Labor Law Pointers - Volume V, No. 2

Labor Law Pointers

 

Volume V, No. 2

Wednesday, December 2, 2015

 

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 are here every day to address yours. 

 

In fact helping you with your situation, is the reason for our respiration, and nowhere else in the nation, will your find such dedication to helping you with the creation of a helpful reformation leading to the alleviation of your sticky situation, potentially without litigation.  That is our chosen vocation.

 

Ok, maybe I should not have written that right after the Defense Trial Lawyers Association meeting and holiday party, but these are the risks of putting out a newsletter every month.

 

Steve Peiper is just finishing up a 3 week trial down in Kings County so Marc Schulz has graciously stepped in for him writing the indemnity portion of the newsletter in addition to his numerous other duties here.  Jen sent her’s in from the DRI meetings in NYC, we are often a far flung bunch. 

 

Some interesting cases this month, one which has little actually to do with the labor law is included because it covers an important topic, the secret taping of independent medical examinations, and an attorneys attempt to use that tape during a trial.  As if that were not enough the judge gets involved, makes pronouncements on the record about the involved doctor, and when he is overturned by the Second Department the case is reassigned to another judge.  The decision is long but well worth your time to read.  See Bermejo below.

 

As always we are available to answer any question labor law or risk transfer related at any time.  Have a great holiday season and we will be back 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 91st St. Crane Collapse Litig.

November 12, 2015

Appellate Division, First Department

 

After hearing loud bangs, plaintiff got up to run out of the shanty and allegedly was injured when he tripped and fell over a tool on the floor of third-party defendant Sorbara’s shanty.  The trial court denied the DeMatteis defendants’ motion to dismiss the Labor Law §§ 240(1), 241(6), 200 and common-law negligence claims and all cross-claims, and for summary judgment on its contractual indemnification claim against Sorbara. 

 

The trial court also denied Sorbara’s motion to dismiss DeMatteis’ contractual indemnity claim.  The court denied defendant/third-party plaintiff 1765 First’s motion to dismiss all of plaintiff’s claims and for summary judgment on its contractual indemnity claim against Sorbara. 

  

Labor Law § 240(1) (DRA) 

 

The First Department held the facts do not invoke the special protections of the statute and plaintiff’s injury is so attenuated that it cannot be reasonably connected to the crane’s collapse.

 

PRACTICE POINT:  Sometimes you just have to say, seriously, you thought that running on the ground floor and tripping over a tool was a 240(1) case, seriously?  Even though he was running to see what happened with a falling object, the crane?  How did the court below not dismiss the 240(1) claim?

 

Labor Law § 241(6) (JAE)

                                

However, the First Department did find a viable cause of action pursuant to Labor Law § 241(6) as premised on an alleged violation of 12 NYCRR 23—1.7(e)(2), which, inter alia, requires that “working areas: be kept free from scattered tools.  But, 12 NYCRR 23-1.7(e)(1) was inapplicable as plaintiff fell within a work shanty, not a passageway.

 

Any violations of those provisions of the Industrial Code concerning crane maintenance and inspection were deemed inapplicable, since the crane collapse was not a proximate cause of plaintiff’s injuries, in that he was injured when he tripped and fell over a tool on the floor. Further, the statutes are either inapplicable to the facts or there is insufficient evidence in the record showing that they were violated and that the alleged violation caused the event. The record indicates that the crane collapsed due to a latent manufacturing defect in one of its components, with no evidence that the collapse was caused by inadequate maintenance or inspection of the crane.

 

Labor Law § 200 and Common-Law Negligence (VCP)

 

The First Department reversed the trial court and dismissed plaintiff’s claims because neither DeMatteis nor 1765 First exercised supervision or control over the subject work.  There was also no evidence that either was on the notice of the tool on the floor of the shanty.

 

Indemnity Issues in Labor Law (SEP)

 

The First Department affirmed the trial court’ decision to deny DeMatteis and/or 1765 Frist summary judgment on their contractual indemnity claims against Sorbara.  The indemnity provision at issue provides that Sorbara will indemnify DeMatteis and 1765 First for lossess that occur “by reason of the acts or omissions [of Sorbara] or anyone directly or indirectly employed by [Sorbara] in connections with the Work.”  

 

Here, the record showed that the crane collapse did not occur as a result of an act or omission on Sorbara and New York Crane was not an indirect employee of Sorbara.  In addition, the court found insufficient evidence as to whether the crane was either misused by the Sorbara operator or improperly maintained by Sorbara’s employees.  Thus, Sorbara was not entitled to dismissal of the contractual indemnity claim since triable issues of fact exist whether plaintiff’s fall on the tool was caused by an act or omission of Sorbara or its employees; a finding which would trigger the subject indemnity provision.

 

Vega v Metropolitan Transp. Auth.

November 19 2015

Appellate Division, First Department

 

Vega was allegedly injured when a coworker operating an excavator dropped concrete debris on him.  The two workers were in the process of transporting the debris to a nearby dumpster for disposal, when the excavator operator dropped the debris before Vega had safely left the dumping area. 

 

The trial court denied Vega’s motion for partial summary judgment on his Labor Law §§ 240(1) and 241(6) claims, and denied defendants’ cross-motion for summary judgment seeking to collaterally estop Vega from raising an issue already decided by the Workers’ Comp Board.   

 

Labor Law § 240(1) (DRA) 

 

The First Department affirmed the trial court’s denial of Vega’s motion for summary judgment because he did not “show that the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute.”  Here, “the hoisting … equipment did not malfunction during the hoisting maneuver but, rather, … served [its] core objective” and the concrete debris that fell on Vega was “purposefully released from the [excavator] by the operator at the designated location.”

 

In addition, the First Department held the trial court should have collaterally estopped Vega from litigating his allegation that he sustained complex regional pain syndrome or reflex sympathetic dystrophy because that very same issue was previously raised and conclusively decided by the Workers’ Comp Board proceeding, where Vega had the full and fair opportunity to litigate the issue.

           

PRACTICE POINT:  The key words here are “because of” the failure or lack of a safety device.  The debris was being dropped intentionally so there was not failure of any safety device. 

The next issue I am addressing, having nothing to do with the labor law specifically, is the collateral estopal effect of the comp decision that plaintiff did not suffer from CRPS.  This is a key point and reminds us to read the decision of the comp board, you never know what you may find, sometimes it is a gold mine, saving the substantial cost of defending the CRPS claim.

 

Labor Law § 241(6) (JAE)

 

As to plaintiffs’ Labor Law § 241(6) claim, the court affirmed finding that defendants raised an issue of fact as to whether Vega was comparatively negligent because of conflicting deposition testimony over whether Vega had given the excavator operator a signal to drop the concrete debris before plaintiff had safely left the dumpster area.

 

 

Rodriguez v Flushing Town Ctr. III. L.P.

November 12, 2015

Appellate Division, Second Department

                                         

The trial court, as relevant here, denied third-party defendant React’s motion to dismiss the third-party claim for contractual indemnification, and granted third-party plaintiffs Flushing and Muss Development’s motion for summary judgment on third-party indemnity claim.

 

Indemnity Issues in Labor Law (SEP)

 

Under General Obligations Law § 5-322.1, a party cannot seek contractual indemnification for its own negligence.  Here, the Second Department held that the parties’ submissions raised triable issues of fact whether the negligence of Muss Development contributed to the accident.  Thus, the trial court properly denied React’s motion but should have denied that portion of Muss Development and Flushing’s cross-motion.  The court further held Flushing was entitled to a conditional order of summary judgment on its contractual indemnity claim because there was no evidence Flushing was negligent.

 

 

Cardenas v BBM Constr. Corp.

November 12, 2015

Appellate Division, Second Department

 

Cardenas allegedly was injured while installing a 500-pound beam into the wall a house as he attempted to manually lift one end of the beam 1.5 feet.  The trial court granted defendant BBM Construction’s motion to dismiss Cardenas’ action for Labor Law §§ 240(1) and 241(6), and denied his cross-motion for partial summary judgment on liability.

 

Labor Law § 240(1) (DRA) 

 

The Second Department affirmed the trial court’s decision to dismiss the § 240(1) claim because BBM Construction demonstrated that the injury was not caused by the elevation-related hazards encompassed under the statute.  The court stated “the fact that the plaintiff was injured while lifting a heavy object does not give rise to liability” and Cardenas failed to raise a triable issue of fact as to whether his injury arose from something more than “the usual and ordinary dangers of the construction site.”  As a result, Cardenas was not entitled to summary judgment.

 

PRACTICE POINT:  Once again, this is a strange month, really?  Plaintiff hurts his back lifting something heavy.  What fell, the plaintiff, no, the beam, no, where is the labor law claim.  Does it matter that he was standing on a scaffold when it happened, no.  Is there a more ordinary risk on a construction site that a worker hurting his back lifting something heavy, no.  But chew on this for a minute, if the scaffolding had shifted while he was lifting the beam, and he hurt his back, would that be a labor law claim?  Inquiring minds want to know.

 

 

Labor Law § 241(6) (JAE)

 

However, the Second Department found that the Supreme Court erred in granting that branch of BBM Construction’s motion which was for summary judgment dismissing the § 241(6) claim, as predicated on an alleged violation of 12 NYCRR 23-2.3(a). This section provides that during the final placing of structural steel members, loads shall not be released from hoisting ropes until the members are securely fastened (see 12 NYCRR 23-2.3[a]).

 

The Second Department held that BBM Construction failed to demonstrate, prima facie, that this section was factually inapplicable to this case, that the section was applicable but not violated, or that the alleged violation of that section was not a proximate cause of the plaintiff's injuries.  Conversely, the Second Department also found that the Supreme Court properly denied that branch of the plaintiff’s cross motion which was for summary judgment on this claim as his submissions likewise failed to eliminate all triable issues of fact as to whether 12 NYCRR 23-2.3(a) was violated and whether the alleged violation was a proximate cause of the plaintiff's injuries.

 

Bermejo v New York City Health & Hosps. Corp.

November 18, 2015

Appellate Division, Second Department

 

The trial court granted plaintiff summary judgment on his Labor Law § 240(1) claim against defendant property owner Amsterdam and defendant general contractor Ibex.  Plaintiff’s attorney surreptitiously videotaped defendant Ibex’s IME of plaintiff, and failed to disclose the existence of that recording to defense counsel before the damages only trial. During direct of plaintiff’s paralegal, plaintiff’s attorney revealed its existence, as the paralegal discussed the brevity of the IME exam.  The trial court declared a mistrial, and the IME doctor refused to testify at the new trial.  As a result, Ibex and the other defendants separately moved for leave to have plaintiff re-examined and sought costs from plaintiff’s attorney, which the trial court denied.

 

The issue on appeal was whether a plaintiff’s attorney must obtain approval from the court before making a video recording of plaintiff’s IME and whether CPLR § 3101 requires that such a recording be disclosed to opposing counsel before trial.  The Second Department answered both questions in the affirmative, and found that the IME doctor was unwilling to testify at the new trial because of the conduct of plaintiff’s trial attorney and because the trial court repeatedly, without any basis in fact, accused the IME doctor of lying on cross-examination.

 

Therefore, those branches of Ibex’s and the other defendants’ motions for leave to have plaintiff re-examined by a doctor of their choosing and for an award of costs against plaintiff’s attorney under 22 NYCRR § 130-1.1 should have been granted.  The Second Department also transferred the new trial to a different Justice.

 

PRACTICE POINT:  I have nothing to say other than read the case, it is worth it.  This is the type of action taken by attorneys that gives us a bad name.  A secret video of an independent medical examination, then not disclosing it, then trying to use tit at trial, then the attorney trying to be both the attorney and the witness, all followed up by a judge who behaved in such a manner that he was removed from the case.  Read this one, please.

Remember that our newsletter is set up so that by clicking on the case name, or anything else that is blue, will take you to the case, the statute, or to set up an email to us if you click on out names. 

 

Podobedov v East Coat Constr. Group, Inc.

November 18, 2015

Appellate Division, Second Department

 

Plaintiff, an employee of third-party defendant IBK, was struck on the head by falling concrete while working outside on ground level, about five to eight feet from a building.  He was cleaning frames that had been used as forms for recently poured wet cement.  According to plaintiff, after being plucked out of the cement, the frames were lowered to him on ropes by workers on the sixth floor, where the cement was being poured, and after receiving the frames, plaintiff untied and cleaned off the hardening cement that sometimes got stuck when they were lifted out.

 

The trial court denied plaintiff’s motion for partial summary judgment on his Labor Law § 240(1), and denied defendants/third-party plaintiffs’ cross-motion to dismiss the complaint, or alternatively for summary judgment on its contractual indemnity claim.  The trial court also denied third-party defendant’s cross-motion to dismiss the third-party complaint.

 

Labor Law § 240(1) (DRA)

 

The Second Department held that, even in the absence of an eyewitness who could identify the falling object or where it came from, plaintiff’s deposition testimony that workers on the sixth floor were using a rope to lower the frames to him, that pieces of hardened cement sometimes stuck to the frames, and that after he was struck by the object, he saw pieces of cement on the ground that had not been there before the accident, was sufficient to raise a triable issue of fact as to whether plaintiff was hit by a piece of concrete that fell from the sixth floor, where wet concrete was being poured, or form one of the frames being lowered to plaintiff.

 

The court further held that defendants and IBK failed to establish that the object that fell was not part of the load that required securing for purposes of the undertaking at the time it fell.  However, plaintiff’s admission that he did not see the falling object, how it fell, or where it fell from before it allegedly struck him and his mere belief that he was hit by cement that had fallen from the sixth floor or from a two-by-four frame being lowered to him was insufficient to established prima facie that his injuries were proximately caused by the alleged statutory violations.

 

PRACTICE POINT:  Not being able to determine where the falling object came from takes us to a similar place to where we were above with the Vega case above, do we know if the object that fell was one that needed to be secured or was an object being hoisted.  Where that question cannot be answered no one wins the motion as it becomes a question of fact that only a jury can settle.

 

Labor Law § 241(6) (JAE)

 

With regard to the § 241(6) claim, the Second Department likewise found that the Supreme Court properly denied those branches of the cross motions of the defendants and IBK which were for summary judgment dismissing the cause of action premised upon 12 NYCRR 23-1.7(a)(1). Section 23-1.7(a)(1), entitled “Protection from general hazards,” mandates the use of appropriate safety devices to protect workers from “overhead hazards” in areas “where persons are required to work or pass that [are] normally exposed to falling material or objects.” 

 

In light of plaintiff’s testimony submitted in support of the cross motions, all issues of fact were not eliminated as to whether the area in which the plaintiff was standing when he was struck was not normally exposed to falling material or objects, which would render 12 NYCRR 12-1.7(a)(1) inapplicable, or whether a suitable overhead protection could have been provided which would have prevented the accident.

 

 

Indemnity Issues in Labor Law (SEP)

 

As the Second Department found triable issues of fact as to how plaintiff’s injuries were caused and the provision in the subcontract that IBK may be required to indemnify East Coast “only to the extent [the claims, damages, losses and expenses were] caused by the negligent acts or omissions of the of IBK, the trial court properly determined that the issue of indemnification must be decided by the jury.

 

 

 

Lange v State of New York

November 13, 2015

Appellate Division, Fourth Department

                                        

Court of Claims Act § 10(6) permits a court in its discretion to allow a claimant to file a late notice of claim based upon considerations of certain enumerated factors.  However, those factors are not exhaustive and the presence or absence of any one factor is not controlling.

 

Here, the Court of Claims denied claimant’s motion seeking permission to file a late notice of claim based on defendant’s alleged negligence and violation of Labor Law §§ 200 and 241(6), finding that none of the enumerated statutory factors weighed in favor of claimant.

 

Labor Law § 240(1) (DRA)

 

The Fourth Department affirmed the trial court’s decision to deny claimant’s motion although it concluded that three of the factors; notice, opportunity to investigate and lack of substantial prejudice to defendant; weighed in favor of claimant.  The court declined to disturb the motion court’s exercise of discretion because the record supported the Court of Claims’ decision that “the excuse offered for the delay is inadequate and the proposed claim is of questionable merit.”

 

PRACTICE POINT:  Never forget that sometimes your best defense is a good offense.  If you can win the motion opposing a request to file a late notice of claim, that is the end.  This case points out the wide judicial discretion afforded in these situations.

 

 

Gillis v Brown

November 20, 2015

Appellate Division, Fourth Department

                                        

Gillis, who climbed onto the wall header near the eaves of the barn, put the weight of his legs on plywood that had been placed in the eaves by defendants to block wind and precipitation.  Gillis allegedly was injured when the he fell after the plywood shifted while securing roofing material to refurbish metal trusses on defendants’ barn.

 

The trial court, among other things, denied defendants’ motion for summary judgment dismissing the complaint alleging violations of Labor Law §§ 240(1), 241(6), 200 and common-law negligence.  The trial court also denied Gillis’ cross-motion for partial summary judgment.

 

Labor Law § 240(1) (DRA)

 

The Fourth Department affirmed the trial court’s denial of both parties’ motions, finding issues of fact whether Gillis’ actions were the sole proximate cause of his injuries.  The evidence submitted by both parties conflicts on the issue whether a “man lift” was available on the work site for Gillis to use in performing his injury-producing work, whether he knew he was expected to use that man-lift “but for no good reason chose not to do so” and whether the man-lift was an adequate safety device for the specific task he performing at the time he was injured.

 

PRACTICE POINT:  So here we have a case which outlines, once again, the four necessary elements of a sole proximate cause defense.  The defense needs to establish that there was 1) available an 2) appropriate safety device which the plaintiff 3) was instructed or knew he was expected to use and that the plaintiff 4) for no good reason misused or chose not to use.  All 4 elements must be present for the sole proximate cause defense to be affirmed.

 

 

Labor Law § 241(6) (JAE)

 

The Fourth Department further concluded that the court erred in denying the motion with respect to the Labor Law § 241 (6) cause of action insofar as it was based on an alleged violation of 12 NYCRR 23-1.7 (b) (1).  This provision provides in pertinent part that “[e]very hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed in compliance with this Part (rule).” Although that regulation is sufficiently specific to support liability under section 241 (6), the Fourth Department concluded that the open space on either side of the header of the barn wall from which plaintiff fell was not the type of “hazardous opening” to which the regulation applied.

 

 

Labor Law § 200 and Common-Law Negligence (VCP)

 

The Fourth Department reversed the trial court, and dismissed the Labor Law § 200 and common-law negligence claims. Where the alleged defect or dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under Labor Law § 200 or common-law negligence.  

 

Here, defendants' placement of plywood along the eaves of the barn as a block to the elements was not a “defective condition;” instead, the alleged defect arose from the methods or manner of Gillis in performing his work. Because it is undisputed that defendants exercised no supervisory control over the injury-producing work, defendants were entitled to summary judgment dismissing these claims.

 

Jeanetti v Casler Masonry, Inc.

November 20, 2015

Appellate Division, Fourth Department

                                        

Jeanetti allegedly was injured while helping in the rescue of an employee of defendant/third-party plaintiff Casler at a construction project.  The Casler employee was injured when a large concrete beam fell on him while working on scaffolding, and Jeanetti and others climbed the scaffolding to assist in the rescue when Jeanetti injured his back as they were transferring the injured worker from the scaffolding to the ground.

 

Colgate University owned the property, and hired Barr as the construction manager, who hired Casler to perform masonry work pursuant to a Subcontract.  This Subcontract included an additional Scaffolding Indemnity Agreement which permitted Barr to use Casler’s scaffolding “for the purpose of performing miscellaneous tasks during masonry operations” at the project and required Barr to defend and indemnify Casler for any claims and expenses “arising out of or resulting from [Barr’s] use, negligence, fault or omission in maintenance, handling or operation of the Scaffolding.” 

 

The trial court, among other things, granted in part and denied in part the motion of Barr to dismiss the third-party complaint alleging common-law and contractual indemnity, and denied Casler’s cross-motion on its third-party claim for contractual indemnification.

 

Indemnity Issues in Labor Law (SEP)

 

The Fourth Department agreed with Barr that it owes no contractual indemnity to Casler because Jeanetti was allegedly injured in a rescue operation of Casler’s employee which resulted from Casler’s masonry work.  Where, as here, “a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intent to be assumed.”  Thus, the court held “no contractual duty to indemnify under such circumstances is either expressly imposed [by] or reasonably to be inferred” from the indemnity provision at issue.

 

Militello v Landsman Dev. Corp.

November 20, 2015

Appellate Division, Fourth Department

                                        

Militello allegedly was injured while working on scaffolding.  He was using a screw gun to attach sheets of drywall when he pushed forward on the wall to apply a screw and the scaffold “skidded forward” toward the wall.  He lost his balance and fell backwards onto a “riser” that impaled him through the left buttocks.  As relevant here, the trial court granted his motion for partial summary judgment on liability for his alleged violation of Labor Law § 240(1), and denied defendant’s cross-motion to dismiss that claim.

 

Labor Law § 240(1) (DRA)

 

The Fourth Department held that the statute applies to this accident because it was caused by the failure of a scaffold while Militello was working at a height although he did not fall to the ground.   That said, the court agreed with defendant that Militello’s own submissions raised triable issues of fact whether the scaffold from which he fell provided proper protection and whether his failure to lock the wheels underneath it was the sole proximate cause of the accident.

 

The court noted that although Militello’s response to interrogatories alleged the scaffold “suddenly and without warning” skidded when he was applying a screw to the wall, his coworker testified that Militello told him after the accident that he was moving the scaffold before he lost his balance and fell on the riser.  Accordingly, the court held “the two different versions of the accident … create questions of fact as to the adequacy of the protective device and as to [Militello’s] credibility”.  Neither party was entitled to summary judgment as defendant’s submissions also did not establish as a matter of law that Militello’s actions were the sole proximate cause of his injuries.

 

PRACTICE POINT:  In a case near and dear to my heart (I represent the excess carrier on this one) the issue was simply put that there were conflicting versions of how the accident occurred, both coming from the plaintiff himself.  This will always result in a question of fact such that the court cannot make a decision as the trier of fact that is solely for the jury.  The court is charged with deciding issues of law.  This is why it is always critical to obtain statements from those on the scene as quickly as possible.

 

 

Wolfe v Wayne-Dalton Corp.

November 20, 2015

Appellate Division, Fourth Department

                                        

Wolfe allegedly was injured when he fell from a safety ladder while attempting to reattach a “dumped” cable to its spindle on an overhead receiving door.  The trial court granted Wolfe’s motion for partial summary judgment on his Labor Law § 240(1) claim, finding Wolfe was engaged in repair work.  The trial court denied defendants’ cross-motion to dismiss that claim, and denied their motion for leave to renew their cross-motion.

 

Labor Law § 240(1) (DRA)

 

The Fourth Department stated the well-settled rule that ‘delineating between routine maintenance and repairs is frequently a close, fact-driven issue” and that “distinction depends upon whether the item being worked involved the replacement of components damaged by normal wear and tear.”  Here, Wolfe submitted evidence establishing that he was injured while attempting to repair “an uncommon [door] malfunction, which is a protected activity under the Labor Law § 240(1).” 

 

However, the court agreed with defendants that Wolfe failed to meet his burden of demonstrating that the injured resulted from an elevation-related risk under the statute.  It was undisputed that the ladder did not tip, and Wolfe, the only witness to his accident, testified that he had no recollection of the accident.  The court held “the simple fact that plaintiff fell from a ladder does not automatically establish liability on the part of defendants.”  As a result, the court found a triable issue of fact whether Wolfe fell because the ladder did not afford him proper protection in light of his testimony that he did not know whether the overhead door moved and struck him and/or the ladder or whether he merely slipped and fell from the ladder.

 

PRACTICE POINT:  While the unwitnessed accident is no longer, in and of itself, sufficient to defeat a Summary Judgment motion by the plaintiff, it remains incumbent upon the plaintiff to prove a violation of the labor law, that is a deficiency in the provided safety device leading to injury, Where, as here, the plaintiff does not know what caused the fall, Summary Judgment for the plaintiff will not follow.  That is, of course, because the plaintiff has the burden of establishing the cause of the fall in a Summary Judgment motion.  What with turnabout being fair play, the defendant has the same burden in their motion, to establish that the fall was not caused by a violation of the labor law and that the safety device was sufficient to protect the plaintiff.  This is often the case where the plaintiff was died as a result of the accident and thus, no one is available to testify as to the causation of the fall.

 

 

 

LABOR LAW § 241(6) REGULATIONS; SPECIFIC OR GENERAL (MAS)

 

 

12 NYCRR § 23-1.7(e) – Protection in Construction, Demolition and Excavation Operations; Protection from general hazards; Tripping and other hazards.

 

§ 23-1.7(e)(1),  requires that all passageways shall be kept free from accumulation of dirt and debris from any other obstructions or conditions which could cause tripping and is sufficiently specific.

 

Adams v Glass Fab, Inc., 212 AD2d 972, 624 NYS2d 705 (4th Dept 1995);

Cafarella v Harrison Radiator Div. of General Motors, 237 AD2d 936, 654 NYS2d 910 (4th Dept 1997);

Herman v St. John’s Episcopal Hosp., 242 AD2d 316, 678 NYS2d 635 (2d Dept 1997);

Mendoza v Marche Libre Associates, 256 AD3d 133, 681 NYS2d 517 (1st Dept 1998);

Gavigan v Bunkoff General Contractors Inc., 247 AD2d 750, 669 NYS2d 69 (3d Dept 1998);

Maynard v De Curtis, 252 AD2d 908, 676 NYS2d 340 (3d Dept 1998);

Dacchille v Metropolitan Life Ins. Co., 262 AD2d 149, 692 NYS2d 47 (1st Dept 1999);

Salinas v Barney Skanska Const. Co., 2 AD3d 619, 769 NYS2d 559 (2d Dept 2003);

Bopp v A.M. Rizzo Elec. Contractors, Inc., 19 AD3d 348, 796 NYS2d 153 (2d Dept 2005);

Cowan v ADF Const. Corp., 26 AD3d 802, 809 NYS2d 735 (4th Dept 2006).

 

 

 

 

Adams held reg inapplicable where π allegedly tripped on wire mesh placed on floor area where concrete was to be poured b/c not π in “passageway” when tripped and wire mesh was integral part of floor under construction and thus not same as dirt/debris.

Cafarella held reg did not apply where π slipped and fell while working in rear bed of dump trunk b/c truck bed not “passageway.”

Herman held ∆ not entitled to dismissal of claim under reg where π fell in basement b/c reg sufficiently specific.

Mendoza held dumpster where π stepped on nail did not constitute a “passageway” under reg and thus reg did not apply to this case.

Gavigan held reg inapplicable to incidents occurring on out-of-doors dirt pathway.

Maynard held reg inapplicable where π tripped in hole on lawn at residential site or on worn pathway workers used to traverse lawn and out-of-doors dirt pathway not “passageway” under reg.

Dacchille held wire mesh storage area in which π injured while retrieving 200 pound reel of cable wire did not constitute “passageway” under reg.

Salinas held inapplicable where π not using the area as a passageway where incident occurred.

Bopp held issue of fact whether reg applied to π who slipped on piece of cable while walking through corridor to where he was working, was injured in a passageway under reg. 

Cowan found issue of fact whether area “passageway” under reg where π tripped and fell at construction site.

Smith held reg applied to unrailed staircase b/c π tripped on tool bucket & fell in “passageway.”

 

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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                                                                      Cassandra A. Kazukenus

            [email protected]                                                            [email protected]

 

            Michael F. Perley                                                                 Jennifer A. Ehman

            [email protected]                                                           [email protected]

           

            V. Christopher Potenza                                                        Marc A. Schulz

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