Tobon v. Turner Constr. Co.

Opinion

Tobon v Turner Constr. Co.

2026 NY Slip Op 05065

August 20, 2026

Appellate Division, First 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.

Peter Tobon et al., Plaintiffs-Respondents,

v

Turner Construction Company et al., Defendants-Appellants.

Decided and Entered: August 20, 2026

Index No. 158475/22|Appeal No. 6996|Case No. 2025-03500|

Before: Scarpulla, J.P., González, Rodriguez, Higgitt, Hagler, JJ.

Goldberg Segalla, LLP, White Plains (William T. O'Connell of counsel), for appellants.

Rosenberg, Minc, Falkoff & Wolff, LLP, New York (Jesse M. Minc of counsel), for respondents.

[*1]

Order, Supreme Court, New York County (Mary V. Rosado, J.), entered May 8, 2025, which, to the extent appealed from as limited by the briefs, granted plaintiffs' motion for partial summary judgment on their Labor Law § 240(1) claim, unanimously affirmed, without costs.

In this action where plaintiff worker fell from a scaffold that tipped over while his coworker was pushing it, plaintiffs demonstrated prima facie entitlement to partial summary judgment on the Labor Law § 240(1) claim (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 285 [2003]). Plaintiffs established that defendants failed to provide plaintiff with a scaffold that was "constructed, placed and operated as to give proper protection" (Labor Law §240[1] [emphasis added]). Both plaintiffs' and defendants' experts attributed the accident to the operation of the scaffold.

Plaintiffs were not required to identify any prior problems with the scaffold (see Santos v Monadnock Constr. Inc., 209 AD3d 598, 599 [1st Dept 2022]). A plaintiff need not demonstrate that a scaffold was defective or failed to comply with applicable safety regulations; rather, it must be established that the scaffold proved inadequate to shield the plaintiff from harm directly flowing from the application of the force of gravity to an object or person (see Zimmer v Chemung County Performing Arts, 65 NY2d 513 [1985]; Williams v 520 Madison Partnership, 38 AD3d 464 [1st Dept 2007]). Liability under Labor Law § 240(1) arises where a scaffold tips over even in the absence of physical compromise (see Ortega v Trinity Hudson Holding LLC, 176 AD3d 625 [1st Dept 2019]).

Supreme Court properly determined that plaintiff's participation in the process of moving the scaffold by riding it while it was in motion was not the sole proximate cause of the accident. Nothing in the record suggests that the process was the product of plaintiff's independent devise. Further, comparative negligence is not a defense to a Labor Law § 240 (1) claim (see Perez v 1334 York, LLC, 234 AD3d 455, 456 [1st Dept 2025]).

Defendants also failed to raise a triable issue of fact as to whether plaintiff was a recalcitrant worker (see Biaca-Neto v Boston Rd. II Hous. Dev. Fund Corp., 34 NY3d 1166, 1167-1168 [2020]). Defendant general contractor's instruction not to ride or surf the scaffold cannot serve as the basis for a recalcitrant worker defense (see Gordon v Eastern Ry. Supply, 82 NY2d 555, 563 [1993]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: August 20, 2026