This page summarizes and comments on a published court decision. It is general information, not legal advice, and reading it does not create an attorney-client relationship. Every case depends on its own facts. Unless this page says otherwise, The Eskesen Law Firm did not represent any party in this case.
Bottom line
A worker who falls from an unsecured ladder that suddenly moves may win on liability under Labor Law 240(1), even if the fall is from only a few feet. Here, the First Department modified the trial court’s order to grant partial summary judgment on liability to a worker whose ladder was struck by a falling piece of plywood he was removing from a ceiling, holding that it did not matter whether he was on the sixth step or the second.
The case
- Court
- Appellate Division, First Department
- Decided
- October 13, 2026
- Case
- De Souza v 4720 Third Ave LLC
- Citation
- 2026 NY Slip Op 05905
- Official text
- Read the decision on the New York courts’ official reporter site
The facts
The plaintiff was removing plywood sheets from the ceiling above him while working from an eight-foot A-frame ladder. He testified that a falling piece of plywood struck the ladder and he fell, and that he was on the sixth step; a coworker said he was on the second step. The Supreme Court, Bronx County, denied his motion for partial summary judgment under Labor Law 240(1) and 241(6), and he appealed.
The holding
The First Department unanimously modified the order to grant the plaintiff partial summary judgment on the Labor Law 240(1) claim, and dismissed his 241(6) claim as academic. He showed, with proof that included an expert affidavit, “that he fell from an unsecured [eight]-foot A-frame ladder that suddenly moved” (2026 NY Slip Op 05905, *1, quoting Rodas-Garcia v NYC United LLC). Which step he was on did not matter, “because a fall from a height of two feet can constitute the type of elevation-related risk that is covered by the protections of Labor Law § 240(1)” (id.). The court rejected the sole proximate cause defense, since he followed his employer’s instruction, and held that the defendants “were not absolved of taking measures to ensure that the plywood that caused the accident was secured . . . simply because the purpose of plaintiff’s work was to remove the plywood” (id.).
What changed
Nothing new: this applies settled law, including the court’s earlier decisions in Casabianca v Port Auth. of N.Y. & N.J. (237 AD2d 112) and Diaz v Raveh Realty, LLC (182 AD3d 515).
What it means
- A short fall is not automatically outside the statute. The court said a fall from two feet “can constitute” a covered elevation-related risk.
- Even if the worker was careless, that could not be the sole proximate cause where the defendants’ violation of the statute was also a cause; the court called that “conceptually impossible,” quoting the Court of Appeals.
- Removal work is covered work. Because he won on Labor Law 240(1), the court treated his Labor Law 241(6) claim as academic, without deciding its merits.
Our view
Commentary by Frank N. Eskesen. This section is opinion.
This was one of two Labor Law 240(1) decisions from the same panel that day (see our entry on Mitchell v Pullman SST). Here, the testimony differed on which step he was on. In our experience, defendants often point to inconsistencies like this to argue that a case must go to trial. But summary judgment does not require that there be no factual dispute at all, only that there be no dispute about a material fact, that is, one that could change the outcome. Here, the factual dispute was immaterial, because the court found that under either version the worker was protected. We believe two lessons follow. 1. In a ladder case, the key questions are whether the ladder was properly secured and whether it moved, not just how high the worker was. 2. When the job is taking something down, like the plywood here, it must be controlled so that it comes down safely.
Topics
Court: First Department. Year: 2026. Statutes: Labor Law §§ 240(1), 241(6); 12 NYCRR 23-2.2(a). Result: modified.
Reviewed by Frank N. Eskesen, admitted in New York since 2000. Decided October 13, 2026. Posted October 14, 2026.
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