Labor Law Pointers - Volume IV, No. 6S

From the Editor:

Do you have a situation involving someone hurt in a fall, we love situations so you know who to call.   (Thanks Fran for the idea)
It gets my blood moving every time the Court of Appeals comes out with a labor law case, and today it was two for the price of one.
Newly appointed Judge Fahey had to sit out the Nicometi case as it came from the fourth when he was sitting so it is a 6 judge decision with Judge Lippman dissenting.
The cases are analyzed below, I am in a hotel in Disney with family sleeping on every flat surface, and some that are not really that flat, so I am typing the bathroom as quietly as I can so I am not going to have much else to say, but enjoy the cases. 



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

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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.

Nicometi v Vineyards of Fredonia, LLC
April 2, 2015
Court of Appeals

Nicometi was injured while installing insulation in the ceilings of a newly constructed apartment building owned by defendants.  To complete his task, Nicometi wore stilts to reach the 9 to 10 foot high ceiling.  He claimed that while swinging a hammer above his head, he stepped forward with one foot to affix insulation on the ceiling rafters and slipped on ice.  He testified that he knew about the ice before he fell but that his supervisor directed him to work regardless.  The supervisor, however, claimed that he, and not Nicometi, had first noticed the ice and told him not to insulate above the icy area. 

Nicometi moved for summary judgment on his Labor Law § 240(1) claim and defendant cross-moved to dismiss that claim, contending the injuries were caused by “an ordinary construction site danger”; ice and not an elevation-related hazard.  The trial court held the statute applied because the incident resulted from an elevation-related risk, and no question of fact existed on sole proximate cause despite the instruction not to insulate on the ceiling above the ice.

The Fourth Department’s majority and two-justice dissent agreed that the statute applied because the stilts elevating Nicometi “failed” as he worked and thus defendants’ motion was properly denied.  However, the court was split on sole proximate cause issue and the dissent concluded that Nicometi was still entitled to summary judgment.

Labor Law § 240(1) (DRA)

The Court of Appeals reversed based on Melber v 6333 Main St., 91 NY2d 759 (1998), where plaintiff was standing on stilts installing metal studs in the top of a drywall when he went to grab a tool.  He “tripped over electrical conduit protruding from the unfinished floor and fell” while walking.  The Court held “the protective equipment envisioned by the statute is simply not designed to avert the hazard plaintiff encountered here”; electrical conduit sticking out of the floor; and distinguished the same situation except for the fact that the stilts failed while plaintiff was installing the studs.   

The issue here is whether the hazard on the stilts was a separate hazard “wholly unrelated to the hazard which brought about the need for a safety device in the first instance.”  In Nieves v Five Boro A.C. & Refrig. Corp., 93 NY2d 914 (1999), plaintiff stepped off a ladder with one foot and tripped over a portable light, and the Court held the statute did not apply because the injury was caused by a “usual and ordinary danger” at the site “distinct and unrelated to the elevation-related risk that called for the ladder in the first instance.”  In Cohen, the Court of Appeals held that a plaintiff who tripped over the pipes and fell while descending a ladder was not entitled to statutory protections.

Here, the Court held Nicometi’s incident was caused by a separate hazard – ice – unrelated to any elevation risk.  The majority distinguished Striegel,where plaintiff fell because his foot slid down a roof 15-20 feet and the court held the hazard could have been avoided by the use of “toe boards” to provide a flat path for plaintiff to traverse. 

Thus, the Court held Nicometi could not recover here because his injuries resulted from a slip on ice, which is a separate hazard unrelated to the elevation risk that necessitated the provision of a safety device in the first place.  Chief Judge Lippman dissented, holding stilts placed on ice create the same “elevated-related risk” as to ladders and thus, the statute applies to Nicometi’s injuries. 

PRACTICE POINT:  This case allows us to explore a basic issue in labor law, was the injury brought on by the failure of absence of a safety device and was the risk which brought about the accident and injury the type that the statute was designed to protect against.  Here the risk that caused the fall and injury was the ice, a risk that had nothing to do with an elevation risk.  In fact the court stated that the stilts themselves did not have any defects and played no part in causing the fall in that the fall was caused solely by the ice. 
The dissent by Judge Lippman misses the point, holding that if the plaintiff had been on a ladder and the ladder placed on the ice it would have been a labor law case citing to Klein,  my opinion is that he misses the point that the plaintiff in Klein was on a ladder he placed on a slippery substance and when the ladder slid out he fell.  The instant case is different in that the stilts are not placed; they are simply a method of moving about the work site to work at a higher level, they are not “placed”.  Remember that 240(1) calls for the safety devices, and both ladders and stilts qualify, that they “shall be so constructed anywhere, placed and operated as to give proper protection to a person so employed”.  Thus, as the stilts are not placed, but are rather used to move about the site, the analogy to the ladder is not accurate. 


Saint v Syracuse Supply Co.
April 2, 2015
Court of Appeals

Saint was part of a three-person crew working to replace an advertisement on a billboard 59 feet from the ground, and composed of a two-sided metal frame constructed in an inverted “V” shape set on a metal tube embedded in the ground.  Each side of the frame is 14 X 48 feet in size, and covered by a series of panels secured to the frame by iron clips called “stingers.”  The billboard has catwalks workers access by a ladder elevated several feet from ground and attached externally to the metal tube.  All the catwalks have safety cables, but only the lower rear catwalks have a guardrail.

The new advertisement required attachment of additions to the frame, referred to as “extensions” and are plywood cutouts.  During Saint’s work, he used and operated a crane to raise the extensions onto the billboard’s lower outer catwalk.  Had the job gone smoothly, after the new advertisement was secure the crew would bolt the extensions’ angle irons to the stringers to hold them in place on the frame.  However, Saint fell while attempting to move the panels on the lower rear catwalk when a “strong gust of wind” caused the panel to strike his chest, knocking him ten feet below after he detached his lanyard from the catwalk’s safety cable to get around a crew member.

The trial court denied defendant’s motion to dismiss Saint’s Labor Law §§ 240(1), 240(2) and 241(6) arguing that Saint was not engaged in a covered activity.  Saint cross-moved for partial summary judgment on his §§ 240(1) and 241(6) claims.  The trial court denied both motions finding both provisions applied to Saint’s claims, but an issue of fact existed as to whether he was the sole proximate cause of his injuries for failing to reconnect his lanyard.   

The Fourth Department reversed and granted defendant’s motion, concluding that Saint’s work did not constitute altering the building or structure and was “more akin to cosmetic maintenance or decorative modification.”  The court also found Saint was not engaged in “construction” work within the meaning of § 241(6).

Labor Law § 240(1) (DRA)

Saint argued on appeal the statute applied because he physically altered the billboard by installing extensions that changed the physical shape of the structure.  Defendant responded that at the time of his fall, Saint was not engaged in the installation or removal of extensions and regardless, the work was not an alteration by changing advertisements which is routine maintenance, and any alleged change to the structure was not permanent.

The Court held Saint was engaged in work constituting an alteration under the statute, relying on Joblon’s definition that “altering … requires making a significant physical change to the configuration or composition of the building or structure.”  Here, Saint’s work involved attaching extensions that changed the dimensions of the billboards frame and transformed the shape to accommodate the advertisement’s artwork.  The court held the removal of panels was a prerequisite to the attachment of the extensions and thus, Saint’s work entailed a significant change to the billboard structure and did not involve simple tasks involving minimal work.

The Court further held the installation was not a “decorative modification” because the work entailed far more than a mere “change to the outward appearance of the billboard” as it required a change to the billboard’s size and an adjustment of the frame to accommodate the unique shape of the advertisement.  The Court distinguished Munoz v DJZ Realty, which held that an employee injured while working on a billboard was not involved in an “alteration” because the employee was applying pre-pasted sheets to a billboard and the court concluded the work merely “changed the outward appearance … but did not change the billboard’s structure.” 

Here, Saint’s work required attachment of metal bolts and attachment of the extension to the frame.  The court thus found that based on the nature of Saint’s work and that the attachment of extensions to the billboard affected a significant change to the structure, Saint’s work was “altering” within the meaning of the statute.

The Court also held it was error to dismiss the Labor Law § 240(2), requiring that “[s]caffolding or staging more than twenty feet from the ground or floor … shall have a safety rail of suitable material properly attached, bolted, braced or otherwise secured …”  Here, it was undisputed the billboard platform was 59 feet high and there was no safety railing around the subject catwalk.

PRACTICE POINT:  The point the court was careful to make here is that they are not modifying the status of the law with regard to the changing of the billboard sign, but that in a situation where the structure of the sign is changed, a significant change to the structure to use the Joblon language yet again for about the third time in as many days, and that is more than a cosmetic change.

Labor Law § 241(6) (JAE)

The Court also held that Saint was engaged in “construction work” under the statute, which is defined to include alteration of a structure under 12 NYCRR § 23-1.4(b)(13).  Here, Saint was altering the billboard by installing the extension at the time of his injury and therefore, his claim falls within the ambit of § 241(6).  The Court distinguished Hatfieldbecause Saint was altering the billboard’s dimensions in order to apply the advertisement rather than performing “maintenance of a building or structure outside of the construction context.”  Thus, the Court denied defendant’s motion to dismiss this claim. 

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

Labor Law Pointers

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]


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

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