Labor Law Pointers

 

Volume V, No. 4

Wednesday, February 3, 2016

 

A Monthly Electronic Newsletter Addressing

New York State Labor Law

 Decisions and Trends

 

From the Editor:

 

Do you have a situation; we love situations and are here to help with yours.

 

We have two new and exciting topics to cover here this month. 

 

First we have a new Chief Judge of the Court of Appeals, Janet DiFiore.  We have, following our usual plan, gone back and pulled all of her prior decisions to see if we can get a handle on her position on labor law cases.  Turns out we did not need to spend much time.  Judge DiFiore sat as a Family Court Judge in Westchester County Court between Jan. 1999 to Dec. 2002 when she became NY Supreme Court Justice and presided over almost exclusively criminal cases for 2 ½ years.  She has no reported labor law cases.  She then was elected Westchester County DA, the position from which she was appointed to the Chief Judge of the Court of Appeals position.  That means we have no idea of her tendencies as they relate to labor law cases.  We wish her well and look forward to seeing decisions from the Court.

 

Second is the Scofield v Avante Constr. Corp. case from the Second Department.  We have been following the second for some time as the decision on shifting ladders has moved slowly from if the ladder moves and the plaintiff falls it is a 240(1) case to comments pointing out that the plaintiff was not the one who positioned the ladder and thus it could not be his sole proximate cause to finally January 27, 2016 when the second department decided that in a case where the plaintiff sets the ladder and it moves causing him to fall that it is, in fact, the plaintiff’s sole proximate cause of the fall and dismisses the case.  I urge you to read the case carefully, this is, or at least could be, the start of as big a trend as Runner.  There will be a discrepancy between the departments and hopefully this will be pushed up the ladder to the Court of Appeals to decide.  Logic is on the side of the second, but logic does not always carry the day.

 

As always let us know if you have any questions regarding any topic labor law related, and remember that we are always here to help with any training you may want to keep your teams up to date.  Hope everyone is having a good and safe winter, we do not have any snow here in Buffalo, a far cry from last year, and my family is not happy to see grass where we usually see snow and skiers.

 

Have a great February and see you next month.

 

David

 

 

 

 

 

David R. Adams
Hurwitz & Fine, P.C.
424 Main Street

Suite 1300 Liberty Building
Buffalo, New York 14202
Phone:  716.849.8900
Direct:  716.849.8916

Fax:  716.855.0874

Cell:  716.553.6901
Email:  dra@hurwitzfine.com
H&F Website:  www.hurwitzfine.com
 

 

Labor Law Pointers is published the first Wednesday of each month.  If you know of others who may wish to subscribe to this free publication, please feel free to forward it.  If you wish to subscribe or unsubscribe, please send an e-mail to dra@hurwitzfine.com or call the Editor/Labor Law Team Leader David R. Adams directly at (716) 849-8916.

 

Tuzzolino v Consolidated Edison Co. of N.Y.

January 7, 2016

Appellate Division, First Department

 

Plaintiff was standing on an extension ladder when it “slipped out from beneath” him, causing him to fall.  He treated with a physiatrist, a licensed clinical social worker, and a spinal surgeon who ultimately performed lumbar laminectomy surgery.  After commencing an action and disclosing medical records, defendant served nonparty subpoenas on plaintiff’s treatment providers.

 

The trial court granted plaintiff’s motion to quash the subpoenas and for a protective order to stay depositions although defendant argued depositions were necessary because of alleged inconsistencies in the records and discrepancies between their records and plaintiff’s deposition.

 

Labor Law § 240(1) (DRA) 

 

As defendant sought testimony from plaintiff’s physicians regarding whether the spinal surgery was premature or unwarranted, the First Department held that defendant failed to show that the testimony sought is unrelated to diagnosis and treatment and is the only method of discovering the information sought.  The court noted that if defendant believes the surgery was unwarranted, defendant’s expert has the records available and can offer their own testimony as to whether the surgery was warranted.

 

PRACTICE POINT:  Two words here, fishing expedition. As badly as we often want to depose plaintiff’s experts it is simply not allowed in New Yok absent evidence, not speculation or hope, that the information sought is not otherwise available and in the case of a medical expert, that it is unrelated to diagnosis and treatment.

 

 

Guaman v Ansley & Co., LLC

January 12 2016

Appellate Division, First Department

 

Plaintiff fell from an inadequately secured ladder, due to an overhead beam striking the ladder after he cut the beam in two pieces.  The trial court denied his motion for summary judgment on his Labor Law §§ 240(1) and 241(6) claims as premature since depositions of defendants and third-party defendants were not yet conducted. 

 

Labor Law § 240(1) (DRA) 

 

The First Department reversed because plaintiff established that his fall was foreseeable and a violation of the statute that was proximately caused his injuries.

           

PRACTICE POINT:  We see this type of motion more and more, the plaintiff is deposed and the Summary Judgment motion is filed within a short period of time, before the defendants are all deposed.  Some courts will give the defendant the opportunity to complete depositions of the defendants but more and more the courts are not denying the motions and the departments, mostly the first and fourth, are sustaining the plaintiff’s Summary Judgment decisions and not finding them premature where the actual witnesses to the accident are deposed.  This can be a big issue for an owner as often they have no control over the entity who provided training or instruction to the employee and the only way to obtain that information is through a deposition.  We thus try and schedule the deposition of the employer for a soon after the plaintiff as is possible in cases where we do not otherwise have access to that entity.

 

Ausby v 365 W. End LLC

January 12, 2016

Appellate Division, First Department

                                          

Plaintiff fell from a ladder that shook either due to his foreman standing on it with him or bumping into it on the ground.  The trial court denied plaintiff’s motion for partial summary judgment on his §§ 240(1) claim, and granted defendants’ cross-motion to dismiss the third-party claims for common-law indemnification and contribution.

 

Labor Law § 240(1) (DRA) 

 

The First Department reversed the trial court’s decision and granted plaintiff’s motion because the statute was violated under either version of plaintiff’s accident, and no credibility issue was presented.  The court held “the failure to secure the ladder … against slippage by any means whatsoever constitutes a violation of Labor Law § 240(1) as a matter of law.”

 

PRACTICE POINT:  When a ladder shifts, slips or moves in any manner causing the plaintiff to fall it is a labor law case.  Hold the presses, that was the law on January 12th in all four departments, but wait and read a shift started in the second department on January 27th.  See below.

 

 

Indemnity Issues in Labor Law (SEP)

 

Third-party defendant Themis was granted summary judgment dismissing all claims of common- law indemnity.  However, the First Department reversed the order finding that Themis had not met its burden of establishing that it did not supervised, direct or control plaintiff’s work. 

 

Nazzario v 222 Broadway, LLC

January 14, 2016

Appellate Division, First Department

 

Plaintiff was performing electrical work, reaching up while standing on a ladder when he received an electrical shock from an exposed wire.  He fell to the floor holding the ladder, which remained in an open and locked position when it landed.  The trial court denied plaintiff’s motion for summary judgment on his Labor Law §§ 240(1) and 241(6) claims, and upon searching the record, dismissed those claims.  The trial court also granted defendants’ motion for summary judgment on their contractual indemnification claims.

 

Labor Law § 240(1) (DRA) 

 

The majority noted that although the ladder itself may not have been defective or failed to comply with safety regulations, plaintiff was injured when he was jolted by the electrical charge and although he hung onto the ladder, because it was not secured to something stable, it and he fell to the ground.  Thus, the lack of a secured ladder constituted a violation of the statute, and is a proximate cause of the accident.

 

The concurring opinion found a question of fact because although the First Department’s precedent supports plaintiff’s claim that he fell from a ladder after receiving an electrical shock from an exposed wire, “this Court’s precedent cannot be reconciled with that of the Court of Appeals, which has made clear that merely because a worker falls from a safety device does not mean that, under a principle of strict liability, recovery under the statute is available.” 

As the record on appeal here does not contain unrebutted evidence that defendant failed to provide plaintiff with proper protection to prevent a fall after sustaining an electrical shock, the dissent points out that plaintiff’s argument that the mere fact he fell from a ladder establishes that the safety devices furnished to him were inadequate was rejected in Blake.  Accordingly, the dissent would find a question of fact as to whether the ladder, which was not shown to be defective in any way, failed to proper protection, and whether plaintiff should have been provided with additional safety devices.

 

 PRACTICE POINT:  Ok, so here is my issue, what of the plaintiff, upon receiving the shock, fall off the ladder but the ladder never moves.  Then it does not matter that the ladder was not secured, as it never moved, and the plaintiff still lands on the floor.  Using the logic of this decision that should not be a labor law case as ladder was then not improperly secured.

 

 

Indemnity Issues in Labor Law (SEP)

 

Codefendants Lime and Jones were both entitled to contractual indemnification because the record established plaintiff’s injuries arose from work performed under a subcontract between Lime and Knight.  As part of that agreement, Knight agreed to indemnify both Lime and Jones.  Where, as here, both Lime and Jones successfully dismissed Labor Law § 200/common law negligence claims, it followed that full indemnity was triggered.  In so holding, the First Department noted that even if the clause at issue violated GOL § 5-322.1, such a violation was moot because neither Jones, nor Lime, sought indemnity for their own negligence.

 

Broadway, as owner of the project, was not entitled to indemnity under the Lime/Knight Contract.  The indemnity clause did not identify Broadway, and the “owner” was identified as someone other than Broadway.  Under such circumstance, Broadway could not meet its burden of establishing a right to indemnity under a contract to which it was not a party, nor an intended third-party beneficiary.

 

Domaszowec v Residential Mgt. Group LLC

January 19, 2015

Appellate Division, First Department

 

Plaintiff’s decedent fell while cleaning a window on the thirteenth floor of an apartment building.  The trial court denied plaintiff’s motion for summary judgment on his Labor Law § 240(1) against 50 Fifth, the owner and building manager, determining decedent was engaged in “routine, household window washing.”

 

The trial court also denied plaintiff summary judgment on her common-law negligence claims against contractor Panorama Windows, Ltd., and denied Panorama’s cross-motion to dismiss that claim in light of conflicting evidence as to whether Panorama cut the bolts of the anchor attached to the building, to which decedent apparently attempted to attach his safety belt.

 

Labor Law § 240(1) (DRA) 

 

The First Department held that because decedent was hired by two shareholders of the residential cooperative who had a long-standing arrangement with the building to clean its windows, he was engaged in “commercial window washing” involving “heightened elevation-related risks.”  Thus, the court reversed the trial court, and granted plaintiff summary judgment.

 

PRACTICE POINT:  The key issue to take from this case is that residential window washing is not a covered project and commercial window washing is a covered project.  The window washing does not need to be in any way related to construction as washing is an enumerated project under the statute.

 

 

Labor Law § 200 and Common-Law Negligence (VCP)

 

The First Department held the trial court correctly denied both plaintiff's motion for partial summary judgment on her common-law negligence claims as against Panorama and Panorama's motion for summary judgment dismissing those claims, in light of conflicting evidence as to whether Panorama cut the bolts of the anchor attached to the building, to which the decedent apparently attempted to attach his safety belt.

 

The court also correctly dismissed the common-law negligence claims as against T & L and Greenpoint, since plaintiff failed to establish the applicability of any exception to the rule that a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party.  The court denied plaintiff's motion for partial summary judgment on her negligence claims as against Panorama, T & L, and Greenpoint pursuant to the doctrine of res ipsa loquitur. The doctrine, which allows a jury to infer negligence from circumstantial evidence, is inapplicable to T & L and Greenpoint because the trial court correctly dismissed the negligence claim as against them, and issues of fact as to the decedent's comparative negligence preclude summary judgment as against Panorama.

 

Castro v Peguero

January 19, 2016

Appellate Division, First Department

 

Plaintiff was performing repair work on defendant’s house when the ladder he was descending from slipped and quickly fell.  Plaintiff testified he did not place the ladder on any defective condition in the driveway but rather placed pieces of wood under one foot of the ladder to keep it level.  The trial court granted defendant’s motion for summary judgment dismissing the Labor Law § 240(1) claim and common-law negligence claims.

 

Labor Law § 240(1) (DRA)

 

The First Department affirmed because there was no dispute that defendant, as the owner of a single family residence who was not directing the repair work on her house, is exempt from liability under the statute. 

 

PRACTICE POINT:  While plaintiff tried to argue that there was a defect in the property which cause the ladder to slip and fall that argument was forestalled by a good deposition of the plaintiff where he testified that there no issue with the driveway where the ladder was placed.  This drives home the importance of understanding the law for the type of claim being made prior to doing the deposition.  The stakes are too high to wait until after the deposition and then to check the law based on what the plaintiff said.  It is critical to understand the nuances of the law and be prepared to question directly on those critical points.

 

Labor Law § 200 and Common-Law Negligence (VCP)

 

The First Department affirmed dismissal of the common-law negligence claim.  Defendant may be held responsible under the common law of negligence only if plaintiff can show that she breached her duty to maintain the house in reasonably safe condition, and that her breach of duty was a proximate cause of his injuries.  Plaintiff contends there was some crack or defect in the surface of the driveway where he placed the ladder that constitutes a defective condition.

 

Assuming arguendo the record raises issues of fact concerning the existence of such a defect, there is no basis for a fact finder to conclude that any defect in the driveway was a proximate cause of plaintiff's accident, since he clearly testified the ladder was not placed on any defect.  Plaintiff's affidavit, stating that the bottom of the ladder came into contact with a “cracked and unlevel” part of the driveway directly contradicts his deposition testimony, without any explanation for the disparity, and thus creates only a feigned issue of fact, which is insufficient to defeat defendant's motion for summary judgment.

 

Boggs v City of New York

January 19, 2016

Appellate Division, First Department

                                        

Decedent’s coworker, who was with him at the time he was struck and killed by a train, testified that the banker lights from the express track and the lights from the subway station were fifty feet away from the accident location, and that the ambient lighting at that location did not provide enough light to read a standard newspaper.  The trial court denied defendant’s motion to dismiss the Labor Law § 241(6) claim based upon (12 NYCRR) § 23-1.30. 

 

Labor Law § 241(6) (JAE)

 

The First Department affirmed in holding that contrary to defendant’s contention, 12 NYCRR 23-1.30 is applicable, since this section requires lighting that provides a minimum of 10 foot-candles of illumination in any area where persons are required to work, and there is no dispute that the accident occurred where construction work was being performed.

 

Note:  Don’t google “foot candles” as they are units measuring the intensity of light falling on a surface equal to 1 lumen per square foot (http://dictionary.reference.com/browse/foot-candle).

 

Aslam v Neighborhood Partnership Hous. Dev. Fund Co., Inc.

January 20, 2016

Appellate Division, Second Department

                                        

Plaintiff allegedly was injured after he fell from scaffold while working for third-party defendant Delight on premises owned by Neighborhood.  Plaintiff’s employer was allegedly performing work pursuant to a subcontract with the general contractor, Delight.  In moving for summary judgment, plaintiff argued that he received permission from his employer to do work on the subject building on the day of his accident.  Neighborhood and Delight argued in opposition that plaintiff was expressly prohibited from performing the work until certain demolition work was finished.  The trial court granted plaintiff’s motion under Labor Law § 240(1).   

Labor Law § 240(1) (DRA)

The Second Department held that plaintiff met his prima facie burden of showing that he was an employee for hired, “permitted or suffered” to work at the site on the day of his accident and that defendants violated the requirements of the statute which was a proximate cause of the accident.  However, defendants raised in opposition a triable issue of fact as to whether plaintiff had permission to perform work at the site of the day he was injured.  Thus, the trial court should have denied plaintiff’s motion.

PRACTICE POINT:  Remember that the statute provides protection to those individuals who are “so employed” and thus, it is critical to look at this as a first issue in every case.  This can be a volunteer doing work who would not be a valid labor law plaintiff, or someone told that a work site is closed for them at a specific time.  We see that in asbestos abatement projects where other workers are not permitted to be in the encapsulated area until all asbestos has been removed.   We see case where the plaintiff is not supposed to be on the site at all when injured, sometimes after hours on the roof drinking beer as happened last year or sometime on a weekend when the site is closed. 

Barrett v Dennis Lounsbury Bldrs., Inc.

January 20, 2016

Appellate Division, Second Department

                                        

The trial court sua sponte directed dismissal of plaintiff’s Labor Law § 200 and common-law negligence claims against defendant Lounsbury but declined to search the record and award defendant Garvey summary judgment on his cross-claim for common-law indemnification against Lounsbury.

 

Labor Law § 200 and Common-Law Negligence (VCP)

 

With respect to the defendant Edward Garvey, the Second Department held that where the order does not affect the rights of an appealing party, that party is not aggrieved by the order and the appeal must be dismissed.  Thus, Garvey is not aggrieved by so much of the order as, sua sponte, directed the dismissal of the plaintiffs' causes of action alleging a violation of Labor Law § 200 and common-law negligence insofar as asserted against Lounsbury.

 

Indemnity Issues in Labor Law (SEP)

 

As “a party is not aggrieved by an order which does not grant relief [he or she] did not request”, the Second Department held Garvey was not aggrieved when the trial court declined to search the record and sua sponte award his summary judgment on his common-law indemnification claim against Lounsbury.

 

Scofield v Avante Constr. Corp.

January 27, 2016

Appellate Division, Second Department

                                        

Plaintiff fell from an A-frame ladder while doing HVAC work on a construction project.  He had used this ladder without incident in four prior rooms, and had to work around piles of sheet rock to reach the area where he needed to work.  The ladder was not defective, was on firm ground and did not shake or move in any way when he ascended it.  Plaintiff was required to reach three or four feet to his right to complete his task and after working in that manner for a few seconds the ladder tipped and he fell.  The trial court granted defendants’ motion for summary judgment dismissing the Labor Law § 240(1) claim, and denied plaintiff’s cross-motion.

 

Labor Law § 240(1) (DRA)

 

The Second Department affirmed dismissal of plaintiff’s Labor Law § 240(1) claim complaint because “the injured plaintiff improperly positioned and misused the ladder, which was the sole proximate cause of his injuries.” 

 

PRACTICE POINT:  Why is this important you may ask? The answer is simple; this is the first time I have seen a court, any court, award Summary Judgment to a defendant when the plaintiff fell because a ladder tipped, shook, shimmied or slipped.  They did so specifically because it was the plaintiff who placed the ladder.  In countless decisions, the courts have held that when a ladder is improperly placed, even when placed by the plaintiff, that the improper placement is a violation of the statute and thus a proximate cause, precluding any other proximate cause from being the sole proximate cause of the plaintiff’s fall and subsequent injury.  Without the ability to have the plaintiff’s actions in placing and misusing the ladder be the sole proximate cause the defendant is without the ability to defend the 240(1) claim.

 

We have noticed this trend in the Second Department towards holding the plaintiff responsible for the placement of the ladder, and have been carefully watching for this exact scenario to make it to the court.  While we do not expect the Second’s view of the sole proximate cause defense in ladder placement cases to make its way across the state quickly, or even make the very short trip to the First Department quickly, we are ever hopeful that this will make its way to the Court of Appeals.  We hope to have a decision which holds the plaintiffs responsible for their own actions in placing the ladder improperly causing them to fall.  Some of the recent cases in the Second have specifically noted in ladder shift cases as they denied the sole proximate cause argument that it was not the plaintiff who positioned the ladder.

 

Hayes v Bette & Cring, LLC

January 7, 2016

Appellate Division, Third Department

                                        

Plaintiff allegedly fell while working as a roofer on a construction project.  The trial court denied defendant’s motion to compel plaintiff to appear for an examination by a voc rehab expert.

 

Labor Law § 240(1) (DRA)

 

The Third Department noted that CPLR § 3101 “broadly mandates full disclosure of all matter material and necessary in the prosecution and defense of an action” and noted the words “material and necessary” must “be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity.”

 

The court also noted that the Court of Appeals has confirmed that the mandate for broad disclosure is not necessarily limited by the more specific provision of the CPLR that allows a defendant to demand that a plaintiff submit to a physical or mental examination “by a designated physician” where his or her medical condition is at issue (see CPLR § 3121[a]).  Here, the court held that plaintiff placed his ability to work in controversy by claiming that as a result of his injuries, he suffered loss of future wages and reduced earning capacity and by testifying at his deposition that his future career opportunities were limited.

 

Notably, at the time of defendant’s demand plaintiff did not object or otherwise complain that he would be prejudiced or burdened by a voc rehab examination and no note of issue was filed.  Therefore, the court held plaintiff should be directed to appear for defendant’s examination.

 

PRACTICE POINT:  The vocational rehabilitation examination is an important tool in defending a case where there is a claim of inability to work or a reduced work life.  It is also not something that a defendant wants to just rush into headlong.  The timing of the exam can be critical.  The question of whether to do a functional capacity examination along with the voc rehab exam is often a valid question, should the defendant wait and see if the plaintiff discloses a voc rehab before doing his or her own is also an issue to be addressed.  The answer I am afraid cannot be found in any book or newsletter for that matter.  It required an assessment of the specific case, the type of injuries and the work the t was doing and may be able to do post-accident and recovery.  It is, however, a critical topic for discussion between the attorney and his or her claims partners.

 

 

Hebbard v United Health Servs., Hosps., Inc.

January 14, 2016

Appellate Division, Third Department

                                        

Plaintiff allegedly was injured when a stack of scaffold frames tipped onto him when he attempted to move one.  The frames were from disassembled scaffold that were used at the project and had been stacked using a forklift.  Plaintiff was assigned to move the frames from the pile and place them into groups so they could be bound together.  As he moved one, others toppled onto him. 

 

The trial court denied plaintiff’s cross-motion and granted defendant’s motion for summary judgment dismissing the Labor Law §§ 240(1), 200 and common-law negligence claims but denied defendant’s motion with respect to the § 241(6) claim predicated upon Industrial Code regulation § 23-2.1(a)(1). 

 

Labor Law § 240(1) (DRA)

 

The Third Department affirmed dismissal, relying on Oakes v Wal-Mart Real Estate Bus. Trust; Wilinski v 334 E. 92nd Hous. Dev. Fund Corp.; and Christiansen v Bonacio Constr., Inc.  In Oakes, a case involving a 5½-foot high, heavy steel truss that was located at ground level and tipped onto a worker who also was at ground level, the Third Department held that “plaintiff was exposed to the usual and ordinary dangers of a construction site, and not the extraordinary elevation risks envisioned by Labor Law § 240(1).”  More recently, the Third Department held in  Christiansen , a case involving a scaffold frame tipping from not more than two feet above the worker’s head – that the “plaintiff’s injury, caused by the tipping frame or scaffold component, did not fall within the scope of Labor Law § 240(1).” 

 

Here, the court noted the frames were about the same height as plaintiff, were located on the same level as him, and that he was engaged in moving them from one place on the garage floor to another place on the same floor and did so by carrying one at a time.  As he picked up one frame, other frames also located on the same level tipper over and therefore, dismissal was appropriate.

 

PRACTICE POINT:  We get excited when common sense prevails.  A scaffold frame leaned against a row of scaffold frames which tips on the plaintiff is simply not the type of elevated risk that the statute is designed to protect against.  It is, as the court points out, the type of risk commonly and ordinarily found on a construction site.

 

Labor Law § 241(6) (JAE)

With regard to the Labor Law § 241(6), the court affirmed, likewise declining to dismiss the cause of action based on 12 NYCRR 23-2.1 (a) (1).  This regulation provides: “All building materials shall be stored in a safe and orderly manner.  Material piles shall be stable under all conditions and so located that they do not obstruct any passageway, walkway, stairway or other thoroughfare.”  The term “material” is not defined in the regulations or established by case law, and accordingly the court considered the dictionary definition of the term.  Citing to multiple dictionaries, such definitions include: “apparatus (such as tools or other articles) necessary for doing or making something”, “[t]he things that are used for making or doing something”; and “the elements, constituents, or substances of which something is composed or can be made.” 

Here, the Third Department found the piled component parts of a disassembled scaffold come within such definitions, as well as a sensible understanding of a material pile at a construction site that should be stable.  The court analogized the scaffold frames to the pile of sheetrock left leaning against a wall in Rodriguez v DRLD Dev., Corp., 109 A.D.3d 409, 409-410 (2013).

Labor Law § 200 and Common-Law Negligence (VCP)

 

Plaintiff conceded to dismissal of this claim on appeal.

 

Feilen v Christman

January 14, 2016

Appellate Division, Third Department

                                        

Plaintiff was applying a wood preservative to a new cedar shake roof that he replaced on defendant’s house when plaintiff fell.  The trial court denied plaintiff’s motion and granted defendant’s cross-motion to dismiss the Labor Law §§ 240(1), 241(6) and negligence claims as defendant exercised no supervision or control over plaintiff’s work and the homeowner’s exemption applied.

 

Labor Law § 240(1) (DRA)

 

Although there were two buildings on defendant’s property; a barn and a two-story “salt-box” house; only one room on the entire premises was rented as a sleeping unit for the bed and breakfast and that room was located in the barn.  The roof work was limited to the house, which was defendant’s full-time primary residence.  The Third Department held that even though the house had a mixed purpose, the roof work was “directed at preserving the integrity of the structure itself and primarily benefited defendant’s clearly residential use of the premises.”  At the time of the accident, defendant undisputedly resided full-time in the house and “the use and purpose test must be employed on the basis of the homeowner’s intentions at the time of the injury underlying the accident and not his or her hopes for the future.”

 

PRACTICE POINT:  In a mixed used property it is the nature of the work done, was it for the promotion of the commercial or residential nature of the property that controls.  If the work is being done for the benefit if both uses, the courts generally allow for the exception from the labor law.  It is also the status of the home at the time of the accident which controls, in other words if the home is later rented for a commercial purpose, but that was not the use at the time of the accident, the exception will be allowed.

 

LABOR LAW § 241(6) REGULATIONS; SPECIFIC OR GENERAL (MAS)

 

 

 

12 NYCRR § 23-1.7(e) – Protection in Construction, Demolition and Excavation Operations; Protection from general hazards; Tripping and other hazards.

 

§ 23-1.7(e)(2) requires that part of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consisten­t with the work being performed, and is sufficiently specific.

 

McGrath v Lake Tree Vil. Assocs., 216 AD2d 877, 629 NYS2d 358 (4th Dept. 1995);

Adams v Glass Fab, Inc., 212 AD2d 972, 624 NYS2d 705 (4th Dept 1995);

McAndrew v Tennessee Gas Pipeline Co.,  216 AD2d 876, 628 NYS2d 991 (4th Dept 1995);

White v Sperry Supply and Warehouse Inc., 225 AD2d 130, 649 NYS2d 236 (3d Dept 1996);

McCormack v Helmsley-Spear, Inc., 233 AD2d 203, 649 NYS2d 697 (1st Dept 1996);

Baker v International Paper Co.,226 AD2d 1007, 641 NYS2d 206 (3d Dept 1996);

Sharrow v Dick Corp., 233 AD2d 858, 649 NYS2d 281 (4th Dept 1996);

Cafarella v Harrison Radiator Div. of General Motors, 237 AD2d 936, 654 NYS2d 910 (4th Dept 1997);

Herman v St. John’s Episcopal Hosp., 242 AD2d 316, 678 NYS2d 635 (2d Dept 1997);

Boss v Integral Const. Corp., 249 AD2d 214, 672 NYS2d 92 (1st Dept 1998);

Gavigan v Bunkoff General Contractors Inc., 247 AD2d 750, 669 NYS2d 69 (3d Dept 1998);

Dacchille v Metropolitan Life Ins. Co., 262 AD2d 149, 692 NYS2d 47 (1st Dept 1999);

Conway v Beth Israel Medical Center, 262 AD2d 345, 691 NYS2d 576 (2d Dept 1999);

McGrath held reg applicable to specific work area as floors, platforms and defined passageways, and not common areas or an open yard in front of or between buildings.

Adams held reg inapplicable where π allegedly tripped on wire mesh placed on floor area where concrete was to be poured b/c wire mesh integral part of the floor being constructed, and wire mesh not same as dirt, debris or “scattered tools and materials.”

McAndrew held reg sufficiently specific to sustain a cause of action under § 241(6).

White found issue of fact whether reg violated when π fell on roof & caused a bucket of hot tar behind him to spill and cause burns to his legs.

McCormack held safety expert’s specific allegations that ∆ violated reg adequately supported claim where π allegedly slipped on mixed wet cement and mortar debris.

Baker found issue of fact b/c ∆ failed to establish reg did not apply to π’s fall. 

Sharrow held reg inapplicable when π tripped over tubular extension attached to hoist during construction b/c object he tripped on was integral part of work.

Cafarella held reg arguably applied where π slipped and fell while working in rear bed of dump trunk b/c reg requires working areas be kept free form accumulation of dirt and debris and from scattered tools and materials. 

Herman held ∆ not entitled to dismissal of claim under reg where π fell in basement b/c reg sufficiently specific.

Boss held reg applied b/c piece of sheetrock π allegedly tripped constituted “debris” and “scattered materials” under reg. 

Gavigan held reg inapplicable to incidents occurring on out-of-doors dirt pathway.

Dacchille held wire mesh storage area in which π injured while retrieving 200 pound reel of cable wire did not constitute “working area” under reg.

Conway held reg inapplicable b/c storeroom π injured in not “working area” and A-frame ladder was not a “scattered tool.”

 

\Hurwitz & Fine, P.C. is a full-service law firm
providing legal services throughout the State of New York

 

Labor Law Pointers

 

Editor
David R. Adams


Associate Editor
V. Christopher Potenza


Associate Editor
Steven E. Peiper


Associate Editor
Jennifer A. Ehman

 

Associate Editor
Marc A. Schulz
 

 

Labor Law Team

 

            David R. Adams, Team Leader                                            Steven E. Peiper

            dra@hurwitzfine.com                                                            sep@hurwitzfine.com

 

            Dan D. Kohane                                                      Cassandra A. Kazukenus

            ddk@hurwitzfine.com                                                            cak@hurwitzfine.com

 

            Michael F. Perley                                                                  Jennifer A. Ehman

            mfp@hurwitzfine.com                                                           jae@hurwitzfine.com

           

            V. Christopher Potenza                                                        Marc A. Schulz

            vcp@hurwitzfine.com                                                            mas@hurwitzfine.com

 

 

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Suite 1300 Liberty Building
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Phone:  716.849.8900
Fax:   716.855.0874
www.hurwitzfine.com
 

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