Labor Law Pointers

 

Volume V, No. 7

Wednesday, May 4, 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.

 

Knowing how much I enjoy photographs of future labor law cases, I was sent the photograph below.  Notice not only is the future plaintiff leaning the A-frame ladder against the wall but also he is balancing the base of the one side of the ladder he feels should be in contact with something to make it safe is on a 2x4 nailed into the opposing wall.  I wonder if the reason he fell was the cell phone ringing in his pocket from his friendly neighborhood plaintiff’s attorney who saw this situation through the window and was calling to say he would be happy to represent him as soon as he was done falling.  Inquiring minds want to know.

 

ladder in hall picture

 

            We also try and use these photographs as a teaching aid.  Not simply the never, never do this type of teaching moment but to see what defenses we could muster when the inevitable happens.  Here, we would look to a sole proximate cause defense.  To establish that, we would need to establish the necessary elements.  First, we need an appropriate safety device.  Here, the ladder could be an appropriate safety device when used properly; that is, with the legs fully extended and in the locked position.  We would obtain an expert affidavit to that effect.  Second, the appropriate safety device needs to be available.  Here, the future plaintiff has it in his hands.  Third, the future plaintiff needs to have been instructed or to have been aware that he was to use the available and appropriate safety, here the ladder, in the fully open and locked position.  Look to the safety manual from his employer that he likely signed for, look to safety meetings he signed into and look to see if he is OSHA 10 or 30; in short, look everywhere and make sure you confirm it all during the depositions.  Lastly, the injury needs to be caused by the future plaintiff’s failure to use or to misuse, the appropriate and available safety device he was instructed or knew he was to use.  Here, the misuse of the safety device is apparent even to my untrained eye.  There you have it; the recipe for defending this labor law case.  Wish we had a “before” picture for them all; my job would be much easier.

 

            As always I like to remind all of our loyal readers that we are available for training on any topic labor law or risk transfer related to any level of complexity you think is most appropriate for your need.  We will come to you or, if easier for you, do the training online with a webinar.  We are free and fun, give us a call. 

 

            In addition we remain available on a constant basis to help with any “situations” that may arise.  We love those calls and situations, the more twisted and complex the more fun we have.

 

            I would be remiss if I did not point out that Dan Kohane’s Coverage Pointers is an excellent publication and if you are not a current subscriber I would strongly recommend he and his team of merry authors.  They address all things coverage related and branch out into many different arenas.  A direct link to his most recent edition is http://www.hurwitzfine.com/news/coverage-pointers-volume-xvii-no-22 or just email Dan at [email protected] and ask to be added to the distribution list.

 

            A big month from the courts, lots of cases so I will not take any more of your time here.  We try and keep this newsletter short and to the point, hope you enjoy it and take w=away something that will help you in your daily work.

 

            Enjoy your May everyone and we will see you all next month or sooner if you have a “situation”.

 

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:  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.

 

Gardner v Tishman Constr. Corp.

April 5, 2016

Appellate Division, First Department

 

Plaintiff allegedly fell through a hole that was covered with plastic.  Although no one from defendant Degmor admitting to sheeting and taping the hole in question before a plywood cover had been created, Degmor was the only contractor on site who performed that work before the cover was created. 

 

The trial court granted plaintiff summary judgment against Degmor on the negligence and Labor Law § 200 claim, and denied Degmor’s cross-motion to dismiss all claims against it. The trial court also granted defendants / general contractors Tishman and Madison’s motion for summary judgment dismissing the common-law negligence and Labor Law § 200 claims, and on their claims for common-law and contractual indemnity against third-party defendant EJ.  Third-party defendant Rolyn was further awarded summary judgment on its motion for contractual indemnity against Degmor, and EJ for common-law indemnification against Degmor.   

 

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

 

The First Department modified the trial court’s decision and reinstated plaintiffs’ claims of common-law negligence and Labor Law § 200 against Tishman and Madison, and denied plaintiffs’ motion for summary judgment against Degmor on Labor Law § 200 as it was not properly pled, but affirmed summary judgment on common-law negligence.

 

The court ruled that questions of fact exist rendering summary resolution of plaintiffs’ claims of common-law negligence and Labor Law § 200 against Tishman and Madison inappropriate. Here, liability may be found against Tishman as the entity that coordinated, supervised and controlled the covering of holes created by subcontractors, since it was a failure of that activity that led to a hole being covered with plastic prior to being rendered safe with a plywood cover. Where a general contractor is responsible for coordination and an accident occurs as a result of a lack of coordination, liability may be found.  Tishman and Madison also failed to make out their prima facie burden with affirmative evidence that they were not on notice of the condition.

 

The trial court also erred in granting plaintiffs summary judgment against Degmor as to Labor Law § 200, since no such claim was pled against Degmor. The court was correct, however, that summary judgment was appropriate as to plaintiffs’ common-law negligence claim against Degmor.  While no one from Degmor admitted to sheeting and taping the hole in question before a plywood cover had been created, Degmor was the only contractor on site that performed such work, since it was necessary to its work.  The court also correctly dismissed plaintiffs’ claims as against Prince, the carpentry contractor, since that entity had no affirmative duty to cover holes created by other subcontractors on site, and only did so at the direction of Tishman.

 

Indemnity Issues in Labor Law (SEP)

 

The question of fact against Tishman also operated to destroy Tishman’s motion for common law indemnification and contractual indemnification against Degmor.  Tishman, and its subcontractor Rolyn, argued that the “savings language” of the indemnity clause provided them with a conditional right of “indemnity.” 

 

Recall, that Degmor was found to have been negligent as part of the adjudication of plaintiff’s motion.  If Degnor was negligent, and Tishman was not, it follows that Tishman would be entitled to an award of indemnity.  Even if Tishman bore some percentage of negligence, one would think it is entitled to indemnity for that percentage of fault attributable to Degnor. 

 

Not the case, according to the Appellate Division.  If there is negligence attributable to Turner, its claim fails.  Where, as here, there was a finding of negligence against Rolyn, there is no claim for indemnity as a matter of law.

 

Peiper’s Point – At first I was perplexed by this decision.  Appellate courts have held for years that a party is entitled to “conditional” contractual indemnity where issues of negligence remain outstanding. Here, however, there is no need for indemnity arguments. 

 

Recall that Degmor, Rolyn and Turner were all main party defendants.  Because Rolyn and Degmor are already found to be negligent, their respective shares of responsibility will be determined at the time of the trial.  If Turner joins that lot, the negligence will be divvied up between all three.

 

Under such circumstances, all will be responsible for their own portion of responsibility only.  If that is the case, it follows that no one will have a viable indemnity claim.  If, upon apportionment, a defendant is only liable for their own percentage of negligence, and if a party cannot be indemnified for their own negligence, then it follows that any negligent party in this case can never possess a claim for indemnity.  That is because they will never be responsible for someone else’s negligence. 

 

Good thing to keep in mind the next time you face a Labor Law 200/Common Law Negligence Claim.  

 

 

Brown v George

April 7, 2016

Appellate Division, First Department

                                         

Plaintiff cable service technician was allegedly injured when he fell from a ladder while working at defendant George’s home.  The trial court denied George’s motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims.

 

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

 

The First Department reversed and granted summary judgment to the defendant homeowner George.  Defendant George established entitlement to judgment as a matter of law by submitting plaintiff's deposition testimony wherein he described his fall from the ladder he had leaned against defendant's house. This established that the accident was not the result of a defective condition on the premises, but rather was the result of the manner in which plaintiff performed his work.  Defendant cannot be held liable for plaintiff's injuries resulting from the means or methods of his work; since it is undisputed that defendant did not exercise supervisory control over the work.  Conclusory allegations that defendant created or had notice of a defective condition on the exterior of the house was insufficient to raise a triable issue of fact as plaintiff himself testified that he was unaware of any condition of the building that caused his fall.

 

Almodovar v Port Auth. of N.Y. & N.J.

April 21 2016

Appellate Division, First Department

 

Plaintiff allegedly fell while descending a ladder when his pant leg became caught on an unmarked rebar protruding from the concrete floor, causing him to step down from the third rung of the ladder, lose his balance and fall.  The trial court granted defendant’s motion to dismiss the Labor Law § 240(1) claim. 

 

Labor Law § 240(1) (DRA) 

 

The First Department affirmed the trial court’s decision to grant defendant summary judgment because there was no dispute that the ladder was free from defects “and the record shows that plaintiff’s fall was not attributable to the kind of extraordinary elevation related-risk that the statute was designed to prevent.  Rather, plaintiff’s injuries ‘were the result of the usual and ordinary dangers at a construction site.’”

 

PRACTICE POINT:   An extremely logical outcome; the statute is designed to protect workers from the extraordinary elevation risks of the job, not catching your pants on a piece of rebar.  Notice the court made the point of expressly pointing out that the ladder itself was not defective and that he did not fall from the ladder but stepped down and then fell on the ground as a result of stepping down from the third rung.  I think that had the plaintiff caught his pant leg and had the ladder tip and he then fell to the ground that here may well have been a different outcome.

 

Batista v Manhattanville Coll.

April 21, 2016

Appellate Division, First Department

 

Plaintiff was allegedly injured when one of the spruce planks he used for the flooring of a scaffold broke.  Although plaintiff was instructed by his employer to only use OSHA pine planks for the flooring, his supervisor occasionally “caught” him using spruce planks and specifically instructed him only to use pine planks and reprimanded plaintiff more than once for not following said instructions.

 

The trial court granted plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim, denied defendants Manhattanville and TJR’s cross-motion to dismiss that claim and denied their motion to dismiss the Labor Law § 241(6) predicated upon Industrial Code regulations (12 NYCRR) § 23-5.1(e), (g) and (h).

 

Labor Law § 240(1) (DRA) 

 

The First Department reversed the trial court’s decision to grant plaintiff summary judgment on his § 240(1) claim because issues of fact exist whether plaintiff disregarded instructions to use only pine planks for flooring on the scaffold he was constructing or otherwise knew that only pine planks were to be used for flooring and whether more pine planks were readily available to him either at the site, as his supervisor testified or at his employer’s yard as a coworker claimed.

 

PRACTICE POINT:  This goes right back to the elements of a sole proximate cause defense.  Here, the court is looking into the location of the appropriate safety device, the pine boards, and the instructions provided to the plaintiff.

 

Labor Law § 241(6) (JAE)

 

The Labor Law § 241(6) claim was dismissed except insofar as it was predicated upon alleged violations of Industrial Code § 23-5.1(e), (g), and (h).  The other Industrial Code provisions plaintiff cited in the bill of particulars and addressed on appeal were either insufficiently specific to sustain a Labor Law § 241(6) claim or inapplicable to the facts of this case.

 

313-315 W. 125th St. LLC v Arch Specialty Ins. Co.

April 26, 2016

Appellate Division, First Department

 

Plaintiff 313 West owned the building where plaintiff in the underlying Labor Law action was allegedly injured.  313 West’s managing agent, Solil, hired K&K as the general contractor under a contract that identified Solil as “the Owner.”  The General Conditions of that contract provided that K&K would indemnify and hold harmless “the Owner” and its agents to the fullest extent permitted by law against claims arising out of resulting from performance of the Work.  Arch issued a CGL policy to K&K, and denied 313’s tender for defense in the underlying action on the grounds that the underlying contract named Solil as the Owner and did not reference 313. 

 

The trial court granted Arch’s motion for summary judgment declaring that 313 and Plaza Circle (plaintiffs) have no coverage under its policy, that plaintiffs are precluded from reforming the contract to name 313 rather than Solil as “Owner” and plaintiffs are not third-party beneficiaries of that contract.  The court also granted Arch’s motion to dismiss K&K’s cross-motion for additional insured status under the Arch policy, and denied plaintiffs’ motion for contractual reformation and declaring that Arch must defend and indemnify them in the underlying action. 

 

 

Pareja v Davis

April 26, 2016

Appellate Division, First Department

 

Plaintiff testified that his employer / general contractor provided the ladder from which he fell and placed cloth under its feet.  Plaintiff received his work instructions from the general contractor’s foreman.  Defendant was living in England during the renovation work and his agent was not at the site when plaintiff undertook the work leading to his accident and who never interacted with any of the workers. The trial court denied defendant’s motion to dismiss the Labor Law §§ 240(1) and 241(6) claims.


Labor Law § 240(1) (DRA)

 

The First Department reversed because defendant established prima facie that he was entitled to the exemption under the Labor Law for “owners of one and two=family dwellings who contract for but do not direct or control the work.”  The trial court also held defendant’s agent lacked the authority to direct or control the means and methods of plaintiff’s work because the agency agreement expressly excludes from the agent’s duties “[d]etermining, approving or disapproving construction means and methods” and nothing else in the agreement contradicts this express exclusion.

 

PRACTICE POINT:  That is the ticket when having your house built, move to a different country until it is done so no one can claim you exercised any supervision, direction or control.  Those of you who have heard me speak about the homeowner’s exemption you know I advise everyone within earshot to leave the house while potentially qualifying work is being done.  I never thought to move to a different country but now I like the idea.  To have the protection of the homeowner exemption, the owner of the one or two-family home must not supervise, direct or control the work and the work must be residential in nature and not commercial.

 

Maddox v Tishman Constr. Corp.

April 28, 2016

Appellate Division, First Department

                                        

Plaintiff allegedly was injured as a result of double-stacking sand and cement bags at the worksite.  The trial court granted defendant’s motion for summary judgment dismissing the common-law negligence and Labor Law § 200 claims.

 

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

 

The First Department affirmed dismissal of the common-law negligence and Labor Law § 200 claims against defendants.  Contrary to plaintiff's contention, the double-stacking of the sand and cement bags at the work site was not an inherently dangerous condition of the work site but a result of the means and methods of the injury-producing work.   Defendants established prima facie that they exercised no supervision or control over plaintiff's work and therefore cannot be held liable for plaintiff's injuries under common-law negligence principles or Labor Law § 200 Plaintiff’s argument that defendants had the authority to stop the work and that they regularly inspected the job site was not sufficient to warrant imposing liability.

 

Osborn v 56 Leonard LLC

April 28, 2016

Appellate Division, First Department

                                        

Plaintiff allegedly was injured by an unguarded saw blade while working at a site located in New Jersey.  At the time of his accident, plaintiff was aware that the part he was fabricating was going to be installed at a construction site owned and operated by defendants and located in Manhattan.  The trial court granted defendant’s motion to dismiss the complaint.

 

Labor Law § 240(1) (DRA)

 

The First Department affirmed dismissal of the complaint because it well settled that the protection afforded to New York employees by Labor Law §§ 240(1) and 241(6) “has no application to an accident that occurs outside New York State, even where all parties are New York domicilaries.” Thus, as the accident occurred at a New Jersey site that defendants did not own or operate and because plaintiffs were New Jersey domicilaries, they had no valid New York Labor Law claims.

 

PRACTICE POINT:  An important rule to remember, while both the plaintiff and the defendant may be NY residents it is the location of the accident that determines if the NY Labor Law may be applied to the case.  As a side note, the plaintiff may have a negligence claim against the defendant but the labor law claim must be dismissed as that statute has application only to accidents which actually occur in NY.

 

Paulino v 580 8th  Ave. Realty Co., LLC

April 28, 2016

Appellate Division, First Department

                                        

Plaintiff allegedly was injured while dismantling a scaffold outside a building when a plank on which he was standing broke, causing him to fall.  The building was owned by defendant 580 who retained defendant Dry New York to perform the façade work, and retained plaintiff’s employer, nonparty S&E to construct the subject scaffold.

 

The trial court denied defendant Dry New York’s motion for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims, and granted plaintiffs’ motion for partial summary judgment on their Labor Law § 240(1) claim as against Dry New York.   

 

Labor Law § 240(1) (DRA)

 

The First Department reversed, concluding that Dry New York was not a general contractor on the project because it was not responsible for “the co-ordination and execution of all the work under all the contracts” on the project (Russin v Louis N. Picciano & Son, 54 NY2d 311, 316 [1981]).  Nor was Dry New York a statutory “agent” because although it had authority to supervise and control all work related to its façade restoration work, including the safety of the subject scaffold under its contract with 580, such authority was limited only to the extent that Dry New York used the scaffold to perform its contracted for façade work.

 

The court noted it was undisputed that the façade work was completed at the time of dismantling the scaffold, and that S&E was retained by 580 for construction of the scaffold, and S&E was directed to dismantle after Dry New York informed 580 that the scaffold was no longer needed.

 

PRACTICE POINT:  Timing is everything.  Once again we are reminded to read the contract carefully.  In the instant case it allowed the defendant to escape labor law liability as the work they were contracted to preform was completed, thus they had no control over the work the plaintiff was doing, thus they were not an agent and thus they were not an appropriate defendant.  Thus I shall move on to the next case.  

                                             

Sandals v Shemtov

April 6, 2016

Appellate Division, Second Department

                                        

Plaintiff allegedly was injured when a ladder he was standing on while painting a fire escape on premises owned by defendant slipped backwards, causing him to fall. The trial court denied plaintiff’s motion for summary judgment on his Labor Law §§ 240(1) and in effect granted defendant’s cross-motion to dismiss the complaint.

 

Labor Law § 240(1) (DRA)

 

The Second Department held defendant made a prima facie showing that she was entitled to the benefit of the homeowners’ exemption.  Deposition testimony revealed that the premises are divided into only two separate living spaces and function exclusively as a private home for the defendant’s family members.  Defendant also submitted an affidavit that she did not direct or control plaintiff’s work.

 

In opposition, the court rejected plaintiff’s argument that defendant was required to establish that the sole purpose of the construction work being performed at the time of plaintiff’s accident was undertaken to convert the premises into a one-family home.  Therefore, the trial court correctly granted dismissed the Labor Law §§ 240(1) and 241(6) claims against defendant.

 

PRACTICE POINT:  Recall the necessary element to establish the one or two family homeowner exemption for the labor law.  The defendant must be the owner of the one or two family home, must use the home for residential purposes and not commercial, must not supervise, direct or control the work of the plaintiff and the work being done must be for a residential or mixed purpose and not for a commercial purpose.

 

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

 

The Second Department also held defendant established, prima facie, that she did not have the authority to control or supervise the means and methods of the plaintiff's work, nor have actual or constructive notice of the dangerous conditions alleged, to support the imposition of liability under Labor Law § 200, and plaintiff failed to raise a triable issue of fact. 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. 

 

 

Alvarez v Dedvukaj Constr., Inc.

April 20, 2016

Appellate Division, Second Department

                                        

Plaintiff allegedly was employed by defendants as a laborer and commenced a Labor Law action.  Defendants failed to answer the complaint, and failed to oppose plaintiff’s subsequent motion for leave to enter a default judgment, despite having notice. The trial court entered a default judgment.  Five months later, defendants moved under CPLR § 5015 to vacate, and the court granted the motion.  One month later, the court, before plaintiff’s appeal had been perfected, sua sponte vacated its prior order and denied defendants’ motion and reinstated the default judgment.

 

Labor Law § 240(1) (DRA)

 

The Second Department affirmed as defendants failed to proffer any reasonable excuse for their default.  “The defendants’ ongoing and unexplained failure to take any action to oppose the entry of a default judgment was unreasonable under the circumstances and amounted to a pattern of willful default and neglect that should not be excused.”  Thus, the court declined to consider whether defendants proffered a potentially meritorious defense to the action.

 

PRACTICE POINT:  Just answer the damn complaint.  Failing that oppose the motion for default.  But if you find yourself in the position of needing to move to have a default vacated remember the necessary elements.  First hurdle is reasonable excuse for the default and second element if a meritorious defense to the action, in that order. 

 

Felix v Klee & Woolf, LLP

April 20, 2016

Appellate Division, Second Department

                                        

Plaintiff allegedly was injured when he fell from the grating of a seeding machine as it was being pulled by a tractor in the process of seeding a newly constructed cricket field.  Plaintiff received Workers’ Comp. for ten months following the accident.  While representing plaintiff on his Workers’ Comp. claim, defendant did not pursue any Labor Law or negligence claims on his behalf against alleged owners of Van Cortlandt Park, the City of New York and the Parks Department.  Such claims required a motion for leave to seek a late notice of claim.

 

Plaintiff thereafter commenced this legal malpractice action alleging that but for defendant’s malpractice, he would have prevailed in a personal injury action against the City and the Parks Department due to their negligence and Labor Law violations.  The trial court granted defendant’s motion for summary judgment dismissing the complaint.

 

Labor Law § 240(1) (DRA)

 

To state a claim for legal malpractice, a plaintiff must allege (1) the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and (2) the attorney’s breach proximately caused him / her actual damages.  “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the attorney’s negligence.”

 

Here, the Second Department held defendant established that plaintiff would not have been successful on his Labor Law § 240(1) because he would not have been able to show that his accident occurred in the context of “work performed on buildings or structures.”  Likewise, plaintiff did not have a valid Labor Law § 241(6) since he was involved with seeking a cricket field rather than in “construction, excavation or demolition work”.

 

PRACTICE POINT:  This is the “case within the case” as it is called in a malpractice action.  Here the important point for the 240 portion of the claim is that the plaintiff was seeding a sports field, a completely organic item, and thus not a building or structure.  Recall that a structure is something made up of component parts; a field does not qualify, nor does a tree for that matter.

 

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

 

The Second Department held defendant established that neither the City nor the Parks Department, as the owners, could be held liable for plaintiff’s Labor Law § 200 and negligence claims because they did not supervise or control the performance of plaintiff’s work.

 

Jardin v A Very Special Place, Inc.

April 20, 2016

Appellate Division, Second Department

                                        

Plaintiff allegedly fell from an unsecured ladder that shifted as he was trying to reach the roof of the building.  Defendant VSP owned the property and defendant Kang Suk was the general contractor.  Third-party defendant Trinity subcontracted some of its work to plaintiff’s employer, CRM.  VSP and Kang Suk executed a contract which provided “to the fullest extent permitted by law … [Kang Suk] shall indemnify and hold harmless [VSP] … from and against claims, damages, losses and expenses … arising out of resulting from performance of the Work, … but only to the extent caused by the negligent acts or omissions of [Kang Suk], a Subcontractor, any directly or indirectly employed by them or anyone for whose acts they may be liable.”  Kang Suk and Trinity executed a written agreement whereby Trinity “agreed to defend, indemnify, and hold harmless” Kang Suk and VSP “from and against any and all claims … arising in who or in part and in any manner from acts, omissions, breach of default of [Trinity], in connection with the performance of any work by [Trinity], its officers, directors, agents, employees and subcontractors.”

 

The trial court denied plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim, and denied VSP’s cross-motion for conditional summary judgment on its contractual indemnity claims against Kang Suk and Trinity.  The court also denied VSP’s motion for leave to reargue and renew.

 

Labor Law § 240(1) (DRA) 

 

The Second Department affirmed denial of plaintiff’s motion.  Plaintiff established a prima facie entitlement to judgment as a matter of law that the unsecured ladder he was standing on shifted, causing him to fall.  In opposition, however, defendants Kang Suk and VSP raised triable issues as to whether plaintiff was authorized to be at the renovation site at the time of his accident and, whether anyone had instructed plaintiff to access the roof of the building.

 

PRACTICE POINT:  The most interesting portion of this decision for me has to do with an order of preclusion on one of the defendants.  While one defendant (CRM) had been precluded from offering any testimony or evidence in the matter the other defendants (Kang Suk and VSP) were not precluded from using an affidavit of the president of CRM to oppose the plaintiff’s Summary Judgment motion for Summary Judgment.  Recall that the order only says what it says, and does not preclude other parties from using the testimony from the precluded party.

 

Indemnity Issues in Labor Law (SEP)

313 West is the owner of the building where the plaintiff in the underlying Labor Law action was injured while working on a construction project. Solil, 313 West's managing agent, hired K & K as the general contractor for the project pursuant to a written form agreement that referred to Solil as "the Owner."

 

The General Conditions of that agreement provided, inter alia, that K & K would indemnify and hold harmless "the Owner" and its agents to the fullest extent permitted by law against claims arising out of or resulting from performance of the work.

Arch issued a commercial general liability policy of insurance to K & K. When plaintiffs tendered their defense in the underlying action, Arch denied the tender on the ground that the underlying construction contract named Solil as the Owner and did not reference 313 West. As a result, plaintiffs commenced this declaratory judgment action seeking coverage. To the extent the agreement between Solil and K & K incorrectly identified Solil as the Owner, plaintiffs sought reformation of the contract.

A claim for reformation of a written agreement must be grounded upon either mutual mistake or fraudulently induced unilateral mistake. To succeed, the party asserting mutual mistake must establish by "clear, positive and convincing evidence" that the agreement does not accurately express the parties' intentions or previous oral agreement. Parol evidence may be used and reformation is an appropriate remedy where the wrong party was named in the contract.

313 West clearly and convincingly established that K & K intended to indemnify the true owner, 313 West, and that, as a result of mutual mistake, the agreement misidentified Solil, the managing agent, rather than 313 West itself, as the "Owner" of the property where the work was to be performed.

The agreement was signed by Solil's director of commercial management, Joseph Grabowski, "As Agent." Grabowski testified that he "negotiated the price and . . . signed the contract for the owner," by which he meant 313 West. Other witnesses concurred. Numerous provisions in the agreement were structured around the true property owner, 313 West, as the real party in interest, for whose benefit the work was performed.

Accordingly, the construction contract's provision requiring K & K to procure insurance covering "the Owner" as an additional insured referred to 313 West, rather than Solil, and the amendment of the insurance policy "to include as an additional insured those persons or organizations who are required under a written contract with [K & K] to be named as an additional insured" effectively names plaintiffs as additional insureds.

 

Kosinski v Brendan Moran Custom Carpentry, Inc.

April 20, 2016

Appellate Division, Second Department

                                        

Defendant DeGregorio owned property with a house in which she lived, and a detached building containing a garage and apartment occupied by a caretaker for the property.  DeGregorio hired defendant BMMCC to perform renovations on the property, and BMCC subcontracted some of the work with Concordia.  Concordia retained plaintiff, a self-employed carpenter, to perform carpentry work.  Plaintiff fell from a ladder.

 

The trial court granted plaintiff’s motion for summary judgment on his Labor Law § 240(1), and denied defendants’ cross-motion to dismiss the Labor Law §§ 240(1) and 241(6) claims.  The court also dismiss the Labor Law § 200 and common-law negligence claims against Concordia.

 

Labor Law § 240(1) (DRA) 

 

The Second Department held that plaintiff’s motion should have been denied as defendants raised triable issues of fact as to whether plaintiff misused the subject ladder, and if so, whether that misuse was the sole proximate cause of the accident.  The court also held defendant DeGregorio’s motion dismissing the Labor Law §§ 240(1) and 241(6) claims should have been granted because she established that she did not direct or control the work being performed, and that the work directly related to the residential use of her home.

 

PRACTICE POINT:  The decision does not provide us with much in the way of facts here, but simply states that the question of fact is whether the plaintiff misused the ladder.  If the court got as far as that portion of the sole proximate cause defense then we can assume that there was an available and appropriate safety device which the plaintiff was instructed to use or was aware he was expected to use.  In addition as to the property owner, like the property owner above in the Sandals case, it provided evidence as was their burden which established that they did not supervise, direct or control the work of the plaintiff and that the work being done was residential in nature.

 

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

 

The Second Department held that the trial court properly denied defendant Concordia’s motion for summary judgment on Labor Law § 200.  Concordia failed to establish, prima facie, that it did not have the authority to exercise supervision and control over the subject work.

 

Vitale v Astoria Energy II, LLC

April 20, 2016

Appellate Division, Second Department

                                        

Plaintiff was a surveyor, verifying the accuracy of the location of 200 anchor bolts that needed to be tightened before the concrete foundation was poured.  He allegedly was injured when, while walking across the top of rebar grid which was at least 100 feet by 50 feet, and 5 feet high, he lost his balance and his left leg fell through one of the square openings of the rebar grid, up to his groin.  Defendant Astoria was the property owner, and SNC-Lavalin was the construction manager for the project.

 

The trial court denied plaintiff’s motion for summary judgment on his claims for Labor Law §§ 240(1) and 241(6) predicated on Industrial Code regulation 23-1.7(b), and granted defendant’s cross-motion to dismiss those claims.

 

Labor Law § 240(1) (DRA) 

 

The Second Department held that defendant established prima facie that the openings of the grid, which were not of a dimension that would have permitted the plaintiff’s body to completely fall through and land on the floor below, did not present an elevation-related hazard to which the statutory protections are designed to apply.

 

PRACTICE POINT:  The decision makes sense, 240(1) is designed to prevent falls from height and proscribes specific safety devices to prevent such a fall.  While the list of safety devices if not exclusive, it is illustrative as to the type of risk the statute is designed to protect against and clearly stepping into a hole which a person can’t fall through is not at all that type of risk.  None of the safety devices listed in the statute could prevent they type of accident, which in truth cannot be described as a fall.

 

 

Labor Law § 241(6) (JAE)

 

The Second Department also affirmed the trial court’s dismissal of so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated on § 23-1.7(b).  The court repeatedly has held that 1.7, which concerns “hazardous openings,” does not apply to openings that are too small for a worker to completely fall through.  Here, defendants established the openings of the grid were not of a dimension that would have permitted the plaintiff's body to completely fall through.  Accordingly, they established their prima facie entitlement to judgment as a matter of law, and plaintiffs failed to raise a triable issue of fact.

 

                                       Kolari v Whitestone Constr. Corp.

April 27, 2016

Appellate Division, Second Department

                                        

Plaintiff allegedly was injured when his foot went into an uncovered drain in the roof of a building about 12 inches wide and 6 inched deep, causing him to fall.  According to defendant’s project manager and field supervisor, the uncovered drain should have been filled with material and if so, the material would have prevented plaintiff’s foot to go into the drain.  The trial court denied defendant general contractor Whitestone’s motion to dismiss the Labor Law § 200 and common-law negligence claims.

 

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

 

The Second Department affirmed the denial of defendant Whitestone’s motion, finding Whitestone failed to demonstrate its prima facie entitlement to judgment as a matter of law dismissing the common-law negligence Labor Law § 200 claims.  Defendant failed to establish, prima facie, that it did not create the alleged hazardous condition or have actual or constructive notice of it.  Defendant also failed to establish that it cannot be held liable for plaintiff's injuries because the condition of the exposed drain constituted an ordinary and obvious hazard of his employment.  

 

St. John v Westwood-Squibb Pharms., Inc.

April 29, 2016

Appellate Division, Fourth Department

                                        

Plaintiff allegedly tripped or slipped on debris in a parking lot while she was attempting to attach lighting equipment to the trailer hitch of a pickup truck.  The lighting equipment was being prepared for use in a project to rehabilitate several bridges that were located on a public roadway.  The trial court denied defendant’s summary judgment motion to dismiss the Labor Law § 241(6) claim premised upon § 23-1.7(d), (e)(1) and (2).  The trial court also denied defendants’ motion to dismiss the Labor Law § 200 and common-law negligence claims.

 

Labor Law § 241(6) (JAE)

Defendant contended plaintiff was not entitled to the protections of Labor Law § 241(6) because the injury did not occur on the construction site. The Fourth Department rejected that contention stating that the protections of Labor Law § 241(6) extend to areas where materials or equipment are being readied for use at a construction site, and in this case the record established the lighting equipment was being prepared in the staging area for imminent use in ongoing construction.

Contrary to defendant’s further contention, the court also found that was a property owner for the purposes of Labor Law § 241(6).  An out-of-possession property owner who does not contract for the injury-producing work may be liable under the Labor Law when there is some nexus between the owner and the worker, whether by a lease agreement or grant of an easement, or other property interest.  The court concluded defendant failed to establish the lease between its parent corporation and plaintiff's employer did not create a sufficient nexus between defendant and plaintiff.

Next, the court rejected defendant’s contention that collateral estoppel bared plaintiff’s Labor Law § 241(6) cause of action insofar as it is based upon alleged violations of 1.7(d), and (e)(1) and (2).  In a prior action in the Court of Claims, plaintiff alleged the State of New York (State) was liable for her injuries under Labor Law § 241(6) based upon violations of those same regulations. In granting the State’s motion for summary judgment dismissing the claim, the Court of Claims concluded, inter alia, that those regulations were not applicable to plaintiff's injury, and we affirmed the order on the alternative ground that the State was not an “owner” for the purposes of liability under § 241(6).  Thus, collateral estoppel did not prevent plaintiff from alleging in this case that her injury was caused by violations of those regulations because there was an alternative basis for a trial-level decision, and this court affirmed the decision without addressing that ruling concerning the applicability of the regulations.

Nevertheless, the court did agree with defendant that 1.7(d), and (e)(1) and (2) were not applicable to the facts of this case, and therefore modified the order.  The injury-producing work took place in a parking lot, and thus did not take place on a “floor, passageway, walkway, scaffold, platform or other elevated work surface” required to be kept free of slipping hazards within the meaning of 1.7(d).  The work also did not take place in a “passageway” required to be kept free of tripping and other hazards within the meaning of 1.7(e)(1), nor did it take place on a “floor[], platform[] [or] similar area[] where persons work or pass” within the meaning of 1.7(e)(2).

Lastly, however, the court found that 2.1 (b) [“Disposal of debris.   Debris shall be handled and disposed of by methods that will not endanger any person employed in the area of such disposal or any person lawfully frequenting such area”] was sufficiently specific to support a Labor Law § 241(6) claim, and the trial court properly determined defendant failed to establish the regulation was not applicable to the facts of this case.  Thus, the court properly denied that part of defendant’s motion for summary judgment dismissing the Labor Law § 241(6) cause of action with respect to that regulation.

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

 

The Fourth Department affirmed denial of defendant’s motion to dismiss the Labor Law § 200 and common-law negligence claims. Where, as here, a plaintiff's injuries stem not from the manner in which the work was being performed, but, rather, from a dangerous condition on the premises, the owner may be liable in common-law negligence and Labor Law § 200 if it has control over the work site and actual or constructive notice of the dangerous condition. 

 

Defendant failed to establish that it did not have constructive notice as it failed to establish as a matter of law that the condition was not visible and apparent or that it had not existed for a sufficient length of time before the accident to permit defendant from discovering and remedying it.  Although defendant contends it was not liable because it was an out-of-possession landlord and did not have control over the premises, the court concluded defendant failed to establish that it did not retain sufficient control to be liable for a dangerous condition on the premises.

 

 

 

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.

 

Morris v City of New York, 87 AD3d 918, 929 NYS2d 585 (1st Dept 2011);

 

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

 

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

 

Cappabianca v Skanska USA Bldg, Inc., 99 AD3d 139, 950 NYS2d 35 (1st Dept 2012);

 

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

 

White v Village of Port Chester, 92 AD3d 872, 940 NYS2d 94 (2d Dept 2012);

 

Mendez v Jackson Dev. Group, Ltd., 99 AD3d 677, 951 NYS2f 736 (2d Dept 2012);

 

Sanders v St. Vincent Hosp., 95 AD3d 1195, 945 NYS2d 343 (2d Dept 2012);

 

Capuano v Tishman Const. Corp., 98 AD3d 848, 950 NYS2d 517 (1st Dept 2012);

 

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

 

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

 

Landahl v City of Buffalo, 103 AD3d 1129, 959 NYS2d 306 (4th Dept 2013);

 

Harasim v Elgin Const. of New York, Inc., 106 AD3d 642, 966 NYS2d 387 (1st Dept 2013);

 

Rodriguez v DRLD Development, Corp., 109 AD3d 409, 970 NYS2d 213 (1st Dept 2013);

 

Smith v Nestle Purina Petcare Co., 105 AD3d 1384, 966 NYS2d 292 (4th Dept 2013);

 

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

 

Flynn v 835 6th Ave. Master L.P., 107 AD3d 614, 969 NYS2d 13 (1st Dept 2013);

 

Rodriguez v Dormitory Authority of  State, 104 AD3d 529, 962 NYS2d 102 (1st Dept 2013);

 

Lopez v New York City Dept. of Env. Protection, 123 AD3d 982, 999 NYS2d 848 (2d Dept 2014);

 

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);

 

Baumann v Town of Islip, 120 AD3d 603, 992 NYS2d 276 (2d Dept 2014);

 

Scribner v State, 130 AD3d 1207, 13 NYS3d 637 (3d Dept 2015).

 

 

 

 

 

 

Morris held reg inapplicable where π fell from temporary step at bottom of concrete stairway allegedly due to snow & debris in the hallways & passageways where π had to traverse.

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.

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.

In Cappabianca, reg did not apply to π injured when his foot became stuck, causing him to fall off pallet on which he was standing while cutting bricks with electric saw b/c π did not allege that he tripped on accumulation of dirt or debris.

Rodriguez held reg did not apply where ∆ showed that the alleged defect was not a hazard contemplated under the reg for tripping and other hazards in the work areas. 

White found issues of fact whether the brick under the plastic covering a newly-poured concrete that π tripped and fell was integral to work being performed or was debris.

Mendez held reg did not apply where π did not allege that he tripped over any tripping hazard under the reg.

Sanders found triable issues of fact whether object, if any, over which worker tripped and fell was integral to the work being performed.

Capuano held that contractor’s failure to keep work area free of scattered debris & failure to provide sufficient lighting constituted a violation of reg.

Purcell held even if area where

π tripped on wet plywood could be construed as floor, platform or similar area, reg still inapplicable b/c wet plywood not “debris” or any other obstructions under reg.

Thomas held reg did not apply b/c protective covering over which π tripped not “accumulated debris or scattered materials” where covering purposefully installed on floor as integral part of renovation project.

Landhal held reg inapplicable where π injured when his foot slid from a worn marble step on stairway at city hall.

Harasim held reg did not apply when π slipped on stairway of building.

Rodriguez found issue of fact whether metal cable that π tripped on before sheetrock fell on her was inherent part of construction of building or debris within meaning of reg.

Smith found issue of fact as to whether hose on which π tripped and fell while vacuuming grain dust in silo was a scattered tool that was a tripping hazard.

Cumberland held pipe and pipe fittings over which π fell were not “debris” under reg.

Flynn held reg inapplicable where π tripped over rebar b/c rebar was in the process of being installed and thus integral to ongoing work.

Rodriguez found issue of fact whether reg violated since π testified scaffold clamps were scattered across working area, causing him to trip and fall.

Lopez held reg did not apply where the object that caused π’s injury was an integral part of the work being performed, but defendants liable here b/c uncapped rebar onto which π fell not integral part of π’s work and his own negligence did not contribute to fall.

Best held ∆s failed to prove that π’s alleged trip over electrical cord did not occur in working areas 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 be considered a tripped hazard. 

Baumann held ∆ failed to show that area where π injured as he tried to clear path to drive his excavator into position to complete his task was not a “working area” under reg.

Scribner held reg did not apply where π tripped over roofing tile pieces & fell from roof ledge onto scaffolding b/c pieces he tripped on were materials involved in the actual task he was performing.

 

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

 

Labor Law Pointers

 

Editor
David R. Adams


Associate Editor
V. Christopher Potenza


Associate Editor
Steven E. Peiper


Associate Editor
Jennifer A. Ehman

 

Associate Editor
Marc A. Schulz

 

Labor Law Team

 

            David R. Adams, Team Leader                                              Steven E. Peiper

            [email protected]                                                             [email protected]

 

            Dan D. Kohane                                                                       Jennifer A. Ehman

            [email protected]                                                            [email protected]

 

            Michael F. Perley                                                                   Marc A. Schulz

            [email protected]                                                           [email protected]

           

            V. Christopher Potenza                                                         

            [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
www.hurwitzfine.com

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

Attorney Advertising.

 

© 2011-2016 Hurwitz & Fine, P.C., All rights reserved