Labor Law Pointers - Volume XIII, No. 4

Volume XIII, No. 4
Wednesday, March 6, 2024

Bazdaric v Almah Partners LLC
February 20, 2024
Court of Appeals

 
Plaintiff was injured on a renovation project worksite when he slipped on a plastic covering on an escalator in an area he was assigned to paint. The trial court granted plaintiffs summary judgment on the Labor Law § 241(6) claim based on violations of Industrial Code (12 NYCRR) §§ 23-1.7(d) and (e)(1). A majority of the First Department reversed and granted defendants' cross-motion for summary judgment dismissing the Labor Law § 241(6) claim, with a two-Justice dissent (203 AD3d 643 [1st Dept 2022]).
 
 Labor Law § 241(6) (TPW)

The First Department reversed the First Department’s decision, granted summary judgment to plaintiff and denied defendant’s motion. Plaintiff established that the covering was a slipping hazard that defendants failed to remove in violation of Industrial Code §§ 23-1.7(d), rendering them liable under Labor Law § 241(6). The Court’s majority rejected defendants’ argument that the plastic covering is not a “foreign substance” for purposes of the Industrial Code because whether this particular covering was a such a substance depends on its relation to the work area where plaintiff was assigned to work, and the covering’s uniform properties. As to its relation to the work area, the Court held the plastic covering was not a component of the escalator and was not necessary to the escalator’s functionality. In fact, the Court noted that it would have been impossible to operate the escalator if covered with plastic. Therefore, the Court found that it was, by definition a foreign substance to the escalator.
 
More interestingly (because we watched the oral argument on this issue), the Court rejected defendants’ argument that the plastic covering was integral to the work, as that defense only applies when the dangerous condition is inherent to the task at hand, and not, as is the case here, when a defendant or third-party’s negligence created a danger that was unavoidable without obstructing the work or imperiling the worker.
 
Justice Garia’s concurrence agrees with the majority’s decision to deny defendants’ motion for summary judgment but makes clear that to qualify as a sufficiently specific regulation, § 1.7(d) requires that a foreign substance cause the slippery condition referred to in the first sentence of that provision. Although a “close question”, Justice Garcia agrees that the plastic sheeting was a “foreign substance” under the regulation; however, he does not agree that any substance “not part of the escalator” would qualify as such. He would instead hold that plastic sheeting shares the same qualities that make “ice, snow, water and grease” hazardous when introduced into a qualifying work area.
 
 

Diaz v P&K Contr., Inc.
February 1, 2024
Appellate Division, First Department

 
Plaintiff was a steel construction laborer who fell and was injured while unloading a truck at a jobsite. He testified that a Steel Construction supervisor instructed him to use a ladder to get on top of a stack of sidewalk shed posts inside a flatbed truck and pass the material to other Steel Construction workers below. As he was passing down the material, the stack he was standing on shifted beneath him, causing him to lose balance and fall 3-4 feet onto material inside the truck.
 
The trial court granted TDX's motion for summary judgment dismissing the complaint as against it, granted P&K’s motion for summary judgment dismissing the Labor Law §§ 200, 241(6), as predicated on violations of Industrial Code §§ 23-1.7(f), 23-2.1(a)(1) and 23-2.3(c), and common-law negligence claims as against it, and denied P&K's motion for summary judgment on its common-law indemnification and contribution claims against Steel Construction.
 
 Labor Law § 241(6) (TPW) 

The First Department affirmed the trial court’s decision granting summary judgment dismissing plaintiff's Labor Law § 241(6) claim predicated on alleged violations of Industrial Code §§ 23-1.7(f), 23-2.1(a)(1) and 23-2.3(c). First, Industrial Code § 23-1.7(f) was deemed inapplicable as plaintiff did not allege that he was injured due to the failure to provide a safe stairway, ramp, or runway to access different working levels. 
 
Industrial Code § 23-2.1(a)(1) was likewise inapplicable as it concerns storage of materials, yet plaintiff was allegedly injured while unloading the materials from a flatbed truck. Lastly, the Court found that Industrial Code § 23-2.3(c) was inapplicable, as there were no allegations that the materials which allegedly shifted and caused plaintiff to fall were being hoisted at the time.
 
 Labor Law § 200 and Common-Law Negligence (ESB)

The First Department held that trial court properly granted both TDX and P&K's motions for summary judgment for dismissal of plaintiff's Labor Law § 200 claim. In this “means and methods” case, both parties established that they only had general supervisory authority over the worksite and did not control the manner in which the injury-producing work was being performed.
 
 Indemnity Issues in Labor Law (PCSM)

The First Department held that P&K's motion for summary judgement seeking common-law indemnification against Steel Construction was properly denied.
 
 

Devlin v AECOM
February 8, 2024
Appellate Division, First Department

 
Plaintiff fell through an insufficiently guarded opening in the floor of the worksite when its unsecured plywood covering shifted as he walked over it. The trial court denied plaintiffs' motions for summary judgment on their Labor Law §§ 240(1) and 241(6) claims against defendants CUNY, Stalco, AECOM, and Gramercy Group, granted AECOM's motion for summary judgment dismissing plaintiffs’ complaint against it, granted Gramercy's motion for summary judgment dismissing plaintiffs’ Labor Law claims against it but denied Gramercy’s motion as to plaintiffs’ common-law negligence claim, denied CUNY and Stalco's motion for summary judgment dismissing plaintiffs' Labor Law § 241(6) claim against them and on their contractual indemnification claims against Gramercy and AIM Builders.
 
 Labor Law § 240(1) (MAS)

The First Department reversed the trial court and granted plaintiffs' motion for summary judgment under Labor Law § 240(1) against CUNY and Stalco. The argument that plaintiff should not have been working in that area is contradicted by the scope of his employer’s contract, photographs, and his coworker’s testimony. In any event, it is irrelevant and would constitute, at most, comparative negligence, which is not a defense under 240(1). Their claim that an unattributed statement in plaintiff’s C-3 accident report that he was lifting wood at the time of the accident implies that he intentionally removed the plywood himself does not create a question of fact.
 
The Court affirmed dismissal of plaintiffs’ complaint against AECOM, finding that they were not a statutory agent for purposes of the Labor Law. The Court also correctly dismissed plaintiffs’ Labor Law claims against Gramercy on similar grounds.
 
PRACTICE POINT: Defendants’ argument that there was no statutory violation in that the opening, which had no railings or other affixed barricades, was adequately protected by the sheet of plywood, is unavailing and did not create a question of fact as to whether defendants breached their nondelegable duty to furnish or erect, or cause to be furnished or erected, safety devices in a manner that gave her proper protection from gravity-related risks (i.e., the insufficiently guarded opening in the floor of the worksite).
 
 Labor Law § 241(6) (TPW)

The First Department determined that plaintiffs' Labor Law § 241(6) claim was academic considering the trial court’s decision to grant of partial summary judgment under Labor Law § 240(1).
 
 Labor Law § 200 and Common-Law Negligence (ESB)

The First Department held that the trial court correctly dismissed plaintiffs' complaint against AECOM, finding no evidence that it was negligent. The Court  also determined that the trial court correctly dismissed plaintiffs' Labor Law claims against Gramercy on similar grounds. It had not been on site for weeks, and its demolition contract with Stalco specifically exempted it from providing fall protection or temporary barriers. Further, Gramercy could not be held liable merely because it created the opening into which plaintiff fell where that work was the very thing the subcontract obligated it to do.
 
 Indemnity Issues in Labor Law (PCSM)

The First Department held that conditional indemnification was, indeed, warranted on CUNY’s indemnity claim against AIM. The indemnity clause was triggered in that the accident arose out of AIM's operations and the clause contained the requisite savings clause to avoid violation of General Obligations Law § 5-322.1. However, the Court held that conditional contractual indemnification in favor of Stalco against AIM was not warranted as there was evidence that Stalco may have been the sole proximate cause of plaintiff's accident. The First Department found that the trial court correctly denied CUNY and Stalco summary judgment on their contractual indemnification claims against Gramercy as the indemnity clause in Gramercy's contract was triggered by negligence on Gramercy's part of which there was none.
 
 

Rodriguez v Fawn E. Fourth St. LLC
February 8, 2024
Appellate Division, First Department

 
Plaintiff was injured when a hot water heater fell onto him. Defendants own and manage the premises, where plaintiff was working as a plumber’s assistant for nonparty Genuine Plumbing, when the accident occurred. At the time of the accident, Genuine Plumbing had been hired to replace the hot water heater on the premises. The trial court denied plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim and granted defendants' motion for summary judgment dismissing the complaint against them.
 
 Labor Law § 240(1) (MAS)

The First Department reversed the trial court’s decision to the extent of denying defendants’ motion for summary judgment under Labor Law § 240(1) and otherwise affirmed. Plaintiff’s evidence raised triable issues whether the day-long work that involved multiple workers to replace a 6-foot tall, 30-inch diameter water heater, weighing, by some estimates, 700 pounds, constituted a repair within the meaning of 240(1), as distinguished from routine maintenance. Defendants did not offer proof, except from conclusory statements, as to the cause of the water heart’s breakdown other than that the mechanism was leaking and no longer functioning. The Court also found triable issues were also raised by plaintiff as to whether an elevation differential existed such that the weight of the water heater, as it was strapped to the hand truck, created a hazardous gravitational force against which devices enumerated in the statute were designed to guard.
 
PRACTICE POINT: In a “falling object” case, the injured must establish that, at the time the object fell, it was being hoisted or secured, or required securing for purposes of the undertaking. Here, the First Department found triable issues as to whether an elevation differential existed such that the weight of the water heater, as it was strapped to the hand truck, created a hazardous condition which devices enumerated in Labor Law 240(1) protect against.
 
 Labor Law § 241(6) (TPW)

The First Department held that Plaintiff's Labor Law § 241(6) claim was correctly dismissed, as Plaintiff did not offer evidence which would support a basis to find a violation of a specific applicable Industrial Code provision, or that a violation, if any, had proximately caused his injury.
 
 

Weidtman v Tremont Renaissance Hous. Dev. Fund Co., Inc.
February 13, 2024
Appellate Division, First Department

 
At the beginning of the day of his accident, plaintiff and his coworker, both employed by NYC Crane, received instructions for plaintiff to operate a crane for the purpose of hoisting concrete planks to be installed in a new building under construction, while supervised by another worker. Instead, the supervisor operated the crane while plaintiff signaled to him, either because no other signal person was provided or because of purported communication difficulties with another company's signal person. While performing this work, plaintiff was struck by a plank being hoisted, causing him to trip on a loose plank on the ground and fall off his working surface into the basement level.
 
In a prior order, which was not appealed, the trial court granted plaintiff's motion for summary judgment on the Labor Law § 240(1) claim against Tremont/Joy Defendants, Urban, and NYC Crane, finding as a matter of law that he “was not provided with a safety line and harness or some other enumerated safety device to prevent his fall from an unguarded elevated edge.” The trial court found that plaintiff "was not 'plainly acting outside the scope of his employment' taking into consideration he was instructed by his [f]oreman . . . as part of his training as a crane operator to act as signalman.” The trial court also denied Urban’s motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims as against it, and summary judgment on its contractual indemnification claims against Newburgh and NYC Crane, denied the cross-motion of Tremont, Mastermind, and Joy (collectively, Tremont/Joy Defendants) for summary judgment dismissing the common-law negligence claim against them, and for summary judgment on their contractual and common-law indemnification and contribution claims against Urban, Newburgh, and NYC Crane and Tremont/Joy Defendants' claim for breach of a contractual obligation to procure insurance against Newburgh and NYC Crane, and granted Newburgh and NYC Crane summary judgment dismissing Tremont/Joy Defendants' contractual indemnification claims against them. 
 
 Labor Law § 200 and Common-Law Negligence (ESB)

The order on appeal stated that the Labor Law § 200 claim, but not the common-law negligence claim, as against Tremont/Joy Defendants was dismissed in the absence of opposition, yet the trial court indicated that there were issues of fact as to both claims against those defendants. The First Department determined that the trial court should have dismissed the common-law negligence claim against Tremont and Mastermind, since plaintiff's accident arose solely from the means and methods of the work, and Tremont and Mastermind established that they did not supervise or control the work.

The First Department also held that the trial court should have denied Joy's motion for summary judgment dismissing the common-law negligence claim against it, since there are issues of fact as to whether Joy actually supervised and controlled the installation of fall protection. The court made note that plaintiff did not oppose the Tremont/Joy Defendants' appeal, but the issue of their negligence was relevant to indemnification issues on appeal.  It further held that the trial court properly denied Urban's motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims as against it, in light of conflicting evidence as to whether plank installation workers involved in the accident were employed by Urban or Newburgh.

 Indemnity Issues in Labor Law (PCSM)

The First Department found that the trial court should have conditionally granted summary judgment in favor of Tremont/Joy Defendants’ contractual indemnification claims against Urban and Urban's contractual indemnification claims against NYC Crane and Newburgh. The contractual provisions broadly requiring indemnification for claims arising from the proposed indemnitors' work were triggered by plaintiff's accident while employed by NYC Crane and acting as a signal person on behalf of Newburgh, while those companies were performing their work as sub-subcontractors of Urban. The Court further noted that the plank struck plaintiff when it bounced off a cable installed by Newburgh.
 
Tremont/Joy Defendants are not third-party beneficiaries of indemnification provisions in subcontracts that did not mention them and contracts that they did not sign.
 
The Court also found the common-law indemnification and contribution claims of Tremont/Joy Defendants as against Urban to be academic considering the conditional grant of summary judgment in favor of Tremont/Joy Defendants' contractual indemnification claims against Urban. Additionally, the Court found that the issue of fact as to Joy's negligence precludes summary judgment on its common-law indemnification and contribution claims.
 
The Court further held that the trial court correctly denied summary judgment in favor of the common-law indemnification and contribution claims asserted by Tremont and Mastermind against Newburgh and NYC Crane, since there were issues of fact as to their negligence. Specifically, there was conflicting evidence as to whether the plank installation was performed by Newburgh or Urban, and Newburgh's responsibility to provide a signal person was also implicated in the accident. Moreover, there was evidence that NYC Crane exercised supervisory control over the means and methods of plaintiff's work in that plaintiff's supervisor, who was also employed by NYC Crane, permitted the arrangement in which plaintiff took over for the signal person despite the absence of any fall protection in the area.
 
Ultimately, the Court concluded that the issues of fact as to Newburgh's negligence precluded its request for the Court to search the record and grant summary judgment dismissal of the common-law indemnification claims against it.
 
Lastly the Court held that the trial court should have granted Tremont/Joy Defendants' claims against NYC Crane and Newburgh for breach of their contractual obligations to procure insurance and the insurance policies they submitted did not include some of the requisite coverage.
 
 

Demari Servs. Inc. v Queens Medallion Brokerage Corp.
February 15, 2024
Appellate Division, First Department

 
Plaintiffs sued Scottish American and Queens Medallion for damages related to the denial of excess insurance coverage in the underlying Labor Law and negligence action, Luis Guerra v Century Apartments Assoc., pending in Queens County Supreme Court.  In that underlying action, plaintiff fell off a scaffold during façade work done by plaintiff Demari Services, Inc. on the building owned by plaintiff Century. The trial court granted the separate motions of Scottish American and Queens Medallion to dismiss the complaint. 
 
 Indemnity Issues in Labor Law (PCSM)  

The First Department held that the trial court should not have dismissed plaintiffs' tort claims solely on the ground that the action was premature. Although plaintiffs had yet to sustain any injury in the absence of a judgment or settlement in the underlying Guerra action, a justiciable controversy exists where a plaintiff alleges “potential liability” that could implicate excess insurance coverage, even before an award of damages or settlement.
 
However, the First Department held that the trial court was correct in dismissing the breach of contract claims, as the plaintiffs' continued payment of premiums on preexisting policies could not constitute consideration for a new contract between plaintiffs and defendant insurance. Although in April 2017, Queens Medallion and Scottish American exchanged emails relating to a residential work exclusion, those emails did not make any changes to the policies already in effect. Additionally, Queens Medallion and Scottish American had confirmed in the emails, which were forwarded to Century, that the exclusion was not applicable to the work being performed by plaintiff.
 
For similar reasons, the First Department held that the trial court properly dismissed plaintiffs' causes of action for promissory estoppel. Plaintiffs argued that they relied on a promise made in the April 2017 emails that work was covered by the excess insurance policy. However, the policy was executed in February 2017—two months prior to the April 2017 email promise. As such, the First Department held that the work contract refuted the allegations related to the promissory estoppel causes of action.
 
 

Melendez v Truffles II, LLC
February 15, 2024
Appellate Division, First Department

 
Plaintiff, a handyman, arrived at work at the Truffles building in Manhattan. The Truffles building was owned by Truffles II, LLC, which, in turn, was owned by Parker Management. On the day of the alleged fall, plaintiff was told to ready apartment 209 for new tenants. Plaintiff testified that he was given a scraper, a spatula, a cart, a ladder, and plaster. These tools were consistent with plaintiff's testimony that he was asked to spackle or plaster holes and shave or scrape the door.
 
Once at the apartment, plaintiff set up the ladder, checked that it was steady and locked, and began scraping a wooden door in the closet of the bedroom. While he was scraping the door, he felt and saw the ladder move sideways, which caused him to fall and hit his side and head on the metal bar in the closet. The trial court denied defendant's motion for summary judgment dismissing plaintiff's Labor Law § 240(1) claim and granted plaintiff's cross-motion for partial summary judgment on his Labor Law § 240(1) claim. 
 
 Labor Law § 240(1) (MAS)

The First Department reversed the trial court’s decision to the extent of denying plaintiffs' cross-motion under Labor Law § 240(1) and otherwise affirmed. The protections of Labor Law 240(1) are limited to the “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.” It was not established, as a matter of law, that plaintiff was performing work at the time of his accident. The proof submitted on the motion and cross-motion raised questions of fact as to the scope, regularity, and complexity of the work in which plaintiff was engaged at the time of his accident, precluding summary judgment in either party’s favor.
 
PRACTICE POINT: We analyze every Labor Law case using the same four criteria: (1) appropriate plaintiff; (2) appropriate defendant; (3) appropriate project; and (4) elevation-related/gravity-related risk. In this case, neither side is entitled to summary judgment on the Labor Law § 240(1) claim because the record presents a triable issue as to the scope, regularity, and complexity of plaintiff’s injury-producing work.
 
 

York v Tappan Zee Constructors, LLC
February 15, 2024
Appellate Division, First Department

 
Plaintiff, while employed by LBE, was taken by boat to a worksite at the Tappan Zee Bridge where TZC was the general contractor. The boat docked at one of two barges on the water. Plaintiff was injured when he attempted to cross from one barge to another without a gangway and slipped on an alleged icy condition. Plaintiff almost fell into the two-to-three-foot gap between the barges to the water 8 to 12 feet below but was able to grab onto another worker walking in front of him, who then pulled him onto the barge. Plaintiff was unable to see the alleged icy condition before he fell because it was dark. There was artificial lighting on the piers, but not on the barges.
 
The trial court denied plaintiff’s motion for summary judgment under Labor Law § 240(1), granted TZC's motion for summary judgment dismissing the Labor Law § 240(1) claim and denied its motion seeking dismissal of the Labor Law §§ 241(6), 200 and common-law negligence claims, granted plaintiff's motion for summary judgment on the Labor Law § 241(6) claim predicated on a violation of Industrial Code § 23-1.7 (d) and granted TZC's cross-motion for summary judgment on its contractual indemnification claim against LBE.
 
 Labor Law § 240(1) (MAS)

The First Department unanimously reversed the trial court’s decision to grant plaintiff’s motion under Labor Law § 240(1) and to deny TZC’s cross-motion on that claim. Although plaintiff’s injuries resulted from his slip and fall on an alleged icy condition on the barges, which were at the same level, he fell while struggling to avoid the elevation-related risk of falling into the water. Moreover, the site safety plan required a gangway to be in place, and the absence of a gangway was a proximate cause of the accident. In opposition, the Court held that TZC failed to raise an issue of fact as to whether plaintiff was recalcitrant or the sole proximate cause of his accident.
 
PRACTICE POINT: An injured worker may be the sole proximate cause of his or her own injuries when he or she (1) was provided with appropriate and available safety devices; (2) he or she knew the safety devices were available and was expected to use them; (3) but, for no good reason, chose not to use or misused the safety devices; and (4) had he or she not made that choice, the injuries would not have occurred. In this case, TZC failed to establish that appropriate safety equipment was available to plaintiff, and that he chose, for no good reason, not to use it.
 
 Labor Law § 241(6) (TPW)

The First Department held that plaintiff's Labor Law § 241(6) claim was academic considering it granted plaintiff partial summary judgment under Labor Law § 240(1).
 
 Labor Law § 200 and Common-Law Negligence (ESB)

The First Department determined that the trial court properly denied TZC's motion to dismiss the Labor Law § 200 and common-law negligence claims against it, based on a dangerous condition on the site, not on the method or materials used in the work. TZC failed to meet its initial burden of demonstrating an absence of material issues of fact as to whether it had constructive notice of the icy condition. The First Department declined to reach TZC's contention that the condition was not visible and apparent, which is a factual argument improperly raised for the first time on appeal. In addition to these findings, the Court found that there was evidence that ice formed on the barges during the winter.
 
 Indemnity Issues in Labor Law (PCSM)

The First Department held that the trial court should have denied TZC summary judgment on its contractual indemnification claim against LBE as premature, notwithstanding the broad indemnification language, and there were issues of fact as to whether TZC had notice of the icy condition or the lighting condition on the barges and could have remedied the conditions.

 

DaSilva v Toll GC LLC
February 20, 2024
Appellate Division, First Department

 
Plaintiff, while employed by Advanced Contracting, was instructed by his foreman to bring a staircase mold, weighing 200 pounds, from the fifth floor to the sixth floor. Plaintiff's foreman refused plaintiff's request to use a hoist to transport the staircase mold, and, instead, instructed him to manually transport the mold up a permanent concrete stairway. While plaintiff and his foreman were carrying the staircase mold up the stairway, they hit a vertical support pole in the stairway several times as they tried to maneuver up around it, causing plaintiff to slip on concrete debris and fall down the stairs.  
 
The trial court denied plaintiff's motion for summary judgment as to liability on his Labor Law § 240(1) claim and Labor Law § 241(6) claim predicated on a violation of Industrial Code § 23-1.7 (f) against defendants.
 
 Labor Law § 240(1) (MAS)

The First Department unanimously reversed the trial court to grant plaintiff’s motion under Labor Law § 240(1). Contrary to defendant’s contention, the fact that the staircase on which plaintiff fell was constructed as a permanent structure does not remove it from the reach of § 240(1). Because plaintiff’s foreman instructed him to work on an elevated work platform – namely, the stairway – defendants were required to provide plaintiff with an adequate safety device to carry the staircase mold up the stairs. Defendants failed to do so, and the absence of a safety device was a proximate cause of plaintiff’s injuries. At the time of the fall, plaintiff was following his foreman’s instructions to manually carry the mold up the stairs, and thus, he was not the sole proximate cause of the accident.
 
PRACTICE POINT: The competing expert affidavits did not preclude summary judgment to plaintiff as the experts did not dispute whether a safety device was required and only differed as to whether the hoist was available.
 
 Labor Law § 241(6) (TPW)

The First Department held that plaintiff's Labor Law § 241(6) claim was academic considering it granted plaintiff partial summary judgment on under Labor Law § 240(1).
 
 

Ortiz v City of New York
February 29, 2024
Appellate Division, First Department

 
Plaintiff fell four feet as he attempted to descend from an outrigger platform on a scaffold by climbing down the cross bracing under the platform. The trial court, as relevant here, denied plaintiff's motion for summary judgment on his Labor Law § 240 (1) claim.
 
 Labor Law § 240(1) (MAS)

The First Department unanimously reversed the trial court and granted plaintiff's Labor Law § 240(1) as plaintiff established that defendants failed to provide a ladder that was supposed to be attached to the platform, and that such failure was a proximate cause of the accident. In opposition, the Court rejected defendants’ sole proximate cause argument as neither the testimony nor affidavit, which suggested the availability of ladders, indicates that plaintiff “knew he was expected to use them but for no good reason chose not to do so.” The detachable ladder that the superintendent saw was used as a means of access to different floors of the scaffold, and there was no evidence that the detachable ladder was a suitable alternative means of access for the outrigger platform. There was no evidence that plaintiff had been instructed to use, or knew he was expected to use the detachable ladders.
 
PRACTICE POINT: Defendants’ evidence failed to raise an issue of fact as to the sole proximate cause defense because they could not prove that plaintiff had been instructed to use, or knew he was expected to use, the available detachable ladders to descend from the outrigger platform, but and for no good reason chose not to do so. Remember that if one prong of the sole proximate cause defense is missing, then it is not a viable defense.
 
 

Moran v Trustees of Columbia Univ. in the City of N.Y.
February 21, 2024
Appellate Division, Second Department

 
Plaintiff was injured when he fell off a ladder while working for his employer, Blue Water. Blue Water was the general contractor on a project to renovate a building owned by Columbia. Blue Water subcontracted with Lemark to perform work on the project. 
 
The trial court granted plaintiff's motion for summary judgment on Labor Law §§ 240(1) and 241(6) claims and denied the cross-motion of Blue Water for summary judgment dismissing the amended complaint, the third-party complaint, and all crossclaims asserted against it. It also denied the cross-motion of Columbia for summary judgment on the third-party claim for contractual indemnification against Blue Water. Upon reargument, it adhered to the determination in the prior order, granting plaintiff's motion for summary judgment on the Labor Law §§ 240(1) and 241(6) claims against Blue Water and denying the cross-motion of Blue Water for summary judgment dismissing the amended complaint, the third-party complaint, and all cross-claims asserted against it and denied the cross-motion of Columbia for summary judgment on the third-party claim for contractual indemnification against Blue Water.
 
 Labor Law § 240(1) (MAS)

The Second Department held that plaintiff failed to demonstrate his entitlement to summary judgment against Lemark on his claims under Labor Law § 240(1) and 241(6). While plaintiff alleged that he was injured when he fell from a defective ladder, the record contained conflicting evidence as to the way the accident happened, including whether a ladder was involved in the accident at all. Thus, plaintiff failed to eliminate triable issues of fact as to whether violations of Labor Law 240(1) and 241(6) occurred and whether such violations proximately caused the accident.
 
The Court also held that Lemark failed to demonstrate that it was not an agent of the general contractor, Blue Water, for purposes of liability under Labor Law 240(1) and 241(6). Lemark failed to establish that it lacked the ability to supervise and control the work that brought about plaintiff’s alleged injuries. Instead, the Court found triable issues of fact as to the role Blue Water and Lemark played in the renovation work, which entity was supervising plaintiff, and which entity supplied the ladder that he alleged caused the accident.
 
PRACTICE POINT: Conflicting evidence as to the manner in which the accident happened usually will result in denial of summary judgment to all parties. Also, to hold a defendant liable as an agent of the general contractor or the owner for violations of Labor Law §§ 240(1) and 241(6), there must be a showing that it had the authority to supervise and control the injury-producing work. Here, Lemark could not show that it lacked the ability to supervise and control the work that brough about plaintiff’s alleged injuries.
 
 Labor Law § 200 and Common-Law Negligence (ESB)

The First Department determined that since there were triable issues of fact as to Lemark's authority to supervise and control the plaintiff's work and whether it supplied him with a defective ladder, Lemark failed to demonstrate its prima facie entitlement to summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action against it.
 
 Indemnity Issues in Labor Law (PCSM)

The Second Department held that, since triable issues of fact existed regarding Lemark's fault in the happening of the accident, the trial court, upon reargument, properly denied the branch of Lemark's cross-motion which was for summary judgment dismissal of the third-party complaint and all crossclaims asserted against it, and properly denied the branch of Columbia's cross-motion as to its third-party cause of action for contractual indemnification against Lemark.

 

Lostracco v Lewiston-Porter Cent. Sch. Dist.
February 2, 2024
Appellate Division, Fourth Department

 
Plaintiff commenced this Labor Law action against defendants-third-party plaintiffs (defendants), District as the owner of the property on which construction was being performed, Javen, as the general contractor, and, Campus, as the construction manager, seeking to recover damages for injuries he sustained after tripping on debris located on the project. Defendants subsequently commenced a third-party action against Empire, who had subcontracted with Javen to provide demolition services on the project. Defendants asserted third-party claims for contractual and common-law indemnification and breach of contract against Empire. The trial court denied Empire’s cross-motion for summary seeking dismissal of the third-party claims against it.
 
 Indemnity Issues in Labor Law (PCSM)

The Fourth Department pointed out that while there was no dispute that Empire did not direct, supervise, or control plaintiff's work; the claim for common-law indemnification was based upon the defendants’ assertion that Empire was negligent in failing to remove the demolition debris from the site, causing plaintiff's accident. The Court held that Empire's own submissions raised an issue of fact as to whether it was negligent in creating a dangerous condition by failing to remove the demolition debris. Further, the Court found that Empire's submissions also failed to demonstrate that the liability of Javen was anything but vicarious arising solely from its status as general contractor. Lastly, the Court found that Empire failed to meet its initial burden of establishing that Javen was negligent based on a dangerous condition on the premises, i.e., that Javen had control over the work site and had created or had actual or constructive notice of the dangerous condition.
 
As to Empire’s motion with respect to the breach of contract cause of action asserted against it, the Court found that the automatic-enrollment provision in Empire’s insurance policy, which made any organization an additional insured if Empire had a written contract with that organization, was insufficient to establish that Empire had fulfilled its obligations as Empire did not have any contracts with the District or Campus. Thus, the Court held that the lower court properly denied Empire’s motion.
 
 

Triest v Nixon Equip. Servs., Inc.
February 2, 2024
Appellate Division, Fourth Department

 
Plaintiff was injured at his employer's premises while unloading an alignment jack from the back of a van owned by defendant. Plaintiff's employer hired defendant to repair a defective alignment jack, and, at the time of the accident, defendant's principal was delivering a temporary replacement jack (loaner jack) to be used while defendant was performing its repair. Plaintiff and defendant's principal moved the loaner jack to the edge of the van bed in preparation for lifting the device onto a four-wheeled cart. Plaintiff was injured when he and defendant's principal lifted the loaner jack to place it onto the cart. The trial court denied plaintiff’s motion for partial summary judgment on the issue of liability on his Labor Law § 240 (1) claim and granted defendant's motion for summary judgment dismissing the complaint.
 
 Labor Law § 240(1) (MAS)

The Fourth Department affirmed the trial court’s decision to dismiss the plaintiff’s Labor Law § 240(1) claim on the ground that plaintiff was not subject to an elevation-related risk at the time of the accident. The extraordinary protections of the statute do not apply where a plaintiff is injured while unloading equipment from the bed of a vehicle.
 
PRACTICE POINT: The bed of a truck or similar vehicle does not constitute an elevation work surface for purposes of Labor Law 240(1).
 
 Labor Law § 200 and Common-Law Negligence (ESB)

The Fourth Department agreed with plaintiff that the trial court erred in concluding that defendant established that plaintiff was a volunteer who offered his services gratuitously when he helped defendant's principal lift the loaner jack. Rather, defendant's submissions themselves raised questions of fact, as they suggested that plaintiff was required to offer his services to defendant in unloading the loaner jack and that defendant had an understanding with plaintiff's employer that the latter's employees would be available for defendant's use when it delivered the loaner jack.
 

Vasquez v Gilbane Bldg. Co.
February 2, 2024
Appellate Division, Fourth Department

 
Plaintiff was injured at a construction site while working as a laborer and a 32-foot-long extension ladder that had been leaning against a wall fell, hitting her on the head and left shoulder. According to plaintiff, the ladder fell because of the ground vibrations created by the heavy demolition debris falling in the vicinity of the ladder. The trial court granted plaintiff's motion on her Labor Law 240(1) claim against defendants and denied defendants' cross-motions with respect to that claim. After a trial on the issue of damages, the jury returned a verdict awarding plaintiff $2.3 million. The trial court thereafter denied defendants’ motions to set aside the verdict pursuant to CPLR 4404.
 
 Labor Law § 240(1) (MAS)

The Fourth Department unanimously affirmed the trial court granting plaintiff's motion for summary judgment under Labor Law § 240(1) and rejected defendants’ contention that the statute is inapplicable as the ladder that fell on plaintiff was not in use at the time of the accident. Plaintiff testified that the ladder was a “heavy duty one” and the force of the ladder striking plaintiff caused her to fall to the ground. Thus, plaintiff established that she suffered a gravity-related injury and that, at the time the ladder fell, it was an object that “required securing for purposed of the undertaking.”
 
The Court also rejected defendants’ alternative argument that plaintiff’s motion should be denied because there are issues of fact whether she bumped into the ladder with a wheelbarrow and thus knocked it over and was the sole proximate cause of the accident. Plaintiff unequivocally denied bumping into the ladder; thus, the Court found that defendants merely speculate that plaintiff may have caused the accident through an assertion by a witness who did not personally observe the accident. Therefore, the Court held that defendants failed to raise an issue of fact as to whether plaintiff’s actions were the sole proximate cause of the accident.
 
The Court also rejected defendants’ motion to set aside the verdict because the amount awarded for future pain and suffering ($1.25M) and future loss of earnings and benefits (3256,150 for over 5 years) was neither unreasonable nor contrary to the weight of the evidence. The Court held that both awards did not deviate materially from what is considered reasonable compensation.
 
PRACTICE POINT: Even if defendants had submitted nonspeculative evidence that plaintiff bumped into the ladder, that would be insufficient to raise an issue of fact with respect to sole proximate cause because the record established that the ladder tipped over, in part, due to being inadequately secured, which only raised the issue of comparative negligence, which is never a defense under Labor Law § 240(1).
  

 New York Industrial Code Regulations (EDA)