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Labor Law Pointers - Volume X, No. 11

 
 

Labor Law Pointers

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

Volume X, No. 11
Wednesday, October 6, 2021

 

From the Editor:

Do you have a situation?  We love situations.  Is it a Labor Law or Risk Transfer situation? Even better; those are our favorites.
 
This month’s edition is going to need to be brief on the introduction, as I am on trial, just finished jury selection, and am working on finalizing my opening and preparing for witnesses.  That said, like the post office, nothing stops the latest edition from being delivered.
 
When I mentioned to the team that I may have to skip putting in photos this month, it was greeted with a resounding negative response; so, photos you shall have. 
 
In this photo, the plaintiff is installing brackets from a ladder.  It is not your typical ladder, as the plaintiff is working from a rope ladder.  Plaintiff’s employer was hired to install the brackets by the owner of the building and supplied the ladder.  When the plaintiff falls from the ladder, is it a § 240(1) case?
 

 
Given that there is not an expert on Earth who would opine that this rope ladder was an appropriate safety device, it seems clear that the plaintiff will have a valid § 240(1) case. 
 
Sticking with the theme of using ropes as safety devices, here, the plaintiff is painting a commercial building for his employer, who was hired by the owner.  When his co-worker lets the line slip, and he falls to the ground, do we have a § 240(1) case?


 
A person is not a safety device in virtually all circumstances and, thus, the plaintiff was not provided with an adequate safety device. So, summary judgment on § 240(1) seems to be the likely outcome.
 
In our third offering this month, the owner of the mall where the tree is located hires a company to trim the trees.  The plaintiff, an employee of the company, does not have a tall enough ladder to reach the top of the tree to trim it, and has his co-employees hold one side of the ladder up, to allow him to reach the top.  When they drop the ladder, causing it to move and the plaintiff to fall, is this a § 240(1) case?


 
We established above that a person is not a safety device, and therefore, no appropriate safety device was provided for the plaintiff.  The ladder moved causing the plaintiff to fall and be injured. End of story?  NO!  Trimming a tree is NOT a covered activity.  A tree is organic. Therefore, it is not a building or structure, so the protections of § 240(1) do not extend to the plaintiff.  Summary judgment for the defense.
 
Hope you are all having a great beginning to fall. Please feel free to call with any questions or concerns.  Hopefully my trial will be done by November, and I will have more tidbits of information designed to increase your knowledge of the Labor Law and Risk Transfer at that time.  
 

David

 
David R. Adams
Hurwitz & Fine, P.C.
424 Main Street
Suite 1300 Liberty Building
Buffalo, New York 14202
Phone:  716.849.8900
Direct:  716.849.8916
Fax:  716.855.0874
Cell:  716.553.6901
Email:  [email protected]
H&F Website:  www.hurwitzfine.com

Don’t forget to subscribe to our other publications:

Coverage Pointers: This twice-monthly electronic newsletter summarizes important insurance law decisions from appellate courts in New York State with the occasional snapshot across borders. Coverage Pointers, the electronic newsletter that started it all, continues to offer guaranteed publication every other Friday, and a read-at-a-glance summary of important decisions as they happen. Contact Dan Kohane at [email protected]  to 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. 

 

Corona v HHSC 13th St. Dev. Corp.
September 16, 2021

Appellate Division, First Department

 
Plaintiff was injured when he stepped onto two stacked, wet, two-by-fours that slipped out from under him while walking on a sidewalk abutting defendants’ property during the deconstruction and disassembly of a sidewalk bridge and his right eye became impaled on a tree guard. The trial court granted defendants’ summary judgment motion dismissing the complaint, and, in effect, also dismissed the third-party complaint. 
 
Labor Law § 240(1) (MAS)
The First Department affirmed dismissal of the Labor Law § 240(1) claim because plaintiff’s fall was not the result of an elevation-related risk against which he was not properly protected (see Armental v 401 Park Ave. S. Assoc., LLC, 182 AD3d 405, 406 [1st Dept 2020]; see generally Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001]).
 
PRACTICE POINT: Labor Law § 240(1) requires a fall involving a significant elevation differential.  Just because you fell off something (here, stacked two-by-fours) does not mean you fell from a height, so as to be covered by the statute.
 
Labor Law § 241(6) (TPW)
The First Department affirmed the dismissal of the Labor Law § 241(6) claim insofar as it was predicated Industrial Code (12 NYCRR) § 23-1.7(e)(2) because the tree guard bore no relation to “the work being performed.”  Further, Industrial Code section 12 NYCRR 23-5.1(h) also was property dismissed, as the putative absence of a "designated person" was determined not to be a proximate cause of the accident.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department reversed the order granting summary judgment to defendants. In response to a Notice to Admit, defendants admitted to installing, designing, and constructing the subject tree guard. On summary judgment (which was filed before defendants were deposed), defendants submitted an affidavit by their former director of operations, in which he averred, in sum and substance, that they never had anything to do with the tree guard and never received any complaints about it. Based on this, the Court held that “facts essential to justify opposition may exist but cannot . . . be stated” because they lie within defendants’ exclusive knowledge.  Therefore, further discovery was warranted, and the motion was premature.
 
PRACTICE POINT: This case demonstrates the risk of filing an early summary judgment motion. Even if you think you have a slam dunk case, if discovery is not completed, you run the risk of not only losing the summary judgment motion, but potentially giving your opponent a road map for defeating your motion once discovery is complete.
 
 

Powers v River Ctr. LLC
September 16, 2021
Appellate Division, First Department

 
Plaintiff was allegedly injured when he was struck by a carpet as it was being unrolled and installed during a renovation project. Plaintiff’s affidavit indicates that he was standing on top of a makeshift apparatus three feet above the floor at the time of the accident, directly contradicting his prior deposition testimony in which he repeatedly testified that he was standing on the floor at the time of the accident and never mentioned standing on the apparatus. The trial court granted the motion of Turner Construction and Dormitory Authority of the State of New York for summary judgment dismissing the Labor Law § 240(1) claim and denied plaintiff’s cross-motion for partial summary judgment on that claim.
 
Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court and denied defendants’ motion for summary judgment, finding an issue of fact as to whether the heavy carpet and pipe, which were estimated to weigh a total of 275 pounds, resting three feet above the floor, posed “a risk from a physically significant elevation differential” (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]; see e.g., Marrero v 2075 Holding Co., LLC, 106 AD3d 408, 409 [1st Dept 2013]).
 
PRACTICE POINT: This case reminds us why we dislike the First Department. The Court initially rejects plaintiff’s affidavit because the allegation that he was standing on a makeshift “apparatus” three feet above the floor undeniably contradicts his prior deposition testimony that he was standing on the floor when he fell. However, the court seemingly latches onto another statement from that same affidavit to create an issue of fact under a completely different theory of § 240(1) liability (falling object). This seems like selective reasoning to us. How could the heavy carpet and pipe (falling object) be secured if the work was to unroll and install it? Is plaintiff prevented by issue preclusion from claiming at trial that he fell while standing on top of a makeshift apparatus?
 
 

Sahmanovic v. Kingsbridge Realty Assoc., LLC
September 30, 2021
Appellate Division, First Department

 
Plaintiff was injured while performing a routine cleaning of the ground area outside defendant’s building. The trial court granted plaintiffs’ motion for leave to amend her complaint to allege violations of Labor Law §§ 240(1), 241(6), and 200, twelve years after commencing the action. 
 
Labor Law § 240(1) (MAS)
The First Department unanimously reversed and denied plaintiffs’ motion because she failed to demonstrate that the proposed amendment was not palpably insufficient. The proposed claims under the Labor Law cannot apply, since plaintiff’s injuries were allegedly sustained while performing a routine cleaning of the ground area outside the premises. That type of work is outside the reach of Labor Law §§ 240(1), 241(6), and 200. Further, the supplemental bill of particulars filed almost twelve years after the action was commenced cannot establish that notice was given to defendant, “since that is a device to amplify existing claims rather than add new theories of liability” (Kolb v Beechwood Sedgewick, LLC, 78 AD3d 481, 482 [1st Dept 2010]).
 
PRACTICE POINT: The extraordinary protections afforded to workers under Labor Law § 240(1) are limited to cleaning that is related to building construction, demolition and repair work; or, if not carried out at a construction site, is incidental to activities making a significant physical change to the premises (see Panek v County of Albany, 99 NY2d 452 [2003]); Joblon v Solow, 91 NY2d 457 [1998]).
 
 

Villalta v Consolidated Edison Co. of N.Y., Inc.
September 30, 2021
Appellate Division, First Department

 
Plaintiff, a cable-service repairman employed by a nonparty cable company, was allegedly injured in a fall from the ladder he propped up against a telephone pole owned by Verizon while inspecting storm-damaged cable equipment supported by the pole. The trial court denied plaintiff’s motion for partial summary judgment on liability under Labor Law § 240(1).
 
Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court, searched the record, and granted summary judgment to Verizon dismissing the Labor Law § 240(1) claim. The court found no evidence that Verizon contracted for, directed or controlled, or benefitted from the injury-producing work plaintiff was performing for the cable company at the time he was injured, or that it was acting in the capacity of an accountable “owner” within the meaning of the statute. Further, the court noted there is no evidence to support an inference that Verizon had a right to insist that plaintiff followed safety practices in the performance of his work.
 
PRACTICE POINT: Remember the four criteria of every Labor Law claim: appropriate, plaintiff, appropriate defendant, appropriate project, and elevation-related/gravity-related risk. Since Verizon was not an owner, contractor, or their agent, and did not direct, supervise, or control the injury-producing work, Verizon was not a valid Labor Law defendant.
 
 

Santibanez v North Shore Land Alliance, Inc.
September 1, 2021
Appellate Division, Second Department

 
Plaintiff, an employee of Lee Construction, was allegedly injured when he fell from a ladder at property owned by the Tagliches. Prior to the accident, Lee Construction, the general contractor for repairs performed at the property, contracted with Home Crafts to inspect and install gas inserts in fireplaces at the property. At the direction of Home Crafts, Catalano, a subcontractor, sealed a chimney with a piece of sheet metal to avoid water leakage, which also prevented the ventilation of smoke from a fireplace in the living room. The accident occurred when, at the direction of his foreman, plaintiff climbed a ladder to remove the sheet metal due to the buildup of smoke inside the property when the fireplace was tested, and the ladder shifted while plaintiff tried to remove the sheet metal using a crowbar. 
 
The trial court granted the Tagliches’ motion for summary judgment dismissing the amended complaint against them, granted the cross-motion of Home Crafts for summary judgment dismissing the amended complaint against it and denied plaintiffs’ cross-motion for summary judgment on the Labor Law §§ 240(1) and 241(6) claims against the Tagliches.
 
Labor Law § 240(1) (MAS)
The trial court affirmed dismissal of the complaint against the Tagliches because they established, prima facie, that they did not exercise any authority to supervise or control the performance of plaintiff’s work or the work of any contractor on the property. Therefore, the homeowner’s exemption applied to exempt the Tagliches from liability under Labor Law §§ 240(1) and 241(6).
 
The Second Department reversed the trial court and denied Home Crafts’ cross-motion since Homes Crafts failed to establish, prima facie, that plaintiff's act of climbing a ladder to remove the sheet metal preventing the ventilation of smoke “was so extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from [Home Crafts’] conduct as to constitute a superseding act which breaks the causal nexus”. Thus, Home Crafts failed to eliminate triable issues of fact as to whether its direction to seal the fireplace with a piece of sheet metal, without communicating to other contractors that the fireplace was rendered inoperable, was a substantial factor in causing the accident.
 
PRACTICE POINT: Home Crafts was close to avoiding liability, but for its actual creation of (i.e., actual notice of), the dangerous condition, which necessitated plaintiff’s work on the ladder. “Superseding act which breaks the causal nexus” arguments are difficult to win on motion practice and often result in findings of questions of fact as to how the accident occurred, as well as whether plaintiff’s and defendant’s (if any) conduct was a substantial factor, and, if so, to what extent plaintiff and defendant were responsible for the accident.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department reversed the trial court’s order granting summary judgment to Home Crafts as to Labor Law § 200 and common-law negligence. First, it restated the proposition that that “a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party. However, a contractor may be said to have assumed a duty of care and, thus, be potentially liable in tort, to third persons when the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm.” This is one of the Espinal factors. In its motion, Home Crafts failed to demonstrate it did not launch a force or instrument of harm by directing Catalano to seal the chimney, without alerting the other contractors that the fireplace at issue was rendered inoperable due to the inability to ventilate smoke. Accordingly, summary judgment should have been denied.
 
 

Khan v Khan
September 15, 2021
Appellate Division, Second Department

 
Decedent was allegedly injured when, while cleaning the gutters, he fell from the roof of a house owned by defendant. In her supplemental bill of particulars, plaintiff claimed that decedent fell from the roof due to the presence of slippery moss. The trial court granted defendant’s motion, pursuant to CPLR § 3126(2), to preclude plaintiff’s expert from testifying at trial since plaintiff failed to comply with discovery orders concerning expert disclosure. The trial court then granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s motion for leave to renew her opposition to defendant’s prior motion for preclusion.
 
Labor Law § 240(1) (MAS)
The Second Department affirmed dismissal of the Labor Law §§ 240(1) and 241(6) claims based on the homeowner’s exemption because defendant prima facie showed that he was the owner of a one-family dwelling who did not direct or control the injury-producing work being performed. In opposition, the court held plaintiff failed to raise a triable issue of fact.
 
PRACTICE POINT: This case is a quintessential example of the homeowner’s exemption, which exempts the owner of one- or two-family homes from liability under Labor Law §§ 240(1) and 241(6), so long as the owner does not supervise, direct, or control the injury-producing work. Bonus tip: Do not make David’s mistake and loan anyone working at your home a ladder!
 
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 hazardous condition on the premises claim, the Court held that defendant established entitlement to judgment as a matter of law by demonstrating that he did not create, or have actual or constructive notice of, the allegedly dangerous condition on the roof.
 
 

Lennon v 56th & Park(NY) Owner, LLC
September 15, 2021
Appellate Division, Second Department

 
Plaintiff filed a claim for Workers’ Compensation benefits as a result of knee injuries allegedly sustained while working at a construction site after the hoist elevator on which he was riding made multiple and sudden unanticipated rises and drops. At a hearing before an ALJ while represented by an attorney, plaintiff testified about the movements of the hoist when it rose and dropped “a bunch of times” while he and several other workers were upon it. He could neither recall the names of any of the other workers who were with him on the hoist at the time, nor identify any other person with knowledge of the alleged malfunction. Conversely, the general superintendent of Atlantic Hoisting & Scaffolding testified that safety features were in place that would have prevented the accident from occurring in the mechanical way described by plaintiff. Moreover, the safety features would have also prompted a regulatory 45-minute evaluation and re-set of the equipment after any such event, and required the generation of an incident report, none of which occurred on the date in question.
 
The ALJ denied plaintiff's Workers’ Compensation claim because the ALJ did “not believe that the hoist elevator malfunctioned in any way, much less in the drastic and dramatic way described by [plaintiff]”. The ALJ noted plaintiff’s inconsistent descriptions of the event itself, the injuries attributed to it, and the failure of his initial treating physician to find from imaging scans one week after the occurrence any knee condition other than degenerative changes. The ALJ concluded the “claim to be, at best, an afterthought” or that the alleged accident did not actually happen in any manner related to the claimed injury. Upon an administrative review of the determination that had been requested by plaintiff, the Workers' Compensation Board affirmed the findings and conclusion of the ALJ. No further review of the administrative proceedings was sought in any court.
 
In his Labor Law case, the trial court granted defendants’ motion for leave to amend their answer to include an affirmative defense that plaintiff’s claim was barred by the doctrine of collateral estoppel, and then granted their motion for summary judgment dismissing the second amended complaint alleging violations of Labor Law §§ 240(1), 241(6), 200 and common-law negligence against the owner, construction managers, and a contractor at the site (collectively defendants).
 
Labor Law § 240(1) (MAS)
The Second Department first determined the proposed amended pleading was not palpably insufficient or patently devoid of merit. The court next found that the proposed amendment did not cause surprise or undue prejudice to plaintiff since he fully litigated the issues at the Workers’ Compensation Board. Finally, the court held defendants met their burden of establishing, prima facie, their entitlement to judgment as a matter of law on the ground that plaintiff’s action was barred by the doctrine of collateral estoppel. The ALJ’s findings, as affirmed by the Workers’ Compensation Board, established as a matter of fact that the accident claimed by plaintiff did not occur, or did not occur in the described manner as would cause injury. That finding is material and, in fact, pivotal, to the core viability of any personal injury action that plaintiff could pursue in a court of law regarding the same incident.
 
Without an injury-producing occurrence, no court need reach the issue of whether the hoist elevator at the construction site had malfunctioned in any way, or whether any such malfunction qualifies as a violation of any provision of the Labor Law, or the nature and extent of plaintiff’s alleged injuries. The court held the circumstances here are akin to those seen in Rseire v Alendaner’s Kings Plaza, LLC and Emanuel v MMI Mech., Inc., where, in both instances, the issue determined at plaintiffs’ Workers’ Compensation hearings that plaintiffs had not sustained a work-related injury was identical to the central liability issue in the same plaintiffs’ personal injury actions.
 
PRACTICE POINT: The doctrine of collateral estoppel gives conclusive effect to prior determinations when two conditions are met: (1) an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and (2) a full and fair opportunity to contest the decision now said to be controlling. The burden of proof is on the proponent of collateral estoppel to establish the duplicative identity of the party against whom the doctrine is sought to be applied and the issues of the two proceedings. In this case, the “non-occurrence of an injury-producing accident” decided by the Workers’ Compensation Board was a dagger in the heart of the plaintiff’s entire personal injury Labor Law action.
 
 

Jin Gak Kim v Kirchoff-Consigli Constr. Mgt., LLC
September 29, 2021
Appellate Division, Second Department

 
Plaintiff was allegedly injured while working at a building under construction on the SUNY Albany campus. According to plaintiff, Kirchoff was performing certain construction work at the building, and Kirchoff entered into a subcontract with TMC to perform demolition work associated with the project. Plaintiff, an employee of TMC, was allegedly injured while working at the site in May 2013, when he was struck by a falling piece of two-by-four lumber which was seven feet long. The trial court denied Kirchoff’s summary judgment motion dismissing the complaint and on its third-party contractual indemnification claim against TMC.
 
Labor Law § 240(1) (MAS)
The Second Department affirmed denial of Kirchoff’s motion since it failed to establish that it did not have the ability to control the activity which brought about plaintiff’s injury or the ability to establish and maintain safety procedures at the worksite when the accident occurred. Since Kirchoff failed to establish its prima facie entitlement to judgment as a matter of law dismissing the complaint, the court did not address the sufficiency of plaintiff’s opposition papers.
 
PRACTICE POINT: Although a construction manager of a worksite is generally not responsible for injuries under Labor Law §§ 240(1), 241(6), or 200, when it functions as an agent of the property owner or general contractor in circumstances where it has the ability to control the activity which brought about plaintiff’s injury, it will be held responsible under the statute.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed denial of summary judgment as to the Labor Law § 200 and common-law negligence claims on the same basis as § 240(1).
 
Indemnity Issues in Labor Law (BFM)
The Second Department held that the denial of Kirchoff's motion for summary judgment on the second third-party contractual indemnification claim against TMC was proper, because Kirchoff failed to eliminate triable issues of fact as to whether it was free from negligence.
 
 

Masmalaj v New York City Economic Dev. Corp.
September 29, 2021
Appellate Division, Second Department

 
Defendant West Rac was the general contractor on the construction of a building at property owned by the City of New York. Plaintiff was employed by a carpentry subcontractor and, at the time of the accident, his assigned work required him to stand on a Baker scaffold to install ceiling tracks on a 10- to 12-foot ceiling. As plaintiff was attempting to move the scaffold while standing on the platform, the scaffold toppled over and plaintiff fell five to six feet to the cement floor below. After the accident, plaintiff noticed that one of the wheels of the scaffold was completely detached from it. The trial court granted plaintiff’s summary judgment motion under Labor Law §§ 240(1) and 241(6).
 
Labor Law § 240(1) (MAS)
The Second Department affirmed as plaintiff established his prima facie entitlement to judgment as a matter of law by demonstrating that he was engaged in work within the ambit of the statute and that his injuries were proximately caused by “the absence or inadequacy of a safety device of the kind enumerated in the statute”. Plaintiff submitted, among other things, an affidavit of his foreman, who averred that there were no nuts and bolts securing the wheels to the scaffold, and that the wheels were kept in place with the use of wire. Shortly after the accident, this foreman also observed that one of the wheels of the scaffold had become detached from its frame. In opposition, defendants failed to present a plausible view of the evidence that there was no statutory violation and that plaintiff’s own acts or omissions were the sole cause of the accident.
 
PRACTICE POINT: A plaintiff is entitled to summary judgment under § 240(1) where his or her proof demonstrates that the ladder or scaffolding failed to afford proper protection for the work being performed, and that failure was a proximate cause of his or her injuries.
 
Labor Law § 241(6) (TPW)
Once the Second Department affirmed the grant of Labor Law 240(1) liability, it further affirmed the grant of Labor Law 241(6) without additional analysis.  
 
 

Masmalaj v New York City Economic Dev. Corp.
September 29, 2021
Appellate Division, Second Department

 
Plaintiff fell from a scaffold five to six feet to the cement floor below (same as in the prior case). At trial on the issue of damages, plaintiff demonstrated that he sustained a fracture of his left shoulder that required surgery, as well as injuries to the cervical and lumbar regions of his spine that caused severe pain in his neck and lower back, which resulted in five epidural injections. He had a herniated disc at C4-C5, and ultimately underwent cervical fusion surgery, which resulted in a “non-union”. The jury returned a verdict awarding plaintiff $2,000,000 for past pain and suffering, $2,343,108 for future pain and suffering, $322,264 for past lost earnings, $569,454 for future lost earnings over five years, and $297,635 for loss of social security retirement income over ten years. The jury also awarded $374,949 for future medications, $349,840 for future pain management, $105,612 for orthopedic visits, $171,554 for physical therapy, and $49,506 for diagnostic tests all over thirty-six years, in addition to $100,000 for a future spinal surgery.

The trial court denied defendants’ motion, pursuant to CPLR 4404(a), to set aside the verdict and for a new trial or, alternatively, to set aside as excessive the verdict for past pain and suffering, past and future lost earnings, loss of social security retirement income (SSI), and future medical expenses.
 
Labor Law § 240(1) (MAS)
The Second Department modified the trial court’s decision by reducing the amounts of damages to $1,000,000 for past lost earnings, $207,000 for future lost earnings, $211,434 for future lost earnings for five years, and $40,000 for loss of SSI because the awards for past and future loss of earnings and loss of SSI were excessive to the extent that they exceeded the income plaintiff could reasonably have expected to earn, based on his W-2 form and economist’s projections of his earnings. The court also held the evidence at trial established that plaintiff would incur future medical expenses of $374,949 for medication. However, the future pain management award was reduced to $55,763, eliminating the future medical expenses for epidural injections.
 
PRACTICE POINT: Lost earnings must be proven with reasonable certainty. This is often done by means of tax returns or other documentation. Damages awards for past and future medical expenses must be supported by competent evidence establishing the need for, and the cost of, medical care. However, evidence that plaintiff will incur medical expenses when and if future conditions develop that require treatment (e.g., epidural injections) is merely speculative, and, as exemplified in this case, does not support an award of damages for future medical expenses.

 

Palaguachi v Idlewild 228th St., LLC
September 29, 2021
Appellate Division, Second Department

 
Plaintiff, an employee of nonparty subcontractor Tipp Flooring, was installing flooring at the premises on his knees, applying adhesive to the floor, when his right knee pad, which he alleged was broken, shifted, causing him to fall. Idlewild was the owner of the building and Bar Construction was the general contractor for the project. The trial court denied Idlewild’s motion for summary judgment dismissing the Labor Law § 241(6) claim against it and on its crossclaim for contractual indemnification against Bar Construction and granted plaintiff’s cross-motion for leave to amend the bill of particulars to allege violations of additional Industrial Code sections.
 
Labor Law § 241(6) (TPW)
The Second Department affirmed the denial of defendant-owner Idlewild 228th Street, LLC’s Motion for Summary Judgment seeking dismal of the Labor Law § 241(6) cause of action based upon a violation of 12 NYCRR 23-1.5(c)(3) which mandates "[a]ll safety devices, safeguards and equipment in use shall be kept sound and operable, and shall be immediately repaired or restored or immediately removed from the job site if damaged."  The court determined Idlewild failed to establish its prima facie entitlement to judgment as a matter of law, as it failed to demonstrate either that 12 NYCRR 23-1.5(c)(3) was inapplicable under the given facts or that the alleged violation of that provision was not a proximate cause of the plaintiff's injuries.
 
Indemnity Issues in Labor Law (BFM)
The Second Department affirmed the trial court’s denial of that portion of Idlewild's motion seeking contractual indemnification against Bar Construction, finding that Idlewild failed to eliminate all triable issues of fact regarding, inter alia, whether the plaintiff's injuries were caused by the negligent acts or omissions of Bar Construction, a subcontractor, or anyone employed by Bar Construction or a subcontractor.

 

Begeal v Jackson
September 16, 2021
Appellate Division, Third Department

 
Plaintiff, an employee of C & D Enterprises, an industrial painting company owned by defendants, was asked to erect and/or construct a ventilation stack upon a commercial building that served as a C & D Enterprises facility. To complete this task, plaintiff was required to utilize an aluminum extension ladder owned by C & D Enterprises. He placed the ladder in an area in which there was snow. While outside by himself, he raised the extension part of the ladder to reach the eaves of the building. He testified there were no problems with the ladder at the time and it felt as though it was secure. Prior to falling twelve feet, he also testified he had “shifted [his] position to get another screw out of [his] pocket, and that’s when the ladder either shifted or fell”. The trial court denied defendants’ motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for partial summary judgment.
 
Labor Law § 240(1) (MAS)
The Third Department reversed the trial court and granted summary judgment to plaintiff, who established prima facie entitlement to summary judgment on his Labor Law § 240(1) claim through evidence that the ladder slipped, thereby causing his fall and subsequent injuries. The court rejected defendants’ sole proximate cause contention since their arguments merely raised a question as to plaintiff’s comparative negligence, which is not a defense to this claim.
 
PRACTICE POINT: To defeat a plaintiff’s motion for summary judgment under Labor Law § 240(1), a defendant must demonstrate a plausible view of the evidence - enough to raise a question of fact – that there was no statutory violation and that plaintiff’s own acts or omissions were the sole cause of the accident. Here, defendants could only produce evidence that the ladder may not have been defective, and the adequacy of the ladder is not a question of fact when it “slips or otherwise fails to perform its function of supporting the worker”.
 

 

 New York Industrial Code Regulations (EDA)

12 NYCRR 23-1.22(b)(2)— Runways and ramps. Runways and ramps constructed for the use of persons only shall be at least 18 inches in width and shall be constructed of planking at least two inches thick full size or metal of equivalent strength. Such surface shall be substantially supported and braced to prevent excessive spring or deflection. Where planking is used it shall be laid close, butt jointed and securely nailed.

Regulation § 1.22(b)(2), which pertains to runways and ramps constructed for the use of persons only, contains specific commands sufficient to support a Labor Law § 241(6) cause of action.

Torkel v NYU Hospitals Center, 63 AD3d 587, 883 NYS2d 8 (1st Dept 2009)
 
O’Hare v New York, 280 AD2d 458, 720 NYS2d 523 (2d Dept 2001)

Torkel v NYU Hospitals Center, 63 AD3d 587, 883 NYS2d 8 (1st Dept 2009) (§ 23-1.22(b) inapplicable where ramps in question used by workers to move wheeled dumpsters)
 
O’Hare v New York, 280 AD2d 458, 720 NYS2d 523 (2d Dept 2001) (§ 23-1.22(b)(2), which establishes standards for construction of runways and ramps to be used by individuals, sets forth specific standards of conduct).

 

 

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