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Appellate Division, First Department
August 13, 2019
Biaca-Neto v Boston Rd. II Hous. Dev. Fund. Corp
Plaintiff’s employer was retained to perform concrete and masonry work. On the day of his incident, plaintiff was tasked with assembling scaffolds. He and a coworker were working on assembly of an exterior scaffold at the 7th floor level of a building being constructed. The platform was reached by a scaffold staircase, which plaintiff used that morning, and a worker could also ascend and descend the scaffold by means of a hoist. According to plaintiff’s coworker, they were instructed to work on the other side of the building.
Rather than descending the scaffold staircase or descending by the hoist, plaintiff’s coworker climbed onto the scaffold’s frame to enter through the window cut-out, which was two steps above the frame of the scaffold. While inside, he observed plaintiff standing on the metal scaffold frame that he just used to enter through the window cut-out when plaintiff said he “popped” his shoulder in pulling himself up the scaffold to follow his coworker through the window cut-out.
Plaintiff’s supervisor testified the interior of the building was easily reached by a worker descending the scaffold staircase, then ascending interior stairways to whichever level inside the building was the destination. The Assistant Project Manager testified that window cuts on the building were designated as safety control zones where workers were not allowed, absent permission from a work site safety manager, and that workers specifically were not allowed to enter the interior of the building from a scaffold through a window, but, rather, were supposed to descend the scaffold staircase and enter the building. He further testified he was unaware workers used such a shortcut and any worker who climbed through a window would have been removed from the job. He also heard the daily site safety manager, during a weekly meeting, give an instruction that workers were not allowed to enter the building’s interior through any window.
Plaintiff’s account as to how his accident occurred changed over time. His new theory before the trial court was that he climbed onto the scaffold frame to enter the building through the window cut-out and he fell backwards and injured his spine and shoulders, eventually requiring spinal fusion and rendering him unable to return to work. At his deposition, he claimed that he slipped as he stepped from the beam to the window and fell onto the platform, hitting his head and dislocating his shoulder.
The trial court denied plaintiff’s partial summary judgment motion as to liability on his Labor Law § 240(1) claim and granted defendants’ motion for summary judgment dismissing the complaint because defendants demonstrated as a matter of law that plaintiff’s injury was not proximately caused by a violation of the statute and his actions were the sole proximate cause of his injuries.
 Labor Law § 240(1) (DRA)
The majority held plaintiff’s deposition testimony stating his injuries were caused by a fall is contradicted by his earlier statements made to coworkers immediately after the incident and recorded in the accident report, emergency room report, and plaintiff’s workers’ compensation form. The majority explicitly rejected plaintiff’s “new contradicted testimony” and disregarded it although the dissent attempts to reconcile the contradictions between plaintiff’s statements as recounted by several others and recorded in various report and his deposition testimony.
The majority could not find any evidence of any demonstrable defect in the scaffold itself or that plaintiff’s alleged injuries were related to unavailable safety devices. Even if plaintiff’s version of his accident is accepted as true, it fails to connect to any defect in a required safety devices such that plaintiff’s decision to climb onto a beam seven feet above the platform to enter an interior location where he was not working by a means he conceded he knew was inappropriate, when the obvious, safe and compliant means of egress was the scaffold’s stairway, which he himself had assembled, did not implicate the extraordinary protections under Labor Law § 240(1).
Justice Moulton’s dissent as he deems it enough that the scaffold was inadequate to provide safe ingress into the building’s interior through the window cut-outs, a purpose for which the record shows it was used by workers on this job. Thus, the scaffolding was not “so constructed, placed and operated as to give proper protection to a person so employed” and finds a question of fact whether the safety device provided adequate protection to workers from gravity-related risks.
Because of the contradictions between plaintiff’s unsworn statements and deposition testimony, the dissent also finds triable issues of fact whether plaintiff was the sole proximate cause of his injury, noting there is no evidence from defendants’ witnesses that the workers on this site were instructed not to enter the building from the window openings.
PRACTICE POINT: Where, as here, there are two versions of the incident, and both of them, at least for the majority, support a finding that the Labor Law does not apply, the case will be dismissed. The fact that there are different versions of how the injury occurred does not preclude summary judgment being granted in this instance. The point made was that even though the dissent found that the scaffold did not provide protection to a plaintiff climbing through a window opening, that the plaintiff had been told not to climb through. The majority rejected the dissent position that “a defendant must anticipate that a worker will disobey instructions and accordingly must undertake to provide additional precautions to safely facilitate the prohibited conduct. Labor Law § 240(1), which imposes safety requirements to protect workers exposed to elevation-related risks within the scope of their employment, imposes no such obligation on owners and general contractors [or defendants]. As a practical matter, such a non-statutory obligation would be unreasonably open-ended, requiring defendants to anticipate and address any number of potential areas of what must be seen as misconduct by workers, and then imposing strict liability should any be overlooked” and granted summary judgment to the defendant as it was the plaintiff’s decision, and the sole proximate cause of the accident, to ignore the stairs built into the scaffold and attempt to climb into a window opening. This is a case I think you will see cited a lot in the coming years.
 Labor Law § 241(6) (MAS)
In support of this claim, plaintiff relied on Industrial Code (12 NYCRR) regulation § 23-1.7(d), which requires that an employer “not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition.” The First Department affirmed the trial court’s finding that regulation § 1.7(d) clearly does not include a crossbar, such as the one from which plaintiff allegedly slipped, because structural crossbars that hold scaffold together are not “working surfaces” required for standing or walking. Justice Moulton agrees with defendants’ alternative grounds for dismissal of the Labor Law § 241(6) claim as those regulations cited by plaintiff are either too general or in apposite.
 Labor Law § 200 and Common-Law Negligence (ESB)
The Appellate Division, First Department held, because plaintiff’s actions were the sole proximate cause of his injuries, the claims for violation of Labor Law § 200 and common-law negligence also were properly dismissed.
On dissent, Justice Moulton agreed that Labor Law § 200 and common-law negligence properly were dismissed, but relied on the alternative grounds stated by defendants as there was no evidence the Boston Road defendants had authority to supervise or control the means and methods of the work.
Arch Ins. Co. v Nationwide Prop. & Cas. Inc. Co.
August 17, 2019
Appellate Division, First Department
Arch sought to recover money incurred in settling a personal action against the owner, One Astoria and contractor, Criterion (the Owners). S & J was the plumbing, sprinkler, and HVAC subcontractor retained to clean up rubbish and waste caused by its operations. Under its subcontract, S & J was required to indemnify Owners “[t]o the fullest extent permitted by law” against claims, damages, etc. for personal injury or property damage” caused in whole or in part by [S & J’s] negligent acts or omissions.” S & J was further required to procure insurance naming Owners as additional insureds (AI).
Nationwide issued a primary commercial general liability (CGL) policy to S & J with a $1 million per occurrence limit and provided additional insured coverage but only for liability “caused, in whole or in part,” by S & J’s acts or omissions in the performance of its work. Nationwide also issued an umbrella policy with an additional $5 million limit in the excess of the underlying CGL limits and “any other collectible insurance.”
After one of S & J’s employees filed a lawsuit in Kings County against the Owners alleging violations of the Labor Law and common-law negligence after he allegedly was injured on the job, Arch assigned counsel to represent the Owners. Arch also tendered the defense and indemnification to Nationwide, who accepted the letter without a reservation of rights. The case thereafter settled, with Nationwide contributing $1 million and Arch contributing $950,000. Arch then filed this action to recover from Nationwide the amounts Arch had contributed.
After a nonjury trial, the trial court found the AI coverage available to the Owners included both the $1 million primary policy “and the $5 million excess limits with respect to contractual liability which S & J had pursuant to” S & J’s contractual obligation to indemnify Owners.
 Indemnity Issues in Labor Law (SEP)
The First Department unanimously affirmed, finding the record establishes that the Owners were not negligent and were only vicariously liable. With respect to S & J’s negligence, testimony at trial showed that the nonparty masonry subcontractor, FASA, had not been working in the basement for months prior to the accident and that S & J broke through the masonry to perform its work. Thus, the only party that was negligent was S & J. Since the Owners were entitled to contractual indemnification from S & J and a complete pass through of liability, the Nationwide umbrella policy issued to S & J must be respond to before the Arch primary policy.
Encalada v Riverside Retail, LLC
August 7, 2019
Appellate Division, Second Department
Prior to the expiration of time to notice independent medical examinations (IME) in this Labor Law action, plaintiff filed a note of issue. The trial court denied NIMA’s and R&B’s motions to vacate the note of issue but granted the motion to compel plaintiff to submit to an IME. After plaintiff failed to appear or answer the vocational rehabilitation (voc rehab) exam notice, the trial court granted defendants’ motion to compel and directed plaintiff to appear for the voc rehab exam.
Labor Law § 240(1) (DRA)
The Second Department affirmed as defendants demonstrated that plaintiff was refusing to voluntarily cooperate with a court-ordered examination and the trial court providently exercised its discretion in granting defendants’ motion under CPLR § 3124 to compel plaintiff to submit to voc rehab examination.
PRACTICE POINT: Not that hard to figure out; when the court orders you to do something, you should do it.
Tucker v New York State Thruway Auth.
August 21, 2019
Appellate Division, Second Department
NYSTA contracted with TZC to construct the new Tappan Zee Bridge. On the day of his incident, claimant was employed by TZC as a cement mason on the project and allegedly was injured when he lost his footing after the ladder upon which he was descending suddenly shifted and his left arm became hooked on a rung or railing. The trial court denied claimant’s motion for leave to file a late claim alleging violations of Labor Law § 240(1) and 241(6).
Labor Law § 240(1) (DRA)
In considering whether to allow a claimant to file a late claim, the factors are whether the delay in filing was excusable, the State had notice of the essential facts constituting the claim, the State had an opportunity to investigate the circumstances underlying the claim, the claim appears to be meritorious, the State is prejudiced, and the claimant has any other available remedy. The Second Department affirmed the Court of Claims’ finding that claimant failed to demonstrate a reasonable excuse for their failure to file timely claims, failed to demonstrate that NYSTA had an opportunity to investigate their claims, and failed to sustain their initial burden of establishing that NYSTA would not be substantially prejudiced by the filing of untimely claims.
PRACTICE POINT: Motions to extend the time to file the Notice of Claim have historically been granted with minimal showing of excuse for the late filing but the trend does appear to be turning and more often the motion to extend the time is being denied. It is well worth the effort and time to oppose such a motion, potentially ending the case, at least for the municipal defendant.
Gurewitz v City of New York 1
August 28, 2019
Appellate Division, Second Department
Plaintiffs, employees of NASDI, allegedly were injured while performing construction work at the St. George Ferry Terminal in Staten Island. Plaintiffs were walking along the perimeter of the site when a temporary chain-link fence, which had been installed by Conti, to protect the public from the site, was blown over by the wind and struck them. Conti was the general contractor and project manager who hired NASDI as a subcontractor to demolish and remove the existing concrete bus ramps. HAKS was retained by the City to perform resident engineering inspection services.
Plaintiffs sued the City defendants, Conti, and HAKS. The City defendants and Conti then filed a third-party action against NASDI. The trial court (1) granted plaintiffs’ motion for summary judgment on the issue of liability under Labor Law § 240(1) against the City defendants and Conti as well as under § 241(6) based upon violations of two Industrial Code regulations; (2) denied the City defendants and Conti’s cross-motion seeking dismissal of the §§ 240(1), 241(6), 200 and common-law negligence claims; (3) denied the City defendants and Conti’s cross-motion seeking contractual and common-law indemnity again at HAKS; (4) denied HAKS’ motion for summary judgment on its contractual and common-law indemnity claims against Conti; and (5) denied NASDI’s motion for summary judgment dismissing the third-party complaint.
Labor Law § 240(1) (DRA)
The Second Department reversed the trial court as the record demonstrated that the chain-link fence was not an object being hoisted or an object that required securing for the purposes of the undertaking, and that the fence did not fall because of the absence or inadequacy of an enumerated safety device. As a result, the trial court should have denied plaintiffs’ motion for summary judgment and granted dismissal of this claim against the City defendants and Conti.
PRACTICE POINT: When the claim is for a falling object in a §240(1) case the object must be, as described above, either an object being hoisted or an object which required securing. A fence is not such an object.
Labor Law § 241(6) (MAS)
Plaintiffs relied on Industrial Code regulations 1.7(b)(1), which requires that “hazardous opening[s] into which a person may step or fall” must “be guarded by a substantial cover … or by a safety railing,” and 4.2(h), which requires that “[a]ny open excavation adjacent to a …street …or other area lawfully frequented by any person shall be effectively guarded.” Here, the Second Department held the City defendants and Conti established their entitlement to dismissal of this claim by demonstrating a protective railing was installed, which prevented Gurewitz from falling into an opening, and, in any event, any violation of either regulation was not a proximate cause of his injuries because he did not fall into a hazardous opening or open excavation. Thus, the trial court should not have granted plaintiffs summary judgment and should have dismissed this claim.
Labor Law § 200 and Common-Law Negligence (ESB)
The Appellate Division, Second Department affirmed denial of the City defendants’ motion for summary judgment as to Labor Law § 200 and common-law negligence. It held the City defendants failed to meet their prima facie burden of demonstrating they did not create, or have actual or constructive notice, of the dangerous condition which allegedly caused the plaintiff’s injuries.
Indemnity Issues in Labor Law (SEP)
In reversing the trial court, the Appellate Division started by addressing the long-settled rule that contractual indemnity provisions must be strictly construed. The contract at issue provided that NASDI was required to indemnify Conti and the City defendants for losses which occurred as a result of NASDI’s own negligence. When NASDI demonstrated that the incident giving rise to plaintiff’s injuries did not arise from its negligence, it established its right to summary judgment.
Further, to the extent Conti sought recovery for common law indemnification, any such claim should have been dismissed where the evidence established that plaintiff did not sustain a grave injury as that term is defined under Section 11 of the Workers’ Compensation Law.
Gurewitz v City of New York 2
August 28, 2019
Appellate Division, Second Department
Same facts as previous case. After determining the summary judgment motions, the trial court denied plaintiffs’ motion to bifurcate the trial and directed a separate damages trial for each of the three actions that were previously consolidated. The trial court also denied the City defendants’ cross-motion for leave to amend their answer to assert cross-claims against Conti for contractual and common-law indemnification and breach of contract for failure to procure insurance.
Labor Law § 240(1) (DRA)
The Second Department affirmed, as plaintiffs failed to establish that bifurcation and separate damages trials would assist in clarification or simplification of the issues or a more expeditious resolution of the action. The Court also affirmed denial of the City defendants’ cross-motion because Conti demonstrated that it would be prejudiced by the late amendment since it had not conducted discovery relating to the cross-claims, had relied upon the original answer to its prejudice by foregoing questioning of witnesses during depositions, and thus had been hindered in the preparation of its defense.
PRACTICE POINT: While many downstate courts routinely bifurcate liability and damages trials, the standard remains that bifurcation is appropriate only when it would assist the jury by clarifying or simplifying the issues. It is the burden of the moving party to establish that bifurcation would meet that standard. While leave to amend is to be freely granted the exception is where it would prejudice a party. Where, as here, the requested amendment and addition of a wholly new claim for indemnity would prejudice the defendant as all discovery was conducted and that claim was not explored during depositions or other discovery. That, said the court, established prejudice and the amendment was not granted.
Pelonero v Sturm Rooking, LLC
August 22, 2019
Appellate Division, Fourth Department
Plaintiff allegedly was injured after a fall at a roofing worksite. The trial court granted plaintiff’s summary judgment motion for liability under Labor Law § 240(1) against defendant.
Labor Law § 240(1) (DRA)
The Fourth Department reversed as the deposition testimony of defendant’s owner stated plaintiff was not working for defendant in any capacity, and defendant was not the contractor for the job on which plaintiff allegedly was injured. Therefore, the Court held plaintiff failed to eliminate all triable issues of fact whether he was a worker and whether defendant was an owner or contractor under the statute. Moreover, plaintiff introduced his testimony that he fell off a pick on which he was walking, and defendant would not be liable under the statute if plaintiff merely lost his balance and fell off a ladder. Accordingly, the Court held the conflicting versions of how the incident occurred, including plaintiff’s own conflicting statements, results in denial of plaintiff’s motion.
PRACTICE POINT: Once again we have differing versions of how the accident occurred, but this time one version provides the plaintiff with the protection of the labor law and the other does not. This always sets up a question of fact which can only be determined by a jury, the trier of fact, and not the court, the trier of law.
Labor Law § 241(6) (MAS)
The Fourth Department reversed the trial court and denied plaintiff summary judgment on this claim because neither the complaint nor bill of particulars sets forth any specific Industrial Code regulations allegedly violated by defendant.
Labor Law § 200 and Common-Law Negligence (ESB)
The Appellate Division, Fourth Department found that plaintiff failed to meet his burden of proof on either the dangerous condition or manner and methods theory of liability. Plaintiff failed to demonstrate the defendant had control over the worksite or that it created or had actual or constructive notice of the dangerous condition. Nor did plaintiff demonstrate defendant had the authority to supervise and control the methods and manner of plaintiff’s work, and that it exercised that control. Therefore, plaintiff’s motion should have been denied.
Preston v APCH, Inc.
August 22, 2019
Appellate Division, Fourth Department
Decedent and a coworker were welders employed by Alstom assigned to participate in the assembly of a rotor compartment weighing five tons at a plant owned by defendant APCH. The rotor compartment was being assembled to fulfill Alstom's contract with a customer that owned and operated a power plant in New Hampshire for the replacement of certain components of the customer's air preheater. Decedent was positioned in front of the rotor compartment and was comparing his welding work with that of the coworker when the rotor compartment fell from its stands thereby pinning him to the floor and causing his death.
Labor Law § 240(1) (DRA)
The Fourth Department affirmed; finding that defendants thus established that decedent was not engaged in a covered activity under Labor Law § 240(1) inasmuch as he was performing his "customary occupational work of fabricating" and welding a rotor compartment "during the normal manufacturing process" at the plant in Wellsville, and was not involved in the construction project in New Hampshire nor involved in renovation or alteration work on the plant in Wellsville. The Court agreed that, as Plaintiff asserted, the part being manufactured was custom and not a uniform design, however, such custom manufacture was the business of the employer. The Court agreed with defendants that the contract language did not control the analysis of § 240(1) applicability; the actual work being performed is what the Court must consider.
PRACTICE POINT: That all aside, the real issue here is that the § 240(1) case was appropriately dismissed as the plaintiff was actually involved in manufacturing, not construction, even where the term construction was used in the contracts. Thus, the activity of the plaintiff was engaged in at the time of his death was not construction, but rather, manufacturing, despite of the fact that the item the plaintiff was welding would qualify as a structure as it was constructed of component parts.
Note that this is a 3-2 decision and it may be back in front of the Court of Appeals.
Wolf v Ledcor Constr. Inc.
August 22, 2019
Appellate Division, Fourth Department
Plaintiff allegedly was injured on a construction site when the scaffold on which he was standing tipped over. He was standing on a scaffold hanging sheetrock when a wheel on the scaffold fell into a floor drain and caused the scaffold to tip over. The wheel had been placed on top of a plastic curing blanket that had been applied over the newly installed concrete floor and was stretched over the drain hole, and the accident occurred when the wheel ripped through the plastic curing blanket and fell into the hole. Various witnesses testified that, during the installation of a concrete floor, a floor drain should have a temporary cover that would prevent anything from falling into the drain. However, at the time of the incident, the floor drain was covered with a permanent half grate, which had a hole into which the scaffold wheel fell.
The trial court, among other things, granted plaintiff’s summary judgment motion for partial liability under Labor Law § 240(1) and denied defendants’ cross-motion to dismiss the complaint.
Labor Law § 240(1) (DRA)
The Fourth Department affirmed; finding plaintiff met his initial burden of establishing a statutory violation by submitting evidence that the scaffold on which he was standing tipped over because one of its wheels was placed over an open floor drain hole and the fact that it tipped and plaintiff fell to the ground “demonstrates that it was not so placed … as to give proper protection to him.” The Court rejected defendants’ sole proximate cause argument because four witnesses testified a temporary cover should be placed over an open drain during the installation of the concrete floor, and thus, plaintiff established a statutory violation. Even if plaintiff was negligent in failing to observe the drain hole and positioning the scaffold over it, the Court held his actions render him merely contributorily negligent, a defense unavailable under Labor Law § 240(1).
Justice Curran concurs, pointing out the absence of a drain hole cover, which the majority focuses on, is not the statutory violation at issue and could not be the violation in this case because the cover is not a safety device enumerated in the statute and is not a device that protects against elevation-related risks. Justice Curran notes the statute “should be construed with a commonsense approach to the realities of the workplace at issue” and that we should be “careful not interpret the statute in the illogical manner that would be impractical and contrary to the work at hand’.”
PRACTICE POINT: This case has been heard with many variations but when the wheel of a scaffold goes into a hole and the scaffold to tips or moves, causing the plaintiff to fall, it is a § 240(1) case. The exception is when the plaintiff has been instructed to lock the wheels of the scaffold and he fails to do so causing the scaffold to move and plaintiff to be injured.
Labor Law § 200 and Common-Law Negligence (ESB)
The Appellate Division, Fourth Department affirmed denial of Ledcor and Costco’s cross motion for summary judgment as to Labor Law § 200 and common-law negligence. It held this case did not involve the manner and method of the work. Instead, it involved a dangerous or defective condition on the premises, i.e., the open drain in the floor. To obtain summary judgment in a defective condition case, the defendant must demonstrate they did not exercise supervisory control over the general condition of the premises or that it did not create or have actual or constructive notice of the dangerous condition.
The Court found these defendants did not meet their initial burden on summary judgment because their submissions did not establish, as a matter of law, they did not exercise supervisory control over the premises. The evidence demonstrated Ledcor had oversight and control over safety issues on the job, and its superintendent testified it was his job to “oversee the entire project.” Moreover, the evidence also demonstrated Costco’s project manager had safety responsibilities and would advise Ledcor of any safety violations. Therefore, questions of fact existed regarding their supervisory control over the general condition of the premises. Additionally, Costco and Lecor did not deny they had notice of the drain.
Indemnity Issues in Labor Law (SEP)
The Court also dismissed a contractual indemnity claim by Cameron and Hinsdale against Costco. At least insofar as Cameron’s motion was concerned, the documentary evidence established that Cameron was not party to any contract with Costco. As such, it had no basis to seek any redress based upon the language of Costco’s contract with Hinsdale.
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