From the Editor:
Well August is a traditionally slow month but this month has been incredibly slow. I went back and looked at last year’s edition for September and there were eight Labor Law cases which came out in August last year. We have eclipsed that mark as the departments have ruled on only four this August.
We learned last week that the Fourth Department is losing another judge as Justice Matroche is retiring from the bench. He follows Justice Gorski leaving two open spots on the bench to be filled by the governor. Things like that always get me thinking about how the labor law picture will change in the fourth so we did a little research. While on the bench Justice Martoche ruled on 33 labor law cases, finding for the plaintiff 17 times and for the defendant 14 times with 2 “split” decisions where a portion of the case was found for the plaintiff and a portion for the defendant. Judge Gorski ruled on 23 labor law cases, with 15 decisions for the plaintiff and 6 for the defendant with 2 split decisions. I am not trying to imply that either of these judges had a preference for the plaintiff or the defendant, only reporting the numbers. What overall effect this change in personnel will have remains to be seen, but we are following to see if there is a trend. I guess it is true what they say, I am a labor law junkie.
Looking out my window these days is a trying experience. My eyes are constantly drawn to the court house. Must be a flash back to that jury which just would not listen to reason you think, because I lost my coat there someplace, maybe he just loves arguing motions and wishes he was there? None of those reasons are my current affliction. As you can see below there are doing work on the very top of the building and there is scaffold around the entire top of the building. For a guy who spends many hours each day contemplating the ins and out of labor law cases it just seems to be a fitting view out the window. In the background beautiful Lake Erie, but in the foreground scaffolding, lots and lots of high scaffolding, and visible if you look closely, two workers at the very apex. Borrowed binoculars from Mike Perley and could see their harnesses, feeling better about the entire thing now. I have included a picture taken from my window of the view.
I had the pleasure of taking my 7 year old son to the Empire State building recently. As you wind your way through the maze to get to the elevator there are photographs on the walls. The picture below caught our attention for very different reasons. As I saw this picture I was reminded of two distinct things. First of all there is the courage of the workers to work unprotected, or even protected for that matter, at such a height that it makes my knees weak. Second to pictures of workers in incredible spots, on multiple ladders and cables without any fall protection at all leads me to recall that it was the construction of those skyscrapers that was the reason behind the labor law. As for my 7 year old he just though it was cool and looked like fun.
Steve Peiper and I will be hosting a 60 to 90 minute webinar on September 12, 2013 at 10:00 so if you are interested save that time slot for us. Information on how to sign in for the webinar will be provided in an email several days before the webinar. We have had lots of positive feedback from our prior webinars and have 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 hope you enjoy this edition and hope you can join us for the webinar. As always feel free to call or email at any time with any question about the
David R. Adams
Hurwitz & Fine, P.C.
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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.
Rodriguez v DRLD Dev., Corp.
August 6, 2013
Appellate Division, First Department
Plaintiff, assigned to tape and polish installed sheetrock walls on the first floor of a construction project, tripped on metal cable and dislodged a pile of sheetrock boards standing approximately eight feet high and leaning against a wall, not in use. Plaintiff attempted to stop the boards from falling with her hands and head, but she could not support their weight and sustained injuries.
Plaintiff filed this action for Labor Law violations, and defendants moved to dismiss. The trial court denied defendant NCJ Development’s motion regarding the §§ 240(1) and 241(6) claims and granted plaintiff’s cross-motion for partial summary judgment on her § 240(1) claim.
Labor Law § 240(1) (DRA)
Eight foot tall sheetrock boards are leaned up against the wall when the plaintiff trips and falls into them. The sheetrock is on top of 2 foot high blocks of wood and the plaintiff knocks the sheetrock over. As the sheetrock starts to tip over the plaintiff tries to stop it with her hands and head sustaining injury. That scenario, per the appellate court agreeing with the trial court, implicates Labor Law § 240(1) as the sheetrock that fell upon plaintiff was located atop 2 foot high blocks, “a sufficient height differential to implicate § 240(1)'s protections” The Appellate Court held plaintiff was not entitled to summary judgment on her § 240(1) claim because here, just as in Wilinski, there is a “potential causal connection between the objects’ inadequately regulated descent and plaintiff’s injury.” Accordingly, it cannot be determined on the record whether plaintiff’s injuries were proximately caused by the lack of a safety device of the kind required by the statute.
PRACTICE POINT: In other words, the court was convinced that an object falling 2 feet is far enough to implicate the labor law, but that they were not convinced that there is or could be any protective device available to prevent sheet rock leaned against the wall from tipping over when someone falls into it. The think to recall from this case and the others like it is that while matters why the object falls what you need to look for, and I recommend asking specifically of the plaintiff, is what type of safety device was missing. What safety device would have prevented the accident and injury?
Labor Law § 241(6) (JAE)
The Appellate Division affirmed the finding of the motion court that issues of fact existed with respect to § 23–1.7(e)(2) and § 23–2.1(a)(1). As for § 23–1.7(e)(2), it was unclear whether the cable plaintiff tripped over before she was struck by the sheetrock was an inherent part of the construction of the building or was “debris.” This was especially true in light of testimony that the premises was cleaned prior to the sheetrock work. A violation would only occur if it was debris.
As for § 23–2.1(a)(1), while there was no testimony that the sheetrock boards blocked a passageway, walkway, stairway or thoroughfare, the Appellate Division held that the simple fact that the sheetrock fell on plaintiff raised an issue of fact as to whether the boards were stored in a “safe and orderly manner.”
Thomas v Goldman Sachs Headquarters, LLC
August 13, 2013
Appellate Division, First Department
In an unfortunate chain of events, plaintiff allegedly tripped on overlapping Masonite [a hard board] which had been placed five or six feet away from a doorway. After he tripped, his foot then slid into a gap in the floor approximately eight to ten inches wide and twelve to eighteen inches deep directly in front of the doorway. Thereafter, plaintiff fell into a glass wall and sustained injuries. The trial court granted defendants’ motion to dismiss plaintiff’s Labor Law § 241(6) cause of action based on 12 NYCRR § 23-1.7(e)(1) and (e)(2).
Labor Law § 241(6) (JAE)
The Appellate Division ultimately reversed the dismissal of Plaintiff’s 241(6) claim premised on a violation of § 23-1.7(e)(1), but affirmed the dismissal to the extent based on § 23–1.7(e)(2). Section 23–1.7(e)(1) provides that “[a]ll passageways shall be kept free from ... conditions which could cause tripping.” In reversing the dismissal on this provision, the court pointed to plaintiff’s testimony that, after he tripped, he slid into a gap in the floor approximately 8 to 10 inches wide and 12 to 18 inches deep directly in front of the doorway. Given that the gap in the floor was directly in front of the doorway, and the testimony that plywood should have been used to cover the gap since Masonite did not provide sufficient support, the court found that plaintiff raised an issue of fact as to whether the proximate cause of his injury was a tripping hazard within a passageway.
However, with regard to § 23–1.7(e)(2), which states “[t]he parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials,” the claim premised on this provision was properly dismissed. Regardless of whether plaintiff was using Masonite for his work when the accident occurred, the protective covering had been purposefully installed on the floor as an integral part of the renovation project. As such, it cannot be construed as accumulated debris or scattered materials.
Jimenez v Monadnock Constr., Inc.
August 14, 2013
Appellate Division, Second Department
Plaintiff filed suit against defendants Monadnock, Related, Amsterdam and Sylgar (the main action) after allegedly sustaining an injury while working for Bedroc at a premise located in Manhattan. Plaintiff asserted common-law negligence and Labor Law violations. Thereafter, Monadnock, Amsterdam and Sylgar (third-party plaintiffs) filed a third-party action against Bedroc for indemnification to recover damages for breach of a contract to procure insurance and contribution.
Third-party plaintiffs also served a second compliant on ASCIC, which issued a liability insurance policy to Bedroc in connection with the work at the premises. ASCSI disclaimed coverage on behalf of ASCIC to Bedroc based on, among others, late notice and Global Associates, the broker which secured the policy. Third-party plaintiffs also amended their third-party compliant to add Bedroc as a defendant.
Bedroc asserted a cross-claim against ASCIC and ASCSI for judgment declaring that ASCIC was obligated to defend and indemnify it in the main action. Subsequently, Bedroc moved for summary judgment on its cross-claim and ASCIC and ASCSI cross-moved for judgment declaring they are not obligated to defend or indemnify Bedroc in the main action. The trial court denied Bedroc’s motion and granted the cross-motions.
Indemnity Issues in Labor Law (SEP)
At the time of the issuance of the policy, New Jersey, the state where ASCIC issued its policy, required a demonstration of prejudice before an insurer could disclaim based on late notice; New York did not.
“‘In the context of liability insurance contracts, the jurisdiction with the most significant relationship to the transaction and the parties [sic] will generally be the jurisdiction which the parties understood was to be the principal location of the insured risk . . . unless with respect to the particular issue, some other jurisdiction has a more significant relationship’” [internal substitutions and quotations omitted]. Where the covered risks are spread over multiple states, the state of the insured's domicile should be regarded as the principal location of the insured risk.
Here, based on the plain language of the subject policy, Bedroc and ASCIC understood that the insured risks were spread over multiple states and, in certain circumstances, beyond the United States. Moreover, the policy was issued to Bedroc, a New Jersey corporation, through a New Jersey broker, and contains a New Jersey endorsement. Accordingly, New Jersey law would apply and ASCIC’s disclaimer was invalid because ASCIC failed to show that it was prejudiced as a result of Bedroc’s late notice of the plaintiff's accident.
Ross v DD 11th Ave., LLC
August 21, 2013
Appellate Division, Second Department
Plaintiff, an employee of a superstructure contractor, was allegedly injured while stripping wooden forms that had served as frames into which concrete had been poured to form the reinforced concrete columns of a building under construction. Plaintiff testified the incident occurred after he piled a piece of wooden form from the concrete column and placed it on the floor. As he stood up, a separate piece of the form situated above the piece he just removed suddenly fell off the column, striking him in the face.
Plaintiff filed this action, asserting common-law negligence and violations of Labor Law §§ 200, 240(1) and 241(6). The trial court denied defendants motion for summary judgment dismissing plaintiff’s § 240(1) claim and § 241(6) claim based on 12 NYCRR § 23-2.2(a).
Labor Law § 240(1) (DRA)
To recover damages for violation of the statute, “plaintiff must show more than simply that an object fell causing injury to a worker.” Plaintiff must show that, at the time the object fell, it was “being hoisted or secured” or “required securing for the purposes of the undertaking.” Plaintiff must further show that the object fell “because of the absence or inadequacy of a safety device of the kind enumerated in the statute.”
Here, the Appellate Court held defendants evidence submitted in support of their motion did not establish “the absence of a causal nexus between the worker’s injury and a lack or failure of a device” prescribed by the statute. Plaintiff’s deposition, which defendants submitted, presented a triable issue of fact as to whether the piece of form fell on plaintiff “because of the absence or inadequacy of a safety device.”
Contrary to defendants’ contention, the securing of pieces of form to the column would not have been “contrary to the objectives of the work plan” as plaintiff testified that the forms were cut into sections and that he was removing a different section than the one that fell on him. The Appellate Court further held defendants also failed to establish, prima facie, that Steven Charno d/b/a DD 11th Ave. and Eleventh Ave. were neither owners, general contractors nor statutory agents of owners or general contractors, construction managers, or contractors on the project as set forth in the affirmation of defendants’ counsel as it was not based on personal knowledge.
PRACTICE POINT: Two critical issues addressed here by the court that are worth mention. First is the objective of the work claim. Where removal of the portion of the work that becomes the falling object is in question the cases revert to a seemingly simple question, was it a better practice, or even possible, to secure the portion of the job site which eventually became the falling object as the plaintiff works on a different part of the job. This question becomes so tied up in the overall job that it is difficult to separate. Does that mean that if I am removing a brick wall that I should brace the brick immediately next to the one I am removing? The brick 3 feet away, should it be secured? There is no hard and fast rule here but the second department has historically been among the most pragmatic of the departments however here it is hard to see in what manner the pieces of sheetrock should be secured while leaned against the wall waiting to be installed. The second issue from this case is simple, if you are going to move to get out as claiming that you are not a contractor as contemplated under the statute the burden is yours to establish that fact and it cannot be based solely on an attorney’s affidavit but rather must be based on evidence from someone with actual knowledge of the situation.
Labor Law § 241(6) (JAE)
The Appellate Division began by advising that although a plaintiff asserting a Labor Law § 241(6) cause of action must allege a violation of a specific provision of the Industrial Code, the failure to identify the Industrial Code provision in the complaint or bill of particulars is not fatal to a plaintiff’s claim.
In this case, the court found that the plaintiff’s belated allegation of a violation of § 23–2.2(a) involved no new factual allegations, raised no new theories of liability, and caused no prejudice to the defendants. They had sufficient notice, through the plaintiff’s bill of particulars and deposition testimony, that the 241(6) cause of action related to inadequately secured forms. Further, the failure to supplement the VBOP was likewise not fatal.
Section 23-2.2(a), which relates to forms used in concrete work, states that “[f]orms, shores and reshores shall be structurally safe and shall be properly braced or tied together so as to maintain position and shape.” Notably, while under provision under the subheading “general requirements,” it is sufficiently specific to support a 241(6) claim.
The Appellate Division held that in the absence of any expert opinion addressing the issue of whether this provision applied where the forms are in the process of being stripped, the defendants, as the proponents of the motion, did not establish their entitlement to summary judgment, and the Court declined to dismiss the claim.
LABOR LAW § 241(6) REGULATIONS; SPECIFIC OR GENERAL (MAS)
Regulation § 23–3.3(e) prescribing the manner in which debris, bricks and other material must be removed from hand demolition sites, is sufficiently specific to support a cause of action under Labor Law § 241(6) (Gonzalez v Marine Midland Bank, Inc., 259 AD2d 999, 689 NYS2d 881 [4th Dept. 1999]). Regulation § 23–3.3(e) held potentially applicable as to whether “buckets or hoists” or “chutes” should have been used where worker, whose job was to retrieve bags containing asbestos debris thrown from an upper roof onto lower roof deck ten feet below, was in the drop zone retrieving a bag for disposal when he was struck (Donnelly v City of Niagara Falls, 5 AD3d 1103, 773 NYS2d 631 [4th Dept. 2004]).
Regulation § 23–3.3(e) sets forth three methods that may be employed during demolition work for the manual removal of debris, brick or other materials such as buckets and hoists, and was held inapplicable because regulation requires buckets and hoists to be used in removal of demolition debris from interior of structures, not in removal of material from its original place in a wall or ceiling (Campoverde v Bruckner Plaza Assocs., L.P., supra); held inapplicable to debris being removed from height to ground where debris on ground was being collected in wheeled dumpster at ground level (Freitas v New York City Transit Authority, 249 AD2d 184, 672 NYS2d 101 [1st Dept. 1998]); held inapplicable to debris being removed on ground (Freitas v New York City Transit Authority, 249 AD2d 184, 672 NYS2d 101 [1st Dept. 1998])
Regulation § 23–3.3(g) requiring certain safety precautions to be taken in areas subject to falling debris, is sufficiently specific to support a § 241(6) cause of action (Murtha v Integral Const. Corp., supra), and held applicable where worker, while performing asbestos removal work on the building's first floor, was struck by six-foot long pipe that fell from several floors above where other workers were performing demolition work, including the cutting and removal of pipes from the pipe chase (Zuluaga v P.P.C. Const., LLC, 45 AD3d 479, 847 NYS2d 30 [1st Dept. 2007]).
Regulation § 23–3.3(g) held applicable where plaintiff and coworker were crossing basement when plaintiff heard drilling from overhead and was immediately showered by debris falling from the ceiling, thereby causing injury (Murtha v Integral Constr. Corp., 253 AD2d 637, 677 NYS2d 338 [1st Dept. 1998]); however, held inapplicable where plaintiff was working in area not subject to falling debris from another area (Salinas v Barney Skanska Const. Co., supra).
Regulation § 23–3.3(k)(1)(ii) is sufficiently specific to support a § 241(6) cause of action, but held inapplicable to worker injured when plywood planks were blown onto him by strong gust of wind (Randazzo v Consolidated Edison Co. of New York, supra).
Regulation § 23–3.3(l) requiring building demolition worksites above first floor or ground level have safe footing free of accumulated debris, and prohibiting situations in which worker has to use pile of debris or materials as substitute for scaffold or other sound flooring, held inapplicable where worker standing on solid surface and there was some loose debris around him as an “unavoidable and inherent” products of demolition work (Harris v Rochester Gas & Elec. Corp., 11 AD3d 1032, 783 NYS2d 733 [4th Dept. 2004]); held inapplicable where worker not engaged in demolition work when he fell from dumpster positioned at ground level (Georgopulos v Gertz Plaza, Inc., 13 AD3d 478, 788 NYS2d 121 [2d Dept. 2004]).
Regulation § 23–3.4(b) pertaining to mechanical methods of demolition, is sufficiently specific to support of § 241(6) cause of action (Terry v Mutual Life Ins. Co. of New York, 265 AD2d 929, 695 NYS2d 808 [4th Dept. 1999]), and held potentially applicable where plaintiff and coworkers were attempting to remove a wall located underneath I-beam by using a crane and as the straps and crane were removed while plaintiff was informing crane operator to cease operations as workers went to another location, wall fell on plaintiff (Docteur v Delleville-Henerson Cent. School Dist., 307 AD2d 751, 762 NYS2d 853 [4th Dept. 2003]).
Regulation § 23–3.4(b) held inapplicable where four–ton steel block fell while being hoisted and crushed worker's foot (Kempisty v 246 Spring Street, LLC, 92 AD3d 474, 938 NYS2d 288 [1st Dept. 2012]); held inapplicable to injuries sustained at sidewalk excavation site because regulation pertains to stability of structure or building that was being demolished but not surrounding structures or building(s) (Sainato v City of Albany, 285 AD2d 708, 727 NYS2d 741 [3d Dept. 2001]).
Regulation § 23–4 “sets forth concrete specifications concerning excavation operations” and are applicable where wall of trench caved in on plaintiffs (Rogers v County of Niagara, 209 AD2d 1034, 619 NYS2d 472 [4th Dept. 1994]).
Regulation § 23–4.1 requiring adequate underpinning, sheet piling, bracing or equivalent means be utilized whenever excavation other than hard rock excavation is performed in vicinity of buildings, structures or utilities, held inapplicable where worker injured as a result of basement floor collapse during demolition of brick wall with jackhammer (Balladares v Southgate Owners Corp., supra); held inapplicable where worker engaged in removing old utility poles was struck by falling pole but there was no evidence that minimal excavation required for installation of new pole caused instability in ground supporting old pole (Zirkel v Frontier Communications of America, Inc., 29 AD3d 1188, 815 NYS2d 324 [3d Dept. 2006]); held inapplicable where worker fell into excavation after losing balance (Scarso v M.G. General Const. Corp., supra).
Regulation § 23–4.1(a) requires stability of structures except in hard rock, whenever any excavation is to be performed in the vicinity of buildings, structures or utilities, the integrity, stability and structural adequacy of such buildings, structures or utilities shall be maintained at all times by the use of underpinning, sheet piling, bracing or other equivalent means to prevent damage to or failureof foundations, walls,supports or utility facilities and to prevent injury to any person. Such underpinning, sheet piling, bracing or equivalent means shall be inspected at least once each day or more often if conditions warrant. Every such inspection shall be conducted by an experienced, designated person.
Regulation § 23–4.1 is aimed primarily at protecting against collapse of structures associated with loss of stability due to excavation, and is sufficiently specific to support a Labor Law § 241(6) cause of action (Sainato v Albany, 285 AD2d 708 [3d Dept. 2001]). Regulation § 23–4.1 held potentially applicable where light pole broke off from foundation after adjacent sidewalk had been removed (Sainato v Albany, supra); held inapplicable to subcontractor's employee who was injured when, while preparing to take down brick wall using jackhammer, basement floor he was standing on collapsed, causing him to fall into hole (Ballardares v Southgate Owners Corp., supra); held inapplicable to accident where worker fell into open five-foot trench when earth beneath his feet gave way (Ozzimo v H.E.S., Inc., supra).
Regulation § 23–4.1(a) is primarily aimed at protecting against collapses of structures associated with loss of stability created by excavation, and held applicable to injuries sustained as result of fallen light pole (Sainato v City of Albany, supra).
Regulation § 23–4.1(a) held inapplicable where worker injured while bringing mortar to bricklayer using shovel had to walk down slope of dirt, debris, and rock created by excavator that was about six feet high and about ten feet long; as he took first step down hill, ground gave way, causing him to fall forward (Ulrich v Motor Parkway Properties, LLC, 84 AD3d 1221, 924 NYS2d 493 [2d Dept 2011]); inapplicable to accident where worker fell into depression formed when ground surrounding eight-foot deep two-foot diameter excavation settled (Ruland v Long Island Power Authority, 5 AD3d 580, 774 NYS2d 84 [2d Dept. 2004]); inapplicable to accident where worker lost his balance on truck's metal step while alighting from truck and fell into excavation located four to five feet away (Scarso v M.G. General Const. Corp., supra); inapplicable where worker injured while installing water line pipe in trench seven feet deep when back hoe being used to dig trench was located thirty feet from worker when it dislodged an abandoned gas line pipe from wall of trench, causing gas line pipe to fall on worker (Gampietro v Lehrer McGovern Bovis, Inc., 303 AD2d 996, 757 NYS2d 657 [4th Dept. 2003]).
Regulation § 23–4.1(b) providing that “[n]o person shall be suffered or permitted to enter any trench or similar excavation where he [or she] may be exposed to side or bank failure or cave-in unless proper safeguards for his [or her] protection have been provided,” is no more than a reiteration of common-law principles regarding workplace safety and, absent any specific command, cannot serve as the basis for an action under Labor Law § 241(6) (Smith v Robert Marini Builder, Inc., 83 AD3d 1188, 921 NYS2d 371 [3d Dept. 2011]).
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Labor Law Pointers
Editor
David R. Adams
Associate Editor
V. Christopher Potenza
Associate Editor
Steven E. Peiper
Associate Editor
Jennifer A. Ehman
Associate Editor
Marc A. Schulz
Labor Law Team
David R. Adams, Team Leader Steven E. Peiper
[email protected] [email protected]
Dan D. Kohane Cassandra A. Kazukenus
[email protected] [email protected]
Michael F. Perley Jennifer A. Ehman
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V. Christopher Potenza Marc A. Schulz
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