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Labor Law Pointers - Volume III, No. 3

From the Editor:   Happy New Year to all or our readers.  I received many responses to our Night before Christmas parody, including a recommendation that I try a labor law Haiku.   Could not resist, might well have been the New Year’s Eve Champaign but here goes.

Stood on a ladder
Shift, fall, hard, cold
Attorneys gather

A few more cases this month but the drought from the court of Appeals continues.  We had just one case from them during 2013, the Soto case, where the court ruled that cleaning the shelves in a retail store is not a covered activity.  This is a slowdown form the past several years when the decisions were coming regularly which reshaped the law. 

As we start a new year all of us here at Hurwitz & Fine wish all of you a very happy and healthy 2014.  As always we are available to answer and all questions labor law related.  We are well on our way to having our next webinar ready to go, trials, appeals and motions, not to mention holiday preparation and celebration have slowed it down a touch but we are starting to look at dates in the next few months to put it on.  Steve Peiper and I will be analyzing the latest cases from the Court of Appeals; we think the latest 20 cases but we keep adding older cases we find important.  Stay tuned for a date and sign up. 

Hope everyone had a great 2013, and that 2014 will be even better.

 

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.

 

Rodriguez v Coalition for Father Duffy, LLC
December 3, 2013
Appellate Division, First Department

A license agreement between defendant Theatre Development Fund, Inc. (“defendant”) and the owner of the premises, the City of New York, acting through the Department of Parks and Recreation, permitted defendant to operate the premises as a ticket stand, and gave defendant the responsibility for supervising the work of all personnel necessary for the operation of the license.  Plaintiff brought this Labor Law action and defendant moved to dismiss.  The trial court granted defendant’s motion for summary judgment dismissing the common-law negligence and Labor Law §§ 200 and 240(1) claims.

Labor Law § 240(1) (DRA)

The First Department held it was premature to decide whether defendant was a statutory agent of the City and thus, may be liable under the statute, regardless of whether plaintiff’s employer was hired directly by the City rather than by defendant.  The First Department declined to evaluate defendant’s unpreserved contention that dismissal of the § 240(1) claim should be affirmed on the alternative ground that plaintiff’s cleaning work was not a covered activity under the statute, “since the issue is not a purely legal issue apparent on the face of the record but requires for resolution facts not brought to plaintiff’s attention on the motion.”

PRACTICE POINT:  This case appears to have been decided prior to conducting depositions and the court is holding that absent those depositions being conducted, it is premature for any determination of the status of the defendant as an agent of the owner.  The important part of the case for those making a decision regarding a Summary Judgment and the timing of that motion appears to be that of making all your arguments in the motion.  Here, it is an “unpreserved contention” that the plaintiff’s activity of cleaning was not protected.  Thus, as that contention appears not to have been addressed in the initial motion, and thus, the plaintiff had no opportunity to oppose it in the motion before the trial court, the appellate court is not going to make that determination.  Strategic decisions as to the basis for motions are made regularly and I would not want to second guess the decision made here, but a word of caution is in order; make sure of your reasons for not addressing a potential basis for Summary Judgment as you may well be forced to live with that decision for the life of the case. 

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

The First Department also ruled that plaintiff's common law negligence and Labor Law § 200 claims were prematurely dismissed before depositions were taken. The contractual provisions requiring defendant to supervise and control the work, though not in themselves sufficient to justify holding the defendant liable for the alleged inadequacy of the ladder,  these contractual provisions do furnish cause to believe that further discovery may lead to evidence that defendant's employees did exercise actual supervision or control over plaintiff's worksite. 

 

Youseff Malik
December 4, 2013
Appellate Division, Second Department

Plaintiff was allegedly injured when a coworker’s ladder collided with his ladder, causing him to fall from a height of eight feet.  He was performing construction work at a single-family residence owned solely by defendant Robina Malik (“Robina”).  Robina is married to defendant Abbas Malik (“Abbas”), who is the president and sole shareholder of KES Construction, Inc. (“KES”), plaintiff’s employer.  Plaintiff applied for and received workers’ compensation benefits from KES’s insurance carrier.

Plaintiff and his wife filed this action for common-law negligence and violations of Labor Law §§ 200, 240(1) and 241(6).  Defendants moved for summary judgment dismissing the complaint and plaintiffs cross-moved on his § 240(1) claim.  The trial court granted defendants motion. 

Labor Law § 240(1) (DRA)

The statutory phrase “direct or control” is strictly construed and refers to situations where the owner supervises the method and manner of the work.  Here, the Second Department held Robina prima facie did not exercise any direction or control over the manner or method of the work being performed.  Plaintiffs failed to raise a triable issue of fact as to the applicability of the homeowner’s exemption.  

Additionally, the Second Department held Abbas was entitled to summary judgment as Abbas did act as Robina’s agent or contractor because the record established that Robina entered into a construction contract with KES, and that, to the extent that Abbas played a supervisory role in the construction project, he acted in his capacity as a KES officer, rather than in his individual capacity.  Since plaintiff and Abbas were “acting within the scope of their employment, as co-employees, at the time of injury,” any claims against Abbas stemming from the accident are barred by the exclusivity provisions of the Workers’ Compensation Law. 

PRACTICE POINT:  The single family homeowner exclusion rears its ugly head yet again.  Here, the owner of the property did not supervise the means and method of the plaintiff’s work.  It is very important to prepare your client before the deposition to make sure you explore if this defense is available.  As to the owners spouse, he was also the plaintiff’s employer and thus, entitled to the section 11 exclusive remedy defense under the workers compensation law.  Recall that section 11 applies not only to the employer but also to co-employees.

Portes v New York State Thurway Auth.
December 5, 2013
Appellate Division, Third Department

Plaintiff was working on a painting project on one of defendant’s bridges when a suspension cable upon which he was walking broke, causing him to fall and sustain injuries.  The suspension cable that broke was one of approximately 28 such cables that had been positioned under the bridge and provided support for scaffolds attached to the cables.  He filed this common-law negligence and Labor Law §§ 200, 240(1) and 241(6) action.

According to plaintiff, workers routinely accessed the scaffold by walking on a suspension cable while holding a bridge beam above them.  He further stated that he had attached his lanyard to the cable upon which he was walking because it was the only available cable in that there were no safety cables close enough to use.  He moved for summary judgment on his § 240(1) claim. 

Defendant opposed plaintiff’s motion, and cross-moved for summary judgment dismissing the negligence, § 200 and § 241(6) claims.  Defendant submitted proof that workers were instructed not to use the suspension cables to get to or from the scaffold, ladders were available to access the scaffold and adequate safety cables were available for plaintiff’s lanyard.  The Court of Claims denied both motions, and plaintiff appeals.

Labor Law § 240(1) (DRA)

A defendant can raise a factual issue sufficient to avoid a prima facie case for summary judgment by presenting “evidence that the device furnished was adequate and properly placed and that the conduct of the plaintiff may be sole proximate cause of his or her injuries.”  According to the Third Department, the purpose of the suspension cables at the worksite was to support workers and materials to fulfill this fundamental function, and that failure resulted in plaintiff’s fall.  Thus, plaintiff established a prima facie case under the statute.

The Third Department rejected defendant’s proposed proof that a separate safety cable was available that plaintiff should have used instead of attaching his lanyard to the cable upon which he was walking because by attaching his lanyard to the suspension cable, plaintiff protected the risk of falling but not the possibility of the cable breaking.  While this action could go to plaintiff’s comparative negligence, it was not the sole proximate cause of the accident and fails to establish the recalcitrant worker defense.

Moreover, defendant’s claim that ladders were available and workers had been instructed to use them instead of walking across the suspension cables does not raise a triable issue of fact because this is not a case where plaintiff simply lost his balance and fell off the cable while using it instead of the safer way to access the scaffold via a ladder.  The cable broke and thus, a device intended to support a worker at an elevated height failed, and that failure was a proximate cause of plaintiff’s injuries. 

“Under Labor Law § 240(1) it is conceptually impossible for a statutory violation (which serves as a proximate cause for a plaintiff’s injury) to occupy the same ground as plaintiff’s sole proximate cause for the injury.”  Therefore, plaintiff was entitled to summary judgment.

PRACTICE POINT:  The court here seems to be holding that as the cable broke, it failed as a safety device and thus nothing else can be the sole proximate cause.  While I understand the logic they are utilizing here, I think that they missed on this one.  The fact that there was evidence that the plaintiff was instructed not to use the cable to access the scaffold, and that there were other methods available for the plaintiff to reach his work site certainly seems to me to meet the three part test for sole proximate cause, an available (the ladders) safety devise which was appropriate and which the plaintiff had been instructed to use but failed to use or misused.  The court’s statement that using the ladder was simply a safer way to access the work site seems to miss the point that the plaintiff was instructed not to use the cable to walk on and was to use a ladder while tied off to a different safety line.
 
Matter of 91st St. Crane Collapse Litig.
December 12, 2013
Appellate Division, First Department

Plaintiffs’ decedents were fatally injured in a crane accident at a construction site.  They filed this action for a violation of Labor Law § 240(1) against, among others, the City of New York.  The trial court denied the City defendants’ motions for summary judgment dismissing the claim.

Labor Law § 240(1) (DRA)

The First Department reversed, holding that the City defendants had transferred ownership of the construction site to the New York City Education Construction Fund, a State agency, nearly a year and a half before the crane accident, and neither retained nor exercised any ownership rights regarding the property of the construction project.  Plaintiffs unsuccessfully argued that the transfer of a deed was found to be “nothing more than a financing mechanism, not a genuine transfer of ownership” as nothing in the record casts doubt on the genuineness of the City’s transfer of ownership.  Thus, the City defendants established prima facie that they were not owners under the statute.

PRACTICE POINT:  Owner means owner means owner.  If you do not own the property you cannot be a proper defendant in a labor law case.  Always double check with your client regarding ownership and request proof of ownership when there is any question.

 

Schwarz v Valente
December 18, 2013
Appellate Division, Second Department

Defendant Jack Valente hired plaintiff to re-shingle the roof of his house.  On the day of plaintiff’s accident, he used a ladder to get on the roof and install a tarp.  He fell as he was attempting to descend from the roof. 

The jury determined that the house was a three-family residence, and that defendant violated Labor Law § 240(1) by failing to provide safety equipment, but that such violation was not a substantial factor in causing plaintiff’s injuries.  Upon plaintiff’s motion, the trial court set aside a portion of the verdict, finding that defendant’s acts violated the statute and granted plaintiff judgment as a matter of law on the issue of liability.

Labor Law § 240(1) (DRA)

“To grant a motion to set aside a jury verdict and for judgment as a matter of law, the court must ‘conclude that there is simply no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury on the basis of the evidence presented at trial.’”  Here, the Second Department held that no valid line of reasoning and permissible inferences could possibly lead rational persons to conclude that the violation of § 240(1) was not a proximate cause of plaintiff’s injuries.  Further, defendant’s contention that he is entitled to a new trial on the issue of whether his house was a three-family residence was not properly before the Court.  Accordingly, the trial court properly granted that branch of plaintiff’s motion. 

PRACTICE POINT:  Where the jury finds that the statute was violated it is very difficult to find a case where the violation of the statute was not a substantial factor in causing the injury.  When the second will not find it you are fighting a huge uphill battle in the rest of the state.  As a practical matter, where the statute has been found to be violated, and there is no sole proximate cause defense, it has already been determined that the plaintiff was injured by the application of gravity and that not appropriate safety device protected the plaintiff from injury, and thus a proximate cause argument is almost meaningless.

Thomas v Benton
December 18, 2013
Appellate Division, Second Department

In a ruling with hardly any facts recited, all that is known is that plaintiff was injured at a construction site.  Defendant Erection & Welding Contractors (“defendant”), a subcontractor, moved to dismiss plaintiff’s common-law negligence and Labor Law action.  Plaintiff cross-moved for summary judgment on his Labor Law § 240(1) and § 241(6) claims.  The trial court granted defendant motion for summary judgment dismissing the complaint against it, and denied plaintiff’s cross-motion. 

Labor Law § 240(1) (DRA)

The Second Department held Defendant established that it was not acting as a statutory agent of either the owner or general contractor and, therefore, could not be held liable under either Labor Law § 240(1) or § 241(6).

PRACTICE POINT:  The status of the defendant as an agent of the owner is well laid out in other cases, just not in this one.  The standard to hold a subcontractor liable as a statutory agent for violations of Labor Law § 240 (1) or section 241 (6) is that there must be a showing that the party "had the authority to supervise and control the work giving rise to these duties".

 

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

The Supreme Court properly determined that the defendant subcontractor was entitled to summary judgment dismissing the Labor Law § 200 cause of action as it established, prima facie, that it did not have authority to supervise or control the area of the work site where the plaintiff was injured. In opposition, the plaintiff failed to raise a triable issue of fact.

The defendant subcontractor also established its entitlement to judgment as a matter of law dismissing the cause of action alleging common-law negligence insofar as asserted against it. A subcontractor may be held liable for negligence where the work it performed created the condition that caused the plaintiff's injury even if it did not possess any authority to supervise and control the plaintiff's work or work area.  Here, the defendant subcontractor demonstrated, prima facie, that it did not create the dangerous condition that caused the plaintiff's injury, and the plaintiff failed to raise a triable issue of fact in opposition.

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.

 

Santiago v Burlington Coat Factory
December 19, 2013
Appellate Division, First Department

Plaintiff, an HVAC serviceman, was injured when he fell from a ladder that had been provided by defendants.  He filed this common-law negligence and Labor Law § 200 action.  Plaintiff testified that he inspected the ladder on the day of his accident, determined it looked safe, and could not recall whether the ladder was missing its rubber feet.  Defendants moved for summary judgment dismissing the common-law negligence and Labor Law § 200 causes of action, and the trial court granted the motion. 

Labor Law § 200 and Common-Law Negligence (VCP)
                                                                                                        
Defendants established their entitlement to judgment as a matter of law on the common-law negligence and Labor Law § 200 causes of action by submitting evidence showing that they had received no complaints concerning the ladder, which, according to the store manager, had rubber feet on it.  Plaintiff failed to raise a triable issue of fact as he testified that he inspected the ladder on the date of his accident, determined that it looked safe, and could not recall whether the ladder was missing its rubber feet. The Court also rejected the report of plaintiff's expert as conclusory as his findings were based upon photographs taken some time after the accident and there was no evidence adduced that the ladder was in the same condition as it was on the date of the accident.


Kruk v City of New York
December 19, 2013
Appellate Division, First Department

In a decision with few facts, Plaintiff was injured while using a power saw.  He filed this action for a violation of Labor Law § 241(6), relying on Industrial Code § 23-1.12(c)(1).  Defendant moved for summary judgment dismissing plaintiff’s claim.  The trial court granted defendant’s motion.

Labor Law § 241(6) (JAE)

Section 23-1.12(c)(1) provides that “[e]very portable, power-driven, hand-operated saw which is not provided with a saw table… shall be equipped with a fixed guard above the base plate which will completely protect the operator from contact with the saw blade when the saw is operating and with a movable self-adjusting guard below the base plate which will completely cover the saw blade to the depth of the teeth when such saw blade is removed from the cut.”

In affirming the trial court’s dismissal, the court held that while Plaintiff was using a type of saw covered by the code at the time of the accident, defendant was able to establish through the deposition testimony of plaintiff, a co-worker and an expert affidavit, that the saw was equipped with the necessary protective guards in compliance with the provision. 

Plaintiff’s statement during his §50-h hearing that the subject saw had a bottom guard which covered the saw blade when “closed” was insufficient to raise a question of fact.  Likewise, his statement that the plywood he was cutting broke, pushing his left hand into the saw blade was also insufficient to raise a question of fact as to whether the saw had a defective or inadequate guard.

Lastly, the court rejected the argument that the accident was caused by defendant’s failure to provide plaintiff a saw table since the provision does not require a saw table be provided to workers using a “power-driven saw.”

Hartshorne v Pengat Tech. Inspections, Inc.
December 26, 2013
Second Department

Plaintiff was employed by nonparty subcontractor New Hope Pipe Liners (“New Hope”) as a flagman stationed next to a high-pressure water house that ran perpendicularly to the road he was working on.  The hose, operated by a worker employed by defendant Pengat Tech. Inspections, Inc. (“Pengat”), had been placed there at the direction of New Hope’s foreman to flush out a sewer line.  Plaintiff was instructed by his foreman to flag approaching drivers to slow down as they drove through the work zone and a passing motorist disregarded plaintiff’s warning to slow down and sped through the work zone, allegedly causing the hose to strike plaintiff’s leg.

Plaintiff’s filed this action for common-law negligence and violations of Labor Law §§ 200, 240(1) and 241(6).  Pengat moved for summary judgment to dismiss the complaint.  The trial court denied that portion of the motion to dismiss the common-law negligence and § 200 claims. 

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

The Second Department reversed and ruled that the Supreme Court should have granted those branches of Pengat's motion dismissing the causes of action alleging common-law negligence and Labor Law § 200.

Labor Law § 200 is a codification of the common-law duty of an owner or general contractor to provide workers with a safe place to work, and a general contractor may be liable in common-law negligence and under Labor Law § 200 only if it has control over the work site and actual or constructive notice of the dangerous conditionHere, Pengat established, prima facie, that it did not have the requisite control over the work site, and there was no evidence to create an issue of fact in this regard.

Dixson v Waterways at Bay Pointe Home Owners Assn., Inc.
December 26, 2013
Appellate Division, Second Department

Plaintiff was allegedly injured while power washing buildings in preparation for painting them.  Plaintiff filed this action alleging violation of Labor Law § 241(6) relying on Industrial Code § 23-1.4(b)(13).  Defendants moved to dismiss, arguing the power washing constituted “routine maintenance.”  The trial court granted defendants’ motion.

Labor Law § 241(6) (JAE)
The Second Department reversed the trial court finding that since painting is an enumerated activity (§ 23-1.4(b)(13) of the Industrial Code defines “construction work” as including all work “performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures”), and since the power washing performed here was in preparation for, and a contractual part of, the painting work, the statute applied.   
Zarnoch v Luckina
December 27, 2013
Appellate Division, Fourth Department

Plaintiff was an employee of the general contractor, and defendant was the framing subcontractor.  Plaintiff was allegedly injured while assisting defendant in raising an 18–by–18–foot exterior wall as part of the construction of a single-family residence. Instead of using a crane, wall jack, or similar piece of equipment, defendant, plaintiff, and four other men began to raise the wall by hand.  After they had lifted the edge of the wall above their heads, the men began to “walk the wall up.”  When the wall was at a 35–to–40–degree angle from the ground, defendant determined that it was too heavy to continue to raise, and instructed the men to lower the wall.  According to plaintiff, he was injured when the wall fell on him as the men attempted to lower it.
Plaintiff filed this common-law negligence and Labor Law action, and moved for partial summary judgment on his Labor Law § 240(1) claim.  Defendant cross-moved to dismiss the complaint or, alternatively, for leave to amend the answer asserting as an affirmative defense that plaintiff was his special employee. The trial court granted plaintiff's motion on the condition that it was determined at trial that plaintiff was not “defendant's special employee at the time of the accident,” and granted that part of defendant's cross-motion for summary judgment dismissing the Labor Law § 241(6) claim.
Labor Law § 240(1) (DRA)
The Fourth Department held that plaintiff met his initial burden by establishing that he “suffered harm that ‘flow[ed] directly from the application of the force of gravity’” to the wall that struck him, and that his injury was “‘the direct consequence of [defendant's] failure to provide adequate protection against’” the gravity-related accident.  The Fourth Department rejected defendant’s contention that the elevation differential was de minimis because the 30–degree angle of the wall from the ground when it fell on plaintiff “cannot be viewed as de minimis, particularly given the weight of the [wall] and the amount of force it was capable of generating, even over the course of a relatively short descent.”
PRACTICE POINT:  The court compares this accident to that of the lowering of the wire spool in Runner, but I do not see the need.  This is a falling object case pure and simple.  The wall fell while being lowered and injured the plaintiff, a falling object on an employed worker, during construction of a building; some cases simply can’t be defended on liability issues.
Labor Law § 200 and Common-Law Negligence (VCP)
The Fourth Department upheld the trial court’s denial of those parts of defendant’s cross motion seeking dismissal of the common-law negligence and Labor Law § 200 claims. Contrary to defendant's contention, the hazard of being injured while lifting an 18–by–18–foot wall is not an open and obvious hazard inherent in the work of a construction worker. Defendant's further contentions that plaintiff assumed the risk of lifting the wall and that lifting the wall was a superseding cause of plaintiff's injury are similarly without merit.
Addonisio v City of New York
December 31, 2013
Appellate Division, First Department

Plaintiff was excavating a roadway to install telecommunications equipment and was electrocuted when he used a power saw to cut into a street intersection and struck a cable encased in a concrete conduit, owned by Con Ed.  Plaintiff brought this common-law negligence and Labor Law § 200 and § 241(6) action against various defendants. 

Plaintiff’s supervisor testified that plaintiff had been warned of a live cable underground nearby.  Defendants Verizon New York, Inc., the City of New York, and Con Ed moved to dismiss the § 241(6) claim, and Con Ed moved to dismiss the negligence and § 200 claims.  Defendants NYC & LI One Call/Dig Safely and One Call Concepts moved to dismiss the common-law negligence claims.  The trial court granted various defense motions for summary judgment.

Labor Law § 241(6) (JAE)

In considering the 241(6) claim, the First Department affirmed the dismissal of the claim against Con Ed and Verizon since neither one was an owner, contractor, or statutory agent under the labor law.   Any argument that Con Ed had a property interest in the site of the accident below ground was unavailing to the court.  Although a defendant can be deemed an owner for purposes of the statute without holding title to the property, Con Ed was not an owner under these circumstances, since there was no evidence that it contracted to have the work performed or had the authority to control the work site.  Similarly, although Verizon engaged plaintiff’s employer to perform the excavation work in which plaintiff was engaged when the accident happened, the evidence indicated that plaintiff’s employer was the only entity with the requisite excavation permit, and Verizon did not have the right to control the site.
However, with regard to the City, the court reversed.  The City owned the site, and the court found that it failed to demonstrate the inapplicability of, or its compliance with, § 23-1.13(b)(4), which provides that “[n]o employer shall suffer or permit an employee to work in such proximity to any part of an electric power circuit that he may contact such circuit in the course of his work unless the employee is protected against electric shock by de-energizing the circuit and grounding it or by guarding such circuit by effective insulation or other means.”  Also, plaintiff raised issues of fact whether his accident was caused by a violation of the provision by submitting affidavits by two experts who explained that the cable was not de-energized, grounded, or effectively insulated, and that plaintiff was not provided with insulated protective gloves, body aprons and footwear while using a power saw that might make contact with underground electric power lines.
Take Away:  While this specific section only refers to employers and employees, the appellate courts consistently hold that it still applies to owner and contractors.  12 NYCRR 23–1.3 expressly provides that part 23, which includes the subject provision, “applies to persons employed in construction, demolition and excavation operations, to their employers and to owners, contractors and their agents obligated by the Labor Law to provide such persons with safe working conditions and safe places to work”
Labor Law § 200 and Common-Law Negligence (VCP)
The First Department reversed and held that the trial court erred in dismissing the Labor Law § 200 and common-law negligence claims against Con Ed. The evidence raised an issue of fact as to whether Con Ed created a dangerous condition that caused plaintiff's accident as Con Ed admitted that it originally installed the cable and did not install a protective plate above it. Con Ed's own accident report attributed the accident, in part, to the lack of such a plate and the shallow depth of the cable.

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

Regulation § 23–5.18, relating to mobile scaffolds, is sufficiently specific to support a § 241(6) cause of action, and applies to platform that was originally designed, manufactured and used as mobile scaffold (Robertson v Little Rapids Corp, 277 AD2d 560, 715 NYS2d 482 [ ).

Regulation § 23–5.18(b), requiring manually-propelled mobile scaffolds be provided with safety railings constructed and installed in compliance with the Industrial Code, is sufficiently specific to support a § 241(6) cause of action, and held applicable where plaintiff fell from scaffold that had no safety railings (Ritzer v 6 East 43rd Street Corp., 57 AD3d 412, 871 NYS2d 26 [ ]).

Regulation § 23–5.18(e), requiring that manually-propelled mobile scaffolds be provided with casters with positive locking devices designed to support four times expected maximum load, is sufficiently specific to a § 241(6) cause of action, and applicable where scaffold from which plaintiff fell had only two locking devices for its four wheels (Ritzer v 6 East 43rd Street Corp., supra).

Subpart § 23–6 dealing with hoisting material, relates to general safety standards (Narrow v Crane-Hogan Structural Sys., supra).  Subpart § 23–6 does not impose any requirement that hoists or cranes be used under particular circumstances; rather, it provides detailed rules to be followed when hoists or cranes are used (Toefer v Long Island R.R., 4 NY3d 399 [2005]); mobile crane attached to back of truck specifically exempt from this sub-part under provisions of § 23–6.1(a) (Loocicero v Princeton Restoration, Inc., 25 AD3d 664, 811 NYS2d 673 [2d Dept 2006]).

Subpart § 23–6 refers to hoisting materials and equipment, which were not used by plaintiff who was carrying scaffold pick when he walked on 4 to 5 foot high pile of dirt (McGrath v Lake Tree Vil. Assocs., supra); inapplicable to truck equipped with boom and fork being used to hoist bundles of panels (Ciccone v Kendal On Hudson, 72 AD3d 723, 898 NYS2d 645 [2d Dept 2010]); inapplicable where no hoisting equipment was used (Salinas v Barney Skanska Const. Co., supra; Hasty v Solvay Mill Ltd. Partnership, supra); inapplicable because block and tackle was used at the time of the accident was not “material hoist” and, further, accident was not caused by failure of the block and tackle to meet the concrete specifications set out in those section (Soles v Eastman Kodak Co., 162 Misc2d 406, 616 NYS2d 871, aff’d, 216 AD2d 973, 629 NYS2d 610 [4th Dept 1995]).    

Regulation § 23–6.1, prescribing safety standards for material hoisting equipment other than cranes, derricks, aerial baskets, excavating machines used for material hoisting and fork lift trucks, inapplicable where worker injured as result of basement floor collapse during demolition of brick wall with jackhammer (Balladares v Southgate Owners Corp., supra); inapplicable where plaintiff was not using material hoisting equipment at time of accident; section implies more than just rope connected through actual item being lifted and refers to items or loads that swing or turn freely (Smith v Homart Dev. Co., 237 AD2d 77, 666 NYS2d 218 [3d Dept 1997]).

Regulation § 23–6.1(a), stating that the “general requirements of this Subpart shall apply to all material hoisting equipment except cranes, derricks, aerial baskets, excavating machines used for material hoisting and fork lift trucks”, cannot support a Labor Law § 241(6) cause of action because it does not set forth a safety standard, general or specific; it merely excepts certain types of hoisting equipment from the regulations that follow (Sharrow v Dick Corp., 233 AD2d 858, 649 NYS2d 281 [4th Dept 1996] [even assuming, arguendo, that it is sufficiently specific, it does not apply here because there is no evidence that the Genie hoist over which plaintiff tripped was defective or improperly maintained]). 

Regulation § 23–6.1(a) does not exempt cases in which a forklift being used at job site as substitute power for hoisting rather than for its intended use (Rought v Price Chopper Operating Co., Inc., 73 AD3d 1414, 901 NYS2d 418 [3d Dept 2010]).  Regulation § 23–6.1(a) held sufficiently specific where plaintiff injured when section of pipe that was hoisted with the side boom and cables fell on him, and on this record an issue of fact exists as to whether a violation of that rule was a proximate cause of plaintiff's injury (Rissel v Nornew Energy Supply, Inc., 281 AD2d 880, 722 NYS2d 643 [4th Dept 2001]). 

Regulation § 23–6.1(a) merely related to general safety standards where employee (“plaintiff’) of subcontractor who was allegedly injured while reaching down to receive bucket of plaster from fellow worker; under contract between owner and general contractor, owner's responsibilities were limited and did not govern plaster work involving worker (Schwab v A.J. Martini Inc., 288 AD2d 654, 732 NYS2d 474 [3d Dept 2011]).

Regulation § 23–6.1(b) requiring that material hoisting equipment be maintained in good repair, relates merely to general safety standards and is not sufficient to impose liability a § 241(6) cause of action (Schwab v A.J. Martini Inc., supra; Barrick v Palmark, Inc., 9 AD3d 414, 780 NYS2d 631 [2d Dept 2004] [did not contain concrete and specific standard relevant to Labor Law § 241(c) claim arising from worker’s having been injured when wire sling he was using to loosen bolt snapped and struck him]; Cardenas v American Ref-Fuel Co. of Hemsptead, 244 AD2d 377, 664 NYS2d 453 [2d Dept 1997] [even assuming that § 23-6.1(b) is sufficiently specific, it does not apply here because there is no evidence that lug in question was material hoist within meaning of section]; Sharrow v Dick Corp., supra [even assuming that § 23-6.1(b) is sufficiently specific, it does not apply where there is no evidence that hoist over which plaintiff tripped was defective or improperly maintained]).
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