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Labor Law Pointers - Volume III, No. 6

Labor Law Pointers

Volume III, No. 6
Wednesday, April 2, 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. 

That is a quote, in fact the opening line, from Dan Kohane’s Coverage Pointers newsletter published every other week.  I add it here for a specific reason; I can’t think of a better way to express our attitude towards complex and challenging labor law and indemnity fact patterns, our willingness and enthusiasm to provide help, in any way we can, to anyone with a labor law question.  I was helping my daughter write her speech to induct new members into the National Junior Honor Society last week and she wanted to open with a quote.  The only quote I knew about her topic, “Character”, is the often quoted “character is doing the right thing when you know that no one is watching.”  She did not want to use it telling me that everyone had heard that quote.  Recall that she is 14 years old.  We spent several hours on the internet looking for a different quote and finally decided that sometimes the reason a quote is popular is that it truly embodies the subject and that nothing else will capture the thought as well.  After that long introduction, I have come to the conclusion that there is no way I can say it any better than Dan has so henceforth I shall open Labor Law Pointers with the admittedly stolen phrase, “Do you have a situation, we love situations” , or, as Dan often does, a slight twist on the exact phrase.  By the way if you do not now receive Coverage Pointers just drop us an email and we will get you on the distribution list.

We have 17 cases for your reading pleasure this month, a heavy month by any measure.  In addition to the cases we have analyzed for you this month, I have attached a hyperlink to a study submitted by Michael R. Hattery, PhD, Director of Local Government Studies at the Nelson A. Rockefeller Institute of Government at the University at Albany and consulted on by R. Richard Geddes, PhD, Associate Professor and Director, Cornell Program in Public Infrastructure Policy, Department of Policy Analysis and Management, College of Human Ecology, Cornell University entitled “The Costs of Labor Law 240 on New York’s Economy and Public Infrastructure”.  I highly recommend reading at least the Executive Summary of this report.  While I will not attempt to summarize the entire report, it is very interesting to note that a comparison between New York and Illinois done.  In Illinois their version of 240 was repealed in 1995 and from that point forward Illinois went from having 2.7 non-fatal injuries per 100 construction workers more that New York to having .7 less than New York.  When the same study was done on fatal falls the number went from 1.7 more than New York before the law was repealed to 2.0 fewer falls in Illinois after the law was changed to eliminate absolute liability.  The study also goes into the economic impact of the law on New York insurers and insureds.  The hyperlink is http://www.nycji.org/images/documents/2014-02-study-The-Costs-of-Labor-Law-240-on-New-York-Economy-and-Public-Infrastructure.pdf

That is all I have for now, some interesting cases for you.  As always please feel free to share this newsletter with anyone you feel may enjoy it and by all means give us a call or send an email if you have any questions labor law or indemnity related, we just love situations. 

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.
Morato-Rodriguez v Riva Constr. Group, Inc.
March 3, 2014
Appellate Division, First Department

Plaintiff allegedly was injured when the open A-frame ladder he was standing on became unstable, wobbled, and he fell.  Plaintiff commenced this Labor Law § 240(1) action against various defendants.  Plaintiff moved for partial summary judgment as to liability against all defendants, and defendant tenant Admit One LLC’s (Admit One) cross-moved to dismiss the complaint.  The trial court granted plaintiff’s motion, and denied Admit One's cross-motion, finding that Admit One's status as a tenant does not shield it from liability under § 240(1).

Labor Law § 240(1) (DRA)

Plaintiff demonstrated his prima facie entitlement to summary judgment on the issue of defendants' § 240(1) liability through his testimony that, at the direction of the defendants' site foreman, he used the only ladder on the floor, an open A-frame ladder "not too far" from the foreman's toolbox, and that while he was standing on it, the ladder became unstable, wobbled and fell, causing him to fall and sustain injury. 

In opposition, defendants raised an issue of material fact.  In his affidavit, the site foreman avers that prior to plaintiff's accident, he directed plaintiff not to use "a couple of ladders, broken-up and busted-up" and placed by the garbage bins.  He further averred that "at least two A-frame sturdy ladders" were on the floor, and that he told plaintiff to "sweep the floor until a safe . . . ladder" was available.  According to the foreman, upon arriving at the scene of the accident, he observed that plaintiff used a ladder that the foreman had specifically instructed him not to use.

The First Department held these competing versions of what transpired raise factual questions as to whether plaintiff was provided an adequate ladder, and, if so, whether he knew it was available and that he was expected to use it, but nevertheless unreasonably chose not to use it, thereby causing his injury.  Thus, plaintiff was not entitled to partial summary judgment on his Labor Law § 240(1) claim\, and the First Department modified the trial court’s decision.

However, the First Department affirmed the trial court’s decision regarding Admit One as its reliance on Ferluckaj v Goldman Sachs & Co, 12 NY3d 316 [2009] was misplaced.  Unlike the tenant in that case, here the testimony of Admit One's vice president establishes that it selected the contractor for the work and substantially directed and controlled it.  Moreover, emails provided by the architect further demonstrated that Admit One was actively engaged in the build-out. 

PRACTICE POINT:  A contractor, who actually supervises, directs or controls plaintiff’s work will always be a proper labor law defendant.  That is in addition to any contractor who retains the authority to supervise, direct or control the work, usually via contract.  Additionally, as in the instant case, a contractor who selects the sub-contractor is going to have a much more difficult time in avoiding labor law liability.  Also in this case, the defendant was able to define a sole proximate cause defense by establishing a question of fact as to whether or not the plaintiff was instructed not to use this specific ladder and to use one of the two sturdy ladders available on the floor.  Recall the three basic steps in establishing a sole proximate cause defense are: 1) an available and 2) appropriate safety device which the plaintiff has 3) been instructed to use but for no good reason failed to use or misused.

Myles v Claxton
March 5, 2014
Appellate Division, Second Department

Plaintiff, an employee of nonparty Delfino Insulation Co., Inc. (Delfino), allegedly was injured when he fell from an unsecured ladder while installing insulation in the ceiling of a newly constructed single-family home.  The owner of the home, defendant Claxton, had contracted with defendant Vintage Projects, Inc. (Vintage), for Vintage to act as the construction manager of the project.  Plaintiff's employer, Delfino, contracted directly with Claxton and was not a party to any contract with Vintage.

Plaintiff commenced this common-law negligence and Labor Law §§ 200, 240(1), and 241(6) action against Claxton and Vintage.  After discovery was completed, plaintiff moved for summary judgment against Vintage on his § 240(1) claim, and Vintage cross-moved, among other things, for summary judgment dismissing the §§ 240(1) and 241(6) claims.  The trial court denied plaintiff's motion, and granted Vintage's cross motion.  Plaintiff appealed.

Labor Law § 240(1) (DRA)

A construction manager without authority to control the activity which brought about plaintiff's injury is not considered an “agent” of the owner under Labor Law §§ 240(1) and 241(6).  Moreover, the label given a defendant, whether "construction manager" or "general contractor," is not determinative on this issue; rather, the core inquiry is whether the defendant had the "authority to supervise or control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition."

Here, in support of its cross-motion, Vintage submitted evidence establishing that it lacked the requisite authority, including Vintage's contract with Claxton, which provided that Vintage would not have "control over or charge of and shall not be responsible for construction means, methods, techniques, sequences, or procedures" of the contractors on the project.  Additionally, the deposition testimony of plaintiff himself, as well as that of Vintage's principal, showed that, consistent with the contract, Vintage did not, in fact, exercise any such control.

In opposition, plaintiff failed to demonstrate the existence of a triable issue of fact.  Accordingly, the Second Department affirmed the trial court’s decision to (1) grant those branches of Vintage's cross-motion for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims asserted against it, and (2) to deny that branch of the plaintiff's motion for summary judgment on his § 240(1) claim insofar as asserted against Vintage.

PRACTICE POINT:  Once again the status of a contractor as an appropriate defendant in a labor law case is not dependent on the title used in any contact, but rather on the authority provided that entity in the contract and the actual manner in which the work is done on the project.  Any defendant, regardless of the label they choose to assume, who maintains the authority to supervise, direct or control the means and methods of the work performed or who actually supervises, directs or controls such work will be an appropriate labor law defendant.

Guzman v 170 W. End Ave. Assoc.
March 11, 2014
Appellate Division, First Department

Plaintiff allegedly was injured when he was struck by a 100-pound electrical cable attached to a scaffold that fell from a height of approximately 27 stories.  Plaintiff commenced this Labor Law § 240(1) action against defendant building owner to recover for injuries allegedly sustained while he was performing waterproofing on front of building on motorized scaffold that was suspended between second and third floors.  Defendant building owner brought third-party claim for contractual indemnification against Kay Waterproofing Corp. (Kay), plaintiff’s employer.

Plaintiff and defendant building owner moved for summary judgment on the § 240(1) claim.  Defendant building owner also moved for summary judgment on its contractual indemnification claim against third-party defendant, and Kay cross-moved to dismiss the third-party complaint. The trial court granted plaintiff's motion for summary judgment as to liability on the § 240(1) claim; denied defendants' motion to dismiss the 240(1) claim and declined to consider their motion as to the Labor Law § 241(6) claim; and granted third-party plaintiffs motion to the extent of conditioning the order upon a finding of negligence attributable to Kay, and denied Kay's motion for summary judgment dismissing the third-party complaint.  Defendant building owner and Kay both appealed.

Labor Law § 240(1) (DRA)

The First Department declined to consider Kay's argument that Labor Law § 240(1) is inapplicable since it is raised for the first time on appeal.  Were the Court to consider it, it would reject it because plaintiff established that his injuries were caused, at least in part, by the absence of proper protection as required by the statute.  The evidence demonstrates that he was struck by a 100-pound electrical cable that fell from a height of approximately 27 stories because it was improperly secured to a scaffold. 

The First Department held that plaintiff was not required to show that the cable was being hoisted or secured when it fell.  In view of the foregoing, Kay's contentions regarding the 
Labor Law § 241(6) claim are academic. 

PRACTICE POINT:  Gone are the days where the falling object needed to have been in the process of being hoisted, as long as it is an object which could be secured and was not appropriately secured leading to the object falling.  Here, the cable could have, in the opinion of the court, been secured, and the failure to so secure the cable violated the 240(1) and caused plaintiff’s injuries. 

Indemnity Issues in Labor Law (SEP)

The defendants in this case moved for contractual indemnification against Kay pursuant to a clause that provided indemnity to “the Owner Parties for any liability or claims for damages...arising...as the result of any event or occurrence which arises in connection with the Work.  The trial court ruled that the “Owner Parties” were entitled to indemnification upon demonstrating that Kay was negligent.  In modifying the trial court’s Order, however, the First Department noted that the clause at issue has no requirement that Kay be negligent.  Rather, the plain wording of the indemnity provision only requires that it arise out of an event or occurrence in connection with the Work.  Here, the loss obviously arose out of the Work, and thus, the indemnity provision was triggered without a showing of negligence.

In so holding, the First Department noted the fact that “Owner Parties” were not negligent.  As such, the fact that the provision at issue did not contain savings’ language did not impact its enforceability as it was not in violation of General Obligations Law 5-321.  The Court also rejected Kay’s argument that it only owed indemnity to the “owner.”   The Court noted that the agreement specifically provided for indemnity running to “Owner Parties”  which included the managing agent of the premises.

Peiper’s Point – While we agree with the decision, we have some reservations about issues discussed in the dicta of the opinion.  For one, we not sure savings language is required in an indemnity agreement governed by 5-321.  As we’ve reported several times over the years, a party to a commercial lease may be indemnified for its own negligence if other parameters are established during the motion practice.  As such, savings language would appear, at least to us, to be superfluous.  Did the Court confuse 5-322.1 (governing construction agreements) with 5-321 (governing leases), or, as it wrote, does imply that 5-321 prohibits a leasee from being indemnified for its own negligence.  Under the latter scenario, the Court appear to be moving from the last 6 to 8 years of precedent on this issue. 

In addition, we are troubled by the Court’s broad interpretation of the term “Owner Parties.”  Indemnity provisions, regardless of contract or lease, should be strictly construed.  This case could be read to support an argument that an indemnity provision should be read to include parties who are otherwise unknown at the time of the contracting.  That, in our humble opinion, would be expanding the scope of the agreement beyond its appropriate scope.  Here, however, the lease agreement in question appears to have contemplated a broader reading.  Thus, supporting the indemnity claim of the MGA. 

Penaranda v 4933 Realty, LLC
March 11, 2014
Appellate Division, First Department

Plaintiff, employed by third-party defendant tenant K & S Construction (K&S), was allegedly injured when he was thrown from a Bobcat inside defendant's warehouse.  Defendant landlord 4933 Realty, LLC had contracted with K&S, plaintiff's employer, to construct a concrete curb around the perimeter of the nearby parking lot.  Plaintiff was helping to remove plywood, which was allegedly interfering with the construction project, and was positioned on the Bobcat in order to provide balance or serve as a counterweight for the plywood on the Bobcat's front forks.  He was thrown off when the two back wheels of the Bobcat lifted up unexpectedly.

Plaintiff commenced this Labor Law §§ 240(1) and 241(6) action against defendant landlord, who filed a third-party complaint against tenant for contractual indemnification.  Defendant landlord and third-party defendant tenant each filed motions to dismiss the respective complaints, and the trial court granted both motions.  Plaintiff appealed. 
  
Labor Law § 240(1) (DRA)

The issue here is whether plaintiff was engaged in construction work when removing the plywood so as to afford him the protection of the Labor Law.  Cases have held that "construction" includes certain ancillary work that is "necessary and incidental" to or "an integral part of" a construction project (see Johnson v Rapidarda, 262 AD2d 365 [2d Dept 1999]; Curley v Gateway Communications, Inc., 250 AD2d 888 [3d Dept 1998]).  Here, the Frist Department held it is unclear whether plaintiff's removal of the plywood was sufficiently related to the construction project.  Accordingly, there is a question of fact as to whether plaintiff was engaged in work that was "necessary and incidental" or an integral part of constructing the curb sufficient to accord Labor Law protection.

Assuming that plaintiff was engaged in such work, the First Department found that falling from the Bobcat is the type of gravity-related event contemplated by the Court of Appeals in Runner.  The First Department stated that in Potter v Jay E. Potter Lumber Co., Inc., 71 AD3d 1565 (4th Dept 2010), the Fourth Department, relying on Runner, similarly found that a worker, who like plaintiff here, was positioned as a counterweight for a load on a forklift and was catapulted forward when the forklift became unstable, was entitled to the statutory protections.
 

PRACTICE POINT:  Any case which starts with the premise that plaintiff was being used as a counterbalance for a forklift it is not hard to follow the chain of events that leads to injury.  That aside, you will recall that 240(1) is (at least for today) an absolute liability statute which does not allow for consideration of, or reduction due, to the culpable conduct of the plaintiff.  It is critical to recall the four basic building blocks for a prima facie labor law case:
Is this a statutory defendant?
Is the project “covered” by the statute?
Is the injured party “protected” by the statute?
Is the accident an “event” within the contemplation of the statute?
Here, the court found a question of fact as to the “project” issue, in other words, was the specific task being undertaken by the plaintiff sufficiently tied to the construction project to afford the plaintiff the extraordinary protections of the labor law.
      
Labor Law § 241(6) (JAE)

The court then determined that the provisions of the Industrial Code invoked by plaintiff do not support his Labor Law § 241(6) claim, and, accordingly, that claim was properly dismissed (NYCRR 23-9.2[b][1] [requirements are merely restatement of common law rule], and NYCRR 23-9.2[c] [excessive loading prohibitions insufficient to support Labor Law 241(6) claim]).

Indemnity Issues in Labor Law (SEP)

In addition to defending the Labor Law claim, defendant landlord commenced a third-party action against K&S pursuant to an alleged construction contract.  Here, however, where there was a question of fact relative to the activities in which plaintiff was engaged at the time of the incident, it follows that any ruling on K&S’ potential indemnity obligations was premature.

Selca v Dutchess Heritage Sq. Partners, LLC
March 12, 2014
Appellate Division, Second Department

Plaintiff contracted with defendant Dutchess Heritage Square Partners, LLC (Dutchess Heritage), to provide general maintenance services at a building complex owned by Dutchess Heritage.  Plaintiff allegedly was injured while working in a portion of the complex that had been leased by defendant DMRB, Inc., d/b/a The Little Gym of East Fishkill (The Little Gym), when he fell from a ladder while attempting to service a smoke detector by cleaning the sensor head of the smoke detector with a small brush and compressed air.

Plaintiff testified at his deposition that dust would occasionally build up on the sensor heads of the complex's smoke detectors, which would trigger the alarm.  He testified that he had performed the same service on other smoke detectors in the complex on six prior occasions.  The president of the alarm company stated in an affidavit that the alarm system remains operable even when any particular smoke detector needs servicing. 

Plaintiff, and his wife suing derivatively, commenced this Labor Law § 240(1) action against Dutchess Heritage and The Little Gym.  Plaintiffs moved for summary judgment, and defendants separately cross-moved to dismiss the § 240(1) claim insofar as asserted against each of them.  The trial court denied plaintiffs’ motion, and granted defendants’ motions.  Plaintiffs appealed.

Labor Law § 240(1) (DRA)

Labor Law § 240(1) protects workers from elevation-related hazards while they are involved in the "erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure."  Thus, where a worker is engaged in routine maintenance, the statute is inapplicable. Here, defendants established that the task plaintiff was engaged in at the time of his accident fell within the category of routine maintenance as plaintiff's work involved removing dust from the sensor head of a smoke detector; a task plaintiff had performed on several prior occasions and that was part of his general maintenance duties.

Therefore, the Second Department held the trial court properly granted defendants' separate cross-motions to dismiss the Labor Law § 240(1) insofar as asserted against each of them.  For the same reason, the Second Department affirmed the trial court’s denial of plaintiffs' motion for summary judgment on the cause of action alleging a violation of Labor Law § 240(1). 

PRACTICE POINT:  The designation of a task as routine maintenance can be difficult, but where the task is “part of his (plaintiff’s) general maintenance duties” the Court’s job is simplified.  When looking at a case which may afford you the defense of routine maintenance, look for a maintenance log which will capture the regularity with which the task is undertaken and seek to establish the fact that the same task is carried out systematically and regularly.  A belt replaced every few years may be as routine a task as a roof vent being uncovered every spring; as long as it is done on a routine schedule, a very strong argument can be made that it is routine maintenance.

Feinberg v Sanz
March 13, 2014
Appellate Division, Second Department

At about 7:00 p.m. on July 31, 2008, decedent fell to his death from the roof of a five-story building in Manhattan allegedly owned by defendants/third-party plaintiffs (Defendants).  On the date of the accident, decedent was employed by third-party defendant Valana Construction Corp. (Valana), as a "helper" on a project to replace the building's roof and perform facade restoration work.  Defendants' contract with Valana provided that working hours for the project were to be between 8:00 a.m. and 5:00 p.m.  According to Defendants, the contract limited working hours so that tenants would not be disturbed when they returned home in the evening. 

At a deposition, Valana's president testified that in keeping with the contract, all work and clean-up on the project was always completed by 5:00 p.m., and that decedent was never given overtime.  In addition, one of decedent's coworkers testified at a Workers' Compensation hearing that everyone finished working at 4:30 p.m. on the day of decedent's accident, and that no one worked overtime that day.  A police lieutenant who responded to the accident scene within minutes after receiving a report of decedent's fall observed that the construction site appeared to have been "closed up for the workday," and items were covered by protective tarps.  Both the lieutenant and Defendants' managing agent observed beer bottles and cans on the roof. A forensic toxicology report included in decedent's autopsy report indicated that his blood alcohol content was .20%.

Plaintiffs commenced this action alleging common-law negligence and violations of Labor Law §§ 240(1) and 241(6).  After depositions had been conducted, Defendants moved for summary judgment dismissing the complaint, primarily contending that the accident had occurred after the completion of the work day when decedent was no longer engaged in any activity protected by the Labor Law, and that decedent's intoxication was the sole proximate cause of his fall from the roof.  In opposition, plaintiffs argued there was a triable issue of fact as to whether decedent's accident was work-related.  Plaintiffs' position was based upon the deposition testimony of plaintiff Claudia Valerio, decedent's widow, who testified that at about 5:30 p.m. on the day of the accident, decedent called her to say he was "going to work overtime."  The trial court granted that branch of defendants' motion which was for summary judgment dismissing the complaint.

Labor Law § 240(1) (DRA)

The Second Department held that defendants made a prima facie showing of their entitlement to judgment as a matter of law dismissing the Labor Law §§ 240(1) and 241(6) claims.  Defendants established, prima facie, that decedent was not engaged in any of the enumerated activities protected under the statute at the time of his fall by presenting evidence that the accident occurred at approximately 7:00 p.m., long after decedent and his coworkers had completed their work for the day. 

In opposition, plaintiffs failed to raise a triable issue of fact.  Although hearsay evidence may be considered in opposition to a motion for summary judgment, such evidence alone is not sufficient to defeat it.  The hearsay evidence that decedent told Claudia Valerio at about 5:30 p.m. that he was going to work overtime was insufficient, when combined with plaintiffs' limited non-hearsay submissions, to raise a triable issue of fact as to whether decedent was actually engaged in a statutorily protected work activity at the time of his fall.

PRACTICE POINT:  The plaintiff, in order to recover, must qualify as an individual whom the labor law is intended to protect.  For a plaintiff to qualify, he must be “so employed” at the time of the accident.  Here there is simply no proof in admissible form that the plaintiff was working at the time of the accident.  The claim that he was actually working simply because he told his wife he was working, when all other evidence leads to the conclusion that he was having a few beers after work, fails here, as it always has. 

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

The defendants also made a prima facie showing of their entitlement to judgment as a matter of law dismissing the cause of action alleging Labor Law § 200/ common-law negligence based on their claim that the decedent's intoxication was the sole proximate cause of his fall. The common-law negligence cause of action is premised on the defendants' alleged failure to provide the decedent with a safe work place, including proper safety devices to protect against a fall. However, in light of the defendants' prima facie showing that the decedent's accident occurred after work had been completed and the work site closed for the day, and the plaintiffs' failure to raise an issue of fact in that regard, the absence of safety devices cannot be deemed a proximate cause of the decedent's non-work-related fall.

 

 

 

Fernandez v 213 E. 63rd St. LLC
March 13, 2014
Appellate Division, First Department

Plaintiff, while installing black iron into a concrete ceiling, was allegedly injured when the A-frame ladder he was using “kicked out” from underneath him, causing him to fall to the ground.  He commenced this Labor Law § 240(1) action against various defendants, and the trial court granted plaintiff’s motion for summary judgment on the issue of liability.  Defendants appealed. 

Labor Law § 240(1) (DRA)

The First Department held that based on the evidence submitted, including plaintiff’s deposition testimony, he established his entitlement to judgment as a matter of law.  Defendants' opposition failed to raise a triable issue of fact as to whether plaintiff was the sole proximate cause of his injuries.  Even assuming that defendants presented sufficient evidence to raise a triable issue as to whether at the time of his accident, plaintiff, contrary to his deposition testimony, was using the ladder by leaning it against the wall in a folded position, defendants nonetheless offered no evidence that plaintiff was ever instructed not to use the ladder in this manner.  Accordingly, the First Department affirmed the trial court’s decision to grant plaintiff summary judgment.

PRACTICE POINT:  When a ladder kicks out, shifts, tips or moves in any way, the statute has been violated in the First Department.  Further, once the statute has been violated, the only defenses are sole proximate cause or recalcitrance of the plaintiff.  Where, as here, there is no evidence that the plaintiff was instructed to use the ladder only while in the open position there can be no sole proximate cause defense.  Recall the three basic steps in establishing a sole proximate cause defense are: 1) an available and 2) appropriate safety device which the plaintiff has 3) been instructed to use but for no good reason failed to use or misused.

Hargrave v LeChase Constr. Servs., LLC
March 13, 2014
Appellate Division, Fourth Department

The Penn Yan Central School District (District) hired defendant as the construction manager on a capital facilities project at its senior high school, and hired plaintiff's employer as the roofing contractor.  Plaintiff was walking backward on the roof dragging a new piece of insulation from one section of the roof to another section where his coworkers were working.  Plaintiff testified that a piece of old insulation had blown over from an upper roof into his path, causing him to trip on it and fall on a stack of boards on a flat roof.

Plaintiffs commenced this Labor Law §§ 240(1), 241(6), 200 and common-law negligence action against the construction manager, LeChase.  The trial court granted LeChase's motion to dismiss the amended complaint in part, by dismissing only the Labor Law § 240(1) and § 241(6) causes of action.  Plaintiffs appealed and LeChase cross-appealed.  Plaintiffs raise no issues on appeal with respect to the § 240(1) claim and thus are deemed by the Court to have abandoned any issues with respect to that claim. 

 

 

Labor Law § 241(6) (JAE)

The court rejected plaintiffs' contention that defendant was liable pursuant to Labor Law § 241 (6) as an agent of the District.  A construction manager may be liable as an agent of the owner if “the manager had the ability to control the activity which brought about the injury.”  Defendant established as a matter of law that it was not an agent of the owner because the owner had not delegated to it the authority to supervise and control plaintiff's work.  Rather, pursuant to the express terms of the contract between defendant and the District, defendant “had no control over or responsibility for the safety of the workers at the construction site.”  The deposition testimony and affidavits submitted further established that defendant acted in accordance with its authority under the contract, i.e., coordinating the schedules of the contractors and ensuring that their work complied with the requirements of the construction documents, and did nothing more.

Remember, coordinating and scheduling the flow of the work, without more, does not constitute authority to supervise and control the work. 

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

The Fourth Department ruled that the trial court erred in denying those parts of defendant’s motion seeking dismissal of the Labor Law § 200 and common-law negligence causes of action.  Where the plaintiff's injuries stem from a dangerous condition on the premises, an owner or general contractor may be liable in common-law negligence and under Labor Law § 200 if it has control over the work site and actual or constructive notice of the dangerous condition.  Defendant established that it was not an agent of the owner and was not responsible either for the performance of plaintiff's work or the premises on which that work was undertaken, and plaintiffs failed to raise a triable issue of fact.

Gonzalez v Magestic Fine Custom Home
March 19, 2014
Appellate Division, Second Department

In connection with the construction of a single-family home, plaintiff was working on stilts, taping and spackling the kitchen ceiling, when the stilts allegedly became entangled in an 
electrical cable or wire on the floor, causing him to lose his balance and fall to the ground. Defendant Magestic Fine Custom Home (Magestic) was constructing the home and hired defendant Draghi Contracting (Draghi) to do the framing work and to perform general supervision of the project.  Magestic also hired defendant Italiano Bros. Drywall, Inc. (Italiano Bros.), to install the drywall or sheetrock, and Italiano Bros. hired plaintiff's employer, Nico Drywall Corp., to do taping and spackling work.

Plaintiff commenced this Labor Law § 241(6) action.  Draghi cross-moved for summary judgment to dismiss the § 241(6) claim, and to recover on its third-party claim against Italiano Bros. for contractual indemnification.  Upon renewal, the trial court denied Draghi’s cross-motion.

Labor Law § 241(6) (JAE)

In reversing the trial court, Draghi demonstrated its prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 241(6) cause of action by establishing that it was not an owner, general contractor, or statutory agent of the owner or general contractor.  Draghi did not hire any contractors and was not charged with “the duty of coordinating all aspects of [the] construction project.”  Rather, Draghi merely assumed a role of “general supervision,” pursuant to which it checked the progress of the work and reported to Magestic.  Draghi demonstrated that it did not have the ability to control the activity which brought about the plaintiff’s injury.  Thus, Draghi established that it could not be held liable under Labor Law § 241(6).

Indemnity Issues in Labor Law (SEP)

Somehow Draghi possessed a contractual indemnity claim against Italiano (even though Draghi would not have been party to a contract with Italiano).  In any event, the claim for contractual indemnification was granted despite the fact that the clause at issue was allegedly in violation of General Obligations Law 5-322.1.  However, where, as here, there was no negligence attributable to Draghi the indemnity clause was enforceable as written.  In so holding, the Appellate Division noted that Draghi’s actions to undertake “general duties to oversee work” was not sufficient support a claim for  negligence against it.

Peiper’s Point – Generally, to support a claim for negligence the party opposing an indemnity claim must establish that the movant exercised supervision, direction or control over the actual work being performed by the injured party.  The right, per the contract, to control the work is insufficient to support a negligence theory.

Gonzalez v Magestic Fine Custom Home
March 19, 2014
Appellate Division, Second Department

In this same action as the preceding Gonzalez case, Italiano Bros. also moved to dismiss the Labor Law § 241(6) claim asserted against it, and the trial court denied its motion too.  Italiano Bros. appealed.

Labor Law § 241(6) (JAE)

Unlike Draghi, above, Italiano Bros. was an appropriate labor law defendant, and in turn the court considered the merits of the § 241(6) claim.  The court found that Italiano failed to establish its prima facie entitlement to judgment as a matter of law regarding the alleged violation of 12 NYCRR 23-1.7(e)(2), which requires owners and contractors to maintain working areas free from tripping hazards such as debris and scattered materials “insofar as may be consistent with the work being performed,” and the alleged violation of 12 NYCRR 23-5.22(f), which provides that stilts may only be used on floor surfaces “kept free from obstructions, materials, debris, accumulations of dirt or slippery substances.” Although the Italiano’s evidence demonstrated that the electrical cable or wire which became entangled in the plaintiff's stilts was “an integral part of the construction,” the plaintiff's deposition testimony, which was submitted by the appellant in support of its motion, raised a triable issue of fact as to whether the electrical cable or wire was merely lying loose on the floor, unattached to any part of the house, and thus, was not, under the circumstances, an integral part of the construction.

 

 

Flores v Infrastructure Repair Serv., LLC
March 20, 2014
Appellate Division, First Department

Plaintiff was injured when he tripped while carrying an uncovered bucket of hot rubberized asphalt, which splashed out of the container, resulting in significant burns.  At the time of his accident, plaintiff was employed by nonparty Concrete Repair Services (Concrete) for a renovation project at a facility owned by defendant United Parcel Service of America, Inc. Defendant Infrastructure Repair Service, LLC (Infrastructure), the general contractorprovided the materials and safety equipment used by Concrete's workers at the project.

Plaintiff commenced this Labor Law § 200 action against Infrastructure, and his § 241(6) claim against both defendants. The trial court denied defendants’ motion for summary judgment dismissing plaintiff’s Complaint.  Defendants’ appealed. 

Labor Law § 241(6) (JAE)

Plaintiff’s Labor Law § 241(6) claim should have been dismissed. The complaint alleges violations of 12 NYCRR 23-1.7(h) and 12 NYCRR 23-1.8(c), which require adequate protective equipment and apparel for workers using or handling “corrosive substances and chemicals.”  In support of their motion for summary judgment, defendants provided expert evidence that these Industrial Code sections are inapplicable here, as the particular substance that injured plaintiff is not considered a corrosive substance or chemical, and plaintiff’s opposition to the motion failed to adequately rebut this evidence.

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

The First Department held that the trial court properly denied defendants' motion for summary judgment dismissing the Labor Law § 200 claim as against the general contractor, Infrastructure. As the essence of plaintiff's claim is that the safety equipment provided to him was inadequate, and Infrastructure does not dispute that it provided the safety equipment plaintiff used, plaintiff may hold Infrastructure liable under Labor Law § 200 for any negligence in its provision of safety equipment shown to have contributed to his injury.

Ridge v Gold
March 21, 2014
Appellate Division, Fourth Department

Plaintiff allegedly was injured when he fell from a ladder while working on an addition to a home owned by defendants Alice Gold and Susan Griesman.  In a proceeding before the Workers' Compensation Board (Board), the Board concluded that plaintiff lacked credibility and that no accident had occurred as alleged by plaintiff. 

Plaintiff thereafter commenced this Labor Law and common-law negligence action against the homeowners and defendant Jay Braymiller (defendant), the general contractor on the project.  Defendant moved for summary judgment dismissing the complaint against him on the ground "that the action is barred by collateral estoppel."  The trial court denied his motion, and he appealed.

Labor Law § 240(1) (DRA)

The doctrine of collateral estoppel "precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same."  Thus, "[t]he quasi-judicial determinations of administrative agencies are entitled to collateral estoppel effect where the issue a party seeks to preclude in a subsequent civil action is identical to a material issue that was necessarily decided by the administrative tribunal and where there was a full and fair opportunity to litigate before that tribunal."  "The party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination, whereas the party attempting to defeat its application has the burden of establishing the absence of a full and fair opportunity to litigate the issue in the prior action."

Here, defendant met his burden on his motion by establishing the "identicality and decisiveness of the issue" decided in the workers' compensation proceeding.  In support of his motion, defendant submitted the form entitled "C-7 Notice That Right To Compensation Is Controverted" (C-7 Notice) submitted to the Board by the workers' compensation insurance carrier, which specifically lists "[c]ausally [r]elated [a]ccident" as one of the grounds for controverting plaintiff's claim.  The narrative portion of the C-7 Notice states that the insurance carrier "raise[s] the issue of causal relationship because we believe that . . . [plaintiff] has a prior work related injury involving the neck and back." Defendant also submitted copies of the decisions of the Workers' Compensation Law Judge and the Board, which confirm that the issue whether a work-related accident had in fact occurred was in controversy at the hearing on plaintiff's workers' compensation claim.

In opposition to defendant's motion, plaintiff asserted that there was no identity of issue because the sole purpose of the hearing was to determine whether an employer-employee relationship existed.  Plaintiff, however, failed to attach excerpts of the hearing transcript to support his contention that the scope of the hearing was narrower than indicated on the C-7 Notice, even though it is clear from the record that he had a copy of the transcript.  There is likewise no merit to plaintiff's assertion that his credibility was not "clearly raised" or otherwise placed in issue in the workers' compensation proceeding.

"In any judicial or quasi-judicial inquiry[,] the credibility of any witness is always a most important factor" and it is well established that the Board "has broad authority to resolve factual issues based on credibility of witnesses and [to] draw any reasonable inference from the evidence in the record."  Therefore, the Fourth Department agreed with defendant that the trial court erred in denying his motion, and reversed the order insofar as appealed from, grant defendant's motion, and dismissed the complaint against him.

Although plaintiff claimed at oral argument of this appeal that the phrase "[c]ausally [r]elated [a]ccident" on the C-7 Notice referred to medical causation only and not to the issue whether an accident in fact occurred, he failed to raise that argument in his appellate brief or before the trial court, and thus that argument is not properly before us.  In any event, case law supports the conclusion that the phrase "causally related accident" encompasses both the happening of the accident and the causal relationship between the accident and the claimed injuries.  Moreover, whether an accident actually occurred – when such occurrence is controverted – is a threshold factual question in a workers' compensation proceeding.

Finally, plaintiff failed to establish that he did not have a full and fair opportunity to litigate the issue whether an accident in fact occurred in the prior proceeding.  Plaintiff, who was represented by counsel, had notice of the issue prior to the hearing, testified at the hearing, and had the opportunity to cross-examine the witnesses against him.  Inasmuch as the absence of an accident is dispositive of plaintiff's Labor Law and common-law negligence causes of action, the Fourth Department held that defendant "eliminat[ed] all triable issues of fact from the case," and he is therefore entitled to summary judgment dismissing the complaint against him. 

Justices Sconiers and Whalen dissent and would affirm the trial court’s denial of defendant’s motion for summary judgment dismissing the complaint because he failed to meet his initial burden of establishing that the doctrine of collateral estoppel bars plaintiff's action against him.  There is no question that the doctrine of collateral estoppel "gives preclusive effect" to the determination of a quasi-judicial agency like the Workers' Compensation Board (Board) as long as "two basic conditions are met: (1) the issue sought to be precluded is identical to a material issue necessarily decided by the administrative agency in a prior proceeding; and (2) there was a full and fair opportunity to contest th[at] issue in the administrative tribunal."  Courts have discretion in deciding whether to apply the doctrine of collateral estoppel, and the decision whether it is proper to do so "depends upon general notions of fairness involving a practical inquiry into the realities of the litigation."

The dissent concludes that, here, defendant failed to demonstrate that the issue whether an accident in fact occurred was clearly raised and decided in a prior workers' compensation proceeding.  The record, which does not contain any excerpts from the transcript of the hearing on plaintiff's workers' compensation claim or the documentation relied upon by the Workers' Compensation Law Judge and the Board that decided that claim, simply does not establish as a matter of law whether that issue was "addressed and decided" in the proceeding.  Moreover, the dissent noted that the Board found in its decision "that no accident occurred as [plaintiff] has alleged, based on [his] lack of credibility" (emphasis added), which is not equivalent to a finding that no accident occurred at all. In sum, the dissent finds that "the inadequacy of the record . . . precludes us from determining on the merits whether the doctrine of collateral estoppel should be applied."

The dissent also concludes that there is an issue of fact with respect to whether plaintiff had a fair and full opportunity to litigate the disputed issue before the Board.  Indeed, the record establishes that plaintiff did not receive sufficient notice that his employer was challenging in the workers' compensation proceeding whether a work-related accident actually occurred.  The C-7 Notice, submitted by defendant in support of his motion, did not put plaintiff on notice that his employer was challenging the issue whether an accident in fact occurred.  The C-7 Notice contains boxes that an employer may check to indicate the issues being raised in the proceeding.

Here, plaintiff's employer checked boxes titled "Employer-Employee Relationship," "Causally Related Accident or Occupational Disease," "Proper Carrier," and "General or Special Employment."  The remaining boxes – "Accident within meaning of Workers' Compensation Law," "Accident Arising Out Of and in the Course of Employment," and "Subject Matter Jurisdiction" – were left unchecked. Although plaintiff's employer raised an issue whether plaintiff's injuries were causally related to the alleged accident because of a prior work-related injury that plaintiff had sustained, the dissent noted the issue of injury causation is different from the issue whether an accident occurred at all.  The dissent also noted that defendant failed to include in his motion submissions a copy of the transcript of the hearing, thereby preventing them from determining whether plaintiff was put on notice that his employer was controverting the issue whether the accident actually occurred.  Therefore, the dissent concluded that there is a question of fact whether plaintiff had a full and fair opportunity to litigate that issue before the Board. 

PRACTICE POINT:  It is critical to remember that collateral estoppel applies only when "two basic conditions are met: (1) the issue sought to be precluded is identical to a material issue necessarily decided by the administrative agency in a prior proceeding; and (2) there was a full and fair opportunity to contest th[at] issue in the administrative tribunal".  Keep those two conditions in mind and carefully read any decisions that may assist you in establishing a defense to your case.  Recall that there were two dissents to this decision, and an appeal by right to the Court of Appeals so we have likely not heard the last of this issue.

Quituizaca v Tucchiarone
March 26, 2014
Appellate Division, Second Department

Plaintiff allegedly fell from a ladder while performing work for his employer, third-party defendant N.J. Pappas Construction Co. (N.J. Pappas), at premises owned by defendants/third-party plaintiffs (collectively the defendants) and leased to N.J. Pappas.  Plaintiff commenced this common-law negligence and Labor Law §§ 200, 240(1), and 241(6) action against defendants. 

Defendants moved for summary judgment dismissing the complaint, and plaintiff cross-moved for summary judgment on the issue of liability.  The trial court denied the motion and the cross-motion, and defendants appealed from the denial of their motion.

Labor Law § 240(1) (DRA)

While the reach of Labor Law § 240(1) is not limited to work performed on actual construction sites, the task in which an injured employee was engaged must have been performed during the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure. 

Here, defendants submitted evidence sufficient to establish that plaintiff was not engaged in an enumerated activity protected under Labor Law § 240(1) at the time of his accident. Further, defendants submitted evidence sufficient to establish, prima facie, that plaintiff's accident did not involve construction, demolition, or excavation and, accordingly, Labor Law § 241(6) does not apply.

In opposition to defendants' prima facie showing as to the Labor Law §§ 240(1) and 241(6) claims, plaintiff failed to raise a triable issue of fact.  Accordingly, the Second Department reversed the trial court’s decision, and granted those branches of defendants' motion to dismiss plaintiff's Labor Law §§ 240(1) and 241(6) causes of action.

PRACTICE POINT:  Once again, the plaintiff must establish that the work being done was on a project of the type covered by the labor law.  Here, the plaintiff was not able to establish that.  While there are few facts available to us in this decision, it is apparent that the accident happened at the shop for the plaintiff’s employer, a construction company and that the plaintiff sued the owner of the property who leased it to the plaintiff’s employer.  It seems likely that the plaintiff, while employed as a construction worker, was not on the ladder involved in a construction project at the time of the accident.

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

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.  To the extent that the plaintiff's claims were based on a dangerous condition on the premises, specifically the structural design, construction, and condition of a portion of the floor, the defendants failed to establish their prima facie entitlement to judgment as a matter of law. While an out-of-possession landlord generally will not be responsible for injuries occurring on its premises unless the landlord has a duty imposed by statute or assumed by contract or a course of conduct, in this case the lease submitted by the defendants in support of their motion provided, among other things, that the defendants were required to repair the damaged structural parts of the premises.  Under these circumstances, the defendants failed to establish as a matter of law that they did not have a duty imposed by contract to remedy the specific dangerous or defective condition alleged here.

Thus, to prevail on their motion, the defendants were required to establish that they neither created the alleged dangerous or defective condition nor had actual or constructive notice thereof.  Here, the defendants failed to establish, prima facie, that they did not create the dangerous or defective condition alleged by the plaintiff to have contributed to his fall.

Robinson v Bond St. Levy, LLC
March 26, 2014
Appellate Division, Second Department

Plaintiff was working as a laborer for Virginia Construction & Management, Inc., at a building located on Broadway in Manhattan (the subject property).  While standing near the top of a 10-foot A-frame ladder and removing duct work from the ceiling, a 10-foot long piece of metal duct work struck plaintiff in the back, knocking both him and the ladder to the ground.  Plaintiff, and his wife suing derivatively, commenced this Labor Law § 240(1) action against defendant, Bond Street Levy, LLC, the owner of the subject property.  Plaintiffs moved for summary judgment on the issue of liability, and the trial court granted the motion.  The property owner appealed.

Labor Law § 240(1) (DRA)

To prevail on a Labor Law § 240(1) cause of action, a plaintiff must establish that the statute was violated and that the violation was a proximate cause of his or her injuries.  In a case such as this, involving a fall from a ladder, this showing may be made by demonstrating 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.

Here, the Second Department held the trial court properly granted plaintiffs' motion because plaintiffs established the absence of adequate safety devices to protect the injured plaintiff from falling, and that such violation of Labor Law § 240(1) was a proximate cause of his injuries.  In opposition, the defendant failed to raise a triable issue of fact as to whether the injured plaintiff's actions were the sole proximate cause of the accident.  Contrary to defendant's contention, plaintiffs' motion was not premature because defendant failed to demonstrate how further discovery may reveal or lead to relevant evidence or that facts essential to oppose the motion were exclusively within the knowledge or control of the plaintiffs.  The Second Department stated that the “mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion.” 

PRACTICE POINT:  This is the quintessential double whammy case.  It has both a falling object and a falling worker.  Here, the court decided the case only on the falling worker side of the ledger as once they had reached that opinion there was no need to look further.  When a plaintiff falls from a height, and there was not an adequate safety device available to prevent the fall it is a prima facie labor law case.  Given that, there was no reason for the court to address the falling object aspect of the matter.

Doxey v Freeport Union Free Sch. Dist.
March 26, 2014
Appellate Division, Second Department

Plaintiff was working at the Columbus Avenue School, located within and owned by the Freeport Union School District (the school district), as part of a project to replace a boiler.  While standing in a hatchway, plaintiff noticed that a tube containing a spring that was designed to facilitate the opening and closing of the hatch's doors was only partially attached to one of the hatch's doors.  Plaintiff moved the tube and it sprung up and hit him in the face.

Plaintiff, and his wife suing derivatively, commenced this Labor Law § 241(6) and § 200 action against the school district, the construction manager for the project at the school, and the prime contractor to replace the boiler (collectively the defendants).  The defendants separately moved for summary judgment to dismiss the complaint insofar as asserted against each of them.  The trial court granted those branches of the defendants’ respective motions.

Labor Law § 241(6) (JAE)

In considering the § 241(6) claim, the court held that to recover under Labor Law § 241(6), a plaintiff must establish the violation in connection with construction, demolition or excavation of an Industrial Code provision which sets forth specific, applicable safety standards.”  The Industrial Code provisions upon which the plaintiffs predicated their Labor Law § 241(6) cause of action were inapplicable, as the injured plaintiff did not trip, and the spring mechanism was neither a “sharp projectio[n],” nor a “jack” (12 NYCRR 23-1.7[e]; 23-1.27).

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

Where, as here, the injured plaintiff's accident arose out of an allegedly dangerous condition at the work site, liability for a violation of Labor Law § 200 and common-law negligence will be imposed if the property owner created the condition or had actual or constructive notice of it, and failed to remedy the condition within a reasonable amount of time.  A contractor may be held liable in common-law negligence and under Labor Law § 200 if it had control over the work site and actual or constructive notice of the dangerous condition.

Here, the property owner school district established, prima facie, that it did not create the allegedly dangerous condition in the spring mechanism. Similarly, the defendants satisfied their respective prima facie burdens of establishing their entitlement to judgment as a matter of law on the issue of notice. The defendants demonstrated, as a matter of law, that they were not on actual notice of the allegedly dangerous condition in the spring mechanism. The fact that the defendants received notice that the hatch doors were rusted was insufficient to put them on notice of the allegedly dangerous condition in the spring mechanism.  Further, the defendants demonstrated, as a matter of law, that constructive notice could not be imputed to them because the alleged defect in the spring, being encased within a tube, was latent and, thus, would not have been discoverable upon a reasonable inspection.

Moreover, the construction manager (Triton) established that, it had not been delegated the authority and duties of a general contractor, did not function as an agent of the owner, and was not a contractor responsible for the plaintiff's safety.

In opposition to these prima facie showings, the plaintiffs failed to raise a triable issue of fact.
Glispy v Riverbay Corp.
March 27, 2014
Appellate Division, First Department

Plaintiff was allegedly injured on July 10, 2009 when she tripped over a piece of wood blocking or "mud sill" under a support column of a sidewalk shed (a scaffold erected over a walkway to protect pedestrians). The structure was purchased by the property owner, defendant Riverbay Corporation, and installed under contract by Proto Construction & Development Corp. (Proto) in front of Building 8 of the Co-op City housing complex in February 2002. 

Plaintiff has not filed a brief. In controversy is whether Proto is obligated to indemnify Riverbay for plaintiff's injuries pursuant to another series of contracts entered into by the parties in 2005. At issue is whether the contract documents contemplate a single performance, as Riverbay contends, or a series of performances under separate contracts (designated "bidding packages") governing work to be performed at different sites, each of which is comprised of several buildings. At the time of the accident, work was under way on other buildings, but the work to be performed on Building 8 had not yet commenced. Thus, Proto argues that its contractual obligation to maintain the sidewalk shed had not yet arisen under the terms of the [*2]applicable bidding package.

There is no evidence that Proto inspected or performed any maintenance or repair work on the subject sidewalk shed thereafter. Nor is there any indication that the structure was in any way defective during the ensuing seven years so as to afford a basis for contribution or common-law indemnification predicated on liability arising under Espinal v Melville Snow Contrs. (98 NY2d 136 [2002]) and its progeny (see McCarthy v Turner Constr., Inc., 17 NY3d 369, 375 [2011]; Cahn v Ward Trucking, Inc., 101 AD3d 458 [1st Dept 2012]).

The trial court denied Proto’s motion for summary judgment dismissing plaintiff’s Complaint and cross-claims against it.

Indemnity Issues in Labor Law (SEP)

Simply stated, because Proto was prohibited from tending the sidewalk sheds until after the loss it had owed no duty to anyone for negligence maintenance of them. Where Pronto owed no duty, it followed that they did not owe contractual indemnification for something that they were actively managing.  The court noted that having involvement in other, unrelated, sidewalk sheds did not create a contractual obligation for the apparatus at issue.

Sims v City of Rochester
March 28, 2014
Appellate Division, Fourth Department

Plaintiff was allegedly injured while performing asbestos abatement work during a construction project at Midtown Plaza, which is owned by defendant City of Rochester (City).  According to plaintiff, she was scraping asbestos from the ceiling while standing on a free-standing scaffold when the scaffold shifted and she fell to the ground.  Plaintiff commenced this Labor Law § 240(1) and common-law negligence action against the City, and moved for partial summary judgment on the issue of liability. 

Although plaintiff claimed in her deposition and in an affidavit that she was working on a scaffold when it shifted, thereby causing her to fall to the ground, she also submitted the affidavits of two coworkers who averred that plaintiff was not on the scaffold when the accident occurred.  According to the coworkers, both of whom witnessed the accident, plaintiff was working on the ground level cleaning debris from the floor when the unoccupied scaffold tipped over and fell while one of the coworkers was attempting to move it to another location. The coworker who was moving the scaffold did not see the scaffold fall on plaintiff or otherwise come into contact with her, although plaintiff later told him that the scaffold had hit her arm and hand.  The other coworker averred that he had observed one of plaintiff's coworkers push her out of the way of the falling scaffold, and that plaintiff then fell to the ground.  He did not see the scaffold fall on or otherwise strike plaintiff.

Not surprisingly, the trial court denied plaintiff’s motion, and she appealed. 

Labor Law § 240(1) (DRA)

"To be entitled to a judgment on liability for a violation of section 240 (1) of the Labor Law, [a] plaintiff [is] required to prove, as a matter of law, not only a violation of the section, but also that the violation was a proximate cause of his [or her] injuries” and it is well settled that "an accident alone does not establish a 240(1) violation or causation."

Here, the Fourth Department held that plaintiff failed to meet her initial burden on the motion inasmuch as "inconsistent versions of how the accident occurred raise a question of fact as to the credibility of the plaintiff, and are insufficient to prove, as a matter of law, that the defendant['s alleged] failure to provide the plaintiff with proper protection proximately caused [her] injuries."  According to the Fourth Department, plaintiff's failure to eliminate all questions of fact mandates denial of her motion, regardless of the sufficiency of defendant's opposing papers.

PRACTICE POINT: This case reinforces the need to speak to all witnesses to any accident.  Here, it is the testimony of the plaintiff’s coworkers which brings to light the question of fact as to how the plaintiff was injured, if at all.  Plaintiff’s claim to have been on the scaffold when it fell and the coworkers testimony that she was on the ground and not struck by the scaffold when it fell are so completely at odds with each other that there is no way the court could have ruled any differently.  A jury will need to decide which version to believe. 

 

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

Regulation § 23–8 providing detailed rules to be followed when hoists or cranes are used, does not impose any requirement that hoists or cranes be used under particular circumstances (Toefer v Long Island R.R., supra).  Regulation § 23–8 held inapplicable to stationary hoists (Gonzalez v Glenwood Mason Supply Co., Inc., supra); and does not apply where no hoisting devices were used (Hasty v Solvay Mill Ltd. Partnership, 306 AD2d 892, 760 NYS2d 795 [4th Dept 2003]).
Regulation § 23–8.1(a) regarding stability and strength of mobile cranes, tower cranes and derricks used in construction, merely provides a general safety standard insufficient to support a Labor Law § 241(6) claim regarding the duty to provide reasonable and adequate protection and safety in all areas in which construction was being performed (Goss v State University Const. Fund, 261 AD2d 860, 690 NYS2d 811 [4th Dept 1999]; Thompson v Ludovico, 246 AD2d 642, 668 NYS2d 238 [2d Dept 1998]).
Regulation § 23–8.1(b) mandating that cranes be inspected, was held inapplicable to accident allegedly caused by the improper rigging of the steel plate for hoisting because the accident was not caused by a malfunction of the crane (Puckett v County of Erie, supra).
Regulation § 23–8.1(f) involving “hoisting”, held sufficiently specific to support a Labor Law § 241(6) cause of action (Cammon v City of New York, 21 AD3d 196, 799 NYS2d 455 [1st Dept 2005]).  Regulation § 23–8.1(f) held inapplicable where tree being dragged by bulldozer during tree removal operation was unexpectedly propelled upward, striking plaintiff (Lysiak v Murray Realty Co., 227 AD2d 746, 642 NYS2d 350 [3d Dept 1996]).
Regulation § 23–8.1(f)(1) requiring inspection for specified unsafe conditions before hoisting with mobile crane, tower crane or derrick, was held applicable where injury occurred when beam, which had already been hoisted off the ground, was being propelled forward because when a heavy object being moved from one spot to another this regulation is not limited to only the part of operation in which said object is being lifted vertically (McCoy v Metropolitan Transp. Auth., 38 AD3d 308, 832 NYS2d 26 [1st Dept 2007]).
Regulation § 23–8.1(f)(1)(iv) requiring inspection before starting to hoist with mobile crane to ensure that “load is well secured and properly balanced in the sling or lifting device before it is lifted more than a few inches” sets forth a specific standard of conduct sufficient to support a Labor Law § 241(6) cause of action (Cammon v City of New York, supra).  Regulation § 23–8.1(f)(1)(iv) held violated where worker sustained injury while assisting in the removal of one-ton slab of concrete still partially attached to roadbed surface and only one end of which had been raised by crane roughly four feet above road, when worker, acting on instructions of his supervisor, placed large wooden beam as wedge to extricate slab from roadbed and stood on raised end of beam while crane operator attempted to slowly lower slab back to the ground, and when, due to crane operator's failure to control speed at which slab was lowered, the beam on which he was standing shattered and caused him to fall (Harris v City of New York, 83 AD3d 104, 923 NYS2d 1 [1st Dept 2011]); genuine issues of material fact as to whether violations of provisions prohibiting use of chain as sling in hoisting operation proximately caused accident in which crane operator was injured when 50–foot by 20–foot steel plate he was hoisting fell onto cab of crane (Puckett v County of Erie, supra).
Regulation § 23–8.1(f)(2) describing required conditions to be observed during hoisting operation, held applicable where injury occurred when beam, which had already been hoisted off the ground, was being propelled forward because regulation not limited to part of operation in which object is being lifted vertically (McCoy v Metropolitan Transp. Auth., supra); inapplicable where worker struck by tree branch since there was no evidence that accident caused by crane or that crane came in contact with trees (Roosa v Cornell Real Prop. Servicing, Inc., 38 AD3d 1352, 831 NYS2d 784 [4th Dept 2007]). 
Regulation § 23–8.1(f)(2)(i), and (ii) providing that load “shall not contact any obstruction,” held inapplicable where crane operator moved crane forward causing hoisted girder to swing uncontrollably and strike safety railing on adjacent building because plaintiff grabbed girder in effort to prevent its dangerous swing; “obstruction” means something that hinders passage (Long v Tishman/Harris, 50 AD3d 356, 855 NYS2d 102 [1st Dept 2008]). 
Regulation § 23–8.1(f)(2)(i) held violated where worker sustained injury while assisting in the removal of one-ton slab of concrete still partially attached to roadbed surface and only one end of which had been raised by crane roughly four feet above road, when worker, acting on instructions of his supervisor, placed large wooden beam as wedge to extricate slab from roadbed and stood on raised end of beam while crane operator attempted to slowly lower slab back to the ground, and when, due to crane operator's failure to control speed at which slab was lowered, the beam on which he was standing shattered and caused him to fall (Harris v City of New York, supra).
Regulation § 23–8.1(f)(5)  providing that “[m]obile cranes, tower cranes and derricks shall not hoist, lower, swing or travel while any person is located on the load or hook,” is not limited to situations where a person is on load while load is being moved but also prohibits using crane while person is on load (Catarino v State, 55 AD3d 467, 866 NYS2d 161 [1st Dept 2008]).
Regulation § 23–8.1(f)(6) prohibiting hoisting or carrying load over and above any person, is sufficiently specific to support a Labor Law § 241(6) cause of action, and is applicable where plaintiff injured by bundle of wire mesh rebar being lifted over his head by crane on back of his truck (Locicero v Princeton Restoration, Inc., supra).
Regulation § 23–8.1(f)(7) providing that operator of mobile crane, tower crane or derrick shall not leave position at controls while load is being suspended and further provides that no person shall be permitted to pass under stationary suspended load, held inapplicable where plaintiff-operator did not leave his position at controls of mobile crane (Locicero v Princeton Restoration, Inc., supra)
Regulation § 23–8.1(i) requiring that “[e[xposed moving components or parts of mobile cranes, tower cranes and derricks such as gears, set screws, projection keys, chains, chain sprockets and reciprocating parts which might constitute a hazard under normal operating conditions shall be guarded and such guards shall be securely fastened in place …” cannot reasonably be interpreted to include hook on crane as among the “moving parts” (Penta v Related Cos., 286 AD2d 674, 730 NYS2d 140 [2d Dept 2001]).
Regulation § 23–8.1(m) requiring that mobile cranes, tower cranes and derricks near or around power facilities be operated only in accordance with the provisions of 23-1, merely states a general safety standard insufficient to support a Labor Law § 241(6) cause of action (Murray v Lancaster Motorsports, Inc., supra).

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V. Christopher Potenza

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Labor Law Team

            David R. Adams, Team Leader                                              Steven E. Peiper
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