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Labor Law Pointers - Volume X, No. 1

 
 

Labor Law Pointers

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

Volume X, No. 1
Wednesday, December 2, 2020

 

From the Editor:
 

Do you have a situation?  We love situations.  Give us a call, send an email, drop by; we truly enjoy solving complex Labor Law and risk transfer issues.   
 
We have made some changes to the newsletter this month and moving forward.  I have stepped back from writing the § 240(1) analysis and Marc Schulz from our Buffalo office will be handling that task.  Tim Welch out of our Rochester office will be analyzing the § 241(6) portion of the cases, Eric Bernhardt from Buffalo will continue to address the § 200 and negligence claims, Brian Mark from our New York City Metro office will address the Indemnity and Risk Transfer issues, and Eric Andrew from our Buffalo office will prepare the NY Industrial Code analysis.   
 
We are here to help you understand and analyze all areas of the New York Labor Law, and we are available to assist in all regions of the state. 
 
While our Labor Law team is specifically experienced in Labor Law defense and Risk Transfer, we are blessed to have as a part of our firm an incredibly talented and experienced Coverage Team – led by Dan Kohane and Steve Peiper – available to us, our clients, and carriers to assist when coverage issues arise, as they so often do.  The synergy of this situation allows us to obtain the best possible outcome for our clients in all portions of their defense.    
 
We have many new readers this month, so I will remind everyone that all of our past issues, (and there are a lot of them) are available on our website, with a search function to allow specific cases or issues to be located.  As always, feel free to simply call, text, or email with any question; my cell is 716-553-6901 and my email is [email protected].  We are happy to discuss the finer points of any case and are always available to assist. 
 
There are a lot of cases today. If you have any additional questions about any of these cases, or about one you are currently handling, just give us a call or email; we are always willing to help.   
 
On to the photos: 
 
Here we have our first scenario, a painter who was issued PPE, including safety boots, a hi-vis vest, gloves, eye protection, hard hat, a harness and lanyard, and other assorted equipment, which was still in the bag, in the truck, on the work site.  The company he works for is hired to paint a new hotel, which is getting ready to open.  Unfortunately, the plaintiff, in spite of having taken the OSHA 10-hour course, which specifically covers the appropriate use of all the PPE he was provided, was unaware of exactly how to utilize the equipment; so he improvises.  Plaintiff’s supervisor takes this picture of the plaintiff to send to a Labor Law Newsletter, hoping to win a cash prize. However, he does not admonish him in any way; he just takes the photo.  Shortly thereafter, the plaintiff slips and, though he does not fall to the ground, he does, unfortunately, sustain a severe neck injury.  § 240(1) case? 


The plaintiff argues he made a prima facie case for § 240(1).  Plaintiff is a person so employed, the building owner is an appropriate defendant, the project is painting (a protected activity), and the injury was gravity-related.  The defense argues sole proximate cause as a defense as well as that the plaintiff did not actually fall.  As to the fact that the plaintiff did not fall, so long as the injury was caused by the effect of gravity, the plaintiff has a case.  Where a plaintiff grabs a ladder to prevent himself from falling and causes injury, it is a valid § 240(1) case?

As to sole proximate cause, the same five elements always control. 

  1. The plaintiff must be provided an appropriate safety device.  Here he was provided with all the appropriate PPE, including a harness and lanyard. 
  1. The appropriate safety device must be available.  The courts have determined that on-site is sufficient, so this condition was met. 
  1. The plaintiff must be instructed to utilize the safety device or understand that he was expected to do so.  Here, the plaintiff was instructed as to the proper use of the safety device in an OSHA class and did not follow those instructions.  The employer has that OSHA information, and it is established that plaintiff was so-instructed. 
  1. The plaintiff must misuse or fail to use the safety device.  The plaintiff clearly misused the safety device. 
  1. The plaintiff must misuse or fail to use the supplied, appropriate safety device for no good reason.  Plaintiff has no good reason for his failure to use the harness and lanyard.

So, is this a § 240(1) case?  In the end, it is, as the sole proximate cause defense fails on the “instructed to use the safety device element.”  The fact that the plaintiff’s supervisor saw the plaintiff working in this fashion and did not tell the plaintiff to put on his harness indicates that the supervisor tacitly approved of the plaintiff method of work and thus the plaintiff will not be deemed to have been instructed to use the harness and lanyard.  Summary judgment for the plaintiff.

In our next scenario, the plaintiff is an OSHA-trained electrician, working for a company hired by the building owner to install new conduit and outlets, so new lights could be installed.  After lunch, and in a hurry to leave for the day, the plaintiff, with just one more to install, realizes that he left the keys to the lift in his coat pocket in his car, and rather than go and get it, he decides to stand on the rail to install the final outlet.  As luck would have it, the three beers he had for lunch cause him to lose his balance and fall, sustaining injury.  § 240(1) case?



Once again, the plaintiff has a prima facie case, as he is a person so employed, sued a valid defendant in the building owner, was engaged in a protected activity (construction or alteration of a building or structure), and was injured by the application of the force of gravity.  The defendant argues sole proximate cause, the plaintiff has the appropriate safety device, was trained to use it, and failed to do so only because he left the keys in his car and did not want to go and get them.  Summary judgment for the defendant.

Here, we have a plaintiff, employed by a painting contractor, painting a New York State owned bridge, while working from the bucket of a backhoe.  All is going according to plan until the operator, just back from lunch with the guy in the scenario above, lifts the bucket, not realizing that the plaintiff was working in the bucket, catching plaintiff between the bridge and the bucket, causing severe injury to his arm.  All the employees have their OSHA 10.  § 240(1) case?


You may notice that in each scenario today, the plaintiffs all had taken the OSHA 10-hour course.  It is hard to find a construction worker today who has not.  Given that fact, all the attorneys in our group are OSHA certified current and have taken the course.  It is critical that the attorney handling any case involving the potential for a sole proximate cause defense understands, exactly, the training the plaintiff was provided, to establish that essential element of the defense, thus we all took the course.
 
Well, the plaintiff is a person so employed; the owner, New York State, can be sued only in the Court of Claims, so if they sue it in that court there no issue.  (As an aside to sue the state a notice of claim must be filed within 90 days of the accident and the statute of limitations is 1 year and 90 days, not the normal 3 years.)  The plaintiff was working at an elevation and was injured.  There is no possibility for a sole proximate cause defense, as the plaintiff can’t be the SOLE cause of his injury, given that the operator caused him to be caught and injured.  The defense here will argue that the injury, although sustained while working at height, and while engaged in a protected activity, was not in any way caused by the application of gravity.  Here, the injury was caused by the application of force caused by the movement of the bucket hydraulics, not gravity.  Summary judgment for the defendant.
 
That is all for this month, please stay safe and feel free to reach out with any “situations,” even if just to confirm what you already know and say hi. 

Stay safe.

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


Don’t forget to subscribe to our other publications:

Coverage Pointers: This twice-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.

Employment & Business Litigation Pointers:   This newsletter aims to provide our clients and subscribers with timely information and practical, business-oriented solutions to the latest employment and general business litigation developments.  Contact Joseph S. Brown at [email protected] to be added to the mailing list.

Medical & Nursing Home Liability Pointers:  Hurwitz & Fine, P.C.’s newest legal alerts contain timely news on medical and nursing home liability claims, including updates on the impact of COVID-19.  Contact Chris Potenza at [email protected] to subscribe.

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.

Products Liability Pointers:  Whether the claim is based on a defective design, flawed manufacturing process, or inadequate instructions/warnings, products liability litigation is constantly evolving.  Products Liability Pointers examines recent New York State and Federal cases as well as high court decisions from other jurisdictions, keeping our readers up-to-date with the latest developments and trends, and providing useful practice tips and litigation strategies.  This monthly newsletter covers all areas of products liability litigation, including negligence, strict products liability, breach of warranty claims, medical device litigation, toxic and mass torts, regulatory framework and governmental agencies. Contact V. Christopher Potenza at [email protected] to be added to the mailing list.

 

  Rivas v Nestle Realty Holding Corp.
November 5, 2020
Appellate Division, First Department

 
Plaintiff fell to the ground when he placed his foot on the top step of a recently constructed stairway leading to the elevated deck where he was to perform his work, and the step became detached from the stairway. Plaintiff testified the stairway was the sole means of access to his work area, was unfinished, and lacked handrails and supports under each step. The trial court granted plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim. 
 
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed; finding plaintiff met his initial burden of proof by submitting his testimony that established defendants failed to provide him with a proper elevation-related safety device, in violation of § 240(1), and that this violation proximately caused his injuries. In opposition, defendants failed to raise an issue of fact as to whether the stairway was the sole means of access to the elevated deck and whether plaintiff was the sole proximate cause of his accident, given the undisputed failure of the stairway to protect him.  Defendants pointed to plaintiff’s use of a ladder on a previous occasion to argue he should have used it, rather than the stairway, to access his work area, but failed to show that a ladder or other safety device was readily available on the day of the accident or that a ladder was an adequate safety device for the job. 
 
PRACTICE POINT: You will often hear that under Labor Law § 240(1), it is conceptually impossible for a statutory violation (which serves as a proximate cause for a plaintiff’s injury) to occupy the same ground as a plaintiff’s sole proximate cause for the injury.” As the stairway in this case failed to protect plaintiff from falling and caused him to fall, his alleged failure to use a ladder could never be the sole proximate cause of his injury. 
 
 

Kaufman v Capital One Bank (USA) N.A. 
November 10, 2020 
Appellate Division, First Department 

 
Plaintiff, the only person working on a gut renovation project in a vacant building on the day of the accident, was allegedly pushing a dumpster with four wheels on a “ramped,” “uneven” part of the floor leading to a “door saddle,” in an attempt to move the dumpster out of the building through the front door, when one of the wheels became caught on the saddle, causing the dumpster to begin tipping over. He was injured while attempting to prevent the dumpster from falling. The trial court denied defendants’ summary judgment motion to dismiss the Labor Law § 241(6) claim to the extent it was based on a violation of Industrial Code (12 NYCRR) §§ 23-1.7(e)(1) and (2). 
 
Labor Law § 241(6) (TPW)
The First Department unanimously affirmed; finding plaintiff raised a question of fact as to the cause of the accident. The court began its analysis by noting that, as the nonmoving party, Plaintiff was entitled to a review of the facts in a light most favorable to Plaintiff. Ultimately, defendants were found to have failed to meet their initial burden of establishing the inapplicability of the Industrial Code. Specifically, § 23-1.7(e)(1) was deemed to apply not only to circumstances where a hazard directly causes a worker to trip or slip, but also where an object being pushed becomes stuck on an obstruction, causing it to tip over and injure plaintiff.  In addition, the doorway in which plaintiff was moving was confirmed to be a passageway within the meaning of the Industrial Code. Lastly, defendants failed to establish the absence of issues of fact as to § 23-1.7(e)(2) on the issue of whether a “sharp projection” was involved, which had previously been defined to “include any projection that is ‘sharp’ in the sense that it is clearly defined or distinct.”   
 
 

Sande v Trinity Ctr. LLC 
November 12, 2020 
Appellate Division, First Department 

 
Plaintiff tripped on an electrical box allegedly concealed by debris at the work site. The trial court denied plaintiffs’ motion for partial summary judgment on the Labor Law § 241(6) claim predicated on Industrial Code (12 NYCRR) §§ 23-1.7(e)(2) and 23-3.3(k) as well as the Labor Law § 200 and common-law negligence claims. 
 
Labor Law § 241(6) (TPW)
The First Department unanimously reversed the trial court and found plaintiff was entitled to summary judgment on the Labor Law § 241(6) claim premised upon a violation of 12 NYCRR § 23-1.7(e)(2). The Court noted, the distinction that plaintiff tripped, not on the debris itself, but on an electrical box concealed by the debris, did not alter the fact that the debris was a cause of the accident. It was affirmed, however, that § 23-3.3(k) was inapplicable as demolition was not in progress or the result of demolition, and the pile did not consist of “materials” being “stored.” 
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed denial of plaintiff’s motion as to Labor Law § 200. It found that plaintiff failed to make a prima facie showing that defendants were on notice of the pile of debris that caused his accident. Further, it held plaintiff’s expert could not and did not address notice, and his opinions were otherwise conclusory. 
 
 

Singh v Manhattan Ford Lincoln, Inc. 
November 12, 2020 
Appellate Division, First Department 

 
Plaintiff slipped on debris, which had been accumulating on the street by the dumpster for two to three hours prior to his accident. This debris may have been from workers throwing and pouring it from the sidewalk bridge and sweeping it from the sidewalk below, which allegedly caused it to accumulate by the dumpster where he slipped. The trial court denied plaintiff’s motion for summary judgment on the Labor Law § 241(6) claim predicated on Industrial Code (12 NYCRR) §§ 23-1.7(e)(1) and (2) as against defendants MFL and B & S and granted MFL’s motion for summary judgment dismissing the § 241(6) claim predicated on Industrial Code § 23-1.7(e)(1) and (2) as well as the Labor Law § 200 and common-law negligence claims as against it. 
 
Labor Law § 241(6) (TPW)
The First Department unanimously modified the trial court’s decision and reinstated plaintiff’s Labor Law § 241(6) claim pursuant to Industrial Code 23-1.7(e)(2).   The Court held triable issues of fact exist as to whether the debris on which plaintiff slipped was integral to his work.  Critical to the court’s analysis was plaintiff’s scope of work and the question of whether plaintiff was engaged in the same debris removal work as his co-workers who were throwing, pouring, and sweeping the debris.  However, the outdoor open area in which plaintiff slipped was deemed not to be a passageway rendering Industrial Code 23-1.7(e)(1) inapplicable. 
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department reversed the trial court’s decision and reinstated the Labor Law § 200/common-law negligence claim against MFL. It held that MFL failed to establish it lacked constructive notice of the debris, which plaintiff testified had been accumulating on the street by the dumpster for several hours before the incident. 
 
 

Sunun v Klein 
November 12, 2020 
Appellate Division, First Department 

 
Plaintiff allegedly was injured when he stepped on an area of ground that had been excavated to create a trench and then backfilled with soil during an earlier phase of the construction project. The area was not guarded after it was backfilled. Plaintiff testified his leg sank into the ground up to the middle of his thigh, and a coworker who was present at the time corroborated that, after plaintiff was extracted from the hole, there was mud present on his leg that rose above the level of plaintiff’s knee. Plaintiff’s expert opined that the trench had been filled with insufficiently dense or compactable soil and that the risk that such soil would become soft and would settle was exacerbated by three days of rainfall that included the night before the accident.   
 
The trial court granted defendants’ motions for summary judgment dismissing the Labor Law § 240(1) claim, as well as the Labor Law 241(6) claim based on violations of Industrial Code (12 NYCRR) §§ 23-1.7(b)(1)(i) and 23-4.2(i).  It denied plaintiff’s motion for partial summary judgment on those claims, denied defendants Beth Klein and Fountainhead Construction Inc.'s motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims as against Fountainhead, and on their contractual indemnification claims against third-party defendant Cedar Design, Inc., and granted Cedar’s motion for summary judgment dismissing those contractual indemnification claims. 
 
Labor Law § 240(1) (MAS)
The First Department reversed as to plaintiff as it was undisputed that no safety devices were provided to plaintiff to protect him against the gravity-related risk of descending a significant distance into the trench. Thus, the Court held plaintiff established prima facie entitlement to partial summary judgment, as the elevation differential between the ground level and the lower level to which plaintiff’s foot and leg sank is similar to the risk that a worker standing on a platform on a body of water would fall into the water, which has been deemed covered under Labor Law § 240(1). 
 
Labor Law § 241(6) (TPW)
Considering its holding under Labor Law § 240(1), the Court declined to address the Labor Law § 241(6) claim. 
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed denial of Fountainhead’s motion for summary judgment as to the Labor Law § 200 and common-law negligence claims, holding that it failed to eliminate all issues of fact as to whether a reasonable inspection of the backfilled trench would have revealed the hazardous condition, and whether it conducted such an inspection in the first instance. (In other words, Fountainhead failed to demonstrate the absence of notice.) 
 
Indemnity Issues in Labor Law (BFM)
The indemnification provision of Cedar’s subcontract with Fountainhead required Cedar to indemnify Fountainhead and Klein for any liability for personal injuries arising out of or resulting from the work performed by Cedar under the subcontract.  Finding that the indemnity provision was triggered, the First Department held that Fountainhead was conditionally entitled to contractual indemnification from Cedar, pending a determination of whether the accident was caused by Fountainhead’s negligence.  The Court further determined that Klein was unconditionally entitled to indemnification from Cedar, as the Court dismissed the Labor Law § 200/common-law negligence claims against her. 
 
 

Albuquerque v City of New York 
November 17, 2020 
Appellate Division, First Department 

 
Plaintiff allegedly was injured by a bracing timber thrown into the trench where defendants’ contractor was installing a water main to brace a section of pipe. The trial court granted plaintiffs’ motion for partial summary judgment on their Labor Law § 240(1) claim.   
 
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed.  It found the bracing timber was “a load that required securing,” despite the fact it was deliberately lowered down. The Court rejected defendants’ claim that plaintiff was not standing in a drop zone and was not struck by an object or debris for which a securing device was “necessary or even expected.”  
 
PRACTICE POINT: As plaintiff’s work involved a load that required securing and because plaintiff’s injury was the foreseeable consequence of the risk of performing the task without any safety device of the kind enumerated in the statute (bracing, shoring, etc.), plaintiff was entitled to partial summary judgment, because plaintiff need only show that the statute was violated and that the violation was a proximate cause in causing plaintiff’s injuries. 

 

Cabrera v 65 Park W. Realty, LLC 
November 17, 2020 
Appellate Division, First Department 

 
Plaintiff was injured when an allegedly unsecured ladder slipped out from under him. The evidence was uncontroverted that the ladder tipped over and paint splattered on the floor, and the building superintendent had cleaned the boiler room since the accident happened. Plaintiff and his coworker both testified the building superintendent’s husband, who hired them, instructed plaintiff to paint the ceiling. The building superintendent testified that she only wanted three walls painted and not the ceiling; however, she had no knowledge of the instructions that her husband gave plaintiff and his coworker. The trial court denied plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim.   
 
Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court and held plaintiff’s testimony that the unsecured ladder slipped out from under him established prima facie his entitlement to summary judgment. The Court rejected defendants’ contention that an issue of fact exists as to whether the ladder was appropriate to perform the work since plaintiff was not required to show the ladder was defective. Defendants also failed to raise an issue of fact as to whether the ladder fell at all or plaintiff simply lost his footing or his balance.  
 
PRACTICE POINT:  Where a ladder slides, shifts, tips over, or otherwise collapses for no apparent reason, causing plaintiff to fall or be injured, plaintiff has established a violation of Labor Law § 240(1). However, if plaintiff falls from a ladder because he or she lost his balance and there is no evidence that the ladder was defective or inadequate, liability under the statute does not attach. 
 
 

Matter of Bento v Dormitory Auth. of the State of N.Y. 
November 17, 2020 
Appellate Division, First Department 

 
Petitioner was injured at a CUNY building. The trial court granted petitioner’s motion for leave to serve a late notice of claim nunc pro tunc regarding his Labor Law §§ 240(1) and 241(6) claims against the Dormitory Authority of the State of New York (DASNY).   
 
Labor Law § 240(1) (MAS)
The First Department unanimously reversed and held the trial court improvidently exercised its discretion in granting petitioner’s motion. Respondent DASNY, an out-of-possession title owner, does not bear liability for petitioner’s injuries because it surrendered all control and possession to CUNY once a building is completed, and is not subject to non-delegable duties that owners may have, like providing safe working conditions pursuant to Labor Law §§ 240(1) and 241(6) claims. 
 
 

Sacko v New York City Hous. Auth. 
November 17, 2020 
Appellate Division, First Department 

 
Plaintiff allegedly fell from a ladder when it suddenly shifted and collapsed. The trial court granted plaintiff's motion for summary judgment on his Labor Law § 240(1) claim.   
 
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed; finding plaintiff made a prima facie showing that his injuries were proximately caused by a violation of the statute, as his testimony established that defendants failed to provide a safety device that would ensure that the ladder, which he was instructed to use, would remain upright while he performed his statutorily covered work. 
 
PRACTICE POINT: Where plaintiff falls due to the ladder shifting, slipping, twisting, moving, jumping, dancing, bouncing, or otherwise changing position, the court will grant summary judgment on § 240(1). The decision discusses plaintiff’s alleged failure to fully secure the ladder before he used it, however, as we all should know by now, that failure, at most, is comparative negligence and is not sufficient to defeat plaintiff’s motion. 
 
 

Sinera v Embassy House Eat, LLC 
November 17, 2020 
Appellate Division, First Department 

 
Plaintiff was ascending a ladder, which was missing one of its plastic feet, when it moved and fell over, causing injury. The trial court granted plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim.  
 
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed, as plaintiff established prima facie liability against defendants under Labor Law § 240(1). The Court rejected defendants’ contentions that plaintiff was the sole proximate cause of his accident, as defendants failed to point to evidence that plaintiff knowingly selected a defective ladder from among many others and then placed it on an uneven floor that he did not notice was uneven.  
 
PRACTICE POINT:  A plaintiff is the sole proximate cause of his or her own injuries and a defendant has no liability under Labor Law § 240(1) when plaintiff: (1) had adequate safety devices available; (2) knew both that the safety devices were available and that he or she was expected to use them, (3) chose for no good reason not to do so, and (4) would not have been injured had he or she not made that choice. 
 
 

Wenk v Extell W. 57th St. LLC 
November 17, 2020 
Appellate Division, First Department 

 
Plaintiff, an ironworker, stepped into an approximately 12-inch-deep hole, concealed by black felt, while working on the roof of a construction site. L. Martone and Sons, Inc.’s vice president, who also served as the supervisor and foreman on the project, testified that L. Martone was charged with providing temporary protection against the drain holes while awaiting plumbers to install permanent protection, that it used bags of limestone for such purposes, and that he, as the foreman, was responsible for ensuring that the bags were in place until the installation of the permanent protection.  It was undisputed that, without the bags, the holes would be hidden under a black felt sheet.  Further, a witness testified that there were no warning signs instructing others to not remove the bags, and plaintiff and his co-workers testified they never received any warnings of holes under the felt sheet. The trial court granted plaintiff’s motion for partial summary judgment on the Labor Law § 200 and common-law negligence claims.   
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed plaintiff’s motion for summary judgment as to Labor Law § 200 and common-law negligence. First, the Court held that the evidence demonstrated L. Martone was a “statutory agent” for purposes of § 200, as it had been delegated the authority to control the activity which brought about the injury. Specifically, it’s vice president, a supervisor and foreman on the project, testified that L. Martone was charged with providing temporary protection against the drain holes while awaiting plumbers to install permanent protection; that L. Martone used bags of limestone for such purposes; and that he, as the foreman, was responsible for ensuring that the bags were in place until the installation of the permanent protection. However, he also testified that, without the bags, the holes would be hidden under a black felt sheet, but there were no warning signs instructing others not to remove the bags, nor did plaintiff or his co-workers receive any warnings of holes under the felt sheet. Accordingly, the manner and means of performing the work resulted in the creation of a hazardous condition, subjecting L. Martone to liability pursuant to Labor Law § 200. 
 
 

Gallegos v Bridge Land Vestry, LLC 
November 19, 2020 
Appellate Division, First Department 

 
Plaintiff allegedly was injured when a stone slab weighing more than half a ton, which was being raised by a chain hoist or remote-controlled crane, came loose from the sling or straps securing it, and fell on his legs. The trial court denied plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim against defendants Bridge Land Vestry, LLC and Related Construction, LLC. 
 
Labor Law § 240(1) (MAS)
The First Department unanimously reversed and held the statute was violated because the sling proved inadequate to secure the slab against falling. The Court rejected defendants’ contention that because the hoist and slings had sufficient load capacity to hoist the slab and were not broken or defective, plaintiff was required to demonstrate how the slab became unsecured.  It held, either the sling itself or the manner in which it was used to secure the slab was inadequate and failed to provide proper protection, and plaintiff was not required to demonstrate how or why it failed to support the slab. 
 
PRACTICE POINT:  Despite the conflicting testimony regarding who secured the sling to the slab, the result for plaintiff is the same.  If plaintiff failed to do it, at most, that would be comparative negligence. If his coworker failed to properly secure the slab with the straps, such conduct is not so extraordinary or removed from defendant’s duty to provide an adequate safety device so as to constitute a superseding, intervening event sufficient to break the chain of causation. 
 
 

Mejia v Unique Dev. Holding Corp 
November 19, 2020 
Appellate Division, First Department 

 
Plaintiff allegedly was injured when a load of lumber fell from a pallet that was being hoisted onto the roof of a newly constructed five-story apartment building. While plaintiff was signaling to the boom truck driver where to lower the load, the metal bands securing the lumber "burst," causing the lumber to fall, and a piece to rebound off the floor and strike plaintiff. Defendant Montrose owned the building, Unique was the general contractor, and defendant Certified supplied and delivered the lumber. Plaintiff was responsible for cleaning debris and receiving deliveries. The trial court granted plaintiff’s motion for partial summary judgment on the Labor Law § 240(1) claim, denied Montrose’s cross motion for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims, and granted defendant Certified’s cross motion to dismiss the complaint and all cross claims as against it. 
 
Labor Law § 240(1) (MAS)
The First Department affirmed, as the record established that plaintiff was engaged in an enumerated activity under the statute. Plaintiff’s job of receiving the delivery of construction material at the time of the accident was a covered activity because it was “ancillary to” the construction work, despite his testimony that the building had been completed.  
 
PRACTICE POINT:  Defendant Montrose’s attempt to raise an issue of fact as to whether the building was “already completed” versus “almost done” as claimed by Unique proved fatal to its opposition, since it contradicts Unique’s manager’s testimony and was deficient for lack of personal knowledge of the construction activities. If you are going to submit an affidavit in opposition to a motion, remember to always confirm the witness has a sufficient basis of personal knowledge or documentary evidence to support their statements. 
 
Labor Law § 241(6) (TPW)
The First Department affirmed, without discussion, the trial court’s decision denying defendant Montrose Park, LLC's cross-motion for summary judgment as to the Labor Law § 241(6) claims.    
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department reinstated plaintiff’s common-law negligence claims against Certified. It found that the evidence, specifically the testimony of the Certified employee who delivered the lumber, demonstrated triable issues of fact as to whether Certified was negligent in securing and/or unloading the lumber, because that employees testimony was ambiguous and contradictory as to whether he inspected the metal bands before delivering them to the roof.   
 
Indemnity Issues in Labor Law (BFM)
Finding triable issues of fact as to whether Certified was negligent in securing or unloading the lumber, the First Department reinstated Montrose’s cross claims for common-law contribution and indemnification against Certified. 
 
 

Goundan v Pav-Lak Contr. Inc. 
November 24, 2020 
Appellate Division, First Department 

 
Plaintiff was attempting to install an exit sign in a building under construction, while standing about 12 feet above the floor on a scaffold platform, without using any safety harness or safety lines, when he touched a live wire to a component of the sign, causing him to receive an electrical shock, and to fall off the scaffold onto the floor. The trial court denied plaintiffs’ cross-motion for partial summary judgment on the Labor Law § 240(1) claim. 
 
Labor Law § 240(1) (MAS)
The First Department unanimously reversed and granted plaintiff summary judgment as he made a prima facie showing that his accident was proximately caused by the inadequacy of the safety devices he was using or the absence of other safety devices necessary to protect him from the risks posed by working at significant elevation above the floor. 
 
PRACTICE POINT: Remember it is not automatically a slam dunk for a plaintiff who is electrically shocked and falls from a ladder. The defense of such claims should focus on the safety device(s) and whether they were appropriate for the injury-producing work under Labor Law § 240(1). Here, it did not matter if plaintiff failed to turn off the power supply before working with a live wire as such conduct will often only be deemed comparative negligence. 

 

Padilla v Absolute Realty, Inc. 
November 24, 2020 
Appellate Division, First Department 

 
Plaintiff allegedly was injured while engaged in roofing work at an elevation and was not supplied any safety devices. The trial court granted plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim as against defendant Absolute and denied Absolute’s motion for summary judgment dismissing the claims alleging common-law negligence and a violation of Labor Law § 200, and on its claim for common-law indemnification against defendant Fiedler. 
 
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed, as there was no dispute that plaintiff was injured while engaged in roofing work at an elevation, and was not supplied any safety devices, which was a proximate cause of his accident. Any conflicting testimony as to the type of work plaintiff was performing, and the manner in which the accident occurred, was deemed immaterial considering the absence of statutorily required safety equipment. 
 
PRACTICE POINT: Where the undisputed testimony is that plaintiff fell from a roof while engaged in roofing work, and was not provided with any safety devices, it is summary judgment for plaintiff all day. 
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department reversed the trial court’s denial of Absolute’s motion for summary judgment as to Labor Law § 200 and common-law negligence. It held that Absolute met its burden of proof by demonstrating that it did not exercise control over the manner and means of plaintiff's work. 
 
Indemnity Issues in Labor Law (BFM)
The First Department found that the record established that there were no protective devices on the roof and that Fiedler’s supervisors, who visited the site each day, did not exercise their authority to order that the situation be remedied.  Thus, it held that Absolute’s motion for summary judgment on its claim for common-law indemnification against defendant Fiedler should have been granted.  The Court noted that whether Fiedler may seek contribution from any other party was not an issue before the Court. 
 
 

Pina v Arthur Clinton Hous. Dev. Fund Corp. 
November 24, 2020 
Appellate Division, First Department 

 
Plaintiff testified that his injuries resulted from a slippery condition at the work site. However, he also gave conflicting accounts to his medical providers, and two other witnesses testified that plaintiff told them that he struck himself in the face with plywood while prying it up and the plywood “went back” on him.  Plaintiff’s own submissions to the Workers Compensation Board also provided inconsistent accounts of how the accident occurred, and did not mention a slip and fall on a watery surface. The trial court denied plaintiff’s motion for summary judgment on his Labor Law § 241(6) claim. 
 
Labor Law § 241(6) (TPW)
The First Department unanimously affirmed denial of plaintiff’s Motion for Summary Judgment on his Labor Law § 241(6) cause of action pursuant to Industrial Code § 23-1.7(d).  Defendant successfully raised a question of fact as to the applicability of this section focusing on slipping hazards.  Plaintiff's own conflicting accounts of what caused the accident, plaintiff’s inconsistent statement in his medical records, and two additional witnesses’ testimony that plaintiff told them that he struck himself in the face with plywood while prying it up, were sufficient to raise a triable issue of fact as to how the accident occurred and whether a slip and fall on a wet surface was a proximate cause.  
  
Of note, defendant submitted portions of plaintiff’s medical records in opposition to plaintiff's summary judgment motion. The records revealed inconsistent descriptions of the accident and, given the records were directly attributable to plaintiff, constituted party admissions.  The court continued “[e]ven assuming that these entries constituted hearsay, they may be submitted in opposition to plaintiff's motion and properly considered in conjunction with the other evidence in the record, which provided different descriptions of the accident.” 
 
PRACTICE POINT:  Litigators should keep in mind that medical records may be a ripe source of party admissions, which may prove a difference-maker on motions or at trial.  Just make sure they are in admissible form. 
 
 

Fraser v King 
November 4, 2020 
Appellate Division, Second Department 

 
Plaintiff allegedly sustained injuries while performing construction work at a house owned by defendants, who were the owners of a one-family dwelling, and who made aesthetic decisions and exercised general supervision with respect to the project. The trial court granted defendants’ motion for summary judgment dismissing the Labor Law § 241(6) claim and denied plaintiff’s cross-motion for summary judgment on the issue of liability. 
 
Labor Law § 241(6) (TPW)
The Second Department affirmed the grant of defendant’s Motion for Summary Judgment on plaintiff’s Labor Law § 241(6) cause of action under the homeowner’s exception to the Labor Law.  The Court reaffirmed that owners of one- or two-family dwellings used as their residence are exempt from liability under Labor Law § 241(6) unless they actively direct or controlled the work being performed.  Here, it was undisputed defendants were such owners and plaintiff was only able to establish that defendant made aesthetic decisions and exercised general supervision over the work; which was insufficient as a matter of law. 
 
 

Brewer v Ross 
November 12, 2020 
Appellate Division, Second Department 

 
Plaintiff allegedly was injured after a scaffold collapsed at the home of the Neilson defendants. In November 2009, defendants decided to construct a detached two-story garage on their property. Mr. Neilson, a mechanic, made an informal bartering arrangement with defendant John Gloor, a carpenter, to secure his help building the garage. Gloor then arranged for plaintiff and several other laborers to help with the construction. On the day of the accident, a scaffold consisting of two 2-by-6 boards and a 24-foot aluminum plank was set up on the right side of the garage. Two conflicting accounts of how the accident occurred were presented at the trial. According to plaintiff, Nielson was operating a Bobcat in the garage; using it to lift plywood and other materials up to Gloor and others. While doing so, Nielson’s Bobcat allegedly struck the scaffold and caused it to collapse. According to the testimony of the defense witnesses, plaintiff was working on the second floor of the garage and jumped down approximately two feet onto the scaffold, causing one of the supports for the aluminum plank to break.   
 
During the trial, the trial court granted the defendants’ motion for judgment as a matter of law dismissing the Labor Law §§ 240(1), 241(6) and 200 claims asserted against them. The jury returned a verdict in favor of defendants on the common-law negligence action. The trial court then denied plaintiff’s motion, pursuant to CPLR 4404(a), to set aside the jury verdict as contrary to the weight of the evidence and for a new trial. 
 
Labor Law § 240(1) (MAS)
The Second Department reversed and held that different inferences could be drawn from the evidence on the issue of whether Nelson had authority, or exercised authority, to direct or control the work. Affording plaintiff every favorable inference, and considering the evidence in the light most favorable to the nonmoving party, there was a rational process by which a jury could find that defendants were not exempt from liability under the homeowners’ exemption to Labor Law §§ 240(1) and 241(6). 
 
PRACTICE POINT:  The critical question for determining whether the homeowners’ exemption applies under Labor Law §§ 240(1) and 241(6) is: “who had the authority, or exercised authority, to direct or control the injury-producing work?”  In other words, did the homeowner actually supervise, direct, or control the means and methods of the injury producing work.  Our advice is always the same, if they are working at a height on your 1- or 2-family home, leave immediately.  You can’t supervise, direct, or control when you are not there.  
 
Labor Law § 241(6) (TPW)
The Second Department reversed the grant of defendant’s motion for dismissal of the Labor Law causes of action pursuant to homeowner exemption.  In viewing the facts in the light most favorable to non-movant plaintiff, it was determined that different inferences could be drawn on the issue of whether defendants had authority , or exercised authority, to direct or control the work. 
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department reinstated the Labor Law § 200 and common-law negligence claims against the defendants. As for Labor Law § 200, it held the conflicting evidence demonstrated a question of fact as to whether defendant Nielsen had or exercised the authority to direct or control the work. Accordingly, the trial court should not have awarded Defendant’s judgment on that claim as a matter of law.   
 
As for the negligence claim, the Court found the jury verdict inconsistent as, in this case, the jury’s finding that Nielsen was negligent, but that his negligence was not a proximate cause of the action was logically impossible. Assuming that Nielson struck the scaffold with the Bobcat – which was the only theory of common-law negligence presented by the plaintiff – then, logically, it was impossible to find that such negligence was not a substantial factor in causing the accident. Because the issues of negligence and proximate cause were so inextricably interwoven as to make it logically impossible to find Nielson negligent without also finding proximate cause, plaintiff was entitled to have the jury verdict set aside the pursuant to CPLR 4404(a). 
 
 

Cioffi v Target Corp. 
November 12, 2020 
Appellate Division, Second Department 

 
Plaintiff, an employee of nonparty CTS, was performing work at a Target store as part of a larger renovation project. He was using a scissor lift to install a new paging system inside a stockroom. After he completed his work, he removed the scissor lift from the stockroom. However, he realized that he had left his tool pouch hanging from a pipe in the stockroom and went to retrieve it, using a ladder inside the stockroom that did not belong to CTS. Plaintiff testified that he decided to use that ladder, rather than the scissor lift, because the scissor lift was unwieldy to move, and he had already damaged the stockroom door with the unwieldy lift. In addition, it would have taken him longer to maneuver the lift in and out of the stockroom. Plaintiff also chose not to retrieve a ladder owned by CTS from a storage container located outside the store, since the store was closed at the time and the plaintiff would have had to find someone to let him out of the store in order to reach the storage container. While plaintiff was using the ladder inside the stockroom, it "kicked out" from under him, causing him to fall to the floor. Plaintiff obtained a jury verdict in his favor.    
 
The trial court granted defendants' motion pursuant to CPLR 4404(a) to set aside the jury verdict in favor of plaintiffs and for judgment as a matter of law dismissing the complaint. The judgment, upon the order, was in favor of defendants and against plaintiffs, dismissing the complaint. 
 
Labor Law § 240(1) (MAS)
The Second Department reversed, as plaintiff established a prima facie violation of the statute with his testimony that the ladder he was using “kicked out” from under him. The Court also disagreed with the trial court on the sole proximate cause issue, as the parties presenting conflicting evidence as to whether adequate safety devices – namely, the CTS ladders and/or the scissor lift – were available, whether plaintiff knew he was expected to use those devices, and, if so, whether he had a good reason for choosing to use the non-CTS ladder instead. Here, the court found a valid line of reasoning which could have led a rational jury to conclude that plaintiff was neither a recalcitrant worker, nor the sole proximate cause of his injuries. 
 
 

Garcia v Bleeker St. Gardens, LLC 
November 12, 2020 
Appellate Division, Second Department 

 
Plaintiff moved for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) on September 1, 2017, and the motion was made returnable on September 29, 2017, which was three days beyond the deadline fixed by the trial court in a prior so-ordered stipulation. Subsequently, plaintiff moved to extend the deadline for when his motion for summary judgment was to be made returnable. In an order dated April 20, 2018, the court, inter alia, denied plaintiff’s motion to extend the deadline, and denied, as untimely, his motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1). 
 
Labor Law § 240(1) (MAS)
The Second Department reversed the trial court with its exercise of discretion in declining to entertain plaintiff’s motion as he demonstrate good cause for his delay. Thus, the case was remitted back to the trial court to determine the merits of plaintiff’s motion under Labor Law § 240(1). 
 
PRACTICE POINT: Because courts have the discretion to consider late motions, I think it is more effective to attack the merits of your opponent’s arguments rather than any procedural defects, since that is how the court will analyze the motion.  That said, it is never a good idea to ignore any valid argument, even if the court is likely to disregard it. 
 
 

Mancellari v Church of Ascension 
November 18, 2020 
Appellate Division, Second Department 

 
Plaintiff was injured when he allegedly fell from an unguarded upper roof and landed 15-feet below on the lower roof area.  It is undisputed that plaintiff was not provided with any fall protection equipment and that there was no fixed barrier at the edge of the upper roof. Defendants questioned where the accident occurred, whether it was a height-related accident, and/or whether an accident actually happened. Evidence was presented that, at a worker's compensation hearing arising out of the subject occurrence, a Preserve witness, Chris Donaldson, testified that the accident was reported before it actually occurred. Mr. Donaldson testified that an individual (believed to be plaintiff's witness, Mr. Bregu) came to him at 9:15 a.m. about the occurrence. Mr. Donaldson went up the scaffold to investigate the occurrence with Preserve's job foreman, Andy Julien. Mr. Julien went to the upper roof and Mr. Donaldson went to the lower roof. Mr. Julien saw plaintiff at that time working on the roof. Mr. Julien reported back that there were no injured workers.  
 
The unknown individual then comes up to the upper roof and points to the lower roof where the plaintiff was lying down on the roof. Mr. Donaldson attempted to call 911 but somehow the Fire Department was already on their way.  Mr. Bregu, plaintiff’s alleged witness to the occurrence claims that he was on the street level when he saw plaintiff fall on the roof. However, according to Mr. Donaldson, you cannot see the rectory roof from the street level where plaintiff allegedly fell. Following a trial, the jury found that although defendants violated Labor Law § 240(1), the violation was not a substantial factor in causing the incident, and that plaintiff was the sole proximate cause of the accident. The trial court entered a judgment in favor of defendants and against plaintiff dismissing the complaint. 
 
Labor Law § 240(1) (MAS)
The Second Department affirmed the jury’s verdict as it cannot be said that the jury verdict could not have been reached on any fair interpretation of the evidence and the verdict was not contrary to the weight of the evidence.  
 
PRACTICE POINT:  The standard for overturning a jury verdict is difficult ,as the determination that a verdict is contrary to the weight of the evidence “is itself a factual determination based on the reviewing court’s conclusion that the original trier of fact has incorrectly assessed the evidence.” The jury verdict should not be set aside as contrary to the weight of the evidence unless “it could not have been reached on any fair interpretation of the evidence.” That said, we are not sure how this verdict stands as it seemingly contradicts the rule that you can’t have a violation of § 240(1) and no recovery because plaintiff was the sole proximate cause. 
 
 

Mejia v Cohn 
November 18, 2020 
Appellate Division, Second Department 

 
Plaintiff, an employee of the third-party defendant, the yeshiva, was in the process of removing several trash bags from an elevated storage area in a building owned by defendants, Karen Cohn and Josef Klein, and leased by the yeshiva. There was conflicting deposition testimony as to whether plaintiff was instructed to plaster and paint the elevated storage area after removing these bags. To remove the bags, plaintiff leaned a closed, wooden A-frame ladder against a wall underneath the elevated storage area. While standing five or six feet above the ground, plaintiff allegedly was reaching for one of the bags when the ladder slipped out from under him, causing him to fall and sustain personal injuries.  
 
The trial court granted plaintiff's motion for summary judgment on the Labor Law § 240(1) claim and denied defendants/third-party plaintiffs’ cross motion for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims. The order, cross-appealed from, granted plaintiff’s motion for summary judgment on the Labor Law § 240(1) claim, granted defendants/third-party plaintiffs’ motion for summary judgment on the third-party claim for contractual indemnification, denied third-party defendant’s cross motion for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claim, and denied third-party defendant’s cross-motion for summary judgment dismissing the third-party contractual indemnification claim. 
 
Labor Law § 240(1) (MAS)
The Second Department reversed and held plaintiff failed to demonstrate his prima facie entitlement to judgment as a matter of law on the issue of liability under Labor Law § 240(1). Plaintiff failed to establish that he was preparing the elevated storage area for painting at the time of his accident, as the deposition testimony left unresolved a triable issue of fact as to whether the elevated storage area and the area where plaintiff was working were to be painted around the time of plaintiff’s accident. For the same reasons, the Court affirmed denial of defendant’s cross-motions, as the conflicting testimony by the yeshiva failed to eliminate a triable issue of fact as to whether plaintiff’s injury occurred while he was performing work as part of the painting project at the school or as part of a non-enumerated activity. 
 
PRACTICE POINT: While “[p]ainting is a protected activity that need not [be] incidental to the other listed activities such as construction, repair, or alteration, to be covered by Labor Law § 240(1),” and acts performed in preparation of painting are enumerated activities under the statute, the issue here was plaintiff’s failure to establish that he was preparing the elevated storage area for painting at the time of his accident. 
 
Labor Law § 241(6) (TPW)
On the Labor Law § 241(6) cause of action, the Second Department affirmed denial of defendants’ Motions for Summary Judgment.  As a preliminary matter, it was noted that painting was confirmed to be a specifically enumerated activity covered under Industrial Code section 23-1.4[b][13].  However, the conflicting testimony submitted by the defendants, which included the plaintiff’s account of his supervisor’s instructions related to the elevated storage area, failed to eliminate a triable issue of fact as to whether the plaintiff’s actions, at the time of his injury, were an integral part of the painting process. 
 
Indemnity Issues in Labor Law (BFM)
The Second Department determined that the deposition testimony submitted by the defendants established that they were free from negligence and that a lease containing a comprehensive indemnification provision was in effect at the time of the accident.  Accordingly, the Court held that the defendants had established their prima facie entitlement to judgment as a matter of law on their third-party cause of action for contractual indemnification.  In opposition, the yeshiva failed to raise a triable issue of fact as to the enforceability of the indemnification provision. 
 
 

Luan Zholanji v 52 Wooster Holdings, LLC 
November 25, 2020 
Appellate Division, Second Department 


Plaintiff was a junior mechanic for a plumbing subcontractor at a construction site owned by 52 Wooster Holdings, LLC. Defendant, Foremost Contracting & Building, LLC, was the general contractor for the site. According to plaintiff, in order to retrieve tools stored inside the interior framing of the ceiling at the site, his supervisor instructed him to climb a closed A-frame ladder, positioned by his superiors, that was leaning against two metal wall frame studs at the construction site. Plaintiff alleged that he was near the top of the ladder when one of the metal wall frame studs that the ladder was leaning against detached from the steel tracking that it was affixed to, causing him and the ladder to fall. The trial court denied defendants’ motion for summary judgment dismissing the amended complaint and granted plaintiff’s cross-motion for summary judgment on Labor Law § 240(1) claim. 

Labor Law § 240(1) (MAS)
The Second Department affirmed summary judgment to plaintiff, as his affidavit and uncontroverted deposition testimony established the accident occurred because the ladder was not properly secured. The Court rejected defendants’ contention that plaintiff was negligent in using the A-frame ladder in a closed position, as it does not establish that he was the sole proximate cause of his injuries, especially where, as here, there was evidence that plaintiff was “following the example of his coworkers and acting with the tacit approval of his superior.”  
 
PRACTICE POINT:  The key fact here was that plaintiff fell from an unsecured ladder and that the failure to secure the ladder was a substantial factor in causing plaintiff’s injuries. 
 
Labor Law § 241(6) (TPW)
Defendants also moved for summary judgment dismissing the Labor Law § 241(6) cause of action.  Plaintiff elected not to oppose that portion of the motion but rather focused on their cross-motion on Labor Law § 241(6).  In a somewhat unique turn of events, the trial court denied the defendants’ motion.  The Second Department reversed and dismissed the Labor Law § 241(6) cause of action remarking that plaintiff failed to raise a triable issue of fact in opposition to the defendants’ prima facie showing that the Industrial Code provision relied upon by plaintiff was inapplicable.  
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed denial of defendants’ motion for summary judgment as to § 200 and negligence. It held defendants failed to meet their burden of establishing that they did not have actual or constructive notice of the alleged dangerous condition at the location, i.e., an inadequately secured ladder. 
 
 

Villada v 452 Fifth Owners, LLC 
November 25, 2020 
Appellate Division, Second Department 


Plaintiff allegedly was injured while working on a roof demolition project at property owned by defendant 452 Fifth. On the date of the accident, plaintiff was pulling a wheeled dumpster loaded with debris up a plywood ramp. According to plaintiff, the plywood moved, and the dumpster tipped over onto the plaintiff. The trial court denied the motion of 452 Fifth for summary judgment dismissing the Labor Law § 200 and common-law negligence claims. 
Labor Law § 240(1) (MAS)
The Second Department declined to hear plaintiff’s argument that the Court should search the record and award him summary judgment on his Labor Law § 240(1) claim because he could have raised that issue on his appeal, which was dismissed for lack of prosecution. 
 
PRACTICE POINT:  If you want to appeal an issue you lost at the trial court level, you must preserve all issues for appellate review, as the failure to timely do so will result in the court declining to consider your argument. 
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department reversed the trial court’s decision, which denied 452 Fifth Owners, LLC’s motion for summary judgment as to Labor Law § 200 and common-law negligence. The Court noted the two types of § 200 cases (hazardous condition and manner and methods of the work) and held that 452 Fifth met its burden on both theories of liability. To the extent the claims were based on the allegedly defective condition of the ramp, the court found that 452 Fifth demonstrated that it did not create or have actual or constructive notice of that condition. To the extent the claims were based on the method of the work, 452 Fifth demonstrated it did not have the authority to supervise or control the performance of the work. Of note, plaintiff did not oppose dismissal of those claims on the original motion, so the Court did not consider plaintiff’s arguments as to those claims on appeal. 
 
 

Eberhardt v G&J Constr., Inc. 
November 13, 2020 
Appellate Division, Fourth Department 

 
Plaintiff allegedly was injured as a result of an alleged trip- or slip-and-fall incident, which took place on a bridge on State Route 104, over Salt Road, in the Town of Webster. The State of New York was the owner of the bridge and sponsor of the project. The project entailed the repair and rehabilitation of 17 bridges in the Rochester area and was referred to as the “17 Bridges Project” (“Project”). Crane-Hogan was the General Contractor on the Project. Plaintiff, a union carpenter, was an employee of Crane-Hogan and assigned to work on the Project. Lawley was an insurance broker and risk management company, which Plaintiff claimed “acted as contractor and/or owner or agent of the owner, and as such exercised supervision and control over the construction site” where plaintiff was injured.  Plaintiff alleged that while he was cutting plywood, he tripped or slipped on scraps of wood and injured himself. The trial court granted Lawley’s motion to dismiss the Labor Law §§ 240(1), 241(6) and 200 claims against it, but denied its motion to dismiss the common-law negligence claim.   
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Fourth Department reversed the trial court’s decision and granted Lawley’s motion for summary judgment in its entirety. As for Labor Law § 200, it held that Lawley demonstrated that, as a subcontractor, it did not have the authority to supervise or control the work that caused the plaintiff's injury. As for common-law negligence, the court found that the documentary evidence belied plaintiff’s allegation that he was a third-party beneficiary of the contract between Lawley and his employer. This, along with the evidence of lack of control, was sufficient to grant Lawley’s motion and dismiss the negligence claims against it as a matter of law. 

 

Eberhardt v G&J Contr., Inc.  
November 13, 2020 
Appellate Division, Fourth Department 

 
Same facts as above. Defendant G&J was a subcontractor on the Project, having been hired by Crane-Hogan for the limited function of providing manpower for the installation of bridge rebar. Plaintiff alleged that while he was cutting plywood, he tripped or slipped on scraps of wood and injured himself. The trial court granted the motion of defendant G & J Contracting, Inc. for summary judgment dismissing the complaint against it. 
 
Labor Law § 241(6) (TPW)
The Fourth Department unanimously affirmed summary judgment on the Labor Law § 241(6) cause of action.  Defendant was a subcontractor on the project when plaintiff was allegedly injured, but did not have the authority to supervise or control the work which caused plaintiff's injury and, therefore, Labor Law § 241(6) properly was dismissed as a matter of law. 
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Fourth Department also affirmed the order granting G&J summary judgment as to Labor Law § 200 and common-law negligence.  As with Lawley, the Court found G&J demonstrated, as a subcontractor, it did not have the authority to supervise or control the work that caused the plaintiff’s injury, thus negating the Labor Law § 200 claim.  Moreover, the absence of direct control over the work or the manner in which it was performed, as well as proof that G&J did not create a hazardous condition, was sufficient to negate liability under a common-law negligence theory as well.  
 

Industrial Code Regulations - EDA

NYCRR § 23-1.21 – Protection in Construction and Excavation Operations; Ladders and ladderways; Extension ladders and section ladders. 

Regulation § 1.21(e)(2), which pertains to stepladders, contains specific commands that support a Labor Law § 241(6) cause of action. 

Przyborowski v A & M Cook, LLC, 120 AD3d 651 (2d Dept 2014)

Przyborowski held that (§ 23-1.21[e][2], which requires that “[s]uch bracing as may be necessary for rigidity shall be provided for every stepladder,” sufficiently specific to support Labor Law § 241[6] claim)

 

 

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