Labor Law Pointers - Volume I, No. 12


From the Editor:

I hope that everyone is now tied off as required above.  Once again the courts have provided us with slim pickings for the month.  Hopefully that means that next month we will have some more cases for your review. 
I have had numerous questions in the past month on specific cases from carriers and defendants who have a “situation”.  To quote Dan Kohane, “we love situations”.  Please feel free to call with questions regarding the labor law, it brightens my day to have an interesting fact pattern to decipher and determine if the case is a labor law case or not.  Often, as you are all aware, the question revolves around not only if the case is a labor law case but the need to decipher which party owes additional insured coverage, contractual indemnification or contribution or common law indemnification.  This is our bread and butter.  With our knowledge of the labor law combined with our knowledge of coverage issues no one is better qualified to dig into these issues, or for that matter crazy enough to actually enjoy it the way we do.
In my dual role as editor and author of a section of the newsletter I continue to try and find something to keep you all coming back to Labor Law Pointers.  I was searching the internet last night for something interesting and came across a game, “Construction Fall” which kept me awake until I figured all of the puzzles out.  I have included the hyperlink in case any of your like to figure out semi engineering problems, I enjoyed it and my kids are going to be obsessed until they get them all figured out, knowing that I was able to do them eventually.
I urge you all to wait until after work to start down this path as it may well occupy vast amounts of your time reducing efficiency.
Hope you enjoy this issue and as always feel free to share it around.  If anyone would like to be added to the distribution list just drop me a line and you will be added.   Until next month have a great fall, eat some apples, drink some cider, build the first fire of the year and enjoy Halloween. 

David R. Adams
Hurwitz & Fine, P.C.

424 Main Street
Suite 1300 Liberty Building
Buffalo, New York 14202
Phone:  716.849.8916
Fax:  716.855.0874
Cell:  716-553-6901
Email:  [email protected]
H&F Website:


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.

Labor Law Section 240(1)
by:    David R. Adams
(716) 849-8916
[email protected]

9/12/12            McCoy v Abigail Kirsch at Tappan Hill, Inc.
Appellate Division, Second Department
Plaintiff was employed as a truck driver by non-party Atlas Florists.  A wedding ceremony was held which involved the use of a wedding chupah; a canopy under which brides and grooms stand during weddings conducted in the Jewish religious tradition.  The day after the wedding, plaintiff was disassembling the chupah, owned by Atlas.  The chupah was a 10-foot-high device made of pipe, wood, and a fabric canopy at its top.  The frame consisted of metal pipes 10 feet long and 3 inches wide, assembled to each other, and its vertical supports were attached to 4 steel plates on the floor.  Plaintiff worked on disassembling the chupah from a 6 foot-high aluminum ladder supplied by his employer, on which 2 feet allegedly were missing.  Plaintiff was required to use a pipe wrench, a florist knife, wire cutters, and the ladder.  A few minutes into disassembly, while coworker was holding ladder and plaintiff was standing on third rung from top of ladder, it slipped and plaintiff fell to floor, sustaining injuries.
At issue was whether the chupah plaintiff was disassembling at time of accident was a “structure” with scope and meaning of Labor Law § 240(1).  Supreme Court granted plaintiff’s cross-motion for summary judgment, finding chupah was a structure.  The Appellate Division stated courts have applied the term “structure” to several diverse items such as utility pole with attached hardware cables, a ticket booth at convention center, a substantial free-standing Shell gasoline sign, a shanty located within an industrial basement used for storing tools, a crane used for construction, a power screen being assembled at a gravel pit, a utility van, and a window exhibit at a home improvement show.  Conversely, items that have been held to not qualify as structures include temporary decorations to a building used as a set for a TV film, a sign hung from ceiling, commercial dishwasher machines, and, of note, a decorative wooden disc suspended from a ceiling for use as a ceremonial wedding company.
The court held the chupah here is more akin to things and devices which courts have recognized as structures because the chupah consisted of various interconnected pipes 10 feet long and 3 inches wide, secured to steel metal bases supporting an attached fabric canopy.  A ladder plus various hand tools were required to assemble and disassemble the chupah’s constituent parts in a process that would take an experienced worker more than a few minutes to complete.  While the court determined the items here and in Stainislawczyk may have been used for the same ultimate purpose, the items themselves, were, in a structural sense, vastly different; one being a simple one-piece object, and the other being a collection of attached pieces of wood, metal, and fabric.  Thus, the Appellate Division affirmed. 

PRACTICE POINT:   Exactly what constitutes a structure has been the topic of many cases across the state.  It is, as the court points out a case by case situation and is fact specific.  This case seems to me to indicate that, at least in the second department, it is the manner in which the “structure” is constructed which makes the difference.

9/12/12            Rodriguez v D & S Builders, LLC
Appellate Division, Second Department
Supreme Court properly granted summary judgment motions of defendants/third-party plaintiffs, D & S Builders and Di Fore & Sons Custom Woodworking, and third-party defendant D-Best Equipment Corp dismissing Labor Law § 240(1) cause of action on issue of liability as D & S, Di Fore, and D-Best established their prima facie entitlement to judgment as matter of law by demonstrating plaintiffs’ decedent was not exposed to an elevation-related hazard inasmuch as, at the time decedent was struck by a bundle of forms, the forms were not being hoisted or secured, and the decedent was working on a flatbed truck at the same level as the bundle of forms.  Plaintiffs failed to raise a triable issue of fact as their expert affidavit was speculative, conclusory, and unsupported by the facts. 

PRACTICE POINT:   Where, as here, the plaintiff is struck by an object which is not being hoisted or secured 240(1) does not apply.  Additionally the plaintiff was working on the bed of a trailer at the time of the injury and, the Court of Appeals has held that the bed of a truck is not an elevated work area absent proof of the absence of a safety device. 

9/18/12            Dwyer v Central Park Studios, Inc.
Appellate Division, First Department
Plaintiff was employed by third-party defendant DSA Builders, a general contractor.  Defendants Michael and Janet Slosberg retained DSA to renovate and combine their 2 adjoining co-opts.  Defendant/third party plaintiff Central Park Studios owns the apartment building.  On the day of the accident, plaintiff was standing on a ladder, unassisted, attempting to install a large piece of Sheetrock in the ceiling of the Slosberg’s apartment.  Plaintiff was holding the Sheetrock, which was several feet wide, against the ceiling with his left hand.  As he reached with his right hand for the screw gun strapped to his side, the ladder collapsed, plaintiff fell backwards onto the floor, and the Sheetrock slab fell on top of him.  As a result, plaintiff sustained injuries to his right hand, wrist, and arm. 
The Appellate Division held the trial court should have granted plaintiff’s cross-motion for partial summary judgment on the issue of liability under Labor Law § 240(1) because plaintiff’s injuries were proximately caused, at least in part, by the failure to provide proper protection required under the statute.  The undisputed evidence establishes that plaintiff was injured when he fell from an unsecured ladder that collapsed, which according to the court was sufficient to make a prima facie case under § 240(1).  The testimony of DSA’s principal that, after the accident, plaintiff stated he lost his balance raises, at most, an issue of comparative negligence, which would not bar recovery. 
PRACTICE POINT:  The case stands for the proposition that anytime a plaintiff falls from an unsecured ladder due to the fact that the ladder shifts or collapses it is a labor law case.  The explanation is that if the ladder shifts or collapses the ladder was not an adequate safety device and thus the statute is violated.  If the statute is violated then, the court’s logic states, then nothing else including the actions of the plaintiff can be the SOLE proximate cause of the fall and injury.

9/18/12            Fabrizi v 1095 Avenue of the Americas, LLC
Appellate Division, First Department\
Plaintiff, an electrician employed by non-party Forest Electric Corp, was injured while working within premises owned by Defendant.  Dechert leased the premised from 1095, who thereafter hired Magen Construction to gut and remodel Dechert’s space.  Forest was hired by Magen to overhaul the electrical system. 
Plaintiff was injured when he was struck in the hand by a piece of galvanized steel pipe, which had been attached to another piece of pipe by a compression coupling at the ceiling before it fell.  Plaintiff was engaged in moving a pool/pencil box, a device used to access telecommunication wires.  The box was connected to a section of conduit piping running from the floor to the ceiling, as well as to a support system called Kindorf supports.  After cutting the conduit to remove the pencil box, Plaintiff kneeled down to drill into the floor to reposition the conduit and pencil box, when the piece of conduit secured to the other pipe came loose and fell on his hand.
The majority held, contrary to the dissent, the facts of this case are not outside the scope of Labor Law § 240(1).  Plaintiff claims he requested and should’ve been provided with a set screw coupling to secure the conduit pipe to the ceiling and that defendants’ failure to provide this protective device was a proximate cause of his accident.  Defendants assert that in light of the Kindorff support system and compression coupling that attached the conduit to the ceiling, no protective devices were called for.  However, the majority holds neither of these positions was demonstrated as a matter of law and thus, summary judgment was not warranted for either side.
The concurrence addressed foreseeability as an element in all Labor Law § 240(1) cases.  According to the concurrence, for cases like this one involving injury by virtue of a falling object, the dispositive issue for purposes of the statute’s applicability is not, as argued by Defendants, whether an object falls from a permanent structure or whether at the time of injury the object was being hoisted or secured.  Instead, the pertinent and indeed dispositive inquiry is whether it was reasonably foreseeable at the outset that the task assigned to a worker exposed him/her to a gravity-related hazard, so that he/she should have been provided with one or more of the safety devices required by the statute. 
As Plaintiff was engaged in repositioning of the pencil box, the concurrence held this task presented a foreseeable gravity-related risk as it was reasonably foreseeable that when Plaintiff moved the pencil box, the conduit on top of the pencil box, since it was suspended from above, could fall and strike Plaintiff.  Thus, Defendants had a duty to provide Plaintiff with an adequate safety device to prevent the conduit from falling and striking him.  However, the conduit that ultimately fell was in fact secured and held in place by a compression coupling that had attached the falling conduit to the conduit on the floor above.  Moreover, the conduit was also held in place by its attachment to the Kindorf.  Thus, the concurrence held Defendants did in fact provide Plaintiff with a host of safety devices that served to secured the conduit and prevent its fall.  However, the concurrence also found a question of fact exists regarding whether the compression coupling holding the conduit in place failed because it was inadequate or because Plaintiff misused the coupling by removing supports designed to be used in conjunction therewith. 
Nonetheless, the dissent found Plaintiff’s injuries were the direct consequence of his action in disengaging and removing the devices that secured the conduit pipe in place, to wit, the metal strap or clamp that secured the pipe to the Kindorf support and the pencil box upon which the conduit pipe was also attached.  It is undisputed the conduit was firmly secured in place with these devices before the work began.  The dissent held Plaintiff’s injuries were not caused by a lack of protective equipment but, rather, by Plaintiff’s act of removing the supporting devices before drilling, which caused the section of the conduit above the box (now attached to the overhead conduit pipe with only a compression coupling) to fall.  Consequently, there was no violation here of Labor Law § 240(1).
PRACTICE POINT:  The fact that the falling object was not being hoisted or secured is no longer an available defense to a 240(1) claim.  Once again the lack of an expert doomed the defense.  My mantra of retaining an expert to address the adequacy of the available safety device for use during motion practice and/or trial would seem to hold water.  Had the defense provided the court with an affidavit indicating that the manner in which the conduit was secured was appropriate or for that matter that it was not appropriate, the court might not have found for one party or the other.  Money spent on an expert is rarely wasted money.


9/26/12            McClean v 405 Webster Ave. Associates
Appellate Division, Second Department
Plaintiff, an employee of third-party defendant Original Communications, was installing microduct (a protective housing for fiber optic cable) in a dumbwaiter shaft of a building owned by 405 Webster Ave.  While allegedly standing on a dumbwaiter cart in the shaft, he was hit by the counterweight for the dumbwaiter, and allegedly sustained personal injuries, including broken vertebrae in his neck.  The installation of the microduct was performed pursuant to contract between Verizon and Mastec Incorporated, which acted as general contractor.  Mastec subcontracted the installation of microduct to Linear Technologies, which hired Original to perform the actual installation work.
Plaintiff sought to recover for his injuries by alleging that owner, Verizon, Mastec, and Linear violated Labor Law § 240(1) and others.  Plaintiff moved for summary judgment on issue of liability and defendants cross-moved.  Supreme Court granted defendants summary judgment motion.  The Appellate Division affirmed, holding defendants established prima facie that plaintiff was not obligated to work at an elevation to perform the work and plaintiff failed to raise triable issue of fact on that issue.  Thus, defendants could not be liable for failing to provide protective devices to avert injury from a fall. 
PRACTICE POINT:  Several important points here.  First, where a falling object is not a foreseeable risk inherent in the work, no protective device pursuant to labor Law 240(1) is required.  Second the court reiterates that the falling object need not be in the process of being hoisted or secured.  Third that where the plaintiff is not obligated to work at a an elevation to perform his work that the defendant cannot be liable for failing to provide protective devices to avert injury from a fall.


9/26/12            New York Hosp. Medical Center of Queens v Microtech
Appellate Division, Second Department
Defendant allegedly employed two undocumented aliens (“employees”) to perform work on plaintiff’s property.  Employees were injured on the job and defendant provided them with compensation for their injuries pursuant to Workers’ Comp.  The employees also sued plaintiff for damages related to their injuries alleging violations of Labor Law.  Plaintiff brought this action seeking contribution and indemnification from defendant.  Defendant moved to dismiss complaint on ground that plaintiff’s claims were barred by Workers’ Comp. § 11.  Plaintiff asserted defendant failed to verify the immigration status of the employees and this failure constitution violation of Immigration Reform and Control Act (“IRCA”).  Plaintiff argued this violation should result in loss of protections provided to employers under Workers’ Comp.
Supreme Court granted defendant’s motion.  Appellate Division reviewed the Legislative intent of IRCA and determined Congress expressly provided that IRCA would preempt any State of local law imposing civil or criminal sanctions upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.  The Appellate Division, citing the Supremacy Clause, determined the statue does not contain an explicit statement preempting state laws such as NY Workers’ Comp. because the statute was silent as to its preemptive effect on any other state or local laws.  Further, nothing in Worker’s Comp. Law seeks to impose civil or criminal sanctions upon those who employ, recruit, or refer for a fee for employment, unauthorized aliens.  Thus, the Appellate Division affirmed, noting that to accept plaintiff’s contention would not only effectively deny defendant the economic protections it acquired under Workers’ Comp. in return for providing the employees with compensation for their injuries, but it would also relieve plaintiff of its responsibility to ensure a safe construction site for workers under Labor Law.
PRACTICE POINT:  This case examines the interplay between the Workers Compensation law providing that comp is the exclusive remedy for an employee injured on the job and the Immigration Reform and Control Act which was violated by the employer the undocumented employees worked for when they were injured.  The court holds that the IRCA does not preempt the exclusive remedy provided by the comp law and prohibits direct action by an employee against his employer absent a “grave injury”.


Labor Law Section 241(6)

                                                                                    by:    Jennifer A. Ehman
(716) 849-8964
[email protected]

09/26/12          McLean v. 405 Webster Ave. Associates
Appellate Division, Second Department
Plaintiff was installing microduct in a dumbwaiter shaft of a building.  He was standing on the dumbwaiter cart when he was hit by the dumbwaiter’s counterweight.  With respect to Labor Law §241(6), he alleged violations of 12 NYCRR 23-1.8(c) (head protection) and 23-2.5(a)(1) (protection from falling material).
Initially, in concluding that 241(6) applied to these facts, the Court reasoned that this project involved alteration of a building or structure, which satisfied the definition of construction work set forth in 12 NYCRR 23-1.4(b)(23).  Citing the Court of Appeals decision in Joblon v. Solow, it held “[t]he installation of microduct, which extended into apartments through holes in the walls of the dumbwaiter shaft, satisfied the definition of alteration of building or structure.”
With regard to the specific provisions cited, the Court found that 23-2.5(a)(1) was inapplicable because compliance with that provision was not feasible in light of the work to be performed.  However, the Court found a question of fact with respect to the applicability of 23-1.8(c) since there was conflicting proof regarding whether the job was a “hard hat” job.        

Take Away:  The interesting portion of this decision is the Court’s consideration of whether this work constituted alternation of a building or structure.  The Court emphasized that the plaintiff’s work required him to extend wire into different apartments through holes in the wall.  It is not clear in this decision whether plaintiff drilled those holes or whether they were preexisting. 


09/18/12          Dwyer v. Central Park Studios
Appellate Division, First Department
Plaintiff was injured when a ladder he was standing on collapsed.  During discovery plaintiff’s employer produced a ladder in excellent condition which it purported to be the one used by plaintiff on the date of the accident. 
Plaintiff eventually moved for summary judgment on his 241(6) claim, among others.  In support, it submitted an affidavit from the ladder’s manufacturer that, based on the markings on the ladder provided by plaintiff’s employer, that particular ladder was manufactured several years after the accident.
The Court held that due to the conflicting evidence about the condition of the ladder, the trial court properly denied plaintiff’s motion for summary judgment as to that part of his Labor Law §241(6) claim predicated on 12 NYCRR 23-1.21(b)(4)(ii) (requiring all ladder footings to be firm).  Likewise, it found issues of fact as to whether there was a violation of 12 NYCRR 23-1.21(b)(3) (requiring ladders to be maintained in good condition), but dismissed the claim premised on 12 NYCRR 1.21(b)(4)(i) as there was no evidence that the ladder was used as a regular means of access between floor or levels in the building.  


09/12/12          Rodriguez v. D & S Builders, LLC
Appellate Division, Second Department
This appeal arises from a fatal accident in which the decedent was struck by a bundle of concrete forms while working on a flatbed truck.  The Second Department affirmed the finding of the trial court that dismissal of decedent’s estate’s Labor Law §241(6) cause of action predicated upon violations of 12 NYCRR 23-2.1(a)(1) and (2) was appropriate. 
In the Court’s opinion, 12 NYCRR 23-21(a)(1) did not apply to the facts of this case since the decedent’s accident occurred on a flatbed truck, not a “passageway, walkway, stairway or thoroughfare.”  Further, 12 NYCRR 23-2.1(a)(2) did not apply as decedent was not “beneath” the “edge” of a “floor, platform or scaffold” at the time of the accident.


09/11/12          Capuano v. Tishman Construction Corp.
Appellate Division, First Department
Plaintiff, a carpenter, allegedly slipped on a piece of discarded sprinkler pipe, did a “split,” and injured his lower back.  He testified that the room where the accident occurred was dark, with no exterior windows, and that the temporary lighting installed was not working. 
Plaintiff asserted a Labor Law §241(6) claim based on violations of 12 NYCRR 23-1.7(e)(2) (which provides that working areas shall be kept free from the accumulation of dirt and debris) and 12 NYCRR 23-1.30 (which provides that illumination sufficient for safe working conditions shall be provided) and moved for summary judgment.  In opposition to plaintiff’s motion, defendants asserted that plaintiff’s own statement that the lighting was insufficient conflicted with other testimony he provided and was not enough to entitle him to summary judgment. 
The First Department, in affirming the ruling of the trial court, determined that defendants’ attacks on plaintiff’s credibility were insufficient to raise a question of fact as to the adequacy of the lighting.

Take Away:  In this action, it appears that plaintiff submitted an affidavit in support of his motion for summary judgment that the lighting was inadequate.  In opposition, defendants; pointed out to the court perceived inconsistency with regard to plaintiff’s statements about the lighting and other testimony provided. 
When plaintiff moved for summary judgment, he had the burden of submitting admissible evidence that the lighting was insufficient.  He met his burden through his own affidavit.  At that point, the burden then shifted to the defendant to create a question of fact.  What the Court tells us is that merely attacking plaintiff’s credibility was not enough.  In this situation, it would have been advisable for the defendant to have submitted, if possible, a statement of a witness who was present on the worksite and had knowledge of the lighting conditions.  Absent this type of witness, it may have been appropriate to retain an expert to recreate the scene and, if possible, opine as to the sufficiency of the lighting.


09/04/12          Morris v. Pavarini Construction
Appellate Division, First Department
The sole question put before the Court in this decision was whether 12 NYCRR 23-2.2(a), which provides “General requirements. Forms, shores and reshores shall be structurally safe and shall be properly braced or tied together so as to maintain position and shape,” could be applied to anything but completed forms.  In this case, plaintiff was struck when the back wall of a “form,” which was being set up prior to the pouring of the concrete, fell on and injured his hand.  A “form” refers to a mold used in the fabrication of concrete walls. 
The Court held that the operative language in the provision is that forms shall be “braced or tied…so as to maintain [their] position and shape.”  In the Court’s opinion, the erection of the back form was essentially the first step in this process.  “It defies common sense to think that the form could be structurally safe and maintain its final position and shape, if the back wall that anchors the structure is prone to falling over and collapsing because there is no requirement that it be ‘properly braced.’”
Justice Tom dissented from the majority.  He argued that the focus of this provision is on the structural integrity of the form during the placement of concrete. This, he argued, is why the provision requires that the position and shape of the form be maintained by ensuring that it is “braced or tied together.”


Labor Law Section 200 and Common Law Negligence

                                                                                    by:    V. Christopher Potenza
(716) 849-8933
[email protected]

It’s October and Fall is upon us.  The leaves are falling; the Buffalo Bills and New Your Jets are falling, and the appellate courts are back to work addressing workers falling.  The section 200 cases however are quite sparse this month.  Notable about the Edick decision is that it implies that the “storm in progress” defense to negligence actions would be applicable, under the right circumstances, to Labor Law 200 claims.  The McLean decision affirms that a property owner’s duty to make reasonable site safety inspections extends to general contractors with control over the work site.
As a brief recap, Labor Law § 200 codifies the obligation of owners and contractors to provide workers with a safe place to work.  There is a two-prong analysis to establish a claim for negligence/Labor Law § 200 as a plaintiff must:  (1) establish that those charged with liability either created the condition or had actual or constructive notice of the unsafe condition; or (2) establish that a defendant had supervision and control over the work being performed to correct or avoid the unsafe condition. 

9/27/2012        Edick v. General Elec. Co, 2012 N.Y. Slip Op. 06353
Appellate Division, Third Department

Plaintiff was injured when he slipped on a patch of ice and fell while working on a construction project at General Electric in Schenectady. The Court dismissed plaintiff’s Labor Law §§ 240(1) and 241(6) claims, but found an issue of fact in regards to Labor Law 200 and common-law negligence.  Genuine issues of material fact existed as to whether the site owner (GE) had a duty to remove snow and ice from the area where plaintiff fell while working on a construction project.  As to the general contractor (LeChase), questions of fact existed as to whether LeChase had notice of the dangerous condition alleged and/or the authority to control the area where plaintiff's accident occurred.
Defendants also argued the “storm in progress” rule, which affords a party in possession or control of real property a reasonable period of time after the cessation of a weather event in which to take protective measures to correct storm-created hazardous ice and snow conditions.  The court rejected the application of this doctrine on the basis that defendants’ own proof failed to establish-as a matter of law-that there was an ongoing or recently concluded storm at the time of plaintiff's accident.
9/26/2012        McLean v. 405 Webster Ave. Associates., 2012 N.Y. Slip Op. 06286
Appellate Division, Second Department
Plaintiff was injured while installing a microduct (a protective housing for fiber optic cable) in a dumbwaiter shaft. Plaintiff was allegedly standing on the dumbwaiter cart in the shaft and was hit by the counterweight for the dumbwaiter. 
As plaintiff alleged that he was injured as a result of a dangerous or defective condition at the work site, a general contractor may be liable in common-law negligence and under Labor Law § 200 only if it had control over the work site and either created the dangerous condition or had actual or constructive notice of it.   Constructive notice may be imputed to the general contractor if the dangerous condition is visible and apparent and existed for a sufficient length of time prior to the accident to permit the general contractor to discover it and remedy it.  Further, the duty to make reasonable inspections extends to general contractors with control over the work site.
The record revealed that some of the workers involved in the project were apprehensive of danger in the dumbwaiter shaft where the accident occurred as unlike the other dumbwaiter shafts on the site, which had been cleared of all old equipment, this dumbwaiter shaft where the accident occurred still housed a dumbwaiter cart and an old pulley system involving ropes. A supervisor described the ropes as “very fragile.”  Thus, the court found an issue of fact as to constructive notice of the allegedly dangerous condition. 
That’s it for September.  Watch out for falling pumpkins. 


Indemnity Issues in Labor Law

09/28/12  Sniatecki v Violet Realty
Appellate Division, Fourth Department
Plaintiff sustained injury during the course of her employment at a food stand located within the Main Place Mall in Buffalo, New York.  Plaintiff’s injury was caused due to a wet, slippery floor that was resultant from a backup of a drain at her employer’s stand.  Accordingly, plaintiff sued the Main Liberty Group, and Violet Realty, under a basic premises liability claim.
Essentially, plaintiff maintained that the defendants violated their own protocol for cleaning the drains, and were, as such, negligent as a matter of law.
Upon being named in the suit, defendants Main Place and Violet immediately commenced a third-party action against Farara and Roy’s Plumbing.  Farara, apparently, had been retained to remedy the clog.  When Farara could not open the clog, the contacted Roy’s Plumbing who, eventually, opened the drain.
Of importance in the instant matter, Farara and Roy’s both moved to dismiss the third-party claims asserted against them by the defendants.  With respect to the claims of contractual indemnification and failure to procure insurance, the Court noted that the lack of a formal contract between the parties precluded any contractual award. 
In addition, the Court also affirmed the dismissal of common law indemnity claims against Farara and Roy’s.  In so holding, the Court noted “plaintiff's accident was not attributable to [their] [Farara and Roy’s] negligent performance or nonperformance of an act solely within [their] province"
Finally, defendant’s claims for common law contribution were dismissed where, as here, there was no evidence that Farara and/or Roy’s assumed any duty of care to the plaintiff.  Recall that, in the current instance, Farara and Roy were simply service contractors.  As such, under the Court of Appeals’ long standing Espinal decision, there is no duty unless the service contractor (a) launches an instrument of harm; (b) totally displaces the owner’s duty to maintain the premises or (c) where the owner detrimentally relies upon the service contractor.  As none of those situations were in play in the instant case, it followed that the Fourth Department summarily dismissed defendant’s common law contribution claims.

09/28/12  Genesee/Wyoming YMCA v  Bovis Lend Lease LMB, Inc.
Appellate Division, Fourth Department
In this case, the YMCA retained Bovis to assist its efforts in constructing a new pool.  Bovis’ role in the project was “to review and approve design, constructability and materials used to construct the roof and insulation systems."  The YMCA subsequently retained Whitney East to serve as the General Contractor for the job, and Thomas Associates to serve as the architect.  Although the evidence suggests that Whitney expressed concerns over the design and implementation of the project, Bovis nonetheless approved Thomas’ plans. 
Naturally, as there is a lawsuit now at issue, the project had major defects which resulted in additional costs and expenses to the YMCA.  The YMCA commenced the instant action alleging that Bovis failed to perform its obligations under the contract, and that Bovis was unjustly enriched because it was paid for its expertise in reviewing drawings and proposals, and accordingly it should have spotted the issues related to the design plans. 
After being named as a defendant by the YMCA, Bovis commenced a third-party action against Thomas for common law indemnity.  Thomas immediately moved to dismiss the action by arguing that Bovis was not entitled, as a matter of law, to an award of common law indemnity.  The Court agreed by noting that the theory of common law indemnity permits a non-negligent party to shift its tort exposure to the culpable party.  Where, as here, the allegations against Bovis were due to its own negligence and failure to honor to the terms of its own contract, the Court noted that Bovis did not face vicarious liability due to the actions or inactions of Thomas. Rather, Bovis only faced its own exposure for its own negligence, and there was no right common law indemnity accordingly. 


09/28/12  Converse v Dole Food Co., Inc. 
Appellate Division, Fourth Department
Plaintiff, a truck driver for Leonard’s Express sustained injury when the truck she was operating overturned due to an improperly loaded trailer.  The trailer, which was full of bananas, was apparently loaded at the direction of Dole Fresh Fruit.  Upon being named in this suit, Dole commenced a third-party action against Leonard’s which sought contractual indemnification.
The contract, which required California law be applied, provided that Dole was entitled to indemnification from Leonard’s.  Although, as the Court noted, under California law a party may be indemnified for its own negligence, it must explicitly reference that intent in the contract.  Where there is no indication that one party is assuming the indemnity of another party’s own negligence, Courts are instructed to strictly construe the breadth of the clause at issue. 

09/26/12  NY Hosp. Med. Ctr. Of Queens v Microtech Contracting Corp.
Appellate Division, Second Department
Defendant allegedly employed two undocumented, illegal workers at a jobsite owned by plaintiff NY Hospital.  When one of the two workers was injured at the site, NY Hospital was named as a defendant in a Labor Law action.  NY Hospital responded by asserting a common law indemnity/contribution claim against the injured worker’s employer Microtech.
Microtech moved to dismiss the claim on the basis of Section 11 of the Workers’ Compensation Law.  As there was no grave injury in the instant case, Microtech argued that it was protected from common law indemnity claims. 
In response, plaintiff argued that the injured worker had been employed in violation of the Immigration Control & Reform Act (ICRA) which the United States Congress had passed in the 1980’s.  Specifically, the ICRA provides for civil penalties against employers of undocumented, illegal, workers.  In addition, the ICRA also pre-empts all State and Local laws which purport to assert civil penalties against employers who hire undocumented, illegal workers.  Therefore, plaintiff reasoned that the ICRA pre-empted Section 11 of the Workers’ Compensation law, and Microtech had no statutory protections against a common law indemnity claim.
While the Supremacy Clause of the United States Constitution permits federal law to pre-empt state law, the Appellate Division noted that the pre-emption doctrine must be strictly construed and applied only where the intent of Congress is unmistakable.  Quite simply, the Court was unwilling to permit the ICRA to pre-empt New York’s ability to control occupational health and safety laws.  This was particularly so where, as here, the law which was alleged to be pre-empted did not even provide for penalties related to the hiring or undocumented workers.  Rather, Section 11 is only based upon the protections afforded to all workers employed in New York.   In light of the foregoing, plaintiff’s claim was dismissed in its entirety pursuant to Section 11 of the Workers’ Compensation law. 

09/18/12 Dwyer v Central Park Studios
Appellate Division, First Department
Plaintiff sustained injury during the course of his employment with DPS.  Prior to the incident, DPS had been retained by Michael and Janet Slosberg to perform some construction work in condo they owned.  The condo was located in a building owned by Central Park Studios (CPS).
Plaintiff commenced an action sounding in Labor Law against CPS.  In turn, CPS commenced a third-party action against the Slosberg’s therein asserting a claim for contractual indemnification.  The Slosberg’s opposed the contractual indemnification claim by asserting that the clause in question potentially provided CPS with indemnification for its own negligence.  Thus, the Slosberg’s argued that the clause was in violation of GOL 5-322.1 and was void as a matter of law.
As noted by the Appellate Division, the trial court previously dismissed Mr. Dwyer’s Common Negligence/Labor Law 200 claim against CPS.  The result of which meant that CPS was not negligent.  Accordingly, where, as here, the only liability facing CPS was vicarious in nature, the prohibitions of GOL 5-322.1 were inapplicable. 

                                                                                    by:    Steven E. Peiper
(716) 849-8995
[email protected]

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