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Labor Law Pointers - Volume IX, No. 5

 

 

From the Editor:   

This has been a good month for those of us who follow the trends in New York State labor law decisions as we had three decisions from the Court of Appeals in the same month, a bonanza for us.  First we have the New York Hospital Medical Center of Queens v Microtech Contracting Corp. where the court held that where an undocumented worker receives workers compensation from his employer the employer is entitled to the exclusive relief protection afforded by section 11 of the comp law.  Next the Fabrizi v 1095 Ave. of the Ams., L.L.C. case holds that where a falling object was caused to fall for reasons not associated with the failure of a safety device that it is not a violation of the labor law.  Finally in Morris v Pavarini Constr. Case the court held in a 241(6) case that where the injury causing item is not on that is specifically described in the regulation, here a form part rather than a completed form, that the regulation does not apply.

Thanks to all that have provided us with hours of discussion regarding the questions and issues you have emailed or called in to us.  We enjoy figuring out these fact patterns and our team approach to problem solving works well for us so please, keep those questions coming. 

Without further ado, here is the March edition for your reading pleasure.

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 or unsubscribe, please send an e-mail to [email protected] or call the Editor/Labor Law Team Leader David R. Adams directly at (716) 849-8916.

 

Rauls v DirecTV, Inc.
January 3, 2014
Appellate Division, Fourth Department

Plaintiff, a satellite dish installer, allegedly sustained injuries when he slipped and fell while stepping back onto a ladder from the roof of a residence after installing a satellite dish.  Plaintiff’s employer was hired by defendant DirecTV.  Plaintiff filed this Labor Law §§ 240(1), 241(6) and 200 action, and moved for partial summary judgment on his § 240(1) claim.  DirecTV cross-moved to dismiss the complaint, arguing it was not a “contractor” within the meaning of the Labor Law §§ 240(1) and 241(6).  The trial court denied plaintiff’s motion, and granted DirecTV’s motion.  Plaintiff appealed the decision.

Labor Law § 240(1) (DRA)

The Labor Law “holds owners and general contractors absolutely liable for any breach of the statute even if the job was performed by an independent contractor over which they exercised no supervision or control.”

Here, plaintiff submitted evidence establishing that DirecTV had the contractual authority to control the work at issue because the contract between DirecTV and plaintiff’s employer required the latter to comply with DirecTV’s policies and procedures, provide training in accordance with specifications provided by DirecTV, and utilize materials approved by DirecTV.  Further, the contract incorporated by reference a manual prepared by DirecTV that provided, among other things, detailed instructions for the installation of its satellite equipment, including instructions concerning safety issues.

The Fourth Department held that because DirecTV “had the authority to choose the party who did the work, and directly entered into a contract with that party, it had the authority to exercise control over the work, even if it did not actually do so.”  Therefore, plaintiff established as a matter of law that DirecTV is a “contractor” within the meaning of Labor Law §§ 240(1) and 241(6) because DirecTV “had the power to enforce safety standards and choose responsible subcontractors.”

However, the Fourth Department affirmed denial of summary judgment to plaintiff on his § 240(1) claim because he did not establish as a matter of law that “the absence of or defect in a safety device was a proximate cause of his injuries.”  Regardless, DirecTV raised an issue of fact whether the sole proximate cause of the accident was plaintiff’s decision to step onto a steep, slipper roof in violation of specific safety instructions.  Accordingly, the Fourth Department denied plaintiff’s and DirecTV’s respective motions for summary judgment.

PRACTICE POINT:  This case is one we have been waiting for as it examines the status of a satellite service provider who hires an installer to put up the disc for the customer.  The lynch pin here is the authority of the service provider to control the work done by the plaintiff.  While a question of fact was established in this case do not allow that to distract you from the main point of the case, that a service provider who retains another entity to install the dish is, in fact, a valid labor law defendant.

Pipia v Turner Const. Co.
February 4, 2014
Appellate Division, First Department

Plaintiff allegedly sustained injuries on a float stage in a workplace accident, which arose from repairs being made to a pier in a narrow waterway between Governor's Island and Brooklyn; navigable waters.  He commenced this common-law negligence and Labor Law §§ 240(1), 241(6) and 200 action against his employer, the City of New York (“City”), New York City Economic Dev. Corp. (“NYCEDC”), contractors, and the vessel owner, Trevcon Construction (“Tevcon”). 

Plaintiff moved for summary judgment on his § 240(1) and § 241(6) claims against Turner Construction (“Turner”), GIPEC, and Tevcon; the City and NYCEDC cross-moved to dismiss the Complaint; and all defendants cross-moved for summary judgment on their cross-claims against plaintiff’s employer, J.E.S. Plumbing & Heating (“JES”).  The trial court denied plaintiff’s motions, granted the City and NYCEDC’s motions to dismiss, and denied all defendants’ motion on their cross-claims against JES.  The trial court held that (1) the float stage involved in accident was a “vessel” under Longshore and Harbor Workers' Compensation Act (“LHWCA”); (2) LHWCA did not preempt any of worker's claims against project owner and general contractor; (3) project owner and general contractor violated scaffolding law by not providing various safety devices; and (4) the float stage owner did not exercise supervisory control of worksite.  Plaintiff appealed. 

Labor Law § 240(1) (DRA)

Since plaintiff was injured in navigable waters, and was an employee covered by the LHWCA receiving benefits, the First Department held federal maritime law applied to plaintiff's suit.  The First Department noted that while the float stage consisted of wooden planks bolted together, it had limited weight capacity and could only be moved short distances from pier, it was regularly used to carry workers and materials around water, and, although it generally was tied to land structures with line, it sometimes was untied to allow worker to move to different location to pick up materials from pier.  Accordingly, the float stage involved in plaintiff's accident constituted a “vessel” under the LHWCA, and therefore, the LHWCA section regarding compensation for injuries where third persons were liable barred plaintiff's claims against Tevcon under Labor Law §§ 240(1) and 241(6).  The First Department rejected Turner and GIPEC’s contention that the LHWCA preempted plaintiff's claims against project owner and general contractor under Labor Law §§ 240(1) and 241(6) because those state statutes were not inconsistent with federal maritime law. 

Significantly, the First Department held that although plaintiff’s injuries resulted directly from his fall on the float stage, at the same level where he had been working, he fell while struggling to avoid the elevation-related risk of falling into the water.  Defendants also failed to refute plaintiff's expert professional engineer's affidavit setting forth numerous devices that could have provided additional protection against falling off the float stage.  The First Department also rejected Turner's argument that it cannot be held liable pursuant to Labor Law § 240(1) because it was merely a construction manager.  Although its contract with GIPEC referred to Turner as a consultant, rather than a general contractor, Turner served as a general contractor for purposes of the statute since it was obligated to perform the larger facilities management project for GIPEC of which plaintiff's project was a part, hire all subcontractors and other personnel necessary to complete the project, and coordinate their work to ensure the timely completion of the project.  Thus, the First Department granted plaintiff’s motion for partial summary judgment on his § 240(1) claim against Turner and GIPEC, and denied the motion by all defendants except JES to dismiss the § 240(1) claim.

PRACTICE POINT:  Several things to remember from this case.  First, it does not matter what you call yourself in the contract to avoid being a defendant, if you retain the authority to supervise, control or direct the work of someone who is later renamed “Plaintiff”, you will be a valid labor law defendant.  Second, it no longer matters if the plaintiff actually falls to a different height as long as the fall to the same level was due to the plaintiff’s actions in avoiding falling to a different height.  In other words, if the plaintiff falls to the level he starts on while avoiding falling down a level, it will be a 240(1) case. 

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

The Labor Law § 200 and common-law negligence claims are predicated, in part, on plaintiff's having fallen onto his back after his foot got caught in rebar that had been installed across a hole in the float stage that was uncovered. Plaintiff's expert opined that the hole should have been covered. Trevcon, which owned the float stage and supplied it to plaintiff's employer, failed to establish that it lacked notice of this condition or that the condition was not dangerous

Trevcon however established its entitlement to the dismissal of the Labor Law § 200 and common-law negligence claims predicated on other conditions, namely algae and waves on the float stage. Waves were “an obvious condition known to plaintiff,” a 54–year–old foreman who had been working on the site for several months.  Further, to the extent plaintiff claims that his accident resulted from the means or methods of his work, Trevcon cannot be held liable because the record fails to show that it exercised the requisite supervisory control. Although Trevcon supplied the float stage and a Trevcon employee had previously assisted plaintiff and another JES worker on the float stage, no Trevcon employees had been present on the site for about a week leading to the accident.  Moreover, plaintiff testified that a JES supervisor was the person who instructed him on how to perform the work.

Indemnity Issues in Labor Law
(SEP)

The LHWCA states the “employer [of a covered person injured due to “the negligence of a vessel”] shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void.”  Accordingly, the First Department held the owner of the vessel was barred by the LHWCA from asserting its contractual indemnification claims against plaintiff's employer.  Further, GIPEC and Turner were not entitled to contractual indemnification pursuant to the subcontract between the owner and plaintiff’s employer (Trevcon and JES), because a provision in a subcontract incorporating standard clauses from the main contract by reference does not include indemnification clauses.  Finally, although JES implicitly concedes that it failed to obtain insurance naming Trevcon, Turner, and NYCEDC as additional insureds, its obligation to procure insurance did not apply to GIPEC and the City, since they were not named in that provision of the subcontract.

Van Nostrand v Race & Rally Const. Co., Inc.
February 5, 2014
Appellate Division, Second Department

Plaintiff, an employee of third-party defendant Master Mechanical Corp. (“Master”), was working at a site where a six-story residential building was under construction.  Master was a subcontractor for the project.  Defendant/third-party plaintiff, Race & Rally Const. Co., Inc. (“R&R”), was the general contractor, and defendants Carrier Northeast (“Carrier”), Penske Logistics, Inc. (“Penske”), and MCN Distributors, Inc. (“MCN”), were subcontractors hired in connection with the installation of air conditioning equipment in the building.  Carrier was hired to supply air conditioning equipment, Penske to transport the equipment to the site, and MCN to provide a crane to lift the equipment to the roof of the building.

Plaintiff testified that during the unloading of air conditioner condensers from a delivery truck, one of the pallets on which the condensers were positioned became stuck under rails on the side of the truck.  The truck driver and the crane operator asked plaintiff to position a pallet jack under the stuck pallet while the driver used a steel bar to pry back the side rail and the crane operator used the crane to put tension on the pallet.  Plaintiff further testified that, when the plan was put into action, the pallet and pallet jack moved toward him with enough force to knock him off the back of the truck, allegedly causing injury. He commenced this common-law negligence and Labor Law §§ 200, 240(1), and 241(6) action.  R&R commenced a third-party action against Master.  MCN and R&R separately moved for summary judgment dismissing the complaint and all cross-claims asserted against each of them.

The trial court, among other things, denied defendants respective motions for summary judgment dismissing the causes of action alleging common-law negligence and violations of Labor Law § 200 insofar as asserted against each of them; denied that branch of R&R's motion which was for summary judgment dismissing the cause of action alleging violations of Labor Law § 241(6) insofar as predicated on alleged violations of Industrial Code §§ 23-8.1(f) and 8.2(c), insofar as asserted against R & R.  The trial court also denied those branches of R&R's motion to dismiss all cross-claims as asserted against it and for conditional summary judgment on its claims for contractual and common-law indemnification against Master.

Labor Law § 241(6) (JAE)

In affirming the motion court’s denial of R & R’s motion for summary judgment dismissing the Labor Law § 241(6) case of action insofar as predicated on 12 NYCRR 23-8.2(c), the court held that the plaintiff raised a triable issue of fact as to whether 23-8.2(c)(3) applied, and a violation occurred.  This provision was designed to protect workers from hazards created by the horizontal movement of a load being hoisted by a crane.  However, the reversed the motion court’s denial of R & R’s motion as predicated on 12 NYCRR 23-8.1(f) (which applies to hoisting of loads with a mobile crane, tower crane or derrick) since, in response to R & R’s prima facie showing, the plaintiff failed to raise a triable issue of fact as to the applicability of that provision of the Industrial Code.

 

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

The Supreme Court erred in denying that branch of MCN's motion as for summary judgment dismissing the Labor Law § 200 cause of action against it.  Labor Law § 200 liability cannot be assessed against a subcontractor who did not supervise or control the work that caused the plaintiff's injury.   MCN demonstrated its prima facie entitlement to judgment as a matter of law by presenting evidence that it was a subcontractor which did not supervise or control the plaintiff's work, and plaintiff failed to raise a triable issue of fact.

However, the Supreme Court properly denied that branch of MCN's motion as for summary judgment dismissing the common-law negligence cause of action against it. A subcontractor may be held liable for negligence where the work it performed created the condition that caused the plaintiff's injury, even if it did not possess any authority to supervise or control the plaintiff's work or work area.  Plaintiff raised a triableissue of fact as to whether MCN's employee created an unreasonable risk of harm that was a proximate cause of the plaintiff's injuries.

The Supreme Court also erred in denying those branches of R&R's motion ere for summary judgment dismissing the causes of action for common-law negligence and Labor Law § 200 insofar as against R&R. Here, the plaintiff's claim arises out of the means and methods of the work, and R&R established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not supervise or control the performance of the work that led to the plaintiff's injuries, and plaintiff failed to raise a triable issue of fact.

Indemnity Issues in Labor Law (SEP)  In light of the Court’s ruling that R&R was free of negligence, it followed that R&R’s claims for common law and contractual indemnification were also appropriate.  The Court noted that conditional contractual indemnification is appropriate where, as here, the movant can establish that they, themselves, were not negligent, and that the movant faces potential statutory liability. R&R was able to meet that burden here.  For similar reasons, R&R was also entitled to a conditional order of common law indemnification as well.

 

Gould v E.E. Austin & Son, Inc.
February 7, 2014
Appellate Division, Fourth Department

The Cattaraugus – Little Valley School District (“School District”) hired defendant E.E. Austin & Son, Inc. (“E.E.”) as the general contractor for a project in the auditorium at the School District’s High School.  E.E. hired Casler Masonry, plaintiff’s employer, to perform masonry work on the project.  Plaintiff testified that he was performing masonry work on a ladder leading up to scaffolding when an unsecured tub of mortar located in an elevation position on a forklift fell and struck him on the head, shoulder, back, and leg, allegedly causing injuries.  Plaintiffs commenced this Labor Law and common-law negligence action against the School District and E.E. (“Defendants”).  Plaintiff moved for summary judgment on the Labor Law § 240(1) cause of action, and the trial court denied the motion. 

Labor Law § 240(1) (DRA)

To be entitled to summary judgment on a violation of § 240(1), “a plaintiff is required to prove, as a matter of law, not only a violation of the section, but also that the violation was a proximate cause of his or her injuries.”  Here, the Fourth Department noted that the trial court properly determined that plaintiff established a violation of the statute by submitting the affidavit of a coworker with personal knowledge of the facts and relying on his deposition testimony, and that the violation was a proximate cause of his injuries.  The Fourth Department further held that the trial court properly denied plaintiff’s motion because defendants raised a triable issue of fact whether plaintiff’s alleged injuries were caused by the falling mortar tub. 

In opposition to the motion, Defendants submitted evidence that plaintiff told his supervisor immediately after the incident that he was not injured, continued to work for the remainder of the regular workday, worked full days over the following week, and never complained of any alleged injuries associated with the mortar tub falling on him.  The Fourth Department held that Defendants’ evidence demonstrates that plaintiff sought medical treatment and stopped working only after suffering an abdominal injury while lifting buckets of mortar one week after the mortar tub struck him.  Even then, plaintiff did not mention to any medical professional that a mortar tub had struck him, and did not report any injuries attributable thereto, until 2½ months after the incident.  Thus, the Fourth Department affirmed the trial court’s decision denying plaintiff summary judgment on his Labor Law § 240(1) claim.

PRACTICE POINT:  Do not forget that the violation of the section must be a proximate cause of the injury.   It is always a good idea, if there is a gap between the happening of the accident and the initial treatment of specific complaint, to check the plaintiff’s work regarding records and question about that period of time carefully to determine if there could be a different cause of the injury.
                               

New York Hospital Medical Center of Queens v Microtech Contracting Corp.
February 13, 2014
Court of Appeals

Plaintiff New York Hospital Medical Center (“Hospital”) engaged defendant Microtech Contracting (“Microtech”) to undertake demolition in a basement room housing an incinerator at the Hospital's location in Flushing, Queens.  A Microtech "supervisor" met with brothers Luis and Gerardo Lema, and hired them to perform this work.  The Lemas, originally from Ecuador, were undocumented aliens not legally employable in the United States.  At the site, Microtech supplied the Lemas with a sledge hammer and a chipping gun, and explained what they were supposed to do.  The vibrations created by use of the tools given them dislodged a metal chimney or flue attached to the wall between 11 and 20 feet above the floor, which toppled, and struck them both. 

The brothers made claims for and received workers' compensation benefits, which Microtech's insurance carrier paid.  Additionally, the Lemas sued the Hospital for violations of the Labor Law.  The trial court granted the Lemas summary judgment on liability on their causes of action grounded in Labor Law §§ 240(1) and 241(6).  The parties thereafter entered into a high-low agreement at the ensuing damages trial, and after the verdict, the judgment was paid in keeping with this arrangement.  Meanwhile, the Hospital brought this action for common-law and contractual contribution and indemnification against Microtech, alleging that Microtech was performing the work pursuant to an agreement/contract with it; Microtech breached this contract/agreement and violated the Immigration Reform and Control Act (“IRCA”) when it hired the Lemas; the Lemas were injured solely on account of Microtech's negligence; and that Workers' Comp. § 11 did not preclude its lawsuit against Microtech.

In lieu of answering, Microtech moved to dismiss the Hospital's complaint on the grounds of documentary evidence and failure to state a cause of action, taking the position that section 11 barred the Hospital's action because evidence showed that the Lemas did not suffer a grave injury and that Microtech did not enter into the requisite written contract providing for contribution or indemnification.  Microtech further argued that absent proof of a grave injury or contractual contribution or indemnification, the Hospital did not state a claim, and contended that non-compliance with IRCA (which it disputed) would not deprive it of the protection of section 11 since the Workers' Comp. Law applies to all workers within the state's borders regardless of their immigration status.

In opposition to Microtech's motion, the Hospital did not argue that the Lemas suffered grave injuries or that Microtech had agreed in writing to contribution or indemnification.  Rather, the Hospital argued that Microtech should not be allowed to "hid[e] behind the language of Workers' Comp. § 11 after violating a federal statute" since "New York courts have long held that they will not award a plaintiff the benefit of an illegal bargain."  The trial court granted Microtech's motion to dismiss, reasoning that "[t]he exceptions to [section 11's] bar of claims for indemnity and contribution (against an employer providing Workers' Comp. benefits such as Microtech) do not include the circumstance here; essentially that Microtech employed unauthorized aliens who were injured on the job."

The Hospital appealed to the Appellate Division, arguing again that Microtech may not "profit" from its violation of IRCA.  The Hospital more clearly argued conflict preemption – i.e., that permitting an employer who knowingly hires undocumented workers to enjoy the tort immunity conferred by section 11 conflicts with IRCA's goal to discourage illegal immigration by decreasing employment opportunities for undocumented workers.  In response, Microtech first argued that section 11 barred the hospital's claim, as stated by the trial court.  Next, Microtech countered that whereas hiring an undocumented worker knowingly or without verifying employment eligibility is unlawful and exposes an employer to penalties under IRCA, this circumstance does not make IRCA "conflict [with], contradict or supersede" New York's Workers' Comp. Law.  Microtech argued that since it is well-settled that Workers’ Comp. applies to undocumented aliens, the statute logically also covers the employer who hires undocumented workers.  Third, Micortech asserted that it did not “profit” form the alleged IRCA violation because it paid premiums to its insurance carrier to obtain medical care and compensation benefits for its employees, including the Lemas. 

The Appellate Division unanimously affirmed.  Although acknowledging that precluding Microtech from receiving the protections provided by Workers' Comp. § 11 for its violations of the IRCA might support the IRCA’s ultimate goals by punishing Microtech for failing to verify the Lemas' immigration status, the Appellate Division opined that affording Microtech the economic protections of Workers' Comp. § 11 would not stand as an obstacle to the accomplishment or execution of the full purposes and objectives of Congress such that Workers' Comp. § 11 should be considered preempted.  Further, to rule in the Hospital's favor would effectively deny Microtech the economic protections it acquired under the Workers' Comp. Law in return for providing the Lemas with compensation for their injuries, as well as relieve the Hospital of its responsibility to ensure a safe construction site for workers under the Labor Law.  Accordingly, the Appellate Division held that the IRCA violations alleged did not abrogate the protection from third-party claims afforded to Microtech by section 11.  The Hospital appealed.  

Labor Law § 240(1) (DRA)

Section 11 bars third-party lawsuits for contribution and indemnification against an injured employee's employer unless the employee suffered a "grave injury," limited to death and the exclusive list of disabilities defined in the statute, or the employer agreed to contribution and indemnification in a written contract entered into with the third party prior to the accident.

The Hospital chose not to assert conflict preemption in its brief to the Court of Appeals.  Rather, the Hospital argued that the employment contracts between Microtech and the Lemas were illegal contracts unenforceable in New York Courts.  Thus, Microtech may not defend this case on the ground that the Lemas were its employees and therefore the action is barred by section 11.  According to the Hospital, Microtech violated federal law when it hired the Lemas without asking for any documentation showing they were authorized to work in the U.S. 

The Court of Appeals noted that it was not asked to enforce or recognize rights arising from an illegal oral employment contract between Microtech and the Lemas, and Microtech was not raising any such contract as a defense to common-law contribution or indemnification.  Moreover, section 11 does not even require an underlying employment contract. 

The Court of Appeals stated that under New York’s workers’ comp. scheme, an employee receives medical benefits and compensation for workplace injuries, regardless of fault, paid for by the employer.  In exchange, the employee gives up the right to sue the employer for personal injuries.  Section 11 “now explicitly limits an employer’s exposure to third-party liability to those situations where the employee suffers a grave injury, or the employer enters into a written contract of contribution or indemnification with the third-party.” 

In this case, the Lemas did not suffer grave injuries, there was no preexisting agreement for contractual contribution or indemnification, and the Hospital does not contend that IRCA preempts section 11.  Therefore, Microtech is entitled to the safe harbor in section 11, and the Court of Appeals affirmed the Appellate Division’s decision.

PRACTICE POINT:  The outcome appears to me to be logical; given that the employer did in fact pay comp benefits to plaintiffs, it seems as if they lived up to their portion of the bargain.  If plaintiffs’ status as undocumented workers does not preclude a recovery for lost wages, and the employer is obligated to pay comp benefits to the same undocumented employees, then it seems logical that the employer would be entitled to the protection of the exclusive remedy provided under section 11 of the Workers Comp Law.  I do not see this case as causing a shift in the way that labor law cases are prosecuted or defended, but it is an issue to be aware of nonetheless.

Simon v Granite Bldg. 2, LLC
February 13, 2014
Appellate Division, Second Department

Plaintiff and his wife (“decedent”) were hired to hang wallpaper in a newly constructed office building that was nearly complete, which was owned by defendant Granite Building 2, LLC (“Granite”).  On the morning of the incident, the day after they were instructed to begin work in the building, decedent drove her vehicle, with plaintiff as a passenger, to the job site.  Plaintiff and decedent were unable to enter the building through the front entrance, so decedent drover through an opening in a fence onto the upper deck of a parking garage that was still under construction adjacent to the building.  When the vehicle was about halfway between the opening gate in the fence and the leading edge of the parking deck, the decedent informed plaintiff that she could not stop.  The vehicle slowly slid on ice until it reached the edge of the incomplete parking deck, broke through the steel cable guardrail system, and fell approximately 32 feet to the lower level of the garage.  Plaintiff was injured when he jumped out of the vehicle before it fell, and decedent fell with the vehicle and died at the scene.

Plaintiff commenced this common-law negligence and Labor Law §§ 240(1), 241(6) and 200 action against, among others, Granite, defendant Lalezarian Properties, LLC (“Lalezarian”), the property manager, Kulka Construction Corp. and Kulka Contracting, LLC (together the “Kulka defendants”), the construction manager, Canatal Industries, Inc. (“Canatal”), the structural steel subcontractor, MCLO Structural Steel Corp. (“MCLO”), the installer of the structural steel, and FXR Construction, Inc., d/b/a DEV Construction (“FXR”), the concrete subcontractor (collectively “defendants”).

Plaintiff filed a motion for leave to amend the bill of particulars to allege violations of Industrial Code § 23-4.2 and OSHA standards against defendants.  Defendants' opposed that motion, and cross-moved for summary judgment to dismiss the complaint and all cross-claims.  The Kulka defendants also filed a motion for leave to amend their answer to assert cross-claims against Canatal, MCLO, and FXR.

The trial court granted plaintiff’s motion for leave to amend the bill of particulars to allege violations of Industrial Code § 23-4.2 and OSHA standards; denied Canatal’s cross-motion to dismiss the complaint against it and to dismiss the cross-claims of Granite and Lalezarian; and granted the Kulka defendants’ cross-motion for leave to amend their answer to include cross-claims for contractual indemnification and to recover damages for breach of contract for failure to procure insurance.  The trial court also denied MCLO’s motion to dismiss the complaint and cross-claims of Granite and Lalezarian; and denied FXR’s motion to dismiss the complaint. 

Labor Law § 240(1) (DRA)

The Second Department held the trial court should have granted those branches of defendants' motion and cross-motions to dismiss the Labor Law §§ 240(1) insofar as asserted against each of them because defendants made a prima facie showing of entitlement to judgment as a matter of law on the Labor Law §§ 240(1) and 241(6) claims as plaintiff and decedent were not engaged in an enumerated activity protected under Labor Law § 240(1) at the time of the accident.

In opposition to defendants' motion and cross-motions, plaintiff failed to raise a triable issue of fact because wallpapering in and of itself is not an enumerated activity under the statute, and plaintiff failed to allege sufficient facts to establish that the work he and decedent would have performed was part of the larger construction project.  The Second Department noted that it is not to "isolate the moment of injury" in determining whether a plaintiff is engaged in an activity protected under Labor Law §§ 240(1) and 241(6), it held that under the circumstances presented here, the accident occurred before plaintiff and decedent had begun any work that conceivably could have been covered under Labor Law §§ 240(1) and 241(6). 

PRACTICE POINT:  Always look to the four basic questions to establish a labor law case.  Is the plaintiff a proper plaintiff?  Is the defendant a proper defendant?  Is the overall project covered by the labor law and is the accident an event as contemplated by the statute.  Here the plaintiff was determined not to be an engaged in a protected activity at the time of the incident.  Wallpapering, by itself is not a protected activity and here the plaintiffs were not only not engaged in wallpapering at the time of the accident but no proof was produced by the plaintiff that the wallpapering was part of a larger project which would have been a covered activity.  Careful attention to both the overall project to make sure it qualifies and the specific task causing the injury is necessary to determine if the plaintiff has a valid labor law case.

 

Labor Law § 241(6) (JAE)

The Second Department held that since the trial court should have directed dismissal of plaintiff's Labor Law § 241(6) causes of action, that branch of plaintiff's motion for leave to amend the bill of particulars to allege violations of Industrial Code § 23-4.2 and OSHA standards as additional predicates to his Labor Law § 241(6) claim should have been denied.

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

The Supreme Court should have granted those branches of the motion of MCLO, and the cross motions of Canatal and FXR, which were for summary judgment dismissing the Labor Law § 200 causes of action insofar as asserted against each of them. These defendants established, prima facie, that they did not have authority to supervise or control the area of the work site where the plaintiff was injured, and plaintiff failed to raise a triable issue of fact.

Canatal and MCLO also established their entitlement to judgment as a matter of law dismissing the causes of action for common-law negligence against each of them.  A subcontractor may be held liable for negligence where the work it performed created the condition that caused the plaintiff's injury even if it did not possess any authority to supervise and control the plaintiff's work or work area.  Here, Canatal and MCLO demonstrated, prima facie, that they did not create the dangerous condition that caused the accident, and the plaintiff failed to raise a triable issue of fact in opposition.

However, the Supreme Court properly denied that branch of FXR's cross motion which was for summary judgment dismissing the common-law negligence cause of action insofar as asserted against FXR. The evidence presented by FXR failed to establish, prima facie, that its workers did not create a dangerous condition when they removed a portion of the fence meant to close off access to the parking deck to allow for a delivery truck to enter and then failed to replace the fence once the delivery was complete.

Indemnity Issues in Labor Law (SEP)

Because Canatal successfully defeated plaintiff’s claims of common law negligence/Labor Law § 200, it followed that Canatal was also entitled to dismissal of the cross claims for common law indemnification that had been asserted by Granite (as owner) and Lalezarian (as construction manager). 

FXR’s motion to dismiss Granite and Lalezarian’s contractual indemnification cross-claims was not successful.  Recall that although FXR did not supervise, direct or control the decedent and plaintiff’s work, respectively, a question of fact existed as to whether FXR’s decision to cut the fence created a dangerous condition which resulted in the incident at issue.  Where a question of fact existed as to FXR’s potential liability, it followed that FXR could not have met its burden to dismiss the resulting indemnity claims. 

Finally, Canatal and MCLO both moved to dismiss the cross-claims of Granite and Lalezarian alleging failure to procure insurance.  In both instances, Canatal and MCLO failed to establish that they either complied with the insurance procurement request, or had no obligation to obtain insurance in the first place. 

 

 

Degen v Uniondale Union Free Sch. Dist.
February 19, 2014
Appellate Division, Second Department

Plaintiff was allegedly injured after falling off a ladder, and he moved for summary judgment on his Labor Law § 240(1) claim against defendant Uniondale Union Free School District (the “District”).  The trial court denied plaintiffs’ motion, and he appealed.

Labor Law § 240(1) (DRA)

In order to establish liability under Labor Law § 240(1), there must be a violation of the statute, and the violation must be a proximate cause of the plaintiff's injury.  Moreover, “not every fall from a ladder establishes that the ladder did not provide proper protection.” 

Here, the Third Department held plaintiffs’ own submissions demonstrated the existence of triable issues of fact as to how the injured plaintiffs accident occurred, including whether he fell because he merely lost his balance.  In any event, the Second Department held that defendants and third-party defendant demonstrated that plaintiffs’ motion was premature as further discovery may lead to relevant evidence.  The Second Department affirmed denial of plaintiff’s motion without prejudice to renewal upon completion of discovery.

PRACTICE POINT:  The timing of a Summary Judgment motion can be critical.  Here the plaintiff moved prior to the Note of issue and discovery wasn’t done.  Some courts in the state would therefore not allow a further Summary Judgment motion and the opportunity could be lost.  Make sure you know the local rules of the court before bringing the motion in the first instance if discovery is not complete.  This case also points out once again that simply losing your balance and falling from a ladder is not a labor law case but that there must be a problem of some kind with the safety device, the ladder, which caused the fall.  If can be that the ladder shift or moves causing the plaintiff to fall, it can be that the ladder falls over taking the plaintiff with it, but it has to be the safety device’s failure which causes the fall, not a mere loss of balance.

 

Utica Mut. Co. v Cardet Constr. Co., Inc.
February 19, 2013
Appellate Division, Second Department

Defendant Cardet Construction Co., Inc. (“Cardet”), entered into a contract with American Airlines, Inc. (“American”), to perform construction and improvement of the new Admirals Club and Flagship Lounge at JFK (the “construction contract”).  Plaintiff, Utica Mutual Insurance Company (“Utica”), as surety, issued a performance bond and a labor and material payment bond, each in the sum of $2,500,000, naming Cardet as principal and American as obligee.  Defendants executed an indemnification agreement in favor of Utica in connection with the bonds.  Pursuant to the indemnification agreement, defendants agreed to "indemnify and save [Utica] harmless from and against every claim, demand, liability, cost, charge, suit, judgment and expense which [Utica] may pay or incur in consequence of having executed . . . [the] bonds . . . including fees of attorneys, whether on salary, retainer or otherwise, and the expense of procuring, or attempting to procure, release from liability, or in bringing suit to enforce the obligation of any of the indemnitors under this [a]greement."  The indemnification agreement also included a provision requiring defendants to post collateral security, immediately upon demand by Utica, to cover any claim, suit, or judgment under the bonds.

American later declared that Cardet was in default under the construction contract.  American did not seek to have Utica complete the balance of the remaining work, claiming that Utica would not be able to ensure completion of the work in a timely manner as required by the construction contract.  Cardet commenced an action against American (the “underlying action”) alleging breach of contract and seeking damages in excess of $1 million. Subsequently, American asserted a counterclaim against Cardet and Utica, as surety, seeking damages in excess of $1 million. Utica retained counsel to defend against American's counterclaim in the underlying action.  Pursuant to the indemnification agreement, Utica demanded indemnification from defendants for the attorney fees and expenses it incurred in the underlying action, and demanded that defendants post a collateral security deposit to cover American's claims under the bonds.  After defendants refused to comply with these demands, Utica commenced this action.

The trial court denied those branches of Utica's motion which were for summary judgment seeking specific performance of the collateral security provision of the indemnification agreement, summary judgment seeking indemnification in the sum of $115,212.74 for attorney fees and expenses Utica allegedly incurred by reason of its suretyship of Cardet, and summary judgment dismissing the defendants' affirmative defenses. 

Indemnity Issues in Labor Law (SEP)

 

Fabrizi v 1095 Ave. of the Ams., L.L.C.
February 20, 2014
Court of Appeals

Plaintiff, an electrician employed by Forest Electric Corp. ("Forest"), sustained injury when a 60-80 pound conduit pipe fell on his hand.  Forest had been hired by defendant Magen Construction Company, Inc. ("Magen") to overhaul the electrical system in offices leased by defendant Dechert, LLP ("Dechert") from the building owner, defendant 1095 Avenue of the Americas, LLC ("1095").  As part of the overhaul, Forest was responsible for the installation of conduit piping through the building's floors. 

On the day of the incident, plaintiff was relocating a pencil box pursuant to a "change order" as the pencil box had been positioned approximately one week earlier in such a way that it threatened to obstruct part of the building infrastructure yet to be installed.  To accomplish the task, plaintiff disconnected the box from a structure known as a "Kindorf support," which anchored the box to the floor and the wall, and also from two sections of conduit pipe running above and below the pencil box, respectively. 

After the pencil box was disassembled from its supports, a considerable length of galvanized steel conduit, weighing 60-80 pounds, was left hanging above plaintiff as he knelt below to drill.  The conduit was connected to another section of pipe near the ceiling by a compression coupling, which is essentially a cylindrical metal sleeve that tightens around the ends of two pipes to secure them together.  When plaintiff began drilling holes in the concrete floor in preparation for relocating the Kindorf, the suspended conduit came loose from its coupling and plummeted to the floor, crushing plaintiff's right thumb.

Plaintiff thereafter brought this action against defendants and others, asserting, as relevant here, that defendants violated Labor Law § 240(1).  Defendants 1095 and Magen moved for summary judgment dismissing the § 240(1) claim.  Plaintiff opposed the motion and cross-moved for partial summary judgment on liability against 1095, Magen and Dechert, claiming, in reliance on plaintiff's deposition testimony, that a more secure "set screw coupling," rather than the purportedly inadequate compression coupling, should have been used to secure the top conduit.

The trial court granted plaintiff's cross-motion, and denied defendants' motion seeking to dismiss the § 240(1) claim, holding that the conduit, being attached to the ceiling by a compression coupling that failed, was not properly secured so as to afford plaintiff protection.  The First Department modified the decision by denying plaintiff's motion for summary judgment, holding that plaintiff failed to establish as a matter of law that defendants' failure to provide a protective device, i.e., a set-screw coupling, was a proximate cause of his accident, but otherwise affirmed.  The First Department’s dissent argued the coupling did not constitute a statutory safety device of the kind enumerated in the statute and therefore, defendants’ motion should have been granted. 

Labor Law § 240(1) (DRA)

In order to prevail on summary judgment in a § 240(1) “falling object” case, the injured worker must demonstrate the existence of a hazard contemplated under that statute “and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein.”  Essentially, the plaintiff must demonstrate that at the time the object fell, it either was being "hoisted or secured" or "required securing for the purposes of the undertaking."  Contrary to the dissent's contention, § 240(1) does not automatically apply simply because an object fell and injured a worker; rather, "a plaintiff must show that the object fell … because of the absence or inadequacy of a safety device of the kind enumerated in the statute."

The Court of Appeals held the First Department properly concluded that plaintiff had not established entitlement to summary judgment on liability, but erred in denying summary judgment to defendants 1095 and Magen, because they established as a matter of law that the conduit did not fall on plaintiff due to the absence or inadequacy of an enumerated safety device.  According to the Court of Appeals, the compression coupling, which plaintiff claims was inadequate, is not a safety device "constructed, placed, and operated as to give proper protection" from the falling conduit because its only function was to keep the conduit together as part of the conduit/pencil box assembly.  Moreover, the coupling had been installed a week before the incident and had been serving its intended purpose until a change order was issued and plaintiff dismantled the conduit/pencil box assembly.

The Court of Appeals rejected plaintiff's argument that the coupling itself is a safety device, albeit an inadequate one, because said argument extends the reach of § 240(1) beyond its intended purpose to any component that may lend support to a structure.  It cannot be said that the coupling was meant to function as a safety device in the same manner as those devices enumerated in the statute, and it follows that defendants' failure to use a set screw coupling is not a violation of § 240(1)'s proper protection directive.  Accordingly, a set screw coupling, utilized in the manner proposed by plaintiff, is not a safety device within the meaning of the statute.  Further, plaintiff conceded that compression and set screw couplings are "basic couplings" that serve identical purposes, namely, to function as support for the conduit/pencil box assembly, not to provide worker protection and therefore, the fact that defendants utilized compression couplings rather than set screw couplings as part of the assembly did not alter the Court of Appeals analysis.

According to Chief Judge Lippman’s dissent, “the single decisive question is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.”  As such, the crucial legal questions arising from this case are whether the task of repositioning the pencil box entailed an elevation-related risk that triggered defendants' duty to supply adequate safety devices, and whether the failure to do so caused the accident.

The dissent held that plaintiff was exposed to a gravity-related hazard within the meaning of the statute because he was kneeling on the floor to drill, situated several feet below a 60-to-80-pound segment of conduit pipe made of galvanized steel.  The conduit was attached to the pipe above by only a compression coupling whose grip was inadequate to withstand the vibrations of drilling.  As to the question of proximate cause, the record evidence shows that the absence of an effective safety device caused plaintiff's injury as a tool capable of stabilizing the conduit pipe — whether brace, clamp, coupling, or otherwise — would be precisely the sort of device contemplated by § 240(1).  Without such a device, however, the pipe was insufficiently secure and plaintiff incurred injury as a result. 

By focusing myopically on whether couplings fall under the statute, the majority loses sight of defendants' burden on summary judgment.  To prevail, it is, according to the dissent, not enough for defendants to argue that a particular alternative device can be sensibly distinguished from those enumerated in the statute.  Instead, they must demonstrate either the absence of a gravity-related risk or, where the risk posed by the elevation differential is readily apparent, a deficient causal nexus between the failure to provide a safety device and plaintiff's injury. 

Although defendants raised a challenge with regard to causation in arguing that plaintiff's method of performing the work unnecessarily created the risk by dismantling the pencil box prior to drilling holes in the floor, the dissent held there was no evidence presented that this modus operandi constituted anything but standard procedure in the trade.  Thus, the dissent held that plaintiff made a prima facie showing that he had performed the same task four or five times in the course of his career and had routinely undertaken it in an identical manner.  In opposition, defendants failed to raise a triable issue of fact as to whether plaintiff's own conduct was the proximate cause of the accident. 

PRACTICE POINT:  The main point of the decision is whether the falling object; the conduit; was secured by a safety device or not, and does that matter in deciding the case.  The majority found that it did, in fact, matter, finding that the coupling was not a safety device as intended by the statute and thus, the fact that the object fell is not caused by the failure of a safety device.  On the other hand, the dissent points out that the Court of Appeals in both Wilinski and Runner looked beyond the specific safety device issue and held that where there is a gravity-related risk, there was a failure to provide a safety device appropriate to prevent the object from falling (or rolling down the stairs in the Runner case) that it was, in fact, a labor law case.  Therefore, the question becomes how does this case affect the way we prosecute or defend a labor law case.  The answer is it provides the defense with a case to rely on when there is a falling object which, while not actually being hoisted or secured, falls.  If the object falls due to the failure of an enumerated, or obvious, safety device, then it remains a valid labor law case, but if the object falls without the failure of a safety device, then, applying this case, it is not a valid case. 

Morris v Pavarini Constr.
February 20, 2014
Court of Appeals

Plaintiff, a carpenter working at a building construction site in Manhattan, was allegedly injured when a large, flat object fell on and injured his hand.  He commenced this personal injury action against defendants, the construction manager and owner of the building, alleging common-law negligence and violations of Labor Law §§ 200, 240, and 241(6).  As relevant to this appeal, in support of his § 241(6) claim, plaintiff alleged that the object that fell on his hand was a "form" subject to specific safety requirements under Industrial Code 12 NYCRR 23-2.2(a).  A form refers to a mold used in the shaping and solidification of concrete.  Defendants countered that the object was not a "form" within the meaning of the Industrial Code because it was only one side of an as-yet uncompleted form, in other words a component of an unfinished form.

Defendants moved to dismiss plaintiff's § 241(6) claim, and the trial court denied the motion.  The First Department reversed, granted the motion and dismissed the claim, holding that 23-2.2(a) did not apply because "the form at issue was still in the process of being created.”  The Court of Appeals reversed the First Department, holding that while the first sentence of § 241(6) reiterates a common-law standard of care, the second sentence requires owners and contractors to comply with the Commissioner of Labor's rules, and where such a rule or regulation imposes a "specific, positive command," owners and contractors are subject to a nondelegable duty.  As the Court of Appeals found a specific requirement in section § 23-2.2(a) which mandates that "forms" be "braced or tied together so as to maintain position and shape,” the First Department should not have granted summary judgment based on the record as then developed.  The Court of Appeals remitted the matter to the trial court for a framed-issue hearing on whether "the words of the regulation can sensibly be applied to anything but completed forms."

At the hearing before the trial court, the parties introduced expert testimony on how forms are assembled, and how component parts and completed forms are stabilized and secured at construction sites.  Defendants structural engineer expert described a concrete form as "an assembly of all kinds of components" including form panels, and defined a brace as "a structural element" used to hold "the form in place so it won't move and shift."  He also testified that a form wall must be secured in order to resist the impact of wind loads.  On cross examination, he testified that in addition to wind loads, forms must resist other types of impact, including human contact like being bumped by a worker.  Defendants’ expert admitted that the first side of a form that is put up, called the back component of the form, could be braced in order to prevent it from falling, and that braces can be installed when the back wall is raised.

Plaintiff introduced expert testimony of a civil engineer and a carpenter.  Plaintiff's engineer testified that it was important to brace forms because they needed support to withstand the impact of wind loads that might "turn the wall over," and that bracing was necessary to resist the impact of vibrations common to construction sites.  He testified that once a form wall goes up "you would have to brace it because it could be inherently unstable at that point," because of blowing wind, bumping, and vibrations.  In describing bracing during the assembly process, he testified that as a wall goes up it is braced, and the bracing "would run from the wall of the form … diagonal[ly] down to the ground."  Plaintiff's carpenter expert testified that a brace ensures that a wall does not fall over, and that braces could run from the top of the form and be bolted or nailed to concrete blocks.

The trial court thereafter granted defendants' summary judgment motion and dismissed plaintiff's § 241(6) claim, concluding that the back form wall was part of an entire form, and as such, did not come within the coverage of the regulation or § 241(6).  Plaintiff appealed.  The First Department, with one Justice dissenting, reversed on the law, and, upon a search of the record, granted summary judgment to plaintiff.  According to the majority, the expert testimony showed that the regulation could apply to forms as they were being constructed, and that a back form must be braced to maintain its position.  The majority held that erection of the back form wall is the first step in the process of bracing and or tying a form, such that it would defy common sense to maintain that the entire form could be structurally safe and maintain its "position and shape" pursuant to § 23-2.2(a) without a proper brace.  The dissent argued that the focus of § 23-2.2(a) "is the structural integrity of the form during the placement of concrete,” and the expert testimony was consistent with this interpretation.  Defendants appealed pursuant to leave granted by the First Department.

Labor Law § 241(6) (DRA)

Following the framed-issue hearing and opinions of the trial court and First Department on the legal question of the applicability of the regulation to plaintiff's case, defendants reasserted their argument that the regulation applies only to completed forms, and not to the back form wall which caused plaintiff's injuries.  According to defendants, the operative regulatory language that imposes more than a general duty of care requires that forms "shall be properly braced or tied together to maintain position and shape," and the expert testimony established that this requirement cannot sensibly be applied to one side of a form standing on its own because it has no shape to maintain.  Defendants contend this is the only plausible reading of § 23-2.2(a) because the regulation is intended to address the dangers associated with the "blow out" or collapse of a form containing liquid concrete. 

Plaintiff argued that the experts made clear that the bracing required by § 23-2.2(a) may be applied to a single form wall for purposes of ensuring worker safety and to maintain the form wall's position and shape.  Any other reading, plaintiff argues, is nonsensical because of the danger posed to workers from the hoisting of a single form wall to a vertical position during the assembly of the form, and the wall's vulnerability to collapse from a variety of construction site events.

The Court of Appeals held the testimony adduced at the framed-issue hearing establishes that the object that fell on plaintiff was a back wall panel, which was a component of a form under assembly at the time of the injury, and that the back wall is the type of component which can be subjected to the requirements of § 23-2.2(a) because the experts testified that a back wall must be braced once it is hoisted up to a vertical position in order to withstand the impact of external as well as internal conditions on the wall and a brace could be installed when a back wall is hoisted in order to stabilize it specifically against collapse from the external condition of wind loads. Defendants' expert testified that wind loads are "part of the loads that the form assembly has to resist," and braces could be installed when the first wall (the back wall) is put up, and once the wall is raised it could maintain this position by placement of a brace that prevents the back wall from falling.

Plaintiff's engineer testified that a form wall must be braced otherwise it topples over, and the only way to prevent a wall from turning over from a wind load blowing on it is "by having a brace."  He also testified that once the back wall goes up it is braced, and that both walls did not need to be in place to install a brace, and once up, the wall may be standing for some period, possibly up to days at a time, before the form is completed, a reality of construction work also admitted by defendants' expert.  Plaintiff's carpenter expert reiterated the importance of bracing before the front wall is attached, in order to keep the wall from falling.

The Court of Appeals also rejected defendants argument that the regulation's provision (b), titled "Inspection," requires that certain designated persons make continuous inspections to ensure "the stability of all forms, shores and reshores including all braces and other supports during the placing of concrete," similarly limits the mandatory bracing and tying requirement of provision (a) to completed forms because the ongoing inspection requirement contained in provision (b), applicable only to periods of the "placing of concrete," merely recognizes that during this stage of concrete work, the stability of the form is especially vulnerable and requires particular attention, as noted by its other requirement that "[a]ny unsafe condition shall be remedied immediately."  According to the Court of Appeals, interpreting the regulation as defendants suggest would result in diminished protections for workers during the assembly of forms, as compared with the concrete pouring process stage of the work, a reading of the regulation that runs counter to its text and undermines the legislative intent to ensure worker safety.

As the expert testimony supports the conclusion that the language of § 23-2.2(a) can sensibly be applied to other than a completed form, and may apply to a wall component, the First Department properly reversed the trial court's decision, and moreover, did not abuse its discretion as a matter of law by granting summary judgment to plaintiff.

According to Judge Pigott’s dissent, the testimony at the "framed issue" hearing was clear that a form was just that, a completed form; and that the regulation could not be reasonably interpreted as applying to anything but completed forms.  Judge Pigott argued that the aim of the regulation at issue is to ensure the structural integrity of "forms" that have been assembled as part of the concrete work, and noted that even plaintiff's expert conceded that forms are constructed by erecting a "form wall," placing rebar in the middle, erecting a back form wall and then tying it together.  Plaintiff’s expert further explained that whenever concrete is poured, it must be poured into a form.

Although both parties' experts agreed that a form "wall" should be braced before the form is completed to ensure that it does not tip over during the process of constructing the form, Judge Pigott held the issue is not whether such bracing should be used to support a form "wall," or whether such bracing could be utilized as such support but, rather, whether section § 23-2.2(a) was designed to address the bracing of a form wall in the first place.  In Judge Pigott’s view, the majority's interpretation expands the reach of the regulation to include the bracing of an object, i.e., a form "wall" that is absent from the regulation, which directs that "forms" (and not a form wall) "be properly braced or tied together." 

Simply put, although plaintiff may have been struck by a form "wall," he was not injured by a "form" and, more specifically, was not the victim of a type of accident this section was designed to prevent.  Had the regulation required a form "wall" be braced "so as to maintain position and shape" — as the majority claims it should be interpreted — then that interpretation would be consistent with the regulation's directives.  But a cursory glance at the regulation provides the answer: "Forms . . . shall be properly braced or tied together so as to maintain position and shape."  Once the forms are erected, they are ready for a concrete pour, but that does not necessarily mean that the concrete will be ready for pouring at that moment.  The regulation is there to ensure that such forms maintain their position and shape both before and during the pour, which can be done through either bracing or tying together. § 23-2.2(b) underscores that the regulation as a whole applies to completed forms, as it provides that "the stability of all forms . . . including all braces and other supports" must be continuously inspected "during the placing of concrete."  Indeed, § 23-2.2(b) and (a) can be read in tandem as applying to completed forms; the latter provision requires that forms be braced or tied together even before the concrete pour (so as to protect against wind loads and vibrations), while the former provision affords protection to workers against the increased load on the forms by the liquid concrete.  Therefore, the majority interprets § 23-2.2(a) in an extremely broad manner.

PRACTICE POINT:  This decision would seem to be of limited application as it would only be useful in cases involving this specific regulation.  That said, those of us who practice in this ever changing environment will undoubtedly find an argument that if the Court of Appeals can expand the meaning of a regulation beyond the actual language of the regulation in one case that it would allow for such an expansion as to other regulations as well.  Keep a close eye out for other regulations in which attorneys seek to expand its application beyond the actual language.

DeJesus v 888 Seventh Ave. LLC
February 25, 2014
Appellate Division, First Department

Plaintiff, a window washer, was allegedly injured while operating scaffold at a construction project for caulkers who could not have safely discharged their duties without plaintiff operating the scaffolding.  He brought this common-law negligence and Labor Law §§ 200, 240(1) and 241(6) action.  Defendants moved for summary judgment dismissing the complaint, and plaintiffs cross-moved on the 240(1) claim.  The trial court granted defendant 888 Seventh Ave. LLC’s (“888”) motion to dismiss; denied plaintiffs cross-motion on the 240(1) claim; denied defendant R&R Scaffolding’s (“R&R”) motion to dismiss the 200 and common-law negligence claims against it; granted R&R’s motion to dismiss 888’s cross-claims for contribution and common-law indemnification against it; and granted third-party defendant SMB Windows, LLC’s (“SMB”) motion to dismiss the third-party complaint.

Labor Law § 240(1) (DRA)

Although plaintiff was not operating the scaffold in his capacity as a window washer at the time of the accident, he was operating it for the caulkers who could not have safely discharged their duties without him.  Therefore, since caulking is an enumerated activity under Labor Law § 240(1), plaintiff was entitled to the same statutory protection as the caulkers, and his § 240(1) claim against 888 should not have been dismissed.  Further, given the evidence that the lanyard and harness provided to plaintiff proved inadequate to shield him from falling through the rail track, plaintiff is entitled to summary judgment on the issue of liability on that claim.

PRACTICE POINT:  This case reminds us that we need to analyze the task being undertaken at the time of the accident and the overall project the plaintiff was involved in. Here the overall project was construction and the specific task created an elevation risk which caused injury to the plaintiff. 

Labor Law § 241(6) (JAE)

The protections of Labor Law § 241(6) are inapplicable to plaintiff's claims since he was not engaged in construction work at the time of the accident.

 

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

The testimony of plaintiff's supervisor that 888's property manager had the authority to direct plaintiff's work raises a triable issue of fact whether 888 supervised or controlled plaintiff's work for purposes of the Labor Law § 200 and common-law negligence claims against it.

Indemnity Issues in Labor Law (SEP)

The question of fact as to 888’s negligence likewise precluded its attempts at both common law indemnification, as well as contractual indemnification. 

 

DePaul v NY Brush LLC
February 25, 2014
Appellate Division, First Department

Plaintiff was allegedly injured when a wooden plank broke underneath him while he was walking across it.  He filed this common-law negligence and Labor Law §§ 200 and 241(6) action based upon Industrial Code § 23-1.7(e)(1).  The trial court denied that portion of defendants Holt Construction Corp., Pepsi Cola Bottling Company of New York, Inc., and NY Brush LLC's (collectively ”Defendants”) motion for summary judgment to dismiss the Labor Law § 200 and common-law negligence claims as against them; granted the part of their motion seeking dismissal of  the Labor Law § 241(6) claim as against them; denied their motion seeking summary judgment on their contractual indemnification claim against defendant/third-party defendant Ruttura & Sons Construction Co., Inc.; and granted the part of Ruttura's motion for summary judgment seeking dismissal of the aforementioned contractual indemnification claim. 

Labor Law § 241(6) (JAE)

Insofar as the Labor Law § 241(6) claim was based on a violation of 12 NYCRR 23-1.7(e)(1), it should be dismissed because the accident occurred in an open working area, evidence that workers traversed the plank to get from the street to the job site notwithstanding.  However, insofar as it was based on a violation of 12 NYCRR 23-1.11(a), the § 241(6) claim should not be dismissed because defendants failed to demonstrate that the accident was not caused by unsound or defective lumber.

 

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

Plaintiff's photographs of the site, taken immediately after he fell, showed three wooden planks lined up side by side but unconnected.  The job superintendent and the site safety manager of defendant Holt, the general contractor, admitted that these photos showed planks that were wet and rotten, posing a hazard to any workers walking across them.  These Holt employees denied that Holt placed the planks there, and testified that they did not see any dangerous condition on the site before the accident.  However, they both conducted regular inspections of the whole site, and the site safety manager would have inspected the subject area about an hour before plaintiff fell.  Moreover, plaintiff testified he had seen planks there for three weeks preceding his accident, and the defects observed in the planks would tend to be longstanding. 

Therefore, the First Department held this evidence raises triable issues of fact about Holt's constructive notice.  Defendants Brush and Pepsi also failed to demonstrate that they neither created nor had actual or constructive notice of the dangerous condition that caused plaintiff's injuries, since they do not point to any probative evidence on these questions.  The First Department thus affirmed the trial court’s denial of defendants’ motion to dismiss the § 200 and common-law negligence claims.

Indemnity Issues in Labor Law (SEP)

Defendants Holt, Brush and Pepsi all moved for summary judgment seeking contractual indemnification against Ruttera.  Because the incident happened in, or around, the parking lot that Ruttera had been retained to construct, the Court ruled that the incident involving plaintiff arose from, or was connected, with the performance of their work.  However, the Court refrained from granting the motions for summary judgment because, as mentioned above, plaintiff’s Labor Law § 200 claims were still very much in doubt. 

Peiper’s Point – The Court is alluding to the case law that provides indemnity is not appropriate where the party seeking protection is not, themselves, liable.  The theory is that where there is no liability against the indemnitee, it follows that there is no loss.  Where there is no loss, there can be no indemnity payment and the claims become moot.

 

 

Cioffi v Target Corp.
February 26, 2013
Appellate Division, Second Department

Plaintiff, an employee of third-party defendant Communication Technology Services (“CTS”), was performing work at a Target store in Nassau County as part of a larger renovation project.  Plaintiff was using a scissor lift to install a new paging system inside a stockroom.  After completing his work, plaintiff removed the scissor lift from the stockroom.  However, he realized he left his tool pouch hanging from a pipe in the stockroom and went to retrieve it, using a ladder inside the stockroom that did not belong to CTS.  He decided to use that ladder rather than the lift because he had already damaged the stockroom door with the lift.  In addition, it took him 40 minutes to move the lift in and out of the stock room, and he was under pressure from his boss to complete his assigned work for the day.  He also chose not to retrieve a CTS ladder from a storage container outside the store because the work was going on overnight, and it would have taken 30 minutes to have a manager or security guard assist him in getting that ladder.  While plaintiff used the ladder inside the stockroom, it "kicked out" or "buckled" under him, causing him to fall to the floor.

He and his wife commenced this Labor Law § 240(1) action against, among others, Target Corporation, Target Stores, Inc., Westbury Holding Company, Bailiwick Data Systems, Inc., Bailiwick Enterprises, LLC, and Bailiwick, LLC (collectively the “Target defendants”).  Westbury Holding Company owned the premises, and Bailiwick Data Systems, Inc., Bailiwick Enterprises, LLC, and Bailiwick, LLC, collectively were the subcontractors that hired CTS.  The Target defendants commenced a third-party action against CTS.

CTS moved to dismiss the complaint and third-party complaint, and the Target defendants separately moved to dismiss the complaint insofar as asserted against them.  The trial court denied those branches of the motions which were for summary judgment dismissing the Labor Law § 240(1) claim against the Target defendants, but otherwise granted the motions.  CTS and the Target defendants then separately moved for leave to reargue those branches of their motions.  The trial court granted the motions and, upon re-argument, granted those branches of the motions which were for summary judgment dismissing the Labor Law § 240(1) claim asserted against the Target defendants.  Plaintiffs appeal.

Labor Law § 240(1) (DRA)

The Second Department held that trial court erred in, upon reargument, in granting those branches of the Target defendants’ motions dismissing the Labor Law § 240(1) claim.  Although a plaintiff's negligent conduct in failing to use an available and adequate safety device which is the sole proximate cause of the accident will relieve a defendant of liability, the Second Department held it cannot be said here, as a matter of law, that plaintiff was negligent in choosing to use the ladder inside the stockroom, since it was left to his discretion whether to use a ladder or lift depending on the height of the work, and the ladder was high enough for him to retrieve his tool pouch.

Additionally, CTS and the Target defendants did not establish, prima facie, that plaintiff was a recalcitrant worker as they failed to eliminate all issues of fact as to whether plaintiff knew that he was expected to use the lift or a CTS ladder, and not the ladder inside the stockroom, and whether plaintiff had a good reason for using the ladder from which he fell.  The Second Department also rejected the Target defendants' contention that plaintiff was not engaged in an activity protected under Labor Law § 240(1), although it raised this argument for the first time on appeal.  Lastly, the Second Department declined plaintiffs' invitation to search the record and award them summary judgment on their Labor Law § 240(1) claim as it held there are triable issues of fact as to whether plaintiff's own conduct was the sole proximate cause of his injuries.

PRACTICE POINT:  This case points out just how difficult it can be to get a sole proximate cause defense to prevail.  The plaintiff here made no bones about the fact that the lift was available or that the reason he needed to climb to a height was because he had left his tools hanging from a pipe by mistake.  It was simply easier for the plaintiff to use a ladder rather than the lift so he did.  That is not enough to make it either a sole proximate cause or recalcitrant worker case. 

 

LABOR LAW § 241(6) REGULATIONS; SPECIFIC OR GENERAL (MAS)

Regulation § 23–6.2(a) concerning standards for hoisting ropes, is sufficiently specific to support a Labor Law § 241(6) cause of action, and potentially applicable where plaintiff struck by heavy wire when rope pulling wire up into conduit broke; 6.1(a)’s exception for forklifts used for material hoisting inapplicable where forklift being used at job site as substitute power source for hoisting rather than for its intended use (Rought v Price Chopper Operating Co., Inc., 73 AD3d 1414, 901 NYS2d 418 [3d Dept 2010]).  Regulation § 23–6.2(a) held applicable to accident when worker was “hoisting” by pulling on a rope tied to a cable in order to draw an elevator cable up to a “cat-head” (Hayden v 845 UN Ltd. Partnership, 304 AD2d 499, 758 NYS2d 647 [1st Dept 2003]).
Regulation § 23–6.2(c) requiring that pulley blocks and similar devices be securely fastened or used with safety hooks, is sufficiently specific to support a Labor Law § 241(6) cause of action (Guerra v Port Authority of New York and New Jersey, 35 AD3d 810, 828 NYS2d 440 [2d Dept 2006]; Augello v 20166 Tenants Corp., 251 AD2d 44, 673 NYS2d 664 [1st Dept 1998]).
Regulation § 23–6.2(d) stating that chains shall not be used as slings in hoisting operations, is sufficiently specific to support a Labor Law § 241(6) cause of action (Puckett v Erie, 262 AD2d 964, 696 NYS2d 780 [4th Dept 1999]).  Regulation § 23–6.2(d) held inapplicable to defective hooks being used with chain (Guerra v Port Authority of New York and New Jersey, supra). 
Regulation § 23–6.3 pertaining to material platform or bucket hoists, held inapplicable to injuries allegedly sustained by laborer when a bag of construction debris tossed from the roof of a building fell onto his head (Fried v Always Green, LLC, supra); inapplicable to injuries allegedly sustained by worker during attempt to carry 600–pound door frame up building staircase because block and tackle ultimately used did not qualify as material hoist and, in any event, was not used at the time of the accident (Soles v Eastman Kodak Co., supra).
Regulation § 23–6.3(a) requiring that material platforms and bucket hoists erected after June 1, 1972 be designed by a licensed professional engineer and that the plans and specifications be kept on the job site, is sufficiently specific to support a Labor Law § 241(6) cause of action (Kretowski v Braender Condominium, supra).  Regulation § 23–6.3(a) held inapplicable where worker was using rope rather than mechanical hoisting device to lower bucket of steel bolts (Aloi v Structure-Tone, Inc., surpa).
Regulation § 23–6.3(c)(3)(iii) requiring a partition between a “floor, roof, scaffold platform or other work surface or position” and a moving material hoist that comes within eight feet thereof, held inapplicable to worker injured when he was struck by descending material hoist as he was leaning out window to inspect leaks in curtain wall because no proof or expert testimony that curtain wall was a “platform” or “work surface” within meaning of regulation that should have been partitioned from path of hoist (Murphy v Broadway 48-49th Street Associates, 246 AD2d 392, 668 NYS2d 25 [1st Dept 1998]). 
Regulation § 23–6.3(d)(4) requiring that “[g]ates at hoistway entrances above the lowest terminal or grade level shall be kept closed when the car is not at such entrances,” is sufficiently specific to support a Labor Law § 241(6) cause of action, and held applicable to injuries allegedly sustained when, in the course of unloading sheetrock from the hoist that had been used to deliver the material to the 37th floor of the building under construction, the hoist suddenly dropped down the shaft, thereby causing worker to fall approximately 13 stories (Campbell v Columbus Centre LLC, 48 AD3d 323, 852 NYS2d 89 [1st Dept 2008]).
Regulation § 23–6.3(e)(3) requiring that car platforms be provided with securely fastened blocks and cleats to prevent the rolling of wheeled vehicles and shifting of other equipment, held inapplicable to accident involving freight elevator, which is not a “material hoist” (Barrios v Boston Properties, LLC, 55 AD3d 339, 866 NYS2d 99 [1st Dept 2008]).
Regulation § 23–6.3(j) providing that hoistways for material hoists shall not be located either partially or wholly over sidewalks, passageways or other areas to which persons have access unless a broken-rope safety device capable of stopping and holding the platform or bucket with its rated load is provided, held inapplicable where worker using rope rather than mechanical hoisting device to lower bucket of steel bolts (Aloi v Structure-Tone, Inc., surpa).

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