Wissert v. Medline: Order-Picker Platform Falls Trigger Labor Law § 240(1) Fact Issues on “Repair” vs. “Maintenance” and Safety-Device Availability

1. Introduction

Case: Wissert v Medline Indus. Inc., 2026 NY Slip Op 01101 (App Div 3d Dept Feb. 26, 2026).
Parties: Plaintiff, Lisa S. Wissert, as administrator of the estate of William R. Wissert (decedent), sued Medline Industries Inc. (owner of the facility). Medline impleaded Pengate Handling Systems of New York, Inc. (decedent’s employer) for indemnification and contribution.
Accident: While servicing an “order picker” (forklift-like machine with a hydraulically raised/lowered standing platform), the platform—raised but allegedly unsecured—fell onto the decedent, causing fatal injuries.
Key issues: (i) whether the decedent’s activity was a covered “repair” (as opposed to routine maintenance) under Labor Law § 240(1); (ii) whether an appropriate elevation-safety device (e.g., a “safety stand”) was provided/required; (iii) whether the defense that the worker’s conduct was the sole proximate cause (or otherwise defeats liability) applies; and (iv) whether summary judgment was appropriate for either side.

2. Summary of the Opinion

The Third Department modified Supreme Court’s order. It held that summary judgment was improper for both sides on the Labor Law § 240(1) claim because the record presented triable issues of fact concerning: (1) whether the work was a “repair” prompted by an “isolated and unexpected event” versus routine maintenance; (2) whether proper safety devices were provided (including whether a safety stand was required by the equipment manual and whether a chain was adequate/available); and (3) whether the decedent was engaged in covered work at the moment of injury.

Because the wrongful death dismissal was predicated on the § 240(1) dismissal, the court reinstated the wrongful death claim. It also reversed the dismissal of Medline’s third-party complaint against Pengate, which Supreme Court had deemed academic after dismissing the main action.

3. Analysis

3.1. Precedents Cited (and How They Shaped the Decision)

  • Nusbaum v 1455 Wash. Ave., LLC. (240 AD3d 1113 [3d Dept 2025])
    Cited for the procedural point that, where the record contains competing proofs on core § 240(1) elements, summary judgment may be inappropriate for either party. The court uses it as a template for denying dispositive relief when the factual disputes are material.
  • Ross v Curtis-Palmer Hydro-Elec. Co. (81 NY2d 494 [1993])
    Supplies the foundational framing: § 240(1) targets “special hazards” of gravity-related accidents (falls from heights or being struck by falling objects that were improperly hoisted or inadequately secured). This supports treating the collapsing platform as the kind of elevation hazard the statute addresses.
  • Rocovich v Consolidated Edison Co. (78 NY2d 509 [1991])
    Reinforces that § 240(1) must be construed “as liberally as may be” to accomplish its protective purpose. The Third Department’s reluctance to narrow the statute at summary judgment—particularly on “work” and “repair” classification—tracks that interpretive instruction.
  • Breslin v Access Auto Sales & Serv., LLC (239 AD3d 1119 [3d Dept 2025])
    Provides the Third Department’s contemporary articulation: owners/contractors must provide properly constructed/placed/operated elevation-related devices for workers engaged in “repairing” (among other covered tasks), and liability attaches when failures proximately cause injury. The court uses Breslin to anchor both the scope of protection and the summary-judgment framework.
  • Alexander v Hart (64 AD3d 940 [3d Dept 2009]) and Markou v Sano-Rubin Constr. Co., Inc. (182 AD3d 674 [3d Dept 2020])
    These cases supply the doctrinal distinction: “repairing” is different from routine maintenance, which generally involves replacement due to ordinary wear and tear. The court invokes them to show why classification often depends on granular facts about why the component failed and what the work entailed.
  • Eherts v Shoprite Supermarkets, Inc. (199 AD3d 1270 [3d Dept 2021]) and Pakenham v Westmere Realty, LLC (58 AD3d 986 [3d Dept 2009])
    These authorities emphasize that work occasioned by an “isolated and unexpected event” can constitute a “repair” under § 240(1). Pakenham is also cited for the proposition that the maintenance/repair line is frequently a “close, fact-driven issue,” which directly supports denying summary judgment here.
  • Biaca-Neto v Boston Rd. II Hous. Dev. Fund Corp. (34 NY3d 1166 [2020]) and Burgos v Darden Rests., Inc. (234 AD3d 1037 [3d Dept 2025])
    These cases state the well-known four-part framework precluding § 240(1) liability when the worker’s own choices are the sole cause: adequate devices were available; the worker knew they were available and expected to use them; the worker chose not to for no good reason; and the injury would not have occurred otherwise. The Third Department uses these authorities to explain why disputed evidence about a safety stand versus a chain (and their availability/adequacy) creates fact issues.
  • Hawver v Steele (204 AD3d 1125 [3d Dept 2022])
    Cited alongside other Third Department decisions denying summary judgment where § 240(1) fact disputes persist, reinforcing that the court’s approach here is consistent with its recent practice.
  • Jiron v China Buddhist Assn. (266 AD2d 347 [2d Dept 1999])
    Cited in a footnote to confirm that being struck by a falling object (here, the descending platform) can be a classic gravity-related § 240(1) accident. It shores up the premise that the mechanism of injury fits the statute’s elevation-risk paradigm.

3.2. Legal Reasoning

A. The court treated the platform collapse as a paradigmatic gravity-related hazard

The court noted that the parties did not seriously contest that a raised platform falling onto a worker is the type of elevation-related accident § 240(1) targets. By referencing Ross v Curtis-Palmer Hydro-Elec. Co. and Jiron v China Buddhist Assn., the decision situates the accident within the statute’s core: a load/platform that should have been secured against gravity.

B. “Repair” versus routine maintenance was not resolvable on summary judgment

The record contained competing indicators:

  • Plaintiff’s proof (coworker Hill and engineer Zemeck) described a leaking lift cylinder requiring repacking/seals, characterized as outside scheduled maintenance and arising from an “isolated event,” aligning with Eherts v Shoprite Supermarkets, Inc..
  • Defendant pointed to a “Scheduled Maintenance Agreement” that listed hydraulic leaks, suggesting the work fell within routine service.
  • Yet the agreement also contemplated “repairs” at current rates, and the agreement’s structure (scheduled intervals plus “additional repairs”) cut against any definitive conclusion.

Applying Pakenham v Westmere Realty, LLC, the court emphasized that drawing the maintenance/repair boundary is “frequently a close, fact-driven issue.” That characterization was decisive: it justified sending the classification question to the factfinder rather than resolving it as a matter of law.

C. “Was he working at the time?”—the court rejected Supreme Court’s categorical view

Supreme Court’s dismissal relied on a finding that the decedent was not engaged in covered work when the accident occurred. The Third Department found the record did not support that conclusion because Hill testified the decedent was removing (or attempting to remove) a snap ring—a step Hill stated was part of the repacking procedure—seconds before the platform fell. That testimony created a triable issue on whether the decedent was engaged in the repair process despite the parts-kit problem.

D. Adequacy and availability of safety devices presented competing expert and factual proof

The court identified a central dispute: whether the proper protective device was a safety stand referenced in the picker’s maintenance manual (plaintiff’s position) or whether a chain was an adequate and available alternative (defendant/Pengate’s position).

  • Plaintiff’s engineer opined a safety stand was required and not provided/made known, and further asserted a chain could not be properly rigged to prevent the fall.
  • Pengate’s engineer opined a chain would have prevented the accident and was readily available.
  • The manual itself supported plaintiff on when a safety stand should be used (platform elevated for procedure), and undercut the chain-as-substitute theory by describing chain use to “stabilize the mast,” not the scenario at issue.

Because § 240(1) summary judgment often turns on whether an appropriate device was required, available, and used (and whether any non-use meets the Biaca-Neto v Boston Rd. II Hous. Dev. Fund Corp. criteria), these conflicts were material and dispositive against summary judgment for either party.

E. Procedural consequence: wrongful death and third-party claims

The wrongful death claim had been dismissed solely because the § 240(1) claim was dismissed. Once § 240(1) was reinstated for trial, the predicate for dismissal disappeared. Likewise, the third-party complaint was dismissed as “academic” only because the main action was dismissed; reinstatement of liability exposure revived the third-party action as well.

3.3. Impact

  • Stronger emphasis on equipment manuals as evidence of “proper protection.” The opinion treats the picker’s manual warning about using a safety stand as significant proof on what “proper protection” required, making manuals a focal point in § 240(1) litigation involving industrial equipment.
  • Summary judgment will be difficult where maintenance/repair classification depends on context. By reaffirming that the distinction is “close” and “fact-driven” (per Pakenham v Westmere Realty, LLC), the decision signals that parties should expect trials where contracts label work as “maintenance” but facts suggest “additional repairs” or an unexpected failure.
  • Sole-proximate-cause defenses will hinge on proof of availability and adequacy—not mere theoretical alternatives. Competing accounts of whether a chain was available, expected, and adequate (and whether a safety stand was required) illustrate that defendants must show more than “something could have been used”; they must satisfy the Biaca-Neto v Boston Rd. II Hous. Dev. Fund Corp. elements without factual dispute.
  • Industrial “platform drop” accidents fit comfortably within § 240(1). The decision reinforces that a descending platform striking a worker is a classic gravity-related event, limiting attempts to reframe such incidents as non-elevation hazards.

4. Complex Concepts Simplified

  • Labor Law § 240(1) (“Scaffold Law”): A New York statute requiring owners/contractors to provide specific safety devices for elevation-related risks. If the required protection is missing or inadequate and that failure causes injury, liability can follow.
  • Gravity-related hazard: Injuries caused by falling from height or being hit by something that fell because it was not properly secured (here, a raised platform dropping).
  • Repair vs. routine maintenance: Routine maintenance is regular upkeep due to expected wear and tear. A repair is often work responding to a malfunction or unexpected breakdown. The classification matters because § 240(1) applies to “repairing” but not necessarily to routine maintenance.
  • Summary judgment: A pretrial ruling granted only when there is no genuine dispute of material fact. If key facts are contested (what work was being done; what safety device was required/available), the case proceeds to trial.
  • Sole proximate cause (worker-conduct defense): Even in § 240(1) cases, liability can be avoided if the worker’s unreasonable choice to ignore available, adequate safety devices—despite knowing they were expected to use them—was the only cause of the accident (as articulated in Biaca-Neto v Boston Rd. II Hous. Dev. Fund Corp.).

5. Conclusion

Wissert v Medline Indus. Inc. reinforces a practical rule for § 240(1) litigation involving industrial equipment: where the record supports competing narratives about (i) whether the task is a “repair” or routine maintenance and (ii) whether the proper elevation-safety device was required, available, and adequate (especially in light of an equipment manual), summary judgment is inappropriate for either side. The decision reinstates § 240(1) and wrongful death claims and revives the third-party action, underscoring that these disputes—often driven by contracts, manuals, and expert testimony—frequently must be resolved by a factfinder.