Labor Law Pointers

 

Volume VI, No. 12

Wednesday, October 4, 2017

 

A Monthly Electronic Newsletter Addressing

New York State Labor Law

Decisions and Trends

From the Editor:

 

Do you have a situation, we love situations.  They make us think, they make us ponder the irreconcilable meaning of the labor law, and they make us devise unique and inventive defenses to try to defeat this Draconian law which is such a historic drain on business of all types, other than for plaintiff’s attorneys, in New York State.  And heaven help us, we love figuring it out.

 

We all here at Hurwitz & Fine, but especially the Labor Law team want to wish Marc Schulz and his bride Sarah congratulations and wish them a fabulous (but not too long) honeymoon.  We will not hold it against him too much that he married a plaintiff’s attorney; she is actually awesome in spite of her carrier choice.

 

You all know how much I love the crazy pictures that I am sent every month, usually found in some strange internet search.  Well the first picture below was sent to me by a friend in the insurance business, with a very strong understanding of New York Labor Law, and not only is this picture taken at his house, by him in fact, as he supervised the work and provided the worker with the saw and extension cord, but the ladder he claims, is not his.  My friend, you need to listen to me from time to time, you know better.     

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This one is makes my knees weak.  Those are not scaffolds the ladder is placed on top of, that would be bad enough, but those are just tables.  This picture allows me to remind everyone that a person is not, under most circumstances, a safety device.  Thus, even if the guys holding the tables still are the Olympic weight lifters, if the plaintiff falls, as he is almost certain to do when things begin to shift, it looks like a 240(1) case to me unless there is a lift just around the corner of the tent that the plaintiff was instructed to use but that for no good reason he decided not to use. 

 

 

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This is a personal favorite, tying the ladder to the balcony and climbing up to the ceiling of the two story room, what could possibly go wrong here.  Just think about the ladder starting to sway from side to side to the pendulum on a clock, until the plaintiff is thrown half way across the room only to land on the piano.  We can only hope the soon to be plaintiff is not a “person so employed” and this not a valid plaintiff in a labor law case so his enormous culpable conduct can be held against him.

 

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We are coming out of the summer slump and the cases are coming with increased vigor now that the courts are back in session.  Hope everyone enjoyed their summer.  Here in Buffalo the weather for the past few weeks has been the warmest and driest of the summer and we are relishing it. 

 

This is also a great time of year for training and we are available to schedule sessions for you on any topic labor law or risk transfer related, just give me a call or send an email, we love to get out and meet our subscribers, both new and long time.  We also encourage you to share this newsletter with anyone you feel might either enjoy it (a strange crowd, but my kind of people) or find it helpful.  That is why we include a word version of the email for easier distribution and to cut and paste for a specific topic.  In addition all of the prior editions are available on our website and are searchable, just follow the link below.  http://www.hurwitzfine.com/news/category/labor-law-pointers

 

Have a great October everyone and we will be back next month.

 

David

 

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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.

 

 

 

 

Valente v Lend Lease (US) Constr. LMB, Inc.

September 5, 2017

Court of Appeals

                                         

Plaintiff allegedly was injured when he slipped and fell on grease on planks he was using as a makeshift ramp to descend five feet from the top of a building to a scaffold. The trial court granted plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim.  The First Department held that plaintiff’s incident was “the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation difference” and therefore is covered under the statute and rejected defendants’ sole proximate cause argument that plaintiff chose to use the planks instead of using a ramp that he knew was available or constructing a proper ramp.

Labor Law § 240(1) (DRA) 

The Court of Appeals agreed with the Appellate Division that the injuries alleged by the Plaintiff were the result of an elevation-related risk and that § 240(1) applied.  It did, however, find a triable issue of fact with respect to defendants’ argument of sole proximate cause based upon a finding that it could be argued that plaintiff's foreman provided conflicting accounts of whether plaintiff had "adequate safety devices available," whether "he knew both that they were available and that he was expected to use them," whether "he chose for no good reason not to do so," and whether "had he not made that choice he would not have been injured".  

The Appellate Division had rejected the sole proximate cause argument below because there was evidence in the record that the ramp was not long enough to reach the scaffold and that plaintiff did not have time to build a ramp.  However the Court of Appeals considered additional conflicting testimony to find an issue of fact.

 

PRACTICE POINT:  Sole proximate cause requires five elements, 1) that there be an appropriate safety device which is 2) appropriate, 3) that the plaintiff have been instructed or know he was expected to use that safety device which he 4) misuses of fails to use 5) for no good reason.  Remember that all five elements of the defense must be present for it to succeed. 

Cardona v New York City Hous. Auth.

September 26, 2017

Appellate Division, First Department

 

Plaintiff testified that onsite supervisors gave him a work assignment to work from the top of a sidewalk bridge, exposing him to elevation-related risks. He further stated that he was not provided with a ladder or any other safety device; was instructed to access the top of the bridge by climbing up its side; and that, while attempting to do so, he lost his grip, slipped, and fell to the ground.  Supreme Court of Bronx County granted plaintiff partial summary judgment as to liability on his Labor Law § 240(1) claim. 

Labor Law § 240(1) (DRA) 

 

Defendants testified that Plaintiff’s direct supervisor did not give the instruction to climb the side of the bridge and that another could have which provided that instruction had no support.  The injury report, which may have supported the sole proximate cause defense, also failed to raise an issue of fact as it could not be demonstrated that it was prepared by a person with personal knowledge of the incident.  In fact the defendant did not even know who prepared the report.  The recalcitrant worker argument also failed because there was no evidence that a plaintiff was informed that a ladder or other safety device was available, provided for his use and that he was instructed to use it.  Finally, defendants’’ arguments about plaintiff’s “carelessness” and “bad decisions” were dismissed as irrelevant to a 240(1) claim where plaintiff’s comparative fault is not an issue.  The Court unanimously affirmed the lower court order.

PRACTICE POINT:  Careful record keeping, especially after an accident, along with immediate and through investigation can be the core of a viable defense.  A statement taken from the plaintiff and any witnesses immediately after an accident can provide an explanation for an accident far different from the deposition testimony certain to follow.  A perfectly stationary ladder is suddenly in twisting, shaking and shifting.  Additionally the confirmation of receipt and reading of the safety manual which confirms that the plaintiff was instructed to always use his ladder in the open and locked position can carry the day when the plaintiff falls from a ladder not opened and locked but leaned against the wall. 

 

 

Schaefer v Tishman Constr. Corp.

September 26, 2017

Appellate Division, First Department

 

 

Plaintiff was injured while working on the B-3 level of the Weil Cornell Medical College.  Another electrical contractor and Petrocelli Electric Co., Inc. (Petrocelli) remained on the job site around the time of the Plaintiff’s accident according to the testimony of the College’s safety manager.   The Supreme Court, New York County denied the motion of defendant Petrocelli for summary judgment dismissing the complaint and all common-law cross claims and counterclaims as against it based on their claim that they had left the work site.

 

 

Labor Law § 241(6) (MAS)

To the extent Petrocelli remained on the job site and the dangerous condition arose from work delegated to it, which it was in a position to control, it was an agent of the owner and/or general contractor subject to liability under Labor Law § 241(6).  Where there was conflicting testimony as to whether or not that were still on site at the time plaintiff was injured, Summary Judgment is not warrented.

 

 

 

 

Thompson v East Coast 6, LLC

September 13, 2017

Appellate Division, Second Department

            The plaintiff allegedly tripped and fell at a construction site when he attempted to walk on a floor that was covered in tarps and safety netting. He brought suit against East Coast, the owner of the property where the accident allegedly occurred, to recover damages for violations of Labor Law § 241(6). At the trial, defense counsel impeached the plaintiff with inconsistent statements the plaintiff had made during a deposition, and presented evidence that the plaintiff did not report the accident until nearly two months after it occurred. Based on this evidence, East Coast argued to the jury that the plaintiff's account of the accident should not be believed. The jury returned a verdict in favor of East Coast, and Plaintiff appealed.

           

 

Labor Law § 241(6) (MAS)

The Court found that the jury was presented with valid reasons to doubt the plaintiff's credibility and to conclude that the accident either did not happen at all or that it did not happen in the way that the plaintiff claimed. Under the circumstances, since it cannot be said that the evidence so weighed in favor of the plaintiff that the verdict could not have been reached on any fair interpretation of the evidence, the Appellate Division declined to disturb it.

 

 

Antonyshyn v Tishman Constr. Corp.

September 20, 2017

Appellate Division, Second Department

 

The plaintiff alleged that he was injured when a scaffold upon which he was working moved, causing him to lose his balance and fall to the floor below. The building where the plaintiff was working at the time of the accident was owned by the defendant Varick which had entered into an agreement with the defendant Foundations Group, Inc. to act as the general contractor for the construction project. Foundations subcontracted with the defendant Nuway, which in turn subcontracted with the plaintiff's employer.

 

Supreme Court, Queens County granted plaintiffs' motion for summary judgment on the 240(1) claim and denied defendants’ motions for leave to renew their opposition to that branch of the plaintiffs' motion which was for summary judgment on the 240(1) claim.  Defendants appealed both decisions.

 

Labor Law § 240(1) (DRA) 

Plaintiff made a prima facie showing of entitlement to judgment as a matter of by submitting the plaintiff's deposition testimony that established that the appellants failed to provide the plaintiff with adequate safety devices, as required by Labor Law § 240(1), and that this failure was a proximate cause of the accident.

 

The court found the summary judgment motion by plaintiff to be premature, however, because only one of the defendants had deposed the Plaintiff.  The appellants sufficiently established that facts may exist that would demonstrate that the plaintiff's own actions were the sole proximate cause of the accident satisfying the requirement that a party claiming the motion to be premature show that “discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant.”

 

The Appellate division reversed the trial court and denied Plaintiff’s motion, but granted leave to renew the motion after the completion of discovery.

 

PRACTICE POINT:   The courts are increasingly granting Summary Judgment motions prior to the completion of discovery and as a result more early, meaning prior to the note of issue, Summary Judgment motions are being made.  The grounds to successfully oppose those motions based on being premature are specific, and require the party opposing the motion to provide evidence that further discovery could lead to evidence to oppose the motion and that the evidence is not within their control but is in the control of a different party. The court specifically held that "A party contending that a summary judgment motion is premature must demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant

 

Haidhaqi v Metropolitan Transp. Auth.

Decided on September 20, 2017

Appellate Division, Second Department

 

Plaintiff sustained injuries while working at a MTA project for the rehabilitation of the Culver Viaduct Project when, while painting an elevated steel beam, he was pinned between the railing of the boom lift he was using and the beam. The plaintiff's employer, Fox Industries, was the contractor responsible for the Culver Viaduct Project pursuant to a contract entered into with the defendant MTA.  The defendant F & S Contracting had been retained by the MTA, under a separate contract as the general contractor for a different project located on part of the Culver Viaduct.   Defendant F & S Contracting, LLC, appealed an order of the Supreme Court, Kings County which denied, as premature, its motion for summary judgment dismissing the complaint and all cross asserted against it.

Labor Law § 240(1) (DRA) and Labor Law § 241(6) (MAS) and Labor Law § 200 and Common-Law Negligence (VCP)

 

F & S Contracting established, prima facie, that the work it performed in connection with the Smith & 9th Project was entirely distinct from, and unrelated to, the injury-producing work, which was part of the Culver Viaduct Project. F & S Contracting also established, prima facie, that it discontinued its work on the Smith & 9th Project before the subject accident occurred. Inasmuch as F & S Contracting was not an owner, contractor, or agent involved in the Culver Viaduct Project, had no responsibility for procuring or supplying the allegedly defective boom lift involved in the accident, and exercised no supervision or control over the plaintiff's work, it follows that F & S Contracting could not be held liable under any theory of liability asserted in the complaint.  

 

PRACTICE POINT: The issue here is the validity of the defendants in any aspect of the labor law case.  Recall that we analyze the four basic elements of every labor law case at the outset.  Is the plaintiff an appropriate plaintiff, is the defendant an appropriate defendant, is the overall project the type for which the labor law was established to provide protection and lastly was the injury producing accident the type specified in the statute.  Here the defendant was not a valid defendant at the time of the accident and thus dismissal was appropriate.

 

 

 

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

 

 

12 NYCRR § 23-1.9 – Drinking water and sanitation

 

§ 23-1.9(a), Drinking Water, requires clean, pure, and cool drinking water be provided in readily accessible locations.   It must either be running water or be provided in clean, covered receptacles.   Common drinking cups or dippers are prohibited. 

 

McMahon v. Durst, 224 AD2d 324, 638 NYS2d 48 (1st Dept 1996);

 

 

McMahon found, without analysis, that plaintiffs had abandoned their argument that this section would support a § 241(6) claim, but that those arguments would be unpersuasive anyway.

 

Related subsections have been held to be health regulations rather than safety regulations that would support a § 241(6) claim.

 

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
Marc A. Schulz

 

Associate Editor
Eric D. Andrew

 

Associate Editor
Howard B. Altman

Associate Editor
Brian F. Mark

 

Labor Law Team

 

 David R. Adams, Team Leader                            Steven E. Peiper

            dra@hurwitzfine.com                                 sep@hurwitzfine.com

 

            Dan D. Kohane                                        Jennifer A. Ehman

            ddk@hurwitzfine.com                              jae@hurwitzfine.com

 

Marc A. Schulz                                                 Jennifer J. Phillips

            mas@hurwitzfine.com                          jjp@hurwitzfine.com

 

            Michael F. Perley                                 Eric D. Andrew

            mfp@hurwitzfine.com                         eda@hurwitzfine.com

           

            V. Christopher Potenza                   Howard D. Altman

vcp@hurwitzfine.com                                  had@hurwitzfine.com

 

Brian F. Mark

bfm@hurwitzfine.com

 

 

Hurwitz & Fine, P.C.
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Suite 1300 Liberty Building
Buffalo, New York 14202

Phone:  716.849.8900
Fax:   716.855.0874
www.hurwitzfine.com

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