If wood falls in a building and no one witnesses it, can there be Labor Law liability? Construction injury claims against owner and lessee dismissed on lack of evidence

Ortiz-Leon v. Weatex, LLC, 300 Penn LLC, & Oster Framers, Inc., Index No. 508088/2018 (Sup. Ct. Kings Cty. October 3, 2022)

In a case that was almost metaphysical in its implausibility, the Court granted defendants' motion for summary judgment dismissing all claims against them.

Plaintiff sued the owner and partial lessee of a four-story building in Brooklyn, New York alleging that, while working on the premises, he was struck by a piece of falling wood. Curiously, he contended that he was struck by a piece of wood that he could not describe, and that he had been working for an entity which neither of the moving defendants hired, on the non-existent fifth floor of the four-story building. Nevertheless, Plaintiff asserted claims under theories of negligence and violation of New York Labor Law sections 200, 240(1) and/or 241(6).

Defendants showed that the plaintiff could not establish what the object that struck him was, where it came from, or how it came to strike him. He could not establish that the object that allegedly struck him was being hoisted or secured, nor that it required securing. Plaintiff did not see the piece of wood before it struck him and did not know where it had been located nor how it was secured before the accident. Plaintiff had testified there was no wood stacked or leaning against the wall, nor stored on or secured to the ceiling, in the room where the incident occurred prior to the incident. He did not know what purpose the wood that struck him served nor whether it had been installed in its final position prior to the incident. He did not know what caused it to fall nor what distance it allegedly fell. Plaintiff was unable to prove that his work on the date of the accident was supervised or controlled by the defendants, neither of whom had any knowledge whatsoever of plaintiff's company having allegedly been hired to work at the jobsite. Plaintiff had admitted that the only people who directed and supervised his work were his boss and foreman from that company, which also provided plaintiff with his tools and materials. Plaintiff testified the room he was working in was clear of debris and well lit, and he failed to establish that any wood fell as the result of a defective condition, or that the defendants had any notice of the alleged dangerous condition, as plaintiff admitted there were no prior issues with falling pieces of wood at the jobsite.

Defendants also demonstrated that there had been no violation of an Industrial Code provision supporting a Labor Law 241(6) claim. Plaintiff's Bill of Particulars suggested an infraction of Industrial Code section 23-1.7(a), which pertains to Overhead Hazards. But defendants showed that the section could not apply to the area where plaintiff was working. Plaintiff had testified that he was working on the top floor of the building with a ceiling above him. No one was working in the same room as him, nor above him. There was nothing stored on or secured to the ceiling above him. He testified he was not aware of any issue with falling objects at this jobsite, let alone this room.

The Court held that defendants met their prima facie burden and plaintiff failed to generate a question of fact as to Labor Law 240(1) liability, which was the only part of the motion he had opposed.

AGF&J associate James Brown briefed and argued the motion on behalf of the defendant owner and defendant lessee.


James M. Brown

Practice Areas

Premises Liability