Labor Law Pointers

Volume I, No. 9
Wednesday, July 4, 2012

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

 

From the Editor:

Happy Fourth of July to all of you.  I hope that the vast majority of you are reading this on the 5th or even the 6th and are not working now but rather watching fireworks somewhere. 
The cases this month are interesting and bring to mind a few seemingly basic points which we all seem to overlook from time to time.  First, as the moving party in a Summary Judgment motion it is your burden to prove your case, not simply to disprove the plaintiff’s.  That phrase, “in the light most favorable to the non-moving party” has spoiled many a day when we reach it while anxiously reading a decision on our motions. 
Second, we are reminded that in order to obtain common law indemnification that our client must be free of active negligence and the party from whom we are seeking to obtain indemnification from must have at least some active negligence.
Third, to establish a labor law case the plaintiff must be on the construction site to work, not as a volunteer or to provide security for the site.
Fourth, just because discovery is not completed the party opposing the Summary Judgment motion must demonstrate how further discovery would, or at least could, reveal or lead to relevant evidence or that facts essential to opposing the motion were exclusively within another party's knowledge and control.
Lastly, there is an interesting case below where the un-witnessed nature of an accident appears to have precluded the plaintiff from obtaining Summary Judgment.  This is a difficult argument to make and a careful reading of the Grant case is warranted.
Jennifer Ehman is still at home with her new baby and we wish her entire family well and look forward to her return.  During her absence in will be writing both my own column and hers.  Sorry for the reduction in quality of the 241(6) assessment.

I would be remiss if I did not again thank our new subscribers, hope you enjoy our newsletter.  We are always available to answer any questions you may have regarding any aspect of labor law cases.  We are also available to provide a seminar for any and all who think that they or their team would gain something from a quick refresher or detailed program.  We can tailor our presentation to fit any detail level desired and to fit into any time frame you may wish.  We are always happy to come out and meet those handling labor law cases.
While the steady stream of jokes has ended I was provided with several photographs which remind us all of why we have the jobs we do.  The last one is my favorite.  Enjoy and we will see you all again the first Wednesday of next month. 
And now for the pictures;
   

   

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]

 

06/12/12 Rice v. West 37th Group, LLC
Appellate Division, First Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04676.htm

Plaintiff’s husband, the decedent, fell from 15 feet above the ground when the ladder he was standing on while working collapsed. As a result of the injuries, the decedent was prescribed pain medication by his pain management physician and psychologist. Two years after the accident, the decedent died from acute intoxication due to the combined effects of the medications with a contributing cause of atherosclerotic cardiovascular disease.

Plaintiff brought suit against project owner and manager, decedent’s employer, and others, seeking to recover damages for personal injuries and wrongful death. The trial court denied the defendant’s motion for summary judgment and ruled that a triable issue of fact existed as to whether the decedent’s overdose was an extraordinary and unforeseeable occurrence. Additionally, the trial court also held that a triable issue of fact exists as to whether the decedent suffered a “grave injury.” The First Department affirmed the decisions stating that questions concerning what are foreseeable and normal are generally reserved for the fact finders to resolve.

Practice Point- While this case focuses on the damages and “Grave Injury” issues and not pure Labor Law liability I have decided to include it as it is not only an interesting case but also is illuminative as to the court’s role in those areas.  When making any motion it is first necessary to assess the burden you are under.  Recall that it is not sufficient to say that the opposing party can’t prove their case but, on motion, you must prove yours.  That is the basis of this decision.  The court held that it was up to the trier of fact, the jury, to determine if the plaintiff’s death was as a result of the plaintiff taking a discontinued medication and if the plaintiff’s use of the discontinued medication was “foreseeable” and “normal”.  As the question of the plaintiff’s death was for the jury, it followed that the “Grave Injury” issue also needed to be submitted to the jury for consideration.

06/15/20 Hill v. Seneca Nation of Indians
Appellate Division, Fourth Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04884.htm

Plaintiff sustained injuries while working on a construction project on property owned by defendant Seneca Nation.  At the time of the incident, a trench in which he was working collapsed on him. Plaintiff brought suit to recover damages for his injuries. The issue addressed herein is whether Tribal law or New York law applies because the accident occurred on the Seneca Nation’s sovereign land. The Fourth Department found that the Seneca Nation’s connection to the action was merely tangential, and that New York law should apply. The Appellate Division’s decision resulted I a reversal of the trial court’s decision, and the reinstatement of those causes of action which were dismissed.

Practice Point- The ruling here makes clear that New York State Labor Law applies in a case, such as this, where the plaintiff is a member of the Seneca Nation.  A prior ruling, Karcz v Klewin (http://www.courts.state.ny.us/reporter/3dseries/2011/2011_04960.htm) held that New York labor law applied in a case where the plaintiff was not a member of the nation and this case makes clear that it applies to members of the nation as well.

06/14/12 Muriqi v. Charmer Indus. Inc.
Appellate Division, First Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04828.htm

Plaintiff brought an action pursuant to Labor Law § 240(1). The First Department affirmed the trial court’s ruling that plaintiff made a prima facie showing of his entitlement to judgment by submitting evidence that defendant P and P was a statutory agent of the owner or a general contractor liable under Labor Law § 240(1). The record supported that P and P had plenary authority over the work being done by the plaintiff at the time of the accident.

Additionally, the First Department reversed the trial court’s decision to grant summary judgment to defendant Charmer for indemnification against P and P. Charmer made no showing that P and P was actively negligent or exercised actual supervision over the plaintiff’s work.
 Practice Point- This case is an example of the effect of the McCarthy v Turner (http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05541.htm) decision reported on in past issues.  The point to remember is that to establish common law indemnification the party seeking common law indemnification must itself be free of active negligence and prove, with proof in admissible form, that the party from whom such indemnification is sought was in fact actively negligent or had exercised actual supervision or control over the plaintiff.

06/05/12 Winters v. Main LLC
Appellate Division, First Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04294.htm

Plaintiff lost his footing while working on a scaffold platform, causing a pipe he had been handed to slip out of his hands. When plaintiff reached down to grab the pipe, he felt a sharp pain in his back. Because the plaintiff’s injury was not caused by the scaffold shaking or moving, nor was there any debris on the platform, the trial court granted summary judgment for the defendant, dismissing the complaint. The First Department affirmed, stating that the plaintiff’s injuries were not caused by a violation of Labor Law § 240(1). Simply stated, the plaintiff’s injuries were not caused by a failure to provide adequate protection.

Practice Point- The injury sustained by plaintiff was not sustained as a result of his location, but rather by the action he was undertaking at the time of the injury.  The fact that the plaintiff was on a scaffold at the time of the injury was not a factor in the injury.  The scaffolding did not shift, shake or in any other way move causing the plaintiff to lose his footing.  As, it appears, the same accident could have occurred if the plaintiff were standing on the ground or a permanent structure it was not the failure to provide adequate safety devises which caused the accident and resulting injury.

 

06/21/12 Grant v. Steve Mark, Inc.
Appellate Division, First Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05075.htm

Plaintiff fell to the ground when an A-frame ladder she was using to clean the top shelves of a closet during a construction project tipped over and landed on top of her. The trial court, in an unreported decision, granted Defendant’s motion for summary judgment dismissing the Labor Law § 240(1) claim, and likewise denied Plaintiff’s cross motion for summary judgment on the issue of Defendants’ liability under the same provision. The First Department held that dismissal of the Plaintiff’s section 240(1) claim was improper as the Plaintiff made out a prima facie case showing the ladder was unstable and tipped over. However, the First Department affirmed the trial court’s decision to deny Plaintiff summary judgment on the issue of liability. The Court went on to explain that the manner of the happening is within the exclusive knowledge of the Plaintiff and therefore Defendant’s should have an opportunity to cross-examine to explore her use of the ladder and determine credibility.

Practice Point- This case is very interesting to me and in fact I called and spoke to the attorney who argued it for the defendant.  The plaintiff had been deposed prior to the motion so the cross-examination commented on by the court is trial cross examination.  The rule has seemed to be for the past many years that the fact that an accident was not witnessed does not, in and of itself, create a question of fact as to a violation of the labor law.  Further, the simple fact that an accident was unwitnessed also did not create a question of fact as to sole proximate cause. 

This ruling seems to take a completely different course.  In the instant case, the court is denying the plaintiff motion not based on the timing of the activity undertaken, that of cleaning during or after a construction project.  While cleaning is an enumerated activity for which protection under the labor law is provided, it needs to be cleaning which is not simply ordinary in nature.  You’ll recall that last month we reported the Soto v J. Crew decision (http://www.nycourts.gov/reporter/3dseries/2012/2012_04090.htm) where the plaintiff was also on an A-frame ladder cleaning a shelf.  The same first department held there that the term cleaning is not to be broadly applied and should not afford protection to a plaintiff engaged in regular cleaning activities.  Here however I was informed by counsel that it was argued that the construction project was completed and that the cleaning was not a part of that construction project.  The court did not rule on that basis however and has stated that the basis for denying both Summary Judgment motion is that “The manner of the happening of the accident is within the exclusive knowledge of plaintiff, and the only evidence submitted in support of defendants' liability is plaintiff's account. Defendants should have the opportunity to subject plaintiff's testimony to cross-examination to explore whether she misused the ladder and was the sole proximate cause of the accident and to have her credibility determined by a trier of fact”.

The decision does not indicate that there are differing versions of the happening of the accident (confirmed in my conversation with counsel) which could create a question of fact; it simply states that the defense is entitled to cross-examine her and address her credibility at trial as to the happening of the accident and as to sole proximate cause.  I view this as an extension of the law by the court regarding un-witnessed accidents.

 

06/06/12 Norero v. 99-105 Third Ave. Realty, LLC
Appellate Division, Second Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04325.htm

Plaintiff, a construction worker, brought suit against the property owner, general contractor, and others, seeking damages for injuries he sustained when, while working on the fifth floor of a building, he fell through an unprotected opening in the floor. The trial court denied the Plaintiff’s motion for summary judgment on the issue of liability alleging violation of Labor Law § 240(1). The Second Department reversed the order, and granted the motion ruling that the Plaintiff’s motion was not premature where the owner and contractor failed to demonstrate how discovery would reveal or lead to relevant evidence, or show that facts essential to opposing the motion had been exclusively within another party’s knowledge and control. The Plaintiff established a prima facie case showing that he was not provided with the proper protection in violation of Labor Law § 240(1 and that this violation was the proximate cause of his alleged injuries.

Practice Point- Where the plaintiff falls into an unprotected hole while engaged in construction he will generally be successful in winning a Summary Judgment motion.  The issue here is the timing of the motion.  The Appellate Division held that even where certain discovery remains outstanding the party opposing the motion needs “to demonstrate how discovery may reveal or lead to relevant evidence or that "facts essential to opposing the motion were exclusively within" another party's "knowledge and control"”.  It is not enough to simply tell the court that discovery is not completed and ask that the motion be denied.

 

06/07/12 Bolster v. Eastern Bldg. & Restoration, Inc.
Appellate Division, Third Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04443.htm

Plaintiff, a correction officer, brought suit against a state contractor, seeking damages for injuries he sustained when, while working as a “construction escort,” one of the contractor’s employees dropped a doorframe and struck him. Plaintiff’s duties were to escort the defendant’s workers to and from the construction site in the facility, keeping track of their tools and keeping the area otherwise safe from any inmates.

The trial court granted the Defendant’s motion for summary judgment. The Third Department affirmed by holding that plaintiff officer was not covered by scaffold law and the cited Industrial Code provisions did not apply. The Court explained that Labor Law § 240 generally does not extend to an individual whose role is limited to providing security and who does not participate in any construction activity.  In the same vein, Labor Law § 241(6) does not apply when the accident was not caused by structural instability that could have been noticed and addressed by further inspections.

Practice Point- The first step in analyzing a labor law case should be whether the plaintiff is an individual to who the extraordinary protections are intended to be extended.  This step is generally easy as the injured party is generally a construction worker.  Here the court denied that protection to the plaintiff as the plaintiff’s role in the construction project was security.  This was the ruling even though the circumstances were not those generally encountered by the security personnel on a construction site.  Finally, we note that volunteers are similarly not provided the protection of the statute.

 

06/14/12 Griffin v. Clinton Green South, LLC.
Appellate Division, First Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04841.htm

Plaintiff was injured while dismantling a twelve-foot high scaffold along with two other employees.  Plaintiff was on the floor, on his hands and knees, stacking pieces of the scaffold while his coworkers were dismantling the scaffold.  It was during the course of this process that plaintiff was struck in the back by a piece of scaffold that had fallen.  Plaintiff brought suit, alleging several Labor Law violations including Labor Law § 240(1).  This case was tried before a jury, and at the conclusion of plaintiff’s case in chief, he moved for a directed verdict on his  § 240(1) claim.  The trial court granted plaintiff’s motion. 

At the conclusion of Defendants’ case, the action was submitted to the jury solely on the issue of damages.  Defendants made a post-trial motion, seeking, inter alia, to vacate the trial court’s directed verdict on liability with respect to plaintiff’s § 240(1) claim.  The trial court granted defendants’ motion to vacate the verdict on plaintiff’s § 240(1) cause of action, and directed a new trial on that cause of action.  The trial court found the jury’s award for past pain and suffering was insufficient, and future pain and suffering as excessive, and set those awards aside, ordering a new trial if the parties did not stipulate to an amount for these damages.  It also set aside the award for future economic damages, ordering a new trial as to those damages. 

The First Department affirmed the trial court’s order to grant defendants’ post-trial motion to set aside and vacate its prior order directing a liability verdict.  In affirming the trial court’s decision, the Appellate Division noted that each party is required, pursuant to CPLR § 4401, to await the conclusion of the other’s case before moving for judgment.  Accordingly, the timing of a CPLR § 4401 motion must be strictly enforced.  As such, even if the ultimate success of the opposing party in the action is improbable, a grant of a dismissal prior to the close of the opposing party must be reversed as premature. 

Having determined the plaintiff must retry his § 240(1) cause of action, the first department also found that all damages must also be re-tried.  Reasoning that a money judgment cannot stand in advance of any sustainable verdict as to liability, the trial court properly set aside the jury’s awards for past and future pain and suffering, as well as future economic damages, but erred in failing to set aside the awards for past economic damages. 

Practice Point- The main point of this case is that plaintiff may not make a motion at the close of his own case in chief, but rather must await the close of the defendants.  The defense, however, may make the motion at the close of plaintiff’s proof.  The other main issue here is that a damages verdict, in a case where the liability verdict is not sustainable, must likewise be dismissed.

 

6/27/12 Grygo v. 1116 Kings Highway Realty, LLC
Appellate Division, Second Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05139.htm

Plaintiff, a painter, was injured when a cart holding sheetrock toppled and fell over, causing the cart and sheetrock to strike him in the right leg.  The incident occurred at a worksite which was a large open space.  The plaintiff was standing next to the cart at the time of the accident, removing plastic sheeting he had previously placed over the cart to protect it while he painted the worksite.  The plaintiff brought suit, alleging, inter alia, violations of Labor Law § 240(1).  The defendants moved for summary judgment dismissing the complaint and the trial court granted their motion. 

The Second Department affirmed, holding the defendants established a prima facie entitlement to summary judgment by submitting evidence that demonstrated that the injuries were a result of a general hazard encountered at the construction site, and were not a direct consequence of failing to provide an adequate device as enumerated in § 240(1).  These devices are “intended to protect ‘against a risk arising from a physically significant elevation differential.’” 

Practice Point- Runner is being cited every month and there is no exception here.  The court held that the injury was caused by a general hazard, sheet rock on a cart, which is encountered on construction sites and by a failure to provide a safety device to protect against the risk of a physically significant elevation differential.  In other words, if it is the type of hazard which faces construction workers every day, and there is not a safety device which would protect the plaintiff from the injury, no labor law.

  
6/27/12 Ventimiglia v. Thatch, Ripley & Co., LLC
Appellate Division, Second Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05163.htm

Plaintiff, an employee of a construction corporation, was injured when he fell while working on a project to construct a new condominium building.  On the date of the accident, the plaintiff claims a trench approximately ten feet wide and eight feet deep surrounded the work site.  As plaintiff remembers it, there were three or four planks, about ten feet long, placed across the trench at a slight decline.  These planks served as his only point of ingress/egress to the work site. 

Plaintiff claimed he was instructed by his foreman to bring some lumber onto the site.  While walking across the planks, and carrying lumber on his shoulders, the planks opened up and he fell into the trench.  Plaintiff brought suit alleging, among other causes of action, violations of Labor Law § 240(1).  The trial court granted defendants’ motion for summary judgment dismissing, among other claims, plaintiff’s § 240(1) cause of action. 

The Second Department modified the order, holding the trial court should have denied defendants’ motion for summary judgment dismissing plaintiff’s § 240(1) cause of action.  The court found that plaintiff was allegedly injured while engaged in a task that entailed an elevation-related risk.  Further, the court found that the planks from which plaintiff fell were being used in the performance of his work and, under the circumstances, were the functional equivalent of a scaffold meant to prevent the plaintiff from falling into the trench.  Liability under § 240(1) depends on whether the injured worker’s job creates an elevation related risk of the kind that the listed safety devices in § 240(1) protect against, and § 240(1) is triggered when an accident is one that will sustain the claim “that an adequate ‘scaffold, hoist, stay, ladder or other protective device’ would have ‘shield[ed] the injured worker from harm directly flowing from the application of the force of gravity to an object or a person.’” 

Importantly, the Appellate Division specifically noted that the decisive question if § 240(1) is applicable is “‘whether plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.’”  However, the plaintiff was not entitled to summary judgment on the issue of liability for his § 240(1) claim because defendants raised a triable issue of fact as to whether the trench described actually existed, and whether the accident occurred in the manner alleged by plaintiff. 

Practice Point- The key issue here was the existence of the trench.  The court found a question of fact as to the very existence of the trench into which the plaintiff allegedly fell.  There appears to have been some evidence that the plaintiff’s version of the accident was not supported by all witnesses and thus there was a question of fact as to the existence of the trench.  If the trench did not exist, or was materially different from that described by the plaintiff, the manner in which the accident occurred must also be a question of fact for the jury.

 

6/26/12 DeRosa v. Bovis Lend Lease LMB, Inc.
Appellate Division, First Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05115.htm

            Plaintiff, the driver of a cement-mixing truck, was directed by the property owner’s contractors and construction manager to position his cement truck side-by-side with another cement truck.  The intended result was to allow the two trucks to simultaneously pour their cement into a hopper.  There was only a foot or less of leeway on either side of plaintiff’s truck for him to operate.  This spacing is significant because plaintiff needed at least two feet on the truck’s rear to unfold a two-foot extension attached to a metal ladder that was affixed to the truck.  The ladder would allow plaintiff to climb up to the top of the truck in order to evaluate the consistency of the cement in the truck’s mixing barrel before pouring the cement mix.  After plaintiff parked, he went to the rear of his truck and activated the switches that put the truck’s mixers at full speed.  He then mounted the right side of the truck’s rear fender, approximately three feet off the ground, and knelt down to reach around the truck to activate a water-mixing valve.  As he began to stand and lift his leg in an effort to ascend the truck’s unextended ladder, the back of his shirt was caught in the mixer’s rotating hatch handle and he was propelled upward and over to the other side of the truck.  Plaintiff brought a Labor Law § 240(1) cause of action against the defendants.  The trial court granted plaintiff’s motion for partial summary judgment on the issue of liability and denied defendants’ cross motion for summary judgment dismissing the § 240(1) claim.
            The First Department reversed the trial court’s decision, holding that dismissal of plaintiff’s § 240(1) claim was warranted.  The court reasoned that, although §  240(1) is to be liberally construed, it should be construed with a commonsense approach to the realities of the workplace at issue, and the protections of the statute are not implicated simply because the injury is caused by the effects of gravity upon an object.  Rather, “the question is ‘whether the harm flows directly from the application of the force of gravity to the object.’”  Put simply, the decisive question is whether the plaintiff was exposed to an elevation-related risk and did his injuries directly result from the application of gravity’s force.   The facts of this case show that the plaintiff was not exposed to an elevation-related risk, and his injury did not directly flow from the application of gravity’s force.  Instead, the court found that plaintiff’s injuries were a result of activities and circumstances that arise on a construction site but are not covered by § 240(1)’s elevation-differential protections.  Plaintiff did not establish that the circumstances warranted the type of safety equipment listed in § 240(1).  The court held that the protections of §  240(1) do not apply to every worker who falls and is injured at a construction site. 

Practice Point- They say that strange facts make for strange law and this is no exception.  The court, in a 4-1 decision held that plaintiff was not injured due to a fall or due to the application of gravity.  This decision was reached, oh by the way, after plaintiff was injured because he was hurled into the air by spinning cement mixer.  By extension it was not the height the plaintiff was working at when he was thrown up and into the air, but the physical action of being tossed into the air and then coming down again which caused the injury.  The same result would have occurred had he been at ground level when he became entangled with the rotating drum.

 

6/28/12 Kosovrasti v. Epic (217) LLC
Appellate Division, First Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05263.htm

The First Department affirmed the trial court’s decision to deny defendant’s motion for summary judgment to dismiss plaintiff’s Labor Law § 240(1) claim against them.  The court found that this defendant made a prima facie showing that it could not be held liable as a general contractor under § 240(1) by demonstrating that it had no authority to supervise, direct, or control the workers or activities at the work site.  However, when viewed in the light most favorable to the nonmoving party, the court held that a triable issue of fact exists where work permits that list defendant as the general contractor are coupled with testimony of the vice president of a co-defendant that states that before the work began, she and the defendant agreed that defendant would be responsible for obtaining the necessary permits and that defendant was to oversee the coordination of the involved trades on the project.  The court stated that the work permits issued after the accident, alone, are insufficient to establish general contractor status.  However, when coupled with the vice president of another co-defendant’s testimony, a triable issue of fact exists.  

Practice Point- Once again the burden on the moving party precluded them from obtaining Summary Judgment.  Here, while the work permit listing the defendant as the General Contractor was not sufficient to establish the defendant as the GC, there agreement between the owner and the defendant required the defendant to “oversee the coordination” of the “involved trades’ and was not sufficiently clear to establish that the defendant was not to oversee all trades or only their own work and thus, given their burden on Summary Judgment, a question of fact existed.
  

 

Labor Law Section 241(6)

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

 

06/07/12 Once v Service Center
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_04414.htm

Plaintiff was operating a power saw which had no guard attached and amputated the distal portion of his ring finger.  At trial, on a theory of liability under Labor Law §241(6), the jury found the plaintiff to be 70% liable and awarded $50K for past and $10K for future pain and suffering.  The trial court ordered a new trial unless the parties would stipulate to 15% liability on the plaintiff and $75K past and $150K future pain and suffering. 

On appeal, the First Department held that as the defendant provided the plaintiff with a saw which did not have a guard as required under Industrial Code §23-1.12(c), there were no other adequate safety devices available, and there was no evidence the plaintiff misused the saw which he was directed to use that no liability could be attributed to the plaintiff.  Accordingly, the Court upheld the amount of damages as proposed by the trial court.  The Appellate Division also modified who needed to stipulate to the change in liability and damages.  Here the plaintiff was the moving party, and as such only the defendant was required to stipulate to the order of the Court to avoid a new trial as they were the non-moving party.

 Practice Point- I know I am constantly recommending the retention of a good expert, and will do so here again.  Had the defendant procured an expert who testified that the plaintiff misused the saw even though it had no guard on it, then seemingly the original verdict would need to have been upheld as the court’s rationale includes the fact that the record was silent as to any misuse of the saw by plaintiff.  Just a thought.

 

06/21/12 Guodace v AP Wagner
Appealate Division, Third Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05052.htm

Plaintiff was injured while working for an electrical contractor.  At the time of the incident, plaintiff was standing on a platform attached to the elevated forks of a lift truck doing electrical work on a ceiling beam.  As plaintiff was working the lift truck forks, the platform spontaneously and unexpectedly rose up crushing plaintiff’s hand between the safety bar on the platform and the ceiling beam.  Notably, defendant had had some issues with the lift truck, and had repairs done several times in the months prior to the accident. 

Plaintiff claimed violation of 12 NYCRR 23-9.2(a) and 23-9.8(c).  Section 9.2(a) requires that any unsafe condition in power operated equipment be corrected.  Defendant provided proof that they had called service technicians to repair problems with the lift and that they had no notice of any additional or continuing problems.  As to the Section 9.8(c) claim, all lift trucks must be capable of being locked at any elevation.  The plaintiff’s expert conceded that the lift truck could be locked at any elevation but that the methods could have been “more user friendly”.  As the capability existed for the lift truck to be locked at any elevation, this section was also dismissed.

Practice Point- Always a good idea to, when the verified bill of particulars is first received, obtain copies of the sections claimed violated as the basis of the 241(6) claim.  When you get the actual language of the Code, then be ready with those long before depositions are held.  They are the basis of the defense of a 241(6) case.

 

06/05/12 Winters v. Main LLC
Appellate Division, First Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04294.htm

Plaintiff lost his footing while working on a scaffold platform, causing a pipe he had been handed to slip out of his hands. When plaintiff reached down to grab the pipe, he felt a sharp pain in his back. Because the plaintiff losing his footing was not caused by the scaffold shaking or moving, nor was there any debris on the platform, the trial court granted summary judgment for the defendant, dismissing the complaint.

The First Department affirmed, stating that the plaintiff’s injuries were not caused by a violation of Labor Law §241(6). The plaintiff’s injuries were not caused by a failure to comply with any of the Industrial Code sections cited as the scaffold never moved and the plaintiff never fell and all sections had to do with the scaffold.  In other words, as there was no problem with the scaffold itself, and it did not in any way cause or contribute to the plaintiff’s injury, none of the sections relating to the scaffold were pertinent to the accident and resulting injury.

Practice Point- Again, carefully read the sections and check to see what type of threat they are intended to prevent.

  
06/06/12 Norero v. 99-105 Third Ave. Realty, LLC
Appellate Division, Second Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04325.htm

Plaintiff, a construction worker, brought suit against the property owner, general contractor, and others, seeking damages for injuries he sustained when, while working on the fifth floor of a building, he fell into an unprotected opening in the floor. The trial court denied the Plaintiff’s motion for summary judgment on the issue of liability alleging violation of Labor Law §241(6). The Second Department reversed the order and granted the motion ruling that the Plaintiff’s motion was not premature where the owner and contractor failed to demonstrate how discovery would reveal or lead to relevant evidence, or show that facts essential to opposing the motion had been exclusively within another party’s knowledge and control. The Plaintiff established a prima facie case showing that he was not provided with the proper protection in violation of Labor Law § 241(6), and the Industrial Code and that these violations were the proximate cause of his alleged injuries.

Practice Point- As noted above in the 240(1) section to defeat a Summary Judgment motion based on a lack of discovery the opposing party needs “to demonstrate how discovery may reveal or lead to relevant evidence or that "facts essential to opposing the motion were exclusively within" another party's "knowledge and control"”.  It is not enough to simply tell the court that discovery is not completed and ask that the motion be denied
  

06/07/12 Bolster v. Eastern Bldg. & Restoration, Inc.
Appellate Division, Third Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04443.htm

Plaintiff brought suit for a violation of 241(6) and the trial court granted the Defendant’s motion for summary judgment. The Third Department affirmed therein explaining that Labor Law § 241 generally does not extend to an individual whose role is limited to providing security (see above as a 240(1) case), and who does not participate in any construction activity. Likewise, Labor Law § 241(6) does not apply when the accident was not caused by structural instability that could have been noticed and addressed by further inspections as the claimed section was 12 NYCRR 23-3.3(h).  Here, the plan was to remove the doorframe from the wall, lower it to waist height and then drop it.  As the doorframe was not being lowered from one floor to a different floor below 12 NYCRR23-3.3(h) was violated.

Practice PointAlways check first to see if the section being claimed is a specific section as opposed to a general section such that a violation is sufficient to constitute a violation of 241(6).

  
6/27/12 Grygo v. 1116 Kings Highway Realty, LLC
Appellate Division, Second Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05139.htm

Plaintiff, a painter, was injured when a cart holding sheetrock toppled and fell over, causing the cart and sheetrock to strike him in the right leg.  The incident occurred at a worksite which was a large open space.  The plaintiff was standing next to the cart at the time of the accident, removing plastic sheeting he had previously placed over the cart to protect it while he painted the worksite.  The plaintiff brought suit, alleging, inter alia, violations of Labor Law § 241(6).  The defendants moved for summary judgment dismissing the complaint and the trial court granted their motion. 

The Second Department affirmed.  The defendant argued that 12 NYCRR 23-2.1(a)(1) which requires owners and general contractors to store "[a]ll building materials . . . in a safe and orderly manner" so as "not [to] obstruct any passageway, walkway, stairway or other thoroughfare" was not applicable as the accident occurred in an open area and not in a passageway, walkway, stairway or other thoroughfare.

Practice Point- I know you are getting tired of hearing it but research the regulations as early in the case as you can.  Nothing is worse than putting all your energy into defeating the 240(1) claim, and finding that you did not do enough to have the 241(6) dismissed. 

  
6/27/12 Ventimiglia v. Thatch, Ripley & Co., LLC
Appellate Division, Second Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05163.htm

Plaintiff, an employee of a construction corporation, was injured when he fell while working on a project to construct a new condominium building.  On the date of the accident, the plaintiff claims a trench approximately ten feet wide and eight feet deep surrounded the work site.  As plaintiff remembers it, there were three or four planks, about ten feet long, placed across the trench at a slight decline, and served as the only way into and out of the work site.  He claimed he was instructed by his foreman to bring some lumber onto the site.  While walking across the planks, and carrying lumber on his shoulders, the planks opened up and he fell into the trench.  Plaintiff brought suit alleging, among other causes of action, violations of Labor Law § 241(6).  The trial court denied defendants’ motion for summary judgment dismissing plaintiff’s § 241(6) cause of action. 

The Second Department affirmed the order as to 241(6) holding that 12NYCRR 23-1.7(b)(1) regarding hazardous openings was not neither factually inapplicable, nor satisfied.  The trial court also properly allowed plaintiff to amend his pleadings to add 12 NYCRR23-4.2(h)(i).  The court held that "[L]eave to amend the pleadings to identify a specific, applicable Industrial Code provision may properly be granted, even after the note of issue has been filed, where the plaintiff makes a showing of merit, and the amendment involves no new factual allegations, raises no new theories of liability, and causes no prejudice to the defendant'" 

Practice Point- Do not assume that just because plaintiff has not pled an appropriate section of the regulations that the day is yours.  Always be prepared for the motion to amend the verified bill of particulars to add an additional section or two.

 

6/28/12 Kosovrasti v. Epic (217) LLC
Appellate Division, First Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05263.htm

The First Department affirmed the trial court’s decision to deny defendant’s motion for summary judgment to dismiss plaintiff’s Labor Law § 241(6) claim against them.  Defendant successfully argued that 12 NYCRR 23-5.1 "General Provisions for All Scaffolds" was exactly what the title indicates it is, a general provision and thus not sufficiently specific to be the basis of a 241(6) claim.  Plaintiff additionally attempted to add additional sections during the appeals process and that was deemed improper.  The leave freely given during the case as described in Ventimiglia above ends after the motion is decided.

Practice Point- While leave to amend pleadings is freely given it cannot be determined to be retroactive so do not wait until the appeal to find that section of the regulations that would actually apply.

  
6/12/12            Scott v Westmore Fuel
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_04698.htm

Plaintiff was riding on the exterior step of a backhoe when he fell from the backhoe and was run over by the wheels of the machine.  The court held that plaintiff was engaged in a protected activity even if he was riding on the backhoe to the storage area from the work site or from the storage area to the work site at the time of the accident as opposed to actually being engaged in work on the site.  Some 6 sections of the regulations were dismissed as not applicable to the fact of the case however 12 NYCRR 23-9.5(c) was in view of plaintiff's testimony that he was not licensed or trained to operate a backhoe, and his foreman's testimony that plaintiff's responsibilities entailed primarily excavation work. Such evidence indicates that plaintiff was not part of the "operating crew" and thus, was not authorized to be on the backhoe while it was in motion or operation.  Thus the section was violated and plaintiff’s claim under that section was valid.
Plaintiff also attempted to claim a violation of 12 NYCRR 23-9.2(B)(1) which was not alleged in his pleadings.  He claimed that the section was raised in his expert affidavit.  The court however rejected the affidavit as the plaintiff’s expert affidavit was lacking a certificate of conformity and plaintiff did not disclose his expert until the filing of his affidavit in opposition after the Note of issue was filed.  The court also denied plaintiff’s request to amend his verified bill of particulars to add that section as it was after the Note of issue, untimely and prejudicial.

Practice Point- This is a slightly different ruling from the first from the second as the Ventimiglia case above where leave to amend pleadings is freely given absent prejudice.  The court in the instant case does not note what type of prejudice is being claimed here but the court also mention untimeliness which was specifically excluded by the second.

 

6/20/12            Steinsvaag v City of New York
Appelate Division, Second Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04992.htm

Plaintiff was struck in the shoulder by a door buck being carried by two of his co-workers over a wet ramp.  Plaintiff claimed that the door buck struck his as a result of one of the workers losing his grip after slipping on the ramp.  Plaintiff claimed a violation of 12 NYCRR 23-1.7(d).  The court held that plaintiff’s claim as to the cause of the accident was mere speculation.  The court ruled that “defendants met their burden of establishing their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff could not establish that his coworker lost his grip on the door buck because he slipped on a wet ramp without relying on speculative or inadmissible hearsay evidence”.

Practice Point- Causation is often a difficult argument to win in a Summary Judgment motion as the general rule is that the moving party must disprove the claim as opposed to simply stating that plaintiff can’t prove his theory.  In some cases however, where the plaintiff’s theory is purely speculative, it is sufficient.

 

Labor Law Section 200 and Common Law Negligence

by: V. Christopher Potenza
(716) 849-8933
[email protected]
All right, it’s the 4th of July and the sun is out, the grill is hot and the pool is luke.  If I can interest you in a little Labor Law 200 analysis, then read on.  
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. 

 

6/5/2012 Winters v Main LLC.
Appellate Division, First Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04294.htm

Plaintiff testified that he lost his footing on a scaffold platform, causing a pipe he had been handed to slip downward in his hands, and that when he reached forward to grab the pipe, he felt a sharp pain in his back. He testified further that he did not know why he lost his footing; the scaffold did not shake or move, and there was no debris on the platform.  The court found this was a routine workplace risk and plaintiff did not have valid Labor Law § 200 and common-law negligence claims because his injuries were not caused by any unsafe condition of the work site.

 

6/20/2012 Steinsvaag v City of New York
Appellate Division, Second Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04992.htm

The plaintiff, an apprentice carpenter, was assisting a co-worker in carrying door bucks off a truck and into a construction site. While walking along a ramp that was wet from precipitation, the door buck that the plaintiff and his co-worker were carrying struck the plaintiff in his right shoulder. The plaintiff alleged that his co-worker lost his grip on the door buck after slipping on the ramp.  The court determined that plaintiff could not support a common-law negligence/ Labor Law § 200 violation because he could not establish that his co-worker lost his grip on the door buck because he slipped on a wet ramp without relying on speculative or inadmissible hearsay evidence

 

6/21/2012      Guodace v AP Wagner, Inc..
Appellate Division, Third Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05052.htm

Plaintiff, an employee of an electrical contractor, was injured while using defendant's forklift truck to work on a telephone wire at defendant's warehouse. In order to reach the wire as it ran along a ceiling beam, plaintiff raised the platform on the forklift.  The platform then spontaneously and unexpectedly rose up, crushing plaintiff’s hand between the safety bars and the ceiling beam. Plaintiff’s common-law negligence/ Labor Law § 200 claims were dismissed as plaintiff failed to raise an issue of fact as to whether the defendant had notice of this problem with the forklift. 

 

6/27/12 Ventimiglia v. Thatch, Ripley & Co., LLC,
Appellate Division, Second Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05163.htm

The plaintiff, an employee of a third-party defendant subcontractor, was allegedly injured when he fell while he was working on a project to construct a new condominium building. According to the plaintiff, a trench approximately 10 feet wide and 8 feet deep surrounded the work site and three or four 10 foot planks were placed across the trench at a “slight decline,” and served as the only way into and out of the site. The plaintiff alleged that he was instructed by his foreman to bring some lumber onto the site. As he was walking across the planks, carrying lumber on his shoulders, the planks “opened up,”  causing him to fall into the trench. The Second Department reversed the trial court and denied summary judgment to the owner on common-law negligence/ Labor Law § 200 claims, finding that the plaintiff raised a triable issue of fact as to whether the owner had constructive notice of a dangerous premises condition by adducing evidence that the trench and planks from which plaintiff allegedly fell had existed for approximately six months prior to the occurrence of the accident.

 

6/28/2012 Kosovrasti v Epic (217) LLC
Appellate Division, First Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05263.htm

The contract entered into by defendant Compound and defendant Tribbles shows that Compound was responsible only for certain enumerated work, and specifically states that Compound is “not liable for owner's contractors or suppliers,” and excludes from the scope of Compound's services, inter alia, work by other trades and the filing of permits. Tribbles' vice president testified however that, before the work began, she and Compound agreed that Compound would be responsible for obtaining the necessary permits and that Compound was to “oversee the coordination” of the “involved trades” on the project. Summary judgment to Compound dismissing the Labor Law § 200 and common-law negligence claims was denied as viewing the evidence in the light most favorable to the non-movants, triable issues of fact exist as to whether Compound exercised general control over the work site and had constructive notice of the alleged uneven floor condition that caused plaintiff's fall.
Luckily the Labor Law 200 decisions are scarce this month, enjoy your holiday!

Indemnity Issues in Labor Law

by: Steven E. Peiper
(716) 849-8995
[email protected]
Ok, confessions first.  Who here hasn’t done something substantially similar to any one of the photos that were attached to the beginning of this issue?
I must admit, when I first looked at them, my only thought was “where are the Christmas lights.”  My second thought was “sure, anyone can prop a ladder against the electric meter, but can you do it in a snow storm with winds gusting to 40+ mph, in the dark, with no gloves on?”  If so, you, my friend, are welcome anytime in the City of Good Neighbors. 
If you can honestly say that you’ve never “propped” a ladder precariously against the side of your house to reach just a few feet higher so that all corners are aglow in imported Italian twinkle lights, well, then, you’re a better man (or woman) than I.  Right job with the right tool, my foot.  
If only there were a codified law that would enable me to hold someone else responsible for my own poorly planned ingenuity (read, supidity)…oh wait!  Well, if I only I could sue myself for my own “poorly planed ingenuity”, and somehow make it a Labor Law 240(1) claim. 
I am open to suggestions. 
Unfortunately, perhaps given the number of defense decisions covered above, there is very little to write about this month on the indemnity side of things.  Hence, my feeble attempt at humor.  With little to write about, and even less by way of humor, I offer you all the following thoughts and bid you all adieu until next month.   Cheers!

 

 6/27/12 Ventimiglia v. Thatch, Ripley & Co., LLC,
Appellate Division, Second Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05163.htm

Remember this one from above?  Plaintiff was injured when he fell through a set of planks.  You will recall that defendant’s summary judgment motions as to Common Law Negligence/Labor Law 200 were denied upon a question of fact relative to whether the defendant has notice of the allegedly defective condition.  Where there remains a question as the defendant’s own negligence, it follows that any motion for contractual indemnity is likewise premature.  Recall, that under General Obligations Law 5-322.1 a contractor may not be indemnified for its own negligence.  Where, as here, that negligence is still at issue, it follows that relief under an indemnity claim cannot be afforded.

 

06/28/12          All American Moving and Storage, Inc. v W. Reilly Andrews
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_05241.htm

Defendant Nikko and SDM moved to dismiss the instant action on the basis of a mandatory mediation/arbitration clause found within their contracts.  In denying the motion, however, the First Department noted that a Motion to Dismiss, under CPLR 3211, was not the appropriate vehicle for attempting to enforce a mandatory mediation/arbitration clause.  In any event, even if such clause were subject to a Motion to Dismiss, in the instant matter plaintiff was not a party to the contracts of either Nikko, or SDM.  Where, as here, there was no privity between the plaintiff and the moving parties, it followed that the clause at issue had no impact on the viability of plaintiff’s action. 

Peiper’s Point Although not a Labor Law case, per se, it certainly could be useful to the practitioner that gets hit with a similar motion within a the framework of a bodily injury complaint.

 

06/13/12          C & M 345 North Main Street, LLC v Nikko Construction Corp.
Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_04708.htm

The owner of a warehouse commenced the instant action after its building was severely damaged by fire.  Plaintiff named, among others, the tenant D’Agostino and the sprinkler company, Allstate, as direct defendants.  Allstate eventually moved for summary judgment on the basis of the age old argument that it was simply a service contractor, and thus did not owe any duty to plaintiff.  In the alternative, Allstate sought contractual indemnification from D’Agostino pursuant to its sprinkler service contract. 
In denying Allstate’s motion, the Court noted that plaintiff was a third-party beneficiary of the sprinkler service agreement entered into between D’Agostino and Allstate.  Simply stated, the agreement, which presumably protected plaintiff’s structure, was directly for the benefit of plaintiff.  In addition, the Court also noted that a question of fact existed as to whether plaintiff detrimentally relied upon Allstate to provide monitor services as the facility per the terms of the aforementioned agreement.  In noting a question of fact existed, the Court noted in particular the fact that Allstate had failed to inspect the sprinkler system for several months prior to the incident, and had failed to notify authorities on previous occasions when it discovered the system was non-operational. 
Given the questions of fact as to Allstate’s direct negligence, the Court likewise concluded that Allstate’s claims for contractual indemnity over and against D’Agostino were likewise premature.  Under the terms of the contract, Allstate was not entitled to receive a windfall for losses occasioned out of its own negligence.  

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

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