Decision Day

Worker at Sidewalk Level Falls Over a Barrier Into a Below-Ground Entranceway: Labor Law 240(1) Applies (Nunez v Hispanic Socy. of Am., 1st Dept 2026)

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

Labor Law 240(1) can protect a worker standing at ground level when the work exposes him to a fall to a lower level and he is not given adequate safety devices. Here, the First Department granted partial summary judgment on liability under Labor Law 240(1), against The Hispanic Society of America, to a plumber’s assistant who fell over a barrier at sidewalk level into a below-ground entranceway, where his work required him to lean over that barrier.

The case

Court
Appellate Division, First Department
Decided
October 22, 2026
Case
Nunez v Hispanic Socy. of Am.
Citation
2026 NY Slip Op 06206
Official text
Read the decision on the New York courts’ official reporter site

The facts

The plaintiff, employed as a plumber’s assistant, was instructed to work near a barrier, or “fence,” above an underground entranceway to set up a winch, and he was required to lean over the barrier to do his work. He fell over the barrier from the sidewalk level into the below-ground entranceway while attempting to retrieve a pipe at the bottom of the entranceway. He sued The Hispanic Society of America (HSA) and others and moved for partial summary judgment on his Labor Law § 240(1) claim against HSA. HSA moved for summary judgment dismissing that claim and his Labor Law § 200 and common-law negligence claims against it. The Supreme Court, New York County, denied both motions, and both sides appealed.

The holding

The First Department unanimously modified the order to grant the plaintiff’s motion, and otherwise affirmed. “Thus, even if plaintiff was working on the ground level, he was working on an elevated work site and was not provided with adequate safety devices to protect him from falling over the barrier” (2026 NY Slip Op 06206, *1). “HSA failed to raise an issue of fact as to whether plaintiff was the sole proximate cause of his accident” (id.). Because the plaintiff was entitled to partial summary judgment under Labor Law § 240(1), the court did not need to reach the parties’ arguments on Labor Law § 200 and common-law negligence (id.).

What changed

Nothing new: this applies settled law, including the court’s earlier decisions in Haskins v Metropolitan Transp. Auth. (227 AD3d 409) and Hoffman v SJP TS, LLC (111 AD3d 467).

What it means

  1. Here, what mattered was the drop the worker was exposed to, not only where his feet were. A worker at street level who must lean over a drop to do the job may be protected.
  2. Once the worker made his showing, it was up to HSA to raise a question of fact, for example that the worker alone caused the accident. It did not.
  3. Liability under Labor Law 240(1) is now decided against HSA. The decision does not address damages or the claims against the other defendants.

Our view

Commentary by Frank N. Eskesen. This section is opinion.

Compare our entry on Mema v Procida Constr. Corp. (First Department, October 20). There, a worker lost his motion under the same statute because his own testimony pointed to a second possible cause, a wet floor, and he did not know which came first. Here, nothing in the decision suggests a competing account, and the defense did not raise a question of fact that the worker alone caused the fall. In our view, leaning over a barrier above a below-ground entranceway carries the same kind of danger as working at the edge of a roof: the risk comes from the relative drop below, not from how high the worker is standing above ground level. The statute asks whether the worker was given proper protection against that drop. We see two lessons. 1. If you are hurt on a construction, renovation, or repair job in a fall into a pit, stairwell, trench, or other lower level, report it that day and get legal advice promptly; the law may protect you even if you were standing on the ground. 2. For lawyers, describe the drop and the task that put the worker over it, not just where the worker stood. What matters is the gravity-related risk of a fall, not what floor the fall started on.

Topics

Labor Law 240(1)Summary Judgment

Court: First Department. Year: 2026. Statutes: Labor Law §§ 200, 240(1). Result: modified.

Reviewed by Frank N. Eskesen, admitted in New York since 2000. Decided October 22, 2026. Posted October 26, 2026.

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