Labor Law Pointers

Volume I, No. 4
Wednesday, February 1, 2012

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

 

From the Editor:

Well I promised you all this would be out the first Wednesday of each month and I am an hour late.  The danger of lying down with your six year old to get him to sleep quickly so you can get back to work is once again brought to mind.  For those of you waiting at your computer for the issue to arrive prior to midnight I apologize, for those of you reading this as you arrive in the morning at your desk in the morning I should have kept quiet.  It is really to those of you I just woke up because your blackberry gave that distinctive “DING” your spouse hates in the middle of the night that I am really apologizing.
Welcome to our new subscribers, as a reminder we are available to answer any and all questions on this and many other topics and are just a phone call or email away.  As a reminder if you are going to print or forward to someone I recommend using the attached version, it is much easier with a word document.
Several interesting decisions this month but we were coming to expect at least one from the Court of Appeals each month and got none this month.  Do not fear there are several in the pipeline, including the Dahar decision which I anticipate will be out for next issue.
Once again we have our collection of sole proximate cause cases, defective ladder cases, a falling cinder block case and a dropped pipe case.  No blockbusters this month but some interesting wrinkles.  The third department separates the risks faced where the plaintiff is lowering a window he removed to the first lowering risk and then the climbing down risk, an interesting decision below.
I have been contacted by several subscribers, whom I suspect had discussed this subject before contacting me, who wanted me to add a new lawyer joke at the beginning of each issue.  They said that it would liven up an otherwise boring subject.  While I do not agree that the subject matter is boring, and I hope that our analysis and reporting is not boring either, I did agree to try it out.  I have decided to accept lawyer jokes submitted for inclusion in the next issue.  If nothing else it is less that I have to write.  The problem with lawyer jokes, I was told, is that lawyers do not find them funny and no one else thinks they are jokes.
Without further delay, here are this month’s cases for your reading pleasure.
David
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:  www.hurwitzfine.com

 

Labor Law Pointers is published the first Wednesday of each month.  If you know of others who may wish to subscribe to this free publication, please feel free to forward it.  If you wish to subscribe or unsubscribe, please send an e-mail to [email protected] or call the Editor/Labor Law Team Leader David R. Adams directly at (716) 849-8900.
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Labor Law Section 240(1)

by:    David R. Adams
(716) 849-8998
[email protected]
                                                                                               

1/31/12            DeCarlo v Bergeman
Appellate Division, Fourth Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_00557.htm
Plaintiff fell from a ladder while engaged in a protected activity.  This case, while very short on facts, is interesting as the fourth department, in spite of holding that the plaintiff submitted evidence that the ladder was defective in “several respects” affirmed to ruling below denying the plaintiff Summary Judgment motion for partial Summary Judgment on the 240(1) issue holding that the plaintiff “failed to establish that any of those defects caused him to fall.”  This case points out a basic tenant of Labor Law motion practice, that to win a motion a plaintiff must always establish that it the “absence or defect in a safety device was the proximate cause of his or her injuries.”
This is not a sole proximate cause defense, but rather a failure by plaintiff’s attorney to establish an element of the claim.  It also points out the potential for a defendant to challenge the plaintiff’s claim and provides us with a line of questioning for the plaintiff’s deposition regarding the cause of the fall.  Do not get too excited about this one, most plaintiff’s seem to know to say that the reason they fell was that the ladder “shifted” under them or “kicked out” causing them to fall.  This invariably leads to Summary Judgment for the plaintiff on 240(1).

1/26/12            McGill v Qudsi
Appellate Division, Third Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_00446.htm

Plaintiff was doing periodic maintenance on a building, replacing a window on the second floor.   The plaintiff climbed a ladder, removed the window and was climbing back down the ladder sliding the window along the ladder as he climbed down.  When 8 to 10 feet off the ground the plaintiff fell, landed on his back with the window on top of him and was injured.  The work the plaintiff was doing was a protected activity was the type of elevation-related risk 240(1) was intended to protect.  The issue for the court was whether the ladder, which had no defects, did not slip or tip and was not improperly placed, was an adequate safety devise.
The ruling from the court is interesting; I have never seen approach before.  The court actually separated the actions of the plaintiff, and thus the appropriate safety devices, into two separate categories or “risks”.  First the court looked at the risk of plaintiff climbing down the ladder and held that as the ladder was not defective or improperly placed, that it was an appropriate safety devise and thus no violation of the Labor Law existed relative to that risk.  Second the court looked at the task the plaintiff was seeking to perform, that of lowering a window to the ground.  The court held that the actions of lowering a four foot by five foot, 40 to 50 pound window to the ground was a separate risk and that the defendant did not provide any safety devices to protect the plaintiff while lowering the window.  As the lack of a safety devise appropriate for the risk of lowering of a window is, by definition, a violation of the statute, and thus a proximate cause of the plaintiff’s injury, it does not matter what caused the plaintiff to fall.  Plaintiff’s own misstep, even on an appropriate safety devise for reaching the second floor and descending from there, could never be the sole proximate cause of his injury where there is a violation 240(1).

1/24/12            Torres v Our Townhouse
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_00418.htm

Plaintiff fell while climbing down from a 12 foot high sidewalk bridge by using a nearby tree.  The defendant’s contention was that there was a ladder available for the plaintiff to use under a truck at the work site and that his failure to use it was the sole proximate cause of the plaintiff’s injuries.  The court held that as there was no evidence presented that the plaintiff knew where the ladder was or that he knew he was expected to use it and for no good reason chose not to do so that the plaintiff’s own actions were not the sole proximate cause. 

It is important to always remember that to prove a sole proximate cause defense you must establish not only that there was available an appropriate safety devise but also that the plaintiff knew where the devise was and that he or she was expected to use it.

 

1/19/12            Henningham v Highbridge

Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_00298.htm

Plaintiff was working on a construction site dropping debris down a plastic chute from the roof of a six or seven story building when the chute became clogged and plaintiff went down to the second floor to try and unclog it.  After yelling up to his co-workers that he had fixed the chute plaintiff was struck in the head with a cinder block.  The court held that ’[F]alling object' liability under Labor Law § 240(1) is not limited to cases in which the falling object is in the process of being hoisted or secured" and thus applied to debris being thrown down from the roof, whether within a chute of not.

  There was some conflicting testimony as to exactly where the plaintiff was at the time he was struck, either with his upper body inside the chute or leaning just barely outside the window, but in the end the court held that his exact position was not relevant as had the plaintiff been provided with an appropriate safety devise, here the court looks at the chute, it would not have become clogged.  “If the debris chute had been functioning properly, it would not have become clogged, plaintiff would not have been sent to unclog it, and he would not have been injured.” 

An extension of the court’s holding would therefore seem to be that had the plaintiff stuck his head into the chute just to see what it looked like and then been struck that the cause of the accident would have, or at least could have been, his sole proximate cause.  On the other hand the court did hold that where plaintiff stuck his head into the debris chute after the chute had become clogged and then cleared that it is a violation so sole proximate cause is not available.

The court specifically points out that the defendant did not raise an issue of whether the safety devise, here the chute, was an adequate safety devise.  This case again points out the necessity of having an expert analyze the case to see if the safety devises available and used are adequate, without that opinion you can be left without any argument regarding the appropriateness of the safety devise provided or available.  While the other issues are largely fact driven, the appropriateness of a safety devise is almost always a topic which will need to be addressed by an expert for motion purposes.

 

1/12/12            Kropp v Town of Shandaken

Appellate Division, Third Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_00161.htm

The plaintiff was working in a trench when he was struck by a falling pipe which was 18 feet long, 18 inches in diameter weighing about 1,500 pounds.  There was conflicting proof as to how far the pipe fell and why it was dropped.  There was proof offered from various witnesses that the pipe fell just a foot or that the pipe fell from several feet above the top of the ditch.  The court, citing Willinski (previously discussed) held that even if the pipe fell only one foot that “such an elevation differential "cannot be viewed as de minimis, particularly given the weight of the object and the amount of force it was capable of generating"
The defendant had an expert who opined that the cause of the plaintiff’s injury was not any defect in the hoisting method or safety devise, but rather that the sole cause of the accident was the plaintiff pushing down on the pipe as it was being lowered causing it to slip in the hoisting “four way” and drop striking the plaintiff.  There was testimony both that there were and that there were not safety clips present on the chain hooks.  The court held that these questions ”pose issues of fact as to whether the absence or inadequacy of a safety device proximately caused plaintiff's injuries” and summary judgment was not awarded to the plaintiff.
Once again the importance of an expert is demonstrated.  Had there simply been the question of the presence of the safety clips I would wonder of the court would have found a question of fact but coupled with the opinion that the safety devise was adequate with the safety clips plaintiff motion was not granted.

1/10/12            Serrano v Popovic
Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_00199.htm

Plaintiff was working on a roof during the construction on a single family home with garage when he fell from the roof of the house and was injured.  There was safety equipment on the roof of the house including planks and brackets which was removed and put on the roof of the garage to allow work to be done there.  The plaintiff was instructed not to work on the roof of the house but only to work on the roof of the garage when he went onto the house roof and fell off sustaining injury.  The court held that the plaintiff’s decision to climb onto the house roof, were the safety devises had been removed, in spite of being told not to do so was, was the sole proximate cause of his injury. 

 

1/5/12  Ellerbe v Port Authority of New York

Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_00032.htm

Plaintiff, a construction worker fell from a ladder and was injured.  Immediately following the accident the plaintiff tells the work site safety manager that he “lost his footing” and fell.  That version of the accident is memorialized in the incident report that day.  The safety manager then climbs the ladder the plaintiff fell from and finds it to be secured and not defective in any way.  The plaintiff testifies, during the law suit which inevitably followed, that he was getting off the top of the ladder when it “reared back” causing him to fall.

The court found a question of fact denying all summary judgment motions holding that “where credible evidence reveals differing versions of the accident, one under which defendants would be liable and another under which they would not, questions of fact exist making summary judgment inappropriate.”

Here the importance of obtaining statements from those involved in any accident is reinforced.  I counsel my clients that an immediate investigation with photographs and statements of witnesses is essential it determining if the accident involves a Labor Law violation.

 

 

 

Labor Law Section 241(6)

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

 

1/24/12            Urbano v. Rockefeller Center North Inc.

Appellate Division, First Department  
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00419.htm

Plaintiff was struck in the shoulder by a piece of masonry that broke apart while he was placing it in a disposal container.  He alleged a violation of 12 NYCRR 23-1.7(d) and (e), which concerns hazards that could cause workers to fall by slipping or tripping, or which could cut them.  As Plaintiff provided no testimony establishing that he slipped or tripped on the debris or that it cut him, the court found this provision inapplicable.  It noted that, where plaintiff did not slip, trip or cut himself on the debris, the mere presence of it in the area did not make the provision applicable.  Further, the court found 12 NYCRR 23-3.3 also inapplicable as plaintiff failed to establish that the pieces of masonry on the floor were “loosened material” within the meaning of the section.  Nor, according to the court, was plaintiff injured by the collapse of a deteriorated wall or floor.

 

1/17/12            Buckley v. Triborough Bridge and Tunnel Authority

Appellate Division, First Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00251.htm

In this case, the court held that there was a question of fact as to whether there was a foreseeable risk of eye injury, which would have required defendant to furnish eye protection.  Plaintiff, an iron worker, was injured when the loose end of his lanyard became caught and suddenly released.  The lanyard then snapped back causing the hook end to strike plaintiff in the eye.  He alleged a violation of Industrial Code 12 NYCRR 23-1.8(a), which requires such protective eyewear where there is an “operation which would endanger the eyes.”

 

1/17/12            Cabrera v. Revere Condominium

Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_00320.htm

Where plaintiff was injured while using a hand-held power grinder, the court held that the Industrial Code provisions related to power-driven saws and “power-operated heavy equipment or machinery” were inapplicable. 

 

1/17/12            Pittman v. S.P. Lenox Realty, LLC

Appellate Division, Second Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00348.htm

This case held that the action of applying polyurethane to a wood floor was the functional equivalent of “painting.”  Thus, Labor Law 241(6) applied as section 23-1.4(b)(13) defines construction work to include all work “performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures.” 

 

1/17/12            Fritz v. Sports Authority

Appellate Division, Second Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00348.htm

In this matter, the court affirmed the trial court’s denial of defendant’s motion for summary judgment.  It too found that defendant failed to make a prima facie showing that the lighting at the job site sufficiently complied with the requirements of 12 NYCRR 23-1.30 or that the operating surface of the job site sufficiently complied with the requirements of 12 NYCRR 23-9.8(e) (Operating surfaces.  No lift or fork truck shall be used on any surface that is so uneven as to make upsetting likely).

 

1/12/12            Kropp v. Town of Shandaken

Appellate Division, Third Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00161.htm

Plaintiff was working at the bottom of a trench connecting lengths of pipe that were being lowered into the trench by an excavator.  At some point, he was struck by an iron pipe.  The pipe was being lowered into the trench by a device called a four way, which consisted of a ring with which four chains with hooks on the end were suspended.  The rings were attached to the bucket of the excavator and the hooks to nylon straps wrapped around the pipe.  There is some conflicting testimony as to how the pipe dropped and how far.  Due to these issues of fact, the court could not grant summary judgment dismissing plaintiffs 241(6) claim based on 12 NYCRR 23-9.4.  According to the court, this section would apply to the excavator, which was being used at the time of the accident “in the manner of a power shovel in attempting to elevate construction material.”

 

 

Labor Law Section 200 and Common Law Negligence

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


The end of January means the end of football season, except for one meaningless game involving the New England Patriots and New York Giants.  As the Buffalo Bills, New York State’s only true football domiciliary, begin preparing for the 2012 season, we are left with nothing better to do than read and analyze New York State Labor Law §200 decisions.  Consistency is this month’s theme as the Courts continue to address Labor Law 200 cases in the same fashion, and the Giants and Jets still play their home games in Jersey. 
As we know, 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.  Recent decisions reinforce the principal that the right to generally supervise the work, stop the contractor's work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient to impose liability under § 200 or for common-law negligence.
1/24/2012      Eversfield v Brush Hollow Realty, LCC
Appellate Division, Second Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00484.htm
The Second Department overturns the grant of summary judgment to owners on 200 claim for injury that is pure doo-doo (literally).  Plaintiff allegedly fell from an improperly secured and titling portable toilet at a construction site. In reversing the trial court, the Second Department held that the Brush Hollow defendants failed to make a prima facie showing that they did not create or have actual or constructive notice of a dangerous condition regarding the placement of the portable restroom. The failure to make a prima facie showing required the denial of that branch of the motion, regardless of the sufficiency of the opposing papers.
1/26/2012        Russo v Hudson View Gardens, Inc.
Appellate Division, First Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00464.htm
Plaintiff fell from an unstable ladder that he selected and was owned by the property owner.  The First Department dismissed the 200 claim against the managing agent of the premises, finding that it did not direct or control plaintiff’s work, and had no actual or constructive notice of the alleged defective condition. 

1/17/2012        Cabrera v Revere Condominium
Appellate Division, Second Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00320.htm
Plaintiff allegedly was injured while attempting to cut a piece of metal with a hand-held power grinder. Noting that general supervisory authority for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose 200 liability, the Court ruled that the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they did not have the authority to supervise or control the work in which the plaintiff was engaged at the time of his alleged injury.
That’s it for “interesting” Labor Law 200 decisions this month.  Now I can go watch a replay of Super Bowl XXV.  This time I think the kick will be good….

 

 

 

Indemnity Issues in Labor Law

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

01/17/12          Gavin Bros. Inc. v Town of Babylon, NY

Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_00331.htm

Plaintiff commenced the instant action seeking to recover alleged economic loss on a breach of contract theory against the Town of Babylon. In its Answer, the Town asserted cross-claims against co-defendant Hanes Geo Components.  Haynes moved to dismiss the cross-claims for failure to state a cause of action resulting in this appeal.

Haynes first argued that the Town’s claims for contribution must be dismissed where, as here, the complaint only seeks economic damages.  In affirming the trial court’s dismissal of the Town’s claim for contribution, the Second Department noted that there is no viable claim for contribution under CPLR 1401 where only economic damages are sought. 

In addition, Haynes also moved to dismiss the Town’s indemnity claim on the basis that the Town was not in privity of contract with it.  In affirming the dismissal of the contractual indemnity claim, the Second Department noted that there was no direct contract between Haynes and the Town.  In addition, the Court noted that the Town had failed to establish the existence of third-party beneficiary status under any other contract entered into by Haynes.

 

01/17/12          Fritz v Sports Authority

Appellate Division, Second Department http://www.nycourts.gov/reporter/3dseries/2012/2012_00329.htm

Plaintiff commenced this Labor Law action against Sports Authority and Sons Riverhead, LLC (collectively “Sports Authority”).  Thereafter, Sports Authority commenced third-party actions seeking contractual and/or common law indemnity against Roland’s Electric, C&G Developers and Giaquinto Masonry, Inc.   At some point in the litigation, Sports Authority moved for summary judgment against the plaintiff’s cause of action under Labor Law § 241(6).  Notably, there is no mention that Sports Authority likewise moved for summary judgment against plaintiff with regard to (what we presume was) plaintiff’s Labor Law § 200/Common Law Negligence Claim. 

At the same time, Sports Authority moved for summary judgment against Roland’s, C&G and Giaquinto.  However, where Sports Authority failed to establish that it was, itself, free of negligence, any decision on indemnity obligations owed by subcontractors to Sports Authority was premature. 

Peiper’s Point – In every Labor Law case where you have an opportunity to shift the risk via an indemnity, it should be primary job #1 to establish that your client/insured was not negligent.  This includes, moving for summary judgment against the Labor Law § 200 as soon as possible.  Where the potential of attributable negligence to the owner/general contractor exists, resolution becomes much, much more difficult. 

 

01/17/12          Baillargeon v Kings County Waterproofing Corp.

Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_00315.htm

Plaintiff slipped and sustained injury while in the course of installing carpet at the Jacob Javits Convention Center.  It was alleged that plaintiff was caused to slip due to the existence of water that entered the facility due to a recurrent roof leak.  Defendant Kings had previously been retained by the Convention Center to repair the leak.  Defendant Gordon H. Smith Company had been retained by the Convention Center to identify the problem, and formulate plan to remedy the situation. 

Plaintiff named both Kings and Gordon as defendants in the instant proceeding.  Upon answering, Gordon asserted cross-claims against King for contractual indemnification.  Gordon later moved for summary judgment seeking an award of contractual indemnity against Kings.  Kings opposed the motion on the basis that it did not have a contract with Gordon. 

In affirming the trial court, the Second Department noted that Kings contract was limited to the Convention Center.  There was no obligation within the Kings/Convention Center Contract which required Kings to indemnity non-party Gordon.  In addition, the Kings/Convention Center Contract did not explicitly incorporate the terms of the Convention Center/Gordon Contract.  Accordingly, Gordon had no basis to assert a contractual indemnity claim. 

Peiper’s Point – While it is possible to incorporate, via reference, the indemnity requirements of another contract (usually a prime contract), indemnity provisions only become incorporated via specific reference.  A broadly worded, catch all, incorporation clause, with no direct reference to indemnity obligations, will not suffice. 

 

01/03/12          Cohen v New York City Indus. Dev. Agency

Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_00008.htm

Plaintiff commenced this Labor Law claim against the NYC IDA after he slipped and fell from a steel beam while in the course of his employment as an ironworker.  NYC IDA later commenced claims for contractual and common law indemnification against JH Mack (General Contractor), Pre-Fab (steel erector; and plaintiff’s employer) and Giaquinto (masonry contractor). 

NYC IDA’s subsequent motion for summary judgment against Pre-Fab on the contractual indemnification provision was denied where NYC IDA could not establish that Pre-Fab negligently supervised the plaintiff’s work.  We presume this means that the contact only required Pre-Fab to indemnify NYC IDA for Pre-Fab’s own negligence. 

NYC IDA’s motion for contractual/common law indemnity against Giaquinto was likewise dismissed where NYC IDA could not establish that Giaquinto’s negligence actually caused or contributed to the incident involving plaintiff.  Recall, in order to trigger common law indemnity protections, one must establish at least some negligence on the part of the purported indemnitor. 

 

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

Labor Law Pointers
Editor
David R. Adams

Associate Editor

V. Christopher Potenza

Associate Editor
Steven E. Peiper

Associate Editor

Jennifer A. Ehman
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
www.hurwitzfine.com

 

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