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Labor Law Pointers - Volume VIII, No. 8

 
 

Labor Law Pointers

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

Volume VIII, No. 8
Wednesday, July 3, 2019

 

From the Editor:


Do you have a situation? We love situations.

Happy Fourth of July to all our readers and welcome to our new subscribers.  I start this month’s edition with a cautionary tale.  On Sunday of last week as I sat in my cottage serving a brisket and smoked turkey breast to my son and his climbing friends, my phone rang.  It was my wife calling from our house in Buffalo to tell me that there was water through my son's ceiling.  My keen mind immediately deduced that it was the air conditioning condenser unit that had been installed over the prior few weeks.  I was informed that everyone had already figured that out and that I had better get my butt back from the beach because the ceiling was going to come down at any second.  The next call, before I had even made it to the car, confirmed that the ceiling had in fact come down.  I got home to a ceiling on the floor and desk, standing water on the rug, soaked insulation everywhere, and a very unhappy family (except for my oldest and his friends who were blissfully eating brisket and smoked turkey breast and looking at the lake).
 
The air conditioning company arrived and deduced exactly what I had earlier deduced, and was met with the same blank stare clearly informing them that everyone knew where it was coming from, but for the love of God make it stop as the water reached the bed and the pile of towels and bedding placed under the drip.
 
Over the next few days, there were countless people tearing up rugs, removing ruined furniture and, more importantly for our story, climbing up into the crawlspace through a hatch in the closet and climbing through the rafters to completely rebuild the platform the unit sat on--as the one they first built had tipped allowing the water to leak out the side of the unit, covering the drywall ceiling to a depth of several inches destroying the room.
 
While my house remains torn up with clothes, furniture, electronics (you have no idea how much electronic equipment a 21-year-old manages to acquire and even build for himself) and assorted sports equipment piled in every open space and flat surface, the room is finally dry and we can start to rebuild.  This is where the story gets weird.
 
My wife, a very talented attorney fully aware of my practice focused in NY Labor Law suddenly says, “forgot to tell you but that is our ladder they have been using.”  Anyone who has attended any of my seminars on the Labor Law knows that I always encourage all attendees to NEVER loan tools, particularly ladders or scaffolds, to any worker.  My solution can’t be to throw all my ladders away; I need them.  I am planning on painting my name on them in HUGE letters with the instruction that they are for my personal use only and not to be borrowed for any reason.
 
As I write this I now go back over my action while they were planning how to rebuild the platform that failed and analyze if my actions were in any way supervision, direction of control over the means and methods of the work.  I hold firm that all I did was discuss design issues and not the methods to be used to build the platform or secure any of the elements so that my house did not flood again.  Below is a picture of my ladder with an unsupervised or directed worker on it.  Notice that the ladder has the side arms fully locked and open.
 
 

 

Below, in our second photo, you can see that the supervision has arrived.
 

 
I would be remiss if I did not mention that in order to get into the crawl space they had their ladder, well, my ladder, leaned against the wall and was not open and locked as they should have.
 
Next we have the view from Dan Kohane’s screen porch as they rebuild the house next door to his cottage in Canada.  Notice the ladder not secured in any way and the worker with no fall protection working at the very edge of the roof.  When he falls, will he have a valid Labor Law claim?  See the answer below.


 
The answer is no, Dan’s cottage is in Canada, and it is only in New York State where this Draconian law exists.  The rest of the world encourages and requires workers to take responsibility for their own actions.  Thus Dan was sitting on his porch enjoying the view of the lake with only a periodic and relaxed peek over to see if the worker had fallen yet.
 
Here we have a worker near the edge of the roof apparently painting.  He is tied off, however he appears to be tied to his co-worker who is very carefully bracing himself against the possibility that his co-worker goes over the edge just a bit too far.  When they both end up on the ground, do they have a Labor Law case?
 

 
Assuming that the workers were so employed and that there was no other safety equipment made available to them, they will have a valid Labor Law claim as a person is not and cannot be, under normal circumstances, a safety device. 
 
We have this month increased our downstate Labor Law team with the addition of Michael Dischley to our Melville office.  Michael has experience in the defense of Labor Law actions, as well as other general litigation matters and is a welcome addition to our downstate office.  We welcome Michael to the team and the firm. 
 
In other news pertinent to practicing in NY Labor Law, there have been some changes to the law that impact our practice.  First, a change to GOL §15-108 eliminates the protection to remaining defendants after one or mare have settled.  Previously, when one defendant would not settle, he was provided an offset under GOL §15-108 of either the amount paid by the settling defendant or defendants or the percent of liability assigned to them by the jury, whichever was higher.  The law has changed, and the defendant must elect, prior to trial, which offset he is claiming.  This can, of course, allow the plaintiff to collect more than the full amount of damages the jury deemed the plaintiff sustained and cause the defendant to pay more than the full value of the damages without so much as the knowledge of how the trial is going to make an informed decision.  This takes effect January 1, 2020.
 
In another change, CPLR §1405 has been changed to allow the plaintiff to collect directly from the third-party defendant even if the primary defendant has not been able to pay the entire judgment.  They are allowing what has been referred to as “bucket brigade” collection from a third-party defendant.  The only good news here, other than to plaintiffs who did not sue the correct party in the first instance, is that it does not apply to any third party defendant who would have been protected by §11 of the Workers' Comp Law, in other words, the employer.
 
Chris Potenza has a blog for anyone who wants more information on these changes.
 
Here is to hoping that everyone has a safe and fun Fourth.  We will be back next month with more fun and exciting Labor Law and risk transfer cases for your reading enjoyment.

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]m  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.

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.

 

 

 

Contreras v 3335 Decatur Ave. Corp.
June 11, 2019
Appellate Division, First Department 

 
Plaintiff testified that he received a hand-held grinder from which the safety guard had been removed by his employer to install an over-sized disc blade. He was then instructed to use this grinder to cut concrete, over his objections, and allegedly was injured when the grinder got stuck, kicked back, knocked him to the ground, and cut into his foot. The trial court granted defendant's summary judgment motion seeking dismissal of plaintiff's Labor Law § 241(6) claim.
 
Labor Law § 241(6) (MAS)
The First Department unanimously reversed, finding plaintiff’s testimony raises a triable issue of fact as to whether defendant breached its nondelegable duty “to provide reasonable and adequate protection and safety” to plaintiff.
 
 

Vucetic v NYU Langone Med. Ctr.
June 18, 2019
Appellate Division, First Department

 
Plaintiff allegedly was injured when the A-frame ladder he was using to perform insulation work collapsed beneath him, causing him to fall to the ground. The trial court granted plaintiffs’ summary judgment motion on his Labor Law § 240(1) claim.
 
Labor Law § 240(1) (DRA)
The First Department unanimously affirmed the trial court’s finding that the record showed the “safety devices provided to plaintiff did not properly protect him from an elevation-related hazard” (Torres v Monroe College, 12 AD3d 261, 262 [1st Dept 2004]). As plaintiff was following his foreman’s instructions, the Court held that he was not the sole proximate cause of the accident.
 
PRACTICE POINT:  Falling from a ladder which collapses under plaintiff is exactly the type of case and accident the Labor Law was designed to protect against. The fact that plaintiff was doing what he was told to do by his employer eliminates any option for a sole proximate cause defense. 
 
 

Reyes v Bruckner Plaza Shopping Ctr. LLC
June 20, 2019
Appellate Division, First Department 

 
Plaintiff fell off the roof of a building while installing “gravel stops.” The trial court denied his summary judgment motion on his Labor Law § 240(1) claim. Bruckner owned the property, and Ashkenazy was the managing agent. Western leased the property from Bruckner and retained Metro as the general contractor to renovate it for operation as a supermarket. Metro subcontracted plaintiff's employer, Mar-Sal, to replace the roof.

Labor Law § 240(1) (DRA)
The First Department unanimously modified the order to grant plaintiff's motion as against Bruckner and Metro and, upon a search of the record, granted Ashkenazy’s cross-motion to dismiss the complaint as against it. The Court held plaintiff established a prima facie violation of § 240(1) through his testimony and the affidavit and testimony of his co-worker establishing no safety devices were provided for their use at the job site. In response, the Court held defendants failed to raise an issue of fact as to whether plaintiff, by recalcitrantly refusing to use safety equipment that had been provided to him, was the sole cause of the accident.
 
The Court further held an issue of fact exists as to whether Western, the lessee, was an “owner” or “agent” of the owner, for purposes of the Labor Law because evidence showed Western was responsible for renovating the premises, including the roof, and retained Metro as the general contractor for the renovation work, which raises an issue of fact as to whether Western had the authority to supervise and control the work site. However, there was no proof Ashkenazy was an “agent” of the owner because there was no evidence that it had authority to supervise or control the work site, and thus the Court granted its cross-motion to dismiss the complaint against it.
 
PRACTICE POINT:  First of all, a gravel stop is a small lip on the edge of a flat roof which prevents the tar and gravel from falling off the roof. Where, as here, no safety devices are provided, there is little that can be done to prevent the award of summary judgment to plaintiff. The real issue here is whether Ashkenazy was an agent of the owner as defined in the Labor Law.  Where the purported agent merely had responsibility for the “upkeep of the shopping center, making sure the tenants get billed, and rents are collected” and that the work was contracted directly by Western, that is insufficient to be deemed an agent of the owner for this purpose.
 
 

Soller v Dahan
June 5, 2019
Appellate Division, Second Department 

 
Plaintiff was an automobile mechanic employed at an automobile repair shop. His supervisor was Dahan, who sometimes directed the shop’s employees to do minor work at his newly constructed building. Plaintiff allegedly accompanied Dahan to the building, where they met Rapaport, who was a partner of SNBD, which served as the construction manager/general contractor during the construction of the building.
 
Dahan and Rapaport allegedly directed plaintiff to move an overhead light from one place in the ceiling to another and told him to use an electrical saw to cut the sheetrock in the ceiling. While plaintiff was in the process of performing this task, the electrical saw, which allegedly was an improper and dangerous piece of equipment for the task at hand, struck something and “kicked back,” injuring plaintiff. The trial court granted Rapaport and SNBD’s motions pursuant to CPLR 3211(a) to dismiss the complaint against them.

Labor Law § 240(1) (DRA)
The Second Department affirmed dismissal of the Labor Law §§ 240(1) and 241(6) claims because plaintiff did not allege that his injuries were the result of an elevation-related risk, or of the violation of any provision of the Industrial Code.
 
PRACTICE POINT:  Just because he was working at a height does not make this a Labor Law case.  The injury was not caused by gravity but rather by the motion of the saw kicking back.  Had the saw kicking back caused the plaintiff to fall, then it would have qualified.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department reversed the trial court’s decision granting defendants’ motion to dismiss the Labor Law § 200 and common-law negligence claims. The Court held, plaintiff’s affidavit, stating: on the day of the accident, Rapaport, whom he knew as the “contractor,” directed the plaintiff to move an overhead light from one place in the ceiling to another and told him to use an electrical saw to cut the sheetrock in the ceiling (in other words, he directed the means and methods of the work), supplemented the complaint to state cognizable causes of action under § 200 and common-law negligence theories. Further, the Court found the moving defendants’ documentary evidence did not utterly refute plaintiff’s allegations.
 
 

Chavez-Lezama v Kun Gao
June 12, 2019
Appellate Division, Second Department 

 
Plaintiff was performing construction work at a house owned by Gao. The construction work involved converting the existing one-family house into a two-family house. Plaintiff alleges that he was descending a ladder when he fell and sustained injuries. The trial court denied that branch of Gao’s motion for summary judgment dismissing the complaint against it.

Labor Law § 240(1) (DRA)
The Second Department reversed, finding Gao proffered evidence establishing he was the owner of a one- or two-family dwelling who did not direct or control the work being. In opposition, the Court held plaintiff failed to raise a triable issue of fact as the affidavit submitted failed to specify Gao as the individual who supervised or controlled the work.
 
PRACTICE POINT:  This is the quintessential homeowner exemption. The owner of a one- or two-family house who does not supervise, direct of control the work is not and cannot be a valid labor law defendant. As a side note, do as I say and not, apparently, as I do. Don’t loan them a ladder!

Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed dismissal of plaintiff’s Labor Law § 200 and common-law negligence claims against Gao, holding Gao met his burden of establishing he did not direct or control the work being performed. (Of note, plaintiff’s claim against Gao appears to have been limited to the means, manner, and/or methods of the work and not for a dangerous condition on the premises).
 
 

Daeira v Genting N.Y., LLC
June 12, 2019
Appellate Division, Second Department 


Plaintiff allegedly was injured when he fell through glass flooring on a construction site. The trial court (1) denied DBA’s cross-motion for summary judgment dismissing the common-law negligence claim against it, (2) denied its cross-motion to dismiss the cross-claim of Genting for contribution against it, (3) granted the cross-motions of Genting and New York Raceway’s for summary judgment dismissing the cross-claim of third-party plaintiff, DBA, for contribution against New York Raceway, and (4) denied its cross-motion for summary judgment on its third-party claim for contractual indemnification against third-party defendant, A.F.I.

The Court also (1) denied plaintiff’s summary judgment motion on the Labor Law §§ 240(1) and 241(6) claims, (2) granted the cross-motion of Genting and New York Raceway for summary judgment dismissing the Labor Law §§ 240(1), 241(6), and 200, claims against them, (3) granted the cross-motion of Genting and New York Raceway for summary judgment dismissing the common-law negligence claims asserted against New York Raceway, and (4) granted the cross-motion of DBA seeking summary judgment dismissing the Labor Law claims against it.

Labor Law § 240(1) (DRA) 
The Second Department affirmed denial of plaintiff’s summary judgment motion for liability on the Labor Law §§ 240(1) and 241(6) claims, granting those branches of DBA’s cross-motion for summary judgment dismissing the Labor Law claims against it, and granting Genting and NYRA's cross-motion to also dismiss all claims against them, finding plaintiff failed to demonstrate that he was subject to the protections of the statute and DBA, Genting, and NYRA demonstrated plaintiff was not subject to the statutory protections as he was “not a person employed’ to carry out the repairs as that term is used in section 200(1), section 240(1) and section 241(6) of the Labor Law.”
 
PRACTICE POINT:  Remember the four criteria of a labor law claim: appropriate plaintiff, appropriate defendant, appropriate project and elevation related/ gravity related risk.  Here the first criteria was not met since plaintiff was not a person “so employed” and thus not a valid plaintiff.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department held the trial court properly dismissed plaintiffs’ Labor Law § 200 cause of action because plaintiff was “not a person employed” to carry out the repairs on the construction site as that term is defined in the Labor Law. Therefore, the plaintiffs could only recover if they could establish a traditional negligence cause of action. 
 
As to plaintiffs’ common-law negligence claims, however, the Court determined that defendants’ cross-motions for summary judgment as to plaintiffs’ common-law negligence claims should have been denied. As to defendant DBA, the Court held DBA’s evidence did not establish it lacked the authority to exercise supervision and control over the work, it lacked the authority to control the work site, it lacked actual or constructive notice of the alleged dangerous condition, its negligence, if any, was not a proximate cause of the accident, or plaintiff’s actions were the sole proximate cause of his accident as a matter of law therefore, its cross-motion properly was denied.
 
The Court further held the trial court erred in granting summary judgment to defendant NYRA on the common-law negligence claim, finding NYRA submitted contradictory evidence regarding its role in the construction project and regarding how often, if at all, NYRA employees were on the construction site to inspect or direct the construction work. Accordingly, it failed to meet its burden of demonstrating no triable issues of fact regarding its authority to control the work or the work site and whether it had actual or constructive notice of the alleged dangerous condition.
 
Indemnity Issues in Labor Law (SEP)
The trial court had granted AFI’s cross-motion against DBA dismissing the third-party cause of action for contractual indemnification.  On appeal, AFI argued that DBA’s third-party claims against it for common-law indemnification and contribution were barred by Workers’ Compensation Law § 11, and were not properly before the court.

 

Orellana v 7 W. 34th St., LLC
June 12, 2019
Appellate Division, Second Department 

 
Plaintiff allegedly was injured while performing demolition work at a commercial building for his employer, nonparty Calvin. The building was owned by 7 West, which hired W5 Group to demolish several floors of the building. W5 Group hired Calvin to provide the laborers to perform the demolition work. At the time of the accident, plaintiff was standing on an eight-foot-high A-frame ladder and using an electric saw to cut brackets which held an air duct to the ceiling. He fell from the ladder and sustained injuries. He recalled cutting the last bracket holding the duct to the ceiling and feeling the duct falling but did not remember falling from the ladder. The trial court denied plaintiff's and defendants’ summary judgment motions on the Labor Law § 240(1) claim.

Labor Law § 240(1) (DRA)
The Second Department affirmed the trial court’s finding that plaintiff failed to demonstrate, prima facie, that the ladder was an inadequate safety device for the work in which he was engaged at the time of his alleged accident. The mere fact that plaintiff fell from a ladder does not, in and of itself, establish that proper protection was not provided. The Court also rejected the opinions of plaintiff's expert as he failed to establish that the ladder that was provided was an inadequate safety device. 
 
Similarly, defendants' expert's affidavit, in which the expert opined the subject ladder “was so constructed, placed and operated as to give proper protection,” was found to be conclusory and unsupported by evidence in the record. The Court held defendants also failed to demonstrate, prima facie, that plaintiff’s conduct was the sole proximate cause of his fall because he allegedly failed to use scaffolding that was readily available at the job site. Additionally, defendants failed to establish, prima facie, that plaintiff's conduct was the sole proximate cause of his fall because he allegedly improperly positioned the ladder, did not ask his coworker to cut the bracket for him, and did not demand that his foreman provide scaffolding.
 
PRACTICE POINT:  Here, we have a basic issue to deal with that is essential in all types of law suits but very important to us in the Labor Law practice: the shifting burden of proof. Remember, as the moving party, you bear the burden of proving your case. In this case, neither plaintiff nor defendant could meet their burden as their expert affidavits were not sufficiently complete, or were, in the case of defendant, conclusory. It is critical to have an expert opinion that addresses the essential question, did the safety device provide adequate protection to plaintiff, and does so without simply stating that it either did or did not. It is even more critical to always keep your mind focused on what you need to prove and then seek the admissible evidence to support your position. I tell attorneys to start at the end, first explain to me what it is you need to provide to the court to win your motion, and then see if that position is supportable.
 
 

Wass v County of Nassau
June 12, 2019
Appellate Division, Second Department 

 
Plaintiff allegedly was injured when he fell from atop an eight-foot, wooden, A-frame ladder while working on a lighting fixture at the Nassau Coliseum. The trial court granted defendants’ summary judgment motions to dismiss the complaint and denied plaintiffs’ cross-motion for summary judgment on the Labor Law § 240(1) claim.

Labor Law § 240(1) (DRA)
The Second Department reversed and found triable issues of fact on whether plaintiff’s activity constituted repairs or routine maintenance as plaintiff’s submissions contained discrepancies to be resolved by the trier of fact. The County defendants submitted plaintiff’s testimony that demonstrated some of the lighting poles on which he worked may have only required the tightening or replacement of a lightbulb, and that more labor-intensive work was performed on other lighting poles in order to make them function, which the Court held fell within the scope of “repairing” a light fixture and within the scope of Labor Law § 240(1).
 
PRACTICE POINT:  To repair or to maintain, that is the question. Whether ‘tis nobler to repair, and thus suffer the slings and arrows of the Labor Law, or to maintain and thus, allow the Labor Law claim to die, to sleep. If the work is “replacing components that require replacement in the course of normal wear and tear” then it is maintenance and not Labor Law, if the work is beyond that, then it is repair and afforded the protection of the Labor Law. If a little of each, as in this case, then summary judgment cannot be awarded to defendant. Note that plaintiff here did not move for summary judgment, but it certainly appears that such a motion would have been granted.
 
Labor Law § 241(6) (MAS)
 “[T]he courts have generally held that the scope of Labor Law § 241(6) is governed by 12 NYCRR 23-1.4(b)(13), which defines construction work as “[a]ll work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures” (DeJesus v Metro-North Commuter R.R., 159 AD3d 951, 953 [2d Dept 2018]).
 
Here, the Second Department held that the County defendants failed to show that the statute was inapplicable to plaintiff’s activities since he arguably was engaged in the repair of the subject lighting fixtures. Thus, the Court reversed the trial court and denied that branch of the County defendants’ motion seeking dismissal of plaintiff’s Labor Law § 241(6) claim.
 

Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department reversed the trial court’s decision granting summary judgment on plaintiff’s Labor Law § 200 and common-law negligence claims, simply stating “we disagree with the Supreme Court’s determination.” Unfortunately, the Court offers no analysis or explanation of the basis for that disagreement.
 
 

Yiming Zhou v 828 Hamilton, Inc.
June 12, 2019
Appellate Division, Second Department 

 
While performing work at a building owned by 828 Hamilton, plaintiff, who ordinarily worked as a salesman at a kitchen plumbing supply center owned and operated by Bright Way was injured. On the date in question, however, he was instructed to run thermostat cable wiring through a wall on the second floor of the building. While attempting to perform this work, plaintiff stepped on a thin, unsecured piece of styrofoam covering a rectangular duct opening in the floor, and the styrofoam broke underneath him, causing him to fall through the hole 15 feet to the building's first floor. The trial court granted plaintiff's summary judgment motion on his Labor Law § 240(1) claim.

Labor Law § 240(1) (DRA)
The Second Department affirmed plaintiff’s motion against 828 Hamilton as plaintiff’s evidence showed he fell through an opening in the floor where an inadequate safety device was in place to protect him from opening, and that this violation was a proximate cause of his alleged injuries.
 
However, the Court reversed as to Bright Way since plaintiff’s evidence failed to establish that it was an “agent” of the property owner or one of its contractors at the site. The evidence did not establish that Bright Way had been delegated the duty to conform to the requirements of the Labor Law, that Bright Way had the right to insist that proper safety practices were followed at the construction site, that Bright Way had "broad responsibility" to coordinate and supervise all the work being performed on the job site, or that Bright Way had requested or been granted authority by the owner or contractor to supervise and control the work in the area where the accident occurred.

PRACTICE POINT:  Plaintiff clearly was entitled to summary judgment against the owner, as the safety device in question, a piece of Styrofoam covering a hole big enough for a man to fall through, is not sufficient. The real issue here is if a defendant is an agent for the purposes of the Labor Law. The test remains whether the “agent” has the authority to supervise, direct and control the injury producing work. That means that the “agent” needs to have been delegated the “duty to conform to the requirements of the Labor Law”, “had the right to insist that proper safety practices were followed” and had “broad responsibility” to coordinate and supervise “all the work being performed on the job site.” Therefore, I recommend always starting every case by very carefully reading all of the contracts.

 

Mendez v Vardaris Tech, Inc.
June 19, 2019
Appellate Division, Second Department

 
Defendant was the general contractor for a construction project at an elementary school, who retained nonparty Asar to perform asbestos removal work. Plaintiff, a foreman employed by Asar, was supervising the removal of asbestos-containing material from a classroom ceiling, portions of which were removed using a jackhammer. There were several “long” overhead light fixtures in the classroom which were attached to the ceiling by thin steel beams. After plaintiff entered the classroom following a break in the work, he allegedly was injured when a light fixture fell from the ceiling and struck him on the head. The trial court granted defendant’s summary judgment motion seeking dismissal of the Labor Law §§ 241(6), 200 and common-law negligence claims.
 
Labor Law § 241(6) (MAS)
Plaintiff relied on violations of Industrial Code (12 NYCRR) 23-3.3(b)(3) and (c), which provide that “[w]alls, chimneys and other parts of any building or other structures shall not be left unguarded in such condition that such parts may fall, collapse or be weakened by wind pressure or vibration.” Subsection 3.3(b)(c) governs inspections and requires “continuing inspections against hazards which are created by the progress of the demolition work itself, rather than inspections of how demolition would be performed.”
 
The Second Department found both regulations sufficiently specific and that defendant failed to show that they were inapplicable to the facts, or were applicable but not violated, or that the alleged violations were not a proximate cause of the accident, because defendant failed to establish that the hazard which allegedly caused the accident arose from the actual performance of the work and not structural instability caused by the progress of the demolition.

Labor Law § 200 and Common-Law Negligence (ESB)
In this case, the parties agreed that plaintiff’s Labor Law § 200 and common-law negligence claims were based only on an allegedly dangerous condition on the premises (as opposed to the manner and method of the work). On summary judgment, defendant demonstrated it did not create the allegedly dangerous condition involving the light fixture or have actual or constructive notice of such condition. In response, plaintiff failed to raise a triable issue of fact. Accordingly, the Court affirmed dismissal of plaintiff’s Labor Law § 200 and common-law negligence claims.

 

Robles v Taconic Mgt. Co., LLC
June 19, 2019
Appellate Division, Second Department 

 
Plaintiff, a laborer transporting demolished materials onto a freight elevator, sustained injuries when he was struck on the head by a closing vertical elevator door. The trial court granted defendants Taconic Management Company, Taconic Management Corp., and 111 Chelsea summary judgment dismissing the Labor Law § 241(6) claims, granted them summary judgment dismissing the violations of Labor Law § 200 and common-law negligence claims, but denied their respective motions for dismissal of all cross-claims and third-party claims for indemnification.
 
Labor Law § 241(6) (MAS)
The Second Department held that Taconic and Chelsea demonstrated that the Industrial Code regulation plaintiff alleges was violated, 7.1, was not sufficiently specific to support his Labor Law § 241(6) claim and thus this claim was properly dismissed by the trial court.

Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department modified the trial court’s decision granting certain defendants summary judgment on plaintiff’s Labor Law § 200 and common-law negligence claims. The Court noted that cases involving Labor Law § 200 fall into two broad categories: those where workers are injured because of dangerous or defective premises conditions at a worksite, and those involving the manner in which the work is performed. Here, plaintiff alleged both categories, so the moving defendants were required to address both.
 
As to the owner (“Chelsea”) and management company (“Taconic”), the representative of those entities who appeared at deposition testified he told the contractors what pipes to take down, what electrical conduits to remove, and observed the work to make sure it was performed in a safe manner. Taconic also would give direction to the elevator operators.  Accordingly, Chelsea and Taconic failed to demonstrate they did not supervise or control the plaintiff’s work and summary judgment should not have been granted in their favor.
 
With regard to the elevator operator (“Collins”), it met its burden of proof under Espinal to demonstrate: it did not launch a force or instrument of harm by failing to operate the elevator or prevent others from doing so; plaintiff could not rely on their continued performance of its contractual obligation to operate the elevator when he knew someone else was doing it; and Collins did not entirely displace Taconic of Chelsea’s duty to maintain the premises as Taconic retained the ability to give orders to the elevator operators, schedule the use of the operators and actually operate the elevators. Therefore, Collins did not owe plaintiff a duty of care and plaintiff failed to raise a triable issue of fact. Therefore, summary judgment properly was granted in favor of Collins as to plaintiff’s Labor Law § 200 and common-law negligence claims.
 
As to the company that employed plaintiff’s foreman (“Waldorf”), the Court held Waldorf failed to demonstrate it was the alter-ego of plaintiff’s employer and thus entitled to the exclusivity defense under Workers’ Compensation Law §§ 11 and 29(6). Although Waldorf offered evidence that the two companies were owned by the same holding company and shared facilities, It also demonstrated the entities were formed for different purposes and had different workforces that performed different functions. Therefore, because there was evidence both that plaintiff's foreman was a Waldorf employee and that the same foreman was the person who caused the freight elevator door to close on plaintiff's head, Waldorf was not entitled to summary judgment as to Labor Law § 200 and common-law negligence.

Indemnity Issues in Labor Law (SEP)
Taconic and Chelsea moved for summary judgment on common law and contractual indemnification.  However, they failed to eliminate triable issues of fact regarding their own negligence.  This precluded granting of summary judgment in their favor on the issue of indemnification.

 

Swan v Pier 1 Imports (U.S), Inc.
June 19, 2019
Appellate Division, Second Department 


TCM, and its subdivision, Tricon worked as subcontractors on a renovation project at a store operated by Pier 1. Plaintiff commenced an action against, among others, Pier 1 and Advanced, another subcontractor on the project, for personal injuries sustained while working on the project. Pier 1 commenced third-party actions against Tricon and TCM and another party. In both of those third-party actions, Pier 1 asserted claims for contractual indemnification.

The trial court awarded summary judgment to Pier 1 on its contractual indemnity claim against Tricon and directed Tricon to pay Pier 1's reasonable litigation costs, awarded summary judgment to plaintiff on the Labor Law § 240(1) claim asserted against Pier 1, awarded summary judgment to Tricon dismissing the complaint against it, and following a trial, granted Pier 1’s motion for a directed verdict on its contractual indemnity claim against TCM, and granted plaintiff’s motion for a directed verdict finding no comparative negligence. The same day, a jury found that Advanced failed to use reasonable care in providing plaintiff with a safe workplace, and that its negligence was a substantial factor in the happening of the accident.

The trial court thereafter granted TCM and Tricon’ s motion for common-law indemnification against Advanced. TCM and Tricon moved to recover from Advanced their attorneys’ fees, costs, and disbursements incurred in the litigation, including reimbursement of the legal fees expended in providing a defense to Pier 1 in the main action, fees incurred in defending the third-party claims against them by Pier 1, and the fees incurred in prosecuting their common-law indemnity claim against Advanced. The trial court denied TCM and Tricon subsequent motion for attorneys’ fees.

Indemnity Issues in Labor Law (SEP)
A party who is entitled to recover on a theory of common-law indemnification may seek reimbursement of fees, costs, and disbursements incurred in connection with defending the suit brought by the injured party, but it cannot recover expenses incurred in the prosecution of its indemnity cause of action.  Thus, TCM and Tricon’s motion seeking to recover expenses incurred in prosecuting their application for common-law indemnification against Advanced was denied.  TCM and Tricon were sued by Pier 1 in separate third-party complaints.  The Second Department did not permit them to recover the legal expenses they incurred as third-party defendants from Advanced in defending against Pier 1’s causes of action against them for contractual indemnification.

However, the court did permit TCM and Tricon to recover the reasonable costs they incurred in defending Pier 1 in the main action.  Pier 1 was a defendant in the main action and was held vicariously liable to the injured plaintiff pursuant to Labor Law § 240(1).  Had Pier 1 paid for its own expenses, it would have been entitled to recover them from Advance as the at fault party.  The court concluded that Advanced, as the at fault party, should be obligated to pay for Pier 1’s legal defense regardless of the fact that TCM and Tricon were contractually obligated to pay for Pier 1’s defense in the main action.  It concluded that TCM and Tricon’s motion to recover the fees they incurred defending Pier 1 from Advanced should have been granted.

 

McCarthy v City of New York
June 26, 2019
Appellate Division, Second Department


Plaintiff allegedly was injured when he fell from the ledge of the domestic broadcast booth at the USTA Billie Jean King National Tennis Center’s Arthur Ashe Stadium. Plaintiff, a stagehand working as a lighting director at the 2014 U.S. Open, was removing a C-clamp that had been used to secure lighting scrim to the exterior of the broadcast booth. The trial court denied defendants' motion for summary judgment seeking dismissal of the Labor Law § 240(1) claim.

Labor Law § 240(1) (DRA)
The Second Department reversed, finding defendants established their prima facie entitlement to summary judgment through the submission of plaintiff's testimony, which demonstrated the work he was performing did not constitute “altering” within the meaning of the statute. Plaintiff testified his work consisted of, bringing in and removing portable lighting equipment, and one of his coworkers attached the scrim, which is a “double-weave fabric” used to equalize lighting levels during filming, to the exterior of the domestic broadcast booth using C-clamps, which are screw-based clamps, and rope.
 
On the day of his accident, plaintiff testified he walked along the ledge outside of the broadcast booth, cut the rope holding the scrim, removed the scrim, and placed those items in the hallway. He went back out on the ledge to retrieve three C-clamps, which were screwed into the roof, and fell backwards onto the stadium below. Thus, the Court held plaintiff’s work of bringing in and removing portable lighting equipment did not constitute altering of any building or structure.  
 
Further, under these circumstances, the placement of a lighting scrim, secured to the exterior of the broadcast booth with screw-based C-clamps, involved no significant physical change to a structure. In opposition to this prima facie showing, plaintiffs failed to raise a triable issue of fact.

PRACTICE POINT:  It is no surprise that removing a C-clamp is not a significant alteration to a building or structure as it does not permanently alter anything; it is, by its very nature, temporary.
 
 

Gutkaiss v Delaware Ave. Merchants Group, Inc.
June 6, 2019
Appellate Division, Third Department 

 
In 2010, with the consent of the City of Albany, Merchants, a not-for-profit corporation, wrapped strands of decorative LED lights around the light poles located along a portion of Delaware Avenue for creating a brighter appearance in the neighborhood. In September 2015, Merchants hired plaintiff, as an independent contractor, to replace light strands located on 36 light poles because many of the light bulbs had become inoperable. Plaintiff was injured when he fell from a 16-foot aluminum-rung extension ladder when the pole that it was leaning on suddenly fell. The trial court granted plaintiff partial summary judgment on the Labor Law 240(1) claim.

Labor Law § 240(1) (DRA)
The Third Department reversed, finding that although replacement of a light fixture on a lighting pole is a repair within the protection of § 240(1) under the facts of this case, the light strands cannot be considered a fixture. Notably, although the light strands remained on the poles year-round, they were placed on the poles for decorative purposes and were not required to fulfill the primary purpose of the light poles in providing illumination to the street and adjacent sidewalk.
 
Nor did the light strands form part of the light poles; they were merely plugged into standard electrical outlets located near the top of each pole, wrapped around the outside of each pole and secured at the bottom of the pole with a single zip tie. Tasks associated with decorating a structure do not fall within the scope of the statute and thus the trial court erred in granting plaintiff partial summary judgment on his § 240(1) claim and in denying the City's cross-motion to dismiss it.

PRACTICE POINT:  Putting up and removing decorations is not a covered activity under the Labor Law.  It is as simple as that.

Labor Law § 200 and Common-Law Negligence (ESB)
The Third Department found the trial court properly denied the City’s motion to dismiss plaintiff’s negligence claims, holding the City failed to establish its defense of qualified immunity from plaintiff’s claims. While a municipality may enjoy qualified immunity from liability arising from highway planning and design decisions that doctrine does not shield a municipality from liability arising from negligent maintenance. Additionally, the Court found the City’s argument based on lack of prior written notice was not preserved for review and, even if plead as an affirmative defense, the record did not disclose that this defense was raised in the City’s cross-motion.  Therefore, it could not be addressed for the first time on appeal.


 
Wright v Ellsworth Partners, LLC
June 13, 2019
Appellate Division, Third Department 

 
Plaintiff allegedly was injured on a construction site when a brace gave way causing a stacked row of scaffolding to fall forward striking him. In a previous appeal from an order deciding the parties’ summary judgment motions, the Third Department held the scaffolding frames, estimated to be about six feet tall, established an elevation differential, but that questions of fact remained as to plaintiff's actual height, the number of scaffolds stacked in the pile that collapsed, the weight of each scaffold, and the manner in which the scaffold(s) struck plaintiff.
 
The parties stipulated plaintiff was 5 feet 7 inches tall, the scaffold frames were six feet tall and weighed 75 pounds each, and there were 10 scaffold frames that fell. The trial court granted defendants’ motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for partial summary judgment establishing liability under Labor Law § 240(1).

Labor Law § 240(1) (DRA)
The Third Department affirmed, as defendant’s expert testimony that "the [five]-inch differential between the top of . . . plaintiff’s head and the maximum height of [the] frames . . . did not significantly contribute to the ‘total’ force at impact of the offending frame as it struck plaintiff”, established a prima facie basis to conclude the elevation differential here was de minimus and plaintiff's claim falls outside the scope of Labor Law § 240(1). 

PRACTICE POINT:  This case is going to be dangerous. It has an expert who is calculating the amount of force with which the falling object to determine if the distance of the fall was de minimus and is taking it back and relating it to the prior falling object cases including Wilinski.  My fear is that in the end, the argument is going to be that the prime issue is the amount of force applied to plaintiff and not if the object truly fell or was appropriately secured, and then we will have experts calculating the number of joules and arguing about the weights, speeds, and distances to use in making that calculation.

 

 

12 NYCRR § 23-1.17 – Protection in Construction, Demolition and Excavation Operations; Life nets.

Regulation § 1.17, prescribes standards for lift nets.

 

Ramirez v Metropolitan Transp. Auth., 106 AD3d 799, 965 NYS2d 156 (2d Dept 2013);
 
Forschner v Jucca Co., 63 AD3d 996, 883 NYS2d 63 (2d Dept 2009);
 
Kwang Ho Kim v D & W Shin Realty Corp., 47 AD3d 616, 852 NYS2d 138 (2d Dept 2008);
 
Dzieran v 1800 Boston Road, LLC, 25 AD3d 336, 808 NYS2d 36 (1st Dept 2006);
 
Bennion v Goodyear Tire & Rubber Co., 229 AD2d 1003, 645 NYS2d 195 (4th Dept 1996);
 
Lawyer v Rotterdam Ventures, Inc., 204 AD2d 878, 612 NYS2d 682 (3d Dept 1994).

 

Ramirez held reg. not applicable where π working on elevated catwalk fell only a few feet and, thus, absence or failure of life net could not be proximate cause of his injuries.
 
Forschner, Kwang Ho Kim, and Dzieran all held reg. inapplicable where π was not provided with such safety equipment.
 
Bennion held reg not applicable because π not using life net at time he fell.
 
Laywer held reg did not apply where π, while erecting a sign on the front of a building, fell from a ladder when it slipped and collapsed.

 


Labor Law Pointers
 
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David R. Adams

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V. Christopher Potenza

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Brian F. Mark
 


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