In a 3-2 decision in Lombardo v. Park Tower Mgt. Ltd., a majority in the First Department awarded summary judgment to the defendant dismissing plaintiff's Labor Law 240(1) cause of action. The Court held that the collapse of the middle step of a three step staircase was not a Labor Law violation. The Court found that the staircase was neither a safety device nor a temporary stairway that was intended to protect a worker from an elevation-related risk within the meaning of the Labor Law. Moreover, being only 18 inches above the floor, the modest height differential of the middle step did not expose the plaintiff to an elevation-related risk.
In dissent, Justice Moskowitz noted that the permanency and height of the staircase were irrelevant to the determination. Instead, the only relevant inquiry was whether plaintiff's injury flowed directly from the application of gravity. Citing Runner v. NYSE (13 N.Y.3d 599 ), Justice Moskowitz found that, since it was undisputed that plaintiff's injury was caused by the application of gravity on his body while he stepped on the weakened stair, summary judgment should have been awarded to plaintiff.