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Labor Law Pointers - Volume IV, No. 6

 

 

From the Editor:

Do you have a situation, we love situations. 

Dan Kohane always starts off Coverage Pointers with that line, and I tried to think if a better way to start and could not find one.  How do you improve on a line like that?  Do your have a problem, too negative.  Do you have an issue, to personal?  Do you have strange set of facts that are baffling everyone and you just want to hear me stammer for a few seconds as I figure out that I should have been drawing a chart and taking careful notes from the first words out of your mouth?   To close to the truth and a bit embarrassing.

The best part of my day is when my phone rings and a friend, a Labor Law Pointers reader or a perfect stranger says “I don’t want to disturb you but I was just wondering if you have a second to talk about this new case I just got.  Makes my day.  I know I am easy to please, but it is the thrill of a new set of facts, trying to remember the name if that case from the second department where the plaintiff fell off the scaffold when the wind blew a gopher off the roof and scared him so he jumped over the side rail. 

This is a big month, we have summarized and analyzed 19 cases for you this month not to mention that Marc has the latest installation in the ongoing analysis of the regulations which make up the basis for all 241(6) claims.  There is a lot to read here this month so I am going to keep this note short and sweet.  Before I go I do need to thank Jennifer Ehman for sticking it out until after the first Wednesday of this month, she is going to be out for a few months to have her daughter and is due very very soon. 

Hope you enjoy our newsletter and by all means please email, call or write with any questions labor law related, it makes our day.  Thanks for your interest.

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.

Daley v 250 Park Ave., LLC
March 11, 2015
Appellate Division, Second Department

Defendant 250 Park Ave. owned the subject premises involved in a renovation project where defendant Nucor was the general contractor and Daley was hired as an electrical mechanic by one of Nucor’s subcontractors.  While Daley was feeding wires through a conduit, the A-frame ladder on which he was standing tipped over, causing him to fall. 

Nurco asserted that Daley’s misuse of the non-defective ladder, including his failure to follow specific safety instructions as to the proper placement and use of the ladder, was the sole proximate cause of the accident.  The trial court, upon re-argument, granted Daley’s motion for partial summary judgment on his Labor Law § 240(1) claim. 

Labor Law § 240(1) (DRA)

The Second Department held the evidence established that Daley’s own negligence was the sole proximate cause of his injures because the parties’ submissions demonstrated that the ladder itself was not defective and appropriate to Daley’s task.  However, the Court found triable issues of fact as to whether the ladder was mispositioned and, if so, who mispositioned it, and, if it was mispositioned by Daley, whether his conduct was the sole proximate cause of the ladder’s tipping over.      

PRACTICE POINT:  This is the classic case for the mispositioning of a ladder.  The trail of these cases is long and difficult to comprehend.  If it was the plaintiff who positioned the ladder, how then is it not his positioning of the ladder which is the sole proximate cause of the accident which caused his injury?  I have been baffled by this reasoning for many years.  Back in 2005 the fourth decided the Woods v Design Center.  A case ironically which had two of my friends on opposite sides of the argument, Destin Santacrose and Steve Segar.   That case held that as the ladder was mispositioned the statute was violated.  As the statute was violated, the plaintiff could not be the sole proximate cause of the accident.  I have argued for years that this is circular logic, that the plaintiff positioned the ladder and that thus it is the positioning that is the sole proximate cause.  You can see, by the case above, just how far I have gotten with that argument.  So remember this my friends, if the ladder is misplaced, even by the plaintiff, such that it slips, teeters, shifts, adjusts or just decides to move a little, and the plaintiff falls, you have a 240(1) case on your hands.  Not to rain on everyone’s parade completely, we have seen some language coming out of the second department indicating to us that there may be a leaning towards the position that if the plaintiff placed the ladder that sole proximate cause may come into play at some point, but not yet.  That said I will never give up arguing the position, and someday I just might be right.

Aramburu v Midtown W.B., LLC
March 12, 2015
Appellate Division, First Department

Aramburu testified that he and a coworker were allegedly each using both hands to guide a heavy reel of wire covered in cardboard down a plywood ramp.  Aramburu walked backwards in front of the wheel while his coworker walked behind when he slipped and fell on a two-foot patch of ice on the ramp, causing his coworker to lose control of the reel which rolled over Aramburu.  Defendants Midtown West B d/b/a Rockrose GC, Rockrose Construction Corp. and Rockrose Construction Projects (collectively “Rockrose”) were responsible for maintaining the ramps.

The trial court granted Aramburu’s motion for partial summary judgment on his Labor Law § 240(1) claim against defendants.  The trial court also denied defendants’ motion to dismiss the § 200 and common-law negligence claims, denied defendants’ motion for summary judgment against third-party defendant Five Star, Aramburu’s employer, on its contractual indemnification claim, and denied Five Star’s motion to dismiss the third-party complaint.      

Labor Law § 240(1) (DRA)

The First Department affirmed the trial court’s decision as Aramburu submitted undisputed proof that his accident was a “direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.”  The Court further held that he also met his burden in establishing that he lacked an appropriate safety device, here pulleys or ropes, that could have prevented his fall rather than using himself and his coworker as the securing device. 

The Court noted that summary judgment was still appropriate where the injuries resulted in part from slipping on ice, since they were also proximately caused by the lack of any safety device to prevent him from being struck by heavy equipment falling from a significant elevation above him.

PRACTICE POINT:  Does this case remind anyone else of the Runner case.  The object did not fall, just ran over the plaintiff while rolling down an incline.  Here the safety device which failed or was missing was the lack of any method of securing the reel of wire and preventing it from rolling over the plaintiff.   

 

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

The First Department affirmed denial of defendants’ motion to dismiss Aramburu’s common-law negligence and § 200 claims because it was undisputed that Rockrose were responsible for maintaining the ramps. Defendants failed to meet their initial burden to demonstrate an absence of material issues of fact as to whether they had notice of the icy condition which caused the incident, since they failed to present evidence of any cleaning or maintenance schedule with respect to the ramps. 

Further, the Court found triable issues of fact as to whether defendants had notice of a recurring hazardous condition which went routinely unaddressed The minutes of Five Star's safety meetings, which were regularly provided to Rockrose, showed that slippery ice on ramps was repeatedly raised as a hazard for two months leading up to the inccident. Although Rockrose's foreman stated Rockrose used salt and calcium chloride as de-icing agents, he stated they were used only when it was necessary to shovel snow, not in conditions of lighter snow or rain. The foreman's testimony to the effect that he had no notice of recurring ice on ramps merely raises a question of fact, in light of his testimony that Rockrose conducted regular walk-throughs.

Indemnity Issues in Labor Law (SEP)
It follows, then that inasmuch as Rockrose’s negligence remained in doubt they were not entitled to an award of contractual indemnification.  The court noted that the loss fell within the breadth of the indemnity agreement at issue, but Rockrose obviously cannot recover for any percentage of negligence attributable to it. 
Further, Five Star’s motion to dismiss the common law indemnity should have been granted.  Although expert’s concluded that plaintiff had sustained a traumatic brain injury, there was no evidence that he was “no longer employable in any capacity.”  As such, there was no grave injury and Section 11 applied to bar the claim.
Pol v City of New York
March 17, 2015
Appellate Division, First Department

Pol allegedly was injured during the course of replacing a component of the subway track system that allows trains to switch tracks.  The trial court granted defendant’s motion to dismiss the Labor Law § 241(6) claim predicated upon a violation of Industrial Code regulation § 23-3.3(c) but denied the motion to dismiss based on regulation § 23-1.10(a).

Labor Law § 241(6) (JAE)
The First Department affirmed dismissal of that part of the Labor Law § 241(6) claim predicated upon 12 NYCRR 23-3.3(c) because the work Pol was engaged in did not constitute demolition work as defined by the Industrial Code (see 12 NYCRR 23-1.4[b][16]), and therefore, 12 NYCRR 23-3.3(c) is inapplicable.
The claim predicated upon 12 NYCRR 23-1.10(a) should have also been dismissed because the tools being used by Pol and his partner had flat and/or round edges, and thus, that section of the Industrial Code was deemed to be inapplicable to the facts of this case.
Czajkowski v City of New York
March 17, 2015
Appellate Division, First Department
Following his supervisors’ instructions, plaintiff used a sawzall to remove window frames by removing the bottom half first and then the top.  He allegedly was injured when the unsecured top half of the windows he was removing fell out of the wall and crushed his hand.  The trial court granted him partial summary judgment on his Labor Law § 240(1) claim, and denied defendants’ cross-motion to dismiss the §§ 200 and 241(6) claims.
Labor Law § 240(1) (DRA)
The First Department affirmed the trial court’s decision because the evidence established that “plaintiff was not provided any safety device to brace or otherwise support the window while it was being removed in the manner that he was instructed.” 
PRACTICE POINT:Do not miss the point of this case.  Here the object which fell on the plaintiff causing injury was not the portion of the window he was actually removing but rather the top portion of the window which, in the opinion of the court, should have, and could have, been secured.  Had the portion of the window actually being removed fallen on the plaintiff I feel the decision would have gone the other way as it is not possible to secure that which is being removed. 
Labor Law § 241(6) (JAE)
The Court erred, however, in not dismissing plaintiff’s Labor Law § 241(6) claim because the Industrial Code sections alleged in support of liability were inapplicable to the instant action.
Labor Law § 200 and Common-Law Negligence (VCP)
The First Department also ruled that the trial court erred in not dismissing plaintiff's Labor Law § 200 claim as there was no evidence that defendants controlled the means and methods of plaintiff's work to support § 200 liability.
Becerra v Promenade Apts. Inc.
March 19, 2015
Appellate Division, First Department

Becerra, a demolition worker, testified that a foreman provided him with an angle grinder that did not have a safety guard, and instructed him to perform certain work despite its absence.  He allegedly was injured when his hand came into contact with the grinder while using it to cut through cement. 

In support of his Labor Law § 241(6) claim predicated upon a violation of Industrial Code regulation § 23-1.5(c)(3), Becerra argued that because other grinders on site had guards, the instruction that he use the grinder without its guard, and the failure to remove the unguarded grinder from the work site, constituted a violation.  The trial court determined that regulation § 23-1.5(c)(3) was too general, and granted defendants’ motion to dismiss.

Labor Law § 241(6) (JAE)
The First Department determined that the trial court erred in finding § 23-1.5(c)(3) too general to support the § 241(6) claim.  Industrial Code (12 NYCRR) § 23-1.5(c)(3) provides, “All safety devices, safeguards and equipment in use shall be kept sound and operable, and shall be immediately repaired or restored or immediately removed from the job site if damaged.”   
In considering this issue, the Fist Department compared § 23-1.5(c)(3) to § 23-9.2(a).  The third sentence of 12 NYCRR 23-9.2(a), says, “Upon discovery, any structural defect or unsafe condition in such equipment shall be corrected by necessary repairs or replacement.”  The Court of Appeals in Misicki v Caradonna found that this sentence imposed an affirmative duty, rather than merely reciting common-law principles.  The First Department found that 2 NYCRR 23-1.5(c), has a structure similar to 12 NYCRR 23-9.2(a).  The first two sentences of section 23-9.2(a) and the first two paragraphs of § 23-1.5(c) employ general phrases (e.g., “good repair,” “proper operating condition,” “sufficient inspections,” “adequate frequency”) while the third sentence and paragraph mandate a distinct standard of conduct, rather than a general reiteration of common-law principles, and are precisely the type of concrete specifications’ required.  Since the final paragraph of § 23-1.5(c) was, in the Court’s view, functionally indistinguishable from the third sentence of 9.2(a), in that both mandate a distinct standard of conduct, the First Department found the Court of Appeals’ reasoning in Misicki applies here, and reversed the motion court. 
Justice Leland G. DeGrasse authored the lone dissent.  He submitted that where § 23-1.5(c)(3) provides that “[a]ll safety devices, safeguards and equipment shall be kept sound and operable, and shall be immediately repaired or restored or immediately removed from the job site if damaged,” plaintiff’s only theory of liability, which the majority implicitly adopts, is that “[t]he section was violated as the angle grinder was not provided with the proper guarding as required in § 23-1.5.”
As a matter of statutory and regulatory construction, Justice Degrasse disagreed with the result reached by the majority arguing that it is settled law that to establish liability under § 241(6), a plaintiff is required to establish a breach of a provision of the Industrial Code which gives a specific, positive command.  § 23-1.12(c)(1) is the only Industrial Code provision that addresses the guarding of portable, hand-operated power-driven tools and it applies to only saws. By contrast, the Industrial Code sets forth no requirement regarding the guarding of grinders.   
Moreover, § 23-1.5(c)(3), upon which plaintiff based his claim, is completely silent with respect to guarding.   Had the Industrial Code contemplated a requirement that grinders be guarded there would be a specific provision to that effect. Citing the statutory cannon that “what is omitted or not included was intended to be omitted or excluded,” Justice Degrasse concluded that the provision was inapplicable regardless of whether § 23-1.5(c)(3) was treated as a general or specific provision.  
Of note, the majority addressed this argument submitting that section 23-1.5(c) is explicitly concerned with the “[c]ondition of equipment and safeguards,” and prohibits the use of “equipment which is not in good repair and in safe working condition” (§ 23-1.5[c][1]). Therefore, the directive in paragraph (3) that “[a]ll safety devices, safeguards and equipment in use shall be kept sound and operable, and shall be immediately repaired or restored or immediately removed from the job site if damaged” provides a basis for liability under Labor Law § 241(6) as long as such angle grinders were ordinarily or originally provided with safety guards.
Ortiz v Burke Ave. Realty, Inc.
March 19, 2015
Appellate Division, First Department

Plaintiff was standing on an extension ladder performing work for several minutes when the feet of the ladder suddenly slid backwards away from the wall and fell.  The trial court denied plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim.   

Labor Law § 240(1) (DRA)

Defendants argued that plaintiff slipped, and that his own actions caused the ladder to move.  The First Department held that plaintiff was not required to show that the ladder was defective to meet his burden, and rejected defendants’ arguments, which were unsupported and based on speculation.  The Court also held that the fact that plaintiff did not ask his brother to hold the ladder also does not raise a triable issue of fact as to sole proximate cause.  Thus, the Court reversed the trial court’s decision and granted plaintiff’s motion.

PRACTICE POINT:  When the ladder the plaintiff is working on moves causing him to fall, the plaintiff will win every time absent a sole proximate cause defense.  As we have not had one yet this month, I will review the elements of the defense.  There needs to be an AVAILABLE, and APPROPRIATE safety device that the plaintiff was INSTRUCTED TO USE or knew he was expected to use and then, for no good reason failed to use or misused.

 

 

Beasock v Canisius Coll.
March 20, 2014
Appellate Division, Fourth Department

Beasock filed a common-law negligence and Labor Law action against defendant Canisius College, who filed a third-party complaint against Active for contractual indemnification based on a contract between Active and Lehigh Construction.  The trial court granted Canisius College’s motion for partial summary judgment on that claim, and denied Active’s cross-motion to dismiss the third-party complaint.
 
Indemnity Issues in Labor Law (SEP)

Canisius entered into a construction contract with Lehigh.  Lehigh, in turn, entered into a contract with Active.  The Lehigh/Active contract was executed years prior to the incident in question, and did not identify Canisius as an intended indemnitee.  Rather, the contract merely included the generic term “owner” as an indemnitee in the relevant indemnification clause.  Active opposed Canisius’ argument on the basis that it could not establish Active had an obligation to indemnify it. 

The Appellate Division disagreed, and stated that it was inconceivable that Active would not perform its work for the benefit of an “owner.”  As such, Canisius as “owner” of this project was entitled to intended third-party beneficiary status under the contract.
Masiello v 21 E. 79th St. Corp.
March 24, 2015
Appellate Division, First Department

Masiello fell from a ladder that was placed in a dip on the floor, which plywood had just been placed underneath as part of renovation work.  The trial court denied third-party defendant Fine-Line’s motion to dismiss the complaint alleging common-law negligence and violations of Labor Law §§ 240(1), 241(6) and 200, as well as 23 East 79th's third-party complaint alleging contractual indemnification.

Labor Law § 240(1) (DRA)

The First Department held the trial court correctly declined to dismiss this claim since the ladder was not secured properly to insure it would remain steady.

PRACTICE POINT:  When the ladder is not properly places, as in Dailey above, of properly secured is in the instant case, and it shift of moves causing the plaintiff to fall, it is going to be a 240(1) case.  Identify these cases early and seek to settle them before you spend too much time on them.  That said always look for the potential defenses by asking the same 4 questions.  First, is the plaintiff a person the statute sought to protect.  Second, is the defendant within the class of appropriate defendants?  Third, is the overall project the type of project the labor law applies to and fourth, we the activity the plaintiff was engaged in at the time of the accident an activity protected within the statute.  This should be the first analysis done when the case first resents itself. 

Labor Law § 241(6) (JAE)

The trial court also correctly declined to dismiss the Labor Law § 241(6) claim insofar as it was predicated on alleged violations of Industrial Code (12 NYCRR) § 23-1.21(b)(4)(ii) and (e)(3).  However, Masiello abandoned the § 241(6) claim insofar as it was predicated on alleged violations of any other Industrial Code provisions.

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

The First Department affirmed that the trial court correctly declined to dismiss the Labor Law § 200 and common-law negligence claims. Although 23 East 79th did not exercise supervisory control over Masiello’s work, issues of fact remain whether 23 East 79th or its agent created or had actual or constructive notice of the alleged dip in the floor, particularly since the floor and plywood underneath had just been replaced as part of the renovation.

Indemnity Issues in Labor Law (SEP)

With respect to Fine-Line’s motion for summary judgment against the common law indemnification claim, the Court noted that the Record clearly established that plaintiff had no sustained a grave injury. Where plaintiff was Fine-Line’s employee, it follows that the exclusivity of workers’ compensation per Section 11 applied to dismiss the claim. 

With regard to the contractual indemnity claim posed by 23 East 79th, the Fine-Line argued that no contract existed which also contained an indemnification clause.  In opposition to the motion, however, 23 East 79th produced such a copy, executed by Fine-Line before the loss.  As such, the Court found, at a minimum, a question of fact existed as to Fine-Line’s indemnity obligations.

Mora v Sky Lift Distrib. Corp.
March 24, 2015
Appellate Division, First Department

Mora allegedly was injured during the removal of a fan cowl cover form a cooling tower.  Defendant 1200 Fifth had retained Mora’s employer, nonparty Par Mechanical (“Par”), to dismantle the old cooling tower on the roof of its building, install a new one and dispose of the old one.  Par’s Purchase Order with defendant Skylift required removal of the old tower, rig the new one and have the old tower “moved” for disposal. 

At the time of Mora’s incident, the tower had been removed and placed on a truck.  After a Par employee pushed the cover off the tower, the cover bounced off the truck and struck Mora.  The trial court denied 1200 Fifth’s motion to dismiss the Labor Law § 240(1) claim.  Upon reargument, the trial court granted Skylift’s motion to dismiss the complaint against it, and granted Mora’s motion against 1200 Fifth for summary judgment on his § 240(1) claim.     

Labor Law § 240(1) (DRA)

1200 Fifth argued that it was no longer an “owner” under the statute because Mora’s activity, the removal of the tower from its roof, had been completed at the time of the incident, and the removal of the cover constituted a separate phase of work.  The First Department rejected 1200 Fifth’s position, holding that Mora’s incident resulted from an elevation-related risk encompassed by the statute, and that the 250-pound cover constituted “a load that required securing for the purposes of the undertaking.”   

PRACTICE POINT:  Here, the argument that the defendant was no longer the owner failed as the operation being undertaken, the removal of the cowl, was a part of the entire job and could not be separated to change ownership.  The cowl which fell was also a piece which needed to be secured.  Remember that no longer does the falling object need to have been in the process of being hoisted but rather can be any object which should have been or could have been secured. 

 

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

The First Department affirmed that the trial court correctly dismissed the Labor Law § 200 and common-law negligence claims against Skylift because although the PO is ambiguous as to whether Skylift was responsible for removing the cover in disposing of the cooling tower, the record showed the Skylift did not have “the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition.”

Further, although testimony of Mora and his foreman shows that Skylift asked the foreman to have the cover removed, to prevent it from hitting the traffic lights during transport, Mora and other Par employees performed the task solely pursuant to their foreman’s instruction.

Dorador v Trump Place Condomimium
March 24, 2015
Appellate Division, First Department

Dorador was injured while applying masking tape to windows on a scaffold six to seven feet high in preparation for stripping and relacquering of the brass on the façade of defendant Trump’s building.  The trial court granted Dorador’s motion for partial summary judgment on his Labor Law § 240(1) claim, and denied Trump’s cross-motion to dismiss that claim. 

Labor Law § 240(1) (DRA) 

The First Department held that at the time of the incident, Dorador was engaged in a “cleaning” activity under the statute because his activity “is not the type of task that is performed on a relatively frequent and recurring basis as part of ordinary maintenance” and his work also “involved a significant elevation risk.”

PRACTICE POINT:  This is a perfect opportunity to review what the Court of Appeals said in the Soto case about what cleaning is and what is not.  The standard, per the COA for commercial cleaning to be exempt from the labor law is if the cleaning is 1) routine, 2) if it does not requires special equipment, 3) generally does not involve an elevation risk and 4) is not related to any ongoing construction, renovation, painting, alteration or repair project.

Phillips v Powercrat Corp.
March 24, 2014
Appellate Division, First Department

Phillips allegedly was injured in a fall from an unsecured ladder while working in a warehouse, where his job was to “clean out, remove machines, break down structures … and ship them out.”  This work included removal of heavy machinery and shelves that ran from floor to ceiling across 3 second-floor walls, each 50 feet long and 8 feet high, and were bolted to the floors and walls. 

The trial court denied Phillips’ motion for summary judgment on his Labor Law § 240(1) claim, and granted defendant Powercrat, KMCO and Von Rohr’s motions to dismiss that claim as well as the § 241(6) claim.

Labor Law § 240(1) (DRA)

The First Department held that Phillips was engaged in demolition work because he was dismantling the shelving, which involved the use of impact wrenches and sawzalls to cut the bolts.  Removed material, including shelving, were heavy and had to be loaded in cages, which were then lifted by a pallet jack and lowered to the first floor with a forklift.  Accordingly, the Court held that the work was a “sufficiently complex and difficult task to render the shelving a ‘structure’ with the meaning of Labor Law §§ 240(1) and 241(6).” 

In opposition, the Court rejected defendant’s sole proximate cause argument because there is no evidence that Phillips received any “immediate and active direction” not to use the ladder, as required to establish a recalcitrant worker defense. 

PRACTICE POINT:  Demolition is an enumerated task under labor law section 240(1) and it seems to that removing large heavy shelving by cutting it from the wall with a sawzall and moving it with a forklift would qualify as demolition.  I have approached this type of case by finding out what is being done with the parts being removed.  If they are being reinstalled somewhere else you have a fighting chance that it is not demolition but if the next stop is the junk yard for salvage, it is likely demolition.  Do not outsmart yourself either, thinking that by getting around demolition that you have a great defense, do not forget that an alteration also qualifies, and that was described in the Joblon as making a significant physical change to the configuration or composition of the building or structure.  This case may have qualified there as well.

 

Lombardo v Tag Ct. Sq., LLC
March 25, 2015
Appellate Division, Second Department

Lombardo allegedly was injured when he slipped and fell while working on a premises owned by defendant Tag.  Defendants Pavarini McGovern and Structure Tone were the construction managers.  Lombardo’s employer, Spectrum, had been hired by one of the construction managers to perform painting work.  Tag had hired Geiger to perform the exterior façade waterproofing and roofing work on the premises. 

The trial court denied Geiger’s motion for summary judgment dismissing the complaint alleging common-law negligence and Labor Law §§ 241(6) and 200 claims.  The trial court also denied Spectrum’s motion to dismiss Tag’s third-party complaint for contractual indemnification.   

Labor Law § 241(6) (JAE)

The Second Department held that that the trial court erred in denying those branches of Geiger’s motion dismissing the causes of action alleging a violation of Labor Law § 241(6) insofar as asserted against it.   Geiger made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that it did not exercise supervisory control over Lombardo’s work or have the authority to insist that proper safety practices be followed.  In opposition, Lombardo, the owner, and the construction managers failed to raise a triable issue of fact.

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

The Second Department also reversed, finding that the trial court erred in denying those branches of Geiger's motion for summary judgment dismissing the Labor Law § 200 claim because Geiger made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that it did not exercise supervisory control over Lombardo’s work or have the authority to insist that proper safety practices be followed.

However, the trial court properly denied that branch of Geiger's motion which was for summary judgment dismissing the cause of action to recover damages for common-law negligence insofar as asserted against it. A subcontractor may be held liable for negligence where the work it performed created the condition that caused the plaintiff's injury even if it did not possess any authority to supervise and control the plaintiff's work or work area.  Here, there are triable issues of fact as to whether employees of Geiger created the dangerous condition that allegedly caused the injured the incident.

Indemnity Issues in Labor Law (SEP)

Spectrum moved to dismiss both the common law and contractual indemnification claims against it.  With regard to common law, Spectrum established that plaintiff (Spectrum’s employee) did not sustain a grave injury.  As such, Section 11 precluded the claim.

The contractual indemnification claim was likewise dismissed because the scope of work identified in the Spectrum trade contract was limited to painting.  Here, it was undisputed that plaintiff was engaged in applying Stucco. Absent a clear change the contract, the indemnity provision must be strictly construed.  That is to say that because the work was outside the scope of the contract, the clause did not apply.

Matter of Spelman v City of New York
March 26, 2015
Appellate Division, First Department

The trial court denied petitioner’s application for leave to serve a late notice of claim under General Municipal Law § 50-e.  On appeal, the First Department affirmed because although the absence of a reasonable excuse for the delay is not, standing alone, fatal to the application, here petitioner neither demonstrated that (1) respondents received actual knowledge of the facts constituting his claim of negligence and Labor Law violations within the statutory period, or (2) the absence of prejudice resulting from the delay.

PRACTICE POINT:  The law regarding notices of claim may not seem relevant to a primarily labor law attorney but remember that schools other municipal building are often having construction type work done on them and without an appropriate notice of claim filed within the prescribed time limit a condition precedent has not been met and the owner will not be a defendant in the law suit where they are a sitting duck, as the owner, if the notice of claim is timely filed.

Jordan v City of New York
March 26, 2015
Appellate Division, First Department

Jordan was allegedly injured when he was struck by a rail that fell from a stack 2½-3 feet high.  The trial court granted Jordan’s motion for summary judgment on his Labor Law § 240(1) claim.

Labor Law § 240(1) (DRA)

The First Department held that the trial court properly rejected defendant’s argument that the statute did not apply because the rail that struck Jordan did not fall from a “physically significant elevation differential.”  The height of the stack was not de minimis because it weighed 1500 pounds and “the amount of force it was capable of generating, even over the course of a relatively short distance.”

The Court also rejected defendant’s argument that Jordan failed to identify a necessary and expected safety device, as he demonstrated defendant could have used secured braces, stays, or even additional lines to stabilize the stacked rails.

PRACTICE POINT:  It is no longer a matter of how far it falls, but seemingly how much damage it is capable of doing when it hits the plaintiff.  Back to junior high physics, F=MA or force is equal to mass times acceleration, Newton’s second law of motion.  Here, the force, of how hard it hits the plaintiff is controlled by mass of the object, it weight for our purposes here times the acceleration of the falling object which is 9.8 meters per second per second of how fast it was going when it hit the plaintiff.  As the force must increase with the mass of the object (the acceleration of gravity is for our purposes a constant here) the heavier the object the more force it will have when it strikes the plaintiff and thus the more damage it will do.  That ends this physics lesson from a former engineering student, and it is mostly correct.

 

 

Miller v Webb of Buffalo, LLC
March 27, 2014
Appellate Division, Fourth Department

Miller brought this Labor Law and common-law negligence action when he fell from a first floor windowsill of a building undergoing renovation.  He was employed by a subcontractor hired by defendant Time Warner to perform cable installation work, and was instructed to run a ground wire from a room on the first floor to a lockbox on the exterior of the building,  However, he could not find anyone with a key so he used a ladder and entered through a window. 

While inside, his coworkers removed the ladder and told him it would be returned in a couple of minutes so he decided to straddle the windowsill while he waited.  As he sat on the windowsill, he leaned out to say something to his coworkers, lost his balance and fell to the ground.  The trial court denied defendant Burke Homes’ motion and the cross-motions of Webb of Buffalo and Time Warner seeking to dismiss the complaint and cross-claims.

Labor Law § 240(1) (DRA)

The Fourth Department held defendants met their burden of establishing that Miller’s conduct was the sole proximate cause of the accident because there was no causal relationship between any duties owed to Miller and his injuries, and that they could not have reasonably foreseen that a person similarly situated would not wait for the ladder inside the building.  The Court determined that before Miller decided to straddle the windowsill, Miller “was not in an emergent situation.  He was in a position of absolute safety, although subject to inconvenience.” 

PRACTICE POINT:  There is no surprise here.  The plaintiff, in a completely safe location, takes it upon himself to straddle the window sill and falls out the window and then sues claiming that here was no safety device to protect him from his own hair brained idea.  This is the poster child for sole proximate cause.  My biggest problem is that after your read this case go back up to the Dailey case and try and explain to your client why it is different where the plaintiff set up the ladder which moves or where he sits on the window sill and falls.  There may be a legal difference but explaining it to the owner of the building can be difficult.

 

Bausenwein v Allison
March 27, 2015
Appellate Division, Fourth Department

Plaintiff was working on a construction project on property owned by defendant Timothy Allison when he was injured.  He brought this common-law negligence and Labor Law §§ 240(1), 241(6) and 200 action.  The trial court granted Allison’s motion to dismiss the complaint. 

Labor Law § 240(1) (DRA)

The Fourth Department held that Allison met his burden in proving that he did not direct or supervise plaintiff’s work by submitting plaintiff’s deposition testimony who, when asked if he knew the identity of the owner of the house on which he was working, answered: “I met him once or twice, but I don’t recall his name.”  Plaintiff also testified Allison did not given him any direction as to how to do his work. 

In opposition, plaintiff relied mainly on the fact that Allison was identified in the construction contract as the general contractor, but the Court held that the title was not by itself dispositive.  The Court affirmed the trial court’s decision based on the homeowner’s exemption because even though Allison had prior experience as a plaintiff in an unrelated Labor Law action and was aware of the need for safety devices, his actions here “were those of a legitimately concerned homeowner and not those of a supervisor.” 

However, the Court held the evidence submitted by 299 Main Street in support of their motion raised an issue of fact whether they had the ability to control plaintiff’s work because they were identified in the contract as the “construction manager”, who “may be vicariously liable as an agent of the property owner … where the manager had the ability to control the activity which brought about the injury.” 

PRACTICE POINT:  So the property owner did not control the work.  I advise you all to leave the house whenever anyone is on a ladder at your house so there can be no question but that you did not supervise, direct or control the work of anyone working on your one or two family homes.  As to he construction manager if the contract provides you with the authority to control the work, you are a proper labor law defendant, regardless of what title you give yourself.  Always read those contracts carefully.

Labor Law § 241(6) (JAE)

The same holding applied to the § 241(6) claim.

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

The Fourth Department affirmed dismissal of the Labor Law § 200 and common-law negligence claims against the homeowner because Allison did not direct or control plaintiff's work.  As for the 299 Main Street defendants, however, the trial court erred in denying their motion insofar as it sought dismissal of those claims because they established as a matter of law that they did not actually direct or control the work that brought about plaintiff's injuries, and in response plaintiff failed to raise an issue of fact.

 

 

Buhr v Concord Sq. Homes Assoc., Inc.
March 27, 2015
Appellate Division, Fourth Department

Buhr was allegedly injured when he was assisting in the repair of a broken water pipe at an apartment complex owned by defendant.  At the time of the incident, Buhr was climbing a ladder out of the excavation when the backhoe bucket swung toward him, struck him in the leg, and pinned his leg against the side of the excavation. 

The trial court granted that portion of defendant’s cross-motion to dismiss the Labor Law § 241(6) action predicated on regulation § 23-4.2(k), and denied Buhr’s motion seeking partial summary judgment to dismiss that claim under § 23-9.4(e)(1) and (h)(1).

Labor Law § 241(6) (JAE)

The Fourth Department concluded that the trial court properly granted that part of defendant’s cross-motion seeking to dismiss the Labor Law § 241 (6) claim predicated on the alleged violation of 12 NYCRR 23-4.2 (k) because that regulation is not sufficiently specific.    

However, the Court concluded that the trial court erred in granting that part of the cross-motion seeking summary judgment dismissing the § 241 (6) claim insofar as it is based upon the alleged violation of 12 NYCRR 23-9.4 (e) (1) and (h) (1).  Contrary to the trial court’s determination, the testimony of the witnesses to the accident established that the backhoe was being “used for material handling” within the meaning of that regulation.  In addition, the eyewitness testimony raised triable issues of fact concerning how the accident occurred, whether the regulations at issue were violated, and whether Buhr was negligent.

Carr v McHugh Painting Co., Inc.
March 27, 2015
Appellate Division, Fourth Department

Carr allegedly was injured while installing a door on a single-family residence under renovation.  He was employed by defendant general contractor McHugh as a carpenter hired to perform exterior renovation work.  Carr was installing a door while standing on a raised scissor lift with a coworker with a 20-24 inch gap.  As Carr lifted the door and was moving it across the gap, he felt a “twinge” or “pop” in his back. 

The trial court denied McHugh’s motion to dismiss the Complaint alleging common-law negligence and violations of Labor Law §§ 240(1), 241(6) and 200.  The trial court also granted Carr’s cross-motion for summary judgment on the § 240(1) claim, and allowed him to add additional Industrial Code sections to support his § 241(6) claim.     

Labor Law § 240(1) (DRA)

The Fourth Department stated that the “extraordinary protections of Labor Law § 240(1) extend only to a narrow class of special hazards, and do not encompass any and all perils that may be connected in some tangential way with the effects of gravity.”  Here, Carr was injured while moving a heavy door across a lateral gap; the door did not fall or descend even a de minimis distance owing to the application of the force of gravity upon it. 

Thus, the Court held the hazard at issue here, i.e. lifting or carrying a heavy object across a lateral gap, even while positioned at a height, is a “routine workplace risk” of a construction site and not a “pronounced risk arising from construction work site elevation differentials.”

PRACTICE POINT:  The way I like to look at these cases it to see if the same injury woud have resulted if the plaintiff was at ground level.  If the answer is yes, then it is not a labor law case. 

 

Labor Law § 241(6) (JAE)

The Fourth Department also agreed that the trial court erred in granting that part of Carr’s cross-motion seeking leave to amend his response to defendant’s interrogatories to allege a violation of 12 NYCRR 23-9.6 (e) (1). While it is well-settled that leave to amend shall be freely given in the absence of prejudice to the opponent, permission to amend should be denied where the proposed amendment clearly lacks merit. 

The Court found that the Industrial Code regulation at issue was factually inapplicable to the circumstances surrounding the happening of the accident and thus does not support a claim under the statute.  Inasmuch as Carr’s remaining claimed violations of the Industrial Code were dismissed by stipulation of the parties, the Court modified the prior order by dismissing this claim against defendant in its entirety.

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

The Fourth Department affirmed the denial of the defendant's motion seeking summary judgment dismissing the Labor Law § 200 claim and common-law negligence cause of action. Here, Carr’s incident resulted from the manner in which the work was performed, and it is undisputed that defendant had the authority to supervise and control the methods and manner of Carr’s work, and that it in fact exercised such supervisory control. Contrary to defendant's contention, the defendant failed to establish as a matter of law that the risk of injury owing to moving a heavy door across a two-foot gap while at an elevated height with the assistance of a single worker was “inherent in plaintiff's work.”

 

Terepka v City of New York
March 31, 2014
Appellate Division, First Department

Terepka allegedly injured his back while performing exterior masonry work at a job site.  He testified that he was injured while raising a cement-filled bucket from the ground to his position on a scaffold, 20-25 feet above ground, with an electrical cord, which he was forced to use as defendants did not provide him with other equipment to carry the bucket.  The trial court granted defendants’ motion for summary judgment dismissing the Labor Law § 240(1) claim but denied their motion to dismiss the § 241(6) predicated on regulation §23-6.1(h).

Labor Law § 240(1) (DRA)

The First Department held that the City failed to prove that Terepka’s injuries were not caused by the type of elevation-related hazard under the statute.  The Court noted that the inconsistencies between Terepka’s testimony at his 50-h hearing and deposition do not alter the conclusion because the injuries would fall within the coverage of the statute whether he injured his back while simply raising the cement-filled bucket or while trying to grasp the scaffold to prevent falling off while raising the bucket. 

PRACTICE POINT:  The bottom line here is that plaintiff was not provided an appropriate safety device to raise the bucket and, as a result, he was injured.  This case was handled by the first department as a falling object case citing Runner.  The injury was caused by the “"the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential”.

Labor Law § 241(6) (JAE)

Terepka conceded that the provisions of the Industrial Code he cited in his complaint and bill of particulars were inapplicable and that his § 241(6) claim insofar as it was predicated on those provisions should be dismissed. The remainder of the § 241(6) claim, predicated on Industrial Code (12 NYCRR) § 23-6.1(h), should also have been dismissed because Terepka did not allege a violation of that provision until he improperly submitted a supplemental bill of particulars six months after the note of issue was filed and without leave of the court.

 

 

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.

Vasquez v FCE Industries, Ltd., No. 07-CV-1121(FB)(JO). (E.D.N.Y. 2008);
Harris v Hueber-Breuer Const. Co., Inc., 67 AD3d 1351, 890 NYS2d 235 (4th Dept 2009);
Urban v No. 5 Times Square Dev., LLC, 62 AD3d 553, 879 NYS2d 122 (1st Dept 2009);
Vasquez v GMD Shipyard Corp., 582 F.3d 293 (2d Cir. 2009);
Forschner v Jucca Co., 63 AD3d 996, 883 NYS2d 63 (2d Dept 2009);
Romeo v Property Owner (USA) LLC, 61 AD3d 491, 877 NYS2d 48 (1st Dept 2009);
Cordeiro v TS Midtown Holdings, LLC, 87 AD3d 904, 931 NYS2d 41 (1st Dept 2011);
Pietrowski v Are-East River Science Park, LLC, 86 AD3d 467, 928 NYS2d 266 (1st Dept 2011);
Fusca v A & S Const., LLC, 84 AD3d 1155, 924 NYS2d 463 (2d Dept 2011);
Landon v Austin, 88 AD3d 1127, 931 NYS3d 424 (3d Dept 2011);
Reavely v Yonkers Raceway Programs, Inc., 88 AD3d 561, 931 NYS2d 579 (1st Dept 2011);
Salazar v Novalex Contracting Corp., 18 NY3d 134 (2011);
Coleman v Crumb Rubber Mfrs., 92 AD3d 1128, 940 NYS2d 170 (3d Dept 2012);
Coaxum v Metcon Const., Inc., 93 AD3d 403, 939 NYS2d 415 (1st Dept 2012);
Norero v 99-105 Third Ave. Realty, LLC, 96 AD3d 727, 945 NYS2d 720 (2d Dept 2012);
Ventimiglia v Thatch, Ripley & Co., LLC, 96 AD3d 1043, 947 NYS2d 566 (2d Dept 2012);
Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139, 950 NYS2d 35 (1st Dept 2012);
Allan v DHL Exp. (USA), Inc., 99 AD3d 828, 952 NYS2d 275 (2d Dept 2012);
Parker v 205-209 East 57th  Street Assocs., LLC, 100 AD3d 607, 953 NYS2d 635 (2d Dept 2012);
Krawec v Kiewit Constructors Inc., No. 11 Civ. 0123, 2013 WL 1104414 (S.D.N.Y. 2013);
Alonzo v Safe Harbors of the Hudson Housing Dev. Fund Co., Inc., 104 AD3d 446, 961 NYS2d 91 (1st Dept 2013);
DeAndrade v K.J. Mountain Corp., No. 11 Civ. 00011, 2013 WL 6500233 (S.D.N.Y. 2013);
Kochman v City of New York, 110 AD3d 477, 973 NYS2d 114 (1st Dept 2013);
Francescon v Gucci America, Inc., 105 AD3d 503, 964 NYS2d 8 (1st Dept 2013);
Restrepo v Yonkers Racing Corp., Inc., 105 AD3d 540, 964 NYS2d 17 (1st Dept 2013);
Ramirez v Metropolitan Transp. Auth., 106 AD3d 799, 965 NYS2d 156 (2d Dept 2013);
Bisram v Long Island Jewish Hosp., 116 AD3d 475, 983 NYS2d 518 (1st Dept 2014);
Villabla v Robo-Breaking Co., Inc., No. 11-CV-1030, 2014 WL 4829280 (E.D.N.Y. 2014);

Lawler v Globalfoundries U.S., Inc., No. 112-CV-0327, 2014 WL 4900480 (N.D.N.Y. 2014).

Vasquez held reg did not apply to π injured after falling off a narrow ledge on a vertical wall b/c not falling into an “opening”; step/fall must be into an opening in the surface where a π is walking/working, not off the edge.
Harris held reg inapplicable to π injured while attempting to descend multi-level scaffold with allegedly inadequate planking b/c he did not fall into “hazardous opening.”
Urban held 10-12 inch gap π stepped into b/w entrance to catwalk & catwalk not “hazardous condition” or “condition” that “could cause tripping.”
GMD held reg inapplicable to decedent who fell while ascending wall of tank aboard a barge after he stepped off ladder onto angle irons b/c case law says reg does not apply to falls from ladders or staircases b/c not “hazardous opening.”
Forschner held reg inapplicable where π ascended ladder given to him to enable access to, and work atop, 4½ inch-wide beam; ladder taken by other workers for use and while kneeling on beam, joist gave way under pressure of π’s hand, causing him to fall 9 ft.
Romeo held reg inapplicable to work injured while walking on raised computer floor when he stepped on a floor tile that suddenly & unexpectedly dislodged, causing π’s foot to fall through opening created by missing tile; opening created by dislodge tile & 18-inch depth of subfloor did not present significant depth to warrant statutory protection.
In Cordeiro, court held issues of fact as to whether owner of building failed to adequately maintain hatchway through which elevator employee fell while preparing to remove elevator equipment from building precluding summary judgment.
Pietrowski held reg did not apply to π injured while descending from 5th floor of building located 70 inches below b/c fall not through “opening” under reg.
Fusca held neither π nor ∆ entitled to SJ when π fell from ground floor to basement through unguarded, unfinished stairwell while working in house under construction.
Landon held edge of a roof did not qualify as “hazardous opening”.
Reavely held reg violated where lack of a covering over a trench or safety railing was proximate cause of π’s injuries while assisting in installation of a hang wall at edge of building foundation.
Salazar held reg did not require property owner to cover/provide safety railing around trench into which π stepped while laying concrete floor in basement b/c covering opening would have been inconsistent with filling it, which was integral part of the job.
In Coleman, owner failed to establish opening in permanent floor created for machinery in lower floor 12 inches long by 16 inches wide was not “hazardous opening” under reg.
Coaxum held fact questions as to whether depth of open hole that sheetrock taper fell through was sufficient to render it falling hazard.
Norero held applied where π injured when he partially fell into unprotected opening in 5th floor of building.
Ventimiglia found triable issues of fact to π injured when he fell while working on a project.
Cappabianca reg inapplicable to π when his foot became stuck, causing him to fall off pallet on which he was standing while cutting bricks with electric saw at site where 3-6 inch openings b/w slats of pallet where not large enough for person to fit through.
Allan held reg inapplicable to “elevated hazard.”
Parker held reg inapplicable to π who fell after stepping through doorway which was several feet above level of lower roof b/c height differential b/w edge of doorway and lower level of roof does not constitute “hazardous opening.”
Krawec held reg inapplicable b/c hazard which π was injured was of neither the size nor nature under reg.
Alonzo held reg violated b/c hole π fell into was dangerous & unguarded.
DeAndrade found issue of fact as to ∆’s liability, including whether π was negligent in failing to use available safety devices – i.e., brace & covering for opening in the floor – and whether another ladder was available for use at time he fell of its while framing.
Kochman held reg inapplicable b/c π fell not through opening, but ceiling (roof of garage).
Francescon held reg did not apply to π injured while stepping off edge of work area to subfloor 12-15 inches below b/c not “hazardous opening.”
Restrepo held reg applied where access door to building’s attic not sufficiently substantial/adequately fastened to guard against opening while π was removing asbestos form attic after door opened downward, causing π to fall 12 feet below.
Ramirez held reg did not apply to catwalk on elevated subway where π injured when plank on catwalk which he was standing broke.
Bisram held inapplicable to area through which π fell, b/w beams, when beam beneath metal decking on which he was standing shifted b/c not “hazardous opening.”
Villabla held reg did not apply b/c hole π fell through only 14-16 inches.
Lawler held reg applied b/c hole was 24 by 24 inches wide and 3 feet deep; thus, hole was large enough for someone to fall through.
Brown held reg inapplicable to hole in flatbed truck b/c π could not have fallen through hole in its entirety.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

 

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