Labor Law Pointers
Volume V, No. 10
Wednesday, August 3, 2016
A Monthly Electronic Newsletter Addressing
New York State Labor Law
Decisions and Trends
From the Editor:
Do you have a situation; we love situations.
This month we are in the heart of the summer doldrums and thus have very few cases to report on. This leaves us with more time to tackle other issues, and include more photos. I have attached an article I wrote with one of our law clerks, Alyssa Jones, on the new regulation OSHA has enacted to regulate Silica exposure. While not directly labor law related, it does, and will, have an impact on those involved in the construction business. Those are my clients and yours.
We continue to make ourselves available for any training your teams may want in the labor law and risk transfer arena. Please feel free to call or email and we will be pleased to set something up for you, either in person or via a webinar.
In addition we are here, or at least available 24 hours a day to answer your labor law and risk transfer questions, feel free to reach out anytime. We have a 24 hour response team in place and we will investigate any accident, construction of otherwise, once we get the call. We have developed a dedicated line for the Emergency Response Team at 716-849-8948. That number will always be forwarded to me, Mike Perley, Jody Briandi or Todd Bushway and we will either answer the call or get back to you immediately. Sometimes immediate investigation of a serious accident is the best defense. I run our labor law 24 hour response team and have for several years and found it has helped immensely in several cases. We have been on site, across the state, ahead of OSHA on a few occasions and gotten statements from witness while the event is fresh in their minds which proved to be very useful.
For those of you who are readers of our sister publication, Coverage Pointers, you know that Dan Kohane revels in letting everyone know that he lives on the Canadian shore during the summer and, when not out of town as he so often is, likes to write his cover note looking out at the lake. This month I am lucky enough to be doing the same thing and he is correct, this is a slice of heaven. Our cottage is a bit further down the shore so my drive to the office is twice as long, it takes me 25 minutes to get to work from here in the morning, but the drive, with the sun over the lake is awesome. As I tell my kids, if you are lucky enough to be at the beach, you are lucky enough. By the way, if you do not subscribe to Dan’s newsletter, Coverage Pointers, you should consider doing so. His team covers all things coverage and risk transfer related, along with other issues. He also writes an awesome cover note. If you are interested drop Dan a note at [email protected] and he will add you to the distribution list. The cost is exactly zero, providing an enviable return on investment.
With that I move on to my favorite portion of the newsletter, photos and questions.
In the below photo, if the future plaintiff is in an area where the laws of physics apply he will fall as soon as he cuts through that tree. Assuming he was not warned not to cut in this manner, will he have a valid labor law case? Answer follows the photo.
As a tree is not a building or structure; this cannot be a labor law case. To qualify as a building of structure it must be composed of component parts, which a tree is not. See the statute below.
§ 240. Scaffolding and other devices for use of employees
1. All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.
For this one, I had a problem of laughing long enough that I could not come up with a question other than how many men and farm implements does it take to fix a telephone pole. I finally came up with this question: if the man driving the tractor is just a farmer who lives next door and simply came out to help the crew working on the pole because they, obviously, needed some help, could he be a valid labor law defendant? Answer below.
I say no he can’t. He is not the type of individual considered to be a contractor under the statue. He has no authority to supervise, direct or control the plaintiff or the means and methods of the work being done. As long as he does not own the land or actually supervise direct or control the work then he is not going to be a valid labor law defendant.
That is it for this month, enjoy your summer and look for us in September.
David R. Adams
Hurwitz & Fine, P.C.
424 Main Street
Suite 1300 Liberty Building
Buffalo, New York 14202
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 or unsubscribe, please send an e-mail to [email protected] or call the Editor/Labor Law Team Leader David R. Adams directly at (716) 849-8916.
July 5, 2016
Appellate Division, First Department
Plaintiff, the foreman for third-party Shaw Gold Construction, went to talk to a coworker operating a Benford motorized wheelbarrow stopped near the top of a hill. Plaintiff stood on the Benford to talk to his coworker when the Benford began sliding down the hill and in the process plaintiff jumped or was thrown from the Benford. He went down fifteen feet before stopping at the bottom of a concrete sand filtration system that had been cut into a level spot on the hillside.
The trial court granted plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim, and denied Horizons at Ridge Hill and Azorim at Ridge Hill’s cross-motions for summary judgment dismissing the complaint alleging §§ 240(1), 241(6), 200 and common-law negligence against them.
The First Department reversed the trial court’s decision to grant plaintiff summary judgment on his Labor Law § 240(1) claim, finding issues of fact as to whether plaintiff’s incident was the result of a gravity-related risk or part of the using and ordinary dangers of the work site, citing to Settimo v City of New York, 61 AD3d 840, 878 NYS2d 89 (2d Dept 2009).
PRACTICE POINT: These cases are always difficult to determine as many of these dangers, while being at least partially gravity-related, are also the common hazards of a construction site. When the court is in doubt they, particularly in the First and Second Departments, will leave it up to the jury to decide if the hazard was a part of the usual and ordinary hazards of a construction work site. This case highlights the need for an expert to opine that it is, or is not, an ordinary hazard to support your position in your Summary Judgment motion.
With regard to plaintiff’s Labor Law § 241(6) claims, the First Department found numerous sections of the Industrial Code which plaintiff pleaded violations of (i.e., sections 23-1.5, 23-1.7(a) and 1.7(c) through (h), 23-1.8, 23-1.23, 23-2.2, 23-4.1, 23-4.3, 23-4.4, 23-4.5, 23-9.2, 23-9.4, 23-9.5, and 23-9.7) either insufficiently specific or inapplicable to the facts here
However, consistent with its finding on the § 240(1) claim, the Court found issues of fact concerning the exact nature of the hazard facing plaintiff, including whether it was a hazardous opening within the meaning of § 23-1.7(b), whether safety devices such as those contemplated in §§ 23-1.15, 23-1.16, and 23-1.17 could have protected plaintiff and whether the excavation for the sand filtration system conformed with the requirements of § 23-4.
The First Department held that in light of its decision that issues of fact exist here as to whether plaintiff's accident was the result of a gravity-related risk or part of the usual and ordinary dangers of the work site, the trial court properly denied defendants’ motion to dismiss the § 200 and common-law negligence claims.
July 7, 2016
Appellate Division, First Department
The trial court granted defendant Standard Waterproofing’s motion for summary judgment dismissing plaintiff’s complaint alleging violations of Labor Law §§ 240(1), 241(6), 200 and common-law negligence.
The First Department held Standard Waterproofing established prima facie that it was not the owner or the general contractor or the statutory agent of either the owner of the general contractor for the purposes of the Labor Law and that it did not supervise or control the injury-producing work citing to Kennan v Simon Prop. Group, Inc., 106 AD3d 586, 966 NYS2d 378 (1st Dept 2013). The Court held the contractual provisions in the cost breakdown letter plaintiff relies on in support of his opposition refers solely to Standard Waterproofing’s obligations in performing its contracted aluminum capping and cladding work; they do not establish that Standard Waterproofing had any supervisory control over the worksite.
PRACTICE POINT: Again, the importance of obtaining the contracts to determine if there is any authority to supervise, direct or control the work of the plaintiff is critical in evaluating the case from the start. Absent any authority to supervise, a defendant is not a valid labor law defendant.
July 28 2016
Appellate Division, First Department
Plaintiff testified he fell when the scaffolding he was working on moved while working in a boiler room at the Hermitage Condominium. The trial court granted plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim against defendant Bar Construction, and denied defendants’ motion for summary judgment dismissing the §§ 240(1) and 241(6) claims against 41 West 72 LLC and the §§ 240(1), 241(6), and 200 claims against Property Markets.
The First Department reversed the trial court’s decision to grant 41 West 72 LLC’s motion for summary judgment because at the time of the accident, the “owner” of the condominiums’ common elements was defendant the Board of Managers of the Hermitage Condo (the “Hermitage Board”), not 41 West LLC, the entity sponsoring the conversion of the building to condominiums in 2001. Moreover, the boiler was, at the time of plaintiff’s incident, owned collectively by all of the owners of the building’s 130 units.
As a result, the majority Court held it was the Hermitage Board, not 41 West LLC, who exercised exclusive control over the building’s common elements and entered into the contract for the renovation work leading plaintiff’s injury. The Court found the Hermitage Board liable under § 240(1) because plaintiff’s testimony established prima facie the statute was violated and the violation was a proximate cause of his injuries. As to Property Markets, however, the Court found no evidence that they ever owned or controlled the premise where the incident occurred.
The Court found an additional violation of the statute in light of Bar Construction’s foreman’s admission that the first level of scaffolding did not have middle or top guard rails, relying on Ritzer v 6 E. 43rd St. Corp., 57 AD3d 412 (1st Dept 2008). The Court also rejected defendants’ sole proximate cause or recalcitrant worker argument “since plaintiff’s fall was caused in part by the fact that the scaffold was not properly secured and was not equipped with guard rails”, citing to Boyd v Schiavone Constr. Co., Inc., 106 AD3d 546, 548, 965 NYS2d 117 (1st Dept 2013).
The dissent, authored by Justice J. Gische, argues that 41 West LLC should be subject to Labor Law § 240(1) liability because 41 West LLC continued to own a number of individual units in the building and that each owner of an individual condominium unit is an “owner” of the condominium’s common interest as well.
The majority points out, however, the dissent’s reasoning is sharply at odds with the expectations of buyers of condominium units, who are led to believe that risks and liabilities arising from the common elements will be handled on their behalf by the board of managers, a body that, as noted by the dissent, is funded entirely by common charges and assessments paid by the unit owners.
PRACTICE POINT: When representing a condominium entity, be it the unit owner, the board, the association or a different associated entity, it is critical to read the contracts and other ownership documents to determine which entity will be responsible for the common areas. It differs from entity to entity and any attempt to have a hard and fast rule if fraught with danger.
July 28, 2016
Appellate Division, First Department
Plaintiff fell through an open trap door on defendant Heritage Hills’ property. The trial court granted Heritage Hills’ motion for summary judgment dismissing plaintiff’s Labor Law §§ 200 and common-law negligence claims as against it, and awarding it summary judgment on its cross-claims for contractual indemnification and breach of a contractual obligation to procure insurance against defendant MJC.
The First Department held that the open trap door through which plaintiff fell was not a latent hazard, and defendant Heritage Hills (the owner) failed to make a prima facie showing that it did not create or have notice of the allegedly dangerous condition. Although an issue of fact exists as to Heritage Hills' negligence under the common law and Labor Law § 200, plaintiff did not appeal from the order dismissing those claims, and defendant MJC (the contractor) is not aggrieved by the dismissal of those claims, the claims will not be reinstated.
Indemnity Issues in Labor Law (SEP)
Despite the fact that Heritage Hills negligence remains unresolved, the Court noted that, to the extent not negligent, it was entitled to contractual indemnification from MJC. Recall, under 5-322.1 of the General Obligations Law one cannot be indemnified for its own negligence. Thus, although Heritage Hills may be 100% responsible for the incident, it is entitled to indemnity for any portion of negligence that is not assigned to them.
Heritage Hills also sought damages based upon the argument that MJC failed to procure insurance on its behalf. MJC, in response, provided evidence that it purchased a policy with an additional insured endorsement providing “any person or organization to whom the Named Insured has agreed by written contract to provide coverage.” As part of its motion, Heritage Hills submitted no evidence that actually show it was actually uninsured. As such, its application was denied.
July 27, 2016
Appellate Division, Second Department
Plaintiff, a laborer, allegedly fell one story through a plywood-covered hole in the floor of a ramp at a construction site owned / developed / managed by Broadway Develop, Broadway Affordable, and Broadway Residential (collectively “the owners”). The general contractor was Congress Builders. Broadways Affordable and Residential entered into a Consultant Agreement with PSS wherein PSS agreed to provide “loss control and safety consulting services” at the site.
The trial court denied the motion by PSS for summary judgment dismissing plaintiff’s Labor Law §§ 240(1), 241(6), 200 and common-law negligence claims, and dismissing the cross-claims, counterclaims and third-party claims against it for contribution, common-law indemnification and contractual indemnification.
The Second Department reversed the trial court’s decision and granted PPS’s entitlement to judgment as a matter of law dismissing the Labor Law §§ 240(1) and 241(6) claims by submitting evidence that its role at the site was only of general supervision such that it did not have the authority to control work performed or the safety precautions taken by the general contractor and plaintiff’s employer, which is insufficient to impose liability on a safety consultant under the Labor Law, relying on Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139, 148, 950 NYS2d 35 (1st Dept 2012); Linkowski v City of New York, 33 AD3d 971, 975, 824 NYS2d 109, (2d Dept 2006); Smith v McClier Corp., 22 AD3d 369, 371, 802 NYS2d 441 (1st Dept 2005). The Court additionally noted “PSS’s loss control services [were] advisory only” under the Consultant Agreement.
PRACTICE POINT: It always comes back to authority, doesn’t it? If you have the authority to control he work then you are an appropriate defendant contractor, if you do not, you are likely not an appropriate defendant. If you keep that simple rule in mind, and review the contracts carefully, you go a long way in understanding the complexities of the labor law,
The Second Department held that for the same reasons, PSS established its prima facie entitlement to judgment as a matter of law dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence insofar as asserted against it. PSS established, prima facie, that it did not have the authority to supervise or control the performance of the work and that it did not have control over the work site and did not create the alleged dangerous condition.
In opposition, plaintiff failed to raise a triable issue of fact. Thus, the trial court should have granted those branches of PSS's motion which were for summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action insofar as asserted against it.
Indemnity Issues in Labor Law (SEP)
PSS also moved to dismiss the cross-claims against it which sought common law contribution/indemnification. In moving, PSS had to establish that it did not owe a duty of care to either Broadway/Congress Builders, nor the injured party. PSS established that it did not “launch a force or instrument of harm,” and further demonstrated that it did not create the defect through which plaintiff fell. Accordingly, it owed no duty to plaintiff. Moreover, the only duty owed to Broadway/Congress was set forth in the contract. There was no independent tort duty owed by PSS to Owners/General Contractor, and, indeed, none was ever asserted in the third-party action naming PSS.
Moreover, the only contractual duty that PSS undertook was to act as a safety consultant. Thus, even if it breached that obligation, its actions amounted only to a “failure to become an instrument of good, which is insufficient to impose a duty.”
Finally, because PSS did not supervise, direct or control the work of the plaintiff, no duty was created outside the scope of its contractual obligations.
It is noted that PSS also moved for summary judgment against the Broadway entities under a theory that said entities breached their obligation to name PSS as an additional insured on their policies. Here, however, the insurance procurement clause at issue only required the Broadway entities to use “commercially reasonable efforts” to ensure PSS’ protection on a policy of insurance. Because PSS did not establish that the Broadway entities failed to use such “commercially reasonable efforts,” its motion for summary judgment failed.
July 1, 2016
Appellate Division, Fourth Department
Plaintiff allegedly was injured as a result of attempting to load a so-called “Cadillac box” onto a truck after a concert at HSBC Arena. Plaintiff had been instructed to hoist the box onto the truck by hand, despite the fact the box had been taken off the truck with a forklift before the concert. While attempting to life the box onto the truck, the weight of the box shifted and fell onto plaintiff.
The trial court denied defendants’ motion to dismiss plaintiff’s complaint alleging violations of Labor Law §§ 240(1), 241(6), 200 and common-law negligence claims. The trial court also granted plaintiff’s cross-motion for leave to amend their bill of particulars to assert additional Industrial Code violations. The court also granted plaintiff’s cross-motion seeking discovery sanctions pursuant to CPLR § 3126 precluding defendants from using the contract between CPI and Gentour in furtherance of their motion for summary judgment dismissing the complaint.
The Fourth Department rejected defendants’ argument that CPI is not an entity that may be liable under the statute because it was a licensee of the Arena and had the authority to supervise and control the injury-producing work, citing to Grilikhes v International Tile & Stone Show Expos, 90 AD3d 480, 483 (1st Dept 2011); Fisher v Coghlan, 8 AD3d 974, 975-79 (4th Dept 2004).
The Court found an issue of fact whether plaintiff’s work was ancillary to the demolition of the stage, a structure, and whether his injuries are within the ambit of the statute because they are “the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 ).
Although the Court agreed with defendants that plaintiffs are not entitled to equitable or judicial estoppel regarding defendants’ failure to produce the CPI / Gentour Contract in a timely fashion, the Court declined to overturn the trial court’s imposition of sanctions for failing to comply with CPLR § 3126. The Court declined plaintiff’s request on their cross-appeal to impose a more severe sanction because a sanction for disclosure noncompliance “will remain undisturbed unless there has been a clear abuse of discretion”, relying on Merrill Lynch, Pierce, Fenner & Smith, Inc. v Global Strat Inc., 22 NY3d 877, 880 (2013), and no such abuse existed in this case.
PRACTICE POINT: Let’s start with the easy part, when ordered to produce a contract, do it. Failure to produce that which should be produced can be a problem, failure to produce that which you were ordered to produce is always a problem. The order of the court who sanctioned the party for their failure to disclose will then determine the sanction, which the appellate court will not modify unless it is a “clear abuse of discretion”, a very high standard. Then we move to the 240(1) issue. Here we see a court, the second of the month, determining that only a jury can decide if the risk is of the type of hazard common to the work site or if it is, once again, “the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 ).
With regard to plaintiff’s cross-motion seeking permission to amend his bill of particulars to assert a violation of 12 NYCRR 23-2.1 (b) in support of his Labor Law § 241 (6) claim, the Fourth Department found the trial court erred in granting the request. Although that regulation, which deals with the disposal of debris, is sufficiently specific to support a section 241 (6) claim, the Court found it inapplicable to the facts of this case. Therefore, the trial court’s decision was modified, plaintiffs’ cross motion to amend was denied, and that part of defendants’ motion for summary judgment dismissing the Labor Law § 241 (6) claim in its entirety was granted.
The Fourth Department affirmed the trial court’s denial of the defendants’ motion for summary judgment seeking dismissal of plaintiffs' common-law negligence/Labor Law § 200 claims. Where, as here, the accident involves only the manner in which the work was performed, CPI could be liable if it exercised supervision or control over the injury-producing work. To the extent that defendants rely on the contract between Gentour and CPI, defendants were, as noted above, properly precluded from using that contract in furtherance of their instant motion. In any event, the contract between the Arena and CPI, the contract between the Arena and plaintiff's union (with which CPI was contractually obligated to comply), and section 1.7 of the contract between CPI and Gentour, read together, provided CPI with the authority and obligation to supervise and control the injury-producing work, and there are questions of fact on this record whether CPI actually exercised such supervision and control.
LABOR LAW § 241(6) REGULATIONS; SPECIFIC OR GENERAL (MAS)
12 NYCRR § 23-1.7(g) – Protection in Construction, Demolition and Excavation Operations; Protection from general hazards; Air-contaminated or oxygen deficient work areas.
§ 23-1.7(g), requires testing of unventilated, confined areas where dangerous air contaminants may be present or where oxygen supply may be insufficient, and is sufficiently specific.
Mazzocchi v International Business Machines, Inc., 294 AD2d 151, 742 NYS2d 217 (1st Dept 2002);
Piazza v Frank L. Ciminelli Const. Co., Inc., 2 AD3d 1345, 770 NYS2d 504 (4th Dept 2003);
Piazza v Frank L. Ciminelli Const. Co., Inc., 12 AD3d 1059, 785 NYS2d 207 (4th Dept 2004);
Osorio v Kenart Realty, Inc., 35 AD3d 561, 826 NYS2d 645 (2d Dept 2006);
Rivera v Ambassador Fuel and Oil Burner Corp., 45 AD3d 275, 845 NYS2d 25 (1st Dept 2007);
Kebbeh v City of New York, 113 AD3d 512, 979 NYS2d 50 (1st Dept 2014);
Cerverizzo v New York, 116 AD3d 469, 983 NYS2d 515 (1st Dept 2014);
Pittman v S.P. Lenox Realty, LLC, 119 AD23 846, 989 NYS2d 359 (2d Dept 2014).
Mazzocchi held ∆ property owner did not violate reg where alleged dangerous air contaminants could have been present unless the atmosphere of such area was first tested by the employer where π alleged exposure to asbestos dust while working on property b/c his assertion that he saw dust on site and he worked in small space resembling a pit failed to show whether he ever worked in a confined space as required by reg.
Piazza rejected ∆s contractor and proper owner’s argument that they did not violate the reg or reg inapplicable or were not a proximate cause of explosion that injured π, who was plumber soldering copper joits in crawl space with acetylene gas torch.
Piazza found issue of material fact as to where ∆ subcontractor lacked supervision or control of the safety in the crawl space area & thus will be liable as an agent of the general contractor for injuries sustained in those areas & activities within the scope of work delegated to it.
Osorio held reg inapplicable where π testified that alleged contaminants were not present prior to commencement of work
Rivera held reg sufficiently specific and applicable to accident involving cleaning of fuel tank in unventilated room.
Kebbeh held reg not applicable where π allegedly suffered injuries as a painter due to exposure to airborne contaminants on project.
Cerverizzon held reg applicable to empty aeration tank used to aerate and clean sewage b/c “confined” area does not require space be accessible only through narrow opening; although top of tank was open to air court held access was “restricted” b/c 20-foot ladder was needed to enter and exit the tank.
Pittman held reg did not apply where defendant proved that air contaminants not present & accident occurred in apartment, not in unventilated confined area such as a sewer pit, tank, chimney or space with restricted means of egress.
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