Labor Law Pointers - Volume II, No. 10

Labor Law Pointers

Volume II, No. 10
Wednesday, August 7, 2013

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

From the Editor:   

Another month is in the books and summer is here in full force.  The courts are, as is typical, a bit slower this time of year and we have only 9 labor law cases state wide for this edition. 

For those of you who read Coverage Pointers, and I encourage all of you to do so, you know that Steve Peiper has thrown down the gauntlet looking for my opinion on the Flossos v Waterside Redevelopment Co., L.P. case.  It involves a plaintiff standing on a ladder who is struck when the ceiling falls on him knocking him from the ladder.  I agree with Steve’s analysis that this is not a falling object case as the ceiling was not a part of the task being undertaken by the plaintiff and was not an object being hoisted or secured.  The issue brought up by Steve is whether this should be a falling worker case.  The court found that it was neither a falling worker nor a falling object case.  My opinion, for what it is worth, is that the court granted the defense motion on the falling worker portion of the claim based on the fact that it was not the ladder itself which was the cause of the fall and that had the ceiling not fallen on the plaintiff that he would not have been injured.  Thus it was not the ladder, the safety device he was using at the time, which caused the injury but rather the falling object.  That said I am not sure the same result would follow from the fourth.  If you do not receive Coverage Pointers just send us an email and you will be added to the distribution list.

We have had a substantial amount of interest in our webinar and thus we have set a date for a New York State Labor Law webinar.  Steve Peiper and I will be hosting a 60 to 90 minute webinar on September 12, 2013 at 10:00.  Information on how to sign in will be provided in the next edition or emailed to anyone interested.  We have had lots of positive feedback from our prior webinars and decided to open this one up to everyone, hope you will join us.  I continue to believe that doing the presentation in person is a better option but given the fact that there are many people in separate locations around the country the webinar seems to work quite well.  If you have a group of people in a single location just let us know and we will happily come there and do an in person presentation for your group.

I am glad to have this out a little earlier than usual tonight as I have the pleasure of being a marshal tomorrow for the PGA championship in Rochester.  I need to be there early so a little more sleep will be welcome.  I will be a marshal on the 18th hole watching players who hit the ball every time they take a swing, a much better outcome than I have when I get a chance to play.  I am looking forward to it.  I also plan on bringing home the “Quiet” sign to see if it works on my kids.  Hope, as they say, springs eternal.  Unfortunately they have given me a hat I must wear so the Labor Law Pointers hat will not be making its television debut. 

As always, we hope you enjoy this edition and please feel free to call, email or text any questions you may have.  Please feel free to forward this on to anyone who may be interested and if you are reading this and are not a subscriber just control/clink on my name below and it will create an email to me, just drop me a line and you will be added to the distribution list, no charge, ever. 

Thanks and have a great month.
David

David R. Adams
Hurwitz & Fine, P.C.

424 Main Street
Suite 1300 Liberty Building
Buffalo, New York 14202
Phone:  716.849.8900
Direct:  716.849.8916
Fax:  716.855.0874
Cell:  716.553.6901
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) 849-8916.

Purcell v Metlife Inc.
July 2, 2013
Appellate Division, First Department

Plaintiff slipped on wet plywood while carrying a heavy steel beam and allegedly sustained injuries.  As a result, he brought suit alleging violations of Labor Law §§ 200 and 241(6).  The trial court granted defendant JRM Construction Management (JRM) motion to dismiss the § 200 claim against it and moved to dismiss, along with Metlife, the § 241(6) claim predicated upon 12 NYCRR §§ 23-1.7(e), 23-1.11 and 23-1.22(b)(2).  The trial court granted further granted third-party plaintiffs’ motion for conditional summary judgment on their contractual indemnification claim and denied third-party defendant’s cross-motion to dismiss that claim.

Labor Law § 200 and Common-Law Negligence (VCP)

The Appellate Court affirmed dismissal of plaintiff’s § 200 claim against the general contractor, JRM, because there was no evidence that JRM supervised the means or methods of plaintiff’s work.  Further, the Appellate court held that there was no evidence JRM created or had actual or constructive notice of the allegedly dangerous condition that caused plaintiff’s injury. 
Labor Law § 241(6) (JAE)
In affirming the motion court’s dismissal of plaintiff’s Labor Law § 241(6) claims, the court held that Industrial Code (12 NYCRR) § 23–1.7(e)(1) was inapplicable, since plaintiff testified that he slipped on wet plywood while carrying a heavy steel beam, and there was no evidence that plaintiff tripped.  Moreover, plaintiff’s accident did not take place in a “passageway” within the meaning of that provision; rather, it occurred in an open-work area on the eighth-floor roof setback of the work site.  Likewise, section 23–1.7(e)(2) was inapplicable because the wet plywood was not “debris” or any of the other obstructions listed in that provision, and plaintiff did not claim to have slipped or tripped on any scattered tools or other materials. 

Section 23–1.11 was inapplicable, since plaintiff did not claim that his accident was caused by defects in the lumber and nail fastenings used in the construction of the plywood.  Lastly, section 23–1.22(b)(2) was also inapplicable, since the plywood was neither a runway nor a ramp

Take Away:  Section 23-1.11. Lumber and nail fastenings, is not frequently cited as the basis for a § 241(6) claim.  For those not familiar with the section, it requires that the lumbar used in the construction of equipment or temporary structures (not the actual building materials) be sound and free of defects such as ring shakes, large or loose knots or other defects which may impair the strength of such lumber.  It also sets for the dimension of the lumbar to be used, and requires that all nails shall be driven in and be of the proper size, type, length and number to provide the required strength at all joints.  Here, plaintiff slipped on wet plywood.  Its accident was unrelated to the strength or dimensions of the plywood, and there was no allegation that he tripped or got caught on a nail. 

Section 23-1.22(b)(2) is another regulation not often relied on as a basis for a 241(6) cause of action.  This section requires runways and ramps be at least 18 inches in width and constructed of planking at least two inches thick full size or metal of equivalent strength. It also requires that they be supported and braced to prevent excessive spring or deflection. Where planking is used it shall be laid close, butt jointed and securely nailed.  Again, as with 23-1.11, the plywood was allegedly wet.  There was no allegation that the accident was due to its excessive spring or deflection. 

Indemnity Issues in Labor Law (SEP)
The Appellate Court affirmed the trial court decision granting third-party plaintiffs conditional summary judgment on their contractual indemnification claim, holding that the indemnity provision does not violated General Obligations Law § 5-322.1 as it does not require third-party defendant to indemnify third-party plaintiffs for their own negligence. 

 

Beltran v Navillus Tile, Inc.
July 2, 2013
Appellate Division, First Department

Plaintiff allegedly slipped on a puddle of water on the floor in a corridor in which defendants were performing renovation, by suspending a leaking hose above the floor.  Plaintiff and two witnesses testified that the hose was slowly dripping water onto the floor near where plaintiff fell, and that the floor of the wide corridor was covered in water about half an inch deep. 

Plaintiff filed suit alleging violations of Labor Law § 200 and common-law negligence.  Defendants moved to dismiss plaintiff’s claims.  Defendant Liro also moved for summary judgment on its contractual indemnification claim against Navillus.  The trial court denied defendants’ motion to dismiss, and denied Liro’s motion for summary judgment.

Labor Law § 200 and Common-Law Negligence (VCP)

The First Department ruled that the lower court properly denied all defendants' motions for summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims against them.

There are issues of fact as to whether Navillus created a puddle of water on the floor, on which plaintiff allegedly slipped and fell, in a corridor in which defendants were performing renovation, by suspending a leaking hose above the floor. Further, there are also issues of fact about whether Navillus, URS, or Liro had constructive notice of the wet condition, since the testimony of plaintiff and two other witnesses indicated that the hose was slowly dripping water onto the floor near where plaintiff fell, and that the floor of the wide corridor was covered in water about half an inch deep.

The court also found issues of fact as to whether Unisys Electric Inc., as the electrical contractor responsible for providing temporary lighting in the building, had constructive notice of the inadequate temporary lights in the corridor at the time of the accident.

Indemnity Issues in Labor Law (SEP)
At the time of the motions on Labor Law § 200/common-law negligence, Liro also moved for an award of contractual indemnification against Navillus.  That motion was also denied due to the question of fact over who, if anyone, was responsible for the incident giving rise to plaintiff’s injuries.  In particular, the Court noted that the indemnity provision at issue only triggered upon a showing that the incident arose “‘out of or occurring in connection with’ Navillus’s performance of the work.  Here, where it could not be determined if Navillus bore any responsibility for the incident, the contractual indemnity claim was clearly premature.

 

Mayo v Metropolitan Opera Ass’n, Inc.
July 2, 2013
Appellate Division, Fourth Department

The Metropolitan Opera Association (the Met) contracted to have the steel carriage rail for its automated window-washing system, which goes around the roof of the Opera House, stripped and repainted.  The contract identified the “Contractor” as “Strauss Painting, Inc./Creative Finishes, Ltd.,” but the only signature under “Contractor” was that of Strauss's vice president.  Strauss subcontracted with Creative to perform the work.  To access the roof and the steel carriage rail, Creative's employees, including plaintiff, had to climb a ladder located on the sixth floor of the Opera House and exit onto the roof through a hatch door in the ceiling. 

Plaintiff and his witnesses testified that the hatch door was easy to open, but difficult to close, in part because of a broken hinge, and that two hands were required to close it.  Lincoln Center's chief engineer, who had used the hatch at least 100 times, testified that to close the hatch a worker had to break three-point contact with the ladder and somehow wedge his body up against the concrete side of the hatch so as to safely reach up with both hands to close the door.  Plaintiff allegedly sustained injuries when he fell off the ladder while trying to close the hatch using both hands. 

The trial court granted plaintiffs' motion for judgment on the Labor Law § 240(1) claim, denied defendant Lincoln Center's motion to dismiss the §§ 240(1) and 200 and common-law negligence claims, granted defendant/third-party plaintiff the Met’s motion for judgment on its claims against Strauss Painting and Creative Finishes for breach of an agreement to procure insurance, denied Strauss's and Creative's motions to dismiss the third-party complaint as against them, denied the Met's and Creative's motions for judgment declaring that third-party defendant Nova Casualty Company is obligated to indemnify and defend them, and granted Nova's motion for judgment declaring that it has no obligation to indemnify the Met or Creative.

Labor Law § 240(1) (DRA)
The Appellate Court held that the Met and Lincoln Center failed to provide adequate safety devices to protect plaintiff from the risks associated with gaining access to the Opera House roof and the steel carriage rail because not only did plaintiff have to be elevated to the roof from the sixth floor, for which a ladder was provided, but he also had to use both hands to close the hatch door while standing on the ladder.  Accordingly, no safety device was provided to protect plaintiff against the risk associated with breaking three-point contact with the ladder so as to use both hands to close the hatch door.  The Met and Lincoln Center were thus held liable for plaintiff's injuries under the statute. 

PRACTICE POINT:  Anyone surprised that the plaintiff obtained Summary Judgment where the he was not supplied any safety device to keep him from falling while he was, due to a broken hatch hinge, forced to stand on a ladder and use both hands to close the hatch is either reading their first edition of this newsletter or has been using it only to line the bird cage.  This was a no brainer.

Labor Law § 200 and Common-Law Negligence (VCP)

The property owner, Lincoln Center, argued that the Labor Law § 200 and common-law negligence claims should be dismissed as against it because it did not create or have any notice of a defect in the hatch door. The Court however testimony of the owner’s chief engineer to find an issue of fact as to its notice of the defect in the hatch door. The engineer had testified that a worker standing on the ladder had to wedge his body against the wall to avoid falling while reaching up with both hands to close the hatch door.

Lincoln Center also argued that it was an out-of-possession landlord not responsible for the maintenance of the Opera House, and thus can only be held liable for a dangerous condition on the premises if it had notice of a significant structural or design defect that is contrary to a specific statutory safety provision.  The Court again relied on the testimony of the owner’s chief engineer to find an issue of fact as to its notice of the defect in the hatch door

Indemnity Issues in Labor Law (SEP)
In addition, the Met sought indemnification and contribution from Strauss and Creative and damages arising from their failure to procure owner's and contractor's liability insurance. Strauss's vice president, who signed the general contract, testified that he was also a vice president of Creative and had authority to bind Creative to the general contract. However, the presidents of Strauss and Creative dispute this; they claim that Creative is not bound by the general contract. Thus, while the record demonstrates that Strauss is liable to the Met for its failure to procure insurance, issues of fact as to whether Creative was contractually obligated to procure insurance preclude a finding that Creative too is liable to the Met for a failure to procure insurance.

 

Bellreng v Sicoli & Massaro, Inc.
July 5, 2013
Appellate Division, Fourth Department

Plaintiff, an employee of Innovative, fell through the deteriorated gypsum roof decking onto scaffolding that had been erected inside the building to prevent debris from falling into the pool.  At the time of his fall, plaintiff had unhooked his safety harness from the steel lifeline that had been placed on the roof. 

Defendant Board of Education hired third-party plaintiff Sicoli as the general contractor on the project, who subcontracted with third-party defendant Guard to remove the existing roof.  Guard subcontracted that work to fourth-party defendant Innovative. 

Plaintiff filed this action for Labor Law violations and common-law negligence.  Sicoli moved for judgment dismissing plaintiff’s complaint and for judgment on its third-party complaint.  Guard moved for partial judgment on its contractual indemnification claim.  Plaintiff cross-moved for partial judgment on his §§ 240(1), 240(3) and 241(6) claims, and Guard cross-moved to dismiss the §§ 200, 240(1) and 241(6) claims. 

The trial court denied defendants’ motion and Guard’s cross-motion regarding the § 200 claim; denied all motions concerning the § 240(1) claim; granted defendants’ motion to dismiss the § 241(6) claim except as it related to 12 NYCRR 23-1.16; and denied defendants’ motion for judgment on the third-party complaint.

Labor Law § 240(1) (DRA)
Plaintiff established the safety equipment failed to provide proper protection as his deposition testimony revealed that although he could have been connected to steel lifeline at the location where he fell, he was moving to new work area, and he could not reach that new work area while constructed to the lifeline.  However, the Appellate Court held plaintiff failed to establish whether he had good reason for disconnecting the lifeline or whether his own actions in disconnecting from the lifeline were the sole proximate cause of his fall. 

The Appellate Court further held that Guard failed to establish that plaintiff’s actions were the sole proximate cause of the accident i.e. that he knew or should have known that he was expected to either use multiple retractable lanyards or a safety rope in order to reach all areas of the roof.

PRACTICE POINT:  This case seems to address the first step to a sole proximate cause defense.  The first criteria, was the safety device available is where the court found a question of fact.  Here there was testimony from the plaintiff that there was no way for him to travel through this specific area while clipped into the safety line.  That would seem to eliminate that portion of the sole proximate cause defense as all three must be met however the defendant put forth proof that the plaintiff had been instructed to always have his harness attached and not to enter any area where this was not possible thus raising a question of fact as to whether the reason provided by the plaintiff was sufficient for disconnecting his safety line.   This defense is established through deposition testimony and the importance of understanding the criteria necessary to establish a sole proximate cause defense cannot be overestimated.  Additionally, having spoken with your witnesses prior to the plaintiff’s deposition so you know what they will say when deposed is essential.

Labor Law § 241(6) (JAE)

The Appellate Court affirmed the denial of defendants’ motion with respect to the § 241(6) cause of action insofar as it is based upon a violation of 12 NYCRR 23–1.16. 

It concluded that subpart (b) [Attachment required. Every approved safety belt or harness provided or furnished to an employee for his personal safety shall be used by such employee in the performance of his work…At all times during use such approved safety belt or harness shall be properly attached either to a securely anchored tail line, directly to a securely anchored hanging lifeline or to a tail line attached to a securely anchored hanging lifeline…] applied to the facts of this case, even though plaintiff was not actually attached to the lifeline at the time of his fall.  Plaintiff testified at his deposition that the safety devices provided to him were inadequate for him to complete his work because they did not afford him access to the entire roof.

Labor Law § 200 and Common-Law Negligence (VCP)
The motion relative to plaintiff’s Labor Law 200 claim was granted where it was established that neither Lockport, nor Sicoli, exercised actual supervision, direction or control over plaintiff’s work. In so holding, the Court noted that at most, these defendants engaged in monitoring and oversight of the timing and quality of work, which is insufficient to raise a triable issue of fact with respect to supervision or control for the purposes of Labor Law 200.  
Indemnity Issues in Labor Law (SEP)
As such, Sicoli’s motion for contractual indemnity was also granted due to the fact that it had no actual negligence.
Finally, the Court denied Guard’s motion for contractual indemnity on the basis that it did not conclusively establish that Innovative was negligent. Apparently, the clause at issue in the Guard/Innovative contract only provided indemnification where Innovative’s negligence caused the loss.
Peiper’s Point – This case provides a nice illustration of the difference between a negligence trigger and a broad indemnity clause. Notice, there was no “negligence” trigger in the Sicoli/Guard contract. Thus, Guard was stricken with indemnity despite the fact that it was not negligent. On the contrary, because Guard cannot establish Innovative’s negligence (in light of the sole proximate cause issue facing plaintiff) it cannot pass through its liability until after trial.

 

Elizabeth Frances Kerrigan v TDX Constr. Corp.
July 16, 2013
Appellate Division, First Department

A construction worker died after he was injured when a 14,000-pound boom lift, which was being lifted off the roof by a crane, drifted out of position and pinned him against a wall.  The owner, defendant Columbia, hired defendant TDX as general contractor, who hired defendant Koenig to supply structural steel.  Koenig contracted with decedent to install the steel, and he hired workers from defendant Erin.  Erin was wholly owned by plaintiff, decedent’s wife, who had no other construction experience and was barely involved in management as it was decedent who supervised Erin’s workers and managed its operations. 

The only crane operator at the site was not an Erin employee, but decedent paid him to perform lifts on two days and on both those occasions, he worked under decedent’s direct supervision.  For example, decedent supervised the initial “pick” of the boom lift to roof, telling Erin employees how to rig the boom lift to the crane’s cables.  On the date of the incident, decedent told the boom lift driver where to position the boom lift to be removed from the roof and acted as signal person, directing the crane operator via hand signals, though he did not personally direct the Erin employees who was rigging the boom lift to the crane.

The trial court granted defendants and third-party defendants motions for summary judgment dismissing the complaint, and denied plaintiff’s cross-motions for partial judgment on the issue of liability with respect to the Labor Law §§ 240(1) and 241(6) claims.  The trial court held that decedent’s conduct was the sole proximate cause of the incident that led to his death, identifying numerous contributing causes, including improperly rigging the boom lift by an Erin employee, the failure to use tag lines to steady the load, and the use of hand signals rather than the “squawk box” speaker in the crane’s cab.  According to the trial court, decedent “alone defined the task at hand, chose the methods and means to be used,” and made the decisions that led to the incident.

Labor Law § 240(1) (DRA)
On appeal, plaintiff contends that NYC Administrative Code § 26-172 (now re-codified as § 28-404.1) imposed a non-delegable duty on Columbia and TDX to hire a licensed rigger and therefore, the lack of a licensed rigger was also a proximate cause of the incident, thereby defeating the “sole” proximate cause defense. 

The Appellate Court, in reviewing the version of the Administrative Code (Code) in effect at the time of the incident, noted § 26-173, which contained an exemption “to the hoisting or lowering of any building materials or equipment, other than boilers and tanks, in the course of the construction or alteration of any building or structure.” 

Accordingly, the Appellate Court held that this incident occurred during the lowering of the boom lift, which was being used as equipment in the course of construction and therefore, the circumstances surrounding this incident fell squarely under this exemption and no licensed rigger was expressly required by the Code.  The Appellate Court further held that plaintiff failed to raise an issue of fact as to whether defendants breached the duty to provide adequate safety devices that proximately caused the incident.

PRACTICE POINT:  This case, while tragic, outlines the simple fact that you need to read all applicable regulations.  Here the attorney for the defendant was able to point out to the court that while one section of the Administrative Code required a licensed rigger there was an exception in a later section which absolved the defendant of liability.  Early investigation into the role played by the plaintiff in decision process as to the means and manner of the work is also critical in an instance like this where the plaintiff is the owner or operator of the company and crew.

 

Flossos v Waterside Redevelopment Co., L.P.
July 17, 2013
Appellate Division, Second Department

Defendant/third-party plaintiff Waterside owned and managed an apartment building in Manhattan.  Waterside hired third-party defendant Pelar Painting Co. (Pelar) to paint an apartment.  Plaintiff, an employee of Pelar, leaned a closed 4-foot A-frame ladder against a closet door and climbed up the ladder to paint the closet’s ceiling.  Unfortuantely for him, plaintiff failed to lock the horizontal bars of the ladder and when a piece of ceiling fell down on him, he and the ladder fell to the floor. 

Plaintiff filed suit alleging negligence and violations of Labor Law §§ 200, 240(1) and 241(6).  Waterside filed a third-party complaint against Pelar.  Waterside moved for summary judgment to dismiss the Complaint and on their third-party Complaint for common-law and contractual indemnification, while Pelar cross-moved to dismiss the third-party Complaint.  The trial court denied Waterside’s motion with respect to the negligence and § 240(1) claims, and on the third-party complaint.  The trial court also denied Pelar’s cross-motion.

Labor Law § 240(1) (DRA)
Appellate Court reversed the trial court’s holding, analyzing plaintiff’s incident as a falling object case.  The Appellate Court held that Waterside met its prima facie burden because “plaintiff did not fall as a result of inadequate protection and the object did not fall on the plaintiff due to ‘the absence or inadequacy of a safety device of the kind enumerated in the statute.’”  According to the Appellate Court, “insofar as the ceiling was a part of the permanent structure of the building, it was not a falling object that was “being hoisted or secured.”  Interestingly, the Appellate Court noted that plaintiff admitted in his deposition that the ladder was appropriate for the job, that he inspected it and that it was in good working order.

PRACTICE POINT:  This is not a falling object case as the ceiling was not a part of the task being undertaken by the plaintiff and was not an object being hoisted or secured.  The issue to us is whether this should be a falling worker case.  The court found that it was neither a falling worker nor a falling object case.  My opinion, for what it is worth, is that the court granted the defense motion on the falling worker portion of the claim based on the fact that it was not the ladder itself which was the cause of the fall and that had the ceiling not fallen on the plaintiff that he would not have fallen from the ladder and been injured.  Thus it was not the ladder, the safety device he was using at the time, which caused the injury but rather the falling object.  That said I am not sure the same result would follow from the fourth.

Indemnity Issues in Labor Law (SEP)

In addition, the Court also affirmed the dismissal of plaintiff’s Labor Law 200 claim. It did not, however, dismiss the common law negligence claim on the basis that plaintiff had presented a possible res ipsa claim.
It followed that where there was a question of fact as to the negligence of Waterside, its motion for contractual indemnification could not be granted against Pelar. However, Pelar’s motion was likewise denied where it was unable to establish itself free from any negligence.

 

Meabon v  Town of Poland
July 19, 2013
Appellate Division, Fourth Department

Plaintiff, an employee of third-party defendant, Cadillac, was injured when he slipped and fell from the roof of the structure.  Plaintiff filed this Labor Law and common-law negligence suit seeking damages allegedly sustained while constructing a pole barn for defendant/third-party plaintiff, Town of Poland (Town). 

Town moved for partial summary judgment on its contractual indemnification claim against Cadillac, and Cadillac cross-moved to dismiss the third-party Complaint.  The trial court granted the Town’s motion, and denied Cadillac’s cross-motion.

Indemnity Issues in Labor Law (SEP)

Workers’ Comp. Law § 11 prohibits a third-party action against an employer unless the plaintiff sustained a grave injury or there is a written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution or indemnification of the third-party plaintiff.  Here, the Town conceded that plaintiff did not suffer a “grave injury.”

However, the Appellate Court noted that “a clause in a contract executed after a plaintiff’s accident may nevertheless be applied retroactively where evidence establishes as a matter of law that the agreement pertaining to the contractor’s work was made as of a pre-accident date, and that the parties intended that it apply as of that date.” 

Here, the Appellate Court held that Cadillac met its burden on its cross-motion by establishing that although there was a contract between the parties, it was executed nearly a week after plaintiff’s accident.  Although the contract is not dated, based on language in the contract, the Appellate Court held that it clearly became effective on the date the parties entered into the contract.  Thus, Cadillac demonstrates that the parties did not intend the contract to be applied retroactively.  The Appellate Court consequently dismissed the Town’s third-party Complaint.

Hugo v Sarantakos
July 31, 2013
Appellate Division, Second Department

Defendant owned residential property and hired plaintiff, a self-employed painting contractor, to paint the second-floor exterior of the premises.  Plaintiff, while standing on the second-highest rung of a 24-foot extension ladder that he owned and brought to the worksite, lost his balance and fell to the ground.  Plaintiff testified that prior to the incident; the ladder did not move or slip, and remained in an upright position after plaintiff fell off it. 

Plaintiff filed suit alleging violations of Labor Law §§ 200, 240(1) and 241(6).  Defendant moved for summary judgment dismissing the Complaint.  Plaintiff only opposed that branch of the motion with respect to the § 240(1) claim.  The trial court dismissed the §§ 200 and 241(6) claims, but denied that branch of the motion seeking dismissal of the § 240(1) claim.  The trial court also searched the record and awarded summary judgment to plaintiff on his § 240(1) claim.

Labor Law § 240(1) (DRA)
As you all are aware by now, “the mere fact that a plaintiff fell from a ladder does not, in and of itself, establish that proper protection was not provided.”  Rather, there must be evidence that the ladder was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial factor in causing plaintiff’s injuries.  “Where a plaintiff falls off the ladder because he or she lost his or her balance, and there is no evidence that the ladder from which the plaintiff fell was defective or inadequate, liability pursuant to Labor Law § 240(1) does not attach.”

Here, the Appellate Court held that defendant demonstrated prima facie entitlement to summary judgment by submitting on plaintiff’s deposition testimony wherein he testified that the ladder from which he fell was not defective or inadequate and that the ladder did not otherwise fail to provide protection; rather, plaintiff fell because he lost his balance.  Thus, plaintiff’s Complaint was dismissed.

PRACTICE POINT:  This is the Blake case all over again.  10myears after the Court of Appeals decided Blake it is still one of the most important labor law cases to be aware of.  Where the ladder, or presumably other safety device, is not defective, and the plaintiff falls for some reason such as a simple loss of balance as in the instant case or from failing to secure the clips on an extension ladder as in the Blake case, it is the plaintiff’s own actions which are the sole proximate cause of the plaintiff’s injury as the statute was not violated.  I recommend that anyone working on labor law cases read Blake as it gives a great summary of the labor law and the sole proximate cause defense.  Remember that to access the case all you need to do is to ctrl/click on the name of the case which we have inserted as a hyperlink.

 

Murillo v Porteus
July 31, 2013
Appellate Division, Second Department

Plaintiff was employed by Otero Home Improvement and its principal to perform renovations at a house owned by Geoffrey and Kristen Porteus.  In addition to owning the house, Geoffrey Porteus (Porteus) was also the principal of the Hawk Shaw Golf Course Construction (Hawk Shaw), whose employee, Willy Rodriguez, was likewise performing renovations at the house.

On June 20, 2007, plaintiff was injured at the house when three of his fingers were severed while using a table saw that was missing a blade guard.  Nine days later, plaintiff’s counsel sent Prorteus a letter requesting the table saw be preserved in its post-accident condition.  Porteus admitting he owened a table saw that was at his house, but a dispute arose over whether there were one or two table saws at the premises, one owned by Hawk Shaw or Porteus, and the other owned by Otero Home Improvement.  After commencement of this action, Porteus acknowledged that the table saw owned by him or Hawk Shaw could not be located.

Porteus moved for summary judgment, contending (1) there is no evidence that he owned or controlled the table saw that caused plaintiff's injury, (2) plaintiff’s Labor Law § 200 and common-law negligence claims should be dismissed as asserted against him because he did not supervise, direct, or control plaintiff's work, and he did not have actual or constructive notice that the subject table saw was missing a blade guard, (3) plaintiff’s Labor Law § 241(6) claim should be dismissed as asserted against him pursuant to the homeowner's exemption, and (4) he was entitled to common-law indemnification from Willy Rodriguez and Hawk Shaw.  The trial court denied Porteus’ motion.

Labor Law § 200 and Common-Law Negligence (VCP)

The Appellate Court held that defendant Porteus failed to show that he “neither created the alleged danger or defect in the instrumentality nor had actual or constructive notice of the dangerous or defective condition” because there is evidence in the record that a table saw owned or controlled by him was at the house where the accident occurred, and the table saw was used by plaintiff at the time of his injury.  Moreover, Porteus admitted that he visited the subject house on more than one occasion prior to the incident and there was evidence that he supplied other materials for the job and gave instructions to Rodriguez prior to the incident. 

Labor Law § 241(6) (JAE)
With respect to the cause of action pursuant to Labor Law § 241(6), in order to receive the homeowners’ exemption, a defendant must satisfy two prongs: that the work was conducted at a dwelling that is a residence for only one or two families, and the defendant did not direct or control the work. Summary judgment on this issue was properly denied, as the evidence was sufficient to raise a triable issue of fact as to whether Porteus supervised or controlled the work and, further, there was a triable issue of fact as to whether Porteus intended to use the subject house as rental property.

 

LABOR LAW § 241(6) REGULATIONS; SPECIFIC OR GENERAL (MAS)

Regulation § 23–3.2(a)(2) requiring gas, electric, water, steam and other supply lines be shut off, capped or sealed before demolition work begins, is sufficiently specific to support to a § 241(6) cause of action (Pino v Martin Co., 22 AD3d 549, 802 NYS2d 501 [2d Dept 2005]).

Regulation § 23–3.2(a)(3) requiring gas, electric, water steam and other operative supply lines be protected or moved before demolition work begins so as to prevent damage, was held inapplicable where worker injured by falling into a hole as a result of basement floor collapse during demolition of a brick wall with a jackhammer (Balladares v Southgate Owners Corp., supra).

Regulation § 23–3.2(b) pertains solely to protection of stability of adjacent structures, and not to protection of stability of walls within a building or structure being demolished (Perillo v Lehigh Construction Group, Inc., supra).  Thus, regulation § 23–3.2(b) not applicable where worker injured after he was struck by falling steel beam while he was waiting for debris to be loaded to his packer truck (Bornschein v Shuman, 7 AD3d 476, 776 NYS2d 307 [2d Dept 2004]).

Regulation § 23–3.3 describing applicable “demolition” work as defined in § 23-1.4(b)(16) as “work incidental to or associated with the total or partial razing of a building or other structure including the removal or dismantling of machinery or other equipment”; requires work involving changes to structural integrity of a building, as opposed to mere renovation of its interior (Cardenas v One State Street, LLC, 68 AD3d 436, 890 NYS2d 41 [1st Dept 2009]); however, removing portion of wall not “demolition” under § 23-1.4(b)(16) (Baranello v Rudin Management Co., 13 AD3d 245, 785 NYS2d 918 [1st Dept 2004]); creating hole in wall or attempting to repair hole held not “demolition work” (Quinlan v New York, supra); removing garage door as part of garage renovation work held not “demolition work” (Sparkes v Berger, 11 AD3d 601, 783 NYS2d 390 [2d Dept 2004]). 

Regulation § 23–3.3(b) requiring adjacent structures be examined and protected where necessary before demolition beings, is sufficiently specific to support a § 241(6) cause of action.  However, regulation § 23–3.3(b) held inapplicable where worker injured as result of basement floor collapse during demolition of brick wall with jackhammer (Balladares v Southgate Owners Corp., supra).

Regulation § 23–3.3(b)(2) providing that masonry shall not be permitted to fall in such masses as to endanger that structural stability of any floor or structural support that such masonry may strike in falling, held potentially where there was evidence from which it could be inferred that masonry from collapsed eighth-floor wall damaged floor and staircase, endangering their stability (Kaminski v 53rd Street and Madison Tower Dev., LLC, 70 AD3d 530, 895 NYS2d 76 [1st Dept 2010]).

Regulation § 23–3.3(b)(3) providing that walls, chimneys and other parts of buildings and structures “shall not be left unguarded in such condition that such parts may fall, collapse or be weakened by wind pressure or vibration”, does not require that “fall” or “collapse”, as distinguished from “weak[ing]”, be caused specifically by “wind pressure” or “vibration”, is sufficiently specific to support a § 241(6) cause of action (Perillo v Lehigh Const. Group, Inc., supra). 

Regulation § 23–3.3(b)(3) held potentially applicable where unsecured standing pipes on same level as plaintiff fell when hit by debris from demolition (Wilinski v 334 East 92nd Housing Dev. Fund, 18 NY3d 1 [2011]); material issues of fact existed whether regulation applied to worker who cut his leg with gas-powered demolition saw when wall of aluminum shed he was demolishing fell on him (Ortega v Everest Realty LLC, 84 AD3d 542, 923 NYS2d 74 [1st Dept 2011]).

Regulation § 23–3.3(b)(3), even if worker engaged in removal of mirrored wall panels from drywall, so walls of cooperative apartment could be plastered, primed, and painted, was involved in “demolition work,” regulation inapplicable where mirrored glass panel that broke and cut worker's hand when he wedged spatula between panel and drywall and deliberately attempted to loosen panel by striking spatula with hammer did not break because it was weakened by progress of demolition work, and worker not injured as result of any hazard against which building owner had duty to guard by performing inspections or appropriate shoring or bracing; hazard arose from actual performance of injured worker's job, and not from structural instability caused by progress of other demolition work (Garcia v 225 East 57th Street Owners, Inc., 96 AD3d 88, 942 NYS2d 533 [1st Dept 2012]).

Regulation § 23–3.3(b)(3) held inapplicable where brackets supporting pipes worker was removing gave way, causing pipe to fall and hit ladder on which worker was standing (Vega v Renaissance 632 Broadway, LLC, 103 AD3d 883, 962 NYS2d 200 [2d Dept 2013]); inapplicable where worker injured when glass pane cracked and fell on him while he was assisting coworker attempting to dislodge glass pane from interior partition wall (Maldonado v AMMM Properties Co., 107 AD3d 954, 968 NYS2d 163 [2d Dept 2013]); inapplicable where working using jackhammer to chip away mortar surrounding a cinder block and observed cinder block, still attached to either one or two other cinder blocks, start to fall; worker tripped on broken brick on platform while attempting to move out of way and cinder block on which he was working, along with attached cinder blocks, fell on his foot, because regulation requires “continuing inspections against hazards which are created by the progress of the demolition work itself,” rather than inspections of how demolition would be performed (Smith v New York City Housing Authority, 71 AD3d 985, 897 NYS2d 232 [2d Dept 2010]).

Regulation § 23–3.3(c) requiring continuing inspections during “hand demolition” work to detect hazards from weakened or deteriorated walls or floors or loosened material, held sufficiently specific to support a § 241(6) cause of action (Perillo v Lehigh Const. Group, Inc., supra; Gawel v Consolidated Edison Co. of New York, Inc., supra; Randazzo v Consolidated Edison Co. of New York, 271 AD2d 667, 706 NYS2d 467 [2d Dept 2000]), and intended to provide a safeguard against hazards created by the progress of demolition work (Salinas v Barney Skanska Const. Co., 2 AD3d 619, 769 NYS2d 559 [2d Dept 2003]). 

Regulation § 23–3.3(c) held applicable because removal and dismantling of rail constituted “demolition” of a structure (Medina v City of New York, 87 AD3d 907, 929 NYS2d 582 [1st Dept 2011]); applicable where worker struck by piece of glass that fell from window he was dismantling (Bald v Westfield Academy, 298 AD2d 881, 747 NYS2d 623 [4th Dept 2002]).

Regulation § 23–3.3(c) held potentially applicable where work involved prying 80-pound electrical panel from wall; regulation’s reference to “loosened material” could be construed to encompass electrical panel being removed (Cardenas v One State Street, LLC, supra); held applicable where unsecured standing pipes on same level as plaintiff fell when hit by debris from demolition (Wilinski v 334 East 92nd Housing Dev. Fund, supra), applicable where worker injured as a result of basement floor collapse during demolition of brick wall with jackhammer (Balladares v Southgate Owners Corp., supra).

Regulation § 23–3.3(c) held inapplicable where correction officer struck by dropped doorframe (Bolster v Eastern Bldg. and Restoration, Inc., 96 AD3d 1123, 946 NYS2d 298 [3d Dept 2012]); inapplicable absent proof that required inspections were not performed or that floor was structurally unstable where demolition laborer injured when floor collapsed after a wall fell on it (Martins v Bd. of Educ. of City of New York, 82 AD3d 1062, 919 NYS2d 196 [2d Dept 2011]); inapplicable where plaintiff injured by performance of demolition work itself and not any structural instability caused by such work (Campoverde v Bruckner Plaza Assoc., L.P., 50 AD3d 836, 855 NYS2d 268 [2d Dept 2008]); held inapplicable where plaintiff’s injuries were not caused by hazard created by demolition work (Ofri v Waldbaum, Inc., 285 AD2d 536, 728 NYS2d 467 [2d Dept 2001]); held inapplicable to plaintiff who was injured when plywood planks were blown onto him by strong gust of wind (Randazzo v Consolidated Edison Co. of New York, 271 AD2d 667, 706 NYS2d 467 [2d Dept 2000]).

 

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