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Kehoe v 61 Broadway Owner LLC
September 3, 2020
Appellate Division, First Department
Plaintiff allegedly was injured when the pit ladder he was ascending in an elevator shaft vibrated and caused him to fall about 20 feet to the floor of the shaft. The record demonstrated the permanently affixed ladder was a safety device within the meaning of Labor Law § 240(1), as plaintiff was only able to access the elevator pit by ladder, and the ladder was effectively furnished and operated within the meaning of the statute as a safety device.
The trial court denied plaintiffs’ summary judgment motion on the Labor Law § 240(1) claim, granted defendants’ summary judgment motion seeking dismissal of the complaint, and denied the summary judgment motion for contractual indemnification against third-party defendant Marcato, as well as dismissed the claims for contractual indemnity against Marcato and third-party defendant City Elevator.
 Labor Law § 240(1) (DRA)
The First Department reversed the trial court and denied the motion of 61 Broadway; finding that while an unsecured ladder that moves or shifts constitutes a prima facie violation of Labor Law § 240(1), the ladder from which plaintiff fell was secured to the structure, and, other than allegedly vibrating, it did not move, shift or sway. Under those circumstances, an issue of fact existed whether the secured, permanently-affixed ladder, that allegedly vibrated, provided proper protection for plaintiff. The record demonstrated that, at the time of his accident, plaintiff was performing not routine maintenance but repair work, which falls within the protective ambit of Labor Law § 240(1) (see Abbatiello v Lancaster Studio Assoc., 3 N.Y.3d 46, 53 [2004]).
Defendants failed to establish that plaintiff was the sole proximate cause of his accident, as they submitted no evidence that plaintiff knew that he was supposed to use a harness for climbing ladders or that he disregarded “specific instructions” to do so. Further, to the extent the ladder failed to provide proper protection, the Court held plaintiff’s failure to use a harness amounts at most to comparative negligence, which is not a defense to a § 240(1) claim. Plaintiff did not contest that defendants Broad Street and Heyman Properties were not owners or statutory agents, so the Court did not reinstate the § 240(1) claim against them.
PRACTICE POINT: The fact that the ladder was secured and the only method of reaching the area where work was to be performed results in the designation of the secured ladder as a safety device. The remaining question of fact was whether or not the ladder afforded the plaintiff proper protection. The next issue here is the lack of a safety harness. This is not a sole proximate cause issue, even should there be no issue of its availability and instruction on use, as there is already an issue with the ladder itself. No other cause could be the sole proximate cause of the accident in that scenario. You will recall that in a Fourth Dep’t case last month, Schutt v Bookhaven, two justices, Smith and Centra, dissented, arguing that where one appropriate safety device is available for use by the plaintiff, which would have prevented the accident and injury, that the lack of a second safety device does not preclude a finding of sole proximate cause for failure to utilize the available and appropriate safety device. Thus, had the court found that the plaintiff had an appropriate safety device available – the harness, lanyard, and static line – ,he was instructed to use them in this situation, and that for no good reason he failed to do so, even with the question of fact on the propriety of the ladder, summary judgment would be awarded to the defendant on sole proximate cause. We continue to monitor this situation, which we believe will continue to develop. The world of Labor Law is ever changing.
 Indemnity Issues in Labor Law (BFM)
The First Department held that 61 Broadway was entitled to summary judgment on their contractual indemnification claim against Marcato, finding the contractual indemnity clause requires Marcato to indemnify 61 Broadway for claims and damages arising out of, inter alia, Marcato’s negligence or performance of the contract, to the full extent permitted by law, and that the indemnity provision is not void pursuant to General Obligations Law § 5–322.1. As plaintiff was injured while performing work in the course of his employment with Marcato, the indemnity provision was triggered. Contrary to Marcato’s contention, there was no evidence of negligence on the part of 61 Broadway.
Defendants argued that they may be entitled to contractual indemnification from City Elevator. However, the Court found that the defendants failed to present evidence that “the cause of plaintiff's accident existed while City Elevator still had responsibility for the elevators, and that such cause should have been detected by it.
Aguilar v Graham Terrace, LLC
September 16, 2020
Appellate Division, Second Department
Plaintiff allegedly was injured when an HVAC duct fell and struck him while he was standing on a beam, causing him to fall approximately one story to the floor. Defendant/third-party plaintiff Graham Terrace, the owner, hired defendant/third-party plaintiff Townhouse Builders, the general contractor, in connection with the renovation of a building. The general contractor hired third-party defendant Yankels, the subcontractor, to perform the demolition work. Plaintiff was employed by the subcontractor as a laborer. The owner and the general contractor commenced a third-party action, asserting one claim for contractual indemnification against the subcontractor.
The trial court granted plaintiff's summary judgment motion on the Labor Law § 240(1) claim, denied the subcontractor’s summary judgment motion dismissing the § 240(1) claim and so much of the § 241(6) claim predicated on a violation of the Industrial Code (12 NYCRR) regulation 23-1.8(c) against the owner and the general contractor, and for summary judgment dismissing the third-party claim for contractual indemnification to the extent that it sought an amount of less than $6,000,000. As for the third-party claim, the trial court granted the owner and the general contractor summary judgment to the extent that the excess insurance carrier does not make payments under the excess policy for loss exceeding the limit of the primary policy.
Labor Law § 240(1) (DRA)
The Second Department affirmed the trial court’s decision to grant plaintiff’s motion and deny the owner’s and general contractor’s motions; finding that plaintiff established his prima facie entitlement to judgment as a matter of law by submitting evidence that, while he was engaged in demolition work, he was injured when an unsecured HVAC duct fell and hit him, causing him to fall to the ground (see Ragubir v Gibralter Mgt. Co., Inc., 146 A.D.3d 563 [2d Dept 2017]; Cortes v Jing Jeng Hang, 143 A.D.3d 854 [2d Dept 2016]; Sarata v Metropolitan Transp. Auth., 134 A.D.3d 1089 [2d Dep’t 2015]). In opposition, the Court held defendants failed to raise a triable issue of fact as to whether plaintiff’s own conduct was the sole proximate cause of his injuries.
PRACTICE POINT: In general, there are two methods of establishing a § 240(1) case with a falling object. First, if the object is in the process of being hoisted it will be a § 240(1) falling object § 240(1) case. Second, if the object which fell, causing injury, is an object which should have been secured. Here the court spoke of the fact that there exists a third category, where the object fell “because of the absence or inadequacy of a safety device of the kind enumerated in the statute.” They then found for the plaintiff on the § 240(1) falling object claim because the HVAC duct was unsecured. I do not understand their detour, but the outcome is soundly based on an object which should have been secured but was not.
 Labor Law § 241(6) (MAS)
The First Department also affirmed the trial court’s decision to deny defendants’ motions regarding the § 241(6) claim based on regulation 23-1.8, which provides that: “Every person required to work or pass within any area where there is danger of being struck by falling objects or materials … shall be required to wear an approved safety hat.” Here, defendants failed to establish: (1) that the job required plaintiff to wear a hard hat, and (2) that his lack of head protective did not play a role in his injuries when he was struck by the falling object.
Indemnity Issues in Labor Law (BFM)
The Second Department reversed the trial court’s decision to grant summary judgment to the owner and general contractor on their contractual indemnification claim, holding that it was premature to render any determination concerning the extent to which the owner and the general contractor have a right of subrogation against the subcontractor.
Lemus v New York B Realty Corp.
September 16, 2020
Appellate Division, Second Department
At trial, plaintiff presented evidence that, while employed as a worker on a construction site, he was instructed to maneuver 20-foot steel beams, weighing approximately 600 to 1,000 pounds, using a metal tool to grab the beams and rotate them, so that the bolt holes on the beams were lined up to one another. As he was rotating one of the beams, he could no longer sustain its weight, and the tool he was using flew back into his face, causing him to sustain serious injuries. At the close of plaintiff’s case, the trial court granted defendant property owner’s motion, pursuant to CPLR Rule 4401, for judgment as a matter of law dismissing the Labor Law § 240(1) claim.
Labor Law § 240(1) (DRA)
The First Department agreed with the trial court that plaintiff’s injuries did not involve the kind of elevation-related risk contemplated by Labor Law § 240(1). Plaintiff and the steel beams he was rotating were at ground level, and the work he was performing did not call for the use of the protective devices mentioned in the statute in order to prevent elevation-related risks (see Toefer v Long Is. R.R., 4 N.Y.3d 399, 408[ 2005]).
PRACTICE POINT: Where the injury was not caused by the application of gravity to either the plaintiff (falling worker) or an object (falling object) the plaintiff is simply not entitled to the protection of the Labor Law and thus § 240(1) does not apply.
Wein v East Side 11th & 28th, LLC
September 23, 2020
Appellate Division, Second Department
Plaintiff was employed by nonparty Able Rigging, which had been hired by SBF to assemble a tower crane at a construction project. Plaintiff was injured in the process of hoisting a component of the tower crane for assembly when the load, which had been stationary for several minutes, suddenly moved, swung to the side, struck plaintiff, and pinned him against a plumber’s pipe. The trial court denied plaintiffs’ summary judgment motion under Labor Law § 241(6), denied defendants’ cross-motion for summary judgment dismissing the § 241(6) claim as was predicated upon violations of Industrial Code (12 NYCRR) regulations §§ 23-8.1(f)(1)(iv) and 23-8.2(c)(3), and also denied dismissal of the Labor Law § 200 against SBF.
Labor Law § 241(6) (MAS)
The Second Department affirmed denial of plaintiff’s motion, but reversed as to defendant’s motion on the § 241(6) claim predicated on 23-8.1(f)(1)(iv) since defendants demonstrated that plaintiff’s deposition testimony established no violation of that regulation and plaintiffs failed to raise a triable issue of fact (see Biafora v City of New York, 27 A.D.3d 506 [2d Dept 2006]).
As for regulation 23-8.2(c)(3), the Court affirmed denial of plaintiff’s motion because plaintiffs failed to demonstrate that this regulation was violated. Plaintiff’s deposition testimony established that tag lines were used in the hoisting operation, and plaintiffs failed to demonstrate that any lack of a tag line was a proximate cause of the accident. The Court held that the trial court should have granted defendants’ cross-motion based on plaintiff’s testimony.
The Appellate Division further reversed the trial court on plaintiff’s claim under section 23-8.1(f)(2)(i) and held that plaintiffs established, prima facie, that the load suddenly moved and caused plaintiff’s injuries. In opposition, the Court found defendants failed to raise a triable issue of fact. It held the fact that plaintiff may have been the sole witness to the accident does not preclude the award of summary judgment in his favor and any comparative negligence of plaintiff does not preclude a liability finding for a violation of Labor Law § 241(6).
 Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department held that the trial court should have granted defendants’ cross-motion for summary judgment dismissing the Labor Law § 200 claim insofar as asserted against SBF, finding defendants established that plaintiff’s injuries arose solely out of the manner of his work. Moreover, they demonstrated SBF only had general supervisory authority at the job site, which authority is insufficient to impose liability under Labor Law § 200.
Wiski v Verizon N.Y., Inc.
September 16, 2020
Appellate Division, Second Department
Plaintiff fell from a scaffold, at premises owned by defendant Intergate, while performing asbestos abatement work for his employer, pursuant to its contract with defendant Sabey. Plaintiff testified at his deposition that, while he was removing ducting from the ceiling, a section of the ducting bent downward and struck the scaffold, causing him to fall. He testified that he had also been provided with a hoist to use for securing and gradually lowering the ducting segments, but was not using it at the time of the accident. The trial court denied plaintiffs’ motion for summary judgment on the Labor Law § 240(1) claim.
Labor Law § 240(1) (DRA)
The Second Department affirmed, as plaintiff failed to establish his prima facie entitlement to judgment as a matter of law. Plaintiff’s own deposition testimony raised a triable issue of fact as to whether the subject ducting, which was light enough to be held up by plaintiff’s hands after being cut but before being attached to the hoist to be lowered to the floor, posed an elevation-related risk that required securing for the purposes of the undertaking. In any event, plaintiff was provided with an enumerated safety device, the hoist, which he declined to use to secure the subject ducting prior to cutting it. Plaintiff also was provided with a scaffold and failed to show by evidence in admissible form that it was inadequate.
PRACTICE POINT: this appeal, solely by the plaintiff on the denial of their § 240(1) motion, is yet another falling object case. The ruling is: where there was an available safety device, which the plaintiff was instructed to use, but for no good reason failed to use, in spite of the prima facie case, summary judgment will be denied. That said, I bet the defendant wished that they had also appealed the denial of their underlying summary judgment motion on § 240(1).
Bosconi v Thomas R. Stachecki Gen. Contr., LLC
September 30, 2020
Appellate Division, Second Department
Plaintiff allegedly was injured when a set of temporary stairs, installed by defendant, collapsed underneath him at a construction site within an apartment complex. At the time of his accident, plaintiff allegedly was employed as the property manager of the apartment complex and was the sole member of the corporation which owned the apartment complex. Defendant contracted with the corporation that owned the apartment complex to perform framing work for the renovation of several apartment units on the premises. The trial court granted defendant’s motion to dismiss the complaint alleging violations of Labor Law §§ 240(1), 241(6) and 200.
Labor Law § 240(1) (DRA)
The Second Department affirmed, because plaintiff was not among the class of persons entitled to statutory protection under the Labor Law. In opposition, the Court held plaintiff failed to raise a triable issue of fact and plaintiff’s expert affidavit was speculative, conclusory, and unsupported by the facts.
PRACTICE POINT: To obtain the protections of the Labor Law, a plaintiff in a § 240(1) case must be a “person so-employed,” which is defined as a person employed to work on the site in a protected activity. This does not cover all persons on the site. Here, it did not cover the owner’s representative who was on site but not engaged in the ongoing work.
Medina-Arana v Henry St. Prop. Holdings, LLC
September 30, 2020
Appellate Division, Second Department
Plaintiff allegedly was injured when he fell from a scaffold, which was approximately six feet in height, and lacked guardrails on the sides. At the time of the accident, plaintiff was working at a construction site on property owned by Henry Street. The trial court granted plaintiff’s summary judgment motion on the Labor Law § 240(1) claim against Henry Street and denied Henry Street’s cross-motion for summary judgment dismissing the Labor Law § 200 claim , common-law negligence claim, and Labor Law § 241(6) claim predicated upon a violation of Industrial Code (12 NYCRR) regulation 23-5.1(b).
Labor Law § 240(1) (DRA)
The Second Department reversed the trial court; finding that “[a] fall from a scaffold does not establish, in and of itself, that proper protection was not provided, and the issue of whether a particular safety device provided proper protection is generally a question of fact for the jury.” Moreover, the absence of guardrails on a scaffold six feet in height does not necessarily constitute a violation of Labor Law § 240(1) (see Holly v County of Chautauqua, 13 N.Y.3d 931, 932 [2010]). The Court also held that plaintiff failed to eliminate triable issues of fact as to whether the scaffolding at issue provided proper protection under Labor Law § 240(1).
PRACTICE POINT: The lack of an adequate safety device is the missing element in this matter. The plaintiff did not establish, with admissible evidence, that the plaintiff was injured due to the lack of an adequate safety device, and the fact that he fell is not sufficient to establish a violation of § 240(1). This may have resulted in summary judgment for the plaintiff in any other department, but the Second Department follows these elements closely.
Labor Law § 241(6) (MAS)
The Second Department affirmed denial of Henry Street’s cross-motion to dismiss the § 241(6) claim predicated on regulation 23-5.1(b), which provides that “[t]he footing or anchorage for every scaffold erected on or supported by the ground, grade or equivalent surface shall be sound, rigid, capable of supporting the maximum load intended to be imposed thereon without settling or deformation and shall be secure against movement in any direction.”
Here, the Court held Henry Street failed to demonstrate that this regulation was either factually inapplicable to this case or was satisfied and, thus, affirmed denial their cross-motion, regardless of the sufficiency of the opposing papers.
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department reversed the trial court’s order and granted the defendant’s cross-motion for summary judgment as to Labor Law § 200 and common-law negligence. First, the Court acknowledged the two types of § 200 claims; those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed. It found plaintiff’s accident did not involve any dangerous or defective condition on the premises. Therefore, the claim was based on the manner in which plaintiff’s work was performed. Henry Street established that it did not have the authority to exercise supervision and control over the subject work, and plaintiff failed to raise a triable issue of fact on that point. Accordingly, the claims for a violation of Labor Law § 200 and common-law negligence should have been dismissed by the trial court.
Pacheco v Judlau Contr., Inc.
September 30, 2020
Appellate Division, Second Department
Plaintiff, an excavating laborer who specialized in shoveling, was working for nonparty Providence, which had been hired by the general contractor, nonparty JTJ, a joint venture consisting of defendants, Judlau Contracting and J-Track as well as another, to perform demolition inside a subway tunnel as part of a rehabilitation project. Plaintiff’s specific task was to shovel concrete debris, which had been chipped from the subway tunnel’s walls, into bags for removal. During the project, eight-by-four-foot pieces of plywood had been placed atop the subway tracks covering its rails and the trough between the rails, onto which the debris would fall making it easier to shovel. Plaintiff allegedly was injured when his shovel struck a rail of a track that was not covered by plywood. The trial court denied defendants’ summary judgment motion dismissing the Labor Law § 200 claims and common-law negligence claims.
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department reversed the trial court’s order denying defendants’ motion for summary judgment as to plaintiff’s claims for violation of Labor Law § 200 and common-law negligence. It held the duty to provide workers with a safe place to work under § 200 does not extend to hazards that are part of, or inherent in, the very work the worker is performing, or defects the worker is hired to repair. Based on the testimony of J-Track’s general foreman and Providence’s foreman, which demonstrated that Providence decided to place, and actually placed, the plywood over the tracks for the purpose of making it easier to remove the debris, rather than for a safety purpose, the Court found defendants established that plaintiff’s job responsibilities required him to remove the debris from the subway tracks, and that his alleged injuries were caused in the normal course of his removal of the debris in that area. Therefore, defendants’ motion should have been granted.
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