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Labor Law Pointers - Volume IX, No. 3

 
 

Labor Law Pointers

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

Volume IX, No. 3
Wednesday, February 5, 2020

 

From the Editor:
 
Do you have a situation?  We love situations.  We are always here to help with your situation.
 
I generally have photos that allow us to teach a specific point, or points, of the Labor Law to our readers.  Here, I am breaking away from that to show a hi-vis shirt being offered by someone other than a plaintiff’s firm looking to get business.  Our good friends, at Oryx, are offering a shirt intended to promote safety and remind construction workers to "click in" when working at heights.  The tag line, “Gravity is a Law, Not a Suggestion” is perfect as is the depiction of a worker being saved by his harness and lanyard.  Tom, Jeff, and Joe, this is awesome.
 

 
As an aside, you will notice that the shirt promotes OSHA’s Fall Protection Safety Week.  In an effort to better defend Labor Law cases, every member of our Labor Law and Risk Transfer team have completed (or in the case of our recent additions, Tim and Brenna, are currently taking)  the OSHA 10-hour Construction Safety and Health course to better understand the training received by construction workers and how to properly avoid the risks present on construction sites.  I have been certified for years and think it is of great benefit while analyzing a case and while deposing a plaintiff.  This is just one example of the level of commitment we have to doing everything we can to defend your Labor Law case.
 
For our second photo offering, we have a worker hired by the owner to replace the light bulbs that have burned out on the parking lot poles.  The worker took one look at the set up provided to him by the owner to replace the bulbs and said he did not want to use it to do the job.  The owner then called the worker's boss, who ironically called the worker on his cell two minutes later and told him to get up there and do the work or he was going to lose his job.  Not surprisingly, the plaintiff is injured when the stack of pallets on the forklift tips over and he falls some 30 feet to the ground.  Labor Law § 240(1) case?
 
 
 
We will start with our traditional analysis: the plaintiff is an appropriate plaintiff as he is a person so -employed at the time of his injury, and thus, entitled to the protections afforded by the statute.  The defendant is the property owner and thus an appropriate defendant.  The plaintiff fell from a height and is injured by the effects of gravity, so the task being undertaken is covered.  The project, replacing burned out light bulbs, may seem to be a repair but it has been ruled by the court to be maintenance and thus, not a covered project.  While the property owner has evaded liability for the § 240(1) claim, he is going to have some explaining to do on the negligence claim.
 
Here we have two plaintiffs certain that an excavator could never fall into the unbraced trench they were working in for a plumbing company while installing water pipes for the property owner and thus decided that it was safe to work under it.  While they were correct that the entire excavator would not fit into the trench, they miscalculated, and the sides of the trench caved in on them causing them to be severely injured.  § 240(1) case?
 

 
While the plaintiffs will have a great § 241(6) case, the sides of a trench caving in on a plaintiff do not constitute a falling object or objects in need of being secured under § 240(1) and the plaintiff will not have a valid § 240(1) claim, at least in the Fourth and Third Departments where there are cases on point.  The distinction, it appears, is that had there been shoring on the trench sides that failed, then the safety device, the shoring, would have failed and a § 240(1) claim would be viable.  Where there is no specific safety device which failed, then the earth is not an object in need of securing and thus not a § 240(1) claim.  It seems quite illogical, but then, this is the Labor Law we are talking about.
 
Here we have a couple of painters hired by my building to paint the bridge to the mall food court next door, where we enjoy our gourmet lunch.  As the soon-to-become plaintiff is painting the wall above the stairs and falls, does he have a § 240(1) case?  What if he was putting up wallpaper instead of painting, same result?


 
As the plaintiff is painting, which is a protected activity, and painting above stairs, without any type of safety device, this is a § 240(1) case all day.  Remember that the painting need not be a part of a larger construction project as it is a specifically defined protected activity.  As to the wallpapering question; that would not be a covered event.  The two plaintiffs were twin brothers, on identical ladders working on identical walls in the same room, wearing the exact same clothes, where one was painting and the other putting up wallpaper, and both fell at exactly the same second when the ladders both shifted, only the painter would have a § 240(1) case.
 
This final photo was taken as I walked to my car yesterday.  If you look at the pic going diagonally between scaffolds, what you can’t tell from the photo is that it was rocking back and forth in the wind. It gave me the willies just looking at it. 



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.

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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.


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.

 

Saavedra v 111 John Realty Corp.

January 7, 2020
Appellate Division, First Department

 
Plaintiff was injured when the scaffold on which he was working allegedly collapsed. The trial court granted plaintiff’s summary judgment motion on his Labor Law § 240(1) claim, denied defendants/third-party plaintiffs 111 John and Braun’s summary judgment motion for contractual indemnification against third-party defendant DMGU, and denied DMGU’s summary judgment motion seeking dismissal of the third-party complaint.
 
Labor Law § 240(1) (DRA)
The First Department unanimously affirmed; finding that plaintiff established a prima facie Labor Law § 240(1) violation with undisputed evidence that his accident occurred when the scaffold on which he was working collapsed. In opposition, the Court held defendants failed to raise an issue of fact as to whether plaintiff was the sole proximate cause of his accident, because, even if plaintiff was instructed not to use scaffolds belonging to other trades working at the site of his accident, an instruction to avoid an unsafe practice is not a sufficient substitute for providing a worker with an appropriate safety device to allow him to complete his work safely.
 
PRACTICE POINT: The basic message here is that there is an affirmative duty on the defendants to provide an appropriate safety device to the plaintiff to perform his work; it is simply not enough to tell him how not to do it.
 
Indemnity Issues in Labor Law (SEP)
The Court affirmed denial of summary judgment on the third-party claim; finding ambiguity in the agreement between Braun and DMGU because both parties are referred to as the “Contractor” at different places in the agreement.
 
 

Krzyzanowski v City of New York
January 14, 2020
Appellate Division, First Department

 
Plaintiff was employed as a painter for a nonparty subcontractor on a renovation project owned by the City. STV was the construction manager. Plaintiff allegedly was injured when, as he was walking down a hallway between rooms that he was assigned to paint, he tripped on loose, overlapping and unsecured wooden boards laying on the floor. Plaintiff testified that as a coworker stepped on a board, it sprang up, and plaintiff caught his foot beneath it, causing him to trip.
 
The trial court denied defendants’ summary judgment motion dismissing the Labor Law § 241(6) claim predicated upon an alleged violation of Industrial Code (12 NYCRR) regulation § 23-1.7(e)(1) and granted plaintiff's motion for partial summary judgment on that claim.
 
Labor Law § 241(6) (MAS)
Plaintiff alleged the boards were a tripping hazard under regulation 1.7(e)(1) because defendants failed to provide him with a passageway free of obstructions. Defendants argued the “integral-to-the-work defense” i.e. that because the boards were Masonite, not scattered materials or debris, and because they were purposefully set on the floor each day, there was no liability.
 
The First Department reversed and denied summary judgment to Plaintiff; finding the defense equally applies to regulation 1.7(e)(1) as well as (e)(2), which the trial court rejected. However, the Court further held that defendants were also not entitled to summary judgment as the deposition of plaintiff and STV’s project manager only established that the boards were removed and replaced each day, but not why they were placed or what condition they were in. Thus, defendants failed to establish as a matter of law that the boards were a protective floor covering integral to the work being performed at the time of plaintiff’s incident.
 
 

Mooney v BP/CG Ctr. II, LLC
January 14, 2020
Appellate Division, First Department

 
Plaintiff allegedly suffered an injury when he knelt on a screw lying on the floor of the construction site where he was installing cabinets. The trial court dismissed the complaint.
 
Labor Law § 241(6) (MAS)
The First Department affirmed; finding the single screw upon which plaintiff knelt did not constitute an “accumulation of dirt and debris” under regulation 1.7(e)(1); nor somehow could be construed broadly as a “sharp projection” under 1.7(e)(2) because it did not project from the floor, and was not sharp in the sense of being “clearly defined or distinct”; citing Lenard v 1251 Ams. Assoc., 241 A.D.2d 391, 393-94 (1st Dept 1997).
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed dismissal of the Labor Law § 200 and common-law negligence claims; finding the evidence established defendants neither created or had notice of the condition of the floor nor exercised control over the manner and means of plaintiff’s work. Further, by his own testimony, plaintiff admitted the work area was clean at the time of the incident and he looked but had not seen the screw before kneeling on it.
 


Gutierrez v 610 Lexington Prop., LLC
January 16, 2020
Appellate Division, First Department

 
Plaintiff allegedly was injured when, while being passed a heavy concrete form from workers on a scaffold above, he was scratched by a nail embedded in the form and was unable to control the form's descent and fell backwards. The trial court denied defendants’ summary judgment motion to dismiss plaintiff's Labor Law § 240(1) claim and granted plaintiff's motion for partial summary judgment on the issue of liability on that claim.
 
Labor Law § 240(1) (DRA)
The First Department unanimously affirmed; finding that summary judgment was properly granted to plaintiff because the fact that a nail was embedded in the form and scratched plaintiff immediately prior to his losing control of the form does not take this matter out of the protections of section 240(1). Even if, as claimed by defendants, plaintiff was receiving a lighter sheet of plywood form cover, rather than the heavier rubber covered form, it is irrelevant because under either version of the accident, liability lies.  Nor was it plaintiff's responsible to seek additional help after his partner was called away to perform another task.
 
PRACTICE POINT:  The cause of the injury was, to quote Runner, the failure of the defendant “to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person” causing injury to the plaintiff.  Thus, it is a § 240(1) case.
 
 

Higgins v TST 375 Hudson, L.L.C.
January 16, 2020
Appellate Division, First Department

 
Plaintiff was injured in a fall from a ladder while installing duct work on a building renovation project after either he allegedly received a shock, or an arc fault occurred when he met a live electrical junction box. The trial court granted plaintiff's motion for summary judgment on his Labor Law § 240(1) claim against Hudson, EMCOR, and Americon, denied without consideration defendant ADCO’s motion for summary judgment dismissing the Labor Law § 241(6) claim against it, and implicitly denied Hudson and EMCOR summary judgment dismissing all cross-claims and counterclaims against them for common-law indemnification and contribution. 
 
Upon reargument, the trial court granted plaintiff summary judgment on his Labor Law § 241(6) claim against ADCO, granted Americon's motion for conditional summary judgment for contractual indemnification against ADCO, granted the same for EMCOR on its contractual indemnity claims against OMC and unconditionally on its contractual indemnity claim against ADCO, and granted Americon conditional summary judgment on its contractual indemnity claim against OMC.
 
Labor Law § 240(1) (DRA)
The First Department unanimously reversed; finding an issue of fact as to whether the ladder, which was properly set up, provided plaintiff with proper protection since he had no problem with the ladder prior to the electric shock and questions of fact exist whether a scaffold could have prevented this accident.
 
PRACTICE POINT:  Here we learn again the importance of an expert in a case where the issue is whether the provided safety device was appropriate. When the ladder is appropriately set up, and the cause of the fall is the shock and not the ladder, it is essential to have an expert opinion to support that portion of the defense.  If the plaintiff had the only expert, and that expert opined that the ladder was not an appropriate safety device, and that only a scaffold would be appropriate, it would likely have been summary judgment for the plaintiff.
 
Labor Law § 241(6) (MAS)
The First Department granted summary judgment to plaintiff under regulation 23 - 1.13(b)(2), (3) and (4) against the electrical contractor, ADCO, who failed to warn of and de-energize or “safe off” the junction box, so that a worker would not come into contact with it. The Court found that because ADCO had been delegated authority to control the electrical work that gave rise to plaintiff’s injury, it was a statutory agent subject to liability under the statute.
 
Although ADCO contends the junction box was outside the scope of its work at the time of the accident, the Court found no support in the record as it conflicted with the deposition testimony of ADCO’s foreman that, upon discovering the live junction box the day before the accident, ADCO “secured it up into the ceiling so it wasn’t a hazard to anybody working in the area.”
 
Nor was there any comparative negligence because the record established that, even if plaintiff moved the junction box, all power except for temporary lights was to be de-energized in his work area, and the presence of temporary lights indicated the area had otherwise been de-energized.
 
Indemnity Issues in Labor Law (SEP)
Keep this one handy.  The court explores a number of cross-claims for indemnity, and in so doing hits all of the usual suspects in third-party litigation. 
 
The first claim addressed is Americon’s claims for contractual indemnification from EMCOR.  The Appellate Division notes that by employing “fullest extent permitted by law” language, Americon was signifying it only sought “indemnity” for losses which did not arise from its own negligence.  As such, there is no violation of the GOL § 5-322.1.  However, because the issue of Americon’s potential negligence remained an issue of fact, the Court noted that Americon was only entitled to a Conditional (ie., to the extent of its vicarious liability) Order of Indemnification.
 
The second issue addressed are the claims for common law indemnity against EMCOR and Hudson.  As both parties sufficiently established that they were free of negligence, they could not be liable under a theory of common law indemnity.  The Court also notes that their respective absolutions from active negligence also protected EMCOR and Hudson from contractual indemnity claims asserted against them.  We’re not sure why this matters as a party can owe indemnity even if it is free of negligence (see the Americon motion against EMCOR).  We trust, however, this simply means that the relevant contract conditions indemnification on a party’s active negligence. 
 
With regard to EMCOR’s motion for contractual indemnity, the Court notes that EMCOR (who, recall, was held to be free from negligence) is entitled to recovery against OMC.  In deciding, the Court also notes that the contractual indemnity award is subject to the protections of the anti-subrogation rule.  This means that to the extent a policy of insurance covering both EMCOR and OMC applies to the loss, EMCOR’s indemnity award will not trigger until the exhaustion of the coverage. 
 
EMCOR’s application for contractual indemnification against ADCO failed where EMCOR was not a party to the contract. 
 
Finally, Americon’s claims for contractual indemnification from OMC also fails.  Here, Americon appears to have argued that the indemnity obligations found within its prime contract with EMCOR should have been incorporated into the EMCOR/OMC contract.  However, only the “general scope, quality, character and manner” of the requested work was incorporated. Where, as here, there was no specific incorporation of the American/EMCOR indemnity clause, it cannot be read to have been included in the subcontract.
 
 

Rosario v Port Auth. of N.Y. & N.J.
January 16, 2020
Appellate Division, First Department

 
Plaintiff allegedly was injured while working in a building owned by the Port Authority, a bistate entity created by a federally approved compact. The trial court denied the motion of the Port Authority to dismiss the Labor Law §§ 240(1) and 241(6) claims.
 
Labor Law § 240(1) (DRA)
The First Department unanimously affirmed; finding the trial court properly rejected the Port Authority's arguments that as a bistate entity created by a federally approved compact, it cannot be held liable under Labor Law §§ 240(1) or 241(6). The Compact Clause of the United States Constitution is not implicated by the application of such New York workplace safety statutes to the Port Authority work site located in New York, which does not encroach on federal supremacy
 
PRACTICE POINT:   It has long been held that when the accident occurs in New York, on Port Authority land that it qualifies as a Labor Law case.  These cases pop up every few years, and have been decided the same way.
 
 

Sotarriba v 346 W. 17th St. LLC
January 28, 2020
Appellate Division, First Department

 
Plaintiff, an electrical worker on a construction site, allegedly sustained serious injuries, including a TBI, when he fell through an unprotected stairwell opening from the third floor to the second floor of the building in which he was working. The trial court granted plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim, granted defendants summary judgment dismissing the Labor Law §§ 241(6), 200, and common-law negligence claims, granted third-party defendant Sigma’s summary judgment motion dismissing the third-party complaint, and denied Technetek summary judgment dismissing the second third-party complaint and all cross claims.
 
Labor Law § 240(1) (DRA)
The First Department affirmed; finding the trial court correctly granted plaintiff summary judgment on the Labor Law § 240(1) claim. Regardless of whether plaintiff fell off a ladder, as he claims, or lost his balance while climbing over a four-foot-high barricade blocking access to the stairwell, as defendants contend, the Court held he was not provided with adequate protection to prevent his fall into the unguarded stairwell opening. The Court rejected the sole proximate cause defense because, even if plaintiff was negligent for climbing over the barricade, his negligence would only raise an issue as to comparative negligence, which is not considered under § 240(1).
 
PRACTICE POINT:  Where there are two version of the accident, and both would result in summary judgment for one party or the other, then summary judgment is appropriate and there is not a question of fact which precludes the award of summary judgment.  Here, clearly if the plaintiff fell from a ladder which shifted, he would be awarded summary judgment.  In the alternative, if the plaintiff fell through an unguarded stairwell and there were not appropriate safety devices to prevent that fall, he would also get a summary judgment.  Even if the barricade was considered a safety device, the failure to guard the stairwell is a proximate cause of the fall and resulting injury, thus the plaintiff’s actions could not be the SOLE proximate cause.
 
Labor Law § 241(6) (MAS)
The First Department reversed, as the claim predicated on Industrial Code regulation 23 - 1.7(b)(1) should not have been dismissed. The Court found the stairwell opening constituted as “hazardous opening” within the meaning of that regulation. However, the Court held 1.7(f) inapplicable as the stairway was not being used as a “means of access” to the work areas, 23 and 23 - 1.22(c) also did not apply as the stairwell was not a platform “used to transport vehicular and/or pedestrian traffic/”
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department reversed; finding a question of fact regarding whether McGowan is liable pursuant to Labor Law § 200 and common-law negligence. The Court held plaintiff’s accident was caused by the lack of proper fall protection (i.e., means and methods of the work), so McGowan could be liable if it exercised supervisory control over that work. Further, while the record demonstrated McGowan had no authority to exercise control over plaintiff’s use of the ladder, there was question of fact whether McGowan had authority over the proper barricading of the stairwell.  It noted, although Technetek was charged with installing and maintaining the barricades, that did not necessarily mean McGowan lacked authority to control that installation. 
 
PRACTICE POINT:  It is interesting the Court hung its hat on whether McGowan “had” the authority to control the barricade installation, in light of its earlier statement of the law that liability under § 200 depends on whether it “exercised” control.  While the record demonstrates McGowan likely directed that barricades be erected, that does not necessarily equate to supervisory control over the means and methods of erecting them.
 
Indemnity Issues in Labor Law (SEP)
As an initial matter, the Appellate Division made quick work dismissing the claims for common law indemnification/contribution against Sigma.  Here, there was no merit to the contention that plaintiff sustained a “grave injury” under Section 11 of the Workers’ Compensation Law.  As such, Sigma, as employer, was categorically exempt from common law exposure.
 
With regard to claims for common law indemnification/contribution against Technetek, the Court aptly noted that, as a third-party contractor, it did not owe a duty to plaintiff.  As such, it was not subject to any potential tort liability.  In reaching this conclusion, the Court noted that there was no evidence that Technetek created or exacerbated a dangerous condition. Further, there was no evidence that Technetek displaced, entirely, the duty to maintain the safety of the worksite. 
 


Cortes v Madison Sq. Garden Co.
January 30, 2020
Appellate Division, First Department

 
Plaintiff fell when the ladder on which he was standing allegedly slipped out from under him.  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 affirmed; finding that plaintiff established prima facie entitlement to partial summary judgment on his Labor Law § 240(1) claim, through testimony that he fell when a loose piece of Masonite on which the ladder was placed “kicked out” from under him. In opposition, however, the Court found that defendants raised an issue of fact as to whether plaintiff's negligence was the sole proximate cause of the accident.

PRACTICE POINT:  We had to pull the underlying case to get the facts as to what the defendant was claiming was the sole proximate cause defense.  In the underlying case there is testimony that the plaintiff’s fall was based on his leaning away from the ladder and not from the ladder slipping on the Masonite.  Where one version of the accident supports §240(1) liability and one does not, it is a question of fact for the jury to decide, and not a question of law for the court.
 
 

Rodriguez v Antillana & Metro Supermarket Corp.
January 30, 2020
Appellate Division, First Department
 

Plaintiff allegedly was injured while installing a refrigeration condenser unit at property owned by Boss and leased by Antillana. Plaintiff worked at the premises during the build-out, installing three refrigeration system condensers weighing 3,000 pounds, which had to be moved with a forklift. Three weeks after the store opened, plaintiff was asked to install an additional condenser which weighed about 200 pounds. The President of Antillana acknowledged there had been a renovation project underway at the premises before plaintiff's accident.

The trial court denied plaintiff's summary judgment motion on his Labor Law § 241(6) claim, granted Boss’s summary judgment motion to dismiss the complaint and any cross claims as against it, and granted Antillana summary judgment dismissing the Labor Law § 241(6) claim.

Labor Law § 241(6) (MAS)
The First Department found an issue of fact whether the subsequent installation of the condenser constituted an “alteration” of the premises, which falls within the ambit of “construction” work under Labor Law § 241(6). The Court also found triable issues of material fact as to whether Antillana violated regulations 23 - 1.25(d), (e)(1), (e)(3), and (f), in support of his § 241(6) claim.
 
 

Torres v City of New York
January 8, 2020
Appellate Division, Second Department

 
Plaintiff was injured while working as a member of an excavation crew on the installation of sewer lines along a street in Staten Island. The City defendants hired plaintiff's employer to perform the work on the project. Plaintiff, who was inside a steel trench box located 10 feet below grade level, was signaling to the operator of an excavator when his right hand was crushed against the inside of the steel trench box by the bucket of the excavator.
 
At trial, the jury sent a note to the trial court asking for a written copy of Labor Law § 241(6), which was denied but instead repeated its charge. The jury returned a verdict finding the City defendants violated Industrial Code regulation 4.2(k) but that the violation was not a substantial factor in causing the accident. Although the instructions on the jury verdict sheet directed the jury to stop if it found the violation was not a substantial factor, the jury further found plaintiff was negligent and apportioned 75% fault on him and 25% to the City.
 
After the trial court instructed the jurors to reconsider its verdict, the jury returned a second verdict which was identical to the first except they did not answer the questions as to plaintiff’s negligence and appointment of fault. The trial court then denied plaintiff’s motion to set aside the verdict and subsequently dismissed the Labor Law § 241(6) claim.
 
Labor Law § 241(6) (MAS)
The Second Department reversed and held that since the jury’s initial verdict was internally inconsistent, the trial court properly directed the jury to reconsider its verdict. However, the Court found the record supports the conclusion that the second verdict, although internally consistent, was unreliable and the product of substantial juror confusion. The trial court should have reinstructed the jury on the concept of comparative fault and the meaning of “substantial factor.”
 
The Court further agreed with plaintiff that the trial court should not have instructed the jury that it was the City’s contention that regulation 23 - 4.2(k) “does not apply in this case because plaintiff, a member of the excavator crew as defined under 23 - 9.5(c) was authorized to be within the range of the moving excavating bucket.” The Court previously rejected that contention, stating “a person authorized pursuant to 23 - 9.5 to … be within the range of an excavator’s bucket may, contrary to the City’s contention, still claim the protections provided under 23 - 4.2(k).
 
 

Campanello v. Cinquemani
January 15, 2020
Appellate Division, Second Department

 
Plaintiff allegedly was injured while removing trees from the backyard of defendant’s property. The property was improved by a single-family dwelling in which defendant resided with his family. At the time of the accident, plaintiff, who had been hired by defendant’s cousin, whom he considered his boss, was using defendant’s chainsaw to cut branches from a downed tree while another worker assisted him by pulling away the branches after they were cut. Defendant’s cousin was operating an excavator to move another downed tree that was situated on top of the tree the plaintiff was cutting. According to plaintiff, as he was using the chainsaw to cut branches from the downed tree, the excavator moved the top tree, causing a branch underneath it to snap back and strike plaintiff in the forehead. The trial court granted defendant’s motion for summary judgment.
 
Labor Law § 240(1) (DRA)
The Second Department affirmed as Labor Law §§ 240(1) and 241(6) provide an exemption from liability for “owners of one and two-family dwellings who contract for but do not direct or control the work.” The Court found the evidence submitted by defendant, including plaintiff's deposition testimony, established, prima facie, the work was being performed at defendant’s single-family residence, and that defendant did not direct or control plaintiff's work. Defendant’s activities in visiting the work site, providing plans for the area to be worked on, making general decisions, and reviewing the progress of the work were “no more extensive than would be expected of the ordinary homeowner” (Nai Ren Jiang v Shane Yeh) In opposition to defendant’s prima facie showing, the Court held plaintiff failed to raise a triable issue of fact. 
 
PRACTICE POINT:  As a homeowner myself, my advice is to stay far away when any job is being done on the property, to eliminate any chance that you could be considered to be supervising, directing, or controlling the means or manner of the work.  Came home one day to a worker on a ladder replacing a spring on our garage door.  Packed up the kids and went out to dinner until the job was done.  Just not worth the risk.  Now, my friend Andy loaned his ladder to a contractor who set it up on wet plywood, and he should know better, given his extensive knowledge of the Labor Law. 
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed dismissal of the Labor Law § 200 and common-law negligence claims. As to a dangerous condition, the Court held defendant established that he did not create or have actual or constructive notice of any dangerous condition involving the tree branch; nor did plaintiff allege that the defendant's chainsaw was dangerous or defective. Further, defendant also established that he did not have authority to supervise or control the performance of the work.
 
 

Babcock v. Orange & Rockland Utils., Inc.
January 22, 2020
Appellate Division, Second Department

 
Plaintiff allegedly was injured when he was struck by a motor vehicle while engaged in road work replacing gas lines to residences. The road where the accident occurred was owned by the Town of Clarkstown. The trial court granted the Town summary judgment dismissing the complaint.
 
Labor Law § 241(6) (MAS)
With respect to plaintiff’s claim predicated on a violation of regulation 23 - 1.29(a), the Second Department held the Town established, prima facie, that at the time of the accident, it complied with the requirement under the regulation that traffic “shall be controlled by designated persons.”
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed dismissal of the causes of action for common-law negligence and violation of Labor Law § 200; finding the Town demonstrated that it did not have the authority to supervise or control the work at issue. Moreover, the actions of the driver of the vehicle which struck the injured plaintiff were a superseding cause of the occurrence. 
 
 

Chapa v Bayles Props., Inc.
January 22, 2020
Appellate Division, Second Department

 
Plaintiff, a painter employed by nonparty Super Plaster, allegedly was injured when the extension ladder on which he was standing slid and fell, causing his fall. The trial court granted plaintiff summary judgment on his Labor Law § 240(1) claim against Bayles Properties.
 
Labor Law § 240(1) (DRA)
The Second Department affirmed; finding that plaintiff established Bayles’s liability through his deposition testimony, which demonstrated that he was provided with a ladder that lacked rubber feet, and that the ladder, which was leaning against a wall, slid away from the wall, causing him to fall to the ground. In opposition, the Bayles failed to raise a triable issue of fact as to whether the plaintiff's conduct was the sole proximate cause of the accident
 
PRACTICE POINT:   The lack of rubber feet is not the critical issue here; it is the movement of the ladder causing the fall and injury.  When the ladder moves and the plaintiff falls because of the movement, it is going to be a §240(1) case virtually every time.
 
 

Smith v City of New York
January 22, 2020
Appellate Division, Second Department

 
Plaintiff, a journeyman plumber, was working on the construction of a waste transfer station when he fell from a ladder and onto the deck below. As a result of the fall, plaintiff allegedly sustained a herniated cervical disc, as well as other injuries to his lower back and the cervical region of his spine. The trial court granted plaintiff’s unopposed summary judgment motion on his Labor Law § 240(1) claim. After the trial, the jury awarded past and future damages for pain and suffering, lost earnings, and medical expenses.
 
The trial court denied plaintiff's motion to set aside the verdict as contrary to the weight of the evidence but reduced the award for future lost earnings pursuant to CPLR 4545(a). Subsequently, the trial court entered a judgment in favor of plaintiff and against defendant for a total of $1,496,449.80. Plaintiff appealed, arguing that the award for pain and suffering was inadequate.
 
Labor Law § 240(1) (DRA) 
The Second Department held that although the amount of damages to be awarded for personal injuries is primarily a question for the jury, a jury’s award may be set aside if it deviates materially from what would be reasonable compensation (see CPLR 5501[c]). Contrary to plaintiff’s contention, given the conflicting expert opinions and the evidence regarding plaintiff’s prior injuries and physical condition, it could not be said that the jury’s award for pain and suffering deviated materially from what would be reasonable compensation under CPLR 5501(c).

Plaintiff’s claim that the damages verdict was inconsistent was held to be unpreserved for appellate review, as he failed to raise this issue before the jury was discharged.

PRACTICE POINT:  The adequacy of a verdict is a very difficult motion, or appeal, to win.  Where, as here, there is a basis in the testimony for the verdict, the courts, trial and appellate, tend to uphold the verdict.
 
 

Matute v Town of Hempstead
January 29, 2020
Appellate Division, Second Department

 
Plaintiff was employed as a carpenter by defendant JM Construction, a contractor hired by Anray, who was retained by the Town of Hempstead to construct houses on certain land located in Inwood. Plaintiff allegedly was injured while using an electrical circular saw to cut wood. The trial court  granted the Town’s motion for summary judgment dismissing the  Labor Law § 241(6) claim, and also granted Anray’s cross-motion for summary judgment seeking dismissal of that claim.
 
Labor Law § 241(6) (MAS)
The Second Department reversed insofar as the trial court granted the Town’s and Anray’s motion, finding that each failed to establish their prima facie entitlement to judgment as a matter of law. Triable issues of fact exist as to whether plaintiff was the sole proximate cause of his injury and therefore, the trial court should have denied the Town’s and Anray’s motions to dismiss this claim.
 
 

Philips v State of New York
January 31, 2020
Appellate Division, Fourth Department

 
Claimant allegedly was employed while working for a subcontractor on a demolition and abatement project at Attica. Two days later, he filed an incident report with DOCS and, 92 days after the incident, attempted to file a notice of intention to file a claim. Although the notice of intent was untimely, defendants proceeded with an EUO wherein plaintiff testified that he was attempting to remove a large, heavy industrial window from a windowsill several feet off the ground. He was unable to use the manlift that he previously used for other windows, because the platform of the manlift, at its lowest point, was higher than the bottom of the window he was removing. Other documents indicate that as he struggled to remove the window and lower it to the ground, it allegedly “fell” on him, causing injuries to his back. He thereafter filed a motion to file a late notice of claim regarding Labor Law § 240(1), which was denied by the Court of Claims.
 
Labor Law § 240(1) (DRA)
The Second Department, in considering the six factors for a late notice of claim, reversed and held several factors militate against granting the motion, including that law office failure was not an acceptable excuse and that claimant had a least “a partial alternate remedy through workers’ compensation.” However, the Court also found that Defendant had notice of the essential facts constituting the claim, had an opportunity to investigate the claim and was not prejudiced by the delay. The Court further found evidence to raise an issue of fact whether plaintiff was injured by the application of the force of gravity to the window as he was moving it between “a physically significant elevation differential” and whether he was provided with adequate protection from the preventable, gravity-related accident. He thus established his § 240(1) claim appears to have merit.
 
PRACTICE POINT:  The lack of any safety device to assist the plaintiff in removing the window was found to be a question of fact and thus supported the opportunity to bring that portion of the claim in spite of the late filing of the notice of claim.
 
Labor Law § 241(6) (MAS)
Although plaintiff’s proposed notice of claim sought to assert a § 241(6) claim, the Court held that he failed to address that claim on appeal. Thus, the Court deemed that claim abandoned.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Fourth Department affirmed denial of the motion to file a late claim as to Labor Law § 200; finding the record demonstrated no dispute that claimant’s accident did not arise from any condition of the property and also established that defendant exercised no supervisory control over the operation. Accordingly, the proposed cause of action lacked merit.

 

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)(ii), which forbids use of ladders with insecure joints between its members or parts, is sufficiently specific to support a Labor Law § 241(6) cause of action.


Croussett v Chen., 102 AD3d 448, 958 NYS2d 105 (1st Dept 2014);
 
Lopez v La Fonda Boricua, Inc., 136 AD3d 588, 26 NYS3d 267 (1st Dept 2016).
 
 

Croussett held reg, although sufficiently specific to support a § 241(6) claim, was inapplicable where π testified he opened and set up the ladder without incident, that the aluminum side supports were in working order and that the ladder had four rubber footings.
 
Lopez held reg did not apply since π testified that the ladder he used had locking braces, which he claimed he properly opened every time he set up the ladder.

 
 

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