Labor Law Pointers
Volume VII, No. 9
Wednesday, July 4, 2018
A Monthly Electronic Newsletter Addressing
New York State Labor Law
Decisions and Trends
From the Editor:
Do you have a situation? We love situations.
Happy Fourth of July to one and all. I am celebrating, in my traditional style, in Canada at the beach with my family. We will have fireworks later and a fire on the beach. I have been doing this for my entire life, and love that it is now a tradition for my children. Some find it odd that we celebrate the United States independence in another country, but it seems completely natural to me. The border was interesting though, with the new tariffs I was concerned that they would have an issue with my aluminum beverage containing cans, but all was just fine.
As summer starts I always remind our readers that we offer training on any topic labor law or risk transfer related to all of our readers. Just drop me a line and we can set up an in person seminar or a webinar. Summer is a great time for this as many carriers have summer team meetings, and any time you have a group of claims professionals in one place it is an opportunity for us to provide some additional training, an assessment of new cases and trends, accident investigation tips, risk transfer through additional insured status, contractual indemnity provisions and common law indemnity and defending and evaluating the labor law case.
We have a popular seminar lately on creating opportunity for early resolution. We all know that the more quickly a labor law case, or any case for that matter, can be closed, statistically the better the carrier does. It reduces defense expenses, eliminates the potential that the injury can get worse and as always, a closed file is a good file. We walk through the life of a labor law case, outlining the moments to create opportunity to interest the plaintiff in resolution, without sacrificing the strength of your position. We also discuss methods of accelerating the process of defending the case to move it to culmination more quickly.
I would also like to recommend that you subscribe to our other newsletters, all available at the same cost, free. For Coverage Pointers contact Dan Kohane or for Premises Pointers contact Jody Briandi
I have several photos for you this month; the first provided by one of our paralegals who was having work done on her chimney, she was sick and tired of bats getting into her basement. When she showed me the picture I reminded her of the exclusion for single and double home owners who DO NOT supervise, direct or control the means and method of their work. She told me that when she saw the scaffold, and no harnesses, that she and her husband left immediately.
I love this picture; it perfectly captures the reason why we fight for reform of the Labor Law. Simply adding culpable conduct of the plaintiff to section 240(1) would allow us to point out to a jury that the plaintiff chose to create this mish mash of ladders and rope to put up siding. Do not think a just is going to award this guy much, if anything, after seeing this photo.
How about this one, a ladder just leaned over the open stair way. Not difficult to imagine the foot of the ladder slipping back and the soon to be plaintiff falling down through the opening. The taller ladder leaned against the wall just past may be the basis of a sole proximate cause defense if the plaintiff had been instructed to use that ladder for the job, it was available and appropriate and he misused of failed to use it without any valid reason.
Now this guy is just plain crazy. A plank, balanced on top of an A frame ladder which is on the stairs, with another plank across it with a closes step ladder balanced on it and leaned against the wall as he stands on it with one leg. What could go wrong?
Steve Peiper’s rant on the Second Department decision in Sullivan is both a good read and accurate. A contractual obligation to indemnify is not and cannot be valid where the indemnitee would be indemnified for its own negligence, and defense costs on a contractual indemnification case should only be awarded when and where indemnification for damages may be awarded without violating the GOL. Read Steve’s analysis below, it is much better than mine.
Happy Fourth of July, Happy Birthday America and happy summer to all our readers.
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.
Villanueva v 114 Fifth Ave. Assoc. LLC
June 5, 2018
Appellate Division, First Department
Plaintiff was injured at a construction site owned by defendant 114 Fifth Avenue and managed by defendant Structure Tone, when he and three other workers attempted to load a five hundred pound steel I-beam into an internal freight elevator in order to transport it from the 18th floor to the ground floor. The workers opened a hatch on top of the elevator, and were attempting to stand the beam on its end, with the high end extending through the open hatch, when the beam fell down half a foot onto plaintiff's shoulder.
The trial court denied defendants’ summary judgment motion dismissing plaintiff’s Labor Law §§ 240(1), 200 and common-law negligence claims, and granted plaintiff's motion for partial summary judgment on the issue of liability on the § 240(1) claim.
The First Department affirmed as plaintiff established entitlement to judgment as a matter of law by showing he was engaged in an activity covered by the statute, that defendants failed to provide an adequate safety device to protect him, and that such violation was a proximate cause of the accident. The half foot in which the steel I-beam dropped onto plaintiff's shoulder was not de minimis, given the I-beam's weight and since the hazard was one directly flowing from the application of the force of gravity to a person, citing Runner v New York Stock Exch., 13 NY3d 599, 604 (2009).
PRACTICE POINT: Runner has made it virtually impossible for a height differential capable of causing injury to be de minimis. My soap box minute, the labor law was never intended to protect a worker who was lifting a beam and had it drop onto his shoulder by 6 inches, but that is the current state of the law it seems.
Labor Law § 200 and Common-Law Negligence (VCP)
The First Department reversed and dismissed these claims, finding no evidence this claim arises from an alleged defect or dangerous condition on the premises, nor is there evidence showing a defect inherent in the elevator. The Court also held Structure Tone did not exercise the requisite supervision or control over the injury-producing work, and Fifth Avenue submitted evidence that there was no indication that it controlled the manner and means of plaintiff and All Safe’s work.
June 7, 2018
Appellate Division, First Department
Plaintiff was injured when the nylon sling attaching a one-to-two ton steel plate to an excavator snapped, causing the heavy plate to fall to the ground, bounce, and sever the pole of a nearby street sign. The impact caused the sign to be propelled toward plaintiff, hitting plaintiff. The trial court granted plaintiff's motion for partial summary judgment against defendant Judlau on his Labor Law § 240(1) claim, and denied defendants Judlau, NYC Transit Authority and City of New York's cross motion for summary judgment dismissing that claim.
The First Department unanimously affirmed, finding plaintiff established a prima facie claim under § 240(1) because as an engineer supervising the construction of a subway, he was engaged in a protected activity under the statute; that Judlau failed to provide proper protection in violation of the statute; and that violation was the proximate cause of plaintiff's injuries.
The Court found that the photographs taken immediately before the accident show that the steel plate was about two or three feet above the ground, and that this elevation differential cannot be de minimis, given the weight of the steel plate and the amount of force it generated over the course of its relatively short descent. Additionally, the Court found no evidence that plaintiff’s actions were the sole proximate cause of his injuries.
PRACTICE POINT: Runner again. Heavy things basically on the ground causing injury will sustain a §240(1) claim if they cause injury no matter how small the fall is.
Aspromonte v Judlau Contr., Inc.
June 12, 2018
Appellate Division, First Department
A rail improperly wedged against a wall broke or gave way when plaintiff leaned on it while moving a broken light fixture out of the way, causing him to fall a long way down a shaft. The trial court denied plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim as against defendants Judlau and the Metropolitan Transportation Authority.
The First Department unanimously affirmed, finding plaintiff established entitlement to judgment as a matter of law through his testimony of the facts, and that of his coworker, his foreman, and defendants’ safety personnel regarding their observations shortly after the accident, which was consistent with plaintiff's account. However, the Court held defendants raised a triable issue of fact whether the accident occurred in the manner described by plaintiff as both defendants’ experts’ affidavits opined that plaintiff's injuries are inconsistent with the alleged fall. The Court rejected plaintiff’s contention, that because the expert's conclusions contradict plaintiff's account and other evidence corroborating his account, the opinions were speculative.
PRACTICE POINT: The value of an expert cannot be over rated in a situation like this. Recall that the plaintiff had testified as to how he fell and there was no available testimony providing an alternative description which would have fallen outside of the labor law. What defendant counsel then did was to retain experts to opine that the injuries sustained were not consistent with the accident as described by the plaintiff thus creating a question of fact as to how the accident occured.
Nolan v Port. Auth. of N.Y. & N.J.
June 12, 2018
Appellate Division, First Department
The makeshift ladder on which plaintiff was descending after detaching a crane cable from the top of an eight-foot box slid out from under him. The trial court granted plaintiff’s summary judgment motion on his Labor Law § 240(1) claim.
The First Department unanimously affirmed as plaintiff’s testimony that the makeshift ladder slid out from under him established his entitlement to partial summary judgment to liability. In opposition, the Court held defendants failed to raise a triable issue of fact and rejected the affidavit of plaintiff's coworker, who stated “[he] observed [plaintiff] fall from the ladder after he appeared to have missed' the last step,” as it does not refute plaintiff's assertion that the ladder slid out from beneath him.
PRACTICE POINT: When the ladder moves, slides, shifts, twists, bounces, jumps, levitates or otherwise changes position causing the plaintiff to fall, it is very likely going to be a §240(1) case. The exception is the second department where they are looking more closely at who placed the ladder. While they have not yet come out and said it, they are moving towards a place where a moving ladder, in good shape, which moves because of the manner in which the plaintiff placed it, creates a question of fact on sole proximate cause. BUT, read the Fourth Department decision in Kipp below, a real change is happening there.
June 12, 2018
Appellate Division, First Department
Plaintiff, while employed by nonparty Capitol as a sign installer, allegedly fell from a ladder. His work was performed at 31-01 Steinway Street for the opening of a new retail store owned and operated by defendant Express. Express hired Russco as the general contractor, and retained Ruggles as the fabricator and installer of signage and awnings. Ruggles subcontracted the installation work to plaintiff’s employer, Capitol.
The trial court granted plaintiff’s summary judgment motion on his Labor Law § 240(1) claim against Russco, denied Russco’s summary judgment motion dismissing that claim as well as to amend its answer to assert a cross-claim for contractual indemnity against Ruggles, granted Ruggles’ motion to dismiss the § 240(1) claim against it, and granted Express’ motion against Russco on its contractual indemnity claim.
The First Department affirmed denial of Ruscco’s motion to dismiss the § 240(1) claim against it on the ground that it is not a proper defendant as there was an issue of fact as to whether its obligations as the general contractor on the project extended to the work performed by plaintiff, and the Court could not say, as a matter of law, that Russco was not responsible for plaintiff's safety. As a result, Russco was not entitled to summary judgment dismissing this claim as against it, and also that plaintiff was not entitled to summary judgment against Russco.
As to Ruggles, the Court also held the § 240(1) claim should not be dismissed because it was a statutory agent of Express since it was undisputed that Express hired Ruggles as the sole contractor responsible for fabricating and installing all signage and awning work at the project, which plaintiff was performing at the time of his alleged injuries. The Court further found Ruggles was delegated with the requisite supervision and control over the injury-producing work such that it cannot escape liability by delegating said work to plaintiff’s employer.
PRACTICE POINT: Where a defendant has the authority to supervise, direct of control the means and method of the injury producing work, that party is a valid defendant in a §240(1) case. I know I sound a little like a broken record, but please read the contracts, every one, every time. Delegating the responsibility may work to create a transfer of the risk, but it does not remove a valid claim against that party, it merely transfers who is paying for the failure to keep the plaintiff safe.
June 14, 2018
Appellate Division, First Department
Plaintiff allegedly was injured when he fell from a six-foot A-frame ladder while performing work on the sprinkler system in defendant's building. According to plaintiff, as he was tightening a bolt, the ladder moved and he fell to the floor. The trial court granted plaintiff's partial summary judgment motion for liability on his Labor Law § 240(1) claim, and denied defendant's cross-motion for summary judgment to dismiss that claim.
The First Department unanimously affirmed, finding that contrary to defendant's contention, the record showed plaintiff’s work at the time of his accident constituted an alteration within the meaning of § 240(1) because it included reconfiguring the premises’ sprinkler system to comply with the fire code and entailed, cutting and removing pipes, relocating pipes and valves, and installing components. That plaintiff was the sole witness to the accident does not preclude summary judgment in his favor where nothing in the record contradicts his account or raises an issue of fact as to his. Further, the Court noted that any failure on plaintiff's part to ensure that his coworker had properly set up the ladder would, at most, constitute comparative negligence, a defense inapplicable to this claim.
PRACTICE POINT: Remember that an alteration, since the 1998 Court of Appeals Joblon case, “requires making a significant physical change to the configuration or composition of the building or structure.” In Joblon the plaintiff was making a small hole in a wall to pass a wire through it. Here surely installing pipes for a sprinkler system is going to be an alteration. Long gone are the days where un-witnessed accidents are automatically a question of fact.
June 14, 2018
Appellate Division, First Department
Plaintiff allegedly was injured while pulling a mobile scaffold with both hands, when she stepped backward and her left heel fell into one of the estimated twelve-inch deep trenches in the concrete flooring, and a wheel of the scaffold dropped onto her foot. The trial court denied defendants’ summary judgment motion seeking dismissal of the Labor Law §§ 241(6), 200 and common-law negligence claims.
The First Department unanimously affirmed, finding defendants’ were not entitled to dismissal of the § 241(6) claim predicated upon an alleged violation of Industrial Code regulation (12 NYCRR) § 23-5.8(h), which provides that “[manually-propelled] [s]caffolds shall be moved only on level floors or equivalent surfaces free from obstructions and openings”. The Court found factual issues as to whether plaintiff’s leg injury was proximately caused by defendants’ violation of regulation 5.8(h).
Labor Law § 200 and Common-Law Negligence (VCP)
The First Department affirmed denial of defendants’ motion to dismiss these claims as there are factual issues whether the testimony and photographic evidence show defendants were obligated to maintain the safety of the premises, were negligent in doing so, and had actual or constructive knowledge of the uncovered trenches in the concrete flooring where several trades were working at the time of plaintiff’s accident.
Muqattash v Choice One Pharmacy Corp.
June 14, 2018
Appellate Division, First Department
Plaintiff allegedly was injured by a live electrical wire and fell from a ladder after receiving an electrical shock. Plaintiff and his supervisor were in the process of installing new electrical outlets at premises owned by defendant 1550 Realty and leased to Choice One, who retained third-party defendant Macintosh to install the outlets. Upon taking ownership of the premises, but before entering into a lease with Choice One, 1550 Realty had the drop ceiling and electrical system where the accident occurred installed, and that no one else performed work in the ceiling until the time of the accident.
The trial court denied 1550 Realty cross-motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims and on its third-party common-law indemnity claims against Macintosh, and denied Choice One’s cross-motion for summary judgment.
Labor Law § 200 and Common-Law Negligence (VCP)
The First Department affirmed denial of 1550 Realty’s motion as there were issues of fact whether it was responsible for creating the dangerous condition, i.e. the live wires which harmed plaintiff, since it had the drop ceiling and electrical system where the accident occurred installed, and no one else performed work in area before plaintiff’s accident. Accordingly, 1550 Realty failed to establish that it did not create the defective condition that caused plaintiff’s accident.
Indemnity Issues in Labor Law (SEP)
As a result of 1550 Realty’s failure to absolve itself from negligence, it follows that its claim for common law indemnity against Macintosh likewise failed.
June 13, 2018
Appellate Division, Second Department
Plaintiff allegedly fell from a ladder while installing a window at defendant’s property. The trial court denied defendant’s summary judgment motion dismissing plaintiff’s Labor Law § 240(1) claim.
The Second Department unanimously affirmed, rejecting as facially defective and inadmissible defendant’s deposition testimony as she testified through a Spanish interpreter but the errata sheets as well as defendant’s affidavit in support of the instant motion were both in English and not accompanied by a translator’s affidavit in compliance with CPLR § 2101(b). Defendant’s remaining evidentiary submissions were insufficient to establish prima facie entitlement to judgment as a matter of law on the applicability of the homeowner’s exemption under the statute.
PRACTICE POINT: An all too common problem with moving papers and opposing papers is making certain they are in appropriate evidentiary form. There are many pitfalls and this is just one of them. A careful look at all exhibits before submitting is a critical step.
Lorde v Margaret Tietz Nursing & Rehabilitation Ctr.
June 20, 2018
Appellate Division, Second Department
Plaintiff, a carpenter, allegedly was injured while performing renovation work at defendant’s premises. At the time of his incident, plaintiff was installing sheetrock on the ceiling of the sixth floor dining room. He began his work using a ladder to take measurements and then returned the ladder to one of his coworkers who had been using it first. He then stood on an inverted bucket to reach the ceiling and the bucket tilted, causing him to fall. The trial court denied plaintiff’s summary judgment motion on his Labor Law § 240(1) claim.
The Second Department affirmed, finding plaintiff failed to establish his prima facie entitlement to summary judgment on the Labor Law § 240(1) cause of action. Plaintiff’s testified that there were ladders and Bakers scaffolds kept on the job site, and that he had previously requested more ladders and additional ladders were supplied, and that on the day of his accident, he stood on the inverted bucket because the other ladders in the dining room were in use. However, the Court held plaintiff's testimony failed to eliminate all triable issues of fact as to whether there were ladders available at the job site at the time of the accident, and whether plaintiff's decision to stand on the bucket was the sole proximate cause of his injury.
PRACTICE POINT: The Second Department will take a stand on a case like this, where there is evidence that the plaintiff was the sole proximate cause of his injuries. While they did not award summary judgment to the defendant, they found a question of fact for the jury to determine on the availability of an appropriate safety device, here a ladder instead of the bucket.
Sullivan v New York Athletic Club of City of N.Y.
June 20, 2018
Appellate Division, Second Department
Defendant NYAC hired Talisen as a general contractor to renovate a bathroom on NYAC's premises. Talisen hired plaintiff's employer and third-party defendant, Premier, as a subcontractor for the bathroom renovation. Talisen agreed to indemnify NYAC, and Premier agreed to indemnify both Talisen and NYAC “[t]o the fullest extent permitted by law,”. Premier also agreed to purchase and maintain insurance that included Talisen and NYAC as additional insureds. Premier obtained insurance, which included a blanket additional insured contractors endorsement that amended the entities to be insured “to include any person or organization that [it] agree[d] in a written contract requiring insurance' to include as an additional insured,” but which did not name any specific entity.
As part of their work in renovating the bathroom, plaintiff and a coworker were carrying a heavy beam on their shoulders from their truck to the bathroom. The beam had to be brought into the building and then down a set of steps. Plaintiff allegedly felt his “knee go forward” as he neared the bottom of the steps with the beam on his shoulder, and he subsequently dropped the beam and fell to the floor. He sustained an injury which his expert opined was caused by “the excessive load of the steel beam he was carrying on his body coupled with the activity of descending stairs.”
The trial court denied third-party defendant's summary judgment motion dismissing (1) the Labor Law § 240(1) claim, (2) the third-party contractual indemnity claim alleging breach of an agreement to procure insurance, and (3) the cross-claims seeking contractual indemnity claim alleging breach of an agreement to procure insurance asserted against it by Talisen, (4) denied plaintiff's-cross motion for summary judgment on the § 240(1) claim, and (5) denied Talison’s cross motion on its contractual indemnity claim against the third-party defendant.
The Second Department held found plaintiff did not establish his prima facie entitlement to judgment as a matter of law as he failed to demonstrate that his injury was caused by an elevation-related hazard encompassed by Labor Law § 240(1). The mere fact that plaintiff was injured by the weight of a heavy object being lifted or carried does not give rise to liability under the statute, nor is there liability arising from plaintiff's act of descending the stairs. The Court further held Premier was entitled to dismissal of this claim through evidence plaintiff was injured by the weight of the beam rather than an elevated-related risk.
PRACTICE POINT: Once again a plaintiff is injured while carrying a heavy beam. Recall the Villanueva case we analyzed above. In that case the plaintiff was awarded summary judgment by the First Department when a heavy beam fell 6 inches onto his shoulder as he was loading it into an elevator. Here the Second Department dismissed plaintiff’s case when a heavy beam caused the plaintiff to fall. A cynic (like me) may say the difference really is what department made the decision. Another point of view would say that in the first case the beam fell causing the injury but in the instant case the plaintiff himself fell, though only to the floor and not off a ladder or scaffold, thus no §240(1) claim.
Indemnity Issues in Labor Law (SEP)
Talisen and NYAC also moved for contractual indemnification from Premier. In support of its application, Talisen and NYAC established that a contract existed between Talisen and Premier wherein Premier agreed to provide indemnity “to the fullest extent permitted by law” This duty included, apparently, payment of legal fees and costs wish arise from defense of an action “in connection with work performed by Premier.” As such, the Appellate Division ruled that Talien and NYAC had established a right for reimbursement of defense costs.
With regard to any indemnity exposure Talisen/NYAC may owe to plaintiff, the Court ruled differently. This is because the only claim remaining against Talisen was that of a Labor Law 200 claim. As Talisen is prohibited from being indemnified for its own negligence, it follows that there was no basis for a claim for indemnity. Nevertheless, the Court ruled that despite the lack of any contractual indemnity obligations, the right of defense costs, as described above, survived.
In addition, Premier also agreed to purchase and maintain insurance for Talisen and NYAC. Here, Premier did obtain a blanket additional insured endorsement it is reported that Premier’s carrier denied Talisen’s request for a defense. As such, the Court ruled that neither party had met their burden on summary judgment and remanded this issue back to the trial court.
Peiper’s Point – We, respectfully, dissent. This decision follows several recent decisions out of the Second Department, which appear to intermingle the duty to defend (as found in an insurance contract), and the duty to pay defense costs as part of an indemnity obligation. They are two separate issues. There is no contractual duty to defend in an indemnity agreement. There is a duty to pay damages, which might include defense costs. If there cannot be indemnity, there can be no duty to pay damages. This should include defense costs.
Here, Premier established by defeating the Labor Law 240 and 241(6) claims that Talisen’s ONLY potential exposure is due to its own negligence. As such, the Court rightly recognized that it could not be indemnified by operation of GOL 5-322.1. If it cannot be indemnified, because the clause is categorically mooted by operation of the GOL, how then are they entitled to be indemnified for defense costs? They cannot, and still be in compliance with the GOL.
With regard to the insurance procurement, here Premier procured a policy which provided additional insured status. The carrier for Premier, however, apparently disclaimed coverage to Talisen. We are not told why. If, however, it was an additional insured, but coverage was extinguished by way of an exclusion, did not Premier meet its obligation? The Court appears to be suggesting that an insurance procurement clause requires that the coverage actually be provided. We think the typical insurance procurement clause only asks that a policy name the putative AI as an additional insured. That, after all, is what Premier appeared to have done in this case. If, as Court precedent provides, insurance procurement provisions are to be strictly construed, it would appear to us that Premier, in fact, met its burden. The Second Department, obviously, feels differently.
Sullivan v New York Athletic Club of City of N.Y.
June 20, 2018
Appellate Division, Second Department
This case involves the same facts as described above, but involves the trial court’s denial of Talisen’s summary judgment motion to dismiss the Labor Law § 240(1) claim and the cross-claims for contractual indemnity and contribution by NYAC. The trial court also granted Talisen’s motion to dismiss the Labor Law § 200 and common-law negligence claims against it.
The Second Department reiterated, nearly verbatim, its analysis of the application, or lack thereof, of § 240(1) in the companion appeal above.
PRACTICE POINT: See our analysis above, the same facts reap the same result.
Labor Law § 200 and Common-Law Negligence (VCP)
The Second Department affirmed dismissal of these claims against Talisen, who demonstrated it lacked the requisite supervisory control over plaintiff’s work to subject it to liability by relying on its project superintendent’s testimony and others showing that decisions regarding the means and methods for carrying the beam were the responsibility of Premier.
Indemnity Issues in Labor Law (SEP)
Here, Talisen established that the plaintiff’s claims were without merit. As such, NYAC’s claims for contractual indemnity and contribution were rendered moot.
Peiper’s Point – But what of the defense obligations? Hmmmm?
Gargan v Palatella Saros Bldrs. Group, Inc.
June 27, 2018
Appellate Division, Second Department
Plaintiff, an employee of Kleet, was delivering material to the construction site. He testified he intended to deliver the materials to the garage, but the path was blocked by a half-full dumpster and a stack of empty pallets. Each empty pallet was eighteen feet long, four feet wide, and six inches high and he decided to move the pallets by flipping them. According to plaintiff, he successfully flipped the first pallet. As he was flipping the second pallet, he lost his footing and the pallet started to fall back toward him. He extended his left arm to stop the falling pallet and felt a “pop” in his arm when the pallet made contact with his hand.
Defendant entered into a contract to build home. The vice president of defendant testified that nonparty Kleet provided defendant with construction materials, that defendant did not always have someone on hand to accept a delivery of materials from Kleet, and Kleet would simply drop off the materials at the construction site. Kleet would deliver materials on pallets, and would usually pick up the empty pallets from the same location to which they had been delivered. He also testified that, to his knowledge, no one other than Kleet employees ever moved the empty pallets. The trial court granted defendant's summary judgment motion dismissing plaintiff’s Labor Law §§ 241(6), 200, and common-law negligence claims.
The Second Department held defendant established that the area where the injured plaintiff allegedly was injured did not constitute a “passageway” within the meaning of 12 NYCRR § 1.7(e)(1), and that there was no evidence of any tripping or slipping hazards within the meaning of 1.7(d) and (e). The Court also dismissed the Labor Law § 241(6) claim as predicated upon an alleged violation of 2.1(a)(1) because it is not applicable under the circumstances of this case.
Labor Law § 200 and Common-Law Negligence (VCP)
The Second Department affirmed and dismissed these claims as defendants’ evidence showed plaintiff’s alleged injury did not result from a physical defect at the construction site, and that the injury resulted solely from the manner in which plaintiff chose to deliver the bundles of molding and trim material. The Court noted plaintiffs did not contend defendant had the authority to supervisor or control plaintiff’s work.
June 14, 2018
Appellate Division, Third Department
Indemnity Issues in Labor Law (SEP)
At the time of the incident, Satin was the owner of the premises and Verticon served as the General Contractor. Accurate Refrigeration was a subcontractor who, in turn, retained Cooler Panel as a sub-subcontractor. Unfortunately, Cooler’s employees were constructing a wall which collapsed. The collapse struck the scissors lift and thereby “precipitated plaintiff to the ground” where he no doubt “sustained serious, severe and permanent injuries.”
At the time of the incident, Accurate was insured by Hartford. That policy also provided additional insured status to Verticon (GC) and Satin (owner). Hartford retained counsel to represent Accurate, and separate counsel to represent Verticon and Satin. Not surprisingly, the injured party was awarded summary judgment under his Labor Law 240(1) cause of action, and subsequently all parties agreed to final settlement of $3.2 million dollars with plaintiff. Under the agreement, Verticon and Satin would pay $2,1999,999 of the loss. Accurate contributed $1.00, and Cooler’s contributed $1,000,000.
Lamela, as the injured party’s employer, was not a party to the settlement. Counsel for Lamela, nevertheless, was present when the settlement was put on the record, and voiced objection at that time.
After payments were finalized, Verticon and Satin immediately sought reimbursement from Lamela in a third-party action for contractual indemnity. While there was a finding of fact as to Verticon’s potential negligence, Satin had been found to be negligence free (we presume). As such, when summary judgment motions were filed it was ONLY Satin who moved for contractual indemnity against Lamela. The trial court found that Satin, indeed, was entitled to summary judgment, and awarded recovery against Lamela.
On appeal, while the Appellate Division reviewed several arguments presented by Lamela, most of which were made for the first time on appeal and thus not before the court, the trial court’s decision was affirmed. The Third Department noted that the language of the indemnity provision was clear, and the fact was that it applied to the circumstances at bar.
However, the Court was obviously aware of the strategy employed by Hartford vis-à-vis Satin. The Court noted that while Satin was entitled to contractual indemnity, Lamela still had cross-claims for common law contribution/indemnity against Verticon, Cooler and Accurate. Thus, while Lamela was responsible for its indemnity obligations to Satin, there was nothing prohibiting Lamela for its day in court seeking apportionment of the award among and between Cooler, Accurate and Verticon.
Peiper’s Point - Oh how we love a good strategy. In that case, notice how counsel for Owner/GC smartly managed the litigation to ship ALL of its exposure to the injured party’s employer. This was the case even though the GC might have actually had some active negligence.
The Third Department’s opinion was bang on, though. While it applied the contractual indemnity claim in favor of the Owner, as it was entitled to do, the Court also recognized that plaintiff’s employer still had a right to prosecute common law claims against potentially negligence parties. This includes, perhaps, the GC.
All in all, good lawyering and an excellent decision. Kudos abound.
June 8, 2018
Appellate Division, Fourth Department
Plaintiff, an employee of the general contractor who hired Pumpcrete to supply concrete pumping equipment, was allegedly injured while guiding a concrete pump hose attached to a truck owned and operated by Pumpcrete at defendant’s property. After plaintiff’s counsel stipulated to dismissal of his Labor Law § 240(1) claim, the trial court denied Pumpcrete’s cross-motion to dismiss the Labor Law §§ 241(6), 200 and common-law negligence claims.
The Fourth Department unanimously reversed, finding Pumpcrete established that it was an agent of the owner or general contractor as the evidence showed it lacked authority to supervise or control plaintiff’s work, and plaintiff failed to raise a triable issue of fact in response.
Labor Law § 200 and Common-Law Negligence (VCP)
The Fourth Department affirmed denial of Pumpcrete’s motion to dismiss these claims, upon searching the record, by finding conflicting expert opinions with respect to this claim such that triable issues of fact exist.
Smiley v Allgaier Constr. Corp.
June 8, 2018
Appellate Division, Fourth Department
Plaintiff allegedly was injured while he and a coworker were lifting a heavy motor four feet onto the deck. They positioned themselves on each side of the motor and lifted it off the floor. Plaintiff initially gripped the motor underneath and lift it two or three feet, but had to change his grip and reposition his hands to get the motor above his chest. While plaintiff was changing his grip, he allegedly lost control of the motor and it dropped, which caused pain in his left arm and forced him to catch it from underneath to prevent it from falling to the floor.
The trial court granted plaintiff’s summary judgment motion on his Labor Law § 240(1) claim, denied defendant’s cross-motion to dismiss that claim, and also granted defendant’s cross-motion to dismiss the Labor Law § 200 and common-law negligence claims.
The Fourth Department held plaintiff failed to meet his initial burden on their motion because their submissions created issues of fact whether his “injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential”, citing Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]; see Finocchi v Live Nation Inc., 141 AD3d 1092, 1094 [4th Dept 2016]. Based on this finding, the Court also affirmed denial of defendant’s cross motion to dismiss this claim.
PRACTICE POINT: Here locating all witnesses to describe the methods to be used to do this job and there was a difference of opinion from co-workers of the plaintiff’s as to the method used to get the motor onto the scissor lift. As there was a difference of option as to the method used by plaintiff, and thus the need for any safety device to accomplish the task safely, the appropriate outcome was a question of fact so a jury can sort out that factual issue.
The Fourth Department reversed, finding Industrial Code regulation 1.7(f), which applies to stairways, ramps or runways, does not apply to the facts of this case because the undisputed evidence demonstrates plaintiff’s accident “did not involve [him] ascending or descending to a different level”.
Martin v Niagara Falls Bridge Commn.
June 15, 2018
Appellate Division, Fourth Department
Plaintiff allegedly was injured when the bridge scaffolding sheet he was detaching from underlying support cables tipped, causing him to fall. The trial court granted defendant property owner and third-party defendant and plaintiff’s employer’s summary judgment motions dismissing the Labor Law §§ 240(1) and 241(6) claims.
The Fourth Department reversed and reinstated the Labor Law § 240(1) claim, finding defendants’ own submissions raised triable issues of fact whether plaintiff's conduct was the sole proximate cause of his injuries by submitting plaintiff's deposition testimony that he chose to unhook his safety lanyard and detach the bridge scaffolding sheet without the benefit of the lanyard or other safety device. The Court determined the six-foot lanyard given to him was not an adequate safety device, however, because plaintiff also testified it was too short to permit him to reach the final clip anchoring the bridge scaffolding sheet, even if he had moved the fall arrest system cable to a location closer to that clip. Although defendants submitted evidence that other safety devices were generally available on the work site, they failed to establish as a matter of law that an adequate safety device was present that would have prevented plaintiff “from harm directly flowing from the application of the force of gravity to . . . [his] person”.
Justices Nemoyer and Winslow dissented and would grant defendant and third-party defendant motions to dismiss the § 240 (1) because defendants established as a matter of law that “plaintiff had adequate safety devices available; that he knew both that they were available and that he was expected to use them; that he chose for no good reason not to do so; and that had he not made that choice he would not have been injured”, citing Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40 [2004]). The dissent found the defendants’ evidence established that, despite the fact that plaintiff’s employer provided twenty-foot retractable lanyards and chokers for plaintiff's use, either of which would have enabled him to reach the deck clip while remaining tied off, plaintiff “chose for no good reason not to” use the adequate safety devices that were available for his protection, because he was in a hurry and wanted to complete his task more quickly (see generally Christiano v Random House, Inc., 51 AD3d 579, 580 [1st Dept 2008]).
PRACTICE POINT: This may be an occasion where an expert affidavit would have assisted. The question of fact here for the majority is that there is no proof that using the 20 foot retractable would have prevented the injury. An expert affidavit that it would have prevented plaintiff’s injury may have tipped the scales. With 2 dissents we may yet hear more on this case.
June 15, 2018
Appellate Division, Fourth Department
Plaintiff allegedly was injured when his ladder “kicked out” from under him while working for Verizon on a property owned by Steve Mueller, which was used to operate Mueller’s business, Elite Auto. Plaintiff had a stepladder and an extension ladder in his work truck, which he had driven to defendants’ property. Plaintiff’s employer prohibited its employees from using customer’s ladders or ladders without rubber feet. Plaintiff, however, used the top half of an extension ladder without rubber feet that belonged to defendants.
The trial court denied defendants’ summary judgment motion to dismiss the Labor Law §§ 240(1) and 241(6) claims, and granted plaintiff’s cross-motion on his § 240(1) cause of action.
The Fourth Department reversed, finding defendants’ own submissions, which plaintiff relied, raised triable issues of fact whether plaintiff’s own conduct was the sole proximate cause of his injuries. The Court also found defendants’ failed to demonstrate that plaintiff was not engaged in an enumerated activity under the statute since it is of no moment that the injury occurred when plaintiff was doing his “pre-job survey” to determine the best way to perform his work inasmuch as “it is neither pragmatic nor consistent with the spirit of the statute to isolate the moment of injury and ignore the general context of the work”. The Court noted this is not a situation where the inspection and work fell into two separate distinct phases of a larger project.
PRACTICE POINT: First, never loan anyone a ladder for any reason. Do not own one if possible. Second, the fact that the plaintiff was not yet working in a manner that would have been an alteration is not sufficient to deem him not to be an appropriate plaintiff. It was all part of the same project, if he had been just looking and not planning on doing any work it would not have qualified but as he intended to start work immediately after his initial inspection he was an appropriate plaintiff.
The Fourth Department affirmed denial of defendants’ summary judgment motion to dismiss the Labor Law § 241(6) claim predicated upon an alleged violation of Industrial Code regulation 1.7(f), which concerns vertical passages and which is sufficiently specific to sustain such a claim. The Court found plaintiff was injured in the process of accessing the elevated loft area, and that the loft area constitutes a working level above ground even if it was generally used only for storage.
However, the Court dismissed the claim based on regulation 1.21(a) as that provision is not sufficiently specific. As for regulations 1.21(b)(3)(i), (iv) and (4)(ii), the Court held defendants’ failed to show those regulations were not violated or that any violation was not a proximate cause of plaintiff’s accident. The Court also held regulation 1.21(c), involving single ladders, applies to this case because the ladder being used by defendant was used as a single ladder. As the ladder, which comprised only the top half of an extension ladder, was being used as a single ladder, and thus the Court held 1.21(d) did not apply to the facts of this case.
Labor Law § 200 and Common-Law Negligence (VCP)
The Fourth Department affirmed the trial court’s denial of defendants’ motion to dismiss the common-law negligence claim because they failed to establish that they did not create the dangerous condition of the ladder or have either actual or constructive notice of it. The Court held “the absence of rubber shoes on a ladder is a ‘visible and apparent defect,’ evidence of which may be sufficient to raise a triable issue of fact on the issue of constructive notice”.
June 29, 2018
Appellate Division, Fourth Department
Plaintiff, an independent contractor for defendant Devore d/b/a/ Ray Devore Professional Roofing Service (Devore), allegedly was injured when he fell from a roof. The homeowners hired Devore to install a roof on their newly constructed, single-family home. The trial court denied defendant's motion for summary judgment dismissing the complaint.
The Fourth Department reversed, finding that defendants established that they did not perform any construction work or provide any of the equipment or tools used, and they were not present at the site when plaintiff performed his roofing work.
PRACTICE POINT: Where the owner of a one or two family residential home does not supervise, direct or control the means and methods of the injury producing work, they are exempt from the labor law and cannot be a defendant. It does not matter that they were acting as the general contractor on the project, only if they actively supervised, directed or controlled the work.
Labor Law § 200 and Common-Law Negligence (VCP)
The Fourth Department reversed, finding defendants neither supervised nor controlled plaintiff’s work, and thus they were entitled to dismissal of the Labor Law § 200 and common-law negligence claims.
June 29, 2018
Appellate Division, Fourth Department
Plaintiff allegedly fell from a ladder he placed adjacent to his work area. The trial court denied plaintiff’s motion for partial summary judgment on his Labor Law § 240 (1) claim, and granted in part and denied in part the cross-motion of third-party defendant to dismiss the third-party complaint
The Fourth Department reversed and dismissed this claim as plaintiff admitted in his deposition that he had placed the ladder himself and defendants submitted photographs and a video recording from their expert safety that depicted placing the ladder directly under the work site and standing on it. Further, the Court noted plaintiff conceded that other safety devices were available at the site, and that he asked if they were available before using the ladder. Thus, the Court held defendants established as a matter of law that the ladder was an adequate safety device and plaintiff’s own conduct was the sole proximate cause of his injuries. In opposition, plaintiff relied only on speculation from his transcript, which were rejected by the Court.
Justice Whalen’s dissent would affirm the trial court’s decision as defendants failed to establish as a matter of law that plaintiff improperly placed the ladder “for no good reason” in light of his testimony that he attempted to place the ladder directly underneath the overhang of the roof where he was to work, but the size of the window located below his work area prevented him from resting the ladder against the building itself, and he was concerned that resting the ladder against the window while he performed his work might damage the window.
Thus, the dissent would find it cannot be concluded as a matter of law that plaintiff knew the ladder could be placed against the building directly underneath his work area at an appropriate angle without damaging the window, but nonetheless chose not to do so.
PRACTICE POINT: Eureka! The Fourth Department, in a move away from their prior decisions, has held that the plaintiff who himself places his ladder in an unsafe manner without good cause is the sole proximate cause of his fall and injury. This is a real change, an important case that you will see cited across the state.
Indemnity Issues in Labor Law (SEP)
With no liability to plaintiff, the third party actions for contractual indemnity were dismissed as moot.
Stiegman v Barden & Robeson Corp.
June 29, 2018
Appellate Division, Fourth Department
Plaintiff, an employee of DJ Gerling, was allegedly injured when the staircase leading to the basement of a home under construction collapsed. The Gribbens owned the home, and B & H was retained to install the subject basement staircase. The Barden & Robeson Corporation, individually and d/b/a Barden claimed to be the "project manager" and "supplier of material" for the home construction.
The trial court granted plaintiff’s motion for leave to reargue its prior deniel of his motion for partial summary judgment on his Labor Law § 240(1) claim, granted cross-motions to dismiss the §§ 240(1) and 241(6) claims, granted B & H's cross-motion and denied Barden's cross-motion on the § 200 and common-law negligence claims, and denied both cross-motions with respect to the common-law negligence claim.
The Fourth Department affirmed the trial court’s finding, upon reargument, that there is a triable question of fact whether the subject stairs were temporary or permanent. Although there is evidence that the staircase was temporary because the Gibbens intended to replace it at some point in the future, the Court found issues because the original plans for the home along with the new home selection sheet referred to the stairs as knock-down stairs and would be installed and that the “owner may purchase finished stairs later”.
As for Barden, the Court found issues of fact whether it had the authority to supervise or control the injury-producing work and thus whether it may be liable as a general contractor or an agent of the owner. Similarly, the Court held plaintiff failed to establish Barden’s liability that as a matter of law, Barden was the general contractor or the agent of Gibbens.
The Court also reversed as to B & H’s motion to dismiss the Labor Law claims against it since it demonstrated that it had completed its work and was not at the work site at the time of plaintiff’s injury; and that as a subcontractor, it did not have the authority to supervise or control the work that caused plaintiff’s injury.
PRACTICE POINT: The critical point to remember here is that a fall on permanent stairs is not a labor law case but a fall from temporary stairs, considered to be the equivalent of a scaffold, is a labor law case.
Labor Law § 200 and Common-Law Negligence (VCP)
The Fourth Department affirmed as to B & H’s claims because a subcontractor “may be liable for negligence where the work it performed created the condition that caused plaintiff’s injury even if it did not possess any authority to supervise and control plaintiff’s work or work area”. Further, the Court held B & H failed to meet its burden of establishing that it did not create the condition that caused plaintiff’s injury.
LABOR LAW § 241(6) REGULATIONS; SPECIFIC OR GENERAL (MAS)
|
12 NYCRR § 23-1.12 – Protection in Construction, Demolition and Excavation Operations; General Provisions; Guarding of power-driven machinery; Power driven saws – Table circular saws. |
Regulation § 1.12(c)(3), requires that table circular saws used for ripping be provided with spreader fastened so as to prevent material kickback, is sufficiently specific to support a Labor Law § 241(6) claim. |
Glab v 110-118 Riverside Tenants Corp., 262 AD2d 604, 691 NYS2d 903 (2d Dept 1999); Ortega-Estrada v 215-219 West 145th Street LLC, 118 AD3d 614, 987 NYS2d 845 (1st Dept 2014). |
Glab held Δ established reg did not apply to π’s accident.
Ortega-Estrada held π entitled to partial summary judgment on issue of liability by demonstrating Δ violated reg as he was injured while using a table saw that was not equipped with blade guard or spreader, regardless whether π was sole witness. |
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