Labor Law Pointers
Volume VI, No. 8
Wednesday, June 7, 2017
A Monthly Electronic Newsletter Addressing
New York State Labor Law
Decisions and Trends
From the Editor:
Do you have a situation, call or email us because we love situations. I regularly encourage our readers to subscribe to our sister publication, Coverage Pointers, and today is no exception. As I am sure many of you know the Court of Appeals on Tuesday decided the long-awaited Burlington decision. Dan and his coverage team immediately put out a special edition of Coverage Pointers. In his email Dan points out that the court held that the terms “arising out of” and “caused by” in additional insured endorsements indeed mean different things. “Caused by” means “proximately caused by” and not just “connected to”.
As Labor Law aficionados we are generally neck-deep in contract and policy language so Dan’s opinion of this case is, like MasterCard, priceless. I have attached a link to his special edition. http://www.hurwitzfine.com/news/coverage-pointers-volume-xviii-special-edition
I would also recommend that anyone not receiving Coverage Pointers might want to be added to that distribution list, just drop Dan a line and we will see to it that you are added.
This may also be a good time to remind our readers that all of our editions of Labor Law Pointers are available on our web site and are searchable, as is Coverage Pointers. Here is that link. http://www.hurwitzfine.com/news/category/coverage-pointers
As a reminder any text you see in this or any other edition which is blue is a hyperlink; just click on it and you will be directed to the appropriate site. If it is a name or initials, you will create an email to that person, if it is a case name, you will be directed to the actual official decision, if it is a statute or rule, to the text of that statute or rule. Please feel free to use them to contact us at any time with any question labor law or risk transfer related.
We also encourage you to share our publications with any and all that are interested, that is why we also attach a word version of each edition to the emailed edition; it makes it easier for some of you to share or cut and paste portions of the newsletter. It is always a bit funny when a portion of our analysis comes “around the horn” and back to us having been forwarded to someone who did not know it was our to start with, but it is there to share, just a mention of where it came from would be nice.
Here is our picture for the month. Here is the question, when the future plaintiff with the 3” grinder gets a piece of metal in his eye because the water jug he improvised into a face shield (because the OSHA approved face shield he was issued, told to always use and had in his truck did not make him look like an astronaut) is not strong enough, is it a labor law case and if so what defenses, if any, do we have?
My opinion is that assuming the plaintiff was in fact issued a face shield and failed to use it for no good reason what we have here is a perfect sole proximate cause defense. That means that it is a prima facie 241(6) case based on a violation of § 23-1.8(a) Personal protective equipment.
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Eye protection. Approved eye protection equipment suitable for the hazard involved shall be provided for and shall be used by all persons while employed in welding, burning or cutting operations 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.
Clearly the water cooler jug with the top cut off is not “approved eye protection” so the regulation is violated. That said we analyze the case like all sole proximate cause defense cases. Step 1, was the plaintiff provided with appropriate safety device: here he was given an appropriate face shield which would be an appropriate safety device.
Step 2, was the appropriate safety device available to the plaintiff: here it was in his truck on the site.
Step 3, was the plaintiff instructed to use the appropriate safety device or did he know he was expected to use it: here he had been instructed to use the OSHA approved face shield.
Step 4, did the plaintiff fail to use or misuse the appropriate safety device: here he completely failed to use it.
Step 5, was the failure to use or to misuse the available and appropriate safety device he was instructed to use for a good reason: here wanting to look like an astronaut, while a good reason for my son to dress up is not a valid reason not to wear the appropriate safety device.
There you have it, a funny picture and a brief recitation of the sole proximate cause defense, what a world.
Enjoy your June, summer is arriving any second and the rain will stop, I hope.
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.
Manfredonia v Gateway School of N.Y.
May 4, 2017
Appellate Division, First Department
Plaintiff fell from a ladder when its side hinge broke and the ladder collapsed. The trial court denied the motions of Gateway and Kaback (collectively defendants) for summary judgment dismissing plaintiff’s Labor Law § 240(1) claim, and denied Kaback’s motion seeking dismissal of Gateway's third-party contractual indemnity claim against it.
The First Department held that although defendants presented evidence that plaintiff, a Kaback employee, violated Kaback’s safety manual by improperly standing on the top cap of a six-foot A-frame ladder to reach his work, plaintiff also presented evidence that his fall was caused by the ladder's side hinge breaking and ladder collapsing, and not the method in which he used the device. Thus, the trial court’s denial of defendants’ motion was unanimously affirmed.
PRACTICE POINT: A plaintiff is the sole proximate cause of his or her injuries where it is shown that "[he or she] had adequate safety devices available; that he [or she] knew both that they were available and that he [or she] was expected to use them; that he [or she] chose for no good reason not to do so; and that had he [or she] not made that choice he [or she] would not have been injured"
Indemnity Issues in Labor Law (SEP)
Gateway also sought contractual indemnity from Kaback. Here, in reversing the trial court, the Appellate Division noted that the contract did not clearly evince Kaback’s agreement to provide indemnification protections. As such clauses are strictly construed, the Appellate court held that Gateway did not possess a valid claim against Kaback.
May 4, 2017
Appellate Division, First Department
Plaintiff, a brakeman, allegedly fell from the cab of a locomotive. The trial court denied plaintiffs' motion for summary judgment on his Labor Law § 240(1) claim, and granted defendants' cross motion for summary judgment dismissing the Labor Law §§ 240(1), 200 and common-law negligence claims as well as the Labor Law § 241(6) claim predicated on violations of Industrial Code (12 NYCRR) §§ 23-1.7(f) and 23-1.30.
As the plaintiff was injured when he fell from the cab of a locomotive on which he was a brakeman, his injuries arose out of the means and methods of his work, which defendants demonstrated they did not supervise or control. The Appellate Division unanimously affirmed the lower court order.
The First Department unanimously affirmed denial of both motions, finding as a matter of law that alighting from a construction vehicle does not pose an elevation-related risk calling for any of the protective devices listed in Labor Law § 240(1), relying on Bond v York Hunter Constr., 95 NY2d 883, 884-885 (2000).
PRACTICE POINT: This case is not the standard falling from a construction vehicle case, mostly we see plaintiff’s falling from the back of flatbed trucks and trailers. The courts have consistently falling off a truck is not the type of elevation related risk the labor law is intended to protect workers from. On the other hand when a plaintiff falls from a location elevated above the bed of the trailer or truck the courts have held that it is the type of risk the statute is intended to protect workers from.
Although plaintiff identified Industrial Code regulations (12 NYCRR) §§ 23-1.7(f) and 1.30, the Court held both provisions have no applicability to plaintiff’s accident and thus cannot serve as predicates for the Labor Law 241(6) claim.
Labor Law § 200 and Common-Law Negligence (VCP)
The First Department affirmed, finding that the defendants may not be held liable under Labor Law § 200 or in common-law negligence, because plaintiff's injuries arose out of the means and methods of his work, which defendants demonstrated they did not supervise or control.
Kebe v Greenpoint-Goldman Corp.
May 9, 2017
Appellate Division, First Department
Plaintiff testified that the ladder from which he fell wobbled during use and that the ladder spun and fell over. The trial court granted plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim against defendants Greenpoint, GFI, Atara, Triton.
In cases involving ladders or scaffolds that collapse or malfunction for no apparent reason, the Court of Appeals has applied “a presumption that the ladder or scaffolding device was not good enough to afford proper protection” Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 289 n 8 (2003). Here, the First Department held plaintiff established prima facie that Labor Law § 240(1) was violated through his testimony that the ladder from which he fell wobbled during its use.
The Court held defendants failed to raise a triable issue of fact whether the ladder provided proper protection in light of the testimony of a superintendent who saw the ladder standing when he arrived less than sixty minutes before plaintiff’s fall. “In the absence of any evidence that the ladder was not moved or repositioned after plaintiff’s fall, it would be speculative to infer from the superintendent’s testimony that the ladder did not fall over”.
PRACTICE POINT: Ok, the short answer is if the ladder moves, and causes the plaintiff to fall, then it is going to be a labor law case and we can move to the issues or risk transfer and damages. The way to defend that it to find all statements of the plaintiff following the accident to see if they are consistent or if they morph over time towards the ladder moving before the plaintiff fell.
May 16, 2017
Appellate Division, First Department
Plaintiff’s decedent fell off an exterior scaffold and through a third floor window opening to an elevator shaft.
The trial court granted plaintiff's motion for summary judgment as to liability on his Labor Law § 240(1) claim against the Columbia defendants/third-party plaintiffs and Bovis. The trial court also denied Columbia and Bovis’ cross-motion for summary judgment dismissing plaintiff's claims under Labor Law §§ 240(1), 241(6) and 200; denied Columbia and Bovis's cross-motion seeking summary judgment for contractual indemnification against ACT; denied Columbia and Bovis’ cross-motion seeking summary judgment for their common-law indemnification and contribution claims against ACT; denied Columbia and Bovis' cross-motion seeking summary judgment on their claims for contribution, contractual and common-law indemnification against Total Safety; and granted Total Safety's cross-motion for summary judgment dismissing all claims, cross claims, and counterclaims against it.
In a separate order, the trial court also granted ACT's cross-motion for summary judgment dismissing all claims against it, thereby effectively denying both Columbia and Bovis’ summary judgment on their contractual indemnification claim against ACT, and otherwise adhered to the prior order.
The First Department noted that it was undisputed that the scaffolding lacked a guardrail on the side adjacent to the window opening through which decedent fell, in violation of Labor Law § 240(1). Thus, decedent’s alleged failure to tie his lanyard to the scaffold is not the sole proximate cause of his fall, and the trial court correctly awarded summary judgment to plaintiff.
PRACTICE POINT: So we start with the easy part, the scaffold lacked a side rail, plaintiff fell, labor law violation. Then we consider that the plaintiff failed to tie off as directed with the appropriate harness and lanyard as directed. Alone, this would be a perfect sole proximate cause defense. In conjunction with the defect in the safety device, the missing guard rail, we now have two safety device failures, one proximately caused by the plaintiff and one proximately caused by another entity. Thus, neither can be the SOLE proximate cause. For this determination it is necessary for both safety devices to be defective or to fail.
In light of the Court’s granting plaintiff summary judgment on his Labor Law § 240(1) claim, the First Department held Columbia and Bovis’ arguments are academic.
Labor Law § 200 and Common-Law Negligence (VCP)
In light of the Court’s granting plaintiff summary judgment on his Labor Law § 240(1), the First Department held Columbia and Bovis’ arguments regarding plaintiff’s Labor Law § 200 and common-law negligence claims are academic.
Indemnity Issues in Labor Law (SEP)
Pursuant to the contract entered into by ACT, indemnity was owed so long as the incident arose from its work. Thus, Columbia and Bovis were not obligated to establish negligence on behalf of ACT to trigger the protections afforded under the contract.
The Court also ruled that Columbia/Bovis’ claims for common law indemnity/contribution did not need to be reached in light of the finding of contractual indemnity. Even if applicable, the Court summarily held that the common law indemnity claim was inapplicable.
In addition, the Appellate Division upheld the trial court’s dismissal of Total Safety. The contractual indemnity clause applicable to Total Safety required a demonstration of negligence. Here, because there was no negligence established against Total Safety, it followed that any claims for common law and/or contractual indemnity failed.
Faver v Midtown Trackage Ventures, LLC
May 23, 2017
Appellate Division, First Department
Plaintiff testified that he was hit in the arm by an electrical wire that shot out of a section of conduit pipe after being jammed inside, causing the unsecured ladder he was standing on to wobble, and plaintiff to fall. The trial court denied plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim against defendants Lexington, Warburg and Lehr.
The First Department held that plaintiff established his entitlement to summary judgment on his Labor Law § 240(1) claim with his testimony and defendants failed to raise a triable issue of fact as to whether plaintiff was the sole proximate cause of the accident.
PRACTICE POINT: Once again the ladder wobbled, causing the plaintiff to fall. The wire shooting out of the conduit is a red herring in my opinion; it was the failure of the safety device, the ladder to protect the plaintiff but moving and causing the fall and subsequent injury.
Matter of Grajko v City of New York
May 25, 2017
Appellate Division, First Department
Petitioner, a bricklayer, allegedly was injured while lifting a sixty to seventy pound bucket when he tripped and fell due to an uneven floor on a makeshift scaffold. Although he filed a workers’ comp. claim, he did not file a notice of claim over one year later after receiving shoulder and hip surgery. The trial court granted petitioner’s motion for leave to serve a late notice of claim.
The majority reversed as petitioner failed to establish any of the relevant statutory factors warranting leave to serve a late notice of claim because petitioner’s alleged failure to realize the severity of his injuries within ninety days did not constitute a reasonable excuse for his delay especially since he filed a workers’ comp. claim just weeks after the accident and there was no evidence that respondents acquired actual knowledge of the essential facts constituting the claim.
The dissent would find that petitioner’s lack of awareness of the seriousness and extent of his injuries a reasonable excuse for failing to timely serve the notice of claim as he did not learn until almost one year after his accident that his career in construction was essentially over. In addition, respondents’ insurer received notice of the claim by virtue of the workers’ comp. claim.
The dissent noted that under Matter of Newcomb v Newbury County Cent. Sch. Dist., 28 NY3d 455 (2016), the passage of time argument was expressly rejected by the Court of Appeals and petitioner met his initial burden of showing substantial prejudice through his affidavit identifying the availability of several witnesses regarding the condition of the scaffold, injuries, and photos enabling respondent to reconstruct and investigate the accident. The dissent noted that respondents could identify witnesses through attendance and payroll records as well as those persons who erected the scaffold and respondents’ own supervisors and employees.
PRACTICE POINT: Given that there are a great many construction projects carried out by municipalities it is important that we are familiar with the requirements of a notice of claim, a condition precedent to filing a law suit. Here the First Department denied the application for a late notice of claim, a rarity I must point out, as they are generally quite freely provided. This case is interesting in that with two dissents this final order goes to the Court of Appeals as a matter of right.
May 25, 2017
Appellate Division, First Department
Plaintiff was allegedly injured when a metal part of his safety harness contacted a live electrical wire (BX cable), which was hanging down from a drop ceiling of a building under renovation. The trial court granted plaintiffs’ motion for partial summary judgment on his Labor Law § 241(6) claim as against defendants 330 Madison Company, LLC and Tishman Construction Corp. (collectively defendants). The trial court also granted defendant Mazzeo’s for summary judgment dismissing defendants’ contractual and common-law indemnification and contribution claims against it, and granted the cross-motion of defendant W5 Group LLC d/b/a Waldorf Demolition (Waldorf) for summary judgment dismissing appellants' contractual indemnification claim against it.
Plaintiff relied on Industrial Code regulations 23-1.13(b)(3) and (4), which pertains to the investigation and protection of employees regarding electrical hazards. The First Department held that defendants failed to point to any evidence that plaintiff was comparatively negligent because he was acting pursuant to his foreman’s instructions and neither knew nor should have known that the cable was electrified, in the absence of any warnings, caution tape, or other such indications that workers should avoid the area. The Court also rejected defendants’ sole proximate cause argument because 241(6) is not dependent on an owner or general contractor’s capability to prevent or cure a dangerous condition.
Indemnity Issues in Labor Law (SEP)
In response to plaintiff’s motion, Waldorf cross-moved seeking to dismiss a contractual indemnity asserted against it. From the decision, it appears that Waldorf failed to timely move for summary judgment. As such, it appears to have moved, by way of cross-motion, after the court imposed cut-off date for motion practice. By calling it a cross-motion, Waldorf sought to avoid having its motion disregarded as untimely.
Unfortunately, the “cross-motion” looked for relief against a party other than the original movant. As such, it was not “nearly identical” to the issues raised in the timely motion. Because it did not qualify as a “cross-motion,” it followed that the application was converted to a basic motion and thusly rejected as late.
May 30, 2017
Appellate Division, First Department
Plaintiff was using a ladder to take measurements in preparation for work to be performed on the roof of defendant owners’ building when the ladder broke causing plaintiff to fall. The trial court granted plaintiff for summary judgment on his Labor Law § 240(1) claim, and denied defendant’s cross-motion on their common-law indemnity claim against Fiedler.
The First Department unanimously affirmed as plaintiff was engaged in a protected activity when he fell from the ladder, citing to Velasco v Green-Wood Cemetery, 8 AD3d 88, 89 (1st Dept 2004).
PRACTICE POINT: Where work has not actually started it is very important to determine exactly what the plaintiff was doing at the time of the accident. If he was engaged in estimating as opposed to preparing to start work, the argument has been successfully made that he was not engaged in a protected activity or that he was not a person “so employed” and thus not a proper plaintiff. Take a look at these cases carefully.
Indemnity Issues in Labor Law (SEP)
Although Fiedler was in the “chain of contracts” involving plaintiff and his employer, the evidence failed to show that Fiedler actively supervised, directed or controlled plaintiff’s work at the time of the incident. Accordingly, defendant failed to establish a viable claim for common law indemnity.
May 3, 2017
Appellate Division, Second Department
Plaintiff, an employee of third-party defendant CTS, was injured during renovation work at a Target store. CTS was retained by Bailiwick Data to perform the work. Plaintiff sued a Target, Bailiwick Data, and Westbury, the owner, alleging violations of the Labor Law. Those defendants commenced a third-party complaint against CTS for contractual indemnification.
The trial court dismissed all claims except plaintiff’s Labor Law § 240(1), and granted third-party plaintiffs’ summary judgment on their contractual indemnity claims. Upon reargument, the court dismissed plaintiff’s Labor Law § 240(1) claim and accordingly dismissed the contractual indemnity claims against CTS.
The trial court then granted third-party plaintiffs’ motion for renewal of their opposition to renew or argue under CPLR § 2221 their opposition and cross-motion against CTS on the grounds that dismissing the Labor Law claim would change the contractual indemnity claim.
Although CTS argued that third-party plaintiffs were precluded from seeking renewal because they did not appeal the prior decision granting CTS’s motion to reargue, the Second Department affirmed summary judgment on the indemnity claim as third-party plaintiff’s motion was “based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law would change the prior determination” and contained a “reasonable justification for the failure to present such facts on the prior motion”.
PRACTICE POINT: Motions to renew and reargue are, as we have discussed before, completely different animals. A motion to reargue is the kind way of saying to the judge that he or she was wrong in the determination they made on the evidence presented. Misapprehended the facts of the law is the polite term used. I advise making this motion very very sparingly.
The motion to renew is completely different; it is based on new facts not available when the original motion was made or a change in the law after the prior decision was made and needs to be supported by evidence as to why the facts were not previously available.
The next issue is how to appeal these. My advice is to file your notice of appeal on the original motion as should the motion to renew and/or reargue be denied, you would be left with nothing to appeal other than the determination not to grant the motion to renew or reargue, not the actual original motion.
DeFelice v Seakco Constr. Co., LLC
May 3, 2017
Appellate Division, Second Department
Plaintiff allegedly slipped on ice and fell on a driveway as he approached defendants O’Halloran and McHale’s home undergoing renovation while defendants lived out of state. The trial court dismissed plaintiff’s Labor Law § 241(6) claim but denied defendants’ motion to dismiss the Labor Law § 200 and common-law negligence claims.
Labor Law § 200 and Common-Law Negligence (VCP)
The Second Department affirmed the denial of the defendant’s summary judgment motions on Labor Law § 200 and common-law negligence. The Supreme Court properly determined that the homeowners had a duty to keep their property in a reasonably safe condition and provide workers with a safe place to work, even though they were residing out of state at the time of the accident. In addition, contrary to the homeowners' contention, the plaintiff's alleged injuries stem from a dangerous condition on the premises and not from the manner in which work was performed. Further, the court properly concluded that the homeowners failed to establish, prima facie, that they lacked constructive notice of the alleged icy condition in the driveway. The evidence submitted in support of the homeowners' motion, which included transcripts of the plaintiff's and their own deposition testimony, failed to establish when they or the company they contracted with to provide snow removal on the driveway last inspected the driveway, or what the driveway looked like on the day of the accident. Since the homeowners failed to meet their prima facie burden, the court properly denied their motion without regard to the papers submitted in opposition.
Robinson v National Grid Energy Mgt., LLC
May 10, 2017
Appellate Division, Second Department
Plaintiff slipped and fell twelve to fifteen feet while exiting an aerial bucket. The trial court granted T-Mobile and Omnipoint’s motion dismissing the Labor Law §§ 240(1) and 241(6) claims, and denied plaintiffs’ motion for summary judgment on his § 240(1) claim, finding plaintiff’s conduct in exiting the bucket was the sole proximate cause of his injuries.
The Second Department reversed as T-Mobile only demonstrated it was standard practice to exit the bucket by sitting on the edge and turning it around, and there was no evidence that plaintiff was instructed differently. However, T-Mobile established that the bucket truck from which plaintiff fell was not defective or inadequate as it related to providing him with fall protection. Thus, T-Mobile was entitled to dismissal of the Labor Law § 240(1) claim.
PRACTICE POINT: Look at the facts logically first. Here the insulating liner for the basket was in no way intended to prevent the plaintiff from falling, thus the fact it was missing did not make the bucket defective and cause the fall. If the safety device was not defective and did function as intended, then the statute is not violated as it calls for the safety device to be provided. As an appropriate safety device was and the plaintiff simply lost his balance and fell when his foot got stuck there is no statutory violation and thus no labor law case.
The Second Department held T-Mobile also established prima facie that plaintiff’s task at the time he was injured did not involve construction, demolition or excavation work and thus, Labor Law § 241(6) claim did not apply. Plaintiffs failed to raise a triable issue of fact in opposition.
May 10, 2017
Appellate Division, Second Department
Plaintiff allegedly was injured while performing work at defendant’s home when he fell fourteen feet from a balcony that had no railing onto the ground below. The trial court denied defendant’s motion to dismiss the complaint.
With respect to the homeowners’ exemption, the Second Department held “in this regard, the phrase or control is to strictly construe and, in ascertaining whether a particular homeowner’s actions amount to direction or control of a project, the relevant inquiry is the degree to which the owner supervised the method and manner of the actual work being performed by the injured employee”.
Here, defendants proof raised issues of fact whether he exercised the requisite degree of direction and control over the injury-producing work because plaintiff testified defendant personally directed the workers not to throw the debris out of a window and throw it from the balcony that lacked a railing.
PRACTICE POINT: The point I make at every Labor Law Seminar I have been asked to speak at would have prevented this law suit. When you have work done at your home, avoid liability and leave immediately. Here the defendant controlled the means and methods of the work by directing HOW the work was to be done. Scheduling is ok, inspecting the work once completed is fine, but please do not tell them how to do their work, unless you enjoy being a labor law defendant.
Labor Law § 200 and Common-Law Negligence (VCP)
The Second Department affirmed, holding that the Supreme Court properly denied defendant's motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims. Where, as here, an accident is alleged to involve defects in both the premises and the equipment used at the work site, the property owner moving for summary judgment with respect to causes of action alleging a violation of Labor Law § 200 is obligated to address the proof applicable to both liability standards. Here, the defendant failed to establish that he did not have actual or constructive notice of the alleged dangerous condition which caused the plaintiff's injury and that he did not have the authority to supervise or control the means and methods of the plaintiff's work. Accordingly, the Supreme Court properly denied those branches of the defendant's motion which were for summary judgment dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence without regard to the sufficiency of the plaintiff's opposition papers.
May 24, 2017
Appellate Division, Second Department
Plaintiff allegedly was injured when a sheet of plywood fell and struck him as he was standing on the ground. He was cutting sheets of plywood before handing them to a coworker to tie the sheets to ropes to be hoisted up to the roof. The trial court granted plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim, and denied defendant’s cross-motion to dismiss the complaint.
The Second Department affirmed as defendant failed to provide an adequate safety device to protect him and that this failure was a proximate cause of his injuries regardless of the fact that the sheet of plywood was being hoisted, because it was not properly secured while it was being pulled up the roof or whether it fell from the hands of the plaintiff’s coworkers on the roof as it was being installed or about to be installed due to a failure to secure it since either situation implicates the statute.
Defendant failed to raise a triable issue of fact whether plaintiff's own conduct was the sole proximate cause of his accident and offered nothing more than speculation.
PRACTICE POINT: No question that a falling object is the basis for a 240(1) claim. No longer does the item need to be in the process of being hoisted or secured, it just needs to be an item which should be secured. The sole proximate cause defense attempted here fails for a simple reason; there was more than one person involved. Where there are multiple individuals involved, including the plaintiff, none of them, again including the plaintiff, can be the sole proximate cause of the injury producing fall or drop.
May 31, 2017
Appellate Division, Second Department
Plaintiff allegedly was injured when he fell from a ladder while installing sheetrock at Vingsan’s property and leased by JP Morgan. JP Morgan retained plaintiff’s employer, Target, to perform the work. Plaintiff testified he set up a Target-owned A-frame ladder in the area where he was to perform his work, and he inspected the ladder, it was in working condition, and there was nothing on the floor underneath him. He was climbing the ladder while holding the sheetrock with both hands when the ladder shifted and he fell for no apparent reason.
The trial court denied plaintiff’s cross-motion for summary judgment on his Labor Law § 240(1) claim and JP Morgan’s motion to dismiss the complaint for failing to attach the pleadings. The trial court also denied Vingsan’s motion to dismiss the complaint that was supported by an unsworn affidavit. Upon reargument, the trial court acknowledged it erred in deciding all three motions and as relevant here granted plaintiff’s Labor Law § 240(1) claim and denied JP Morgan’s cross-motion to dismiss that claim.
The Second Department held plaintiff made a prima facie showing of their entitlement to judgment as a matter of law in light of his testimony. In opposition, the Court held JP Morgan failed to raise a triable issue of fact as to whether plaintiff’s actions were the sole proximate cause of his injuries.
PRACTICE POINT: I am completely aware that we have discussed this point several times in this issue but here we go again. When the ladder shifts, causing the plaintiff to fall, it is not an appropriate safety device and the plaintiff will be awarded Summary Judgment. Simple really.
May 31, 2017
Appellate Division, Second Department
Plaintiff was working on a project to construct a condo and allegedly slipped and fell on unsecured rosin paper placed on a three-step interior pool staircase. He testified he worked solely under the direction of his employer’s foreman and no one else. The trial court granted defendants’ motion for summary judgment dismissing the complaint alleging violations of Labor Law §§ 240, 241(6), 200 and common-law negligence.
The Second Department held defendants were entitled to summary judgment as plaintiff’s injuries were not the direct consequence of the application of the force of gravity to an object or person and thus did not involve Labor Law § 240(1).
PRACTICE POINT: Plaintiff fell on what is for all intents and purposes, a permanent staircase and thus it is not a labor law case from that point. In addition the plaintiff’s fall appears to have been all at the same level and thus gravity was not involved in any more meaningful way than had the plaintiff fallen on level ground.
The Second Department held plaintiff was also entitled to dismissal of the Labor Law § 241(6) claim predicate upon regulation 1.7(d) by establishing that protective rosin paper upon which plaintiff slipped was an integral part of the tile work. Thus, the rosin paper did not constitute a “foreign substance” under the regulation.
Labor Law § 200 and Common-Law Negligence (VCP)
The Second Department affirmed, holding that the defendants established their prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 200 and common-law negligence claims by submitting the transcript of the plaintiff's deposition testimony which demonstrated that they lacked the authority to supervise or control the injury-producing work. The plaintiff testified at his deposition that he worked solely under the direction of his employer's foreman and was not supervised by anyone else. In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff's contentions, the relevant contracts did not provide the defendants with the authority to supervise and control the tile work that allegedly caused the plaintiff's injuries.
Griffin v AVA Realty Ithaca, LLC
May 11, 2017
Appellate Division, Third Department
Plaintiff and his coworker Gerrard were constructing a masonry elevator with a coworker when the scaffolding he was working on collapsed and he fell more than forty feet. The trial court denied plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim as there are issues of fact whether plaintiff was the sole proximate cause of his accident and that the doctrine of collateral estoppel did not apply.
The Third Department held plaintiff was engaged to complete masonry work at the construction site and was injured as the result of a fall from an elevated work site, this matter is squarely within the purview of Labor Law § 240(1). The duty to provide a safe working environment is non-delegable, and a contractor or owner and its agents may be liable even though it exercised no control over, or supervision of, an independent contractor who performed the job.
PRACTICE POINT: First the issue of Collateral Estoppel does not apply where the parties are not identical and thus had the opportunity to argue their point. The outcome may well be the same in the end, but there is the opportunity for all to have their argument heard. Second, the labor law protects all workers on the site and so employed, be they an employee, an independent contractor or a business owner. Third, a party with the authority to supervise direct or control the plaintiff is a valid 240(1) defendant, regardless of whether they actually exercised that authority and the owner is always a valid defendant.
Piche v Synergy Tooling Sys., Inc.
May 5, 2017
Appellate Division, Fourth Department
Plaintiff allegedly fell while wearing stilts in order to install ceiling tile. He stepped on a flexible electrical wire conduit that was on the floor while wearing stilts in order to install ceiling tile and fell as a result. He explained in his deposition and in his affidavit that his work was obstructed by electrical wiring and conduit in the ceiling that had not been properly secured, thereby leaving limited space in which to install the tile. With his arms fully extended overhead while attempting to move and secure the electrical wiring and conduit, he lost his balance and was forced to step backwards, at which point his right stilt came into contact with the conduit and he fell.
The trial court granted third-party plaintiff Synergy motion to dismiss the Labor Law § 240(1) claim and denied plaintiff's cross-motion for partial summary judgment on that claim.
The Fourth Department reversed, finding plaintiff raised an issue of fact whether his injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant height differential while he was attempting to secure the electrical wiring and conduit in the ceiling in order to install the ceiling tile, and were not solely caused by the presence of the conduit on the floor. The addition of the overhead impediment, in the Court’s reasoning, differentiated this case from prior cases where tripping over objects on the ground while using stilts was not found to be a §240(1) violation.
PRACTICE POINT: This decision is based on a plaintiff who “clarified his deposition testimony” to bring the case out of what was otherwise and Summary Judgment victory for the defense. The point to remember here is to nail down the plaintiff so that he can’t squirm out by “clarifying” his testimony and tailoring it specifically to defeat your motion.
LABOR LAW § 241(6) REGULATIONS; SPECIFIC OR GENERAL (MAS)
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12 NYCRR § 23-1.8(c) – Protection in Construction, Demolition and Excavation Operations; Personal Protective Equipment; Protective Apparel; Waterproof clothing. |
§ 23-1.8(c)(3), requires that every employee required to work in rain, snow or similar wetting conditions shall be provided with a waterproof coat, pants and an approved hat. |
No cases have held one way or the other whether 1.8(c)(3) is sufficiently specific or not, and under what circumstances said regulation is applicable or not. |
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