Labor Law Pointers

Volume I, No. 8
Wednesday, June 6, 2012

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

 

From the Editor:

Welcome to the June edition of our Labor Law newsletter.  To start we want to congratulate Jennifer Ehman and her husband Mike on the birth of their new daughter, all of them are doing very well.  During Jennifer’s absence I will be covering both the 240(1) and 241(6) cases. 
This month brings a variety of interesting cases but again no new Court of Appeals cases.  I want to welcome our new readers this month, hope you enjoy our offerings.
We continue to provide training to any and all interested in our labor law seminar, we can provide any depth or of training you may want or need, from the basic issues to a more complex presentation.  We will travel to your location and are flexible in scheduling times.
Hope you enjoy this edition, feel free to send any comments, I always appreciate them.
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]
                                                                                               

5/31/12            Albert Lazri v. Kingston City Consolidated School District
Appellate Division, Third Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04266.htm

Plaintiff fell to the ground and was injured while installing a drip edge on the roof of a building.  The plaintiff was not provided safety devices on the day of the accident.  Plaintiff brought suit, alleging negligence and violations of provisions of the Labor Law.  The real issue however is that plaintiff, an employee of a sub, was working on a Sunday and the job site was to be a Monday to Friday job site absent specific permission of the Construction manager.  The plaintiff said that he was directed by his employer to work on the Sunday and the construction Manager said that no one asked for permission to work on Sunday. The trial court found that because discovery had not yet been conducted, plaintiff’s motion for partial summary judgment was premature and held it in abeyance.  The Third Department however held that there was a question of fact as to whether the job site was closed at the time of plaintiff’s accident, and thus, plaintiff’s motion for summary judgment should not have been held in abeyance but rather denied.    

Practice Point- The interesting question not addressed is that if the construction manager did not give permission for anyone to work on Sunday, and the plaintiff’s employer told him to work on Sunday, where does it leave the plaintiff.  He would not have known that he was not to work on Sunday, or that his employer did not have permission for him to do so.  Recall that the plaintiff must be on the site validly to be a proper plaintiff.  Thus, if the site was closed and plaintiff knew he was not to be there, it would be Summary Judgment for the defendant.  However this case seems to be different, where the construction manager did not give permission to the plaintiff’s employer how can they, or for that matter the owner, be held liable under the labor law where they have no knowledge that anyone is even working.  The plaintiff does and cannot have a valid cause of action as against own employer who told him to work at that time.  Interesting case, should be fun to watch and see what happens if and when it comes back around. 

 

5/31/12            Bonifacio Hernandez v. The Argo Corp.
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_04224.htm

Plaintiff was injured while working on a scaffold that required workers to regularly travel across an open and unguarded gap of three feet.  The trial court granted plaintiff’s motion for partial summary judgment on a Labor Law § 240(1) claim, and denied defendant’s motion for summary judgment dismissing the § 240(1) claim.  The First Department found that deposition testimony of the various defendants was not conclusive on the procedure that workers were supposed to follow when crossing the gap.  The defendants’ arguments focused nearly exclusively on the conduct of the plaintiff, namely that the plaintiff detached himself from the rope safety line before jumping across the gap.  The court held that the defendants failed to rebut the evidence that they provided an inadequate safety device, and therefore, the plaintiff’s conduct could not have been the sole proximate cause of the accident. 

Practice Point- Where there is a gap that the plaintiff needs to jump across and no safety devise is provided for him as he jumps across it is a long and very uphill fight for the defendant.  As there was no safety device available for the plaintiff when crossing the gap and he fell it is a statutory violation and thus plaintiff cannot be the sole proximate cause of the fall and injury.

 

5/30/12            Andresky v. Wenger Construction Co., Inc.
Appellate Division, Second Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04116.htm

Plaintiff, while shoveling concrete out of a container which had been placed on the planks of a scaffold, was injured when the container tipped over and pulled him to the ground.  The plaintiff observed that one-third of the container, which was raised onto the scaffold by a forklift, was hanging over the edge of the planks of the scaffold.  The container did not exhibit any instability prior to the accident.  After the plaintiff had removed about fifteen shovelfuls of concrete, the container tipped over and off the edge of the scaffold, which pulled the plaintiff to the ground as he was removing his shovel from the container.  The trial court denied plaintiff’s motion for summary judgment on the issue of liability pursuant to a Labor Law § 240(1) cause of action. 

The Second Department found that falling object liability is not limited to cases in which the falling object is in the process of being hoisted or secured, rather, it may be imposed where an object that fell and caused injury was a load that required securing for the purposes of the undertaking at the time it fell.  The court found that the plaintiff established a prima facie case that the container of concrete constituted a load that required securing and that the defendant’s failure to use an appropriate safety device to secure it was a proximate cause of the injury. 

Practice Point- The bottom line is that the load that being hoisted no longer needs to hit the plaintiff to bring liability under 240(1).  Recall the Runner case, (http://www.nycourts.gov/reporter/3dseries/2009/2009_09310.htm) where the plaintiff was not hit by the falling object but injured his hands trying to control the descent of the object, a spool of wire, being lowered down stairs,  "the applicability of the statute in a falling object case . . . does not . . . depend upon whether the object has hit the worker". "The relevant inquiry . . . is rather whether the harm flows directly from the application of the force of gravity to the object".

 

5/31/12            Ghany v. BC Tile Contractors, Inc.
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_04211.htm

Plaintiff, a stonemason, was injured when he tripped over a small stone while carrying a stone weighing approximately 100 pounds across an open, grassy area.  The small stone he tripped on was either created during the delivery of stones to the worksite, or when the larger stones were sized by plaintiff and his coworkers.  The trial court granted the defendants’ motion for summary judgment dismissing the complaint and denied plaintiff’s motion for partial summary judgment on the issue of liability on a Labor Law § 240(1) claim.  The First Department affirmed, holding the record established that the impetus for the heavy stone’s fall was plaintiff’s tripping on ground level, rather than the direct consequence of gravity.  Therefore, the protections of            § 240(1) were not implicated. 

Practice Point-  Runner does not apply in all cases however.  Here the plaintiff carrying a heavy rock when he trips and falls and thus the cause of the injury was the trip and fall and not the falling of the rock he was carrying.

 

5/29/12            Soto v. J. Crew Inc.
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_04090.htm

Plaintiff, an employee of a commercial cleaning company that was contracted to provide general daily maintenance services, was injured when he fell of an A-frame ladder while dusting the top of a shelf.  The trial court granted the defendants’ motion for summary judgment dismissing the complaint, and denied plaintiff’s cross motion for summary judgment on the issue of liability on a Labor Law § 240(1) cause of action.  The First Department affirmed, holding that the dusting of the shelf constituted routine maintenance and was not the type of activity that is protected under § 240(1).  The court held that the term “cleaning” as used under the statute is not to be broadly applied, as suggested by the plaintiff. 

Practice Point- The simple cleaning of a shelf is not “cleaning as contemplated by the statute.  This is a case following the line of reasoning set forth in Dahar (http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01322.htm) where cleaning as a portion of the manufacturing process was not a protected activity under 240(1).

 

5/22/12            Augustyn v. City of New York
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_03953.htm

Plaintiff sustained injuries when he fell from a sidewalk bridge while removing lead paint at a building owned by the city.  Plaintiff brought suit against the city and general contractor.  The trial court denied plaintiff’s motion for partial summary judgment on the issue of liability under a Labor Law § 240(1) claim, and granted the defendants’ motion for summary judgment dismissing the claims asserted against them.  The First Department modified this decision, denying the city’s motion insofar as it sought summary judgment dismissing the § 240(1), reinstate that claim as against the city and general contractor, and grant plaintiff’s motion for partial summary judgment on the issue of liability on the § 240(1) claim.  The court held that although the plaintiff was not removing lead paint from a fire escape at the time of the fall, he was walking across the bridge to set up a tent in preparation for lead paint removal and another fire escape.  This work was part of the overall lead paint removal project, and was performed at an elevated.  Therefore, plaintiff’s activity was protected by § 240(1), and the activity required proper protection from falling of the bridge. 

Practice Point- Where, as here, the plaintiff needs to traverse an area where a safety devise would be necessary were he actually working there, and he falls during that portion of his work, it is generally a labor law violation.  Here the owner and the employer both testified that the plaintiff and his co-workers were not required to wear a safety harness while crossing the sidewalk bridge but only while working on the fire escapes.  

 

5/17/12            Stallone v. Plaza Construct Corp.
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_03870.htm

Plaintiff was injured while descending a fixed fourteen foot ladder linking upper and lower platforms on a large crane, when his foot slipped on a metal rung and he fell thirteen feet to the next platform below.  The trial court denied plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim.  The First Department found that the permanently affixed ladder was the only means by which plaintiff could reach his elevated work site and, as such, the device was within the meaning of § 240(1).  Because the ladder proved to be an inadequate protection from the force of gravity, and the injuries sustained were at least partially attributable to defendants’ failure to take mandated safety measures to protect him from elevation-related risks, the court modified the decision and held plaintiff was entitled to partial summary judgment. 

Practice Point- Where the plaintiff’s foot slips on a fixed ladder the assumption here is that the ladder, the provided safety device, failed to shield the plaintiff from harm flowing directly from the application of gravity.  The deposition of the plaintiff in such a situation must focus on the fact that the ladder was not defective in any way and here, it appears that even that may not be enough.

 

5/15/12            Saldivar v. Lawrence Development Realty, LLC
Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_03827.htm

Plaintiff was injured while performing storefront removal and demolition work at a commercial center owned by defendant.  To demolish the façade of the storefront, the plaintiff was standing on a makeshift scaffold that consisted of two-inch by six-inch wooden planks running from the step immediately below the highest step of one A-frame ladder positioned approximately six feet away.  After cutting the façade with a “saws-all,” he turned to place the tool down when the section he had just cut ripped loose and swung down, striking the scaffold and causing it to collapse, sending the plaintiff falling to the ground.  After plaintiff’s fall, the remainder of the upper façade landed on top of him. 

The trial court denied plaintiff’s motion for summary judgment on the issue of liability under a Labor Law § 240(1) cause of action and granted defendant’s cross motion dismissing the complaint contending the action was barred by Workers Compensation Law §§ 11 and 29(6).  Plaintiff then moved for leave to reargue their motion and opposition to cross motion.  The trial court granted the motion, and upon reargument, in effect, vacated the previous order and granted plaintiff’s motion for summary judgment on § 240(1) liability, and denied defendant’s cross motion.  The Second Department affirmed, holding that the collapse of the makeshift scaffold when it was struck by the façade established that the scaffold failed to afford the plaintiff proper protection for the work being performed, and the failure was a proximate cause of plaintiff’s injuries. 

Practice Point- Even where the plaintiff, engaged in demolition, causes the exact item he is demolishing to fall on the scaffold causing the scaffold to fail and plaintiff to fall, the court has held that the failure of the scaffold which is a proximate cause of the injury and this the plaintiff cannot be the sole proximate cause of the injury.  Recall that to prevail on the sole proximate cause argument the plaintiff must have 1) an available and 2) appropriate safety device which he has 3) been advised to utilize.  Failure of any one of these steps dooms a sole proximate cause defense.

 

5/15/12            Robinson v. Goldman Sachs Headquarters, LLC
Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_03824.htm

Plaintiff, a sheet-metal worker, was injured when he fell approximately five feet from an unsecured, eight-foot, wooden A-frame ladder.  The Plaintiff testified at deposition that his fall from the ladder was caused by a front foot of the ladder kicking out, which caused the ladder to begin “walking the floor”.  The trial court denied plaintiff’s motion for summary judgment on the issue of liability on a Labor Law § 240(1) cause of action.  The Second Department affirmed, holding that the defendants raised a triable issue of fact as to whether the foot of the ladder simply kicked out and the ladder fell over, or if it was the plaintiff’s own carelessness that was the sole proximate cause of the fall. 

Practice Point- In this case the plaintiff had offered differing versions of the accident including one where he said that he simply lost his balance and fell from the ladder.  Where the plaintiff has offered a version of the accident which does not involve a violation of the labor law and also a different version of the accident which does, it creates a question of fact.  This is why a careful investigation to obtain all accident reports and review all medical records carefully. 

 

5/10/12            Carchipulla v. 6661 Broadway Partners, LLC
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_03732.htm

Plaintiff was injured when he fell off a ladder that “shook.”  The trial court denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for partial summary judgment on the issue of liability under Labor Law § 240(1).  The First Department affirmed, holding the plaintiff was not required to present evidence of a specific structural defect in the ladder. 

Practice Point- Where a ladder “shifts”, “shakes” or moves under the plaintiff causing him to fall plaintiff has a very solid case.  This can be an un-witnessed accident as well.

 

5/8/12              Eustaquio v. 860 Cortlandt Holdings, Inc.
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_03565.htm

Plaintiff was injured when he fell from a ladder.  The trial court granted plaintiff’s motion for partial summary judgment on the issue of liability on a Labor Law § 240(1) claim.  The First Department affirmed, holding that the plaintiff and other workers were instructed to use the ladder to access the roof, and that there was no evidence to show that the workers were expected or instructed to use a harness while ascending or descending a ladder.  The defendant’s evidence was insufficient to raise a triable issue of fact as to whether plaintiff was the sole proximate cause of his injuries because a sworn statement (which was translated from Greek to English) of the foreman of the plaintiff’s non-party employer, prepared by a private investigator, was inadmissible because the statement was not accompanied by an attestation by the translator setting forth her qualifications and the accuracy of the translation.  Further, the defendant could not show the plaintiff was recalcitrant in failing to secure the ladder with a rope before using it, because the testimony provided by the defendant did not come from a person with personal knowledge of the accident or the condition of the ladder at the time of the accident.  

Practice Point-  Not only do you need to have evidence that plaintiff was instructed to use an available and appropriate safety device but the evidence needs to be in admissible form.  The evidence that the harnesses were available at the work site was in admissible form but the fact that the plaintiff was instructed to use them was not dooming the motion.

 

 

Labor Law Section 241(6)

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

 

 5/31/12           Ghany v. BC Tile Contractors, Inc.
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_04211.htm

Plaintiff, a stonemason, was injured when he tripped over a small stone while carrying a stone weighing approximately 100 pounds across an open, grassy area.  The small stone he tripped on was either created during the delivery of stones to the worksite, or when the larger stones were sized by plaintiff and his coworkers.  The trial court granted the defendants’ motion for summary judgment dismissing the complaint.  The First Department affirmed, holding plaintiff did not have a viable claim under Labor Law § 241(6).  The court found that the Industrial Code provisions plaintiff relied upon (12 NYCRR 23-1.7(d) and 12 NYCRR 23-2.1(a)(1)) were inapplicable because the accident occurred in an open, grassy area, rather than a “passageway” or “walkway.”  Further, the court found that the small stone on which the plaintiff fell “was ‘an unavoidable and inherent result’ of the work being performed at the site.”   

Take Away:  Nothing new here but a good reminder that “passageway” or “walkway” is not the entire worksite if someone is walking there but needs to be better defined.

 

5/23/12            Sanders v. St. Vincent Hospital
Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_03993.htm

Plaintiff, tripped and fell claiming violations of Labor Law § 241(6).  The trial court denied defendant’s motion for summary judgment and granted plaintiff’s cross motion for leave to serve an amended bill of particulars.  Plaintiff alleged a violation of 12 NYCRR 23-1.7(e)(2) for the first time in opposition to the defendant’s motion for summary judgment. 

The Second Department affirmed holding the plaintiff’s amendment presented no new factual allegations or new theories of liability, and did not prejudice the hospital.  Further, although plaintiff raised his allegation of the specific Industrial Code provision for the first time in opposition to the defendants motion for summary judgment, this was not fatal to his claim, and was sufficient to raise a triable issue of fact regarding the defendant’s § 241(6) liability.  The court further articulated that 12 NYCCR 23-1.7(e)(2) is “inapplicable where the object ‘over which the [plaintiff] alleges he [or she] tripped was integral to the work being performed.’”  However, in the present case, the court found the hospital’s own submissions presented triable issues of fact as to whether the object, if any, over which the plaintiff tripped and fell was integral to the work being performed. 

Take Away:  The plaintiff in this case had not alleged a specific applicable regulation prior to the defendant filing of the Summary Judgment motion.  When the plaintiff made a motion to amend the verified bill of particulars to add a specific regulation when opposing the defendant’s Summary Judgment motion it was allowed as long as it did not raise a new or different factual or legal scenario.

 

5/22/12            Chambers v. Tom
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_03937.htm

Plaintiff fell and was injured while working on defendant’s home.  The trial court granted defendant’s motion for summary judgment dismissing the complaint and all cross claims against him.  The First Department affirmed, holding that the defendant fell with the exemption of Labor Law § 241(6) liability, “as an owner of the one-family dwelling who contracted for, but did not direct or control the subject work.”  The court found that defendant’s instructions to plaintiff and his employer were limited to indicating generally where the wood should be installed.  Because defendant did not instruct how to cut the wood, nor did he provide the circular saw that plaintiff was using at the time of the accident, defendant’s involvement in the project did not constitute direction or control over plaintiff’s work. 

Take Away:  Once again the single family exemption works where, as here, the defendant did not direct the means and manner by which the plaintiff was doing his job. 

 

5/22/12            Butler v. Quest Property Management V. Corp.
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_03946.htm

Plaintiff brought suit against defendants alleging, among other claims, a violation of Labor Law             § 241(6).  The trial court granted defendant’s cross motion for summary judgment dismissing plaintiff’s § 241(6) claim.  With regard to the § 241(6) claim, the First Department affirmed the trial court’s decision to grant defendant’s cross motion.  The court found no evidence that plaintiff was engaged in construction, excavation or demolition work, and therefore, plaintiff’s activity was outside the scope of § 241(6). 

Take Away:  Remember that under 241(6) the plaintiff must be involved in construction, demolition or excavation unlike 240(1) which covers a much broader range of activities.

 

5/10/12            Kutza v. Bovis Lend Lease LMB, Inc.
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_03751.htm

Plaintiff was a worker who was injured when he tripped and fell at the work site.  The trial court denied defendants’ motion for summary judgment dismissing, among other claims, a claim for Labor Law § 241(6).  The first department affirmed the portion of the trial court’s decision that denied defendants’ motion for summary judgment dismissing § 241(6).  The defendant argued that plaintiff relied on 12 NYCRR 23-1.7(e)(2), which does not apply where a worker trips over materials that are being used by tradesmen at the time of the accident.  The court reasoned that the evidence indicated that the debris on the floor that plaintiff tripped over consisted of materials used by other tradesman who had allegedly departed the area.  This, at minimum, raised triable issues as to the nature of the materials plaintiff tripped over. 

 

5/8/12  Thompson v. BFP 300 Madison II, LLC
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_03560.htm

Plaintiff injured his hand while moving a large fan coil box.  The trial court granted defendant’s motion for summary judgment dismissing causes of action pursuant to Labor Law §§ 241(6) and 200.  The First Department affirmed, holding that the Industrial code provisions on which plaintiff’s relied involved tripping hazards, sharp objects (12 NYCRR 23-1.7(e)) and material piles (12 NYCRR 23-2.1(a)), which were inapplicable to the present case. 

Take Away:  Make sure that the regulations claimed are carefully read to see if they are applicable to the facts of the case.  Here plaintiff injured his hand while moving a heavy object alone and the regulations claimed violated regulated tripping hazards and material piles which were not the cause of the actual injury.

 

5/8/12              Nai Ren Jiang v. Yeh
Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_03612.htm

Plaintiff was injured when a piece of wood “kicked back” and struck him in the eye, while he was cutting the wood with a table saw.  Among several causes of action brought by the plaintiff was a claim of violation of Labor Law § 241(6).  The defendant moved for summary judgment to dismiss plaintiff’s § 241(6) claim, claiming that the one and two-family homeowner exception applied.  The trial court granted the defendants motion. 

The Second Department affirmed, reasoning that this exception “was enacted to protect those who, lacking business sophistication, would not know or anticipate the need to obtain insurance to cover them against absolute liability.”  The court then articulated a two-prong test required to receive the protection of the homeowners’ exemption.  First, “the defendant must show that the work was conducted at a dwelling that is a residence for one or two families.”  Second, the defendants cannot direct or control the work.  The court found that the defendants established that their home was a single-family private residence and that they did not direct or control the work.  Instead, the court found that the defendant’s involvement was “merely a retention of the limited power of general supervision, and was no more extensive than would be expected of the typical homeowner who hired a contractor to renovate his or her home.”  The defendant did not assume the role of a general contractor merely by hiring separate contractors to perform different aspects of the project.  Further, the fact that the defendant owned the table saw that was used and consequently injured the plaintiff does not establish that he directed or controlled the work, nor does it serve as a predicate for liability outside of the homeowners exemption. 

Take Away:  Interesting that in the Chambers case above the first department discussed that the exemption was applicable mentioning that one of the reasons was that the homeowner did not provide the saw to the plaintiff while here the second allows the exemption where the defendant did actually provide the saw to the plaintiff.  In this case the plaintiff made a statement that the defendant did not control or direct his work and later provided an affidavit that the defendant did control and direct his work.  The affidavit was held to have been an attempt to create a question of fact using his own conflicting versions to avoid Summary Judgment and was not considered by the court.  This is an important issue to remember when the opposing party provides an affidavit which contrasts to the deposition testimony.

 

Labor Law Section 200 and Common Law Negligence

by:    V. Christopher Potenza

(716) 849-8933
[email protected]


As they say, April showers bring May flowers.  Well, May’s limited number of Labor Law 200 decisions is just enough to make a small bouquet with a sample the various defenses available to these claims. 
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. 
5/31/2012        Hernandez v Argo Corp., 2012 NY Slip Op 4224 
First Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04224.htm

At this worksite, the configuration of the scaffold required workers regularly to travel across an open and unguarded gap of three feet. To cross this gap, plaintiff detached himself from the rope safety line before jumping across the gap.  As to the Labor Law § 200 and common-law negligence claims, the First Department ruled that there was an issue of fact as to whether Accura (the general contractor) exercised daily oversight of safety of the workers of the subcontractors, provided all materials, and played a role in designating where they would be kept and how accessed, and had the authority to control the activity that brought about plaintiff's injury.  The Court further ruled that issues of fact existed as to whether Accura was not only aware of the defective scaffold but also created the defect as there was evidence that the subcontractor installed the scaffold under Accura's direction, and that Accura placed the ladder in a location that necessitated the unusual configuration of the scaffold.

5/31/2012        Ghany v BC Tile Contrs., Inc., 2012 NY Slip Op 4211 
First Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04211.htm

As there was no evidence that the general contractor, A.F. & Sons, LLC,  exercised supervision and control over the work or had actual or constructive notice of the alleged defective condition,  the common-law negligence and Labor Law § 200 claims were dismissed against the GC.  The common-law negligence and Labor Law § 200 claims were also dismissed against the subcontractor, B.C. Tile. While plaintiff claimed that B.C. Tile supervised his employer, a nonparty landscaping company, and therefore was a general contractor, this claim was controverted by plaintiff’s admission at his deposition that he did not know which entity was responsible for what work, and both defendants testified that B.C. Tile was merely a subcontractor at the site and that A.F. & Sons, LLC was the general contractor.

5/23/2012      Schwind v Mel Lany Constr. Mgt. Corp., 2012 NY Slip Op 3994 
Second Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03994.htm

The plaintiff allegedly was injured when he fell on untaped masonite covering the landing of a staircase while working at a construction project at a residence owned by the defendant Charlene Khaghan. The Second Department reversed the trial court and granted summary judgment on Labor Law § 200 to the defendant Charlene Khaghan.  The First Department determined that the plaintiff's alleged injuries arose from the manner in which the work was performed as the masonite that allegedly caused the plaintiff's accident was installed by a subcontractor as a result of, and during the course of, the ongoing work at the construction site and the defendant established that she did not have the authority to exercise the degree of direction and control necessary to impose liability under Labor Law § 200. 

5/8/2012          Thompson v BFP 300 Madison II, LLC, 943 N.Y.S.2d 515 
First Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03560.htm

Plaintiff injured his hand while moving a large fan coil box, which he did without the assistance of others. The Labor Law § 200 and common-law negligence claims as against all defendants were dismissed, since plaintiff's injury was caused not by a dangerous condition on the work site, but by the method or manner in which he chose to accomplish the task of moving the object without any supervision or control by the defendants.
That’s it for May, is it summer yet? 

 

 

Indemnity Issues in Labor Law

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

05/31/12          Wolfe v Irving Tissue, Inc.
Appellate Division, Third Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_04259.htm

Plaintiff sustained injury when he fell down a set of stairs at defendant’s plant.  Plaintiff’s fall was caused due to the buildup of construction debris.  Upon being named as a defendant, Irving commenced a third-party action against its janitorial service, North Country, and its management services contractor, Rust. 

With respect to Irving’s contractual indemnity claim against North Country Janitorial, the Court found a question of fact as to whether a valid contract existed.  It appears as though North County had performed janitorial services for Irving for a number of years.  This included a proposal every year, as well as the inclusion, by reference, of “general terms and conditions.”  The “general terms and conditions” provided, among other things, the contractual indemnity language at issue.

Irving maintained that the “general terms and conditions” was incorporated into the 2009 service contract at issue.  North Country, on the other hand, argued that the “general terms and conditions” were not specifically incorporated into the 2009 agreement.  Accordingly, a question of fact existed as to whether North Country accepted the 2009 agreement with the “general terms and conditions” included, or whether North Country’s actions in performing the agreement resulted to North Country’s acceptance of the terms that had been part of the preceding years’ contracts.

 

05/23/2012         Campoverde v Fabian Builders, LLC
Appellate Division, Second Department
 http://www.nycourts.gov/reporter/3dseries/2012/2012_03973.htm

Plaintiff was injured while working at a jobsite owned by Fabian Builders, LLC.  Fabian responded by commencing a third-party action against Gurino/Tahoe which sought contractual and/or common law indemnification. 

Gurino/Tahoe moved to dismiss the contractual indemnity claim on the basis that the contract did not provide such a remedy to Fabian.  In addition, Gurino/Tahoe moved to dismiss the common law indemnity claim asserted by Fabian. 

Although the Court dismissed the contractual indemnity claim, it found a question of fact on Fabian’s common law indemnity cause of action.  In so holding, the Court stated that Gurino/Tahoe failed to establish that it did not “actually supervise or control the work giving rise to plaintiff’s alleged injuries.” 

Peiper’s Point- Remember, it is the movant’s responsibility to establish, prima facie, that it did not supervise, direct or control the work which resulted in injury.  It is not enough to point out that defendant cannot establish supervision, direction or control. 

 

05/17/2012          Stallone v Plaza Constr. Corp.
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_03870.htm

Plaintiff sustained injury when he fell from a 14-foot ladder that provided access to a large crane.  It was claimed that plaintiff’s fall may have been precipitated, in part, by inadequate lighting in the area where the plaintiff fell.  Temporary lighting at the site was the contractual obligation of Livingston Electrical Associates.  

As a result of the incident, plaintiff commenced the instant claim against Plaza Construction Corporation, Abington Properties and Livingston Electrical.  Where, as here, there were issues of fact as to Livingston’s negligence, the Court ruled that Plaza’s and Abbington’s, respective, motions for common law indemnification were premature. 

 

05/03/2012                  Fiorentino v Atlas Park, LLC
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_03510.htm

Plaintiff sustained an injury at a construction project while in the course of his employment with Donaldson.  From the limited facts in the opinion, it appears that plaintiff was installing acoustic tiles at the project site.  During this process, he grabbed a live electrical wire and fell from a scaffold as a result.

Plaintiff commenced a lawsuit seeking recovery for his injuries against the owner of the structure, Atlas, and the general contractor, Plaza, and an electrical subcontractor, Sage.  Atlas and Plaza then commenced third-party actions against Donaldson seeking contractual indemnification. 

Atlas and Plaza moved to dismiss Labor Law 200 claims, while at the same time moving for contractual/common law indemnification against Donaldson and Sage.   The Trial Court granted Atlas and Plaza’s motion which dismissed the Labor Law 200 claims, and granted conditional orders of indemnification against Sage and Donaldson. 

Sage and Donaldson immediately appealed.  Atlas and Plaza opposed any appeal of the dismissal of plaintiff’s Labor Law 200 claims on the basis that Sage was not an aggrieved party.  However, where, as here, the dismissal of the Labor Law 200 claim opened the door for the indemnity claims, the Court ruled that Sage had standing to proceed with its opposition. 

Notwithstanding, Sages’ argument to the contrary the First Department affirmed the dismissal of the Labor Law 200 claim.    Because both Atlas and Plaza had been absolved of any negligence, the Court noted that both were entitled to an unconditional award of contractual indemnity against both Sage and Donaldson. 

Interestingly, Donaldson was able to shift its contractual indemnity exposure to Sage via a common law indemnity claim.  In granting an award of common law indemnity in favor of Donaldson, the Court noted that Sage’s own negligence of leaving a life wire in open was the cause of the incident. Accordingly, it granted Donaldson’s motion for common law indemnity. 

 

05/03/12          Cahn v Ward Trucking, Inc.
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_03534.htm

Plaintiff was injured when he was struck by a barrel of cleaning products which had fallen from a hand truck.  Plaintiff commenced the instant action against JT Faulk (as the company that ordered the materials) and Ward Trucking (as the delivery company).  JT Faulk commenced a third-party against Chemtreat (the manufacturer of the materials) under a theory of contractual indemnification.

JT Faulk’s contractual indemnity claim against Chemtreat was dismissed when it was established that the indemnification clause at issue only applied to losses arising from the use of the chemicals.  As the chemicals were not being “used” at the time of the incident, it was clear that the indemnity clause did not attach.

 

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Labor Law Pointers
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