Labor Law Pointers

Volume II, No. 2
Wednesday, December 5, 2012

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

 

From the Editor: 
Here we are with the final edition of 2012 and we are winding up the year with a bang.  This issue has two new topics to add to our newsletter.  Scott Duquin writes on damages issues and will be doing a review of cases and the issues that arise regarding the award of damages.  His offering this month discusses the necessity to preserve any argument that a decision is inconsistent when the verdict is rendered and not wait to bring it up for the first time on appeal.
We have also added Marc Schulz to the lineup.  Marc has prepared a review of the regulations under the NYCRR which make up the basis for all claims under section 241(6).  This month he reviews the first portion of the regs, and will follow up with a review of the remainder of them.  The point of this exercise is to wind up with a chart, which will be included in a future edition, which provides quick reference allowing our subscribers to determine if the regulation claimed violated is in fact considered by the court to be sufficiently specific to support a 241(6) claim.
Welcome to our new subscribers this month, as always we hope that you get something out of our review and analysis of the new cases involving labor law.  As always feel free to pass this on to anyone you think may want to read it and if there is anyone who would like to be added to the distribution list just send me an email and we will add you right away.   All prior issues are available on our website as well in case you recall a prior case analysis you wanted to refer to. 
Have a question about a case, please call. I love the “stump the lawyer” questions.  Nothing makes me happier that when my phone rings and first words I hear are “you are going to love this one”, usually followed by a set of facts that would make the set up in the game of mousetrap looks simple and straight forward.  Deciphering these situations, usually with Steve Peiper and Jennifer Ehman, is the highlight of my day so when please pick up the phone or email and give me your strange set of facts to work through.
That is it for now, Happy Holidays to you and your families from all of us here on the labor law team at Hurwitz & Fine.

David

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

424 Main Street
Suite 1300 Liberty Building
Buffalo, New York 14202
Phone:  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) 849-8900.

Labor Law Section 240(1)
by:    David R. Adams
(716) 849-8916
[email protected]

 

11/7/12            Parker v 205-209 East 57th Street Associates, LLC
Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_07281.htm
Plaintiff, a roofer, was allegedly injured when he fell after stepping through a doorway which was several feet above the level of the lower roof of the building on which he was working.  A metal grate was usually placed on the other side of the doorway, so that after opening the doors workers could walk across the grate to a set of stairs, and then walk down the stairs onto the lower roof.  However, on the date of the incident the grate had been removed, so that door opened onto an empty space between the doorway and the stairs.  
Plaintiff’s contention that Supreme Court erred in denying that branch of his cross-motion which was for summary judgment on the cause of action alleging a violation of § 240(1) is, according to Second Department, without merit.  The record shows that Plaintiff’s injuries did not result from the type of elevation related hazard to which the statute applies.  Although Defendants did not appeal from so much of the order as denied that branch of their motion which was for summary judgment dismissing the cause of action alleging a § 240(1) violation, upon searching the record, Second Department awarded summary judgment to defendants dismissing that cause of action.

PRACTICE POINT:   My thought has always been that when a court awards Summary Judgment to a party who did not even ask for it, the court is sending a message.  The message here is that when an a plaintiff steps into an opening or gap which is a portion of the building the plaintiff is working on and has nothing at all to do with the task he is undertaking that it is simply not the type of elevation related hazard the statute was designed to protect against.  Always take a looks at how the plaintiff was hurt and ask yourself this basic question, is the manner in which the plaintiff was injured the type of risk the statute was designed to prevent.  When, as here, the risk would have been present whether roofing work was being done or not, it is not likely that the court will find that this is a labor law case.

 

11/8/12            Alarcon v UCAN White Plains Housing-Development Fund Corp.
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_07413.htm
Plaintiff was employed by third-party defendant MSI as a laborer/helper at a construction site.  MSI had installed a scaffold structure in one of the empty elevator shafts, to which it attached a series of steps to create a staircase.  The staircase, which did not have any guardrails, was the only means of traveling from floor to floor in the building.
On the day of the accident, Plaintiff quarreled with his MSI supervisor, who told Plaintiff that he did not want to see him on that site anymore.  Plaintiff stopped his work, and proceeded to the fourth floor to gather his street cloths and leave.  Half-way between the third and fourth floor, a piece of fabric from Plaintiff’s pants became stuck on a piece of the scaffold pipe.  This caused Plaintiff to lose his balance and fall three and one-half stories downward, landing on his feet, and losing consciousness.
Plaintiff’s theory of the case, supported by the allegations in his bill of particulars and his deposition testimony, was always that he fell due to the scaffolding stairs’ lack of guardrails.  Thus, Defendants cannot reasonably claim prejudice or surprise.  Moreover, in the context of this case, First Department held that the fact that Plaintiff was in the process of exiting the job site did not remove him from the protections of Labor Law §240(1). 

PRACTICE POINT:   When a worker falls off scaffold stairs that do not have a guardrail and lands 3 ½ stories below, it will always be a labor law case.  The fact that he was arguing and leaving has no bearing on the lack of an appropriate safety device.

 

11/9/12            Olsen v Kozlowski
Appellate Division, Fourth Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_07459.htm
Plaintiff fell from the second floor of a residence that was being constructed by his employer, L&A Builders, Inc.  Supreme Court granted that part of the cross-motion for summary judgment dismissing the complaint against Defendant, which was unopposed.  Fourth Department held Supreme Court properly denied that part of the cross-motion with respect to Defendant but erred in granting that part of Plaintiff’s motion against her.
“A worker, such as the plaintiff, who is injured during the course of his employment, cannot maintain an action to recover damages for personal injuries against the owner of premises where the accident occurred when the owner is also an officer of the corporation that employed the worker.”
Although the Fourth Department held Plaintiff met his initial burden on his motion with respect to Defendant, Defendant submitted evidence raising a triable issue of fact whether she was an officer of L&A at the time of the accident, and thus, whether the action against her is barred by the exclusivity provisions of Workers’ Comp. Law.

PRACTICE POINT:   Just remember that where the property owner is an officer of the corporation which employs the plaintiff, plaintiff may not sue that property owner as it is bared by Comp §29(c).

 

11/14/12          Garcia-Rosales v Bais Rochel Resort
Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_07623.htm
Defendants established their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging violation of Labor Law § 240(1) by showing that Plaintiff’s accident did not occur while he was engaged in a protected activity enumerated in the statute, but rather occurred while performing routine maintenance. 
The Second Department held the correction sheet attached to Plaintiff’s deposition transcript presented feigned issues of fact tailored to avoid the consequences of his earlier deposition testimony and was thus insufficient to raise a triable issue of fact.  The correction sheet contained no statement of reasons for making the corrections.  Further, Plaintiff’s affidavit also presented feigned issues of fact designed to avoid the consequences of his earlier deposition testimony, and was likewise insufficient to raise a triable issue.  Therefore, Supreme Court properly granted that branch of Defendants’ motion for summary judgment dismissing § 240(1) claim and properly denied Plaintiff’s cross-motion on the issue of liability.

PRACTICE POINT:   Where a party has changed the character of their testimony through the use of an errata or correction sheet the court may disregard the changes where it is tailored to avoid the consequences the original testimony.  This is only logical and fair but is an important concept to keep somewhere in the back of your mind in case it ever comes up.

 

11/14/12          Nunez v City of New York
Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_07645.htm

Plaintiff fell from a ladder while working on an asbestos-removal project in a New York City public school.  “To impose liability pursuant to § 240(1), there must be a violation of the statute and that violation must be a proximate cause of plaintiff’s injuries.  Where there is no statutory violation, or where the plaintiff is the sole proximate cause of his or her own injuries, there can be no recovery under Labor Law §240(1).” 
Plaintiff submitted a copy of the transcript of his testimony at a hearing purusuant to General Municipal Law § 50-h.  At that hearing he testified that the 10-foot A frame ladder from which he fell was in an open and locked position at the time of the accident, and that it was positioned on an uneven floor composed of broken concrete and sand or dirt.  He testified that he was standing near the top of the ladder and was leaning forward to apply a plastic covering to the wall when the ladder suddenly moved and he fell forward with the ladder to the floor.  However, plaintiff admitted that he himself had placed the ladder, and that he had no problems using it prior to the accident.  Plaintiff also submitted an affidavit from a co-worker who also averred that the ladder was in a position at the time of the accident.  However, Plaintiff also submitted an incident report and unsworn statements of the co-worker and Plaintiff’s supervisor in which they indicated that at the time of the accident the ladder was in a closed position propped up against the wall. 
Based upon these irreconcilable accounts, Second Department held Plaintiff failed to eliminate triable issues of fact as to whether the ladder provided proper protection, and whether the ladder’s failure to provide proper protection was a proximate cause of the injuries.  Since Plaintiff did not establish his prima facie entitlement to judgment as a matter of law, Second Department held the motion should have been denied without regard to the sufficiency of Defendants’ opposition papers.

PRACTICE POINT:   Here the plaintiff submitted evidence to the court which supported two different versions of how the accident happened and as such created his own question of fact precluding his own Summary Judgment motion.  What I struggle with regarding this decision is that it appears to me that either set of facts often support Summary Judgment for the plaintiff as, open or closed, the ladder failed so provide protection to the plaintiff.  In the fourth department the plaintiff would have likely been awarded Summary Judgment.

 

11/14/12          Gonzalez v Woodbourne Arboretum, Inc.
Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_07628.htm
Decedent was employed to perform landscaping work on property owned by Litwin and property owned by Defendant Woodbourne Arboretum (Arboretum).  An employee of Woodbourne Cultural Nurseries (Nursery) brought an irrigation device known as a “water cannon” to a garage located on the Arboretum’s grounds so that a mechanic employed by Litwin could help him replace the water cannon’s rear axle, which had worn thin, causing the machine to leak.  Two men working on replacing the axle asked decedent to assist them by acting as a spotter while they moved the water cannon, which was approximately 10 to 12 feet tall and weighed more than one ton, off two jack stands in order to get it completely inside the garage for the night.  After the move was completed, the water cannon tipped over and fell on decedent, causing his death.
Plaintiff moved for summary judgment contending the accident fell within the ambit of the statute because the water cannon was a structure undergoing repair which fell because it was hoisted in a dangerous manner.  Defendants countered by arguing dismissal of Plaintiff’s Complaint is warranted as Workers’ Compensation Law barred the action either because decedent was their special employee or because they were Litwin’s alter ego or joint venture.  Defendants also argued alternatively that Plaintiff’s § 240(1) claim should be dismissed because the work being performed on the water cannon constituted routine maintenance which was not covered by the statute. 
Supreme Court denied Plaintiff’s motion for summary judgment on issue of liability and granted Defendants’ motion dismissing the § 240(1) claim.  Second Department affirmed, stating “While the reach of § 240(1) is not limited to work performed on actual construction sites … the task in which an injured employee was engaged must have been performed during ‘the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.’”  Here, the deposition testimony upon which both Plaintiff and Defendants relied in support of their respective motions established that decedent was assisting workers who were engaged in replacing a component of the water cannon which had worn thin, causing the machine, which remained operable, to leak.  The replacement of a worn-out component in an operable piece of machinery constitutes “routine maintenance” rather than “repair” or “alteration”, and thus falls outside the protective scope of § 240(1).
Second Department further found Supreme Court properly determined this action is not barred by Workers’ Compensation Law because the exclusivity of §§ 11 and 29(6) have been applied to shield persons or entities other than the injured Plaintiff’s direct employer from suit, including special employers.  Thus, an injured person who elects to receive Worker’s Comp. benefits from his/her general employer is barred from maintaining a personal injury action against his/her special employer.  According to the court, a significant and weighty factor in determining whether a special employment relationship exists is “who controls and directs the manner, details and ultimate result of the employee’s work.”  The exclusivity of the provisions of Workers’ Comp. Law also extends to entities which are alter egos of, or engaged in a joint venture with, the injured worker’s employer.  However, Defendants failed to make a prima facie showing that decedent was their special employee at the time of his death because they did not submit sufficient evidence to establish that they controlled and directed the manner, details and ultimate result of the work.  Defendants’ evidentiary submissions were further insufficient to establish that Worker’s Comp. Law bars this action because they were the alter egos of decedent’s employer, Litwin or engaged in a joint venture with Litwin . 

PRACTICE POINT:   Replacement of a worn out component is maintenance, not repair, especially where, as here, the machine remains operable.  Tragic case but the court held firm to the law.

 

11/15/12          Lizama v 1801 Univ. Assoc., LLC
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_07764.htm
Plaintiff submitted evidence showing that while standing on the fourth rung of a five-rung A-frame ladder, and using both hands to move a sander back and forth on the walls, he was injured when the ladder suddenly shifted, a “crack” was heard and the ladder collapsed, causing him to fall to the floor.  Plaintiff testified that he had examined the ladder prior to using and found it to be functional.  Immediately following the accident, however, he noted that a stabilizing bracelet on the side of the ladder was broken.  The ladder was the lone piece of safety equipment available to Plaintiff for use in standing the upper part of the walls, Plaintiff’s foreman was not at work on the day of the accident and no definitive instructions were given to Plaintiff on how to perform the sanding work.
Under these facts, the First Department held Plaintiff established his entitlement to judgment as a matter of law on the issue of liability regarding his § 240(1) claim.  Defendants failed to raise a triable issue regarding their contention that Plaintiff was the sole proximate cause of his accident.  Although the record showed that the ladder was inadequate for the nature of the work performed and the gravity-related risks involved, Defendants did not show that another safety device was available but went unused, that Plaintiff failed to heed instructions on how to perform his assigned sanding task, or that the cause of Plaintiff’s injury was unrelated to the ladder’s shifting and ultimate collapse.  

PRACTICE POINT:   Where a plaintiff falls from a ladder when the ladder shifts under him it is a labor law case, at least in the First Department.  (Maybe not in the Second, see Nunez above).

 

11/20/12          Noble v 260-261 Madison Ave., LLC
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_07895.htm
Defendants’ evidence established that triable issues exist whether the 10-foot ladder provided to Plaintiff, under the circumstances (including a measured ceiling height of ten feet 7 inches), constituted an adequate safety device for the air duct removal work he was assigned to perform.  Specifically, the First Department held triable issues exist as to whether (1) the six-foot tall Plaintiff was able to stand on the sixth or seventh rung of the 10-step ladder (as he claimed) and still have the necessary headroom to accomplish the work; (2) whether Plaintiff actually stood lower down on the ladder in view of the apparent ceiling height constraints, such as might allow him ready hand access to the ladder for support; and (3) whether the admittedly stable ladder required another worker to hold it secure if Plaintiff was working from a lower position as claimed, particularly considering that Plaintiff admitted he only fell after the ceiling conduit pipe, onto which he purportedly held for support, broke free, resulting in his fall. 
As there was no evidence Plaintiff was leaning or had to reach to perform his work, the Frist Department held triable issues exist whether Plaintiff actually stood high enough on the ladder as would warrant securing the ladder beneath him and further, assuming arguendo, the ladder was so secured, whether it would have prevented his fall once the conduit pipe broke free from its ceiling support system. 
Defendants’ also raise a factual issue as to whether Plaintiff’s own acts or omissions were the sole cause of his accident; namely, whether an adequate safety device was available (i.e. the 10-foot ladder), but arguably not properly utilized by Plaintiff.  Plaintiff did not state he was unable to support himself by holding onto the ladder, but only stated he found himself holding onto the conduit rod for support.  While a Plaintiff may be granted partial summary judgment based on his own testimony as to how an accident happened, and notwithstanding that he was the sole witness to the accident, such motion may also be denied where, as here, Defendants present evidence that raises factual issues whether the accident occurred in the manner Plaintiff claimed, and whether he was the sole cause of his accident.  

PRACTICE POINT:   Look at the facts of the case, look at the site of the accident, look at the mechanisms involved including all ladders, scaffolds, lifts etc. to make sure the accident could happen as described by the plaintiff, especially where the accident is not witnesses.  I would also recommend retaining an expert in those cases where an accident is un-witnessed to see if the plaintiff’s version of the accident is plausible.

 

12/21/12          Williams v Town of Pittstown
Appellate Division, Third Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_07943.htm
Defendant’s highway superintendent contacted Plaintiff to repair defendant’s Grandall, a machine used to clean ditches.  To get to the hydraulic pump, Plaintiff needed to remove the counterweight, which weighs 6,000 pounds.  After the pump was repaired, Plaintiff asked highway superintendent for two employees and some equipment to assist him in putting the counterweight back on the Grandall.  Plaintiff told one employee to lift the counterweight into place with a forklift, had the other employee position a bucket loader against the counterweight to keep it in place, and Plaintiff went underneath the Grandall to line up bolt holes in the Grandall and counterweight.  While the forklift was backing away after setting the counterweight on the Grandall, the counterweight fell to the ground, crushing Plaintiff’s foot and requiring a below-the-knee amputation of his leg.
The parties do not dispute that Plaintiff was repairing a structure when he was injured by the counterweight falling approximately 53 inches to the ground, which renders Labor Law § 240(1) applicable.  Rather, Plaintiff submitted proof that Defendant did not provide any pulleys, hoists, braces or ropes that would be appropriate safety devices to secure a heavy object, such as the counterweight, while it was being lifted.  Even if the forklift and bucket loader can be considered safety devices, the Third Department held they were inadequate because they failed to perform the function of preventing the counterweight from falling.  According to the Third Department, the counterweight was unsecured due to the lack of a safety device and fell off the forklift because it was unsecured, proximately causing Plaintiff’s injuries and a property owner is liable under § 240(1) even if it exercised no control or supervision over a subcontractor performing a job on the property. 
Despite Plaintiff being responsible for deciding how to move the counterweight, the Third Department held that Defendant was not relieved of liability because Plaintiff chose a method he had been taught and had safely used more than ten times in the past, such that his decision simply constituted comparative fault that is not a defense under the statute. 
Further, Defendant did not establish the recalcitrant worker defense, which requires proof that a safety device was available and visible at the work site and the employee deliberately refused to use it.  Although Defendant’s expert opined that Plaintiff should have at least loosely attached the counterweight to the Grandall with four securing bolts before removing the forklift, those bolts were not safety devices but were part of the Grandall.  Third Department held Plaintiff did not refuse to use those bolts; he planned to install them once the forklift was out of the way and his failure to install them while the forklift was still holding the counterweight was not recalcitrance, but perhaps poor judgment that would be applicable to the unavailable defense of comparative negligence. 
Defendant further contends that Plaintiff should have attached eyebolts to the top of the Grandall and lifted it with a chain.  While Defendant had a heavy chain on its property, the evidence is unclear as to whether Defendant had eyebolts of the proper size.  Plaintiff considered that method of lifting, but ruled it out because the bolt holes were rusty.  One of Defendant’s employees testified that after Plaintiff’s accident, he put the counterweight back on the Grandall using the chain and eyebolts, but he had to spend an hour cleaning and repairing the bolt holes so they could accept the eyebolts.  Although in hindsight it may have been better for Plaintiff to repair the bolt holes and use a chain to lift the counterweight, Defendant did not demonstrate that Plaintiff was a recalcitrant worker by choosing to use an alternative method rather than the eyebolt method that was not immediately available at the time he was performing the task that caused his injury. 

PRACTICE POINT:   Remember that almost anything made of component parts is a structure under the labor law.  This case also reminds us that to be considered an available safety device it must be both readily available and in useable condition.

 

12/21/12          Landon v Austin
Appellate Division, Third Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_07930.htm
Plaintiff was hired to remove shingles from, and install a new vapor barrier and underlayment on, the roof of a single-family residence owned by Defendant Duane Austin.  While Plaintiff was in the process of applying the vapor barrier, he fell from the edge of the roof and sustained various injuries to his right leg.  Plaintiff filed an amended complaint naming Austin’s corporation, Defendant Austin Construction, Inc. (ACI).  ACI moved for summary judgment dismissing the amended complaint against it, contending it was neither a contractor nor an agent within the meaning of the Labor Law. 
Although the term “contractor” is not defined in Labor Law § 240(1), “[a]n entity is a contractor within the meaning of [the statute] if it had the power to enforce safety standards and chose responsible subcontractors.  Additionally, and as relevant here, “a party will be deemed a contractor under section 240(1) if it had the right to exercise control over the work, [regardless of] whether it actually exercised that right.”  Therefore, to demonstrate its entitlement to summary judgment as a matter of law, ACI needed to establish that it had no authority to enforce any applicable safety standards, did not hired or pay Plaintiff, did not supervise or control Plaintiff’s work and did not provide any equipment or materials for the project.
The record reveals that Austin hired and paid Plaintiff on the day in question and further, possessed the authority to both enforce safety standards and supervise or control Plaintiff’s work.  The Third Department, however, held it’s unclear whether, in doing so, Austin was acting in his individual or corporate capacity. 
Plaintiff acknowledged that he had worked for both Austin (individually) and ACI in the past and offered conflicting testimony as to whether he was working for Austin or ACI on the day he was injured.  Although Plaintiff testified that Austin usually paid him in cash, he also recalled being paid with a corporate check on at least one occasion.  All the tools and equipment on site belonged to ACI and, while some of the materials on site were paid for by Austin personally, the shingles and underlayment, including the vapor barrier that Plaintiff was installing at the time he fell, were provided by ACI.  Finally, all of the remaining workers on site that day were either employees of ACI or had been hired by ACI through a temporary employment agency and worked exclusively for ACI. 
The Third Department held such proof raises question of fact as to ACI’s status as a contractor (or agent) on the day in question, thereby precluding an award of summary judgment in favor of ACI with respect to Plaintiff’s Labor Law § 240(1) claim.

PRACTICE POINT:   The homeowner exclusion is available only to the homeowner individually and not to the corporation he owns.  I would have been interested in knowing how the plaintiff was paid for the work he did up until the time of the fall, that may have been critical in this matter.

 

12/28/12          Vetrano v Kokolakis, et al.  
Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_08113.htm              
Plaintiff was working as an ironworker at a construction site and walking along the top of a steel beam.  He wore a safety harness with a hook that could be attached to a safety line.  At the first location where he worked, he attached himself to a safety line.  However, as he walked along the beam to a second location, about 20 feet away, no safety lines were available.  There was no safety netting below.  Plaintiff slipped on what he believed was ice on the beam, fell approximately 12 to 13 feet and sustained    injuries. 
The Second Department held plaintiff demonstrated prima facie entitlement to judgment as a matter of law on his § 240(1) claim because Plaintiff’s deposition testimony established that he had not been provided with appropriate safety devices that could have prevented his fall and that the lack of such devices was the proximate cause of the accident.  Plaintiff’s unsigned but certified deposition transcript was admissible since, in submitting the transcript in support of his own motion, the court held Plaintiff essentially adopted it as accurate.  Further, the deposition transcript of Kokolakis’s superintendent was also admissible even though it was unsigned as it was certified and Kokolakis did not challenge its accuracy in its opposing papers.

PRACTICE POINT:   Not surprisingly when plaintiff falls from a beam and his harness is not attached as there is no safety line available to be tied into, it is a labor law case. 

Labor Law Section 241(6)

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

11/29/12          Landers v. 1345 Leashold LLC
Appellate Division, First Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08237.htm
Plaintiff was allegedly injured when, while working on the renovation of office space in a building, the door of a freight elevator fell on his head.  The issue on this appeal was the application of 12 NYCRR 23-1.8(c)(1), which requires safety hats where there is a danger of being struck by falling objects.  In reversing the trial court, the First Department held that this provision was inapplicable in light of plaintiff’s own testimony that the site was free of falling object hazards.  The court found that plaintiff’s attorney’s assertion that a hard hat should have been provided was insufficient to raise a question of fact.

Take Away:  Remember that affidavit testimony that is obviously prepared in support of ongoing litigation that directly contradicts deposition testimony previously given by the same witness, without any explanation account for the disparity creates only a feigned issue of fact, and is insufficient to defeat a properly supported motion for summary judgment.

11/27/12          Raffa v. City of New York
Appellate Division, First Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08071.htm
Plaintiff slipped while going from his car to a trailer.  It is unclear from the decision where exactly on the worksite this occurred.
Nevertheless, the court held that plaintiff's Labor Law § 241(6) claim was properly dismissed.  In the court’s opinion, the open, unpaved area where plaintiff was walking when he fell was not “a floor, passageway, walkway, scaffold, platform or other elevated working surface,” within the purview of 12 NYCRR 23–1.7(d).  Nor was the area a floor, platform or similar area where people “work or pass,” and no “tripping hazard” was alleged, under 12 NYCRR 23–1.7(e)(2).

11/14/12          Garcia-Rosales v. Bais Rochel Resort
Appellate Division, Second Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07623.htm
In a decision very short on facts, the court held that defendants established, prima facie, that the work being performed by the plaintiff at the time of the accident was not connected to construction, excavation, or demolition work, as defined in the Industrial Code (see 12 NYCRR 23–1.4[b][13], [16], [19] ).  Specifically, routine maintenance is not within the ambit of Labor Law § 241(6).

 

11/07/12          Parker v. 205-209 East 57th Street Associates
Appellate Division, Second Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07281.htm
Plaintiff, a roofer, was allegedly injured when he fell after stepping through a doorway which was several feet above the level of the lower roof of the building on which he was working.  A metal grate was usually placed on the other side of the doorway, so that after opening the door workers could walk across the gate to a set of stairs, and then walk down the stairs onto the lower roof. 
Plaintiff’s 241(6) claim was premised on a violation of 12 NYCRR 23-1.7(b)(1).  This provision requires that “[e]very hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed in compliance with this Part (rule).”  In considering these facts, the court held that the height differential between the edge of the doorway and the lower level of the roof did not constitute a hazardous opening within the meaning of this provision.

Take Away:  Although 12 NYCRR § 23–1.7(b) does not define “hazardous opening,” the term undisputedly applies to openings through which a person could fall.  The opening at least must be “of significant size and depth” to qualify as “hazardous.”  Thus, an unshored, unbraced excavation 6–7 feet deep qualified as hazardous, while a roof drainpipe only 7–10 inches deep and hand-holes for wires and ducts only eight inches deep and securely covered when not in use by electricians did not qualify.  In addition, the step or fall must be into an “opening” in the surface where an employee is walking or working, not off the edge.  Here, it appears that plaintiff did not fall into a hole, but instead off an edge.

 

Labor Law Section 200 and Common Law Negligence

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


The post-Turkey day food coma must have slowed down the appellate justices, as there is not much to report in the way of Labor Law 200/ Common Law negligence decisions this month.  Williams v. Town of Pittstown is a bit of a diversion from the standard fare 200 decisions however, as the plaintiff, a subcontractor for the town, usurped some town employees to help in his repair of some heavy machinery.  The town argued that it should not be liable under Labor Law 200 because its employees had become “special employees” of the plaintiff and were no longer under the town’s supervision and control.  Interesting argument, but the Third Department found an issue of fact and denied summary judgment. 
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. 

 

11/27/2012      Raffa v. City of New York, 2012 N.Y. Slip Op. 08071
Appellate Division, First Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08071.htm
Plaintiff slipped while going from his car to a trailer.  He had testified that during the two days immediately before his accident, he had lodged multiple complaints to the foreman and superintendents about snow and/or ice covering that area. Further, there was evidence presented of other prior similar complaints and falls in that area.  Because the Labor Law § 200 and common-law negligence claims are based on a dangerous condition on the site, not on the methods or materials used in the work, the only issue is whether defendant City had notice of the condition, not whether it exercised supervisory control over the manner of performance of plaintiff's work.  Viewing all of the evidence in a light most favorable to plaintiff, and drawing all reasonable inferences in his favor, as is required at this procedural posture, the First Department reversed the trial court and held that a question of fact exists as to whether the City had actual or constructive notice of the icy condition that caused plaintiff's injury. 

 

11/21/2012      Williams v. Town of Pittstown, 2012 N.Y. Slip Op. 07943
Appellate Division, Third Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07943.htm
The highway superintendent of defendant Town of Pittstown hired the plaintiff, a self-employed hydraulics specialist, to repair defendant's Gradall machine used to clean ditches. To get to the hydraulic pump, plaintiff needed to remove the counterweight, which weighs 6,000 pounds.  After the pump was repaired, plaintiff asked the highway superintendent for two employees and some equipment to assist him in putting the counterweight back on the machine. Plaintiff told one employee to lift the counterweight into place with a forklift, had the other employee position a bucket loader against the counterweight to keep it in place, and plaintiff went underneath the machine to line up bolt holes on the counterweight. While the forklift was backing away, the counterweight fell to the ground, crushing plaintiff's foot, requiring a below-the-knee amputation of his leg. 
Defendant town contends that it lacked the authority to supervise or control plaintiff's work and that its employees became “special employees” of plaintiff during this project. The Third Department held that the determination of special employee status is generally a question of fact and although the two employees took all of their directions for this project from plaintiff and were instructed by the highway superintendent to treat plaintiff as their boss for the project, they were assigned to the project for one day, were paid by defendant, used defendant's equipment and did not consider themselves plaintiff's employees. Considering this evidence, defendant did not show as a matter of law that plaintiff had exclusive control and direction of the manner, details and ultimate results of the work by defendant's two employees.  As such, the Appellate Division affirmed the denial defendant's cross motion seeking dismissal of the common-law negligence and Labor Law § 200 causes of action. 

That’s it for Labor Law 200 stuff(ing) for November, although that “special employee” discussion was a little extra gravy on top.

 

Indemnity Issues in Labor Law

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

11/08/12          Alarcon v UCAN White Plains Hous. Dev. Fund Corp.
Appellate Division, First Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07413.htm
Plaintiff allegedly sustained injury in the course of his employment with MSI.  At the time of the incident, MSI was performing work as the masonry contractor at a jobsite owned by UCAN.  Thereafter, plaintiff commenced the instant lawsuit seeking recovery against UCAN under Labor Law § 240(1) & (2) and/or Labor Law § 241(6).
In turn, UCAN commenced a third-party action seeking contractual indemnification against MSI.  MSI opposed on the ground that the indemnity provision at issue was in violation of General Obligations Law § 5-322.1.  In affirming the trial court’s decision, the First Department noted that the disputed clause at issue had “saving” language which indicated that the provision should be read “to be limited only to the extent necessary to comply with…law.” 
Moreover, the Court also noted that even if the indemnity clause did not contain “saving” language UCAN would still be entitled to summary judgment.  This is because, regardless of the anticipated scope of the provision, there was no evidence submitted which established any negligence on UCAN.  As noted by the Court, no one from UCAN was at the site at the time of the incident.  Likewise, no one from UCAN supervised, directed or controlled plaintiff’s activities.

 

11/20/12          Anton v West Manor Const. Corp.
Appellate Division, First Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07871.htm
Plaintiff was employed by Tiegre.  During the course of his employment, plaintiff was struck by a falling cinderblock.  As a result of his injuries, plaintiff commenced suit against West Manor Construction Corp., who, in turn, commenced a third-party action against Tiegre. 
West Manor sought both common-law and contractual indemnity against Tiegre.  The former, common law indemnity, claim was dismissed by application of Workers’ Compensation Law § 11.  In so holding, the Court noted that daily headaches and frustrating loss of focus did not rise to the level of a grave injury.
With regard to the contractual indemnity claim, the Court likewise affirmed dismissal of West Manor’s claims against Tiegre.  Although not explicitly stated, it appears as though the contract only provided West Manor protection from losses that were occasioned out of Tiegre’s negligence.  Here, although the plaintiff was in an area that he was instructed not to use, his “violation” of the workplace rule only furnished the occasions for the occurrence.  It was not, however, the proximate cause of the loss.  As such, the indemnity clause at issue was not triggered.

 

11/27/12          Cahn v Ward Trucking, Inc.
Appellate Division, First Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08061.htm
Plaintiff was injured when he was struck by barrels that fell off of a hand truck. At the time of the incident, plaintiff was at work in the lobby of a building owned by his employer, 450 Park.  Plaintiff commenced the above action against the delivery company and trucking company that were in the process of unloading the barrels at the time of the incident.  Those entities, in turn, commenced an action against Chemtreat as the vendor/packer of the barrels.
Chemtreat ultimately moved for summary judgment dismissing the common law and contractual indemnity claims that had been asserted against it.  With regard to the common law indemnity claim, Chemtreat noted that there was no proof offered that it was “actively at fault” for causing the incident.  Thus, under McCarthy v Turner Construction, Inc. there was no basis for a common law indemnity claim.
The contractual indemnity claim was dismissed where Chemtreat established that the provision in question was inapplicable to the facts of this case.  Specifically, the Chemtreat indemnity agreement only triggered where the loss arose from the use Chemtreat’s patented devices, processes, materials and equipment.  In the instant case, barrels falling from a hand truck during delivery did not fit within any of the enumerated areas giving rise to a valid indemnity claim.   

 

DAMAGES ISSUES

by: Scott Michael Duquin
716-849-8949
[email protected]

            The thing that really matters in this business is what you have to pay. Welcome to my new column on damages in Labor Law Pointers. We will be discussing damages, reviewing recent decisions, and looking for strategies that will let you folks keep more of your premium dollars.
In this issue we see how New York Civil Pattern Jury Instruction PJI 2:282 Damages-Personal Injury-Aggravation of Pre-existing Injury, can work to the advantage of the defense.    Pattern charge PJI 2:282 allows a jury to compensate a plaintiff for the aggravation of injury that existed prior to accident, without being unreasonably penal to the defense, as the charge instructs the jury to award compensation only for the actual injury caused by the accident/incident.

The plaintiff can recover only for damage caused by aggravation of the preexisting condition, not the condition itself.  The plaintiff should only be compensated only to the extent that you find (his/her) condition was made worse by the defendant’s negligence.

We now review a First Department decision concerning the adequacy of damages the jury awarded. This is an interesting case for damages the jury did not award.

 

11/15/12          Mescall v. Structure-Tone, Inc.
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_07755.htm
The plaintiff was an iron worker who had previously been granted summary judgment on his Labor Law 240(1) claim.   Plaintiff was injured, when a crane that was lifting a 25’ x 25’ metal screen had a hiccup, and well you know, the screen was dropped, and it just happened to hit the plaintiff on its way down.  49 AD3d 339, 852 NYS 763 (1st Dept. 2008). Prior to this case, the plaintiff had brought four previous work-related lawsuits claiming many of the same injuries claimed herein.
At the damages trial, the defense successfully argued the plaintiff should only be compensated for his damages as related to the accident of the falling screen.  Plaintiff claimed injuries for fractured ribs, fractured clavicle and injuries to his vertebra.  The defense strategy was to show the jury that the plaintiff had pre-existing injuries. The defense called plaintiff’s treating doctor who testified that six months prior to the accident, he recommended surgery on the plaintiff’s cervical spine.  The defense also established that the bulk of plaintiff’s injuries related to the falling screen were resolved by the time of trial. Further, that plaintiff’s failure to return to work was not because of physical disability caused by the accident; but, was the result of plaintiff’s voluntary choice. 
After deliberations, the jury did not make an award for future pain and suffering, future lost earnings or future loss of pension benefits. The jury awarded the plaintiff  $124,000 in past medicals (stipulated), $200,000 for future medicals,  $90,000 in past lost earnings; and made NO AWARD for future pain and suffering, for future lost earnings or for loss of future pension benefits. 
The First Department determined that the defense has presented sufficient evidence at trial for the jury to determine that they should not make an award for future lost earnings; and, “[t]here was also sufficient evidence from which the jury could have concluded that plaintiff’s failure to return to work was not as a result of this accident but by choice.”
Notwithstanding the First Department’s affirmance, there is some inconsistency in the jury’s verdict.  They made an award for future medical expenses, but the jury did not give plaintiff any damages for his future pain and suffering.  So the jury determined the plaintiff will need medical treatment/s in the future for injuries he sustained as the result of the falling screen; but, that he should not be awarded any money for tomorrow’s pain. The decision is absent a discussion of any evidence that would support the jury’s award for future medicals, but not for future pain.    However, the First Department never had to solve this conundrum, as the plaintiff failed to preserve the issue.  Plaintiff’s counsel needed to raise the issue of an inconsistent jury award before the jury was discharged.
Practice Tip:  “A party is required to preserve a claim that a verdict is inconsistent. In order to serve as a predicate for appeal, the issue must be raised before discharge of the jury so that the trial court may take corrective action to cure the inconsistency, including resubmitting the matter to the jury”.

241(6) REGULATIONS; SPECIFIC OR GENERAL

by: Marc A. Schulz
(716) 849-8900
[email protected]

            A defendant seeking summary judgment dismissing a Labor Law § 241(6) claim must demonstrate that it did not violate the Industrial Code regulations on which the claim is based, that the cited regulations are not applicable to the facts of the case or that the alleged violation was not a proximate cause of the accident.  Mugavero v Windows by Hart, Inc., 69 AD3d 694, 894 NYS2d 448 (2d Dept. 2010).
In most instances, the interpretation of rules promulgated by the Commissioner of Labor (formerly the Industrial Board) presents a question of law for the court.  Morris v Pavarini Const., 9 NY3d 47, 842 NYS2d 759 (2007).  In Ross v Curtis-Palmer Hydro-Electric Co., the Court of Appeals held that a violation of an administrative regulation is a threshold to liability under Labor Law § 241(6).  81 NY2d 494, 601 NYS2d 49 (1993).
The Court of Appeals further held in Ross that an action may be maintained under §241(6) only where the regulation plaintiff claims was violated mandates compliance with “concrete specifications”; regulations which only establish “general safety standards” by invoking general descriptive terms are not a legally sufficient predicate for an action.  The Ross Court observed that general terms such as “adequate,” “effective,” “proper,” “safe,” and “suitable” are used frequently in the Industrial Code and it would “seriously distort” the scheme for liability to impose vicarious liability upon a non-supervising owner or general contractor based on a broad, non-specific standard.
The Court of Appeals in Misicki v Caradonna held that a breach of regulations that impose an affirmative duty to correct or repair unsafe conditions may be the subject of a claim under § 241(6).  12 NY3d 511, 882 NYS2d 375 (2009).  The Misicki Court also stated that specific provisions within a particular regulation may be sufficient to support of § 241(6) cause of action even if other provisions within the same regulation contain on general standards.  Id.
In an action based on § 241(6), the trial court must determine, as a threshold matter, whether the administrative regulation cited by plaintiff satisfy the criteria established in Ross.  Additionally, the court must determine whether the regulation is applicable to the facts of the case.  In this regard, Industrial Code regulations should be sensibly interpreted and applied to effectuate their purpose of protecting construction laborers against hazards in the workplace.  St. Louis v North Elba, 16 NY3d 411, 923 NYS2d 391 (2011).  Accordingly, the preferred rule is to take into consideration the function of a piece of equipment identified in a regulation, and not merely the name, when determining the applicability of a regulation.  Id.
The following is a list of cases discussing the specificity and/or applicability of various regulations since the Court of Appeals decision in Ross.  It should be noted that when dealing with a regulation contained in Part 23, consult Nostrom v A.W. Chesterton Co., 15 NY3d 502, 914 NYS2d 725 (2010).
12 NYCRR part 3 – Tree or Brush Cutting, Trimming or Removal Around or Near Power Lines or Power Facilities – Regulation regarding safety measures to be employed in trimming trees, does not apply to persons … trimming trees on behalf of a public service corporation.  Mamo v Rochester Gas & Electric Corp., 209 AD2d 948, 619 NYS2d 426 (4th Dept. 1994) (plaintiff's reference to regulatory section containing regulations regarding use of adequate scaffolding, safety belts, life lines, life nets, and aerial baskets in general context of construction and maintenance did not meet requirement of allegation of specific regulatory violation in action brought under section of Labor Law pertaining to workplace safety).

            12 NYCRR § 12-1.4 – Prevention of air contamination – (a) General.  All operations or processes which produce air contaminants shall be so conducted that the generation, release or dissemination of such air contaminants is kept at the lowest practicable level in compliance with this Part (rule) using proper control or protective procedures and equipment.  All equipment used to effect compliance with this Part (rule) shall be maintained in good condition and in accordance with the requirements of the Labor Law and of the Industrial Code.  (b) Responsibility of employers.  (1) Every employer shall effect compliance with the provisions of this Part (rule) relating to the prevention and removal of air contaminants, the storage and use of flammable liquids and the provision, installation, operation and maintenance of control or protective equipment.  (2) Every employer shall instruct his employees as to the hazards of their work, the use of the control or protective equipment and their responsibility for complying with the provisions of this Part (rule).  (3) No employer shall suffer or permit an employee to work in a room in which there exist dangerous air contaminants in a work atmosphere.  (4) No employer shall suffer or permit dangerous air contaminants to accumulate or remain in any place or area subject to the provisions of this Part (rule).  (c) Responsibility of employees. Every employee shall use the control and protective equipment provided for his protection and shall comply with all provisions of this Part (rule) relating to his personal conduct.
           
Regulation § 12-1.4(a) requiring air contaminants be kept at the lowest practicable level, and § 12-1.4(b)(1) and (b)(2), which requires employers to comply with rules regarding contaminants and to give employee safety instructions, are not specific to support § 241(6) claim.  Piazza v Frank L. Ciminelli Const. Co., Inc., 2 AD3d 1345, 770 NYS2d 504 (4th Dept. 2003) (although construction work being performed at apartment in which flooring was being replaced, laborer's work in removing trash from vacant apartment not part of that construction as was required to come under Labor Law provision imposing certain safety requirements on contractors and owners involved in construction, excavation, or demolition work).

Regulations § 12-1.4(3) and § 12-1.4(4) cannot serve as predicates for liability under § 241(6).  Nostrom v A.W. Chesterton Co, supra (two owners of energy facilities at which decedent worked and general contractor for two of the projects were not vicariously liable for decedent's injuries under § 241(6) where liability predicated solely upon violations of regulations pertaining to the control of air contaminants in the workplace).

            12 NYCRR § 12-1.5(a) – Personal protective equipment; Personal respiratory protective equipment – (a) Personal respiratory protective equipment.  (1) Use.  Personal respiratory protective equipment shall not be used in lieu of other control methods, except for protection of employees in emergencies and in the repair, maintenance or adjustment of equipment or processes, or upon specific approval by the board.  (2) Approval.  Personal respiratory protective equipment shall be of a type approved by the board for the particular class of substance or substances constituting the air contaminant.  Note: A list of approved respiratory protective equipment may be secured from the board.  (3) Maintenance. Personal respiratory protective equipment shall be stored in air-tight containers or cabinets or in an uncontaminated area.  Such equipment shall be cleaned, serviced and repaired to maintain it in effective working condition and it shall be sterilized before use by any person other than the last wearer.  (b) Goggles, masks and shields.  All employees exposed to air contaminants tending to injure or irritate the eyes shall be provided with and shall wear either safety goggles, close-fitting chemical goggles or an effective face mask or shield.  An employee requiring prescription lenses in the normal performance of his work shall be supplied with prescription goggles or with goggles designed to fit over his regular spectacles.  (c) Protective clothing.  All employees exposed to air contaminants which tend to cause skin irritation or skin diseases, or which can be absorbed through the skin in amounts tending to injure the health, shall be provided with appropriate clean, protective clothing, such as coveralls, coats, headgear, gloves, sleeves or aprons as needed or where suitable.  (d) Emergency flushing facilities. Emergency showers or other facilities for flushing the skin and body members shall be provided within 50 feet of the working position where employees may be exposed to sudden and severe concentrations of corrosive air contaminants.
Regulation § 12-1.5(a)(1), which limits use of personal respiratory protective equipment, and (a)(2), requiring use of board-approved personal respiratory protective equipment, are not sufficiently specific to support § 241(6) cause of action.  Piazza v Frank L. Ciminelli Const. Co., supra.
           
12 NYCRR § 12-1.6 – Personal protective equipment; Personal respiratory protective equipment – (a) General control methods.  One or more of the following methods shall be used to prevent, remove or control dangerous air contaminants:  (1) Substitution of a material or a method which does not produce dangerous air contaminants.  (2) Local exhaust ventilation conforming to the requirements of Industrial Code Part (Rule No.) 18.  (3) Dilution ventilation.  (4) Application of water or other wetting agent.  (5) Enclosure or isolation.  (6) Other methods approved by the board.  (b) Exhaust systems.  Every exhaust system required by this Part (rule) shall be constructed, installed, operated and maintained in compliance with the provisions of Industrial Code Part (Rule No.) 18 relating to exhaust systems.  Note: The discharge of effluents from sources of air contamination to the outer air shall be made in accordance with article 19, titles 1, 3, 5 and 7 and article 71, title 21 of the Environmental Conservation Law and with any rules or regulations promulgated thereunder.  (c) Isolation or segregation of operations. All processes or operations releasing or disseminating dangerous air contaminants shall be isolated, enclosed or otherwise segregated insofar as practicable.  (d) Separation of different processes creating a hazard.  Where processes generate different air contaminants which could, if intermixed, result in a fire or explosion hazard, such contaminants shall be exhausted by separate systems so as to eliminate such possibility.
Regulation § 12-1.6(a) cannot serve as a predicate for liability under § 241(6).  Nostrom v A.W. Chesteron Co., supra; see also Piazza v Frank L. Ciminelli Const. Co., supra.

            12 NYCRR § 12-1.9 – Entering confined spaces – (a) General.  (1) Confined spaces where dangerous air contaminants have been present, are present or could be introduced from potential sources shall not be entered by any person for any reason until the atmosphere of such confined spaces has been tested and found free of dangerous air contaminants.  Any such confined space shall be continuously maintained free of dangerous air contaminants during any period of occupancy.  If, however, due to emergency conditions any such confined space cannot be cleared of dangerous air contaminants by mechanical ventilation or equivalent means, any person entering such confined space shall be provided with and shall use an approved air line respirator, approved hose mask or approved self-contained breathing apparatus.  (2) Whenever a confined space is to be entered, a person who has been designated as a safety monitor shall function as required by this Part (rule).  A confined space shall not be entered unless there is at least one other person in addition to the required safety monitor ready to render assistance in an emergency when alerted. Such additional person shall be located within 100 feet unobstructed walking distance from and not more than one floor above or one floor below the access opening of such confined space.  The assigned duties of such additional person shall be such that they will not prevent him from responding immediately to an emergency when alerted.  (b) Preparation for entering a confined space. Prior to entering any confined space, the following steps shall be taken to insure the safety of the person entering: (1) Any contents shall be removed, emptied or drained from the confined space insofar as is possible and the interior shall be purged by water or other equivalent means.  (2) The person entering the confined space or a designated qualified person shall lock out the circuit breakers or switches of all electrically operated equipment such as agitator drives, pumps and similar equipment which is connected to or affects the confined space and could affect the health and safety of any person in the confined space.  The keys for such locks shall be retained by the person entering the confined space.  (3) All manhole and clean-out covers shall be removed and the openings maintained clear of any obstructions.  (4) All input lines which discharge into the confined space shall be disconnected and capped or provided with line blank flanges.  The use of a single in-line valve shut-off is prohibited as the sole means of isolating the confined space from any input line.  However, the use of a double in-line valving arrangement with a vent in between the two valves is acceptable provided that dangerous air contaminants are not created by such venting.  (5) Tests in the confined space for the presence of dangerous air contaminants or lack of sufficient oxygen, or both, where the threat of each condition exists shall be made by a designated person who is qualified to conduct such tests by training and experience.  Such tests shall be performed using calibrated equipment of a type suitable for the air contaminants involved.  If such tests indicate that air contaminants in excess of the concentrations listed in subpart 12-3 of this Part (rule) are present in the confined space, the space shall be purged by mechanical ventilation until a subsequent test indicates that the air contaminant concentration is in compliance with subpart 12-3 of this Part (rule).  If more than one type of air contaminant is known to be present or could be introduced in the confined space, additional tests shall be made for each contaminant.  A confined space containing air contaminants which may develop an explosion hazard shall be purged by mechanical ventilation until tests indicate that the concentration of air contaminants in the confined space is not more than 25 percent of the lower explosive level of such air contaminants and that there is sufficient oxygen available in the confined space.  In lieu of purging by mechanical ventilation, an inert atmosphere may be maintained in the confined space, provided that control devices are used to insure that combustion or ignition of material, including gases, cannot occur.  Whenever an inert atmosphere is maintained in a confined space, every occupant shall be equipped with an approved self-contained breathing apparatus, an approved air line respirator or an approved hose mask.  Every occupant shall leave the confined space immediately in the event of an interruption of the air supply to the breathing apparatus.  The inert atmosphere shall be prevented from contaminating all other work areas, including the area of the access opening to the confined space and adjacent areas.  Maintenance of the inert atmosphere shall in no way interfere with or prevent the emergency escape of an occupant from such a confined space.  (6) The mechanical ventilation system shall be so designed that the contaminants or contaminated air is transported to some safe location, without recirculation, and the replacement entry air does not contain dangerous air contaminants, but does contain sufficient oxygen.  The provisions of this paragraph shall also apply to the exhausting of an inert atmosphere.  (7) Any person entering a confined space shall be provided with and shall use the following additional safety equipment: (i) Where the least dimension of any access opening to a confined space is less than 24 inches, approved wrist straps or approved noose-type wristlets shall be worn.  Where the least dimension of such access opening is greater than 24 inches, either an approved life belt, approved safety harness, approved wrist straps or approved noose-type wristlets shall be worn.  (ii) A lifeline, as specified by the provisions of Industrial Code Part (Rule No.) 23, shall be attached to such life belt, approved safety harness, approved wrist straps or approved noose-type wristlets with the other end securely anchored outside the confined space.  Exception: Where such a lifeline attached to approved wrist straps or approved noose-type wristlets interferes with the performance of the work duties of the person occupying the confined space, such lifeline complete with safety snaps may be disconnected from the wrist straps or wristlets provided the lifeline safety snap remains within three feet of the person in the confined space for quick attachment to the wrist straps or wristlets.  (iii) A safe means of ingress and egress, such as a portable ladder, provided such means will not obstruct the access opening.  (iv) An explosion-proof battery-operated portable light in good working order.  (v) Non-sparking striking, chipping, hammering or cutting tools and equipment where the confined space may contain explosive or flammable air contaminants.  (c) Safety monitors.  (1) A person designated as a safety monitor shall be stationed at the access opening of any confined space while such space is occupied for any reason.  The safety monitor shall maintain visual contact with every occupant in the confined space where the construction of the confined space permits, or shall have continuous knowledge of the activities and well-being of every occupant of the confined space via verbal communication or other positive means at all times.  Such safety monitor may assist an occupant of a confined space in such light duties as handling tools or supplies or removing containers of refuse or debris provided that these tasks do not interfere with his primary duty as a safety monitor.  (2) The safety monitor shall be an alert, competent person, fully capable of quickly summoning the assistance of a person or rescue team for the administration of emergency first aid treatment if required.  (3) The safety monitor must be physically able to assist such summoned person or rescue team in the extrication of an occupant from a confined space under emergency conditions.  (4) The following emergency equipment shall be available to the safety monitor or rescue personnel for use if required.  (i) Approved air line respirator, approved hose mask or approved self-contained breathing apparatus.  (ii) Explosion-proof battery-operated portable light in good working order.  (iii) Safety equipment as specified in subpart 12-1, section 12-1.9, subdivision (b), paragraph (7), subparagraphs (i) and (ii) of this Part (rule).  (5) Such emergency equipment shall be located at the access opening of the confined space or not more than 15 feet from such opening.  (d) Operations requiring continuous testing.  If the nature of the work to be performed produces or has the potential to produce dangerous air contaminants as specified in this Part (rule), continuous testing shall be performed.  If such tests indicate evidence of dangerous air contaminants exceeding the concentrations listed in subpart 12-3 of this Part (rule) or in quantities greater than 25 percent of the lower explosive level, the occupants shall be ordered to evacuate the confined space immediately.  (e) External alarm signal. Outside of every occupied confined space there shall be an audible alarm signal device located within 15 feet of the access opening. Such device may be of the portable type and shall be maintained in good working order.  When actuated, such audible alarm shall be louder than the general background noise level and should be capable of being heard clearly by any person located within 100 feet of the access opening.  In case of an emergency in a confined space, the safety monitor shall immediately actuate the alarm signal.  In no case shall the safety monitor or other rescue personnel enter the confined space without first actuating the alarm signal and, secondly, putting on his personal protective equipment.  (f) Illumination.  There shall be installed and maintained an independent substitute emergency lighting system in addition to the principal lighting system in any area where a confined space is located and which is entered frequently for cleaning and maintenance purposes.  Such substitute emergency lighting system shall operate automatically upon failure of the principal system and shall be capable of providing distinct illumination for a period of at least 30 minutes of all access openings of confined spaces as well as of the general surrounding area and exits.  Whenever the principal lighting system fails, the confined spaces shall be evacuated immediately.  Where any confined space is to be entered infrequently for inspection or similar purposes, sufficient quantities of battery-powered lights in good working order shall be provided to afford distinct illumination at every access opening and its surrounding area and exit.  These lights shall be capable of providing illumination for a period of time of at least one hour.
Regulation prescribing safety rules and standards for workers entering confined spaces is specific to support § 241(6) cause of action and applicable to accident involving cleaning of fuel tank in unventilated room.  Rivera v Ambassador Fuel and Oil Burner Corp., 45 AD3d 275, 845 NYS2d 25 (1st Dept. 2007) (reinstating § 241(6) claim because work performed involved more than simple cleaning of fuel tank and was part of more comprehensive, overall contract for installation of new boiler and therefore, it could not be said as matter of law that cleaning of tank was not related to construction). 
Regulations § 12-1.9(a)(1), (b)(5) and (b)(6) are sufficiently specific to support a § 241(6) cause of action.   Piazza v Frank L. Ciminelli Const. Co., supra.

            12 NYCRR § 21.3(d) – Protection of Persons Employed at Window Cleaning; Structural requirements; Equipment and procedures; Defective windows and structures –
(a) Owner's statement required. Before windows or window anchors are installed in a building subject to section 202 of the Labor Law a sufficient statement of the proposed means and methods of cleaning such windows shall be submitted by the owner (as defined) to the commissioner.  (b) Means and methods required. (See § 21.4, infra.)  (1) No owner shall suffer or permit a cleaner to clean a window of his building unless it has the structural features and the anchors or other fixed devices required by this Part in respect to the authorized means and methods of cleaning used by the cleaner.  (2) No employer shall suffer or permit an employee to clean a window otherwise than in accordance with an authorized means and method. Every employer must provide or cause to be provided to a cleaner in his employ the portable equipment, devices and materials specified in respect to the authorized means and methods used by such cleaner.  (3) No cleaner shall clean any window otherwise than in accordance with an authorized means and method.  (c) Employees under 18.  No employer shall suffer or permit an employee under the age of 18 years to clean windows.  (d) Defective windows and structures.
(1) No owner shall suffer or permit a cleaner to clean any window installed in his building if any part of such window or surrounding structures upon which the cleaner may depend for support is so defective, damaged or deteriorated as to affect its structural strength, or if any part of such window which must be opened during cleaning cannot be operated easily.  (2) The owner shall repair or replace any defective part upon which the cleaner may depend for support.
(e) Unsafe equipment prohibited.  (1) No person shall willfully sell, lend, provide or suffer or permit the use of, window cleaning equipment that is unsafe in any respect.  (2) No employer shall suffer or permit a cleaner to use rope which has sustained wear or deterioration materially affecting its strength.  (f) Maintenance of equipment.  (1) Window cleaning equipment shall be maintained in good repair at all times.  (2) Safety belts shall be hung up in a dry place and protected from damage when not in use.  (3) All fiber and wire rope shall be stored in a dry place and protected against contact with corrosive substances.  (g) Employer's inspection of equipment. Safety belts, ladders and scaffolds and boatswain's chairs with their supporting tackle, shall be examined at least once each month by the employer and he shall not suffer or permit the use of such equipment while it is unsafe in any respect.  (h) Installation of unapproved anchors.  No person shall install an unapproved anchor.  (i) Unauthorized installations--removal by owner.  Every unapproved anchor and every unauthorized installation of an anchor, and every anchor of which the fastenings or supports are damaged or deteriorated, shall be removed or rendered unusable by detachment of the anchor head.  (j) Misuse of anchors. An installed anchor shall not be used for any purpose other than attachment of an approved safety belt.  (k) Shutter bars.  Shutter bars on windows which are cleaned from the outside shall be maintained in sound condition and shall be fastened with iron through-bolts at least three-eighths inch in diameter and provided with proper size washers and means to prevent loosening of the nuts.  (l) Extension devices.  (1) A cleaner using an extension device above the first floor shall attach it to his person by a wrist loop or otherwise to prevent dropping.  (2) Each extension device used above the first floor shall have a locking device to prevent inadvertent detachment of the brush or squeegee.
Regulation stating that window cleaners may not be permitted to clean windows if the window or its supporting structures have defects or damage impairing its structural strength or if the window cannot be opened easily, is applicable where worker fell out of window after losing his balance in d trying to open it and there was evidence that premises owner warned worker of problems in opening window.  Padovano v Teddy’s Realty Associates, Ltd., 56 AD3d 444, 866 NYS2d 743 (2d Dept. 2008) (it was error to dismiss Labor Law § 202 cause of action because it was not demonstrated that Labor Law § 202 and rules promulgated thereunder were complied with and there was triable issue of fact as to whether window at issue was defective within meaning of the rules).

            12 NYCRR part 23 – Protection in Construction, Demolition and Excavation Operations – Specific regulatory standards are not met … simply by reference to 12 NYCRR part 23.  Mamo v Rochester Gas & Elec. Corp., supra.

            12 NYCRR § 23-1.2 – Protection in Construction, Demolition and Excavation Operations; Finding of fact – The board finds that the trades and occupations of persons employed in construction, demolition and excavation operations involve such elements of danger to the lives, health and safety of such persons and of persons lawfully frequenting the areas of such activities as to require special regulations for their protection in that such persons are exposed to the following: (a) The hazards of falling and of falling objects and materials.  (b) The hazards associated with the operation of vehicles and of construction, demolition and excavation machinery and equipment.  (c) The hazards of fire, explosion and electricity.  (d) The hazards of injury from the use of and contact with dangerous tools, machines and materials.          (e) The hazards incidental to the handling and movement of heavy materials.  (f) The hazards of exposure to the elements and air contaminants.
This is a general provision and is not a basis for liability under § 241(6).  Stairs v State St. Assocs., 206 AD2d 817, 615 NYS2d 478 (3d Dept. 1994) (regulation § 23-1.2 relates to general safety standards and, as such, does not support a § 241(6) claim); Doyne v Barry, Bette & Led Duke Inc., 246 AD2d 756, 668 NYS2d 58 (3d Dept. 1998) (although SSC admittedly was neither the owner nor the general contractor for the project, the contract between SSC and BBL required SSC to “[f]urnish material, labor, equipment and supervision necessary for the complete installation of [s]tructural [s]teel.”  Accordingly, the record plainly demonstrates that SSC was vested with the requisite authority to supervise and control the injury-producing work, and mere fact that SSC may not have exercised such authority is irrelevant for purposes of determining the existence of a statutory agency). 
Regulation § 23-1.2(c) is a general provision of the Industrial Code.  Gordineer v Orange, 205 AD2d 584, 613 NYS.2d 247 (2d Dept. 1994) (plaintiff failed to show that defendant violated specific regulation implemented under safety statute needed to raise triable issue). 
Regulation § 23-1.2(e) relates to general safety standards (Biszick v Ninnie Constr. Corp., 209 AD2d 661, 619 NYS2d 146 [2d Dept. 1994]) and is not sufficiently specific to support a § 241(6) claim.  Hasty v Solvay Mill Ltd. Partnership, 306 AD2d 892, 760 NYS 765 (4th Dept. 2003); see also Narrow v Crane-Hogan Structural Sys., 202 AD2d 841, 609 NYS2d 372 (3d Dept. 1994). 

            12 NYCRR § 23-1.3 – Protection in Construction, Demolition and Excavation Operations – This Part (rule) applies to persons employed in construction, demolition and excavation operations, to their employers and to the owners, contractors and their agents obligated by the Labor Law to provide such persons with safe working conditions and safe places to work. This Part (rule) also applies to persons lawfully frequenting the areas of construction, demolition and excavation operations. This Part (rule) applies exclusively throughout the State of New York notwithstanding any other law or regulation, local or general.
Regulation § 23-1.3 is a general provision and thus, does not provide a basis of liability for a § 241(6) cause of action.  Williams v White Haven Memorial Park, Inc., 227 AD2d 923, 643 NYS2d 787 (4th Dept. 1996); see also McGrath v Lake Tree Vil. Assocs., 216 AD2d 877, 629 NYS2d 358 (4th Dept. 1995). 

12 NYCRR § 23-1.4 – Protection in Construction, Demolition and Excavation Operations – (a) General descriptive terms. As used in this Part (rule), such general terms as adequate, effective, equal, equivalent, firm, necessary, proper, safe, secure, substantial, sufficient, suitable and other similar terms when used to describe materials, devices, structures, methods and procedures required by this Part (rule) shall mean that such materials, devices, structures, methods and procedures shall be of such kind and quality as a reasonable and prudent man experienced in construction, demolition and excavation operations would require in order to provide safe working conditions for himself in the performance of such work.  (b) Specific terms. As used herein or in connection with this Part (rule) the following terms mean: (1) Acceptable. Acceptable to the commissioner.  (2) Aerial basket. A vehicle-mounted, power-operated device with an articulating or telescoping work platform designed for use at elevated working positions.  (3) Approved. In respect to a device, material or method: in compliance with a subsisting resolution of approval adopted by the board. In respect to action by the board: made the subject of a resolution of approval. There are two kinds of approval granted by the board as follows: (i) General approval. An approval, either required or voluntary, which is effective throughout the State of New York.  (ii) Special approval. An approval, either required or voluntary, which is granted for a particular device, material or method to be used or operated only at the specific location stated in the resolution of special approval.  (4) Area. Any space, either private or public, including a road, street or sidewalk, which may be affected by or subject to hazards from construction, demolition or excavation operations.  (5) Bearer. A horizontal member of a scaffold which supports the platform.  (6) Blasting area. An area near any blasting operation in which concussion or flying material or debris resulting from a blast of explosives can reasonably be expected to cause injury to any person therein.  (7) Board. The Board of Standards and Appeals of the State of New York.  (8) Boatswain's chair. A seat supported by rope slings attached to a block and tackle or supported by a powered hoisting unit designed to accommodate one person in a sitting position for vertical travel.  (9) Bricklayer's square scaffold. A scaffold the platform of which is composed of planks supported on built-up squares secured to each other by diagonal bracing.  (10) Catch platform. A structure fabricated and mounted on an exterior vertical wall of any building or other structure and designed to catch and hold falling objects or material from upper working levels.  (11) Commissioner. The Industrial Commissioner of the State of New York or his duly authorized representative.  (12) Competent. Qualified by training and/or experience to perform a particular task or duty.
(13) Construction work. All work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures, whether or not such work is performed in proximate relation to a specific building or other structure and includes, by way of illustration but not by way of limitation, the work of hoisting, land clearing, earth moving, grading, excavating, trenching, pipe and conduit laying, road and bridge construction, concreting, cleaning of the exterior surfaces including windows of any building or other structure under construction, equipment installation and the structural installation of wood, metal, glass, plastic, masonry and other building materials in any form or for any purpose.  (14) Dangerous air contaminants. Air contaminants in quantities tending to injure the health of any person. Air contaminants in quantities greater than 25 percent of the lower explosive level of any substance, mixture or compound which they may form.  (15) Dead load. The load imposed on a structure by the weight of all component parts which make up such structure.  (16) Demolition work. The work incidental to or associated with the total or partial dismantling or razing of a building or other structure including the removing or dismantling of machinery or other equipment.  (17) Designated person. A person selected and directed by an employer or his authorized agent to perform a specific task or duty.  (18) Excavating machine. A power-driven vehicle equipped to excavate, push, grade or elevate earth, rock or other material.  (19) Excavation work. The removal of earth, rock or other material in connection with construction or demolition operations.  (20) Excavation, area-type. An excavation having a bottom width equal to or greater than twice the depth of such excavation.  (21) Excavation, trench-type. An excavation having a bottom width less than twice the depth of such excavation.
(22) Extension ladder. A non-self-supporting portable ladder adjustable in length which consists of two or more sliding sections traveling in guides or brackets.  (23) Extension trestle ladder. A self-supporting trestle ladder provided with an adjustable vertical sliding single ladder section having parallel sides or rails.  (24) Heavy duty scaffold. A scaffold designed and constructed to carry a maximum live load of 75 pounds per square foot, such as one intended for stone masons and required to support heavy materials in addition to the workmen.  (25) Independent pole scaffold. A scaffold supported from the ground, floor or equivalent surface by a double row of vertical poles, independent of support from the walls of a building or other structure, and which consists of poles, ledgers, diagonal bracing, horizontal platform bearers and a platform.
(26) Job site. The site of a project involving construction, demolition or excavation operations.
(27) Ladder jack scaffold. A scaffold the platform of which is supported by brackets or jacks attached to the side rails of ladders.  (28) Ledger. A horizontal scaffold member extending to and forming a tie between the vertical posts and which supports the putlogs or bearers.  (29) Life net. An approved life net made and used in compliance with the provisions of this Part (rule).
(30) Light duty scaffold. A scaffold designed and constructed to carry a maximum live load of 25 pounds per square foot, such as one intended for carpenters or painters and required to support no load other than a small weight of material or tools in addition to the workmen.  (31) Live load. The load imposed on a structure consisting of the total weight of all loads supported by such structure.  (32) Manually propelled mobile scaffold. A portable rolling scaffold supported by casters.  (33) Material platform hoist. A power- or manually-operated suspended platform operating in guide rails attached to a tower or similar structure used for raising or lowering material exclusively and operated and controlled from a point outside the conveyance.  (34) Medium duty scaffold. A scaffold designed and constructed to carry a maximum live load of 50 pounds per square foot, such as one intended for bricklayers or plasterers and required to support no load other than a moderate weight of material in addition to the workmen.  (35) Multiple-point suspension scaffold. A scaffold with a continuous platform supported by three or more beams or bearers the ends of which are so suspended by wire rope from an overhead support as to permit the raising or lowering of the platform to a desired position by manual or powered means.  (36) Needle beam scaffold. A scaffold consisting of a plank platform supported by parallel horizontal beams which are suspended by ropes.
(37) Outrigger scaffold. A scaffold the platform of which is built upon outriggers or thrust-outs projecting from the wall or exterior face of a building or other structure with the inboard ends of such supports secured inside the building or other structure.  (38) Personnel hoist. A power-operated elevator the car of which operates in guide rails supported by an exterior tower or similar structure or by an interior hoistway within a building or other structure and used primarily to carry persons to elevated work areas during construction or demolition operations.
(39) Persons lawfully frequenting. Any person exercising a lawful right of presence or passage in any area, including persons on a public sidewalk, street or highway.  (40) Power buggy. A small self-powered vehicle operated by one person and used solely for the movement of materials on or about construction, demolition or excavation sites.  (41) Putlog. A horizontal member of a single-pole scaffold supported on one end by a ledger and on the other end by the wall of a building or other structure and which supports the scaffold platform.  (42) Roofing bracket. A bracket used in sloped roof construction and having sharp points of other means for securely fastening the bracket to the roof in order to prevent any person from slipping.
(43) gRunner. A horizontal member of a scaffold extending the entire length of the scaffold.
(44) Safety belt. An approved safety belt provided and used in accordance with the provisions of this Part (rule).  (45) Scaffold. A temporary elevated working platform and its supporting structure including all components.  (46) Sectional ladder. A ladder consisting of two or more individual sections so constructed that the sections can be connected and combined end to end to function as a single ladder.  (47) Shall. The word shall is always mandatory.  (48) Shoring, concrete. A system of temporary supports, either wood or metal, used to support the weight of forms and uncured concrete.  (49) Shoring, excavation. Temporary bracing used to support the sides of an excavation to prevent their collapse.  (50) Single ladder. A non-self-supporting portable ladder, nonadjustable in length, consisting of but one section.  (51) Single pole scaffold. A scaffold the platform of which rests on putlogs or cross-beams, the outer ends of which are supported on ledgers secured to a single row of vertical posts or uprights while the inboard ends are supported on the top of a wall or other structure or by means of openings in a wall or other structure.  (52) Soil. (i) Stiff cohesive soil. Soil which does not crumble and which shows only slight indentations with moderate finger pressure. Such soils are generally stiff silts and clays or glacial tills with a relatively high content of plastic fines.  (ii) Non-cohesive soil. Soil which crumbles by itself or under slight finger pressure. Such soils are generally silts, sands, gravels or mixtures of these with little or no plastic fines present.  (iii) Soft cohesive or wet-flowing soils. Wet sticky soil which can be molded with slight finger pressure or wet fine-grained granual soil which flows under its own weight. Such soils are either soft silts, clays, organic soils or wet loose sands and/or silts.  (53) Stepladder. A self-supporting portable ladder, non-adjustable in length, having flat steps or heavy duty rungs and a hinged back.  (54) Stilts. A pair of devices with foot and leg attachments which are used to elevate a person above a floor or equivalent surface in order to perform work on walls and ceilings.  (55) Tower crane. A crane design which utilizes a mast or tower in a fixed vertical position for supporting the operating boom. The three elements of a tower crane are a revolving superstructure, a base mounting and a boom attachment and such elements are varied for each tower crane application.  (56) Trestle ladder. A self-supporting portable ladder, non-adjustable in length, consisting of two sections which are hinged together at the top to form equal angles with the base.  (57) Tube and coupler scaffold. A self-supporting scaffold constructed of individual pieces of tubular metal, pipe or other material of equivalent strength forming vertical posts, runners, bearers and diagonal bracing and with all junction points fastened together by means of approved couplers or approved locking devices.  (58) Two-point suspension scaffold. A scaffold of the type commonly known as a painter's scaffold or swing staging having a platform supported by stirrups or hangers at two points near the ends and which is so suspended from overhead supports as to permit the raising or lowering of the platform to a desired position either manually or by means of power.  (59) Window jack. A working platform for one person which is supported by a bracket or jack which projects through a window opening.  (60) Zone of demolition. Any area in the immediate vicinity of a demolition site where persons may be injured from falling material or debris or from the operation of demolition machinery or equipment.
            Regulation § 23-1.4(a) is not a specific, positive command.  Ross v Curtis-Palmer Hydro-Elec. Co., supra
Regulation § 12-1.4(b)(13) is not sufficiently specific to support a § 241(6) cause of action.  Dombrowski v Schwartz, 217AD2d 914, 629 NYS2d 924 (4th Dept. 1995).

            12 NYCRR § 23-1.5 – Protection in Construction, Demolition and Excavation Operations; General responsibility of employers – These general provisions shall not be construed or applied in contravention of any specific provisions of this Part (rule).  (a) Health and safety protection required. All places where employees are suffered or permitted to perform work of any kind in construction, demolition or excavation operations shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection for the lives, health and safety of such persons as well as of persons lawfully frequenting the area of such activity. To this end, all employers, owners, contractors and their agents and other persons obligated by law to provide safe working conditions, personal protective equipment and safe places to work for persons employed in construction, demolition or excavation operations and to protect persons lawfully frequenting the areas of such activity shall provide or cause to be provided the working conditions, safety devices, types of construction, methods of demolition and of excavation and the materials, means, methods and procedures required by this Part (rule). No employer shall suffer or permit an employee to work under working conditions which are not in compliance with the provisions of this Part (rule), or to perform any act prohibited by any provision of this Part (rule).  (b) General requirement of competency. For the performance of work required by this Part (rule) to be done by or under the supervision of a designated person, an employer shall designate as such person only such an employee as a reasonable and prudent man experienced in construction, demolition or excavation work would consider competent to perform such work.  (c) Condition of equipment and safeguards.  (1) No employer shall suffer or permit an employee to use any machinery or equipment which is not in good repair and in safe working condition.  (2) All load-carrying equipment shall be designed, constructed and maintained throughout to safely support the loads intended to be imposed thereon.  (3) All safety devices, safeguards and equipment in use shall be kept sound and operable, and shall be immediately repaired or restored or immediately removed from the job site if damaged. 
            Regulation § 23-1.5 requiring “reasonable and adequate” protection and that machinery be in “good repair” and “safe,” is inapplicable where worker injured as result of basement floor collapse during demolition of brick wall with jackhammer (Balladares v Southgate Owners Corp., 40 AD3d 667, 835 NYS2d 693 [2d Dept. 2007]) and sets forth only general safety standard.  Mahoney v Madeira Associates, 32 AD3d 1303, 822 NYS2d 190 (4th Dept. 2006); see also Murray v Lancaster Motorsports, Inc., 27 AD3d 1193, 812 NYS2d 726 (4th Dept. 2006) (general safety standard insufficient to support § 241(6) claim); Basile v ICF Kaiser Engineers Corp., 227 AD2d 959643 NYS2d 854 (4th Dept. 1996); Mazzu v Benderson Development Corp., 224 AD2d 1009637 NYS2d 540 (4th Dept. 1996).
Regulation § 23-1.5(a) providing that employers must provide safe work areas, equipment and methods, as well as competent supervisors, is not sufficiently specific to support § 241(6) claim.  Pereira v Quogue Field Club of Quogue, 71 AD3d 1104, 898 NYS2d 220 (2d Dept. 2010) (that provision merely sets forth a general standard of care and, thus, cannot serve as a predicate for liability for a § 241(6) claim); Wilson v Niagara University, 43 AD3d 1292, 842 NYS2d 819 (4th Dept. 2007) (plaintiff laborer who was injured when overturned five-gallon bucket used to gain access to crawl space slipped out from under him, causing him to fall and injure his back, had § 241(6) claim dismissed insofar as based upon alleged violation of § 23-1.5(a), which sets forth general standard of care and is not sufficiently specific to support section 241 (6) claim); see also Hawkins v City of New York, 275 A.D.2d 634713 N.Y.S.2d 311 (1st Dept. 2000); Williams v White Haven Memorial Park, supra; Mahoney v Madeira Associates, supra.  However, regulation § 23-1.5(a) is applicable where plaintiff fell due to mixed wet cement and mortar debris on scaffold.  McCormack v Helmsley-Spear, Inc., 233 AD2d 203, 649 NYS2d 697 (1st Dept. 1996) (plaintiffs' § 241(6) claim reinstated because it was adequately supported by a safety expert's specific allegations that defendants breached various provisions of 12 NYCRR part 23).
Regulation § 23-1.5(c)(1) providing that “no employer shall suffer or permit an employee to use any machinery or equipment which is not good repair and in safe working condition” is not sufficiently specific to support § 241(6) cause of action.  Gasques v State, 15 NY3d 869, 910 NYS2d 415 (2010); see also Sajid v Tribeca North Associates, L.P., 20 AD3d 301799 NYS2d 33 (1st Dept. 2005) (that provision is a general safety directive and thus, insufficient as a predicate for such liability under a § 241(6) cause of action). 
Regulations § 23-1.5(c)(2) and (c)(3) are general provisions and thus, does not provide a basis for liability under § 241(6).  Williams v White Haven Memorial Park, supra; see also Vernieri v Empire Realty Co., 219 AD2d 593, 631 NYS2d 378 (2d Dept. 1995). 

            12 NYCRR § 23-1.6 – Protection in Construction, Demolition and Excavation Operations; Responsibility of employees – Every employee shall observe all the provisions of this Part (rule) which directly concern or affect his conduct. He shall use the safety devices provided for his personal protection and he shall not tamper with or render ineffective any safety device, safeguard or personal protective equipment. 
Regulation § 23-1.6 requiring employees to observe regulations and utilize provided safety equipment is inapplicable where worker injured as result of basement floor collapse during demolition of brick wall with jackhammer.  Balladares v Southgate Owners Corp., supra; see also Lawyer v Roterdam Ventures, 204 AD2d 878, 612 NYS2d 682 (3d Dept. 1994) (that provision not applicable where plaintiff, while erecting sign on front of building, fell from ladder when it slipped and collapsed). 

           

 

                                                                        

 

 

 

 

                

 

 

           

 

 

 

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