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Labor Law Pointers - Volume X, No. 12

 
 

Labor Law Pointers

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

Volume X, No. 12
Wednesday, November 3, 2021

 

 From the Editor:

Do you have a situation?  We love situations.  Give us a call, send an email, drop by; we truly enjoy solving complex Labor Law and risk transfer issues. 
 
I have a different opening for this month’s edition.  Usually, I am seeking to provide information and to help our readers.  This month, I am asking for your help.
 

 
As many of you already know, my son Nick and I are participating in the 2021 edition of the 11 Day Power Play on November 21.  This will be our fourth time playing and raising money to fight cancer. You may wonder why I torture myself year after year; the answer is:  the cause. 
 
As some of you may not be familiar with the 11 Day Power Play, it is an 11-day long hockey game, organized to raise money for cancer research.  The first year, 5 years ago, 40 players took shifts and the same 40 played for all 11 days.  It was truly remarkable.  They raised over $1 million. 
 
The following year, my first year (yes, I am too old to play for 11 days straight), the 11 days was broken down into 4-hour shifts.  I survived.  That is a long time for an old guy to play hockey.  We did the same the next year.  Last year, due to the pandemic, it was played outdoors, on a dry rink, to comply with the restrictions on indoor activities.  Take my word for it, skating for hours is easier than running for hours.  This year, we are back on the ice.
 
We are a part of a very special team; one composed largely of fathers and sons.  We did this not only to raise money for cancer research, but to support another good friend, and fellow hockey player, who lost his young son to cancer.  When I asked Nick if he wanted to do this the first year he simply said, “Of course Dad.”  Now it is something he looks forward to, for the hockey with his friends, but mostly for the cause.
 
It is always an emotional time for us all; skating with Keith and knowing how he, and all of us, wanted his son Patrick to be there with us.   It is fun skating with our sons, playing with them against other father and son combinations.  Nick, and most of the boys, were just 11 at the time, and we could still skate past them.  Now, they are 15, much bigger and faster and, I at least, am no match for their speed.  Over the years, I have torn a hamstring, injured a knee, and in general been beaten up by those pesky kids.  But I always come back.  Every year we have said that this is the last year, and every year we come back;  for the cause.
 
Why do we skate to end cancer?  Because cancer sucks.  We all have someone we love touched by cancer.  My mom was a cancer survivor.  My wife is a cancer survivor.  My cousin was twice a survivor, but not the third time.  I have lost way too many people that were important to me.  We have a very close family friend fighting for the third time and winning.  Another close friend lost his sister this year.  I had a law partner taken.  The list is endless.  We have all had these losses.  This has gone on way too long. There are so many more. We all have been touched by cancer and we all know that it must be eradicated.

So, the question, for all of us affected by this horrendous, insidious disease, is what can we do to help?  My answer is to skate my shift and raise money for research.
 
All money raised will be donated to Roswell Park Cancer Institute and the Make a Wish Foundation.  Roswell Park is a world leading hospital for both the treatment of cancer and research.  Make a Wish grants the wishes of critically ill children, bringing normalcy to the lives of these children and their families during a period of extreme stress and anguish. Both are incredibly worthy causes.

I am humbly asking for donations to sponsor Nick and me for our shift.  I am adding the link to our page for any who wish to sponsor us. 
 
            https://communityshift.11daypowerplay.com/Adams2021
 
Additionally, for any who are interested, here is a link to a video, made last year, of some of the members of our team talking about why we skate.  
 
            https://youtu.be/OCyAE7MtyfU?t=7485

Thank you so much. 

- David and Nick
 
I can’t, however, send out a newsletter without adding a video to teach a Labor Law lesson.  In the video below, the plaintiff is cutting down a tree to repair a wall.  The company hired to repair the wall sent a crew out to do just that, and the result is there to be seen.  Is this a § 240(1) case or not?
 
Man cuts down tree from ladder
 
There are several things to be considered in this case.  First, is the cutting down of a tree a covered activity?  It is not a covered activity on its own.  A tree is not a structure or building and thus, simply cutting down a tree is not covered.  However, in this instance, the project was to repair a wall.  The wall IS a structure, and thus the larger project is covered.  So, the fact that the plaintiff was only working on the tree at the time does not, automatically, take the project out of the protections afforded to the plaintiff by § 240(1).  The question here, is whether the tree cutting was a separate and distinct phase of the overall project.  If the crew was only cutting down the tree, and then returning the following week to repair the wall, it may not be a covered activity.  If, however, they cut down the tree and then started repairing the wall, § 240(1) likely would apply.  Next, we need to consider the fact that, the branch which hits the plaintiff, i.e., the falling object, was intentionally being cut, and intended to fall. Generally, when the falling object was falling intentionally, as a part of the task, it is not a § 240(1) case.  The analysis will be whether the task should have been undertaken in a different manner and whether the safety devices used were sufficient for the task.  Here, while the video looks really bad, and dangerous, I think that it would likely be a question of fact.
 
In this video, the plaintiff is hired to install a new sign on the front of a store.  As he is tightening the final bolt, a man on a scooter drives directly into the ladder causing him to fall.  § 240(1) case?
 
Man on scooter hits ladder.
 
The plaintiff is so employed; the property owner is a valid defendant; the task is an alteration; and the injury caused by the application of gravity.  This is, however, likely not a § 240(1) case as the manner in which the accident occurred is not foreseeable.  Summary judgment for the defendant.
 
In our next photo, the plaintiff, standing on a ladder, apparently being supported by a co-worker using only one hand, is working for a contractor hired by the owner to install a data line.  When the co-worker forgets he is holding the ladder and reaches for a piece of gum, the plaintiff falls and is injured.  § 240(1) case?
 

 
The plaintiff is a person so employed; the project, installing a data line, would qualify as an alteration; the owner would be a valid defendant; and the plaintiff injury would be caused by the effects of gravity on him.  This is a § 240(1) case all day.
 
We have added two members to our Labor Law Team this month: Jesse L. Siegel and Cara M. Pascarella; both in our NYC Metro office.  Our team truly covers the state. 
 
Jesse focuses his practice on insurance defense, primarily defending against claims of personal injuries in the areas of automobile liabilitypremises liability, and construction accident litigation. He brings over a decade of experience as a civil litigator, conducting both bench and jury trials in the District, Civil and Supreme Courts of Nassau County and Suffolk County, as well as the five boroughs of New York City.  Jesse received a Bachelor of Arts degree from Cornell University and his Juris Doctorate from the University of Miami. 

Cara Pascarella primarily handles matters involving premises liability, automobile liability, and NYS Labor Law (Scaffold Law) & construction defect.  Cara received her JD from the Maurice A. Dean School of Law at Hofstra University.  Before receiving her Juris Doctorate, Ms. Pascarella earned a Bachelor’s degree in economics from Washington College, where she also served as captain of the women’s lacrosse team.
 
I am also excited to announce that Hurwitz & Fine is participating in the Midsize Mansfield Rule Certification program. This national diversity certification is an 18-month rigorous process designed to increase the representation of diverse lawyers in leadership by broadening the pool of women, LGBTQ+ lawyers, lawyers with disabilities, and racial/ethnic minority lawyers who are considered for entry-level and lateral attorney job openings, leadership opportunities, equity partner promotions, and opportunities to connect with clients. This certification is another positive step we are taking as a firm toward achieving our goals of creating and maintaining a diverse team of attorneys to partner with our clients.
 
Our participation also demonstrates Hurwitz & Fine’s deep commitment to diversity, equity and inclusion within our firm culture, client service teams, and in recruiting efforts. Participation in Mansfield Certification will help us to act with intentionality in our recruitment and advancement efforts, track important related diversity metrics, standardize processes and increase transparency—much of what we are already doing today. We are prepared to undertake this process and excited to see the outcomes.
 
That’s it for now.  Hope you enjoyed this month’s edition.  Please consider supporting the 11 Day Power Play, and help us fight cancer, one shift at a time.

As always, please feel free to reach out with any questions Labor Law or Risk Transfer related, we are always here to help.  My cell is 716-553-6901.
 

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. 

 

Plaku v 1622 Van Buren LLC
October 5, 2021
Appellate Division, First Department  

 
Plaintiff was injured when a closed, unsecured, A-frame ladder, upon which he stood to cast debris into a dumpster, allegedly shifted from its propped position against the dumpster and caused him to lose his balance and fall. The trial court denied plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim.
 
Labor Law § 240(1) (MAS)
In opposing plaintiff’s motion, the property owner argued that plaintiff’s alleged disregard of his employer’s instruction to not use the nearly full dumpster that belonged to another contractor was the sole proximate cause of his injury. The First Department unanimously reversed the trial court’s order and granted plaintiff’s motion because defendants failed to meet their burden of raising an issue of fact as to whether “there was no statutory violation and … plaintiff’s own acts or omissions were the sole proximate cause of the accident”. To the extent defendants argued that plaintiff was recalcitrant in ignoring defendants’ alleged instructions not to use the dumpster, the Court held an employer’s instructions to avoid an unsafe practice is not a sufficient substitute for providing a worker with a safety device to allow him to complete his work safely.
 
PRACTICE POINT: A worker’s injury in an area of the work site where the worker was not supposed to be amounts to nothing more than comparative negligence, which, as you all hopefully know by now, is not a defense to a § 240(1) claim. The recalcitrant worker defense requires a showing that the injured worker refused to use the safety devices that were provided by the owner or employer. It has no application where, as in this case, no adequate safety devices were provided.
 
 

Viruet v Purvis Holdings LLC
October 26, 2021
Appellate Division, First Department

 
Plaintiff was injured in two separate incidents occurring on two separate days at a job site. He had been instructed to clean-up debris directly underneath a steel and plywood form used for concrete, and his first incident occurred when pins affixing the form came off the wall and fell on top of him from a height of three to five feet. His second incident involved his use of a visibly defective grinder that had no blade, safety guard, or side handle, and lacked a cut-off switch. He was allegedly injured during his use of the grinder, when it spontaneously cut-off and then turned back on, without plaintiff engaging the power switch and when he complained, he was instructed to proceed with the defective grinder or go home. The trial court denied plaintiff’s summary judgment motion on his Labor Law §§ 240(1) and 241(6) claims against Purvis and HSD and denied summary judgment under his § 200 and common-law negligence claims against HSD.
 
Labor Law § 240(1) (MAS)
The First Department reversed the trial court’s order and granted plaintiff summary judgment under § 240(1) as he was injured when the steel and plywood form fell on him because an elevated-related safety device failed, or no device was placed and operated to provide him with adequate protection. The Court held defendants failed to prove the statute was not violated and even assuming that there were pins attaching the form to the wall, the statute was violated because the incident the pins were intended to prevent still occurred and injured plaintiff.
 
PRACTICE POINT: The trial court denied plaintiff’s motion because he could not explain precisely what caused the form to fall, and did not submit any expert proof, but remember, a plaintiff need only demonstrate that he or she was injured when an elevation-related safety device (e.g., the form) failed to perform its function to support an injured worker from injury.
 
Labor Law § 241(6) (TPW)
In light of the First Department’s determination on the Labor Law § 240(1) claim, defendants’ arguments regarding the claim for negligence and the claims under Labor Law §§ 200 and 241(6) were deemed academic.
 

Rivas-Pichardo v 292 Fifth Ave. Holdings, LLC
October 13, 2021
Appellate Division, Second Department

 
Plaintiff was working as a laborer employed by Pinnacle on a demolition project at property owned by 292 Fifth Avenue Holdings. A former elevator shaft had been converted into a debris chute for the project, and workers dumped debris into the chute from the floors above. The debris would accumulate at the ground or basement level, where a hole had been cut into the chute for removal of accumulated debris. At the time of the incident, plaintiff was at the bottom level of the chute, removing debris from the area in front of the chute. Before he began to work in that area, another worker called to the upper floors with a directive to stop dumping debris into the chute so the bottom area could be cleared. One of the laborers did not hear the directive and dumped the contents of a wheel barrel into the chute as plaintiff worked in front of the chute, and some bricks from the wheel barrel ricocheted out of the bottom of the chute and struck plaintiff.
 
The trial court denied plaintiff’s cross-motion for summary judgment under Labor Law § 240(1), granted 292 Fifth Avenue’s motion seeking dismissal of the Labor Law § 200 and common-law negligence claims, and granted Pinnacle’s motion to dismiss the § 240(1) claim and that portion of the Labor Law § 241(6) claim predicated on a violation of Industrial Code (NYCRR) §§ 23-1.20(a), 23-2.5(a) and 3.3(e). The trial court also denied Pinnacle’s motion seeking dismissal of the Labor Law § 241-a claim and § 241(6) claim predicated on a violation of § 23-1.7(a)(1).
 
Labor Law § 240(1) (MAS)
The Second Department reversed the trial court’s order and granted plaintiff summary judgment because the debris that was being removed from the building was thrown down the elevator chute, and plaintiff’s injuries were caused by materials which descended from a higher floor and ricocheted out of the chute into his work area. Therefore, the protections of the statute are implicated since plaintiff’s injuries were caused either by the inadequacy of the chute in protecting him from the elevation-related risk resulting from the disposal of the debris down that chute, or the failure to employ other safety devices for the removal of the debris, which might have provided the necessary protection.
 
PRACTICE POINT: For falling object cases, plaintiffs are not required to show that the object which fell was being hoisted or secured when it fell; only that plaintiff was struck by a falling object, that he or she was not supplied with adequate protection from that resulting harm, and that the failure to not supply adequate safety device was a proximate cause of plaintiff’s injury.
 
Labor Law § 241(6) (TPW)
The Second Department modified the decision of the trial court, noting that Pinnacle failed to demonstrate, prima facie, that 12 NYCRR 23-1.7(a)(1), 23-1.20(a), 23-2.5(a), and 23-3.3(e) did not apply to the facts of this case, or that the alleged violations of these provisions were not a proximate cause of the plaintiff's alleged injuries.  Accordingly, the Supreme Court properly denied that branch of Pinnacle’s cross motion which was for summary judgment dismissing the Labor Law § 241(6) cause of action insofar as it was predicated on 12 NYCRR 23-1.7(a)(1), and also should have denied that branch of the cross motion which related to 12 NYCRR 23-1.20(a), 23-2.5(a), and 23-3.3(e).
 

Fonck v City of New York
October 20, 2021
Appellate Division, Second Department

 
Plaintiff was employed by a nonparty subcontractor at a construction project on a public pool. He testified at his deposition that he was engaged in placing and tying rebar in a grid pattern on top of plastic sheeting in what would become the “beach,” or sprinkler, area of the pool. While he was retrieving his pliers, which were lying approximately five feet away from where he was working, he allegedly tripped on a piece of pipe concealed underneath the plastic sheeting, causing him to fall. The trial court granted defendants’ summary judgment motion and dismissed the Labor Law § 241(6) claim to the extent it was predicated on violations of Industrial Code §§ 23-1.7(d), 1.7(e)(1) and 1.7(e)(2).  It also dismissed the Labor Law § 200 and common-law negligence claims.
 
Labor Law § 241(6) (TPW)
The Second Department affirmed the trial court’s order granting defendants’ motion dismissing the Labor Law § 241(6) cause of action as was predicated upon alleged violations of 12 NYCRR 23-1.7(d) and (e)(1) and (2).  Defendants successfully established that 12 NYCRR 23-1.7(d), relating to slipping hazards, was inapplicable given plaintiff tripped over a pipe concealed under plastic sheeting.  Further, the area where plaintiff fell did not constitute a passageway as contemplated by the Industrial Code.  Similarly, 12 NYCRR 23-1.7(e)(2) was deemed inapplicable as the pipe and vapor barrier over which plaintiff tripped were not “debris” or “scattered” materials, but rather had been intentionally installed and were a “permanent and an integral part of what was being constructed”.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department reversed the trial court’s order granting summary judgment as to Labor Law § 200 and common-law negligence, finding that triable issues of fact precluded that relief. The Court first reiterated that § 200 codified the common-law duty to provide employees with safe places to work. It then noted this duty did not extend to protecting employees from hazards which are “part of, or inherent in, the very work the employee is to perform or defects the employee is hired to repair.” In reversing the order, the Court held defendants did not eliminate all triable questions of fact regarding whether the placement of the plastic sheet on top of, as opposed to underneath, the installed pipe was a hazard that was part of, or inherent in, the work plaintiff was hired to perform, and thus were not entitled to summary judgment.
 

Hensel v Aviator FSC, Inc.
October 20, 2021
Appellate Division, Second Department

 
Plaintiff’s incident involved loading heavy soccer boards into the back of a box truck, which had been used to form the walls of indoor soccer fields. All the boards were between 6 and 12 feet long and weighed more than 100 pounds each. Plaintiff used a forklift to lift the boards, which were stacked on top of the forks of the forklift and lifted into the air so they could be transferred and stacked in the back of the box truck. At the time of his incident, plaintiff and his coworkers were attempting to slide one of the boards from a stack on the raised forklift into the back of the truck. The stack was raised to a height of 8 or 9 feet at the time plaintiff was struck in the head by a board, weighting 200 pounds, when it slid sideways off the stack and over the cab of the forklift while plaintiff stood on ground level.
 
The complaint alleged the forklift was defective and lacked certain safety devices which would have secured the boards and prevented the incident. The trial court’s order denied defendant’s summary judgment motion seeking dismissal of the Labor Law §§ 240(1), 241(6), 200, and common-law negligence claims, and granted plaintiff’s cross-motion under § 240(1).
 
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s order granting summary judgment to plaintiff as the disassembling and removal of the boards from the soccer field was a partial dismantling of a structure and was thus qualified as “altering” with the meaning of § 240(1) because it constituted a significant physical change to the configuration of the structure. Plaintiff’s role in hauling away the boards after they had been removed by defendant was an “ancillary” act to the demolition and alteration of the field structure and thus, protected under the statute.
 
The Court also held that plaintiff established, prima facie, the existence of a hazard contemplated under § 240(1), and that the failure to provide an adequate safety device caused him to sustain an injury as a result of that hazard. Plaintiff’s proof included an expert affidavit from a professional engineer, demonstrating that the forklift had been used to “constrain the boards as they were moved from the elevated forks into the truck.”
 
PRACTICE POINT: This case reminds us of the four criteria of a Labor Law § 240(1) claim: appropriate plaintiff; appropriate defendant; appropriate project; and elevation-related/gravity-related risk. In this case, the court’s analysis turned on the fourth criteria, which was met, since plaintiff was dismantling a structure, which activity constituted a significant physical change to the configuration of that structure and thus, was engaged in an “alteration,” a protected activity under § 240(1).
 

 New York Industrial Code Regulations (EDA)

12 NYCRR 23-1.22(b)(3) Runways and ramps constructed for the use of wheelbarrows, power buggies, hand carts or hand trucks shall be at least 48 inches in width. Such runways and ramps shall be constructed of planking at least two inches thick full size or metal of equivalent strength. Such runways and ramps shall be substantially supported and braced to prevent excessive spring or deflection. Where planking is used on such runways and ramps, it shall be laid close, butt jointed and securely nailed. Such runways and ramps shall be provided with timber curbs at least two inches by eight inches full size, set on edge and placed parallel to, and secured to, the sides of such runways and ramps. Bracing for such runways and ramps shall be installed at a maximum of four foot intervals.

Regulation § 23–1.22(b)(3) establishes standards for construction of ramps for wheelbarrows, power buggies, hand carts and hand trucks, sets forth specific standards sufficiently specific to support to support a § 241(6) cause of action.

Arrasti v HRH Const. LLC, 60 AD3d 582, 876 NYS2d 373[1st Dept. 2009]). 
 
Dietz v Compass Prop. Mgt. Corp., 49 AD3d 1152, 1153 [4th Dept 2008]

Arrasti v HRH Const. LLC, 60 AD3d 582, 876 NYS2d 373[1st Dept. 2009]).  Applicable where plaintiff claimed ramp from which he fell while wheeling loaded A-frame cart did not comply with prescribed standards.

 

 

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