Unsecured Scaffold-Stored Blocks Can Establish Labor Law § 240(1) Liability to Workers Below

1. Introduction

In Hernandez v Board of Mgrs. of the NOMA Condominium, the Second Department affirmed summary judgment establishing the defendants’ liability under Labor Law § 240(1) for injuries caused by concrete blocks falling from a scaffold onto a worker below. The decision illustrates that a worker need not personally fall from a height to receive the statute’s protection: an inadequately secured object falling from an elevated work area can present the relevant elevation-related risk.

The opinion also addresses a distinct question: whether defendants facing statutory liability may obtain summary judgment shifting responsibility to the injured worker’s employer. The court held that the defendants had not supplied the necessary proof for their insurance-procurement and common-law indemnification claims. Their liability to the worker did not, by itself, establish their entitlement to recover against the employer.

Rather than announcing a new statutory test, the decision applies established principles to scaffold-stored masonry and reinforces the separate evidentiary burdens governing direct liability and third-party recovery.

Background and parties

Ever Hernandez worked as a mason for GMJ Contracting Corp. According to his account, in October 2017 he was standing on the ground and passing concrete blocks by hand to a coworker on a scaffold. A stack of three concrete blocks fell from a corner of the scaffold, striking his head, back, and neck.

Hernandez brought two personal-injury actions, later consolidated, against entities that owned, developed, or managed the construction site. The appealing defendants were Board of Managers of the NOMA Condominium, NOMA Condominium, Pater Realty Company, Leeding Builders Group, LLC, 846 6th Ave Venture, LLC, Alchemy 6th Avenue, LLC, and Alchemy Properties, Inc. They commenced a third-party action against GMJ.

Questions presented

• Whether the falling-block accident established liability under Labor Law § 240(1).
• Whether the defendants were entitled to dismissal of the Labor Law § 241(6) claim based on unsafe material placement near a scaffold edge.
• Whether the defendants established entitlement to summary judgment against GMJ for failure to procure insurance, common-law indemnification, and contribution.

2. Summary of the Opinion

The Appellate Division unanimously affirmed the Supreme Court’s June 24, 2024 order insofar as appealed from, with one bill of costs.

These outcomes have different procedural meanings. Liability under § 240(1) was resolved in Hernandez’s favor, but damages were not determined. The § 241(6) claim survived dismissal without a finding that its alleged regulatory violation had been established. Likewise, denial of the defendants’ third-party motions did not finally determine that GMJ could never be liable.

3. Analysis: Precedents Cited

The opinion rests on an established line of elevation-risk, construction-safety, and summary-judgment decisions. The following discussion identifies the role each cited authority plays without attributing factual holdings to those cases beyond what the supplied opinion states.

A. The nondelegable duty under Labor Law § 240(1)

Ennis v Noble Constr. Group, LLC, 207 AD3d 703, 704, supplies the proposition that owners, general contractors, and their agents have a nondelegable duty to provide safety devices necessary to protect workers from elevation-related risks. The court also cites McCarthy v Turner Constr., Inc., 17 NY3d 369, 374, for that foundation.

These authorities establish why statutory responsibility cannot simply be transferred to the subcontractor performing the work. They frame the defendants’ duty to Hernandez independently of any separate right the defendants might have to reimbursement from GMJ.

B. Statutory violation and proximate causation

Buzzetta v NYU Hosps. Ctr., 241 AD3d 628, 629, quoting Lochan v H & H Sons Home Improvement, Inc., 216 AD3d 630, 632, provides the plaintiff’s two-part burden: establish a violation of § 240(1) and establish that the violation proximately caused the injuries.

These cases prevent the analysis from becoming an automatic rule that every construction-site accident involving gravity creates liability. Hernandez needed to connect the accident to inadequate statutory protection.

C. The elevation differential and falling-object requirement

Davila v City of New York, 232 AD3d 580, 582, quoting Runner v New York Stock Exch., Inc., 13 NY3d 599, 603, identifies the decisive inquiry: whether the injuries directly resulted from inadequate protection against a risk arising from a “physically significant elevation differential.”

This formulation directs attention to the source of the danger, rather than merely the worker’s location. Hernandez’s position on the ground did not remove him from the statute’s protection because the alleged danger came from blocks above him.

Castano v Algonquin Gas Transmission, LLC, 213 AD3d 905, 907, further specifies that the object must have been undergoing hoisting or securing, or must have required securing for the undertaking. This authority supplies the necessary connection between the falling object and the work-related need for protective measures. Falling alone is not enough.

D. Application to the accident and the sole-proximate-cause defense

The court cites Escobar v Safi, 150 AD3d 1081, 1083, and Cortes v Jing Jeng Hang, 143 AD3d 854, 855, in concluding that Hernandez established both inadequate safety devices and causation. These authorities support the application of § 240(1), rather than merely its abstract governing standard.

Gonzalez v Madison Sixty, LLC, 216 AD3d 1141, 1143, and Barrios v 19-19 24th Ave. Co., LLC, 169 AD3d 747, 748-749, support the conclusion that the defendants failed to raise a factual issue concerning either the absence of a statutory violation or Hernandez’s conduct as the sole proximate cause.

The opinion does not describe the particular evidence underlying that defense. Its holding is therefore best understood as an evidentiary determination on this record, not as a comprehensive rejection of every possible worker-conduct defense in falling-object litigation.

E. Labor Law § 241(6) and the Industrial Code

Guaman v 178 Ct. St., LLC, 200 AD3d 655, 657, establishes the nondelegable duty to provide reasonable and adequate protection to construction workers. Quoting Aragona v State of New York, 147 AD3d 808, 809, it also identifies the need to prove an applicable Industrial Code violation that proximately caused the injury.

Ginter v Flushing Terrace, LLC, 121 AD3d 840, 844, supports the conclusion that factual disputes concerning 12 NYCRR 23-2.1(a)(2) and causation precluded dismissal. These authorities explain why the same accident could produce established liability under § 240(1), yet leave the separate § 241(6) theory unresolved.

F. Proof of failure to procure insurance

Breland-Marrow v RXR Realty, LLC, 208 AD3d 627, 629, quoting Rodriguez v Savoy Boro Park Assoc. Ltd. Partnership, 304 AD2d 738, 739, states the governing burden: the claimant must establish both a contractual obligation to obtain additional-insured coverage and noncompliance with that obligation.

The court cites Crutch v 421 Kent Dev., LLC, 192 AD3d 982, 984, together with Rodriguez v Savoy Boro Park Assoc. Ltd. Partnership, in finding that the defendants failed to prove GMJ’s noncompliance. A contractual insurance requirement, standing alone, does not establish its breach.

Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853, supplies the procedural consequence: a movant’s failure to establish an initial entitlement to summary judgment requires denial regardless of the opposing papers’ sufficiency.

G. Common-law indemnification and supervision

Lojano v Soiefer Bros. Realty Corp., 187 AD3d 1160, 1163-1164, and Perri v Gilbert Johnson Enters., Ltd., 14 AD3d 681, 685, support denial of the common-law indemnification motion because the defendants did not establish GMJ’s exclusive supervision and control of the work site.

Mendelsohn v Goodman, 67 AD3d 753, 754, reinforces that this initial evidentiary failure justified denial without evaluating whether the opposition was sufficient. Together, these authorities demonstrate that statutory liability and entitlement to indemnification require separate analyses.

4. Analysis: Legal Reasoning

A. Ground-level work can involve an elevation-related hazard

The court’s analysis focuses on the elevated blocks, not on whether Hernandez himself was working at height. Blocks stacked on a scaffold above a worker can create a gravity-related danger requiring statutory protection.

Applying the cited falling-object framework, the court determined that Hernandez established a failure to provide adequate safety devices and a causal connection to his injuries. The defendants did not produce evidence sufficient to require a trial on those issues.

The opinion does not identify a particular protective device that should have been installed or specify the scaffold’s height. It should therefore not be read as prescribing a universal device for masonry work or eliminating the requirement to establish a qualifying elevation risk.

B. A nondelegable duty is not automatic liability

“Nondelegable” means the responsible statutory parties cannot avoid their duty merely by assigning work to another contractor. It does not dispense with proof of a violation and causation.

Those requirements were satisfied here. The defendants’ attempt to raise Hernandez’s conduct as the sole proximate cause failed because it did not create a triable factual issue. Once the court upheld Hernandez’s affirmative showing, the defendants’ request to dismiss the same § 240(1) claim necessarily failed as well.

C. The Industrial Code claim required a separate inquiry

Hernandez’s § 241(6) claim relied, among other provisions, on 12 NYCRR 23-2.1(a)(2), which states:

“Material and equipment shall not be placed or stored so close to any edge of a floor, platform or scaffold as to endanger any person beneath such edge.”

The alleged placement of three blocks at a scaffold corner directly implicated that rule. Nevertheless, the court found factual questions about both a violation and its causal role. Accordingly, it preserved the claim rather than awarding Hernandez judgment on it.

This distinction matters: establishing a failure of elevation-related protection under § 240(1) does not necessarily resolve every element of a claim based on a particular Industrial Code provision.

D. Insurance procurement required proof of contractual noncompliance

The defendants needed affirmative evidence that GMJ failed to obtain the insurance required by the subcontract. They did not establish that proposition.

The ruling does not affirmatively determine that GMJ complied, identify the insurance actually purchased, or resolve an insurer’s coverage obligations. It holds only that the defendants did not prove the contractual breach necessary for summary judgment. Procuring insurance and determining whether an insurer must cover a particular claim are related but distinct questions.

E. Indemnification required independent proof concerning control

The defendants’ liability to Hernandez did not automatically entitle them to reimbursement from GMJ. On this motion, the court found their proof deficient because they had not demonstrated GMJ’s exclusive supervision and control of the work site.

GMJ’s status as Hernandez’s employer was therefore insufficient to secure the requested judgment. The opinion’s reference to exclusive control should be understood in the context of the defendants’ evidentiary showing, rather than converted into an exhaustive statement of every possible indemnification scenario.

F. The contribution ruling has limited explanatory value

The affirmance also leaves intact the denial of summary judgment on contribution. However, the opinion does not separately explain that result. Its closing rejection of the defendants’ remaining contention does not support attributing a new substantive contribution rule to the decision.

5. Potential Impact

Falling-object litigation

The decision supports § 240(1) claims by ground-level workers injured by inadequately secured materials above them. Future litigants will likely focus on whether the materials required securing for the undertaking, whether an elevation differential was physically significant, and whether inadequate protection caused the accident.

Its reach remains fact-dependent. It does not establish that every object dropped from a scaffold triggers liability.

Construction-site material placement

The § 241(6) ruling highlights the legal significance of storing or placing materials near scaffold edges. Evidence about the location of materials, the position of workers below, and the relationship between placement and injury may determine whether claims under 12 NYCRR 23-2.1(a)(2) survive dismissal.

Third-party practice and risk allocation

Owners, contractors, and other defendants should not assume that statutory liability establishes an entitlement to indemnification or damages for failure to procure insurance. Each claim requires its own supporting record.

For insurance-procurement claims, the relevant comparison is between the contractual requirements and evidence of the insurance obtained. For indemnification, the evidence must address the supervision and control relevant to the asserted right of recovery.

Summary-judgment strategy

The opinion repeatedly emphasizes the moving party’s initial burden. A deficient motion cannot succeed merely because the opposition is weak. This principle is particularly important where multiple claims arising from one accident involve different legal elements and different evidence.

6. Complex Concepts Simplified

Summary judgment

A decision without trial on an issue for which the evidence leaves no material factual dispute.

Prima facie showing

The moving party’s initial submission of evidence sufficient to establish entitlement to the requested judgment unless effectively disputed.

Nondelegable duty

A legal responsibility that a party cannot escape simply by hiring someone else to perform the work.

Proximate cause

A sufficiently direct causal connection between the legal violation and the injury.

Sole proximate cause

A contention that the worker’s own conduct, rather than a statutory safety failure, was the only legally operative cause of the accident.

Physically significant elevation differential

A height difference that creates the gravity-related danger relevant to the injury. The worker need not personally fall.

Common-law indemnification

A claim seeking to shift an entire loss to another party under applicable common-law principles.

Contribution

A claim seeking an appropriate share of a loss from another party rather than shifting the entire loss.

Additional insured

A person or entity included as an insured under another party’s insurance policy, subject to the policy’s terms.

7. Conclusion

Hernandez confirms that inadequately protected ground-level workers may recover under Labor Law § 240(1) when scaffold-stored materials present a qualifying falling-object hazard. It also preserves a separate Industrial Code claim where material-placement and causation questions remain unresolved.

Equally important, the decision separates liability to the injured worker from recovery against the employer. Defendants seeking indemnification or damages for failure to procure insurance must independently prove those claims. The opinion’s broader significance lies in that combination: established elevation-risk protection coupled with disciplined, claim-specific summary-judgment requirements.