Labor Law § 240(1): A Worker’s Use of a Ladder Modified at a Tenant Employee’s Direction Defeats “Sole Proximate Cause” and Supports Summary Judgment

1. Introduction

Delisle v. FBBT/US Props., LLC, 2026 NY Slip Op 03529 (App Div, 4th Dept June 5, 2026), arises from a construction-site ladder accident at premises owned by FBBT/US Properties, LLC and leased to CSL Plasma Inc. (CSL). Barker Contracting, Inc. served as general contractor and subcontracted work to plaintiff’s employer.

The plaintiff alleged that while standing on an A-frame ladder, the ladder shifted and he fell, injuring his arm as he grabbed the ladder to steady himself. A central factual feature was plaintiff’s claim that a CSL employee taped tube socks over the ladder’s feet to avoid scuffing newly-installed tile, instructed plaintiff to use the modified ladder, and that the socks caused the ladder to slide.

The key legal issues were (i) whether plaintiff established entitlement to summary judgment on liability under Labor Law § 240(1) based primarily on his deposition testimony, (ii) whether defendants raised a triable issue under the sole proximate cause defense, and (iii) the role of credibility and inconsistent accounts at the summary judgment stage. The Fourth Department issued a divided decision: the majority granted plaintiff summary judgment; two justices dissented.

2. Summary of the Opinion

Majority

The Fourth Department modified the order to grant plaintiff summary judgment on liability under Labor Law § 240(1). The court held that plaintiff’s deposition testimony established a statutory violation—an inadequately secured/steadied ladder—and proximate causation. It further held defendants failed to raise a triable issue that plaintiff was the sole proximate cause, because plaintiff’s claimed reason for using the modified ladder was that a CSL employee instructed him to do so to protect the tile floor. The majority also refused to consider defendants’ hearsay argument because it was raised for the first time on appeal.

Dissent (Lindley, J.P., and Greenwood, J.)

The dissent would have affirmed the denial of plaintiff’s motion, finding triable issues of fact and credibility. It emphasized (i) the accident was unwitnessed, (ii) no CSL witness corroborated the existence of “John” or the ladder modification, and (iii) plaintiff’s post-accident workers’ compensation descriptions suggested plaintiff “slipped” while ascending, differing from deposition testimony that the ladder slid. The dissent relied on Court of Appeals authority cautioning that an “accident alone” is insufficient to establish a Labor Law § 240(1) violation or causation and argued the dispute was for a jury.

3. Analysis

A. Precedents Cited

  • Miller v Spall Dev. Corp., 45 AD3d 1297 (4th Dept 2007) (quoting Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35 [2004]): The majority used Miller/Cahill to frame the plaintiff’s prima facie burden: show a statutory violation and proximate cause.
  • Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35 (2004): Central to both majority and dissent. The majority invoked Cahill for the prima facie elements and concluded plaintiff’s deposition satisfied them. The dissent invoked Cahill’s articulation of the sole proximate cause framework and its insistence that liability is not automatic.
  • Montalvo v J. Petrocelli Constr. Inc., 8 AD3d 173 (1st Dept 2004), and Fazekas v Time Warner Cable, Inc., 132 AD3d 1401 (4th Dept 2015): Cited for the settled rule that failure to properly secure/steady a ladder constitutes a Labor Law § 240(1) violation when the ladder is offered as a safety device. These cases support treating ladder slippage/instability as quintessential § 240(1) protection failures.
  • Alati v Divin Bldrs., Inc., 137 AD3d 1577 (4th Dept 2016), and Kirbis v LPCiminelli, Inc., 90 AD3d 1581 (4th Dept 2011): Used to reinforce that a ladder’s failure (sliding/fall) can demonstrate it was not placed to provide proper protection, and that structural soundness is irrelevant to whether the ladder was properly placed/secured. This undercuts defense arguments that the ladder was not “defective.”
  • Weitzel v State of New York, 160 AD3d 1394 (4th Dept 2018); Verdugo v Fox Bldg. Group, Inc., 218 AD3d 1179 (4th Dept 2023); Biaca-Neto v Boston Rd. II Hous. Dev. Fund Corp., 34 NY3d 1166 (2020): These authorities supplied the elements of the sole proximate cause defense and guided the majority’s conclusion that the defense failed on the “no good reason” element.
  • Guaman-Sanango v 57 E. 72nd Corp., 227 AD3d 677-679 (2d Dept 2024), and Finocchi v Live Nation Inc., 204 AD3d 1432 (4th Dept 2022): The majority relied on these to reject the notion that plaintiff must demand safer methods and to support that compliance with on-site direction can supply a “good reason” for using the challenged device. The dissent distinguished Finocchi as a post-trial decision, not a summary judgment record.
  • Ciesinski v Town of Aurora, 202 AD2d 984 (4th Dept 1994): The majority used Ciesinski to hold that defendants’ hearsay objection—raised for the first time on appeal—was unpreserved and therefore not considered.
  • Dissent-only authorities—Klein v City of New York, 89 NY2d 833 (1996); Vega v Restani Constr. Corp., 18 NY3d 499 (2012); Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280 (2003); Krause v Industry Matrix, LLC, 227 AD3d 1560 (4th Dept 2024); Bonczar v American Multi-Cinema, Inc., 158 AD3d 1114 (4th Dept 2018); Cutaia v Board of Mgrs. of the 160/170 Varick St. Condominium, 38 NY3d 1037 (2022); Valente v Lend Lease [US] Constr. LMB, Inc., 29 NY3d 1104 (2017): These cases were marshaled to argue that summary judgment is inappropriate where credibility issues and competing inferences exist, and that “accident alone” does not prove statutory violation or causation.

B. Legal Reasoning

(i) Prima facie Labor Law § 240(1) showing

The majority treated plaintiff’s deposition testimony as sufficient proof that the ladder did not provide “proper protection” because it shifted/slid—an instability that § 240(1) is designed to prevent when elevation-related risks are present. By citing Montalvo v J. Petrocelli Constr. Inc., Fazekas v Time Warner Cable, Inc., Alati v Divin Bldrs., Inc., and Kirbis v LPCiminelli, Inc., the court placed this case in the line of ladder decisions holding that slippage or failure to keep the ladder steady can itself evidence a statutory violation.

The majority also insulated the analysis from “defect” debates: per Kirbis v LPCiminelli, Inc., it did not matter whether the ladder was structurally sound; the question was whether it was properly placed/secured (and, here, whether the modification rendered it unsafe).

(ii) Rejection of the sole proximate cause defense

The core of the decision lies in how the court evaluated the “no good reason” element of sole proximate cause. Defendants showed other unmodified ladders were available and that plaintiff knew of them. But the majority concluded defendants did not raise a triable issue that plaintiff nevertheless chose the modified ladder “for no good reason,” because plaintiff testified a CSL employee instructed him to use it to protect the floor. The majority thus treated compliance with jobsite direction—regardless of whether the CSL employee was plaintiff’s supervisor—as a legally sufficient “reason,” consistent with the statement (drawn from Finocchi v Live Nation Inc.) that a worker is “under no obligation to demand safer methods.”

In practical terms, the majority’s approach narrows the sole proximate cause defense where the worker can plausibly tie the choice of device to jobsite direction or constraints, even when safer devices exist on site.

(iii) Procedure and preservation: hearsay on appeal

Defendants attempted to recast plaintiff’s testimony about what “John” said as inadmissible hearsay. The majority refused to consider that argument because it was raised for the first time on appeal, citing Ciesinski v Town of Aurora. The procedural point matters: on summary judgment, litigants commonly challenge the admissibility of key statements; failure to make that challenge in Supreme Court can be outcome-determinative.

(iv) The dissent’s credibility-centered approach

The dissent stressed that summary judgment requires eliminating material factual disputes, and argued plaintiff’s inconsistent accounts (workers’ compensation forms describing a “slip” while ascending) and lack of corroboration about “John” and the socks created classic credibility issues for a jury. It relied on Klein v City of New York for the proposition that unwitnessed accidents can still be resolved on summary judgment in some cases—but not where credibility is genuinely in dispute—and on Cutaia v Board of Mgrs. of the 160/170 Varick St. Condominium and Valente v Lend Lease [US] Constr. LMB, Inc. for the caution that the accident alone does not establish violation/causation.

C. Impact

  • Strengthening plaintiff’s path to summary judgment in ladder-modification scenarios: Where a ladder is altered (even informally) in a way that plausibly increases slippage risk, and the worker ties the use of that ladder to jobsite instruction or expectations, the majority’s reasoning supports awarding summary judgment despite the existence of other ladders.
  • Constraining “sole proximate cause” where jobsite direction is shown: The decision underscores that the “no good reason” element is often the defense’s weakest link. Evidence of being told to proceed a certain way—especially to satisfy site conditions (here, protecting new tile)—may defeat the defense even if safer equipment is available.
  • Operational consequences for owners/tenants/GCs: The case signals risk when non-contractor personnel (e.g., tenant employees) intervene in work methods or modify safety devices. Even if that person is not a supervisor, their direction may be used to show the worker’s choice was reasonable, increasing exposure under § 240(1).
  • Appellate preservation as a case-dispositive lever: The refusal to entertain a hearsay argument first raised on appeal highlights that admissibility challenges must be timely developed in motion practice, particularly where a plaintiff’s deposition testimony is the linchpin.
  • Continuing tension in unwitnessed-accident summary judgment practice: The split reflects an ongoing fault line: how courts weigh inconsistent accounts and credibility challenges when the plaintiff’s testimony is the principal proof of both violation and causation.

4. Complex Concepts Simplified

  • Labor Law § 240(1) (“Scaffold Law”): A New York statute requiring owners/contractors to provide proper protection against elevation-related risks (e.g., falls from ladders). Liability turns on whether a required safety device was inadequate and that inadequacy proximately caused injury.
  • Prima facie case: The minimum showing a moving party must make to win summary judgment—here, proof of (1) a § 240(1) violation and (2) proximate causation.
  • Proximate cause: A legally sufficient causal link between the safety violation (unstable ladder) and the injury.
  • Sole proximate cause defense: Even under § 240(1), defendants can avoid liability if the worker alone caused the accident by ignoring available, known, expected safety devices for no good reason, and the accident would not have happened otherwise.
  • Summary judgment: A pretrial ruling granted only when there are no material factual disputes requiring a trial. Disagreements over credibility and competing reasonable inferences can defeat it.
  • Preservation / “raised for the first time on appeal”: Appellate courts generally do not consider arguments not made to the trial court. Here, that principle blocked a late hearsay challenge.

5. Conclusion

Delisle v. FBBT/US Props., LLC reinforces a plaintiff-friendly application of Labor Law § 240(1) in ladder cases: where the worker testifies that a ladder shifted due to an unsafe condition (including an on-site modification) and that condition caused the fall, summary judgment on liability may be appropriate. Critically, the Fourth Department majority held that the presence of other ladders does not establish sole proximate cause when the worker had a plausible “good reason” for using the challenged ladder—here, compliance with a tenant employee’s instruction aimed at protecting the finished floor. The dissent highlights the countervailing principle that credibility disputes and inconsistent accounts can require a trial, underscoring that § 240(1) summary judgment remains highly fact-sensitive.