Trends In New York Construction Law


Revisiting the “Sole Proximate Cause” Defense

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As defense counsel encounter time and time again, it often takes a unique set of facts and admissions from plaintiff to successfully dismiss a Labor Law 240(1) claim based on the so-called “sole proximate cause” defense. Those facts and admissions were on full display in a recent Second Department case entitled Melendez v. 778 Park Avenue Building Corp. wherein the Appellate Division unanimously affirmed the lower court’s ruling and dismissed plaintiff’s claims on account of plaintiff being solely responsible for his accident.

Melendez involved a worker constructing the platform portion of the scaffold by placing planks on top of I-beams. In the process, he stepped on an unsecured plank and fell. The evidence, however, made clear that it was plaintiff, and only plaintiff, who placed the unsecured plank on the I-beams mere seconds before his fall. Moreover, plaintiff had the option of standing atop secured planks of which he was fully aware since he admitted to walking on the secured planks shortly before the accident. The Court held that plaintiff was solely responsible for the unsafe means and methods chosen to construct the platform and dismissed the 240 claim against the owner and general contractor. While not expressly addressed in the decision, the Court likely considered that no additional safety devices beyond the secured planking were needed to afford plaintiff “proper protection” as contemplated under the scaffolding statute. As straightforward as this analysis seems, one has to wonder whether the outcome would have been different had this case been heard in the First Department, where outright dismissals of Labor Law 240 claims seem few and far between.

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Paul Howansky

Paul Howansky is a partner at Harrington, Ocko & Monk, LLP where he specializes in handling insurance coverage disputes, construction litigation and subrogation claims. He also manages the firm's appellate practice. Mr. Howansky earned his J.D. from Hofstra University School of Law, where he served as Articles Editor for the Hofstra Law Review. If you have any questions regarding construction law issues, please contact Paul at (914) 686-4800 or via e-mail