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Labor Law Pointers - Volume II, No. 4

Labor Law Pointers

Volume II, No. 4
Wednesday, January 2, 2012

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

 

From the Editor:

Happy New Year to all our readers from the entire labor law team here at Hurwitz & Fine.  I hope you all enjoyed the special Christmas edition and thanks to those of you who had comments.  I think I have a new Christmas tradition. 
            The courts are back in full swing and we have an issue loaded with decisions.  There are several shifting ladder cases and even the rare case where a plaintiff was found to be the sole proximate cause when she lost her balance and fell from a ladder which did not have a defect or inadequacy, she simply lost her balance and Summary Judgment was granted to the defendant.  Several plaintiff have tried to enlarge the holding in Runner without success.  No doubt this is the most cited labor law case of the past several years.

            Jen Ehman has a great Court of Appeals case where a condominium (and its board) is granted Summary Judgment and found not to be an owner or agent of an owner where a plaintiff is injured working in a unit in the building.  Marc Schulz has a second section of his review of NYCRR regulations addressing each to let you know if the courts have found them to be specific (thus supporting a 241(6) claim) or general (and not being able to support a 241(6) claim).  I will be making the entire list available when he is done and will attach it to a future edition.  In addition we will update it each month and have it available at any time.

            I am taking a step into the 21st Century; a carrier I do work for has asked that I run a seminal for their adjusters on New York labor law.  The problem is that they all work remotely and are scattered all across the state and beyond.  We have developed a method of delivering the seminar to each adjuster via their computer.  By the way when I say “we” have developed a method what I mean I that our IT department said “of course we can do that, what are you, a cave man.”  I knew this is not new technology, webinars have been around for a long time, but this is the first one I have developed in-house.  If anyone else is interested just let me know.  I still prefer to meet face to face whenever possible but that is not always an option with more departments meeting co-locating and meeting virtually. 

            Thanks for your continued support of our newsletter and please, as always, feel free to contact us at any time by phone, email with any question labor law related, we love questions.

            A happy, healthy and prosperous 2013 to all.

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]

12/04/12          Garcia v DPA Wallace Ave. I, LLC
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_08254.htm
          
Plaintiff elevator mechanic was in elevator pit preparing to dismantle components of the elevator when the “selector tape”, a thin strip of metal, broke and “snapped” upwards, cutting his hand.  Plaintiff testified that the breakage of the tape was caused by the loosing of the shift to which the tape was connected, allowing the tape to bend, and the tension put on the tape created by gravitational force on a weight in the overhead room, which essentially acts as a counterweight to keep the tape taut. 
The First Department held § 240(1) is inapplicable to this case because “the object upon which the force of gravity was applied, the weight in the overhead room, was not material being hoisted or a load that required securing for the purpose of carrying out plaintiff’s undertaking.”  According to the court, “it was part of the preexisting structure as it appeared before plaintiff’s work began” and the weight was not being hoisted as a part of the plaintiff’s work. 
PRACTICE POINT:                        Plaintiff tried to use Runner to support his argument for Summary Judgment but the court was not convinced.  Here the fact that the tape was simply kept taught by the weight as opposed to the wire being lowered in Runner is the basic difference along with the fact that the tapes was in place and a part of the structure prior to the start of the work.

12/06/12          Gunderman v Sure Connect Installation, Inc.
Appellate Division, Third Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_08393.htm

In May 2005, Defendant Time Warner Entertainment-Advance/Newhouse Partnership contracted with Defendant Sure Connect to perform certain cable installations within Time Warner’s franchise area, and Sure Connect, in turn, contracted with various technicians, including Plaintiff, to perform the actual installation work.  In January 2008, Plaintiff was dispatched to a residence to upgrade a customer’s service – a task that included, among other things, replacing the “drop line” connecting the residence to the “hard line,” the latter of which constituted the main cable running between the nearby utility poles.  The hard line was   supported by a steel cable known as a strand, and the drop line was connected to the strand using clamps and a device known as a messenger.  Although Plaintiff has no memory of the accident, photographs and other record evidence suggests that Plaintiff placed a ladder over the strand and ascended the ladder, at which point the drop line either broke or was cut by Plaintiff and “whipped back,” causing Plaintiff to fall to the pavement below, sustaining serious head injuries.

Supreme Court granted Defendant Sure Connect’s cross-motion and dismissed Plaintiffs Labor Law § 240(1) claim.  Plaintiff thereafter successfully moved to reargue, and Supreme Court granted Plaintiffs partial summary judgment regarding their § 240(1) claim.  According to the Third Department, the case law makes clear that a utility pole “with its attached hardware, cable and support systems constitutes a structure within the meaning of Labor Law § 240(1).”  The key issue identified by the Court was whether the overall work that Plaintiff was performing involved “making a significant physical change to the configuration or composition of a building or structure”, thereby constituting an alteration or, alternatively, whether he was engaged in a “simple, routine activity.” 

Here, the record revealed that, at the time he was injured, Plaintiff was in the process of upgrading the service provided to a residential customer – a task that entailed, among other things, replacing the drop line with a new cable capable of transmitting more date, performing certain indoor wire work and configuring the customer’s computer.  The record does not, however, contain any meaning description of the nature or extent of the actual work that Plaintiff was scheduled to perform.  Plaintiff has no memory of the tasks he performed that day and the technicians who completed the upgrade following Plaintiff’s fall apparently were not deposed.  Without a more detailed description of the tasks required to complete the work undertaken by Plaintiff, the Court is unable to determine whether the work undertaken by Plaintiff on the day of the accident constituted an alteration within the meaning of Labor Law § 240(1).  Notwithstanding the liberal construction to be afforded to Labor Law § 240(1) to accomplish its remedial purpose, the Third Department held that Supreme Court’s award of partial summary judgment to Plaintiffs regarding their § 240(1) claim was premature. 

PRACTICE POINT:  Joblon again with the need for a “significant physical change to the configuration or composition of a building or structure” but the important thing to remember from this case is that if you are planning on making the motion it is important to have details of the task to be accomplished in admissible form to support the alteration argument.  On the other hand if you think you may well wind up opposing the motion a certain amount of vagueness may play into your hand.

12/6/12            Betancur v Lincoln Center for the Performing Arts, Inc.
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_08405.htm
           
Supreme Court granted Plaintiff’s motion for summary judgment as to liability under § 240(1) against defendants Lincoln Center and IBC.  Plaintiff testified that the ladder she stood on inexplicably wobbled beneath her, causing her to fall and be injured.  According to the First Department, there was no evidence in the record from which it could reasonably be inferred that she was the sole proximate cause of her injuries. 

PRACTICE POINT:            Reminder case again that if it is the ladder which shifts of in this case “wobbles” it is going to be a 240(1) case.

12/12/12          Alfonso v Pacific Classon Realty, LLC
Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_08468.htm

Plaintiff allegedly sustained injuries while, in the course of his employment with D.S. Imports, he was attempting to remove a heating unit from the ceiling of certain premises leased, at the time of the accident, by defendant Delmar Sales, Inc. and purchased, one day after the accident, by defendant Pacific Classon, Realty (PCR), LLC. 
           
The Second Department held that Supreme Court properly denied those branches of defendants’ motion which were for summary judgment dismissing the §240(1) cause of action against Delmar Sales, made on the ground that Delmar Sales was not a contractor or owner within the meaning of the Labor Law.  Second Department held “a party is deemed to be an agent of an owner or contractor under the Labor Law when it has the ability to control the activity which brought about the injury.”  A lessee of real property that hires a contractor and has the right to control the work at the property is considered to be an owner within the meaning of the law.  Moreover, the term owner “may also apply to a lessee, where the lessee has the right or authority to control the work site, even if the lessee did not hire the general contractor.”  According to the Court, “the key question is whether the defendant had the right to insist that proper safety practices were followed.”  Here, the Court determined that Delmar Sales failed to establish that it was not an owner or agent within the meaning of the Labor Law. 

The court also addressed the issue of special employee status.  The defendant failed to establish that plaintiff was a special employee and thus failed to obtain the protection of §11 of the Comp law. 

PRACTICE POINT:  Establishing that a plaintiff is a special employee is a great defense but one that must be approached carefully.  Establishing that the defendant is an alter ego or engaged in a joint venture with the employer is very fact specific standard and its applicability to the facts of the case must be explored prior to depositions to make sure you ask the appropriate questions and that your client will qualify.  The definition of agent as one who has the ability to control the activity and an owner as one who has the right or authority to control the work site are also important definitions to be aware of as sometimes parties you may not think would qualify do in fact have standing as a defendant in a labor law case.

12/13/12          Rosier v Stoeckeler
Appellate Division, Third Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_08605.htm
           
Plaintiff was employed by a company that had contracted to replace two garage doors at an automobile repair shop in a building owned by Defendant.  Plaintiff was at the site working about 3 feet above the garage floor on a five or six foot ladder disassembling a door when he fell, allegedly ending up in a four to five-foot deep pit in the garage. 
            Third Department stated that “not every fall from a ladder establishes that the ladder did not provide appropriate protection.”  Further, “a prima facie case is established by proof that the ladder collapsed, slipped or otherwise failed, and this shifts the burden to defendant to produce ‘evidence that the device furnished was adequate and properly placed and that the conduct of the plaintiff may be the sole proximate cause of his injuries.’”  Although Plaintiff submitted an affidavit indicating that his fall occurred when the ladder “shifted and began tipping,” Defendant countered by producing deposition testimony of Plaintiff in which he testified he simply lost his balance and he did not know what caused him to lose his balance.  Plaintiff also testified that the ladder was in good condition, he had no problems with it, and he had used this same type of ladder many times while performing similar jobs. 
            Third Department determined there is conflict proof in the record as to whether Plaintiff fell on the floor of the garage or into the garage pit, and it is not clear from his deposition the role, if any, his handling of a door section had in his fall.  Construing this proof most favorably to the non-moving party and noting that an unexplained conflict between deposition testimony and a subsequent submission by the deposed party generally will not support summary judgment, Third Department agreed with Supreme Court that factual issues for trial exist regarding Plaintiff’s § 240(1) claim.
PRACTICE POINT:  The importance of locating and obtaining every statement of the plaintiff, and all witnesses for that matter, is evident here.  A description of how the accident happened which is factually different from the plaintiff’s testimony or affidavit can result in a question of fact precluding Summary Judgment for the plaintiff. 

12/19/12          Chabla v 72 Greenpoint, LLC
Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_08681.htm
           
Plaintiff was allegedly injured when he fell approximately fifteen feet from a scaffold to the ground.  Plaintiff testified at his deposition that he was descending a two-story high scaffold using the metal cross-pieces of the scaffolding’s frame.  After reaching the scaffolding’s first level, Plaintiff rested his foot on a piece of platform planking that extended approximately eight inches beyond the scaffolding’s frame when the planking broke, causing him to fall to the ground.
            The Second Department held that Plaintiff made a prima facie showing establishing his entitlement to judgment as a matter of law by demonstrating that when he stepped on the edge of one of the planks of the scaffolding, it failed to support his weight and broke, causing him to fall.  In opposition, Defendants failed to raise a triable issue of fact as to whether Plaintiff’s actions were the sole proximate cause of his injuries.  Accordingly, Second Department affirmed Supreme Court’s granting of Plaintiff’s motion for summary judgment on the issue of liability on the cause of action allegation a violation of Labor Law § 240(1).
PRACTICE POINT:  No recommendations to defend this one, where a scaffold breaks and the plaintiff falls it is pretty much all over for the defense.

12/19/12          Gambale v 400 Fifth Realty, LLC
Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_08691.htm
           
Plaintiffs are ironworkers who allegedly were injured while working on the 42nd floor during the construction of a building.  The accident occurred when the floor, which then consisted of plywood decking, collapsed underneath them as they were standing on it.  Plaintiffs moved for summary judgment on the issue of liability on the cause of action allegation a violation of Labor Law § 240(1), and Defendants cross-moved to dismiss that cause of action.  Supreme Court granted that branch of Plaintiff’s motion and denied that branch of Defendant’s cross-motion.
            The Second Department held that Plaintiffs met their prima facie burden of establishing that Defendants’ violation of § 240(1) was a proximate cause of their accident.  In opposition, Defendants failed to raise a triable issue of fact as to whether Plaintiff’s actions were the sole proximate cause of their accident. 
PRACTICE POINT:  Once again where the decking the plaintiff is working on collapses from under him it is virtually always a labor law case.

 

12/21/12          Kin v State of New York
Appellate Division, Fourth Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_08887.htm
           
Claimant brought this lawsuit for injuries she sustained when she fell from a ladder while working on a bridge reconstruction project.  Claimant’s employer had been hired by Defendant property owner to repair the bridge in question.  At the time of her accident, Claimant was using the top half of an extension ladder that lacked rubber feet in an attempt to gain access to a scaffold that had been erected under the bridge.  When Claimant was four or five rungs from the top of the ladder, the bottom of the ladder slid out from beneath her, causing her to fall approximately ten feet to the ground.
            Plaintiff moved for partial summary judgment on the issue of liability regarding her §240(1) cause of action and Defendant cross-moved to dismiss the claim.  The lower court denied the motion.  On appeal, the Fourth Department rejected Defendant’s contention that the sole proximate cause of the accident was Claimant’s improper use of the top half of the extension ladder, which lacked rubber feet.  According to the Fourth Department, as there was no dispute that the ladder slipped and thereby caused Claimant to fall from an elevated work site, Claimant met her initial burden under Labor Law § 240(1) of establishing that the ladder was “not so placed … as to give proper protection to her.”  Thus, the burden shifted to Defendant to raise an issue of fact whether Claimant’s “own conduct, rather than any violation of Labor Law § 240(1), was the sole proximate cause of her accident”, and Defendant failed to meet that burden. 
            The Fourth Department noted that Defendant was required to establish that “the safety devices that Claimant alleges were absent were readily available at the work site, albeit not in the immediate vicinity of the accident, and that Claimant knew she was expected to use them but for no good reason chose not to do so, causing an accident.”  Although Defendant established that ladders with rubber feet i.e. the bottom halves of extension ladders, were available at the work site for Claimant’s use, Defendant submitted no evidence that Claimant knew that she was expected to use only those ladders.  Claimant’s supervisor testified that she had previously used ladders that did not have rubber feet and that she believed that other workers had used such ladders as well.  Although Claimant further testified that she realized “in retrospect” that it was inappropriate to use the top half of the extension ladder, Defendant submitted no evidence that Claimant knew at the time of the accident that her use of the top half of the extension ladder was unsafe.  Therefore, the Fourth Department held that the Supreme Court erred in denying Claimant’s motion for partial summary judgment on liability under Labor Law § 240(1). 
PRACTICE POINT:  Recall the three necessary elements to establish a sole proximate cause defense, 1) an appropriate safety device, 2) that the appropriate safety device is available and 3) that the plaintiff was told or knew he was to utilize the available and appropriate safety device.  Here the issue was that there was no evidence that the plaintiff knew she was expected to use the ladder with rubber feet, the death knell to the Summary Judgment motion for Summary Judgment by the plaintiff and the plaintiff was granted Summary Judgment.

 

12/26/12          Gaspar v Pace Univ.
Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_09024.htm
           
Injured Plaintiff was working as an asbestos handler for a construction company performing asbestos removal at a building owned by Defendant Dormitory Authority of the State of New York and leased by the Defendant Pace University.  After injured Plaintiff’s supervisor directed him to replace light bulbs in a decontamination area, injured Plaintiff set up a six-foot-A-Frame ladder provided by his employer.  Injured Plaintiff inspected the ladder for stability prior to using it.  Moreover, while working in the decontamination area, he wore a full face mask with a filter and respirator.  He changed the first light bulb without incident.  After changing the second light bulb, Plaintiff’s face mask became hooked on a cable hanging from the ceiling.  In attempting to dislodge the mask from the cable, injured Plaintiff shook his head back and forth, during which time he lost his balance and fell from the ladder, allegedly sustaining injuries. 
            Supreme Court denied Plaintiff’s motion for summary judgment on the issue of liability on the cause of action allegation violation of Labor Law § 240(1), and granted Defendants’ cross-motion dismissing that cause of action.  Here, Defendants demonstrated that the ladder from which injured Plaintiff fell was not defective or inadequate, and that the ladder did not otherwise fail to provide protection; rather, injured Plaintiff fell because he lost his balance.  In opposition, Plaintiffs’ failed to raise a triable issue of fact. 
PRACTICE POINT:  The question is often asked of me what would be sole proximate cause when a plaintiff falls from a ladder and now I have a great fact pattern to address that question.  The easy answer is that if the plaintiff simply loses his balance and falls from a ladder which is neither defective nor inadequate it is a sole proximate cause case, but this fact pattern is much more interesting.  What causes the plaintiff to lose his balance is not important as long as it was not the ladder, shaking your head to free your mask does not provide protection to the plaintiff from Summary Judgment. 

12/27/12          Tuccillo v Bovis Lend Lease, Inc.
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_09152.htm
           
While employed by 3rd-party defendant Petrocelli Electric Co., Plaintiff journeyman electrician was installing cables for a security system at the U.S. Post Office in Brooklyn.  Plaintiff was on the building’s third floor, standing on an A-frame ladder, pulling cables down from the fourth floor, when the ladder wobbled and sent Plaintiff to the floor, causing injuries including a fractured skull and ribs.
            Defendant ADT was hired to install CCTV, access controls, an intercom system and a burglar alarm.  ADT subcontracted the wiring aspect of this job to Petrocelli.  Shortly after the incident, Plaintiff brought suit against ADT alleging, among other, violations of § 240(1) and sought partial summary judgment on liability arguing that the fall from the ladder was prima facie proof of a § 240(1) violation, as was ADT’s failure to provide a safety device to prevent Plaintiff’s fall.  ADT opposed and cross-moved for summary judgment dismissing the § 240(1) claim because there was no evidence that ADT had any authority to supervise, direct or control Plaintiff’s work.
            The court denied Plaintiff’s motion and granted ADT’s cross-motion, finding that there was no evidence that ADT delegated supervisory authority over Plaintiff’s work.  Plaintiff moved to reargue and renew, contending there was no dispute that ADT had entered into a contract to install a security system and that it had subcontracted a portion of the work to Petrocelli.  Plaintiff also submitted a copy of ADT’s contract, arguing that once ADT entered into its contract for the installation of the security system, it became responsible under the law for safety compliance with respect to that portion of the renovation project.
            The court denied Plaintiff’s motion to renew, but granted their motion to reargue, and upon re-argument, modified the Order to deny ADT’s motion to dismiss the § 240(1) claim.  The court found that the subcontract, which, in relevant part, delegated to Petrocelli the authority to supervise and control the wiring installation, provided some, but not conclusive, evidence that ADT may have been the statutory agent for the owner.
            The First Department, upon granting Plaintiff renewal, granted Plaintiff’s motion for partial summary judgment on liability on their § 240(1) cause of action against ADT.  According to the First Department, the record revealed that ADT was a statutory agent of the owner, which had hired ADT for the installation of the security system.  ADT had the authority to supervise and control the work being done by Plaintiff pursuant to the terms of its subcontract.  The First Department further held that ADT demonstrated this authority by subcontracting a portion of the installation of the security system to Plaintiff’s employer, Petrocelli.  The fact that Petrocelli possessed concomitant or overlapping authority to supervise the wire installation does not negate ADT’s authority to supervise and control the installation of the wires.  Whether ADT actually supervise Plaintiff is irrelevant.
PRACTICE POINT:  The issue of authority to supervise is always critical.  Where, as here, a defendant has the authority to supervise the plaintiff it is difficult to escape liability.  A careful examination of the contract is an important first step in every labor law case for many reasons.  Looking for contractual indemnification and additional insured status are also important but do not forget to look and see what parties, or potential parties, had the authority to supervise or control the plaintiff’s work is also important and often overlooked.

12/28/12          Bruce v Actus Lend Lease
Appellate Division, Fourth Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_09192.htm
           
Plaintiff commenced this suit seeking damages for injuries he allegedly sustained when a roof truss he was securing to a building under construction broke apart, striking him and knocking him off a ladder.  The truss broke apart when the hoist to which it was attached was raised prematurely. 
            The Fourth Department concluded that Supreme Court properly denied both Plaintiff’s motion for partial summary judgment on the Labor Law § 240(1) and Defendant’s cross-motion for summary judgment dismissing that claim.  A plaintiff is entitled to summary judgment under Labor Law § 240(1) by establishing that he or she was “subject to an elevation-related risk, and that the failure to provide any safety devices to protect the worker from such a risk was a proximate cause of his or her injuries.”  A defendant is entitled to summary judgment dismissing a Labor Law § 240(1) cause of action or claim by establishing that a statutory violation did not occur, an alleged statutory violation was not a proximate cause of the accident, or the plaintiff’s conduct was the sole proximate cause of the accident. 
            Here, the Fourth Department held that Plaintiff was not injured based on the “falling object” theory of recovery because it is undisputed that the truss was rising, not falling, when it struck Plaintiff, thus, the allegedly injury could not have been the result of “the application of the force of gravity to the truss.”  Nevertheless, the Fourth Department held there is an issue of fact on the record regarding the “falling worker” theory of recovery “concerning the adequacy of the protection afforded to plaintiff, both in terms of the safety devices provided to him and the absence of other safety devices … and whether the conduct of Plaintiff was the sole proximate cause of his injuries.”
PRACTICE POINT:  Remember that there are two basic types of 240(1) cases, falling worker and falling object cases.  Here the falling object claim was defeated as the object was rising, not falling and, while the facts are very sparse the decision does provide that there was not sufficient evidence regarding what safety devices were present or absent to allow the court to award Summary Judgment to either party.  Again, if you are moving for Summary Judgment remember that you hold the burden, whether you are the plaintiff or the defendant, and must provide that evidence to the court to be awarded Summary Judgment.

 

12/28/12          Luna v Zoological Socy. of Buffalo, Inc.
Appellate Division, Fourth Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_09227.htm
           
Plaintiff brought suit for injuries he sustained while working as a carpenter on a construction project for Defendant.  Supreme Court properly granted Plaintiff’s motion for partial summary judgment on liability with respect to the Labor Law § 240(1) claim. 
            Plaintiff sustained his initial burden of establishing he was injured as the result of a fall from an elevated work surface and that Defendant failed to provide a sufficient safety device.  In opposition, Defendant failed to raise a triable issue of fact whether Plaintiff’s “own conduct, rather than any violation of Labor Law § 240(1), was the sole proximate cause of the accident.”
            The Fourth Department rejected Defendant’s contention that there is an issue of fact regarding whether plaintiff was a recalcitrant worker whose own actions were the sole proximate cause of the accident.  Although Defendant submitted evidence that Plaintiff was instructed not to work in a particular area and violated those instructions, “the nondelegable duty imposed upon the owner and general contractor under Labor Law § 240(1) is not met merely by providing safety instructions or by making other safety devices available, but by furnishing, placing and operating such devices so as to give a worker proper protection”, which was not done here.  Thus, “the mere failure by plaintiff to follow safety instructions does not render plaintiff a recalcitrant worker.” 
PRACTICE POINT:  This is a difficult issue for many to grasp.  Simply telling the plaintiff not to do something is not sufficient to establish recalcitrance.  You need to provide a safe method for completing the assigned task, not simply tell him what to do or what not to do.

 

 

Labor Law Section 241(6)

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

 

12/11/12          Guryev v. Tomchinsky
Court of Appeals of New York
http://www.nycourts.gov/reporter/3dseries/2012/2012_08443.htm

Condominiums and their boards can breathe a sigh of relief as the Court of Appeals has determined they do not qualify as “owners” under the labor law.  The plaintiff sustained injury while using a nail gun to install base moldings in an apartment owned by Gregory and Marina Tomchinsky.   The apartment was located in a 47-story building, which was organized as a condominium.  Prior to the renovation of the Tomchinskys’ apartments, the board approved the project, as required by the condominium by-laws, subject to the terms and conditions of an Alteration Agreement entered into by Mr. Tomchinsky, as unit owner, and the board, as agent, for the building’s other unit owners. 

Plaintiff brought an action against the Tomchinskys, the condominium, the Board of Managers, and the board’s managing agent (collectively “the condominium defendants”).  In considering whether the condominium defendants qualified as “owners,” the Court first analyzed Labor Law § 241(6), which requires “owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work,” to provide reasonable and adequate protection and safety for workers and to comply with specific safety rules promulgated by the Commissioner of the Department of Labor. 

Plaintiff took the position that because the condominium owned the land beneath the building, and the board was its agent, they were proper defendants.  In support, plaintiff relied on Gordon v. Eastern Ry. Supply, a case in which the plaintiff was injured while cleaning the exterior of a railroad car on property leased by Eastern.  In that case, the court found that the presence of the railway car on Eastern’s property was the direct result of its action and established a sufficient nexus for liability to attach to it as owner.    

Here, however, the Court found that there was no lessor-lessee relationship between the condominium and the Tomchinskys.  The Tomchinskys owned the apartment in fee simple absolute, and the apartment was separate and apart from the land beneath it.  Further, the presence of the Alteration Agreement did not change that situation.  The agreement reflected nothing more than the board’s interest in making sure that the proposed renovations were carried out in a way that safeguarded the integrity of the building, other units and common areas; and inconvenienced other residents as little as possible.  The agreement did not vest the board with authority to determine which contractors to hire, control the renovation work or insist that proper safety practices be followed.  Accordingly, the Court affirmed the order of the Appellate Division granting the condominium and its agents’ motion for summary judgment.

Notably, Chief Judge Lippman and Judge Ciparick dissented.  In the dissent, written by the Chief Justice, he argued that the absence of title does not necessarily dictate dismissal of the action as to the condominium.  He noted that this Court has recognized the principle that Labor Law “owner” liability may be imposed on non-owners where they have an interest in the property and have acted as owners in connection with contracting for improvement.  The Chief Justice determined that it was clear from the Alteration Agreement that the condominium continued to possess certain prerogatives of ownership with respect to the subject unit.  Specifically, among other things, alterations were subject its approval, and the condominium retained the power to insist upon compliance with the Industrial Code worker safety provisions, even within a residential unit.  Thus, the Chief Justice found that a condominium retained a propriety interest in the owners’ units.  Further, he relied upon case law recognizing a residential cooperative corporation as an “owner,” and argued that to make a different finding here lauds form over substance. 

12/21/12          Kin v. State
Appellate Division, Fourth Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_08887.htm

Claimant commenced this action seeking damages for injuries she sustained when she fell from a ladder while working on a bridge reconstruction project.  At the time of the accident, she was using the top half of an extension ladder in an attempt to gain access to a scaffold that had been erected under the bridge. When claimant was four or five rungs from the top of the ladder, the bottom of the ladder slid out from beneath her, causing her to fall approximately 10 feet to the ground.

With respect to claimant’s Labor Law § 241(6) claim, the Appellate Division agreed with the lower court that dismissed the claim.  The 241(6) claim was based on defendant’s alleged violation of two provisions of the Industrial Code.  12 NYCRR 23–1.21(b)(4)(iv), concerning the securement of ladders from which work is being performed, was inapplicable because claimant was not performing work from a ladder; instead, she was using the ladder to gain access to the scaffold from which she intended to perform the assigned work.  Further, 12 NYCRR 23–1.21(a), which sets forth a general standard of care, was not sufficiently specific to support a section 241(6) claim.

 

12/13/12          Doodnath v. Morgan Contracting Corp.
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_08626.htm

Plaintiff, a truck driver, was injured while he was stacking planks and panels from a dismantled sidewalk bridge and placing them on a flatbed truck.  He was holding a 100-pound, 4’ by 8’ panel, standing on the back of a truck when his foot slipped on a wet, dirty plank that had previously been placed on a pile in the truck.  Plaintiff’s 241(6) claim, predicated on 23-1.7(d), was dismissed as the slip was not due to a slippery work surface, but rather because he placed his foot on an allegedly wet and dirty plank that was stacked on top of other planks, 16 inches off the surface of the truck bed. 

12/12/12          Zastenchik v. Knollwood Country Club
Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_08515.htm

Plaintiff, a plumber, was allegedly injured when his foot became stuck in 10 inches of mud.  This occurred while he was retrieving pipes to be installed in a pro shop being constructed on a site owned by defendant. 

The Appellate Division reversed the finding of the trial court denying the motion to dismiss plaintiff’s 241(6) claim.  It found that plaintiff’s claim, predicated on 12 NYCRR 23-1.7(d), (e)(1), and (e)(2), was unsupported as he did not slip or trip. 

 

12/4/12            Garcia v. DPA Wallace Avenue I, LLC
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_08254.htm

Plaintiff, an elevator mechanic, was in an elevator pit preparing to dismantle components of the elevator when the “selector tape,” a thin strip of metal, broke and “snapped” upwards, cutting his hand.

The Appellate Division found that Labor Law § 241(6), as predicated on Industrial Code § 23–1.7(a)(1), was  inapplicable, as plaintiff was not subject to the overhead hazard of falling objects. 
Further, the Appellate Division agreed with the trial court that plaintiff’s expert’s affidavit should have been rejected as the affidavit was based only on his review of the deposition testimony, and he did not examine the premises.

 

Labor Law Section 200 and Common Law Negligence

                                                                                    by:    V. Christopher Potenza
                                                                                             (716) 849-8933
                                                                                             [email protected]
Apparently the judiciary was not bogged down with office holiday parties, client parties, vendor sponsored parties, family get-togethers, cookie parties, tree decorating parties, school pageants, ill-fated December birthday parties, shopping, returning, Hanukah, Kwanzaa, Festivus, St. Nicholas Day, Yule Tide, the Feast of Seven Fishes, Boxing Day, sleigh rides with Santa, breakfast with Santa, lunch with Santa, Happy Hour with Santa, New Year’s Eve, National Bouillabaisse Day (Dec. 14th), and a host of other opportunities to over indulge.  There is a bevy of Labor Law 200 decisions to close out 2012.   December’s bounty of cases is unusual in volume, but not in content.  Most cases stick to the prevailing themes, however more than few of December’s submissions cite the failure of the defendant to meets its prima facie burden on summary judgment.  Practice Tip:  Don’t give the Court an easy out by failing to meet your burden on summary judgment.  You are just wasting time and resources. 
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. 
12/13/2012      Doodnath v. Morgan Contracting Corp., 2012 N.Y. Slip Op. 08626
Appellate Division, First Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08626.htm

Plaintiff, a truck driver employed by defendant subcontractor Regional Scaffolding & Hoisting Co, was injured while he was stacking planks and panels from a dismantled sidewalk bridge and placing them in Regional's flatbed truck. He was holding a 100–pound, 4′ by 8′ panel, standing in the back of the truck when his right foot slipped on a wet, dirty plank that had previously been placed on a pile in the truck. Defendants Cornell University, as property owner, and Morgan Contracting, as general contractor, were entitled to summary judgment dismissing plaintiff's complaint and the cross-claims against them alleging violations of Labor Law § 200.

The evidence demonstrated that Regional controlled the activity of its workers during the disassembly of the sidewalk bridge and the stacking of the bridge materials and that plaintiff was injured as a result of the manner in which he performed his work. There is no evidence that Morgan or Cornell controlled the manner in which the work was performed. In addition, Morgan and/or Cornell lacked timely notice of the specific condition which allegedly caused plaintiff to fall (i.e., his stacking and stepping on a purported slippery plank in the back of Regional's truck).


12/13/2012      Picaso v. 345 East 73 Owners Corp., 2012 N.Y. Slip Op. 08654
Appellate Division, First Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08654.htm

The plaintiff commenced this action against a building owner (45 East 73 Owners Corp.) and manager (Goodstein Management, Inc.), seeking damages for injuries sustained in trip and fall on step.  The Supreme Court, Bronx County, granted summary judgment to the defendant owner and manager dismissing the Labor Law § 200 and common-law negligence causes of action.  The First department reversed.  

The First Department held that Plaintiff's Labor Law § 200 and common-law negligence claims should not be dismissed since defendants failed to demonstrate that they lacked notice of a hazardous condition that allegedly caused plaintiff to trip and fall on a staircase in the building they owned and managed. A manager for defendant owner testified that he performed daily inspections of staircases in the building to determine whether there were any defects requiring repairs. In light of these regular inspections and plaintiff's testimony that he noticed the defective condition of the step two weeks before the accident occurred, triable issues of fact exist whether defendants had constructive notice of the condition.

 

12/12/2012      Forssell v. Lerner, 2012 N.Y. Slip Op. 08654
Appellate Division, Second Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08486.htm

The plaintiff allegedly was injured while working as a carpenter at a construction project on property owned by the defendant Randy Lerner. He alleges that he was injured while using his table saw, which he had plugged into an electrical outlet that was also being used to power five other electrical devices. He alleges that the “overload” caused a power surge, which caused the table saw to “skip,” causing his hand to come in contact with the saw blade.

While plaintiff’s cause of action against the manufacturer of the saw, Makita, sounded in products liability and design defect, his cause of action against the property owner, Lerner was for common-law negligence and a violation of Labor Law § 200.  In this case, in which the plaintiff's injuries allegedly arose out of the means and methods of the work, the property owner may be held liable for common-law negligence or a violation of Labor Law § 200 only if he or she had “the authority to supervise or control the performance of the work.” Contrary to Lerner's contention, the vague and conclusory assertions in his affidavit in support of his motion were insufficient to make a prima facie showing that he did not have the authority to supervise or control the performance of the plaintiff's work.  

 

12/12/2012      Zastenchik v. Knollwood Country Club, 2012 N.Y. Slip Op. 08515
Appellate Division, Second Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08515.htm

The plaintiff, a plumber, was allegedly injured when his foot became stuck in the mud to the depth of about 10 inches as he was retrieving pipes to be installed in a pro shop being constructed at a site owned by the Knollwood Country Club.  Aqua Plumbing & Heating Corp, a subcontractor and plaintiff’s employer, was denied summary judgment dismissing the causes of action to recover damages for common-law negligence and a violation of Labor Law § 200.  The Court reasoned that Labor Law § 200 applies, inter alia, to owners and contractors who either created a dangerous condition or had actual or constructive notice of it.  Proof that a dangerous condition is open and obvious does not preclude a finding of liability but is relevant to the issue of the plaintiff's comparative negligence.  Here, Aqua did not establish, prima facie, its entitlement to judgment as a matter of law dismissing the causes of action to recover damages for common-law negligence and a violation of Labor Law § 200, as it failed to demonstrate that the alleged defect, deep mud, did not constitute a dangerous condition.

Wholly unexplained in this opinion is why the Workers’ Compensation bar did not preclude a claim against plaintiff’s employer in this case?  Perhaps his employer, Aqua, did not carry Workers’ Compensation coverage, which would thus permit a tort action against his employer?  Inquiring minds want to know…

12/04/2012      Garcia v. DPA Wallace Avenue I, LLC, 2012 N.Y. Slip Op. 08254
Appellate Division, First Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08254.htm

Plaintiff, an elevator mechanic, was in an elevator pit preparing to dismantle components of the elevator when the “selector tape,” a thin strip of metal, broke and “snapped” upwards, cutting his hand. He testified that the breakage of the tape was caused by the loosening of the shift to which the tape was connected, allowing the tape to bend, and the tension put on the tape created by gravitational force on a weight in the overhead room, which essentially acts as a counterweight to keep the tape taut.

The court also properly dismissed plaintiff's Labor Law § 200 claim. To be held liable under the statute, which is the codification of the common-law negligence standard, an owner must have had the authority to control the activity bringing about the injury, or actual or constructive notice of the hazardous condition. The evidence shows that the owner did not have the authority to control plaintiff's work. The record contains no evidence that the owner had actual notice of the condition that caused plaintiff's injuries. That the owner was aware of the elevator's general unsafe condition is insufficient to establish constructive notice of the particular hazardous condition that caused plaintiff's injuries.

That’s it for Labor Law 200 musings from 2012.  Happy New Year to all!  If you are reading this on January 3rd, I hope you are enjoying one of the three recognized holidays on this date:  Festival of Sleep Day, Fruit Cake Toss Day, and Humiliation Day.

 

Indemnity Issues in Labor Law

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

12/13/12          Picaso v 345 E. 73 Owners Corp.
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_08654.htm

Plaintiff commenced this action after he tripped and fell on a staircase at a jobsite owned by defendant.  As part of the lawsuit, plaintiff asserted a Common Law Negligence/Labor Law § 200 claim against defendant therein alleging that the owner had constructive notice of a defective condition prior to the incident. 

Upon reviewing the motion papers, the Court noted that a question of fact existed as to owner’s notice of the allegedly defective condition.  As such, defendant/owner’s motion to dismiss the Labor Law § 200 claim was denied. 

At the same time, third-party defendant Tower’s motion to dismiss the common law indemnity claim asserted by owner was granted.  Clearly, plaintiff had not sustained a grave injury.  Moreover, the Court noted that the contractual indemnity clause relied upon by the owner was in violation of GOL § 5-322.1  Thus, the Court noted that if owner is assigned any percentage of negligence its claims for contractual indemnity will be voided.

Peiper’s PointThis case reminds us that an indemnity clause is not voided simply because it does not have “fullest extent permitted by law” savings language (or some other carve out for the indemnitee’s own negligence).  Rather, in addition to language which violates the statute, the party seeking to void the indemnity agreement must also establish negligence on behalf of the party seeking indemnity. 

 

12/13/12          Doodnath v Morgan Contr. Corp.
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_08626.htm

Plaintiff commenced this action after falling in the course of his employment.  As plaintiff only asserted violations of Labor Law §§ 200 and 241(6), respectively, we presume that plaintiff’s injuries were not “gravity related.”  In any event, defendant’s moved to dismiss the aforementioned Labor Law claims, while, at the same time, moving for summary judgment against third-party defendant seeking an award of contractual indemnification. 

Where, as here, the claims against defendant were dismissed, the Court ruled that any subsequent motion for indemnification was subsequently rendered moot.  Accordingly, the indemnity claims were dismissed as a matter of law.

 

12/12/12          Zastenchik v Knollwood Country Club
Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_08515.htm

As noted above, plaintiff sustained injury when his foot became “stuck in the mud.”   Plaintiff’s claims were premised upon Labor Law § 200/Common Law Negligence.  Thereafter, defendants moved for summary judgment on their third-party clams for contractual indemnification.

 In the instant case, the contractual indemnity language provided that Aqua (third-party defendant) would only indemnify defendant’s “against claims, damages, losses and expenses…only to the extent caused in whole or in part by negligent acts or omissions of Aqua.” Accordingly, where defendants could not establish negligence against Aqua, its motion for summary judgment failed.

12/13/12          Sosa v 46th Street Development, LLC
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_08642.htm

Plaintiff was injured at a large construction project in New York City.  The project was owned by 46th Street Development.  Plaza was retained as a general contractor at the jobsite.  Plaza, in turn, retained Five Star to serve as the contractor responsible for the installation of electric.  Plaza also retained Port Morris to perform work at the project.

During the course of his employment with Port Morris, plaintiff was injured when he was shocked by a live wire.  As a result of his injuries, plaintiff commenced a Labor Law claim against 46th Street Development, Plaza and Five Star.  Plaza cross-claimed for contractual indemnification over and against Five Star pursuant to the terms of the Plaza/Five Star contract.  While Five Star did not dispute that the indemnity provision would apply to the loss at hand, it maintained that the clause at issue was in violation of General Obligations Law § 5-322.1. 

In support of its argument, Five Star noted that Plaza was responsible for coordinating the safety measures at the project.  Moreover, as this was a 42 story build out, Five Star presented evidence that how, and when, each floor was electrified was controlled, exclusively, by Plaza.  In essence, as each unit would be finished, Plaza would notify Five Star to turn power on to those particular units.  Throughout the course of the project, however, Five Star noticed that other contractors had been turning on power to individual units.  This was done, as far as Five Star knew, without the consent of either Five Star or Plaza.  However, Plaza was aware of this issue, and had been made aware it again on the day before the incident. 

Based upon this knowledge, Five Star posited that Plaza had constructive notice of a potentially defective condition.  Under such circumstance, the Court noted, Plaza could not be said to have met its burden to establish summary judgment.  Accordingly, where the possibility of Plaza’s negligence existed, the matter was denied on a question of fact.

In a well-reasoned dissent, Justice Catterson noted that regardless of the prior acts of other trades at the project site, there was no evidence that Plaza had knowledge (constructive or actual) of a potentially dangerous condition in the unit where plaintiff sustained injury.  Moreover, even if Plaza did have notice, there was no evidence that it had enough time to do anything about it.  Accordingly, Justice Catterson believed that Plaza had met its burden and would have granted Plaza’s motion for summary judgment. 

 

12/06/12          Gunderman v Sure Connect Cable Installation, Inc.
Appellate Division, Third Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_08393.htm

Plaintiff sustained injury when he fell from a ladder while upgrading an existing cable supply line.  At the time of the incident, plaintiff was an independent contractor that had been retained by Sure Connect.  Sure Connect had previously been retained to perform the upgrade by Time Warner. 

As a result of the incident, plaintiff sued both Time Warner and Sure Connect alleging violations of Labor Law § 240(1).  In turn, Time Warner cross-claimed against Sure Connect therein seeking an award of contractual indemnification.  Sure Connect then commenced a third-party action directly against plaintiff seeking common law, as well as contractual, indemnification.  

With regard to Time Warner’s contractual indemnity claim, the Court  noted that there was no evidence that Time Warner “directed, supervised or controlled” plaintiff’s actions.  Where, as here, there was no direct supervisory control, the Court reasoned that Time Warner was free of negligence.  Accordingly, its motion for contractual indemnity was granted.  In so holding, the Court also noted that Time Warner’s right to retain “general supervisory control” was insufficient to establish a common law negligence claim.

In addition, the Court dismissed Sure Connect’s claim against Gunderman.  Because liability under Labor Law § 240(1) is absolute and non-delegable, the Court refused to permit Sure Connect to shift its liability, in whole or in part, to the injured party. 

 

 

241(6) REGULATIONS; SPECIFIC OR GENERAL
                                                                                   
                                                                                             by: Marc A. Schulz
                                                                                             (716) 849-8900
                                                                                             [email protected]

            12 NYCRR § 23-1.7 – Protection in Construction, Demolition and Excavation Operations – (a) Overhead hazards.  (1) Every place where persons are required to work or pass that is normally exposed to falling material or objects shall be provided with suitable overhead protection. Such overhead protection shall consist of tightly laid sound planks at least two inches thick full size, tightly laid three-quarter inch exterior grade plywood or other material of equivalent strength. Such overhead protection shall be provided with a supporting structure capable of supporting a loading of 100 pounds per square foot.  (2) Where persons are lawfully frequenting areas exposed to falling material or objects but wherein employees are not required to work or pass, such exposed areas shall be provided with barricades, fencing or the equivalent in compliance with this Part (rule) to prevent inadvertent entry into such areas.  (b) Falling hazards.  (1) Hazardous openings.  (i) Every 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).  (ii) Where free access into such an opening is required by work in progress, a barrier or safety railing constructed and installed in compliance with this Part (rule) shall guard such opening and the means of free access to the opening shall be a substantial gate. Such gate shall swing in a direction away from the opening and shall be kept latched except for entry and exit.  (iii) Where employees are required to work close to the edge of such an opening, such employees shall be protected as follows: (a) Two-inch planking, full size, or material of equivalent strength installed not more than one floor or 15 feet, whichever is less, beneath the opening; or (b) An approved life net installed not more than five feet beneath the opening; or (c) An approved safety belt with attached lifeline which is properly secured to a substantial fixed anchorage.  (2) Bridge or highway overpass construction.  (i) Approved safety belts shall be provided for and used by persons employed at elevations greater than 30 feet above land or water during bridge or highway overpass construction or at any elevation during structural or construction work performed over highways or railroads open to public traffic.  (ii) Scaffolds, platforms or approved life nets may be provided as alternatives to approved safety belts. When used, such alternatives shall be installed not more than five feet below the lower edge of the structural members on or above which the persons to be protected are working.  Such scaffolds, platforms or life nets shall be installed and maintained at all times when persons are working except when such safety protection would interfere with the placement of structural members or assemblies, in which case approved safety belts shall be worn.  (c) Drowning hazards. Where any person is exposed to the hazard of falling into water beneath his work location in which he might drown, equipment for the prompt rescue of such person from the water shall be provided. Such equipment shall consist of a manned boat of a size suitable for the existing water conditions and area. Such boat shall be equipped with oars, with United States Coast Guard approved life preservers, with a life ring fastened to a line not less than 50 feet in length and with a boat hook. Such boat shall continuously patrol the area beneath the work location at all times when any person is exposed to the falling and drowning hazard.  (d) Slipping hazards. Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing.  (e) Tripping and other hazards.
(1) Passageways. All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping. Sharp projections which could cut or puncture any person shall be removed or covered.  (2) Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed.  (f) Vertical passage. Stairways, ramps or runways shall be provided as the means of access to working levels above or below ground except where the nature or the progress of the work prevents their installation in which case ladders or other safe means of access shall be provided.  (g) Air-contaminated or oxygen deficient work areas. The atmosphere of any unventilated confined area including but not limited to a sewer, pit, tank or chimney where dangerous air contaminants may be present or where there may not be sufficient oxygen to support life shall be tested by the employer, his authorized agent or by a designated person before any person is suffered or permitted to work in such area. Such testing shall be in accordance with the provisions of Industrial Code Part (rule) 12 relating to the “Control of Air Contaminants” and such areas shall be subject to the other pertinent provisions of Industrial Code Part (rule) 12 and of Industrial Code Part (rule) 18 relating to “Exhaust Systems”.  (h) Corrosive substances. All corrosive substances and chemicals shall be so stored and used as not to endanger any person. Protective equipment for the use of such corrosive substances and chemicals shall be provided by the employer.
            Regulation § 23-1.7 not shown applicable where plaintiff injured when he tried to use uncovered string-pull starter to start steamroller and his hand was pulled into rapidly moving pulley.  Pereira v Quogue Field Club of Quogue, supra; see also Heizman v Long Island Lighting Co., 251 AD2d 289, 674 NYS2d 59 (2d Dept. 1998) (that provision not applicable where plaintiff was allegedly injured when his foot became entangled in some brush at base of pole as he was getting ready to ascend pole); but cf. Tomyuk v Junefield Associates, 57 AD3d 518, 868 NYS2d 731 (2d Dept. 2008) (holding § 23-1.7 sufficiently specific to support a § 241(6) claim and applicable where worker fell off wooden scaffold while working on one-family home). 
            Regulation § 23-1.7(a) contains a specific positive command sufficient to support a § 241(6) claim.  Roosa v Cornell Real Property Servicing Inc., 38 AD3d 1352, 831 NYS2d 784 (4th Dept. 2007) (evidence of prior incidents of branches falling from trees sufficient to create question of fact as to whether work site was “normally exposed to falling material or objects”); Zervos v New York, 8 AD3d 477, 779 NYS2d 106 (2d Dept. 2004); Terry v Mutual Life Ins. Co. of New York, 265 AD2d 929, 695 NYS2d 808 (4th Dept. 1999); Murtha v Integral Construction Corp., 253 AD2d 637, 677 NYS2d 338 (1st Dept. 1998); see also Belcastro v Hewlett-Woodmere Union Free School District No. 14, 286 AD2d 744, 730 NYS2d 535 (2d Dept. 2011) (provision applicable where plaintiff, while working at ground level, was struck by piece of wood that allegedly fell or was thrown off roof); but cf. Gonzalez v Glenwood Mason Supply Co., Inc., 41 AD3d 338, 839 NYS2d 74 (1st Dept. 2007) (provision prescribing standards for overhead protection for work and passage areas normally exposed to falling material or objects is inapplicable to areas underneath stationary hoists); Amato v State, 241 AD2d 400, 660 NYS2d 576 (1st Dept. 1997) (although § 23-1.7(a) sufficiently specific, provision not applicable where there was no evidence that plaintiff was injured in area where workers were “normally exposed to falling objects” and where overhead work was not primary focus of worksite); Klien v Monroe, 219 AD2d 846, 632 NYS2d 343 (4th Dept. 1995) (holding provision applies to areas where workers are normally exposed to falling objects and, therefore, does not apply where plaintiff was struck by a metal window curtain frame that had previously been placed by plaintiff and two co-workers on a three-foot high concrete wall where it was to be installed); Knudsen v Pentzien, Inc., 209 AD2d 909, 619 NYS2d 192 (3d Dept. 1994) (plaintiff was cutting branches from a felled tree when he was struck by a falling tree that had been cut by another logger; court held § “23-1.7(a) not applicable to tree-felling work” as it “contemplates protection against falling objects associated with other overhead activity under different circumstances). 
            Regulation § 23-1.7(a)(1) prescribing the size, length, width and layout of planks used to protect workers from overhead falling objects applicable where worker removing debris from bottom of elevator shaft was injured by piece of wood that fell from higher floor.  Parrales v Wonder Works Construction Corp., 55 AD3d 579, 866 NYS2d 227 (2d Dept. 2008); but cf.
Marin v AP-Amsterdam 1661 Park LLC, 60 AD3d 824, 875 NYS2d 242 (2d Dept. 2009) (holding § 23-1.7(a)(1) inapplicable where plaintiff struck on head by previously attached bracket which became dislodged and worksite not “normally exposed” to falling brackets; court distinguished § 23-1.8(c)(1), which requires only “a danger of being struck by falling objects”); see also Buckley v Columbia Grammar and Preparatory, 44 AD3d 263, 841 NYS2d 249 (1st Dept. 2007) (holding provision not applicable where elevator-shaft worker not normally exposed to hazard of dislodged falling counterweights); Perillo v Leigh Construction Group, Inc., 17 AD3d 1136, 795 NYS2d 808 (4th Dept. 2005) (holding provision not applicable where plaintiff not normally exposed to falling material or objects).  However, § 23-1.7(a)(1) not a valid basis for § 241(6) cause of action where open, uncovered shaft was reasonably needed for hoisting steel stringers.  Boyle v 42nd Street Development Project, Inc., 38 AD3d 404, 835 NYS2d 7 (1st Dept. 2007).
            Regulation § 23-1.7(a)(2) requiring provision of barricades, fencing or the equivalent to prevent persons lawfully frequenting areas exposed to falling material or objects from inadvertently entering such areas inapplicable where plaintiff was “required to work or pass” in or through area where he/she was struck by falling object.  Perillo v Lehigh Construction Group, Inc., supra; see also McLaughlin v Malone & Tate Builders, Inc., 13 AD3d 859, 787 NYS2d 157 (3d Dept. 2004) (holding provision not applicable where worker not normally exposed to falling objects injured by block accidentally pushed from fourth to third level of scaffold). 
            Regulation § 23-1.7(b) is sufficiently specific to support a Labor Law § 241(6) cause of action (O’Connor v Lincoln Metrocenter Partners, L.P., 266 AD2d 60, 698 NYS2d 632 [1st Dept. 1999]; Williams v G.H. Development and Construction Company, Inc., 250 AD2d 959, 672 NYS2d 937 [3d Dept. 1998]; Ozzimo v H.E.S., Inc., 249 AD2d 912, 672 NYS2d 197 [4th Dept. 1998]), and applies where worker fell into excavation (Scarso v M.G. General Construction Corp., 16 AD3d 660, 792 NYS2d 546 [2d Dept. 2005]); applicable where plaintiff, while traversing mat above pit, slipped and fell through 12 inch by 12 inch hole in mat (Gottstine v Dunlop Tire Corp., 272 AD2d 863, 709 NYS2d 259 [4th Dept. 2000]); applicable where plaintiff claimed he fell between ceiling joists (Pilato v Nigel Enterprises, Inc., 48 AD3d 1133, 850 NYS2d 799 [4th Dept. 2008]); evidence that coworker already in trench when plaintiff fell sufficient to show violation (Bell v Bengomo Realty, Inc., 36 AD3d 479, 829 NYS2d 42 [1st Dept. 2007]); applicable where plaintiff and coworker were carrying scaffold between building and swimming pool at building renovation project when plaintiff stepped on edge of pool, the tile cracked, and plaintiff fell to bottom or pool (Mazzu v Benderson Dev. Co., supra). 
            Regulation § 23-1.7(b), which requires that every hazardous opening be guarded by a substantial cover fastened in place or by a safety railing installed in compliance with the Industrial Code, is inapplicable where plaintiff injured while attempting to descend multi-level scaffold with allegedly inadequate planking because plaintiff did not fall into hazardous opening.  Harris v Hueber-Breuer Construction Co., Inc., 67 AD3d 1351, 890 NYS2d 235 (4th Dept. 2009).   Regulation § 23-1.7(b) was held inapplicable where plaintiff fell from stairway landing (Rookwood v Hyde Park Owners Corp., 48 AD3d 779, 853 NYS2d 127 [2d Dept. 2008]); inapplicable where worker stepped out of lowered aerial bucket and fell into old drainage ditch overgrown with weeds (Kaleta v New York State Electric & Gas Corp., 41 Ad3d 1257, 837 NYS2d 824 [4th Dept. 2007]); inapplicable where worked injured by falling into a whole as result of basement floor collapse during demolition of brick wall with jackhammer (Bell v Bengomo Realty, Inc., supra.); inapplicable where plaintiff’s fall was less than 15 feet (Dzieran v 1800 Boston Road, LLC, 25 AD3d 336, 808 NYS2d 36 [1st Dept. 2006]).  Regulation § 23-1.7(b), although sufficiently specific, did not apply where plaintiff did not fall into a “hazardous opening” (Boss v Integral Construction Corp., 249 AD2d 214, 672 NYS2d 92 [1st Dept. 1998]); not applicable where plaintiff, who was standing above drop ceiling, lost his balance, fell and landed straddling the rafter upon which he was standing with his right foot going through a ceiling panel (Bennion v Goodyear Tire & Rubber Co., 229 AD2d 1003, 645 NYS2d 195 [4th Dept. 1996]); inapplicable where plaintiff fell while painting side of building located on slope of hill upon which a series of descending level terrace areas had been constructed because the elevation difference that caused plaintiff’s fall was not an “opening” (DeLong v State St. Assocs., 211 AD2d 891, 621 NYS2d 172 [3d Dept. 1995]). 
            Regulation § 23-1.7(b)(1) requires every hazardous opening be guarded by a substantial cover fastened in place or by a safety railing installed in compliance with the Industrial Code, was held inapplicable where covering the opening in question would have been inconsistent with an integral part of the job (Salazr v Novalex Contracting Corp., 18 N.Y.3d 134 [2011]); inapplicable where worker fell from unguarded edge of elevated concrete platform while walking and talking to foreman (Pope v Safety and Quality Plus, Inc., 74 AD3d 1040, 903 NYS2d 124 [2d Dept. 2010]); inapplicable where plaintiff fell when joists gave way (Forschner v Jucca Co., 63 AD3d 996, 883 NYS2d 63 [2d Dept. 2009]); inapplicable to 10-to 12-inch gap, which is not a “hazardous opening” (Urban v No. 5 Times Square Development, LLC, 62 AD3d 553, 879 NYS2d 122 [1st Dept. 2009]); inapplicable to opening created when 2-foot by 2-foot tile resting 18 inches above subfloor became dislodged because opening did not present significant depth and size (Romeo v Property Owner (USA) LLC, 61 AD3d 491, 877 NYS2d 48 [1st Dept. 2009]); inapplicable where opening in planks that buckled under plaintiff was not large enough for a person to fit through (Hernandez v Columbus Centre, LLC, 50 AD3d 597, 857 NYS2d 84 [1st Dept. 2008]).  Although regulation § 23-1.7(b)(1) sufficiently specific, 1 ½-to 2-feet deep trench not “hazardous opening” within meaning of rule (Barillaro v Beechwood RB Shorehaven, LLC, 69 AD3d 543, 894 NYS2d 434 [2d Dept. 2010]); inapplicable where worker fell from floating platform into creek (Dooley v Peerless Importers, Inc., 42 AD3d 199, 837 NYS2d 720 [2d Dept. 2007]); inapplicable where plaintiff working on elevated loading dock fell through unsecured doors to ground 20 feet below (Godoy v Baisley Lumber Corp., 40 AD 920, 837 NYS2d 682 [2d Dept. 2007]); inapplicable where plaintiff fell from top of concrete wall since there was no hole or hazardous opening where plaintiff was walking (Garlow v Chappaqua Central School Dist., 38 AD3d 712, 832 NYS2d 627 [2d Dept. 2007]); inapplicable where worker injured as result of basement floor collapse during demolition of brick wall with jackhammer (Balladares v Southgate Owners Corp., supra); inapplicable to welder’s work in replacing wooden staircase with iron one (Contrera v Gesher Realty Corp., 1 AD3d 111, 766 NYS2d 200 [1st Dept. 2003]); inapplicable to drainpipe opening approximately 12 inches in diameter and 8 inches deep (Messina v New York, 300 AD2d 121, 752 NYS2d 608 [1st Dept. 2002]). 
            Regulation § 23-1.7(b)(1) is potentially applicable to accident where plaintiff stepped down and broke through both subflooring and sheetrock ceiling of first floor (Bonse v Katrine Apartment Assoc., 28 AD3d 990, 813 NYS2d 578 [3d Dept. 2006]); potentially applicable where worker injured when plywood covering hole over which he was standing slid, causing him to fall into hole (Olsen v James Miller Marine Service, Inc., 16 AD3d 169, 791 NYS2d 92 [1st Dept. 2005]); potentially applicable where plaintiff’s evidence indicated that elevator pit opening, which was adjacent to his work area, was large enough for a person to fall through (Wells v British American Development Corp., 2 AD3d 1141, 770 NYS2d 161 [3d Dept. 2003]); where unsecured top section of second-floor stairway collapsed causing plaintiff to fall into building’s basement through a hole in first floor, question of fact was presented as to whether failure to cover hole in violation of regulation was a proximate cause of plaintiff’s injuries (Milanese v Kellerman, 41 AD3d 1058, 838 NYS2d 256 [3d Dept. 2007]).  Regulation § 23-1.7(b)(1), which requires planking to be placed at least 15 feet beneath hazardous openings where workers are required to work close to edge of such openings, applies only where opening must remain open for work to progress; regulation inapplicable where worker spreading fresh concrete on basement floor fell into trench that was not being filled with concrete at that time.  Salazar v Novalex Contracting Corp., supra.
           Regulation § 23-1.7(c) requiring that manned boat, equipped as prescribed, continuously patrol area beneath work location at all times when any person is exposed to drowning hazard and further requires that each boat must be available for prompt rescue where workers are exposed to hazard of falling into water beneath work location, potentially applicable where worker fell from fender system at base of bridge; evidence was that fender was place from which work was performed.  Collado v New York, 72 AD3d 458, 900 NYS2d 10 (1st Dept. 2010).
            Regulation § 23-1.7(d) provides that “employers shall not suffer or permit any employees to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition,” held sufficiently specific to support a Labor Law § 241(6) cause of action.  Rizzuto v L.A. Wenger Contracting Co., Inc., 91 NYS 343 (1998).  Regulation § 23-1.7(d) held applicable or potentially applicable where plaintiff worker slipped on mud accumulated on battery cover of backhoe, which served as step and only means of access to backhoe cab (Fassett v Wegmans Food Markets, Inc., 66 AD3d 1274, 888 NYS2d 635 [3d Dept. 2009]); where worker allegedly slipped and fell from roof of residence while installing satellite dish (Mergenhagen v Dish Network Service, LLC, 64 AD3d 1170, 883 NYS2d 405 [4th Dept. 2009]); where worker allegedly slipped on muddy cross-piece of “chicken ladder” used as ramp to gain access to employer’s shanty (Conklin v Triborough Bridge and Tunnel Authority, 49 AD3d 320, 855 NYS2d 54 [1st Dept. 2008]); where plaintiff working alone in raise on unsecured ladder (Kwang Ho Kim v D & W Shin Realty Corp., 47 AD3d 616, 852 NYS2d 138 [2d Dept. 2008]);  applicable where possible slippery condition of ladder (Smith v Fayetteville-Manlius Central School Dist., 32 AD3d 1253, 822 NYS2d 832 [4th Dept. 2006]); applicable even though alleged slipping hazard was integral part of work (Hageman v Home Depot U.S.A., Inc., 45 AD3d 730, 846 NYS2d 302 [2d Dept. 2007]); question of fact whether presence of loose cardboard on countertop created slippery condition on elevated work surface (Partridge v Waterloo C.S.D., 12 AD3d 1054, 784 NYS2d 767 [4th Dept. 2004]); tiles covered with mastic remover where question of fact existed as to whether plaintiff slipped on tiles and whether it was improper for mastic to be on tiles (Earl v Starwood Ceruzzi Saratoga, LLC, 9 AD3d 879, 780 NYS2d 461 [4th Dept. 2004]); where plaintiff slipped and fell in stairway at construction site (Giglio v St. Joseph Intercommunity Hosp., 309 AD2d 1266, 765 NYS2d 77 [4th Dept. 2003]); where plaintiff injured on building roof used in ordinary course of occupant’s business (Roppolo v Mitsubishi Motor Sales of America, Inc., 278 AD2d 149, 718 NYS2d 322 [1st Dept. 2000]); where plaintiff fell on plywood laid on ground because regulation does not require that work surface be elevated (Cottone v Dormitory Authority of State of N.Y., 225 AD2d 203, 639 NYS2d 631 [4th Dept. 1996]); where plaintiff slipped on food left on floor as he stepped from ladder (Colucci v Equitable Life Assurance Society of the United States, 218 AD2d 971, 630 NYS2d 515 [1st Dept. 1995]); scissor lift is functional equivalent of scaffold and within purview of rule (Brown v Ciminelli-Cowper Inc., 2 AD3d 1308, 770 NYS2d 260 [4th Dept. 2003]); deck of crane used to reach work area is “platform” (Beltrone v New York, 299 AD2d 306, 749 NYS2d 271 [2d Dept. 2002]). 
            Regulation § 23-1.7(d), although sufficiently specific to support of § 241(6) cause of action, was held inapplicable where plaintiff slipped on snow-covered plastic because it is not a “tripping hazard”; further, regulation not applicable to open area between sidewalk and building (Cook v Orchard Park Estates, Inc., 73 AD3d 1263, 902 NYS2d 674 [3d Dept. 2010]); inapplicable where plaintiff worker fell onto concrete platform after attempting to climb out of wet dumpster (Monterroza v State Univeristy Construction Fund, 56 AD3d 629, 869 NYS2d 113[2d Dept. 2008]); inapplicable where plaintiff worker tripped on brick while standing on elevated scaffold because question of fact whether brick taken from demolished wall was part of work or debris (Riley v J.A. Jones Contracting, Inc., 54 AD3d 744, 865 NYS2d 225 [2d Dept. 2008]); inapplicable where plaintiff worker slipped in parking lot (Talbot v Jetview Properties, LLC, 51 AD3d 1396, 857 NYS2d 411 [4th Dept. 2008]); inapplicable where accident occurred on truck scale rather than “floor, passageway, walkway, scaffold, platform or other elevated surface” (Farrell v Blue Circle Cement, Inc., 13 AD3d 1178, 787 NYS2d 773 [4th Dept. 2004]); inapplicable where plaintiff worker slipped on snow, which was very condition he was charged with remedying (Gaisor v Gregory Madison Avenue, LLC, 13 AD3d 58, 786 NYS2d 158 [1st Dept. 2004]); inapplicable where staircase in open and common area remote from work site not “passageway” (Bruder v 979 Corp., 307 AD2d 980, 763 NYS2d 667 [2d Dept. 2003]); inapplicable where plaintiff fell from tracks of construction which are not elevated working surface (Lessard v Niagara Mohawk Power Corp., 277 AD2d 941, 715 NYS2d 816 [4th Dept. 2000]); inapplicable where plaintiff did not slip on foreign substance but on muddy ground that was exposed to elements (Gielow v Rosa Coplon Home, 251 AD2d 970, 674 NYS2d 551 [4th Dept. 1998]); inapplicable where no evidence of slippery condition (Boss v Intergral Const. Corp., supra); inapplicable where plaintiff fell not in “passageway” but in common area or open yard in front of or between buildings; additionally, plaintiff slipped on muddy ground that was exposed to the elements, not foreign substance (Scarupa v Lockport Energy Associates, 245 AD2d 1038, 667 NYS2d 561 [4th Dept. 1997]); inapplicable where water sealant on which plaintiff slipped not foreign substance but was part of new roof being constructed (Gist v Central School Dist. No. 1, 234 AD2d 976, 651 NYS2d 818 [4th Dept. 1996]); inapplicable where plaintiff slipped and fell on ice patch at construction site because area in which plaintiff’s injury occurred did not qualify as “floor, passageway, walking, scaffold, platform or other elevated working surface (Ramski v Zappia Enterprises, Inc., 229 AD2d 990, 645 NYS2d 364 [4th Dept. 1996]); inapplicable where stack of pipes on which plaintiff fell did not constitute “passageway” or elevated work area; slippery substance on which plaintiff slid integral to pipe and not foreign substance (Basile v ICF Kaiser Engineers Corp., supra); inapplicable to dirt-pile conditions in common areas or open yard in front of or between buildings (McGrath v Lake Tree Village Associates, supra).  It must be noted that the storm in progress rule does not apply to a § 241(6) cause of action based on § 23-1.7(d) because said regulation imposes upon owners and general contractors a duty to remove ice and snow while construction is in progress.  Rothschild v Faber Homes, Inc., 247 AD2d 889, 668 NYS2d 793 [4th Dept. 1998]).  The First Department has held that a worker injured as a result of slipping on an overnight accumulation of snow may recover under § 241(6) only upon a showing that “someone within the chain of the construction project” had notice of the accumulation.  DeStefano v Amtad New York, Inc., 269 AD2d 229, 703 NYS2d 34 (1st Dept. 2000).  However, the Second Department has held that a general contractor’s lack of notice of a snow condition on a roof was not a defense to a § 241(6) claim.  Amirr v Calcagno Const. Co., 257 AD2d 585, 684 NYS2d 280 (2d Dept. 1999).
            Regulation § 23-1.7(e) is sufficiently specific to support a Labor Law § 241(6) cause of action.  Giglio v St. Joseph Intercommunity Hosp., supra; Kvandal v Westminster Presbyterian Soc. of Buffalo, Inc., 254 AD2d 818, 678 NYS2d 185 (4th Dept. 1998); Adams v Glass Fab, Inc., 212 AD2d 972, 624 NYS2d 705 (4th Dept. 1995).  Regulation § 23-1.7(e) was held applicable in Colucci v Equitable Life Assurance Society becausefood left on floor upon which plaintiff slipped constituted “dirt” or “debris.”  Conversely, Regulation § 23-1.7(e) was held inapplicable where plaintiff slipped on snow-covered plastic in open area between sidewalk and building (Cook v Orchard Park Estates, Inc., supra); inapplicable where plaintiff worker tripped on rebar that was integral part of work (Venezia v State, 57 AD3d 522, 868 NYS2d 710 [2d Dept. 2008]); inapplicable where plaintiff worker slipped after attempting to step down 2 ½ feet to truck scale surface because accident not caused by tripped hazard (Farrell v Blue Circle Cement, Inc., supra); inapplicable where plaintiff injured while he and co-employee attempted to move long, heavy metal object on floor that was obstructing area (Madir v 21-23 Maiden Lane Realty, LLC, 9 AD3d 450, 780 NYS2d 369 [2d Dept. 2004]); inapplicable where open concrete area, littered with crushed stones, between equipment trailer and building under construction (Scofield v Trustees of Union College, 288 AD2d 807, 734 NYS2d 262 [3d Dept. 2001]); inapplicable where plaintiff slipped on ice rather than obstruction such as dirt or debris (Bale v Pyron Corp., 256 AD2d 1128, 684 NYS2d 393 [4th Dept. 1998]); inapplicable where fall in common area off roadway that extended around perimeter of premises not defined as walkway or passageway (Bauer v Niagara Mohawk Power Corp., 249 AD2d 948, 672 NYS2d 567 [4th Dept. 1998]).
               Regulation § 23-1.7(e)(1) requiring “passageways” be kept free from accumulations of debris and other tripping hazards, deemed sufficiently specific to support a § 241(6) cause of action.  Mugavero v Windows By Hart, Inc., supra; Scannell v Mt. Sinai Medical Center, 256 AD2d 214, 683 NYS2d 18 (1st Dept. 1998); Herman v Saint John’s Episcopal Hosp., 242 AD2d 316, 678 NYS2d 635 (2d Dept. 1997).  Regulation § 23-1.7(e)(1) was held applicable or potentially applicable in Aragona v State, 74 AD3d 1260, 905 NYS2d 237 (2d Dept. 2010) (questions of fact as to whether corridor created by lumber and construction material constituted “passageway” and whether padeye welded to deck of work barge was integral part of construction); in Kerins v Vassar College, 293 AD2d 514, 740 NYS2d 400 (2d Dept. 2002) (question of fact as to whether double doors used by workers to gain access from one worksite to another); and in Smith v County of Monroe, 229 AD2d 984, 645 NYS2d 258 (4th Dept. 1996). 
            Regulation § 23-1.7(e)(1) was held inapplicable where sidewalk bridge, onto which scaffold was lowered, not “passageway” (Lech v Castle Village Owners Corp., 79 AD3d 819, 913 NYS2d 713 [2d Dept. 2010]); inapplicable where padeye welded to deck or work barge not “sharp projection” (Aragona v State, supra); inapplicable where plaintiff tripped on rebar that was integral part of work (Venezia v State, supra); inapplicable where plaintiff working in large, open area, not passageway and protruding electrical conduits over which plaintiff tripped were integral part of construction (Verel v Ferguson Elec. Const. Co., Inc., 41 AD3d 1154, 838 NYS2d 280 [4th Dept. 2007]); inapplicable where plaintiff injured while working across room measuring 18 feet by 20 feet (Burkoski v Structure Tone, Inc., 40 AD3d 378, 836 NYS2d 130 [1st Dept. 2007]); inapplicable where open area between building under construction and materials storage trailers not passageway or walkway under § 23-1.7(e)(1), but might be “working area” under § 23-1.7(e)(2) because area provided workers’ only access to materials and, as such, was routinely traversed by workers; court noted conflict with decision in Muscarella v Herbert Construction Co., Inc., 265 AD2d 264, 697 NYS2d 35 (1st Dept. 1999) (Smith v Hines GS Properties, Inc., 29 AD3d 433, 815 NYS2d 82 [1st Dept. 2006]); inapplicable where site of accident not “passageway” (Applebaum v 100 Church LLC, 6 AD3d 310, 774 NYS2d 705 [1st Dept. 2004]); inapplicable where outdoor, 50-foot-long concrete slab regularly traversed to bring pipes to work area was “common, open area between job site and street” and not “passageway” (Dalanna v New York, 308 AD2d 400, 764 NYS2d 429 [1st Dept. 2003]); inapplicable where storage room not “passageway” (Conway v Beth Israel Medical Center, 262 AD2d 345, 691 NYS2d 576 [2d Dept. 1999]); inapplicable where wire mesh storage area not “passageway” (Dacchille v Metropolitan Life Ins. Co., 262 AD2d 149, 692 NYS2d 47 [1st Dept. 1999]); inapplicable where outdoors dirt pathway not “passageway” (Maynard v De Curtis , 252 AD2d 908, 676 NYS2d 340 [3d Dept. 1998]); inapplicable where truck bed not “passageway” (Cafarella v Harrison Radiator Div. of General Motors, 237 AD2d 936, 654 NYS2d 910 [4th Dept. 1997]); inapplicable where plaintiff in passageway when he tripped (Adams v Glass Fab, Inc., supra).
            Regulation § 23-1.7(e)(2) requiring floors and similar work areas be kept free from materials and debris is sufficiently specific to support a § 241(6) cause of action.  McDonagh v Victoria’s Secret, Inc., 9 AD3d 395, 781 NYS2d 525 (2d Dept. 2004); O’Hare v New York, 280 AD2d 458, 720 NYS2d 523 (2d Dept. 2001); White v Sperry Supply and Warehouse Inc., 225 AD2d 130, 649 NYS2d 236 (3d Dept. 1996); Baker v International Paper Co., 226 AD2d 1007, 641 NYS2d 206 (3d Dept. 1996).  Regulation § 23-1.7(e)(2) applies to specific work areas as floors, platforms and defined passageways, and not common areas or an open yard in front of or between buildings.  McGrath v Lake Tree Village Associates, supra.  Regulation § 23-1.7(e)(2) held applicable or potentially applicable where worker tripped on brick while working on scaffold; worker’s supervisor allegedly refused to allow removal of bricks to conceal his own error (Riley v J.A. Jones Contracting, Inc., supra); where plaintiff tripped over protruding electrical conduits, which were not dirt, debris or scattered material or tools (Verel v Ferguson Elect. Const. Co., Inc., supra); where electrician injured by debris accumulated as result of demolition and debris not integral part of work being performed by electrician (Tighe v Hennegan Construction Co., Inc., 48 AD3d 201, 850 NYS2d 417 [1st Dept. 2008]); where plaintiff stepped on nail near pile of debris that had been accumulating for several days and hazard not integral part of plaintiff’s work in light of accumulated debris (Singh v Young Manor, Inc., 23 AD3d 249, 804 NYS2d 65 [1st Dept. 2005]); where leaking oil constitutes “debris” (Beltrone v New York, supra); where piece of sheetrock on which plaintiff tripped constituted “debris” and “scattered material” (Boss v Integral Const. Corp., supra); where plaintiff fell in rear bed of dump truck (Cafarella v Harrison Radiator Div. of General Motors, supra); where mixed cement and mortar debris on scaffold (McCormack v Helmsley-Spear, Inc., supra); where plaintiff tripped over piece of wood partially buried in trench (McAndrew v Tennessee Gas Pipeline Co., 216 AD2d 876, 628 NYS2d 991 [4th Dept. 1995]); where question of fact exists as to whether piece of wood embedded in trench or bent nail protruding from wood were “sharp projections” (Dowd v New York, 40 AD3d 908, 837 NYS2d 668 [2d Dept. 2007]); and where open area between building under construction and materials storage trailers not a passageway or walkway under § 23-1.7(e)(1), but may be a “working area” under § 23-1.7(e)(2) because area provided workers’ only access to materials and, as such, was routinely traversed by workers; court noted conflict with decision in Muscarella v Herbert Construction Co., Inc., 265 AD2d 264, 697 NYS2d 35 (1st Dept. 1999) (Smith v Hines GS Properties, Inc., supra).
            Regulation § 23-1.7(e)(2) was held inapplicable where brick over which plaintiff tripped was integral part of plaintiff’s work (Lech v Castle Village Owners Corp., supra); inapplicable where worker fell from unguarded edge of elevated concrete platform while walking and talking to foreman (Pope v Safety and Quality Plus, Inc., supra); inapplicable where 10-inch to 12-inch gap between building and catwalk not a condition that would cause tripping (Urban v No. 5 Times Square Development, LLC, supra); inapplicable where alleged tripping hazard integral part of work (Hageman v Home Depot U.S.A., Inc., supra); inapplicable where opening created when a 2-foot by 2-foot tile resting 18 inches above subfloor became dislodged (Romeo v Property Owner (USA) LLC, supra); inapplicable to bowed plank in scaffold on which plaintiff was working (Santo v Scro, 43 AD3d 491, 841 NYS2d 627 [2d Dept. 2007]); inapplicable to transient paper such as sandwich wrapper (Vital v New York, 43 AD3d 309, 842 NYS2d 363 [1st Dept. 2007]); inapplicable to accident resulting from four-foot high stack of tiles of kind then being installed on floor of room where accident occurred (Burkoski v Structure Tone, Inc., supra); to inhalation hazards from air contaminants (Piazza v Frank L. Ciminelli Const. Co., Inc., 2 AD3d 1345, 770 NYS2d 504 [4th Dept. 2003]); inapplicable to debris created by plaintiff and co-workers integral part of work (Salinas v Barney Skanska Const. Co, 2 AD3d 619, 769 NYS2d 559 [2d Dept. 2003]); inapplicable to outdoor, 50-foot-long concrete slab regularly traversed to bring pipes to work area might qualify as “working area,” but protruding bolt on which worker tripped was not “dirt,” “debris,” “scattered tools and materials” or “sharp projection” (Dalanna v New York, supra); inapplicable where plaintiff electrician tripped over cable with which she was working (Harvey v Morse Diesel Int’l, Inc., 299 AD2d 451, 750 NYS2d 117 [2d Dept. 2002]); inapplicable to open area where worker walked from job site to construction area because was not floor, platform or similar working surface covered by rule (Muscarella v Herbert Construction Co., supra); inapplicable to storage room because not “working area” and dolly not “scattered tool” (Conway v Beth Israel Medical Center, supra); inapplicable to wire mesh storage area because not “working area” (Dacchille v Metropolitan Life Ins. Co., supra); inapplicable to object on which plaintiff fell was integral part of work (Sharrow v Dick Corp., 233 AD2d 858, 649 NYS2d 281 [4th Dept. 1996]); inapplicable to wire mesh placed on floor area where concrete was to be poured integral part of floor being constructed and not dirt, debris or scattered tools and materials (Adams v Glass Fab, Inc., supra).
            Regulation § 23-1.7(f) sets forth specific standards of conduct sufficient to support § 241(6) cause of action.  Akins v Baker, 247 AD2d 562, 669 NYS2d 63 (2d Dept. 1998).  Regulation § 23-1.7(f) requiring stairways, ramps or runways be provided “as the means of access to working levels above or below ground,” mandates specific conduct that may have been violated by failure to provide ladder to employee who had to climb to reach top of 10-foot high bundles resting on flatbed (Intelisano v Sam Greco Construction, Inc., 68 AD3d 1321, 890 NYS2d 683 [3d Dept. 2009]).  Regulation § 23-1.7(f) was held applicable where plaintiff injured while attempting to descend multi-tier scaffold with allegedly inadequate planking (Harris v Hueber-Breuer Construction Co., Inc., supra); applicable where worker fell through unsafe temporary staircase used to access different working levels at work site (McGarry v CVP 1, LLC, 55 AD3d 441, 866 NYS2d 76 [1st Dept. 2008]); potentially applicable where worker had to climb approximately 15 feet to reach access hatch and then lower himself through hatch onto turbine shell and down to base of exhaust well, falling approximately eight feet in the process (Lee v Astoria Generating Co., L.P., 55 AD3d 124, 863 NYS2d 164 [1st Dept. 2008]); applicable where worker fell backwards while descending temporary wooden forms he was using as means of access to basement worksite (Miano v Skyline New Homes Corp., 37 AD3d 563, 830 NYS2d 257 [2d Dept. 2007]); applicable where worker allegedly slipped on muddy cross-piece of “chicken ladder” used as ramp and as sole access to employer’s shanty (Amantia v Barden & Robeson Corp., 38 AD3d 1167, 833 NYS2d 784 [4th Dept. 2007]); regulation may be used as predicate for recovery for back injury sustained when, as a result of a violation of the rule, injured worker was forced to throw cinder blocks up over his head and onto scaffold (Smith v M.W. Woods Const. Co., 309 AD2d 1155, 764 NYS2d 749 [4th Dept. 2003]). 
            Regulation § 23-1.7(f) held inapplicable where worker fell while descending from side of truck bed, which was approximately five feet from ground (Lavore v Kir Munsey Park 020, LLC, 40 AD3d 711, 835 NYS2d 708 [2d Dept. 2007]); inapplicable where accident occurred on truck scale, which is not above-ground working level requiring stairway, ramp or runway (Farrell v Blue Circle Cement, Inc., supra); although regulation sets forth specific standards of conduct, it does not apply where plaintiff was not injured while attempting to access working levels above or below ground (Gielow v Rosa Coplon Home, supra).
            Regulation § 23-1.7(g), requiring testing of unventilated, confined areas where dangerous air contaminants may be present or where oxygen supply may be insufficient before any person is permitted or suffered to work in the area, is sufficiently specific to support a § 241(6) cause of action, and is 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).  Regulation § 23-1.7(g) held inapplicable where plaintiff testified that alleged contaminants were not present prior to commencement of work in Osorio v Kenart Realty, Inc., 35 AD3d 561, 826 NYS2d 645 (2d Dept. 2006).  See also Mazzocchi v International Business Machines, Inc., 294 AD2d 151, 742 NYS2d 217 (1st Dept. 2002) (discussing plaintiff’s failure to allege claim based on violation of § 23-1.7[g]).
            Regulation § 23-1.7(h) provides that all corrosive substances and chemicals be stored and used so as not to endanger any person, and requires protective equipment for use of such corrosive substances and chemicals, provides a basis for a § 241(6) cause of action.  Welsh v Cranesville Block Co., Inc., 258 AD2d 759, 685 NYS2d 825 (3d Dept. 1999).  
    

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