Labor Law Pointers

A Monthly Electronic Newsletter Addressing
New York State Labor Law Decisions and Trends

Volume IX, No. 10
Wednesday, September 2, 2020

Golec v Dock St. Constr., LLC
August 5, 2020
Appellate Division, Second Department

Plaintiff brought a Labor Law § 241(6) claim against the Dock Street defendants, who commenced at third-party action against Locreconcrete for contractual and common-law indemnification. Dock Street contracted with Loreconcrete, to perform construction work on a project located in Brooklyn. Plaintiff, an employee of Loreconcrete, allegedly sustained injuries while removing concrete from the interior of a concrete pumper truck owned by Loreconcrete.
 
Plaintiff entered the hopper of the truck in order to chip off residual concrete. Although the pump motor was turned off, the engine of the truck, which supplies power to the pump motor, was running. While plaintiff was standing on an s-tube, the s-tube moved, he lost his balance, and his left foot slipped and was crushed by the pump. The trial court denied the Dock Street defendants’ motion for summary judgment dismissing the Labor Law § 241(6) claim and on its third-party claims against Loreconcrete.
 
Labor Law § 241(6) (MAS)
Plaintiff Labor Law § 241(6) claim was predicated on a violation of Industrial Code (12 NYCRR) regulation § 23-9.2(a), which provides that “[a]ll power-operated equipment shall be maintained in good repair and in proper operating condition … Any servicing or repairing of such equipment shall be performed only while equipment is at rest.”
 
The Second Department held this regulation was sufficiently specific to form a predicate for liability and is applicable to this case as plaintiff’s deposition testimony indicated that the engine of the concrete pumper truck supplies power to the pump, and that at the time of the accident, the engine of the concrete pumper truck was running. Therefore, the machine was at rest and the trial court’s decision to deny the Dock Street’s and Loreconcrete’s separate motions were properly denied.
 
However, the Court noted that plaintiff was the only witness and testified that he was the one who turned off the concrete pump prior to entering the tub, that in his experience he had never seen an s-tube move while the concrete pump was turned off, and that he did not know what caused the s-tube to move. As the Court found the proof did not establish the cause of the accident, it denied plaintiff’s request to exercise its discretion and award plaintiff summary judgment on this claim.
 
Indemnity Issues in Labor Law (BFM)
The Second Department reversed the trial court’s denial of the Dock Street defendants’ motion for contractual and common-law indemnification, finding that defendants established their prima facie entitlement to judgment as a matter of law by showing that they were not actively negligent, that Loreconcrete directed, supervised, and controlled plaintiff's work, and that as a result of the accident, plaintiff suffered a grave injury as defined by Workers' Compensation Law § 11, i.e., the loss of multiple toes. The Court, in issuing a conditional judgment in favor of defendants on their indemnification claims, held that “[a] court may render a conditional judgment on the issue of indemnity pending determination of the primary action in order that the indemnitee may obtain the earliest possible determination as to the extent to which he or she may expect to be reimbursed.”
 
 

Gomez v Principe
August 5, 2020
Appellate Division, Second Department

 
Plaintiff was allegedly injured when he stepped in a hole on defendants' property. He sued to recover damages based on defendants’ alleged negligence. After the close of discovery, defendants moved, for summary judgment dismissing the complaint. Plaintiff opposed the motion and cross-moved to amend the complaint and bill of particulars to allege a violation of Labor Law § 200. The trial court denied plaintiff's cross-motion and defendants’ motion for summary judgment. 
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed denial of defendants’ motion for summary judgment and reversed the trial court’s decision and granted plaintiff’s motion for leave to amend the complaint and bill of particulars to allege a violation of Labor Law § 200; finding that defendants failed to meet their burden of eliminating triable issues of fact regarding their constructive notice of the hole on their property. 
 
As for plaintiff’s cross-motion, the Court held that leave to amend should be given where the amendment is neither palpably insufficient nor patently devoid of merit, and the delay in seeking amendment does not prejudice or surprise the opposing party. Mere lateness, in and of itself, is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side. The Court found plaintiff’s proposed amendment was neither palpably insufficient nor patently devoid of merit and defendants did not demonstrate any prejudice or surprise would result from the amendment. Accordingly, the motion for leave to amend should have been granted.
 
 

Tomala-Campoverde v Trumbull Equities, LLC
August 5, 2020
Appellate Division, Second Department

 
Plaintiff was injured while working on the construction of a new building. At the time of the incident, he was attempting to connect two steel beams, one of which had just been hoisted by a crane and was suspended horizontally from the beam's center. After raising the beam, the crane locked, which prevented the raised beam from moving up or down. The raised beam did not fit properly. Plaintiff, on one end of the raised beam, and another worker, on the other end of the raised beam, pushed the raised beam forward a foot to a foot-and-a-half while attempting to secure the raised beam to the installed beam. The raised beam swung back toward plaintiff, sliding slowly along the installed beam. He held onto another beam for support and placed his feet flat against the raised beam and pushed, in an effort to stop the beam. As he pushed, he felt pain in his back and his neck. 
 
The trial court (1) granted defendants/third-party plaintiffs’ motion and the separate motion of third-party defendants for summary judgment dismissing (a) the Labor Law § 240(1) claim against defendants/third-party plaintiffs, and (b) Labor Law § 241(6) claim predicated on 12 NYCRR 23-2.3(c) against defendants/third-party plaintiffs, and (2) denied plaintiff's cross-motion for summary judgment on the (a) Labor Law § 240(1) claim against defendants/third-party plaintiffs, and (b) Labor Law § 241(6) claim predicated on regulation 2.3(c) against defendants/third-party plaintiffs.
 
Labor Law § 240(1) (DRA)
The Second Department affirmed the trial court; finding that defendants/third-party plaintiffs and third-party defendants demonstrated their prima facie entitlement to judgment as a matter of law by showing that plaintiff's accident was not the result of a “physically significant elevation differential” (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603; see Sullivan v New York Athletic Club of City of N.Y., 162 AD3d 950, 953). In opposition, the Court held that plaintiff failed to raise a triable issue of fact.
 
PRACTICE POINT:  In a §240(1) case the injury must be caused by a “physically significant elevation differential.”  Here that is simply not the case, and the fact that the plaintiff was working at a height is of no consequence.  Had the plaintiff been doing the same thing while at ground level, with the beams at the same height, the same result would follow.
 
Labor Law § 241(6) (MAS)
The Second Department reversed the trial court and denied the separate motions of defendants/ third-party plaintiffs and third-party defendants dismissing the Labor Law § 241(6) claim based on regulation 23-2.3(c), which states that “[w]hile steel panels or structural steel members are being hoisted, tag lines shall be provided and used to prevent uncontrolled movement of such panels or members.”
 
Here, the Court found triable issues of fact whether that regulation was violated as there were conflicting evidence as to whether tag lines were provided to stabilize the beam upon the hoisting of the beam. The Court also noted that plaintiff’s expert affidavit opined, “with a reasonable degree of engineering certainty,” that the regulation was violated.
 
 

Fiore v Westerman Constr. Co., Inc.
August 12, 2020
Appellate Division, Second Department

 
Defendant Westerman, the construction manager for the project, hired Eurotech, the appellant, to put in new concrete steps and a disability ramp at the front entrance of the building, as well as to replace and widen the sidewalk and put in a ConEdison vault underneath the sidewalk. While most of the appellant’s work was performed outside the building, it also performed some work inside in the basement of the building. Westerman hired Trystate as the HVAC subcontractor, and Trystate hired Striker as the sheet metal subcontractor.
 
Plaintiff, an employee of Striker, sustained injuries when, while pushing a hand truck that contained pieces of duct work up a temporary wooden construction ramp, he slipped and fell on construction debris consisting of what he described as scrap pieces of plywood. Plaintiff testified at his deposition that on the day of the accident, he had been instructed by his supervisor to bring the duct work pieces inside the building through the front door of the main entranceway of the building because the pieces were large and would not fit through the side door he usually used to access the building. According to plaintiff, a temporary wooden construction ramp was in place leading to the front of the building. He testified that one of the tires on the hand truck was partially deflated, and that when he had walked approximately four feet up the ramp, the duct work shifted; in trying to stabilize the hand truck, he took a step back, and slipped on the pieces of plywood. 
 
The trial court denied defendant's motion for summary judgment dismissing the complaint and all cross claims against it.
 
Labor Law § 240(1) (DRA)
The Second Department reversed the trial court and granted Eurotech’s motion for summary judgment dismissing the complaint and all cross claims against it. It found the appellant established its prima facie entitlement to judgment by demonstrating it was not an agent of the general contractor or the owner with regard to plaintiff's work There was no evidence that the appellant had any authority to supervise or control plaintiff’s work.
 
The deposition testimony of Westerman's employee and the appellant's employee established that the appellant was merely a subcontractor of Westerman, hired in the capacity to build the new entrance to the building from the street. The deposition testimony of plaintiff and his supervisor demonstrated that only the supervisor gave instructions to plaintiff with regard to the performance of his work. In opposition, the plaintiff failed to raise a triable issue of fact.
 
PRACTICE POINT:  The issue here is the status of the defendant as an agent of the owner or contractor.  The necessary element to establish such agency is the authority to supervise, direct, or control the injury producing work.  Here no such authority existed.  The key to establishing, or eliminating that authority is to review the contracts and the actions of the parties.  If the authority is granted by the contracts, the party is appropriate as a Labor Law defendant; however, even absent such authority in the contracts, a party acting in such a manner will also be an appropriate Labor Law defendant.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department reversed the trial court’s decision and held that Eurotech established its entitlement to judgment as a matter of law dismissing the Labor Law § 200 and common-law negligence causes of action by demonstrating it did not have control over the work site. The deposition testimony of the Eurotech’s employee, and an employee of co-defendant Westerman, demonstrated that Eurotech was no longer present at the work site where plaintiff's accident occurred on January 10, 2012, as Eurotech had completed its work in front of the building prior to that time. 
 
Photographs depicting the front of the building in December 2011 supported this claim. Specifically, a photograph of the installation of stone on the concrete steps that Eurotech had previously poured established that it was finished with its work prior to December 20, 2011. While there was testimony that Eurotech was present on the site in January 2012, at that point in time it was working inside the building, in the basement, having completed the work in front of the building. In opposition, the Court held plaintiff failed to raise a triable issue of fact; accordingly, Eurotech was entitled to dismissal of the Labor Law § 200 and common-law negligence claims.
 
 

Henriquez v Clarence P. Grant Hous. Dev. Fund Co., Inc.
August 12, 2020
Appellate Division, Second Department

Plaintiff allegedly sustained injuries when a plank of wood fell on his head as he and others were dismantling a scaffold at a worksite in Manhattan. The trial court granted the contractors’ motion for summary judgment dismissing the Labor Law § 240(1) claim and denied plaintiff's cross-motion for partial summary judgment on that claim.

Labor Law § 240(1) (DRA) 
The Second Department affirmed the trial court’s decision denying plaintiff's summary judgment motion on his § 240(1) claim, as he failed to establish his prima facie entitlement to judgment as a matter of law. Plaintiff's evidence was insufficient to establish that the plank fell because of the absence or inadequacy of a safety device. He testified at his deposition that he was facing away from the scaffold at the time the plank struck him, and that he only learned about what happened from others after he awoke at the hospital. He also submitted the deposition testimony of a superintendent who was not at the worksite on the day of the incident and also learned about it from others. This testimony failed to establish, prima facie, that plaintiff's injuries were proximately caused by the absence or inadequacy of a safety device.

In support of his motion, plaintiff also relied upon hearsay information contained in a daily log, which he offered as a business record. However, the Court found that plaintiff failed to demonstrate the admissibility of the daily log for the purpose of proving the truth of the information contained therein. In any event, the information failed to advance plaintiff's prima facie showing because it showed “simply that an object fell causing injury to a worker” (Narducci v Manhasset Bay Assoc., 96 NY2d at 268).  Lastly, the Court found that plaintiff could not meet his prima facie burden by submitting evidence for the first time in reply, and disregarded that evidence (Nationstar Mtge., LLC v Tamargo, 177 AD3d 750, 753).

PRACTICE POINT:  The burden of proof in New York to succeed on a summary judgment motion rests with the moving party in all cases.  Here, we are reminded that simply because an object falls and strikes the plaintiff, summary judgment will not be granted without a prima facie case being presented.  Here, the plaintiff did not prove, through admissible evidence, that the object fell in violation of §240(1).  I have some issue with the decision, as I have always read the prima facie requirement to be, that a falling object must be one that is being hoisted or should have been secured, and the court, while mentioning the requirement, seems to have skipped right over the lack or proof on that point.  They do address that there needs to be a lack of or inadequacy of an appropriate safety device which was the cause of the falling object and injury to the plaintiff.
 
 

Crichigno v Pacific Park 550 Vanderbilt, LLC
August 19, 2020
Appellate Division, Second Department

 
Plaintiff was a laborer working in the basement of the structure stripping from the ceiling plywood and ribs which had served as forms onto which concrete had been poured to form the ground floor of the structure. He was assigned to collect the stripped ribs from the basement floor and deposit them into a debris box. While he was walking through the basement, he was struck by a piece of plywood that had just been pried off the ceiling by another worker who was standing on a scaffold approximately 10 to 12 feet from where the plaintiff was located. The trial court denied plaintiff's motion for summary judgment on the issue of liability on all claims.
 
Labor Law § 240(1) (DRA)
The Second Department affirmed the trial court’s finding, that plaintiff established his prima facie entitlement to summary judgment under Labor Law § 240(1), by showing that while he was working at ground level in the basement, a piece of plywood fell from an elevated height and struck him. However, in opposition, the Court held defendants' submissions raised a triable issue of fact as to whether the plywood that struck plaintiff was an object that did not require securing.

PRACTICE POINT:  Plaintiff had an expert who testified that the simple fact that the plaintiff was struck by the dropped piece of plywood established a violation of §240(1).  What he did not opine was “whether this type of work normally requires securing for the purposes of the work being performed” as discussed in the decision below.  Thus, there was a question of fact.
 
Labor Law § 241(6) (MAS)
Plaintiff’s Labor Law § 241(6) claim was based on alleged violations of regulations 23-1.7(a)(1) and 3.3(g). Regulation 1.7(a) applies to areas “normally exposed to falling material or objects.” Here, the Court held that plaintiff failed to demonstrate that the area where he was working was such an area and, therefore, whether that provision was applicable (see Moncayo v Curtis Partition Corp., 106 AD3d 963, 964 [2Dept 2013]).
 
Although regulation 3.3(g) requires that certain safety precautions be taken against falling debris in “other areas,” the Court found plaintiff was not subject to falling debris from “other areas” (see Salinas v Barney Skanska Const. Co., 2 AD3d 619, 622 [2d Dept 2003]). Moreover, plaintiff failed to establish that installation of the safety devices in issue would not be contrary to the objectives of the work (see Salazar v Novalex Contr. Corp., 18 NY3d 134, 139-140 [2011]).
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department reversed the trial court’s decision denying summary judgment as to Labor Law § 200 and common-law negligence; finding that defendant met its burden of proof on this issue by submitting evidence establishing that the alleged dangerous condition arose from the methods [of plaintiff’s employer] and that defendant did not exercise supervisory control over the removal of the tree or any aspect of plaintiff’s activities. As plaintiff failed to raise any triable issues of fact in opposition, defendant was entitled to summary judgment on the Labor Law § 200 and common-law negligence claims.
 
 

Palamar v State of New York
August 19, 2020
Appellate Division, Second Department

 
Claimant allegedly sustained personal injuries when he fell from a crossbeam while performing sandblasting work on a bridge owned by the State of New York. The Court of Claims denied claimant’s cross-motion for summary judgment on his Labor Law § 240(1) claim.
 
Labor Law § 240(1) (DRA)
The Second Department affirmed; finding that claimant established his prima facie entitlement to judgment as a matter of law on the issue of liability on so much of the claim as alleged a violation of Labor Law § 240(1) by submitting evidence that he fell from a crossbeam and onto a work platform below, and that the failure to provide him with an adequate safety device proximately caused his injuries. In opposition, however, the Court held respondent raised a triable issue of fact as to the manner in which the accident occurred and whether claimant’s own actions were the sole proximate cause of the accident
 
PRACTICE POINT:  The decision is short on facts and the Court of Claims decision is not reported so we are left to wonder in what way the plaintiff was the sole proximate cause of the accident, but it is an excellent time for us to review the necessary elements.  The plaintiff must: 1) be provided with an appropriate safety device, which is 2) available on site, which he was 3) instructed to use or knew he was expected to use, which he 4) did not use or misused, for 5) no good reason.  All 5 elements must be proved to succeed on a sole proximate cause defense.
 
 

Krencik v Oakgrove Constr., Inc.
August 20, 2020
Appellate Division, Fourth Department

 
Plaintiff was allegedly injured when a tree fell from an excavator and struck him. Defendant was hired as the general contractor of a highway project that included excavation of embankments, grading and reshaping of ditches, and installation of drainage culverts along the Thruway. Defendant subcontracted the tree removal work to plaintiff's employer. At the time of the accident, plaintiff was cutting down trees adjacent to the Thruway and plaintiff's supervisor was using the excavator to move the cut trees into piles. 
 
The trial court granted defendant’s motion for summary judgment dismissing the claims under Labor Law §§ 240(1) and  241(6) claim predicated on OSHA violations, denied defendant’s motion to dismiss the § 241(6) claim predicated on Industrial Code violations, and denied defendants motion to dismiss the Labor Law§ 200 and common law negligence claims, and denied plaintiff’s cross-motion for partial summary judgment on his Labor Law § 240 (1) claim.
 
Labor Law § 240(1) (DRA)
The Fourth Department reversed the trial court; initially agreeing with plaintiff that defendant’s contention that it was entitled to summary judgment dismissing this claim because plaintiff was not injured during "the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” is incorrect. Although trees are not structures and tree removal in and of itself is not an enumerated activity within the meaning of Labor Law § 240 (1), the Court held tree removal, performed to facilitate an enumerated activity, does come within the ambit of this statute.
 
The Court also held that defendant failed to meet its initial burden on that part of its motion because defendant’s own submissions raised a triable issue of fact whether plaintiff's tree removal work at the time of the accident was ancillary to the larger construction project, specifically the culvert installation work, that was ongoing at the time of the accident (see Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878, 881 [2003]; Lombardi, 80 NY2d at 296; cf. Cicchetti v Tower Windsor Terrace, LLC, 128 AD3d 1262, 1264 [3d Dept 2015]).
 
Contrary to plaintiff's further contention, however, the Fourth Department found that the trial court properly denied his cross-motion seeking summary judgment under § 240(1), because plaintiff failed to eliminate all triable issues of fact whether his tree removal work “[fell] into a separate phase easily distinguishable from other parts of the larger construction project.”
 
PRACTICE POINT:  A tree is not considered to be a structure as a structure is made from component parts and a tree obviously is not.  Thus, had the plaintiff simply been cutting down a tree it would not have been a §240(1) case.  Where the cutting down or trimming of a tree is a part of a construction project, the question is whether it falls into a separate phase from the actual construction work.  Where a worker is removing trees, but the actual construction project does not start for several weeks or months, there is not a §240(1) case.  If, however, there is a bulldozer waiting to start the site work and dig a foundation hole, it likely will be a §240(1) case.
 
Labor Law § 241(6) (MAS)
The Second Department agreed with defendant that claims premised on violations of OSHA regulations must be dismissed under Labor Law § 241(6) because plaintiff was not an employee of defendant. However, as the Court already found a triable question of fact whether plaintiff’s work at the time of his incident was covered under the statute and denied defendant’s motion. The Court further noted that defendant’s proof also raised an issue of fact on this issue regarding whether the tree clearing in which plaintiff was involved was a part of the excavation of the embankments, grading, and reshaping of ditches that was ongoing at the time of his incident.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department reversed the trial court decision denying summary judgment on the Labor Law § 200 and common-law negligence claims. It noted the well-settled law that “where such a claim arises out of alleged defects or dangers arising from a subcontractor's methods or materials, recovery against the owner or general contractor cannot be had unless it is shown that the party to be charged exercised some supervisory control over the operation.” 
 
The Court found that defendant met its burden of proof on this issue by submitting evidence establishing that the alleged dangerous condition arose from the methods [of plaintiff’s employer] and that defendant did not exercise supervisory control over the removal of the tree or any aspect of plaintiff’s activities. As plaintiff failed to raise any triable issues of fact in opposition, defendant was entitled to summary judgment on the Labor Law § 200 and common-law negligence claims.
 

Schutt v Bookhagen
August 20, 2020
Appellate Division, Fourth Department

 
Plaintiff was injured while working for a company that defendants hired to install a new roof on one of their rental properties. Although plaintiff served as a ground laborer on the work site, he was allegedly injured when he fell from the roof. According to plaintiff, he had been instructed to go onto the roof and, while there, the toe board that he used to stabilize himself failed, causing him to slide off the roof. He was not wearing a harness at the time of his incident.
 
The trial court granted in part and denied in part plaintiff’s motion for partial summary judgment on his Labor Law §§ 240(1) and 241(6) claim as well as defendant’s cross-motion for partial summary judgment.
 
Labor Law § 240(1) (DRA)
The Fourth Department reversed the trial court and agreed with plaintiff that his motion should have been granted, because he met his initial burden on that part of the motion by establishing that his “injuries were the direct consequence of a failure to provide adequate protection against a risking arising from a physically significant elevation differential.” In opposition, defendants submitted deposition testimony from the owners of plaintiff’s employer, neither or whom wore a harness on the day of the incident, establishing that plaintiff may have been aware that harnesses were somewhere on the work site, was told to wear a harness while on the roof, and was instructed on how to wear a harness. However, the Court held they failed to raise a triable issue of fact whether “safety harnesses were readily available at the work site, albeit not in the immediate vicinity of the accident.”
 
The dissent by Justices Smith and Centra affirmed the trial court; finding triable issues of fact whether there was a violation under Labor Law § 240 (1) and whether defendants provided plaintiff with adequate safety devices based on evidence that, in addition to the toe boards, safety harnesses were available for plaintiff’s use but that he was not wearing one at the time of his incident.
 
PRACTICE POINT:  This may be the most important case to come out in recent months.  There is a split within the Fourth as to whether multiple safety devices being present or required, and one of them failing to provide protection eliminates the sole proximate cause defense.  Here the plaintiff was arguably provided a safety harness which, if used by the plaintiff as instructed, would have prevented the injury.  He was not provided with an appropriate toe board on the roof, as the failure of that safety device caused the initial fall.  The majority granted summary judgment based, at least in part, because there were multiple safety devices and one of them failed, eliminating the possibility of a sole proximate cause defense.  The dissent, by Justices Smith and Centra disagrees and succinctly stated “Under the majority's analysis, defendants would fare better if plaintiff's employer had not provided the toe board at all, which defies logic and is contrary to the goal of the statute to make construction sites safer for workers. The purpose of the statute is to hold an owner or contractor liable for failing to provide a worker with proper protection.”  I encourage all of you to actually read the decision.  It covers a lot of ground and will be heavily cited for years to come.  In addition, as there is atwo-justice dissent, it may get to the Court of Appeal.  As you will recall, all you need to do is click on the case hyperlink above and the decision will be provided immediately. 
 
Labor Law § 241(6) (MAS)
The majority and dissent both affirmed the trial court’s denial of plaintiff’s motion under Labor Law § 241(6). Plaintiff relied on regulation 23-1.16(c), which although sufficiently specific, did not apply to this case as he was not provided with a harness. Moreover, although plaintiff stated that he was never provided with a harness or instructed on how to use one, he also submitted deposition testimony contradicting those assertions, thereby raising issues of fact.