In the recently decided Veliu v. Verizon New York Inc. (2026), the First Department reversed a New York County Supreme Court decision that granted the plaintiff's summary judgment motion on the issue of Labor Law § 240(1) liability in a falling object case. This decision supports a sole proximate cause defense when a plaintiff is the foreman or "pitman" responsible for safety, and there are known adequate safety devices available to protect against trench collapse.

The plaintiff was performing underground pipe installation in a trench as a foreman and "pitman" for a non-party construction company. The plaintiff testified that during this work, a piece of concrete curb rolled out of the bucket of a backhoe and struck his leg. A conflicting affidavit from the plaintiff's coworker stated that nothing fell from a bucket. The coworker instead claimed that a piece of concrete curb overlay detached from the curb and sidewalk during excavation and slid into the trench. A further affidavit from the owner of the employer construction company stated that the plaintiff was responsible for pit safety (including properly bracing the trench), had directed workers to brace parts of the trench, and knew additional lumber bracing was available on site. The trench was about three to four feet deep.

The Appellate Division held that the conflicting accounts created issues of fact. Specifically, it determined that if the defendant's version of the incident was accepted, there remained factual issues on whether the plaintiff knew or should have known the trench area needed bracing and whether available lumber braces could have been used. These factors would support a possible sole proximate cause defense. The Court also established that a trench depth of three to four feet, as indicated in this claim, created an elevation differential that was not de minimis for the purposes of Labor Law § 240(1).

Practical takeaway: This decision underscores that a Labor Law § 240(1) summary judgment motion can be defeated where competing evidence raises a factual dispute about the mechanism of the accident or a plaintiff's knowledge of the use and availability of adequate safety devices. If the plaintiff has the title of foreman or pitman, or is designated as a competent person by their trade, the investigation of whether that worker had knowledge of available safety devices could be crucial in a sole proximate defense for a Labor Law § 240(1) claim.