Labor Law Pointers - Volume III, No. 9

 

From the Editor:  

Happy Fourth of July to one and all.  It seems only fitting that this, the most American of all holidays, comes on the heels of the US soccer team’s outstanding performance.  I have 3 kids playing soccer so I watch a lot of soccer, but the level of play at the World Cup is awe inspiring and the US team made us all proud.  That does not mean that I don’t wish they had gone a little farther, at least to a play Argentina, if only so I could see the confusion on my son’s face as he tried to decide which jersey, Mesi or USA, to wear to camp that day.

When I started out as an attorney, a more experienced attorney with whom I worked always told me whenever I asked a question to RTFS.  What he meant was that he wanted me to Read The “Freaking” Statute.  While I prefer a kindler gentler approach to helping and teaching young attorneys about the practice, it does have meaning to me.  I have included below the statute, color coded, to assist in finding why the cases are decided the way they are.  All decisions we report on and analyze come directly from the statute.  I feel that a familiarity with the statute itself, and not just the cases is important so I have a printed copy on my desk, a copy in the computer just a click away and most of it imprinted on my brain.  I considered going the tattoo route but there was quite a bit of push back at home.

            Thus without further ado, I give you the star of the show, section 240(1), without whom none of this would be possible, [N.Y. Lab. Law § 240 (McKinney)].  Read it again, you just might find something you had forgotten.

 

Red for who is a proper defendant.
Grey for home owner exception.
Blue for the project type needed to qualify
Yellow for the building or structure.
Pink for who is a proper plaintiff.

§ 240. Scaffolding and other devices for use of employees
1. All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.
No liability pursuant to this subdivision for the failure to provide protection to a person so employed shall be imposed on professional engineers as provided for in article one hundred forty-five of the education law, architects as provided for in article one hundred forty-seven of such law or landscape architects as provided for in article one hundred forty-eight of such law who do not direct or control the work for activities other than planning and design. This exception shall not diminish or extinguish any liability of professional engineers or architects or landscape architects arising under the common law or any other provision of law.

            In addition to the statute, I am including Chris Potenza’s refresher on section 200.  He did not have many cases this month so he has provided us all with an excellent recap on section 200.

Hope the Fourth finds you all happy, healthy and out of the office.  See you next month.

David

 

David R. Adams
Hurwitz & Fine, P.C.

424 Main Street
Suite 1300 Liberty Building
Buffalo, New York 14202
Phone:  716.849.8900
Direct:  716.849.8916
Fax:  716.855.0874
Cell:  716.553.6901
Email:  [email protected]
H&F Website:  www.hurwitzfine.com

Labor Law Pointers is published the first Wednesday of each month.  If you know of others who may wish to subscribe to this free publication, please feel free to forward it.  If you wish to subscribe or unsubscribe, please send an e-mail to [email protected] or call the Editor/Labor Law Team Leader David R. Adams directly at (716) 849-8916.
Kuras v Cornell Univ.
June 10, 2014
Appellate Division, First Department

Kuras testified at his deposition that while attempting to descend from the third to the second rung of an unsecured wooden A-frame ladder, the ladder, which had worn legs and no rubber tips, suddenly collapsed, causing him to fall and sustain injuries.  Kuras moved for partial summary judgment against the defendant property owner Cornell.  The trial court denied Kuras’ motion, and he appealed.

Labor Law § 240(1) (DRA)

The First Department held that Kuras’ deposition testimony established his entitlement to judgment as a matter of law.  Cornell failed to raise to an issue of fact as the First Department rejected its argument that the record contained inconsistent accounts as to how the accident occurred.  The First Department held that there is no evidence Kuras simply fell because he lost his balance, “and regardless of whether a lift and another ladder were available at the job site, ‘there was no showing that plaintiff was expected, or instructed, to use those devices and for no good reason chose not to do so.”

PRACTICE POINT:  I am sure that this comes as a shock to all of you but when a ladder slips, shifts, twists, collapses or moves in some manner I can’t even imagine right now, and that motion causes the plaintiff to fall, it is a labor law 240(1) case.  It did not help here that the legs were worn and that there was no rubber on the bottom, but the outcome would likely have been the same where it is the movement of the ladder which causes the fall. 

 

291 Broadway Realty Assoc. v Weather Wise Conditioning Corp.
June 10, 2014
Appellate Division, First Department

The underlying action involved nonparty Edwin Martinez asserting Labor Law claims against plaintiffs herein, which settled before trial.  Plaintiffs now seek contractual indemnification from Martinez's employer, defendant Weather Wise, pursuant to an indemnification provision included in its HVAC service contract with plaintiff Starbucks, which required Weather Wise to indemnify Starbucks for all claims, damages, liability, and expenses incurred by reason of its breach of its contractual warranties and obligations to Starbucks and its "negligent and/or willful acts or omissions in carrying out its obligations under th[e] [HVAC] Agreement."  Plaintiffs’ moved for summary judgment on their contractual indemnification claim, and the trial court denied the motion.

Indemnity Issues in Labor Law (SEP)

On appeal, the First Department began by noting that the clause at issue does not violate General Obligations Law 5-322.1.  Although it purportedly did not contain “savings language,” a plain reading demonstrated that Starbucks did not anticipate being indemnified for losses arising from their own negligence.  However, the trial court’s denial was affirmed where, as here, there remained questions of fact as to whether Weather Wise was actually negligent.  Moreover, because the matter arose from a defective condition at the property, there also remained a question of fact as to whether Starbuck has actual or constructive notice of said condition, and thus would bear some percentage of negligence. 

 

Soriano v St. Mary’s Indian Orthodox Church of Rockland, Inc.
June 17, 2014
Appellate Division, First Department

Soriano, was sent by his employer to replace cracked glass panels in the skylight of defendant St. Mary’s church’s steeple.  Soraino placed an extension ladder belonging to his employer on top of the roof and leaned it against the steeple, ultimately falling from the ladder and causing injuries. Soriano sued St .Mary’s alleging a violation of Labor Law § 240(1) for failing to provide him with an adequate ladder and by failing to provide any safety harnesses or belts that would have prevented his fall.

Soraino moved for partial summary judgment on his § 240(1) claim, and St. Mary’s separately moved for summary judgment to dismiss the complaint.  St. Mary’s argued that at the time of the accident, Soriano was not “altering” or “repairing” the premises, but was performing “routine maintenance,” but its motion was only supported by an attorney affirmation analogizing Soraino’s work to replacing window screens.  Soraino submitted an affidavit in opposition, arguing that based on his 43 years of experience, skylight panels do not “crack” or “wear out” over time, and could have remained in place indefinitely unless some unusual event caused them to crack or break. The trial court rejected Soraino’s argument and dismissed his complaint.

Labor Law § 240(1) (DRA)

The issue on appeal was whether Soraino’s was involved in “repair work,” which is protected by § 240(1) or “maintenance work,” which is not.  The First Department, held that Soraino was involved in “repair work,” and not “maintenance work” because the panes were not being replaced “as a result of normal wear and tear, as they were not expected to be regularly replaced;” St. Mary’s presented no evidence that the panes had ever been replaced; and Soraino, with over 30 years of experience, was qualified to describe the replacement of the panes as “repair work.”  Accordingly, the First Department determined Soraino established prima facie entitlement to judgment on the issue of liability, and St. Mary’s failed to offer evidence that would raise a triable issue of fact.

PRACTICE POINT:  Those of you who have followed this publication over the years know I love these cases.  What is a repair, what is maintenance, what is an alteration; these are the questions that get the blood flowing for any labor law attorney.  Here, the windows were broken, it was not a regularly scheduled replacement and the windows were not designed to last only a limited period of time.  In these cases always look to the repair/maintenance history.  I look to establish that the item being worked on has to be worked on in regular intervals to establish that it is not repair but rather that the item has simply performed it function for its regular life cycle and that it is simply maintenance to put a new bulb, belt, motor, wire, electrode or whatever part needs replacement.  It is the periodic nature of the work that usually carries the day.  Here the windows were installed 30 years earlier and had never been replaced previously.  It was a repair and as a ladder shifted causing the fall the plaintiff is awarded Summary Judgment.

 

Sanchez v Palmiero
June 18, 2014
Appellate Division, Second Department

Sanchez, an employee of Peter Cooney Construction, was allegedly injured during the course of his employment as a roofer when he fell off the roof of a building owned by defendant Palmiero. The building, which was classified as a single-family structure by the City of New York, had been purchased seven months prior to the accident, but was vacant at the time of the accident, as it was still under renovation.

Following completion of discovery, Palmiero, as well as the codefendant American Claims Adjustors, Inc. (American Claims), a business operated by Palmiero, moved separately for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) on the ground that they were entitled to the homeowner's exemption set forth under those sections of the statute.  Palmiero argued that, at the time of the accident, it had been his intent to move into the structure following the completion of renovations and to use it as his primary residence, and that he was going to maintain only a small "home office" therein in which he would conduct his business.  American Claims submitted evidence that it was not an owner, contractor or statutory agent.  The trial court granted defendants' motions.  Sanchez appealed.

Labor Law § 240(1) (DRA)

The Second Department held that Palmiero established his prima facie entitlement to judgment as a matter of law dismissing the Labor Law §§ 240(1) and 241(6) claims on the ground that he was protected by the homeowner's exemption under the Labor Law.  However, in opposition, Sanchez raised a triable issue of fact as to whether the structure was to be used primarily as a residence or for commercial purposes when the renovations were completed.  Accordingly, the trial court should have denied those branches of Palmiero's motion which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against him.

PRACTICE POINT:  A single or double family home may have the ability to utilize the exception from the labor law even when there is some commercial use of the property.  In the instant case the defendant property owner was not able to sway the court that the commercial use of the property was limited to the extent that it was primarily a residential home.  A tactic I have employed in cases of this type is to produce the plans for the home to demonstrate the relatively minimal percent of the home being used for an office which, I have to admit, does not work every time.  This is often a question of fact for the jury to determine where there is conflicting testimony or arguments as there appears to have been here.  Note that the defendants company had the suit dismissed as against them, a helpful step for the owner to make his argument to the jury.

 

Shields v First Ave. Bldrs. LLC
June 19, 2014
Appellate Division, First Department

Shields was cleaning a concrete pump, with the engine running, when a swing tube in the pump swiveled, severing his fingers.  He was inspecting a ring or groove in the tube for residual grout, and claims that the hydraulics that caused the pipe to move reengaged on their own, despite the fact that he had turned them off.  Shields filed this Labor Law action and defendants moved for summary judgment dismissing the § 241(6) claim predicated on Industrial Code (12 NYCRR) § 23-9.2(a).  The trial court denied the motion, and defendants appealed.

Labor Law § 241(6) (JAE)

In considering the language of the provision, the court reviewed it in two parts.  First, it found that the third sentence of 12 NYCRR 23-9.2(a), which states that “[u]pon discovery, any structural defect or unsafe condition in [power-operated] equipment shall be corrected by necessary repairs or replacement,” was inapplicable to the facts of this case since the evidence showed that defendants did not have actual prior notice of the unsafe condition of the hydraulics reengaging after they had been turned off. 
However, the final sentence of 23-9.2(a), which stated that “[a]ny servicing or repairing of such equipment shall be performed only while such equipment is at rest,” was applicable.  The court reasoned that this sentence was sufficiently specific to form a predicate basis for Labor Law § 241(6) liability.  Given the evidence that the pump would not operate properly if the ring or groove was not completely cleaned of grout after each use, plaintiff’s work on the pump at the time of the accident constituted “servicing” within the meaning of 23-9.2(a).  Further, the evidence that the engine was still running and that the hydraulics reengaged on their own, showed that the machine was not “at rest.”

 

Jerez v Tishman Constr. Corp. of N.Y.
June 24, 2014
Appellate Division, First Department

Jerez, a carpenter, was allegedly injured while working at the construction of the new World Trade Center building when the brace he had secured his lanyard to gave way, causing him to fall 14 to the plywood floor below.  Jerez filed this Labor Law §§ 240(1), 241(6) and 200 action, and moved for summary judgment on his § 240(1) claim.  Defendants moved to dismiss the §§ 241(6), 200 and OSHA article 1926 claims.  Jerez then cross-moved for summary judgment on his § 241(6) claim.

The trial court denied Jerez’s motion regarding his § 240(1) claim; denied defendants’ motion seeking dismissal of the § 241(6) claim; and granted defendants motion seeking dismissal of the § 200 and OSHA claims.  The trial court also denied Jerez’s cross-motion.

Labor Law § 240(1) (DRA)

Defendants argued on appeal that Jerez was the sole proximate cause of his injuries.  The First Department determined Jerez made a prima facie showing of his entitlement to judgment as a matter of law on the issue of defendants' liability under Labor Law § 240(1) as defendant Port Authority’s witness plainly testified that Jerez was not provided with two lanyards for 100% fall protection. 

The First Department noted that although it need not address the remaining claims, it would hold that the trial court properly dismissed the § 200 and OSHA claims.  In addition, the trial court should have granted Jerez summary judgment on his § 241(6) claim predicated on Industrial Code (12 NYCRR) § 23-1.16(b), which is sufficiently specific.  Further, the record demonstrates that the regulation was violated, as the "approved safety belt or harness" was not "properly attached either to a securely anchored tail line, directly to a securely anchored hanging lifeline or to a tail line attached to a securely anchored hanging lifeline", and the attachments Jerez was using were clearly not arranged to prevent him from falling more than five feet.

PRACTICE POINT:  It is not sufficient to provide plaintiff with the best safety harness and lanyard in the world if there is not provided to the plaintiff an appropriate attachment point.  Here, the brace the plaintiff attached the lanyard to gave way, allowing the plaintiff to fall. 

 

Ortega-Estrada v 215-219 W. 145th St. LLC
June 24, 2014
Appellate Division, First Department

Plaintiff allegedly was injured while using a table saw that was not equipped with a blade guard or spreader.  He filed this Labor Law action, and moved for summary judgment on his § 241(6) claim.  Defendants cross-moved to dismiss the § 200 and common-law negligence claims.  The trial court granted plaintiff’s motion, and denied defendants’ cross-motion.  Defendants appealed.
Labor Law § 241(6) (JAE)
First Department affirmed finding that Plaintiff established entitlement to judgment as a matter of law on liability where he alleged that he was injured while using a table saw that was not equipped with a blade guard or spreader (see 12 NYCRR 23-1.12[c][2], [3]).  That plaintiff was the sole witness to the accident did not warrant a different determination.
Defendants failed to raise an issue of fact and no evidence of culpable conduct on the part of plaintiff was presented.
Labor Law § 200 and Common-Law Negligence (VCP)

In view of the grant of summary judgment to plaintiff on the issue of liability on the § 241(6) claim, defendants' contentions regarding the Labor Law § 200 and common-law negligence claims are academic.

 

Penaranda v 4933 Realty, LLC
June 24, 2014
Appellate Division, First Department

Plaintiff was allegedly injured when he was thrown from a “Bobcat” front-end loader while on a construction site.  He was employed by third-party defendant tenant K&S Construction (K&S). K&S was hired by defendant landlord to construct a curb around the perimeter of a 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 in the Bobcat's front bucket.  He was thrown off when the two back wheels of the Bobcat lifted up unexpectedly.

Plaintiff filed this Labor Law § 240(1) action.  Defendant landlord filed a third-party action the tenant.  Defendant landlord moved to dismiss plaintiff’s complaint, and the third-party defendant tenant moved to dismiss the third-party complaint.  The trial court granted defendant landlord’s motion dismissing plaintiff’s complaint against it, and granted third-party defendant tenant’s motion to dismiss the third-party complaint.  

Labor Law § 240(1) (DRA)

The issue on appeal is whether plaintiff was engaged in construction work when moving the plywood so as to afford him the protection of the Labor Law.  If, as plaintiff alleges, the plywood was being moved to clear the work site where the curb was under construction, plaintiff was "altering" the premises within the meaning of Labor Law § 240(1).  The First Department held that since the landlord and K&S submitted evidence that the accident occurred in the warehouse and that the construction work and plaintiff’s activity were related, a question of fact was raised as to whether plaintiff’s work an alteration under the status or simply routine maintenance.

Assuming that plaintiff was engaged in construction work, the First Department held that falling from the Bobcat is the type of gravity-related event contemplated by the Court of Appeals in Runner.  The First Department noted that in Potter v Jay E. Potter Lbr 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 protection of Labor Law § 240(1).  Further, the First Department noted to the extent that our holding in Modeste v Mega Contr., Inc. (40 AD3d 255  [2007]), is to the contrary, we depart from it based on the holding in Runner.

PRACTICE POINT:  The most important point here is that you need to look closely at a case and decide where your best opening is to provide the best outcome to your client.  It is not always obvious.  Here, the “it seemed like a good idea to stack stuff on the bobcat to counterbalance the overweight load we were picking up” defense was not the best option and the defense recognized that.  Look at the basics first every time.  Anyone who has seen our labor law presentation, live or one of our webinars knows we harp that the place to start the analysis of any case is the most basic.  For a labor law case there are 4 preliminary questions:

  1. Is this a statutory defendant?
  2. Is the project “covered” by the statute?
  3. Is the injured party “protected” by the statute?
  4. Is the accident an “event” within the contemplation of the statute?

 

It is the answer to these questions that allows you to analyze the case.  Here, there was a question of fact as to the nature project the plaintiff was engaged in and thus if it would qualify as construction or alteration.  Start at the beginning, that way you will miss less.

Labor Law § 241(6) (JAE)

The court then, agreeing with the trail court, summarily dismissed plaintiff’s Labor Law § 241(6) claim.  NYCRR 1223-9.2(b)(1) requirements are merely restatement of common-law rule and NYCRR 1223-9.29(c) (excessive loading prohibitions) are insufficient to support Labor Law § 241(6) claim.

 

Mora v Nakash
June 25, 2014
Appellate Division, Second Department

Defendants, David and Debbie Nakash (the Nakashs), contracted separately with codefendant, M.N.C. General Contractors Corp. (MNC), and third-party defendant, Silvio Painting, Inc. (Silvio), to complete a construction project on their single-family home.  Mora was employed by Silvio.  While painting the house, Mora allegedly sustained injuries when he fell from a ladder he had placed atop a scaffold.  Mora filed this Labor Law § 240(1) action against MNC and the Nakashs.  MNC filed a cross-claim against the Nakashs. 

Mora moved for summary judgment on his § 240(1) claim, and the Nakashs cross-moved for summary judgment dismissing the complaint as against them and MNC’s cross-claim.  The trial court granted Mora’s motion, and granted the Nakashs’ cross-motion.  MNC appealed.

Labor Law § 240(1) (DRA)

The Second Department held the trial court properly granted the Nakashs’ cross-motion which was for summary judgment dismissing MNC's cross claims.  Pursuant to Labor Law § 240(1), "owners of one and two-family dwellings who contract for but do not direct or control the work" are exempt from liability thereunder.  The Nakashs’ made a prima facie showing that they were entitled to the homeowner's exemption by submitting evidence that their house was a single-family residence and that they did not direct or control Mora’s work.  Thus, the Nakashs’ were entitled to summary judgment dismissing MNC’s cross-claim and MNC failed to raise a triable issue of fact as to the applicability of the homeowners’ exemption.

However, the Second Department held the trial court should not have granted Mora's motion for summary judgment on the issue of liability on his § 240(1) against MNC.  Mora established his prima facie entitlement to judgment as a matter of law through his deposition transcript, at which he testified the ladder and scaffold failed to afford him proper protection for the work being performed, and that this failure was the proximate cause of his injuries. 

In opposition, MNC raised a triable issue of fact as to whether it lacked the authority to supervise Mora’s work and enforce safety standards at the site.  MNC submitted evidence showing that it was responsible for supervising only those subcontractors that it hired, that it did not hire Silvio as its subcontractor, that Silvio and MNC had separate contracts with the owners, that MNC's contract excluded it from responsibility for overseeing the paint job, and that MNC's contract did not provide that it was responsible for enforcing safety standards.  In addition, MNC raised a triable issue of fact as to whether Mora’s conduct was the sole proximate cause of his accident, as it submitted evidence showing that either the ladder or the scaffold, alone, was adequate for the job at hand, thereby negating any need for the plaintiff's placement of the ladder on top of the scaffold. 

PRACTICE POINT:  Do not forget that to be a contractor to whom the labor law applies you need to have the authority to supervise, direct or control the plaintiff’s work.  An owner is an owner, easy to identify usually, but qualifying a contractor is not always as easy.  We always try and start with the contracts.  I have a big white board right behind my desk and on it you will see drawn boxes and arrows indicating contracts for the various entities involved in the construction project.  There are lines for contracts, lines for policies and carriers, notes about tenders and notices.  Here, it appears that MNC had distanced itself from the paining work and specifically noted that in the contract.  Good lawyering by the attorney who helped draft the contract.  Never underestimate the importance of having an attorney who understands both the labor law and coverage review contracts BEFORE work starts, the savings in the end can outweigh the cost of the review by a factor of 100 easily.

 

Kharie v South Shore Record Mgmt., Inc.
June 25, 2014
Appellate Division, Second Department

Kharie, an employee of nonparty Workforce Logistics Corp., was allegedly injured when he fell 12 feet from one of the shelves he was in the process of dismantling at defendants’ warehouse.  The shelving, which was being dismantled and reassembled in a different portion of the warehouse, was free-standing, and the shelves were connected in a tongue-and-groove fashion, some of which required the use of a hammer to separate the pieces.  Kharie was not provided with any safety equipment and, at the time of the accident, was standing on the one of the shelves in order to disassemble the higher levels of the shelving unit.  Kharie filed this Labor Law § 240(1) action, and moved for summary judgment on the issue of liability.  The trial court granted Kharie’s motion.  Defendants appealed.

Labor Law § 240(1) (DRA)
The Second Department noted that the Court of Appeals has defined a structure as "any production or piece of work artificially built up or composed of parts joined together in some definite manner."  Contrary to defendants' contentions, the Second Department held the shelves at issue constituted a "structure" under Labor Law § 240(1), as they were composed of component pieces (metal grates and cross bars) attached in a definite manner.  Further, at the time of the incident Kharie was engaged in both alteration and demolition work within the meaning of the statute.

Therefore, the Second Department held Kharie established his prima facie entitlement to judgment as a matter of law by presenting undisputed evidence that he fell from a height while working at defendants' warehouse, that defendants failed to provide him with safety equipment, and that this failure was a proximate cause of his injuries. In opposition, defendants failed to raise a triable issue of fact.

PRACTICE POINT:  Two important points here, first a structure is essentially anything made up of component parts and second that if the plaintiff is taking a structure apart, it is demolition and thus covered. 

Labor Law Section 200

With the typical summer slowdown of appellate decisions, it seems appropriate to provide a brief recap of the current state of the law on Labor Law § 200.  It is long standing in New York that owners and contractors must provide workers with a safe place to work.  In this vein, Labor Law § 200 simply codifies the obligation owners and contractors have to provide safety to workers. 

There is a two-prong analysis to establish a claim for negligence/Labor Law § 200 as a plaintiff must:   

  1. establish that those charged with liability either created the condition or had actual or constructive notice of the unsafe condition; or
  2. establish that a defendant had supervision and control over the work being performed to correct or avoid the unsafe condition.

Unlike the decisions addressing liability under Labor Law § 240(1), in which the Courts are constantly re-construing (or misconstruing) concepts such as “gravity related”, § 200 jurisprudence is fairly well defined and not subject to as much legal analysis.  Most cases are fact dependent with little ability for creative plaintiffs to extend the breadth of the statute. 

In the past year we have seen the appellate courts continue the tradition of a narrow construction of this statue.  Where a plaintiff’s § 200 claim is premised upon alleged dangers in the methods of the work, an owner or general contractor will be held liable only where it had the authority to supervise or control the performance of the work.  The courts have consistently held that merely  the right to generally supervise the work, stop the contractor’s work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient to impose liability under § 200 or for common-law negligence.  To impose liability, there must be direct supervision of the injured party’s work. 

However, in instances where the injury is the result of a defective or dangerous condition on the premises, the courts have not been shy about finding an issue of fact as to constructive notice of the condition if there was evidenced that the defendant performed regular inspections of the worksite. 

 

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

Regulation § 23–9.2(g) requiring that any load being handled by power equipment be either lowered to the ground, grade or equivalent surface, or if not possible, brought to a rest on blocks, sets forth concrete specifications sufficiently specific to sustain a Labor Law § 241(6) cause of action (Padilla v Frances Schervier Housing Dev. Fund Corp., supra).
A genuine issue of material fact existed whether backhoe being used to hoist T-connection was “at rest” under regulation § 23–9.2(g) at the time bucket of backhoe descended into trench where plaintiff was working and crushed him precluding summary judgment (Mohamed v City of Watervliet, supra).
Regulation § 23–9.2(i) prohibiting persons from riding in buckets of power-operated equipment, held not the proximate cause of injuries sustained by plaintiff when counterweight of shovel arm of excavator struck him on shoulder because although plaintiff had ridden in the bucket of the excavator in violation of the regulation to lower himself into trench, plaintiff was no longer in bucket at time of incident (Carroll v County of Erie, 48 AD3d 1076, 850 NYS2d 738 [4th Dept 2008]).
Regulation § 23–9.4 setting standards for the use of “backhoes” and “power shovels” used for material handling, held applicable where front-end loader being used as “excavating machine” as defined in 12 NYCRR 23-1.4(b)(18) to hoist material; applicability of rule depends on manner in which equipment used rather than equipment’s name or label (St. Louis v Town of North Elba, 16 NY3d 411 [2011]); applicable where plaintiff struck by pipe that fell while being lifted by payloader, since payloader was being used to accomplish same task as power shovel (Copp v City of Elmira, 31 AD3d 889, 819 NYS2d 167 [3d Dept 2006]).
Regulation § 23–9.4(a) requiring equipment to be so constructed, placed and operated as to be stable and that such equipment shall not be stressed beyond their capacities as determined by the manufacturers, not sufficiently specific to support a Labor Law § 241(6) cause of action (Robinson v County of Nassau, 84 AD3d 919, 923 NYS2d 135 [2d Dept 2011]).
Regulation § 23–9.4(b)(2) requiring that “[i]nspection and repair of each [power shovels and backhoes] be performed with the motor stopped and with the boom lowered and adequately supported,” held inapplicable where plaintiff not injured while repairing one of the pieces of power equipment enumerated in that provision but while repairing a “loader” at a landfill (Phillips v City of New York, 228 AD2d 570, 644 NYS2d 764 [2d Dept 1996] [abrogated on other grounds by Misicki v Caradonna, supra]); but see St. Louis v North Elba, supra (declining to follow Phillips to the extent it holds 23-9.4 inapplicable based solely on equipment’s name or label).
Regulation § 23–9.4(e) requiring loads carried by power shovels and backhoes to be fastened with sturdy wire applied to front-end loader being used to construct a drainage pipeline, is sufficiently specific to support a Labor Law § 241(6) cause of action (Parrelli v City of New York, 277 AD2d 167, 716 NYS2d 308 [1st Dept 2000]).
Regulation § 23–9.4(e) applicable where plaintiff injured when clamshell bucket attached to front-end loader’s bucket arm opened and released a pipe because although regulation did not specifically mention front-end loaders, this particular front-end loader functioning in the same manner as power shovel or backhoe as it was used to suspend dangerous construction materials from its bucket arm (St. Louis v Town of North Elba, supra).
With respect to regulation § 23–9.4(e), materials issues of fact existed as to whether wire rope was appropriate to suspend iron pipe as it was being lowered into trench during town’s water system construction, and as to whether hooks were equipped with appropriate safety latches, to plaintiff injured upon being struck by pipe by failing to use wire rope fitted with safety self-closing latches to suspend pipe from excavator’s bucked used to lower pipe into trench (Kropp v Town of Shandaken, 91 AD3d 1087, 937 NYS2d 345 [3d Dept 2012]).
Regulation § 23–9.4(e)(1) requiring that any load handled by power equipment be suspended from the bucket by wire rope having a safety factor of four, is sufficiently specific to support to a Labor Law § 241(6) cause of action (Padilla v Frances Schervier Housing Dev. Fund Corp., supra; Brechue v Wheatfield, 241 AD2d 935, 661 NYS2d 334 [4th Dept 1994] [same]).
Regulation § 23–9.4(e)(2) requiring that any load handled by power equipment be suspended from the bucket by wire rope connected by means of either a closed shackle or a safety hook capable of holding at least four times the intended load, is sufficiently to support a Labor Law § 241(6) cause of action, and held arguably violated when load is suspended from cable in a way that permits the load to shift (Padilla v Frances Schervier Housing Dev. Fund Corp., supra).
Regulation § 23–9.4(h)(4) requiring that unauthorized persons shall not be permitted in the cab of equipment used for material handling or in the area immediately adjacent to such equipment, is sufficiently specific to support a Labor Law § 241(6) claim, and inapplicable where plaintiff injured while removing rod from trench when counterweight of shovel arm of excavator struck him on shoulder because plaintiff not an “unauthorized person” within meaning of regulation (Carroll v County of Erie, supra); inapplicable where member of work crew replacing sidewalk, who was injured when excavating machine drove over his foot because he was not an “unauthorized person” within meaning of regulation (Gonzalez v Perkan Concrete Corp., supra).
Regulation § 23–9.4(h)(5) prohibiting carrying or swinging of suspended loads over areas where persons were working was violated at sewer extension worksite, is sufficiently specific and applicable to plaintiff injured when a frozen conglomerate of stone fell on his head while he standing in a trench (Leszczynski v Town of Neversink, 107 AD3d 1183, 968 NYS2d 204 [3d Dept 2013]).
With respect to regulation § 23–9.4(h)(5), materials issues of fact existed as to how accident occurred in which construction worker was struck by iron pipe being lowered into trench by swinging or suspended pipe over area in which worker was working (Kropp v Town of Shandaken, supra).
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