Labor Law Pointers

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

Volume VII, No. 12
Wednesday, October 3, 2018

 

From the Editor:

Do you have a situation?  We love situations.  If I don’t get a call with a situation every few days, I start to get jumpy and nervous.  I like solving labor law or risk transfer conundrums; it makes my day.
 
As summer begins to wind down and fall approaches, the days grow shorter and the courts get back up to speed.  It is true; I hang onto summer like a dog with a bone.  I do not want to believe that we can’t just stay at the cottage because my son has to go to school, hockey, and soccer.  I am deep in denial, as I am this time every year.  The boats are coming out of the water, the trees have that September blight where the leaves turn color and fall to the ground; all signs point to ski season being around the corner.  But I miss summer.
 
Enough whining. We have several pictures for your review; why people do these things, I can’t explain.  I had an assistant who looked at the pictures and described it as a culling of the herd.  Let’s analyze the first one: labor law claim or not?



My opinion is that it depends on the type of structure and who is doing the work.  It looks like he is installing a ceiling fan; that is likely a covered activity.  If he is replacing an existing fan, which was functional, then you could argue that it is not an alteration as it is being placed in the same location and thus there is no “significant physical change to the configuration or composition of the building or structure.”  If the prior fan was broken, it would likely be a repair, and if no fan was there before, it is clearly an alteration.  The more interesting issues are if the structure is a one- or two-family home and if the crazy ladder climber is a person “so employed” and thus a valid plaintiff.  If it is a one- or two-family home and the exclusion is sought, is the owner controlling or directing the work and thus obviating the protection of the exclusion?  Mostly however, the concept of tying a ladder to what appears to be a rather weak looking railing, and trusting that to keep you from plummeting to the floor below is one that most sane people would avoid.
 
In the next photo, we are faced with a dilemma: is the rope tied around the plaintiff (or soon to be plaintiff), actually tied to something, or is his friend simply holding it to make him feel safer.  There is no chance that the holder of the rope can stop the plaintiff from falling; but the question for all of you is this, if the person is the safety device, and he is intended to stop the plaintiff from falling, and the plaintiff does not wait for him to hold the rope as he was instructed before going onto the roof and falling, is that sole proximate cause on the plaintiff?

 

The answer to the above question is a resounding no.  Even if the steps were followed for a sole proximate cause defense, it fails.  Assume that you have an expert who opines that having the device was appropriate; it is clearly available and may even be being used properly if he had waited for the “rope holder” to show up.  In the end, even if the defendant checks every box for the sole proximate cause defense it will fail because the courts have held that a person can’t be a safety device, not to steady a ladder and not to hold the safety rope. 
 
I love this one, and really just want to know how the hell he was thinking.  They took apart a street barrier and used it as a ramp to get up to the second story?  Slid a ladder up one side and had it held by someone else.  The real question is, what is the woman thinking as she sits inside drinking her coffee?  For any number of reasons, this is not an appropriate safety device and no one is ever going to find an expert who thinks it is.


 
The ladder in this question does not appear to be set up correctly from my point of view.  It should be in the open and locked position.  The only thing missing is someone playing the piano. Some music to fall to?  I have nothing else to add to this one.


 
Here is just wondering what this guy did to have his friends leave him hanging. 



This picture makes me a bit weak in the knees.  It’s not just the fact that the plaintiff is standing on the very top of the ladder, or that the ladder looks like it is on the very edge of the building with nothing to stop it from falling off the building, or that the plaintiff has no fall protection on, or that he is stepping off the ladder onto what appears to be a light, the scenario I see in my mind is the ladder falling off the building and the plaintiff standing just on the light as it slowly tears out of the side of the building, and the ladder falling on some poor guy walking into the building.
 


Please keep in mind that we are available to assist in training; either from the ground up or a refresher, on any topics labor-law or risk-transfer related.  We love getting out and providing training, but mostly love getting to spend time with the claims professionals we work with in person.  Feel free to reach out to us at any time with questions or with your “situation.”
 
Remember that our sister publications, Coverage Pointers ([email protected]) and Premises Pointers ([email protected]) are available for the asking for the same price as Labor Law Pointers--absolutely free forever.  They are outstanding newsletters and cover their areas of law with in-depth analysis and practice pointers designed to help keep busy claims professionals up to date on changes in the law and to provide helpful tips.

 
David
 
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.

 

 

 

Gordon v City of New York
September 6, 2018
Appellate Division, First Department
 

Plaintiff was injured when he fell from a ladder while repositioning a stadium light, as instructed, when the ladder, which he and a coworker placed on a tunnel floor covered in muddy water and debris, slipped out from under him. The trial court denied plaintiff’s summary judgment motion on his Labor Law § 240(1) claim against the general contractor, MTA, and granted defendants Long Island Rail Road (LIRR) and the City’s motion seeking dismissal of the §§ 240(1) and 241(6) claims.

Labor Law § 240(1) (DRA) 
 
The First Department affirmed the trial court’s decision to dismiss this claim against defendants LIRR and the City since they established they were not subject to liability as “owners” within the purview of Labor Law §§ 240(1) and 241(6) as they were neither the owner, lessee, or occupant of the tunnel where the incident occurred and neither was a party to any contract for plaintiff’s work. In response, plaintiff failed to proffer any competent evidence to dispute allegations contained in the affidavits submitted by the City and LIRR, or that either party performed, supervised, or controlled any of plaintiff’s construction work.
 
However, the Court reversed the partial dismissal of plaintiff’s § 240(1) claim against MTA because the ladder “failed to provide proper protection for [plaintiff] to perform the elevation-related task of re-positioning the stadium light.” The Court further rejected counsel for MTA’s assertion that an issue of fact existed as to whether a platform was available to secure the ladder, because there was nothing in the record to support such a claim.
 
PRACTICE POINT:  Interesting to me in this case is that the plaintiff was really repositioning a light at the time of his fall and injury. Had the entirety of his task and reason for being there really been to reposition a light, it would not have qualified under Labor Law §240(1) as construction or even as an alteration. However, as the plaintiff was there as part of a larger project, which included the excavation of rock, the larger project qualified and thus the specific task being undertaken at the moment is covered as an activity protected under Labor Law §240(1).
 
 

Mananghaya v Bronx-Lebanon Hosp. Ctr.
September 13, 2018
Appellate Division, First Department

 
Plaintiffs’ decedent sustained fatal injuries when a chiller, weighing approximately 16,000 pounds or more, while being hoisted, slipped off the trailer and crushed decedent. At the time of the accident, decedent was installing a back-up or stand-by chiller to help the hospital maintain a certain temperature in its building.
 
The trial court denied plaintiffs’ partial summary judgment motion for liability on their Labor Law § 240(1) claim against the hospital and granted defendants’ cross-motion for summary judgment to dismiss that claim on the ground that the work decedent was performing did not constitute an “alteration” within the meaning of the statute.
 
Labor Law § 240(1) (DRA) 
The First Department reversed, finding, contrary to defendant's contention, the record showed plaintiff’s work constituted an alteration within the meaning of § 240(1) because “the work being performing was a significant change to the hospital’s air conditioning system,” which was necessary for the hospital to operate in warm weather to meet its regulatory requirements. The Court held the deinstallation and removal of the rented chiller “altered the configuration or composition of the structure by changing the way the [hospital buildings] react to … the elements.”

PRACTICE POINT:  Remember that an alteration, since the 1998 Court of Appeals Joblon case, “requires making a significant physical change to the configuration or composition of the building or structure.”  In Joblon, the plaintiff was making a small hole in a wall to pass a wire through it.  In the instant case the rented chiller was outside of the building and the court’s conclusion that the chiller constituted a significant physical change the composition of the building was that the chiller created a significant change to the hospital’s air conditioning system. Understand that there was no physical change to the building at all, merely some piping which was run into the building. While conceding that this was a major undertaking and that the chiller is a huge unit which was parked out in the street, I still feel it to be a stretch to say that it was a substantial or significant physical change to the building or structure.
 
 

Rroku v West Rac Contr. Corp.
September 27, 2018
Appellate Division, First Department

 
Plaintiff fell and was allegedly injured when the six-foot scaffold he was descending wobbled, causing him to fall to the floor. The trial court granted plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim, and denied defendants’ cross-motion for summary judgment dismissing that claim.
 
Labor Law § 240(1) (DRA) 
 
The First Department unanimously affirmed, finding that plaintiff satisfied his burden of demonstrating that defendants failed to provide adequate safety devices to prevent him from falling when the scaffold moved. The Court noted that although plaintiff was the sole witness to the incident, this fact does not preclude summary judgment in his favor where nothing in the record contradicts his account or raises an issue of fact as to his credibility.
 
PRACTICE POINT: Long gone are the days where un-witnessed accidents are automatically a question of fact.  Speculative and unsupported theories by the defendant’s expert are insufficient to create a question of fact.  Where a ladder moves causing the plaintiff to fall, the defendant is way behind the eight ball and fighting a huge uphill battle.
 
 

Johnson v Lend Lease Constr. LMB, Inc.
September 12, 2018
Appellate Division, Second Department

 
Plaintiff, a steamfitter, was working at the subject premises and allegedly fell when he attempted to step up onto a rebar grid located 18 inches above corrugated steel decking, where he had been standing. He testified at his deposition that his foot could fit through the openings, but not his entire body. The trial court granted defendant general contractor’s summary judgment motion seeking to dismiss the Labor Law §§ 240(1), 241(6), 200 and common-law negligence claims.
 
Labor Law § 240(1) (DRA) 
 
The Second Department affirmed, finding defendants established, prima facie, their entitlement to judgment as a matter of law dismissing the Labor Law § 240(1) claim. Defendants submitted evidence that although plaintiff's foot slipped through openings in the rebar grid, the openings were too small for a person's body to fall through. Therefore, the Court held defendants’ established the openings of the grid did “not present an elevation-related hazard to which the protective devices enumerated [in Labor Law § 240(1)] are designed to apply”.
 
In opposition, the Court held plaintiff failed to raise a triable issue of fact and rejected plaintiff's contention that the motion should have been denied to afford him an opportunity to obtain discovery because he did not show that further discovery might lead to relevant evidence.

PRACTICE POINT:  A moment of logical reasoning by the Second Department; if the hole is too small to allow a person to fall through it, how can a safety device designed to prevent workers from falling through a hole be applicable to the situation.  A perfectly logical decision.

Labor Law § 241(6) (MAS)
 
The Second Department also affirmed dismissal of the Labor Law § 241(6) claim, which was premised upon alleged violations of Industrial Code (12 NYCRR) regulation § 23-1.7(b)(1), (d), (e), and (f). The Court held regulation 1.7(b)(1), pertaining to “hazardous openings”, did not apply to openings that are too small for a worker to completely fall through.
 
Regulation 1.7(d) deals with slipping hazards, 1.7(e) with tripping hazards caused by materials and debris in passageways and work areas, and 1.7(f) with the use of stairways, ramps and runways. The Court also held regulations 1.7(d), (e), and (f) were likewise inapplicable to the facts of this case and plaintiff failed to raise a triable issue of fact.
 
Labor Law § 200 and Common-Law Negligence (ESB)
 
The Second Department also affirmed dismissal of plaintiff’s claims for violation of Labor Law § 200 and common-law negligence, finding defendants met their prima facie burden (i.e., they demonstrated they lacked the authority to supervise or control the injury-producing work), and plaintiff failed to raise a triable issue of fact.
 
 

Powell v Norfolk Hudson, LLC
September 12, 2018
Appellate Division, Second Department

 
Plaintiff, a construction worker, was removing equipment at 101 Norfolk Street in Manhattan, when workers constructing a building on the adjacent lot dropped a wooden form on him from several stories above. 101 Norfolk Street was owned by defendant 101 Norfolk, and the adjacent lot was owned by Norfolk Hudson, yet both were managed by Norfolk Remote.
 
Norfolk Remote, on behalf of Norfolk Hudson, entered into a contract with On the Level,  for the construction of a building at 103-105 Norfolk Street, and the addition of a third story on the adjacent building. On the Level entered into a subcontract with plaintiff's employer for the performance of certain work on the project described in the contract as “101-103-105 Norfolk.” On the day of the incident, plaintiff started performing work on the building at 103-105 Norfolk, and was then sent to the building at 101 Norfolk Street when his incident occurred. 
 
The trial court granted defendant 101 Norfolk, LLC’s summary judgment motion seeking dismissal of the Labor Law §§ 240(1), 241(6), 200, and common-law negligence claims.
 
Labor Law § 240(1) (DRA) 
 
The Second Department reversed, finding an issue of fact as to whether defendant 101 Norfolk was an “owner” for purposes of liability under the Labor Law because the evidence demonstrated that it owned the property on which plaintiff allegedly was injured and there was evidence that plaintiff was injured in the course of a construction project encompassing both 103-105 Norfolk Street and defendant 101 Norfolk’s property. The Court held that under the circumstances of this case, triable issues of fact existed as to whether 101 Norfolk contracted to have the injury-causing work performed, or had a sufficient nexus to that work, so as to support liability under Labor Law §§ 240 and 241. The Court also found triable issues of fact as to whether defendant 101 Norfolk had a duty to provide plaintiff with a safe place to work.
 
PRACTICE POINT:  Where the separate owners of the adjacent buildings, both of which were being worked on pursuant to what appears to be the same contract and by the same contractors at the least, it is not a surprise that a question of fact on the ownership issue was found.  Specifically, the question to be posed to the jury is if 101 Norfolk contracted for the injury producing work or if it had a sufficient nexus to the work.  These would be factual determination, which are left to the jury.
 
 

Opalinski v City of New York
September 19, 2018
Appellate Division, Second Department

 
Plaintiff allegedly was injured when a hand-held angle grinder he was holding spun out of control and the blade cut him. The trial court denied plaintiff’s motion for leave to renew his opposition to defendants’ motion seeking dismissal of the Labor Law § 241(6) claim, which the trial court previously granted, based upon a purported change in the law and to amend his claim to assert a violation of Industrial Code regulation § 23-1.5(c)(3), which he had not previously alleged.
 
Labor Law § 241(6) (MAS)
The Second Department affirmed denial of plaintiff’s motion to renew because there was no change in the applicable law. Although plaintiff’s motion was based upon the First Department’s holding in Becerra v Promenade Apts. Inc., 126 AD33d 557 (1st Dep't 2015), the Court noted it is contrary to the Second Department’s decision of Spence v Island Estates at Mt. Sinai II, LLC, 79 AD3d 936 (2d Dep't 2010), which holds regulation 1.5 is merely a general safety standard.

 

Uddin v A.T.A. Constr. Corp.
September 19, 2018
Appellate Division, Second Department

 
Plaintiff, a construction worker, was allegedly injured in October 2007 while performing demolition work on the roof of a condominium building. In December 2008, plaintiff sued defendants A.T.A., the general contractor for the project, and Park Slope, the alleged owner of the subject building. In June 2014, after the statute of limitations expired, plaintiff cross-moved for leave to amend his complaint to add Flan as a defendant in the action, which cross-motion was denied by the trial court.
 
Labor Law § 241(6) (MAS)
 
Plaintiff argued Park Slope and Flan were jointly operated by two brothers who had “blur[red] [the] line” between the entities such that they were united in interest for purposes of applying the relation-back doctrine. The Second Department reversed and granted plaintiff’s motion to add Flan as a defendant. The Court found the claims against Flan arose out of the same conduct, transaction, or occurrence as the claims asserted against Park Slope, and that plaintiff demonstrated, under the particular circumstances presented, Park Slope and Flan are united in interest inasmuch as the two entities, “intentionally or not, often blurred the distinction between them.”
 
The Court also held Flan had notice of this action within the applicable limitations period, inasmuch as the Flancraichs jointly operated both Park Slope and Flan, and Flan was designated in the condominium declaration to receive service of process on behalf of Park Slope, and plaintiff demonstrated that the initial failure to add Flan was not intentional, but was the result of an excusable mistake.
 
 

Campanelli v Long Is. Light. Co.
September 26, 2018
Appellate Division, Second Department

 
Plaintiff, the child of a former employee of defendant Long Island Light, sued for injuries under Labor Law § 200 allegedly sustained due to exposure to lead and other hazardous substances in utero and in the first seven months of his life. Plaintiff alleged defendants failed to provide his father with proper protection at his work to prevent him from leaving work each day in clothes saturated with hazardous materials, which he claims caused his injuries.
 
The trial court granted defendants’ CPLR 3211(a)(7) motions to dismiss the complaint on the grounds that each defendant did not owe plaintiff a duty of care.
 
Labor Law § 200 and Common-Law Negligence (ESB)
 
The Second Department affirmed dismissal of plaintiff’s claims against defendants, finding that while employers have a common-law duty to provide a safe workplace to their employees, that duty is limited to those employees only, and has not been extended to encompass individuals who were not employed at the worksite (such as plaintiff or his mother during her pregnancy). Further, although in certain instances “a landowner generally must ‘exercise reasonable are, with regard to any activities which he carrier on, for the protection of those outside of his premises,’” the Second Department declined to apply this rule (normally reserved for asbestos litigation) to the facts of this case. 
 
Finally, the Court disagreed with plaintiff’s contention that violations of OSHA regulations and Labor Law § 27-a constituted negligence per se. First, violations of OSHA regulations provide only some evidence of negligence. Moreover, neither plaintiff nor plaintiff’s mother during her pregnancy, belonged to the class of people intended to be protected by OSHA or its implementing regulations, namely, employees.
 
 

Hill v Mid Is. Steel Corp.
September 26, 2018
Appellate Division, Second Department

 
Plaintiff allegedly sustained injuries while using a telescoping lift while at work on property owned by defendants Anthony and Janine Mosono. The lift was owned by defendant MIS and although Anthony Mosono borrowed the lift from MIS, MIS claimed he did so without its permission. The trial court granted the motion of MIS for summary judgment dismissing the complaint on the grounds that MIS was not an appropriate labor law defendant and there was no evidence that an alleged defect in the lift caused plaintiff’s injuries.
 
Labor Law § 200 and Common-Law Negligence (ESB)
 
The Second Department held the trial court properly dismissed plaintiff’s claims under Labor Law § 200 as MIS established, prima facie, it was not an owner, contractor, or agent with regard to plaintiff’s work and, therefore, could not be held liable under the Labor Law. However, the Court reversed the trial court’s order dismissing plaintiff’s common-law negligence cause of action, holding MIS did not meet its prima facie burden of proving the lift was not in a defective or dangerous condition. 
 
PRACTICE POINT: The Second Department’s decision leaves open the question of why MIS did not meet its burden of proof on negligence.  It also leaves open the question of why MIS owed plaintiff a duty of care in the first instance (perhaps the issue was not raised).  In any event, this decision demonstrates, while Labor Law § 200 and common-law negligence claims normally go hand-in-hand, you can still have a negligence claim without the Labor Law.
 

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

1.  12 NYCRR § 23-1.13 – Protection in Construction, Demolition and Excavation Operations; General Provisions; Electrical hazards.

2.  Regulation § 1.13(b)(4), which (a) requires that employees working in proximity to electric power circuits be protected by de-energizing and grounding the circuits, grounding or insulating the circuits or other means, and (b) requires that employees using jackhammers, bars or hand tools in work areas where the exact locations of underground power lines are unknown be   insulated protective gloves, body aprons and protective footwear, have been deemed sufficiently specific to support a Labor Law § 241(6) claim.

3.  Adams v Owens-Corning Fiberglass Corp., 260 AD2d 877, 688 NYS2d 788 (3d Dept 1999);

Addonisio v New York, 112 AD3d 554, 978 NYS2d 131 (1st Dept 2013);

DelRosario v United Nations Federal Credit Union, 104 AD3d 515, 9661 NYS2d 389 (1st Dept 2013).

4. Adams found a question of fact whether reg was violated where   Δ failed to take adequate precautions to ensure that wires in the junction box which injured π was working properly were properly de-energized.

Addonisio held reg potentially applicable where π electrocuted when he cut with power saw into electrical cable encased on concrete conduit with excavating roadway.

DelRosario held reg sufficiently specific and applicable where π struck by live exposed electrical wire while standing on a ladder.

 

 

 

 

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
Eric S. Bernhardt

Associate Editor
Brian F. Mark
 
Associate Editor
Ashmita Roka 


Labor Law Team

 

 

David R. Adams, Team Leader
[email protected]
 

Dan D. Kohane
[email protected]                                           

Marc A. Schulz
[email protected]
           
Michael F. Perley
[email protected]

           
V. Christopher Potenza

[email protected]

Eric S. Bernhardt
[email protected]

Steven E. Peiper
[email protected]

Jennifer A. Ehman
[email protected]

Eric D. Andrew
[email protected]

Brian F. Mark
[email protected]    

Ashmita Roka
[email protected]   

Jerry Marti
[email protected]

 

 

Hurwitz & Fine, P.C.
 
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