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Labor Law Pointers - Volume VIII, No. 2

 

Labor Law Pointers

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

Volume VIII, No. 2
Wednesday, January 2, 2019

 

From the Editor:


Do you have a situation?  We love situations.  We loved solving your tricky situations last year, we love them this year, and we will love solving them next year as well.  It is what makes us tick.
 
Happy New Year to one and all; we celebrated with good friends, good food and some champagne.  As the new year starts, we welcome new readers, hear from old friends, and make new friends.  As always we are available to provide a quick opinion on a case, an in-depth analysis, or any support you may need on short notice.  We are available across the state to respond to any construction accident and have the necessary experts available to do a thorough investigation, an invaluable tool in the later defense of the action and the risk transfer issues likely to surface.  Feel free to reach out to any of the team at any time.  For those who do not have it, my cell number is 716-553-6901; feel free to call or text at any time.
 
As things pick up again following the holiday season, we also remind you that we are available for training on all subjects Labor Law or Risk Transfer related, at any level of complexity you or your team may require.
 
For our first picture of the day it is obvious that the soon to be plaintiff has seen way too many superhero movies lately and wanted to fly while trimming dead branches from the tree.  As he inevitably will fall, does he have a valid Labor Law claim?
 

 
As the plaintiff was trimming a tree, which is not made of component parts and thus is not a structure, he does not have a valid Labor Law claim.  Recall that the statute requires that the work be done to a structure or building, and a tree does not qualify.  If, however, the plaintiff was trimming the tree as a portion of a construction project, and the trimming was necessary to construct a building or structure, the claim would be allowed.
 
For our next picture, our plaintiff has created his own scaffold using pallets to build an addition on his own house for his new man cave because he got a cool new TV for Christmas. When he falls from that tower of peril, will he have a claim?
 

 
Here the plaintiff is out of luck on several levels.  First, he is not being paid as he is doing the work on his own house so he is not a person so employed.  Second, he owns the home and thus would not be able to sue himself.  If he owned the house with his wife, he could sue her only if she directed or controlled his specific injury-producing work.
 
For our third photo this month, we have a worker who is working on a hopper in a manufacturing plant.  He is repairing a tear in the surface of the hopper and has decided that the best way to do this is to put the ladder on top of a set of movable stairs and climb up that way.  In spite of being told by his boss never to do this, he not only does so, but his boss helps him get the ladder on top of the steps.  Does he have a Labor Law case when he falls?



So, the plaintiff is making a repair, which is a covered activity under the Labor Law.  He is working at a height, so it will be gravity related when he falls.  In spite of being told not to use the stairs in that manner, his boss not only turned a blind eye to it, but actually helped him set it up so it will not be a sole-proximate-cause defense.  Sound good so far for the plaintiff?  The issue to be addressed is that the plaintiff is involved in manufacturing and is the clam thus excluded?  Had the plaintiff been on the ladder adding a substance to the hopper and fallen, it would have been excluded as it was a step in the manufacturing process.  For instance, cleaning a product following manufacture and prior to shipping is not covered, but here the task was clearly repair and, thus, it would be covered.

Remember that our sister publications, Coverage Pointers ([email protected]) and Premises Pointers ([email protected]), are available for the asking, for the same price as Labor Law Pointers, absolutely free forever.  They are outstanding newsletters and cover their areas of law with in-depth analysis and practice pointers designed to help keep busy claims professionals up to date on changes in the law and to provide helpful tips.
 
We hope you enjoy this edition and we truly encourage you to reach out to us with any and all issues Labor Law or risk transfer related.  Please feel free to pass this newsletter along to any and all that may be interested, or send us their information and we can put them directly on the distribution list.  As always, thanks for your interest.


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

 

 

 

Goya v. Longwood Hous. Dev. Fund43282/16E Co., Inc.
December 4, 2018
Appellate Division, First Department

 
Plaintiff was climbing a fire escape ladder to access different levels for his work and materials when he fell. The trial court denied plaintiff’s motion for partial summary judgment on the issue of liability with respect to his Labor Law § 240(1) claim, and denied subcontractor AAD’s cross-motion for summary judgment dismissing that claim.
 
Labor Law § 240(1) (DRA)
The First Department unanimously affirmed the trial court’s denial of plaintiff’s motion because there were issues of fact as to whether he was “permitted or suffered to work on the building” at the time of his accident. The Court also affirmed denial of AAD’s cross-motion because the ladder was a “safety device” and the record did not support the sole proximate cause defense.
 
PRACTICE POINT:  Where a fire escape is specifically being used to provide access to the different elevated areas it is considered a safety device.  The issue of the plaintiff’s status on site--was he in fact permitted to be there and working at the time of the accident--is a topic to be carefully explored when it is even a slight question.
 
 

Uvidia v Cardinal Spellman High Sch.
December 4, 2018
Appellate Division, First Department

 
Plaintiff allegedly was injured by the collapse of a plywood structure, which he and a coworker were in the middle of erecting on top of a building’s roof in preparation for asbestos abatement to be performed inside the structure. The trial court, upon renewal, granted plaintiff’s summary judgment motion on his Labor Law § 240(1) claim.
 
Labor Law § 240(1) (DRA)
The First Department unanimously affirmed because plaintiff made a prima facie showing that the collapse was proximately caused by a violation of the statute since the bracing of the structure was inadequate to prevent its collapse. The Court rejected defendant’s argument that a gust of wind was the sole proximate cause of the accident because the statute required safety devices to protect against the foreseeable risk that windy weather on the roof of the building could cause the structure to shift or collapse while it was under construction.
 
PRACTICE POINT:  Attempting to claim that a gust of wind was not a foreseeable risk was a tactic doomed from the start.  The structure needed to be secured in such a way that it did not collapse on the workers as they built it. 
 
 

Burgund v. Cushman & Wakefield, Inc.
December 6, 2018
Appellate Division, First Department

 
C&W’s manager oversaw general operations in Verizon’s building, including offering managerial aid to Verizon’s employees, like plaintiff, in relation to building issues, roofs, and other repairs. However, C&W’s manager lacked knowledge of the internet installation work plaintiff was performing at the time he allegedly was injured, he did not direct or supervise plaintiff’s work, and the focus of his office was centered on unrelated air conditioning upgrade work on the second floor of the building. The trial court denied C&W’s motion for summary judgment seeking dismissal of the Labor Law §§ 240(1) and 241(6) claims.
 
Labor Law § 240(1) (DRA)
As plaintiff’s testimony confirmed, he supervised his own work and was not supervised by C&W.  The First Department held the record demonstrates C&W, as the property manager, was a statutory agent of the property owner, Verizon, with respect to the Labor Law §§ 241(6) and 200 claims but not the 240(1) claim, finding issues of facts regarding C&W’s duty to keep the premises, including the areas of the building where renovation of hardware system upgrades were being performed safely at the time plaintiff was injured.
 
PRACTICE POINT:  Always remember that to be a Labor Law defendant, if you are not the owner of the structure, you need to have a close association to the injury producing work, to the extent that you need to have the authority to supervise, direct or control the injury producing work.  Where, as here, the authority is for a different task, the defendant is not an agent of the owner for the task associated with the injury.
 
 

Quigley v. Port Auth. of N.Y. & N.J.
December 13, 2018
Appellate Division, First Department

 
Plaintiff allegedly was injured when he slipped on a pile of snow-covered pipes located directly outside the entrance door of his employer’s work site shanty. The trial court denied plaintiff's cross-motion for summary judgment on his Labor Law § 241(6) claim predicated upon Industrial Code regulations 1.7(d) and (e)(1), and denied that part of defendants’ motion seeking dismissal of the § 241(6) claim based on 1.7(e)(2), § 200, and common-law negligence claims.
 
Labor Law § 241(6) (MAS)
The First Department held the § 241(6) claim based on 1.7(d), which pertains to slipping hazards on a “floor, passageway, walkway, scaffold, platform or other elevated working surface”, should not have been dismissed by the trial court because there was an issue of fact as to whether the accident occurred in a walkway in light of the conflicting accounts as to whether the pipes were located in a manner impeding ingress and egress into the shanty.
 
The § 241(6) claim predicated on a violation of regulation 1.7(e)(1), which is limited to passageways commonly defined as a “typically long narrow way connecting parts of a building”, including an interior of internal way of passage inside a building, was properly dismissed since the accident was caused by pipes in an outdoor area near the shanty door, which the Court held is entirely distinguishable from an accident occurring in an internal hallway or interior side of a doorway.
 
In light of the proximity of the pipes to the shanty, the Court also affirmed denial of defendant’s motion to dismiss the 241(6) claim based on regulation 1.7(e)(2) as there are triable issues of fact as to whether the spot where plaintiff fell was a “working area” under that regulation.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed denial of defendants’ motion for summary judgment as to the Labor Law § 200 and common-law negligence claims, finding defendants did not meet their initial burden of demonstrating they did not create or have knowledge of the dangerous condition that caused the accident. While defendants focused on the snow covering the pipes as the dangerous condition, they seemingly ignored the pipes themselves and their placement by the work shanty as the dangerous condition which actually caused the incident. The evidence failed to establish the identity of the party that left the pipes by the shanty for weeks before the accident, and failed to demonstrate when defendants last inspected the area.
 
 

Slawsky v Turner Constr. Co.
December 13, 2018
Appellate Division, First Department

 
While working for Al Lee Installations, plaintiff assisted in installing a sheet of bulletproof plexiglass at the new NYC Police Department Academy, which was a construction site at which the Turner defendants were general contractors. Plaintiff was assisting in hoisting the sheet of plexiglass with suction cups in order to install it, when a 300-pound section of the sheet of plexiglass became detached and began to fall towards him, causing him to wrench his left elbow to avoid being struck by the section. The trial court denied defendants' motion for summary judgment dismissing plaintiff's Labor Law § 240(1) claim.
 
Labor Law § 240(1) (DRA)
The First Department unanimously affirmed, finding the trial court correctly held plaintiff produced sufficient evidence that he was exposed to an elevation-related hazard supporting a Labor Law § 240(1) claim. The fact that the glass partition may have only traveled a short distance did not warrant dismissal in light of the partition's weight of between 300 and 400 pounds. Moreover, plaintiff adduced evidence that the lifting device provided had an insufficient maximum vertical lift load, and thus did not provide proper protection.
 
PRACTICE POINT:  Post-Runner the question is no longer how far did it fall, but rather was it heavy enough to cause injury when it fell, however far it fell.   In addition, here it appears the suction cup used to move the glass was not rated for the weight of the glass.
 
 

Nava-Juarez v Mosholu Fieldston Realty, LLC
December 20, 2018
Appellate Division, First Department

 
Plaintiff was painting the exterior façade of defendant’s tavern when his ladder allegedly shifted, causing plaintiff to fall from his position three-quarters of the way up the ladder. The trial court denied plaintiff’s summary judgment motion for liability on his Labor Law § 240(1) claim.
 
Labor Law § 240(1) (DRA)                                     
The First Department unanimously reversed, finding plaintiff established prima facie entitlement to partial liability under § 240(1) through his testimony that he fell and was injured when the ladder he was working on shifted suddenly, and the affidavit of a coworker who witnessed the accident and averred plaintiff was painting the exterior facade of defendant's tavern when his ladder shifted. The Court held defendants failed to raise an issue of fact with admissible evidence because, as the proponents of the evidence, they were obligated to show plaintiff was the source of the information recorded in the C-3 indicating that he fell from “stairs,” and that “the translation was provided by a competent, objective interpreter whose translation was accurate, a fact generally established by calling the translator to the stand.”
 
The C-3 form was prepared by plaintiff's worker's compensation attorney with the aid of a translator. Plaintiff averred he told the translator “Mientras estaba trabajando me cai de una escalera”, and asserted the statement should have been translated as "While working I fell off a ladder." The Court held the Spanish word “escalera” may be translated as either “stairs” or “ladder.” Here, there were no “stairs” to speak of as the property is a one-story building and does not have an exterior staircase. Plaintiff was incapable of discovering the error in the translation of the description of his accident because he could not read English and correct the statement.
 
The Court further held Mosholu Realty, as the fee owner of the subject premises, is liable for any Labor Law violation occurring on the property, regardless of whether it lacked knowledge of the work or control over how it was performed. The Court also held Mosholu Enterprises is liable as the tenant who hired plaintiff's employer as the testimony of Mosholu Enterprises' witness, who admittedly lacked knowledge about the extent of the work plaintiff's employer was hired to perform in September 2013, was insufficient to raise a triable issue of fact to defeat the motion.
 
PRACTICE POINT:  A few important issues to be addressed here.  First, for a heresy statement to be admissible as evidence one exception is for the statement to be an admission against interest but only qualifies as such when the statement is adverse to the position of the plaintiff at the time it was made.  Here the statement had other admissibility issues as well, starting with the fact that it was translated improperly and the translator did not provide any testimony.  When seeking to establish that there are incompatible versions of the accident, one of which is not afforded the protections of the statute, great care must be taken to authenticate and support that version to create the question of fact.
 
 

Canty v 133 E. 79th St., LLC
December 27, 2018
Appellate Division, First Department

 
At the time of plaintiff’s accident, he was performing work on 133 East’s property. Lend Lease, the general contractor, subcontracted electrical work to Spieler, and plaintiff’s employer, Cross-Country, for electrical work. Plaintiff was searching for a tool in his employer’s gang box when the lid of the gang box fell and closed on his left hand. He claims a Spieler employee carelessly knocked over the lid when he lifted open the lid of a gang box that was “back to back” with his employer’s gang box allegedly due to overcrowding in the work area.
 
The trial court granted in part and denied in part 133 East’s summary judgment motion dismissing the complaint against it, denied 133 East's motion seeking dismissal of Spieler's cross- claims for contribution as well as common-law and contractual indemnification against it, and granted the portion of Spieler's summary judgment motion seeking dismissal of 133 East's cross-claim for contractual indemnity against it, and denied as moot the portion seeking dismissal of 133 East's cross-claims for contribution and common-law indemnity against Spieler.
 
Labor Law § 241(6) (MAS)
The First Department affirmed dismissal of the § 241(6) claim against 133 East, finding that even if plaintiff properly relied on Industrial Code regulation 1.5(c)(3), it is inapplicable because the subject gang box is not unguarded or defective power equipment. Further, the Court noted that nothing in the record indicated that the gang box was defective.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department reversed the trial court’s decision and granted 133 East’s summary judgment motion as to Labor Law § 200 and common-law negligence, finding the facts of the case implicated only the “means and methods” of work standard, and 133 East established it did not have supervisory control over the placement or utilization of the gang boxes on the jobsite. 
 
With regard to Spieler, the Court reversed the trial court’s decision granting summary judgment, finding plaintiff’s testimony set forth circumstantial evidence sufficient to create a question of fact as to whether a Spieler employee had carelessly knocked over the lid of the gang box.
 
 

Savlas v City of New York
December 27, 2018
Appellate Division, First Department

 
While employed for a contractor on a project owned by the City, plaintiff allegedly tripped and fell over one of several steel plates covering openings into a lower level of a project building. The trial court granted defendants’ summary judgment motion dismissing the Labor Law § 241(6) claim, denied the City’s summary judgment motion dismissing the Labor Law § 200 and common-law negligence claims, and denied URS-MP’s summary judgment motion to dismiss the negligence claim against it. The trial court also denied URS-MP’s motion on its contractual claim against CSM, and granted CSM’s summary judgment motion seeking dismissal of the City’s and URS-MP’s cross-claims for contractual indemnification as against it.
 
Labor Law § 241(6) (MAS)
The First Department affirmed the trial court’s dismissal of the § 241(6) claim premised on a violation of 1.7(e)(2) because the plates were not scattered materials or debris, but rather an integral part of the construction.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department found that neither URS-MP, nor its subcontractor, CSM, was a general contractor or agent of the City. Therefore, the Court affirmed dismissal against CSM.  As to URS-MP, the Court reversed denial of the motion to dismiss plaintiff’s common-law negligence claim, finding URS-MP’s contract did not establish authority on its part to control the worksite, plaintiff was not a third-party beneficiary of the contract, and URS-MP did not create the alleged dangerous condition on the worksite.
 
As to the City, the Court held it failed to demonstrate its employees did not create or have notice of the alleged dangerous condition of the steel plates and was not entitled to summary judgment.
 
Indemnity Issues in Labor Law (SEP)
The claims for contractual indemnification against CSM were dismissed due to the lack of any evidence of negligence attributable to them. Apparently, the contract between CSM and URP-MP contained a negligence trigger, and without any such evidence URS-MP had no viable risk transfer option.
 
The Appellate Division reversed the trial court’s refusal to also dismiss claims of common law negligence against URS-MP.  Where, as here, URS-MP was not responsible for the injury producing work, nor was it on notice of a potentially defective condition at the premises, it followed that no negligence could be attributed to it.  With no negligence, it follows that UR-MP faces no common law indemnity exposure.
 
 

Mitchell v. Caton on the Park, LLC
December 19, 2018
Appellate Division, Second Department

 
Plaintiff, a carpenter employed by Titus, allegedly was injured at a construction site when his pant legs caught on a part of a rebar that had been left sticking out of concrete, causing him to trip and fall. Caton, the property owner, hired Springline as the construction manager, who subcontracted with Titus for concrete work. Titus agreed under that contract to “supervise and direct [the] Work” and to “be solely responsible for … [the] means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under this Trade Contract.” The trial court granted Springline’s summary judgment motion seeking dismissal of the Labor Law §§ 241(6), 200, and common-law negligence claims.
 
Labor Law § 241(6) (MAS)
The Second Department affirmed the trial court’s finding that Industrial Code regulation 1.7(e), which plaintiff relied upon in support of his Labor Law § 241(6) claim, was inapplicable because Springline established the rebar that caused plaintiff’s injury was an integral part of the work being performed, and plaintiff failed to raise an issue of fact in opposition to the motion.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department also affirmed dismissal of the Labor Law § 200 and common-law negligence claims, finding that Springline demonstrated it neither directed nor controlled the work, nor did it create or have actual or constructive notice of the allegedly dangerous condition.
 
PRACTICE POINT: Labor Law § 200 claims come in two forms: 1) claims involving dangerous or defective conditions on the worksite premises, and 2) claims involving the manner in which the work is performed.  Where, as in this case, the claim arises both out of the manner of the work and an allegedly dangerous condition on the premises, on a summary judgment motion, you must address the proof applicable to both standards.
 
 

Allington v Templeton Found.
December 21, 2018
Appellate Division, Fourth Department

 
Plaintiff allegedly was injured while using a ladder, which lacked any feet, to access the roof when it “kicked out” allegedly due to an icy environment. The trial court denied plaintiff’s summary judgment motion on his Labor Law §§ 240(1) and 241(6) claims against Bassett, denied Bassett’s cross-motion to dismiss the complaint and all cross-claims, or alternatively, for summary judgment on its cross-claim for indemnification against Pulver, and denied Pulver’s cross-motion to dismiss the complaint and third-party complaint against it.
 
Labor Law § 240(1) (DRA)
The Fourth Department reversed as to plaintiff’s motion because plaintiff established that his injury was proximately caused by the failure of a safety device to afford him proper protection from an elevation-related risk. The Court rejected Bassett’s sole proximate cause or recalcitrant worker arguments since it did not dispute the ladder, which consisted of only the top half of an extension ladder and lacked any feet, was defective, and plaintiff used the ladder “pursuant to the directions and example of his supervisor.”
 
PRACTICE POINT:  Trying to escape the double whammy of the plaintiff using the top half of a ladder without feet, which the defendant had no option but to admit, and the fact that it was the plaintiff’s boss who not only told him to use the ladder, which was admittedly defective, but that the supervisor used himself, is impossible.
 
Labor Law § 241(6) (MAS)
The Fourth Department reversed and granted plaintiff summary judgment on his Labor Law § 241(6) claim based on Industrial Code regulation 1.21(b)(3)(iv) because evidence of the deterioration of a ladder’s feet is sufficient to establish a prima facie violation of this regulation. The Court noted that plaintiff’s evidence would also establish a violation of 1.21(b)(4)(ii), but plaintiff did not move for summary judgment and thus the trial court properly denied Bassett’s cross-motion with respect to that regulation. However, the Court granted those portion of Bassett’s cross-motion seeking to dismiss the Labor Law § 241(6) claim with respect to the remaining Industrial Code regulations.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Fourth Department reversed the trial court’s order denying Bassett’s summary judgment motion as to Labor Law § 200, holding plaintiff did not oppose Bassett’s motion on that point and failed to respond to the corresponding contention on the cross-appeal. Consequently, the Court deemed plaintiff to have abandoned that cause of action. However, the Court also noted Bassett established it lacked the authority to supervise and control the work. 
 
Similarly, the Court held the subcontractor, Pulver, should have been granted summary judgment as to plaintiff’s common-law negligence claim because it demonstrated it was not on the worksite on the day of the accident and did not create the condition that caused plaintiff’s injury as its employees did not place the ladder, which was under the control of plaintiff’s employer.
 
Indemnity Issues in Labor Law (SEP)
As an initial matter, because Pulver established that it was not negligent, it too established that it could not be responsible for common law indemnity.  As such, the Appellate Division reversed the trial court, and dismissed Bassett’s claims for common law indemnity.

With regard to the contractual indemnity claims presented by Bassett, the Court noted that it is compelled to apply the plain language of the provision at issue.  Here, the contract at issue was executed between Pulver and plaintiff’s employer.  The clause requires that Pulver provide indemnity for any claim which arises out of an injury “occasioned in any way by…malfunctioning tools, supplies, scaffolds or other equipment.”  The court held that an “act or omission that ‘occasion[s]’ a claim is an act or omission that is ‘a direct or indirect cause’ thereof.”  Thus, although Pulver was not a direct, proximate cause of the incident, it was still an “indirect cause” because it owned the ladder from which plaintiff fell.

 

Dennis v Cerrone
December 21, 2018
Appellate Division, Fourth Department

 
Defendant owned property and hired contractors to complete different portions of work at a residential project. Plaintiff’s employer was a contractor retained by defendant to complete the framing work. Several employees of MCI, of which defendant was part owner, general superintendent, and vice president, also completed work on various aspects of the project.
 
Plaintiff allegedly was injured while engaged in framing work when he fell through a hole in the ground level subfloor that had been created for the installation of basement stairs. The trial court denied plaintiff summary judgment on his Labor Law §§ 240(1) and 241(6) claims, granted defendant’s cross-motion for summary judgment dismissing the complaint against him, and granted MCI’s cross-motion to dismiss the Labor Law § 240(1) claim against it.
 
Labor Law § 240(1) (DRA)
The Fourth Department affirmed dismissal of the Labor Law claims against defendant based on the homeowners’ exemption since he testified neither he nor any MCI employee acting as his agent “directed or controlled the methods and means of plaintiff’s work” and submitted other testimony that plaintiff’s employer instructed plaintiff on how to complete his work and about workplace safety.
 
The Court also rejected plaintiff’s argument that since defendant could not be found liable based on the homeowner’s exemption, that necessarily implicated MCI’s liability under Labor Law §§ 240(1) and 241(6) because the issue of whether MCI is subject to liability under those statutes as a contractor or an agent of defendant is entirely a separate question from defendant’s personal liability. However, the Court unanimously modified the trial court’s decision by reinstating the Labor Law § 240(1) claim against MCI, who conceded in its brief and at oral argument that questions of fact exist with respect to whether it had the requisite authority to control or supervise the work.
 
PRACTICE POINT:  In cases such as this where there are different defendants, I like to start with the basics.  Here the first issue is whether or not there is a Labor Law case.  The plaintiff is a valid plaintiff as he was a person so employed at the time of the accident.  The plaintiff was engaged in a protected activity--construction--and he had an elevation related injury after falling through a hole in the floor.  Thus, the remaining issue is whether or not the defendants are appropriate defendants.  Here the property owner was also an owner of the company which was doing construction work on the project.  Addressing the various potential areas of liability for the owner, he did not actually supervise or direct the injury producing work, thus affording him the homeowner exception.  The next issue is if the company had the authority to supervise, direct or control the injury producing work.  That is a totally different question.  As the owner of a 1 or 2 family property, the question is not if you have the authority; as the owner, you arguably always have that authority, but the statute is clear that the exemption is provided as long as the owner did not actually exercise that authority.  For an entity to be the agent of the owner, however, it merely needs to have the authority to supervise, direct or control the work to be an appropriate Labor Law defendant.
 
 

LeChase Constr. Servs., LLC v Jag I, LLC
December 21, 2018
Appellate Division, Fourth Department

 
Plaintiff, the construction manager, entered into a contract with defendant to construct the foundation of a building, which contract required defendant to defend and indemnify plaintiff for all costs arising out of, or caused by, or claimed to have been caused in connection with the work. During construction work, defendant’s employee was injured and sued plaintiff and others for a violation of Labor Law § 240(1).
 
After defendant rejected plaintiff’s tender, plaintiff brought suit for contractual indemnification. Plaintiff ultimately settled the underlying Labor Law action for $1.5M and then proceeded to trial against defendant on the issue of liability. The jury found that plaintiff could have been found liable to defendant’s employee, the settlement was reasonable and in good-faith, and plaintiff was not negligent.
 
Labor Law § 240(1) (DRA)
The Fourth Department affirmed because the fall by defendant’s employee from a foot bridge into an excavation from the ground level is the type of elevation-related risk for which Labor Law § 240(1) provides protection. The Court also rejected defendant’s contention that plaintiff’s status as the project’s “construction manager” excluded it from the class of parties potentially liable to defendant’s employee under the statute.
 
Finally, the Court also rejected defendant’s claim that plaintiff’s expert and general counsel should not have been permitted to testify as to the reasonableness of and reasons for the underlying settlement, and concluded the verdict is not against the weight of the evidence.
 
PRACTICE POINT:  The attempt by many contractors to avoid being a defendant in a Labor Law suit by claiming to be a construction manager as opposed to a general contractor all reverts to a basic question: Does the contractor have the authority to supervise, direct, or control the injury producing work? It is immaterial what term is applied to the entity in the contract; the issue is what role the entity plays in the project.  It is not always the best plan to deny a tender and lose the ability to control the litigation. You can, as occurred here, wind up holding the bag for a settlement you did not negotiate.

Industrial Code Spotlight (MAS)
12 NYCRR § 23-1.15 – Protection in Construction, Demolition and Excavation Operations; Safety railing.

Regulation § 1.15, prescribes standards for safety railings when such railing is required under the Industrial Code, is sufficiently specific to sustain a Labor Law § 241(6) cause of action.

Mazzu v Benderson Development Co., Inc., 224 AD2d 1009, 637 NYS2d 540 (4th Dept 1996)
Mazzu involved π & coworker carrying scaffold between building & empty pool injured when he stepped on edge of pool, the tile cracked & he fell to bottom of pool; Court held reg specific & along with 1.7(b)(1), which governs “hazardous openings” sufficient to make out a prima face 241(6) case.

Wells v British American Development Corp., 2 AD3d 1141, 770 NYS2d 161 (3d Dept  2003)
Wells also held reg may provide a basis for liability under 241(6) when considered in conjunction with 1.7(b)(1).

Partridge v Waterloo Cent. School Dist., 12 AD3d 1054, 784 NYS2d 767 (4th Dept 2004);
Dzieran v 1800 Boston Road, LLC, 25 AD3d 336, 808 NYS2d 36 (1st Dept 2004);
Garlow v Chappaqua Cent. School Dist., 38 AD3d 712, 832 NYS2d 627 (2d Dept 2007);
Dooley v Peerless Importers, Inc., 42 AD3d 199, 837 NYS2d 720 (2d Dept 2007);
Kwang Ho Kim v D & W Shin Realty Corp., 47 AD3d 616, 852 NYS2d 138 (2d Dept 2008);
Ferluckaj v Goldman Sachs & Co., 53 AD3d 422, 862 NYS2d 473 (1st Dept 208);
Holly v Chautauqua, 63 AD3d 1558, 881 NYS2d 741 (4th Dept 2009);
Forschner v Jucca Co., 63 AD3d 996, 883 NYS2d 63 (2d Dept 2009);

Partridge, Dzieran, Garlow, Dooley, Kwang Ho KimFerluckaj, Holly & Forschner all held reg inapplicable where π was not provided with a safety railing.

Mouta v Essex Market Development LLC, 106 AD3d 549, 966 NYS2d 13 (1st Dept 2013)
Mouta held reg did not apply where π injured when he stepped on a section of plywood platform, that unknown to him, was being dismantled & he fell from the fourth floor to the second.

Ramirez v Metropolitan Transp. Authority, 106 AD3d 799, 965 NYS2d 156 (2d Dept 2013)
Ramirez held reg inapplicable to accident occurring when plank in elevated catwalk broke & there was no allegation that railing failed.

Karanikolas v Elias Taverna, LLC, 120 AD3d 552, 992 NYS2d 31 (2d Dept 2014).
Karanikolas held reg inapplicable where π fell from a six-foot A-frame ladder.

 

 

 

 

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