From the Editor:
Some months I am left without a specific topic for my introduction. This is not that type of month. On March 7th the Governor appointed, and yesterday the Senate Judiciary Committee unanimously approved his nomination of Justice Sheila Abdus-Salaam to the New York Court of Appeals. Unanimous confirmation by the full Senate is anticipated on May 6th. She will be the first African American woman on the court.
Why, you might ask, would this get David excited? The answer is that I try and track the departments to look for differences in the way they decide labor law cases and I had the idea to pull her decisions and see if I could predict her opinion on labor law cases when she got to the Court of Appeals. So what I did was to find her decisions, well actually I had Mark Schulz pull them but I did read them all, and look for any trends I could find. What we did was look primarily at her decisions when she was on the trial bench but also looked at her decisions when she was sitting in the First Department. In cases where she wrote the decision, 12 were in favor of defense, 3 in favor of plaintiff, and one was a split decision. She was overturned by the first on two occasions, once where she ruled for the plaintiff and once where she had ruled for the defendant. Her decisions are well reasoned and do not appear to have a leaning towards either the plaintiff or the defendant, though she did rule for the defendant more often than the plaintiff, a rarity in the world of labor law. I look forward to reading her decisions from the court of appeals. For those of you who are interested, I have attached a summary of these decisions to the edition.
Once again I invite any and all question on all topics labor law related. I get some great ones and enjoy working through the various scenarios put to me each month. I have attached below some photographs I took last month on scaffolding being erected and the way the pipes were raised to the top of the scaffold. You will notice by the language on the signs that OSHA would have no authority over this activity. I was actually walking down a street in Paris with my family over spring break and while everyone else was looking at the beautiful buildings I broke into a cold sweat imagining the violations inherent in the scene before me. Then I remembered that I was not in New York and I calmed right down.
Enjoy the cases and analysis below and enjoy the fact that it appears as if spring has actually arrived.
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.
Amendola v. Rheedlen 125th St., LLC
April 2, 2013
Appellate Division, First Department
Plaintiff was injured when he fell from a ladder while installing window shades in a building owned by defendant Rheedlen 125th and leased by defendant Harlem Children’s Zone, Inc. (HCZ). HCZ retained defendants Tishman as a construction manager to construct a charter school and community center, and Tishman retained third-party defendant City View Blinds and Abalene Decorating (collectively City View), plaintiff’s employer, for window treatment and window shade work. The Supreme Court granted defendants motions for summary judgment dismissing the Labor Law § 240(1) and § 241(6) claims.
Labor Law § 240(1) (DRA)
Contrary to plaintiff’s contention, his work of hanging window shades at the time of the accident does not constitute “altering” within the meaning of Labor Law § 240(1). The evidence showed that the shade installation work essentially entailed securing brackets with screws to the ceiling or pan protruding from the wall, and inserting the shades into the brackets. The First Department held this work does not amount to a “significant physical change to the configuration or composition of the building or structure.” As the plaintiff and witnesses testified that new shades were being installed at the time of the accident, the plaintiff’s work did not constitute “repairing” under the statute.
PRACTICE POINT: The courts have universally held that hanging shades does not qualify as the type of task the labor law is intended to offer protection to the plaintiff from being injured while preforming. The court also found that the task of putting up the shades was not a part of a larger construction project but stops short of saying that had it in fact been that it would have qualified.
Labor Law § 241(6) (JAE)
For the same reasons as above, the work did not constitute construction, demolition or excavation; thus, plaintiff’s §241(6) claim was likewise dismissed.
Bodtman v. Living Manor Love, Inc.
April 2, 2013
Appellate Division, First Department
Plaintiff was to drill several holes in the roof of a motel in order to attach a temporary sign. After ascending to the motel’s roof, but prior to performing such work, plaintiff slipped off the roof and fell to the ground. The Supreme Court denied defendants RM Farm and Living Manor’s motion for summary judgment dismissing plaintiff’s Labor Law § 240 and § 200 and common-law negligence claims.
Labor Law § 240(1) (DRA)
The First Department held that dismissal of the Labor Law § 240(1) claim is warranted since plaintiff’s work was outside the scope of activity protected by the statute. The record demonstrates that the work plaintiff was to perform would have entailed making only a slight change to the building by drilling a few shoes in the roof and did not constitute “altering” under the statute.
PRACTICE POINT: This is a great case, at least for those practicing in the First Department. While the first held that drilling a few holes in the roof was not an alteration of the type considered by Joblon, I have no confidence that the other departments would follow suit.
Labor Law § 200 and Common-Law Negligence (VCP)
Another rare feat as the defense is successful in arguing what is essentially the “open and obvious hazard” defense to obtain dismissal of the Labor Law 200/ common law negligence claims. While this defense is typically available at trial, it is not that often that the Court will dismiss as a matter of law. “Building owner and real estate agent were not liable under statute imposing general duty to protect the health and safety of workers and for common law negligence, on a theory that they had constructive notice of dangerous condition that resulted in laborer's fall from roof of building, where inherent risk of walking up smooth portion of sloped metal roof rather than walking on one of the visibly corrugated portions was just as apparent to laborer as it would have been to defendants.” This case is a good citation to keep handy.
Nacewicz v. Roman Catholic Church of the Holy Cross
April 2, 2013
Appellate Division, First Department
Vlad Restoration (Vlad) was hired by defendant to perform a complete renovation of defendant’s church. Plaintiff, a bricklayer’s assistant employed by Vlad, was performing brickwork on the exterior of the church as part of the renovation. The “sidewalk bridge”, or first tier of a four-tiered exterior scaffold was accessible from the ground via a number of secured extension ladders. Plaintiff was working on the ground level when the bricklayer told him to ask Zenon Bogucki, who was acting as substitute foreman for the day, a question. Plaintiff ascended to the sidewalk bridge using one of the properly secured ladders. When Bogucki still could not hear plaintiff from the sidewalk bridge, plaintiff began ascending a second extension ladder that was not properly secured. The ladder slid, causing plaintiff to fall to the sidewalk bridge approximately 10 feet below.
Labor Law § 240(1) (DRA)
To establish a claim under this provision, a plaintiff must “show that the statute was violated and that the violation proximately caused his injury.” To raise a triable issue of fact as to whether a plaintiff was the sole proximate cause of an accident, defendant must produce evidence that adequate safety devices were available, that plaintiff knew that they were available and was expected to use them, and that plaintiff unreasonably chose not do so, causing the injury sustained.
“It is well settled that failure to properly secure a ladder to insure that it remains steady and erect while being used, constitutes a violation of Labor Law § 240(1). The First Department held that plaintiff adduced sufficient evidence to show that he fell 10 feet from an unsecured extension ladder which slid. He testified the ladder was already set up for usage when he arrived on the sidewalk bridge. Defendant failed to contradict this claim, only advancing Bogucki’s testimony that he saw the ladder lying on its side earlier in the day. Defendant’s argument that plaintiff should have checked the ladder does not show intentional misuse or other egregious misconduct and amounts, at most, to contributory negligence, a defense inapplicable under the statute.
Defendant also argued that plaintiff was the sole proximate cause of his injuries because he did not use the fire escape to ascend to the scaffold’s second tier. However, the evidence fails to raise question of fact as to whether plaintiff knew he was expected to use this alternate means of ascending to the second tier and unreasonably chose not to use it because when Bogucki was asked at his deposition whether he ever told plaintiff to use the fire escape, he replied that plaintiff had just returned from Poland three days earlier and was new to this site and Bogucki believed “there was no need to give such [an] explanation to him” because plaintiff was supposed to be assigned “to just do the cement job at the bottom.”
Bogucki further testified that the foreman told “all the workers that the fire escape is the standard way of moving between the platforms” but admitted this was weeks earlier and before plaintiff’s return from Poland. The First Department held this instruction, if it was established it was given to plaintiff, would not suffice to create an issue of fact on the sole proximate cause argument because the instruction does not establish that plaintiff was ever told the use of the extension ladder was forbidden, or, simply stated, that the use of fire escapes was not only the “standard way”, but the exclusive way to move between tiers. Plaintiff did not work on the scaffold and had not accessed its tiers prior to this occasion, as he had previously only worked on the ground and roof. Therefore, the First Department held that defendant failed to show that plaintiff knew he was expected to only use the fire escape rather than an extension ladder to access the second scaffold tier and unreasonably chose not to do so.
PRACTICE POINT: This case highlights two important points; first that when a ladder shifts causing the plaintiff to fall the court is going to find that the ladder was either improperly placed or improperly secured and that it is thus a violation of 240(1). The second important point covered in this case is that for the sole proximate cause defense to be successful all three criteria must be met, appropriate safety device, available to the plaintiff and that the plaintiff has been instructed to use that safety device. Failure of any of those criteria doom the sole proximate cause defense.
Gabrus v. New York City Housing Authority
April 3, 2013
Appellate Division, Second Department
Plaintiff, a worker employed by the nonparty Whitestone Construction Corp., was working on the renovation of a six-story building owned by defendant NYC Housing Authority. Defendant Bovis Lend Lease was the general contractor on the project. On the morning of the accident, the drag line for a load of roofing material was being lifted to the top of the building became stuck. The plaintiff then went to free the drag line and, as he was doing so the load of material broke apart and fell on him. The Supreme Court denied plaintiff’s motion for summary judgment on his § 240(1) cause of action finding that plaintiff was the sole proximate cause of his own injuries, the second disagreed and granted Summary Judgment to the plaintiff .
Labor Law § 240(1) (DRA)
In order to recover damages for violation of the statute, “a plaintiff must show that, at the time the object fell, it was being hoisted or secured” or “required securing for the purposes of the undertaking.” Here, the Second Department held that plaintiff established prima facie entitlement to judgment as a matter of law by demonstrating the load of material hoisted to the top of the six-story building was inadequately secured, and that the load fell on him, causing his injuries. Additionally, the court held that the plaintiff’s own negligence was only comparatively negligence and not the sole proximate cause.
PRACTICE POINT: In light of this statutory violation, defendant’s argument that plaintiff was the sole proximate cause of his own injury fails. The court held that even if plaintiff were negligent the fact that the statute was violated meant that plaintiff’s conduct would be, at most, comparative negligence given that the statute was violated and thus that was a proximate cause of the injury. When there are multiple proximate causes of an injury none of them can, by definition, be the sole proximate cause.
Vasquez v. C2 Dev. Corp.
April 3, 2013
Appellate Division, Second Department
Plaintiff allegedly was injured when, in the course of his employment when he fell from a scaffold which collapsed beneath him. According to plaintiff’s deposition, he fell as he was removing a fluorescent light fixture and moving it from one area of the ceiling to another. The Supreme Court denied plaintiff’s motion for summary judgment on his Labor Law § 240(1) cause of action insofar as asserted against defendant.
Labor Law § 240(1) (DRA)
The Second Department held that plaintiff made a prima facie showing of entitlement to judgment as a matter of law by submitting his deposition testimony, which demonstrated that the board of the scaffold on which he was standing collapsed, causing him to fall and sustain injuries. Even when the evidence is viewed in the light most favorable to defendant, plaintiff’s work, as described in his deposition and the affidavit of his employer submitting in opposition to plaintiff’s motion, constituted “altering” within the meaning of the statute. Moreover, the Second Department held that C2 is liable under the statute for any violation that proximately caused plaintiff’s injuries, even though plaintiff was employed by its tenant.
PRACTICE POINT: Three swings by the defense to defeat the Summary Judgment motion and, in the end, three strikes and plaintiff is granted Summary Judgment. First, where a board on the scaffold breaks causing the plaintiff to fall, that qualifies as a violation of 240(1), no surprise there. Second, moving the light from one location on the ceiling to another was found by the court to be an alteration, presumably involving the drilling of holes and the running of wire, again a result we have seen before. Third, the plaintiff is the employee of the tenant and sues the owner for the violation of the labor law. This portion is a little harder to swallow. The tenant could generally be sued by a non-employee in this case as the work was being done for its benefit and thus the tenant would generally be deemed to be an agent of the owner and thus an appropriate defendant under the labor law. Why then can an employee of that same entity be allowed to sue the owner? The answer is or course because that does not make the owner the employer for section 11 purposes, this is not the first time we have seen this, in fact it is rather common, but it still sticks in my craw a bit. The trial court did not grant Summary Judgment but was overturned by the second.
Durando v. City of New York et al.
April 3, 2013
Appellate Division, Second Department
Plaintiff was working as a scaffolding installer and remover for third-party defendant Champion Construction on the SS Chemical Pioneer, a ship in dry dock for repairs at the Brooklyn Navy Yard. He allegedly sustained injuries when fell through an improperly covered opening in the floor or deck of one of the ship’s cargo holds. He sued City of New York, the owner of the land; defendant GMD Shipyard, the ship repair contractor; and defendant GMD Enterprises, which leased the subject dry dock from defendant BNYDC. Defendants brought a third-party action against Champion Construction for contribution and indemnification.
The Supreme Court dismissed all causes of actions except those alleging violations of Labor Law § 240(1) and § 241(6) against the City, granted plaintiff summary judgment on the § 240(1) claim, dismissed the third-party cause of action for common law indemnification and contribution, and granted GMD Shipyard summary judgment on its third-party claim for contractual indemnification.
Labor Law § 240(1) (DRA)
“[C]auses of action alleging violations of Labor Law § 240(1) and § 241(6) and not preempted by general maritime law.” Here, the application of those statutes, “which are local regulations enacted to protect health and safety of workers in this state, will not unduly interfere with a fundamental characteristic of maritime law or the free flow of maritime commerce.”
The Second Department held that plaintiffs established entitlement to summary judgment by showing that there was a failure to provide a proper safety device to prevent the injured plaintiff from falling through a hole in the deck of the ship’s cargo hold. The Supreme Court further held that summary judgment was properly granted to defendants against GMD Enterprises because they established that GMD Enterprises was the functional equivalent of an out-of-state possession landlord, did not have the right to control the work of GMD Shipyard, the ship repair contractor, or Champion, a scaffolding subcontractor working on the SS Chemical Pioneer. Moreover, plaintiffs failed to raise to raise a triable issue of fact as to whether GMD Enterprise and GMD Shipyard were so closely related that GMD Enterprises could be deemed to have had the right to control GMD Shipyard’s ship repair work.
PRACTICE POINT: Start with the fact that a ship in dry dock is a structure. Second, labor law can, and does, exist in concert with Federal Maritime Law and is not preempted by the federal statute. Finally, falling through an improperly covered opening while engaged in setting, moving or disassembling scaffold is a violation of 240(1).
Indemnity Issues in Labor Law (SEP)
With regard to the City's motion for common law indemnity, the Court affirmed the trial court's denial on the basis that plaintiff had not suffered a grave injury. As plaintiff was employed by Champion, the court advised that Section 11 of the Workers' Compensation Law barred any common law right of recovery. In reaching this conclusion, the court noted that the City's liability was occasioned out of New York State Labor Law violations, and therefore not related to Federal Maritime law. Accordingly, the Workers' Compensation law, and therefore Section 11, precluded the City's claim.
On the other hand, Champion could not avoid its contractual indemnity obligations to GMD. Champion argued that, under New York State law, it did not have to indemnify GMD for its own negligence. Unfortunately, for Champion, however, the Court noted that the contract at issue fell within the scope of Federal Maritime law. As maritime law permits a party to be indemnified for its own negligence, the Court reasoned that GMD's claim for indemnity was permissible regardless of its own potential negligence.
Vargas v. Peter Scalamandre & Sons, Inc.
April 4, 2013
Appellate Division, First Department
Plaintiff sustained injuries after he fell over a pile of material. There was testimony in the record that the pile was caused earlier that day by a Ferrara (the concrete supplier) truck driver washing out his truck onto the ground after delivering a load of concrete to Peter Scalamandre & Sons, Inc. Further, there was testimony that plaintiff’s supervisor alerted Salamadre’s supervisor of the condition, who in turn responded that he would get to it when he had a chance.
As a result of the accident, plaintiff sued the concrete supplier (Ferrara), the concrete contractor (Scalamandre), the bricklayer (Rad & D’Aprile Construction) and another concrete supplier (Industrial Interstate). The trial court denied all defendants’ motions for summary judgment dismissing the Labor Law § 241(6) and § 200 and common law negligence claims.
Labor Law § 241(6) (JAE)
Labor Law § 241(6) does not automatically apply to all subcontractors on a site or in the “chain of command.” Rather, for liability under the statute to attach to a defendant, a plaintiff must show that the defendant exercised control, either over the plaintiff, the specific work area involved or the work that gave rise to the injury.
Here, while there was evidence connecting Ferrara and Scalamandre to the particular pile of material over which plaintiff fell, the court found there was insufficient evidence connecting Rad and Interstate Industrial to that pile. Since questions of fact existd as to whether those defendants exercised control over the work that gave rise to the injury, the disposal of excess concrete in the course of their operations, Ferrara and Scalamandre’s motions seeking dismissal of the Labor Law § 241(6) claims against them were denied,.
The Court further stated that Industrial Interstate’s receipt of a delivery from Ferrara to a different area of the site did not connect them to the accident, and the fact that Rad may have left mortar on the ground on past occasions was irrelevant since there was no evidence in the record that the pile of material over which plaintiff fell was left by Rad. That Rad or Interstate may have contributed to other accumulations of debris was irrelevant as those accumulations were not implicated in plaintiff’s accident.
Labor Law § 200 and Common-Law Negligence (VCP)
While the court dismissed plaintiff's common law and Labor Law § 200 claims against some of the contractors (Rad and Interstate) on the evidentiary basis that they had no role in creating the subject pile, the motion was denied as to the concrete supplier (Ferrara) and the concrete contractor (Scalamandre) as there was evidence that Ferrara created the pile and that Scalamandre was obligated by contract to clean the concrete wash down area during pour operations and was placed on actual notice that its vendor had created the pile.
Mikelatos v. Theofilaktidis
April 10, 2013
Appellate Division, Second Department
Plaintiff, a principal of third-party defendant P&P, allegedly was injured when he slipped on ice and fell on a driveway at a construction site. P&P was a subcontractor hired by defendant/third-party plaintiff TMA, the general contractor, to perform tile work in the interior of a building under construction. The contract between TMA and P&P required P&P to indemnify TMA “from and against all claims, damages, losses and expenses … arising out of or resulting from performance of P&P’s Work … but only to the extent caused by the negligent acts or omissions of P&P.” TMA moved for summary judgment on its third-party cause of action for contractual and common law indemnification, and P&P cross-moved to dismiss the third-party claims.
Indemnity Issues in Labor Law (SEP)
TMA subsequently sought third-party contractual indemnification and/or common law indemnification from P&P Marble.
With regard to TMA’s motion for summary judgment on contractual indemnification, the Court noted that the movant must establish that it was free of negligence in relation to the injury causing event. Here, as the loss occurred due to a defective condition at a premises, the actual or constructive notice standard governed TMA’s supposed negligence. TMA’s supervision, direction or control of plaintiff’s work was irrelevant for purposes of this case.
Where, as here, TMA could not establish that it did not possess actual, or constructive, notice of the icy condition; its motion could not be granted.
On the other hand, however, P&P’s cross-motion dismissing the contractual indemnity claim was granted. The clause at issue provided indemnity only where the loss arose out of P&P Marble’s negligent acts or omissions. Because there was no evidence that P&P Marble had done anything incorrectly, it followed that the indemnity clause had not been triggered.
In a similar vein, the Court also denied and dismissed TMA’s common law indemnity claim. To prevail on a common law indemnity claim, the moving party must establish that it was not negligent, and that the party from whom indemnity is sought was, in fact, actively negligent. For the foregoing reasons referenced above, TMA failed to exonerate itself from any negligence claim. On the other hand, P&P Marble was able to establish that it did not act in a negligent manner.
Paganini v. Congregation Eretz H’Chaim
April 10, 2013
Appellate Division, Second Department
Plaintiff allegedly sustained injuries when he fell from a wet, unsecured ladder lacking rubber feet. The Supreme Court denied defendants cross-motion for summary judgment dismissing the Labor Law § § 240(1) and 241(6) claims, and granted plaintiff’s motion for summary judgment on his § 240(1) cause of action.
Labor Law § 240(1) (DRA)
The Second Department held that plaintiff established prima facie that defendant violated the statute when it provided him with a wet, unsecured ladder lacking rubber feet, and that the violation proximately caused the ladder to shift and plaintiff to fall to the ground. Plaintiff further established that defendant is not entitled to the protection of the homeowners’ exemption.
PRACTICE POINT: Once again where the ladder shifts and the plaintiff falls, it is and seemingly will always be a violation of 240(1). Here it is even worse as the ladder was wet, unsecured and did not have rubber feet on it. Thus not only did the ladder shift but it was also defective. Double whammy.
Reinoso v. Biordi
April 11, 2013
Appellate Division, First Department
Defendant Frank Biordi and his brother, the homeowners, testified that they only performed the work on the home on weekends, while the tradesman normally worked Monday through Friday. Plaintiff testified that he first began working at the site on a Monday, that he only received directions from, and reported to his employer, nonparty Goros Construction; that he and his fellow employees were the only workers present from the day he started until two days later, when his accident occurred; and that they had assembled the scaffolding from which he fell. The Supreme Court granted defendant Biordi Construction Corp.’s (BCC) motion for summary judgment dismissing the Labor Law §§ 240(1), 241(6) and 200 and common-law negligence claims but was reversed by the first.
Labor Law § 240(1) (DRA)
The First Department held the record demonstrates that dismissal of the Labor Law § § 240(1) and 241(6) claims was not warranted because although the subject property is a single-family home subject to the exemption for “owners of one and two-family dwellings who contract for but do not direct or control the work”, that exemption does not apply to those homeowner’s agents or general contractors who have authority to control the work on behalf of the owner. The evidence here showed that BCC, and not Frank Biordi, hired plaintiff’s employer as plaintiff’s employer testified that he was hired by BCC and was paid by checks bearing BCC’s address. There was also a dumpster at the worksite with BCC’s name and such evidence, taken together, raises triable issues whether BCC was acting as an agent of the homeowners. The First Department noted the lack of evidence that BCC directed or controlled the worksite is not determinative because “direct control and supervision is not a prerequisite to incurring liability under § 240. Rather, it is the authority to supervise or coordinate the work that is essential.”
PRACTICE POINT: To be a 240(1) defendant it is not necessary that you exercise supervision, direction or control over the work being done, only that you have the authority to do so. The fact that the property was owned by the defendant and was being constructed as a single family home is overshadowed by the fact that it was the owners business who hired the contractor.
Labor Law § 200 and Common-Law Negligence (VCP)
Liability under Labor Law § 200 or for common-law negligence arises where the injury derives from the method or manner of work, and the owner/contractor directed or controlled the work, or from a dangerous condition at the worksite, of which the owner/ contractor had notice. In this case, plaintiff's claims under Labor Law § 200 and common-law negligence against BCC were dismissed because all the evidence indicated that plaintiff only received directions from, and reported to his employer, Goros Construction, and that plaintiff and his fellow Goros employees were the only workers present from the day he started until his accident two days later. Thus, there was no evidence that BCC controlled the method or manner of work nor that BCC could have known about any dangerous condition created by Goros between the day they commenced work, and the day of plaintiff's accident.
Francescon v. Gucci Am., Inc.
April 11, 2013
Appellate Division, First Department
Plaintiff was injured after he stepped off the edge of the work area to the subfloor 12 to 15 inches below. The trial court issued a split decision agreeing that plaintiff’s Labor Law § 241(6) based on violations of 12 NYCRR 23-1.7(b)(1)(i) and (ii) and 12 NYCRR 23-1.7(f) should be dismissed, but declining to dismiss the claim based on 12 NYCRR-1.7(d).
Labor Law § 241(6) (JAE)
Ultimately, the Court determined that none of the provisions alleged were applicable. Plaintiff was injured after he stepped off the edge of the work area to the subfloor, which was not considered a “hazardous opening” within the meaning of § 23-1.7(b)(1). Further, there was no basis in the record for any claim that the “[s]tairways, ramps or runways” identified in § 23-1.7(f) were required, given plaintiff’s testimony that the subfloor was only approximately 12 to 15 inches below the first floor from which he fell. Finally, plaintiff’s accident was not connected to any slippery condition within the purview of § 23-1.7(d).
Estrella v. GIT Indus., Inc.
April 16, 2013
Appellate Division, First Department
While performing repairs to a ceiling, plaintiff fell when the unsecured ladder on which he was working suddenly moved. The lower court granted plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) cause of action and denied defendant Broadway’s motion to dismissing the § 241(6) and § 200 and common law negligence claims.
Labor Law § 240(1) (DRA)
The First Department affirmed the decision to grant plaintiff partial summary judgment as he was not required to show that the ladder was defective because the record demonstrated that the unsecured ladder “suddenly moved” and Broadway failed to raise a triable issue as to whether plaintiff’s actions were the sole proximate cause of the accident.
PRACTICE POINT: Again, a shifting ladder creates 240(1) liability and that violation precludes the possibility of a sole proximate cause defense. The court points out that as the ladder moved the plaintiff has no need to prove the ladder was defective in any way.
Labor Law § 241(6) (JAE)
In affirming the lower court’s denial of Broadway’s motion for summary judgment on plaintiff’s §241(6) claim based on 12 NYCRR 23-1.21(b)(4)(ii), the court held that this provision requires all ladders to have firm footings, and is not limited to ladders that are at least 10-feet tall. Broadway’s argument that plaintiff failed to show a violation of that provision was unavailing since Broadway failed to make an affirmative showing that the ladder complied with the firm-footing requirement. Moreover, even if Broadway had met its initial burden, plaintiff raised a triable issue as to whether the lack of rubber footings constituted a violation of the Industrial Code provision, causing him to fall.
Labor Law § 200 and Common-Law Negligence (VCP)
The First Department modified the decision and ordered dismissal of the Labor Law § 200 and common law negligence claims as there was insufficient evidence that Broadway supervised and controlled plaintiff’s work. Plaintiff, an independent contractor, testified that nobody directed the manner in which he performed his work. The testimony by an employee of Broadway's agent, suggesting that Broadway's superintendent supervised plaintiff and told him what work to do, was not sufficient to raise an issue of fact.
Restrepo v. Yonkers Racing Corp., Inc.
April 16, 2013
Appellate Division, First Department
Plaintiff was allegedly injured when an access door in the floor of the soffit, or attic, where he was working opened downward, causing him to fall approximately 12 to 13 feet to the floor below. Plaintiff was removing asbestos from the pipes and did not see or become aware of the door because it was covered by plastic. He described the work area as an attic containing air conditioning, electrical cables and pipes above the 1st floor of the building. He gained access to the attic, not by the door that caused his accident, but by using a ladder and climbing through a hole that had been opened to that area for the purpose of the asbestos removal.
The access door plaintiff fell through was a downward opening door and was intended to be used only to gain access from the 1st floor to the pipes, valves, etc. contained in the attic. As explained by the general contractor Tishman’s VP, access doors are placed to be used to access something right above the door, e.g. a valve; one opens the door and reaches to access the valve.
Labor Law § 240(1) (DRA)
The First Department held that here, there is no genuine issue of fact as to whether it was foreseeable that the door, which was not intended for use as a floor, but instead intended only to enable one to reach up from the floor below, would fail when traversed upon by plaintiff. This is especially so where plaintiff was unaware of the door and thus, could not take any steps to avoid it. Accordingly, plaintiff was entitled to summary judgment on his Labor Law § 240(1) claim.
PRACTICE POINT: No surprise here. Plaintiff, doing remediation work in an attic, suddenly falls through a door in the floor he could not see or know was there.
Labor Law § 241(6) (JAE)
With regard to 241(6), the Court likewise did not perceive any triable issues as to whether the access door was sufficiently substantial or adequately fastened in place to guard the hazardous opening. Thus, summary judgment based on a violation of 12 NYCRR 23-1.7(b)(1)(i) was also warranted.
Abreu v. Wel-Made Enters, Inc.
April 17, 2013
Appellate Division, Second Department
An injured person who elects to received Workers’ Comp benefits from his/her general employer is barred from maintaining a personal injury action against his or her special employer.
“A special employee is described as one who is transferred for a limited time of whatever duration to the service of another. General employment is presumed to continue, but this presumption is overcome upon clear demonstration of surrender of control by the general employer and assumption of control by the special employer.”
The determination of special employment status is usually a question of fact and may only be made as a “matter of law where the particular, undisputed critical facts” compel that conclusion and present no triable issue of fact.” The question of who controls and directs the manner, details and ultimate result of the employee’s work is a significant point in the analysis. The exclusivity provisions extend to entities which are alter egos of the injured worker’s employer.
Here, the Second Department held that defendant failed to make a prima facie showing that plaintiff was its special employee, as it did not submit evidence that it controlled and directed the manner, details and ultimate result of his work. Defendant likewise failed to establish that it was an alter ego of plaintiff’s employer.
Labor Law § 200 and Common-Law Negligence (VCP)
The Second Department further held that defendants failed to show that it lacked notice of the allegedly defective platform and railings that plaintiff alleged caused his injury, and therefore the Supreme Court should not have granted defendants’ motion for summary judgment dismissing the Labor Law § 200 and common law negligence claims.
Konaz v. St. John’s Preparatory School
April 17, 2013
Appellate Division, Second Department
Plaintiff’s employer was under contract with defendant St. John’s to provide maintenance and cleaning services at its school. Plaintiff, a building mechanic, allegedly was injured when he fell from a ladder while attempting to replace a ballast in a malfunctioning fluorescent light fixture in the school building. He testified that he removed the fixture’s grille and changed the light bulbs. When that did not work, he looked at the end blocks but did not see anything wrong. He stated the ballast “smelled like it was burnt” and that he “was going to replace the ballast.”
While he was attempting to remove the reflector plate to expose the ballast, the ladder went out from underneath him. After he fell, he claimed that he observed the ladder laying on its side and that one of the hinges was “bowing in.” St. John’s moved for summary judgment dismissing plaintiff’s Labor Law §§ 200, 240(1) and 241(6) claims. The Supreme Court denied the motion.
Labor Law § 240(1) (DRA)
The Second Department held that the task of replacing a ballast in a fluorescent light fixture falls within the category of routine maintenance and thus, St. John’s established its prima facie entitlement to judgment as a matter of law. Plaintiff’s work involved the replacement of a worn-out component in a non-construction and non-renovation context, and did not constitute erection, demolition, repairing, altering, painting, cleaning, or pointing of a building with the meaning of Labor Law § 240(1) so as to bring him with the protective ambit of that statute.
PRACTICE POINT: Routine maintenance is not repair and ballasts, like light bulbs, burn out and require replacement. This does not qualify, at least in the second, as repair.
Labor Law § 241(6) (JAE)
For the same reason as above, since the plaintiff’s work constituted maintenance which was unrelated to construction, excavation, or demolition, his §241(6) claim failed.
Labor Law § 200 and Common-Law Negligence (VCP)
The school made a prima facie showing of entitlement to judgment as a matter of law on plaintiff’s Labor Law § 200 and common law negligence claims by demonstrating that it did not have any authority to supervise or control the performance of the plaintiff's work. Even assuming that the school owned the allegedly defective ladder used by the plaintiff, the school demonstrated that the plaintiff's employer kept the ladder in its “maintenance shop” located in the basement of the school building and that its employees used the ladder exclusively. As such, the school demonstrated that it neither created the alleged defect in the ladder nor had actual or constructive knowledge of any defect in the ladder
Vasquez v. Cohen Bros. Realty Corp.
April 23, 2013
Appellate Division, First Department
Plaintiff brought this action against defendant after her husband (Vasquez) died during the course of his employment at a building managed by defendant. Prior to his death, Vasquez, along with other members of the property’s engineering crew, was replacing ceiling tiles in the drop ceiling of the building’s loading dock. To complete the work, Vasquez and a coworker used a two-man scissor lift to reach the drop ceiling. While replacing the tiles, Vasquez saw that a fluorescent light was missing from the grid. Vasquez ask the coworker, who was operating the scissor lift, to raise it higher so he could see if the light fixture had been placed above the drop ceiling. When the lift was raised, Vasquez saw that the light fixture had been placed on an exhaust duct.
To complete his repair work on the ceiling, Vasquez stepped onto the guardrail of the lift, climbed out of the lift basket and onto the exhaust duct. From his position on the duct, he reinstalled the fluorescent light. Vasquez then attempted to replace the two ceiling tiles on the other side of the light fixture. Although he was able to replace the first tile, he had difficulty placing the second tile in the grid as it was further away from his position on the exhaust duct. Using a stick his coworker handed him, Vasquez attempted to push the tile into place. As he was doing so, he lost his balance and fell to the ground approximately 15 feet, fatally hitting his head.
Plaintiff moved for partial summary judgment on liability on the § 240(1) claim and defendant cross-moved to dismiss. She also asserted claims for negligence and violations of Labor Law §§ 200 and 241. Defendant also moved to dismiss the entire action as barred by the exclusivity of the Workers’ Comp. Law, arguing that it was Vasquez’s special employer because it hired all building employees, including Vasquez, and was also responsible for firing. The motion denied each of the motions.
Labor Law § 240(1) (DRA)
The First Department affirmed as the property owner, not defendant, paid and provided benefits to Vasquez. Moreover, defendant’s evidence failed to establish as matter of law that it “controlled and directed the manner, details and ultimate result of” Vasquez’s work and plaintiff acknowledges questions of fact exist on this issue. If the special employer issue is resolved in her favor, she is entitled to partial summary judgment on her § 240(1) claim.
An owner of its agent is liable under Labor Law § 240(1) if plaintiff was injured while “engaged in an activity covered by the statute and was exposed to an elevation-related hazard for which no safety device was provided or the device provided was inadequate.” Here, Vasquez was working from an elevated height to repair the ceiling, and defendant failed to provide him with an adequate safety device. It is undisputed that besides the lift, defendant did not supply the workers with harnesses or safety lines.
The court rejected defendant’s assertion that Vasquez was the sole proximate cause of his death. Although the building manager stated in his affidavit that months prior to the accident he told Vasquez not to stand on the guardrails of the lift or leave the lift basket while it was elevated, an instruction to avoid an unsafe practice is not a sufficient substitute for providing a worker with a safety device to allow him to complete his work safely.
PRACTICE POINT: The argument that the defendant told the plaintiff not to do an unsafe activity when there is no other appropriate safety device available to do the job has once again failed. Here simply telling the plaintiff not to leave the lift or climb onto the rails of the lift was not enough, it was necessary to provide the plaintiff with the necessary safety devices to do the task safely. The special employee argument is a good one, very fact specific and requires careful preparation for depositions to be sure to lay the necessary foundation for the motion to follow.
McLaren v. Turner Construction Company
April 24, 2013
Appellate Division, Second Department
The Supreme Court denied Turner Construction’s motion for summary judgment dismissing the complaint. The Second Department reversed and dismissed plaintiff’s action.
Although a construction manager is generally not considered a contractor responsible for the safety of the workers at a construction site . . . it may nonetheless become responsible if it has been delegated the authority and duties of a general contractor, or it functions as an agent of the owner of the premises.
“A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done where a plaintiff is injured.” Here, the Second Department held that Turner Construction established through the admission of construction documents and agreements and the deposition of the parties that it had not been delegated the authority of a general contractor and did not have supervisory control and authority over the work being done.
PRACTICE POINT: To qualify as an appropriate labor law defendant it is not necessary to actively supervise, direct or control the work, only that you have that authority. A careful review of all contracts and corresponding documents must be done to make certain that this issue is properly resolved.
Vail v. 1333 Broadway Assoc., LLC
April 25, 2013
Appellate Division, First Department
Plaintiff was injured when he fell after the six-foot baker’s scaffold upon which he was working shifted, despite the fact that he had locked the wheels. Supreme Court granted plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim, and granted third-party defendant Sherry Hill’s motion for summary judgment dismissing the third-party contractual indemnification claim.
Labor Law § 240(1) (DRA)
As the First Department noted it is undisputed that the scaffold lacked guardrails, it held that such evidence establishes that plaintiff’s injuries were proximately caused by defendants’ failure to provide proper protection against the elevation-related risk given that the scaffold was inadequate in the first instance, any failure by plaintiff to hydrate himself could not be the sole proximate cause of his injuries.
PRACTICE POINT: Shifting scaffold, like shifting ladders which cause plaintiffs to fall will always be the basis of a successful 240(1) Summary Judgment motion.
Indemnity Issues in Labor Law (SEP)
At the time of the incident, Sherry Hill was painting a premises owned by Broadway. Accordingly,
Associates pursuant to a purchase order. Importantly, the Purchase Order at issue contained terms which, if applicable, would have required Sherry to indemnify Broadway.
However, in the current instance the purchase order was not effective until after the incident involving Mr. Vail occurred. As such, without any intent of retroactivity, the indemnity clause was not applicable to the loss.
Smith v. Nestle Purina Petcare Co.
April 26, 2013
Appellate Division, Fourth Department
Plaintiff “slipped and/or tripped” and fell while working on a construction project inside a grain silo owned by Nestle. Immediately before the accident, plaintiff was standing on a ladder while vacuuming grain dust off the top of a hose rack. Plaintiff stepped off the ladder and onto both accumulated grain dust and a hose that was hanging off the rack, as a result he twisted his ankle and fell. Plaintiff brought an action against the owner, Nestle. Nestle then commenced a third-party action against plaintiff’s employer, Austin, seeking contractual indemnity.
Nestle moved for summary judgment on its indemnity and for summary judgment dismissing plaintiff’s complaint. Austin cross-moved for summary judgment dismissing plaintiff’s Labor Law §§ 240(1) and 241(6) claims and for summary judgment determining that Nestle was not entitled to contractual indemnification. The Supreme Court denied the motions and cross-motion.
Labor Law § 240(1) (DRA)
The Fourth Department held the Supreme Court erred in denying those parts of Nestle’s motion and Austin’s cross-motion for summary judgment dismissing plaintiff’s § 240(1) claim as “plaintiff’s injury resulted from a separate hazard wholly unrelated to the danger that brought about the need for the ladder in the first instance – an unnoticed or concealed object on the floor.”
PRACTICE POINT: No surprise in this decision. Here the plaintiff was already off the ladder and on the ground when he stepped on a hose and twisted his ankle. The injury was not gravity related and not related to a hazard the ladder or any other safety device of that type could prevent.
Labor Law § 241(6) (JAE)
The Court affirmed the denial of Nestle and Austin’s motion and cross motion seeking dismissal of plaintiff’s Labor Law § 241 (6) insofar as it was based on an alleged violation of 12 NYCRR 23-1.7 (e) (2). That regulation provides in relevant part that “[t]he parts of floors . . . where persons work or pass shall be kept free . . . from scattered tools and materials . . . insofar as may be consistent with the work being performed.” The Court’s finding for this section was focused on the hose as opposed to the dust. Specifically, it found that although 23-1.7(e)(2) “was applicable because the object [i.e., the hose,] over which plaintiff tripped was not an integral part of the work he was performing”, on this record there was an issue of fact whether the hose constituted a scattered tool that was a tripping hazard within the meaning of 23-1.7 (e) (2).
Interestingly, the court noted that contrary to the contentions of Nestle and Austin, plaintiff was permitted to rely on this regulation despite the fact that it was raised for the first time in opposition to the motion and cross motion and was not set forth in the complaint or bill of particulars. This was because plaintiff's reliance on this provision raised no new factual allegations or theories of liability and resulted in no discernible prejudice.
The Court went on to find that the lower court erred in denying those parts of the motion and cross motion seeking dismissal of the action upon an alleged violation of 12 NYCRR 23-1.7 (d). This regulation addresses “[i]ce, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing.” The regulation was not applicable to these facts because the grain dust on which plaintiff slipped was the very condition he was charged with removing and thus was an integral part of the task plaintiff was performing.
Take Away: When a plaintiff trips and falls on an object or substance, it is always worth evaluating whether the object or substance was an integral part of the task plaintiff was performing.
Labor Law § 200 and Common-Law Negligence (VCP)
The Fourth Department upheld the denial of summary judgment to Nestle on plaintiff's Labor Law § 200 and common-law negligence claims. Because the accident was allegedly caused by a defective condition on the premises, plaintiff was not required to establish that Nestle had supervisory control over the work being performed. Rather, liability rests upon whether Nestle created or had notice of the alleged defect, and Nestle failed to show that it did not create the dangerous condition or that it lacked control over the premises and lacked actual or constructive notice of the dangerous condition.
LABOR LAW § 241(6) REGULATIONS; SPECIFIC OR GENERAL (MAS)
Regulation § 23–1.23 concerns the construction of earth ramps and runways, and is sufficiently specific to support a § 241(6) cause of action (D’Elia v City of New York, 81 AD3d 682, 916 NYS2d 196 [2d Dept. 2011]). Regulation § 23–1.23 held inapplicable where plaintiff did not slide down a ramp or runway (Erickson v Cross Ready Mix, Inc., 75 AD3d 524, 906 NYS2d 54 [2d Dept. 2010]); inapplicable where plaintiff slide on an embankment (Doty v Eastman Kodak Co., 229 AD2d 961, 646 NYS2d 474 [4th Dept. 1996]). A question of fact existed as to whether § 23–1.23 applied where plaintiff injured when he fell while walking down the side of anchor trench (Smith v Monroe, 229 AD2d 984, 645 NYS2d 258 [4th Dept. 1996]).
Regulation § 23–1.23(a) requiring that ramps and runways must be constructed of suitable embankment material and placed in layers at most three feet in depth, held inapplicable where plaintiff was riding on the exterior step of a moving backhoe when he fell and the backhoe ran over his left foot (Scott v Westmore Fuel Co., Inc., 96 AD3d 520, 947 NYS2d 15 [1st Dept. 2012]).
Regulation § 23–1.23(b), which governs the maximum slopes of earthen ramps and runways, is sufficiently specific to support a § 241(6) cause of action (Waszak v State, 275 AD2d 916, 713 NYS2d 397 [4th Dept. 2000]).
Regulation § 23–1.24 requires roofing brackets where the roof slope is steeper than one in four inches, is sufficiently specific to support a § 241(6) cause of action (Rudolph v Hofstra Univ., 225 AD2d 680, 640 NYS2d 126 [2d Dept. 1996]). Regulation § 23–1.24 held applicable where plaintiff allegedly slipped and fell from the roof while installing a satellite dish (Mergenhagen v ‘Dish Network Service LLC, 64 AD3d 1170, 883 NYS2d 405 [4th Dept. 2009]). Regulation § 23–1.24 held inapplicable where plaintiff’s accident did not involve a fall from roof (Bennion v Goodyear, supra).
Regulation § 23–1.24(a)(1)(i), requiring that roofing brackets be used “whenever work is to be performed on any roof having a slope steeper than one in four inches unless crawling boards or approved safety belts are used”, is sufficiently specific to support a Labor Law § 241(6) claim (Landon v Austin, 88 AD3d 1127, 931 NYS2d 424 [3d Dept. 2011]; Tucker v Edgewater Const. Co., Inc., 281 AD2d 865, 722 NYS2d 194 [4th Dept. 2001]). A question of fact existed as to whether § 23–1.24(a)(1)(i) was violated where “work [was] to be performed” on the roof surface from which plaintiff fell and whether the roof surface had “a slope steeper than one in four inches” (John v Klewin Bldg. Co., Inc., 94 AD3d 1502, 943 NYS2d 812 [4th Dept. 2012]).
Regulation § 23–1.24(a) and (b) governing the use of safety devices on roofs having slopes steeper than one inch in four inches requires plaintiff to submit competent proof establishing slope of roof from which fell to obtain summary judgment (Amirr v Calcagno Const. Co., 257 AD2d 585, 684 NYS2d 280 [2d Dept. 1999]). Regulation § 23–1.24(a) and (b) held inapplicable where plaintiff submitted no evidence that the pitch of the roof exceeded one in four inches (D’Acunti v New York City School Const. Authority, 300 AD2d 107, 751 NYS2d 459 [1st Dept. 2002]).
Regulation § 23–1.24(b) provides that for “[h]igh and steep roofs” more than 20 feet above the ground, whose slope “is greater than one in four, a ground-supported scaffold ... shall be provided”, and a question of fact existed whether violation of regulation was proximate cause of worker's injury incurred when he fell from roof (Perri v Gilbert-Johnson Enterprises, Ltd., 14 AD3d 681, 790 NYS2d 25 [2d Dept. 2005]).
Regulation § 23–1.24(d) requiring that closed containers or devices used for molten roofing material be equipped with certain safety features to minimize hazards “caused by blowbacks of the molten roofing material”, is sufficiently specific to support a Labor Law § 241(6) cause of action (Rudolph v Hofstra University, 225 AD2d 680, 640 NYS2d 126 [2d Dept. 1996]). Regulation § 23–1.24(d), however, does not prohibit the use of open bucket of hot tar and is therefore inapplicable to accident involving hot-tar container with no lid or cover (Castillo v Starrett City, Inc., 4 AD3d 320, 772 NYS2d 74 [2d Dept. 2004]); inapplicable where plaintiff carrying hot tar in an open bucket, even though it may be an inherently dangerous activity (Stasierowski v Conbow Corp., 258 AD2d 914, 685 NYS2d 545 [4th Dept. 1999]). An issue of fact existed as to whether regulation § 23–1.24(d) was violated where plaintiff was injured when end of flexible pipe came out of hot lugger and sprayed hot tar on plaintiff (Tallchief v Jemco Roofing, 217 AD2d 915, 629 NYS2d 603 [4th Dept. 1995]).
Regulation § 23–1.25(a)(2)(i) requiring that the control vale of any compressed gas cylinder be located at the domed end of such cylinder and protected by a suitable cap or ring guard when not in use, is sufficiently specific to support a Labor Law § 241(6) cause of action (Piazza v Frank L. Ciminelli Const. Co., Inc., supra).
Regulation § 23–1.25(d) is sufficiently specific to support a Labor Law § 241(6) cause of action to the extent it requires that all persons engaged in welding and flame-cutting be provided with appropriate protective apparel, since the appropriateness of protective apparel may be determined with reference to task involved; and applicable to the extent it requires approved eye protection suitable for the work involved where plaintiff was not provided with face shield (Brady v New York, 52 AD3d 331, 859 NYS2d 193 [1st Dept. 2008]). Regulation § 23–1.25(d) held not sufficiently specific to support a § 241(6) claim to the extent it requires that all persons engaged in welding and flame-cutting be provided with proper scaffolds were necessary (Ross v Curtis-Palmer Hydro-Elec. Co., supra); not sufficiently specific to the extent it requires that all persons engaged in welding and flame-cutting be provided with appropriate protective apparel (Winkelman v Alcan Aluminum Corp., 256 AD2d 1126, 685 NYS2d 167 [4th Dept. 1998]); inapplicable to welder’s work in replacing wooden staircase with iron one (Contrera v Gesher Realty Corp., supra).
Regulation § 23–1.25(e)(3) requiring that welders be provided with an approved fire extinguisher or fire pail filled with a fire extinguishing agent within their easy reach while welding in the vicinity of combustible materials, sets forth a concrete specification to support a Labor Law § 241(6) cause of action (Winkelman v Alcan Aluminum Corp., supra).
Regulation § 23–1.27(d) requiring that objects or structures raised to desired height by means of jacks be immediately blocked or cribbed, held inapplicable where worker struck by steel pin that fell from steel beam which had been supported by column raised by forklift (Smith v LeFrois Development, LLC, 28 AD3d 1133, 817 NYS2d 456 [4th Dept. 2006]); inapplicable to pallet jacks (Wegner v State Street Bank & Trust Co. of Connecticut Nat. Ass’n, 298 AD2d 211, 748 NYS2d 150 [1st Dept. 2002]).
Regulation § 23–1.28(a) provides that hand-propelled vehicles having damaged handles or loose parts shall not be used, is sufficiently specific to support a Labor Law § 241(6) cause of action (Brasch v Yonkers Const. Co., 298 AD2d 345, 751 NYS2d 200 [2d Dept. 2003]; Gray v Balling Const. Co., Inc., 239 AD2d 913, 659 NYS2d 630 [4th Dept. 1997]).
Regulation § 23–1.28(b) requiring “free running” wheels that are “well secured” to the frames of hand propelled vehicles, is sufficiently specific to support a Labor Law § 241(6) cause of action (Picchione v Sweet Const. Corp., 60 AD3d 510, 875 NYS2d 42 [1st Dept. 2009]; Brasch v Yonkers Const. Co., supra; Freitas v New York City Transit Authority, 249 AD2d 184, 672 NYS2d 101 [1st Dept. 1998]; Lazar v County of Ontario, 221 AD2d 916, 634 NYS2d 595 [4th Dept. 1995]).
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