Labor Law Pointers - Volume IV, No. 8

From the Editor:

Do you have a situation, we love situations.

This month I was doing a presentation on investigating a labor law claim for a 1b carrier when I was asked the question if a condo owner is having work done in their unit and there is a labor law claim against them do they get the benefit of the single or two family home exclusion. 

My immediate response was that I thought so, after all it makes sense, they own the condo, and if they reside there and did not exercise supervision, direction of control over the work being done in the unit, shouldn’t they be afforded the same protection given to an owner of a free standing home? 

Next I was said that if the work was being done in a common area would the exception apply, I was actually sure about that one having had several of those cases written up in labor law Pointers over the years, it does not and the condominium association is the owner of the common area and thus an appropriate defendant.

Next I was asked if the condo association was considered to be an owner for work done inside the condominium.  I knew that one as well, they are not, based on the Court of Appeals Guryev case we analyzed in 2013.  Here is that analysis by Jennifer Ehman, it is worth another read.
12/11/12          Guryev v. Tomchinsky
Court of Appeals of New York
Condominiums and their boards can breathe a sigh of relief as the Court of Appeals has determined they do not qualify as “owners” under the labor law.  The plaintiff sustained injury while using a nail gun to install base moldings in an apartment owned by Gregory and Marina Tomchinsky.   The apartment was located in a 47-story building, which was organized as a condominium.  Prior to the renovation of the Tomchinskys’ apartments, the board approved the project, as required by the condominium by-laws, subject to the terms and conditions of an Alteration Agreement entered into by Mr. Tomchinsky, as unit owner, and the board, as agent, for the building’s other unit owners. 
Plaintiff brought an action against the Tomchinskys, the condominium, the Board of Managers, and the board’s managing agent (collectively “the condominium defendants”).  In considering whether the condominium defendants qualified as “owners,” the Court first analyzed Labor Law § 241(6), which requires “owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work,” to provide reasonable and adequate protection and safety for workers and to comply with specific safety rules promulgated by the Commissioner of the Department of Labor. 
Plaintiff took the position that because the condominium owned the land beneath the building, and the board was its agent, they were proper defendants.  In support, plaintiff relied on Gordon v. Eastern Ry. Supply, a case in which the plaintiff was injured while cleaning the exterior of a railroad car on property leased by Eastern.  In that case, the court found that the presence of the railway car on Eastern’s property was the direct result of its action and established a sufficient nexus for liability to attach to it as owner.    
Here, however, the Court found that there was no lessor-lessee relationship between the condominium and the Tomchinskys.  The Tomchinskys owned the apartment in fee simple absolute, and the apartment was separate and apart from the land beneath it.  Further, the presence of the Alteration Agreement did not change that situation.  The agreement reflected nothing more than the board’s interest in making sure that the proposed renovations were carried out in a way that safeguarded the integrity of the building, other units and common areas; and inconvenienced other residents as little as possible.  The agreement did not vest the board with authority to determine which contractors to hire, control the renovation work or insist that proper safety practices be followed.  Accordingly, the Court affirmed the order of the Appellate Division granting the condominium and its agents’ motion for summary judgment.
Notably, Chief Judge Lippman and Judge Ciparick dissented.  In the dissent, written by the Chief Justice, he argued that the absence of title does not necessarily dictate dismissal of the action as to the condominium.  He noted that this Court has recognized the principle that Labor Law “owner” liability may be imposed on non-owners where they have an interest in the property and have acted as owners in connection with contracting for improvement.  The Chief Justice determined that it was clear from the Alteration Agreement that the condominium continued to possess certain prerogatives of ownership with respect to the subject unit.  Specifically, among other things, alterations were subject its approval, and the condominium retained the power to insist upon compliance with the Industrial Code worker safety provisions, even within a residential unit.  Thus, the Chief Justice found that a condominium retained a propriety interest in the owners’ units.  Further, he relied upon case law recognizing a residential cooperative corporation as an “owner,” and argued that to make a different finding here lauds form over substance. 
Well, as to the owner of the condo I decided that thinking I was right was all well and good, that it might be a good idea to look it up so I did a little research on the topic and the answer was not as clear as I thought.  In Guryev the court noted in a footnote, number 6 for those of you who care, that the “Supreme Court granted the Tomchinskys summary judgment dismissing plaintiff’s complaint as asserted against them on the basis of the one- and two-family homeowner’s exception” in what was an unreported decision.  There is one other miscellaneous decision but no reported decisions from any of the four departments or the Court of Appeals that I could find which spoke directly to the issue, so it is either as clear as I thought, and the Guryev decision would seem to support my position quite well thank you very much, or it has simply never come up which I do not believe.  Therefore, I stand by my original position that the owner of a condo, who lives there and does not supervise, direct or control the work, is entitled to the protection of the exemption.

Look at the picture below and think, to yourself please, if there would be a recovery for a worker involved in this job, if he fell or if the tree fell on him.  Is it a labor law case?  By the way I especially like the fact that they put the bottom ladder in the bucket of the bobcat to gain a few more feet of height.


As luck would have it we have case for you this month and it involves a plaintiff cutting down a tree.  Actually it involves a plaintiff walking under someone else cutting down the tree much to his misfortune.  Cutting down a tree is not a covered activity, period, and so no recovery.  Why you may ask?  A tree is not a building or structure and thus it is not a covered activity.

Then I asked myself what if someone decided to trim his hedge, it was a very large one, with his lawn mower?  How to get the lawn mower up to the top of the hedge you wonder?  Well wonder no more and look below.  I have no case to explain this one but I am sure someone was hurt in the making of this photo.  My real concern here is the power line I see apparently right above the boom of the crane.



That is it for this month, keep those call and emails coming, we do so love situations so let us help.  If anyone is interested in any type of training on any topic labor law related just drop us a line and we will set something up.  Thanks for your interest.


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]
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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.

Martinez v 342 Prop. LLC
May 5, 2015
Appellate Division, First Department

Martinez and his coworkers were pushing and pulling an 8,000-pound piece of equipment across a flat platform, causing the equipment to pin Martinez against a column on the side of the platform.  He testified that the workers did not lift the equipment into the air, and that it did not fall.    

The trial court granted defendants motion for summary judgment on Martinez’s Labor Law § 241(6) claim but denied their motion to dismiss the § 240(1) cause of action.  The trial court also denied Martinez’s cross-motion for summary judgment on both causes of action. 

Labor Law § 240(1) (DRA)

The First Department held that Martinez’s testimony established that the piece of equipment that pinned him to the column was not a “falling object” and that he was not a “falling worker” and thus, the accident did not otherwise flow from the application of the force of gravity.  Accordingly, Martinez was not a covered person under the statute.

PRACTICE POINT:  Just pushing or pulling a heavy object along the ground and pinning the plaintiff against a column does not involve the force of gravity and thus is not covered.  Remember that it must be the effect of gravity on the object or worker which causes the injury.

Labor Law § 241(6) (JAE)

The court affirmed dismissal of this claim because Industrial Code regulations § 23-1.25(b) and 6.1(c) and (d) are either insufficiently specific to give rise to a triable claim under the statute or are inapplicable to the facts.  Regulation § 23-1.25(b) is too general to support such a claim.  Regulations § 23-6.1(c) and (d) do not apply because Martinez’s accident did not arise out of the operation or loading of “material hoisting equipment.”
Quiroz v Wells Reit – 222 E. 41st St., LLC
May 7, 2015
Appellate Division, First Department

Plaintiff was a steamfitter who allegedly sustained injuries after receiving an electrical shock while performing his work in the ceiling of a building under renovation.  The trial court granted defendants Wells Reit-222 East, Jones Day and Hunter Roberts (collectively the “Wells defendants”) motion for summary judgment dismissing the common-law negligence and violation of Labor Law § 200 claims as against Hunter Roberts and on their contractual indemnification claims against defendant electrical contractor ADCO.  The trial court also sua sponte dismissed the common-law negligence claims against ADCO.

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


The First Department held the common-law negligence claim should not have been dismissed as against ADCO since issues of fact exist whether ADCO properly “safed-off” the electrical wiring for ceiling light fixtures. However, the common-law negligence and § 200 claims were correctly dismissed as against Hunter Roberts, since general oversight duties, work coordination, and safety reviews do not constitute supervision and control under § 200.  Further, Hunter Roberts established prima facie that it was not on notice of the unsafe condition of the wires, and plaintiff failed to raise an issue of fact in opposition.
Indemnity Issues in Labor Law (SEP)

Plaintiff, apparently, conceded that Wells and Jones were free from liability, and Hunter Roberts was absolved from a finding of negligence by way of the Labor Law § 200 dismissal.  Accordingly, all parties were entitled to summary judgment on their claims for contractual indemnification against ADCO.  ADCO’s arguments that a finding of Labor Law § 241(6) barred indemnity were rejected because a finding of liability under Section 241(6) is “purely vicarious.” 

Ward v Urban Horizons II Hous. Dev. Fund Corp.
May 7, 2015
Appellate Division, First Department
Ward was standing on an A-frame ladder, attempting to drill a hole through an I-beam in preparation for the installation of exterior lighting.  He testified that as he was drilling, the bit became stuck and he lost control of the drill, causing him to fall backward off the ladder and onto the floor.  It was undisputed that no equipment was provided to Ward to guard against the risk of falling from the ladder while operating the drill, and that his coworker was not stabilizing the ladder at the time of the fall.

Labor Law § 240(1) (DRA)

The First Department held that Ward’s testimony that he fell from the ladder while performing drilling work established prima facie entitlement to summary judgment on the issue of liability on his statute.  In opposition, defendants failed to raise a triable issue of fact regarding the manner in which the accident occurred or whether the A-frame ladder provided adequate protection.

PRACTICE POINT:  Falling from a ladder creating 240(1) liability is nothing new, being knocked off a ladder by the kick back from a tool creating 240(1) liability also nothing new.  The best part of this case is that the co-worker of the plaintiff did not see the plaintiff fall because he was looking at girls outside the window, also nothing new.  The practice point here really is to remember that an unwitnessed accident is not grounds for a question of fact.

Barreto v Metropolitan Transp. Authority
May 7, 2015
Court of Appeals
Plaintiff was an asbestos handler who fell into an open manhole after completing his work for the day.  The opening had been surrounded by a three sided containment enclosure lined with plastic sheeting to contain the containments from the asbestos removal work.  The enclosure had lights within it to illuminate the area.  The remediation workers, including plaintiff, had been instructed to replace the manhole cover on the opening prior to dismantling the containment enclosure.  The removal and replacement of the manhole cover require two men due to its weight. 

At the conclusion of their shift, plaintiff and his co-workers proceeded to dismantle the enclosure immediately without first replacing the manhole cover.  Plaintiff was not aware that the manhole cover had not been replaced and it was sitting outside the enclosure.  Plaintiff contends the lights in the enclosure had been turned off.  As plaintiff walked to the rear of the enclosure, he fell into the open manhole, and thereafter brought this action alleging violations of Labor Law §§ 240(1), 241(6) and 200. 

The trial court dismissed all claims against plaintiff on the grounds that plaintiff was the sole proximate of the accident.  A divided First Department held that “plaintiff was provided with a “nearby and readily available” safety device, i.e., the manhole cover, and plaintiff’s own actions were the sole proximate cause of his injuries because he disregarded his supervisor’s instruction to replace the manhole cover before dismantling the containment enclosure”. 

Justice Pigott, writing for the majority, held that plaintiff was entitled to summary judgment on his §240(1) claim.  The court started with the basic language from Cahilland Zimmer that “Where an accident is caused by a violation of the statute, the plaintiff’s own negligence will not furnish a defense”; however, “where a plaintiff’s own actions are the sole proximate cause of the accident, there can be no liability”. Thus, in order to recover under the statute, plaintiff must establish the statute was violated and that such a violation was a proximate cause of his injury”.

It must be noted that the court did not decide the issue of whether the work plaintiff was engaged in posed an elevation related hazard.  That point was not argued below and the Court of Appeals assumes, “for purposes of this appeal only, that plaintiff was engaged in work that posed an elevation-related risk.”  The court carefully points out that they are not deciding that issue.  Judge Fahey asked plaintiff’s attorney at length about this point and the fact that street level cases are generally not considered to be a § 240(1) case and even said that the bar is looking for direction in this area.  In the end, however, the issue was not decided by the court, though it was a major portion of their questioning during the argument.

Plaintiff established his prima facie case by the absence of a guard rail system around three sides of the manhole opening while the enclosure was being dismantled through the testimony of the president of the site safety consultant, a defendant in this matter, who testified that such a guard rail system should have been installed prior to disassembly of the enclosure.

Defendant’s sole proximate cause argument was not able to convince the court as they held that the fact that it took two men to move the manhole cover and the fact that the lights had been turned off precluded plaintiff’s actions from being the sole proximate cause of the accident.  The Court of appeals therefore found for plaintiff and awarded partial summary judgment on the § 240(1) claim.  The Court remanded the § 241(6) claim to the trial court as the decision on that claim was based on the sole proximate cause defense and no decision was made with regards to the specific section of the regulations asserted.

The Court also addressed the issue of who is a “statutory agent” as contemplated by the statute.  The court, in boiling down the standard, held that the safety consultant was an agent of the owner as they had the ability or the authority to control the activity which brought about the injury.

Judges Lippman, Rivera and Fahey concurred with Judge Pigott.

Judge Stein dissented in part and would have found for a question of fact on the issue of whether plaintiff was provided proper protection and whether plaintiff was the sole proximate cause of his injuries.  He cites to a question of fact as to whether the light had, in fact, been turned off as well as if the manhole cover was proper protection or if a guard rail was necessary as well as the sole proximate cause of plaintiff for disregarding the specific instruction to have the manhole cover replaced prior to dismantling the enclosure.

Judge Read also dissented and would have held that the trial and appellate courts got the case right, and that the case should be dismissed as to all defendants.  He opines that plaintiff knew that the enclosure was not to be dismantled until after the manhole cover was replaced and that plaintiff’s failure to wait, for no good reason, until the cover was replaced was the sole proximate cause of plaintiff’s accident and resulting injury. 

PRACTICE POINT: This case provides a good look at the mindset of the Court of Appeals.  When faced with multiple potential causes of the accident, they do not appear open to the argument that had the plaintiff simply done what he was told that the accident would not have happened.  In the instant case, there can be no argument but that had plaintiff waited to dismantle the enclosure until after the manhole cover was replaced, the accident would not have happened at all.  The fact that there are potentially other causes of the accident removes this from the sphere of sole proximate cause cases. Whether this is a fair interpretation of the law or not is irrelevant, it appears that the court is continuing down this path as they did in the Grove case.

Vanderwall v 1255 Portland Ave. LLC
May 8, 2015
Appellate Division, Fourth Department

Defendant 1255 Portland hired Spoleta as the general contractor of a medical office building who in turn, hired Vanderwall’s employer, Hub-Langie.  Vanderwall was struck by the bucket of an excavator at a construction site being operated by his supervisor.  The trial court granted defendants’ motions to dismiss the Complaint, and Vanderwall cross-moved on his Labor Law § 241(6) claim based on 23-9.5(c) and 4.2(k).    

Labor Law § 241(6) (JAE)

The Fourth Department affirmed dismissal of the claim under 4.2(k) as that regulation “is not sufficiently specific to support a cause of action” under the statute. 

However, Industrial Code regulation 9.5(c) provides, in relevant part, that “excavating machines shall be operated only by designated persons … [and] [n]o person[s] other than the pitman and excavating crew shall be permitted to stand within range of the back of a power shovel or within range of the swing of the dipper bucket while the shovel is in operation.”  The court rejected Vanderwall’s argument that his supervisor was not a “designated person” authorized to operate the excavator as he had his own key to the excavator and possessed supervisory authority over the work. 

The court concluded that Vanderwall was not part of any “excavation crew” as the work “crew” necessarily means more than one worker and here, there was no expectation by Vanderwall that he would perform his work with his supervisor and, in fact, no awareness that his supervisor even arrived and began operating the excavator. 

Justices Peradotto and Carni dissent and would hold that Vanderwall was a member of an “excavating crew” and therefore, defendants did not violate 9.5(c) because Hub-Langie hired Vanderwall as a “pipe layer” which consisted of “working with the excavator, being in a hole, [and] putting pipe together, whether it be water [or] sewer.”  According to the dissent, Vanderwall and his supervisor were performing excavation work in the same area of the construction site that was “an integral part of the excavation operation.”

Vivar v 441 Realty, LLC
May 13, 2015
Appellate Division, Second Department
Vivar fell from an A-frame ladder while installing sheetrock at a building owned by the defendant.  The trial court granted defendant’s motion for summary judgment dismissing the Law §§ 240(1) and 241(6) causes of action, and denied Vivar’s cross-motion for summary judgment on his § 240(1) claim.     

Labor Law § 240(1) (DRA)

The Second Department reversed as both party’s evidence failed to eliminate triable issues of fact as to whether defendant’s alleged failure to provide adequate safety equipment was a proximate cause of the occurrence.

PRACTICE POINT:  Sometimes the case just does not give us enough facts to determine why the court found the way it did, as is the case here.  Thus our learning opportunity here is going to be the shifting burden on a Summary Judgment motion.  The initial burden lies with the moving party to eliminate all questions of fact, here they did not do that.  Then on the cross motion the burden shifts to the party moving there and again the cross moving party could not do that.  Thus, the case will need to go to the jury on all questions but at the time of trial it is only the plaintiff who carries the burden abd the defense need only prevent the plaintiff from establishing the prima facie case to prevail.

Labor Law § 241(6) (JAE)

The Court also held defendant failed to establish its prima facie entitlement to dismissal of this claim under Industrial Code regulation § 23-1.21(b)(4) and (e)(3).


Strojek v 33 E. 70th St. Corp.
May 14, 2015
Appellate Division, First Department
Plaintiff was performing asbestos removal work in a building owned by defendant when he fell from a baker’s scaffold.  He testified that he was standing on the scaffold working, and then awoke up on the ground with the scaffold tipped over near him.  The trial court granted plaintiff’s motion for partial summary judgment for liability on his Labor Law § 240(1) cause of action.  The trial court granted Allison’s motion to dismiss the complaint. 

Labor Law § 240(1) (DRA)

The First Department held that plaintiff’s testimony established a prima facie violation of the statute and that such a violation proximately caused his injuries, and the fact that he could not recall how he fell does not bar summary judgment.  The court rejected defendant’s expert affidavit with respect to the ceiling height and whether plaintiff could stand straight up as he claimed, since the expert’s measurements were based on his inspection of the premises almost three years after the accident and asbestos removal work.

PRACTICE POINT:  I completely disagree with this decision.  There is no labor law liability where a plaintiff simply loses his balance and falls from a ladder or scaffold, it is only when there is a defect in the ladder or scaffold.  Since 2003 when the Court of Appeals decided Blake the law has been that where a plaintiff simply falls of the ladder that it does not establish a violation of 240(1) per se.  In Blake the jury found that the plaintiff was the sole proximate cause of his own fall and the COA held that absent a failure to provide an adequate safety device there is no violation of the labor law.  Applying that logic to this decision, and recalling the case above where I outlined the burden of proof, it is incumbent on the plaintiff, and only the plaintiff, to establish that there was a failure of the safety device, here a scaffold, which proximately caused him to fall.  As the plaintiff has no recollection of the accident it is mere speculation for the court to determine that he fell due to the scaffold as opposed to simply losing his balance while standing on the scaffold and falling off which would not be  violation of the labor law.  I do not like this decision and think it was wrongly decided.  Disappointingly the decision was unanimous and is not likely to go to the Court of Appeals.

Ladignon v Lower Manhattan Dev. Corp.
May 19, 2015
Appellate Division, First Department

Ladignon allegedly was injured while walking down a flight of stairs when he slipped and fell on a broken light bulb and nails that were left in the stairway.  At the time he was injured, Ladignon was working as an inspector for the demolition of a building, and he sued the construction manager, Bovis and three subcontractors, R&J, Gramercy and Paradise alleging common-law negligence and violations of Labor Law §§ 241(6) and 200. 

The trial court granted Gramercy’s motion for summary judgment dismissing the complaint, denied Bovis summary judgment on its third-party claims for indemnification and contribution from the subcontractors, and denied R&J’s motion to dismiss the complaint. 

Labor Law § 241(6) (JAE)

The First Department rejected the argument of Bovis that there was no violation of the statute because Ladignon slipped on debris in a work area under § 23-1.7(e) and he was a demolition inspector who thus was “within the class of persons that Labor Law § 241(6) was intended to protect.”

Labor Law § 200 and Common-Law Negligence (VCP)
The First Department held there are triable issues concerning whether Bovis may be liable for plaintiff's fall and thus, the trial court properly declined to dismiss the common-law negligence and Labor Law § 200 claims as against it.  Specifically, the court fond triable issues as to constructive notice of the defective condition of the staircase since the record is unclear as to when the staircase was last inspected prior to plaintiff's fall.
Indemnity Issues in Labor Law (SEP)

With a pending Labor Law § 200 claim against Bovis, its claims for common law indemnity against the electrical and carpentry subcontractors was denied.  Moreover, given the possibility that either, or both, contractors may have contributed to the debris which resulted in plaintiff’s fall, summary judgment dismissing  the indemnity claim was premature as well. 

Martinez v 305 W. 52 Condominium
May 20, 2015
Appellate Division, Second Department

Martinez was employed with Cardinal when he allegedly fell from a ladder while working on one of the Condominium defendants’ units.  The trial court granted that portion of the Condominium defendants, Cardinal’s and defendant property owner Schwartz’s motions for summary judgment to dismiss the common-law negligence and Labor Law § 200 claims under the theory that Martinez was using a defective ladder and otherwise denied their motions to dismiss the violations of Labor Law §§ 240(1) and 241(6) claims.  The trial court also denied Martinez’s cross-motion to have the Condominium defendants, Cardinal and Schwartz appear for depositions.

Labor Law § 240(1) (DRA)

The Second Department held “A party should be afforded a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment.”  Here, no depositions of any defendants or third-party defendants have been conducted and the trial court properly denied the motions because further discovery may lead to relevant evidence although the denial should have been without prejudice to renew upon the completion of discovery.

PRACTICE POINT:  This is not a universal stand among all courts and many will not allow for a party to argue that they have not had an ample opportunity to conduct discovery.  It is often a sound practice to conduct depositions of the parties critical to your case in a timely manner to avoid this type of situation.  Most attorney and court are courteous in allowing all parties to conduct the depositions they deem necessary to defend their case but there are exceptions and those can create real problems when the motion is made against your client or insured.  As an aside we may soon have another case regarding the status of the homeowner exception for a condo owner.

 Pacheco v Smith
May 20, 2015
Appellate Division, Second Department

Pacheco was installing a small roof at defendant’s single-family home when he fell from an extension ladder.  He filed a common-law negligence and Labor Law § 200 action claiming that defendant placed the ladder was on an unsecured plastic tarp and thereby creating a dangerous condition.  The trial court granted defendant’s motion to dismiss the Complaint as he did not supervise, direct or control the work and that he did not create or have actual or constructive notice of the dangerous condition.

Labor Law § 200 and Common-Law Negligence (VCP)
The Second Department reversed, holding that defendant failed to establish his prima facie entitlement to judgment as a matter of law.  In support of his motion, defendant submitted a copy of the injured plaintiff's deposition testimony, wherein plaintiff testified that defendant had placed an unsecured plastic tarp on the deck where the injured plaintiff was performing his work. Thus, the court held defendant failed to eliminate triable issues of fact as to whether he created or had actual or constructive notice of the alleged dangerous condition.  The failure to make a prima facie showing required the denial of the defendant's motion, regardless of the sufficiency of the opposing papers.
Cicchetti v Tower Windsor Terrace, LLC
May 21, 2015
Appellate Division, Third Department

Cicchetti was struck on the head by a falling chunk of wood and brought this action alleging violations of Labor Law §§ 240(1) and 241(6).  His employer, Two Brothers, was hired by defendant property owner to remove large trees and brush along a chain-link fence and removal all debris and large wood.  The trial court granted defendant’s motion to dismiss the Complaint.

Labor Law § 240(1) (DRA)

The Third Department rejected Cicchetti’s argument that he was engaged in a protected activity at the time of his incident because settled case law holds that a tree does not qualify as a building or structure, and neither tree removal nor tree cutting typically constitute one of the enumerated statutory activities.  The court noted that the statute “affords no protection to a plaintiff who is injured before any activity listed in the statute is under way.”

PRACTICE POINT:   A structure is anything made of component parts, and trunk, branches and leaves do not count.  Thus, a tree is not a structure so no recovery.  Just one of those things you need to remember, like i before e except after c.


Wallach v R&J Constr. Corp.
May 21, 2015
Appellate Division, First Department

Wallach apparently was injured on property owned by defendant R&J and he bought suit alleging, among others, a violation of Labor Law § 241(6).  The trial court denied Wallach’s motion to amend the summons and complaint to add Dermot as a party defendant under the relation back doctrine of CPLR § 203(c).

Labor Law § 241(6) (JAE)

The First Department held Wallach failed to demonstrate that Dermot was united in interest with R&J and that R&J has different defenses to his claims.  Here, Wallach’s counsel was advised by a letter of the ownership of the property at issue and that the identity is a matter of public record, the court rejected Wallach’s argument that her failure to name Dermot as a defendant was a mistake.
German v Antonio Dev., LLC
May 26, 2015
Appellate Division, First Department

German allegedly slipped on a wet steel grate as he tried to lift the steel grate on the ground-level just enough to slide a copper wire underneath it.  He also claimed to have slipped and fell due to the existence of snow on the grates that were a dangerous and defective condition.  The trial court granted the MCP defendants and third-party defendant Spieler’s motions for summary judgment, and denied third third-party defendant Cross County’s cross-motion to dismiss the MCP defendants’ third third-party complaint.

Labor Law § 240(1) (DRA)

The First Department affirmed dismissal of this claim against the MCP defendants because German’s task did not present the sort of elevation-related risk envisioned by the statute since he was not struck by an object, elevated or otherwise.  The plaintiff was not struck by an object, but rather slipped and fell on a wet slippery grate.

PRACTICE POINT:  Where the plaintiff slips and falls, landing at the same level as he started, it is not a labor law case.

Labor Law § 241(6) (JAE)

The First Department affirmed dismissal of this claim because § 23-1.7(d) did not apply because the record establishes that German’s incident did not occur on a floor, passageway, walkway, scaffold or other elevated working surface but rather in an open courtyard.

Labor Law § 200 and Common-Law Negligence (VCP) 
The First Department affirmed.  With respect to plaintiff's Labor Law § 200 claim, he alleges he slipped and fell due to the existence of snow on the courtyard grates, a dangerous and defective condition on the job site.  The trial court properly dismissed this claim as against the MCP defendants with respect to plaintiff's second accident since the record does not support the conclusion that they had actual or constructive notice of the allegedly dangerous condition.
Indemnity Issues in Labor Law (SEP)

Cross Country’s motion for common law indemnity against MCP was denied due to existing questions of fact relative to Cross Country’s own negligence.  We’d note, although the Court did not, that with MCP having been absolved of negligence, there is no basis for a common law indemnity claim via McCarthy v Turner Constr. Co.
Cross Country’s possible negligence also precluded a finding of contractual indemnity, as a party to a construction contract cannot be indemnified for its own wrongdoing under GOL 5-322.1
Vitolo v City of New York
May 28, 2015
Appellate Division, First Department

Vitolo allegedly was injured in attempting to drag a platform by himself while standing on the braces of a scaffold.   The trial court denied defendants’ motion for summary judgment on Vitolo’s Labor Law § 241(6) cause of action predicated on § 23-5.1(h).

Labor Law § 241(6) (JAE)

Industrial Code regulation § 23-5.1(h) provides that “[e]very scaffold shall be erected and removed under the supervision of a designated person.”  “Designated person” is defined under § 23-1.4(b)(17) as a “person selected and directed by an employer or his authorized agent to perform a specific task or duty.” 

Here, the First Department held that regardless of whether Vitolo was the designated person, given his experience and qualification in building scaffolds, there is simply no basis to conclude that the incident was in any way the result of someone failing to adequately supervise him.  Thus, the trial court should have dismissed the complaint against defendants. 




12 NYCRR § 23-1.7(d) – Protection from general hazards – Slipping hazards.


§ 23-1.7(d) provides that “employers shall not suffer or permit any employees to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition”, and is sufficiently specific.


White v Sperry Supply and Warehouse Inc., 225 AD2d 130, 649 NYS2d 236 (3d Dept 1996);
 Gist v Central School Dist. No. 1, 234 AD2d 976, 651 NYS2d 818 (4th Dept 1996);
 Cafarella v Harrison Radiator Div. of General Motors, 237 AD2d 936, 651 NYS2d 910 (4th Dept 1997);
 Smith v Homart Dev. Co., 237 AD2d 77, 666 NYS 218 (3d Dept 1997);
 Doyne v Barry, Bette & Led Dike Inc., 246 AD2d 756, 668 N.Y.S.2d 58 (3d Dept 1998);
 Rothschild v Faber Homes, Inc., 247 AD2d 889, 668 NYS2d 793 (4th Dept 1998);
 Bale v Pyron Corp., 256 AD2d 1128, 684 NYS2d 393 (4th Dept 1998);
 Amirr v Calcagno Const. Co., 257 AD2d 585, 684 NYS2d 280 (2d Dept 1999);
 Stasierowski v Conbow Corp., 258 AD2d 914, 685 NYS2d 545 (4th Dept 1999);
 Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139, 950 NYS2d 35 (1st Dept 2012);
McCraw v United Parcel Service, 263 AD2d 499, 692 NYS2d 739 (2d Dept 1999); 
Whalen v City of New York, 270 AD2d 340, 704 NYS2d 305 (2d Dept 2000); 
Bond v York Hunter Const., Inc., 270 AD2d 112, 705 NYS2d 40 (1st Dept 2000);
Blysma v County of Saratoga, 296 AD2d 637, 744 NYS2d 564 (3d Dept 2002);
Musillo v Marist College, 306 AD2d 782, 762 NYS2d 663 (3d Dept 2003);
Bruder v 979 Corp., 307 AD2d 980, 763 NYS2d 667 (2d Dept 2003);
Salinas v Barney Skanska Const. Co., 2 AD3d 619, 769 NYS2d 559 (2d Dept 2003);

White held reg inapplicable where π injured in attempting to avoid falling off roof and into vat of tar below.
Gist held reg inapplicable where π slipped on water sealant while replacing roof b/c water sealant not “foreign substance” but integral part of new roof being constructed.
 Cafarella, held reg specific enough where π slipped & fell while working in rear bed of dump truck that was allegedly wet, muddy and oily.
Doyne held bar joists from which π fell when he slipped on melted ice may have qualified as “elevated working surface” under reg.
Rothschild found issue of fact whether ∆ acted as GC for homes in subdivision and had actual or constructive notice of accumulation of ice or snow & reasonable opportunity to fix it.
Bale held reg inapplicable where icy spot where π fell not on defined “walkway, passageway or path” & area not obstructed by dirt or debris.


 Amirr found issues of fact regarding π’s comparative negligence where he fell on snow-covered roof.
Stasierowski found issue of fact whether π slipped on stringer of hot tar which blew from spigot while carrying hot tar to application area on the roof.
Cappabianca found issue of fact whether masonry saw sprayed water onto floor b/c it was malfunctioning or whether water not foreign substance b/c wet saws always sprayed water onto floor where π injured when his foot became stuck, causing him to fall off pallet while cutting bricks with saw.
McCraw held π assigned to repair leaky hydraulic lift who slipped on puddle of hydraulic fluid & water was not required to show slippery surface was elevated to show violation b/c reg applied where injury occurred near hydraulic lift being used in the construction process. 
Whalen held reg violated where ∆ failed to remove ice from staircase which was passageway to worksite & applied where π injured in fall on stairway.
Bond held reg not implicated where vehicle track π fell from when he stepped on spot of grease was not “floor, passageway, walkway, scaffold, platform or other elevated working surface” and b/c accumulated debris on which he fell was unavoidable and inherent result of work at on-going demolition project.
Blysma held reg inapplicable where π fell on icy stairway at loading dock of building b/c stairway not passageway or other working surface but was common area not part of work area.

Musillo found issue of fact whether ∆s failed to provide adequate measures to prevent or rectify slipping hazard created by fireproofing overspray in violation of reg.
Bruder held staircase allegedly wet & caused π to slip and fall not “passageway” under reg b/c it was common area which was remote from the work site.
Salinas held reg did not apply b/c demolition debris that π slipped on not type of foreign substance contemplated by reg.


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