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Labor Law Pointers - Volume II, No. 5

From the Editor:

I get questions from readers on a fairly regular basis and this one was very interesting to me.  The question was as follows; when plaintiff is a sole proprietor and has suffered a grave injury is there a valid claim against the employer’s 1b coverage?  I have to admit that I was at first unsure of the answer but with some digging, and help from the always able Jennifer Ehman, we found the answer.  Drum roll please!  If the sole proprietor is not a corporation the courts have held that there is no ability to make a claim for common law indemnification or contribution against the plaintiff’s sole proprietorship as doing so would, in effect, allow the contributory negligence of the plaintiff to reduce his or her recovery thus undermining the public policy considerations behind the law.  That, however, is not the case where the plaintiff, even if he were the sole employee, had established a corporation.  In that circumstance the entity against whom the action would be brought would not be the plaintiff but rather a separate legal entity and thus the action would be allowed.  The answer to the question therefore is that it depends on the mechanism by which the plaintiff established and if it thus had an existence separate and apart from him personally.

Next question for this month’s edition, does paying comp where you are not the actual employer give a defendant the protection of Comp law §11.  This situation arises when plaintiff’s employer does not obtain workers compensation insurance for the plaintiff and thus he or she may seek to obtain comp from the entity who hired the plaintiff’s employer under §56 of the Comp law.  Generally in our area of the law this is a sub-contractor who failed to obtain the comp and the general contractor who ends up paying it.  
Once plaintiff has collected comp from a company who did not directly employ him the question I get is always “but I had to pay the comp, aren’t I now the employer and immune for the labor law suit absent a grave injury”.  The answer is, unfortunately for the defendant, no.  The courts have ruled that paying comp “did not give rise to a new employment relationship between the plaintiff and itself” absent any other evidence indicating that plaintiff was a special employee.  (See Joyce v McKenna, 2 A.D.3d 592)  A bitter pill to swallow in understand, but also a difficult explanation to make to a client or carrier who has just paid the comp because the plaintiff’s employer did not obtain any and is still going to be in the law suit.  Forward fast to the case being negotiated towards settlement and the question of waiving the comp lien come up and imagine the discussions that ensue if the comp carrier is also the CGL carrier.
We have some good cases for you this month, hope you enjoy them.  As always if you have any questions please feel free to call or email at any time.  Our technological abilities are improving quickly and we are providing training for groups which are not centrally located via webinar and reviews are promising.  I will admit that when I do them that I miss the unfettered exchange which is so much a part of discussing the labor law but we are working that in more and more.  That said I continue to prefer doing my presentations live and would love to come and visit any group, regardless of size, and provide some training.  Hope you enjoy the cartoon below; I spent way too many hours looking at Escher’s drawings in my youth to pass up a chance to include this one.  As always feel free to pass this on to any you think are interested and if anyone wants to be added to the distribution list just send me an email and I will add you to the list.  Have a great February and I will see you all again next month.

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]

 

01/30/13          Samaroo v. Patmos Fifth Real Estate, Inc.
Appellate Division, Second Department

http://www.nycourts.gov/reporter/3dseries/2013/2013_00472.htm

Plaintiffs Samaroo and Herman were installing rails and brackets in an elevator shaft as part of a renovation project at a building owned by defendant third-party plaintiff Patmos when the plank on which they were standing collapsed, causing them to fall several stories to the bottom of the shaft.  Plaintiffs were employed by Rotavele, the subcontractor to perform the elevator installation.  The renovation project was initiated by the building’s prior owner, defendant Mazl Building (Mazl), which had originally hired Rotavele.  Following the accident, plaintiffs brought action against defendants asserting, among other, violation of § 240(1). 

“A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done where a plaintiff is injured.  To impose such liability, the defendant must have the authority to control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition.  Thus, a defendant’s potential liability is based on whether it had the right to exercise control over the work, not whether it actually exercised that right.  Once an entity becomes an agent under the Labor Law it cannot escape liability to an injured plaintiff by delegating the work to another entity.”

In this case, the Second Department affirmed the Supreme Court’s decision denying Mazl’s motion for summary judgment because it was neither an agent of the owner of the building or a general contractor of the renovation project.  According to the Second Department, Mazl failed to demonstrate that it lacked the requisite authority to supervise and control plaintiffs’ work, given the terms of the contract it entered into with Patmos.

PRACTICE POINT:  This case is a very good example of what constitutes an agent to an owner and will thus make an entity an appropriate defendant in a labor law case.  The court clearly outlines the requirements, that the defendant must have the authority to supervise and control the work of the plaintiff, not that they actually exercise such control.  There is little that can be done when the contract clearly establishes that the defendant has the authority and testimony that contradicts the language of the contract will not be able to change the outcome.  This reaffirms our prior recommendation that you carefully read all contracts to make sure of both your contractual and coverage position relative to those above and below you in the chain of contracts. 

 

01/22/13          Peters v. New School
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2013/2013_00285.htm

Plaintiff was injured when, while removing plywood sheets that were temporarily covering a hole in the floor, a wood beam that was used to support the plywood and upon which plaintiff was standing, cracked and caused him to fall through the hole.  The First Department held that Plaintiff established that defendant failed to provide any safety devices that would have prevented his fall, thereby entitling him to summary judgment.  The First Department determined the project superintendent’s affidavit was conclusory and nonspecific as to what safety devices were available, where they were kept, and whether plaintiff knew where they were kept because “a general standing order to use safety devices does not raise a question of fact that a plaintiff knew that safety devices were available and unreasonably chose not to use them.  Thus, the First Department rejected defendant’s argument that plaintiff was a recalcitrant worker or the sole proximate cause of the accident. 

PRACTICE POINT:  Recall the three necessary conditions for a sole proximate cause argument.  That there must be an available, appropriate safety device and that the plaintiff be instructed to use it or know its use is required.  All three are necessary to establish a sole proximate cause defense.

 

01/17/13          Cuentas v. Sephora USA, Inc.
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2013/2013_00257.htm

The Court held that plaintiff’s testimony that the ladder he was using was both unsteady as he was ascending it and too short to enable him to reach the window he was cleaning established prima facie that defendants failed to provide him an adequate safety device under Labor Law § 240(1) and that their failure proximately caused his injuries.  The First Department rejected defendant’s assertion that plaintiff was negligent (and presumably that he was the sole proximate cause of the accident) as he was on top of the ladder because where, as here, “plaintiff has established that no adequate safety device was provided, [and] his own negligence, if any … is of no consequence.”   

PRACTICE POINT:  At the risk of sounding like a broken record, all three criteria must be met to establish a sole proximate cause defense.  Here the failure of the defendant to provide the plaintiff with an appropriate and available safety device dooms the defense in spite of the plaintiff’s actions which led to the accident.

 

01/15/13          Rodriguez v. Gilbrane/TDX Joint Venture
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2013/2013_00151.htm

The First Department affirmed the IAS court’s  decision denying plaintiff’s motion for partial summary judgment on the issue of defendants Gilbrane/TDX Joint Venture and TDX Construction Corp.’s (defendants) liability under Labor Law § 240(1), and also affirmed the decision granting defendants cross-motion for summary judgment dismissing plaintiff’s complaint on the ground that they, as the construction manager, did not supervise, direct, or control plaintiff’s work because nothing in the record indicated that the defendants were other than the typical construction manager and therefore, not the agent of the owner of the building under construction at the time of the injury.

PRACTICE POINT:  Recall the Samaroo case above which outlines the necessary elements to be held an agent of the owner.  The party must have the authority to supervise and control the work of the plaintiff to be deemed an agent.  Recall that even when the contract specifically states that the party does not have the required authority, if their actions establish that they, by their action, actually had the authority they will be deemed an agent.

01/15/13          Wade v. Bovis Lend Lease LMB, Inc.
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2013/2013_00143.htm

Plaintiff was a passenger in a temporary personnel lift installed by defendant Atlantic at a construction site when the lift became stuck as it was taking plaintiff to his work location.  Plaintiff and other passengers were directed to exit the hoist through an exit in the top.  As he emerged onto the top of the hoist, plaintiff was struck by a piece of guide rail that was part of a hoisting mechanism.  The guide rail had broken off and fell over 200 feet to where it struck plaintiff.

The First Department affirmed the Supreme Court’s decision to partially grant plaintiff summary judgment on his § 240(1) claim because the enumerated safety device, the hoist, failed and was a proximate cause of plaintiff’s injury.  The First Department further noted the guide rail was an object that required securing for the purposes of operating the hoist.

PRACTICE POINT:  There are two types of 240(1) cases, falling worker cases and falling object cases.  Here we have the falling object situation.  Recall that the falling object does not need to have been in the process of being hoisted or raised any longer and that failure to have a safety device which prevents the object from falling and striking the plaintiff causing injury is a violation of 240(1), establishing Summary Judgment for the plaintiff. 

 

01/9/13            Wahab v. Agris & Brenner, LLC
Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2013/2013_00077.htm

Plaintiff allegedly sustained personal injuries while working on a construction site when a metal plank on a scaffold on which he was standing collapsed.  Plaintiff brought suit against the owners, who thereafter brought a third-party action against plaintiff’s employer, Atlantic Contracting, LLC.

The Second Department affirmed the Supreme Court’s decision denying plaintiff’s summary judgment motion on the issue of liability regarding plaintiff’s § 240(1) claim because the evidence submitted by plaintiff raised a question of fact as to whether plaintiff, who possessed a scaffolding license, knew before climbing up the scaffold that other workers had begun untying the ropes which secured the planks of the scaffold, yet failed to check whether the planks of the scaffold were secured before climbing up and putting his weight on them.  The Second Department held that under these circumstances, plaintiff failed to demonstrate that his failure was not the sole proximate cause of his injuries.

The Second Department further held that due to the existence of this question of fact, the Supreme Court also properly denied the owners’ cross-motion for summary judgment dismissing the § 240(1) claim because although the owners submitted evidence that plaintiff’s injuries could have been prevented if he had been wearing an available safety harness, the owners failed to make a prima facie showing that plaintiff’s alleged negligence in failing to wear the harness was the sole proximate cause of the accident.

PRACTICE POINT:  Point number one is that you need to be careful what you put in your motion.  Here, the reason the plaintiff’s motion was denied appears to be based solely on evidence he attached as an exhibit to his motion.  It appears that the plaintiff’s production of his license (and the knowledge that establishes was provided to him and possessed by him to be licensed by the city) coupled with the fact that he knew that the ropes attaching the planks to the scaffold were removed appear to have created a question of fact as to whether the accident was proximately caused solely by the plaintiff.  Second I am unclear exactly what the Second Department found wanting in the defendant’s motion but as they find the safety harness to be available it is either the appropriateness of the harness or the failure to inform the plaintiff of the need to use this safety device.

 

Labor Law Section 241(6)

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

02/01/13          Miles v. Great Lakes Cheese of New York
Appellate Division, Fourth Department
http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00615.htm

Plaintiff sustained injury when he was struck in the head by two scaffold planks weighing between 50 and 70 pounds each.  At the time of the accident, plaintiff and a coworker were in the process of raising the planks from the lowest level on the scaffolding, which was approximately 3 1/2 feet above the ground, to a higher level approximately 20 inches above the lowest level. While the coworker was lifting the end of the planks, he lost his balance, let go of the planks, and dropped them onto plaintiff's head.

The court held that a question of fact existed as to plaintiff’s 241(6) claim, premised on an alleged violation of 12 NYCRR 23-5.6(f) (Pole scaffold erection and removal.  When a new working level is desired, the existing platform shall be left undisturbed until the new working level is framed.  As the scaffold is abandoned with the progress of the work, all supporting members shall be left intact.  When a pole scaffold is dismantled the sequence of the removal of members shall be in reverse of that used in the erection of such scaffold).  Specifically, in the court’s opinion, defendants failed to establish that such regulation did not apply to these facts, that it not violated, or that the violation thereof was not a proximate cause of plaintiff’s injuries.  

 

02/01/13          Landahl v. City of Buffalo
Appellate Division, Fourth Department
http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00615.htm

Plaintiff was allegedly injured when his foot slid from a worn marble step with a 1 1/2-inch depression on a stairway in City Hall.  In modifying the order of the trial court, the Appellate Division held that insofar as plaintiff’s Labor Law § 241(6) claim was premised on the alleged violation of 12 NYCRR 23–1.7(e)(1), defendant met its initial burden of establishing that the provision was inapplicable to the facts of this case, and plaintiff failed to raise a triable issue of fact in opposition thereto

Take Away:  In this issue, we report on two cases involving 12 NYCRR 23-1.7(e)(1).  For reference, this provision state, in relevant part:

(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.

The court agreed that the stairway was a passageway, but appears to have found that a worn step did not constitute an obstruction or condition which could cause tripping.   

 

02/01/13          Miller v. Savarino Construction Corp.
Appellate Division, Fourth Department
http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00619.htm

Plaintiff’s decedent suffered a fatal heart attack after ascending five flights of stairs to reach the uppermost floor of the building where the work his employer was hired to perform was located. The court held that plaintiff failed to support his 241(6) cause of action by alleging the violation of a qualifying provision of the Industrial Code.  

 

01/29/13          Johnson v. 923 Fifth Ave. Condominium
Appellate Division, First Department
http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00425.htm
Plaintiff was injured when he tripped over a piece of plywood that had been laid over a sidewalk to protect it.  In affirming the trial court’s dismissal of his Labor Law § 241(6) claim premised on 12 NYCRR 23-1.7(e)(1), the court held that the provision was inapplicable as the sidewalk were plaintiff was unloading material was not a “passageway” within the meaning of the statute.  Further, 23-1.7(e)(2) was equally inapplicable because if the sidewalk could be construed as a floor, platform or similar area where people work or pass, plaintiff did not trip over loose or scattered material; rather, he tripped over a piece of purposefully laid plywood. 

Take Away:  This is the second 12 NYCRR 23-1.7(e)(1) decision.  Comparatively, in this decision, the court was focused on the location of the incident as opposed to what plaintiff allegedly tripped on.  

 

Labor Law Section 200 and Common Law Negligence

                                                                                    by:    V. Christopher Potenza
(716) 849-8933
[email protected]
January 2013 is a pretty lean month for Labor Law 200 decisions.  The Wade case is interesting as it involves the contractor whose only responsibility at the worksite was to erect and operate the hoist and scaffolds. 

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. 

 

01/29/2013      Johnson v. 923 Fifth Ave. Condominium
Appellate Division, First Department
http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00425.htm

The Court rejects plaintiff’s Labor Law §200 and common-law negligence claims for injury caused by a tripping hazard on the sidewalk since the hazard was created by plaintiff’s employer's placement of the materials on the sidewalk.  The court ruled that plaintiff's injury was caused by the way he performed his work, not by a dangerous condition of the work site, and that defendants exercised no supervision or control over plaintiff's work. 


01/15/2013      Wade v. Bovis Lend Lease LMB, Inc.
Appellate Division, First Department
http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00143.htm

Plaintiff was a passenger in a temporary personnel lift installed by defendant Atlantic Hoisting and Scaffolding, LLC and High Rise Hoisting and Scaffolding, Inc. (collectively Atlantic) at a construction site when the lift became stuck as it was taking plaintiff to his work location. Plaintiff and the other passengers were directed to exit the hoist through an exit in the top. As he emerged onto the top of the hoist, plaintiff was struck by a piece of guide rail that was part of a hoisting mechanism. The guide rail had broken off and fell over 200 feet to where it struck plaintiff.

The First Department upheld the denial of Atlantic's motion to dismiss the Labor Law §200 and common-law negligence claims.  Triable issues of fact exist as to whether Atlantic’s use of recycled parts on the hoist (in violation of its contract to only use “new and of first quality” parts) created the condition that caused the accident.  Further, the Court found triable issues concerning whether, as the contractor with sole authority over the hoist, Atlantic had sufficient oversight authority for the hoist to impose § 200 liability

February decisions are already coming in, so there should be much more to report next month.  Enjoy the reprieve. 

 

Indemnity Issues in Labor Law

                                                                                    by:    Steven E. Peiper
(716) 849-8995
[email protected]
02/01/13  Landahl v City of Buffalo and U&S Services
Appellate Division, Fourth Department
http://www.nycourts.gov/reporter/3dseries/2013/2013_00615.htm

Although addressed above, we quickly rehash the background of this loss.  Plaintiff was employed by Industrial Power at a jobsite located within Buffalo’s City Hall.  Industrial Power was retained to perform work at the jobsite by the project manager, U&S Services.  Plaintiff, who sustained injury when he slipped and fell on an allegedly defective marble step, commence a Labor Law action against the City of Buffalo and U&S Services. 

On the basis of the subcontract between the two, U&S Services commenced a third-party action against Industrial Power which sought an award of contractual indemnification.  At the close of discovery, U&S Services moved, in part, for an award of contractual indemnification against Industrial Power.  Industrial Power opposed the motion on the basis that the contract provision at issue was impermissibly vague. 

In awarding contractual indemnity to U&S Service, the Court noted that contractual indemnity provision explicitly applied where “an on-the-job injury [was] caused by an act or omission of IPL in the performance of that agreement.”  Importantly, the Court went on to note that it was Industrial Power’s responsibility to establish that the loss was not caused by its own act or omission.  Where, as here, Industrial Power could not reach that burden, it could not defeat plaintiff’s motion for summary judgment.

Peiper’s Point – Just a quick note on this one.  Note, that the default is that the contract contemplated the indemnity claim.  Under such circumstance, at least in the eyes of the Fourth Department, the burden shifts to the proposed indemnitor to establish that loss was not, in fact, within the contemplated scope of the indemnity agreement.  It would seem to us that, as the movant, U&S Services should have had to bear this burden. 

 

01/30/13  Samaroo v Patmos Fifth Real Estate, Inc.
Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2013/2013_00472.htm

Plaintiff was injured in the course of his employment with Rotavele when he fell down an elevator shaft.  At the time of the incident, Rotavele was performing work under a contract that it had entered into with the building owner Mazl.  Prior to the incident, however, Mazl had sold its interest in the building to Patmos.  As part of that deal, Mazl also assigned all of its contracts to Patmos as the new owner.

Patmos, as the owner, was named as the defendant in the instant case.  In turn, Patmos then commenced a third-party action against Rotavele which sought contractual indemnification.  Rotavele resisted the Patmos claim on the basis that it only had a contract with Mazl, and that it owed no duties to Patmos.

The Court, however, disagreed.  Where, as here, there was a valid assignment of the contracts between Mazl and Patmos, it followed that Patmos ascended to the rights of Mazl.  Because the contract in question did not have a prohibition against assignment, and there was no valid public policy reason to void it, the Court applied the indemnity terms as written.

Peiper’s Point – We were just a little bit surprised by this decision.  As you know, indemnity provisions are meant to be strictly construed.  The assignment of a contractual right to another party, which is enforceable against a third-party, seems questionable.  Especially, where, as here, it may have materially altered the risk for which indemnity was sought.  Notably, however, the Court ruled that there was no change in the risk, despite there being an entirely new ownership entity.

 

01/29/13          Alleva v United Parcel Services, Inc.
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2013/2013_00409.htm

Plaintiff was hired as a security guard for third-party defendant Pitt.  Plaintiff sustained injury while working for Pitt at a UPS distribution center.  Apparently, a UPS employee assaulted plaintiff when plaintiff sought to search the employee’s bag.

Upon being sued, UPS then commenced a third-party action against Pitt seeking contractual indemnification.  The claim was based upon the agreement that Pitt/UPS had entered into that broadly provided Pitt would indemnify UPS for any injury sustained by an employee of Pitt…except where the injury arose from the sole negligence of UPS.  Thus, Pitt was entitled to indemnify UPS for injuries UPS’ employee caused to an employee of Pitt. 

 

01/22/13          Port Parties, Ltd. v Merchandise Mart Props., Inc.
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2013/2013_00277.htm

Defendant Merchandise leased premises on Pier 94 in NYC to hold a trade show.  Merchandise then retained Port Parties to provide “bathroom matron services.”  As part of that agreement, Merchandise agreed to obtain insurance on behalf of Port, and to indemnify Port for any and all claims “arising from or in connection with the use or occupancy of the [space].” 

Unfortunately, a guest at the trade show was injured when she slipped and fell in the bathroom being maintained by Port Parties.  In the subsequent lawsuit, Port Parties defaulted and judgment was entered against them.  Thereafter, Port Parties commenced a claim for contractual indemnity against Merchandise pursuant to the aforementioned contract.  Merchandise countered that the indemnity clause at issue was void by operation of GOL § 5-323 which prohibits a contractor from exempting itself from liability caused by its own negligence. 

In response to Merchandise’s argument, Port Parties argued that GOL § 5-323 could be circumvented where, as here, two parties dealing at arm’s length agreed to shift liability exposure via an indemnify clause AND an insurance procurement clause.  Thus, Port Parties argued that where, as here, the indemnity clause was meant to be covered by insurance, the GOL section relied upon by Merchandise was inapplicable.

Unfortunately for Port Parties, Merchandise never actually procured coverage as it was obligated to under the terms of the agreement at issue.  Thus, the First Department reasoned that because there was no insurance to shift the exposure, the indemnity agreement in question was, in fact, in violation of the GOL.  Therefore, Port Parties’ claim for contractual indemnification was void as a matter of law.

Peiper’s Point – This is a weird case, but it sets a dangerous precedent.  Notice that Merchandise, by unilaterally violating the terms of its contract, also exempted itself from contractually liability.  While the Court’s decision is technically “spot on,” we have a hard time permitting a party to avoid one contractual obligation (contractual indemnification) simply because it intentionally choose to ignore another one (ins. procurement).

 

01/19/13 Wahab v Agris & Brenner, LLC
Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2013/2013_00077.htm

Plaintiff was an employee of Atlantic Contracting at a project owned by Agris.  During the course of his employment, plaintiff fell when a plank he was standing on collapsed.  Plaintiff subsequently sued Agris as the owner of the project site.  Agris, in turn, commenced a third-party action seeking common law indemnity against Atlantic. 

At motion term, the trial court found a question of fact existed as to whether plaintiff’s own actions were the sole proximate cause of his injuries.  That resulted in both motions relative to Labor Law § 240(1) being denied.  However, Agris successful succeeded in establishing that it was not liable under Labor Law § 200.  At the same time, the trial court conditionally granted Agris’ motion for common law indemnity against Atlantic.

On appeal, the Second Department ruled that there was no reason for the trial court to have conditioned Agris’ common law indemnity recovery.  In the instant case, Agris had successfully established that it was not liable under Labor Law § 200.  In addition, Agris had also established that Atlantic was either negligent – or – supervised, directed or controlled plaintiff’s work.  Under such circumstances, the Appellate Division noted that Agris was entitled to an “unconditional” grant of indemnity.

Peiper’s Point – For those of you wondering, like myself, why Atlantic didn’t avail itself of a Section 11 defense, the Court addressed that issue as well.  Apparently, Atlantic did not purchase workers’ compensation insurance for its employees, and lost the “grave injury” defense as a result.

 

01/15/13 Rodriguez v Gilbane/TDX Joint Venture
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2013/2013_00151.htm

Plaintiff named Gilbane/TDX (“Gilbane”) as a defendant in a Labor Law suit.  However, where Gilbane had no active negligence (ie., Labor Law § 200), and was a Construction Manager (as opposed to an agent of the owner), all Labor Law claims against it were dismissed on summary judgment.

At the time of the summary judgment motions, Gilbane also moved for a conditional order of contractual indemnity against a third-party defendant.  Notably, Gilbane’s motion only sought indemnity if it was held liable to the plaintiff.  Where, as here, Gilbane was dismissed from the personal injury action, the Court refused to consider the indemnity claim.  In so holding, the Appellate Division noted that Gilbane only asked for contractual indemnity if it was held liable to the injured party.  By its own requested relief, its claim/motion was moot.

Peiper’s Point – We thought it was interesting that the Court felt compelled to indicate that it gave Gilbane exactly what it asked for.  Perhaps, if Gilbane had sought contractual indemnity from third-party defendant for all accrued losses (eg., defense costs) and any future exposure its motion would have survived.  On the flip side, we remind you of the recent cases we’ve reviewed right here that hold all indemnity claims are rendered moot upon a finding of no liability in the main-party action.

 
241(6) REGULATIONS; SPECIFIC OR GENERAL

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

Regulation § 23-1.8 requiring certain personal safety equipment, was not applicable where plaintiff was 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, 71 AD3d 1104, 898 NYS2d 220 (2d Dept. 2010). 
Regulation § 23-1.8(a) requiring certain protective equipment be furnished when activity involves foreseeable risk of eye injury, applicable where worker’s eye injury allegedly occurred when he fell between ceiling joists and hit his face (Pilato v Nigel Enterprises, Inc., supra); whether there was violation of regulation ordinarily a question of fact (Fresco v 157 East 72nd Street Condominium, 2 AD3d 326, 769 NYS2d 536 [1st Dept. 2003]); question of fact whether defendants violated regulation requiring eye protection in certain activities, where plaintiff drilling a hole in concrete wall when he was struck in eye (McCune v Black River Constrs., 225 AD2d 1078, 639 NYS2d 203 [4th Dept. 1996]); question of fact whether defendants violated regulation where wire at work site struck plaintiff in eye (McBrynes v Ambassador Construction Co., Inc., 290 AD2d 1078, 736 NYS2d 17 [1st Dept. 2002]); evidence at trial that plaintiff’s employer directed plaintiff to do demolition work without safety glasses sufficient to show violation (Crawford v Williams, 198 AD2d 48, 603 NYS2d 456 [1st Dept. 1993]).
Regulation § 23-1.8(c)(1) requiring workers be provided with hard hats when working in an area “where there is a danger of being struck by falling objects or materials,” is sufficiently specific to support of § 241(6) claim (Singh v 106-108 Bayard Street Corp., 300 AD2d 31, 750 NYS2d 496 [1st Dept. 2002]; see also Sikorski v Burroughs Drive Apartment, Inc., 306 AD2d 844, 762 NYS2d 718 [4th Dept. 2003]).  Regulation § 23-1.8(c)(1) held potentially applicable where plaintiff struck on head by previously attached bracket which became dislodged and where two similar brackets had fallen same day; court distinguished § 23-1.8(a)(1), which applies only where work site is “normally exposed” to falling objects (Marin v AP-Amsterdam 1661 Park, LLC, 60 AD3d 824, 875 NYS2d 242 [2d Dept. 2009]).
Regulation § 23-1.8(c)(1) held inapplicable where worker injured when 10-foot vertical mounting channel he was securing to ground fell on his head (Spiegler v Gerken Building Corp., 57 AD3d 514, 868 NYS2d 712 [2d Dept. 2008]); inapplicable where worker’s injuries occurred when he was thrown from roof of a “Bobcat” and not as result of falling object or other head bumping hazard (Modeste v Mega Contracting, Inc., 40 AD3d 255, 835 NYS2d 156 [1st Dept. 2007]); inapplicable where injured worker not working below area from which injury-producing item fell (Sikorski v Burroughs Drive Apartment, Inc., supra); § 23-1.8(c)(1) not intended to afford protection against hazards of falling tree (Lysiak v Murray Realty Co., 227 AD2d 746, 642 NYS2d 350 [3d Dept. 1996]).
Regulation § 23-1.8(c)(4) requiring appropriate protective equipment where an employee is required to use or handle corrosive substances, is sufficiently specific, and applies to plaintiff injured while handling heated asphalt (Creamer v Amsterdam High School, 241 AD2d 589, 659 NYS2d 560 [3d Dept. 1997]); held applicable to plaintiff allegedly injured from corrosive effects of wet concrete he was required to kneel in while performing work (Welsh v Cranesville Block Co. Inc., supra).

Regulation § 23-1.9(c)(3) is not a safety regulation but rather a health regulation, mandating that facilities be located reasonably close to the worksite; regardless, it is not applicable where plaintiff injured while waiting for portable toilet to be vacated (Fox v Hydri Dev. Group, 222 AD2d 1124, 635 NYS2d 897 [4th Dept. 1995]). 

Regulation § 23-1.10(b) prescribing standards for use for electrical and pneumatic hand tools, held inapplicable where plaintiff injured while using diesel-powered water blasting unit (Coleman v ISG Lackawanna Services, LLC, 74 AD3d 1825, 902 NYS2d 480 [4th Dept. 2010]).  Neither an air compressor nor gauge on air compressor is “hand tool” with meaning if regulation § 23-1.10(b) (Szafranski v Niagara Frontier Transportation, 5 AD3d 1111, 773 NYS2d 332 [4th Dept. 2004]).

Regulation § 23-1.10(b)(1) sets forth safety standards for disconnecting and shutting off electric and pneumatic hand tools, and is sufficiently specific to support a § 241(6) claim (Shields v General Electric Co., 3 AD3d 715, 771 NYS2d 249 [3d Dept. 2004]).  Regulation § 23-1.10(b)(1) held inapplicable to injuries arising from use of core drilling machine or core borer (Rivera v 15 Broad Street, LLC, 76 AD3d 621, 906 NYS2d 333 [2d Dept. 2010]).

Regulation § 23-1.11 dealing with “lumber and nail fastenings,” held inapplicable in
Maldonado v Townsend Avenue Enterprises, 294 AD2d 207, 741 NYS2d 696 (1st Dept. 2002).

Regulation § 23-1.12(c) requiring safety features for certain power-driven saws, is not a catch-all for all power tools; and held inapplicable to grinder (Conforti v Bovis Lend Lease LMB, Inc., 37 AD3d 235, 829 NYS2d 498 [1st Dept. 2007]). 

Regulation § 23-1.12(c)(1) requiring portable saws not provided with saw tables be equipped with fixed guards above base plate and removable self-adjusting guards below base plates, is sufficiently specific to support a § 241(6) cause of action (Haider v Davis, 35 AD3d 363, 827 NYS2d 179 [2d Dept. 2006]).

Regulation § 23-1.13 is sufficiently specific safety directive to support a § 241(6) cause of action (Rice v Cortland, 262 AD2d 770, 691 NYS2d 616 [3d Dept. 1999]).  Regulation § 23-1.13 provides specific guidelines to protect workers against electrocution, held inapplicable where defendant subject to jurisdiction of Public Service Commission (Greenough v Niagara Mohawk Power Corp., 13 AD3d 1160, 787 NYS2d 762 [4th Dept. 2004]).          

With respect to regulation § 23-1.13(b), questions of fact existed regarding whether defendant violated specific electrical regulatory provisions of § 23-1.13(b)(4), (5) where self-employed master electrician injured as result of fall from ladder while working on exterior of building (Adams v Owens-Corning Fiberglass Corporation, 260 AD2d 877, 688 NYS2d 788 [3d Dept. 1999]). 

Regulation § 23-1.15 dealing with safety railings, is sufficiently specific to support a § 241(6) claim and, along with § 23-1.7(b)(1) governing “hazardous openings”, held sufficient to make out prima facie § 241(6) claim where plaintiff and coworker were carrying scaffold between building and empty swimming pool at building renovation project when plaintiff stepped on edge of pool, tile cracked, and he fell to bottom of pool (Mazzu v Benderson Dev. Co., supra); regulation may provide a basis for cause of action under § 241(6) when considered in conjunction with failure to comply with § 23-1.7(b)(1), a regulation mandating hazardous openings be guarded by fastened covers or safety railings (Wells v British American Development Corp., supra); inapplicable where plaintiff not provided with safety railing (Forschner v Jucca Co., supra; see also Holly v Chautauqua, 63 AD3d 1558, 881 NYS2d 741 [4th Dept. 2009]; Ferluckaj v Goldman Sachs & Co., 53 AD3d 422, 862 NYS2d 473 [1st Dept. 2008]; Kwang Ho Kim v D & W Shin Realty Corp., supra; Dooley v Peerless Importers, Inc., supra; Garlow v Chappaqua Central School Dist., supra; Dzieran v 1800 Boston Road, LLC, supra; Partridge v Waterloo C.S.D., supra; Wells v British American Development Corp., supra).

Regulation § 23-1.15(c) requiring “safety railings” be constructed with “a one-inch by four-inch toeboard except when railing is installed at grade or ground level or is not adjacent to any opening, pit or other area which may be occupied by any person”, is sufficiently specific to support a § 241(6) claim (Shaheen v Hueber-Breuer Const. Co, supra); and inapplicable where there was no workers below elevated platform on which plaintiff worked (Macedo v J.D. Posillico, Inc., 68 AD3d 508, 891 NYS2d 46 [1st Dept. 2009]).

Regulation § 23-1.16 prescribing standards for safety belts, harnesses and lifelines, is sufficiently specific to support a § 241(6) claim (Farmer v Central Hudson Gas & Elec. Corp., 299 AD2d 856, 750 NYS2d 407 [4th Dept. 2002]); and sufficient to sustain plaintiff’s § 241(6) claim where plaintiff telephone linesman climbed 24–foot extension ladder as part of job removing telephones wires from existing pole and splicing wires onto newly strung cable, was struck by severe electrical shock and thrown to ground while standing on ladder (Mills v Niagara Mohawk Power Corp., 262 AD2d 901, 692 NYS2d 493 [3d Dept. 1999]; but see Bennion v Goodyear Tire & Rubber Co., supra [holding regulation not applicable because plaintiff’s accident did not involve faulty safety belt or lack of safety belt]). 

Regulation § 23-1.16 held inapplicable where plaintiff not provided with such safety equipment (Forschner v Jucca Co., supra; Ferluckaj v Goldman Sachs & Co., supra; Kwang Ho Kim v D & W Shin Realty Corp., supra; Garlow v Chappaqua Central School Dist., supra; Dzieran v 1800 Boston Road, LLC, supra); and does not prescribe when safety belts and other enumerated devices are required and therefore, is inapplicable where such devices have not been provided (Partridge v Waterloo C.S.D., supra).

Regulation § 23-1.16(d) requiring tail lines not exceed four feet, held applicable where plaintiff testified that his tail line was approximately six feet long and claimed the excess length was a cause of his injury (Macedo v J.D. Posillico, Inc., supra).

Regulation § 23-1.17 prescribing standards for life nets, was held inapplicable where plaintiff not provided with such equipment.  Forschner v Jucca Co., supra; see also Kwang Ho Kim v D & W Shin Realty Corp., supra; Dzieran v 1800 Boston Road, LLC, supra.  Regulation § 23-1.17 was not applicable where plaintiff, while erecting sign on front of building, fell from ladder when it slipped and collapsed (Lawyer v Rotterdam Ventures, 204 AD2d 878, 612 NYS2d 682 [3d Dept. 1994]; not applicable because plaintiff was not using life net at time he fell (Bennion v Goodyear Tire & Rubber Co., supra). 

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