Summary: Joe Mendoza v. Highpoint Associates, IX, LLC, 83 A.D.3d 1, 919 N.Y.S.2d 129 (1st Dept. 2011) (Mar. 8, 2011). Prior to the plaintiff sustaining injury from a fall on a roof, he was doing a “walk-through” on the roof assessing what repairs were necessary and what materials would be necessary. The court noted that the defendant commended the plaintiff to inspect the roof despite its apparent knowledge that the roof was flimsy and plaintiff was not adequately protected against the dangers of the job. The factors supported a Labor Law §240(1) claim and the court found there were issues of fact to preclude defendant’s summary judgment motion. Specifically, the majority of the court, in a divided decision, held that plaintiff raised triable issues of fact as to whether the condition of the roof exposed the plaintiff to a foreseeable risk of injury from an elevation related hazard. The majority dismissed the plaintiff’s §241(6) cause of action.
Practice Note: The dissent held that the defendant had not established that the plaintiff cannot maintain a §240(1) claim.