Labor Law Pointers
Volume VI, No. 3
Wednesday, January 11, 2017
A Monthly Electronic Newsletter Addressing
New York State Labor Law
Decisions and Trends
From the Editor:
Do you have a situation; we exist to address your situations, to help you analyze them and work together towards a solution. We will make your situation our situation.
So, Labor Law Pointers comes out the first Wednesday of every month, right. That has been the way we have done it for 6 years. This month I became aware of a twist to that schedule. Apparently when the first Wednesday is also the first Wednesday of 2017 I will not be able to realize it is the first of the month, nor will any or my crack staff (with the notable exception of Marc who asked me on Friday why it did not go out) that it is Labor Law Pointers day.
I am here, hat in hand, to fall on my sword and take full responsibility for the many of you who, absent a new edition of Labor Law, were unaware that January had started. It seems unbelievable that, having celebrated the start of the New Year with my family, I was unaware that the Wednesday a mere 3 days later, would be the first one of the month.
Courts are back in full swing and we have a lot of cases for your reading pleasure. We start with a Court of Appeals case with limited explanation which I feel sure will be broadly misquoted in many Summary Judgment motions in the future.
We start the new year as we ended the old, with an open invitation to one and all to share your situations with us, to let us provide training and updates to your teams, to just call and say hi. I would be remiss if I did not remind you all that Dan Kohane’s Coverage Pointers, the older brother to Labor Law Pointers, is published every other week on all issues coverage and beyond. If you are not on the distribution list please feel free to contact him at [email protected] and he will get you on the list.
If there is anyone you think would benefit from receiving this newsletter by all means feel free to share and if they contact me we will happily put them on the list as well.
Have a happy and healthy 2017. By the way my resolution is to look set a reminder for the first Wednesday of each month so we do not have a repeat of last week’s embarrassment.
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: [email protected]
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 [email protected] or call the Editor/Labor Law Team Leader David R. Adams directly at (716) 849-8916.
Batista v Manhattanville Coll.
December 20, 2016
Court of Appeals
Plaintiff allegedly was injured when one of the spruce planks he used for the flooring of a scaffold broke. Although plaintiff was instructed by his employer to only use OSHA pine planks for the flooring, his supervisor occasionally “caught” him using spruce planks and specifically instructed him only to use pine planks and reprimanded plaintiff more than once for not following said instructions.
The trial court granted plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim, and denied defendants Manhattanville and TJR’s cross-motion to dismiss that claim. The First Department reversed, finding issues of fact exist whether plaintiff disregarded instructions to use only pine planks for flooring on the scaffold he was constructing or otherwise knew that only pine planks were to be used for flooring and whether more pine planks were readily available to him either at the site, as his supervisor testified or at his employer’s yard.
The Court of Appeals reversed the First Department in granting plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim. The Court, citing to Barreto v Metropolitan Transp. Auth., 25 NY3d 426, 433-34 (2015), also held defendants failed to raise a triable issue of fact whether plaintiff was the sole proximate cause of his accident.
PRACTICE POINT: It is interesting that the Court of Appeals does not specifically address any of the four reasons the First Department found a question of fact as to whether the plaintiff was the sole proximate cause of the accident. See the decision below here in this hyperlink Batista First Dept decision. Unfortunately this case does not have any real explanation as to the basis of their decision to dismiss the finding below that there was question of fact as to plaintiff’s being the sole proximate cause of the accident and injury. The First Department below listed 4 of them including the plaintiff’s failure to follow instruction not to use that type of plank, that there was a question of fact as to whether there were appropriate planks on site. The failure of the CoA to address these issues directly will be touted by plaintiff’s attorneys to mean that where a plank fails, as the plank did in the instant case, that the selection of the plank by the plaintiff is of not consequence and that 240(1) should apply.
December 1, 2016
Appellate Division, First Department
Plaintiff allegedly was injured when the ladder from which he was descending suddenly kicked out, resulting in his fall. The trial court denied plaintiff’s motion for partial summary judgment on the issue of liability on the Labor Law § 240(1) claim.
The First Department reversed as plaintiff established a violation of the statute through witnesses’ testimony, and was not required to demonstrate the ladder was defective to be entitled to summary judgment. Given the undisputed testimony that the ladder kicked out because it was unsecured, testimony that plaintiff unsafely descended it by carrying pipe fitting in his arms established, at most, “contributory negligence, a defense inapplicable to a Labor Law § 240(1) claim” Nacewicz v Roman Catholic Church of the Holy Cross, 105 AD3d 402 (1st Dept 2013).
PRACTICE POINT: It bears repeating, no matter how many times, that plaintiff’s negligence will never support a sole proximate cause defense if anything else (like an unsecured ladder) was a substantial factor in causing the incident. Recall the five elements to establishing a sole proximate defense: (1) plaintiff must be provided with appropriate and available safety devices; (2) that were available; (3) plaintiff knew he was expected to use them; (4) plaintiff chose for no good reason not use or misused the safety devices; and (5) had plaintiff not made that choice, he would not have been injured.
Burgos v Premiere Props., Inc.
December 13, 2016
Appellate Division, First Department
Plaintiff allegedly sustained injury when he tripped over a tool bag owned by defendant D.P. Consulting Corp. on a building stairway. Although plaintiff’s complaint alleged D.P. Consulting Corp. and defendant building management company Premiere were negligent by allowing debris to remain on the staircase, plaintiff’s Bill of Particulars alleged violations of Labor Law §§ 240(1), 241(6) and 200.
Premiere moved for summary judgment arguing (1) the Labor Law claims were abandoned, (2) plaintiff was not a covered person under the Labor Law because he was not involved in construction work, (3) it was not liable under common-law because it did not own the building and was not in complete and exclusive control of the management or operation of the building, and (4) it did not cause or create the open and obvious condition.
The trial court denied Premiere’s motion as “it is not clear to the Court what labor law provisions were allegedly violated”, and only the trier of fact could determine the proximate cause of the accident and whether Premiere was negligent.
The First Department determined plaintiff raised no arguments concerning his claims under Labor Law §§ 240(1) and 241(6) either in opposition to defendant’s motion or on appeal. As such, the Court held those claims are deemed abandoned.
PRACTICE POINT: The lesson here is obvious; you must submit opposition papers where your opponent seeks dismissal or the court will deem your claims abandoned and dismiss them.
Labor Law § 200 and Common-Law Negligence (VCP)
The First Department affirmed the denial of Premiere’s motion in regards to the Labor Law § 200 claim, finding issues of fact. Given its responsibilities regarding the construction work—responsibilities that resemble those of a construction manager—there are issues of fact as to whether Premiere was a statutory agent of the owner and general contractor, i.e., whether it exercised control over the work site. Premiere CEO Grimes's testimony supports plaintiff's claim that Premiere exercised general control over the work site. Not only did Premiere hire and schedule the repair people and oversee the quality of their work, but they also interacted with construction teams on a day-to-day basis, told them if they were displeased with work, made decisions about the work, and reminded the teams to move materials around to insure clear access to apartments and stairways. Premiere was authorized to shut down the job if there was a dangerous or unsafe condition, and before plaintiff's injury Premiere spoke with D.P. workers about not leaving tools and construction dust in the common areas. From these facts, a jury could find that Premiere exercised control over the worksite.
There are also issues of fact as to whether Premiere had constructive or actual notice of the condition that caused the accident, and whether the tool bag that plaintiff tripped over was readily observable by reasonable use of the senses, considering plaintiff's age, intelligence and experience.
December 13, 2016
Appellate Division, First Department
Plaintiff was allegedly injured while operating a heavy pallet jack being maneuvered down a ramp covered in water when the front wheel of the jack ran over his right foot. In his affidavit, plaintiff stated that by looking at photographs taken after the accident, he was able to recognize that the weight of the load caused the jack to tip and “hydroplane.”
The trial court granted plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim against defendants SDS William Street, 15 William Street, Bovis, and Liberty, and denied those defendants’ cross-motion to dismiss the Labor Law § 240(1) claim.
The First Department determined that plaintiff’s accident was not due solely to a hydroplaning piece of equipment, but “it was due to the slide down a slope of a heavy piece of hydroplaning equipment whose traction and braking mechanism were not up to the task.” The Court held the jack, with its built-in braking mechanism, failed to provide plaintiff adequate protection against the gravity-related risk inherent in transporting the heavy load down the water-covered ramp.
Thus, the Court held defendants failed “to provide adequate protection against the risk that was created in part by the significant elevation differential of the ramp, relying on Aramburu v Midtown West B, LLC, 126 AD33d (1st Dept 2015).
PRACTICE POINT: The ever increasing scope of the labor law as a result or the Runner decision continues. When a plaintiff can run over his foot with a pallet jack on a concrete ramp, and have that be deemed a 240(1) case, we are no longer surprised.
December 13, 2016
Appellate Division, First Department
Plaintiff allegedly was injured during demolition of an elevator shaft when he tried to take down two 12-foot vertical steel beams topped by a horizontal steel beam approximately two feet long. He cut into the two vertical beams until they fell over in a “V” shape, and the horizontal beam, still attached to them, hit the floor. When plaintiff bent over to sever the horizontal beam from the left vertical beam, the beam sprang up and hit him in the face.
The trial court denied plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim, and granted defendants’ motions to dismiss that claim. The trial court also denied defendants’ motions to dismiss the Labor Law § 241(6) claim predicated Industrial Code (12 NYCRR) §§ 23-1.8(c)(1) and 3.3(c) regulations.
The First Department held plaintiff’s claim was correctly dismissed because the record demonstrates that plaintiff’s injuries were not the result of a failure to provide proper protection against “the applicable of the force of gravity to an object or person”, but rather was the result of the propulsion of the vertical beam upward by “the kinetic energy of the sudden release of tensile stress in the [beam]”, citing Medina v City of New York, 87 AD3d 907 (1st Dept 2011).
PRACTICE POINT: In order to recover under section 240(1), the Court of Appeals in Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 (1993) held the hazard to which plaintiff was exposed to must have been one “directly flowing from the application of the force of gravity to an object or person.” Here, the plaintiff’s injuries were not the result of the effects of gravity but rather a sudden upward spring. Where the injury is not caused by the application of gravity, 240(1) simply does not apply.
With regard to the Labor Law § 241(6) claim, 12 NYCRR 23-1.8(c)(1) requires hard hats where there is a risk of “being struck by falling objects or materials or where the hazard of head bumping exists.” Based on the court’s finding that this was not a gravity related claim, it found this section inapplicable. NYCRR 23-3.3(c) requires inspections during demolition of a structure “to detect any hazards ... resulting from weakened or deteriorated floors or walls or from loosened material,” which refers to “structural instability caused by the progress of demolition,” a situation the court found not present here.
Accordingly, the court directed that plaintiff’s complaint be dismissed.
December 13, 2016
Appellate Division, First Department
Plaintiff was injured when he fell six to ten feet from the scaffold he was standing atop when the scaffold planks allegedly collapsed under him. The trial court granted plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim, and denied defendant LIMC’s motion to dismiss the Labor Law §§ 240(1) and 241(6) claims.
The trial court also denied LIMC’s motion for summary judgment against Skyline, and denied Skyline’s motion to dismiss the common-law negligence and the cross-claims against it.
The First Department majority affirmed because plaintiff submitted evidence that his company was hired by defendant general contractor NY Fast, and plaintiff received compensation for helping load the dumpsters. Thus, the Court held plaintiff established he was “employed” within the meaning of the Labor Law i.e. he was suffered and permitted to work at the job site, entitling him to partial summary judgment on the issue of liability under his Labor Law § 240(1) claim.
Justice Sweeny dissents and would find a material issue of fact whether plaintiff was an employee entitled to the statutory protections. Although plaintiff testified he was paid extra to assist with loading debris into dumpsters by NY Fast, the president and owner of NY Fast, Mr. Velasquez, testified plaintiff’s company was hired pursuant to an oral contract “only to drive their truck, drop the container on the street and leave.” Mr. Velasquez also denied that plaintiff was paid for working on the demolition site beyond delivery of the dumpsters.
PRACTICE POINT: Findings from the Workers’ Compensation Board decisions are only entitled to preclusive effect barring re-litigation of issues of ultimate fact where the issues have been conclusively determined against one party in a proceeding where that party had a full and fair opportunity to litigate the issue. Additionally, it is the burden of the party seeking to invoke the doctrine of collateral estoppel to establish identity of issue. It is also important to note that an “employee” is defined differently in the Workers’ Compensation Law versus the Labor Law.
Labor Law § 200 and Common-Law Negligence (VCP)
The First Department held that the common-law negligence claim must be dismissed as against Skyline, because there is no evidence that Skyline created the condition that resulted in the collapse of the scaffold. The record shows that the scaffold did not receive any code violations following a city inspection and that there were no complaints about the condition of the scaffold after its installation, and plaintiff's testimony establishes that the scaffold was sturdy before the accident.
Guido v Dormitory Auth. of the State of N.Y.
December 22, 2016
Appellate Division, First Department
Plaintiff was loading ladders onto his truck. Although the first ladder he loaded onto the rack atop the truck slid toward the end of the rack as he loaded it, after plaintiff secured it with a bungee cord and loaded the second ladder, instead of taking another of the several bungee cords available to him, he unhooked the bungee cord securing the first ladder, intending to wrap it around both ladders, and the ladders slid into him and knocked him off the truck.
The trial court granted defendants’, third-party defendant Hillside, and second third-party defendant PII’s motions for summary judgment dismiss the complaint, and granted third-party defendant Owen’s motion for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims. The trial court denied Hillside’s motion for summary judgment on its contractual indemnification claim against PII.
The First Department held that although plaintiff was engaged in construction-related activity, his work (retrieving ladders) did not present an elevation-related risk contemplated by Labor Law § 240(1), citing Toefer v Long Is. R.R., 4 NY3d 399, 407-408 (2005). The Court also held any elevation differential resulting from the tilt was de minimis in light of plaintiff’s testimony that he did not notice the tilt of the truck onto which he was loading the ladder.
It did not matter that the Court also found issues of fact exist whether Turner or Sea Crest were responsible for clearing debris from the area where plaintiff parked his truck on debris that allegedly caused it to tilt because plaintiff was held the sole proximate cause of his accident.
PRACTICE POINT: Let’s compare this decision of the First Department with the same department’s Landi decision above. In Landi they held that the ramp, a slanted surface, was the type of elevation related hazard that the labor law was designed to protect against yet here, in the instant case, the slant of the truck did not create an elevation related risk. Why the difference? The answer is likely the degree of damage the slant was capable of causing based on the weight of the object which reacts to the elevation differential. The argument that this should be therefore a question for the jury, as it is clearly a sliding scale based on the individual facts, cannot be far behind.
With regard to § 241(6), the First Department found Industrial Code (12 NYCRR) § 23-1.7(e), which requires that passageways and working areas be kept free of accumulations of dirt and debris, inapplicable since the area outside the gate to the loading dock where plaintiff parked his truck was not a passageway or working area.
Indemnity Issues in Labor Law (SEP)
Hillside was entitled to summary judgment pursuant to its application for contractual indemnity where the incident involved a PII employee, and the loss arose from injury “resulting from acts or omissions” of PII’s employee. Notably, the Court ruled that “acts or omissions” language does not the movant, Hillside, to demonstrate that PII was negligent in any fashion.
Williams v River Place, II, LLC
December 22, 2016
Appellate Division, First Department
Plaintiff allegedly was injured while using a power saw with a blade with broken teeth. He claimed he twice asked his supervisor for a replacement blade which was not furnished.
The trial court granted defendants’ motions for summary judgment dismissing the Labor Law § 241(6) claim predicated on violations of regulations 23-1.5(c)(3) and 1.12(c)(a), the Labor Law § 200 and common-law negligence claims.
The First Department found no evidence that 12 NYCRR 23-1.12(c)(1), which requires that a power saw be equipped with “a movable self-adjusting guard below the base plate which will completely cover the saw blade to the depth of the teeth when such saw blade is removed from the cut,” was violated. However, it found evidence that there were teeth missing from the blade of the saw that plaintiff was using when he was injured. This raised issues of fact whether defendants violated 12 NYCRR 23-1.5(c)(3), which requires that “[a]ll safety devices, safeguards and equipment in use shall be kept sound and operable, and shall be immediately repaired or restored or immediately removed from the job site if damaged,” and whether that violation was a proximate cause of plaintiff’s accident. Lastly, the First Department found that contrary to plaintiff’s contention, the safety consultant was not subject to liability under Labor Law § 241(6).
Labor Law § 200 and Common-Law Negligence (VCP)
The First Department affirmed, holding that since plaintiff's accident was caused not by a dangerous condition of the work site but by plaintiff's employer's means, methods, and materials, and there is no evidence that defendants River Place II, LLC, Larry Silverstein, Silverstein Properties, Inc., Gotham Construction, Co., LLC, and Pro Safety Services, LLC exercised supervision and control over the injury-causing work, the Labor Law § 200 and common-law negligence claims were correctly dismissed. Nor are said defendants liable for any defects in the saw, which was supplied to plaintiff by his employer
December 29, 2016
Appellate Division, First Department
Plaintiff was injured while working at a construction site on property owned by Takara, who retained plaintiff’s employer to replace an outdoor plaza and to perform repair work in the garage directly underneath the plaza. Plaintiff allegedly slipped and fell as he was descending a flight of stairs leading from the plaza to the garage.
The trial court granted defendant Takara’s motion for summary judgment dismissing the complaint alleging violations of Labor Law §§ 241(6), 200 and common-law negligence claims, and denied plaintiff’s cross-motion for partial summary judgment. The trial court also granted third-party defendant Nations’ motion to dismiss the third-party action,.
The First Department found that the trial court properly dismissed the Labor Law § 241(6) claim since plaintiffs failed to demonstrate that Takara violated 12 NYCRR 23-1.7(d), which protects workers against “slipping hazards.” While plaintiff testified during his deposition that he had previously seen dust and rust on the stairs after the power washing of metal I-beams, he also testified that he could not remember how much dust there was or where exactly on the stairs the dust had landed. Further, he testified that he could not remember whether he saw such dust on the stairs the day of the accident, and contrary to plaintiffs’ contention, the photographs in the record did not show existence of such a condition. The court then found that the remaining Industrial Code predicates cited by plaintiffs were not applicable to the facts of this case.
Labor Law § 200 and Common-Law Negligence (VCP)
The First Department held that the Labor Law § 200 and common-law negligence claims were properly dismissed. Where an existing defect or dangerous condition caused the injury, liability attaches if the owner or general contractor created the condition or had actual or constructive notice of it. Here, as plaintiffs were unable to identify what it was exactly that caused Vazquez to slip, they failed to show that Takara or Nations created or had notice of the alleged slippery condition. Furthermore, the record does not support plaintiff's allegation that the subject handrail was unstable due to rust. In any event, even if the record demonstrates a rusty unstable handrail of which Takara had notice, plaintiffs have not shown that such condition was a proximate cause of Vazquez's fall. Rather, the record, including his own testimony, shows that he fell primarily because he lost his balance and was unable to grab onto the rail to stop his fall.
Indemnity Issues in Labor Law (SEP)
While not entirely clear, it appears that Takara commenced a third-party claim against Nations seeking common law indemnity. Where it was determined that Nations was not negligent, it followed that there was no basis for Takara’s claims.
December 7, 2016
Appellate Division, Second Department
Plaintiff was carrying a 30-foot long, 200-pound steel rafter beam on his shoulders, and allegedly was injured when he bent to lower the rafter after he heard his knee “pop”, causing him to fall. The trial court granted defendants general contractor Irwin and construction manager Liro’s motions to dismiss the Labor Law § 200 and common-law negligence claims.
Labor Law § 200 and Common-Law Negligence (VCP)
The Second Department held that the Supreme Court properly determined that Liro was entitled to summary judgment dismissing the Labor Law § 200 and common-law negligence claims against it. Where, as here, the plaintiff's injuries are due to an alleged defect or dangers in the means or methods of how the work was performed, then recovery against a defendant cannot be had under Labor Law § 200 unless it is shown that the party to be charged had the authority to supervise or control the performance of the work. Liro demonstrated its prima facie entitlement to judgment as a matter of law by submitting evidence that it had no authority to supervise or control the performance of the plaintiff's work. Liro's evidence demonstrated that, at most, it had merely general supervisory authority insufficient to impose liability under Labor Law § 200 and common-law negligence. In opposition, the plaintiff failed to raise a triable issue of fact.
The Supreme Court erred, however, in determining that Irwin was entitled to summary judgment dismissing the Labor Law § 200 and common-law negligence claims against it. The evidence submitted by Irwin in support of its summary judgment motion demonstrated that Irwin supervisors were present at the construction site every day supervising the work, and that these supervisors gave the plaintiff his daily work assignments, including the specific task o the date of incident. When the plaintiff complained to the supervisor about the manner in which the work was to be performed, the supervisor told him to “just do it.” Although Irwin's president asserted that Irwin supervisors did not have the authority to direct the manner in which the plaintiff performed his work and that authority was left solely to a subcontractor, Irwin nonetheless failed to eliminate triable issues of fact as to whether Irwin had the authority to supervise and control the manner in which the plaintiff performed his work. Additionally, the evidence submitted by Irwin raised a question of fact as to whether it was negligent to have only one person perform the task of carrying a 30–foot long, 200–pound steel rafter beam. Thus, Irwin failed to eliminate triable issues of fact as to whether it was negligent in the happening of the accident.
Vazquez v Humboldt Seigle Lofts, LLC
December 7, 2016
Appellate Division, Second Department
Plaintiff allegedly sustained injuries while working at a construction site when he fell off a defective ladder and then, five days later, fell down an unfinished staircase. The trial court granted defendant Dynatec’s motion for summary judgment dismissing the Labor Law §§ 240(1), 241(6), 200 and common-law negligence claims.
The Second Department affirmed as defendant established it lacked the authority to supervise or control plaintiff’s work by offering evidence that its role at the worksite was to ensure compliance with design plans through weekly visits lasting no more than three hours, citing Bennett v Hucke, 131 AD3d 993, 994 (2d Dept 2015).
PRACTICE POINT: This case is an important reminder that a party is deemed to be an “agent” of an “owner” and “general contractor” under the Labor Law when it has the authority to exercise supervisory control and authority over the work being done where a plaintiff is injured.
Labor Law § 200 and Common-Law Negligence (VCP)
The Second Department affirmed, holding that the Supreme Court also properly granted those branches of Dynatec's motion which were for summary judgment dismissing the common-law negligence and Labor Law § 200 claims. Here, Dynatec established its prima facie entitlement to judgment as a matter of law dismissing the common-law negligence and Labor Law § 200 causes of actions insofar as asserted against it by submitting evidence demonstrating that it did not control the methods or materials of the plaintiff's work, did not create the dangerous conditions that allegedly caused the accidents, and did not have actual or constructive notice of the dangerous conditions. Specifically, Dynatec's submissions established that it did not provide any materials or safety equipment, perform any work at the construction site, or hire any of the subcontractors that were responsible for those activities. In opposition, the plaintiff failed to raise a triable issue of fact.
Eddy v John Hummel Custom Bldrs., Inc.
December 21, 2016
Appellate Division, Second Department
Plaintiff allegedly was injured when he fell from the back of a moving pickup truck along with an object, a 100-pound cast iron grate, which also fell and struck him. The trial court denied defendant general contractor Hummel’s motion to dismiss the Labor Law § 240(1) claim, and granted plaintiff summary judgment on his Labor Law §§ 240(1) and 241(6) claims predicated upon an alleged violation of Industrial Code regulation (12 NYCRR) § 23-9.7(c) and (e).
The trial court held that a violation of Labor Law § 240(1) occurred because although the statute did not typically apply to injuries caused by materials that fell from a minuscule height during the loading/unloading process, the statute applied here because the falling object required securing for the purposes of undertaking..
The Second Department adopted the Court of Appeals’ reasoning in Dilluvio v City of New York, 95 NY2d 928 (2000) in holding that, as a matter of law, plaintiff’s incident did not result from an elevation-related risk. The Court noted plaintiff’s task at the time of his incident was “riding in a pickup truck” and the Court of Appeals held that task does not present an elevation-related risk.
Moreover, the Court determined plaintiff’s decision to ride in the back of the truck, while sitting on top of a cast iron grate that was lying on the truck’s open tailgate, was as a matter of law the sole proximate cause of plaintiff’s incident.
PRACTICE POINT: There are numerous cases which hold that a fall from the back of a pickup or flatbed truck is, as a matter of law, not an extraordinary elevation-related risk protected by Labor Law § 240(1) but rather one of the usual and ordinary dangers of a construction site and thus not a protected activity. This is so even though plaintiff in this case was injured allegedly both by falling and by the object he was sitting on falling as well. Additionally, this case is a great example of what constitutes sole proximate cause, where the plaintiff choose to do something stupid he had been told not to do but rather to sit in the seat in the front of the pickup truck.
Labor Law § 241(6) states that “[a]ll areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the . . . contractors and their agents for such work . . . shall comply therewith.’
To establish liability under Labor Law § 241(6), a plaintiff must demonstrate that the defendant's violation of a specific rule or regulation was a proximate cause of the accident.’” Here, plaintiff alleged that Hummel violated 12 NYCRR 23-9.7(c) and (e), which pertain to “Motor trucks.” 12 NYCRR 23-9.7(c) provides: “Loading. Trucks shall not be loaded beyond their rated capacities and all loads shall be trimmed before the trucks are moved. Loads that are apt to become dislodged in transit shall be securely lashed in place.” 12 NYCRR 23-9.7(e) provides: “Riding. No person shall be suffered or permitted to ride on running boards, fenders or elsewhere on a truck or similar vehicle except where a properly constructed and installed seat or platform is provided.”
As addressed above, under the circumstances of this case, the sole proximate cause of the accident was the plaintiff’s decision to forgo riding in the front passenger seat of the truck in favor of riding on top of the cast iron grate that was lying on the truck’s open tailgate. Thus, any violation of Labor Law § 241(6) was not a proximate cause of the accident.
Consequently, Hummel established its prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging a violation of Labor Law § 241(6) insofar as asserted against it. In opposition, plaintiff failed to raise a triable issue of fact.
Kane v Peter M. Moore Cosntr. Co., Inc.
December 21, 2016
Appellate Division, Second Department
Defendants the Scagliones retained Moore Construction to perform renovations in their home. The Scagliones also retained plaintiff’s employer, Alternative Closets, to install a custom closet system for their master bedroom. Plaintiff allegedly sustained injuries when he slipped and fell on a drop cloth that had been placed on a staircase by Moore’s employees.
The trial court, after hearing reargument, granted the Scagliones’ motion to dismiss the Labor Law §§ 241(6) and 200 claims but denied their motion to dismiss the common-law negligence claim. The trial court also denied Moore’s motion for summary judgment dismissing and Labor Law §§ 241(6) and common-law negligence claims.
On appeal, the Second Department reversed finding that Moore had established its prima facie entitlement to judgment as a matter of law dismissing so much of the Labor Law § 241(6) cause of action as was predicated upon a violation of Industrial Code (12 NYCRR) § 23-1.7(d). The court relied upon evidence demonstrating that the injured plaintiff’s accident was not caused by a failure to remove or cover a foreign substance. Accordingly, the motion court should have directed the dismissal of the plaintiffs’ Labor Law § 241(6) claim insofar as asserted against Moore.
Labor Law § 200 and Common-Law Negligence (VCP)
The Second Department reversed as to defendant Scagliones, finding that the Scagliones established his prima facie entitlement to judgment as a matter of law dismissing the common-law negligence cause of action insofar as asserted against him in his capacity as the executor of Leslie's estate, by establishing that Leslie neither created nor had actual or constructive notice of the alleged dangerous condition. Constructive notice will not be imputed where, as here, a defect is latent and would not be discoverable upon reasonable inspection. If a defect could not have been discovered by a layman, even by inspection, it is considered a latent defect. In opposition, the plaintiffs failed to raise a triable issue of fact.
The Second Department affirmed the denial of that branch of Moore Construction's motion for summary judgment dismissing the common-law negligence cause of action insofar as asserted against it, as Moore Construction failed to establish, prima facie, that one of its employees did not create the alleged dangerous condition. Since Moore Construction failed to meet its prima facie burden, that branch of its motion was properly denied without regard to the sufficiency of the plaintiffs' opposition papers.
Indemnity Issues in Labor Law (SEP)
Because the common law claims against Nicholas, and his deceased wife, for whom he served as executor were dismissed, it too followed that Moore’s cross-claims for common law indemnity were also dismissed. Simply stated, common law indemnification requires the proposed indemnitor to have been negligent. Where no such negligence can be found, no such claim can be made.
Palomeque v Capital Improvement Servs., LLC
December 21, 2016
Appellate Division, Second Department
Plaintiff allegedly was injured when he was struck in the head with a pipe. The general contractor, Capital, retained the plumbing subcontractor, Metro, whose employee testified he was descending from a ladder when he swung a pipe that he was holding and hit plaintiff.
The trial court denied Metro and Capital’s motions for partial summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims, and as relevant here granted Capital’s cross-motion for summary judgment on its contractual indemnification claim against Metro.
The Second Department reversed and dismissed this claim against Capital and Metro as each demonstrated their prima facie entitlement to judgment as a matter of law by demonstrating plaintiff’s injury was not the direct consequence of the application of the force of gravity to an object or person, relying on Gasques v State of New York, 15 NY3d 869 (2010).
PRACTICE POINT: Swinging a pipe is not the application of gravity to the pipe and thus it is not a 240(1) case. Here the Second Department agrees with the first above in the Quishpi case where a beam sprang up. Gravity needs to be the cause of the injury, not some other cause, for 240(1) to apply.
The Second Department reversed with regard to the Labor Law § 241(6) cause of action as well finding that Capital and Metro each made a prima facie showing that 12 NYCRR 23-1.8(c)(1) was inapplicable to the facts of this case. This section states “(1) Head protection. Every person required to work or pass within any area where there is a danger of being struck by falling objects or materials or where the hazard of head bumping exists shall be provided with and shall be required to wear an approved safety hat.” And, in opposition, plaintiffs failed to raise a triable issue of fact. Any claims pursuant to 12 NYCRR 23-1.8(c)(1) was abandoned by failing to address those provisions in their brief on appeal.
Indemnity Issues in Labor Law (SEP)
Keeping is simple, stupid. Capital established that it was not negligent, and also that its contract with Metro included a contractual indemnity clause. At that point, the burden shifted to Metro to raise a question of fact. It could not, and Capital as awarded summary judgment on indemnity as a result.
December 21, 2016
Appellate Division, Second Department
Plaintiff allegedly was injured when he fell into a hole in the basement of a defendant Owners’ Corp.’s building and managed by defendant Merlot. The trial court granted the general contractor, DJM’s motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims, and denied plaintiff’s cross-motion. The trial court also granted Deep Water summary judgment on its conditional common-law indemnification claim against GRT.
Labor Law § 200 and Common-Law Negligence (VCP)
The Second Department held that the Supreme Court erred in granting those branches of the motion of the general contractor, DJM, which were for summary judgment dismissing the common-law negligence and Labor Law § 200 claims asserted against it. Contrary to DJM's contention, the protection of Labor Law § 200 is not confined to construction work, and encompasses the plaintiff's work in this case.
Further, DJM failed to establish, prima facie, that it did not have control over the work site, or that it did not create or have actual or constructive notice of the alleged dangerous condition. Accordingly, those branches of DJM's motion which were for summary judgment dismissing the causes of action alleging common-law negligence and a violation of Labor Law § 200 insofar as asserted against it should have been denied, regardless of the sufficiency of the plaintiff's opposing papers.
Indemnity Issues in Labor Law (SEP)
Deep retained GRT as a sub-subcontractor, and argued that its responsibility was solely vicarious of GRT. As such, Deep reasoned it should be entitled to common law indemnification. However, the problem with Deep’s application was not its theory, but its proof. Where, as here, Deep failed to prove that it faced no exposure due to its own negligence, its motion for summary judgment was properly denied.
Cardenas v 111-127 Cabrini Apts. Corp.
December 28, 2016
Appellate Division, Second Department
Plaintiff allegedly fell from the top of a ladder while painting a wall in a co-op building owned by defendant 111-127 and managed by the Argo defendants. The trial court granted plaintiff’s cross-motion for summary judgment on his Labor Law §§ 240(1) and 241(6) claims.
The Second Department held plaintiff established that defendant violated the statute as the owner of the building where plaintiff was working and provided a ladder with a defective supporting bracket which caused the ladder to move and plaintiff to fall. Defendant did not offer any evidence, other than mere speculation, to refute plaintiff’s showing or raise a bona fide issue as to how the accident occurred.
PRACTICE POINT: Where the plaintiff informs his employer that the ladder he has been issued is unsafe and he is told to use that ladder, and the ladder and supporting bracket failed causing the plaintiff to fall, then there is no surprise that the court found that there was a violation of 240(1).
However, with regard to the defendant’s liability under Labor Law § 241(6), the plaintiff failed to establish entitlement to summary judgment. Although the evidence demonstrated that the ladder’s defective supporting bracket, which the plaintiff had complained about prior to the accident, constituted a violation of 12 NYCRR 23-1.21(b)(3), the plaintiff failed to demonstrate his freedom from comparative negligence.
December 23, 2016
Appellate Division, Fourth Department
Plaintiff allegedly was injured while he was removing and replacing a sewer pipe in the basement of defendants’ pizzeria. According to plaintiff, while standing at ground level, he was allegedly struck in the shoulder by a falling pipe weighing approximately sixty pounds.
The trial court granted defendants’ motion for summary judgment dismissing the complaint, and denied plaintiff’s cross-motion for partial summary judgment on his Labor Law § 240(1) claim.
The Fourth Department held that although there is conflicting deposition testimony concerning the exact elevation of the pipe, and that the pipe was always within reach, the Court held plaintiff’s injury did not fall within the scope of the statute because “any height differential between plaintiff and the pipe that fell on him was de minimis.”
Justices Whalen and Peradotta dissent and hold that plaintiff’s activity clearly posed a significant risk to his safety due to the position of the heavy pipe above his head, even if such elevation differential was slight, and it was thus a task where a securing device of the kind enumerated in the statute was necessary and expected.
PRACTICE POINT: Here the Fourth Department, never exactly a bastion of conservative application of the breath of the labor law, finds that a one foot height differential between the plaintiff’s head and the height of the pipe, is de minimis as a matter of law for a pipe tipping over. This will allow an argument in the future that a falling object falling the same distance is similarly de minimis, we will see how far that gets us when the object is very heary and causes a severe injury.
LABOR LAW § 241(6) REGULATIONS; SPECIFIC OR GENERAL (MAS)
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12 NYCRR § 23-1.8(a) – Protection in Construction, Demolition and Excavation Operations; Personal protective equipment; Eye protection. |
§ 23-1.8(a), requires eye protection equipment during welding, burning or cutting or in chipping, cutting or grinding any material from which particles may fly or while engaged in any other operation which may endanger the eyes, and is sufficiently specific. |
Dennis v City of New York, 304 AD2d 611, 758 NYS2d 661 (2d Dept 2003); Beshay v Eberhart L.P. No. 1, 69 AD3d 779, 893 NYS2d 242 (2d Dept 2010); Guryev v Tomchinsky, 87 AD3d 612, 928 NYS2d 574 (2d Dept 2011); Zamajtys v Cholewa, 84 AD3d 1360, 924 NYS2d 163 (2d Dept 2011); Buckley v Triborough Bridge and Tunnel Authority, 91 AD3d 508, 937 NYS2d 25 (1st Dept 2012); Mouta v Essex Market Development, LLC, 106 AD3d 549, 966 NYS2d 13 (1st Dept 2013); Montenegro v P12, LLC, 130 AD3d 695, 13 NYS3d 241 (2d Dept 2015); Quiros v Five Star Improvements, Inc., 134 AD3d 1493, 22 NYS3d 736 (4th Dept 2015); Bundo v 10-12 Cooper Square, Inc., 140 AD3d 535, 34 NYS3d 31 (1st Dept 2016); Ramos v Penn Tower, LLC, 136 AD3d 1009, 25 NYS3d 348 (2d Dept 2016); Paulino v Bradhurst Associates, LLC, 144 AD3d 430, 41 NYS3d 476 (1st Dept 2016)
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Dennis held π sufficiently raised a triable issue of fact whether or not he was engaged in an activity that endangered his eyes at the time of his incident and whether or not his incident was foreseeable. During opening statements, πs’ counsel admitted π was wearing protective eye gear just prior to his incident but chose to remove the gear to clean it; thus, Beshay held admission absolved ∆ of liability under reg. Guryev held π failed to eliminate triable issues whether, when he was using nail gun to renovate condo unit, he was engaged in work that “may endanger the eyes” as required under reg to be entitled to SJ against ∆s. Zamajtys held ∆s not liable where π was not engaged in any activity that might endanger the eyes. Buckley held whether activity in which π engaged presented foreseeable risk of eye injury under reg was question for jury when lanyard hook snapped back from basket lift & struck him in eye. Mouta held reg inapplicable where π allegedly injured when he stepped on section of plywood that, unbeknownst to him, was being dismantled & he fell from 4th floor to 2nd flr. Montenegro found issue of material fact whether π’s use of pneumatic nail gun made possibility of injury to eye sufficiently foreseeable so as to require eye protection & whether approved eye protection was provided to π on date of his incident, precluding summary judgment to π Quiros held triable issues exist whether ∆ provided eye protection or made such available to π & if so whether he was comparatively negligent in refusing to use eye protection when nail from gun he was using ricocheted & penetrated his right eye. Bundoo held π’s testimony that debris flew into eye while grinding stone w/o wearing goggles established prima facie ∆s liability under reg where π aware of need for goggles & asked employer but was told to begin work w/o them. Ramos found issue of material fact as to π’s comparative fault & whether goggles were available for use when a piece of wood flew back & hit his right eye while using a table saw to cut wood on ∆’s premises. Paulino held issue of fact whether π engaged in work which may endanger eyes when he was struck in eye by screw from power drill he was using to secure sheet rock to ceiling of apartment. |
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Labor Law Pointers
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