Labor Law Pointers - Volume I, No. 2

Labor Law Pointers

Volume I, No. 2
Wednesday, December 7, 2011

A Monthly Electronic Newsletter Addressing
New York State Labor Law
 Decisions and Trends


From the Editor:

Welcome to this month’s edition of Labor Law Pointers, our second edition.  Looks like we survived opening night and the show will go on.  I am pleased to report that not only is there going to be a second edition, but that we are welcoming new subscribers.  Many people who were forwarded last month’s edition actually seem to have enjoyed it and have asked to be added to the subscription list.  I am, of course, a bit wary of anyone who actually admits that they enjoy reading about Labor Law, fearing that they may suffer from a similar affliction as mine. 
Thanks also to those of you who sent me emails or gave me a call to comment on last month’s newsletter or to discuss a specific case or issue.  When a new decision comes out I invariably wind up talking to my fellow Labor Law addicts (there are several right here in the office) about the decision.  In essence, what this newsletter allows me to do is to widen that circle and discuss new cases and developments with more people.  The input and feedback I receive gives me added insight into our area of practice and I hope helps all of you keep abreast of the current status of the case law, admittedly a moving target.  For those of you I do not yet know personally, I am always available to discuss any case or issue, and actually enjoy it. 
I have also had a few inquiries about our Labor Law seminar.  If anyone has interest in having us provide your group with additional training in the handling of a Labor Law case, feel free to contact me to set up a time so we can come and visit.  Our presentations are not long and can be tailored to any specific issue or level of complexity you feel would be most helpful.
Now, on to business.  For the second month in a row we have a Court of Appeals case addressing a fundamental issue of the Labor Law.  In Salazar, the Court addresses the issue of whether or not the lack of a safety device is a violation of the Labor Law where the use of the safety device would be contrary to the task being undertaken.  Defending this issue is not similar to the sole proximate cause defense, but rather addresses the more basic question of does the Labor Law even apply in such a situation.
There are several other interesting cases which, while not substantively altering the status of the law, allow us to reinforce the application of the law to some more common sets of facts.  We hope you enjoy this edition, maybe pick up a pointer or two, and look forward to next month’s edition.  You will note that I have inserted hyper-links for all cases leading you to the New York Official Reports site.  If anyone has trouble obtaining the full text of the decision, feel free to drop me a line and I will send it to you right away.
I would be remiss if this December 7th edition of Labor Law Pointers did not remember why it is “a date which shall live in infamy”.  Seventy years ago today, the United States suffered an attack which catapulted our nation into a war which cost millions of lives around the world.  Some of us are old enough to know someone who served in that war and most of us have a connection to someone who served and all too often sacrificed for us all.  Just a thought for today -- thank a Veteran. 
If you want to print this edition I would recommend printing the attached version as it will print much better.

 Thanks for reading.

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

424 Main Street
Suite 1300 Liberty Building
Buffalo, New York 14202
Phone:  716.849.8998
Fax:  716.855.0874
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.


11/21/2011      Salazar v Novalex Contracting Corp.

Court of Appeals

In this 4-3 decision from the Court of Appeals, the plaintiff was injured in the basement of a building which was being renovated.  Novalex was the general contractor of the project.  The plaintiff was working in the basement where the concrete for the floor was being fed through a window and into wheelbarrows to be spread or “raked” over the entire floor of the building.  The basement floor had a trench system for piping, all of which was to be filled with concrete creating a level and smooth floor with the pipes under the concrete.  The wet concrete, when poured into the basement, would fill the trenches.  As the plaintiff was “raking” the wet concrete to level the floor, he was looking ahead at what he was “raking” and stepped backwards into a trench partially filled with wet concrete.  His foot hit the bottom of the trench and as he attempted to pull his leg out he injured himself.
The trench the plaintiff stepped into was about two-feet wide and three- to four-feet deep.  The trench had no railings, barricades or cover around or over it.  Plaintiff sued, claiming a violation of Labor Law §§ 240(1) and 241(6).
The trial court granted Summary Judgment to the defendants, dismissing the plaintiff’s complaint in its entirety, and the First Department reversed, denying the defendants’ motions for Summary Judgment on Sections 240(1) and 241(6) and reinstating those claims with one dissent.  The Appellate Division granted leave to the defendant, certifying the issue to the Court of Appeals.
The Court finds that, as liability under Section 240(1) depends on whether the plaintiff’s task creates an elevation-related risk of the type that the enumerated safety devices protect against, in order for Section 240(1) to be triggered, the plaintiff would had to have been able to be protected from injury flowing from the application of gravity to an object or person by the use of an adequate scaffold, hoist, stay, ladder, or other protective device.
What the Court in Salazar decides is that, in this case, the installation of a protective device would be “contrary to the objectives of the work plan”.   The Court holds, in plain and direct language, that, “Put simply, it would be illogical to require an owner or general contractor to place a protective cover over, or otherwise barricade, a three- or four-foot deep hole when the very goal of the work is to fill that hole with concrete.”
The Court continues to address facts of this case and holds that the Labor Law “should be constructed with a common sense approach to the realities of the workplace at issue.”  This would appear to signal an acceptance by the Court of the fact that certain functions or tasks simply cannot be accomplished with any type of protective device in place.  It will remain to be seen what other types of tasks are considered by the Court to, by their very nature, preclude the use of a safety device. 
The Court also dismissed the Section 241(6) claims applying the same rationale, that “covering the opening in question would have been inconsistent with filling it, an integral part of the job.”
It is important to note that this was a 4-3 decision, and in fact the second such 4-3 decision in a Labor Law case within 30 days, coming on the heels of the Wilinski decision discussed in our last issue.  Note that the Salazar decision was authored by Judge Pigott, the author of the dissent in Wilinski.  In fact, the Salazar majority refers to the Wilinski decision as the basis for the “contrary to the work plan” argument.  In Wilinski the majority found that securing the pipes would not have been contrary to the work plan and, thus, the failure to do so was a violation of the Labor Law.  The majority in Salazar utilized that same language to hold that if the use of the safety device is contrary to the work plan, it is not a violation of the Labor Law not to use such a device.                                                                                                                        
The swing vote, it appears, in both the Wilinski and Salazar decisions is Judge Smith, as he voted with the majority in both cases.  Obviously, we have not seen the last of these issues, and look forward to reviewing and analyzing ongoing decisions as they are applied in the departments. 
PRACTICE TIP:  For now, the point to be taken from this case is that the retention of an expert to explore the propriety of utilizing protective devices to perform certain tasks may provide the defendant, and the plaintiff for that matter, with the necessary ammunition to swing a motion addressing these issues in their favor.

11/1/2011        In re East 51st Street Index. Crane Collapse Litigation
Appellate Division, First Department
This case addresses the necessary elements to establish a sole proximate cause defense.  Here, as you may have been able to determine from the caption, the plaintiff was injured when a crane collapsed.  The Court held that, as it was undisputed that the plaintiff was injured due to a crane collapse, a prime facie Section 240(1) case was established.  The defense argued that the plaintiff was the sole proximate cause of his own injuries.  The Court reaffirms in their decision that the existence of unused safety devices at the work site is not, in and of itself, sufficient to find the plaintiff’s failure to use them, or to misuse them for that matter, the sole proximate cause of the accident and ensuing injury.  To establish that the plaintiff was the sole proximate cause of his own injuries, the defense must establish that there were appropriate safety devices available at the work site, that the plaintiff knew that such devices were available, that he was expected to use them, and that “for no good reason” the plaintiff failed to use the devices and that it was plaintiff’s choice not to use the device that caused the accident and injury.

PRACTICE TIP:  It is of critical importance to anyone dealing with Labor Law cases to know these elements of the sole proximate cause defense.  Appropriate documentation of instruction -- often from safety meetings (with sign-in sheets) regarding the use of safety devices such as harnesses and lanyards appropriately attached to a safety line -- can be essential to a successful defense.

11/10/2011      Brownell v Blue Seal Feeds, Inc.
Appellate Division, Fourth Department

This case once again addresses the applicability of Section 241(6) to individuals falling from the bed of a trailer.  Plaintiff was standing on the bed of a trailer on top of a four-foot pile of rebar to determine the best method to unload it when the load shifted, throwing him from the truck to the ground.  The court held that, “It is well established that the surface of a flatbed truck does not constitute an elevated work surface for purposes of Labor Law § 240(1).”

Plaintiff sought to argue that, as he was not on the bed of the truck but rather on top of the four- foot pile of rebar, Section 240(1) should apply.  The Court disagreed, finding that “standing on [a pile of rebar] rather than standing on the bed of the truck does not move this case from one involving the ordinary dangers of a construction site to one involving the special risks protected by Labor Law § 240(1).”
Plaintiff next sought to argue that is was the force of gravity which caused the pile of rebar to shift, causing the plaintiff to fall, and that, thus, Section 240(1) was violated.  The Court held that as the pile of rebar shifted in a horizontal direction, it was not caused by gravity, and the bundle of rebar was not being hoisted or secured at the time, so Section 240(1) did not apply.
PRACTICE TIP:  The basic point to remember from this case is that, in most instances, a fall from the bed of a trailer will not be considered a violation of Section 240(1), as the surface of a flatbed truck does not constitute an elevated work surface for the purposes of Labor Law § 240(1).

11/1/2011        Allen v City of New York
Appellate Division, First Department

A quick case with a very short decision where the First Department held that plaintiff, who was installing prebuilt scenery panels as a backdrop for an amusement ride for a carnival, was not entitled to the protection of Section 240(1).  The Court found that installing prebuilt scenery did not involve the erection of a structure as required for Labor Law § 240(1) to apply.

The courts have always been very broad in their interpretation of what constituted a structure for Section 240(1) cases, but it appears this one just went too far.

11/10/2011      Cassidy v Highrise Hoisting & Scaffolding, Inc.
Appellate Division, First Department

In this unanimous decision, the First Department upheld the trial Court’s ruling.  The plaintiff leaned against a temporary loading dock railing at a construction site which failed, causing the plaintiff to fall to the ground off a temporary loading dock (a height of between 48 and 60 inches), sustaining injury to his neck and back.  The Court held that the plaintiff had established entitlement to Summary Judgment on 240(1), as (a) the plaintiff was involved in construction (work protected by Labor Law § 240(1)), (b) the removable railing was intended to protect the plaintiff from gravity related hazards, and (c) the device failed, resulting in the plaintiff’s injury.  


Labor Law Section 241(6)

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


12/1/11            Battease v. Harrington

Appellate Division, Third Department

Plaintiff fell from a scaffold while siding a barn located on defendants’ property.  Defendants used the barn to store their personal belongings, but pens were attached to the barn that served as kennels for dogs bred and raised by defendants.  Defendants moved to dismiss based on the homeowners’ exemption, which provides that “owners of one- and two-family dwellings who contract for but do not direct or control the work” will not be liable under Labor Law §§ 240(1) and 241(6) for injuries to workers. 

The trial court found that plaintiff’s work at the time of his injury was related to defendants’ business breeding dogs and not any effort to enhance their residence; nevertheless, because dog breeding was a hobby and not a commercial operation, the exemption still applied.  In reversing the trial court’s decision and finding a question of fact, the Appellate Division held that defendants had not established that the “site and purpose” of the work being performed by plaintiff was for their residence and not for a commercial enterprise they operated on their premises.  It was noted in the decision that plaintiff was installing siding on an area of the barn designed to provide cover from the elements for the dogs that were housed in the kennels.  Further, the Appellate Division noted the fact that the dog breeding business filed tax returns reinforced its finding of a question of fact.   

TAKE AWAY:  In adopting the homeowners’ exemption, the Legislature recognized that while property owners often have a greater interest in the project and superior economic position, this is not always the situation.  Rather, in many instances, such as one-family dwellings, the owners may be in a less dominant position than the particular subcontractor they engage. 

Further, the Court of Appeals has held that the existence of both residential and commercial uses on a property does not automatically disqualify a dwelling owner from invoking the exemption.  Instead, the availability of the exemption turns on the site and purpose of the work.  For example, a homeowner who hires someone to paint their living-room ceiling should be afforded the benefit of the exemption even if the homeowner also maintains a business on the property.

Here, due to the fact that the barn stored personal belongings but the section plaintiff was working on when he fell was to cover the dogs, it appears the Court was unable to make a determination, as a matter of law, as to the applicability of the exemption. 


11/18/11          Letts v. Globe Metallurgical, Inc.

Appellate Division, Fourth Department

This is a very fact specific case.  Plaintiff was injured when a 2,400 pound steel plate that he had welded into place fell on him, pinning him to the floor.  Plaintiff relied on Industrial Code regulations 12 NYCRR 23-2.3(a)(3) and (b) as support for his Labor Law § 241(6) claim.  Both sections address structural steel assembly.  Specifically 23-2.3(a)(3) requires that loads shall not be placed on open web steel joists until such joists are permanently located and secured, including the installation of required bridging, and 23-2.3(b) bars the weakening of load-bearing structural steel members by holing, cutting or other means (without the advice of an engineer). 

In dismissing plaintiff’s 241(6) claim in its entirety, the Court held that plaintiff had not established the applicability of either regulation.  


11/15/11          Torres v. Forest City Ranter Companies, LLC

Appellate Division, Second Department

This decision addresses a regulation routinely cited by plaintiffs who trip and fall on construction sites.  Here, plaintiff was injured when he stepped on a door that was lying on some loose pipes.  Industrial Code 12 NYCRR § 23.17(e)(2) - Tripping and Other Hazards, provides that working areas “shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed.”  

Defendant challenged the application of this regulation by arguing that the material which caused plaintiff’s injury was integral to the work being performed, or, in other words, it was “consistent with” the work being performed.  In reversing the trial court’s grant of summary judgment, the Appellate Division cited testimony that plaintiff and his coworkers did not use the door or the pipes in their work.  Although plaintiff had seen the doors installed elsewhere in the building, there were no doors installed on that floor yet. 

TAKE AWAY:  In trip and fall cases, it is important to consider what plaintiff fell on and whether the item was part of his or his co-workers’ work in that area.  


11/3/11            Bajor v. 75 E.  End Owners Inc.

Appellate Division, First Department

After the plaintiff severed his thumb, middle and index fingers while using a table saw that lacked a safety guard, he brought this action alleging that defendants violated Section 23-1.12(c)(2).  This section requires that power-driven saws other than portable saws be equipped with a safety guard.  In affirming the trial court’s grant of summary judgment in favor of plaintiff, the Court noted the mere fact that a table saw could be moved from room to room did not render it portable.  Further, the Court stated that since Plaintiff was cutting a six- to seven-foot length of wood when he was injured, he was engaged in “ripping”; thus, Section 23-12(c)(3), which requires every table saw used for ripping to be provided with a spreader securely fastened into position, was also violated. 

In an aside by the Court, it noted that although comparative negligence constitutes a valid defense to a Labor Law § 241(6) claim, here, summary judgment could be granted in favor of plaintiff as defendants had not established any comparative negligence on his part.

TAKE AWAY:  The most interesting part of this decision is the Court’s determination based only on the papers that plaintiff was not negligent.  Although this decision does not include many facts, one would think that plaintiff would have some responsibility for the incident, as he was the one operating the power saw.

Labor Law Section 200 and Common Law Negligence

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

Holiday Greetings from the somewhat less interesting world of Labor Law § 200 jurisprudence.  Perhaps the courts were too tired after camping out for their doorbuster iPads to address any substantive Labor Law § 200 issues last month, as there is just not much news to report.  Writing this column is like shopping for a turkey on Thanksgiving morning; even if you find one, it’s not going to be that tasty. 

To recap, Labor Law § 200 simply 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.

Labor Law § 200 jurisprudence is now fairly well defined, mostly fact dependent, and there is little ability to test the breadth of the statute. 

If that left-over stuffing has finally gone bad, at least here is a little something to nibble on:

11/18/11          Letts v Globe Metallurgical, Inc.

Appellate Division, Fourth Department

Plaintiff was injured when a 2,400-pound steel plate that he had welded into place fell on him.  The Fourth Department upheld the denial of the defendant plant owner’s motion for summary judgment on Labor Law 200, finding that the evidence offered by defendant plant owner raised an issue of fact whether defendant, through one of its agents, had input into the method used by plaintiff in carrying out the injury-producing work.


11/10/11          Cassidy v Highrise Hoisting & Scaffolding, Inc.

Appellate Division, First Department

Plaintiff fell while leaning on the railing of a temporary loading dock.  The Court dismissed the Labor Law § 200 claim as there was no evidence that defendants were on notice that the rail, which had been detached for a delivery made within 1/2 hour prior to plaintiff's fall, was improperly reattached.


11/10/11          Brownell v Blue Seal Feeds, Inc.

Appellate Division, Fourth Department

This case is interesting only because the Court distinguishes the Labor Law § 200 claim from a general negligence claim.   Plaintiff was injured while standing on a pile of rebar stacked on the truck delivered to the site by defendant Hertel Steel.  The lower court dismissed the Section 200 claim against Hertel Steel because it was not an owner or general contractor, but was merely responsible for fabricating and delivering the rebar to the worksite and did not exercise any supervision or control over the worksite.  The Fourth Department, however, re-instated the common-law negligence claim against Hertel Steel, finding that issues of fact existed as to whether its employees were negligent in the bundling, loading or securing of the rebar, and whether such negligence was a proximate cause of plaintiff's injuries.


11/16/11          Shaw v. Resnick 75 Park Place, LLC

Supreme Court, Kings County

Plaintiff was fixing a leaky roof and slipped on wet roofing paper.  The trial court dismissed the common law negligence/Labor Law Section 200 claim because it “is well settled that the common-law duty to provide employees with a safe place to work does not extend to hazards that are part of, or inherent in, the very work the employee is to perform or defects that the employee is hired to repair.”

That’s all the 200 news that’s fit to print this month.  Enjoy your holiday season! 

FYI, we represent many retail outfits, so be safe and don’t take the term “doorbuster” literally.
Indemnity Issues in Labor Law

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

Back for more?  We’re certainly glad to have your attention.  Although there is nothing ground shaking in this month’s offerings, the below cases do establish that the Appellate Courts are starting to fill in some of the questions left by the Court of Appeals’ decision in McCarthy v Turner Construction Co.  To that end, we would encourage you to take a look at the Martinez decision that we review below. 

That’s it for this month.  Best wishes for a safe and joyous holiday season.  We’ll see you in 2012. 


11/22/11          IMP Plumbing & Heating Corp. v 317 E. 34th St., LLC

Appellate Division, First Department

Plaintiff served as a plumbing subcontractor at a construction project owned by New York University.  When plaintiff was not paid, it asserted a lien against NYU and the defendant general contractor, 317 East.  Upon service of the action, NYU appeared and immediately asserted a cross-claim against 317 East for contractual and common law indemnification. 

Apparently, 317 East never appeared in either the main party action or in response to NYU’s cross-claims.  More than a year later, NYU moved for a default judgment against 317 East on the basis of the aforementioned cross-claims.  The trial court denied the motion on the basis that NYU was deemed to have abandoned its cross-claims by waiting more than one year to assert the default motion.

In reversing the trial court, the First Department noted that the one year standard for abandonment of defaults was not applicable to cross claims until there had been a finding of liability against the proposed indemnitee.  Where, as here, there had been no finding of liability, the time to pursue a default against 317 East had not yet ripened.  

11/3/11            Martinez v 342 Property, LLC
Appellate Division, First Department

This incident arises from a workplace accident at a project owned by 342 Property, LLC.  The general contractor at the site was Flintlock Construction Services.  As part of its duties as the general contractor, Flintlock retained Site Safety to provide, as their name might suggest, “site safety management services, including maintenance of an onsite safety manager during normal business hours and whenever requested by Flintlock, to conduct weekly safety meetings and periodic safety inspections.” 

Flintlock, upon being named as a defendant in the instant lawsuit, asserted claims for common law indemnification/contribution and contractual indemnification against Site Safety.  Site Safety then moved for summary judgment on the basis that it did not actually supervise, direct or control plaintiff’s work at the time of the incident.  Rather, as offered by Site Safety’s supervisor at the jobsite, it only performed the duties specifically enumerated in the contract.  There was no duty, under the contract, for Site Safety to supervise anyone’s work.

In opposition, Flintlock’s supervisor averred that Site Safety had the authority to “stop work that was being performed in an unsafe manner.”  In addition, Flintlock offered evidence that he had seen someone from Site Safety stop work at the jobsite previously. 

On balance, the Appellate Division noted that, at most, Site Safety had the authority to step in and stop work that was being performed in an unsafe manner.  However, it did not possess any responsibility to directly supervise, direct or control the work of any worker at the jobsite.  As such, Site Safety had no Labor Law § 200/Common Law Liability. It followed that Site Safety also had no common law indemnity obligations to Flintlock where it was not actually negligent.

Further, in line with the above-analysis, the Appellate Division also noted that Site Safety had no contractual indemnification obligations to Flintlock.  The contractual indemnity provision at issue only protected Flintlock from claims which arose due to Site Safety’s negligence.  As demonstrated above, Site Safety had no active negligence and, therefore, had no contractual indemnity obligations.

PEIPER’S POINT – General supervisory authority, standing alone, is not enough to give rise to a Common Law Indemnity claim.  Take a look at McCarthy v Turner Construction Co. from our last issue.  

11/3/11            DiStefano v. Kmart Corporation International
Appellate Division, First Department

Plaintiff commenced the instant action after she allegedly sustained injury at a Kmart store.  Kmart then asserted a cross-claim for contractual indemnification against Thyssenkrupp Elevator Corporation pursuant to a clause found within the Kmart/Thyssenkrupp Contract.  Importantly, the provision at issue only provided Kmart with a right of indemnification where the incident “arise[s] out of [or] in connection with [TEC's] performance or failure of performance’ of its work under the agreement.”

In the instant case, Kmart’s own expert submitted a report which stated that plaintiff’s own negligence was the sole cause of the incident.  In addition, Kmart’s own witnesses acknowledged that the elevator in question did not malfunction.  Accordingly, where Kmart could not establish (and in fact denied) that the elevator was working improperly, its claim for contractual indemnification was dismissed.

PEIPER’S POINT - Read the Contract, Read the Contract, Read the Contract.  (Where have we heard that before?)  I also add, Read the Contract preferably before settling on your litigation strategy moving forward.  Creative liability arguments that may not have a great chance of success become doubly troublesome where they impinge upon an opportunity to shift exposure to another party via an indemnity claim.

11/3/11            Bajor v. 72 E. End Owners Inc.
Appellate Division, First Department

As noted above, this lawsuit arose from a workplace accident involving a table saw that lacked a safety guard, resulting in a Labor Law § 241(6) claim.  Upon being named as a defendant, 72 East End Owners asserted a cross-claim for common law indemnification against the general contractor Renotal.  However, 72 East End Owners’ subsequent motion for summary judgment was denied because Renotal only had “general supervisory and coordinating authority at the worksite, but did not supervise or control the work performed.”

PEIPER’S POINT – Sound familiar?  Take a look at McCarthy v Turner Construction Co. from our last issue.  


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

Labor Law Pointers
David R. Adams

Associate Editor

V. Christopher Potenza

Associate Editor
Steven E. Peiper

Associate Editor

Jennifer A. Ehman

Labor Law Team
David R. Adams, Team Leader
[email protected]
Dan D. Kohane
[email protected]
Michael F. Perley
[email protected]
V. Christopher Potenza
[email protected]
Steven E. Peiper
[email protected]
Cassandra A. Kazukenus
[email protected]
Jennifer A. Ehman
[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


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