The Appellate Division, First Department held in the case McCrea v Arnlie Realty Co. LLC that an elevator under repair can be a "falling object" within the meaning of New York Labor Law 240(1). The Court upheld Summary Judgment to the inured plaintiff under Labor Law 240(1) stating:
"The evidence here establishes that at the time of the accident, McCrea was engaged in "repair" work because the elevator's safety shoes were not operating properly, and the condition was an isolated event, unrelated to normal wear and tear (see Dos Santos v Consolidated Edison [*2]of N.Y., Inc., 104 AD3d 606, 607 [1st Dept 2013]; Pieri v B & B Welch Assoc., 74 AD3d 1727, 1728-1729 [4th Dept 2010]). In addition, the elevator was a "falling object" within the meaning of the Labor Law, even though it was not actually being hoisted or secured at the time of the accident, because it required securing for the purpose of McCrea's repair work (see Matthews v 400 Fifth Realty LLC, 111 AD3d 405, 406 [1st Dept 2013])."
The Court continues and explained its reasoning:
"As plaintiff was engaged in activity protected by Labor Law § 240(1) at the time of the incident, Arnlie, as owner of the building, is subject to absolute liability for injuries which resulted from its failure to provide plaintiff with proper safety devices (Cherry v Time Warner, Inc., 66 AD3d at 236), without regard to the comparative fault of plaintiff (Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 ). Where the worker is the sole proximate cause of the injury, however, the premises owner will not be liable (Robinson v East Med. Ctr., LP, 6 NY3d 550, 554 ). “[T]o raise a triable issue of fact as to whether a plaintiff was the sole proximate cause of an accident, the defendant must produce evidence that adequate safety devices were available, that the plaintiff knew that they were available and was expected to use them, and that the plaintiff unreasonably chose not to do so, causing the injury sustained” (Quinones v Olmstead Props., Inc., 133 AD3d 87, 89 [1st Dept 2015], quoting Nacewicz v Roman Catholic Church of the Holy Cross, 105 AD3d 402, 402–403 [1st Dept 2013]).
Here, there is no indication that plaintiff refused or misused available safety equipment. The record is devoid of evidence that plaintiff was aware of the "kill switch" located in the building superintendent's office, and it is uncontroverted that the superintendent failed to alert him to the location of the switch or remain on the premises while the repair was ongoing, as required by the service contract (cf. Quinones v Olmstead Props., Inc., 133 AD3d at 89 [triable issue of fact raised as to whether the plaintiff's conduct was sole proximate cause of accident where the "plaintiff was supplied with four safety devices and chose not to use any of them"]). The comparative fault of plaintiff, if any, in proceeding with the repair after triggering the dual relay switches, which were the only safety devices of which he was aware, does not relieve Arnlie of its absolute liability under the statute. Thus, the court properly granted summary judgment to plaintiffs on the Labor Law § 240(1) claim."
While grounds for compensation under New York Labor Law 240(1) may seem obvious to injured workers, construction companies and contractors often disagree and are willing to fight claims in court. Property owners and construction companies can have vast resources that they are willing to exhaust in order to avoid paying injured workers the compensation they may deserve. As a result, it is important that construction workers who have suffered an on-site injury retain an attorney with experience handling law suits relating to Labor Law 240(1) .