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Labor Law Pointers - Volume IX, No. 2

 
 

Labor Law Pointers

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

Volume IX, No. 2
Thursday, January 2, 2020

 

From the Editor:
 
Do you have a situation?  We love situations.  We are always here to help with your situation.
 
To better serve you in the solution of your situations, we have expanded our Labor Law team, adding two new members.
 
Tim Welch is joining the team and will be based in Rochester.  Tim has 19 years of experience and his practice has been largely focused on Labor Law for the past nine years.  He provides us with another trial-tested and experienced senior attorney who not only deepens our bench, but also expands our geographic footprint eastward.  We welcome Tim to the firm and to the team, and look forward to many good times, and results, to come.
 
Brenna Gubala is also joining the firm and the team.  She will be splitting time between the Labor Law team and Jody’s premises liability team.  Brenna has substantial experience handling Labor Law cases and is an enormous asset to the team and to the firm.
 
This leaves us with experienced Labor Law attorneys in three separate locations: the NY Metro area, Buffalo, and Rochester.  We are available to handle any Labor Law or Risk Transfer issues across the state.
 
That is only a portion of the services we offer.  We team with our coverage department to provide Risk Transfer options from Common-Law Indemnity and Contribution to Contractual Indemnity and Contribution, and Additional Insured Status.  We are uniquely situated by our ability to offer top-level experienced Labor Law attorneys and world-class coverage counsel, to make the most of every risk-transfer opportunity.  The team effort of the two departments is a real benefit to our clients and carriers.
 
On to my favorite part of the month; our Labor Law brain teasers.
 
In our first photo of the month, we have what appears to be a self-leveling scaffold which, by all reports, failed when the left-side support, named Kevin, reached for his cell phone to respond to a text and lost his balance, causing his co-worker to fall from the plank and sustain injury.  This occurred despite the fact that his boss, the soon-to-become plaintiff, strictly informed him that he was to turn his ringer off and not use his phone while serving as an integral portion of the self-leveling scaffold.  The men were in the process of installing insulation on a new build for their employer, the general contractor.  Labor Law case?
 

 
The plaintiff fell from a safety device that no expert will ever opine was appropriate for the intended task and thus, the plaintiff has a prima facie case under § 240(1).  Sole proximate cause seems like the only potential defense available to the owner, but that seems unlikely because, in spite of the plaintiff telling his co-worker not to answer the phone, a person is not – in virtually every circumstance – a safety device.  Thus, the plaintiff not only was not provided an adequate safety device, but the actions of a co-worker also contributed to the event. Therefore, his conduct could not be the sole proximate cause of the accident.
 
Next, we have a demonstration of one of my dad’s favorite statements, originally from Archimedes: “Give me a big enough lever and a fulcrum on which to place it, and I shall move the world.”  Here we have a woman who just bought a new property and decided to renovate it, with the help of her family.  Her brother offered to help and was repairing the concrete patio.  He needed to get a bit further out to work on the end when his sister recalled her earlier study of Archimedes and set up the lever on which you see him standing.  Needless to say, her brother, now referred-to-as “the plaintiff,” would wind up on the ground a story below with leg injuries.  Labor Law case?
 
 
 
Starting from the happening of the accident, plaintiff fell from a height due to an inappropriate safety device.  Next, we need to see if the sister/property owner is a proper defendant.  She would be entitled to the home owner exception; BUT, recall that she supervised, directed, or controlled the means and method of the work and thus, she is not protected from § 240(1) exposure.  Her luck has not completely run out, however, as her brother, who offered to help, was a volunteer and not “a person so-employed.”   Thus, he is not entitled to the protection afforded by the Labor Law and his case will be dismissed.
 
Here, we have three men who were offered pay in return for painting the name of an organization of like-minded individuals, on a bridge in Los Angeles, to denote the extent of the local region they deemed to be under their control; Graffiti if you will.  But they were to be paid for this bit of artistic expression.  Will they have a Labor Law case?
 

 
Hopefully, you did not get too caught up in analysis here.  They were paid and thus persons so employed.  They were painting, an enumerated and protected activity.  They fell from a height, and thus would seem to have a prima facie case.  However, recall that only the great State of New York still has a Draconian law such as the Scaffold Law, § 240(1), and thus, in California, the owner of the bridge can rest easy.
 
Here, we have a plaintiff who was told, on numerous occasions, that climbing a ladder in his rollerblades was inappropriate. He was specifically directed never to do so AND was even given a pair of work boots, when he complained that all he had was rollerblades.  One fine day, just back from an invigorating lunch-time skate, the plaintiff forgot to remove his rollerblades and climbed a ladder to get back to work on the construction project as an electrician.  You see, in addition to his ability to get to the gang box more quickly, the plaintiff felt that the insulating properties of the wheels actually made it safer to work in rollerblades than in boots.  In addition, he felt it only fitting, as they were rewiring a roller blade store.  Labor Law case?
 

 
No.  § 240(1) is a Draconian, harsh law; but not that harsh.  Plaintiff was a recalcitrant worker.  He was not only told specifically not to climb a ladder in rollerblades, but actually was provided with proper work boots. 
 
As we start a new year, I want to take a minute and thank all the clients and carriers who have entrusted us with their cases.  We know the importance of what we do and the severe impact it can have on all involved.  We strive daily to provide the best service we can, to each and every client and carrier, in a team atmosphere, so that we can achieve the best outcome for the client, in a timely manner.  I would be remiss if I did not acknowledge the quality team we have assembled, now eight-attorneys deep, and the entire support organization we so depend on, for their work over this year.  I know that I am an anomaly; no one else actually likes the Labor Law.  Who would as a defense attorney?  But I love it.  A constant challenge, but one made fun by the people who have come to make up a team and a family. 
 
So, thanks to all our subscribers and best wishes for a healthy and prosperous 2020.

Don’t forget to subscribe to our other publications:

Coverage Pointers: This twice-monthly electronic newsletter summarizes important insurance law decisions from appellate courts in New York State with the occasional snapshot across borders. Coverage Pointers, the electronic newsletter that started it all, continues to offer guaranteed publication every other Friday, and a read-at-a-glance summary of important decisions as they happen. Contact Dan Kohane at [email protected]  to be added to the mailing list.

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 PointersComing Soon:  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.


David

 
David R. Adams
Hurwitz & Fine, P.C.
424 Main Street
Suite 1300 Liberty Building
Buffalo, New York 14202
Phone:  716.849.8900
Direct:  716.849.8916
Fax:  716.855.0874
Cell:  716.553.6901
Email:  [email protected]
H&F Website:  www.hurwitzfine.com
 

Labor Law Pointers is published the first Wednesday of each month.  If you know of others who may wish to subscribe to this free publication, please feel free to forward it.  If you wish to subscribe, please do so here or call the Editor/Labor Law Team Leader David R. Adams directly at (716) 849-8916.

 

Borrero v ACC Constr. Corp.
December 3, 2019
Appellate Division, First Department

 
Plaintiff allegedly fell during a renovation, over what she described as a “crater crack” in the concrete, but she could not describe the defect in any dimensional manner.  She testified the area in photographs taken by defendants was not the area of her fall, and she did not take her own photographs until the floor had been patched with sealant.  Defendants’ witnesses denied seeing any “crater crack,” and while plaintiff believed the defect was caused by ACC or one of its subcontractor’s dropping debris, she had no evidence of this theory.
 
The trial court granted defendants’ summary judgment motion dismissing the complaint and all cross claims.
 
Labor Law § 241(6) (MAS)
The First Department affirmed the trial court’s dismissal of the Labor Law § 241(6) claim based on an alleged violation of Industrial Code (12 NYCRR) regulation 23-1.7(e)(1), because plaintiff’s accident occurred in an open room, located about a foot-and-a-half away from the entrance leading to a passageway, but not in the passageway itself.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed dismissal of plaintiff’s claims pursuant to Labor Law § 200 and common-law negligence, based on the evidence (or lack thereof) regarding the alleged defect, since any finding on notice would be based on pure speculation.
 
PRACTICE POINT: In order to maintain a Labor Law § 200 cause of action based on an allegedly unsafe condition on premises, the plaintiff must demonstrate that the defendant had actual or constructive notice of the alleged unsafe condition that caused the accident.  That notice, however, must be of the specific condition and of its specific location.  Canning v. Barnes N.Y., 289 A.D.2d 32 (1st Dep’t 2001). If it can’t be identified, there can’t be notice.
 
 

Garcia v SMJ 210 W. 18 LLC
December 10, 2019
Appellate Division, First Department

 
Plaintiff was on a temporary exterior platform on the 21st floor of a building under construction, when he allegedly was struck and injured by a falling piece of DensGlass, an exterior sheetrock material, which matched the size of a missing piece of sheetrock one floor above.  Plaintiff was in the process of dismantling a bridge that was linked to the exterior hoist elevator.  The trial court denied plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim and granted the cross-motions of defendants to dismiss the Labor Law §§ 240(1) and 241(6) claims.
 
Labor Law § 240(1) (DRA)
The Frist Department unanimously reversed; holding plaintiff established his entitlement to judgment as a matter of law on the issue of liability on his Labor Law § 240(1) claim, based on the record evidence that a piece of the exterior facade of the building still under construction fell on him, that workers were performing patch work to the DensGlass on the floors above plaintiff, and that the exterior facade was not complete.
 
PRACTICE POINT:  When a piece of the building under construction falls off the building, it is a bit of a stretch to find that the piece is not one that needs securing.
 
Labor Law § 241(6) (MAS)
The First Department unanimously reversed and denied defendants’ cross-motion for summary judgment, finding triable issues of fact as to whether the area where the accident occurred was “normally exposed to falling materials or objects” requiring that plaintiff be provided with “suitable overhead protection” under Industrial Code regulation 23-1.7(a)(1).
 
 

Brown v 43-25 Hunter, L.L.C.
December 12, 2019
Appellate Division, First Department


Plaintiff testified that he slipped and fell twenty feet to the concrete ground from an allegedly-wobbly, wet ladder.  His foreman provided an affidavit that was consistent with plaintiff’s account of the fall.  The trial court granted plaintiff’s motion for partial summary judgment as to liability with respect to his Labor Law §§ 240(1) and 241(6) claims.

Labor Law § 240(1) (DRA)
The First Department unanimously affirmed; finding plaintiff established prima facie entitlement to partial summary judgment, and defendants failed to raise a triable issue of fact about whether the accident occurred in the manner described by plaintiff.  Defendants submitted the affidavits of two medical experts and a biomechanical engineer, each of which, the Court held contained only speculative, conclusory statements that plaintiff’s injuries were inconsistent with the fall, as described.
 
PRACTICE POINT:  Where the focus of the defense is that the accident did not occur as described by the plaintiff, the opinion of the defense experts needs to be more than speculation.  Some departments find more speculation than others.
 
 

Ramirez v A.W.&S. Constr. Co., Inc.
December 19, 2019
Appellate Division, First Department

 
Plaintiff was employed as a laborer for non-party Calvin Maintenance; a subcontractor retained by Waldorf.  Plaintiff was performing demolition as part of a gut renovation on the 73rd floor of the Empire State Building.  He was attempting to cut wire to bring down electrical lamps and the ceiling, and to make the room clean for other workers, when his co-worker tore down a neighboring wall, causing him to be struck and injured by the falling sheetrock.  The Empire defendants were the owner entities and A.W.&S was the construction manager and general contractor for the job.
 
The trial court denied defendants’ motion for leave to reargue their summary judgment motion, but then, in actuality, permitted reargument.  On reargument, the trial court adhered to its prior determination, which denied summary judgment to plaintiff and dismissed the Labor Law § 241(6) claims based on violations of Industrial Code 23-3.4, and all subsections of Industrial Code 3.3 except for 3.3 (b)(3) and (c), and by denying that portion of defendants’ motion seeking dismissal of the Labor Law §§ 240(1) and 200 claims.
 
Labor Law § 240(1) (DRA)
The First Department unanimously affirmed the trial court; finding issues of fact existed whether plaintiff was engaged in protected activity under Labor Law §§ 240(1) and 241(6) at the time he was injured. Plaintiff, through his expert, a certified site safety manager, met his prima facie burden that the wall should have been secured with a six-foot scaffold, stays, blocks, braces, irons, or other similar devices erected next to the interior sheetrock to act as a support and prevent it from falling onto the plaintiff as he performed his work on the ceiling.  The parties provided conflicting testimony as to whether plaintiff was actually removing light fixtures and part of the ceiling, or merely clearing the floor and moving carpeting, raising credibility issues that warranted denial of summary judgment to either party under Labor Law § 240(1). 
 
The Court further held defendants were not entitled to summary judgment because, although § 240(1) does not impose liability for failure to provide protective devices when the goal of the work is to cause a wall or object to fall,  Securing the wall is required “where doing so is not contrary to the work plan”, citing Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y. 3d 1, supra at pg. 11).  The collapse of a wall, when plaintiff was merely sweeping the floor, however, presents only the ordinary hazard of working on a construction site.  Defendants’ expert, testified the wall did not come down because of issues with structural integrity, it was because plaintiff's co-workers demolished it, and therefore, there was no need for devices to protect plaintiff from elevated risks as required by the statute as using a device would be “illogical and impracticable” since demolition requires the walls to fall to the ground.
 
There was no disagreement between the experts as to the adequacy of the safety device provided; only, whether a device was required at all.
 
PRACTICE POINT:  Two separate issues here to be addressed.  First, where there is a question of fact as to what the plaintiff was doing when injured, the outcome must be a question of fact where one supports a Labor Law claim and the other would dismiss that claim.   Second, there is a question as to whether the wall which fell on the plaintiff was an object in need of being secured, or whether it was the object actually being taken down at the time of the accident; again, necessarily resulting in a question of fact.
 
Labor Law § 241(6) (MAS)
Regulation 3.3(b)(3) states “Walls, chimneys and other parts of any building or other structure shall not be left unguarded in such condition that such parts may fall, collapse or be weakened by wind pressure or vibration.”  The First Department affirmed the trial court’s finding that defendants failed to make a prima facie showing on summary judgment because they relied on hearsay testimony from multiple witnesses (who were not present at the time of the accident) stating the wall fell solely because it was knocked down by plaintiff’s coworkers.  The Court also found plaintiff’s argument that the structural integrity of the wall was weakened as a result of his tearing down of light fixtures and parts of the ceiling, raised an issue of fact.
 
Regulation 3.3(c) states “During hand demolition operations, continuing inspections shall be made by designated persons as the work progresses to detect any hazards to any person resulting from weakened or deteriorated floors or walls or from loosened material. Persons shall not be suffered or permitted to work where such hazards exist until protection has been provided by shoring bracing or other effective means.”  The First Department affirmed the trial court’s finding that defendants failed to show compliance with this regulation and plaintiff raised an issue of fact based on testimony that there had not been any continuing or contemporaneous inspections of the wall to determine whether it was weakened by the ongoing work.  Additionally, the conflicting testimony as to whether plaintiff was pulling down the ceiling and light fixtures or only cleaning the floor and moving carpet, further warranted denial of summary judgment.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed, finding there were questions of fact as to whether Waldorf exercised supervision and control over plaintiff’s work.
 
 

Gilligan v CJS Bldrs.
December 19, 2019
Appellate Division, First Department

 
Plaintiff allegedly was injured when he fell several feet from a scaffold.  The trial court granted the cross-motion of defendant/second third-party plaintiff, CJS, for summary judgment dismissing plaintiffs’ Labor Law § 200 and common-law negligence claims against it, and on its third-party claim for contractual indemnity against second- and third-third-party defendant, Complete. 
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed; finding the accident arose out of the means and methods of the plaintiff’s work, and not a dangerous or defective premises condition.  Moreover, CJS demonstrated it did not exercise the requisite degree of control over the means and methods of the plaintiff’s work at the time of his accident.  Therefore, it was entitled to summary judgment.
 
Indemnity Issues in Labor Law (SEP)
The First Department held, considering the foregoing, CJS also established its entitlement to full contractual indemnification from Complete pursuant to the express terms of its indemnification agreement.

 

Emery v Steinway, Inc.
December 26, 2019
Appellate Division, First Department

 
Plaintiff was installing cabling above a drop ceiling and hit his head on a steel beam, allegedly due to defendants’ failure to provide him with a hard hat (in violation of Labor Law § 241(6), Industrial Code § 23-1.8), and the inadequate lighting of the premises (in violation of Industrial Code § 23-1.30).  The trial court granted defendants’ motions for summary judgment dismissing the Labor Law § 241(6) claim. 
 
Labor Law § 241(6) (MAS)
The First Department reversed; finding plaintiff raised an issue of fact as to whether plaintiff was altering the structure when he was pulling cable above the drop ceiling.  It cited Weininger v. Hagedorn & Co., 91 N.Y.2d 958 (2009), a Court of Appeals case holding that “running cables” is considered to be a “significant physical change” to fall under the purview of alteration and not routine maintenance.  Therefore, the Court found an issue of fact as to whether plaintiff’s work constituted an alteration under Labor Law § 241(6).
 
Additionally, the Court held § 23-1.8(c)(1) is sufficiently specific with respect to the requirement of providing protective apparel, as is § 23-1.30, regarding the obligation to keep work areas illuminated.
 
 

Ferguson v Durst Pyramid, LLC
December 26, 2019
Appellate Division, First Department

 
Plaintiff allegedly fell while trying to access an elevated work platform by stepping up onto an inverted bucket.  The trial court denied plaintiffs’ motion for partial summary judgment on the Labor Law § 240(1) claim and Labor Law § 241(6) claim predicated on Industrial Code § 23-1.7(f).  It granted the motions by defendants Durst Pyramid and Hunter Roberts Construction to dismiss the complaint.
 
Labor Law § 240(1) (DRA)
The First Department reversed, granting plaintiff summary judgment and denying defendants’ motion; finding the protections of Labor Law § 240(1) encompassed plaintiff’s fall and the inverted bucket was an inadequate safety device that failed to provide proper protection.  Moreover, the Court noted defendants failed to cite any evidence rebutting the affidavit by plaintiff’s foreman stating stairs or other access points to the work platform either were restricted or blocked by materials.  Because no other safety devices were available to plaintiff to access the platform, as a matter of fact and law, the Court held plaintiff’s attempt to use the inverted bucket cannot be the sole proximate cause of his accident.
 
PRACTICE POINT:  Where all other access points were unavailable, the plaintiff’s use of a bucket cannot be the sole proximate cause.  Remember the elements; there must be: (1) an appropriate safety device; (2) which is available; (3) that the plaintiff was directed to use or knew he was expected to use; (4) which he misused of failed to use; (5) for no good reason.  Here the court found that the appropriate safety device (stairs to access the elevated work platform) was not available, as it was blocked by materials.
 
Labor Law § 241(6) (MAS)
Because no stairs, ramps, or runways were available to plaintiff to access the platform, the First Department held he was entitled to summary judgment under Industrial Code section 13-1.7(f).

 

Jones v 30 Park Place Hotel LLC
December 26, 2019
Appellate Division, First Department

 
Plaintiff testified that while stepping backward with a wheelbarrow, he tripped over a piece of plywood, which apparently was nailed to the floor of the construction site to cover a hole. The trial court granted defendants’ summary judgment motion to dismiss the Labor Law § 241(6) claim predicated on Industrial Code regulation 23-1.7(e)(1) as well as the Labor Law § 200 and common-law negligence claims.
 
Labor Law § 241(6) (MAS)
The First Department affirmed dismissal of the Labor Law § 241(6) claim because the area where plaintiff tripped and fell was an open area and not a “passageway” within the meaning of Industrial Code section 23-1.7(e)(1).
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed; finding the Labor Law § 200 and common-law negligence claims were correctly dismissed, because defendants neither controlled or directed plaintiff's work nor had notice of the allegedly defective condition of the work site.
 
 

Jara v Costco Wholesale Corp.
December 4, 2019
Appellate Division, Second Department


Plaintiff, a self-employed electrician, was allegedly injured while repairing an electrically-operated, roll-up metal gate for the entrance to premises owned by Costco and leased to Westbury.  The gate had ceased to function and was stuck in the open position.  As a result, Westbury contacted Costco, which then contacted defendant Enertech, who hired plaintiff as a subcontractor to perform the repair.  Plaintiff testified he first attempted to utilize a rolling staircase provided by Westbury to facilitate the repair, but it was not high enough to reach the electrical control boxes and motor control box situated toward the top of the walls of the premises.  Plaintiff then went to his truck and retrieved his own 16-foot, multi-position extension ladder, and brought it back to the store. 

Plaintiff set up the ladder near the north wall to examine the motor control box situated at the top of the rounded steel housing for the gate.  He placed the ladder so the top of it was resting against the rounded housing for the gate. While he was climbing back up the ladder, the ladder slid to the left, causing him to fall toward the right and approximately 10-to-12 feet to the ground.  Plaintiff, and two other witnesses testified at deposition that no one on behalf of Costco was present while plaintiff was performing this work.

The trial court granted plaintiff’s summary judgment motion on Labor Law § 240(1), granted Westbury’s cross-motion for summary judgment dismissing Costco’s cross-claim for contractual indemnification, granted Costco’s cross-motion for summary judgment dismissing the common-law negligence and Labor Law §§ 241(6) and 200 claims against it, denied Costco’s cross motion to dismiss the § 240(1) claim against it, and denied Costco’s summary judgment motion on its cross-claim for contractual indemnification against Westbury.

Labor Law § 240(1) (DRA)
The Second Department affirmed; holding plaintiff established his prima facie entitlement to judgment as a matter of law on the Labor Law § 240(1) claim against Costco by demonstrating that he was injured when he fell while using an unsecured ladder, which unexpectedly collapsed and caused his injuries, without the benefit of any safety devices to prevent such a fall.  In opposition, the Court held Costco failed to raise a triable issue of fact whether the plaintiff’s conduct was the sole proximate cause of his injuries.
 
PRACTICE POINT:  When a plaintiff falls from an unsecured ladder, which slid, causing him to fall, it will be a prima facie case every time.  Simply because the plaintiff set the ladder up, completely by himself, does not constitute sole proximate cause in the First Department.  However, we remain hopeful that the Second Department is moving in that direction.
 
Indemnity Issues in Labor Law (SEP)
The Second Department reversed the trial court and granted summary judgment to Costco for contractual indemnification against Westbury.  Pursuant to the terms of the lease, Westbury was obligated to defend and indemnify Costco with respect to claims for personal injury at the premises, except for those injuries caused by Costco’s own “default, negligence or tortious acts.”  Costco established it was not negligent, that it did not direct, control, or supervise the means and methods in which plaintiff performed his work, and that plaintiff’s injuries did not result from any default of its obligations under the lease.
 
 

Lazo v Ricci
December 11, 2019
Appellate Division, Second Department

 
Defendants purchased real estate and began construction of a new single-family home on the property.  Defendant A & J assisted the defendants with managing the subcontractors working on the project.  A & J hired plaintiff’s employer, Long Island Gutters, to install gutters on the home.  While working at the premises, plaintiff allegedly was injured when he fell from a 32-foot ladder provided by his employer.  The trial court granted the Ricci defendants’ motion for summary judgment dismissing the complaint against them.
 
Labor Law § 240(1) (DRA)
The Second Department affirmed; holding defendants proffered evidence that they were owners of a one-family dwelling and that they did not direct or control the work being performed.  In support of their motion, they submitted plaintiff’s deposition testimony, in which he testified that he was employed by a subcontractor, who supervised his work and provided all materials for the job, including the subject ladder.  The Court held plaintiff’s deposition testimony further established that he did not speak with defendants at any time prior to his accident and that he received no instructions from the defendants regarding the work to be performed.  Consequently, defendants established their prima facie entitlement to judgment as a matter of law dismissing the Labor Law §§ 240(1) and 241(6) claims based on the single-family homeowner’s exemption.  The Court rejected plaintiff’s contention in opposition that the exemption is inapplicable because A & J’s work may have been performed on a voluntary basis.  The work that must be contracted for is the plaintiff’s work.  A homeowner, therefore, is not required to hire a general contractor to avoid personal liability under the statute.

PRACTICE POINT:  The real take-away here is that there does not need to be general contractor to be held in the case for the homeowner to exercise the exemption, where the owner does not supervise, direct, or control the means and methods of the injury producing work.

Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department also affirmed dismissal of the Labor Law § 200 and common-law negligence claims because defendants did not supervise or control plaintiff’s work and thus, they cannot be held liable as a matter of law.
 
 

Lopipero v MTA Long Is. Rail Rd.
December 11, 2019
Appellate Division, Second Department

 
Plaintiff, an employee of nonparty Ecology, was assisting in the removal of discarded railroad ties, which were stacked in a pile.  Plaintiff allegedly was injured when one of the ties fell from the pile and struck his right leg.  Defendant was the owner of the railroad ties and of the property where the accident occurred.  The trial court granted plaintiff’s summary judgment motion on the Labor Law §§ 240(1) and 241(6) claims.
 
Labor Law § 240(1) (DRA)
The Second Department reversed; finding plaintiff’s submissions failed to eliminate triable issues of fact as to whether, at the time of his accident, he was engaged in an enumerated, protected activity under Labor Law § 240(1), or whether he was engaged in routine maintenance.  The Court also held plaintiff failed to establish, prima facie, that his work took place in the context of a larger project, which “encompassed activity protected under the statute.”  See Fitzpatrick v State of New York, 25 A.D.3d 755, 757 (2d Dep’t 2006).
 
PRACTICE POINT:  While we all should know by now that routine maintenance, such as changing light bulbs, is not a covered activity, activities which otherwise would be considered routine maintenance become covered activities should they be part of a larger project.  The situation generally encountered is where, following or during a construction project, a worker is installing light bulbs.  The worker then falls and moves under §240(1).  The argument that it is routine maintenance fails in that case, as the task, replacing light bulbs, was a part of a larger construction project.
 
Labor Law § 241(6) (MAS)
The Second Department held, because plaintiff failed to meet his prima facie burden, the trial court also should have denied his summary judgment motion under Labor Law § 241(6), regardless of the sufficiency of defendant’s opposition papers.

 

Pchelka v Southcroft, LLC
December 11, 2019
Appellate Division, Second Department


Plaintiff, a plumber’s assistant, was allegedly injured while working for nonparty Donato in an apartment building undergoing conversion into condominium units.  Donato was a plumbing subcontractor on the project.  As part of the subcontract, Donato was required to complete the “rough” and “finish” plumbing work on various floors, including the 15th floor.  Plaintiff testified, after he arrived at the job site, his foreman instructed him to change a drain pipe that was going to be connected to a bathroom sink in a unit on the 15th floor.  Working alone, plaintiff completed the replacement of the drain pipe within 15 minutes.  Although he was not instructed to do so, the plaintiff then inspected the hot- and cold-water lines.  Caps were screwed onto “nipples” at the ends of the hot- and cold-water lines.  Plaintiff grabbed the cap on the hot water line with his left hand to make sure that it was secure.  He testified, as soon as he grabbed the cap, it “exploded” off under strong water pressure, and his left hand was burned by hot water.

The trial court granted the summary judgment motions of defendants, 322 West 57th Street Condominium, 322 West 57th Owner, Rose Associates, Pinnacle Contractors of New York, and Pinnacle Interiors, for dismissal of the Labor Law § 200 and common law negligence claims.

Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed; finding defendants established their prima facie entitlement to judgment as a matter of law by demonstrating the accident was the result of the means and methods of plaintiff’s work, plaintiff’s work was directed and controlled by his employer, and defendants had no authority to exercise control over his work.  Further, contrary to plaintiff’s contentions, defendants established the accident did not arise from a dangerous or defective premise condition.  Plaintiff’s deposition testimony established the cap on the hot water line “exploded” off when he grabbed it with his left hand, and the deposition testimony of the general contractor’s site superintendent established that the plumbing subcontractor installed the caps on the hot- and cold-water lines.  Plaintiff acknowledged he was not directed to inspect the hot- and cold-water lines, his only job was to replace the drain pipe under the sink, and the job he was directed to perform did not require the water to be shut off.
 
PRACTICE POINT:  In opposition to the motion, plaintiff argued the accident was caused by a dangerous condition on the premises, rather than the means and methods of the work.  It is important, when moving for summary judgment on Labor Law § 200 and common-law negligence, that both bases for liability are addressed.
 
 

Nicola v United Veterans Mut. Hous. No. 2, Corp.
December 18, 2019
Appellate Division, Second Department

 
Plaintiff was an employee of defendant/third-party defendant, Senid. He allegedly was injured when he was struck in the face with a hammer drill, which he was using while drilling a hole for a gas line.  The alleged injury occurred in a boiler room, located in a building owned by the United Veterans defendants.  The United Veterans defendants hired Senid to convert the boilers from oil to gas.  According to plaintiff’s deposition testimony, he had been drilling a hole in a wall for about an hour, holding the hammer drill in one hand with his other hand on the trigger, when the drill suddenly spun and struck him.
 
The trial court denied defendants/third-party plaintiffs’ and defendant/third-party defendant’s motion for summary judgment dismissing the Labor Law § 241(6) claim based on alleged violations of Industrial Code regulations 23-1.5(c)(3), 3.3(c), and 9.2(a) and (b)(1).  The Court also denied, in effect, defendant/third-party defendant’s summary judgment motion seeking dismissal of the third-party complaint.
 
Labor Law § 241(6) (MAS)
The Second Department reversed the trial court and awarded summary judgment dismissing the Labor Law § 241(6) claims based on alleged violations of Industrial Code regulations 23-1.5(c)(3), 3.3(c), and 9.2(a) and (b)(1).  The Court held the United Veterans defendants demonstrated that they lacked notice of any defect or unsafe condition in the hammer drill under 23-1.5(c)(3); that 23-9.2(a) did not apply, as the hammer drill that injured plaintiff was not “heavy equipment or machinery;” and that 23-3.3(c) also was inapplicable, because plaintiff was not engaged in demolition work at the time he was injured, but rather was drilling a hole to install piping for gas boilers.
 
Indemnity Issues in Labor Law (SEP)
The Second Department held, based on its determination on the causes of action above, that branch of Senid’s motion for summary judgment dismissing the third-party complaint should have been granted.
 
 

Ortega v Roman Catholic Diocese of Brooklyn, N.Y.
December 18, 2019
Appellate Division, Second Department

 
While working as a concrete laborer at the defendants’ property in Queens, the plaintiff was injured when the front leg of a three-wheeled compressor gave way, causing a portion of the plaintiff’s right ring finger to become severed by the bent leg of the compressor.  At his deposition, the plaintiff testified that, approximately two months before the incident, a locking mechanism that served to stabilize the front leg and wheel of the compressor had broken.  The plaintiff also testified that, as a makeshift remedy, his boss replaced the broken component with an ordinary screwdriver.  The plaintiff testified that the accident occurred when the screwdriver popped out of the locking mechanism as he and two coworkers were attempting to push the compressor up a driveway.  The Supreme Court denied the plaintiff’s motion for summary judgment under Labor Law § 241(6).
 
Labor Law § 241(6) (MAS)
The Second Department held plaintiff demonstrated prima facie entitlement to judgment as a matter of law by showing that there were violations of certain relevant Industrial Code regulations, and that those violations were a proximate cause of his injuries.  Contrary to defendants’ contentions, the Court held plaintiff was not also required to demonstrate his freedom from comparative fault.  Thus, plaintiff should have granted summary judgment by the trial court.


 
Paul v Village of Quogue
December 18, 2019
Appellate Division, Second Department

 
Plaintiff, a technician employed by nonparty contractor CSC, allegedly was injured when he fell approximately 15 feet from a ladder, while performing work on a utility pole located on or near property in Quogue.  At the time of the accident, plaintiff was performing repair work and installing a wi-fi unit on the utility pole.  According to plaintiff, he had wrapped a metal wire attached to the utility pole around the ladder and then leaned the ladder against other wires attached to the pole.  Plaintiff alleged that, as he climbed down the ladder, the metal wire broke and caused him to fall from the ladder.  Although the property on which the utility pole is located is jointly owned by the defendants Town of Southampton and the Village of Quogue, the Town does not own the utility pole or the wires in question.  The trial court granted defendant Town of Southampton’s motion for summary judgment dismissing the complaint against it.
 
Labor Law § 240(1) (DRA) 
The Second Department affirmed; finding the accident arose from the manner in which the work was performed.  The Town established its prima facie entitlement to judgment as a matter of law through evidence demonstrating it did not contract to have the work performed, it did not have the authority to supervise or control the work being done, and it did not have a sufficient nexus to the plaintiff, since it did not have a property interest in the utility pole and wire on which the plaintiff was working at the time of the accident (see Scaparo v Village of Ilion, 13 N.Y.3d 864, 866 [2009]).  In opposition, the plaintiff failed to raise a triable issue of fact.

Furthermore, plaintiff’s contention that the motion should have been denied as premature was found to be without merit.  “A party contending that a motion for summary judgment is premature is required to demonstrate that additional discovery might lead to relevant evidence or that the facts essential to oppose the motion are exclusively within the knowledge and control of the movant.”  Haidhaqi v Metropolitan Transp. Auth., 153 A.D.3d 1328, 1329 (2d Dep’t 2017). The mere hope or speculation that evidence to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny a motion for summary judgment.  Here, the plaintiff failed to satisfy his burden of demonstrating that the Town’s motion was premature.

PRACTICE POINT:  This is all well and good, except that the Town, even without any nexus to the work being performed, would have been held in, if it had an ownership interest in the pole and not just the land underneath.  This is the aspect of the Labor Law that drives property owners crazy; they may have no knowledge the work is even being done, but still be held liable under § 240(1).
 
Labor Law § 200 and Common-Law Negligence (ESB)
As with the Labor Law § 240(1) cause of action, the Second Department affirmed dismissal of the plaintiff’s claims against the Town pursuant to Labor Law § 200.  In a “means and methods” case, where the accident arose out of the manner in which the work was performed, a defendant must have authority to supervise or control the methods or materials of the injured plaintiff’s work.  Because the Town did not have the authority to supervise or control the work being done, the Labor Law § 200 cause of action was properly dismissed.
 
 

Romero v Bangiyeb
December 18, 2019
Appellate Division, Second Department

 
Plaintiff allegedly was injured while installing exterior molding on defendant’s building.  Plaintiff was climbing through an attic window onto the wet roof to secure molding, when his foot slipped on the roof and he fell to the ground.  Plaintiff was an employee of a contractor hired by defendant to perform the work.  The trial court granted defendant’s motion for summary judgment dismissing the Labor Law § 240(1) claim.  In a second order, the court denied, as academic, plaintiff’s motion for summary judgment on the issue of liability on that claim.
 
Labor Law § 240(1) (DRA)
The Second Department affirmed; holding defendant established, prima facie that he and his family intended to reside at the premises after the renovations were completed and, thus, that the single-family homeowners’ exemption applied.  In opposition, the plaintiff failed to raise a triable issue of fact, because he did not submit evidence in support of his claim that the premises had only commercial use and was never intended for residential use by the defendant.  Even assuming that defendant’s criminal forfeiture of the premises established the premises had a commercial use, the Court held the exemption would still apply, because defendant demonstrated that the work was related to the residential use of the premises.  In addition, the Court noted, it was undisputed that defendant did not direct or control plaintiff’s work.
 
PRACTICE POINT:  The Court continued the established principle that, where the work is on a multi-purpose structure, it is the intent of the work, commercial or residential, that controls the applicability of the homeowner’s exemption.
 
 

Gonzalez v Romero
December 20, 2019
Appellate Division, Fourth Department

 
Defendants hired plaintiff to stain the exterior of a barn in order to prepare it for use as an event center for weddings and other celebrations. On his first day of work, plaintiff set a 20-foot ladder on a scaffold, so he could power-wash the barn before staining it. The scaffolding allegedly collapsed beneath him, and he fell. The trial court denied plaintiff’s motion for partial summary judgment and granted, in part, defendant’s cross-motion for summary judgment on the Labor Law §§ 240(1) and 241(6) claims.
 
Labor Law § 240(1) (DRA)
The Fourth Department unanimously reversed; holding plaintiff met his initial burden by establishing that his injury was proximately caused by the failure of a safety device to afford him proper protection from an elevation-related risk.  Defendants failed to raise an issue of fact whether the exemption from liability for owners of a one- or two-family dwelling applied.  Although defendants submitted the affidavits of defendants, Josue Romero and James Newell, who stated that they reside on the property and that they use the barn partly for personal storage, the work that plaintiff was hired to perform related directly to the preparation of the structure for commercial use, rather than any incidental residential use.  The fact the commercial use had not yet begun was not dispositive because “the use and purpose test must be employed on the basis of the owners’ intentions at the time of the injury underlying the action.”  see Davis v Maloney, 49 A.D.3d 385, 386 (1st Dep’t 2008).
 
PRACTICE POINT:  It can’t be surprising to anyone, where the work is admittedly being done to prepare a structure for commercial use, that the homeowner’s exemption does not apply.  As in the case above, it is the reason the work is being done – the intent of the owner – that controls.  When it is commercial, the Labor Law applies, when it is residential, the exemption applies.

 

12 NYCRR § 23-1.21 – Protection in Construction and Excavation Operations; Ladders and ladderways; General requirements for ladders; Maintenance and replacement.

Regulation § 1.21(b)(3)(i), which forbids use of ladders with broken parts or members, is sufficiently specific to support a Labor Law § 241(6) cause of action.

Przyborowski v A & M Cook, LLC., 120 A.D.3d 651, 922 N.Y.S.2d 56 (2d Dep’t 2014).
 

Przyborowski held reg sufficiently specific to support a § 241(6) cause of action, and △ worksite owner failed to establish that its violation of the reg was not a proximate cause of π’s fall from a ladder.

 

 

Labor Law Pointers
 
Editor
David R. Adams

Associate Editor
Steven E. Peiper

Associate Editor
Marc A. Schulz

Associate Editor
Eric D. Andrew

Associate Editor
Eric S. Bernhardt

Associate Editor
Brian F. Mark
 


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