Keith M. Andresen

Key Points:

• New York appellate decision gives defense counsel firm ground on which to defend a standard § 240(1) case. 
• In Simpertegui v. Carlyle House Inc., 209 N.Y.S.3d (1st Dept. May 9, 2024), a “ladder-fall” case, the First Department found that the defendants raised triable issues of fact by identifying inconsistencies in plaintiff’s account of the accident and “calling into question his overall credibility and circumstances underlying his claimed injuries.” 

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In 2024 there were several important New York labor law decisions across the Appellate Divisions and even at the Court of Appeals. It is easy to ignore some of these cases given the ongoing “Fraudemic.” However, in the midst of this storm, one appellate decision has given defense counsel some firm ground on which to defend a standard § 240(1) case, particularly one involving a fall from a ladder. So, what does a cat have to do with anything? Let me explain. 

New York Labor Law § 240(1), also known as the scaffold law, provides in relevant part:

"All contractors and owners and their agents, except owners of one- and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."

Once judgment under this statute is granted, liability is absolute, and it doesn’t matter what the plaintiff was doing or if they were comparatively negligent. 

While there are some limited defenses available—such as an uncovered worker, a non-covered activity, a recalcitrant worker, sole proximate cause—these are all very fact-specific and are typically not available in a standard fall-from-a-ladder case. Unfortunately, the majority of cases involving a fall from a ladder are simply liability dead-ends, where the plaintiff testifies they climbed up the ladder to do work, it shook, and they fell. Often times the plaintiff will testify they knew the ladder was unsafe, but they “wanted to get the job done.” These facts pled bare in an affidavit are enough for a plaintiff to move for early summary judgment after joinder of issue and before any depositions or initial discovery have taken place. 

Again, defendants are hard pressed to come up with a defense. The purpose of the statute itself, which was created to protect workers by charging owners and general contractors with absolute liability, seems to fall by the wayside. Ladder cases in recent years seem to follow the same exact fact pattern. Still, the courts seem to simply adopt the circular logic without even looking at the underlying facts—the plaintiff fell because there was a violation; there was a violation because the plaintiff fell. 

Anyone who has defended a ladder case has found it extremely frustrating. The testimonies are usually the exact same: “The ladder moved.” “The ladder shifted.” “The ladder shook.” This testimony is enough to trigger liability, no matter how ridiculous or unbelievable the remainder of the plaintiff’s testimony may be or what led up to the ladder mysteriously moving. I am tempted, sometimes, to ask the plaintiff, “Did a cat move it? Were there cats on the jobsite?” Because, frankly, that would be a much more credible explanation than the ladder just moved. 

Enter Simpertegui v. Carlyle House Inc., 209 N.Y.S.3d (1st Dept. May 9, 2024). In this matter, the plaintiff alleged he fell from a ladder while performing brickwork. He claimed that the ladder “suddenly shook” while he was about seven feet off the ground (shocking) and he fell. The plaintiff moved for summary judgment pursuant to Labor Law § 240(1), which was granted by the Bronx Supreme Court. 

The defendants appealed to the First Department. In a short, but powerful decision, the Appellate Division found the defendant raised triable issues of fact to defeat the summary judgment motion and reversed the lower court’s ruling. 

First, the plaintiff provided two separate dates of accident. He cited July 28, 2017, as the accident date in a workers’ compensation form and at a hearing. Later, at his deposition, he stated his accident date was on July 31, 2017. While mixing up accident dates is usually not dispositive, video evidence shows the plaintiff working on both days. Furthermore, no accidents were reported on those days. 

Second, he claimed he personally reported his accident to his supervisor, Abraham Diaz. Mr. Diaz confirmed the plaintiff did not report an accident to him on either date. He also provided phone records to prove the plaintiff never called him to report the accident. 

Finally, the court noted the plaintiff first went to the hospital just days after the employer fired him for absenteeism. 

The defendants also argued on appeal that the plaintiff never put forth any evidence that the ladder itself was defective, either from his own recollection or witnesses. Specifically, the plaintiff testified he was not aware if his feet came off the ladder. The court did not mention these issues, and it seems they were more concerned with his overall credibility: “Defendants raised triable issues of fact sufficient to defeat the motion by identifying various inconsistencies in plaintiff’s account of the accident, thus calling into question his overall credibility and circumstances underlying his claimed injuries.” 

This decision is important because it highlights the importance of getting all specific facts surrounding the plaintiff’s accident, not just those facts focusing on the happening of the accident itself. Defendants should seek to obtain testimony from all co-workers, supervisors, or anyone else at the jobsite who can testify as to whether an accident happened or was reported at all. Even if an accident was reported, the initial complaints or accident reports, workers’ compensation filings, testimony provided by the plaintiff, and the first medical treatment should all be compared and analyzed when assessing the plaintiff’s credibility. Obviously, phone, video, and metadata also must be scrutinized to the extent they are available. 

This may be the first in a significant line of cases where the New York State courts start seriously looking at the circumstances of ladder falls, not just providing the typical rubber-stamp treatment. After all, a cat was not on the jobsite.

*Keith is Co-Chair of our New York Construction & Labor Law Practice Group and works in our New York City office. 

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_{Defense Digest, Vol. 31, No. 1, March 2025, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2025 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}