Back to Top

Labor Law Pointers - Volume IX, No. 7

 
 

Labor Law Pointers

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

Volume IX, No. 7
Wednesday, June 3, 2020

 

From the Editor:

Do you have a situation?  We are here to help.   As one situation seems to be making progress, another takes over.  We can, we must, make progress, and if we all do it together, we will succeed.  As my son said, we are living in a chapter in the next edition of our kids', or grandkids', Social Studies textbook. 

We are all here working remotely, linked by Zoom, Skype, FaceTime, Teams, cell phone calls, texts and emails.  We are handling the needs of our clients and our families all from our home offices right now.  I finally broke down and trimmed my COVID beard, but my hair is still way out of control.  I fear I may have forgotten how to tie my tie, but not so worried that I actually got one out of the closet to check.

With the courts opening again by stages and new lawsuits filed electronically, it looks like we will all have some new cases coming in soon.  I have done depositions remotely, met with clients on video, argued motions on the phone and attended court conferences via Skype.  Things are different in many ways, but the same at the heart of it.  We are here to represent our clients, and will do so with all means at our disposal.  Our goal, as always, is to provide the highest quality legal work with a heavy dose of practicality, looking for opportunities to resolve cases advantageously for our clients and carriers.  Our investment in a cloud-based case management system has allowed us to continue without missing a beat.

We have taken the opportunity while working remotely to provide web-based training to several carriers and clients; we urge you to reach out to us if you want to take advantage of this option.  I have done webinars on various aspects of New York Labor Law, Risk Transfer and identifying opportunities for early resolution.  Let us know if you are interested.  We have many different webinars available and can tailor a presentation to your exact needs.

In our photo array this month, we have some teaching moments.  In the first photo, we see a roofer and it is his first day on the job for a roofing contractor on a single-family home occupied by the retired owner, who is out of town.  The owner hired the roofing contractor to repair a leak.  A co-worker has assisted him in putting on the safety line and sent him to remove some shingles that need to be replaced because there is a leak.  The plaintiff then slips, but is saved from falling by the safety line, but sustains a nasty neck injury.  Who can the plaintiff sue, and what is his cause of action? 
        


The plaintiff is a person so employed so he is a valid plaintiff.  The project is to repair a leaking roof, so we have a qualifying project.  The injury is caused by the effects of gravity and it does not matter that he did not actually fall; he sustained an injury due to gravity.  There is no sole proximate cause defense here as the plaintiff was using the safety device he was provided and there is no way that any court will believe that a rope tied around the plaintiff’s neck is an appropriate safety device.  The problem for the plaintiff is who can he sue.  The homeowner is protected by the exemption for homeowners who do not supervise direct or control the means and methods of the injury producing work, so the plaintiff cannot sue him.  The employer is protected by section 11 of the comp law, which makes comp the sole remedy of the plaintiff, so if the employer had comp for the plaintiff, he is immune to suit by his employee.

Here we have a maintenance worker for a company hired by the property maintenance company to change the light bulbs in the lobby of a government building in New York.  When a light bulb falls from the pole he is using to change the bulb, hits him, injures him and causes him to fall from the lift to the floor far below, does he have a valid case under § 240(1)?

So we start with the plaintiff, who is a person so employed.  The property owner, the municipal entity, can be sued under § 240(1) so they are a valid defendant, but must be sued in the court of claims.  The management company can be sued as the contractor and is a valid defendant, but must be sued in the Supreme Court but not the Court of Claims like the municipal entity, so there would need to be two separate suits in different courts.  For the § 240(1) claim, the plaintiff was both struck by a falling object and fell himself, so the injuries are gravity related and thus the mechanics of the injury support a § 240(1) claim.  Where the claim fails is that replacing a light bulb is not a covered activity.  It has been held to be maintenance and not repair, so the plaintiff was not engaged in a protected activity.

Here we have a multi-family home with 3 apartments. An OSHA-10 certified worker has been hired to replace the glass in the top window over the door and he is injured when the A-frame ladder standing on top of shifts causing him to fall.  He has, on his truck, several other ladders including an 8-foot A-frame ladder, but he used the 3-foot ladder because it was easier for him to carry from the truck 35 feet to where he needed to work.  Does he have a § 240(1) claim?



Here we have a valid plaintiff who is being paid for his work and thus so employed.  We have a defendant property owner with no exemption as it is a 3-family home.  We have a project covered by the statute as it is a repair and a fall from a height, so we have a gravity caused injury.  There is then a prime facia case of § 240(1).  As a defense, the owner will claim a the 5 elements of the sole proximate cause defense are met.  The elements are that the plaintiff was 1) provided an appropriate safety device, 2) the appropriate safety device was present on site, 3) the plaintiff was instructed to use the appropriate safety device, 4) the plaintiff failed to use or misused the appropriate safety device, and 5) failed to use it for no good reason.  Here an expert would be able to opine that the 8-foot ladder was appropriate, it was on site, OSHA training clearly states that a worker must never stand on the top of any ladder so he was instructed to use the appropriate ladder, which he failed to do and clearly by the photo, there is plenty of room for the larger ladder on the porch.  Summary judgment for the defendant.  Here you see the advantage of having an attorney who is OSHA-certified defending the case and knowing that this is covered in the OSHA-10 training.  All of our Labor Law Team is OSHA-10 Construction certified, has taken the training course and has the materials, a huge advantage in developing a sole proximate cause defense.

In this next photo, the plaintiff, a mason hired by the GC, needs to enlarge the window opening to install a new window in this renovation project.  He asks a worker for the GC to hold one end of the board to allow him to make the saw cut.  The worker holding the board unfortunately gets a phone call, forgets what he was doing, and drops the board to reach for his phone.  § 240(1) case when the plaintiff falls? 
 

We have the elements we need it appears.  The plaintiff was employed, the property is commercial, the owner would be an appropriate defendant, the plaintiff is working at a height and was injured by the application of gravity to his body.  The safety device will be the board, and it failed to provide protection to the plaintiff.  The person holding the board can’t be a safety device as people are not and cannot be a safety device.  Summary judgment for the plaintiff, but a great photo.  Especially entertaining is the hard hat taken off and set on the windowsill and the lack of safety glasses or gloves.  A photo like this gives OSHA heart burn.

This photo makes me queasy.  The plaintiff is an OSHA-10 certified construction worker roughing in a new building to become a restaurant.  The extension ladder was just not long enough, so he carried an A-frame ladder up with him and set it on the ledge, closed.  When he falls, is it a valid § 240(1) case?



Plaintiff is a being paid so a valid plaintiff. Owner is a valid defendant along with at least the GC on the project.  The project is covered, and the injury is gravity related.  Given the case we just discussed, you might think that the fact the plaintiff was standing on the top of the ladder, as he had been instructed not to do, would create a valid sole proximate cause defense.  It does not.  Here the plaintiff didn’t have an appropriate safety device he misused.  As there was no appropriate safety device on site, the defendant does not have a valid sole proximate cause defense.

This one is even crazier.  The plaintiff has been hired by a resort in New York State to cut down the palm trees that grow there because they block the view of the patrons from the balcony of the restaurant.  The plaintiff shows up with his chain saw and cuts them down but falls from the tree as he cuts the last one down.  §240(1) claim?

Video 1

Here the plaintiff is being paid, so valid plaintiff.  The building owner is a valid defendant.  The plaintiff is cutting down a tree, so demolition is a named protected activity and the plaintiff is injured by the application of gravity.  But, not so fast.  Remember that the demolition must be of a building or structure.  They are defined as being made of component parts, which a tree is not, and thus being injured while demolishing a tree is not a covered activity.  No § 240(1) here.

That is all for this month. Please stay safe and feel free to reach out with any “situations”, even if just to confirm what you already know and say hi.

Stay safe. 

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


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 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.

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.

 

Cackett v Gladden Props., LLC
May 7, 2020

Appellate Division, First Department

 
Plaintiff was allegedly injured when a heavy metal door that had been stored in an inadequately lit room by Interstate’s employees fell over on him. The trial court denied the Structure Tone defendants, the owners, occupant and general contractor’s motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims against them and on their contractual indemnification claims against Interstate, KD, and third-party defendant/plaintiff’s employer, Port Morris, granted Port Morris's summary judgment motion dismissing the third-party complaint against it, and granted KD's summary judgment motion to dismiss the Structure Tone defendants’ cross-claims against it.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed denial of defendants’ motion for summary judgment as to Labor Law § 200 and common-law negligence, finding issues of fact exist as to whether the accident was caused by a dangerous premises condition or a subcontractor’s means and methods, or some combination of those factors, and as to the Structure Tone defendants’ liability under the applicable standards. As to KD, the Court also found questions of fact as to whether KD, which was responsible for lighting the premises, caused or created the inadequate lighting of the room in which the metal door was stored or had actual or constructive notice of the inadequate lighting so as to be liable under a common-law negligence theory.

Indemnity Issues in Labor Law (SEP)
The court held that it was premature to award contractual indemnity to Structure Tone as there had not been any finding that they were not negligent and public policy precludes awarding indemnity to a negligent par t and makes the contract void and unenforceable.
 

Orellana v Mo-Hak Assoc., LLC
May 14, 2020
Appellate Division, First Department

 
Plaintiff was allegedly injured when he fell from a ladder while painting an apartment in a building owned by defendant. Plaintiff’s employer testified that he had specifically instructed plaintiff only to paint areas he could reach and not to use the ladder. The trial court granted plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim. 
 
Labor Law § 240(1) (DRA) 
The First Department unanimously reversed, on the law; finding the testimony of plaintiff’s employer raised triable issues as to whether plaintiff’s duties were expressly limited to work that did not expose him to an elevation-related hazard within the purview of Labor Law § 240(1).

PRACTICE POINT:  When the plaintiff is told not to work at a height, and he does, that is one of the limited occasions where the plaintiff’s failure to follow directions can result in summary judgment for the defendant.  It is not dismissed as a recalcitrant worker per se, it is more akin to the plaintiff working outside his assigned duties.
 

Parra v Cardenas
May 14, 2020
Appellate Division, First Department

 
Plaintiff was working on the roof above defendant’s residential garage – who was his friend – when weakened plywood collapsed under him, causing him to partially fall through the roof before catching himself with his arms. Plaintiff claims defendant directed him to go onto the roof to assist the roofing contractors with the demolition work. Defendant claims he paid plaintiff only to clean up debris at ground level and directed plaintiff not to go onto the roof, but plaintiff ignored his instructions. The trial court denied plaintiff partial summary judgment under Labor Law § 240(1).
 
Labor Law § 240(1) (DRA)
The First Department unanimously affirmed; finding that regardless of whether defendant hired plaintiff to perform clean-up work only or to assist with the demolition work, he was employed as part of a “larger construction project” and a member of “a team that undertook an enumerated activity” (Hill v Acies Group, LLC, 122 AD3d 428 [1st Dept 2014]. That plaintiff was hired not by the roofing contractor but by defendant did not bar him from recovery.
 
The Court further held that defendant’s failure to plead the homeowner exemption as an affirmative defense was not fatal to his assertion of the defense, as plaintiff was not surprised by the defense and had an opportunity to oppose it (see Bautista v Archdiocese of N.Y., 164 AD3d 450 [1st Dept 2018]). However, the Court found a triable issue of fact as to whether defendant is entitled to the homeowners’ exemption because the record did not permit the Court to determine whether the building was a two- or three-family dwelling at the time of the accident. While plaintiff argued that defendant’s testimony established that he had tenants in his upstairs apartment and the basement at the time of the accident, he submitted an incomplete transcript of defendant’s testimony related to the nature of the occupancy of the basement.
 
PRACTICE POINT:  The fact that the plaintiff here was not hired to work on the roof is different than the case above also from the First Department on the same day.  Here the plaintiff was hired to work on the project but not directed not to work at height so he was working within the confines of his job as opposed to the plaintiff above who was specifically directed not to work at height.  Failure to plead an affirmative defense is never a good idea, but here as it did not come as a surprise to the plaintiff the court allowed the amendment, but it is always a much better idea to plead it whenever potentially applicable.
 

Spencer v Term Fulton Realty Corp.
May 14, 2020
Appellate Division, First Department

 
Plaintiff was allegedly injured while working as a carpenter for a subcontractor performing construction work. Plaintiff stated iron rods were scattered on the ground along with debris. Plaintiff was directed to pass iron rods to workers above him so the iron rods could be installed as part of the building’s concrete superstructure. To retrieve the iron rods, plaintiff and a coworker had to move a cart loaded with dozens of iron jacks. After moving the cart a few feet, the cart’s wheels got stuck. When plaintiff’s coworker continued to pull it, the cart pinned plaintiff’s hand against an iron jack, severing the tip of his index finger.
 
The trial court granted defendants’ motion for summary judgment dismissing the Labor Law §§ 241(6), 200, and common-law negligence claims as against defendant Bravo. 
 
Labor Law § 241(6) (MAS)
The First Department unanimously affirmed dismissal of plaintiff’s Labor Law § 241(6) claim predicated on alleged violations of Industrial Code (12 NYCRR) regulations § 23-1.7(e)(1) and (e)(2) because neither plaintiff nor the cart he was pushing actually tripped or slipped, and the rods were integral to plaintiff’s work. The Court also held regulations §§ 23-1.28 (a) and (b) did not apply because the cart that plaintiff was pushing became stuck on the rods underneath it, and not because of any problem with its wheels.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department reversed the decision granting defendants’ summary judgment as to Labor Law § 200 and common-law negligence claims against Bravo. It held the claims, arising out of a dangerous condition on the premises, should not have been dismissed because defendants failed to establish Bravo's lack of constructive notice of the dangerous condition. Plaintiff alleged there was “garbage” as well as rods on the floor that impeded the cart’s movement. Bravo’s contract explicitly required it to look for dangerous and hazardous conditions on a daily basis, and to keep the workplace safe. However, Bravo submitted no evidence as to its inspection and cleaning schedule on the worksite (which could have demonstrated no constructive notice); therefore, the claim was reinstated.
 

Park v Home Depot U.S.A., Inc.
May 6, 2020
Appellate Division, Second Department

 
Plaintiff was allegedly injured when he slipped down a ladder while working at a Home Depot store. He filed two separate actions that were later consolidated. One complaint alleged his incident occurred on October 1, 2014 while the other complaint naming Nu-Tek Roof as a defendant alleged his incident occurred on March 24, 2015. The trial court granted plaintiff’s motion for leave to amend the complaint to assert the correct date of his incident.
 
Labor Law § 240(1) (DRA)
The Second Department reiterated the rule that pursuant to CPLR § 3025(b), a motion for leave to amend a pleading may be made “at any time,” and “shall be freely given upon such terms as may be just.” The determination to permit or deny the amendment is committed to the sound and broad discretion of the trial court. Delay alone is insufficient to bar an amendment to the pleading; “[i]t must be lateness coupled with significant prejudice to the other side” (Coleman v Worster, 140 AD3d 860, 862 [2d Dept 2016]). Here, the Court held the trial court providently exercised its discretion in permitting plaintiff to amend his complaint and defendants did not establish prejudice or surprise by the amended complaint nor that it was patently devoid of merit or palpably improper.  

PRACTICE POINT:  Significant prejudice is more that increased exposure, the delay must have hindered the defense or prevented the defense from utilizing a defense otherwise available. 
 

Salgado v Rubin
May 6, 2020
Appellate Division, Second Department

 
Plaintiff, an employee of a water, smoke, and fire damage restoration company, was working at the defendants’ vacation home in Bridgehampton, which sustained water damage from a burst pipe in the attic. While plaintiff was standing on a floor joist in the attic, he fell to the floor when the joist allegedly moved. The trial court granted defendants’ summary judgment motion seeking to dismiss the claims under Labor Law §§ 240(1), 241(6), 200, and common-law negligence.
 
Labor Law § 240(1) (DRA)
The Second Department affirmed; finding that defendants demonstrated they were entitled to the benefit of the homeowner’s exemption by offering evidence that they were owners of a one-family dwelling and they did not direct or control the work being performed (see Chavez-Lezama v Kun Gao, 173 AD3d 826, 827 [2d Dept 2019]). In opposition, the Court held plaintiff failed to raise a triable issue of fact. Contrary to plaintiff's contention, defendants’ purported requests, including that the workers install insulation to prevent the pipe from freezing again, provide good documentation for the insurance company, and use booties on their feet to protect the floors, and that two workers move sentimentally valuable statues from the work area, simply involved instructions as to aesthetic matters or the exercise of general supervision which did not amount to direction or control in the context of the Labor Law homeowner’s exemption.
 
PRACTICE POINT:  The type of supervision, direction or control necessary for a homeowner to lose the exemption has to do with directing the means and methods of the work, how to do the work. 
 
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed dismissal of plaintiff’s Labor Law § 200 and common-law negligence claims. Where a plaintiff claims his accident occurred both as a result of the manner in which work is performed and due to a dangerous condition on the premises, a defendant moving for summary judgment with is obligated to address the evidence applicable to both liability standards. Here, the Court held defendants demonstrated that they did not direct or control the plaintiff's work. They lacked any prior knowledge of the existence of the joist from which the plaintiff fell, so the defendants further demonstrated that they neither created the allegedly dangerous condition nor had actual or constructive knowledge of it. Plaintiff failed to raise a triable issue of fact in opposition as the Court found defendants’ alleged knowledge that the house was shoddily constructed and that the joists were missing a metal plate did not amount to actual knowledge that the joists constituted a dangerous condition.
 

Martinez v 281 Broadway Holdings, LLC
May 13, 2020
Appellate Division, Second Department

 
Plaintiff was working on a new building project for defendant 281 Broadway. Defendant Pavarini was the general contractor on the project. Pavarini hired defendant SJE to do the electrical work. Plaintiff, an employee of a nonparty subcontractor who was performing cement work, was allegedly injured when his right foot became entangled in electrical wires hanging from the ceiling. Plaintiff alleged that, at the time of his incident, he was carrying a sheet of wood and metal, eight feet by three feet in size, and weighing 150 pounds. The electrical wires had been imbedded in the ceiling by SJE and were waiting to be attached to various light fixtures and receptacles.
 
The trial court granted plaintiff's summary judgment motion on his Labor Law § 241(6) claim against 281 Broadway and Pavarini and denied SJE’s summary judgment motion seeking dismissal of the Labor Law §§ 241(6), 200 and common-law negligence claims.
 
Labor Law § 241(6) (MAS)
In support of his Labor Law § 241(6) claim, plaintiff relied on Industrial Code (12 NYCRR) regulation § 23-1.7(e)(2), which requires that “parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed.” Since the proof submitted by SJE demonstrated that the electric wires were an integral pat of the construction, the Second Department held the requirements of 1.7(e)(2) did not apply and therefore reversed the trial court and granted SJE’s motion to dismiss this claim against it.
 
For the same reasons, the Court held the trial court should have denied plaintiff’s motion as against 281 Broadway and Pavarini, and upon searching the record, it awarded summary judgment to those defendants, effectively dismissing this claim as asserted against them.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department agreed with the trial court’s denial of SJE’s motion for summary judgment as to common-law negligence. This is a “dangerous condition on the worksite” case, so liability under common-law negligence may be imposed upon a subcontractor where it had control over the work site and either created the allegedly dangerous condition or had actual or constructive notice of it. Here, the evidence submitted by SJE did not eliminate triable issues of fact as to whether it created an unreasonable risk of harm by leaving the wires dangling at the worksite in the way it did and whether that risk was a proximate cause of the plaintiff’s injuries
 

Martinez v 281 Broadway Holdings, LLC
May 13, 2020
Appellate Division, Second Department

 
The facts from the previous case are the same for this case except SJE moved to reargue the above summary judgment motions and to vacate and/or settle the order. SJE argued the prior order regarding the negligence claim was confusing and plaintiff interpreted the order’s language as SJE created the dangerous condition and thus only damages are in dispute. Plaintiff cross-moved to confirm the only issue to be decided at trial is damages, arguing all liability issues were resolved by the prior order.
 
The trial court clarified that it had not intended to grant plaintiff summary judgment on the Labor Law § 200 and common-law negligence claims against SJE. Upon granting SJE’s motion for reargument, the trial court vacated its prior order and granted SJE’s prior motion for summary judgment dismissing the Labor Law § 200 claim but otherwise denied SJE’s motion. The trial court also searched the record and awarded plaintiff summary judgment to the extent of dismissing SJE’s affirmative defense alleging comparative negligence.
 
The trial court also granted 281 Broadway and Pavarini cross-motion for summary judgment on their crossclaims for contractual indemnification against SJE.
 
Labor Law § 200 and Common-Law Negligence (ESB)
In reviewing the decision on reargument, the Second Department reversed the trial court decision granting plaintiff’s motion to dismiss the affirmative defense of comparative negligence., finding SJE raised a triable issue of fact as to whether the condition was readily observable, which bears upon the issue of the plaintiff's comparative negligence. Therefore, plaintiff had not demonstrated the defense had no merit, and the trial court should not have awarded summary judgment dismissing that defense.
 
Indemnity Issues in Labor Law (SEP)
A party seeking contractual indemnity must establish that it is without negligence as a negligent party cannot be contractually indemnified for its own negligence.  Proper submission of the relevant contracts established that SJE was obligated to indemnify 281 Broadway and sufficient admissible evidence established that 281 Broadway was not actively negligent but that any liability they may have was vicarious in nature, thus contractual indemnity was properly awarded.
 

Villalba v Brady
May 20, 2020
Appellate Division, Second Department

 
Plaintiff commenced an action against defendant DM alleging violations of Labor Law §§ 240, 241, 200 and common-law negligence. Prior to discovery, DM moved for summary judgment dismissing the complaint and the trial court granted DM’s motion.
 
Labor Law § 240(1) (DRA)
“A party who contends that a summary judgment motion is premature is required to demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant” (Singh v Avis Rent A Car Sys., Inc., 119 AD3d 768, 770 [2d Dept 2014]).
 
Here, the Second Department reversed the trial court; finding that at the time that DM moved for summary judgment, no discovery had taken place, and depositions of the parties had not yet occurred. The Court further noted that the papers submitted to the trial court by the parties suggest that discovery might lead to relevant evidence.
 
PRACTICE POINT:  Where no discovery has been conducted it is much easier to argue that the motion is premature, however take note that summary judgment motions are being made earlier and earlier, and opposition to the motion as premature must demonstrate that there is evidence controlled by the moving party which might be utilized in opposition to the pending motion.  
 

Zhigue v Lexington Landmark Props., LLC
May 20, 2020
Appellate Division, Second Department

 
Plaintiff, a laborer employed by third-party defendant Vanquish, allegedly was injured while performing subcontract work at a building owned by defendant Lexington, and leased to defendant Dover, who retained defendant Reidy to provide demolition work on the building, and Reidy subcontracted the work to Vanquish. Plaintiff was allegedly injured when a portion of a decorative plaster ceiling above the area where plaintiff was working fell, causing a scaffold under which plaintiff was standing to collapse, crushing him. 
 
The trial court denied plaintiff’s summary judgment motion on his Labor Law §§ 240(1) and 241(6) claims against all defendants but granted plaintiff’s motion on the negligence claim against Lexington. The trial court searched the record and further awarded plaintiff summary judgment on his negligence claim against Reidy and Dover. The court also denied Dover’s cross-motion for summary judgment dismissing the amended complaint against it.
 
Labor Law § 240(1) (DRA)
The Second Department affirmed the trial court’s denial of plaintiff’s motion under Labor Law § 240(1) without comment other than that the record was limited, and discovery was not complete.
 
PRACTICE POINT:  Great caution must be taken when moving for summary judgment as only one bite is allowed at that apple.  Where, as here, the motion is denied without specific leave to move again, the opportunity is lost.  The court notes the limited record, care must be taken to fulfill all elements of §240(1) to establish a prima facie case, and failure to do so will result in a denied motion.
 
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department reversed the trial court’s decision granting plaintiff summary judgment on his negligence claim as the trial court should not have searched the record and awarded summary judgment based on the doctrine of res ipsa loquitur. The doctrine of res ipsa loquitur applies when the injury-causing event: (1) is of a kind which ordinarily does not occur in the absence of someone's negligence; (2) is caused by an agency or instrumentality within the exclusive control of the defendant; and (3) was not due to any voluntary action or contribution on the part of the plaintiff.  Although the first and third elements might have been satisfied in the plaintiff's favor, based upon the limited record, the Court held this standard was not met as to the second element. Nor did plaintiff establish his entitlement to summary judgment on this claim issue as to Dover.  Instead, the Court found triable issues of fact as to all defendants’ negligence.

 

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)(iii) requires that leaning ladders be rigid enough to prevent excessive sag under expected maximum loading conditions.
 
 
*We could not find any case declaring this reg sufficiently specific.

Kwang Ho Kim v D & W Shin Realty Corp., 47 AD3d 616, 852 NYS2d 138 (2d Dept 2008).

Kwang held reg did not apply where π fell because there was no evidence that the “upper end” of the allegedly unsecured ladder slipped out from under him.

 

 

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

 

David R. Adams, Team Leader
[email protected]
 

Dan D. Kohane
[email protected]                                           

Marc A. Schulz
[email protected]
           
Michael F. Perley
[email protected]

           
Michael J. Dischley
[email protected]

Eric S. Bernhardt
[email protected]

Steven E. Peiper
[email protected]

Jennifer A. Ehman
[email protected]

Eric D. Andrew
[email protected]

Brian F. Mark
[email protected]

Timothy P. Welch
[email protected]

Brenna Gubala
[email protected]

 

 

Hurwitz & Fine, P.C.
 
Buffalo
1300 Liberty Building, Buffalo, NY 14202
Phone: 716-849-8900, Fax: 716-855-0874
             
Long Island
575 Broadhollow Road, Melville, NY 11747
Phone: 631-465-0700, Fax: 631-465-0313

Albany
Phone:  518-641-0398

Additional Offices
Albion  |  Amherst  |  Niagara Falls  |  Palm Beach Gardens  |  Toronto


Hurwitz & Fine, P.C. is a full-service law firm providing legal services
throughout the State of New York
 
www.hurwitzfine.com
© 2020, Hurwitz & Fine, P.C. All Rights Reserved

In some jurisdictions, newsletters such as this may be considered Attorney Advertising.

 
 

Copyright © 2020, Hurwitz & Fine, P.C., All rights reserved.

Our mailing address is:
1300 Liberty Building, Buffalo, NY  14202

 

Newsletter Sign-up

Fill in the form to register to receive any of our free electronic newsletters: