Labor Law Pointers - Volume X, No. 1

Volume X, No. 1 Wednesday, December 7, 2022
 Note from David R. Adams:
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.  While § 200 of the Labor Law, in many cases, doesn’t get the same attention as its brethren, it is of critical importance to virtually every Risk Transfer opportunity, as it established the existence, or absence, of active negligence on the part of a party or parties.  This obviously has an enormous impact on whichever type of Risk Transfer you are attempting.   Eric Bernhardt, our § 200 guru, has provided us with a quick update on the differences in the way “means and methods” cases are adjudicated in the various Departments below.   PRACTICE POINT: I don’t often get to do Practice Points for 200 cases, so I’m going to take advantage of this one, because it demonstrates a peculiar split in the Departments. As explained in Torres, the Second Department found a question of fact because, in that Department, Labor Law § 200 liability can be imposed on a contractor who “has” the authority to direct or control the work in a “means and methods” case.     In the Fourth Department, by contrast, to impose liability under Labor Law § 200 on a “means and methods” case, a Defendant must have “exercised” that authority and control. See Fischer v. State of New York, 291 A.D.2d 815(4th Dep’t 2002); Kvandal v. Westminister Presbyterian Soc., 254 A.D.2d 818, 678 N.Y.S.2d 185 (4th Dep’t 1998). The First Department also requires the “exercise” of direction and control. See Mooney v. BP/CG Center II, LLC, 179 A.D.3d 490 (1st Dep’t 2020); Lopez v. Dagan, 98 A.D.3d 436 (1st Dep’t 2012). Same for the Third Department. See Bombard v. Central Hudson Gas and Elec Co., 229 A.D.2d 837 (3d Dep’t 1996).     Significantly, I read Comes v. New York State Elec. And Gas Corp., 82 N.Y.2d 876 (1993), the seminal Court of Appeals case on Labor Law § 200, to require the exercise of supervisory control. There, the Court stated: “Where the alleged defect or dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under Labor Law § 200.”  See Comes, 82 N.Y.2d at 877. So, one has to wonder why the Second Department only looks at the existence of authority, rather than the exercise of that authority.    On to the video of the month.  Here we have a worker for a company hired by the building owner to rebuild a structure, but first the existing walls needed to be demolished.  As the worker, dutifully wearing his hard hat, takes down a wall, a portion of the building behind him comes down striking the worker and causing injury.  § 240(1)? When the § 240(1) claim is based on a falling object, as we have here, the initial question is, was the falling object one that was being hoisted, or one that required securing?  Here the wall which fell on the plaintiff was, in fact, a wall he intended to take down in due course.  Unfortunately for the plaintiff, and also for the owner, the plaintiff had not intended for the second wall to come down at that moment.  As such, the courts have consistently held that the remainder of the structure being demolished would be an object in need of securing.  Had the wall he was demolishing at that moment fallen the wrong way and struck the plaintiff, there would have been no requirement to secure the wall, as it would have been contrary to the desired result.  Of course, had the wall he was working on fallen onto him, and he was thus caused to fall from the foundation he was precariously standing on, and the fall was what caused his injury, then it would, again, be a § 240(1) case, as the plaintiff was not provided any safety device to prevent his fall. So, the fall from the foundation would be a violation where the plaintiff was a person so employed, engaged in a covered activity, and injured by an elevation differential.    In our second offering, the plaintiff is cleaning the windows of a school, as his employer was hired to clean the windows, and he was assigned the task.  As the truck he was provided by his employer did not have a ladder long enough to allow him to reach the windows in question, he decided against returning the three miles to the shop to get a longer ladder (there were a lot of them available there) but, rather to utilize his training as a mountaineer to get to the window, where he unfortunately fell.  § 240(1)? As always, let’s start with the prima facie case.  The plaintiff is a person so employed and thus, a valid plaintiff.  The owner of the school, a commercial entity, is a valid defendant.  The injury occurred due to an elevation difference.  Window washing is a bit trickier.  When window washing is commercial, as opposed to residential, it is a covered activity, and had it been residential, meaning not on a commercial building, it would not generally be a covered activity.  The sole proximate cause argument fails as the appropriate safety device, a long enough ladder, was not available to him on the work site, and the fact that it was available at the shop is insufficient.    That is it for this month, but as always, please feel free to reach out to us with any questions Labor Law or Risk-Transfer related, and have a great holiday season. 
David
  David R. Adams Hurwitz Fine P.C. The Liberty Building 424 Main Street, Suite 1300 Buffalo, New York 14202 Phone:  716.849.8900 Fax:  716.855.0874 Email:  [email protected] HF 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 send an e-mail to [email protected] or call the Editor/Labor Law Team Leader David R. Adams directly at (716) 849-8916. 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 subscribe. Medical & Nursing Home Liability Pointers:  Medical & Nursing Home Liability Pointers provides the latest news, developments, and analysis of recent court decisions impacting the medical and long-term care communities. 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. Contact Jody Briandi at [email protected] to subscribe.
Products Liability Pointers:   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 Chris Potenza at [email protected] to subscribe. 
Castillo v West End Towers LLC November 1, 2022 Appellate Division, First Department
  Plaintiff allegedly was injured when he fell off a ladder while cleaning windows inside a commercial space. The trial court denied plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim and granted defendants' motion for summary judgment dismissing the Labor Law §§ 240(1) claim.   Labor Law § 240(1) (MAS) The First Department unanimously affirmed the trial court’s decision because plaintiff was not engaged in “cleaning” within the meaning of Labor Law 240. Cleaning windows inside a commercial space is routine maintenance.   PRACTICE POINT: The four-factor standard established by the Court of Appeals in Soto for any claim of “cleaning” under Labor Law 240(1) is whether the task: (1) is routine, in the sense that it is the type of job that occurs on a daily, weekly, or other relatively-frequent and recurring basis as part of the ordinary maintenance and care of commercial premises; (2) requires neither specialized equipment or expertise, nor the unusual deployment of labor; (3) generally involved insignificant elevation risks comparable to those inherent in typical domestic or household cleaning; and (4) in light of the core purpose of the statutes to protect construction workers, is unrelated to any ongoing construction, renovation, painting, alteration or repair project. Whether the activity is “cleaning” is an issue for the court to decide after reviewing all the factors and the presence or absence of any one is not necessarily dispositive if, viewed in totality, the remaining considerations militate in favor of placing the task in one category or the other.    
Contreras v MDG Design & Constr. LLC November 1, 2022 Appellate Division, First Department
  Plaintiff was injured when a ceiling collapsed. The trial court denied plaintiffs' motion for partial summary judgment on the issue of liability on their Labor Law §§ 240 (1) and 241 (6) claims as premature.   Labor Law § 240(1) (MAS) The First Department unanimously affirmed the trial court’s decision to deny as premature plaintiff’s motion for partial summary judgment as there had only been limited exchange of documents, and none of the parties, including plaintiffs, had been deposed. This limited discovery precluded determination of dispositive issues, including how the accident occurred, whether the collapse of the ceiling was foreseeable, and whether the absence of a safety device was the proximate cause of plaintiff’s injuries.   PRACTICE POINT: Where, as here, there is insufficient evidence concerning how the accident occurred and discovery could aid in establishing what happened, it is premature for the trial court to determine summary judgment.    
Polonia v 14 Sutton Tenants Corp. November 1, 2022 Appellate Division, First Department
  Plaintiff, while walking on a sidewalk bridge erected at the corner of the site, was allegedly injured. According to plaintiff, there was a height differential of about two feet between the segment of the bridge on Sutton Place and the segment on East 56th Street, and as he was walking along the Sutton Place segment toward the 56th Street segment, he tripped on a wooden plank that was part of the sidewalk bridge flooring. There was no dispute that the plank was not defective and was properly installed.   The trial court denied plaintiff's motion for summary judgment on his Labor Law §§ 240(1) and 241(6) claims against CCM, granted CCM's motion for summary judgment dismissing plaintiff's Labor Law § 200 and negligence claims as against it and its cross-motion for summary judgment dismissing the §§ 240(1), and 241(6) claims as against it and granted 14 Sutton's cross-motion for summary judgment dismissing the §§ 240(1) and 241(6) claims as against it.   Labor Law § 240(1) (MAS) The First Department unanimously affirmed the trial court’s decision as 14 Sutton and CCM both established that plaintiff’s incident was not caused by the height differential between the two portions of the sidewalk bridge. Although plaintiff states there used to be a ramp where the two portions of the sidewalk bridge met, he admittedly tripped on the wooden plank before reaching the gap. The Court noted that plaintiff failed to explain how a ramp would have made his incident any less likely or that his incident occurred as a direct result of there being no ramp where the two portions of the sidewalk bridge met.   PRACTICE POINT: This case is a perfect example of an accident that occurs at a height but does not involve a height-related hazard subject to the statute. A good question to consider is, If the accident was the result of a significant elevation differential, then what safety device would have prevented the injuries from occurring?   Labor Law § 241(6) (TPW) The First Department affirmed the dismissal of the Labor Law § 241(6) causes of action as against defendants 14 Sutton and CCM.  Industrial Code (12 NYCRR) §§ 23-1.8(b)(2) and 23-5.1(j)(1) were inapplicable to the circumstances as those sections apply to the "outside edge," "the ends," or "open sides" of sidewalk sheds and scaffolds, not to the interior sections of a sidewalk bridge. Further, although plaintiff claimed that he fell because of a lack of fall protection between the two segments of the sidewalk bridge, the record revealed plaintiff did not fall off the sidewalk bridge but tripped on a wooden plank and fell from one side of the bridge to the other. Specifically, plaintiff testified at his deposition that a plywood barrier, approximately eight feet tall, stood on the exterior side of the sidewalk bridge to prevent workers from falling and that a handrail ran along the length of the sidewalk bridge.   Labor Law § 200 and Common-Law Negligence (ESB) The First Department affirmed dismissal of the Labor Law 200 and negligence causes of action against CCM.  In this “hazardous condition” case, it found that CCM neither created nor had actual or constructive notice of any dangerous condition. Further, even if this case were a “means and methods” case, CCM would still not be liable, as it did not actually exercise supervisory control over the injury-producing work.    
Cotroneo v Van Wagner Sign Erectors, LLC November 3, 2022 Appellate Division, First Department
  Plaintiff was allegedly injured when the lid of a gang box hit his head because the struts of the gang box, were missing. The trial court granted defendants' motions for summary judgment dismissing the Labor Law § 240(1) claim and denied plaintiff's motion for summary judgment as to liability on the §§ 240(1) and Labor Law § 241(6) claims.   Labor Law § 240(1) (MAS) The First Department affirmed the trial court’s decision granting defendants’ motion for summary judgment dismissing the Labor Law 240(1) claim because the gang box lid that fell on plaintiff was not a material that required hoisting or securing. The struts of the gang box, which were missing, did not constitute a safety device contemplated by the statute because they were not meant to lessen a gravity-related risk related to the securing of a large load or the hoisting of construction materials. Therefore, the Court held the gang box lid did not fit within the statute’s parameters, but instead constituted a routine workplace risk.   To the extent the Van Wagner/Outfront defendants contend they are not proper Labor Law defendants, the record demonstrates that they were retained by Vornado Realty Trust, the owner’s manager, to act as general contractor on the project, and were agents of the owner with authority to retain plaintiff’s employer as a subcontractor and to obtain work permits.   PRACTICE POINT: The single decisive under Labor Law § 240(1) is whether plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential. Here, the court found that the gang box lid was not a safety device under the statute, but rather a common hazard at a construction site.   Labor Law § 241(6) (TPW) The First Department unanimously modified the trial court’s decision to grant plaintiff's motion for summary judgment as to liability on his Labor Law § 241(6) claim. Plaintiff made out a prima facie case of liability through deposition testimony establishing that the struts were missing and through the affidavit of his expert, which established that the struts were safety devices to ensure that the lid opened slowly and stayed open. Plaintiff was not required to show freedom from comparative negligence. Defendants failed to raise an issue of fact as to whether plaintiff was responsible for damaging the struts by ordering the workers to drill out the locks. Defendants' theory was based in speculation and unsupported by the record indicating that drilling out the locks could affect the struts.    
Musse v Triborough Bridge & Tunnel Auth. November 3, 2022 Appellate Division, First Department
  PANYNJ owned the Brooklyn Marine Terminal and leased a portion of the space to nonparty RHCT under a written operating agreement. Plaintiff's employer, Tutor Perini Corporation, hired RHCT in accordance with a purchase order to offload and store material at the terminal space for a construction project Tutor Perini was undertaking at the Verrazzano Narrows Bridge, owned by defendant TBTA. Plaintiff, a welder who was working on materials for installation on the bridge, was injured as she was moving a scaffold in the terminal when one of the legs of the scaffold became stuck in a depression on the floor. Plaintiff testified that there was debris, oil, and grease on the floor, and that as she tried to pull the scaffold out of the depression, she slipped and was injured.  The trial court granted PANYNJ’s motion for summary judgment dismissing the Labor Law § 241(6) claim against it.   Labor Law § 241(6) (TPW) The First Department unanimously reversed the trial court’s grant of summary judgment to PANYNJ based upon issues of fact. PANYNJ, as owner, retained control over defendant RHCT’s lease and use of the subject property including oversight of any sublicense of the property. As a result, the evidence created a sufficient nexus between PANYNJ and the project, and thus between PANYNJ and plaintiff, to support an imposition of liability under Labor Law § 241(6). Plaintiff's task of grinding bevels on the deck panels to be installed on the bridge also falls under the Labor Law because the protections of the statute extend to areas where materials or equipment are being prepared to be used in construction. Plaintiff's testimony that there was debris, grease, and oil on the floor when she slipped raised issues of fact as to the applicability of Industrial Code provisions 12 NYCRR 23-1.7(d) and (e)(2), which require work areas to be kept free of debris and slipping hazards.    
Otero v 635 Owner LLC November 3, 2022 Appellate Division, First Department
  Plaintiff was drilling metal tracks onto a wall when the Baker scaffold on which he was standing overturned, causing him to fall and sustain injuries. 635 owned the building and SL Green was 635's managing agent. Infor leased the premises from 635 and retained JRM as the general contractor to perform construction work. JRM, in turn, retained Montec and nonparty Premier Builders, Inc., plaintiff's employer, as subcontractors to perform various aspects of the work.   The trial court granted plaintiff's motion for partial summary judgment on Labor Law § 240(1) claim against 635 and JRM and denied the motion against Infor, granted Infor's motion for summary judgment dismissing the § 240 (1) claim against it, granted Montec's motion for summary judgment dismissing the Labor Law §§ 240 (1) and 200 and common-law negligence claims against it, and denied 635 and JRM's motion for summary judgment on their crossclaims and third-party claims for contractual indemnification, common-law indemnification, and contribution against Montec.   Labor Law § 240(1) (MAS) The First Department affirmed the trial court’s decision granting plaintiff summary judgment against 635 and JRM because the record did not raise an issue of fact as to whether plaintiff was the sole proximate cause of the accident. Since the evidence established that plaintiff was not provided an adequate safety device to perform his work, any negligence on his part amounted to, at most, comparative negligence, which is not a defense to a Labor Law § 240(1) claim.   However, the Court reinstated the § 240(1) claim against Infor as the trial court incorrectly concluded that Infor was not a proper Labor Law defendant. Although Infor leased the premises from 365, it may still be held liable as an “owner” under the statute because it contracted for the construction work being performed at the time of plaintiff’s accident. For the same reasons that plaintiff is entitled to partial summary judgment against 365 and JMR, the Court held plaintiff’s motion against Infor should have been granted, and Infor’s motion for summary judgment dismissing the claim against it should be denied.   As there was no evidence that Montecc had been delegated with the authority to supervise and control the injury-producing work so as to render it liable as a statutory agent, the Court held Montec was entitled to dismissal of the § 240(1) claim against it.   PRACTICE POINT: We analyze every Labor Law using the same four elements: (1) appropriate plaintiff; (2) appropriate defendant; (3) appropriate project; and (4) elevation-related/gravity-related risk. Here, Infor could not establish the second criterion because Infor could not prove that it did not have the authority to supervise, direct, or control the injury-producing work. Additionally, an injured worker can never be the sole proximate cause of his or her injuries if no adequate safety devices were provided to perform the injury-producing work in the first place.   Labor Law § 200 and Common-Law Negligence (ESB) The First Department held that Montec was entitled to dismissal of the Labor Law § 200 claims against it as it was not a proper Labor Law defendant, in that there was no evidence it had been delegated the authority to supervise and control the injury producing-work so as to render it liable as a statutory agent. As a further argument, JRM claimed that Montec could be held liable on a common-law negligence theory for having launched a force or instrument of harm under Espinal v Melville Snow Contrs. 98 N.Y.2d 136, 140 (2002) for assembling and providing plaintiff with an unstable scaffold for use for his work.  However, that argument was raised for the first time on appeal, so it could not be considered by the Court.  Even if it were considered, there was no evidence that Montec assembled or owned the Baker scaffold that plaintiff used.   Indemnity Issues in Labor Law (BFM) Due to the lack of evidence of Montec's negligence, the Court granted their cross-motion for summary judgment dismissing 635 and JRM's cross claims and third-party claims for common-law indemnification and contribution against it. The Court also granted Montec's motion for summary judgment dismissing 635 and JRM's cross claim and third-party claim for contractual indemnification against it. The Court noted that JRM's subcontract with Montec requires Montec to indemnify 635 and JRM from and against any claims “arising out of and in connection with injuries . . . resulting from performance of [Montec's] Work.”  As there was no evidence that Montec provided the Baker scaffold that plaintiff used or that plaintiff's accident was attributable to Montec's fault, the indemnification provision was not triggered.    
Duque v 50 Clinton Prop. Owner LLC November 10, 2022 Appellate Division, First Department
  Plaintiff was employed by a cleaning company, hired by defendant owner, to perform cleaning of newly constructed apartments before they were turned over to tenants. Plaintiff played no role in the construction work. On the day of the accident, she was cleaning a refrigerator that had been left on its delivery dolly when it fell upon her, causing her injury. The trial court denied plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim and granted defendant's motion for summary judgment dismissing that claim   Labor Law § 240(1) (MAS) The First Department unanimously affirmed the trial court’s decision dismissing plaintiff’s § 240(1) claim because, applying the factors set forth in Soto v J. Crew, Inc., 21 NY3d 562, 568-569 (2013), plaintiff was not engaged in “cleaning” within the meaning of the statute at the time of her accident.   PRACTICE POINT: The four-factor test from the Court of Appeals in Soto is applied in favor of the defense against because cleaning a refrigerator that subsequently falls is not the type of work connected to the inherently dangerous work of construction, excavation, or demolition work.    
Fuentes v YJL Broadway Hotel, LLC November 22, 2022 Appellate Division, First Department
  Plaintiff was allegedly injured when a beam fell on him as he was securing a scaffold on which his coworker was standing to strip concrete formwork beams from the ceiling.  The trial court denied plaintiff's motion for summary judgment on liability on his Labor Law § 240(1) claim.    Labor Law § 240(1) (MAS) The First Department unanimously reversed the trial court’s decision, on the law, and granted the motion. Plaintiff’s testimony, along with the unrebutted affidavit of his expert concluding that the beam was not properly secured, established his entitled to summary judgment on liability under Labor Law § 240(1) claim. The Court noted that plaintiff’s inability to explain how the beam fell did not preclude summary judgment in his favor.   PRACTICE POINT: The type of injury-producing work being performed – securing a scaffold on which his coworker was standing to strip concrete framework beams from the ceiling - 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, plaintiff was entitled to partial summary judgment.    
Martinez v Kingston 541, LLC November 22, 2022 Appellate Division, First Department
  Plaintiff, a metal worker, was allegedly injured when he fell after stepping on a wooden floor joist while trying to access the basement, and although he was wearing a harness, he was not tied off, because there was no place to tie off. The trial court granted plaintiff's motion for summary judgment on the issue of liability on his Labor Law § 240(1) claim, and denied Midwood’s and Busa’s motion for summary judgment dismissing that claim, denied Midwood's motion for summary judgment on its crossclaims against Busa for contractual and common-law indemnification and for breach of contract for failure to procure insurance and for summary judgment dismissing Busa's common-law indemnification cross claim against it and denied Busa's motion for summary judgment dismissing the cross claims against it.    Labor Law § 240(1) (MAS) The First Department unanimously affirmed the trial court’s decision granting plaintiff summary judgment as he submitted his deposition showing that he fell after stepping on a wooden floor joist while trying to access the basement and that although he was wearing a harness, he was not tied off, because there was no place to tie off. The Court held plaintiff was not recalcitrant for failing to use his safety device because defendants failed to refute plaintiff’s testimony that there was no place for him to tie off the harness and his work was not stationary thereby preventing him from being tied off. Even if he was partially at fault for failing to tie off his harness, his comparative negligence is not a defense to a Labor Law § 240(1) claim.   The Court also held that because plaintiff was following the directions of his supervisors to walk on the joists and to not move the plywood, plaintiff cannot be the sole proximate cause of his injuries. He also cannot be the sole proximate cause of his injuries for failing to use an interior staircase to access the basement instead of the ladder because it was undisputed that the entrance to the staircase was locked and blocked by construction materials.   PRACTICE POINT: Recall the four elements of the sole proximate cause defense: (1) plaintiff had an appropriate safety device, which was readily available to him or her; (2) plaintiff was instructed to use and/or knew he or she was expected to use it; (3) he or she failed to use or misused the safety device for no good reason; and (4) had the readily available safety device been properly used, the injuries would not have occurred. Here, plaintiff had a sufficient explanation for not being tied off and was merely following his supervisor's instructions when the accident occurred.   Indemnity Issues in Labor Law (BFM) The First Department affirmed the trial court’s denial of Midwood's motion seeking summary judgment on its cross claims. As to its crossclaim for contractual indemnification, pursuant to the contract between Busa, as contractor, and Midwood, as owner, Midwood was required to show not only that plaintiff's claim was work related, but that Busa or its subcontractors were negligent, which Midwood failed to argue in its motion papers. As Midwood failed to address its common-law indemnification and failure to procure insurance cross claims against Busa in its motion papers, the trial court properly denied summary judgment on those claims.    
Fernandez v Taping Expert, Inc. November 2, 2022 Appellate Division, Second Department
  While painting a stairwell at premises owned and operated by defendants, plaintiff allegedly was injured when he fell from a makeshift scaffold. The trial court entered a judgment, upon a jury verdict in favor of defendants, and upon the denial of 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, is in favor of those defendants and against plaintiff dismissing the complaint insofar as asserted against those defendants.   Labor Law § 240(1) (MAS) The Second Department affirmed the trial court’s decision as two experts testified that plaintiff’s injuries were not caused by his fall from the scaffold but were instead degenerative in nature, and plaintiff’s expert conceded that the injuries could have been caused by a degenerative condition. Since the verdict in defendants’ favor was based on a fair interpretation of the evidence, the trial court properly denied plaintiff’s motion to set aside the jury verdict as contrary to the weight of the evidence and for a new trial.   The Court rejected plaintiff’s contention that the trial court should have granted a judgment in his favor as unpreserved for appellate review since he failed to move under CPLR § 4401 for judgment as a matter of law at the close of the evidence, thereby implicitly conceding that the issue was for the trier of fact to determine.   PRACTICE POINT: The standard to set aside a jury verdict in favor of a defendant as contrary to the weight of the evidence requires the evidence preponderates so heavily in plaintiff’s favor that it could not have been reached on any fair interpretation of the evidence. When a verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view. “It is for the jury to make determinations as to the credibility of the witnesses, and great deference in this regard is accorded to the jury, which had the opportunity to see and hear the witnesses”.    
Hernandez v High Rise Bldg. & Design, Inc. November 2, 2022 Appellate Division, Second Department
  Hernandez was allegedly injured when he fell from a scaffold while performing sheet rock installation at a construction site owned by JJB Retail, which had retained High Rise and SSG Group to renovate the premises. Plaintiff also alleged that he was hired to work on the project by a High Rise employee, who paid Hernandez weekly in cash, and supervised his work for one month before the accident. The trial court denied JJB Retail’s motion for summary judgment dismissing the complaint against it.   Labor Law § 240(1) (MAS) The Second Department affirmed the trial court’s denial of JJB Retail’s motion as they failed to meet their burden of affirmatively establishing its judgment as a matter of law. The affidavits from the supervisors for High Rise and the nonparty electrical subcontractor failed to explain how they arrived at their conclusions, particularly since neither attested to even being present at the site on the day of the alleged accident. Moreover, although the High Rise supervisor asserted that no one from High Rise hired or paid plaintiff in any form, he did not mention the specific High Rise employee identified by plaintiff as the person who hired and paid him to work on the project.   In any event, the supervisor’s averments merely conflicted with plaintiff’s version of the facts, whose deposition transcript was included with the moving papers, JJB Retail’s own submissions thus failed to eliminate all triable issues of fact, precluding summary judgment.     PRACTICE POINT: To invoke the extraordinary protections afforded by the Labor Law and to come within the special class for whose benefit liability is imposed on contractors, owners, and their agents, an injured worker must demonstrate both that he or she was permitted or suffered to work on a building or structure and that he or she was hired by someone, be it owner, contractor or their agent. Where there are conflicting versions of the events regarding one of those elements (e.g., whether plaintiff was a volunteer or being paid and if so, by whom?), summary judgment is not warranted.   Labor Law § 241(6) (TPW) The Second Department affirmed the decision of the trial court denying JJB Retail's motion for summary judgment based on triable issues of fact as to whether plaintiff demonstrated that he was both permitted or suffered to work on a building or structure and that he was hired by someone, be it owner, contractor or their agent as required under the Labor Law.   Labor Law § 200 and Common-Law Negligence (ESB) The Second Department affirmed denial on the same basis as for §§ 240(1) and 241(6).    
Torres v Accumanage, LLC November 2, 2022 Appellate Division, Second Department
  Accumanage was the construction manager on the construction of a house on premises owned by Brewer. Plaintiff was employed by NJM, a framing subcontractor. At the time of the accident, plaintiff was working on the exterior of a detached garage on the premises. According to plaintiff, he was walking along a scaffold surrounding the garage when the platform upon which he was standing suddenly collapsed. However, the president of NJM and a member of Accumanage were informed that plaintiff was on a ladder at the time of the accident.   The trial court denied plaintiff's motion for summary judgment on Labor Law § 240(1) claim against Accumanage, denied Accumangage’s motion for summary judgment dismissing the Labor Law §§ 200 and 241(6) claims against it and granted the third-party defendant's motion for summary judgment dismissing the third-party claim for contractual indemnification.   Labor Law § 240(1) (MAS) The Second Department affirmed the trial court’s decision denying plaintiff’s motion. While 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”, the Court found a triable issue of fact as to whether plaintiff fell when a scaffold plank unexpectedly collapsed, as he testified, or whether the accident occurred while plaintiff was on a ladder, as the representative of NJM and Accumanagae testified. Further, the President of NJM testified that he inspected the ladder that plaintiff allegedly fell from after the accident and it appeared to be a “[f]ine working ladder”.   PRACTICE POINT: To make a prima showing of liability under Labor Law § 240(1), a plaintiff must establish that the statute was violated, and that the violation was a proximate cause of his or her injuries. Where, as here, there is conflicting testimony as to how the accident occurred, an injured worker is not entitled to summary judgment under Labor Law § 240(1).   Labor Law § 241(6) (TPW) The Second Department reversed the denial of that branch of Accumanage's motion for summary judgment dismissing the claim for an alleged violation of Labor Law § 241(6).  Accumanage made a prima facie showing that 12 NYCRR § 23-1.22(c) was not factually applicable. That section provides, inter alia, that a platform used as a working area "shall be provided with a floor of planking at least two inches thick full size" and that a platform "more than seven feet above the ground" must be provided with a safety railing. Regardless of whether the subject scaffold constituted a "platform" within the meaning of section 23-1.22(c), Accumanage provided the plaintiff's own testimony that the wooden planks were two inches thick. Further, Accumanage established that the lack of safety rails was not the proximate cause of the plaintiff's injury as the plaintiff testified that he was caused to fall when the wooden platform boards cracked and broke. In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff abandoned his reliance upon any other provisions of the Industrial Code by failing to address those provisions in his brief on appeal.   Labor Law § 200 and Common-Law Negligence (ESB) The Second Department held that the trial court properly denied the motion seeking dismissal of the Labor Law 200 claim. Although Accumanage offered evidence that it lacked the authority to control or supervise NJM’s work, Plaintiff was able to raise questions of fact regarding whether it had such authority.  For example, pursuant to the Construction Management Agreement, Accumanage's contract with the owners of the premises, Accumanage was required to supervise and direct the day-to-day activities and work at the site. The CMA also required it to ensure that all materials furnished by the subcontractors were appropriate and that all of the subcontractors' work was appropriate. Further, Accumanage was responsible for managing site safety and "for initiating, maintaining and supervising all safety precautions, procedures and programs during the Project." Pursuant to Accumanage's subcontract with NJM, Accumanage was to supervise NJM in all phases of its work. Finally, the subcontract provided that Accumanage had the authority to reject any of NJM's work or materials that did not conform to the plans and specifications for the project.   PRACTICE POINT I don’t often get to do Practice Points for 200 cases, so I’m going to take advantage of this one, because it demonstrates a peculiar split in the Departments.  As explained in Torres, the Second Department found a question of fact because, in that Department, Labor Law 200 liability can be imposed on a contractor merely for having the authority to direct or control the work.  Interestingly, however, a defendant can demonstrate entitlement to summary judgment by demonstrating it did not, in fact, exercise any supervision or control over the means and methods of the work. See Jarnutowskibelow.   In the Fourth Department, by contrast, to impose liability under Labor Law 200 on a “means and methods” case, a Defendant must have “exercised” that authority and control.  See Fischer v. State of New York, 291 A.D.2d 815(4th Dep’t 2002); Kvandal v. Westminister Presbyterian Soc., 254 A.D.2d 818, 678 N.Y.S.2d 185 (4th Dep’t 1998).  The First Department also requires the “exercise” of direction and control.  See Polonia, above; Mooney v. BP/CG Center II, LLC, 179 A.D.3d 490 (1st Dep’t 2020); Lopez v. Dagan, 98 A.D.3d 436 (1st Dep’t 2012).  Same for the Third Department.  See Bombard v. Central Hudson Gas and Elec Co., 229 A.D.2d 837 (3d Dep’t 1996).    Significantly, I read Comes v. New York State Elec. And Gas Corp., 82 N.Y.2d 876 (1993), the seminal Court of Appeals case on Labor Law 200, to require the exercise of supervisory control. There, the Court stated: “Where the alleged defect or dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under Labor Law § 200.”  See Comes, 82 N.Y.2d at 877. So, one has to wonder why the Second Department only looks at the existence of authority, rather than the exercise of that authority.   Indemnity Issues in Labor Law (BFM) The subject contractual indemnification provision required NJM to indemnify Accumanage for any claims “directly or indirectly caused by [NJM's] breach of the Contract, its negligence, gross negligence, intentional misconduct, nonfeasance or inaction in the performance of the Contract and/or [NJM's] trade.”  The scope of NJM's work as set forth in its contract with Accumanage was limited to framing and exterior trim for the house and there was no mention of the garage.  Any changes to the scope of the contract were required to be made in a written change order, and there was no evidence that any such change order was issued.  In reversing the trial court, the Second Department held that NJM failed to eliminate a triable issue of fact as to whether the parties waived the contractual requirement for written modifications of the scope of work as the evidence demonstrated that Accumanage requested NJM to perform work on the exterior of the garage and that NJM executed such work.  Furthermore, there was no dispute that NJM's work on the garage was within the scope of its “trade,” which would potentially bring the plaintiff's accident within the scope of the subject contractual indemnification provision.  NJM failed to eliminate a triable issue of fact as to whether it had completed its work on the house prior to being hired to work on the garage such that the contract had expired, or whether NJM had yet to complete its original scope of work pursuant to the contract at the time it began working on the garage such that the contract remained in effect at the time of the accident.     As such, that branch of NJM's motion which was for summary judgment dismissing the third-party cause of action for contractual indemnification should have been denied because NJM failed to eliminate all triable issues of fact as to whether the accident was caused by its “negligence, gross negligence, intentional misconduct, nonfeasance or inaction in the performance of the Contract and/or [NJM's] trade,” pursuant to the terms of the subject indemnification provision.    
Carranza v JCL Homes, Inc. November 16, 2022 Appellate Division, Second Department
  Plaintiff was allegedly injured while demolishing a bathroom wall in a house owned by JCL Homes, Inc. According to the plaintiff, he was standing on the second step of a three-foot ladder and was using a hammer to strike the wall in front of him when a large piece of cement board dropped on him and the ladder, causing both plaintiff and the ladder to fall. The trial court granted defendants' motion for summary judgment dismissing the Labor Law §§ 240(1), 200, and the common-law negligence claims and denied plaintiff's cross motion for summary judgment under §§ 240(1) and 241(6).   Labor Law § 240(1) (MAS) The Second Department affirmed the trial court’s decision as defendants submitted evidence that the cement board on which plaintiff was working was not an “object … being hoisted or secured” or an object that “required securing for the purposes of the undertaking”. Moreover, defendants demonstrated that the cement board did not fall due to the “absence or inadequacy of an enumerated safety device”. In opposition, the Court held that plaintiff failed to raise a triable issue of fact.   PRACTICE POINT: Labor Law § 240(1) “does not apply in situations in which a hoisting or securing device of the type enumerated in the statute would not be necessary or expected”. Here, the cement board was not in the process of being hoisted or secured and did not require securing for the purpose of the injured worker’s demolition work.   Labor Law § 241(6) (TPW) The Second Department affirmed the trial court’s denial of plaintiff's cross-motion for summary judgment on the issue of liability under Labor Law § 241(6). Plaintiff relied solely upon an alleged violation of 12 NYCRR § 23-3.3(c), which provides that “[d]uring hand demolition operations, continuing inspections shall be made by designated persons as the work progresses to detect any hazards to any person resulting from weakened or deteriorated floors or walls or from loosened material”. The Court held that plaintiff failed to demonstrate that the accident arose from structural instability caused by the progress of demolition rather than from the actual performance of the work. Accordingly, plaintiff failed to eliminate triable issues of fact as to whether this Industrial Code provision was violated.   Labor Law § 200 and Common-Law Negligence (ESB) The Second Department affirmed dismissal of Labor Law § 200 and common-law negligence claims. In this “means and methods” case, the Court found that defendants demonstrated they did not have authority to supervise or control the method or manner in which plaintiff's work was performed, and plaintiff raised no triable question of fact.    
Jarnutowski v City of Long Beach November 16, 2022 Appellate Division, Second Department
  Plaintiff allegedly was injured at a construction site inside a City of Long Beach Sanitation Department building in November 2016. He was working on the wooden beams to demolish the roof of a standalone bathroom that was situated inside the defendant's building. The bathroom roof he worked on was eight to eight and a half (8 - 8 '/2') feet above the ground. Rather than keeping him at an elevation, one of the wooden beams collapsed. Plaintiff alleged that he was not provided any safety devices to prevent his fall into the opening.  The trial court denied plaintiff's cross-motion for summary judgment on the Labor Law § 240(1) claim against the City of Long Beach and denied the City of Long Beach’s motion for summary judgment dismissing the complaint.   Labor Law § 240(1) (MAS) The Second Department affirmed the trial court’s decision as the evidence submitted by the City and plaintiff failed to eliminate triable issues of fact as to the manner in which the accident occurred, whether adequate safety devices were available at the works site, whether the absence of an adequate safety device was a proximate cause of the accident, and whether plaintiff’s actions were the sole proximate cause of his injuries.   PRACTICE POINT: We’ve said it already a few times, but where there are questions of fact surrounding the way the accident occurred, then neither party is entitled to summary judgment.   Labor Law § 241(6) (TPW) The Second Department affirmed the trial court’s denial of that portion of the motion of the City for summary judgment on the Labor Law § 241(6) claim. As the Court noted, Labor Law § 241(6) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide reasonable and adequate protection and safety for workers, and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor. The trial court properly denied that branch of the City’s motion predicated upon violations of 12 NYCRR § 23-1.7(b)(l) and 12 NYCRR § 23-3.3(b) and (c) as the City failed to make a prima facie showing of its entitlement to judgment as a matter of law, that branch of its motion was properly denied, regardless of the sufficiency of the plaintiff's opposition papers.   Labor Law § 200 and Common-Law Negligence (ESB) The Second Department reversed the trial court’s decision denying the motion as to Labor Law 200 and common-law negligence.  In this “means and methods” case, the City established that it did not exercise any supervision or control over the method or manner in which the plaintiff's work was performed, and Plaintiff failed to raise a triable question of fact in opposition.    
Smith v MDA Consulting Engrs., PLLC November 10, 2022 Appellate Division, Fourth Department
  Plaintiff was allegedly injured after falling off of a foundation wall while erecting a salt storage shed for the Town. Defendant had contracted with the Town to assist in preparing a bid package, solicit bids, assist the Town in obtaining grant money from the State, and review the submitted bids for the salt storage shed project. The trial court denied defendant’s motion for summary judgment.   Labor Law § 240(1) (MAS) The Fourth Department unanimously reversed the trial court and dismissed the complaint as defendant was not an owner or a subcontractor, nor an agent of the Town. Pursuant to the express terms of the contract between the Town and the nonparty contractor – i.e., plaintiff’s employer – as well as the terms of the contract between the Town and defendant, defendant had no control over the means and methods of the performance of the work by the contractor, and had no control over safety precautions for the workers at the construction site.   PRACTICE POINT: Unless a defendant has supervisory control and authority over the injury-producing work, there is no statutory agency conferring liability under the Labor Law.   Labor Law § 241(6) (TPW) For those same reasons underlying the Labor Law 240(1) claim, the Fourth Department held defendant established that it did not actually direct or control the work that brought about plaintiff's injuries and therefore, was not a proper Labor Law defendant.   Labor Law § 200 and Common-Law Negligence (ESB) The Fourth Department held it was error to deny the motion as to Labor Law § 200 and common-law negligence, as defendant established that it did not actually direct or control the work that brought about plaintiff’s injuries, and plaintiff raised no triable questions of fact regarding that issue.    
Green v Evergreen Family Ltd. Partnership November 18, 2022 Appellate Division, Fourth Department
  Plaintiff  was allegedly injured when he fell from an A-frame ladder while working on a 10-foot-high car wash overhead door. The trial court granted in part and denied in part the motion of defendants for summary judgment and the motion of plaintiff for partial summary judgment.   Labor Law § 240(1) (MAS) The majority affirmed the trial court’s decision as the evidence submitted raises triable issues of fact whether plaintiff was engaged in the replacement of overhead door parts that occurred due to normal wear and tear or whether the work being performed by plaintiff at the time of the accident was necessary to restore the proper functioning of an otherwise inoperable overhead door.   The majority also rejected defendants’ expert affidavit in support of their sole proximate cause defense because the expert offered no opinion on whether the eight-foot A-frame ladder was adequate to allow plaintiff to safely complete his assigned task at the time of the accident without standing on the top two steps. Plaintiff’s expert affidavit opined that the ladder was inadequate for plaintiff to perform his work and defendant failed to address that contention in reply.   The majority further determined since there is no evidence in the record to contradict the opinion of plaintiff’s expert, plaintiff was entitled to summary judgment dismissing the sole proximate cause affirmative defense. The dissed by Justices Peradotto and NeMoyer would deny plaintiff summary judgment because he failed to meet his initial burden of establishing as a matter of law that he was not the sole proximate cause of the accident.   PRACTICE POINT: The dissent is worth reading because we agree that plaintiff’s testimony contradicted his expert’s opinion in that plaintiff thought the provided eight-foot ladder was adequate to safely perform the assigned work on the 10-foot-high door. Therefore, such conflicting evidence should have raised triable issues of fact with respect to whether an adequate safety device was provided.    
Stoneham v Joseph Barsuk, Inc. November 18, 2022 Appellate Division, Fourth Department
  Plaintiff was allegedly injured while he was working on a flatbed trailer owned by defendant. At the time of the accident, plaintiff had utilized a front-end loader to lift the flatbed trailer and was replacing a leaking air tank on the trailer's brake system. The front-end loader lifting the flatbed trailer rolled backward, dropping the trailer on top of plaintiff. The trial court denied plaintiff's motion for summary judgment and granted the cross motions of defendant David J. Barsuk for summary judgment dismissing the Labor Law § 240 (1) claim against him.   Labor Law § 240(1) (MAS) The Fourth Department affirmed the trial court’s decision that plaintiff was not engaged in a protected activity under the statute. Even assuming, arguendo, that the replacement of the air tank is appropriately considered a repair, the Court held that the narrow view of the statutory elements offered by plaintiffs is “too simple, and [accepting it] would lead to an expansion of section 240(1) liability that [prior Labor Law] cases do not support and that … the Legislature never intended”. Inasmuch as plaintiff was engaged in his normal occupation of repairing vehicles, a task not a part of any construction project or any renovation or alteration to the recycling plant itself, he was not engaged in a protected activity under the statute.   Justices Winslow’s and Bannister’s dissent would modify the trial court’s decision by reinstating the § 240(1) because the flatbed trailer upon which plaintiff was working fits “squarely within” the definition of a “structure” and defendant’s submissions failed to eliminate all triable issues of fact whether plaintiff was engaged in routine maintenance or a repair of the flatbed trailer.   PRACTICE POINT: Whether work is routine maintenance - which falls outside the protections of Labor Law § 240(1) - or a repair, which is a protected activity, is usually a fact-driven issue that depends on whether the item being worked on was inoperable or malfunctioning prior to the commencement of the injury-producing work, and whether the work involved the replacement of components damaged by normal wear and tear. Work consisting of remedying a common problem is generally considered routine maintenance.   A 3-2 decision also buys plaintiff a free trip to the Court of Appeals, so we will continue to monitor this one as further developments occur.
 
 New York Industrial Code Regulations (EDA)
12 NYCRR 23-1.24(a)(2)(iii) Crawling board lifeline. A lifeline in compliance with this Part (rule) shall be strung beside each crawling board. Regulation § 23–1.24(a)(2)(iii), specifying the use of lifelines for crawling boards, is likely sufficiently specific to support a Labor Law § 241(6) claim. Regulation § 23–1.24(a) and (b) governing the use of safety devices on roofs having slopes steeper than one inch in four inches requires plaintiff to submit competent proof establishing slope of roof from which fell to obtain summary judgment (Amirr v Calcagno Const. Co., 257 AD2d 585, 684 NYS2d 280 [2d Dept. 1999]).   
Labor Law Pointers   Editor David R. Adams Associate Editor Eric S. Bernhardt Associate Editor Brian F. Mark Associate Editor Timothy P. Welch Associate Editor Marc A. Schulz Associate Editor Eric D. Andrew Labor Law Team
David R. Adams, Team Leader [email protected]  
Dan D. Kohane [email protected]                                                        Michael F. Perley [email protected] Eric S. Bernhardt [email protected] Marc A. Schulz [email protected] Jesse L. Siegel [email protected]
Steven E. Peiper [email protected] Brian F. Mark [email protected] Timothy P. Welch [email protected] Eric D. Andrew [email protected]  
Michael J. Dischley
Hurwitz Fine P.C.   Buffalo 1300 Liberty Building, Buffalo, NY 14202 Phone: 716-849-8900, Fax: 716-855-0874               Long Island 575 Broadhollow Road, Melville, NY 11747 Phone: 631-465-0700, Fax: 631-465-0313 Albany Phone:  518-641-0398 Additional Offices Albion  |  Amherst  |  Hartford, CT  |  Niagara Falls  |  Rochester  |  Utica Hurwitz Fine P.C. is a full-service law firm providing legal services throughout the State of New York   www.hurwitzfine.com © 2022, Hurwitz Fine P.C. All Rights Reserved
In some jurisdictions, newsletters such as this may be considered Attorney Advertising.

Newsletter Sign Up