Labor Law Pointers
Volume V, No. 5
Wednesday, March 2, 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. No situation too big, no situation too small, they are all, as Goldilocks said, just right. We live to solve your situation because your situation our situation once you make that call.
Some fun cases this month. I will give you a hypothetical and let you find the answer below. A kid’s camp has a fire and the kitchen burn down. One of the parents owns a construction company and volunteers to rebuild the kitchen. While his guys are rebuilding the kitchen one of the workers falls off a ladder and is injured. Is this a Labor Law case or not? Read the Lopez v La Fonda Boricua, Inc. case below. This is a bit like Jeopardy for Labor Law nerds.
As I mention most months we offer training to any and all comers. We will do it live, we will do it via webinar or even one on one with a phone call if you have an immediate situation. Always free of charge. We have seminars covering any topic labor law related, risk transfer related or any coverage situations you can imagine. Speaking of coverage anyone who dives, or even dabbles in the wide world of coverage should subscribe to Dan Kohane’s newsletter, Coverage Pointers. If you are not a subscriber drop him an email at [email protected] and he will put you on the distribution list. He and his merry band of coverage attorneys analyze, summarize and sometimes chastise the decisions of courts across the country.
Here is the fourth department we welcome three new judges to the appellate bench, we will be looking forward to seeing their decisions. All three of them, Justices NeMoyer, Curran and Troutman, will be great additions to what was a depleted stable of judges in Rochester. Similar appointment have been made across the state, we will be trying to take on a department each month and look at the past decisions of the new appointees to see where their labor law leanings are, if any.
Here in Buffalo we get spring one day, it was 60 degrees Sunday and we took the dog for a walk on the beach, and this morning I was chipping a half inch of ice off the car to open the door. In fact my secretary could not get into her car at all it was so encased in ice, and we had to send someone to pick her up. Think warm thoughts, spring will be here before you know it. Have a great month and we will see you in April. 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
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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.
DaSilva v Everest Scaffolding, Inc.
February 4, 2016
Appellate Division, First Department
Plaintiff allegedly fell from a scaffolding frame onto a platform after the scaffolding moved while attempting to remove a staple from a plastic covering on the building exterior while propping himself up on a cross-brace of the frame. Plaintiff climbed the cross-brace because the staple was six inches above his reach when he stood on the platform.
The trial court granted plaintiff’s motion for summary judgment on his Labor Law § 240(1), and denied defendants SPS Archstone’s motions to dismiss the Labor Law §§ 241(6), 200 and common-law negligence claims. The trial court also granted Everest Scaffolding’s motion to dismiss the contractual indemnification cross-claim, and denied SPS’s motion for summary judgment on its third-party claim for contractual indemnification.
The First Department affirmed summary judgment in favor of plaintiff because he established prima facie that his accident was proximately caused by a violation of the statute. SPS and Archstone’s recalcitrant worker defense, based upon plaintiff’s failure to use a ladder, was rejected by the court as unavailing in the absence of any evidence that plaintiff knew he was expected to use a ladder or that there was a “practice” of workers obtaining ladders themselves because it was “easily done.”
PRACTICE POINT: This case gives us the opportunity to reiterate the necessary elements of a sole proximate cause of recalcitrant worker defense. To be successful the defendant must establish that the plaintiff not only had an available safety device, that it was appropriate, that he was instructed or knew to use that device and that he, for no good reason did not use or misused the provided safety device. Absent any of these elements the defense will fail.
In light of the determination regarding the Labor Law § 240(1) claim, the Labor Law 241(6) is academic.
Labor Law § 200 and Common-Law Negligence (VCP)
The First Department held that in light of the affirmance of the Labor Law § 241(6) claim as against SPS and Archstone, the Labor Law § 200 and common-law negligence claims as against Archstone are academic. The Labor Law § 200 and common-law negligence claims as against SPS are not academic since they are relevant to the indemnification issues on appeal. Summary dismissal of those claims is precluded by triable issues of fact as to whether SPS exercised supervisory control over the work, which were raised by its foreman's testimony about SPS's direction of the work and daily inspections of the scaffolding. Triable issues of fact also exist as to whether SPS had constructive notice that the scaffolding was likely to shake while in use.
February 9, 2016
Appellate Division, First Department
Plaintiff’s complaint asserted negligence against defendants for an alleged trip and fall. The trial court granted defendants’ motion for summary judgment dismissing the complaint, and denied plaintiff’s Labor Law §§ 241(6) and 200 claims because “plaintiff asserted the Labor Law claims for the first time in his bill of particulars, and failed to allege them in his complaint. The purpose of the bill of particulars is to amplify the pleadings and may not be used to supply allegations and may not be used to supply allegations essential to a cause of action that was not pleaded in the complaint. Nor may the bill of particulars ‘add or substitute a new theory or cause of action.’”
Labor Law § 200 and Common-Law Negligence (VCP)
The First Department affirmed the dismissal of plaintiff’s Labor Law §200 and common-law negligence claims as against defendants Arc Development LLC and Riverdale Heights LLC. Plaintiff’s Labor Law claims were dismissed as they were not properly pled in the initial Complaint. Plaintiff's common-law negligence claim, which was pleaded in the complaint, was also properly dismissed as there was no evidence that defendants supervised or controlled plaintiff's work or had actual or constructive notice of the alleged defective condition over which plaintiff tripped.
Lannon 356 W. 44th St. Rest., Inc.
February 16 2016
Appellate Division, First Department
Plaintiff allegedly fell from a two-story building while installing flag holders on the exterior of defendants’ building façade for a St. Patrick’s Day celebration. Plaintiff testified his work involved marking the location of the screws, drilling three holes for each bracket, placing plastic fasteners in the holes, and attaching each flag holder with three screws. The trial court granted defendants’ motion for summary judgment dismissing the Labor Law § 240(1) claim.
The First Department affirmed the trial court’s decision to grant defendant’s motion for summary judgment because the plaintiff was not engaged in a protected activity under the statute at the time of his accident. The court cited to Joblon, Amendola v Rheedlen 125th St., LLC, and Bodtamn v Living Manor Love, Inc. in holding that plaintiff’s work did not constitute “altering” because it did not result in a “significant physical change” to the building’s structure.
PRACTICE POINT: Recall that the court in Joblon held that drilling a hole through a wall to run a wire was a close call as to what constituted a “significant physical change” to the building’s structure. Here the court did not find that temporarily putting up a few flags was a “significant physical change” and indicates that it was the “cosmetic and non-structural” nature of the placement of the flags just for the St. Patrick’s Day celebration. Cosmetic, non-structural and temporary is a combination to be remembered for the next case.
Somereve v Plaza Constr. Corp.
February 18, 2016
Appellate Division, First Department
Plaintiff was operating a prime mover (i.e. mini-forklift) to hoist a load of bricks weighing about 1,500 pounds onto scaffold five feet off the ground, when the prime mover flipped forward and plaintiff was ejected upward, hitting the ductwork/ceiling before he “slammed” onto the concrete floor. Before defense counsel completed the depositions of potential witnesses identified by plaintiff and a supervisor, the trial court granted plaintiffs’ motion for summary judgment on the Labor Law § 240(1) claim.
The First Department majority affirmed the trial court’s decision to grant plaintiffs’ motion for summary judgment, citing to Runner v New York Stock Exch., Inc. because “plaintiff was using the prime mover to hoist a load; if the prime mover pitched forward due to the force of gravity, it failed to offer adequate protection” and the statute applies. Likewise, the court held if the accident occurred because either the prime mover or scaffold could not support the weight of the brick load, then the accident also resulted from the application of the force of gravity to the load, and the statute applies. Thus, no further discovery or depositions were necessary because “under any version of the events …, plaintiff is entitled to summary judgment on this claim.
Justice Tom’s dissent takes the position that the evidence raises a factual issue as to whether plaintiff’s injuries were solely caused by his negligent operation of the machine in that the prime mover was caused to come into contact with the scaffold by plaintiff while he was either raising the pallet or while he was negligently lowering the pallet onto the scaffold when the fork had not yet cleared the top of the scaffold. Moreover, plaintiff could not explain how the his accident occurred, and there are at least two identified witnesses who were subpoenaed but not yet deposed who may be able to shed light on how the accident occurred.
The dissent further stated “there is no evidence of a statutory violation presented in this case” because “there was no proof that either the prime mover or the scaffolding were defective or inadequate to handle the work at issue”, and plaintiff did not argue that a hoisting device should have been provided to him as the majority suggests. The dissent distinguishes the Penaranda v 4933 Realty, LLC and Potter v Jay E. Potter Lbr. Co. cases relied upon by the majority as the forklift and bobcat provided in those cases were improperly overloaded whereas in this case, the evidence established the prime mover was capable of lifting the 1,500-pound pallet of bricks. Thus, the dissent held plaintiff’s motion was prematurely awarded.
PRACTICE POINT: This is becoming a constant issue for the defendant in labor law cases, the plaintiff moves for Summary Judgment and the defendant still has witnesses it wishes to depose. Our recommendation is to obtain statements, even if not sworn, from witnesses where it appears the statement will be helpful at an early stage in the litigation or investigation. At minimum it allows the defense to provide the court a reasonable expectation of information which would be pertinent to the defense of the action and not speculation which the courts are not allowing. A thorough investigation is helpful in virtually every case, if not in developing a sustainable defense then in recognizing early on that a case is more likely to result in Summary Judgment for the plaintiff and work to mediate the case to an early resolution. The 240(1) claim her was sustained mostly due to the fact that the accident was caused by the application of gravity to the load of bricks, which caused the machine to flip catapulting the plaintiff off the machine and causing his injury.
The dissent not have granted Summary Judgment as there is, in Justice Tom’s mind, a question if whether the plaintiff’s conduct, and only his conduct, caused the accident. It is logical that if the lift being operated by the plaintiff could handle the load when operated properly (and was thus an adequate and appropriate safety device), and it was not operated properly by the plaintiff, that his conduct in misusing the lift caused the accident. Sounds like sole proximate cause to me. With only one dissent this will not get further review other than by leave and we know how seldom that is granted.
Lopez v La Fonda Boricua, Inc.
February 25, 2016
Appellate Division, First Department
Plaintiff was working at a restaurant when he allegedly sustained injuries while using a ladder. The trial court denied Maygina Realty LLC’s motion for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims.
The First Department affirmed the trial court’s decision because Maygina failed to establish prima facie that plaintiff was not an “employee” but a “volunteer” within the meaning of the statute, although his employer may have agreed to perform the work at the restaurant gratuitously. Maygina also failed to establish that plaintiff was merely cleaning rather than performing renovation work under the statute or that he was the sole proximate cause of his accident because of the alleged misuse of the ladder.
PRACTICE POINT: This is a bitter pill to swallow for the owner. He had not hired anyone to do this job; it was purely voluntary as far as he was concerned. As a plaintiff must be “so employed’ to qualify as a plaintiff in a labor law case the owner would have expected that he was not open to liability. The fact that the plaintiff’s employer was paying him however makes the plaintiff a person so employed and not a volunteer and creates liability for the owner, an important factor to be understood to anyone who works with non-profits, churches and other organizations who accept volunteer help where the actual worker may be being paid for their time.
However, with regard to the Labor Law § 241(6) claim, it should have been dismissed. Three of the provisions upon which plaintiffs relied, related to ladder maintenance. These were inapplicable to the facts of this case (see Industrial Code [12 NYCRR] § 23-1.21[b][1], [b][3][ii], [b][8]), since there was no evidence that the ladder was incapable of supporting four times the maximum load, and the injured plaintiff testified that the ladder he used had locking braces, which he claimed he properly opened every time he set up the ladder. The remaining provision (12 NYCRR 23-1.21[e][2]) was not sufficiently specific to support a Labor Law § 241(6) claim.
February 3, 2016
Appellate Division, Second Department
Plaintiff fell from stairs on defendant Hasbani’s property that was being renovated, and commenced this action alleging violations of Labor Law §§ 240(1), 241(6), 200 and common-law negligence. The trial court, upon reargument, granted defendant MRM’s motion for summary judgment dismissing Hasbani’s cross claim for common-law indemnification.
February 10, 2016
Appellate Division, Second Department
Plaintiff was on the roof of a single-family house under new construction, pushing off snow. He knotted rope around his waist to act as a safety line when it came loose, allegedly causing him to fall three stories to the ground. The trial court denied plaintiff’s motion for partial summary judgment against defendant/third-party plaintiff Metro on his Labor Law § 240(1), finding plaintiff failed to demonstrate that Metro had the authority to supervise and control the snow removal. The court also denied Metro’s cross-motion to dismiss the §§ 240(1), 200 and common-law negligence claims.
The Second Department held plaintiff established prima facie that Metro was a statutory agent of the property owner on the project because Metro admitted it was hired by the property owners as the general contractor and undertook general contractor duties by coordinating and supervising the project, and hiring and paying subcontractors. Plaintiff also submitted evidence in admissible form that adequate safety devices were not provided to him in violation of the statute and that said violation was a proximate cause of his injuries.
As the court also rejected Metro’s contention that plaintiff’s conduct was the sole proximate, the Second Department held the trial court should have granted plaintiff’s motion for summary judgment on his Labor Law § 240(1), and denied Metro’s cross-motion to dismiss the § 240(1) and 241(6) claims.
PRACTICE POINT: The issue in this case was not if the fall was an appropriate labor law claim but rather whether or not he defendant contractor was an appropriate defendant. The authority to control the work which results in the injury to the plaintiff, whether such authority is exercised of not, is all that is necessary to establish a defendant as a statutory agent of the owner. Here the defendant had that authority as demonstrated by their status as the general contractor, the authority for hiring and firing of the sub-contractors, coordinating and supervising the project. To be a defendant it is the “authority to supervise and control significant aspects of the construction project, such as safety, at the time of the accident.”
Labor Law § 200 and Common-Law Negligence (VCP)
The Second Department reversed and found that the trial court should have the granted the motion of the general contractor, Metro, for summary judgment dismissing the Labor Law § 200 and common-law negligence claims against it. Plaintiff allegedly fell due to an alleged knotted rope around his waist that came loose. Where a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or general contractor cannot be had under Labor Law § 200 unless it is shown that the party to be charged had the authority to supervise or control the performance of the work.
The right to generally supervise the work, stop the contractor's work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient to impose liability under Labor Law § 200 or for common-law negligence. The general contractor, Metro, made a prima facie showing of 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, and plaintiff failed to raise a triable issue of fact.
Korostynskyy v 416 Kings Highway, LLC
February 10, 2016
Appellate Division, Second Department
Plaintiff allegedly was injured when a worker and construction materials fell from scaffolding on a neighboring construction site through a skylight in defendant’s roof and onto him. The trial court granted defendant’s motion for summary judgment dismissing the complaint alleging violations of Labor Law §§ 240(1), 241(6), 200 and common-law negligence claims.
The Second Department reversed the trial court’s dismissal of the Labor Law §§ 240(1) and 241(6) claims because defendant “did not demonstrate the absence of any triable issue of fact in connection with these cause of action … without regard to the sufficiency of the plaintiff’s opposition papers.”
PRACTICE POINT: The burden is always on the moving party to establish their entitlement to Summary Judgment and this cannot be established simply by pointing out that the plaintiff can’t make his case. This has been the downfall of many well intended motions, and a lesson I learned the hard way many years ago.
Labor Law § 200 and Common-Law Negligence (VCP)
The Second Department reversed, holding that the trial court erred in granting the motion of the property owner defendant Leonid Goldin for summary judgment dismissing the common-law negligence and Labor Law § 200 claims against him. Where, as alleged here, the plaintiff's accident arose from an allegedly dangerous premises condition, a property owner may be held liable in common-law negligence and under Labor Law § 200 when the owner has control over the work site and either created the dangerous condition causing an injury, or failed to remedy the dangerous or defective condition while having actual or constructive notice of it.
Here, the property owner failed to establish, prima facie, that he did not create or have actual or constructive notice of the allegedly dangerous condition. Based on defendant's own deposition testimony, unresolved questions regarding the scaffolding exist, including its location in relation to the defendant's building and whether the defendant personally observed construction materials, such as bricks, being stacked and left unsecured above the skylight.
February 24, 2016
Appellate Division, Second Department
Plaintiff allegedly was injured when, while using a table saw to cut wood, a piece of wood flew back and hit him in the eye. He alleged he was not provided adequate eye protection while using the saw. The trial court granted plaintiff’s motion for summary judgment on his Labor Law § 241(6) claim based on § 23-1.8(a) against defendants.
The Second Department reversed finding that plaintiff’s submissions failed to eliminate triable issues of fact as to whether adequate eye protection was provided to him on the date of the accident. Although plaintiff submitted his own deposition transcript, wherein he testified that “there was nothing” to protect his eyes, plaintiff also submitted the transcript of a witness who visited the property on the same day as the accident. Viewing the evidence in the light most favorable to the defendants, the witness’s deposition testimony revealed a factual dispute as to whether safety goggles were available for the plaintiff to use at the time of his accident. The court also found questions of fact as to the plaintiff’s comparative fault, if any.
Hernandez v Pappco Holding Co., Inc.
February 24, 2016
Appellate Division, Second Department
Plaintiff allegedly was injured while standing in a container resting on top of the forks of a forklift when the operator started to move the forklift, and plaintiff lost his balance and grabbed onto the forklift and trapped his hand.
The trial court denied defendant Sai Gas, Inc.’s motion for a directed verdict under CPLR § 4401 refused to set a aside a jury verdict finding it 75% at fault and defendant Doaba Gas 25% at fault, and determining plaintiff sustained damages in the amount of $200,000 for past pain and suffering and $675,000 for future pain and suffering.
Labor Law § 200 and Common-Law Negligence (VCP)
After the jury found defendant Sai Gas, Inc. had the authority to supervise or control plaintiff's work and that it was negligent in failing to make plaintiff's work reasonably safe, and apportioned liability to Sai in the amount of 75%, the Second Department denied Sai’s motion to set aside the verdict as contrary to the weight of the evidence. The Second Department held the trial court properly denied Sai's motion pursuant to CPLR § 4401 for judgment as a matter of law on the issue of liability on the Labor Law § 200 and common-law negligence claims against it.
To be awarded judgment as a matter of law pursuant to CPLR § 4401, a defendant must show that there is no rational process by which the jury could find for the plaintiff against the moving defendant. The trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and must not engage in a weighing of the evidence, nor may it direct a verdict where the facts are in dispute, or where different inferences may be drawn or the credibility of witnesses is in question. Here, viewing the evidence in the light most favorable to plaintiff, a rational process existed by which the jury could find that Sai exercised supervisory control over the plaintiff's work.
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)(2) requires that part of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed, and is sufficiently specific. |
McGrath v Lake Tree Vil. Assocs., 216 AD2d 877, 629 NYS2d 358 (4th Dept. 1995); Adams v Glass Fab, Inc., 212 AD2d 972, 624 NYS2d 705 (4th Dept 1995); McAndrew v Tennessee Gas Pipeline Co., 216 AD2d 876, 628 NYS2d 991 (4th Dept 1995); White v Sperry Supply and Warehouse Inc., 225 AD2d 130, 649 NYS2d 236 (3d Dept 1996); McCormack v Helmsley-Spear, Inc., 233 AD2d 203, 649 NYS2d 697 (1st Dept 1996); Baker v International Paper Co.,226 AD2d 1007, 641 NYS2d 206 (3d Dept 1996); Sharrow v Dick Corp., 233 AD2d 858, 649 NYS2d 281 (4th Dept 1996); 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); Boss v Integral Const. Corp., 249 AD2d 214, 672 NYS2d 92 (1st Dept 1998); Gavigan v Bunkoff General Contractors Inc., 247 AD2d 750, 669 NYS2d 69 (3d Dept 1998); Dacchille v Metropolitan Life Ins. Co., 262 AD2d 149, 692 NYS2d 47 (1st Dept 1999); Conway v Beth Israel Medical Center, 262 AD2d 345, 691 NYS2d 576 (2d Dept 1999); |
In McGrath, § 23-1.7(e)(2) applicable to specific work area as floors, platforms and defined passageways, and not common areas or an open yard in front of or between buildings. Adams held reg inapplicable where π allegedly tripped on wire mesh placed on floor area where concrete was to be poured b/c wire mesh integral part of the floor being constructed, and wire mesh not same as dirt, debris or “scattered tools and materials.” McAndrew held reg sufficiently specific to sustain a cause of action under § 241(6). White found issue of fact whether reg violated when π fell on roof & caused a bucket of hot tar behind him to spill and cause burns to his legs. McCormack held safety expert’s specific allegations that ∆ violated reg adequately supported claim where π allegedly slipped on mixed wet cement and mortar debris. Baker found issue of fact b/c ∆ failed to establish reg did not apply to π’s fall. Sharrow held reg inapplicable when π tripped over tubular extension attached to hoist during construction b/c object he tripped on was integral part of work. Cafarella held reg arguably applied where π slipped and fell while working in rear bed of dump trunk b/c reg requires working areas be kept free form accumulation of dirt and debris and from scattered tools and materials. Herman held ∆ not entitled to dismissal of claim under reg where π fell in basement b/c reg sufficiently specific. Boss held reg applied b/c piece of sheetrock π allegedly tripped constituted “debris” and “scattered materials” under reg. Gavigan held reg inapplicable to incidents occurring on out-of-doors dirt pathway. Dacchille held wire mesh storage area in which π injured while retrieving 200 pound reel of cable wire did not constitute “working area” under reg. Conway held reg inapplicable b/c storeroom π injured in not “working area” and A-frame ladder was not a “scattered tool.” |
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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
[email protected] [email protected]
Hurwitz & Fine, P.C.
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Phone: 716.849.8900
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