Labor Law Pointers

 

Volume VII, No. 6

Wednesday, April 4, 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. 

 

I write this as I try to finish up all the things I promised to people before leaving on vacation. My daughter is attending school in London at University College London, studying law, and has a month off so we are going to spend a week with her in Europe. You would think we would be headed to London, but no, she has seen London now so we are headed to Italy. I am not complaining; she is awesome, as all my kids are, and I am looking forward to seeing her, and Italy, in that order.

 

Spring is just around the corner and, as always, a young man’s fancy turns to… training sessions. Admittedly, training is not as much fun as the answer you thought I was going to give (no Dan, not baseball) but it is a necessary part of our careers. Please feel free to reach out if there is any topic Labor Law or Risk Transfer related that you would like us to put on a seminar for your team. We are happy to meet with your team in person, or via webinar if that works better for you. I know many organizations have meetings in the spring and early summer; if you are interested we can come and put on a seminar while all team members are centrally located.

 

As usual, I have a couple of pictures below where we usually analyze the labor law implications. This month, my question is simpler: what the hell were they thinking? Do you trust a few of your coworkers to hold the ladder you are on, about 20 feet in the air, in their hands while you work or do you balance the ladder on a garbage can and a cart, both of which are on wheels by the way. Which is the better choice? Inquiring minds want to know.

 

 

 

 

 

 

 

 

As always, feel free to reach out to any of us with questions or comments, we are here to help. 

 

David

 

Adams HighC

 

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. West 38th St. Dev. LLC

March 1, 2018

Appellate Division, First Department

 

Plaintiff allegedly was injured when his left foot fell through a gap in a wooden walkway that sloped downward from the bottom of a staircase to the concrete floor of the basement and placed over a trench. Plaintiff walked from one end of the wooden walkway to the other in the dark.

 

He claimed he fell because his left foot stepped forward to step on a wooden plank, but there was a gap at the opposite end of the walkway, causing him to fall forward as well as the lack of illumination. The trial court denied both parties’ respective motions for summary judgment on the Labor Law 241(6) claim based upon an alleged violation of Industrial Code regulation (12 NYCRR) § 23-1.30.

 

Labor Law § 241(6) (MAS)

 

The First Department unanimously affirmed because regardless if plaintiff established a prima facie case, the Court held defendants raised an issue of fact as to the adequacy of the lighting in the basement at the time of the accident and thus plaintiff was not entitled to summary judgment.

 

Karwowski v 1407 Broadway Real Estate, LLC

March 1, 2018

Appellate Division, First Department

 

Plaintiff, a former employee of third-party defendant XCEL, allegedly injured his left thumb on an unguarded table saw when he was cutting a piece of plywood to be used in the renovation of defendant Cayre’s executive bathroom on the 41st floor of the building located at 1407 Broadway. Cayre leased its space on the 41st and 42nd floors of the building from defendant 1407 Broadway, which held the net operating lease on the entire building.

 

Cayre entered into a lease extension with 1407 Broadway, which included a provision that 1407 Broadway would reimburse Cayre for tenant improvements, and also included a schedule of approved contractors permitted to work in the building, which included XCEL. Cayre hired XCEL to do the renovations to its space pursuant to an oral agreement. The lease extension also provided that “[a]ll work done by the contractor [XCEL] must be coordinated with the Building Manager,” and the contractor “must comply with all reasonable direction given by the Building Manager with respect to the scheduling and performance of the work.”

 

The unguarded table saw was located on the 16th floor of the building, where employees of XCEL kept their tools and materials for projects they were performing in the building. XCEL used only a portion of the 16th floor to store its materials and tools, including the table saw, but it did not have any personnel or office furniture. XCEL did not have a lease with either Cayre or 1407 Broadway for the space, and did not pay rent to anyone for the space.

 

The trial court granted Cayre's motion for summary judgment, finding the 16th floor work “was a permanent workshop controlled by XCEL, not a temporary staging area ancillary to the Project and controlled by Cayre”. Although 1407 Broadway did not seek summary judgment as to plaintiff's claims, the court nonetheless searched the record and found that because Labor Law § 241(6) did not apply to plaintiff's accident, the Labor Law claims must be dismissed as against 1407 Broadway as well. The court also determined its grant of summary judgment and dismissal of all claims against 1407 Broadway rendered its indemnification cross-claims moot.

 

Labor Law § 241(6) (MAS)

 

The First Department found disputed issues of fact whether the 16th space qualifies as a construction area since although defendants contend the 16th space is XCEL’s permanent workshop, in fact, it belonged to 1407 Broadway, and the 41st floor location being renovated was owned by 1407 Broadway and leased to Cayre. The court noted defendants cannot dispute that had the table saw been set up on the 41st floor and the accident occurred there, the protections of Labor Law § 241(6) would apply. Merely because it was more convenient to leave the tables saw on the 16th floor and cut the wood there, and then bring the wood up to the 41st floor by elevator, the Court held should not result in the automatic loss of the protections afforded by the statute.

 

Indemnity Issues in Labor Law (SEP)

 

The First Department reversed denial of 1407 Broadway’s cross-motion because the indemnity provision contained a negligence trigger by the “Tenant, its subtenants, contractors, licensees, agents, servants, invitees, employees, or visitors …” Contrary to Cayre’s position, the Court held this clear and unambiguous provision does not require a finding of “active negligence” or fault by Cayre, but only must arise from any act or omission of Cayre or its contractor, here, XCEL. Since the clear language required the landlord to be indemnified by the tenant, for any work being done by the tenant or its contractors, the Court awarded summary judgment to 1407 Broadway on its contractual indemnity claim against Cayre.

 

Zurich Am. Ins. Co. v Tower Natl. Ins. Co.

Decided on March 1, 2018

Appellate Division, First Department

 

Plaintiff, Don Brown, was injured in the course of his employment for Port Richmond.  Port Richmond was retained by General Contractor, Aragon, to install glass doors and partitions at building site owned by SLG and leased by General American.  Plaintiff commenced a personal injury action against SLG and Aragon which sought recovery under the New York State Labor Law. 

Aragon and SLG commenced third-party actions against General American and Port Richmond which sought contractual indemnity pursuant to the accompanying trade contracts.  At the conclusion of trial, the jury assessed damages against Aragon in the amount of approximately $1,000,000.  Mr. Brown was assessed approximately 50% comparative fault.  After the trial, the court set aside the verdict against Aragon, and Mr. Brown commenced an appeal.  During which time, Aragon, through its insurer Zurich, settled the case.

 

Indemnity Issues in Labor Law (SEP)

 

Zurich then commenced a plenary action against Port Richmond and Port Richmond’s carrier.  Zurich’s theories against Port Richmond were failure to procure insurance and, again, asserting a claim for contractual indemnity. Port Richmond opposed on the basis that Aragon settled a case where it was not liable. Essentially, they argued that because they did not participate in the settlement (nor were on notice of it), Aragon had to establish it would have been eventually been responsible for the damages. However, the Court noted that where the party from whom indemnification is sought is on notice of the settlement, he/she/it is bound by any good faith settlement made by their indemnitee. 

 

Here, the clause at issue clearly applies to provide contractual indemnification for the loss at hand. Further, it was also clear Port Richmond was on notice of the action commenced by Mr. Brown, as well as its settlement. Under such circumstances, it follows that Aragon was not required to establish its liability to the plaintiff. 

 

Zurich’s failure to procure insurance claim was affirmed on a question of fact. Port Richmond moved to dismiss the claim on the basis that it was only required to provide insurance for the “owner,” and General American was a lessee of the premises.  In finding a question of fact, the First Department noted General American was identified as an “owner” in the prime contract.  With respect to Aragon’s claim for breach of failure to procure insurance, Port Richmond actually contends that Aragon was covered under the policy. Again, on this Record, the Court was not clear as to what coverage Aragon may, or may not, have been entitled to receive.

 

Colon v Metropolitan Transp. Auth.

March 6, 2018

Appellate Division, First Department

 

Plaintiff was allegedly injured when he fell from a makeshift platform while torquing bolts on the Henry Hudson Bridge restoration project. At the time of his fall, plaintiff was wearing a vest and lanyard, yet he did not attach himself to the available lifeline. The trial court denied plaintiffs summary judgment on the Labor Law § 240(1) claim, and granted defendant’s summary judgment motion dismissing plaintiffs’ Labor Law § 241(6) claim.

 

Labor Law § 240(1) (DRA)

 

The First Department found questions of fact concerning whether it was feasible or even practical for Colon to have attached himself to the lifeline or whether another safety device was required and whether it was provided. The appropriateness of a lifeline may depend on the height of the work, the length of the line and the work being performed, which would also indicate whether a different safety device would be more appropriate in that specific circumstance.

 

PRACTICE POINT:  This case revolves around the first and fifth elements of the sole proximate cause defense to a NY Labor Law case.  For those of you who do not use them in the same order as I do, here are my five elements of the sole proximate cause defense:

  1. An appropriate safety device.

  2. That the appropriate safety device be available.

  3. That the plaintiff has been instructed to use that safety device or that he knew he was expected to use it.

  4. That the plaintiff fails to use or misuses the safety device.

  5. That the plaintiff’s failure to use or misuse of the safety device be for no good reason.

 

Here, the First Department uses two terms which lead, in my analysis, to separate elements. The safety devices provided were harness, lanyard, and lifeline. The question arises as to whether it was feasible or practical for the plaintiff to be attached to the lifeline. The Court’s use of the term feasible leads me to the issue of whether the safety device, the lifeline, was truly available to the plaintiff. The term practical leads me to whether the plaintiff had a “good reason” not to be clipped in. I think they threw in the bit about the other potential safety devices given the question of whether the plaintiff could clip in to the existing lifelines.

 

Labor Law § 241(6) (MAS)

 

The First Department affirmed dismissal of this claim as plaintiffs only argued that defendants violated Industrial Code regulation 23-1.7(e)(2), which requires floors and similar work areas be kept free from materials and debris. Here, the Court held plaintiff’s own testimony demonstrates that a violation of this regulation was not a factor in his accident.

 

Gomes v Pearson Capital Partners LLC

March 8, 2018

Appellate Division, First Department

 

Plaintiff was working on a scaffold when he tripped on a block and fell backward off the scaffold to the ground. It was undisputed the scaffold did not have railings, toe boards, or cross-bracing, and there was no place for plaintiff to tie off his safety harness. The trial court granted plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim, and denied defendants cross-motion to dismiss the Labor Law § 241(6) claim predicated on Industrial Code § 23-5.1(j).

 

Labor Law § 240(1) (DRA)

 

The First Department unanimously affirmed, citing,  Barreto v Metropolitan Transp. Auth., 25 NY3d 426, 433 [2015], in finding plaintiff’s testimony that the accident occurred when he was on the scaffold, that he tripped on a block and fell backward off the scaffold, along with his worker's compensation claim that he slipped and fell while on the scaffold, was sufficient to establish a violation of the statute and that the violation was a proximate cause of the injury.

 

The Court rejected defendants’ hearsay exception arguments since they were only raised for the first time on appeal, and even if they were considered, the Court found them unavailing.

 

PRACTICE POINT:  When the description of the incident starts with “It was undisputed that the scaffold did not have railings, toe boards, or cross-bracing, and there was no place for plaintiff to tie off his safety harness” you know you are fighting an uphill battle. Defendant tried to raise an issue on sole proximate cause for the first time on appeal, and based on a statement of the plaintiff to the foremen, with the court getting into the four types of hearsay exceptions raised by the defendant but all are deemed not applicable.

 

Labor Law § 241(6) (MAS)

 

The First Department found issues of fact regarding the actual height of the scaffold, which precluded summary judgment in favor of defendants regarding Industrial Code § 23-5.1(j), prescribing detailed standards for scaffolds by requiring safety railings be provided for open sides of scaffolds located more than seven feet.

 

Merino v Continental Towers Condominium

March 8, 2018

Appellate Division, First Department

 

Plaintiff slipped or fell from an unsecured ladder upon which he was working because it allegedly moved. The trial court dismissed plaintiff’s Labor Law §§ 240(1) and 241(6) claims against Rose, and brought up for review a prior order denying defendants' motion for summary judgment dismissing the 240(1) and 241(6) claims against defendant property owner Continental Towers, and denying plaintiff's cross-motion for summary judgment on his 240(1) claim.

 

Labor Law § 240(1) (DRA)

 

The First Department found the trial court erred in determining that Rose was not an agent of Continental Towers. Labor Law §§ 240(1) and 241(6) impose absolute liability on owners, contractors, and their agents for a statutory violation resulting in injury, regardless of whether they directed or controlled the work (Ragubir v Gibraltar Mgt. Co., Inc., 146 AD3d 563, 564 [1st Dept 2017]). Therefore, the test of whether a defendant is a statutory agent subject to liability under those sections is not whether it actually supervised the work, but whether it had the authority to do so (Voultepsis v Gumley-Haft-Klierer, Inc., 60 AD3d 524, 525 [1st Dept 2009]). While Continental Towers’ resident manager may have been unaware of what tasks Rose actually performed as Continental's managing agent, defendants point to no evidence in the record that Rose lacked such authority.

In considering plaintiff’s cross-motion, the Court held the testimony of plaintiff's coworker that stated plaintiff slipped was not inconsistent with plaintiff's version that he slipped after the ladder moved, and defendants’ expert affidavits asserting that no force acted upon the ladder that could have caused it to move were speculative. The Court vacated dismissal of plaintiff's Labor Law § 240(1) claim against Rose, reinstated the claim, and granted plaintiff's cross-motion for summary judgment as to liability on his Labor Law § 240(1) claim.

PRACTICE POINT:  This is a point sometimes missed even by the courts, that to be an appropriate defendant all that is necessary is that the party have the authority to supervise, direct or control the injury producing work, not that they actually did. This leads us back to a common thread in our suggestions to our readers, read the contracts, all of them! This will allow you to determine who is an appropriate labor law defendant and who is not. As to the merits of the labor law claim, where the ladder moved causing plaintiff to fall, it is almost always a prime facia labor law case. We are watching the courts closely as some are moving slowly, glacially it seems to us, towards applying sole proximate cause to a plaintiff who places the ladder himself such that it then moves as a result of the placement, causing his own injury. I am trying to remain patient, I really am.

 

Labor Law § 241(6) (MAS)

 

Regulation § 23-1.21(b)(4)(ii) requires all ladder footing be firm, and is sufficiently specific to support a 241(6) claim. Regulation § 1.21(e)(3) requires that, “[w]hen work is being performed from a step of a stepladder 10 feet or more above the footing, such stepladder shall be steadied by a person stationed at the foot of the stepladder or such stepladder shall be secured against sway by mechanical means”, and is also specific enough to support a § 241(6) cause of action.

 

Here, the First Department held the trial court correctly dismissed the Labor Law § 241(6) claim insofar as it was predicated on alleged violations of 1.21(b)(4)(ii) and (e)(3) because plaintiff’s testimony established that there was no violation of either provision.

 

Matter of 91 St. Crane Collapse Litig.

March 15, 2018

Appellate Division, First Department

 

Plaintiff allegedly was injured when he tripped and fell while running to avoid being struck by a collapsing tower crane. The moving defendants obtained medical records from plaintiff's doctors and health care providers in Kentucky, Illinois and Indiana, or authorizations for such records, and sought under CPLR § 3119 to depose the doctors as well. The trial court denied defendants’ motions to conduct the out-of-state depositions.

 

Labor Law § 240(1) (DRA)

The First Department unanimously affirmed, finding that CPLR § 3119, which adopted the Uniform Interstate Deposition and Discovery Act, was not applicable in this case at it provides for disclosure in New York for use in an action that is pending in another state or territory within the United States, not the other way around as here, where parities in a New York action seek discovery from out-of-state witnesses. The Court noted defendants also failed to show the testimony they sought is unrelated to diagnosis and treatment, and is the only avenue of discovering the information sought.

 

PRACTICE POINT:  In New York, we are simply not permitted to depose the plaintiff’s health care providers regarding the care of the plaintiff, period.

 

Hobbs v MTA Capital Construction

March 20, 2018

Appellate Division, First Department

 

Plaintiff testified that he fell from a fixed, job-made access ladder when the edge of the rung on which he was stepping suddenly splintered and he fell. The trial court denied plaintiff’s motion for summary judgment on his Labor Law 240(1) claim.

 

Labor Law § 240(1) (DRA)

 

The First Department unanimously affirmed, finding plaintiff established prima facia entitlement to summary judgment with his testimony. However, the Court held defendants raised triable issues of fact through the affidavits of other workers on the site who stated they observed the ladder after the accident and found that no rungs were damaged or broken. They also averred that, shortly after the accident, plaintiff told them that he fell because his hand missed the handhold, causing him to lose his balance and fall.

 

PRACTICE POINT:  This case points out the value of an immediate and thorough investigation. While we all know it is not always possible to do such an investigation, as sometimes you do not even know about the accident for years, if possible, it can be an enormous help. We have a 24 hour Emergence Response Team ready to go and investigate serious accidents. The benefit of having the team headed by an attorney, and specifically a Labor Law attorney, is that not only does the investigation have a focus on defending the case in litigation by obtaining statements and material proof while memories are fresh and evidence available, but the result can be privileged and immune from discovery, and thus disclosure, before you are ready to reveal it.

 

Plywacz v 85 Broad St. LLC

March 20, 2018

Appellate Division, First Department

 

Plaintiff allegedly fell from an unsecured ladder while installing steel wall panels in the lobby of a building. The trial court granted plaintiffs’ motion for partial summary judgment on his Labor Law § 240(1) claim, and denied defendants' cross motion for summary judgment dismissing the Labor Law §§ 240(1), 241(6), 200, and common-law negligence claims.

 

Labor Law § 240(1) (DRA)

 

The First Department unanimously affirmed summary judgment in favor of plaintiff because it is irrelevant whether plaintiff initially lost his balance before or after the ladder wobbled, since it was uncontested the precipitating cause of both was that the suction cup he affixed to the panel and gripped to pull the panel into place came loose, citing Messina v City of New York, 148 AD3d 493, 494 (1st Dept 2017). Under either scenario, the ladder failed to remain steady under plaintiff's weight as he performed his work. Even if plaintiff gripped the suction cup incorrectly, causing it to come loose, the Court held any such misuse of the suction cup could not be the sole proximate cause of the accident where the unsecured ladder moved. 

 

PRACTICE POINT:  While we continue to hope for a change in the moving ladder sole proximate cause defense, the First Department remains firmly in the camp of any ladder movement which causes the plaintiff to fall is a labor law case regardless of the plaintiff’s actions in setting up the ladder or otherwise. 

 

Labor Law § 241(6) (MAS)

 

As plaintiffs do not contest that this claim should have been dismissed, the Court dismissed it.

 

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

 

Because plaintiffs failed to contest dismissal of these claims, the Court also dismissed them.

 

Conlon v Carnegie Hall Socy., Inc.

March 29, 2018

Appellate Division, First Department

 

Plaintiff allegedly was injured when, while installing sheetrock in a stairwell, he tripped on an extension cord and fell down stairs. The trial court denied plaintiffs' cross-motion for partial summary judgment on their Labor Law § 240(1) claim and denied defendants’ motion to dismiss that claim, and granted defendants’ summary judgment motion dismissing the § 241(6) claim. 

 

Labor Law § 240(1) (DRA)

 

The First Department found that because the stairway was an elevated surface on which plaintiff was required to work, and also the sole means of access to his work area, it constituted a safety device within the meaning of the statute, as well as an elevated work platform that required an adequate safety device. Under either theory, the Court found plaintiff's fall was the direct result of absence of an adequate safety device, and thus, plaintiff was entitled to partial summary judgment. The fact that plaintiff tripped on an extension cord does not take the case out of the ambit of the statute, and that the staircase from which plaintiff fell was a permanent structure of the building does not remove this case from the coverage of Labor Law § 240(1).

 

PRACTICE POINT:  Both of the cases cited within this decision, Ramirez v Shoats, 78 AD3d 515 (1st Dept 2010) and Gory v Neighborhood Partnership Hous. Dev. Fund Co., Inc., (113 AD3d 550 (1st Dept 2014) cite to Runner v New York Stock Exch., Inc., 13 NY3d 599 (2009). We are again reminded by Runner’s principles in this decision that where, as here, plaintiff’s fall was the direct consequence of a failure to provide statutorily required protection against a risk plainly arising from a workplace elevation differential, plaintiffs are entitled to partial summary judgment under § 240(1).

 

Labor Law § 241(6) (MAS)

 

The First Department unanimously affirmed as the “integral part of work” defense applies to an alleged violation of Industrial Code regulation 1.7(e)(1) and even if not, the regulation is inapplicable because the staircase was not serving as a “passageway” but rather a “working area” under 1.7(e)(2).

 

Marl v Liro Engrs., Inc.

March 7, 2018

Appellate Division, Second Department

 

Plaintiffs were employees of Ketco, the general contractor for a NYSTA highway construction project. Ketco subcontracted with Conrad, an environmental consultant, to prepare environmental safety plans as the location contained a landfill with known contaminated waste. NYSTA subcontracted with Liro to perform engineering inspection services. Plaintiffs worked at the project site, driving dump trucks and filling the trucks with soil from the area of the landfill.

 

Plaintiffs thereafter complained of dizziness while working, and were taken to a nearby hospital for treatment. They commenced this action against Liro and Conrad to recover damages for personal injuries allegedly as a result of exposure and injury from the toxic substances in the soil which they were excavating, and they were not provided with proper protective equipment. The trial court granted defendants’ summary judgment motions dismissing the complaint, and denied plaintiffs’ cross-motion for leave to amend the bill of particulars.

 

Labor Law § 241(6) (MAS)

 

The Second Department affirmed dismissal of this claim because Industrial Code regulation § 1.4(b) cannot serve as a predicate for Liro’s alleged liability under Labor Law § 241(6) as it is not sufficiently specific. The Court also properly denied plaintiffs’ cross-motion to allege a violation of § 1.7(g) because that section refers to the atmosphere of unventilated confined areas where dangerous air contaminants are present or where there is an insufficient oxygen supply, which clearly are not applicable to the facts of this case.

 

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

 

The Second Department affirmed dismissal of these claims against Liro, whom the Court held established, prima facie, that it lacked the authority to supervise the work to a sufficient degree to impose liability under a theory of common-law negligence or under Labor Law § 200, and the plaintiffs failed to raise a triable issue of fact in opposition.

 

Grasso v New York State Thruway Auth.

March 7, 2018

Appellate Division, Second Department

 

This is a companion case with Marl v Liro Engrs., Inc., above, involving the same events and injuries. This action was brought in the Court of Claims against NYSTA. The Court of Claims granted NYSTA’s summary judgment motion dismissing the Labor Law §§ 241(6), 200, and common-law negligence claims.

 

Labor Law § 241(6) (MAS)

 

The Second Department affirmed the Court of Claims dismissal of this claim against NYSTA for the same reasons as in the companion set forth above.

 

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

 

The Second Department reversed, finding the Court of Claims erred in granting that branch of NYSTA's motion which was for summary judgment dismissing the claims alleging a violation of Labor Law § 200 and common-law negligence. Initially, the Court found the Court of Claims erred in determining those claims were barred by the doctrine of collateral estoppel. Whereas the engineering defendants in the trial court action were contractors or subcontractors, NYSTA is the owner of the construction site where the injuries are alleged to have occurred. The evidence submitted by the engineering defendants establishing their entitlement to judgment as a matter of law dismissing the Labor Law § 200 and common-law negligence causes of action—that they lacked supervision or control over the performance of the work—is distinct from the evidence that NYSTA would have to submit in support of a motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims in the Court of Claims.

 

In addition, contrary to NYSTA's contention, it is not shielded from liability by the governmental function immunity defense, which provides immunity for the exercise of discretionary authority during the performance of a governmental function; however governmental entities acting in furtherance of a proprietary function will be subject to liability under ordinary principles of tort law. Proprietary functions include, for example, the maintenance of roads and highways in a reasonably safe condition, and ownership and care relating to buildings when the governmental entity acts as a landlord.  Moreover, the ownership and operation of a landfill has been deemed a proprietary function, subjecting the governmental entity to general principles of tort law.

 

As for to the underlying merits of the Labor Law § 200 and common-law negligence claims, liability under this statute is governed by common-law negligence principles. For liability to be imposed on the property owner, there must be evidence showing the property owner either created a dangerous or defective condition, or had actual or constructive notice of it without remedying it within a reasonable time. Regarding whether NYSTA had the authority to exercise supervision or control over the performance of the claimants' work, the Court found that it met its prima facie burden of demonstrating that it had no such authority.

 

However, in opposition, the Court held claimants raised a triable issue of fact regarding NYSTA's involvement at the work site. Regarding the alleged dangerous condition of the work site itself, NYSTA, in support of its motion, argued only that it could not be held liable for failing to remediate soil containing chemicals because the claimants' job was to remedy that very condition. The Court found NYSTA failed to demonstrate, prima facie, that the claimants were injured from defective or hazardous conditions that were part of or inherent in the work they were performing. In addition, the claimants raised a triable issue of fact as to whether their injuries were caused by a hazardous condition that they were not specifically hired to remediate.  Whether a dangerous condition is within the scope of the work an employee or contractor is hired to perform is a fact-specific inquiry.

 

Castillo v Port Auth. of N.Y. & N.J.

March 14, 2018

Appellate Division, Second Department

 

Plaintiff, an employee of an airline operating at LaGuardia, allegedly was injured when she slipped on a patch of ice in the employee parking lot at LaGuardia as she was walking to her car.  Pursuant to a contract with the Port Authority, defendant Cristi had a contractual duty to perform janitorial and cleaning services and certain snow removal services which did not include removing snow and ice from the parking lot.

 

Pursuant to a separate contract with the Port Authority, defendant Five Star managed the parking lot. Five Star’s contractual duties included, among other things, monitoring the condition of the parking lot, reporting snowy or icy conditions to the Port Authority, and removing snow and ice from certain exit lanes, but it did not have a duty to remove snow or ice from the parking lot. 

 

The trial court denied Cristi’s and Five Star Parking’s respective summary judgment motions seeking dismissal of the amended complaint and all cross-claims, contending that they did not have a duty to remove snow from the parking lot, and that they did not owe the plaintiff a duty of care. In denying Cristi's motion, the trial court held Cristi failed to demonstrate, prima facie, that its acts or omissions in its snow removal near the parking lot did not create the alleged icy condition on which the plaintiff fell. In denying Five Star's motion, the trial court concluded Five Star failed to demonstrate, prima facie, that it did not violate a duty to plaintiff to take proper action by notifying the Port Authority of the alleged hazardous condition.

 

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

 

The Second Department reversed and dismissed the negligence claims against Cristi and Five Star. A contractual obligation, standing alone, does not generally give rise to tort liability in favor of a third party unless one of three exceptions applies: (1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launche[s] a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely.

 

Here, the submissions in support of Cristi’s and Five Star’s motions show neither Cristi nor Five Star created or exacerbated the icy condition and thereby launched an instrument of harm. Rather, they merely failed to be “an instrument for good,” which the Court held is insufficient to impose a duty of care upon a party not in privity of contract with the injured party. Therefore, they established their prima facie entitlement to judgment as a matter of law on this issue. In opposition, the Port Authority failed to raise a triable issue of fact that the acts or omissions of either Cristi or Five Star left the parking lot more dangerous than they found it.

 

Further, the Court noted the contracts between the Port Authority, Cristi, and Five Star were not comprehensive and exclusive property maintenance agreements intended to displace the Port Authority's general duty to keep the premises in a safe condition. Thus, Cristi and Five Star established prima facie entitlement to judgment as a matter of law on this issue, and noted Cristi’s and Five Star’s duties to the Port Authority did not constitute duties to the plaintiff.

 

Indemnity Issues in Labor Law (SEP)

 

Cristi and Five Star both moved to dismiss the Port Authority’s motion for summary judgment on the basis that it violated General Obligations Law 5-322.1. In affirming the trial court’s denial of those applications, the Second Department noted that language from the contract clearly provided the Port Authority with a right of contractual indemnity. The Court noted that the “fullest extent permitted by law” clause of the indemnity provision inoculated it from violating the terms of Section 5-322.1.

 

Moreover, regardless of the sufficiency of the Port Authority’s opposition, the Court held Cristi and Five Star both failed to meet their respective burdens as the moving party where the failed to establish, on the record, that there was no breach of contract for failure to procure insurance.  Rather, both parties failed to present ANY evidence that insurance had been procured.   

 

De Jesus v Metro-N. Commuter R.R.

March 28, 2018

Appellate Division, Second Department

 

Plaintiff, an employee of nonparty Asplundh, allegedly was injured when he was cutting and removing a tree that had fallen onto catenary wires above the railroad tracks. At the time of the accident, plaintiff was standing on the ground and using a power saw to cut through the tree trunk when the tension in the catenary wires suddenly released, propelling the tree into the air. The tree broke in two and then fell, striking plaintiff's leg. It is undisputed the catenary wires could not be repaired and train service restored without first removing the tree.

 

The trial court granted defendants’ summary judgment cross-motion seeking dismissal of the Labor Law §§ 240(1) and 241(6) claims, and denied plaintiff’s summary judgment motion for partial liability on his § 240(1) claim.

 

Labor Law § 240(1) (DRA)

 

The Second Department held the catenary wires were a structure within the meaning of the Labor Law. Although “tree cutting and removal, in and of themselves, are not activities subject to Labor Law § 240(1)”, where, as here, the plaintiff's tree removal work constituted the first step in effectuating repairs to the catenary wires, the provisions of Labor Law § 240(1) are applicable.

 

Although defendant failed to establish, prima facie, that plaintiff was not engaged in an enumerated activity, it did establish, prima facie, that plaintiff's injuries were “not the direct consequence of the application of the force of gravity to an object or person. Rather, plaintiff's injuries resulted when the tree was first propelled upward by the sudden release in tension of the catenary wires and then split in two, striking plaintiff's leg.

 

PRACTICE POINT: Runner again, albeit in a different form, as the injury here was not the direct consequence of the application of the force of gravity to an object or person (Runner v New York Stock Exch., Inc., 13 NY3d 599, 604 [2009]).

 

Labor Law § 241(6) (MAS)

 

The Second Department held defendant was not entitled to summary judgment since plaintiff was engaged in activities ancillary to the repair of the catenary wires under Industrial Code regulation § 1.4(b)(13), which defines construction work expansively.

 

Lopez v 6071 Enters., LLC

March 1, 2018

Appellate Division, Third Department

 

Plaintiff, a truck driver, was employed by OAC - a company that crushes automobiles and processes the scrap metal for resale. While assisting his coworker load crushed cars and scrap metal into an open trailer, plaintiff was accidently thrown into the air and struck his head. The trial court denied plaintiff's cross-motion for summary judgment on his Labor Law §§ 240(1), 200, and common-law negligence claims, and granted defendant's motion to dismiss.

 

Labor Law § 240(1) (DRA) 

 

The Third Department unanimously affirmed, first determining that even if the open trailer was a structure, the activity plaintiff was engaged in was not a covered activity. Labor Law § 240(1) only protects plaintiff if he was altering or erecting the structure at the time of his accident. Here, plaintiff was assisting his coworker, a Caterpillar heavy equipment operator, who was attempting to load the open trailer with crushed cars and scrap metal. Plaintiff was standing on top of an approximately 13-foot pile of crushed cars inside of the open trailer whereupon he directed his coworker to place the scrap metal in the trailer. When the coworker struck the pile of cars on which plaintiff had been standing with the heavy equipment's claw, plaintiff was launched into the air and hit his head.

 

Notwithstanding plaintiff's elevated positioning atop the crushed cars inside of the open trailer, the record did not support plaintiff’s claim that, at the time of the accident, he was assisting with altering or erecting the open trailer. While that open trailer was being filled with debris in the form of scrap metal, plaintiff was not making any physical change to the trailer itself or erecting it by fitting together materials or parts or by fixing the open trailer in an upright position. 

 

PRACTICE POINT: The issue here is the final prong of our analysis in every labor law claim; whether the injury-producing work is the type of protected activity (altering or erecting) under the statute. Recall that we analyze the four basic elements of every labor law case at the outset: (1) Is the plaintiff an appropriate plaintiff; (2) is the defendant an appropriate defendant; (3) is the overall project the type for which the labor law was established to provide protection; and lastly (4) was the injury-producing accident the type specified in the statute. Here, the Court found no evidence that at the time of his injury, plaintiff was assisting with altering or erecting the open trailer.

 

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

 

The Third Department affirmed, finding defendant made a prima facie showing of entitlement to summary judgment as a matter of law as to the Labor Law § 200 and common-law negligence claims and plaintiff failed to raise a triable issue of fact. Although defendant leased to OAC the property on which the accident occurred, the record establishes defendant did not exercise supervision or control over the manner or method of plaintiff's work or the particular operation that led to his injury. Moreover, to the extent plaintiff seeks to hold defendant liable because its two owners are also partial co-owners of OAC and he alleges they were therefore alter egos of one another, the record establishes that OAC and defendant were separate entities formed for distinct purposes and that their finances and assets were not commingled. 

 

Calvert v Duggan & Duggan General Contractor, Inc.

March 16, 2018

Appellate Division, Fourth Department

 

Plaintiff allegedly was injured when a coworker ran over him with a skid steer while they were performing landscaping work in preparation for the opening of an entertainment complex, GTO. Defendant was the general contractor for the GTO project, which included destruction of existing structures and construction of restaurants, batting cages, and volleyball courts. Plaintiff and his coworker were employed by GTO and did not work for defendant. On the day of the accident, the coworker was using a skid steer owned by defendant to transport topsoil and mulch, and plaintiff was spreading topsoil on an island bed in the parking lot.

 

The trial court denied defendant’s motion to dismiss the Labor Law § 200 and common-law negligence claims, and granted defendant‘s summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims. 

 

Labor Law § 240(1) (DRA)

 

The Fourth Department held plaintiff failed to raise issues of material fact on his cross-appeal with respect to Labor Law § 240(1), and thus is deemed to have abandoned any issues with respect to that claim.

 

PRACTICE POINT: Here, based on the reasoning for dismissing the Labor Law § 241(6) claim, one cannot help but wonder if plaintiff’s counsel saw the writing on the wall that the  plaintiff was not an appropriate plaintiff under the statute since he was not engaged in any ongoing construction work at the time of his injury.

 

Labor Law § 241(6) (MAS)

 

The Fourth Department held that it is undisputed that plaintiff and his coworker were performing landscaping work in the parking lot that was unrelated to the ongoing construction work, which was not itself construction or demolition work under Industrial Code regulations §§ 1.4(b)(13) and (19). Additionally, defendant was not an owner, general contractor, or agent regarding the landscaping work being performed at the time of plaintiff’s alleged incident.

 

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

 

The Fourth Department reversed, and granted defendant’s motion seeking summary judgment dismissing the Labor Law § 200 and common-law negligence claims because they should have been dismissed insofar as they allege defendant failed to provide a safe place to work. The record establishes plaintiff's accident resulted from the manner in which the work was performed by the coworker, and not from a defective condition on the premises.  

Those claims also should have been dismissed insofar as they allege defendant is liable because it had supervisory control over the work that was being performed by the coworker. Here, the evidence submitted by defendant established that plaintiff and the coworker were both employed by GTO, not by defendant. They were performing landscaping work in the parking lot of the complex, and were not involved in the construction work being performed by defendant. Defendant did not give any instructions to plaintiff and the coworker about what work to perform or how to perform their work, and no one from GTO was required to use the skid steer to perform his or her duties. The fact that defendant allowed a GTO employee to use its equipment to perform work on the grounds did not give defendant supervisory control over the manner in which the landscaping work was being performed by the GTO employees. To the contrary, the record establishes defendant exercised no supervisory control over the landscaping work that was being performed by plaintiff and the coworker and, thus, defendant cannot be held liable for any injuries that were caused by the manner in which that work was being performed.

We further agree with defendant that negligence claim should have been dismissed insofar as it alleges defendant was negligent in entrusting the skid steer to the coworker and permitting him to use it without adequate training. Defendant met its initial burden by establishing it did not possess any special knowledge concerning a characteristic or condition peculiar to the coworker that rendered his use of the skid steer] unreasonably dangerous. Although plaintiff's expert opined that, without adequate training  a skid steer is an unreasonably dangerous machine, he did not define what constitutes “adequate training,” and he did not state that the coworker's past training in operating heavy machinery was inadequate.

 

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

 

 

12 NYCRR § 23-1.12 – Protection in Construction, Demolition and Excavation Operations; General Provisions; Guarding of power-driven machinery; Power driven saws.

 

Regulation § 1.12(c) prescribes safety features for certain power-driven saws that must be “guarded”…

 

Conforti v Bovis Lend Lease, LMB, Inc., 37 AD3d 235, 829 NYS2d 498 (1st Dept 2007);

Cabrera v Revere Condominium, 91 AD3d 695, 937 NYS2d 98 (2d Dept 2012).

 

Conforti found that 1.12(c) is not a catch-all provision that includes the type of power tool at issue; a grinder.

 

Cabrera also found reg inapplicable where π injured while attempting to cut a piece of metal with a hand-held power grinder, since the grinder was not a saw or heavy machinery.

 

 

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