Labor Law Pointers
Volume V, No. 11
Wednesday, September 7, 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 and would love to help you with yours.
Welcome to the doldrums of summer. Kids are back in school and the courts will soon be back into high gear. As a claims professional friend said today it is time for trial season to start.
We have fewer cases this month that at any time in our almost 6 years of preparing this newsletter for you, just 2 cases total. To make up for it I am adding more photos with some type of a labor law twist.
Our labor law team is growing here at Hurwitz & Fine. We welcome Eric Andrews to the team. Eric is the newest member of our team and will be stepping into the fray immediately, learning to swim with the sharks we see out there regularly. We have also added Howard Altmen who is, in reality a coverage guy but who has a deep background in labor law and adds to our quiver of labor law attorneys with a very strong knowledge of coverage. This allows us to deliver the combination of highly knowledgeable and experienced attorneys in both labor law and risk transfer in one handy location, and we do it like no one else can. Eric is working primarily out of our Buffalo main office and Howard is working primarily out of our downstate office. We cover the state and are always available to help with any situation.
Is this a 241(6) case about to happen? 
What type of safety device can prevent this? 
Is this misuse of a safety device? 
Looks safe to me. 
Enjoy the end of summer and see you all next month. David
David R. Adams
Hurwitz & Fine, P.C.
424 Main Street
Suite 1300 Liberty Building
Buffalo, New York 14202
Phone: 716.849.8900
Direct: 716.849.8916
Fax: 716.855.0874
Cell: 716.553.6901
Email: [email protected]
H&F Website: www.hurwitzfine.com
Labor Law Pointers is published the first Wednesday of each month. If you know of others who may wish to subscribe to this free publication, please feel free to forward it. If you wish to subscribe 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.
Matter of New York City Asbestos Litig.
August 4, 2016
Appellate Division, First Department
The jury determined LILCO, National Grid’s predecessor in interest, violated Labor Law § 200 by issuing detailed specifications directing the means and methods of the contractors in mixing and applying asbestos-containing concrete and insulation at the power plant. The jury also found defendant O’Connor Construction, which settled with plaintiff before trial, was negligent but that its negligence was not a proximate cause of plaintiff’s injuries and that LILCO was 100% responsible.
The trial court also granted National Grid’s motion for summary judgment on its contractual indemnification claim against defendant O’Connor but denied O’Connor’s motion for indemnification against National Grid.
Labor Law § 200 and Common-Law Negligence (VCP)
The First Department affirmed the finding that National Grid violated Labor Law § 200 because LILCO was admittedly in charge of trade coordination i.e. directing the trades as to where and when to do their work, which resulted in plaintiff working in close contact with the asbestos-dust-producing insulators. It is of no consequence that LILCO ensured that its directives were followed by supervising the superintendents, rather than by supervising the workers directly.
The court also found the jury’s determination that LILCO was 100% responsible was a fair interpretation of the evidence because of LILCO’s supervision and control over the injury-producing activity, citing to Matter of New York Asbestos Litig, [Mashall], 28 AD3d 255,812 NYS2d 514 (1st Dept 2006).
Indemnity Issues in Labor Law (SEP)
The First Department affirmed the trial court’s decision to grant National Grid’s motion against O’Connor for contractual indemnification because the clause in the contract between LILCO and O’Connor, which predates General Obligations Law § 5-322.1, provided for indemnification of LILCO by O’Connor for “all losses, damages, claims, liens and encumbrances, or any or all of them, arising out of or in any way connected with the work,” whether or not LILCO was negligent.
Therefore, the court held the clause was triggered by the trial evidence, and O’Connor’s position that National Grid is not a successor in interest to LILCO on the contract is without merit.
With respect to the trial court’s denial of that portion of National Grid’s motion seeking attorneys’ fees from O’Connor, the court held National Grid is not entitled to such fees incurred in prosecuting the indemnification claim against O’Connor but National Grid is entitled to attorneys’ fees incurred in defending against plaintiff’s action.
Churaman v C&B Elec., Plumbing & Heating, Inc.
August 3, 2016
Appellate Division, Second Department
Plaintiff, an independent contractor hired by defendant C&B to perform construction work, allegedly was directed by C&B’s principal to cut a vertical beam that extended from the floor to the ceiling and supported the ceiling, a ceiling joist, and a shelf full of supplies above the ceiling on the next floor. As soon as plaintiff cut the vertical beam, the ceiling joist fell, struck him and caused him to fall off his ladder and hit his head on the floor.
The trial court denied plaintiff’s motion for summary judgment on his Labor Law §§ 240(1) and 241(6) claims against defendants YAM Holding Corp. and Y-M Holding Corp., finding the evidence insufficient to establish as a matter of law that C&B’s principal “hired and directed plaintiff in the performance of construction and demolition work at the subject premises.”
A property owner may be held liable for a violation of Labor Law § 240(1) that proximately caused injury to a worker even where “a tenant of the building contracted for the work without the owner’s knowledge” (see Santass v Consolidated Inv. Co., Inc., 10 NY3d 333 [2008]). Here, plaintiff established YAM owned the subject property where the incident occurred and that YAM leased the property to C&B.
The Second Department also held YAM failed to provide plaintiff with adequate safety devices as required by the statute and that this violation was a proximate cause of the incident, citing in Sarata v Metropolitan Transp. Auth., 134 AD3d 1089, 23 NYS3d 281 [2d Dept 2015]). However, the court held plaintiff’s motion against YAM “was premature since there has been almost no discovery in the case and the plaintiff has not been deposed.”
As a result, the court determined YAM’s ability to defend is impaired, since it is limited to the plaintiff’s own unchallenged account of the incident as set forth in his affidavit submitted in support of his motion and YAM has not had an opportunity to explore potential defenses (see Wilson v Yemen Realty Corp., 74 AD3d 544, 545, 903 NYS2d 42 [1st Dept 2010]; Breytman v Olinville Realty, LLC, 99 AD3d 651, 952 nys2d 205 [2d Dept 2012]; Harvey v Nealist, 61 AD3d 935, 936, 877 NYS2d 459 [2d Dept 2009]).
As to defendant Y-M, the court held plaintiff failed to make a prima facie showing that Y-M owned or had any nexus to the property where plaintiff’s incident occurred.
According, the court modified the trial court’s decision by denying plaintiff’s motion for summary judgment on his Labor Law § 240(1) as against YAM without prejudice to renewal upon completion of discovery, and otherwise affirmed.
PRACTICE POINT: Do not count on a similar result in all courts in the state. The second is much more forgiving than the fourth or even the first where they may well have granted the motion against the owner right out of the box unless they could show specifically what type of evidence they expected discovery to provide them.
LABOR LAW § 241(6) REGULATIONS; SPECIFIC OR GENERAL (MAS)
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12 NYCRR § 23-1.7(h) – Protection in Construction, Demolition and Excavation Operations; Protection from general hazards; Corrosive substances. |
§ 23-1.7(h) requires all corrosive substances and chemicals shall be so stored and used as not to endanger any person, and “protective equipment for the use of such corrosive substances and chemicals shall be provided by the employer.” |
Welsh v Cranesville Block Co., Inc., 258 AD2d 759, 685 NYS2d 825 (3d Dept 1999); Flores v Infrastructure Repair Service, LLC, 115 AD3d 543, 982 NYS2d 103 (1st Dept 2014); Neville v Chautauqua Lake Cent. School, 124 AD3d 1385, 1 NYS3d 691 (4th Dept 2015). |
In Welsh, genuine issue of material fact as to whether cemetery breached its nondelegable duty owed to π by employer's failure to provide adequate boots to protect him from corrosive effects of concrete he was required to kneel in while performing his work on mausoleum which precluded ∆’s SJ motion. The court in Flores held that hot rubberized asphalt, which π was carrying when he allegedly tripped and sustained burns, was not a corrosive substance or chemical requiring protective equipment & thus ∆ general contractor did not violate reg. In Neville, π allegedly was splashed in neck & face by hot tar while placing 100 lb. keg of asphalt into kettle; court found issues of fact sufficient to deny ∆s’ SJ motion as to whether longer face masks should have been provided to π based on evidence of coworker’s testimony & that another coworker ordered hooded clothing to cover head & neck. |
\Hurwitz & Fine, P.C. is a full-service law firm
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Labor Law Pointers
Editor
David R. Adams
Associate Editor
V. Christopher Potenza
Associate Editor
Steven E. Peiper
Associate Editor
Jennifer A. Ehman
Associate Editor
Marc A. Schulz
Labor Law Team
David R. Adams, Team Leader Steven E. Peiper
[email protected] [email protected]
Dan D. Kohane Jennifer A. Ehman
[email protected] [email protected]
Michael F. Perley Marc A. Schulz
[email protected] [email protected]
V. Christopher Potenza ward Altman [email protected] [email protected]
Eric D. Andrews
Hurwitz & Fine, P.C.
424 Main Street
Suite 1300 Liberty Building
Buffalo, New York 14202
Phone: 716.849.8900
Fax: 716.855.0874
www.hurwitzfine.com
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