Labor Law Pointers - Volume IX, No. 5


Labor Law Pointers

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

Volume IX, No. 5
Wednesday, April 1, 2020


From the Editor:

This month, the question is not do you have a situation; we all have a situation.  The world has a situation.  We all need to help with each other’s situation in any way we can. 
I have shamelessly borrowed, stolen or copied Dan Kohane’s opening line for my newsletter for over nine years.  I wondered at first when he used it to open his newsletter, Coverage Pointers, if he really got calls all with the same opening line.  When, as Labor Law Pointers became more popular, and I too started getting the phone calls, they all started the same way: “Hey David, I have a situation here, what do you think, can you help?”  We will always do our best to help in any situation.   
Well now we all have a situation.  We are here to help.  I can’t help cure the sick, I can’t help you get food if you are not near me (I will help, however, if you are close by), I can’t help with a great many things we all need help with, but we are here to help you in any way we can.  
We are all trying to move our cases, your claims, forward.  We are here to help devise a plan on each case to move it forward as quickly and economically as possible under these extraordinary circumstances.  We can set up video depositions where appropriate.  We can set up video mediation in cases ready for that step.  We can go through documents for discovery responses while court appearances are being adjourned so we are ready for the next step, whether it is motions, mediation or further discovery.  In short, we can help move files ahead toward resolution.
Just today, I got a call to assist in a fatality investigation on an accident that occurred this morning.  We will need to do the interviews via Zoom or another video connection, but we will have an attorney lead investigation moving forward today. 
We are all working from home and, as we shifted to a paperless office several years ago, we are operating at very close to full capacity remotely from home.  Ok, sharing the basement with a 14-year-old and his Xbox is less than completely ideal; he does go upstairs while I am doing remote depos and mediations and with his headphones on I only know he is there when a goal is scored and he shouts in either joy or despair.  I have learned that many more goals are scored in NHL 2019 then in FIFA.  I have also learned that his language is more colorful with his friends than I was aware, despite coaching his hockey team.  This is a time of family bonding.
Over the past month or so, our very own Chris Potenza turned a perfect double play, winning a Labor Law trial on the homeowner exemption in Ithaca, NY, on a mixed use structure and winning a summary judgment motion in Erie County where a plaintiff was injured when falling caustic liquid struck him, causing injury. The court ruled that it was not the type of accident the statute was designed to offer protection from. 
On to our photos of the month.  Here we have a soon to be plaintiff, a former circus performer, who, in return for a reduction on his rent, has agreed to stain the ceiling in the rear half of the home he rents from his landlord and cousin who lives in the front half of the home he owns.  He gives the tenant two ladders and just says to let him know when the job is done.  As the plaintiff is staining away there, the cousin backs his truck out of the garage and strikes the house, causing the very carefully balanced ladder provided by the landlord to shift and the plaintiff to fall to the floor sustaining injury.  Is there a § 240(1) claim available here?

Let’s start with the parties. The plaintiff is not being paid for his work, so is he a person so employed?  Well the reduction in rent does count so we have a valid plaintiff.  The cousin is the owner of the home and thus a valid defendant.  The task, staining the ceiling, is a covered activity as staining is considered the same as painting and thus an enumerated activity under the statute.  He did fall from a height, so the injury was gravity related.  The ladder was provided by the defendant and despite the incredibly ridiculous way it was set up, there seems to be no proof that the plaintiff was directed to use a different ladder, so once again in the Labor Law, common sense must be discarded.  Sounds good for the plaintiff so far but what about the homeowner exception?   Where the owner of a one or two family home does not direct the means and method of the work, they are not valid defendants in a § 240(1) case.  Here, simply providing the ladder and not telling the plaintiff how to do the job is not enough to qualify a supervising, directing or controlling of the plaintiff’s work and the defendant will get the protection of the homeowner’s exemption.  I bet some of you are wondering about the bumping the house issue.  Well it is not likely that it will even qualify as negligence as when bumping a house with your car, it is not foreseeable in my mind that some idiot would balance a ladder on two rafters to stain a ceiling. 
Next we have a leaking roof on a warehouse.  The owner called a roofing company to fix a hole caused by a falling branch.  As an employee of the roofing company tries to get to the location of the hole, his carefully balanced but not OSHA-approved ladder extension fails, causing him to slip down the roof several feet.  He is able to arrest his slide, but only at the expense of an injured shoulder from grabbing a joint in the roof.  He does not, however, fall from the roof.  Plaintiff had seen the hole in the roof from the ground and called in to the office asking for a lift to reach the hole and was told that the lift would be there in an hour.  As the rain increased, the plaintiff determined that he really needed to fix the hole immediately as the customer’s valuable firework inventory was getting soaked and ruined.  Does the plaintiff have a § 240(1) claim?

The plaintiff is a person so employed and thus a valid plaintiff.  The defendant will be the property owner, owner of a commercial building, and thus a valid defendant.  The plaintiff was doing repair work and thus the project qualifies.  The safety device he was using, the makeshift extension ladder, failed, providing the plaintiff with a prima facie case for § 240(1).  The plaintiff did not actually fall: however, the injury was caused in his efforts to avoid falling and thus the injury was gravity related and plaintiff has a valid § 240(1) claim.  The sole proximate cause defense here is the issue.  Let’s recall the 5 elements of a successful defense.  The plaintiff must have 1) an appropriate safety device which is 2) available for his use which he 3) was instructed to use or knew he was required to use which he 4) failed to use or misused 5) for no good reason.  Here the plaintiff did not have an appropriate safety device.  The issue will turn on whether or not the plaintiff had a good reason to proceed without using the potentially available and in the process of being provided.  The lack of a safety device and the instruction, such as it was, to wait for the appropriate device may bring into consideration the Recalcitrant Worker defense, a subset of the sole proximate cause defense.  Like the sole proximate cause defense, there needs to be an available safety device and direct instruction not to do the work without it.  This one would likely be left up to a jury in my estimation.
Here we have a plaintiff hanging sheet rock on a new build.  The home is owned by the builder and transfer of ownership occurs only when the COA is issued.  Plaintiff works for the builder and is an experienced dry wall installer used to working on stilts.  His adjustable stilts are at their maximum height but he just could not reach the ceiling so he stepped up onto a bucket or two to get the extra height needed, even though there was a perfect ladder only 10 feet away.  He had been told many times not to do this, has signed the safety sheet after training on exactly the issue of never stepping up on anything while on stilts, and had in fact run safety meetings where he trained other workers not to but he had seen his boss, the owner of the company, do the exact same thing the day before when his stilts were not long enough.  One of the buckets tips over and the plaintiff is injured.  § 240(1) case?

Plaintiff is a person so employed so a valid plaintiff.  The defendant is the owner of the building so a valid defendant.  The plaintiff is engaged in construction so an enumerated project.  Plaintiff falls from a height, so gravity related.  The sole proximate cause defense will fail.  While the plaintiff was told not to step up on a bucket and there was a perfect and appropriate safety device available to the plaintiff, which he had clearly been told to use, his experience seeing his boss use the buckets will eliminate the sole proximate cause defense.  The main issue here is that the plaintiff can’t sue the owner because the owner is his employer and his recourse per section 11 of the Workers Comp law is to collect comp.  If the employer does not have comp, then the plaintiff will have a valid claim.
Plaintiff here is installing new lights in an office being refurbished.  His employer has a contract with the building owner and is doing the work making the office rentable after many years.  The ladder provided by the plaintiff’s employer is not tall enough and no other ladders are available from the work truck.  Plaintiff finds a ladder in the back and, as any worker with a history of watching McGyver as a boy would want to do, he improvises.  He is careful while doing so and ties the ladders together to prevent any slipping, tipping or shifting.  As the plaintiff installs a light, he falls to the ground and is injured.  When asked at the scene what happened by the ambulance crew, he says that he lost his balance and fell.  He does not mention that the ladder moved in any way, just that he lost his balance.  At his deposition, the plaintiff for the first time testifies that the ladder shifted, causing him to lose his balance and fall from the ladder.  § 240(1) case?

We have a proper plaintiff; he was so employed.  We have a proper defendant, the building owner.  We have an enumerated project, construction.  We have an injury caused by the effects of gravity.  Clearly, a prima facie case of § 240(1).  What about a defense that the safety device did not cause the fall?  The plaintiff said, at the time of the accident, that he lost his balance and fell.  There must be a question of fact at the least, as the plaintiff has told two different versions of the accident and one of them does not involve a safety device being inadequate as it did not move, and the plaintiff simply lost his balance.  Let me tell you that this defense will not work.  The plaintiff was not specifically asked during the preliminary investigation what caused him to fall.  The ambulance crew is not trained to ask questions about how an accident occurs and a statement to them about how it happened may not be admissible in any event.  Further, the deposition testimony is not such that it is completely incompatible with the prior statement.  The ladder could have caused the plaintiff to lose his balance and fall.  With these facts, the plaintiff will get summary judgment on § 240(1).
Here, I have added two videos for your enjoyment, linked right on our website. If you can't play them, just let me know and I will send them separately.  In the first, a young apprentice on this new construction job is tasked with lifting materials to the roof with a bucket.  He does not want to take the time to climb the ladder just out of the camera’s view (which is in perfect condition and secured top and bottom) as instructed to get to the roof to unload the materials so he devises his own method and is hurt. § 240(1) case?

Video 1:  /content/Bucket%20video.mp4
No, he was instructed to use the ladder and there is no good reason for the plaintiff not to use the appropriate and available safety device.  Great video though.
Here, we have a situation on a new build commercial building where workers are stripping forms and one falls, causing the plaintiff to hang from re-bar, injuring his arm until he is able to swing onto the floor below.  § 240(1) case?
Video 2:  /content/Form%20Falls%20Off.mp4

Absolutely.  Falling object that the plaintiff was able to avoid; it should have been secured and it caused injury.  The plaintiff is lucky to be alive. 

Lastly, Marc Schulz, the king of § 241(6) has done an analysis of the applicability of that statute to COVID-19 virus exposure on the work site. 
Respirators. It is a word we hear a lot these days. Can Industrial Code regulation § 23-1.8(b), entitled “Respirators” support a Labor Law § 241(6) claim stemming from COVID-19 (coronavirus)? Regulation 1.8(b) states: “(1) General. Where this Part (rule) requires a respirator to be provided, the employer shall furnish and the employee shall use an approved respirator. Such respirator shall be approved for the type of operation for which it is to be used and for the particular air contaminant present. The employer shall maintain such respirator in good repair and shall furnish the means for its continued proper working condition. The employer shall provide daily inspection and cleaning and weekly disinfecting of such respirators. Respirators shall be disinfected before being transferred from one person to another. When not in use, respirators shall be stored in closed containers.”
Although we were unable to find any case declaring regulation 1.8(b)(1) sufficiently specific, we would argue it is merely a general provision (as indicated by its title) with no concrete requirements. Guidance from other regulations supports this conclusion. Regulation § 12-1.4(a) requires air contaminants be kept at the lowest practicable level, and 1.4(b)(1) and (b)(2), which requires employers to comply with rules regarding contaminants and to give employee safety instructions, are not specific to support a § 241(6) claim (Piazza v Frank L. Ciminelli Const. Co., Inc., 2 AD3d 1345, 770 NYS2d 504 [4th Dept 2003]). Regulation § 12-1.5(a)(1), which limits the use of personal respiratory protective equipment, and (a)(2), requiring use of board-approved personal respiratory protective equipment, are also not sufficiently specific to support a § 241(6) cause of action (Piazza v Frank L. Ciminelli Const. Co., supra).
If you are looking for ways to prepare your workplaces for COVID-19, the OSHA website has posted a guide to help prevent exposure:

I hope that this edition finds you, your family, your friends and your co-workers safe and well. Before this is over, I fear we will all be touched by this pandemic.  Remember that together we can overcome any obstacle and that we are always here to help in any way we can. 
Stay safe.  

Don’t forget to subscribe to our other publications:

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

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

Products Liability 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 R. Adams
Hurwitz & Fine, P.C.
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Suite 1300 Liberty Building
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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.


Leveron v Prana Growth Fund I, L.P.

March 10, 2020

Appellate Division, First Department

Plaintiff, an employee of non-party sidewalk shed contractor J & G Construction, allegedly was injured when three or four sections of a sidewalk shed that he was dismantling collapsed onto him. The sidewalk shed was erected for facade repair work performed by A-Awan Construction. The trial court denied the Prana defendants’ summary judgment motion seeking dismissal of the complaint and all crossclaims, and on their contractual indemnification and contribution crossclaims against A-Awan Construction. The trial court also denied plaintiff's cross-motion for partial summary judgment on the Labor Law §§ 240(1) and 241(6) claims.
Labor Law § 240(1) (DRA)
The First Department unanimously modified the order to grant plaintiff’s cross-motion on the Labor Law § 240(1) claim; finding the collapse of the sidewalk shed is prima facie evidence of a violation of the statute. In opposition, the Court held defendants failed to raise a triable issue of fact. Plaintiff's inability to identify the specific piece of the sidewalk shed that struck him was not fatal to his claim, as he is not required to establish the exact manner in which the accident occurred (see Ortega v City of New York, 95 AD3d 125, 128 [1st Dept 2012]). Moreover, securing the sidewalk shed against collapse would not have been contrary to the purpose of the undertaking. The three or four sections that collapsed onto plaintiff when “everything slipped apart” were not the intended target of the demolition at the time of the accident.
PRACTICE POINT:  These cases where it is the structure being dismantled or demolished that falls on the plaintiff are very factually driven.  The issue is simply should the section of the structure which struck the plaintiff have been secured.  That goes directly to the question of would securing the section that struck the plaintiff been at odds to the task being performed.  In other words, is securing the section that struck the plaintiff going to interfere with the dismantling or demolishing of the structure being undertaken at that exact minute.  As the only witness to such a falling object injury is usually the plaintiff, we come back to the need for immediate and careful investigation of the accident such that we have a documented description of exactly how the accident occurred as close in time to the actual accident as possible.
Labor Law § 241(6) (MAS)
In support of his Labor Law § 241(6) claim, plaintiff relied on violations of Industrial Code (12 NYCRR) regulations §§ 23-1.7(a), 3.3(c), as well as 3.3(g) and (k). On appeal, plaintiff abandoned his arguments under three of those provisions. As for 3.3(c), although he belatedly identified 3.3(c) in his cross-motion, dismissal was not required because it entailed no new factual allegations, raised no new theories of liability, and caused no prejudice to defendants (see Alacorn v UCAN White Plains Hous. Dev. Fund Corp., 100 AD3d 431, 432 [1st Dept 2012]; Burton v CF Equities, LLC, 97 AD3d 462, 462-463 [1st Dept 2012]).
However, the Court held plaintiff failed to demonstrate his entitlement to summary judgment under this remaining provision, which requires “continuing inspections” during “hand demolition operations” to protect against hazards “resulting from weakened or deteriorated floors or walls or from loosened material.” Issues of fact exist as to whether defendants violated 3.3(c) and if so, whether any such violation was a proximate cause of the accident.
The Court rejected plaintiff’s argument that 3.3(b)(3) was violated because it was raised for the first time on appeal, is fact-based, and thus is not properly before the Court (Nadella v City of New York, 161 AD3d 412, 413 [1st Dept 2018]).
Labor Law § 200 and Common-Law Negligence (ESB)
With regard to Labor Law § 200 and common-law negligence, the court held that plaintiff abandoned those claims by failing to oppose the Prana defendants’ motion for dismissal of those claims.  However, those defendants met their burden of proof because the evidence established that plaintiff’s accident resulted from the means and methods of his work, which was directed and controlled solely by his employer.

Rodriguez v BSREP UA Heritage LLC
March 26, 2020
Appellate Division, First Department

Plaintiff was working on a 10-foot ladder (a segment of a larger extension ladder) that suddenly slipped and tipped over, causing plaintiff to fall to the ground. Plaintiff had seen other workers earlier that day using the same ladder, which had been set up by another worker. The trial court denied defendant’s cross-motion for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims, granted plaintiffs’ motion for partial summary judgment on the Labor Law § 240(1) claim, and upon a search of the record, granted plaintiff partial summary judgment on the Labor Law § 241(6) claim based on alleged violations of Industrial Code regulation 1.21.
Labor Law § 240(1) (DRA)
The First Department unanimously affirmed; finding plaintiff made a prima facie showing that his injuries were proximately caused by a violation of Labor Law § 240(1) through his testimony, corroborated by a coworker who witnessed the accident. Plaintiff was not required to show that the ladder was defective. In opposition, the Court held defendant failed to raise an issue of fact as to whether plaintiff's conduct was the sole proximate cause of his injuries because plaintiff’s failure to secure the ladder was at most, comparative negligence.
PRACTICE POINT:  Plaintiff's failure to ask his coworkers to hold the ladder while he worked also did not constitute the sole proximate cause of the accident, since a coworker is not a safety device contemplated by the statute” (Noor v City of New York, 130 AD3d 536, 541 [1st Dept 2015].  In addition, the sole proximate cause defense is not available where, as here, the ladder was set up by a different worker and thus the plaintiff could not be the SOLE proximate cause of the accident if the manner in which it was set up or the selection of the ladder was to be considered the sole proximate cause of the injury producing accident.
Labor Law § 241(6) (MAS)
Since the First Department affirmed the trial court’s decision on the § 240(1) claim, the Court declined to address the remaining issues raised on appeal (Fanning v Rockefeller Univ, 106 AD3d 484 [1st Dept 2013]).

McIntosh v Ronit Realty, LLC
March 4, 2020
Appellate Division, Second Department

In February 2014, plaintiff allegedly was injured when he slipped on an ice condition on the floor of an empty warehouse. On the date of the incident, he was sent to the premises by his employer to assist in the removal of an oil tank from the premises. He had not commenced his work activities at the time the accident occurred. Ronit, was the owner of the premises. In March 2014, plaintiff commenced this action against Ronit, asserting one cause of action for common-law negligence. In February 2017, plaintiff moved for leave to amend the complaint to add claim alleging violations of Labor Law §§ 200 and 241(6). The trial court denied plaintiff's motion.

Labor Law § 241(6) (MAS)
The Second Department affirmed; finding the trial court properly exercised its discretion in denying plaintiff’s motion because his proposed amendment was patently devoid of merit. He was also aware of the facts upon which the motion was predicated from the inception of the litigation and failed to provide a reasonable excuse for his delay in moving for leave to amend.

Xiaoen Xie v Park Place Estate, LLC
March 4, 2020
Appellate Division, Second Department

Plaintiff allegedly was injured while working at a construction site in Queens. On the day of the accident, corrugated steel decking, Q-decking, was being installed on the ground level of the building. Half of the ground floor was covered with Q-decking, but the panels had not yet been permanently attached to the underlying steel cross beams. Plaintiff was walking across the Q-decking, intending to bring a gas-cutter torch to a coworker who was standing on scaffolding located beyond the area where the Q-decking had been installed. When plaintiff was 2 feet from the edge of the Q-decking, a panel gave way, causing him to fall 10 feet into the open basement of the building.
The trial court granted plaintiff’s motion for summary judgment on the Labor Law § 240(1) claim, and upon the decision, made after a non-jury trial on the issue of damages, was in favor of plaintiff and against defendant in the principal sum of $371,000. The judgment, insofar as cross-appealed from, awarded plaintiff damages in the amount of $75,000 for past pain and suffering and $250,000 for future pain and suffering, and failed to award future loss of earnings and past medical expenses.
Labor Law § 240(1) (DRA) 
The Second Department affirmed the trial court’s decision to grant plaintiff summary judgment but modified the judgment to award past pain and suffering of $400,000 and awarded past medical expenses in the sum of $68,801.79, which was the amount stipulated to by the parties and which should have been enforced by the trial court.

PRACTICE POINT:  Where there has been a finding of liability and an award for pain and suffering it seems hard to imagine that the court, remember that this is a non-jury trial, did not find any past medical, in spite of the parties’ stipulation to the amount.  The real take away here is the ability of the court to increase the past pain and suffering providing a specific amount due to the trial being a bench trial as opposed to remitting to the trial court.   

1415, LLC v New York Mar. & Gen. Ins. Co.
March 11, 2020
Appellate Division, Second Department

Plaintiff contracted with defendant to perform renovations on a residential building. As part of the agreement, Park Developers named plaintiff as an additional insured on a liability policy with the defendant. In January 2014, one of Park Developers’ employees commenced a personal injury action against plaintiff, alleging violations of the Labor Law. Plaintiff answered the complaint in the personal injury action and sought defense and indemnification from defendant, who failed to respond to multiple requests. In February 2015, plaintiff commenced a third-party action to the personal injury action, seeking indemnification from Park Developers. Defendant provided counsel to Park Developers in the third-party action beginning on July 14, 2015.

Defendant disclaimed coverage to plaintiff in the personal injury action on April 6, 2016, on the ground that plaintiff violated conditions to coverage. Plaintiff then commenced this action seeking a judgment declaring that defendant is obligated to defend and indemnify it in the personal injury action.  During discovery, defendant objected to disclosure of its claim notes created after July 14, 2015, asserting that the notes were protected from disclosure based on the attorney-client privilege and as material prepared for litigation against plaintiff in the third-party action. Plaintiff moved, pursuant to CPLR § 3126, to strike defendant’s answer for failure to comply with discovery demands. Defendant cross-moved, pursuant to CPLR § 3103, for a protective order with respect to the withheld material. After conducting an in-camera review of the withheld material, the trial court denied the motion and granted the cross-motion for a protective order.

Indemnity Issues in Labor Law (SEP)
The Second Department affirmed; finding the withheld material was protected by the attorney-client privilege and was materials prepared in anticipation of litigation. Although the material plaintiff seeks from defendant was prepare prior to the determination to reject plaintiff’s claim for defense and indemnity in the personal injury action, defendant demonstrated that the withheld material should not be disclosed because it consists of communications with the attorney representing Park Developers in the third-party action and other information relating to the defenses of the third-party action.

Phillips v Burgio & Campofelice, Inc.
March 13, 2020
Appellate Division, Fourth Department

Plaintiff was allegedly injured while working for a subcontractor on a demolition project at property owned by the State. Defendant was the general contractor on the project. Plaintiff sued the State in the Court of Claims and commenced this action against defendant. In each action, plaintiff asserted claims for Labor Law §§ 240(1), 241(6), 200 and common-law negligence. Since the notice of intention to file a claim in the State action was indisputably untimely, plaintiff filed an application seeking permission to file a late claim against the State. The Court of Claims denied that application, determining that plaintiff “failed to demonstrate the merit” of Labor Law § 240(1), § 241(6) predicated on a violation of Industrial Code regulation 3.3 (b)(3), and the negligence claims based on an allegation of a dangerous or defective condition on the premises. 

Relying on the decision of the Court of Claims, the trial court granted defendant’s seeking leave to amend its answer to assert the affirmative defenses of res judicata and collateral estoppel, and seeking summary judgment dismissing the Labor Law §§ 240 (1) and 241 (6) claims, and precluding plaintiff from contending that a dangerous or defective condition existed on the premises at the time of his accident. Following entry of the court's order granting defendant's motion, the Fourth Department modified the decision of the Court of Claims by granting plaintiff's application insofar as it sought permission to file a late claim asserting § 240 (1) as that proposed claim appeared to have merit.

Labor Law § 240(1) (DRA)
The Fourth Department reversed the trial court; finding that it is well established that “a vacated judgment has no preclusive force either as a matter of collateral or direct estoppel or as a matter of the law of the case” (Micro-Link, LLC v Town of Amherst, 155 AD3d 1638, 1640 [4th Dept 2017]). Inasmuch as the basis upon which the trial court relied in granting the motion regarding Labor Law § 240 (1) “no longer exists [, and] . . . its order [to that extent] must be reversed.”
PRACTICE POINT:  Once the Appellate Division had modified the prior order of the Court of Claims and allowed late Notice of Claim for the §240(1) claim that portion of the claim was available to the plaintiff.
Labor Law § 241(6) (MAS)
The Fourth Department rejected plaintiff’s contention that he is not precluded from litigating issues that were “actually litigated and resolved” by the Court of Claims because he lacked a full and fair opportunity to litigate those issues. Plaintiff knew of the importance of his claims in the federal lawsuit, had incentive and initiative to argue the merits of those claims in the context of his application for leave to file a late claim, and was represented by competent counsel.
The Court thus affirmed the trial court’s decision to dismiss this claim predicated upon an alleged violation of regulation 3.3(b)(3) and seeking to preclude plaintiff from contending that there was a dangerous or defective condition on the premises. However, the Court held plaintiff was not precluded from asserting claims against defendant that were not raised in the Court of Claims action because defendant was neither a party to the earlier action nor in privity with one since the interests of defendant (general contractor) conflict with the interests of the State (owner). Thus, the trial court’s decision was modified by denying the motion except as to regulation 3.3(b)(3).
PRACTICE POINT: The key here is the doctrine of claim preclusion, which was misapplied by the trial court to prevent plaintiff from litigating claims or issues that were not raised in the Court of Claims action. Remember, a party seeking to invoke claim preclusion “must show: (1) a final judgment on the merits, (2) identity or privity of parties, and (3) identity of claims in the two actions” (Paramount Pictures Corp. v Allianz Risk Transfer AG, 31 NY3d 64, 72 [2018]).

Nalbone v Vanderbilt Props., Inc.
March 20, 2020
Appellate Division, Fourth Department

Plaintiff allegedly was struck in the back by a concrete chute which was attached to the concrete mixer owned by Third-Party Defendant, United and operated by United’s driver. Only the driver could have operated controls to lower the chute. The trial court denied plaintiff’s cross motion for partial summary judgment on their Labor Law § 240(1) claim and granted those parts of the respective motion and cross-motion of defendants-third-party plaintiffs and of third-party defendant CMC Concrete (collectively, defendants) for summary judgment dismissing the §§  240(1) and 241(6) claims.  
Labor Law § 240(1) (DRA)
The Fourth Department unanimously affirmed; finding the trial court properly concluded § 240(1) is inapplicable to this case because plaintiff was not injured as a result of an elevation-related risk (see Desharnais v Jefferson Concrete Co., Inc., 35 AD3d 1059, 1060 [3d Dept 2006]; see generally Blake v Neighborhood Hous. Serv. of N.Y. City, 1 NY3d 280., 288 [2003]).
PRACTICE POINT:  The simple fact that the t was struck by the chute does not make it a falling object in need of securing.  The chute was being repositioned, it was not falling in any way and thus it was not a gravity related risk.
Labor Law § 241(6) (MAS)
The Fourth Department also affirmed the dismissal of the Labor Law § 241(6) claim because defendants demonstrated that Industrial Code regulations 1.7(a)(1), 9.3(d) and (e), and 9.7(d) are all inapplicable to the facts of this case.


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

Regulation § 1.21(b)(4)(i), which requires portable ladders regularly used as access between floors or levels be nailed or otherwise securely fastened, is sufficiently specific to support a Labor Law § 241(6) cause of action.

Kinsler v Lu-Four Associates, 215 AD2d 631, 628 NYS2d 303 (2d Dept 1995);
Amantia v Barden & Robeson Corp., 38 AD3d 1167, 833 NYS2d 784 (4th Dept 2007);
Arigo v Spencer, 39 AD3d 1143, 834 NYS2d 805 (4th Dept 2007);
Egan v Monadnock Const., Inc., 43 AD3d 692, 841 NYS2d 547 (1st Dept 2007);
Artoglou v Gene Scappy Realty Corp., 57 AD3d 460, 869 NYS2d 172 (2d Dept 2008).

Kinsler held reg provides a basis of liability for π, who was injured when an unsecure ladder slipped.

Amantia held reg did not apply where a form the worker used to assist him to climb down from the truck’s cargo floor not used as a regular means of access b/w floors or levels of a building.

Argio held reg inapplicable where the ladder was used to climb from the porch roof to the building’s 2nd story roof.

Egan found the reg did not apply where a worker used the A-frame ladder as a makeshift means of descending to a basement.

Artoglou held reg inapplicable where π used a ladder to gain access to the roof in order to perform his work.



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