New York Office Secures Appellate Win in Labor Law 240(1) Fall in Basement Accident Case

New York, N.Y. (March 14, 2023) New York Appellate Partner Nicholas P. Hurzeler and Managing Partner Gregory S. Katz recently prevailed when the New York Appellate Division, Second Department, affirmed the dismissal of a Labor Law 240(1) claim involving an accident that occurred in the basement of a house under construction. Balfe v. Graham, ___ AD3d ___ (2d Dept. 2023), decided March 8, 2023.

In this matter, the plaintiff was installing ductwork in the basement of a house that had been stripped down to its foundation when he stepped backwards into an open hole that had been dug out of a concrete floor to accommodate the installation of an ejector pump. The lower court dismissed the plaintiff’s claim based on Labor Law 240(1), and he appealed. The plaintiff argued that he fell into an unprotected opening that should have been covered or barricaded. He further claimed that the accident qualified as a typical “falling worker” case within the scope of Labor Law 240(1), citing the depth of the hole needed to accommodate the ejector pump, and the size of the pump. Under the case law, a worker who falls into an uncovered opening on a construction site will typically be covered by Labor Law 240(1).

Mr. Hurzeler argued the accident was not covered by the statute. In particular, the hole was less than 18 inches at the time of the accident, according to the witness testimony, because the cutout for the pump had not been dug yet, only the general outline. Although the hole would eventually be several feet deep in order to accommodate the pump, it was not that deep at the time of the accident, according to the uniform testimony of several witnesses. Based on this evidence, the Appellate Division ruled, “[defendant] established, prima facie, that the plaintiff’s accident was not the result of an elevation-related hazard encompassed by Labor Law 240(1)” and the plaintiff, in opposition, failed to raise an issue of fact.


An important takeaway from the ruling for New York Labor Law litigators is that precise comparisons must be made between the testimony and the case law, especially with regard to exactly how deep a hole must be in order to qualify as a possible Labor Law 240(1) condition. Here, five witnesses testified regarding their observations of the depth of the hole, and at least 19 different precedents provide guidance as to the approximate depth range that triggers Labor Law 240(1).

The key to this ruling was obtaining and providing the court with concise descriptions of all five witnesses’ testimony, comparing that to depth ranges from 19 cases, combined with excluding irrelevant evidence that pertained to depth only after the hole was ready for the pump. Under such circumstances, the court can easily be led astray if one witness’ testimony appears to coincide with one precedent that would seem to trigger Labor Law 240(1). Threading this needle requires organizing and arguing the alleged facts in such a way as to eliminate any doubt in the court’s mind that the hole or alleged fall was simply too shallow to violate the statute.

We are continuing to try to limit the scope of Labor Law 240(1) claims and believe courts may now be willing to not grant summary judgment on such claims just because the plaintiff has fallen.

If you have any questions about this or any other matters handled by our team, please do not hesitate to contact the authors of this alert. Visit our New York Labor Law and Appellate Practice pages for additional alerts in this area.


Nicholas P. Hurzeler, Partner

Gregory S. Katz, Managing Partner - New York, NY

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