In Ramirez v. Shoats, the plaintiff fell from an unfinished, permanent staircase. On motion by defendant building owner for summary judgment, the trial court found that questions of fact existed as to whether the staircase was the sole means of access for plaintiff to descend from his worksite, and thus a safety device within the meaning of the Labor Law. On appeal, the majority of the Panel agreed. In a two-Judge dissent, however, it was observed that alternative means of access were located at every floor of the worksite. As such, plaintiff used the stairway not as a safety device, but merely as a passageway. The dissent observed that, in such instance, all four Appellate Departments have consistently held that a permanent staircase is not a safety device within the meaning of the statute.
In Vasquez v. Urbahn Assoc. Inc., the plaintiff similarly fell from a permanent staircase. In Vasquez, however, the building was being demolished at the time of the accident. The majority of the Panel reversed summary judgment in favor of plaintiff on his Labor Law 240 claim, finding that whether the collapse of the stairs was foreseeable was a question of fact for the jury to determine. The two-Judge dissent refused to require the "foreseeability" element, with Judge Acosta, who had concurred in the Court's earlier opinion in Jones v. 414 Equities LLC (57 AD3d 65 [1st Dept. 2008]), now stating "I... believe that a better approach would be to not read into the statute a forseeability requirement, lest we encourage contractors, as here, to take a head-in-the-sand approach to their statutory obligations."
Notably, finality does not exist in either case. As such, appeal to the Court of Appeals at this time can only be had by permission. Of course, we will keep everyone posted as to whether leave is granted in either case.