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Labor Law Pointers - Volume IX, No. 12

 
 

Labor Law Pointers

A Monthly Electronic Newsletter Addressing
New York State Labor Law Decisions and Trends

Volume IX, No. 12
Wednesday, November 4, 2020

 

From the Editor:

Do you have a situation?  We love situations.  Give us a call, send an email, or drop by; we truly enjoy solving complex Labor Law and risk-transfer issues, and we are always available to help.
 
As we wait for the results of the election yesterday, there is no better diversion than reading a few Labor Law cases.  I have also heard that it can be a great sleep aid; if you are having trouble falling asleep, just read a few cases and it is off to dream land.  My concern, however, is that those dreams will be about falling from a defective scaffold.
 
We have a full complement of cases for you this week.  The courts are back up and issuing more decisions.  I was able to argue an appeal last week, in-person, at the Fourth Department.  It was nice to get up and put a suit on and go to court and argue in front of some real, live judges. The attorneys sat at separate and distanced tables, with the judges, some live and some on video, were also spaced out on, and in front of, the bench. The hardest part was that, when it was my turn to argue, I tried to stand, but we had to argue seated, in front of the camera and microphone.   My Pavlovian response to stand every time I speak to the court had to be repressed.
 
We continue to be available to provide training seminars on all topics Labor Law and Risk-Transfer related.  We can tailor the presentation to your needs; from the basics to more advanced topics including accident site investigations, potential risk-transfer methods, identifying potential Labor Law defenses, and recent case updates.  Just drop me a line and we can set it up.
 
For our photo section today, we start with a situation where a homeowner wanted their attic insulated to reduce heat costs in his single-family house.  He hired a company to do the job for him.  He is a very particular homeowner and after the first day of the workers getting dust everywhere, he insisted that they leave the opening to the attic closed while working.  Unfortunately, doing so blocked the light to the attic, and the workers had forgotten their trouble lights, so they were working using the lights on their phones to see.  While working, the plaintiff missed the rafter and fell partially through the ceiling sustaining injury.  Labor Law case?



 
The plaintiff is appropriate, as a person so employed; the project was construction, the injury was caused by the effects of gravity, so we are good so far for the plaintiff.  Next, we need to determine if the defendant is valid.  As the owner of the structure, there is a prima facie case; however, the defendant will seek to utilize the single-family homeowner exception.  That exception exists for all owners of one- or two-family homes, who do not direct or control the work.  Here the defendant did direct the manner in which the plaintiff performed the work and thus, the exception will not apply, and the plaintiff will have a valid claim against the homeowner.
 
In this next video, the plaintiff was assisting in pouring concrete on the second floor of a store under construction when the base failed, allowing the concrete to fall to the floor below. The plaintiff, an employee of the concrete contractor, was able to grab on to the re-bar and did not fall, however in doing so he injured his shoulder.  Does he have a §240(1) claim against the owner?
 

Video 1: Concrete
 
Plaintiff did not fall, but unfortunately for the owner, that does not eliminate the claim.  Where, as here, a plaintiff is injured while preventing himself from falling, the injury is caused by the effect of gravity and he has a valid Labor Law case.
 
In our second video of the month, the plaintiff, an employee of the demolition contractor, is taking down the wall of a building using a sledgehammer.  While standing on the wall he is attempting to demolish, the wall gives way under his feet, and he falls 5 stories to the ground below, sustaining injury.  Plaintiff had been supplied with a man-lift to stand in to do the job, but it only was able to get him to the third floor, so he decided to do it in the manner depicted in the video.  § 240(1) case?  *If you are squeamish, or afraid of height you may want to skip this video.*

 
Video 2: No Eye Protection
 
There is clearly a prima facie case here.  The question is whether the sole proximate cause defense is applicable?  That defense fails here for two reasons.  First, the safety device provided, a man-lift, was not appropriate, as it did not reach the area where the work needed to be done.  Second, the plaintiff had a good reason for not using the safety device; again, because it did not reach the area where the plaintiff was instructed to work.
 
Next, we have two commercial window washers who have used sandbags to counterbalance the scaffold while washing the windows of an office building.  Their careful calculations as to the number of sandbags needed did not take into account the delicious lunch that they had just eaten.  It was so good that they each had seconds, and dessert, thus increasing the weight on the scaffold to a point that the scaffold fell, causing injury to the plaintiffs.  § 240(1) case?
 

 
Window washing is something of a special category, if the plaintiff had been washing the windows of a large home when this occurred ,it would not be considered a § 240(1) case.  Residential window washing generally is not covered.  As these plaintiffs were washing the windows of a commercial building, however, they are entitled to the protection of § 240(1) and thus have a valid claim. 
 
That is all for this month.  Please stay safe and feel free to reach out with any “situations,” even if just to confirm what you already know and say hi. 
 
Stay safe.   

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



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Medical & Nursing Home Liability Pointers:  Hurwitz & Fine, P.C.’s newest legal alerts contain timely news on medical and nursing home liability claims, including updates on the impact of COVID-19.  Contact Chris Potenza at [email protected] to subscribe.

Premises Pointers This monthly electronic newsletter covers current cases, trends and developments involving premises liability and general litigation. Our attorneys must stay abreast of new cases and trends across New York in both State and Federal Court, and will now share their insight and analysis with you. This publication covers a wide range of topics including retail, restaurant and hospitality liability, slip and fall accidents, snow and ice claims, storm in progress, inadequate/negligent security, inadequate maintenance and negligent repair, service contracts, elevator and escalator accidents, swimming pool and recreational accidents, negligent supervision, assumption of risk, tavern owner and dram shop liability, homeowner liability and toxic exposures (just to name a few!).  Contact Jody Briandi at [email protected]  to be added to the mailing list. 

Products Liability Pointers:  Whether the claim is based on a defective design, flawed manufacturing process, or inadequate instructions/warnings, products liability litigation is constantly evolving.  Products Liability Pointers examines recent New York State and Federal cases as well as high court decisions from other jurisdictions, keeping our readers up-to-date with the latest developments and trends, and providing useful practice tips and litigation strategies.  This monthly newsletter covers all areas of products liability litigation, including negligence, strict products liability, breach of warranty claims, medical device litigation, toxic and mass torts, regulatory framework and governmental agencies. Contact V. Christopher Potenza at [email protected] to be added to the mailing list.

 

Landron v Wil-Cor Realty Co. Inc.
October 1, 2020
Appellate Division, First Department


Plaintiff was injured when he fell to the ground from the top of a tractor-trailer, while attempting to manually roll out a tarp to cover trash in the trailer, as required by defendant Tully. The trailer with the allegedly defective tarping mechanism was owned by Strength Corp. and leased to plaintiff’s employer. Plaintiff testified that Tully directed him in how to proceed at the facility and mandated that he cover the trash with the tarp, and the facility manager testified that Tully had a policy prohibiting drivers from standing on the tops of trailers.
 
The trial court granted defendants Wil-Cor Realty and Tully's summary judgment motion dismissing the Labor Law § 200 and common-law negligence claims as against them and granted Strength’s motion seeking dismissal of the common-law negligence claims as against it.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department reversed the trial court’s order dismissing the Labor Law § 200 and common-law negligence claims against Wil-Cor and Tully, and dismissing the common-law negligence claim against Strength Corp. As to Wil-Cor and Tully, it found that the record presented issues of fact regarding their authority to control the activity that brought about the injury. The Court also found a factual issue as to whether defendants, in permitting the tractor-trailer to be overfilled, created the condition that may have cause plaintiff's injuries.
 
As to Strength, the Court found that it failed to demonstrate that the tarp mechanism on its trailer was in proper working order when the trailer was leased to plaintiff's employer or that it had no knowledge of the unsafe condition.

 


Avila v Saint David's Sch.
October 8, 2020
Appellate Division, First Department

Plaintiff, who was injured doing demolition work when the unsecured ladder he was using to remove a ceiling, was struck by a piece of falling metal debris causing him and the ladder to fall to the ground. The trial court denied plaintiff's motion for partial summary judgment under Labor Law § 240(1).
 
Labor Law § 240(1) (DRA) 
The First Department unanimously reversed; finding the undisputed facts showed prima facie that defendants violated Labor Law § 240(1) by failing to provide adequate safety devices to plaintiff.  Defendants failed to raise a material issue of fact. The issues of fact relied upon by the trial court in denying Plaintiff’s motion were immaterial to the issue of whether defendants’ violation of § 240(1) was a proximate cause of plaintiff’s injuries. Plaintiff was not required to show that the ladder he was using was defective, where testimony established that defendant failed to provide a safety device to ensure the ladder would remain upright while plaintiff used it.

PRACTICE POINT:  Where the admissible evidence is that a plaintiff is caused to fall because the ladder moved, it is summary judgment for the plaintiff.  To not be distracted by the fact that the movement was caused by a falling object, it is the cause of the falling plaintiff that controls.
 

 

Mikenshina v Tishman Constr. Corp.
October 15, 2020
Appellate Division, First Department

 
Plaintiff’s lanyard became caught on the scaffolding handrail, causing her to fall. The trial court granted defendants’ summary judgment motion dismissing the Labor Law § 200 and common-law negligence claims.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed dismissal of the common-law negligence and Labor Law § 200 claims. This was a hazardous condition claim (rather than means and methods). Defendants established their entitlement to summary judgment by demonstrating that the scaffolding handrail on which plaintiff's lanyard was caught, causing her to fall, was open and obvious and not inherently dangerous. Further, they established, through expert testimony, that the handrail, which was a prefabricated component, was consistent with custom and practice in the industry and was not a hazardous projection in violation of OSHA regulations.


 

Hewitt v NY 70th St. LLC
October 20, 2020
Appellate Division, First Department

 
Sweeney, the general contractor, subcontracted with Structure Tech to perform exterior general construction work. Structure Tech, in turn, subcontracted with Spring, plaintiff’s employer, to erect and dismantle scaffolding. Plaintiff’s accident occurred when, while he was at ground level holding an I-beam that was being hoisted, a Structure Tech employee dislodged a metal baluster from the third-floor balcony railing, which fell and struck plaintiff in the head and face.
 
The trial court granted denied plaintiff’s motion for summary judgment under §§ 240(1) and 241(6), granted Sweeney’s cross-motion on his §§ 241(6) and 200, but denied its motion seeking dismissal of the § 241(6) claim as well as for unconditional summary judgment on its crossclaim for contractual indemnification against Structure Tech. The trial court also denied Spring’s cross-motion to dismiss the third-party complaint.
 
Labor Law § 240(1) (DRA)
The First Department reversed and awarded summary judgment to plaintiff on his Labor Law § 240(1) claim against Sweeney and Structure Tech because Sweeney was the general contractor and Structure Tech was their subcontractor, so they were strictly liable for failing to provide overhead protection to plaintiff. Thus, it did not matter whether plaintiff was in an area of the worksite where he was not supposed to be at the time of the accident since it would at most constitute comparative negligence, which is not a defense under the statute.
 
PRACTICE POINT:  The key element here is the fact that the plaintiff was not specifically instructed not to be in a location because objects were being caused to fall there but rather the area was not provided with any fall protection and workers were able to access that location.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department reversed the trial court’s decision and granted plaintiff summary judgment as to Labor Law § 200 and common-law negligence as against Structure Tech and denied Sweeney’s cross motion on those claims. As to Structure Tech, the Court found it to be the statutory agent of the general contractor. Consequently, it could be held liable under Labor Law § 200 and common-law negligence for injuries caused by a dangerous condition that it caused or created or of which it had actual or constructive notice. It was undisputed that a Structure Tech employee was responsible for dislodging the baluster and allowing it to fall and strike plaintiff. Accordingly, plaintiff should have been granted summary judgment as to Labor Law § 200 and common-law negligence against Structure Tech.
 
With regard to Sweeney, Structure Tech's superintendent testified that Sweeney's superintendent instructed Structure Tech to cut the baluster that ultimately struck plaintiff. If believed, this testimony could support a finding that Sweeney actually exercised supervisory control over the worksite so as to trigger liability under these claims. Therefore, it was not entitled to summary judgment on Labor Law § 200 and common-law negligence.

 


Ovalle v Buckwalter
October 20, 2020
Appellate Division, First Department

Plaintiff, an employee of third-party defendant Dorvillier, was working as a laborer on a renovation project at 184 Berkeley Place, in Brooklyn. He injured his hand and leg while using an allegedly defective mill grinder. Defendant Jane Buckwalter owned the premises, a four floor, two-family brownstone. The top floor residence was occupied by a tenant couple, defendant resided in the two middle floors of the building, and one of the ground floor medical offices was rented, while defendant, a psychologist, used the other.

The project was to demolish an old set of iron stairs leading to the second floor at the rear of the building and build an open-air porch at that level. The new porch would be accessible only through defendant’s kitchen. Defendant stated the renovation was intended for her residential use alone. Defendant did not supervise or control Dorvillier’s work and all tools were provided by Dorvillier. Defendant was not home when the accident occurred, and she had never met plaintiff. The trial court granted Jane Buckwalter’s summary judgment motion dismissing the complaint.
 

Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed dismissal of all of plaintiff’s claims; finding that defendant was entitled to the two-family homeowner exemption in the Labor Law. The determination whether the exemption is available to an owner in a particular case turns on the site and purpose of the work.  Here the project was to demolish an old set of iron stairs leading to the second floor at the rear of the building and build an open-air porch at that level. The new porch would be accessible only through defendant’s kitchen. Defendant stated the renovation was intended for her residential use alone. Defendant did not supervise or control Dorvillier's work, and all tools were provided by Dorvillier. Defendant was not home when the accident occurred, and she had never met plaintiff.  Therefore, the work served no commercial purpose and the exemption applied.

 

Deschaine v Tricon Constr., LLC
October 22, 2020
Appellate Division, First Department
 

Plaintiff fell from a scaffold which allegedly lacked side safety rails and Plaintiff was not provided with any other protective devices. The trial court granted plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim as against defendants Tricon and C.P. Plaza Limited.
 
Labor Law § 240(1) (DRA) 
The First Department unanimously affirmed; finding Plaintiff made a prima facie showing that defendants failed to provide him with proper protection from the risk of falling from a scaffold and this failure was a proximate cause of his injuries, as it is undisputed the scaffold from which he fell lacked side safety rails and plaintiff was not provided with any other protective devices. 
 
In opposition, the Court held defendants failed to raise an issue of fact. Given the inadequacy of the scaffold, even if, as they contend, plaintiff suffered from a preexisting medical condition, that condition could not be the sole proximate cause of his injuries (Lajgi v New York City Tr. Auth., 23 AD3d 159 [1st Dept 2005]).
 
PRACTICE POINT:  There was no evidence that the plaintiff fainted due to a preexisting medical condition causing the fall, but even if that was the case the fact that the scaffold lacked safety devices (rails) it was not adequate to prevent a fall. 

 

Sinera v Bedford-Webster LLC
October 22, 2020
Appellate Division, First Department

Plaintiff was injured when a concrete floor he was working on collapsed, causing him to fall.  According to Plaintiff’s testimony, there was a sizeable crack in the concrete floor prior to the date of loss. Expert testimony of a Licensed Engineer was offered to show that had the area been inspected, it would have revealed there was a foreseeable risk that the floor would have collapsed due to Plaintiffs weight combined with the weight of the construction materials and forklift. 
 
The trial court denied defendant 3170's and third-party defendant Joy’s motion for summary judgment dismissing the complaint and crossclaims as against 3170 and the third-party complaint, denied defendant/third-party plaintiff Bedford-Webster LLC's motion for summary judgment dismissing the complaint and on its third-party claims for contractual and common-law indemnification, and denied defendants B-W’s motion for summary judgment dismissing the complaint as against them. 

Labor Law § 240(1) (DRA) 
The First Department unanimously affirmed; finding triable issues of fact exist as to whether the collapse of the subject floor was foreseeable (see Jones v 414 Equities LLC, 57 AD3d 65, 79-80 [1st Dept 2008]; Garcia v Neighborhood Partnership Hous. Dev. Fund Co., Inc., 113 AD3d 494, 495 [1st Dept 2014]), given the testimony regarding prior cracks in the flooring, and plaintiff's expert’s findings that a proper inspection would have revealed the condition of the floor as well as the foreseeable risk of floor capacity overloading and the resulting collapse of the floor.
 
PRACTICE POINT:  Where the injury was caused by a foreseeable risk which could, and should, have been protected against by an appropriate safety device summary judgment for the plaintiff will result.
 
Labor Law § 241(6) (MAS)
The First Department affirmed the trial court’s decision denying defendants’ summary judgment motions dismissing the Labor Law § 241(6) claim as material issues of fact exist as to whether defendants violated Industrial Code (12 NYCRR) § 23-2.1(a)(2) relating to “Maintenance and housekeeping.” That regulation states “[m]aterial and equipment shall not be stored upon any floor, platform or scaffold in such quantity or of such weight as to exceed the safe carrying capacity of such floor, platform or scaffold. Material and equipment shall not be placed or stored so close to any edge of a floor, platform or scaffold as to endanger any person beneath such edge.”
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed denial of defendants’ motions for summary judgment as to Labor Law § 200 and common-law negligence, finding triable questions of fact as to whether the collapse of the subject floor was foreseeable (i.e., defendants could have had constructive notice of the dangerous condition). It noted testimony regarding prior cracks in the flooring, and plaintiff's expert's findings that a proper inspection would have revealed the condition of the floor as well as the foreseeable risk of floor capacity overloading and the resulting collapse of the floor.
 
Indemnity Issues in Labor Law (BFM)
Due to the existence of issues of fact as to defendants’ liability, the First Department held that the trial court properly denied the defendants’ contractual and common-law indemnity claims.

 


Romano v One City Block LLC
October 22, 2020
Appellate Division, First Department

Plaintiff was working on an unsecured ladder when it allegedly shifted and moved, causing him to fall. The trial court denied plaintiffs’ motion for partial summary judgment on the issue of liability on the Labor Law § 240(1) claim.

Labor Law § 240(1) (DRA) 
The First Department unanimously affirmed; finding Plaintiff established his entitlement to summary judgment with his testimony that the unsecured ladder on which he was performing his work shifted and moved, causing him to fall (see Fanning v Rockefeller Univ., 106 AD3d 484, 484-485 [1st Dept 2013]). It also found Plaintiff’s affidavit did not conflict with his deposition testimony regarding how the accident occurred. 
 
However, the Court found an issue of fact because the accident report, which was completed by plaintiff's foreman on the date of the accident and was based on the foreman's conversation with plaintiff right after the accident, stated that "[w]hen coming down the ladder [plaintiff] slipped off of the step, falling to the ground." Plaintiff’s account that the ladder shifted, causing him to fall, as he reached up for the conduit while standing on the fourth rung contradicts the accident report and the foreman's testimony. Because plaintiff could not have slipped off of the ladder while descending, and at the same time fallen from the fourth rung while performing work, the Court found issues of fact and credibility exists as to how the accident occurred.
 
PRACTICE POINT:  A good reminder of why a careful review of all accident reports and medical records is essential to the defense of a Labor Law case.  The existence of multiple versions of how the accident occurred, and where one of them does not support a Labor Law claim, a question of fact must be found.  This is a major reason we have our 24-hour response team to lead an investigation to collect all available evidence to support a valid defense. 

 

Jones v Saint Rita's R.C. Church
October 7, 2020
Appellate Division, Second Department

Plaintiff was working as a set dresser for a film production on location at a school owned by defendants. On Wednesday, April 13, 2016, plaintiff was working in a classroom that had double pane and double sash windows that opened into the room in a horizontal position. All of the windows were screwed shut. According to plaintiff’s coworker, when it became hot in the classroom, another set dresser removed the screws from one of the windows with screw gun, but, rather than slide up as anticipated, the window opened by dropping forward into the classroom. The crew member put the window back and screwed it into place in its original closed position.

Plaintiff and her coworkers returned to the classroom on Friday, April 15, 2016, after filming had been completed, to remove items from the set. The window that had been previously screwed in place was halfway open and did not have any screws in it. As plaintiff bent down in front of the window to pick up an empty box off the floor, the frame of the lower sash of the window hit her in the back of her head, injuring her. The trial court granted defendants’ motion for summary judgment dismissing the Labor Law § 200 and common law negligence claims.

Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed dismissal of plaintiff’s Labor Law § 200 and common-law negligence claims. First, the Court set out the elements of a cause of action for negligence. It stated a plaintiff must demonstrate (1) a duty owed by defendant to plaintiff; (2) a breach of that duty; and (3) an injury suffered by plaintiff which was proximately caused by the breach. It further stated: Defendants are liable for all normal and foreseeable consequences of their acts. However, “an intervening act constitutes a superseding cause sufficient to relieve a defendant of liability if it is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct.” Normally, whether an act is foreseeable is a question of fact for a jury. However, where only one conclusion may be drawn from the established facts, summary judgment is appropriate.
 
In this case, the Court found that the window being unscrewed and opened was an intervening act that relieved the defendants of liability. Although opening a window normally is foreseeable, the defendants had screwed the window shut, which was a plain indication that it was not supposed to be opened. The window was only able to be opened using tools to remove multiple screws and, in the normal course of events, a person would have refrained from opening the window when he or she saw that it was screwed shut. When the window was screwed shut, it was not inherently dangerous. The accident was allegedly caused not by any act or omission of the defendants, but rather the film crew's removal of the window screws and opening of the window, which created a dangerous condition, for which the defendants were not responsible. The intervening act of unscrewing the window and opening it, therefore, was unforeseeable in the normal course of events, and was sufficient to relieve defendants of liability.

 

Winter v State of New York
October 7, 2020
Appellate Division, Second Department

On July 28, 2014, claimant was allegedly injured while operating a jackhammer on or near the Heckscher Bridge in Islip. At the time, he was employed by Village Dock, Inc., which had entered into a contract with the NYSDOT to perform certain construction work at the site. On July 21, 2017, claimant moved for leave to file a late claim pursuant to Court of Claims Act § 10(6) against the State, the owner of the bridge, alleging violations of Labor Law §§ 240(1), 241(6), and 200. The Court of Claims denied the motion. 

Labor Law § 240(1) (DRA) 
The Second Department affirmed; finding that the Court of Claims Act § 10(3) requires that a claim must be filed and served upon the attorney general within 90 days after the accrual of such a claim. However, the Court of Claims Act § 10(6) permits a court, in its discretion, upon consideration of enumerated factors, to allow a claimant to file a late claim. In this case, claimant failed to demonstrate a reasonable excuse for his failure to file a timely claim, the State had notice of the essential facts constituting the claim, and the State had an opportunity to investigate his claim. Claimant also failed to sustain his initial burden of demonstrating that the State would not be substantially prejudiced by the filing of the untimely claim (see Tucker v New York State Thruway Auth., 175 AD3d 632 633 [2d Dept 2019]).

PRACTICE POINT:  Where the state is a defendant a Notice of Claim must be filed within 90 day.  While motions to allow for a motion to extend the time to file the Notice of Claim it is always important to oppose that motion thoroughly, and to remember that the burden is on the moving party to prove the lack of prejudice to the state.  General Municipal Law section 50-e requires a similar Notice of Claim within 90 days to bring a suit against any municipal entity so the same advice exists for that situation.

 

Ahmed v F & G Group, LLC
October 21, 2020
Appellate Division, Second Department

 
Plaintiff was injured while working as an employee of Z & Z in a building owned by F & G. The building was being renovated by a subcontractor, Expert which erected a sidewalk bridge scaffold on the building exterior. Plaintiff unilaterally decided to climb on top of the scaffold by using its horizontal piping and cross brace rather than a readily available ladder. During the attempt, he tried to “jump” from the pipes and grab a metal beam but lost his grip and fell. Plaintiff’s supervisor’s explicit directive was to use the nearby ladder, which his supervisor used to safely ascend to the top of the scaffold only seconds before Plaintiff fell. Plaintiff had used the very same ladder hours before the accident to ascend the scaffold and acknowledged at his deposition that he was supposed to use the ladder.
 
The trial court denied plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim and granted. F & G’s and Expert’s separate cross-motions for summary judgment dismissing the complaint against each of them. A special thank you to Kristen Carroll, Esq. of Lewis Brisbois for her contribution and assistance on this case analysis.
 
Labor Law § 240(1) (DRA) 
The Second Department affirmed; finding that F & G and Expert established their prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 240(1) claim asserted against each of them by demonstrating that plaintiff's actions were the sole proximate cause of his injuries (see Robinson v East Med. Ctr., LP, 6 NY3d 550, 554; Montgomery v Federal Express Corp., 4 NY3d 805, 806; Tukshaitov v Young Men's & Women's Hebrew Assn., 180 AD3d 1101, 1103). In opposition, the Court held that plaintiff failed to raise a triable issue of fact and also held plaintiff failed to prove his entitlement to summary judgment on his motion.
 
PRACTICE POINT:  This may well be the perfect example of the sole proximate cause defense.  The plaintiff had an appropriate safety device, which was available to the plaintiff on site, which the plaintiff was instructed to use and knew he was expected to use, which he failed to use or misused for no good reason.  Summary judgment for the defense.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed dismissal of plaintiff’s complaint as against the defendants. It held that F & G and Expert established that they did not have the authority to supervise or control the plaintiff's actions, and did not have actual or constructive notice of the alleged dangerous condition, and plaintiff failed to raise a triable question of fact in opposition.
 

 

Zukowski v Powell Cove Estates Home Owners Assn., Inc.
October 21, 2020
Appellate Division, Second Department

 
Plaintiff slipped and fell twice on ice at premises being built by the defendants AVR and Powell Cove Associates, LLC (hereinafter together with AVR, the defendants). Plaintiff was performing excavation work for his employer, third-party defendant Jaman pursuant to its contract with AVR. Defendants commenced a third-party action against Jaman and third-party defendant A-One asserting claims against each for contractual and common-law indemnification and to recover damages for failure to procure insurance.
 
The trial court denied defendants motion for summary judgment dismissing plaintiffs’ claims alleging a violation of Labor Law § 241(6) as was predicated upon an alleged violation of 12 NYCRR 23-1.7(d), a violation of Labor Law § 200 and common-law negligence, as well as on their third-party claims seeking contractual indemnification from Jaman and A-One. The trial court also denied A-One’s separate motions for summary judgment dismissing the third-party complaint and dismissing Jaman's cross claim for contribution as asserted against it.
 
Labor Law § 241(6) (MAS)
Plaintiff relied on a violation of regulation 23-1.7(d), entitled slipping hazards, which is sufficiently specific to support a Labor Law § 241(6) claim. Plaintiff testified the subject path was his only means of going to and from the excavator and the path was flanked by piles of snow that were several feet high. This testimony, which was submitted by defendants in support of their motion, failed to eliminate triable issues of fact as to whether the subject area traversed by plaintiff constituted a “walkway” under the regulation and, if so, whether there was a violation of the statute and whether that violation was a proximate cause of the accident.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed denial of defendants’ motion for summary judgment as to the Labor Law § 200 and common-law negligence causes of action. It found that it was undisputed defendants had control over the work site. Nevertheless, defendants attempted to argue that plaintiff failed to show that defendants created or had actual or constructive notice of the claimed dangerous condition. This, however, as the Court properly noted, was an inversion of the burden of proof on summary judgment. Instead, it was defendants who failed to show that they did not cause, create, or have actual or constructive notice of the alleged icy conditions which caused the injured plaintiff to fall. In fact, plaintiff’s testimony, submitted in support of defendants’ motion, presented triable issues of fact as to whether the defendants knew about the inches of ice that had accumulated on both the tracks of the excavator plaintiff was operating and the only path by which plaintiff could reach the excavator. Plaintiff alleges that he slipped on the ice on the tracks of the excavator and the ice on the path to the excavator at approximately 8:30 a.m. Defendants also submitted certified meteorological records which did not, as defendants suggested, show as a matter of law it was impossible for a dangerous icy condition to have been present.
 
Indemnity Issues in Labor Law (BFM)
It is well established that a party seeking contractual indemnification must establish that it was free from negligence and that it may be held liable solely by virtue of statutory or vicarious liability. As defendants failed to demonstrate that they were free from negligence, the Second Department held that they failed to show a prima facie entitlement to contractual indemnification from either Jaman or A–One.  Furthermore, the Court pointed out that the applicable contractual indemnification provisions only applied to losses or injuries due at least in part to the acts of the indemnitors. As defendants failed to make the requisite showing that Jaman or A–One was negligent, they were not entitled to summary judgment.
 
Lastly, the Court held that A–One was not entitled to dismissal of the claim for common-law indemnification, as questions of fact existed as to whether A–One, and not defendants, was at fault for the happening of the accident.
 

 

Lojano v Soiefer Bros. Realty Corp.
October 28, 2020
Appellate Division, Second Department


Plaintiff was injured when he fell approximately thirteen feet from a makeshift scaffold while performing construction work at a building owned by Soiefer and leased by ASIF. ASIF had a warehouse at the subject location and had hired plaintiff’s employer, 21st Century Construction, to separate a portion of the warehouse with metal studs, sheetrock, and taping. Abraham Lokshin was a member of ASIF and the owner of 21st Century Construction. Lokshin rented a scissor lift for the project and believed that plaintiff's work could be performed from the scissor lift. Plaintiff used the scissor lift for his work for a couple of weeks.

However, according to plaintiff, the day before his accident, Lokshin told him that it was taking too long to complete the work this way, and plaintiff should build a scaffold. According to plaintiff, Lokshin and plaintiff built a makeshift scaffold together that day. Plaintiff used the scissor lift to elevate himself and his work materials to the level of the makeshift scaffold, and then he stepped onto the scaffold to work. Plaintiff worked in this manner the day prior to the accident and in the morning on the day of the accident without incident. According to plaintiff, after lunch on the day of the accident, while he was working on the makeshift scaffold, Lokshin came and removed the scissor lift to another area. Sometime thereafter, plaintiff fell from the makeshift scaffold. He had no memory of falling, and awoke sometime later in the hospital

The trial court denied the motion of the defendant ASIF for summary judgment dismissing the Labor Law § 240(1) claim and the § 241(6) that was predicated on a violation of 12 NYCRR 23-5.1(e) asserted against it and, upon searching the record, awarded summary judgment to plaintiff on the Labor Law § 240(1) claim. The order also denied the motion of  Soiefer for conditional summary judgment on its crossclaim for common-law indemnification against ASIF, and, upon searching the record, awarded summary judgment to plaintiff under § 240(1) claim.

Labor Law § 240(1) (DRA) 
The Second Department unanimously affirmed; finding that contrary to ASIF's contention, the evidence it submitted in support of its motion did not establish that plaintiff was a “recalcitrant worker” who chose to use an improper safety device when a proper one was readily available. Rather, the evidence demonstrated that, although plaintiff was provided with the scissor lift and used it to perform his work in the weeks leading up to the accident, the day before the accident, his supervisor directed him to use the makeshift scaffold, which they built together, in order to expedite his work. Plaintiff's testimony in this regard was uncontroverted, as was his testimony that some time before the accident, the scissor lift was removed from the area where plaintiff was working. As a result, his actions could not be considered the sole proximate cause of the accident. 
 
Further, because the evidence established that plaintiff was not afforded the proper protection for the work being performed, and that this failure was a proximate cause of his injuries, the Court affirmed trial court’s exercise of its discretion in searching the record on ASIF's motion and awarding summary judgment to plaintiff on his Labor Law § 240(1).
 
PRACTICE POINT:  Where the safety devise being used by the plaintiff is not appropriate and fails to protect the plaintiff, summary judgment will be awarded to the plaintiff.  This emphasizes the need to retain an expert to opine on the appropriateness of the provided safety device supplied to and being used by the plaintiff.  If there is a “battle of the experts” as to the appropriateness of the supplied safety device a question of fact exists which can only be determined by a jury as the trier of fact.
 
Labor Law § 241(6) (MAS)
The Second Department affirmed denial of ASIF’s motion on the § 241(6) based on 23-5.1(e) because ASIF failed to make a prima facie showing that this sufficiently specific regulation did not apply to the facts of this case, or that the alleged violation thereof was not a proximate cause of plaintiff’s injuries.
 
Indemnity Issues in Labor Law (BFM)
The trial court denied that branch of Soiefer's motion for conditional summary judgment on its cross claim for common-law indemnification against ASIF.  The Second Department affirmed, finding that Soiefer failed to eliminate triable questions of fact concerning the degree of fault attributable to each party, and, therefore, conditional summary judgment on the basis of common-law indemnification was premature.


 

Barker v Union Corrugating Co.
October 2, 2020
Appellate Division, Fourth Department

 
Plaintiff fell from a roof while working on a roofing project at a private residence. Defendant Union manufactures metal roofing materials, and defendant Lowe's sells such materials. Defendants entered into an agreement whereby Lowe's agreed to sell Union's roofing materials to consumers, and both defendants entered into contracts with plaintiff's employer pursuant to which plaintiff's employer agreed to install Union's roofing materials that were sold by Lowe's. Lowe's also entered into an agreement whereby it agreed to sell to the owners of the residence Union's roofing materials, which were to be installed by plaintiff's employer.
 
The trial court granted in part and denied in part the motion of defendants for summary judgment, dismissed the complaint against defendant Union, and granted that part of plaintiff's cross motion seeking summary judgment against defendant Lowe's on the Labor Law § 240(1) claim.
 
Labor Law § 240(1) (DRA) 
The Fourth Department affirmed the order insofar as it denied defendants' motion and granted plaintiff's cross motion with respect to the Labor Law § 240(1) claim against Lowe's and further granted the cross-motion with respect to Lowe's eighth affirmative defense. Plaintiff met his initial burden on the cross-motion with respect to § 240(1) claim against Union by establishing that defendants failed to provide appropriate safety devices, that he was working at an elevated work site, and that the statutory violation was a proximate cause of his injuries, and defendants failed to raise a triable issue of fact in opposition thereto.
 
The sole issue on plaintiff's appeal concerns whether Union is a contractor within the meaning of the statute. Plaintiff submitted evidence establishing that Union entered into a contract with plaintiff's employer to install the roofing materials at issue and the contract provided Union with the power to perform inspections, stop work, and remove plaintiff's employer from the job.
 
PRACTICE POINT:  The issue of who is an appropriate Labor Law defendant is central to every Labor Law case.  Our analysis of every Labor Law case starts with the same four questions.  Is the plaintiff an appropriate plaintiff?  Is the defendant an appropriate defendant?  Is the project one which is covered under the enumerated activities for which the plaintiff is afforded the protections of the Labor Law?  Was the specific mechanism on injury one which is derived from a lack of an appropriate safety device?  Here the def was a contractor who had the authority to control the means and methods of the injury producing work and was thus an appropriate defendant.

 
 

Shaw v Scepter, Inc.
October 9, 2020
Appellate Division, Fourth Department

 
Plaintiff was injured while unloading a man lift from the back of a flatbed truck onto premises owned by defendant. In order to unload the lift, plaintiff climbed into the lift's basket, which extended from the body of the lift towards the front of the truck. The basket itself was one foot over the flatbed, and the flatbed was three feet off the ground. When plaintiff tried to maneuver the lift, it unexpectedly rolled off the back of the flatbed, falling to the ground and causing the basket to come crashing down onto the flatbed. The Supreme Court granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion.
 
Labor Law § 240(1) (DRA) 
The Fourth Department reversed the trial court; finding that the delivery of equipment is a covered activity if the equipment is being delivered to an active construction site. There was a question of fact regarding what was happening on that site. The deposition testimony submitted on the motion did not contain any information about when the project was to begin or if it had already started.  The Court also held the trial court erred in finding that plaintiff was not subject to an elevation-related risk. Because the falling lift that caused plaintiff to fall onto the flatbed truck and sustain injury, and thus we conclude that the harm to plaintiff "flow[ed] directly from the application of the force of gravity" to the lift (Runner v New York Stock Exch., Inc., 13 NY3d 599, 604 [2009]); see generally Potter v Jay E. Potter Lbr. Co., Inc., 71 AD3d 1565, 1566 [4th Dept 2010]). For the same reasons, the Court affirmed the trial court’s decision in denying plaintiff’s motion for summary judgment on the § 240(1) claim.
 
PRACTICE POINT:  This case has multiple issues to be addressed.  First, a fall by a plaintiff from a flatbed truck is not the type of risk the Labor Law is designed to protect against.  The court in the instant case held that the fall causing the injury was the lift falling, not the plaintiff, and thus did afford the plaintiff the protections of the Labor Law.  Second, injury caused during delivery of equipment to a construction site is only a protected activity if the construction is ongoing at the site when the accident occurs.  Here there was nothing in the motion papers which allowed the court to determine that and thus a question of fact existed.
 
Labor Law § 241(6) (MAS)
The Fourth Department agreed with plaintiff that the trial court erred in dismissing the § 241(6) claim based on regulations 9.2(a) and 1.5(c)(3). The Court found issues of fact whether the lift was defective and, if so, whether defendant had the requisite notice of the defect, and those issues preclude summary judgment on either party based on plaintiff’s testimony that the lift could not be unloaded from the truck by using the truck’s winch because the lift’s freewheeling mechanism was defective, and further that he reported the defect to his employer. Another employee, however, provided deposition testimony that he used the exact same man lift 100 times and it had no mechanical issues.

 

12 NYCRR § 23-1.21 – Protection in Construction and Excavation Operations; Ladders and ladderways; Extension ladders and section ladders.
Regulation § 1.21(d), which pertains to extension ladders and sectional ladders, contains specific commands that support a Labor Law § 241(6) cause of action.
Sochan v Mueller., 162 AD3d 1621, 78 NYS2d 608 (4th Dept 2018).
 
Sochan held that 1.21(d) did not apply where π used the top half of an extension ladder as a single ladder.
 

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