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Coombes v Shawmut Design & Constr.
September 10, 2019
Appellate Division, First Department
Plaintiff, an electrician, was injured when he fell from an elevated concrete platform on his work site that allegedly did not have safety rails or stairs, and over which he was repeatedly required to traverse to access an electrical panel to do his work. The trial court denied plaintiffs’ motion for summary judgment on liability under Labor Law §§ 240(1) and 241(6), and granted defendants/third-party plaintiffs Shawmut’s and Apple’s, and third-party defendant/second third-party plaintiff Rockmor’s summary judgment motions seeking dismissal of the complaint.
 Labor Law § 240(1) (DRA)
The First Department unanimously revered the trial court’s finding that the accident fell within the ambit of Labor Law § 240(1), because plaintiff's injuries were the direct consequence of a failure to provide adequate protection, such as a guardrail or stairs, to prevent the risk posed by the physically significant elevation differential.
PRACTICE POINT: It is a common misconception that a lack of guardrails or other safety devices on permanent walkways or stairs does not create a violation; it does. Had the plaintiff simply fallen down permanent stairs then it is likely not a labor law violation.
 Labor Law § 241(6) (MAS)
The First Department affirmed the trial court’s dismissal of this claim because each of the Industrial Code (12 NYCRR) regulations relied on by plaintiffs is either inapplicable or too general to give rise to liability under Labor Law § 241(6).
 Labor Law § 200 and Common-Law Negligence (ESB)
The First Department held plaintiff’s claims pursuant to Labor Law § 200 and common-law negligence should not have been dismissed on summary judgment. As those claims were based on Shawmut’s alleged notice and failure to remedy the dangerous condition of materials stored haphazardly on the platform where plaintiff fell, summary judgment in favor of defendants was precluded.
Castro v Malia Realty, LLC
September 11, 2019
Appellate Division, Second Department
Plaintiff was working from an elevated work platform and scaffold when it allegedly collapsed, causing him to fall roughly 6 to 7 feet to the ground. He sustained injuries to his brain, head, shoulder, and spine. He and his wife sued Malia, the owner of the site for negligence and violations of Labor Law §§, 240(1), 241(6), and 200. Malia subsequently commenced a third-party action against Target, Castro's employer.
Despite longstanding caselaw in the Department and a statewide preference for bifurcated trials, immediately prior to trial, plaintiffs moved for a unified trial on the issues of liability and damages. Although Malia did not oppose the motion, Target did. Plaintiffs contended that evidence regarding Castro's head and brain injuries was necessary to refute the contentions of Malia and Target, made in opposition to plaintiffs’ prior summary judgment motion on liability under Labor Law § 240(1), that Castro did not fall from a scaffold and sustain a head injury, but rather, injured his neck and back as a result of lifting wooden planks. Plaintiffs’ counsel informed the trial court that in opposing plaintiffs’ motion for summary judgment, Malia and Target submitted medical records stating the accident occurred when Castro lifted wood. Target’s counsel asserted that it intended to present, during the liability portion of the trial, testimony from treating physicians who took a medical history from Castro of injuring himself by lifting a plank or moving a scaffold.
The trial court denied plaintiffs’ motion for a unified trial, holding a bifurcated trial was “required under the [S]econd [D]epartment rules” and that “in the interest of justice,” it would allow plaintiffs to cross-examine the treating physicians as to whether Castro’s injuries were consistent with a fall, but would not allow plaintiffs to go “into too much detail.” At trial, the trial court prohibit plaintiffs from eliciting testimony from Castro’s neurologist as to the results of diagnostic testing of Castro’s brain. The jury returned a verdict finding that Castro did not fall from a scaffold.
Labor Law § 240(1) (DRA)
The Second Department reversed and set aside the judgment, finding that by any standard, a unified trial was warranted in this case because Malia and Target disputed plaintiffs’ claim that Castro fell from a scaffold and contended the accident resulted not from an elevation-related risk, but from Castro's action in lifting wooden planks. Evidence relating to Castro's brain injuries, which would not have occurred from lifting wooden planks, was probative in determining how the incident occurred. Thus, the nature of the injuries had an important bearing on the issue of liability. Because the issues of liability and Castro’s injuries were so intertwined, the Court held the trial court’s insistence upon bifurcation and its ensuing limitation on the scope of medical evidence that could be elicited by plaintiffs deprived them of a fair trial.
PRACTICE POINT: The key take-away here is that in the Second, you can move for a unified trial where bifurcation does not clarify or simplify the issues and provide a more expeditious resolution.
Clarke v Acadia-Washington Sq. Tower 2, LLC
September 11, 2019
Appellate Division, Second Department
Plaintiff, a sheet metal mechanic, allegedly was injured when he fell on a slippery wooden ramp while walking backwards and pulling a loaded pallet jack at a construction site in Brooklyn. He and his wife suing derivatively, sued defendant, among others, for violations of Labor Law §§ 241(6), 200, and common-law negligence. The trial court granted plaintiff’s motion for leave to amend the complaint to add a cause of action alleging a violation of Labor Law § 240.
Labor Law § 240(1) (DRA)
The Second Department affirmed, finding defendant failed to establish that they were directly prejudiced or surprised by plaintiffs’ delay in seeking leave to amend the complaint to the violation of Labor Law § 240. Indeed, the Court held plaintiffs’ notice of claim against defendant City of New York included a claim for a violation of Labor Law § 240.
PRACTICE POINT: Leave to amend is always freely given, even during trial. Here as the §240(1) claim was a part of the Notice of Claim there was no chance that it would be denied. Usually, the best approach is to request further discovery as it relates to the additional claim requested to be added. Where we see this most often is a motion to add additional regulations to the §241(6) claim.
Graziano v Source Bldrs. & Consultants, LLC
September 11, 2019
Appellate Division, Second Department
Plaintiff, an employee of Capital d/b/a Ventre, sued for personal injuries he allegedly suffered while installing sprinklers in defendant the Bureau’s building. Source had been designated as the general contractor on the renovation project to convert the building from an open warehouse to office space. Plaintiff testified his fall took place when he stood on top of one wall of the hallway in order to reposition the scaffolding board so that he could install the next sprinkler. According to plaintiff, as he stepped backward in order to reposition the scaffolding board, he tripped over a wire that had been run on top of the wall and fell through the dropped ceiling grid to the floor.
The trial court, granted the separate motions of Source and the Bureau for summary judgment dismissing the common-law negligence, and Labor Law §§ 241(6) and 200 claims, granted Roland’s cross-motion for summary judgment dismissing the common-law negligence and § 200 against it, and denied plaintiff's cross motion for summary judgment on the issue of liability against Source, the Bureau, and Roland. The trial court also denied Source's and the Bureau’s motions for summary judgment dismissing the Labor Law § 240(1) claim and denied the Bureau’s motion for conditional summary judgment on its cross-claim for contractual indemnification against Roland. The trial court further granted Source’s motion for conditional summary judgment on its third-party claim for contractual indemnification, denied Source summary judgment on its third-party claim alleging breach of contract, and denied the motion of third-party defendants for summary judgment dismissing the third-party claim for contractual indemnification.
Labor Law § 240(1) (DRA)
The Second Department affirmed denial of the Bureau’s and Source’s motion to dismiss the Labor Law § 240(1) claims, finding they failed to demonstrate that plaintiff was the sole proximate cause of his fall and subsequent injuries. Although they submitted evidence that there were ladders at the site and available to plaintiff, and that plaintiff used one such ladder in order to climb to the top of the wall, they also submitted plaintiff’s deposition testimony, which demonstrated the existence of triable issues of fact as to whether plaintiff was recalcitrant or whether he was following his supervisor's instructions and performing the work in the only way possible. Additionally, plaintiff and Source employees testified at their respective depositions that, although Source was aware that the dropped ceiling grids had been installed prior to the sprinklers, no one from Source, which had the authority to stop any unsafe work practices, sought to stop plaintiff from working as he did.
The Court also affirmed denial of summary judgment to plaintiff, finding triable issues of fact as to whether the Bureau and Source should have provided safety devices or whether plaintiff's act in erecting and using a scaffolding board was recalcitrant such that he was the sole proximate cause of his injury.
PRACTICE POINT: Sole proximate cause still requires the 5 essential elements. An appropriate safety device, that the device be available, that the plaintiff be instructed to use the device, that he either fail to use the device or misuse the device and that it be for no good reason. Here the plaintiff put forth evidence that he was doing the job in the only manner possible, and thus was not using the proper safety devise for a “good reason”.
Labor Law § 241(6) (MAS)
The Industrial Code regulations cited by plaintiff either set “forth a general standard of care and, thus, cannot serve as a predicate for liability pursuant to Labor Law § 241(6)”, or do not apply to the facts of this case. Additionally, although plaintiff cited OSHA standards to support this claim, it is well-settled that such “standards do not provide a basis of liability under Labor Law § 241(6).”
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed denial of plaintiff’s summary judgment motion as to Labor Law § 200 and common-law negligence against the defendants, but reversed the order granting summary judgment on those claims to the defendants. In this case, the plaintiff alleged his injuries arose from a dangerous condition on the premises (rather than the means and methods of the work). Therefore, to obtain summary judgment a defendant must demonstrate it did not create the dangerous condition or have actual or constructive notice of that condition. Moreover, where the condition at issue is both “open and obvious” and “not inherently dangerous,” a defendant is not liable under either a theory of common law negligence or Labor Law § 200.
Here, the Court found the defendants met their initial burden of proof, that the wires lying on top of the walls, over which the plaintiff alleges that he tripped, were typical for a construction site and not a dangerous or defective condition for an unoccupied space. Plaintiff, however, created a triable issue of fact as to whether the wires lying on top of the walls constituted an inherently dangerous condition, based on his testimony that, because the dropped ceiling grid had already been installed, in order to install the sprinklers, he had to place a board on top of those walls.
 Indemnity Issues in Labor Law (SEP)
The Second Department held the trial court should have granted the Bureau’s motion for conditional summary judgment on its cross-claim for contractual indemnification against Roland, pending a determination of Roland’s negligence, if any, because the Bureau submitted evidence that it was free from any negligence and that it can only be held liable based on its statutory or vicarious liability as the property owner.
The Court also reversed as to that branch of the Source’s motion for conditional summary judgment on its contractual indemnity claim, as it demonstrated that it and Ventre “intended to be bound” by their unsigned contract and in opposition, third-party defendants failed to raise a triable issue of fact regarding the existence of an enforceable agreement. As Source failed to establish that it was free from negligence, that branch of its motion should have also been denied.
Roblero v Bais Ruchel High Sch., Inc.
September 11, 2019
Appellate Division, Second Department
Plaintiff allegedly was injured after he fell from a scaffold without wearing a harness or lanyard, at a building owned by defendant/third-party plaintiff Bais Ruchel. Plaintiff had been engaged in plumbing work pursuant to an agreement between his employer, the third-party defendant, ADD Plumbing and Bais Ruchel. The trial court granted plaintiff summary judgment under Labor Law § 240(1), denied Bais Ruchel’s motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims, and denied Bais Ruchel summary judgment on its third-party complaint for contractual indemnification under their subcontract.
Labor Law § 240(1) (DRA)
The Second Department affirmed, finding plaintiff established his prima facie entitlement to judgment as a matter of law on his Labor Law § 240(1) claim by submitting evidence that he was not provided with necessary protection from the gravity-related risk of his work, and that the absence of the necessary protection was a proximate cause of his injuries (see Cruz v Cablevision Sys. Corp., 120 AD3d 744, 746 [2d Dept 2014]). The Court held Bais Ruchel’s opposition failed to raise a triable issue of fact whether plaintiff's own conduct was the sole proximate cause of his injuries.
PRACTICE POINT: Plaintiff fell from a scaffold and had no fall protection, not much defense for that type of accident.
Labor Law § 200 and Common-Law Negligence (ESB)
The, Second Department affirmed denial of the motion for summary judgment as to Labor law § 200 and common-law negligence. In this “means and methods” case, the Court found that defendant failed to meet its prima facie burden of demonstrating it did not have the authority to exercise supervision and control over the subject work, as it had a representative at the work site on a frequent basis who was responsible for “job coordination and safety supervision.” Although the representative testified at his deposition that every subcontractor was “responsible for all the safety matters,” he also testified that he and his site superintendent would “urge” the subcontractors to comply with safety regulations if they “felt something was wrong.” Therefore, on this record, Bais Ruchel failed to eliminate all triable issues of fact regarding is ability to control the manner in which plaintiff performed his work.
Indemnity Issues in Labor Law (SEP)
The Second Department affirmed as Bais Ruchel failed to demonstrate its prima facie entitlement to judgment as matter of law on its common-law and contractual claims for indemnification and contribution against ADD Plumbing because there are triable issues of fact as to the extent, if any, of Bais Ruchel’s own negligence. As ADD Plumbing’s alleged non-procurement of insurance was now pending in a declaratory action, the Court declined to determine that issue.
Lombardi v City of New York
September 25, 2019
Appellate Division, Second Department
Plaintiff, a foreman with nonparty New York Paving, allegedly was injured when a metal plate, which was used to cover an excavated trench located on the roadway, struck him as it was being removed from the roadway surface. Plaintiff’s employer was hired by defendant Brooklyn Union Gas to remove metal roadway plates and the City defendants owned the roadway.
The trial court granted defendants’ summary judgment motion seeking dismissal of the Labor Law § 241(6) claim, predicated on violations of Industrial Code §§ 23-2.3(c) and 6.2(d)(1), and also denied that portion of their motion seeking dismissal of the Labor Law §§ 200 and 240(1) claims, and, in effect, also denied their motion seeking dismissal of the common-law negligence claim.
Labor Law § 240(1) (DRA)
The Second Department reversed the trial court and held defendants should have been granted summary judgment dismissing the Labor Law § 240(1) claim. “The contemplated hazards [of Labor Law § 240(1)] are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured” (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514). Here, the Court held defendants established, prima facie, that plaintiff's injury did not result from the type of elevation-related hazard contemplated by Labor Law § 240(1) (see Melo v Consolidated Edison Co. of N.Y., 92 NY2d 909, 911-912; Biafora v City of New York, 27 A.D.3d 506). In opposition, the Court held plaintiffs failed to raise a triable issue of fact.
PRACTICE POINT: Here given that there was no appreciable height differential between the plate and the plaintiff when he was struck by the plate as it was being removed, and it was not the force of gravity which caused the injury, it was not a §240(1) case.
Labor Law § 241(6) (MAS)
The Second Department agreed with the trial court’s determination to dismiss this claim as defendants established, prima facie, that regulations 2.3(c) and 6.2(d)(1) were inapplicable to the facts of this case.
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department reversed the trial court’s order denying defendants’ motion for summary judgment as to Labor Law § 200 and common-law negligence. This was a “manner and methods” case. The Court stated, “in a claim arising out of dangers from the subcontractor’s methods or materials, recovery against the owner or general contractor cannot be had unless it is shown that the party to be charged exercised some supervisory control over the operation.” Here, the defendants demonstrated that they only had general supervisory authority over the plaintiff’s work, and plaintiff failed to raise a triable issue of fact. Accordingly, defendants’ motion should have been granted.
Fink v Al-Star Realty Corp.
September 27, 2019
Appellate Division, Fourth Department
Plaintiff allegedly was injured when he fell from a ladder while attempting to access an HVAC unit on the roof of defendant’s building. The trial court granted plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim, denied defendants’ cross-motion seeking dismissal of the §§ 240(1) and 241(6) claims, and granted defendants’ cross-motion seeking dismissal of the Labor Law § 200 claim and the common-law negligence claims.
Labor Law § 240(1) (DRA)
The Fourth Department affirmed, finding that defendants' appeal must be dismissed based on defendants’ failure to provide an adequate record, including the failure to include the operative complaint, which defendants sought to dismiss in their cross-motion.
PRACTICE POINT: We so often focus on the legal arguments in our cases, we included this case as a reminder that the procedural requirements are equally important. The contents of the record on appeal are critical and should be reviewed carefully.
Phearsdorf v State of New York
September 27, 2019
Appellate Division, Fourth Department
Claimant allegedly was injured while working on a construction project on State Route 77 in Wyoming County. Defendant contracted with Whitford to rebuild the wing wall of a concrete box culvert, also known as a bridge. Whitford employed Claimant on the project. During construction, another Whitford employee instructed Claimant to drill holes in the bridge, near the top of the proposed new wing wall, to accommodate the rebar that would be “tied in” once the wing wall concrete was poured.
Claimant testified he climbed up the form to a plank installed about six feet from the top of the form by a carpenter. He already climbed up there once to “snap a chalk line.” He climbed again and placed his drill there but had to scale back down the wall to get his hammer. Using the whalers and forms as he had before, he scaled back up the wall. When he reached out and grabbed a part of the form, he fell because it had not been secured behind a whaler and bolt washer yet. When that part came loose, he was about 10 feet above ground and fell backwards onto the concrete slab below. He also testified the location at which he began his ascent had no scaffolding planks nor whalers at the higher elevation. Claimant clarified that he actually started his ascent at the old, broken concrete at the base and scaled the forms. The interlocutory judgment of the Court of Claims determined that defendant was liable under Labor Law § 240 for Claimant’s injuries.
Labor Law § 240(1) (DRA)
The Fourth Department affirmed the Court of Claims’ decision, concluding that, contrary to defendant's contention, there is a fair interpretation of the evidence supporting the Court of Claims’ determination that Claimant was not furnished with the requisite safety devices and that the absence of adequate safety devices was a proximate cause of his injuries.
PRACTICE POINT: Post trial appeals are difficult, particularly in a Court of Claims trial. The determinations of the Court of Claims on issues of witness credibility are not likely to be overturned by an appellate court.
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