Labor Law Pointers - Volume VIII, No. 7

Labor Law Pointers

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

Volume VIII, No. 7
Wednesday, June 5, 2019

 

From the Editor:


Do you have a situation? We love situations. 
 
It appears that summer may eventually arrive in Buffalo, but as I sit here in JFK watching the sun rise it does look warm out there and we have great hope for the weekend. With any luck, I will not need to travel down here as often given our most recent additions. We have great news here at Hurwitz & Fine and specifically in our Labor Law Department. Our long suffering and hugely appreciated Brian Mark, the resident head of our metro NY office has been made a member of the firm. This is a well-earned position and we welcome him with open arms. In addition, we have added a second Labor Law attorney in the metro area with the addition of Michael Dischley as an associate. A graduate of St. John’s Law School, Michael has 5 years of experience practicing in Labor Law Defense and Risk Transfer and he is a great addition to the firm and our team. He is experienced in other areas as well, but we are trying hard not to let Jody know about that and to keep him to ourselves, so please don’t tell her. No one is happier than Brian Mark, who desperately needed the help down state. We now have capacity for further Labor Law work in the city.
 
On to the monthly photos. This first one could be interpreted in several ways. The worker either has the ultimate safety device on and has nothing to worry about, or he has led a life well lived, knows his ultimate destination and is prepared with his angel wings to meet St. Peter. Seriously, when he falls because he sneezes and is injured, does he have a Labor Law case?



Plaintiff here is clearly wearing a harness, but the attachment point on his back is empty. However, given that the reason plaintiff fell is because he sneezed and not because of any failure in the safety device, the ladder, it is not likely that it will be a § 240(1) case as there is no failure of an appropriate device.
 
Here, we have a plaintiff poised to work demolishing what appears to be a smoke stack. When he reaches a bit too far and falls from the inverted bucket of the excavator and is injured, does he have a § 240(1) case?



Well, demolition is a covered activity under § 240(1) so he has that going for him. Assuming he is being paid and thus he is an appropriate plaintiff, there is an owner of the smoke stack and that is a structure so he is good there, and the injury would be one caused by the application of gravity so he meets the proper criteria to have a valid labor law § 240(1) case. He is also foolish for attempting this.
 
Here, we have a plaintiff, or maybe even two depending on how the ladder falls, who are trimming a tree. When he, or they, fall do they have a valid Labor Law case?



Applying the usual analysis to the issues we shall assume plaintiff is being paid and thus is a valid plaintiff.  When he, or they fall from the ladder balanced and counterbalanced on the forks of the tow motor, the injury will be caused by the application of gravity. Where plaintiff’s case goes off the tracks in that the task they are undertaking, trimming a tree, is not any type of work on a building or structure. A structure is made of component parts, and a tree is not; thus, the project itself does not qualify. Now if plaintiff was trimming the tree as a part of a larger construction project then it would likely qualify, but simple tree trimming or cutting does not qualify as it is simply not a structure.
 
Love this one as plaintiff is working on a truck doing a repair to the suspension, with an inverted jack stand balanced on a floor jack on one end and a wood piece on the other. When the truck shifts landing on the plaintiff during this repair, is it a § 240(1) case?



Here, plaintiff is employed and thus is a person so employed and a valid plaintiff. There is an owner who could be a defendant and the truck, being made of component parts is a structure, and plaintiff is doing a repair which is an enumerated activity, so is this a § 240(1) case?  Not so fast says the court; auto repair is not the type of repair to which the extraordinary protections of the Labor Law are intended to apply.

If you're wondering about our methodology, we break down the defense of a Labor Law case into four distinct areas.  Is the defendant an appropriate defendant?  Is the plaintiff an appropriate plaintiff?  Is the overall project one that leads to providing the plaintiff with the protections of the Labor Law?  Is the specific task undertaken and thus the method of injury one to which the Labor Law applies?  This month, Eric Andrew has prepared an article entitled “You’re a Defendant in a Labor Law Case, But Should You Be?” which is available by simply clicking here.  He addresses the differences between owners, contractors and agents.

Lastly, don’t forget to subscribe to our other publications:
 
Coverage Pointers: This monthly electronic newsletter summarizes important insurance law decisions from appellate courts in New York State with the occasional snapshot across borders. Coverage Pointers, the electronic newsletter that started it all, continues to offer guaranteed publication every other Friday, and a read-at-a-glance summary of important decisions as they happen. Contact Dan Kohane at [email protected]  to be added to the mailing list.

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

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
May 2, 2019
Cutaia v Board of Mgrs. of the Varick St. Condominium

 
Plaintiff, third-party defendants’ employee, was allegedly knocked off the ladder when his hand touched a live wire and the subsequent shock which jolted him. When his incident occurred, he was installing plumbing pipes on an unsecured and unsupported A-frame ladder on premises leased by general contractor and defendant Michilli. The trial court denied plaintiff’s partial summary judgment motion his Labor Law § 240(1) claim.
 
Labor Law § 240(1) (DRA)
The First Department reversed and granted plaintiff summary judgment, finding the ladder plaintiff was using at the time of his incident inadequate to safely perform the assigned task because the only way he could gain access to his work area on the ceiling at the end of the room was by folding up the ladder and leaning it against the wall. The fact that the fall was precipitated by the shock did not change the Court’s analysis since “it is well-settled that the failure to properly secure a ladder and to ensure that it remain steady and erect is precisely the foreseeable elevation-related risk against which section 240(1) was designed to protect.”
 
Justice Tom’s dissent concludes that in the absence of any evidence that the ladder was defective or that other particular safety devices would have prevented the incident, plaintiff is precluded from summary judgment under Nazario v 222 Broadway, LLC, 28 NY3d 1054 (2016). Thus, Justice Tom would affirm the trial court’s denial of summary judgment to plaintiff as the majority’s decision essentially creates a special category of injury that circumvents a plaintiff’s responsibility of first establishing a prima face case of causation.
 
PRACTICE POINT:  The important point to take away here is that it is not a global finding that where a plaintiff receives a shock and falls from a perfectly good ladder, that it automatically is a §240(1) case. Here, the ladder was merely leaned against the wall and not fully open and thus not an appropriate safety device.
 
Labor Law § 241(6) (MAS)
Although defendants did not appeal the trial court’s finding that plaintiff is also entitled to summary judgment on his § 241(6) claim based on evidence that defendants violated Industrial Code (12 NYCRR) regulation 23-1.13(b)(3) and (4), the First Department held that whether plaintiff was at all at fault for the incident must await the trial as to damages.
 
 

DeMercurio v 605 W. 42nd Owner LLC
May 7, 2019
Appellate Division, First Department


Plaintiff allegedly slipped and fell on protective paper installed on the floor of an apartment unit under construction. He testified the paper in the area where he fell was torn, dirty, not properly taped to the walls, and was slippery because it was on top of a cleaning agent called "green dust." The trial court granted defendant’s summary judgment motion dismissing the Labor Law §§ 241(6), 200, and common-law negligence claims.

Labor Law § 241(6) (MAS)
The First Department unanimously reversed as the Labor Law § 241(6) claim was predicated upon a violation of Industrial Code (12 NYCRR) regulation § 23-1.7(d) and the Court held the alleged presence of green dust on the floor created a triable issue as to whether a “foreign substance” created a slippery condition on the floor, in violation of that regulation and whether such condition caused plaintiff’s incident.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department reversed the trial court’s decision and reinstated plaintiff’s claims pursuant to Labor Law § 200 and common-law negligence, finding the trial court incorrectly evaluated the claim under the “manner and means” (means and methods, manner and methods, etc.) standard. Instead, the “dangerous condition” standard should have been applied. Under that analysis, the facts demonstrated the green dust was a dangerous condition that existed prior to plaintiff's arrival at the job site, and it was not part of plaintiff work. Moreover, the general contractor, Tishman, employed at least 5 superintendents on the project who broadly supervised and controlled the work site, and conducted multiple daily walk-throughs. Therefore, a triable question of fact existed regarding Tishman’s notice of the green dust on the floor. Finally, the Court held the property owner offered no probative evidence regarding its lack of actual or constructive notice of the hazardous condition.
 
 

Djuric v City of New York
May 7, 2019
Appellate Division, First Department

 
Plaintiff allegedly was injured when a pipe saddle detached from an overhead ceiling pipe assembly and struck him. The trial court denied plaintiff’s motion for partial summary judgment on his Labor Law §§ 240(1) and 241(6) claims, granted defendants Shaw’s, the City’s, and EPA’s motion dismissing plaintiff’s complaint, and granted third-party defendant Bidwell’s motion to dismiss Shaw’s third-party complaint against it.
 
Labor Law § 240(1) (DRA)
The First Department affirmed the trial court’s dismissal of this claim because the pipe saddle that struck plaintiff was not an object that requiring securing for purposes of the undertaking since it was a permanent part of the structure.
 
PRACTICE POINT: Where the falling object does not require securing, it is not a § 240(1) case. Where the part is a permanent part of the building, there is no expectation it could fall and thus it can’t be an object which needs to be secured and ultimately is not a § 240(1) case.

Labor Law § 241(6) (MAS)
The First Department also affirmed dismissal of this claim since 1.7(a)(1) and 3.2(b) are inapplicable. First, plaintiff was not injured by debris that may have been falling from a ceiling demolition but instead from a fixture of the building which dislodged. Second, 3.2(b) entails protecting the stability of adjacent structures, not the stability of the building or structure allegedly being demolished.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed dismissal of plaintiff’s Labor Law § 200 and common-law negligence claims, holding defendants demonstrated lack of notice of any problem with pipe saddles. The construction manager's representative testified he regularly walked the site and saw no evidence of the alleged condition. Moreover, there were no complaints or prior similar incidents at the property. As for plaintiff’s constructive notice argument, the Court held the defective pipe saddle was latent, in other words, the construction manager's representative's inspections could not have alerted it to the potential hazard of the object becoming dislodged and falling.
 
 

Tropea v Tishman Constr. Corp.  
May 7, 2019
Appellate Division, First Department

 
Plaintiff allegedly was injured when a cable tray atop two ladders fell from atop and hit his head. The AECOM defendants/third-party plaintiffs leased the premise, and USIS was the general contractor for the work being performed. The trial court granted plaintiff's motion for summary judgment on his Labor Law § 240(1) claim and denied AECOM's and USIS’ motions to dismiss that claim.
 
Labor Law § 240(1) (DRA)
The First Department unanimously affirmed; finding the cable tray that fell on plaintiff’s head was an object that required securing to prevent it from falling, that the distance it fell was not de minimis, and that securing it against falling would not have been contrary to the purpose of the work. Second, the Court held that USIS was liable as an agent of the owner because under the terms of the subcontract, it had been delegated with the authority to control the work. Third, AECOM, as premises lessee who contracted for the work, was also liable under Labor Law § 240(1) as an agent of the owner.
 
PRACTICE POINT: Who is an appropriate defendant in a Labor Law case is a critical issue. Here, the court explains that a defendant who has been delegated control is an agent of the owner, even if they do not exercise that authority. Recall that this does not mean that the owner is any less liable as liability for a § 240(1) claim is absolute and each is 100% liable. That is when we turn to the risk transfer options of common-law indemnity, common-law contribution, contractual indemnity and additional insured status.
 
 

Urquiza v. Park & 76th St., Inc.  
May 14, 2019
Appellate Division, First Department

 
Decedent was injured and killed when he fell out of an open while working on defendants, Mary L. and Edmund Carpenter’s apartment (the defendant Carpenter owners). The trial court granted plaintiff summary judgment on Labor Law § 240(1) and denied the defendant Carpenter owners’ motion to dismiss the §§ 240(1) and 241(6) claims against them. The trial court also denied defendant/third-party plaintiff Nordic’s motion for summary judgment dismissing the complaint, and cross-claims.

Labor Law § 240(1) (DRA)
The First Department held the homeowners’ exemption to liability under Labor Law §§ 240(1) and 241(6) clearly applies to the defendant Carpenter owners because they did not direct or control the work in their apartment they intended to use for personal use. The Court also affirmed the trial court’s decision in granting plaintiff summary judgment because decedent’s action in standing on the radiator casing in front of the open window to complete his work was not the sole proximate cause of the accident as he was not provided proper safety devices for working next to the open window.
 
PRACTICE POINT: Where the dwelling in which plaintiff is injured is in a multi-unit building, things can get complicated. Where, as here, the unit is a co-op, the owner of that unit owns that specific location and thus is afforded the protection of the exception. Had plaintiff been working in the common area, the exception would not apply. Additionally, the sole proximate cause defense did not apply. The essential elements of the sole proximate cause defense are that plaintiff must be furnished with an appropriate safety device which is available to him, he must have been instructed to use that device or have known he was expected to use that device and he must misuse or fail to use the available and appropriate safety device for no good reason. Here, plaintiff was not provided with an available and appropriate safety device.

Labor Law § 241(6) (MAS)
Although plaintiff abandoned their § 241(6) claim except insofar as predicated on Industrial Code regulation 1.7(d), the First Department found issues of fact as to whether a slippery condition existed in violation of the regulation since decedent was working while standing on an unsecured plywood board atop the radiator casing next to an open window during a rainstorm.

Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed denial of Nordic’s motion for summary judgment as to plaintiff’s Labor Law § 200 and common-law negligence claims, citing issues of fact as to whether Nordic's site supervisor directed that the work be performed without the authorization of decedent’s employer and whether Nordic's site supervisor was an independent contractor for whose acts it is not liable.
 
 

Bellucia v CF 620
May 16, 2019
Appellate Division, First Department

 
A manually operated freight elevator in a building undergoing construction dropped suddenly from the fourth floor to the basement while carrying plaintiff and others. Defendant Robinson Elevator recently serviced the elevator for conditions implicated in the incident, and experts identified a broken switch/spring inside the elevator control handle and improperly installed brakes as proximate causes of the incident. Defendant Schindler Elevator was responsible for maintaining the elevator of the building owned by defendant CF620.
 
The trial court granted Schindler Elevator’s summary judgment motion dismissing the Marandola plaintiffs’ complaint and the common-law indemnity cross-claims of CF620, granted the Marandola plaintiffs’ and other plaintiffs’ cross-motion for summary judgment against CF620 on the Labor Law § 241(6) claim predicated upon a violation of Industrial Code regulation 1.7(f), and granted the Fund and Henegan’s summary judgment motions for indemnification against CF620.

Labor Law § 241(6) (MAS)
The First Department reversed and denied the Marandola plaintiffs’ and the other plaintiffs’ summary judgment because there are issues of fact as to whether CF620 was negligent and whether any such negligence was a proximate cause of the incident because Robinson Elevator allegedly repaired the control handle and performed modifications on the brake system in the weeks preceding the incident and also serviced the elevator and told CF620 that the free fall was caused by operator error.

Labor Law § 200 and Common-Law Negligence (ESB)
The First Department held plaintiffs’ negligence claims against Robinson Elevator and Schindler Elevator should not have been dismissed because factual issues existed as to whether they were negligent in maintaining the freight elevator and whether such negligence proximately caused the accident.

Indemnity Issues in Labor Law (SEP)
As there were factual issues whether, pursuant to its service contract, Schindler properly serviced the governor, a device that detects and arrests dangerous elevator speeds, and whether it properly serviced the switch/spring inside the elevator control handle, the Court held Schindler Elevator was not entitled to dismissal of the Marandola plaintiff’s cross-claim for common-law indemnification against it.
 
 

Hernandez v 601 W. Assoc.
May 21, 2019
Appellate Division, First Department

 
Plaintiff allegedly was injured when a refrigerator he was pushing up the stairs from the basement of a restaurant fell on him. The trial court denied defendant restaurant owner’s summary judgment motion to dismiss the Labor Law §§ 240(1) and § 241(6) claims predicated on Industrial Code (12 NYCRR) § 23-6.1(d) and denied plaintiff's summary judgment on his § 240(1) claim but granted the motion to the extent it sought to amend the bill of particulars to allege a violation of 12 NYCRR 23-6.1(d).
 
Labor Law § 240(1) (DRA)
The First Department held that notwithstanding the work being performed in other parts of the premises, and contrary to his own characterization of his work as demolition, plaintiff, whose task was to remove debris and garbage, including the refrigerator, from the basement, was not engaged in a protected activity under Labor Law §§ 240(1) and § 241(6) at the time of his incident, citing Toro v Plaza Constr. Corp., 82 AD3d 505 (1st Dept 2011), lv denied 18 NY3d 801 (2011).
 
PRACTICE POINT: Hats off to the First for this logical decision for not buying into plaintiff’s claim that removing a refrigerator from the basement is demolition or linking the removal of the refrigerator to work being done in other areas of the building. 
 
 

Colon v Third Ave. Open MRI, Inc.
May 28, 2019
Appellate Division, First Department

 
Plaintiff, who sometimes worked as a handyman for defendants, allegedly was injured when he fell from a six-foot A-frame ladder he was climbing to fix a leak from the ceiling in defendant's x-ray room. The trial court denied plaintiff's partial summary judgment motion on his Labor Law § 240(1) claim and granted defendants' cross motion to dismiss that claim.
 
Labor Law § 240(1) (DRA)
The First Department unanimously affirmed; finding the plumbing system was not the source of the leak and plaintiff was engaged in routine maintenance, rather than “repairing;” therefore, defendants could not be held liable for plaintiff’s injury under § 240(1).
 
PRACTICE POINT: Once again, the First Department applied logic and came to a valid conclusion. Here, they found that water spilled on the floor the level above, which came through the ceiling below was not something that needed repair but rather that cleaning up water is maintenance regardless of what plaintiff thought was the problem originally. By my count, that is First Department 2, strained claims 0.
 
 

Martinez-Gonzalez v 56 W. 75th St., LLC
May 28, 2019
Appellate Division, First Department

 
Plaintiff allegedly fell from a scaffold he was supplied with and directed to use without railings, and that he fell off when the scaffold tipped as one wheel broke through the floor on which he was standing. The trial court granted plaintiff’s motion for partial summary judgment on liability against 56 West and Brusco under Labor Law § 240(1) and granted 56 West’s and Brusco’s summary judgment motion on its claim against Pearl for contractual indemnification.
 
Labor Law § 240(1) (DRA)
The First Department unanimously affirmed as plaintiff was not provided with any other safety devices to prevent his fall from the scaffold, and this evidence establishes a prima facie violation of Labor Law § 240(1).
 
PRACTICE POINT: When a wheel breaks off the scaffold, causing it to tip and plaintiff to fall causing injury, it should come as no surprise to any regular reader of Labor Law Pointers that this results in summary judgment for plaintiff.

Indemnity Issues in Labor Law (SEP)
Plaintiff’s employer, Pearl, signed an agreement in connection with the renovation work to perform sheetrocking and taping work at the job site. Accordingly, the Court held this agreement clearly and unambiguously obligated Pearl to defend and indemnify 56 West and Brusco for personal injuries. Further, the Court held that since 56 West and Brusco had no involvement in plaintiff’s work, their liability was strictly vicarious to plaintiff and therefore, under these circumstances, they were entitled to contractual indemnification by Pearl.
 
 

Toussaint v Port Auth. of N.Y. & N.J.
May 30, 2019
Appellate Division, First Department

 
Plaintiff allegedly was injured when he was struck by a power buggy operated by the operating engineer, employed by defendant. Plaintiff testified the operating engineer lost control and fell off the buggy, which then struck plaintiff. He further testified the operating engineer was not supposed to be in his work area “messing with that machine.” The trial court denied defendant Port Authority of New York and New Jersey's summary judgment motion dismissing the Labor Law § 241(6) claim predicated on Industrial Code (12 NYCRR) § 23-9.9(a).

Labor Law § 241(6) (MAS)
Industrial Code regulation 9.9(a) is entitled “assigned operator” and states that “[n]o person other than a trained and competent operator designated by the employer shall operate a power buggy.” Under 1.4(b)(17), a “designated person” is defined as a “person selected and directed by an employer or his authorized agent to perform a specific task or duty.” The First Department held that 9.9(a)’s requirement that “designated person” operate a power buggy is sufficiently specific to support a § 241(6) claim, and granted plaintiff’s request to search the record and grant him summary judgment as there is no disputing defendant’s liability under the regulation because it was undisputed that the operating engineer was not “designated by the employer” to operate the power buggy.
 
Justice Tom’s dissent argues that 9.9(a) is merely a general safety standard that is insufficiently specific to give rise to a non-delegable duty under the statute because the regulation must be considered as a whole and not relied on in part, which is the basis for the majority’s opinion, in order to determine whether the regulation at issue supports the purpose for which it is being employed.

 

Lenge v Eklecco Newco, LLC
May 8, 2019
Appellate Division, Second Department
 

Plaintiff allegedly was injured while employed by Anzek when he tripped and fell over a pallet at or near the service entrance on the second floor. Prior to jury selection, on the first day of trial, plaintiff’s counsel stated on the record that the parties agreed “to fully and completely settle the matter” for the sum of $325,000. Defense counsel indicated on the record that the stipulation of settlement was agreed upon and stated the sum that each defendant would contribute toward the total settlement amount. Plaintiff's counsel and plaintiff acknowledged on the record the possibility of establishing a Medicare set-aside, and plaintiff confirmed they would “take care of the issues with regard to Medicare should they exist.” Plaintiff’s counsel also acknowledged on the record the existence of a workers' compensation lien. Subsequently, plaintiff’s counsel sent a letter to the trial court and all counsel, stating that the stipulation of settlement was “null and void” on the ground that plaintiff had “not received an agreed upon workman's compensation written consent.” The trial court denied Anzek’s motion pursuant to CPLR § 2104 to enforce a stipulation of settlement, finding “no binding settlement was ever reached.”

Labor Law § 241(6) (MAS)
“An open-court stipulation is an independent contract between the parties … and will be enforced according to its terms unless there is proof or fraud, duress, overreaching, or unconscionability. Even a stipulation which was improvident will not be set aside unless it is manifestly unfair or unconscionable.” In this case, the Second Department held that plaintiff failed to show that the stipulation of settlement was the product of fraud, collusion, mistake, or accident. That plaintiff is unsatisfied with the amount they will receive after payment of the workers’ comp. lien and establishment of a Medicare set-aside does not constitute a sufficient ground to invalidate the settlement. According, the Court reversed and granted Anzek’s motion to enforce the settlement stipulation.



Turgeon v. Vassar Coll.
May 15, 2019
Appellate Division, Second Department

 
Plaintiff, an employee of nonparty Debrino, was working as a mason tender when he allegedly was injured after tiles or stones fell from the side of a building owned by Vassar. Vassar hired Kirchhoff, as general contractor for the work to be performed. Pursuant to a subcontract, Kirchhoff retained Debrino to perform masonry restoration on the property. On the day of the incident, plaintiff was assisting a mason, who was also employed by Debrino, to replace 55 to 60-pound stones on the western facade of the third floor of the building. To reach the third-floor level, plaintiff and the mason were in a lift. After the mason removed one stone from the third-floor level, three stones above the location of the removed stone started to fall off the building. According to plaintiff, he reached out with his left hand to push them back in. the three stones when they “instantly dropped right down” and severed his right thumb. The trial court granted defendants’ summary judgment motion seeking dismissal of the common-law negligence and Labor Law §§ 241(6) and 200 claims.

Labor Law § 241(6) (MAS)
The Second Department affirmed dismissal of this claim, which was based on alleged violations of Industrial Code regulations 1.18, 1.33(a), 3.2, and 3.3(c). Defendants established that 1.18, which relates to the requirements of sidewalk sheds, is inapplicable to the facts of this case, that 1.33(a) also does not apply to workers on a construction site, and that since plaintiff was not engaged in demolition work, neither 3.2 nor 3.3(c) are applicable.

Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed, holding defendants met their burden of proof by demonstrating the accident did not arise from a dangerous or defective premises condition but from the method and manner of the work. The testimony established the tiles/stone fell after the mason (plaintiff’s co-employee) removed a tile/stone beneath them, and established that plaintiff received instructions only from his employer and did not receive instructions from anyone else.
 
 

Clark v FC Yonkers Assoc., LLC
May 22, 2019
Appellate Division, Second Department

 
Plaintiff was a construction supervisor employed by IBEX, the general contractor hired for the “fit[ting]-out” of a retail space in a shopping center under construction. He allegedly was injured when he suffered a herniation in his neck as he attempted to throw a hose onto an area located 15 to 20 feet above him to provide a water supply required for the fireproofing of the retail space. The trial court granted defendants’ summary judgment motion and dismissed the Labor Law §§ 240(1) and 200 claims.
 
Labor Law § 240(1) (DRA)
The Second Department affirmed the trial court’s finding that at the time plaintiff was injured, he was standing on the ground level and moving a 100-pound hose. Although the accident tangentially involved elevation, it was not caused by any elevation-related risk contemplated by the statute.
 
PRACTICE POINT: Plaintiff, who was injured throwing a hose to a higher level brought a § 240(1) claim apparently with a straight face. Score one to the Second Department, though they are behind the First this month 2-1.

Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department held defendants demonstrated the accident at issue was the result of the means and methods of plaintiff's work, that plaintiff's work was directed and controlled by his employer, and defendants had no authority to exercise control over his work. Therefore, they met their burden of proof on summary judgment, and plaintiff failed to raise a triable issue of fact.
 
 

Pelham v Moracco, LLC
May 15, 2019
Appellate Division, Third Department

 
Defendant, a real estate holding company whose sole member is Racco, owns three properties. Defendant, through Racco, entered into a contract with plaintiff to build a log cabin on the wooded lot, which had been recently cleared. Defendant then listed the parcel for sale containing the existing log cabin for sale. While building the new log cabin, plaintiff allegedly fell from a height at least 10 feet. The trial court granted defendant’s summary judgment dismissing the complaint alleging violations of Labor Law § 240(1) and 241(6).

Labor Law § 240(1) (DRA)
The Third Department, finding that the homeowners’ exemption for defendant’s single-family dwelling applied and rejected plaintiff’s contention that defendant will use the dwelling for commercial purposes since defendant is an LLC and real estate holding company.
 
PRACTICE POINT: It is the intention of the owner for the home that controls and thus defendant plans to use the home as a vacation home controls, regardless of the manner in which they may own the home. Looks like the Second Department has tied it up 2-2.
 
 

Acox v Jeff Petoroski & Sons, Inc.
May 3, 2019
Appellate Division, Fourth Department

 
Decedent allegedly fell through a hole in the first floor of a residence owned by defendant Spink. At the time of the accident, the residence was under construction and P & S was the general contractor on the project. Decedent went to the residence to measure windows as a precursor to the installation of window treatments, and he was alone inside at the time of the accident. The hole, into which a circular staircase was to be constructed, had allegedly been barricaded by scaffolds to prevent access. At the time decedent’s body was found, the scaffold closest to the windows had been moved away from the wall, permitting access to two windows. The trial court denied P & S’ motion for summary judgment seeking dismissal of the complaint and all cross claims against it and granted in part plaintiff’s cross-motion.
 
Labor Law § 240(1) (DRA)
The Fourth Department agreed with P & S that plaintiff was not entitled to summary judgment on the Labor Law § 240 (1) claim and that P & S was entitled to summary judgment dismissing that claim because the work of measuring windows for the future installation of window treatments is not a protected activity under the statute. The work did not involve a “significant physical change to the configuration or composition of the building or structure” (Joblon v Solow, 91 NY2d 457, 465 [1998]); was not “performed in the context of the larger construction project” (Amendola v Rheedlen 125th St., LLC, 105 AD3d 426, 427 [1st Dept 2013]), and was not “necessary and incidental to the construction of the home” (Nowak v Kiefer, 256 AD2d 1129, 1130 [4th Dept 1998].
 
PRACTICE POINT: Two important issues to be addressed here. First, plaintiff was just measuring and thus not doing any actual work while in the home, and, therefore, would not qualify for a labor law claim. Second, putting up drapes is a task that has been addressed by the courts before and hanging drapes in general, even had he gone beyond mere measuring, would not have qualified as an “alteration.”

Labor Law § 241(6) (MAS)
The Court likewise held that P & S is also entitled to dismissal of this claim for the same reasons as above.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Fourth Department held the trial court properly denied summary judgment to both plaintiff and P & S on the negligence and wrongful death causes of action.  As to plaintiff, it found triable issues of fact whether decedent’s own negligence was a proximate cause or the sole proximate cause of the accident. Moreover, P & S failed to establish that it did not exercise any supervisory control over the general condition of the premises. Nor did it establish that it neither created nor had actual or constructive notice of the allegedly dangerous condition on the premises.
 
 

Forman v Carrier Corp.
May 3, 2019
Appellate Division, Fourth Department

 
Plaintiff fell on the roof of defendant’s building while performing asbestos remediation. The trial court denied defendant's summary judgment motion seeking dismissal of the Labor Law § 200 and common-law negligence causes of action.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Fourth Department affirmed denial of defendant’s summary judgment motion as to Labor Law § 200 and common-law negligence. Because plaintiff alleged that his accident was caused by a defective condition on the premises, defendant had the initial burden of establishing that it did not create the defective condition or have actual or constructive notice of it in order to demonstrate its entitlement to summary judgment on those causes of action. The Court held defendant had not met that burden.

PRACTICE POINT:  Always remember, when the claim is based on a defect in the property, the issue is not control over the means and methods of the work, but creation of, or notice (actual or constructive) of the defective condition.

 

 

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

Regulation § 1.16(f), requiring inspection of safety belts, harnesses, tail lines, and lifelines by designated person prior to each use and forbids use of such equipment showing excessive wear, damage or deterioration that could affect the equipment’s strength, is sufficiently specific to sustain a Labor Law § 241(6) cause of action.

 

Bisram v Long Island Jewish Hosp., 116 AD3d 475, 983 NYS2d 518 (1st Dept 2014).

 

Bisram held the reg. was applicable where the provided devices failed to protect π from injury.
 

 

 

 

 

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

Associate Editor
Eric S. Bernhardt

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Brian F. Mark
 
Associate Editor
Ashmita Roka 


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David R. Adams, Team Leader
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Dan D. Kohane
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Marc A. Schulz
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Michael F. Perley
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V. Christopher Potenza

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Eric S. Bernhardt
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Steven E. Peiper
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Jennifer A. Ehman
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Eric D. Andrew
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Brian F. Mark
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Ashmita Roka
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Jerry Marti
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