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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.
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