Veliu v. Verizon N.Y. Inc.

Veliu v Verizon N.Y. Inc.

2026 NY Slip Op 05374 September 22, 2026 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. Imberson Veliu, Plaintiff-Respondent,

v

Verizon New York Inc., Defendant-Appellant.

Decided and Entered: September 22, 2026

Index No. 150918/23|Appeal No. 6735|Case No. 2025-02960|

Before: Webber, J.P., Gesmer, Rodriguez, Pitt-Burke, O'Neill Levy, JJ. Cipriani & Werner, P.C., Huntington (Sean R. Hutchinson of counsel), for appellant. Pollack, Pollack, Isaac & DeCicco, LLP, New York (Lori E. Parkman of counsel), for respondent. [*1]

Order, Supreme Court, New York County (Lisa S. Headley, J.), entered April 14, 2025, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for summary judgment as to liability on his Labor Law § 240(1) claim, reversed, on the law, without costs, and the motion denied.

Plaintiff alleges that he sustained injuries when working on a construction site as a foreman and "pitman" for nonparty De-Bar Company Construction Corporation. Specifically, he states that he was assigned to work as the pitman and was responsible for working in the trenches. Plaintiff averred that, as pitman, he was required to be positioned inside the trench and close to the backhoe while directing the backhoe operator, because the backhoe operator does not have an unobstructed view of the area directly under the backhoe's bucket. Plaintiff stated that at the time of the accident he was standing in an area of the trench that was three to four feet deep when a large piece of concretecurbthat was being hoisted several feet into the air rolled out of the backhoe's bucket and struck plaintiff's leg. Supreme Court granted plaintiff's motion for summary judgment on liability on his Labor Law § 240(1) claim, noting that, although there were "two conflicting versions of how the accident occurred, under either version, safety devices were either absent or inadequate to protect the plaintiff."

We find that plaintiff was not entitled to summary judgment on the issue of liability on his Labor Law § 240(1) claim for two reasons. First, there are issues of fact as to how his injuries occurred. Plaintiff alleges that an object slid off a backhoe and fell on him. However, Michael Castellano, oneof plaintiff's coworkers, submitted an affidavit in which he stated that he witnessed the accident, and saw that "a piece of concrete curb overlay became detached from the underlying curb and sidewalk as part of the excavation work taking place. The curb slid into the trench where plaintiff was standing," striking plaintiff on the left leg. The conflicting accounts raise a credibility determination which is the province of the factfinder (see Valle v Port Auth. of N.Y. & N.J., 189 AD3d 594, 595 [1st Dept 2020]). [*2]

Second, even if it were clear that plaintiff's injury occurred as defendant alleges, there are also issues of fact as to whether plaintiff was the sole proximate cause of the accident because he knew or should have known to use an available safety device â​​ namely, lumber braces to brace the sides of the trench (see Anderson v MSG Holdings, L.P.,

146 AD3d 401, 404 [1st Dept 2017], lv dismissed 29 NY3d 1100 [2017]). "[A]n injured worker's failure to use safety devices will not constitute the sole proximate cause of the accident unless the worker knew that he or she 'was expected to use them but for no good reason chose not to do so' " (Anderson, 146 AD3d at 404, quoting Gallagher v New York Post, 14 NY3d 83, 88 [2010] ["Liability under section 240(1) does not attach when the safety devices that plaintiff alleges were absent were readily available at the work site . . . and plaintiff knew he was expected to use them but for no good reason chose not to do so, causing an accident. In such cases, plaintiff's own negligence is the sole proximate cause of his injury"]).

In opposition to plaintiff's motion for summary judgment, defendant submits an affidavit by Jason Baratta, the co-owner of De-Bar. He states that plaintiff, as pitman, was responsible for pit safety, and had instructed his coworkers to brace portions of the trench with lumber braces provided by De-Bar. Baratta further swore that on the day of the accident plaintiff was aware that there were additional lumber braces available that could have been used to brace the portion of the trench near the concrete curb overlay. Although plaintiff submitted a reply affidavit, he did not contradict these statements. Therefore, even if we were to accept defendant's version of how the accident occurred, there remain issues of fact as to whether plaintiff knew or should have known that the area of the trench where the accident occurred also needed to be braced and that lumber was available that he could have directed workers to use to brace the trench.

1

Therefore, Iuculano v City of New York (214 AD3d 535 [1st Dept 2023]), on which the dissent relies, is distinguishable because, in that case, both of the possible versions of the accident occurred because of the failure of a safety device. That is not necessarily true in this case.

We concur with our dissenting colleagues in rejecting defendant's claim that plaintiff's position as foreman and

"pitman" would require that plaintiff's motion be denied if the accident had occurred as defendant claims (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500 [1993]; Collins v W. 13th St. Owners Corp., 63 AD3d 621, 622 [1st Dept 2009]).

[*3]

Contrary to defendant's argument, Labor Law § 240(1) may apply to a falling object due to a trench collapse caused by improper bracing or shoring (see Rivas v Seward Park Hous. Corp., 219 AD3d 59, 64-65 [1st Dept 2023]). Here, the trench depth of at least two feet created an elevation differential that was not de minimis (see id. at 64). All concur except Rodriguez and Pitt Burke, JJ., who dissent in a memorandum by Rodriguez J. as follows:

Rodriguez, J. (Dissenting)

Supreme Court correctly concluded that under both versions of the accident a violation of Labor Law § 240(1) was a proximate cause of plaintiff's injuries (see Iuculano v City of New York, 214 AD3d 535, 535-536 [1st Dept 2023]). Accordingly, the award of summary judgment to plaintiff should be affirmed.

Defendant Verizon New York Inc. hired plaintiff's employer, nonparty De-Bar Contracting Company, to install underground PVC pipes for Verizon's cables. At his deposition, plaintiff stated that during excavation of the street his coworker used a backhoe bucket to lift a curb overlay out of the trench. When the curb was several feet in the air, it rolled off the bucket and struck plaintiff as he stood in the excavated pit.

Plaintiff moved for summary judgment, relying on his deposition testimony to establish prima facie entitlement to judgment as a matter of law. In opposition, defendant submitted affidavits from plaintiff's coworker Michael Castellano and Jason Baratta, a co-owner of De-Bar. Castellano was operating the backhoe at the time of the accident and disputed plaintiff's account. In particular, Castellano stated that the backhoe did not "hoist any unsecured piece of concrete curb material into the air" and that no such curb rolled off his backhoe bucket. Rather, the accident occurred "when a piece of concrete curb overlay became detached from the underlying curb and sidewalk as part of the excavation work taking place." According to Castellano, although the trench was braced in other places, the trench lacked bracing in the area where the curb overlay became detached.

Baratta did not witness the accident, but he was the highest-ranking member of De-Bar on site that day. Baratta described plaintiff as the "job foreman and pit man." As a pit man, plaintiff would stand in the trench and direct the backhoe operator. The trench was anywhere from two- to four-feet deep. According to Baratta, plaintiff, as a pit man, was responsible for pit safety, including instructing workers to use lumber to brace portions of the trench. Baratta also stated that "an adequate supply of lumber for bracing the trench" was available on site. [*4]

Labor Law § 240(1) requires that certain workers be properly protected from gravity-related risks (see e.g. Barreto v Metropolitan Transp. Auth., 25 NY3d 426, 433 [2015]). As relevant here, the statute "imposes upon owners, contractors and their agents a nondelegable duty that renders them liable regardless of whether they supervise or control the work" (id., citing Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39 [2004]). In its application, the section

"should be 'construed as liberally as may be for the accomplishment of [its] purpose' " (Garcia v Neighborhood Partnership Hous. Dev. Fund Co., Inc., 113 AD3d 494, 495 [1st Dept 2014], quoting Zimmer v Chemung County Performing Arts, 65 NY2d 513, 521 [1985]; see O'Brien v Port Auth. of N.Y. & N.J., 29 NY3d 27, 33 [2017]). Additionally, "where an accident is caused by a violation of the statute, the plaintiff's own negligence does not furnish a defense" (Cahill, 4 NY3d at 39; see Encarnacion v 3361 Third Ave. Hous. Dev. Fund Corp., 176 AD3d 627, 629 [1st Dept

2019]).

The conflicting accounts of the accident from plaintiff and defendant do not present a triable issue of fact because both versions include a violation of Labor Law § 240(1) as a proximate cause of plaintiff's injuries (see Iuculano, 214 AD3d at 535-536; see also Cashbamba v 1056 Bedford LLC, 168 AD3d 638, 639 [1st Dept 2019]; John v Baharestani, 281 AD2d 114, 118 [1st Dept 2001]). Plaintiff's account, for its part, is a basic statutory violation resulting from failure to properly secure a hoisted object (see Gallegos v Bridge Land Vestry, LLC, 188 AD3d 566, 567 [1st Dept 2020]; see also Valarezo v HP Jamsta Hous. Dev. Fund Co. Inc., 246 AD3d 678, 678-679 [1st Dept 2026]).

Likewise, Castellano's version involves a statutory violation as a proximate cause. As the majority acknowledges, Labor Law § 240(1) may apply to a falling object due to a trench collapse caused by absent or improper bracing (see Rivas v Seward Park Hous. Corp., 219 AD3d 59, 64-65 [1st Dept 2023]). Further, the trench depth of at least two feet created an elevation differential that was not de minimis, especially considering that the concrete curb overlay, which weighed between 100 to 150 pounds, generated sufficient force to fracture plaintiff's ankle (see Runner v New York Stock Exch., Inc., 13 NY3d 599, 605 [2009]; Rivas, 219 AD3d at 64). The lack of adequately constructed and placed bracing thus constituted an absence of proper protection and a violation of the statute (see Iucalano, 214 AD3d at 535-536 [summary judgment properly awarded to plaintiff where differing versions involved either nonexistent or inadequate safety devices]; see also Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 285 [2003] ["proper protection" is "the heart of the statute"]).

[*5]

There are otherwise no issues of fact preventing summary judgment. Although an injured worker's failure to use safety

2