Labor Law Pointers - Volume I, No. 6

Labor Law Pointers

Volume I, No. 6
Wednesday, April 4, 2012

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


From the Editor:

Welcome to the April edition of our newsletter.  March; with its “madness” is over.  Not a basketball fan myself, I find that I am drawn to the win or go home nature of the NCAA tournament but I was thinking that what we do is not governed by the same principle.  In the lives of those of us defending Labor Law cases on a daily basis, the trial court’s motion decision is often the starting point and not the finish line.  This leads me to a concept that I have been promoting - early retention of an expert where the case warrants it.  Labor Law cases, particularly Labor Law § 240(1) cases, are often decided on Summary Judgment motions.  It follows, therefore, that it is often a good idea to have an expert opinion to support your motion or to oppose the plaintiff’s motion.  Remember that if you did not have an expert opinion for the trial level motion, the Record on Appeal is not going to contain any subsequent opinion and the appellate court will be making a decision without that bit of evidence.  We have seen several cases over the past months where having an expert affidavit could have changed the outcome.  The most common example is the appropriateness of the safety device provided or available.
Well, I said I would include a joke each month and have not had any sent to me this month, so I am pulling an old one out.   
A lawyer and an engineer were fishing in the Caribbean when they got to talking.  The lawyer mentioned, "I'm here because my house burned down and everything got destroyed by the fire. The insurance company paid for everything."
"That's quite a coincidence," remarked the engineer.  "I'm here because my house and all my belongings were destroyed by a flood. My insurance company, too, paid for everything."
There was a brief pause, and then the puzzled lawyer asked, "How do you start a flood?"


No Court of Appeal’s cases this month and none of note from the Fourth, but several interesting cases nonetheless. 
I continue to get several calls a week from you, my fellow Labor Law aficionados, looking to try and put a novel theory on a case or give me a fact pattern designed to make my brain explode.  In spite of the headaches and the speed with which my hair is turning grey, I love it.  If you have a topic you want to discuss or a case you are just looking for a second opinion on, by all means give me a call or send an email; it makes my day.  We are also more than simply willing to come to you and put on our New York Labor Law seminar for your case handlers  Our presentation is an update on the latest case law and an outline to the handling of a Labor Law case from start to finish.
As always, have a great month.  I will write to you again the first Wednesday of May with the next batch of cases.  Until then, enjoy the spring.


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.

Labor Law Section 240(1)

                                                                                    by:    David R. Adams
(716) 849-8998
[email protected]
03/29/2012      Ortega v. City of New York
Appellate Division, First Department

The court addressed whether a plaintiff must prove as an element of a claim under Labor Law § 240(1) that the injury was foreseeable.  The court concluded that outside the context of a collapse of a permanent structure, the plaintiff does not need to produce evidence (expert testimony) that the injury was foreseeable.  On this basis, the court granted plaintiff’s motion for summary judgment because he otherwise established that he was engaged in a covered activity and a lack of protection resulted from the defendant’s failure to provide adequate safety devices under Labor Law § 240(1). 
The plaintiff was injured when connecting pipes that were to be used to pour concrete underground using the ‘Tremie Concrete’ method.  He was ejected from the platform that was resting on unsecured wooden planking.  The court reasoned that injury from the inherently dangerous activities covered by Labor Law § 240(1) is foreseeable whenever the owner or contractor fails to provide proper safety devices. 
Practice Point - Recall that foreseeability remains a necessary element in any labor law case involving the collapse of a permanent structure.  Thus, in a case where a wall comes down on a plaintiff or a stair case gives way, the foreseeability of that failure is a necessary element of the case.  This tends to be found most often in demolition cases.  Foreseeability is an element of 241(6) and 200 cases.


03/06/2012      D’Antonio v. Manhattan Contr. Corp.
Appellate Division, First Department

The court affirmed the trial court’s denial of summary judgment because there were issues of fact to be tried.  The plaintiff was working at a construction site owned by the defendant, 112 West 34th Street Company, LLC, when he was struck on the head.  The plaintiff was standing on the third rung of an A-frame ladder that was closed and propped against the wall when a conduit pipe housing wires partially detached from the wall, swung downward, and struck the plaintiff.  The court found the following three issues of fact to be resolved at trial:  (1) whether the conduit pipe constituted a falling object under Labor Law 240(1); (2) whether the events leading to the plaintiff’s injury were due to the absence or inadequacy of a safety device of the type enumerated in Labor Law 240(1); and (3) whether the plaintiff deliberately jumped, was knocked off by the pipe, or lost his footing when the ladder shook.  
Practice Point - The facts provided with this case make it difficult to address the first issue - was the conduit a falling object.  The second question of fact, the absence or inadequacy of the safety device, supports my opinion that expert testimony is always helpful.  As to the third question of fact, what caused the plaintiff to fall, there is conflicting evidence.  This underscores the need to obtain statements from and depose all witnesses to an accident.  The purpose of the deposition is to obtain the information necessary to determine if a Summary Judgment motion is possible.  In this case, the existence of conflicting versions of the accident, one of which was that it was not as a result of any lack of a safety device, precludes Summary Judgment by either party.

03/13/2012      Ervin v. Consolidated Edison of N.Y.
Appellate Division, First Department

The court granted summary judgment to the plaintiff, Michael Ervin, on his Labor law § 240(1) claim for injuries sustained at an electrical substation construction site.  The plaintiff fell when a temporary platform he was descending gave way, causing him to fall approximately three feet.  The court held that the plaintiff’s contention there was an issue of fact as to whether the plaintiff was the sole proximate cause of his injury lacked merit because the defendant, Consolidated Edison, the owner of the site, failed to submit any evidence showing the plaintiff knew or should have known to use some other device.
Practice Point - Any argument for sole proximate cause must establish all three elements of the defense - that a safety devise was both (1) available and (2) appropriate and (3) that the plaintiff knew or should have known he was expected to use the safety device.

03/13/2012      Dedndreaj v. ABC Carpet & Home
Appellate Division, First Department

The court held the plaintiff established his entitlement to summary judgment on his Labor Law 240(1) claim where plaintiff was injured while walking through a passageway and was struck by a pipe that fell while being hoisted above.  The failure to provide an adequate safety device was a proximate cause of the injury.  The fact that plaintiff disregarded warnings was not the sole proximate cause of the injury, and the defendant could not argue the plaintiff was a recalcitrant worker where the plaintiff followed his superior into the tunnel and the tunnel was the only means of egress.
Practice PointSole proximate cause is not available where, as here, the Labor Law is violated.  The fact that the pipe fell while being hoisted makes the labor law violation at least a cause of the accident and, thus, nothing else can be the sole proximate cause of the injury.

03/06/2012      Tzic v. Kasampas
Appellate Division, First Department

A plaintiff was injured when he fell fifteen feet through an opening in a sidewalk bridge that extended around the perimeter of a building.  The court held that the plaintiff was entitled to summary judgment on the issue of liability because the owner failed to create an issue of fact as to the presence of a proper personal fall system or the recalcitrance of the plaintiff.  To resolve the issue of the presence of a proper personal fall system, the court relied on the testimony of the president of a contractor, Champion Builder & Construction Corp., that the plaintiff was given a hard hat and a safety harness which had a line the plaintiff was supposed to attach to a fire escape whenever he was working near one.  The court also relied on the testimony of an expert provided by the plaintiff that such fire escape anchorage was improper.  The owner failed to put forth any evidence to contest the plaintiff’s expert’s opinion.  Lastly, the owners were required to submit evidence establishing the following to create an issue of fact as to recalcitrance:  (a) the plaintiff had adequate safety devices at his disposal; (b) he both knew about them and was expected to use them; (c) he for ‘no good reason’ chose not to use them; and (d) he would not have been injured if he had used them.  The contributory negligence of the plaintiff in walking over a tarp he placed over the opening was irrelevant where the defendant did not produce evidence of recalcitrance.  The court also held there were issues of fact as to the precise degree of fault attributable to the parties involved, and that the plaintiff suffered a grave injury.
Practice PointOnce again, the defense was doomed by the lack of an expert to offer any proof in admissible form that the safety device provided was adequate.  Plaintiff had an expert who opined that the anchor provided was not adequate and the defense did not, or could not, refute that opinion.  Thus, there was no adequate safety device provided and plaintiff was awarded Summary Judgment.

03/06/2012      Rodriguez v. Tribeca 105, LLC
Appellate Division, Second Department

The court overturned summary judgment for the plaintiff because the defendants, the owner and the general contractor, raised triable issues of fact as to liability under Labor Law § 240(1).  The plaintiff fell from a ladder at a construction site.  The deposition testimony of a co-worker was inconsistent with the plaintiff’s account of how the accident occurred and the co-worker’s testimony could support finding that the plaintiff’s negligence was the sole proximate cause.  The court also held that the general contractor’s cause of action for indemnification against the owner should have been denied because ‘a party seeking contractual indemnification must prove itself free from negligence’ and the general contractor failed to eliminate all triable issues of fact regarding its negligence.
Practice Point Differing descriptions of how the accident happened again create a question of fact pointing out, as above in D’Antonio, the importance of obtaining testimony or statements from all witnesses.

03/27/2012      Phillip v. 525 E. 80th St. Condominium
Appellate Division, First Department

The court overturned summary judgment for the defendant in favor of the plaintiff because the evidence showed the manner of work was the only way to unload the materials and a safety device enumerated under Labor Law § 240(1) could have prevented the fall.  The plaintiff was unloading scaffolding materials from a flatbed truck.  He was wearing a harness, but there was no location on the truck to secure the harness.  The fact the plaintiff was unable to recall how he fell was deemed irrelevant.
Practice PointUnlike the Fourth Department case of Brownell discussed in November where the general rule that a truck bed is not an elevated work surface was upheld, here the plaintiff was actually on top of a nine foot high stack of scaffolding material on the truck bed at the time he fell. 

03/27/2012      Ruiz v. Walker
Appellate Division, Second Department

The court granted the defendant owner’s motion for summary judgment on plaintiff’s Labor Law § 240(1) and § 240(6) claims.  Labor Law § 240(1) and 240(6) exempt owners of one- and two- family dwellings who do not direct or control the method or manner of the work from liability.  The defendant merely retained a ‘limited power of general supervision’ which ‘was no more extensive than what would be expected of a typical homeowner who hired a contractor to renovate his or her home.’  The plaintiff failed to produce any evidence to the contrary.
Practice Point This is an important case to read both for defending cases that come across your disk and when you are at home hiring the roofer.  Remember that when you hire someone to do work around the house involving any activity enumerated in 240(1), do not supervise that activity or we may wind up having a difficult discussion about the exceptions to the homeowners exemption and how they apply to your instruction to the guy who started on your roof and wound up on your lawn.


03/27/2012      Soltero v. City of New York
Appellate Division, First Department

The court affirmed summary judgment for the plaintiff.  The plaintiff fell from a two-foot high ledge in the subway that was wet, while she was replacing old tracks.  The work she was performing required her to be at that level, and the defendant failed to provide a safety device.   The defendant’s contention that the ledge was less than two feet was disregarded due to a record of testimony by the plaintiff and her supervisor that the wall was approximately two feet high.
Practice PointHere a two foot fall is sufficient for 240(1) and there was no available and appropriate safety device for plaintiff’s use other than a wet ledge to stand on. 

03/29/2012      Fraser v. Pace Plumbing Corp.
Appellate Division, First Department

The court affirmed a denial of the defendant’s motion for summary judgment.  Plaintiff was on a scaffold when a wheel went into a hole cut by defendant Pace.  The court held there were triable issues of fact as to whether the contractor was the statutory agent of the construction manager, rendering it liable under Labor Law §§ 240(1), 241(6) and 200.  The contractor’s agreement with the construction manager provided that the contractor would ‘cut, fit, patch and protect its work.’  The specifications of the agreement were arguably conflicting in that they provided that openings in the floor would be covered and protected ‘by others.’  The language of the agreement, however, also provided that the agreement took priority over the specifications.  The court also held there were triable issues of fact as to the contractor’s negligence for the purposes of the common-law negligence claims and Labor Law § 200 claim.
Practice PointWhere the cause of the accident, an uncovered hole, was specifically in the contract as a responsibility of a specific party, that party is not getting out even if they are not the owner or general contractor.  Read all contracts carefully for the responsibilities of each party and ask every party what their responsibilities are.  Often the witness believes he or she has more responsibilities or duties on a project than those assigned by contract.

Labor Law Section 241(6)

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

03/27/12          Phillip v 525 E. 80th St. Condominium
Appellate Division, First Department

Plaintiff sustained injury when he fell from atop a load of scaffolding material on a flatbed truck.   He was engaged in unloading the materials at the time of his fall.  The court affirmed the trial court’s dismissal of plaintiff’s 241(6) claim.  Plaintiff claimed that defendant violated 12 NYCRR 23-1.16 by failing to provide him safety belt, harness, tail line, or lifeline. 

In disagreeing with plaintiff, the court held that rule set forth only the standards for the use of such devices and was inapplicable where, as here, defendant did not provide plaintiff with any such devices.  Further, 12 NYCRR 23-8.1, which sets forth standards for “Mobile Cranes, Tower Cranes and Derricks” and 12 NYCRR 23-8.2(c)(3), which governed how mobile cranes are to lift or hoist loads were similarly inapplicable, as no hoist or cranes were used on the job.

03/23/12          Bannister v Lpciminelli, Inc.
Appellate Division, Fourth Department

Plaintiff slipped on ice and fell while working in an open courtyard at a school renovation project.  He claimed a violation of 241(6) premised on 12 NYCRR 23-1.7 (d).  Pursuant to this regulation, [e]mployers shall not . . . permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition.  Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing.”

The court found that the regulation was inapplicable based on the circumstances of plaintiff's fall.  Although the regulation “proscribes slipping hazards”, it does not apply where the accident occurred in an open area and not on a defined walkway or passageway path.  Here, defendants established that the open courtyard in which plaintiff slipped did not constitute a walkway, passageway or path sufficient to support a cause of action based on an alleged violation of this section.

03/13/12          Zieris v City of New York
Appellate Division, First Department

In another decision involving tripping hazards, plaintiff was injured while performing rivet removal work on a bridge when he stepped on a loose rivet stem and fell.  He alleged a violation of 23-1.7(e)(1) and (2).  The initial issue for the court was whether plaintiff was on a passageway at the time of the fall.  It found that even assuming that the area plaintiff traversed could be deemed a “passageway,” plaintiff testified that he tripped on the rivet after he entered the common, open work area. 

Accordingly, the court then considered subsection (2).  It held that the subject regulation did not apply because the evidence showed that the rivet stem constituted an integral part of plaintiff's work.   Defendant’s evidence that plaintiff was engaged in rivet removal, such work was ongoing in various parts of the bridge, and all falling parts could not be caught while plaintiff and his coworkers were actively engaged in the removal work, established that the rivet stem resulted from the work plaintiff was performing.   Further, plaintiff's argument that the rivet did not originate from the work that he himself was performing was unavailing, as rivets left by his coworkers, who were performing the same rivet removal work, could still be deemed an integral part of the work.


Labor Law Section 200 and Common Law Negligence

                                                                                    by:    V. Christopher Potenza
(716) 849-8933
[email protected]
It was nice seeing those of you who attended last week’s Claims and Litigation Management Alliance (CLM) Annual Meeting in San Diego.  For those not able to attend this year, there is always room for more carriers and claims professionals at the party.  I am sure there will be something of interest for us New York Labor Law aficionados at the CLM Construction Conference on November 9th in Nashville.  

Now you know something is not right in the world when you leave Buffalo, and its blistering 75 degree March days, only to face a rather chilly 58 degree San Diego.  But alas, I returned home Friday night only to face an onslaught of sleet and hail trying to find my snow covered car in the airport parking lot.  This month’s Labor Law 200 offerings are a similar smack down of normalcy, hitting you in the face like that ever familiar wall of freezing March rain.   While there is nothing unique about this month’s cases, they do offer a nice sampling of the issues commonly associated with Labor Law 200 litigation.

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. 

3/13/2012        Zieris v City of New York
First Department

Plaintiff, an ironworker, was injured while performing rivet removal work on a bridge when he stepped on a loose rivet stem and fell. The First Department held that the trial court properly dismissed the Labor Law § 200 claim as there is no evidence that defendant created the condition and defendant did not receive any complaints regarding any tripping hazards. Insofar as plaintiff argues that defendant should have known about the condition, defendant's engineer testified that although proper procedures were in place, it was not possible to catch all of the rivet pieces upon removal and a general awareness of a hazardous condition is insufficient to impute constructive notice.

3/23/2012        Bannister v Lpciminelli, Inc., 
Fourth Department

Plaintiff slipped on ice and fell while working in an open courtyard at a school renovation project. The Fourth Department spliced the two different Labor Law 200 theories against the defendant, granting summary judgment to defendant on supervision and control, but dening the motion in regards to notice of a defective condition.  The Court held that Defendants established as a matter of law that they did not have the authority to supervise or control the methods and manner of plaintiff's work and that plaintiffs failed to raise a triable issue of fact sufficient to defeat those parts of the motion.  However, the Fourth Department held that the trial court properly denied defendants’ motion with respect to those causes of action insofar as they are based on the defective condition of the property where the project was located as the defendants did not submit sufficient evidentiary proof to establish that they did not have actual or constructive notice of the icy condition.

3/27/2012      Phillip v 525 E. 80th St. Condominium,
First Department

Plaintiff was working at defendant's building constructing a sidewalk bridge and was unloading materials when he fell from atop a load of scaffolding material on a flatbed truck. Plaintiff's Labor Law § 200 and common-law negligence claims were dismissed. The Court found that the accident was not caused by a hazardous condition, but rather, by the manner in which the unloading of the materials was undertaken.  There was no evidence that defendant supervised or controlled plaintiff's work activities, or that defendant had notice of the hazardous condition before the accident. Defendant's general oversight of the timing and quality of the work does not rise to the level of supervision or control.

3/29/2012        Fraser v Pace Plumbing Corp.,
First Department

Plaintiff was injured when the scaffold on which he was standing slipped into an open, uncovered hole in the concrete floor, and tipped over.  Defendant contractor was denied summary judgment on the common-law negligence and Labor Law § 200 claims, since the record contained evidence that the contractor created the hole into which the scaffold slipped and also removed the plywood coverings from the holes.

While quite frankly there is nothing terribly unique or exciting about this month’s cases, they do provide a good overview of the law and would make handy citations. 

Indemnity Issues in Labor Law

                                                                                    by:    Steven E. Peiper
(716) 849-8995
[email protected]
03/27/12          Persaud v Bovis Lend Lease, Inc.
Appellate Division, Second Department

Plaintiff, while in the course of his employment with Gessin, sustained injury on a jobsite managed by Bovis.  Thereafter, plaintiff sued Bovis, among other defendants (hereinafter “Bovis defendants”) for violations of New York Labor Law.  The Bovis defendants, in turn, commenced a third-party action against Gessin.  The third-party action sought an award of contractual indemnification and/or common law indemnification/contribution. 
Gessin moved for summary judgment against the Bovis defendants at the close of discovery.  Gessin argued that the common law indemnity/contribution claim was precluded by operation of Workers’ Compensation Law § 11 because plaintiff did not sustain a “grave injury.”  The Court agreed, and that portion of the Bovis defendants’ claim was dismissed.
In addition, Gessin also moved for summary judgment against the Bovis defendants’ contractual indemnity claim.  Gessin did not enter into a contract with any of the Bovis defendants. As such, Gessin had no direct contractual obligations to any of them. 
In response, the Bovis defendants argued that their prime contract with subcontractor BTG was incorporated into the contract BTG entered into with Gessin.  Essentially, the Bovis defendants argued that because BTG had an obligation to provide contractual indemnification and procure insurance, said obligation was incorporated into Gessin’s contract and was therefore enforceable. 
While the BTG/Gessin contract did contain an incorporation clause, it was not specific enough to incorporate indemnity and/or insurance procurement requirements.  In granting Gessin’s motion, the Appellate Division noted that a party may only incorporate indemnity and/or insurance procurement obligations by explicit reference.  Here, however, the broad incorporation clause only indicated the general scope, quality and character of the work to be performed.  This was not enough to create an indemnity right were no such right was explicitly referenced. 
03/22/12          Abacus Federal Savings Bank v ADT Security Services, Inc.
Court of Appeals

In March of 2004, Abacus Savings Bank was the victim of a sophisticated burglary.  The loss was occasioned as part of a weekend break-in where the thieves literally used large torches to cut a hole in the side of the bank’s vault.  Upon learning of the loss the following Monday morning, the bank understandably contacted its security providers to determine why the burglary was not detected earlier. 
ADT and Diebold had both entered into contracts with Abacus which required 24/7 monitoring.  When it was later revealed that the security system was woefully underperforming for months prior to the burglary, Abacus commenced the instant action seeking to recover its losses under both negligence and breach of contract theories. 
ADT and Diebold moved to dismiss the negligence claims under clauses in both contracts which exculpated both defendants for losses caused by their own respective negligence.  The trial court denied the motions.  In so holding, the trial court acknowledged that parties may contractually protect themselves from losses caused by their own negligence.  However, a party cannot exonerate itself from losses occasioned by gross negligence.  The trial court held that the ongoing problems with the security systems may have constituted gross negligence, and accordingly permitted discovery to proceed. 
Upon appeal to the First Department, the court noted that there was no evidence of gross negligence.  Accordingly, it overturned the trial court and granted both parties’ motions.  That decision resulted in the instant decision from the Court of Appeals. 
Initially, the Court of Appeals confirmed the Appellate Division’s hold that there was no evidence of gross negligence.  In light of the clauses in the respective contracts, any claims for negligence were dismissed accordingly. 
In addition, Diebold’s contract with Abacus provided the following waiver of subrogation clause “Abacus shall look solely to its insurer for recovery of its loss and hereby waives any and all claims for such loss against Diebold.”  In light of the breadth of this language, the Court of Appeals ruled that Abacus had no direct claim against Diebold for losses occasioned out of Diebold’s breach of contract and/or its negligence. 
ADT, however, had no such waiver of subrogation clause.  Accordingly, the court permitted the contractual claims against it to proceed.  In so holding, however, the court noted that Abacus could only recover for losses it (not its insurer) actually sustained. 


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


© 2012 Hurwitz & Fine, P.C., All rights reserved

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