Labor Law Pointers - Volume IV, No. 11

Labor Law Pointers

Volume IV, No. 11
Thursday, September 3, 2015

Brought to you by Hurwitz & Fine, P.C.
Editor: David R. Adams
[email protected]

Hurwitz & Fine, P.C.’s monthly electronic newsletter, Labor Law Pointers, offers a review and concise analysis of current and significant New York State Labor Law cases in four distinct areas of law including New York Labor Law Section 240(1), 241(6), 200 and indemnity. We approach these cases by analyzing and addressing all potential defenses to the Labor Law claim, and conducting a comprehensive and complete review of all contracts and policies to assess whether it is appropriate and possible to shift potential risk to other parties or entities based on contracts, additional insured status or common law indemnification. 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 716-849-8900.




From the Editor:

Do you have a situation; we exist only to address your situations.  Seriously.

The dog days of summer are upon us, and the courts are in slow mode.  Only a few cases this month but one that I think is important.

In the Cacares case addressed below the plaintiff was standing on a ladder, a perfectly good ladder at that, when he tried to reach around a stud and lost his balance and fell.  Sounds a little like our favorite Blake case doesn’t it now.  Nothing at all was wrong with the ladder, per plaintiff’s own testimony.  Ladder does not tip, move or shimmy before the plaintiff starts to fall.  Seems like the jury should decide if it was the sole proximate cause of the plaintiff that he fell, surely not Summary Judgment for the plaintiff.  Well guess again.  The first decided that the trial judge, Justice Rakower, was wrong in that assessment.  But they did not do so unanimously.  Justices Renwick, Manzanet-Daniels and Gische found that it was a Summary Judgment case for the plaintiff as there was no one holding the ladder for the plaintiff.  There had been a co-worker with the plaintiff before the fall but the decision does not indicate that he had been holding the ladder for the plaintiff as he worked, only that he had been called away.

All hope is not lost here however, as Justices Sweeney and Saxe dissented, arguing that ”The majority has failed to acknowledge an incontrovertible principle of Labor Law jurisprudence: that a plaintiff-worker's testimony that he fell from a non-defective ladder while performing work does not alone establish liability under Labor Law §240(1)”.  The problem is that this does not result in a judgment for the plaintiff, it is only a partial Summary Judgment decision, so it does not go to the Court of Appeals as a matter of right.  We can only hope that the case is tried and then it will be a final decision and can go to the up the ladder to Albany.

I would encourage you to read the actual decision in full.  Remember that all you need do is hold the Ctrl button down and right click on the case name and it will take you, via hyperlink, to the official decision.

Thanks for reading this and please call or email with your questions, we really do thrive on them.  David




David R. Adams
Hurwitz & Fine, P.C.
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Suite 1300 Liberty Building
Buffalo, New York 14202
Phone:  716.849.8900
Direct:  716.849.8916
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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.

Stankey v Tishman Const. Corp. of N.Y.
August 25, 2015
Appellate Division, First Department

Stankey was allegedly injured while hanging tarps on the top half of an extension ladder fourteen feet of the ground.  Although he used half of the extension ladder without proper rubber footings, the trial court granted Stankey’s motion for partial summary judgment on his Labor Law §§ 240(1) and 241(6) based on regulation (12 NYCRR) § 23-1.21(b)(3) and (b)(4). 

Labor Law § 240(1) (DRA)

The trial court held defendants, even if not general contractors, are statutory agents of the owner where they maintain sufficient control over plaintiff’s work to be subject to liability under § 240(1) and § 241(6).  The court rejected defendants’ sole proximate cause argument as the record showed Stankey “only saw the extension ladder” in the area where he was working and there no scaffolding available to him.  Stankey’s elevation-related work fell squarely within the statute, and defendants failed to show that he refused to use the safety devices that were provided to him.

PRACTICE POINT:  This case reminds us of the three essential ingredients for a successful sole proximate cause defense.  First there must be an appropriate safety device.  Second that safety device must be available to the plaintiff.  Third the plaintiff must be instructed to use the safety device or have the knowledge that he was to use the safety device.  With all three of these ingredients present the plaintiff must then fail to use the appropriate safety device or misuse it for the sole proximate cause defense to apply.


Labor Law § 241(6) (JAE)

With regard to § 241(6), the First Department held that the motion court correctly granted summary judgment given the undisputed facts that plaintiff found an extension ladder separated into two pieces, and used the top half of the ladder, which did not have any ladder footings. Accordingly, Stankey established violations of the Industrial Code provisions upon which he relied (see 12 NYCRR § 23—1.21[b][3], and [b][4]).

Caceres v Standard Realty Assoc., Inc.
August 25 2015
Appellate Division, First Department

Plaintiffs sued derivatively on behalf of Caceres, who fell while standing on an A-frame ladder framing a wall in a bedroom to make a closet.  His supervisor called away his helper, no one else came, and so Caceres moved the ladder by himself.  As he climbed the ladder, he thereafter lost his balance and fell.  The trial court denied plaintiffs’ motion for partial summary judgment on his Labor Law § 240(1).

Labor Law § 240(1) (DRA)

According to the majority of the First Department, it was undisputed that no equipment was provided to Caceres to guard against the risk of falling from the ladder while operating the drill and his coworker was not stabilizing the ladder at the time of the fall.  Thus, the court held that the testimony from Caceres that he fell from the ladder while performing drilling work established prima facie entitled to summary judgment on his § 240(1) claim.

Justice Saxe would affirm denial of summary judgment to plaintiff as his own testimony created triable issues of fact as to whether the non-defective ladder would have prevented him from falling while he was performing his assigned framing work alone.  Caceres testified that the ladder began to tip over causing him to lose his balance but that the feet of the ladder did not move before he lost his balance and that the ladder fell at the same time.  In addition, Justice Saxe would also find a triable issue of fact as to whether the manner in which Caceres performed his work was the sole proximate cause because there was evidence that Caceres placed the ladder in a position where he had to lean and reach around the site of it while holding and applying pressure his drill.  
PRACTICE POINT:  Oh to have had this be a final order that could go, with its two dissents, to the Court of Appeals.  This is a perfect case to move the case law to recognize valid defense that there was nothing wrong with the safety device and it was just that the plaintiff lost his balance.  The Blake case from the COA in 2003 established the premise that where the ladder is not in any way defective, that a plaintiff simply falling off the ladder does not establish a 240(1) case.  Here the first unfortunately found the exact opposite in my opinion.  The ladder did not tip until after the plaintiff had started to fall.  The ladder was not defective.  Exactly as in Blake, the court should have allowed the jury to decide if the plaintiff was the sole proximate cause of the accident.

Cunha v Crossroads II
August 5, 2015
Appellate Division, Second Department
Cunha was injured when an excavator rolled over his legs as he was standing in between the excavator and a loader, and was signaling to the loader operator to dump water out of its bucket.  The loader allegedly moved forward and caused Cunha to jump backward and into the path of the excavator.   The trial court denied defendants motion for summary judgment dismissing the Labor Law § 241(6) claim based on regulations §§ 23-4.2(k), 9.4(h), 9(k), 9.4(h)(5) and 9.5(c).

Labor Law § 241(6) (JAE)

The Second Department addressed each regulation separately.  First, 23-4.2(k) provides that “[p]ersons shall be not be suffered or permitted to work in any area where they may be struck or endangered by any excavation equipment or by any material being dislodged by or falling from such equipment.”   The appellate court determined that contrary to the defendants’ contention, 12 NYCRR 23-4.2(k) provides a sufficient predicate for a Labor Law § 241(6) cause of action.  Further, 23-4.2(k) does not require excavation work to be underway at the time of the accident, and there is no exception under 23-4.2(k) for when the injured worker was part of the same work crew as the operator of the excavator.
Defendants also failed to demonstrate their entitlement to judgment as a matter of law dismissing the cause of action based upon 23-9.4(h)(4), which provides that “[u]nauthorized persons shall not be permitted in the cab or immediately adjacent to any such equipment operation.”  With respect to the alleged violation of this section, plaintiff alleged that, although he was authorized to be at the work site generally, he was not assigned any tasks with respect to the loader.   While plaintiff was authorized to be immediately adjacent to the equipment based on evidence that plaintiff was signaling to the operator of the loader at the work site when the accident occurred, defendants failed to submit any evidence that the plaintiff’s supervisor had authorized or directed him to give signals to the operator of the loader. Therefore, they failed to demonstrate prima facie that the plaintiff was not an “unauthorized person” immediately adjacent to the equipment.
Defendants further failed to establish their entitlement to judgment as a matter of law based upon 23-9.5(c).  This section provides that “[e]xcavating machines shall be operated only by designated persons,” and that “[n]o person other than the pitman and excavating crew shall be permitted to stand within range of the back of a power shovel or within range of the swing of the dipper bucket while the shovel is in operation.”  Contrary to defendants’ contention, 23-9.5(c) sets forth a specific, rather than general, safety standard, and is sufficient to support a Labor Law § 241(6) cause of action.  Further, defendants presented no evidence that the loader operator was a “designated person” within the meaning of the Industrial Code because the evidence does not demonstrate that the operator was “selected and directed” by his employer to operate the loader.  Moreover, for the same reasons that defendants failed to present sufficient evidence demonstrating that the plaintiff was not an “unauthorized person,” defendants failed to present sufficient evidence demonstrating that plaintiff was part of an “excavating crew.”
Since defendants failed to make out a prima facie showing on those branches of their motion, the Supreme Court properly denied those branches of the motion.
However, defendants did establish entitlement to judgment based upon 23-9.4(h)(5) by demonstrating that the excavator was not “[c]arrying or swinging suspended loads over areas where persons [were] working or passing” at the time of the accident.

Zamora v 42 Carmine St. Assoc., LLC
August 12, 2015
Appellate Division, Second Department
Plaintiff was injured when he and a coworker were installing a plate glass windowpane in front of a window of a ground-level storefront.  The window was carried by plaintiff and his coworker using suction cups, and as they attempted to fit the top of the glass pane within the frame, the pane cracked down the middle.

Plaintiff testified that he told his coworker to hold up the broken piece, which fell on plaintiff before he could do anything.  The coworker testified that his piece fell onto the ground and then plaintiff’s piece broke and fell on him. The trial court denied plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim, and denied defendant Carmine Street’s motion to dismiss that claim.

Labor Law § 240(1) (DRA)

The Second Department held that Carmine Street was entitled to summary judgment because it submitted evidence establishing the absence of a causal nexus between plaintiff’s injury and a lack or failure of a device prescribed by the statute.  Plaintiff failed to raise an issue of fact, and thus his motion was properly denied.

PRACTICE POINT:  Where the piece of glass is being placed into the window there is truly no way to secure the exact item being installed.  It seems logical that there is not any available safety device which could have prevented the glass from falling on the plaintiff, however it happened, when they were actually holding the piece that fell.  Absent a safety device which could have prevented the injury to the plaintiff the statute has simply not been violated.


Carrillo v Circle Manor Apts.
August 26, 2015
Appellate Division, Second Department

Plaintiff was allegedly injured when his foot went through a “rotted” portion of plywood subflooring in the basement of defendant’s rental property.  The plywood became exposed when plaintiff and his coworkers removed the carpet.  The trial court denied plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim, and granted the cross-motion to dismiss that claim in addition to the common-law negligence and §§ 200 and 241(6) claims.

Labor Law § 240(1) (DRA)

The Second Department held that plaintiff failed to demonstrate that the partial collapse of a small section of the basement subfloor and, in turn, the need for safety devices to protect plaintiff from an elevation-related hazard, were foreseeable.  Thus, plaintiff failed to meet his burden.  In addition, the court held defendants met their burden in demonstrating that the partial collapse was, in fact, not foreseeable in that plaintiff’s work did not expose him to a foreseeable risk of injury from an elevation-related hazard for which the use of safety devices would be required.  As a result, the trial court properly dismissed the § 240(1) cause of action.

PRACTICE POINT:  We do not often discuss foreseeability in the context of labor law but here it is.  This case is not a case where the boards on a scaffold failed and plaintiff fell through, that would in fact be a failure of a safety device.  Here it was a failure of the flooring in the structure itself which failed and, without any foreseeability that such a failure could occur, there is no foreseeable risk for the defendants to protect the plaintiff from.


Labor Law § 241(6) (JAE)

The Second Department agreed that summary judgment was properly granted dismissing the cause of action alleging a violation of Labor Law § 241(6).  While it disagreed with the finding that the injured plaintiff’s work was not covered under that provision, nevertheless, it held that  defendant established its prima facie entitlement to judgment as it demonstrated, prima facie, that the provisions of 12 NYCRR 23-1.6, 23-1.7(b)(1), 12 NYCRR 23-1.8, 12 NYCRR 23-1.16, 12 NYCRR 23-2.1, 12 NYCRR 23-2.4, and 12 NYCRR 23-3.3 were inapplicable to the facts of this case.


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

The Second Department affirmed, holding that the Supreme Court properly granted those branches of the defendant's cross motion dismissing the causes of action alleging violations of Labor Law § 200 and common-law negligence.  Where, as here, a plaintiff's alleged injury arose not from the manner in which the work was performed, but from an allegedly dangerous condition on the premises, a property owner moving for summary judgment has the initial burden of showing only that it neither created the dangerous condition nor had actual or constructive notice of it.  Here, the defendant demonstrated its prima facie entitlement to judgment as a matter of law by establishing that it did not have actual or constructive notice of the defect in the subfloor, which was latent and not discoverable upon a reasonable inspection. The defendant further demonstrated that it did not create the defect. In opposition, the plaintiffs failed to raise a triable issue of fact.


Asservero v Hamilton & Church Props., LLC
August 19, 2015
Appellate Division, Second Department
Plaintiff fell from an allegedly unsecured extension ladder that shifted while he was descending it on a renovation project owned by defendant Hamilton.  The ladder was owned by subcontractor and third-party defendant Castle.  Plaintiff moved for partial summary judgment on his Labor Law § 240(1) claim, and Hamilton cross-moved to dismiss that claim and the §241(6) claim asserting the homeowners’ exemption because the building was an owner-occupied two family dwelling not used solely for commercial purposes, and Hamilton did not direct or control plaintiff’s work.

Castle moved to dismiss the third-party complaint alleging contractual and common-law indemnification claims.  The trial court granted Hamilton’s cross-motion, denied plaintiff’s motion, and denied Castle’s motion to dismiss the third-party complaint.

Labor Law § 240(1) (DRA)

The Second Department held that Hamilton failed to demonstrate that the homeowners’ exemption applied in submitting the building’s certificate of occupancy classifying it with the J-3 group that includes one and two family residential dwellings.  The court noted that the ground floor of the building contained a commercial unit intended for retail, and is separate from the building’s two residential apartments.  Thus, the court declined to extend the exemption to a three-unit building, of which two of the units were used to generate rental income.

Although the court held plaintiff establish entitlement to summary judgment by submitting evidence that he fell from an unsecured ladder, the court also held Hamilton raised an issue of fact as to whether plaintiff’s alleged misuse of the ladder was the sole proximate cause of his incident.

PRACTICE POINT:  Start with the fact that the plaintiff fell from a ladder which shifted causing the fall so we have a prima facie 240(1) case.  The question becomes can a mixed use structure qualify for the single or double dwelling exception.  Here the fact that there was a certificate of occupancy for a one or two family dwelling was not dispositive.  The courts have already ruled in Hossain that a three apartment building, even though occupied by only 2 families does not qualify. The building in the instant case would had a commercial unit and two living spaces, thus 2 of the three available spaces with income generating and thus the exception simply does not apply.


Indemnity Issues in Labor Law (SEP)

The Appellate Division affirmed the Trial Court’s denial of Hamilton’s motion.  Relief was inappropriate where the purchase order that Hamilton entered into with Castle contained a reference to AIA-401.  Thus, while the purchase order did not contain an indemnity provision, the parties acknowledged that AIA-401 did, in fact, contain such a requirement.  As such, on the Record before the Court, a question of fact existed as to whether the parties intended to be bound by the terms (particularly the indemnity provision) of AIA-401.




12 NYCRR § 23-1.7(d) – Protection from general hazards – Slipping hazards.


§ 23-1.7(d) provides that “employers shall not suffer or permit any employees to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition”, and is sufficiently specific.

Bannister v LPCiminelli, Inc., 93 AD3d 1294, 940 NYS2d 749 (4th Dept, 2012);
John v Klewin Bldg. Co., Inc., 94 AD3d 1502, 943 NYS2d 812 (4th Dept 2012);
Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139, 950 NYS2d 35 (1st Dept 2012);
Raffa v City of New York, 100 AD3d 558, 955 NYS2d 9 (1st Dept 2012);
Zastenchik v Knollwood Country Club, 101 AD3d 861, 955 NYS2d 640 (2d Dept 2012);
Croussett v Chen, 102 AD3d 448, 958 NYS2d 105 (1st Dept 2013);
Burnett v City of New York, 104 AD3d 437, 961 NYS2d 81 (1st Dept 2013);
Thompson v 1241 PVR, LLC, 104 AD3d 1298, 961 NYS2d 689 (4th Dept 2013);
Francescon v Gucci America, Inc., 105 AD3d 503, 964 NYS2d 8 (1st Dept 2013);
Smith v Nestle Purina Petcare Co., 105 AD3d 1384, 966 NYS2d 292 (4th Dept 2013);
Harasim v Eljin Const. of New York, Inc., 106 AD3d 642, 966 NYS2d 387 (1st Dept 2013);
Garcia v 245 10th Ave., LLC, 40 Misc3d 127(A), 975 NYS2d 366 (1st Dept 2013);
Cerverizzo v City of New York, 111 AD3d 535, 975 NYS2d 338 (1st Dept 2013);
Jackson v Heitman Funds/191 Colonie LLC, 111 AD3d 1208, 976 NYS2d 283 (3d Dept 2013);

Bannister held reg inapplicable to open courtyard where π slipped on ice b/c area not walkway, passageway or path under reg.
John found question of fact whether work was to be performed on roof where π fell and whether it was wet and thus failed to provide safe footing, precluding SJ.
Cappabianca found issue of fact whether π’s saw sprayed water onto floor b/c malfunction or whether water not foreign substance b/c wet saws always sprayed water onto floor precluded SJ for π.
Raffa held reg inapplicable to open, unpaved area where π walking when he allegedly slipped and fell.
Zastenchik held reg inapplicable where π allegedly injured when his foot b/c stuck in mud to depth of about 10 inches as he retrieved pipes and he did not slip or trip.
Croussett held reg inapplicable where there was no evidence of a slippery floor where π fell of ladder.
Burnett held reg applied to rail bed which constituted a floor, passageway, or walkway, a watery slipping hazard was permitted to exist, making footing unsafe and said unsafe condition caused π to slip and fall.
Thompson held π entitled to summary judgment under this reg where he fell on ice and snow that accumulated on the floor of the building where he was framing interior walls before a proper roof or windows were installed.
Francescon held reg inapplicable to fall from work area to subfloor 12-15 inches as it was not connected to any allegedly slippery condition.
Smith held reg inapplicable where π slipped and fell on accumulated grain dust and hose after stepping off ladder which was the very task he was charged with removing and thus was integral part of task he was performing.
Harasim held reg did not apply where π slipped & fell on staircase as it was not “passageway” but sole means of access to work site & not open area accessible to general public.
Garcia held reg inapplicable where incident occurred in “pretty big … open … courtyard area” and not a “passageway” or “walkway” under reg.
Cerverizzo held reg inapplicable b/c π testified only that he both tripped and slipped is contained in affidavit “tailored to avoid the consequences of his prior deposition that he neither tripped nor slipped.”
Jackson found issue of fact whether slippery condition on roof was caused of incident in which roll fell, forcing T-handle to rapidly move upward & hit π on side of his side.

\Hurwitz & Fine, P.C. is a full-service law firm
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Labor Law Pointers

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                                                                       Cassandra A. Kazukenus
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            Michael F. Perley                                                                  Jennifer A. Ehman
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            V. Christopher Potenza                                                        Marc A. Schulz
[email protected]                                                            [email protected]


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