Tackling a discussion he called “long overdue,” Justice Nelson Roman (See Profile) of the Appellate Division, First Department, said yesterday in a concurring opinion that a “gravity-related risk” for purposes of New York’s Labor Law arises only when an accident is foreseeable as a result of failing to provide a worker with a safety device.

The case, Fabrizi v. 1095 Avenue of the Americas, 108280/08, involves an injury suffered by an electrician who was working on remodeling office space for Dechert LLP, which is also a defendant in the case.

The plaintiff, Richard Fabrizi, was injured while moving a “pencil box,” a box that allows access to wires that run through a building in conduits, from one location to another. The box was connected above and below to lengths of conduit, which were in turn joined to additional lengths of conduit, running vertically through the building. The lengths of conduit were joined by compression couplings, which held the conduits together with tightened rings. In order to move the pencil box, Fabrizi unfastened it from the conduits that joined it from above and below. He also unfastened the box from a bracket on the wall. While he was moving the box, the length of conduit above the box fell on his hand, injuring him.

Fabrizi sued the owner of the building, the construction contractor, J.T. Magen Construction Company Inc. and Dechert, alleging violations of Labor Law §§200, 240(1), and 241(6).

The parties cross-moved for summary judgment. In June 2011, Manhattan Supreme Court Justice Emily Jane Goodman (See Profile) granted the defendants’ motion as to Fabrizi’s §§200 and 241(6) claims, but granted Fabrizi’s motion on his §240(1) claim, finding the defendants liable. Section 240(1) requires property owners to furnish workers with “scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices” needed to ensure their safety.

The defendants appealed to the First Department. The majority, which consisted of Justices Karla Moskowitz (See Profile), Rosalyn Richter (See Profile) and Sheila Abdus-Salaam (See Profile), affirmed the grant of summary judgment for the defendants and reversed the grant of summary judgment for Fabrizi on the §240(1) claim, ruling that there were issues of fact as to whether the defendants failed to provide a necessary safety device.

Roman, in a concurring opinion, said he was writing separately “in order to address foreseeability as an element in all Labor Law §240(1) cases, an issue whose discussion, at least in my view, is long overdue.”

Roman noted that an accident generally comes in the scope of §240(1) if it is caused by a hazard posed by a difference in elevation at a construction site and the accident is “foreseeable,” citing Gordon v. Eastern Ry. Supply, 82 NY2d 555, 561 (1993). He said that foreseeability requirement was a crucial component of any claim.

“After all, an accident cannot trigger the extraordinary protections of Labor Law §240(1) merely because it is gravity-related,” he said. “Otherwise, virtually every accident would fall within the purview of Labor Law §240(1), and defendants would never be able to forecast when safety devices are required.”

“For example, while a trip and fall, at ground level, over a defect or negligently placed object is, in large measure, caused by gravity, the Court of Appeals has held that such an accident does not give rise to liability under Labor Law §240(1),” he said, citing Melber v. 6333 Main St., 91 NY2d 759, 763 (1998).

However, Roman said, the First Department has not been consistent in applying the foreseeability requirement. For example, in Ortega v. City of New York, 95 AD3d 125, 126 (2012), it held that “a plaintiff is not required to demonstrate that the injury was foreseeable, except in the context of a collapse of a permanent structure.”

Roman noted that, in cases that did involve the collapse of a permanent structure, the court had consistently held that foreseeability was a requirement. But he said that the foreseeability requirement should not be limited to such cases.

“Based on the foregoing, it is beyond cavil that in cases pursuant to Labor Law §240(1) and, more particularly, as is the case here, cases involving injury by virtue of a falling object, the dispositive issue for purposes of the statute’s applicability is not, as argued by defendants, whether an object falls from a permanent structure or whether at the time of injury the object was being hoisted or secured,” he said.

“Instead, the pertinent and indeed dispositive inquiry is whether it was reasonably foreseeable at the outset that the task assigned to a worker exposed him/her to a gravity-related hazard, so that he/she should have been provided with one or more of the safety devices required by the statute.”

However, he said that Fabrizi should not have been given summary judgment because there “exists a sharp question of fact with respect to whether the compression coupling holding the conduit in place failed because it was inadequate or because plaintiff misused the coupling by removing supports designed to be used in conjunction therewith”—that is, detaching the box from the wall bracket and leaving the conduit hanging.

Justice Peter Tom (See Profile) dissented, saying that the defendants should have been granted summary judgment on the §240(1) claim because Fabrizi had caused the accident by unfastening the box from the wall bracket with the conduit still in place, for which he offered “no rational explanation.”

“We’re pleased that they reversed the grant of summary judgment for the plaintiff, but we’re a little disappointed that they didn’t join Justice Tom,” said Daniel Zemann of London Fischer, counsel for the defendants.

Brian Isaac of Pollack, Pollack, Isaac & DeCicco, counsel for Fabrizi, could not be reached for comment.