Labor Law Pointers - Volume VIII, No. 4

Labor Law Pointers

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

Volume VIII, No. 4
Wednesday, March 6, 2019


From the Editor:

Do you have a situation? We love situations.
I have been using that opening line for years now, stolen from Dan Kohane, because it fits so well to what we do and what we offer to our friends, insurance partners, interested bystanders, and clients.  We are here to help.  We are here to offer whatever advice, counsel, representation, strategy, or just another ear to listen to your issues--we can at any time.  We love the fact that our phones ring often with questions, and the conversation so often starts with, “Hey David, I have this situation.”  Please feel free to reach out to me or any member of our team with any question or situation you may have.  It does not matter if it is our case or ever going to be our case for that matter; we are happy to help.  The more complex and twisted the better. It makes our day to sort out a complex situation and look at the Labor Law exposure and the risk transfer opportunities and be able to help set a strategy for a case.
As to the photos for this month, we start with another superhero wannabe, apparently trying to change a light bulb on a commercial parking lot light pole.  When he falls, is it a §240(1) case?

When he falls, there will not be a valid §240(1) claim as the plaintiff is not engaged in a protected activity.  Changing light bulbs is routine maintenance and not repair.  I have wondered, however, if with the new LED bulbs designed to last for years,  there will be an issue when they fail after a shorter period of time. I am sure someone will claim it is repair and a court will need to decide.
Here we have a plaintiff, with his ladder perched precariously on two boards, which is where he placed it himself as it was the only way he could do the job. When he falls into the basement, will he have a §240(1) claim?

Argument will be made that he placed the ladder in that position himself and is thus the sole proximate cause of his own fall. However, the sole proximate cause defense will fail as the plaintiff had good cause to place the ladder where he did as it was the only way to do the job.  There may be a question of fact if the defendant has evidence of another valid method to do the job or evidence that the plaintiff specifically was told not to do it in that manner.
Here is a new favorite of mine, the old ladder-balanced-on-a-ladder trick.  I think this may be a tryout for that new show, “Construction Workers Got Talent.”  Notice that it appears as if the ladder is not only balanced on the ladder below, but also suspended from a lifting strap in some manner while the plaintiff is painting.  I am always telling clients to have all of their employees and subs read the safety manual, but I wonder exactly what you would describe this as when instructing your employee not to do it.  Inquiring minds want to know. 

When he falls, there are some issues that will determine if this is a §240(1) case.  First, was there an appropriate safety device on site he could have used instead of this contraption?  Second, was he instructed, or did he know that this was not the appropriate way to paint that area?  Given all the scaffold in the photo, if this one isn’t won on sole proximate cause I would be surprised, but I am often surprised.
A new favorite: having your buddy hold the ladder while you finish the sheet rock on the stairs while the boss looks on.  When he falls, is it a §240(1) case?

Given the fact I interjected that the boss was looking on, it likely is.  Recall that a person is not a safety device and thus the only safety device the plaintiff is using on the stairs is a ladder and that will never be considered an appropriate safety device.  Assuming that the plaintiff was carefully instructed never to do this, and even reminded in writing not to do this ever again, he will likely win as his boss is watching and providing what the case law considers tacit approval of the method.  A reminder that you should never allow unsafe practices to ever be condoned, or it will come back and eliminate your sole proximate cause defense when you need it most.  Here I assume that following the fall, there will be two plaintiffs, one a falling person and the other a victim of a falling object.
Had to include this next photo.  Now we have a ladder balanced on boards, on another ladder, on a co-worker and here on a pick-up truck.  A snowy pick-up truck bed cover at that.

When he falls, we would once again argue that replacing a light bulb is maintenance and not repair so there is no §240(1) claim.
The pure insanity of this situation is hard to miss.  Here, we have a plaintiff without any fall protection standing on a pic, which is strapped to a platform, which is on the forks of a lull, which was raised up giving the plaintiff access to the soffit of a roof.  When he falls, is there any defense?

The plaintiff appears to be doing construction work and he is clearly working at a height. When he falls, gravity will do its thing so we are looking for a sole proximate cause defense.  We will once again review the necessary elements.

  1. There must be an appropriate safety device.
  2. The appropriate safety device must be available.
  3. The plaintiff must have been instructed to use the appropriate and available safety device or must know that he was expected to use it.
  4. The plaintiff must fail to use or must misuse the available and appropriate safety device.
  5. The plaintiff’s failure or misuse of the safety device must be for no good reason.

All elements must be present for the sole proximate cause defense to apply.
Thanks for reading our newsletter. We try and make it informative and interesting.  We also understand that you all have limited time for newsletters and thus we aim to keep our analysis short and our advice succinct and to the point. 
Have a great month and we will see you all again in April.

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]
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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.




Mitchell v City of New York
February 14, 2019
Appellate Division, First Department

Plaintiff simply lost his footing while descending a ladder. The trial court granted defendants' motion for summary judgment dismissing the complaint, and denied plaintiffs’ motion for partial summary judgment on the issue of liability on the Labor Law §§ 240(1) and 241(6) claims.
Labor Law § 240(1) (DRA)
The First Department unanimously affirmed; finding that “[t]here is no viable Labor Law § 240(1) claim where, as here, plaintiff simply lost his footing while [descending] a properly secured, non-defective extension ladder that did not malfunction.” 
PRACTICE POINT:  Cue the choir.  Start up the band.  Release the balloons.  Pour the champagne.   A Saint Valentine’s Day present from the First, when a plaintiff loses his balance and falls for no apparent reason from a perfectly good ladder there is no labor law claim.  Period.  This is a difficult lesson for some, but perfectly logical to those of us who do not make our living on 1/3 of a verdict or settlement. Where the safety device did not fail and was appropriate, there is simply no violation of §240(1).  The sad part is that this is the exception, not the rule.
Labor Law § 241(6) (MAS)
The First Department also dismissed the Labor Law § 241(6) claim insofar as it was predicated upon an alleged violation of Industrial Code (12 NYCRR) regulation § 23-1.21(b)(4)(i), because the ladder complied with that provision’s requirements that portable ladders regularly used as access between floor or levels be nailed or otherwise securely fastened.

Penza v Quoohs
February 14, 2019
Appellate Division, First Department

Plaintiff and his company were hired by defendants Edmund Sylvester and Anne Sylvester to remove trees situated along their property line or between their property and the Quoohses’ property. Plaintiff allegedly was injured when he fell from the roof of the third-floor terrace of the property, while standing on it so he could reach tree branches. The trial court granted the Quoohses’ summary judgment motion dismissing the Labor Law §§ 240(1) and 241(6) claims.
Labor Law § 240(1) (DRA)
The First Department unanimously affirmed dismissal of the Labor Law claims against the Quoohses’ because plaintiff was not their employee when he was injured. Plaintiff had not agreed to remove the trees in return for compensation from the Quoohses, the Quoohses did not direct or supervise the manner or method of plaintiff's work, and they would not decide whether the tree removal had been completed satisfactorily.
As for plaintiff’s work, he testified that he never told Mr. Quoohs that he would be going onto the third-floor-terrace roof, Mr. Quoohs testified that no one told him that the Sylvesters’ contactors would need to go there to remove trees, and Mr. Sylvester testified that he did not believe plaintiff had permission to be on the third-floor-terrace roof at the time he was injured.
PRACTICE POINT:  I am not at all sure I agree about the dismissal based on the fact that the plaintiff was not employed by the Quoohses.  The plaintiff was a person “so employed” and thus a valid plaintiff.  The work was not being done for their benefit is a more important issue to me than who paid the plaintiff.  The issue is really that he did not have permission to work from that location and thus they are not valid defendants. 

Lobo v Gatehouse Partners, LLC
February 21, 2019
Appellate Division, First Department

Plaintiff, a resident of Connecticut, filed a Labor Law action for injuries allegedly sustained in a fall from a scaffold while working at a home renovation project in Westchester County. Defendant, the general contractor, and third-party defendants, the subcontractors, are also residents of Connecticut. The trial court granted third-party defendant Kovalskyy's motion to dismiss pursuant to CPLR § 327(a).
Labor Law § 240(1) (DRA)
The First Department unanimously reversed, finding that Kovalskyy failed to meet the heavy burden of demonstrating that plaintiff’s selection of New York as the forum is not proper since the Labor Law exists to protect construction workers laboring in New York. The Court found nothing in the record demonstrates hardship to Kovalskyy, who affirmatively entered into a substantial contract to perform construction work on a home in New York, which requires compliance with New York law governing worker safety.
The Court also held Kovalskyy failed to demonstrate that a change of venue, as an alternative to dismissal on forum non conveniens grounds, should be granted. Plaintiff was permitted to designate any county as the venue for the action, because neither he nor defendant was a resident of New York when the action was commenced. Therefore, the Court held Bronx County is a proper venue, and Kovalskyy made no showing that the convenience of any material non-party witnesses warranted a discretionary change of venue.
PRACTICE POINT:  I have had to have way too many difficult conversations with contractors and property owners from other states when there is an accident in NY.  Too many of them are simply unaware of the NY Labor Law and are shocked to find that they are likely strictly liable for an injury when they had nothing to do with it and were often not even on the work site.  We offer training for, and contract assistance to, any entity involved in protected activities in NY whether or not they are a NY company.  If the accident occurs in NY, then the case will be heard in NY and NY Labor Law will apply.  The best protection is careful planning during the contract phase to facilitate appropriate risk transfer combined with a rigid safety program to prevent accidents and also to assist in providing a defense based in sole proximate cause by providing the essential element of instruction to use, and properly use, an appropriate safety device.

Guevarra v Wreckers Realty, LLC
February 6, 2019
Appellate Division, Second Department

Plaintiff allegedly was sweeping the floor at Jet Auto Wreckers (Jet) when a piece of a skidloader being used to hoist a car engine broke and fell onto him. The trial court granted the defendant's motion for summary judgment dismissing the complaint, and denied plaintiff's cross-motion for summary judgment on the issue of liability under his Labor Law § 240(1) claim.
Labor Law § 240(1) (DRA)
The Second Department affirmed; holding that dismantling of a vehicle unrelated to a building or a structure is not a protected activity under Labor Law § 240(1). Further, the Court noted that the sweeping being performed by plaintiff at the time of the accident could not be “cleaning” within the meaning of the statute because it was the type of routine maintenance that occurs in any type of premises, did not require specialized tools, and could be accomplished “using tools commonly found in a domestic setting.” 
PRACTICE POINT:  If sweeping the floor is ever anything other than routine maintenance, I am taking up a different career. This is similar to the Court of Appeals decision from 2013 in Soto, which limited the definition of cleaning to “specialized equipment or knowledge and could not be accomplished by a single custodial worker using tools commonly found in a domestic setting. Further, the elevation-related risks involved were comparable to those encountered by homeowners during ordinary household cleaning and the task was unrelated to a construction, renovation, painting, alteration or repair project.”
Labor Law § 241(6) (MAS)
The Second Department also affirmed dismissal of the Labor Law § 241(6) claim because plaintiff was not engaged in construction or excavation work at the time of his incident, and “the mere act of dismantling a vehicle, whether a boat, a car, or otherwise, unrelated to any project, is not the sort of demolition intended to be covered by Labor Law § 241(6).”
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department also affirmed dismissal of plaintiff’s common-law negligence claim.  It held the injury-causing defect was the result of the methods Jet used to remove and transport the car engine, and defendant demonstrated it did not supervise or control that work.

Passos v Noble Constr. Group, LLC
February 6, 2019
Appellate Division, Second Department

Plaintiff was a construction worker employed by Genuine, at a building owned by defendant SM Wythe. Genuine workers were disassembling formwork (a metal grid consisting of vertical posts and horizontal girders that hold plywood sheets in place while concrete is drying) on the first floor ceiling when a four-by-eight-foot plywood sheet fell from the first floor ceiling, hitting plaintiff and knocking him to the ground. The trial court denied plaintiff's motion for summary judgment on the issue of liability under his Labor Law § 240(1) claim.
Labor Law § 240(1) (DRA)
The Second Department reversed, finding plaintiff established his prima facie entitlement to judgment as a matter of law through his deposition testimony and a coworker’s affidavit who witnessed the accident stating that approximately 20 to 30 minutes before the accident, a Genuine worker removed the vertical post supporting the plywood sheet and left the plywood sheet unsecured in the ceiling and that it fell, striking plaintiff. The coworker’s affidavit further stated there was no caution tape surrounding the perimeter to prevent other workers from entering the area where the formwork disassembly was occurring. 
In opposition, the Court held defendants failed to raise a triable issue of fact as to the absence of a statutory violation since they failed to offer any evidence, other than mere speculation, to refute plaintiff’s evidence as to how the accident occurred. Although one of defendant’s witnesses, who did not witness the accident, testified that the plywood sheet “most likely” could not remain in the ceiling unsupported by vertical posts, he did not say it was impossible. In any event, at least one of defendants’ other witnesses testified that the plywood sheet could have remained adhered to the ceiling for a period of time after the removal of the supporting vertical posts.
PRACTICE POINT:  In a falling object scenario, there are two types of cases: an object being hoisted and an object that was, or should have been, secured.  Here we have an object--a 4-by-8 sheet of plywood used as a concrete form--which is right above where workers walk.  That will always be an object that needs to be secured.  That object fell on a worker, instantly a plaintiff, and caused injury.  The fact that it fell would seem to establish that it was not appropriately secured. 
Labor Law § 200 and Common-Law Negligence (ESB)
The Appellate Division, Second Department refused to consider defendants’ contentions regarding plaintiff’s Labor Law § 200 claims as not properly before the court.  The Court offers no further explanation, but one can surmise that those arguments likely were raised for the first time on appeal.

Barrios v 19-19 24th Ave. Co., LLC
February 13, 2019
Appellate Division, Second Department

Plaintiff allegedly was injured when a differential block and chain fell onto his head as he and his coworkers were preparing a hoisting apparatus to remove and replace a broken roll-up gate on defendants' premises. The trial court denied both defendants' motion and plaintiff's cross-motion, determining, as to the Labor Law § 240(1) claim, that a triable issue of fact existed as to whether the differential fell from plaintiff's coworker's hands or whether it fell because it was inadequately secured.
Labor Law § 240(1) (DRA)
The Second Department reversed, finding plaintiff made a prima facie showing of entitlement to judgment as a matter of law on his Labor Law § 240(1) claim because the removal activity of the old roll-up gate and the installation of a new roll-up gate constitutes a “repair” within the purview of the statute. The Court further held “the statutory requirement that workers be provided with proper protection extends not only to the hazards of building materials failing, but to the hazards of defective parts of safety devices falling from an elevated level to the ground.”
Here, the Court found defendants liable regardless of whether plaintiff's coworker accidentally dropped the differential while preparing to use the hoisting apparatus to remove the old roll-up gate, or because it was inadequately secured.
PRACTICE POINT:  As in the case above, a falling object needs to be secured.  It does not matter how, but if the object falls, it was not being secured properly.  Recall that the case law is clear that a person is not a safety device so if a person dropped the hoist, it did not have an appropriate safety device securing it; therefore, a violation of the Labor Law.
Labor Law § 241(6) (MAS)
The Second Department reversed the trial court and dismissed the Labor Law § 241(6) claim because, unlike § 240(1), this statute does not include repair work and is limited to only those areas in which construction, excavation, or demolition work is being performed. As plaintiff was not performing work in that context, plaintiff’s Labor Law § 241(6) claim should have been dismissed.

Boncanegra v Chest Realty Corps
February 13, 2019
Appellate Division, Second Department

Plaintiff testified at a jury trial that on a “very, very cold” day, she was working as an asbestos worker on the roof of a building owned by defendant. At lunchtime, she went down a flight of stairs to the seventh floor, and, as she was proceeding to the nearby lunch area, slipped and fell on a patch of ice in the hallway. She did not see the patch of ice prior to her fall.
In his deposition testimony, the foreman employed by Top Line stated he did not witness the accident; however, he saw ice on the floor where plaintiff slipped. According to the foreman, plaintiff’s accident did not occur in the hallway, but occurred in a different area on the seventh floor. The trial court granted that branch of defendant’s motion which was to set aside the jury verdict in favor of plaintiff and for a new trial.
Labor Law § 241(6) (MAS)
The Second Department affirmed the verdict, as there was a valid line of reasoning and permissible inferences which could have led a rational jury to believe plaintiff’s trial testimony that she slipped on a large patch of ice on the floor of a building that did not have heating on a cold January day, and therefore, could rationally conclude that “someone within the chain of the construction project was negligent in not exercising reasonable care, or acting within a reasonable time, to prevent or remediate the hazard, and that plaintiff’ slipping, falling, and subsequent injury proximately resulted from such negligence.”

Channer v ABAX Inc.
February 13, 2019
Appellate Division, Second Department

Plaintiff's employer, non-party ATC, was hired to monitor the asbestos removal in progress at a public school. Plaintiff allegedly was injured when he fell while climbing through a window that was in the midst of the abatement project. At the time of his accident, his duties were to ensure that defendant was properly removing and disposing of asbestos, and to collect air samples.
On the day of the accident, he accessed a scaffold on the outside of the school by stepping onto a milk crate that was beneath a window on the second floor of the school and climbing through the window. The accident occurred when plaintiff climbed back through the window, stepped onto the milk crate, and fell. At his deposition, he testified defendant placed the milk crate under the window and that its employees also used the milk crate as a stepping stool to enter and to exit the scaffold. The trial court granted defendant general contractor’s motion for summary judgment dismissing the complaint, and denied plaintiff's cross-motion for summary judgment on the Labor Law §§ 240(1) and 241(6) causes of action.
Labor Law § 240(1) (DRA)
The Second Department found that both motions should have been denied. Although the Court held plaintiff was a “covered” person under Labor Law §§ 240(1) and 241(6) because “his inspections were essential, ongoing, and more than mere observation,” defendant was entitled to dismissal of the Labor Law § 240 claim because it did not place a milk crate beside the window and it had no knowledge that plaintiff was using this device to access the scaffold.
However, in opposition, the Court held plaintiff raised a triable issue of fact by presenting evidence that defendant provided the milk crate, it was a common practice among its employees to obtain access to the scaffold by using the milk crate, and that plaintiff was not instructed to obtain access to the scaffold by another method, such as by using the scaffold’s stairs.
PRACTICE POINT:  The important issue to take away from this one is when an inspector provided the extraordinary protections of the Labor Law.  The Court of Appeals in Prats has looked at this exact issue on an abatement job and held that where the work does “not fall into a separate phase easily distinguishable from other parts of the larger construction project. Plaintiff's inspection was not in anticipation of AWL's work, nor did it take place after the work was done. The inspections were ongoing and contemporaneous with the other work that formed part of a single contract. The employees who conducted inspections also performed other, more labor-intense aspects of the project. Moreover, plaintiff worked for a company that was carrying out a contract requiring construction and alteration—activities covered by section 240(1).”
Labor Law § 241(6) (MAS)
In support of his Labor Law § 241(6) claim, plaintiff relied on Industrial Code regulations 1.7(f), which only applies to stairways, ramps, or runways. Here, the Court held defendant established that plaintiff could have accessed the second floor of the building by using stairs; therefore, the Court affirmed the trial court’s dismissal of this claim because there was no violation of 1.7(f).
Labor Law § 200 and Common-Law Negligence (ESB)
With regard to the common-law negligence and Labor Law § 200 claims, the Second Department reversed the trial court’s order dismissing those claims.  It found plaintiff raised a triable question of fact regarding whether defendant created an unsafe condition on the premises (i.e., whether defendant set up the milk crate used to access the scaffold).

Bonilla-Reyes v Ribellino
February 20, 2019
Appellate Division, Second Department

Plaintiff, a day laborer, allegedly was injured after falling 20 feet from the platform of a raised forklift while stocking shelves inside a warehouse. He was hired by Euro to perform various tasks related to the renovation of the warehouse for storage of Euro's merchandise, including demolishing an office inside the warehouse and assembling metal shelving units. The demolition had been completed and the shelving units had been assembled approximately 15 days prior to plaintiff's fall.
The trial court granted defendants’ summary judgment motion dismissing the Labor Law § 240(1), and denied plaintiff's cross-motion for summary judgment determining that he was not furnished with proper protection under Labor Law § 240(1), and that such failure was a substantial factor in causing his alleged injuries.
Labor Law § 240(1) (DRA)
The Second Department reversed; finding defendants’ failed to demonstrate, as a matter of law, that plaintiff’s activity in stocking shelves was not performed as part of the larger renovation project that he had been hired to complete on the premises, including assembly of the shelving structures and other tasks attendant to preparing the warehouse to receive Euro’s stock merchandise. The Court agreed with the trial court's denial of plaintiff’s cross-motion, determining that he was not furnished with proper protection under the statute, and that such failure was a substantial factor in causing his alleged injuries.
Plaintiff acknowledged, however, a triable issue of fact existed as to whether he was engaged in a covered activity at the time of his fall. Since plaintiff acknowledged there is a threshold issue of whether Labor Law § 240(1) even applied, the Court did not address plaintiff's remaining contention that he would be entitled to a directed verdict if a jury did find he was engaged in a covered activity.
PRACTICE POINT:  This case demonstrates the need to have a careful strategy established very early in the case and have your defense plan clear in your head.  While the need to remain flexible as additional evidence is obtained is critical, certain main defense strategies need to be developed.  Here, with the plaintiff stocking shelves 15 days after the shelves were assembled and installed, it would seem that the work he was doing was not a part of the renovation job.  The most critical piece of evidence would therefore be that the shelving was completed and that no further assembly work was needed.  That would have cast the stocking of the shelves in a completely different light and likely resulted in summary judgment for the defendant.

DiSanto v Spahiu
February 20, 2019
Appellate Division, Second Department

Plaintiff allegedly was injured when he slipped and fell from the back of a truck he was using to make deliveries to a construction site. At his deposition, he testified that, on the date of the accident, he made several deliveries to other construction sites before he parked the truck on the street near the subject construction site and that he observed an oily substance on the street in front of the subject construction site.
After parking the truck, he walked onto the site and made his delivery. There was dirt and sand “all over the place” at the site, and plaintiff could not avoid walking over it. He testified further that he did not recall seeing oil on the construction site.  After he delivered the materials to the site, he returned to the truck. He climbed into the bed of the truck to retrieve an invoice and, just before he attempted to descend a ladder on the side of the truck, he slipped off the tailgate of the truck and fell about four feet to the street below.
After he fell, he noticed oil on the tread of his right boot and testified further he also observed dirt and sand in the tread of his right boot. The trial court granted the property owner’s summary judgment motion seeking dismissal of the Labor Law § 200 and common-law negligence claims.
Labor Law § 200 and Common-Law Negligence (ESB)
The Appellate Division, Second Department affirmed dismissal of the plaintiff’s Labor Law § 200 and common-law negligence claims.  It held the defendant met its prima facie burden of demonstrating the sand and dirt present at the construction site was an open and obvious condition that was readily observable by the reasonable use of one’s senses, and which was not inherently dangerous.  Moreover, it found the defendant demonstrated the plaintiff could not identify the source of the material on his boot or the cause of his fall without speculation.  Finally, it held plaintiff’s affidavit in opposition stating the dirt and sand on his boot caused him to fall and came from the construction site was speculative and insufficient to create a triable question of fact.
PRACTICE POINT:  The crucial fact in this case is the oily substance on the street (outside the construction site), which oil he did not see on the construction site itself, and which oil he later found on his boot after the fall.  Since it was just as likely the oil – for which the defendant was not responsible – caused the accident, as opposed to the dirt and sand and plaintiff could only speculate the dirt and sand was the cause, such speculation was fatal to the action.

Dorville v Royal Farms, Inc. 
February 20, 2019
Appellate Division, Second Department

In this Labor Law action seeking to recover damages for personal injuries, the trial court denied plaintiff’s motion for summary judgment on the issue of liability on the Labor Law § 240(1) claim, and granted defendant’s cross-motion for summary judgment dismissing the complaint.
Labor Law § 240(1) (DRA)
The Second Department reversed; finding that both parties’ respective summary judgment motions should have been denied because there are triable issues of fact as to the nature of the task plaintiff was performing at the time of the accident, and whether, under the circumstances, that task constituted one of the protected activities within the meaning of Labor Law § 240(1).
PRACTICE POINT:   Where there are differing versions of the task being performed by the plaintiff at the time of the injury--and one version established that the plaintiff was engaged in a covered activity, and one does not--the determination must always be left to the trier of fact, the jury.

Rizo v 165 Eileen Way, LLC
February 20, 2019
Appellate Division, Second Department

Plaintiff allegedly was injured when he fell from a scaffold while hanging sheet rock at a building owned by 165 Eileen Way. Two different adjacent construction projects relevant to the issues in this case had taken place at the building; first, a sports facility and then law offices.  Rosner was a contractor on both projects. After the law firm project was completed, the law firm complained that noise from the sports facility was disrupting law firm operations.
Rosner was directed to soundproof the wall between the law firm and the sports facility, and subcontracted the work to plaintiff’s employer. The sheetrocking work performed in connection with soundproofing the wall was done on the sports facility’s side of the wall. It was during this sheetrocking work that plaintiff allegedly was injured.
The trial court denied those branches of the owners’ summary judgment motion on its cross-claims against Rosner for contractual and common-law indemnification, and denied the Sports facility’s summary judgment motion dismissing the Labor Law §§ 240(1) and 241(6) claims against it and on its cross-claim against Rosner for common-law indemnification.
Labor Law § 240(1) (DRA)
The Second Department affirmed as the obligations of Labor Law §§ 240(1) and 241(6) apply to “contractors and owners and their agents”, including tenants who either contract for or control and supervise the work. However, tenants who neither contract for nor control and supervise the work may not be held liable under those statutes. Here, the Court held Sports facility’s moving papers demonstrated there was a triable issue of fact as to whether it had contracted for the soundproofing work. Specifically, it submitted the deposition testimony of Rosner's foreman, who testified that Sports facility’s principal was one of the men who directed him to construct the soundproof wall between the sports facility and the law firm. Because of this, the Court held Sports facility was not entitled to summary judgment. 
PRACTICE POINT:  The first issue here is who can be an appropriate defendant.  A party who directs the work to be performed, Sports here, is an appropriate defendant.  Had they simply stayed out of the fray and not told the contractor to do the work and then supervised directed and controlled it they would have walked away.  In this scenario, where neighbors either in the same building or adjacent buildings are both involved in a project directly or indirectly it is critical to counsel your client to clearly lay out what responsibility is held by each party before the work starts.  Too many cases where workers use one building to access another either over a roof or placement of a ladder or scaffold, wind up involving as a party to the suit a neighbor either completely unaware of the use of their property or simply trying to be a nice guy. 
Indemnity Issues in Labor Law (SEP)
In support of its contractual indemnity claim, the owner relied on written agreements that, on their face, related to the construction of the law firm offices. The Court found this evidence demonstrated a triable existence of material fact as to whether the soundproofing work arose out of the law firm construction project, which had otherwise been completed months earlier, or was independent of it.
With respect the common-law indemnity claims between the owner and Sports’, the Court noted that both faced statutory liability under the Labor Law which was vicarious, and both established Rosner directed, supervised, or controlled plaintiff’s injury-producing work. Therefore, both were entitled to summary judgment on their cross-claim for common-law indemnification against Rosner.

Hannan v Freeman
February 27, 2019
Appellate Division, Second Department

Plaintiff allegedly was injured while working on a scaffold outside a brownstone building owned by defendant. After discovery, defendant moved for summary judgment dismissing the complaint, which was denied by the trial court only with respect to Labor Law §§ 240(1) and 241(6), finding that there were triable issues of fact as to whether the premises qualified as a one or two-family dwelling. Upon defendant’s motion for leave to renew and re-argue that branch of his prior motion, the trial court granted defendant’s prior motion and dismissed the complaint.
Labor Law § 240(1) (DRA)
The Second Department reversed; finding that although defendant demonstrated, prima facie, that the premises were improved by a one-family or two-family dwelling, and that he did not direct or control the work being performed there. The Court also held plaintiffs raised a triable issue of fact as to whether the premises were, in fact, a three-family dwelling and thus not subject to the protection of the homeowner’s exemption.
PRACTICE POINT:  While we are somewhat thin on facts here it is generally a question of law as to whether the structure is a 1, 2 or 3 family dwelling.  The exception to a clear answer to that issue is where there is question as to what the project itself was seeking to accomplish, is it making a two-family dwelling into a three family dwelling, because in that case it is a three family dwelling for the purposes of the lawsuit.

Guthorn v Village of Saranac Lake
February 28, 2019
Appellate Division, Third Department

In August 2011, defendant entered into a contract with fourth-party defendant, Mercer, to perform construction work. Subsequently, Mercer subcontracted with third-party defendant, Kilby to assist with the project. In September 2011, Mercer drafted a contract for Kilby to execute, containing an indemnity clause in which Kilby agreed to indemnify Mercer against any claims arising out of its work on the project. Prior to execution of the contract, Kilby began work on the project later in September 2011. On December 8, 2011, plaintiff, the project manager for Kilby, allegedly was injured at the plant when he fell from a ladder. Upon finding the contract had not been executed, in March 2012, Mercer drafted a second standard AIA agreement containing an identical indemnity clause as the prior agreement, which Kilby ultimately signed.
Plaintiff, and his wife derivatively, commenced an action against defendant alleging violations of Labor Law §§ 240(1), 241(6), and 200, Defendant answered and thereafter commenced a third-party action against Kilby for contractual indemnification and/or contribution. Kilby moved for summary judgment dismissing the third-party complaint on the ground that the AIA agreement was unenforceable because it was not signed and executed until after plaintiff’s accident and it was never intended that the AIA agreement would apply retroactively.
The trial court granted plaintiffs’ motion for partial summary judgment on the Labor Law § 240 claim, and denied Kilby’s cross-motion seeking dismissal of the third-party complaint.
Indemnity Issues in Labor Law (SEP)
Where, as here, a contractual obligation for indemnity was not executed at the time of the accident the question to be addressed is whether the contract was intended to apply retroactively.  Per the court “an indemnification agreement that is executed after a plaintiff's accident, therefore, may only be applied retroactively where it is established that (1) the agreement was made as of a date prior to the accident and (2) the parties intended the agreement to apply as of that prior date”.  Here there is conflicting testimony as to whether or not there was ever any contract with indemnity language exchanged between the parties and, when the agreement was executed some 4 months after the accident, if the parties intended it to apply retroactively.  Thus, there remain questions of fact for the jury to determine.


Santos v State of New York
February 28, 2019
Appellate Division, Third Department

Claimant allegedly was injured while working for Bruckel, as he was sandblasting the metal structure of the bridge to prepare it for repainting when he sustained a fractured ankle after his right foot backed into an opening in the temporary deck on which he was standing, causing his leg to fall below the surface to the middle of his thigh. The opening was approximately twelve feet by one foot and partially covered by a board. The Court of Claims denied defendant’s summary judgment motion seeking dismissal of the Labor Law § 240(1) claim, and granted claimant’s motion for partial summary judgment on the issue of liability.
Labor Law § 240(1) (DRA)
The Third Department affirmed, finding the opening presented an elevation-related risk, rather than a usual and ordinary danger of working on a construction site, because it was of sufficient size that claimant could have fallen through to a lower level. Accordingly, the statute applies to plaintiff’s accident because it was caused by a failure of the suspended metal deck – the scaffold – to provide adequate protection, although claimant did not fall entirely through the opening.
The Court rejected defendant’s sole proximate cause argument that plaintiff should have covered the hole before beginning to work, because although there may be an issue of fact regarding the availability of boards, there was no evidence that claimant received any instruction or directive that would establish that he knew he was responsible for either covering any openings, or requesting that they be covered by coworkers, before starting his work.
PRACTICE POINT:  Where the opening is large enough for the plaintiff to fall all the way through there is not truly an argument that it is not a §240(1) case in most instances.  It is not sufficient that the plaintiff did not fall all the way through.  Where a plaintiff does not fall from a ladder or scaffold but is injured in the course of saving himself falling, it is also a Labor Law case.

Burns v. Marcellus Lanes, Inc
February 1, 2019
Appellate Division, Fourth Department

Plaintiff allegedly was injured while removing snow and ice from the roof of defendant’s building after he fell from the bucket of a backhoe being used to lift him to the roof. The trial court denied defendant’s summary judgment motion seeking dismissal of the Labor Law § 240(1) claim, and granted plaintiff’s cross-motion on the issue of defendant’s liability.
Labor Law § 240(1) (DRA)
The Fourth Department unanimously affirmed, concluding that the removal of snow and ice from the roof of a commercial building, under these circumstances, constitutes a form of “cleaning,” thereby bringing it within the ambit of the statutory protections. As plaintiff established he suffered “harm directly flowing from the application of the force of gravity to an object or person,” the Court rejected defendant’s claim that plaintiff was not injured by an elevation-related risk within the scope of the statute.
PRACTICE POINT:  First, being lifted to the roof of a building in a backhoe bucket is stupid.  That aside, the court held that as the building was commercial that it will allow it to be considered cleaning.  There is logic to this as the courts allow window washing in a commercial building to qualify for the protection of the Labor Law, so it would appear to be a similar analysis. 

Flowers v Harborcenter Dev., LLC
February 1, 2019
Appellate Division, Fourth Department

One month prior to the damages trial, defendants moved to strike the note of issue and/or stay the trial until they obtained plaintiff's medical records. The trial court denied defendants' motion, but ordered plaintiff's counsel to turn over the pertinent records immediately. The jury thereafter returned a verdict, which included damages for past and future lost wages. Defendants appealed from a judgment awarding plaintiff damages on his claim under Labor Law § 240(1).
Labor Law § 240(1) (DRA)
The Fourth Department affirmed the trial court’s decision to deny defendants’ motion to strike the note of issue or stay the trial as the record establishes that an unlimited authorization for the disputed records was provided over one year before the trial started. The Court also rejected defendants’ claim that the trial court abused its discretion in precluding testimony of its psychiatric expert on the grounds they failed to timely disclose the expert although plaintiff was aware of the possibility that defendant would call such an expert.
However, the Court agreed with defendants that the trial court erred in failing to instruct the jury on mitigation of damages insofar as it applied to the past and future lost wages because plaintiff’s physicians unanimously agreed that he was capable of working in a light duty or sedentary setting and, although he did obtain work shortly after being advised by a doctor to seek job training, the Court found a question of whether the part-time job he took was reasonable mitigation of his damages.
PRACTICE POINT:  We seldom get to look at post-trial appeals and this one is illuminating on a few points.  First, notice that the motion to strike the Note of Issue needs to be made within 20 days filing so the motion to strike was not on the eve of trial because it had not been made earlier as it could not have been.  That said, not seeking to obtain records early on is not the best course of action.  I assume the defendant was seeking to obtain more current records here.  As to the disclosure of an expert and that preclusion that followed, I have always been of the opinion that disclosing experts prior to the 30-day prior to trial mark is appropriate if you have one and if an expert must be retained thereafter, disclose it as soon as possible.  In addition to being the right thing to do, the risk of preclusion would keep me up nights.


Ritter v Fort Schuyler Mgt. Corp.
February 1, 2019
Appellate Division, Fourth Department

Defendant leased a portion of a public university campus from the State of New York and subleased the property to non-party EDGE to facilitate the development of a construction project on campus. Subsequently, EDGE entered into a contract with non-party Jersen to perform work on the project. Plaintiff, an employee of Jensen, allegedly was injured while working on the project. The trial court granted defendant's summary judgment motion dismissing the complaint alleging violations of Labor Law §§ 240(1) and 241(6).
Labor Law § 240(1) (DRA)
The Fourth Department unanimously affirmed; finding defendant met its burden of establishing that it was not an owner under the Labor Law because “it was an out-of-possession lessee of the property that neither contracted for nor supervised the work that brought about the injury, and had no authority to exercise any control over the specific work area that gave rise to plaintiff’s injuries.” As plaintiffs failed to raise a material issue of fact in opposition, the trial court properly held defendant was entitled to dismissal of plaintiff’s complaint.
PRACTICE POINT:  Of most interest here is that the Fourth Department cites to a Second Department case, Ryba, to describe what constitutes an “owner” as "[t]he key factor in determining whether a non-titleholder is an owner' is the right to insist that proper safety practices were followed and it is the right to control the work that is significant, not the actual exercise or non-exercise of control' ".  There are several Fourth Department cases along these same lines but this is the first time I have seen the fourth use that language which has been used in all other departments.

Wood v Airfact Props., LLC
February 8, 2019
Appellate Division, Fourth Department

Defendant Artifact owned a residential property. Plaintiff allegedly was injured while demolishing a roof of an outbuilding on Artifact’s property. Plaintiff sued Artifact and its alleged statutory agent, defendant Perkins, alleging violations of Labor Law § 240(1) and 241(6) in addition to common-law negligence. The court denied Artifact’s and Perkins’ summary judgment motions, and granted plaintiff’s summary judgment motion on the liability of their liability under Labor Law § 240(1).
Labor Law § 240(1) (DRA)
The Fourth Department held Artifact establish its entitlement to the protections afforded under the homeowner’s exemption and thus the trial court erred in granting plaintiff partial summary judgment on liability against Artifact on the Labor Law § 240(1) claim, even though Artifact classified the property as commercial in certain tax filings.
PRACTICE POINT:  The simple fact that the defendant had, in some tax filings, classified the property as commercial does not define the property as commercial for the application of the Labor Law and preclude the defendant from utilizing the one or two family home exclusion from the Labor Law.  It is the actual use of the land that controls.
Labor Law § 200 and Common-Law Negligence (ESB)
The Fourth Department held Artifact’s papers established its entitlement to judgment as a matter of law on plaintiff’s common-law negligence claim and plaintiff failed to raise a triable issue of fact in opposition.  Therefore, while the trial court properly refused to grant plaintiff summary judgment as to liability on that cause of action, it erred in denying Artifact’s motion on this claim.


12 NYCRR § 23-1.16 – Protection in Construction, Demolition and Excavation Operations; Safety belts, harnesses, tail lines and lifelines.

Regulation § 1.16, prescribes standards for safety belts, harnesses and lifelines, is sufficiently specific to sustain a Labor Law § 241(6) cause of action.

Bennion v Goodyear Tire & Rubber Co., 229 AD2d 1003, 645 NYS2d 195 (4th Dept  1996);

Mills v Niagara Mohawk Power Corp., 262 AD2d 901, 692 NYS2d 493 (3d Dept 1999);

Farmer v Central Hudson Gas & Elec. Corp., 299 AD2d 586, 750 NYS2d 407 (4th Dept 2002);

Partridge v Waterloo Cent. Sch. Dist., 12 AD3d 1054, 784 NYS2d 767 (4th Dept 2004);

Dzieran v 1800 Boston Road, LLC, 225 AD3d 336, 808 NYS2d 36 (1st Dept 2006);

Garlow v Chappaqua Cent. Sch. Dist., 38 AD3d 712, 832 NYS2d 627 (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 2008);

Forschner v Jucca Co., 63 AD3d 996, 883 NYS2d 63 (2d Dept 2009);

Thompson v Sithe/ Independence, LLC, 107 AD3d 1385, 967 NYS2d 279 (4th Dept 2013);

Ramirez v Metropolitan Transp. Auth., 106 AD3d 799, 965 NYS2d 156 (2d Dept 2013).

Bennion held 1.16(b) and (c) not applicable because π’s accident did not involve faulty safety belt or the lack of a safety belt.
Mills and Farmer held reg is sufficiently specific to support a § 241(6) claim.
Macdeo found 1.16 inapplicable because there were no workers below the elevated platform on which π worked at the time of his incident.
Partridge, Dzieran, Garlow, Kwang Ho Kim, Ferluckaj, and Forschner all held 1.16 does not prescribe when safety belts & other enumerated devices are required; thus, 1.16 is inapplicable where such devices have not been provided.
Thompson held reg did not apply where drop line for attachment of safety harnesses had been removed in area where π was working since reg does not specify when enumerated safety devices are required.
Ramirez held reg did not apply where such devices were offered, but π was not wearing one when he fell.





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