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Armental v 401 Park Ave. S. Assoc., LLC
April 2, 2020
Appellate Division, First Department
Plaintiff fell and allegedly was injured after stepping on a pile of unsecured pipes on the floor of a construction site. The trial court dismissed plaintiff’s Labor Law § 240(1) claim as against all defendants, dismissed the Labor Law § 241(6) claim based on alleged violations of Industrial Code (12 NYCRR) regulations §§ 23-1.7(e)(1), 23-1.7(e)(2), 23-2.1(a)(1), and 23-2.1(b) as against all defendants, and denied plaintiff's motion for summary judgment on the Labor Law § 200 and common-law negligence claims as against defendants United Alliance Enterprises, LLC (UA), Independent Mechanical, Intel Plumbing, and WeWork.
 Labor Law § 240(1) (DRA)
The First Department affirmed the trial court’s dismissal of the Labor Law § 240(1) claim because the statute does not cover a fall caused by stepping on a pile of pipes on the floor of a construction site (see Berg v Albany Ladder Co., Inc., 10 NY3d 902 [2008]; Lopez v City of N.Y. Tr. Auth., 21 AD3d 259 [1st Dept 2005]).
PRACTICE POINT: True, the plaintiff did fall, but falling over pieces of pipe on the floor and landing on the same floor is not the type of hazard that § 240(1) is designed to protect against.
 Labor Law § 241(6) (MAS)
The First Department affirmed dismissal of the Labor Law § 241(6) claims against Intel Plumbing and Independent Mechanical, who could not be deemed statutory agents absent evidence they “controlled the work area or had authority to insist that safety precautions be taken with regard to” the placement of the materials that allegedly caused plaintiff’s accident.
As for the UA and 401 Park defendants, the Court held plaintiff’s testimony that his fall was caused by a pile of loose pipes obstructing the doorway presents an issue of fact as to whether the accident was caused by a tripping hazard in a passageway under regulation 1.7(e)(1). The Court also found an issue of fact as to whether the accident was caused by a violation of 1.7(e)(2), since part of the floor where workers worked or passed by not kept free from scattered tools or materials.
Although the Court also found 2.1(b) insufficiently specific to support a Labor Law § 241(6) claim, it also found an issue of fact as to whether the unsecured pipes, which were allegedly piled about two feet high directly in front of the doorway, were safely stored pursuant to regulation 2.1(a)(1).
 Labor Law § 200 and Common-Law Negligence (ESB)
The First Department held the trial court improperly dismissed the Labor Law 200 and common-law negligence claims against UA, Independent Mechanical, Intel Plumbing, and WeWork. It found the cause of plaintiff's accident was not the manner in which his work was performed but a dangerous condition on the premises, i.e., the loose pipes that had been laid on the floor directly in front of a doorway. Consequently, as to UA, issues of fact existed as to whether it negligently created the hazardous condition by directing the placement of the pipes and by failing to properly coordinate work on the site. Further, as to Independent Mechanical and Intel Plumbing, there was conflicting testimony about whether the black pipes involved in the accident resembled those used by Independent Mechanical or the types of black pipes Intel Plumbing used on the site. Accordingly, there was a question of fact regarding which of those two defendants created the hazardous condition. Finally, WeWork failed to establish that it lacked actual or constructive notice of the condition.
 Indemnity Issues in Labor Law (SEP)
The issues raised by the 401 Park defendants concerning contractual indemnification and its third-party complaint are not properly before the Court, since they are unrelated to the issues raised by plaintiff, the only party who filed a notice of appeal from the order under review.
Nassar v Macy’s Inc.
April 2, 2020
Appellate Division, First Department
Macy's was the owner of the premises on which plaintiff’s accident occurred and hired Structure to act as the general contractor for an interior renovation. Structure hired nonparty Marcello to perform the floor tile installation. Plaintiff was employed by Marcello and his duties included transporting materials. His supervisor, another Marcello employee named Joe Simonetta, provided plaintiff with his instructions and directions. Marcello provided plaintiff with all his equipment, including the A-frame carts he used to transport materials. Joe told plaintiff to bring several bags of concrete into the work area. Plaintiff would normally use Marcello’s blue A-frame carts to do this work, but “[t]hey were all busy.” Instead, he used a yellow A-frame cart (the Cart). He testified that he “kn[ew] it belonged to Structure Tone because their workers would use them.”
Plaintiff noted that, while using the Cart, he had two separate, but related, accidents. His first accident occurred at approximately 12:15 a.m. Plaintiff took the empty Cart from the worksite, then traveled up a short wooden plywood ramp, turned to the right, went through the construction door and then down a 12-foot long metal ramp to the sidewalk on 35th street to the storage area. During this time, the Cart moved normally and did not appear to have any defect. Once plaintiff reached the storage area, he loaded the Cart with approximately 300 pounds of concrete. As they maneuvered the Cart up the metal ramp, plaintiff noticed that the Cart’s back right wheel was “wobbly”, and it began “shimmying sideways.” After traveling up the ramp a few feet, “the wheel got loose and jammed sideways . . . and that’s when . . . the impact happened and twisted [his] whole body with it.” With the help of two additional workers, plaintiff managed to right the Cart and bring it up the metal ramp and into the Premises.
The second accident occurred a few minutes later while plaintiff was moving the Cart down an interior ramp to the worksite itself. The interior ramp was a permanent structure used primarily by Macy’s customers as handicap access. It was not built to facilitate the Project. The ramp was long and had a switchback halfway down. Plaintiff successfully maneuvered the cart down the first part of the ramp. However, when the Cart reached the switchback the same wheel malfunctioned, causing the Cart to slam into the ramp's handrail and pin plaintiff's hand between the cart and the handrail. The trial court denied defendants’ motion for summary judgment dismissing the Labor Law § 241(6) claim predicated on Industrial Code (12 NYCRR) regulation § 23-1.22(b)(3) and the Labor Law § 200 and common-law negligence claims as against defendant Structure.
Labor Law § 241(6) (MAS)
The First Department reversed and dismissed the Labor Law § 241(6) claim as the record is devoid of evidence that defendants’ violation of regulation § 23-1.22(b)(3), if any, was a proximate cause of plaintiff’s injuries.
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department held that summary judgment properly was denied as to the Labor Law § 200 and common-law negligence claims against Structure because an issue of fact existed regarding whether Structure lent plaintiff the A-frame cart involved in his accidents. If it did, then defendants needed to demonstrate that Structure neither created nor had actual or constructive notice of the dangerous or defective condition of the cart. Having failed to make that showing, they were not entitled to summary judgment.
Baptiste v RLP-East, LLC
April 9, 2020
Appellate Division, First Department
Plaintiff was allegedly struck by a plank of wood that fell from work above and was in an area where he was exposed to falling objects. Following a jury verdict in favor of plaintiff on the issue of liability and awarding plaintiff $3,044,038, the trial court denied defendants’ motion to set aside the verdict. Defendants’ argued the trial court submitted to the jury a special verdict sheet which combined all liability claims together, making it possible that the jury found in favor of plaintiff solely on a violation of the Industrial Code, which is only some evidence of negligence whereas liability under Labor Law §§ 240(1) is a finding of negligence and liability.
Labor Law § 240(1) (DRA)
The First Department found that although it was error for the trial court to submit to the jury the special verdict sheet because the single combined questions makes it theoretically possible that the jury found in favor of plaintiff solely on a violation of the Industrial Code, the Court found the error did not require a new trial, as the evidence supported the judgment as a matter of law on plaintiff's claims pursuant to both Labor Law §§ 240(1) and 241(6) (see Greenwood v Whitney Museum of Am. Art, 161 AD3d 425, 425—426 [1st Dept 2018]).
The Court also held the trial court should not permitted plaintiff to call an accident reconstructionist to testify that his injuries were caused by the construction accident (and not the subsequent bus accident), since that witness was not a biomechanical engineer nor was there any evidence he had relevant medical training. Although defendants’ experts opined that the injuries were not traumatic, but were degenerative in nature, one of defendants’ medical experts conceded that plaintiff’s injuries could have been caused by the type of trauma described by a witness to the construction accident.
The Court found the jury’s award for future lost earnings was adequately supported by the evidence because it was based on testimony of an expert economist. The Court also found the future medical expenses adequately supported to the extent it was based on the continued need for neurological treatment and pain management. However, the Court struck that portion of the future medical expenses predicated on the need for a future spinal surgery as plaintiff’s medical expert said “off the top of his head” that the need for future surgery was “50/50.”
PRACTICE POINT: The make up of the Special Verdict Sheet in a Labor Law case is a complex endeavor, and the cases are so unique and factually driven that they generally need to be drafted from scratch. The lumping together of the various labor law claims in never a good idea. Clear and concise instruction is difficult but keeping the various allegations separate is always a good idea. The basis of §240(1) and a §241(6) claims are completely different and the availability of comparative negligence in the §241(6) claim and the fact that a violation of §241(6) is only some evidence of liability makes separation of the claims vital. The allocation of damages to different causes, only one of which would be compensable in the suit, is covered by the proximate cause charge, however only qualified experts may opine on that issue and an accident reconstruction expert has been fond not to be so qualified without specific medical training.
Labor Law § 241(6) (MAS)
The First Department held the uncontroverted evidence was that plaintiff was in an area where he was exposed to falling objects, and that the pass through opening to the floor above should have been covered at the time of his accident, but was not, in violation of regulation 23-1.7(a)(1). Defendants also failed to offer any evidence that the Industrial Code violation was not unreasonable under the circumstances; therefore, the Court held defendants failed to rebut plaintiff’s entitlement to judgment as a matter of law on his Labor Law § 241(6) claim.
Ohadi v Magnetic Constr. Group Corp.
April 16, 2020
Appellate Division, First Department
Plaintiff was allegedly injured when he slipped and fell down a staircase at a building undergoing renovation. He testified that after he fell down the stairs, the steps he could see from the bottom of the staircase were dusty, his clothes were dusty, and his jacket was wet with paint.
The trial court granted Stonehill’s motion for summary judgment dismissing the complaint and the crossclaims for common-law and contractual indemnification asserted by 1170 Broadway, denied plaintiff’s motion for summary judgment as to liability on the Labor Law § 241(6) claim insofar as predicated on Industrial Code § 23-1.7(e)(2), granted defendants’ motion for summary judgment dismissing the Labor Law § 241(6) claim based on § 23-1.7(d), denied defendant/third-party defendant H & K’s motion for summary judgment dismissing the common-law negligence and Labor Law §§ 241(6) claims and 200 as against it, denied 1170 Broadway’s motion for summary judgment dismissing the Labor Law §§ 241(6), 200, and common-law negligence claims and as against it and on its crossclaims for contractual indemnity against defendant/third-party defendant Cassway, and for common-law and contractual indemnity against Stonehill & Taylor and defendant/third-party plaintiff Magnetic, and denied Magnetic’s motion for summary judgment dismissing the Labor Law §§ 241(6), 200, common-law negligence and claims and all crossclaims against it based on its crossclaims for common-law indemnification against defendant/third-party defendant A & G and for common-law and contractual indemnification against H & K.
Labor Law § 241(6) (MAS)
Insofar as Magnetic was delegated authority for the injury-producing work, retained subcontractors to perform the injury-producing work, and was responsible for clean-up at the site, the First Department held it may be held liable under Labor Law § 241(6) as a statutory agent. The Court also found regulation 23-1.7(d) applicable to plaintiff’s accident if the staircase was a work area and there is an issue of fact as to whether the staircase on which plaintiff fell was a work area, regardless of whether the work was being performed there at the exact moment of his accident.
The Court also held Industrial Code regulation 23-1.7(e)(2) may serve as a predicate for plaintiff’s Labor Law § 241(6) claim because it applies to slipping as well as tripping hazards. However, plaintiff was not entitled to summary judgment based on that regulation because the Court found an issue of fact as to whether he slipped on dirt or debris that had accumulated on the stairs in violation of that regulation.
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department held that the motion court correctly refused to dismiss the Labor Law § 200 and common-law negligence claims against 1170 Broadway and Magnetic; finding those defendants failed to demonstrate they lacked constructive notice of the dangerous condition that allegedly caused plaintiff’s injury because they could not offer evidence as to the last time the stairway was cleaned or inspected before the accident.
With regard to H&K, the Court held the § 200 and common-law negligence claims should have been dismissed, as the undisputed evidence demonstrated that H & K completed its work in the stairway over two months before plaintiff’s accident, and Magnetic never received any complaints about the condition of the stairs. Therefore, H & K could not have been responsible for any of the work that caused plaintiff's accident, and it had no duty to inspect or otherwise keep the premises clean. Finally, the Court also affirmed dismissal of the Labor Law § 200 and common-law negligence claims against Stonehill & Taylor, as it acted solely as a design professional.
Lyons v New York City Economic Dev. Corp.
April 23, 2020
Appellate Division, First Department
Plaintiff fell and was injured on a mesh walkway. At the time defendants filed their motion for summary judgment, no depositions had taken place. The record does not show the parties exchanged any paper discovery, such as records concerning the installation, maintenance, or repair of the mesh walkway on which plaintiff fell. Somehow, the trial court granted defendants’ motion for summary judgment dismissing plaintiffs’ Labor Law § 200 and common-law negligence claims but denied defendants’ motion for summary judgment to dismiss Labor Law § 241(6) claim.
Labor Law § 241(6) (MAS)
The First Department unanimously modified the trial court’s decision to deny defendants’ motion in its entirety as premature because plaintiffs met their burden of demonstrating that facts essential to justify opposition to the motion may lie within defendants’ exclusive knowledge or control, and defendants’ motion should have been denied with leave to renew upon the completion of discovery.
Diaz v Raveh Realty, LLC
April 30, 2020
Appellate Division, First Department
Plaintiff, a carpenter, was allegedly injured when he was hit by a heavy 4’ x 8’ plywood form that fell or was dropped by co-workers who were stripping plywood forms from the cured concrete-poured ceiling. Plaintiff had been instructed to remove plywood form debris from the floor near where co-workers were working on ladders stripping the plywood forms from the ceiling. Defendants’ project overseer acknowledged that such plywood forms would be secured by a rope when being removed from near the building’s edge, and plaintiff’s expert opined that safety devices were required due to the risk that the formwork would fall. At the time of the accident, plaintiff was looking down to clear the debris, so that it is unclear whether he was hit by a dislodged plywood form that a co-worker dropped or tossed, or was hit by a loosened plywood form that simply fell from the ceiling. The trial court denied plaintiff’s motion for summary judgment on his Labor Law §§ 240(1) and 241(6) claims against Raveh Realty.
Labor Law § 240(1) (DRA)
The First Department unanimously modified the trial court’s order with respect to the § 240(1) claim; finding that the type of work being performed involved a load that required securing and, because plaintiff’s injury was the foreseeable consequence of the risk of performing the task without any safety device of the kind enumerated in the statute, he was entitled to partial summary judgment. Raveh’s evidence in opposition to the motion failed to raise triable issues as to the claim.
PRACTICE POINT: Here the plaintiff was struck by a falling object. I only question, was is it the type of object that required securing for the task? The court found it was. The object in this case was either dropped or fell and struck the plaintiff causing injury. The defendant during a deposition acknowledged that the form should have been secured.
Morera v New York City Tr. Auth.
April 30, 2020
Appellate Division, First Department
Plaintiff was about 15-to-17 feet above ground on a 24-foot ladder cleaning the windows inside a building owned and managed by defendants, when a ceiling tile suddenly fell and struck him, causing the ladder to tip backward away from the wall against which it had been leaning. Although the ladder fell against the opposite wall, plaintiff fell off the ladder and was thrown to the ground below. When the accident occurred, the ladder was being held steady at the bottom by a coworker but was otherwise unsecured. The trial court denied plaintiff’s motion for summary judgment on the Labor Law § 240(1) claim.
Labor Law § 240(1) (DRA)
The First Department affirmed; finding the trial court properly denied plaintiff's motion as there are issues of fact as to whether the falling ceiling tile was an intervening superseding cause of the accident. The Court also found that, in view of plaintiff's testimony that the ladder was not defective, issues of fact also exist as to whether defendant failed to provide proper protection, and whether plaintiff’s fall was proximately caused by the statutory violation or by the falling ceiling tile (see Nazario v 222 Broadway, LLC, 28 NY3d 1054 [2016].
PRACTICE POINT: Strange case. The plaintiff did not try a falling object claim, which would have failed in any even as the falling ceiling tile was not an object ether being lifted or in need of securing for the job. As to the plaintiff falling there are questions of fact as to cause of the fall, either the ceiling tile of inadequate safety device, the ladder. Only a jury may determine such a question of fact.
Islam v HPENY Hous. Dev. Fund Co., Inc.
April 29, 2020
Appellate Division, Second Department
On February 13, 2015, plaintiff commenced this action for injuries he allegedly sustained while working on premises owned and maintained by defendants ENY Development and HPENY Housing Development Fund which served separate answers, respectively, in or about April and June 2015. In May 2016, plaintiff served and filed a supplemental summons and amended complaint adding as additional defendants BRP Construction and Notias. Each of those defendants served answers to the amended complaint in or about July 2016. In January 2018, Notias served a 90-day demand on plaintiff to resume prosecution, and in February 2018, HPENY Housing Development Fund also served a 90-day demand, as did ENY Development and BRP Construction. When plaintiff failed to comply, the defendants thereafter separately moved pursuant to CPLR § 3216 to dismiss the complaint. The trial court granted the defendants’ separate motions.
Labor Law § 240(1) (DRA)
The Second Department unanimously affirmed; finding that although the trial court has the discretion to accept law office failure as a justifiable excuse (see CPLR 2005), a conclusory, undetailed, and unsubstantiated claim of law office failure does not amount to a justifiable excuse. Here, plaintiff failed to file a note of issue as directed by the court and, in effect, took no action for more than a year from the time that he provided court-ordered discovery in May 2017, until he opposed defendants’ motions. The conclusory and uncorroborated assertion by plaintiff’s counsel as to why plaintiff failed to file a note of issue or take any action whatsoever until after the 90-day period had expired did not constitute a detailed and credible explanation.
Since plaintiff failed to provide a justifiable excuse, the Court found no need to address whether plaintiff established the existence of a potentially meritorious cause of action.
PRACTICE POINT: Do not ignore a case, it will not get better by itself. Simple practice point, but valuable.
Markou v Sano-Rubin Constr. Co., Inc.
April 2, 2020
Appellate Division, Third Department
Plaintiff, a licensed electrical contractor and the sole owner of Markou & Sons, was performing electrical work at premises owned by defendant. The work required plaintiff to climb a ladder from which he subsequently fell and allegedly was injured. He had been hired to troubleshoot and repair a nonfunctioning overhead lighting system. Prior to hiring plaintiff to determine the cause of the problem, defendant’s shop supervisor checked basic electrical issues and confirmed the cause of the problem was not the light bulbs, the light switch or the circuit breaker. Plaintiff climbed an extension ladder, and as he reached the height of the fixture, the ladder abruptly slid along the wall to the right and, just before reaching the end of the wall and to avoid hitting his head on the ground when the ladder fell, plaintiff jumped off and landed on his feet. Thereafter, defendant’s director of safety prepared an incident report stating plaintiff was on the premises “[w]orking on electrical repairs in the yard area.” The report further stated that, at the time of the incident, plaintiff was “[r]epairing an electrical circuit.” The trial court denied plaintiffs motion for summary judgment under Labor Law § 240 (1) and denied defendant’s cross-moved to dismiss that claim.
Labor Law § 240(1) (DRA)
The Third Department reversed; finding that plaintiffs made a prima facie showing of entitlement to summary judgment on their Labor Law § 240 (1) claim and defendant presented no evidence that the extension ladder was adequate or properly placed or that plaintiff’s actions were the sole proximate cause of his accident. Defendant’s expert merely alleged that plaintiff’s use of a ladder rather than a bucket truck, his placement of the ladder and his failure to have another individual hold the ladder established that his conduct was the sole proximate cause of the accident. However, given that plaintiff established that the ladder from which he fell did not provide adequate protection to him, and that this violation of the statute caused him to fall and sustain injuries, the Court held that his own actions could not be the sole proximate cause of his fall.
PRACTICE POINT: When the defendant has an expert to support a sole proximate cause defense the key is that the expert needs to opine that he safety device supplied to the plaintiff was appropriate for the task and that the plaintiff misused or failed to use it. Here the opinion was not supportive of a valid defense.
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