Labor Law Pointers

Volume III, No. 11
Wednesday, September 3, 2014

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

From the Editor:  

Do you have a situation, we love situations!  Big, small, strange, tricky, we love them all.
Welcome to the September edition of Labor Law Pointers.  My request for good pictures was answered by none other than my wife.  She was in Kenya for almost three weeks working on a mission at an orphanage where the concern should have been the complete lack of safety equipment.  In reality the concern was that of the twelve people that went there to help six caught malaria.   We were lucky, and she and my daughter were very careful not to have any exposed skin for the mosquitos to bite, and they came home healthy and happy.  That does not change the fact that when looking at their pictures of the construction site they were working on I almost had a stroke. 
There is really no way for me to count all the infraction visible in these pictures.  It is like a Highlights picture challenge where you look for the hidden objects, except that they are not very hidden here.  Notice that the plywood they used to pour the columns is black, that is because they use motor oil as a mold release to remove and reuse the plywood which is in very short supply.  That said there is no fall protection for the workers standing on a table stacked on top of another table as they pour five gallon buckets of concrete into the form to create columns which will support the second floor of the dormitory being built for the orphans.   Once they raise enough money they then intend to pour more columns, using the same method, and add a third floor.  As my wife learned to say, TIA or “this is Africa”.  It was a very rewarding experience for them, they accomplished a lot for the kids there, and I am eternally grateful to have them home healthy and safe.
This month’s edition has several interesting cases, reinforcing the authority standard to be an agent of the owner of general contractor. The Second Department has a case reinforcing the long standing rule that falling off the back of a flatbed trailer is not a labor law case.  We touch on the distinction between a motion to reargue and a motion to renew and the Fourth Department holds that stepping into a hole on a construction site is not the same as falling into an excavation an is not a violation. 
As always I invite you all to call, email or contact us any way your heart desires to ask questions, discuss the labor law or just talk for a while, we always welcome it.  We are also available for in-house training or seminars, summer is over and we are scheduling several training sessions with our friends from across the state.  Don’t forget that we have offices across the state from our main office in Buffalo to our offices in Albany and the New York City area.  We are available to handle any of your needs across the entire state.
Hope everyone had a great summer, courts are back in full swing now and we will have more decisions for the next several months.  Thanks for reading and see you all next month.
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.

Biscup v E.W. Howell, Co., Inc.
August 6, 2014
Appellate Division, Second Department

Biscup allegedly was injured when he jumped from the back of a flatbed truck and slipped in mud.  According to Biscup, the flatbed truck was four-to-five foot above the ground.  He filed this common-law negligence and Labor Law §§ 240(1), 241(6), 200 action.  Defendants’ filed their summary judgment motions to dismiss the §§ 240(1) and 241(6) claims, and third-party plaintiff Howell also moved for summary judgment on its contractual claim against third-party defendant Super Steel.  The trial court denied all the motions.

Labor Law § 240(1) (DRA)

The Second Department held that Howell and the third-party defendants established that Biscup’s § 240(1) claim should have been dismissed because a four-to-five foot descent from a flatbed trailer or similar surface does not present the sort of elevation-related risk that triggers the statute’s protection.

PRACTICE POINT:  The case law has held for years that the bed of a flatbed trailer is not the type of elevated work surface upon which the Labor Law is intended to protect workers. 

Labor Law § 241(6) (JAE)

The appellate court likewise held that they established their prima facie entitlement to judgment as a matter of law dismissing the § 241(6) claim.  They showed that the Industrial Code provision relied upon by the plaintiff was inapplicable to the facts of this case. On appeal, the plaintiff conceded this point.

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

The Second Department held the trial court properly denied that branch of Howell’s motion seeking dismissal of Biscup’s common-law negligence and Labor Law § 200 causes of action based on allegations of a dangerous work site.  Howell failed to establish the absence of triable issues of fact as to whether it had control over the work site or constructive or actual notice of a dangerous condition, and whether it was free from negligence in the happening of the incident.

Johnson v City of New York
August 7, 2014
Appellate Division, First Department

Johnson claimed that when placing the ladder, he swept the area beneath it with his foot and checked for debris before making it to the fourth rung when the ladder jumped or slipped out beneath him.  Defendant Bovis Lend Lease’s (Bovis) superintendent testified that Bovis functioned as the “eyes and ears” of the property owner, City of New York (City) for the subject construction project, and it had broad responsibility under its contract to coordinate and supervise the work of Johnson’s employer. 

Johnson filed this Labor Law §§ 240(1) and 241(6) action against the City, who asserted cross-claims against Bovis.  The City filed its summary judgment motion for contractual and common-law indemnification, and the trial court granted the motion.  Bovis appealed.

Labor Law § 240(1) (DRA)

When work giving rise under § 240(1) has been delegated to a third-party, that third-party then obtains the concomitant authority to supervise and control that work, and becomes a statutory “agent” of the owner or general contractor.  Although a prime contractor, Tully, was labeled in its contract with the City as a “general contractor”, deposition testimony confirmed Bovis had authority to direct Tully’s work. 

PRACTICE POINT:  A contractor is an appropriate Labor Law defendant any time it has the authority to supervise, direct or control the work of the plaintiff, even if they do not exercise that authority.  This is why it is important to obtain all contracts and look for that language and to specifically ask that question to all defendants and potential defendants to see who may be an appropriate defendant. 

Indemnity Issues in Labor Law (SEP)

Since the indemnity provision requires Bovis to indemnify the City for Bovis's negligence "or from [its] failure to comply with any provision of this contract or of law," the City was entitled to full contractual indemnification for any violation of the Labor Law.

Krajnik v Forbes Homes, Inc.
August 8, 2014
Appellate Division, Fourth Department

Krajnik was in an attic checking a window installed on a vertical wall when he attempted to reach the window using a makeshift ladder.  The “ladder” was already in place and consisted or two boards nailed across the vertical framing member under the window.  Krajnik fell between the attic floor joists to the floor of the foyer below, alleged sustaining injuries.

Defendant Burchville, the general contractor, contracted with property owner Forbes to perform framing work on a new home.  Krajnik filed this Labor Law action, and Burchville moved to dismiss the complaint.  Krajnik cross-moved for partial summary judgment, and Forbes also moved on its cross-claim for conditional contractual and common-law indemnification or contribution against Burchville.  The trial court denied Burchville’s motion, granted Krajnik’s motion regarding Burchville, and granted Forbes’ motion against Burchville.   

Labor Law § 240(1) (DRA)

Labor Law §§ 240 (1) and 241(6), impose nondelegable duties that only apply to “contractors and owners and their agents.  Labor Law § 200 is a codification of “landowners' and general contractors' common-law duty to maintain a safe workplace.”  In the absence of any evidence that Burchville exercised any authority or control over the work site or the injury-producing work, the Fourth Department concluded Burchville was not a statutory agent of either an owner or general contractor under the Labor Law.

PRACTICE POINT:  What we have here is the mirror image of the Johnson case immediately above.  Here the contractor neither had the authority to supervise, direct or control the plaintiff’s work (thus not a contractor under the labor law) nor did they exercise such a supervision, direction or control (thus not an agent of the owner or General Contractor).  The same advice applies here as above, it is important to obtain all contracts and look for that language and to specifically ask that question to all defendants and potential defendants to see who may be an appropriate defendant.

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

The Fourth Department ruled that the trial court erred in granting that part of plaintiff's cross motion with respect to Burchville and in denying that part of its motion with respect to the Labor Law cause of action against it. Here, in the absence of any evidence that Burchville exercised any authority or control over the work site or the injury-producing work, we conclude that Burchville was not a statutory agent of either an owner or general contractor

However, that part of Burchville's motion with respect to the common-law negligence cause of action was properly denied as the plaintiff raised an issue of fact as to whether Burchville's employees negligently installed the makeshift ladder.  A subcontractor can face liability on common law negligence claim if the subcontractor created an unreasonable risk of harm that was a proximate cause of the plaintiff's injuries.

Indemnity Issues in Labor Law (SEP)

Due to the questions of fact abound in this case, the Appellate Division appropriately denied all motions for summary judgment on both contractual and common law indemnification.  Here, the indemnity provision between Forbes and Burchville only triggered with a finding of Burchville’s negligence.  With that very much in question, Forbes was not entitled to a finding of indemnity. 

Moreover, along those same lines, where Burchville’s negligence remained in doubt the court could also not properly grant dispositive relief to either party relative to Forbes common law indemnification claim.

Wrobel v Town of Pendleton
August 8, 2014
Appellate Division, Fourth Department

Wrobel allegedly injured his leg when he stepped into a hole in the ground while working for the general contractor at a construction project owned by defendant County of Niagara.  Wrobel claimed he stepped into the hole while carrying a pipe that he and coworkers intended to install in a trench.  He filed this common-law negligence and Labor Law §§ 240(1), 241(6) and 200 action against the County and its architect/engineer, and defendant Foit-Albert.  Defendants moved to dismiss the complaint, and Wrobel cross-moved for summary judgment on its Labor Law §§ 240(1) and 241(6) action.  The trial court granted Foit-Albert’s motion and dismissed the complaint against it, and denied the County’s motion and Wroble’s cross-motion, finding issues of fact for trial.  Wrobel appealed, and the County cross-appealed. 

Labor Law § 240(1) (DRA)

The Fourth Department noted at the outset that Foit-Albert met its burden in establishing that it was not liable as an agent of the County, i.e. it did not have supervision or control over the activity that caused Wrobel’s injury, or over the safety procedures employed at the site.  The Fourth Department further held that where, as here, a plaintiff falls into a hole while walking at ground level, plaintiff’s injury “is not caused by defendants’ failure to provide or erect necessary safety devices in response to elevation-related hazards; thus, the statute’s protections do not apply.  Therefore, the Fourth Department reversed the trial court’s decision and granted the County’s motion for summary judgment with respect to the § 240(1) claim. 

PRACTICE POINT: Once again, and that makes three in a row, the court addresses what is necessary to qualify as an appropriate Labor Law defendant.  Here the fourth again reiterates that to be the agent of the owner the defendant must exercise supervision, direction or control.  In addition, the fourth points out the difference between stepping into a simple hole on a construction site and falling into an excavation.  Stepping into a hole is not a covered event; falling into an excavation likely is. 

Labor Law § 241(6) (JAE)
12 NYCRR 23-4.2 (h) provides that “[a]ny open excavation adjacent to a sidewalk, street, highway or other area lawfully frequented by any person shall be effectively guarded [or covered].” Although that regulation is sufficiently specific to support his claim, the court found that plaintiff, as an employee at the work site, did not fall within the class of people intended to be protected by 12 NYCRR 23-4.2 (h).  As the District Court stated in Lamela v City of New York, 560 F Supp 2d 214, 226-227, the State Commissioner of Labor, by applying 12 NYCRR 23-4.2 (h) to areas “lawfully frequented by any person,” specifically “chose not to include the disjunctive class of persons employed therein.”  In other words, this section is for the benefit of lawful pedestrians, not workers. 
The Fourth Department did, however, find that the trial court properly deny that part of the County’s motion with respect to the Labor Law § 241 (6) claim insofar as it is based on the alleged violation of 12 NYCRR 23-1.7 (b) (1) (i), which provides that "[e]very hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing."  That regulation is sufficiently specific, and the Fourth Department has held that it applies to any " hazardous opening into which a person may step or fall . . . provided that [it is] one of significant depth and size.’”
Labor Law § 200 and Common-Law Negligence (VCP)

As for the architect/engineer Foit-Albert, the Fourth Department affirmed the dismissal of the Labor Law § 200 claim against it as Foit–Albert exercised no control or supervision over either plaintiff's work or plaintiff's work site, and thus was not responsible for providing plaintiff with a safe workplace.  Further, the court properly granted that part of Foit–Albert's motion with respect to the common-law negligence cause of action inasmuch as there was no showing that it failed to use due care in the exercise of its professional services.

However, in regards to plaintiff's Labor Law § 200 and common-law negligence claims against the County, the court properly found issues of fact that preclude an award of summary judgment to the County.

Karnaikolas v Elias Taverna, LLC
August 13, 2014
Appellate Division, Second Department

Plaintiff allegedly fell from a six-foot high, A-frame ladder while he was performing construction work in a building owned by defendant 20 John Street, in space leased by defendant Elias Taverna.  Plaintiff filed this common-law negligence and Labor Law §§ 240(1), 241(6), and 200 action against 20 John Street and Elias Taverna (Defendants).  Cruz moved for summary judgment on his § 240(1) claim, and Defendants moved to dismiss the common-law negligence and § 200 claims, as well as the § 241(6) claim predicated upon (12 NYCRR) § 23-1.2, 1.4(b)(16), 1.7(a) and (b), 1.8(c), 1.15, 1.16, 1.17, 1.19, 1.20, 1.21(a), (c), (d), (e) and (f), 1.25(a), 3.1, 3.2, 3.3(c) and (h), and subparts 23-5 and 23-6. 

20 John Street also cross-moved on its cross-claims against Elias Taverna for contractual and common-law indemnification and to recover for breach of contract for failing to procure insurance, and Elias Taverna cross-moved for common-law indemnification against 20 John Street and on its counterclaim against third-party defendant Castello for common-law indemnification and contribution.  The trial court granted Plaintiff’s motion with respect to his § 240(1) claim, and denied Defendants’ cross-motion on the common-law negligence and Labor Law §§ 200 and 241(6) claims.  The trial court also denied Defendants’ cross-motions.  

Labor Law § 240(1) (DRA)

For § 240(1) to apply where a plaintiff fell from a ladder, “there must be evidence that the ladder was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial factor in causing the plaintiff’s injuries.”  Here, the Second Department reversed the trial court’s decision to grant Plaintiff summary judgment on his § 240(1) claim because in opposition to Plaintiff’s prima facie showing, Defendants raised a triable issue of fact as to whether the ladder used by Plaintiff was, in fact, defective or inadequately secured.

PRACTICE POINT:  The crux of this decision is not what is included but what is absent.  It would appear that the plaintiff has no specific reason why he fell.  Had the ladder moved under the plaintiff causing him to fall or had the ladder broken and collapsed causing him to fall it would have been a labor law case, but, as in the instant case, there is no reason for the plaintiff to have fallen off a ladder properly placed and in good condition Summary Judgment would be awarded to the defendant based on sole proximate cause.  Here, the second did not grant Summary Judgment to the defendants as while the plaintiff did not meet his burden to prove a violation of the labor law, the defendant did not meet the burden of establishing the absence of such a violation and, in fact, it appears they did not even move for that relief.

Labor Law § 241(6) (JAE)

The Second Department, declining to address each code individually, summarily held that the defendants established, prima facie, that those sections of the Industrial Code identified by plaintiff were either not specific enough to give rise to the duty imposed by Labor Law § 241(6), or are inapplicable to the facts of this case.

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

The Second Department held that the trial court should have granted the cross motion of Elias Taverna for summary judgment dismissing the causes of action for common-law negligence and Labor Law § 200.  In this action, arising from the means and manner of the work performed, Elias Taverna established, prima facie, that it lacked the authority to control the manner in which the injured plaintiff's work was performed, and that it did not lend the injured plaintiff the allegedly defective ladder from which he fell.  In opposition, the plaintiffs failed to raise a triable issue of fact.

Indemnity Issues in Labor Law (SEP)

The Appellate Division reversed the trial court’s denial of 20 John Street’s motion for summary judgment which was premised upon a broadly worded contractual indemnity provision in the lease between itself and Elias Taverna.  Elias Taverna opposed the 20 John Street motion on the basis that it contemplated 20 John Street being indemnified for its own negligence, and therefore ran afoul of General Obligations Law § 5-321.  The Court corrected the misapplication of Section 5-321, and therein reiterated that a party to a commercial lease may be indemnified for its own negligence so long as there is proof that the provision was negotiated at arm’s length and also included an insurance procure provision. 

In addition, the Court affirmed the trial court’s decision granting summary judgment for Elias Taverna’s motion for summary judgment dismissing 20 John Street’s common law indemnification claim.  Where, like in the instant case, the party from whom indemnification is sought was not actively negligent, there can be no basis for common law indemnity.  In the instant case, Elias Taverna established that it did not supervise, direct or control the work of Mr. Karnaikolas. 

**** Just a quick note on this decision.  For several years, the Appellate Divisions around the State have consistently refused to void an indemnity obligation based upon the possibility that the lessee could be indemnified for its own negligence.  Unlike its cousin GOL 5—322.1 (which prohibits just that), Section 5-321 only prohibits a lessee from attempting to limit its responsibility to third-parties.  Where there is evidence that the parties to a lease merely wish to shift the risk of exposure to the lessor through the use of an insurance procurement provision, the provision will be enforceable regardless of who was actually negligent. ****

Carrasco v Weissman
August 13, 2014
Appellate Division, Second Department

Carrasco testified that while he was standing on the ground, and his coworker was standing on the second step of a ladder, they jointly lifted a glass window pane in order to install it in a storefront window frame when Carrasco tripped or stepped on a piece of brick and his body shifted slightly, causing the pane to split in half.  The piece of glass struck both Carrasco and his coworker.   

Carrasco filed this common-law negligence Labor Law §§ 200, 240(1) and 241(6) action against the general contractor, NCJ, and the owners, 102 Partners, Bellerose and Jackson (collectively “the owners”).  NCJ moved to dismiss the complaint, arguing that the doctrine of collateral estoppel barred this action by relying on an order of the trial court dismissing the coworker’s action against NCJ.  Carrasco also cross-moved for summary judgment on his § 240(1) claim.  The trial court denied NCJ’s motion, and conditionally granted summary judgment to Carrsco with respect to his § 240(1) claim against NCJ.  NCJ appealed.

Labor Law § 240(1) (DRA)

Although the action commenced by Carrasco and his coworker were joined for trial, Carrasco was not a party to his coworker's action and, thus, he did not have an opportunity to oppose NCJ's motion in that action. Accordingly, the Second Department held Carrasco did not have a full and fair opportunity to litigate the issue of NCJ's liability in the coworker's action and, thus, the doctrine of collateral estoppel is inapplicable. 

However, the Second Department held NCJ established “the absence of a causal nexus between the plaintiff’s injury and a lack or failure of a device prescribed by section 240(1).”  In opposition, Carrasco’s expert affidavit failed to opine as to the necessity of any particular safety device to perform the specific task Carrasco was performing at the time of his incident, and even incorrectly noted that he was injured when he was required to lift a heavy object over his head while climbing a ladder.  Therefore, the Second Department should have granted NCJ’s motion, and denied Carrasco’s motion.  Further, the Second Department exercised its authority to search the record and award summary judgment to NCJ dismissing the § 240(1) against it. 

PRACTICE POINT:  Some risks on a construction site simply do not have any type of safety device which can protect the plaintiff, here the Second held that there is no prescribed safety device to protect the worker who is trying to place a piece of glass into a window from having that glass break.

Labor Law § 241(6) (JAE)

The Second Department affirmed the trial court’s denial of NCJ’s motion regarding the § 241(6) claim because although NCJ argued that it could not be held liable under the statute because it was neither the general contractor nor the statutory agent of the owner, the Second Department held NCJ’s own submissions raised triable issues of fact as to whether it was the general contractor on the project or had the ability to control the activity which brought about the injury.

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

The Second Department affirmed the trial court’s denial of NCJ’s motion regarding the common-law negligence and § 200 claims since this action is based upon an alleged dangerous condition at the worksite and NCJ failed to eliminate all triable issues of fact as to whether it had control over the worksite and whether it created or had actual or constructive notice of the alleged dangerous condition.

Carrasco v Weissman
August 13, 2014
Appellate Division, Second Department

After the initial motions and decision, Carrasco moved for summary judgment on his Labor Law § 241(6) claim against the owners and NCJ.  The owners moved for leave to file a late motion for summary judgment dismissing the complaint against them.  Carrasco also cross-moved for leave to renew his prior motion for summary judgment on his § 240(1) claim, except this time for an unconditional order, and NCJ also moved to renew its prior motion for summary judgment dismissing the common-law negligence and Labor Law §§ 200 and 241(6) claims. 

The trial court granted Carrsco’s motion for leave to renew, vacated its prior order, and granted Carrasco the unconditional order on his § 240(1) claim against the owners.  The trial court also granted Carrasco’s summary judgment on his § 241(6) claim against the owners and NCJ.  The trial court denied that branch of the owners’ motion to file a late motion, and also denied NCJ’s motion to renew.  The owners and NCJ appealed.   

Labor Law § 240(1) (DRA)

The Second Department reversed the trial court’s decision to grant that branch of Carrasco's cross-motion for leave to renew his prior motion for unconditional summary judgment regarding the § 240(1) claim because that branch of his motion was not based on new facts or a change in the law that would change the prior determination.  Further, the Second Department held that since it previously awarded summary judgment to NCJ on the § 240(1) claim, it again exercised its authority to search the record and award summary judgment to the owners dismissing the § 240(1) against it.  Additionally, although the Second Department held the owners were not entitled to file their late motion because they failed to establish good cause for not timely serving it under CPLR § 3212(a), because of the decision in the related appeal, which essentially awarded the owners summary judgment on Carrasco’s § 240(1) claim, the claim was still dismissed.

PRACTICE POINT:  Easy one here, don’t miss the deadline to file a Summary Judgment motion.  Also remember that a motion to renew must be based on be based on new information or a change in the law while a motion to reargue is simply a claim that the court misapprehended the fact or the law.  The denial of a motion to renew is appealable while the denial of a motion to reargue is not.

Labor Law § 241(6) (JAE)

The Second Department also reversed the trial court’s decision to grant Carrasco’s cross-motion because he failed to establish prima facie entitlement to judgment as a matter of law on that cause of action.  Additionally, in support of its motion to renew, NCJ’s argued that there was a purported change in the law with Mendez v Jackson Dev. Group, Ltd. (99 AD3d 677); Carrasco’s coworker’s action where the Second Department held that 12 NYCRR 23-1.7(e)(2) was “designed to protect against tripping hazards and sharp projections on floors and platforms,” and Mendez did not testify that he tripped on a tripping hazard.  Here, however, the Second Department here held that Mendez did not constitute a change in the law because Carrasco testified that his incident occurred when he tripped on a brick.  Thus, NCJ failed to provide any new facts or change in the law regarding his motion to dismiss the common-law negligence, and §§ 200 and 241(6) claims.   

 

Baumann v Town of Islip
August 20, 2014
Appellate Division, Second Department

Baumann claimed he tripped over a metal “fish” or “snake” line used by the electrical contractor to pull wire through electrical conduit as he was trying to clear a path to drive his excavator into position to complete his assigned task.  Baumann was employed as an equipment operator for Atlantic Coast, who was the general contractor for the construction project and subcontracted with defendant Mainline to perform electrical work.

Baumann filed this Labor Law and common-law negligence action against the property owner, Town of Islip.  The Town moved for summary judgment dismissing the Labor Law § 241(6) claim predicated upon (12 NYCRR) § 23-1.7(e)(2), the common-law negligence claim and the § 200 claim.  The trial court denied the motion.  The Town appealed.

Labor Law § 241(6) (JAE)

The Second Department affirmed the decision of the trial court finding that it properly denied that branch of the Town’s motion dismissing the Labor Law § 241(6) cause of action insofar as predicated on 12 NYCRR 23-1.7(e)(2). The Town failed to establish, prima facie, that the area where the plaintiff was injured was not a “working area” within the meaning of 12 NYCRR 23-1.7(e)(2).

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

The Second Department held that the trial court properly denied those branches of the Town's motion for summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action. The Town focused its arguments exclusively upon its alleged lack of supervision of, or control over, the plaintiff's work. However, that argument is only relevant where the claimed injury arises from the manner in which the work is performed.  Where, as here, the injury arises from an allegedly defective or dangerous condition on the premises, the allegedly unsecured and improperly stored electrical wire, a property owner will be liable under a theory of common-law negligence, as codified by Labor Law § 200, when the owner created the alleged dangerous or defective condition, or failed to remedy a dangerous or defective condition of which it had actual or constructive notice. Since the Town failed to address this issue, it did not meet its prima facie burden with respect to those branches of its motion seeking dismissal of the Labor Law § 200 and common-law negligence claims. 

Przyborowski v A&M Cook, LLC
August 20, 2014
Appellate Division, Second Department

Plaintiff allegedly fell while descending an unsecured A-frame ladder at his worksite.  The ladder provided access for plaintiff and other workers to move between an upper level and lower level of the worksite, and it was undisputed that the ladder was unsecured and leaning against the wall in a closed position.  Plaintiff sued the property owner, Cook, alleging violations of Labor Law §§ 200, 240(1) and 241(6).  Cook filed its third-party complaint against PSG, plaintiff’s employer, for common-law indemnification and contribution. 

Plaintiff moved for summary judgment on his § 240(1) claim, and Cook cross-moved to dismiss the complaint.  PSG also moved to dismiss the §§ 240(1) and 241(6) claims.  The trial court denied plaintiff’s motion, and granted the motions to dismiss the complaint and third-party complaint.  Plaintiff appealed.  

Labor Law § 240(1) (DRA)

The Second Department reversed the trial court’s decision, holding that plaintiff established that he was injured when the unsecured, closed A-frame ladder fell backwards as he descended it.  The Court rejected defendants’ argument that plaintiff’s decision to use the ladder, rather than the staircase, was the sole proximate cause of his injuries because there was no evidence that anyone instructed plaintiff that he was “expected to” use the staircase rather than the ladder.   

PRACTICE POINT:  Always remember the three necessary elements of a sole proximate cause defense: there must be a 1) appropriate and 2) available safety device which the plaintiff 3) either was instructed to use or knew he was to use and, for no good reason did not use.  All three must be present for the defense to be applicable.

Labor Law § 241(6) (JAE)

Furthermore, the Second Department reversed the trial court grant of summary judgment dismissing the cause of action alleging violations of Labor Law § 241(6), which was predicated upon alleged violations of 12 NYCRR 23-1.21(b)(1), 23-1.21(b)(3)(i), 23-1.21(b)(3)(iv), 23-1.21(b)(4)(ii), and 23-1.21(e)(2).

The court found the code provisions to set forth specific, rather than general, safety standards, and found them to be sufficient to support a Labor Law § 241(6) cause of action.  Since Cook and PSG did not establish, prima facie, either that those Industrial Code provisions were inapplicable to the facts of this case, or that the alleged violation of those provisions was not a proximate cause of the plaintiff’s injuries, the subject branches of their respective cross motions which were for summary judgment dismissing the Labor Law § 241(6) cause of action should have been denied regardless of the sufficiency of the plaintiff’s opposition papers.

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

Cook established, prima facie, that the plaintiff's injuries arose as a result of the methods and means of his work, that it had no authority to supervise or control the plaintiff's work, and that it did not provide the subject ladder and the plaintiff failed to raise a triable issue of fact in opposition. 

Van Blerkom v America Painting, LLC
August 20, 2014
Appellate Division, Second Department

Van Blerkom allegedly fell from a scaffold while performing electrical installation work on an apartment renovation project.  Defendant painting subcontractor supplied the scaffolding, pursuant to its agreement with the general contractor.  Van Blerkom filed this Labor Law action, alleging defendant was the statutory agent of the general contract and that he was caused to fall due to the allegedly defective condition of defendant’s scaffold.  The trial court denied Van Blerkom’s summary judgment motion on his § 240(1) claim, and granted defendant’s cross-motion to dismiss the §§ 240(1) and 241(6) claims on the ground that defendant was not a statutory agent of the general contractor under the statute.  Van Blerkom appealed.

Labor Law § 240(1) (DRA)

To hold a defendant liable as an agent of the general contractor under Labor Law §§ 240(1) and 241(6), there must be a showing that it had the authority to supervise and control the work.  The determinative factor is whether the party had the right to exercise control over the work, not whether it actually exercised that right.  Where the owner or general contractor does in fact delegate the duty to conform to the requirements of the Labor Law to a third-party subcontractor, the subcontractor becomes the statutory agent of the owner or general contractor

Here, defendant’s owner testified that he supplied the subject scaffold pursuant to its agreement, and that, prior to the incident, he asked the general contractor for the authority to supervise and control plaintiff’s use of the subject scaffold, to which the general contractor responded yes.  Thus, the Second Department held that Van Blerkom established as a matter of law that defendant had the authority to supervise and control the work, and was thus the statutory agent of the general contractor.  Accordingly, Van Blerkom’s motion for summary judgment should have been granted, and defendant’s cross-motion denied. 

PRACTICE POINT:  The old adage of “be careful what you ask for because you just might get it’ was nevermore true in this case.  Here, the owner of the company that supplied the scaffold testified that he asked for permission to and control the plaintiff’s use of the scaffold thus, dooming himself and his company to be considered an agent and thus liable under the labor Law.  There have been several cases this month that address this question of authority and the ramifications of having or exercising the authority to supervise, direct or control the plaintiff’s work. 

Warren v Stepanova
August 20, 2014
Appellate Division, Second Department

Warren, a carpenter, allegedly was injured while working at a house owned by defendant Tatyana Stepanova.  Warren was hired to construct low decking and did not require a ladder.  Warren claims that as he exited from the back of the house to get down to the deck framing, he stepped onto a rung of a ladder that was leaning against the house.  Surprisingly, the ladder collapsed and Warren was injured.  Neither Warren nor defendant owned the ladder.

Warren filed this common-law negligence and Labor Law § 200, 240(1) and 241(6) action, and moved for summary judgment on his § 240(1) claim.  Defendant cross-moved to dismiss the complaint and the trial court granted the cross-motion.  The trial court also denied Warren’s motion, and he appealed.   

Labor Law § 241(6) (JAE)

The Second Department held that the trial court properly granted that branch of the defendant's cross motion dismissing the Labor Law § 241(6) cause of action. Although the complaint contained a general allegation of a violation of Industrial Code rule 23 (12 NYCRR part 23), it failed to identify a specific and applicable provision of rule 23 that the defendant allegedly violated.  Furthermore, the plaintiff, in opposition to the defendant’s cross motion, failed to allege a specific and applicable provision of the Industrial Code.

Cruz v Cablevision Sys. Corp.
August 27, 2014
Appellate Division, Second Department

Cruz, an employee of Douglas S. Plotke Jr., Inc. d/b/a Roof Services, was hired by defendant CSC to remove the roof of a building and install a new one.  Defendant JQ owned the building it leased to defendant Cablevision and/or CSC.  Cruz was installing insulation about 1 ½ feet from the edge of the roof when he fell 40 feet and was injured.  He filed this common-law negligence and Labor Law §§ 240(1), 241(6) and 200 action against Cablevision, JQ and CSC (“Defendants”).

Cruz moved for summary judgment on his § 240(1) claim, and defendants cross-moved to dismiss the claims for common-law negligence, § 200 and § 241(6).  The trial court denied all the motions, and Cruz and Defendants appealed and cross-appealed.

Labor Law § 240(1) (DRA)

Labor Law § 240(1) imposes a nondelegable duty upon owners, lessees that control the work performed, and general contractors to provide safety devices to protect workers from elevation-related risks.  Here, Cruz demonstrated he was not provided with safety devices to properly protect himself from the elevation-related risk, and this failure proximately caused his incident.  Therefore, the Second Department held the trial court should have granted Cruz’s motion.

In opposition, Defendants argued the perimeter warning system allegedly in place at the time of Cruz’s fall did not constitute a safety device with the meaning of the statute.  Defendants’ expert affidavit opined that the perimeter warning system complied with OSHA and other recognized industry practices.  The Second Department held the affidavit was insufficient to raise a triable issue of fact as to whether Defendants violated the statute because the statute is “a self-executing statute which, contains its own specific safety measures,” the violation of which provides an independent legal basis for liability, regardless of whether there was compliance with federal regulations or general industry standards.

PRACTICE POINT:  No surprise here, compliance with OSHA does not mean that adequate safety devices were provided to the plaintiff and, if the plaintiff is injured even while OSHA approved measures were taken, it is not a “get out of jail free card” which will prevent the court from finding that the statute was violated and awarding Summary Judgment to the plaintiff.

Labor Law § 241(6) (JAE)

In considering the § 241(6) cause of action, the court reversed the trial court finding that it should have granted that branch of the defendants’ cross motion.  The defendants established, prima facie, that the Industrial Code provisions upon which the plaintiff relied either do not apply in this case, or relate to general safety standards and, thus, cannot serve as a predicate for liability under Labor Law § 241(6).  In opposition to that showing, the plaintiff failed to raise a triable issue of fact.

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

The Second Department held that the trial court should have granted that branch of the building owner defendant JQ’s cross motion for summary judgment dismissing the common-law negligence and Labor Law § 200 claims. JQ established its’ prima facie entitlement to judgment as a matter of law and the plaintiff failed to raise a triable issue of fact in opposition.

However, the trial properly denied that branch of the defendants' cross motion for summary judgment dismissing the causes of action alleging common-law negligence and Labor Law § 200 as asserted against the defendants Cablevision and CSC. The defendants failed to establish, prima facie, that Cablevision and CSC lacked the authority to supervise or control the means and methods of the plaintiff's work.    

 

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

Regulation § 23–9.6(b) pertaining to aerial basket safeguards, and (b)(1) requiring that controls be protected so that they do not come into contact with obstructions, and (b)(2) requiring that the lower controls at ground or grade level be capable of overriding the controls in the basket, held applicable to plaintiff’s incident which occurred when his arm was caught between the ceiling of the worksite and the top of the aerial basket in which he was working (Moore v Metro N. Commuter R.R., 233 AD2d 192, 650 NYS2d 5 [1st Dept 1996]).

Regulation § 23–9.6(c)(1) sets forth only non-specific standards of “general regulatory criteria” and thus cannot serve as a predicate for § 241(6) cause of action (Wilke v Communications Const. Group, Inc., 274 AD2d 473, 711 NYS2d 784 [2d Dept 2000]). 

Triable issues were held to exist as to whether regulation § 23–9.6(c)(3) concerning the driving or moving of aerial basket trucks, applied to plaintiff injured during bridge renovation project when manlift fell over with plaintiff inside manlift’s aerial basket, which plaintiff entered in an attempt to use the controls in the basket to move the manlif (Simoes v City of New York, 81 AD3d 514, 917 NYS2d 163 [1st Dept 2011]).

Regulation § 23–9.6(e) listing standards for operation of aerial baskets, held arguably applicable where plaintiff stepped out of lower aerial bucket and fell into a three-foot-deep drainage that was overgrown with grass and weeds, but there was no evidence that any violation of the regulation was a proximate cause of plaintiff’s injuries (Kaleta v New York State Elec. & Gas Corp., supra). 

Regulation § 23–9.6(e) is sufficiently specific to support a Labor Law § 241(6) action, and genuine issues of material fact existed as to whether regulation § 23–9.6(e) applied to telephone company lineman struck by cable during working hanging it (Greenough v Niagara Mohawk Power Corp., supra).

Triable issues were held to exist as to whether regulation § 23–9.6(e)(8) requiring that “[p]ersons shall enter or leave an aerial basket only when such basket is resting on the ground or grade level or cradled in the traveling position” and such persons “shall stand clear of the path of the basket and boom when such basket is being lowered” and any “movement of the vehicle while persons are elevated in the basket is prohibited”, applied to plaintiff injured during bridge renovation project when manlift fell over with plaintiff inside manlift’s aerial basket, which plaintiff entered in an attempt to use the controls in the basket to move the manlif (Simoes v City of New York, supra).

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Labor Law Pointers

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V. Christopher Potenza

Associate Editor
Steven E. Peiper

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Jennifer A. Ehman

Associate Editor
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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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