Labor Law Pointers - Volume III, No. 1

From the Editor:   As my friend and partner Dan Kohane says at the opening of his newsletter Coverage Pointers, “have a situation, we love situations”, note that we at Labor Law Pointers love situations too, the more twisted and complex the better.  I love the emails and calls that all seem to start with “do you have a few minutes, you are going to love this one”.  I have often never meet or even spoken to the individual at the other end of the phone or email, but when we are done and have come to a conclusion about the two initial big questions, is it a labor law case and if it is can I pass it along, I always feel as if I have a new friend.  As always I encourage all of you to call or email with any issues or questions you may have and I will be happy to discuss it with you. 

Those of us who toil day after day in the labor law arena develop a deep interest in the area, one of almost unhealthy proportion in my case, which can only be sated by a steady diet of fact patterns to analyze and discuss.  I am very lucky to work with attorneys who are not only smart and hardworking, but who are constantly willing to discuss strategy in the defense of these matters.  It is this close collaboration among attorneys with different focuses in their practice which we have found allows us to obtain the best results for our clients and carriers.  Acknowledging that there are two separate and distinct areas to be addressed, defending the labor law case itself and analyzing the coverage and contractual situation to share or transfer the risk, is the first step we believe in providing a complete and total defense to the clients.  It is the ability to work both areas of the defense in tandem, understanding the close interrelation of the factors, which provides the optimum outcome.

For those of you in the NYC area I will be speaking on November 15th at the NYSBA CLE program: “Contract Formation and Litigation in Construction & Surety Law” which will be held in NYC on Friday, November 15, 2013.  The program will be held at the Concierge Conference Center in Manhattan.  My topic is Analyzing and Defending Labor Law 240, 241 and 200 Cases.  If there are any readers there, and I know of several who have told me they will be there, stop by and say hello.  It is always fun to put a face to a voice and name.

Our training opportunities are continuing to develop. We are just putting the final touches on a large project we have been working on for quite a while.  We have reviewed and analyzed every labor law case to come out of the Court of Appeals for the past 20 years.  We are now putting together a PowerPoint presentation and will be offering a webinar in the near future for any and all labor law junkies with our take on the current start of the law in this area, and a brief understanding of how it has developed to this point.  This webinar will be held just after the New Year but a date has not yet been scheduled.

Speaking of the future of the labor law I have attached an article written by Ray Green, the retired General Attorney of the State Insurance Fund, who addresses the interplay between section 240(1) and its CPLR 1411 and the conflict in applying culpable conduct of the plaintiff to the equation.  This is a very well written article published in the New York Law Journal which I recommend to all who practice in this area.  For those of us who each year hear the rumblings that 240(1) is going to be changed to add culpable conduct of the plaintiff  here is an article which takes a historical view of where we are today, how we got here and possibilities for where we may be headed.

After several months of slim pickings we once again have a wealth of cases to write about this month so without further ado, here is the November edition of Labor Law Pointers.

David

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

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

 

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

 

Saint v Syracuse Supply Co.
October 4, 2013
Appellate Division, Fourth Department

Plaintiff commenced suit alleging violations of Labor Law §§ 240(1), 241(6), 200 and common-law negligence after he fell from an elevated billboard structure during the course of changing the advertisement sign.  Defendant moved to dismiss the complaint, arguing that applying a new advertisement to the face of a billboard does not constitute the “altering” under the statute.  The trial court denied the motion.  Plaintiffs’ conceded on appeal that they had no viable claim under § 200 or common-law negligence.

 

Labor Law § 240(1) (DRA)

The Fourth Department agreed with defendant in that applying a new advertisement to the face of a billboard does not constitute the “altering” of a building or structure for purposes of § 240(1) because that activity is “more akin to cosmetic maintenance or decorative modification.”  Thus, the Fourth Department held plaintiff’s activity is not an activity protected under the statute.

PRACTICE POINT:   This is a situation which you just need to remember, changing a billboard is not a protected activity.  Ironically, if the plaintiff had been painting the billboard to allow the easier application of the actual sign it would have likely been a protected activity.

Labor Law § 241(6) (JAE)

The Fourth Department also agreed with defendant that because plaintiff was not engaged in construction work at the time of the accident, Labor Law § 241(6) does not apply to this case.

 

Burke v County of Erie
October 4, 2013
Appellate Division, Fourth Department

In this Labor Law action, plaintiff’s counsel served a nonparty witness subpoena on the only eye witness to the accident.  The nonparty witness had commenced a separate Labor Law action arising from a different construction site accident but retained the same plaintiff’s counsel.  Plaintiff’s counsel asked the nonparty witness questions about plaintiff’s accident, and then defense counsel asked questions that established that plaintiff and the nonparty witness were both carpenters in the same union, both had pending lawsuits involving the same employer, and both retained the same plaintiff’s counsel.

When defense counsel asked if plaintiff was going to be a witness in the nonparty witness’s case, plaintiff’s counsel objected and directed the nonparty witness not to answer.  Plaintiff’s counsel further objected and directed the nonparty witness not answer when defense counsel asked the nonparty witness whether plaintiff’s counsel was representing him in connection with this deposition.  The deposition was thereafter discontinued.

Defendant moved for an Order compelling a second deposition of the nonparty witness and prohibiting plaintiff’s counsel from interfering with that deposition.  The trial court denied the motion.  The Fourth Department reversed and granted defense counsel a second deposition.  The Fourth Department held that the questions asked by defense counsel were relevant with respect to the nonparty witness’s bias or motive.  Thus, the questions should have been “freely permitted and answered.” 

PRACTICE POINT:  Not to mention that when a non-party witness is being deposed that none of the attorneys for the parties have the right or ability to direct the witness not to answer the question posed.  That point is slightly muddied here as the plaintiff and non-party witness were both being represented by the same attorney albeit in different cases.  The issue is not specific to labor law cases but was interesting enough that I decided to include it.

 

Goreczny v 16 Ct. St. Owner LLC
October 8, 2013
Appellate Division, First Department

Plaintiff was allegedly injured when the unsecured ladder upon which he was working on moved, causing him to fall.  Plaintiff commenced suit claiming violations of Labor Law § 240(1) and § 241(6).  The trial court granted plaintiff’s motion for summary judgment on his § 240(1) claim and denied defendant’s motion to dismiss the § 240(1) and § 241(6) claims.

Labor Law § 240(1) (DRA)

The First Department affirmed as plaintiff’s deposition testimony established a prima facie showing of liability under the statute.  The First Department held “[t]hat plaintiff might have chosen to use the wrong type of ladder is immaterial since a worker’s comparative negligence is irrelevant to a Labor Law § 240(1) claim.” 

The First Department was also unpersuaded by defendant’s argument that plaintiff’s motion should have been denied because he was the only witness to the accident.  According to the First Department, the fact that a plaintiff is the only witness does not bar summary judgment where the testimony regarding “the manner in which the accident occurred is neither inconsistent with nor contradicted by his own account provided elsewhere or other evidence.”

PRACTICE POINT:  The days are long gone where a Summary Judgment motion is denied simply because the accident was un-witnessed unless there is some inconsistence in the plaintiff’s story.  This is yet again a perfect opportunity to reinforce the three necessary elements of a sole proximate cause defense. There must be an appropriate and available safety device which the plaintiff has been instructed to use or knew he was to use which the plaintiff, for no good reason, chose not to use or to misuse.  You need all three elements, 1) appropriate safety device which is 2) available and 3) plaintiff was instructed to use it, before the defense is established.

 

Kochman v City of New York
October 8, 2013
Appellate Division, First Department

Plaintiff was a Verizon technician assigned to move a T-1 line circuit at a garage at defendants’ building.  780 E. 123nd Street Co. LLC owned the building, operated by Benenson Capital Co. LLC (“the building defendants”), and leased by the City of New York (“City”) for the use of its Department of Sanitation (“DSNY”), which houses its trucks there. 

After plaintiff arrived at the garage, a DSNY employee showed him the room where the circuit was located and the room where the circuit was to be removed.  The walls of the structure were made of concrete, making drilling holes for the wires impossible.  The DSNY employee recommended running the additional wires through the structure’s roof, stating previous Verizon technicians had done the same.  Plaintiff went to access the roof via a stairway but was told by different DSNY employees not to use the stairway, but they said nothing about the roof. 

Plaintiff got his own ladder, climbed to the top of the structure, looked at the roof, which he could not seek well because of poor lighting and stepped on the structure’s roof.  Plaintiff then fell through the roof which could not support his weight.  He commenced suit alleging violations of Labor Law §§ 240(1), 241(6), 200 and common-law negligence. 

The trial court denied the building defendants’ motion to dismiss the §§ 240(1) and 241(6) claims, and denied the City’s motion to dismiss the common-law negligence claim against it. Both the City and the building defendants argued that plaintiff’s task did not constitute an “alteration” within the meaning of §§ 240(1) and 241(6). 

Labor Law § 240(1) (DRA)

The First Department held that plaintiff was not merely splicing cables into the existing circuit; rather, he was running new wires through the roof of the structure, along the roof, and down into the other room where a new circuit would be installed.  Further, plaintiff would have needed to take steps to permanently affix the wires to the roof of the structure, and to protect them from any hazard.  Thus, the trial court’s decision was affirmed.

PRACTICE POINT:  This is yet another case in the line of cases following the Joblon v Solow decision for the Court of Appeals in 1998.  The key to the issue of whether the matter is a labor law case based on an alteration is if the plaintiff was "making a significant physical change to the configuration or composition of the building or structure".  Case law starting with Joblon and moving forward until today has held that where a hole is drilled, or would need to be drilled, to run a wire or cable through the building that there is an alteration and this the activity is protected.

 

Labor Law § 241(6) (JAE)

The First Department held the trial court should have dismissed the § 241(6) claim based upon Industrial Code regulations §§ 23-1.5, 23-1.7(b) and 23-1.30.  First, § 23-1.5 is too general to support a § 241(6) cause of action.  Second, § 23-1.7(b) applies to hazardous openings, and here plaintiff fell not through an opening, but rather the ceiling itself.  Lastly, plaintiffs’ allegations with respect to § 23-1.30, dealing with improper illumination of the worksite, are too vague to support any inference that the lighting fell below the specific statutory requirements. 

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

The City argued that plaintiffs may not maintain a Labor Law § 200 cause of action against it because it did not direct or control plaintiff's work and because the roof did not represent a dangerous or defective condition of which it had notice. The First Department denied the motion to dismiss, finding issue of fact as to whether the City had knowledge that the roof was dangerous.  There was testimony in the record from a City employee that they had been warned never to access the roof as it could not support a person's weight, giving rise, at the very least, to a question of fact concerning whether the roof was a dangerous condition and whether the City had notice yet failed to warn.


Soto v J. Crew Inc.
October 10, 2013
Court of Appeals

Plaintiff, an employee of a commercial cleaning company assigned to clean that specific store on a daily basis, was dusting a six foot high wooden shelf when he and the ladder fell over, allegedly causing injury.  Cleaning is, of course, an enumerated activity under § 240(1) of the Labor Law and so, plaintiff argued his fall from a ladder should be a covered event.

Labor Law § 240(1) (DRA)

The key to this case is the question of whether this type of cleaning is a covered activity.  The court refers to its decision in Dahar v Holland Ladder where it used an analogy to illustrate their decision not to extend the Labor Law to cover cleaning as a portion of the manufacturing process.

Indeed, the logic of plaintiff's argument here would expand the protections of Labor Law § 240 (1) even beyond manufacturing activities; the statute would encompass virtually every "cleaning" of any "structure" in the broadest sense of that term. Every bookstore employee who climbs a ladder to dust off a bookshelf; every maintenance worker who climbs to a height to clean a light fixture—these and many others would become potential Labor Law § 240 (1) plaintiffs. We decline to extend the statute so far beyond the purposes it was designed to serve. 

The Court of Appeals reaffirmed that commercial window washing is a covered activity, a position which makes logical sense.  Commercial window washers, like construction workers, are routinely exposed to elevation related risks which the remainder of the population simply is not.  The Court here lists the 4 factors to be analyzed to determine if the activity is cleaning as contemplated within the Labor Law:

an activity cannot be characterized as "cleaning" under the statute, if the task: 1) is routine, in the sense that it is the type of job that occurs on a daily, weekly or other relatively-frequent and recurring basis as part of the ordinary maintenance and care of commercial premises; 2) requires neither specialized equipment or expertise, nor the unusual deployment of labor; 3) generally involves insignificant elevation risks comparable to those inherent in typical domestic or household cleaning; and 4) in light of the core purpose of Labor Law § 240(1) to protect construction workers, is unrelated to any ongoing construction, renovation, painting, alteration or repair project.

The Court of Appeals went on to hold that the determination of whether the task was cleaning under § 240(1) is for the court and thus, appropriate for a summary judgment decision and is not a decision for the jury.  However, the Court of Appeals did leave some discretion to the courts, holding that “[t]he presence or absence of any one is not necessarily dispositive if, viewed in totality, the remaining considerations militate in favor of placing the task in one category or the other.”

PRACTICE POINT:  You may recall that I wrote on this same case when it came out of the First Department last year and continue to agree that it is a logical and appropriate decision.  This is simply not the type of accident that the labor Law was promulgated to protect against.  Know the four elements necessary to determine if the cleaning is a covered task under the Labor Law.  Seemingly, if these four elements are present then it is not a Labor Law case.  The elements are; is the cleaning routine and regular, does it require specialized equipment or expertise, does it generally require insignificant elevation risk and is it unrelated to construction.  While there was some discretion built into the decision, remember that this is ultimately a decision for the courts and not for a jury. 

Lopez v Actor’s Studio, Inc.
October 22, 2013
Appellate Division, First Department

Plaintiff was standing on two wooden beams, four or five feet above the dirt floor of the basement of a building undergoing renovation.  He was threading electrical cable through metal studs on the wall four or five feet above the beams, when he fell between the beams, striking his shoulder on one of them.  He commenced suit, alleging a violation of Labor Law § 240(1).

Plaintiff testified that no one had directed him to stand on the beams, but that it was necessary for him to do so to reach the studs.  The president of the general contractor, West Wind Enterprises, who was at the site almost daily, testified that the dirt floor was, at most, 30 inches below the beams and that a person of average height could have threaded cable through the studs on the wall from a standing position on the floor.  The trial court denied plaintiff’s motion for summary judgment with respect to the § 240(1) claim.  

Labor Law § 240(1) (DRA)

The First Department held that the conflicting testimony presents an issue of fact whether plaintiff, who was 6-feet-1-inch tall, had to elevate himself to perform his task or could have done so standing on the floor, in which even the statute would be inapplicable to this case. 

Additionally, an issue of fact exists whether the accident could have happened as plaintiff described.  Plaintiff testified that the two beams on which he was standing were 16 or 18 inches apart.  Conversely, the general contractor’s president stated that he measured the distance between the beams and found it to be approximately 10 ½ inches.  The record shows that plaintiff weighed 230 pounds at the time of the accident and thus, a fact finder could reasonably find that plaintiff could not have fallen between the beams.

Plaintiff unsuccessfully argued that the general contractor’s president’s testimony was not probative because he did not identify when he inspected the premises.  The president submitted an affidavit which stated that his beliefs regarding the level of the beams and how the accident occurred were based on measurements he took a few years after the accident, and also on his “personal knowledge of the construction work ongoing at the time of plaintiff’s alleged accident and from his personal knowledge of the premises upon which plaintiff alleges to have had his accident.”  The First Department held that the president’s affidavit was sufficient to raise a credibility issue and defeat summary judgment.

PRACTICE POINT:  There is an important issue to address here and that is the physical necessity for the plaintiff to be doing the job the way he is.  Here the plaintiff claims to have been standing on two beams when the physical evidence seems to indicate that he did not need to do so.  Recall that plaintiff said he did need to stand on the beams so there is a question of fact which can only be resolved by the finder of fact, your friendly neighborhood jury.  The second question of fact here is could a 230 pound plaintiff even fit between two beams which were either 10 1/2” or 16” apart and fall 30” to a dirt floor injuring his shoulder.  Again a question left for the jury.  This case will, however, be tried in the Bronx.

 

Gonzalez v Perkan Concrete Corp.
October 23, 2013
Appellate Division, Second Department

Plaintiff’s crew was replacing a sidewalk in front of a NYC public school.  As plaintiff leaned over to hammer a two-by-four piece of wood into a tree well so that cement for the new sidewalk could be poured around the tree well, a Bobcat excavating machine operated by a co-worker ran over his left foot. 

Plaintiff commenced suit against Perkan, the SCA, the City, and the NYC Department of Education, alleging violations of Labor Law § 241(6), § 200 and common-law negligence.  Perkan subcontracted with Manny P, plaintiff’s employer, to perform the concrete work for the sidewalk.  Defendants moved to dismiss the complaint, which the trial court granted.

Labor Law § 241(6) (JAE)

Plaintiff relied on Industrial Code regulations § 23-9.5(g) and §23-9.2(a).  § 23-9.5(g) requires “mobile power-operated excavating machines except for crawler mounted equipment” to be equipped with “an approved warning device so installed as to automatically sound a warning signal when such machine is backing.”  The Second Department held defendants failed to demonstrate that § 23-9.5(g) was inapplicable because at the time of the accident, the Bobcat was being used as an excavating machine for excavating work within the meaning of § 23-1.4(v)(18) and (19).  Moreover, defendants failed to show that the Bobcat was equipped with the requisite device or that the Bobcat was not backing up when the accident occurred.  Thus, the trial court should have denied defendants’ motion, regardless of the sufficiency of the opposition papers.

Regulation § 23-9.4(h)(4) governs “[p]ower shovels and backhoes used for material handling" and provides that "[u]nauthorized persons shall not be permitted in the cab or immediately adjacent to any such equipment in operation.”  Defendants demonstrated, prima facie, that § 23-9.4(h)(4) was not violated since, as a member of the work crew replacing the sidewalk, the plaintiff was not an unauthorized person within the meaning of the provision

The Second Department reversed dismissal based on § 23-9.2(a), which sets forth, among other things, that “upon discovery, any structural defect or unsafe condition in [power-operated] equipment shall be corrected by necessary repairs or replacement.”  Although plaintiff asserted this regulation in opposition to defendants’ prima facie showing of entitlement to summary judgment, rather than in his complaint or bill of particulars, the First Department held this omission is not fatal to his claim.

The Second Department affirmed dismissal of the § 241(6) claim based on regulation § 23-9.2(b)(1), which the court held is “merely a general safety standard that does not give rise to a nondelegable duty under the statute.”

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

The Second Department held that the trial court properly granted that branch of the defendants' motion dismissing the causes of action for common-law negligence and Labor Law § 200 insofar as asserted against the SCA. Here, the SCA demonstrated, prima facie, that it did not have the authority to supervise or control the work being performed by Manny P's employees and that its authority over their work was limited only to ensuring compliance with safety regulations and contract specifications,” which is insufficient to impose liability under Labor Law § 200.

However, the Second Department held that the trial court erred in granting summary judgment dismissing the causes of action for common-law negligence and Labor Law § 200 as against defendant Perkan. Under Labor Law § 200, when a defendant lends allegedly dangerous or defective equipment to a worker that causes injury during its use, that defendant, in moving for summary judgment, must establish that it neither created the alleged danger or defect in the instrumentality nor had actual or constructive notice of the dangerous or defective condition.  Perkan failed to demonstrate, prima facie, that it did not create a dangerous condition by providing Manny P with a Bobcat that was not equipped with a working backup alarm or that it lacked actual or constructive notice that the Bobcat was not so equipped. In light of Perkan's failure to make the requisite showing, the sufficiency of the plaintiff's papers in opposition in this regard need not be considered.

Further, in response to Perkan's prima facie showing that it did not supervise or control the subject work, the plaintiff raised a triable issue of fact as to whether Perkan could be held liable, under a theory of negligent bailment, on the ground that the Bobcat it provided to Manny P was not safe for its intended use because it lacked a working backup alarm.

                               Hull v Fieldpoint Communicty Assn., Inc.      
October 23, 2013
Appellate Division, Second Department

Plaintiff was allegedly injured when she fell from a roof while cleaning out leaves from the roof gutters of a residence in a condo development.  She performed her work in accordance with a contract between her employer and defendant Fieldpoint Community, requiring her employer to clean gutters and leaders; inspect, and caulk openings three times per year.

Plaintiff commenced suit alleging violation of Labor Law § 240(1).  The trial court granted defendants motion for summary judgment. 

Labor Law § 240(1) (DRA)

The Second Department held that although the statute applies to commercial “cleaning” which is not part of construction, demolition, or repair, such as commercial window washing and sandblasting, it does not apply to work that is incidental to regular maintenance, such as cleaning gutters of debris.  Thus, defendants established prima facie entitlement to summary judgment.

PRACTICE POINT:  This is why I love the law.   The Soto case from the court of Appeals analyzed above came out October 10.  This case, which cites to Soto, came out 13 days later.  Cleaning not associated with construction, which is not commercial window washing is generally not covered even more so when it is actually routine maintenance. 

 

Dias v City of New York
October 24, 2013
Appellate Division, First Department

Plaintiff testified that he was directing a backfill truck when he fell through an unshielded opening in the water main trench.  The backfilling of the trench had not yet begun at the time of the accident.  Plaintiff commenced suit, alleging a violation of Labor Law § 240(1).  The trial court granted plaintiff summary judgment. 

Labor Law § 240(1) (DRA)

Although plaintiff’s coworker’s affidavit stated that plaintiff was directing the backfill truck to the water main trench before he fell into the trench, the First Department held that the statute was violated under either plaintiff or the coworker’s version of the accident.  Thus, the First Department rejected defendants’ argument that fully shielding the trench would have been contrary to the objectives of plaintiff’s work.  Here the filling of the trench had not yet

Defendants’ argument that plaintiff’s conduct in walking backwards while directing the truck was the sole proximate cause of his accident was also rejected because the First Department held that the safety devices provided – sheets of metal that partially covered the trench – were inadequate.  The First Department also noted that plaintiff’s conduct in walking backwards while directing the truck was, at most, comparative negligence, which is not a defense under § 240(1). 

PRACTICE POINT:   The defendant argued that, like in Salazar, the opening into which the plaintiff fell was not able to be covered as doing so would be “contrary to the objectives of plaintiff's work”, an argument which failed as the trench into which the plaintiff fell was not being filled at the time of the accident and thus covering it would not interfere with any ongoing opperation, unlike the situation in Salazar. 

 

Bombard v Pruiksma
October 24, 2013
Appellate Division, Third Department

Defendant Pruiksma and his wife (herein “Defendant”) owned an 18-acre panel of land in the Town of Greenwich.  They retained an architect, secured a building permit and thereafter hired various contractors for the purpose of building a single-family residence at the site.  Defendant contracted with Top Notch Home Improvement Corp. for the framing work.  Plaintiff performed excavation work at the site.

Defendant was assisting plaintiff and his brother in setting a septic tank when one of Top Notch’s framers requested their assistance in raising one of the walls of the structure.  Plaintiff, his brother and defendant agreed to do so and joined Top Notch’s crew on the house’s deck.  Together, they started to raise or “walk … up” the wall but were unable to complete the lift, and the wall fell back to the deck – trapping plaintiff and defendant beneath it.

Plaintiff commenced suit alleging violations of Labor Law §§ 240(1), 241(6), 200 and common-law negligence.  Defendant filed a third-party action and moved for summary judgment dismissing plaintiff’s complaint.  The trial court granted defendant’s motion.

Labor Law § 240(1) (DRA)

The Third Department noted the phrase “direct or control” in the context of the homeowners exemption is to be strictly construed and “in ascertaining whether a particular homeowner’s actions amount to direction or control of a project, the relevant inquiry is the degree to which the owner supervised the method and manner of the actual work being performed by the injured party.”

Here, Top Notch’s representatives collectively testified that Top Notch provided its own framing and safety equipment and that defendant did not direct the course of the framing work, nor did he advise Top Notch regarding any safety issues.  With respect to the specific incident giving rise to plaintiff’s injury, defendant testified that he did not ask either plaintiff or his brother to assist the framers, i.e., Top Notch, in raising the wall.  The Third Department noted that defendant’s testimony was consistent with plaintiff’s recollection of the event as plaintiff said it was one of “the framers” who “asked … if we could give them a hand to deal with the wall” and, most importantly, made the decision as to the manner in which the wall would be lifted.  Plaintiff testified that defendant did not tell him where to stand, how to position his hands or how to lift the wall – stating that it was Top Notch’s “deal” to raise the wall.

Plaintiff also attempted to portray defendant as the general contractor for the project.  The Third Department held that “case law makes clear, however, that neither providing site plans, obtaining a building permit, hiring contractors, purchasing materials, offering suggestions/input, inspecting the site, retaining general supervisory authority, performing certain work, no physical presence at the site” operates to deprive a homeowner of the statutory exemption – so long as the homeowner did not exercise direction or control over the injury-producing work.  On this issue, the Third Department affirmed the trial court’s decision holding that defendant did not exercise direction or control over plaintiff’s work at the time of the accident.

PRACTICE POINT:  This case gives a great summary of what a single or double family property owner can do and still maintain the exemption.  If you have a case where the exemption is your defense make sure you review this case and know what they are before the deposition, as opposed to finding out after when it is too late.

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

The Third Department reached a similar conclusion with respect to plaintiff's Labor Law § 200 and common-law negligence claims against the homeowners. There was no evidence that the defendant homeowners either exercised supervisory control over plaintiff's work or had actual or constructive knowledge of the unsafe manner in which the work was being performed. 

 

Keneally v 400 Fifth Realty LLC
October 29, 2013
Appellate Division, First Department

In a case with little facts, it appears plaintiff was allegedly injured using a saw with a moveable self-adjusting guard.  Plaintiff’s coworker testified that he used the saw shortly before plaintiff’s accident and observed that the moveable self-adjusting guard had been “sticking” and thus, it did not completely cover the saw blade when removed from the cut.  The trial court denied defendants’ motion to dismiss plaintiff’s § 241(6) claim predicated on Industrial Code regulation § 23-1.12(c)(1). 

Labor Law § 241(6) (JAE)

Regulation § 23-1.12(c)(1) requires that portable saws not provided with saw tables be equipped with fixed guards above the base plate and removable self-adjusting guards below the base plates.  The First Department held that § 23-1.12(c)(1) applied to the facts here because plaintiff was using a “power-driven saw” at the time of his accident. 

Even so, the First Department held triable issues of fact exist as to whether the regulation was violated because the saw provided had a defective or inadequate “moveable self-adjusting guard below the base plate,” which failed to “completely cover the saw blade to the depth of the teeth when such saw blade [was] removed from the cut.” 

Gove v Pavarini McGovern, LLC
October 29, 2013
Appellate Division, First Department

Plaintiff was allegedly injured when a bundle of rebar that his coworker was lowering by rope fell and hit him and, as a result, plaintiff struggled to keep himself and the bundle of rebar from falling off his unguarded platform onto several workers on the level below him.  While struggling with the bundle of rebar the plaintiff’s foot hit an unknown item on the platform, causing him to twist and injure his back. 

Plaintiff filed suit alleging violations of Labor Law § 240(1).  The trial court granted plaintiff summary judgment. 

Labor Law § 240(1) (DRA)

Defendants pointed to an alleged discrepancy between plaintiff’s testimony and his handwritten statement on a form seeking medical treatment.  The First Department held that the statement on the medical form does not conflict with the testimony establishing that “plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.”  Even if plaintiff’s injuries resulted in part from tripping or slipping on an object on the platform, the uncontroverted evidence demonstrates that these injuries resulted directly from the elevation-related risks that required plaintiff to struggle with the bundle of rebar.

Plaintiff also testified that he made extensive but fruitless efforts to obtain permission to use an on-site crane that was in use by other laborers.  The First Department held defendants failed to raise an issue of fact whether plaintiff was the sole proximate cause of his accident by failing to show that a crane, pulley, or other appropriate safety device was readily available on the site, or that plaintiff had been instructed to use such a device while performing the kind of work that led to his injuries.  Moreover, plaintiff agreed to use the rope method only after expressing concerns about the adequacy of the rope as the sole safety device to be used for the task, and being assured by his foreperson that it would be “okay.”  Therefore, plaintiff could not be the sole proximate cause of the accident since he did not unilaterally decide to use the rope method.

Lastly, defendants unsuccessfully argued that plaintiff was negligent in deciding to lower the bundle of rebar, rather than separating it into smaller bundles.  Thus, the First Department held that the evidence establishes prima facie that plaintiff’s injuries were proximately caused, at least in part, by defendants’ failure to provide him with proper protection as required by the statute.  Accordingly, any contributory negligence on plaintiff’s part is not a defense under the statute.

PRACTICE POINT: Here there was an attempt to establish that a version of the accident contained in the medical records was different than the version provided by plaintiff in his deposition.  In spite of the fact that this was not successful here it remains a good idea to check the medical records, particularly the ambulance and ER records for description of how the injury was caused.  Once again do this before the depositions to assist you in examining the plaintiff to see if his description is consistent with the written record.

 

Montalvo v Mumpus Restorations, Inc.
October 30, 2013
Appellate Division, Second Department

Plaintiff was allegedly injured after he was struck by a bucket of roofing adhesive that fell from the building’s roof.  The building owner employed defendant building owner to repair the building’s roof.  Plaintiff commenced suit based upon, among other things, violation of Labor Law § 200 and common-law negligence.  Defendants moved for summary judgment dismissing the complaint.

While defendants’’ motion was pending, the trial court vacated the note of issue pursuant to a “so-ordered” stipulation between the parties.  Subsequently, the trial court denied, in part, defendants’ motion, and an appeal ensued.  After the Second Department affirmed that decision, plaintiff sought to file another note of issue but it was rejected because of an “e-courts’ notation that the case was previously “disposed” of on the date the first note of issue was vacated pursuant to the so-ordered stipulation. 

Plaintiff moved to restore the action to active status, and defendant cross-moved to dismiss pursuant to CPLR § 3404 and the doctrine of laches.  The trial court granted plaintiff’s motion and denied defendant’s cross-motion.  CPLR 3404 states, in relevant part:

"[a] case . . . marked off' or struck from the calendar or unanswered on a clerk's calendar call, and not restored within one year thereafter, shall be deemed abandoned and shall be dismissed without costs for neglect to prosecute. The clerk shall make an appropriate entry without the necessity of an order."

The Second Department held that the vacatur of a note of issue returns the case to pre-note of issue status.  It does not constitute a marking "off" or striking the case from the court's calendar within the meaning of CPLR 3404.   Contrary to defendant’s contention, the one-year period under CPLR § 3404 for automatic dismissal did not start to run when the note of issue was vacated, and the case was not properly dismissed then under the CPLR.  Thus, plaintiff was not required to establish his entitlement to restoration.

Moreover, “the doctrine of laches does not provide a basis to dismiss a complaint where there has been no service of a 90-day demand pursuant to CPLR 3126(b), and where the case management devices of CPLR 3404 and 22 NYCRR 202.27 are inapplicable.” 

PRACTICE POINT:  remember that 3404 provides for automatic dismissal but only when the case has been removed from the court’s calendar, not simply because the Note of issue is stipulated as withdrawn. 

 

Antelope v Saint Aidan’s Church, Inc.
October 30, 2013
Appellate Division, Second Department

Plaintiff was working on air-conditioning units on the roof of a church when he fell from a catwalk onto the church’s roof.  He commenced suit against the church and the Diocese of Rockville Centre, alleging violations of Labor Law § 200 and common-law negligence.

Defendants moved to dismiss those claims, arguing plaintiff was unable to identify the cause of his fall without engaging in speculation.  The trial court denied defendants’ motion.

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

The Second Department reversed and dismissed the Labor Law § 200 and common-law negligence claims against the defendants on the basis that the plaintiff could not identify the cause of his fall.  A plaintiff's inability to identify the cause of the fall is fatal to the cause of action because a finding that the defendant's negligence, if any, proximately caused the injuries would be based on speculation.  As plaintiff could not identify what caused him to fall, the record was devoid of any evidence of negligence or of a defective or dangerous condition that was the cause of the injury. 

 

Mutadir v 80-90 Maiden Lane Del LLC
October 31, 2013
Appellate Division, First Department

Plaintiff, a carpenter employed by nonparty Gristedes, allegedly injured his wrist when the milk crates upon which he was standing to install “slot boards” used to support shelves on the interior walls of the property, shifted and caused him to fall to the ground.  Defendants were the owner and managing agent of the property and had entered into a lease with Gristedes, which required Gristedes to convert the premises into a supermarket.  Plaintiff alleged that prior to performing his work he unsuccessfully looked for a ladder to use and was directed by the acting foreman to use the milk crates.    

Plaintiff commenced suit, alleging violations of Labor Law § 240(1) and § 241(6).  Defendants’ claimed that ladders were available on site, and submitted an affidavit from an individual whom claimed that he was working for Gristedes on site and there were more than enough ladders available for plaintiff’s work.  The trial court granted defendants’ motion for summary judgment dismissing both claims, and denied plaintiff’s cross-motion for partial summary judgment on the § 240(1) claim.   

Labor Law § 240(1) (DRA)

The First Department held the record establishes that plaintiff’s accident involved an elevation-related risk and his injuries were proximately caused by the failure to provide him with proper protection under the statute.  The First Department determined that defendants’ claim that ladders were available is conclusory and fails to raise an issue of fact.  Further, even if their affidavit was admissible, it failed to raise an issue of fact as to whether plaintiff was the sole proximate cause of his injuries since it does not indicate that plaintiff knew there were ladders available on site and that he was expected to use them.

Defendants were also unsuccessful in asserting they lacked notice or control over plaintiff’s work, but the First Department noted lack of notice or control is not dispositive under § 240(1).  Moreover, plaintiff’s work at the time of the accident was a protected activity.  The trial court improperly “isolated the moment of injury and ignored the general context of work.” 

The First Department also noted that the installation of “slot boards” could not be considered “altering” within the meaning of the statute because plaintiff was employed by a company that was contractually bound by its lease to undertake activity enumerated in the statute, including “demolition,” “erection,” and “altering.”  Additionally, plaintiff has worked as a carpenter at the same site for three months, during which time his team demolished and reconstructed the internal configuration of the building.  Simply put nothing in the record support defendants’ argument that all enumerated activity had been completed at the time of the accident.

PRACTICE POINT:  First, recall that there are three elements to the sole proximate cause defense and all three must be present as outlined in the Goreczny v 16 Ct. St. Owner LLC case above.  Here no proof was provided to the court that the plaintiff knew that there were ladders available and that he was expected to use them.  Next, it is not simply the task being performed by the plaintiff at the exact second of the accident which is to be considered when determining if the event is covered by the labor law but rather the entire body of work done by the plaintiff at the site and not just the immediate task.  Always look at the broader scope of the work being done.

Labor Law § 241(6) (JAE)

The First Department affirmed dismissal of plaintiff’s § 241(6) claim based upon Industrial Code regulations § 23-1.22(c) and §§ 23-5.1(c) and (d).  § 23-1.22(c) “sets safety standards for platforms used to transport vehicular and pedestrian traffic.”  The First Department held § 23-1.22(c) is inapplicable to the milk crates on which plaintiff stood.  Further, § 23-5.1(c) is not sufficiently specific to support a § 241(6) claim, and in any event, §§ 23-5.1(c) and (d) are inapplicable here because plaintiff was not working on a scaffold at the time of the accident.

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

Dismissal of the common-law negligence and Labor Law § 200 claims was appropriate since defendants did not exercise supervision or control over plaintiff's work. Although defendants’ representative visited the construction site on occasion, there is no evidence that he ever gave specific instructions to plaintiff or his employer on how to do the work.

Barreto v Metropolitan Transp. Auth.
October 31, 2013
Appellate Division, First Department

Plaintiff was hired by third-party defendant P.A.L. Environmental Safety Corp. (“PAL”), the general contractor at the site, to engage in asbestos removal work.  PAL was hired by NYCTA on behalf of MTA, which leased the area of the street surrounding the manhole from the City, the site owner.  PAL retained by subcontract IMS Safety Corp. as a safety consultant.  The City, MTA and NYCTA did not contract with IMS or any other party to ensure site safety, and neither supervised nor provided any equipment for the project.  A PAL supervisor directed plaintiff’s work.

The asbestos removal work occurred at night.  At the beginning of each shift, PAL workers constructed a wooden enclosure covered with plastic sheeting around the manhole and an opening to provide access thereto. After PAL workers erected the enclosure, MTA inspectors checked to see that electricity had been turned off in the manhole, and IMS monitored the below-ground air quality before workers descended.  PAL workers then removed the manhole cover and began their work.  At the end of the shift, PAL workers were directed to remove their equipment from below ground, exit the manhole, replace its cover and dismantle the containment enclosure.  Plaintiff’s accident occurred at the end of a shift, when he and coworkers began dismantling the enclosure and he fell into the uncovered manhole. 

Plaintiff brought suit and moved for partial summary judgment on his common-law negligence and Labor Law §§ 200, 240(1) and 241(6) claims against IMS Safety Corp., and against MTA, NYCTA, and the City of New York on his § 240(1) claim.  The trial court denied plaintiff’s cross-motions and granted IMS’s motion to dismiss the complaint and any cross-claims against it, and granted MTA, NYCTA and the City’s summary judgment motions to dismiss the Labor Law claims against them.  The trial court determined that plaintiff was the sole proximate cause of the accident because he did not cover the manhole before beginning to dismantle the containment enclosure.

Labor Law § 240(1) (DRA)

Initially, the First Department held that IMS, the site safety consultant, cannot be liable for the accident because it was subcontractor with no supervisory authority over plaintiff or his work.  Thus, IMS was not a statutory agent subject to liability under Labor Law §§ 240(1) or 241(6).

More importantly, the First Department held that plaintiff was provided with the perfect safety device, namely, the manhole cover, which was nearby and readily available and he disregarded his supervisor’s explicitly instruction given that day to replace the cover before dismantling the enclosure (emphasis added).  Having just emerged from it, the First Department noted that plaintiff should have known the manhole was still open, and covering it at that time would have avoided the accident.

Justice Feinman’s dissent argues that plaintiff’s motion regarding § 240(1) should have been granted as plaintiff’s work in close proximity to an open, 10-foot hole posed an elevation-related risk covered under the statute.  According to the dissent, plaintiff established entitlement to judgment as a matter of law by showing defendants failed to provide safety devices adequately protecting him from falling through the hole.  The dissent points to the president of IMS’s testimony wherein he stated that on projects similar to this one, a metal guardrail system would typically be placed around a manhole while it was uncovered to provide protection for workers under applicable OSHA regulations.

The dissent does not support the majority’s determination that, had this guardrail been provided, it would have been opened or removed from the manhole before the accident occurred and thus, would not have prevented plaintiff’s injuries.  The dissent would hold that the cover was not on the manhole, and no guardrail or other adequate safety device was constructed, placed, or operated as to give proper protection to plaintiff. 

With respect to the sole proximate cause issue, a plaintiff “is expected, as a normal and logical response, to obtain a safety device himself” only when the plaintiff “knows exactly” where it is located, and “there is a practice of obtaining the safety device himself because it is easily done.”  The fact that plaintiff could not have physically replaced the manhole cover by himself, as it was too heavy for one person to move.  His supervisor stated only that, at the beginning of the project, he directed plaintiff to not perform work around the manhole area while it was uncovered; there is no indication that he directed plaintiff to personally cover the manhole.  Further, plaintiff had not personally removed the manhole cover at the beginning of the shift.  Accordingly, the dissent would find triable issues of fact as to whether plaintiff was the sole proximate cause.

Lastly, the dissent argued that while the manhole cover would have prevented this particular accident, it was not an adequate precaution against the danger of falling from a height as contemplated under the statute because the risk of falling through the manhole existed for the entire time the cover was off, not only while the surrounding enclosure was being deconstructed.  Had a safety device like the guardrail been provided, plaintiff would have been protected from this accident, whether it occurred during the deconstruction or at any earlier point of his shift.    

PRACTICE POINT:  It is once again those pesky three elements of a sole proximate cause defense.  The safety device must be 1) appropriate to provide protection to the plaintiff, it must be 2) available to the plaintiff and the plaintiff must 3) have been instructed to use it but, for no good reason, not used it or misused it.  It

Labor Law § 241(6) (JAE)

Plaintiff’s claimed § 241(6) required defendants to furnish a guardrail around the manhole, or safety netting or a harness.  According to the First Department, there is no reason that other devices were necessary after the workers exited the manhole or that the manhole cover was inadequate.  Further, neither a guardrail, netting, nor a harness would have prevented the accident as they would have been opened or removed to allow the workers to exit the manhole and to deconstruct the enclosure.  Thus, plaintiff’s alleged Industrial Code violations did not proximately cause the accident.

 

 

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

 

Regulation § 23–5.1(c)(2), requiring all scaffolds be provided with adequate horizontal and diagonal bracing to prevent lateral movement, held potentially applicable where a question of fact existed as to whether the makeshift scaffold conformed to the rule’s requirement (Treu v Cappelletti, supra); inapplicable where plaintiff injured when platform collapsed and did not argue that plywood platform to support duct work was designed and intended to support worker and their materials (Olson v Pyramid Crossgates Co., 291 AD2d 706, 736 NYS2d 430 [3d Dept. 2002]).

Regulation § 23–5.1(e)(1), prescribing standards for scaffold planking, was held potentially applicable where plaintiff was injured while attempting to descend a multi-level scaffold with allegedly inadequate planking (Harris v Hueber-Bruer Const. Co., Inc., 67 AD3d 1351, 890 NYS2d 236 [4th Dept. 2009]).

Regulation § 23–5.1(f), requiring that scaffolds be kept in good repair and that defects and noncomplying conditions be fixed before further use, merely sets forth general rather than specific standards and is thus insufficient to support a Labor Law § 241(6) cause of action (Allan v DHL Exp. (USA), Inc., 99 AD3d 828, 952 NYS2d 275 [2d Dept. 2012]; Holly v Chautauqua, 63 AD3d 1558, 881 NYS2d 741, rev’d on other grds, 13 NY3d 931, 895 NYS2d 308 [2010]; Fisher v WNY Bus Parts, Inc., 12 AD3d 1138, 785 NYS2d 229 [4th Dept. 2004]; Schiulaz v Arnell Const. Corp., 261 AD2d 247, 690 NYS2d 226 [1st Dept. 1999]; Moutray v Baron, 244 AD2d 618, 663 NYS2d 926 [3d Dept. 1997] [§ 23–5.1(f) is not sufficiently specific because it is a subpart of general provisions for all scaffolds]).

Regulation § 23–5.1(h), requiring scaffolds be erected and removed by a designated person, is sufficiently specific to support a Labor Law § 241(6) cause of action, and is potentially applicable where a worker was standing on a stack of bricks piled onto scaffold fell to scaffold planking (Abrea v URS Greiner Woodward Clyde, supra).  

Regulation § 23–5.1(h) held inapplicable where scaffold was not being erected or removed at the time of the plaintiff's accident (Allan v DHL Exp. (USA), Inc., supra); inapplicable where plaintiff’s accident unrelated to defective scaffold’s erection or removal (Holly v Chautauqua, supra); inapplicable where a worker’s use of a truck as an functional equivalent of scaffold had ceased and scaffolding material was removed before the accident occurred (Lavore v Kir Munsey Park 020, 40 AD3d 711, 835 NYS2d 708 [2d Dept. 2007]).

Regulation § 23–5.1(i), prescribing the size, length, width, and lay-out of planks used to protect workers exposed to danger from overhead falling objects, is sufficiently specific to support a Labor Law § 241(6) cause of action (Zervos v New York, supra).

Regulation § 23–5.1(j), prescribing detailed standards for scaffolds by requiring that safety railings be provided for open sides of scaffolds located more than 7 feet, held inapplicable where scaffold was 6 feet from the ground and had no safety railings (Holly v Chautauqua, supra); inapplicable where worker injured when he attempted to realign a side panel of the sidewalk bridge he and his coworkers were constructing and panel gave way and worker fell to the ground (Kaminski v Carlyle One, 51 AD3d 473, 856 NYS2d 627 [1st Dept. 2008]); plaintiff denied summary judgment under § 241(6) because of factual issues as to whether scaffold from which he fell was at least seven feet high (Crespo v Traid, Inc., 294 AD2d 145, 742 NYS2d 25 [1st Dept. 2002]).

Regulation § 23–5.1(j) held applicable where plaintiff’s fall from six-foot-high, manually propelled scaffold that he was directed to use to plaster 15-foot-high ceiling, regardless of whether fall resulted from scaffold falling over or tipping or was due to worker taking misstep off side of scaffold (Vergara v SS 133 West 21, LLC, 21 AD3d 279, 800 NYS2d 134 [1st Dept. 1005]).

Regulation § 23–5.2 pertains to scaffolds, and is inapplicable where plaintiff’s accident did not involve the use of scaffold (Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139, 950 NYS2d 35 [1st Dept. 2012]; Maldonado v Townsend Avenue Enterprises, supra); inapplicable where demolition worker's 8-foot fall from top of partially demolished wall and pile of accumulated demolition debris which was blocking doorway (Jara v New York Racing Ass’n, Inc., supra).

Regulation § 23–5.3(e) requires safety railings for all metal scaffolds (Macedo v J.D. Posillico, supra).

Regulation § 23–5.3(f), requiring provision of ladders, stairs or ramps for access to and egress from platform levels of metal scaffolds located more than two feet above or below ground, grade, floor or other equivalent level, is sufficiently specific to support a § 241(6) cause of action (Sopha v Combustion Engineering, Inc., supra).

Regulation § 23–5.3(f) held potentially applicable where plaintiff injured while attempting to descend multi-level scaffold with allegedly inadequate planking (Harris v Hueber-Bruer Const. Co., Inc., supra); defendants’ denied summary judgment because issue of fact existed as to whether a stepladder was available to plaintiff at the job site (Notaro v Bison Const. Corp., 32 AD3d 1218, 821 NYS2d 715 [4th Dept. 2006]).

Regulation § 23–5.3(g), prescribing standards for footing of metal scaffolds, is sufficiently specific to support a § 241(6) cause of action (Mugavero v Windows By Hart, Inc., supra).  Regulation § 23–5.3(g) held potentially applicable where scaffold being dismantled tipped backward, causing plaintiff to fall to the ground (Calderon v Walgreen Co., supra); potentially applicable where worker standing on a stack of bricks piled onto scaffold fell to scaffold planking (Abreo v URS Greiner Woodward Clyde, supra).

Regulation § 23–5.3(h), requiring that metal scaffolds be securely tied into the building or other structure and at intervals of no more than 30 feet horizontally and 26 feet vertically, is sufficiently specific to support a Labor Law § 241(6) cause of action, and potentially applicable where plaintiff standing on stack of bricks piled onto scaffold fell to scaffold planking (Abreo v URS Grenier Woodward Clyde, supra).

 

Hurwitz & Fine, P.C. is a full-service law firm
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Labor Law Pointers

Editor
David R. Adams

Associate Editor

V. Christopher Potenza

Associate Editor
Steven E. Peiper

Associate Editor

Jennifer A. Ehman

Associate Editor
Marc A. Schulz

Labor Law Team

 David R. Adams, Team Leader                                              Steven E. Peiper
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            Dan D. Kohane                                                                       Cassandra A. Kazukenus
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            Michael F. Perley                                                                   Jennifer A. Ehman
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            V. Christopher Potenza                                                          Marc A. Schulz
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