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Labor Law Pointers - Volume X, No. 10

 

Labor Law Pointers

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

Volume X, No. 10
Wednesday, September 1, 2021

From the Editor:


Do you have a situation?  We love situations.  We love the Labor Law and all its strange twists and turns.  We also love helping our brother and sister attorneys and claims professionals in finding a solution to their situations.  This is what we call a win-win. Give us a call, send an email, drop by; we truly enjoy solving complex Labor Law and Risk Transfer issues. 
 
As summer winds down and fall looms, the courts are getting back to work; however, this month is a bit slim on the pickings.  We have reinstated our monthly supplementary article and webinar.  This month the topic is Labor Law Section 200, its importance, and the two types of cases: means and methods or premises.  We will be presenting the webinar on Tuesday, September 21 at noon.  The links are here for the article and to sign up for the webinar.
 
The first two pictures below were taken in my yard.  We had some trees that needed to be taken down, as did our neighbors. You have all heard me say that you need to leave when anyone is working on your house and using even a small ladder, to ensure that you get the single or double homeowner exemption.  Why then, am I out watching and not concerned, as the workers, cutting down and trimming trees on my property and for my benefit, work at dizzying heights, even, as you will notice, leaving the relative safety of the lift bucket and into the tree without any fall protection of any type.  I would like to point out that he was actually holding on to the tree with one hand and leaning way out using the chain saw with one hand, truly impressive, if not the safest thing I have ever seen.  I may actually have been considered to be directing the work as I pointed out branches that I wanted cut down; yet, I was without concern for a §240(1) claim.  Why was that?
 




The reason for my calm viewing is that § 240(1) requires that the work be done on a building or structure, and a tree is neither.  To be considered a structure it must be made of component parts and a tree is not.  If the tree trimming had been done to enable other construction to be done, then it may well have been considered a part of the project and the protection of the statute may have been afforded.
 
In this next photo, we have a worker hired to replace a broken window in a condo owned by an individual who lived there. The building common area is owned by the condominium entity.  The window is in the person’s living room and not a common area.  The board the worker is sitting on to do the job is wedged under a door to an exit located in the common area.  When another resident opens the door in the common area the plaintiff falls to the ground below and become injured does that create a viable § 240(1) claim?
 

 
As the owner of the property where the work was being done was a single unit and used for residential purposes, he or she is protected from a §240(1) claim by the single homeowner exemption a long as he does not supervise, direct, or control the means and methods of the work.  The condominium board which owns the common areas does not have the same protection, so they would be a valid defendant, in theory; but here, as the only connection to the work was that the board the plaintiff chose to uses as a “safety device” extended into the common areas, they would likely be dismissed from the case, as not only was the work not being done to their property, but it was not for their benefit either.
 
In our next offering, we have a contractor, with his OSHA 10, called by the landlord to see why the roof on his rental property was leaking and to repair it.  The property is a single-family house rented to his son.  To reach the area of the leak, the contractor, not one to quit and walk all the way to the truck to get the 28’ ladder there on the rack, takes the picnic table and balances it on the picnic benches.  Unfortunately, that was not high enough, so he puts a few cinder blocks on top of the table and tries again.  The table is too small to allow him to open the small ladder he has close by, so he decides to lean it against the house with 2 legs and the other legs just hanging there.  What could conceivably go wrong you may ask?  Well, the ladder surprisingly slips, and the movement causes the plaintiff to fall and become injured, so he sues the owner of the home.  § 240(1) case?


Let’s start with the single-family home exemption.  Even though the house is rented to a family member, it is still considered to be used for commercial purposes and thus the exemption is not appropriate.  The project, repairing a leak, is a covered activity, the plaintiff is a person so employed, and the injury results from the application of gravity to the plaintiff’s body.  Prima face case of § 240(1).  We then need to analyze the sole proximate cause defense.  The plaintiff did have 1) an appropriate safety device (the 28’ ladder) which was 2) available on site which he 4) failed to use or misused and 5) he misused of failed to use for no good reason.  You will note that I left out element 3), where he was instructed to use or knew to use the appropriate and available safety device.  Every member of our Labor Law team has taken the OSHA 10 course.  “What does that have to do with this case?” you may be asking, well as we have taken the course, we know how the plaintiff was trained and we know he violated several elements of his training.  First, he was trained always to use a tall enough ladder, and how to determine how tall that would be, based on the angle of the ladder, which he did not.  Second, he was trained never to use an A-frame ladder while closed.  I do not remember the part about never putting a ladder on cinder blocks, which are on a picnic table, which is on the picnic benches, but I would guess that this also is a no-no in the manual.  Thus, the sole proximate cause defense should work here.
 
Here we have an excavator operator who was hired to demolish a building, when he was swallowed by the ground in quite dramatic fashion.  § 240(1) case?  Just click on the icon below to see the video.
 
Demo Video

As the collapse of the structure was not the failure of a safety device per se, as in a ladder or scaffold falling, the crux of the issue is whether or not the collapse was foreseeable.  In situations like this expert opinion usually is essential in the determination.
 
Have a great September and see you in October. 

 
 
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 subscribe.

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 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. 
 
August 4, 2021
Appellate Division, Second Department
 
Plaintiff, a carpenter for nonparty Chase Construction, was performing renovation work in a first-floor apartment of a residential building, which was owned and managed by defendants. Plaintiff tripped over a bucket of compound in the middle of the room while stepping back to look at a window he was framing. The trial court granted defendants’ motion for summary judgment dismissing the Labor Law §§ 241(6), 200, and common-law negligence claims.
 
Labor Law § 241(6) (TPW)
The Second Department affirmed dismissal of the Labor Law § 241(6) claim. Plaintiff alleged a violation of Industrial Code regulation (12 NYCRR) 23-1.7(e)(2), which requires the “parts of floors, platforms and similar areas where persons work or pass” be kept free from accumulations of dirt, debris, scattered tools, materials, and sharp projections “insofar as may be consistent with the work being performed.” Defendants demonstrated that regulation 1.7(e)(2) was inapplicable because the bucket of compound over which plaintiff allegedly fell was among the tools that were positioned for and “consistent with” the work being performed and was not “scattered” within the meaning of that regulation. Further, plaintiff was unable to establish that 1.7(e)(1) applied to the facts of this case as plaintiff was not injured in a “passageway.”
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed dismissal of the Labor Law § 200 and common-law negligence claims. The evidence demonstrated that, at the time of the accident, and in the days prior, decisions regarding placing plaintiff’s carpentry tools and the painting tools in the middle of the room where the work was being done, including the bucket over which plaintiff allegedly fell, were the responsibility of plaintiff and his employer. The bucket itself was one of the materials being used at the time of the subject accident. Accordingly, this was a “means and methods” case and defendants met their burden of demonstrating lack of authority to supervise or control plaintiff's work to subject them to liability.
 
 
Navarra v Hannon
August 4, 2021
Appellate Division, Second Department
 
Hannon’s single-family house was rendered uninhabitable by Hurricane Sandy. Hannon hired the Sabke defendants to restore electrical service to the property, who completed the work on the second floor and agreed to return after the house was raised further off the ground. Hannon hired nonparty JMBOC, plaintiff’s employer, to complete structural repairs to the property. Plaintiff, a laborer, was directed by the project foreman to move several steel columns, which were six feet in length and weighed “about a couple hundred pounds each,” and pass them over a seven- or eight-foot-tall concrete wall to the foreman, who was inside the interior of the structure.
 
As plaintiff lifted one of the columns over the wall, he lost his footing and slipped, which caused his right hand to become pinned between the steel column and the wall. The trial court granted the motions of the Petruzza defendants, the Sabke defendants, and Maura Hannon for summary judgment dismissing the Labor Law §§ 241(6), 200, and common-law negligence claims.
 
Labor Law § 241(6) (TPW)
The Second Department affirmed dismissal of the Labor Law § 241(6) claim as against Petruzza and Sabke based on deposition testimony and other evidence submitted demonstrating that they were not the owners, general contractors, or agents of the general contractor or the owner with regard to plaintiff’s work. Critically, Petruzza was never at the property while plaintiff was working there. Petruzza’s role was merely to complete the paperwork for two building permits with the Town of Hempstead, which were unrelated to plaintiff’s work at the property. Sabke, who was hired directly by Hannon, was only responsible for certain electrical repairs, which were completed in 2012 and 2014 and not at the time of plaintiff’s accident.
 
Hannon was deemed entitled to the homeowner exemption to liability under § 241(6), as Hannon was the owner of a single-family home who contracted for the performance of work on the premises, but who do not direct or control the work.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed dismissal of the Labor Law § 200 and common-law negligence claims. In this claim arising from the manner in which the work was performed, regarding the Petruzza Defendants, the Court found that they did not have the authority to supervise or control the method or manner of the work. The Court also found the same with regard to the Sabke defendants. Defendant Hannon similarly did not have the authority to supervise or control the method or manner of the work.
 
 
Alberici v Gold Medal Gymnastics
August 11, 2021
Appellate Division, Second Department
 
Nonparty, Letter Perfect Graphics, was hired to manufacture and install an electrical channel letter sign on the exterior of a building owned by Parker and leased to Gold Medal. The letters and other components making up the sign were two- to three-feet tall and made of plexiglass and aluminum. Plaintiff and a coworker were to install the letters and other components on a metal soffit located on the front of the building by drilling holes in the face of the soffit. Plaintiff then entered the soffit by placing a fiberglass ladder under an access door located on the bottom of the soffit. The coworker placed each letter on the face of the soffit, passing bolts through the newly drilled holes, while plaintiff on the other side secured each letter by placing washers and nuts on the bolts and connected each letter to a low voltage wire. The accident occurred during the installation of the letter “M”. Plaintiff was inside the soffit, kneeling on a piece of lumber and was assisting the coworker in passing the bolts through the face of the soffit, when Plaintiff heard a “brief pop” behind him and a six- or eight-foot section of the soffit gave way, causing him to fall to the concrete surface fifteen feet below.
 
The trial court granted Gold Medal’s summary judgment motion for dismissal of the Labor Law §§ 240(1) and 241(6) claims against it and granted Parker’s summary judgment motion for dismissal of the §§ 240(1), 241(6), 200, and common-law negligence claims.
 
Labor Law § 240(1) (MAS)
The Second Department reversed as Gold Medal failed to establish, prima facie, that plaintiff was not engaged in “altering” the building at the time of the accident and failed to establish, prima facie, that plaintiff was not engaged in “construction” within the meaning of Labor Law § 241(6). Accordingly, the trial court should have denied Gold Medal’s motion for summary judgment on the Labor Law §§ 240(1) and 241(6) claims, regardless of the sufficiency of plaintiff’s opposition papers. For the same reasons, the court held the trial court also erred in granting Parker’s motion for summary judgment on those same claims.
 
PRACTICE POINT: “Altering” under Labor Law § 240(1) involves “making a significant physical change to the configuration or composition of the building or structure.” Whether a physical change is significant depends on its effect on the physical structure. Standing on a ladder to install a sign has been deemed the type of work contemplated by Labor Law § 240(1). Therefore, we find it is curious that plaintiff did not cross-move for summary judgment since the underlying facts subjected plaintiff to the risks inherent in an elevated work site and his injuries were proximately caused by the failure of the ladder.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department reversed the trial court’s decision granting summary judgment as to the Labor Law § 200 and common-law negligence claims. The Court held that the case involved both categories of § 200 claims, and noted, where, as here, an accident is alleged to involve defects in both the premises and the equipment used at the work site, the property owner moving for summary judgment is obligated to address the proof applicable to both liability standards.  Parker, however, failed to demonstrate that it lacked actual notice of the allegedly defective condition. Accordingly, the Court held Parker was not entitled to summary judgment.
 
 
Grieve v MCRT Northeast Constr., LLC
August 18, 2021
Appellate Division, Second Department
 
Plaintiff, a plumber, allegedly fell from a ladder while installing pipe hangers for a main trunk line in the ceiling of a mechanical room at a construction site. The trial court granted the motions of defendants/third-party plaintiffs and third-party defendants for summary judgment dismissing the Labor Law § 240(1) claim and denied plaintiffs’ cross-motion for partial summary judgment on liability under that claim.
 
Labor Law § 240(1) (MAS)
The Second Department reversed, finding there exist triable issues of fact regarding causation because the deposition testimony of the safety specialist at the property, Taylor, conflicted with that of plaintiff’s coworker, Carroll, regarding proximate cause. Carroll described the positioning of the ladder subsequent to plaintiff’s fall, indicating that one leg of the ladder was situated in a hole in the floor. Taylor testified that he heard plaintiff say to the paramedics that he became dizzy and fell, which was evidence that plaintiff fell as a result becoming dizzy rather than because the ladder shifted into a hole in the floor. Therefore, neither defendants, third-party defendants, nor plaintiffs met their burden on their respective motions for summary judgment.
 
Although plaintiff objected on the grounds of inadmissible hearsay, the Court properly considered the statement contained in plaintiff’s medical records regarding the cause of his fall because it was inconsistent with his deposition testimony and plaintiff was the source of the statement. Therefore, Taylor’s testimony regarding what he heard plaintiff say was a party admission.
 
PRACTICE POINT: Hearsay is only admissible if it falls within an exception to the hearsay rule. One of the hearsay exceptions is party admissions. In New York, an admission is an act or oral or written statement made by a party prior to trial that is inconsistent with one of the relevant material facts the party seeks to establish. It is critical to note that the statement must be against the interest of the person making the statement.
 
 
Ivasyuk v Raglan
August 18, 2021
Appellate Division, Second Department
 
Plaintiff, an employee of nonparty Elmar, was injured while performing work at property under renovation. While installing overhead wires owned by Raglan, plaintiff fell from a six-foot A-frame ladder, owned by Elmar. Raglan hired Red Oak to act as a general contractor for the renovation project, which encompassed the conversion of the property into a single-family residence. Prior to the accident, Raglan terminated Red Oak as the general contractor.
 
Raglan exchanged emails with an employee of M & I whereby the M & I employee agreed to apply for a permit with the New York City Department of Buildings (DOB) on behalf of Raglan. A DOB permit was issued to M & I regarding the subject property two months before the incident. However, after Red Oak was terminated, Elmar’s principal began coordinating the schedules of the different trades. The trial court denied M & I’s motion for summary judgment.
 
Labor Law § 240(1) (MAS)
The Second Department reversed the trial court’s decision denying the motion because M & I established its prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that plaintiff released it from any claims regarding the accident (see Beys Specality, Inc. V Euro Constr. Servs., Inc., 125 AD3d 911, 912 [2d Dept 2015]). Here, the deposition testimony demonstrated that the terms of the release were explained to plaintiff before he executed the document. The Court also held the trial court erred in determining that CPLR § 2101(b) precluded consideration of the release because the release was written in English.
 
PRACTICE POINT: A valid release typically constitutes a complete bar to an action on a claim which is the subject of the release, but may be invalidated for any of the traditional bases for setting aside written agreements (e.g., fraud, duress, illegality, or mutual mistake). “Although a defendant has the initial burden of establishing that it has been released from any claims, a signed release ‘shifts the burden of going forward … to the [plaintiff] to show that there has been fraud, duress or some other fact which will be sufficient to void the release’” (Centro Empresarial Cempresa S.A. v America Movil, S.A.B. de C.V., 17 NY3d 269, 276 [2011]).
 
 
Pimenta v 1504 Cia, LLC
August 18, 2021
Appellate Division, Second Department
 
Plaintiff, then a 42-year-old construction worker, was injured on the job while bending over to pick up some materials from the floor when an aluminum ladder fell over and hit him in the back, causing his arms and knees to strike the ground. Plaintiff alleged injuries to the cervical and lumbar regions of his spine and to his knees, which rendered him unable to perform construction work. The trial court determined that plaintiff was entitled to summary judgment on his Labor Law § 240(1) claim. At a jury trial on the issue of damages, plaintiff presented evidence that he underwent various medical treatments, including spinal injections, surgeries to the cervical and lumbar regions of his spine, including the placement of stabilizing hardware, implantation of a spinal cord stimulator, cortisone injections to his knee, and arthroscopic knee surgery, as well as receiving physical therapy. Following the trial, the jury awarded $2,000,000 for past pain and suffering, $15,000,000 for future pain and suffering over a period of 33.3 years, and $1,804,535 for future lost earnings over a period of 21 years.
 
The trial court granted defendants' motion pursuant to CPLR § 4404(a) to set aside a jury verdict on the damages for past and future pain and suffering as excessive to the extent of directing a new trial on the issue of damages for past and future pain and suffering unless plaintiff stipulated to reduce the damages from $2,000,000 to $1,000,000 for past pain and suffering, and from $15,000,000 to $2,250,000 for future pain and suffering, and to set aside the future lost earnings.
 
Labor Law § 240(1) (MAS)
The Second Department affirmed as the reduced amounts by the trial court do not deviate materially from what would be reasonable compensation, considering the nature and the extent of the injuries sustained. Contrary to defendants’ contention, the jury’s award of future lost earnings based upon the assumption that, but for his injury, plaintiff would have worked until the age of 67, was reasonable and supported by the record.
 
PRACTICE POINT: Courts measure the reasonableness of a jury’s award against relevant precedent of comparable cases, which guides and enlightens them with respect to determining whether a verdict in each case constitutes reasonable compensation. The party claiming lost earnings has the burden of proving the amount of actual past earnings with reasonable certainty, by means of tax returns or other documentation. Unsubstantiated testimony, without documentation, is insufficient to establish lost earnings. Damage awards for past and future medical expenses must also be supported by competent evidence, which establishes the need for, and the cost of, medical care.
 
 
Estick v Myrtil
August 25, 2021
Appellate Division, Second Department
 
Plaintiff, a cable installer, was allegedly injured when he fell from a ladder he brought to the premises, and which was placed by plaintiff and his co-workers, while installing cable services for a tenant at defendant’s property. The owner and defendants did not supply tools or equipment, and did not supervise, direct or control plaintiff’s work. Nor did they know that plaintiff would be working at the premises. The trial court granted summary judgment to defendants and dismissed the Labor Law §§ 240(1), 241(6), 200, and negligence claims.
 
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s determination that defendant established, prima facie, her entitlement to judgment as a matter of law dismissing the Labor Law §§ 240(1) and 241(6) claims because defendant’s submissions demonstrated that the requisite nexus between defendant and plaintiff’s work did not exist. In opposition, the Court held plaintiff failed to raise a triable issue of fact.
 
PRACTICE POINT: This case reminds us of the four criteria of a labor law claim: appropriate plaintiff, appropriate defendant, appropriate project and elevation related/gravity related risk. Here, the first criteria was not met since plaintiff was not working on a “building or structure” and was not hired by defendant; thus, he was not a valid labor law plaintiff.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed dismissal of the Labor Law § 200 claim; however, it refused to consider defendant’s argument that the trial court erred in denying that branch of her motion which was for summary judgment dismissing the common-law negligence claim, as that argument was not properly before the Court, since defendant did not cross-appeal on that issue.
 
 
Uhl v D'Onofrio Gen. Contrs., Corp.
August 25, 2021
Appellate Division, Second Department
 
Plaintiff, an elevator inspector employed by the New York City Housing Authority, was injured when he fell from one end of a catwalk connecting the roofs of two buildings in a housing development undergoing roof work. Pro-Metal was the general contractor and STV was the construction manager for the roof project. Pro-Metal retained subcontractor, D’Onofrio, to perform the installation of “spray foam” that allegedly resulted in the creation of static electricity. Plaintiff was about to descend some stairs from the catwalk to a roof when he touched a metal railing, felt a “shock,” and then stepped down and fell where a portion of the stairs was missing.
 
D’Onofrio commenced a third-party action against Bayer, the manufacturer of the spray foam used by D’Onofrio, for indemnification. The trial court denied defendant/third-party plaintiff’s motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims against it, and granted, without prejudice, the third-party defendant’s motion for summary judgment dismissing the third-party complaint.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department reversed the trial court, which denied summary judgment as to Labor Law § 200 and common-law negligence. In this “dangerous condition on the worksite” case, defendant established that it did not have authority to supervise or control the area of the work site where the accident occurred, and it did not create a dangerous condition which caused the accident. Instead, it demonstrated the dangerous condition was created by another entity.  Because plaintiff and codefendants failed to raise triable issues of fact, the Court held the motion should have been granted.
 
Indemnity Issues in Labor Law (BFM)
The Second Department affirmed the trial court’s finding that, a “manufacturer who places a defective product on the market that causes injury may be liable for the ensuing injuries" (Reece v J.D. Posillico, Inc., 164 AD3d 1285, 1287 [2d Dept 2018]). Despte Bayer’s prima facie showing that the spray foam was not a defective product, the Court held that D’Onofrio failed to raise a triable issue of fact (id. at 1288-1289).
 
 
Harris v Tesmer Bldrs., Inc.
August 26, 2021
Appellate Division, Fourth Department
 
Plaintiff fell from a ladder while working on a construction project. Plaintiff's employer had been hired by Tesmer Builders, the property owner. At the time of the accident, plaintiff was descending a ladder that lacked the appropriate feet. Plaintiff allegedly fell from the ladder when it slid to the side and caught on a portion of the building frame he had been working on, throwing him from the ladder. The trial court granted plaintiff’s motion of partial summary judgment on his Labor Law §§ 240(1) and 241(6) claims.
 
Labor Law § 240(1) (MAS)
The Fourth Department unanimously affirmed, rejecting Tesmer Builders’ contention that plaintiff was the sole proximate cause of the accident. Plaintiff met his initial burden of establishing that the ladder was “not so placed … as to give proper protection to [him],” and the burden thus shifted to defendant to raise a triable issue of fact whether plaintiff’s “own conduct, rather than any violation of Labor Law 240(1), was the sole proximate cause of [his] accident”. The Court held that defendant failed to meet that burden.
 
PRACTICE POINT: In order to raise an issue of fact whether an injured worker’s own conduct was the sole proximate cause of the accident, defendant is required to establish that 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. Here, defendant could not establish the ladder was an adequate safety device when it’s feet were defective.
 
Labor Law § 241(6) (TPW)
The Fourth Department unanimously affirmed summary judgment in favor of plaintiff on the issue of liability under Labor Law § 241(6), finding that plaintiff met his initial burden of establishing a violation of 23-1.21(b)(3)(iv) due to a flaw or defect of material which caused the ladder’s failure and defendant failed to raise an issue of fact as to the condition of the ladder and whether other adequate ladders or safety devices were present and provided for plaintiff’s use.
 
 
Miller v Rerob, LLC
August 26, 2021
Appellate Division, Fourth Department
 
Plaintiff, a laborer employed by third-party defendant J & E, rigged a metal “Z sheet" to a crane and signaled the crane operator to hoist the Z sheet from its position on top of a stack of such sheets, even though a 600-pound, metal “corner piece” was lying unsecured on top of the Z sheet. As the crane was hoisting the Z sheet, the corner piece fell and struck plaintiff in the head. The trial court (1) granted plaintiff's motion for summary judgment on his Labor Law § 240(1) claim; (2) granted the motions of the Rerob defendants and Cortland Pump seeking summary judgment dismissing the Labor Law § 200 and common-law negligence claims against them; (3) denied the Rerob defendants’ motion for summary judgment on their crossclaim for contractual indemnification against Cortland Pump and on their third-party contractual indemnification claim against J & E; and (4) denied Cortland Pump’s motion seeking summary judgment on its crossclaim for contractual indemnity against J & E.
 
Labor Law § 240(1) (MAS)
The Fourth Department unanimously affirmed summary judgment to plaintiff, who submitted affidavits from experts who opined that the corner piece should have been removed with a crane immediately after the stack of Z sheets was offloaded from the flatbed truck that was used to transport the materials to the site, and before moving any individual Z sheet, and the Rerob defendants and Cortland Pump failed to raise an issue of fact  At most, the evidence submitted in opposition to plaintiff’s motion established contributory negligence on the part of plaintiff.
 
PRACTICE POINT: Defendants failed to rebut plaintiff’s expert proof establishing that the corner piece should have been removed with the crane before moving the individual sheets. Labor Law § 240(1) requires defendants to provide safety devices that will “give proper protection” to the employee and because the crane proved inadequate to secure the sheet from falling, the statute was violated in this case. Either the crane itself or the manner in which it was used to move the sheets was inadequate and failed to provide plaintiff with proper protection, but under either scenario, summary judgment is appropriate.
 
Labor Law § 241(6) (TPW)
The Fourth Department held that as plaintiff was entitled to partial summary judgment under Labor Law § 240(1), a determination on the Labor Law § 241 (6) claim was academic.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Fourth Department also held that, because Plaintiff was entitled to partial summary judgment under Labor Law § 240(1), the appeals concerning § 200 and common-law negligence also were academic.

Indemnity Issues in Labor Law (BFM)
The Fourth Department agreed with the Rerob defendants that they were entitled to summary judgment on their crossclaim for contractual indemnity against Cortland Pump, finding they did not supervise or control the injury-producing work. However, the Court held that neither the Rerob defendants nor Cortland Pump established that the accident is attributable to the negligence of J & E or any entity for which it is vicariously liable, since the mater subcontract agreement required J & E to indemnify “only to the extent attributable to [its] negligence … or any entity for which it is legally responsible or vicariously liable”.
 
 New York Industrial Code Regulations (EDA)
12 NYCRR 23-1.22(b)(1)— Runways and ramps.

All runways and ramps shall be substantially constructed and securely braced and supported. Runways and ramps constructed for use by motor trucks or heavier vehicles shall be not less than 12 feet wide for single lane traffic or 24 feet wide for two lane traffic. Such runways and ramps shall be provided with timber curbs not less than 10 inches by 10 inches, full size timber, placed parallel to, and secured to the sides of such runways and ramps. The flooring of such runways and ramps shall be positively secured against movement and constructed of planking at least three inches thick full size or metal of equivalent strength.
Regulation § 1.22(b)(1), which pertains to runways and ramps constructed of non-embankment materials such as earth, gravel or, stone, pursuant to subsection (a), contains specific commands sufficient to support a Labor Law § 241(6) cause of action. Davies held that this regulation, “which is a regulation that sets forth specific standards of conduct sufficient to support a Labor Law § 241 (6) cause of action.”

Huther held that, “[a]lthough the first sentence of this regulation refers to “all runways and ramps,” reading 23–1.22(b)(1) in it entirety, and viewing the regulation in the context of the succeeding subdivisions of 23–1.22, it is clear that this provision is intended to apply to runways and ramps used by trucks and other heavy vehicles.”

This will be expanded upon in the Torkel decision, next month.
 
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]
 

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

Phone:  518-641-0398

Additional Offices

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Hurwitz & Fine, P.C. is a full-service law firm providing legal services
throughout the State of New York
 
www.hurwitzfine.com
© 2021, Hurwitz & Fine, P.C. All Rights Reserved
 
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Copyright © 2021, Hurwitz & Fine, P.C., All rights reserved.

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