Labor Law Pointers - Volume III, No. 8

 

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From the Editor:

Do you have a situation, call us, we live for situations. 

Thought I was stealing that opening line from Dan Kohane but I have been contacted by the producers of “Jersey Shore” and it appears that both Dan and I will need to stop using the term as we are making Mike “the Situation” mad.  Seriously we do love a good situation.  Noting makes the day go by faster than talking to one of our readers who has a fact pattern which would make the bar exam hall of fame.  I half of those calls start with “well, I have a situation here” then at least as many end with “I think you really do love this stuff”, well, we do.  So please, when that case rolls in, the one that makes you scratch your head and wonder, always feel free to pick up the phone or send an email and we will always be happy to help you sort through the crazy twists and figure out who has a case and who is going to be passing the risk on to another party up or down the contractual line.

We have some interesting cases this month, including one addressing the homeowner exemption where the home owner provided the ladder and cleaning supplies but was found not to be an appropriate defendant and one looking at the definition of “alteration” as it applies to 240(1) cases.  From that time in 1998 when the court of Appeals decided Joblon” I have had an unhealthy interest in what qualifies as an alteration.  This may in fact be the origin of my obsession with the labor law.  I had a case then where the plaintiff has installing duct work for an air conditioner to cool a room housing a computer server.  He fell from a ladder and was hurt while trying to run the exaust duct through the hole in the wall to get to an outside wall.  I had limited experience with labor law cases but was reading lots of them to gain a general understanding when the Court of Appeals releases Joblon.  It was, if not directly on point, so close that I knew I was dead but it started me down this slippery slope to labor law obsession.

Hope you enjoy this month’s edition.  

 

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.

 

Murati v Harris
May 1, 2014
Appellate Division, First Department

Murati allegedly was injured when he fell from a ladder while performing work at a house owned by defendants Steven and Bernice Harris (defendants).  Defendants attempted to sell the house at a 60% markup only months after purchasing it, continuously attempted to sell it or rent it, discontinued cable and telephone service there in the same year that a tenant occupied it, and removed much of the furnishings from the home.  

Murati filed this Labor Law § 240(1) action against defendants.  Mr. Harris testified that his wife was no longer able to use the home because she could not climb stairs after she underwent knee surgery five months before defendants first listed the home for sale, and that he continued to use the house as a weekend home.  Murati moved for summary judgment and the trial court denied the motion.  Murait appealed.

Labor Law § 240(1) (DRA)

The First Department held that as there is conflicting evidence as to whether defendants intended to use the home for commercial or residential purposes, an issue of fact exists as to whether they are entitled to the homeowner exemption under Labor Law § 240(1).

PRACTICE POINT:  The single family homeowner exception to the labor law is interpreted closely and any commercial use of the structure can eliminate the exception, for instance a spec house being built would not qualify for the exception.

 

Marshall v Glenman Industrial & Commercial Contractor Corp.
May 1, 2014
Appellate Division, Third Department

Marshall, a tile and marble worker at a building undergoing extensive renovations, allegedly fell down the stairs after his boot became caught on a piece of metal protruding from a stair. According to Marshall, the incident happened between the second and third floors while he was descending stairwell B, a stairway regularly used by the various workers and subcontractors engaged in the renovation.  As he attempted to step onto the landing, his boot was pierced and caught by a protruding piece of metal that projected approximately two to three inches from the stairwell post, causing him to tumble down the stairs to the landing of the next floor.  Marshall described the protrusion as a flat piece of black stock steel, approximately one-eighth-inch thick and 1 ½ inches wide.  After Marshall reported the incident, the owner's building superintendent retrieved a saw and cut off the projecting portion of metal, which he described as a “tripping hazard,” and threw it away.

Marshall moved for summary judgment against Glenman on his § 241(6) claim.  Defendants separately cross-moved to dismiss the § 200 / common-law negligence claims, relying on proof indicating that Model Iron was not assigned to perform any work on stairwell B and reportedly did not weld the metal piece that allegedly caused Marshall to trip and fall.  The trial court, among other things, denied Marshall's motion, and granted defendants' cross motions.  In addition, the trial court, sua sponte, granted summary judgment to Glenman dismissing the § 241(6) cause of action.  Accordingly, the trial court dismissed the complaint in its entirety, prompting this appeal by Marshall.

Labor Law § 241(6) (JAE)
For the §241(6) claim, plaintiff relied on 12 NYCRR 23-1.7 (e) (1), which provides with respect to passageways that “[s]harp projections which could cut or puncture any person shall be removed or covered.”
After finding that this provision was sufficiently specific, the court concluded that 23-1.7 (e)(1) fits squarely within the largely unchallenged version of events described by plaintiff.  Of interest, the trial court had dismissed this cause of action relying on the Court of Appeals decision Rizzuto v L.A. Wenger Contr. Co.  The trial court found that since there was a lack of definitive proof as to the precise person or entity responsible for creating the alleged hazard, liability had not been established.  In reversing the decision, the Third Department concluded that the trial court’s holding was too restrictive and prematurely decided issues more appropriately left for a jury’s consideration.
The Third Department explained that in Rizzuto, the court held that a Labor Law § 241 (6) claim invoking an otherwise appropriate regulation was improperly dismissed despite the absence of any notice of the hazard to the general contractor where a jury could “have rationally concluded that someone within the chain of the construction project was negligent in not exercising reasonable care, or acting within a reasonable time, to prevent or remediate the hazard, and that [the] plaintiff’s slipping, falling and subsequent injury proximately resulted from such negligence.”   
Here, a similar situation was presented, inasmuch as plaintiff offered a scenario whereby a jury could find that “someone” working on the renovation project could have affixed the protruding metal piece and/or failed to timely discover and remove the hazard.  As the Court of Appeals made clear, “once it has been alleged that a concrete specification of the [Industrial] Code has been violated, it is for the jury to determine whether the negligence of some party to, or participant in, the construction project caused [the] plaintiff’s injury.”
Labor Law § 200 and Common-Law Negligence (VCP)

The Third Department affirmed the Supreme Court's dismissal of plaintiff's Labor Law § 200 and common-law negligence claims against defendants. With respect to the statutory claim against Model Iron, the statute is directed at owners and general contractors, and the rare case where a subcontractor may be liable under the statute must include a showing that the subcontractor had authority and control over plaintiff's work.  Given the absence of any proof that Model Iron, the metal subcontractor, had any authority or control over Marshall's work as a tile installer, such claim must fail.   Further, Marshall failed to produce any non-speculative proof in opposition to Model Iron's motion that it was not assigned any work on stairwell B and did not weld the metal piece that allegedly caused Marshall to fall.

As for the Labor Law § 200 and common-law negligence claims against defendant Glenman, to the extent that they are premised upon the failure to correct negligent acts by Model Iron, given the absence of any evidence that Glenman had a direct hand, through either control or supervision, in the injury-producing work, plaintiff's negligence and Labor Law § 200 claims must fail. Further, there was no proof that Glenman had actual or constructive notice of the alleged hazardous condition.

DiNovo v Bat Con, Inc.
May 1, 2014
Appellate Division, Third Department

Bat Con was retained by the County of Onondaga to perform emergency repairs on a municipal sewer line in the Town of DeWitt.  Third-party defendant Peterson Geotechnical Construction, LLC (“PGC”) submitted a written proposal to defendant to perform part of these repairs, and thereafter undertook the work.  DiNovo, a PGC employee, allegedly was injured when a drill rig he was operating tipped over into an excavation trench.

DiNovo and his wife, derivatively, filed this action alleging violations of Labor Law §§ 200, 240(1) and 241(6).  Bat Con filed its third-party action against PGC and third-party defendant Capital Well Drilling, Inc. (“CWD”) seeking, among other things, contractual indemnification. Thereafter, PGC and CWD moved for summary judgment dismissing the third-party complaint.  Bat Con opposed the motion as to PGC, but not as to CWD.  The trial court granted the motion as to CWD and denied it as to PGC, finding issues of fact as to whether the parties had agreed to be bound by an indemnification agreement.  PGC appealed.

Indemnity Issues in Labor Law (SEP)

Workers' Comp. Law § 11 precludes third-party indemnification claims against employers unless there is a "grave injury," or the claim is based upon an express written agreement for indemnification or contribution.  Here, the dispute is whether there was such an agreement between the parties, as it is undisputed that DiNovo did not sustain a grave injury.   Bat Con contends that PGC is bound by an indemnity provision in a subcontract that Bat Con prepared; PGC contends that it never signed this subcontract, and neither received it nor agreed to its terms prior to DiNovo's incident.

The Third Department noted that “even an unsigned contract may be enforceable for purposes of Workers' Comp. Law § 11 if 'the objective manifestations of the intent of the parties as gathered by their expressed words and deeds’ demonstrate that they intended to be bound.”  Here, PGC submitted evidence that established Bat Con and PGC had never worked together before this sewer repair project.  After Bat Con contacted PGC about this job, PGC prepared and transmitted a written proposal, dated in April 2008 that briefly defined the work to be performed, the price, and other details of the project.  The proposal included an attachment containing what PGC's president described as "standard" terms and conditions, including an indemnification provision expressly limiting PGC's responsibility to its own negligence.  PGC's president testified that this proposal formalized the terms under which PGC undertook the job, and Bat Con's vice-president testified he received and read the document and that Bat Con accepted the proposal.

PGC further supplied a copy of an unsigned subcontract prepared by Bat Con containing the indemnification provisions upon which it now relies. Although this document bears the same date as PGC's proposal, PGC submitted affidavit testimony by its president asserting that PGC did not receive the subcontract until after the incident, that no PGC representative ever signed it, and that there were no discussions between PGC and Bat Con about making its terms retroactive.  PGC substantiated this claim with a fax transmittal sheet demonstrating that Bat Con sent the subcontract to PGC one month after the incident.

Accordingly, the Third Department held that PGC met its burden to establish on a prima facie basis that it did not enter into the indemnification agreement or agree to its terms before the incident.  Bat Con failed to establish the existence of triable issues of fact as it submitted no admissible evidence controverting PGC's showing that it did not receive the subcontract before DiNovo's incident; and no affidavit from one of its representative although the record includes deposition transcripts from several of its officers and employees, none of whom testified to any knowledge of the subcontract. 

Moreover, the Third Department held that Bat Con’s reliance on certificates of insurance provided by PGC is misplaced, as "[a]n agreement to procure insurance is not an agreement to indemnify or hold harmless" and thus, the documentary evidence failed to support Bat Con's claim that PGC demonstrated knowledge of the subcontract by acting in conformance with it. PGC's president testified that PGC provided such certificates as a matter of standard practice, and the certificates do not conform to specific requirements in the subcontract as to endorsements and additional insureds.  Therefore, PGC is entitled to summary judgment dismissing the third-party complaint against it.

Piotrowski v McGuire Manor, Inc.
May 2, 2014
Appellate Division, Fourth Department

Piotrowski allegedly sustained injuries after he fell from a wobbly ladder while painting the kitchen walls of a nursing home owned by defendant.  He filed this Labor Law §§ 240(1) and 241(6) and common-law negligence action against defendant.  Following discovery, defendant cross-moved for summary judgment dismissing the § 240(1) claim on the ground that Piotrowski’s choice to use a wobbly ladder when other ladders were available was the sole proximate cause of his injuries.  The trial court denied that part of the cross-motion.  The case proceeded to trial, and a jury found in favor of Piotrowski and awarded him damages. 

Defendant appealed the final judgment pursuant to CPLR § 4401, arguing that Piotrowski had not been engaged in a protected activity at the time of his fall, had not been exposed to an elevation-related risk during the work, and that his actions were the sole proximate cause of his injuries.  Piotrowski also appealed on the grounds that the trial court erred in denying his motion seeking partial summary judgment on the issue of liability on his Labor Law § 240(1) claim.

Labor Law § 240(1) (DRA)

In support of Piotrowski’s motion, the Fourth Department held he failed to establish that his decision to use a ladder that he knew was defective instead of another available ladder was not the sole proximate cause of his injuries.  With respect to defendant’s contention, the Fourth Department noted that § 240(1) applies to owners and contractors and their agents "in the . . . painting . . . of a building or structure," and the painting need not be incidental to construction.  Further, § 241(6) applies to "construction, excavation or demolition work" and in determining what is construction work within the meaning of the statute, courts look to the definition of such in the Industrial Code. 

Viewing the evidence in the light most favorable to Piotrowski and affording him the benefit of every favorable inference, the Fourth Department held the evidence adduced at trial provided a rational basis upon which the jury could have determined that a ladder was required for Piotrowski to carry out his assigned task and that his actions were not the sole proximate cause of his injuries.  The Fourth Department rejected defendant’s argument that the verdict was against the weight of the evidence.

In denying defendant’s cross-motion that Piotrowski’s choice of ladder was the sole proximate cause of his injuries, the trial court held that Piotrowski’s choice of ladder could not be the sole proximate cause of his injuries unless he had been told to use another safety device and had ignored that directive.  The Fourth Department noted that was an incorrect statement of the law inasmuch as it is not necessary that a plaintiff be told to use another safety device.  Rather, there will be no liability imposed on a defendant if the defendant establishes that the plaintiff knew he should use another safety device and knew that such was available at the job site, but chose not to use it.

At the time the parties discussed the jury charge, defendant did not request the recalcitrant worker charge under PJI 2:217.2 or an expansion of 2:217 to include a more detailed sole proximate cause defense; however, the parties immediately thereafter discussed the verdict sheet, and defendant objected to the first question, which asked "Did the ladder used by the plaintiff fail to provide proper protection under Labor Law 240 (1)?"  Defendant argued there should "be a question regarding the sole proximate cause and the plaintiff being the sole proximate cause that is not included."  The trial court responded, "sole proximate cause I am not going to charge because if the failure to provide it is a substantial factor, . . . plaintiff's [conduct] could not be the sole proximate cause."

Defendant objected, arguing the jury could find that Piotrowski had "options available to him that were provided and he just chose not to use it, that is sole proximate cause," but the trial court disagreed with defendant "on the law on that."  Again, the Fourth Department held the trial court's view of the sole proximate cause defense was erroneous, noting the Court of Appeals held in Robinson that for there to be liability under § 240(1), "the owner or contractor must breach the statutory duty under § 240(1) to provide a worker with adequate safety devices, and this breach must proximately cause the worker's injuries.  These prerequisites do not exist if adequate safety devices are available at the job site, but the worker either does not use or misuses them" (emphasis added).

The Fourth Department held the trial court's failure to give an expanded charge with respect to the sole proximate cause defense under the facts of this case resulted in a substantial right of defendant being prejudiced, and thus reversal and a new trial is required.  The Fourth Department agreed with defendant that the final sentence of PJI 2:217 did not adequately convey to the jury the sole proximate cause defense raised in this case.  That sentence instructed that "[i]f you conclude that the plaintiff in this action was the only substantial factor in bringing about this injury you will find for the defendant on this issue."  Immediately before that sentence, however, the court instructed the jury that "[i]f you find that the ladder was not so constructed, placed, operated and/or maintained, as to give proper protection to plaintiff in the performance of the work and that the construction, placement, operation and/or maintenance of the ladder was a substantial factor in causing plaintiff's injury you will find for plaintiff on this issue" (emphasis added). 

The charge therefore instructed the members of the jury that they must find for Piotrowski and impose liability on defendant if they concluded that the ladder was defective, without allowing them to consider whether Piotrowski's choice of that ladder could defeat the imposition of liability on defendant.  The Fourth Department held the trial court should have charged PJI 2:217.2, or at least a more expansive charge using PJI 2:217 as a foundation, to convey to the members of the jury that they should find defendant not liable if they found that Piotrowski knew that there were other safety devices available, that he was expected to use them, and that he chose for no good reason not to do so.

Justices Centra, Lindley, and Sconiers, concurred, as did Judge Fahey, with the denial of Piotrowski’s 240(1) claim and the denial of defendant’s trial motion for judgment as a matter of law pursuant to CPLR 4401.  However, the concurring Justices agreed with Judge Fahey’s dissent with respect to the majority’s holding that the trial court erred in failing to give an expanded sole proximate cause charge to the jury.   Judge Fahey’s dissent attacks the majority’s conclusion that defendant preserved a challenge to the jury charge, noting there is a long line of cases establishing that a party must preserve a challenge to the charge by requesting the instruction at issue and specifically objecting to the charge as given.  Judge Fahey also concludes that had the issue been preserved, he would hold the trial court’s charge sufficient.

PRACTICE POINT:  Make no mistake, the number one source of appeals following a trial is the charge.  It is critical to make and all objections to the charge on the record.  The jury charge on the Sole Proximate Cause defense can be complex and both the plaintiff and the defendant have specific language they will want in the charge and the argument over that charge is often the difference in how the verdict is determined by the jury.

The original issue determined here is important as well, that the sole proximate cause defense requires three elements and all are necessary for a successful defense.  The elements are that there must be a 1) available and 2) appropriate safety device which the plaintiff 3) was told or is aware that he is expected to use.  Here the court clarifies that it is not necessary that the plaintiff be specifically instructed to use the device but that rather it is sufficient that the plaintiff know that he is expected to use the available and appropriate safety device.

Hyatt v Young
May 2, 2014
Appellate Division, Fourth Department

Hyatt was unloading roofing supplies using a conveyor on a flatbed truck, attempting to raise a four-foot by eight-foot plywood sheet onto the roof when the plywood became unbalanced on the conveyor.  As Hyatt attempted to steady it, he fell from the bed of the flatbed truck to the ground five feet below.  He filed this Labor Law and common-law negligence action against defendant roofing contractor at the job site, and moved for partial summary judgment on the issue of liability. 

The roofing contractor cross-moved to dismiss the complaint, arguing that he did not direct or control the method of unloading the roofing materials and Hyatt was not engaged in a protected activity under Labor Law § 240(1).  The trial court denied Hyatt’s motion, and granted defendant's cross-motion for summary judgmentHyatt appealed.

Labor Law § 240(1) (DRA)

The Fourth Department noted at the outset that although flatbed trucks “do not present the kind of elevation-related risk that the statute contemplates”, Hyatt’s incident was caused by a falling object that “flowed directly from the application of the force of gravity to the object.”  Stated differently, Hyatt’s injuries were the result of “the direct consequence of a failure to provide statutorily required protection against a risk plainly arising from a workplace elevation differential.”  Here, the Fourth Department held Hyatt established the plywood fell while being hoisted because of the absence or inadequacy of a safety device of the kind enumerated in the statute. 

The Fourth Department rejected the roofing contractor’s argument because he purchased supplies from Hyatt’s employer.  “It is well settled that a contractor’s duties under § 240(1) are nondelegable, and a contractor may be held liable regardless of whether he actually exercised supervision or control over the work.”  Moreover, the Fourth Department held that Hyatt’s work of unloading roofing material was a protected activity under the statute.  Accordingly, Hyatt was entitled to summary judgment regarding his § 240(1) claim.

PRACTICE POINT:  There are many cases addressing the fact that a fall from the bed of a truck is not the type of risk that the labor law is designed to protect against.  The fourth, in this case, found this to be not a falling worker case but rather a falling object case and found for the plaintiff.  Always look at every case with an eye to using, or opposing, either or both classes of 240(1) case whether you represent the plaintiff or the defendant.  In addition it is critical to remember that if you are a valid labor law defendant that your duty to provide a safe work site is never delegable.  That does not mean that your liability cannot be transferred to another party, but that liability does not ever go away.

 

Card v Cornell Univ.
May 8, 2014
Appellate Division, Third Department

Defendant McCarthy Building Companies, Inc. (“McCarthy”) the construction manager in the construction of a new building on the campus of defendant Cornell University hired LeChase as a subcontractor to perform masonry and concrete work.  Shortly after LeChase employees built an eight-inch-thick concrete half wall, McCarthy advised LeChase that the wall did not comply with specifications requiring it to be 14 inches thick.  Plaintiff Plumley, a field supervisor for LeChase, assembled a team of employees, including Card, to demolish the wall so that it could be rebuilt.  Plumley planned to remove the wall by first separating it from horizontal and vertical rebar that secured it to an adjacent wall and the underlying concrete floor, and then lifting it out of place with a steel choker attached to a forklift.

In preparation, LeChase employees made a hole in the wall for the choker, chipped concrete away from the wall's base, and severed the horizontal rebar.  Before severing the vertical rebar, and also before putting the steel choker in place, pressure was applied to the wall with the forklift.  The vertical rebar unexpectedly popped loose and the wall fell, landing in part on the feet of Plumley and Card.  Inspection later revealed that the vertical rebar, which should have been set at a depth of 10 inches in the underlying floor, had in fact been set at a depth of only about four inches.

Card, Plumley and Plumley's wife, derivatively (“plaintiffs”), filed these actions alleging common-law negligence and violations of Labor Law §§ 200 and 241(6) against McCarthy and Cornell. Defendants moved for summary judgment dismissing the complaints.  The trial court partially granted the motions by dismissing plaintiffs’ § 241(6) claims to the extent they were based on §§ 23-1.5(a) and 23-3.4(c)(3), and by dismissing plaintiffs’ common-law negligence and § 200 claims against Cornell.  The motions were otherwise denied.  Defendants appealed.

Labor Law § 241(6) (JAE)

The court rejected defendants’ contention that plaintiffs’ remaining Labor Law § 241 (6) claims should have been dismissed. 12 NYCRR 23-3.3 (b) (3) and (c) require that walls are not to be left unguarded during hand demolition in such a condition that they may fall, and that continuing inspections must take place during such operations to detect hazards. Plaintiffs additionally relied upon 12 NYCRR 23-3.4 (b), providing that walls and other building parts must not be left unguarded during mechanical demolition such that they might fall.

The court accepted defendants’ contention that these regulations are inapplicable to hazards that result directly from the performance of demolition work. Instead, the purpose of these regulations is to address structural instability resulting from the progress of demolition.  However, in this case, the evidence revealed that LeChase’s employees did not intend to push the wall over when they applied “gentle” pressure with the forklift, but were instead attempting to stabilize the wall while the underlying vertical rebar was severed, so that the wall could be lifted out of place.   Plaintiffs’ claim that the wall fell because of structural instability resulting from the removal of the horizontal rebar and part of the wall’s concrete base, as well as the unexpected shallowness of the remaining rebar. Accordingly, the trial court correctly determined that these regulations applied, and that issues of fact exist as to whether violation of these provisions proximately caused the injuries.

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

The Third Department held the trial court properly refused to dismiss the common-law negligence and Labor Law § 200 claims against McCarthy as the parties disagree as to whether the accident was caused by LeChase's allegedly unsafe demolition methods or by a dangerous condition resulting from the shallow vertical rebar directed by McCarthy, and also disagree as to the extent of McCarthy's supervisory authority and knowledge.

Plumley acknowledged that he supervised and controlled the work of LeChase employees at the job site, specifically including the construction and subsequent demolition of the half wall.  He further made the decision and devised the plan to demolish the wall, and assembled and directed the team of employees who undertook the work. However, there was also evidence that McCarthy employees directed LeChase to undertake corrective work, that McCarthy knew that such work was underway, and that a McCarthy project manager was present during the demolition operation. Further, there was evidence revealing that McCarthy employees regularly instructed LeChase employees as to how to perform their work on the project, and had previously directed them to undertake specific tasks, stop work, or change their work practices. Plumley testified that McCarthy employees had, on occasion, contradicted his orders to LeChase employees. A LeChase project manager testified that McCarthy employees directed LeChase's work on the project, and a LeChase employee stated that “[o]n that site, if McCarthy told you to do something, you did it or you're off the job.”

With reference to the half wall, a LeChase employee testified that as he and another LeChase worker began to construct it according to LeChase's directions, a McCarthy construction site superintendent stopped their work and directed them not to drill holes for the vertical rebar 12 to 14 inches deep, as they had intended to do, but instead to limit the depth to 4 1/2 inches because of concern that the drill might penetrate the ceiling of an occupied room below. This employee further testified that he complied with this direction and did not advise LeChase supervisors. The McCarthy superintendent in question denied that he had given this direction, but acknowledged that he had instructed LeChase employees to limit the depth at which rebar was set in other locations on the Cornell project. Plumley testified that he did not know that the rebar had not been set at the specified depth and that, if he had known, he would have used a different demolition method, since the shallow depth of the vertical rebar compromised the wall's structural integrity and made it susceptible to tipping over under pressure from the side. Finally, plaintiffs' expert engineer opined that the wall would not have fallen over if the rebar had been installed at the specified depth.  

This evidence poses triable issues of fact as to whether Card's and Plumley's injuries resulted from a dangerous condition or from the manner in which the demolition work was performed, as well as the extent of McCarthy's authority to control the work that resulted in the accident, and whether McCarthy created or had notice of a dangerous condition.

Alameda-Cabrera v Noble Elec. Contr. Co., Inc.
May 8, 2014
Appellate Division, First Department

Plaintiff Alameda-Cabrera (plaintiff), an employee of FLJ Dev. Inc. (FLG), was injured while using a miter saw.  FLJ was hired by Bellerose, the general contractor, to install flooring at property owned by CJ Partners (CJ).  FLJ provided plaintiff with the saw which did not have a retractable guard or a vise clamp.  At the time of his incident, plaintiff was halfway through a cut on a piece of wood, using the miter saw, when an electrical outage cut power to the saw.  When the power returned in a matter of seconds, plaintiff’s left hand moved a little to the right, and/or the wood he was holding with that hand to steady it “flew” to the right and drew his hand under the miter saw, and the mitter saw came down and severed his left thumb.

Defendants CJ, Bellerose, Viceory, Parker, and Jackson moved for summary judgment dismissing plaintiff’s common-law negligence and Labor Law §§ 200, 240(1) and 241(6) claims arguing plaintiff’s actions were the sole proximate cause of his injuries.  Plaintiff cross-moved for partial summary judgment on his Labor Law § 241(6) claim against CJ and Bellerose.  The trial court denied defendants’ motions, and granted plaintiff’s cross-motion.  Defendants appealed.

Labor Law § 241(6) (JAE)
In affirming the motion court, the First Department held that plaintiff demonstrated his entitlement to judgment as a matter of law on his section 241(6) claim.  He established that the miter saw provided, which was the only one available for plaintiff’s use, lacked both a protective guard and a vise clamp, in violation of Industrial Code (12 NYCRR) §§ 23-1.12(c)(2) and 23-9.2(a).  In opposition, defendants’ expert failed to address the Industrial Code violations.  Counsels’ arguments concerning those provisions were insufficient to raise an issue of fact, and no comparative negligence was found. 
Thorton v Riverbay Corp.
May 13, 2014
Appellate Division, First Department

Thorton's testimony and affidavit showed that his incident occurred when his jacket pocket caught on a doorknob, which allegedly caused him to “jerk back” and lose his balance and dislodged the roll of tar paper that had been holding the door open, allowing the door to close on his finger. Although Thorton also testified that he tripped on the roll, this took place only after the roll had fallen from its original position propped against the door.

Defendant Riverbay Corp. (Riverbay) moved for summary judgment dismissing Thorton’s § Labor Law § 241(6) cause of action predicated upon (12 NYCRR) § 23-1.7(e)(1), and the trial court granted the motion.  Thorton appealed.

Labor Law § 241(6) (JAE)

No triable issue of fact was found as to whether the proximate cause of plaintiff’s injury was a tripping hazard within a passageway (see 12 NYCRR 23-1.7[e][1]). Plaintiff’s testimony and affidavit showed that his accident occurred when his jacket pocket caught on a doorknob, which caused him to “jerk back” and lose his balance and dislodge the roll of tar paper that had been holding the door open, allowing the door to close on his finger.  Although plaintiff also testified that he tripped on the roll, this took place only after the roll had fallen from its original position propped against the door. There is no evidence that the roll was an obstruction or tripping hazard in its original position, and thus, plaintiff's injury was not caused by any violation of 12 NYCRR 23-1.7(e)(1).

Marcano v Hailey Dev. Group, LLC
May 13, 2014
Appellate Division, First Department

Marcano, a plumber allegedly hired by defendant LaSala, was cutting a pipe with the chop saw when he was injured at LaSala’s home.  Marcano filed this Labor Law §§ 241(6), 200 and common-law negligence action against LaSala, who moved to dismiss the complaint.  The trial court granted LaSala’s motion. 

Labor Law § 241(6) (JAE)

LaSala established that he was entitled to the exemption for “owners of one and two-family dwellings who contract for but do not direct or control the work” because LaSala never instructed Marcano on how to cut the pipe nor did he provide the pipe or the chop saw that Marcano was using at the time of his incident.  Although LaSala determined the location of shower bodies and fixtures and the location of sinks and toilets, the First Department held such “participation was limited to discussion of the results the homeowner wished to see, not the method or manner in which the work was then to be performed.”  Even assuming LaSala hired Marcano, and regularly visited the site, such evidence is insufficient to establish direction or control over Marcano’s work.

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

The First Department held the Labor Law § 200 and negligence claims were properly dismissed as against LaSala.  Regardless of the claimed dangerous condition of the worksite, which involved scattered debris, uneven flooring and poor lighting, Marcano failed to show that LaSala had either actual or constructive notice of such conditions.

Pantovic v YL Realty, Inc.
May 15, 2014
Appellate Division, First Department

Pantovic, a superintendent, was allegedly injured he fell off a ladder while feeding a portable AC exhaust tube into a preexisting duct hole.  Defendant Sprint Communications Co. L.P. (Sprint), a lessee of space at the building where Pantovic was employed, moved for summary judgment on Pantovic’s Labor Law §§ 240(1) and 200 claims.  The trial court not only granted Sprint’s motion, but sua sponte dismissed the common-law negligence claims and claims pursuant to OSHA against Sprint and dismissed Pantovic’s complaint against defendant YL Realty.

Labor Law § 240(1) (DRA)
The First Department held the § 240(1) claim was properly dismissed because Pantovic’s work does not qualify as an “alteration” under the statute.  Also, liability against Sprint cannot be predicated on § 240(1) since Sprint did not contract for the work or have any right to control it. 

PRACTICE POINT:  The key here, it appears to me, is that the hole the plaintiff was putting the tube through was already there and thus he did not, in the words of the Court of Appeal in Joblon, make a significant change to a building or structure.  I love alteration cases.  They have some room for inventive thought and good argument.  In Joblon the Court of Appeals found an alteration where the plaintiff drilled a hole and ran a wire through it.  Here, without drilling a hole, there was no alteration. 

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

Pantovic’s claims pursuant to Labor Law § 200 and common-law negligence were properly dismissed since the alleged defect, excessive heat from Sprint's equipment, merely furnished the need for a personal air conditioning unit, it did not cause Pantovic's accident.  Pantovic's OSHA claims were also properly dismissed since OSHA provides no private right of action.

Campos v 68 E. 86th St, Owners Corp.
May 22, 2014
Appellate Division, First Department

Campos, an employee of second third-party defendant Primacy Contracting Inc. (Primacy), was allegedly injured when he fell off an A-frame ladder while sanding the ceiling of a closet in a cooperative apartment.  Defendant/third-party plaintiff is the cooperative corporation.  Third-party defendant, Jeffrey Rosen (Rosen), a shareholder of the corporation and the proprietary lessee, hired Primacy to paint the apartment.  Primacy provided the ladder and directed Campos’ work.

Campos filed this Labor Law §§ 240(1) and 241(6) action against defendant.  Defendant moved to dismiss the complaint, and Campos cross-moved on the issue of defendant’s liability on his Labor Law § 240(1).  Third-party defendant also moved to dismiss the third-party complaint.  The trial court denied defendant’s motion, granted Campos’ cross-motion, and granted third-party plaintiff’s motion.

Labor Law § 240(1) (DRA)
To establish liability under Labor Law § 240(1), a plaintiff must prove a violation of the statute that was the proximate cause of his injury.   A fall from a ladder does not in and of itself establish that the ladder did not provide appropriate protection.  Here, Campos testified that he "fell backwards and the ladder forward," and submitted an affidavit stating the ladder suddenly went forward and he simultaneously fell backwards, and that he did not become dizzy or lose his balance.  

However, he also testified that he opened the ladder, locked it and checked that it was sturdy, that he was not experiencing any problems with the ladder while he was on it, that he did not remember how he fell off the ladder or know why he fell off, and that he did not feel the ladder move before he fell.  When asked if he remembered or knew if the ladder shook or wobbled, he responded, "No."  Further, his employer testified that he situated the ladder immediately before the fall, locked the braces and climbed it himself, and that when he went back into the room after Campos fell, the ladder was in the same place as before the incident and was not on the ground, and that plaintiff did not say that there was anything wrong with the ladder that caused him to fall.

The First Department held these contradictions raise credibility issues which cannot be resolved on a motion for summary judgment and thus, triable issues of fact as to how Campos fell exist and it cannot be concluded that, as a matter of law, the alleged failure to provide him with proper protection proximately caused his injuries.

PRACTICE POINT:  The contradiction in the plaintiff’s testimony has prevented the plaintiff from receiving Summary Judgment as he testified in his deposition that the ladder did not move prior to his falling and then, in support of his Summary Judgment motion submitted an affidavit stating that the ladder moved causing the fall.  If the ladder shifts and the plaintiff falls due to the shifting of the ladder it is a labor law case.  If the plaintiff simply falls off a good ladder for no reason other than losing his balance it is not a labor law case.  Here, the plaintiff provided sworn testimony that the ladder did not shift and then contradicted himself in an affidavit for the Summary Judgment motion.  To my mind this is not a true question of fact and the attempt to change his testimony in the one critical area should not be sufficient to create a question of fact.  We have seen exactly this type of attempt to change testimony to support a Summary Judgment motion in the past and generally the outcome is different.

Labor Law § 241(6) (JAE)

Plaintiff's claim under Labor Law § 241(6), based on violations of Industrial Code (12 NYCRR) § 23-1.21(b)(1), 23-1.21(b)(3) (iv), and 23-1.21(b)(4)(ii), should have been dismissed.  There was no evidence that the ladder was unable to sustain plaintiff’s weight, or was not in good condition, or that the floor underneath it was slippery.

Guallpa v Leon D. DeMatteis Constr. Corp.
May 27, 2014
Appellate Division, First Department

Guallpa, an employee of nonparty New Town Corporation (New Town), allegedly suffered an injury to his right knee while working at a construction site. Defendant Leon D. DeMatteis Construction Corporation (DeMatteis) was hired by defendant New York City School Construction Authority, a division of defendant New York City Department of Education, to act as the general contractor on the project.  DeMatteis hired New Town to complete the masonry work on the project.

During construction, New Town received concrete stones on wooden pallets.  Each pallet measured about three- to four-feet high.  Because the construction site was open to the elements, the pallets were covered with a plastic tarp to keep the stones dry.  On the day of the incident, Guallpa was constructing a scaffold near an open area where several of these pallets were located.  As he walked by one of the pallets, a stone block that was resting on top of it allegedly fell and struck him on the right knee.  The block weighed approximately 25 pounds.  The record contains no evidence as to how the block could have come off the pallet.

Guallpa filed this action alleging common-law negligence and violations of Labor Law §§ 200, 240(1), 241(6).  He then moved for partial summary judgment on his §§ 240(1) and 241(6) claims, and defendants cross-moved to dismiss the entire complaint.  The trial court denied Guallpa’s motion, and granted defendants' cross-motion to the extent of dismissing the §§ 240(1) and 241(6) claims.  The trial court declined to address defendants' cross motion on the § 200 and common-law negligence claims, finding that this aspect of the cross motion was untimely.

Labor Law § 240(1) (DRA)

The statute does not apply automatically every time a worker is injured by a falling object; rather, the "decisive question is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential."  The injured worker must establish that the object fell because of the inadequacy or absence of a safety device of the kind contemplated by the statute.  For something to be deemed a safety device under the statute, it must have been put in place "as to give proper protection" for the worker.

Guallpa argued that § 240(1) is applicable because his injuries were caused by defendants' failure to provide an adequate safety device to hold the plastic tarp in place.  Specifically, he maintains that the plastic tarp was inadequately secured because, if it had been properly secured, such as with ropes and stakes, his injury would not have occurred.  The First Department rejected that argument because Guallpa did not contend that the block itself was inadequately secured and the plastic tarp was not an object that needed to be secured for the purposes of § 240(1), nor was there any indication that the tarp caused Guallpa’s injuries.  The tarp was in place to keep the stone blocks dry, not to secure the stones stacked on the pallet underneath it, and the purpose of the tarp was to keep possible rain off the object, not to protect workers from an elevation-related risk.   

PRACTICE POINT:  When addressing a falling object case the first place to check is if the object fell due to the failure to secure the object.  Here the falling on the object was not caused by the failure to secure any object which should have been secured but rather the block was just to hold down the tarp and thus not a 240 case.  Always analyze these cases from the perspective of whether the object that fell would normally have been secured specifically to prevent it from falling and injuring someone.  If the answer is yes, it is clearly a labor law case.  If the answer is no, it is not a labor law case.  It is the cases where the answer is not so clear that we get to have fun. 

Labor Law § 241(6) (JAE)

The motion court properly dismissed plaintiff's § 241(6) claim predicated on a violation of Industrial Code § 23-2.1(a)(1).  As plaintiff’s injury occurred in an open work area, not in a passageway or a walkway, § 23-2.1(a)(1) is not applicable.

DeRose v Bloomingdale’s Inc.
May 27, 2014
Appellate Division, First Department

DeRose was a carpenter injured while working on a renovation project in defendant's Manhattan store, who hired third-party defendant RP Brennan General Contractors (RP) to conduct renovation and demolition work.  On the day of the incident, Gerry Cole, plaintiff's supervisor and employee of RP, instructed him to assist with demolition work in a different section of the store from where he had been working.  Cole told DeRose to dismantle a temporary wall that had been erected to block the demolition work from the view of defendant's customers.

DeRose began walking toward the back of the store to fetch a Baker scaffold, which he determined was the proper device to stand upon while dismantling the wall.  However, Cole reprimanded DeRose and directed him to use a ladder instead.  Specifically, Cole told DeRose that he could not "roll the f**** (expletive) scaffold through the store with customers" and commanded him to "[g];o work off the f**** (expletive) ladders" that were already in the section being demolished.  Because he did not want to disobey his supervisor's orders or defendant's policy prohibiting workers from moving equipment around the store while customers were present, DeRose did not obtain the Baker scaffold.

When DeRose arrived in the demolition section of the store, he saw three ladders, two of which were fiberglass A-frame ladders that were already in use by other workers.  The only other ladder available was a "rickety," old, wooden A-frame ladder.  Nevertheless, because DeRose had been instructed to complete the demolition work "ASAP," he used the wooden ladder.  After working with it for approximately one hour, DeRose "began dismantling the top support beam of the wall."  He attempted to place the ladder securely on the concrete floor, despite the fact that the floor was uneven because it had recently been jackhammered.  While DeRose stood on the ladder, with his feet approximately four feet from the ground, he swung his hammer. Unfortunately, after the hammer struck, the ladder "first shifted and wobbled, and then kicked out," causing DeRose to fall to the ground.

DeRose filed this Labor Law §§ 200, 240(1) and 241(6) action.  During discovery, defendant’s counsel advised DeRose’s counsel that the authorizations for his Social Security Administration and Worker's Compensation Board files were not in proper form, and requested amended authorizations, which were provided.  DeRose’s counsel thereafter called defendant's counsel to confirm that plaintiff's deposition would take place the following day in accordance with the preliminary conference order.  DeRose’s counsel argued that defendant refused, but defendant claims that it could not proceed with plaintiff's deposition because it was still awaiting documents pursuant to the authorizations.  Defendant further alleges DeRose’s counsel verbally consented to adjourn the deposition; however, he denies consenting to the adjournment.  The parties did not reduce the alleged agreement to writing, and neither party moved to amend the preliminary conference order or adjourn the deposition. 

In any event, DeRose filed his summary judgment motion on his §§ 240(1) and 241(6) claims, arguing in his supporting affidavit that if he had been provided the Baker scaffold, he would not have fallen and the scaffold would have been proper because it would not have shifted as he hammered and, because of its dimensions, it would have been able to better cope with the fact that the concrete floor was uneven.  Defendant responded the motion was premature, and DeRose’s deposition occurred shortly thereafter.  The parties then submitted supplemental motion papers.  Defendant argued DeRose’s testimony raised triable issues as to whether he was the sole proximate cause of his injuries and as to the identification of the specific ladder DeRose used because he testified that the ladder he used had been destroyed by a coworker, Gary Moon, whereas photos taken shortly after the incident showed a wooden ladder that did not precisely match DeRose’s description of the ladder from which he fell.  The trial court denied DeRose’s motion without prejudice as premature. 

Labor Law § 240(1) (DRA)

Defendant did not dispute DeRose’s assertions that a Baker scaffold would have been the adequate safety device for his work and he was not provided with one.  When DeRose attempted to fetch the Baker scaffold from the back of defendant's store, his supervisor stopped him and commanded him to use the ladders in the section of the store that was being demolished.  Defendant focused on issues concerning which ladder DeRose used and the care with which he used the ladder, but the First Department held that argument obfuscates the real issue in this case: DeRose was not provided with the single device that would have enabled him to perform the work safely. 

According to the First Department, the relevant consideration is defendant's failure to provide DeRose with the Baker scaffold, rather than which of the three inadequate A-frame ladders DeRose ultimately used.  As DeRose was not provided with an adequate safety device, defendant cannot avail itself of the sole proximate cause defense.  Further, the First Department noted there is no practical difference between the facts of this case – where a supervisor directs an employee to not use an otherwise available safety device – and a situation where a scaffold simply was not present at the worksite. 

The Labor Law does not require a worker to demand an adequate safety device by challenging his or her supervisor's instructions and withstanding hostile behavior.  When faced with an employer's instruction to use an inadequate device, many workers would be understandably reticent to object for fear of jeopardizing their employment and their livelihoods. The statute, per the court, speaks for those workers and, through the statute, the legislature has made clear that the provision of adequate safety devices at worksites is imperative and that worker safety depends on absolute liability for contractors and owners who fail to furnish such devices.  Therefore, the First Department modified the trial court’s decision, granting DeRose’s motion.

PRACTICE POINT:  Where plaintiff’s boss tells him not to use an available and better, more secure, safety device and to hurry and get the job done it should not be a surprise that when the plaintiff falls he will be awarded Summary Judgment.

DiMaggio v Cataletto
May 28, 2014
Appellate Division, Second Department

DiMaggio allegedly was injured after falling from a ladder which slipped while he was power washing the roof of a single-family residence owned by defendant.  DiMAggio and his wife, suing derivatively, filed this action alleging common-law negligence and violations of Labor Law §§ 200 and 240(1).  Defendant moved for summary judgment to dismiss the complaint, asserting the homeowners’ exemption.  The trial court granted defendant’s motion. 

Labor Law § 240(1) (DRA)

To recover under the statute, the plaintiff must have been engaged in a covered activity – "the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure."  However, the "homeowner's exemption" to liability under Labor Law § 240(1) "is available to owners of one and two-family dwellings who contract for but do not direct or control the work.'" 

Here, it was undisputed that defendant's home where the incident occurred is a single-family private residence.  Defendant also submitted the parties' deposition testimony and her affidavit establishing, prima facie, that she did not direct or control the method or manner of the work. The Second Department held defendant's "involvement was merely retention of the limited power of general supervision, and was no more extensive than would be expected of the typical homeowner who hired a contractor to renovate his or her home." 

Moreover, the defendant did not lose the protection of the statutory exemption by furnishing the ladder, bleach, and hose.  In opposition, the Second Department held DiMaggio failed to raise a triable issue of fact.  Accordingly, the trial court’s dismissal of the § 240(1) claim was affirmed.

PRACTICE POINT:  This case highlights the necessary elements of supervision or control over the plaintiff which is necessary to avoid the protection of the single family home exception to the labor law.  Here the defendant provided the ladder, cleaning solution and the hose, but did not instruct the plaintiff in the means and method of doing the job.  Remember that when you hire someone to work on your house.

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

The Second Department held that the trial court properly granted that branch of the defendant's motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims.  The defendant established, prima facie, both that she did not create or have actual or constructive notice of the alleged condition which caused the injured DiMaggio's injury, and that she did not have the authority to supervise or control the means and methods of the injured DiMaggio’s work.   In opposition, DiMaggio failed to raise a triable issue of fact.

 

Fuger v Amsterdam House for Continuing Care Retirement Community, Inc.
May 29, 2014
Appellate Division, First Department

Fuger’s incident was allegedly caused by a wet and/or muddy condition on the ground, resulting in him falling while erecting a steel structure.  Fuger moved for summary judgment on his Labor Law §§ 240(1), 200 and common-law negligence claims against defendant Pike Construction Co. (Pike).  Pike moved for summary judgment on its contractual claim against third-party defendant Car-Win.  The trial court granted Fuger’s motion, and granted Pike’s motion.

Labor Law § 240(1) (DRA)

Fuger established defendants’ liability by presenting evidence that he was injured in a fall from an elevation of approximately 12 to 14 feet that was proximately caused by defendants’ failure to equip him with safety devices providing adequate protection.  The First Department held defendants failed raise an issue of fact whether Fuger’s failure to use a safety harness was the sole proximate cause of his injuries as the record establishes Fuger was not expected to use any fall protection devices when working less than 30 feet above the ground. 

PRACTICE POINT:  Where the proof is that the defendant did not provide the plaintiff with fall protection, and did not require him to wear any below 30 feet, then there should be no surprise when the plaintiff is awarded Summary Judgment.

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

The First Department held that the Labor Law § 200 and common-law negligence claims predicated on allegations that Fuger's fall was caused by the wet or muddy condition of the ground, with the mud tracked up to the beam from which he fell, should not be dismissed as against Pike.   Pike's superintendent was walking around the area taking photographs of the ground for about half an hour before the accident and shortly after the accident, and he testified that the photos showed a muddy condition.

However, the accident otherwise resulted from the method, means, or materials of Fuger's work on the steel structure from which he fell, and Pike's general oversight and authority to stop unsafe work on the site does not establish the supervisory control over the performance of Fuger’s work required for Pike to be held liable for Fuger's injuries relating to those conditions.

Indemnity Issues in Labor Law (SEP)

General Obligations Law § 5-322.1 prohibits a party to a construction contract from being indemnified for losses attributable to their own negligence.  That is why it is vital to remove, when possible, all allegations of common law negligence/Labor Law § 200 against any party seeking indemnity.  Here, that didn’t occur, and dispositive relief was not provided as a result.

Rainer v Gray-Line Dev. Co., LLC
May 29, 2014
Appellate Division, First Department

Rainer was working on reinforcing the ceiling of a building under construction, when the ladder he was standing on allegedly fell due to the uneven condition of the concrete floor on which it was placed.  Two Gotham employees and a Thatch employee were responsible for coordinating the work of the trades, including third-party defendant Sorbara's work pouring concrete and plaintiff's employer's work reinforcing the ceiling.  Gotham was the construction manager.

The trial court denied the motions of defendants Gotham and Thatch seeking dismissal of Rainer’s Labor Law § 200 and common-law negligence claims, finding issues of fact as to whether they “exercised general control over the work site and had constructive notice of the alleged uneven floor condition” that caused Rainer’s fall.  The trial court also denied the motion of defendants Gray-Line, Gotham and Thatch on their contractual indemnification claims against third-party defendant Sobara, finding a conflict between two indemnification provisions that the trial court held created an ambiguity raising triable issues of fact.

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

The First Department held the trial court properly declined to dismiss the Labor Law § 200 and common-law negligence claims against Gotham and Thatch since there are issues of fact as to whether they exercised general control over the work site and had constructive notice of the alleged uneven floor condition that caused Rainer’s fall.  Although Thatch ceased to be the legal owner of the property approximately two months before the incident, and Gotham's contract designated it as the construction manager rather than the general contractor, Gotham's job superintendent and site safety supervisor testified that he broadly supervised and controlled the work site.

Additionally, two Gotham employees and a Thatch employee were responsible for coordinating the work of the trades, including Sorbara's work pouring concrete and plaintiff's employer's work reinforcing the ceiling, arguably providing these two defendants with the opportunity to stop the ceiling work from proceeding until the defects in the floor were remedied. Moreover, the evidence indicates that Gotham's safety supervisory and the Thatch employees were on site every day, and that the former conducted multiple daily walk-throughs.

Indemnity Issues in Labor Law (SEP)

On appeal, the Appellate Division rejected Sorbara’s arguments that Thatch/Gotham’s claims for contractual indemnification were improper.  Apparently, the Sorbara contract contained two indemnity provisions; one which applied only to Sorbara’s employees, and one which applied to losses generally arising from, or connected with, Sorbara’s work. 

The court rejected any ambiguity by noting that the first indemnity provision had no application to the current claim which involved an injured party employed by a contractor other than Sorbara.  Accordingly, by plain reading of the second indemnity provision, it was apparent that both Thatch and Gotham were entitled to summary judgment because plaintiff claimed the incident was caused, in part, due to an uneven floor surface created by Sorbara.     

Notwithstanding the foregoing, given the question of fact surrounding Thatch and Gotham’s potential negligence it followed that any indemnity award was only conditional.  Thus, to the extent a jury apportions any negligence to Thatch and/or Gotham, said party would not be able to pass along any such exposure to Sorbara. 

Finally, because the indemnity clause referenced attorneys’ fees, they too would be recoverable.

 

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

Regulation § 23–9.1 dealing with “power-operated heavy equipment or machinery used in construction, demolition and excavation operations that] shall not apply to material or personnel hoists nor to cranes and derricks,” does not set forth any standard at all, general or specific, and thus cannot provide a basis for liability under Labor Law § 241(6) (Fisher v WNY Bus Parts, Inc., supra).
Regulation § 23–9.2 encompassing the general requirements for power-operated equipment, has been found by the Third Department to merely set forth general safety standards and not the concrete specification required to support a Labor Law § 241(6) cause of action (Fairchild v Servidone Constr. Corp., 288 AD2d 665, 733 NYS2d 735 [3d Dept 2001]). 
Portions of regulation § 23–9.2(a)(1) requiring that power-operated equipment be maintained in good repair and is inspected with sufficient frequency to ensure good repair, are insufficient to support a Labor Law § 241(6) claim; but portion requiring correction of structural defects or unsafe conditions in power-operated equipment upon discovery is sufficiently specific and potentially applicable where power tool was missing side handle because defect rendered tool unsafe and plaintiff allegedly told supervisor about the defect (Misicki v Caradonna, supra). Portion of regulation § 23–9.2(a) requiring correction upon discovery of structural defects and unsafe conditions in power-operated equipment held inapplicable where defendants demonstrated lack of notice to any structural defect or unsafe condition (Ramos v Patchogue-Medford Sch. Dist., 73 AD3d 1010, 906 NYS2d 45 [2d Dept 2010]).  Regulation § 23–9.2(a) held sufficiently specific to support a Labor Law § 241(6) claim by the Second Department in Hricus v Aurora Contractors, Inc., 63 AD3d 1004, 883 NYS2d 61 [2d Dept 2009]).
A genuine issue of material fact existed as to whether masonry saw sprayed water onto floor because it was malfunctioning or whether water was not foreign substance because wet saws always sprayed water onto floor precluding summary judgment on plaintiff's claim predicated on regulation § 23–9.2(a) where plaintiff allegedly injured when his foot became stuck, causing him to fall off pallet on which he was standing while cutting bricks with saw at construction site (Cappabianca v Skanska USA Bldg. Inc., supra); genuine issue of material fact as to whether § 23–9.2(a) violated when excavating machine drove over plaintiff’'s foot (Gonzalez v Perkan Concrete Corp., 110 AD3d 955, 975 NYS2d 65 [2d Dept 2013]).
Fact question existed with respect to regulation § 23–9.2(a) as to whether air compressor and hose plaintiff was using when he was injured were maintained in good repair and in proper operating condition (Piccolo v St. John’s Home for the Aging, 11 AD3d 884, 782 NYS2d 475 [4th Dept 2004]).
Regulation § 23–9.2(a) held inapplicable where plaintiff allegedly injured during a refacing project while attempting to cut a piece of metal with a hand-held power grinder because the grinder was not a saw or heavy machinery (Cabrera v Revere Condominium, 91 AD3d 695, 937 NYS2d 98 [2d Dept 2012]); inapplicable where truck driver fell from flatbed truck while unloading cement blocks, as there was no evidence that the truck-hoist was defective (Tillman v Triou’s Custom Homes, Inc., supra); inapplicable where there is no allegation that plaintiff was using a tool that was defective or in need of repair (McKee v Great Atlantic & Pacific Tea Co., 73 AD3d 872, 905 NYS2d 601 [2d Dept 2010]).
Regulation § 23–9.2(a) held not violated where owner twice called service technicians to address reported problems with its forklift and had no notice of any other defective condition prior to accident in which plaintiff injured while using the forklift to work on a telephone wire at owner's warehouse (Guodace v AP Wagner, Inc., 96 AD3d 1263, 947 NYS2d 642 [3d Dept 2012]).
Regulation § 23–9.2(a) held not sufficiently specific to support a Labor Law § 241(6) cause of action where plaintiff allegedly injured when he was hit with a load of cinder blocks that became loose and fell on him as it was being hoisted from a flatbed truck by a fork boom and lowered onto a pallet near where he was standing (Gonzalez v Glenwood Mason Supply Co., supra).
Regulation § 23–9.2(b) held insufficient to sustain a Labor Law § 241(6) cause of action (Webber v Dunkirk, supra).  Regulation § 23–9.2(b)(1) requiring that power-operated equipment be operated only by trained, designated personnel and in a “safe manner,” is merely a restatement of the common-law rule and thus insufficient to support a Labor Law § 241(6) cause of action (Berg v Albany Ladder Co., Inc., 40 AD3d 1282, 836 NYS2d 720, aff’d, 10 NY3d 902, 861 NYS2d 607 [3d Dept 2007]; see also Hricus v Aurora Contractors, supra [same]; Scott v Westmore Fuel Co, Inc., 96 AD3d 520, 947 NYS2d 15 [1st Dept 2012] [same]; Penaranda v 4933 Realty, LLC, 115 AD3d 482, 981 NYS2d 690 [4th Dept 2014] [same]).
Regulation § 23–9.2(b)(2) providing that “operators of power-operated material handling equipment shall remain at the controls while any load is being handled” held sufficiently specific to support a Labor Law § 241(6) claim (Padilla v Frances Schervier Housing Dev. Fund Corp., 303 AD2d 194, 758 NYS2d 3 [1st Dept 2003]).
A genuine issue of material fact existed whether backhoe being used to hoist T-connection was handling load under regulation § 23–9.2(b)(2) at the time bucket of backhoe descended into trench where plaintiff was working and crushed him (Mohamed v City of Watervliet, 106 AD3d 1244, 965 NYS2d 637 [3d Dept 2013]).
Regulation § 23–9.2(c) providing that power-operated material-handling equipment should not be loaded in excess of the manufacturer’s design live load rating and that all loads must be properly trimmed to prevent dislodgment of any part of such loads during transit, held insufficient to support a Labor Law § 241(6) claim (Modeste v Mega Contracting, Inc., supra; Armer v General Electric Co., 241 AD2d 581, 659 NYS2d 916 [3d Dept 1997] [same]; Penaranda v 4933 Realty, LLC, supra [same]; Armer v General Elec. Co., 241 AD2d 581, 659 NYS2d 916 [3d Dept 1997]).

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Labor Law Pointers

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David R. Adams

Associate Editor

V. Christopher Potenza

Associate Editor
Steven E. Peiper

Associate Editor

Jennifer A. Ehman

Associate Editor
Marc A. Schulz

Labor Law Team

            David R. Adams, Team Leader                                              Steven E. Peiper
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            Dan D. Kohane                                                                       Cassandra A. Kazukenus
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            Michael F. Perley                                                                   Jennifer A. Ehman
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            V. Christopher Potenza                                                          Marc A. Schulz
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