Labor Law Pointers - Volume VIII, No. 3

 

Labor Law Pointers

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

Volume VIII, No. 3
Wednesday, February 6, 2019

 

From the Editor:


Do you have a situation?  We love situations.  We encourage you to reach out to us and share your situation--we are here to help. 
 
Welcome to the February edition of Labor Law Pointers.  For those of you new to our newsletter, we review and analyze every Labor Law or risk transfer case from the Court of Appeals and all four Appellate Divisions.  We look at each case and break it down to address the §240(1) cause of action, the §241(6) claims and associated regulations, and the §200 and negligence claim separately.  We also address any and all risk transfer claims.  It is worth mentioning that the risk transfer issues having to do with coverage are analyzed by Steve Peiper from our coverage department.  Our plan for the defense of a Labor Law case includes analysis not only by our Labor Law team to seek and explore all possible defenses to the Labor Law claim itself, but careful analysis of the risk transfer options available to our client and carrier.  We carefully address any contractual indemnity or additional insured opportunities.  To best accomplish this, we involve our coverage department and their skill set particularly aligned with that analysis and portion of the litigation. 
 
As always, we have our monthly photo quiz.  Take a look at the photo below.  This man appears to be cleaning the lens on a surveillance camera.  The question is: when he falls from the ladder he has placed across the opening between a window and balcony to the ground several floors below, does he have a Labor Law claim?


 

We start with our four-part analysis.  First question we address is if the plaintiff is a valid plaintiff.  Was he being paid to clean the lens?  The answer would appear to be yes, so he is a valid plaintiff.  Second, is the defendant a valid defendant?  Assuming that the plaintiff sues the building owner, he is a valid defendant.  Third, is the injury caused by gravity and a fall in the case of a falling worker?  Here it would clearly be caused by gravity.  Fourth, was the injury caused by the plaintiff being engaged in a covered activity?  As you are aware, cleaning is an enumerated activity and would thus appear to be covered, but this one requires further analysis. Recall that while cleaning is a covered activity, regular maintenance is not.  If the cleaning of the lens is done regularly, the argument would be that it is maintenance and not a covered activity.  If it is taken to be akin to window washing, then it depends on the type of building. Here, it appears to be a commercial building, given the coat rack inside the window.  Additionally, we need to address who is the employer of the plaintiff, if he is the employee of the building owner, such as a maintenance worker, then he is precluded from suing his employer by §11 for the Workers' Compensation Law and may not have an appropriate defendant to sue.

In this next photo, the plaintiff is repairing a car and using his co-worker as a ladder.  When he falls and is injured, does he have a valid Labor Law claim? 



In a word, no; he does not.  First, repairing a car is not a protected activity.  Had the plaintiff been installing HVAC components in a new building, the use of a person as a ladder would not ever be appropriate, as a person is not and cannot be a safety device.

 
Here, the plaintiff is working over a pool, which would break his fall should he somehow fail to remain on that 12-inch-wide board he is perched on.  I don’t really have a question about this one; I just like the picture.



Remember that our sister publications, Coverage Pointers ([email protected]) and Premises Pointers ([email protected]) are available for the same asking 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.

 

 

 

Guerrero v. 115 Cent. Park W. Corp.
January 3, 2019
Appellate Division, First Department

 

Plaintiff testified he was standing on a scaffold that allegedly moved side-to-side, causing his leg to fall into a gap between the scaffold and the adjacent building. The trial court denied plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim. 
 

Labor Law § 240(1) (DRA) 
 

The First Department unanimously affirmed, finding summary judgment was properly denied because triable issues of fact existed as to whether plaintiff’s accident occurred in the manner in which he claimed. The record showed plaintiff did not tell his foreman about his incident on the day it occurred, and his foreman testified that when plaintiff did report the incident the following day, plaintiff said he was injured while lifting equipment, without mentioning the scaffold. 

 
 

Kind v. 1177 Ave. of the Ams. Acquisitions, LLC
January 3, 2019
Appellate Division, First Department

 

Plaintiff allegedly was injured when one end of a scaffold he and a coworker were using to wash exterior windows on a building dropped out from under him and the scaffold came to rest at an angle, causing everything in it to crash down on him. The trial court denied plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim.

 
Labor Law § 240(1) (DRA) 
 

The First Department unanimously reversed, finding the tilting or collapse of the scaffold was prima facie evidence of a statutory violation and plaintiff was not required to demonstrate a specific defect. The Court also held defendants failed to raise a triable issue of fact as to whether plaintiff’s actions were the sole proximate cause of the accident, rejecting as speculative, the conclusion of the Department of Labor’s investigator that the scaffold tilted because plaintiff and his coworker caused a safety line to become caught in a spool for the scaffold's suspension cable.
 
The Court also held that defendant Titanium, which contracted to maintain the scaffold, was an appropriate statutory “agent” for purposes of the Labor Law.

 

PRACTICE POINT:  Recall that commercial window washing is a protected activity and that residential window washing is not.  Here the attempt to establish a sole proximate cause defense is thwarted by a failure to establish the theory beyond mere speculation.  The use of an expert can help to get over the threshold of speculation.

 

Sanchez v. 404 Park Partner, LP
January 15, 2019
Appellate Division, First Department

 

Plaintiff allegedly was injured when he fell through an opening in the floor where he was working in a building undergoing construction and landed on the floor below. The trial court granted plaintiff’s summary judgment motion on his Labor Law §§ 240(1) and 241(6) claims against property owner 404 Park, general contractor Sciame, and subcontractor Cord. The trial court also denied Cord’s cross-motion to dismiss the complaint, and granted 404 Park and Sciame's cross-motion to dismiss the common-law negligence and Labor Law § 200 claims. The trial court also awarded full contractual indemnification to 404 Park and partial contractual indemnity to Sciame from defendant/third-party defendant/second third-party plaintiff United, and contractual indemnity solely to 404 Park from Cord.

 
Labor Law § 240(1) (DRA) 
 

The First Department unanimously affirmed, finding 404 Park and Sciame liable for plaintiff's injuries under § 240(1) as the property owner and general contractor, and that Cord, a subcontractor, is also liable because it “was charged with the duty to provide [c]overs over all floor openings, properly cleated to the floor,” and thus “was an agent of the contractor, having been delegated the duties imposed by the statute upon the contractor.”
 
PRACTICE POINT:  Sometimes, Labor Law cases can be difficult to follow; this is not one of those cases.  Where the plaintiff falls through an opening in a floor to the floor below in a building under construction, there is little doubt that the court will find for the plaintiff.  That the owner is a proper defendant is not a question and where the sub-contractor is specifically named with the contractual responsibility of covering the opening the plaintiff fell through, again a no-brainer.  It is always critical to read the contracts to determine the relative responsibilities of the various contractors on the project.

 
Labor Law § 241(6) (MAS)
 

The First Department found 404 Park, Sciame, and Cord liable for plaintiff’s injuries because plaintiff established they violated Industrial Code (12 NYCRR) regulations 23-1.7(b)(1)(i), (ii), and (iii) and that those violations were a proximate cause of his incident.

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

The First Department affirmed denial of summary judgment on plaintiff’s common-law negligence and Labor Law § 200 claims against Sciame, noting that Sciame’s contract with 404 Park delegated sole responsibility for, and control over, the means and methods of the project to Sciame.  Moreover, the foreman of the subcontractor, Cord, testified he and a Sciame employee decided to use plywood boards with cleats to cover the openings in the floor instead of nailing the boards directly to the floor. Accordingly, the Court found questions of fact regarding Sciame’s failure to provide a safe place to work.

 
Indemnity Issues in Labor Law (SEP)
 

The First Department held Sciame was entitled to a conditional order of contractual indemnification from United because Sciame’s subcontract with United contemplates full indemnity if Sciame is held vicariously liable by reason of statute and partial indemnification if Sciame is found to have been negligent. To the extent plaintiff’s injuries were caused by the negligent acts or omission of Cord or anyone directly or indirectly employed by it,  the Court also held 404 Park and Sciame were entitled to conditional contractual indemnity from Cord under Sciame’s subcontract with Cord.

 

Mt. Hawley Ins. Co. v American States Ins. Co.
January 22, 2019
Appellate Division, First Department

 

In an underlying personal injury action, the injured worker alleged negligence and violations of the Labor Law for injuries he sustained while working at a construction site owned by West 27th. Chatsworth was the general contractor, who, along with West 27th, commenced a third-party action against the subcontractor, J & R, alleging negligence and seeking indemnification and contribution. Pursuant to J & R’s policy with American, West 27th and Chatsworth tendered to American seeking additional insureds status under J & R’s policy.  
 
The trial court granted plaintiffs’ summary judgment motion declaring that defendant American is required to defend and indemnify West 27th and Chatsworth in the underlying action, and denied American's cross-motion for summary judgment.

 
Indemnity Issues in Labor Law (SEP)
 

The First Department unanimously modified the trial court’ decision by denying plaintiffs’ motion to the extent it sought a declaration that American had a duty to indemnify West 27th and Chatsworth, but otherwise affirmed. As there was a reasonably possibility of coverage and the underlying personal injury action was filed while American’s policy was in effect, the Court held American had a duty to defend West 27th  and Chatsworth as additional insureds, and was legally obligated to pay West 27th and Chatsworth’s defenses costs in the underlying action. However, because liability in the underlying action was not clear, the Court held it was premature to conclude American had a duty to indemnify West 27th and Chatsworth.

 

Cashbamba v 1056 Bedford LLC
January 31, 2019
Appellate Division, First Department

 

Plaintiff fell approximately nine feet from the seventh floor to the sixth floor of the building on which he was working and it was undisputed there were no safety harnesses or other safety devices for plaintiff to use. The trial court denied plaintiff’s cross-motion for partial summary judgment on his Labor Law § 240(1) claim, denied defendant/third-party plaintiffs 1056 Bedford’s and Leadex’s cross-motion to dismiss the complaint and all cross-claims, and on their third-party contractual indemnification claim against third-party defendant Luna, and denied Luna’s summary judgment motion seeking dismissal of 1056 Bedford’s and Leadex’s common-law indemnification and contribution claims.

 
Labor Law § 240(1) (DRA)
 

The First Department unanimously reversed, finding plaintiff should have been granted partial summary judgment on his § 240(1) claim because there was no dispute that he fell nine feet and there were no safety harnesses or other safety devices for his use. “Thus, the fact that the parties offered different versions of plaintiff's accident makes no difference with respect to defendants’ liability under Labor Law § 240(1). Under either version, defendants . . . failed to secure an area at a construction site from which a fall could occur, thereby exposing the injured worker to an elevation-related risk.”
 
PRACTICE POINT:  The main point here is that it is not enough to create conflicting versions of the accident to develop a question of fact. At least one of the versions of the accident must be one for which summary judgment cannot be awarded to the plaintiff.  We get wrapped up in the fact that there are differing versions out there and, while in the past an argument that the plaintiff’s veracity and credibility are called into question and thus a jury must decide, that is no longer the status of the law and now at least one on the versions must be such that plaintiff’s motion must be denied.

 
Labor Law § 241(6) (MAS)
 

The First Department affirmed denial of 1056 Bedford’s and Leadex’s cross-motion under § 241(6) because there were triable issues of fact as to exactly how, where, and why plaintiff’s incident occurred.

 
Indemnity Issues in Labor Law (SEP)
 

The Court determined as a matter of law that plaintiff did not sustain a “grave injury” under Workers’ Compensation Law § 11, since he was able to obtain a full-time job after his fall. Accordingly, the third-party claims for common-law indemnification and contribution could not be maintained.

 

Maurisaca v. Bowery at Spring Partners, L.P.
January 9, 2019
Appellate Division, Second Department
 

Plaintiff, an employee of Mission, allegedly was injured when he fell from a scaffold at a construction project. The property was leased by defendants/third third-party plaintiffs Bakers Dozen and EMM’s (collectively the Bakers Dozen), and Walsh was the construction manager. The trial court granted Walsh’s summary judgment motion to dismiss the complaint and all cross-claims asserted against it, but, upon a motion for reargument by the Bakers Dozen and plaintiff in opposition to Walsh’s motion, subsequently denied Walsh’s motion.  

 
Labor Law § 240(1) (DRA) 
 

The Second Department affirmed the trial court's denial of Walsh's motion because it failed to demonstrate its prima facie entitlement to judgment as a matter of law. A construction manager of a work site is generally not responsible for injuries under Labor Law §§ 240(1), 241(6) or 200 unless it functions as an agent of the property owner or general contractor in circumstances where it has the ability to control the activity which brought about plaintiff's injury. Here, the Court found a triable issue of fact as to whether Walsh had the authority to supervise or control the activity that brought about plaintiff's injury. 
 
PRACTICE POINT:  As we have always recommended, the first step in the development of a defense to a Labor Law case is to obtain all contract documents and read them.  The contract will likely contain language relative to the parties and spell out the respective authority of the parties.  If a party is specifically referred to as a "Construction Manager" that is not enough to allow them to avoid being an appropriate defendant. The contract must be reviewed to see if the CM is granted the authority to supervise, direct, or control the means and methods of the injury producing work (even if it was never exercised), or to see if they are referred to as an “agent” of either the owner or GC.

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

The Second Department also affirmed denial of Walsh’s summary judgment motion as to Labor Law § 200 based on the question of fact regarding Walsh’s authority to supervise and control the activity that brought about plaintiff’s accident.


 
Moscati v. Consolidated Edison co. of N.Y., Inc.
January 9, 2019
Appellate Division, Second Department

 

Plaintiff was employed by D’Onofrio and was operating an excavator to remove pieces of timber that had previously formed a bulkhead in a creek bed at a site owned by defendant Con Ed. He was allegedly injured during the course of his work when the excavator slid or tipped into the creek. The trial court granted Con Ed’s summary judgment motion seeking dismissal of the Labor Law § 241(6) claim predicated on violations of Industrial Code §§ 23-4.2(a) and (c), 23-4.4(a), 23-9.4(c), and 23-9.5(a), as well as the Labor Law § 200 and common-law negligence claims.

 
Labor Law § 241(6) (MAS)
 

The Second Department reversed with respect to Industrial Code regulations 4.2(a) and (c), 4.4(a), 9.4(c) and 9.5(a). Con Ed failed to demonstrate that 4.2(c), requiring supervision for certain excavation work, did not apply, nor did it demonstrate that this regulation was not violated. Con Ed also failed to establish that 4.2(a) and 4.4(a), requiring proper footing for certain work using excavators and similar equipment, were inapplicable or that those regulations were not violated. Con Ed failed to show that any allegation violations of 9.4(c) and 9.5(a), requiring the use of shoring and/or temporary sheeting for certain excavation work, were likewise inapplicable to the facts of this case or that they were not violated.

Finally, Con Ed also did not show that any alleged violations of the aforementioned regulations did not constitute a proximate cause of the occurrence. Accordingly, any comparative negligence on plaintiff’s part did not preclude liability under Labor Law § 241(6).

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

The Second Department also reversed the trial court’s order granting Con Ed summary judgment on plaintiff’s common-law negligence and Labor Law § 200 claims. Plaintiff alleged his injuries were caused both by a dangerous and defective condition on the premises – the narrow, sloping, and unshored work area abutting a creek – and by the manner in which the work was performed – because he was not provided a spotter to assist him during the work. The Court found Con Ed did not meet its prima facie burden of proof on either category under Labor Law § 200.
 
As to notice of the alleged defective condition, the evidence demonstrated Con Ed maintained a trailer on the worksite and employed a construction supervisor who was present on the day of plaintiff’s accident.  Moreover, Con Ed did not demonstrate that it was unaware of the planned excavation work in the area of the creek. With regard to the means and methods, the Court also found a question of fact existed regarding Con Ed’s authority to supervise and direct the work because under its contract with plaintiff’s employer, Con Ed reserved the authority to inspect the work and to halt work for failure to comply with specifications or due to safety concerns. Additionally, and perhaps gratuitously, the court noted Con Ed also failed to demonstrate its failures both to provide a safe work area and to supervise the work did not constitute proximate causes of plaintiff’s accident.

 

Sikorjak v. City of New York
January 9, 2019
Appellate Division, Second Department

 

Plaintiff allegedly was injured while demolishing a concrete wall at the St. George Staten Island Ferry Terminal for his employer. Plaintiff was burned when his left pant leg caught on fire after sparks were emitted from a gas-powered handheld saw he was using to cut through a steel reinforcing bar. The City, as the owner of the property, retained Conti as the general contractor and HAKS as the resident engineer. 
 
Plaintiff testified, after his pans leg caught on fire while he was using the saw, he went down on the ground and covered his leg with clay. One of plaintiff's coworkers testified there was a delay in putting out the fire because the coworker was unable to find a fire extinguisher nearby. Another coworker testified he immediately rendered aid to plaintiff by instructing him to “stop, drop, and roll” on the ground, and by patting out the fire with his gloved hands.
 
The trial court denied that branch of defendants’ summary judgment motion seeking dismissal of the Labor Law § 241(6) claim, but granted that portion seeking dismissal of the Labor Law § 200 and common-law negligence claims.
 
At the jury trial on the issue of liability the jury returned a verdict finding the City and Conti violated Labor Law § 241(6) under Industrial Code regulation 12-1.8(c)(i)(iii), but found that any such negligence was not a substantial factor in causing plaintiff’s injuries. The jury also found that the City and Conti did not violate regulations 1.5(c), 1.7(h), 1.8(c)(4), and 10.3. The jury also found plaintiff negligent and apportioned 40% fault to plaintiff and 60% to the City and Conti.
 
After receiving instructions to reconsider their verdict from the trial court, the jury returned a second verdict in favor of the City and Conti, and against plaintiff, on the liability issue without addressing plaintiff’s negligence or apportionment. The trial court, upon plaintiff’s motion for reargument, declined to set aside the verdict and for judgment as matter of law or, alternatively, to set aside the verdict as contrary to the weight of the evidence and for a new trial.
 
Multiple appeals arose from the summary judgment order and trial decisions.

 
Labor Law § 241(6) (MAS)
 

The Second Department held there was a valid line of reasoning, based on the evidence presented at trial, by which the jury could find that the lack of a nearby fire extinguisher was not a substantial factor in causing plaintiff’s injuries. Accordingly, the Court affirmed dismissal of plaintiff’s Labor Law § 241(6) claim predicated upon a violation of regulation 1.8(c)(i)(iii).
 
The Court also affirmed the trial court’s denial of plaintiff’s motion to set aside the verdict as contrary to the weight of the evidence and for a new trial because here, negligence and proximate cause were not inextricably interwoven, and it found the jury’s verdict was supported by a fair interpretation of the evidence.

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

The Second Department affirmed summary judgment dismissal of plaintiff’s Labor Law § 200 and common-law negligence claims against the City and Conti because those defendants established: the accident was caused by the means and methods of plaintiff’s work; plaintiff’s work was directed and controlled by his employer (i.e., defendants did not direct or control his work); and defendants had no authority to exercise supervisory control over plaintiff’s work. Although plaintiff argued a dangerous condition was present on the premises, he raised that argument for the first time on appeal and, therefore, it was not properly before the Court.

 
 

Loretta v. Split Dev. Corp.
January 16, 2019
Appellate Division, Second Department

 

Plaintiff was installing plumbing waste pipes in the garage of a single-family home that was being constructed by defendant Split, and allegedly fell from a 10-foot A-frame ladder while attempting to insert a vertical pipe into the elbow of a horizontal pipe he had previously installed in the garage's 13-foot-high ceiling. The jury rendered a verdict in favor of Split on the issue of liability, finding the ladder furnished to plaintiff was adequate to protect him from the hazards inherent in the performance of his plumbing work at the time of his incident. The trial court denied his motion to set aside the verdict, and dismissed the fourth amended complaint.

 
Labor Law § 240(1) (DRA) 
 

The Second Department affirmed, finding plaintiffs established their prima facie entitlement to judgment as a matter of law by submitting evidence that the ladder toppled over as plaintiff was pushing and twisting the vertical pipe into the elbow of the horizontal pipe, and the failure to provide him with an adequate safety device proximately caused his injuries. However, the Court also held Split raised triable issues of fact regarding the manner in which the incident occurred and whether the ladder provided adequate protection and, if not, whether the ladder's failure to provide adequate protection was a proximate cause of plaintiff's injuries.
 
The Court also affirmed denial of plaintiffs' motion to set aside the verdict and for judgment as a matter of law, as there was a valid line of reasoning and permissible inferences which could have led a rational jury to conclude that the ladder was adequate to protect plaintiff from the hazards arising from his work. The Court also held that a fair interpretation of the evidence could have led to the jury’s verdict that the ladder was an adequate safety device.
 
PRACTICE POINT:  The very careful reading and understanding of the expert opinions and their applicability to the testimony is always necessary, and can sometimes provide opportunities.  Here the melding of the testimony and a careful analysis of the expert opinion paid dividends to the defense.  The plaintiff’s uncertainty as to whether he was twisting the pipe when the ladder moved causing him to fall combined with the expert opinion that if the plaintiff was not twisting the pipe that the ladder was an appropriate safety device created an opportunity that the defense took advantage of.

 
 

Pacheco v. Recio
January 16, 2019
Appellate Division, Second Department

 

Plaintiff, an employee of nonparty Cristobel Ortez, was installing sheetrock at a residential premises owned by defendant Recio when he allegedly fell as he stood on the third rung of a six-foot, metal A-frame ladder, while holding a small piece of sheetrock in one hand. The trial court granted Recio’s motion for summary judgment dismissing the Labor Law § 240(1) claim against her, and denied plaintiff's motion for summary judgment on that same issue.

 
Labor Law § 240(1) (DRA) 
 

The Second Department affirmed as to both motions, finding Recio demonstrated her prima facie entitlement to judgment as a matter of law by submitting plaintiff's deposition testimony, which showed the ladder from which plaintiff fell was not defective or inadequate and that it did not otherwise fail to provide plaintiff with protection since the evidence showed that plaintiff fell because he lost his balance. In opposition, the Court held plaintiff failed to raise a triable issue of fact, and for those same reasons, affirmed denial of plaintiff’s motion for the same relief.
 
PRACTICE POINT:  This case is a reminder that just because a plaintiff falls from a ladder, it is not always a Labor Law case.  Where the plaintiff simply loses his balance and falls there is no violation of §240(1) and the plaintiff's case will be dismissed.  This is one of the most important reasons for an early investigation and statements for all witnesses to whom the plaintiff may have spoken to get the plaintiff’s version of what happened before he has spoken to anyone about the Labor Law.

 

Ramos-Perez v Evelyn USA, LLC
January 30, 2019
Appellate Division, Second Department

 

Plaintiff allegedly was injured while he and a coworker were unloading flooring materials from the back of a truck at a construction site owned by the Soha defendants. A hydraulic lift was being used to lower the flooring materials in pallets, or “skids,” weighing approximately 2,500 to 3,000 pounds, from the bed of the truck to the ground, an elevation of approximately four feet. One of the skids, which had been loaded onto the lift, fell off the lift and struck plaintiff. The trial court granted the Soha defendants’ summary judgment motion seeking dismissal of the Labor Law § 240(1) claim, and denied plaintiff's cross-motion on that same claim. 

 
Labor Law § 240(1) (DRA)
 

The Second Department reversed, finding plaintiff’s evidence established, prima facie, that the Soha defendants violated § 240(1) by failing to provide an appropriate safety device to secure the subject materials as they were being lowered, and that this failure was a proximate cause of plaintiff’s injury. Accordingly, the Court held the trial court should have granted plaintiff’s cross-motion and denied the Soha defendants’ motion seeking dismissal of this claim.
 
PRACTICE POINT:  In a falling object case there are two methods by which the case qualifies as a Labor Law case.  If the falling object is either in the course of being hoisted or if the object is one which requires being secured to prevent it from falling and it falls, the plaintiff has a valid Labor Law case.

 

Vicuna v Vista Woods, LLC
January 30, 2019
Appellate Division, Second Department

 

While employed by third-party defendant Vicuna, plaintiff allegedly was injured when he fell from a ladder. At the time of his incident, he was performing roofing work on Vista Woods’ newly-constructed house. Vista Woods contracted with defendant Ruby to be the general contractor, which subcontracted with defendant Builder’s Choice to perform roofing work, which in turn, subcontracted to Vicuna. The trial court granted plaintiff's motion for summary judgment on his Labor Law § 240(1) claim.

 
Labor Law § 240(1) (DRA)
 

The Second Department affirmed, finding plaintiff made a prima facie showing of entitlement to judgment as a matter of law through his deposition testimony, demonstrating that the ladder on which he was working shifted for no apparent reason, causing him to fall. In opposition, the defendants failed to raise a triable issue of fact.
 
PRACTICE POINT:  Once again, if the ladder shifts, moves, twists, dances, slips, slides, jumps or bounces, causing the plaintiff to fall from the ladder or become injured while preventing himself from falling, he has a valid Labor Law case.

 
 

Doskotch v. Pisocki
January 3, 2019
Appellate Division, Third Department

 

While climbing to the roof of defendant’s rental property to inspect a chimney that needed repairs, plaintiff, defendant’s son, fell from a ladder. After a storm, defendant asked plaintiff, after he returned home from work, to inspect the chimney to see if a repair could be done simply by buying replacement parts, or whether it was necessary to hire a contractor to perform a more complex repair. Defendant testified that she had paid plaintiff to perform previous repairs because “[she] might as well pay [her] own child” instead of a contractor, but was not planning on paying him for the inspection unless he had ultimately carried out the repair.
 
Plaintiff testified he had a longstanding agreement with defendant whereby she paid him $100 each time he performed a repair, and that he expected to be paid when the chimney project was complete, regardless of whether or not he performed the repairs. The trial court denied plaintiff’s summary judgment motion on his Labor Law §§ 240(1) and 200 claims, and denied defendant’s cross-motion to dismiss the complaint allegation violations of §§ 240(1), 241, 200 and common-law negligence, finding triable issues of fact as to whether plaintiff was entitled to the statutory protections of the Labor Law and Industrial Code and whether defendant’s negligence caused plaintiff’s injuries.

 
Labor Law § 240(1) (DRA) 
 

The Third Department affirmed the trial court’s finding of a question of fact as to whether plaintiff was a volunteer or an employee within the meaning of the Labor Law and the Industrial Code. The Court also found a triable issue as to whether the chimney inspection plaintiff was attempting at the time of his incident qualified under the statute as the record does not permit a determination as a matter of law that the chimney inspection was “a separate phase easily distinguishable from” the actual repair, and thus outside the statutory protection.
 
PRACTICE POINT:  To qualify as a plaintiff he must be a “person so employed” per §240(1), which means that he can’t be a volunteer.  The plaintiff here has a complex relationship with the owner of the property, going beyond being a relative.  In addition the task the plaintiff was undertaking, while not actually doing the work may also not exactly be a separate phase from the work.  These cases often result in a question of fact which needs to be determined by a jury.

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

The Third Department also affirmed denial of defendant’s summary judgment motion as, in a means-and-methods case such as this, for plaintiff to prevail against the landowner, he must establish both that the owner exercised supervisory control over the operation and that the owner had actual or constructive knowledge of the unsafe manner in which the work was being performed.  Although defendant asserted she did not supervise plaintiff’s work or tell him how to use the ladder, her own testimony established she owned the ladder, set it up (allegedly on uneven ground) by herself, told plaintiff to use the ladder, and told him how to inspect the chimney. Accordingly, the Court held there was a triable issue of fact as to whether defendant exercised supervisory control over the manner and method of plaintiff’s work.

 

Archer-Vail v. LHV Precast Inc.
January 17, 2019
Appellate Division, Third Department

 

Decedent passed away as a result of injuries sustained after a 2,500 pound bridge form fell on him. The Wieser defendants (Wieser), concrete manufacturing contractors, Spillman, the manufacturer of the bridge form, and LHV, the alleged operator of the site (collectively defendants), separately moved to dismiss the 98-page complaint, and the trial court partially granted their motions to dismiss the Labor Law §§ 240(1) and 241(6) claims as well as a common-law claim for permanent loss of consortium.

 
Labor Law § 240(1) (DRA) 
 

The Third Department affirmed dismissal of the Labor Law §§ 240(1) and 241(6) claims for failure to state a cause of action because plaintiff’s allegations “do not support any contention that the work being done at the time of the incident was, in any manner, an integral part of ongoing construction or was being performed at an ancillary site, incidental to and necessitated by such construction project, where the materials involved were being readied for use in connection with a covered activity” so as to bring it under the purview of § 240(1).
 
PRACTICE POINT:  The case is dismissed based on the location of the accident.  Had the form been in the process of being unloaded at a construction site so the concrete could have been poured on site then the plaintiff would have a Labor Law case.  As the form was being unloaded to pour the concrete at a separate site where pre-cast concrete was to be manufactured it was not closely enough related to any of the protected tasks to qualify.

 
Labor Law § 241(6) (MAS)
 

For the same reasons, the Third Department also held plaintiff’s allegations did not support a conclusion that decedent’s injuries occurred in an “area in which construction, excavation, or demolition work [was] being performed.”

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

The Third-Department rejected Spillman’s argument that plaintiff’s Labor Law § 200 claim should be dismissed against it because Spillman failed to raise that argument before the trial court. Therefore, it was not properly before the Third Department on appeal. 
 
PRACTICE POINT: This is a cautionary tale for attorneys who may not regularly appear before the Appellate Division.  If you have a good faith argument for summary judgment, make sure it is raised at the trial level.


12 NYCRR § 23-1.15 (MAS)

Protection in Construction, Demolition and Excavation Operations; Safety railing; Toeboard requirement.

Regulation § 1.15(c), requiring safety railings be constructed with a one-inch by four-inch toeboard except when railing is installed at grade or ground level or is not adjacent to any opening, pit or other area which may be occupied by any person, is sufficiently specific to sustain a Labor Law § 241(6) cause of action.

1.  Shaheen v Hueber-Breuer Const. Co., Inc., 4 AD3d 761, 772 NYS2d 156 (4th Dept  2004); Shaheen held the reg is sufficiently specific to support a § 241(6) claim.
2.  Macedo v J.D. Psillico, Inc., 68 AD3d 508, 891 NYS2d 46 (1st Dept 2009).  Macdeo found the reg inapplicable because there were no workers below the elevated platform on which π worked at the time of his incident.

 

 

 

 

Hurwitz & Fine, P.C.
 
Buffalo
1300 Liberty Building, Buffalo, NY 14202
Phone: 716-849-8900, Fax: 716-855-0874
             
Long Island
535 Broad Hollow Rd., A-7, Melville, NY 11747
Phone: 631-465-0700, Fax: 631-465-0313
 
Albany
Corporate Woods, Albany, NY 12211
Phone: 518-786-1800, Fax: 518-786-1969

Additional Offices
Albion  |  Amherst  |  Niagara Falls  |  Palm Beach Gardens  |  Toronto


Hurwitz & Fine, P.C. is a full-service law firm providing legal services
throughout the State of New York
 
www.hurwitzfine.com
© 2019, Hurwitz & Fine, P.C. All Rights Reserved

 

In some jurisdictions, newsletters such as this may be considered Attorney Advertising.

 
 
 
 

 

 

 

Copyright © 2019, Hurwitz & Fine, P.C., All rights reserved.

Our mailing address is:
1300 Liberty Building, Buffalo, NY  14202

Want to change how you receive these emails?
You can update your preferences or unsubscribe from this list.
 

 
 
 

Newsletter Sign-up

Fill in the form to register to receive any of our free electronic newsletters: