Moving Scaffolds Under Ceiling Obstacles: Unsecured Materials “Require Securing” — Second Department Revives Labor Law §§ 240(1) and 241(6) Claims and Negligence Against Subcontractor

Introduction

This commentary addresses Claesen v. VRD Contracting, Inc., 2025 NY Slip Op 04545 (App Div 2d Dept Aug. 6, 2025), a construction-injury appeal arising from a falling-object incident during the relocation of a scaffold in a school gymnasium. The plaintiff, William C. Claesen, was struck in the back by an unsecured spackle bucket that fell from a scaffold as he and coworkers moved it beneath a ceiling partition that necessitated removal of the scaffold’s safety railings and toeboards. The defendants included the school district owner and school facility (Shoreham–Wading River Central School District and Miller Avenue Elementary School), the general contractor (VRD Contracting, Inc.), the construction manager (Park East Construction Corp.), and Donninger Construction, Inc., whose workers had used the scaffold the day before to perform spackling work.

The key issues were:

Whether Labor Law § 240(1) (the Scaffold Law) applies to a falling-object injury where the object was not being hoisted but “required securing” during the undertaking of moving the scaffold.
Whether the plaintiff’s conduct could constitute the sole proximate cause, thus barring § 240(1) liability.
Whether Labor Law § 241(6) claims based on specific Industrial Code provisions tied to scaffold safety should survive summary judgment.
Whether a non-owner/non-GC defendant (Donninger) could be liable in common-law negligence for allegedly creating the hazardous condition.

Summary of the Judgment

The Second Department modified the Supreme Court’s order as follows:

Affirmed the denial of the plaintiff’s motion for summary judgment on Labor Law § 240(1) (triable issues of sole proximate cause remain).
Reversed the dismissal of the plaintiff’s Labor Law §§ 240(1) and 241(6) claims against the owner, GC, CM, and school (the “school defendants”) — those claims are reinstated for trial.
Reversed the dismissal of the common-law negligence claim against Donninger — that claim is also reinstated for trial.

In short, the court held that the unsecured bucket “required securing” for purposes of the undertaking (moving the scaffold under a ceiling partition after removing safety railings and toeboards), bringing the claim within § 240(1). However, factual questions about whether the plaintiff was the sole proximate cause precluded granting summary judgment to the plaintiff and precluded dismissing the claim. The court likewise reinstated the § 241(6) claims predicated on specific scaffold-related Industrial Code provisions and revived the negligence claim against Donninger for allegedly creating the dangerous condition.

Analysis

1) Precedents Cited and Their Influence

Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 (2009): The Court of Appeals articulated the “single decisive question” for § 240(1): whether the injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a “physically significant elevation differential.” The Second Department applied Runner’s functional test, recognizing that the risk here — a bucket falling from an elevated scaffold — fits the elevation-related hazard the statute targets.
Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 7 (2011): Wilinski clarified that falling-object liability is not confined to objects being hoisted. The Second Department relied on this to reject any narrow reading limiting § 240(1) to hoisting/secured loads, reinforcing that unsecured materials on a scaffold can trigger the statute.
Escobar v Safi, 150 AD3d 1081, 1082–83 (2d Dept 2017): Escobar emphasized that falling-object liability also exists “where the plaintiff demonstrates that, at the time the object fell, it required securing for the purposes of the undertaking.” The court adopted that principle here, holding that the unsecured spackle bucket required securing in the context of the scaffold relocation with safety features removed.
Gambino v Massachusetts Mut. Life Ins. Co., 8 AD3d 337, 338 (2d Dept 2004): Cited “contra” to underscore that older, narrower views limiting § 240(1) to hoisting scenarios are no longer controlling after Runner and Wilinski. The panel explicitly reaffirmed the broader “requires securing” approach.
Lojano v Soiefer Bros. Realty Corp., 187 AD3d 1160, 1162 (2d Dept 2020): Comparative fault is not a defense under § 240(1), but if a plaintiff is the sole proximate cause of the accident, the claim fails. The defendants’ evidence that plaintiff had the responsibility to ensure the scaffold was clear before removing safety devices created a triable issue under this doctrine.
Gonzalez v City of New York, 151 AD3d 492 (1st Dept 2017): Cited to support the proposition that a § 240(1) violation can be a proximate cause when unsecured items fall from an elevated work surface. This aided the plaintiff’s prima facie showing on § 240(1).
Corchado v 5030 Broadway Props., LLC, 103 AD3d 768, 769 (2d Dept 2013): Provided precedent for denying summary judgment where evidence suggests the plaintiff had a duty (e.g., to clear a scaffold) and could be the sole proximate cause. The court used this to find a factual dispute that prevented summary judgment for either side on § 240(1).
Moscati v Consolidated Edison Co. of N.Y., Inc., 168 AD3d 717, 718 (2d Dept 2019) and Argueta v City of New York, 223 AD3d 862, 863 (2d Dept 2024): Reiterated that § 241(6) imposes a nondelegable duty to comply with specific Industrial Code provisions and that plaintiffs must show a violation of a concrete, applicable regulation causing the injury. The court applied these standards to reinstate the § 241(6) claims.
Ochoa v JEM Real Estate Co., LLC, 223 AD3d 747, 749 (2d Dept 2024): Supported denial of defense summary judgment where triable issues exist as to Industrial Code violations and causation under § 241(6).
Sledge v S.M.S. Gen. Contrs., Inc., 151 AD3d 782, 783 (2d Dept 2017); Poracki v St. Mary’s R.C. Church, 82 AD3d 1192, 1195 (2d Dept 2011); Delaluz v Walsh, 228 AD3d 619, 622–23 (2d Dept 2024); Lacey v Lancaster Dev. & Tully Constr. Co., LLC, 193 AD3d 1398, 1399–1401 (3d Dept 2021): Collectively confirm that a contractor that is not an owner/GC/agent under the Labor Law may still face common-law negligence liability where its work created the dangerous condition proximately causing injury, and that summary judgment is improper if triable issues persist.

2) The Court’s Legal Reasoning

Labor Law § 240(1) — Falling Object “Required Securing” During Scaffold Relocation

The court recognized that the accident occurred while moving a scaffold under a ceiling partition, a maneuver that undisputedly required removal of safety railings and toeboards. In that context, the unsecured spackle bucket on the scaffold platform presented an elevation-related hazard. Applying Runner, Wilinski, and Escobar, the court held that the bucket “required securing” for the purposes of the undertaking (i.e., the relocation of the scaffold without its normal protective features). Thus, the plaintiff established a prima facie § 240(1) violation and proximate causation.

However, because the school defendants produced evidence suggesting it was the plaintiff’s responsibility to confirm the scaffold was clear before removing safety devices and moving it, the panel found a triable issue as to whether the plaintiff was the sole proximate cause — a complete defense under § 240(1). On that basis, the court:

Affirmed denial of the plaintiff’s motion for summary judgment on § 240(1).
Reversed the grant of summary judgment to the school defendants and reinstated the § 240(1) claim for trial.

Labor Law § 241(6) — Specific Industrial Code Provisions and Causation

The plaintiff predicated § 241(6) on discrete Industrial Code rules concerning scaffolds and safety hardware, specifically 12 NYCRR 23-5.1(j), 23-5.3(e), 23-5.18(b), and 23-1.15. While the decision does not parse each rule’s text, these provisions address concrete, scaffold-related safety requirements, including safety railings, toeboards, storage/securing of materials, and standards for mobile/manually propelled scaffolds. The school defendants failed to “eliminate triable issues” as to:

Whether these regulations applied to the work and equipment at issue.
Whether any violations occurred (e.g., leaving unsecured materials on the scaffold during movement with protective features removed).
Whether such violations were a proximate cause of the accident.
Whether the plaintiff’s conduct was the sole proximate cause (a question that likewise remained disputed).

Accordingly, the § 241(6) claims were reinstated.

Common-Law Negligence Against Donninger — Creating the Hazard

Even where a defendant is not an owner, general contractor, or statutory “agent” for Labor Law purposes, it may still be liable in negligence if its work created a hazardous condition that proximately caused the injury. The record showed Donninger’s workers used the scaffold the previous day for spackling, and the accident involved an unsecured spackle bucket falling during the scaffold move. Donninger’s submissions did not eliminate triable issues as to whether it created an unreasonable risk of harm that was a proximate cause of the plaintiff’s injuries (for example, by leaving or failing to secure the bucket). Therefore, summary judgment for Donninger on negligence was improper, and the claim was reinstated.

3) Impact and Practical Significance

Key Clarifications and Reinforcements

Broad application of “falling object” liability: The decision underscores that § 240(1) applies when an object on a scaffold “requires securing” during the work — not only when objects are being hoisted or lowered. This is particularly salient during scaffold relocation operations where protective features (railings/toeboards) are temporarily removed.
Sole proximate cause remains a live, fact-dependent defense: Even where a § 240(1) violation appears, owners/GCs may reach a jury on a sole-proximate-cause theory if they present evidence that the injured worker disregarded training, instructions, or a clear responsibility (e.g., to clear the platform) and that safe means were available.
Vitality of § 241(6) claims: The court confirms that scaffold-specific Industrial Code provisions can carry § 241(6) claims past summary judgment if their applicability and causal nexus are fairly disputable. Defense motions must meticulously address each cited provision’s applicability and the facts of compliance.
Negligence exposure for trade contractors: Subcontractors and trade contractors who are not statutory “agents” may nonetheless face negligence liability if their work created the hazard. This emphasizes the importance of turnover procedures and securing tools/materials on shared equipment.

Anticipated Effects on Litigation and Site Practice

More § 240(1)/§ 241(6) claims will survive dispositive motions where unsecured materials are left on elevated platforms during equipment moves or transitions that necessitate removal of protective features.
Defense strategies will continue to focus on sole proximate cause by documenting worker responsibilities and pre-move safety protocols (e.g., requiring a “clear and secure” check before removing railings/toeboards and moving scaffolds).
Expect renewed attention to Industrial Code compliance in relation to mobile scaffolds, toeboards, railings, and the securing of tools and materials on platforms, particularly during relocation.
Subcontractors will need robust handover and housekeeping procedures — including positive verification that no tools/materials remain on platforms — when multiple trades share scaffolds.

Complex Concepts Simplified

Labor Law § 240(1) (Scaffold Law): Imposes a nondelegable duty on owners, general contractors, and their agents to provide adequate safety devices to protect against elevation-related risks (falls from heights or falling objects).
“Requires securing”: An object at an elevated site must be fastened, contained, or otherwise stabilized when, in the course of the work, it poses a foreseeable falling risk (e.g., materials on a scaffold platform during movement).
“Physically significant elevation differential”: A meaningful difference in height between the object and the worker, such that gravity-related harm is a direct risk if protective measures fail.
Sole proximate cause: A complete defense under § 240(1) where the worker’s actions alone caused the accident despite the availability of adequate safety devices and proper instructions that the worker unreasonably failed to use or follow.
Labor Law § 241(6): Creates a nondelegable duty to comply with specific Industrial Code regulations. To succeed, the plaintiff must identify concrete, applicable rules and show their violation proximately caused the injury.
Industrial Code provisions cited: 12 NYCRR 23-5.1(j), 23-5.3(e), 23-5.18(b), and 23-1.15 — scaffold-related rules governing, among other things, safety railings, toeboards, securing/storing materials on scaffolds, and standards for mobile or manually propelled scaffolds.
Common-law negligence for non-Labor Law defendants: Even if not liable under §§ 240/241, a contractor may be negligent if its work created a hazardous condition that was a proximate cause of the injury.
Summary judgment and “triable issue of fact”: Summary judgment is denied if evidence shows a real factual dispute that must be resolved by a jury, including conflicting accounts about who created the hazard or who bore responsibility for safety checks.

Practice Pointers

For owners/GCs/CMs: Implement and enforce “scaffold relocation” protocols requiring:
- Removal of all tools and materials from the platform before dismantling railings/toeboards.
- Use of nets, debris containment, bucket hooks, or tethers when any object must remain on an elevated surface.
- Documented assignment of responsibility for the pre-move “clear and secure” check.
For subcontractors/trade contractors: Develop turnover checklists when leaving shared scaffolds, including affirmative verification that no unsecured items remain on the platform; photograph and log turnover status.
For litigators (plaintiffs): Preserve evidence showing that the object “required securing” in the context of the work and that appropriate safety devices were absent or removed; identify and explain each Industrial Code provision’s applicability and causal link.
For litigators (defense): To support a sole-proximate-cause defense, assemble proof that adequate protective devices and protocols were available and known, that plaintiff was trained and instructed to clear/secure the platform, and that plaintiff unreasonably failed to follow those instructions.

Conclusion

Claesen v. VRD Contracting, Inc. clarifies and reinforces a practical but important point for New York construction law: when a scaffold must be moved under ceiling impediments and safety railings/toeboards are removed, unsecured materials on the platform are objects that “require securing” within the ambit of Labor Law § 240(1). At the same time, the decision confirms that a well-supported sole-proximate-cause defense can prevent summary judgment for plaintiffs where the worker had a defined responsibility (such as ensuring the platform was clear) and failed to discharge it.

The court also reaffirmed the vitality of § 241(6) claims grounded in specific, scaffold-focused Industrial Code rules, and it preserved common-law negligence exposure for contractors whose work may have created the hazard. The net effect is to keep fact-intensive disputes — whether safety protocols were followed, which Industrial Code rules apply, and who created or failed to abate the hazard — for the jury.

In the broader legal context, the decision aligns Second Department jurisprudence with the Court of Appeals’ Runner/Wilinski framework while further distancing the law from older, more restrictive readings like Gambino. It will shape site practices by emphasizing pre-move clearance, securing of materials during scaffold relocation, and robust turnover procedures among trades, thereby aiming to reduce falling-object incidents while preserving jury resolution of contested responsibility.