Labor Law Pointers

 

Volume VII, No. 7

Wednesday, May 2, 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, send an email, let us help you with your situation. 

 

Today we announce the addition of the eleventh member of our Labor Law team.  Jerry Marti has joined Hurwitz & Fine and he brings with him 20 years of experience, quite a bit of that in labor law.  Welcome to the team Jerry.

 

I think I will take this opportunity to introduce our team.  We have two distinct areas of focus on the team.  There is the pure labor law side, where we defend the 240(1), 241(6), 200 claims along with the contractual and common law indemnity and contribution claims.  Then there is the coverage side where we borrow from the extensive experience out coverage department adds to the team. 

 

On the labor law defense and risk transfer side we have myself along Marc Schulz, Eric Andrew, Chris Potenza, Ashmita Roka and now Jerry Marti in the Buffalo office and Brian Mark in the NYC metro office.  We have a quickly growing clientele in the NYC metro area now that we have a labor law attorney in that office.  While the rest of us travel down there regularly, it is very nice and cost effective, to have a labor law attorney right there for appearances in the city.  Discovery and motion writing can be shared between the offices and we can reallocate resources as needed depending on the case.

 

On the coverage and contractual side we have Dan Kohane who needs no introduction, he is a coverage god.  Steve Peiper, Dan’s right hand, and Jen Ehman are on board in Buffalo to look at the coverage portion of the cases and Howard Altman in the metro office round out the team. 

 

We are available across the state to help with any labor law or risk transfer issues you may have.  We have even been known to lure Jamey Maswick out of his office in Lake Placid to help with labor law cases in the North Country.  Jamey tries to pretend he does not have experience in labor law but we found out differently, he is well versed and talented to boot.  In fact Jamey has a guest column in this edition on a new Court of Appeal case allowing liability findings without addressing the plaintiff’s liability.

 

Now onward to the fun part of the newsletter, the pictures.  In the photo below the safety devise the soon to be plaintiff is using is obviously destined to fail.  The question is whether or not it is a labor law case when it happens.

 

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The answer to that question depends to some degree what is considered to be a safety devise and what fails.  If the co-worker drops him is that a 240(1) case.  I say yes.  A person is not and cannot be an appropriate safety devise.  Thus, if plaintiff falls due to failure of his co-worker, it is clearly a labor law case.  What if the plank shifts and then the co-worker drops the plaintiff.  Then the insufficient scaffold shifted, causing the plaintiff to fall and again it is a labor law case.  Just looking at this set up makes my head hurt, though not necessarily as much as his is going to. 

 

As a last question, is there any potential for a sole proximate cause defense when he falls?  My take is no, even if he was told specifically not to sit on his co-workers shoulder who is standing on a narrow plank with no side rails, set on the top of a step ladder without being attached in that position, while the step ladder is balanced on four paint buckets (and not secured there either) while the other end of the plank is set on a saw horse and also not attached while the plank sags from the weight, a likely scenario he is often told to avoid, there is still no sole proximate cause defense.  Why you may ask, he was told not to do exactly what he did, isn’t that sole proximate cause or recalcitrance?  Not in this case as the plaintiff could not be the SOLE proximate cause as his co-worker is involved and thus the co-worker is also a proximate cause eliminating mathematically any possibility that the plaintiff could be the SOLE proximate cause.

 

I want to remind our readers about our 24 hour Emergency Response team.  A call to our office will have an attorney lead team to the accident location quickly to preserve evidence, obtain statement and start a thorough investigation which, as it is attorney work product done in anticipation of litigation, is privileged and protected.  I have been on 2 such investigations this month.  One was for a trucking accident and one for a potential labor law accident.  We are here to help any time, any place.

 

As always, feel free to reach out to any of us with questions or comments; do so love the challenge and the opportunity to help our colleagues.

 

It appears spring may actually be arriving in Buffalo, the last of the ice is gone from the lake and grass is growing.  Happy spring to all, see you all next month.

 

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.

 

Somereve v Plaza Constr. Corp.

April 3, 2018

Court of Appeals

 

Plaintiff was operating a prime mover (mini-forklift) to hoist a load of bricks weighing about 1,500 pounds onto scaffold five feet off the ground, when the prime mover flipped forward and plaintiff was ejected upward, hitting the ductwork/ceiling before he “slammed” onto the concrete.  Before defense counsel completed depositions of potential witnesses identified by plaintiff and a supervisor, the trial court granted plaintiffs’ motion for summary judgment on the Labor Law § 240(1) claim. 

 

The First Department majority affirmed the trial court’s decision, citing to Runner v New York Stock Exch., Inc. because plaintiff was using the prime mover to hoist a load.  

 

Labor Law § 240(1) (DRA) 

 

The Court of Appeals held there was insufficient evidence concerning how the accident occurred, the requested discovery could aid in establishing what happened, and the note of issue was not due to be filed for another six months, and therefore, summary judgment was prematurely granted.

 

PRACTICE POINT:  This case is important as it points out that where there is additional evidence available concerning how the accident occurred, that Summary Judgment would be premature.  We see more and more Summary Judgment motion very early in discovery, and some judges have ben granting them.  This will help to fight back on that trend.

 

 

 

Rodriguez v City of New York

April 3, 2018

Court of Appeals

 

Plaintiff is not required to establish the absence of their own comparative negligence to triumph on a partial motion for summary judgment on liability.

An article form guest columnist Jamey Maswick in our Lake Placid office.

This is Decision from the Court of Appeals that will potentially have far-reaching effects with how attorneys litigate personal injury cases going forward. 

The facts of this case are largely undisputed:  Plaintiff, a New York City Department of Sanitation employee, was working to attach snowplows and chains to the tires of trucks.  Typically, in teams of three, the driver would back up the truck with a guide positioned on the passenger side of the truck, with the third team member placing the chains on the truck with the help of the driver and guide once the truck was parked (the third member of the team was the plaintiff).  Plaintiff was standing between a parked Toyota Prius and some tires while the guide stood on the driver’s side of the truck and helped back the truck in.  The truck started skidding, crashed into the Prius and pinned plaintiff between the Prius and tires, causing him to suffer serious personal injuries.

Plaintiff brought an action against the City of New York and then moved for partial summary judgment on liability.  The Supreme Court denied his motion, indicating that there were triable issues of fact regarding foreseeability, causation and plaintiff’s comparative negligence.  The Appellate Division held that plaintiff was not entitled to partial summary judgment on liability because the plaintiff had not made a prima facie showing that he was without comparative fault.  A dissent held that plaintiff was not required to make a showing that he was free from comparative fault, as this was not his burden.  Permission was granted to the plaintiff to appeal to the Court of Appeals with a certified question as to this issue.

Before we explore the Court of Appeals’ Decision and the dissent, please allow me to take the opportunity to explain how, at trial, liability issues would be handled.  A jury, having heard the case at trial, would receive what is known as a verdict sheet, which is a series of questions that the attorneys representing the plaintiffs and defendants have either agreed on or convinced the Court are the correct questions to ask.  The questions in a negligence-based personal injury action will generally ask if the defendant was negligent.  If the jury finds that the defendant was negligent, the jury will be asked to determine if the defendant’s negligence was a substantial factor in causing the injuries to the plaintiff.

In many cases, plaintiff may have taken some actions which contributed to their injuries.  For example, think of a plaintiff who is injured in a slip and fall accident where the plaintiff alleges s/he fell because of snow and ice.  Or think of a motor vehicle accident where the plaintiff is injured because a defendant ran a stop sign, but plaintiff had faulty brakes on plaintiff’s car and evidence is presented that s/he could have prevented the accident if the brakes worked properly.  In cases where appropriate, if the jury finds that plaintiff’s own conduct was negligent and played a role in causing plaintiff’s injuries, the jury will be asked to attribute 100% of the fault between the plaintiffs and defendants in any way it believes accurately represents the fault for the accident.  These percentages, if not 100% on the defendants, are used to reduce the money damages to the plaintiff in a successful action.

In Rodriguez, the Court of Appeals framed whether a plaintiff on a motion for partial summary judgment on liability as a statutory question.  While noting that it was the plaintiff’s duty to establish that there is no defense to the cause of action under CPLR 3212, the Court noted that CPLR 1411 specifically stated that plaintiff’s culpable conduct would not bar recovery, but would diminish the amount of damages proportionally that the plaintiff would recover.  The Court found that this would inappropriately place the burden on the plaintiff with proving the absence of culpable conduct in a personal injury action on a partial motion for summary judgment on liability.  The Court would advise a jury that the question of defendant’s negligence had already been judicially determined and the jury would be just asked to determine if plaintiff’s own culpable conduct, if any, would cause the amount of recovery to be diminished. 

The dissent, written by Judge Garcia, is a full-throated rejection of the majority’s decision, highlighting many real litigation world consequences of the majority’s Decision.  First, the dissent makes the not-insignificant point that the Appellate Division stated "[u]nder this factual scenario, the trier of fact could determine that defendant was free from negligence and that plaintiff was 100% at fault in causing his injuries" (emphasis as provided in the dissent).  The Appellate Division stated that it believed that here, a jury could find the defendant was not negligent in the least, but now would be required to find the defendant was at least partially negligent for the injuries caused.

The dissent also noted that the majority was reversing the precedent that virtually all Appellate Divisions had been following for years, save for a minority of Judges from the First Department.  The Legislature, though aware of how the rule had been applied over the years, has declined to change the law to what the majority has now molded.  Though a bill had been advanced previously, it has not been passed – the minority asks why it would have been necessary at all if this is what the Legislature had intended?

Judge Garcia also noted that any benefits of judicial economy would be illusory in nature; despite the fact that a plaintiff’s successful motion for partial summary judgment would eliminate the questions of defendants’ negligence, the very fact that plaintiff’s culpable conduct would need to be evaluated by a jury would require a full recitation of the facts of the case for the jury, deriving no time-saving benefits for the Court.  Further, the risk of the Court getting it “wrong” – a judicial determination that the defendant was negligent when the jury did not agree – made this approach unfair to defendants.  Lastly, the minority interpreted Article 14-A differently, rejecting the majority’s view that the existing statutes required the majority’s interpretation to be followed.

Maybe I am biased with a career spent primarily defending personal injury cases, but the dissent makes strong points – there will be no time savings at trial if there is a hint of culpable conduct on the part of the plaintiff and the entire case will have to be presented for jury evaluation.  Additionally, what if a jury finds that despite the judiciary’s determination that the defendant is liable, it does not believe that the defendant is liable for the plaintiff’s injuries?  Will the Court require 1% as a minimum threshold basis on the defendant who had a motion for partial summary judgment on liability ruled against her? 

In effect, this Decision, in a number of cases, may shift the job of finding whether a defendant was negligent and a substantial factor in causing the plaintiff’s injuries from the jury to the Judge. 

It seems a likely proposition that in the immediate aftermath of this Decision, there will be more plaintiffs’ attorneys moving for summary judgment.  The Court of Appeals has given them a significant inducement to do so and with little but time to lose, moving for partial summary judgment regardless of what your plaintiff-client did would seem to be a strong litigation tactic currently.  If partial summary judgment on liability is granted, it may lead to more settlements of questionable cases where the plaintiff helped cause his own injuries. 

For now, we wait to see the impact on cases in Court and whether the Legislature believes this ruling requires a legislative fix.

 

 

 

 

Jarzabek v Schafer Mews Hous. Dev. Fund Corp.

April 3, 2018

Appellate Division, First Department

 

Plaintiff, an electrician, allegedly fell from a makeshift wooden ladder while negotiating the distance between the first-floor slab of the building under construction and the ground about five feet below. He was helping unload a delivery of supplies that was being unloaded from the truck on ground level and placed on the slab. Although plaintiff had been provided an A-frame ladder that morning which was in the basement of the building, there is nothing to contradict plaintiff's testimony that he could not use it to access the slab as the ground was covered in dirt, debris, and rocks. 

 

The trial court granted plaintiff's motion for summary judgment on his Labor Law § 240(1) claim, granted defendants owners’ motion for summary judgment on their contractual indemnification claim against third third-party defendant, denied summary judgment on the claims for common-law and contractual indemnification against second third-party defendant Rocky's, and granted Rocky's motion for summary judgment dismissing all claims, cross claims and counterclaims as against it.

 

Labor Law § 240(1) (DRA) 

 

The First Department held plaintiff's decision to use the makeshift ladder that his coworkers were also using was not the sole proximate cause of the accident because he was never instructed not to use it. The Court also noted that since no proper safety device was provided, coupled with the fact that plaintiff’s boots may have been untied or that he may have been descending the makeshift ladder backwards, plaintiff was not the sole proximate cause of his accident.

 

PRACTICE POINT:  Remember that where there is more than one cause of an accident, than no one reason can ever be the SOLE proximate cause. 

 

 

Indemnity Issues in Labor Law (SEP)

 

No negligence, no problem.  Here, Owners established that plaintiff’s employer, Demand, supervised the means and methods of plaintiff’s work at the time of the accident.  As such, it followed that Owners established themselves free of negligence, and accordingly entitled to contractual indemnity. 

 

Owners also had a second third-party against Rocky’s which sought common law and/or contractual indemnity.  As there was a question of fact governing Rocky’s negligence, summary judgment dismissing the claims against it was premature.

 

 

 

Harrigan v G-Z/10UNP Realty, LLC

April 5, 2018

Appellate Division, First Department

 

Plaintiff fell when the scissor lift he was operating toppled over. The lift's tilt alarm failed to sound, and the lift failed to shut down automatically when the lift unsafely tilted, contrary to the design of the machine. The trial court granted plaintiffs' motion for partial summary on the Labor Law § 240(1) claim.

 

Labor Law § 240(1) (DRA) 

The First Department held plaintiff established prima facie that he had not been provided with adequate protection from an elevation-related risk pursuant to the statute by submitting evidence that the scissor lift malfunctioned causing his fall. In opposition, the Court held defendants failed to raise an issue of fact as to whether the statute was violated because their evidence was found to be relevant only to comparative negligence, which is not a defense to Labor Law § 240(1).

PRACTICE POINT:  These product liability/labor law cases can get complicated.  Here the plaintiff seems to have had a rather straight forward labor law case and did not bother with the products case.  Where a safety device fails, as the lift did here, it is an easy Summary Judgment labor law case.  The issue then is whether or not starting a third party labor law case is viable, or cost effective.

 

 

 

Tuzzolino v Consolidated Edison Co. of N.Y.

April 24, 2018

Appellate Division, First Department

 

Plaintiff allegedly fell when the unsecured ladder on which he was standing suddenly slipped out from under him. The trial court denied plaintiff's summary judgment motion on his Labor Law § 240(1) claim, and denied defendant’s summary judgment motion to dismiss that claim. The trial court also denied defendant’s motion to dismiss the Labor Law § 241(6) claim predicated on an alleged violation of Industrial Code (12 NYCRR) regulation § 23-1.21(b)(4)(ii).

 

Labor Law § 240(1) (DRA) 

 

The Court held plaintiff established prima facie a violation of Labor Law § 240(1) through his testimony that he fell when the ladder he was standing on suddenly slipped out from under him.    In opposition, the Court rejected defendant’s sole proximate cause argument because there is no evidence that there were other readily available safety devices that was adequate for his work. The Court also found defendant’s expert opinion speculative that the accident was caused by plaintiff’s misuse of the ladder since it was based on a visit to the site nearly two years after plaintiff’s accident.

 

PRACTICE POINT:  Well part of this decision is nothing more that confirmation that an investigation of accident needs to be done very promptly.  The court held that the defendant’s experts’ opinion was speculation as it was based on a visit to the site years later.  While there are times when you don’t know about an accident until years later, if you do know, investigate and get an expert if the case warrants it. 

 

Labor Law § 241(6) (MAS)

 

The First Department affirmed the trial court’s finding of an issue of fact as to whether the accident was caused by a wet condition of the floor at the time that the ladder slipped out from underneath plaintiff, and thus whether Industrial Code regulation 1.21(b)(4)(ii) was violated.

 

McCue v Cablevision Sys. Corp.

April 26, 2018

Appellate Division, First Department

 

Plaintiff allegedly fell from a utility pole while attempting to troubleshoot a cable installation activation that did not work. His supervisor submitted an affidavit asserting plaintiff's sole job functions were as a manager, providing administrative services and training, assessing materials and equipment needed for a job, and occasionally following-up with an activation from ground level only, but that in no event were his duties to entail climbing any poles. 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 issues of fact existed as to whether the aerial work plaintiff contends he was performing when he fell was outside the scope of his employment and thus outside the protection of Labor Law § 240(1). In addition, the Court agreed with the trial court that issues of fact exist as to how the accident occurred because the individual who performed that activation testified plaintiff was not present and he could not recall any problems with the activation which would involve climbing the pole. 

 

PRACTICE POINT:   Where the activity which caused the injury is not a part of the plaintiff’s job function, the labor law does not apply.  The court added that and we will be able to use it in the future.  The question is why, does this indicate a shift I the first towards holding plaintiff’s responsible for their actions which are not a part of their jobs?  There are such cases, but most are in the second.  There was no need for the court to mention that point, as there was conflicting testimony as to whether or not the plaintiff was even on site when he claims to have been injured, which would preclude Summary Judgment no matter what other evidence was presented. 

 

 

Marulanda v Vance Assoc., LLC

April 11, 2018

Appellate Division, Second Department

 

The plaintiff, an employee of the third-party defendant general contractor, allegedly was injured when he fell from a scaffold while engaged in demolition work at a building owned by the defendant. The trial court denied plaintiff’s summary judgment motion on his Labor Law § 240(1) claim, and denied third-party plaintiff’s summary judgment motion on the third-party cause of action for contractual indemnification.

 

Labor Law § 240(1) (DRA) 

 

The Second Department held the trial court should have granted plaintiff’s summary judgment motion as plaintiff established his prima facie entitlement to judgment as a matter of law by demonstrating he was injured when he fell from a scaffold that lacked safety rails on the sides, and that he was not provided with a safety device to prevent him from falling.  In opposition, the defendant failed to raise a triable issue of fact.

 

PRACTICE POINT:  Plaintiff, an person who is “so employed” who is engaged in demolition, falls from a scaffold with no side rails and he was given no harness, who sues the owner of the building or structure.  Imagine my surprise when I read that Summary Judgment was granted.  This is a text book example of a 240(1) case.

 

 

Indemnity Issues in Labor Law (SEP)

 

With regard to the third-party action commenced by Vance against its general contractor, U.S. Team.  In reversing the trial court, the Second Department noted that Vance proffered, in admissible form, a copy of a purchase agreement which contained clear indemnity language. In addition, Vance also established that it was free from any negligence related to the plaintiff’s incident.

 

U.S. Team’s opposition, which the clause at issue was in violation of General Obligations Law 5-322.1 was without merit.  Specifically, Vance’s exposure was purely statutory (by operation of Labor Law 240[1]).  Having no active negligence assigned against it, it followed that Vance was not seeking to be indemnified for its own negligence.  Accordingly, the provisions of the GOL were inapplicable.

 

Garbett v Wappingers Cent. Sch. Dist.

April 18, 2018

Appellate Division, Second Department

 

Plaintiff allegedly was injured after a cast-iron section of a boiler on the school’s property fell and crushed his foot. The school commenced a third-party action against the plaintiff's employer, Siteworks which, at the time of the accident, was servicing the boiler pursuant to its contract with the school. The trial court subsequently struck Siteworks' third-party answer as a sanction for its failure to comply with discovery demands and orders.

 

Labor Law § 240(1) (DRA) 

 

The Second Department found a triable issues of fact existed with respect to whether plaintiff's activity was covered under Labor Law § 240(1). Plaintiff testified that, at the time of the accident, Siteworks employees were disassembling the boiler section by section to fix a leak. However, the head custodian at the school where plaintiff's injury occurred testified that the boiler was disassembled every summer for routine cleaning and refurbishing. The head custodian was also not aware of any problem with the boiler in need of repair when plaintiff was injured. As the record did not otherwise clarify the degree to which boiler sections are “components that require replacement in the normal course of wear and tear”, the Court found a question of fact as to whether the work was routine maintenance.

 

The Court also found triable issues of fact exist with respect to proximate cause because the normal procedure for securing the boiler section was not followed; however, plaintiff testified he was satisfied with the stability of the boiler before it fell. In addition, he and the school both testified the sections do not always need to be secured. The Court also determined the school failed to raise a triable issue of fact as to whether plaintiff was a recalcitrant worker, since it offered no evidence indicating he was provided with certain safety devices, that such devices were readily available for his use, and that plaintiff was specifically instructed to use such devices but chose for no good reason to disregard those instructions.

 

PRACTICE POINT:   Ina falling object case the issue is a simple one, did the falling object require securing.  Here even the p[arties it seems agree that the object that fell, the boiler, may not have required securing to prevent it from falling.  Careful questioning at a deposition, backed by a good understanding of the law before asking your first question, is often the best weapon in defending a labor law case.

 

Indemnity Issues in Labor Law (SEP)

 

With regard to Wappingers indemnity claim, it appears that Siteworks failed to appear and defaulted as a result.  In overturning the trial court, and finding a default judgment, the Appellate Division noted that “a defendant whose answer is stricken as a result of a default admits all traversable allegations in the complaint, including basic allegations of liability…”  Thus, among those allegations admitted was the fact that plaintiff sustained a “grave injury.”  As such, Siteworks potential “exclusivity” defense based upon an application of Workers’ Compensation Law 11 was lost.  Issues of damages, however, remained open regardless of the default. 

 

 

Holguin v Barton

April 18, 2018

Appellate Division, Second Department

 

Plaintiff, an employee of a cleaning services company hired to clean a condominium apartment following a renovation by defendant Morgan Interiors, was directed by her supervisor to clean certain floor-to-ceiling cabinets and given a stepladder and a cloth for this purpose. She claims that while she was standing on the stepladder, dusting the inside of the cabinets, she allegedly fell and was injured.

 

The trial court denied plaintiff's summary judgment on her Labor Law § 240(1) claim, and granted the summary judgment motions of defendants Morgan Interiors, Kathryn Barton and Roger Barton, and Gotham Condominium and Cooper Square Realty, Inc., to dismiss that claim.

 

Labor Law § 240(1) (DRA) 

 

The Second Department held defendants established plaintiff was not engaged in “cleaning” within the meaning of Labor Law § 240(1), and plaintiff’s work did not require specialized equipment, and was unrelated to any ongoing construction or renovation of the apartment.

 

PRACTICE POINT:  This case is a perfect example of how sometimes logic does prevail in labor law cases.  Long time readers will recall my oft mentions of the Dahar v Holland case where the plaintiff was cleaning a manufactured wall which held pipes prior to shipping.  The Court of Appeals held that cleaning in the manufacturing arena was not offered the protection of the labor law.  Then there was the Soto v J. Crew case also from the Court of Appeals, the following year.  There the court also ruled that cleaning in a retail store is not a protected activity.  Here the cleaning was done after the construction was done, required no special equipment and was simply not a protected activity.

 

 

 

Cusumano v AM&G Waterproofing, LLC

April 25, 2018

Appellate Division, Second Department

 

Plaintiff, while performing work for his employer, nonparty Remco, was standing on a ladder when he fell, or as alleged in his Complaint, was “caused to be precipitated to the ground”, and allegedly was injured. Prior to the completion of discovery, defendant AM & G moved for summary judgment dismissing the complaint and all cross claims asserted against it, and submitted, the affidavit of its chief financial officer stating AM & G never contracted any work to Cusumano's employer, Remco, that AM & G completed its work on the project at the subject property and was off the project for at least seven months before plaintiff’s alleged fall, and all its equipment had been removed from the site months before the alleged incident. The trial court denied, as premature, AM & G’s motion with leave to renew upon the completion of discovery.

 

Labor Law § 240(1) (DRA)

 

The Second Department reversed, finding AM & G established its prima facie entitlement to judgment as a matter of law because their evidence established it could not be held liable under any theory of liability asserted in the complaint. The Court held AM & G demonstrated it was not an owner, contractor, or agent with regard to plaintiff’s work, it had no authority to supervise or control his work, did not supply the ladder from which he fell, and had no control over the work site. The Court rejected the opposing argument that it was premature.

 

PRACTICE POINT:  You have to be a valid defendant, an owner, agent of contractor with authority to supervise, direct or control the means and methods of the injury producing work, to be held liable.  But the best part of this case is quite simply the language of the complaint, that the plaintiff was “caused to be precipitated to the ground”.  Extra credit for that.

 

 

 

Ruiz v Ford

April 25, 2018

Appellate Division, Second Department

 

Plaintiff, a Verizon employee, was climbing a ladder supplied by Verizon to access the Verizon optical network terminal located on an interior wall of the building, several feet above an office shed roof that had been built within the garage. Tires were stored on the shed roof. Plaintiff climbed approximately four or five rungs on his ladder when one or more tires fell from the office shed roof, struck the ladder, and caused plaintiff to fall from the ladder to the ground.

 

After the trial court denied defendant landowner’s motion to dismiss the Labor Law § 240(1) claim and after a trial verdict in favor of plaintiff, the trial court entered judgment upon the order in favor of plaintiff and against the landowner.

 

Labor Law § 240(1) (DRA) 

 

The Second Department dismissed the appeal from the order because the right of direct appeal terminated with the entry of the judgment in the action; however, the issues were preserved and argued on appeal of the judgment. The Court reversed the trial court and dismissed the Complaint, determining from the evidence at trial, viewed in the light most favorable to plaintiff, the tires were not materials that were being hoisted or secured for the purposes of the undertaking, nor was it expected, under the circumstances of this case, the tires would require securing for the purposes of the undertaking at the time one or more tires fell. Therefore, “the special protection' of Labor Law § 240(1) was not implicated”.

 

PRACTICE POINT:  Once again in a falling object case the object must be one that required securing and was not secured.  Storing tires on a shed roof is not something that requires securing and thus the case should have been dismissed.

 

 

 

Matter of Wilson v City of New York

April 25, 2018

Appellate Division, Second Department

 

On July 29, 2015, petitioner allegedly was injured when he was struck by a temporary chain link fence he was installing at a construction site. On January 14, 2016, petitioner filed an order to show cause and petition pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim upon respondents. In support of his petition, he submitted an incident report dated July 30, 2015, prepared on the form of respondent SCA, an incident report dated August 13, 2015, prepared by petitioner on an SCA form, and a copy of the proposed notice of claim, alleging respondents were negligent and violated Labor Law §§ 240, 241, 200, Rule 23 (all subsections) of the New York State Industrial Code, and the OSHA regulations. The trial court denied the petition and dismissed the proceeding.

 

Labor Law § 240(1) (DRA) 

 

The Second Department, in affirming the trial court’s decision, found the incident reports were insufficient to provide respondents with actual knowledge of the essential facts underlying the petitioner's claim because these reports merely indicated petitioner injured his shoulder when the temporary chain link fence was blown over by the wind or came down on him as he was working on the fence and made no reference to the claims listed in the proposed notice of claim. 

 

The Court further held petitioner failed to offer any excuse for the failure to serve a timely notice of claim and presented no “evidence or plausible argument” that his delay in serving a notice of claim did not substantially prejudice respondents in defending on the merits. 

 

PRACTICE POINT:  We chose to add this case as so many labor law cases involve municipalities and the Notice of Claim issues are very important.  Here the court denied the request to extend the time to file the Notice of Claim because there had been no appropriate notice to the municipality.  It is often worth the effort to fight motions to extend the time to file the Notice of Claim, even if they are rarely won.  It forces the plaintiff to present his case much earlier, allows for an opportunity to defeat a claim that may not be defensible if appropriately filed, and if it is the first notice do not forget to start your investigation immediately.

 

 

Clause v Globe Metallurgical, Inc.

Decided on April 27, 2018

Appellate Division, Fourth Department

 

A 600- to 800-pound copper contact shoe was being removed from an industrial furnace at defendant’s facility by defendant’s employees, when it allegedly fell from a forklift, striking the metal platform upon which plaintiff was working, resulting in injury. The trial court denied plaintiffs’ summary judgment motion on the issue of partial liability on the Labor Law §§ 240(1), 200 and common-law negligence claims.

 

Labor Law § 240(1) (DRA) 

 

The Fourth Department affirmed as plaintiff failed to meet his burden whether defendant admitted in their answer that plaintiff was engaged in a protected activity under the statute. Further, the Court found an issue of fact whether Labor Law § 240(1) applies, and whether defendant’s alleged violation was a proximate cause of plaintiff’s injuries.

 

PRACTICE POINT:  Plaintiff tried to use the language of a contract to establish that the work being done was specifically of the type that is protected by the statute.  The court saw that this was an attempt to boot strap the identification of the contract and make it into an admission.

 

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

 

Without further opinion, the Fourth Department concluded that the trial court properly denied those parts of plaintiffs' motion with respect to the Labor Law § 200 claim and common-law negligence cause of action.

 

Weitzel v State of New York

April 27, 2018

Appellate Division, Fourth Department

 

Plaintiff allegedly was injured as a result of a fall while he was sandblasting paint from the underside of the Route 179 overpass of the New York State Thruway. To perform the work, a truck was parked underneath the overpass. The truck had fold-out wings to provide a platform for the blasters, and aluminum scaffolding, which had no guardrail, erected on the truck’s wings. Plaintiff, however, was provided with safety equipment, including a safety harness with a six-foot lanyard. While blasting one evening, plaintiff fell 15 feet to the pavement. His safety harness was not tied off. The Court of Claims denied plaintiff’s summary judgment motion on his Labor Law § 240(1) claim and he appealed arguing the lack of guardrails alone warranted summary judgment in his favor.

 

 

Labor Law § 240(1) (DRA) 

 

The Fourth Department held claimant failed to meet his initial burden because his own evidentiary submissions create an issue of fact whether his conduct was the sole proximate cause  of the accident as he acknowledged in his deposition that he had a safety harness with a six-foot lanyard, that he had previously used it on the same job, and he “probably” could have tied it off to the cross-bracing prior to his fall. Further, he testified that, if he had tied his six-foot lanyard off to the cross-bracing, he “wouldn’t have fallen” fifteen feet to the pavement. “Those factual findings would lead to the conclusion that defendant[s have] no liability under Labor Law § 240(1)”, and the Court therefore properly denied claimant’s motion.

 

PRACTICE POINT:  Where the plaintiff himself testifies that he was supplied a safety device which would have prevented his injury it can create a question of fact as to whether the plaintiff was the sole proximate cause of his own injury.  The more interesting issue here is that this is the Court of Claims, so no jury will determine the final outcome, it will be the same judge who found a question of fact.

 

 

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)(1), requires that portable saws not provided with saw tables have fixed guards above the base plate and removable self-adjusting guards below the base plates, is sufficiently specific to support a Labor Law § 241(6) claim.

 

Haider v Davis, 35 AD3d 363, 827 NYS2d 179 (2d Dept 2006);

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

Opalinski v New York, 110 AD3d 694, 972 NYS2d 320 (2d Dept 2013);

Kruk v New York, 112 AD3d 518, 977 NYS2d 233 (1st Dept 2013).

 

Haider found reg. sufficiently specific to support a Labor Law § 241(6) claim.

 

Cabrera held 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.

 

Opalinski held reg. relates to power-driven saws, and not grinders.

 

Kruk held reg. does not require provision of saw table.

 

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Labor Law Team

 

            David R. Adams, Team Leader                                              Steven E. Peiper

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            Dan D. Kohane                                                                       Jennifer A. Ehman

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            V. Christopher Potenza                                                          Ashmita Roka

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