Back to Top

Labor Law Pointers - Volume IV, No. 1

From the Editor:
Do you have a situation?  We love situations and want to help you solve all of yours. 

Speaking of situations, what do you think of the situation this guy has gotten himself into?  This photo was given to me and made me wonder, even before I read the Passantino v Made Realty Corp. case below what would happen if the guy at the bottom let go of the ladder and the worker on the ladder was injured.  In Passantino v Made Realty Corp. the situation is even stranger, the worker at the bottom of the ladder lets go and he is the one hurt.  Alright, I admit that the way he was holding the ladder was less dramatic, but that should not matter to the outcome.  The Second found that the worker who was holding the ladder and let go, saw the ladder starting to slide, grabbed the ladder again and injured his shoulder was entitled to the protection of the labor law.  I simply do not understand.

In other news the Governor has made a change in the Court of Appeals, not reappointing Judge Graffeo, a Republican, and instead appointing a Democrat, Judge Stein.  While the nomination is likely not related to labor law cases we were interested in that aspect.  We have pulled all of Judge Stein’s labor law decision from the Third Department where she was sitting and attached them to this edition.  If you are as obsessed as I am and actually read the all you will find that her rulings in labor law cases over the past several years were down the middle, with 6 for the plaintiff, 8 for the defendant and 4 held to have questions of fact.  This is not a substantial change from the record of Judge Graffeo.  For anyone interested we have attached summaries of all her decisions in the past 5 years at the end of the newsletter, just in case you were having trouble sleeping.  She appears to have ruled in a disproportionate number of homeowner exclusion cases, with the rulings going both ways depending on the character of the ownership and the purpose of the work being performed. 

Please take us up on our offer to help with any questions you may have regarding the labor law. We truly do enjoy discussing strange fact patterns with you all so feel free to call, email of just stop by to talk, we are always available. 

Enjoy the issue, some great, of at least very interesting, cases for you this 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.

Moscoso v Overlook Towers Corp.
October 2, 2014
Appellate Division, First Department

Plaintiff John Moscoso, an elevator mechanic, allegedly was injured when he slipped on ice and fell as he descended an exterior steel staircase that led from the roof of defendant’s building to the elevator motor room.  Moscoso testified there was freezing rain falling at the time he slipped.  He brought this common-law negligence and Labor Law §§ 240(1), 241(6), and 200 action.  The trial court granted defendant’s motion for summary judgment dismissing the complaint.

Labor Law § 240(1) (DRA)

The First Department affirmed dismissal of the §§ 240(1) and 241(6) claims because the record established that Moscoso was engaged in routine maintenance of the building’s elevators.

PRACTICE POINT:  Routine maintenance does not establish labor law liability.  When in doubt make sure you obtain the prior maintenance records to establish a regular pattern of maintenance, hopefully on a regularly scheduled interval. 

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

The First Department affirmed the dismissal of the § 200 and common-law negligence claim because Moscoso testified that there was a freezing rain falling at time he slipped.  Applying the “storm-in-progress” defense, the Court ruled that a property owner will not be held liable in negligence for a plaintiff's injuries sustained as the result of an icy condition occurring during an ongoing storm or for a reasonable time thereafter.

 

Francis v Plaza Const. Corp.
October 2, 2014
Appellate Division, First Department

Plaintiff Jeremiah Francis allegedly tripped on a piece of electrical conduit, and filed this common-law negligence and Labor Law action against defendants’ property owner, general contractor, and electrical subcontractor.  The trial court denied defendant/third-party plaintiff Plaza’s motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims, and on Plaza’s claims for contractual and common-law indemnification against third-party defendant Sage Electrical. 

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

The First Department reversed and granted Plaza’s motion to dismiss the Labor Law § 200 and common-law negligence claims.  Plaintiff's injury was caused by the manner in which work was being performed by the electrical contractor, not by a defect or dangerous condition existing on the premises, and the record established that Plaza did not exercise supervision or control over the injury-producing work.  Further, the deposition testimony showed that Plaza was not responsible for removing or clearing the piece of electrical conduit that allegedly caused plaintiff to trip.

Indemnity Issues in Labor Law (SEP)

Plaza’s motion for summary judgment was granted because it was clear that the incident was connected to/with Sage’s work.  As such, the broad indemnity clause at issue was triggered.  The court noted that the fact the indemnity clause contained a provision exempting Plaza from recovery for its “own negligence if not permitted by law” qualified as “savings language,” thus satisfying GOL § 5-322.1.  Here, however, because Plaza was not negligent, the Section 5-322.1 was irrelevant. 
Finally, the Court stated that a question of fact remained as to Plaza’s potential liability under Labor Law § 241(6).  As Plaza’s lack of active negligence was clear, but its potential statutory liability still at issue, the Court ruled that its claim for common law indemnification was premature. 
Peiper’s Point - Recall that for a common law indemnity claim to exist there must be a finding of statutory liability.  Owners/GC’s can lose by winning if they establish Labor Law § 240 and/or 241(6) does not apply.  Where there is no imposition of liability, there is no basis for common law indemnity.  Expenditures of attorneys’ fees alone will not trigger indemnity. 
Guallpa v Leon D. DeMatteis Const. Corp.
October 2, 2014
Appellate Division, First Department

Plaintiff Milton Guallpa allegedly injured his right knee while working at a construction site.  Defendant DeMatteis was hired by NYC School Construction Authority to act as the general contractor on the construction of a school.  Guallpa’s employer, New Town, was hired by DeMatteis to perform masonry work at the school.  New Town received concrete stones on wooden pallets, which were covered with a plastic tarp to keep them dry from the elements.  On day of Guallpa’s accident, he was constructing scaffold near some pallets.  As he walked by the pallets, a stone block resulting on top of the pallets allegedly fell and struck him on the knee.

The trial court denied Guallpa’s motion for partial summary judgment on his Labor Law §§ 240(1) and 241(6) claims, and granted Defendants cross-motion to dismiss the §§ 240(1) and 241(6) claims.  The trial court declined to address that portion of Defendants’ cross-motion to dismiss the common-law negligence claims, finding that aspect untimely.

Labor Law § 240(1) (DRA)

Guallpa argued the scaffold law applied to his injuries because they were caused by defendants’ failure to provide an adequate safety device to hold the plastic tarp in place.  Specifically, he argued the plastic tarp was inadequately secured because, if it had been properly secured, such as with ropes and stakes, the injury would not have occurred. 

The First Department affirmed the trial court’s dismissal of this claim because Guallpa’s injury was not caused by the absence or inadequacy of the kind of safety device enumerated in the statute.  According to the court, the plastic tarp was not an object that needed to be secured for the purpose of the statute, nor was there any indicate that the tarp caused the injury. 

PRACTICE POINT:  We have seen this exact same case before and the result on the 240(1) portion is the same, that the object which falls must be an object which was either being hoisted or should have been secured, there is no reading of these facts where a block placed on top of a tarp to hold it in place would be expected to be secured.

Labor Law § 241(6) (JAE)

The First Department affirmed dismissal of this claim predicated on a violation of 12 NYCRR § 23-2.1(a)(1) because Guallpa’s injury occurred in an open work area and not in a passageway or a walkway.  The court further noted there was no indication the pallet was stored in an unstable or unsafe manner.    

DeSimone v City of New York
October 2, 2014
Appellate Division, First Department

Plaintiff Paul DeSimone testified he was the project manager employed by a general contractor whose job pertained to financial issues such as billing of subcontractors and revenue projections for the construction project.  DeSimone allegedly tripped and fell in a vestibule he was walking through, intending to conduct a visual inspection of a condition alleged by defendant O’Kane to support a back charge for “additional work” to determine whether this claim was substantiated.

The trial court granted defendants’ motion for summary judgment dismissing DeSimone’s Labor Law § 241(6) claim, granted third-party defendants Hillside and Danco’s motions to dismiss the common-law negligence claims against them, and conditionally granted defendants DASNY and Bovis’ motion for contractual indemnification against O’Kane.     

Labor Law § 241(6) (JAE)

The First Department reversed the trial court’s decision to dismiss this claim because the court determined DeSimone was not merely working in a building that happened to be under construction.  Rather, the court held that DeSimone’s job duties, including the inspection, were contemporaneous with and related to ongoing work on project.  Thus, the statute applied to DeSimone’s injury even though he did not perform the “labor-intense aspects of the project.”

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

The First Department held the trial court properly dismissed DeSimone’s common-law negligence and Labor Law § 200 claims against Hillside and Danco. DeSimone alleged Hillside was responsible for the placement of steel handrails in an area of the fifth floor of the subject building, causing him to trip over them.  He further alleged that Danco was responsible for inadequate temporary lighting in the area.  Both Hillside and Danco met their burden by submitting evidence demonstrating that they had no authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition. 

Hillside, a steel subcontractor, established it merely manufactured steel handrails and delivered them in a truck to the site, while another party would unload the rails and place them in the building for storage. 

Similarly, Danco established it was retained by O'Kane, the prime electrical contractor, merely to perform the initial installation of temporary lighting, which was completed on the fifth floor well before the accident occurred, and had no continuing responsibility for maintaining or replacing the temporary lighting.

Indemnity Issues in Labor Law (SEP)
The indemnification clause in the contract provided O’Kane would respond where there were injuries “caused by, resulting from, arising out of, or occurring in connection with the execution of the Work.” Where it is clear that the incident was “caused by or occurring in connection with” O’Kane’s work, the clause was triggered. In addition, the Court noted that because the question of DASNY’s negligence remained outstanding, only an award of conditional contractual indemnification was appropriate at this stage in the proceeding.
Jones v County of Erie
October 3, 2014
Appellate Division, Fourth Department

Plaintiff James Jones allegedly was injured when he fell out of a tree while trimming branches.  The accident occurred on property owned by defendant County of Erie, who hired ASD as the general contractor to clean up damage caused by a storm.  Defendant MP had been hired by the County to monitor the work, and Jones’ employer was a subcontractor retained to trim damaged branches from trees.  The trial court granted the County, ASD and MP’s motions for summary judgment dismissing the complaint alleging common-law negligence and violations of Labor Law §§ 200, 240(1) and 241(6). 

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

The Fourth Department upheld dismissal of the Labor Law § 200 and common-law negligence claims against defendants.  All three moving defendants established they did not have supervisory control over Jones’ work and did not have input into how he performed his work. Although the County had an employee who monitored Jones’ work on the day in question, that employee did not control the manner and method of his work; rather, her role was limited to making sure that Jones completed his work. Moreover, the County did not provide Jones with any of his equipment, which was provided by his employer.  With respect to ASD and MP, Jones acknowledged during his deposition that he never took any instruction from employees of those two parties.  Dismissal was warranted because Jones’ injuries arose from the manner in which removal of the branch was undertaken and none of the moving defendants had any input into how the branch was to be removed.

Leathers v Zaepfel Development Co., Inc.
October 3, 2014
Appellate Division, Fourth Department

Plaintiff David Leathers worked as a senior technician at BV and was assigned to the corrosion chamber, which simulates the long-term effects of weather on metal products by exposing them to a saline solution.  He was to clean the chamber between tests.  On the day of his accident, Leathers’ opened the lid to the chamber and noticed water on the bottom of the chamber, which indicated the drain inside the chamber was clogged.  He took apart the PVC piping leading to the drain and attempted to remove the clog using an air hose and fish tape.  When that did not work, he sprayed water into the pipe, which broke up the clog.  He sprayed down the chamber from the outside but, because the floor of the chamber was still dirty, he climbed into it to clean the floor.  As he was exiting the chamber onto a stepladder, the ladder became unstable and he fell to the ground.  

The trial court granted defendants’ motions for summary judgment dismissing the complaint, and denied Leathers’ cross-motion on liability on his Labor Law § 240(1) claim.  Defendants’ expert averred that the PVC piping had no mechanical fasteners and was “merely a friction fit, therefore, it would be a routine task to remove.”   

Labor Law § 240(1) (DRA)

Leathers argued that unclogging a pipe constitutes repair work.  According to the Fourth Department, neither the corrosion chamber nor the components of the “dunnage system” i.e. the floor drain and plastic piping, were in need of repair.  Rather, the drain was clogged, at least in part, as a result of the normal operation of the chamber.  Leathers testified that the clog consisted of “paper and what looked to be like pieces of wooden dowel from like Q-tips that they use,” i.e. parts of samples that had been placed in the chamber on prior occasions, as well as an unknown substances. 

Thus, the court held that Leathers was not “repairing” the corrosion chamber at the time he was injured, and thus not engaged in a protected activity under the statute.  The court further distinguished Benfanti v Tri-Main Dev. and Crossett v Schofell in holding that plaintiff was engaged in routine maintenance in a non-construction, non-renovation context, and thus not entitled the “extraordinary protections of the Labor Law § 240(1).”

PRACTICE POINT:  Drains clog, light bulbs burn out and belts need to be replaced.  This type of work is not a repair but rather a normal part of operating a business.  In addition the courts have time held that where the fall from a ladder occurs within the context of the manufacturing process that it does not create a labor law claim.

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

The Fourth Department held the trial court properly granted defendants' motion dismissing the Labor Law § 200 cause of action.  Leathers’ accident resulted from the manner in which the work was performed, not from any dangerous condition on the premises, and defendants exercised no supervisory control over the work.

Miles v Buffalo State Alumni Ass’n, Inc.
October 3, 2014
Appellate Division, Fourth Department

Plaintiff Seymour Miles was working for a college dormitory with a coworker, unloading a double sheet of drywall form a wheeled cart.  The remaining drywall on the cart moved and struck them, and the cart also toppled over and allegedly struck plaintiff, causing him to fall to the floor and injure his shoulder.  The trial court granted defendants’ cross-motion to dismiss the complaint alleging common-law negligence and violations of Labor Law §§ 200, 240(1) and 241(6) predicated upon 12 NYCRR § 23-2.1(a)(1) and 6.1(j)(2).

Labor Law § 240(1) (DRA)

The Fourth Department held that at the time of Miles’ accident, he was standing on the ground and the drywall on the cart was not being hoisted or secured, and the cart was not being hoisted or otherwise moved vertically.  Thus, the court concluded that Miles’ injuries were not the direct consequence of a failure to provide blocks or stays to protect against a risk arising from a physically significant elevation differential.  Moreover, defendants established “that the injuries resulted from a general hazard encountered at a construction site and were not the direct consequence of a failure to provide an adequate device of the sort enumerated” under the statute.

PRACTICE POINT:  The “general hazard” argument is one of my favorites.  Labor law is intended to protect workers from specific gravity related risks, not from those risks which are generally present at all construction sites. 

Labor Law § 241(6) (JAE)

The Fourth Department affirmed the trial court’s decision to dismiss this claim because regulation 2.1(a)(1) did not apply to the facts of this case because the drywall was in use rather in storage, and it did not constitute a “material pile” with the meaning of the regulation.  The court also held the trial court properly determined that regulation 6.1 merely sets forth the requirements for material hoisting equipment and is thus similarly inapplicable.

 

Martinez v Bauer
October 14, 2014
Appellate Division, First Department

Plaintiff Roger Martinez allegedly was injured while delivering a custom made desk/hutch to defendants Yitzcho and Shoshana Abowitz’s apartment when the rope hoisting a piece of furniture broke, causing it to fall on Martinez.  The trial court granted defendants’ motions for summary judgment dismissing the Labor Law §§ 240(1) and 241(6).

Labor Law § 240(1) (DRA)

The First Department held defendants’ deposition testimony showing that the furniture unit was freestanding and not secured to the wall in any way established prima facie that Martinez was not engaged in “altering” of a building under the statute.  Martinez’s testimony showed at most that the unit was to be anchored to the wall to prevent it from falling.  The court determined that even if true, such evidence would not result in a significant physical change to the configuration or composition of the building. 

PRACTICE POINT: Logic once again rears its ugly head.  There is no potential reading of the labor law which would support this claim.  The day that a court supports a labor law claim where furniture is being delivered, and falls on the delivery person, is the day I think about a new line of work.  I am aware that many of you have already suggested that I consider that alternative.

Labor Law § 241(6) (JAE)

The First Department affirmed dismissal of the § 241(6) claim because Martinez’s accident did not occur in connection with construction, demolition, or excavation work.

Perez v Hudson Design Architecture & Constr. Mgt., PLLC
October 15, 2014
Appellate Division, Second Department

In this case with no facts, the trial court granted defendant Hudson Design’s motion for summary judgment dismissing Perez’s complaint for violations Labor Law §§ 240(1) and 241(6).

Labor Law § 240(1) (DRA)

The Second Department held that Hudson Design established prima facie entitlement to judgment as a matter of law dismissing this claim by demonstrating that it did not have supervisory control and authority over the activity which brought about Perez’s injuries.  Thus, the trial court properly dismissed this claim.

PRACTICE POINT:  Who needs fact to figure out what the court is doing.  Here the third party defendant was certainly moving to have the labor law claim dismissed as to them as they were not an appropriate defendant.  To be an appropriate defendant as a contractor the defendant must either have the authority or actually exercise supervision, direction of control over the work being done by the plaintiff.  Here the court found none and thus dismissed as to the third party  defendant as they were not a valid labor law defendant.

Labor Law § 241(6) (JAE)

The Second Department also held that Hudson Design established prima facie entitlement to judgment as a matter of law dismissing this claim by demonstrating that the alleged violation of 12 NYCRR § 23-1.21(e)(3) was not a proximate cause of the accident.  Thus, the trial court properly dismissed this claim as well.

 

Ginter v Flushing Terrace, LLC
October 15, 2014
Appellate Division, Second Department

Plaintiff Janusz Ginter allegedly was injured when an object fell from one of the upper floors of a building under construction.  At the time of his accident, he was walking in an alleyway on the ground level of the project to shut off a water connection.  He filed this action alleging common law negligence, and violations of Labor Law §§ 240(1) and 241(6).

Defendant building owner Flushing Terrace (“Flushing”), and the general contractor, Criterion Development Group (“Criterion”), filed cross-claims against the concrete subcontractor, M & V Concrete Contracting Corp. (“M&V”), filed a third-party action against Ginter’s employer, S & J Industrial Corp. (“S&J”), and filed a third-party action against the masonry subcontractor, Teddy Bosko Builders (“Bosko”).

The court granted S&J, M&V, and Bosko separate motions for summary judgment dismissing the complaint, denied Ginter’s cross-motion for summary judgment on the issue of liability, and denied Flushing and Criterion’s motion to dismiss 6he Labor Law §§ 240(1) and 241(6) claims.

Labor Law § 240(1) (DRA)

The Second Department affirmed denial of Flushing and Criterion’s motion to dismiss this claim because they failed to eliminate all triable issues of fact as to whether the object that struck Ginter was an object that was “being hoisted or secured”, or required securing for the purposes of the undertaking pursuant to the statute.

PRACTICE POINT:  Remember that the burden for Summary Judgment is on the moving party and thus it is not enough to establish that the plaintiff can’t prove the object which struck him was being hoisted or required securing but rather the burden is on the moving party to establish that it was not such an object.  That said at the time of trial the burden shifts and the burden is on the plaintiff to establish that the object was in fact being hoisted or did require securing. 

Labor Law § 241(6) (JAE)

The Second Department affirmed denial of Flushing and Criterion’s motion to dismiss this claim because they failed to establish prima facie that the alleyway where the accident occurred wasnot “normally exposed to falling material or objects,” and that 12 NYCRR § 23-1.7(a) was thus inapplicable to the facts of this case.  Further, the court held Flushing and Criterion failed to eliminate all triable issues regarding the alleged violation of regulation § 23-2.1(a)(2), which provides that “[m]aterial and equipment shall not be placed or stored so close to any edge of a floor, platform or scaffold as to endanger any person beneath such edge”

However, the court reversed the trial court’s decision insofar as there was not a triable issue of fact regarding regulations § 23-2.1(a)(1) and (b) as the accident did not involve the “obstruction of a passageway, walkway, stairway, or other thoroughfare by a material pile” and thus, 2.1(a)(1) was inapplicable.  Further, the court held 2.1(b) does not set forth a sufficiently specific command to support a claim under § 241(6).

Indemnity Issues in Labor Law (SEP)

With respect to the contractual claims, the Appellate Court ruled that neither S&J, nor M&V, met their burden of establishing they had procured insurance for Flushing.  Not to be outdone, the Court also denied Flushing’s motion for summary judgment against S&J and M&V where, as here, it failed to establish a contractual obligation for either party to procure insurance.  
Finally, all motions for common law and/or contractual indemnification were denied where, as here, there remained questions of fact as the negligence of all implicated defendants and third-party defendants.  This included a finding that a question of fact existed as to whether plaintiff’s failure to wear his hard hat could have been imputed to S&J, as his employer.
Harkin v County of Nassau
October 22, 2014
Appellate Division, Second Department

Plaintiff Matthew Harkin was a dock builder employed by nonparty Newborn Construction, and allegedly was injured while working on a defective floating work platform at a marina owned by defendant County of Nassau.  Harkin filed this action alleging common-law negligence, and violations of Labor Law §§ 200, 240(1), and 241(6).  The trial court granted the County’s motion for summary judgment dismissing the Complaint.

Labor Law § 240(1) (DRA)

The Second Department held Harkin was engaged in the type of activity protected under the statute because he was performing work at an elevation-related risk that exposed him to gravity-related hazards.  The court rejected the County’s argument that Harkin only fell part of the way through the floating work platform, and not all the way into the water.  

PRACTICE POINT:  It is not necessary for the plaintiff to fall all the way to the ground (or here to the water) for the case to be appropriate for the exceptional protections of labor law.  In fact the plaintiff need not fall at all, there are several cases where the plaintiff is injured, usually a shoulder injury, where a ladder shifts causing the plaintiff to lose his balance, and grab onto a pipe of other object and does not fall at all where the courts have granted Summary Judgment on 240(1). 

Labor Law § 241(6) (JAE)

The Second Department reversed the trial court’s decision to dismiss the § 241(6) claim because 12 NYCRR § 23-5.1(e) sets forth specific, rather than general, safety standards, and is thus sufficiently specific to support this claim.  Additionally, the County failed to make a prima facie showing that the regulation did not apply to the facts, or that the alleged violation was not a proximate cause of Harkin’s injuries.  

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

The Second Department held the trial court erred in granting those branches of the defendant's motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims because defendant failed to eliminate triable issues of fact as to whether it owned the allegedly defective floating work platform which caused Harkin’s injuries.  Since a premises condition is at issue, if defendant owned the floating work platform, it would be absolved from liability for common-law negligence and under Labor Law § 200 only if it was shown that it neither created the alleged defect nor had actual or constructive notice of the alleged defect.  Here, the Court held there is a triable issue of fact as to whether defendant had constructive notice of the alleged defect.

Rodriguez v Trades Construction Services Corp.
October 22, 2014
Appellate Division, Second Department

Plaintiff Thomas Rodriguez was a plumber working on a residential construction project owned by defendant/third-party defendant Opal.  Rodriguez’s employer, third-party defendant Design Plumbing, was hired by defendant general contractor, Trades Construction, to install a private water main and to connect it to the public water main owned by defendant/third-party plaintiff City of New York. 

Rodriguez was allegedly injured when the side of the trench he was working in collapsed.  He filed this common-law negligence, and Labor Law §§ 200 and 241(6) action.  The trial court granted summary judgment for defendants and third-party defendants dismissing the § 200 and common-law negligence claims, and the § 2410(6) claim predicated on 12 NYCRR § 23-4.2.

Labor Law § 241(6) (JAE)

The Second Department reversed the trial court’s decision to dismiss the § 241(6) claim because Opal and the City failed to meet their prima facie burden.  The trial court erred in determining that the trench in which Rodriguez was injured was not more than five feet deep, and thus § 23-4.2 was inapplicable because the evidence submitted in support of the motions included contradictory deposition testimony from Rodriguez and other eyewitnesses as to the depth of the trench.  There were also contradictions as to the precise location of the accident and whether it occurred on property owned by Opal or the City.

Labor Law § 200 and Common-Law Negligence (VCP)
The Second Department held that defendants, Opal and the City each established they did not have the authority to supervise or control the performance of Rodriguez’s work.  Although property owners often have a general authority to oversee the progress of the work, mere general supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability under Labor Law § 200 or common-law negligence.

Passantino v Made Realty Corp.
October 22, 2014
Appellate Division, Second Department

Plaintiff Joseph Passantino (“Plaintiff”) was working inside an area on defendant’s property that was covered with sand and gravel.  Plaintiff was holding the bottom of an unsecured extension ladder while his coworker stood on it to install cable.  Plaintiff reached for some cable and let go of the ladder, which started to “kick out” and began to fall.  Plaintiff then reached out to stop the ladder and coworker from falling, allegedly causing him to slip on sand on gravel and tear a tendon in his arm. 

The trial court granted Plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim, and denied defendant’s cross-motion to dismiss the §§ 240(1) and 241(6) claim predicated on 12 NYCRR § 23-1.7(d) and (e)(2).

Labor Law § 240(1) (DRA)

The Second Department, citing Runner, affirmed the trial court’s decision that the harm to Plaintiff was “the direct consequence of the application of the force of gravity” to the ladder because Plaintiff established prima facie entitlement to judgment as a matter of law by demonstrating that defendant failed to provide Plaintiff with a safety device, and that this violation was a proximate cause of his injuries.

PRACTICE POINT:  It appears to me that the court has moved from the ridiculous to the sublime.  I do not understand how this could be a labor law case.  In the Runner case the court was faced with a falling object situation, here there is not falling object, or falling worker for that matter.  If the injured party was the worker actually on the ladder I might have reached a different conclusion but here what safety device did the court want provided, it seems to me that the court has, on many occasions with a shifting ladder, pointed out that there was not a fellow worker provided to hold the ladder.  Here the safety device appears to be the plaintiff himself, and he abandoned his post, holding the ladder, and was himself injured.  Please, if this decision makes sense to any of you give me a call and explain it to me.  Read the actual decision, please, and call or email me with your take on this one.

Labor Law § 241(6) (JAE)
The Second Department reversed the trial court decision to deny defendant’s cross-motion to dismiss the § 241(6) claim predicated on 12 NYCRR § 23-1.7(d) (Slipping hazards) and (e)(2) (Tripping and other hazards in working areas) because defendant demonstrated, prima facie, that said regulations were inapplicable here as Plaintiff did not trip and was not injured in an area constituting a floor, passageway, walkway, scaffold, platform or other elevated working surface.  Thus, the Second Department dismissed Plaintiff’s § 241(6) cause of action.

 

Ortman v Logsdon
October 23, 2014
Appellate Division, Third Department

Defendants owned a 65-acre parcel of farm land and operate, among other things, a horse-boarding business.  They contracted with Ralph Colvin to construct a pole barn on the property that was to be used for the training and exercising of horses and storage.  Colvin employed plaintiff Jerry Ortman to assist with the project.  Ortman and others were installing wood purlins across the rafters on the pole barn when Ortman sustained injuries when one of the purlins near the peak of the roof broke (allegedly due to a knot in the wood), causing him to fall 30 feet.  The trial court denied Ortman’s motion for partial summary judgment on the issue of liability as to his Labor Law § 240(1) claim.

Labor Law § 240(1) (DRA)

The Third Department held there were questions of fact as to how the accident occurred because both Ortman and Colvin admitted that they initially advised medical personnel that Ortman was injured when he fell from a hay mound or hay loft – purportedly in an effort to have Colvin’s workers’ comp. insurance cover the injuries.  However, documents in the record indicated that Ortman fell from either a hay mound, a hay loft, a ladder or a barn from a height ranging from 15 to 35 feet.  Given the divergent accounts, the Third Department declined to award summary judgment because if the accident did not take place inside the barn, then the alleged unavailability of safety devices would be irrelevant.

Although defendants each testified that they did not personally provide Ortman with any safety equipment, Ortman, Colvin and Colvin’s son all agreed that there was at least one extension ladder at the work site on the day in question, and Ortman acknowledged he used this ladder – at least initially – while installing the purlins.  Thus, the Third Department held that where, as here, “an enumerated safety device has been furnished, whether such device afforded proper protection usually is a question of fact.”  Here, because the record contains conflicting testimony as to whether the ladder was capable of reaching the peak of the roof on the pole farm, and whether it could be used to install the purlins resulted in issues of fact as to whether the ladder Ortman used to perform his elevation-related work afforded him proper protection under the statute.

PRACTICE POINT:  The importance of obtaining all possible descriptions of how the accident happened is made clear to us once again where, as here, there are conflicting descriptions of the accident and at least one of the descriptions involves a manner of injury which is not covered under the labor law.  We always check the hospital admission paperwork, the ambulance report, medical reports, accident reports from all contractors on the site and as many statements from witnesses as possible checking that all descriptions are the same.  Here it appears that there were conflicting descriptions of how the accident occurred and some of the descriptions did not have the plaintiff involved in a protected activity.

 

Figueroa v HLM Electric, Ltd.
October 29, 2014
Appellate Division, Second Department

Plaintiff Fredy Figueroa was installing sprinkler systems at a residential construction site.  The homeowners hired defendants IG to design the project and HLM as the electrical contractor.  Figueroa’s employer, PI, was hired to dig trenches for the electrical writing and irrigation installation.  Figueroa was allegedly injured while excavating a trench in the backyard when a stone retaining wall collapsed on his left ankle and foot, resulting in serious injuries.  He filed this action alleging common-law negligence, and violations of Labor Law §§ 200, 240, and 241(6).

The jury found IG at fault in the happening of Figueroa’s accident and thus liable for the §§ 200, 241(6), and common-law negligence claims.  The jury also found HLM not negligent.  The jury awarded damages in amount of $1 million for past pain and suffering, $1,280,000 for future pain and suffering, and $260,000 for future medical expenses. 

The trial court denied IG’s motion pursuant to CPLR § 4404(a) to set aside the verdict as against them and for judgment as a matter of law, or, in the alternative, to set aside the verdict as contrary to the weight of the evidence and for a new trial, or, in the alternative, to set aside that portion of the jury verdict that awarded damages for future medical expenses as contrary to the weight of the evidence or excessive.

Labor Law § 241(6) (JAE)

“A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence.”  Thus, the Second Department held there was enough evidence to show that IG, as the supervisor of the project, was liable under § 241(6) because it violated 12 NYCRR § 23-1.4(b)(13) by failing to provide reasonable adequate protection to Figueroa when the wall near the evacuation project was not properly supported and collapsed.

However, the Second Department modified the trial court’s judgment, holding the future medical expenses awarded to Figueroa would be removed and a new trial ordered on that issue, unless Martinez agreed to a lower award. 

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

The Second Department also affirmed the trial court’s judgment that there was sufficient information to find that IG was the general contractor, and thus had the authority to supervise or control the work being performed, including that done by HLM and PI.  As IG had the authority to supervise or control the performance and manner of work even where they did not exercise supervisory authority, they are liable under § 200 and common-law negligence.  Further, the court held there was sufficient proof to show IG had notice of a dangerous condition because it did not update the plans that it created for the project before the plans were used in construction. IG was found responsible for the overall coordination and sequencing of events at the construction site, and was also present at the worksite and discussed the area in which Figueroa would later injury himself.

 

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

Regulation § 23–9.8 pertaining to forklift safety, does not contain a provision requiring that a person be stationed behind the vehicle when backing up and therefore, was held inapplicable to an accident in which a “rough terrain” forklift struck the plaintiff while backing up (Fitgerald v New York City School Constr. Authority, 18 AD3d 807 [2d Dept 2005]).  Regulation § 23–9.8 was held inapplicable where plaintiff slipped and fell on a stack of pipes (Basile v ICF Kaiser Engineers Corp., supra).

Regulation § 23–9.8(b) requiring that no lift or fork truck be loaded beyond its capacity rating, held inapplicable to accident in which forks on forklift truck pinned worker’s left foot against stacked steel (Fisher v WNY Bus Parts, Inc., supra).     

Regulation § 23–9.8(c) requiring that the load-elevating mechanism of lift trucks “shall be capable of being locked at any elevation,” held inapplicable to plaintiff injured while using owner’s forklift to work on a telephone wire at the owner’s warehouse because there were available methods for locking the lift at any elevation, even if those methods could have been more user-friendly (Guodace v AP Wagner, Inc., supra).  Regulation § 23–9.8(c) was held inapplicable where plaintiff attributed accident to factors unrelated to braking mechanism (Hricus v Aurora Contractors, Inc., 63 AD3d 1004 [2d Dept 2009]).

Regulation § 23–9.8(e) providing that “[n]o lift or fork truck shall be used on any surface that is so uneven as to make upsetting likely,” is sufficiently specific to support a Labor Law § 241(6) claim (Oakes v Wal-Mart Real Estate Business Trust, 99 AD3d 31 [3d Dept 2012]).  Regulation § 23–9.8(e) was held inapplicable to accident in which forks on forklift truck pinned worker’s left foot against stacked steel (Fisher v WNY Bus Parts, Inc., supra).     

Regulation § 23–9.8(k) concerning standing or riding on forks of a moving fork lift truck, held inapplicable to worker’s fatal accident while performing electrical work because regulation “lacks the specificity required to support a cause of action under Labor Law § 241(6)” (Ramcharan v Beach 20th Realty, LLC, 94 AD3d 964 [2d Dept 2012]).

Regulation § 23–9.8(l) concerning warning devices, provides that “[e]very prower-operated fork lift truck shall be equipped with a horn, whistle, gong or similar device which can be actuated by the operator” and “[s]uch device shall be clearly audible above the normal noise level in the work area,” was held inapplicable when a payloader ran over plaintiff’s feet (Robinson v County of Nassau, supra).

Regulation § 239.11(d) pertaining to mixing machines and requiring that flywheels and power transmission mechanisms be kept covered and guarded against accidental conduct, was held inapplicable where plaintiff injured using cement pump because court determined that cement pump does not function as a mixing machine but rather as a pump to move concrete from a lower level to a higher level (Shields v First Ave. Builders, LLC, 972 NYS2d 146 [Sup Ct, New York County 2013]).   

 

Judge Stein Labor Law cases while in the Third department
12/24/2008      Snyder v Gnall
Appellate Division, Third Department
Plaintiff hired by defendants to construct a garage at their home located in the Village of Lake Placid.  Plaintiff fell from a scaffold during his work.  The trial court granted defendants’ motion to dismiss the complaint, and denied plaintiff’s cross-motion for summary judgment.  Plaintiffs argued that defendant Gnall actively supervised the construction of the garage and exercised such a degree of control over plaintiff’s work that the homeowner’s exemption should not apply by pointing to the fact that defendant not only identified himself on the building permit application as the general contractor, but also personally arranged for the building inspector’s visit to inspect the construction to insure there was compliance with the conditions contained in the permit. 
The Third Department held that while defendant was undoubtedly involved in many aspects of this project, the reality is that his participation was never so significant as to support the conclusion that the directed or supervised plaintiff’s work.  Further, the materials used in the construction were ordered by defendant pursuant to descriptions provided by plaintiff, and they were purchased through an account that plaintiff had established in defendant’s name at a local supply store.  Also, while it is undisputed that defendant hired the subcontractors and laborers employed on this project, he did so only after they had been identified by plaintiff and were retained pursuant to plaintiff’s recommendation. As for defendant’s personal participation in the project, it involved, at best, menial labor, and did not constitute defendant’s supervision or control over any phase of the actual construction of the garage.  Thus, the court affirmed the trial court’s decision that the homeowner’s exemption applied to the facts of this case.
With respect to the § 200 claim, the court held it was undisputed that plaintiff designed and constructed the scaffold used in this project and that he fell from it at a time when defendant was not present at the work site.  Assuming arguendo defendant helped plaintiff build the scaffold and knew that it was, as constructed, dangerous, the court would still dismiss the claim because the hazardous conditions which brought about the accident were caused by plaintiff’s own work methods at a time when defendant exercised “no supervisory control.”  Hon. Stein concurred in this decision.
4/9/2009          Dalaba v City of Schenectady
Appellate Division, Third Department
Plaintiff sustained injuries when he fell about 30 feet through an opening in a roof to the ground while installing roof insulation and sheet metal on a new building under construction.  The trial court granted plaintiff’s motion on his Labor Law § 240(1) claim. 
The Third Department unanimously affirmed as the record establishes that defendant property failed to “give proper protection” since location where plaintiff fell remained unprotected and no safety devices were provided, and that the violation was the proximate cause of plaintiff’s injuries.  Hon. Stein concurred in the decision to reject the property owner’s argument that compliance with OSHA regulations can defeat plaintiff’s prima facie showing of liability on his § 240(1) claim because the statute contains its own specific safety measures.  Hon. Stein concurred in this decision.

7/23/2009        Yost v Quatararo
Appellate Division, Third Department
Plaintiff was hired to replace the roof of a motel, and fell after a second floor balcony railing broke while he was securing a tarp over the roof.  To reach the tarp, plaintiff had to lean against and over the railing.  The trial court granted plaintiff’s motion for partial summary judgment on his Labor Law § 240(1). 
The Third Department held the balcony on which worker stood in order to reach hotel roof to attach tarp did not constitute functional equivalent of scaffold or other safety device within meaning of the statute because the balcony was permanent appurtenance of building.  However, the court concluded that plaintiff demonstrated that he was exposed to “the exceptionally dangerous conditions posed by elevation differentials at work sites” which the statute was designed to address because the record reveals that plaintiff was required to lean against and over the balcony railing to reach the tarp, with nothing but that railing to protect him from falling into the open space beyond and to the parking lot below.  Hon. Stein concurred in this decision.

12/10/2009      Intelisano v Sam Greco Const., Inc.
Appellate Division, Third Department
Plaintiff was employed by a roofing subcontractor working assigned to assist in unloading bundles of insulation from a flatbed trailer, requiring him to get on top of the bundles to attach a strap around them to a crane.  Because no ladder or scaffold was provided, to get on top of the bundles, which were 10 feet high and stacked on the flatbed which was four feet above the ground, plaintiff climbed up on the spare tire attached between the trailer and truck cab.  Once atop the spare tire, he grabbed the top of the shrink-wrapped bundle of insulation with both hands, pulled himself up as if doing a chin-up, and swung his leg to the side to get his entire body on top of the bundles. As he swung his leg to the side, his hands slipped, causing him to fall to the ground and break his heel.
The trial court granted plaintiff’s cross-motion on the issue of liability under his Labor Law § 240(1) claim, and denied defendants’ regarding the §§ 240(1) and 241(6) claims, but granted defendants’ motions dismissing the common-law negligence and § 200 claims.
The Third Department affirmed the trial court’s decision on the § 240(1) because plaintiff was hanging from the 10-foot high stack of insulation bundles, with his hands 14 feet above the ground, and was trying to swing his body to that height when he fell.  Thus, the court held these circumstances constitute an elevation-related risk greater than merely falling from the bed of a trailer.  Further, no safety devices were provided to assist plaintiff in reaching the insulation or prevent him from falling from a height, and such devices could have prevented the accident; thus, defendants violated the statute and that the violation constituted a proximate cause of his injuries.  In addition, 23-1.7(f) mandates specific conduct and may have been violated by defendants.  Thus, the court held the trial court properly denied defendants’ motion to dismiss the § 241(6) claim.  Hon. Stein concurred in this decision.

5/6/2010          Cook v Orchard Park Estates, Inc.
Appellate Division, Third Department
Plaintiff, an employee of third-party defendant John Mauro, Co., allegedly was injured when he slipped and fell at the construction site of a shopping plaza.  Plaintiff testified at his deposition that while attempting to retrieve a mortar pan at approximately 8 A.M. on the morning of the accident, he slipped on plastic covered by approximately six inches of freshly fallen snow. Plaintiff indicated it stopped snowing approximately one hour prior to his accident, and no plowing or shoveling had been performed at the construction site.
Mauro was hired by the general contractor, Matzen, to perform exterior masonry work on property owned by Orchard Park Estates and leased by Scott Ventures.  As relevant here, Scott Ventures’ contract with Matzen provided that Scott Ventures was “responsible for all snow removal on-site” and that removal was to be “complete[d] by [6:00 A.M.] each day—including weekends.”  The trial court denied Ventures’ motions to dismiss plaintiff’s complaint and for indemnification and contribution from Matzen, denied Matzen’s motion for summary judgment on its contractual indemnification claim against Mauro and to dismiss plaintiff’s complaint, and denied Mauro’s motion to dismiss the third-party complaint and all cross-claims. 

The Third Department held there are triable issues of fact as to whether plaintiff’s injuries were caused by a dangerous or defective condition existing on the property created by the manner in which either Matzen or Mauro performed its work.  The court further found questions of fact whether Ventures created or had notice of the dangerous condition, or whether either Mauro or Matzen had notice and the authority to control the work activity.  Given the existence of these issues, the Court affirmed the trial court’s denial of conditional indemnification or to dismiss the third-party complaint. 
However, the Third Department held the § 241(6) claim predicated on 12 NYCRR § 23-1.7(d) and (e) should have been dismissed because those regulations are inapplicable where plaintiff fell when he slipped on snow-covered plastic, which is neither a tripping hazard nor a walkway. Hon. Stein concurred in this decision.

5/27/2010        Rought v Price Chopper Operating Co., Inc.
Appellate Division, Third Department
Plaintiff was employed as an electrician by Demco, a subcontractor for defendant Konover, the general contractor, at a construction site owned by defendants Price Chopper and Golub (collectively “owners”).  Demco’s supervisor jerry-rigged a system to move heavy commercial wire into place by using a forklift as a power source to pull a rope over two pulleys and through a conduit mounted on the walls of the electrical room of the building under construction.  The conduit included turns as it ran up to the ceiling, across the ceiling and then down on the other side of the room. The wires were initially pulled by two men from a large spool on the floor up to the electrical room more than 10 feet above.  A bundle of wrapped wires was then lifted or pushed by plaintiff into the beginning of the conduit, which initially ran four feet straight up to the ceiling.  
The rope pulled up on the wires from inside the conduit as plaintiff stood under the conduit and pushed the bundle of wires up.  When the wires reached the first turn in the conduit above plaintiff’s head, the rope broke, resulting in the bundle of wires recoiling and falling back onto plaintiff, allegedly causing him to twist, fall and sustain injuries.  He commenced this common-law negligence and Labor Law §§ 200, 240(1) and § 241(6) action.  The trial court partially granted defendants motion to dismiss the § 240(1) claim, but denied it as to the other causes of action.  
 The Third Department held the allegations regarding the condition of the rope – which had broken several times prior to the accident and was repaired with knots – are adequate to implicate a regulation that sets forth sufficiently specific to give rise to a valid § 241(6) claim.  Plaintiff’s bill of particulars alleged the rope snapped under “the heavy weight and tension” and the bundled wires struck him with “great weight and force.”  Justice Stein noted while friction undoubtedly played a role in the rope’s failure, the records reveals allegations that the danger to which plaintiff was exposed also had a gravity-related component.  Further, defendants did not challenge plaintiff’s characterization of the weight of the bundle of wires, nor established as a matter of law that gravity was not a substantial contributing cause of the wires falling four feet and striking plaintiff.
The Third Department further noted the location of the wires directly above plaintiff together with the configuration of the pulley system and the initial vertical pull of four feet, constituted adequate assertions the wires were being hoisted when the accident occurred.  Thus, Hon. Stein held that since the forklift was being used as a substitute power source for hoisting and pulling materials with a rope, the general exception for forklifts does not to the conclusion that the hoisting regulations are totally inapplicable, as urged by defendants.
With respect to the common-law negligence and § 200 claims, the court held there was evidence that Konover provided the forklift and pulleys being used by Demco, and that Konover’s project superintendent directed Demco’s workers to replace a barricade and reposition the pulleys during the operation.  Thus, a question of fact existed as to whether Konover exercised the requisite supervisory control over plaintiff’s work.  As for the owners, there was no evidence they exercised any supervision or control over the work activity that brought about plaintiff’s injury and thus, dismissal of those claims against the owner must be dismissed.  Hon. Stein concurred in this decision.

10/21/2010      Silvia v Bow Tie Partners, LLC
Appellate Division, Third Department
­­­­­Plaintiff was injured when a plank on which he was standing as part of a makeshift scaffold broke beneath him, causing him to fall several feet.  In support of plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim, he submitted his deposition testimony and the affidavit of a professional engineer.  Plaintiff testified that, in connection with his work as a taper for third-party defendant D&B at the construction site in question, his supervisor provided him with two ladders and a wooden plank and instructed him on how to build a scaffold, to be used in the stairwell area in which he had been assigned to work. The area of the wall upon which he was working was 10 feet above the floor and the plank was four to six feet above the floor.  D&B’s safety plan called for either a harness or other tie-offs to be used when work was to be done at a height of more than four feet.  On the day of the accident, plaintiff had assembled the ladders and plank and had worked on this makeshift scaffold until taking a break.  Before taking his break, plaintiff deconstructed the scaffold and, when the break was over, he reconstructed it, using the two ladders and wooden plank that were in the location where he had left the materials.  When he walked out on the plank, he heard a pop and the plank broke beneath him, causing him to fall to the stairs over which he was working.
Plaintiff testified that, after his fall, he learned that a coworker had removed the plank that he had used in the morning and placed a broken plank near plaintiff’s work area, which plaintiff had used unknowingly when he reconstructed the scaffold after his break.  Plaintiffs’ expert opined that D&B failed to provide “any safety devices” to plaintiff and that what was provided was not a proper safety device.  Specifically, plaintiffs argued the makeshift scaffolding did not constitute a safety device enumerated in Labor Law § b240(1) because the materials provided to construct the makeshift scaffolding were inadequate and that no other safety devices—as harnesses and tie-offs—were provided. 
In opposition, defendants and D&B offer testimony of a carpenter employee of D&B who observed plaintiff with the plank that ultimately broke and told plaintiff not to use it because it was cracked.  He further testified that plaintiff replied that he did not care.  There was testimony that there OSHA compliant planks next to a dumpster just outside a doorway adjacent to the area where plaintiff was working.
The trial court granted plaintiffs’ motion claim.  Hon. Stein reversed, holding that defendants raised questions of fact regarding whether there was a statutory violation and whether plaintiff’s conduct was the sole proximate cause.  Defendants’ submitted the affidavit of a professional engineer who opined that the scaffold planking used here was compliant with applicable regulations and that plaintiff’s injuries were caused by his failure to use a sound plank that was available.  Thus, Justice Stein held that defendants and D&B’s argument that the makeshift scaffolding was an appropriate safety was preserved for review.  There was also testimony that workers were advised in daily briefings of the availability of harnesses and other safety equipment in the gang boxes on site.  Hon. Stein wrote this decision.

3/11/2010        Fallon v Flach Development & Realty, Inc.
Appellate Division, Third Department
Plaintiff, a volunteer firefighter, allegedly was injured when he fell due to apparent collapse of the extension ladder he was ascending while making improvements at the warehouse in which the fire company was temporarily housing vehicles.  The trial court granted defendant warehouse owner’s motion for summary judgment dismissing the complaint.
The Third Department held there was no evidence that defendant contracted for the work at its warehouse or otherwise agreed to compensate plaintiff for his services.  Further, defendant did not required plaintiff to be at the warehouse and did not even know he was there until after the accident.  Thus, the court held plaintiff was not an employee of defendant.  Hon. Stein concurred in this decision.   

12/16/2010      Sereno v Hong Kong Chinese Restaurant
Appellate Division, Third Department
Plaintiff sustained an eye injury while cleaning grease from the exhaust system in a restaurant kitchen.  As plaintiff’s coworker handed plaintiff, who was on the ground, a pressurized bottle containing chemicals, the bottle slipped from plaintiff’s hands and sprayed his eye.  The trial court granted defendants motion for summary judgment under Labor Law § 240(1) claim on the ground that the statute did not apply, and denied plaintiff’s cross-motion on the same issue.
Hon. Stein wrote the decision rejecting plaintiff’s argument that his injuries were attributable to the type of gravity-related risk within the purview of § 240(1) because plaintiff’s testified that when he grabbed the bottle, it slipped out of his hands and, after it hit the floor, the hose connected to the bottle became detached, resulting in its contents coming into contact with his eye.  Hon. Stein held that the bottle was not being lowered when it fell to the ground as it was in plaintiff’s hands.  Thus, there was no elevation differential between the falling object and plaintiff, and no evidence that the bottle fell “because of the absence ... of a safety device of the kind enumerated in the statute.”  Hon. Stein wrote this decision.

4/14/2011        Mueller v PSEG Power New York, Inc.
Appellate Division, Third Department
Plaintiff allegedly was injured when steel slab forms fell against his left while performing concrete work for a contractor on property owned by defendant.  The trial court denied plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim, and granted defendant’s cross-motion to dismiss the §§ 240(1) and 241(6) claims. 
The Third Department held the forms were not being hoisted at the time of the accident since they were placed on the ground, all the workers intended for the forms to remain on the ground, at the same elevation as plaintiff, and were only on the ground because they were accidentally snagged by the clamp on the crane cable, and not in the course of purposeful hoisting or moving.
Although plaintiff argued the cable should not have been detached until the forms were secured against the scrap wood and leaning against the pad, the court held this use of the cable was not for hoisting or elevation-related purposes and thus the failure to keep the cable attached until the forms were stabilized potentially created a general workplace hazard rather than the kind of elevation-related hazard contemplated under the statute.   With respect to the § 241(6) claim predicated on 12 NYCRR § 23-2.2(a), although that regulation is sufficiently specific, the court held it did not apply to the facts here because it only applies during actual concrete work and not when the forms are being stored.  Hon. Stein concurred in this decision.

2/16/2012        Coleman v Crumb Rubber Mfrs.
Appellate Division, Third Department
Defendant’s contractor was installing a permanent floor of metal grates laid on top of I-beams.  A belt guard from machinery in the basement, 10 feet below, protruded through the floor and an area surrounding the belt guard did not have permanent floor yet.  A wooden pallet that plaintiff had covered the hole around the belt guard with earlier in the day had been removed, and he continued to work after failing to find something else to cover the hole with.  While walking from one ladder to another, he stepped into the opening, where his left leg fell through the floor up to his groin; he did not completely fall through the hole.  The trial court denied plaintiff’s motion for summary judgment, and granted partial summary judgment to defendant dismissing Labor Law §§ 200, 240(1), and common-law negligence claims.
The Third Department affirmed dismissal of the § 240(1) claim because the existence of a lower level below the floor where plaintiff was working, without more, did not create an elevation-related risk, nor did plaintiff’s “mere proximity” to the opening in the floor give rise to the statutory protections.
With respect to the § 241(6) predicated on 12 NYCRR § 2301.7(b)(1)(i), which requires “[e]very hazardous opening into which a person may step or fall” to be covered or protected by a safety railing, is sufficiently specific.  Although the court held it did not apply to every gap or opening, defendants failed to meet its burden since the building’s manager did not supply the court with the depth of the opening.
The court reversed the trial court’s decision regarding the common-law negligence and § 200 claims because an injured person’s knowledge of a readily observable dangerous condition doesn’t obviate the duty to keep property in a safe condition.  The readily observable condition obviates the required notice of danger, but not the duty to provide a safe worksite.  Hon. Stein concurred in this decision.

7/19/2012        Oakes v Wal-Mart Real Estate Business Trust
Appellate Division, Third Department
Plaintiff iron worker allegedly was injured after his legs were crushed when an unsecured bar joist that a forklift was carrying shifted sideways approximately two feet and struck one of the vertically positioned trusses, which fell over onto plaintiff and pinned him between two trusses.  The trial court granted dismissed plaintiffs’ Labor Law § 240(1) claim, dismissing the §§ 241(6) and 200 claims against third-party defendant Luck only, and denied Wal-Mart, Mumane, and Luck’s motions to dismiss the common-law negligence claims.
The Third Department affirmed dismissal of the § 240(1) claim because notwithstanding the substantial weight of the truss and the significant force generated as it fell due to the force of gravity, the court held there was no elevation differential present as truss and worker were both at ground level, and they were eight approximately the same height or worker was slightly taller than the truss.  
With respect to the § 241(6) claim predicated upon 12 NYCRR § 239.8(e), the Third Department held plaintiffs sufficiently alleged that defendants “violated a regulation … that sets forth a specific standard of conduct” and affirmed the trial court’s denial of the parties respective motions because there was sharply conflicting testimony whether the ground surface was so rough and uneven as to make upsetting the forklift likely and whether the alleged violation of the regulation proximately caused plaintiff’s injuries.
The Third Department also affirmed the decision to deny dismissing the § 200 and common-law negligence claims against Wal-Mart and Mumane because plaintiffs alleged that both defendants failed to remedy a hazardous condition existing at the work site—the uneven ground, unstable soil and holes—and that the work was performed in a dangerous manner due to the failure to secure the bar joist on the forklift and the truss on the ground, and Luck’s failure to properly prepare the site.  Further, dismissal of the § 200 claim against Luck was affirmed because it had no authority or control over plaintiff’s work, but the court held a question of fact existed as to whether Luck create the dangerous condition on the premises.  Hon. Stein concurred in the decision. 

12/6/2012        Gunderman v Sure Connect Cable Installation, Inc.
Appellate Division, Third Department
Plaintiff, an employee of Sure Connect, fell from a ladder while replacing a television cable as a subcontractor of Time Warner at a residence.   The trial court partially granted Sure Connect’s cross-motion to dismiss the Labor Law §§ 240(1) and 241(6) claims, denied plaintiff’s motion for summary judgment on his § 240(1) claim, and denied Time Warner’s motion on its cross-claims against Sure Connect.  Plaintiff successfully moved to reargue and his prior motion was granted.
The Third Department reiterated the rule that “a utility pole with its attached hardware, cable and support systems constitutes a structure within the meaning of Labor Law § 240(1).”  Thus, the issue was whether plaintiff’s work involved making a significant change to the configuration or composition of a building structure, and the court held that it was unable to make this determination based on the record provided because there was not any meaningful description of the nature or extent of the actual work Plaintiff was scheduled to perform.  Thus, the court held that plaintiff was not entitled to summary judgment on his § 240(1) claim.
With respect to the indemnification cross-claims, the trial court erred in denying Time Warner summary judgment for contractual indemnification against Sure Connect because the indemnity provision at issue required that Time Warner be “directly” rather than vicariously liable, and while Sure Connect was subject to some limited oversight from Time Warner, “general supervisory control” is insufficient to establish the control necessary to impose Labor Law liability.  Hon. Stein concurred in this decision.

2/28/2013        Sanchez v Marticorena
Appellate Division, Third Department
While working on a roof at defendants’ home, decedent’s fell to his death.  The trial court granted defendants’ motion to dismiss the complaint of decedent’s estate based on the homeowner’s exemption under the Labor Law.  Decedent’s estate argued the property was used by defendants purely for commercial purposes. 
As Hon. Stein authored this decision, she affirmed, noting that where, as here, there are dual uses of a home; the availability of the exemption depends upon the site and purpose of the work performed.  Here, defendants established they purchased the home that is unquestionably residential in nature, the roof work was undertaken after water leaked into the attic where one of the defendants slept, and defendants paid for the roof work with their personal funds.  Thus, the burden shifted to plaintiffs, who asserted to the fact that defendants derive a stipend from allowing individuals to reside on their home and claims that the roof work benefitted a commercial enterprise
Hon. Stein held plaintiff failed to raise an issue of fact of the applicability of the exemption.  Defendants became certified to operate a family care home under a program with the Office for People with Developmental Disabilities, and under this program defendants provided a residence to four individuals with disabilities in a family setting and received a monthly stipend for the services provided to the residents.  Thus, Hon. Stein held the homeowners’ exemption applied.

6/27/2013        Bagley v Moffett
Appellate Division, Third Department
Defendants’ utility company advised them that they needed a new electric meter installed onto the side of their house, which they were using as a bed and breakfast.  This required the removal of the current meter, which was on a private utility pole on the Defendants’ property.  Plaintiff was hired to do this work and while performing work near the top of the utility pole, the pole snapped, causing him to fall.  The trial court granted defendants’ motion for summary judgment on the Labor Law §§ 200, 240(1), 241(6) and common law negligence claims.
The Third Department reversed, holding that defendants failed to demonstrate their entitlement to the homeowners’ exemption property owners’ affidavits, although they addressed their intended residential use of the property as a vacation and seasonal home at time of its purchase, were silent as to whether owners continued to use the property as their residence at time of worker’s accident, which occurred after they began operating a bed and breakfast at the premises.  Hon. Stein concurred in this decision.

10/24/2013      Bombard v Pruiksma
Appellate Division, Third Department
Plaintiff allegedly was injured while assisting a homeowner in raising a wall for a single-family residence.  The trial court granted defendant’s motion for summary judgment.  The Third Department held that exemption from liability for workplace safety violations for owners of one and two-family dwellings who contract for but do not direct or control the work applied to defendant homeowners who did not exercise direction or control over the injury-producing work.  Hon. Stein concurred in this decision.

11/27/2013      Jackson v Heitman Funds/191 Colonie LLC
Appellate Division, Third Department
Plaintiff, a roofer, was employed by a contractor hired by defendants to replace a roof on a shopping center.  Plaintiff was injured when the handle of a roll carrier—a device used to dispense roofing material – hit him in the head as he was helping to unroll the membrane.  The accident allegedly occurred when the roll carrier shifted on the slippery roof, causing the membrane roll to drop, thereby forcing the T-handle to rapidly move upward and hit plaintiff in the side of his head.  The trial court denied plaintiff’s motion for summary judgment on liability under Labor Law §§ 240(1) and 241(6), and partially granted defendants’ motion by dismissing the § 240(1) claim and a portion of the § 241(6) claim. 
With respect to the § 240(1) claim, Hon. Stein affirmed the trial court’s finding that plaintiff’s injuries flowed “directly from the force of the falling membrane roll on the T-handle, causing the handle to strike plaintiff.  Even though plaintiff was not directly struck by the  membrane roll that fell, his injuries were the result of his exposure to the risk of gravity while working with heavy materials hoisted above the roof’s surface on which he was standing.  Further, Hon. Stein held that a member roll weighing between 600 and 800 pounds hoisted by the roll carrier to a height of approximately 1 ½ feet off the roof’s surface at the time of the accident constituted a significant elevation differential given its substantial weight and the powerful force it generated when it fell, so as to require a safety device under the statute. 
Although plaintiff asserted that no safety device was provided and that, even if the roll carrier could be considered a safety device, it was inadequate to safely hoist the membrane roll from the roof’s surface.  Plaintiff offered proof that the roll carrier slipped on the icy surface, causing the roll to fall onto the roof’s surface which, in turn, forced the T-handle off the lifter, causing it to rapidly rise and hit plaintiff on the head.  Additionally, plaintiff’s expert opined that “the roll carrier by itself was an inadequate device to maintain the roll in a stationary, stable, elevated position” and, thus, plaintiff should not have used the roll carrier without additional safety devices as listed in the statute .   He also concluded that “plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against the risk of the roll carrier failing to maintain the elevated position of the membrane.”  The court held plaintiff made a prima facie showing that defendants’ failure to provide adequate safety devices proximately caused plaintiff’s injuries.
In opposition, defendants submitted the affidavit of a civil engineer, who had experience with the roll carrier device involved in this accident.  The expert concluded the roll carrier was an adequate safety device and, after inspecting it, determined it did not fail, collapse or slip.  He also stated he was “not aware of any safety device ... that would have prevented this accident.” Considering the conflicting evidence, the court found questions of fact as to whether plaintiff’s injuries were proximately caused by the lack of a safety device of the kind required by the statute to prevent summary judgment on the § 240(1) claim.
With respect to the § 241(6) claim, the court affirmed the trial court’s decision finding questions of fact since plaintiff offered unrefuted evidence that the roof was slippery with patches of black ice and defendants’ expert concluded that the slippery condition was not a cause of the accident based on various tests he conducted.  Further, dismissal of this claim insofar as predicated on 12 NYCRR § 23-1.8(c)(1), pertaining to the provision of protective headgear, was warranted because plaintiff failed to establish that he was exposed to the hazards of a falling object or head bumping against which this regulation was designed to protect.  Hon. Stein wrote this decision.

5/1/2014          Marshall v Glenman Industrial & Commercial Contractor Corp.
Appellate Division, Third Department
Plaintiff fell down stairs after his boot caught on a protruding piece of metal, after which the building superintendent cut off the protruding material.  The protrusion was also sharp enough to cut plaintiff’s boot.  Defendant was the general contractor of the construction project and another Defendant was the company that did the welding and metal work.  The trial court dismissed plaintiff’s common-law negligence and Labor Law §§ 200 and 241(6) causes of action.
The Third Department held a genuine issue of fact existed as to whether a general contractor’s failure to timely discover and remove at tripping hazard was reasonable and adequate under 12 NYCRR § 23-1.7(e)(1).  The court further held that a subcontractor providing welding and metal work did not have any authority or control over a worker of another subcontractor providing tile installation, and thus plaintiff could not bring a common-law negligence or § 200 claim against Model Iron, who did not have any control over plaintiff’s work. 
Moreover, plaintiff failed to provide evidence linking Model Iron to any work whatsoever in the stairwell where the accident occurred. Glenman, as a general contractor did not have a direct hand in the work that produced the protruding metal, nor did plaintiff establish that any Glenman laborer or supervisor had notice of the hazard; the § 200 and negligence claims were properly dismissed.  Hon. Stein concurred in this decision.

Hurwitz & Fine, P.C. is a full-service law firm
providing legal services throughout the State of New York

Labor Law Pointers

Editor
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
[email protected]                                                            [email protected]

            Dan D. Kohane                                                                       Cassandra A. Kazukenus
[email protected]                                                            [email protected]

            Michael F. Perley                                                                  Jennifer A. Ehman
[email protected]                                                           [email protected]

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

 

Hurwitz & Fine, P.C.
424 Main Street
Suite 1300 Liberty Building
Buffalo, New York 14202
Phone:  716.849.8900
Fax:   716.855.0874
www.hurwitzfine.com

In some jurisdictions, newsletters such as this may be considered:
Attorney Advertising.

© 2011-2014 Hurwitz & Fine, P.C., All rights reserved.

Newsletter Sign-up

Fill in the form to register to receive any of our free electronic newsletters: