Bloomingdale's flagship store on Lexington Ave.
Bloomingdale’s flagship store on Lexington Ave. (Coolcaesar/Wikipedia)

Bloomingdale’s Inc. is liable to a carpenter who fell off a ladder in the company’s Manhattan store after a supervisor refused to let him use a portable scaffold, a state appeals panel has ruled.

The decision reverses a lower court’s decision denying the carpenter summary judgment.

Appellate Division, First Department, Justice Rolando Acosta (See Profile), writing for a unanimous panel, ruled Tuesday in DeRose v. Bloomingdale’s, 104884/11, that Bloomingdale’s was liable for the accident under Labor Law §240, sometimes called the scaffold law, which imposes strict liability on property owners.

Acosta was joined by Justices Dianne Renwick (See Profile), Paul Feinman (See Profile) and Darcel Clark (See Profile).

The accident happened in September 2010, when the plaintiff, Jordan DeRose, worked for RP Brennan General Contractors, hired to renovate the Bloomingdale’s store.

DeRose’s supervisor told him to dismantle a temporary wall that had been put up to block demolition work from customers’ view. DeRose started going to get a movable scaffold that was stored in the back of the store, but his supervisor told him he couldn’t, citing the store’s policy against moving equipment through the store in front of customers. He told him to use a ladder instead.

There were three ladders by the wall; two were fiberglass, but they were already being used by other workers. That left DeRose to use a wooden ladder that he later described as “rickety.” When he hit the top support beam of the wall while standing on the ladder, it gave out, causing him to fall and break his wrist.

DeRose sued Bloomingdale’s in April 2011, bringing claims under the scaffold law and other sections of the Labor Law. He moved for summary judgment in December. Bloomingdale’s opposed that motion as premature because DeRose had not yet been deposed.

Bloomingdale’s deposed DeRose in February 2012, and the parties submitted additional motion papers. But Manhattan Supreme Court Justice Debra James (See Profile) nevertheless denied the motion without prejudice as premature in January 2013.

Acosta, reversing, wrote that it didn’t matter that the motion was filed before DeRose’s deposition, because the deposition testimony matched what DeRose already said in his affidavit.

He also found that Bloomingdale’s could not raise any issues of fact to challenge its liability under the scaffold law.

“Defendant makes much of the issues concerning which ladder plaintiff used and the care with which he used the ladder, but that argument obfuscates the real issue in this case: plaintiff was not provided with the single device that would have enabled him to perform the work safely,” Acosta wrote.

“There is no practical difference between what happened here—where a supervisor directs an employee to not use an otherwise available safety device—and a situation where a scaffold simply was not present at the worksite,” he continued.

The judge also said that DeRose could not be expected to challenge his supervisor’s instruction that he not use the scaffold.

“The Labor Law, recognizing the realities of construction and demolition work, does not require a worker to demand an adequate safety device by challenging his or her supervisor’s instructions and withstanding hostile behavior,” he wrote. “To place that burden on employees would effectively eviscerate the protections that the legislature put in place. Indeed, workers would be placed in a nearly impossible position if they were required to demand adequate safety devices from their employers or the owners of buildings on which they work.”

Terrence Cortelli, a partner at StolzenbergCortelli who represents DeRose, said he believed the decision strengthens protections for workers doing construction and demolition by taking real working conditions into account.

“They’re saying, ‘Look, he tried to get the scaffold,’” Cortelli said. “What is he supposed to do, get fired? They made it real world.”

He also said he was pleased that the court rejected Bloomingdale’s argument that the motion was premature. He said that he filed the motion after Bloomingdale’s had adjourned a previously agreed-upon deposition date.

“To us, this is a big deal,” he said. “We’ve got to move these cases. Our clients are not getting paid.”

Harry Steinberg, a partner at Lester Schwab Katz & Dwyer, represented Bloomingdale’s. He declined to comment on the decision.