Labor Law Pointers

 

Volume V, No. 3

Wednesday, January 6, 2016

 

A Monthly Electronic Newsletter Addressing

New York State Labor Law

Decisions and Trends

 

From the Editor:

 

Do you have a situation; if you do we are here to help.

 

I got an email from a client just before Christmas with a question about lost wages claims by individuals not legally in the country.  We run into this periodically, and set out to provide him with some answers. 

 

It is an interesting issue, one we have touched upon a few times in the past in Labor Law Pointers, but this time we set out some answers to specific scenarios and have decided that this is information that everyone could use so we are putting it in here.  Thus is the short version but if anyone wants the memo we drafted in support just let me know.  Thanks to Marc for putting this together.

 

As always, please feel free to contact us with any issues, situations or requests for training, we are always here to help.

 

Happy New Years to all, hope 2016 brings happiness, health and fulfillment.

 

David

 

 

CAN AN UNDOCUMENTED ALIEN PLAINTIFF ASSERT A FUTURE LOST WAGE CLAIM IN A LABOR LAW CASE IF PLAINTIFF SUBMITED FRAUDULENT DOCUMENTS TO THE EMPLOYER? (MAS)

 

This issue turns on what actions, if any, did the employer take to comply with its requirements under the federal Immigration Reform and Control Act of 1986, which places the onus on the employer to ensure that it is hiring a person authorized to work.  Consider these two scenarios:

 

Scenario 1 à employee submits fraudulent document to induce an employer to hire him and the employer hired said employee without verifying the employee’s eligibility for employment by failing to obtain the proper Form I-9 documents.

 

Result: the undocumented alien plaintiff will be permitted to assert a future lost wage claim (see Janda v Michael Rienzi Trust, 78 AD3d 899 [2d Dept 2010]; Coque v Wildflower Estates Developers, Inc., 58 AD3d 44, 867 NYS2d 158 [2d Dept 2008]).

 

Scenario 2 à employee submits fraudulent document to induce an employer to hire him and the employer fully documents its verification process on the Form 1-9.

 

Result: Labor Law defendant can obtain dismissal of an undocumented aliens’ future lost wage claim where it can show that the employer  fully documented its verification process on the Form I-9 (see Ambrosi v 1085 Park Ave. LLC2008 WL 4386751, No. 06-CV-8163 [BSJ] [S.D.N.Y. 2008]).

 

Note that the general rule is that a plaintiff’s illegal status does not bar recovery of lost wages, even if based on potential United States earnings (Majlinger v Cassino Contr. Corp., 25 AD3d 14, 802 NYS2d 56 [2d Dept 2005] [“the jury may take the plaintiff’s status into account, along with the myriad other factors relevant to a calculation of lost earnings, in determining, as a practical matter, whether the plaintiff would have continued working in the United States throughout the relevant period, or whether his or her status would have resulted in, e.g., deportation or voluntary departure from the United States”]).

 

 

 

 

 

 

Adams HighC

 

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.

 

Velez v City of New York

December 3, 2015

Appellate Division, First Department

 

Plaintiff allegedly tripped over a drain cover on the roof of a worksite.  The trial court denied defendants’ motion for summary judgment dismissing plaintiff’s alleged violations of Labor Law §§ 241(6), 200 and common-law negligence.

 

Labor Law § 241(6) (JAE)

                                

The First Department agreed with the trial court finding that plaintiff’s testimony regarding the lighting conditions of the rear area of the roof raised a triable issue as to whether the work area was adequately illuminated.  Although defendants’ witnesses denied that there was inadequate lighting of the roof top in their affidavits, there was no evidence that any of them were present at the worksite on the evening of plaintiff’s accident.  And, in any event, the conflicting versions of the lighting conditions merely raise issues of credibility that cannot be resolved on a motion for summary judgment.

 

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

 

The First Department likewise affirmed, holding the trial court properly declined to dismiss the Labor Law § 200 and common-law negligence claims in this action where plaintiff alleges he was injured when he tripped over a drain cover on the roof of the worksite because of inadequate illumination. Although defendants argued they cannot be held liable for any lack of illumination because they did not create that condition or have notice of it, defendant failed to demonstrate that they lacked constructive notice of the alleged condition by offering evidence as to the time that the area where plaintiff fell was last inspected.

 

Howard v Turner Constr. Co.

December 15 2015

Appellate Division, First Department

 

Plaintiff fell from a 12- to 14-foot A-frame ladder that was not fully open and in the locked position but rather leaned up against the wall, allegedly due to a pile of sheetrock being stored on the floor where he was working.  The trial court granted plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) against Turner and AU 229 (collectively “defendants”), and denied defendants’ motion to dismiss the §§ 240(1) and 241(6) claims as well as third-party defendant High Rise’s counterclaim for common-law indemnification.  The trial court also granted defendants’ motion to dismiss the § 200 and common-law negligence claims.

 

Labor Law § 240(1) (DRA) 

 

The First Department affirmed the trial court’s decision to grant plaintiff’s motion for summary judgment because plaintiff was not the sole proximate cause of his accident, “and any negligence on his part in leaning an unopened A-frame ladder against the wall is not a defense to his Labor Law § 240(1) claim.”  Since it was undisputed that the ladder was “unsecured”, the court held irrelevant the defendants’ argument that the ladder was not defective.

          

PRACTICE POINT:  The positioning of the ladder, where it is undisputed that the plaintiff could not open the ladder properly, does not create a sole proximate cause defense. An improperly placed ladder, even when placed there by the plaintiff, is a violation of 240(1), and thus nothing else can be the sole proximate cause.  This is the reasoning the courts have followed for years, it may well be eroding now but change in this area is glacial.  Evidence of this is that many courts are now, in their decisions, pointing out that the plaintiff had no other option of how to place the ladder or that others placed the ladder the plaintiff was working on in denying the sole proximate cause defense. 

 

Labor Law § 241(6) (JAE)

 

In view of the foregoing, plaintiff’s Labor Law § 241(6) claim was deemed academic.

 

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

 

The First Department affirmed dismissal of the Labor Law § 200 and common-law negligence claims , holding that this issue is unpreserved for appellate review, since plaintiff failed to oppose that part of defendants' motion that sought summary dismissal of those claims.  In any event, dismissal is warranted, since plaintiff's injury was caused by the manner and means of his work, including the equipment he used, and plaintiff was supervised solely by his employer's foreman. The daily presence of one of Turner's superintendents exercising “general supervisory authority at the work site” is insufficient to warrant imposition of liability on Turner.

 

Indemnity Issues in Labor Law (SEP)

                                                                                                                                     

 

Likewise, defendant High Rise’s claims for common law indemnification against Turner were dismissed where, as here, Turner was not negligent and did not exercise actual supervision, direction or control of the work leading to plaintiff’s injury.

 

Kristo v Board of Educ. of the City of N.Y.

December 17, 2015

Appellate Division, Second Department

                                         

Plaintiff was working on a scaffold with allegedly unsecured planks, which shifted when he stepped on the platform because three of the required planks were missing.  The trial court denied plaintiff’s motion for partial summary judgment on his §§ 240(1) and 241(6) claims, and granted defendants’ cross-motion to dismiss the § 200 and common-law negligence claims.

 

Labor Law § 240(1) (DRA) 

 

The First Department reversed the trial court’s decision and granted plaintiff’s motion because plaintiff was not the sole proximate cause of his accident since a proximate cause of his injury occurred when the unsecured planks shifted.  Defendants’ recalcitrant worker defense, based on plaintiff’s alleged entry into an area of the scaffold that had been cordoned off, was rejected by the court because there was no evidence that plaintiff had been instructed on the day of his accident not to enter or use the cordoned-off area. 

 

PRACTICE POINT:  A scaffold missing boards which causes a plaintiff to fall is going to be a 240(1) case all day.  It is the recalcitrance issue which somewhat baffles me here today.  The court seems to be basing the denial of the recalcitrant worker defense on the fact that the plaintiff was not told not to use that portion of the scaffold that day.  This seems to me to be a departure from what the courts have been saying about the timing issue.  While some other courts, the First in particular, have been looking to an “immediate and active direction” the Fourth does not appear to have the same time sensitive concerns.

 

Labor Law § 241(6) (JAE)

 

Given the foregoing determination, the court indicated that it did not need to address the § 241(6) claim.  Nevertheless, the court still held that the trial court erred in denying plaintiff summary judgment on his Labor Law § 241(6) claim predicated on defendants’ violation of 12 NYCRR 23—5.1(e)(1), which requires scaffold planks to be “laid tight.” 

 

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

 

The First Department reversed and found the trial court erred in granting defendants summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims, since issues of fact exist regarding whether defendants created or had constructive notice of the scaffold's defective condition, and whether they exercised supervisory control over the erection and placement of the scaffold.

 

Bonaerge v Leighton House Condomimium

December 29, 2015

Appellate Division, First Department

 

A structure consisting of three steel beams in the shape of an upside-down “U” was being lowered toward plaintiff by two workers.  Plaintiff stood in front of the horizontal beam to grab it and assist in lowering the structure to the ground.  The two workers lost control of the structure, causing it to fall toward and strike plaintiff as it fell to the ground.

 

The trial court granted plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim, and granted Leighton and Cooper judgment on their contractual indemnification against Integrated, and Integrated’s claim against Rockledge.  The trial court also denied Rockledge’s cross-motion to dismiss Leighton and Cooper’s contractual indemnification claim against Integrated, and of Integrated’s claim against Rockledge.

 

Labor Law § 240(1) (DRA) 

 

The Second Department affirmed the trial court’s decision to grant plaintiff summary judgment on this claim because plaintiff established the beam “required securing for the purposes of the undertakings” through the submission of an expert affidavit.  It was also undisputed that no enumerated safety devices were provided, “and the testimony and expert opinion that such devices were neither necessary nor customary is insufficient to establish that absence of a Labor Law § 240(1) violation.”  This case follows the Runner and Wilinski cases where an object being lowered from the same level, which does not necessarily truly fall, but injures the plaintiff in the process of being lowered due to the force of gravity is a 240(1) case.

 

PRACTICE POINT:  Runner and Wilinski are two of the most important cases to come out in the past several years.  It is critical to recall that 1) the object does not need to specifically fall on the plaintiff any longer and 2) the object can “fall” from the same level as the plaintiff and still be considered a 240(1) case.  If you have a second, and I know few of us do, there cases that are worth a read again.  Remember, all you need do is click on the hyperlink in the text here and it will take you to the official reported decision.

 

Indemnity Issues in Labor Law (SEP)

 

Leighton and Cooper moved for, and were granted, contractual indemnity against Integrated.  The clause at issue broadly provided that Integrated would indemnify both for losses which arose from its work.  Here, plaintiff was employed by Rockledge.  Rockledge was at the jobsite due to a subcontract it previously entered into with Integrated.

 

Integrated, itself, was entitled to contractual indemnity from Rockledge due to a clause which was triggered for loss “caused directly and solely by Rockledge.”  Here, that threshold was met, and the indemnity clause applied.

 

Maggio v 24 W. 57 APF, LLC

December 29, 2015

Appellate Division, First Department

 

Plaintiff was descending from the top of scaffold stairs when he “went flying” down the flight of stairs to the next landing, which he rolled off and then fell to floor 12-16 feet below.  Plaintiff claims he fell due to the lack of anti-slip material on the plywood stairs he stepped on immediately before he fell and the fact that slippery sheetrock powder and sawdust had collected on the staircase, which was “always there.”

 

Plaintiff filed the NOI before depositions of the property owners, 24 West and ATNY (“defendants”), or the subcontractor who constructed the scaffold, Atlantic.  Defendants filed their summary judgment motions to comply with the court’s rules, which also provided that the timeliness of dispositive cross-motions was determined by their filing date, not the filing of the initial motion.  The general contractor, R&R, moved to strike the NOI.  Plaintiff’s employer, third-party defendant O’Kane, argued there was an issue of fact as to who owned the premises.

 

The trial court granted the motion to strike, ordered discovery to be completed, and a day later issued an Order finding that defendants’ submissions did not establish who the owner was.  After all depositions were conducted, Plaintiff again filed the NOI, and with 30 days defendants again moved for summary judgment dismissing the Labor Law § 200 and common-law negligence claims, and for contractual and common-law indemnification against R&R and Atlantic.  Plaintiff waited to file his cross-motion for partial summary judgment on his Labor Law § 240(1) claim until 60 days of filing the NOI, asserting that the merits of the cross-motion only became apparent upon receipt of defendants’ motion.  The trial court denied all motions as untimely.

 

Labor Law § 240(1) (DRA) 

 

Plaintiff argued to the Frist Department that he is entitled to summary judgment on this claim “because the lack of slip protection on the scaffold stairs constituted a violation of the statute.”  Plaintiff also argued that his cross-motion should have been considered because it brought up a nearly identical issue to that raised by defendants’ timely motion and because the fact that Atlantic’s deposition was only held one week after the NOI was filed reasonably delayed him from filing the motion on time.

 

The First Department, relying on Filannino v Triborough Bridge & Tunnel Auth., held that plaintiff’s cross-motion was untimely because it was not sufficiently related to the main motion.  Thus, even though plaintiff presented facts and arguments in his cross-motion suggesting that his accident was caused by defendants’ failure to provide him with an adequate safety device, the court was “constrained” by its own precedent to conclude that the trial court properly declined to consider plaintiff’s cross-motion.  The court noted that although Atlantic’s deposition was conducted after plaintiff filed the NOI, all of the testimony cited by plaintiff regarding the allegedly improper construction of the scaffold was duplicative of plaintiff’s own unrebutted testimony.

 

PRACTICE POINT:  First, always know when your papers are due.  Seems simple enough, but as we all know it never is.  Err on the side of caution.  Once burned twice shy.  There are hundreds of other cliché saying I could put in here but in the end there is no other way to put it, be careful.

 

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

 

The First Department found questions of fact as to whether 24 West or ATNY had constructive notice of the dangerous condition and as such they would not have been entitled to summary judgment dismissing plaintiff's common-law negligence and Labor Law § 200 claims against them.  Defendants failed to establish prima facie entitlement to summary judgment on the issue as neither witness had personal knowledge about whether 24 West and ATNY had any personal involvement with the construction, nor did the testimony that they submitted from the various contractors establish that 24 West and ATNY could not have been on notice of this point.

 

To the contrary, R&R's superintendent testified that Ana Tzarev walked through the construction site two or three times, and that a representative of the building owner attended weekly meetings, at which time she would walk through the site. O'Kane's foreman similarly testified that Ana Tzarev walked through the site.  It is notable that the presence of sheetrock dust, the condition which substantially contributed to the accident, would have been observable to any representative of 24 West or ATNY visiting the premises.

 

Indemnity Issues in Labor Law (SEP)

 

With respect to 24 West and ATNY’s claims for contractual indemnity against R&R (as General Contractor), the Appellate Division noted that the contract in question did not identify 24 West as “owner.”  As it was not properly identified, nor otherwise referenced in the contract, 24 West had no right to seek indemnity from R&R. 

 

ATNY, on the other hand, was an identified signatory of the contract.  However, the contract only provided that indemnity for losses arising our of R&R’s negligent acts.  As such, the Court noted that ATNY was only entitled to be indemnified for that percentage of the loss apportioned to R&R.  Under no circumstance, would ATNY be able to recovery for any percentage of negligence attributable to it. 

 

With respect to ATNY’s claim for contractual indemnity against O’Kane and Atlantic, the Appellate Division held that the contract identified Ana Tzarez Management Limited.  The actual leasee of the premises was Ana Tzarev New York, LLC.  Because indemnity clauses are strictly construed, the Court noted that O’Kane and Atlantic’s contracts, respectively, conferred only a right upon Ana Tzarev Management Limited – who, unfortunately, was not a party to the litigation.  In so holding, the Court ruled that a simply typographical error (which was alleged to have been the cause of the confusion) was not a sufficient excuse to rewrite the clear and concise terms of the clause.

 

Finally, any claims for common law indemnity against O’Kane were dismissed because plaintiff did not sustain a grave injury.  As such, O’Kane was entitled to the protections of Section 11 of the Workers’ Compensation Law. 

 

Guevera v Simon Prop. Group, Inc.

December 16, 2015

Appellate Division, Second Department

 

Plaintiff, an employee of third-party defendant County Wide Electric, allegedly was injured when he fell from a ladder in a retail store owned by defendant Pacsun and leased from Simon.  Plaintiff was standing on the ladder, checking to see if the lighting fixtures in the ceiling needed new bulbs, when he removed the cover of the ballast box of one of the fixtures and received an electrical shock from a loose cable, causing him to fall.  The trial court denied plaintiff’s motion for partial summary judgment on his Labor Law § 240(1), and granted defendants’ cross-motion to dismiss the complaint.

 

Labor Law § 240(1) (DRA)

 

The Second Department held that defendants were entitled to dismissal of this claim by offering proof that plaintiff was involved in routine maintenance rather than repair work.

 

PRACTICE POINT:

 

Labor Law § 241(6) (JAE)

 

The court also held that defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 241(6) claim as plaintiff was not involved in the activity of construction, excavation, or demolition, and the statute does not protect workers involved in maintenance or replacement of parts.

 

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

 

The Second Department affirmed dismissal of the Labor Law § 200 and common-law negligence claims holding defendants demonstrated their prima facie entitlement to judgment as a matter of law by presenting evidence that they neither created nor had notice of the loose cable that allegedly caused the plaintiff's electric shock, and plaintiff failed to raise a triable issue of fact.

 

Gikas v 42-51 Hunter St., LLC

December 23, 2015

Appellate Division, Second Department

                                        

Plaintiff was walking on the ground level toward a sidewalk bridge that was being dismantled when an unsecured steel I-beam fell and struck him.  The trial court granted plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim, and granted defendant/third-party plaintiff Colgate’s summary judgment on its contractual indemnification claim against Roe Development.  The trial court also granted third third-party defendant Danica’s motion to dismiss the third-party complaint against it.

 

Labor Law § 240(1) (DRA)

 

The Second Department affirmed the trial court’s decision to grant plaintiff summary judgment as his evidence demonstrated that an object, while being lowered from atop a sidewalk bridge, fell because of the absence of a safety device of the kind enumerated in the statute and struck plaintiff at ground level.

 

PRACTICE POINT:  There is no real surprise here, a beam being lowered into a truck is dropped and falls on the plaintiff, the beam is an item which should be secured, was not, and thus falls on the plaintiff.  Anyone surprised here?

 

 

Perez v 286 Scholes St. Corp.

December 30, 2015

Appellate Division, Second Department

                                        

Plaintiff was using a grinder, which had its “protector” removed, to cut a sheet of metal in order to repair a gate on defendants Flaum and 286 Scholes St.’s premises.  He was injured when a piece of the sheet of metal and a piece of the grinder shot out, striking his hand.  The trial court granted defendants’ motion for summary judgment dismissing the Labor Law § 241(6) claim based on Industrial Code (12 NYCRR) § 23-1.5(c)(3) as that regulation is not sufficiently specific to support such a claim. 

 

Labor Law § 241(6) (JAE)

The Second Department reversed.   It began by reciting the Court of Appeals’ holding in Misicki v Caradonna.  There the Court held that 12 NYCRR 23-9.2(a) was sufficiently concrete and specific to serve as a predicate to a section 241(6) cause of action.  In that decision, the Court focused on the following portion of the provision: “Upon discovery, any structural defect or unsafe condition in such equipment shall be corrected by necessary repairs or replacement.”  The Court found that this portion of section 23-9.2(a) imposes an affirmative duty and mandates a distinct standard of conduct.

In this case, the plaintiff's Labor Law § 241(6) claim was predicated on an alleged violation of 12 NYCRR 23-1.5(c)(3), which provides that “[a]ll safety devices, safeguards and equipment in use shall be kept sound and operable, and shall be immediately repaired or restored or immediately removed from the job site if damaged.”  Sections 23-9.2(a) and 23-1.5(c)(3) each set forth an action to be taken (“corrected by necessary repairs or replacement”; “repaired or restored . . . or removed”) and set forth the trigger or time frame for taking such action (“upon discovery”; “immediately . . . if damaged”). Therefore, it found the provision sufficiently concrete and specific to support the plaintiff’s Labor Law § 241(6) cause of action.

Furthermore, the Court found that defendants failed to eliminate all triable issues of fact as to whether the plaintiff was performing “construction work,” as defined by 12 NYCRR 23-1.4(b)(13).

Sarata v Metropolitan Transp. Auth.

December 30, 2015

Appellate Division, Second Department

                                        

Plaintiff was struck by four-foot piece of concrete that fell through an opening in the protective vertical netting as he was standing at ground level outside of the “controlled access zone.”  The trial court denied plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim against the MTA defendants, who argued that the statute was not applicable and that summary judgment was premature. 

 

Labor Law § 240(1) (DRA)

 

The Second Department reversed and held that plaintiffs’ submissions demonstrated that he suffered harm that flowed directly from the application of the force of gravity to the piece of concrete that struck him and that given the nature and purpose of the work that was being performed at the time of his injury, the falling debris presented a significant risk of injury such that the MTA defendants were obligated under the statute to use appropriate safety devices to safeguard the injured plaintiff from the harm it posed.

 

The court further stated that plaintiffs established that the vertical netting had pulled loose from the plywood barricade, creating an opening through which the concrete that struck plaintiff traveled.  Thus, the court held the netting constituted a safety device under the statute and plaintiff proved that it was not so constructed, placed and operated as to give proper protection.

 

PRACTICE POINT:  Once again this case seems quite obvious, there is a safety device in place, a net specifically designed to prevent the specific risk which injured the plaintiff, debris leaving the containment area, and it failed to accomplish that goal.  Thus the safety device failed and there was a violation of the statute.

 

 

Hill v Country Club Acres, Inc.

December 10, 2015

Appellate Division, Third Department

                                        

Plaintiff fell from a ladder while he was removing a ceiling fan.  He was the sole member of Round Lake, which had purchased a restaurant as well as its equipment, including the ceiling fans. The trail court granted defendant’s motion for summary judgment dismissing the complaint, and denied plaintiff’s cross-motion for partial summary judgment on his Labor Law § 240(1) claim.

 

Labor Law § 240(1) (DRA)

 

The Third Department affirmed dismissal of plaintiff’s complaint because defendant established as a matter of law that plaintiff was not hired by anyone and was not acting as an employee of defendant Round Lake when he removed the ceiling fans.  The court rejected plaintiff’s argument that he “employed” by Round Lake, which was inconsistent with his deposition testimony that he was the company’s owner rather than its employee.

 

PRACTICE POINT:  Start every case at the beginning, is the plaintiff an appropriate plaintiff under the labor law.  The statute affords protection to a worker who is “so employed” and thus a volunteer does not qualify.

 

 

Trombley v DLC Elec., LLC

December 17, 2015

Appellate Division, Third Department

                                        

Plaintiff tripped on conduits that stuck up from the floor and fell.  The trial court granted defendants’ motion to dismiss plaintiff’s complaint alleging violations of Labor Law §§ 241(6), 200 and common-law negligence. 

 

Labor Law § 241(6) (JAE)

The Third Department affirmed.  The court began by reciting the rule that absolute liability imposed upon owners and general contractors pursuant to Labor Law § 241 (6) does not apply to prime contractors having no authority to supervise or control the work being performed at the time of the injury.”

DLC Elec., LLC, the electrical subcontractor (“DLC Electric”), submitted testimony whereby plaintiff admitted that no one other than Bast Hatfield (the general contractor and his employer) told him how to perform his work, which included installing door frames and finishing sheetrock.  A project manager for DLC Electric established that DLC Electric had contracted with Bast Hatfield for the limited purpose of performing electrical work.  Further evidence established that Bast Hatfield, and not DLC Electric, had authority over safety measures on the site.  Accordingly, plaintiff was entitled to summary judgment.

 

Turning to summary judgment in favor of the property owner and developer, plaintiff contended that its allegations pursuant to 12 NYCRR 23-1.5 and 23-1.7 (d), (e) and (f) should have survived defendants’ motion for summary judgment. 12 NYCRR 23-1.5 recites the “General responsibility of employers” and does not provide a basis for a claim under § 241 (6).  12 NYCRR 23-1.7 (d) pertains to walking surfaces and slippery conditions; plaintiff testified that his injuries were caused by tripping on exposed conduits, rendering this provision inapplicable. While 12 NYCRR 23-1.7 (e) applies to tripping hazards, the provision does not apply to injuries caused by conduits such as those described by plaintiff, which were “an integral part of the construction.”  Finally, according to plaintiff’s testimony, his accident did not involve him ascending or descending to a different level, which renders 12 NYCRR 23-1.7 (f), regarding “Vertical passage,” inapplicable.

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

 

The Third Department affirmed dismissal of the Labor Law § 200 claims against defendants as well.  Liability pursuant to Labor Law § 200 does not attach to a defendant who lacked the authority to control the activity that led to the injury.   Defendants submitted the testimony of plaintiff, who testified that no one other than Bast Hatfield told him how to perform his work, which included installing door frames and finishing sheetrock.

 

A project manager for DLC Electric established that DLC Electric was a subcontractor, having contracted with Bast Hatfield for the limited purpose of performing electrical work.  Further evidence established that Bast Hatfield, and not DLC Electric, had authority over safety measures on the site.

 

Piche v Synergy Tooling Sys., Inc.

December 23, 2015

Appellate Division, Fourth Department

                                        

Plaintiff fell while wearing stilts in order to install a ceiling tile.  He fell when he stepped on a piece of conduit on the floor.  The trial court denied defendant’s motion for summary judgment dismissing the complaint.

 

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

 

The Fourth Department held that the trial court properly determined defendant failed to establish its entitlement to judgment dismissing the common-law negligence claim.  It is well established that a subcontractor may be held liable for negligence where the work it performed created the condition that caused the plaintiff's injury even if it did not possess any authority to supervise and control plaintiff's work or work area.  Plaintiff testified that defendant's employees were painting outside the room where he was working, that the conduit had previously been located in that area, and that he had seen defendant's employees move the conduit the week before his accident in order to access the area they needed to paint.

 

Fronce v Port Byron Tel. Co., Inc.

December 23, 2015

Appellate Division, Fourth Department

                                        

Plaintiff fell from an aerial bucket attached to a boom while attempting to remove cables from a utility pole on defendants’ property.  The trial court denied plaintiff’s and defendants’ motion for summary on the issue of liability with respect to Labor Law § 240(1).

 

Labor Law § 240(1) (DRA)

 

“Even under a liberal construction of section 240(1), ownership of the premises where the accident occurred, standing alone, is insufficient to impose liability under section 240(1) on an out-of-possession property owner who does not contract for the injury-producing work.  Rather, a prerequisite to the imposition of liability upon such an owner is some nexus between the owner and the worker, whether by a lease agreement or grant of an easement, or other property interest.”

 

The Fourth Department found such a nexus between defendants and plaintiff because he was employed by a successor in interest to a corporation to which defendants had granted an easement allowing the corporation and its successors to maintain its utility poles and cables on defendants’ property.

 

The court also held plaintiff established that he was engaged in a protected activity, that his accident involved an elevation-related hazard that the statute was intended to protect, and that defendants violated their statutory duty to ensure that the aerial bucket was so placed and operated as to give proper protection to plaintiff.  Thus, the Fourth Department reversed the trial court and granted plaintiff’s motion for summary judgment.  

 

PRACTICE POINT:  The court found that the statute was violated as the bucket was not “so placed and operated to give proper protection to plaintiff”.  Then they stated that the plaintiff’s failure to wear a safety harness and lanyard was mere comparative negligence and could not be the sole proximate cause of the accident.  Be very careful in cases with multiple potential causes of an accident and try to reduce it to a single cause for which there is a defense.  If there are multiple causes of an accident then none of them can be the sole proximate cause of the accident.

 

Quiros v Five Star Improvements, Inc.

December 31, 2015

Appellate Division, Fourth Department

                                        

Plaintiff was operating a pneumatic nail gun to install a new roof when a nail ricocheted and penetrated his right eye.  The trial court granted plaintiff’s motion for summary judgment on his Labor Law § 241(6) claim predicated on Industrial Code regulation § 23-1.8(a), and denied defendant’s cross-motion to dismiss the complaint.

 

Labor Law § 241(6) (JAE)

The Fourth Department began by rejecting defendant's contention that it was entitled to summary judgment pursuant to this Court's holding in Herman v Lancaster Homes.  Unlike the circumstances in Herman, plaintiff herein was not manually hammering nails but, rather, was operating a pneumatic nail gun when a nail ricocheted and penetrated his right eyeIn the courts view, the dangers a nail gun presents to the eyes are more apparent than the dangers of manual hammering and the plaintiff’s use of the nail gun clearly falls within the regulatory definition of engaging “in any other operation which may endanger the eyes” (12 NYCRR 23-1.8 [a]).

However, the court agreed with defendant that the trial court erred in granting plaintiff’s motion inasmuch as defendant raised triable issues of fact whether it had violated 12 NYCRR 23-1.8 (a) and whether plaintiff was comparatively negligent.  Specifically, there was a triable issue of fact whether defendant provided eye protection, or made such available, to plaintiff on the day of the accident and, if so, whether plaintiff was comparatively negligent in refusing to use the eye protection. Summary judgment was therefore inappropriate. 

Fladd v Installed Bldg. Prods., LLC

December 31, 2015

Appellate Division, Fourth Department

                                        

Plaintiff was standing on the third or fourth rung of a ten-foot A-frame ladder when he was allegedly struck in the ribs by a garage door that suddenly opened by a coworker.  Plaintiff claimed that when he was struck by the door, the ladder became more “wobbly” and he injured his back in attempting to steady the ladder and prevent himself from falling.  The trial court denied defendants’ motion to dismiss the Labor Law §§ 240(1), 241(6) but granted dismissal of the § 200 and common-law negligence claims, and denied plaintiff’s cross-motion with respect to his § 240(1) claim. 

 

Labor Law § 240(1) (DRA)

 

The Fourth Department found an issue of fact regarding how the accident occurred and whether the ladder was “placed and operated as to give proper protection” to plaintiff, particularly in light of the various inconsistences in how the accident occurred.  Defendants submitted the affidavit of an engineering expert who concluded that based on his personal examination and replication of the accident conditions, the accident could not have happened as plaintiff alleges.

 

PRACTICE POINT:  Two important points to emphasize here.  First, the plaintiff does not need to fall to the ground to have a valid labor law case.  If the plaintiff is injured while preventing himself from falling from an elevated worksite, that alone is sufficient to invoke the protections of the labor law.  Second, where there are differing versions of how the accident occurred, from whatever source, utilize an expert to opine that it could not have occurred the way the plaintiff is claiming to support the opposition to the Summary Judgment motion based on a question of fact as to whether the statute was violated given one scenario which violates the statute and one which does not.

 

 

Labor Law § 241(6) (JAE)

The Fourth Department rejected the contention that the lower court erred in denying defendants’ summary judgment dismissing the Labor Law § 241 (6) cause of action.  Pursuant to 12 NYCRR 23-1.21 (b) (4) (ii), “[s]lippery surfaces and insecure objects such as bricks and boxes shall not be used as ladder footings” and, pursuant to 12 NYCRR 23-1.21 (e) (3), “[s]tanding stepladders shall be used only on firm, level footings.”  In addition, 12 NYCRR 23-1.21 (b) (9) requires that ladders “shall not be placed in door openings unless the doors are securely fastened open, closed and locked or otherwise guarded against swinging.”  The court agreed with plaintiff that defendants failed to establish as a matter of law that those provisions of the regulation were not applicable to the facts of this case, and it further agreed with plaintiff that there were issues of fact concerning how the accident happened and whether the regulations were violated.

 

 

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.

 

Smith v McClier Corp., 38 AD3d 322, 831 NYS2d 413 (1st Dept 2007);

 

Burkowski v Structure Tone, Inc., 40 AD3d 378, 836 NYS2d 130 (1st Dept 2007);

 

Tucker v Tishman Const. Corp. of New York, 36 AD3d 417, 828 NYS2d 311 (1st Dept 2007);

 

Cook v Orchard Park Estates, Inc., 73 AD3d 1263, 902 NYS2d 674 (3d Dept 2010);

 

Aragona v State, 74 AD3d 1260, 905 NYS2d 237 (2d Dept 2010);

 

Mugavero v Windows by Hart, Inc., 69 AD3d 694, 894 NYS2d 448 (2d Dept. 2010);

 

Torres v Forest City Ratner Companies, LLC, 89 AD2d 928, 933 NYS2d 71 (2d Dept 2011);

 

Booth v Seven World Trade Co., L.P., 82 AD3d 499, 918 NYS2d 428 (1st Dept 2011);

 

Baker v City of Buffalo, 90 AD3d 1684, 936 NYS2d 457 (4th Dept 2011);

 

Jara v New York Racing Ass’n, Inc., 85 AD3d 1121, 927 NYS2d 87 (2d Dept 2011);

 

Rodriguez v BCRE 230 Riverdale, LLC, 91 AD3d 933, 938 NYS2d 146 (2d Dept 2012);

 

Eversfield v Brush Hollow Realty, LLC, 91 AD3d 814, 937 NYS2d 287 (2d Dept 2012);

 

Thomas v Goldman Sachs Headquarters, LLC, 109 AD3d 421, 970 NYS2d 224 (1st Dept 2013);

 

Cumberland v Hines Interests Ltd. Partnership, 105 AD3d 465, 963 NYS2d 173 (1st Dept 2013);

 

Purcell v Metlife Inc., 108 AD3d 431, 969 NYS2d 43 (1st Dept 2013);

 

Steiger v LPCiminelli, Inc., 104 AD3d 1246, 961 NYS2d 634 (4th Dept 2013);

 

Best v Tishman Const. Corp. of New York, 120 AD3d 1081, 993 NYS2d 16 (1st Dept 2014);

 

Costa v State, 123 AD3d 648, 997 NYS2d 690 (2d Dept 2014);

 

Thornton v Riverbay Corp., 117 AD3d 521, 985 NYS2d 244 (1st Dept 2014);

 

Marshall v Glenman Industrial & Commercial Contractor Corp., 117 AD3d 1124, 985 NYS2d 169 (3d Dept 2014);

 

Caudill v Rochester Institute of Technology, 125 AD3d 1392, 4 NYS3d 408 (4th Dept 2015)

 

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

Burkowski held reg did not apply when π fell into “split” position after being pushed into pile of stacked tiles while walking across finished portion of floor in room 18 X 20 ft.

Tucker held reg inapplicable to rebar steel over which π tripped b/c it was integral part of the work being performed; not “debris.”

Cook held reg inapplicable to snow-covered plastic on which π fell.

Aragona found issues of fact whether π tripped in a passageway, and whether padeye welded to deck of a work barge was an integral part of the construction, precluding summary judgment to ∆.

Torres found issues of fact whether materials which caused π’s injury were integral to work being performed; whether door and loose pipes were tripping or other hazards, and whether π injured in passageway or working area.

Booth held reg did not apply where π alleged tripping hazard may have been scattered materials.

Baker held reg did not apply where π fell while climbing through an opening that had been cut in a wall b/c fall not caused by tipped hazard.

Jara held reg applied to π injured when he tripped and fell from top of partially demolished wall and pile of accumulated demolition debris which was blocking doorway.

Rodriguez found issues of fact whether π tripped in a passageway.

Eversfield held reg inapplicable where π fell as a result of alleged improper placement of a portable restroom since he did not allege he tripped on any dirt, debris or other obstruction or condition that could cause tripping.

Thomas held issue of fact existed whether proximate cause of π’s injury was a tripping hazard when injury occurred within doorway to the outside terrace.

Cumberland held π’s depo raised an issue of fact as whether he fell in “passageway” or open work area under reg.

Purcell held open work area where π injured when he tripped over wet plywood not a “passageway” under reg.

Steiger held reg did not apply where π tripped and fell while exiting portable toilet, where he tripped on curb of sidewalk that bordered parking lot and never walked on sidewalk.

Best held ∆s failed to prove that π’s claim that she tripped over electrical cord did not occur in “passageway” under reg.

Costa held 1.7(e)(1) did not apply to incident where π, an oiler on a crane barge near a bridge, stepped from the steel beam onto a stack of wood which then gave way and caused him to fall because the stack of wood was 3-4 feet high and thus could not considered a tripped hazard. 

Thornton held reg inapplicable where π tripped on roll of tar paper b/c incident occurred when his jacket pocket caught on doorknob which dislodged roll of tar paper holding door open & incident only took place after roll fell from original position & was not an obstruction or tripping hazard in original location.

Marshall found issues of fact whether a general contractor’s failure to timely discover and remove a tripping hazard was reasonable and adequate under the circumstances.

Caudill held π’s depo wherein he claimed that the object on the ramp caused his fall insufficient to establish reg applied based on obstruction or condition that could cause tripping in a passageway.

 

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