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Labor Law Pointers - Volume VIII, No. 12

 
 

Labor Law Pointers

A Monthly Electronic Newsletter Addressing
New York State Labor Law Decisions and Trends

Volume VIII, No. 12
Wednesday, November 6, 2019

 

From the Editor:
 
Do you have a situation? We love situations.  We are always here to help to rectify your specific situation.
 
Coming soon to a mailbox near you, Products Liability Pointers. Brian Mark, a key member of the Labor Law team and the partner in charge of our New York City metro area office is teaming up with Chris Potenza from our Buffalo mothership to edit our newest newsletter, Products Liability Pointers.  If you are in a position where you are handling these cases, or if you are simply interested in them, reach out to Brian or Chris simply by clicking on their names and let them know you are interested and you will be placed on the distribution list.  First edition is planned for the start of 2020 as I understand it.  Get in on the ground floor for a substantial discount.  I understand that Brian is offering 75% off the cover price of free for the first 100 subscribers.
 
We are always available to answer any questions Labor Law or Risk Transfer related. Reach out to us at any time.  We can also provide any training you may need or want either in-person or as a webinar.  Just let us know.
 
Now, onto the fun part.  In the first photo, you can see that the plaintiff, or soon to become plaintiff, has selected a relatively strong board to balance on top of one ladder and between the rungs of another.  He is the boss. He got the job painting this vacant apartment before the new tenant moves in next week and has set this entire macramé of ladders and boards up despite knowing it is not the right way to do so--but he was in a hurry and did not want to unload the proper scaffolds from the truck.  When he falls, and the board, paint and plaintiff number one strike the other worker on the way down, will he also have a valid Labor Law case?  What about the boss?


 
So, the first plaintiff is likely to have his suit dismissed on a sole proximate cause defense.  His case meets all the requirements.  There was an appropriate safety device available, he knew he should be using it, he failed to use it and did so for no good reason.  Thus, plaintiff number 1 should have his case dismissed as he was the sole proximate cause of his own injuries. 
 
Then we have plaintiff number 2. He was struck by a falling object; however, he was not the one who set it up so he can’t be the sole proximate cause and is a valid Labor Law defendant.
 
Here we have leverage in action.  When the third guy leaves for a coffee break and the plaintiff plunges into the Atlantic while grinding the ship in preparation to paint that area, will he have a Labor Law case given that he is painting a ship?
 

 
A ship is made of component parts and is thus a structure, and painting is a covered activity so that wet plaintiff will be bringing a valid Labor Law case.  Recall also that people are not safety devices and thus the plaintiff was not being protected by a valid safety device.
 
Here we have some demo work being done by a contractor on a parking garage.  When he accomplishes what he has set out to accomplish, taking down the overhanging portion of the ramp, and falls and is injured, will he have a claim?
 

 
While the stupidity defense is always close at hand for me, it is seldom successful.  Unless the plaintiff was specifically told not to do this, he will have a claim.  If he was told not to go out there, but rather to wait until the excavator arrived to take it down from a distance then we move into the world of the Recalcitrant Worker.  A worker who was specifically told not to do something, not to go on the roof where the safety lines had been removed, not to use a jack hammer on the parking ramp over a 40-foot cliff, and goes and does so, then he will be precluded from recovering for not doing what he was specifically told.
 
Thanks for reading this month’s edition of Labor Law Pointers, we hope you will enjoy it.  Please forward it along to any colleagues who may be interested or have them send me an email, easily done by simply clicking on my name (David), and they will be added to the distribution list.  

Don’t forget to subscribe to our other publications:

Coverage Pointers: This twice-monthly electronic newsletter summarizes important insurance law decisions from appellate courts in New York State with the occasional snapshot across borders. Coverage Pointers, the electronic newsletter that started it all, continues to offer guaranteed publication every other Friday, and a read-at-a-glance summary of important decisions as they happen. Contact Dan Kohane at [email protected]  to be added to the mailing list.

Premises Pointers:  This monthly electronic newsletter covers current cases, trends and developments involving premises liability and general litigation. Our attorneys must stay abreast of new cases and trends across New York in both State and Federal Court, and will now share their insight and analysis with you. This publication covers a wide range of topics including retail, restaurant and hospitality liability, slip and fall accidents, snow and ice claims, storm in progress, inadequate/negligent security, inadequate maintenance and negligent repair, service contracts, elevator and escalator accidents, swimming pool and recreational accidents, negligent supervision, assumption of risk, tavern owner and dram shop liability, homeowner liability and toxic exposures (just to name a few!).  Contact Jody Briandi at [email protected]  to be added to the mailing list. 

Products Liability Pointers - Coming Soon:  Whether the claim is based on a defective design, flawed manufacturing process, or inadequate instructions/warnings, products liability litigation is constantly evolving.  Products Liability Pointers examines recent New York State and Federal cases as well as high court decisions from other jurisdictions, keeping our readers up-to-date with the latest developments and trends, and providing useful practice tips and litigation strategies.  This monthly newsletter covers all areas of products liability litigation, including negligence, strict products liability, breach of warranty claims, medical device litigation, toxic and mass torts, regulatory framework and governmental agencies.


David

 
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, please do so here or call the Editor/Labor Law Team Leader David R. Adams directly at (716) 849-8916.

 

Riverea-Austudillo v Garden of Prayer Church of God in Christ, Inc. 
October 1, 2019
Appellate Division, First Department

 
Plaintiff was using a Belfor ladder that allegedly wobbled, flipped, and flopped, causing him to fall. Belfor's deponent, who had no knowledge of the accident, conceded that Belfor had ladders on site, and could not say whether plaintiff's employer, the subcontractor who furnished labor for the cleaning and debris removal portion of the project, also brought ladders. There were no other subcontractors on site. Belfor's deponent also testified Belfor had a site supervisor, the only Belfor employee on site that day, and that he would have been “in the thick of it,” and not performing paperwork or similar administrative tasks. Plaintiff, who wore a Belfor uniform at Belfor’s behest, testified that Belfor employees were “the bosses,” ordering him around. 
 
The trial court denied plaintiff's summary judgment motion on his Labor Law § 240(1) claim and denied the motions of defendant Church of God seeking dismissal of the § 240(1) claim and for summary judgment on its common-law indemnification claim against Belfor.
 
Labor Law § 240(1) (DRA)
The First Department reversed, finding that Plaintiff’s testimony established a prima facie violation of § 240(1).  In opposition, Belfor failed to raise an issue of fact.  The Court specifically noted that Belfor’s daily paperwork was not in the record, nor was there any testimony or affidavit from the Belfor site supervisor who was present that day
 
PRACTICE POINT:  Where the undisputed testimony is that the ladder moved causing the plaintiff to fall, it is a summary judgment motion for the plaintiff all day in the First.
 
Indemnity Issues in Labor Law (SEP)
The Court also reversed insofar as it granted summary judgment to Church of God on its common-law indemnity claim as the evidence warranted a finding of negligence only by Belfor.
 
 

DeGiduio v City of New York
October 8, 2019
Appellate Division, First Department

 
Plaintiff was injured while attempting to avoid injuries from a collapsing crane. The trial court denied plaintiff's summary judgment motion on his Labor Law § 240(1) claim, granted  the MTA defendants’ motion to dismiss plaintiff's § 241(6) claim, granted Hoffman’s motion to the Labor Law § 200 and common-law claims as against it, granted third-party defendant J & E’s summary judgment motion to dismiss the indemnification claims against it, denied the MTA defendants’ summary judgment motion on their contractual indemnification claims against J & E, denied defendants the City’s and Hudson Yards’ cross-motion for summary judgment dismissing plaintiff's complaint as untimely, and denied Hoffman's summary judgment motion seeking dismissal of the MTA defendants' third-party complaint against it. 
 
Labor Law § 240(1) (DRA) 
The First Department reversed, finding the collapse of the crane constitutes a prima facie violation of Labor Law § 240(1) because plaintiff did not need to be directly injured by a portion of the crane for the Labor Law to apply — injuries that occur while trying to avoid being struck during a hoisting accident may qualify (see Flores v Metropolitan Transp. Auth., 164 AD3d 418 [1st Dept 2018]; Matter of 91st St. Crane Collapse Litig., 133 AD3d 478 [1st Dept 2015]). While the Court found plaintiff's deposition testimony varied somewhat from his 50-h testimony, he repeatedly cautioned that the accident happened so fast it was difficult for him to describe exactly how it occurred. In any event, no matter which version was accepted, the Court held Labor Law § 240(1) applies to the MTA defendants and the City. Hoffman and Hudson Yards were not owners, general contractors, or statutory agents, and therefore the Labor Law claims were dismissed as to them.
 
PRACTICE POINT:  Important to remember that to be granted the protections of §240(1) a plaintiff need not actually fall, or have the falling object strike him, it is sufficient to be injured while avoiding falling or being struck.
 
Labor Law § 241(6) (MAS)
Considering the above findings, the First Department did not address the Labor Law §§ 241(6), 200 or common-law negligence claims against the MTA defendants and the City but dismissed them against Hoffman and Hudson Yards.
 
Indemnity Issues in Labor Law (SEP)
The contractual indemnity claims against J&E were dismissed as the accident did not arise out of the work done by them. Their work did not include maintenance or operations and the fact that it was their load was insufficient to establish that the accident was a consequence of or connected to their work.
 
 

South v Metropolitan Transp. Auth.
October 8, 2019
Appellate Division, First Department

 
Plaintiffs fell to the ground and allegedly were injured when the lift truck they were working on moved when it was struck by a passing bus. The lift truck, which was being used as an elevated work platform, lacked a guardrail to prevent falls. The trial court denied plaintiffs’ summary judgment motions on the Labor Law § 240(1) claim and denied third-party defendant Iron Bridge’s motions to dismiss or, in the alternative, to sever the third-party actions as against it. 
 
Labor Law § 240(1) (DRA)
The First Department unanimously reversed, finding plaintiffs established prima facie that defendants are liable for their injuries under Labor Law § 240(1).  In opposition, defendants failed to raise an issue of fact. They relied instead on hearsay evidence as to how the accident may have occurred. Such hearsay evidence alone is insufficient to defeat a motion for summary judgment (Ying Choy Chong v 457 W. 22nd St. Tenants Corp., 144 AD3d 591, 592 [1st Dept 2016]).
 
PRACTICE POINT:  I really do think that if I had a photo of this one it would make the newsletter.  You just can’t make this stuff up.  Then there is the causation issue on the being hit by a bus.  If the plaintiff had been on a scaffold which did not lack safety devices, such as guardrails, then the scaffold may have been an appropriate safety device.  Here a tow motor, with a platform without a guardrail as required is a cause of the accident and thus §240(1) was granted.  Noting else could be the sole cause of the accident where the safety device is flawed.
 
Indemnity Issues in Labor Law (SEP)
The First Department reversed and severed the third-party action against Iron Bridge because of the defendants’ unexplained, “extensive delays” in filing their third-party actions after discovery was complete and the case was ready for trial.
 
 

Lyons v New York City Economic Dev. Corp.
October 17, 2019
Appellate Division, First Department

 
Plaintiff allegedly fell on a mesh walkway. Despite that depositions had not yet occurred, the trial court granted defendants’ summary judgment motion dismissing the Labor Law § 200 and common-law negligence claims but denied as to the § 241(6) claim.
 
Labor Law § 241(6) (MAS)
The First Department noted the record does not show that the parties exchanged paper discovery, including records concerning the installation, maintenance, or repair of the mesh walkway on which plaintiff fell. Thus, the Court held plaintiff met their burden under CPLR § 3232(f) that facts essential to justify opposition to the motion may lie within defendants’ exclusive knowledge or control, and denied defendants’ motion as premature, with leave to renew once discovery is done.
 
 

Ali v Sloan-Kettering Inst. For Cancer Research
October 22, 2019
Appellate Division, First Department

 
Plaintiff allegedly was injured when an air conditioning system coil that weighed at least 300 pounds that was being transported secured to two dollies fell on his leg as he and coworkers unloaded it from a truck. After plaintiff and his coworkers brought the coil to ground level on the truck’s lift gate and were attempting to move it off the lift gate, a wheel of a dolly became caught in a gap on the lift gate, and the coil tipped over. The trial court granted defendants' and third-party defendant’s summary judgment motions dismissing the Labor Law §§ 240(1) and 241(6), claims and denied plaintiff's motion for partial summary judgment on the § 240(1) claim.
 
Labor Law § 240(1) (DRA)
The First Department unanimously reversed, finding that the weight of the coil and the amount of force it was able to generate, even in falling a relatively short distance, resulted in plaintiff's injury from a failure to provide protection required by Labor Law § 240(1) against a risk arising from a significant elevation differential (see Runner v New York Stock Exch., Inc., 13 NY3d 599, 604-605 [2009]. The Court held that moving the coil safely required either hoisting equipment or a device designed to secure the coil against tipping or falling over and no such equipment was provided.
 
PRACTICE POINT:  The only thing that matters any longer in a falling object case post-Runner is the weight of the object, and its ability to cause injury. Thus, as here, a very heavy object being moved on a dolly, falling a few inches, and causing injury, is now considered a §240(1) case. 
 
Labor Law § 241(6) (MAS)
Plaintiff relied on Industrial Code (12 NYCRR) regulation §§ 23-1.7(e)(1) and (2) to support the Labor Law § 241(6) claim. The Frist Department held 1.7(e)(1) inapplicable because the lift gate of the truck was not a passageway, and (e)(2) inapplicable because the accident was not caused by an accumulation of dirt or debris, scattered tools or materials, or a sharp projection. The Court also found 1.28(b) did not apply because the accident was not caused by a defect in the dolly wheel, which the evidence showed was in the good working order.
 
 

Terc v. 535 Coster Realty Inc.
October 22, 2019
Appellate Division, First Department

 
Plaintiff's was hired to dismantle a 25-foot tall dust collecting tank on defendant’s rooftop, which required the use of a ladder to access an opening in the tank when he allegedly fell off the ladder. The trial court denied plaintiff’s summary judgment motion under Labor Law §§ 240(1) and 241(6), denied defendant’s motion seeking dismissal of the complaint, and granted plaintiff summary judgment dismissing the affirmative defense that plaintiff was its special employee.
 
Labor Law § 240(1) (DRA)
The First Department held that plaintiff’s deposition established prima facie that he was engaged in a protected activity under the statute at the time he fell off the ladder. However, defendant’s coworker raised factual issues as to whether plaintiff’s assigned work entailed only nonstatutorily-protected cleaning or maintenance of a dust collecting tank.
 
PRACTICE POINT:  The difference between cleaning which is not protected and cleaning which is statutorily protected is at issue here.  Here, it appears, the dust collecting tank would seem, by its very name, to be a tank which needed periodic cleaning as a part of a manufacturing process and thus would not be the type of cleaning for which protection is afforded under §240(1).
 
Labor Law § 241(6) (MAS)
The First Department affirmed denial of summary judgment to plaintiff under 1.21(b)(4)(i) and (iv) as the evidence does not support a finding that the ladder warranted being nailed or securely fastened or affixed due to use as “regular means” of access between two levels of either a building or structure. The Court noted that it was unclear whether plaintiff was standing on a rung of the ladder that was at least 10 feet off the ground at the time of his fall, precluding a finding as a mater of law that 1.21(b)(4)(iv) was violated.
 
 

Topoli v 77 Bleecer St. Corp. 
October 22, 2019
Appellate Division, First Department

 
Third-party defendants and apartment owners, Rebecca and Adam Dixon, modified the contract with general contractor Greenlight to remove the provision and installation of window treatments from the scope of its work. The Dixons directly contracted with plaintiff’s employer for the installation of the window shades after the construction work was completed and had moved in to the apartment. Greenlight’s return to the work site after the completion of construction, one to accommodate the Dixons’ new desire for the larger window valances, was limited in nature and separate from plaintiff’s work.
 
Plaintiff allegedly was injured while installing window shades. The trial court denied defendants' summary judgment motions seeking dismissal of the complaint alleging Labor Law §§ 240, 241, 200 and common-law negligence claims.
 
Labor Law § 240(1) (DRA)
The First Department unanimously  reversed, finding that plaintiff’s work installing window shades at the time of the accident does not constitute “altering” within the meaning of Labor Law § 240(1).
 
PRACTICE POINT:  This is just one that you need to remember, installing shades, or drapes for that matter, is not a covered activity.  Remember also that putting up wallpaper is not covered but painting is.
 
 
Labor Law § 241(6) (MAS)
The First Department unanimously affirmed, finding plaintiff’s work is separate and distinct from the larger construction project to qualify under Labor Law § 241(6).
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Appellate Division, First Department reversed the order denying defendants’ motion for summary judgment as to Labor Law § 200 and common-law negligence.  It held the plaintiff failed to establish negligence on the part of the defendants.  (As the moving party, the defendant would bear the burden of proof, so we can only assume the court meant that plaintiff failed to establish a triable issue of fact as to defendants’ negligence).

 

Demetrio v Clune Constr. Co., L.P.
October 29, 2019
Appellate Division, First Department

 
Plaintiff allegedly was injured when he slipped and fell into a trench on a construction site. He testified the only safety device protecting workers from falling into the trench at the time of his accident was orange netting secured by wooden fencing. When plaintiff slipped on a nearby patch of mud in the rain while exiting the building under construction to give instructions to another worker, he grabbed onto the wooden fencing to prevent himself from falling into the trench, but the fencing collapsed and fell into the trench along with plaintiff.
 
The trial court denied defendants Clune Construction’s and Time Warner NYC’s motion to dismiss the complaint against them and for summary judgment on their contractual indemnification cross-claim against defendant E & N, granted plaintiff's motion for partial summary judgment on the Labor Law §§ 240(1) and 241(6) claims against Clune and Time Warner NYC, denied plaintiff’s summary judgment motion under §§ 240(1) and 241(6) based on alleged violations of Industrial Code (12 NYCRR) §§ 23-1.7(d), 23-1.7(b)(1), and 23-4.2(h) as against E & N, and granted E & N’s summary judgment motion dismissing those claims against it and Clune and Time Warner NYC's contractual and common-law indemnification cross claims against it. 
 
Labor Law § 240(1) (DRA)
The First Department affirmed, finding that Plaintiff established prima facie that his injuries were proximately caused by a failure to provide adequate safety devices to protect him from the elevation-related risk of falling into a trench while he was working on the construction site.  The Court held Clune and Time Warner failed to raise an issue of fact as to whether there was excavation work being done at the time of the accident, rendering it impracticable to maintain safety devices around the trench at the time. The Court also rejected their argument that plaintiff was acting outside the scope of his work at the time of his accident.
 
The Court also rejected Clune and Time Warner’s argument that plaintiff’s injuries resulted not from a failure to protect against elevation-related risks but from the usual and ordinary dangers on a construction site, i.e., mud on the ground in the rain. As to E & N, the Court held the § 240(1) claim was not dismissed as against it due to the testimony that E & N dug the trench and was responsible for installing protective devices around it because such evidence raised an issue of fact as to whether E & N was a statutory agent of Time Warner.
 
PRACTICE POINT:  Lets look at these arguments one at a time.  First, the argument that rain and mud on a construction site are ordinary hazards fails because it was not the rain and mud that hurt the plaintiff but rather it was the gravity induced fall into the trench.  Second, the argument that plaintiff was outside the scope of his work by going to a portion of the job site where he did not specifically work requires the element that he was instructed not to go to that area, an element missing here.  Third, the differing testimony about the depth of the trench does not create a question of fact as, whatever the depth was, it was sufficient to cause injury.
 
Labor Law § 241(6) (MAS)
The First Department held the § 241(6) claim should not be dismissed against E & N as it dug the trench and there was an issue of fact whether it was Time Warner’s statutory agent.
 
Indemnity Issues in Labor Law (SEP)
Clune and Time Warner's common-law and contractual indemnification cross claims against E & N are precluded by issues of fact as to whether E & N exercised actual supervision or control over the work involving the trench.
 
 

Encarnacion v 3361 Third Ave. Hous. Dev. Fund Corp.
October 29, 2019
Appellate Division, First Department

 
Plaintiff allegedly was injured during the disassembly of a formwork structure used to construct a concrete wall. His supervisor, operating an excavator, lifted a section of formwork out of an excavation pit and moved it to ground level. The formwork remained connected to the excavator bucket via a chain and was kept in an upright position by brace frames. The connector pins attaching the brace frames to the panel were to be removed so that the brace frames could fall away, and the panel could be laid flat on the ground. The brace frames themselves, which stood at least 12 feet tall and weighed approximately 1,500 pounds, were not connected to the excavator bucket or any other device either to hold them upright once the connector pins were removed or to lower them slowly to the ground. When plaintiff removed the last connector pin, the brace frame fell and struck him. The trial court granted plaintiff's motion for partial summary judgment against defendants on the Labor Law § 240(1) claim.
 
Labor Law § 240(1) (DRA)
The First Department affirmed, finding the evidence established prima facie that the activity in which plaintiff was engaged is covered under Labor Law § 240(1). Although plaintiff and the brace frame were at the same level at the time of the accident, the Court held the work he was doing posed a substantial gravity-related risk, because the falling of the brace frame away from the formwork panel would have generated a significant amount of force.
 
The Court found the engineer for manufacturer of the formwork structure’s established prima facie that defendants violated Labor Law § 240(1) by failing to furnish or erect adequate safety devices, such as a crane, so as to properly protect those involved in disassembling the formwork structure, and that this failure was a proximate cause of plaintiff's injuries. In opposition, the Court held defendants failed to raise an issue of fact as to whether plaintiff was the sole proximate cause of the accident because their contentions would amount to, at most, comparative negligence, which is not a defense to a Labor Law § 240(1) violation.
 
PRACTICE POINT:  Post Wilinski and Runner this is the law.  The falling object need not be falling from a higher height and need not fall far if it is heavy enough to cause injury.  The Court of Appeals decided these cases and this is the law.
 
 

Gonzalez v G. Fazio Constr. Co., Inc.
October 29, 2019
Appellate Division, First Department

 
Plaintiff, a laborer on a construction site employed by foundation contractor RGB, allegedly was injured when he tripped on debris while pushing a wheelbarrow of materials across the site.  The trial court denied third-party defendant RGB’s motion to dismiss the complaint.
 
Labor Law § 240(1) (DRA)
The First Department revered, and, with little discussion, held RGB’s motion seeking dismissal of the Labor Law § 240(1) claim should have been granted as the statute was inapplicable to the facts of this case.
 
PRACTICE POINT:  Where the plaintiff is pushing a wheelbarrow and trips on debris there is no component of gravity or elevation which could implicate §240(1).
 
Labor Law § 241(6) (MAS)
The First Department reversed as to this claim based on 1.7(e)(1), because the accident did not occur in a passageway, but found a question of fact whether 1.7(e)(2) was violated from plaintiff’s testimony that he tripped on construction debris. Since he was required to traverse the allegedly debris strewn area to perform his assigned task, the Court found it was part of the “working area” under the regulation.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Appellate Division, First Department, affirmed denial of defendants’ motion for summary judgment as to Labor Law § 200 and common-law negligence.  It held plaintiff’s testimony that the area where he fell was strewn with rocks, metal, wood, broken pieces of concrete, and “full of debris everywhere” was sufficient to raise an issue of fact as to whether defendants had notice of the accumulation of debris that plaintiff was required to navigate (i.e., the hazardous condition), which allegedly caused him to trip.  It further held, defendants’ liability was not negated by the allegedly open nature of the debris, which, at most, would go to plaintiff’s comparative negligence.
 
Indemnity Issues in Labor Law (SEP)
Under the broad language of the indemnity agreement, the Court held defendants are conditionally entitled to contractual indemnification to the extent the accident was not caused by their own neglignence (DeSimone v City of New York, 121 AD3d 420, 422-23 [1st Dept 2014]).
 
 

Ortega v Trinity Hudson Holding LLC
October 29, 2019
Appellate Division, First Department

 
Plaintiff allegedly injured his right hand when, while securing a piece of a “delta scaffold” to a bracket on a wall with a tieback,” the scaffold tipped and pinned his hand against the bracket. At the time, two stacks of counterweights were placed on the scaffold to balance out a suspension scaffold that would later be suspended from the other end. The trial court denied defendants’ summary judgment motion to dismiss the Labor Law §§ 240(1) and 241(6) claims and denied plaintiff's motion for partial summary judgment on the § 240(1) claim.
 
Labor Law § 240(1) (DRA)
The First Department reversed, finding plaintiff was entitled to partial summary judgment on his § 240(1) claim because regardless of whether his hand was struck by the beam of the scaffold or the counterweights placed on the scaffold, this matter falls within the purview of the statute. The Court determined plaintiff’s injuries were the direct result of the application of the force of gravity to the scaffold and the counterweights, and, although the scaffold and counterweights fell a short distance after the scaffold tipped, the elevation differential was not de minimis, as their combined weight of over 2,400 pounds was capable of generating a great amount of force during the short descent.
 
The Court also determined the scaffold was a load that required securing for the purpose of plaintiff's undertaking and contrary to defendants' contention, the counterweights were not a safety device provided to secure the equipment being tied to the bracket but were to balance a scaffold that would later be suspended from it.
 
The Court rejected defendant’s sole proximate cause defense as plaintiff and his coworker both testified that there was slack in the tieback at the time of the accident. The Court deemed their foreman's testimony that the scaffold tipped over due to overtightening of the tieback by plaintiff was speculative since he did not witness the accident. Even accepting the defense's reports and expert affidavit proof, the Court still found it insufficient to raise an issue of fact because the record established the scaffold tipped over in part due to being inadequately secured, raising only comparative negligence by plaintiff.
 
PRACTICE POINT:  This month we have many cases which involve heavy weights moving small distances to cause injury.  It is a month for plaintiffs' attorneys to thanks the Court of Appeals for their ruling in Runner.
 
Labor Law § 241(6) (MAS)
The First Department reversed, finding regulations 1.5(c)(1) and (2) are too general to serve as a predicate. Considering plaintiff’s testimony that his foreman instructed him on how to perform tiebacks, and he had been performing it daily the week before the accident, any violation of 5.1(h) by the foreman’s absence from the job site at the time of the accident was not the proximate cause of the accident.
 
The Court further held 5.1(d) did not apply as the subject equipment was not a “scaffold” contemplated by that provision and, even if so, the counterweights were not the type of load contemplated by it.
 
 

Rodriguez v Antillana & Metro Supermarket Corp.
October 29, 2019
Appellate Division, First Department

 
Plaintiff allegedly was injured while installing a refrigeration condenser unit at premises owned by Boss and leased by Antillana. The refrigeration systems condensers that weighed about 3000 pounds and had to be moved with a forklift. Three weeks after the store was opened, plaintiff was asked to install an additional condenser which weighed 200 pounds. The trial court denied plaintiff's summary judgment motion on his Labor Law § 241(6) claim, granted defendant Boss’ motion seeking dismissal the complaint and any cross claims as against it, and granted defendant Antillana’s motion to dismiss the § 241(6) claim as against it.
 
Labor Law § 241(6) (MAS)
The First Department reversed, finding an issue of fact whether Antillana violated 1.25(d), (e)(1), (e)(3), and (f) due to whether the subsequent installation of the condenser constituted an “alteration” of the premises, which qualifies as “construction work” under the statute. The Court also affirmed dismissal of the complaint against Boss as it was an out-of-possession landlord who had no supervisory control over plaintiff’s actions and did not violate any applicable regulations.
 
 

Eshonkulov v Refiqul
October 9, 2019
Appellate Division, Second Department

 
The Kleins allegedly hired Bengal to perform renovation work on their property. Plaintiff was injured while working on the renovations, and alleged violations of Labor Law §§ 200, 240(1), and 241(6), against the Kleins, Bengal, and Anwar Rafiqul, a member of Bengal. The Kleins asserted cross- claims seeking contribution as well as common-law and contractual indemnification. The trial court denied defendants’ motion to dismiss the complaint and all cross-claims against them, based upon the Workers’ Compensation Law, contending that, at the time of the accident, plaintiff was an employee of Bengal.
 
Labor Law § 240(1) (DRA)
The Second Department reversed, finding plaintiff admitted in his bill of particulars, that Bengal was his employer at the time of the accident, and defendants established, prima facie, that a defendant was plaintiff's co-employee. The Court also found defendants established that plaintiff received workers’ compensation benefits for the injuries arising out of the subject accident. Under these circumstances, defendants demonstrated that plaintiff's action against them was barred by the Workers' Compensation Law.  
 
As for the cross-claims, the Court determined defendants did not make the requisite prima facie showing that plaintiff did not suffer a “grave injury” or as to the alleged existence of a contract to indemnify. Thus, the Court affirmed denial of defendants’ motion to dismiss the cross-claims.
 
PRACTICE POINT:  Section 11 of the Workers Compensation law precludes any claim against an employer or co-worker by the plaintiff where Comp is available.  Thus the employer and all employees were entitled to summary judgment on the direct claims brought by the plaintiff.  What they failed to do was to elicit proof that the plaintiff did not sustain a Grave Injury which would preclude the cross claims by the valid Labor Law defendants for common law indemnity and contribution.  Thus the employer is out of the action as a primary defendant but remains as a third party defendant and, as they are not allowed to bring a second summary judgment motion, now have no way to get out of the case short of trial; a reminder that you need to make sure that you can prove the necessary elements of all of your arguments.
 
 

Bruno v T-Mobile, USA, Inc.
October 30, 2019
Appellate Division, Second Department

 
Plaintiff’s employer and nonparty New York Historical Society owned the building where plaintiff, a maintenance technician allegedly was injured when he tripped or slipped on a “step-over” on the building’s roof. Defendant T-Mobile, as successor in interest to Omnipoint, leased a portion of the roof for purposes of housing a radio equipment cabinet and antenna. At the time of the accident, plaintiff was escorting a T-Mobile worker in gaining access to equipment located on the roof. The trial court granted defendants’ summary judgment and dismissed the complaint alleging Labor Law § 200 and common-law negligence claims against T-Mobile and Omnipoint.
 
Labor Law § 200 and Common-Law Negligence (ESB)
This is a “hazardous condition on the premises” case, rather than "means and methods."  Therefore, the defendants were required to demonstrate they did not create or have actual or constructive notice of any hazardous condition.  Here, the defendants demonstrated, that the step-over was not, in fact, a dangerous or defective condition in the first instance, and, in any event, the defendants did not create or have actual or constructive notice of any alleged dangerous or defective condition of the step-over.  In opposition, plaintiff’s expert relied on purported violations of inapplicable code provisions.  Consequently, summary judgment was affirmed.
 

Coelho v City of New York
October 30, 2019
Appellate Division, Second Department

 
Plaintiff was employed as a foreman for nonparty ECCO, a contractor hired by nonparty State of New York to perform paving work, and allegedly was injured when an asphalt roller collided with the rear of the asphalt paving vehicle on which he was working and contacting his leg. Prior to discovery, the trial court denied the City’s summary judgment motion to dismiss the Labor Law §§ 240, 241, 200 and common-law negligence claims, contending that it was not an “owner” or “contractor” as contemplated by the Labor Law, nor did it supervise or have any involvement in the plaintiff's work on the Van Wyck Expressway.
 
Labor Law § 240(1) (DRA)
The Second Department reversed, finding the City established its prima facie entitlement to summary judgment dismissing the complaint through evidence demonstrating that the New York State DOT was in charge of the project involving the paving, the City was not a party to the contract governing the project, and the City did not perform any of the construction, did not hire the plaintiff's employer, and did not supervise, direct, or control any aspect of the work. 
 
Moreover, the Court found the City’s motion was not premature because plaintiffs failed to make the requisite showing that either further discovery is warranted “when it appears that facts supporting the opposing party's position may exist but cannot then be stated” or “that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant.”
 
PRACTICE POINT:  Purely status-related arguments such as this, where the status of a party as an owner or agent of an owner, can often be made by motion early in a case, and without the need for extensive discovery.  That said, care must be taken, as there is but one bite at the summary judgment apple.

 

12 NYCRR § 23-1.21 – Protection in Construction and Excavation Operations; Ladders and ladderways; General requirements for ladders; Strength.

 

Regulation § 1.21(b)(1), requiring that ladders be capable of sustaining at least four times the maximum load to be placed thereon without breakage, dislodgement or loosening of component parts, is sufficiently specific to support a Labor Law § 241(6) cause of action.

Santamaria v 1125 Park Ave. Corp, 249 AD2d 16, 670 NYS2d 844 (1st Dept 1998);
 
Amantia v Barden & Robeson Corp., 38 AD3d 1167, 833 NYS2d 784 (4th Dept 2007);
 
Riccio v NHT Owners, LLC, 51 AD3d 897, 858 NYS2d 363 (2d Dept 2008);
 
Croussett v Chen, 102 AD3d 448, 958 NYS2d 105 (1st Dept 2013); 
 
Campos v 68 East 86th Street Owners Corp., 117 AD3d 593, 988 NYS2d 1 (1st Dept 2014);

 
Przyborowski v A & M Cook, LLC, 120 AD3d 651, 992 NYS2d 56 (2d Dept 2014).
 

Santamaria held 1.21 provides basis for liability where the ladder did not comply with minimum strength standards as specified in the reg.
 
Amantia hel
d where π used form for pouring concrete to assist him to climb down from truck’s cargo floor, form not a “ladder” and there was no evidence that accident related to form’s strength.
 
Riccio held reg. sufficiently specific.
 
Croussett held reg. inapplicable where no evidence that ladder incapable of supporting four times maximum load intended to be supported thereon.
 
Campos held reg. did not apply where π testified that he had used ladder without incident before and there was no evidence that ladder unable to sustain plaintiff’s weight.

 
Przyborowski held reg. potentially applicable where π fell from unsecured closed A-frame ladder.

 


Labor Law Pointers
 
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