From the Editor:   

Every month we get call or emails with interesting questions regarding the labor law and I have to tell you it is the highlight of my day.  I look forward to getting these calls and the interesting issues they present.  This month we had a few fun ones.  First we were asked if there is any responsibility on an agent or insurer to notify an entity which had a contractual claim to the policy.  The answer was no, that no such duty had attached.  Second was a question about painting as routine maintenance.  I like the creative effort but unfortunately painting is an enumerated task and thus, routine or not, is an activity covered under the labor law. 

Another cold month here in Buffalo but warmer weather is sure to find us at some point, though right now it looks a bit like that will be May or June.  I was in Kings County to argue a Summary Judgment motion Monday, only to find lots of snow and an entire calendar adjourned when the judge was not able to make it to court.  We in Buffalo are well aware that we are not the only ones stricken by bad weather, this year is has been spread all over the country.

Some interesting cases this month, including the Second Department applying the Soto standard to duct cleaning and finding a question of fact on the routineness issue.  The First Department, in two separate cases, addresses the standard when an existing structure is used as a safety device or means to access a work area.  Reading these two cases in the same edition will allow for a clear understanding regarding failure of an existing structure.  The analysis is different if the structure actually collapses, then it is a foreseeability standard, or if the existing structure is used as a work area but is not suitable to protect the plaintiff from an elevation related risk, in which case it is an absolute liability labor law case.

I am very happy to report that the prestige of Labor Law Pointers has risen sharply since you last heard from us.  An invaluable member of our Labor Law team, Steve Peiper, has won a “major award”.  No, not the “leg lamp” from A Christmas Story, Steven was selected to receive the Sheldon Hurwitz Young Lawyer of the Year Award in recognition of his outstanding contributions to the field by the Torts, Insurance and Compensation Law Section of the New York State Bar Association.  I need to point out that, while I may poke at Steve a bit here and there, this is truly a great honor and I am extremely proud to both work closely with him, and to call him my friend.
Until next month, keep those questions coming, we love them. 

 

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.

 

Singh v City of New York
January 8, 2014
Appellate Division, Second Department

Plaintiff was allegedly injured when he fell from a ladder while performing renovation work in the school library located at P.S. 3 on Staten Island.  Plaintiffs commenced this Labor Law § 240(1) action, and moved for summary judgment on the issue of liability.  Defendants cross-moved to dismiss the § 240(1) claim, and the trial court denied both motion. 

Labor Law § 240(1) (DRA)

To make a prima facie showing of liability under Labor Law § 240(1), plaintiff can demonstrate that the statute was violated and that the violation was a proximate cause of his injuries by showing “evidence that the subject 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.”  However, the mere fact that the injured plaintiff fell from a ladder does not, in and of itself, establish that proper protection was not provided.

Here, the Second Department held there are triable issues of fact as to whether the subject ladder was inadequately secured and whether the injured plaintiff’s actions were the sole proximate cause of the accident.  Consequently, both plaintiffs and defendants failed to meet their burdens in establishing entitlement to summary judgment.

PRACTICE POINT:
This case, while very thin on facts, allows us to once again review the criteria for a sole proximate cause defense.  The three necessary criteria are that an adequate and appropriate safety device is available to the plaintiff and that he or she, for no good reason, fails to use it or miss-use it.  A ladder which shifts has been held to be a violation of the labor law and thus preclude a finding of “sole” proximate cause in most circumstances.  Reading the underlying decision we find that the plaintiff was on a ladder which was being held by another employee who walked away and that the ladder then shifted causing the plaintiff to fall.  The trial court, and the second on appeal, found a question of fact as to whether the plaintiff was “directed or otherwise required to remain on the ladder or continue working after his co-worker stepped away”.  The trial court found that under these circumstances a question of fact existed whether there was any violation of the labor law.  As a side note, this may not have been the result in another department.

Trombley v Socha
January 9, 2014
Appellate Division, Third Department

Between 2001 and 2006, third-party plaintiff Walter J. Socha Builders, Inc. (“Socha Builders”) hired third-party defendant, Michael Sullivan, to work on various construction projects.  In July 2004, midway through Sullivan's construction of a pole barn, third-party plaintiff William Socha asked Sullivan to execute an insurance/indemnification rider, which Sullivan did.  According to Socha, he advised Sullivan that all contractors performing work for the various Socha companies were required to execute the rider and, further, that the rider would apply to any future work that Sullivan thereafter performed for such entities.

The rider at issue here provided, in relevant part, that:

To the fullest extent permitted by law, [Sullivan] will indemnify and hold harmless [Socha Builders] … from and against any and all claims … arising in whole or in part … from [the] injury … of any person … resulting from [Sullivan's] acts [or] omissions … in connection with the performance of any work by or for [Sullivan] pursuant to this contract.

Sullivan periodically continued to perform work for Socha Builders, including, providing labor for the framing of an apartment building in December 2006.  While installing trusses on that project, plaintiff, who was working for Sullivan at the time, fell and allegedly sustained injuries.

Plaintiff thereafter commenced the underlying action alleging common-law negligence and violations of Labor Law §§ 200, 240 and 241(6).  Third-party plaintiffs, in turn, commenced the third-party action against Sullivan seeking contractual indemnification. The underlying action settled and, following a non-jury trial on the indemnification claim, the trial court dismissed the third-party action finding, among other things, that Sullivan did not expressly agree to indemnify Socha Builders for the underlying injury.  Socha Builders appealed the trial court’s decision.

Indemnity Issues in Labor Law (SEP)
According to the Third Department, the dispositive question is whether this rider, which was executed by Sullivan in July 2004, contains a clearly expressed assumption of an obligation by Sullivan to indemnify Socha Builders for the injuries suffered by plaintiff in December 2006.

 

Garcia v Neighborhood Partnership Hous. Dev. Fund Co., Inc.
January 21, 2013
Appellate Division, First Department

Plaintiff was allegedly injured during a partial building collapse, including the stairwell and floor joists in the area from the second though fifth floors, that also killed a co-worker.  Plaintiff brought this Labor Law action and moved for partial summary judgment on his Labor Law § 240(1) and § 241(6) claims.  Defendants owner and general contractor moved to dismiss the Labor Law § 241(6), § 200 and common-law negligence claims.  The trial court denied both motions.

Labor Law § 240(1) (DRA)

A plaintiff in a case involving collapse of a permanent structure must establish that the collapse was “foreseeable,” not in a strict negligence sense, but in the sense of foreseeability of exposure to an elevation-related risk.

The First Department held that the partial collapse of the building here was foreseeable because the architect’s field report dated seven days prior to the accident, noted “[c]onditions appear to be unsafe and the building is completely open to the elements.  G.C. to make shore as required.”  Moreover, a New York City building violation issued the day of the accident described the conditions as “hazardous,” and cited a “[f]ailure to carry demolition operations in safe and proper manner.”  The violation further noted that removal of interior bearing and non-bearing partitions throughout had caused the floor joists to collapse from the top of the building to ground level at the center,” and ordered that all work be stopped.

Plaintiffs’ expert engineer noted that one week before the accident a number of timber joists (i.e., structural floor elements) located along the length of the staircase were observed to be severely sagging as much as two feet, and further, the joists, which were not shored or posted in any manner, were "clearly visible," providing notice of an "imminent danger" "forshadow[ing] the collapse."

In opposition, defendants submitted the “building demolition survey” prepared five months before the accident, and unsuccessfully argued that plaintiff’s failure to complain about the condition of the staircase raises a triable issue of fact as to whether the partial collapse was foreseeable.  The First Department held that where the record establishes that unsound demolition practices, including the removal of weight-bearing walls, had compromised the integrity of the floors and “foreshadowed” the collapse, a “survey” undertaken before commencement of demolition fails to raise a triable issue of fact.  Similarly, the fact that plaintiffs failed to complain about the condition of the staircase does not speak to the general integrity of the structure.  Accordingly, plaintiffs' motion for partial summary judgment on their § 240(1) claims were granted.

PRACTICE POINT:  The main issue here is the standard regarding the failure or collapse of a permanent portion of the structure, or, as I this case, the entire structure.  That standard is one of foreseeability of the failure and specifically that the failure will create an elevation related risk.   We see this type of situation most often in the failure of internal stairways in buildings undergoing renovation.  Here, the collapse was foreseeable and thus Summary Judgment was granted on § 240(1).

 

Labor Law § 241(6) (JAE)

In contrast, with regard to the § 241(6) claim, the court found questions of fact concerning whether a violation of 12 NYCRR § 23-1.7(f) occurred since it is unclear whether it was the staircase or the surrounding framing that was defective.  Also, questions of fact existed concerning whether defendants violated 12 NYCRR §§ 23-3.3(b)(1) and (c) since there was conflicting evidence regarding how demolition operations were performed, and whether defendants made continuing inspections during the demolition.

Take Away:  For reference, § 23-1.7(f) provides that “Vertical passage.  Stairways, ramps or runways shall be provided as the means of access to working levels above or below ground except where the nature or the progress of the work prevents their installation in which case ladders or other safe means of access shall be provided.”

§ 23-3.3(b)(1) provides: “(b) Demolition of walls and partitions.  (1) The demolition of walls and partitions shall proceed in a systematic manner and all demolition work above each tier of floor beams shall be completed before any demolition work is performed on the supports of such floor beams.” 

§ 23-3.3(c) provides: “Inspection.  During hand demolition operations, continuing inspections shall be made by designated persons as the work progresses to detect any hazards to any person resulting from weakened or deteriorated floors or walls or from loosened material. Persons shall not be suffered or permitted to work where such hazards exist until protection has been provided by shoring, bracing or other effective means.”

 

Collymore v 1985 WWA, LLC
January 22, 2014
Appellate Division, Second Department

Defendant hired Cunningham Duct Cleaning Co., Inc. (“Cunningham”), a nonparty, to clean and decontaminate the HVAC duct work at defendant's building.  Plaintiff, an employee of Cunningham, was vacuuming an HVAC duct located in a ceiling of the building when he fell from the ladder on which he was standing.  Plaintiff commenced this action against defendant building owner, alleging, among other things, a violation of Labor Law § 240(1).  Defendant moved for summary judgment dismissing the Labor Law § 240(1) claim on the grounds that the activity in which plaintiff was engaged at the time of the accident was not the type of activity protected under the statute. The trial court denied that branch of defendant's motion.

Labor Law § 240(1) (DRA)

To recover for a violation of Labor Law § 240(1), plaintiff must have been engaged in a covered activity—"the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure."  Outside of commercial window washing (which is covered by Labor Law § 240[1]), the determination of whether an activity may be characterized as "cleaning" under the statute depends on a consideration of four factors.  An activity cannot be considered "cleaning" under the statute if it: "(1) is routine, in the sense that it is the type of job that occurs on a daily, weekly or other relatively-frequent and recurring basis as part of the ordinary maintenance and care of commercial premises; (2) requires neither specialized equipment or expertise, nor the unusual deployment of labor; (3) generally involves insignificant elevation risks comparable to those inherent in typical domestic or household cleaning; and (4) in light of the core purpose of Labor Law § 240(1) to protect construction workers, is unrelated to any ongoing construction, renovation, painting, alteration or repair project."

Here, the Second Department held that defendant failed to submit evidence sufficient to establish prima facie that plaintiff's activity at the time of the accident could not be characterized as "cleaning" under Labor Law § 240(1) as there was insufficient evidence regarding whether plaintiff's task was "routine, in the sense that it was the type of job that occurs on a daily, weekly or other relatively-frequent and recurring basis as part of the ordinary maintenance and care of commercial premises," rather than "cleaning" within the ambit of the statute. 

PRACTICE POINT:  This is the Second Department reiterating the standard established in the Soto case from the Court of Appeals four months ago.   The standard, importantly held to be to be determined by the court and not by a jury, is the four factor test outlined above, and is critical to litigating any case where the claim is of “cleaning” and thus it bears repeating here, straight from Soto,
“Outside the sphere of commercial window washing (which we have already determined to be covered), an activity cannot be characterized as "cleaning" under the statute, if the task: (1) is routine, in the sense that it is the type of job that occurs on a daily, weekly or other relatively-frequent and recurring basis as part of the ordinary maintenance and care of commercial premises; (2) requires neither specialized equipment or expertise, nor the unusual deployment of labor; (3) generally involves insignificant elevation risks comparable to those inherent in typical domestic or household cleaning; and (4) in light of the core purpose of Labor Law § 240 (1) to protect construction workers, is unrelated to any ongoing construction, renovation, painting, alteration or repair project. Whether the 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.”

 

Kebbeh v City of New York
January 23, 2014
Appellate Division, First Department

Plaintiff was allegedly injured due to exposure to airborne contaminants on a construction project on which he worked as a painter  He filed this action for a violation of Labor Law § 200 and § 241(6) predicated upon 23-1.7(g) and 12-1.2 through 1.7.  One of the contested issues in this case is whether plaintiff was using acrylic water-based paint or an epoxy oil-based paint.  If, in fact, plaintiff was using a water-based paint, his claims that he was required to use paint containing harmful toxins would be undermined.  Defendants moved to dismiss the Labor Law § 200 and certain § 241(6) claims.  The trial court denied defendants’ motion. 

Labor Law § 241(6) (JAE)
The First Department held that the motion court also correctly denied defendants’ motion for summary judgment dismissing the Labor Law § 241(6) claim, which alleged violations of 12 NYCRR 23-1.8(b) [requirement that a respirator be provided] and 12 NYCRR 23-2.8(a) and (d) [requirement that respirators be provided when worker is engaged in brush painting with other than water-mixed paints in a confined space].  While defendants contend that plaintiff did not work in a “confined space” within the meaning of 12 NYCRR 23-2.8, they failed to demonstrate that as a matter of law.  Plaintiff’s 50-h testimony, while lacking precision as to where he worked, did not preclude his later assertion that he worked in a closet.
However, plaintiff's Labor Law § 241(6) claim alleging violations of 12 NYCRR 23-1.7(g) and 12 NYCRR 12-1.2 through 1.7, failed on the merits, as section 1.7(g) [air contaminated or oxygen deficient work areas] was not applicable under these circumstances.
Labor Law § 200 and Common-Law Negligence (VCP)

The First Department held that defendants did not establish that the paint used was a water-based paint even though defendants had drafted the paint specifications in their contract with plaintiff's employer.  Thus, defendants were in a unique position to know what paint was actually used and could have met their burden.  Accordingly, defendants failed to eliminate the triable issue of material fact as to whether plaintiff's injuries were caused by his exposure to paint fumes on the project.

Gory v Neigborhood Partnership Hous. Dev. Fund Co., Inc.
January 28, 2014
Appellate Division, First Department

Plaintiff was allegedly injured while working on the stairway of a building during the demolition phase.  The stairway provided the sole means of access to the floors of the building and plaintiff was required to work on the stairway to complete his task of breaking up the marble pieces covering each step.

Plaintiff filed this action for common-law negligence and violations of Labor Law § 200, 240(1) and § 241(6).  Defendant Neighborhood Partnership moved for summary judgment dismissing the common-law negligence and Labor Law § 200 and § 240(1) claims, and the § 241(6) claim predicated upon 23-3.3(c).  Defendant Neighborhood Partnership also moved for summary judgment on its indemnification claims against defendant West 132nd Street, LLC.  Plaintiff also moved for partial summary judgment on his § 240(1) claim.  The trial court denied Neighborhood Partnership’s motions, and granted Plaintiff’s motion. 

Labor Law § 240(1) (DRA)

Defendant Neighborhood Partnership argued that since the stairway on which plaintiff was working when he was injured was originally constructed as a permanent structure, the statute does not apply.  Rejecting this argument, the First Department held that the stairway “was an elevated surface on which plaintiff was required to work to complete his task” because the surrounding walls had been demolished, and the staircase had no guard rails.  Thus, “plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.” 

PRACTICE POINT:  Note that this case is uses a completely different standard than the Garcia case above although, in both cases, the plaintiff was using a permanent portion of the structure when injured. The instant case is different in that it was not a failure of the portion of the structure which caused the fall in the sense of a collapse, but rather that a portion of the permanent structure was being utilized as an elevated work area and did not have appropriate safety devices to protect the worker in on that elevated work site.

Labor Law § 241(6) (JAE)

Plaintiff offered no competent evidence that his injury was proximately caused by a failure to conduct continuing inspections during the demolition process “to detect any hazards resulting from weakened or deteriorated floors or walls or from loosened materials” (12 NYCRR 23-3.3[c]).  Furthermore, it was undisputed that plaintiff’s supervisor inspected the subject staircase before permitting plaintiff to begin his assignment.

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

Since plaintiff contends that his injury arose from a dangerous condition of the workplace, defendant Neighborhood Partnership established prima facie that it was not liable under common-law negligence principles or Labor Law § 200 by submitting a sworn affidavit by its principal stating that no one from Neighborhood ever visited the demolition site or otherwise had notice of the dangerous condition of the staircase.  In opposition, plaintiff failed to submit admissible evidence raising an issue of fact whether Neighborhood created or had actual or constructive notice of the dangerous condition.


Humphrey v Park View Fifth Ave. Assoc. LLC
January 28, 2014
Appellate Division, First Department

Plaintiff was allegedly injured when an aluminum beam fell from above him, struck the 18-foot long wooden stringer he was carrying on his shoulder, and knocked him to the ground.  At the time of the accident, plaintiff was employed by a subcontractor, Pinnacle.  Plaintiff commenced this action and moved for partial summary judgment on his Labor Law § 240(1) claim against defendants property owner and construction manager (“Defendants”).  Defendants cross-moved to dismiss the common-law negligence and Labor Law § 200 claims, and the trial court denied both motions.  

Labor Law § 240(1) (DRA)

Defendants argued the fact that plaintiff did not see the beam hit the stringer or know where the beam fell precludes partial summary judgment in plaintiff’s favor, as well as the fact that plaintiff was the sole witness to the accident.  The First Department rejected these arguments because “the testimony demonstrates that the beam came from somewhere above plaintiff and was a proximate cause of his injuries.”  Regardless of how high the beam was above plaintiff when it fell, the First Department also held the height differential was not de minimus, given the amount of force the aluminum beam was able to generate during its descent.

PRACTICE POINT:  Gone are the days where the defense to a Labor Law claim can be that the accident was un-witnessed.  Here, without contradictory evidence, the plaintiff’s testimony regarding how the accident occurred is sufficient to establish the prima facie case.  There is no surprise here that when a falling object, here an aluminum beam, strikes a large stringer the plaintiff is carrying, that it is a violation of the labor law. 

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

 

The First Department held that the defendants were not entitled to dismissal of the common-law negligence and Labor Law § 200 claims. Because the accident arose out of the manner of the work of plaintiff's employer (Pinnacle), as opposed to a defect on the premises, the relevant inquiry is whether defendants had supervisory authority over plaintiff's work.  The record shows that an employee of defendant construction manager testified that he would walk around with Pinnacle employees and made sure that they were doing what they're supposed to do and that he would correct problems with the work Pinnacle employees.   This testimony raised a triable issue of fact as to whether the construction manager supervised or controlled plaintiff's work. Moreover, defendants did not submit any proof showing that defendant property owner did not have any such supervisory authority.

 
Stier v One Bryant Park LLC
January 28, 2014
Appellate Division, First Department

Plaintiff, a plumbing subcontractor’s employee, allegedly slipped on an unsecured piece of masonite.  An employee of defendant Tishman Construction testified that “duct tape securing the masonite in the general area outside the elevators at the C-2 level needed ‘sprucing up’ because it was starting to ‘deteriorate.’”   

Plaintiff commenced this action for common-law negligence and violations of Labor Law § 200 and § 241(6) predicated upon 23-1.7(d) and (e).  Defendants moved for summary judgment dismissing plaintiff’s Complaint, and the trial court granted defendants’ motion.

Labor Law § 241(6) (JAE)

With regard to the § 241(6) allegation, the court found no evidence that plaintiff’s accident was the result of a failure to remove or cover a foreign substance, and masonite is not a slipping hazard contemplated by 12 NYCRR 23-1.7(d).  Furthermore, 12 NYCRR 23—1.7(e), which requires work areas to be kept free of tripping hazards, is inapplicable because plaintiff does not allege that he tripped on an accumulation of dirt or debris.  Rather, he testified that he slipped on an unsecured piece of masonite, which was not a tripping hazard.

The court also declined to consider plaintiff’s fact-based argument that his accident arose from a slippery condition caused by construction dust since it is raised for the first time on appeal.

Take Away:  This case does a really good job of demonstrating the importance of pinning down exactly how a plaintiff alleges he fell and what participated a fall.  Again, here, plaintiff claimed that he slipped on an unsecured piece of masonite, which was being held down by duct tape.  12 NYCRR 23-1.7(d) addresses slippery floors and passageways, and states that ice, snow, water, grease and any other substance which may cause slippery footing shall be removed.  This section was found inapplicable because plaintiff testified that he slipped on the masonite, a material that is not inherently slippery, and, prior to the appeal, no other substance or material was mentioned. 

12 NYCRR 23-1.7(e), which addresses tripping, likewise was found not to apply because plaintiff said he slipped, not tripped.  In other words, it does not appear that his foot caught on any object.

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

Defendants established their entitlement to judgment as a matter of law on plaintiff's Labor Law § 200 and common-law negligence claims, and plaintiff failed to raise a triable issue of fact as to such claims. Defendants’ evidence established that they neither created the allegedly dangerous condition nor had actual or constructive notice of it. While an employee of defendant Tishman Construction Corporation of New York testified that the duct tape securing the masonite in the general area outside the elevators at the C–2 level needed “sprucing up” because it was starting to “deteriorate,” this testimony is insufficient to establish that defendants had actual notice that the subject masonite was unsecured at the time of plaintiff's accident.  Contrary to plaintiff's claim, there was no evidence of a recurring condition at the subject piece of masonite that routinely went unaddressed.

Moreover, the evidence demonstrates that defendants did not have the authority to control the activity bringing about plaintiff's injury to enable them to avoid or correct an unsafe condition. Nor did they have responsibility for maintenance of the masonite on the floor where plaintiff's injury occurred, since that level of the building had been turned over to a nonparty entity, which continued construction on that floor level.

 

Pavon v Koral
January 29, 2014
Appellate Division, Second Department

Plaintiff, who was employed by a roofing contractor in connection with the renovation of a single-family residence owned by the defendant Yossef Koral (“Koral”), was allegedly injured when he fell from an unsecured ladder.  He subsequently commenced this action, asserting, among other things, violations of Labor Law § 240(1) and § 241(6).  Koral moved for summary judgment dismissing plaintiff’s Complaint, asserting the statutory homeowner’s exemption and plaintiff cross-moved for summary judgment on his § 240(1) claim.  The trial court granted Korals’ motion, and denied plaintiff’s cross-motion on the issue of liability.

Labor Law § 240(1) (DRA)

Labor Law § 240(1) and § 241(6) contain identical language exempting from the statutes owners of one and two-family dwellings who contract for but do not direct or control the work.  The homeowner's exemption "was enacted to protect those who, lacking business sophistication, would not know or anticipate the need to obtain insurance to cover them against absolute liability."

Here, the Second Department held “there remain triable issues of fact as to whether Koral, who owned real estate development businesses, exercised the requisite degree of direction and control over the renovation of his home to impose liability under Labor Law §§ 240(1) and 241(6).”  For those same reasons, the Second Department affirmed denial of plaintiff’s cross-motion.   

PRACTICE POINT:  Remember that the exemption for single and two family homes exists only if the owner does not exercise direction or control over the work being done.  My best advice to you all personally is that if someone is doing work on your house; go out for coffee until they are done. 

 

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

Regulation § 23–6.1(c) mandating that hosting equipment be operated in a “safe manner at all times” is unquestionably general, and inapplicable where plaintiff not injured while operating hoist (Sharrow Dick Corp., supra).
Regulation § 23–6.1(d) providing that material hoisting equipment shall not be loaded in excess of the live load for which it was designed and requiring that loads be properly trimmed, securely slung and balanced, is sufficiently specific to support a Labor Law § 241(6) cause of action, and an issue of fact existed as to whether violation of regulation was a proximate cause of injury where plaintiff injured when section of pipe that was hoisted with side boom and cables fell on him (Rissel v Nornew Energy Supply, Inc., supra).  Regulation § 23–6.1(d) held potentially applicable where plaintiff injured by brick that fell from pallet being hoisted to building roof (Kretowski v Braender Condominium, 57 AD3d 950, 871 NYS2d 304 [2d Dept 2008]); applicable to accident occurring when plaintiff was “hoisting” by pulling on a rope tied to a cable in order to draw an elevator cable up to a “cat-head" (Hayden v 845 UN Ltd. Partnership, 304 AD2d 499, 758 NYS2d 647 [1st Dept 2003]).
Regulation § 23–6.1(d) held inapplicable to accident involving freight elevator, which is not a “material hoist” (Barrios v Boston Properties LLC, supra); inapplicable where scissor lift, from which truss fell onto plaintiff, was “aerial basket,” excepted from regulation governing material hoisting equipment for purposes of Labor Law liability (Karcz v Klewin Bldg. Co., Inc., 85 AD3d 1649, 926 NYS2d 227 [4th Dept 2011]).  Regulation § 23–6.1(d) cannot serve as the basis for Labor Law § 241(6) liability because mobile crane used by plaintiff is specifically exempt this regulation (Locicero v Princeton Restoration, Inc., 25 AD3d 664, 811 NYS2d 673 [2d Dept 2006]).
Regulation § 23–6.1(e) requiring a signal system for operators and signal men, cannot serve as the basis for Labor Law § 241(6) liability because mobile crane used by plaintiff is specifically exempt from this regulation (Locicero v Princeton Restoration, Inc., supra); issue of fact existed as to degree to which plaintiff's actions in directing hoisting of bucket on pulley system to seventh floor and receiving bucket may have contributed to accident (Lopez v Boston Properties, Inc., 41 AD3d 259, 838 NYS2d 527 [1st Dept 2007]).
Regulation § 23–6.1(h) requiring that loads which had tendency to swing or turn freely during hoisting be controlled by tag lines, is insufficient to sustain a Labor Law § 241(6) claim in both the Second Department and Third Department (Morrison v City of New York, 5 AD3d 642, 774 NYS2d 763 [2d Dept 2004]; Smith v Homart Development Co., supra).  However, regulation § 23–6.1(h) is sufficiently specific to support a Labor Law § 241(6) cause of action in the First Department, and an issue of fact existed as to whether tag lines properly controlled movement of bundle of curtain wall panels as it was being hoisted from flatbed truck where plaintiff fell 15 feet to ground when bundle of curtain wall panels being hoisted off flatbed truck swung toward him (Naughton v City of New York, 94 AD3d 1, 940 NYS2d 21 [1st Dept 2012]).
Regulation § 23–6.1(j)(1) providing that hoist brakes shall be supplied for every material hoist and that “[e]ach manually-operated material hoist shall be equipped with an effective pawl and ratchet”, is sufficiently specific to support a Labor Law § 241(6) cause of action (Mattison v Wilmot, 228 AD2d 991, 645 NYS2d 122 [3d Dept 1996]).  Based on evidence that a hand-cranked hoist, although expected to lock automatically with a click, did not do so, a triable issue of fact existed as to whether regulation § 23–6.1(j)(1) was violated (Carroll v Metropolitan Life Ins. Co., 264 AD2d 336, 694 NYS2d 369 [1st Dept 1999]).
Regulation § 23–6.1(j)(1) held inapplicable where plaintiff struck in face by handle of hand-operated hoisting machine when scaffold he was raising unexpectedly fell (Strangio v Sevenson Envtl. Servs., Inc., 74 AD3d 1892, 905 NYS2d 729, modified on other grounds, 15 NY3d 914, 913 NYS2d 639 [4th Dept 2010]); an issue of fact existed as to degree to which plaintiff's actions in directing hoisting of bucket on pulley system to seventh floor and receiving bucket may have contributed to accident (Lopez v Boston Properties, Inc., supra); inapplicable where plaintiff injured when wooden lever used to push steel beams off side of truck he was unloading sprung up and hit his head (Toefer v Long Is. R.R., 308 AD2d 579, 764 NYS2d 865 [2d Dept 2003]); inapplicable where plaintiff using rope rather than mechanical hoisting device to lower bucket of steel bolts (Aloi v Structure-Tone, Inc., 2 AD3d 375, 767 NYS2d 832 [2d Dept 2003]); inapplicable where plaintiff’s injury unrelated to the hoisting device in use at that time because he admitted that injury occurred due to his manual lifting of electrical buss bars (Brown v New York City Economic Dev. Corp., 234 AD2d 33, 650 NYS2d 213 [1st Dept 1996]).

 


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Labor Law Pointers

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David R. Adams

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V. Christopher Potenza

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Steven E. Peiper

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            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
[email protected]                                                           [email protected]

            V. Christopher Potenza                                                        Marc A. Schulz
[email protected]                                                            [email protected]

 

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