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Labor Law Pointers - Volume II, No. 6

From the Editor:

            Hurwitz & Fine has exciting news for all readers of Labor Law Pointers; we opened our New York City area office this month.  With offices in Buffalo, Albany and now Melville we have attorneys on the ground; across the state; ready, willing and able to handle your labor law needs in any venue, at any time.  We are also very pleased to add Elizabeth Fitzpatrick to our labor law team.  She is our resident partner in the Melville office, and is an outstanding attorney with over 20 years’ experience handling complex litigation, appeals and coverage matters.  As you are all so keenly aware, contractual and coverage issues are almost always a key element to every labor law case and having Beth on our team is a huge asset.  While we have always handled cases in the NYC metro area the increase in the volume has lead us to take this next step and open a physical office there.

            That is not all the news for this month; we have also refined the format of Labor Law Pointers.  We will no longer have separate columns for the different sections of the labor law.  I felt that we were getting to the point where we were repeating the facts of some cases two or three times to provide you with analysis relative to the different sections of the labor law.  What we have done for this issue, and will continue moving forward, is to have the facts of each case briefly outlined for you and then we will provide analysis regarding each section of the labor law separately below the facts.  

You will also notice that we have changed the manner in which we provide access and a link to the actual case.  Instead of having the entire case site in the newsletter, we now have just the case name with the date and court.  The case name is now a hyperlink to the official reporter so that all you need to do is click on the name and you will be taken directly to the full case text.  Additionally each section of the analysis is now identified with the section of the labor law for which the case is being reviewed. That section identification is also a hyperlink to the actual statute.  The initials of the team member who provided the analysis is also a hyperlink so simply control/click on the initials and it will generate an email to that team member.  This will make it simple to provide us with your questions or comments quickly and easily as you are reading the newsletter, and we really do love questions and comments.

            Our analysis will continue to be provided by the same team members.  I will review and analyze the Labor Law § 240(1) cases, Jennifer Ehman will cover the Labor Law § 241(6), Steve Peiper will cover indemnity issues in Labor Law, Chris Potenza will review the Labor Law § 200 cases and Marc Schulz with address the Labor Law § 241(6) NYCRR regulation as to which are sufficiently specific to be considered and their scope of applicability.  What we have done, we hope, is made the newsletter more easily read and understood.

I know that you only have so much time in the day and while being able to access important developments in the labor law is vital, being able to do so quickly and concisely is not only helpful, but essential.  Our goal is to allow you to access the information and analysis you need quickly and easily.  I hope you like the new format.  If you have any suggestions to make Labor Law Pointers better I am not only open to them, but encourage you to make them.  We do this for you and whatever we can do to assist you in doing your job better and more efficiently, we will always do.  Please let me know your thoughts.
Enough housekeeping for this month, the cases and analysis are below in the new format.  We hope you enjoy it.  As always, if you have any questions, please contact us.  Each author’s initials follow their comments and is a hyperlink to their email to make it easy for you to ask questions or make comments, and we love questions and comments.
David

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

424 Main Street
Suite 1300 Liberty Building
Buffalo, New York 14202
Phone:  716.849.8900
Direct:  716.849.8916
Fax:  716.855.0874
Cell:  716.553.6901
Email:  [email protected]
H&F Website:  www.hurwitzfine.com

 

 

Labor Law Pointers is published the first Wednesday of each month.  If you know of others who may wish to subscribe to this free publication, please feel free to forward it.  If you wish to subscribe or unsubscribe, please send an e-mail to [email protected] or call the Editor/Labor Law Team Leader David R. Adams directly at (716) 849-8916.

 

Argesti v Silverstein Props, Inc.
March 15, 2013
Appellate Division, First Department

            Two workers were using an improvised scaffold between two and five feet above the plaintiff’s head when the scaffold collapsed, causing a wooden plank to fall and strike plaintiff in the head. 

Labor Law § 240(1) (DRA)

            Partial summary judgment in favor of plaintiff was proper since an enumerated safety device, the makeshift scaffold in this case, proved inadequate to shield plaintiff from “the harm flowing directly from the application of the force of gravity.”  The First Department noted that the lack of certainty as to exactly what preceded the accident or the fact that plaintiff failed to point to a specific defect in the scaffold does not require the denial of plaintiff’s motion.

PRACTIC POINT:    In any labor law case the defense has a difficult time.  In a falling object case, the defense generally has a tougher time as it makes for a very hard sole proximate cause argument.  In the instant case, the defense had the double whammy, a falling object case where the falling object was, in fact, the safety device which was designed to protect the plaintiff.  Is anyone surprised at the outcome here?

 

Godoy v Neighborhood Partnership Huos. Dev. Fund Co., Inc.
March 6, 2013
Appellate Division, Second Department

            Plaintiff was a demolition worker employed by the third-party defendant to work on a demolition project.  While picking up demolition debris on the first floor of a building, plaintiff allegedly sustained injuries when the floor collapsed beneath her and she fell to the floor of the basement below.  Plaintiff moved for summary judgment on the issue of liability on her Labor Law § 240(1) cause of action and third-party defendant cross-moved for summary judgment.  The Supreme Court granted plaintiff’s motion.

Labor Law § 240(1) (DRA)

            Labor Law § 240(1) imposes a nondelegable duty upon owners and general contractors to provide safety devices to protect workers from elevated-related risks.  “To impose liability pursuant to Labor Law § 240(1), there must be a violation of the statute and that violation must be a proximate cause of the plaintiff’s injuries.  Where there is no statutory violation, or where the plaintiff is the sole proximate cause of his or her own injuries, there can be no recovery under Labor Law § 240(1).”

Here, plaintiff demonstrated her prima facie entitlement to judgment as a matter of law by submitting evidence that the floor where her accident occurred was unstable and that she was not provided with any safety devices despite the potential elevation risks involved.  In opposition, however, third-party defendant raised a triable issue of fact by submitting an affidavit of its co-owner, who was supervising the work site at the time of plaintiff’s accident.  In his affidavit, the co-owner stated that the area where plaintiff fell had been cordoned off because the floor was unstable, and, moreover, he had specifically told plaintiff several times not to enter the restricted area; the last time he told her was 30 minutes before the accident. 

Accordingly, a triable issue of fact exists as to whether plaintiff’s actions were the sole proximate cause of her alleged injuries.  Therefore, the Second Department held that the Supreme Court should have denied that branch of plaintiff’s motion for summary judgment.  Nevertheless, the Supreme Court properly denied that branch of the third-party defendant’s motion which was for summary judgment.  During her deposition, plaintiff denied that an area of the work site had been cordoned off and that she had been warned not to enter.  Thus, the Second Department held the trier of fact could draw conflicting inferences as to how the accident actually occurred, precluding an award of summary judgment to the third-party defendant.

PRACTICE POINT:   This is one of the few cases where telling the plaintiff not to do something is all that is needed.  It is not necessary to direct the plaintiff to an appropriate, adequate and available safety device that he has been told to use where he is being told to avoid an area of the site.  Here, it is not a device the plaintiff was told not to use but rather an entire area of the job site where he was told not to go as it was unsafe.  Generally if you tell a plaintiff to use only a 6’ ladder to do a job, but only have a 4’ ladder on site and the plaintiff uses that 4’ ladder, falling and getting hurt, you do not have a sole proximate cause case because the appropriate and adequate safety device was not available.  In a very small number of cases, it is sufficient to simply tell the plaintiff not to work in a specific area as it is unsafe there.  This is not telling him the method of doing the job is unsafe, but rather not to go in that area at all.  In the instant case, there remains a question of fact as to whether the plaintiff was told not to work in that specific area and thus, summary judgment is not appropriate for either party.

 

Torres v Perry St. Dev. Corp.
March 6, 2013
Appellate Division, Second Department

Plaintiff commenced this action to recover damages for injuries he allegedly sustained in an accident at a construction site owned by the Perry defendants.  According to the plaintiff, he was walking past a 20-foot extension ladder which a worker from another trade was using to scrape the ceiling, when the ladder suddenly fell, and he was struck by both the failing ladder and the worker who had been standing on it.  Plaintiff allegedly was employed at the time of the accident by a masonry subcontractor hired by defendants, The J 40, LLC and The J Construction Company, LLC (collectively “the J defendants”), who acted as the construction managers on the project.  The Supreme Court denied plaintiff’s summary judgment motion and granted the defendants cross-motions to dismiss the complaint. 

 

 

Labor Law § 240(1) (DRA)

            Contrary to plaintiff’s contention, the Supreme Court properly denied his motion for summary judgment on the issue of liability insofar as asserted against the J defendants.  The primary purpose of Labor Law § 240(1) is to extend special protections to “employees” and “workers.”  To be entitled to the protections of § 240(1), a plaintiff must “demonstrate that he was both permitted or suffered to work on a building or structure and that he was hired by someone, be it the owner, contractor or their agent.” 

            Plaintiff failed to establish his prima facie entitlement to judgment as a matter of law in this case since there is a triable issue of fact as to whether he was employed within the meaning of the Labor Law; that is, whether, at the time of the accident, he was “permitted or suffered to work” at the site.  While plaintiff testified at his deposition that, at the time of accident, he was working on the first floor of the site as a “helper” transporting materials to the masons who were installing new elevator shafts, the J defendants’ field superintendent, Mr. Arlotta, testified that plaintiff arrived at the site wearing street cloths looking for the masonry subcontractor to get paid for a prior job and that plaintiff was not working at the site.  Mr. Arlotta testified he escorted plaintiff off of the premises, but 20 to 30 minutes later, he received a phone call informing him that plaintiff was claiming “he had gotten hurt.”  Mr. Arlotta also testified that only one mason was working that day, the mason was working on the sixth or seventh floor, only one laborer named “Alvarez” was working that day, and no work was being performed on the first floor where the accident allegedly occurred.

            The Second Department held the determination of the Workers’ Comp Board (WCB) that plaintiff sustained a work-related injury does not collaterally estop the J defendants from arguing that he was not employed at the site at the time of the accident because there is no indication in the record that this was a disputed issue at the WCB proceeding or that the WCB specifically adjudicated this issue. 

            However, the Supreme Court erred in granting the defendants cross-motions for summary judgment dismissing the complaint.  The defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the § 240(1) cause of action because their evidence submitted in their respective motions did not establish “the absence of a causal nexus between the worker’s injury and a lack or failure of a device prescribed by § 240(1).”  The Second Department held plaintiff’s deposition testimony raised a triable issue of fact as to whether the ladder and the unidentified worker fell on him “because of the absence or inadequacy of a safety device of the kind enumerated in the statute.”  Contrary to defendants’ contentions, the injury did not result “from a separate hazard wholly unrelated to the risk which brought about the need for the safety device in the first place.”  Rather, the Second Department held the injury allegedly occurred when the “protective device proved inadequate to shield the injured worker form harm directly flowing from the application of the force of gravity to an object or person”, and the hazard presented here is of the type contemplated in Labor Law § 240(1). 

PRACTIC POINT:    First, to qualify as a plaintiff in a Labor Law case the plaintiff needs to be employedHere, there is a question of fact in that regard.  As to the defendants’ summary judgment motions, recall that the moving party has the burden of proof; thus, with the plaintiff and defendants arguing about whether or not the plaintiff was employed, a clear issue of fact was present. 

Labor Law § 241(6) (JAE)

With respect to the 241(6) claim, predicated upon 12 NYCRR 23-1.21(b)(4)(iv), the court held that defendants failed to establish entitlement to its dismissal.  The court held that it was of no consequence that plaintiff was not on the ladder when he was injured, so long as the violation of the Industrial Code was a proximate cause of his injuries. 

PRACTICE POINT:    23-1.21(b)(4)(iv) provides:

[w]hen work is being performed from ladder rungs between six and 10 feet above the ladder footing, a leaning ladder shall be held in place by a person stationed at the foot of such ladder unless the upper end of such ladder is secured against side slip by its position or by mechanical means.  When work is being performed from rungs higher than 10 feet above the ladder footing, mechanical means for securing the upper end of such ladder against side slip are required and the lower end of such ladder shall be held in place by a person unless such lower end is tied to a secure anchorage or safety feet are used.

The applicability of this provision does not hinge on whether plaintiff was injured as a result of actually falling from the ladder.  It can also apply where plaintiff is struck by the ladder or an object/person falling from it so long as the violation of the provision is the proximate cause of the accident.

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

            As to Labor Law § 200 and common-law negligence, where, as here, a plaintiff's claim arises out of alleged defects or dangers in the methods or materials of the work, the plaintiff must show that the defendant had the authority to supervise or control the performance of the work.  A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed.   In this case, the defendants each failed to make a prima facie showing that they did not have the authority to control the manner in which the plaintiff, or the workers using the ladder which allegedly caused his injury, performed their work.

 

Alonzo v Safe Harbors of the Hudson Hous. Dev. Fund Co., Inc.
March 12, 2013
Appellate Division, First Department

            Plaintiff worked as a carpenter’s assistant in connection with the conversion of a hotel into a residential apartment building.  On the third story of the building, Plaintiff was walking towards a window, through which insulation was being delivered, when he stepped on an eight-by-four-foot section of ¾-inch thick plywood, which unexpectedly “flipped up.”  The sheet of plywood had been placed over opening in the floor.  Plaintiff fell through the hole, ten or twelve feet to the story below.

            Defendant Mountco was the general contractor.  Mountco’s superintendent testified that on the morning of the accident, he had walked through the area where plaintiff later fell, and had observed the sheet of plywood covering the hole.  According to the superintendent, the hole had been made to facilitate the passage of debris and materials from one floor to another.  However, he stated that when he saw it that morning, the plywood had been nailed down and the word “Hole” had been written on it in orange spray paint.  He further testified that he had been “advised” that plaintiff himself had removed the protective plywood from the opening before his fall. 

            Defendants moved for summary judgment dismissing the complaint for violations of Labor Law §§ 240(1), 241(6), 200 and common-law negligence. Defendants argued that plaintiff’s fall through an opening in a level floor was not an elevated-related accident.  They further argued that plaintiff himself removed the plywood covering the opening, rendering him the sole proximate cause of his accident.  Defendant Safe Harbors asserted that it was not any owner, contractor, or owner’s agent, and thus, could not be held liable under § 240(1). 

            Plaintiff cross-moved for summary judgment on his §§ 240(1), 241(6) claims, asserting that that the “uncompleted” and “temporary” nature of the area through which he fell rendered it the functional equivalent of a scaffold, and that the unprotected opening constituted a violation of the statute.  Plaintiff further argued there was no view of the evidence that would support a finding that he caused his own accident by removing the protective plywood.  The Supreme Court denied both motions, holding that issues of fact existed as to whether the floor opening was properly secured and whether defendants were on notice of the hazard and had time to take, or did take, any preventive measures. 

Labor Law § 240(1) (DRA)

             The First Department stated that plaintiff’s § 240(1) claim does not depend on a finding that defendants were in control of the work site; rather all plaintiff was required to establish was that defendants breach their non-delegable duty to furnish or erect, or cause to be furnished or erected, safety devices in a manner that gave him proper protection from gravity-related risks.  Here, the gravity-related risk was a sizable hole in the floor that had been made specifically to aid in the construction project.  Courts have repeatedly held that § 240(1) is violated when workers fall through unprotected floor openings.  Consequently, the First Department held that plaintiff established a prima facie violation of the statute by showing that the plywood cover on the hole was an inadequate safety device because it was not secured at the time of the accident.

            Defendants failed to create an issue of fact as to the adequacy of the unsecured plywood cover.  Mountco supervisor’s testimony that the cover was fastened by nails a short while before the accident is irrelevant because liability under § 240(1) is not dependent on a finding that the owner or general contractor had notice of the violation.  Further, they failed to create an issue of fact as to whether plaintiff was the sole proximate cause of the accident because the only evidence presented to support this theory was Mountco supervisor’s hearsay testimony that a worker whom he did not identity “advised” him of this fact.  The First Department held that in the absence of any additional, non-hearsay evidence on this issue, plaintiff is entitled to judgment as a matter of law.  However, it was impossible for the First Department on this record to determine who the owner of the property was for liability purposes.

PRACTIC POINT:  It cannot be overstated that the sole proximate cause defense is unavailing where, as here, Labor Law § 240(1) is violated.  As there was a failure of the safety device, here the unprotected floor opening that plaintiff fell through; no action of the plaintiff could therefore be the sole proximate cause of the accident.

 

Labor Law § 241(6) (JAE)

Unlike Labor Law § 240(1) claim, the court held that plaintiff's Labor Law § 241(6) claim was not dependent on defendants’ degree of control over his work.  Rather, the court emphasized that it was dependent on the application of a specific Industrial Code provision and a finding that the violation of the provision was a result of negligence.

Section 23-1.7(b)(1)(i) requires that “[e]very hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing.”  This section was violated, because the hole into which plaintiff fell was dangerous and unguarded.  

Likewise, since the opening was being actively used in connection with the construction, § 23-1.7(b)(1)(ii) was violated, because that section requires “a barrier or safety railing . . . [to] guard [the] opening.”  The court rejected the contention that both of these sections were inapplicable because the hole was less than 15 feet deep.  It noted that these provisions do not contain the 15-foot minimum depth requirement contained in other section (i.e., 23-1.7(b)(1)(iii)(a)).

Further, the court held that plaintiff also established defendants violated § 23-3.3(j)(2)(i), which provides that “[e]very opening used for the removal of debris or materials . . . shall be provided with an enclosure.”  The record contained evidence that the hole into which plaintiff fell was used for that exact purpose.

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

            Where, as here, a construction accident arises out of the means and methods of the work, as opposed to a dangerous condition on the site, liability under Labor Law § 200 or for common law negligence may be imposed where the defendant exercised control or supervision over the work and had actual or constructive notice of the purportedly unsafe condition.  Here, plaintiff testified that he worked under the direction of his own employer's foreman, was not supervised by anyone else, and did not know who owned the building. While Mountco may have been responsible for ensuring that work was proceeding according to schedule, and its superintendent regularly inspected the work site for that purpose and had the authority to stop any work he observed to be unsafe, that general level of supervision is not enough to warrant holding it liable for plaintiff's injuries. Since no evidence in this record establishes that either Cornerstone or Safe Harbors had any supervisory role in the construction at issue, they too are entitled to summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims as against them.

 

Clavijo v Atlas Terms, LLC
March 12, 2013
Appellate Division, First Department

               Plaintiff was injured in the course of building a mezzanine floor by nailing plywood to beaming when he stepped through a ceiling tile he believed to be plywood and fell to the concrete floor below.  The Supreme Court granted plaintiff’s motion for partial summary judgment. 

Labor Law § 240(1) (DRA)

The First Department held that plaintiff established his entitlement to summary judgment by showing that defendant Atlas failed to provide any safety device that would have prevented his fall.  In opposition, Atlas failed to raise an issue of fact whether plaintiff was a recalcitrant worker or the sole proximate cause of his accident because the only evidence it submitted was the testimony of the owner or Marlite, plaintiff’s employer, that safety harnesses were available at the site but that he did not know where they were kept or whether plaintiff knew of their existence.

PRACTIC POINT:  It is critical that defendants, as the moving party, disassociate the alleged safety devices enumerated in Labor Law to the accident when asserting the sole proximate cause defense.  Recall that for a recalcitrant worker defense, a worker must intentionally disregard warnings or instructions.  The defense was doomed by their inability to establish that the plaintiff was aware of the location and availability of safety harnesses.  This case further underscores the need to obtain statements from and depose all witnesses to an accident. 

Indemnity Issues in Labor Law (SEP)
 
In addition, the court also granted Atlas’ motion seeking contractual indemnification against Marlite. In support of the conclusion, the Court noted that Marlite’s decision to deploy a worker without proper safety equipment amounted to carelessness, negligence or improper conduct.

DelRasrio v United Fed. Credit Union
March 14, 2013
Appellate Division, First Department

            Plaintiff, a carpenter employed by third-party defendant Eurotech Construction Corp., was injured during the construction of new building owned by defendant United Nations Federal Credit Union (UNFCU).  Plaintiff was standing on an A-frame ladder when he was struck on the left side of his face by a live, energized and exposed electrical wire.  When he pulled away from the wire, the ladder wobbled and moved, causing him to lose his balance and fall to the ground.  Defendant Tishman Construction Corp. was the project’s general contractor and defendant Petrocelli Electric Co. was the electrical subcontractor.  The Supreme Court denied plaintiff’s summary judgment motion on the issue of liability with respect to his § 240(1) cause of action. 

Labor Law § 240(1) (DRA)

The First Department reversed under these circumstances because the record establishes that the ladder provided to plaintiff was inadequate to the task of preventing his fall when he came into contact with the exposed wire and was a proximate cause of his injury.

PRACTIC POINT:  The case reinforces the proposition that any time a plaintiff falls from an unsecured ladder due to the fact the ladder shifts or collapses, it is a Labor Law case.  The rationale is that if the ladder shifts or collapses, the ladder was not an adequate safety device and thus, the statute is violated.  If the statute is violated, then the court’s logic states that nothing else, including the actions of the plaintiff, can be the sole proximate cause of the fall and injury.

 

Labor Law § 241(6) (JAE)

The court affirmed Plaintiff’s entitlement to judgment on his Labor Law § 241(6) claim, predicated on violations of 12 NYCRR 23-1.13(b)(3) and (4).  It held that these sections are clear and specific in their commands.  Before work is started, it is to be ascertained whether the work will bring a worker into contact with an electric power circuit, and, if so, that the worker not be permitted to come into contact with the circuit without it being de-energized.   Here, the record showed that the exposed, live circuit in the ceiling hit plaintiff in the face and was a proximate cause of his injury.

Steiger v LPCiminelli, Inc.
March 15, 2013
Appellate Division, Fourth Department

            Plaintiff sustained injuries when he tripped and fell while exiting a portable toilet located on land owned by defendant Orchard Park CCRC, who hired Ciminelli to act as the general contractor or construction manager for the construction of a retirement community (Fox Run).  Plaintiff was employed as a service technician by a telephone company (employer), which contracted directly with Orchard Park for the installation of fiber optic telephone, Internet, and cable TV systems at Fox Fun.  On the date of the accident, plaintiff was working inside Fox Run’s healthcare center building (health center).  After finishing his work for the morning, plaintiff and a coworker planned to leave for lunch. 

            Plaintiff and the coworker left the health center and walked into the parking lot in front of the building, where their trucks were parked.  Before leaving for lunch, plaintiff decided to use one of the portable toilets located on the sidewalk adjacent to the parking lot.  The toilets were set back approximately 1½ to 2 feet from the sidewalk curb.  Plaintiff stepped onto the curb from the parking lot and entered one of the toilets.  When plaintiff exited the toilet, he took a step with his right foot onto the sidewalk, rolled his left ankle on the edge of the curb, and fell into the parking lot, breaking his right wrist and injuring his left ankle.  Defendants appeal from the Supreme Court’s order that denied their motion for summary judgment.

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

            Where, as here, the worker's injuries result from a dangerous condition at the work site rather than from the manner in which the work is performed, the general contractor or owner may be liable in common-law negligence and under Labor Law § 200 if it has control over the work site and has created or has actual or constructive notice of the dangerous condition.  The Fourth Department concluded that defendants failed to meet that burden of proof on the motion for summary judgment, except with respect to Ciminelli on the issue of actual notice.

            Defendants failed to demonstrate that Ciminelli lacked any supervisory control over the general condition of the premises inasmuch as their own submissions established, inter alia, that Ciminelli's project superintendent and project manager had offices on the premises and were present at the construction site on a daily basis, held coordination meetings with field personnel, and required all contractors and subcontractors to sign a safety form. 

 

            Defendants likewise failed to establish that Ciminelli did not create the allegedly dangerous condition, i.e., the placement of the portable toilets in proximity to the curb. It is undisputed that Ciminelli was responsible for the placement of the portable toilets, and Ciminelli failed to demonstrate as a matter of law that the placement of the portable toilets did not constitute a dangerous condition.

            Defendants also failed to establish that Ciminelli lacked constructive notice of the condition, i.e., they failed to establish as a matter of law that the condition was not visible and apparent or that it had not existed for a sufficient length of time before the accident to permit Ciminelli or its employees to discover and remedy it. The portable toilets had been located on the sidewalk for at least a week prior to the accident, and Ciminelli representatives were present at the work site on a daily basis. Moreover, the photographs in the record establish that the potential danger created by the placement of the portable toilets, i.e., their proximity to the sidewalk curb, is readily apparent.

            The Fourth Department agreed with the defendants, however, that they met their burden of establishing Ciminelli's lack of actual notice as a matter of law by showing that it did not receive any complaints about the area prior to plaintiff's fall, and that plaintiff failed to raise a triable issue of fact with respect thereto.  As such, the Fourth Department modified the order of the Supreme Court by granting that part of defendants' motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims against Ciminelli insofar as they are premised upon actual notice only.

            The Fourth Department further modified the order by granting those parts of defendants' motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims against Orchard Park in their entirety.Defendant Orchard Park established that it lacked control over the general condition of the premises and neither created nor had actual or constructive notice of any allegedly dangerous condition thereof, and plaintiff failed to raise a triable issue of fact.  The executive director of Fox Run testified at his deposition that Orchard Park had no responsibility for directing or controlling the construction work, and had no responsibility for site safety. Orchard Park did not have a representative on the job site on a regular basis and was not involved in acquiring or placing the portable toilets at the site.

Labor Law § 241(6) (JAE)
Plaintiff’s 241(6) claim, premised upon defendants’ alleged violation of 12 NYCRR 23-1.7 (e)(1), was dismissed.  This section provides that “[a]ll passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping.”  The Court concluded that defendants established the provision was inapplicable.  The area where the accident occurred was not a “passageway” that defendants were obligated to keep free of obstructions or other conditions that might cause tripping.
Although the regulations do not define the term “passageway”, courts have interpreted the term to mean a defined walkway or pathway used to traverse between discrete areas as opposed to an open area.  Here, plaintiff tripped on the curb of a sidewalk that bordered the parking lot and that ran along the front of the health center.  Plaintiff, in his own words, described the parking lot as a “big . . . open parking lot” where he and other workers parked their vehicles.
Further, with respect to the sidewalk itself, plaintiff “was not using [it] as a passageway when the accident occurred.”  When plaintiff tripped, he was not using the sidewalk at issue as a means of traveling between work areas or between his work area and the parking lot where his vehicle was parked.  Plaintiff in fact testified that, during the month that he was working in the health center, he never walked on the sidewalk at issue because “[t]he johns were on them.” Rather, plaintiff stepped over the sidewalk into the parking lot, and thus the alleged passageway itself was the “obstruction” (12 NYCRR 23-1.7 [e] [1]).  Had plaintiff been using the sidewalk as a passageway, he would not have encountered the same tripping hazard.
PRACTICE POINT:  A parking lot is not considered a passageway here within the meaning of 12 NYCRR 23-1.7.  The key to determining whether something is a passageway as that term is used in this section is to consider whether the area is a “means of traveling between work areas.”
Rodriguez v Dormitory Auth. of the State of NY
March 19, 2013
Appellate Division, First Department

            Plaintiff’s accident was allegedly caused by a dangerous condition on the premises rather than the means or methods of plaintiff’s work in that a scaffold clamp had been left on the floor where plaintiff was walking while carry boxes.  Defendants DANSY and Bovis Lend Lease appealed from the denial of their summary judgment motion dismissing the complaint and on their contractual claims.

Labor Law § 200 and common-law negligence (VCP)

            The First Department overturned the Supreme Court, and granted the motions for summary judgment dismissing plaintiff's common-law negligence and Labor Law § 200 claims against defendants DASNY and Bovis. Given that the accident was caused by a dangerous condition on the premises, rather than by the means or methods of plaintiff's work, defendants met their burden by showing that they neither created nor had actual or constructive notice of the alleged dangerous condition, namely, that a scaffold clamp that had been left on the floor where plaintiff was walking while carrying boxes. Plaintiff's testimony failed to raise an issue of fact, since he merely testified that he had seen similar hazards on the floor on the day of the accident and the day before; there was no testimony indicating how long the specific clamp that caused his fall had been in the location of his accident.  The First Department however upheld the denial of defendant Enclos's motion for summary judgment, finding issues of fact about whether Enclos created the hazardous condition.

Labor Law § 241(6) (JAE)

The court dismissed Plaintiff’s Labor Law § 241(6) claims with the exception of the claim based on 12 NYCRR 23-1.7(e)(2). With respect to 23-1.7(e)(2), which addresses the need to keep working areas free from accumulation of dirt and debris and from scattered tools and materials, the court held that defendants failed to make a prima facie showing that its violation did not cause the accident.  Plaintiff testified that scaffold clamps, including the one that caused his accident, were scattered across the working area, causing him to trip and fall.

 

Sections 23-2.1(a)(1) and 23-1.7(e)(1) were inapplicable, since plaintiff’s testimony established that the accident occurred in an open working area near a passageway, rather than in the passageway itself.  Section 23-1.7(d) was also inapplicable, as the accident was not caused by a foreign substance.

Giovanniello v E.W. Howell, Co., LLC
March 20, 2013
Appellate Division, Second Department

            In an action to recover for personal injuries, plaintiffs appeal from an order of the Supreme Court that granted defendants Fratello Construction Corp., Recine Materials Corp. and PMC Rebar, Inc.’s motions for summary judgment dismissing the complaint as asserted against each of them.          

Labor Law § 200 and common-law negligence (VCP)

            To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed, a defendant must have authority to exercise supervision and control over the work.  Where a plaintiff's injuries arise not from the manner in which the work was performed, but from a dangerous condition on the premises, a defendant may be liable under Labor Law § 200 if it  either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition.  When an accident is alleged to involve defects in both the premises and the equipment used at the work site, a defendant moving for summary judgment with respect to causes of action alleging a violation of Labor Law § 200 is obligated to address the proof applicable to both liability standards.

            In this case, defendant Fratello established, prima facie, both that it did not create or have actual or constructive notice of the alleged condition which caused the injured plaintiff's injury, and that it lacked the authority to supervise or control the means and methods of the injured plaintiff's work.  In opposition, the plaintiffs failed to raise a triable issue of fact.

            As for the defendants Recine Material Corp. and PMC Rebar, Inc., both of which were subcontractors on the project, Labor Law § 200 liability cannot be assessed against a subcontractor who did not control the work that caused the plaintiff's injury.  Recine and PMC established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them by demonstrating that they did not control the work which allegedly caused the injured plaintiff's injury, and plaintiffs failed to raise a triable issue of fact. Further, Recine and PMC established their prima facie entitlement to judgment as a matter of law on the causes of action alleging common-law negligence insofar as asserted against them by demonstrating, prima facie, that their employees did not create an unreasonable risk of harm that caused or contributed to the injured plaintiff's accident, and plaintiffs failed to raise a triable issue of fact.

Indemnity Issues in Labor Law (SEP)

            As noted above, Recine and PMC both established, as a matter of law, that they (a) did not supervise, direct or control the work of the injured party or (b) have notice of an allegedly defective condition at the jobsite. Accordingly, as neither were assigned any portion of negligence with respect to this claim, it follows, of course, that were there can be no common law indemnity claim asserted against them. 

Esteves-Rivas v W2001z/15CPW Realty, LLC
March 20, 2013
Appellate Division, Second Department

            Plaintiff was installing a car tracker system in a parking garage using a ladder that had been provided to him by his employer, non-party Park Plus, when he lost his balance and fell to the ground.  Plaintiff brought suit against the owner of the garage and Quick Park, the manager of the garage, alleging violations of Labor Law § 240(1), § 241(6), § 200 and common-law negligence.  CPW Realty asserted cross-claims against Quick Park for common-law indemnification.  The Supreme Court denied plaintiff’s motion for summary judgment on his § 240(1) claim and denied Quick Park’s cross-motion for summary judgment dismissing the complaint and all cross-claims against it.

Labor Law § 240(1) (DRA)

            Labor Law § 240(1) imposes a non-delegable duty upon owners, contractors, or their agents to provide proper protection to a worker performing certain types of construction work.  To prevail on a Labor Law § 240(1) claim, “a plaintiff must establish that the statute was violated and that the violation was a proximate cause of his or her injuries.”  A fall from a scaffold or ladder does not establish, in and of itself, that proper protection was not provided, and the issue of whether a particular safety device provided proper protection is generally a question of fact for the jury.

            In attempting to establish that proper protection was not provided, the Second Department held that a plaintiff cannot prevail by relying, as plaintiff does here, solely on the fact that he fell from the ladder.  Plaintiff testified that he did not feel the ladder shaking or hear any noise from it before he fell, and that the ladder moved only after he had started falling.  The Second Department distinguished this case from those cited by plaintiff, where there was evidence, in addition to the fall itself, that the ladder had failed – by slipping, tipping over, or collapsing – and thereby caused the plaintiff to fall.  As plaintiff in this case failed to submit facts establishing that the ladder failed to provide proper protection, and that this failure caused his injuries, the Second Department held plaintiff failed to establish prima facie entitlement to judgment as a matter of law.  Accordingly, the burden never shifted to defendants to raise a triable issue of fact in opposition to plaintiff’s motion for summary judgment. 

PRACTIC POINT:  Recall the familiar language from Narducci that“[n]ot every worker who falls at a construction site, and not any object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240(1).”  As a large percentage of Labor Law cases which come across my desk are falls from ladders, it is imperative to initially establish that the ladder itself was not defective and then to move on to the exact manner in which the plaintiff fell from the ladder.  Obtaining the ladder, or at least photos of the ladder, is also good practice. 

 

 

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

            The Second Department ruled that the Supreme Court erred in denying Quick Park's cross motion for summary judgment.  In support of its cross motion, Quick Park submitted deposition testimony establishing conclusively that Quick Park's employees' duties at the garage were limited to parking cars and collecting money and that, once Park Plus commenced work on the installation, the work site was under Park Plus’s sole control and it alone was responsible for safety at the site. This testimony established, prima facie, Quick Park's entitlement to judgment as a matter of law dismissing the causes of action alleging violations of the Labor Law § 200 and common-law negligence, and a triable issue of fact was not raised in opposition.

Indemnity Issues in Labor Law(SEP)

            Importantly, with regard to the common law indemnity claim against Quick Park, the Court noted that it “was required only to establish that it did not exercise actual supervision in the installation of car stackers at the garage.”   Here, there was utterly no evidence that it exercised “actual supervision” over the work. 

Hale v Meadowood Farms of Cazenovia, LLC
March 22, 2013
Appellate Division, Fourth Department

            Plaintiff allegedly fell from a ladder while reconstructing a barn that defendants purchased and were having rebuilt on their property.  Plaintiff was injured when a ladder fell from the roof of a barn and knocked him from another ladder on which he was standing.  The property consisted of several smaller parcels that had comprised an estate of 350 acres in the early 1900s. Plaintiff’s employer, Heritage Structural Renovation, was hired to disassemble the barn and reconstruct it on the property.  Plaintiff appealed from the denial of his motion for partial summary judgment on Labor Law § 240(1) and § 241(6) and granted defendants’ cross-motion dismissing the § 240(1) claim.

Labor Law § 240(1) (DRA)

            The homeowner exemption was intended to shield homeowners from the harsh consequences of strict liability because the typical homeowner is no better situated than the hired worker to furnish appropriate safety devices and to procure suitable insurance protection.  “The Court of Appeals cautions against applying an overly rigid interpretation of the homeowner exemption and instead has employed a flexible site and purpose test to determine whether the exemption applies.”  Thus, when an owner of a one or two family dwelling contracts for work that directly relates to the residential use of the home, even if the work also serves a commercial purpose, that owner is shielded by the homeowner exemption from the absolute liability of Labor Law § 240. 

            Here, the individual defendants testified that they did not know whether they purchased the barn in their individual capacity or through Meadowood LLC.  The barn at issue was to be used in part of Meadowood LLC’s commercial operations.  Thus, the Fourth Department held that defendants failed to meet their initial burden of establishing as a matter of law that the homeowner exemption contained in the statute applies to them because there was an issue of fact as to the commercial versus residential nature of the improvements.

PRACTICE POINT:  It is the intention of the owner which controls, not the current status of the structure.  In this case, defendants failed to meet their burden of demonstrating that their intention to purchase and reconstruct the barn was solely for historical preservation purposes.  Remember that the homeowner’s exception is only available to an owner who does not supervise, direct or control the work of the plaintiff.

 

Thompson v 1241 PVR, LLC
March 22, 2013
Appellate Division, Fourth Department

            Plaintiff was injured at a building under construction that was owned by 1241 PVR LLC.   Christa Construction LLC was the general contractor.  Plaintiff fell on ice and snow that had accumulated on the floor of the building where he was framing interior walls before a proper roof or window were installed. 

Labor Law § 241(6) (JAE)

Plaintiff alleged that defendants were liable for his injury pursuant to Labor Law § 241 (6) based on their alleged violation of 12 NYCRR 23-1.7 (d), which concerns slipping hazards arising from, among other things, ice and snow. In this case, it was undisputed that ice and snow had accumulated on the floor and that the general contractor was made aware of that fact. 

Defendants contended that summary judgment, and in turn a finding of negligence, was improper because there was an issue of fact with respect to their affirmative defense of comparative negligence.  Specifically, defendants contended that plaintiff was negligent based on his failure to use tools provided by defendants to remove the ice and snow; his failure to disclose prior back surgeries; and his failure to take proper precautions while moving too quickly on the slippery surface.  The Fourth Department rejected this argument noting that defendants’ duty to remove the ice and snow was nondelegable and, absent any express policy that employees, including plaintiff, were to remove ice and snow, plaintiff could not be held negligent for his failure to undertake defendants’ nondelegable duty.  

Furthermore, defendants failed to raise an issue of fact as to whether plaintiff's alleged failure to disclose his prior back surgeries was a proximate cause of his fall. The foreman testified at his deposition that, if he had been aware of plaintiff’s back condition, he would have required plaintiff to carry fewer metal studs; he did not testify that plaintiff would have been prevented from entering the area where he fell.  Additionally, defendants presented no evidence in admissible form establishing that plaintiff was moving too quickly on the ice and snow at the time of his accident.  Plaintiff’s testimony was the only evidence of what actually occurred just prior to the accident.  None of the other witnesses actually observed his fall. 

PRACTICE POINT:  This is a really interesting case.  The Fourth Department seems to be indicating that contractors can in fact delegate their nondelegable duty directly to employees. 

 

 

Kuntz v WNYG Hous. Dev. Fund Co. Inc.
March 22, 2013
Appellate Division, Fourth Department

            Plaintiff fell from a scaffold at a construction site owned by defendants while attempting to attach an outrigger to the scaffold.  As he reached over the side of the scaffold to attach the outrigger, plaintiff fell from the scaffold and landed to the ground 30 feet below.  Plaintiff testified that he would not have fallen while installing the outriggers had he been given a safety net, safety harness or at least a belt with a lanyard.  Plaintiff moved for partial summary judgment regarding his Labor Law § 240(1) cause of action and defendants cross-moved to dismiss that claim. 

            Plaintiff argued that he is entitled to summary judgment because defendants failed to provide him with adequate safety devices that could have prevented his fall; specifically, a safety belt and lanyard.  Plaintiff further argued that it is irrelevant whether a wood safety railing and cross braces were present on the scaffold when he fell because those items are not safety devices and they would not have prevented him from falling even if they were in place.  Defendants took the position that the scaffold itself and the safety railings and cross braces on it constitute safety devices.  The Supreme Court denied the motion and the cross-motion.

Labor Law § 240(1) (DRA)

            The Fourth Department’s majority agreed with defendants, holding that the evidence submitted by plaintiff raises an issue of fact whether the safety devices provided by defendants afforded him proper protection or whether additional devices were necessary.  Plaintiff’s evidence also raised an issue of fact whether he intentionally removed the safety railing and cross braces from the scaffold and whether such conduct by plaintiff was the sole proximate cause of his injuries.  Although he argued he could not have attached the outrigger in the manner suggested by defendants, there was evidence to the contrary, including testimony of a worker at the site who claimed to have seen plaintiff install outriggers in that manner approximately 50 times before the accident.  Regardless, the Fourth Department held the evidence submitted by defendants in opposition to the motion raises triable issues of fact to defeat the motion as “there is a plausible view of the evidence – enough to raise a fact question – that there was no statutory violation and that plaintiff’s own acts or omissions were the sole cause of the accident.”

            Justice Whalen’s dissent would grant plaintiff’s motion for partial summary judgment as he was at risk of first, falling off the scaffold while he assisted masons in performing his general work duties and second, falling from the specific task of placing the outriggers.  Although conceding that the wooden safety railing and cross braces may have been adequate to protect plaintiff during his general work duties, Justice Whalen believes they were not adequate to protect him from the risks associated with installing the outriggers, especially given the placement of the pallet in his work area.  Lastly, Justice Whalen did not believe there was an issue of fact as to whether plaintiff’s conduct was the sole proximate cause because whether or not the railings and cross braces were there when plaintiff fell is irrelevant as he could not use them as safety devices due to the location of the pallet.  Thus, plaintiff’s conduct cannot possibly be found to be the sole proximate cause because he did not place the pallet in his work area and the pallet caused him to be in a precarious position while attempting to install the outrigger.

 

Town of Amherst v Hilger
March 22, 2013
Appellate Division, Fourth Department

            Defendants Arthur Hilger and Sally Bisher, who were officers of non-party McGonigle and Hill Roofing, Inc. (M&H), refused to seek insurance coverage from non-party New York State Insurance Fund (SIF), M&H’s insurer, with respect to a judgment that plaintiff Town has against M&H.  There is no dispute that M&H, which is now resolved, had insurance coverage under a workers’ comp. and employers’ liability policy issued to it by SIF that was effective at the time of the underlying loss.  There is also dispute that SIF has not paid the Town judgment on behalf of M&H only because of defendants’ obstinate refusal to request that SIF satisfy that judgment. 

            Peter Bissel, a non-party to this action, fell from a ladder that was not properly secured (the accident) and sustained serious injuries.  At the time of the accident, Bissel was working on a building owned by the Town as a roofer employed by M&H.  Arthur Hilger was the president of M&H and died around 2004.  Sally Bisher is Arthur Hilger’s sister, who was the secretary of M&H.  After the accident, Bissell brought suit against the Town alleging Labor Law violations and common-law negligence.  The Town brought a third-party action against M&H that was consolidated with the main action.  The Fourth Department affirmed an order denying the Town’s motion to set aside a jury verdict on liability under § 240(1), affirmed that part of a judgment determining that Bissell sustained a grave injury in the accident, and affirmed the Town judgment directing M&H to indemnify the Town for all amounts paid pursuant to a judgment issued to Bissell’s favor in the main action.

            Plaintiff Granite State issued a liability policy in the amount of $10 million to the Town effective at time of Bissell’s accident that covered the loss resulting from that incident.  The Town satisfied the judgment issued in favor of Bissell in the amount of $23,552,070 using funds provided by the Granite State policy, together with self-insurance provided by the Town.  At the time of the accident, M&H was insured under the SIF policy.

            Plaintiffs commenced this action against defendants and Aaron Hilger in an effort to force the Hilgers to ensure SIF’s compliance with the terms of the SIF policy, alleging that the Hilgers dissolved and liquidated M&H without satisfying the Town judgment.  Plaintiffs moved for summary judgment seeking a money judgment against the Hilgers and s directing the Hilgers to take all necessary actions to ensure that SIF complies with the SIF policy and the Hilgers cross-moved to dismiss the complaint.  The Supreme Court granted Aaron Hilger’s cross-motion to dismiss and otherwise denied the cross-motion.

Indemnity Issues in Labor Law (SEP)

            The ultimate paper judgment?  Not so fast, says Justice Fahey. 

In this matter, the Town of Amherst was properly awarded common law indemnification against M&H.  There is little doubt that Amherst was not negligent, that M&H was negligent, and that the injured party was in the course of his employment with M&H at the time of the incident.  Amherst, and its CGL carrier Granite State, paid the loss to the plaintiff, so its claims for common law indemnity were ripe, right? 

            As aptly noted by Justice Fahey, logically, yes, the loss should be transferred to M&H’s workers’ compensation carrier, The State Insurance Fund.  Out of pure spite, M&H, who has since dissolved, refused to submit the claim to the State Fund for payment.  Instead, M&H chose to have a $30,000,000 judgment entered against it. 

Further, because the State Fund is not subject to Insurance Law 3420 the Town of Amherst had no ability to commence a direct action against the State Fund to compel the Fund to cover the claim.  Unless and until M&H requested coverage, the State Fund refused to pay the judgment.  Again, there is NO ARGUMENT that the judgment is covered, the State Fund just required that it’s insured ask for coverage!

The Town of Amherst tried to argue that M&H’s childish activities were in violation of the General Business Law.  Although the Court found that M&H had not acted in good faith, its remedies for that violation specifically excluded compensatory damages. 

Clearly troubled by the activities in this case, the Fourth Department remanded the matter to the trial court with instructions that the court had the authority under the Business Corporation Law to supervise and control dissolution proceedings.  The power, per Justice Fahey’s ruling, includes the power to compel M&H to provide notice of the judgment to the State Fund.  At that point, presumably, Amherst (and Granite State) will get their duly awarded common law indemnity judgment paid.

In a related matter, the Court did not address whether it will require M&H to eat its vegetables before it can have dessert. 

 

Mercado v Caithness Long Is. LLC
March 26, 2013
Appellate Division, First Department

            Plaintiff, a welder who was working at a power plant being constructed, was struck on the head by a pipe that fell from a height of approximately 85 to 120 feet as a result of a gap in a toeboard installed along a grated walkway near the top of a generator in the power plant.  The Supreme Court granted plaintiff’s cross-motion for summary judgment on his Labor Law §240(1) and § 241(6) claims, granted third-party defendant FMP’s cross-motion dismissing the claim by the Caithness defendants seeking common-law indemnification against it, and granted FMP’s cross-motion for summary judgment dismissing the contractual indemnification claim to the extent that any recovery by plaintiff exceeds a $1 million insurance policy limit.

Labor Law § 240(1) (DRA)

            The First Department held that plaintiff established his injuries were caused, at least in part, by the absence of proper protection required by the statute because it is undisputed that there was no netting to prevent objects from falling on workers.  “Contrary to defendants’ contention, plaintiff is not required to show exactly how the pipe fell since, under any proffered theories; the lack of protective devices was the proximate cause of his injuries.”  Moreover, plaintiff is not required to show that the pipe was being hoisted or secured when it fell because that is not a precondition to liability under the statute.

            Defendants failed to raise a triable issue of fact since they failed to show that the adequate protective devices required by § 240(1) were employed at the site.  The fact that plaintiff was wearing a welding hood but not a hard hat does not raise an issue of fact because a “hard hat is not the type of safety device enumerated in Labor Law § 240(1) to be constructed, placed and operated, so as to give proper protection from extraordinary, elevation-related risks to a construction worker.”

PRACTICE POINT:  The fact that the falling object was not being hoisted or secured is no longer an available defense to a Labor Law § 240(1) cause of action.  My mantra of retaining an expert to address the adequacy of the available safety device for use during motion practice and/or trial would seem to hold water.  Had the defense provided the court with an affidavit indicating that the manner in which the pipe was secured was appropriate or for that matter, that it was not appropriate, the court might not have found for one party or the other.  Money spent on an expert is rarely wasted money.

Labor Law § 241(6) (JAE)

The trial court’s grant of partial summary judgment on plaintiff's Labor Law § 241(6) claim, predicated on Industrial Code § 23.1-15, was reversed in light of the First Department’s determination that issues of fact existed as to whether plaintiff’s comparative negligence constituted a valid defense to this claim.  Although plaintiff testified that a hard hat would not fit over his welding hood, the site safety manager testified to the contrary. The safety manager further testified that the use of fiber metal hard hats was mandatory, and that such hats were available on the site, raising an issue of fact.

Indemnity Issues in Labor Law (SEP)

            Notice in this case that the contractual indemnity claim brought by the Caithness defendants survived, except insofar as the anti-subrogation rule applied.  What this means, in common in English, is that the Caithness defendants qualify as additional insureds under the Commercial General Liability policy issued to FMP.  Under the anti-subrogation law, a party cannot sue its own insured in order to shift the exposure of the exact risk that it underwrote.  Here, because FMP’s carrier assumed the risk of exposure of losses to Caithness, it could not sue FMP.

            However, as soon as the limits of coverage provided by the FMP policy are exhausted, the Caithness defendants are free to pursue indemnity claims against FMP.  On that front, because there are issues of fact related to FMP’s potential negligence, the Court declined to issue a dispositive ruling on the Caithness defendants’ entitlement to contractual indemnity for any such exposure in excess of the FMP CGL policy. 

            Notice, too, that the Court explicitly says that the negligence of the injured party (here, Mr. Mercado) is imputed to his employer, FMP. 

 

 

 

Coates v Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Sts.
March 27, 2013
Appellate Division, Second Department

            Plaintiff, an employee of the general contractor hired by defendant to renovate a church building and parking lot, was sent to the work site to inspect a newly constructed retaining wall. Plaintiff was specifically assigned to check whether the capstones topping the wall were properly secured in place.  Plaintiff checked the portion of the retaining wall that he was able to reach from the ground, finding several loose capstones.  Plaintiff testified, however, that there were portions of the wall that he was unable to reach from the ground.  Plaintiff further testified that, in the absence of any safety devices enabling him to reach the higher portions of the wall, he scaled the wall to check the rest of the capstones.  In the course of doing so, plaintiff predictably lost his footing and fell to the sidewalk below.

            At the close of all the evidence, plaintiff moved for judgment as a matter of law and the trial court reserved decision on the motion.  After the jury returned a verdict in favor of defendant, the Supreme Court granted that branch of plaintiff’s motion pursuant to CPLR § 4401 for judgment as a matter of law on the issue of liability.

Labor Law § 240(1) (DRA)

            The Second Department held that it’s decision and order in a prior appeal determining that questions of fact existed precluding summary judgment in plaintiff’s favor “did not decide that there necessarily would be established an issue of fact at the trial which would have to be determined by a jury.”  Accordingly, this Court’s decision did not preclude plaintiff from seeking judgment as a matter of law upon the close of evidence at trial and did not require the automatic denial of such a motion.

            To succeed on a motion pursuant to CPLR § 4401, a party has the burden of showing that there is no rational process by which the jury could find in favor of the opposing party and against him or her.  The Second Department held that the Supreme Court properly concluded, based on the evidence adduced at trial, that plaintiff was entitled to judgment as matter of law on the issue of liability because here, no rational jury could have found that, in the conceded absence of any safety devices, plaintiff could have performed the task assigned to him without scaling the wall. 

            Both the undisputed testimony of plaintiff and his expert demonstrated that plaintiff would have reasonably been able to perform his task by lying on a grassy area located on the same level as the highest portion of the retaining wall, reaching through a fence, and, with his arm fully extended, lifting a 40-60 pound stone to determine whether it was secured in place.  The evidence also established that plaintiff would not have performed his job adequately if he had only checked a portion of the capstones on the wall.  Further, “where, as here, a violation of Labor Law § 240(1) is a proximate cause of an accident, plaintiff’s conduct, of necessity, cannot be deemed the sole proximate cause.”

PRACTICE POINT:  Once again, the lack of an expert doomed the defense.  It is often a good idea to have an expert opinion to support your motion or to oppose plaintiff’s motion, particularly since Labor Law § 240(1) cases are often decided on summary judgment motions.  Remember, if you did not have an expert opinion for the trial level motion, the record on appeal is not going to contain any subsequent opinion and the Appellate Court will be making a decision without that bit of evidence.  We have seen several cases over the years where having an expert affidavit could have changed the outcome.  The most common example is, as in this case, the appropriateness of the safety device provided or available.

 

Dos Santos v Consolidated Edison of N.Y., Inc.
March 28, 2013
Appellate Division, First Department

            Plaintiff laborer was injured when he fell into a stream manhole that was part of defendant’s stream distribution system in lower Manhattan.  Plaintiff was employed by nonparty Felix Associates LLC (Felix) when the accident occurred.  Around the time of the accident, NYC was beset by a nor’easter that threatened the metro area with heavy rain, strong wind gusts and high tides.  Due the severe storm, defendant engaged Felix to supplement its effort in responding to vapor conditions and pumping water out of flooded manholes.

            On the day of the accident, plaintiff and a coworker were dispatched to respond to heavy vapor conditions at Broad Street.  A gust of wind caused plaintiff to stumble and fall into the manhole which his coworker had uncovered.  Plaintiff landed in a pool of boiling water that reached his chest.  The boiling water was caused by torrential rain that flooded the manhole and contacted the steam main.  In an accident investigation report, defendant acknowledged that “severe weather conditions lead to a loss of hazard protection around the exposed manhole.”  Defendant’s general manager for Steam Operations testified that such hazard protection would have consisted of a railing.  In granting defendant’s motion and denying plaintiff’s cross-motion, the Supreme Court found plaintiff’s work to be routine maintenance involving a common problem.

Labor Law § 240(1) (DRA)

            Labor Law § 240(1) affords protection to workers engaged in “the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.”  Whether a particular activity constitutes a “repair” or routine maintenance must be decided on a case-by-case basis, depending on the context of the work.  A factor to be taken into consideration is whether the work in question was occasioned by an isolated event rather than a recurring condition.

            The First Department discussed Davidson v Ambrozewicz (12 AD3d 902 [3d Dept. 2004]), where that Court held work performed by the employee of an extermination contractor constituted a repair because a bat infestation he was engaged to remedy constituted “an isolated event” (Id. at 903).  In this case, the First Department held the record demonstrates that the work performed by plaintiff at the time of his injury was far from routine.  The accident report describes the condition plaintiff was required to address as follows:

“… [T]he Steam main was flooded from water infiltration due to extreme heavy rainfall.  The location is equipped with a pumping station located directly west of this manhole, on the sidewalk.  At the time of the incident the pump was inoperable due to an obstructed discharge pipe and electrical issues … The inoperability of this pump is not considered a direct cause of the flooding condition.  If the pump was operating, the rate of water entering the manhole would have exceeded the capacity of the pump.  Once the vapor condition was detected …, the Felix crew was dispatched to pump out the manhole.”

Accordingly, the First Department held that plaintiff was engaged in a repair contemplated by the statue insofar as he was called upon to address a flooding condition that exceeded the capacity of the pumping station.

The First Department further held that the Supreme Court correctly determined that the manhole meets the definition of a “structure” as that term is used in the statute.  A “structure” is “a production or piece of work artificially built up or composed of parts joined together in some definite manner.”  Additionally, it is undisputed that plaintiff and his coworker had to expose the manhole to pump out the subterranean water.  Therefore, the Supreme Court correctly held that plaintiff’s injury resulted from an elevation-related hazard that § 240(1) is intended to obviate.

PRACTICE POINT:  Another case pitting the forces of repair against the forces of maintenance.  Recall that repair is § 240(1) and maintenance is not.  Remember also that if it is a § 241(6) case, it must be construction, demolition or excavation work.  Normal wear and tear and routine replacement equal maintenance.  Good practice is checking records whenever possible to establish a pattern of replacement which may denote maintenance. 

 

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

            Regulation § 23–1.20 prescribing safety standards for chutes, was held applicable where worker removing debris from bottom of old elevator shaft being used as chute injured by piece of wood that fell from higher floor in Parrales v Wonder Works Construction Corp, supra.  The definition of “chute” contemplated by regulation is in the nature of conduit used to remove materials and debris from elevated levels of structure down to truck, and was held inapplicable to planks wedged against truck for purpose of unloading pipe from truck (Curley v Gateway Communications Inc., 250 AD2d 888, 672 NYS2d 523 [3d Dept. 1998]).    

             Regulation § 23-1.21 was held inapplicable where worker fell from “ladder pick” that functioned as “sidewalk go[ing] from ladder to ladder” (Evans v Syracuse Model Neighborhood Corp., 53 AD3d 1135, 862 NYS2d 425 [4th Dept. 2008]); inapplicable where accident did not involve use of ladder (Maldonado v Townsend Ave. Enterprises, 294 AD2d 207, 741 NYS2d 696 [1st Dept. 2002]); inapplicable to accident in which elevator repairman fell from fixed staircase to elevator machine room (Norton v Park Plaza Owners Corp, 263 AD2d 531, 649 NYS2d 411 [2d Dept. 1999]).

Regulation § 231.21(a) was held a general safety standard and not a specific standard of conduct and thus, is insufficient to sustain a § 241(6) cause of action (Kin v State, 101 AD3d 1606, 956 NYS2d 731 [4th Dept. 2012]); held a general safety standard as applied to stepladders and not a specific standard of conduct (Schroeder v Kalenak Painting & Paperhanging, Inc, 800 NYS2d 256 [Monroe County 2005]).  Regulation § 23-1.21(a) held inapplicable where the ladder involved was a folding, six-foot long one (Hajderli v Wiljohn 59 LLC, 901 NYS2d 899 [Bronx County 2009]).  Regulation § 23-1.21(a) requiring all metal and fiberglass ladders that are ten feet or longer be approved before use, held not proximate cause of accident which resulted from either plaintiff’s loss of footing on ladder of the ladder’s “kick[ing] out” (Arigo v Spencer, 39 AD3d 1143, 834 NYS2d 805 [4th Dept. 2007]).

Regulation § 23-1.21(b)(1) requiring ladders be capable of sustaining without breakage, dislodgment or loosening of component parts at least four times the maximum load to be placed thereon, was held sufficiently specific to support a § 241(6) cause of action (Riccio v NHT Owners, LLC, 51 AD3d 897, 858 NYS2d 363 [2d Dept. 2008]).  Regulation § 23-1.21(b)(1) provided a basis for liability where ladder did not comply with minimum strength standard specified in regulation (Santamaria v 1125 Park Ave. Corp., 249 AD2d 16, 670 NYS2d 844 [1st Dept. 1998]).  Fact that worker's employer had been hired to cure fire code violations by repairing top of water tank on roof of building, and securing ladder attached to water tank from which he fell, and that worker fell from ladder he was repairing did not bar him from recovering under regulation § 23-1.21(b)(1) where, at time of accident, he was not repairing ladder, but was using it as his sole means of accessing roof of water tank owner had also engaged his employer to repair (Smith v Cari, LLC, 50 AD3d 879, 855 NYS2d 245 [2d Dept. 2008]).

Evidence that the ladder collapsed or malfunctioned for no apparent reason raises the presumption that the ladder “was not good enough to afford proper protection” and establishes noncompliance with § 231.21(b)(1) (Soodin v Fragakis, 91 AD3d 535, 937 NYS2d 187 [1st Dept. 2012]; applicable where plaintiff went down about two or three steps, heard a snapping sound, then one of the wood prongs broke, and he fell down the A-frame ladder as it was not capable of sustaining without breakage (Murphy v Tahoe Development Corp., 957 NYS2d 265 [Queens County 2012]); regulation held applicable where plaintiffs presented evidence that the accident was the result of a ladder breaking and collapsing (Beckford v 40th Street Associates, 287 AD2d 586, 731 NYS2d 755 [2d Dept. 2001]).  Regulation § 23-1.21(b)(1) was held inapplicable where worker used form for pouring concrete to assist him to climb down from truck’s cargo floor; form not a “ladder” within meaning of rule and, in any event, there was no evidence that accident related to form’s strength (Amantia v Barden & Robeson Corp, supra).

Regulation § 23-1.21(b)(3) providing that ladders must maintained in good condition and cannot be used if they have broken members or parts, insecure joints between members or parts, wooden rungs or steps worn down to less than ¾ of their original thickness or any other flaw or material defect that can cause failure, held inapplicable where plaintiff testified he lost his balance because of steel object that interfered with his grasping rung (Juchniewicz v Merex Food Corp., 46 AD3d 623, 848 NYS2d 255 [2d Dept. 2007]).

Regulation § 23-1.21(b)(3)(iv) forbidding use of a ladder having any flaw or defect in material that could cause the ladder to fail, held sufficiently specific to support a § 241(6) cause of action (Riccio v NHT Owners, LLC, supra).  Regulation § 23-1.21(b)(3)(iv) held applicable where plaintiff was standing on an extension ladder that had old and worn feet and at the time of his fall, the bottom of the ladder slid back, away from the house, and the top of the ladder slid down the side of the house (Melchor v Singh, 90 AD3d 866, 935 NYS2d 106 [2d Dept. 2011]).  Regulation § 23-1.21(b)(3)(iv) held inapplicable where plaintiff testified he properly opened and set up eight- to nine-foot ladder, the aluminum side supports were in working order, and the ladder had four rubber footings because there is no evidence of a slippery floor or that the masonite, which covered the ceramic floor, was a foreign substance that caused a slippery footing (Croussett v Chen, 2013 WL 68879 [1st Dept. 2013]).

Plaintiff raised a question of fact under § 23-1.21(b)(3)(iv) even though he did not know what cause the ladder to slip while scraping building lobby to prepare it for painting and he fell to the ground where he claimed that after he fell he noticed that the ladder did not have rubber feet (De Oliveira v Little John’s Moving, Inc., 289 AD2d 108, 734 NYS2d 165 [1st Dept. 2001]); plaintiff’s testimony describing the ladder raises an issue of fact as to whether it had broken, insecure, or worn down members or parts (Fernandes v Equitable Life Assurance Society of U.S., 4 AD3d 214, 774 NYS2d 4 [1st Dept. 2004]).

Regulation § 23-1.21(b)(4) held applicable where worker fell while climbing through second-story window to access exterior scaffolding that would enable him to descend to ground level (Sopha v Combustion Engineering, Inc., 261 AD2d 911, 690 NYS2d 813 [4th Dept. 1999]).  Defendant raised an issue of fact as to whether plaintiff used ladder as regular means of access to second-floor office when he fell off 15-foot A-frame ladder (Avendano v Sazerac, Inc., 248 AD2d 340, 669 NYS2d 620 [2d Dept. 1998]).

Regulation § 23-1.21(b)(4)(i) requiring portable ladders regularly used as access between floors or levels be nailed or otherwise securely fastened, held applicable where plaintiff injured when unsecured ladder slipped (Kinsler v Lu-Four Assocs., 215 AD2d 631, 628 NYS2d 303 [2d Dept. 1995]).  Regulation § 23-1.21(b)(4)(i) held inapplicable where worker used A-frame ladder as makeshift means of descending to basement (Egan v Monadnock Construction, Inc., 43 AD3d 692, 841 NYS2d 547 [1st Dept. 2009]); inapplicable where ladder not used as the regular means of access to overpass (Garzon v Metropolitan Transp. Authority, 881 NYS2d 363 [New York County 2009]; inapplicable where worker used ladder to gain access to roof to perform his work (Artoglou v Gene Scappy Realty Corp., 57 AD3d 460, 869 NYS2d 172 [2d Dept. 2008]); inapplicable where form worker used to assist him to climb down from truck’s cargo floor not used as regular means of access between floors or levels of a building (Amantia v Barden & Robeson Corp., supra); inapplicable to ladder that was leaning against crane at construction site at which injury occurred (Jamison v County of Onodaga, 17 AD3d 1142, 796 NYS2d 761 [4th Dept. 2005]).

Regulation § 23-1.21(b)(4)(ii) requiring all ladder footing be firm, held sufficiently specific to support a 241(6) cause of action (Sprague v Peckham Materials Corp., 240 AD2d 392, 658 NYS2d 97 [2d Dept. 1997]).  Regulation § 23-1.21(b)(4)(ii) held applicable where plaintiff fell because unsecured ladder slipped out from under him (Kwang Ho Kim v D & W Shin Realty Corp., supra); applicable where plaintiff fell after setting-up ladder on sub-basement floor with pieces of cement either on floor or in crevices and she shook/tried to move ladder to ensure it was firmly planted (Hernandez v 42/43 Realty LLC, 926 NYS2d 344 [Bronx County 2009]); inapplicable where record established ladder was not placed on slippery or unstable object (Arigo v Spencer, supra).

Regulation § 23-1.21(b)(4)(iii) requiring leaning ladders to be rigid enough to prevent excessive sag under expected maximum loading conditions, inapplicable where plaintiff fell because unsecured ladder slipped out from under him (Kwang Ho Kim v D & W Realty Corp., supra).

            Regulation § 23-1.21(b)(4)(iv) is sufficiently specific to support of § 241(6) cause of action (Montalvo v J Petrocelli Const., Inc., 8 AD3d 173, 780 NYS2d 558 [1st Dept. 2004]) and applicable where plaintiff injured when closed A-frame ladder leaning against spherical boiler collapsed as he attempted to climb it (Deshields v Carey, 69 AD3d 1191, 897 NYS2d 254 [3d Dept. 2010]); applicable where at the time of his fall, plaintiff was working on or about sixth rung of ladder which not secured from top (Hunter v R.J.L. Development, LLC, 44 AD3d 822, 845 NYS2d 352 [2d Dept. 2007]).  Defendant raised factual issue whether any such violation of regulation was proximate cause of plaintiff's injury since there was evidence that plaintiff was comparatively negligent in misusing “leaning” ladder (Portillo v Mark, 37 Misc.3d 135(A) [1st Dept. 2012]); plaintiff raised factual issues with respect to proximate causation where decedent worker fell to his death while cutting a tree with chainsaw from about 10-20 feet above ground on ladder which he brought to site (Ferrero v Best Modular Homes, Inc., 33 AD3d 847, 823 NYS2d 477 [2d Dept. 2006]).

            Regulation § 23-1.21(b)(4)(iv), which applies only when work is performed from ladder, held inapplicable where ladder used as means of access to building’s roof and not as platform for work (Arigo v Spencer, supra); inapplicable where there was no claim that upper end of ladder slipped (Kwang Ho Kim v D & W Realty Corp., supra); inapplicable where plaintiff fell from four-foot A-frame ladder, as opposed to “leaning ladder” and/or because provision contemplates heights between six to ten feet above ladder footing (Lee v Cosmas, 946 NYS2d 67 [Richmond County 2011]); inapplicable where plaintiff testified he was in process of stepping from ladder to roof when ladder kicked out and fell (Agelou v Direct TV Group, Inc., 910 NYS2d 403 [Broome County 2010]). 

Regulation § 23-1.21(b)(4)(v) requiring the upper end of any ladder leaning against slippery surface be mechanically secured against side slip while work being performed from ladder, only applies when work is performed from ladder and held inapplicable where ladder used as means of access to building’s roof and not as platform for work (Arigo v Spencer, supra);  inapplicable where plaintiff fell because unsecured ladder slipped out from under him and there was no claim that upper end of ladder slipped (Kwang Ho Kim v D & W Shin Realty Corp., supra); inapplicable where worker used form for pouring concrete to assist him to climb down from truck’s cargo floor because form not a “ladder” within meaning of rule and, in any event, there was no evidence that form was leaned against slippery surface (Amantia v Barden & Robeson Corp., supra).

             Regulation § 23-1.21(b)(9) provides that ladders shall not be placed in door openings unless the doors are securely fastened open, closed and locked or otherwise effectively guarded against swinging, held applicable where worker fell from extension ladder leaning against or just above newly-installed garage door when garage door unexpectedly started to lift open (Riffo-Velozo v Scarsdale, 68 AD3d 839, 891 NYS2d 418 [2d Dept. 2009]). 

            Regulation § 23–1.21(c)(2)(ii)(a) requiring the rungs on a ladder be between 12 to 14 inches apart, held applicable where plaintiff injured after his left foot slipped on a wet rung of the ladder and he fell 10 to 12 feet to the floor (Potter v NYC Partnership Housing Development Fund Co., Inc., 13 AD3d 83, 786 NYS2d 438 [1st Dept. 2004]). 

 

 

 

 

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Labor Law Pointers
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V. Christopher Potenza

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Steven E. Peiper

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Jennifer A. Ehman

Associate Editor
Marc A. Schulz

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