Labor Law Pointers - Volume II, No. 9


Labor Law Pointers

Volume II, No. 9
Wednesday, July 3, 2013

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

From the Editor:   

Happy Fourth of July to all of our loyal readers from the entire crew here at Labor Law Pointers.  Dan Kohane, in his newsletter Coverage Pointers, always starts out with, “You have a situation.  We live for situations,” or words to that effect.  Just so you all know; I too love situations and the stranger the better.  What that means to anyone reading this newsletter is that any time you have a question about a labor law case, and I do mean any time, you can call, email or text a question and we will get you a response quickly.  By the way, if you do not subscribe to Coverage Pointers you should; just drop me an email or you can email Dan Kohane directly to request being added to the distribution list.

I know it is a shock that this month’s edition is coming out so early in the day, but tomorrow is the Fourth and we all pulled together and got it out several hours before our normal around midnight send time.  If you are reading this on the afternoon of the third, for the love of God stop, find your family or friends and go have fun.  If you are reading this on the fifth, hope you had fun.  Please recall that we now have offices in Buffalo, Albany and the metro NYC area and are handling labor law cases in any and all venues across the state.

Each and every month we get calls and emails from readers far and wide with issues, strange fact patterns and the need for a quick and accurate answer.  We always provide our responses as quickly and thoroughly as possible.  Our accuracy has been damn good as well in this world of ever changing case law.  Sometimes precedent is not what it is cracked up to be.  Please, if you have a question or a “situation,” if you will, please reach out to us; we are not only willing to help but we enjoy it.  To make it easier for you at each spot in the newsletter where our names or initials appear, we have inserted a hyperlink to allow you to email us with one click.  If it is blue, it is a hyperlink.  I hope it is helpful to all of you, and I know for sure it impressed my kids that I was able to do it.  In addition, each case name is also a hyper link.  Just press Ctrl and left click and it will take you directly to the case. 

I have been including some of the questions posed each month so here are a few from this month: 

First one was a plaintiff who was run over by a piece of heavy machinery on a construction site.  The equipment was being backed up and he was run over.  The backup warning device was not operating.  We found the appropriate regulation for a 241(6) case, 12 NYCRR 23-9.5, and determined that it was a specific regulation which supported a claim under 241(6).  

Next question - window washer drops his squeegee and hits a passerby on the head.  Is it a labor law case?  This is a case where you want the building owner and not the window washing company.  Not a labor law case, as Labor Law § 240(1) provides protection only to those “persons so employed.”  Thus, it is not a labor law case and the owner is not a proper defendant; however, there would be a great negligence case against the guy who dropped his squeegee.

In our last edition, I mentioned that we would consider doing a webinar for anyone who wanted to sit in and the responses have been very good.  Steve Peiper and I will be doing a joint webinar addressing labor law and indemnification issues and everyone is invited to attend.  With so many people on vacation over the summer we are setting a September date and will provide that date in the August newsletter.  I hope many of you can attend.  We also take that show on the road, so if anyone has a group that is all in one place at the same time we would be happy to come on out and provide in-person training.  We have several presentations available and are currently working on a new one which analyzes all labor law case from the Court of Appeals over the past 20 years and a few older ones which shape the current status of the law.  This is more of an undertaking than we originally thought and trials do get in the way, but that will be done by mid-August.

In this edition, you will find that the Fourth Department was very busy this month with five cases.  There are also an unusually large number of cases regarding the single or double family homeowner exemption.  Hope you enjoy the issue and please feel free to contact us at any time with a question.

Enjoy the Fourth.

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:


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.


LaMorte v City of New York
June 6, 2013
Appellate Division, First Department

                 Plaintiff was injured while riding a bicycle in Manhattan on May 26, 2002.  Second third-party defendant Roadway Contracting (Roadway) performed road work in that spot pursuant to a contract with second third-party plaintiff Consolidated Edison Co. (Con Ed).  The contract consisted of a term purchase order agreement (the purchase order) and a document entitled "Standard Terms and Conditions of Construction Contracts" (the standard terms) wherein Roadway agreed to install underground conduits and equipment boxes as needed for two years. 

                 The standard terms contained both a contractual indemnification provision and an insurance procurement provision. The indemnification provision required Roadway to defend and indemnify Con Ed for any liability arising out of Roadway's work and to pay for Con Ed’s legal expenses associated with that work.  The insurance provision obligated Roadway to carry products/completed operations liability insurance "for at least one year after completion of performance hereunder.”

                 Plaintiffs sued Con Ed to recover damages for personal injuries.  At trial, Con Ed took the position that Roadway's work had caused the accident.  The jury returned a verdict for $660K in plaintiffs' favor, apportioning liability 40% to plaintiff, 35% to Con Ed ($231K), and 25% to Roadway ($165K).  Con Ed argued it was entitled to indemnification from Roadway because Roadway breached the contract by failing to obtain insurance naming it as an additional insured.  In opposition, Roadway took the position that assuming there was a valid contract, Roadway did not breach the insurance procurement provision because it had no obligation to maintain insurance one year after it completed the alleged injury-causing road work.  Moreover, Con Ed ordered them off the worksite on January 26, 2001 as their work caused a water leak and Roadway performed no further work.

Indemnity Issues in Labor Law (SEP)
Despite the fact that the jury had apportioned 35% of the fault against Con Ed, it nonetheless moved for full indemnification against Roadway.  Although Con Ed recognized that GOL § 5-322.1 prohibited a party to a construction contract from being indemnified for its own negligence, Con Ed argued that it was seeking indemnification as a remedy to Roadway’s breach of contract. 

            Con Ed premised its argument on the fact that Roadway was required to provide completed operations coverage for a period of one year after its work was completed.  Such coverage was required to name Con Ed as an additional insured.  Where, as here, Con Ed was not provided with additional insured status, it argued that it was entitled to indemnity as a contractual remedy due to Roadway’s failure to procure and maintain proper coverage.

            Roadway opposed the motion by arguing, principally, that its obligations to procure insurance ceased when it was removed from the jobsite.  As that date was more than one year prior to the incident giving rise to the current lawsuit, it followed that Roadway owed no obligation to Con Ed on the date of loss.

            The appellate division agreed by acknowledging that Roadway performed no work at the project site for more than a year prior to the incident.  Where Roadway’s work ceased more than a year prior, its contractual obligation to provide completed operations coverage (and name Con Ed as an additional insured thereunder) had expired. 

            In so holding, the Court rejected Con Ed’s argument that the obligation ran until the completion of the project.  On the contrary, per the language of the agreement at issue, the one year time limit began to run immediately after Roadway completed the “performance” of its work.

            Peiper’s Point- We are troubled by this one.  When boiled down, this is nothing more than a “failure to procure” case.  Is it no longer the rule that the measure of damages is limited to Con Ed’s premium costs in maintaining its own coverage? 

            We trust those cases continue to prevail, but would have liked to have seen a reference to it in the decision to make us feel better.  Perhaps Con Ed didn’t have coverage – or perhaps, the Court didn’t think it was necessary to include that in its opinion.  Either way, it gives the impression that a party can obtain 100% indemnity (despite its own negligence) through a failure to procure insurance claim.  An interesting thought to contemplate.


Melski v Fitzpatrick & Weller, Inc.
June 7, 2013
Appellate Division, Fourth Department

            Plaintiff’s decedent fell from a ladder and sustained injuries while working on a boiler at a hardwood lumber plant operated by defendant.  Plaintiff alleged violations of Labor Law §§ 240(1), 200 and 241(6), as well as common-law negligence.  The trial court granted defendant and third-party defendant’s motions for summary judgment dismissing the complaint.
Labor Law § 240(1) (DRA)
Plaintiff argues on appeal that decedent was engaged in a protected activity at the time he was injured.  The Appellate Court rejected that contention because defendants established that decedent was not performing an enumerated protected activity, but rather was engaged in routine maintenance in a non-construction, non-renovation context.  Specifically, defendants demonstrated that decedent’s work involved replacing components required in the course of normal wear and tear. 
PRACTICE POINT:  Careful questioning during depositions is critical in establishing the nature of the task undertaken by the plaintiff at the time of the injury.  The Court of Appeals’ Esposito case cited in the decision is illustrative of the distinction between what constitutes repair, a covered activity, and routine maintenance, a non-covered activity.  The key is that the replacement of components due to normal wear and tear is not considered repair work.
Labor Law § 241(6) (JAE)
With respect to § 241(6), defendants established that decedent did not perform his work in the context of construction, demolition or excavation.  Thus, the Appellate Court affirmed dismissal of plaintiff’s § 241(6) claim.


Thompson v Sithe/Independence, LLC
June 7, 2013
Appellate Division, Fourth Department

            Defendants contracted with plaintiff's employer to replace a diffuser in defendants' power plant.  Plaintiff, who was provided with a mechanical lift and a safety harness, did not believe he could reach the appropriate location with a mechanical lift to attach a clamp to the diffuser.  He removed his harness and climbed out of the lift, whereupon he fell 10 to 15 feet to the ground while working at premises owned by defendants.  Drop lines were usually above the work area to which plaintiff could attach his safety harness, but they had been removed in the area in which plaintiff was working.  
Plaintiff moved for judgment on his Labor Law § 240(1) claim and defendants cross-moved to dismiss the Complaint.  The trial court denied plaintiff’s motion for partial summary judgment, denied defendants’ dismissal of the § 241(6) claim, granted defendants’ cross-motion on the § 200 claim, and sua sponte dismissed defendants’ affirmative defenses that plaintiff was a recalcitrant worker and that his conduct was the sole proximate cause of his injuries.
Labor Law § 240(1) (DRA)
            The Appellate Court held that neither party was entitled to summary judgment concerning whether plaintiff was recalcitrant worker or whether his conduct was the sole proximate cause because there is conflicting evidence regarding the availability of appropriate safety equipment.  Further, the Appellate Court affirmed denial of defendants’ cross-motion to dismiss as the record contains conflicting evidence whether plaintiff could safely perform his work with the assistance of the mechanical lift and safety harness and whether a drop line should have been available for plaintiff’s use. 
Although plaintiff concedes he was instructed to use a harness, the Appellate Court held defendants did not establish a recalcitrant worker defense merely by showing that plaintiff was instructed to avoid an unsafe practice.  Accordingly, as plaintiff was not entitled to summary judgment on those issues, the trial court erred in sua sponte dismissing defendants’ defenses.  Lastly, the Appellate Court found a triable issue of fact whether the work plaintiff was engaged in when he was injured, replacement of the diffuser, was a protected activity under the statute.
PRACTICE POINT:  Another case preventing a decision in favor of either the plaintiff or the defendant.  Recall the three aspects of the sole proximate cause defense.  First, the safety device needs to be appropriate.  Here, there exists a question of fact as to whether the mechanical lift was an appropriate device.  The next question is whether the appropriate safety device was available.  Here, there is a question of fact as to the availability of the drop lines, creating a question of fact in that regard, as well.  The third element, not discussed here, is the instruction to or understanding of the plaintiff that he was to use the safety device.
This is the type of case which calls for an expert opinion.  Had either party had an expert to discuss the appropriateness of the mechanical lift, it is likely they would have won the motion.  Of course, had both parties had an expert, the question of fact would have been the outcome.
As to the recalcitrance argument, a mere instruction to use a harness is not sufficient to create the defense.
In addition, the task the plaintiff was undertaking, replacing a diffuser, was not clearly either repair work or routine maintenance in the eyes of the court.
Labor Law § 200 and Common-Law Negligence (VCP)
Summary judgment was properly granted on defendants’ cross motion for summary judgment dismissing the Labor Law § 200 claim.  Although plaintiff contends that his injury was caused by a defective condition of the premises, his own account of the accident establishes that there was no dangerous condition on the premises which caused the accident, but rather it was caused by the manner in which his work was performed.
Labor Law § 241(6) (JAE)
The Appellate Division found 12 NYCRR 23-1.16 inapplicable and, thus, agreed with defendants that the trial court erred in granting plaintiff’s motion to amend his bill of particulars to set forth this claim.  Section 23-1.16, which sets forth standards for safety belts, harnesses, tail lines and lifelines, does not specify when such safety devices are required.


Westgate v Broderick
June 7, 2013
Appellate Division, Fourth Department

            Plaintiff allegedly was injured when a ladder jack scaffold collapsed from under him while constructing a house for contractor Hogan III (decedent) and defendant Karen Hogan (Hogan).  Plaintiff sued for violations of Labor Law §§ 240(1) and 241(6).  The trial court granted defendants judgment dismissing the Complaint based on the homeowners’ exemption and denied plaintiff’s motion for judgment on the § 240(1) claim. 

Labor Law § 240(1) (DRA)
An "owner," for purposes of the homeowner exemption under the statute, “has been held to encompass a person who has an interest in the property where a qualifying injury occurs and is not limited to the titleholder.”  Here, defendants failed to establish that decedent and Hogan had the requisite interest in the property because they presented no evidence of a property interest with respect to decedent and their submissions concerning Hogan’s alleged interest raised an issue of fact.
The Appellate Court held that plaintiff’s fall was within the class of those protected by the statute and the record establishes that decedent was a contractor under the statute because he “had the power to enforce safety standards and choose responsible subcontractors.”  Further, the Appellate Court noted that a person’s “right to exercise control over the work denotes [the person’s] status as a contractor, regardless of whether [he or she] actually exercised that right” and defendants essentially conceded decedent had that right. 
Lastly, the Appellate Court held that the trial court properly denied that part of plaintiff's cross-motion with respect to Hogan, however, because plaintiff failed to establish that she had the requisite control and, in any event, there is an issue of fact whether she is entitled to the benefit of the homeowner exemption.
PRACTICE POINT:   The key to the exemption for the single or two family homeowners is obviously ownership.  Here, the Fourth Department makes clear that they require some type of documentary proof of ownership to enforce the exemption to the labor law.  Ironically, what the defendant was attempting to do was establish that he owned the property so that he could get the exemption instead of being held as a contractor.  Usually we are trying to establish that a party is not an owner to avoid labor law liability.  Additionally, the court reinforced the definition of a contractor as someone who “had the power to enforce safety standards and choose responsible subcontractors.”


Alvarez v Hudson Val. Realty Corp.
June 12, 2013
Appellate Division, Second Department

            Plaintiff was injured on what was alleged to be defendant’s premise.  The trial court granted defendant’s summary judgment motion to dismiss plaintiff’s Labor Law §§ 240(1), 241(6) and 200 claims as defendant demonstrated that did not own the property on which plaintiff was injured.

Labor Law § 240(1) (DRA)
The Appellate Court affirmed dismissal of the § 240(1) claim because defendant established it was an abutting property owner with no property interest in the premises upon which plaintiff was injured and it neither contracted for nor controlled the construction work on the premises.   
PRACTICE POINT:  Again, ownership of the property was the issue and, as an abutting land owner, the defendant had no liability.  I would recommend that actual documentation of the ownership of the property be obtained whenever ownership is a question.
Labor Law § 200 and Common-Law Negligence (VCP)

            The Appellate Court affirmed dismissal of the § 200 claim because defendant established it did not own, occupy, or control the premises and that it did not have the authority to supervise or control the manner in which the work was performed.


Mathews v Bank of Am.
June 13, 2013
Appellate Division, First Department

            In a case with sparse facts, it appears plaintiff’s injury involved a ladder but that she did not fall completely off the ladder.  Plaintiff was employed by EFI and was performing air testing and monitoring work at the time of the injury.  EFI contracted with defendant JVN for the specific purpose of removing asbestos, which provided that JVN "shall be under the general direction of EFI."  The JVN defendants and BOA moved for summary judgment dismissing plaintiff’s negligence and Labor Law §§ 200 and 240(1) claims.  The trial court denied the motions, and granted third-party defendant EFI’s motion to dismiss BOA’s contractual indemnification claim. 

Labor Law § 240(1) (DRA)
The Appellate Court affirmed the denial of BOA’s motion, rejecting BOA’s argument that plaintiff’s incident was not gravity related because plaintiff is only required to show that the “harm directly flowed from the application of the force of gravity to an object or person.”  However, the trial court erred in denying JVN’s motion, as JVN was not a statutory agent for imposing liability because there is no evidence that it had authority to supervise, direct or control the air testing and monitoring work.

PRACTICE POINT:  This case confirms that the plaintiff need not fall off a ladder to the ground but only that the injury needs to be caused by the application of gravity to have a valid §240(1) claim; an important fact to remember and one easily overlooked.

Labor Law § 200 and Common-Law Negligence (VCP)
Plaintiff’s Labor Law §200/Common Law Negligence claims were properly dismissed as neither BOA, nor JVN, were responsible for supervision, direction or control over the methods and manners of plaintiff’s activities.  Specifically in regards to JVN, the Court acknowledged that JVN was responsible for supervising the asbestos removal process, but it had no ability to supervise or control plaintiff or her work, which did not include the actual removal of asbestos, but involved testing the air quality. Thus, it had no authority to control the activity bringing about plaintiff's injuries.

Indemnity Issues in Labor Law (SEP)
It followed that the Court denied and dismissed plaintiff’s Labor Law § 200/Common Law Negligence claims. In so holding, the Court again reiterated that neither BOA, nor JVN, had exercised any supervision, direction or control over the methods and manners of plaintiff’s activities. As BOA and JVN were absolved of negligence, it followed that both parties were entitled to contractual indemnity against EFI (plaintiff’s employer). The fact that the indemnity clause at issue may have been in violation of General Obligations Law § 5-322.1 was irrelevant given the dismissal of negligence claims against the proposed indemnitees.


Leszczynski v Town of Neversink
June 13, 2013
Appellate Division, Third Department

            Plaintiff was standing in a trench installing sewer pipe when a frozen conglomerate of stone, around the size of a bowling ball weighing 40 to 80 pounds, fell on his head.  Plaintiff’s employer, Osterhoudt, was the general contractor hired to install a sanitary sewer extension on a project in Town of Neversink.  Osterhoudt contracted with defendant IMS to serve as its safety consultant, and who obligated to assigned an employee to be present at the project daily, make inspections, conduct safety meetings and have authority to require "immediate corrective action for imminent danger situations."  
IMS's representative was continuously at the site throughout the project, exercised his power on several occasions prior to the accident by stopping work and requiring specific precautions or actions, and was present when the accident occurred.  Osterhoudt's employees were aware that IMS’s representative had the authority to stop work and that his directions regarding safety were to be followed.
Plaintiff alleged violations of Labor Law §§ 200 and 241(6) claims against IMS, Town of Neversink (Town) and the project’s engineering firm.  The action against the engineering firm was dismissed prior to trial and a bifurcated trial was conducted in which plaintiff settled with the Town.  The jury rejected plaintiff’s § 200 claim but found IMS liable under § 241(6).

Labor Law § 241(6) (JAE)
Again, plaintiff settled his claim against the Town, so the issue in this decision was whether the safety consultant, IMS, was an agent of the owner or general contractor thereby making it an appropriate defendant under the labor law.  In considering that issue, the court examined whether, irrespective of IMS’s title, it had sufficient control over the activity that resulted in the injury.  The contract between IMS and the general contractor stated that IMS would be at the work site daily, make inspections, conduct safety meetings and have authority to require “immediate corrective action for imminent dangerous situations.”   In compliance with these terms, an IMS representative was continuously at the site throughout the project, and exercised his given power on several occasions prior to the accident by stopping work and requiring specific precautions or actions be taken.  In fact, the general contractor’s employees were aware that IMS had authority to stop work.  Thus, the Appellate Division upheld the jury’s finding that IMS was an agent of the general contractor, and liable under the labor law.
With respect to the specific violations alleged, the Appellate Division again upheld the jury’s finding that 12 NYCRR 23-9.4(h)(5) was violated noting that plaintiff was in a 8 to 10-foot trench, while a side dump loader retrieved stones to be dumped near the trench and then moved directly onto the trench by an excavator bucket.  This was proof that, in violation of the regulation (which states that “[c]arrying or swinging suspended loads over areas where persons are working or passing is prohibited), elevated buckets carrying stones were used in an area where plaintiff was working, and he was in danger of being struck by material falling from the load. 


Custer v Jordan
June 14, 2013
Appellate Division, Fourth Department

            Plaintiff allegedly was injured while he was installing siding on a single-family home.  According to plaintiff, he fell from a stepladder placed on scaffolding provided to him by defendant Jordan.  Defendant Ewing agreed to sell the property on which plaintiff was injured to Jordan, who was required to adhere to a payment plan, notify Ewing of any work contracted out regarding the property, and provide him with a certificate of insurance before any work was commenced. 

Although Jordan’s final payment was in the fall of 2008, he did not close on the sale until after the accident in November of 2009.  Defendants moved to dismiss and plaintiff cross-moved for partial judgment on the § 240(1) claim.  The trial court granted defendants’ motion and denied plaintiff’s cross-motion, holding defendant qualifies for the homeowner exemption.

Labor Law § 240(1) (DRA)
          The Appellate Court held that defendant was an “owner” under the statute because defendant retained title to the property at the time of the accident and the requirements of the contract regarding the survey and delivery of the deed were unsatisfied at that time.  According to the Fourth Department, a prerequisite to the imposition of liability upon “an out-of-possession property owner who does not contract for the injury-producing work” is “some nexus between the owner and the worker, whether by a lease agreement or grant of an easement, or other property interest.”  

            As defendant never lived in the home at issue and derived a commercial benefit from the property by earning interest on Jordan's payments under the contract, the Appellate Court held that defendant is not entitled to the benefit of the homeowner exemption.  Further, plaintiff established that he was engaged in a protected activity as his work of installing siding is an “alteration.”  Moreover, plaintiff’s evidence showed that he fell 12 feet to the ground and sustained injuries after the scaffolding that supported the ladder on which he was working shifted and caused the ladder to flip. 

            The Appellate Court rejected defendant’s contention that the accident was the result of plaintiff’s conduct rather than the equipment that he used because he failed to tie off the ladder and scaffolding prior to his fall.  Plaintiff testified he was forced to place the ladder on top of the scaffolding to perform his work, and the scaffolding Jordan provided to plaintiff subsequently proved inadequate to protect him from the elevated-related risk attendant upon that work. 

PRACTICE POINT:  Apparently not Custer’s last stand, as the trial court’s dismissal of the suit was overturned by the Fourth Department.  Once again, the principle question raised here is the ownership of the property.  Here, the documents relating to ownership were produced and examination of those documents indicated that ownership of the property had not passed to the proposed new owner.   That said, it is important to note the court also held that ownership by an out of possession landowner is not alone sufficient but that there needs to be some nexus between owner and worker.  The court also addressed the sticky question of a situation where the property has a dual purpose, some residential and some commercial.  The court held that whether the exemption is available to an owner in a particular case turns on the site and purpose of the work.


Nicometi v Vineyards of Fredonia, LLC
June 14, 2013
Appellate Division, Fourth Department

            Plaintiff alleges he fell when his stilts, set in such a way that the bottoms of his feet were between 3 and 5 feet off the floor, slipped on ice while installing insulation on a ceiling at an apartment complex.  Plaintiff and his supervisor both testified that they saw ice on the floor of the area in which plaintiff was working, and the supervisor recalled that ice covered a four by four-foot area and was not more than one-eighth of an inch thick. 

            Plaintiff moved for partial summary judgment on his Labor Law § 240(1) claim while the defendants Winter-Pfohl, The Vineyards and third-party defendant cross-moved to dismiss the Complaint.  The trial court granted plaintiff’s motion and denied the cross-motion.  

Labor Law § 240(1) (DRA)
            The Appellate Court held the “risk” related to gravity “was created by the need to elevate plaintiff to the height of the ceiling, and the stilts were the safety device provided to protect the worker from the risk inherent in having to work at a height.”  Thus, the Appellate Court affirmed judgment to plaintiff because the stilts “failed while plaintiff was installing the insulation on the ceiling – work requiring the statute’s special protections.” 
The Appellate Court agreed with defendants, however, that triable fact issues exist whether plaintiff’s actions were the sole proximate cause as defendants submitted evidence that plaintiff was directed not to work in the area where the ice was located.  “Unlike those situations in which a safety device fails for no apparent reason, thereby raising the presumption that the device did not provide proper protection within the meaning of Labor Law § 240(1), here there is a question of fact whether the injured plaintiff’s fall was from his own misuse of the safety device and whether such conduct was the sole proximate cause of his injuries.”
Justices Fahey and Whalen disagreed that there is a triable issue of fact whether plaintiff’s conduct was the sole proximate cause of the accident.  The dissent noted that although the supervisor told plaintiff “not to be in [the icy] area”, he took no measures to protect him (even though the work required plaintiff to look up and away from the floor to complete his assigned task), including not guarding the ice with caution tape, barricades or similar devices.  The dissent held that “stilts on ice” is the wrong device from which to work at an elevation and, thus, plaintiff was not furnished with a proper safety device.  Accordingly, where there is a statutory violation that proximately caused injuries, plaintiff cannot be solely to blame for it.
PRACTICE POINT:  This case can go to the Court of Appeals as a matter of right based on two dissents (here Justices Fahey and Whalen).  The central issue for the remainder of the court was whether the plaintiff misused the safety device after being directed not to work in that area where there was ice.  It is uncertain what the Court of Appeals will do with this one but I anxiously await the decision if the case is not settled.  The same court, one week earlier, held in Thompson that simply being instructed to wear and use a harness was not sufficient to create a recalcitrant worker defense, yet here found a question of fact where the plaintiff was instructed not to work in the area where the ice was located.  These cases are very much fact driven and it will be interesting to see what the Court decides.

Medina v R.M. Resources
June 19, 2013
Appellate Division, Second Department

            Plaintiff, an employee of K&G, was dispatched to work at Costco after an employee of the store encountered problems with an air compressor.  The Costco defendants owned the premise.  The Costco employee called the manufacturer of the compressor, defendant Ingersoll-Rand, who relayed the report to its local distributor, K&G.  Plaintiff allegedly was injured when he stepped through a drop ceiling and fell 12 to 15 feet to the floor below while attempting to ascertain the source of a leak.
Plaintiff sued for violations of Labor Law §§ 200, 240(1) and 241(6), and common-law negligence.  The trial court granted Ingersoll-Rand summary judgment dismissing plaintiff’s Complaint and denied, as untimely, the Costco defendants’ cross-motion.

Labor Law § 240(1) (DRA)
A party is deemed to be an agent of an owner or general contractor under the statute when it has supervisory control and authority over the work being done where a plaintiff is injured.  Here, Ingersoll-Rand established it was neither an owner or contractor nor a statutory agent under §§ 240(1) or 241(6).  
PRACTICE POINT:  To be deemed a contractor as described in the labor law, a party needs to have supervisory control and authority over the work being done where a plaintiff is injured.
Labor Law § 200 and Common-Law Negligence (VCP)
Where, as here, a claim against a defendant arises out of alleged defects or dangers in the methods or materials of the work, recovery cannot be had under § 200 or pursuant to common-law negligence principles unless it is shown that the party to be charged under that theory of liability had the authority to supervise or control the performance of the work.
Ingersoll-Rand established prima facie entitlement to judgment as a matter of law dismissing the common-law negligence and § 200 claims through the submission of evidence demonstrating that it did not have the authority to supervise or control the manner in which the injured plaintiff performed his work.


Maldonado v AMMM Props. Co.
June 26, 2013
Appellate Division, Second Department
            Plaintiff was employed to demolish an interior partition wall in a commercial building.  Plaintiff was holding a glass pane while a coworker attempted to dislodge it from the metal frame using pliers when the glass pane cracked and fell, causing plaintiff injuries.  The trial court denied plaintiff judgment on his § 240(1) claim and denied defendants cross-motion to dismiss the §§ 240(1) and 241(6) causes of action.
Labor Law § 240(1) (DRA)
To recover for a falling object, not only must plaintiff show that at the time the object fell, it was being hoisted or secured, or “required securing for the purposes of the undertaking”, plaintiff must also show the object fell “because of the absence or inadequacy of a safety device of the kind enumerated in the statute.”  Here, the glass pane was slated for demolition at the time of the accident, and defendants established, prima facie, that the glass pane was not an object that required securing for the purposes of the undertaking, that is, the demolition.  
PRACTICE POINT:  Always look at the object that fell.  Here, the object could not be secured as it was being removed as a part of the demolition.  The Court of Appeals case of Wilinski is cited by the court as the basis for the decision.  You may recall Wilinski from our November 2, 2011 issue.  While Wilinski allows for falling object cases to exist when both are at the same level, here the object which fell was not and could not be secured and, thus, the statute was not violated.
Labor Law § 241(6) (JAE)
The Appellate Division found that defendants’ cross-motion on the § 241(6) claim should have been granted.  The court found that the provisions relied upon by plaintiff, 12 NYCRR 23-3.3(b)(3) and (c), were inapplicable as the hazard arose from the plaintiff’s performance of the demolition work itself, rather than from structural instability caused by the progress of demolition. 
Take Away:  Plaintiff sought to rely on the industrial code related to demolition by hand.  Specifically, 23-3.3(b)(3) provides that “[w]alls, chimneys and other parts of any building or other structure shall not be left unguarded in such condition that such parts may fall, collapse or be weakened by wind pressure or vibration,” and 23-3.3(c) provides “[d]uring hand demolition operations, continuing inspections shall be made by designated persons as the work progresses to detect any hazards to any person resulting from weakened or deteriorated floors or walls or from loosened material...”  The dismissal of the§ 241(6) claim directly ties in with the dismissal of the § 240(1) claim.  The court declined to require that the wall/window, which was in the process of being demolition, be braced or monitored for instability.  To set forth these requirements, would be contrary to the ultimate goal of the work.  


Gallagher v Resnick
June 26, 2013
Appellate Division, Second Department
Defendant Donadic was hired by defendant Resnick to renovate his Manhattan brownstone building.  Donadic hired defendant Coffey Contracting to work on the masonry.  Coffey Contracting hired Townhouse, owned by plaintiffs, to fabricate sills, lintels, and coping stones for the project.  Plaintiff came to the worksite to take measurements in preparation for fabricating coping stones for the roof of the building.  He fell from the roof to a terrace approximately 10 to 12 feet below, and allegedly suffered traumatic brain injury, resulting in a total loss of memory of the accident. 
Plaintiff sued for violations of §§ 200, 240(1) and 241(6), as well as common-law negligence.  Plaintiff moved for partial judgment on his § 240(1) claim and defendants cross-moved to dismiss the Complaint.  The trial court determined plaintiff was not covered by §§ 240(1) and 241(6) and that Coffey Contracting was not an agent under the Labor Law.  Accordingly, the trial court denied plaintiff’s motion and dismissed the Complaint against Coffey Contracting and the §§ 240(1) and 241(6) claims against Donadic.
Labor Law § 240(1) (DRA)
Here, part of Townhouse’s job included going to the worksite and climbing to the roof of the building to take measurements in preparation for the fabrication.  Therefore, the Appellate Court held that plaintiff was performing a task ancillary to the construction work and was thus engaged in a “covered activity” within the meaning of the statute. 
The Appellate Court further held that plaintiff established its prima facie entitlement to judgment alleging that Donadic and Coffey Contracting violated § 240(1) through deposition testimonies of the owner of Coffey Contracting and an employee of Donadic, which indicated that no safety devices were present on the site for the work being performed and that this failure was a proximate cause of plaintiff’s injuries.  
Additionally, the Appellate Court held that Coffey Contracting is liable to plaintiff as a statutory agent of the owner or general contractor since it had the authority to supervise and control the particular work in which plaintiff was engaged in at the time of his injury.
PRACTICE POINT:  The court is stretching to find a way to grant this motion for the plaintiff.  To me, the argument that this task, measuring in preparation for fabrication, is not a covered activity.  Had the plaintiff actually been involved in the installation of the sills then I would agree with the decision, but to my mind, this is more in line with the Dahar decision of the Court of Appeals where plaintiff fell while cleaning a product in the course of manufacturing.  Here, the task undertaken (measuring), was a part of the manufacturing process, not the alteration of the building or structure. 
Labor Law § 200 and Common-Law Negligence (VCP)
To be held liable pursuant to Labor Law § 200 in a case such as this, where the claim arises out of the methods or means of the work, a defendant must have authority to supervise or control the work.  Here, Donadic failed to establish its prima facie entitlement to judgment as a matter of law, as there is a triable issue of fact as to whether it had the authority to supervise or control the injured plaintiff's work.


Bagley v Moffett
June 27, 2013
Appellate Division, Third Department

            Defendants, a mother and daughter, purchased real property in Greene County.  The property, a single-family residence, which defendants, who live in Bronx County, intended to use “as a vacation and seasonal home.”  Four years later, defendants began operating a bed and breakfast on the property with six guest rooms available for rent for certain periods throughout the year.
Defendants hired Holdridge Electric to remove the existing electric meter and install a new one on the side of the defendants’ house.  Plaintiff, an employee of Holdridge, and another employee went to defendants’ house to install the new electrical service.  Part of that work required plaintiff to ascend a ladder to disconnect the old service cable attached to the utility pole on defendants’ property. 
As plaintiff cut the last remaining wire, the pole snapped at its base, causing plaintiff to fall to the ground and sustain various injuries.  Plaintiff sued for violations of Labor Law §§ 200, 240(1) and 241(6), and common-law negligence.  The trial court granted defendants’ motion to dismiss the Complaint. 
Labor Law § 240(1) (DRA)
Initially, we note that the homeowners’ exemption “is not available to an owner who uses or intends to use [the] dwelling only for commercial purposes”, but where “it is established that the property has both a residential and a commercial use, “the availability of the exemption [then] depends upon the site and purpose of the work performed.”  Here, defendants failed to sustain their burden as their affidavits were silent as to whether defendants intended or did continue to use the property as their residence after they began operating a bed and breakfast at the premises. 
Even though defendants claimed they “spent long weekends and the summer months at the home” following its purchase, it is not clear at all that defendants’ submissions that this practice continued – other than to carry out the property’s commercial use – after they began operating the bed and breakfast.  Accordingly, the Appellate Court held defendants failed to establish that the homeowners’ exemption applied as a matter of law.
PRACTICE POINT:  The most important point to be gleaned from this case is that you need to know the most current status of the law and know the facts of the case to provide the best opportunity and defense for your client.  Again, as above in Custer, the court outlined the ability to have a dual purpose home and continue to utilize the single and double homeowner exception.


Flynn v 835 6th Ave. Master L.P.
June 27, 2013
Appellate Division, First Department

            Plaintiff allegedly fell as a result of stacked rebar stored in an unstable manner.  The trial court granted defendants’ summary judgment dismissing plaintiff’s § 241(6) claim and denied defendants’ judgment on their contractual indemnification claims against third-party defendants Century-Maxim and Spieler. 
Labor Law § 241(6) (JAE)
The Appellate Division found that the trial court properly permitted the amendment of plaintiff’s bill of particular to assert violations of 12 NYCRR 23-1.7(e)(2) and 23-2.1(a)(1).  No prejudice accrued as the amendment did not entail new factual allegations or theories of liability. 
Notwithstanding, the court found that plaintiff’s 241(6) claim should have been dismissed.  Plaintiff’s testimony showed that the rebar that allegedly caused him to fall was in the process of being installed and thus integral to ongoing work defeating his claim of a violation of 12 NYCRR 23-1.7(e)(2).  Further, as plaintiff’s testimony concerning the condition of the stacked rebar was vague and inconsistent, the assertion that the rebar was being stored in an unstable manner in violation of 12 NYCRR 23-2.1(a)(1) was mere speculation. 
Take Away:  23-1.7(e)(2) requires that “[t]he parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed.”  Where the object involved in plaintiff's accident is in the process of being installed, the presence of the object is deemed “consistent with” the work being done and therefore not “scattered” within the meaning of the provision. 
23-2.1(a)(1) requires that “[a]ll building materials shall be stored in a safe and orderly manner. Material piles shall be stable under all conditions and so located that they do not obstruct any passageway, walkway, stairway or other thoroughfare.”  Here, due to plaintiff’s uncertainty as to the stability of the rebar, the court could not find that this provision had been violated.  Likely, there was other testimony indicating that the pile was in fact sturdy. 
Indemnity Issues in Labor Law (SEP)
On appeal, defendants argued that they were, in fact, entitled to contractual indemnity from Century and Spieler.  Initially, the parties established that they did not supervise, direct or control the plaintiff’s work.
Thus, they were free from any negligence.  Moreover, because the contract broadly applied to any “act or omission” the Appellate Division ruled that there was no obligation for defendants to establish actual negligence against Century or Spieler to trigger the indemnity provision.
Peiper’s PointIt has been argued that “act or omission” language implies the existence of a “negligence trigger.”  Here, however, the Court refuses to read any additional obligations into the indemnity clause.  Remember, indemnification provisions must be strictly construed.  If you wish to have a negligence trigger, draft the contract to apply to “negligent acts or omissions.”


Edwards v W.K. Nursing Home Corp.
June 27, 2013
Appellate Division, First Department

            Plaintiff was allegedly injured when a co-worker assisting him in manually lowering heavy cabinetry from the back of a delivery truck, lost his grip on a furniture piece, causing plaintiff to absorb the full weight of the cabinet and fall to the ground.  Plaintiff testified that his coworker lost his grip and was caused to fall when he stepped backward from the street, onto a portion of the curb and sidewalk of defendants’ premise.

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

            The defendants established their entitlement to judgment as a matter of law by submitting evidence indicating that plaintiff was injured due to an alleged defect in a curb; that the alleged defect was not clearly identified since plaintiff never testified that he observed the spot where his co-worker lost his footing; and that the cause of plaintiff's injury was grounded in speculation.
In opposition, the plaintiff raised a triable issue as to the common-law negligence claim. A photograph marked by plaintiff as the location where his co-worker stumbled, taken together with plaintiff's testimony regarding where he saw the co-worker step up onto the sidewalk and that the defective condition spanned from the curb over to the immediate adjoining sidewalk, raised a triable issue as to where the co-worker was caused to fall. While defendants, as landowners, would not have a duty to maintain the curb, they would have a duty to maintain the abutting sidewalk.
The court also declined to dismiss the Labor Law § 200 claim, finding that the record presents questions as to whether defendants had constructive notice of the alleged defective condition in front of its premises where deliveries of renovation materials were made.


           Regulation § 23–2.2(a) sets forth methods by which forms, shores and re-shores used in concrete work must be made structurally safe, i.e., by requiring them to “be properly braced or tied together so as to maintain position and shape” is sufficiently specific to support a § 241(6) cause of action (Corsaro v Mt. Calvary Cemetery, 227 AD2d 957, 643 NYS2d 853 [4th Dept. 1996]).  Regulation § 23–2.2(a) applicable where back wall of form being constructed for use in fabrication of concrete wall at construction site fell on carpenter, injuring his hand, established that form did not maintain its upright position and could not have ultimately maintained its shape and thus, was not “properly braced” (Morris v Pavarini Constr., 9 NY3d 47, 842 NYS2d 759 [2007]).

Regulation § 23–2.2(a) inapplicable when the forms are being stored, and only applies during actual concrete work (Mueller v PSEG Power New York, Inc., 83 AD3d 1274, 922 NYS2d 588 [3d Dept. 2011]); inapplicable where material that caused plaintiff to fall not being stored but was in use and area where accident occurred not a “passageway, walkway, stairway or other thoroughfare” (Cody v State, 82 AD3d 925, 919 NYS2d 55 [2d Dept. 2011]); inapplicable where the hazard was a completed wall constructed from concrete blocks (Favia v Weatherby Const. Corp., 26 AD3d 165, 808 NYS2d 675 [1st Dept. 2006]).

           Regulation § 23–2.2(b) requiring designated persons continuously inspect the stability of all forms, shores and re-shores, help inapplicable where plaintiff’s injury not caused by unstable form, shore or bracing during placing of concrete (Gielow v Rosa Coplon Home, 251 AD2d 970, 674 NYS2d 551 [4th Dept. 1998]). 

           Regulation § 23–2.3 sets forth concrete specifications concerning the hoisting of structural steel components and is thus sufficiently specific to support a § 241(6) cause of action (Young v Buffalo Color Corp., 255 AD2d 920, 680 NYS2d 385 [4th Dept. 1998).

           Regulation § 23–2.3(a)(1) providing that during final placing of structural steel members load shall not be released from hoist ropes until securely fastened in place, is sufficiently specific to support a § 241(6) cause of action (Fair v 431 Fifth Ave. Associates, 249 AD2d 262, 670 NYS2d 359 [2d Dept. 1998]), but does not require that hoisting ropes be used for placing structural steel members, and applies only when hoisting ropes have actually been used for that purpose (Hasty v Solvay Mill Ltd. Partnership, supra). 

           Regulation § 23–2.23(a)(1) held inapplicable where plaintiff struck by catwalk and not engaged in placement of structural steel members at time of his accident (Timmons v Barrett Pacing Materials, Inc., 83 AD3d 1473920 NYS2d 545 [4th Dept. 2011]); inapplicable where worker struck by drift pin after column supporting steel beam was raised by forklift (Smith v LeFrois Development, LLC, 28 AD3d 1133, 817 NYS2d 456 [4th Dept. 2006]).

           Regulation § 23–2.3(a)(3) and (b) involving placing of load “on open web steel joints” or “[h]oling or cutting of structural steel members”, held inapplicable where 2,400–pound steel plate plaintiff had welded into place fell on him, since work did not involve placing of load “on open web steel joists” or “[h]oling or cutting of structural steel members” (Letts v Globe Metallurgical, Inc., 89 AD3d 1523, 933 NYS2d 156 [4th Dept. 2011]).

           Regulation § 23–2.3(c) requiring the use of tag lines “while steel panels or structural steel members are being hoisted to prevent uncontrolled movement”, held inapplicable where plaintiff and coworkers were pushing steel beam over another beam on 15-foot dirt mound and beam being pushed slid down onto plaintiff (Cruz v Neil Hospitality, LLC, 50 AD3d 619855 NYS2d 219 [2d Dept. 2008]); inapplicable where accident caused by improper rigging of steel plate for hoisting, not by malfunction of crane or by uncontrolled movement of steel plate (Puckett v County of Erie, 262 AD2d 964693 NYS2d 78 [4th Dept. 1999]).

           Regulation § 23–2.3(d) providing that “[w]here exterior metal lintels are erected in steel or concrete frame buildings or other structures after the permanent floors have been installed, a suitable scaffold constructed and installed … shall be provided and used unless each person engaged in the work of erecting such lintels is provided with and wears an approved safety belt or harness”, held inapplicable where plaintiff allegedly injured while drilling hole into cement wall from ladder during construction of a church when power tool he was using got stuck in wall and twisted, causing his arm to twist but did not fall from ladder (Claviho v Universal Baptist Church, 76 AD3d 990, 907 NYS2d 51 [2d Dept. 2010)].

           Regulation § 23–2.4(a) and (b) governing the installation of permanent and temporary flooring in skeleton steel construction in tiered buildings, held inapplicable to project utilizing poured concrete construction (Giordano v Forest City Ratner Companies, 43 AD3d 1106, 842 NYS2d 552 [2d Dept. 2007]); inapplicable because plaintiff not engaged in construction of skeleton steel building (Bennion v Goodyear Tire & Rubber Co., supra).

           Regulation § 23–2.4(b) deals with temporary flooring and skeleton steel construction in tiered buildings, held inapplicable where plaintiff injured while walking on rebar mat suspended over the opening (Gottstine v Dunlop Tire Corp., supra).

           Regulation § 23–2.4(b)(1) requiring all hazardous openings to be covered and temporary flooring to be secured against movement, is sufficiently specific to support a § 241(6) cause of action (O’Connor v Lincoln Metrocenter Partners, L.P., supra). 

            Regulation § 23–2.4(c) establishes standards for single wood flooring, double wood flooring and bar joist construction, held inapplicable to projects utilizing poured concrete construction (Giordano v Forest City Ratner Companies, supra).


            Regulation § 23–2.5(a) establishes safety standards for shafts other than elevator shafts, and held applicable where worker removing debris from bottom of old elevator shaft being used as chute injured by piece of wood that fell from higher floor (Parrales v Wonder Works Construction Corp., supra).

           Regulation § 23–2.5(a)(1) held inapplicable where plaintiff injured while installing micro-duct in a dumbwaiter shaft because compliance with that provision was not feasible in light of the work performed (McLean v 405 Webster Ave. Associates, 98 AD3d 1090, 951 NYS2d 185 [2d Dept. 2012]).

           Regulation § 23–2.5(b) dealing with protection of persons in shafts, held inapplicable where plaintiff, who was exiting a temporary personnel lift, was struck by piece of guide rail that was part of a hoisting mechanism, which had broken off and fell over 200 feet to where it struck plaintiff (Wade v Bovis Lend Lease LMB, Inc., 102 AD3d 476958 NYS2d 344 [1st Dept. 2013]).

           Regulation § 23–2.5(b)(3) requiring a solid or wire mesh partition be provided where necessary to prevent persons installing, repairing or replacing an elevator from contacting adjacent operable elevators or counterweights, does not mandate that partition be placed in any particular location (Franco v Jay Cee of N.Y. Corp., 36 AD3d 445, 827 NYS2d 143 [1st Dept. 2007]).

           Regulation § 23–2.5(b)(4) requiring persons working at intermediate levels between stories in elevator shafts be provided with overhead protection from falling objects or material, at least 27 inches in width and shall cover area where persons are working, held inapplicable where elevator, sent into descent by plaintiff, not a “falling object” (Nevins v Essex Owners Corp., 276 AD2d 315, 714 NYS2d 38 [1st Dept. 2007]).

           Regulation § 23–2.6 deals with the construction of exterior walls and prescribes standards for when catch platforms are required, held inapplicable in Maldonado v Townsend Ave. Enterprises, supra.  However, triable issue of fact as to whether absence of “catch platform” required was proximate cause of plaintiff’s injury when another laborer tossed bag of construction debris from roof of building onto his head (Fried v Always Green, LLC, 77 AD3d 788, 910 NYS2d 452 [2d Dept. 2010]).

           Regulation § 23–3.1 provides that “[a]ny method of demolition of any building or other structure not named or described in this Subpart shall not be used unless granted a special approval”, insufficient to support a § 241(6) cause of action (Jackson v Williamsville Cent. Sch. Dist., 229 AD2d 985, 645 NYS2d 202 [4th Dept. 1996]).





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