Background
Walter Intriago, a construction worker, was injured at a Kings County job site when he fell from a stack of doors piled approximately seven feet high. A supervisor had directed him to climb the stack to remove two to three feet of snow that had accumulated on top, and when Intriago requested a ladder, the request was denied. As he climbed down after removing the snow, the doors shifted beneath him, sending him crashing onto debris and the ground below.
Intriago sued the owners of the premises and the general contractor, asserting claims under Labor Law §§ 200, 240(1), and 241(6)—New York’s “Scaffold Law.” After the note of issue was filed, Intriago moved for summary judgment on liability under § 240(1). The defendants cross-moved to dismiss and submitted an affidavit from nonparty supervisor Ricardo Morales that contradicted key aspects of Intriago’s account. Intriago then cross-moved under CPLR 3126 to preclude Morales’s testimony entirely, arguing the defendants had concealed his identity in defiance of multiple court orders requiring witness disclosure. The Supreme Court, Kings County (Cohen, J.) granted Intriago’s motions and denied the defendants’ cross-motion as untimely. The defendants appealed.
The Appellate Division was asked to decide two questions: first, whether the undisputed facts established § 240(1) liability as a matter of law; and second, whether the lower court abused its discretion in precluding a witness whose identity was disclosed for the first time in the defendants’ summary judgment opposition papers.
The Court’s Holding
The Appellate Division, Second Department affirmed in full. On the Scaffold Law question, the court held that Intriago’s testimony established a clear violation of Labor Law § 240(1). He was directed by a supervisor to climb a seven-foot improvised platform, denied a ladder, and fell when the stack gave way—exactly the kind of elevation-related gravity risk the statute targets. The owner and general contractor bore absolute, nondelegable liability for the failure to provide adequate fall-protection equipment.
On the preclusion issue, the court upheld the CPLR 3126 sanction. Under that provision, courts may preclude a party from using undisclosed witnesses when noncompliance is willful and contumacious. Willfulness was readily inferred: the defendants had ignored the plaintiff’s discovery demand and multiple court orders—including a final order that expressly warned noncompliance would result in preclusion—before producing Morales’s affidavit for the first time in opposition to the plaintiff’s summary judgment motion. The court found no improvident exercise of discretion and declined to disturb the sanction.
Key Takeaways
- Labor Law § 240(1) covers improvised elevation hazards. A stack of doors seven feet high is a protected work surface; a worker directed to climb it without a ladder has a strong § 240(1) claim when the stack collapses.
- A supervisor’s directive to climb an unstable structure—combined with denial of a ladder request—is sufficient to impose absolute, nondelegable liability on owners and general contractors regardless of the worker’s role in creating the condition.
- CPLR 3126 preclusion is available—and will be enforced—against parties who ignore discovery demands and court orders and then produce a key witness affidavit at the summary judgment stage. Courts will draw the inference of willful concealment from a pattern of repeated noncompliance.
- Defense teams in Labor Law litigation must treat court-ordered witness disclosure deadlines as firm: late disclosure of fact witnesses can result in their permanent exclusion from trial and from motion practice.
Why It Matters
For New York construction defendants, Intriago confirms that the Scaffold Law is not limited to traditional scaffolding. Any work surface—including an improvised stack of materials—can constitute an elevation hazard when workers are directed to climb it without fall protection. Owners and general contractors who allow supervisors to improvise work platforms and deny ladder requests do so at the risk of absolute liability under § 240(1).
The preclusion holding carries equal weight. The conduct that triggered sanctions here—ignoring demands, failing to comply with multiple court orders, then producing a key affidavit at the last moment—is precisely the pattern courts will punish by eliminating the defense witness entirely. In scaffold law cases, where a single supervisor’s account can make or break a § 240(1) defense, losing that witness to a CPLR 3126 order can be outcome-determinative.