Labor Law Pointers - Volume II, No. 6

From the Editor:

Another month has come and gone, and spring is a step closer.  Those of us who both ski and sail look upon this time of year which mixed emotions.  Rocks visible on the slopes lead to boats in the water, but we still want another weekend of skiing before we have to tackle that painful task of cleaning a winter’s worth of dead spiders out of the boat. 

I have done three training sessions on labor law this month via webinar and it seems that we have most of the bugs worked out.  While I find it much more rewarding to be in the same room as the people I am speaking to, with the way we are all spread out across the state and county these days webinars are here to stay.  I am always willing, no, make that anxious, to visit with and provide in person training to anyone who is interested, but the webinar is a great solution if your group is spread out across a large area.  Anyone interested in either in person or webinar training, please give me a shout.  As always please feel free to forward this newsletter to anyone you think would be interested and if this was sent to you, send me an email and I will add you to the distribution list.

The courts have been active and we have a dozen §240(1) cases alone for you this month.  While there are no Court of Appeals cases in the labor law realm Steve does report on the Auqui decision from the court.  It allows, in a specific instance, for a Workers Compensation decision to have collateral estoppel effect in a personal injury law suit.  There are no cases this month that change the status quo, to the extent it exists in labor law, but there are some interesting factual issues.  Let’s start with the plaintiff working 18 feet in the air with a 30 foot safety line on, in fact a 30 foot safety line tied to him by his boss.  Then there is the plaintiff who claims a labor law violation when he has a heart attack while climbing stairs.  You can’t make this stuff up.

While my comments have always in the past related to current labor law cases there was a case which came out this month which is important to all of us who are trying cases in this state.  Steve Peiper reported on the Caldwell case in our sister publication, Coverage Pointers, and I have added that analysis here for those of you who do not receive Coverage Pointers.  By the way I strongly encourage everyone to subscribe to coverage pointers.  Labor Law and Coverage cases have a very close association.  It is a very rare labor law case without a coverage question that needs to be answered.  I am blessed to have Dan, Steve and Jennifer right down the hall to discuss all aspects of the case with.  Faithful readers of Coverage Pointers will recall that Dan just last week mentioned the discussions around the office, picking each other’s brains to make sure no stone is left unturned.  Steve’s comments on Caldwell are below.

In Caldwell, defense counsel paid $10,000 to a physician to appear for trial testimony. While five figure payouts for expert medical testimony is sadly no longer surprising in personal injury cases, here the good doctor was called as a fact witness. Indeed, rather than opining on injuries, causation and the like, the witness merely confirmed that a note in the emergency room records was accurate. The Court acknowledged in the opinion that it was “troubled” by the excessive payment extended to the witness. To address the issue, the Court has now empowered trial judges to make a determination as to whether a witness payment was disproportionate. If so, trial judges are advised to instruct the jury to consider whether the fee is disproportionate. If they likewise find it problematic, the jury is then requested to make a determination as to whether the payment had an impact on the witness’ testimony.
I have always felt that juries were not impacted by the disclosure that Doctor “X” received $15,000 to provide testimony. Frankly, depending on the witness, it either served as an affirmation of his or her credentials ---or---cut against their credibility. It did not, however, occur to me that the jury needed the judge to tell them what they already knew. By referencing the compensation, the Court (one may argue) has already acknowledged that the witness fee is/was questionable. The prejudice, by way of the instruction, is/will be unmistakably highlighted.
And maybe….just maybe…that’s the point!
Our court system is the protector of the time honored jury trial. We can all agree that payment of $10,000 to lay witnesses sets a dangerous precedent. If $10,000 is the going rate to read a note, how much is fair for a witness of a car accident, or a slippery condition on a supermarket floor? What if the witness was an investment banker? What if he or she was a tax accountant and the trial was in April. What if they were a coverage lawyer --- what payment wouldn’t be disproportionate?
As you know, we have a system to compel witnesses to testify. A subpoena fee, and mileage, will work just fine. If you want to provide more, that’s fine, but keep it reasonable, and maybe, upon further consideration, that is the right answer.
I hope you all enjoy the approaching spring and our latest offering.  As always please feel free to contact me at any time with any questions or comments you may have.  I enjoy discussing the law and the stranger and more convoluted the fact pattern the more we like it.  
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]

02/1/13                        Miles v Great Lakes Cheese of N.Y., Inc.
Appellate Division, Fourth Department
http://www.nycourts.gov/reporter/3dseries/2013/2013_00633.htm

Plaintiff 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 ½ feet above the ground, to a higher level approximately 20 inches above the lowest level.  The coworker balanced himself between the scaffold frame and one of the outriggers, then lifted the end of the planks while plaintiff knelt on the ground and attempted to move another outrigger.  The coworker subsequently lost his balance, let go of the planks and dropped them onto plaintiff’s head.

Plaintiff moved for partial summary judgment on liability with respect to his §240(1) cause of action and defendants cross-moved to dismiss.  The Fourth Department held plaintiff established as a matter of law that he was exposed to “hazards related to the effects of gravity where protective devices are called for … because of … a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured.”  Plaintiff further established that he was exposed to “a risk arising from a physically significant elevation differential, and that his task “necessarily placed [him] in a position where he was at risk of being struck by … falling [planks].”  Specifically, § 240(1) was violated because the safety device at issue, here the scaffold frame, was not “so construed, placed and operated as to give proper protection” to plaintiff, inasmuch as it was inadequate to protect him from the foreseeable risk that his coworker might drop the planks onto him. 

As a result, the Fourth Department modified the lower court’s decision denying plaintiff’s motion because defendants failed to raise a triable issue of fact either with respect to whether plaintiff’s alleged misuse of the scaffold was the sole proximate cause of his injuries or with respect to whether plaintiff was a recalcitrant worker.  The Fourth Department noted that because plaintiff established that defendants violated § 240(1) necessarily precludes a finding that plaintiff’s conduct was the sole proximate cause of his injuries.  Further, although plaintiff was instructed to stay under the scaffold frame during the process of raising the planks to a higher level, he cannot be deemed to be a recalcitrant worker by virtue of his alleged failure to abide by that instruction.  Lastly, the Fourth Department found nothing in the record to suggest that plaintiff refused to use an available and adequate safety device and “an instruction by an employer or owner to avoid unsafe practices is not a safety device” in the sense that plaintiff’s failure to comply with the instruction is equivalent to refusing to use available, safe and appropriate equipment.

PRACTICE POINT:  In a falling object case such as this to obtain a defense ruling it is not enough to simply tell the plaintiff to avoid unsafe practices.  A warning to avoid an unsafe practice does not have the same effect as providing an appropriate safety device.  It is necessary for the plaintiff to have been provided with an appropriate safety device and to have told him to use it.  We have outlined this distinction previously but bears repeating, telling the plaintiff not to do something is simply insufficient as a matter of law, the appropriate safety device must be available and the plaintiff must have been instructed to use it.  Additionally in this case the common point is again made that if the statute is violated, then nothing the plaintiff does can be the “sole” proximate cause of the accident.

02/7/13                        Susko v 337 Greenwich, LLC
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2013/2013_00793.htm

Plaintiff made a prima facie showing that defendant Greenwich failed to provide the injured plaintiff with an adequate scaffold, which is a safety device under Labor Law § 240(1) and that as a consequence, he fell and injured himself.  It was undisputed that during an ongoing construction project, plywood sheeting was placed over the planks on the scaffold and in one area there were two missing beneath the plywood.  The Fist Department noted that Greenwich had a non-delegable, statutory duty to ensure that the scaffold in use by plaintiff during the work at the construction project was an effective and stable safety device.  Further, since preventing a worker from falling is a core objective of the statute, plaintiff established a violation of § 240(1) as a matter of law.

Greenwich argued the planks were improperly removed, or possibly even stolen, by the employees of another contractor.  However, no facts were presented to the court to conclude this was an extraordinary and/or unanticipated intervening act that constituted a superceding cause for plaintiff’s injuries.  Greenwich’s principal testified he was aware that other subcontractors on the site were moving construction tools and materials.  The Fist Department determined that Greenwich’s characterization of the removal of the planks as a “theft” is entirely speculative and, even if true, does not convert this foreseeable event into a superseding intervening cause.  

PRACTICE POINT:  This case emphasizes the point that speculation as to the reason for the disappearance of the adequate safety device does not create a question of fact.  This is not, of course, unique to a labor law case.  Speculation as to the cause of any accident will not sway the court into finding for the defense, or even creating a question of fact.  This case is also addressed by Chris Potenza and Steve Peiper in their columns regarding the interrelationship between the §200 cause of action and the common law and contractual claims and is a great example of those issues.

 

02/14/13          Imbriale v Richter & Ratner Contracting Corp.
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2013/2013_01002.htm

The alleged new facts offered by defendants in support of renewal of plaintiff’s motion for summary judgment as to liability under § 240(1) do not change the prior determination.  Defendants argued that decedent’s tool bag, which until recently had been in the decedent’s wife’s possession, contained suction cups that could have anchored the top of decedent’s ladder to the glass wall against which the otherwise unsecured ladder had been leaning before it slip and collapsed. 

However, the First Department held defendants failed to adduce any evidence the decedent knew the suction cups could be used to anchor the top of the ladder to the glass or that he had been directed or knew he was expected to use the suction cups for that purpose. 

PRACTICE POINT:  Recall that there are three necessary elements to the sole proximate cause defense.  First there needs to be an adequate or appropriate safety device second, the adequate safety device must be available to the plaintiff and third the plaintiff must have been informed or know that the use of that safety device was expected and necessary.  Absent any of these elements the sole proximate cause defense will fail.   

 

02/19/13          Mouta v Essex Martket Development, LLC
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2013/2013_01032.htm

Plaintiff was injured when he stepped on a section of plywood platform that, unbeknownst to him, was being dismantled and he fell from the fourth floor to the second.  The First Department held there is “no question            that plaintiff’s [injury] was a ‘gravity related … fall from a height,’ and that plaintiff was provided no safety devices, such as a harness, to prevent the fall.”   The First Department further held third-party defendant Marangos Construction Corp.’s conclusory claims that safety devices were available insufficient to raise an issue of fact.

PRACTICE POINT:  Conclusory claim of availability, like the speculation in the Susko case above will not carry the day.  To prevail on this motion, or to at least establish a question of fact, some testimony from a person with knowledge that the safety harnesses were available must be offered.

 

02/20/13          Corchado v 5030 Broadway Props., LLC
Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2013/2013_01058.htm

Plaintiff allegedly sustained injuries when he fell from an A-frame ladder while working on the installation of a sprinkler system during the renovation of a building.  The Second Department restated that “Labor Law § 240(1) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites.”  Liability arises only when there is a violation of the statute and “that violation must be a proximate cause of the plaintiff’s injuries.”  However, “where there a plaintiff’s own actions are the sole proximate cause of the accident, there can be no liability.”

The Second Department held plaintiff established prima facie entitlement to judgment on the issue of liability on the cause of action alleging a violation of § 240(1) by submitting evidence which demonstrated that he fell from the ladder when it “kicked out” from underneath him and that the failure to provide him with an adequate safety device proximately caused his injuries. 

However, the Second Department also held that defendants raised a triable issue of fact as to the manner in which the accident occurred and whether plaintiff’s own actions were the sole proximate cause of the accident.  Thus, plaintiff’s summary judgment motion on liability was properly denied. 

PRACTICE POINT:  While this case is short on facts and does not identify what evidence was presented establishing an alternate manner in which the accident occurred, it is illustrative of the necessity for a thorough investigation of the accident at the first opportunity.  In some cases early investigation will yield a witness to the occurrence with a different version of the accident, occasionally a version which does not have the plaintiff falling from a ladder at all.

 

02/20/13          Wicks v Leemilt’s Petroleum, Inc.
Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2013/2013_01079.htm

Plaintiff was allegedly injured as a result of his fall from an extension ladder while he was performing work on an elevated fire extinguishing system at a gasoline station.  Plaintiff’s employer provided him with a van equipped with an extension ladder and an A-frame ladder.  Plaintiff stated a scissors lift could have been attached to the van but he did not bring it to the work site because he had received no training in its operation.  Plaintiff was unable to position the A-frame ladder close enough to the fire extinguishing system.  Plaintiff leaned the extension ladder against the pole and secured the ladder with two clips.  As he climbed the ladder, the pole collapsed and plaintiff fell to the ground.  Various defendants allegedly possessed ownership or leasehold interests in the subject premises. 

“To recover on a cause of action based on a violation of Labor Law § 240(1), a plaintiff must demonstrate that his or her injuries were ‘the direction consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.’”  The Second Department determined that plaintiff established prima facie entitlement to judgment as a matter of law on liability of his § 240(1) claim by submitting evidence that defendants failed to ensure the proper placement of the extension ladder and that such failure was a proximate cause of his injuries. 

Even though defendants Getty Petroleum and 111 Montauk Highway argued they are not “owners” within the meaning of Labor Law § 240(1), the Second Department held their evidence in support of that position failed to demonstrated that they did not either “fulfill the role of owner by contracting to have the work performed”, have the right to control the work being done, or have a sufficient “nexus” to the work performed, “whether by a lease agreement or grant of an easement, or other property interest,” to support the imposition of liability on them.  Accordingly, since defendants failed to make a prima facie showing, the Second Department held their motion to dismiss plaintiff’s complaint should have been denied, regardless of the sufficiency of plaintiff’s papers in opposition.

PRACTICE POINT:  The criteria to be deemed an “owner” as contemplated by the statute is reiterated here.  To be considered an “owner” the defendant can have 1) contracted to have the work performed, 2) have the right to control the work, 3) have a sufficient nexus to the work by lease agreement, easement or property interest.  This confirms our advice that all contracts (including leases) be carefully reviewed as early in the case as possible.

 

02/20/13          Santos v ACA Waste Servs., Inc.
Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2013/2013_01074.htm

Plaintiff’s was allegedly injured at a construction site when he slipped and fell from the top of an improperly placed and secured dumpster.  Subcontractor, defendant ACA Waste Services (ACA) allegedly had been hired to supply and place the dumpster.  ACA moved for summary judgment and submitted the affidavit of its President, who affirmed that his employees had been instructed by employees of another subcontractor as to where to place the dumpsters.

The President further affirmed that said contractor “told me the accident happened when one of his employees climbed up onto the dumpster to pull out material that did not belong in that particular dumpster [and] his employee … fell backwards out of the dumpster … [He also] told me there was nothing wrong with the dumpster at the time of this accident.” 

According to the Second Department, the President’s affidavit regarding the placement and condition of the dumpster and the surrounding circumstances “did not reveal that he had personal knowledge of the facts of the accident and merely recounted what another person had told.  Those statements constituted inadmissible hearsay.”  The Second Department held that ACA failed to make a prima facie showing of entitlement to judgment as a matter of law and thus, did not address the sufficiency of plaintiff’s opposition papers.  Further, the Second Department, citing Ortiz, declined plaintiff’s request to search the record and award them summary judgment on his § 240(1) cause of action.

PRACTICE POINT:  Having admissible and appropriate support for your argument is always a critical element to any motion.  Here the affidavit of the President of the company was not made with personal knowledge and thus was not considered by the court.  Sometimes a person with personal knowledge is not available to obtain an affidavit from but the result is likely the same as here, that the affidavit will not be considered.   The court’s reference to Ortiz is right on point.  The Court of Appeals decision in Ortiz was reported on last year in our January 4, 2012 issue.  Basically it held that a question of fact existed as to whether the task, the plaintiff was standing on the top edge of a dumpster loading the dumpster, was the type of risk for which the law was established to protect the plaintiff from.  They stated that “the practical differences between the usual and ordinary dangers of a construction site, and ...the extraordinary elevation risks envisioned by Labor Law Section 240(1)” must be taken into account.”

 

02/21/13          Klewinowski v City of New York et al.
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2013/2013_01180.htm

Plaintiff allegedly sustained personal injuries when an excavating machine knocked into electrical cables and pulled down a light pole which fell on top of him.  Although plaintiff submitted evidence that the electrical cables were lower than the required 18 feet on the day of the accident, no evidence was adduced that the cables were improperly installed by defendant Welsbach Electric.

The First Department affirmed the motion court’s dismissal of plaintiff’s § 240(1) claim as Welsbach was not an owner under the Labor Law because they were responsible for installation of the pole and electrical cable but did not remain on site after its installation and had no continuing duty to maintain it. 

PRACTICE POINT:  Timing, as they say, is everything.  In this case the defendant had completed their task and their responsibilities on the job site were done.  This once again reminds us that it is critical to examine all possible documents, including sign in sheets and contracts.  In a case if this type the contracts would establish the scope of the defendants responsibilities and the sign in sheets, if they exist, would establish when the defendant was last on the job site.

02/26/13          Fernandez v BBD Developers, LLC
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2013/2013_01189.htm

Plaintiff was performing demolition work on the top floor of a construction site in Manhattan.  The roof of the building was already off and plaintiff was directed by his supervisor to remove 500 pound steel beams, approximately 10 feet long, by cutting them with a torch and letting them drop down to the floor level below.  Plaintiff, who had to stand on a narrow exterior wall to perform work, was given a safety belt and rope.  His supervisor helped him fasten the rope to the safety belt, and directed him to tie it to one of the beams not being removed.  No one measured the rope to ensure it was shorter than the distance to the ground.  When plaintiff and a coworker pushed down a beam being cut, it somehow hit the security rope and plaintiff was pulled backwards off the exterior wall onto the concrete floor approximately 14 feet below. 

To establish a § 240(1) claim, a plaintiff must “show that the statute was violated and that the violation proximately caused the injury.”  Liability is contingent upon the existence of a hazard contemplated in § 240(1) and a failure to provide, or the inadequacy of, a safety device of the kind enumerated in the statute.  However, if adequate safety devices are provided and the worker either choose for no good reason not to use them, or misuses, them, the plaintiff will be deemed the sole proximate cause of his injuries, and liability will not attached § 240(1).

The First Department held plaintiff met his initial burden on the motion with evidence that he fell through the open roof while in the course of demolishing the building and that the safety device he was given – a safety belt with a rope which may have been as long as 30 feet – failed to prevent his fall.  Defendants unsuccessfully argued the safety belt and rope were not defective and provided adequate protection, and that plaintiff’s failure to tie the rope to a length that would have prevented him from hitting the floor below was the sole proximate cause of his injuries. 

PRACTICE POINT:  I assume it comes as a surprise to no one that giving a plaintiff a 30’ tether when he is working only 18’ off the ground is not providing the plaintiff with an adequate and appropriate safety device, especially where, as here, the plaintiff supervisor helped him tie it on at that length.

 

02/27/13          Banscher v Actus Lend Lease, LLC
Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2013/2013_01222.htm

Plaintiff was allegedly injured while he was installing shingles on a pitched roof when a water jug belonging to another worker rolled down the roof and hit plaintiff, causing him to fall onto the surface of the roof.  The Second Department reiterated that Labor Law § 240(1) is designed to prevent those types of accidents in which a safety device of the type identified in the statute is inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person.  “However, not every object that falls on a worker gives rise to the extraordinary protections of Labor Law § 240(1); a plaintiff must show that, at the time the object fell, it was being hoisted or secured, or that the falling object required securing for the purpose of the undertaking.

Here, the Second Department held defendants established prima facie that the water jug “was not a material being hoisted or a load that required securing for the purposes of the undertaking at the time it fell.”  In opposition, plaintiffs failed to raise a triable issue of fact and thus, failed to make a prima facie showing in support of their motion for summary judgment on the issue of liability.   

PRACTICE POINT:  This case holds that in this falling object case that the object must be the “material being hoisted or a load that required securing for the purpose of the undertaking at the time it fell.”  Do not be mislead by this language, the Court of Appeals has held that “falling object” liability under Labor Law § 240(1) is not limited to *759 cases in which the falling object is in the process of being hoisted or secured (Quattrocchi v. F.J. Sciame Const. Corp., 11 N.Y.3d 757, 758-59, 896 N.E.2d 75, 76 (2008)).  Here it appears to me that a water jug sliding down a roof is simply not the type of hazard the statue was designed to protect workers from.

 

02/28/13          Piazza v CRP/RAR III Parcel J, LP et al.
Appellate Division, First Department         
http://www.nycourts.gov/reporter/3dseries/2013/2013_01319.htm

Plaintiff was working as a carpenter for non-party Pinnacle Industries at a construction site.  Defendant CRP owned the site and Bovis Lend Lease operated it as construction manager for the project.  Plaintiff was allegedly walking toward the central elevator shaft, the sole means for workers to access that various floors of the building that lacked stairs, when he tripped on excess material of a tarpaulin hanging to permit the drying of cement.  Plaintiff claims he fell partially into the elevator shaft, and fractured his kneecap as he successfully pulled himself back up to the floor.
           
The First Department determined that while plaintiff testified he tripped on a piece of excess tarpaulin and fell partially into the elevator shaft, this is contradicted by his supervisor, who testified that plaintiff told him he tripped and fell after he had stepped off a ladder and had ascended to the floor on which the tarp was located.  The supervisor also described a wooden guardrail on the sides of the ladders.  Based on this conflicting testimony, the First Department held there are questions of fact regarding whether the accident falls within the ambit of Labor Law § 240(1). 
PRACTICE POINT:  Here again through investigation elicited a contrary version of the accident which did not fall within the labor law thus creating a question of fact and precluding the court from granting either party Summary Judgment.

 

02/28/13          Sanchez v Marticorena
Appellate Division, Third Department
http://www.nycourts.gov/reporter/3dseries/2013/2013_01305.htm

                Plaintiff tragically fell to his death while working on a roof at defendants’ home.  Defendants moved for summary judgment dismissing the complaint claiming that the homeowner’s exemption found in Labor Law § 240(1) and § 241(6) applied.

                The homeowner’s exemption precludes liability against “owners of one and two-family dwellings who contract for but do not direct or control the work.”  Plaintiff does not dispute that defendants did not control the roof work, but claims the property was used by defendants as a purely commercial enterprise. 

                The Third Department noted that “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.”  The court held where “there are two dual uses of a home, the availability of the exemption depends upon the site and purpose of the work performed.”
               
                In support of defendants’ motion, they submitted evidence establishing that they purchased the home and have resided there since that time.  The property is zoned residential and is undeniably residential in nature as the first floor consists of a living room, kitchen, dining room and bathroom and the second floor has three bedrooms and another bedroom.  There is also a room in the attic that is used by one of the defendants as a bedroom, and defendants paid for the roof work after water leaked into the attic whether one defendant slept with their personal funds.  Accordingly, Third Department held defendants met their burden establishing the homeowner’s exemption applied and the burden shifted to Plaintiff to raise an issue of fact.
               
                Plaintiff argued the exemption is inapplicable because defendants derive a stipend from allowing individuals to reside in their home and the roof work benefitted a commercial enterprise.  The Third Department noted that 4 years after purchasing their home, defendants became certified to operate a family care home under a program with the Office for People with Developmental Disabilities, which provided a residence to four individuals with disabilities in a family setting and receive a monthly stipend for the services they provide to each of the residents.  Defendants have resided in the home since they purchased it, did not make any renovations to the residence for the purpose of becoming family care providers and do not operate as a corporation, partnership or LLC.  Lastly, the court stated “plaintiff has failed to present any facts which demonstrate that defendants’ receipt of these stipends transformed the residence into a purely commercial enterprise so as to render the homeowner’s exemption unavailable.” 

PRACTICE POINT:  Note the use by the court of the term “purely” to describe the standard for finding the residence to be commercial.

 

Labor Law Section 241(6)

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

02/07/13          Susko v. 337 Greenwich, LLC
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2013/2013_00793.htm

During an ongoing construction project, plywood sheeting was placed over the planks on a scaffold; however, in one area, two planks missing beneath the plywood.  Plaintiff presumably sustained injury when he fell from the scaffold in this area. 

In affirming the decision of the trial court, the First Department refused to dismiss the Labor Law § 241(6) claim.  It explained that defendant failed to establish that the scaffolding planks complied with Industrial Code (12 NYCRR) § 23–5.1(e), which is a proper predicate for a Labor Law § 241(6) claim.  This provision requires, among other things, that scaffolding planks be of a specified width (§ 23–5.1[e][5] ) and “laid tight” (§ 23–5.1[e][1]).

 

02/19/13          Mouta v. Essex Market Development LLC
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2013/2013_01032.htm

Plaintiff was injured when he stepped on a section of plywood platform that, unbeknownst to him, was being dismantled, and he fell from the fourth floor to the second.  The court held that to the extent the Labor Law § 241(6) claim was predicated on Industrial Code (12 NYCRR) § 23–1.5 (general responsibilities of employees), § 23–1.8 (personal protective equipment), § 23–1.11 (lumber and nail fastenings), § 23–1.15 (construction of safety railings), § 23–1.16 (safety belts, harnesses, tail lines and lifelines), § 23–1.17 (life nets), § 23–1.24 (work on roofs), and §§ 23–5.3, 5.4, 5.5, 5.6, and 5.7 (various types of scaffolds), it must be dismissed because these provisions either were too generic to support a § 241(6) claim or were simply inapplicable to the facts of this case.

 

02/21/13          Velasquez v. 795 Columbus LLC
Appellate Division, First Department
http://www.courts.state.ny.us/reporter/3dseries/2013/2013_01174.htm

Plaintiff allegedly slipped and fell on “mud, rocks and water” at a construction site that, at the time, consisted of an open excavation.  He claimed that a muddy condition had formed on the concrete floor at the bottom of the site due to water from rain and a nearby water main break that occurred a few days before the accident.

In the court’s opinion, although 12 NYCRR 23–1.7(e), which protects workers from tripping hazards, was inapplicable to the facts of this case, it found that 12 NYCRR 23–1.7(d), which protects workers against slipping hazards, was an applicable predicate for the Labor Law § 241(6) claim.  It explained that plaintiff was working on a “floor” within the meaning of 12 NYCRR 23–1.7(d); the floor became covered with mud and water due to a water main break and rain.  As the mud was not part of the floor and not an integral part of plaintiff's work, it constituted a “foreign substance” that caused slippery footing.

Take Away:  For you reference, 12 NYCRR 23–1.7(d) provides:

(d) Slipping hazards. Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition.  Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing.

 

02/27/13          Vega v. Renaissance 632 Broadway, LLC
Appellate Division, Second Department
http://www.courts.state.ny.us/reporter/3dseries/2013/2013_01261.htm

Plaintiff was on an unsecured ladder removing pipes from the ceiling of a building during demolition work.  The pipes were supported by brackets.  Plaintiff allegedly was cutting a bracket, when other brackets gave way, and a pipe fell and hit the ladder.  This allegedly caused the ladder to fall over and plaintiff fell to the floor.

In affirming the lower court decision, it was determined that 12 NYCRR 23–1.21(e)(3), did not apply.  This provision states that “[s]tanding stepladders shall be used only on firm, level footings.  When work is being performed from a step of a stepladder 10 feet or more above the footing, such stepladder shall be steadied by a person stationed at the foot of the stepladder or such stepladder shall be secured against sway by mechanical means.”  Here, the ladder at issue was either 6 or 8 feet in height.  Notably, there was conflicting testimony on this issue, but, in either case, the regulation was inapplicable as the step plaintiff was standing on was less than 10 feet above the footing.

Further, the provisions of 12 NYCRR 23–3.3(b)(3) and (c) also were inapplicable, as the hazard arose from plaintiff's actual performance of the demolition work itself, rather than from “structural instability caused by the progress of the demolition.”

 

02/28/13          Piazza v. CRP/RAR III Parcel
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2013/2013_01319.htm

Plaintiff was allegedly walking toward the central elevator shaft, the sole means for workers to access the various floors of the building that lacked stairs, when he tripped on excess material of a tarpaulin hanging to permit the drying of cement.  He alleged to have partially fallen into the elevator shaft, and fractured his kneecap as he successfully pulled himself back up to the floor.

To the contrary, his supervisor attested that plaintiff told him he tripped and fell after he had stepped off a ladder and had ascended to the floor on which the tarp was located.  The supervisor also described a wooden guardrail on the sides of the ladders.  Accordingly, based on this conflicting testimony, the court found questions of fact concerning whether Labor Law § 241(6) liability may be imposed for a violation of Industrial Code (12 NYCRR) § 23–1.7(b), concerning hazardous openings.

 

Labor Law Section 200 and Common Law Negligence

                                                                                    by:    V. Christopher Potenza
                                                                                             (716) 849-8933
                                                                                             [email protected]
There is quite a bevy of cases this month, including a trio from our very own Fourth Department.  Interesting reading this month as one creative plaintiff’s lawyer tried to make a Labor Law claim out of a heart attack, and another kept a 200 claim alive by citing to Mine Safety Regulations.  One creative defendant claimed those planks missing from the scaffold were stolen (guess how that one turned out…)  In the “oops” department, one plaintiff failed to check the title for a property to name the correct owner, while one defendant failed to raise supervision and control as a defense to a 200 claim.

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. 

 

02/01/2013      Ferguson v. Hanson Aggregates New York, Inc., 2013 N.Y. Slip Op. 00638
Appellate Division, Fourth Department
http://www.nycourts.gov/reporter/3dseries/2013/2013_00638.htm

Plaintiffs commenced Labor Law § 200 and common-law negligence action seeking damages for injuries sustained when he fell from the trailer of his truck at defendant's mine facility. At the time of his fall, plaintiff had just finished redistributing gravel in his trailer, which he had picked up from the mine facility. According to plaintiff, that redistribution was necessary to allow the load of gravel to be secured with a tarp as required under state law. Plaintiff alleged that the defendant mine owner was negligent in failing to provide a “tarping platform” or other type of fall protection so that he could have safely affixed the tarp to his trailer pursuant to regulations promulgated by the Mine Safety and Health Administration.  The Fourth Department reinstated the Complaint and overturned the decision of the Supreme Court which had granted summary judgment to the mine owner. 

Although defendant established that it did not supervise or control plaintiff's work, the Appellate Division determined that the defendant failed to establish that it did not have actual or constructive notice of the allegedly dangerous condition on the premises that caused plaintiff's injuries.  Under plaintiffs' theory that defendant had actual or constructive notice of the allegedly dangerous condition, the court considered as evidence of defendant's negligence the alleged violations of the Mine Safety and Health Administration regulations.


02/01/2013      Miller v. Savarino Const. Corp., 2013 N.Y. Slip Op. 00619
Appellate Division, Fourth Department
http://www.nycourts.gov/reporter/3dseries/2013/2013_00619.htm

Plaintiff commenced this personal injury and wrongful death action after plaintiff's decedent suffered a fatal heart attack at a building allegedly owned by defendant 26 Mississippi Street LLC that was undergoing renovation and rehabilitation from a warehouse into a mixed-use facility. Decedent's employer had been hired to provide temporary heat to the building, and defendant Savarino Construction had been hired as the construction manager with respect to the project. Decedent suffered the heart attack after ascending five flights of stairs to reach the uppermost floor of the building, where a temporary heat cannon that decedent and a coworker were to attach to a rigid natural gas line was located. Supreme Court granted defendants' motion for summary judgment, and the Fourth Department affirmed.

Defendant 26 Mississippi Street LLC established through an abstract of title for the property that another entity in fact owned the building, and plaintiff failed to raise a triable issue of fact in opposition to disprove that 26 Mississippi Street LLC was not the owner.

With respect to Savarino Construction, defendants submitted the construction management contract which delineated that Savarino Construction was responsible for, inter alia, coordinating the activities and safety programs of the contractors at the project, but had no control over the acts, omissions or safety precautions of the contractors. Thus, inasmuch as Savarino Construction was not responsible either for the performance of that work or the premises on which that work was undertaken, defendants met their initial burden on that part of the motion concerning the Labor Law § 200 and common-law negligence causes of action with respect to Savarino Construction. Defendants established as a matter of law that they did not have the authority to supervise or control the methods and manner of decedent's work, and plaintiff failed to raise a triable issue of fact sufficient to defeat that part of the motion concerning the Labor Law § 200 and common-law negligence causes of action.

 

02/01/2013      Landahl v. City of Buffalo, 2013 N.Y. Slip Op. 00615
Appellate Division, Fourth Department
http://www.nycourts.gov/reporter/3dseries/2013/2013_00615.htm

Plaintiff was employed by third-party defendant, Industrial Power & Lighting Corporation (IPL), a subcontractor hired by defendant-third-party plaintiff, U & S Services, Inc. (U & S), the project manager.  Plaintiff alleges that he was injured when his foot slid from a worn marble step with a 1 1/2–inch depression on a stairway in Buffalo City Hall.  

The court rejected U & S's contention that its duty to maintain the premises in a safe condition pursuant to Labor Law § 200 was obviated by the open and obvious nature of the stair.  The issue of whether a condition was readily observable impacts on plaintiff's comparative negligence and does not negate a defendant's duty to keep the premises reasonably safe.  Here the defect complained of lies in the condition of the stair in question, not in the installation work plaintiff was assigned to perform. Thus, the alleged open and obvious condition of the stair does not absolve U & S of its duty to keep the workplace in a safe condition.  The Court further ruled that because plaintiff is alleging a defective condition on the premises, it is immaterial whether or not U & S directed or controlled plaintiff's work.

 

02/07/2013      Susko v. 337 Greenwich LLC, 2013 N.Y. Slip Op. 00793
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2013/2013_00793.htm

Plaintiff was injured in a fall from scaffold.  It was unrefuted that during an ongoing construction project, plywood sheeting was placed over the planks on the scaffold and that, in one area, there were two planks missing beneath the plywood.  The property owner, 337 Greenwich LLC, moved to dismiss the common-law negligence and Labor Law § 200 claims against it.  The First Department affirmed the denial of the property owner’s motion. 

377 Greenwich argued that the planks were improperly removed, or possibly even stolen, by the employees of another contractor, but the court determined that no facts were presented from which to conclude that this was an extraordinary and/or unanticipated intervening act that constituted a superceding cause for plaintiff's injuries. 377 Greenwich's characterization of the removal of the planks as a “theft” is entirely speculative and, even if true, does not convert this forseeable event into a superceding intervening cause.

Specifically in regards to plaintiff's Labor Law § 200 and common-law negligence claims, 377 Greenwich moved to dismiss on the sole ground of lack of notice, yet never argued lack of supervision or control of plaintiff’s work.  Because this claim involved an allegation concerning the manner and methods of plaintiff’s work, and not a defect on the property, it was incumbent on the defendant to make a prima facie showing that it did not have the authority to supervise or control the methods and manner of decedent's work.  As 337 Greenwich never addressed this issue, it was not entitled to summary judgment.  


02/19/2013      Mouta v. Essex Market Development LLC, 2013 N.Y. Slip Op. 01032
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2013/2013_01032.htm

Plaintiff Domingos Mouta was injured when he stepped on a section of plywood platform that, unbeknownst to him, was being dismantled and he fell from the fourth floor to the second.  The general contractor, JF Contracting Corp., demonstrated that it did not supervise and control plaintiff's work or the area of the work site in which plaintiff's accident occurred, and therefore cannot be held liable for plaintiff's injures under Labor Law § 200 or common-law negligence principles.  The record demonstrates that plaintiff's employer, which pursuant to its contract with JF was responsible for site safety, was in charge of all aspects of the work at issue, including safety.

 

02/21/2013      Velasquez v. 795 Columbus LLC, 2013 N.Y. Slip Op. 01174
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2013/2013_01174.htm

Plaintiff alleges that he was injured when he slipped and fell on “mud, rocks and water” at a construction site that, at the time, consisted of an open excavation. He claims that a muddy condition had formed on the concrete floor at the bottom of the site due to water from rain and a nearby water main break that occurred a few days before the accident. As to the Labor Law § 200 claim, the general contractor defendant Tishman failed to rebut plaintiff's prima facie showing of a hazardous condition, and the evidence shows that Tishman had notice of the water main break and the muddy condition.  The First Department affirmed the decision of the Supreme Court which not only denied summary judgment to Tishman, but granted summary judgment to plaintiff on Labor Law § 200 or common-law negligence.

The Labor Law 200 decisions from February stayed true to form and no substantive changes in the law, but at least they contained some interesting theories and points of caution in defending these claims.     Don’t leave an argument on table. 

 

Indemnity Issues in Labor Law

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

02/07/13          Susko v 337 Greenwich, LLC
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2013/2013_00793.htm

As noted above, plaintiff sustained injury when he fell from/through unsupported plywood that had been laid down on scaffolding.  As result of the incident, plaintiff sought recovery for his injuries by way of a Complaint against 337 Greenwich. 

Upon being named in the lawsuit, Greenwich commenced cross-claims over and against co-defendant Magnetic.  The first cross-claim sought recover from Magnetic under a theory of common law indemnification.  The second cross-claim, not surprisingly, sought contractual indemnity. 

In affirming the dismissal of Greenwich’s cross-claims, the Appellate Division first noted that the Greenwich/Magnetic contract did not “clearly and unambiguously” provide that Magnetic would indemnity Greenwich.  In support of its conclusion, the Court specifically noted that the contract at issue was unsigned and “replete with editorial markings.” 

In addition, Greenwich’s motion for common law indemnity was denied, and its claims dismissed, where it was unable to provide any evidence of negligence on behalf of Magnetic.  Recall, under the precedent from the Court of Appeals, common law indemnity cannot be established unless (a) the party seeking indemnity is free from negligence and (b) the party from whom indemnity is sought is adjudged to have some degree of injury. 

 

02/14/13          Imbriale v Richter & Ratner Contracting Corp.
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2013/2013_01002.htm

Plaintiff was employed by Competition when he fell to his death while working at  jobsite owned by 24 West 57th.  As a result of the tragedy, the decedent’s estate commenced a lawsuit against West 57th (owner), ATNY (tenant) and R&R (general contractor).   As noted above, decedent’s estate was awarded summary judgment on the Labor Law § 240(1) cause of action. 

At the same time, West 57th and ATNY moved for common law indemnification against decedent’s employer, Competition.  Where both parties were able to establish that they were free of negligence, and Competition was unable to refute any argument that it bore some percentage of culpability, it followed that both West 57th and ATNY were entitled to an award of common law indemnification.  However, R&R’s motion for common-law and/or contractual indemnification was denied where, as here, a question of fact existed as to their negligence. 

 

02/14/13          Auqui v Seven Thirty One Ltd. Partnership
Court of Appeals
http://www.nycourts.gov/reporter/3dseries/2013/2013_00950.htm

The Auqui decision has nothing to do with indemnity.  However, we thought it interesting enough to include here.  As you will see, the Court of Appeals addresses an interesting issue that is, in no way, foreign to Labor Law claims.  

The instant case involves a work place accident involving Jose Verdugo. As a result of the incident, Mr. Verdugo sought treatment for head, neck and back injuries, as well as post-traumatic stress disorder. As it was a work-related incident, Mr. Verdugo filed for, and received, workers’ compensation benefits from 2004 through 2006. In the interim, Mr. Verdugo also commenced a 2005 personal injury action against the owner of the parcel where the incident occurred.

By way of a January 24, 2006 decision from the Workers’ Compensation Board, it was determined that Mr. Verdugo was no longer disabled from returning to work. That finding was challenged by Mr. Verdugo, and in February of 2007, the an Administrative Law Judge ruled that Mr. Verdugo’s disability ended on the date of the WCB determination and that no further treatment was necessary.

As a result of these rulings, defendant moved to preclude plaintiff from re-litigating the duration of the injury. Where, as here, the party had a full and fair opportunity litigate the case, defendants argued that collateral estoppel precluded any reargument.

In holding for the defendant, the Court of Appeals noted that determinations of administrative agencies will be given preclusive effect where they address issues of fact. Here, the duration of plaintiff’s injuries, was, in the Court’s eyes, a question of fact, and collateral estoppel was appropriate. The decision was bolstered by evidence that plaintiff had presented expert testimony, cross-examined witnesses for the defendant compensation carrier, and submitted a litany of medical reports. Accordingly, plaintiff was unable to relitigate issues related to Mr. Verdugo’s lost earnings and compensation for medical expenses.

Judge Pigott penned the only dissent in this matter, and argued that the decision by the WCB (and subsequently the ALJ that presided over the appeal) was, by its very nature, a decision of law and fact. Accordingly, there should be no preclusive effect given. Judge Pigott reasoned that the determination as to an injured workers’ compensation benefits should be limited to that proceeding, and should not be permitted to bar the injured party from pursing these claims in subsequent civil litigation.

 

02/19/13          Mouta v Essex Market Development, LLC
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2013/2013_01032.htm

In another workplace fall, plaintiff was employed by third-party defendant Marangos at a jobsite owned by Essex.  In defense of this matter, general contractor JF demonstrated that it did not supervise, direct or control plaintiff’s work.  Thus, where Marangos was responsible for the incident, and JF was absolved any negligence, it followed that JF was entitled to both common law and contractual indemnification. 

Interestingly, the court denied Essex’s motion for indemnity against Marangos.  For some reason, Essex’s motion failed to include a copy of the third-party Complaint.  As you know, failure to incorporate all relevant pleadings is fatal to any dispostive motion. 

 

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

 

            Here you will find a table we have developed listing the most common NYCRR regulations used to support Labor Law §241(6)claims.  There are columns indicating if the regulation section is specific, and thus able to support a claim, or general and thus not able to do so.  Additionally we have provided the supporting case law and a very brief description of the facts surrounding the ruling.  We hope you will find this helpful.  We will continue to update this table every month with the recent case law.

 

INDUSTRIAL CODE REGULATION

SPECIFIC OR NOT SUFFICIENTLY SPECIFIC

CASE LAW

FACTS

12 NYCRR § 12-1.4 – Prevention of air contamination

§ 12-1.4(a), (b)(1), (2), (3) and (4) are not sufficiently specific

Piazza v Frank L. Ciminelli Const. Co., Inc. 2 AD3d 1345 770 NYS2d 504 (4TH Dept. 2003);

Nostrom v A.W. Chesterton Co., 15 NY3d 502, 914 NYS2d 725 (2010)

In Piazza, although work performed at apartment and flooring being replaced, laborer’s work in removing trash from vacant apartment not part of construction.

In Nostrom, 2 owners of energy facilities at which decedent worked and GC for the 2 projects were not vicariously liable for decedent's injuries where liability predicated solely upon violations of regulations pertaining to control of air contaminants in the workplace.

12 NYCRR § 12-1.5(a) – Personal respiratory protective equipment

§ 12-1.5(a) and (b) are not sufficiently specific

Piazza v Frank L. Ciminelli Const. Co., Inc.

 

12 NYCRR § 12-1.6 – Personal protective equipment

§ 12-1.6(a) cannot serve as a predicate for liability as it is not sufficiently specific

Nostrom v A.W. Chesteron Co.;

Piazza v Frank L. Ciminelli Const. Co.

 

12 NYCRR § 12-1.9 – Entering confined spaces

§ 12-1.9(a)(1), (b)(5) and (b)(6) are sufficiently specific

Piazza v Frank L. Ciminelli Const. Co.;

Rivera v Ambassador Fuel and Oil Burner Corp., 45 AD3d 275, 845 NYS2d 25 (1st Dept. 2007)

In Rivera, work performed involved more than simple cleaning of fuel tank and part of overall contract for installation of new boiler and thus, it could not be said as matter of law that cleaning of tank was not related to construction. 

12 NYCRR § 21.3(d) – Protection of Persons Employed at Window Cleaning; Structural requirements; Equipment and procedures; Defective windows and structures

§ 21.3(d) is sufficiently specific

Padovano v Teddy’s Realty Associates, Ltd., 56 AD3d 444, 866 NYS2d 743 (2d Dept. 2008)

In Padovano, worker fell out of window after losing his balance in trying to open it and although there was evidence premises owner warned worker of problems in opening window, it was error to dismiss Labor Law § 202 claim because it was not demonstrated that § 202 and rules promulgated thereunder were complied with and thus, a triable issue of fact exists as to whether window was defective.

12 NYCRR part 23 – Protection in Construction, Demolition and Excavation Operations

Specific regulatory standards are not met simply by reference to 12 NYCRR part 23

Mamo v Rochester Gas & Elec. Corp., 209 AD2d 948, 619 NYS2d 426 (4th Dept. 1994

In Mamo, plaintiff's reference to section containing regulations regarding use of adequate scaffolding, safety belts, life lines, life nets, and aerial baskets in general context of construction and maintenance did not meet requirement of allegation of specific regulatory violation in Labor Law action pertaining to workplace safety.

12 NYCRR § 23-1.2 – Protection in Construction, Demolition and Excavation Operations

§ 23-1.2, 1.2(c) and (e) are general provisions and thus, not sufficiently specific

Stairs v State St. Assocs., 206 AD2d 817, 615 NYS2d 478 (3d Dept. 1994);
Doyne v Barry, Bette & Led Duke Inc., 246 AD2d 756, 668 NYS2d 58 (3d Dept. 1998)

 

12 NYCRR § 23-1.3 – Protection in Construction, Demolition and Excavation Operations

§ 23-1.3 is a general provisions and thus, not sufficiently specific

Williams v White Haven Memorial Park, Inc., 227 AD2d 923, 643 NYS2d 787 (4th Dept. 1996); McGrath v Lake Tree Vil. Assocs., 216 AD2d 877, 629 NYS2d 358 (4th Dept. 1995) 

 

12 NYCRR § 23-1.4 – Protection in Construction, Demolition and Excavation Operations

§ 23-1.4(a) and (b)(13) are not sufficiently specific

Ross v Curtis-Palmer Hydro-Elec. Co.,
81 NY2d 494, 601 NYS2d 49 (1993); Dombrowski v Schwartz, 217AD2d 914, 629 NYS2d 924 (4th Dept. 1995)

 

12 NYCRR § 23-1.5 – Protection in Construction, Demolition and Excavation Operations; General responsibility of employers. 

§ 23-1.5(a), (c)(1), (c)(2) and (c) (3) set forth only general safety standards and are not sufficiently specific

Pereira v Quogue Field Club of Quogue, 71 AD3d 1104, 898 NYS2d 220 (2d Dept. 2010); Wilson v Niagara University, 43 AD3d 1292, 842 NYS2d 819 (4th Dept. 2007);Gasques v State, 15 NY3d 869, 910 NYS2d 415 (2010); Williams v White Haven Memorial Park, Inc.

 

12 NYCRR § 23-1.6 – Protection in Construction, Demolition and Excavation Operations; Responsibility of employees

§ 23-1.6 constitutes general safety standards

Balladares v Southgate Owners Corp., supra);

Lawyer v Roterdam Ventures, 204 AD2d 878, 612 NYS2d 682 (3d Dept. 1994])

In Balladares, § 23-1.6 inapplicable where worker injured as result of basement floor collapse during demolition of brick wall with jackhammer. 
In Lawyer, § 23-1.6 inapplicable where plaintiff, while erecting sign on front of building, fell from ladder when it slipped and collapsed.

12 NYCRR § 23-1.7(a) – Protection in Construction, Demolition and Excavation Operations; Protection from general hazards; Overhead hazards

§ 23-1.7(a)(1) is sufficiently specific

Roosa v Cornell Real Property Servicing Inc., 38 AD3d 1352, 831 NYS2d 784 (4th Dept. 2007);

In Roosa, evidence of prior incidents of branches falling from trees sufficient to create question of fact as to whether work site “normally exposed to falling material or objects.”

12 NYCRR § 23-1.7(b) – Protection in Construction, Demolition and Excavation Operations; Protection from general hazards; Falling hazards; Hazardous openings

§ 23-1.7(b)(1) is sufficiently specific

Bonse v Katrine Apartment Assoc., 28 AD3d 990, 813 NYS2d 578 (3d Dept. 2006)

In Bonse, § 23-1.7 potentially applicable to accident where plaintiff stepped down and broke through both subflooring and sheetrock ceiling of first floor.

12 NYCRR § 23-1.7(c) – Protection in Construction, Demolition and Excavation Operations; Protection from general hazards; Drowning hazards

§ 23-1.7(c) is sufficiently specific

Collado v New York, 72 AD3d 458, 900 NYS2d 10 (1st Dept. 2010)

In Collado, fender system from which decedent fell was a “work location” within meaning of § 23-1.7(c) because evidence that workers, including decedent, performed work duties on it, and record presented issues of fact whether there was a continuously patrolling boat at accident site and whether absence of such a boat was a factor in the drowning death.

12 NYCRR § 23-1.7(d) – Protection in Construction, Demolition and Excavation Operations; Protection from general hazards; Drowning hazards

§ 23-1.7(d) is sufficiently specific

Rizzuto v L.A. Wenger Contracting Co., Inc., 91 NYS 343 (1998)

Cook v Orchard Park Estates, Inc., 73 AD3d 1263, 902 NYS2d 674 (3d Dept. 2010)

In Cook, § 23-1.7(d) inapplicable where plaintiff slipped on snow-covered plastic because it is not a “tripping hazard” and further, regulation not applicable to open area between sidewalk and building.

12 NYCRR § 23-1.7(e) – Protection in Construction, Demolition and Excavation Operations; Protection from general hazards; Tripping and other hazards

§ 23-1.7(e)(1) and (2) are sufficiently specific

Mugavero v Windows by Hart, Inc., 69 AD3d 694, 894 NYS2d 448 (2d Dept. 2010);
McGrath v Lake Tree Vil. Assocs., 216 AD2d 877, 629 NYS2d 358 (4th Dept. 1995). 

In McGrath, § 23-1.7(e)(2) applicable to specific work area as floors, platforms and defined passageways, and not common areas or an open yard in front of or between buildings.

12 NYCRR § 23-1.7(f) – Protection in Construction, Demolition and Excavation Operations; Protection from general hazards; Vertical passage

§ 23-1.7(f) is sufficiently specific

Miano v Skyline New Homes Corp., 37 AD3d 563, 830 NYS2d 257 (2d Dept. 2007)

In Miano, § 23-1.7(f) applicable where worker fell backwards while descending temporary wooden forms he was using as means of access to basement worksite.

12 NYCRR § 23-1.7(g) – Protection in Construction, Demolition and Excavation Operations; Protection from general hazards; Air contaminated or oxygen deficient work areas

§ 23-1.7(g) is sufficiently specific

Rivera v Ambassador Fuel and Oil Burner Corp., 45 AD3d 275, 845 NYS2d 25 (1st Dept. 2007)

In Rivera, § 23-1.7(g) applicable to accident involving cleaning of fuel tank in unventilated room.

12 NYCRR § 23-1.7(h) – Protection in Construction, Demolition and Excavation Operations; Protection from general hazards; Corrosive substances

§ 23-1.7(h) is sufficiently specific

Welsh v Cranesville Block Co., Inc., 258 AD2d 759, 685 NYS2d 825 (3d Dept. 1999)

In Welsh, genuine issue of material fact as to whether cemetery breached nondelegable duty owed to concrete mason by employer's failure to provide adequate boots to protect him from corrosive effects of concrete he was required to kneel in while performing his work on mausoleum precluded summary judgment.

 

Hurwitz & Fine, P.C. is a full-service law firm
providing legal services throughout the State of New York

Labor Law Pointers
Editor
David R. Adams

Associate Editor

V. Christopher Potenza

Associate Editor
Steven E. Peiper

Associate Editor

Jennifer A. Ehman

Associate Editor
Marc A. Schulz

Labor Law Team
David R. Adams, Team Leader
[email protected]

Dan D. Kohane
[email protected]

Michael F. Perley
[email protected]

V. Christopher Potenza
[email protected]

Steven E. Peiper
[email protected]

Cassandra A. Kazukenus
[email protected]

Jennifer A. Ehman
[email protected]

Marc A. Schulz
[email protected]

Hurwitz & Fine, P.C.
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