Week of August 20-26

In Berman-Rey v Gomez, the Second Department affirmed the trial court’s dismissal of plaintiff’s 240(1) claims, where plaintiff was injured by a construction fence that fell on him. The court reasoned that plaintiff failed to demonstrate how the fence was “’a hazard contemplated under that statute and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein’ (Fabrizi v 1095 Ave. of the Ams., L.L.C., 22 NY3d 658, 662, quoting Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267). [Which] requires a showing that at the time the object fell, it either was being hoisted or secured, or required securing for the purposes of the undertaking (see Fabrizi v 1095 Ave. of the Ams., L.L.C., 22 NY3d at 662-663; Outar v City of New York, 5 NY3d 731, 732; Narducci v Manhasset Bay Assoc., 96 NY2d at 268).” The court further stated that, “Labor Law § 240(1) "does not automatically apply simply because an object fell and injured a worker" (Fabrizi v 1095 Ave. of the Ams., L.L.C., 22 NY3d at 663)”.

There, defendant met its prima facie burden by establishing (i) that the fence was not an object being hoisted and (ii) the fence did not fall due to the lack of a safety device, which plaintiff failed to rebut (citing Fabrizi v 1095 Ave. of the Ams., L.L.C., 22 NY3d at 663; Narducci v Manhasset Bay Assoc., 96 NY2d at 268; Seales v Trident Structural Corp., 142 AD3d 1153, 1156; Vatavuk v Genting N.Y., LLC, 142 AD3d 989, 990).

This decision largely mirrors the First Department’s decision in James v Alpha Painting & Constr. Co., Inc, circulated in July (albeit with a different injuring instrumentality), and will support a motion for summary judgment on similar grounds for our labor law cases in the Second Department.