Labor Law Pointers - Volume VI, No. 5

Labor Law Pointers

 

Volume VI, No. 5

Wednesday, March 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.  Call, text, email or come running into my office screaming and we will make your situation our situation.

 

The courts are hitting on all cylinders this month and we have a full slate of cases for your reading pleasure.  Ok, reading pleasure may be a little over the top, but it is a little but fun to delve, just once a month, into the depths of the twisted mind of a labor law junkie.  I admit it, I love this stuff.  Where else can you claim victory when you get a question of fact out of an appellate court?  My good friends in the coverage department laugh at us when we do the, admittedly awkward, “question of fact dance”.  Those fools require complete and total victory before they dance. By the way, Kohane and Peiper dancing is a sight you will not soon forget, no matter how hard you try.

 

I will keep the introductory portion short but I do have a photo I was provided which I believe demonstrates a new method of exercise, the ladder squat, coming to a Cross Fit gym near you.  Please look at the photo below and let me know if when the so to become plaintiff falls if he has a labor law case.

 

 

 

Looking at the picture I am not certain if the plaintiff is engaged in an enumerated activity.  He does not appear to be painting, cleaning, altering, constructing, pointing or demolishing anything so there may not be an overall project which qualifies.  As to a sole proximate cause defense I would certainly hope that at a deposition I could get this plaintiff to admit that he knew that he was not to climb a ladder while that ladder was held by a co-worker, on the stairs, on his shoulders, doing squats.  That said we have all seen some truly outrageous cases qualify so I guarantee nothing, though I really really like my chances here.

 

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 dancing Dan Kohane at [email protected] and he will gladly add you. You will not regret it.

 

Remember that we are available to put on training at any level of complexity you may want at your convenience.  It has seemed to work well to do a short training session during some meetings with carriers when they have all of their claims professionals together in one spot. While we can do the training via a webinar, it is much better when done in person as it allows for much more interaction and discussion of actual fact patterns.  If you are having a meeting and want a quick seminar just drop me a line and we will get it on the calendar.

 

Thanks yet again for your interest, see you again next month.

 

David

 

Description: Description: C:\Users\dra\Pictures\Adams HighC.jpg

 

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.

 

Escobar v 271 Mulberry St. Co., LLC

February 10, 2017

Appellate Division, First Department

 

Plaintiff fell, and filed his motion for partial summary judgment on his Labor Law § 240(1) claim seven days late as the mother of plaintiff’s counsel suddenly passed. The trial court denied his motion as untimely.

 

Labor Law § 240(1) (DRA) 

 

The First Department found the delay was excusable but still denied the motion on the merits. The Court held defendant had raised an issue of fact on sole proximate cause; specifically, whether plaintiff “had adequate safety devices available; that he knew both that they were available and that he was expected to use them; that he chose for no good reason not to do so; and that had he not made that choice he would not have been injured”. 

 

PRACTICE POINT:  There is never a month which passes without a case allowing me to remind everyone about the necessary elements of the sole proximate cause defense.  It is essential that these elements all be present to establish a successful defense.  The elements are that an 1) appropriate safety devise be 2) available and that the plaintiff have been 3) instructed to use the devise or knew he was expected to use the devise but that the plaintiff, 4) for no good reason chose 5) not to use the devise or misused the device causing his injury.

 

 

Rucinski v More Restoration Co. Inc.

February 10, 2017

Appellate Division, First Department

                                         

Plaintiff allegedly was struck by a falling object at defendant’s building. There were contradictory statements in the medical records about how the incident occurred. The trial court denied defendants’ motion to compel authorizations to depose the medical providers on the limited topic of statements made by plaintiff concerning how the incident occurred. 

 

Labor Law § 240(1) (DRA) 

 

The First Department unanimously affirmed because defendant was seeking depositions of plaintiff’s medical providers on issues not related to diagnosis and treatment; therefore, no HIPAA authorizations were needed.  The Court noted that defendants sought to actually question the providers regarding statements records in the medical records relating to the cause of the accident.

 

Accordingly, the HIPAA authorizations that were denied by the trial court were not needed to conduct the depositions. However, since defendants had not served or issued subpoenas, the Court was unable to determine whether the subpoenas are proper.

 

PRACTICE POINT:   A critical point in this case is that this case appears to stand for the proposition that a simple subpoena can be issued to a provider for testimony as to the statements of the plaintiff to the provider and, as the statements are not medical treatment of diagnosis, no authorization is necessary.  This could prove to be an important tool in developing a defense to labor law cases as the multiple and contradictory versions of the accident, provided by the plaintiff immediately after the accident, could prove to be critical in arguing that the cause of the fall was not a violation of the labor law.  We will continue to monitor this tool.

 

 

Ahern v NYU Langone Med. Ctr.

February 16, 2017

Appellate Division, First Department

 

Plaintiff allegedly injured his foot when the wheel of a 500 to 800-pound mini-container he was using to transport construction debris ran over his foot. Defendant Cardella provided the container used by plaintiff and others who moved them across the floor where a hoist lowered them to the street. Thirty minutes prior to the accident plaintiff reported the wheels on the container had been “messed up”.

 

The trial court granted the NYU Hospital defendants’ motions for summary judgment dismissing plaintiff's Labor Law § 241(6) claim, and denied plaintiff's cross motion for partial summary judgment on the same claim. 

 

Labor Law § 241(6) (MAS)

 

The Labor Law § 241(6) claim was based on Industrial Code (12 NYCRR) § 1.28(b), dealing with hand-propelled vehicles. The First Department affirmed dismissal against Cardella, who established it lacked the authority to direct, supervise, or control the injury-producing work.

 

However, the Court reversed as to the NYU Hospital defendants, who failed to prove the wheel was not defective because the Court held the uncontroverted testimony presented a question of fact whether the wheels were “free-running” as required by regulation 1.28(b). As a result, plaintiff’s cross-motion was also properly denied on that claim.

 

 

Gerrish v 56 Leonard LLC

February 16, 2017

Appellate Division, First Department

                                         

Plaintiff, an ironworker, sustained injuries when he allegedly tripped and fell on debris at a work site. The location of plaintiff’s work performed and accident was at a staging area/remote location from the construction site. The trial court granted defendants 56 Leonard and Lend Lease’s CPLR § 3211(a)(1) and (7) motion to dismiss the Labor Law § 241(6) claim because plaintiff’s injury-producing work fabricating “steel rebars at an off-site temporary project facility in the Bronx … for a construction project located at 56 Leonard …” did not constitute construction work..

 

Labor Law § 241(6) (MAS)

 

The First Department majority reversed because the statute does not require a construction area must be within a certain mileage of, or proximity to, the actual building site. Nor does it require the property owner and/or construction manager must have ownership of, or operate the additional off-site facility, to be afforded the statutory protections. The majority was reluctant to dismiss the claim before discovery was complete.

 

Justice Sweeny’s dissent believes the majority’s strained interpretation of the contract between Collavino and Lend Lease is not justified by the terms of the contract, the statutory scheme or the facts because plaintiff’s work at the off-site Bronx facility does not constitute construction work at the Manhattan site.

 

 

Wunderlich v Turner Constr. Co.

February 21, 2017

Appellate Division, First Department

                                         

Plaintiff allegedly was injured from a protruding bolt while installing seating platforms. It was unclear in the record whether the bolt which allegedly injured plaintiff was from the removal of the old seats or was newly installed as part of plaintiff’s work.

 

The trial court denied defendants and third-party defendant Irwin’s motion for summary judgment dismissing the third-party complaint alleging violations of Labor Law §§ 241(6), 200 and common-law negligence in addition to claims for contractual indemnification, common-law indemnification and contribution.

 

Labor Law § 241(6) (MAS)

 

The First Department affirmed denial of defendants’ motion to dismiss the Labor Law § 241(6) claim predicated upon on regulation 1.7(e)(2), dealing with tripping hazards in work areas. Plaintiff’s coworker could identify with photographs whether the protruding bolts were old or part of plaintiff’s platform work.

 

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

 

The Fist Department affirmed the denial of summary judgment to the defendant LVI and third-party defendant Irwin, holding that to the extent the bolt constituted a dangerous site condition as a result of the removal of seats, issues of fact exist as to whether it was LVI or Irwin that removed the specific seats at issue. To the extent plaintiff's injury may have resulted from the means and methods of the work, given that plaintiff gained access to the area via the risers with the newly installed bolts instead of aisle stairways, an issue of fact exists as to the extent to which Irwin controlled plaintiff's work.

 

Indemnity Issues in Labor Law (SEP)

 

Again, as it was not clear if the bolts were the product of LVI’s work, it followed that motions for common law indemnity/contribution were denied on a question of fact.

 

 

Idona v Manhattan Plaza, Inc.

February 23, 2017

Appellate Division, First Department

 

Plaintiff allegedly fell from scaffolding materials stacked atop the surface of a flatbed truck, ten feet above the ground. The trial court denied plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim.

 

Labor Law § 240(1) (DRA) 

 

Although plaintiff was wearing a safety harness while working at the elevated height, he testified he was not provided with a safety device that would have prevented his fall. The First Department agreed, finding that even if plaintiff was wearing a harness there was no place on the truck to secure the harness to prevent his fall.

 

PRACTICE POINT:  This case provides us with two points of interest.  First while the general rule is that a fall from the back of a truck is not a 240 case where, as here, the fall is actually from the material loaded on the back of the truck Summary Judgment can be awarded.  Second, where the plaintiff is not provided with a location to attach their lanyard the appropriate safety device is not thus provided to them.

 

 

Morato-Rodriguez v Riva Constr. Group, Inc.

February 23, 2017

Appellate Division, First Department

                                         

Plaintiff’s original summary judgment motion was granted by the trial court against both defendants Broadway and Admit One on the Labor Law § 240(1) claim. Admit One previously appealed from the trial court’s decision to grant plaintiff summary judgment and that motion was granted to deny plaintiff summary judgment.

 

The trial court granted Broadway’s motion to renew plaintiff’s motion for partial summary judgment, asserting that based on the First Department’s prior Order, plaintiff’s motion should be denied against. The trial court, upon granting renewal, ultimately denied the motion.

 

Labor Law § 240(1) (DRA) 

 

The First Department unanimously held the trial court properly granted the motion to renew as its prior Order “constituted a change in the law” and there is no time constraint on a filing such a motion, and plaintiff did not show any prejudice resulting from the delay. The Court also held the motion to renew was not barred by res judicata because the Broadway did not appeal the original decision. Finally, the Court held and the “law of the case” doctrine required denial of plaintiff’s motion against Broadway.

 

PRACTICE POINT:   A few important points here. First, a change in the law will allow a motion to be brought to renew an argument as an enumerated basis for a motion to renew is in fact a change in the law. Second, that a motion to renew is not bared by the passage of time as long as the non-moving party is not prejudiced by the passage of time.  That said, it would always be more prudent to bring the motion to renew promptly.

 

 

Oseguera v Lincoln Prop. LLC

February 28, 2017

Appellate Division, First Department

                                                                             

The trial court denied defendant Azimuth’s motion for summary judgment dismissing plaintiff’s Labor Law §§ 240(1), 241(6), 200 and common-law negligence claims.

 

Labor Law § 240(1) (DRA) 

 

The First Department unanimously affirmed. The Court held Azimuth prima facie established it was not an appropriate Labor Law defendant by demonstrating that it did not own the subject premises, was not the general contractor on the project, was not the agent of the owner or general contractor, and did not supervise or control decedent’s work. However, plaintiff and codefendants submitted evidence the Court held raises an issue of fact whether Azimuth played a much greater role in the accident which at the very least warranted further discovery.

 

PRACTICE POINT:  I do not like this decision very much.  The court held that the actions of the defendant which precluded awarding them Summary Judgment were “coordinating and arranging for the work that resulted in the accident”.  It has been held, time and again, that merely coordinating, scheduling and similar tasks do not constitute the required authority to control, direct of supervise the means and methods of the plaintiff’s work necessary to be considered a labor law defendant.

 

 

Messina v City of New York

February 1, 2017

Appellate Division, Second Department

 

Plaintiff allegedly sustained injuries while cutting cinder blocks when the wet saw supplied by his employer jammed and cut his hand. Plaintiff was employed by a nonparty subcontractor hired by defendant Citnalta to perform masonry work on a premises owned and operated by the defendants City of New York. The trial court granted that branch of defendants’ motions for summary judgment dismissing the Labor Law § 200 and common-law negligence claims.

 

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

 

The Second Department affirmed the dismissal of the Labor Law § 200 and common-law negligence claims against Citnalta.  Here, Citnalta established its prima facie entitlement to judgment as a matter of law by demonstrating that the subject accident was caused by the means and methods of the plaintiff's work, that the plaintiff's work was directed and controlled by his employer, and that it had no authority to exercise supervisory control over his work.  The plaintiff's evidence of Citnalta's general supervision of the project and overall compliance with safety standards was insufficient to raise a triable issue of fact in opposition.  Further, contrary to the plaintiff's contention, he failed to raise a triable issue of fact as to whether his injuries arose from a dangerous or defective premises condition.   

 

 

Aragona v State of New York

February 8, 2017

Appellate Division, Second Department

 

Defendant contracted with Modern to perform construction work as a dock builder and was injured when he allegedly tripped on a padeye on the deck of a work barge as he was carrying materials along a corridor created by lumber and construction material. The Court of Claims determined defendant was 70% liable on claimant’s Labor Law § 241(6) claim predicated upon an alleged violation of Industrial Code regulation 1.7(e)(1).

 

Labor Law § 241(6) (MAS)

 

Regulation 1.7(e)(1) provides, in relevant part, that “[a]ll passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripped.” The Second Department affirmed the trial court’s determination that defendant violated the regulation because the evidence established the two to three-foot wide corridor in which claimant tripped was created by piles of lumber and materials on each side, and was used to get from one point of the barge to another which thus constituted a “passageway” under the regulation.

  

 

Cacanoski v 35 Cedar Place Assoc., LLC

February 8, 2017

Appellate Division, Second Department

 

Plaintiff fell through a skylight of a building owned by defendant/third-party plaintiff, Cedar Place, while working in asbestos removal work pursuant to an agreement between his employer, third-party defendant Superior, and Cedar Place. Plaintiff was not wearing a harness when he fell, and it is undisputed that anchor points for harnesses had not been completed when he fell.

 

The trial court denied plaintiff’s summary judgment motion on his Labor Law § 240(1) claim, and denied Superior’s motion to dismiss the third-party contractual indemnification claim.

 

Labor Law § 240(1) (DRA) 

 

The Second Department held the owner and general contractor failed to provide the necessary safety equipment under the statute’s non-delegable duty and plaintiff established the lack of this equipment was at least a proximate cause of the fall. Defendant failed to raise an issue that Plaintiff’s conduct was the sole proximate cause of the fall and his injures, and therefore, the trial court properly granted plaintiff summary judgment on liability. 

 

PRACTICE POINT:   Without the anchor points installed the plaintiff was not provided with an adequate safety device, was injured as a result and thus was entitled to Summary Judgment.

 

Indemnity Issues in Labor Law (SEP)

 

As part of Cedar Place’s third-party action against Superior, Cedar Place sought both common law and contractual indemnification.  Superior successfully dismissed the allegations of common law indemnification as plaintiff did not sustain a “grave injury,” and thus was subject to the exclusivity provision of Workers’ Compensation Law § 11. 

With regard to the contractual indemnity claim, Superior moved for summary judgment on the basis that the contract was not in effect on the date of loss.  In denying the application, the Court noted that contractual indemnity provisions can have retroactive effect if the parties intend it at the time of the contracts formation.  Here, it was Superior’s burden to establish the contract did not apply retroactively.  Having failed to do so, it follows Superior’s motion was denied.

 

 

Gonsalves v 35 W. 54 Realty Corp.

February 8, 2017

Appellate Division, Second Department

                                         

Plaintiffs in consolidated actions were attempting to lower a power washer from a sidewalk bridge at a construction site managed by Geiger. Ropes were tied to the power washer in order to lower it to the ground. The parapet wall they rested the washer on collapsed, and plaintiffs fell. 

 

The trial court granted plaintiffs' separate motions for summary judgment on their Labor Law § 240(1) claims against the property owner, Realty, who filed third-party claims for common-law indemnification and contribution against Geiger. At trial, Geiger moved for summary judgment on the grounds that plaintiffs were special employees and it was not negligent. The trial court denied Geiger’s CPLR § 4401 motion, the jury found plaintiffs were not special employees and that Geiger was negligent.

 

Labor Law § 240(1) (DRA) 

 

The Second Department held there was no way the jury could have determined Geiger was negligent because Realty did not put on any evidence that the use of ropes was improper for lowering the washer or that other equipment would have prevented the accident. There was also no evidence plaintiffs were instructed by Geiger to place the power washer on the parapet wall.

 

As a result, the Court held the jury had to engage in impermissible speculation in order to find in Realty's favor and against Geiger on the issue of liability on the third-party claims for common-law indemnification and contribution.

 

PRACTICE POINT:  The number one cause of verdicts being overturned is due to the combination of improper charges and special verdict sheets.  Here it is apparent that the option to find that Geiger was negligent should not have been left to the jury and was, therefor, the cause of this reversal.

 

 

Levy v Baumgarten

February 8, 2017

Appellate Division, Second Department

 

Plaintiff was injured while renovating defendant's home office when a saw blade allegedly broke and became embedded in his hand while cutting a steel pipe. Defendant used his home as the physical address for his corporation, and a computer in the home office was sometimes used on behalf of the corporation. The trial court granted defendant motion for summary judgment dismissing the Labor Law §§ 241(6), 200 and common-law negligence claims.

 

Labor Law § 241(6) (MAS)

 

The Second Department affirmed dismissal based on the homeowners’ exemption because the use of defendant’s residence for commercial purposes did not automatically caused him to lose the exemption, the presence of the an office in the basement did not detract from the building’s primarily residential use, and any commercial activity was incidental thereto.

 

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

 

The Second Department affirmed the dismissal of the Labor Law § 200 cause of action, finding that the defendant did not direct or control the injured plaintiff's work. 

 

 

Abdou v Rampaul

February 15, 2017

Appellate Division, Second Department

                                         

Plaintiff allegedly was injured after falling from a scaffold while renovating defendants’ husband and wife’s residence. The trial court granted defendants’ summary judgment motion dismissing plaintiff’s Labor Law §§ 240(1), 241(6), 200 and common-law negligence claims.

 

Labor Law § 240(1) (DRA) 

 

The Second Department affirmed as to the wife but not the husband because the wife was the title owner of the single family dwelling and it was undisputed that she did not direct or control the work. The husband, however, was not the title owner and the Court found a question of fact as to how much supervision and control he had over plaintiff’s work with respect to the Labor Law §§ 240(1) and 241(6) claims.

 

PRACTICE POINT:  The homeowner’s exemption is available only to the homeowner and only when that individual does not control, direct or supervise the means and methods of the injury producing work.  Here the plaintiff testified that the husband had done exactly that and that was sufficient to establish a question of fact that only a jury may resolve. 

 

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

 

The Second Department reversed, finding that the defendant Mervyn Rampau’s submission failed to establish prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 200, and common-law negligence claims as against him.  He submitted transcripts of the plaintiff's two depositions, at which he testified that, in addition to visiting the site daily and telling the plaintiff what work to do, Mervyn provided and instructed him to use the allegedly defective scaffold and a safety belt to complete the work that led to his injury. Moreover, the plaintiff testified that his boss told him to follow Mervyn's instructions.  As for defendant Kathleen Rampaul however, she established prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 200 and common-law negligence causes of action against her on the basis that she did not have authority to supervise or control the work, and the plaintiffs failed to raise a triable issue of fact in opposition.

 

 

Davis v City of New York

February 15, 2017

Appellate Division, Second Department

                                         

Plaintiff’s leg was injured allegedly as a result of a piece of concrete that fell out of an excavator bucket. Plaintiff was removing a temporary sidewalk that had been put in place after a gas main repair had been completed so a more permanent sidewalk could be installed. The trial court granted defendants’ cross-motion to dismiss the Labor Law § 240(1) claim, and denied plaintiff’s motion for summary judgment on that claim. 

 

Labor Law § 240(1) (DRA) 

 

Plaintiff argued he was performing work in connection with the replacement of a “structure”, i.e. the gas main. The Second Department affirmed dismissal of this claim, however, because Labor Law § 240(1) applies only to “the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure”. Here, the Court held the gas main repair was already completed by a different contractor at an earlier date and “the statute does not cover an injury occurring after an enumerated activity is complete”, citing Beehner v Eckerd Corp., 3 NY3d 751 [2004]).

 

Therefore, Plaintiff’s activity was a separate and distinct phase of the overall project, removing the sidewalk, and thus did not trigger the extraordinary protections afforded under the statute.

 

PRACTICE POINT:   Let me start by reminding you all that the actual decision is only a click away, just click on the case name and you will be taken to the official decision.  In the instant case as the prior work was done and whatever work was being done was to a temporary sidewalk.  Once that is established then the work is not being done to a building or structure.  A structure is something made up of component parts.  A sidewalk is, therefore, not a structure, for the same reason a tree is not a structure.  Without the subject work being done on a structure or building, and the work here was clearly demolition, the labor law does not apply and the plaintiff is left without an appropriate defendant as he cannot sue his employer or co-worker. 

 

 

Grabowski v Board of Mgrs. of Avonova Condominium

February 15, 2017

Appellate Division, Second Department

 

Plaintiff allegedly was injured while walking on a concrete-covered area outside a building operated by defendants. As he was walking, a portion of the concrete collapsed under his foot, causing him to fall. The trial court denied defendants motion for summary judgment dismissing the Labor Law § 241(6) and common-law negligence claims.

 

Labor Law § 241(6) (MAS)

 

The Second Department held the trial court should have dismissed this claim because although the bill of particulars alleged a violation of Labor Law § 241(6), plaintiff failed to identify any specific provision of the Industrial Code that defendants allegedly violated, and did not even address this deficiency in their opposition to defendants’ motion.

 

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

 

The Second Department affirmed the denial of the defendants’ motion to dismiss the common-law negligence claims. Contrary to the defendants' contention, they failed to meet their initial burden of establishing that they lacked constructive notice of the condition in question. In support of their motion, the defendants submitted, inter alia, the deposition testimony of the plaintiff, in which he stated that for up to 10 days prior to the accident; he observed that the place where the concrete eventually collapsed had "lines . . . indicating the breaking points." Thus, by their own submissions, the defendants raised an issue of fact as to whether the allegedly dangerous condition was visible and apparent and existed for a sufficient length of time prior to the plaintiff's fall to permit them to discover and remedy it.  

 

 

Manzo v 372 Doughty Blvd. Corp.

February 15, 2017

Appellate Division, Second Department

                                         

Plaintiff's decedent allegedly fell to his death from the roof of a two-story office building owned by defendant. Decedent allegedly was asked by his now-deceased uncle to measure a window in the office building. There were no witnesses to the accident and it is unknown why decedent was on the roof.

 

The trial court granted defendant’s motion to dismiss the Labor Law §§ 240(1) and 241(6), and common-law negligence claims on the grounds that plaintiff was unable to identify what caused decedent’s death.

 

Labor Law § 240(1) (DRA) 

 

The Second Department affirmed dismissal because defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that plaintiff could not identify what caused the alleged accident. The Court noted that plaintiff could not raise a triable issue of fact, and given the multiple possible causes of decedent’s fall, any finding of negligence would be pure speculation.  

 

PRACTICE POINT:  Without some type of proof, in admissible form, that he plaintiff was engage in a protected activity, or that some type of safety device could have prevented his fatal fall, there is simply no non-speculative theory of how the plaintiff came to fall to his death.

 

 

Raia v Berkeley Coop. Towers Section II Corp.

February 15, 2017

Appellate Division, Second Department

 

Plaintiff allegedly was injured while repairing a boiler. At trial, plaintiff testified the boiler room contained two boilers, denominated boiler 1 and boiler 2, the one he worked on. Boiler 2 was shut off, while boiler 1 remained on. Plaintiff worked fifteen feet above the ground on a two-foot-wide ledge. Hot water flowed from boiler 1 into boiler 2 via pipes. Plaintiff was injured when one of his coworkers accidentally bumped into valves, which allowed hot water and steam to escape, and burned Plaintiff and he fell from the top of boiler 2 to the floor.

 

The jury returned a verdict finding Labor Law § 240(1) applied and was violated by defendant but that such failure was not a proximate cause of plaintiff’s injuries. The jury also found defendant liable under Labor Law § 200 and common-law negligence, although plaintiff was apportioned 10% fault.

 

The trial court denied defendant’s motion and granted plaintiffs’ motion for judgment as a matter of law on the Labor Law § 240(1) claim, and set aside that portion of the verdict finding plaintiff a substantial factor in causing his accident and apportioning him fault. 

 

Labor Law § 240(1) (DRA) 

 

The Second Department affirmed because the evidence at trial established that defendant failed to provide an adequate safety device to plaintiff and this failure was a proximate cause of plaintiff’s fall. Plaintiff’s coworker bumping into the valves was held not extraordinary or so attenuated from defendant’s conduct that responsibility for the injury should not reasonably be attributed to it.

 

PRACTICE POINT:  The movement towards having foreseeability as an element of labor law cases is well under way.  Here the court has again looked to see if the danger that the plaintiff needed to be protected from ”was not of such an extraordinary nature or so attenuated from the defendant's conduct that responsibility for the injury should not reasonably be attributed to it”.   That can also be spelled foreseeability.

 

 

Shaughnessy v Huntington Hosp. Assn.

February 15, 2017

Appellate Division, Second Department

 

Plaintiff, a steamfitter, allegedly was injured when he fell from a ladder while installing refrigeration piping into a ceiling as part of a renovation project in a hospital owned by defendant/third-party plaintiff Huntington. Plaintiff alleged that, in addition to the ladder failing, plastic sheeting that was covering the walls and the floor of the room in which he was working at the time of the accident contributed to the fall, since his ladder had to be set up on the plastic in order for him to work in the room.

 

The trial court granted plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim, denied defendant HVAC’s motion to dismiss the § 200 and common law negligence claims and the third-party common-law indemnification claim, and granted conditional summary judgment on its common-law indemnification claim against Axis. The trial court also granted third-party defendant Energywise’s motion to dismiss HVAC’s contractual indemnity claim.

 

Labor Law § 240(1) (DRA) 

 

The Second Department held plaintiff's own submissions demonstrated the existence of triable issues of fact as to how the accident occurred, whether the ladder was inadequately secured, and whether plaintiff's actions were the sole proximate cause of the accident. Simply proving that plaintiff fell from a ladder is not enough to impose liability as the Court held a plaintiff must demonstrate in their motion that the ladder was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial factor in causing plaintiff's injuries.

 

PRACTICE POINT:  To discover what the second was basing their decision that the plaintiff had not established a prima facia case upon required looking at the briefs and decision below.  The plaintiff had provided separate versions of how the accident occurred, either that the ladder simply shifted causing him to fall or that he leaned against the plastic hung as a temporary wall during the construction.  The second, our bravest department, is clearly moving towards holding the plaintiff’s responsible to some extent, for their actions for which they are solely responsible.  As a practical matter this underlines why it is so very important to have a thorough investigation immediately after an accident which involves a fall from a height and to obtain a statement for the plaintiff and those who spoke to him immediately after the accident to preserve the actual explanation of how the accident occurred before the explanation can be carefully tailored to comply with the labor law.

 

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

 

The Second Department affirmed the denial of HVAC’s motion to dismiss the §200 and common law negligence claims.  When an accident is alleged to involve defects in both the premises and the equipment used at the work site, a defendant moving for summary judgment with respect to causes of action alleging a violation of Labor Law § 200 is obligated to address the proof applicable to both liability standards.  Here, the plaintiff alleged that, in addition to the ladder failing, plastic sheeting that was covering the walls and the floor of the room in which he was working at the time of the accident contributed to the happening of the accident, since his ladder had to be set up on the plastic in order for him to work in the room.  HVAC failed to eliminate all triable issues of fact as to whether it had the authority to supervise and control the manner in which the plaintiff performed his work and whether it had actual or constructive notice of the alleged condition which caused the plaintiff to fall.   The evidence submitted by HVAC included the deposition testimony of its chief financial officer who testified that the supervisor who oversaw the work that the plaintiff was performing at the time of the accident worked for both HVAC and CIS and would only receive checks from CIS for work performed on behalf of either corporation.

 

Indemnity Issues in Labor Law (SEP)

With regard to HVAC’s claims of common law indemnity, the movant failed to establish that it was free of negligence (hence, the denial of its Labor Law § 200 motion).  In addition, it also failed to establish that AXIS (the party from whom indemnity was sought) was either negligent and/or actively supervised, directed or controlled the injured party’s work.  As loyal readers well know, to establish a claim for common law indemnity one must prove themselves free of negligence and the purported indemnitor at least, in part, negligent.  Failing both prongs of the test, resulted in the denial of HVAC’s claims. 

At the time of the motions, Energywise moved for summary judgment against HVAC based upon a contractual indemnity provision.  Here, however, the indemnity provision at issue provided that HVAC would indemnify Energywise for "any claims, damages, losses and expenses . . . arising out of or resulting from performance of subcontracted work to the extent caused in whole or in part by [HVAC] or anyone directly or indirectly employed by them," including CIS. As it has not been established that the injured parties damages were caused by Axis, HVAC and/or  CIS, Energywise failed to meet its burden. 

 

 

Tserpelis v Tamares Real Estate Holdings, Inc.

February 15, 2017

Appellate Division, Second Department

Plaintiff allegedly was injured while performing work on the air conditioning system in a building owned by defendants. He fell while climbing over an “I-beam” that was used to support the air conditioning system.  The trial court granted defendant’s motion for summary judgment dismissing plaintiff’s Labor Law § 240(1) claim. 

Labor Law § 240(1) (DRA) 

The Second Department affirmed because defendants established the work constituted merely routine maintenance of the air conditioning system, and therefore plaintiff was not engaged in a protected activity under Labor Law § 240(1). The Court also held plaintiff failed to raise a triable issue of fact.

PRACTICE POINT:  Repair is covered, maintenance is not.  Sounds simple but in practice it is seldom simple.  If it is an activity undertaken on a scheduled or regular basis it is general maintenance.  If something has ceased to work properly and plaintiff is injured while trying to made to work again, likely repair.  These cases are very fact specific and a complete review of the maintenance records is warranted.  I often will have a time line made of the prior repairs to see if there is a pattern that will establish routine maintenance. 

 

 

Hall v Queensbury Union Free School Dist.

February 23, 2017

Appellate Division, Third Department

Plaintiff, a plumber and pipefitter, allegedly fell while descending a staircase into the basement of the building where his employer, and third-party defendant, stored its tools. The trial court granted defendants’ motion to dismiss Plaintiff’s Labor Law §§ 241(6), 200 and common-law negligence claims.  

Labor Law § 241(6) (MAS)

Plaintiff alleged a lack of or inadequate light in violation of Industrial Code regulation 1.30, dealing with the minimum amount of illumination required at construction sites. Defendants presented evidence in support of their motion establishing the lights were on immediately after plaintiff’s accident and there was no difficulty seeing in the stairwell. Plaintiff testified the light at the top of the stairs was on and he could see the bottom of the stairs from the top but it got “darker and darker” as he descended.

The Third Department held the foregoing testimony sufficiently established the adequacy of the lighting in the stairwell. However, the Court also held plaintiff raised triable issues of fact by submitting a coworker’s affidavit that he descended the stairwell that morning and noticed “the light at the bottom of the stairwell was not working” and thus he “could not tell when [he] reached the bottom” of the stairs. The coworker also said the day before plaintiff’s incident he saw no light bulb in the fixture at the bottom of the stairs, which had been out for “several months.”

Therefore, the Court noted that although the coworker’s affidavit was contradicted by other evidence in the record, it was up to the trier of fact to make credibility determinations. The Court also rejected defendants’ assertion that Turner was not a general contractor because triable issues exist as to whether Turner had supervisory control and authority over job-site safety.

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

 

For the same reasons, the Third Department also reversed the trial court’s decision to dismiss the Labor Law § 200 and common-law negligence claims because the alleged hazardous condition was the purported lack, or inadequacy, or lighting in the stairwell where his injury occurred and plaintiff raised an issue of fact as to the adequacy of the lighting.

 

 

Jones v Nazareth Coll. of Rochester

February 3, 2017

Appellate Division, Fourth Department

 

Plaintiff was using a ladder that was folded shut and leaning against the wall when he felt a strong electric shock to his left arm and he fell off the ladder. Plaintiff testified the ladder was not defective in in any way and had he not been electrocuted he would not have fallen.  The trial court denied plaintiff's summary judgment motion on his Labor Law § 240 (1).

 

Labor Law § 240(1) (DRA) 

 

The Fourth Department affirmed finding questions of fact of whether the ladder failed to provide proper protection, and whether plaintiff should have been provided with additional safety devices. 

 

PRACTICE POINT:  Where, as here the plaintiff agrees that the ladder from which he fell was without defect, did not move or shift in any way and that the only reason he fell was because he received a shock from an electrical wire that had accidently been left energized, uncapped and exposed, contrary to all safety directives, the court appropriately held that a question of fact existed precluding the award of Summary Judgment to the plaintiff.  How can I be so sure that the court was correct, it is because they agreed with my arguments.  Just as an aside, I would not likely tell you I argued a case if I lost, I would just point out that the court made a rare mistake.

 

 

Grabar v Nichols, Long & Moore Constr. Corp.

February 10, 2017

Appellate Division, Fourth Department

 

Plaintiff allegedly fell when the trailer on which he was standing tipped. Plaintiff was on the bed of the trailer twenty inches from the ground to place fuel in a welder located on the trailer. The trial court denied that part of defendant’s cross-motion for summary judgment on plaintiff’s Labor Law § 240(1) claim. 

 

Labor Law § 240(1) (DRA) 

 

The Fourth Department reversed the trial court and granted defendant’s cross motion, finding the plaintiff’s task “did not present the kind of elevation-related risk that the statute contemplates” because of the relative elevation at which the task must be performed. The Court held plaintiff’s theory of liability did not involve the difference between the elevation level of the required work and a lower level (falling worker), nor a difference between the elevation level where plaintiff is positioned is the higher level of the materials or load being hoisted or secured (falling object).

 

PRACTICE POINT:  As mentioned in the Idona v Manhattan Plaza, Inc. case above a fall from the bed of a trailer is not generally considered to qualify as a 240(1) case as a trailer bed is not the type of extraordinary risk, or elevated work site the labor law is designed to protect against. 

 

 

 

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)(2),  entitled Air line respirators, requires  the air supply line to the respirator to have (i) a filter to remove noxious vapors, water, oil, mists, etc. from the air; (ii) a pressure regulating valve; and (iii) that the air in the respirator be from a source with no harmful contaminants.

 

In re World Trade Center Lower Manhattan Disaster Site Litigation, 54 F.Supp.3d 301 (W.D.N.Y. 2014];

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).

 

In re World Trade found issue of fact whether ∆ violated reg 1.8(b)(1) [Yes; I know a case that should have been in last month’s issue I missed if you made it this far…and even noticed] on π licensed asbestos abatement worker’s claim that reg violated.

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 a closet.

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 at treatment plant b/c Court held bracket work not activity requiring use of respirator under regs 1.26 & 2.8.

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