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Labor Law Pointers - Volume IV, No. 4

From the Editor:

Do you have a situation, we love situations.  Please feel free to call any of us with your situation, any situation, at any time.  Nothing breaks up the day like a call which leaves us scratching our collective heads seeking potential defenses to a quagmire of facts seemingly leading your insured down the road to liability.  That is why we love Labor law cases, the inherent challenge in defending the seemingly indefensible.  Challenge us, we welcome it and in fact thrive on it. 

Some interesting cases for you this month, several focusing on the elements of being a proper defendant as the agent of the owner or contractor, that being the authority to supervise, direct or control the work of the plaintiff.

As much as we love writing about Court of Appeals cases it does not happen every month.  Even rarer is the opportunity to write about a new Court of Appeals Judge, and even better, one from our back yard.  Justice Fahey was just appointed to the Court and we congratulate him on his appointment.  Steve Peiper, a critical member of our labor law team and regular contributor to this newsletter, worked for Justice Fahey as a clerk and has nothing but the highest praise for the Judge, a sentiment echoed by myself and all of us here at Hurwitz & Fine. 

I can’t, however just leave it.  The ability to obtain statistics, or metrics, on just about everything is staggering.  Some are incredibly helpful and some simply create chaos.   I found that there are statics available on every judge in NY which will report on the number of cases appealed for trial court judges, the number affirmed, affirmed as modified and, among other outcomes, reversed.  Judge Fahey, as a trial court judge sitting in Erie County between 1996 and 2006 (he sat in the commercial part for 2006), he had 128 decisions appealed and only 19 reversed (these numbers are only for the years 2002 to 2012).  From 2007 to 2015 as a Justice Fahey’s trial court decisions were reversed 20 times out of 208 decisions.  This is total of 39 reversals out of 336 decisions appealed.  The attached chart shows not only the totals, but the type of case, the attorney who appealed the totals for law firms and an incredible amount of information.  The chart is attached for those of you who are interested, it is quite fascinating.

As an appellate court Judge, sitting in the Fourth Department from 2006 until 2015, Judge Fahey say on 3543 appeals panels and affirmed 2428, affirmed as modified 363, dismissed the appeal on 293 remanded 10 and reversed 417.  Once again this portion of the chart shows what judge was appealed where Judge Fahey was on the panel and separately what type of case it was.  Unfortunately while there are categories for the case type shown, Labor Law is not a category.

What does all this mean, I am not exactly sure, but it is clear to all of us here that Judge Fahey is a welcome addition to the Court of Appeals for his intellect and well-reasoned decisions.

Here is Buffalo we are reveling in the snow which has fallen in copious amounts, I just love getting up at 5:30 to snow blow the driveway only to have the plow come by and cause me to get back out there.  Some around here, we call them non-skiers, have already had enough of the snow and cold weather, a sentiment shared but the majority across the county at this point in what has been a harsh winter for large portion of not only the north east but the entire country.  We hope this finds you safe, warm and happy.  Given the time right now as I look at my watch I actually hope this find you asleep.  I knew it was a mistake to lay down with my son but he asked and what can a father do in that circumstance.  It is the waking up at 2:30 and realizing that you have not done the final edit of the newsletter that gets you moving quickly.

Have a great February, it is, after all, the shortest month so we will be back sooner than at any other time in the year.

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.

 

Bernard v Town of Lysander
January 2, 2015
Appellate Division, Fourth Department

Bernard allegedly was injured when he fell from a collapsing scaffold while working at a construction site owned by defendant.  He and a fellow employee were installing exterior trim boards (Hardie boards) on the side of a newly constructed sewage treatment pump house. To install the Hardie boards, Bernard or his coworker constructed a platform on which to stand by placing one end of a 14-foot-long aluminum scaffold plank into the bucket of a backhoe, and securing the other end with two pieces of wood nailed into the side of the building.  It was undisputed that, other than the pick, defendant did not provide any scaffolding or other safety devices for Bernard to use to install the Hardie boards. While Bernard was standing on the pick, the end of the pick secured by the wooden braces gave way, causing him to fall to the ground. 

He filed this Labor Law § 240(1) action, and moved for partial summary judgment on the issue of liability.  Defendant argued an issue of fact existed as to whether Bernard’s alleged negligence in improperly constructing the scaffold was the sole proximate cause of his injuries.  The trial court denied Bernard’s motion. 

Labor Law § 240(1) (DRA)

The Fourth Department held that “the fact that the scaffold collapsed is sufficient to establish as a matter of law that the scaffold was not so placed … as to give proper protection” as the only safety device provided to Bernard at the worksite was a 14-foot-long pick.  According to the Court, Bernard had to create a “makeshift” scaffold by placing one end of the pick in the shovel of a backhoe and the other end between two pieces of wood he or a coworker nailed into the side of the building.  “The onus was not on [Bernard] to construct an adequate safety device, using assorted materials on site that were not themselves adequate safety devices but which may have been used to construct a safety device.”

The Court further rejected defendant’s argument that there was an issue of fact whether Bernard’s alleged negligence in securing the wooden braces with only two nails or in otherwise improperly erecting that scaffold was the sole proximate cause because “plaintiff’s actions with respect to the manner in which he constructed the “makeshift” scaffold “raise, at most, an issue of comparative negligence, which is not an available defense under § 240(1).”

PRACTICE POINT:  Some cases have a complex set of facts that create that “SITUATION” we crave so much.  That brain twister of a case that requires research, thought and ingenuity to look for and locate that most elusive of all prey, the “sole proximate cause defense”.  This case, unfortunately for the defendant, has none of those options available to the defendant.  Here the plaintiff was provided with no adequate safety devices.  You will recall, likely in your sleep I have repeated them so often, that there are four necessary elements to a sole proximate cause defense.  First, there needs to be an appropriate safety device.  Second that safety device needs to be available to the plaintiff.  Third, the plaintiff must have been instructed to use that safety device or have the knowledge that he was expected to use that safety device.  Fourth the plaintiff must, for no good reason, fail to use or misuse that available, appropriate safety device which he was instructed to use or knew he was expected to use.  Here, there is no safety device provided to the plaintiff and thus, Summary Judgment was awarded o 240(1).

Hall v Integrity Real Estate Props., Inc.
January 2, 2015
Appellate Division, Fourth Department

Plaintiff commenced this Labor Law and common-law negligence action after allegedly sustaining injuries when he fell from a ladder.  The trial court permitted plaintiff's former attorneys to withdraw and, upon motions of defendants, ordered plaintiff to appear for a deposition.  Plaintiff did not appear for the court-ordered deposition.  Defendants moved separately to dismiss the complaint on the ground that plaintiff failed to appear for the court-ordered deposition, and plaintiff, represented by new counsel, cross-moved to amend the caption to reflect that his name.

In support of motions, defendants established that plaintiff commenced this action under the name Mitchell T. Hall and that he signed various court documents under that name.  During discovery, the former attorneys for plaintiff notified the court and counsel that plaintiff was incarcerated on unspecified charges arising from the use of that name.  He later submitted an affidavit stating that his real name is Danny Hall, but he had been using his brother’s name. 

The trial court granted the motions of defendants seeking to dismiss the complaint on the ground that plaintiff failed to appear for a deposition ordered by the trial court, and denied his cross-motion seeking to amend the caption.

Labor Law § 240(1) (DRA)

The Fourth Department affirmed the trial court’s determination that the failure to comply with the discovery order was “willful, contumacious or in bad faith” and that plaintiff had committed a fraud on the court that was “so serious that it undermines … the integrity of the proceeding.”  Additionally, plaintiff failed to provide a reasonable excuse for his failure to appear.

The Court also affirmed the trial court’s decision to deny plaintiff’s cross-motion to amend the complaint to state his purported legal name because plaintiff’s affidavit “was insufficient to establish that there was merely a misnomer in the description of the party requiring amendment.”

PRACTICE POINT:  The fact that this was a labor Law case does not in way determine the outcome or shape the argument, but the lesson is still important.  It certainly appears that the plaintiff’s use of his brother’s name was reason for the dismissal and the failure to appear simply an ancillary byproduct of his incarceration for that very offence.  Lying to the court is never a good idea, and here the plaintiff paid a price for it with dismissal of his case, and some time in jail.

Neville v Chautauqua Lake Cent. School Dist.
January 2, 2015
Appellate Division, Fourth Department

Neville was allegedly injured when his neck and face were splashed by hot tar while placing a 100-pound “keg” of asphalt into the “kettle.”  At the time of the incident, Neville was wearing a plastic face mask connected to a hard hat, two long-sleeved cotton sweatshirts, two pairs of gloves, long pants and work boots.

The trial court denied defendants School District and LPCiminelli’s motions for summary judgment dismissing Neville’s alleged violation of Labor Law § 241(6) predicated upon Industrial Code regulations §§ 23-1.7(h) and 1.8(c)(4).

Labor Law § 241(6) (JAE)

On appeal, the Fourth Department held that the trial court erred in determining the affidavit of plaintiffs' expert was sufficient to raise an issue of fact.  He stated in nothing but conclusory terms, without evidence of a deviation from industry standards, that the safety equipment and apparel were not appropriate because the face mask was not long enough to prevent hot tar from splashing underneath it and plaintiff was not provided with a fire-proof hood to protect his neck and head.   Nevertheless, the Fourth Department affirmed the trial court’s decision based on the deposition testimony of two coworkers. One coworker explained that he had also worked for other companies and had seen longer face masks used as protection for the task in which plaintiff was engaged. The other coworker stated that he ordered safety equipment for plaintiff's employer and that he had ordered "hoodies" for employees to wear to cover the head and neck.  It was undisputed that the face mask provided to plaintiff did not prevent the tar from splashing onto plaintiff's face under the mask and that plaintiff was not wearing any protective equipment or protective apparel to protect his neck.

St. John v State of N.Y.
January 2, 2015
Appellate Division, Fourth Department

Claimant allegedly slipped or tripped as she attempted to attach a piece of equipment to the hitch of a pickup truck.  She was employed by a contractor hired by defendant State.  The incident occurred at a parking lot leased by claimant’s employer for the storage of material and equipment on the project. 

The trial court granted defendants’ motion to dismiss the common-law negligence, Labor Law §§ 241(6) and 200 claims, and denied claimant’s cross-motion for partial summary judgment on the issue of liability on § 241(6) claim.

Labor Law § 241(6) (JAE)

Defendants successfully established as a matter of law that the New York State Thruway Authority had no connection with the project and was erroneously named a defendant, and claimant failed to raise a triable issue of fact.  Defendants further established that the State is not an "owner" for purposes of liability under Labor Law § 241 (6).  The State "was the owner of the construction site, but was not the owner of the property where [claimant] was injured,” and it had no legal authority over the parking lot, which was located on private property that had been leased by claimant's employer.

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

With respect to the Labor Law § 200 and common-law negligence claims, the State established that it “did not occupy, own, or control the [parking lot] and did not employ it for a special use, and thus did not owe [claimant] a duty of care,”  and the claimant failed to raise a triable issue of fact in response to defendants' submissions.

Shea v Bloomberg, L.P.
January 14, 2015
Appellate Division, Second Department

Shea allegedly was injured when he was ejected from the rear cargo box of a John Deere Gator utility vehicle.  He was a stagehand employed by United Stage, who was hired by defendant MDE, to set up and break down temporary stages and canopies for a corporate party.  On the morning after the event, Shea arrived at the site and his incident occurred when he was on his way from the parking lot to the staging tent to receive his assignment.

The trial court denied MDE’s motion to dismiss Shea’s alleged violation of Labor Law § 241(6), and granted defendants Bloomberg, L.P. and Bloomberg, Inc. for summary judgment on their cross-claim for contractual indemnification. 

Labor Law § 241(6) (JAE)

Labor Law § 241(6) provides that “[a]ll areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places.”  MDE made a prima facie showing that the accident did not fall within the scope of section 241(6) because it did not arise from construction, excavation, or demolition work.  In opposition, however, the plaintiff raised a triable issue of fact as to whether he was engaged in construction or demolition work at the time of the alleged injury.  Accordingly, the trial court properly denied that branch of MDE’s motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6) insofar as asserted against it.

Indemnity Issues in Labor Law (SEP)

Bloomberg moved for summary judgment seeking contractual indemnification against MDE.  The contract provided MDE would indemnify Bloomberg for losses “arising out of or in connection with…MDE’s acts or omissions.”  As plaintiff was acting within the scope of his employment for a MDE subcontractor at the time of the incident, it clearly arose out of the operations of MDE.  Moreover, in moving, Bloomberg was able to establish that it was free of any attributable negligence. 

 

Schultz v Hi-Tech Constr. & Mgt. Serv., Inc.
January 21, 2015
Appellate Division, Second Department
                                        
Schultz allegedly was injured when he fell from a ladder at a work site.  The trial court denied defendants motion to dismiss the complaint alleging common-law negligence and violation of Labor Law § 200.  At trial and prior to the close of Schultz’s case, the trial court granted defendants’ motion pursuant to CPLR § 4401, holding that there was no evidence of a dangerous condition at the work site, and dismissed the complaint.
 
Labor Law § 200 and Common-Law Negligence (VCP)

The Second Department noted that the trial court should not have considered the merits of defendants’ motion until the close of Schultz’s case, and that his theory of the case – defendants created a dangerous condition on the premises by placing the ladder in an inherently precarious position – did not warrant premature consideration of defendants’ motion.  Thus, Schultz was entitled to a new trial. 

 

Garzon v Viola
January 21, 2015
Appellate Division, Second Department
                                        
Garzon allegedly was injured when he fell from scaffold that tipped when a coworker failed to hold the rope that was used to raise the scaffold platform.  The trial court denied Garzon’s motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) claim against defendant Anna Viola, and granted her and Anthony Viola’s cross-motion to dismiss the Labor Law § 200 and common-law negligence claims.

Labor Law § 240(1) (DRA)

As it was undisputed the scaffold lacked rails on the side, the Second Department held Garzon established prima facie that the statute was violated and the violation was a proximate cause of his injuries because the scaffold was not “so constructed, placed and operated as to give proper protection.” 

Defendants failed to raise issues of fact as to sole proximate cause because there was no evidence that Garzon was recalcitrant in that he deliberately refused to use a safety harness “since there was no building hooks to which the harness could be attached.”  Further, even if he was partially at fault for not attaching his harness to a parapet, comparative negligence is not a defense.

PRACTICE POINT:  The failure of the sole proximate cause defense here is not actually linked to the failure to prove that there was an appropriate and available safety device present, but rather speaks to the very definition of the sole proximate cause defense, that it is the “SOLE” proximate cause of the injury producing accident.  Here there is another safety device, the rope and system designed to keep the scaffold level, failed causing the plaintiff to fall.  The fact that had plaintiff been tied in as he was instructed he would not have been injured can therefore not be the “SOLE” proximate cause of the accident in any event and thus that defense, says the court, must fail.

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

The Second Department reversed and held that the Supreme Court improperly granted that branch of the cross motion of the defendants Anna L. Viola and Anthony Viola for summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action insofar as asserted against them. These defendants, who owned the subject real property, made a prima facie showing that they did not have the authority to supervise or control the manner in which the appellant performed his work. In opposition, however, the appellant raised a triable issue of fact as to the extent of the respondents' supervision and control.

Jimenez v Metropolitan  Transp. Auth.
January 22, 2015
Appellate Division, First Department
                                        
Jimenez testified at his 50-h hearing that he was working at a ventilation facility as a driller in a shaft when a “rock anchor” weighing 500 pounds fell on top of him.  A coworker stated in his affidavit submitted in support of Jimenez’s motion for summary judgment that he saw the rock anchor was hanging from a ledge along the south wall, dangling from a rope, and that it fell seven to eight feet from its position on the ledge before striking Jimenez. 

Defendant MTA’s injury report stated Jimenez was “struck by a stranded anchor’ length that was not secured properly.  It was disturbed by a passing [employee].  A section of the anchor slipped off the south ledge, striking Jimenez’ hard hat and knocking his hat to the ground.” 

The trial court denied Jimenez’s motion for summary judgment on his alleged violations of Labor Law §§ 240(1) and 241(6) without prejudice to renew after discovery was completed. 

Labor Law § 240(1) (DRA)

The First Department held that based on the testimony, affidavits and discovery submitted by Jimenez, he was a protected worker engaged in demolition and excavation work struck by a falling object that should have been secured, that this violation was a proximate cause of his injuries, and he was therefore entitled to summary judgment on his § 240(1) claim.

In opposition, defendants failed to establish that the motion should be denied as premature or that any other facts essential to justify a denial of the motion exist but required additional discovery.  Nor did defendants submit any testimony which supports their conclusory claim that Jimenez’s conduct was the sole proximate cause of his accident.   

PRACTICE POINT:  The plaintiff was struck by a falling object which by the defendant own admission in the accident report should have been “staged” or secured better.  Recall that the standard for a falling object is an object which is being hoisted or which should have been secured to prevent it from falling.  Here by the defendant’s own words it appears this was an object which should have been better secured and thus was able to fall and strike the plaintiff.

Boots v Bette & Cring, LLC
January 22, 2015
Appellate Division, Third Department
                                        
While replacing a window of a school building, Boots injured his left hand and wrist when the utility knife he was using malfunctioned.  He filed this common-law negligence and Labor Law §§ 240(1), 241(6), and 200 action, and the trial court granted defendant’s motion to dismiss the complaint.  Boots appealed only the denial of his motion with respect to his § 241(6) claim predicated on Industrial Code regulation § 23-1.10(a).

Labor Law § 241(6) (JAE)
§ 23-1.10 (a) states, in pertinent part, that unpowered hand tools with “[s]plit or loose tool handles shall not be used.”  Notably, this regulatory provision does not merely impose a general duty to keep unpowered hand tools in a “safe,” “proper” or “adequate” condition, nor does it proscribe the usage of hand tools with “unsafe” or “defective” handles, but, rather, specifically prohibits the use of hand tools with “[s]plit or loose . . . handles.”
Having determined that § 23-1.10 (a) was a predicate basis for a § 241 (6) claim, the court then considered its application.  Boots explained during his examination before trial that, while he was cutting a piece of plastic with a utility knife, the locking mechanism that secures the retractable blade was loose, causing the blade to break in half and cut his wrist.  Whether the dysfunctional locking mechanism can fairly be considered to be a “[s]plit or loose tool handle[]” is a question of law to be decided by the courts.  A fair reading of the regulation upon which he relies relies, however, does not compel us to conclude that the looseness of the locking mechanism — an internal component of the knife and not a visible or functional part of the handle itself — was what the Commissioner of Labor had contemplated in his promulgation of 12 NYCRR 23-1.10 (a).  While the regulation sets forth a strict prohibition against using tools that have loose or split handles, it makes no mention whatsoever of the locking mechanism found within a hand tool, and we are thus constrained to determine that it is inapplicable. Accordingly, plaintiffs are without a viable cause of action pursuant to Labor Law § 241 (6).

Bascombe v West 44th St. Hotel, LLC
January 28, 2014
Appellate Division, Second Department

Plaintiff was injured while working on the 15th floor during the construction a building.  The incident allegedly occurred when a piece of plywood, which had been placed over an opening in the floor, collapsed beneath him when he stepped onto it.  The trial court denied plaintiff’s motion for summary judgment on the issue of liability on his Labor Law § 240(1), finding a triable issue of fact as to whether his own conduct was the sole proximate cause of his injuries.    

Labor Law § 240(1) (DRA)

The Second Department held that although plaintiff met his burden in establishing a violation of the statute, defendants produced evidence that a safety harness and line were available to plaintiff, that he was aware he was required to anchor the line on the floor where he was working, and that the anchors, harness, and line would have prevented him from falling to the 14th floor, but that he had consciously decided not to anchor his line on the 15th floor as instructed.  Thus, defendant’s submissions raised an issue of fact on the issue of sole proximate cause resulting in denial of plaintiff’s motion.

PRACTICE POINT:  The elements of sole proximate cause were established by the defendant and thus plaintiff’s motion was denied.  The presence of an appropriate safety device, which the plaintiff was aware he was required to anchor, and simply choose not to use leading to his injury.  Why then, was Summary Judgment not awarded to the defendant?  Two potential reasons, first if the defendant did not move for that relief and second, if there was testimony by the plaintiff that there was missing an element, any of the three, availability or appropriateness of the safety device or the knowledge he was to use it. 

 

Fucci v Plotke
January 28, 2015
Appellate Division, Second Department

Plaintiff filed this Labor Law §§ 240(1), 241(6), 200 and common-law negligence action alleging defects or dangers in the methods or materials of his work.   The trial court granted defendants’ motion to dismiss the complaint in its entirety.   

Labor Law § 240(1) (DRA)

The Second Department held that dismissal of the §§ 240(1) and 241(6) claims were warranted as a matter of law because defendants established they were not the owners, contractors, or statutory agents as they did have supervisory control and authority over the work being done where plaintiff was injured.

PRACTICE POINT:  Essential to all Labor Law cases is establishing that the defendant is an appropriate defendant for a labor law case.  Here the plaintiff was seeking to establish that the defendant was an agent of the owner and to do so it is necessary to establish that the entity has the authority to supervise the plaintiff is the work being done at the time of the injury.  I always recommend that all contracts and communication be carefully reviewed to look for such authority as there is not a requirement that the authority be exercised, only that it exist.  In addition, if such authority is not established by the contract and supporting documentation remember that statements made during the deposition of the defendant representative can also establish this element and thus careful preparation for the deposition is necessary, for all parties.

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

The defendants established their prima facie entitlement to judgment as a matter of law dismissing the causes of action alleging violations of Labor Law § 200 and common-law negligence through the submission of evidence that they did not have the authority to supervise or control the manner in which the injured plaintiff performed his work. To the extent that the defendants had general supervisory authority over the work, this was insufficient in itself to impose liability under the Labor Law.

Borner v Fordham Univ.
January 29, 2015
Appellate Division, First Department
                                        
Borner allegedly was injured when he fell in a parking lot.  The trial court denied defendants Fordham and MRCE’s motion to dismiss the Labor Law § 200 and common-law negligence claims, and granted that portion of their motion to dismiss the § 241(6) claim predicated upon Industrial Code regulation § 23-1.7(d).

Labor Law § 241(6) (JAE)

The First Department affirmed the dismissal of plaintiff’s Labor Law § 241(6) claim insofar as it was predicated on a violation of Industrial Code 23-1.7(d). It determined that this regulation has no application to the instant facts since plaintiff fell in a parking lot, not "a floor, passageway, walkway, scaffold, platform or other elevated working surface,' within the purview of 12 NYCRR 23-1.7(d)."

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

The First Department held that the motion court properly denied that portion of defendants' motion seeking dismissal of plaintiff's Labor Law § 200 and common law negligence claims. There are questions of fact concerning whether Fordham, the property owner, had actual or constructive notice of the icy condition that allegedly caused plaintiff, a core driller employed by nonparty Aquifier Drilling & Testing, to slip and fall. There are also questions of fact as to whether MRCE, a geotechnical engineering firm hired to assure compliance with construction plans and specifications, had control over plaintiff's work and the work site, precluding summary judgment.

Larkin v Sano-Rubin Constr. Co., Inc.
January 29, 2015
Appellate Division, Third Department
                                        
Larkin’s employer, Atlantic, was hired by Niskayuna Central School District to remove windows from a building at defendant Iroquois Middle School.  Codefendant Sano was hired by the school as the construction manager.  Larkin allegedly was injured when a window panel above where he was working suddenly became dislodged, slid down its frame and pinned his right shoulder between the panel and an empty space in the window frame.

The trial court denied Larkin’s motion for partial summary judgment on his Labor Law § 240(1), and granted defendants cross-motion to dismiss the complaint alleging §§ 240(1), 241(6), and common-law negligence claims.  The trial court also denied Larkin’s motion for renewal.

Labor Law § 240(1) (DRA)

Larkin contends there are factual issues whether Sano’s role renders it a statutory defendant as a construction manager, but the Third Department noted a construction manager is not deemed a statutory agent unless that party has “the authority to direct, supervise or control the work which brought about the injury.”  It is well-settled that the key criterion in “not whether the party charged with the violation actually exercised control over the work, but rather whether [that party] had the right to do so.”

Here, Sano’s contract provided that it “shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work of each of the Contractors” and further, that if Sano “observed any safety program or action at the site which it believes is improper or in violation of applicable law or rules, it shall immediately advise the Owner.” 

The Court held that Sano had no authority to direct or control the work being performed by Larkin.  Further, the Court rejected Larkin’s reliance upon the affidavit of a private investigator summarizing hearsay statements of several Atlantic workers because no reasonable excuse was proffered for failing to tender evidence in admissible form. 

PRACTICE POINT:  In the same vein as the Fucci case above to establish a defendant as an appropriate Labor Law defendant it is necessary to provide proof that they had the authority to supervise, direct or control the work being done be the plaintiff at the time of the accident.  Once again my advice is to very carefully read all the contract and related documents, including emails and other communications between the alleged “agent” and the owners and contractors to help establish the presence or absence of such authority.  That is not, however, the end of the story, make sure your witness is prepared for that lien of questioning during the deposition.

Labor Law § 241(6) (JAE)

Larkin failed to address the trial court’s dismissal of the Labor Law § 241(6) claim, and the Court treated it as abandoned.

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

Kudos to defendant’s contract lawyer for addressing important labor law defenses in the contract which set the stage for a meritorious defense.  Labor Law § 200 codifies the common-law duty of care as between owners, general contractors and their agents, and the imposition of liability requires a showing that the defendant possessed the authority to direct or control the activity resulting in injury.  Sano–Rubin's contract with the school district explicitly stated that Sano–Rubin “shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the [w]ork of each of the [c]ontractors” and further, that if Sano–Rubin “observes any safety program or action at the site which it believes is improper or in violation of applicable law or rules, it shall immediately advise the [o]wner.” This contract was submitted in support of the cross motion, together with proof of the implementation of these contractual limitations on Sano–Rubin's authority through the testimony of its sole employee assigned to the job site, as well as Atlantic's supervisor on the project. These witnesses both confirmed that Sano–Rubin had no authority to direct or control the work being performed by plaintiff. These submissions were sufficient to establish its prima facie right to judgment as a matter of law, and plaintiff had no admissible evidence to refute. 

 

 

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


12 NYCRR § 23-1.7(a) – Protection in Construction, Demolition and Excavation Operations; Protection from general hazards; Overhead hazards.

§ 23-1.7(a)(1) is sufficiently specific.

Phaneuf v Tenneco, Inc., 938 F.Supp. 112 (N.D.N.Y. 1996);

Prevete v Costsco Wholesale Corp. or Brooklyn, 2002 WL 31697098 (E.D.N.Y. 2002);

Zervos v City of New Yokr, 8 AD3d 477 (2d Dept 2004);

Mikcova v Alps Mechanical Inc., 34 AD3d 769 (2d Dept 2006);

Portillo v Roby Anne Development, LLC, 32 AD3d 421 (2d Dept 2005);

Mercado v TPT Brooklyn Associates, LLC, 38 AD3d 732 (2d Dept 2007);

Roosa v Cornell Real Property Servicing Inc., 38 AD3d 1352, 831 NYS2d 784 (4th Dept 2007);

Buckley v Columbia Grammar and Preparatory, 44 AD3d 263 (1st Dept 2007);

Marin v AP-Amsterdam 1661 Park LLC, 60 AD3d 825 (2d Dept 2009);

Garcia v DPA Wallace Avenue I, LLC, 101 AD3d 415 (1st Dept 2012);

Griffin v Clinton Green South, LLC, 98 AD3d 41 (1st Dept 2012);

Landers v 1345 Leashold LLC, 100 AD3d 576 (1st Dept 2012);

Moncayo v Curtis Partition Corp., 106 AD3d 963 (2d Dept 2013).

In Phaneuf, § 23-1.7(a)(1) inapplicable to π injured by object that was thrown.
In Prevete. Reg inapplicable where π injured by fire started by sparks from welding overhead.
Mikcova held reg inapplicable to incident where metal barriers part of 10-12-foot high scaffold tipped over and fell on π.
Portillo held reg inapplicable to π struck by falling unsecured steel beam b/c area not normally exposed to falling objects.
In Mercado, reg inapplicable to π struck by piece of ceiling while performing interior demolition work b/c area where accident occurred not normally exposed to falling objects or material.
In Roosa, evidence of prior incidents of branches falling from trees sufficient to create question of fact as to whether work site “normally exposed to falling material or objects.”
Buckley held reg inapplicable where object unexpectedly falls on π.
In Marin, fact that two brackets previously fell from building before π’s incident insufficient to establish site “normally exposed” to falling brackets; thus, reg inapplicable to π injured while installing vertical line of drainpipe on exterior of building when metal bracket used to affix pipe to building’s brick exterior fell on head.
Garcia held reg inapplicable where thin strip of metal broke & “snapped” upwards, cutting π’s hand b/c π not subject to overhead hazard/falling object.
In Griffin, reg inapplicable to π who was instructed to dismantle piece of scaffold after completing work to ceiling that fell & struck him b/c injury occurred in area he was required to work as result of dismantling the very protection erected to protect against collapse of newly-installed ceiling.
Landers held reg inapplicable to π struck in head by falling freight elevator door where site free of falling objects or material.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Hurwitz & Fine, P.C. is a full-service law firm
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Labor Law Pointers

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David R. Adams

Associate Editor

V. Christopher Potenza

Associate Editor
Steven E. Peiper

Associate Editor

Jennifer A. Ehman

Associate Editor
Marc A. Schulz

Labor Law Team

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