent could have completed his work without leaving the lift.

In reversing the denial of the plaintiff’s motion for partial summary judgment, the First Department granted plaintiff conditional summary judgment, reasoning that the plaintiff still needed to prove that he was not the defendant’s special employee, as there was an issue of fact with respect to who controlled and directed the decedent’s work.

As for the 240(1) claims, the court held that the decedent was working from an elevated height to repair the ceiling and the defendant failed to provide him with an adequate safety device because apart from the lift, the defendant did not supply the workers with harnesses or safety lines.  The idea that the decedent’s decision to leave the lift was the sole proximate cause of his death was rejected by the court, which noted that a simple instruction to avoid an unsafe practice (standing on guardrails) is not a sufficient substitute for providing a worker with a safety device to allow him to safely complete his work.

Special thanks to Lora Gleicher for her contributions to this post.  For more information, please contact Nicole Brown at .