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Labor Law Pointers - Volume IX, No. 6

 
 

Labor Law Pointers

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

Volume IX, No. 6
Wednesday, May 6, 2020

 

From the Editor:

How well are you coping with this current global situation?  We are here to help in any way we can.  If the best I can do is provide 5 minutes of distraction, so be it. If we can do more, please reach out, if only to tell tales of unbelievable Labor Law cases, one of my favorite pastimes.
 
We have some exciting news from Hurwitz & Fine this month.  Ann Evanko is stepping down as our managing member and we thank her for her many years of service to the firm in that capacity.  We are a better, stronger firm because of it.  While Ann is stepping away from firm management, she will continue to head our Employment practice group.   We all wish to thank Ann for her insight and leadership over the past 12 years.
 
Jody Briandi has taken over the Managing Partner responsibilities, and we are prepared to move forward under her leadership.  She has been with the firm since her graduation from law school and been a critical part of the firm’s leadership team prior to assuming the Managing Partner mantle.  We as a firm are well poised to continue to move forward with Jody at the helm.

In news more specific to the Labor Law team, I am personally so pleased and proud to be able to announce that our very own Marc Schulz has been elevated to Member status.  Marc has been a stalwart to our team for many years and has been my sounding board to see just how crazy my ideas were for defending cases.  Our team has grown over the years, but in the beginning it was just Marc and me, and while some of my ideas were crazy, many of them did work.  If you are going to defend NY Labor Law cases, you had better have a nimble mind and inventive theories.
 
Amber Storr has also been elevated to Member. She works on our commercial litigation team.  We are likewise glad to celebrate her promotion.  These promotions are not awarded lightly, but earned with hard work.
 
We look forward to being able to raise a glass with all members of the firm as soon as we can safely do so to celebrate.
 
We have been using this time without court appearances to provide training to many of our subscribers.  While we started doing training webinars years ago, they have never been so popular or necessary.  If you need any type of training for your team on any subject Labor Law or Risk Transfer related, we would be happy to set it up for you.  In fact, we have training available on just about any subject imaginable.  Drop me a line and I can send you the catalog of available topics.  If we don’t have a seminar prepared on the subject, we will prepare one and be ready.  Obviously the COVID-19 and CVA seminars are the most popular right now, but we have many other topics available.
 
Now on to the monthly photos and videos.
 
As everyone is aware, one of the criteria for establishing status as an appropriate defendant in a Labor Law case is the authority to control the means and methods of the injury producing work.  In our first photo, we have an interesting question: how exactly does this photo assist us in determining who has such authority?
 

 
The answer is simple.  By lore and myth, “whom so ever shall pullith the tape measure from the stone shall be the rightful superintendent with the actual authority to superviseith, directith and controlith the means and methods of any and all work conducted within the realm”.  Seemingly a great honor, but with great honor in this situation comes absolute liability under § 240(1).
 
In the next video, we have ingenuity and technology revolutionizing the illumination field.  Here, this office renovation was almost complete when as the light bulbs were being installed in the new light socket, the bulb fell causing injury to the plaintiff who was installing new flooring.  § 240(1) case?
 
Video 1: /content/change%20light%20bulb.mp4
 
To all of you who said no because changing a light bulb is ordinary maintenance, I applaud your memory, but I am afraid that you are wrong.  The reason that replacing light bulbs is not a covered activity is because bulbs burn out and need to be replaced periodically.  Here the entire light was being replaced, the base and the lamp.  Thus, the task being undertaken was construction or alteration and it is thus a protected activity. 
 
Here we have a plaintiff hired to do demolition/construction work on a closed manufacturing facility being rebuilt.  As he takes down the wall, a piece of block strikes him in the eye causing severe pain and causing him to lose his balance and fall to the ground.  He had been to a training session just that morning where the need to always wear safety glasses was reviewed and a new pair of glasses was issued to him.  After the fall, he was questioned by the foreman and he said that he would never have fallen but for the piece of block striking him in the eye, that he knew he was expected to wear his safety glasses, that he had the new pair in his pocket, and that he was sorry he forgot to put them on and that it was all his fault.  That was put into an affidavit that he executed on the spot and then was taken to the hospital where he was met by seven plaintiff’s attorneys who had already heard about a worker falling from a height.  § 240(1) case?
 
Video 2: /content/no%20eye%20protection..mov
 
If your first thought was sole proximate cause defense, you are indeed looking at the only potential defense.  The plaintiff was a person so employed, on a construction site who fell from a height.  Easy prima facie case.  The plaintiff was provided a safety device that he failed to use and by his own admission, knew he was expected to use and that had he used it, he would not have fallen.  Unfortunately, that is not the end of the story.  Plaintiff was not provided any fall protection.  Had he been on a ladder that an expert would opine was an appropriate safety device, then there would be an arguable sole proximate cause defense, but where there was no fall protection, the lack of eye protection could not be the SOLE proximate cause of the fall, and thus absolute liability under § 240(1) on the owner and contractor.
 
Here we have a worker building a log and timber hotel.  As he is about to pound the beam into place, you can clearly hear him being instructed not to fall off.  If the worker violates that order not to fall off, will there be a viable sole proximate cause defense?
 
Video 3: /content/LoUPuYU.mp4

As I hope you all knew, simply telling your workers "not to fall" is no substitute for available and appropriate safety devices.  This is a § 240(1) case all day. 
 
Here, you can see the aftermath of some hot rod in a DMC DeLorean in Hill Valley who damaged the tower clock beyond repair.  During the repair by a certified clock repair professional, the below occurred causing injury to two individuals.  The clock actually struck plaintiff #1 but not plaintiff  #2, who claims he was injured when the lift moved suddenly.  § 240(1) case for either or both?

Video 4: /content/drop%20the%20clock.mp4

In a § 240(1) case, there are two potential scenarios where liability is possible: a falling worker or a falling object.  Here we have a falling object.  The object was in the process of being hoisted when it fell.  The project was a repair, so it is a protected activity.  Thus, it is a § 240(1) case for plaintiff #1 who was struck by the clock.   Plaintiff #2 also has a valid § 240(1) case as it is not necessary for the falling object to strike the plaintiff as long as the injury was caused by the force of gravity.  Potential third party action against that kid in the car with the weird stick on the back bumper or the crazy looking guy who attached a wire to the clock?
 
I hope that you, your family, your friends and your co-workers are all 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.

Employment & Business Litigation Pointers:   This newsletter aims to provide our clients and subscribers with timely information and practical, business-oriented solutions to the latest employment and general business litigation developments.  Contact Joseph S. Brown at [email protected] to be added to the mailing list.


David

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

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

 


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.

 

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)(ii), which requires that all ladder footings be firm, is sufficiently specific to support a Labor Law § 241(6) cause of action.

Sprague v Peckham Materials Corp., 240 AD2d 392, 658 NYS2d 97 (2d Dept 1997);
 
Argo v Spencer, 39 AD3d 1143, 834 NYS2d 805 (4th Dept 2007);
 
Kwang Ho Kim v D & W Shin Realty Corp., 47 AD3d 616, 852 NYS2d 138 (2d Dept 2008);
 
Melchor v Singh., 90 AD3d 866, 935 NYS2d 106 (2d Dept 2011);
 
Croussett v Chen., 102 AD3d 448, 958 NYS2d 105 (1st Dept 2013);
 
Estrella v GIT Industries, Inc., 105 AD3d 555, 963 NYS2d 110 (1st Dept 2013);
 
Campos v 68 East 86th Street Owners Corp., 117 AD3d 593, 988 NYS2d 1 (1st Dept 2014);
 
Przyborowski v A & M Cook, LLC, 120 AD3d 651, 992 NYS2d 56 (2d Dept 2014).
 

Sprague held regulation is sufficiently specific to support a Labor Law § 241(6) cause of action.
Argo held reg did not apply where the record established that the ladder was not placed on a slippery or unstable object.
Kwang found reg applicable where π fell because of an unsecured ladder slipped out from underneath him.
Melchor found reg applied where π fell because the unsecured ladder, which had old and worn feet that compelled π to attempt to secure the ladder by placing small blocks at the bottom, slipped out from under him.
Crouseett held reg inapplicable where π testified that he opened and set up the ladder without incident and that the ladder had four rubber footings.
Estrella held reg potentially applicable where the unsecured ladder on which π stood suddenly moved and ∆s failed to show that the ladder complied with firm-footing requirement.
Campos found the reg did not apply where π testified that he had used the ladder without incident before & there was no evidence that the ladder was not in good condition, or that the floor underneath it was slippery.
Przyborowski held reg is sufficiently specific to support a Labor Law § 241(6) cause of action.

 

 

Labor Law Pointers
 
Editor
David R. Adams

Associate Editor
Steven E. Peiper

Associate Editor
Marc A. Schulz

Associate Editor
Eric D. Andrew

Associate Editor
Eric S. Bernhardt

Associate Editor
Brian F. Mark
 

Labor Law Team

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Dan D. Kohane
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Marc A. Schulz
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Michael F. Perley
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Jennifer A. Ehman
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Eric D. Andrew
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Timothy P. Welch
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Brenna Gubala
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