Rolka v. Neelam Constr. Corp.
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Opinion
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Bureau Thomas J.K. Smith, State Reporter
Rolka v Neelam Constr. Corp.
2026 NY Slip Op 04335
July 8, 2026
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
Marcin Rolka, respondent,
v
Neelam Construction Corporation, et al., appellants.
Supreme Court of the State of New York, Appellate Division, Second Judicial Department
Decided on July 8, 2026
2024-08597, (Index No. 719448/22)
Hector D. Lasalle, P.J.
Helen Voutsinas
Laurence L. Love
Phillip Hom, JJ.
Kelley Kronenberg, New York, NY (Elise Sosa of counsel), for appellants.
Subin, LLP (Pollack Pollack Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac], of counsel), for respondent.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), dated May 24, 2024. The order, insofar as appealed from, granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1).
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiff's motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) is denied.
In April 2022, the plaintiff allegedly sustained injuries while working for Ladi Construction, a subcontractor hired by the defendant Neelam Construction Corporation to perform waterproofing, demolition, and debris removal work at Long Island City High School in Queens. On the day of the accident, as the plaintiff was bent over and picking up debris from a scaffold beneath another scaffold that other demolition workers were standing on, an object struck him in the back of the head.
Thereafter, the plaintiff commenced this personal injury action against the defendants, asserting, inter alia, a cause of action alleging a violation of Labor Law § 240(1). The plaintiff subsequently moved, among other things, for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1). In an order dated May 24, 2024, the Supreme Court, inter alia, granted that branch of the plaintiff's motion. The defendants appeal.
Labor Law § 240(1) "'imposes a nondelegable duty and absolute liability upon owners and general contractors for failing to provide safety devices necessary to protect workers from risks inherent in elevated work sites when that failure is a proximate cause of a plaintiff's injuries'" (Lahoz-Vargas v Bop Ne, LLC, 241 AD3d 812, 813-814, quoting Zholanji v 52 Wooster Holdings, LLC, 188 AD3d 1300, 1301). "Labor Law § 240(1) applies to both 'falling worker' and 'falling object' cases" (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267).
With respect to falling objects, the plaintiff must demonstrate the existence of a hazard contemplated under Labor Law § 240(1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein (see Rzepka v City of New York, 227 AD3d 922, 923). "'The extraordinary protections of Labor Law § 240(1) extend only to a narrow class of special hazards, and do not encompass any and all perils that may be connected in some tangential way with the [*2]effects of gravity'" (Ortega v Fourtrax Contr. Corp., 214 AD3d 666, 667 [internal quotation marks omitted], quoting Nieves v Five Boro A.C. & Refrig. Corp., 93 NY2d 914, 915-916). The injury suffered must be "'the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential'" (id. [internal quotation marks omitted], quoting Soto v J. Crew Inc., 21 NY3d 562, 566). A plaintiff must also show that "'at the time the object fell, it either was being hoisted or secured, or required securing for the purposes of the undertaking'" (Lahoz-Vargas v Bop Ne, LLC, 241 AD3d at 813, quoting Carranza v JCL Homes, Inc., 210 AD3d 858, 859). Moreover, a plaintiff must show that "the object fell . . . because of the absence or inadequacy of a safety device of the kind enumerated in the statute" (Narducci v Manhasset Bay Assoc., 96 NY2d at 268; see Fabrizi v 1095 Ave. of the Ams., L.L.C., 22 NY3d 658, 663).
Here, the plaintiff's submissions did not establish what object struck him or where it came from. As such, the plaintiff's submissions demonstrated the existence of triable issues of fact as to whether the accident was the result of an elevation-related hazard or gravity-related risk encompassed by Labor Law § 240(1), and whether the object struck the plaintiff because of the absence or inadequacy of a safety device of the kind enumerated in the statute. Since the plaintiff failed to meet his prima facie burden, it is unnecessary to consider the adequacy of the defendants' opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).
Accordingly, the Supreme Court should have denied that branch of the plaintiff's motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1).
The plaintiff's remaining contentions are improperly raised for the first time on appeal. The defendants' remaining contention is academic in light of our determination.
LASALLE, P.J., VOUTSINAS, LOVE and HOM, JJ., concur.
ENTER:
Darrell M. Joseph
Clerk of the Court
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