Labor Law Pointers - Volume VII, No. 10

Labor Law Pointers

Volume VII, No. 10

Wednesday, August 1, 2018

A Monthly Electronic Newsletter Addressing
New York State Labor Law
Decisions and Trends

From the Editor:

Do you have a situation? We love situations.

As you all know by now I love pictures of crazy construction sites and somewhat unsafe practices. The first picture below was not sent by a reader, or plucked off the internet by your editor, but was actually taken by yours truly as I walked into work one day this month. The plaintiff is standing in the bucket of an excavator, using a jack hammer on a piece of concrete, suspended (without any type of fall protection I would like to point out) over what was at least a 30 foot deep pit in the middle of the side walk on Main Street in Buffalo, right in front of my building. There was no way I could walk on without taking a photo. For those looking closely, yes, that is a Dolce Panepinto shirt the future plaintiff is wearing. Nice how the plaintiff picks his firm before being injured.

$Description: Description: G:\DRA\MARKETING\LABOR LAW POINTERS\2018\August 2018\in bucket.jpeg$

The complete lack of concern for safety in these images is astonishing to me. The ladder in the bucket of the excavator is not a new concept for my photos of the month, but the future plaintiff standing at the top of the ladder in his nice clean white shirt is a different take.

$Description: Description: G:\DRA\MARKETING\LABOR LAW POINTERS\2018\August 2018\Chimney.jpg$

Here the fact that it is easier to make the cut standing on the outside of the deck for a right handed carpenter clearly explains why this approach was necessary. Question, would any court find that to be a good reason to ignore the safety of the both attached and not in the process of being cut deck?

$Description: Description: G:\DRA\MARKETING\LABOR LAW POINTERS\2018\August 2018\circular saw.jpg$

Communication is key in most all endeavors, construction being one of the more important ones. Here the several yards of crushed stone being dumped on the plaintiff is going to be a falling object and it certainly looks like a §240(1) case to me.

$Description: Description: G:\DRA\MARKETING\LABOR LAW POINTERS\2018\August 2018\ditch.jpg$

Love this one, but when the frig falls on the entire delivery team it is still not going to be a labor law case as the delivery of appliances, even when done this stupidly, does not constitute a protected activity.

$Description: Description: G:\DRA\MARKETING\LABOR LAW POINTERS\2018\August 2018\frig.jpg$

We have had many photos over the years of ladders balanced on unusual objects but I like this one. Not only is the plaintiff using a folding ladder, not one of the steadiest ladders around, but it is balanced on garbage totes which have wheels on the bottom, making this an accident about to happen.

$Description: Description: G:\DRA\MARKETING\LABOR LAW POINTERS\2018\August 2018\garbage can.jpg$

So when this plaintiff falls he will assuredly try and sue the owners of both buildings. Actually that was wrong; his estate will try and sue both buildings. In the end as long as the building the base of the ladder on it is simply being used by the plaintiff as a means of gaining access to the building he is working on they are likely in the clear.

$Description: Description: G:\DRA\MARKETING\LABOR LAW POINTERS\2018\August 2018\ladder.jpg$

Generally these photos are taken on dirty construction sites but here it appears that we are in a nice clean church. If the plaintiff is simply replacing a burned out bulb, it is mere maintenance and not a repair or alteration and thus does not qualify as a §240(1) case. If it is a repair and one of the men holding the ladder drops him it would qualify and a person does not generally quality as a safety device.

$Description: Description: G:\DRA\MARKETING\LABOR LAW POINTERS\2018\August 2018\ladder2.jpg$

Last but not least I just love this photo. Notice that there is no one in the truck. How did the plaintiff manage to get himself up there? If there was someone in the truck to get him up to the sign originally, did he go for coffee? The possibilities are endless.

$Description: Description: G:\DRA\MARKETING\LABOR LAW POINTERS\2018\August 2018\sign.jpg$

Hope you are enjoying your summer; remember that we are always here to help in any situation. Please feel free to reach out to us at any time. It makes my day when I answer the phone and hear, “hey David, I have a situation.”

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.

Naupari v Murray

July 3, 2018

Appellate Division, First Department

Plaintiff allegedly was injured while descending a ladder when the ladder, and the rosin paper placed underneath it, shifted, causing him to fall at defendant Board’s condominium. Rose was the Board’s property manager and the unit was owned by the Murrays, who hired FAI as their interior designer. Sherman installed cabinets in the unit and NY Custom installed kitchen doors.

The trial court denied plaintiff’s cross-motion for summary judgment on his Labor Law §§ 240(1) and 241(6) against FAI and Rose, and granted FAI, Rose, and the Murrays’ summary judgment motions dismissing the complaint. The Court also denied Sherman’s summary judgment motion dismissing the Board, Rose, and the Murrays’ contractual indemnification claims against it, and denied NY Custom’s motion to dismiss that claim against it.

Labor Law § 240(1) (DRA)

The First Department affirmed the trial court’s denial of plaintiff’s cross-motion as to FAI because FAI was an architectural firm without supervisory authority and who did not direct or control the work or activities other than providing architectural and design services. The Court also affirmed denial against Rose because while Rose was the Board’s property manager, it also did not have authority to supervise and control plaintiff’s work.

PRACTICE POINT: The status of a contractor as a defendant in a Labor Law case under §240(1) is established by the existence of the authority to supervise, control or direct the means and methods of the plaintiff’s injury producing work or having actually supervised, controlled or directed that same work. Absent that the entity is not a valid defendant.

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

The First Department affirmed, find that the trial court properly dismissed plaintiff's common-law negligence claims as to all defendants. Plaintiff's accident arose out of the means and manner of his work, which was determined by plaintiff's employer, and defendants did not exert any supervisory control.

Indemnity Issues in Labor Law (SEP)

In reversing the trial court, the Appellate Division noted that Shearman had no involvement with plaintiff’s work. Further, the indemnity claim against Shearman was based upon a clause in the prime contract. The Shearman contract did not explicitly incorporate the prime contract’s indemnity provisions, and, as such, it was not part of the Shearman agreement. General incorporation clauses which do not identify the indemnity language at issue only incorporate “scope, quality, character and manner” of the work to be performed.”

Hong-Bao Ren v Gioia St. Marks, LLC
July 26, 2018
Appellate Division, First Department

Plaintiff, while working on a kitchen in a restaurant owned by Eight Oranges, who leased the space from the landlord Gioia, was crouching on top of a ventilator, which he secured to a ceiling beam, and was in the process of attempting to remove the ventilator by attaching to it a 60-pound derrick rig when the ventilator titled and became detached from the wall, causing plaintiff to fall.

The trial court denied plaintiff’s motion for summary judgment on his Labor Law § 240(1) against Gioia and Eight Oranges, denied Gioia’s motion to dismiss that claim and for a conditional order on its contractual indemnification claim against Eight Oranges, and denied Eight Oranges’ summary judgment motion to dismiss the complaint and indemnity claims.

Labor Law § 240(1) (DRA)

The First Department reversed as to plaintiff’s motion because he was not provided with a proper safety device in light of his testimony that it was “impossible to perform” to his task if he stood on the eight-foot ladder he was provided with. The Court held the ventilator he was standing on and disassembling when he fell was not a safety device; it was the object of the demolition project and was thus not intended to protect him from elevated-related risks.

PRACTICE POINT: Critical in the sole proximate cause defense is the final element, that the failure to use or to misuse the appropriate and provided safety device must be for no good reason. Here the plaintiff provided a reason, and in the court’s mind a good reason, for his failure to use the provided appropriate safety device, the 8 foot A frame ladder.

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

The First Department affirmed that the motion court properly found that Eight Oranges, the tenant engaged in renovations of the premises at the time of plaintiff's fall, failed to establish prima facie that the Labor Law § 200 and common law negligence claims should be dismissed as against it.

Indemnity Issues in Labor Law (SEP)

Goia was entitled to summary judgment on the basis of a clause which was triggered upon injury “occurring or arising to any person or persons or property on, in or about the demised premises.” Contrary to Eight Oranges’ argument, there was no negligence trigger in the indemnity provision.

Moreover, a finding of Labor Law 240 only denotes statutory liability. It does not establish negligence on the part of Goia. As such, the finding does not run afoul of General Obligations Law 5-322.1.

Eliassian v G.F. Constr., Inc.
July 5, 2018
Appellate Division, Second Department

Plaintiff, the owner of a single-family home, in his capacity as president of Alliance Real Estate, Inc. (Alliance), hired defendant to perform excavation work on his home. On the day of plaintiff’s accident, defendant completed phase one of the project and was off-site. Plaintiff was on site that day to inspect the work when he slipped on oil, which allegedly leaked from a defective hydraulic line of a backhoe that was brought onto the premises by defendant and used by defendant for its work. The trial court denied defendant’s summary judgment motion dismissing the Labor Law §§ 240 (1) and 241 (6) claims.

Labor Law § 240(1) (DRA)

The Second Department affirmed as plaintiff alleged he was on his property on behalf of his company, Alliance, to inspect the progress of defendant’s work, who was a subcontractor hired by Alliance to perform excavation work. Therefore, the Court held if plaintiff’s allegations are true, then he is a proper plaintiff under the statute as inspecting the work on behalf of a general contractor is a protected activity.

Although defendant claimed it was not the general contractor or agent of the owner for purposes of the Labor Law, the Court noted plaintiff alleged defendant was working alone, plaintiff was merely on-site to inspect the progress of the work, and “did not direct or control the work … and played no role in implementing safety procedures or taking safety measures” since safety measures were in the exclusive control of defendant.

Accordingly, the Court found triable issues of fact whether defendant could be liable under the Labor Law because it had control of the work site and was delegated the duty to enforce safety protocols at the time of plaintiff’s accident.

PRACTICE POINT: Bad facts make bad law they say. Here the plaintiff, inspecting the work of other contractors on his own property, slips and falls. His theory, which the court accepts is that at the time he was inspecting the work he was not the owner of the property but the contractor, and a contractor who was not doing any work at the time and not supervising, directing or controlling the injury producing work, thus making him a valid plaintiff as opposed to a valid defendant.

Vita v New York Law Sch.
July 5, 2018
Appellate Division, Second Department

Plaintiff, an employee of Pavarini, the general contractor on a construction project for defendant New York Law School, allegedly was injured after tripping over a pipe that was attached to an HVAC unit in a mechanical room/storage area. The pipe extended across the floor of the room. Plaintiff had been working in the room and walked over the pipe several times before tripping. At the time of the incident, he was carrying a heavy pallet in one hand and a box of filters in the other. As he walked across the room, his left foot became caught under the pipe and he tripped.

Pavarini hired defendant Henick to handle air conditioning on the project, and Henick subcontracted that work to Bradshaw. The trial court granted Henick’s and the school’s summary judgment motion on plaintiff’s Labor Law §§ 241(6), 200, and common-law negligence claims.

Labor Law § 241(6) (MAS)

The Second Department affirmed dismissal of this claim predicated upon a violation of Industrial Code (12 NYCRR) regulation § 23-1.7(e)(2), which requires “parts of floors, platforms and similar areas where persons work or pass” be kept free, from accumulations of dirt, debris, scattered tools, materials, and sharp projections”. The Court held 1.7(e)(2) did not apply because the pipe did not constitute dirt, debris, scattered tools, materials, or sharp projects, and does not apply where, as here, a plaintiff trips over an object that is permanent and an integral part of what was being constructed. Thus, the trial court properly dismissed the Labor Law § 241(6) claim.

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

The Second Department affirmed the dismissal of the common-law negligence and Labor Law § 200 claims as against the subcontractor defendant Henick, but reversed and re-instated these claims against defendant New York.

Henick, as a subcontractor, established, prima facie, through the deposition testimony of its owner, the plaintiff, and the general contractor, that it never had control over the work site, and the plaintiff failed to raise a triable issue of fact in opposition. However, the law school, which is the property owner, failed to make a prima facie showing of entitlement to judgment as a matter of law dismissing the Labor Law § 200 and common-law negligence causes of action asserted against it since it did not submit any evidence to show that it did not create the condition and that it lacked actual or constructive notice of the allegedly dangerous condition on its premises Irrespective of the sufficiency of the papers submitted in opposition to the law school's motion, the Supreme Court should have denied that branch of the law school's motion.

Cabrera v Arrow Steel Window Corp.
July 18, 2018
Appellate Division, Second Department

Plaintiff, an employee of non-party E & A, allegedly was injured when he fell from a ladder while performing asbestos abatement work at the District’s high school. Plaintiff’s work was part of a larger project by the District to replace windows and doors in the high school. The School District contracted with Arrow Steel, who subcontracted with E & A, to perform the asbestos abatement work. The trial court granted plaintiff's summary judgment motion on his Labor Law § 240(1) claim, and denied Arrow Steel’s cross-motion to dismiss that claim.

Labor Law § 240(1) (DRA)

The Second Department affirmed as plaintiff’s deposition demonstrated the ladder on which he was working moved for no apparent reason, causing him to fall. The Court further held that because Arrow Steel had the authority to enforce safety standards and choose subcontractors, and had the authority under its contract with E & A to exercise control over the work, even if it did not actually do so, Arrow Steel is subject to liability under Labor Law § 240(1).

PRACTICE POINT: Where a ladder shift, twists, shimmies or otherwise moves, causing the plaintiff to fall, it is going to be a labor law prima facia case unless the plaintiff set the ladder up on something stupid like in the photos in the beginning of the newsletter this and every month.

Sanchez v 3180 Riverdale Realty, LLC
July 18, 2018
Appellate Division, Second Department

Plaintiff, an employee of non-party B & B Construction, allegedly was injured while performing construction work on defendant’s premises. The trial court granted defendant’s motion for summary judgment dismissing the complaint on the grounds that defendant was an alter ego of B & B Construction such that the exclusivity defense of the Workers’ Compensation Law §§ 11 and 29(6) applies to bar plaintiff’s claims.

Labor Law § 240(1) (DRA)

The Second Department reversed and denied defendant’s motion as it failed to make a prima facie showing either that B & B Construction and defendant operated as a single integrated entity or that the company controlled the day-to-day operations of the other. Since defendant failed to satisfy its burden, the trial court should have denied the motion without considering plaintiff’s opposition.

PRACTICE POINT: The establishment of the employer of the plaintiff and another entity as alter egos is a valid and strong defense to a labor law case at is implicated the exclusive remedy defense for both entities as provided in §11 of the Comp Law. Basically, to establish status as an alter ego the entity seeking the status must demonstrate that one of the entities controls the other or that the two operate as a single integrated entity.

Zalewski v MH Residential 1, LLC
July 18, 2018
Appellate Division, Second Department

Plaintiff testified that he was injured when he fell from a ladder, but also admitted that he told his treating physicians at the hospital that he was injured when he tripped and fell on the sidewalk. The trial court granted plaintiff’s cross-motion for summary judgment on his Labor Law § 240(1) claim, and denied Enobrac’s motion to dismiss the contractual indemnity claim against it, and granted MH’s summary judgment on its contractual indemnity claim against Enobrac.

Labor Law § 240(1) (DRA)

The Second Department reversed as plaintiff’s deposition testimony raises a triable issue of fact concerning how he was injured, and although he offered an explanation as to why he gave a different account, it is not for the court on a motion for summary judgment to assess credibility.

PRACTICE POINT: Do not forget that even if the version of the accident provided to the medical provider is blatantly false, the court does not, on a motion for summary judgment, get to make a decision on the validity of the stories but needs to decide based solely on the law and not invade the province of the jury in fact determination.

Indemnity Issues in Labor Law (SEP)

MH’s motion for contractual indemnification failed when the contract upon which the motion was based was not executed until after plaintiff’s injury. While New York law will apply a contractual indemnity clause retroactively, the party seeking to enforce the benefit must establish that the parties meant for the document to apply to previous losses. Here, MH failed to provide any proof that Enobrac meant for the contract to apply retroactively.

Kusayev v Sussex Apts, Assoc., LLC
July 25, 2018
Appellate Division, Second Department

Plaintiff, a delivery truck driver, allegedly was injured while delivering building materials to an apartment building. Plaintiff’s incident occurred after he pulled a hand truck loaded chest high with boxes of tile and bags of “Thin-Set” and cement, up a single four-inch step at the entrance to the building, when he lost his balance and fell, causing materials to fall on top of him.

The trial court granted the property owner Sussex’s motion and plaintiff’s employer, Berkoff’s motion to dismiss the Labor Law §§ 240(1), 241(6), 200, and common-law negligence claims.

Labor Law § 240(1) (DRA)

The Second Department held Sussex and Berkoff established that at the time of plaintiff’s incident, he was not engaged in construction work under Labor Law § 240(1), and was not working in a construction area within the meaning of § 241(6) since the building materials were not being “readied for immediate use”, but were instead being “stockpiled for future use”.

PRACTICE POINT: This case outlines the arbitrary manner in which Labor Law cases are decided. Per the court, had they been ready to install tile and thus need the thin set for immediate use, it would have been a labor law case, but as it was being stock piled for a while it was not a labor law case.

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

The Second Department affirmed, finding that Sussex and Berkoff each established, prima facie, both that Sussex did not create or have actual or constructive notice of the alleged condition which caused the plaintiff's injury, and that it did not supervise or control the means and methods of the plaintiff's work. In opposition, the plaintiff failed to raise a triable issue of fact

Provens v Ben-Fall Dev., LLC
July 25, 2018
Appellate Division, Fourth Department

Plaintiff allegedly was injured when he fell from a roof on which he had been working at Ben-Fall’s property. Marc-Mar Homes was the construction manager, who retained Sattora, the roofing contractor, who thereafter subcontracted with plaintiff’s employer for plaintiff’s work.

The trial court denied plaintiff’s motion for partial summary judgment on his Labor Law §§ 240(1) and 241(6) claims, and denied Sattora’s motion for summary judgment on his cross-claims against Ben-Fall and Marc-Mar Homes for common-law and contractual indemnification.

Labor Law § 240(1) (DRA)

The Fourth Department reversed as to plaintiff’s because plaintiff was instructed to work on a pitched roof on which “toe boards” i.e. two-by six-inch boards nailed directly to the roof, two or three feet up from the bottom edge of the roof, had already been installed and it was undisputed that the toe boards detached from the roof while plaintiff was working. Thus, the Court held the failure of that safety device constituted a violation of the statute, and plaintiff’s alleged failure to reinstall the toe boards with additional supporting roof jacks, was nothing more than contributory negligence, which is irrelevant under this statute.

PRACTICE POINT: Where, as here, there is a failure of one safety device (here the toe boards) and there was another safety devise that the plaintiff was directed to use, the failure to use the second device cannot be the sole proximate cause of the injury producing accident as the failure of the other safety devise must be a proximate cause of the injury and thus no other cause can be the sole proximate cause.

Labor Law § 241(6) (MAS)

The Fourth Department reversed the trial court’s dismissal of this claim on the ground that plaintiffs “failed to establish with any specificity which section of the Industrial Code [d]efendants allegedly violated” because Sattora did not raise that contention on his motion nor established his prima facie entitlement to dismissal of that claim on any ground. Therefore, the Court held the burden never shifted to plaintiffs to address their regulatory violations, but if they did, the Court noted plaintiffs’ pleadings contain specified regulations that were allegedly violated.

Indemnity Issues in Labor Law (SEP)

Ben-Fall established itself free from negligence, and on this basis sought common law indemnification from Sattora. Ben-Fall’s motion, however, failed to establish the second prong of a common law indemnity analysis. In addition to proving oneself free of negligence, the movant must also establish negligence on the party against whom indemnity is sought. Where, as here, Sattora was determined to have been free of negligence, it follows that Ben-Fall’s motion was doomed.

Sattora also successfully fended off Ben-Fall’s motion for contractual indemnification. Initially, the Court noted the long-standing rule that indemnity provisions are strictly construed. Here, Sattora agreed to indemnify Ben-Fall for the “Work” as identified in an Addendum to the contract. The Addendum, however, limited Sattora’s obligation to work for which a written agreement had been executed. Here, the work in question was not subject to a written contract or record. As such, the indemnity clause, as modified by the Addendum, was not applicable.

Rapalo v. MJRB Kings Highway Realty, LLC
July 25, 2018
Appellate Division, Second Department

Plaintiff allegedly was injured when a plank on a scaffold he was erecting broke, causing him to fall 30 feet. The trial court denied plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) against defendant.

Labor Law § 240(1) (DRA)

The Second Department held plaintiff’s evidence that he was not provided with necessary protection from the gravity-related risk of his construction work, and that the absence of the necessary protection was a proximate cause of his injuries. The Court rejected defendant’s sole proximate cause argument because there was no evidence plaintiff was informed as to where safety harnesses were kept and that he was instructed in their use. The Court also rejected defendant’s argument that plaintiff was the sole proximate cause of his incident because the scaffold from which he fell was one which he himself was construction.

PRACTICE POINT: Once again, to establish a sole proximate cause defense the elements are that an appropriate safety device must the available, that the plaintiff must have been instructed to use the safety device or must know that he was expected to use it, the plaintiff must misuse or fail to use the available and appropriate safety device and that failure must be for no good reason. Remember that all elements must be there for the defense to work.

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

12 NYCRR § 23-1.13 – Protection in Construction, Demolition and Excavation Operations; General Provisions; Electrical hazards.

Regulation § 1.13(a), provides specific guidelines to protect workers against electrocution, and is sufficiently specific to support a Labor Law § 241(6) claim.

Rice v City of Cortland, 262 AD2d 770, 691 NYS2d 616 (3d Dept 1999);

Greenough v Niagara Mohawk Power Corp., 13 AD3d 1160, 787 NYS2d 762 (4th Dept 2004);

Vanname v Rochester Gas & Elec., Inc., 111 AD3d 1331, 974 NYS2d 714 (4th Dept 2013).

Rice held Δ not entitled to summary judgment dismissing § 241(6) claim b/c reg. is sufficiently specific and applied to π’s accident since he sustained electrical burns.

Greenough held reg. did not apply to π for injury caused by cable while hanging it, when cable struck him in chest b/c reg. was subject to jurisdiction of the Public Service Commission.

Vanname held reg., although specific, did not apply to utility’s alleged negligence in marking location of underground electric line that was later struck by excavator b/c utility was subject to jurisdiction of Public Service Commission.

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

Labor Law Pointers

Editor
David R. Adams

Associate Editor
V. Christopher Potenza

Associate Editor
Steven E. Peiper

Associate Editor
Marc A. Schulz

Associate Editor
Eric D. Andrew

Associate Editor
Howard B. Altman

Associate Editor
Brian F. Mark

Associate Editor

Ashmita Roka

Labor Law Team