Labor Law Pointers - Volume IV, No. 5

From the Editor:

Do you have a situation, we love situations, in fact we crave situations the way that bears crave honey, the way that sharks crave blood, the way that, ok, that's enough.  Maybe not, sometimes we actually fantasize about them, ok, now I have clearly gone too far.
Simply said, we are always here to help, please feel free to give us a call or drop us email and make out day.  
With spring in the air we are starting to schedule training seminars for our carrier friends and claims partners, if you have a labor law topic you think it would be helpful for us to provide a refresher course for your team on, please let us know.  We are happy to do it in person or via webinar, just ask.  We have several common topics including conducting the initial investigation, what are they elements of a labor law case, what defenses are available for a labor law case, risk transfer and recent court of appeals cases to name a few.  We can tailor our training to whatever servers your needs most directly.
I would be remiss if I did not remind everyone that our coverage team puts out their own longstanding newsletter, Coverage Pointers.  Anyone who would like to receive this fantastic resource can drop Dan an email at [email protected].  
Even as I mention spring, winter refuses to give up around here. According to the National Weather Service February was the coldest month from when they started keeping records in 1871 with an and erase temperature of 10.9 degrees, shattering the old low average of 11.6 degrees in February 1934.  Went skiing in Utah and I had more snow in my front yard than they had at the base of the mountain.  
The cases this month cover a variety of topics, from the homeowner exclusion to what constitutes a falling object case to a so employed plaintiff to the standard for a statutory agent of the owner.  In other words we are covering a lot of territory quickly.  We endeavor to keep the newsletter brief to enable you, our readers, to read the entire publication within a short time and retain the basic premise of each case quickly.  As always we encourage you to share the newsletter with any and all you think would enjoy it or benefit from the summary and analysis of every single labor law case appellate decision in the state every month.  Anyone wishing to subscribe need only send me an email and you will be added to the distribution list. 

That is what I have for you this month, hope that you find our efforts to be helpful.

 

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.

Rajkumar v Budd Contr. Corp.
February 5, 2015
Appellate Division, First Department

Rajkumar allegedly slipped while carrying a framed mirror when his foot became caught in a seam between pieces of construction paper laid by defendant general contractor Budd to protect a newly installed floor during a hotel lobby renovation.  Rajkumar filed this Labor Law § 200 and common-law negligence action alleging that Budd created the allegedly defective condition that caused his accident.  The trial court granted Budd’s motion for summary judgment.   

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

The First Department reversed and denied judgment to the general contractor Budd, holding that Budd failed to meet its burden of establishing prima facie that it properly secured the paper in which plaintiff allegedly caught his foot.  As plaintiff asserts that Budd created the condition, Budd’s arguments regarding actual and constructive notice were irrelevant.

Zimmer v Town of Lancaster Indus. Dev. Agency
February 6, 2015
Appellate Division, Fourth Department
                                        
Zimmer allegedly was injured while attempting to repair a rooftop commercial HVAC unit when the upper section of a four-foot extension ladder fell and struck him while attempting to set the ladder in place.  The automatic locks on the ladder were iced-over at the time of the incident as a result of having been stored outside the night before.  The trial court granted Zimmer’s motion for summary judgment on his Labor Law §§ 240(1), granted defendants’ cross-motion to dismiss the § 241(6) claim and denied defendants’ motion to dismiss the common-law negligence and § 200 claims. 

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 which should have been secured, that this violation was a proximate cause of his injuries, and thus he 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:  Willinski once again rears its head.  Ever since the Court of Appeals decision in October 2011, a falling object may be, at its base, on the same level as the plaintiff upon whom it falls and qualify as a labor law case.  Here even though the base of the ladder was at the same level as the plaintiff when the top section fell upon him it was considered by the court to be a falling object as it was an object which should have been secured and which then caused injury to the plaintiff due to the effects of gravity.  

Labor Law § 241(6) (JAE)
With regard to the Labor Law § 241 (6) cause of action, the First Department affirmed the trial court’s dismissal insofar as it was based on the alleged violation of 12 NYCRR 23-1.21 (b) (3) (iv).
Pursuant to that regulation, “[a] ladder shall not be used . . . [i]f it has any flaw or defect of material that may cause ladder failure.”  Here, the icing of the automatic positive acting locks was not a flaw or defect of material within the meaning of the regulation.
However, the appellate division agreed with plaintiff that the trial court erred in granting defendants’ cross motion with respect to section 241 (6) insofar as it was based on the alleged violation of 12 NYCRR 23-1.21 (d) (2).  That regulation requires that “[e]ach upper section of any extension ladder when extended shall be locked in place by two automatic positive acting locks” and, here, contrary to defendants’ contention, they failed to establish that the regulation was inapplicable to the facts of this case.  Thus, the trial court’s decision was modified accordingly.
Lastly, the court summarily dismissed plaintiff’s contention that he should be granted partial summary judgment on the Labor Law § 241 (6) cause of action insofar as it was based on an alleged violation of 12 NYCRR 23-1.21 (d) (2) since this was raised for the first time in his reply papers.
Labor Law § 200 and Common-Law Negligence (VCP)

The Fourth Department reversed and granted judgment to the defendants with respect to the Labor Law § 200 and common-law negligence causes of action.  The defendants met their initial burden by establishing that plaintiff's 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.

Thome v Benchmark Main Tr. Assoc., LLC
February 6, 2015
Appellate Division, Fourth Department

The instant case has its origins in a Labor Law case that Christa and IPL settled prior to trial.  At that time, however, both parties kept their indemnity claims against third-party defendant Fisher active.  Fisher, in turn, made a series of motions to the Trial Court, of which we review below.
Indemnity Issues in Labor Law (SEP)
Fisher Motion 1 – Fisher made a motion in limine for partial summary judgment to dismiss an indemnity/contribution claim commenced by IPL.  That motion was denied by the Trial Court, and Fisher sought appellate review.  In refusing to review the motion in limine, the Appellate Division noted that such an Order is “at best, an advisory opinion which neither appealable as of right nor by permission.”
Fisher Motion 2 – After the settlement, Fisher moved to amend its Answer to assert an Affirmative Defense that the Christa/IPL settlement was not reasonable.  The Trial Court denied the application, but the Fourth Department reversed.
In reaching this conclusion, the Court noted that where a position is not advanced in the pleadings a party is instructed by the CPLR to plead the Affirmative Defense to avoid undue surprise and prejudice to the other parties.  Because the settlement was surely not reached at the time of the initial Complaint, it follows that it could not have been included therein. As such, defendant Fisher was obligated to assert the Affirmative Defense. 
The Court also noted that Christa’s argument that the proposed Amendment was futile did not change the outcome where, as here, the company failed to present any evidence that the settlement was appropriate and reasonable. 

Banks v LPCiminelli, Inc.
February 6, 2014
Appellate Division, Fourth Department
                                        
Banks allegedly was injured while attempting to hand a bundle of insulation to a coworker ten feet above him.  The insulation fell and struck him in the head.  The trial court denied his motion seeking summary judgment on his Labor Law § 240(1) claim, and granted defendants’ cross-motion to dismiss the § 241(6) claim predicated on Industrial Code regulations 23-6.1(c) and 7.1(c).

Labor Law § 240(1) (DRA)

The Fourth Department held Banks’ submissions in support of his motion raised a triable issue of fact whether his own actions were the sole proximate cause of his injuries regarding whether a boom lift or a scissor lift was readily available at the work site and whether Banks knew that he was expected to use the lift to hoist the material but for no good reason chose not to do so. 

PRACTICE POINT:  The sole proximate cause defense has certain elements which must be present to find that the plaintiff’s actions were the “sole proximate cause” of the injury causing accident.  The only cause must be that the plaintiff either failed to use or misused an adequate and available safety device.  Where, as in the instant case, there is a question of fact as to whether or not the elements of the defense were met the court will not find for either party but rather reserve that determination for the trier of fact, the jury.

Labor Law § 241(6) (JAE)
Contrary to plaintiff's further contention, the Fourth Department held that the trial court did not err in granting that part of defendants’ cross motion seeking dismissal of the Labor Law § 241 (6) claim to the extent it was premised upon violations of 12 NYCRR 23-6.1 (c) and 23-7.1 (c).
Inasmuch as the accident did not involve hoisting equipment, defendants established that those regulations were not applicable to the facts of this case.  Also, in the absence of a cross appeal by defendants, the appellate division declined to address the contention that the court erred in failing to dismiss the Labor Law § 241 (6) claim in its entirety.
Caudill v Rochester Inst. of Tech.
February 6, 2014
Appellate Division, Fourth Department
                                        
Caudill allegedly stepped on a “softball”-sized rock or clump of hard dirt while descending an earthen ramp into a trench.  In support of his Labor Law § 241 (6) claim, Caudill alleged the violation of 12 NYCRR 23-1.7 (e) (1), which addresses tripping hazards in passageways. Defendant moved for summary judgment dismissing the complaint, and plaintiff cross-moved for leave to amend his bill of particulars to add 12 NYCRR 23-1.23 as additional support for his Labor Law § 241 (6) claim.

The trial court granted defendant’s motion to dismiss the common-law negligence and Labor Law § 240(1) claims, denied defendant’s motion to dismiss the newly alleged Labor Law § 241(6) claim predicated upon Industrial Code regulations 23-1.23, but granted the motion with respect to the claim as predicated on 23-1.7(e)(1). 

Labor Law § 241(6) (JAE)
On this appeal, plaintiff contended that the court erred in granting that part of defendant's motion for summary judgment seeking dismissal of the Labor Law § 241 (6) claim insofar as it is based on the alleged violation of 12 NYCRR 23-1.7 (e) (1). That section provides, in pertinent part, that “[a]ll passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping.”  Although a single rock or clump of dirt does not constitute an “accumulation[] of dirt and debris,” the Fourth Department agreed with plaintiff that it may nevertheless constitute another “obstruction[] or condition[] which could cause tripping.” 
The Fourth Department also rejected defendant’s condition that the trial court properly granted that part of its motion seeking dismissal of the Labor Law § 241 (6) claim insofar as it is based on the alleged violation of 12 NYCRR 23-1.7 (e) (1) because plaintiff's allegations concerning the cause of his fall were speculative. Defendant, as the moving party, was required to establish in the first instance that its violation of the regulation was not a proximate cause of the accident.  In support of its motion, defendant submitted a transcript of plaintiff's deposition, wherein plaintiff repeatedly alleged that the object on the ramp caused his fall.  It thus concluded that defendant failed to meet its initial burden of establishing as a matter of law that any alleged violation of 12 NYCRR 23-1.7 (e) (1) was not a proximate cause of the accident.  The court clarified that this was not a situation in which the plaintiff did not know what caused him to fall, and it is not just as likely that the accident could have been caused by some other factor, such as a misstep or loss of balance.
Floyd v New York State Thurway Auth.
February 6, 2015
Appellate Division, Fourth Department
                                        
Floyd, a painter working on a large-scale bridge painting project, allegedly was struck and injured by a falling cable while preparing to return to his work area.  The Court of Claims denied defendant’s motion to dismiss the Labor Law § 240(1), and thereafter determined defendant 100% liable for Floyd’s injuries.

Labor Law § 240(1) (DRA)

The Fourth Department held that defendant “failed to eliminate all triable issues of fact as to whether the object that struck [Floyd] was an object that was being hoisted or secured … or required securing for the purposes of the undertaking pursuant to Labor Law § 240(1).”
 
The Court also affirmed the Court of Claims decision to grant judgment on liability after conducting a trial.  Viewing the evidence in the light most favorable to sustain the judgment following nonjury trial, the Court held there is a fair interpretation of the evidence supporting the Court’s determination that defendant violated the statute.

PRACTICE POINT:  This case clearly reiterates the standard for a falling object case, that the falling object must be one which is either being hoisted at the time, that the object was I the process of being secured or that the object was one which required securing for the purpose of the activity undertaken.  The case also clearly outlines for us the standard to overturn a trial verdict.  It is necessary, in order to overturn a trial verdict, that the decision be one which, when viewed in the light most favorable to upholding the verdict reached, that there I a fair interpretation of the evidence supporting the determination that the plaintiff violated the labor law.  It does not matter if the verdict is reached by a jury, of by the court in the caseo f a Court of Claims trial.

Taveras v Cayot Realty, Inc.
February 11, 2015
Appellate Division, Second Department

Taveras was allegedly injured when he fell off the roof of a mobile home while renovating it.  The trial court denied Taveras’ motion for summary judgment on his Labor Law § 240(1) cause of action.

Labor Law § 240(1) (DRA)

The Second Department held Taveras demonstrated prima facie entitlement to judgment as a matter of law based upon his pleadings and affidavit in Spanish, with a translation in English and affidavit from a translator.  However, the Court also held defendant raise a triable issue of fact as to whether Traveras was a volunteer and thus not entitled to the protection under the statute.  Thus, the motion was properly denied on the issue of liability.

PRACTICE POINT:  To be considered to be a valid plaintiff in a labor law case the plaintiff must be, to quote the statute itself, “so employed”.  That means that the plaintiff may not be a volunteer but must be actually employed in some capacity to do the work he was involved in at the time of the accident.  Here a question of fact existed as to the employment status off the plaintiff.

Reynoso v Bovis Lend Lease LMB, Inc.
February 11, 2015
Appellate Division, Fourth Department

National contracted Bovis in connections with the construction of a memorial and museum at the site of the former World Trade Center.  Bovis hired nonparty Navillus, Reynoso’s employer.  He was instructed to carry a nine-by-two-foot plywood panel weighing more than 100 pounds to an adjacent area of the site, requiring him to walk over an area covered in snow and ice.

Reynoso allegedly slipped and fell, and filed this Labor Law §§ 241(6) action against National and Bovis predicated on Industrial Code regulations related to slipping hazards.  Defendants moved to vacate the note of issue and to compel further discovery, while Reynoso opposed and moved for summary judgment on his § 241(6) claim under regulation 23-1.7(d).  The trial court denied defendants’ motion to vacate, and granted Reynoso motion on his § 241(6) claim.

Labor Law § 241(6) (JAE)

The question before the Fourth Department was the applicability of 12 NYCRR 23-1.7(d).  This section of the Industrial Code directs that ice and snow “shall be removed” from worksites so as “to provide safe footing.”  Reynoso testified at his deposition and averred in his affidavit in support of his motion that he slipped and fell as a result of the snow and ice at the location where he was performing the tasks assigned to him.

Reynoso also demonstrated his freedom from comparative fault, as he was following his employer’s directives, using the equipment provided, and wearing proper shoes as required by his employer. Thus, in affirming the trial court, the Fourth Department found that Reynoso demonstrated his prima facie entitlement to judgment as a matter of law on the Labor Law § 241(6) cause of action insofar as asserted against Bovis.

Moreover, since an owner or general contractor’s vicarious liability under section 241 (6) is not dependent on its personal capability to prevent or cure a dangerous condition, the absence of actual or constructive notice sufficient to prevent or cure must also be irrelevant to the imposition of Labor Law § 241 (6) liability.

Pineda v Elias
February 11, 2015
Appellate Division, Second Department

Pineda allegedly was injured when he fell from a ladder while performing construction work on the residence of defendant Elias.  The trial court granted Elias’ motion to dismiss the Complaint alleging common-law negligence and violations of Labor Law §§ 240(1), 241(6) and 200.     

Labor Law § 240(1) (DRA)

The Second Department held Elias established, prima facie, the applicability of the homeowner’s exemption under the §§ 240(1) and 241(6), and the trial court properly rejected Pineda’s argument that the motion was premature since he offered nothing but speculation as to whether discovery might lead to evidence relevant to the applicability of the exemption. 

PRACTICE POINT:  To establish the homeowner’s exemption under the §§ 240(1) or 241(6) the defendant needs to provide proof establishing that the defendant was the owner of the single of 2 family dwelling, which was a residential home in which the defendant lived and which was used primarily for a non-commercial purpose. 

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

The Second Department reversed, ruling that the Supreme Court erred in granting that branch of defendant Elias's motion for summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action.  Plaintiff alleged that his injuries were caused both by a dangerous condition on the premises and the “means and methods” of construction. Accordingly, in order to be entitled to judgment as a matter of law, Elias was required to address both theories.  Since Elias failed to establish, prima facie, that he neither created nor had actual or constructive notice of a dangerous condition on the premises, that branch of his motion for summary judgment dismissing the causes of action for common-law negligence and Labor Law § 200 insofar as asserted against him should have been denied, without regard to the sufficiency of the plaintiff's papers submitted in opposition.

Matter of Mitchell v NRG Energy, Inc.
February 13, 2014
Appellate Division, Fourth Department

Decedent Mitchell was fatally injured when the dump box of a dump truck lowered suddenly while he was attempting to unload debris from a demolition project, crushing him between the box and the frame of the truck.  The trial court denied plaintiff’s cross-motion for partial summary judgment on his Labor Law § 240(1) and denied defendants’ motion to dismiss the Complaint alleging common-law negligence and violations of Labor Law §§ 200 and 241(6) predicated on 23-9.7(c).

Labor Law § 240(1) (DRA)

The Fourth Department held that the trial court properly denied the portion of the motions for this claim because although “there is a potential causal connection between the object’s inadequately regulated descent and plaintiff’s injury …, neither party is entitled to summary judgment on plaintiff’s Labor Law § 240(1).  Whether plaintiff’s injuries were proximately caused by the lack of a safety device of the kind required by the statute is an issue for a trier of fact to determine.”

PRACTICE POINT:  This tragic case turns on the basic issue of whether or not there was, or should have been, a safety device of the type required by the statute, which would have or could have protected the plaintiff from the injury sustained.  That, in this case, is a question of fact for the trier of fact, the jury, to determine.  A case like this is not as clear cut at a plaintiff falling off a ladder and the retention of a quality expert to establish that there either is or is not a safety devise which would have prevented the tragedy can be essential to the outcome of the Summary Judgment motions sure to be filed.

Labor Law § 241(6) (JAE)

With regard to the § 241(6) claim, the Fourth Department found that the trial court properly denied  defendants’ motion insofar as it was premised on alleged violations of 12 NYCRR 23-2.1 (b) and the third sentence of 12 NYCRR 23-9.2 (a).

12 NYCRR 23-2.1 (b) is sufficiently specific to support liability under section 241 (6), and the trial court properly concluded that defendants were not prejudiced by plaintiff’s delay in identifying the alleged violation of that section.  Moreover, the found triable issues of fact whether defendants violated that regulation and whether decedent’s injuries were proximately caused thereby.

With respect to the third sentence of 12 NYCRR 23-9.2 (a), the Fourth Department also found it sufficiently specific.  It further concluded that there were triable issues of fact whether defendants violated that part of the regulation and whether decedent’s injuries were proximately caused thereby. It rejected defendants’ contention that they cannot be held liable, in any event, for an alleged violation of 12 NYCRR 23-9.2 (a) inasmuch as they had no notice of, and were not aware that, the condition at issue was dangerous.  Defendants' knowledge that the condition was dangerous is not a precursor to the imposition of liability. 

However, the Fourth Department did agree with defendants that the trial court erred in denying their motion with respect to the Labor Law § 241 (6) cause of action insofar as it is premised on an alleged violation of 12 NYCRR 23-9.7 (c). That regulation states in pertinent part that “[t]rucks shall not be loaded beyond their rated capacities.” Defendants met their initial burden on their motion of establishing that the truck was not overloaded, and plaintiff failed to raise a triable issue of fact.  It was then directed that the order be modified accordingly. 

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

The Fourth Department reversed and granted this aspect of the motion of the defendants seeking summary judgment on the Labor Law § 200 and common-law negligence causes of action.  Where the alleged defect or dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under Labor Law § 200.   Here, defendants met their burden on the motion of establishing that they did not direct or control plaintiff's work and plaintiff failed to raise a triable issue of fact.  There is no evidence that defendant[s] gave anything more than general instructions on what needed to be done, not how to do it, and monitoring and oversight of the timing and quality of the work is not enough to impose liability under section 200 or under the common law.

 

DaSilva v Haks Engrs.
February 17, 2015
Appellate Division, First Department

Plaintiff commenced this Labor Law and common-law negligence action after allegedly sustaining injuries when the plank of the scaffold he was standing on shifted, causing him to fall on concrete.  Codefendants Earth Tech and Haks Engineers were hired as project management under a construction contract (CMS) with responsibility for ensuring construction contractors had necessary permits and maintained records in accordance with standard practice. 

The CMS stated that [construction manager] will not supervise, direct, control or have authority over or be responsible for each contractor’s means, methods, techniques, sequences or procedures of construction or the safety precautions and programs incident thereto.  The trial court granted defendants’ motion to dismiss plaintiff’s Labor Law §§ 240(1), 241(6), 200 and common-law negligence action. 

Labor Law § 240(1) (DRA)

The First Department affirmed the trial court’s determination that defendants were not the property owner’s statutory agent under the statute such that they should be held vicariously liable for plaintiff’s injuries because the CMS did not confer upon the construction manager the right to exercise supervisory control over the individual contractors, nor were defendants authorized to stop the work if their personnel observed an unsafe practice.

The Court also rejected plaintiff’s argument that despite the CMS, defendants actually functioned as a general contractor and/or that they actually supervised the work.  Accordingly, since plaintiff failed to raise a triable issue of fact regarding defendants’ authority to supervise and control the work, the §§ 240(1) and 241(6) claims were subject to dismissal.

PRACTICE POINT:  I sometimes feel a bit like a broken record by continuing month after month to remind myself and everyone else that the criteria to be an appropriate labor law defendant as the owners agent is that the party needs to have the authority to supervise or control the work which produces the plaintiff’s injury. 
I feel I must also explain to the younger readers out there what it means to sound like a broken record as many of you have never heard an album, yes an actual phonograph record, when it repeats the same sound every time the album make a full rotation of the turntable due to a scratch in the vinyl.  That is the basis of the phrase, now I hope I have explained that so it is understood by the many or you out there who never owned a single album or even a turntable.
Importantly here the court held that the defendant motion was not premature as the plaintiff’s argument that further discovery was necessary did not contain any evidentiary basis that further discovery may lead to relevant evidence.  Mere hope or speculation that further discovery might lead to evidence creating a question of fact is not sufficient to form a basis for the denial of the motion.

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

The First Department affirmed the dismissal of the Labor Law § 200 and common-law negligence claims.  If the claim is based on alleged defects or dangers arising from a subcontractor's methods or materials, liability cannot be imposed on an owner or general contractor unless it is shown that it exercised some supervisory control over the work.  Defendants established that under the CMS they were not obligated to exercise supervisory control over the construction contractor's means or methods of work, nor did they assume such responsibility. Although under the CMS the construction manager had some general duties to monitor safety at the work-site, and defendants' personnel were on site on a daily basis, these general supervisory duties are insufficient to form a basis for the imposition of liability.

 

 

 

 

 

 

 

 

 

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

12 NYCRR § 23-1.7(b) – Protection in Construction, Demolition and Excavation Operations; Protection from general hazards; Falling hazards; Hazardous openings.

§ 23-1.7(b)(1),  requires every hazardous opening be guarded by a substantial cover fastened in place or by a safety railing installed in compliance with the Industrial Code, and
is sufficiently specific.

DeLong v State St. Assocs., 211 AD2d 891, 621 NYS2d 172 [3d Dept. 1995);
Farrell v Dick Enterprises, Inc., 227 AD2d 956, 643 NYS2d 852 (4th Dept 1996);
Mazzu v Benderson Dev. Co., Inc., 224 AD2d 1009, 637 NYS2d 540 (4th Dept 1996);
Bennion v Goodyear Tire & Rubber Co., 229 AD2d 1003, 645 NYS2d 195 (4th Dept 1996);
Williams v G.H. Dev. and Construction Company, Inc., 250 AD2d 959, 672 NYS2d 937 (3d Dept 1998);
Boss v Integral Const. Corp., 249 AD2d 214, 672 NYS2d 92 (1st Dept 1998);
Ozzimo v H.E.S., Inc., 249 AD2d 912, 672 NYS2d 197 (4th Dept 1998);
Frank v Meadowlakes Dev. Corp., 256 AD2d 1141, 686 NYS2d 540 (4th Dept 1998);
O’Connor v Lincoln Metrocenter Partners, L.P., 266 AD2d 60, 698 NYS2d 632 (1st Dept 1999);
Gottstine v Dunlop Tire Corp., 272 AD2d 863, 709 NYS2d 259 (4th Dept 2000);
Luckern v Lyondale Energy Ltd. Partnership, 281 AD2d 884, 722 NYS2d 632 (4th Dept 2001);
Messina v New York, 300 AD2d 121, 752 NYS2d 608 (1st Dept 2002);
Contrera v Gesher Realty Corp., 1 AD3d 111, 766 NYS2d 200 (1st Dept 2003);
Wells v British American Development Corp., 2 AD3d 1141, 770 NYS2d 161 (3d Dept 2003);
Scarso v M.G. General Construction Corp., 16 AD3d 660, 792 NYS2d 546 (2d Dept 2005);
Olsen v James Miller Marine Service, Inc., 16 AD3d 169, 791 NYS2d 92 (1st Dept 2005);
Bonse v Katrine Apartment Assoc., 28 AD3d 990, 813 NYS2d 578 (3d Dept 2006);
Ellis v J.M.G., Inc., 31 AD3d 1220 (4th Dept 2006);
Dzieran v 1800 Boston Road, LLC, 25 AD3d 336, 808 NYS2d 36 (1st Dept 2006);
Smith v McClier Corp., 38 AD3d 322, 831 NYS2d 413 (1st Dept 2007);
Kaleta v New York State Elec. & Gas Corp., 41 AD3d 1257 (4th Dept 2007);
Milanese v Kellerman, 41 AD3d 1058, 838 NYS2d 256 (3d Dept 2007);
Garlow v Chappaqua Cent. School Dist., 38 AD3d 712, 832 NYS2d 627 (2d Dept 2007);
Bell v Bengomo Realty, Inc., 36 AD3d 479, 829 NYS2d 42 (1st Dept 2007);
Godoy v Baisley Lumber Corp., 40 AD3d 920, 837 NYS2d 682 (2d Dept 2007);
Dooley v Peerless Importers, Inc., 42 AD3d 199, 837 NYS2d 720 (2d Dept 2007);
Pilato v Nigel Enterprises, Inc., 48 AD3d 1133, 850 NYS2d 799 (4th Dept 2008);
Rookwood v Hyde Park Owners Corp., 48 AD3d 779, 853 NYS2d 127 (2d Dept 2008);
Hernandez v Columbus Centre, LLC, 50 AD3d 597, 857 NYS2d 84 (1st Dept 2008).

DeLong held reg inapplicable where π fell while painting side of building located on slope of hill upon which series of descending level terrace areas had been constructed b/c elevation difference that caused fall was not an “opening.”

In Farrell, § 23-1.7 held inapplicable where π injured when he stepped into a hole in ground dug during installation of security fence at correctional facility.

Bennion held reg inapplicable where π, standing above drop ceiling, lost his balance, fell and landed straddling rafter upon which he was standing with his right foot going through a ceiling panel.

Mazzu held reg applied to π injured when he and coworker were carrying scaffold between building and pool when π stepped on edge of pool, tile cracked and he fell to bottom of pool.

Boss held reg did not apply where π did not fall into “hazardous opening.”

Ozzimo held reg applied where π fell into open 5-foot trench when the earth beneath his feet gave way.

Frank held reg inapplicable b/c π did not fall through a “hazardous opening.”

Gottstine held reg applied where π, while traversing mat above pit, slipped and fell through 12 by 12-inch hole in mat.

Luckern found question of fact whether thinly covered rupture disc hold on top of condenser tank was “hazardous opening” into which a person may step/fall within meaning of reg.

Messina held reg inapplicable to drainpipe opening 12 inches in diameter and 8 inches deep.

Contrera held reg inapplicable to welder’s work in replacing wooden staircase with iron one.

Wells held reg potentially applicable where π’s evidence indicated that elevator pit opening, which was adjacent to his work area, was large enough for a person to fall through.

Dzieran held reg inapplicable where π injured by falling into a hole as result of basement floor collapse during demolition of brick wall with jackhammer.

In Bonse, reg potentially applicable to accident where π stepped down and broke through both subflooring and sheetrock ceiling of first floor.

Olsen held reg potentially applicable where π injured when plywood covering hole over which he was standing slid, causing him to fall into hole.

Ellis court held reg applied to π injured when he stepped into open-sump hole in basement while installing electrical wire.

Smith held reg inapplicable because staircase not considered a “hazardous opening.”

Kaleta held reg inapplicable to π injured when he fell into 3-foot-deep drainage ditch overgrown with grass & weeds when he stepped out of aerial bucket.
In Melanese, reg held applicable given that 1st floor hole π fell through, after stairs that he was using to ascend to 2nd floor collapsed, was uncovered and large enough for him to fall through.
Garlow held reg inapplicable to π injured when he fell from top of concrete wall.
In Bell, evidence that π’s coworker already in open trench when π fell sufficient to show violation of reg.
Godoy held reg inapplicable where π fell from top of concrete wall since there was no hole or hazardous opening where π walking.

Dooley held reg inapplicable where π fell from floating platform into creek.
Pilato held reg applied where π claimed he fell between ceiling joists.
Rookwood held reg inapplicable where π fell from stairway landing.
Hernandez held reg inapplicable where opening in planks that buckled under π not large enough for a person to fit through.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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
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            Dan D. Kohane                                                                       Cassandra A. Kazukenus
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            Michael F. Perley                                                                   Jennifer A. Ehman
            [email protected]                                                           [email protected]
           
            V. Christopher Potenza                                                          Marc A. Schulz
            [email protected]                                                            [email protected]

 

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