Labor Law Pointers

 

Volume VII, No. 5

Wednesday, March 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 do so love a twisted and complex situation.  Give us a call, or an email, and we will help you with your situation.

 

Some interesting cases this month, several point out the advantages of early and through investigation.  We offer a 24 hour response team which puts an attorney in charge of a team investigating the scene within hours of a serious accident.  Most times we are there for the 1b carrier as they are notified immediately of a serious accident, but there are times we are there for the CGL carrier as well.  An advantage to having the investigation run by an attorney is not simply that the attorney knows the law and has experience in investigating this type of accident, but also that, to varying degrees, privilege is attached to the investigation and the resulting report, if any. If anyone has any question about out response team feel free to reach out to me at any time.  If you ever need me my cell number is 716-553-6901 and I have no problem taking calls at all hours of the day and night.  Put the number in your phone and call with any questions labor law or risk transfer related. 

 

In addition to having a team ready to go on any construction accident, we have a similar team for trucking accidents or premises liability and products liability accidents, you can reach out to me for products cases, Mike Perley for trucking or Jody Briandi for Premises cases.  We would love to help.  In addition anyone not receiving Dan Kohane’s Coverage Pointers or Jody Briandi’s Premises Pointers, just click on their name hyperlink and send them an email.  Tell them David sent you for a huge discount.

 

There is one case this month I really want to call attention to, the Fourth Department’s decision in Bonczar v American Multi-Cinema, Inc.  The court has taken a big step forward and they appear to be looking at the plaintiff’s actions in setting up the ladder which later moved causing the plaintiff to fall.  This is a departure from the holdings of the fourth historically and a move towards what I would consider to be a more just and equitable reading of the labor law. 

Historically the Fourth Department in Whalen held that where plaintiff had set up a ladder, not by opening the A-frame but rather by leaning it against a door which opened away from him, that when that door opened and he fell from the ladder that there was no sole proximate cause defense available as the ladder was not properly placed.  Recall that the plaintiff himself placed the ladder in that position.  The court held that  ”Plaintiffs met their initial burden by submitting evidence establishing that “ defendant[s] violated Labor Law § 240(1) by failing to ensure the proper placement of the ladder” and that “Defendants failed to raise a triable issue of fact sufficient to defeat the cross motion. “While the plaintiff may have been negligent in [leaning the ladder against the door], the plaintiff's conduct cannot be considered the sole proximate cause of his injuries”.

 

Contrast the decision in Bonczar where the majority held that Plaintiff did not know why the ladder wobbled or shifted, and he acknowledged that he might not have checked the positioning of the ladder or the locking mechanism, despite having been aware of the need to do so. We thus conclude that plaintiff failed to meet his initial burden on the motion. "[T]here is a plausible view of the evidence—enough to raise a fact question—that there was no statutory violation and that plaintiff's own acts or omissions were the sole cause of the accident".

 

That, my friends, is a shift in the court, not a unanimous shift, but a majority.  Equally important is the fact that the court cites to Blake in support of their position, a 2003 case from the Court of Appeals, a case which existed when  Whalen was decided in 2008.

 

On to more fun things, like crazy pictures.  When the guy at the top of the ladder does fall, and it is almost a certainty, and lands on both of the guys holding the ladder, who will be a valid labor law plaintiff and why given the decision in Bonczar?

 

 

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I would argue that all are valid plaintiffs and that all will win.  If all three are involved in the placement of the ladder, and it causes the guy at the top to fall and land on the others, he sustains a fall and is a valid plaintiff and the other men are hit by a falling object and are likewise valid plaintiffs.  The sole proximate cause defense is not going to work here because with three of them setting this up none could be the SOLE proximate cause of the fall.  They may well go by their stage names, Curley, Larry and Moe for this stunt, but they would all likely have successful claims.

 

That is it for this month; remember to feel free to call with any questions or any requests for training, we are here to help.

 

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.

 

Gerrish v 56 Leonard LLC

February 20, 2018

Court of Appeals

 

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

 

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

 

Labor Law § 241(6) (MAS)

 

The Court of Appeals held that, viewing the evidence most favorably to plaintiff as the nonmoving party, the Complaint states a cause of action and defendants’ documentary evidence does not establish as a matter of law that the work site where plaintiff’s injury occurred was not a construction site under Labor Law § 241(6).

 

 

Fraser v City of New York

February 1, 2018

Appellate Division, First Department

 

Plaintiff was employed as an ironworker and allegedly sustained injuries while performing work on an elevated steel beam. He was struck by another steel beam that was being hoisted above him which caused him to fall from the elevated beam to the ground below as a result of defendants’ failure to provide adequate safety devices, including safety belts and safety harnesses. The trial court granted plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim.

 

Labor Law § 240(1) (DRA)

 

The First Department unanimously affirmed the trial court because the proof did not support defendants’ claim that plaintiff was the sole proximate cause or a recalcitrant worker because a proximate cause was the failure of the chain fall to adequately support the load that spun down and struck him, knocking him from the beam on which he was working to the ground.

 

PRACTICE POINT: Where there is a failure of multiple safety devices, the fact that plaintiff may have failed to use one of them as instructed does not result in a sole proximate cause defense being successful as there is no way that the plaintiff’s actions could be the SOLE proximate cause of the accident and injury.  Here no matter what other safety device the plaintiff failed to use, the fact remains that a second safety device, the chain fall, failed and caused the load to fall and strike him.  That must be a proximate cause of the accident and thus nothing else can be the sole proximate cause.

 

 

Miller v 177 Ninth Ave. Condominium

February 8, 2018

Appellate Division, First Department

 

Plaintiff and another laborer were transporting bins of construction debris to a dumpster to dispose it. They had to lift the bins over their heads to dump the debris into the dumpster.  Plaintiff was injured when he and a coworker hoisted a 300-pound laundry bin to empty the debris within it into a dumpster. The trial court granted plaintiffs' cross-motion for summary judgment as to liability on the Labor Law § 240(1) claim. 

 

Labor Law § 240(1) (DRA) 

 

The First Department unanimously affirmed the trial court’s decision, finding that the accident was proximately caused by the undisputed absence of safety devices affording adequate protection against the elevation-related risk that plaintiff faced in light of the weight of the bin and the significant force it was capable of generating over the course of its five- to seven-foot fall. As a result, the Court held the height differential is not de minimis, relying on Runner and Jordan v City of New York, 126 AD3d 619 (1st Dept 2015).

 

PRACTICE POINT: Ignoring the “who in the world thought they could lift a 300 pound bin over their head” argument, the issue is whether or not a safety device should have been used as there was none there to protect the plaintiff.  A falling object of substantial weight struck and injured the plaintiff, per the court creating a prima facie 240(1) case.  Recall our comments last month on the Gonzalez case (also from the First Department) where the court held that an expert may opine on the appropriateness of a safety device but that an expert opinion as the necessity of a safety device is not appropriate.  Thus, in the instant case there is no ability of defendant to offer expert opinion that no safety device is necessary to dump the bin into the dumpster.

 

 

Nieves v. Trustees of Columbia Univ. in the City of New York

February 8, 2018

Appellate Division, First Department

 

Plaintiff allegedly fell from a scaffold, and the trial court granted plaintiff's motion for partial summary judgment on the issue of liability on her Labor Law § 240(1) claim. 

 

Labor Law § 240(1) (DRA) 

 

Although plaintiff testified she was injured when, while standing on a scaffold and constructing a wall, she fell from the scaffold to another platform several feet below, defendants’ submitted evidence showing that she never fell from the scaffold. Defendants also submitted an affidavit from plaintiff's foreman which stated that when he responded to the accident scene, he found plaintiff sitting on the scaffold platform on which she had been working and she had to be carried down. Accident reports also state that following the accident, plaintiff was found sitting on top of the scaffold. 

 

In light of the conflicting evidence as to how plaintiff’s alleged accident occurred, the First Department unanimously reversed the trial court and denied plaintiff’s cross-motion.

 

PRACTICE POINT:   Once again we are offered a case to reinforce the importance of a thorough investigation and complete review of all documents where statements of the plaintiff taken at or near the time of the accident will be recorded.  This includes accident reports, medical reports, ambulance records, comp forms and witness statements.  We offer a 24 hour response team who can be at any accident site within hours anyplace in the state, and clients have found this to be very helpful in obtaining sworn statement from witness while the memory is fresh and obtaining photo and having other experts on site to memorialize the evidence. 

 

 

Guaman v. City of New York

February 13, 2018

Appellate Division, First Department

 

Plaintiff’s decedent fell through an unguarded opening in the floor of a construction site. Defendants established that a harness and safety rope system was in place on the roof, that the decedent had been instructed to remain tied off at all times while on the roof, and that he could not have reached the skylight through which he fell if he had remained tied off.  The trial court denied plaintiff's motion for summary judgment on the Labor Law §§ 240(1) and 241(6) claims.

 

Labor Law § 240(1) (DRA) 

 

The First Department unanimously affirmed, finding that contrary to plaintiff's claim, a fall through an unguarded opening in the floor of a construction site constitutes a violation of Labor Law § 240(1) “only where a safety device adequate to prevent such a fall was not provided”. As defendants established the safety devices were, in fact, provided and plaintiff could offer nothing more than speculation that decedent unhooked his harness to reach the lift that transported workers to and from the roof or that the system of harness, lanyard, and safety rope failed, he Court held summary judgment was appropriate for defendants.

 

PRACTICE POINT:  Here the defendant met the 5 elements of the sole proximate cause defense; plaintiff was supplied with an appropriate and available safety device, which he had been instructed to use, which he misused for no good reason.  The plaintiff was not allowed to make speculative argument as to why the plaintiff was not attached to his safety line.

 

Labor Law § 241(6) (MAS)

 

In light of the First Department’s decision with respect to the Labor Law § 240(1) claim, the Court held that any violation of Labor Law § 241(6) was not a proximate cause of decedent’s accident, citing to Eddy v John Hummel Custom Bldrs., Inc., 147 AD3d 16, 24-25 (2d Dept 2016), lv denied 29 NY3d 913 (2017).

 

 

Licata v AB Green Gansevoort, LLC

February 13, 2018

Appellate Division, First Department

Plaintiff, a carpenter, was framing a bathroom of the owner defendants' building. As he stepped backwards off the ladder on which he had been working, his left foot got “caught . . . like sandwiched” in an unmarked and uncovered hole in the floor. He twisted backwards, injuring his knee, but stopped himself from falling to the ground by placing a hand out. He then straightened himself and pulled his foot out of the hole. The inside of the room had a lot of garbage on the floor. The hole was round and about six to nine inches in circumference. Plaintiff did not see the hole before the accident and did not know if garbage covered the hole or not. 

The trial court granted Alfa Piping’s  motions for summary judgment, the cross-motion of the owner defendants’ for summary judgment dismissing plaintiff 's Labor Law § 241(6) claim against the owner defendants, and plaintiff's Labor Law § 200 common-law and negligence claims against an owner defendants. The trial court also granted the respective motions of defendants J.E.S. Plumbing and Orion for summary judgment dismissing the owner defendants' contractual indemnification claims against them. 

Labor Law § 241(6) (MAS)

 

The First Department held determined that that Industrial Code regulation 1.7(e)(2), which states “Worker Areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp protections insofar as may be consistent with the working being performed”, was sufficiently specific to support a Labor Law § 241(6) claim.

 

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

 

The First Department reversed as to defendant Pavarini, finding that it is not entitled to dismissal of plaintiff's common-law negligence and Labor Law § 200 claims.  Plaintiff testified that he was in the space the entire day and the area was filled with garbage, debris, dirt and material. It was Pavarini's responsibility to clean garbage on the site. While Pavarini's project executive and mechanical, electrical, and plumbing superintendent each testified that they never observed unprotected holes or tub drains in their walk-throughs, defendants point to no evidence that they did not have notice of the strewn garbage and debris that allegedly contributed to plaintiff's accident by obscuring such holes. Accordingly, Pavarini has failed to eliminate all triable issues of fact as to whether it had, or should have had, notice of the hazardous condition on the premises in reasonable time to correct it, and whether it performed its task of cleaning the site in an appropriate and correct manner.

 

The Supreme Court however correctly dismissed the common-law negligence claim against J.E.S. Plumbing. Although plaintiff argues that J.E.S. Plumbing is the only entity that could have removed the cover on the hole, which is the only grounds he raises in support of his negligence claim against that entity, there is no evidence that J.E.S. Plumbing left the hole uncovered.

 

 

Indemnity Issues in Labor Law (SEP)

 

Initially, with respect to the owner’s claim for common-law indemnity/contribution, the Court held that no such claim could arise because none of the subcontractors against whom indemnification was sought were, in fact, negligent. 

 

Moreover, the owner’s claim for contractual indemnification against Alfa was also misplaced.  The contract at issue only provided indemnity where the damaged were found to be “arising out of Alfa’s work and caused by Alfa’s negligence.”  Again, because Alfa was actually not negligent, it follows that the clause as written is inapplicable to the claim. 

 

The clauses found in the JES Plumbing and Orion contracts, respectively, was far broader.  That clause, unlike the Alfa clause, provide a right of indemnity where the loss arose out of or was connected with the performance of work by a Trade Contractor. Notably, there is no negligence trigger in the J.E.S. Plumbing, nor the Orion, contracts. Here, the remains a question of fact as to whether the pipes on the floor in the vicinity of the accident belonged to J.E.S. Plumbing and Orion.  As such, the question for indemnity remained open. However, and notwithstanding the Court’s decision to deny summary judgment on the indemnity clause, the Appellate Division held that because the plaintiff made direct claims against both J.E.S. Plumbing and Orion, the owner was entitled to a defense.  Essentially, per the indemnity clause, the Court ruled that both parties had an obligation to provide a defense to the owner defendants.

 

Peiper’s Point – Whoa!  This is not a good development.  While a party may be indemnified for attorneys’ fees, there is not a defense obligation found within a trade contract.  Here, the Court converted a contractual obligation between the parties to the lawsuit into a duty to defend. The duty to defend is a contractual right found within an insurance contract; not, as the Court suggests here, within a trade contract.  A policy provides a defense even if the claims are “groundless, false or fraudulent,” I challenge anyone to find an equivalent in a trade contract.  Notably, the Courts no precedent for it seemingly creating a duty to defend out of thin air.  We are not surprised, as we’re not aware of any either.   

 

Domiguez v Barsalin, LLC

February 15, 2018

Appellate Division, First Department

 

Plaintiff was injured while conducting demolition and construction of a residence. He brought suit against the homeowners, who were never at the residence while it was under demolition/construction, had no role in the work, and intended to use the premises as a family vacation home. The trial court granted the homeowners motion for summary judgment dismissing the Labor Law §§ 240(1) & 241(6) claims based on the homeowners exemption.

 

Labor Law § 240(1) (DRA) 

 

The First Department unanimously affirmed, finding the homeowners’ exemption applied because nothing in the house plans suggested that any portion would be for commercial use and plaintiff merely offered speculation that it might be rented during those time periods when the homeowners were not residing there.

 

PRACTICE POINT:  The homeowner exemption is available for vacation homes as well as for primary residences as long as the home is not used for commercial purposes and the owner does not supervise, control or direct the means and method of the work being done.           

 

 

Sawczyszyn v New York Univ.

February 15, 2018

Appellate Division, First Department

 

Plaintiff was injured in the course of rolling a four-wheeled cart filled with about 100 to 200 pounds of materials over an unsecured, makeshift plywood ramp which bridged an approximately five- or six-inch gap between a truck bed to a loading dock, when the ramp slipped out of place and landed on the truck bed. The cart descended, pulling on plaintiff's arms and causing injuries. Plaintiff admitted the vertical distance from the surface of the truck bed to the surface of the dock was about 8 to 12 inches.  

 

The trial court granted plaintiff’s motion for partial summary judgment on the Labor Law § 240(1) claim and the Labor Law § 241(6) claim as based on an alleged violation of Industrial Code § 23-1.22(b)(3). The court also denied defendants' motion for summary judgment dismissing those claims, and granted plaintiff's cross-motion for leave to amend his bill of particulars to allege a violation of 1.7(f) in support of the Labor Law § 241(6) claim.

 

Labor Law § 240(1) (DRA)

 

The First Department modified the trial court’s order to dismiss the Labor Law § 240(1) claim because the height differential of about 8 to 12 inches did not constitute a physically significant elevation differential covered by the statute. Plaintiff’s injury was not proximately caused by a failure to protect him from any elevation-related risks posed by the distance of almost four feet from the floor to the surface of the dock, since plaintiff remained on the dock while the cart became wedged in the gap between the truck bed and the dock, and there is no evidence that the gap was large enough to pose a significant risk of any hazardous descent to the floor.

 

PRACTICE POINT:  Compare this result, where the cart could drop to the truck bed some 8 to 12 inches below, to a case where the cart, loaded with hundreds of pounds of material would fall onto the plaintiff.  I would bet the dollar I am about to win from Pat Curren that the court would have found a 240(1) case in that instance.  Here there was no danger by the moving of the ramp for the plaintiff to actually fall and I think that is what drove this decision. 

 

Labor Law § 241(6) (MAS)

 

The First Department affirmed summary judgment in favor of plaintiff based on 1.22(b)(3) as the Court rejected defendants’ conclusory claim that the four-wheeled plastic cart containing construction materials, which plaintiff was pulling over the ramp at the time of the accident, was not intended to be used by any types of equipment enumerated in the regulation, including “hand cart”. However, the Court reversed as to 1.7(f) and dismissed that claim because the ramp from the truck bed to the dock, covering a vertical distance of about one foot or less, did not provide access to an above- or below-ground working area within the meaning of this regulation.

 

 

Pena v Jane H. Goldman Residuary Trust No. 1

February 22, 2018

Appellate Division, First Department

 

Plaintiff was injured when the unsecured and damaged ladder upon which he was working wobbled, causing him to fall. The trial court granted plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) cause of action.

 

Labor Law § 240(1) (DRA) 

 

The First Department unanimously affirmed, finding that defendant's opposition failed to raise a triable issue of fact. The Court rejected defendant’s affidavit from plaintiff's supervisor as insufficient to rebut plaintiff's prima facie showing because it did not address the fact that the supervisor was at the scene of the accident shortly after plaintiff fell, and provided only vague references to other available ladders, without addressing plaintiff's testimony that other workers were using those ladders.

 

PRACTICE POINT:  A necessary element to a sole proximate cause defense is the availability of an appropriate safety device for the plaintiff’s use.  To establish that you must provide evidence of the location of the device and that the device was appropriate.  Once again this is a perfect example of why immediate investigation by a team knowledgeable about labor law cases is a huge benefit.   We have been able to document the presence of appropriate safety devices within hours of an accident leading to a favorable outcome for our clients.

 

 

Rom v. Eurostruct, Inc.

February 22, 2018

Appellate Division, First Department

 

Plaintiff allegedly fell to the ground when the unsecured ladder on which he was standing suddenly shifted and kicked out from underneath him. The trial court granted plaintiff's motion for partial summary judgment on his § 240(1) claim.

 

Labor Law § 240(1) (DRA) 

 

The First Department unanimously affirmed, finding plaintiff established his entitlement to summary judgment and defendants' opposition failed to raise a triable issue of fact as none of the coworker affidavits stated they actually witnessed plaintiff fall from the ladder, and did not contradict his testimony that the ladder suddenly moved. Although defendants submitted an unsworn accident report containing a statement from a coworker that plaintiff lost his balance and fell, the Court also held this also did not contradict plaintiff's testimony that he fell because the ladder suddenly collapsed or malfunctioned for no apparent reason.

 

PRACTICE POINT:  The quality of the evidence, in fact the admissibility of the evidence in support of or in opposition to a Summary Judgment motion can determine the outcome.  Here, an affidavit from the witness who’s statement is simply that the plaintiff lost his balance and fell may have altered the outcome here.  Where the plaintiff falls from a ladder because the ladder shifts of moves a prima facia case is established.  It is often an argument where there are statements that the plaintiff simply lost his balance with no mention of the ladder moving with the plaintiff arguing that the versions are not necessarily inconsistent, that the plaintiff could lose his balance and simply not mention that it was because the ladder shifted.  The outcome of these arguments often goes to the plaintiff, so a carefully obtained statement from the witness and a through statement from the plaintiff at the time of the accident can help a great deal.

 

 

Gonzalez v 1225 Ogden Deli Grocery Corp.

February 27, 2018

Appellate Division, First Department

 

Plaintiff was hired by defendant's commercial tenant to paint a decoration on a sign attached to the store. The deli owner supplied plaintiff an A-frame ladder, which the owner opened up and placed at the door, as well as with the necessary paint and brushes. Thirty minutes after plaintiff began painting, the ladder shifted “from side to side” and fell to the ground, causing him to fall. The trial court denied plaintiff's motion for summary judgment o his Labor Law §§ 240(1) claim.

 

Labor Law § 240(1) (DRA) 

 

The First Department reversed, holding plaintiff’s fall from an unsecured ladder establishes a violation of the statute, and defendant property owner is liable, even if the tenant contracted for the work without their knowledge. Defendants' offered only unsworn hearsay statements from witnesses previously undisclosed in discovery, which the Court held did not raise a triable issue of fact here since such statements cannot be the only evidence upon which the opposition to summary judgment is predicated.

 

PRACTICE POINT:  Once again the admissibility of the evidence offered in opposition to the plaintiff Summary Judgment motion is critical.  Early investigation is critical and when witness statements are found it is always a good idea to obtain an affidavit from the witness and to make certain the witness is disclosed.

 

 

Bonczar v American Multi-Cinema, Inc.

February 2, 2018

Appellate Division, Fourth Department

 

Plaintiff fell from a ladder in the lobby of defendant’s movie theater. At the time of the accident, plaintiff was updating a fire alarm system by his employer, who subcontracted by the company hired by defendant to renovate the theater.  Plaintiff did not know why the ladder wobbled or shifted, and he acknowledged that he might not have checked the positioning of the ladder or the locking mechanism, despite having been aware of the need to do so. The trial court granted plaintiff’s motion for partial summary judgment on the § 240(1) claim. 

 

Labor Law § 240(1) (DRA) 

 

A majority of the Fourth Department reversed and held that plaintiff failed to meet his initial burden as there is a plausible view of the evidence that there was no statutory violation and that plaintiff’s own acts or omissions were the sole cause of the accident”, citing Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 289 n 8 [2003].

 

Justices Whalen and Lindley’s dissent concluded that plaintiff met his initial burden by presenting evidence that the A-frame ladder from which he fell wobbled or shifted and therefore failed to provide him with proper protection, and that this statutory violation was a proximate cause of his injuries. They further concluded defendant submitted no evidence that had not already been submitted by plaintiff and failed to raise a triable issue of fact with respect to whether plaintiff's own actions were the sole proximate cause of his injuries.

 

According to the dissent, the fact that plaintiff could not identify why the ladder shifted was not persuasive because a plaintiff who falls from a ladder that “malfunction[s] for no apparent reason” is entitled to “a presumption that the ladder . . . was not good enough to afford proper protection”, citing again to Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280. Plaintiff’s testimony that the ladder was upright and “fully open” was sufficient that it would be unduly speculative for a jury to infer from plaintiff’s testimony that the sole proximate cause of the accident was his alleged failure to check the positioning of the ladder or whether it was locked into place.

 

PRACTICE POINT:  More movement towards holding the plaintiff responsible for the placement of the ladder in a sole proximate cause defense.  Here the plaintiff’s testimony that the ladder shifted but that it may have been due to the manner in which he set it up was sufficient for the majority to find a question of fact.  Remember that the entire “the ladder shifted” line of cases started here in the Fourth Department with Woods (07) Evans (08) and Whalen (08).   The fact that the fourth, or at least 3 justices from the fourth, as willing to place some responsibility on the plaintiff for the placement of the ladder is, in my opinion, a true shift in law and follows similar holdings in the Second Department over the past few years.  Now we need to hope that this does not settle but that the case gets to the Court of Appeals and we can, for once and for all, get a ruling that places responsibility on the plaintiff for the placement of the ladder.

 

 

Solecki v Oakwood Cemetery Assn.

February 2, 2018

Appellate Division, Fourth Department

 

Plaintiff, a funeral director, fell into a grave that had been dug by a contractor, pursuant to a contract with the property owner. On the day of the accident, plaintiff went to the cemetery to make sure that the grave site was ready for a burial that was to take place that day. As he approached the grave site, he observed that the grave was dug but it appeared that the site was not properly “dressed,” meaning that the vault and lowering device for the casket had not been installed, nor was a railing placed around the grave.

 

Instead, the grave opening was covered with a piece of plywood. As he approached the grave on foot, intending to lift the plywood to see whether the vault had been installed, he stepped on a corner of the plywood and fell into the grave. The trial court granted the motion of defendant contractor and the cross-motion of property owner for summary judgment dismissing all claims.

 

Labor Law § 240(1) (DRA) 

 

The Fourth Department unanimously affirmed dismissal of the Labor Law § 240(1) claim because plaintiff “was neither among the class of workers . . . nor performing the type of work . . . that Labor Law § 240(1) is intended to protect” (Chiarello v J & D Leasing Co., 299 AD2d 183, 183 [1st Dept 2002]. He was not erecting, demolishing, repairing, altering, painting, cleaning or pointing a building or structure, and could not raise an issue of fact that would place him among those workers intended to be covered by the statute or performing the work the statute protects.

 

PRACTICE POINT:  My basic format for the analysis of a labor law case is simple, is the plaintiff appropriate, is the defendant appropriate, is the overall project the type for which the statute provides protection and is the manner of the injury gravity related.  Here the case fails on two grounds, the plaintiff is not the type of plaintiff the statute is designed to protect and the overall activity is not of the type listed in the statute. 

 

 

Labor Law § 241(6) (MAS)

 

The Fourth Department reversed and found plaintiff’s inspection of the grave site had no direct connection with the alteration or excavation work performed by Wolcott, and plaintiff’s failed to raise a triable issue of fact.

 

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

 

The Fourth Department held that the trial court properly granted summary judgment dismissing the Labor Law § 200 claim because, while that statute is not limited to construction work it does not apply where, as here, the plaintiff was not permitted or suffered to work on a building or structure at the accident site. The court erred, however, in granting those parts of defendants' respective motion and cross motion seeking summary judgment dismissing the common-law negligence claim against them, and we therefore modify the order accordingly. Inasmuch as plaintiffs allege that plaintiff's injury occurred as the result of a dangerous condition on the premises, defendants were required to establish as a matter of law that they did not exercise any supervisory control over the general condition of the premises or that they neither created nor had actual or constructive notice of the dangerous condition on the premises.  Defendants' own submissions establish that each had some level of supervisory control over the premises. Moreover, it is undisputed that Wolcott dug the grave and placed plywood over it, thus creating and having actual notice of the condition that plaintiffs allege was dangerous. Further, while Oakwood established that it did not create the dangerous condition, it failed to establish as a matter of law that the condition was not visible and apparent or that it had not existed for a sufficient length of time before the accident to permit its employees to discover and remedy it and it thereby failed to establish that it lacked constructive notice of it.  

 

The Fourth Department further rejected the contention of both defendants that they are entitled to summary judgment dismissing the amended complaint against them on the ground that an open grave is an inherent feature of a cemetery, of which plaintiff, a funeral director, was necessarily aware. Here, the allegedly dangerous condition was not simply an open grave, but instead was an open grave guarded by a piece of plywood that was allegedly inadequate by virtue of its size or placement to protect against plaintiff's fall.

 

Similarly, the Fourth Department also rejected defendants' contention that they are entitled to summary judgment on the ground that plaintiff's actions were the sole proximate cause of his injuries. Plaintiff testified that he was generally aware that it is not safe to step on plywood covering an open grave and, indeed, he further testified that he tried to avoid stepping on the plywood. In any event, plaintiff's awareness of the danger does not negate the duty to maintain the cemetery in a reasonably safe condition but, rather, bears only on plaintiff's comparative fault on the negligence claim. 

 

Robinson v Spragues Wash. Sq., LLC

February 9, 2018

Appellate Division, Fourth Department

 

Plaintiff was working on a commercial redevelopment project converting property formerly used for manufacturing into a retail space. He was injured while attempting to install a door frame in an exterior doorway. The frame became stuck, and when he tried to free it, a steel lintel fell on his head. The trial court denied plaintiff's motion for partial summary judgment on the issue of liability under Labor Law § 240(1), granted the motion of SWS and the cross- motion of BGB seeking dismissal of the Labor Law § 241(6) claim, and denied the motion of SWS and the cross-motion of BGB seeking summary judgment dismissing all claims and cross-claims against them.

 

Labor Law § 240(1) (DRA) 

 

The Fourth Department rejected BGB’s assertion that it was entitled to summary judgment dismissing the Labor Law claims and related cross-claims against it on the ground that it is not subject to liability as a general contractor or an agent of SWS as BGB's own submissions raised triable issues of fact whether BGB had the authority to supervise or control the injury-producing work, and thus whether it may be held liable as a general contractor or an agent of the owner.

 

The Court also held plaintiff failed to establish as a matter of law that BGB was the general contractor or agent of SWS, and thus was not entitled to partial summary judgment on that issue.

 

The majority of the Fourth Department found that no party was entitled to summary judgment on the issue of whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential, because the evidence failed to establish whether the lintel was permanently secured to the building with mortar or temporarily installed on top of the doorframe, and thus triable issues of fact remained whether a statutorily enumerated protective device would have been necessary or even expected to shield plaintiff" from the falling lintel. The Court also rejected defendants’ contentions on sole proximate cause for the same reason.

 

Justices Curran and NeMoyer’s dissent would hold the lintel had become a permanent fixture of the building and did not require securing such that the Labor Law § 240(1) claim is dismissed as a matter of law since the lintel did not fall on plaintiff as a consequence of the absence or inadequacy of an enumerate safety device.

 

PRACTICE POINT:  The issue of the permanence of the lintel is a factor sometimes overlooked.  If the linel was a permanent portion of the building there would have been no need to secure it.  If, on the other hand it was temporary it was an item which needed to be secured.  It is akin to the difference between a temporary staircase and a permanent one.  If a plaintiff falls from a permanent stair it is not a stair there was no need for a safety device and thus no labor law case,  If the plaintiff falls from a temporary stair a safety device should have been present to revent the fall and a labor law case will exist.

 

Labor Law § 241(6) (MAS)

 

The Fourth Department revered the trial court’s decision to dismiss this claim predicated upon an alleged violation of 12 NYCRR § 23-1.8(c)(1) since SWS and BGB failed to establish as a matter of law that plaintiff was not working in an “area where there [was] a danger of being struck by falling objects or materials or where the hazard of head bumping exist[ed]”.

 

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

 

The Fourth Department held that with regard to plaintiff's Labor Law § 200 and common-law negligence causes of action against BGB, contrary to BGB's contention on its cross appeal, it failed to eliminate triable issues of fact whether it had control over the work site and actual or constructive notice of the dangerous condition that allegedly caused plaintiff's injuries.

 

 

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

 

 

12 NYCRR § 23-1.11 – Protection in Construction, Demolition and Excavation Operations; General Provisions; Lumber and nail fastenings.

 

Regulation § 1.11(a) requires “lumber used in the construction of equipment or temporary structures” to be “sound and shall not contain any such defects such as ring shakes, large or loose knots or other defects which may impair the strength of such lumber for the purpose for which it is to be used”, and is sufficiently specific to support a Labor Law § 241(6) claim.

 

Skudlarek v Bethlehem Steel Corp., 251 AD2d 973, 673 NYS2d 344 (4th Dept 1998);

Maldonado v Townsend Ave. Enterprises, 294 AD2d 207, 741 NYS2d 696 (1st Dept 2002);

Morgan v Neighborhood Partnership Housing Development Fund Co., Inc., 50 AD3d 866, 855 NYS2d 671 (2d Dept 2008);

Mouta v Essex Market Development LLC, 106 AD3d 549, 966 NYS2d 13 (1st Dept 2013);

DePaul v N.Y. Brush, LLC, 120 AD3d 1046, 994NYS2d 59 (1st Dept 2014);

 

Skudlarek found reg sufficiently specific & applicable where π standing on 10-inch high wooden pallet, five feet above floor level, fell backwards after the jacking device began to slip & he landed on the floor.

Maldonado held reg did not apply where π allegedly fell backwards through an unguarded opening when a staircase had been removed to a level several feet below.

Morgan held reg inapplicable where π stepped onto unsecured plywood walkway that permitted egress to his work area & was walking on it when he fell through plywood.

Mouta held reg did not apply to π injured when he stepped on section of plywood platform that, unbeknownst to him, was being dismantled, and he fell from the fourth floor to the second.

DePaul held wooden plank that allegedly broke while π was walking across it not a “structure” w/in meaning of reg b/c plank was one of three loose planks that were lined up end-to-end for use as walkway; but had not been joined together.

 

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