Labor Law Pointers

 

Volume VII, No. 4

Wednesday, February 7, 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.  Give us a call and we will make your situation our situation and assist you in the analysis of the situation and help to devise a plan.  As a great many of you are well aware it truly makes my day when someone calls or emails with a particularly twisted fact pattern that we can go through together and figure out the best course of action.

 

Welcome to the February Edition of Labor Law Pointers.  I have just returned from a week of vacation and usually do so with photographs taken of unsafe conditions wherever I may have traveled. This year we went to Utah skiing for a week and it seems there that winter vacation offer fewer construction sites and thus I unfortunately have no photographs taken of future plaintiffs. 

 

As we start thinking of spring I always encourage our subscribers to let us know if we can assist with any training. We offer seminars, both in person and as a webinar, on any and all topics labor law and risk transfer related. Feel free to reach out to us and we will set up a time convenient for all. We offer this option, as always, free of charge.

 

I also want to take this opportunity to remind our readers that we have two other excellent publications of interest to most of you, Dan Kohane’s Coverage Pointers and Jody Briandi’s Premises Pointers.  Feel free to reach out to me or either of them and we will get you on the distribution list, just click on the hyperlink and it creates an email to the names person.  As a reminder if you click on any case name in the edition you will be taken to the official published decision.

 

I do have three photographs for you this month demonstrating situations which seem likely to involve first responders in a very short period of time. I usually try and dream up some fact pattern to help us work our way through the photographs so for the photograph immediately below and want you to assume that the man temporarily on the ladder is attempting to connect cable service to someone’s apartment. That to do so he is decided the best thing to do is to lean the letter to its side so that he could reach the location on the wire where he needs to make his connection and thus save some time. Note that he was instructed that he must always have his ladder tied off to the cable and he has done so. At his deposition he testified that while he was never specifically instructed not to slide the letter to the side on the cable until it was over far enough for him to reach where he needed to make his connection he was completely aware of that precaution because it was common sense. When this plaintiff does fall will there be a valid sole proximate cause defense.

 

 

 

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In my opinion the sole proximate cause defense would be viable as the standard is that the plaintiff must be instructed to use a safety device which he then misuses or fails to use for no good reason. In this example the plaintiff was instructed to use a ladder and to tie it off, both of which he did. While he was not instructed not to slide it to the side in the manner depicted in the photograph he was aware that he was not to do that and that is sufficient to fulfill that element of the sole proximate cause defense. The fact that he was doing it to save time is not a sufficient reason to ignore the safety precautions he had both been given and was aware of.

 

This next photograph defies explanation, and try as I might I could not come up a fact pattern which would do it justice. Suffice it to say I simply want to walk up to him and say “hey Joe, your pain can is untied.”

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In this third photograph I would like you to assume that the plaintiff has placed the ladder on top of the temporary steps in order to reach the top of the hopper to see if it was sufficiently full of material in this manufacturing plant was never told not to put the letter on top of the stairs and when asked about it at the deposition said he thought it was a great idea right up until the instant the letter slipped off the stairs and he fell 18 feet. Plaintiff was working at the time of this incident in this manufacturing facility operating the machine which required the material in this hopper. The question therefore is does he have a labor law claim.

 

 

 

The answer to the question above is no.  While the plaintiff is a person who is employed he is not clearly engaged in any enumerated activity. You will recall that the enumerated activities include erection, demolition, repair, alteration, painting, cleaning or pointing of a building or structure. While the hopper, being made of component parts would qualify as a structure work being undertaken by the plaintiff of working any manufacturing facility does not meet any of the criteria of the statute and thus the labor law does not apply.

 

We hope you enjoy this month’s Edition, please feel free to share it with anyone you think may enjoy it. 

 

David

 

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David R. Adams
Hurwitz & Fine, P.C.

424 Main Street

Suite 1300 Liberty Building
Buffalo, New York 14202
Phone:  716.849.8900
Direct:  716.849.8916

Fax:  716.855.0874

Cell:  716.553.6901
Email:  [email protected]
H&F Website:  www.hurwitzfine.com

Labor Law Pointers is published the first Wednesday of each month.  If you know of others who may wish to subscribe to this free publication, please feel free to forward it.  If you wish to subscribe or unsubscribe, please send an e-mail to [email protected] or call the Editor/Labor Law Team Leader David R. Adams directly at (716) 849-8916.

 

Gonzalez v Paramount Group, Inc.

January 2, 2018

Appellate Division, First Department

 

Plaintiff allegedly was injured when, while making an opening in a concrete wall for HVAC ductwork to be installed, cinderblocks above the opening fell and struck him. The trial court granted plaintiffs' motion for partial summary judgment on his Labor Law § 240(1) claim.

 

Labor Law § 240(1) (DRA) 

 

The First Department unanimously affirmed, finding the cinderblocks above the opening that fell were "falling objects" under Labor Law § 240(1) that required to be secured for the purposes of the project. Allianz failed to raise a triable issue of fact warranting denial of plaintiffs' motion for partial summary judgment since the experts did not differ as to whether the safety device provided was adequate, but rather whether a safety device was required at all. Because it was uncontroverted that no safety devices were provided, the Court held it would be error to submit the conflicting expert opinion as to what safety devices, if any, should have been employed.

 

PRACTICE POINT:  An important but oft neglected point is made here by the First Department.  There is a basic difference in whether the expert testimony has to do with the sufficiency of a safety device or the necessity for a safety device. Where the issue has to do with the sufficiency of a safety device differing expert opinions will almost inevitably lead to a question of fact and a battle of the experts at trial. Where there is an expert opinion that a safety device was not necessary or customary for the type of task being performed it is, in general, insufficient to prevent plaintiff from obtaining summary judgment, as was the case here.

 

 

Cross v Noble Ellenburg Windpark, LLC

January 9, 2018

Appellate Division, First Department

 

Plaintiff was attaching lifting lugs to a wind turbine base tower so it could be hoisted off its trailer and onto a concrete foundation when he fell from the trailer allegedly due to a chain catching his foot. The trial court denied the Noble defendants' motion for summary judgment dismissing the Labor Law § 240(1) claim and sua sponte awarded plaintiff summary judgment on that claim. The trial court also dismissed plaintiff's Labor Law § 241(6) claim.

 

Labor Law § 240(1) (DRA) 

The First Department unanimously reversed the trial court’s decision to award plaintiff summary judgment because although the Court held plaintiff was engaged in an enumerated activity under § 240(1), questions of fact exist whether plaintiff was the sole proximate cause of his accident, citing to Cherry v Time Warner, Inc., 66 AD3d 233 (1st Dept 2009). 

PRACTICE POINT: This case provides us with our monthly opportunity to outline the necessary elements of a sole proximate cause defense to New York State Labor Law § 240(1), claim.  In order to establish a sole proximate cause defense all five of these elements must be present. First there must be an appropriate safety device which is, second, available for the plaintiff to utilize. Third the plaintiff must have been instructed to use that safety device or have known that he was expected to use that safety device. Fourth the plaintiff must fail to use the available and appropriate safety device or misuse that safety device. Fifth the failure to use or misuse of the safety device must be for no good reason. If any of these elements are not present the sole proximate cause defense will not be viable.

 

Labor Law § 241(6) (MAS)

The First Department unanimously affirmed dismissal of the Labor Law § 241(6) claim predicated upon alleged violations of Industrial Code regulations (12 NYCRR) § 23-1.7(d), 1.7(e)(1) and 1.21(c). As plaintiff fell due to a chain catching his foot and not due to a slippery condition or foreign substance, regulation 1.7(d) was held inapplicable. As plaintiff fell from a tractor trailer and not in a passageway, 1.7(e)(1) also did not apply to the facts of this case. The Court also held that the metal bars welded to the trailer’s body for use as a ladder or stairway to the trailer’s top were not a “single ladder” subject to Industrial Code regulation 1.21(c).

 

Serrano v TED Gen. Contr.

January 9, 2018

Appellate Division, First Department

 

Plaintiff was injured when, during the course of moving sheetrock into a building, he stood on top of a sidewalk shed that broke beneath him, causing him to fall to the sidewalk below. The trial court denied plaintiff’s motion for partial summary judgment under Labor Law § 240(1). 

 

Labor Law § 240(1) (DRA) 

 

The First Department held plaintiff was entitled to summary judgment because although no witness other than plaintiff testified as to how his accident occurred, this does not bar summary judgment in his favor, “where nothing in the record contradicts his version of the occurrence or raises an issue as to his credibility”. The Court held defendant’s expert report to be purely speculative as it was not based on an examination of the sidewalk shed at the time of the accident. 

 

The Court held TED was correctly found to be the general contractor given evidence that clearly established it had authority to control the work and plaintiff was a protected worker because he was making deliveries of construction materials to the worksite during an ongoing construction project, relying on Sorowik v Leardon Boiler Works, Inc., 129 AD3d 471 (1st Dept 2015).

 

PRACTICE POINT: Long gone are the days when an un-witnessed accident was grounds for a question of fact on a summary judgment motion in a labor law case.  Where there is no proof admissible form that the accident did not occur as described by the plaintiff the plaintiff may create a prima facie case completely out of his own testimony. In addition, the court reminds us of the standard necessary to establish a contractor as an appropriate labor law defendant, that being that the defendant had the authority to supervise direct or control the means and methods of the work being undertaken by the plaintiff at the time of his injury.

 

 

Casalini v Alexander Wolf & Son

January 16, 2018

Appellate Division, First Department

 

Plaintiff allegedly was injured at work on the renovation of a strawberry store when he slipped and fell on a pile of debris that he maintains was either created or left unremedied by defendant Wolf. The trial court denied the Owner Entities’ motion for summary judgment on their cross-claim against Wolf for common-law indemnity finding that they “failed to show that … Wolf was negligent in failing to remove the debris that allegedly caused [plaintiff’s] accident …[, and] there [was] no evidence in the record that [Wolf] had notice of, or created, the pile of debris”.

 

In a separate order, as relevant here the trial court denied plaintiff’s cross-motion to reargue the prior order denying the Owner Entitles common-law indemnity against Wolf. Four year later, the trial court, upon defendants’ motion in limine, dismissed the entire action although no defendant moved to dismiss the Labor Law § 200 or common-law negligence claims, finding the motion court’s prior order held Wolf “(1) did not have sufficient notice of; and (2) did not cause or create the debris condition that resulted in plaintiff[‘s] … accident” and dismissed the action.

 

Labor Law § 241(6) (MAS)

 

The First Department reversed the trial court’s bench decision on defendants’ motion in limine because, as defendants’ acknowledge in their brief, it was one for summary judgment and thus was untimely as it was brought more than 120 days from the filing of the note of issue under CPLR § 3212(a). To the extent the motion in limine was brought under CPLR § 4401, such a motion can only be made after the close of plaintiff’s case. Here, plaintiffs were not given an opportunity to make an evidentiary showing before dismissal was granted. Thus, defendants’ motion should not have been granted.

 

Dirschneider v Rolex Realty Co. LLC

January 16, 2018

Appellate Division, First Department

 

Plaintiff, while working on a renovation project, fell and sustained injuries while helping to transport a 600-pound, 14-foot-long steel I-beam down a staircase. PWI was the general contractor for the project; St. John was the lessee of the premises for which the work was being performed; and Rolex was the out-of-possession landlord of the premises.

 

The trial court granted Rolex, PWI and St. John’s respective motions for summary judgment dismissing plaintiff’s Labor Law §§ 240(1), 200 and common-law negligence claims, and denied plaintiff’s cross-motion for partial summary judgment on his Labor Law § 240(1) claim.

 

Labor Law § 240(1) (DRA) 

The First Department held defendants were not entitled to summary judgment and that plaintiff was entitled to summary judgment because the record established plaintiff and his coworker were not provided with safety devices sufficient to guard against moving an extremely heavy object down a staircase, leading to the workers’ loss of control over the object’s descent and plaintiff’s injuries, citing Runner v New York Stock., Inc., 13 NY3d 599 (2009).

PRACTICE POINT:  At first blush this case seems to be analogous to the Runner case. However upon further reflection I have to say that I think that the cases differ and I do not necessarily agree with the court’s decision here. In the Runner case the spool of wire being lowered down the stairs was tied to a rope. The method of lowering that down the stairs did not have an adequate safety device to prevent of loss of control of the item being lowered as the plaintiff and his coworkers had merely wrapped a rope around a piece of pipe laid across the doorjamb. In this case the plaintiff and his coworkers were carrying and I-beam which weighed in excess of 600 pounds down the steps.  Had plaintiff and his coworker’s been carrying this across a level floor would the court have found that to be a violation of the labor law? With the court of found it to be a violation of the labor law if while caring it on level ground they simply dropped it on his foot? It seems to me that dropping an object that you are carrying and injuring yourself with it is not the type of risk the labor law was enacted to protect workers from.

 

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

 

The First Department reversed, finding that the Labor Law § 200 and common-law negligence claims were incorrectly dismissed as against PWI and St. John. To the extent plaintiff's claim is based on allegations that his fall was due to the defective condition of the premises (including the presence of debris on the staircase, inadequate lighting, and the lack of a handrail), defendants can be held liable for plaintiff's injuries only if they created or had notice of the dangerous conditions on the premises. Even assuming that PWI and St. John established a prima facie entitlement to summary judgment on these claims, plaintiff raised an issue of fact through his testimony that there was debris in the form of chopped concrete, pieces of wire, and trim studs on the steps, that there was no handrail, and that the lighting was dim. Further, the witness who testified that he recalled seeing a temporary handrail being installed could not recall when the handrail was installed.

 

The First Department also found however that the Labor Law § 200 and common-law negligence claims should be dismissed as against Rolex. The record demonstrates that Rolex, an out-of-possession landlord with a right of re-entry to maintain and repair, was not involved with the project and was not on site and thus that it had no actual notice of the dangerous conditions. The record demonstrates further that Rolex cannot be held liable under a theory of constructive notice because the dangerous conditions did not constitute significant structural or design defects that violated specific safety statutes.

 

Gutierrez v Harco Consultants Corp.

January 16, 2018

Appellate Division, First Department

 

Plaintiff allegedly was injured after he was struck with a piece of rebar when he was standing on footing rebar nine feet above the ground and tying up 18-foot long, 170-pound pieces of rebar that his coworkers were passing him from the ground. Plaintiff testified that as his coworkers passed him a piece of rebar, they let it go before he was ready to grab it, causing it to fall and hit him in the head which made him lose his balance and fall onto the footing rebar upon which he was standing and sustain injuries. The trial court granted plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim, and denied defendants’ motion to dismiss that claim.

 

Labor Law § 240(1) (DRA) 

 

The First Department deemed plaintiff’s testimony sufficient to establish he was exposed to elevation-related hazards because assuming that the piece of rebar that allegedly struck plaintiff weighed what defendants claimed it weighed, it still presented an elevation-related risk even if it may have traveled only a short distance before striking plaintiff, relying on Marreo v 2075 Holding Co., LLC, 106 AD3d 408, 409 (1st Dept 2013) and Cardenas v One State St., LLC, 68 AD3d 436, 437 (1st Dept 2009).

 

The Court rejected defendants’ contention that the rebar being passed to plaintiff did not require an enumerated safety device because it was carried by hand, citing Rutkowski v New York Convention Ctr. Dev. Corp., 146 AD3d 686 (1st Dept 2017). However, the Court held plaintiff was not entitled to summary judgment because his medical treatment records created an issue of fact whether his injury was incurred in the manner described in his testimony.

 

PRACTICE POINT:  when a heavy piece of rebar is dropped onto the plaintiff the court is going to find a violation of the labor law holding that the rebar is an object which should have been secured. The court’s reliance on the Rutkowski case however might be distinguishable. As you will recall in Rutkowski two workers were passing a lightbar from one to another when they dropped it on the plaintiff a level below them. In the instant case a piece of rebuy was being passed directly to the plaintiff and it simply did not make it from one hand to the other. The court finds these differing fact patterns to arrive at the same conclusion, that the object needed to be secured. The second issue here is why the court found a question of fact and what lesson we can learn from that. The plaintiff’s medical records had a different description of the manner in which the injury occurred. This is why it is always critical to carefully review the plaintiff’s medical records in search of descriptions of the manner in which the accident occurred and not merely to get a better understanding of the injuries sustained.

 

 

Wiscovitch v Lend Lease (U.S.) Constr. LMB Inc.

January 18, 2018

Appellate Division, First Department

           

Plaintiff allegedly was injured when disassembling a safety protection over an opening in the construction floor made for an elevator shaft. He was squatting down, removing the planks from the opening and when he pulled one of the planks toward him to remove it, his left foot slipped on an oily substance on the floor causing his leg to kick out from under him. The far end of the plank then went down into the opening, causing the end of the plank he was holding to come up and hit him on the side of the neck.

 

He also was dragged toward the opening with the plank, and pulled into one of the safety cables around the opening which stopped him from falling completely into the opening. The trial court denied defendants' summary judgment motion dismissing plaintiff's Labor Law § 240(1) claim.

 

Labor Law § 240(1) (DRA) 

 

The First Department unanimously affirmed denial of defendants’ motion, finding that the cribbing and planking together constituted a safety device designed to protect the workers on the project from falling into the opening, and it was undisputed that the cribbing was not secured at the time of plaintiff's accident, which allowed the plank plaintiff was holding to fall into the opening, dragging plaintiff toward the opening, and causing his injuries.

 

The Court rejected defendants claim that they could not be held liable under Labor Law § 240(1), on the ground that plaintiff's accident was not caused by the inadequacy of a safety device but rather by slipping on an oily substance, because the court found that even if the oily substance on the floor was a proximate cause of plaintiff's accident, “[t]here may be more than one proximate cause of a workplace accident” and summary judgment was not appropriate here.

 

PRACTICE POINT:  I’m having a hard time agreeing with the first Department this month. The plaintiff was in the process of removing a plank and that plank fell into the hole for the elevator shaft, which the plaintiff knew was there, and in so doing the near and rose up and apparently struck him in the neck. He was then dragged towards the whole and the remainder of this safety device, that being the cables surrounding the opening did exactly what they were designed to do and prevented him from falling into the opening. The court held that the fact the plank he was removing was not secured to the floor is apparently a defect in that safety device. However the plaintiff would have needed to have removed anything affixing the safety device to the floor in order to remove the plank, and the outcome would have been the exact same. 

 

 

Gericitano v Brookfield Props. OLP Co. LLC

January 25, 2018

Appellate Division, First Department

 

Plaintiff allegedly was injured when a corner of an electrical transformer weighing hundreds of pounds and suspended from a ceiling shifted downward and struck him on the head as he was standing on a ladder working on it. The trial court granted plaintiff's motion for partial summary judgment as to liability on his Labor Law § 240(1) claim.

 

Labor Law § 240(1) (DRA) 

 

The First Department unanimously affirmed that plaintiff established prima facie entitlement to the protections of the statute by submitting evidence that he was performing an enumerated task and that he had not been provided with any adequate safety devices. The Court rejected defendants sole proximate cause argument as plaintiff’s coworker testified there were no readily available safety devices to assist him and plaintiff in his task, and it was unknown whether plaintiff was standing close enough to his foreman to have heard specific instructions about using wooden delivery pallets to prop up the transformer at the corner being worked on.

 

PRACTICE POINT:  So here we have a failure in the sole proximate cause defense on what I consider to be the first and third elements. It is crucial that the plaintiff have been instructed to utilize an appropriate safety device to establish that defense.  Here we have evidence that some of the workers were provided instructions to put appellate under the corner of the transformer before working on it however there is no evidence that that instruction was given specifically to the plaintiff. Additionally, there is no expert providing an opinion that the safety device, that being a pallet under the corner of the transformer, was in fact an appropriate safety device. You will recall that failure to establish any of the five elements is fatal to the sole proximate cause defense.

 

 

Luciano v New York City Hous. Auth.

January 25, 2018

Appellate Division, First Department

 

Plaintiff testified that he slipped on water on the floor of the stairwell he was working on. The trial court granted plaintiff’s motion for partial summary judgment on his Labor Law § 241(6) predicated upon a violation of Industrial Code regulation 1.7(d). 

 

Labor Law § 241(6) (MAS)

 

The First Department unanimously modified the trial court’s decision to the extent of directing a trial on the issue of comparative negligence, finding issues of fact as to plaintiff’s negligence in light of his testimony that as he entered the stairwell while looking up and attempted to descend the staircase without looking at the stairs or the landing in front of him.

 

Bradley v HWA 1290 III LLC

January 30, 2018

Appellate Division, First Department

 

Plaintiff’s decedent, an experienced elevator maintenance mechanic, was electrocuted while working in an elevator machine room of a building owned by defendants. Although decedent was working alone when he died and thus the exact cause of the accident is unknown, it is undisputed he died as a result of being electrocuted when his right arm came into contact with live transformers in an electrical cabinet.

 

The trial court denied defendants’ motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims, permitting the inadequate lighting claim and the lack of a cover over the transformers as defendants failed to demonstrate the uncovered transformers and the lighting did not create dangerous conditions that was readily observable to defendants.

 

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

In a rather lengthy and detailed opinion, the First Department reversed, finding that the motion court should have granted defendants' motion to dismiss the claims related to inadequate lighting and the lack of a cover over the transformers.  

 

With regard to the claimed inadequate lighting in the motor room, plaintiff alleged that a factual issue exists because the decedent was using a flashlight at the time of death given that a flashlight was found near his body. Further, plaintiffs rely on the testimony of Juan Melendez, a Schindler employee who, at one point in time prior to the accident, worked as decedent's helper and testified that the fluorescent lighting in the ninth floor motor room “wasn't that good at all.” In addition, Dennis Olson, plaintiffs' certified elevator inspector expert, stated that poor lighting conditions would have created a safety hazard for decedent by impairing his ability to see his work area—including the uncovered transformers.  The First Department found that Melendez's testimony is vague and conclusory and fails to raise a factual issue as to whether the lighting in the motor room was up to code.   Vague testimony that the lighting is poor or dark is insufficient to create an inference that the amount of lighting fell below a specific statutory standard.  There was no evidence that the lighting in the motor room was not code compliant. This failure is fatal to plaintiffs' claim given the evidence from the post-accident investigation that the lighting in the motor room was up to code.  Accordingly, defendants' motion for summary judgment dismissing the claims based on inadequate lighting should be granted.

 

As for the claims are based on the alleged dangerous condition of a lack of a cover over the transformers on which the decedent was electrocuted, Melendez testified that there was a threat that a person could touch one of the transformers and be electrocuted because none of the transformers had covers. Thus, the issue to be resolved is whether defendants demonstrated that they did not cause or create, or have actual or constructive notice of, the allegedly dangerous condition. There is no dispute that these defendants did not design or manufacture the elevator control cabinet, or any of its electrical components, including the transformers.  As to whether defendants had notice of the alleged dangerous condition, the building's property manager testified that he was never informed that there was any problem with the elevator control cabinet or that the transformers lacked a proper cover, despite regular inspections by Defendant United Elevator Consultants Service.   Furthermore, the President of United testified that a cover was not required on the transformers because the transformers were in an enclosed cabinet and the cabinet itself operates as the cover for the transformer. Additionally, defendants' licensed professional engineer expert, inspected the accident site, and concluded that the controller met all the applicable codes and standards, that it was safe, and that further barriers separating the transformers from the other components were not required under any applicable standards back in 1997 when the subject control cabinet was designed and manufactured.  Plaintiffs failed to raise an issue of fact concerning actual or constructive notice. They did not proffer any evidence that any complaints were made to defendants by the decedent, Melendez, or anyone else that the lack of covers over the transformers was dangerous, or that defendants should have known that the absence of such a cover was dangerous and was in violation of a statute, ordinance or regulation. Plaintiff’s expert’s proposition that the lack of a cover over the transformer violated American National Standards Institute (ANSI) and is evidence that defendants had notice of the dangerous condition is misplaced as plaintiffs have failed to establish that defendants were required by law to comply with the ANSI standard as it has not been adopted by or incorporated into New York City's elevator code and ANSI itself is not a statute, ordinance or regulation.  ANSI standards do not constitute statutes, ordinances, or regulations and thus are not proper evidence for determining proper standard of care.  In sum, Plaintiffs fail to point to any past complaints about the transformers, any time when the transformers or the cabinet did not pass inspection, or any industry-wide problems or issues with this type of cabinet and transformers that would provide actual or constructive notice of a dangerous condition.

 

Hicks v Aibani

January 24, 2018

Appellate Division, Second Department

 

Plaintiff allegedly was injured while performing repair work at a one-family house owned by the Aibanis’. The trial court granted the Aibanis’ motion for summary judgment dismissing the complaint alleging, as relevant here, a violation of Labor Law § 241(6).

 

Labor Law § 241(6) (MAS)

 

The Second Department affirmed the trial court’s finding that the statutory homeowners’ exemption applied because it is undisputed that the Aibanis’ house was a one-family dwelling and they did not direct or control the work. The Court rejected plaintiff’s claim that limited evidence that Mohammad Aibanis may have previously worked in the construction industry and that the Aibanis’ therefore had excess insurance coverage does not create a triable issue of fact.

 

 

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

 

 

 

12 NYCRR § 23-1.10 – Protection in Construction, Demolition and Excavation Operations; General Provisions; Hand Tools.

 

Regulation § 23-1.10(b) is entitled Electrical and pneumatic hand tools; subsection (1) sets forth safety standards for disconnecting and shutting off electric and pneumatic hand tools, and is sufficiently specific to support a Labor Law § 241(6) claim.

 

Shields v General Elec. Co., 3 AD3d 71555, 771 NYS2d 249 (3d Dept 2004);

Szafranski v Niagara Frontier Transp. Authority, 5 AD3d 1111, 773 NYS2d 332 (4th Dept 2004);

Rivera v 15 Broad Street, LLC, 76 AD3d 621, 906 NYS2d 333 (2d Dept 2010);

Coleman v ISG Lackawanna Services, LLC, 74 AD3d 1825, 902 NYS2d 480 (4th Dept 2010).

 

Shields deemed 1.10(b)(1) sufficiently specific to sustain a Labor Law § 241(6) claim.

Szafranski held neither air compressor nor gauge on air compressor is hand tool within meaning of reg.

Rivera held reg. inapplicable to injuries arising from use of core drilling machine or core borer π was operating at time of his injury.

Coleman held reg. did not apply where π injured while using diesel-powered water blasting unit.

 

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

 

Labor Law Team

 

            David R. Adams, Team Leader                                              Steven E. Peiper

            [email protected]                                                             [email protected]

 

            Dan D. Kohane                                                                       Jennifer A. Ehman

            [email protected]                                                            [email protected]

 

Marc A. Schulz                                                                       Eric D. Andrew

            [email protected]                                                            [email protected]

           

            Michael F. Perley                                                                    Howard D. Altman

            [email protected]                                                            [email protected]

           

            V. Christopher Potenza                                                           Ashmita Roka

[email protected]                                                            [email protected]

 

Brian F. Mark                                                                         

[email protected]                                                           

 

 

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Phone:  716.849.8900
Fax:   716.855.0874
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