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Biaca-Neto v Boston Rd. II. Hous. Dev. Fund Corp.
February 18, 2020
Court of Appeals
Plaintiff was working on his third day at the job site, on scaffolding near the seventh floor of a 12-story building. Its undisputed that at least two fully functional devices – a scaffold staircase and a hoist – were available to enable plaintiff to safely descend from the scaffolding platform. It is also undisputed that plaintiff was aware of those safety devices; he built the scaffold staircase and had used the staircase to climb the scaffolding on the morning of his accident. However, although he was an experienced and OSHA-certified worker, he decided to unhook his safety harness and attempted to climb the scaffold railing and hoist himself onto a crossbeam to enter the building through an unfinished window 9-10 feet above the platform. Surprisingly, plaintiff sustained injuries when he slipped and fell to the scaffold platform.
The project’s general contractor, Mountco Construction had previously instituted a standing order that workers were not permitted to enter the building through the window cut-outs. However, there was no evidence that the general contractor or anyone else, including plaintiff’s employer, advised plaintiff of the standing order. Instead, the record contains sworn statements from two of plaintiff’s coworkers that they used the scaffolding “to go into the building . . . through openings for windows at the different floor levels.” The trial court denied plaintiffs’ motion for partial summary judgment on his Labor Law § 240(1) claim and granted defendants’ motion for summary judgment dismissing the complaint. The First Department affirmed the trial court’s decision with a dissent.
 Labor Law § 240(1) (DRA)
A majority in the Court of Appeals reversed the First Department; finding a triable issue of fact exists as to whether plaintiff knew he was expected to use the safety devices provided to him, despite the “apparent accepted practice” of entering the building through the window cut-outs from the scaffolding. The majority concluded the Appellate Division ignored evidence in the record that workers on this job site used the scaffold to go through window cut-outs to enter the interior of the building and that the scaffold was clearly inadequate for that purpose. Therefore, considering defendants’ purported acquiescence to this alleged practice, the majority found the general contractor’s standing order directing workers not to enter the building through the cut-outs is insufficient to entitle defendants to summary judgment.
Further, in context and given the other conflicting evidence in the record, a factfinder should determine whether plaintiff’s statement that he “wasn't supposed to pass through there” unambiguously establishes that he knew he was expected to use the safety devices. The majority ultimately held the § 240 (1) claim was improperly dismissed because a triable issue of fact exists as to whether plaintiff’s conduct was the sole proximate cause of his injuries.
Justice Garcia’s dissent agreed with the Appellate Division’s majority reasoning that it was undisputed that at least two fully functional devices were available to enable plaintiff to safely descend from the scaffolding platform, that plaintiff was aware of those safety devices as he built the scaffold staircase, and had used the staircase to climb the scaffolding the morning of his accident but for no good reason decided to take a shorter route by unhooking his safety harness, and tried to climb the scaffold railing and hoist himself onto a crossbeam to enter the building through an unfinished window nine to ten feet above the platform when he was injured in the process. Thus, because plaintiff chose convenience over safety, the dissent concludes that he alone is responsible for his resulting injuries.
PRACTICE POINT: Disappointed with the Court of Appeals. Plaintiff actually admitted that he “wasn't supposed to pass through there” and that creates a question of fact as to whether or not he knew not to climb through a window when there were two safe ways to descend, methods he had personally assembled by the way, just because some other knucklehead decided to climb into the build by disconnecting the safety harness, climb up onto the railing, hoist himself onto the cross-beam and enter the building through an unfinished window 9 or 10 feet above the scaffolding platform so he did it too, in spite of a direction by the GC not to do just that. My mom used to ask if I would jump off a bridge because my friends did. I might, but the result should be completely my fault, or should I say “solely” my fault.
Preston v. APCH, Inc.
February 18, 2020
Court of Appeals
Decedent and a coworker, welders employed by Alstom, were assigned to participate in the assembly of a rotor compartment weighing five tons at a plant owned by APCH. The rotor compartment was being assembled to fulfill Alstom’s contract with a customer that owned and operated a power plant in New Hampshire for the replacement of certain components of the customer’s air preheater. Decedent was positioned in front of the rotor compartment and was comparing his welding work with that of the coworker when the rotor compartment fell from its stands, thereby pinning him to the floor and causing his death.
The Fourth Department affirmed the trial decision to grant summary judgment in favor of defendants because decedent was not engaged in a covered activity under Labor Law § 240(1) inasmuch as he was performing his “customary occupational work of fabricating” and welding a rotor compartment “during the normal manufacturing process” at the plant in Wellsville, and was not involved in the construction project in New Hampshire nor involved in renovation or alteration work on the Wellsville’s plant.
Labor Law § 240(1) (DRA)
The Court of Appeals unanimously affirmed the Fourth Department’s decision that decedent’s work as a welder during the “normal manufacturing process” of fabricating rotor components for air preheaters did not involve the “erection, demolition, repairing, altering, painting, cleaning or pointing” of a building or structure (Jock v Fien , 80 NY2d 965, 968 [1992]).
PRACTICE POINT: Absent plaintiff’s participation in a protected activity, for pay as well by the way, he is not entitled to the protections of the labor law. Manufacturing is not a protected activity.
Blake v Brookfield Props. One WFC Co., LLC
February 4, 2020
Appellate Division, First Department
Plaintiff allegedly was injured while installing office furniture in a renovated office when an upper wall cabinet broke free from the wall and struck him. The trial court granted defendants’ motions for summary judgment dismissing the complaint alleging violations of the Labor Law.
Labor Law § 240(1) (DRA)
The First Department unanimously affirmed; finding that, even if plaintiff's work qualified as "altering" the building's configuration or composition within the meaning of Labor Law § 240(1) (see Joblon v Solow, 91 NY2d 457, 465 [1998]), his claim does not implicate the protections of Labor Law § 240(1) because the cabinet neither was being hoisted or secured nor could be deemed an object that required securing for purposes of the undertaking at the time it fell (see Fabrizi v 1095 Ave. of the Ams., L.L.C., 22 NY3d 658, 662-663 [2014]; Cammon v City of New York, 21 AD3d 196, 200 [1st Dept 2005]). Further, contrary to plaintiff's expert opinion, anti-dislodgement screws do not constitute “safety devices” within the meaning of Labor Law § 240(1), because such screws are not “meant to function as a safety device in the same manner as those devices enumerated in section 240(1)” (Fabrizi, 22 NY3d at 663).
PRACTICE POINT: The key to this, in my opinion, is that the cabinet was permanently installed, and thus would not need to be secured for the process of the job being undertaken.
 Labor Law § 241(6) (MAS)
Plaintiff relied on Industrial Code (11 NYCRR) regulations 23-1.5 and 1.7 to support his Labor Law § 241(6) claim. The First Department affirmed dismissal of this claim as plaintiff’s injury did not involve “safety devices” under 1.5 nor was his work area “normally exposed” to falling objects under 1.7.
 Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed dismissal of these claims, as there was no evidence that the installation of the office furniture was done other than in accordance with the direction and supervision of plaintiff's employer. There was also no evidence that defendants, had any authority or supervisory obligation over plaintiff’s employer’s work or that they actually exercised any authority or supervision over it. Finally, there was no evidence the defendants created or had actual or constructive notice of the dangerous condition presented by the faultily installed cabinet.
Marquez v 171 Tenants Corp.
February 4, 2020
Appellate Division, First Department
Plaintiff's employer was retained by Kleinberg-Levin and Kenneth and Cynthia Cook, tenant-shareholders of two units in 171 Tenants’ co-op building, to paint the common hallway outside their units. Plaintiff allegedly fell from a ladder while painting the hallway, and sued 171 Tenants, Kleinberg-Levin and Kenneth Cook asserting common-law negligence and violations of the Labor Law. 171 Tenants asserted claims against Kleinberg-Levin and both Cooks seeking contractual indemnification under their respective proprietary leases.
The trial court denied 171 Tenants Corp.’s motion for summary judgment on its contractual indemnification claims against David Kleinberg-Levin and Kenneth Cook and Cynthia Cook, and granted the cross motions of Kleinberg-Levin and the Cooks to dismiss all claims against them.
Labor Law § 240(1) (DRA)
The First Department unanimously affirmed; finding that Kleinberg-Levin and the Cooks were entitled to summary judgment dismissing all Labor Law claims against them because they are exempt from liability under the homeowners’ exemption. While the work was not performed within their residences, it was undertaken for their benefit as single-family occupants, and not for any commercial purpose. Further, that Kleinberg-Levin and the Cooks selected paint colors and wallpaper samples was deemed insufficient by the Court to cast them liable under the Labor Law.
PRACTICE POINT: As there were 2 tenants and the work was done specifically for the benefit of the residential tenants/owners and as single family occupants. It is the purpose of the work being done that controls and provides the exemption for the defendants.
 Indemnity Issues in Labor Law (SEP)
171 Tenant’s claim for contractual indemnity against Kleinberg-Levin and the Cooks was dismissed where they did not engage in an “act” contemplated by the agreement. Specifically, the lease agreement provided that tenants would indemnify 171 Tenants for any loss caused “wholly or in part to any act…” The act of engaging a painter was not an “act” as contemplated by the agreement.
O’Brian v 4300 Crescent L.L.C.
February 6, 2020
Appellate Division, First Department
Plaintiff allegedly was unloading windows weighing at least 175 pounds from a tractor trailer when a stack of eight or nine windows that were stored vertically at an angle against the trailer wall tipped over and fell on him. He claims that the coworker who was holding up the stack while he was transferring one of the windows onto an A-frame could no longer support it due to the weight. The trial court granted defendants’ summary judgment motion to dismiss the Labor Law § 240(1) claim and granted third-party defendants’ motion seeking dismissal of the third-party complaint.
Labor Law § 240(1) (DRA)
The First Department unanimously reversed; denying defendants’ motion as they were not entitled to summary judgment because the accident arose from an elevation-related risk contemplated by the statute. Further, the Court held plaintiff's injuries flowed directly from the application of the force of gravity to the windows, and the elevation differential was not de minimis, as the combined weight of the windows could generate a significant amount of force during the short descent (see Wilinaksi v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 9-10 [2011]; Runner v New York Stick Exch., Inc., 13 NY3d 599, 605 [2009]).
The Court found a triable issue of fact as to whether the stack of windows was required to be secured and on plaintiff’s claim that the trailer was tilted and required additional securing. The Court further held that summary judgment was also not warranted because of the parties’ dispute as to whether a protective device prescribed by § 240(1) could have provided adequate protection.
PRACTICE POINT: There have been several cases with items tipping or falling on plaintiffs inside a trailer. The key is always whether the item needed to be secured. Here, the existence of a further factor, the fact that the truck was parked in such a manner as to cause additional risk of the windows falling was considered by the Court. In general, where items tip during unloading or loading of a truck, they are items in need of securing, or at least, a question of fact exists.
Indemnity Issues in Labor Law (SEP)
Considering the First Department’s decision, the third-party complaint alleging contribution as well as common-law and contractual indemnification against Pioneer Windows was reinstated.
Natoli v City of New York
February 11, 2020
Appellate Division, First Department
The First Department previously found a triable issue of fact as to the weight of the wooden pallet/skid involved in plaintiff’s accident, and whether a safety device was therefore required by Labor Law § 240(1) when plaintiff and a coworker were attempting to move it. At trial, plaintiff's expert testified that, based on its size, weight, and configuration, it was unsafe for two laborers, such as plaintiff and his coworker, to manually move the pallet/skid, and that a safety device, such as a hoist, crane, gantry crane, or panel truck, was required.
The jury found in favor of plaintiff on his Labor Law §240(1) claim. The trial court denied defendants’ motion to set aside the verdict, and granted plaintiff's cross-motion to set aside the verdict to the extent of directing a new trial on the issues of past and future pain and suffering unless defendants stipulated to an increase in the jury's awards for those categories of damages.
Labor Law § 240(1) (DRA)
The First Department unanimously affirmed; finding the testimony afforded the jury a valid line of reasoning and permissible inferences to conclude that defendants violated Labor Law § 240(1), and finding no evidence on the trial record “that the jury was substantially confused” by the verdict sheet and the charge and thus was unable to make a proper determination. The Court further held that the jury was entitled to credit the testimony of plaintiff's treating orthopedic surgeon and neurologist, as well as that of his expert economist, which was legally sufficient to support the awards for future medical expenses and future lost earnings with the requisite degree of reasonable certainty.
Finally, plaintiff's failure to object to the jury’s award of $0 for both past and future pain and suffering as inconsistent with the jury’s awards for past and future lost earnings and future medical expenses did not preclude the Court from deciding whether the jury’s failure to award damages for pain and suffering was contrary to a fair interpretation of the evidence and constituted a material deviation from what would be reasonable compensation.
PRACTICE POINT: In its prior trip to the First Department, the Court held that the weight of the pallet was in question and thus, the need for a safety device was unknown. During the trial, the jury determined that a safety device was needed and thus found for plaintiff. The use of an expert in the motion stage could assist in a determination of the sufficiency of a safety device. While an expert is generally not able to opine on the need for a safety device, it is helpful to have an expert to opine as to the sufficiency of the device, which may eliminate the question of fact.
Letterese v A&F Commercial Bldrs. L.L.C
February 13, 2020
Appellate Division, First Department
Plaintiff fell over a protruding rebar dowel that allegedly blended into the surrounding area. The trial court granted A & F’s summary judgment motion to dismiss the Labor Law §§ 241(6), 200 and common-law negligence claims, and granted Sol Goldman summary judgment dismissing the Labor Law § 241(6) claim against it.
Labor Law § 241(6) (MAS)
The affixed rebar dowel over which plaintiff fell was deemed an integral pat of the work being performed; therefore, the First Department affirmed dismissal of the Labor Law § 241(6) claim predicated upon an alleged violation of regulation 1.7(e)(2) because it did not apply to the facts.
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed dismissal of plaintiff’s claims against A&F for violations of Labor Law § 200 and common-law negligence as the condition that led to plaintiff’s accident, a protruding rebar dowel that allegedly blended into the surrounding area, was created by the means and methods of the work of plaintiff's employer and its subcontractor. Further, the Court found A&F did not exercise supervisory control over plaintiff’s work or his employer or its subcontractor; nor did it direct the contractors to cease using the orange rebar caps, upon discovering the caps were pulling off waterproofing when removed. Significantly, the Court held A&F’s knowledge that plaintiff's employer would stop using the orange caps was insufficient to impart liability.
Lind v Tishman Constr. Corp. of N.Y.
February 13, 2020
Appellate Division, First Department
Plaintiff was allegedly injured when the articulating lift on which he was working suddenly picked up speed as he backed it down the ramp that led to the underground parking garage. He released the lift’s joystick to engage the brakes, but due to “slippery sludge” on the ramp, the lift skidded and crashed into a curb, causing him to be “ricocheted” around the lift basket. Tishman entered into a Construction Management Agreement with The Port Authority, the project owner, to provide construction management services on the project. The agreement and other documents refer to Tishman-NY as the construction manager. The trial court denied plaintiffs’ motion for partial summary judgment on the Labor Law §§ 240(1) and 241(6) claims or, in the alternative, to strike defendants’ answer for failure to comply with discovery demands.
Labor Law § 240(1) (DRA)
The First Department unanimously reversed; finding defendants can be held liable as a statutory “agent” of the Port Authority based on the contract documents, which not only impose the responsibility to coordinate the work but also a broad responsibility for “overall job site safety,” including the implementation of the Port Authority’s Safety Health and Environmental Program, as well as measures to ensure worker safety, thereby granting the construction manager “the ability to control the activity which brought about the injury” (Walls v Turner Constr. Co., 4 NY3d 861, 863-864 [2005]).
Moreover, the Court held plaintiff was entitled to summary judgment on the Labor Law § 240(1) claim because his testimony established prima facie that the articulating lift was a safety device and its failure to protect him from the elevation-related risk was the proximate cause of his injury. Accordingly, the Court deemed the existence of a question of fact as to his second theory, that his accident was also caused by sludge on the ramp, was irrelevant.
PRACTICE POINT: As loth as you all know I am to ever disagree with an appellate court I just can’t see how this is a § 240(1) case. So, the plaintiff is working at a height, on a construction project, and being paid, suing an owner. So, we have an appropriate plaintiff, an appropriate defendant, engaged in a protected activity and working at a height. But what I fail to understand is how there is any elevation related or gravity induced injury here. Had the plaintiff been in a ground level cart and he ran the lift into a curb and was caused to ricochet around the cart sustaining injury would that then be a § 240(1) case. There no indication that it was the height of the lift that caused the injury. That said recall that it is not necessary to actually be injured in a fall to be afforded the protection of § 240(1), injury sustained in avoiding the fall can also be the basis of a § 240(1) claim, but there is no allegation that he was injured preventing falling out of the lift.
Touray v HFZ 11 Beach St. LLC
February 13, 2020
Appellate Division, First Department
Plaintiff and his coworkers were moving an A-frame cart, loaded with approximately 16 cement boards measuring 4’ x 8’ in dimension and weighing approximately 100 pounds each, when its wheel became stuck and the cart would not move. Plaintiff and his coworkers then pushed and pulled the cart to free it, and, in the process, the cart and the boards suddenly tipped, with the boards landing on plaintiff’s left leg. The trial court granted plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim.
Labor Law § 240(1) (DRA)
The First Department unanimously affirmed; finding plaintiff established prima facie entitlement to partial summary judgment on his Labor Law § 240(1) claim, and, given the weight and height of the cement boards on the A-frame cart, the elevation differential was within the purview of the statute. The Court rejected the opinion of defendant’s expert that the A-frame cart was an adequate safety device for the undertaking and that plaintiff’s injuries were proximately caused by the workers’ actions in trying to free the stuck cart, rather than any inadequacy in safety devices, was contradicted by the facts.
PRACTICE POINT: Sheet rock or concrete board falling from a cart has gone both ways in the past, here the court appears to focus on the fact that the boards were not secured to the cart and while the cart and board tipped, it was the boards that injured the plaintiff. In addition while not mentioned the fact that it was not just the plaintiff who was trying to free the cart would likely mean that it was not the plaintiff’s sole proximate cause for the accident.
Vohra v Mount Sinai Hosp.
February 13, 2020
Appellate Division, First Department
Plaintiff was allegedly injured while dismantling a scaffold. Rock was a statutory agent of the general contractor, which had hired it for the installation and dismantling of scaffolding at the project. The trial court granted plaintiffs’ motion for partial summary judgment on the Labor Law § 240(1) claim against Rock, granted Mount Sinai’s motion for summary judgment on their common-law indemnification claim against Rock, and denied Rock’s summary judgment motion seeking dismissal of the claims and crossclaims.
Labor Law § 240(1) (DRA)
The First Department unanimously affirmed; finding that trial court properly granted partial summary judgment in favor of plaintiffs and against Rock on the Labor Law § 240(1) claim because the record showed that Rock was a statutory agent of the general contractor, which had hired it for the installation and dismantling of scaffolding at the project.
PRACTICE POINT: Plaintiff was injured while dismantling the scaffold that the contractor (Rock) was a valid defendant as a statutory agent for that specific task. Had that been a statutory agent for HVAC they would not have been found to be a statutory agent for scaffold dismantling.
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed denial of Rock’s motion for summary judgment as to Labor Law § 200 and common-law negligence because triable issues remain as to whether Rock had notice of a dangerous or defective condition on the work site as well as whether the injury was caused by the manner in which the work was performed.
Indemnity Issues in Labor Law (SEP)
Because Rock exercised supervision, direction and control over the plaintiff’s work, the court found that Mt. Sinai was entitled to common law indemnification.
Peiper’s Point – This decision, quite candidly, is wrong. A party is only liable for common law indemnification if they are determined to have some actual negligence. Here, with the Labor Law 200 and Common Law Indemnity claim finding a question of fact as to Rock’s negligence, it follows that Mt. Sinai’s claims for common law indemnity were likewise premature due to the very same question of fact.
Ayars v Port Auth. of N.Y. & N.J.
February 18, 2020
Appellate Division, First Department
Plaintiff sustained injuries while working in a building owned by the Port Authority, a bistate entity created by a federally approved compact. The trial court denied the Port Authority’s motion for summary judgment seeking dismissal of the Labor Law §§ 240(1) and 241(6) claims.
Labor Law § 240(1) (DRA)
The First Department unanimously affirmed; rejecting the Port Authority’s arguments that as a federally approved interstate compact, it was not subject to New York Labor Law.
PRACTICE POINT: There is one of these cases ever month or so, just remember that the Port Authority is a valid defendant in a Labor Law case where the accident occurs in New York State.
Clemente v 205 W. 103 Owners Corp.
February 18, 2020
Appellate Division, First Department
Plaintiff allegedly was injured while renovating a co-op apartment unit owned by 103 Coop in a building owned by Owners Corp., when the bathroom ceiling collapsed on him. CIDH acted as general contractor. The renovation included, among other things, the demolition of two of the existing bathroom walls and moving the location of one. Plaintiff had just finished stripping plaster from two of the bathroom walls when the accident occurred. The trial court denied plaintiff summary judgment on his Labor Law §§ 240(1) and 241(6) claims and granted summary judgment to Owners Corp. and the cross-motion of 103 Coop and CIDH dismissing the complaint.
Labor Law § 240(1) (DRA)
The First Department unanimously reversed; finding an issue of fact as to whether the ceiling was in such an advanced state of disrepair due to water damage that plaintiff’s work exposed him to a foreseeable risk of injury from an elevation-related hazard (the falling of the ceiling) and whether the absence of a type of protective enumerated safety device under § 240(1) was a proximate cause of his injuries.
The Court rejected defendants’ contention that plaintiff’s affidavit, indicating he had observed water stains prior to the ceiling collapse, was a feigned attempt to avoid his prior deposition testimony because plaintiff testified at his deposition that, before the accident, he had not observed any portion of the ceiling damaged or missing. The Court thus found that there is a difference between damage and stains; therefore, that plaintiff did not notice any breaks or missing pieces in the ceiling does not mean that he did not notice any stains.
PRACTICE POINT: Once again we wade into the need for protective devices for permanent structures. Here a permanent ceiling fell on plaintiff. The risk of failure by a permanent structure such as a ceiling must be foreseeable. The court has found a question of fact as to forseeability as the plaintiff claimed in an affidavit that he saw water damage in spite of the prior testimony that the ceiling was undamaged.
Labor Law § 241(6) (MAS)
The First Department reversed the trial court and found an issue of fact whether regulations 3.3(b)(3) and (c), involving demolition, were violated or whether any such violation was a proximate cause of plaintiff’s injuries because defendants failed to demonstrate that plaintiff was not engaged in demolition work under Labor Law § 241(6).
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department held the water stains on the bathroom ceiling could have provided constructive notice of a dangerous condition (a prerequisite to liability under Law Law § 200 for a hazardous condition on the premises). Therefore, the Court held that summary judgment dismissing plaintiff’s § 200 and common-law negligence claims was improperly granted.
Indemnity Issues in Labor Law (SEP)
Considering plaintiff’s Labor Law claims were re-instated against Owners Corp., the First Department remanded the Owners Corp.’s motion for contractual indemnification against 103 Coop. for consideration by the trial court.
Carpentieri v. 309 Fifth Ave., LLC
February 20, 2020
Appellate Division, First Department
Plaintiff allegedly was injured while applying masking tape to a wall fixture to prepare for painting while standing on the top plank of a scaffold about four feet above the floor, when the plank flipped up, causing him to fall to the floor. Photos of the scaffold showed it had no guardrails, and plaintiff was not supplied with any other safety devices. The trial court granted plaintiffs’ motion for partial summary judgment on his Labor Law § 240(1) claim against MEPT and Lend Lease.
Labor Law § 240(1) (DRA)
The First Department unanimously affirmed; finding plaintiff made a prima facie showing that his injuries were caused by a violation of Labor Law § 240(1) and defendants failed to raise a triable issue of fact as to whether the scaffold was an inadequate safety device. Testimony by a site safety manager that he saw another scaffold at some unspecified time after the accident, and that it did not appear defective or consistent with plaintiff’s testimony or photos, did not raise an issue of fact. The Court further held that at best, defendants submitted admissible evidence establishing plaintiff's comparatively negligence, which means nothing under § 240(1).
PRACTICE POINT: Once again we are provided with an opportunity to discuss the necessary elements to a sole proximate cause defense. 1) There must be an appropriate safety device which is 2) available to the plaintiff and the plaintiff must 3) have been directed to use or knew he was expected to use the appropriate and available safety device where the plaintiff 4) misuses or fails to use or misuses the device 5) for no good reason. Here the safety device provided to the plaintiff did not protect him and was thus not appropriate.
Charles v Summit Glory LLC
February 20, 2020
Appellate Division, First Department
Plaintiff allegedly injured when his right forearm was struck by a metal shard that flew from the “mushroomed” head of a “drift pin” that a coworker was hammering with a sledgehammer. A drift pin is a tapered metal hand tool that is hammered into the holes of steel beams to align them, and once the holes are aligned, the drift pin is removed, and a bolt is put through the holes to secure the beams. Defendants’ proof showed the subject drift pin was about one foot long, one inch in diameter and “round.” The trial court granted defendants’ motion to dismiss the Labor Law § 241(6) cause of action predicated on an alleged violation of regulation 1.10(a).
Labor Law § 241(6) (MAS)
Regulation 1.10(a) provides that “[e]dged tools shall be kept sharp and shall be maintained free from burrs and mushroomed heads.” The First Department previously found that regulation inapplicable to tools that have “flat and/or round edges” (Pol v City of New York, 126 AD3d 526, 626 [1st Dept 2015]; lv denied 25 NY3d 912 [2015]), and since plaintiff failed to submit any proof showing that the drift pin was a tool with a sharp edge, the First Department affirmed dismissal of this claim.
Reyes v Roman Catholic Church of St. Raymond
February 25, 2020
Appellate Division, First Department
Plaintiff, an employee of third-party defendant ABM, was performing work allegedly supervised, directed, and controlled by St. Raymond’s facilities manager, when he was injured. The trial court granted St. Raymond’s motion for summary judgment dismissing the Labor Law § 240(1) claim and denied that portion of the motion seeking summary judgment on the third-party contractual indemnification claim.
Labor Law § 240(1) (DRA)
The First Department unanimously affirmed; finding plaintiff’s claim against St. Raymond is barred by Workers’ Comp. Law § 29(6) because its facilities manager supervised, directed and controlled plaintiff's work, which was also completed solely for the benefit of St. Raymond.
PRACTICE POINT: The use of special employee status to obtain the protection of workers' comp exclusive remedy defense is often not recognized by a contractor or owner. It can be especially effective for a crane crew as generally every move made by the operator and hooker is directed by the erecting contractor and in accidents of that type it is generally the erector’s employees who are injured thus making them co-employees, eliminating the cause of action under § 240(1).
Indemnity Issues in Labor Law (SEP)
A question of fact persisted as to whether the incident involving plaintiff arose from ABM’s negligence. Where the contract requires that the loss arise from ABM’s negligence, it follows a final determination on indemnity was not possible on this Record.
Kehoe v 61 Broadway Owner LLC
February 27, 2020
Appellate Division, First Department
Plaintiff allegedly was injured when the pit ladder that he was ascending in an elevator shaft vibrated and caused him to fall about 20 feet to the floor of the shaft. The trial court denied plaintiffs’ motion for summary judgment under Labor Law §§ 240(1), granted defendants’ motion for summary judgment dismissing the complaint, denied defendants summary judgment on the contractual indemnification claim against Marcato Elevator Company (Mercate), and dismissed the claims for contractual indemnification against Marcato and City Elevator.
Labor Law § 240(1) (DRA)
The First Department unanimously reversed; finding the permanently affixed ladder was a safety device within the meaning of Labor Law § 240(1), as plaintiff was only able to access the elevator pit by ladder, and the ladder was "effectively furnished and operated ... within the meaning of the statute" as a safety device (Priestly v Montefiore Med. Center/Einstein Med. Ctr., 224 AD2d 270, 271 [1st Dept 1996]. While an unsecured ladder that moves or shifts constitutes a prima facie violation of Labor Law § 240(1) the Court held the ladder from which plaintiff fell here was secured to the structure, and, other than allegedly vibrating, it did not move, shift or sway. Therefore, considering those circumstances, the Court found an issue of fact existed whether the secured, permanently affixed ladder that allegedly vibrated provided proper protection for plaintiff.
The Court also found that at the time of his accident, plaintiff was performing not routine maintenance but repair work, and defendants failed to establish plaintiff was the sole proximate cause of his accident as they submitted no evidence plaintiff knew that he was supposed to use a harness for climbing ladders or that he disregarded “specific instructions” to do so. Further, to the extent the ladder failed to provide proper protection, the Court held that plaintiff’s failure to use a harness amounts at most to comparative negligence, which is not a defense under § 240(1).
PRACTICE POINT: Back to permanent fixtures, where the permanent fixture is deemed to be a safety device, generally a secured ladder to a pit, to a roof or to a higher section of roof, and it fails to protect the plaintiff by shifting, falling or otherwise moving, then it is a § 240(1) case.
Von Hegel v Brixmor Sunshine Sq., LLC
February 5, 2020
Appellate Division, Second Department
Plaintiff, as a maintenance specialist for nonparty RFE, was assigned to perform repair work at a restaurant on premises owned by Brixmor and leased by RT d/b/a Ruby Tuesday. Plaintiff allegedly was injured while working at the premises, when the feet of a ladder on which he was working slipped, causing him to fall. The trial court denied defendants’ motion for summary judgment dismissing the Labor Law § 240(1) claim and granted plaintiffs’ cross motion for summary judgment on that cause of action.
Labor Law § 240(1) (DRA)
The Second Department affirmed; finding plaintiff’s uncontroverted testimony that the accident occurred because the feet of the ladder slipped away from the wall was sufficient to establish, prima facie, plaintiffs’ entitlement to summary judgment on the issue of liability under Labor Law § 240(1). Although defendants contended there was no violation of Labor Law § 240(1) because adequate ladders and safety devices were available to the injured plaintiff through his off-site employer, they submitted no evidence showing that appropriate safety devices were “readily available” to plaintiff within the meaning of the statute.
PRACTICE POINT: Where, as here, the ladder moves, slips, shimmies, vibrates, shakes, slides, twists, bounces, leaps or bounds, there will be a prima facie case under § 240(1). Where, as here the defendant attempts to establish a sole proximate cause defense based on the plaintiff failing to use an appropriate safety device which was available, it needs to be available to the plaintiff on site and he needs to know it is available.
Boody v El Sol Contr. & Constr. Corp.
February 19, 2020
Appellate Division, Second Department
Plaintiff was employed as a construction worker for nonparty Caribe, a subcontractor hired by defendant general contractor El Sol, to install temporary scaffolding for a repair project on the Cross Bay Veterans Memorial Bridge in Queens. To complete its work, Caribe in turn retained the defendant North East Marine, Inc., to provide tugboats and work barges, which transported Caribe’s employees, supplies, and equipment around the work site.
Plaintiff allegedly was injured while he was attempting to cross between two barges positioned on either side of a pier supporting the bridge. Plaintiff claimed that as he was walking, one of the mooring lines from the tug-barge combination tightened and caught his leg, pinning it against the pillar next to which he was walking. The trial court denied defendant's motion for summary judgment dismissing the Labor Law §§ 200 and 241(6) claims against it.
Labor Law § 241(6) (MAS)
The Second Department reversed and granted El Sol’s motion to dismiss this claim based on regulation 1.7(e)(1) as it was inapplicable to the facts of this case.
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department reversed the trial court and granted El Sol’s motion as to the Labor Law § 200 and common-law negligence claims. El Sol met its burden of proving the accident did not arise from a dangerous or defective premises condition but from the method and manner in which the work was performed. Further, the Court held El Sol established that it did not exercise supervision or control over the injury-producing work. As plaintiff failed to raise a triable issue of fact in opposition, the trial court should have granted the motion and dismissed these claims.
Alexandridis v Van Gogh Contr. Co.
February 26, 2020
Appellate Division, Second Department
Plaintiff allegedly was injured when he fell while working on a ladder at a home owned by the Meskouris defendants, Christopher and Filantey. At the time of the accident, Christopher Meskouris (Meskouris) and his cousin Nick Moshouris were each 50% owners of defendant Van Gogh Construction, a contracting company that did residential interior apartment renovations in Manhattan. Plaintiff had worked as a painting subcontractor for Van Gogh Construction since 2010 and had performed approximately 50 to 60 jobs for the company from that time until the accident occurred in June 2013. Approximately one month prior to the accident, Meskouris discussed with plaintiff painting the exterior of the Meskouris defendants’ home. According to plaintiff, he told Meskouris “for you, I am going to do half price,” 300 for the day’s work, because Van Gogh Construction was going to pay the balance due to him from several prior jobs.
According to Meskouris, plaintiff and his partner, Mario, told him they would paint the house for free, as a favor for all the work Meskouris had given them, and in response Meskouris told them he would “take care” of them, meaning that he would give them more work. Meskouris purchased the painting materials used to paint the house with a corporate credit card. On the day of the accident, plaintiff and Mario arrived at the Meskouris defendants’ home with supplies for the job, including a ladder, and began painting. Around 12:30 p.m., plaintiff went to paint the interior of the railing of a balcony that was over the garage. He had placed the ladder so that it was resting against and leaning on the slab of the balcony. He attempted to climb from his ladder over the railing onto the balcony while holding onto the balcony’s railing, when the railing collapsed, causing him to fall to the ground below.
The trial court (1) granted the Meskouris defendants’ motion for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims (2) denied their motion to dismiss the Labor Law § 200 and common-law negligence claims and all crossclaims against them; (3) granted the Van Gogh defendants’ motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims; (4) denied the Van Gogh defendants’ motion for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims; and (5) denied plaintiffs’ cross motion for summary judgment on the Labor Law § 240(1) claim against the Van Gogh defendants.
Labor Law § 240(1) (DRA)
The Second Department affirmed; finding that contrary to plaintiffs’ contention, the Meskouris defendants established they did not control the method or manner of plaintiff’s work. In opposition, the Court held plaintiffs failed to raise a triable issue of fact because instructions about aesthetic design matters, or retention of the limited power of general supervision, do not constitute direction or control as those terms are used in Labor Law § 240.
The Court also held the Van Gogh defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the Labor Law §§ 240(1) and 241(6) claims against them because they failed to demonstrate that they were not owners, contractors, or statutory agents under those provisions of the Labor Law. The Van Gogh defendants also did not show that Meskouris was acting individually, and not as an officer of the Van Gogh defendants. For the same reasons, the Court agreed with the trial court’s determination denying plaintiffs’ cross-motion for summary judgment on the Labor Law § 240(1) claim against the Van Gogh defendants.
PRACTICE POINT: The issue here is to separate the actions of the individuals as either personal (as the property owner) or as the contractor who hired the subcontractor who was injured. As the owner there was not the necessary element supervision, control or direction of the injury producing work and they were entitled to the exemption for homeowners. As the contractor where there is a question of whether or not there was going to payment to the injured plaintiff for his work or if it was voluntary. Recall that even if the painting contractor, plaintiff boss, was volunteering to do the work if the plaintiff was to be paid then he would be a “person so employed” and a valid plaintiff. In addition there remains a question whether the owner/contractor was acting in the capacity a the owner of the property or as the contractor doing the work and only a jury can determine questions of fact such as that
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed denial of defendants’ motion for summary judgment as to Labor Law § 200 and common-law negligence. Where, as here, a plaintiff contends that an accident occurred because a dangerous condition existed on the premises where the work was being undertaken, an owner moving for summary judgment dismissing § 200 and common-law negligence claims must make a prima facie showing that it neither created the dangerous condition nor had actual or constructive notice of it. Further, when a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed.
The Court rejected defendants’ position that the alleged dangerous condition of the balcony railing was latent and not discoverable upon a reasonable inspection as they did not meet their prima facie burden. According to plaintiff’s testimony, immediately after the accident, he observed the railing after it had collapsed and “it was rotten” with rusty nails attached to the wood. Thus, there was a question of fact whether the defendants had constructive notice of the condition.
Tukshaitov v Young Men's & Women's Hebrew Assn.
February 26, 2020
Appellate Division, Second Department
The YMWHA hired third-party defendant Precision to perform maintenance and repairs on the elevators. YMWHA also hired Sierra to draft the work specifications for the elevator modernization project, conduct progress inspections, and generate progress reports for YMWHA. Plaintiff was employed as a mechanic's assistant by Precision.
Upon arrival to the site, plaintiff and his supervisor unloaded the necessary tools from a Precision van, including, but not limited to, hoists and special belts. They proceeded to the elevator machine room, first by taking an elevator up to the penthouse floor, and then by ascending a “special staircase” to access the machine room. As instructed by Precision, plaintiff and his supervisor removed a controller and a generator from one of the elevators and, using hoists, they lowered the equipment through a shaft located in the floor of the machine room, and down to the penthouse floor of the building, where the equipment was subsequently transported to the ground floor via another elevator.
The elevator machine room shaft is a two-level rectangular opening in the floor that connects the machine room to the penthouse floor. To open the shaft, one must first remove the top doors, which are composed of two metal sheets, each with attached metal handles. After the shaft doors are opened, they must be set aside, as there are no hinges and the doors are not otherwise connected to the shaft. Once the top doors are removed, the lower portion of the shaft is accessible through an access panel, which is opened, first, by sliding pistons to unlock the panel, and then by lowering the panel open, by rope, which panel remains attached to the shaft by hinges.
After plaintiff and his supervisor removed the equipment and loaded it into the Precision van, they, along with two other Precision workers who were at the building working on a different elevator-related task, returned to the machine room to, among other things, close up the shaft. First, one of the workers pulled the rope to close the hinged lower shaft access panel, and then plaintiff hammered in the sliding piston locks to secure it. Plaintiff and his coworkers went on to perform different tasks, leaving the upper portion of the shaft open, with the metal doors still to be closed and secured.
Plaintiff, without instruction or supervision, unilaterally decided to close the metal shaft doors by himself, by stepping into the shaft, standing on the hinged access panel, and pulling the first of the two doors into place. When plaintiff started pulling the metal door toward him, the access panel swung open, and plaintiff fell approximately 10 to 14 feet to the floor below, suffering injury.
The trial court granted separation motions of defendants for summary judgment dismissing the complaint and denied plaintiff’s motion for summary judgment on the issue of liability.
Labor Law § 240(1) (DRA)
The Second Department unanimously affirmed the trial court’s finding that defendants submitted plaintiff’s deposition testimony demonstrating, prima facie, that it was plaintiff’s decision to climb into the shaft and stand on the access panel in an attempt to close the doors, while knowing that Precision’s procedure was to stand on the floor of the machine room with another coworker, and close the doors from above. He also knew that his supervisor would not have approved of him standing on the access panel. The Court held defendants established, as a matter of law, that plaintiff’s actions were the sole proximate cause of his injuries, and plaintiff failed to raise an issue of material fact.
PRACTICE POINT: This sole proximate cause defense is actually more of a recalcitrant worker case as the plaintiff was not merely failing to use or misusing a safety device, but was doing something he had been specifically told not to do, and critically, when by doing it the way the plaintiff was instructed he would not have been injured. This is different that simply telling a plaintiff not to do something as it is the addition of telling him not just not to do something but actually telling him to do the job a specific was and having him not do so.
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed dismissal of the Labor Law § 200 and common-law negligence claims, finding defendants established, prima facie, that they did not have the authority to supervise or control plaintiff’s actions and did not have actual or constructive notice of the alleged dangerous condition. In opposition, the Court held plaintiff failed to raise a triable issue of fact.
Vitale v Astoria Energy II, LLC
February 26, 2020
Appellate Division, Second Department
Astoria Energy was the owner of property, and SNC-Lavalin was the construction manager for the project. At the time of the accident, plaintiff was working as a surveyor at the site, performing anchor bolt verification and tightening in preparation for a concrete pour at a footing for a boiler on the site. While traversing an uncovered rebar grid, plaintiff allegedly was injured when he lost his balance and his left leg fell through one of the square openings of the rebar grid.
A jury trial was held on the Labor Law § 200 claim. At the close of evidence on the issue of liability, the trial court granted defendants motion for judgment as a matter of law dismissing the complaint, finding, as a matter of law, that defendants owed no duty to plaintiff because traversing the rebar grid was an inherent part of his job. The trial court further found the danger of walking across the rebar grid was readily observable and known to plaintiff based upon his experience as a surveyor. Although plaintiff argued that falling through an uncovered rebar grid was not an inherent risk of anchor bolt verification, the trial court also denied plaintiff’s motion to set aside the directed verdict in favor of the defendants and for a new trial,
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department reversed the trial court’s order and remitted it for a new trial on liability. The Court held Labor Law § 200 is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work. The duty, however, is subject to recognized exceptions. It does not extend to hazards which are part of or inherent in the very work which the contractor is to perform, or where the contractor is engaged for the specific purpose of repairing the defect.
In this case, however, the Court found the trial court improperly decided the factual questions of whether traversing an uncovered rebar grid was an inherent risk in plaintiff’s work as a surveyor, and whether the uncovered rebar grid was a dangerous condition under the circumstances. Plaintiffs’ evidence made out a prima facie case, and the Court held disputed factual issues existed which should have been resolved by the jury. Since the trial court failed to draw “every favorable inference” in favor of plaintiffs on the motion and because the trial court resolved disputed issues of fact that were the province of the jury, a retrial was proper.
Smith v State of New York
February 27, 2020
Appellate Division, Third Department
Decedent was employed as a bridge painter by a company hired to perform work on a state-owned bridge. He and his coworkers were systematically disassembling a platform, suspended under the bridge, by unfastening and removing the corrugated metal sheets that made up the base of the platform. As decedent was working outwards from the center of the platform, two of the platform's cables snapped, causing the platform to cave in and collapse. Decedent slid into the canal, where, despite rescue efforts, he ultimately drowned. The Court of Claims partially granted defendant’s summary judgment motion by dismissing the Labor Law § 200 and common-law negligence claims, and partially granted claimant’s cross-motion for summary judgment under § 240(1).
Labor Law § 240(1) (DRA)
The Third Department unanimously affirmed; finding claimant established prima facie entitlement to summary judgment under § 240(1) through evidence demonstrating that two of the cables supporting the platform snapped, thereby causing the center of the platform to cave in and decedent to slide into the canal. The Court also held the Court of Claims properly rejected defendant’s argument that decedent’s failure to avail himself of certain safety devices, including wearing a life jacket and attaching his harness and lanyard to an anchorage point on the platform, was the sole proximate cause of the accident, aptly reasoning that those omissions could not be the sole proximate cause of the accident when the precipitating event was the failure of the platform itself. As noted by the Court of Claims, decedent’s failure to use additional safety devices amounts, at most, to comparative negligence, which does not preclude liability under Labor Law § 240 (1).
PRACTICE POINT: This seems to be a difficult concept for many to appreciate. There are two separate safety devices here, the scaffold and the personal flotation device (pfd). Assuming that the plaintiff knew he was to wear the pfd at all times and that his supervisor had handed it to him two minutes before the cables snapped and told him to put it on and he refused, it is still not a sole proximate cause defense even though had he been wearing the lifejacket he would have sustained absolutely no injury. The cable snapped and a safety device failed, that is clearly a violation of §240(1) and a substantial factor in the injury producing accident, so nothing else can be the SOLE proximate cause of the injury, it would be simply comparative fault on the plaintiff which is not allowed in a §240(1) case. Draconian, but it is the law.
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