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
An expert’s opinion that disregards consistent evidence that the injured person fell and was hurt, or does not explain how the expert reached it, may not be enough to require a trial. Here, the First Department affirmed partial summary judgment on liability under Labor Law 240(1) and 241(6) for a worker who fell 11 to 12 feet from a plank on a scaffold that moved, rejecting the defendants’ biomechanical expert’s opinion as speculative.
The case
- Court
- Appellate Division, First Department
- Decided
- October 15, 2026
- Case
- Latazela v Compass Six Owner LLC
- Citation
- 2026 NY Slip Op 06009
- Official text
- Read the decision on the New York courts’ official reporter site
The facts
As the court described the evidence, the plaintiff was laying CMU (concrete masonry) blocks in the upper area of a wall, working from a plank set on top of a six-foot-high scaffold platform, when the scaffold moved and he fell about 11 to 12 feet to the concrete floor below. He testified that there were no designated anchor points to which he could tie off his harness. The Supreme Court, Bronx County, granted him partial summary judgment on his Labor Law 240(1) and 241(6) claims, and the defendants appealed.
The holding
The First Department unanimously affirmed. A statement in the EMS (ambulance) report, even assuming it was admissible, “does not materially conflict with plaintiff’s deposition testimony that he was injured in a fall from the scaffold that moved as he worked atop it” (2026 NY Slip Op 06009, *1). On the defense expert, the court held: “Nor is the opinion of defendants’ biomechanical expert probative, since it is speculative insofar as it disregards the competent, consistent evidence in the record that plaintiff fell from a height and was injured” (id.). The expert also “did not describe the methodology he used to determine the forces generated by the accident, nor did he identify the biomechanical engineering principle he relied upon” (id.). The sole proximate cause defense failed as well (id.).
What changed
Nothing new: this applies settled law, including the court’s earlier decisions in Vitucci v Durst Pyramid LLC (205 AD3d 441) and Munoz v Rock Group NY Corp. (200 AD3d 486).
What it means
- Scaffolds are among the devices Labor Law 240(1) covers. The court held that the height of the fall and “the lack of proper anchor points or guardrails on the scaffold” implicated the Labor Law’s protections.
- Here, a statement in the ambulance report did not create a question of fact, because it did not materially conflict with the worker’s account.
- An opinion does not raise a question of fact just because an expert gives it; it must account for the record and explain its basis.
- This decision decides liability, not damages.
Our view
Commentary by Frank N. Eskesen. This section is opinion.
This decision came one day after the Second Department’s decision in Bonilla-Acosta v Max Servs. Corp., the first entry under our biomechanical engineers topic. There, in a car accident case, a biomechanical engineer had not shown he was qualified to give a medical opinion on causation. Here, in a construction case, a biomechanical expert’s opinion that a fall of 11 to 12 feet onto concrete was not consistent with the claimed injuries was found speculative and unexplained. Two courts, two days, and the same kind of opinion fell short. In school, a teacher may not give credit for an answer unless the student shows the work. With this, it seems that courts rightfully ask something similar of experts. The decision does not say what the ambulance report said, so we reviewed the defendants’ opposition papers. They quoted the report as recording that the worker said he “was in the process of climbing off the scaffold and fell approximately 12 feet to the ground,” and argued that, contrary to his testimony, he did not fall while working on top of the scaffold. We cannot say for certain why the court found no material conflict, but we believe the answer may be that under either version, he fell from a scaffold without proper anchor points or guardrails, and the court held that the height of the fall and the lack of proper anchor points or guardrails implicated the Labor Law’s protections. The First Department applied the same idea two days earlier in De Souza v 4720 Third Ave LLC (see our entry): a factual dispute that would not change the outcome is not a material one. Two lessons follow. 1. After an accident, tell the ambulance crew and your doctors accurately how you were hurt, including what caused it; what is written down early may be read closely later. 2. For lawyers, test every biomechanical opinion against the record and ask whether it explains its method. An expert’s conclusion is only as strong as the work behind it.
Topics
Court: First Department. Year: 2026. Statutes: Labor Law §§ 240(1), 241(6). Result: affirmed.
Reviewed by Frank N. Eskesen, admitted in New York since 2000. Decided October 15, 2026. Posted October 15, 2026.
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