Labor Law Pointers
Volume VI, No. 9
Wednesday, July 5, 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.
We also love great photos of workers doing things which appear to be from the Darwin Awards. Below we have 3 such photos and my question this month is which of the photos is the best example of an actual labor law claim, why, and what defenses are available in each.
I will start with the picture on the left. I pick these pictures to make a specific point. Ok, I only do that sometimes, mostly they are just funny. The key element here is that in all 4 departments there is case law which makes clear that a person is not and cannot be a safety device. Thus, the plaintiff clearly does not have an appropriate safety device; he is working at height and appears to be engaged in a protected activity. As to the sole proximate cause defense as he is just one of 4 men involved in this fiasco his decisions cannot be the SOLE proximate cause of the inevitable fall and thus that defense will fail. This is one where the trial will likely be solely about the issue of damages.
In the middle picture it appears that the soon to be plaintiff is changing a light bulb. He clearly does not have an appropriate safety device so when he falls it looks good for him, right? No, wrong. If changing a light bulb he is not engaged in a protected activity. A light bulb burns out, it then needs to be changed, thus the replacement of light bulbs if maintenance, not repair and thus not a labor law case under either 240(1) or 241(6).
In the last picture, taken on what is being now referred to by his family as law suit eve, the once and future plaintiff is simply stupid, brave, but stupid. I sometimes take the images and do a Google search on the image and this one is the best ever. The title of the collection of photos was “Another reason men don’t live as long as women”. This one looks like the work is being done on a single family home and as long as the owner live there and does not rent it out he likely has the single family homeowner exemption if he did not supervise, direct or control the work.
Here in Buffalo the weather has turned and we have started to experience summer. Hope everyone had a great Fourth of July. Remember that we are only ever an email or phone call away if you have any question Labor Law or risk transfer related, we are ready willing and able to assist an any “situation” you may encounter, the more twisted the better.
I was cleaning the gutters at our cottage when several friendsarived, all involved in insurance and with a very good understanding of not only the labor law but what I do for a living and they just stood there laughing. Apparently the concept of me, on the top ladder covered in the composted leaves that had inhabited my gutter for far too long, looking like I would meet my maker shortly after falling from the ladder was too much for them to handle. I would like to point out that 1) it was in Canada and thus not labor law so I would not dare fall and 2) I have cat like reflexes and would land on my feet without injury.
Have a great July, see you next month.
David
David R. Adams
Hurwitz & Fine, P.C.
424 Main Street
Suite 1300 Liberty Building
Buffalo, New York 14202
Phone: 716.849.8900
Direct: 716.849.8916
Fax: 716.855.0874
Cell: 716.553.6901
Email: [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.
Burlington Ins. Co. v NYC Tr. Auth.
June 6, 2017
Court of Appeals
New York City Transit Authority (NYCTA) contracted with Breaking Solutions, Inc. (BSI) to provide equipment and personnel and for BSI to perform tunnel excavation work on a New York City subway construction project. To comply with NYCTA's insurance requirements, BSI purchased insurance from Burlington with an endorsement that listed NYCTA, New York City Transit (MTA), and New York City (City) as “additional insureds”. As specified by NYCTA, BSI agreed to use language in the endorsement adopted from the latest ISO form, and which provides that NYCTA, MTA, and the City are additional insureds:
“. . . only with respect to liability for 'bodily injury', 'property damage' or 'personal and advertising injury' caused, in whole or in part, by:
1. Your acts or omissions; or
2. The acts or omissions of those acting on your behalf.”
During the covered period, an NYCTA employee fell off an elevated platform as he tried to avoid an explosion after a BSI machine touched a live electrical cable buried in concrete at the excavation site. The employee brought an action against the City and BSI asserting among other things, Labor Law claims.
The City impleaded NYCTA and MTA in the employee's action and asserted third party claims for indemnification and contribution, based on a lease between NYCTA and the City as a property owner of certain transit facilities. Under that lease agreement, NYCTA agreed to indemnify the City for liability "arising out of or in connection with the operation, management[,] and control by the [NYCTA]" of the leased property.
NYCTA tendered its defense of these claims to Burlington, also as an additional insured under the BSI policy. Burlington accepted the defense, subject to the reservation that NYCTA qualify as an additional insured under the policy endorsement. NYCTA did not demand, and Burlington did not submit, a withdrawal of this reservation.
Discovery in the employee’s federal lawsuit revealed that NYCTA failed to identify, mark, or protect the electric cable, and that it also failed to turn off the cable power. Documents further established that BSI’s machine operator could not have known about the location of the cable or the fact that it was electrified. In two internal memoranda, NYCTA acknowledged its sole responsibility for the accident. Based on these revelations, Burlington disclaimed coverage of NYCTA and MTA, asserting that BSI was not at fault for the injuries and therefore NYCTA and MTA were not additional insureds under the policy.
The district court dismissed the employee's claims against BSI with prejudice, and the City's third-party claims against NYCTA without prejudice. Burlington thereafter settled the lawsuit for $950,000 and paid the City's defense costs.
Burlington commenced the underlying action in state court after disclaiming coverage for NYCTA and MTA. Initially, Burlington sought a declaratory judgment that it did not owe NYCTA and MTA coverage as additional insureds under BSI's policy. After settling the employee's action against the City, Burlington moved to amend its complaint to add a claim for contractual indemnification as the City's subrogee under the lease with NYCTA.
Supreme Court granted Burlington's motion for summary judgment, concluding that NYCTA and MTA were not additional insureds because the policy limited liability to instances where BSI, as the named insured, was negligent. The court also granted Burlington's motion to amend the complaint, finding that the anti-subrogation rule did not bar Burlington's claim as the City's subrogee. Burlington then moved for partial summary judgment on its contractual indemnification claim against NYCTA, which the court granted and subsequently entered judgment for Burlington for the $950,000 settlement amount, along with prejudgment interest, fees, and costs.
The Appellate Division reversed, denying plaintiff's motions for summary judgment and to amend the complaint, and granting defendants’ cross-motion for summary judgment on the first cause of action to the extent of declaring defendants were entitled to coverage as additional insureds under Burlington’s policy. The court concluded BSI, the named insured, was not negligent, but “the act of triggering the explosion . . . was a cause of [the employee's] injury” within the meaning of the policy. The court determined that as a consequence, it “necessarily follows that the anti-subrogation rule bars Burlington from recovering, as the City's subrogee”.
PRACTICE POINT:
Indemnity Issues in Labor Law (SEP)
In many ways, the court is simply aligning the liability analysis with the coverage analysis in most circumstances. The elements comprising a cause of action founded on negligence are: 1) a duty owed by defendant to plaintiff, 2) a breach of that duty by defendant, 3) a reasonably close causal connection between the conduct constituting a breach of duty and the resulting injury, more commonly known as “proximate cause”, and 4) actual loss or damage. W. Page Keeton, et al., Prosser & Keeton on the Law of Torts § 30 at 164–65 (5th ed. 1984); Livingston v. Gribetz, 549 F.Supp. 238, 242 (S.D.N.Y.1982).
Such a standard, however, leaves open the question as to how much deference should the court in the declaratory judgment action give to the findings of the trial court in the underlying matter who similarly seek to resolve the question of proximate cause. A carrier is not collaterally estopped by the findings of the underlying action where it defended, and where it was not a party to same. See Linette v. Hanover Ins. Co., 29 A.D.3d 338 (1st Dep’t 2006). But now, where the analysis in many situations is the same, should that decision be binding? Does it make sense that the question of proximate cause be resolved in the underlying action as opposed to the declaratory judgment matter? Moreover, what happens where the issue of proximate cause is never addressed in the underlying action? The Court of Appeals highlights in its decision that it is the “liability,” a phrase the endorsement uses, in the underlying action that triggers the coverage.
This decision also raises the question as to the timing of declaratory judgment actions. If the finding of liability in the underlying action triggers the coverage, in some cases, it may disincentivize preemptive declaratory judgments actions in favor of the parties waiting until the underlying action is resolved to determine coverage
Moreover, the Court of Appeals decision raises the question as to what impact this decision has on the duty to defend. With regard to an employer’s insurance carrier, it does beg the question of whether, absent an explicit allegation in the complaint that the plaintiff’s own employer was negligent, how the duty to defend a putative additional insured can be triggered. This is a marked difference from the Court of Appeals decision in Regal, 15 N.Y.3d 34, which supports the proposition that a named insured’s status as the employer alone is sufficient to trigger coverage based upon “arising out of ongoing operations” language.
Ultimately, the biggest take away from this decision is that it is now, even more than ever, so important when considering tenders that the specific additional insured endorsement at issue be reviewed, and an independent analysis made based on the specific language of the relevant endorsement.
Varona v Brooks Shopping Ctrs. LLC
June 6, 2017
Appellate Division, First Department
While working on a scaffold, plaintiff suffered a seizure and collapsed; he did not fall off the scaffold, and he submitted no evidence that his injuries were the "direct consequence" of a failure to provide adequate protection against an elevation-related risk.
The Supreme Court, granted defendants Brooks Shopping Centers LLC's and the Whiting-Turner Contracting Company's motions for summary judgment dismissing the complaint as against them, and denied plaintiff's motion for summary judgment as to liability on the Labor Law § 240(1) cause of action.
Plaintiff failed to establish his entitlement to application of the Noseworthy doctrine (where the management and control of the thing which has produced the injury is exclusively vested the defendant, it is within his power to produce evidence of the actual cause that produced the accident, which the plaintiff is unable to present) because he did not demonstrate by clear and convincing evidence that he suffered amnesia and that there was a causal relationship between defendants' alleged fault and his alleged amnesia.
While plaintiff was working at an elevated level, his injuries did not occur as the result of a risk posed by the elevation because there was no evidence he fell off the scaffolding, and his own testimony that he had been walking on the scaffold before he lost consciousness. It is not reasonable to infer from the testimony of a coworker who did not directly witness the accident that he fell from the top of the wall onto the scaffold.
The Appellate Division unanimously affirmed the Supreme Court order.
PRACTICE POINT: Ah, the Noseworthy doctrine. Applicable when the plaintiff, as a direct result if the accident, is not able to recall portions or the entirety accident and thus gets the bar lowered, and the jury is “permitted greater latitude in inferring negligence on the part of defendant”. Here the key point to remember is that even without the plaintiff being able to testify as to where he fell from, if anywhere, the lowered burden of the Noseworthy doctrine still does not make it more likely than not that plaintiff fell from one height to another, and falling to the same level you are on is not a labor law case.
Gjeka v Iron Horse Transp., Inc.
June 8, 2017
Appellate Division, First Department
Plaintiff was directing traffic around an unguarded trench in the road measuring approximately five to eight feet deep, which was being excavated to allow new sewer lines to be installed for a building owned by defendant 108-110 East 116th Street LLC (LLC), when a truck owned by defendant Iron Horse Transport, Inc. and driven by defendant Michael Busch, traveling about 25 or 30 miles per hour, struck plaintiff, causing him to fall into the trench. Plaintiff brought suit against defendants asserting §§ 240(1), 241(6), 200, and common law negligence claims.
Supreme Court, entered an order granting plaintiffs' cross motion for partial summary judgment on the issue of liability on the Labor Law §§ 240(1) and 241(6) claims as against defendant LLC and for leave to amend the bill of particulars to allege violations of Industrial Code 12 NYCRR §§ 23-1.7(b)(1) and 23-4.2(h). The trial court also denied LLC's motion for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims, and granted LLC's motion for summary judgment dismissing the Labor Law § 200, common-law negligence, and common-law indemnification claims as against it.
The Appellate division unanimously affirmed the trial court’s order.
Plaintiff made a prima facie showing of entitlement to judgment as a matter of law on the Labor Law § 240(1) claim, by submitting his and other witnesses' testimony that he was directing traffic around an unguarded trench which established that his work exposed him to an extraordinary gravity-related risk, and that the absence of any safety device such as a barrier or safety railing around the trench was a violation of Labor Law § 240(1) The testimony and plaintiff's expert affidavits further showed that a barrier would not have impeded the work of excavating dirt from the pit. LLC's argument that the collision was unforeseeable was not enough to raise a triable issue of fact.
PRACTICE POINT: An interesting issue to me will be the damages portion of the case. While the courts have found that being hit by a truck traveling at 25 to 30 MPH and thrown into a ditch is a 240 case, the injuries caused by the impact with the truck should not be considered related to the elevation related risk and thus not held against the owner or contractor. Another interesting issue here is that the court held that a barrier which would have prevented the plaintiff from falling into the ditch would not have prevented the excavation of the ditch. That is critical because recalling back 6 years to the Salazar case where the plaintiff stepped into a trench in a basement which was in the process of being filled the Court of Appeals held that it was not a 240(1) case where the work being done would be impeded if the trench had been covered to prevent the plaintiff from stepping into it and thus it was not a 240(1) case.
The Appellate Division found that the trial court properly exercised its discretion in granting plaintiffs' motion for leave to amend their bill of particulars, to allege violations of Industrial Code §§ 23-1.7(b)(1) and 23-4.2(h) in support of the Labor Law § 241(6) claim, since an amendment to allege a specific section of the Industrial Code is appropriately permitted in the absence of unfair surprise or prejudice, even where a note of issue has been filed. Plaintiffs' failure to present any reasonable justification for the timing of their amendment does not warrant reversing the court's exercise of discretion, in light of the rule that leave to amend shall be freely given and defendants' failure to show any prejudice.
Labor Law § 241(6) imposes on owners a nondelegable duty to comply with specific safety regulations. Industrial Code § 23-1.7(b)(1) requires that "hazardous opening[s] into which a person may step or fall" must "be guarded by a substantial cover . . . or by a safety railing." Industrial Code § 23-4.2(h) requires that "[a]ny open excavation adjacent to a . . . street, . . . or other area lawfully frequented by any person shall be effectively guarded." Both are plainly applicable to this case. LLC failed to meet its burden to show that there was no violation of these two Industrial Code provisions, or that any such violation did not proximately cause plaintiff's injuries. The trial court’s denial of LLC’s Motion for Judgment on this issue was affirmed.
Labor Law § 200 and Common-Law Negligence (VCP)
The First Department held that the trial court properly dismissed the Labor Law § 200 and common-law negligence claims as against LLC, since the evidence showed that LLC's representative merely oversaw the progress and safety of the work performed in the nearby building involved with this construction project, and did not supervise the safety of the work being performed in the road. Moreover, the general oversight LLC exercised inside the building, even if applicable to the roadway work, did not rise to the level of supervisory control.
Indemnity Issues in Labor Law (SEP)
As indemnity obligations often track the Labor Law 200 analysis, the fact that the court dismissed Section 200 claims against LLC was likewise dispositive of the common law indemnity claims.
June 8, 2017
Appellate Division, First Department
Plaintiff was struck by an unsecured plank from a scaffold as it was being moved. Plaintiff's employer's asserted that all his workers, including plaintiff, knew that a scaffold must be dismantled before being moved.
The Supreme Court denied defendants’ motion for summary judgment dismissing the Labor Law § 240(1) claim, and granted plaintiff's motion for summary judgment on the Labor Law § 240(1) claim.
The court ruled that even if the scaffolding was adequate protection for doing the actual work, the falling plank constituted an elevation related hazard that required securing the plank. Defendant’s argument that plaintiff knew that the scaffold should be dismantled before moving was not supported by the evidence. There was no evidence that plaintiff had actually been instructed to dismantle the scaffold to move it, and therefore defendant could not support that prong of the requirement and raise an issue of triable fact that plaintiff was the sole proximate cause of his injury.
PRACTICE POINT: Every month, without fail, I have a case which allows me to once again go over the necessary elements of a sole proximate cause defense.
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There must be an available safety device to the plaintiff.
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That safety device must be appropriate third party protect the plaintiff from the risk.
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The plaintiff must have been instructed to use that safety device or must know he was required to use that safety device.
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The plaintiff must fail to use that safety device or misuse that safety device.
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The misuse or failure to use the safety device must be for no good reason.
I really should copy and save that, would save me time every month.
Cohen Bros. Realty Corp. v RLI Ins. Co.
June 13, 2017
Appellate Division, First Department
Plaintiff is the managing agent of a commercial office building located at 622 Third Avenue. Defendant RLI is plaintiff's primary commercial general liability (CGL) insurance carrier.
On October 3, 2008, nonparty engineer David Vasquez fell and fatally hit his head. On the date of the accident, plaintiff contacted its insurance broker for the CGL policy. Plaintiff was advised by the broker that the accident was a work-related fatality, and thus, a workers' compensation matter. Plaintiff was assured that the CGL policy was inapplicable and that "nothing further needs to be done." (The CGL policy expressly excluded from coverage "[a]ny obligation of the insured under a workers' compensation, disability benefits or unemployment compensation law or any similar law," as well as bodily injury to "[a]n employee of the insured arising out of and in the course of: (a) [e]mployment by the insured; or (b) [p]erforming duties related to the conduct of the insured's business.") Neither the broker nor plaintiff notified RLI of the incident.
Plaintiff promptly notified its workers' compensation carrier, the State Insurance Fund (SIF). SIF agreed to defend and indemnify plaintiff, but limited its contribution to defense costs to $150/hour. On March 6, 2009, the decedent's administratrix obtained an order to show cause to conduct discovery for the purposes of "framing a complaint" against plaintiff sounding in negligence and violations of the Labor Law. Plaintiff gave notice to RLI. By letter dated April 1, 2009, RLI denied coverage on grounds of late notice and Vasquez's status as an "employee" at the time of the accident.
In May 2009, the decedent's administratrix commenced an action against plaintiff. SIF defended plaintiff in the underlying lawsuit, and paid workers' compensation benefits to Vasquez's estate. Plaintiff chose to retain its own counsel instead of SIF's law firm. SIF contributed $150 per hour toward payment of counsel's rate, with plaintiff paying the difference.
The underlying litigation was settled for $2.5 million. Plaintiff paid $1 million; its excess insurer paid the remaining $1.5 million. Plaintiff commenced this declaratory judgment insurance coverage action against its broker and RLI on or about July 26, 2011.
Indemnity Issues in Labor Law (SEP)
The court found that the delay in notifying RLI was due to a reasonable and good faith belief that this was only a workers compensation claim. As result, RLI’s coverage was triggered.
RLI then argued that the voluntary payment doctrine would preclude recovery of the amounts paid to Greenberg Traurig who charged at a rate of $795/hour. The court held that since RLI denied coverage, it lost its right to complain about the handling of the defense and the negotiation of the fees. As such, the Court ruled that SIF’s $150 contribution is not a ceiling on fees.
June 15, 2017
Appellate Division, First Department
Plaintiff brought Labor Law §§ 200 and 241(6) and common-law negligence claims, claiming injuries resulting from the bursting of a hose pouring liquid cement, and is claim that defendants failed to provide him with adequate eye protection. Plaintiff claimed his 241(6) claim was predicated on Industrial Code §§ 23-1.10(b)(2) and 23-4.2(k).
The trial court denied defendants’ motion for summary judgment on the §§ 241(6), 200 and common law negligence claims.
The Appellate Division unanimously reversed, dismissing all claims against defendants.
12 NYCRR 23-4.2(k) is insufficiently specific to support a Labor Law § 241(6) claim, and 12 NYCRR 23-1.10(b)(2), involving the use of hand tools, is inapplicable to the facts of this case. The Appellate Division found that the motion court correctly sustained the Labor Law § 241(6) claim predicated on 12 NYCRR 23-1.8(a) and (c)(4), because plaintiff's evidence, including his deposition testimony, raises a question of fact as to whether plaintiff was provided with and used proper eye protection.
Labor Law § 200 and Common-Law Negligence (VCP)
The First Department reversed, holding that motion court erred in denying defendants' motion as to the Labor Law § 200 and common-law negligence claims, because the construction accident (the bursting of a hose pouring liquid cement) arose out of the means and methods of plaintiff's work, and there was no evidence that defendants actually controlled or exercised supervisory authority over how plaintiff performed that. At most, defendants had general authority over work site safety, which is insufficient to hold them liable for plaintiff's injuries.
June 7, 2017
Appellate Division, Second Department
The plaintiff fell from a ladder and was injured while attempting to perform some roofing repairs on a two-family residence owned by the defendant. The defendant lived on the first floor of the home with her son, and rented out the upper floor of the home to tenants. The plaintiff brought suit pursuant to Labor Law § 240(1) to recover damages for his injuries, and the defendant subsequently cross-moved for summary judgment dismissing the complaint on the basis of the statute's homeowner exemption.
The trial court granted defendant’s cross motion for summary judgment dismissing Plaintiff’s §240(1) claim.
The homeowner exemption to liability under Labor Law § 240(1) is available to owners of one- and two-family dwellings who contract for the performance of work on the premises, but who do not direct or control the work . Here, where the property is used for both residential and commercial purposes, the courts employ a flexible site and purpose test to determine whether the work contracted for directly relates to the residential use of the building so as to warrant application of the exemption.
Here, the defendant demonstrated her prima facie entitlement to judgment as a matter of law by submitting property records and the plaintiff's own deposition testimony, which established that the home was a two-family residence, that the work being performed was directly related to its residential use, and that she did not direct or control that work.
The plaintiff failed to raise a triable issue of fact in opposition to the cross motion. The plaintiff's assertion that the presence of tenants on the premises converted it to a three-family residence was not persuasive. Similarly, the mere fact that the defendant provided the ladder from which the plaintiff fell is inadequate to deprive her of the exemption.
The Appellate Division unanimously affirmed the trial court dismissing the § 240(1) claim.
PRACTICE POINT: The most interesting aspect of this case is that the defendant provided the ladder from which the plaintiff fell and the defendant was granted Summary Judgment. This is appropriate as long as two things occur, first the ladder needs to be without defect and second the defendant must simply supply the ladder and not provide any instruction that could be considered supervision, direction of control. That said I continue to recommend that owners of 1 and 2 family homes not load ladders (or any tools for that matter) to anyone working on the property and in fact consider it a great tie to go on vacation and leave.
Sledge v S.M.S. Gen. Contrs., Inc.
June 7, 2017
Appellate Division, Second Department
The plaintiff was an employee of RBJ Construction, the general contractor on a project involving the construction of an approximately 12,000 square-foot house. The plaintiff fell from a ladder on the second floor and landed on the first floor. The plaintiff alleged that an employee of the defendants who were hired to install sheet rock pursuant to a subcontract with RBJ, pulled some electrical extension cords that got tangled with the ladder, causing him to fall from the ladder.
The Supreme determined that the defendants were entitled to summary judgment dismissing the Labor Law § 200 and common-law negligence claims against defendants. The defendants established, prima facie, that they did not have authority to supervise or control the plaintiff's work or the area of the work site where the plaintiff was injured.
Labor Law § 200 and Common-Law Negligence (VCP)
The Second Department affirmed the trial court’s order dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence. The defendants established, prima facie, that they did not have authority to supervise or control the plaintiff's work or the area of the work site where the plaintiff was injured. The defendants also demonstrated, prima facie, that they did not create the dangerous condition that allegedly caused the plaintiff's injury. Here, the defendants demonstrated, prima facie, that their employees did not pull on the extension cords that got tangled with the ladder and caused the plaintiff to fall, as he alleged, and the plaintiff failed to raise a triable issue of fact in opposition.
LaLima v Consolidated Edison Co. of N.Y., Inc.
June 14, 2017
Appellate Division, Second Department
The plaintiff's husband, an employee of the third-party defendant, Verizon New York, Inc. (hereinafter Verizon), was killed when, while working from the bucket of an aerial lift truck, he made contact with a high voltage power line owned by the defendant Consolidated Edison Company of New York, Inc. Shortly after the accident, the plaintiff's attorney advised Verizon of her intent to pursue litigation. In the context of a pre-action proceeding in aid of discovery, Verizon agreed to secure and preserve the truck.
The plaintiff commenced this action against Consolidated Edison Company of New York, Inc., Lewis Tree Service, and the City of New York. Lewis Tree Service commenced a third-party action against Verizon. After Verizon notified the plaintiff that the truck had been vandalized while stored on its lot, the plaintiff retained an expert for the purpose of inspecting the truck. The expert reported that, amongst some other minor damage to the truck, a dead-man's switch which controlled the operation of the aerial lift bucket had been removed. The plaintiff then moved for leave to amend the complaint to add Verizon as a direct defendant in the action, and to assert causes of action against it for negligence, Labor Law violations, intentional spoliation of evidence, impairment of the right to sue, fraudulent concealment, civil contempt, and wrongful death, arguing that, even though Verizon was the decedent's employer, Verizon's spoliation in failing to properly preserve the truck in the same condition as it was at the time of the accident was so prejudicial that she should be permitted to pursue these claims against Verizon directly.
The Supreme Court denied those branches of her motion.
In the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit. The subject branches of the plaintiff's motion were properly denied because the proposed amendments were patently devoid of merit. New York does not recognize spoliation of evidence as an independent tort, and the impairment of the right to sue claim was a mere restatement of the spoliation claim with a different name. The proposed fraudulent concealment cause of action was found to be devoid of merit because the general allegation that Verizon did not intend to honor its obligation to preserve the truck alleged a mere misrepresentation of the intention to perform its obligation under the stipulation, which was insufficient to allege fraud.
Workers' Compensation benefits are the exclusive remedy of an employee against his or her employer for injuries or death which occurs in the course of employment. To the extent that the proposed amended complaint purports to assert causes of action against Verizon for negligence, Labor Law violations, and wrongful death, those causes of action are barred by the Workers' Compensation Law.
PRACTICE POINT: Even where there is a grave injury, and death is a grave injury, it only allows a third party claim against the employer. At no time may a plaintiff sue his employer directly as long as the employer has Workers Compensation insurance for the plaintiff. Where Comp is available it is the sole remedy of the plaintiff, the ability to bring a common law negligence claim against the employer is solely for the defendants. If the employer does not have comp for the plaintiff however he does have a statutory right to bring a direct action against the employer.
Barone v 1116 Ave. H Realty, LLC
June 21, 2017
Appellate Division, Second Department
Plaintiff, a field technician employed by Verizon, was assigned to remove old cable from the exterior walls of the subject property, a four-story building containing 27 apartments and owned by the defendant. Verizon provided all of the tools and equipment needed to perform the assigned task. Plaintiff was in the process of removing the cable while standing on the second rung from the top of an extension ladder when the ladder started to shake and lean to the left, causing him to fall and sustain injuries.
The defendant appealed the Supreme Court’s denial of its motion for summary judgment dismissing the § 240(1) claim.
Defendant advanced two arguments, first, that the plaintiff was not protected by Labor Law § 240(1) since he was performing work at the subject property without its knowledge or consent. The defendant failed to eliminate all triable issues of fact as to why the plaintiff, a Verizon employee, was performing work on its property and whether a nexus existed between it and the plaintiff.
The second argument was that plaintiff was not engaged in an activity covered by Labor Law § 240(1). It failed to offer any evidence that the plaintiff was performing merely routine maintenance as opposed to a repair or any other of the acts enumerated in Labor Law § 240(1).
The Appellate Division unanimously affirmed the lower court’s denial of Defendant’s motion.
PRACTICE POINT: Interestingly this case seems to break ranks from some prior cases where cable installers were not permitted to sue the property owner for falls sustained while installing cable for tenants. The difference is that in the prior cases the property owners did not have any knowledge that cable was being installed, it was not being done for their benefit and there was a specific regulation which mandated that utility companies be granted asses to install lines on that type of property. He proof was not provided to the court of the work was not within the knowledge of the owner or for their benefit. Additionally the regulation providing the authority for the installation to be done without the owners knowledge was only argued on the reply brief.
June 21, 2017
Appellate Division, Second Department
The plaintiff was injured while working on premises owned by the defendants. The plaintiff testified at his deposition that he was cutting a piece of plywood using a handheld electric grinder which lacked a protective guard, and that he complained to his supervisor about the lack of a protective guard but was instructed to continue using the grinder. The grinder became stuck in the plywood, and as the plaintiff tried to dislodge it, it suddenly came free and struck his arm and leg, causing injury.
The Supreme Court denied defendants’ Motion for Summary Judgment dismissing the 241(6) claim and granted plaintiff’s motion to amend his Bill of Particulars to add an allegation of a violation of 12 NYCRR 23-1.5(c)(3) in support of his § 241(6) claim.
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." The defendants were aware that the plaintiff was alleging a dangerous work condition related to the allegedly defective handheld power grinder he was using at the work site. The plaintiff had already testified at his deposition that the grinder he was using lacked a safety guard, that he reported this fact to his supervisor, and that he was instructed to use it anyway. He further described in detail how the accident occurred. There were no new facts or theories of liability involved in the proposed amendment to assert the additional Industrial Code violation.
Defendants failed to sustain their prima facie burden of demonstrating either that 12 NYCRR 23-1.5(c)(3) was inapplicable to the facts of this case, or that the alleged violation of that provision was not a proximate cause of the plaintiff's injuries.
The Appellate Division upheld the lower court decision on both counts.
June 28, 2017
Appellate Division, Second Department
The plaintiff fell while working at an electric power plant owned by Dynegy. He was descending a ladder affixed to the side of a tanker-trailer owned by F.T. Silfies, Inc. that was being prepared to remove a load of fly ash when he slipped off the ladder. The plaintiff attributes his fall, in part, to the design of the hand railings on the ladder affixed to the tanker-trailer owned by Silfies. He also attributes his fall to the failure of Dynegy to install a type of safety device known as a "SafeRack system," which would have allowed workers to open the hatches on top of the tanker-trailer without using the affixed ladder.
The plaintiff commenced an action to recover damages for personal injuries (Action No. 1) against the Dynegy defendants, alleging violations of Labor Law §§ 200, 240(1), and 241(6), and common-law negligence. The Dynegy defendants, in turn, commenced a third-party action against Silfies. The plaintiff subsequently commenced a direct action (Action No. 2) against Silfies. Silfies moved, for summary judgment dismissing the complaint in Action No. 2, and the Dynegy defendants separately moved for summary judgment dismissing the complaint in Action No. 1. The Supreme Court granted those branches of the separate motions which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 200 and 240(1) and common-law negligence in Action Nos. 1 and 2.
The Dynegy defendants and Silfies each established that they were entitled to judgment as a matter of law dismissing the Labor Law § 240(1) causes of action asserted against each of them by showing that the plaintiff's work did not constitute erection, demolition, repairing, altering, painting, cleaning, or pointing of a building or structure within the meaning of Labor Law § 240(1) and that the work constituted merely routine maintenance of the storage silos. In addition, Silfies, the trailer tank owner, established that it was not an owner, general contractor, or statutory agent under Labor Law § 240(1).
The Appellate Division unanimously affirmed the lower court’s dismissal of the 240(1) claim.
PRACTICE POINT: There have been epic disagreements as to what constitutes maintenance and what constitutes repair or alteration. Here the fact that the task being undertaken by the plaintiff, the removal of fly ash, was done on a daily basis and thus was appropriately considered maintenance. The first thing I look for on a maintenance case is records evidencing how routinely the task was done. Does not matter if it is done daily, every year or every 3 years, if it is done on a regular basis then it is regularly scheduled maintenance and thus not a repair or alteration, and not a labor law case.
Labor Law § 200 and Common-Law Negligence (VCP)
The Second Department affirmed, holding that the Supreme Court properly granted those motions for summary judgment dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence in both actions. Here, the plaintiff alleges that his accident was caused by the defective design of the ladder affixed to the tanker-trailer owned by Silfies, and by the failure of Dynegy to install a particular safety device. Thus, the accident arose from alleged defects in the methods or materials utilized by the plaintiff to perform his work and recovery against the owner or general contractor cannot be had unless it is shown that the party to be charged had the authority to supervise or control the performance of the work. Here, the Dynegy defendants and Silfies each established their prima facie entitlement to judgment as a matter of law by demonstrating that they did not have the authority to supervise or control the performance of the plaintiff's work. In opposition, the plaintiff failed to raise a triable issue of fact.
March Assoc. Constr., Inc. v CMC Masonry Constr.
June 28, 2017
Appellate Division, Second Department
Lowe's entered into a contract with March Associates, to serve as the general contractor in the building of its new store in Chester. March entered into a contract with CMC Masonry to perform the masonry work on the project. In the summer of 2008, CMC dissolved and Blue Ridge Construction took over its projects.
The decedent was working at the construction site for the new store completing some punch list items from the masonry subcontract when he fell approximately 18 to 20 feet from an extension ladder. He suffered traumatic brain injuries which led to his death.
The decedent's wife, on behalf of his estate and individually, commenced a wrongful death action against the respondents, alleging violations of Labor Law §§ 200, 240(1), and 241(6), and common-law negligence. The respondents, in turn, commenced third-party actions against CMC and Blue Ridge seeking contractual and common-law indemnification.
Pursuant to a summary judgment motion made by the respondents, all causes of action against them in the underlying wrongful death action except the statutory violation claims under Labor Law § 240(1) were dismissed. The respondents commenced the instant action against Blue Ridge, its workers' compensation carrier, Netherlands Insurance Company, its commercial general liability carrier, Excelsior Insurance Company, and the parent company of Netherlands and Excelsior, Peerless Insurance Company (hereinafter collectively the appellants) seeking a judgment declaring that the defendants were obligated to indemnify them.
The wrongful death action was settled for $1,300,000. Netherlands paid $1,000,000 towards the settlement on behalf of its insured, Blue Ridge, and the respondents paid $300,000 towards the settlement. As a condition of the settlement, in order to avoid personal exposure of Blue Ridge, the respondents were required to discontinue all third-party claims against Blue Ridge. It was further stipulated that the settlement of the underlying wrongful death action would have "no effect whatsoever on the declaratory judgment action that is pending by [the respondents] against the entities in that action, and that action continues as it currently stands."
The respondents moved for summary judgment on their cause of action for a judgment declaring that they are entitled to common-law indemnification from Blue Ridge and reimbursement of the $300,000 settlement proceeds paid by them in the underlying wrongful death action from Excelsior, as Blue Ridge's general liability insurance carrier. The appellants opposed the motion and cross-moved for summary judgment for a declaration in their favor on that cause of action, arguing that they had no obligation to defend, indemnify, or remit any payment to the respondents for any loss or expense incurred in the underlying wrongful death action.
The Supreme Court granted that branch of the motion of the respondents which was for summary judgment on their cause of action for a judgment declaring that they are entitled to common-law indemnification against Blue Ridge and reimbursement in the sum of $300,000 from Excelsior, and denied the appellants' cross motion for summary judgment for a declaration in their favor on that cause of action.
Indemnity Issues in Labor Law (SEP)
At some point during motion practice, March abandoned its claim for additional coverage under the Netherlands policy, and focused solely upon ensuring its common law indemnity against Blue Ridge was covered by Blue Ridge’s CGL carrier, Excelsior. Excelsior argued that (a) Blue Ridge was plaintiff’s employer at the time of the incident and thus coverage was precluded by operation of employers’ liability exclusion and (b) even if it was not his employer, March had not made a showing of common law indemnification.
The trial court ruled that March was entitled to common law indemnity against Blue Ridge, and further that decedent was not employed by Blue Ridge at the time of the incident --- thereby placing the loss within Excelsior’s CGL coverage for Blue Ridge. The trial court based its opinion on Excelsior’s Answer which denied knowledge and information sufficient for a belief as to decedent’s employment status at the time of the fall, and further Excelsior’s statement in a Bill of Particulars that, upon information and belief, decedent was working as independent contractor when he fell.
In denying March’s motion, and reversing the trial court, the Appellate Division noted that neither the “DKI” in Excelsior’s Answer, nor its subsequent Bill of Particulars, amounted to a judicial admission that decedent was not in the employ of Blue Ridge. Rather, the Court pointed to the existence of investigation materials, depositions, and workers’ compensation payments as further evidence of decedent’s potential employment by Blue Ridge.
The Appellate Division, however, affirmed the trial court’s refusal to preclude March’s arguments. Excelsior argued, inter alia, that March’s decision to discontinue a common law indemnity claim against Blue Ridge in the underlying action collaterally estopped March from prosecuting the same claim in the Declaratory Judgment action. Without judgment against Blue Ridge, it followed no recovery could be made against Excelsior. In denying, the Court ruled that the stipulation provided March the right to proceed in the DJ Action--- and such right included pursuing payment for its common law indemnity claim.
In addition, the Court also noted that a question of fact remained as to decedent’s employer at the time of the fall. As support for the denial, the Trial Court pointed to Blue Ridge’s Answer in the underlying action which denied decedent was its employee. The Court appears to have ruled that Blue Ridge’s denial could be akin to an admission that decedent was not employed.
Finally, with regard to the actual common law negligence claim, the Court found a question of fact as to whether Blue Ridge was negligent. Blue Ridge was cited by OSHA for a violation of a safety regulation which “may be considered some evidence of negligence.”
June 9, 2017
Appellate Division, Fourth Department
The Town of Cheektowaga contracted with plaintiff's employer to perform the work on the vacant home under the town's statutory authority to repair vacant homes within its borders. At the time of the accident, plaintiff was repairing a vacant home located in the town. He was standing on a ladder and replacing a board on the exterior of the house, when bees flew out of the hole and startled plaintiff. As he began to descend the ladder, he fell and injured his left arm. Plaintiff brought suit against the town for violations of §§ 240(1), 241(6), 200 and common law negligence.
The town moved for summary judgment on all claims. The Supreme Court denied the motion as it related to the § 240(1) and 241(6) claims and granted its motion as to the § 200 and common law negligence claims.
Labor Law § 240(1) (DRA) & Labor Law § 241(6) (MAS)
The town established as a matter of law that it is not liable for plaintiff's injuries under Labor Law §§ 240 (1) and 241 (6) as it was not an owner of the property or a general contractor on the project. For the purposes of the Labor Law, the term "owner" is not limited only to the titleholder of the property where the accident occurred, but also "a person who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his [or her] benefit" (Farruggia v Town of Penfield, 119 AD3d 1320, 1321,Here, the Town did not hold title to the property, nor did it have any interest in the property. Furthermore, even assuming, for the sake of argument, that the town was an owner of the property, it would be entitled to the homeowner exemption under the Labor Law because the structure was a single family dwelling.
The Town submitted evidence establishing that no town employees were on the job site, plaintiff's employer, and not the town, directed plaintiff to the job site, and the town did not have the authority to direct plaintiff with respect to the method and manner in which he would perform the work. Thus, the town established that it was not a general contractor inasmuch as it was not responsible for coordinating and supervising the project.
PRACTICE POINT: The entities that can qualify as an “Owner” or “Contractor” are rather broad but cannot be extended this far. The town was not in any was an owner and the work was not being done for their benefit.
Labor Law § 200 and Common-Law Negligence (VCP)
Plaintiff on his cross appeal was found to have abandoned any contention that the court erred in granting those parts of the Town's motion seeking summary judgment dismissing his Labor Law § 200 and common-law negligence claims. As noted above, since the town did not control the means and methods of Plaintiff’s work, and there was no evidence that the town created the dangerous condition, the lower court’s ruling was unlikely to be overturned on appeal.
June 9, 2017
Appellate Division, Fourth Department
Plaintiff was injured while working at property owned by defendant William S. Arant. The property was purchased by Arant in 1989 with the intention of using it as his residence. However, Arant ultimately obtained employment out-of-state and never lived on the property. Years prior to the accident, Arant demolished all of the residential structures on the property, and there was no evidence that Arant ever intended to build a new residence on the property. In 2012, Arant listed the property for sale and entered into a contract with plaintiff's employer, third-party defendant ICC, to remove debris from the property. Because of concerns that asbestos might be present, defendant GYMO was also retained to monitor air quality on the property.
At the time of plaintiff's accident, he was cutting a hole, using a six-foot ladder and a demolition saw, in a large tank that had been excavated from the property earlier in the day. Something inside the tank either caught fire or exploded, causing plaintiff to be blown from, or to jump from, the ladder and suffer the alleged injuries.
Plaintiff brought suit against Arant and GYMO, asserting claims based on common-law negligence and the violation of Labor Law §§ 200, 240 (1), and 241 (6). GYMO moved for summary judgment on all claims and cross claims. Plaintiff moved for summary judgment against Arant on the 240(1) and 241(6) claims, and Arant cross moved for dismissal of all claims. The Supreme Court Granted GYMO’s motion, denied Plaintiff’s motion and granted Arant’s cross motion.
GYMO was a construction manager but did not have the ability to control the injury-producing activity, and as such not a proper Labor Law defendant pursuant to §§ 240(1) and 241(6).
Arant argued that he was entitled to the homeowner exemption (see below) and that the plaintiff’s injury was due to an elevation related risk contemplated by § 240(1). It is well settled that the mere fall from a ladder in and of itself does not give rise to an award of damages under the Labor Law (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 288). A plaintiff must show not only that he [or she] fell at a construction site, but also that he or she did so because of the absence or inadequacy of a safety device" (Kuntz v WNYG Hous. Dev. Fund Co. Inc., 104 AD3d 1337.
Plaintiff testified at his deposition that the ladder he was using was properly placed next to the tank and that all four feet were planted such that it was not tipping or moving. Plaintiff admitted that he was not at a high enough elevation to need a harness, nor did he believe that the ladder needed to be secured to the tank in any way. Plaintiff further testified that he had all of the safety equipment necessary to perform the job. Additionally, there is no indication in the record that plaintiff's fall was caused by any failure in the ladder. Plaintiff claimed, instead, that he was "blown" from the ladder, either from the force of the fire that came out of the tank, or by the tank actually knocking into him during the fire and/or explosion. The Appellate Division agreed with the trial court in upholding the dismissal of Plaintiff’s 240(1) claim against Arant.
PRACTICE POINT: Here the plaintiff testified that the ladder never moved prior to the explosion, that it was solely the explosion that caused the fall and that additional safety devices were not needed. That is sufficient to allow for a Summary Judgment decision in favor of the defendant in many cases.
Arant argued that he was entitled to the homeowner exemption which exempts owners of one and two-family dwellings who contract for but do not direct or control the work from liability under §§ 240(1) and 241(6). The exemption does not apply to owners who use their one- or two-family houses purely for commercial purposes, including renovating a residence for resale or rental. A determination as to whether the exemption applies in a particular case turns on the nature of the site and the purpose of the work being performed, and must be based on the owner's intentions at the time of the injury, not the time of the purchase.
Plaintiff's Labor Law § 241 (6) claim against Arant is premised upon a violation of 12 NYCRR 23-1.25 (f). Plaintiff has failed to allege, that at the time of the accident, he was engaged in any activity covered by that regulation, i.e., welding or flame-cutting. The Appellate Division affirmed the dismissal of this claim against Arant.
Labor Law § 200 and Common-Law Negligence (VCP)
The Fourth Department affirmed, holding that the court properly dismissed plaintiff's common-law negligence and Labor Law § 200 claims against Arant on the ground that Arant did not control the activity bringing about the injury. Similarly, The Fourth Department affirmed the dismissal as to GYMO, agreeing that GYMO was not a construction manager with the ability to control the injury-producing activity.
June 16, 2017
Appellate Division, Fourth Department
Plaintiff was injured when he fell from an elevated boom lift that he was using to install windows in a building under construction at defendant Cornell University. At the time of the accident, plaintiff was employed as a glazier by a subcontractor hired by defendant Skanska, the general contractor on the construction project. The elevated boom lift was designed and manufactured by defendant JLG and leased to plaintiff's employer by defendants Skyworks.
Plaintiff brought suit against Cornell and Skanska, alleging common-law negligence and violations of Labor Law §§ 200, 240 (1) and 241 (6). All claims except for the § 240(1) claim have been dismissed by stipulation as to Cornell and Sanska. Plaintiff brought a second suit against JLG alleging defective design and manufacture of the boom lift, and negligent maintenance, repair, and inspection against Skyworks. The suits were consolidated, and in their amended answer following consolidation, Cornell and Skanska asserted cross claims for indemnification against the Skyworks and JLG.
JLG moved for summary judgment dismissing the complaint and cross claims against it, Cornell and Skanska cross-moved for summary judgment seeking a conditional order of indemnification against JLG, the Skyworks defendants moved for summary judgment dismissing the complaint and cross claims against them, and JLG moved separately for leave to assert cross claims for contribution against the other defendants. The Supreme Court granted JLG's motion for leave to file cross claims for contribution and otherwise denied the motions and the cross motion.
Indemnity Issues in Labor Law (SEP)
With regard to Skyworks, the Appellate Division reversed the trial court’s decision and held that Skyworks was, in fact, entitled to summary judgment. In so holding, the Court noted that Skyworks established that it did not owe a duty of care to plaintiff. Accordingly, where no duty is owed to plaintiff, it follows Skyworks was also absolved of any potential tort liability. Further, where Skyworks was free from tort liability, it also followed that the cross-claims of Cornell, Skanska and JLG, for contribution, were likewise rendered moot.
Cornell and Skanska, likewise, proved themselves free of negligence as neither exercised direction supervision nor control over plaintiff’s work. Nevertheless, a motion for common law indemnity requires the movant also establish some degree of negligence that is attributable to the targeted indemnitor; here, JLG. The Court ruled that Cornell/Skanska did not establish JLG’s negligence, and thus, denied the application for common law indemnity on a question of fact.
While the Court did permit JLG to amend its Answer to assert a cross-claim for contribution against Skanska and Cornell (we’re not sure why as both Skanska and Cornell have been determined to be free of negligence), it is noted that the Court rejected JLG’s motion to dismiss Cornell/Skanska’s motion for common law indemnity. JLG argued that Skanska/Cornell were judicially estopped from arguing the lift from which plaintiff was defective because in an earlier motion sequence both parties argued that the lift was not defective. Because the previous position of Skanska/Cornell was not adopted by the Court, it followed that the principles of judicial estoppel did not apply. As such, Skanska/Cornell’s indemnity claim remained preserved for the Court’s interpretation.
Jones v Jay P. Tovey Co., Inc.
June 16, 2017
Appellate Division, Fourth Department
Plaintiff, an employee and owner of third-party defendant Stephen J. Jones Contracting, Inc., fell from a ladder while working on a single-family home. Plaintiff brought his Labor Law and common-law negligence action against defendant-third-party plaintiff Jay P. Tovey Co., Inc. the general contractor on the project. Plaintiffs cross-moved for partial summary judgment on the issue of defendant's liability under Labor Law § 240 (1), which the Supreme Court granted.
The Appellate Division held that the Supreme Court erred in granting the cross motion because there had only been limited discovery at this stage of the case. Discovery had been limited to plaintiff's own account of the accident during his examination before trial, and defendant has not had an opportunity to explore potential defenses.
PRACTICE POINT: This case bucks a disturbing trend of some jurisdictions granting Summary Judgment before discovery is completed or even before the defendant has any opportunity to conduct deposition. This is particularly troublesome in a labor law case when many of the witnesses to be deposed are non-party witnesses who may have witnesses the accident and the instruction provided to the plaintiff.
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; Respirators. |
§ 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 hat. Such hat may be an approved safety hat if required by this Part (rule). |
Eberl v. FMC Corp., 872 F.Supp.2d 250 (W.D.N.Y 2012) |
Eberl held that 12 NYCRR § 23-1.8(c) was inapplicable as Plaintiff himself testified that waterproof clothing was not appropriate while welding, the activity he was engaged in while injured. |
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