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Kolakowski v 10839 Assoc.
July 2, 2020
Appellate Division, First Department
Plaintiff, an employee of W & T, allegedly slipped and fell on ice while working on the roof of a residential building owned by 10839 and managed by Joseph P. Day. American Pipe is the parent company of New York Wood Tank and both companies have the same owner and occupy the same space. On the morning of the accident, plaintiff was directed to go to the building to repair a frozen pump line and intended to use a torch to defrost the pipe.
He climbed a permanently affixed ladder from the lower roof to the upper roof, where the wood tanks were located. Once he reached the upper roof, he side-stepped to the right for about 10-15 steps, while holding onto a metal beam in front of him with both hands, and then he allegedly slipped on ice, lost his balance, and fell backwards down to the lower roof.
Michael Keane, the superintendent of the building, had never seen workers use safety harnesses on the roof of the building. There were approximately three feet between the water towers and the edge of the upper roof where plaintiff fell. On the day of the accident, plaintiff told him that he stepped on the gutter and lost his balance. Mr. Keane testified that he did not give plaintiff instructions as to what he was to do or how to do it, and he confirmed that plaintiff came to the building on the day of the accident to continue the work from the previous week.
Steven Silver, the owner of American Pipe, testified that American Pipe builds, cleans, repairs, and replaces wood and steel tanks. Mr. Silver signed an Indemnity Agreement with Joseph P. Day which was not backdated to a date prior to the accident. W & T purchased two safety harnesses for plaintiff to keep in his company van at all times and required its workers to wear their safety equipment almost every day. When Mr. Silver asked plaintiff if he was tied off at the time of the accident, plaintiff responded in the negative. Mr. Silver never told plaintiff that he did not need a safety harness. After the accident, he found two safety harnesses in plaintiff'’s work van.
The trial court denied defendants’ motion for summary judgment dismissing the complaint and on its third-party claim for contractual indemnification, denied plaintiff’s cross motion for summary judgment on the issue of liability on his Labor Law § 240(1) claim, and granted third-party defendants’ separate summary judgment motions to dismiss the contractual indemnity claim.
 Labor Law § 240(1) (DRA)
The First Department affirmed; finding that summary judgment in any party’s favor on plaintiff’s Labor Law § 240(1) claim is precluded by issues of fact as to whether, and to what extent, plaintiff’s employer directed him to use a safety harness, and whether plaintiff’s failure to abide by any such direction rendered him a recalcitrant worker and, thus, the sole proximate cause of his accident (see Biaca-Neto v. Boston Rd. II Housing Development Fund Corp, 34 N.Y.3d +1166, 1168 [2020]).
PRACTICE POINT: Where, as here, there are differing versions of what direction or instruction the plaintiff was provided about the use of safety devices, a question of fact will result.
 Labor Law § 241(6) (MAS)
The First Department likewise found an issue of fact as to whether plaintiff was the sole proximate cause of his accident (see Gurung v Arnav Retirement Trust, 79 A.D.3d 969, 970 [2d Dep’t 2010]). Although defendants improperly raised this argument for the first time on appeal, the Court declined plaintiff’s invitation to search the record and grant him summary judgment on this issue of liability under this claim.
 Labor Law § 200 and Common-Law Negligence (ESB)
The First Department also determined the defendants failed to meet their burden of proof on the motion as to Labor Law § 200 and common-law negligence. As this was a case involving a dangerous condition on the premises (rather than means and methods), defendants needed to demonstrate a lack of notice. Defendants, however, submitted no evidence of the cleaning schedule for the site, or when the site had last been inspected prior to the incident. Instead, they merely pointed to gaps in plaintiff’s proof, which was insufficient to meet defendants’ initial burden on summary judgment.
 Indemnity Issues in Labor Law (BFM)
An indemnification clause in a contract executed after a plaintiff’s accident may be applied retroactively where the evidence establishes, as a matter of law, that the agreement pertaining to the contractor’s work was made as of a pre-accident date, and that the parties intended that it apply as of that date”
Here, third-party defendant did not execute an indemnification agreement with defendants until three days after plaintiff’s accident and there was no evidence in the record to suggest that the agreement was intended to apply retroactively. Accordingly, the Court dismissed the defendants’ contractual indemnification claim.
Yaguachi v Park City 3 & 4 Apts., Inc.
July 1, 2020
Appellate Division, Second Department
Park City owned the subject apartment buildings and contracted with PBR to renovate the external balconies of the buildings. Plaintiff, during the course of his employment, fell thirty feet from a balcony at an apartment complex in Queens, sustaining personal injuries when the hook which held the safety cable to the wall came out, causing plaintiff to fall. The trial court denied plaintiff’s motion for summary judgment on the Labor Law § 240(1) claim.
Labor Law § 240(1) (DRA)
The Second Department affirmed; finding that, as to Park City and PBR, plaintiff demonstrated, prima facie, that Park City owned the subject apartment buildings, that it contracted with PBR to renovate the external balconies of the buildings, and that the hook which held the safety cable to the wall came out causing plaintiff to fall to the ground and sustain injuries. In opposition, however, the Court held Park City and PBR raised triable issues of fact as to the circumstances under which plaintiff’s accident occurred, whether the hook holding the safety cable actually failed, and whether plaintiff was acting outside the scope of his authority by working on the balcony. As to Bridging, the Court held plaintiff failed to meet his prima facie burden demonstrating his entitlement to judgment as a matter of law because he failed to establish that Bridging was subject to liability either as an owner, general contractor, or statutory agent.
PRACTICE POINT: Where, as here, there is a question of fact as to how the accident occurred, and only one of the versions would be a violation of the Labor Law, the court must find a question of fact. Additionally, where the plaintiff is injured while engaged in activity beyond the scope of his job duties, Labor Law shall not apply. A party which is neither an owner nor a contractor can be considered a valid defendant as an agent of the owner or contractor only when that party has authority to supervise, direct, or control the injury producing work.
Martin v Hillside Enters., LLC
July 15, 2020
Appellate Division, Second Department
Plaintiff, a demolition worker, allegedly sustained injuries when he fell from a scaffold while clearing debris from a ceiling after a fire damaged a condominium building owned by Hillside. The trial court granted plaintiff’s motion for summary judgment on the issue of liability on his Labor Law § 240(1) claim.
Labor Law § 240(1) (DRA)
The Second Department reversed; finding the evidence submitted by plaintiff in support of the motion failed to demonstrate as a matter of law that the accident occurred in the unit of the building owned by Hillside. Plaintiff’s verified complaint contained only a conclusory assertion that the accident occurred in that unit, and his deposition transcript, which he submitted along with his motion, showed that he was unable to identify that unit as the location where the accident took place . Moreover, the Court found Hillside’s submission raised a triable issue of fact as to whether it owned the portion of the premises where the accident occurred.
PRACTICE POINT: Never forget the burden obligation on the moving party. Here the plaintiff failed to provide the court with proof, in admissible form, that the plaintiff sustained his injury while in the unit owned by the defendant. The defendant did not move to have the case dismissed as they likely were also unable to prove it did not occur on their property. Recall the differing level of proof needed in Federal Court, where the defendant could have met his burden by demonstrating the plaintiff would be unable to prove that the defendant owned the property where the accident occurred, and been awarded summary judgment.
Wetter v Northville Indus. Corp.
July 15, 2020
Appellate Division, Second Department
Plaintiff, an employee of nonparty Hallen Construction, allegedly was injured, while setting up a detour 1,500 feet from defendants’ excavation site, when he jumped off a truck’s flatbed to set up a traffic sign and landed in a roadside ditch. Defendants, who own, maintain, and service an underground pipeline located in Suffolk County, hired Hallen Construction to assist in excavating a section of the roadway covering the pipeline and to set up any necessary traffic detours, diversions, and warning signs during this work. The trial court granted defendants’ motion for summary judgment dismissing the Labor Law § 241(6) claim predicated on an alleged violation of Industrial Code (12 NYCRR) regulation § 23-9.7(e).
Labor Law § 241(6) (MAS)
Industrial Code regulation § 23-9.7(e) provides that “[n]o person shall be suffered or permitted to ride on running boards, fenders or elsewhere on a truck or similar vehicle except where a properly constructed and installed seat or platform is provided.” Here, plaintiffs contend that this regulation requires the platform of a truck to have safe means of ingress and egress, such as a ladder.
The Second Department held this regulation, entitled “Riding”, only regulates transporting persons in a truck and does not apply to injuries suffered while exiting a vehicle (see Vargas v State of New York, 273 AD2d 460, 461 [2d Dept 2020]). Here, the Court held defendants established that plaintiff was injured when he jumped from the flatbed of the stopped truck to set up a traffic sign, not while riding in the truck, and thus defendants established the regulation does not apply to this case. Moreover, the Court noted plaintiffs’ interpretation of the regulation was contrary to the plain meaning of the regulation.
Casilari v Condon
July 22, 2020
Appellate Division, Second Department
Plaintiff was injured when he fell 8 to 10 feet from a deck to the ground, while removing a window at a single-family home owned by defendant, who was not residing at the premises during the renovations, nor present on the date of the accident. Plaintiff allegedly was standing on a five-gallon bucket and using a crowbar to remove the window from the house’s exterior wall. According to plaintiff, as he lifted the window out of the wall, he stepped backwards and fell through an unguarded stairwell opening in the deck, from which the staircase had been removed. According to defendant, he was last present at the site about two days prior to the accident, at which time the stairwell opening was covered, and the stairs were still in place.
The trial court, as relevant here, denied defendant’s motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims.
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department reversed the trial court decision and dismissed the Labor Law § 200 and common-law negligence claims; finding defendant met his burden of proof as to means and methods, by demonstrating that he did not exercise supervision or control over the performance of the work giving rise to the accident. Further, to the extent the accident could be viewed as arising from a “dangerous or defective condition in the premises,” defendant demonstrated that he did not create or have actual or constructive notice of the alleged dangerous condition. In opposition, the plaintiff failed to raise a triable issue of fact.
Interestingly, the trial court considered the affidavit of a nonparty witness submitted by the plaintiff in opposition to the defendant’s motion. The Appellate Divisionheld that the affidavit improperly was considered, as the nonparty witness was never disclosed by plaintiff in discovery, plaintiff failed to offer any excuse for the failure to disclose the witness, and nothing that transpired during discovery would have alerted defendant to the potential significance of the non-party witness’s testimony.
Kickler v Dove-Tree Greenery, Inc.
July 22, 2020
Appellate Division, Second Department
The Rastellis hired contractors to install a pool in the backyard of their property. After the pool was installed, the contractors were tasked with building a retaining wall and adding fill to level the backyard. For this purpose, the contractors hired nonparty White Wolf to procure and deliver several loads of fill material to the Rastellis’ residence. Plaintiff, a driver employed by White Wolf, delivered two loads of fill to the Rastellis’ residence in a truck. He delivered the first load of fill without incident. While later attempting to dump the second load of fill in front of the first, the ground beneath the right rear tire of the truck gave way, and the truck tipped on its side. Plaintiff was still inside the cab of the truck, with his hands on the controls, when the truck tipped over.
The trial court granted the contractors’ motion for summary judgment dismissing the Labor Law § 240(1) claim and denied plaintiff’s cross-motion for summary judgment on that claim.
Labor Law § 240(1) (DRA)
The Second Department affirmed; finding the contractors established, prima facie, that plaintiff was not exposed to any risk against which safety devices of the kind enumerated in Labor Law § 240(1) would have protected him (see Garcia v Market Assoc., 123 AD3d 661, 663; Shaw v RPA Assoc, LLC, 75 AD3d 634, 636; Wynne v B. Anthony Constr. Corp., 53 AD3d 654). In opposition, the Court held plaintiff failed to raise a triable issue of fact.
PRACTICE POINT: This is just a scenario you need to remember for further use. When the truck tips over, it is not a falling object, and the driver is not a falling worker.
Lamela v Verticon, Ltd.
July 23, 2020
Appellate Division, Third Department
Plaintiffs were injured when an unsecured wall collapsed, displacing a motorized scissor lift that plaintiffs operated while performing demolition work. During the course of their work, plaintiffs moved the lift in close proximity to the unsecured wall. Plaintiffs were employed by third-party defendant, Lamela, and the accident occurred in a warehouse that was owned by defendant Satin. Defendant Verticon, was the general contractor and contracted with Lamela, as well as defendant Accurate to serve as subcontractors. Employees of Accurate’s subcontractor, defendant Cooler, were constructing the wall that collapsed when the accident occurred.
In July 2014, the trial court granted plaintiffs’ motion for partial summary judgment, finding Verticon and Satin strictly liable pursuant to Labor Law § 240(1). Defendants, thereafter, agreed to a settlement of plaintiffs’ claims – specifically, defendants and plaintiffs agreed on a total payment of $3.2 million, to be apportioned under an agreement by which Verticon and Satin would pay $2,199,999, Accurate would pay $1 and Cooler would pay $1 million. Although Lamela did not participate in or contribute to the settlement, its counsel was present at the time the settlement was announced and objected. Releases were thereafter signed providing that plaintiff James Lamela receives $500,000 and plaintiff Robert Lamela receives $2.7 million.
Verticon and Satin filed an amended third-party complaint seeking contractual indemnification against Lamela based upon the indemnity clause in the contract, which required Lamela to identify both Verticon and Satin. Lamela’s answer asserted crossclaims against Verticon for common-law indemnity and contribution. The trial court granted that portion of Satin’s motion for contractual indemnity against Lamela and denied Lamela’s motion for summary judgment dismissing the amended third-party complaint.
Lamela then remitted $2 million to Satin, thereby satisfying its contractual indemnity obligation, and the trial court granted Verticon’s motion for summary judgment dismissing Lamela’s crossclaims on the grounds that the indemnity provision contained in the contract between Lamela and Verticon bars Lamela from seeking common-law indemnity.
Indemnity Issues in Labor Law (BFM)
Despite its contractual obligation to indemnify Verticon, Lamela attempted to assert a common-law claim against Verticon. The Court examined the contract and determined that the provision did not provide for indemnification flowing the other way, from Verticon to Lamela, as was being sought by Lamela. The Court held that, as the subject of indemnification was clearly contemplated and expressly addressed by the parties in their contract, there can only be a one-way obligation to indemnify, by Lamela as the indemnitor, and any reciprocal obligation was extinguished.
Walkow v MJ Peterson/Tucker Homes, LLC
July 17, 2020
Appellate Division, Fourth Department
Plaintiff fell from a roof during the course of his work installing siding on a residential construction project. The county land records confirm that ownership of the property passed from the developer to the homeowners and that it was the homeowners, not M.J Peterson/Tucker Homes, who owned the subject property. The homeowners hired MJ Peterson/Tucker Homes to serve as a project coordinator, not as a general contractor. At the time of the accident, plaintiff was working on a second-story dormer, located above a porch, applying Tyvek paper to the left side of the dormer.
Two ladders had been set up on the porch roof to provide access to the second-story roof and dormer. In order to reach the front of the dormer, plaintiff, who was perched on one of the ladders, moved laterally from that ladder to the second ladder, which was positioned about two feet away. After successfully transferring to the second ladder, plaintiff started to ascend it when the second ladder "kicked out" from under him, causing him to fall to the ground. Plaintiff’s job, at that moment, was only to help wrap the six-inch portion of the paper around the left front edge, and it was not to apply the Tyvek paper to any other portion of the dormer's front side. The trial court granted plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim and denied defendants’ cross-motion for summary judgment dismissing the complaint.
Labor Law § 240(1) (DRA)
The Fourth Department reversed the trial court and affirmed as to defendants’ cross-motion; finding that Tucker Homes was an owner because it had an equitable interest in the property by virtue of provisions in its contract with the titleholders that permitted it to take possession of the deed and obtain legal title to the property if the titleholders did not pay for the home’s construction. It also was the only entity that had a contractual relationship with the contractors, and was the only entity that could insist that the contractors adhere to safety practices and obtain insurance. The titleholders, by contrast, had no contractual relationship with contractors and did not obtain any insurance on the project. Tucker, as the only party with both a property interest and the right to insist on safety practices, was an owner within the meaning of the Labor Law and was also found to be a “general contractor” based on its power to enforce safety standards and, essentially, select the responsible subcontractors to perform work on the project. Plaintiff also established that Tucker was a statutory agent and defendants did not raise an issue of fact in response to these points.
Even though the Court found that defendants were proper Labor Law defendants, it held the trial court erred in granting plaintiff’s motion as to § 240(1), because plaintiff failed to meet his initial burden on that part of the motion, as issues of fact exist whether plaintiff was the sole proximate cause of his accident (see Fazekas v Time Warner Cable, Inc., 132 A.D.3d 1401, 1403[4th Dept 2015]). The Court found plaintiff’s submissions raised an issue of fact because they included evidence that plaintiff “had adequate safety devices available; that he knew both that they were available and that he was expected to use them; that he chose for no good reason not to do so; and that had he not made that choice he would not have been injured” (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40 [2004]; see Fazekas, 132 AD3d at 1403). Here, the Court found the disputed facts included the scope of plaintiff’s task, whether he was instructed not to use the second ladder to access the front of the dormer, and whether the first ladder was adequate to allow him to reach that part of the dormer which his task required him to reach.
Justices Curran’s and Troutman’s dissent concurred in the ownership, general contractor, and agent portion of the opinion; however, they disagreed with the majority’s conclusion that there are issues of fact whether plaintiff’s conduct was the sole proximate cause of the accident. The dissent found that because the majority concluded that plaintiff did not meet his initial burden on the motion with respect to the Labor Law § 240 (1) claim since his own submissions raised an issue of fact whether plaintiff’s decision to move to the second ladder was the sole proximate cause of his injuries, it tacitly concluded that there is a question of fact whether the first ladder was an available safety device that plaintiff, for no good reason, chose not to use when he transferred to the indisputably unsafe second ladder to reach the front of the dormer.
The dissent found that as there was no proof that the first ladder was appropriate and thus the plaintiff’s failure to use that ladder, and use the second ladder, which shifted, his selection of the second ladder could not be the sole proximate cause of the injury. The dissent further held that even if plaintiff’s employer told him not to use the second ladder, the mere ”failure to follow an instruction by an employer . . . to avoid unsafe practices does not constitute a refusal to use available, safe and appropriate equipment” Fazekas v Time Warner Cable, Inc., 132 A.D.3d 1401, 1403 [4th Dept 2015]).
PRACTICE POINT: This is a split decision and we will be watching to see if it gets to the Court of Appeals. The split is based on the whether or not the first ladder was an appropriate safety device and thus, whether a question of fact exists. Absent any expert opinion this outcome may have been inevitable. The usefulness of an expert affidavit is, again, obvious where one can be obtained.
Labor Law § 241(6) (MAS)
The Fourth Department reversed the trial court as to the Labor Law § 241(6) claim and granted defendants’ cross-motion to dismiss this claim predicated on alleged violations of Industrial Code regulations 23-1.7(d), 1.21(b)(4)(iv) and (v) as well as 1.21(b)(3)(iv) and (b)(4)(i) since plaintiff abandoned those claims at oral argument. Plaintiff made no specific arguments concerning 1.7(d) and defendants established there was no evidence of a slippery condition at the work site at the time of plaintiff’s accident. The Court held plaintiff failed to meet his burden as to 1.21(b)(4)(iv) and (v) because he never addressed those provisions in his motion papers and defendants established the ladder did not “side slip” but instead kicked straight out from under him.
Defendants also met their burden with respect to regulation 1.21(b)(4)(ii), which requires that “[a]ll ladder footings shall be firm. Slippery surfaces … shall not be used as ladder footings.” However, the Court held plaintiff’s expert raised an issue of fact by averring that the roofing tiles constituted a slippery surface within the meaning of that regulation.
Labor Law § 200 and Common-Law Negligence (ESB)
The Fourth Department modified the trial court order to deny plaintiff’s motion as to Labor Law § 200 and common-law negligence and to grant Tucker Homes’ and RGGT’s motions as to those claims. It held those defendants met their initial burden by submitting evidence that neither Tucker Homes nor RGGT had the authority to direct or control plaintiff’s work on the site. Moreover, the plaintiff failed to offer any substantive opposition to that portion of the defendants’ motion. The Court held that plaintiff’s general reference to the cross motion in the “[w]herefore” clause of his opposition was insufficient to raise an issue of fact because he never addressed the defendants’ factual claims as to those causes of action.
PRACTICE POINT: It is important to remember that failing to oppose a motion or portion of a motion can be considered an admission of or consent to the movant’s entitlement to that specific relief.
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