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Labor Law Pointers - Volume VI, No. 4

Labor Law Pointers

 

Volume VI, No. 4

Wednesday, February 1, 2017

 

A Monthly Electronic Newsletter Addressing

New York State Labor Law

Decisions and Trends

 

From the Editor:

 

Do you have a situation, we love situations.  My heart beats a little faster when I answer the phone, or gat an email that starts out with those words.Call, text or email, and we will make your situation our situation.

 

We have a changing of the guard here at Labor Law Pointers, Jen Ehman, our 241(6) superstar has agreed to step aside to allow a new member of the labor law team to step into the fray and write on those cases.  Have no fear, Jen is not leaving the labor law team, just allowing a new face to learn the ropes by reading and reviewing every single labor law case that comes out.  We welcome Eric Andrew to the staff, he has been a member of the team for several months now and I decided it was time for him to take on a portion of the newsletter.  We have also a new member of the team downstate in Brian Mark.  He joins Howard Altman in the metro office so we now have two experienced labor law attorneys there to serve your growing needs in the NYC area. 

 

I am also proud to report that Jennifer Ehman was awarded the Sheldon Hurwitz Young Lawyers Award for her outstanding contributions to the profession awarded jointly by the Torts, Insurance and Compensation Law section and the Trial Lawyers sections of the State Bar Association.  I, along with most of the labor law team and several other firm attorneys, were on hand in New York for the presentation.  This award is uniquely important to all from the firm as it is named after our founding partner, Sheldon Hurwitz.

 

We have also added Jennifer Phillips to the team; she is an absolute genius at writing motions and appeals having worked for as a clerk for many years for first the appellate division and then the District court.  We welcome her with open arms.

 

This seems a logical time to once again explain our approach to defending labor law cases.  We view the defense of a labor law case as having two separate and distinct portions.

 

First is the defense of the labor law case itself. This involves the analyzing the four basic areas of a labor law case, it the plaintiff a proper plaintiff, is the defendant a proper defendant, is the overall project one covered by the law and was the accident itself and the danger to which the plaintiff was exposed of the type the labor law was designed to protect against. 

 

The second portion of the defense of these cases is trying to transfer the risk via insurance, contractual indemnity or common law indemnity to another party.  We are fortunate to have, right up the stairs; a coverage department without equal, and thus over drinks with Steve Peiper, the Hurwitz & Fine joint defense task force was born. One group to analyze the defenses to the labor law case and the second to analyze the risk transfer opportunities.  It is this this two pronged approach that we believe give us the best opportunity to provide the best defense to the clients and carriers.

 

Had an interesting question in the past month having to do with not for profits.  Assume a church is in need of gutter repair.  Assume that a parishioner owns a gutter company.  The parishioner agrees to replace the gutters for nothing.  Of course his employee falls and sustains a severe but not “grave” injury.  The church argues that the plaintiff was not a person “so employed” as the work was being done voluntarily by the gutter company.   In response the plaintiff simply says, ”I was being paid by the gutter company, I was a person so employed”.  So the church is in real trouble here.  The plaintiff has a valid claim, he was in fact a person so employed, being paid so he is a valid labor law plaintiff.  The gutter company, with whom (hopefully) the church would normally have had a contract providing additional insured status and contractual indemnity and defense, has not contract with the church and can’t be brought into the suit absent a grave injury.  Thus a good deed by the owner of the gutter company has turned on a dime and the church has a claim and no one to whom that can shift any of the risk.

 

I would be remiss if I did not point out the fact that our sister publication Coverage Pointers is full of helpful tips and case analysis of all things coverage related and beyond.  If you are interested in getting on the distribution list just drop a line to Dan Kohane at [email protected] and he will gladly add you. You will not regret it.

 

I hope everyone is having a great winter.  Remember that we relish the opportunity to make your situation our situation, please give us a call or drop us a line, we are here to help.  Until next month.  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.

Anderson v MSG Holdings, L.P.

January 3, 2017

Appellate Division, First Department

 

Plaintiff allegedly was injured when he fell from a concrete panel being installed to support seating at Madison Square Garden. He was standing six inches to a foot from the edge of the panel that he was attempting to move when he allegedly lost his balance and fell to the ground. Although he was wearing a harness, he was not tied of because there allegedly was no place to do so. He also claimed he was instructed to follow OSHA rules that did not require him to be tied-off at the height he was working.

 

The trial court denied defendants’ motion for summary judgment on the Labor Law §§ 240(1) and 241(6) claims predicated upon a violation of Industrial Code (NYCRR) § 23-1.16(b), and granted plaintiff’s cross-motion on liability for both claims.

 

Labor Law § 240(1) (DRA) 

 

The First Department unanimously affirmed, finding plaintiff established prima facie that he was subject to an elevation-related risk and was injured due to defendants’ failure to provide him with a proper place to tie off. The Court held defendants’ failure to sufficiently refute plaintiff’s testimony that there was no place for him to tie off negated their sole proximate cause defense.

 

Defendants’ contention that plaintiff could have tied off to a raker beam above his head also failed because defendants could not point to any evidence in the record that plaintiff was ever instructed to or knew to use the raker beam as a tie off point.

 

PRACTICE POINT: Defendants’ sole proximate argument was interpreted by the court to mean that plaintiff’s only option in this case was to tie off to the inserts in the most recently placed panels behind him, below his feet. The only problem is that tying off below the feet is a violation of OSHA. Remember, plaintiff can never be the sole proximate cause if there is a statutory violation and that violation was a proximate cause of his injuries.  This is a perfect case to demonstrate the need for an expert for most labor law Summary Judgment cases.  The elements that need to be proven are the availability and adequacy of a safety device the plaintiff has been instructed or knew to use but for no good reason misused or failed to use.  An expert is generally necessary to prove that the available safety device was adequate.  

 

Labor Law § 241(6) (MAS)

 

Industrial Code § 1.16(b) applies to the proper use, instruction, maintenance and measurements for safety belts, harnesses, tail lines and life lines, and is sufficiently specific to support a Labor Law § 241(6) claim. Although plaintiff was provided with a safety harness here, he was not provided with a proper place in which to tie his harness off. Accordingly, the First Department granted plaintiff summary judgment on this claim based on a violation of 1.16(b).

 

Jaycoxe v VNO Bruckner Plaza, LLC

January 3, 2017

Appellate Division, First Department

                                         

Plaintiff allegedly was injured when the ladder he was standing on slipped out from under him because it was missing the proper footing. The trial court granted defendants' motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims. 

 

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

 

The Frist Department reversed and denied the defendant’s motion for summary judgment on the Labor Law § 200 and common-law negligence claims.   Where, as here, plaintiff alleged that defendants—the premises owners—provided him with the defective ladder, the legal standard that governs claims under Labor Law § 200 is whether the owner created the dangerous or defective condition or had actual or constructive notice thereof, not whether the accident arose out of the means and methods of plaintiff's work.  The conflicting deposition testimony submitted by the parties shows that there is a triable issue as to whether defendants provided plaintiff with the allegedly defective ladder. Moreover, plaintiff's testimony that the ladder was missing its feet was sufficient to raise an issue of fact as to whether defendants had constructive notice of the defect because of its visible and apparent nature. 

 

Serrano v Consolidated Edison Co. of N.Y. Inc.

January 3, 2017

Appellate Division, First Department

 

Plaintiff slipped and fell on a scaffold platform on which he had been painting exposed structural steel on the exterior of defendant's building. After he fell, he allegedly saw a mixture of paint chips and dust on the platform. He inferred that he must have slipped on the dust and paint chips generated by his and his coworker's previous dusting and scraping of paint from the steel.

 

The trial court denied plaintiffs' motion for partial summary judgment on the Labor Law §§ 240(1) and 241(6) claims, and granted defendant's motion for summary judgment dismissing the complaint. 

 

Labor Law § 240(1) (DRA) 

 

The First Department affirmed dismissal of this claim because plaintiff’s injuries “resulted from a separate hazard wholly unrelated to the danger that brought about the need for the safety devices in the first instance.” Nor could plaintiff point to any evidence that he was injured as a result of any attempts to avoid falling off the scaffold.

 

Critically, the Court held the accumulation of paint chips and dust on the platforms on which plaintiff was working “was one of the usual and ordinary dangers at a construction site[,] to which the extraordinary protections of Labor Law § 240(1) [do not] extend.”

 

PRACTICE POINT: Usual hazards of a construction site are not the hazards from which the labor law is designed to protect workers.  There are many such hazards, and a well-crafted argument is more often being accepted by the courts as a defense to labor law claims.

 

Labor Law § 241(6) (MAS)

 

The First Department unanimously modified the trial court’s decision and granted plaintiff partial summary judgment on his Labor Law § 241(6) claim predicated on a violation of Industrial Code (12 NYCRR) § 23-1.7(e)(2) by his undisputed testimony that his incident was caused by “accumulations of … debris” on the scaffold platform. The Court held that plaintiff slipped, rather than tripped, does not render that regulation inapplicable.

 

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

 

The First Department affirmed, holding that the Labor Law § 200 and common-law negligence claims were correctly dismissed since the evidence that defendant's safety officer instructed plaintiff and his coworkers on safety rules, exercised general oversight over site safety, and conducted site walk-throughs does not establish that defendant exercised supervisory control over the means or methods of plaintiff's work.

 

 

Erkan v McDonald's Corp.

January 10, 2017

Appellate Division, First Department

                                          

Plaintiff was injured when he fell from an unsecured ladder that allegedly shifted and tilted as he tried stepping onto an adjacent, unsecured Baker’s scaffold to continue his tiling work. He filed his summary judgment motion before his deposition, and defendants argued it was premature.

 

Plaintiff’s affidavit said he was not provided with adequate safety equipment. Defendants countered with unverified accident reports and medical reports suggesting plaintiff may not have been working alone, a Baker’s scaffold may not have been present, and a coworker reported that plaintiff disregarded instructions to tile no higher than five feet and borrowed the ladder to tile up to the roof line. The trial court denied plaintiffs’ motion on his Labor Law § 240(1) claim, without prejudice to renew upon completion of discovery after plaintiff has been deposed.

 

Labor Law § 240(1) (DRA) 

 

The First Department unanimously reversed, finding plaintiff made a prima facie showing of entitlement to judgment as a matter of law on his Labor Law § 240(1) by submitting his affidavit that he was not provided with any safety equipment that would have prevent him from falling while working on the ladder and scaffold alone.

 

The Court held unverified documents/statements may only be considered in opposition to a summary judgment motion when they are not the sole basis for the court’s holding, and defendants failed to identify what information in the exclusive control of plaintiff would raise an issue of fact that plaintiff was not provided with proper safety devices to perform his work.

 

PRACTICE POINT:   Some courts are now granting Summary Judgment prior to depositions and some are not.  Be sure, before you argue that discovery is ongoing, that you know how your department rolls on that point.  Additionally, make sure that your evidence is admissible if it is critical to your defense, and if it is not critical to your defense, why are you using it.  Thus, all evidence supporting your motion should be admissible is some capacity.

 

 

Matter of New York Asbestos Litig.

January 10, 2017

Appellate Division, First Department

                                          

Decedent testified he was exposed to asbestos-containing dust while working at a power plant where ventilation was allegedly inadequate and workers did not wear masks. He received his work instructions from Keasbey’s foreman, Con Ed’s subcontractor.

 

As relevant here, Con Ed’s contracts required that each general contractor would provide a foreman in charge of its specific work and that Con Edison would inspect all contractors’ work periodically to ensure compliance with contract specifications as well as to enforce general safety at the site. Con Ed’s representatives testified they monitored the work to ensure the contractors performed their work productively and safely.

 

The jury returned a verdict that decedent was exposed to asbestos, that Con E exercised supervision and control over the workers at the power plant in a negligent manner and that such negligence was a substantial cause of plaintiff’s injuries. It determined Con Ed 30% liable and awarded plaintiff $2.5 million, and $1 million on the loss of consortium of her husband.

 

The trial court granted defendant Con Ed’s post-trial motion to set aside the verdict and dismiss the Labor Law § 200 claim as plaintiff failed to adduce sufficient evidence from which the jury could reasonably infer that Con Ed exercised supervisory control over decedent’s work.

 

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

 

As this is a “means and methods” case, the owner or general contractor may only be liable if it exercised supervision or control over the work that led to the injury. Here, the majority determined the evidence at trial demonstrated that Con Ed had the authority to control the activity bringing about the injury because their specifications affirmatively required the use of hazardous asbestos-containing insulation materials, and Con Ed monitored work for compliance with those specifications. 

 

As a result, the First Department reinstated the verdict against Con Ed, and ordered a new trial on damages for loss of consortium unless plaintiff stipulates to a reduced verdict of $360,000.  Justice Sweeney’s lone dissent affirmed the trial court’s dismissal the Labor Law § 200 and common-law negligence claims against Con Ed because there was no evidence that Con Ed exercised the necessary degree of supervision or control over decedent's work as an insulation installer to subject it to liability under the statute.

 

Garcia v Church of St. Joseph of the Holy Family of the City of N.Y.

January 12, 2017

Appellate Division, First Department

                                          

Plaintiff allegedly fell as he descended from the attic on a wooden ladder permanently affixed to the wall of a church. The church’s pastor testified he guessed the ladder had been there since the church was originally built 150 years ago. As plaintiff attempted to descend the ladder, he reached for it, placing his right hand and foot on it when it moved away from him and he fell.

 

Plaintiff claimed the ladder was attached to the wall in a jerry-rigged manner, including with metal wires. The trial court denied plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim.  

 

Labor Law § 240(1) (DRA) 

 

The First Department unanimously reversed as plaintiff established a prima facie claim that the ladder shifted as he descended, thereby causing his fall and a violation of the statute. The Court rejected defendant’s affidavit claiming plaintiff told his employer he fell when attempting to descend using one hand as he carried tools/equipment in the other and missed a rung with his free hand because it did not change the fact that the ladder shifted, and failed to create triable issues as to whether his actions were the sole proximate cause of his incident.

 

PRACTICE POINT: When the ladder shifts, causing the plaintiff to fall, he will be granted Summary Judgment.  That is the end of the analysis.  Other things the plaintiff was doing become nothing other than negligence o the plaintiff, but as the shifting of the ladder means the statute was violated, then the negligence of the plaintiff can’t be the sole proximate cause of the injury producing fall.

 

 

Oliveri v City of New York

January 12, 2017

Appellate Division, First Department

                                          

Plaintiff allegedly slipped at a construction site. The trial court denied defendant ELI’s motion for summary judgment dismissing the Labor Law §§ 241(6), 200 and common-law negligence claims, finding a material question of fact as to whether, ELI, the site safety consultant employed by plaintiff’s employer, had supervisory control and authority over the work being done when plaintiff’s incident occurred such that it can be liable under the Labor Law as an agent of the owner or general contractor.

 

Labor Law § 241(6) (MAS)

 

Defendant claimed it only had general supervisory role by proffering testimony that its role was to observe and consult with the project manager and engineers with any recommendations. However, the Court noted the contract with plaintiff’s employer stated that ELI would “[t]ake necessary and timely corrective actions to eliminate all unsafe acts and/or conditions,” and “[p]erform all related tasks necessary to achieve the highest degree of safety.” The contract also stated that plaintiff’s employer “shall be solely responsible for the adequacy and safety of all construction methods, materials, equipment and the safe prosecution of the work.”

 

The First Department held the ­trial court correctly denied defendant’s motion for summary judgment dismissing the Labor Law § 241(6) claim predicated on Industrial Code (12 NYCRR) § 23-1.7(d), finding a question of material fact on the scope of ELI’s authority to direct plaintiff’s work.

 

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

 

The First Department affirmed the trial court’s decision finding a question of fact on the Labor Law § 200 and common-law negligence claims as to whether ELI had the requisite supervisory control and authority over the work being done by plaintiff.

 

 

Orofino v 388 Realty Owners, LLC

January 12, 2017

Appellate Division, First Department

                                          

Plaintiff fell allegedly as a result of a dangerous condition while working at a construction site on property owned by 388 Realty. Plaintiff’s fall related to openings made in the wall for HVAC work and that wall had been “chopped out” to enlarge the holes to accommodate bigger sheet metal sleeves. The trial court granted the summary judgment motions of Adelhardt, Mourne and Interstate Mechanical dismissing all claims and cross-claims, and 388 Realty appealed.

 

Labor Law § 241(6)Labor Law § 200 and Common-Law Negligence (VCP)

 

The Court held that even if 388 Realty could assert Labor Law claims against Adelhardt, Adelhardt cannot be held liable as a statutory agent under the Labor Law, because ADCO, who subcontracted with Adelhardt did not delegate it authority to supervise and control the injury-producing work. The undisputed proof showed Adelhardt completed all its work three days before plaintiff’s fall and turned over the work site to ADCO. Thus, any work that caused plaintiff’s fall was not with Adelhardt’s control and the trial court correctly dismissed the common-law negligence claim against Adelhardt.

 

As to defendant Mourne, the First Department held that it established that it did not create the condition that allegedly caused plaintiff’s fall as there was testimony Mourne finished building the wall ten days before plaintiff’s alleged incident and “left the work area spotless and free of debris before leaving that day, and did not return to the job site” until well-after his fall.

 

The record presents a triable issue of fact as to Interstate's negligence however. Interstate's principal's testimony that Interstate did not perform work on the ninth floor on the day of the accident was equivocal. In addition, the testimony of the various deponents showing that openings were made in the wall for HVAC installation and that the wall had been "chopped out" to enlarge the holes to accommodate bigger sheet metal sleeves raises an issue of fact whether Interstate created the condition that caused plaintiff's fall.

 

Indemnity Issues in Labor Law (SEP)

 

The First Department reinstated 388 Realy’s common-law indemnification and contribution claims against Interstate because the Court found a material issue of fact whether Interstate created the condition that caused plaintiff’s fall.

 

DeFreitas v Penta Painting & Decorating Corp.

January 17, 2017

Appellate Division, First Department

                                          

Plaintiff allegedly was injured when a plank he used to cross a gap between a roof upon which he was standing and a retaining wall “unexpectedly collapsed” when he was midway across it, causing him to fall to 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) 

 

The First Department unanimously affirmed despite discrepancies between Plaintiff’s version and those of two co-workers, because the plank gave way causing Plaintiff’s injuries, and that he was not provided with proper protection. As to defendant’s sole proximate cause argument, the Court held that even if there were appropriate safety devices on site, defendant could not present evidence that plaintiff was aware of their availability or that he was expected to use them.

 

PRACTICE POINT:   Again recall the necessary elements of the sole proximate cause defense.  There must be an available and appropriate safety device which the plaintiff either knew he was expected to use or was instructed to use but which the plaintiff, for no good reason choose not to use or to misuse.  Absent any of these elements the sole proximate cause defense fails.

 

 

Ragubir v Gibraltar Mgt. Co., Inc.

January 17, 2017

Appellate Division, First Department

 

Plaintiff allegedly sustained injuries when the roof in the bay he was working in collapsed as a result of the demolition being conducted in an adjoining bay forty feet away. The excavator owner RA Lynch, who operated the excavator, acknowledged he was grabbing at the roof, and was not expecting the roof of the adjoining bay to collapse.

 

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

 

Labor Law § 240(1) (DRA) 

 

The First Department held that although there was testimony that the object of the work was to get the entire roof on the ground as fast as possible, there was also testimony by the excavator that plaintiff was not the intended target of the demolition at the time the adjourning bay collapsed. Therefore, plaintiff was entitled to partial summary judgment on his Labor Law § 240(1) claim.

 

In addition, defendant Gibraltar Management, the property manager which had all activities related to its management and contracted with RA Lynch for the demolition. Therefore, it may be held liable as an agent of the owner under Labor Law §§ 240(1) and 241(6).

                               

PRACTICE POINT: Had the plaintiff been working with the exact portion they defendants were attempting to tear down the outcome may have been different, but here the portion of the roof that fell on the plaintiff was the portion they were tearing down at that minute the outcome may have been different but here the portion of roof which feel on the plaintiff was not supposed to have falled at that point.

 

Labor Law § 241(6) (MAS)

 

Since that part of the roof above plaintiff was not the intended target of demolition at the time of the collapsed, the First Department affirmed the trial court’s denial of defendants’ motion to dismiss the Labor Law § 241(6) predicated upon an alleged violation of Industrial Code regulation § 23-3.4.

 

 

Caminito v Douglaston Dev., LLC

January 19, 2017

Appellate Division, First Department

 

Plaintiff was walking backwards with a wheelbarrow when he allegedly tripped over a stack of metal studs located on the floor of a storage room. The trial court denied defendants’ motion for summary judgment to dismiss the Labor Law § 241(6) claim predicated upon Industrial Code (12 NYCRR) § 23-1.7(e)(2). 

 

Labor Law § 241(6) (MAS)

 

Industrial Code § 1.7(e)(2) provides, in pertinent part, that work areas “shall be kept free from accumulations of dirt and debris and from scattered tools and materials.” The First Department rejected defendants’ claim that the room where the incident occurred was a storage room and thus not a work area covered under the statute. The Court also unanimously confirmed an issue of fact exists here as to whether the studs plaintiff allegedly tripped on were scattered in his work area, potentially in violation of the regulation.

 

 

Roth v Lenox Terrace Assoc.

January 19, 2017

Appellate Division, First Department

                                          

Plaintiff allegedly was injured while diagnosing an air conditioning unit's malfunction, and replacing a component part. Plaintiff testified that the compressor contractor that malfunctioned was due to normal wear and tear, was not one that would normally wear out or be inspected. The trial court granted defendants' motion for summary judgment dismissing plaintiff’s Labor Law § 240(1) claim. 

 

Labor Law § 240(1) (DRA) 

 

The First Department unanimously reversed, finding an issue of fact on whether the work performed was routine maintenance or repair under the statute in light of plaintiff’s testimony that the entire replacement job took only twenty minutes, the compressor contractor generally lasts as long as the compressor, indicating it was not a recurring event, and that the component was not intended to have a limited life.

 

PRACTICE POINT:  The difference between a repair and routine maintenance is one that has been fought for years and will continue to be fought for many more.  If the work being done is done on a regularly scheduled basis, it is easy to prove it is routine maintenance.  When the part being replaced is one that commonly wears out, even if not on a regular basis (think light bulbs) it is routine maintenance, not a repair and thus not a labor law claim.  When equipment stops working and needs to be fixed it is a repair.  What about an air conditioner that has a power system that overheats and a solder joint fails, I would say that the connection is not planned to fail so it is a repair.  What if that powers system has an internal fuse and that needs to be replaced, I would think that was routine maintenance.  This really needs to be looked at on a case by case basis.

 

 

Ortiz v Igby Huntlaw LLC

January 26, 2017

Appellate Division, First Department

 

Plaintiff allegedly was injured when he fell from a ladder while painting in an apartment by defendant owner Igby. The general contractor Greyson’s contract with Igby specifically excluded painting the apartment as Uriu was hired to do the painting.

 

The trial court denied Greyson’s motion seeking dismissal of plaintiff’s Labor Law §§ 240(1), 241(6), 200, and common-law negligence claims, finding that the work performed by plaintiff was outside the scope of the work contracted for and the general contractor therefore had no right to control the work.

 

Labor Law § 240(1) (DRA) 

 

Where, as here, a plaintiff’s work at the time of his incident is outside the scope of what has been contracted for by the owner and the general contractor, the general contractor has no right to control the work, and therefore cannot be liable under either Labor Law §§ 240(1) or 241(6).

 

PRACTICE POINT:  Seems obvious and logical, right.  When the plaintiff is hurt doing something that you did not hire him to do, you have no authority to supervise, direct or control the work he is doing.  The basis of the labor law is that liability is being put on a party who has the control so that they will be careful to make sure the work site is safe.  Where, as here, the defendant has no such control over the plaintiff it is only logical, and dare I say fair, that the defendant not be held liable for the injury.

 

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

 

The First Department reversed and dismissed the Labor Law § 200 and common-law negligence claims as Greyson, the general contractor, had no authority to control plaintiff’s injury-producing work.

 

 

                                                                

Rutkowski v New York Convention Ctr. Dev. Corp.

January 26, 2017

Appellate Division, First Department

 

Plaintiff was removing furniture from an exhibition booth at the conclusion of a trade show when a lighting bar simultaneously being removed from the top of the booth by electricians fell and struck him in the head. The trial court granted defendants motion for summary judgment dismissing as the Labor Law §§ 240(1) and 241(6) claim predicated on Industrial Code (12 NYCRR) regulation § 23-1.8(c)(1).

 

Labor Law § 240(1) (DRA) 

 

The First Department unanimously reversed since plaintiff’s specific task at the moment his incident occurred was ancillary to and part of the larger demolition job of dismantling the booths, in which he was to participate and therefore he was engaged in a protected activity under the statute. The Court rejected defendant’s claim that the lighting bar did not require securing with an enumerated safety device because it was being carried by hand since it was an object that required securing to prevent it from dislodging or falling during the work.

 

PRACTICE POINT:  Some cases defy logic in my eyes.  Here there are several reasons that I disagree with the court.  First, for the court to determine that taking apart a display booth at a trade show is demolition and thus subject to the labor law, seems a bit of a stretch even in the first.  Second, holding that a light bar, being taken down by hand, is an object which required securing to prevent it from falling seems again like a stretch. 

 

Labor Law § 241(6) (MAS)

 

Regulation § 23-1.8(c)(1) mandates approved safety hats for persons “required to work or pass within any area where there is a danger of being struck by falling objects or materials”, and is sufficiently specific to sustain a Labor Law § 241(6) claim. Accordingly, the First Department, relying on Bornchein v Shuman, 7 AD3d 476, 478 (2d Dept 2004), unanimously reinstated the Labor Law § 241(6) claim predicated on § 23-1.8(c)(1) as defendant failed to establish prima facie entitlement to dismissal.

 

 

Pontes v F&S Contr., LLC

January 11, 2017

Appellate Division, Second Department

 

Plaintiff allegedly was injured while assembling a rolling scaffold that moved when a coworker lost his grip on a piece of plywood, causing the board to fall and strike plaintiff’s foot. The trial court granted that branch of defendants’ cross-motion for summary judgment dismissing the Labor Law § 241(6) claim.

 

Labor Law § 241(6) (MAS)

 

The Second Department held that regulation § 23-5.1(f) is not sufficiently specific to support a Labor Law § 241(6) claim. Further, defendants established regulation 5.18(e) was not violated, and that any alleged violation of regulation 5.1(h) was not a proximate cause of plaintiff’s incident.

 

Plaintiff’s claim that his coworker’s statement told him after the incident that the brakes on the scaffold were broken, was held insufficient by the Court to defeat defendants’ prima facie proof because hearsay statements “cannot, as here, be the only evidence submitted to raise a triable issue of fact.”

 

Plaintiff’s contention that defendants’ violated 5.1(b) was improperly raised for the first time on appeal and thus was not considered by the Court.

 

 

Dasilva v Nussdorf

January 18, 2017

Appellate Division, Second Department

 

Plaintiff allegedly fell from a ladder while painting a cottage on defendants’ large estate when the feet of the ladder “penetrated the ground” which was uneven, soft and filled with debris from landscaping work. The trial court denied plaintiff’s motion for partial summary judgment on his Labor Law §§ 240(1) and 241(6) claims, and granted defendant's motion for summary judgment dismissing the complaint based on the homeowners’ exemption.

 

Labor Law § 240(1) (DRA) 

 

The homeowners’ exemption under Labor Law §§ 240(1) and 241(6) applies to “owners of single and two-family houses such that liability can only be imposed where the homeowner directs or controls the work being performed” (Tomecek v Westchester Additions & Renovations, Inc., 97 AD3d 737, 738 [2d Dept 2012]).

 

Here, the First Department affirmed dismissal as defendants made a prima facie showing that they did not direct or control plaintiff’s work which was directly related to the residential use of the property, warranting the protections of the homeowners’ exemption.

 

PRACTICE POINT:  Even where you have a 16 acre estate and the work being done is on the caretakers cottage is the work is being done for residential purposes, the homeowner’s exception applies.  As a side note I have had several calls in the past month or so asking about the exception so I will try and spread the word generally.  The home owner’s exception applies only to the home owner and only when the home owner does not supervise, direct or control the means and methods of the work.  The exception does not extend to the general contractor working on the one or two family home, they face liability.  The contractor working on a single family home is usually insulated from injury to his own employees, as they can’t sue the home owner, and can’t sue his employer due to the exclusive remedy provided by comp section 11.  If there are any questions about this please feel free to call or email me at any time.

 

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

 

The Second Department affirmed, holding that the Supreme Court properly granted those branches of the defendants' motion for summary judgment dismissing the causes of action under Labor Law § 200 and common-law negligence.  Where, as here, an accident allegedly involves defects in both the premises and the equipment used at the work site, a defendant moving for summary judgment with respect to an alleged violation of Labor Law § 200 is obligated to address the proof applicable to both liability standards.  Here, the defendants submitted evidence demonstrating that they did not have the authority to supervise or control the performance of the plaintiff's work and in addition, their evidence demonstrated that they did not create the alleged dangerous conditions, or have actual or constructive notice of such conditions. With respect to the allegedly defective ladder, the defendants' submissions established that they did not own the ladder or provide the plaintiff with any of his materials or equipment. With respect to the allegedly uneven, soft ground filled with debris, the defendants demonstrated that they did not create the condition and, although they may have had general awareness that the ground was uneven and soft, such awareness was insufficient to impute notice of an unsafe condition.

 

 Keener v Cinalta Constr. Corp.

January 18, 2017

Appellate Division, Second Department

 

Plaintiff allegedly was injured when he stepped on a piece of asphalt that broke off and gave way underneath his footing. The trial court granted defendant’s summary judgment motion dismissing the Labor Law § 241(6) claim predicated upon regulation § 23-1.7(d) and (e) and the Labor Law § 200 and common-law negligence claims.

 

Labor Law § 241(6) (MAS)

 

The Second Department affirmed, holding that defendants established prima facie that regulations § 23-1.7(d) and (e) do not apply to the facts of this case because the asphalt did not constitute a “slippery condition” under 1.7(d) and plaintiff did not trip as required under 1.7(e).

 

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

 

The Second Department reversed, holding that the Supreme Court erred in granting that branch of the defendant's motion for summary judgment dismissing the cause of action alleging a violation of Labor Law § 200.  Where, as here, the plaintiff's accident arose not from the manner in which the work was performed, but rather from an allegedly dangerous condition at the work site, liability for a violation of Labor Law § 200 will be imposed if the general contractor had control over the work site and either created the dangerous condition or had actual or constructive notice of it.  The defendant failed to establish its prima facie entitlement to judgment as a matter of law and thus, the court should have denied that branch of the defendant's motion regardless of the sufficiency of the opposition papers.

 

 

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

 

 

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

 

§ 23-1.8(b)(1),  requires an approved respirator be provided by the employer  and used by the employee, which shall be maintained in good repair and means for its continued proper working condition, and the employer must all provide daily inspection and cleaning with weekly disinfecting, which is required before being used from one employee to another and shall be stored in closed containers when not in use; and is sufficiently specific.

 

Kebbeh v City of New York, 113 AD3d 512, 979 NYS2d 5 (1st Dept 2014);

Cerverizzo v City of New York, 116 AD3d 469, 983 NYS2d 515 (1st Dept 2014).

 

Kebbeh found triable issue of material fact whether π worked in confined space, which precluded SJ to ∆ as to π’s use of respirators while painting in confined space.

Cerverizzo held reg did not furnish basis for ∆s’ liability where π allegedly injured when he inhaled toxic fumes while installing brackets in empty aeration tank b/c said work not activity requiring respirator.

 

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