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Camacho v Ironclad Artists Inc.
July 9, 2019
Appellate Division, First Department
Plaintiff was allegedly injured when he fell off a scaffold that tipped and lacked guard rails. The trial court granted plaintiff’s motion for partial summary judgment against defendants.
 Labor Law § 240(1) (DRA)
The First Department unanimously affirmed, finding the evidence established a prima facie violation of Labor Law § 240(1) because plaintiff was directed to use the scaffold, without guard rails or other protective devices, and his fall was a proximate cause of the accident. Contrary to defendants’ claim, the Court held the alleged failure to unlock the wheels on the scaffold does not raise an issue of fact as to the statute’s violation; citing Celaj v Cornell, 144 A.D.3d 590 (1st Dep’t 2016) (plaintiff’s alleged failure to use the locking wheel devices and his movement of the scaffold while standing on it were, at most comparative negligence, which is not a defense to a section 240(1) claim); see also Vergara v SS 133 W. 21, LLC, 21 A.D.3d 279 (1st Dep’t 2005).
PRACTICE POINT: Where the safety device is not appropriate for the job – here lacking rails – the statute is violated, and thus other negligent actions of the plaintiff are, at best, comparative negligence and cannot, by definition, be the sole proximate cause of the accident.
Conn v Tutor Perini Corp.
July 17, 2019
Appellate Division, Second Department
Decedent was injured while working on the excavation of a trench at JFK Airport. On February 5, 2015, he served a notice of claim on the defendant City of New York, as the owner of the property where the accident occurred, and a separate notice of claim on the defendant Port Authority as the owner and/or lessee of the subject property, alleging that he was injured as a result of their violations of Labor Law §§ 240(1), 241(6), 200, and common-law negligence.
The Notices of Claims specified that he was seeking to recover damages for “personal injuries, loss of earnings, pain and suffering and medical expenses.” In September 2015, decedent commenced this action against the City, the Port Authority, and another defendant but passed away on August 7, 2016. The trial court granted the motion by decedent’s mother, as administrator of the estate and individually, for leave to substitute herself as plaintiff in place of decedent and for leave to amend the complaint to add a wrongful death claim on behalf of decedent’s estate and, in effect, a derivative claim for loss of services on her own behalf, in her individual capacity.
The City and Port Authority appealed from so much of the trial court’s decision that essentially allowed decedent’s mother to amend the complaint to assert a derivative claim on her own behalf.
Labor Law § 240(1) (DRA)
The Second Department reversed and agreed with the City and the Port Authority that the notices of claim were limited to allegations that, as a result of the accident, decedent was caused to sustain damages related to his “personal injuries, loss of earnings, pain and suffering and medical expenses.” Since decedent’s mother was not identified as a claimant in the caption of the notices of claim, she was not mentioned in the text of the notices of claim, and there were no allegations that she, individually, sustained any damages for which compensation was sought from the City or the Port Authority. Therefore, the trial court should not have allowed the derivative claim.
PRACTICE POINT: The requirement for a Notice of Claim is a condition precedent for any suit against a municipal defendant and, as such, one should have been filed for the derivative claim within the appropriate time period following the death of the original plaintiff. Important to remember when a claim is against any municipal entity.
Cruz v. Roman Catholic Church of St. Gerard Magella
in Borough of Queens in the City of N.Y.
July 24, 2019
Appellate Division, Second Department
Plaintiff, an employee of nonparty Innovax, was working as a laborer on a project involving the renovation of a school when he allegedly sustained injuries after the platform of a scaffold on which he was working collapsed and he fell through the frame of the scaffold. The trial court denied plaintiff’s motion for summary judgment on the Labor Law § 240(1) claim.
Labor Law § 240(1) (DRA)
The Second Department reversed, finding that plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the issue of the Labor Law § 240(1) claim. The collapse of a scaffold or ladder for no apparent reason while a plaintiff is engaged in an activity enumerated under the statute creates a presumption that the ladder or scaffold did not afford proper protection (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 289 n 8 [2003]). Thus, in this case, the collapse of the scaffold, for no apparent reason, gave rise to a prima facie showing that the statute was violated, and that the violation was a proximate cause of the worker’s injuries.
The Court rejected St. Gerard’s claim that the plaintiff failed to utilize clips to secure the working platform to the frame of the scaffold, and that this conduct was the sole proximate cause of the accident because St. Gerard relied solely on the affidavit of plaintiff’s supervisor dated nearly 2½ years after the accident, which averred that “[t]here were no clips at the accident location.”
However, the Court noted the affidavit did not explain whether, when, or in what manner he had undertaken a search for clips. Significantly, the absence of clips was not noted in any of three incident reports prepared by the supervisor shortly after the accident and he merely averred, in conclusory fashion, that had clips been used to secure the working platform, “the working platform would be secure and it would not move, slide out or fall.” This bare assertion was insufficient to raise a triable issue of fact as to whether the absence of clips was the sole proximate cause of the accident. The Court also found no evidence to support the claim that, if the platform had been “properly seated or decked,” it would be “secure” and would not “move, slide out or fall.”
PRACTICE POINT: Immediate investigation and collection of statement is of the utmost importance where an accident of this nature occurs. Had there been a statement taken from the supervisor which said that there were no clips used, the opposition to the plaintiff’s motion may have had a different outcome. Photos of the accident site may also have demonstrated the lack of clips used by the plaintiff. Just a reminder that we have a 24-hour response team to investigate construction site accidents to preserve just this type of evidence. Having the team headed by an experienced Labor Law attorney is helpful in directing the investigation so that all potentially important factors are considered.
Davies v Simon Prop. Group, Inc.
July 31, 2019
Appellate Division, Second Department
Plaintiff allegedly was injured while pushing a cart of concrete across a piece of plywood that plaintiff's employer, Allstate, had laid on the ground where a sidewalk had previously been removed. The plywood “flexed,” causing plaintiff and the cart to fall into an adjacent hole. While he testified at his deposition that the plywood bridged a three-foot wide and three-foot-deep hole or trench, two other witnesses testified there was no hole or trench underneath the plywood.
Plaintiff sued the operator of the premises, Simon; the general contractor, Howell: and the company that removed the sidewalk, Ruttura. The trial court granted Simon and Howell’s summary judgment motions dismissing the Labor Law § 240(1) claim on the ground that the three-foot height differential of the sidewalk was not a significant elevation differential that the statute was designed to protect against. The trial court also granted the Simon/Howell summary judgment dismissing the Labor Law § 241(6) claim on the ground that plaintiff’s injuries were not caused by a violation of the Industrial Code section cited by plaintiff.
However, the trial court denied all defendants’ summary judgment motions for dismissal of the Labor Law § 200 and common-law negligence claims on the ground that there was a triable issue of fact as to whether the plywood was laid across a hole or a trench. The court also denied the Simon/Howell motion for summary judgment on the issue of contractual indemnification on behalf of Howell against Allstate on the ground that there was a triable issue of fact as to whether Howell was negligent, and, thus, whether Howell was entitled to contractual indemnification.
Labor Law § 240(1) (DRA)
The Second Department reversed the trial court, finding that there was conflicting testimony about the height differential that the plywood – acting as a makeshift scaffold – spanned and, therefore, that Simon and Howell did not meet their prima facie burden of demonstrating that the alleged injuries were not the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.
PRACTICE POINT: Runner once again. As there are conflicting versions of the accident, and one of them has the plaintiff injured from what the court determined to be a “physically significant elevation differential,” summary judgment could not be awarded to the defendants.
 Labor Law § 241(6) (MAS)
Here, the regulation which plaintiff alleges was violated, 12 NYCRR § 23-1.22(b), concerns structural runways, ramps and platforms, which sets forth standards of conduct sufficiently specific to support a Labor Law § 241(6) claim. The conflicting testimony also raised a triable issue of fact as to whether there was insufficient bracing under the plywood, and Simon and Howell were not entitled to summary judgment on the issue of liability dismissing the § 241(6) claim.
 Labor Law § 200 and Common-Law Negligence (ESB)
On appeal, the Appellate Division, Second Department affirmed denial of Simon’s and Howell’s motions at to Labor Law § 200 and common-law negligence. It found they failed to meet their burden of proving they lacked authority to supervise and control the plaintiff’s work. In fact, the evidence demonstrated Howell had exercised that authority on two prior occasions when it stopped plaintiff’s employer’s work due to unsafe conditions. Further, Simon and Howell also failed to meet their burden of demonstrating lack of notice of the allegedly dangerous condition of the plywood board. Plaintiff’s foreman testified the plywood had been in place “for a couple of weeks,” before the accident. Thus, demonstrating a question of fact as to notice.
With regard to Ruttura, the evidence demonstrated it removed the sidewalk and graded the area in accordance with its contract. Subsequently, another contractor dug the trench that plaintiff’s employer allegedly bridged with the plywood. Therefore, Ruttura met its burden of proof and the order denying its motion for summary judgment as to Labor Law § 200 and common-law negligence was reversed.
 Indemnity Issues in Labor Law (SEP)
The Court agreed with the trial court’s determination denying that branch of the Simon/Howell motion for summary judgment on Howell’s contractual indemnity claim against Allstate. Because Howell could be found 100% liable for the worker’s injury, it held “there is no basis for granting summary judgment on its claim for full or partial contractual indemnification at this juncture.”
Lozada v St. Patrick’s R C Church
July 31, 2019
Appellate Division, Second Department
Plaintiff was preparing cables and wires for the installation of a video surveillance system at a school owned by defendant, a church. At the time of the accident, plaintiff was “running wires in the drop ceiling.” Plaintiff alleged the ladder on which he was standing was unsecured, and when he reached to grab the wires to pull them down from the ceiling, the ladder shifted, which caused him to lose his footing. He allegedly grabbed onto a hole in the wall and stabilized the ladder but sustained severe injuries to his back in the process. The trial court denied plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim, finding triable issues of fact as to whether the ladder was secured and whether plaintiff was the sole proximate cause of his injuries.
Labor Law § 240(1) (DRA)
The Second Department affirmed the trial court’s finding that plaintiff failed to establish, prima facie, a violation of the statute or that his actions were not the sole proximate cause of his injuries. Plaintiff testified at his deposition that the ladder shifted, causing him to lose his footing, and that nobody was holding the ladder at the time of the accident. However, his coworker gave a different account and testified he was standing at the bottom of the ladder, holding it, when he felt the ladder jolt. The Court held that whether the ladder was being stabilized at the time of the accident presents a triable issue of fact because “plaintiff’s own submissions demonstrated that there are triable issues of fact as to how this accident occurred and it cannot be concluded, as a matter of law, that the alleged failure to provide the plaintiff with proper protection proximately caused his injuries.”
PRACTICE POINT: Where there are more that one version of the accident and one or more support the finding of summary judgment and one or more supports denial of the summary judgment motion, the court, as the finder of law and not fact, is bound to rule that there is a question of fact. An important point to take from this case is that the plaintiff need not actually fall to have a § 240(1) case. An injury sustained while preventing yourself from falling from a height qualifies.
Luna v 4300 Crescent, LLC
July 31, 2019
Appellate Division, Second Department
Plaintiff allegedly was injured while attempting to move a mortar buggy down a ramp during the construction of a new building. A jury trial was held on the issue of liability on the Labor Law § 240(1) claim, and the jury returned a verdict in defendant’s favor. Plaintiffs moved to set aside the jury’s verdict and for judgment as a matter of law or, in the alternative, to set aside the verdict as contrary to the weight of the evidence and for a new trial. The trial court denied the motion.
Labor Law § 240(1) (DRA)
The Second Department affirmed, finding there was a valid line of reasoning and permissible inferences which could have led a rational jury to conclude that plaintiff’s own conduct in attempting to move the mortar buggy without assistance, rather than any violation of Labor Law § 240(1), was the sole proximate cause of his alleged injuries. The Court also held it cannot be said that the jury’s verdict could not have been reached on any fair interpretation of the evidence. Therefore, the verdict was not contrary to the weight of the evidence.
PRACTICE POINT: Where a jury has ruled, the verdict will be sustained when there is a “valid line of reasoning and permissible inferences which could have led a rational jury to conclude that the injured plaintiff’s own conduct in attempting to move the mortar buggy without assistance, rather than any violation of Labor Law § 240(1), was the sole proximate cause of his alleged injuries”.
Rutherford v Brooklyn Navy Yard Dev. Corp.
July 31, 2019
Appellate Division, Second Department
Plaintiff sued defendants Brooklyn Navy Yard Development and Monadnock alleging violations of Labor Law §§ 240, and 241, as well as common-law negligence. Prior to discovery, Monadnock moved for summary judgment dismissing the complaint and all cross-claims. The trial court denied as premature Monadnock’s motion, with leave to renew upon completion of discovery.
Labor Law § 240(1) (DRA)
The Second Department affirmed, holding Monadnock’s motion was made before a preliminary conference was held, before any written discovery was exchanged, and before any depositions were taken. Further, the opposition papers submitted separately by plaintiff and Brooklyn Navy Yard established that discovery with respect to several relevant issues raised by Monadnock in its motion, some of which were exclusively within the knowledge of Monadnock, was necessary to oppose Monadnock’s motion. Thus, plaintiff and Brooklyn Navy Yard were entitled to conduct that discovery.
PRACTICE POINT: Many parties are making summary judgment motions earlier in cases than previously done. Where, as here, the evidence necessary to oppose the motion is in the control of the moving party or, for that matter, any party other than the opposing party, the motion will be denied. Recall that while, in this case, leave to renew the motion following discovery was granted, that is not always the case. A party has the right to bring a summary judgment motion only once; and if brought too soon, some courts will simply deny the motion and the opportunity is lost; and a motion which may well succeed following discovery may not be brought.
Allyn v First Class Siding, Inc.
July 5, 2019
Appellate Division, Fourth Department
Plaintiff, an employee of a roofing supplier, allegedly was injured in a forklift accident that occurred while he was delivering supplies to a prospective worksite, four days before any construction work began. First Class Siding, Inc. (defendant), the contractor that bought the supplies and was to perform the work, was not yet present on the site when the accident occurred. The trial court granted defendant’s motion for summary judgment seeking dismissal of plaintiff’s complaint and denied plaintiff’s cross-motion for partial summary judgment.
Labor Law § 240(1) (DRA)
The Fourth Department affirmed, finding defendants met their initial burden on the motion with respect to the Labor Law § 240 (1) claim against them by establishing that plaintiff was not “hired to take any part in the repair work” (Bagshaw v Network Serv. Mgt., 4 AD3d 831, 832 [4th Dept 2004]). More particularly, the activity in which plaintiff was engaged was not “performed during” the repair of a structure, nor was it “ancillary to . . . ongoing renovation work” (Foots v Consolidated Bldg. Contrs., Inc., 119 AD3d 1324, 1325-1326 [4th Dept 2014]. In opposition, the plaintiff failed to raise a triable issue of fact.
PRACTICE POINT: An injury while delivering supplies to the work site prior to the commencement of work is not considered a part of the covered activity and thus not a valid § 240(1) claim.
Winters v Uniland Dev. Corp.
July 5, 2019
Appellate Division, Fourth Department
Plaintiff, an electrician employed by third-party defendant, was assigned to work on a demolition project in a certain building. Defendants were the owners of the building and the general contractor. Plaintiff’s job was to make the wiring in the office safe. When he arrived, there were plastic-sheathed wires lying on the floor and hanging from the ceiling. He had to determine the voltage of the wires on the floor but, before he could do that, he had to strip away two or three inches of the plastic sheathing. After accomplishing that task, he separated the black, white, and copper wires inside using pliers. To use his multimeter to test the voltage, he had to strip one quarter inch of insulation from the black wire. Using a pair of wire strippers, he cut into the black wire and suffered an electric shock. The trial court granted defendants’ motions seeking dismissal of plaintiff’s complaint alleging a violation of Labor Law § 241(6).
Labor Law § 241(6) (MAS)
The Fourth Department reversed and reinstated the Labor Law § 241(6) claim predicated on alleged violations of Industrial Code (12 NYCRR) regulations 23-1.13(b)(4) and 3.2(a)(2) and (3). Regulation 1.13(b)(4) states that “[n]o employer shall suffer or permit an employee to work in such proximity to any part of an electric power circuit that he may contact such circuit in the course of his work unless the employee is protected against electric shock by de-energizing the circuit and grounding it or by guarding such circuit by effective insulation or other means.”
Regulation 3.2(a)(2) states that electric lines must be “shut off and capped or otherwise sealed” before any demolition projects begins, and under (a)(3) if it is necessary to maintain an electric line during demolition, “such lines shall be so protected with substantial coverings or shall be so relocated as to protect them from damage and to afford protection to any person.”
Here, the Court held defendants failed to meet their burden of establishing they “did not violate the regulations, that the regulations are not applicable to the facts of this case, or that such violation was not a proximate cause of the accident.”
Thompson v M & M Forwarding of Buffalo, N.Y., Inc.
July 31, 2019
Appellate Division, Fourth Department
Defendant TBT Corporation (TBT) owns a warehouse it leased to defendant M & M Forwarding of Buffalo (M & M), who subleased a portion of the warehouse to plaintiff’s employer, a nonparty. Plaintiff allegedly was injured at the warehouse in the course of his work, and he commenced this action against defendants to assert theories of liability under Labor Law §§ 240(1) and 241(6). Defendants cross-claimed for indemnification against each other. The trial court denied M & M’s cross-motion to the extent it sought summary judgment dismissing TBT’s cross-claim against it and that reserved decision on TBT’s cross-motion to the extent it sought summary judgment dismissing M & M’s cross claim against it.
Indemnity Issues in Labor Law (SEP)
The Fourth Department agreed with M & M that it was not an “owner” of the warehouse for purposes of the Labor Law, and that TBT is the true “owner”; therefore, TBT cannot be entitled to indemnity from M & M. Therefore, the trial court should have granted M & M’s cross-motion seeking summary judgment dismissing TBT’s cross-claim against it because M & M established “it was an out-of-possession lessee of the property that neither contracted for, nor supervised the work that brought about the injury, and had no authority to exercise any control over the specific work area that gave rise to plaintiff’s injuries.
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