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Labor Law Pointers - Volume VIII, No. 6

Labor Law Pointers

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

Volume VIII, No. 6
Wednesday, May 1, 2019

 

From the Editor:

 
Do you have a situation? We love situations.

May is here and that means, in spite of the constant rain and cold, summer must be getting close.  The ice is almost all out of the lake and the courts are going full speed ahead, so we have a very full issue for you.
 
Spring is a perfect time to catch up on recent developments in all things Labor Law and risk transfer related.  Feel free to reach out to us for any help we can offer.  We can do training seminars on a variety of Labor Law issues, as well as the full range of risk transfer topics.  We will come to you for a live presentation or set up a webinar if that better fits your needs.  We love to meet our subscribers, many of whom are long time colleagues and friends.
 
We have, as always, a variety of photos for your enjoyment.  We do try and use these photos as teaching opportunities where we can.
 
In the first photo, there are several potential outcomes--none of them work out well for the plaintiff.  He could fall on the re-rods and become impaled, he could fall into the foundation, or he could just continue to balance on the top of the re-rod.  Ok, let’s ignore the last option and focus on the first two; are they a valid Labor Law claim?
 

 
Assuming that the plaintiff is a person so employed, and employed in construction, it certainly appears that he will have a valid §240(1) claim when he falls.  There will also be a valid §241(6) claim for the failure to cap the re-rod creating an impalement hazard. Uncapped re-bar is a hazard under 12 NYCRR 23–1.7(e)(2) and has been found to be a specific section and supportive of injuries caused by uncapped re-rod.
 
Here, we have a most inventive plaintiff who, when he falls from the ladder balanced on the lift, will land in the water and likely be electrocuted.  When he is electrocuted, will it be a § 240(1) case?
 

 
My opinion is that no, it will not be a § 240(1) case.  When the plaintiff falls, he lands in the water.  The fall into water will not actually cause him injury; it is the downed power line in the water that electrocutes him and thus his injury is not gravity related beyond putting him into the water to be electrocuted.  Thus, it would not qualify as a § 240(1) claim.
 
Here, we have a man painting a house solely owned by his wife.  He is doing so because his wife informed him that he needed to do so right away.  Their house is not only used for residential purposes, but also as a Bed and Breakfast.  In addition, his wife supervised his work and directed him on the means and methods of the job.  He did inquire of her if he would receive, in addition to the large amount of advice and direction she provided, pay for his work.  He was informed he would not.  As he painted the very top of the downspout, he lost his balance and fell, being injured.  Does he have a valid § 240(1) claim?
 

 
It may appear that he would have a claim against his wife as the home was not used solely for residential purposes.  In addition, the owner of the single family home had provided supervision and direction, taking her out of the exclusion for a single family homeowner.  He was engaged in a protected activity, painting.  His injury was gravity related, so he qualifies there.  The problem with his claim is that he is, at least as far as the law is concerned, a volunteer.  He does not receive the protection of § 240(1) as he is not a “person so employed.”
 
When the co-worker sneezes and lifts up off the legs of the plaintiff, causing him to plunge into the sewer and fall 20 feet, will it be a Labor Law case?  The plaintiff is drilling a hole in an electric box within the man hole as this occurs.


 
This is an easy one. A person cannot be a safety device, and thus, none was provided, so the plaintiff will have a valid § 240(1) claim.  He is a valid plaintiff; the overall job is one that qualifies as an alteration. The injury would be gravity related and thus he can sue the property owner.
 
I do not have a great question to go along with the below picture.  The complete lack of any type of safety device makes my knees weak just looking at it.  Any fall from here would certainly qualify.
 

 
Here, we have a situation where the plaintiff was sent out by his boss to clear the snow off the roof as it was endangering the structure.  The boss leased space from the property owner.  When the plaintiff falls and is injured, will he have a valid § 240(1) claim?
 

 
The plaintiff will not have a § 240(1) claim.  He is simply not engaged in a protected activity at the time he was injured.  Protected activities include repair, which this is not, and do not include maintenance, which this could be considered.  Thus, the plaintiff does not have a claim.
 
Below, we have a construction worker who has stepped out on to a pair of columns to take a stunning photo of the city below.  He has been told on many occasions that he is not to be on the steel without being clipped in, but he could not remain clipped in and get to the location necessary to take this Pulitzer-winning photo, so he took it off.  When he loses his balance and falls, will he have a § 240(1) claim?
 

 
Several issues to be addressed here for us to analyze this case.  First, he will have a claim.  He is a person so employed and thus a valid plaintiff.  He is working construction, so the overall job is covered.  He falls from a height, so the injury is gravity related and qualifies.  That said, there does appear to be a valid defense of sole proximate cause here.  The plaintiff was provided with a harness; you can see the loop on his back.  He was able to hook in to do his assigned work but unhooked to take his picture so the attachment point was sufficient for his work.  He was told not to be on the steel without being clipped in.  Had the plaintiff needed to unclip to do his work, he may have had a valid claim, but as he was unclipping to simply take a photo, he will be deemed to be the sole proximate cause of his own injuries.
 
Here, we have a plaintiff putting a box on the top of the shelf in a grocery store while standing on a shopping cart because the appropriate ladder he wanted to use was being used by a different employee and his boss told him to hurry and use the shopping cart or he would be fired.  Does he have a valid case?


 
The plaintiff, when he falls is injured by the application of gravity.  There was an appropriate safety device, which the plaintiff wanted to use but was told he could not use and therefore there is no sole proximate cause defense and no appropriate safety device was provided to the plaintiff to do the job.  He is also a person so employed, and thus a valid plaintiff.  The case falls apart though when the overall task is addressed.  The labor law does not cover workers in a grocery store who are stocking shelves.
 
This one is my new favorite; we have a few workers who have decided that the perfect place to nap is high up in a power line tower.  When a worker has a dream and falls only to be caught by his harness and lanyard causing injury to his back, does he have a case in that he did not actually fall to the ground?
 

 
It is not necessary for the plaintiff to fall to the ground to have a valid § 240(1) claim.  It is not uncommon for a plaintiff to start to fall from a ladder and to catch himself only to injure his shoulder.  See the Monfredo v Arnell Constr. Corp. case below.  The fact that this plaintiff was sleeping is not one that would ever make it to the jury.  I guarantee that he and his co-workers would testify all day long that they were hard at work.  How can anyone sleep in a spot like that?
 
That is all we have for this month; hope you enjoy this edition and as always, feel free to share with anyone not on our distribution list.

 
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.

 

 

Appellate Division, First Department
April 2, 2019
Ajche v Park Ave. Plaza Owner, LLC

 
Plaintiff allegedly was injured while insulating air-conditioning ducts in the kitchen ceiling of a restaurant under construction. Park owned the property and leased it to 53rd Street to operate a restaurant. 53rd Street retained CPM as the general contractor, but also directly hired plaintiff's employer, Cobra, as the contractor to perform the kitchen HVAC work.
 
The incident was unwitnessed and plaintiff admitted he had no recollection of the fall. He claims he fell because the A-frame ladder on which he was working “moved” based on what his foreman had allegedly told his wife. Yet his foreman testified he fell from a scaffold, as he saw plaintiff on the scaffold when he went to get coffee, and found him lying on the floor near the scaffold when he returned. CPM's superintendent testified he heard a noise and an impact, and found plaintiff on the floor a few feet away from a scaffold.
 
The trial court denied plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim, denied Park’s and CPM’s motions for summary judgment dismissing that claim, denied Park’s and 53rd Street’s contractual indemnification claims against it, and declined to grant Park’s request for defense costs from 53rd Street, CPM, and Cobra. 
 
Labor Law § 240(1) (DRA)
The First Department reversed the trial court, as plaintiff demonstrated entitlement to partial summary judgment on his Labor Law § 240(1) claim. Although the conflicting testimony raised an issue of fact as to whether plaintiff fell off a ladder or a scaffold, the Court held he demonstrated that, under either version of the accident, his fall was caused by an inadequate safety device for his job, and defendants failed to raise a triable issue of fact on that issue.
 
Although plaintiff has no specific recollection of the ladder moving, he also testified that, immediately before the fall, he was standing on the second to the last rung up, with his hands over his head toward the duct, which he could barely reach. The Court held such testimony establishes prima facie that the ladder did not provide proper protection for plaintiff, and because the record was clear that the ladder did not prevent him from falling such that his inability to identify the precise manner in which he fell was immaterial. If he fell from the scaffold, it was undisputed that the scaffold from which plaintiff purportedly fell had no guardrails, which the Court deemed sufficient to establish a prima facie claim that it was an inadequate safety device.
 
As for CPN, the Court held that it was an appropriate labor law defendant because although it was not retained by Cobra for the HVAC work, it oversaw the entire project and coordinated Cobra’s work with other trades such that it was deemed liable as a general contractor.
 
PRACTICE POINT:  Where there are separate causes for the injury, and both of them support liability under §240(1), the motion for summary judgment by plaintiff will be granted. It is only where one version supports the §240(1) claim, and one version does not that the question of fact exists. 
 
Indemnity Issues in Labor Law (SEP)
The contract between 53rd Street and CPM requires CPM to indemnify 53rd Street from any “claim arising out of, in connection with, or as a consequence of the performance or nonperformance of [CPM’s] or any Subcontractor’s Work”, and the Court found plaintiff’s claim arose in connection with CPM’s work although “any Subcontractors” was deemed to only include the subcontractors CPM retained.
 
As to Park, although the signature line in the 53rd Street/CPM contract was blank, “an unsigned contract may be enforceable, provided there is objective evidence establishing that the parties intended to be bound,” citing Flores v Lower E. Side Serv. Ctr., Inc., 4 NY3d 363, 369 (2005). Since CPM purchased insurance policies naming Park as an additional insured, the Court held such conduct demonstrates its intent to indemnify Park, and that Park is entitled to reimbursement of reasonable defense costs from CPM and Cobra, but not 53rd Street.
 


Mora v Wythe & Kent Realty LLC
April 2, 2019
Appellate Division, First Department

 
The trial court granted plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim based on his deposition testimony, which established that a proximate cause of his injury was the unsecured scaffold planks which tipped when he stepped on them.
 
Labor Law § 240(1) (DRA)
The First Department unanimously affirmed, finding that, contrary to defendants’ contention, plaintiff was not the sole proximate cause of his accident and rejected defendant’s recalcitrant worker defense. The Court reiterated that if a statutory violation is a proximate cause of an injury, then plaintiff cannot be solely to blame for the injury.
 
PRACTICE POINT:  When the cause of the fall was an unsecured board, which tipped when plaintiff stepped on it, the court is always going to grant summary judgment on the §240(1) claim.

 

Sqaquicaray v Consolidated Edison Co. of N.Y., Inc.
April 2, 2019
Appellate Division, First Department

 
Plaintiff allegedly was injured in the course of unloading a two-ton steel plate owned by defendant Con Ed, after transporting it to the site by truck. The trial court granted plaintiff's motion for summary judgment on the Labor Law § 240(1) claim, and denied third-party defendant Clean’s motion to dismiss the Labor Law §§ 240(1) and 241(6) claims.

Labor Law § 240(1) (DRA)
The First Department held plaintiff made a prima facie showing that his work was covered under Labor Law § 240(1) because witnesses testified Clean routinely unloaded steel plates at the site for the purpose of covering areas excavated for electrical work. Clean performed this work pursuant to a contract that required it to provide steel plates at excavation sites owned by defendant including the site, and also required Clean to perform work ancillary to other enumerated tasks such as removing construction-related debris and installing barricades for excavation work.
 
The Court rejected Clean’s claim that plaintiff unloaded the plate merely for storage purposes since the Court of Appeals has rejected an interpretation of Labor Law § 240(1) that would compartmentalize a plaintiff's work and exclude preparatory work essential to the enumerated act from the statute's coverage.
 
PRACTICE POINT:  The fact that plaintiff was doing work on the site and that others were engaged in construction activities, not simply engaging in preparatory work brings plaintiff under the protection of the labor law. I would opine that had plaintiff been on site to determine solely what work may need to be done in the future, or to estimate future work, that the defense would have a strong case; but when plaintiff is engaged in actual work, which work is a part of the ongoing project, a project for which a contract is in place, that he would be afforded the protection of § 240(1).
 
Labor Law § 241(6) (MAS)
Since the trial court properly granted partial summary judgment in favor of plaintiffs on the Labor Law § 240(1) claim, the Fourth Department held Clean's remaining arguments, concerning plaintiff's Labor Law § 241(6) claim, were academic.
 
 

Weaver v. Gotham Constr. Co. LLC
April 2, 2019
Appellate Division, First Department

 
Plaintiff testified that he was employed by third-party defendant, whose superintendent directed his work, and he never took direction in the performance of his work from defendant’s representatives who he never saw at the work site. At one moment, he was reaching toward the control panel of the motorized hydraulic drill lift he was operating and the next he was pinned to the wall by the drill. He denied that he lost his footing. The trial court granted defendants Gotham and 44th Street Development’s motion for summary judgment dismissing the the Labor Law §§ 241(6), 200, and common-law negligence claims against them.

Labor Law § 241(6) (MAS)
The First Department unanimously affirmed; finding defendants prima facie established Industrial Code (12 NYCRR) regulation § 23-1.7(d), which deals with slipping hazards, and 1.7(e), which deals with tripping hazards, do not apply to the facts of this case in light of plaintiff’s description of his incident.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed dismissal of the Labor Law § 200 and common-law negligence claims. Plaintiff’s testimony that his superintendent directed his work and he never took direction from defendants, or saw them on the worksite, demonstrated defendants did not control the method and means of the injury-producing work.
 
 

Antonio v West 70th Owners Corp.
April 4, 2019
Appellate Division, First Department

 
Plaintiff allegedly was injured after slipping and falling on stairs because he was directed to remove his boots while working. The trial court denied defendants motions for summary judgment dismissing the Labor Law § 200 and negligence claims.

Labor Law § 200 and Common-Law Negligence (ESB)
The First Department reversed the trial court’s order and granted summary judgment to defendants, finding defendants demonstrated they did not exercise supervisory control over the means and methods of the work. Their principals testified they were not home on the day of the incident and they never asked anyone to remove their boots. Moreover, plaintiff testified, at first, he refused to remove his boots until his supervisor warned him he would be fired if he did not remove them. His supervisor gave him the ultimate direction to remove his boots, thus demonstrating the employer’s supervisory control over the injury-producing work. Moreover, the record demonstrated the stairs were not in a dangerous condition, as plaintiff admitted there were no observable defects and he slipped solely because he was wearing socks with no boots.

 

Espinoza v Fowler-Daley Owners, Inc
April 4, 2019
Appellate Division, First Department

 
Plaintiff fell and allegedly was injured after specifically requesting a harnesses and tie-off points for safety lines on and prior to the day of his incident. The trial court granted plaintiff's partial motion for summary judgment as against Fowler on the issue of Labor Law § 240(1) liability.

Labor Law § 240(1) (DRA)
The First Department unanimously affirmed as plaintiff's post-note of issue summary judgment motion was not premature. If Fowler needed to conduct additional nonparty depositions in order to successfully oppose the motion, then it should have either deposed those witnesses during the nearly two years that discovery was open in this case or moved to vacate the note of issue on that basis. The Court held Fowler cannot cite its own inaction as justification to deny plaintiff's summary judgment motion. 
 
The Court also held plaintiff's motion was properly granted, as he established prima facie that Fowler failed to provide equipment such as the harnesses and tie-off points for safety lines, which plaintiff requested prior to his accident, in order to give proper protection to individuals involved in pointing its building. The Court rejected Fowler’s argument that plaintiff was the sole proximate cause of the accident because if a statutory violation is a proximate cause of an injury, then plaintiff cannot be solely to blame for it.
 
PRACTICE POINT:  If the defense has not sought to depose witnesses, and the Note of Issue has been filed and not objected to, it cannot come as a surprise that the court is not going to deny a summary judgment motion on the basis that defendant wants to conduct further discovery, specifically further deposition of non-party witnesses.
 
 

Roque v 475 Bldg. Co., LLC
April 16, 2019
Appellate Division, First Department

 
Plaintiff allegedly was injured when, while in the process of demolishing a sidewalk bridge at premises owned by defendants, a nail he was attempting to remove with a hammer struck him in the eye. The trial court denied 475 Building’s motion for summary judgment dismissing the Labor Law § 241(6) claim based on a violation of Industrial Code regulation 1.8(a), which states that eye protection equipment “suitable for the hazard involved shall be provided for an shall be used by all persons … while engaged in any … operation which may endanger the eyes.”

Labor Law § 241(6) (MAS)
The First Department unanimously affirmed as the issue of whether demolishing a sidewalk bridge and removing nails are activities covered by regulation 1.8 is a question of fact, and the record presents triable issues of fact as to whether plaintiff was the sole proximate of his injury.
 
 

Wilk v Columbia Univ.
April 28, 2019
Appellate Division, First Department

 
The main action was commenced after decedent, while employed by Breeze at a construction site, sustained fatal injuries after falling through an elevator shaft window that fourth third-party plaintiff, ACT, removed and covered with a plastic sheet. The subcontract between Breeze and ACT required ACT to obtain insurance naming Breeze as an additional insured and containing a waiver of subrogation clause in favor of Breeze, and ACT obtained such a policy from Century.
 
The trial court ultimately granted summary judgment to plaintiff, the administrator of decedent’s estate, on the Labor Law claims. In addition, it determined ACT was required to indemnify the building owner and construction manager because the accident arose out of ACT’s work and fell within the broad language of the contractual indemnity agreement between ACT and Breeze.
 
The trial court also granted fourth third-party defendant, Breeze’s motion to amend its answer to assert the affirmative defenses of waiver of subrogation and anti-subrogation and, upon amendment, to dismiss the fourth third-party complaint.

Indemnity Issues in Labor Law (SEP)
The First Department unanimously affirmed as to Breeze’s motion to amend because ACT failed to show that Breeze’s reliance on the same contract ACT relies on has “hindered [ACT] in the preparation of [its] case” or “prevented [it] from taking some measure in support of [its] position.”
 
The Court also affirmed dismissal of the fourth third-party action as although ACT is the named third-party plaintiff, its insurer, Century, is the real party in interest because it is covering ACT’s defense and liability. As a result, the Court held the waiver of subrogation must apply to ACT’s claims, and permitting ACT to maintain a claim against Breeze, when both are insured by Century, would violate the anti-subrogation rule.

 

Monfredo v Arnell Constr. Corp.
April 23, 2019
Appellate Division, First Department

 
Plaintiff slipped on scaffolding, but did not fall to the floor. He testified the railing on the scaffold was 8 feet high and that when he slipped and grabbed onto the scaffold to prevent a fall, he did not actually hit the floor of the scaffold. However, his legs dangled from the side of the scaffold. Soon after the accident, he signed a statement stating he slipped on water and not on any materials. At his deposition, he stated that he knows he slipped on some object because his foot did not make contact with the floor.
 
The trial court granted plaintiff’s motion for summary judgment on the Labor Law § 240(1) claim, and denied defendants Arnell, the Department of Education of the City of New York, and NYC School Construction’s motion for summary judgment on plaintiffs’ §§ 240(1) and 241(6) claims, the latter of which was predicated on an alleged violation of regulation 5.3(e).

Labor Law § 240(1) (DRA)
The First Department unanimously affirmed the lower court with respect to the § 240(1) claim as the statute does not require a complete fall from an elevated safety device for an event to come within its protection (Messina v City of New York, 148 AD3d 493 [1st Dept 2017]). Conversely, the Court held the trial court properly denied that portion of defendants’ motion seeking dismissal of that claim, citing Augustyn v City of New York, 95 AD3d 683 (1st Dept 2012).
 
PRACTICE POINT:  Where the plaintiff does not actually fall to the ground § 240(1) may still be implicated if the plaintiff is injured while in the course of preventing himself from falling.  The typical case is where a plaintiff is on a ladder and when the ladder tips, moves or shakes he grabs something to prevent himself from falling and sustains a shoulder injury.

Labor Law § 241(6) (MAS)
The First Department unanimously reversed and dismissed the Labor Law § 241(6) claim, which was not viable pursuant to Industrial Code regulation 5.3(e) because the record shows the scaffold at issue was not elevated more than seven feet.
 
 

Vazquez-Tineo v 1764-1766 Westchester Ave., LLC
April 23, 2019
Appellate Division, First Department

 
Plaintiff allegedly fell from an unstable ladder that collapsed while he was painting. 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 plaintiff established entitlement to judgment as a matter of law by his testimony that he fell from an unstable ladder that collapsed while he was painting. In opposition, defendants submitted evidence, including testimony of a supervisor of the job site, which the Court held raised triable issues of fact as to the circumstances surrounding the accident, including what ladder plaintiff was using when he fell.
 
PRACTICE POINT:  Here we have a case where there are two versions of the accident and one of them creates liability under §240(1) and one of them does not.  This is unlike the case above where the court held that under either version that either safety device, there a ladder or a scaffold, failed to provide adequate protection.  Here with two ladders in question it appears that only one of them would have failed to provide adequate protection so a question of fact exists as to which ladder the plaintiff was using at the time of the fall.
 
 

Uzeyiroglu v Edler Estate Care Inc.
April 30, 2019
Appellate Division, First Department

 
Plaintiff allegedly was injured when he fell off of a ladder while performing construction work for his employer, Tebbens, at a residential property. The trial court denied plaintiffs’ motion for partial summary judgment on his Labor Law § 240(1) claim against defendant Edler.

Labor Law § 240(1) (DRA)
The First Department unanimously affirmed, finding plaintiffs failed to establish, as a matter of law, that Edler was a “general contractor”, i.e., had the ability to control Tebben’s work or stop it. The record reflected that although Edler was hired to “supervise” the project, Edler did not hire, retain or pay any of the contractors working at the premises. Moreover, the homeowner testified that he “assume[d]” that Edler had safety responsibilities and that it was his understanding that Edler had the authority to stop work on the job site if an unsafe condition arose.
 
However, the Court noted that Edler’s principal denied that he had the authority to stop the work at the premises, and the agreement between Edler and the homeowner does not specifically confer upon Edler the authority to stop the work if an unsafe condition was observed.  Rather, it provides that part of Edler's “site supervision” responsibilities included supervising “day to day operations” of the site and trade. Accordingly, the Court held that an issue of fact remained as to whether this includes supervision of the safety conditions.
 
PRACTICE POINT:  The point has been made many times but it is worth repeating, read the contracts.  The basis for determining if a party is a valid defendant as a contractor is whether or not the contractor has the authority to supervise, direct or control the injury-producing work.  There will also be liability for a defendant who actually does so.  Here the contract did not clearly provide that authority to the defendant, and thus there was a question for and whether they were not a valid defendant and therefor the § 240(1) claim was dismissed as to them.
 
 

Rossi v 140 W. JV Mgr. LLC
April 30, 2019
Appellate Division, First Department

 
Plaintiff, an electrician, allegedly was injured when he tripped and fell over construction debris in what he contended was a passageway. The trial court granted plaintiff's motion for partial summary judgment on his Labor Law § 241(6) claim predicated on violations of Industrial Code regulations 1.7(e)(1) and (2) against defendants 140 West Street, LLC and Vanquish.

Labor Law § 241(6) (MAS)
The First Department unanimously affirmed summary judgment to plaintiff because the area where he fell was, by definition, a passageway, as he tripped over Vanquish’s demolition debris along the only route he could take to return to his work area with a ladder, and Vanquish left debris on a floor where plaintiff was required to pass in the course of his work.
 
The Court rejected defendant’s argument that the debris, which consisted of cables from elevator shaft demolition, was inherent in, or an integral part of, plaintiff’s or Vanquish’s work at the time of his incident. Rather, it constituted it an accumulation of debris from which Vanquish was required to keep work areas free.
 
 

Valdez v Turner Constr. Co.
April 3, 2019
Appellate Division, Second Department

 
Defendant Skidmore was retained by property owner DASNY to provide architectural, engineering, and construction management services for a project. Skidmore, in turn, retained defendant Turner to provide construction management services for the project. DASNY separately contracted with defendant KJC, to perform roofing work. Plaintiff was employed by Plant Fantasies as a landscaper performing landscaping on the fifth-floor roof of the property.
 
Plaintiff was in the process of detaching a bag of soil that weighed at least 2,500 pounds from a crane that had hoisted the bag up to the fifth-floor roof. While the bag of soil was still attached, the crane lifted, causing the straps connecting the bag to the crane to catch plaintiff’s hand and lift him off the roof. He freed his hand from the strap and fell to the roof.
 
The trial court denied the motion of Turner and Skidmore for summary judgment dismissing the amended complaint against them and for summary judgment on their cross-claims against KJC for contractual indemnification, and granted plaintiff's motion for summary judgment on his Labor Law §§ 240(1) and 241(6) claims against Turner and Skidmore.
 
Labor Law § 240(1) (DRA)
The Second Department affirmed as to plaintiff’s motion for liability against Turner and Skidmore since the deposition of plaintiff’s coworker failed to demonstrate that the statute had not been violated or that plaintiff failed to follow instructions that had been given to him regarding detaching bags of soil from the crane.
 
The Court also affirmed the denial of Turner and Skidmore’s motions under Labor Law § 240(1), finding that Skidmore was subject to liability as a contractor since it remained “responsible for coordinating and supervising the entire construction project and was invested with a concomitant power to enforce safety standards and to hire responsible contractors.” The Court also found Turner was subject to liability as an agent of the owner since, with respect to safety, it had broad responsibility for ensuring site safety, and it oversaw the planning of the craning operation, specifically with regard to safety. Turner thus had the ability to control the activity that brought about plaintiff's injuries.
 
The Court also held Turner and Skidmore failed to demonstrate the statute was inapplicable since their submissions demonstrated that plaintiff’s injuries flowed directly from the application of the force of gravity to the object, namely, the 2,500-pound bag of soil. Further, they did not submit evidence showing that the protections they put in place were sufficient to protect plaintiff from the gravity-related risks of the craning operation.
 
PRACTICE POINT:  While I agree with the court’s finding that §240(1) was applicable to the plaintiff’s claim, I think the logic is a bit off.  The court held that §240(1) was violated as the injury was caused by the hoisting of the bag of soil.  As the plaintiff was lifted off the roof and injured in the resulting fall §240(1) would be applicable.  It is not the force of gravity applied to the bag of soil that seems to have caused the injury but the application of gravity to the plaintiff’s body that caused the injury per the opinion.

Labor Law § 241(6) (MAS)
The Second Department also affirmed denial of Turner and Skidmore’s motions seeking dismissal of the Labor Law § 241(6) claim predicated on Industrial Code regulation 8.1(f)(5) because plaintiff’s testimony that his hand became caught when the crane began to hoist and that the crane pulled him several feet off the roof while his hand was caught established that the crane hoisted, or otherwise traveled, while plaintiff was attached to the load, thereby violating that regulation.

Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department modified the trial court’s order by granting summary judgment on plaintiff’s Labor Law § 200 and common-law negligence claims against Skidmore, inasmuch as it did not have any control or authority over the means and methods of the injury producing work. The court affirmed denial of summary judgment as to Turner’s liability under Labor Law § 200 and common-law negligence, finding Turner failed to establish its entitlement to judgment as a matter of law in light of its direct authority over the craning operation that brought about plaintiff’s injuries, including approving the crane-operation plans, as well as its ability to intervene in and stop unsafe work practices on the job.

Indemnity Issues in Labor Law (SEP)
The Second Department affirmed denial of Turner’s summary judgment motion on its contractual indemnity cross-claim against KJC, as Turner failed to eliminate triable issues of fact as to whether it was free from negligence with respect to plaintiff’s incident. However, the Court held Skidmore should have been granted contractual indemnity against KJC because it was free from negligence, even though the Court found it was the owner’s representative under KJC’s contract.
 
 

DeSerio v City of New York
April 10, 2019
Appellate Division, Second Department

 
Plaintiff, a signalman employed by nonparty Silverite, allegedly was injured when an extension ladder he had ascended slipped out from under him, causing him to fall 20 feet to the ground.  He testified that a carpentry foreman directed him to retrieve the subject ladder, which he ascended without a spotter, and which shifted and shook before the bottom “kicked out,” causing him to fall. The trial court denied his motion for summary judgment on the Labor Law § 240(1) claim.
 
Labor Law § 240(1) (DRA)
The Second Department reversed, finding that plaintiff established, prima facie, through his deposition testimony that the statute was violated and said violation was a proximate cause of his injuries. The burden then shifted to defendants to present some evidence the device furnished was adequate and properly placed, and that plaintiff’s conduct may be the sole proximate cause of his injuries, which the Court held defendants failed to do. 
 
PRACTICE POINT: Where plaintiff falls due to the ladder slipping, twisting, moving, jumping, dancing, bouncing, or otherwise changing position and causing plaintiff to fall, the court will grant summary judgment on § 240(1). The decision discusses that plaintiff climbed the ladder without a spotter, but recall that a person cannot, under most circumstances, be a safety device.  


 
Morales v 1415, LLC
April 10, 2019
Appellate Division, Second Department

 
Plaintiff allegedly was injured when he fell from a ladder while working 8 feet above the ground. His complaint alleged the premise was a three-family dwelling. Defendant cross-moved, among other things, for leave to serve a second amended answer as the first amended answer “had portions of an answer from another case mistakenly interposed with answer for this case” and erroneously admitted defendant was negligent in causing plaintiff’s injuries and that the defendant “controlled and supervised the construction in which the [p]laintiff was injured.”
 
During the course of the litigation, plaintiff’s and defendant’s counsel executed a stipulation in which defendant waived the affirmative defense that the premises was a one or two-family dwelling exempt from the requirements of Labor Law §§ 240(1) and 241(6). The trial court denied third-party defendant’s motion to dismiss the third-party complaint or, in the alternative, to sever the third-party action, denied plaintiff's cross-motion for summary judgment on the Labor Law § 240(1) and common-law negligence claims, and granted defendant/third-party plaintiff's cross-motion for leave to serve a second amended answer.

Labor Law § 240(1) (DRA)
The Second Department reversed and denied defendant’s motion to serve a second amended answer because defendant did not seek, and was not granted, vacatur of the stipulation waiving the affirmative defense for one- or two-family homes. Since the trial court did not set aside the stipulation, the proposed amendment to assert the affirmative defense for one- or two-family homes contravenes the stipulation and was palpably improper. Further, the Court held that to add this affirmative defense after discovery was completed was clearly prejudicial.
 
Defendant, however, was allowed to amend its answer even though defendant’s motion was not made until after the parties had completed discovery and the note of issue had been filed. Nevertheless, the Court noted it was apparent that many of the errors defendant made in the first amended answer were evident to plaintiff, who was not prejudiced by granting defendant leave to serve a second amended answer to correct those obvious errors.
 
PRACTICE POINT:  The obvious point here is that while leave is freely given to amend pleadings which are mistakenly filed, if a party goes to the length of stipulating that an affirmative defense is withdrawn, and the underlying fact is therein admitted to, that is much more difficult to undo.  The lesson: be very careful what you stipulate to and, if you are going to stipulate to anything detrimental to your case, do so not on the merits and without prejudice.  Always better safe than sorry.
 
 

Dahlia v G&K Distrib. LLC
April 24, 2019
Appellate Division, Second Department

 
Nonparty AMX assigned plaintiff, an HVAC service technician, to service a heating unit for its customer, defendant S & K. The heating unit allegedly had not been working for three to four weeks. To enable plaintiff to reach the heating unit, which was in the ceiling, an S & K employee allegedly placed packets of shingles atop the forks of a forklift. The employee then raised the forklift while plaintiff stood atop the packets of shingles. As he was examining the heating unit, plaintiff allegedly slipped and fell off the raised packets of shingles. Approximately one week later, AMX dispatched another employee to service the subject heating unit. The trial court denied defendant's motion for summary judgment dismissing the Labor Law § 240(1) claim. 
 
Labor Law § 240(1) (DRA)
The Second Department reversed, finding S & K established its prima facie entitlement to summary judgment on the Labor Law § 240(1) claim through the deposition transcripts of plaintiff and the AMX employee who subsequently serviced the heating unit, which demonstrated that when plaintiff was injured, he was engaged in routine maintenance replacing a belt that usually needs replacing once a year and checking the pilot light.
 
The Court held this evidence showed plaintiff's work “involved replacing components that require replacement in the course of normal wear and tear” and thus did not constitute “repairing” or any other enumerated activity. The Court rejected plaintiff's contentions that “the distinction between routine maintenance and repairing does not turn solely on whether the work involves fixing something that is not functioning properly”, citing Barbarito v County of Tompkins, 22 AD3d 937, 938 (3d Dept 2005).
 
PRACTICE POINT:  The difference between repair and maintenance is clearly explained in this case and is noteworthy. Where the components that need to be replaced to make the product work again are of the type that typically wear out and need to be replaced, it is considered maintenance, and where they are not of that type, it is repair. I always seek to check the repair records where available to see if the parts are replaced on a regular basis.
 
 

Houston v State of New York
April 24, 2019
Appellate Division, Second Department

 
Claimant, an ironworker, allegedly was injured while working on part of a bridge replacement project. He was injured when iron posts that were suspended by a crane operated by a fellow employee fell and struck him on the head, causing a traumatic brain injury. The Court of Claims denied claimants’ motion for summary judgment on the Labor Law § 240(1) claim.

Labor Law § 240(1) (DRA)
The Second Department affirmed, finding claimant failed to establish his prima facie entitlement to judgment as a matter of law, since the evidence concerning the manner in which the load was secured and lifted was insufficient to establish that the posts fell due to the absence or inadequacy of an enumerated safety device. The Court held claimants further failed to eliminate all triable issues of fact as to whether claimant’s conduct was the sole proximate cause of the accident. Since claimants failed to meet their prima facie burden, the Court declined to consider the adequacy of the opposition papers.
 
PRACTICE POINT:  The lack of an expert opinion may well have been fatal to plaintiff’s summary judgment motion. The argument was that the method of lifting the posts was not adequate, yet plaintiff had no expert to opine what would have been adequate. Given the testimony of the crane operator that he raised the posts vertically and slowly, the obvious implication is that the choker was either insufficient for the task, and thus not an adequate safety device, or that plaintiff did not properly utilize the choker which was an adequate safety device, and that he was thus the sole proximate cause of his own injury. An expert who opined that the choker was not an adequate safety device could have potentially carried the day for plaintiff.
 
 

Rashid v Hartke
April 24, 2019
Appellate Division, Second Department

 
Plaintiff allegedly was injured while performing work on a brownstone facade of a dwelling. The trial court denied defendants’ motion for summary judgment dismissing the complaint based on the homeowner's exemption under Labor Law § 240(1) and 241(6). It also denied Defendant's motion as to Labor Law § 200 that they did not direct or control plaintiff's work. Plaintiff opposed the motion on the ground that there existed a triable issue of fact as to whether the dwelling was a single-family or multi-family home.

Labor Law § 240(1) (DRA)
The Second Department reversed; finding that although the subject building is classified as a multiple- or three-family dwelling, the deposition testimony of defendant demonstrates that the dwelling functions exclusively as a private home for defendants, who are a married couple. Thus, the Court held defendants established, prima facie, that the premises qualified as a single-family dwelling falling within the scope of the exemption. In opposition, the Court held plaintiff failed to raise a triable issue of fact as to whether the premises qualified as a single-family dwelling, and whether the site and purpose of the work was primarily residential or commercial
 
PRACTICE POINT:  It is of no matter what the property is classified as, if it is being used as a single-family house.

Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department reversed the trial court’s order and dismissed the Labor Law § 200 and common-law negligence claims against defendants, holding defendants demonstrated they did not have the authority to control or supervise the means and methods of plaintiff’s work, nor did they have actual or constructive notice of the dangerous condition alleged in order to impose liability against them, and plaintiff failed to raise a triable issue of fact. 
 
 

Singh v Nadlan, LLC
April 24, 2019
Appellate Division, Second Department

 
Plaintiff was an employee of nonparty R & D, which had been hired by defendant Nadlan to perform renovation work at a two-family residential dwelling. Nadlan owns the premises, and defendant Albaliya is one of the members of Nadlan. Plaintiff allegedly was injured when the A-frame ladder upon which he was working “suddenly and without warning shifted and slipped,” causing him to fall seven feet to the ground. The trial court denied defendants’ motion to dismiss the complaint against Albaliya, and granted plaintiffs’ cross-motion for partial summary judgment on liability under Labor Law § 240(1) claim.

Labor Law § 240(1) (DRA)
The Second Department reversed, finding that, as a limited liability company, Nadlan is a separate legal entity from its members and plaintiffs failed to establish, prima facie, their entitlement to judgment as a matter of law against Albaliya. Plaintiffs submitted no evidence to warrant piercing Nadlan’s corporate veil in order to hold Albaliya personally liable for plaintiff’s injuries. Rather, plaintiffs relied solely upon the allegations set forth in their complaint.
 
PRACTICE POINT: To pierce the corporate veil, plaintiff must prove that (1) the owners exercised complete domination of the corporation in respect to the transaction attacked; and (2) that such domination was used to commit a fraud or wrong against plaintiff which resulted in plaintiff's injury. Neither of these elements were present here and thus, the § 240(1) case was only valid against the LLC.
 
 

Leggio v State of New York
April 26, 2019
Appellate Division, Fourth Department

 
Claimant, an inmate, allegedly was injured when she tripped over a tree stump while performing grounds work at Albion Correctional Facility. The Court of Claims granted defendant’s motion for summary judgment dismissing the claim, and denied claimant’s cross-motion for summary judgment on the issue of liability.

Labor Law § 200 and Common-Law Negligence (ESB)
The Fourth Department affirmed summary judgment dismissing plaintiff’s claim because, while a correctional authority may owe a duty of care to provide a reasonably safe workplace for inmates directed to participate in a work program during incarceration, that duty does not extend to hazards which are part of or inherent in the very work being performed. Moreover, an open and obvious hazard is not actionable where it is inherent in the work.
 
In this case, plaintiff and her fellow workers were tasked with cleaning up the branches of a felled tree. Accordingly, the existence of the tree stump was both open and obvious and inherent in the work. Moreover, claimant admitted she was aware of the stump before she started working. Therefore, defendant also did not have a duty to warn her of the stump nor was it vicariously liable for her fellow inmate’s alleged failure to warn her of the stump.
 
PRACTICE POINT: As with Labor Law §§ 240(1) and 241(6), it is a defense to a cause of action under Labor Law § 200 that the alleged hazard is “inherent” in the work being performed. In other words, it is an intrinsic, fundamental, and implicit part of the work.

 

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

Regulation § 1.16(d), requiring that tail lines not exceed four feet, is sufficiently specific to sustain a Labor Law § 241(6) cause of action.

 
Macedo v J.D. Posillico, Inc., 68 AD3d 508, 891 NYS2d 46 (1st Dept 2009).
 

Macedo found a question of fact whether π’s tail line was longer than 4 feet as required under the reg, where π fell from a platform he and a coworker were working on, attempting to lift a cone hanging from a rope.

 

 

 

 

Labor Law Pointers
 
Editor
David R. Adams

Associate Editor
V. Christopher Potenza

Associate Editor
Steven E. Peiper

Associate Editor
Marc A. Schulz

Associate Editor
Eric D. Andrew

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Brian F. Mark
 
Associate Editor
Ashmita Roka 


Labor Law Team

 

 

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Dan D. Kohane
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