Labor Law Pointers - Volume V, No. 9

Labor Law Pointers

 

Volume V, No. 9

Wednesday, July 6, 2016

 

A Monthly Electronic Newsletter Addressing

New York State Labor Law

Decisions and Trends

 

From the Editor:

 

Do you have a situation; we love situations. 

 

            So much for the hot summer doldrums from the courts, we have a full slate of cases for you this month.  We have been busy getting the analysis of these cases to you and there are some interesting ones.  The First Department decided that it is the use of a home, and not the configuration which determines if the home owner’s exception is applicable.  There are several other homeowner exception cases, including one that really bothers me where the second does not like the version of the use of the house put forth by the defendant so the court allows the case to continue to trial so a jury can see if the defendant seems truthful.  What about all of those unwitnessed accidents, doesn’t it seem those should also go to a jury to determine if the plaintiff is believable in his version of the accident?

 

            I can’t help myself when I am sent a great photo and need to share them.  I just do not think this is an adequate safety device.

 

photo 2

 

            There is also case law which holds that in most cases a person can’t be a safety device, which leads me to this picture which, if a person is not a safety device are we to assume that this future plaintiff is floating in air some 4 feet above the ladder?  Your opinions are requested.

 

photo 1

 

           

            Have a great July, keep those situations coming and remember that we are always available for training on whatever topic you may want training on.

 

 

 

David   

 

Adams HighC

 

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.

 

Del Carnen Diaz v Bocheciamp

June 2, 2016

Appellate Division, First Department

 

Plaintiff’s decedent died after falling to the ground while working on the roof of defendants’ house. The sole issue at trial was whether defendants’ house was a one- or two-family dwelling subject to the homeowners’ exemption under Labor Law §§ 240(1) and 241(6). The trial court denied defendants’ post-trial motion to set aside the jury verdict.

 

Labor Law § 240(1) (DRA)

 

The First Department restated the rule that the applicability of the homeowners’ exemption is determined by a “site and purpose” test which “hinges upon the site and the purpose of the work” and “must be employed on the basis of the homeowners’ intentions at the time of the injury.”

 

Here, the Court determined the evidence showed that, at the time of the accident, defendants’ house was a two-family residential home with a basement apartment, where a family friend lived, and three upper floors, which defendants shared with an adult child and two grandchildren. Defendants did not receive any rental income, and the Court rejected plaintiff’s argument that three families, two of which are related, lived in the home which is sufficient to raise an issue of fact as to whether the home was a three-family dwelling.

 

Therefore, the Court granted defendants’ motion to set aside the verdict because “there was no basis for the jury to conclude that the home was a three-family dwelling.”

 

PRACTICE POINT:  This case begs the question of why this was not decided by motion rather than by a jury verdict which was set aside by the court.  The court decided that it was the use of the dwelling, not the configuration, which determined the status of the home, a factor which the court eventually decided as a matter of law, to be decided by the court, and not a matter of fact to be decided by the jury.

 

 

McCrea v Arnlie Realty Co. LLC  

June 7, 2016

Appellate Division, First Department

 

Plaintiff allegedly was injured when an elevator fell on top of him inside a building owned by defendant Arnlie. The trial court denied Arnlie’s motion for summary judgment dismissing the Labor Law §§ 240(1) and 200 claims, and granted plaintiffs’ cross-motion for partial summary judgment on his Labor Law § 240(1) claim. The trial court also granted third-party defendant Brink’s motion to dismiss Arnlie’s common-law indemnification claim, and upon searching the record, granted plaintiffs’ partial summary judgment on their Labor Law § 200 claim.

 

Labor Law § 240(1) (DRA)

 

The First Department determined that at the time of the accident, plaintiff was engaged in “repair” work because the elevator’s safety shoes were not operating properly and the condition was an isolated event, unrelated to normal wear and tear. The Court determined the elevator was a “falling object” within the meaning of the statute even though it was not actually being hoisted or secured because it required securing for the purpose of plaintiff’s repair work.

 

Thus, the only issue remaining is whether plaintiff was the sole proximate cause of the injury and the Court found no indication that plaintiff refused or misused available safety equipment. In this regard, the Court noted the lack of evidence indicating plaintiff was aware of the “kill switch” located in the superintendent’s office. Accordingly, the Court held that any comparative fault of plaintiff, if any, with respect to the repair after triggering the dual relay switches, which were the only safety devices known to plaintiff, does not relieve Arnlie of absolute liability under the statute for failing to provide plaintiff with proper safety devices.

 

PRACTICE POINT:  There are two issues to consider here; first was the task at hand a repair or maintenance.  It is the fact that the elevator was broken, not operating properly in the words of the court, which establishes that this was a repair and not maintenance.  Second; there is no evidence that the plaintiff was directed or instructed to use a safety device, the kill switch, which is necessary to establish the sole proximate cause defense.  Coupled with a falling object which causes injury to the plaintiff we are left with a valid labor law 240(1) claim and thus absolute liability the defendants.

 

 

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

 

The First Department held the trial court properly denied Arnlie's motion regarding the Labor Law § 200 claim because there are issues of fact whether Arnlie had supervisory control over the means and methods of plaintiff’s work. For the same reason, the record does not warrant the grant of partial summary judgment in favor of plaintiffs on the 200 claim because although the service agreement between Arnlie and Brink provided that Arnlie would shut off the power to the elevator in the case of repair, the Court found triable issues whether the parties' course of conduct under this agreement waived or altered this provision. Plaintiffs also failed to conclusively establish Arnlie or its employees ever gave specific instructions to plaintiff.

 

 

 

Nerney v 1 World Trade Ctr. LLC  

June 7, 2016

Appellate Division, First Department

 

Plaintiff testified that he followed the normal procedure of adding slack to the rope in an attempt to free the rail from an obstruction, when he allegedly lost control of the rope and his leg became entangled in coiled rope on the platform upon which he working when the rope then lifted and dropped his leg. The trial court denied plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim.

 

Labor Law § 240(1) (DRA)

 

The First Department reversed, holding plaintiff established that a receptacle in which to place the coiled rope could have prevented the accident by allowing him to keep the rope separate from himself. The Court rejected defendants’ argument that such a device was available and plaintiff chose not to use it, instead coiling the rope on the platform because “there is no evidence that plaintiff received any … directions to use” a receptacle to store the coiled rope.

 

Plaintiff’s testimony showed that a device with a locking or braking mechanism should have been installed to prevent the rope from losing control, and the Court rejected defendants’ contention that the failure to provide an appropriate safety device was not practicable under the circumstances.

 

dPRACTICE POINT:  Here we are again reminded of the elements of a sole proximate cause defense.  There must be an appropriate safety device which is available to the plaintiff, which the plaintiff was instructed to use or that the plaintiff knew he was expected to use, which the plaintiff, for no good reason failed to use or misused.  Here the court found that the plaintiff was not instructed to use the appropriate and available safety device and thus the sole proximate cause defense failed. 

 

 

Bundo v 10-12 Cooper Sq., Inc.

June 16, 2016

Appellate Division, First Department

 

Plaintiff testified that debris flew into his eye while he was grinding stone without protective goggles. Although he was aware of the need for safety goggles when operating the grinder and asked his employer for goggles, he allegedly was told to begin work without them and that he would be provided with a pair as soon as possible.

 

As relevant here, the trial court denied plaintiff’s motion for partial summary judgment on his claim under Labor Law § 241(6) predicated upon 12 NYCRR § 23-1.8(a) (i.e., eye protection).

 

Labor Law § 241(6) (JAE)

The First Department reversed and granted summary judgment in plaintiff’s favor finding no evidence of culpable conduct.  The court emphasized that plaintiff asked his employer for goggles, but was told to begin work without them and that he would be provided with a pair as soon as possible.

Having granted plaintiff’s summary judgment under Labor Law § 241(6), the court found the common-law negligence claim moot. 

Morales v Avalon Bay Communities, Inc.

June 16, 2016

Appellate Division, First Department

 

Plaintiff’s employer, nonparty Urban, was retained by defendant to perform a “final cleaning” of the units of a new residential apartment building owned by defendant before tenants moved in. At the time of the accident, the construction was in the process of winding down with 90% of the units occupied.

 

Plaintiff climbed a three-foot stepladder to get onto the kitchen counter from which to clean the cabinets, starting with their tops which were over seven feet above the floor. When plaintiff put her foot on the top step of the ladder after finishing that task, she lost her balance and fell. The trial court denied plaintiff’s motion for partial summary judgment on her Labor Law §§ 240(1) and 241(6) claims, and granted defendant’s cross-motion to dismiss the complaint.

 

Labor Law § 240(1) (DRA)

 

The First Department affirmed, concluding the trial court properly held that plaintiff was not engaged in “cleaning” within the meaning of the statute at the time of her accident by correctly applying the factors set forth in Soto v J. Crew Inc.

 

dPRACTICE POINT:  The Court of Appeals in Soto defined the types of cleaning the statute was intended to protect.  They exclude cleaning if “the task: (1) is routine, in the sense that it is the type of job that occurs on a daily, weekly or other relatively-frequent and recurring basis as part of the ordinary maintenance and care of commercial premises; (2) requires neither specialized equipment or expertise, nor the unusual deployment of labor; (3) generally involves insignificant elevation risks comparable to those inherent in typical domestic or household cleaning; and (4) in light of the core purpose of Labor Law § 240 (1) to protect construction workers, is unrelated to any ongoing construction, renovation, painting, alteration or repair project. Whether the activity is "cleaning" is an issue for the court to decide after reviewing all of the factors. The presence or absence of any one is not necessarily dispositive if, viewed in totality, the remaining considerations militate in favor of placing the task in one category or the other.”

This is important to remember, or at least know where to look it up quickly (In reality you need only remember my phone number (716-553-6901) and I will send it to you, seems like a situation to me.)

 

 

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

 

The First Department held the trial court properly dismissed the claims for common-law negligence and Labor Law § 200 because the evidence that defendant exercised general oversight over plaintiff's work was insufficient to establish that defendant exercised supervisory control over the means or methods of the work.

 

Lombardi v Structure Tone, Inc.

June 21, 2016

Appellate Division, First Department

 

Plaintiff, forty-one years old at the time of his accident, was allegedly injured when he stepped on a piece of electrical conduit debris on defendants Structure Ton and Cowtan & Tout’s work site.  The jury found defendants liable for plaintiff’s injury under Labor Law § 241(6) based upon a violation of Industrial Code regulation (12 NYCRR) § 23-1.7(e)(2) (tripping and other hazards in work areas). The jury apportioned fault as 65% to defendants and 35% to plaintiff.

 

Plaintiff sustained an evulsion fracture of the fifth metatarsal for which he underwent ORIF shortly after the accident, and had Type 1 diabetes which was a substantial aggravating factor impeding and prolonging his ability to heal.  He also underwent skin debridements and twenty treatments in a hyperbaric chamber. An MRI revealed “tendinosis of the peroneal brevis”, a chronic problem resulting from healing and scar tissue. Plaintiff also continued to exhibit long-term instability and weakness of his right foot, which prevented him from working in construction.

 

Plaintiff was awarded damages in the amount of $1,361,000, which consisted of $400K past pain and suffering; $400K past lost wages; $425K future pain and suffering and $136K future lost wages. The trial court granted defendants’ motion to set aside the jury verdict on damages and directed a new trial unless plaintiff agreed to accept and defendants to pay $125K, and denied defendants’ motion seeking to set aside the verdict as to their liability under Labor Law § 241(6).

 

Labor Law § 241(6) (JAE)

  

The First Department held the trial court correctly determined there was no basis for setting aside the verdict as to defendants’ liability under Labor Law § 241(6) because the verdict was based on legally sufficient evidence and not against the weight of the evidence.

 

The Court also affirmed the past and future pain and suffering awards because as modified, they did not deviate materially from reasonable compensation. The Court held that under the circumstances, the award of $400K for past pain and suffering and a reduced award of $370K for future pain and suffering did not deviate from what would be considered reasonable compensation.

 

However, the Court concluded there was no basis for the award of past and future lost earnings because the evidence showed plaintiff has been working and advertising for work in a self-employed capacity.

 

 

 

Hill v City of New York  

June 23, 2016

Appellate Division, First Department

 

Plaintiff allegedly was injured when he fell from a ladder while working on premises owned by the City, with defendant C&C Meats as the tenant-in-possession.  Plaintiff was installing pipes for an overhead refrigerator when the ladder he was using wobbled, causing him to fall. The trial court denied plaintiff’s motion for partial summary judgment on his Labor Law §§ 240(1) and 241(6) claims.

 

Labor Law § 240(1) (DRA)

 

“Where a ladder is offered as a work-site safety device, it must be sufficient to provide proper protection. It is well-settled that the failure to properly secure a ladder, to ensure that it remains steady and erect while being used, constituted a violation of Labor Law § 240(1).”

 

The First Department held that at both his deposition and 50-h, plaintiff consistently testified he fell from the sixth rung of an eight-foot ladder after it unexpectedly wobbled. C&C Meats’ owner corroborated plaintiff’s account by testifying “I saw the ladder go right and then come left and that’s when I saw [plaintiff fall] … He wobbled this way to the right; [the ladder] went to the right … and then to the left, that’s when it went too far and [plaintiff] tumbled.”

 

The Court concluded that it is irrelevant whether plaintiff fell because the ladder wobbled or because he dropped his wrench. “It is clear the ladder did not prevent plaintiff from falling and there is no dispute that no safety devices, other than the ladder, were provided.” As there is no evidence plaintiff was recalcitrant or he was not engaged in a covered activity, it is sufficient for his claim that his injuries were the direct consequence of using a ladder that did not provide him with adequate protection and therefore, plaintiff should have been awarded summary judgment.

 

PRACTICE POINT:  When a ladder wobbles, and the plaintiff falls or is otherwise injured, it will almost always be a labor law 240(1) case ripe for motion by the plaintiff.  Why the ladder wobbled causing the plaintiff to fall is not relevant as the ladder, by wobbling and causing the plaintiff to fall, the ladder did not provide protection to the plaintiff and was thus not an adequate safety devise. 

 

 

Labor Law § 241(6) (JAE)

 

The First Department held the trial court correctly denied plaintiff’s motion under Labor Law § 241(6) claim, predicated on an alleged violation of the Industrial Code (12 NYCRR 23-1.21[b][3][i], [iv]), as there were issues of fact as to which ladder was used by plaintiff on the day of the accident and whether it was missing rubber feet.

 

Matter of New York City Asbestos Litig.   

June 28, 2016

Appellate Division, First Department

 

A jury in New York County awarded plaintiff $3.5M in damages for future pain and suffering against defendant National Grid after determining that LILCO, defendant National Grid’s predecessor in interest, issued detailed specifications directing contractors in the means and methods of mixing and applying asbestos-containing concrete and insulation at the power plant, thereby violating Labor Law § 200.

 

The trial court granted National Grid’s motion for summary judgment on its claim against defendant O’Connor Constructors for indemnification, except for attorneys’ fees, and denied O’Connor motion for summary judgment dismissing National Grid’s motion as to attorneys’ fees solely in connection with its defense against plaintiff’s action.

 

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

 

The First Department held the jury verdict is based on sufficient evidence and is not against the weight of the evidence. The Court noted it is meaningless that LILCO ensured its directives were followed by supervising the superintendents rather than by supervising the workers directly. Further, LILCO was admittedly in charge of trade coordination, i.e. directing the trades as to where and when to do their work, which resulted in plaintiff working in close contact with the asbestos-dust-producing insulators.

 

The Court held the jury’s finding to O’Connor, who settled with plaintiff before trial, was negligent but that its negligence was not a proximate cause of plaintiff’s injuries and that LILCO was 100% responsible was a fair interpretation of the evidence in light of LILCO’s supervision and control of the injury-producing activity.

 

National Grid’s contention that it was error to permit the jury to deliberate on a theory of a defective condition of the premises under Labor Law § 200 and on the issue of LILCO’s recklessness was determined by the Court to be harmless in light of the jury’s other findings.

d

Indemnity Issues in Labor Law (SEP)

 

The Court affirmed the trial court’s decision to grant summary judgment to National Grid on its contractual indemnification against O’Connor because the clause in the contract between LILCO and O’Connor, which predates GOL § 5-322.1, provides for indemnification for “all losses, damages, claims, liens and encumbrances, or any or all of them, arising out of or in any way connected with the work”, whether or not LILCO was negligent. Therefore, the Court held said clause was triggered by the trial evidence.

 

Finally, the Court held that although National Grid is not entitled to attorneys’ fees incurred in prosecuting the indemnification clause against O’Connor, it is entitled to attorneys’ fee incurred in defending against plaintiff’s action.

 

Viera v WFJ Realty Corp.

June 1, 2016

Appellate Division, Second Department

                                         

Plaintiff, while working on scaffold, allegedly was injured when a piece of the siding he was handling came into contact with overhead power lines, causing him to sustain an electric shock and fall. The trial court denied plaintiff’s motion for partial summary judgment on his Labor Law §§ 240(1) and 241(6) claims.

 

Labor Law § 240(1) (DRA)

 

The First Department held plaintiff established his prima facie entitlement to judgment as a matter of law by demonstrating he was injured when he fell from a scaffold that lacked a safety railing, and that he was not provided with a safety device to prevent him from falling.

 

With respect to Labor Law § 240(2), the Court noted there must be proof that “the subject scaffolding was more than 20 feet above the ground and lacked properly secured safety rails, and that the failure to provide such protection was a proximate cause of plaintiff’s injuries.” Here, the Court held plaintiff’s submissions presented a triable issue of fact as to whether the scaffold at issue was more than 20 feet above the ground. Therefore, the trial court correctly denied plaintiff’s motion for summary judgment on his cause of action under Labor Law § 240(2).

 

PRACTICE POINT:  It is critical in the analysis of this case to understand the basis for the decision that the scaffold did not provide adequate protection. It is not the electric shock which caused the fall, it is the lack of a safety rail which renders the scaffold an inadequate safety device.  Thus, it appears that if the scaffold had been properly built, and the plaintiff fell from it because he received an electric shock, then there would not have been a finding for the plaintiff. 

 

Labor Law § 241(6) (JAE)

 

With respect to the Labor Law § 241(6) cause of action, plaintiff asserted defendants violated 12 NYCRR §§ 23-5.1(j)(1), 23-1.15, and 23-1.16, and that such violations were the proximate cause of his injuries. However, as plaintiff did not raise these provisions before the trial court, the Second Department found they were improperly raised for the first time on appeal. 

 

Ramirez v I.G.C. Wall Sys., Inc.

June 22, 2016

Appellate Division, Second Department

 

Plaintiff’s decedent died while working on the construction of a one-family home owned by defendant Iona, who was also an officer of codefendant IGC, the general contractor for the project. IGC hired plaintiff’s employer. To gain access to the second floor where work was to be performed, plaintiff’s decedent was provided with a makeshift ladder, 14-feet long, that Iona made using two-inch by four-inch pieces of wood connected by nails and screws. The top of the ladder was attached to the second floor landing.

 

At the time of the accident, plaintiff’s decedent was descending the ladder while carrying a heavy drill when he felt the ladder “jerk”, causing him to fall. The trial court granted that portion of plaintiff’s motion seeking partial summary judgment on his Labor Law § 240(1), and denied Iona’s cross-motion to dismiss that claim and the Labor Law § 241(6) claim. 

 

Labor Law § 240(1) (DRA)

 

The Second Department stated that under the homeowners’ exemption, owners of a one- or two-family dwelling used as a residence are exempt from liability under Labor Law §§ 240(1) and 241(6) unless they directed or controlled the work being performed, citing to Chowdhury v Rodriguez.

 

Here, it was undisputed that the subject home was a single-family residence owned by Iona. However, the Court held Iona’s control of the work site exceeded that of the ordinary homeowner because he was involved in the construction, assembled and placed the ladder where it was, and instructed workers to use it for access to the second floor. The Court further noted Iona also performed some of the work himself, coordinated the subcontractors, and was eight to ten feet away from plaintiff’s decedent at the time of his accident, performing work on the entrance door. Thus, the Court held “because of his involvement in and control of the work site, [Iona] was not entitled to the homeowners’ exemption under Labor Law §§ 240(1) and 241(6).”

 

Plaintiff was additionally entitled to summary judgment on his Labor Law § 240(1) claim because his evidence demonstrated the make-shift ladder “jerked” as his decedent was descending, which caused him to fall to the ground.

 

PRACTICE POINT:  First things first, the plaintiff fell from the ladder because it jerked, thus the ladder was not an appropriate safety device.  Second, the homeowner exception is only available to the owner of a one or two family home where the owner does not supervise, direct or control the means and methods of work by the plaintiff.  Here the defendant was deeply involved in the work being done by the plaintiff and controlled the work site so he was not entitled to the exception and liability was found against him.

 

Batzin v Ferrone

June 29, 2016

Appellate Division, Second Department

 

Plaintiff allegedly was injured while using a table saw in the course of performing renovation work at a residential home owned by defendant Ferrone. The trial court granted Ferrone’s motion to dismiss the complaint alleging violations of Labor Law §§ 240(1) and 241(6).  

 

Labor Law § 240(1) (DRA)

 

The Second Department held Ferrone purchased the subject home with the intent of renovating it and reselling it at a profit, as he had done previously with fifteen houses. While he claimed he intended to live in the subject home for two to four years before reselling it, he did not, in fact, reside there at any time before plaintiff’s accident.

 

The Court noted Ferrone moved in four months after the renovations were complete, and then listed it for sale. At his deposition, Ferrone testified that his daughter was moving to a new boarding school and he “more than likely” would move to an area closer to her and he makes his living buying, redesigning and reselling homes.

 

Therefore, the Court held Ferrone failed to establish his prima facie entitled to judgment as a matter of law on the applicability of the homeowners’ exemption because there is no evidence, other than his own deposition testimony, of his intent at the time of the accident to reside at the subject home and his credibility should be resolved on cross-examination by the trier of fact rather than upon summary judgment. Thus, the Court reversed the trial court regardless of the sufficiency of plaintiff’s opposition papers.

 

PRACTICE POINT:  A strange turn of events in this one.  We have been seeing courts across the state support motions made before discovery is complete and stating that the argument that further discovery will be needed to oppose the motion is insufficient to defeat a Summary Judgment motion.  In addition the courts have uniformly held that a plaintiff is not subject to cross examination in an unwitnessed accident and absent direct evidence contrary to the plaintiff’s own testimony as to how the accident occurred Summary Judgment is granted to the plaintiff.  Here, however the court is in essence saying that while the defendant testified that he intended to live in the house, which would have created a situation where the homeowners exception would apply, it is not enough to establish that defense and that the plaintiff’s attorney should get a crack at him during a trial.  Well, what is good for the goose should be good for the gander I think, and Summary Judgment should once again be denied to plaintiff’s in unwitnessed accidents so we have a chance to cross them at trial to see if their story flies with the jury.  Sorry for the rant, but this bothers me.

 

 

Baugh v New York City Sch. Constr. Auth.

June 29, 2016

Appellate Division, Second Department

 

Plaintiff allegedly was injured after falling from a ladder. The trial court denied plaintiff’s motion seeking partial summary judgment on his Labor Law § 240(1) claim.  

 

Labor Law § 240(1) (DRA)

 

The Second Department reversed because plaintiff made a prima facie showing on the issue of liability by establishing that although he was provided with a ladder as required under the statute, the ladder was not so secured so as to prevent it and him from falling.

 

Defendants’ contention that they raised an issue of fact as to whether plaintiff’s alleged misuse of the ladder was the sole proximate cause of the accident was rejected by the Court because “plaintiff was provided with only an unsecured ladder and no safety devices [and thus he] cannot be held solely at fault for his injuries.”

 

PRACTICE POINT:  Where the sole safety device, here a ladder, fails to provide protection to the plaintiff and he falls there is little a defendant can do to prevent the granting of Summary Judgment.  For the sole proximate cause defense to work the defendant must provide an adequate safety device which the plaintiff has been instructed to use which the plaintiff, for no good reason fails to use or misuses.  Here the plaintiff was not provided with an adequate safety device. 

 

 

Piemonte v JSF Realty, LLC

June 29, 2016

Appellate Division, Second Department

 

Plaintiff owed discovery responses and the trial court ultimately issued an order directing the parties to comply with all outstanding discovery demands within thirty days. Plaintiff was specifically directed to provide a bill of particulars, medical reports, authorizations, and responses to combined demands or be precluded from presenting evidence at trial in support of all matters addressed by the defendants’ demands and notices.

 

After plaintiff’s failure to comply, defendant moved to dismiss the complaint on the ground that plaintiff was precluded from offering any evidence on the issues of liability and damages in the action alleging violations of Labor Law §§ 240(1), 241(6), 200 and common-law negligence. Plaintiff did not oppose the motion. The trial court denied the motion because defendant violated 22 NYCRR 202.7(a)(2) by failing to provide an affirmation from their counsel that it had conferred with opposing counsel in an effort to resolve the issues raised by the motion.

 

Labor Law § 240(1) (DRA)

 

The Second Department reversed because the plain language of 22 NYCRR 202.7(a)(2) indicates that the affirmation requirements only applies “with respect to a motion relating to disclosure or to a bill of particulars.” The Court stated a motion for summary judgment is not a discovery-related motion requiring an affirmation of good faith.

 

“When a plaintiff fails to timely comply with a conditional order of preclusion, the conditional order becomes absolute”, citing Gibbs v St. Barnabas Hosp., Keenan v Fiorentino and Panagiotou v Samaritan Vil, Inc. To obtain relief from the dictates of a conditional order that will preclude a party from submitting evidence in support of a claim or defense, the defaulting party must demonstrate (1) a reasonable excuse for the failure to produce the requested items and (2) the existence of a meritorious claim or defense.

 

Here, plaintiff neither opposed the motion nor independently moved for relief of the order, and failed to respond to defendant’s demands. Therefore, the Court held defendant demonstrated prima facie entitlement to judgment as a matter of law but submitting evidence that plaintiff could not make out a prima facie case at trial as to liability or damages. By failing to respond, the Court held plaintiff failed to raise a triable issue, and thus the trial court should have granted defendant’s motion dismissing the complaint. 

 

PRACTICE POINT:  Simple lesson to learn here is to answer discovery when it is due, and if you are late and there is a conditional order against you, for God’s sake, and that of both your client and your good name, stay late that day and answer it right then. 

 

 

Van Wormer v Watkins Glen Props., LLC

June 9, 2016

Appellate Division, Third Department

 

Plaintiff was hired by defendant to install vinyl siding at a rental property it owned, and thereafter was injured when he fell from an extension ladder provided by defendant. The trial court granted defendant’s cross-motion to dismiss the complaint alleging violations of Labor Law §§ 240(1), 241(6) and 200.  

 

Labor Law § 240(1) (DRA)

 

The Third Department held the extension ladder did not slip, fail or collapse; rather, plaintiff’s unwitnessed fall from it occurred when he was climbing down it empty handed and misjudged the location of a step that had one rung instead of two. The fact that other steps had two rungs was because plaintiff had not fully extended the ladder and the step with one rung reflected the placement of a professional engineer experienced in investigating construction accidents, who examined the ladder, found it to be in good working order and noted that “the alleged ‘missing rung’ … is a standard for portable metal ladders where the latching mechanism is located attached to the rails.”

 

The Court therefore held defendant met its burden in showing plaintiff was provided with an adequate safety device and that no violation of the statute was committed which could be said to be a proximate cause of this accident”, shifting the burden to plaintiff. No expert proof was offered by plaintiff to call the engineer’s findings into question, and his own account of events gave no reason to believe that his fall was in any way related to “the adequacy or placement of the safety device” which the Court noted was not the usual case.  Accordingly, defendant was correctly awarded summary judgment dismissing this claim.

 

PRACTICE POINT:  What a welcome decision applying logic to a fall from a ladder.  Where there is no defect in the ladder, and the ladder did not shift or do anything to cause the plaintiff to fall other than he misjudged a step, the ladder is then an adequate safety device and Summary Judgment to the defendant.  Logical and consistent with Blake.

 

Labor Law § 241(6) (JAE)

 

With regard to the Labor Law § 241 (6) cause of action, defendant’s engineer opined the ladder complied with all applicable safety regulations and that none of the purportedly applicable regulations cited by plaintiff's counsel required double rungs at every step of a ladder.

 

The Third Department thus affirmed the trial court’s dismissal of this claim as well.

 

Kim v Dormitory Auth. of The State of New York

June 16, 2016

Appellate Division, Third Department

 

Petitioner was injured when he reportedly dropped a two-by-four board. The accident occurred on May 23, 2013 and in mid-August 2013, the lawyer who petitioner consulted wrote him a letter declining the case and warning him of impending deadlines. In August 2014, petitioner moved for leave to serve a late notice of claim, asserting liability under Labor Law §§ 240(1), 241(6) and 200. The trial court denied petitioner’s motion. 

 

Labor Law § 240(1) (DRA)

 

The Third Department restated the non-exhaustive list of pertinent factors in determining whether leave to file a late notice of claim should be granted, including “whether [respondent] obtained actual knowledge of the essential facts constituting the claim within 90 days or a reasonable time thereafter, whether [petitioner] offered a reasonable excuse for the delay in filing a claim and whether that delay would substantially prejudice [respondent], with no one factor being dispositive.”

 

Petitioner contended respondent had sufficient notice of the essential facts since its representative prepared a report on the day of the incident. The report briefly relates that petitioner was holding a seven-foot long two-by-four board above his head, he dropped it to his shoulder when distracted by a coworker and he had a “sore shoulder.”

 

The Court held that given the general nature of the information in the cursory report, the trial court did not err in finding respondent lacked sufficient notice of the essential facts regarding a potential claim against it or that petitioner had sustained the ostensibly significant injuries he now claims. The Court rejected petitioner’s contention that his inability to understand English provides an excused because he was able to adequately communicate with his first attorney and regardless such an argument “is not a sufficient excuse for failure to serve a timely notice of claim.”

 

PRACTICE POINT:  Given that a great many labor law cases are filed against municipal clients it is important to know how to argue against the oft freely granted motion to file a late notice of claim.  The heart of the basis for opposing these motions is that the defendant “lacked sufficient notice of essential facts regarding a potential claim against it or that petitioner had sustained the ostensibly significant injuries he now claims”.  It is well worth the effort to vigorously oppose the motion to file the late notice of claim and, sometimes, if you have the contractor who will be taking over for the municipal defendant via contract, it can be well worth your while to take over early on and control the file from day one and thus draft the papers you are eventually pay for in any event and fight hard from the opening bell.

 

Cullen v AT&T, Inc.

June 10, 2016

Appellate Division, Fourth Department

 

Plaintiff was working on a cell phone tower approximately 180 feet above the ground with his full body harness tied off to a part of the tower. He had used “choker slings” that looked like “giant rubber bands” to lower himself down from a horizontal boom for access to a tower mounted amplifier, and sustained injuries when the slings latched around his waist and “jerked” him to a stop after he slipped and fell from the boom while climbing back on it.

 

In support of his cross-motion for partial summary judgment on his Labor Law § 240(1) claim, plaintiff submitted his deposition transcript and the affidavit of an expert who opined that the use of the slings exposed plaintiff to unreasonable danger, and defendants’ failure to furnish additional safety equipment was a proximate cause of plaintiff’s injuries. In opposing the motion, defendants’ expert asserted the equipment provided to plaintiff was consistent with industry standards, the adequacy of the protection afforded was evidence from “the fact that plaintiff did not fall to the ground when he lost his footing” and that additional equipment “would not have provided plaintiff with any measure of safety materially different from” that which he already had. The trial court granted plaintiff’s cross-motion for partial summary judgment.

 

Labor Law § 240(1) (DRA)

 

The Fourth Department held the trial court properly determined plaintiff was engaged in a protected activity; repair work in light of plaintiff’s testimony that he never performed preventative maintenance on the towers and he and his coworkers were only dispatched to the tower when something was in need of repairing. Thus, the Court held where “a person is investigating a malfunction, … efforts in furtherance of that investigation are protected activities under Labor Law § 240(1).”

 

However, the “question of whether a device provided proper protection within the meaning of Labor Law § 240(1) is ordinarily a question of fact, except in those instances where the unrefutted evidence establishes that the device collapsed, slipped or otherwise failed to perform its intended function of supporting the worker and his or her materials.”

 

On this point, the Court deemed defendants’ expert affidavit sufficient to raise an issue of fact whether the safety devices provided to plaintiff were adequate for his work even though plaintiff, his coworker and plaintiff’s expert all submitted affidavits stating that additional safety devices should have been provided.

 

Justices Whalen and Lindley dissent and would affirm the trial court’s decision to award plaintiff summary judgment because in their view, plaintiff made a prima facie showing that the absence of necessary safety equipment i.e. the inadequacy of the slings alone to protect him against elevation-related risks as he went back up to the boom, was a proximate cause of his injuries.

 

The dissent notes defendants made no showing that plaintiff misused or failed to use any safety device such that his own conduct may have been the sole proximate cause of his injuries, and the dissent therefore disagrees with the majority that there is a reasonable view of the evidence in which plaintiff was provided with proper protection.

 

PRACTICE POINT:  The differing opinions of the experts are sufficient to establish a question of fact as to the sufficiency of the safety devices provided.  This decision highlights the necessity to have an expert to support your argument, on either side, that the safety device was either sufficient or not for the task at hand.  The dissent seems to weigh the differing opinions and make a factual determination which, seemingly, should be in the hands of a jury as it is not a question of law but rather a question of fact.  That there are 2 dissents here means that we will watch and see if this gets to the court of Appeals by right but this is not, as of now, a final decision which will necessarily get to the court.

 

 

Held v Pike Co.

June 10, 2016

Appellate Division, Fourth Department

 

Plaintiff allegedly slipped on a steel beam and fell fifteen to the ground. The trial court granted plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) against defendants/third-party plaintiffs, who were, the owner, general contractor and a subcontractor on the project. The trial court also granted plaintiff’s motion to sever the damages-only trial from the third-party action.

 

Plaintiff and third-party plaintiffs agreed to submit the issue of damages to the court on papers alone, and the court awarded plaintiff damages. After a trial on the third-party action seeking contractual and common-law indemnification against CME, the court issued a judgment against CME.

 

Labor Law § 240(1) (DRA)

 

The Fourth Department held that contrary to CME’s contention, it was not held liable under § 240(1) but rather was held liable for its negligence in causing the accident. It is well-settled that, where an owner or contractor is held liable to a plaintiff pursuant to the statute, the owner or contractor may recover “under familiar common-law principles, full indemnification … from the actor who caused the accident (the active tortfeasor), and, where the cause is shared, contribution.”

 

Contribution is proper where the culpable parties are subject to liability for damages for the same personal injury, “whether or not the culpable parties are allegedly liable for the injury under the same or different theories.” CME asserted that it was denied the opportunity to litigate the issue of plaintiff’s damages but the Court agreed with plaintiffs that CME waived that argument by not opposing plaintiff’s motion to sever.

 

PRACTICE POINT:  As a third party defendant it is important to argue against severance where, as here, the issue of liability will be determined in the portion of the case you no longer involved in.  As a third party defendant your issue may well be limited to your own active negligence and not to the plaintiff’s base claim, which will be determined prior to the claim against you for common law indemnity and the only issue left for you to fight is active negligence on your own part.  You have also lost the ability to argue that the primary defendant may have active negligence, recall that the plaintiff does not care if the defendant has active negligence or a 200 claim against them if he can establish statutory liability under 240(1) against the defendant and thus establish absolute liability even absent active negligence.  The third party defendant then may be precluded from arguing that the third party plaintiff has active negligence as he declined to oppose the severance. 

 

 

Pearson v Wallace

June 17, 2016

Appellate Division, Fourth Department

 

Defendant/third-party plaintiff LeCesse, the general contractor for a project owned by defendant Geneva, subcontracted demolition work to plaintiff’s employer and third-party defendant Royal. Plaintiff was injured when the ladder on which he was working allegedly struck by the chute of a concrete truck, causing him to fall. The trial court denied his motion for partial summary judgment on his Labor Law § 240(1) against LeCesse and Geneva (collectively “defendants”).

 

Labor Law § 240(1) (DRA)

 

The Fourth Department held plaintiff met his initial burden in submitting evidence that defendants violated the statute by failing to ensure the proper placement of the ladder and that such violation was a proximate cause of his injuries. In opposition, however, the Court held defendants raised an issue of fact that, contrary to plaintiff’s account of the accident, the ladder did not move upon contact with the chute, and plaintiff was not knocked off the ladder by such contact.

 

Accordingly, the Court concluded that the two different versions of the accident create a question of fact as to the adequacy of the protective device and as to plaintiff’s credibility. Moreover, defendants submitted evidence that plaintiff was directed to refrain from working in the area during the scheduled concrete pour and that, upon plaintiff’s initial refusal to cease working there, LeCesse’s superintendent removed the ladder from that area and also had plaintiff leave the area. However, plaintiff intentionally disregarded the directives, returned to the area, set up the ladder, and continued working there when other workers were attempting to being the pour.

 

PRACTICE POINT:  Where the plaintiff intentionally refused to stop working in an area where he has been told it is dangerous to work, and is injured, a question of fact in the least is established.  In addition differing versions of how the accident occurred, one which supports the plaintiff’s contention for Summary Judgment and one which supports the defendant’s contention for Summary Judgment, a question of fact is the only potential outcome.

 

 

 

 

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

 

 

12 NYCRR § 23-1.7(f) – Protection in Construction, Demolition and Excavation Operations; Protection from general hazards; Vertical passage.

 

§ 23-1.7(f) Stairways, ramps or runways shall be provided as the means of access to working levels above or below ground except where the nature or the progress of the work prevents their installation in which case ladders or other safe means of access shall be provided.

 

Akins v Baker, 247 AD2d 562, 669 NYS2d 63 (2d Dept 1998);

Smith v M.V. Woods Const. Co., 309 AD2d 1155, 764 NYS2d 749 (4th Dept 2003);

Farrell v Blue Circle Cement, Inc., 13 AD3d 1178, 787 NYS2d 773 (4th Dept 2004);

Lavore v Kir Munsey Park 020, LLC, 40 AD3d 711, 835 NYS2d 708 (2d Dept 2007);

Amantia v Barden & Robeson Corp., 38 AD3d 1167, 833 NYS2d 784 (4th Dept 2007);

Conklin v Triborough Bridge and Tunnel Authority, 49 AD3d 320, 855 NYS2d 54 (1st Dept 2008);

Lee v Astoria Generating Co., L.P., 55 AD3d 124, 863 NYS2d 164 (1st Dept 2008), rev’d on other grounds, 13 NY3d 382 (2009);

McGarry v CVP 1 LLC, 55 AD3d 441, 866 NYS2d 76 (1st Dept 2008);

Harris v Hueber-Breuer Const. Co., Inc., 67 AD3d 1351, 890 NYS2d 234 (4th Dept 2009);

Intelisano v Sam Greco Const., Inc., 68 AD3d 1321, 890 NYS2d 683 (3d Dept 2009);

Carrera v Westchester Triangle Housing Dev. Fund Corp., 116 AD3d 585, 984 NYS2d 339 (1st Dept 2014);

Garcia v Neighborhood Partnership Housing Dev. Fund Corp., 113 AD3d 494, 980 NYS2d 6 (1st Dept 2014);

 

 

 

 

 

 

 

Akins held reg sufficiently specific to support Labor Law § 241(6) claim.

Smith held reg could serve as predicate for back injury sustained when, as a result of reg violation, π forced to throw cinder blocks up over his head & onto scaffold.

Farrell held reg did not apply where accident occurred on truck scale, which is not above-ground working level requiring stairway, ramp or runway.

Lavore held reg inapplicable where π fell when descending from side of truck bed, 5 feet from the ground.

Amantia held reg did not apply where π fell while descending from cargo floor of truck, which was not a working level above ground.

Conklin found reg applicable where π allegedly slipped on muddy cross-piece of “chicken ladder” used as ramp & as sole access to employer’s shanty.

Lee held reg potentially applicable where π had to climb 15 feet to reach access hatch & then lower himself through hatch onto turbine shell & down to base of exhaust well, falling 8 feet.

McGarry held reg applicable where π fell through unsafe sidewalk curb & adjacent road surface.

Harris held reg applied where π injured while attempting to descend multi-tier scaffold with allegedly inadequate planking.

Intelisano held reg mandates specific conduct that may have been violated by failure to provide ladder to π, who had to climb to reach top of 10-foot high bundles resting on flatbed.

Carrera held reg inapplicable where area in which π slipped & tripped did not require π to gain access to working levels above or below ground.

Garcia found reg potentially applicable where it was unclear whether collapse caused by defective staircase that was the sole means of access to worksite.

d

 

\Hurwitz & Fine, P.C. is a full-service law firm
providing legal services throughout the State of New York

 

Labor Law Pointers

 

Editor
David R. Adams


Associate Editor
V. Christopher Potenza


Associate Editor
Steven E. Peiper


Associate Editor
Jennifer A. Ehman

 

Associate Editor
Marc A. Schulz

 

Labor Law Team

 

            David R. Adams, Team Leader                                              Steven E. Peiper

            [email protected]                                                             [email protected]

 

            Dan D. Kohane                                                                       Jennifer A. Ehman

            [email protected]                                                            [email protected]

 

            Michael F. Perley                                                                   Marc A. Schulz

            [email protected]                                                           [email protected]

           

            V. Christopher Potenza                                                         

            [email protected]                                                           

 

 

Hurwitz & Fine, P.C.
424 Main Street

Suite 1300 Liberty Building
Buffalo, New York 14202

Phone:  716.849.8900
Fax:   716.855.0874
www.hurwitzfine.com

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

Attorney Advertising.

 

© 2011-2016 Hurwitz & Fine, P.C., All rights reserved.

 

Newsletter Sign-up

Fill in the form to register to receive any of our free electronic newsletters: