Labor Law Pointers - Volume I, No. 7

Labor Law Pointers

 

Volume I, No. 7
Wednesday, May 2, 2012

 

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

 

From the Editor:  

 

Another month has flown by and again no new cases from the Court of Appeals again.  Seems to me that we were spoiled a few months back as new cases seemed to be coming out constantly making for some interesting reading.  The lack of a new case from the Court of Appeals does not, however, disappoint my wife or children.  Every time they decide a Labor Law case my Blackberry “dings” so regularly that it sounds like a World War II submarine movie where the valiant American crew has been located and is about to be depth charged. 

My vow to include a joke in each edition has come to a temporary end.  I have no good material and the submissions this month were, frankly, either not suitable for publication or simply bad.  Please feel free to submit any joke you think may be both “suitable for publication” and of sufficient quality to live up to my admittedly low editorial standards.

We have for you this month a case where the plaintiff was a security guard on a construction site who was hit in the head by a falling brick.  The second held that he was not a person entitled to the protection of the labor law.  Additionally a case out of the first where 3 men were on a scaffold built for 2.  The ensuing failure of the scaffold was held not to be the plaintiff’s sole proximate cause as the employer knew the scaffold was designed for 2 but never the less assigned 3 men to work on it.

Hope you like our offering for this month, any questions about these or any cases are always welcome.  As I remind you every month feel free to forward this newsletter to one and all, that is why we send it.   Remember that if you want to print this newsletter that printing the attached word document works better,

We are available to put on a seminar for any organization who feels they may benefit from one, we can focus on any area of the Labor Law you may wish and the degree of complexity can be to any level you desire.  We enjoy discussing these issues and find that such discussions help not only those in attendance but that the questions help to advance our understanding of how we can best be of service to our clients defending labor law cases.  Hope you enjoy it and see you next month.

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.

Labor Law Section 240(1)

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

4/26/12            Jan Krejbich v. Schimenti Construction Company Inc.
Appellate Division, First Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03272.htm

While Plaintiff was installing wooden siding to a shed, the A-frame ladder he was standing upon tipped over, causing him to fall to the ground and sustain injury.  The court below granted plaintiff’s motion for summary judgment on the issue of liability on his cause of action under Labor Law § 240(1), a decision unanimously affirmed by the first department.  The court held that the defendants failed to raise a triable issue of fact and put forth any evidence of record that established that plaintiff was the sole proximate cause of his injuries.  This was based on the fact that plaintiff and a co-worker testified that the ladder shifted, tipping over, and causing the plaintiff to fall.  The issues put forth by the defense to create a question of fact we the position of the ladder after the fall and the color of the ladder, neither of which create a question of fact regarding the proximate cause of the plaintiff’s fall. 

Practice PointRecall that to establish a question of fact for a sole proximate cause defense it is essential that the question of fact be of the essential elements of the defense, that being was there an appropriate safety device available and was the plaintiff told or did he know he was expected to use it.  Other questions of fact will not create a question of fact as to the defense and Summary Judgment will likely be awarded to the plaintiff.

 

4/26/12            Yuriy Wowk v. Broadway 280 Park Fee, LLC
Appellate Division, First Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03274.htm

Plaintiff, a professional window washer, was injured while carrying water up to the scaffold upon which he worked, when he fell down the fixed exterior staircase (referred to in the case below as a “ship ladder”) that provided the sole means of access to the scaffold.  The scaffold was permanently mounted on the roof of the building and could be lowered down the side of the building to clean the windows.   Plaintiff fell when he slipped on water on the steps which gathered there every morning from an air conditioning unit during August and September.  The trial court granted Defendant’s motion for summary judgment dismissing the complaint against as to Labor Law §§240(1), 241(6) and 200 common-law negligence claims.  This decision was modified by the First Department reinstating the §§240(1) and 200 common-law negligence claims.  The court held, yet again, that window washing is a covered activity under Labor Law §240(1), as washing is an enumerated activity under the statute ( See Broggy v. Rockefeller Group, Inc., 8 N.Y.3d 675 (N.Y. 2007)).

Practice PointIt is always critical to start your analysis of any Labor Law case with the activity undertaken by the plaintiff at the time of his injury.  Recall that while there is a much more extensive list for §240(1), including and limited to erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure, §241(6) is limited to construction, demolition or excavation and cannot, as mentioned by Jennifer Ehman below, include cleaning.

 

4/24/12            Rzymski v. Metropolitan Tower Life Insurance Co.
Appellate Division, First Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03099.htm

Plaintiff, a steam fitter, was installing one end of a 20 foot 250 pound steel pipe into a clevis hanger when the other side of the pipe that had previously been installed came loose, causing the pipe to strike plaintiff in the head and knock him off the ladder on which he was standing.  The court below granted plaintiff’s motion for summary judgment as to liability under Labor Law§ 240(1) and denied defendant’s cross motion. The First Department affirmed holding that the court below correctly granted plaintiff’s motion for partial summary judgment under Labor Law §240(1) as the plaintiff not only fell but that he was also struck by a falling object and that no safety devise was present to prevent either occurrence.

Practice PointWhere, as here, the plaintiff is an individual intended to be provided with the protection of the labor law and is engaged in a protected activity, if plaintiff falls or is struck by a falling object that is sufficient to create a prima facia case under §240(1) and absent a defense of either sole proximate cause or recalcitrance Summary Judgment will be granted to the plaintiff.

 

3/24/12            Aburto v. City of New York
Appellate Division, First Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03114.htm

Plaintiff brought suit against the city, alleging violation of Labor Law §240(1) for injuries sustained when he was injured when a scaffolding collapsed while he was disassembling it.  The defense submitted testimony that the plaintiff was violently and forcefully shaking the scaffold during that process and that this activity caused the scaffold’s side frame to give way allowing the platform to fall through the frame.  The court below denied the plaintiff’s Summary Judgment motion but the First Department reversed and granted plaintiff’s Summary Judgment motion.  The First Department held that while there were safety devices present to prevent the plaintiff from falling from the sides of the scaffold that no safety devices were present to prevent the plaintiff from falling through the scaffold.  The court held that any fault which could be attributed to the plaintiff would only be negligence on his part and not the sole proximate cause of the injury and thus, given the scope of §240(1) and its absolute liability plaintiff’s negligence does not prevent the court from awarding Summary Judgment to the plaintiff.

Practice PointEven establishing that the plaintiff was 99% at fault for accident that caused his injury is not sufficient to prevent Summary Judgment being awarded to the plaintiff, to be the sole proximate cause of an injury the plaintiff own actions must, in fact be the sole proximate cause of the accident.  That is why my hair is turning grey so very quickly, that damn Blake case again.

 

4/20/12            Rast v. Wachs Rome Development, LLC
Appellate Division, Fourth Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03047.htm

Plaintiff, an employee of the general contractor who was rebuilding a strip mall, was informed that the roof was leaking and causing damage to the drywall below.  A new roof was being installed on the flat roof and the membrane had been folded over by the wind allowing the water to enter the building.  Plaintiff used a scissor lift to get on the roof, put the membrane back into place and swept the water off the roof.  When it happened a second time he went back on the roof and did it again however as he was descending from the roof he fell and sustained injuries.  

The Fourth Department held that the plaintiff was of the class of individuals intended to be protected by the Labor Law in that he was accessing the roof to investigate and repair the cause of the water leaking into the project as well as preventing the roof from collapsing and that this was within the scope of his employment.  Additionally, as there was no safety device available to prevent him from falling from the roof and sustaining a gravity related type injury, he was entitled to Summary Judgment on the Labor Law §240(1).

Practice PointThe underlying decision by the court below held that as the plaintiff claimed that the rear of the roof collapsed under his foot as he tried to get back into the scissor lift that thus this was a Labor Law case.  The Fourth Department holding does not even mention that fact and points out simply that where the plaintiff is of the protected class and that his injury was gravity related due to the lack of a safety device that plaintiff has established a prima facie case under Labor Law §240(1) and the onus shifts to the defense to establish a defense.  None was available here.

 

4/12/12            Nenadovic v. PT Tenants Corp.
Appellate Division, First Department
 http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02775.htm

Plaintiff, an employee of an asbestos abatement contractor was working, as assigned by his employer, with 2 other co-workers on a 50 foot long suspended scaffold designed for 2 workers.  The scaffold ultimately broke into 2 pieces causing the plaintiff to fall and sustain injury.  As the scaffold broke causing the plaintiff to fall and no other fall protection safety device was used the plaintiff established his prima facie case for Summary Judgment.  The burden then shifted to the defense to establish that, at minimum, there was a question of fact that the plaintiff’s fall and resultant injury were not the result of a 240 violation or that the plaintiff was the sole proximate cause of the accident.  As the defendants were aware that the scaffold had a 2 man maximum capacity and that 3 men were assigned to work on the scaffold along with the fact that no other safety devices were made available to the workers there is no evidence that the plaintiff’s injury was “exclusively caused by his own willful or intentional acts”.  Summary Judgment was awarded to the plaintiff on the Labor Law § 240(1) claim.

Practice PointWhere it may appear that a sole proximate cause defense exists it is important to establish the three key elements, availability and appropriateness of a safety device being the first 2 and the third that the plaintiff was instructed or understood that he was to use that safety device and in the appropriate manner.  Here had the plaintiff himself or with his co-workers (now presumably co-plaintiffs) made the decision to put 3 in a scaffold designed for 2 and had the employer instructed the plaintiff to have only 2 at a time on the scaffold there was the opportunity for the defendant to win Summary Judgment.  The defendant would have needed an expert to opine that the scaffold was the appropriate safety device and that it was exclusively the plaintiff misuse of that device which lead to his injury.

 

4/3/12  Kun Sik Kim v. State Street Hospitality, LLC
Appellate Division, Second Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02461.htm

Plaintiff was working on a ladder demolishing a wall with a 20 pound sledge hammer when a piece of the wall struck the ladder causing the ladder, with the plaintiff on it, to fall over.  Plaintiff was injured.  As we have seem time and again when the ladder shifts, causing the plaintiff to fall Summary Judgment will be, and was here, awarded to the plaintiff.  This case, like the Rzymski case above has the double whammy, both a falling object and a falling worker. 

Practice PointIn these cases it is very difficult to defend as appropriate safety devices need be available to prevent both halves, the falling object and the falling worker.

 

4/3/12  Kuffour v. Whitestone Const. Corp.
Appellate Division, Second Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02460.htm
Plaintiff, a security guard was working at a school where construction work was ongoing.  As he was entering his security booth he was struck in the head by an object.  When plaintiff regained consciousness plaintiff noticed broken bricks on the ground near by which had not been there before.  While there was a construction project underway in the area where plaintiff was injured the Second Department determined that the plaintiff was not in the class of individuals intended to be protected by the labor Law, in the statutes language he was not a “person so employed”.

Practice PointThe first step in evaluating any claimed Labor Law case is to determine if the plaintiff is of the class of individuals intended to be provided the extraordinary protection of the Labor Law.  Clearly here the plaintiff was injured by a falling object on a construction site and at first blush it appears to be a Labor Law § 240(1) case but the status of the plaintiff precludes any such claim. 

 

Labor Law Section 241(6)

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

04/27/12          John v. Klewin Building Company, Inc.
Appellate Division, Fourth Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_03302.htm

Plaintiff was injured when he fell from a roof at a construction project.  The Court affirmed the trial court’s denial of defendant’s motion to dismiss the 241(6) claim premised on 12 NYCRR 23-1.7(d) (Slipping hazards.  Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition...) and 23-1.24 (general requirements for work on roofs). 

The Court found a triable issue of fact as to whether the “work [was] to be performed” on the roof surface from which plaintiff fell, whether the roof surface had a slope steeper than one in four inches, and whether the sloped roof surface was wet and thus failed to provide safe footing.

 

04/26/12          Garcia v. 225 East 57th Street Owners, Inc.
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_03287.htm

This is a really interesting decision.  Plaintiff was instructed to remove mirrored wall panels.  To do this, plaintiff wedged a spatula between the panel and drywall.  He then tapped the spatula with a hammer to pry the panel loose.  While performing this work, a piece of the mirror fell slicing plaintiff’s hand.      

The issue the court examined was the applicability of 12 NYCRR 23-3.3(b)(3) and (c).  The former provision, entitled “Demolition by hand,” requires that “[w]alls, chimneys and other parts of any building or other structure shall not be left unguarded in such condition that such parts may fall, collapse, or be weakened by wind pressure or vibration.”  The latter provision requires that “continuing inspections shall be made…as the work progresses to detect any hazards to any person resulting from weakened or deteriorated floors or wall or from loosened material…”

The lower court found a question of fact as to the applicability of these provisions indicating that one could conclude that the broken mirror was “a hazard arising from loosened material,” as the defendant failed to guard the mirror from falling into large broken pieces.  The First Department disagreed finding that the “loosened material” referenced in the violation must be material loosened by the progress of demolition.  This type of loosening might evade notice until it falls.  Here, the mirrored panel did not break because it was weakened by the progress of demolition or dismantling; rather, it was being deliberately loosened in order to be removed.  Thus, neither shoring nor bracing nor continued inspections could have prevented it from breaking and injuring plaintiff. 

Take Away:  It should be noted, an introductory matter, to trigger 241(6) the work must constitute construction, excavation or demolition work.  The Court clearly expressed hesitancy concerning plaintiff’s argument that he was dismantling a structure at the time of the accident (i.e., demolition).  Accordingly, instead of making a determination on this point (or in other words determining whether 241(6) is even triggered), the Court elected to skip straight to the language of the cited violations.  Specifically, it stated “[i]t is clear, therefore, that the code provisions cited by the plaintiff are inapplicable to his claim, and therefore even if we accepted that the plaintiff was engaged in the demolition or dismantling of a structure” the claim cannot survive summary judgment.  It is interesting that the court would duck this issue. 

 

04/26/12          Wowk v. Broadway 280 Park Fee, LLC
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_03274.htm

Court found that routine exterior window washing did not trigger Labor Law § 241(6).

04/17/12          Ramcharan v. Beach 20th Realty, LLC
Appellate Division, Second Department     
http://www.nycourts.gov/reporter/3dseries/2012/2012_02854.htm

This decision contains few facts concerning how the accident occurred.  All we are told is that Plaintiff sustained a fatal injury while performing electrical work at a warehouse.  In attempting to establish a 241(6) claim, plaintiff asserted that defendant violated 22 NYCRR 23-9.8(k).  This is the only violation alleged. 

Ultimately, the Court found that this provision lacked the specificity to support a cause of action under the labor law.  While Plaintiff for the first time on appeal raised another provision, the Court refused to consider it as it was not brought before the trial court.   

Take Away:  In case you were curious, 23-9.8(k) is entitled “Riding on forks” and provides that “[n]o person shall stand or ride on the forks of a moving fork lift truck.”  This sheds some light on how the accident occurred. 

 

04/12/12          Van Hoesen v. Dolen
Appellate Division, Third Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_02737.htm

Plaintiff was injured while erecting an indoor horseback riding arena on property owned by defendant.  The Court dismissed the 241(6) claim based on the homeowners exemption that applies to the owners of one-or two-family dwellings who do not direct or control the work being performed.  It held that defendant did not lose the protection of the exemption by hiring contractors, arranging for the use of equipment, or purchasing material.    

 

 

Labor Law Section 200 and Common Law Negligence

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

This past April has brought a bit of everything.  85 degree temperatures, golf course openings, major snow storm warnings, major snowstorm warning cancellations, wind, rain, hail, and sunny skies again.  Mow the lawn, shovel the driveway, mow the lawn again…

April’s Labor Law 200 cases bring a similar mix of the familiar and unfamiliar. 

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. 

4/26/2012        Wowk v Broadway 280 Park Fee, LLC, 2012 NY Slip Op 3274 
Appellate Division, First Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03274.htm

Plaintiff, a professional window washer, was injured while carrying water up to the scaffold upon which he worked, when he fell down the fixed exterior staircase that provided the sole means of access to the scaffold.  Plaintiff raised an issue of fact whether defendant had constructive notice of a dangerous condition on the work site, based on a recurring condition.  Plaintiff testified that the treads on the staircase were wet when he was ascending and descending them, that the wetness was caused by condensate from the nearby air conditioning units and their water tanks, and that there was moisture on the same part of the staircase every morning in August and September until 10 or 11 a.m., when it burned off.

 

4/17/2012        Arredondo v. Valente, 2012 NY Slip Op 2821 
Appellate Division, Second Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02821.htm

The plaintiff was hired to perform auto body repair work on a vehicle owned by the defendant. While in the garage of the defendants' home, the plaintiff was operating a torch on the trunk of the vehicle when his shirt allegedly caught fire. The plaintiff made claims for common-law negligence and violations of Labor Law § 200 alleging that the defendants had constructive notice that the torch which they provided to him was defective and that this defect was the proximate cause of his injuries. The Second Department reversed the trial court and dismissed the claim against the defendant, finding that plaintiff’s expert affidavit alleging that a lack of adequate ventilation in the garage caused the accumulation of gas which, in turn, could have been ignited by a spark, was speculative and conclusory, and did not constitute proof in admissible form sufficient to raise a triable issue of fact.

 

4/12/2012      Van Hoesen v Dolen, 2012 NY Slip Op 2737 ,
Appellate Division, Third Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02737.htm

Defendants decided to construct an indoor horseback riding arena on their property.  They purchased lumber and materials, had the site graded and prepared, arranged for the use of a crane, and entered into an oral agreement with a contractor to erect the arena's frame and roof. Plaintiffs were employed by the contractor as laborers and were in the process of installing roof trusses when the trusses collapsed, causing them to fall approximately 20 feet to the ground.
To hold defendants liable on their common-law negligence and Labor Law § 200 claims, plaintiffs were required to demonstrate that the defendants both exercised supervisory control over the operation and had actual or constructive knowledge of the unsafe manner in which the work was being performed.  Defendant property owner testified that although he was generally aware that the arena was to be a pole barn with roof trusses, he was not familiar with the construction details, that he provided no instructions to the contractor other than the arena's intended size and orientation, and that his only involvement with the contractor’s work was to visit the site "sporadically" to check on its progress. Further, plaintiffs testified that they were supervised by their employer and never discussed their work with the defendants. Thus, their testimony was insufficient to create issues of fact as to the defendants’ control of the work, and Supreme Court properly dismissed the common-law negligence and Labor Law § 200 claims against them.

 

4/3/2012          Kuffour v Whitestone Constr. Corp., 2012 NY Slip Op 2460 
Appellate Division, Second Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02460.htm

Plaintiff, a public school security guard, was rendered unconscious when he was struck on the right side of his head by a brick as he attempted to enter his security booth. The security booth was located in a secured storage area of the school's playground where the defendant, the general contractor for a construction project at the school, used the storage area to store, inter alia, a 6 to 6 1/2-foot-high stack of bricks. The Second Department ruled that the trial court should have granted those branches of the defendant's motion which were for summary judgment dismissing the plaintiff's Labor Law causes of action, as the defendant demonstrated, prima facie, that the plaintiff was not a person entitled to the protections of these statutes.  However, with regard to the common-law negligence cause of action alleging that the defendant failed to maintain the premises in a safe condition, the defendant failed to establish its prima facie entitlement to judgment as a matter of law. Where, as here, a plaintiff's injuries allegedly stem from a dangerous condition on the premises, a general contractor may be liable in common-law negligence if it has control over the work site and either created or had actual or constructive notice of the dangerous condition.

 

 

Indemnity Issues in Labor Law

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

04/20/12   Bermingham v Peter, Sr. & Mary L. Liberatore Family Ltd. Partnership
Appellate Division, Fourth Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_02984.htm

Although the above case is not rooted in the Labor Law, per se, the Fourth Department’s decision is useful nonetheless.  Herein, the Appellate Division offers an interesting distinction between common law indemnification and common law contribution that is not commonly seen.  The basic facts of the dispute involve a slip and fall incident which resulted in injury to the plaintiff.  Upon being named as a defendant, owner commenced a third-party action against its snow plow contractor, S&K Landscaping.  Because there was no contractual indemnity provision, owner’s claims against S&K were limited to common law indemnification/contribution. 

For some reason which we don’t quite understand, the third-party action was severed prior to trial. At the conclusion of the main-party trial (which resulted in 100% liability finding against the owner), S&K moved for summary judgment dismissing the third-party action.  The Trial Court, finding a question of fact, denied S&K’s motion in its entirety. 

With regard to owner’s common law contribution claim, the Court cited to the well-known Espinal standard when it ruled that S&K owed no duty to the plaintiff.  Accordingly, as S&K could not be liable to the plaintiff, there was no basis for a contribution claim.

However, defendant/owner smartly argued that the Espinal standard did not apply to a common law indemnity claim.  Under a common law indemnity analysis, the comparative fault of S&K is irrelevant.  Either (a) S&K was purely vicariously liable due to the negligence of S&K or (b) defendant/owner bore some level of liability.  If there is a finding of 1% against defendant/owner, it follows the indemnity claim would fail.  In denying S&K’s motion, the Court effectively ruled that a question of fact existed as to whether defendant/owner was purely liable due to acts of another (ie., S&K was the only “active” tortfeasor)

Peiper’s Point – Hats off to owner’s counsel for creatively pointing out this important distinction to the Court.  Well done, Jim.

 

04/20/12   Colonial Surety Company v. Genesee Valley Nurseries, Inc.
Appellate Division, Fourth Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_02983.htm

In this case, the Fourth Department reiterates the well-established principles that contractual indemnity provisions must be strictly construed to avoid creating an indemnity obligation where one was not specifically contemplated.  This rule extends to claims for attorneys’ fees arising out of a contractual indemnity claim.  Essentially, a party will not be obligated to provide indemnity for attorneys’ fees unless the contract specifically provides for it.

In the instant case, the indemnity clause at issue provided attorneys’ fees for “attempting to recover losses or expenses from [defendants] or third parties.”  When faced with the breadth of this clause, the Fourth Department noted that if attorneys’ fees were not available in this circumstance, it is hard to imagine when they would ever be recoverable.  Accordingly, the motion for contractual indemnification was granted.

Peiper’s PointAlthough not a Labor Law decision, this is still useful to the persnickety Labor Law practitioner.  In addition to indemnity protections, common law and/or contractual indemnity claims also provide a basis to shift expenses in litigation.  While those fees incurred in prosecuting indemnity claims are generally not recoverable, all defense fees accrued in the main-party action may be shifted.  In the above decision, the Fourth Department again points out that indemnity provisions, and particularly attorney’s fees provision contained within indemnity provisions, must be strictly construed. 

 

04/19/12  Coonjbeharry v. Altone Electric, LLC   
Appellate Division, Third Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_02921.htm

Plaintiff sustained injury when his arm became entangled in an auger at a premises owned and operated by NY Rubber Recycling (“NYRR”).  At the time of the incident, plaintiff was attempting to unclog a rubber jam, and all parties agree that he was acting within the scope of his employment with Permalife.  Importantly, Permalife is the parent corporation of NYRR.

After the incident, plaintiff applied for, and was awarded, workers’ compensation benefits from Permalife.  Thereafter, plaintiff commenced the instant action against NYRR and Altone Electric, LLC.  NYRR responded by moving for summary judgment on the basis of Workers’ Compensation Law § 11’s statutory bar on employer liability.  Altone also moved for summary judgment on the basis that it did not own, nor maintain, the augor or air-table where plaintiff sustained injury.

In affirming the Trial Court, the Appellate Division stated that NYRR was a wholly owned subsidiary of Permalife.  As such, NYRR was nothing more than alter-ego of Permalife, and NYRR (as well as Permalife) were entitled to exclusivity protections of the Workers’ Compensation Law.  In support of the decision, the Court noted that Permalife prepared and paid taxes on behalf of both Permalife and NYRR.  It was also noted that both Permalife and NYRR supervised, directed and controlled plaintiff’s daily work activities. 

With regard to Altone’s motion, the Court also affirmed the Trial Court’s dismissal of plaintiff’s claim.  In so holding, the Court noted that Altone did not install, nor maintain, the auger in question.  Rather, uncontroverted testimony established that the machine was installed by a former Altone employee after he left the company’s employ.

Peiper’s PointOkay, so this is a Labor Law decision.  It is not, however, an indemnity provision.  What can I say, I cannot be held within the confines of one fact pattern.  Just a quick reminder, the Labor Law applies to “owners” and “contractors.”  If you are neither, you are not liable.  Something to remember.

 

04/17/12 Ramcharan v. Beach 20th Realty, LLC
Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_02854.htm

On August 19, 2005, Ramcharan (“decedent”) was fatally injured while performing electrical work at a warehouse owned by Beach and leased to Unlimited. The decedent was employed by Excel.  The estate of the decedent sued Beach, the owner and it commenced a third-party action against, among others, the lessee, Unlimited and the decedent’s employer, Excel.

Excel moved for summary judgment dismissing Beach's third-party cause of action alleging breach of contract for failure to procure insurance against it." The contract language merely requires the purchase of insurance.  It did not require that the owner, Beach, be listed as an additional insured.  Excel was required to provide Beach with certificates of insurance from all subcontractors listing Beach as an additional insured. 

Beach also claim claimed that it had a valid contractual indemnification claim against United. However, the lease between Beach and Unlimited does not reflect Unlimited's "unmistakable intent" to indemnify Beach for any claim that does not result from any negligence on the part of Unlimited or Unlimited's contractors, agents, employees, or invitees. The lease provided that Unlimited is required to indemnify and hold harmless Beach "from all liabilities, obligations, damages . . . [and] claims . . . as a result of . . . the carelessness, negligence or improper conduct of [Unlimited], [Unlimited's] agents, contractors, employees, invitees or licensees." Unlimited established that Excel was a contractor retained by Beach, and therefore not an agent or contractor of Unlimited.

Peiper’s Point – The above review comes from Dan Kohane’s column in Hurwitz & Fine’s Coverage Pointers newsletter.  Although it was written from an insurance coverage perspective, the case is just as pertinent for Labor Law aficionados.  In keeping with our constant refrain…the Contract, the Contract, the Contract…again actually governs the actual indemnity obligations of parties thereto.  What it might mean, what it used to mean, what it was intended to mean, how it was meant to  be interpreted in the future all have no bearing on the enforceability of the Agreement.  Indemnity provisions are strictly construed, and if the claim does not fall neatly within the four-corners of the document there is a better than likely chance that any potential obligations thereunder will not be applicable.

 

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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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