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Labor Law Pointers - Volume X, No. 2

 
 

Labor Law Pointers

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

Volume X, No. 2
Wednesday, January 6, 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.
 
Happy New Year to one and all.  We hope that you, your loved ones, and your colleagues are healthy and remain that way until the vaccine is generally distributed.  It would be a cruel thing to become sick now with the end in sight, even if it is a way off.  Please stay careful.
 
We add a new feature to our newsletter this month, an article addressing a point of particular interest to practitioners and claims professionals practicing in our practice area, New York Labor Law and Risk Transfer.  This month we feature an article written by Marc Schulz, a member of the firm and an important component of our Labor Law Team.  Marc addresses the restrictions on contractual indemnity as delineated in General Obligations Law (GOL) § 5-322.1, which pertains to construction contracts, and § 5-321, which applies to commercial leases.  These statutes have differing restrictions and it is essential to understand them to evaluate the ability to pursue indemnity in either situation.  It is often the case that not only practitioners, but courts misapply the standard of § 5-322.1, precluding indemnity to a negligent party to commercial leases which are governed by § 5-321. To read Marc's article, click here.
 
In addition to the article linked above, Marc and I will be presenting a short 45-minute webinar on January 21, 2021, at noon, open to anyone wishing to attend, addressing the topic with specific examples as it pertains to Labor Law cases and Risk Transfer.  Simply click on the link to sign up.  We hope you will find this webinar informative, entertaining, and useful.
 
In keeping with the tradition of using photos of work sites as teaching tools, we have a group of students making a bonfire for homecoming.  They have been permitted by the school to create this “structure” but were required to do so safely, which the school decreed to mean that they all wore hard hats and gloves.  As the bonfire was growing higher by the minute, one of the students sneezed, causing the entire tower to sway this way and that, until a student several stories up fell, striking another student, who was injured.  The falling student was not injured, but the student struck was.  § 240(1) case?
 

 
In addition to being just plain crazy, we need to analyze the situation.  The undertaken activity, building a bonfire, could easily be considered construction and the fire itself, being made up of component parts, would qualify as a structure.  The college, owning the property, would be a valid defendant.  The injured student was struck by a falling object, student number 1, which should have been secured, thus seemingly creating a § 240(1) case.  The argument of the defense here is that the plaintiff, a student who is not in the employ of anyone while building the bonfire, is not a “person so employed” but rather a volunteer and, thus, not a valid plaintiff.  Summary judgment to the college.
 
Here, we have a situation which does not apply to the Labor Law; but given the pandemic, I felt obligated to include it.  There were 11 iron workers having their lunch 53 stories up on a girder, thinking they were safe from the OSHA compliance officers.  Unfortunately for them, the officer had his binoculars with him and noticed that they were violating an executive order, and forced them to reallocate their positions on the beam.  The question is why?
 

 
The workers had obviously ignored the directive to remain 6 feet apart and were forced to separate, allowing for the appropriate distance.  It appears that on a beam, masks were not mandatory.  An iconic image, updated for the current time.
 
In our third offering, we have the owner of a gas station offer to pay the crew working on the building next door to change the price of gas on the sign by the street.  They placed a pallet on the forks of their lift truck and raised one of the workers up to change the price.  A driver going by was so excited by the new and reduced price that he hit the lift truck, causing the worker to fall and become injured.  The car sped away and was not able to be located or identified.  Plaintiff’s attorney told his client not to worry, that they would simply sue the owner under the Labor Law as the plaintiff fell from a height.  § 240(1) case?


 
Plaintiff, unlike the student above, was a person so employed and thus a valid plaintiff.  The defendant owns the property, and the sign is clearly a structure, so we have a valid defendant.  The safety device, the lift truck with a pallet on the forks was not appropriate and did not protect the plaintiff from the effects of gravity, so that element is also satisfied.  The rub here is that the task the plaintiff was engaged in at the time of the accident was not construction, demolition, repair, or any enumerated activities.  He was changing a sign which is more akin to routine maintenance than any protected activity and thus, he does not have a § 240(1) case.  Recall that changing a sign on a billboard, which does not entail physical change to the supporting structure, is similarly not a § 240(1) case.
 
In our fourth offering this month, we have a homeowner who has hired an electrician to install a new light fixture in his home.  When the electrician arrives and looks at the house, he is baffled on how he could possibly get to the ceiling to install the fixture.  The homeowner, a frustrated engineer, has an idea.  He gets his step ladder and some zip ties and suggests that the step ladder could be attached to the side of the electrician’s extension ladder and leaned against the wall to allow the work to be done.  As the work is being done, the ladder shifts causing the plaintiff to lose his balance and fall.  § 240(1)?
 
 
 
The homeowner, a regular reader of Labor Law Pointers, has no concern when sued.  He announces to this attorney that he should call over to Hurwitz & Fine because those attorneys on the Labor Law Team know what they are doing, and they will explain the homeowner exception to that nasty plaintiff’s attorney and the case will be discontinued in minutes.  The reality of the situation is explained to the homeowner, and he becomes upset.  The plaintiff has a prima facie case for sure.  The plaintiff is a person so employed.  The task is construction or alteration, take your pick.  The plaintiff is injured by the effects of gravity.  The homeowner had forgotten a critical element of the homeowner’s exception; to qualify, the homeowner must be one “who contracts for but does not direct or control the work.”  Here, the homeowner devised the plan which caused the injury and thus, he is not going to get out of this case.  It is so true that a little knowledge is a dangerous thing.
 
That is all for this month. Please stay safe and feel free to reach out with any “situations,” even if just to confirm what you already know and say hi.  We hope to see many of you during our seminar on the GOL and its applicability to the Labor Law.

Stay safe.

David

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

Don’t forget to subscribe to our other publications:

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

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

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

Premises Pointers This monthly electronic newsletter covers current cases, trends and developments involving premises liability and general litigation. Our attorneys must stay abreast of new cases and trends across New York in both State and Federal Court, and will now share their insight and analysis with you. This publication covers a wide range of topics including retail, restaurant and hospitality liability, slip and fall accidents, snow and ice claims, storm in progress, inadequate/negligent security, inadequate maintenance and negligent repair, service contracts, elevator and escalator accidents, swimming pool and recreational accidents, negligent supervision, assumption of risk, tavern owner and dram shop liability, homeowner liability and toxic exposures (just to name a few!).  Contact Jody Briandi at [email protected]  to be added to the mailing list.

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

 

Mendriski v New York City Hous. Auth.
December 01, 2020
Appellate Division, First Department

 
Plaintiff was working on a ladder, when his supervisor pulled on a vacuum extension cord, which had wrapped around the foot of the ladder, yanking the ladder from underneath him. Plaintiff was performing renovation work on property owned by NYCHA, which had retained plaintiff's employer, nonparty Rockmore, as the general contractor, and defendant URS as the construction manager. The trial court granted defendant URS’s motion for summary judgment dismissing the Labor Law § 200 claim. 
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed the trial court’s order granting URS summary judgment dismissing plaintiff’s Labor Law § 200 claim. It was undisputed the accident arose out of the means and methods of plaintiff’s work, and there was no evidence that URS controlled or exercised supervisory authority over how plaintiff performed his work. In fact, URS’s contract expressly provided that URS was not responsible for the means and methods of Rockmore’s work. Instead, the evidence established that URS had only general supervisory authority over the worksite and did not control the manner in which the injury-producing work was being performed.
 
 

Valdez v City of New York
December 01, 2020
Appellate Division, First Department

 
Plaintiff allegedly was injured while pointing bricks at defendants’ school when the inverted milk crate on which he was standing atop planks of a scaffold shifted unexpectedly, causing him to fall backward and strike his head on a bar of the scaffold. The trial court granted plaintiff's motion for summary judgment on his Labor Law § 240(1) claim.
 
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed as plaintiff’s testimony established prima facie that his work exposed him to an elevation-related risk against which defendants failed to provide him proper protection. Defendants failed to submit evidence that plaintiff was ever specifically instructed to use a ladder, or the scaffold’s bicycle (outrigger) to raise the scaffold to an appropriate height.
 
PRACTICE POINT: If you are opposing a plaintiff’s summary judgment motion by pointing out that plaintiff was the only witness to his accident, (1) be factually correct, and (2) controvert plaintiff’s account of the accident or call his credibility into question with evidence in the record.
 
 

Ciborowski v 228 Thompson Realty, LLC
December 03, 2020
Appellate Division, First Department

 
Plaintiff was standing on a ladder to paint a wall when it wobbled and caused him to lose his balance and fall. The trial court granted plaintiff's summary judgment motion on his Labor Law § 240(1) claim.
 
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed, as plaintiff established a violation of the statute and his injury was proximately caused by that violation. Defendant failed to raise an issue of fact as to whether plaintiff slipped or whether his own actions caused the ladder to move.
 
PRACTICE POINT: When submitting an expert affidavit in opposition to a summary judgment motion in a fall-from-a-ladder case, it may help if your liability expert actually examines the ladder.
 
 

Guity v 400 Great Neck Rd. Realty, LLC
December 03, 2020
Appellate Division, First Department

 
Plaintiff was injured while performing demolition work at defendant's premises, when he fell through a partially collapsed roof. The trial court granted plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim against defendant Nicolia's LLC.
 
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed, as plaintiff was injured while performing demolition work at defendant’s premises and was not provided with proper safety equipment to protect him against the elevation-related risk. The unsigned, unverified letter defendant relied upon in opposition, which is purported to set forth a contradictory account of how the accident occurred, was held not admissible, and, in any event, fails to raise a triable issue of fact.
 
PRACTICE POINT: In order to raise an issue of fact on plaintiff’s summary judgment motion, a defendant must submit proof, in evidentiary form, that is not speculative.
 
 

Stigall v State of New York
December 03, 2020
Appellate Division, First Department

 
Claimant was walking on an I-beam, during renovation work on a portion of the Major Deegan Expressway, when he tripped on a surveyor's retractable lanyard and fell off the beam. His right shoulder struck the beam on the way down, and his left foot struck a steel deck that was erected about 8 to 10 feet below the beam, before his body was pulled back up by his lanyard, which was attached to a safety cable above, resulting in his dangling about two feet above the deck. The safety cable to which he anchored his lanyard was set up about three feet above the surface of the beam.
 
He alleges that his injuries were caused by the safety cable being positioned too low, preventing the lanyard from properly deploying, and causing his foot to strike the deck. Defendant, State of New York, owned the Expressway, and had retained claimant’s employer, nonparty Tully Construction, to rehabilitate the structural iron. The Court of Claims denied claimants’ motion for partial summary judgment on the Labor Law §§ 240(1) and 241(6) claims. 
 
Labor Law § 240(1) (MAS)
The First Department reversed the Court of Claims and held claimant was entitled to summary judgment under § 240(1) because the record shows the safety cable was set up too low, resulting in claimant’s striking the deck before the lanyard could deploy. The Court rejected defendant’s contention that a triable issue of fact exists as to whether the injuries were proximately caused by claimant striking the beam on his way down, or the safety cable’s improper height. Although claimant testified his shoulder struck the beam as he fell, he also testified that the low anchor point resulted in his left foot hitting the deck and his body to sustain injuries due to whiplash.
 
PRACTICE POINT:  Where the safety devices that were provided “proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity” (Ross v Curtis-Palmer-Hydro-Elec. Co., 81 NY2d 493, 501 [1993]), courts will grant plaintiff summary judgment under Labor Law § 240(1).
 
Labor Law § 241(6) (TPW)
As to Labor Law § 241(6), the First Department also unanimously reversed, although it noted that the finding was academic, given its determination on Labor Law § 240(1). Plaintiff should have been entitled to summary judgment based upon Industrial Code § 23-1.16(b), which requires safety devices to “be so arranged that if the user should fall such fall shall not exceed five feet.”  Given that plaintiff fell more than five feet before he struck the deck below, the Code was deemed violated. The Court did not address the applicability of Industrial Code § 23-1.7(e)(1).
 
 

Rudnitsky v Macy's Real Estate, LLC
December 08, 2020
Appellate Division, First Department

 
Plaintiff tripped over a two-by-four piece of lumber wrapped in orange construction netting at the top of a staircase during the renovation of a Macy’s department store. Plaintiff was employed by third-party defendant electrical subcontractor Shorr. The trial court granted plaintiff's summary judgment motion on his Labor Law § 241(6) claim based on Industrial Code (12 NYCRR) § 23-1.7(e)(2) and denied defendant Structure Tone's motion to dismiss that claim.
 
The trial court also granted third-party defendant Shorr's motion for summary judgment dismissing Structure Tone's claim against it for attorneys' fees, granted fourth-party defendant Commodore’s motion for summary judgment dismissing Structure Tone’s and Shorr's common-law and contractual indemnification and contribution claims against it, denied Shorr's motion for summary judgment on its common-law indemnification claim against Commodore, and granted Structure Tone's motion for summary judgment on its claims against Shorr for contractual indemnification and breach of contract for failure to procure insurance
 
Labor Law § 241(6) (TPW)
The First Department reversed the Trial Court’s grant of plaintiff’s motion for summary judgment on Labor Law § 241(6) based on Industrial Code § 23-1.7(e)(2) (Protection from General Hazards).  A question of fact was found as to whether the work area was free of debris and scattered tools and materials “insofar as may be consistent with the work being performed” as required by the Code.
 
The staircase, which was still under construction, it wasbarricaded on three of four sides with an ironworker working on the fourth side. As plaintiff approached, he tripped over a two-by-four.  Under the circumstances, issues of fact were found to exist as to whether the two-by-four over which plaintiff tripped was part of the barricade blocking the staircase opening. Thus, it could not be determined as a matter of law that the condition that caused plaintiff to trip or slip was not intentionally placed in the work area and integral to the work being performed.
 
Indemnity Issues in Labor Law (BFM)
As the accident arose from plantiff's performance of his work as an employee of Shorr, the First Department held Shorr's duty to indemnify Structure Tone pursuant to the Blanket Insurance/Indemnity Agreement incorporated into its subcontract was triggered. The Court noted that Shorr's indemnity obligation under the agreement required it to indemnify Structure Tone for legal fees.

Of note, the Court held that the certificate of insurance relied on by Shorr in support of its claim that it complied with the insurance procurement provisions of the agreement was insufficient to establish the existence of such insurance. 
 
Lastly, as there were issues of fact as to whether Commodore was negligent and whether the accident arose from its work or its acts or omissions, the Court denied its motion for summary judgment, which sought to dismiss Structure Tone's and Shorr's common-law and contractual indemnification and contribution claims against it.
 
 

Garces v Windsor Plaza, LLC.
December 15, 2020
Appellate Division, First Department

 
Plaintiff submitted his uncontradicted testimony that he fell off a metal A-frame ladder that was shaking and leaned unevenly toward one of its legs, which lacked a rubber protective foot causing him to be injured. The trial court granted plaintiff's motion for partial summary judgment under Labor Law § 240(1), denied Everest’s motion for summary judgment dismissing the §§ 240(1), 200, and common-law negligence claims against it, and granted Everest’s motion for summary judgment on its contractual indemnification cross claim against defendant Clarke. 
 
Labor Law § 240(1) (MAS)
The First Department affirmed summary judgment in favor of plaintiff, who established Everest’s liability as a contractor under Labor Law § 240(1) as it had the authority to control the activity bringing about the injury, although it did not actually do so. The Court also held Clarke failed to raise an issue of fact as to whether plaintiff’s failure to use a different ladder was the sole proximate cause of his injuries. Plaintiff testified that he complained to his supervisor that the ladder was shaking when he used it earlier on the day of his accident and that his supervisor responded by ordering him to continue using the ladder.
 
PRACTICE POINT: To establish a sole proximate cause defense such that a defendant has no liability under Labor Law § 240(1), it must prove 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, even if an adequate ladder was readily available on the site, Clarke failed to show that plaintiff knew that he was expected to use it, or that he chose not to do so for no good reason.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department reversed the trial court’s order and granted Everest summary judgment dismissing plaintiff’s Labor Law § 200 and common-law negligence claims. The accident was caused by the means and methods of plaintiff’s work, and Everest established it did not exercise supervision or control over that work, as plaintiff was directed solely by his supervisor.
 
Indemnity Issues in Labor Law (BFM)
As Everest failed to authenticate the purported contract, the First Department found that Everest failed to establish its entitlement to summary judgment on its cross claim against Clarke for contractual indemnification.
 
 

Ixcoy v Pavlou
December 15, 2020
Appellate Division, First Department

 
Plaintiff was injured when, while cleaning an exterior exhaust fan on the unsecured, angled roof of a commercial premises, without any safety device, he allegedly slipped on ice which had formed on the rooftop and fell approximately twelve feet to the ground. Plaintiff’s and his coworker’s work required the use of a rope, pressure hose, pistol gun and chemicals, and prior to the accident plaintiff had received training as to the proper cleaning procedure. The trial court granted plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim.  
 
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed as the trial court properly determined that plaintiff’s work constituted “cleaning” within the meaning of Labor Law § 240(1), and there is no dispute that plaintiff was not supplied with any safety devices while working at an elevation, which was a proximate cause of his injuries.
 
PRACTICE POINT: Remember, “Cleaning” is a protected activity under Labor Law § 240(1).  “Routine maintenance,” by contrast, is not a protected activity.  As you will see below, where it can be argued the plaintiff was engaged in “routine maintenance,” § 240(1) liability potentially can be avoided.
 
 

Jones v New York & Presbyt. Hosp.
December 15, 2020
Appellate Division, First Department

 
Plaintiff was employed as a laborer by non-party Turner, the general contractor for a new high rise hospital building. Running along the south side of approximately half of east 69th Street, from York Avenue to First Avenue, was a massive, high, barrier-enclosed security perimeter for the work area, which abutted the building under construction. As this was a defined narrow space inside the erected structure, and the only one available to get to appellant’s garbage pail, he had no choice but to use it to get from point A to point B.
 
Plaintiff testified, on the date of the subject incident, he tripped on a rope attached on one end to a heavy construction device known as a guardrail lock, which was laying flat on the floor, fell and was seriously injured. The other end of the rope was attached to a chain-link fence positioned above an improperly used barricade.
 
The trial court denied plaintiff's motion for partial summary judgment on his Labor Law § 241(6) claim pursuant to an order striking defendant’s answer for purported discovery violations and spoliation, and for an order of contempt against a nonparty witness. 
 
Labor Law § 241(6) (TPW)
The First Department unanimously affirmed, finding questions of fact existed such that summary resolution of plaintiff’s Labor Law § 241(6) claim in his favor was unwarranted. Specifically, there were issues of fact as to whether the specific location of the accident fell within the scope Industrial Code § 23-1.7(e)(1) and whether the rope alleged to have caused the accident was an integral part of the work.
 
 

Trinidad v Turner Constr. Co.
December 15, 2020
Appellate Division, First Department

 
Plaintiff was pushing a container of cinderblocks down a hallway when the front wheel of the container rolled over a piece of plywood covering a three-inch-wide gap in the floor, and the plywood broke. The wheel fell into the gap, and the container tipped forward, spilling its contents and propelling plaintiff into the air, head-over-heels, past the container onto his back on the spilled contents on the floor. The trial court granted defendant’s motion for summary judgment dismissing the Labor Law §§ 241(6), 200, and common-law negligence claims and denied plaintiff’s cross motion for leave to amend his bill of particulars to assert a violation of Industrial Code (12 NYCRR) § 23-1.7(e)(1).
 
Labor Law § 241(6) (TPW)
The First Department unanimously reversed holding Industrial Code § 23-1.7(e)(1) was applicable to these facts as an inadequately protected gap in the floor of a passageway at a construction site which causes a container, dumpster, or the like to become stuck or otherwise lose its balance and trip, slip, or fall violates the Industrial Code and can serve as a predicate for a Labor Law § 241(6) claim.  Further, defendant failed to show that it would have been prejudiced by an amendment of the bill of particulars to assert a violation of this provision of the Industrial Code. 
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department reversed the trial court’s order granting defendant’s motion for summary judgment as to Labor Law § 200 and common-law negligence. This was a “hazardous condition on the premises” case (rather than “means and methods of the work”). Defendant failed to establish that it neither created nor had [actual or constructive] notice of the dangerous condition of the hallway floor from which plaintiff’s claims arose. The testimony of defendant’s superintendent, that he was unaware of any previous accidents or complaints concerning the area in which plaintiff's accident occurred, conflicted with plaintiff’s testimony that there had been a similar accident in that location. Moreover, defendant submitted no evidence showing when the site had last been inspected before the accident. Accordingly, the First Department held the motion should have been denied.
 
 

Tsongas v Apex Constr./Masonry Corp.
December 15, 2020
Appellate Division, First Department

 
Plaintiff was allegedly injured when he fell into a hole dug by employees of codefendant Apex in the backyard of the homeowner defendants’ home during renovation of the premises. The hole was created for the purpose of building the foundation for a deck. The Homeowner Defendants hired nonparty IA Construction as the general contractor, which subcontracted part of the work to Apex; plaintiff was an employee of IA Construction. The trial court denied the Homeowner Defendants’ summary judgment motion to dismiss the Labor Law § 200 and common-law negligence claims. 
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department reversed the trial court’s order denying defendant’s motion for summary judgment as to Labor Law § 200 and common-law negligence. Here, plaintiff's accident arose from the means and methods of Apex's work, not a defective premises condition. Consequently, the dispositive issue was whether the Homeowner Defendants had authority to exercise supervisory control over the injury-producing work, not whether they created or had notice of the hazardous condition. The record established that they had no such authority, as it was undisputed the Homeowner Defendants lived offsite during the renovation project and had no involvement with the work, and Apex’s owner testified the homeowners did not direct or control its work.
 
 

One Bryant Park v Permasteelisa Cladding Tech., Ltd
December 17, 2020
Appellate Division, First Department

 
Defendants agreed to indemnify plaintiffs for damages and litigation costs connected to claims for physical injury, so long as they or their subcontractors were negligent. Plaintiff Durst Development, LLC was not found liable, having been dismissed from the underlying action before the jury reached a verdict. The Court previously found that Plaintiffs One Bryant Park and Tishman Construction Corp. did not prove, on summary judgment, lack of constructive notice of the hole, and the jury subsequently found them jointly liable under Labor Law § 200.
 
Indemnity Issues in Labor Law (BFM)
Defendants agreed to defend and indemnify plaintiffs for damages and litigation costs connected to claims for physical injury, so long as they or their subcontractors were negligent. As issues of fact existed as to whether defendants’ subcontractor, Tower Installations (“Tower”), had constructive notice of an uncovered drain hole in the floor that caused its employee’s injury, and whether Tower exercised control over the room where the hole was located, the First Department held that the plaintiff’s claims for contractual indemnification claim should not have been dismissed. The Court further held that the contractual indemnification provision at issue did not violate public policy, as it precluded plaintiffs’ recovery of damages attributable to their own negligence.
 
As an issue of fact was found to exist regarding whether defendants may have contributed to the Tower employee’s alleged injuries by breaching a duty to ensure the safety of its subcontractors’ employee, the Court found that the common-law contribution claim should not have been dismissed. Lastly, the Court determined the common-law indemnification claim was properly dismissed as the plaintiffs, One Bryant Park and Tishman, failed to prove lack of constructive notice of the hole and the jury subsequently found them jointly liable under Labor Law § 200.
 
 

Valle v Port Auth. of N.Y. & N.J.
December 17, 2020
Appellate Division, First Department

 
Plaintiff allegedly was injured when a stack of cement boards fell off a City Lumber truck and onto him after the wooden skids underneath the boards broke. The trial court denied defendants’ motion for summary judgment dismissing the Labor Law § 200 claim as against them, granted plaintiffs’ cross-motion for summary judgment on the Labor Law § 240(1) claim as against the Port Authority and Turner, and denied defendant/third-party defendant City Lumber’s motion for summary judgment dismissing the common-law negligence claim against it as well as the third-party claims for contractual indemnification, common-law indemnification, and contribution.
 
Labor Law § 240(1) (MAS)
The majority held that no one was entitled to summary judgment as it is for the jury to consider the numerous events giving rise to plaintiff’s accident, some disputed, and decide which was a proximate cause of the accident. The potential causes included: Turner’s alleged refusal to allow a street level hoist, rather than trucks, to be used for deliveries to the subbasement levels; City Lumber’s alleged improper loading of the delivery truck; the City Lumber truck driver’s alleged excessive speed as he drove the truck down the ramp; and whether workplace timing exigencies forced plaintiff’s hand in directing the unloading of the unsettled concrete boards. The Court further found Port Authority and Turner failed to demonstrate that plaintiff was the sole proximate cause of the accident.
 
Justice Manzanet-Daniels’ dissent would grant plaintiff’s cross-motion for summary judgment as “defendants have been shown to bear some degree of fault for defendant’s accident.” The record establishes that the load of cement board that was being moved off the truck was not properly secured; alternatively, the failure to provide adequate hoisting equipment constituted a violation. Under either theory, it cannot be said that an issue of fact exists as to whether plaintiff was the sole proximate cause of his accident. The dissent also found defendants’ argument absurd that plaintiff should have simply rejected the load and sent it back to City Lumber.
 
 
Labor Law § 241(6) (TPW)
The First Department concluded it was without jurisdiction to consider Port Authority and Turner’s arguments as to the Labor Law § 241(6) claim, since their notice of appeal limited the appeal to the grant of plaintiff’s motion pursuant to Labor Law § 240(1) and the denial of their motion with respect to Labor Law § 200. 
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department held issues of fact also remain as to whether the Port Authority and Turner are liable for plaintiff’s accident under § 200, either because they directed that deliveries be made directly to the subbasement level, instead of being made at street level and then lowered down by hoist, or because of a dangerous condition of the premises, i.e., the concrete covered pipe that the City Lumber truck ran over in making the delivery.
 
Indemnity Issues in Labor Law (BFM)
As neither Port Authority nor Turner entered into a contract with City Lumber, the First Department reversed the trial court and held the third-party claim against City Lumber for contractual indemnification must be dismissed. However, due to the existence of issues of fact, the Court held the third-party claims for common-law indemnication and contribution should not be dismissed.

 

Clarke v Empire Gen. Contr. & Painting Corp.
December 22, 2020
Appellate Division, First Department

 
Plaintiff allegedly was injured when, while dismantling a scaffold in an elevator shaft of a building under renovation, he fell from the scaffold to the bottom of the shaft. The trial court granted plaintiff's motion for summary judgment on his Labor Law § 240(1) claim and § 241(6) claim based on Industrial Code (12 NYCRR) § 23-1.7(b)(1)(i) and (iii), granted Lough Allen’s motion for summary judgment dismissing the common-law indemnification and contribution claims as against it, granted Pen & Brush’s motion for summary judgment on its contractual indemnification claim against Empire, and denied Empire’s motion for summary judgment dismissing plaintiff's purported claim for total and permanent disability.
 
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed summary judgment for plaintiff as he testified his employer instructed him to dismantle the scaffold and the sole support for Empire’s contention that dismantling the scaffold was outside the scope of his duties was inadmissible hearsay.
 
PRACTICE POINT: Remember that although hearsay can be considered in opposition to a summary judgment motion, it cannot be used to defeat summary judgment where, as here, it is the only evidence upon which denial is sought.
 
Labor Law § 241(6) (TPW)
Without specifically addressing the elements of Industrial Code §§ 23-1.7(b)(1)(i) and (iii), the First Department affirmed the trial court’s grant of plaintiff’s summary judgment motion, noting that defendants failed to raise a question of fact as to whether plaintiff was the sole proximate cause of his accident, whether he was a recalcitrant worker, or whether he was acting outside the scope of his duties.
 
Indemnity Issues in Labor Law (BFM)
Pursuant to the contract between Empire and Pen & Brush, Empire agreed to indemnify Pen & Brush for damages, “arising from any act, omission, negligence, potential claims and losses” of, inter alia, Empire or its subcontractors “during the performance of the Contract.” The First Department found the indemnity provision was triggered as plaintiff's injuries arose from the act of Empire’s subcontractor in dismantling the scaffold and that a finding of negligence was not required.
 
The Court agreed with the trial court that dismissal of the common-law indemnification and contribution claims against Lough Allen was proper as plaintiff had not sustained a grave injury.
 
 

Franco v 1221 Ave. Holdings, LLC
December 22, 2020
Appellate Division, First Department

 
Plaintiff's allegedly was injured during demolition work when an unsecured pipe fell from the ceiling and struck him, knocking him off a ladder. The trial court granted plaintiff's motion for summary judgment on the Labor Law § 240(1) claim. 
 
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed as the evidence established prima facie that plaintiff’s injuries resulted “directly from the application of the force of gravity” and that, having failed to provide proper safety devices, defendants are liable for plaintiff’s injuries. Regardless of whether plaintiff was on a ladder, as he testified, or standing on the floor as his foreman claimed; it is undisputed that he was struck by a pipe that fell from the ceiling and that he was not supplied with adequate protection from the resulting harm.
 
PRACTICE POINT: In this case, plaintiff’s position on a ladder (or not) was a bit of a red herring.  Either way, he got hit with a falling object.  The question is whether the pipe that fell from the ceiling required hoisting or securing for purposes of the work being performed.  In this case, the Court found that it did.
 
 

Morera v New York City Tr. Auth.
December 22, 2020
Appellate Division, First Department

 
Plaintiff was about 15-to-17 feet above ground, on a 24-foot ladder, cleaning the windows inside a building owned and managed by defendants, WWP and George Comfort, when a ceiling tile suddenly fell and struck him, causing the ladder to tip backward away from the wall against which it had been leaning. Although the ladder fell against the opposite wall, plaintiff fell off the ladder and was thrown to the ground below. When the accident occurred, the ladder was being held steady at the bottom by a coworker, but was otherwise unsecured. The trial court denied FQM’s motion for summary judgment dismissing the third-party complaint and on its counterclaims for common-law and contractual indemnity against defendants Comfort & Sons and WWP.
 
Indemnity Issues in Labor Law (BFM)
Having previously found issues of fact as to whether the equipment provided to plaintiff by FQM was adequate for the job of washing windows, or whether plaintiff’s fall was caused solely by a falling tile, the First Department held issues of fact existed as to whether the indemnity clause in the Consulting Agreement between the parties was triggered and whether the clause violated GOL § 5-322.1. As such, the Court found the parties’ claims for contractual and common law indemnity against each other to be premature.
 
As it was defendants who were obligated to purchase insurance to benefit FQM under the Consulting Agreement, the Court found that their claim against FQM for breach of a contractual insurance procurement clause should be dismissed. As the accident did not arise out of a second agreement between the parties, the insurance procurement clause therein was not triggered.
 
 

Fuller v KFG L& I, LLC
December 29, 2020
Appellate Division, First Department

 
Plaintiff, a maintenance worker, was instructed by his boss to replace panels on the side of an air conditioning unit on the roof. He never engaged in such work before and similar projects were caried out by contractors. To remove and replace the panels, plaintiff climbed a six-foot ladder to a “catwalk” above the roof and fell off the catwalk while handing one of the panels to his coworker.
 
KFG Land moved for summary judgment after the parties exchanged extensive discovery, including documents and depositions. Among those deposed was Charles-Edouard Gros. Gros testified and also provided sworn affidavits regarding three limited liability companies that were formed. Gros is a managing member of nonparty Hopkins, and Hopkins is the member of each of the other two LLCs, defendant, KFG Land and KFG Operating. KFG Operating is plaintiff's employer and the nursing facility is now known as the Hopkins Center. KFG Land is a single purpose limited liability company that was formed to hold title ownership to the real property. KFG Operating staffs, operates, and maintains the nursing facility.
 
Plaintiff filed for and received Workers' Compensation (WC) benefits under the policy that KFG Operating maintains for the benefits of the employees. Gros testified that KFG Land does not have any employees and that its business is ownership of the property. KFG Land does not maintain its own WC policy, because it has no one to insure. The trial court granted defendant’s motion for summary judgment dismissing the Labor Law § 240(1) claim based on WC §§ 11 and 29(6)’s exclusivity provisions and denied the motion as to the common-law negligence claim. 
 
Labor Law § 240(1) (MAS)
The WC exclusivity defense is available where the relationship among business entities is so close that they are really alter egos of one another. The defense is also available in situations where plaintiff’s employer and defendant have functioned as one company so that two or more companies function much as joint ventures. A general employee of one employer may also be in the special employ of another notwithstanding the general employer’s responsibility for payment of wages and for maintaining WC and other employee benefits. Consequently, the employee’s exclusive remedy against the entities forming the joint venture is WC.
 
Here, both the majority and dissent agree that defendant and plaintiff’s employer constitute a single integrated entity, as they share a common owner. The majority holds that defendant and plaintiff’s employer were formed for the same purpose, filed taxes through Hopkins, had common administrative and managing personnel and the same business address, or held themselves out to the public as an integrated entity. The majority alternatively finds that defendant is exempt from liability because it established that it had formed a joint venture with plaintiff’s employer.
 
Justice Gesmer’s dissent would not find an alter-ego relationship and would affirm the trial court’s denial of defendant’s summary judgment motion based on the exclusivity defense. The dissent finds multiple contradictory and conflicting statement about the management of the three entities and Gros’s own role in them. The record demonstrates that defendant and plaintiff’s employer share a common owner, Hopkins, but the dissent finds no proof that Hopkins managed either entity, or that either plaintiff’s employer or defendant managed the other. The dissent also disagrees with the majority’s finding that the two entities were created for the same purposes. The fact that one entity owned property where the other ran its business does not establish an alter ego relationship.
 
The dissent also found questions of fact on the issue of whether plaintiff was engaged in “repair’ work under Labor Law § 240(1) or routine maintenance at the time of his accident. The panels were untouched for four or five years and were only installed because of noise complaints from neighbors. Accordingly, the installation of the panels was neither a recurring event nor maintenance and the dissent finds that defendant failed to establish as a matter of law that plaintiff was not engaged in repair work at the time he fell. The dissent further finds that plaintiff also raised an issue of fact whether he was engaged in the alteration of a structure at the time he fell.
 
PRACTICE POINT: Although the issue of alter ego/special employee is usually a question of fact, the determination of special employment status may be made as a matter of law where the particular, undisputed critical facts compel that conclusion. Many factors are considered in deciding whether a special employment relationship exists, and no single one is typically decisive, including who has the right to control the employee’s work, who is responsible for the payment of wages and the furnishing of equipment, who has the right to discharge the employee, and whether the work being performed was in furtherance of the special employer’s or the general employer’s business. The most significant factor is who controls and directs the manner, details, and ultimate result of the employee’s work.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department reversed the trial court’s order denying defendant’s motion for summary judgment as to common-law negligence. As discussed above with regard to Labor Law § 240(1), this was based on the Workers’ Compensation Law exclusivity defense. However, the dissent noted that it still would have dismissed the common-law negligence claim, as defendant demonstrated it was an out-of-possession landlord, and plaintiff failed to demonstrate a significant structural or design defect on the premises that is contrary to a specific statutory safety provision.


 
McCullough v One Bryant Park
December 29, 2020
Appellate Division, First Department

 
Plaintiff tripped over an uncovered passageway at a building under construction. Owner OBP and construction manager Tishman were found liable for negligence under Labor Law §§ 241(6) and 200. Component was also found to have been negligent. The trial court adhered to a previous order, denying OBP’s and Tishman’s motion (i) to set aside the jury verdict that found OBP and Tishman 90% liable for plaintiff’s worksite injury, and plaintiff and defendant Component each 5% liable, (ii) for a directed verdict dismissing the Labor Law § 200 claim as against OBP, and (iii) to reduce the award for future medical expenses, pre-trial lost earnings, and pain and suffering, and reduced the award for future lost earnings only to the extent to which the parties stipulated.
 
Labor Law § 241(6) (TPW)
The First Department unanimously affirmed the trial court’s decision to deny the motions, without addressing Labor Law § 241(6) but rather focused on the sufficient evidence to support the jury award.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed the trial court’s order denying a directed verdict on the Labor Law § 200 claim against OBP because, by presenting to the jury the issue of its liability jointly with Tishman, OBP conceded that the evidence of Tishman’s actual or constructive notice would be evidence of notice to OBP as well. 
 
 

Potenzo v City of New York
December 29, 2020
Appellate Division, First Department

 
Plaintiff was allegedly injured when he slipped and fell while walking within the fenced-in area from the guard booth to his work siteat a construction project in the Bronx. The trial court denied plaintiff's motion for partial summary judgment against defendants the City of New York and Tishman on the Labor Law § 241(6) claim. 
 
Labor Law § 241(6) (TPW)
The First Department reversed and granted plaintiff’s motion as to his Labor Law § 241(6) claim predicated on violation of Industrial Code §§ 23-1.7(d).  The Court reiterated § 23-1.7(d) provides, in pertinent part, that no employee shall be permitted “to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition” and requires the removal of any “[i]ce, snow, water, grease and any other foreign substance which may cause slippery footing.”
 
Here, plaintiff’s accident occurred while he was walking on a path in the fenced-in area that was frequented by workers, which should have been kept clear of snow,  ice, and any other slippery conditions for the protection of workers. Thus, the record sufficiently demonstrated plaintiff slipped on a walkway covered with ice and snow, which hazard was covered under § 23-1.7(d).
 
 

Bulux v Moran
December 2, 2020
Appellate Division, Second Department

 
Plaintiff, a roof mechanic employed by Diplomat, was working at defendant’s premises. While using a nail gun to attach plywood to the beams on the roof of the premises, plaintiff slipped and fell. As plaintiff fell, he shot himself in the knee with the nail gun. The trial court denied defendant’s motion to dismiss plaintiff’s complaint based on the homeowners’ exemption.
 
Labor Law § 240(1) (MAS)
The Second Department affirmed. It held defendant demonstrated that he was entitled to the exemption by submitting evidence that he was the owner of a one-family dwelling and that he did not direct or control the work being performed. However, in opposition, plaintiff raised triable issues of fact as to whether the aim of the construction was to further a commercial enterprise and whether defendant directed or controlled the work.
 
PRACTICE POINT: Courts consider different factors in determining whether the homeowners’ exemption applies in a particular case, such as the nature and purpose of the work being contracted for, the commercial versus residential use of the property, and whether the homeowner resides at the premises. If the property is used for both commercial and residential purposes, then you need to evaluate and determine whether the primary use of the structure is as a residence or a business.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed denial of defendant’s motion for summary judgment as to Labor Law § 200 and common-law negligence. This was a “means and methods” case. As such, an owner or a contractor will not be held liable under Labor Law § 200 unless it had the authority to supervise or control the performance of the work. Here, plaintiff raised a triable issue of fact as to whether defendant had the authority to supervise or control the means and methods by which plaintiff performed his work. Accordingly, the motion properly was denied.

 

Deangelis v Franklin Plaza Apts., Inc.
December 2, 2020
Appellate Division, Second Department

 
Plaintiff, an employee of a company contracted by defendant Franklin Plaza to maintain its boilers, was dispatched to prepare and test the boilers for an upcoming city inspection. During his work, plaintiff used an extension ladder to access the top of a boiler and was injured when the ladder fell to the ground. The trial court granted defendants’ summary judgment motion to dismiss the Labor Law §§ 240(1) and 241(6) claims and denied plaintiff’s cross motion for summary judgment on the Labor Law § 240(1) claim.
 
Labor Law § 240(1) (MAS)
The Second Department affirmed as defendants demonstrated their prima facie entitlement to judgment as a matter of law by establishing that plaintiff was not performing a repair or alteration when he was injured and, instead, was engaged in routine maintenance. The Court also held defendant’s evidence showed that plaintiff’s work “involved replacing components that require replacement in the course of normal wear and tear” and did not constitute “repairing,”  “altering,” or any other enumerated activity.
 
PRACTICE POINT: Courts hold that work constitutes routine maintenance where the work involves replacing components that require replacement in the course of normal wear and tear. If the work requires making a significant physical change to the configuration or composition of the building or structure, then it constitutes “altering” within the meaning of Labor Law § 240(1).
 
Labor Law § 241(6) (TPW)
The Second Department affirmed and found plaintiff’s work to prepare and test the boilers for an upcoming city inspection was not a protected activity under the Labor Law. Without addressing any specific Industrial Code section, the Court noted that plaintiff was dispatched to prepare the boilers every three years, and that his work consisted of testing the boilers’ efficiency, cleaning parts, and replacing worn out parts, which included replacing components that require replacement in the course of normal wear and tear, and did not constitute “repairing,” “altering,” or any other enumerated activity protected by the Labor Law.
 
 

Cremona v Venture Holding & Mgt. Corp.
December 9, 2020
Appellate Division, Second Department

 
Plaintiff allegedly was injured when he fell ten to twelve feet to the ground from a ladder while servicing a malfunctioning alarm system component on a building. He testified that as a field technician for an alarm systems company, he had responded to defendant’s premises, where he was given a worksheet that stated he was to “replace two bad magnetic switches and adjust four magnets.” According to defendants’ owner, the alarm company was retained to “service and maintain the alarm system and the central station communication between the security system and the fire alarms.” The trial court denied plaintiff’s motion for summary judgment on the Labor Law § 240(1) claim and granted defendants’ cross-motion for summary judgment.
 
Labor Law § 240(1) (MAS)
In determining whether a particular activity constitutes “repairing,” courts are careful to distinguish between repairs and routine maintenance. Here, the Second Department affirmed dismissal of the claim as the record demonstrated that when plaintiff was injured, he was engaged in work that constituted routine maintenance. The Court held the evidence showed that plaintiff’s work “involved replacing components that require replacement in the course of normal wear and tear” and did not constitute “repairing” nor any other enumerated activity.
 
PRACTICE POINT: Interestingly, the Second Department found plaintiff’s deposition testimony that he had to unscrew “hard wired contact[s]” and strip the wires with “a screwdriver and a pair of dikes” did not raise a triable issue of fact, finding this was not established to be an action outside the umbrella of regular maintenance of the alarm system.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed dismissal of plaintiff’s Labor Law § 200 and common-law negligence claims, holding defendants established they did not exercise supervision or control over the work giving rise to the accident, and plaintiff failed to raise a triable issue of fact.
 
 

Gomez v 670 Merrick Rd. Realty Corp.
December 16, 2020
Appellate Division, Second Department


Plaintiff was working at a building site owned by defendant Merrick and was employed by the general contractor Craig. The project involved the demolition and reconstruction of a portion of a one-story building. Both Merrick and defendant Cappy’s entered into a contract with Craig Mitchell Construction for the performance of the work. That contract was executed by Joseph Viscomi, the sole owner of both Merrick and Cappy’s. The contract indicated Viscomi executed the agreement as the "owner" of those entities.

Plaintiff was injured while attempting to reposition a cement "slab" that formed part of the ceiling or roof of this one-story building. He stood on a nine-foot A-frame ladder, while two coworkers were positioned on the ceiling or roof. From his position, plaintiff held one end of a large cement slab as his two coworkers pushed the 12-foot-long slab with a crowbar. Craig Mitchell, the owner of Craig Mitchell Construction, testified the slab was approximately six feet long, and weighed approximately 120 pounds. Plaintiff testified that as he was holding or attempting to move the slab, the ladder "moved" and the slab "fell" or dropped onto his hand, causing injuries. The trial court, in separate orders, granted Merrick’s and Cappy’s motion for summary judgment.

Labor Law § 240(1) (MAS)
The Second Department reversed and denied Merrick’s and Cappy’s motion for summary judgment as they failed to show, prima facie, that this incident did not involve an injury caused by the failure to provide a safety device to protect against an elevation-related risk, under Labor Law § 240(1). Plaintiff testified the ladder “moved” while he was reaching for the slab, causing the slab to fall or dop and alleges that a sling or other device should have been provided to secure the slab. Thus, defendants failed to show that this incident did not result from the failure to provide such safety device to protect against an elevation-related risk.
 
The Court also rejected Cappy’s claim that it was not an “owner” under the statute as the record showed that Cappy’s contracted with the general contractor to perform the work (Bell v Bengomo Realty, Inc., 36 AD3d 479 [1st Dept 2007]).
 
PRACTICE POINT: Lessees who hire a contractor and have the right to control the work being done are considered “owners” under Labor Law § 240(1).
 
Labor Law § 241(6) (TPW)
As to the Labor Law § 241(6) claim, the Second Department affirmed the trial court’s determination that plaintiff failed to establish liability under Industrial Code §§ 23-1.5(c) and 23-3.3.  Section 23-1.5(c) provides, as relevant here, that all “equipment” shall be kept in good repair.  While the section may have been applicable, the record contained no evidence showing that the crowbar in question was defective or not in good repair.
 
Further, section 23-3.3, sets forth certain requirements for demolition work, including the requirement of inspections for “weakened or deteriorated floors or walls or from loosened material.” However, defendant established that this accident “was not caused by structural instability that could have been noticed and addressed by further inspections but resulted from the planned performance” of the removal or repositioning of the cement slab, rendering the provision inapplicable. 
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed dismissal of plaintiff’s Labor Law § 200 and common-law negligence claims, finding the subject incident related to the means and manner of the work, rather than a premises condition. The record demonstrated the manager of Cappy's visited the site only to pay subcontractors. Viscomi, the owner of both Cappy’s and Merrick, rarely visited the site. According to Cappy’s manager, Craig Mitchell provided all supervision at this site, including matters related to safety. Plaintiff testified that on three occasions, he had seen a person at the site who he believed to be the owner. However, plaintiff had not ever spoken to that individual, and took all direction from Craig Mitchell. Based on this evidence, the Court held defendants showed that they did not exercise any supervision over the means and manner of the work.
 
 

Tomlinson v Demco Props. NY, LLC
December 16, 2020
Appellate Division, Second Department


Plaintiff, an independent contractor, was retained by defendant RAB to install internet, telephone, and cable television services for a tenant at a property owned by defendant Demco. RAB was a subcontractor of defendant Time Warner. Plaintiff utilized his own truck, tools, ladders, and equipment. He utilized his 28-foot extension ladder on the side of the house and was attempting to “put” a wire through a “P hook” which he had installed on the house.

He was allegedly injured when, in the course of attempting to free a cable wire that had become “stuck” on the “arch of the porch,” he stepped from a ladder onto a porch roof covered with snow and ice and fell. The trial court (1) granted the motion of Time Warner for summary judgment dismissing the amended complaint against it, (2) granted the separate motions of Demco and RAB for summary judgment dismissing the amended complaint against each of them, and (3) denied plaintiff's cross-motion for summary judgment on the Labor Law § 240(1) claim against Demco.

Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s determination to grant Time Warner and RAB summary judgment as they established plaintiff’s actions were the sole proximate cause of his injuries. The Court held plaintiff chose to step off the ladder and onto the porch roof to “get the wire to come loose.” He did so although he observed that the porch roof was covered with “a lot of snow.” The Court also dismissed Demco, who was unaware that a cable technician would be on the property and did not consent to service installation.
 
PRACTICE POINT: This case is a great example of sole proximate cause in the Second Department, as they are increasingly willing to grant summary judgment and dismiss Labor Law § 240(1) claims.  In this case, however, it helped that when plaintiff stepped off the ladder, he knew that he was stepping onto a snowy, sloped surface.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed dismissal of the Labor Law § 200 and common-law negligence claims. It noted plaintiff discontinued these causes of action insofar as asserted against Demco, and Time Warner and RAB were entitled to summary judgment in this “dangerous premises condition” case, as they demonstrated that they neither created the allegedly dangerous condition nor had actual or constructive notice of the condition.

 

Doran v JP Walsh Realty Group, LLC
December 23, 2020
Appellate Division, Second Department

 
Plaintiff was allegedly injured while performing tree-removal work in the course of his employment with Russ Tree Service. The trial court granted the separate motions of defendants JP Walsh Realty Group, Harbor Building, and McAvoy Construction for summary judgment dismissing the amended complaint against each of them.
 
Labor Law § 241(6) (TPW)
The Second Department affirmed the dismissal of the Labor Law § 241(6) claim. The scope of Labor Law § 241(6) is governed by § 23-1.4(b)(13), which defines construction work, and tree removal, by itself, does not fall within any of the enumerated categories. Although the Court noted that applicability of Labor Law § 241(6) is not limited to building sites, the work in which plaintiff was engaged must have affected the structural integrity of a building or structure, or have been an integral part of the construction of a building or structure. In contrast, plaintiff’s accident during tree removal work did not arise from construction, excavation, or demolition work within the meaning of Labor Law § 241(6) and, therefore, he was not engaged in an activity covered by the statute. Nevertheless, the Industrial Code provisions alleged to have been violated, § 23-1.7(d) and (e), were deemed inapplicable to the facts of this case.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed dismissal of the Labor Law § 200 and common-law negligence claims, finding the injuries in this case arose from the manner in which the work was performed, and not from a dangerous or defective premises condition. Instead, the dangerous condition alleged by plaintiffs was visible to one reasonably using his or her senses and was not inherently dangerous. Moreover, the debris in the area where the accident occurred was an unavoidable and inherent result of the ongoing tree removal work. In this “manner and method” case, the evidence demonstrated none of the moving defendants bore responsibility for the manner in which the work was performed. Instead, plaintiff himself was supervising the tree removal work on behalf of Russ, and no employee of the moving defendants had the authority to supervise or control his work.
 
 

Gibbon v 1515 Bedford Ave. Realty, LLC
December 23, 2020
Appellate Division, Second Department

 
Plaintiff allegedly was injured in an accident at a work site managed by defendant. The trial court denied, without prejudice to renew upon the completion of certain discovery, plaintiff's motion for summary judgment on the issue of liability under Labor Law §§ 240(1) and 241(6).
 
Labor Law § 240(1) (MAS)
The Second Department affirmed as defendant’s opposition was based on the transcript of a nonparty as well as affidavits from this nonparty and the two alleged witnesses he identified at his deposition. The Court noted that the certificate of readiness had not been filed and deemed the filing of the note of issue a nullity because there remain outstanding requests for discovery.
 
PRACTICE POINT: The Unform Rules for Trial Courts requires the filing of a note of issue to be accompanied by a certificate of readiness, which must state that there are no outstanding requests for discovery and the case is ready for trial. If the certificate of readiness fails to materially comply with the requirements of 22 NYCRR 202.21, the filing of the note of issue is a nullity.

 

Joseph v 210 W. 18th, LLC
December 23, 2020
Appellate Division, Second Department

 
Plaintiff allegedly was injured when he fell from an A-frame ladder while working in an apartment undergoing renovation. His employer was a subcontractor hired by defendant, JM3 Construction, the general contractor, and the premises were owned by defendants 210 West 18th and SMJ 210. Plaintiff was the sole witness to the accident and testified that the floor was level and the ladder’s cross-braces were fully extended. He also testified the ladder was not defective and he fell backwards on his left side when the ladder shook. He also submitted an affidavit stating that the ladder was stable when he started his work.  The trial court denied his motion for summary judgment on the issue of liability under Labor Law § 240(1).
 
Labor Law § 240(1) (MAS)
The Second Department affirmed, as the fact that plaintiff fell from a ladder, standing alone, is insufficient to establish, prima facie, that the ladder shook, or to satisfy his burden of establishing that the statute was violated, and that the violation was a proximate cause of his injuries. No evidence was submitted that the ladder moved out of position, so as to indicate that it was inadequately secured. Thus, the Court held the trial court properly denied plaintiff’s motion under § 240(1).
 
PRACTICE POINT: Anyone else love this decision from the Second Department as much as H&F’s Labor Law Team? We question whether this same result would be reached in any of the other three Appellate Departments.
 
 

Mondragon-Moreno v Sporn
December 23, 2020
Appellate Division, Second Department

 
Plaintiff, an employee of the third-party defendant, JBR was working on a construction project at a home owned by defendants/third-party plaintiffs, the Sporns. While standing on an elevated platform that was level with the second floor of the home, plaintiff attempted to use an A-frame ladder to get down to ground level. While he was climbing down the ladder, it slipped out from under him, causing him to fall to the ground, and sustain injuries. The trial court denied the motion of the Sporns which were for summary judgment dismissing the claims alleging a violation of Labor Law § 200 and common-law negligence against them and denied third-party defendant’s motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims insofar as asserted against defendants/third-party plaintiffs. 
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department reversed the trial court’s order, which denied defendants/third-party plaintiffs’ and third-party defendant’s motions for summary judgment dismissing plaintiff’s Labor Law § 200 and common-law negligence claims. This case was evaluated as both a “dangerous condition” and “manner and method” case. With regard to the dangerous condition on the premises.  Plaintiff claimed the dangerous or defective premises condition was "melted snow and/or ice" which caused the ladder to slip. However, plaintiff testified at his deposition that on the day of his accident, there was no snow or ice in the backyard where he was working. As for manner and method, the Court found that the Sporns did not have the authority to direct or control the manner and method of the work. The testimony submitted by JBR and the Sporns established that the Sporns did not interact with JBR's employees during the construction, that the work was only subject to the Sporns’ final approval upon completion – rather than on an ongoing basis – and that the Sporns did not provide any equipment or ladders to JBR or the plaintiff. Thus, defendants/third-party plaintiffs were entitled to summary judgment as to Labor Law § 200 and common-law negligence.
 
 

Zoto v 259 W. 10th, LLC
December 23, 2020
Appellate Division, Second Department

 
Plaintiff was injured when he was working on an apartment renovation in a building owned by the defendant, 259 West 10th. Defendant Klaracon was the general contractor for the renovations. Plaintiff alleged that, in November 2014, he was working as an employee of the third-party defendant, which was responsible for fabricating and installing glass shower doors in the bathrooms and a glass balustrade in the living room to create an enclosure around a large opening in the living room floor. According to plaintiff, he fell through that opening to the basement below because the defendants had failed to adequately secure the opening in the floor.
 
The trial court denied plaintiff's motion for summary judgment on the Labor Law § 240(1) claim and denied Klaracon’s cross-motion for summary judgment dismissing that claim.
 
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s denial of plaintiff’s motion and Klaracon’s cross-motion, finding triable issues of fact as to whether plaintiff’s tasks required him to be in the living room area in proximity to the opening and whether he was engaged in the type of activity protected under Labor Law § 240(1). Accordingly, neither party met their burden of establishing entitlement to judgment as a matter of law.
 
PRACTICE POINT: Understanding which party bears what burden of proof is critical in every motion and depends on whether you are the moving party seeking judgment as a matter of law or if you are the party opposing the motion by trying to create issues of material fact.

 

Villa v East 85th Realty, LLC
December 30, 2020
Appellate Division, Second Department


Plaintiff, an employee of third-party defendant, Capital Craftsman, was installing tile in one of the bathrooms of an apartment building when he fell. The building was owned by defendant, East 85th Realty. Capital Craftsman was hired to perform cosmetic renovations to vacated apartments in the building. At the time of the accident, plaintiff was attempting to get into a bathtub to install a piece of tile on the wall. He stepped with his left foot onto the rim of the bathtub and, while his right foot was still on the ground outside the bathtub, his left foot slipped, causing him to fall backward. The trial court granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment on the issue of liability. 

Labor Law § 240(1) (MAS)
The Second Department affirmed dismissal of plaintiff’s Labor Law § 240(1) as defendant established that plaintiff was not exposed to the type of elevation-related hazard contemplated by the statute, since plaintiff’s right foot was still on the ground, outside the bathtub, when his left foot slipped on the rim of the bathtub.
 
 
Labor Law § 241(6) (TPW)
With regard to Labor Law § 241(6), the Second Department affirmed the trial court’s determination granting defendant’s motion dismissing the Labor Law § 241(6) claim. Plaintiff asserted a violation of Industrial Code § 23-1.7(d), which pertains to slipping hazards. However, plaintiff was unable to identify any wetness or other foreign substance on the rim of the bathtub that caused his foot to slip and, as such, defendant established the section had no application under the circumstances. In opposition, plaintiff failed to raise a triable issue of fact.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed dismissal of the Labor Law § 200 and common-law negligence claims. Defendant established it was not liable for a dangerous or defective premises condition, as plaintiff did not know whether the rim of the bathtub was wet or slippery with water or another foreign substance and could not identify what caused his foot to slip. Defendant further established it had no authority to supervise or control the manner in which plaintiff performed his work.
 

Industrial Code Regulations - EDA

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

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

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

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

 

 

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]

           
Michael J. Dischley
[email protected]
 

Steven E. Peiper
[email protected]

Brian F. Mark
[email protected]

Timothy P. Welch
[email protected]

Eric D. Andrew
[email protected]

Brenna Gubala
[email protected]

 

 

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

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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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1300 Liberty Building, Buffalo, NY  14202

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