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
Under Labor Law 240(1), a worker struck by a falling object that should have been secured may win on liability before trial, even if he cannot say exactly what made the object fall. Here, the First Department affirmed summary judgment for a worker hit in the back by a falling beam, based on his testimony, including that the object seen in a video his foreman recorded shortly after the accident was a beam, and the foreman’s testimony that a coworker said he had accidentally hit the beam on the floor above.
The case
- Court
- Appellate Division, First Department
- Decided
- October 27, 2026
- Case
- Oliveira v 5462th Realty LLC
- Citation
- 2026 NY Slip Op 06254
- Official text
- Read the decision on the New York courts’ official reporter site
The facts
The plaintiff worked for a subcontractor of Prestige Construction NY LLC. He testified that he felt an object strike him in the back, causing him to fall, and that the item seen on the ground in a video recorded by his foreman shortly after the accident was a beam. The foreman testified that one of the plaintiff’s coworkers, who worked for the same subcontractor, said that he had accidentally hit a beam while passing a form on the floor above, causing the beam to fall. The plaintiff sued 5462th Realty LLC, Prestige, and others. The Supreme Court, New York County, granted his motion for summary judgment on liability under Labor Law § 240(1) against 5462th Realty and Prestige, and denied their motion for summary judgment dismissing that claim and his Labor Law § 241(6) claim based on one Industrial Code section. They appealed.
The holding
The First Department unanimously affirmed. Relying on the plaintiff’s testimony and the foreman’s account of the coworker’s statement, for which it cited CPLR 4549, the court held: “This evidence is sufficient to establish that plaintiff was struck by a falling beam” (2026 NY Slip Op 06254, *1). “The foreman also testified that proper safety practices required either removing or securing the beam, thus establishing that the beam was an object that required securing under the statute” (id.). The defendants pointed to “no credible evidence suggesting that there are differing versions of the accident” (id. at *2). And “it is not dispositive that plaintiff did not know exactly what caused the beam to fall” (id.). No expert was needed, because “the facts of the accident demonstrate that an elevation-related safety device failed, or that no device was placed so as to provide plaintiff with the proper protection” (id.). The Labor Law § 241(6) claim became academic.
What changed
Nothing new: this applies settled law, including the court’s earlier decisions in Malan v FSJ Realty Group II LLC (213 AD3d 541) and Viruet v Purvis Holdings LLC (198 AD3d 587).
What it means
- Here, the worker felt something strike his back. His testimony, including that the object in the foreman’s video was a beam, and what a coworker told the foreman were enough together.
- CPLR 4549 says that a statement offered against an opposing party is not excluded as hearsay if it was made by that party’s “agent or employee on a matter within the scope of that relationship and during the existence of that relationship.” The court cited it for the coworker’s statement.
- Testimony that safe practice required removing or securing the beam helped show it was an object the statute required to be secured.
- Liability under Labor Law 240(1) is now decided against the two companies that appealed. The decision does not address damages.
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, the evidence showed what hit him; what he did not know was why the beam fell, and that was “not dispositive.” In our view, the difference is between not knowing what happened and not knowing why it happened. Two lessons. 1. If you are hurt at work, tell your supervisor what happened that day, and write down the names of coworkers who saw it or said anything about it; a photo or video taken right after, like the foreman’s video here, may matter. Get legal advice promptly. 2. For lawyers, ask the foreman at his deposition what the crew told him, what the safe practice was for the object that fell, and whether he took photos or video. The answer to “why did it fall?” may come from someone else.
Topics
Court: First Department. Year: 2026. Statutes: Labor Law §§ 240(1), 241(6); CPLR 4549. Result: affirmed.
Reviewed by Frank N. Eskesen, admitted in New York since 2000. Decided October 27, 2026. Posted October 28, 2026.
Questions about your own accident?
Call us for a free consultation. Calls answered live 24 hours a day, 7 days a week.