Labor Law Pointers

 

Volume VI, No. 7

Wednesday, May 3, 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. 

 

Usually I have a photo which is both funny and leads us to thoughts of the Labor Law, but today I include an interesting scenario laid out in the accident report response below.  Read this and then we will have the questions after:

 

I am writing in response to your request for additional information in Block 3 of the accident report form I submitted.  I put 'poor planning' as the cause of my accident. You asked for a fuller explanation and I trust the following details will be sufficient. 

 

I am a bricklayer by trade. On the day of the accident, I was working alone on the roof of a new six-story building. When I completed my work, I found that I had some bricks left over which, when weighed later were found to be slightly in excess of 500 lbs.  Rather than carry the bricks down by hand, I decided to lower them in a barrel by using a pulley, which was attached to the side of the building on the sixth floor. Securing the rope at ground I went up to the roof, swung the barrel out and loaded the bricks into it.  Then I went down and untied the rope, holding it tightly to ensure a slow descent of the bricks.  You will note in Block 11 of the accident report form that I weigh 135 lbs.  Due to my surprise at being jerked off the ground so suddenly, I lost my presence of mind and forgot to let go of the rope.  Needless to say, I proceeded at a rapid rate up the side of the building.  In the vicinity of the third floor, I met the barrel, which was now proceeding downward at an equally impressive speed. This explained the fractured skull, minor abrasions and the broken collar bone, as listed in section 3 of the accident report form.  Slowed only slightly, I continued my rapid ascent, not stopping until the fingers of my .right hand were two knuckles deep into the pulley. 

 

Fortunately by this time I had regained my presence of mind and was able to hold tightly to the rope, in spite of beginning to experience pain.  At approximately the same time, however, the barrel of bricks hit the ground and the bottom fell out of the barrel.  Now devoid of the weight of the bricks, that barrel weighed approximately 50 lbs.  I refer you again to my weight. As you can imagine, I began a rapid descent, down the side of the building. In the vicinity of the third floor, I met the barrel coming up.  This accounts for the two fractured ankles, broken tooth and several lacerations of my legs and lower body. Here my luck began to change slightly.  The encounter with the barrel seemed to slow me enough to lessen my injuries when I fell into the pile of bricks and fortunately only three vertebrae were cracked.

 

I am sorry to report, however, as I lay there on the pile of bricks, in pain, unable to move, I again lost my composure and presence of mind and let go of the rope and I lay there watching the empty barrel begin its journey back down onto me.  This explains the two broken legs. 

 

So the question for you is simple, is this a labor law case?

 

Starting with the 4 basic questions first the plaintiff was “so employed” an appropriate labor law plaintiff.  Second I can assume he will sue the owner and general contractor on the project as appropriate defendants.  Third the overall project appears to have been construction.  Lastly we have, in order I believe, a falling object (see Runer), a falling worker and then a falling object once again.

 

As a reminder we are available to provide training to any and all that may want some, on any topic labor law or risk transfer related, in person or as a webinar.  Just give me a call or send an email.

 

Enjoy the start of summer, if it ever stops raining.  Until next month.

           

David

 

Description: Description: C:\Users\dra\Pictures\Adams HighC.jpg

 

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.

 

 

O'Leary v S&A Elec. Contr. Corp.

April 13, 2017

Appellate Division, First Department

 

Plaintiff was shocked by temporary electrical wiring laid on the floor of defendant/second third-party plaintiff 1435 Broadway, LLC’s (Owner) building while overseeing renovation work performed by his employer, Nygard, who leased the building from Owner. Nygard's principal oversaw and directed plaintiff’s work.

   

The trial court granted plaintiffs' motion for partial summary judgment on his Labor Law § 241(6) claim and denied Owner’s motion to dismiss that claim. The trial court also denied Owner’s motion for contractual indemnification against Nygard; and denied Nygard's motion to dismiss the first and third-party complaints.  

 

Labor Law § 241(6) (MAS)

 

The First Department affirmed as to the Labor Law § 241(6) claim predicated upon Industrial Code regulation (12 NYCRR) § 23-1.13(b)(4), which requires that workers who may come into contact with an electric power circuit be protected against electrical shock “by de-energizing the circuit and grounding it or by guarding such circuit by effective insulation or other means.”

 

Since plaintiff was shocked, which demonstrated the circuit was not de-energized, grounded, or guarded by effective insulation, the Court held plaintiff established a violation of 1.13(b)(4) and that said violation was a result of negligence by Nygard, for which Owner is vicariously liable because of “the principal’s insistence that plaintiff perform the temporary wiring work, despite plaintiff’s objections, established; citing to Velasquez v 795 Columbus LLC, 103 AD3d 541, 542 (1st Dept 2013).

 

PRACTICE POINT: The important lesson here is that liability issues are not implicated when disputing whether a plaintiff’s injuries were caused by the electrical shock; rather, it is a damages issue that will not prevent a plaintiff from obtaining summary judgment.

 

Indemnity Issues in Labor Law (SEP)

 

Owner established that the Common Law Negligence claim/Labor Law § 200 claim was without merit. Owner also established that it had a valid contract between itself and the plaintiff’s employer, Nygard. 

 

In a tale as old as time…Zero Negligence + Valid Contract = Contractual Indemnity. 

 

 

DiCembrino v Verizon N.Y. Inc.

April 18, 2017

Appellate Division, First Department

 

Plaintiff testified at his deposition he fell because he missed a step on the ladder as he descended it, and he did not attribute his fall to any inadequacy of the 12-foot A-frame ladder he was using. Conversely, he stated in his affidavit his accident occurred when the ladder wobbled, and his foot slipped on debris placed on a ladder rung that lacked non-slip treads. The trial court denied his motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) claim.

 

Labor Law § 240(1) (DRA)

 

The First Department unanimously affirmed denial of plaintiff’s motion because the conflict inherent in the injured plaintiff’s own account raised an issue of fact as to whether it was caused by defendants’ failure to provide an adequate safety device, or solely by plaintiff’s own conduct. 

                                     

PRACTICE POINT:  At first blush it seems incredible that the court did not grant Summary Judgment to the defendant based on the plaintiff’s complete change of story for the Summary Judgment motion but a careful reading will point out that the defendant did not make a motion for Summary Judgment, but rather merely opposed the plaintiff’s motion.  There is seldom and reason not to move, or cross move, where you have an argument to make.  The exception is when your position is truly without merit and making the motion will cause the court to look at your position in all regards with a jaundice eye.

 

Albarado v French Council LLC

April 20, 2017

Appellate Division, First Department

 

Plaintiff allegedly fell six feet from a makeshift scaffold while doing plastering work in a private residence. Plaintiff testified his employer instructed him on his work, not the homeowner. The trial court granted defendants’ motions for summary judgment dismissing the complaint, and denied plaintiff's cross-motion for partial summary judgment on his Labor Law § 240(1) claim. 

 

Labor Law § 240(1) (DRA) 

 

The First Department unanimously affirmed because of the applicability of the homeowner’s exemption.

 

PRACTICE POINT:  An owner of a one or two family dwelling who does not supervise, direct or control the method or means of the work is exempt from the labor law as long as the work is being done for residential purposes and not commercial.

 

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

 

The First Department held plaintiff’s Labor Law § 200 and common-law negligence claims were properly dismissed as plaintiff testified his employer instructed him on his work, and there is no evidence defendants exercised any supervision or control over plaintiff's work.

 

 

Gecaj v Gjonaj Realty & Mgt. Corp.

April 25, 2017

Appellate Division, First Department

 

Plaintiff allegedly fell from a defective ladder at defendants’ premises and filed suit. The trial court granted plaintiff’s motion for default judgment and ultimately awarded plaintiff $900K. Four years later, the trial court granted defendants’ motion to vacate and leave to file an answer.

 

Labor Law § 240(1) (DRA) 

 

The First Department reversed as defendants failed to present a reasonable excuse for their default. Defendants’ principal affirmed he received the complaint, motions, court letters, and even the decision awarding judgment against his company. He claimed each time he received a document, he sent it to the broker who replied everything is “under control” but the broker sent all the documents to the wrong carrier mistakenly and therefore, no one was ever appointed to appear for defendants until the principal became “alarmed and reached out an attorney”.

 

The majority held an “assertion by a defendant that it believed its insurer “was providing a defense is unsubstantiated and unreasonable in light of [defendant’s] conceded receipt of plaintiff’s motion for leave to enter a default judgment”, as receipt of court documents and motions was notice that the insurer did not answer the complaint, citing Trepel v Greenman-Pedersen, Inc. and Spitzer v Landau.

 

The majority also rejected defendants’ prejudice argument because their carrier disclaimed coverage. Six days after moving to vacate, defendants sued their broker for negligent misrepresentation. The Court also found the damages award excessive.

 

The majority also held that to the extent the dissent implies that plaintiff’s installation of a security camera is not a protected activity, the Second Department in Guzman v Gumley-Haft, Inc., 274 AD2d 555, 556 (2d Dept 2000) found to the contrary.

 

Justice Friedman’s dissent would affirm the trial court’s decision, finding the default excusable and not liking that the majority’s decision essentially held that “when a party receiving legal papers does not simply ignore them, but forwards them to an insurance broker or carrier, in reliance on the broker or carrier to take appropriate action, an ensuing default – even if the party’s reliance on the broker or carrier was not entirely reasonable – is excusable, subject to the trial court’s discretion.

 

PRACTICE POINT:  Easy one here, do not ignore the complaint, and if you do, certainly do not ignore the motion for a default.  The court has a great deal of discretion in their rulings on default but just make sure you answer.

 

 

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

 

The First Department held that since the majority concluded defendants failed to set forth a reasonable excuse for their default, it is not necessary to consider whether defendants demonstrated a meritorious defense. However, in light of the dissent's contention that “it seems doubtful that there is any basis for a negligence or Labor Law § 200 claim against defendants,” and it is unclear whether plaintiff's work “falls within the scope of Labor Law § 240(1),” the majority points out that although some of the claims alleged by plaintiff may not have survived, Defendants’ principal explicitly stated that he remembers hiring a company to do some “security camera work/repair at 28–47 Webb Avenue, Yonkers, NY, on or about May 7, 2010,” which is the date of plaintiff's accident, when he claims to have fallen from a defective ladder.

 

The Court found irrelevant the assertion that Defendants’ principal never employed plaintiff, and that plaintiff has never been employed by any of the defendants. These were not plaintiff's claims; rather, he alleges that his employer was hired by defendants to perform work at the premises at 28–47 Webb Avenue, so there would have been no reason for Defendants’ principal to have met plaintiff personally. Although Defendants’ principal claims defendants never directed or supervised plaintiff's work, or provided him with a ladder and/or scaffold to do any work, plaintiff alleges he was involved in repairing/installing security cameras at the premises when he fell from a defective ladder. The Court held this sufficient to bring this case within the ambit of the Labor Law, and rejected the principal claims that defendants never directed or supervised plaintiff's work, or provided him with a ladder and/or scaffold to do any work as irrelevant and unavailing.

 

 

Trinajstic v St. Owner, LP

April 25, 2017

Appellate Division, First Department

 

Plaintiff, a flooring refinisher, was in the process of placing protection over newly refinished floors at the time he fell at defendants’ premises. The trial court denied defendants motion to dismiss the Labor Law § 241(6) claim predicated upon Industrial Code regulation 1.7(d), and on their third-party claim for common-law indemnification against third-party defendant Pellegrini. The trial court also denied Pellegrini’s motion to dismiss the third-party action.

 

Labor Law § 241(6) (MAS)

 

The First Department held the trial court correctly found questions of fact as to whether workers employed by Pellegrini created the dust that allegedly contributed to plaintiff’s fall, which barred dismissal of his Labor Law § 241(6) claim. The Court noted the fact that plaintiff’s job duties on the project also included some cleaning and debris removal did not bar his claim as the record indicates plaintiff was not engaged in cleaning the dust or broken tiles that caused him to fall.

 

Indemnity Issues in Labor Law (SEP)

 

Here, the evidence submitted suggested that plaintiff may have fallen on dust or due to broken/loose floor tiles.  Under such a circumstance, a question of fact existed as to negligence; thus, rending any common law indemnity application premature.

 

 

Benavidez-Portillo v G.B. Constr. & Dev., Inc.

April 5, 2017

Appellate Division, Second Department

 

GB Construction allegedly was the general contractor for siding and roofing work on a home, who retained third-party defendant Marcor to perform the roofing work. Plaintiff, an employee of Marcor, allegedly was injured while performing roofing work when he fell from the roof of a garage at the subject property. The trial court denied plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim finding summary judgment premature.

                     

Labor Law § 240(1) (DRA)

The Second Department affirmed denial of plaintiff’s motion although for different reasons. The Court found plaintiff established prima facie that GB was the general contractor within the meaning of the Labor Law, adequate safety devices were not provided to plaintiff, and that the violation was a proximate cause of his injuries.

However, the Court also held Marco raised a triable issue of fact as to whether plaintiff was the sole proximate cause of his own injuries by submitting evidence that he was not authorized or instructed to work on the roof of the garage at the time of the accident.                                

PRACTICE POINT:  The first issue was if the defendant was a contractor as contemplated by the statute.  Here the defendant was deemed to be the general contractor, thus an appropriate defendant.  There were differing accounts of the task the plaintiff was on site to engage in, and as there were different accounts as to the instruction given to the plaintiff a question of fact was the result.

 

 

Johnsen v City of New York

April 12, 2017

Appellate Division, Second Department

 

The trial court denied defendants Munoz Engineering and Munoz Surveying’s (the Munoz defendants) motion for summary judgment dismissing plaintiff’s Labor Law §§ 240(1), 241(6), 200 and common-law negligence claims.

 

Labor Law § 240(1) (DRA) 

 

The Second Department affirmed as the Munoz defendants failed to establish that were not agents for purposes of the Labor Law; and that they had no authority to supervise or control the work. Likewise, the Court held the Munoz defendants failed to establish entitlement to dismissal of the cross-claims based upon common-law negligence/contribution, indemnification and breach of an obligation to procure insurance. As such, the Court did not even consider the sufficiency of the opposition papers.

 

PRACTICE POINT:  Remember that the standard to be a valid defendant in a 240(1) claim is that the defendant must have the authority to supervise, direct or control the means and methods of the accident producing work, not if they actually exercise that authority. 

 

 

Pruszko v Pine Hollow Country Club, Inc.

April 19, 2017

Appellate Division, Second Department

    

Plaintiff was tasked with loading tiles and concrete into plastic containers which were placed on the platform of a truck. Plaintiff’s foreman drove the truck a short distance to a dumpster. Plaintiff rode in the back at the foreman’s direction with the tailgate closed. Plaintiff allegedly was injured as the truck returned with empty containers, when the rear wheel came in contact with a retaining wall, the truck suddenly stopped, and plaintiff hit his left knee and fell to the bed of the truck.

 

Defendant Pine Hollow owned the property and retained Circle Rose as the general contractor. The trial court denied Circle Rose’s motion and Pine Hollow’s cross-motion to dismiss the Labor Law § 241(6) claim predicated upon Industrial Code regulation 23-9.7(e).

 

Labor Law § 241(6) (MAS)

 

Industrial Code regulation 23-9.7(e), entitled Motor Trucks – Riding, prohibits people from riding “on running boards, fenders or elsewhere on a truck or similar vehicle except where a properly constructed and installed seat or platform is provided” (emphasis added). Here, the Court read “platform” to include the platform of a pickup truck. Accordingly, the Court found defendants demonstrated that plaintiff could not establish a violation of 9.7(e), and as a result the Court reversed the trial court and dismissed this claim.

 

 

Esquivel v 2707 Creston Realty, LLC

April 26, 2017

Appellate Division, Second Department

 

Plaintiff, an elevator mechanic, reported to defendant’s residential building to fix one of the building’s elevators. The elevator room was located on the roof and was accessible only by climbing a fixed, permanent ladder. After completing his work in the room, plaintiff began to descend the ladder when his foot allegedly slipped on one of the ladder’s metal rungs and he fell.

 

The trial court denied both plaintiff’s and defendant’s summary judgment motions on the Labor Law § 240(1) claim, and granted defendant’s cross-motion to dismiss the Labor Law § 200 and common-law negligence claims. 

                                         

Labor Law § 240(1) (DRA) 

 

The Second Department affirmed as to defendant, who failed to establish prima facie that plaintiff was not engaged in a covered activity, finding the evidence supported plaintiff's contention that he was repairing a malfunctioning elevator car when the accident occurred.  The Court noted that under the facts of this case, the permanently affixed ladder functioned as a “safety device” because it provided the only means of access to the elevator room.

 

The Court affirmed as to plaintiff because the evidence submitted raised triable issues of fact as to whether the ladder afforded him adequate protection for entering and exiting the motor room. 

 

PRACTICE POINT:  I always have an issue with these cases.  When there is an un-witnessed accident, and the plaintiff has died, it is pure speculation that the plaintiff fell as a result of a failure of the safety device and not just because he lost his balance.  While I completely understand that the burden is on the moving party, it certainly seems to me that where the plaintiff can never provide anything beyond speculation as to why the plaintiff fell that Summary Judgment is warranted.  I have been on this soap box before and will likely be there again.

 

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

 

The Second Department held that those branches of defendant’s cross-motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims were properly granted because defendant established, prima facie, that it did not create the allegedly dangerous condition, or have actual or constructive notice of such condition. Plaintiff failed, in opposing the motion, to raise a triable issue of fact.

 

 

Miller v Larkin

April 6, 2017

Appellate Division, Third Department

 

Larkin entered into a written “restoration agreement” with third-party defendant, Heritage, to perform lead abatement work. The restoration agreement required Heritage to provide Workers' Compensation to “relieve [Larkin] of liability from any accidents that may arise during [Heritage's] performance of the work”.

 

Plaintiff fractured his wrist working for Heritage and sued Larkin alleging violations of Labor Law §§ 240, 241, 200, as well as common-law negligence. Larkin, in turn, commenced a third-party action against Heritage seeking contractual indemnification. The trial court, as relevant here, denied Heritage’s motion to dismiss Larkin’s third-party claims, finding a question of fact whether Larkin was entitled to indemnification under Workers’ Compensation Law § 11.

 

Indemnity Issues in Labor Law (SEP)

 

On appeal, the Appellate Division noted that Larkin planned to build out an existing structure over the course of four distinct phases.  The first phase undoubtedly contained a contractual indemnity clause which ran in favor of Larkin.  Larkin, thereafter, retained Heritage for phases 2 and 3 of the project, and it was during phase 3 that Mr. Miller sustained injury.  At depositions, Larkin’s representative testified that the contract was executed for phase 1 of the project, but it was considered the “master” contract for the rest of the phases. 

 

In contrast, Heritage’s representative testified that the only written contract, and therefore written indemnity agreement, covered phase 1.  Heritage was retained for phases 2 and 3, but it was an oral agreement.  In addition, Heritage presented a written proposal for phase 3 which suggested it was separate and distinct. 

Larkin countered back by noting that Heritage produced a certificate of insurance for Larkin in phases 1, 2 and 3, respectively.

 

On the record before the Court, a question of fact existed as to whether the phase 1 indemnity agreement was meant to apply to phases 2 and 3, thereafter.

 

 

Vogler v Perrault

April 13, 2017

Appellate Division, Third Department

Plaintiff allegedly was injured when he fell from a ladder while performing exterior work on defendant’s house. Plaintiff testified defendant told him he planned to rent both halves of the two-family home. Defendant claimed he intended to use the house, at least in part, as his own.

The trial court denied defendant’s motion for summary judgment dismissing the complaint alleging Labor Law §§ 240, 241, 200 as well as common-law negligence, finding (1) triable issues of fact existed as to the applicability of the homeowner's exemption to plaintiff's Labor Law §§ 240 and 241 claims, and (2) issues of fact as to plaintiff's Labor Law § 200 and common-law negligence claims.

Labor Law § 240(1) (DRA) 

 

The homeowner exemption to § 240(1) does not “encompass homeowners who use their one or two-family premises entirely and solely for commercial purposes. In this regard, “renovating a residence for resale or rental plainly qualifies as work being performed for a commercial purpose”. The relevant inquiry is “the homeowners’ intentions at the time of the injury underlying the action”.

 

Here, the Third Department held defendant’s submissions, when viewed in the light most favorable to the nonmoving party, failed to meet his prima facie burden of establishing his entitlement to the homeowner’s exemption.

 

PRACTICE POINT:  When having work done on a home it is a good idea to have a written plan as to the eventual plan for the use of the building if it is to be a personal dwelling.  That is something which can be used as proof of the intention of the owner to use it for a personal dwelling.

 

 

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

 

The Third Department reached a similar conclusion in denying defendant’s motion to dismiss the Labor Law § 200 claim. Plaintiff testified defendant supplied him with a ladder that was too short for the fascia project that defendant’s tasked him with and, despite voicing his concerns about the ladder, defendant told plaintiff the project needed to be completed before plaintiff left. Plaintiff further testified defendant thereafter held the same ladder that plaintiff said was too short while plaintiff climbed it and then reached to attempt the fascia work before falling.

 

Considering the foregoing, and viewing the evidence in the light most favorable to plaintiff, defendant failed to meet his initial burden inasmuch as he failed to establish that he did not create or have actual notice of the dangerous condition of the inadequately short ladder or that he had an inadequate opportunity to remedy said condition. Defendant’s alternative argument that he is entitled to dismissal of these claims because plaintiff was the sole proximate cause of his accident is improperly raised for the first time on appeal and, in any event, lacked merit.

 

 

Burke v Arcadis G&M of N.Y. Architectural & Eng'g Servs., P.C.

April 28, 2017

Appellate Division, Fourth Department

 

Plaintiff was injured excavating hazardous materials, and brought a Labor Law § 200 claim against various entities, including defendants. Stay with me here; plaintiffs served discovery demands, requesting “all correspondence” relating to the project, then served a second set of demands requesting additional documents equally broad. Defendants responded by producing some documents but objecting to many demands as “overbroad, unduly burdensome, and not calculated to obtain discoverable material.”

 

Plaintiff sent a good-faith letter requesting a description of the correspondence each defendant had in its possession. Defendants replied they were under no obligation to provide plaintiffs with the material requested, and declined to “correct a palpably bad discovery demand”. Plaintiffs sent a deposition notice for a person knowledgeable of the location, organization, identification, and form of defendants’ records. Defendants advised they would not appear for depositions prior to plaintiff so plaintiffs asked for court intervention.

 

The trial court sent a letter stating defendants were correct as to priority of depositions and the breadth of plaintiffs' discovery demands, and advised plaintiff tailor his demands. A third set of discovery demands was then sent with 168 disclosures and again defendants responded with objections to each demand as overbroad and unduly burdensome.

 

After plaintiff filed his motion to compel, defendants served plaintiffs with a number of responsive documents. The trial court heard oral argument and thereafter plaintiffs sent a proposed order to the court that granted plaintiffs’ motion to compel discovery and indicated that, in the event defendants did not comply with the discovery order by a certain date, plaintiffs would be entitled to inspect defendants' records, among other things.

 

Despite the fact that defendants sent a letter to the court objecting to the proposed order as beyond the scope of the discussions held at the court conference, and beyond the remedy requested in plaintiff's motion, the trial court issued an order granting plaintiffs’ motion and adopting the language in plaintiffs’ proposed order in its entirety.

 

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

 

The Fourth Department modified the trial court’s order to require discovery responses from defendants within 30 days of entry of the appellate order, and to strike the language requiring production without regard to privilege. The Court held the trial court abused its discretion in awarding plaintiffs unfettered access to defendants’ documents inasmuch as plaintiffs did not request such relief in their motion to compel and the relief granted was dramatically different from that which was actually sought. 

 

The Court also found the trial court erred in awarding plaintiff’s attorney's fees, as there was nothing in the record to suggest that defendants, or their attorneys, willfully refused to comply with plaintiffs' discovery demand or that defendant or their attorneys acted frivolously.

 

 

Videan v NRG Energy, Inc.

April 28, 2017

Appellate Division, Fourth Department

 

Plaintiff, an employee of API, climbed scaffold that had just been modified and realized it was still too short to reach his work area. The scaffold was supplied by subcontractor Patton, and only their employees were authorized to assemble, modify or adjust the scaffolds. Plaintiff testified two of his supervisors told plaintiff to wait until further changes could be made but a third said “get up there and get it done” and plaintiff ultimately fell from the scaffold.

 

The trial court granted defendants’ motion for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims on sole proximate cause grounds, and denied plaintiff’s cross-motion for partial summary judgment on his 240(1) claim.  

 

Labor Law § 240(1) (DRA) 

 

The Fourth Department rejected defendants’ sole proximate argument, finding there were missing planks from the scaffold that plaintiff needed to use for his work, and the scaffold was too low for him to reach his work area i.e. inadequate for plaintiff’s work. Thus, the Court found issues of fact whether an adequate safety device was “readily available” as the required modification to the scaffold needed could have taken hours to be performed.

                                                                                                                          

PRACTICE POINT:  The 5 elements of a sole proximate cause are tht here must be 1) and appropriate safety device which is 2) available, the plaintiff must 3) have been instructed to use it or know he was expected to use it and 4) not use it or misuse it 5) for no good reason.  Here there is a question of fact as to whether the plaintiff was instructed to use the scaffold as it was or to wait until it was raised and if the altered scaffold was available as it would be hours until it could be atlered.

 

Labor Law § 241(6) (MAS)

 

The Fourth Department rejected plaintiff’s reliance on Industrial Code regulation 5.1(e)(1) and (5) in support of his Labor Law § 241(6) claim because defendants established they are inapplicable to the facts since those regulations deal with the size and placement of planks on a scaffold, and plaintiff conceded his accident was not the result of any issues with the planks. Rather, the scaffold itself was not high enough for his work. Thus, the regulations did not apply.

 

 

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

 

 

12 NYCRR § 23-1.8(c) – Protection in Construction, Demolition and Excavation Operations; Personal Protective Equipment; Protective Apparel; Foot Protection.

 

§ 23-1.8(c)(2) states “Every person required to work or pass in water, mud, wet concrete or in any other wet footing shall be provided with waterproof boots have safety insoles or with pullover boots or rubbers over safety shoes”.

 

Dowd v City of New York., 40 AD3d 908, 37 NYS2d 668 (2d Dept 2007);­­­

Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139, 950 NYS2d 35 (1st Dept 2012);

Griffiths v FC-Canal, LLC, 120 AD3d 1100, 992 NYS2d 718 (4th Dept 2003)

 

Dowd held reg. did not apply where trench π was working in became flooded daily with 6-7 feet of water & alleged injury occurred as he was attempting to remove piece of wood stuck in mud at the bottom of trench.

Cappabianca found reg. inapplicable where π’s foot became stuck, causing him to fall off pallet he was standing while cutting bricks b/c he testified he wore rubber-soled work boots that adequately protected him.

Griffiths held reg. could not support injury in π’s slip & fall on ice where he did not alleged a violation of this reg. either in his complaint or bill of particulars.

 

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.
424 Main Street

Suite 1300 Liberty Building
Buffalo, New York 14202

Phone:  716.849.8900
Fax:   716.855.0874
www.hurwitzfine.com

In some jurisdictions, newsletters such as this may be considered:

Attorney Advertising.

 

© 2011-2017 Hurwitz & Fine, P.C., All rights reserved.