Labor Law Pointers

 

Volume VI, No. 2

Wednesday, December 7, 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.  Give us a call and we will help you to resolve yours.

 

Well the courts are back on top of their game this month, and we have a bumper crop of labor law decisions from all but the Third Department and one from the Court of Appeals for a total of 16 cases we have summarized and analyzed for your reading pleasure.

 

I would take a minute to remember Pearl Harbor today, 75 years ago our Country was attacked and over 2,400 killed.  I specifically recall writing the second edition of what has become many editions of Labor Law Pointers and discussing the 70th anniversary of the attack, and I have the same thought today, thank a veteran.

 

A word of warning to all who practice in Westchester County, by notice issued November 22, 2016 and effective January 3, 2017 the time to file a Summary Judgment motion, or even a cross motion for Summary Judgment, has been reduced for all courts in the county to 45 days after the note of issue.  Please read select portions of the notice from the court below, they mean business.  The link will take you to the full rule which I recommend that anyone practicing in Westchester Country read in its entirety.

 

D. Note of Issue and Motions for Summary Judgment in E-Filed Actions…The CP Justice shall establish the deadline for any post-note summary judgment motions in the Trial Readiness Order which shall provide that any motion for summary judgment by any party must be made within forty-five (45) days following the filing of the Note of Issue… The return date for a motion for summary judgment once made may not be extended more than three (3) times and such return date may not be extended for more than a total of sixty (60) days. … Counsel are cautioned that untimely motions cannot be made timely by denominating such as cross-motions. The failure of a party to serve and file a motion or cross-motion within the 45-day time period pursuant to this protocol and the Trial Readiness Order shall result in the denial of the untimely motion or cross-motion. …In no event shall an adjournment be granted after the time to move or submit opposition or reply papers has expired.

https://www.nycourts.gov/courts/9jd/diffCaseMgmt/newDCM_protocoljan3_2017.pdf

Once again we have photos to assist in our understanding of the labor law, and these photos taken immediately before the subject of the photo was redesigned as a plaintiff will assist us in specific point of the labor law. 

 

In the photo below if, when the plaintiff finishes cutting through the limb and if somehow it is the limb which falls to the ground instead of the remainder of the tree as he appears to believe will occur based on his positioning of the ladder, is that a labor law case.  He is working at a height, and we can assume for the purposed of this exercise we can assume he employed for this task.  The answer is below.

 

 

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The answer is no, it is not a labor law case as the tree, an organic entity, is not a building or structure as required by the statue in 240(1) and thus it is not labor law 240(1) case and would be dismissed.

 

            Next we have several intrepid workers delivering a refrigerator to the second floor apartment.  When gravity overcomes stupidity, will it be a labor law case?

 

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            Once the dust clears and the plaintiff calls his attorney he will hear those words he dreaded, “sorry, but you were not engaged in a protected activity.”  While the plaintiff may have been being paid to deliver the refrigerator, and he clearly was injured by the force of gravity, either from his own fall of from the refrigerator falling on him, but he is not involved in a protected activity at the time of the injury.  Delivering appliances did not make the list.

 

Here we have a scaffold that needed to be set up on a sloped surface and the only way to do it was to put the wheels of the scaffold on a couple of chairs and hope for the best.  Labor law case where the plaintiff does it himself?

 

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The question here is going to turn on if there is a valid sole proximate cause defense available here.  Remember the necessary elements of a sole proximate cause defense, there must be an available, and appropriate, safety device which the plaintiff was instructed to use or knew he was expected to use, which the plaintiff for no good reason failed to use or misused.   Thus there must have been an available and appropriate way for the plaintiff to have set up the scaffold which he knew he was to use and that he had to have, for no good reason, failed to use if.  If that did not happen, then the plaintiff has himself a valid labor law case.

 

This last picture does not really involve the labor law as far as I can tell, but it does demonstrate the ingenuity of the America worker to have a nice steak wherever and whenever hunger may strike.

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Please remember to call or email or text with any questions labor law or risk transfer related questions, we are always here to help.  We also have a broad array of training seminars available on the labor law and many other subjects for any and all who think that their team would benefit.  We can do them live or via webinar, whatever works best for your situation. 

                          

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We encourage you to share our newsletter with any and all who may be interested and if anyone out the in cyberspace would like to be added to our distribution list just let me know at [email protected] and you will be added.

 

Without further ado here is our December edition of Labor Law pointers.  Happy holidays, hope you are able to enjoy them with family and friends with the computer turned off for at least a few hours.  David 

 

 

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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.

 

Nazario v 222 Broadway, LLC

November 21, 2016

Court of Appeals

 

Plaintiff was performing electrical work, reaching up while standing on a ladder when he received an electrical shock from an exposed wire.  He fell to the floor holding the ladder, which remained in an open and locked position when it landed.  The trial court denied plaintiff’s motion for summary judgment on his Labor Law §§ 240(1) and 241(6) claims, and upon searching the record, dismissed those claims.

 

The First Department reversed as to the Labor Law § 240(1) claim in holding that although the ladder itself may not have been defective or failed to comply with safety regulations, plaintiff was injured when he was jolted by the electrical charge and although he hung onto the ladder, because it was not secured to something stable, it and he fell to the ground. Thus, the lack of a secured ladder constituted a violation of the statute, and is a proximate cause of the accident.

 

The dissenting opinion found a question of fact as to whether the ladder, which was not shown to be defective in any way, failed to provide proper protection and whether plaintiff should have been provided with additional safety devices.

 

Labor Law § 240(1) (DRA) 

 

The Court of Appeals adopted the dissent’s rationale and determined the record presents a triable issue of fact as to whether the ladder failed to provide proper protection, and whether plaintiff should have been provided with additional safety devices, citing Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287 (2003]; Barreto v Metropolitan Transp. Auth., 25 NY3d 426 (2015), rearg denied 25 NY3d 1211 (2015). Thus, the Court of Appeals denied plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim.

 

PRACTICE POINT:  The basic lesson here is that while a safety device may not provide protection from every potential manner of harm, here an electric shock causing the plaintiff to fall from a perfectly good ladder, it is question of fact for the jury to determine if the plaintiff should have been provided with an additional safety device which would have prevented the fall.

 

 

 

                                         Paulino v Bradhurst Assoc., LLC

November 1, 2016

Appellate Division, First Department

 

Plaintiff was allegedly injured when a screw he was driving into Sheetrock using a power drill sprang back and struck him in the eye. The trial court denied defendants Bradhurst and Tryax’s motion to dismiss the Labor Law § 241(6) claim predicated upon an alleged violation of Industrial Code (12 NYCRR) § 23-1.8(a), and granted their motion seeking contractual indemnification against defendant Universal.

 

Labor Law § 241(6) (JAE)

 

On appeal, the First Department affirmed finding an issue of fact as to whether plaintiff was “engaged in an[] . . . operation which may endanger the eyes” (Industrial Code [12 NYCRR] § 23-1.8[a]).

 

Indemnity Issues in Labor Law (SEP)

 

Universal entered into a contract with Tryax, which provided Universal would provide indemnity to both Tryax and Bradhurst.  As written, the Court ruled that the language of the agreement clearly intended to apply to “renovation work,” and that plaintiff’s injuries (as an employee of Tryax) arose from such renovation work. 

 

Moreover, as there was a determination that Bradhurst only faced vicarious liability pursuant to Section 241(6) violations, it followed that Bradhurst had made its prima facie showing for indemnity.

 

 

McLean v Tishman Constr. Corp.

November 17, 2016

Appellate Division, First Department

                                         

Plaintiff testified that a metal beam, while being placed on a flatbed truck, fell off the blades of a forklift, slamming plaintiff’s foot and causing him to fall off the truck. The trial court denied plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim, and granted defendants’ cross-motion to dismiss the complaint.

 

Labor Law § 240(1) (DRA) 

 

The First Department reversed as plaintiff’s testimony established prima facie that “plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” and therefore liability exists under Labor Law § 240(1), citing Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 (2009).

 

The Court distinguished defendants’ cases since they did not involve objects falling on or toward workers on flatbeds but workers falling from flatbeds, implicating only the adequacy of safety devices for falling workers. The court rejected defendants’ sole proximate cause argument because plaintiff’s injuries “were caused at least in part by the lack of safety devices to check the beam’s descent as well as the manner in which [his coworker] lowered the beam”, citing Bonaege v Leighton House Condominium, 13 AD3d 648, 649-59 (1st Dept 2015).

 

PRACTICE POINT:  The important point in this case is that it is not a falling worker case, but rather a falling object case.  A plaintiff falling off a flatbed truck is not a labor law case as the courts have ruled that a truck bed is not the type of raised surface the labor law was designed to protect from causing injury, but rather a common work site condition.  Here, however, it was the falling object which started the chain of events which lead to the plaintiff’s injury is exactly the type of accident the law is designed to protect against.

 

Labor Law § 241(6) (JAE)

 

The First Department agreed that Labor Law § 241(6) claims predicated on Industrial Code (12 NYCRR) §§ 23-1.16, 23-2.3, 23-6.1 and 23-8.1 were properly deemed abandoned, since plaintiff failed to specify any particular subsection(s) and subdivision(s) of these provisions.  The remaining provisions on which plaintiff relies, 12 NYCRR 23-1.5(a) and (c)(1) and (2), are insufficient as predicates for Labor Law § 241(6) liability, since they set forth general rather than specific standards of conduct.

 

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

 

The First Department affirmed the dismissal, holding that the defendants established prima facie that they did not have the authority and control over the injury-producing work necessary to support the Labor Law § 200 and common-law negligence claims. While defendant Tishman, in its capacity as construction manager, had general supervisory and coordinating responsibilities, it did not have the requisite level of direct supervision and control over the injury-producing activity. Nor is Tishman's authority to control safety at the work site and stop work if it observed a dangerous condition sufficient to support the Labor Law § 200 and common-law negligence claims as against it.

 

Celaj v Cornell

November 29, 2016

Appellate Division, First Department

                                         

Plaintiff was allegedly injured when he fell off a scaffold without guardrails that would have prevented his fall. The trial court granted plaintiff’s motion for partial summary judgment on the Labor Law §§ 240(1) and 241(6) claims predicated upon an alleged violation of Industrial Code (12 NYCRR) §§ 23-5.18(b).

 

Labor Law § 240(1) (DRA) 

 

The First Department affirmed because contrary to defendant’s argument, there was no admissible evidence in the record that safety railings were provided and thus plaintiff was not afforded proper protection under the statute, relying on Lipari v AT Spring, LLC, 92 AD3d 502, 504 (1st Dept 2012); Vergara v SS 133 W. 21, LLC, 21 AD3d 279 (1st Dept 2005). The court held defendant’s expert’s opinion that the lack of safety railings accorded with industry customs and regulations is irrelevant under Labor Law § 240(1).

 

PRACTICE POINT:  First, where a plaintiff falls from a scaffold because it does not have railings on it, the scaffold is not an appropriate safety device and the answer to the question is always yes, this is a labor law case and again yes we will be awarding Summary Judgment to the plaintiff.  The argument that there was a second reason for the fall, be it unlocked wheels or failure to put on the supplied harness is meaningless at that point.  Where the safety device is not appropriate to keep the plaintiff safe from falling, the statute is violated and a proximate cause of the accident.  The conduct of the plaintiff at this point becomes only contributory as given the violation of the statute which was a proximate cause of the accident, nothing else can ever be the sole proximate cause of the accident and, as the statute creates absolute liability on the defendant there can be no offset for the conduct of the plaintiff short of it being the sole proximate cause.

 

Labor Law § 241(6) (JAE)

 

Similarly, the First Department found the motion court also properly refused to dismiss plaintiff’s Labor Law § 241(6) claim insofar as it is predicated on Industrial Code (12 NYCRR) § 23-5.18(b), which requires safety rails on manually propelled scaffolds without regard to the height of the scaffold.

 

Chong v 457 W. 22nd St. Tenants Corp.

November 29, 2016

Appellate Division, First Department

                                         

Plaintiff allegedly was injured when he fell from a six-foot-high Baker’s scaffold, which he was directed to use in order to plaster a ceiling. The trial court granted plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim against defendant Bulson, and denied Bulson’s motion to dismiss the complaint except to the extent of dismissing the Labor Law § 241(6) claim predicated on various Industrial Code regulations.

 

Labor Law § 240(1) (DRA) 

 

The First Department held plaintiff was entitled to summary judgment because the record shows that the scaffold “had no side rails, and no other protective device was provided to protect him from falling off the sides”, relying on Vergara v SS 133 W.21, LLC, 21 AD3d 279, 280 (1st Dept 2005).

 

The Court also rejected defendants’ sole proximate cause argument because although plaintiff testified that he and his coworker had discussed moving the scaffold, he further testified that he screwed a plank into the ceiling after that discussion, the coworker did not say anything when he moved the scaffold, and plaintiff did not realize that his coworker was going to move the scaffold until he felt it move.

 

PRACTICE POINT:  This case is the first cousin of the Celij case immediately above, not really a surprise as both decisions came out of the first on the same day.  To state the rule again, if there is a violation which is a proximate cause of the accident, then nothing else can ever be the sole proximate cause of the accident and Summary Judgment will be granted to the plaintiff.

 

Labor Law § 241(6) (JAE)

 

With regard to the § 241(6) claim, the First Department found, as it did in Celaj above, that the motion court properly refused to dismiss plaintiff's Labor Law § 241(6) claim insofar as it is predicated on Industrial Code (12 NYCRR) § 23-5.18(b), which requires safety rails on manually propelled scaffolds without regard to the height of the scaffold.

 

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

 

The First Department affirmed, holding that the trial court properly denied Bulson's motion insofar as it sought dismissal of plaintiff's Labor Law § 200 and common-law negligence claims, since Bulson provided the scaffold lacking safety rails.

 

Mills v City of New York

November 2, 2016

Appellate Division, Second Department

                                         

Plaintiff allegedly was injured when a ladder which he was using to descend from a scaffold shifted and fell, causing him to fall on the ground. The trial court granted plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim.

 

Labor Law § 240(1) (DRA) 

 

Defendants’ sole argument on appeal was that plaintiff’s motion was untimely because it was made more than 120 days after the note of issue was filed. The Second Department affirmed the trial court’s decision as the note of issue was vacated while plaintiff’s motion was pending, and therefore was timely.

 

PRACTICE POINT:  First, always diary the day that Summary Judgment motions must be made, and recall that 120 days is the longest time you could have.  Note that many courts have shorter time limits.  In fact

 

Goodwin v Dix Hills Jewish Ctr.

November 9, 2016

Appellate Division, Second Department

                                         

Plaintiff, an employee of nonparty Jerry Percoco, was installing wood paneling and molding over sheetrock and metal doors. Before starting his work, he removed two speakers from the wall and upon completing their work they were asked to rehang the two speakers. Plaintiff needed to drill holes and install brackets in an elevated position of the room, and fell from a ladder when it suddenly “starting swinging” and causing plaintiff to fall. 

 

The trial court granted defendant motion to dismiss the Labor Law §§ 240(1), 241(6), 200 and common-law negligence claims, and denied plaintiff’s motion for summary judgment on his claims for alleged violations of Labor Law §§ 240(1) and 241(6).

 

Labor Law § 240(1) (DRA) 

 

The Second Department reversed as plaintiff met his burden in moving for summary judgment by demonstrating prima facie that he was engaged in the “altering” of a building at the time of his accident and thus he was entitled to the protections of the statute. Installing wood paneling, which the court determined changed the dimension, thickness, and composition of the sheetrock walls and steel doors, constituted a significant physical change to the configuration or composition of the building, citing Saint v Syracuse Supply Co., 25 NY3d 117 (2015).

 

The Court held plaintiff was injured while rehanging a speaker that he had removed to enable them to install the wood paneling and thus plaintiff was injured while performing work “ancillary to” a covered activity, entitling him to the statutory protections under the statute. Plaintiff’s proffered evidence the ladder he fell from was inadequately secured to provide him with proper protection, and the failure to secure the ladder was a proximate cause of his injuries.

 

PRACTICE POINT:  So the analysis must start, as always, with the 4 main questions.  1) was the plaintiff and appropriate plaintiff, 2) was the defendant and appropriate defendant, 3) was the overall project the type of project covered by the labor law and 4) was the injury to the plaintiff cause by the effect of gravity.  Here 1, 2 and 4 are obvious so we need only look at the type of project involved.  Here the overall project was clearly either altering or construction in installing the wood paneling over the entire room and doors.  It is not just the activity of the plaintiff at the exact second of the injury but the overall project he is involved in that is analyzed.  That said I believe the court would have found that hanging the speakers in and of itself would have qualified as a significant physical change to the configuration or composition of the building.  Recall the in Joblon the Court of Appeals said that drilling a hoe in a wall to pass a wire through it qualifies.  Here the plaintiff was drilling holes in the wall to insert screws to hold the speakers in place, and likely thus a significant physical change.

 

 

Labor Law § 241(6) (JAE)

 

However, the Second Department held that the trial court properly granted that branch of the defendant's motion which was to dismiss the cause of action alleging a violation of Labor Law § 241(6), and properly denied that branch of the plaintiff’s motion which was for summary judgment on the issue of liability on that cause of action.

 

Although the plaintiff was entitled to the protections of Labor Law § 241(6) because he was working in an area where “construction work” was being performed, the defendant established, prima facie, that it did not violate any section of the New York State Industrial Code, and the plaintiff failed to raise a triable issue of fact in opposition thereto.

 

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

 

The Second Department affirmed, holding that the Supreme Court properly granted that branch of the defendant's motion which was for summary judgment dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence. Here, the defendant established, prima facie, that it did not have the authority to supervise or control the performance of the plaintiff's work, and in opposition, the plaintiff failed to raise a triable issue of fact.

 

                                                     Mammone v T.G. Nickel & Assoc., LLC

November 9, 2016

Appellate Division, Second Department

                                         

Plaintiff was assigned to fix air conditioners on the roof of a school. After completing the necessary repair, he determined the air filters needed to be replaced. While climbing up the ladder to change the filters, plaintiff fell off the ladder and allegedly sustained injuries.

 

The trial court granted defendant T.G. Nickel’s motion for summary judgment dismissing the Labor Law §§ 240(1), 241(6), 200 and common-law negligence claims.

 

Labor Law § 240(1) (DRA) 

 

The Second Department affirmed because plaintiff was not engaged in an enumerated activity protected under the statute, and plaintiff’s accident did not involve construction, demolition or excavation work. 

 

PRACTICE POINT:   Changing filters, much like changing light bulbs, is routine maintenance and not repair, thus it is not an enumerated activity.  Where the injury looks to have been caused during something you suspect to have been maintenance check for the frequency with which that work is done and consider if the item is one which has a specific effective life cycle and will then need to be replaced. I have wondered for a while if we will see a case where a court changes the long standing rule that light bulbs burn out after a period of time and need to be replaced thus it is not repair but rather maintenance.  The last light bulbs I bought had some incredibly long life expectancy and if that bulb burns out after a mere year of two does that become repair as the bulb should have lasted far longer?  These are the things that keep me up at night.

 

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

 

The Second Department affirmed, holding that the Supreme Court properly granted that branch of Nickel's motion for summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action insofar as asserted against it, albeit for a different reason. Nickel established, prima facie, that the ladder was not defective, and the plaintiff conceded that fact. Thus, the potential liability of Nickel, contrary to the Supreme Court's finding, was not based on its actual or constructive notice of any dangerous or defective condition of the ladder. Instead, the plaintiff allegedly was injured as a result of the manner in which he performed his work. Accordingly, recovery against Nickel under Labor Law § 200 or under the common law may only be found if Nickel had the authority to supervise or control the performance of the work. Nickel established, prima facie, that it did not have authority to exercise supervision or control over the means and methods of the plaintiff's work. In opposition, the plaintiff failed to raise a triable issue of fact.  

 

Pacheco v Halsted Communications, Ltd.

November 9, 2016

Appellate Division, Second Department

                                         

Plaintiff allegedly was injured when he fell while descending a 28-foot ladder after installing equipment on the roof of a single-family home. The trial court granted plaintiff’s cross-motion for partial summary judgment on the issue of liability on the Labor Law § 240(1) claim, and denied defendant Halsted’s motion to dismiss that claim.

 

Labor Law § 240(1) (DRA) 

 

The Second Department held that plaintiff established his prima facie entitled to judgment as a matter of law on the issue of liability by demonstrating that he was injured when he fell while descending an unsecured ladder and that he was not provided with a safety device to prevent him from falling, citing Grant v City of New York, 109 AD3d 961 (2d Dept 2013); Canas v Harbour at Blue Point Home Owners Assn., Inc., 99 AD3d 962, 962 (2d Dept 2012).

 

PRACTICE POINT:  When a plaintiff falls because the supplied safety device was not appropriate and did not protect the plaintiff, here because the ladder was too short, the critical question is always the same, was there an appropriate safety device available to the plaintiff, did he know to use it and did he not use it or misuse it.  That, as I have said for hundreds if not thousands of times, is the basis of the sole proximate cause defense.  In addition we are reminded here to always put all of your evidence in your motion.  You will not be afforded the option of moving to renew with new evidence if it was available to you in the first instance and you did not go and get it.  Here it appears that there may well have been a co-employee who would have testified that the 40 foot ladder was in fact available to the plaintiff but that he simply failed to use it.  That is one of the critical elements of the sole proximate cause defense and must be a portion of the original motion in admissible form.  The basis for a motion to renew is that new evidence was discovered which was not available to the party at the time of the original motion. 

Recall the difference between a motion to renew and a motion to reargue.  A motion to renew, as above, is the discovery of new evidence where a motion to reargue is where you are saying that the court has misapprehended the facts already supplied to the court or has misapplied the law, essentially that the court is wrong on the law.  In either case do not make the rookie mistake of not appealing from the original order as an appeal to the motion to either renew or reargue is only on the court’s decision to hear the motion, not on the facts of the original motion, and it is almost always within the sound discretion of the court to make that decision.

           

 

Palumbo v Transit Tech., LLC

November 9, 2016

Appellate Division, Second Department

                                         

Plaintiff allegedly was injured while working as an electrical mechanic at an elevated subway station, feeding cable into a trench that was approximately three feet wide and two feet deep. The cable was attached to a pulling machine located eight hundred feet away, which controlled the pace at which the cable moved into the trench. As he was working, a train began approaching so he picked up the cable and held it above his head to avoid the train. The cable suddenly accelerated forward, causing plaintiff to be pulled into the trench and allegedly sustain injuries.

 

The trial court denied plaintiff’s motion for summary judgment motions on his Labor Law § 240(1) claim, and granted defendants’ cross-motion to dismiss the Labor Law §§ 240(1) and 241(6) claims.                                    

 

Labor Law § 240(1) (DRA) 

 

The Second Department affirmed the trial court’s decision to dismiss the Labor Law § 240(1) claim because defendants established plaintiff’s injuries were not caused by the elevation or gravity-related hazards encompassed by the statute, citing to Gasques v State of New York, 15 NY3d 869 (2010); Gonzalez v Turner Constr. Co., 29 AD3d 630 (2d Dept 2006); see also Oakes v Wal-Mart Real Estate Bus. Trust., 99 AD3d 31 (3d Dept 2012);

 

PRACTICE POINT:  Twas not gravity injured the plaintiff.  Here it was the motion of the cable being mechanically pulled into the trench which caused the plaintiff to fall and sustain injury, and is not thus gravity related and not the type of accident the labor law was designed to cover, even under the broadened scope following Runner.

 

Labor Law § 241(6) (JAE)

 

It reserved the finding relative to 241(6).  Defendants made a prima facie showing of entitlement to judgment as a matter of law dismissing the cause of action alleging a violation of Labor Law § 241(6) by demonstrating, inter alia, that 12 NYCRR 23-1.7(b)(1), which is the only Industrial Code provision upon which the plaintiff presently relies, is inapplicable to the facts of this case.

 

That provision provides, in pertinent part, that “[e]very hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing” (12 NYCRR 23-1.7[b][1][i]).  Although this provision is sufficiently specific to support a cause of action under Labor Law § 241(6), the trench in this particular case, which was only two feet deep, was not a hazardous opening within the meaning of 12 NYCRR 23-1.7(b)(1).

 

                                  Karwowski v Grolier Club of City of N.Y.

November 16, 2016

Appellate Division, Second Department

 

Plaintiff allegedly sustained injuries when he fell off a scaffold while painting an interior wall. The trial court granted plaintiff’s motion for summary judgment on the issue of liability on his Labor Law § 240(1) claim, and denied defendant’s cross-motion to dismiss that claim and the Labor Law § 241(6) claim predicated upon alleged violations of Industrial Code regulations (12 NYCRR) §§ 23-1.15, 1.16, 5.1(a) and (c)-(k), 5.3(e) and (g), 5.4, 5.5, 5.6, 5.13(d) and 5.18(a)[(i).

                                   

Labor Law § 240(1) (DRA) 

 

The Second Department reversed as plaintiff’s own submissions demonstrated the existence of triable issues of fact as to how the accident occurred and it cannot be concluded, as a matter of law, that the alleged failure to provide him with proper protection proximately caused his injuries, relying on Campos v 68 E. 86th St. Owners Corp., 117 AD3d 593 (1st Dept 2014); Degen v Uniondale Union Free Sch. Dist., 114 AD3d 822 (2d Dept 2014).

 

PRACTICE POINT:  One simple word of advice, read everything.  Here there was, within documents actually attached to the motion, differing versions of the accident one of which supported the plaintiff’s claim and one version which did not.  Submitting to the court a document which supports the oppositions claim sometimes simply can’t be avoided, but make sure you have made that decision weighing the options and not that the first you hear of it is in the oppositions papers, or worse, in a question from the bench about it. 

 

Labor Law § 241(6) (JAE)

 

The Supreme Court erred in denying that branch of the defendant’s cross motion which was for summary judgment dismissing so much of the Labor Law § 241(6) cause of action as was based upon alleged violations of 12 NYCRR 23-1.15, 23-1.16, 23-5.1(a), (c)-(k), 23-5.3(e), (g), 23-5.4, 23-5.5, 23-5.6, 23-5.13(d), and 23-5.18(a)-(d), (f), (i).

 

The defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that 12 NYCRR 23-5.1(a) and (f) did not set forth safety standards that were sufficiently specific to support a Labor Law § 241(6) claim and that 12 NYCRR 23-1.15, 23-1.16, 23-5.1(c)-(e), (g)-(k), 23-5.3(e), (g), 23-5.4, 23-5.5, 23-5.6, 23-5.13(d), and 23-5.18(a)-(d), (f), (i) were inapplicable to the facts of this case or too general to impose liability.  In opposition, the plaintiff failed to raise a triable issue of fact.

 

With respect to so much of the Labor Law § 241(6) cause of action as was based upon alleged violations of 12 NYCRR 23-5.18(e), (g), and (h), however, the defendant failed to establish its prima facie entitlement to judgment as a matter of law. These provisions, which relate to casters and footing to hold a scaffold in position, and require that scaffolding be moved on floors which are level and free of obstruction, are applicable to this case, and sufficiently specific to premise liability under Labor Law § 241(6).  Accordingly, the Supreme Court properly denied that branch of the defendant's cross motion which was for summary judgment dismissing so much of the Labor Law § 241(6) cause of action as was based upon alleged violations of 12 NYCRR 23-5.18(e), (g), and (h).

 

Sheng Hai Tong v K & K 7619, Inc.

November 16, 2016

Appellate Division, Second Department

 

Plaintiff severed his thumb cutting plastic floor tile while renovating property owned by defendant K & K and leased by Xiao Wu Chen. Plaintiff was using a makeshift table saw created by affixing a circular saw upside down to the bottom of the table such that the safety guard was underneath the table while the blade was on top.

 

The trial court denied defendant/third-party plaintiff/second third-party plaintiff K & K’s cross-motion for summary judgment dismissing the complaint and on its claims for contractual indemnification against third-party defendant Family and second third-party defendant Xiao individually and d/b/a Family 99 Cent Store. The trial court also granted Chen’s motion for summary judgment dismissing the Labor Law § 241(6) claim.

 

Labor Law § 240(1) (DRA) 

 

The Second Department held that K & K established prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 240(1) claim by demonstrating that plaintiff’s injuries did not result from an elevation-related hazard, citing Linkowski v City of New York, 33 AD3d 971, 974 (2d Dept 2006). In opposition, plaintiff failed to raise a triable issue of fact.

 

PRACTICE POINT:  Even as the courts broaden 240(1) it is not broad enough to encompass cutting your thumb off with a power saw.  Ironically this brings to light one of my many issues with the law, specifically section 11, that cutting off your index finger is a grave injury while removing your thumb with a power saw, the specific digit which separates us from the apes, is not, thus preventing a third party claim against the employer, the real party at fault here.

                               

 

Labor Law § 241(6) (JAE)

The Second Department reversed the motion court’s grant of that branch of Chen’s motion seeking dismissal of the Labor Law § 241(6) cause of action insofar as asserted against him.   Although a plaintiff asserting a Labor Law § 241(6) cause of action must allege a violation of a specific provision of the Industrial Code, a failure to identify the Code provision in the complaint or bill of particulars is not fatal to such a claim.

Here, the plaintiff’s belated assertion of a violation of 12 NYCRR 23-1.12(c)(2) is properly considered since it involved no new factual allegations, raised no new theories of liability, and caused no prejudice.

12 NYCRR 23-1.12(c)(2) requires that “[e]very power-driven saw, other than a portable saw, . . . be equipped with a guard which covers the saw blade to such an extent as will prevent contact with the teeth.”  The motion court incorrectly concluded that this provision was inapplicable to the facts of this case because it applies to table saws, not portable saws.  “[W]hen determining the applicability of a regulation," the court must "take into consideration the function of a piece of equipment, and not merely the name". 

The circular saw at issue was being used as a table saw at the time of the plaintiff’s accident, and, thus, the same safety precautions as are required for other power-driven table saws are applicable.  Accordingly, the branch of Chen's motion which was for summary judgment dismissing the Labor Law § 241(6) cause of action insofar as asserted against him should have been denied.

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

 

The Second Department affirmed the denial of that branch of K and K's cross motion for summary judgment dismissing the Labor Law § 200 and common-law negligence causes as untimely.  The Court declined to hear this portion of the cross-motion because it was not made on grounds nearly identical to the similar branch of Chen's timely motion, since it rested on the separate factual assertion that it did not exercise supervisory control over the work.

 

Indemnity Issues in Labor Law (SEP)

 

K and K’s motion to dismiss Labor Law § 200 claims, as well as its motion for contractual indemnity were dismissed as untimely.  While the court notes that an untimely motion may be considered where it is essentially the same as a motion from another party which was timely presented, here K and K’s motion asserted different factual arguments than that of the lessee, Chen.  

 

Accordingly, regardless of the merits of K and K’s application, it was untimely and the trial court did not abuse its discretion in refusing to hear it.

 

Guallpa v Canarsi Plaza, LLC

November 30, 2016

Appellate Division, Second Department

                                         

Plaintiff allegedly was injured while working as an ironworker for subcontractor GI at a site owned by Canarsie, when he was standing on a ladder installing nuts and bolts into an elevated steel beam. Plaintiff’s foreman was operating a forklift, which either struck or pushed the elevated steel beam that was connected to the steel beam that plaintiff was working with, allegedly causing the steel beam to move and pin plaintiff’s left elbow against a concrete wall.

 

The trial court denied Canarsie and the general contractor FJM’s motion for summary judgment dismissing the Labor Law § 240(1) claim, and granted their motion to dismiss the Labor Law § 241(6) predicated upon an alleged violation of Industrial Code regulation (12 NYCRR) § 23-2.3(a)(1) and to dismiss the Labor Law § 200 and common-law negligence claims against them.

 

Labor Law § 240(1) (DRA) 

 

The Second Department held defendant established that plaintiff’s accident did not involve a gravity-related or elevation related hazard, citing to Nicometi v Vineyards of Fredonia, LLC, 25 NY3d 90, 99 (2015); Torres v City of New York, 127 AD3d 1163 (2d Dept 2015); Oakes v Wal-Mart Real Estate Bus. Trust, 99 AD3d 31 (3d Dept 2012). In opposition, plaintiff failed to raise a triable issue of fact.

 

PRACTICE POINT:  Here the beam did not move because of gravity, but rather because it was the application of force by mechanical means, being struck or pushed by the forklift.  The statute only provided for liability when it is the force of gravity which was the cause of the injury.

 

Labor Law § 241(6) (JAE)

 

With regard to Labor Law § 241(6), this section imposes on owners and contractors a nondelegable duty to “provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed.”  As a predicate to a Labor Law § 241(6) cause of action, a plaintiff must allege a violation of a concrete specification promulgated by the Commissioner of the Department of Labor in the Industrial Code.

 

Here, the appellate division found the motion court properly granted those branches of the moving defendants' motion which were for summary judgment dismissing, insofar as asserted against them, so much of the cause of action alleging Labor Law § 241(6) violations premised upon three of the enumerated Industrial Code provisions. First, 12 NYCRR 23-9.2(b)(1) is merely a general safety standard that does not give rise to a nondelegable duty under Labor Law § 241(6).  Second, forklifts are expressly exempted from the safety provisions of 12 NYCRR 23-6.1(c) and (d), and a forklift was being used at the time of the plaintiff's accident.  Third, 12 NYCRR 23-1.5(b) serves to amplify other provisions of the Industrial Code that require a designated individual to perform or supervise work, and thus does not provide an implementing regulation upon which to predicate a Labor Law § 241(6) cause of action.

 

However, the court erred in directing the dismissal of so much of that cause of action as was based on an alleged violation of 12 NYCRR 23-2.3(a)(1) insofar as asserted against the moving defendants. The evidence they submitted failed to establish, prima facie, that, prior to the plaintiff's accident, a crane “securely fastened in place” the structural steel beams that pinned the plaintiff's elbow against the wall. They also failed to demonstrate that 12 NYCRR 23-2.3(a)(1) does not apply if hoisting ropes were used before the accident, but were not used at the time of the alleged accident.  Accordingly, the moving defendants failed to demonstrate, prima facie, that this section was inapplicable, that the section was applicable but not violated, or that the alleged violation of that section was not a proximate cause of the plaintiff's injuries, and that branch of the moving defendants' motion should have been denied regardless of the sufficiency of the opposing papers.

 

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

 

The Second Department affirmed, holding that the Supreme Court properly granted that branch of the moving defendants' motion for summary judgment dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence insofar as asserted against FJM. The moving defendants established, prima facie, that FJM did not have the authority to exercise supervision or control over the injury-producing work, and that GI exercised control and supervision over the injury-producing work. In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff's deposition testimony established only that FJM exercised general supervision over the construction site. Contrary to the plaintiff's contention, FJM's contract with Canarsie did not provide FJM with the authority to control the structural steel work that allegedly caused his injuries. Moreover, contrary to the plaintiff's contention, when the manner of work is at issue, no liability will attach to a contractor solely because it may have had notice of the allegedly unsafe manner in which work was performed.

 

Millette v Tishman Constr. Corp.

November 30, 2016

Appellate Division, Second Department

 

Plaintiff allegedly sustained injuries when he was struck by a sheet of plywood that fell from the floor above him. The trial court denied plaintiff’s motion for summary judgment on his Labor Law §§ 240(1) and 241(6) claims, and granted defendants’ cross-motion to dismiss those claims. Upon granting plaintiff’s motion for leave to renew, the trial court adhered to its determination regarding the § 240(1) claim but denied dismissal of the § 241(6) claim.

 

Labor Law § 240(1) (DRA) 

 

Plaintiff contends on appeal that his statement in which he asserted his coworker claimed to have caused the plywood sheet to fall by stepping on it when it was located “beyond its normal designated spot … hanging over a wide column,” was insufficient to establish plaintiff’s entitled to judgment as a matter of law because it was unsworn and failed to demonstrate that the plywood was required to be secured for the purposes of the undertaking.

 

The Second Department held that defendants established their prima facie entitlement to judgment as a matter of law dismissing the § 240(1) by submitting the testimony of Tishman’s superintendent, which demonstrated the plywood that fell was not being hoisted or secured and did not require securing for the purposes of the undertaking at the time it fell, citing Fabrizi v 1095 Ave. of Ams., L.L.C., 22 NY3d 658 (2014); Quattrocchi v F.J. Sciame Constr. Corp., 11 NY3d 757, 758 (2008); Quatar v City of New York, 5 NY3d 731 (2005).

 

PRACTICE POINT:  Once again we see the importance of making sure your evidence is in admissible form here by submitting sworn testimony.  While a falling object no longer needs to be in the process of being hoisted, it does need to be an item which should be secured to prevent it falling and injuring someone.

 

Labor Law § 241(6) (JAE)

 

As to the Labor Law § 241(6) cause of action, which was predicated upon a violation of 12 NYCRR 23-1.7(a)(1), the Second Department found that the defendants established their prima facie entitlement to judgment as a matter of law based upon the plaintiff's supervisor’s affidavit, in which he averred that the area where the plaintiff was working was not normally exposed to falling material or objects. 

 

However, in opposition, the plaintiff successfully raised a triable issue of fact by submitting the plaintiff’s supervisor's deposition testimony, in which he testified, in contradiction to his affidavit, that it was known that objects were "always" falling at the plaintiff's worksite, and that objects fell "sometimes" and "once in a while”

 

Murdock v R&P Oak Hill Dev., LLC

November 10, 2016

Appellate Division, Fourth Department

 

Plaintiff allegedly sustained injuries when he fell while standing atop a concrete slab which he and his coworker claimed was four to five feet above ground while other evidence, including testimony from plaintiff’s supervisor that plaintiff had recounted just after the accident that he had merely misstepped off the concrete slab, showed the slab was only one foot or so from the ground.

 

The trial court held defendant possessed the status of a responsible contractor or owner’s agent potentially subject to liability under the Labor Law. With respect to plaintiff’s Labor Law § 240(1) claim, the trial court found basic triable issues of fact as to what actually happened i.e. whether plaintiff fell in such a way as to bring his claim within the ambit of the statute. The court also found an issue of fact regarding the height and other dimensions of the slab plaintiff allegedly fell or misstepped down from, precluding summary judgment for both parties.                

 

In support of his Labor Law § 241(6) claim, plaintiff relied on Industrial Code regulations § 23-1.7(e)(2), 3.4(c)(2) and 9.4(h)(5). The court held 1.7(e)(2) was not violated by the accumulation of debris because plaintiff’s assigned task was to sort through loads of debris. The court also held 3.4(c)(2) did not apply because no active demolition work, but only sorting and clean-up tasks, were ongoing at the time of plaintiff’s injury. Finally, 9.4(h)(5) was held inapplicable as plaintiff was not someone passing or working “under” a “suspended load” being “carried” or swung over plaintiff’s work area.                 

 

The trial court also dismissed the Labor Law § 200 and common-law negligence claims because plaintiff’s injury arose out of his employer’s means and methods, tools and materials which defendant exercised no supervision, direction or control over.

 

Labor Law § 240(1) (DRA) 

 

The Fourth Department unanimously affirmed the trial court’ decision to grant in part defendant’s motion for summary judgment dismissing the complaint, and to deny plaintiff’s cross-motion for partial summary judgment on his Labor Law §§ 240(1) and 241(6) claims.

 

PRACTICE POINT:  Two important issues here.  First the court appropriately looked at the injuries sustained by the plaintiff and separated those caused by normal hazards on the job site, tripping and falling to the ground but not falling to a lower level, and dismissed any claims for those injuries sustained which were not covered by the labor law.  Second, the court found a question of fact as to those claims under 240(1) where the plaintiff fell from the concrete pad.  There is differing testimony as to the height of the pad, from a foot to five feet above grade, and as to the size of the pad.  The trial court therefore would send it to the jury to determine if there were any safety devices which could have prevented the plaintiff’s injury and the fourth agreed.   A completely logical outcome given the factual conflict.  Please note that the decision of the trial court was by Justice NeMoyer, a new member of the Fourth Department bench, and a welcome addition, his decisions are well reasoned and logical, without a slant towards either side.

 

 

 

Scruton v Acro-Fab Ltd.

November 10, 2016

Appellate Division, Fourth Department

 

Plaintiff allegedly was injured while he was nailing down roof trusses on a building extension being constructed for defendant. At the time of his fall, plaintiff was standing with one foot on the top of the building’s outer wall and one foot on a truss to perform that work. When that unsecured truss came free, plaintiff lost his balance and fell to the ground. The trial court granted that portion of plaintiff’s motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) claim.

 

Labor Law § 240(1) (DRA) 

 

Where plaintiff’ submissions in support of the motion raise a triable issue of fact whether his or her own actions were the sole proximate cause of the injury, plaintiff failed to make a prima facie showing of entitlement to judgment as a matter of law on the issue of liability because “if the plaintiff is solely to blame for the injury, it necessarily means that there has been no statutory violation”, citing to Banks v LPCiminelli, Inc., 125 AD3d 1334 (4th Dept 2015).

 

Here, the majority finds a triable issue of fact whether plaintiff knew that he was expected to use a readily available ladder at the work site to perform his task, but for no good reason chose not to do so, and whether he would have been injured had he not made that choice. Thus, the majority determined the burden never shifted to defendant and denial of plaintiff’s motion was required regardless of the sufficiency of the opposition papers.

 

Justices Centra and Curran dissent and would find that plaintiff met his burden in establishing that defendant failed to furnish, place, and operate any safety device to protect him from falling while he was installing the roof trusses, relying on Luna v Zoological Socy. of Buffalo, Inc., 101 AD3d 1745 (4th Dept 2012); Williams v City of Niagara Falls, 43 AD3d 1426 (4th Dept 2007); Whiting v Dave Hennig, Inc., 28 AD3d 1105 (4th Dept 2006). The dissent alternatively concludes that plaintiff met his burden by demonstrating the unsecured tress upon which he was partially standing to perform his work collapsed, thereby causing him to fall.

 

According to the dissent, defendant failed to submit any evidence that a ladder had been erected for plaintiff’s specific task or that plaintiff had been instructed to use the ladder plaintiff’s employer identified during depositions or that plaintiff chose not to use it for no good reason.

 

PRACTICE POINT:  A couple of important issues to be addressed.  First is that before the defense even needs to raise the sole proximate cause defense the plaintiff must establish that the statute was violated and that such violation was a proximate cause of the injury.  The majority here finds that the plaintiff did not do so as his actions in not using the appropriate and available safety device, the ladder, was the sole proximate cause of the accident and thus no prima facie case was ever established.  The second is what appears to be a divide between the concurring judges and the dissenting ones as to whether the ladder need to simply be present at the site or if it needs to be actually set up for use by the plaintiff in the appropriate position.

 

 

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

 

 

12 NYCRR § 23-1.8(a) – Protection in Construction, Demolition and Excavation Operations; Personal protective equipment; Eye protection.

 

§ 23-1.8(a) is sufficiently specific.

 

Crawford v Williams, 198 AD2d 48, 603 NYS2d 456 (1st Dept. 1993);

Cappiello v Telehouse Intern. Corp. of America, Inc., 193 AD2d 478, 597 NYS2d 393 (1st Dept 1993);

McCune v Black River Constrs., 225 AD2d 1078, 639 NYS2d 203 (4th Dept. 1996);

McLoud v State, 237 AD2d 783, 654 NYS2d 860 (3d Dept 1997);

Galawanji v 40 Sutton Place Condo., 262 AD2d 55, 691 NYS2d 436 (1st Dept 1999);

McBrynes v Ambassador Construction Co., Inc., 290 AD2d 1078, 736 NYS2d 17 (1st Dept. 2002);

Chuckuca v Redux Realty LLC, 303 AD2d 239, 757 NYS2d 8 (1st Dept 2003);

Fresco v 157 East 72nd Street Condo., 2 AD3d 326, 79YS2d 536 (1st Dept 2003);

 

 

 

In Crawford, evidence at trial that π’s employer directed π to do demolition work without safety glasses was sufficient to show violation.

Court in Cappiello held ∆s could be liable for eye injury suffered to π carpenter while driving masonry nail through plywood & into concrete although carpenters not specifically mentioned under reg.

In McCune, court found question of fact as to whether ∆s violated regulation requiring eye protection in certain activities, where π was drilling a hole in a concrete wall when he was struck in eye.

In McLoud, π who suffered eye injury after removing his goggles when they became dirty failed to establish ∆s had opportunity to instruct him to stop working until he could replace his goggles or that they encouraged him to continue working without first cleaning goggles & thus Labor Law § 241(6) claim dismissed.

Court in Galawanji held reg. sufficiently specific to support Labor Law § 241(6) claim.

In Chuchuca, dishwasher engaged in repairing or rebuilding when piece of wire he was cutting struck him in the eye neither a “structure” nor part of on and thus reg. held inapplicable.

Fresco found no fault against ∆s for eye injuries sustained by π when nail bounced up while he was hammering it.

 

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