By Nicholas J. Rose, Esq. · NY Bar 2003

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Construction Accident Injuries in Queens, Your Rights Under New York Labor Law §240

By Nicholas J. Rose, Esq.

Most construction workers in Queens have never heard the words "Labor Law §240." They've heard about workers' comp, and they've heard the wrong version of how it works. The wrong version: "I got hurt on the job, so I file workers' comp, and that's the end of the story." That isn't right in New York. New York gives construction workers a separate, often much larger path to recovery against the property owner and the general contractor. The statute is Labor Law §240. People who know it call it the "scaffold law." If you were hurt on a Queens construction site, this is the law that may decide whether your case is worth $50,000 or $2 million.

I'll walk you through what §240 covers, who can use it, and where the traps are. I'll also explain why workers' comp doesn't replace this case, and why what your boss tells you about your "options" is usually wrong.

What Labor Law §240 actually says

The statute itself is short. It tells owners, contractors, and their agents that they have to give workers "scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed." The full text is at the New York State Senate's official site: N.Y. Labor Law §240.

That language sounds dry. The mechanics underneath it are not. New York courts have read this statute as imposing absolute liability on owners and general contractors for elevation-related injuries when proper safety devices weren't provided or weren't adequate. Absolute liability is a different animal from ordinary negligence. The defense doesn't get to argue you were partly at fault. They don't get to argue you should have been more careful. If a required safety device was missing or inadequate, and that failure caused your injury, the defense's playbook is mostly closed.

There are two narrow exceptions, called "sole proximate cause" and "recalcitrant worker." Both are hard for defendants to win and both require very specific facts. We'll get there.

What kinds of injuries §240 covers

§240 is the gravity statute. Two fact patterns trigger it.

Falling worker. You fell from somewhere elevated. A scaffold, a ladder, a roof, a platform, a pit, a half-finished floor. The required safety equipment was either missing, broken, or not adequate to the job. Most ladder falls fit here. Most scaffold collapses fit here. Roofers without lanyards fit here.

Falling object. You were struck by something heavy that should have been secured against gravity. Construction debris, tools left on a higher floor, materials being hoisted, window frames stacked on a truck without proper bracing. The Court of Appeals in Wilinski v. 334 East 92nd Hous. Dev. Fund Corp., 18 N.Y.3d 1 (2011), threw out the old rule that the object had to fall a long distance.

I had a Brooklyn Labor Law case where the worker was unloading window guards from a truck, three hundred pounds apiece, stacked but not secured. The stack tipped. The guards knocked him off the truck and crushed his knee. Surgery happened shortly after. His treating doctor recommended a knee replacement. The case settled at private mediation for $2,000,000. The defense had started at $150,000. Prior results do not guarantee a similar outcome. Read the full procedural arc in our case results section.

Who is covered

The statute applies to anyone "employed" in covered work. Covered work means erection, demolition, repairing, altering, painting, cleaning, or pointing of a building or structure. The Court of Appeals has read all of those words broadly. "Structure" includes subway tunnels, bridges, garages, scaffolding, water towers, and other industrial work. "Alteration" includes any work that makes a "significant physical change" to the building.

A few things people get wrong:

Union status doesn't matter. §240 protects union and non-union workers identically. Most non-union workers in Queens are scared to file claims. They shouldn't be.
Immigration status doesn't matter for the case itself. Balbuena v. IDR Realty LLC, 6 N.Y.3d 338 (2006), settled this twenty years ago. Undocumented workers can recover full medical bills, pain and suffering, and damages. See our undocumented worker injury rights piece for the full picture.
How you were paid doesn't matter. Cash, 1099, W-2, off-the-books, none of it affects whether you can sue the property owner or general contractor under §240.
One- and two-family homeowners are excluded if they didn't direct or control the work. That's the only meaningful carve-out.

Workers' comp is not the same case

Here's the misunderstanding that costs Queens workers more money than any other.

Workers' compensation is a separate system. It runs through your employer's insurance carrier. It pays a fraction of your wages and your medical bills. It doesn't pay for pain and suffering, future earning capacity beyond the cap, or non-economic damages. And, this is the key, workers' comp generally bars you from suing your employer.

It does not bar you from suing the property owner. It does not bar you from suing the general contractor. It does not bar you from suing other subcontractors who weren't your employer. Those defendants are called "third parties," and a third-party Labor Law §240 case is where the real recovery lives.

You can, and should, file workers' comp. Then you should call a lawyer about the third-party case. They run on parallel tracks. The comp carrier has a lien against your eventual settlement, but after that lien is paid, the rest of the recovery is yours. In a serious injury, the third-party number is usually multiples of what comp pays.

Why summary judgment is the move

Most of my Labor Law cases settle. They don't settle because the defense felt generous. They settle because we win the early motion that takes the case out of "let's see what a jury thinks" territory.

After discovery, depositions, expert reports, document exchange, I move for summary judgment under CPLR §3212 on liability. The argument is: the undisputed facts show §240 was violated. The judge doesn't have to send liability to a jury. The judge can rule, as a matter of law, that the defendants were responsible.

When you win that motion, the case changes. The only fight left is damages. The defense's leverage drops. Settlements jump.

In the Brooklyn window-frame case, my motion and the defense's cross-motion to dismiss both got denied. That sounds like a wash but it wasn't, once both motions failed, the judge pushed both sides to settle. The case left court at around $900,000 on the table during in-court mediation, then went to private mediation and settled at $2 million. The motion practice is what put us in that conversation in the first place.

How damages get built

Two pieces drive the value of a serious §240 case.

Life care plan. A treating doctor, plus a credentialed life care planner, builds a forecast of every medical and functional need you'll have for the rest of your life. Future surgeries, therapy, medication, mobility aids, home modifications. Each item gets a current cost and a frequency, then gets present-valued.

Economist-calculated lost earnings. An economist takes your work history, trade, wage rate, and expected career length, then projects what you would have earned if you hadn't been hurt, discounted to present value.

These are called "special damages." They survive appellate review. Pain and suffering is also real, but appellate divisions sometimes reduce it. Cases built on documented special damages produce more defensible numbers. That's the workflow I run on every major case.

Time limits, and the trap most people miss

Most §240 cases give you three years from the date of the injury to file a lawsuit. CPLR §214(5).

The trap: if your construction injury happened on a New York City public school project (NYC DOE), at NYCHA housing, on an MTA worksite, on a NYC park, or anywhere else the City of New York or one of its agencies is the defendant, you have 90 days to file a Notice of Claim under General Municipal Law §50-e. Ninety days. Not three years. Ninety days.

If you miss the Notice of Claim, the three-year clock doesn't matter. Your case is over. The Brooklyn window-frame case I mentioned was a NYC DOE school project, and the 90-day clock was real. It got handled because the worker called early. Most workers don't, because they're trying to recover and they assume they have time.

If your accident happened anywhere that might be a public site, schools, public housing, transit, parks, or any government building, call a lawyer in the first week. Don't wait.

Sole proximate cause and recalcitrant worker

Two defenses can defeat a §240 claim. Both are narrow.

Sole proximate cause. Your conduct, and only your conduct, caused the accident. Defendants have to prove four things: adequate safety devices were available, you knew they were available and were expected to use them, you chose for no good reason not to use them, and you wouldn't have been hurt if you had used them. Missing any one breaks the defense.

Recalcitrant worker. A subset of sole proximate cause. You got specific safety instructions or a specific safety device, and you deliberately disregarded them. Cahill v. Triborough Bridge & Tunnel Authority, 4 N.Y.3d 35 (2004), is the controlling case.

Defense lawyers try to wedge ladder-fall cases into sole proximate cause after the Bonczar v. American Multi-Cinema decision in 2022. The right plaintiff move is to focus on what device was inadequate or absent.

What this means for you

If you were hurt on a Queens construction site at any elevation, falling from a height, struck by a falling object, injured because materials weren't secured, you may have a §240 case worth far more than what workers' comp will pay. Your union status, your immigration status, and how you were paid don't change that.

The work to prove it is real. Discovery, motion practice, experts, mediation. Some of these cases settle in eighteen months. Some take five years. The ones that don't get filed at all are the ones where the worker thought workers' comp was the only option, or thought a 90-day deadline was a three-year deadline, or thought their immigration status barred them from court.

When to talk to a personal injury lawyer

Call early. Especially if any government entity could be involved. The first call is free and usually about thirty minutes. If you don't have a case worth pursuing, I'll tell you. If you do, we'll talk about how it works, what we'd do, and what we wouldn't.

For a free consultation in English or Spanish, call 718-261-0546 or contact us through our intake form. We come to you anywhere in Queens, Brooklyn, the Bronx, Manhattan, or Staten Island. No fee unless we recover.

Construction Accident Injuries in Queens: Your Rights Under New York Labor Law §240