Labor Law Pointers - Volume V, No. 6

Labor Law Pointers


Volume V, No. 6

Wednesday, April 6, 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. 


So there I was, on vacation with my family, in the pool playing a quick game of “Marco Rubio” when, from a balcony above I hear those words that start my heart pumping; “Hey David, I have a situation”.  Fortunately for me the situation was friend and Labor Law Pointers readers who simply choose that as a greeting to yell from a 5th floor balcony, but rest assured that if he had a true situation, we would have been there to help.


Keeping true to my ever vigilant moto the picture below was taken just a short walk from where we were staying.  The painter was setting up his ladder by standing on the deck railing and moving the ladder.  All sorts of scenarios were running through my mind.  What if he fell onto someone below, what if he dropped that paint bucket he keeps carrying up and down the ladder on someone?  Most importantly, what if it all happened in New York with its unique and Draconian Labor Law.  I found myself explaining the labor law to my 10 year old son and his friend as we took the boat out to go parasailing.  They only pretended to enjoy the conversation I am sure.

 ladder painting


How about the picture below here, the worker standing on a step clearly marked as a step not to be stood upon.  If the plaintiff falls from this step would the defendant have one of the elements of sole proximate cause established simply due to the warning on the ladder?  I would think so.  Here is a quick refresher as to the elements of sole proximate cause.  The must be available an appropriate safety device which the plaintiff was instructed to use or knew he was expected to use which, for no good reason, the plaintiff failed to use or misused.  So, from the picture below my question is does the warning label establish that the plaintiff knew he was not to step on that rung and thus knowingly misused an appropriate safety device.  Please feel free to give me your opinion.


Feet on ladder


            Have a great month, see you all in May.  David 


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:


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.


Lois v Flintlock Constr. Servs., LLC

March 3, 2016

Appellate Division, First Department


While transporting a window, plaintiff allegedly slipped and/or tripped on a plastic tarp and broken concrete floor, causing him to fall.  The trial court denied defendants Bass and Flintlock’s motions to dismiss the Labor Law § 241(6) claim, rejecting their arguments that they were not the respective owner and general contractor.  The court also denied third-party defendant J&R’s motion to dismiss the contractual indemnification claim.  


Labor Law § 241(6) (JAE)

Plaintiff allegedly slipped and/or tripped in the course of attempting to comply with an instruction from his superior to transport a window to a different part of the eighth or ninth floor of a new building.

Plaintiff’s employer, third-party defendant, J & R, had assigned the two to complete this task to address a complaint that the window was leaking water.  J & R was required to perform this work pursuant to the warranty in its subcontract with Flintlock that J & R would correct any defects within 12 months after “substantial completion” of its work (part of which was installing exterior windows).  Thus, in affirming the finding of the motion court, the First Department held that there was at least an issue of fact as to whether Bass served in the role of an owner by contracting to have the work performed for its benefit, notwithstanding that Bass had previously transferred title to the eighth and ninth floors to new unit owners.

The First Department also held that defendants’ argument that no one within the chain of authority of their construction project created or had notice of the subject hazardous condition was unavailing.  The court deemed defendants’ argument that the debris covered by a plastic tarp, upon which plaintiff slipped and fell, must have been created by a contractor hired by the owner which had recently purchased the floor from Bass, speculative.  It found that assuming, for the sake of argument that defendants were not in contractual privity with whoever created the debris, they were still in contractual privity with J & R.  Since plaintiff’s J & R superior was present on the undivided floor for about five hours before the accident occurred, a jury could rationally conclude that someone within the chain of the construction project was negligent in not exercising reasonable care, or acting within a reasonable time, to prevent or remediate the hazard, and that plaintiff’s slipping, falling and subsequent injury proximately resulted from such negligence.

The First Department also agreed that defendants failed to meet their initial burden of establishing the inapplicability of §§ 23—1.7(e)(1) and (2).  Viewed in the light most favorable to plaintiff, his testimony that he fell while walking on a two- or three-foot space between two large piles of debris, and that he was required to pass through that area in order to access the window being repaired, established that the accident occurred in a “passageway” within the meaning of § 23—1.7(e)(1). 

And, contrary to defendants’ argument that § 23—1.7(e)(2) was inapplicable, the plastic tarp on which plaintiff slipped was not an integral part of the work being performed by the plaintiff at the time of the accident. Plaintiff’s testimony raised an inference that the tarp had been placed over the debris by other companies, which had apparently departed the area by the day of the accident.

Indemnity Issues in Labor Law (SEP)


J&R’s motion to dismiss contractual indemnity claims was denied where it was unable to demonstrate it was free from negligence.  The clause at issue only obligated J&R to provide indemnity where the loss was occasioned due to J&R’s negligence.  However, in the instant case, J&R was unable to establish that it did not have notice of the allegedly defective condition which resulted in plaintiff’s injuries.



Scoz v J&Y Elec. & Intercom Co. Inc.

March 15, 2016

Appellate Division, First Department


Plaintiff was an independent contractor who intentionally misused the wrong saw by jury-rigging it in a manner that he was knew was unsafe and which lacked guards or a spreader.  The trial court thus granted defendants’ motion to dismiss the Labor Law § 241(6) claim, and denied plaintiff’s cross-motion for partial summary judgment on that claim. 


Labor Law § 241(6) (JAE)

On appeal, the First Department affirmed finding that plaintiff’s conduct was the sole proximate cause of his accident.  The lack of guards or a spreader that may have been required by § 23-1.12(c) resulted from plaintiff’s misuse of the saw. Similarly, while 12 NYCRR 23-1.5(c) requires damaged equipment to be replaced or repaired, the use of a saw lacking a guard was the result of plaintiff’s intentional use of the wrong, jury-rigged tool, and the manner in which he used the saw, so that only the blade protruded from the plywood, would have rendered any guard ineffectual.



Ocana v Quasar Realty Partners L.P.

March 17 2016

Appellate Division, First Department


Plaintiff allegedly fell as the ladder he was standing on to perform his work wobbled, and both he and the ladder fell to the ground as he descended it to figure out why it wobbled.  The trial court granted plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim, and denied defendant’s motion to dismiss that claim.


Labor Law § 240(1) (DRA) 


The First Department affirmed partial summary judgment to plaintiff in light of his deposition testimony, and that he was not required to offer proof that the ladder was defective.  The court also rejected defendant’s argument that it is the alter ego of plaintiff’s employer and thus the Workers’ Comp. Law bars this action because although plaintiff’s employer was the general partner of defendant, they functioned as separate entities.  Defendant also failed to show that plaintiff’s conduct was the sole proximate cause of his accident and that it had provided plaintiff with adequate safety devices to prevent his fall.


PRACTICE POINT:  The alter ego argument is difficult to win where the two entities keep separate files and do not commingle funds but it is even tougher to win where there is a contract between the entities requiring one to indemnify the other.  As to the sole proximate cause defense there is no requirement that the plaintiff demonstrate that the safety device used, the ladder here, was defective.  The plaintiff need only demonstrate that the safety device did not protect the plaintiff from the gravity related risk. 


Kelmendi v 157 Hudson St., LLC

March 17, 2016

Appellate Division, First Department


Plaintiff was using a hand-held power saw to cut a metal bar on the roof of defendant’s building when the blade broke off and a piece of it struck him in the neck.  The trial court denied defendant’s motion for summary judgment on the Labor Law § 241(6) claim predicated upon a violation of Industrial Code regulation (12 NYCRR) § 23-1.12(c)(1).


Labor Law § 241(6) (JAE)

The two-foot-long electric saw, identified as a reciprocating saw, had a six-to-eight-inch long blade that was placed into the front end or head of the saw, which moved back and forth when in use.  There was no guard over the blade.

The First Department began by citing the relevant provision.  Plaintiff’s § 241(6) claim is predicated upon a violation of § 23-1.12(c)(1), which provides that “[e]very portable power-driven, hand-operated saw which is not provided with a saw table, except chain saws and circular brush saws, shall be equipped with a fixed guard above the base plate . . . and a movable self-adjusting guard below the base plate.” 

Defendant argued that while, on its face, the saw would seem to be covered by section 23-1.12, the photograph of the saw showed that no guard could be affixed above or below the base plate, because there is no base plate on that type of saw. Defendant further argued that plaintiff’s own deposition testimony established that a reciprocating saw does not require guarding, since there is no place where a guard could be located.

In agreeing with motion court, the First Department held that defendant failed to satisfy its burden of establishing that section 23-1.12(c) did not apply to this case. If found § 23-1.12(c)(1) sufficiently specific to support a Labor Law § 241(6) claim and applicable because plaintiff was in fact using a “power-driven, hand-operated saw” at the time of his accident.

The court declined to accept plaintiff’s deposition testimony that he had never seen a blade cover or guard on that type of saw as expert testimony to establish that the reciprocating saw plaintiff was given was not covered by the Industrial Code provision in question. 

The declined to permit defendant to avoid its duty to comply with section 23-1.12(c)(1) by asserting that the saw used by plaintiff had no base plate and could not accommodate a self-adjusting guard. Section 23-1.12(c)(1) obligated defendant to ensure that the “power-driven, hand-operated saw” provided to plaintiff to perform his job was secured with guard plates to cover the saw blade. Citing the finding of the motion court, it noted that to interpret the regulation in any other manner would be to ineffectualize the regulation because employers, owners and contractors would only use tools that would minimize their liability.


Hernandez v Seadyck Realty Co., LLC

March 24, 2016

Appellate Division, First Department


Plaintiff allegedly was injured when a grinder he was using to cut a hole in a wooden bathroom vanity kicked back on him, cutting his hand and wrist.  Plaintiff testified that upon receiving the grinder from his employer, it did not have a grinding disk or a guard attached, but instead had a saw blade with large teeth for cutting wood.  The trial court denied Seadyck’s motion for summary judgment dismissing the Labor Law § 241(6) claim predicated upon a violation of Industrial Code regulation (12 NYCRR) § 23-1.12(c).


Labor Law § 241(6) (JAE)

23-1.12(c) is applicable to “[e]very portable, power-driven, hand-operated saw.”  Defendant relied upon the recent decision issued by the First Department in Sovulj v. Procida Realty and Constr. Corp. of N.Y. to support its entitled to summary judgment.  This is a decision we reported on in our July 2015 issue:

Sovulj v Procida Realty
June 2, 2015
Appellate Division, First Department

Sovulj was using a grinder to cut a groove in a floor but he thought it was a good idea to place a saw tooth blade in the grinder and remove its safety guard to make the blade fit.  In what should be a surprise to no one, he was subsequently injured when the grinder kicked back on him and cut his hand and wrist.  The trial court granted defendants’ motion to dismiss the complaint alleging violations of Labor Law §§ 200 and 241(6) based on Industrial Code regulation (12 NYCRR) § 23-1.12(c).

Labor Law § 241(6) (JAE)

With regard to the §241(6) claim, the First Department affirmed and held that Sovulj’s claim predicated on a violation of 12 NYCRR § 23-1.12(c) should be dismissed as that section of the code does not pertain to the power tool he was using…

Acknowledging that the Sovulj decision was directly on point, the First Department begrudgingly held that it was constrained by recent precedent to find that it is irrelevant whether the modified grinder was functionally equivalent to a power-driven saw in determining whether it falls within 12 NYCRR, since the plain language of that section indicates that it is applicable to “[e]very portable, power-driven, hand-operated saw,” not grinders.

Lest you think the First Department was defeated by its own prior precedent, it went on to hold that while plaintiff’s allegation, made for the first time on appeal, that defendant violated 12 NYCRR 23-1.5(c)(3), was not properly before this Court, to the extent plaintiff failed to seek leave of the court to amend his bill of particulars to allege such a violation, he should be granted an opportunity to do so, as there is no prejudice to defendant. 

Smigielski v Teachers Ins. & Annuity Assn. of Am.

March 29, 2016

Appellate Division, First Department


Plaintiff was allegedly was injured when the platform of a scaffold on which he was standing to cut a hole in the ceiling, collapsed.  The trial court denied plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim.


Labor Law § 240(1) (DRA)


The First Department noted that although plaintiff may have been the sole witness to his accident that alone is insufficient to preclude him summary judgment.  However, the court held “where a plaintiff is the sole witness to an accident, an issue of fact may exist where he or she provides inconsistent accounts of the accident, his or her account of the accident is contradicted by other evidence or his or her credibility is otherwise called into question with regard to the accident.”


Here, the testimony of defendant Eclipse’s senior project manager that plaintiff’s employer did not do any ceiling work or use scaffolds and no scaffolds were present in the area where plaintiff was allegedly working at the time of his accident, raises a triable issue as to whether the accident occurred as plaintiff stated.  Thus, plaintiff was not entitled to summary judgment on this claim.


PRACTICE POINT:  Dan Kohane and I were reminiscing of the days when an unwitnessed accident was seemingly grounds enough for a question of fact where the court would let the jury decide if they believed the plaintiff or not.  Those days are long gone my friends.  What is not gone however is the question of fact established by varying versions of the accident form the plaintiff himself.  It is critical to check all accident reports, all medical reports all witnesses and co-workers who may have spoken to the plaintiff to find all accounts of the accident attributable to the plaintiff.   Here the plaintiff’s version of the accident, that he fell from a scaffold is completely contrary to the defendant witness version that there were no scaffold in the area where the plaintiff claims to have been injured in the fall.  That is sufficient to establish a question of fact.



Coretto v Extell W. 57th St., LLC

March 29, 2016

Appellate Division, First Department


Plaintiff moved to vacate the default order granting the electrical subcontractor Five Star summary judgment dismissing the Labor Law §§ 241(6), 200 and common-law negligence claims.  The trial court denied plaintiff’s motion and also denied defendants Extell and Bovis, Inc.’s cross-motion for summary judgment dismissing the 200 and common-law negligence claims against them.

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

The First Department held that plaintiffs proffered a reasonable excuse for their default and demonstrated a meritorious claim to vacate the order because the record supports plaintiffs’ claim that they never received Five Star’s motion papers and were unaware that the motion had been made.  With respect to the merits, the testimony of Bovis’ site safety manager and Five Star’s general foreman demonstrated that Five Star owned the PVC pipes that caused plaintiff’s fall and there were issues with Five Star’s storage of the pipes.  Therefore, the court found an issue of fact as to whether Five Star had the authority to supervise and control the injury-producing work so as to render it liable as a statutory agent under Labor Law §§ 241(6) and 200.



Hermitage Ins. Co. v Skyview & Son Constr. Corp.

March 31, 2016

Appellate Division, First Department


Diaz was injured while working for defendant 786 Iron Works on premises owned by the Mizro defendants.  Skyview, who acted as the general contractor for the project, was operated by the Mirzo’s son, and hired Iron Works as a framing subcontractor.  Diaz’s injury occurred outside the premises when a steel metal rolling gate fell on him and commenced a Labor Law action.


Insurance Coverage Issues in Labor Law (SEP)


Plaintiff in this case provided coverage to the Mizros and Skyview under two separate policies.  Defendant Aspen provided coverage to Iron Work.  The trial court granted plaintiff’s summary judgment motion declaring that it has no duty to defend or indemnify the Mizros and Skyview in the underlying action alleging violations of the Labor Law and common-law negligence.  The court also granted defendant Aspen’s cross-motion for summary judgment declaring that it has no duty to defend or indemnify the Mirzos and Skyview in that action. 




Balzano v BTM Dev. Partners, LLC

March 31, 2016

Appellate Division, First Department


Plaintiff’s employer, Certified, was working under its subcontract with Getronics, who contracted directly with the tenant/store owner Target for a build-out of a retail store.  The general contractor, Plaza, had a separate contract with Target.  Plaintiff fell from a scissor lift.  The trial court granted plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim against Plaza, and denied Plaza’s cross-motion to dismiss that claim.


The trial court also denied Plaza’s cross-motion to dismiss Target’s cross-claim for contractual indemnification, and granted Getronics’ motion to dismiss Plaza’s complaint against it.  The trial court further granted Target’s cross-motion for contractual indemnification against Getronics, and granted Getronics’ cross-motion on its contractual indemnification claim against Certified.


Labor Law § 240(1) (DRA)


Plaza asserted that it was not the general contractor for purposes of Labor Law liability for Target’s contract with Getronics and the subcontract with Certified because the work of Getronics and Certified was specifically carved out of the Plaza/Target contract and Plaza had no supervisory responsibility for Getronics and Certified.


The First Department focused only on “the existence and the extent of the control and supervision over the premises” by Plaza.  The court held the Plaza/Target contract as well as the testimony of Target’s representative suggested that Plaza exercised actual supervisory control over the entire premises.  Thus, the court, citing to Morachio v Open Door Family Med. Ctr., Inc., found an issue of fact as to whether Plaza was charged with the legal duty usually falling upon a general contractor, to use reasonable care to furnish a safe place to work for the employees of all contractors performing work on the job and denied plaintiff’s motion.


PRACTICE POINT:  This one is easy and often repeated, read the contracts to find authority to supervise or control and use the depositions to establish actual supervision or control.  They are important for various reasons and to establish differing levels of status as a defendant and you need to know them before you start.  Here, in spite of the fact that Plaza was not in the chain of contracts which lead from the owner to the plaintiff and his employer, the fact that they established that Plaza had actual control over the entire work site and all subs on the site made them an appropriate labor law defendant.  


Indemnity Issues in Labor Law (SEP)


The First Department held the trial court properly granted the contractual indemnification claims of Target and Getronics as they are encompassed by the language of the indemnity provisions, which do not violate General Obligations Law § 5-322.1.


Bautista v 165 W. End Ave. Assoc., L.P.

March 31, 2016

Appellate Division, First Department


Plaintiff allegedly was injured when a screw he was removing in the course of replacing window balances in an apartment unit “jumped” and struck him in the eye.  The trial court dismissed the Labor Law § 241(6) predicated upon Industrial Code regulation (12 NYCRR) § 23-1.4(b)(13).


Labor Law § 241(6) (JAE)


In affirming the trial court’s decision, the First Department held that plaintiff was correct that his work replacing window balances constitutes “maintenance” pursuant to Industrial Code (12 NYCRR) § 23-1.4(b)(13).  However, because plaintiff did not perform the work in the context of construction, demolition or excavation, his Labor Law § 241(6) claim was correctly dismissed.


Brown v 44 St. Dev., LLC

March 31, 2016

Appellate Division, First Department


Plaintiff allegedly was injured when, while carrying wood planks, he fell through an opening in a latticework rebar deck to a plywood form that was 12 to 18 inches below.  The trial court denied plaintiffs’ motion for partial summary judgment on his Labor Law § 240(1) claim. 


Labor Law § 240(1) (DRA)


The First Department, restated the well-established rule that “there is no bright-line minimum height differential that determines whether an elevation hazard exists”, and reversed the trial court’s decision in holding that the record establishes plaintiff’s fall was the result of exposure to an elevation related hazard. 


PRACTICE POINT:  We can once again thank the Court of Appeals for the Runner decision so that we now have labor law liability any place that the injury is caused by the application of gravity to the plaintiff of a falling object.  Here the plaintiff steps through a hole between pieces of rebar on a deck waiting to have concrete poured to the plywood form some 12 to 18 inches below the surface.  How is this not a normal hazard on a construction site?  Is there some way to prevent workers from slipping between the rebar pieces while walking across them before the concrete is poured?  This just seems to me to be an overexpansion of the statute. 


Saavedra v 64 Annfield Ct. Corp.

March 2, 2016

Appellate Division, Second Department


Despite the presence of an A-frame ladder in the immediate vicinity and metal scaffolding on the same level, plaintiff and his coworker took wooden planks and placed them on top of each other over metal rebar protruding from the concrete floor.  In a surprise to no one, while plaintiff and his coworker were standing on the makeshift structure, it collapsed and plaintiff fell 8 to 10 feet.  The trial court granted defendants’ motion to dismiss the Labor Law § 240(1) cause of action.


Labor Law § 240(1) (DRA)


The Second Department held that defendants each established prime facie entitlement to judgment as a matter of law by demonstrating that plaintiff was the sole proximate cause of his accident since he constructed and used an improperly-placed, unsecured makeshift structure rather than using the A-frame ladder that was available in the immediate vicinity of his work site.


In opposition, plaintiff submitted an affidavit which was translated from Spanish to English, but the court held the affidavit was not in admissible form under CPLR § 2101(b) because it failed to be accompanied by an affidavit by the translator stating his qualifications and that the translation is accurate.


PRACTICE POINT:  You all know how much I love pictures of make shift methods of working from a height, and I bet this one was a douse.  No surprise here, you have a perfectly good ladder and decide to build a structure similar to a pick-up-sticks game and then sue when you fall.  Outcome here is logical and fair.


Kupiec v Morgan Constr. Corp.

March 9, 2016

Appellate Division, Second Department


Plaintiff allegedly was injured when he stepped into a hole on the scaffold he was working on and fell through.  The trial court denied his motion for partial summary judgment on his Labor Law § 240(1) against the general contractor, Morgan Contracting Corp.


Labor Law § 240(1) (DRA)


The Second Department reversed the trial court’s decision as plaintiff’s proof was sufficient to demonstrate prima facie that he was engaged in a protected activity under the statute and that the failure to provide proper protection constituted a proximate cause of his injuries.  The court rejected Morgan’s contention that the deposition testimony of the superintendent, masonry foreman and a mason tender raised an issue of fact whether plaintiff’s conduct in allegedly removing a guardrail before his fall was the sole proximate cause of his injuries.


PRACTICE POINT:  Having testimony which will bring the plaintiff’s version of the accident into question is wonderful, but it still needs to be in admissible form.  The rules of evidence are unyielding.  It can be a difficult explanation to a client telling them that you understand that they heard that the plaintiff actually fell from a tree during lunch and not from the ladder, but without admissible prof it is just conjecture, hearsay and speculation, all of which are inadmissible.



Chilinski v LMJ Constr., Inc.

March 30, 2016

Appellate Division, Second Department


Plaintiff allegedly fell through a purposely designed opening in a platform floor that allegedly had been temporarily covered with a piece of plywood.  United owned the property and purchased a commercial oven from Dunbar.  United also retained Dunbar to install the oven and its appurtenances, including the platform.  C&C was hired by Dunbar to perform the work and fabricated the plywood cover and installed it over the opening. 


The trial court denied United’s motion for conditional summary judgment on its cross-claims and third-party claim for common-law indemnification against Dunbar and C&C.  The court also granted Dunbar and C&C’s motions to dismiss the third-party complaint against them.


Indemnity Issues in Labor Law (SEP)


United’s motion for summary judgment was denied where it failed to establish it did not have actual or constructive notice of the allegedly defective condition at the jobsite. 


On the contrary, Dunbar established that it did not erect/construct the plywood covering through which the plaintiff fell, nor did it supervise, direct or control plaintiff’s work.  It followed that it was entitled to dismissal of United’s cross-claims for common law indemnity.


With respect to C&C’s motion to dismiss United’s cross-claims, the Court noted that C&C failed to establish, as a matter of law, that it the construction of the plywood covering was not negligent.  Where C&C’s negligence remained at issue, United’s potential claims for common law indemnity survived.



Alati v Divin Blders., Inc.

March 18, 2016

Appellate Division, Fourth Department


Plaintiff allegedly was injured when he fell from a ladder while installing a light fixture in the foyer of a residence being built by defendant Divin Builders.  At the time of his accident, plaintiff was leaning over the top of his A-frame ladder to receive a screw/drill bit he dropped, which was being handed to him by another contractor, Friery. 


Plaintiff alleged Friery improperly stepped on the rungs on the back of the ladder while Friery contends the ladder “exploded” when plaintiff leaned over the top of the ladder, which ultimately broke into pieces causing plaintiff to fall to the ground.  The trial court granted plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim, and denied Divin’s cross-motion to dismiss the Labor Law §§ 240(1), 241(6), 200 and common-law negligence claims.


Labor Law § 240(1) (DRA)


The Fourth Department held plaintiff met his initial burden of establishing entitlement to judgment as a matter of law because “whatever the exact cause of the ladder’s collapse, the fact that the ladder failed and plaintiff fell to the ground demonstrates that it “was not so placed … as to give proper protection to him.”  The court also held Divin failed to raise an issue of fact whether Friery’s act of stepping on the back of plaintiff’s ladder just before it broke was of such an extraordinary nature or so attenuated from the statutory violation as to constitute a superseding cause sufficient to relieve it of liability.

PRACTICE POINT:  When the ladder actually breaks causing the plaintiff to fall it is going to be a 240(1) case, almost regardless of why it broke.  Recall that it was not the plaintiff who stepped on the back side of the ladder causing it to fail so even if that was the cause of the failure it could not be the fault of the plaintiff.  If it was the plaintiff leaning over the top of the ladder that is not misuse of the ladder and there will not be a valid sole proximate cause defense there. 


Labor Law § 241(6) (JAE)


With regard to the section 241(6) claim, the Fourth Department found that defendant should have been granted summary judgment dismissing this cause of action against it except insofar as it was based on the alleged violation of 12 NYCRR 23-1.21 (b) (1) and (3) (iv).  The court found those regulations sufficiently specific to support a violation of section 241 (6) and applicable to the facts of this case.  To the contrary, subsection (b) (4) of that regulation was deemed inapplicable to the facts of this case, and plaintiff abandoned his reliance on all other regulations recited in his bill of particulars.  The court modified the order accordingly.

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

The Fourth Department reversed the trial court and dismissed the common-law negligence and Labor Law § 200 causes of action against defendant. The record was clear that defendant exercised no supervisory control over the injury-producing work, and that the accident arose from plaintiff's methods and manner of work.


King v Malone Home Bldrs., Inc.

March 25, 2016

Appellate Division, Fourth Department


Plaintiff, a framer, allegedly was injured when he fell through an unguarded stairwell opening while performing framing work in constructing a single-family residence.  Plaintiff was employed by Hollands, who had a relationship with defendant whereby Hollands would periodically perform framing work for defendant at its residential construction projects.  On his C-3 form, plaintiff listed Hollands as his employer and the ALJ at the Workers’ Comp. Board ultimately determined plaintiff remained in the employ of Hollands at all relevant times and thus the special employee doctrine was inapplicable to defendant in the Workers’ Comp. case.


In moving to dismiss defendant’s affirmative defense of special employee in this personal injury action, plaintiff argued that defendant was collaterally estopped from asserting that defense based upon the Workers’ Comp. Board’s decision.  The trial court conditionally granted that part of plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim.  The court also denied defendant’s cross-motion to dismiss the Labor Law claim as well as the remainder of plaintiff’s motion seeking dismissal of defendants’ affirmative defense on the ground that there was an issue of fact whether plaintiff was the special employee of defendant at the time he fell. 


Labor Law § 240(1) (DRA)


With respect to defendant’s affirmative defense, the Fourth Department agreed with plaintiff and held that the trial court erred in determining that collateral estoppel did not apply to the Workers’ Comp. Board’s decision because, citing to Malmon v East 84th Apt. Corp., “a determination of employment status made by the Workers’ Comp. Board can have preclusive effect in a subsequent personal injury action.”  Here, the court noted that the issue whether defendant was plaintiff’s special employer, albeit for purposes of insurance carrier liability, was the issue directly addressed and resolved by the Board and defendant had a full and fair opportunity to contest that issue, appear as a party and fully participate in that evidentiary hearing.


With respect to defendant’s cross-appeal granting plaintiff’s motion on the § 240(1) claim, the court further held plaintiff established that he was injured while working at a building under construction, that he fell through an open, unfinished stairwell and that he was not provided with any safety devices to prevent or break his fall.  Thus, the Fourth Department held the trial court should have granted plaintiff’s motion in its entirety, and dismissed the affirmative defense.


PRACTICE POINT:  Always get the comp decision to determine if there is a special employee finding which can be used to claim the exclusive remedy defense provided by section 11 of the comp law.  If you have the opportunity, and this comes most often in the 1b arena, work with the comp carrier to assist in establishing the special/general classification in a way most beneficial to your client.  It is NEVER too early to get involved in a case, from the initial investigation, to interviews, to obtaining evidence to simply being there on the site and being familiar with exactly how the accident happened. 


We have been offering our 24 hour response team to investigate construction accidents, we have experts on call and can be anywhere in New York State in a few hours.  I have found physical evidence OSHA missed, obtained statements from co-employees that clear up how accidents happened and had air samples taken within hours of an explosion.  This can truly assist in the defense of what is generally a very high exposure case when 1b is involved.


Maddex v E.E. Austin & Son, Inc.

March 25, 2016

Appellate Division, Fourth Department


Plaintiff allegedly was injured when he and two coworkers attempted to unload a gang box at the work site from a “cube van.”  Plaintiff remained in the bed of the van and held a handle of the gang box, acting as a counterweight, while the coworkers lowered the 500-pound gang box toward the ground, approximately five feet below the bed of the van.  Before plaintiff could release the handle, he was propelled out of the van, over the gang box, and onto the pavement 10-15 feet from the van.


Following the close of plaintiff’s proof, he moved for a directed verdict under CPLR § 4401 that he was entitled to a determination as a matter of law because defendant violated Labor Law § 240(1) by failing to provide a proper safety device.  The trial court denied that motion, as well as plaintiff’s motion for the same relief under CPLR § 4404(a) after the jury returned a verdict in favor of defendant.


Labor Law § 240(1) (DRA)


Although the Fourth Department agreed with plaintiff that the accident falls within the purview of the statute, the court held the trial court properly determined, viewing the evidence in the light most favorable to defendant, that there was a rational basis by which the jury could find in favor of defendant.  The court noted that the evidence introduced by plaintiff at trial presented conflicting views as to the availability of a safety device.


The Fourth Department also held the trial court properly denied that part of plaintiff’s motion alleging the verdict is against the weight of the evidence because “a court should not substitute its judgment for that of the jury where, as here, the verdict is one that could have been rendered by reasonable people upon conflicting evidence, and great deference is accorded to the jury’s credibility determinations.” 


PRACTICE POINT:  The moral of the story is that courts do not like to disturb the finding of the jury.  Sometimes, no, usually, in a labor law case as a defendant we feel pretty good about getting the case past the Summary Judgment motion and to the jury.  When that happens the last thing we want is to have it taken away from us at the last minute by the court, and most courts feel the same way. 



Nicholas v Wal-Mart Stores, Inc.

March 25, 2016

Appellate Division, Fourth Department


In this case with no facts (if your still reading this), the trial court granted defendant Wal-Mart’s motion for summary judgment on the Labor Law § 200 and common-law negligence claims, and denied defendant MLB Contractors’ motion to dismiss the complaint and cross-claims against it.


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

Although there was no dispute that defendant MLB Contractors, Inc. did not create the dangerous condition, the Fourth Department concluded that it failed to meet its initial burden of establishing with respect to the common-law negligence cause of action and the Labor Law § 200 claim against it that it did not have control over the work site, or that it lacked actual or constructive notice of the allegedly dangerous condition.




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.


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

Canning v Barney’s New York, 289 AD2d 32, 734 NYS2d 116 (1st Dept 2001);

Harvey v Morse Diesel Intern, Inc., 299 AD2d 451, 750 NYS2d 117 (2d Dept 2002);

McDonagh v Victoria’s Secret, Inc., 9 AD3d 395, 781 NYS2d 525 (2d Dept 2004);

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

Singh v Young Manor, Inc., 23 AD3d 249, 804 NYS2d 65 (1st Dept 2005);

Giza v New York City School Const. Authority, 22 AD3d 800, 803 NYS2d 162 (2d Dept 2005);

Smith v Hines GS Properties, Inc., 29 AD3d 433, 815 NYS2d 82 (1st Dept 2006);

Kinirons v Teachers Ins. and Annuity Ass’n of America, 34 AD3d 237, 828 NYS2d 293 (1st Dept 2006);

O’Sullivan v IDI Const. Co., Inc., 28 AD3d 225, 813 NYS2d 373 (1st Dept 2006);

Ragone v Spring Scaffolding, Inc., 46 AD3d 652, 848 NYS2d 230 (2d Dept 2007);

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

Marinaccio v Arlington Cent. School Dist., 40 AD3d 714, 836 NYS2d 232 (2d Dept 2007);

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

Riley v J.A. Jones Contracting, Inc., 54 AD3d 744, 865 NYS2d 225 (2d Dept 2008);

Lane v Fratello Const. Co., 52 AD3d 575, 860 NYS2d 177 (2d Dept 2008);

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

Salinas held reg inapplicable b/c π testified he tripped over demolition debris he and his coworkers created which was integral part of their work. 

Canning held reg violated to π injured while carrying bundle of electrical conduit to worksite when his foot became ensnared in remnants of coil of tie wire.

Harvey held reg inapplicable where object on which π tripped on floor below ladder she was descending b/c it was integral part of the work she was performing.

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 work area under reg. 

Singh held reg did not apply where π stepped on a nail near a pile of debris in work area that had been permitted to accumulate for several days.

Giza held issue of fact existed whether warped piece of plywood on floor was integral part of π’s work or created a tripping hazard under reg.

Smith found issue of fact whether location of π’s fall was “working area” under reg.

Kinirons held reg did not apply to electrician’s tools where π tripped over b/c tools not “scattered” under reg as they were consistent with work being performed by electrician who had just placed them down to his right while mounting conduit.

O’Sullivan held reg did not apply where π tripped over permanently placed pipe b/c pipe integral part of floor under construction.

Ragone held reg did not furnish basis for Labor Law liability to π when a motorized hoist fell from a scaffold which he was wheeling along an elevated bridge.

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 b/c tiles were being installed in that room such that stack was constituent with work being done.

Marinaccio held reg inapplicable to π injured when he tripped on masonry block b/c it was integral part of work he was performing.

Tucker held reg inapplicable to rebar steel over which π tripped b/c it was integral part of the work being performed; not debris or scattered tools and/or materials.

Riley found issue of fact whether brick over which π allegedly tripped was integral to working being performed or “debris” under reg.

Lane held reg applied where π tripped & fell over brick in debris while assisting in installation of window at construction site.

Argona held that padeye welded to deck of wok barge was not a sharp projection to support claim under reg.


\Hurwitz & Fine, P.C. is a full-service law firm
providing legal services throughout the State of New York


Labor Law Pointers


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.
424 Main Street

Suite 1300 Liberty Building
Buffalo, New York 14202

Phone:  716.849.8900
Fax:   716.855.0874

In some jurisdictions, newsletters such as this may be considered:

Attorney Advertising.


© 2011-2014 Hurwitz & Fine, P.C., All rights reserved.


Newsletter Sign Up