From the Editor:  
Do you have a situation, we love situations. 

If you have a unique situation, a troublesome case or even a run of the mill fall from a ladder or scaffold please feel free to give us a call or send an email and play stump the lawyer with your fact pattern, the more complex the better.  Is it a labor law case, can we enforce this indemnification clause in the contract, are we entitled to additional insured status, these are the questions that keep us off the streets nightly and provide us with hours of dry and boring conversation, which, incidentally, we enjoy. 

We also are doing more and more construction defect work, an area of the law which I find to be challenging and interesting.  Steve Peiper just got back from a three day mediation on a construction defect case involving, of course, coverage issues as well as questions of liability.  We are finding that our labor law experience, our understanding of the trades, our access to quality experts and of course the depth of our coverage department allows us to handle these complex cases in an efficient manner, providing quality representation and obtaining favorable results.  Please feel free to contact us with any questions in this area.

Well we are into the summer home stretch and generally have a light month in August, not so this year.  We have 17 cases for your review, covering topics from sole proximate cause to the alter ego sole remedy defense for related companies.

Sometimes it all starts with a picture.  A reader sent me the photo below showing a ladder attached to a tree in a most terrifying manner and raising the question what would happen if a worker fell from the ladder while trying to remove this tree using what can best be described as an inventive means of ascending the tree to cut it down and could be more accurately be described as lunacy.  The answer, for those of you who were wondering, is that it would not be a labor law case.  The explanation is relatively simple, and only requires us to return to the statute to understand why.  A tree is not a structure and thus 240(1) does not apply.  Moreover, we reported on a Third department case analyzing this exact situation earlier this year, I have added that write up below. 

 

Juett v Lucente
December 12, 2013
Appellate Division, Third Department

Plaintiff was allegedly injured while removing tree limbs with a chainsaw as part of a project to expand the parking area outside of an apartment building.  A tree limb he cut knocked over the ladder he was using and caused him to fall.  He filed this action against defendants owner and managers of the apartment building (“defendants”), alleging common-law negligence and violations of Labor Law §240(1) and §241(6).  Plaintiff moved for summary judgment on his §240(1) claim, arguing that he was employed in “duties ancillary to” work encompassed by the statute, namely, the expansion of the parking lot.  The trial court denied plaintiff’s motion.

Labor Law § 240(1) (DRA)

The Third Department noted that a tree is a naturally occurring object that is “clearly not a ‘building’ or ‘structure’ within the statute, and held that here, the construction work involved only a parking area or highway and nothing more.  Thus, the Third Department held plaintiff’s work does not constitute work on a building or structure for purposes of the statute.  

Additionally, the Third Department, at defendants’ request, granted summary judgment to defendants because it was fully warranted by the record and would serve the interest of judicial economy under the circumstances presented here.

PRACTICE POINT:  The most important thing that anyone who works in this arena can do is to read the statute at least once per month.  I have a printed copy taped to my computer at all times along with section 11 of the comp law.  Here, the knowledge that the statute requires that the work must be done to a structure or building is something that all too many would overlook simply seeing a construction project and a plaintiff falling from a ladder.

Thanks for subscribing; we enjoy producing this newsletter, hearing from our readers with questions and discussing cases.  Enjoy and we will be back next month, same bat time, same bat station.  Remember that anything that appears blue on your screen is a hyperlink and a simple click will bring you to the case, prepare and email or take you to the statute.
David

 

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

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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.
Bermejo v New York City Health & Hosps. Corp.
July 2, 2014
Appellate Division, Second Department

Bermejo, an employee of JP Marble, allegedly was injured when the wooden platform of the scaffold he working on collapsed, causing him to fall through the metal framework of the scaffold to the floor.  Defendant Amsterdam owned the building where Bermejo was working.  Amsterdam entered into an agreement with Equinox to lease certain space within the building.  Eclipse, on behalf of Equinox, entered into an agreement with third-party plaintiff Ibex to act as the general contractor for the “build out” of the leased space.  Ibex subcontracted with third-party defendant Marble, who subcontracted with JP Marble to install the ceramic wall and floor tile.

Bermejo sued Amsterdam and Ibex, among others, and then Ibex sued Marble.  Bermejo alleged a violation of Labor Law § 240(1), and moved for summary judgment on that claim.  Ibex cross-moved for summary judgment on its third-party action for contractual indemnification.  Amsterdam and defendant Monadnock also cross-moved on their claims for contractual and common-law indemnification against Ibex and Marble, or declaring them third-party beneficiaries of certain contracts.  The trial court granted Bermejo’s motion, denied Ibex’s cross-motion for contractual indemnification, and denied Amsterdam’s and Monadnock’s cross-motions for common-law indemnification against Ibex.  Defendants appealed the decision.    

Labor Law § 240(1) (DRA)

The Second Department affirmed the trial court’s decision to grant Bermejo’s motion against Amsterdam and Ibex because here, since the scaffold collapsed, Bermejo established prima facie that he was not provided with an adequate safety device to do his work and this statutory violation was a proximate cause of his injury.  In opposition, Amsterdam and Ibex argued that Bermejo’s failure to use certain clips securing the platform to the scaffold frame was the sole proximate cause of the incident. 

According to the Second Department, “when a plaintiff handles a scaffold in such a manner as to create the condition causing its collapse, his or her conduct is the sole proximate cause of the accident.”  Here, the Second Department held Amsterdam and Ibex failed to establish prima facie that the incident was caused by the manner in which Bermejo handled the scaffold.  The Second Department further held a sufficient nexus existed between Amsterdam and Bermejo to impose liability on the out-of-possession owner under the statute.

PRACTICE POINT:  Important to note here is the seconds citing of a 2006 case (Berenson v Jericho Water Dist.) where the court held the plaintiff’s handling of the scaffold in a manner which caused the fall was the sole proximate cause.  This is commonly discussed as the “misuse” of a safety device and for the sole proximate defense to work the safety device must be appropriate when properly used and the plaintiff must have “misused it for no good reason”.  Importantly when deposing witnesses in this type of case the training of the plaintiff is of paramount importance, to provide proof that the plaintiff either was instructed (for the defendant) or was not instructed (for the plaintiff) in the proper manner to use the safety device.  Understanding the status of the law prior to conducting the deposition cannot be over emphasized. 

Indemnity Issues in Labor Law (SEP)

With regard to Ibex’s contractual indemnification claim against plaintiff’s employer, Marble, the Appellate Division reversed the trial court which had held that the clause at issue required a finding of negligence against Marble.  In reviewing the clause at issue, the Court found the indemnity protection to require only that the loss arise “in whole or in part and in any manner from the act, failure to act or  omission…in connection with the performance of the work.” As there was no requirement for Marble to have been negligent, the Appellate Division refused to create one out of thin air.  Moreover, because Marble failed to establish an active negligence on Ibex, Ibex was entitled to summary judgment on the contractual indemnity claim.

The Appellate Division also reversed the trial court’s denial of Amsterdam and Monadnock’s motion for common law indemnification against Ibex.  In reaching this conclusion, the Court noted that Amsterdam/Monadnock established that they were not negligent, and that Ibex had “exercised its authority to supervise plaintiff’s work and implement safety procedures.” 

Finally, the Court affirmed the trial court’s dismissal of Amsterdam’s contractual indemnification claims against Ibex where, as here, there was no contract between the parties.

PEIPER’S POINT  - We’re confused by this one.  Was Ibex negligent, or was it not?  If exercised supervision over plaintiff’s work, does it not share some apportionment of negligence?  If so, the claim for common law indemnification against it makes sense.  However, earlier the Court ruled that Ibex was not negligent and, thus, entitled to contractual indemnification from Marble. 

Is the Court saying that exercising supervision creates common law indemnification liability, but is not negligent?  We surely hope not

Delgado v All-Safe, Inc.
July 2, 2014
Appellate Division, Second Department

Delgado was apparently using a hoist onto which he was loading a stack of sheetrock when he was injured.  He moved for summary judgment on his Labor Law § 240(1) claim against defendants All-Safe, Level 7 and NCF.  All-Safe cross-moved to dismiss the Labor Law claims as did Level 7 and NCF.  The trial court granted Delgado’s motion and denied defendants’ cross-motions.  All-Safe, Level 7 and NCF (“defendants”) appealed.

Labor Law § 240(1) (DRA)

Delgado conceded to the trial court and on appeal that All-Safe was entitled to summary judgment on the § 240(1) claim.  The Second Department held that All-Safe was entitled to the same relief for the § 241(6) claim for the same reason because All-Safe demonstrated prima facie that it did not have the authority to supervise or control Delgado’s work.  The Second Department further held the trial court should have denied Delgado’s motion on his § 240(1) claim against Level 7 and NCF because, to prevail on that claim, Delgado was required to establish the statute was violated and the violation was a proximate cause of his injuries.  However, the Second Department held Delgado failed to do so.  Moreover, Level 7 and NCF failed to demonstrate prima facie that Delgado was not exposed to an elevation-related risk contemplated by the statute.

PRACTICE POINT:  This case is short on facts as to why the court found a question of fact as to whether the plaintiff was exposed to an elevation related risk and there is no reported case from the trial court.  Thus we are left to discuss the overall premise of a falling object case.  When an object falls and causes injury to a plaintiff the object must be an object which is either being hoisted, or an object which should have been secured to prevent injury.  There are a collection of cases involving falling objects where, as presumably in this case, the liability question focuses on the securing issue, was the object that fell one that should have been secured or would securing the object have been contrary to the task being performed.  In other words, if the sheet rock in the instant case needed to be unloaded from its location, how could it be secured without preventing the unloading of the items? 

Brownrigg v New York City Hous. Auth.
July 2, 2014
Appellate Division, Second Department

Brownrigg and his coworker, both elevator mechanics, were repairing one of two elevators sharing a common shaftway in a building, while the other elevator remained in operation.  Upon returning to the elevators after making a call, Brownrigg called the operational elevator, stepped part of the way into it, looked up into the shaftway, and called out to his coworker, who was on top of the cab of the elevator being repaired, to ask on which floor the coworker was working.  As the coworker turned to answer, he knocked a tool off the top of that elevator’s cab and the tool fell, injuring Brownrigg’s right eye.  He filed this Labor Law action against defendant NYC Housing Authority, the building owner, alleging violations of §§ 200, 241(6) and 241-a.

A trial was conducted on the issue of liability only, and Brownrigg’s primary theory was that defendant’s failure to install a vertical barrier between the two elevators sharing the shaftway in which he was working constituted violations of the Labor Law and those violations proximately caused his injury.  All witnesses to the appearance and condition of the shaftway agreed there was no vertical barrier in place at the time of the incident.  A jury found in favor of Brownrigg.  The trial court denied defendant’s motion to set aside the verdict and for judgment as a matter of law dismissing the complaint, or, alternatively, to set aside the verdict as contrary to the weight of the evidence and for a new trial.  The trial court then entered judgment in favor of Brownrigg. 
Labor Law § 241(6) (JAE)

Industrial Code regulation § 23-2.5(b)(3) requires that “where any elevator is being installed, repaired, or replaced and persons are working in the shaft, a solid or wire mesh partition shall be provided where necessary to prevent such persons from contacting any adjacent operable elevator or counterweight.” 
The Second Department found no dispute that solid or wire mesh had not been provided and that, had such mesh been provided, Brownrigg would have been protected from the hazard presented by tools falling down the elevator shaft.  Accordingly, support was found for the jury’s finding defendant violated Labor Law § 241(6).
Labor Law § 200 and Common-Law Negligence(VCP)
As Brownrigg’s claim arose out of the methods or means of the work, to be liable under § 200 the defendant must have had authority to supervise or control the work.  As this was a motion to set aside the verdict pursuant to CPLR § 4404(a), the  defendant was required to demonstrate that there was no valid line of reasoning by which the jury could have concluded that it had the authority to supervise or control the work.  The Second Department held that the jury’s determination that defendant had the authority to supervise or control the work was supported by a valid line of reasoning and a fair interpretation of the evidence supported the jury’s verdict.

Maragliano v Port Auth. of NY & NJ
July 2, 2014
Appellate Division, Second Department
Maragliano allegedly was injured when plywood fell on him.  He was employed as a helper by nonparty Maracap.  Defendant Port Authority hired Maracap to act as the general contractor for repair work performed on a ramp to the George Washington Bridge.  Maracap leased storage space from Zano at the premises and used that space to prepare materials for its work under the contract with the Port Authority.      
Defendant Port Authority and Zano Industries moved to dismiss Maragliano’s Labor Law §§ 240(1) and 241(6) complaint and Maragliano opposed.  The trial court initially denied the defendants’ motions.  The Port Authority and Zano then moved to renew their motions, and Maragliano also cross-moved to reargue his opposition to the Port Authority’s motion.  The trial court then vacated its initial determinations by denying Maragliano’s cross-motion and granting the Port Authority and Zano’s motions for summary judgment.  Maragliano appealed.   
Labor Law § 240(1) (DRA)
The Second Department held the Port Authority established that at the time of the incident, Maragliano was not engaged in construction work within the meaning of § 240(1) and was not working in a construction area under § 241(6).  In opposition, Maragliano failed to raise a triable issue of fact.  Thus, upon renewal the trial court properly granted the Port Authority’s motion for summary judgment.  Further, Maragliano’s cross-motion did not offer any new facts offered in support of his opposition to the Port Authority’s motion to renew. 

With respect to Zano, the Second Department held the trial court properly determined that, pursuant to the law-of-the-case doctrine, it was appropriate, upon renewal, to grant Zano’s summary judgment motion.  The Second Department noted that pursuant to the law-of-the-case doctrine, it is not bound by the trial court’s prior determination, and therefore, under the circumstances presented in this case it declined to disturb the trial court’s invocation of the doctrine.
PRACTICE POINT:  The most important issue to be aware of here is that a motion to reargue, no matter what the moving party may call it, is not an appealable order.  To be a motion to renew the moving party must provide new facts or law which would alter the outcome of the prior motion and must offer a valid reason for failing to provide the new facts or law in the prior motion.  A motion to reargue must establish that the court overlooked or misapprehended facts or law contained in the prior motion.  A motion to renew is appealable; a motion to reargue is not.  I have attached the applicable portions of CPLR 2221 below for your review.  It is always critical to appeal the proper order, here that would have been the denial of the original order and not the order denying the motion to reargue couched as a motion to renew.  As to the Labor Law portion of the case the fact that the plaintiff was not working on the construction site but apparently working in leased space preparing materials for work on a construction site resulted in the court finding that the task being undertaken was not a portion of the construction project and thus not a covered event.
Rule 2221. Motion affecting prior order
(d) A motion for leave to reargue:
1. shall be identified specifically as such;
2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and
3. shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. This rule shall not apply to motions to reargue a decision made by the appellate division or the court of appeals.
(e) A motion for leave to renew:
1. shall be identified specifically as such;
2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and
3. shall contain reasonable justification for the failure to present such facts on the prior motion.
(f) A combined motion for leave to reargue and leave to renew shall identify separately and support separately each item of relief sought. The court, in determining a combined motion for leave to reargue and leave to renew, shall decide each part of the motion as if it were separately made. If a motion for leave to reargue or leave to renew is granted, the court may adhere to the determination on the original motion or may alter that determination.
N.Y. C.P.L.R. 2221 (McKinney)

Ahmed v New York City Hous. Auth.
July 2, 2014
Appellate Division, Second Department
Ahmed sustained injuries on 7/25/11 as a result of tripping and falling due to an alleged sidewalk defect adjacent to property owned by defendant NYC Housing Authority.  Ahmed filed a notice of claim on 9/22/11.  In response to NYC’s motion to dismiss the complaint because the notice of claim was inadequate, Ahmed cross-moved to file an amended notice of claim to include allegations that he fell after climbing a ladder to go over a fence as an employee of a contractor, and, of course, claims under the Labor Law.  The trial court denied NYC Housing Authority’s motion, and granted Ahmed’s cross-motion for leave to serve and file an amended notice of claim.

Labor Law § 240(1) (DRA)
The Second Department reversed because the proposed amendments to the notice of claim included substantive changes to the facts, adding that Ahmed was injured after he climbed a ladder to go over a fence, changing the situs of the incident, and identifying Ahmed as a worker at the site.  Ahmed’s proposed amendments also added a theory of liability under the Labor Law, which the Second Department held are not “technical” in nature and not permitted as late-filed amendments under General Municipal Law § 50-e(6).  Moreover, the Second Department held Ahmed’s motion would prejudice NYC Housing Authority by depriving it of the opportunity to promptly and meaningfully investigate the claim.
In addition, the Second Department held the trial court should have granted NYC Housing Authority’s motion on the ground that the notice of claim was inadequate because Ahmed’s original one did not sufficiently provide NYC Housing Authority of the relevant facts or legal theories supporting Ahmed’s claims to enable it to promptly and adequately investigate the allegations at issue, resulting in prejudice.  Thus, Ahmed’s complaint was dismissed.

PRACTICE POINT:  While the courts are lenient (at least that is the opinion of defendant attorneys) in the granting of leave to amend and file late notices of claim, where, as here, the entire fabric of the original notice of claim is altered the court will stand firm and not allow such an alteration.  This is a work of caution to anyone filing a notice of claim, like in carpentry, measure twice and cut once or in legal terms, analyze all potential claims and include them all, you can always not plead a claim when it comes time to do the Summons and Complaint, but you can’t add claims after the fact.

DeSimone v City of New York
July 3, 2014
Appellate Division, First Department

DeSimone filed this common-law negligence and Labor Law §§ 241(6) and 200 action against various defendants, including the City of New York, alleging that he tripped and fell on a jobsite.  DeSimone sued defendant Hillside for the placement of steel handrails in an area of the fifth floor of the subject building, causing him to trip over them.  DeSimone claimed defendant Danco was liable for inadequate temporary lighting in the area.

Defendants moved to dismiss the § 241(6) claim.  Defendants Hillside and Danco also moved to dismiss the common-law negligence claims against them.  Defendants DANSY and Bovis also moved for a conditional order for contractual indemnification against O’Kane.  The trial court granted defendants’ motion to dismiss the § 241(6) claim on the ground that DeSimone was not covered under the statute.  The trial court dismissed the negligence claims against Hillside and Danco, and granted the conditional order for contractual indemnification.

Labor Law § 241(6) (JAE)

The appellate division reversed finding that the trial court improperly dismissed the Law § 241(6) claim on the ground that plaintiff was not covered under the statute.  The court pointed to plaintiff’s testimony that he was an onsite project manager, employed by one of multiple general contractors on the subject construction project, whose job pertained to financial issues such as billing of subcontractors and revenue projections for the project.  He also testified that he tripped and fell in a vestibule he was walking through, intending to conduct a visual inspection of a condition alleged by O’Kane to support a back charge for “additional work,” in order to determine whether this claim was substantiated. Thus, plaintiff was not merely working in a building that happened to be under construction.  Rather, his job duties, including the inspection he was conducting at the time of the accident, were contemporaneous with and related to ongoing work on the construction project.  Thus, plaintiff was covered under the statute even though he did not perform the “labor-intense aspects of the project”

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

The First Department held that the trial court properly dismissed plaintiff's common-law negligence and Labor Law § 200 claims against defendants Hillside and Danco.  Plaintiff seeks to hold Hillside liable for the placement of steel handrails in an area of the fifth floor of the subject building, causing him to trip over them. He seeks to hold Danco liable for inadequate temporary lighting in the area. However, both of these defendants met their burden by submitting evidence showing that they had no authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition.

The deposition testimony of project managers for Hillside and third-party defendant PII, LLC established that Hillside, a steel subcontractor, merely manufactured steel handrails and delivered them in a truck, which a Hillside driver would park outside the building as PII employees unloaded them. The remaining work to be done with these products, including their placement and storage in the building, was delegated by Hillside to PII pursuant to their subcontract.

Similarly, Danco met its burden by submitting testimony and documentary evidence indicating that it was retained by O'Kane, the prime electrical contractor, merely to perform the initial installation of temporary lighting, which was completed on the fifth floor well before the accident occurred. According to the relevant testimony, Danco had no continuing responsibility for maintaining or replacing the temporary lighting. Plaintiff’s submission of business records referring to Danco's work repairing damaged wires on the fifth floor nine days before the accident, and on nearby floors on the subsequent days leading up to and including the date of accident were insufficient to raise an issue of fact as there is no indication that any such repairs were connected to the temporary lighting.

Indemnity Issues in Labor Law (SEP)

The indemnification clause in the contract provided O’Kane would respond where there were injuries “caused by, resulting from, arising out of, or occurring in connection with the execution of the Work.”  Where it is clear that the incident was “caused by or occurring in connection with” O’Kane’s work, the clause was triggered.  In addition, the Court noted that because the question of DASNY’s negligence remained outstanding, an award of conditional contractual indemnification was appropriate at this stage in the proceeding.

 

Bish v Odell Farms Partnership
July 3, 2014
Appellate Division, Fourth Department

Plaintiff, a cement truck driver, sustained injury while cleaning the truck on property owned by defendant, a dairy farm operator.  Defendant hired plaintiff’s employer, a cement supplier, to deliver cement to the farm for the construction of a bunk silo.  After delivering the cement to the farm using his employer’s truck, plaintiff drove the truck to an area of the farm next to a ditch to wash it out.  Plaintiff climbed a ladder permanently affixed to the truck and washed out the truck.  As he was descending the ladder, he slipped on a wet rung and fell backwards into the ditch.

Plaintiff filed this Labor Law action.  He testified that had he not been injured, he would have delivered additional loads of concrete to the farm for the silo.  He also testified that, in order to put a second load of cement in the truck, it had to be washed out after the first load was delivered.  As relevant here, defendant moved for summary judgment to dismiss the § 240(1) and § 241(6) claims, arguing that plaintiff’s activity at the time of his injury was routine maintenance.  The trial court denied defendant’s motion.  Defendant appealed.

Labor Law § 240(1) (DRA)

Justices Smith, Peradotto, Sconiers and DeJoseph held that plaintiff was not engaged “in the erection, demolition, repairing, altering, painting, cleaning or pointing” of a “building or structure” within the meaning of § 240(1).  Rather, he was engaged in routine maintenance of the cement truck, which is not a protected activity.  Further, the majority agreed with defendant that § 241(6) likewise does not apply here because plaintiff was not engaged in construction work within the meaning of the statute when he fell.   

The majority Justices declined to adopt Justice Whalen’s view that this case is distinguishable from Koch v E.C.H, Holding Corp. because plaintiff there was “merely a delivery truck driver” while there is evidence here that plaintiff operated the machinery of the cement truck to assist in the pouring of the concrete as part of the silo.  The majority essentially held that plaintiff’s actions in washing out the truck were unrelated to the erection of the silo.

According to Justice Whalen’s dissent, there was evidence that plaintiff was on a “continuous loop” where he would bring a load to the farm, unload it and then wash it out so he could travel to get another and return to the farm and repeat the process.  Although Justice Whalen did not agree with the trial court’s holding that plaintiff was an integral and necessary part of the construction work being performed and therefore was protected by § 240(1), Justice Whalen believed there were questions of fact regarding whether plaintiff was engaged in the erection of a building or structure under § 240(1) and whether plaintiff was engaged in construction work under § 241(6) sufficient to deny defendant’s motion regarding both claims. 

PRACTICE POINT:  The Fourth Department has drawn a line between the overall project and the specific task the plaintiff was involved in at the time of his injury to determine if the plaintiff is covered by the labor law.  Here they determined that the task was routine maintenance and thus not a covered event.  This case follows the Koch decision from the Second Department and is interesting to me as the Fourth Department has traditionally followed a more liberal reading of the labor law to include all activities related to the overall project as opposed to a more careful examination of the specific task the plaintiff was engaged in at the time of the accident.

Foots v Consolidated Bldg. Constrs., Inc.
July 3, 2014
Appellate Division, Fourth Department

Foots allegedly was injured when he drove a forklift over a plywood-covered pit, constructed by defendant Consolidated Building, in the floor of a building owned by defendant 60 Grider Street during the course of his employment with the lessee, Sodexho.  Pursuant to the lease agreement, Grider was responsible for making structural improvements and repairs to the long-vacant and dilapidated building, and Sodexho was responsible for installing equipment needed to operate an industrial laundering facility.   Grider hired defendant RCM to manage the renovation project, and subcontracted with Consolidated to construct four large pits, approximately 10 feet deep, 6 feet wide, and 10 feet long, in the floor of the facility at Sodexho's direction, to serve as repositories for linens.  

Sodexho began its laundering operations during the renovation project, and the absence of a suspended "monorail system" required Sodexho employees to manually push large laundry carts across the facility.  It was therefore necessary to cover the pits until the monorail system was installed.  Following consultation with Sodexho representatives, Consolidated constructed wooden frames that it placed in the pits and then covered with three-quarter-inch plywood, which was flush with the floor.

Grider moved for summary judgment dismissing Foots’ common-law negligence and Labor Law §§ 240(1), 241(6) and 200 claims, and also moved against Consolidated seeking a conditional order of contractual and common-law indemnification.  Consolidated likewise moved to dismiss Foots’ complaint, and Foots moved for partial summary judgment on his § 240(1) claim.  The trial court denied Grider’s and Foots’ motions, but dismissed Consolidated from the case.

Labor Law § 240(1) (DRA)

To fall under the protection of Labor Law § 240(1), “the task in which an injured employee was engaged must have been performed during the erection, demolition, repairing, [or] altering . . . of a building or structure” or must have “involve[d] . . . such activities.”  Here, the Fourth Department held the trial court properly denied Grider’s and Foots’ respective motions because the parties’ submissions raise an issue of fact whether Foots himself was “altering” or making a “significant physical change to the configuration or composition of the building or structure” at the time of the injury.  The record was not clear whether Foots was in the process of simply moving a “towel folder,” which would not provide protection from the statute, unless that activity “was … ancillary” to the ongoing renovation work or whether he was removing an old machine weighing 1,000 pounds and then installing and securing to the cement floor a new machine as a replacement, which would afford him protection under the statute.

With respect to Foots’ claim that the trial court erred in dismissing Consolidated from the case, the Fourth Department held Consolidated established entitlement to summary judgment by submitting evidence that it had completed its subcontract work and was not at the work site at the time of Foot’s injury.

PRACTICE POINT:  This case gives a great summary of what is necessary for a task to be considered an alteration.  This goes back to the Joblon case where the Court of Appeals defined alteration a "significant physical change to the configuration or composition of the building or structure".  Thus, just moving an existing machine from one point to another would not qualify but removing an old machine and installing a new machine would qualify. 

Labor Law § 241(6) (JAE)

The same analysis that applied to § 240(1), applied to § 241(6).

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

The Fourth Department held that Labor Law § 200 is not limited to construction work and that the statute encompasses plaintiff's normal duties as part of Sodexho's maintenance staff. Inasmuch as plaintiff's section 200 claims relate to an allegedly defective or dangerous condition of the work site, 60 Grider was required to establish that it did not control the work site and that it lacked actual or constructive notice of the condition.  60 Grider failed to meet its burden with respect to either issue. Further, the record establishes that there is a question of fact as whether 60 Grider, through its agent, RCM, exercised control over the work site and had notice of the allegedly dangerous condition, thereby precluding summary judgment to 60 Grider as to Labor Law § 200 and common-law negligence

Defendant Consolidated was entitled to summary judgment on these claims however as it submitted evidence that it had completed its work and was not at the work site at the time of plaintiff's injury; and, that as a subcontractor, it did not have the authority to supervise or control the work that caused the plaintiff's injury. By merely submitting invoices that demonstrated that Consolidated was present at the work site sometime after the accident, plaintiff did not raise an issue of fact whether Consolidated had the requisite authority to supervise or control the work site or the work that resulted in plaintiff's injuries.

Indemnity Issues in Labor Law (SEP)

In challenging the trial court’s denial of its motion for contractual indemnification against Consolidate, the Appellate Division noted that Grider failed to establish that Consolidated was negligent which, importantly, was required by the terms of the contract.  In addition, Grider’s motion for common law indemnification failed for the same reason.

 

Farruggia v Town of Penfield
July 3, 2014
Appellate Division, Fourth Department

Defendant Town of Penfield hired Farruggua’s employer to perform sidewalk and paving work on property owned by the Hershey defendants.   Farruggia was parking a backhoe in the “landing area” when it rolled or tipped into a ravine and allegedly sustained injuries.  The Hershey defendants and the Town moved for summary judgment dismissing the complaint, and Farruggia moved for partial summary judgment on his Labor Law § 240(1) claim and to amend his bill of particulars to assert a violation of 12 NYCRR 23-9.4 (c) for their Labor Law § 241(6) claim against the Town.  The trial court denied the Town's motion for summary judgment, granted the Hershey defendants' motion for summary judgment, and denied that part of Farruggia’s motion for partial summary judgment.  The trial court also granted Farruggia’s motion for leave to amend his bill of particulars.  The Town and Farruggia appealed.

Labor Law § 240(1) (DRA)

The Fourth Department (majority of Scudder, Centra, Peradotto, and Lindley) agreed with the Town that its motion should have been granted because the Town is not an “owner” for purposes of the Labor Law.  “It is well settled that ‘the term owner’ is not limited to the titleholder of the property where the accident occurred and encompasses a person who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his or her benefit.” 

Here, the incident occurred well outside of the Town's right-of-way, the Town had no other interest in or legal authority over the landing area, which was located entirely on the Hersheys' private property and the landing area was not part of the construction site.  The Town established it was Mr. Hershey, not the Town, who gave Farruggua permission to park in the landing area; the Town had no authority to grant such permission to Farruggua; and Mr. Hershey directed Farruggua where to park.  Moreover, the Town established that it was not necessary for Farruggua to park the backhoe in the landing area.  The Town provided Farruggua with parking in a municipal garage, which was located a few miles from the work siteFarruggua, however, testified at his deposition that he chose to use the landing area because it was closer to the work site and more “convenient” to do so.

Additionally, the Fourth Department agreed with the Town that Farruggua’s incident did not involve “an elevation-related risk of the kind that the safety devices listed in 240(1) protect against.”  Thus, Farruggua’s incident was “not within the class of hazards against which Labor Law § 240(1) was intended to guard.”

Justice Whalen’s dissent argues that the Town satisfied the definition of “owner” as it had an undisputed property interest (the right of way for the project) and fulfilled the role of owner by contracting for the sidewalk replacement work.  It was undisputed the backhoe was regularly parked at the landing area overnight, to be used in the construction project the next day.  Based on this fact, Justice Whalen distinguishes this case from Sanzone v City of Rome because in that case the incident occurred not on property that was part of the construction project but at a parking leased for the sole purpose of storing equipment and materials.

Justice Whalen further argues the Town did not meets its burden of establishing that parking the backhoe at the edge of a steep ravine did not involve an elevation-related risk that called for the placement of a safety device to shield Farruggua from the danger arising from the significant elevation differential.  Thus, Justice Whalen held an issue of fact existed as to whether Farruggua’s injuries were proximately caused by the lack of a safety device of the kind required by the statute.

PRACTICE POINT:  This is the second case this month (see Bish above) from the fourth where Justice Whalen has taken a liberal view of the labor law and dissented finding an extended scope for 240(1).  We will continue to monitor the leanings of the respective justices in all departments.  In this case the finding that an owner is either the titled owner or the entity who contracted for the work for their own benefit does not apply to the Town but it is very important to explore what make a defendant an appropriate defendant in a case to not only evaluate your clients potential liability but also to see if there are any additional potential defendants out there to share the burden. 

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

With respect to the Labor Law § 200 and common-law negligence causes of action against the Town, it is well settled that liability for a dangerous condition on property is predicated upon occupancy, ownership, control or a special use of the premises.  The existence of one or more of these elements is sufficient to give rise to a duty of care, but where none is present, a party cannot be held liable for injury caused by the defective or dangerous condition of the property.  Here, the Town met its initial burden by establishing that it did not occupy, own, or control the accident site and did not employ it for a special use, and thus did not owe plaintiff a duty of care. Plaintiffs failed to raise a triable issue of fact in opposition and the claim against the Town was dismissed.   

The Fourth Department, however, held that the trial court erred in dismissing the Labor Law § 200 and common-law negligence causes of action against the Hershey defendants. It is undisputed that the Hershey defendants owned and controlled the property where the accident occurred.  The Fourth Department concluded that these defendants failed to establish as a matter of law that they lacked actual or constructive notice of the allegedly dangerous condition on their property.

Desena v North Shore Hebrew Academy
July 9, 2014
Appellate Division, Second Department
Desena was working as a masonry laborer on a project to build a school on property owned by defendants North Shore Hebrew Academy.  Desena allegedly was injured when a heavy stone block toppled off a pallet and struck his foot while he was standing near the pallet.  According to Desena, the ground underneath the pallet was uneven and covered with ice, and the blocks were stacked vertically on the pallet and not secured onto it in any manner before the incident.  Desean further claims that immediately before the incident, a front loader was being used to remove snow nearby causing a strong vibration that jarred the blocks on the pallet.
Deseana filed this action for violations Labor Law §§ 240(1), 241(6) and 241-a against North Shore and the construction manager, NSHA, who thereafter filed their third-party action against GIG, the excavation contractor seeking contractual and common-law indemnification, contribution, and damages for breach of contract related to an alleged failure to procure insurance.  GIG filed its fourth-party action against the Lizza defendants, the paving contractors, seeking contribution and indemnification.  The Lizza defendants then filed its fifth-party complaint against Corinthian, the stone supplier, seeking the same relief as GIG. 
All defendants moved for summary judgment dismissing the claims against them, and Desena cross-moved for summary judgment on his § 240(1) claim.   The trial court denied defendants’ motion to dismiss the § 240(1) and denied Desean’s cross-motion regarding same.  The trial court also denied the various defendants’ third-party motions to dismiss.  All parties appealed.
Labor Law § 240(1) (DRA)
The Second Department affirmed the trial court’s decision to deny defendants’ motion to dismiss as they failed to establish prima facie entitlement to judgment as a matter of law because they failed to show Desena’s injuries resulted from a general hazard encountered at a construction site and were not “the direct consequence of a failure to provide” an adequate device of the sort enumerated in the statute.  Those devices are intended to protect “against a risk arising from a physically significant elevation differential” and defendants failed to establish that the incident was not the result of a failure to provide a protective device contemplated by the statute.
The Second Department further held the trial court should have granted defendants’ cross-motion seeking dismissal of the 241-a claim, which relates to those working in or at elevator shaftways, hatchways, and stairwells because the facts in this case did not apply to that statute.
PRACTICE POINT:  This falling object case involves a block on a pallet which was not being loaded onto or taken off of the pallet and thus it was not possible for the defendant to argue that the block did not need to be secured.  Recall that once the plaintiff proves that the object fell and caused injury based on the application of the force of gravity the burden shifts to the defendant to prove that the accident was not caused by the lack of an appropriate safety device which would have prevented the block from falling and injuring the plaintiff.
Labor Law § 241(6) (JAE)

However, the Second Department held that the trial court should have granted that branch of the defendants’ cross motion dismissing the causes of action alleging violations of Labor Law § 241(6).  The court reasoned that the Industrial Code provisions cited by the plaintiffs as predicates for those causes of action were inapplicable. The accident occurred in an open area at a worksite, not a “passageway, walkway, stairway or other thoroughfare,” and as such, 12 NYCRR 23-2.1 was not applicable.  Similarly, 12 NYCRR 23-1.7(e)(2), which requires working areas, such as a floor, to be kept clear of debris and “scattered tools and materials . . . insofar as may be consistent with the work being performed,” could not be applied.  Also, 12 NYCRR 23-2.1(a)(2), which provides, in relevant part, that “[m]aterial and equipment shall not be stored upon any floor, platform or scaffold in such quantity or of such weight as to exceed the safe carrying capacity of such floor, platform or scaffold,” and that “[m]aterial and equipment shall not be placed or stored so close to any edge of a floor, platform or scaffold as to endanger any person beneath such edge,” was inapplicable here. 

Indemnity Issues in Labor Law (SEP)
With respect to Lizza’s motion to dismiss the indemnification claims against GIC, the Court noted that Lizza established that the only liability facing GIC was their own negligence.  Where a party cannot be indemnified for its own negligence, it follows that they have no basis for an indemnity claim without the prospects of vicarious liability. 
Claims for common law indemnification against Lizza were dismissed upon Lizza establishing that they were not responsible for the incident.  Common law indemnity claims against Corinthian were dismissed for the very same reason. 
Finally, GIC’s motion to dismiss contractual indemnity claims were dismissed when GIC was able to establish that there was no viable contract between it any other party seeking indemnity protections.

Caiazzo v Mark Joseph Contr., Inc.
July 16, 2014
Appellate Division, Second Department
Caiazzo allegedly was injured while installing an air conditioning system in a newly constructed extension at a house owned by defendant Julia Cohen and occupied in part by her daughter, Ana Reyes.  According to Caizzo, Julia hired defendant Mark Joseph Contracting (“MJC”) to construct the extension and hired Caiazzo’s employer to install the central air conditioning system.  Caiazzo, in his complaint and at his deposition, claimed that as he was stepping out of the house through an open and elevated doorway, he fell when a wooden spool, which had been used by other workers as a makeshift step, gave way.
Caiazzo filed this action alleging common-law negligence and violations of Labor Law §§ 240(1), 241(6) and 200.  MJC moved for summary judgment to dismiss the complaint, and Julia and Ana cross-moved for the same relief.  The trial court dismissed the complaint against MJC, granted Julia’s cross-motion to the extent of dismissing the §§ 240(1) and 241(6) claims but denied her motion regarding the § 200 and common-law negligence claims.  Caiazzo appealed.

Labor Law § 240(1) (DRA)
The Second Department affirmed the trial court’s decision to dismiss the complaint against MJC because he demonstrated that it was neither a general contractor nor an agent of the owner to Caiazzo’s work.  With respect to Julia and Ana’s cross-motions, the Second Department noted that “Labor Law §§ 240(1) and 241(6) specifically exempt ‘owners of one and two-family dwellings who contract for but do not direct or control the work.’”  A determination as to whether the exemption applies in a particular case turns on the nature of the site and the purpose of the work being performed, and must be based on the owner’s intentions at the time of the injury.  Here, the trial court properly concluded that Julia and Ana were entitled to summary judgment on the §§ 240(1) and 241(6) claims by demonstrating the premises were improved by a one- or two-family dwelling and that Julia did not direct or control the work being performed.
PRACTICE POINT:  Always carefully review any and all contracts to see if any of the parties have the authority to control the work of the plaintiff as that alone can make them an appropriate defendant in a labor law action.  The single or double family home owner exclusion has been reviewed many times but it never hurts to remember that it only applies where the owner did not control the work and the structure is residential in nature at least to the extent that the work was being done. 
Labor Law § 200 and Common-Law Negligence(VCP)

Where, as here, the plaintiff's accident arose out of a dangerous condition at the work site, a contractor may be held liable in common-law negligence and under Labor Law § 200 if it had control over the work site and actual or constructive notice of the dangerous condition. Here, Mark Joseph Contracting established entitlement to summary judgment by demonstrating that it did not have control over the work site, and the plaintiff failed to raise a triable issue of fact. Although it is disputed as to whether Mark Joseph Contracting constructed the door through which the plaintiff was exiting at the time of his accident, and whether other employees used the wooden spool to enter and exit the premises, the Supreme Court erred in concluding that Mark Joseph Contracting could be held liable to the plaintiff for common-law negligence by virtue of creating a “dangerous condition” consisting of a doorway without access steps or stairs, inasmuch it was not hired to build any exterior stairway. Accordingly, the Labor Law § 200, and common-law negligence claims against MLC should be dismissed.

Since the plaintiff's accident arose out of a dangerous condition at the work site, liability for a violation of Labor Law § 200 and common-law negligence could only be imposed on Coen, as the property owner, if Coen created the condition or had actual or constructive notice of it and failed to remedy the condition within a reasonable amount of time.  Here, the Supreme Court properly concluded that Coen and Reyes failed to establish their prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 200 and common-law negligence causes of action insofar as asserted against Coen, as they failed to eliminate all triable issues of fact as to whether Coen had actual or constructive notice of a dangerous condition on the premises and failed to remedy that condition within a reasonable amount of time.

Perla v Daytree Custom Bldrs., Inc.
July 16, 2014
Appellate Division, Second Department

Perla fell off the roof of a house and thereafter received Workers’ Comp. benefits from his employer.  Perla and his wife, suing derivatively, filed this Labor Law § 240(1) action, and moved for summary judgment on that claim pursuant to CPLR § 3126 to strike defendant’s answer for failure to provide discovery or, alternatively, to strike its affirmative defense based on the exclusivity provision of the Workers’ Comp. 

The trial court denied Perla’s motion regarding his § 240(1) claim, finding a triable issue of fact as to whether defendant was an alter ego of Perla’s employer, and denied his motion under the CPLR on the ground that Perla failed to establish that defendant’s failure to comply with discovery was willful or contumacious.  Perla and his wife (“plaintiffs”) appealed.

Labor Law § 240(1) (DRA)

The Second Department held plaintiffs established their entitlement to judgment as a matter of law on the § 240(1) claim by showing defendant failed to provide to Perla a proper safety device and that this failure was a proximate cause of his injuries.  However, the Second Department also held defendant raised a triable issue of fact as to whether it was an alter ego of Perla’s employer, which would relegate plaintiffs to the exclusive remedy provided by Workers’ Comp. §§ 11 and 29(6).  Thus, the trial court properly denied plaintiffs’ motion for summary judgment.

The Second Department also affirmed the trial court’s denial of plaintiffs’ motion to strike defendant’s answer or first affirmative defense under the CPLR “since there was no clear showing that the defendant’s failure to comply with discovery demands was willful or contumacious.”  Further, the Second Department noted that plaintiffs failed to submit an affirmation of good faith indicating that efforts had been made to resolve the purported discovery dispute prior to engaging in motion practice, as required by 22 NYCRR 202.7(a)(2).

PRACTICE POINT:  The “Alter ego” defense is based in Comp law section 11.  To obtain the benefit of the exclusive remedy defense an entity must establish that it is the alter ego of the plaintiff employer by demonstrating that one of the entities controls the other or that the two operate as a single integrated entity. Once that is established any claim against them by the plaintiff is precluded by the exclusive remedy provisions of section 11.

Jorquera v Fannwood Estates, LLC
July 16, 2014
Appellate Division, Second Department

Jorquera allegedly fell off a ladder while preparing to paint a stairwell in a building owned and managed by defendants/third-party plaintiffs, Fannwood Estates and Woods Management (collectively “defendants”).  At Jorquera’s deposition in his suit against defendants, he testified he was employed by a contractor, third-party defendant W.B., at the time of the incident.  W.B.’s owner, third-party defendant Briceno, denied at his deposition that Jorquera ever worked for W.B.  Thereafter, defendants filed their third-party action against W.B. and Briceno for contribution and common-law indemnification, as well as breach of contract for failure to procure insurance. 

W.B. and Briceno moved to dismiss the third-party complaint contending they were entitled to judgment as a matter of law, regardless of whether they were plaintiff’s employer.  Under Jorquera’s version, they were his employer and there was no allegation of “grave injury”; thus, the third-party claims were barred by Workers’ Comp. § 11.  W.B. and Briceno further argued that under Briceno’s version of the facts, Jorquera was not W.B.’s employee; thus, the sole cause of the action against defendants which had survived prior motion practice, alleging a violation of § 240(1), was not viable because Jorquera was not employed within the meaning of the Labor Law at the time of the incident.  The trial court denied W.B. and Briceno motions to dismiss. 

Labor Law § 240(1) (DRA)

The Second Department affirmed the trial court’s decision because W.B. and Briceno did not establish their prima facie entitlement to judgment as a matter of law since a triable issue of fact existed as to whether Jorquera was their employee.  Accordingly, W.B. and Briceno were not entitled to dismissal of the third-party complaint under Workers’ Comp. § 11.  Denial of summary judgment was also warranted as W.B. and Briceno failed to show that even under Briceno’s version, Jorquera was employed by an entity other than W.B. within the meaning of the statute at the time of the incident, and they further failed to establish that they were not contractually obligated to procure insurance naming the defendants as additional insureds. 

PRACTICE POINT:  The plaintiff must, in all instances, be “so employed” and not a volunteer on site.  Here the court found that the defendant had not established that if they did not employee the plaintiff that he was not employed by someone and thus he remained a viable plaintiff.  This is not a surprise where the court had also found a question of fact whether the plaintiff was employed by the moving party.

Hucke v Suffolk County Water Auth.
July 16, 2014
Appellate Division, Second Department

Hucke allegedly fell off scaffolding he was using, and moved for summary judgment on his Labor Law § 240(1) claim against defendant Suffolk County Water Authority.  The trial court denied the motion, and Hucke appealed.

Labor Law § 240(1) (DRA)

The Second Department held that Hucke failed to establish prima facie entitlement to summary judgment because his submissions demonstrated the existence of a triable issue of fact, including that his fall was caused by defendant’s failure to provide guardrails on the scaffold or, rather, by the sudden loss of consciousness he experienced just before he fell.  Thus, the trial court properly denied Hucke’s motion.

PRACTICE POINT:  Very short but interesting case.  Here the court notes that the plaintiff did not establish a prima facie case, not that the defendant was able to refute the contentions of the plaintiff.  That indicates that it was not a sole proximate cause defense which prevented the plaintiff from obtaining Summary Judgment but rather that the plaintiff was not able to establish that the failure of the safety device was a proximate cause of the fall and subsequent injury.  This is a unique fact pattern, as the role of the safety rails on a scaffold is precisely to prevent the worker from falling off the scaffold and here they failed to fulfill that function.  This is a case to keep in mind, this fact pattern will come up again and when it does being the one who remembers the case will be helpful.

 

Pittman v S.P. Lenox Realty, LLC
July 23, 2014
Appellate Division, Second Department

The decent died after sustaining severe burns when a halogen lamp allegedly ignited the liquid polyurethane he was using to refinish the floors in an apartment.  The apartment building was owned by S.P. Lennox Realty, LLC, managed by Rubbro and Richards worked as a superintendent (collectively the “Realty defendants”).  Pittman’s decedent moved for summary judgment on his § 241(6) claim predicated on Industrial Code (NYCRR) §§ 23-1.7(g), 12-1.6(a)(3) and 12-1.8(a)(1) and (c)(2)(ii) and (iv).  The Realty defendants cross-moved, and the trial court granted the motion.

Labor Law § 241(6) (JAE)

The court determined that the Realty defendants met their prima facie burden.  Industrial Code (12 NYCRR) § 23-1.7(g) provides, in relevant part, “the atmosphere of any unventilated confined area . . . where dangerous air contaminants may be present or where there may not be sufficient oxygen to support life shall be tested by the employer, his authorized agent[,] or by a designated person before any person is suffered or permitted to work in such area.”  This section makes any unventilated confined area where dangerous air contaminants may be present subject to the provisions of part 12 [of the Industrial Code].”   The plaintiff relied upon Industrial Code (12 NYCRR) §§ 12-1.8(c)(2)(ii) and (iv), which pertain to lighting requirements in areas where flammable liquids are used, and sections 12-1.8(a)(1) and 12-1.6(a)(3), which set forth mechanical ventilation requirements that must be satisfied in areas where flammable liquids are used in an unprotected and exposed state.

In affirming the trial court’s order, the Second Department found that the Realty defendants demonstrated that the alleged air contaminants were not present prior to the decedent's work and, therefore, that Industrial Code (12 NYCRR) § 23-1.7(g) was not applicable under the circumstances here.  In addition, the Realty defendants established, prima facie, that the remaining Industrial Code provisions relied upon by the plaintiff were inapplicable, as the accident did not occur in an “unventilated confined area,” such as a sewer, pit, tank, chimney, or space with restricted means of egress “where dangerous air contaminants may be present or where there may not be sufficient oxygen to support life.”  In opposition, plaintiff failed to raise a trial issue of fact.

Adika v Beth Gavriel Bukharian Congregation
July 23, 2014
Appellate Division, Second Department

Defendant hired Adika to paint decorative images on large wooden panels, and to install these panels on defendant’s walls of a yeshiva.  Adika was installing one of the painted wooden panels at the yeshiva when he allegedly fell off a ladder and sustained injuries.  Defendant moved for summary judgment dismissing the Labor Law § 240(1) claim, arguing Adika was not engaged in a protected activity under the statute.  Adika cross-moved for summary judgment on that claim, and the trial court granted Adika’s cross-motion.  Defendant appealed. 

Labor Law § 240(1) (DRA)

The Second Department reversed the trial court’s decision as defendant met his burden of prima facie showing that Adika was not engaged in an act protected under the statute.  In opposition, Adika failed to raise a triable issue of fact.

PRACTICE POINT:  The court seems to follow the same reasoning as the billboard sign cases, that the activity is not covered as it is merely the installation of a decorated panel and not an enumerated activity.  Now had the plaintiff been painting building the structure as opposed to simply attaching the panel to it the result would have been different and the activity covered.  The decision does not address the alteration question which makes me wonder if that was raised.

Pena v Varet & Bogart, LLC
July 30, 2014
Appellate Division, Second Department

Pena allegedly was injured when he fell from a 20-foot ladder while washing the windows of a four-story hostel owned by defendant Varet & Bogart and operated by defendant First Consul.  Pena was employed by nonparty Felis Lynx, which provided maintenance services to the hostel.  Pena’s incident occurred after he had been directed by the hostel’s manager to clean the external kitchen windows.  Defendants’ moved for summary judgment dismissing Pena’s complaint alleging a violation of Labor Law § 240(1) on the ground that Pena was washing the windows as part of routine maintenance work.  Pena cross-moved on that claim arguing he had not been engaged in routine maintenance or household window washing and had not been provided with proper protection while performing work at an elevation.  The trial court granted defendants’ motion and denied Pena’s cross-motion.  Pena appealed.   

Labor Law § 240(1) (DRA)

The Second Department reversed the trial court’s decision as defendant failed to meet its burden of prima facie showing that Pena was not engaged in a protected activity at the time of his incident.  Other than commercial window cleaning, which is afforded protection pursuant to the statute (see Swiderska v New York Univ., 10 NY3d 792, 793; Probst v 11 W. 42 Realty Invs., LLC, 106 AD3d 711, 712), whether an activity is considered “cleaning” for the purpose of § 240(1) depends on certain factors.

An activity is not considered “cleaning” when (1) it is performed on a routine or recurring basis as part of the ordinary maintenance and care of commercial premises, (2) does not require specialized equipment or expertise, (3) usually involves insignificant elevation risks comparable to those encountered during typical domestic or household cleaning, and (4) is unrelated to any ongoing construction, or renovation.  “Whether [an] activity is cleaning' is an issue for the court to decide after reviewing all of the factors. The 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; painting, alteration, or repair project.

The Second Department held defendants’ evidence failed to establish that Pena’s activity could not be characterized as “cleaning” under the statute.  Further, the evidence did not definitively demonstrate that Pena was performing a routine task or that it was a task involving an insignificant elevation risk comparable to those risks inherent in typical household cleaning.   Since Pena’s submissions failed to eliminate all triable issues of fact as to whether he was engaged in a covered activity at the time of the incident, the trial court properly denied Pena’s cross-motion for summary judgment on the issue of liability. 

PRACTICE POINT:  Note that the court differentiates between a plaintiff sent to clean windows by maintenance company, as in this case not necessarily a covered event, and a plaintiff working for a commercial window washing company, who would be afforded the protection of 240(1).  The defendant did not have sufficient evidence that the task was a routine maintenance to have its motion granted, but recall that in area of the law, a question of fact is often a very good result for a defendant.  Interestingly the court cites the framework for “cleaning” from Soto, the Court of Appeals case from last year, (“An activity is not considered "cleaning" when (1) it is performed on a routine or recurring basis as part of the ordinary maintenance and care of commercial premises, (2) does not require specialized equipment or expertise, (3) usually involves insignificant elevation risks comparable to those encountered during typical domestic or household cleaning, and (4) is unrelated to any ongoing construction, renovation, painting, alteration, or repair project”) but finds a question of fact in spite of the language from Soto where the court of Appeals hold that "Whether [an] activity is cleaning' is an issue for the court to decide after reviewing all of the factors. The 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".

 

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

Regulation § 23–9.5 involving “excavation machines” was held inapplicable where a tree being dragged by a bulldozer during tree removal operation was unexpectedly propelled upward, striking plaintiff (Lysiak v Murray Realty Co., supra).  
Regulation § 23–9.5(b) requiring that operators of excavating machines who may be exposed to overhead hazards be provided with “cab[s] or equivalent cover affording protection against such hazard[s]” held not limited to machines actually performing excavation work (Malloy v Madison Forty-Five Co., 13 AD3d 55, 786 NYS2d 433 [1st Dept 2004]).
Regulation § 23–9.5(c) requiring, among other things, that bucket of excavating equipment rest on ground when machine is not in use, held sufficiently specific to support a Labor Law § 241(6) cause of action (Webber v Dunkirk, supra).  Regulation § 23–9.5(c) held arguably applicable where backhoe operator continued to operate and move bucket through excavation site after plaintiff, who was going to sweep dirt into hole, signaled that he should stop (Benevento v Buffalo, 74 AD3d 1738, 902 NYS2d 864 [4th Dept 2010]).
Regulation § 23–9.5(c) requiring that excavating machines be operated only by designated persons, held inapplicable in action to recover for death of a worker who was fatally injured when he was pinned against a flatbed truck by outrigger of backhoe (Ferreira v City of New York, 85 AD3d 1103, 927 NYS2d 100 [2d Dept 2011]).  A genuine issue of material fact existed as to whether subcontractor’s employee was authorized to be on backhoe while it was in motion or operation for injuries plaintiff sustained when he fell off of backhoe and it ran over his foot (Scott v Westmore Fuel Co., Inc., supra).
Genuine issues of material fact existed regarding whether the backhoe being used to hoist T-connection was “in use” as required by regulation § 23–9.5(c), and stopped or parked under § 23–9.5(f) at the time the toe bucket of the backhoe descended into trench where worker was working and crushed worker (Mohamed v City of Watervilet, supra).
Regulation § 23–9.5(f) requiring the operator of any excavating machine shall not leave the controls of such machine until he has lowered the bucket or blade into firm contact with the ground or grade surface, held inapplicable to injury sustained while plaintiff was repairing subcontractor’s trenching machine, despite plaintiff’s claim that trenching machine was not properly secured prior to him undertaking repairs, as would amount to a violation, where plaintiff’s own testimony established that after the machine was moved from trenching area, he repositioned it on a flatter surface and partially embedded its saw blade teeth into the ground before turning it off (Allen v Telergy Network Services, Inc., 52 AD3d 1094, 860 NYS2d 299 [3d Dept 2008]).
Regulation § 23–9.5(g) requiring excavating machines “except for crawler mounted equipment” to sound a warning signal when backing up, held to exempt equipment mounted on crawlers instead of wheels (Millard v City of Ogdensburg, 300 AD2d 1088, 751 NYS2d 901 [4th Dept 2002]).  A genuine issue of material fact existed as to whether excavating machine which drove over worker’s foot was being used for excavation work, was equipped with a backup warning device, or was backing up at the time of the accident as required under regulation § 23–9.5(g) (Gonzalez v Perkan Concrete Corp., supra).
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