Nusbaum v. 1455 Washington Avenue LLC: Unexplained Ladder Falls and the Presumption of Inadequate Protection under Labor Law § 240(1)

I. Introduction

The Appellate Division, Third Department’s decision in Nusbaum v. 1455 Washington Avenue LLC, 2025 NY Slip Op 07066 (Dec. 18, 2025), is a significant contribution to New York’s Labor Law § 240(1) (“Scaffold Law”) jurisprudence, particularly in ladder-fall cases. The majority reinforces and slightly extends a line of Third Department authority that treats an unexplained ladder fall as creating a powerful presumption that the ladder was inadequate, with the worker’s alleged “misuse” generally relegated to the realm of comparative negligence, not a complete bar to recovery. A detailed dissent, however, insists that Blake v Neighborhood Hous. Servs. of N.Y. City (1 NY3d 280 [2003]) and recent Court of Appeals cases require that such issues usually be left to the factfinder.

The case pits a sign installer (plaintiff David W. Nusbaum) against 7‑Eleven, Inc. (the commercial tenant) and the property owner, 1455 Washington Avenue LLC (collectively, “defendants”). The plaintiff, employed by a sign contractor (AJ Sign Co.), fell from a two-sided extendable step ladder while taping off a section of an exterior wall, approximately 8–10 feet above ground, in connection with a sign installation at a 7‑Eleven store in Albany.

The legal stakes center on whether, under Labor Law § 240(1), the plaintiff is entitled to partial summary judgment on liability where:

• a ladder, apparently sound and properly set up on level ground, suddenly wobbles and falls away from the building “in the blink of an eye,”
• the worker had only that ladder available and was directed to perform work at height while alone, and
• defendants argue that the worker’s own misuse of the ladder (straddling it, overreaching, and standing above the manufacturer’s rated standing height) was the sole proximate cause of the accident.

The majority (Reynolds Fitzgerald, J., joined by Aarons and Pritzker, JJ.) reverses Supreme Court and grants the plaintiff partial summary judgment on his § 240(1) claim. The dissent (Clark, J.P., joined by McShan, J.) would affirm, emphasizing the need for a jury to resolve contested issues about ladder adequacy and misuse.

II. Summary of the Opinion

A. Procedural Posture

Plaintiff sued the owner (1455 Washington Avenue LLC) and tenant (7‑Eleven, Inc.) alleging violations of Labor Law §§ 200, 240(1), 241(6), and common-law negligence. The owner and tenant asserted cross-claims against MC Group/Icon (Stratus), which then commenced a third-party action against plaintiff’s employer, AJ Sign, including a contractual indemnification claim.

After discovery, plaintiff moved for partial summary judgment on liability under Labor Law § 240(1). Supreme Court (Kupferman, J.) denied the motion, finding triable issues as to whether plaintiff was the sole proximate cause of his injuries. Plaintiff appealed.

B. The Majority Holding

The majority holds that:

1. Plaintiff made a prima facie showing of a Labor Law § 240(1) violation and causation by demonstrating that:
   • he was engaged in covered work (sign installation-related painting prep),
   • he was using a ladder supplied to him to reach an elevated work area, and
   • the ladder, without an identifiable reason, “wobbled” and fell away from the building, causing him to fall.
2. This unexplained ladder fall entitles plaintiff to a presumption that the ladder was not adequate to afford proper protection (drawing on Barnhardt v Richard G. Rosetti, LLC, Begeal v Jackson, and Bennett v Savage).
3. The burden then shifted to defendants to show either:
   • no statutory violation (i.e., adequate safety devices were provided and properly placed), and
   • that plaintiff’s own acts were the sole proximate cause of the accident.
4. Defendants’ proof (including evidence that the ladder was not structurally defective and that plaintiff stood above the height limit and straddled/overreached) failed to raise a triable issue:
   • Evidence that a ladder “was not defective” does not create an issue of fact when the ladder “slips or otherwise fails to perform its function of supporting the worker.”
   • Plaintiff’s method of using the ladder—straddling and overreaching—was employed to perform the work, given that the only equipment provided was this ladder, and he was directed to tape off the wall while his coworker (who could have stabilized it) was absent.
   • These facts underscore the inadequacy of the safety device and, at most, raise comparative negligence, which does not defeat liability under § 240(1).

Accordingly, the court modifies the Supreme Court’s order and grants plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim.

C. The Dissent’s View

The dissent agrees that plaintiff made a prima facie case by invoking the presumption arising from an unexplained ladder fall, but would hold that defendants raised triable issues of fact sufficient to defeat summary judgment. In particular:

• Defendants’ expert showed that:
  • the ladder was designed to function either as a stepladder (A‑frame) or an extension ladder;
  • labels clearly warned that the maximum standing height in A‑frame mode was 6 feet, 8 inches, yet plaintiff stood approximately 10 feet above the ground; and
  • industry and American Ladder Institute guidelines prohibit straddling or overreaching on a stepladder, as such misuse can pull the ladder sideways.
• This creates a “plausible view of the evidence” that:
  • the ladder was an adequate safety device when used properly, and
  • plaintiff’s misuse was the sole proximate cause of his fall, thereby negating liability under § 240(1) per Blake and Robinson v East Med. Ctr., LP.
• Given the competing expert opinions and the factual dispute over adequacy and causation, these issues should be resolved by a jury.

Thus, the dissent would affirm Supreme Court’s denial of summary judgment.

III. Precedents and Authorities Cited

A. Core § 240(1) Doctrine

The opinion situates itself within established § 240(1) doctrine:

• Saint v Syracuse Supply Co., 25 NY3d 117 (2015):
  Reaffirmed that § 240(1) imposes a nondelegable duty on owners and contractors and that liability is “absolute” when its violation proximately causes injury.
• Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280 (2003):
  • Clarified that a fall from a ladder does not automatically result in liability; the plaintiff must prove:
    1. a statutory violation (failure to furnish adequate safety devices properly constructed, placed, and operated), and
    2. that the violation was a proximate cause of the fall.
  • Established that where a plaintiff’s own actions are the sole proximate cause of the accident, there can be no liability—even if a fall from a height occurred.
  • Crucially introduced the idea (in footnote 8) that when ladders or scaffolds collapse or malfunction “for no apparent reason,” a plaintiff is entitled to a presumption that the device was not good enough to afford proper protection; but that presumption is rebuttable if the defendant presents a credible alternative account.
• Barreto v Metropolitan Transp. Auth., 25 NY3d 426 (2015):
  Reaffirmed that a worker’s ordinary negligence is not a defense to § 240(1); only when the worker is the sole proximate cause does the defense succeed.

B. Third Department Ladder Cases Underpinning the Majority

The majority leans heavily on its own ladder jurisprudence:

• Barnhardt v Richard G. Rosetti, LLC, 216 AD3d 1295 (3d Dept 2023), lv dismissed 40 NY3d 1005 (2023):
  • Key quote adopted in Nusbaum:

    “when a worker injured in a fall was provided with an elevation-related safety device, [here the ladder,] the question of whether that device provided proper protection within the meaning of Labor Law § 240(1) is ordinarily a question of fact, except in those instances where the unrefuted evidence establishes that the device collapsed, slipped or otherwise failed to perform its function of supporting the worker and his or her materials.”

  • Where unrefuted evidence shows the device failed (e.g., unexplained collapse), adequacy ceases to be a jury question; the court may determine inadequacy as a matter of law and grant summary judgment.
• Begeal v Jackson, 197 AD3d 1418 (3d Dept 2021):
  • Applied the presumption of inadequacy where a ladder slipped or failed without an apparent cause.
  • Held that defendants must raise a factual issue that there was no statutory violation and that plaintiff’s acts were the sole cause of the accident; absent such proof, summary judgment is appropriate.
• Bennett v Savage, 192 AD3d 1243 (3d Dept 2021):
  Reinforced that a ladder’s unexplained movement or failure in use can support summary judgment for the worker.
• Dalaba v City of Schenectady, 61 AD3d 1151 (3d Dept 2009):
  Emphasized that where a ladder slips or fails to perform its function, the adequacy of the ladder is not a triable fact issue.
• Markou v Sano-Rubin Constr. Co., Inc., 182 AD3d 674 (3d Dept 2020):
  Again supported the principle that unexplained failures of elevation devices support liability as a matter of law.

Collectively, these cases articulate a Third Department doctrine: an unexplained failure of a ladder to support a worker generally allows the court to find the device inadequate as a matter of law, notwithstanding the normal rule that adequacy is a fact question.

C. Additional Authorities Relied on by the Majority

• Wheat v Town of Forestburgh, 223 AD3d 1134 (3d Dept 2024):
  Quoted for the proposition that § 240(1) must be construed “as liberally as may be” to accomplish its protective purpose, with a “commonsense approach to the realities of the workplace.”
• James v Marini Homes, LLC, 234 AD3d 1078 (3d Dept 2025):
  Cited for reaffirming the nondelegable duty and absolute liability structure of § 240(1).

D. Precedents Highlighted by the Dissent

The dissent builds its analysis around Blake and a series of Court of Appeals and Appellate Division cases that stress the need for a fact-specific inquiry:

• Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280 (2003):
  • Provides the analytic framework: two-step showing (statutory violation and causation), and the correlative defense of sole proximate cause.
  • Footnote 8, which recognizes the presumption for unexplained collapses, also makes clear that this presumption can be rebutted with “a plausible view of the evidence” that there was no violation and the plaintiff was solely at fault.
• Narducci v Manhasset Bay Assoc., 96 NY2d 259 (2001):
  Reinforced that § 240(1) applies only to elevation-related risks and is not a general workplace safety statute.
• Robinson v East Med. Ctr., LP, 6 NY3d 550 (2006):
  Held that a worker who stood on the top cap of a six-foot stepladder—contrary to explicit instructions—could be found the sole proximate cause of his fall, precluding § 240(1) liability.
• Weininger v Hagedorn & Co., 91 NY2d 958 (1998):
  Found error in directing a verdict for a plaintiff who fell from an extension ladder; a reasonable jury could find plaintiff’s actions were the sole proximate cause.
• Cutaia v Board of Mgrs of the 160/170 Varick St. Condominium, 38 NY3d 1037 (2022):
  Recognized questions of fact as to whether a ladder failed to provide proper protection under the particular circumstances.
• Nazario v 222 Broadway, LLC, 28 NY3d 1054 (2016):
  Similarly, found factual issues regarding whether a ladder provided proper protection.
• Bland v Manocherian, 66 NY2d 452 (1985):
  Highlighted that determinations of proper protection under § 240(1) require examination of “the nature of the work” and “the conditions of the work site.”
• Yao Zong Wu v Zhen Jia Yang, 161 AD3d 813 (2d Dept 2018):
  Stated that “whether a particular safety device provided proper protection is generally a question of fact for a jury.”
• Spenard v Gregware Gen. Contr., 248 AD2d 868 (3d Dept 1998):
  Warned that a mere fall from a ladder that did not slip or collapse is insufficient, by itself, to show inadequate protection.
• Ball v Cascade Tissue Group.-N.Y., Inc., 36 AD3d 1187 (3d Dept 2007):
  Held that when the defendant presents some evidence that the device was adequate and that plaintiff’s conduct may be the sole proximate cause, summary judgment for the plaintiff must be denied.
• Dennis v Beltrone Constr. Co., 195 AD2d 688 (3d Dept 1993); Blair v Rosen-Michaels, Inc., 146 AD2d 863 (3d Dept 1989):
  Clarified that when a device visibly collapses, breaks, or malfunctions, its inadequacy can be determined as a matter of law because the “failure is manifest.”

The dissent uses these authorities to argue that:

• The adequacy of the ladder and the presence or absence of a statutory violation are typically jury questions.
• The presumption flowing from an unexplained fall is not irrebuttable; defendants’ expert evidence here is enough to create a fact question.

IV. Legal Reasoning and Doctrinal Significance

A. Majority’s Legal Reasoning

1. Prima Facie Case under § 240(1)

The majority applies the familiar § 240(1) summary judgment standard:

• Plaintiff must show:
  1. a violation of the statute—i.e., that defendants failed to furnish an adequate safety device properly constructed, placed, and operated, and
  2. that this failure was a proximate cause of the injury.
• Once established, defendants can defeat summary judgment only by showing either:
  • no statutory violation, and
  • that plaintiff’s conduct was the sole proximate cause of the accident.

On the facts, the majority finds the elements satisfied:

• Plaintiff was working at an elevated location (8–10 feet) affixing masking tape as part of a sign installation—a task clearly within § 240(1)’s scope (a covered construction/repair-related activity at elevation).
• The only safety device provided was a two-sided extendable step ladder.
• While on the ladder’s second rung from the top, straddling it and reaching to the right, plaintiff felt it wobble, then it “fell away from the building” suddenly, causing him to fall face-first to the sidewalk.
• He testified that he did not lose his balance and had no idea why the ladder moved.

The majority characterizes this scenario as an “unexplained fall of the ladder while plaintiff was using it to reach an elevated work area.” Under its prior decisions, that event alone—without a demonstrated defect—triggers the strong inference (or presumption) that the ladder did not provide proper protection. Relying on Barnhardt, Begeal, and Bennett, the court holds that plaintiff thereby met his prima facie burden.

2. The Presumption of Inadequacy and “Unrefuted Evidence”

Central to the majority’s approach is how it treats the “unrefuted evidence” threshold. In earlier Third Department cases, where the unrefuted proof showed that a ladder slipped, collapsed, or otherwise failed while in use, the court has held that the ladder’s inadequacy is not a question of fact.

In Nusbaum, the majority views the following as unrefuted:

• the ladder was set up, locked, and used in the ordinary way to reach the work area;
• the accident occurred when the ladder “wobbled” and “fell away from the building”; and
• there is no alternative, non-failure-based explanation supported by record evidence (beyond speculation) that would account for the ladder’s motion.

Thus, even though defendants submitted an expert affidavit opining misuse, the majority deems that affidavit insufficient to refute the basic fact: the ladder failed to support plaintiff while being used for its intended purpose. As in Dalaba, the majority reiterates:

“the adequacy of the ladder is not a question of fact when it slips or otherwise fails to perform its function of supporting the worker.”

This is a crucial doctrinal move: the court effectively treats a sudden, unexplained topple as a functional failure of the ladder for § 240(1) purposes, independent of any structural defect. Once that failure is shown, a defense expert’s alternative theories of misuse are insufficient, unless they can credibly transform the event into one in which the ladder did not fail but was instead toppled solely because of the worker’s independent conduct.

3. Rejecting “Sole Proximate Cause” and Treating Misuse as Comparative Negligence

Defendants contend that plaintiff’s own conduct was the sole proximate cause of the accident because he:

• was straddling the ladder,
• was standing near (or above) the maximum safe standing height, and
• was overreaching to the side.

The majority rejects this position based on how New York courts understand the “sole proximate cause” doctrine under § 240(1). While the opinion does not cite them expressly, it implicitly follows the lines of Blake, Robinson, and subsequent cases that require, for a sole proximate cause defense:

• the presence of an adequate safety device,
• that the worker knew it was available and was expected to use it,
• that the worker misused it or failed to use it for no good reason, and
• that this conduct was the only cause of the accident.

Here, however, the majority emphasizes:

• “Plaintiff had no choice as to the equipment to use to accomplish the task at this elevated height as he was supplied solely with this ladder and was directed to accomplish the task of taping off the wall while his coworker was absent and thus unavailable to secure the ladder.”
• His straddling and reaching occurred “in order to perform his work,” not as a gratuitous or unnecessary deviation from a safe, available method.
• Although the ladder had a label showing it could function as an extension ladder, plaintiff testified he had never used it that way; the majority finds that any speculation that an extension configuration would have been sufficient “is conclusory at best.”

Accordingly, plaintiff’s actions—however imprudent—do not satisfy the strict criteria for sole proximate cause. They go only to comparative negligence, which is not a defense to a § 240(1) claim once a statutory violation and causation have been shown.

4. Net Effect of the Majority’s Approach

The majority effectively:

• Classifies an unexplained ladder fall during ordinary use as a device failure, creating a powerful presumption of inadequacy.
• Deems expert assertions that the ladder was “proper” or that the worker misused it insufficient to create a triable issue about adequacy when no alternative adequate devices were provided and when there is no concrete, non-failure-based explanation for the fall.
• Treats worker conduct motivated by the need to accomplish the assigned task, in the absence of safer alternatives, as evidence of inadequate protection, not as grounds for a sole proximate cause defense.

Taken together, these moves strengthen a pro-worker, pro-summary-judgment reading of § 240(1) in ladder cases within the Third Department.

B. Dissent’s Legal Reasoning

1. Emphasis on Blake and Two-Step Liability

The dissent grounds its analysis in Blake’s two-part requirement:

1. There must be proof of a statutory violation—failure to furnish or erect adequate safety devices.
2. The violation must be a contributing cause of the fall.

In its view, the presumption arising from an unexplained ladder failure is only a starting point; it does not displace the defendant’s opportunity to show, through evidence:

• that the device was in fact adequate, and
• that the accident was caused solely by plaintiff’s improper use.

The dissent leans on Blake’s statement in footnote 8 that once the plaintiff makes a prima facie showing, the defendant can defeat summary judgment if “there is a plausible view of the evidence—enough to raise a fact question—that there was no statutory violation and that plaintiff’s own acts or omissions were the sole cause of the accident.”

2. Role of Defendants’ Expert and the Nature of the Dispute

Defendants’ expert (a civil engineer with OSHA certifications) opined that:

• The ladder was clearly labeled for dual use (A‑frame stepladder or extension ladder).
• The labels warned of a maximum standing level of 6'8" in stepladder mode, but plaintiff admitted he was about 10' off the ground.
• Industry training materials (American Ladder Institute) prohibited:
  • straddling the top of a stepladder, and
  • overreaching or leaning, which can “pull the ladder over sideways.”
• Given plaintiff’s admissions (he was straddling and reaching, knew the ladder could be used as an extension ladder), his misuse of the ladder was the sole proximate cause of the fall.

The dissent argues that, taken together with plaintiff’s own testimony that the ladder was on level ground, fully extended, locked, and had no observable defects, this expert proof creates a “plausible view of the evidence” that:

• the ladder did not malfunction or “fail” in the sense that § 240(1) contemplates; rather, it toppled because of misuse; and
• the statutory duty to furnish proper protection was not violated, or at least that whether it was violated remains a jury question.

Thus, the dissent sees a classic battle of experts on:

• whether the ladder was adequate for the work under the actual site conditions,
• whether additional stabilizing devices were required, and
• whether plaintiff’s misuse was the sole proximate cause.

Under conventional summary judgment principles, the dissent maintains, this kind of disputed expert testimony should be resolved by a factfinder, not as a matter of law.

3. Adequacy of the Safety Device as a Question of Fact

The dissent directly challenges the majority’s characterization of adequacy as a legal issue in this case:

• It recognizes that in some “extreme” cases—where “no protective device is furnished,” or where a ladder plainly “collapses, breaks down, or malfunctions”—courts may deem inadequacy a matter of law because the failure is manifest (Dennis, Blair).
• But it notes that this exception applies only where the inadequacy is uncontroverted; here, plaintiff’s and defendants’ experts conflict, and defendants have offered a theory that the ladder did not “collapse or malfunction,” but toppled solely due to misuse.
• Citing Yao Zong Wu, Beardslee, and others, the dissent underscores that “whether a particular safety device provided proper protection is generally a question of fact for a jury.”

In its view, the majority is prematurely transforming what should be a fact question (adequacy under the actual work conditions) into a question of law, contrary to both § 240(1) case law and the pattern jury instruction (NY PJI 3d 2:217).

4. Characterizing Plaintiff’s Conduct

The dissent also disputes the majority’s interpretation of plaintiff’s straddling and overreaching as dictated by the work:

• It notes that plaintiff testified he straddled the ladder because he had seen others do so, not because it was necessary to reach the area he was taping.
• For the dissent, this tends to show an unnecessary, unsafe method of performing the work, analogous to standing on the top cap in Robinson.
• This, in turn, supports a possible finding that plaintiff was the sole proximate cause, which must be reserved for the jury.

Thus, for the dissent, the manner of plaintiff’s work primarily informs the causation (sole proximate cause) question, not the legal adequacy of the ladder in the abstract.

C. Tension Between Majority and Dissent

The crux of the divide is how far the presumption of inadequacy from an unexplained ladder fall can go at the summary judgment stage:

• Majority:
  • An unexplained fall in the course of normal ladder use is treated as a functional failure of the device.
  • Unless defendants can show a non-failure cause that renders plaintiff the sole proximate cause (e.g., refusal to use an available, safer device), evidence of “misuse” that is itself part of performing the assigned work simply underscores inadequacy and, at most, comparative negligence.
  • Expert opinions that the ladder was “proper” or that other modes (e.g., extension configuration) might have been safer are speculative and insufficient to defeat summary judgment.
• Dissent:
  • The presumption is rebuttable; when defendants present expert evidence suggesting the ladder did not malfunction and was adequate if properly used, the adequacy and causation issues must go to a jury.
  • The very fact that plaintiff stood above a labeled safe height and used the ladder contrary to industry practice constitutes evidence of sole proximate cause that a jury could credit.
  • Court of Appeals decisions like Cutaia, Nazario, and Weininger caution against taking such disputes away from the factfinder.

This tension reflects a deeper debate about § 240(1): whether it should be applied in a strongly pro-worker, quasi-strict-liability fashion in device-failure cases, or whether the “sole proximate cause” doctrine and questions of adequacy should more consistently be reserved for the jury when credible defense evidence exists.

V. Impact and Practical Consequences

A. Impact on Future Ladder Cases in the Third Department

Within the Third Department, Nusbaum meaningfully strengthens plaintiffs’ position in ladder-fall litigation by:

• Confirming that an unexplained ladder fall while performing assigned elevated work triggers a strong presumption that the ladder was inadequate.
• Clarifying that attempts to characterize plaintiff’s work-positioning as “misuse” will often be treated as comparative negligence only—particularly where:
  • the worker had no choice of equipment, and
  • the allegedly improper stance or reach was a reasonable (if imperfect) attempt to perform the assigned task.
• Signaling that courts may disregard as speculative defense expert assertions that:
  • the ladder was adequate “on paper” or per manufacturer’s labels, or
  • an alternative configuration (such as extension mode) would have been safe but was not used.

Practically, plaintiffs’ counsel will likely:

• emphasize facts showing that the ladder fell without clear explanation and that the worker had limited equipment or assistance; and
• rely on Nusbaum and Barnhardt to argue that adequacy is no longer a triable issue once device failure is established.

Defense counsel, by contrast, will need to:

• develop stronger evidence that:
  • the worker had a safe alternative (or could easily have employed the same device safely), and
  • that the worker’s conduct was voluntary, unnecessary, and contrary to instructions or training—not compelled by the work or by the absence of safer options.
• consider documenting at the job level:
  • the availability of additional ladders or platforms,
  • training on ladder use, and
  • written safety rules that, if violated, can support a sole proximate cause defense.

B. Interdepartmental and Court of Appeals Dynamics

Nusbaum accentuates a subtle divergence between the Third Department and other departments:

• The Second Department has often framed ladder adequacy as a jury question (Yao Zong Wu), even in fall cases.
• The First Department similarly stresses fact-specific analysis in many ladder decisions.

The dissent’s extensive reliance on Blake, Cutaia, and Nazario suggests that, in its view, the Court of Appeals tends toward a more cautious approach to summary judgment in ladder cases. If Nusbaum or a similar case reaches the Court of Appeals, the Court may be asked to:

• clarify how far the presumption in footnote 8 of Blake reaches, and
• determine when expert proof of misuse and device adequacy suffices to create a triable issue of fact.

Thus, Nusbaum may serve as a vehicle for higher-court clarification of the balance between:

• § 240(1)’s protective, “absolute liability” character, and
• the continuing role of juries in allocating responsibility in ladder-fall accidents.

C. Implications for Contractual and Indemnity Litigation

While the opinion primarily addresses Labor Law § 240(1), its grant of partial summary judgment on liability has downstream effects:

• Once owner and tenant liability under § 240(1) is established as a matter of law, attention shifts to:
  • apportionment of responsibility among them and any contractors, and
  • the enforcement of contractual indemnification provisions (e.g., between Stratus and AJ Sign).
• In indemnity disputes, the factual finding that the device was inadequate and the work could not safely be performed with the equipment provided may influence:
  • whether upstream parties can seek full indemnity from lower-tier contractors or employers, and
  • whether any indemnity provisions violate General Obligations Law § 5‑322.1 if they purport to indemnify a party for its own active negligence.

VI. Complex Concepts Simplified

A. Labor Law § 240(1) (“Scaffold Law”)

Section 240(1) requires owners and contractors (and their agents) engaged in certain construction-related activities to provide workers with proper safety devices—like scaffolds, hoists, stays, ladders, slings, and ropes—when working at heights or facing gravity-related risks.

Key features:

• Nondelegable duty: Owners and contractors cannot escape responsibility by delegating safety obligations to someone else.
• Absolute liability: Once a violation is shown and that violation causes the injury, the defendant is liable even if it exercised some care. Comparative negligence is not a defense.

B. Elevation-Related Hazards

An “elevation-related hazard” typically involves:

• falls from a height (as here, a ladder fall), or
• objects falling due to the effects of gravity and striking a worker below.

Section 240(1) does not cover every workplace incident; the risk must flow from the difference in elevation.

C. Summary Judgment and Prima Facie Case

• Summary judgment: A procedural device used to resolve a claim without a trial when there is no genuine dispute of material fact and one party is entitled to judgment as a matter of law.
• Prima facie case: The moving party’s initial burden is to produce evidence sufficient, if uncontroverted, to establish each element of the claim.
• Once the moving party meets this burden, the nonmoving party must present evidence raising a genuine factual dispute.

D. Presumption of Device Inadequacy

When a ladder or scaffold collapses, slips, or “malfunctions” without an obvious explanation while being used in a normal manner for elevated work:

• Courts presume that the device was not adequate to provide proper protection.
• This stems from the commonsense notion that “sound scaffolds and ladders do not simply break apart” (Stewart v Ferguson, 164 NY 553 (1900); applied in Blake).
• This presumption can be rebutted if the defendant shows a credible, non-failure-based explanation—often that the worker’s misuse, in spite of available safe options, was the true cause.

E. Comparative Negligence vs. Sole Proximate Cause

• Comparative negligence: The worker may have been careless (e.g., standing too high on the ladder), but this does not reduce or bar recovery under § 240(1) once a statutory violation is established and is a contributing cause.
• Sole proximate cause: A much narrower concept. It applies where:
  • adequate safety devices were available,
  • the worker knew or should have known to use them,
  • the worker unreasonably chose not to use them or misused them, and
  • this choice is the only cause of the accident.

If the worker is the sole proximate cause, § 240(1) liability does not attach, even though the accident involves a fall from a height.

F. Adequacy of a Ladder and Expert Testimony

“Proper protection” under § 240(1) is not judged in the abstract but in light of:

• the specific task the worker was doing,
• the conditions at the worksite (e.g., space, surface, location), and
• the equipment provided versus the elevation risk involved.

Experts may opine on:

• whether the provided device met industry standards,
• whether additional devices (e.g., ladder stabilizers, harnesses) were required, and
• whether the worker’s method of using the device was safe or contrary to training.

At summary judgment, such expert opinions can:

• support a plaintiff’s prima facie case (by showing the device was inadequate), or
• support a defendant’s opposition (by showing adequacy and potential sole proximate cause).

The key is whether the expert’s opinion, viewed in the light most favorable to the nonmoving party, creates a reasonable factual dispute. The majority in Nusbaum views the defense expert’s opinion as too speculative to overcome the presumption of inadequacy; the dissent sees it as sufficient to warrant a trial.

VII. Conclusion

Nusbaum v. 1455 Washington Avenue LLC is an important Third Department decision that sharpens the contours of ladder-fall liability under Labor Law § 240(1). The majority:

• reaffirms a strong presumption that an unexplained ladder fall signifies inadequate protection,
• treats the adequacy of the ladder as a question of law where the device fails in use without a clear non-failure explanation, and
• confines defense arguments about worker “misuse” largely to comparative negligence, not a complete bar, where the worker had no safer equipment or assistance.

The dissent, by contrast, warns that this approach may overstep the boundaries drawn by Blake and later Court of Appeals decisions, which emphasize:

• the need to prove a statutory violation in addition to a fall from height, and
• the jury’s role in evaluating the adequacy of safety devices and the possibility that a worker’s actions were the sole proximate cause.

Going forward, Nusbaum will likely:

• encourage plaintiffs to seek summary judgment in unexplained ladder-fall cases in the Third Department,
• push defendants to develop more robust factual records on the availability and proper use of alternative safety devices, and
• serve as a focal point in the ongoing statewide dialogue over how tightly or liberally § 240(1) should be applied in ladder accidents.

At its core, the decision underscores the enduring tension in New York’s scaffold law jurisprudence: balancing robust worker protection from elevation-related risks against fair opportunities for owners and contractors to contest claims where misuse or worker conduct may be the primary cause of an accident. Nusbaum moves that balance, at least within the Third Department, perceptibly toward the worker in cases involving unexplained ladder falls.