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Labor Law Pointers - Volume IX, No. 8

 
 

Labor Law Pointers

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

Volume IX, No. 8
Wednesday, July 1, 2020

 

From the Editor:

Do you have a situation?  We love dealing with situations, and we are here to help.

I write to you today from Lake Raponda in southern Vermont.  Here is a photo from my temporary desk.

 

This is a house built by my Great, Great Uncle Verne, 24’ by 24’ and heaven on earth.  He was given the land when the Lake Raponda hotel had a fire, went out of business and could not pay him.  According to family legend, it originally was the land where the icehouse was located.  I have been here every year of my life. My dad, 89‑years-old, will miss it this year for only the second time in his life, due to COVID; his first miss was a year he spent in Korea.  Family traditions are the best.

My kids have all learned to water ski here. In fact, given my obsession with people falling from ladders, my middle son has not been allowed to partake in one aspect of one of his passions.  We are a bit crazy here; we have a plywood disk, just under 3 feet in diameter and we ski on it.  You can do spins on it but, after a few years it gets boring.  For well over 60 years, the Adams clan has placed objects on top of the disc, chairs, stools, even ladders, and climbed up on top of them and then done turns.  My son wanted to use the ladder, but I had to step in and insist that he only use the stool.  I have added a picture as there was a doubting Thomas or two out there.  I have retired from climbing up on the stool. While it is difficult to get up on the stool, I can do that; but falling off and landing on the disc is a young man’s game. It’s more fun to drive for my kids anyway.



As anyone with multiple kids will tell you, once a picture of one kid is posted, his younger brother’s picture better appear as well. 



For our first photo, we have a picture taken by a homeowner of her family home.  The plaintiff, whose company was hired to do some gutter repair, climbed up the ladder and onto the roof.  He had previously told the homeowner that he was recovering from a broken back.  The homeowner sent me the picture as she and her family left to go out to eat.  Is there any potential liability for Labor Law to the property owner when the plaintiff falls trying to get back onto the ladder and climb down sustaining a broken leg?



The plaintiff is a person so employed, and thus an appropriate plaintiff. The project is repair and thus covered, and the plaintiff’s injury was caused by the application of gravity.  The defendant is the property owner but, as the owner of a single-family home who did not supervise, direct, or control the means and methods of the plaintiff’s work, can’t successfully be sued as there is an exception to § 240(1) for the owner of a one- or two-family home used for residential purposes by the owner.  The owner, Brenna Gubala, a member of the Hurwitz & Fine Labor Law team, took the photo as she shoved the kids into the car and fled to ensure there could be no allegation that she supervised, controlled or directed the means or methods of the soon-to-be plaintiff’s work.  A wise choice.

In the next photo, we have a carpenter who was building a new home but who put the wrong length wooden beam into the roof repair.  The homeowner was irate and told the carpenter to immediately cut off the excess and that he did not care how it was done as long as it was done right now.  The carpenter told the homeowner that he was waiting for a taller ladder to arrive so he could cut it off but the homeowner was insistent that he cut it right now before his wife arrived, so it looked perfect.  As the plaintiff cut it using his best option he somehow fell and was injured.  § 240(1) case?



As the homeowner directed the plaintiff to cut it – now – he would be considered to have directed the means and methods of the injury producing work, and would be liable under § 240(1).

Here the plaintiff was repairing a faulty mobile phone relay, owned by the mobile phone company, and fell off the commercial building the relay was mounted on, owned by a different company.  It was his first time at this site and he did not know to bring a harness and lanyard, so he did not have one with him, in spite of having been trained to always wear one when working on an open roof.  Labor Law case and, if so, against who?



We have a valid plaintiff as he was a person so employed.  We have a repair; so a covered activity, and a gravity-related injury.  We have two potential defendants: the owner of the building and the owner of the relay.  The building is, obviously, a building and the relay, which is made of component parts qualifies as a structure, so both can be defendants.  Despite plaintiff being instructed not to ever work on an open roof without a harness and lanyard, the sole proximate cause defense is not likely going to be successful as the safety device is not available to the plaintiff at the time of the accident.

I’d like to note that, in this edition of LLP, we feature a new contributor, but longtime member of the H&F Labor Law team.  Brian Mark, my partner and managing attorney of our NY Metro office, has taken over the indemnity column for Steve Peiper.  Brian has been handling complex Labor Law cases for many years and is a critical member of our team. 

Lastly, July 27 – 31, 2020 is Operation Safety Week, and an opportunity for employers to pause work and have a conversation with employees about the automobile hazards and protective measures relating to safety policies, goals and expectations. Join Oryx all week, who will also host virtual safety sessions and live webinars relating to auto safety.  On Friday, July 31st, Hurwitz & Fine's Brian Webb will present a live webinar during Operation Safety Week titled “Vicarious Liability Related to Employers and Automobiles” aimed at helping both insurers and insureds understand the legal concepts associated with vicarious liability.
 
For more information and to register, click 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.

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 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.

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.

 

Langer v MTA Capital Constr. Co 
June 4, 2020
Appellate Division, First Department


PSJV, the entities responsible for site cleanliness and trade coordination, at a time when the project was open to the elements, covered a recessed area of the third floor, where rainwater regularly collected, with non-waterproof planking, and never inspected it for water accumulation. PSJV also failed to warn plaintiff or his employer that he was working under the recessed area, and when he drilled into the second-floor ceiling to affix electrical equipment, the sludgy, oil water poured down onto him, causing him to lose his balance and injure himself.
 
The trial court denied PSJV’s motion for summary judgment seeking dismissal of the Labor Law §§ 241(6), 200 and common-law negligence claims and granted plaintiff summary judgment on the Labor Law § 200 and negligence claims against PSJV. The trial court also denied PSJV’s and MTA’s motions for contractual indemnity and breach of contract against Hatzel and E-J, granted Hatzel’s motion to dismiss the contractual indemnity claim, denied PSJV’s motion for breach of contract against E-J but granted them summary judgment on their breach of contract against E-J, denied E-J’s motion to dismiss that claim, granted Hatzel’s motion dismissing E-J’s cross-claim against it, and denied that portion of E-J’s motion seeking contractual indemnity against Hatzel.
 
Labor Law § 241(6) (MAS)
In support of his Labor Law § 241(6) claim, plaintiff relied on Industrial Code (12 NYCRR) regulation § 23-1.8(a) and (c)(3), which are sufficiently specific to support such a claim, and were arguably violated. However, the First Department held that such violations could not form the proximate cause of the accident here because plaintiff’s injuries were not the result of either improper eyewear or clothing, and plaintiff did not even allege that he sustained an eye injury.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department held this action is the “rare” case where summary judgment in favor of the plaintiff on Labor Law § 200 and common-law negligence was appropriate. It found that PSJV, the entities responsible for site cleanliness, covered a recessed area of the third floor, which was exposed to the elements, and where rainwater regularly collected, with non-waterproof planking. Further, PSJV never inspected that area for water accumulation. PSJV also did not warn plaintiff or his employer that plaintiff was working under the recessed area, and when he drilled into the second-floor ceiling to affix electrical equipment, the sludgy, oily water poured down onto him, causing him to lose his balance and injure himself. Thus, plaintiff made a prima facie showing that the accident occurred due to a defective condition on the premises of which PSJV had actual notice, having caused and created it.
 
Indemnity Issues in Labor Law (BFM)
It is well settled that a party seeking contractual indemnity must establish that it is without negligence as a negligent party cannot be contractually indemnified for its own negligence.  Here, as the indemnity provision in the contract between E-J and Hatzel required Hatzel to indemnify defendants only where there was evidence that Hatzel was negligent, which there was none, the trial court properly dismissed the defendants’ indemnity claims.  In reviewing the indemnity provision between PSJV and E-J, the Court held that the contract between those parties did not require a showing of negligence and that the contract contained a “savings clause” to prevent automatically running afoul of the General Obligations Law.  However, since PSJV was found negligent and all other parties were found free of negligence, there were no scenarios under which E–J could be obligated to pay a portion of any judgment assessed against PSJV. Thus, PSJV’s claim for indemnity against E-J should have been dismissed.

 

Sinchi v HWA 1290 III LLC
June 4, 2020
Appellate Division, First Department

 
Plaintiff allegedly was injured by a collapse of a ceiling that was not braced or shored during demolition work. Following his supervisor’s instructions, plaintiff descended from the ladder upon which he was working and walked under the ceiling that collapsed in order to inspect or remove a sprinkler head. Plaintiff’s supervisor acknowledged the ceiling would not have collapsed on plaintiff had he simply remained on the ladder.
 
The trial court granted plaintiff summary judgment on his Labor Law § 240(1) claim, denied defendants’ cross-motion to dismiss the Labor Law § 200 and common-law negligence claims, and purportedly granted plaintiff summary judgment under Labor Law § 241(6) based on Industrial Code regulation § 23-3.3(b)(1).
 
Labor Law § 240(1) (DRA)
The First Department unanimously affirmed summary judgment in favor of plaintiff because no safety devices were provided to brace or shore the ceiling, and that plaintiff may have pulled on it with a hook while inspecting or attempting to remove the sprinkler head at most amounts to comparative negligence, which is not a defense to this claim.
 
PRACTICE POINT:  As the ceiling was not secured and thus fell on the plaintiff it is a labor law case. 
 
Labor Law § 241(6) (MAS)
The First Department clarified that plaintiff’s Labor Law § 241(6) predicated upon an alleged violation of Industrial Code regulation § 23-3.3(b)(1) was actually dismissed by the trial court, as plaintiff acknowledges.
 
 

Astrakan v City of New  York
June 11, 2020
Appellate Division, First Department

 
Plaintiff, a bridge inspector, was allegedly injured while performing an inspection of a City bridge, pursuant to a contract providing for periodic bridge inspections to determine any necessary future repairs. The trial court denied B&H’s motion for summary judgment to dismiss the Labor Law §§ 240(1), 241(6), 200 and common-law negligence claims and denied the City’s cross-claims against it, and also denied the City’s motion to dismiss the complaint and all cross-claims against it and on its contractual and common-law cross-claims against B&H.
 
Labor Law § 240(1) (DRA)
The First Department reversed the trial court and dismissed this claim because the contract and plaintiff’s work demonstrate that he was not engaged in any protected activity under Labor Law §§ 240(1) or 241(6) at the time of his accident.
 
PRACTICE POINT:  Inspection in not a covered activity enumerated in § 240(1). As the plaintiff was involved in a non-covered activity the extensive protection of Labor Law § 240(1) is not afforded to the plaintiff.

Labor Law § 200 and Common-Law Negligence (ESB)
The First Department reversed the trial court’s decision denying B&H’s and the City’s motions for summary judgment as to the Labor Law § 200 and common-law negligence claims, finding that plaintiff’s accident arose from the means and methods by which he gained access to his work. Because the evidence demonstrated neither the City nor B & H controlled those means and methods, they could not be liable under § 200 or common-law negligence.
 
Indemnity Issues in Labor Law (BFM)
The Court held the crossclaims between the City and B&H as well as the crossclaims by North East Marine and Metro against the City for common-law indemnification and contribution must be dismissed because neither the City nor B&H was negligent.
 
 

Hewitt v NY 70th St. LLC  
June 11, 2020
Appellate Division, First Department

 
Sweeney, the general contractor, subcontracted with Structure to perform exterior general construction work. Structure subcontracted with plaintiff’s employer, Spring, to erect and dismantle scaffolding. Plaintiff was allegedly injured when, while he was at ground level holding an I-beam that was being hoisted, a Structure employee dislodged a metal baluster from the third-floor balcony railing, which fell and struck plaintiff in the head and face.
 
The trial court denied plaintiff summary judgment under Labor Law §§ 240(1), 241(6) and 200, granted Sweeney’s cross-motion to dismiss the §§ 241(6) and 200 claims but denied as to its cross-claim for contractual indemnity against Structure, and denied Spring’s cross-motion to dismiss the third-party complaint.
 
Labor Law § 240(1) (DRA)
The First Department reversed and held plaintiff should have been awarded summary judgment under Labor Law § 240(1) against Sweeney because there was no overhead protective provided to plaintiff. Even if plaintiff was in an area of the worksite where he was not supposed to be at the time of his accident, this would constitute at most comparative negligence, which is not a defense.
 
PRACTICE POINT:  This one is a bit strange to me.  The falling object, a baluster on a railing on the balcony, fell causing injury.  The baluster, as far as I can tell, was not a part of the project and I am wondering where the requirement could come from to secure a permanent part of the building.  In any event, the ruling was that, as an item in need of securing, §240(1) was violated.
 
Labor Law § 241(6) (MAS)
Considering the First Department’s decision above, the issue of Sweeney’s liability under this claim is academic (see, e.g. Saquicaray v Consolidated Edison Co. of N.Y., Inc., 171 AD3d 416, 417 [1st Dept 2019]; Berisha v 209-219 Sullivan St. L.L.C., 156 AD3d 457, 458 [1st Dept 2017]).
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department reversed the trial court’s decision and granted plaintiff’s motion for summary judgment as to his Labor Law § 200 and common-law negligence claims against Structure Tech. The Court also reversed the decision granting Sweeney’s motion for summary judgment on those claims. As for Structure, the court found that, as a subcontractor and statutory agent of the GC, Structure could be held liable for a dangerous condition on the worksite, which it created, or of which it had actual or constructive notice. The undisputed evidence established that a Structure employee was responsible for dislodging the baluster and allowing it to fall and strike plaintiff, thus conclusively establishing its liability. As for Sweeney, Structure’s superintendent testified that Sweeney’s superintendent instructed them to cut the baluster in the first instance. Accordingly, there was a question of fact as to whether Sweeney actually exercised supervisory control over the worksite so as to trigger liability under these claims.
 
Indemnity Issues in Labor Law (BFM)
The Court found an issue of fact as to Sweeney’s liability since it Sweeney’s superintendent who instructed Structure to cut the baluster that ultimately struck plaintiff. If credited, this testimony could support a finding that Sweeney actually exercised supervisory control over the worksite so as to trigger liability.
 
 

Sancino v Metropolitan Transp. Auth.  
June 25, 2020
Appellate Division, First Department

 
Plaintiff, an ironworker, was attempting to move a wheeled dumpster over an unfinished floor covered in portions by plywood slabs. As he reached a lip in the plywood, he heard a crack, and felt what he believed to be one of the wheels breaking. The dumpster became off balance and began to topple over, and when another site worker attempted to help, the dumpster toppled over onto plaintiff, allegedly injuring his toe. The trial court granted defendants’ summary judgment seeking dismissal of the Labor Law §§ 240(1) and 241(6) claims against them.
 
Labor Law § 240(1) (DRA)
The First Department declined to consider plaintiff’s arguments under Labor Law § 240(1) since he abandoned that claim by failing to oppose that aspect of defendants’ motion (see Ng v NYU Langone Med Ctr., 157 AD3d 549 [1st Dept 2018]; Josephson LLC v Column Fin., Inc., 94 AD3d 479 [1st Dept 2012]).
 
PRACTICE POINT:  If you don’t oppose a motion at the trial level you are precluded from opposing it on appeal.
 
Labor Law § 241(6) (MAS)
The First Department reversed and reinstated the Labor Law § 241(6) claim premised upon violations of Industrial Code regulations §§ 23-1.28(b), 1.5(c), and 1.7(e)(2). Regulation 1.7(e)(2) deals with debris in passageways and is viable here because the area where the accident occurred constituted a passageway (see Rossi v 140 W. JV Mgr. LLC, 171 AD3d 668 [1st Dept 2019]).
 
As for regulation 1.28(b), which pertains to hand-propelled vehicles, and 1.5(c), which prohibits use of machinery or equipment that is not in good repair and safe working conditions, the Court held defendants failed to make a prima facie showing that the wheeled dumpster was not defective (see Ahern v NYU Langone Med. Ctr., 147 AD3d 537 [1st Dept 2017]).
 
 

Modugno v Bovis Lend Lease Interiors, Inc.
June 24, 2020
Appellate Division, Second Department

 
Plaintiff’s employer, Yonkers, was retained as the excavation and foundation contractor for a construction site that was part of the World Trade Center. The site was an open hole, two football fields in length, one football field in width, and 90 feet below grade level, the surface of which was uneven and covered with rocks and boulders and “a lot of mud.” Plaintiff claimed the bottom of the hole was always muddy, but that there had been a heavy rainstorm two days prior and he had never seen the ground conditions in the hole as muddy as they were on the day of his incident.
 
Plaintiff was working in the hole “stripping” three-foot by six-foot metal forms from its concrete slab, when he slipped and fell allegedly because of the large amount of mud on the ground in the hole. The trial court denied the defendants motion for summary judgment seeking dismissal of the Labor Law § 200 and common-law negligence claims.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed denial of defendants’ motion for summary judgment as to the Labor Law § 200 and common-law negligence claims; finding that plaintiff’s accident arose from a dangerous premises condition, not from the method and manner of the work. Defendants’ motion was properly denied because they failed to demonstrate a lack of actual or constructive notice of the dangerous condition.
 
PRACTICE POINTER: As a reminder, there are TWO broad categories of actions that implicate the provisions of Labor Law § 200. The first involves injuries arising from the method and manner of the work. To be held liable under this category, a property owner must possess the authority to supervise or control the means and methods of the work. The second involves injuries arising out of alleged dangerous or defective conditions on the premises where the work is performed. In order to be held liable under this category, the evidence must show that the property owner either created a dangerous or defective condition or had actual or constructive notice of it without remedying it within a reasonable time.  Both categories need to be considered in every § 200 claim.
 
 

Stewart v ALCOA, Inc.
June 25, 2020
Appellate Division, Second Department

 
Plaintiff’s employer entered into a contract with the general contractor, Fluor Enterprises for construction work at Alco’s property. On the day of plaintiff’s accident, he was working in a building being reconstructed after the prior structure had been destroyed by fire. The reconstruction was not yet complete and openings in the partly built walls permitted snow and ice to enter the building. Plaintiff testified it was snowing heavily on the day of the accident and that the snowstorm created a “new coating” of snow on top of old ice from a storm that had taken place two or three days before; the old ice was “all over the plant” but was difficult to see because it was covered by the new snow.
 
Plaintiff was assigned to brush snow off steel beams that were stored in the building. After he worked on this task for 10-15 minutes, he had a “near miss” when he slipped on ice under the snow. He decided that the area should be salted, and walked toward his employer’s safety manager, who was about 200 feet away, to tell him salt was needed. Before reaching the manager, he slipped and fell on the icy surface under the new snow. The trial court denied defendants’ motion for summary judgment seeking dismissal of the complaint.
 
Labor Law § 241(6) (MAS)
Plaintiff’s § 241(6) claim was based on Industrial Code regulation § 23-1.7(d), which provides, as relevant here, that “[e]mployers shall not suffer or permit any employee to use a floor, passageway [or] walkway … which is in a slippery condition. Ice, snow … and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing.”
 
Recover under regulation 1.7 is precluded “when the injury is caused by an integral part of the work being performed” or by the “very condition [the plaintiff] was charged with removing.” Here, the Second Department rejected defendants’ argument that plaintiff fell in an “open area” that does not fall under regulation 1.7(d) and held that plaintiff’s accident took place on a “floor, passageway [or] walkway” within the meaning of that regulation. Therefore, the trial court correctly denied defendants’ motion for summary judgment seeking dismissal of this claim.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed denial of defendants’ motion for summary judgment. Although we don’t often see a Storm-in-Progress defense raised in a Labor Law case, Storm-in-Progress is an available defense to a § 200 claim based on the presence of ice and snow as a dangerous condition on a worksite. When a dangerous condition is caused by a storm in progress, those who possess or control real property are allowed a reasonable period of time after the cessation of a storm in which to take protective measures to correct storm-created hazardous ice and snow conditions. This means, when a defendant produces evidence that a plaintiff fell on snow and/or ice during or immediately after such a storm, plaintiff, in order to avoid summary judgment, must produce evidence that raises an issue of fact as to whether dangerous snow and/or ice that contributed to the accident existed prior to that storm so as to provide actual or constructive notice to the defendant.
 
Here, the Court determined that plaintiff made such a showing. Plaintiff testified that it was snowing heavily on the day of the accident and that the snowstorm created a "new coating" of snow. But that snow was on top of old ice from a storm that had taken place two or three days before. Further, while defendants offered evidence a third-party contractor was responsible for the general removal of snow and ice from the jobsite; they submitted no evidence establishing whether this contractor had cleared snow and ice from the site before plaintiff's accident occurred. Based on plaintiff's claims that he fell on old ice, combined with the admissions of defendants' witnesses that snow had fallen earlier that week, defendants’ uncertainty as to whether snow and ice had been cleared from the accident site before the storm began, and the uncertainty as to whether plaintiff fell on new snow or old ice, the Court held there was a triable issue of fact which precluded summary judgment.

 

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)(iv), which prescribes certain protective measures when work is being performed at particular heights above ladder footing, is sufficiently specific to support a Labor Law § 241(6) cause of action.

Montalvo v J. Petrocelli Const., Inc., 8 AD3d 173, 780 NYS2d 558 (1st Dept 2004);
 
Arigo v Spencer, 39 AD3d 1143, 834 NYS2d 895 (4th Dept 2007);
 
Kwang Ho Kim v D & W Shin Realty Corp., 47 AD3d 616, 852 NYS2d 138 (2d Dept 2008);
 
Deshields v Carey, 69 AD3d 1191, 897 NYS2d 254 (3d Dept 2010);
 
Melchor v Singh, 90 AD3d 866, 935 NYS2d 106 (2d Dept 2011);
 
Torres v Perry Street Development Corp., 104 AD3d 672, 960 NYS2d 450 (2d Dept 2013);
 
Grant v New York, 109 AD3d 961, 972 NYS2d 86 (2d Dept 2013).

Montalvo held reg has concrete specifications that are sufficiently specific to support a Labor Law § 241(6) claim.

Arigo held reg only applies when work is performed from a ladder and is inapplicable where the ladder was used as a means of access to the building’s roof and not as a platform for work.

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.

Deshields held reg applied when the closed A-frame ladder that was leaning against a spherical boiler collapsed as π attempted to climb it.

Melchor held reg applied where π was working at a height at which certain protective measures were required but not provided.

Torres held reg potentially applicable where π was allegedly injured when the ladder he walked past with a worker standing on it fell on him; the fact that π was not on the ladder at the time of his accident did not preclude his recovery.

Grant held reg applied where π fell from an unsecured ladder.

 

 

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]

 

 

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