Labor Law Pointers - Volume X, No. 2

Volume X, No. 2 Wednesday, January 4, 2023
 Note from David R. Adams:
Do you have a situation? We love situations. Give us a call, send an email, drop by; we truly enjoy solving complex Labor Law and risk transfer issues.  Welcome to 2023.  Every year starts with the promise of opportunity and potential. Here’s hoping that we all are able to take advantage of all that is offered to us, and we pray for happy and healthy families, good friends, fair winds, and a following sea.   In our first video, the roofing company the plaintiff works for was hired to replace the roof on a bakery.  The plaintiff was using a bucket on a line to hoist shingles to the roof but, when he was asked to go up on the roof to help install shingles, instead of using the ladder, which was 10 feet away, as he had been trained, he tried to hoist himself up in the bucket.  The result was a neck injury.  § 240(1) case? This is a pure sole proximate cause case.  The plaintiff is a person so employed, the property owner is a valid defendant, the project is a repair, and the injury was caused by an elevation differential.  The defense, other than pure stupidity, is that the plaintiff was the sole proximate cause of his injuries.  There was an appropriate safety device, which was available to the plaintiff; he was instructed to use it; he chose not to use the appropriate and available safety device; and did so for no good reason.  This is a summary judgment ruling for the defendant, and an awesome video.   In our second offering of the month, we have a plaintiff whose company was hired to repoint a chimney on an apartment building.  The plaintiff did not have a ladder long enough to reach the outer portion of the chimney to complete the job, so he climbed to the roof of the adjacent building, without that building owner’s knowledge, put his ladder there, and leaned it across to the chimney to complete his work.  § 240(1) case against the owners of both buildings? The answer for the owner of the building where the chimney was located is easy; the plaintiff has a valid § 240(1) case.  When considering the other building, the courts have taken the approach that finding a building owner statutorily liable simply because someone comes onto their property, without their knowledge or permission, is a step too far, and likely summary judgment for the non-contracting defendant building owner.   Here, we have a soon-to-be plaintiff, an electrician, who determined that waiting for the boom truck to arrive in order to put the wiring into the new build store would cut into his day too much. So, he decided to place some boards over to the building across the street and slide on out there on a ladder to get started.  When the ladder shifts, causing the plaintiff to fall to the ground, § 240(1)?   Plaintiff was not provided with an appropriate safety device and thus, this is a prima facie § 240(1) case.  The defendant will argue that the plaintiff knew he was supposed to wait for the lift, but that is not a sole proximate cause defense here, as no appropriate safety device was provided for his use.  Recall that the necessary elements of the sole proximate cause defense are: 1) an appropriate safety device available on site; 3) that the plaintiff be instructed to use the device; 4) that the plaintiff failed to use or misused the device; and 5) the misuse or failure to use was for no good reason.  Here there was no appropriate device available; it was on its way.  Summary judgment for the plaintiff.   In our final offering, the owner of a parking garage hires a sign company to install a sign on the third floor of the garage, so they can rent the advertising.  The plaintiff is sent to install the sign and, while doing so, he needs a way to access the outer portion of the sign, because he can’t reach it from the top of the ramp.  He takes a ladder and sticks it out from the top of the wall on the third level.  He puts on his harness and lanyard and attaches the lanyard to a secure attachment point.  When his co-worker moves and is no longer the counterweight on the ladder, the plaintiff falls, but is stopped from falling to the ground by the harness. However, the plaintiff does sustain an injury to his back.  § 240(1)? The plaintiff has a prima facie case. The question is whether there is a sole proximate cause defense.  The answer to that, is no.  While the fall protection was appropriate and available for the plaintiff and, in fact, he used it, the ladder was clearly not an appropriate safety device.  Thus, regardless of the use of an appropriate safety device, it cannot be the SOLE proximate cause where the ladder used in that manner was not appropriate and was a proximate cause.   Thanks for reading this month’s edition.  We wish a healthy and prosperous new year to one and all.   Please feel free to reach out to us with any questions Labor Law or risk-transfer related.   
David
  David R. Adams Hurwitz Fine P.C. The Liberty Building 424 Main Street, Suite 1300 Buffalo, New York 14202 Phone:  716.849.8900 Fax:  716.855.0874 Email:  [email protected] HF Website:  www.hurwitzfine.com
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Castillo v TRM Contr. 626, LLC December 6, 2022 Appellate Division, First Department
  Plaintiff testified that he fell from a six- to eight-foot-tall A-frame ladder, that was in poor condition, while trying to cover a window with plastic in preparation for painting. Plaintiff leaned the ladder against the wall in a closed position because there were large, heavy boxes preventing plaintiff from fully opening his ladder. The trial court granted plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim.   Labor Law § 240(1) (MAS) The First Department unanimously affirmed the trial court’s decision, as a statutory violation is established if a ladder shifts, slips, or collapses, thereby causing injury to a worker. The Court rejected the affidavit from TRM’s principal because he failed to recite any facts describing the location of plaintiff’s injury-producing work, he failed to establish how the A-frame could have been fully opened and secured in that location, and he asserted that plaintiff was authorized to and should have moved the materials, without specifically refuting plaintiff’s testimony that he had been instructed not to do so.   The Court also rejected defendants’ argument that plaintiff’s motion was premature, since they had not yet taken the deposition of the foreman employed by Park Avenue Paint, who supervised plaintiff, because defendants failed to meet their burden of showing either that the foreman’s deposition would give relevant testimony or that they believed his testimony was relevant.   PRACTICE POINT: An injured worker is entitled to partial summary judgment on liability under Labor Law 240(1) where he or she fell from or was injured on an A-frame ladder that was unable to be fully open due to the presence of debris or materials in the area, while engaged in a protected activity (e.g., painting). This rule pertains to a fall from an A-frame ladder in a closed position, where, as in this case, the conditions of the workplace make it impossible for the worker to place the safety device in an open and secure position.   Another hot topic right now is arguing that summary judgment is premature. However, to succeed on this argument, you must demonstrate that the outstanding discovery sought might lead to relevant evidence and that you have been diligent in pursuing that discovery. Defendants here were unable to establish that the foreman’s anticipated testimony was reasonably likely to lead to relevant evidence.    
Pinzon v Royal Charter Props., Inc. December 6, 2022 Appellate Division, First Department
  Plaintiff's accident occurred while he was plastering a portion of the wall and ceilin,g when the six-foot, A-frame ladder on which he was standing suddenly moved to the left, causing him to lose his balance and fall. The property was owned by Royal Charter and managed by Cushman & Wakefield, Inc. (C&W), plaintiff's employer. The trial court denied plaintiff's motion for summary judgment under Labor Law § 240(1) against Royal Charter.   Labor Law § 240(1) (MAS) The First Department unanimously reversed the trial court’s decision as plaintiff established, through his testimony, that the ladder on which he was standing at the time of the incident moved from under him for no apparent reason. Plaintiff is entitled to summary judgment although he was the only witness to his incident because “nothing in the record controverts his account of the incident or calls his credibility into question”. Plaintiff informed his supervisor about his incident immediately after, and his supervisor prepared an incident report that same day, negating defendants’ assertion that there was no contemporaneous evidence corroborating plaintiff’s incident, because he declined medical treatment immediately after the incident, and did not seek such treatment until two weeks later.   The Court further held that, while the opinions of defendants’ expert engineer might have related to the issue of proximate causation of plaintiff’s damages, i.e., whether his claimed injuries were proximately caused by his incident, they did not raise material issues as to liability. Finally, the Court rejected defendants’ argument that plaintiff failed to identify a safety device that would have prevented his incident, not only because this argument was improperly raised for the first time on appeal, but also because plaintiff established that he was provided with a safety device, i.e., a ladder, but the ladder proved to be inadequate.   PRACTICE POINT: This is the classic Labor Law 240(1) fall-from-a-ladder fact-pattern, and unless defendants can point to facts in the record contradicting the injured worker’s version of how the incident occurred, or calling his or her credibility into question, the injured worker is entitled to partial summary judgment on liability.    
Widdecombe v Consolidated Edison Co. of N.Y., Inc. December 6, 2022 Appellate Division, First Department
  Plaintiff allegedly was injured when, while standing up, he hit the back of his neck on a plywood board affixed to the top of the entranceway to the basement boiler room. The trial court granted Consolidated Edison's motion for summary judgment dismissing the Labor Law § 240(1) claim against it, granted EGK summary judgment dismissing that claim against it, and denied plaintiff's cross motion for summary judgment on liability on the Labor Law §§ 240(1) and 241(6) claims. The trial court also denied EGK Realty's motion for summary judgment dismissing the Labor Law §§ 241(6), 200, and common-law negligence claims against it, granted plaintiff summary judgment on liability on the Labor Law § 200 and common-law negligence claims.   Labor Law § 240(1) (MAS) The First Department affirmed the trial court’s decision granting summary judgment to Con Ed and denying plaintiff’s motion because plaintiff’s incident did not implicate an elevation-related risk contemplated under the statute (see Runner v New York Stock Exch., Inc., 13 NY3d 599, 603-604 [2009]).   PRACTICE POINT: The single decisive question under Runner is whether plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential. In this case, the facts answered that question in the negative.   Labor Law § 241(6) (TPW) The First Department affirmed the denial of plaintiff’s motion and refusal to consider EGK's second summary judgment on the Labor Law § 241(6) claim.  However, upon a search of the record the Appellate Division dismissed the claim predicated upon Industrial Code § 23-1.7(e)(1) which provides, as relevant, that "[s]harp projections which could cut or puncture any person shall be removed or covered." Per the record, the plywood board was not a sharp projection that could cut or puncture, and thus the provision was inapplicable.   Labor Law § 200 and Common-Law Negligence (ESB) The First Department reversed the trial court’s order granting Plaintiff summary judgment on his Labor Law § 200 and common-law negligence claims.  It found that the trial court correctly denied summary judgment to defendant on these claims.  However, triable issues of fact existed as to whether the plywood board affixed to the top of the entranceway to the basement boiler room, on which plaintiff hit with the back of his neck while standing up, was open and obvious, and whether it was inherently dangerous.  Thus, Plaintiff’s motion also should have been denied.  
Singh v New York City Hous. Auth. December 8, 2022 Appellate Division, First Department
  Plaintiff testified that he was ascending an unsecured ladder to the top of a sidewalk bridge when the ladder allegedly slipped from underneath him, causing him to strike his face against the sidewalk bridge and fall to the ground. Plaintiff also testified that his foreman, who directed him to climb the ladder, witnessed the incident and immediately assisted him. The trial court denied 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 First Department unanimously affirmed the trial court’s decision because plaintiff’s foreman, in an affidavit, denied that the events as described by plaintiff transpired. Therefore, the Court held this conflicting evidence raised questions of fact as to whether the incident occurred, and whether defendants may be liable under Labor Law §§ 240(1) and 241(6) insofar as predicated on applicable Industrial Code regulations. Contrary to plaintiff’s contention, the foreman’s affidavit did not constitute denials of personal knowledge of the facts to render them insufficient to rebut plaintiff’s prima facie showing.   PRACTICE POINT: When, as here, credible evidence reveals differing versions of the incident, under one of which defendants would be liable and under another where they would not, questions of fact preclude summary judgment.    
Ladd v Thor 680 Madison Ave LLC December 13, 2022 Appellate Division, First Department
  Plaintiff allegedly was injured by an emergency hatch door in the ceiling of an Alimak construction hoist (Alimak or the hoist) that closed onto his head, as he stood on a ladder with his head protruding above the hatch aperture, during a renovation project in Manhattan. The trial court granted plaintiff's motion for partial summary judgment under Labor Law § 240(1) and granted defendants' summary judgment dismissing the Labor Law §§ 241(6), 200, and common-law negligence claims.   Labor Law § 240(1) (MAS) The First Department affirmed the trial court’s decision as the Court determined the hatch door was an essential component of a safety device – the hoist – being employed by plaintiff in an elevation-related capacity. When he was injured, the plaintiff was still engaged in an elevation-related activity, and attempting to safely move himself from a height. Under these circumstances, the Court held the safety device was inadequate for its purpose of keeping plaintiff safe while engaged in an elevation-related activity.   PRACTICE POINT: As the injury-producing work exposed plaintiff to elevation-related risks, defendants were required under Labor Law § 240(1) to provide plaintiff with a hoist that was adequate to protect him from elevation-related hazards, such as the inherent risk of a stoppage while moving people and materials to and from the floors of the subject building.    
Melikov v 66 Overlook Terrace Corp. December 15, 2022 Appellate Division, First Department
  The trial court denied plaintiffs’ motion to vacate an order sua sponte dismissing the complaint ,as plaintiff’s counsel inadvertently failed to calendar the due date on which the parties were to update the trial court on the progress of discovery prior to a pretrial conference.   Labor Law § 240(1) (MAS) The First Department unanimously reversed the trial court’s decision and reinstated the complaint because plaintiffs gave both a reasonable excuse for their default and a potentially meritorious claim. Plaintiffs presented a substantiated excuse of law office failure in the form of an affirmation from counsel, along with correspondence showing that his office inadvertently failed to calendar the due date on which they were to update the court on the progress of discovery. The Court noted that none of defendants' attorneys corrected the wrong date stated in an email from plaintiff's counsel, although they also received the court's notices and were required to cooperate in preparing the submission to the court. Plaintiffs also showed that during the six months preceding the conference, the parties had been actively and cooperatively engaged in court-ordered discovery, and there is no contention that plaintiffs failed to comply with that discovery.   PRACTICE POINT: Considering the circumstances of this case, dismissing the complaint after all parties failed to comply with the court’s notices unfairly penalized plaintiffs, only, and vacating the dismissal order was consistent with public policy of New York to dispose of cases on their merits.    
Breslin v Macy's, Inc. December 20, 2022 Appellate Division, First Department
  Plaintiff was climbing an aluminum A-frame ladder when one of the ladder's legs suddenly bent or twisted, causing him to fall to the ground, along with the ladder.  Plaintiff's foreman testified that he told plaintiff not to use the aluminum ladder, which did not belong to plaintiff's employer, Andersen, and to use a fiberglass ladder belonging to Andersen, three of which were 15 to 50 feet away from the location of plaintiff's accident. Plaintiff's foreman testified that he then removed the aluminum ladder to a nearby dumpster and a laborer employed by defendant Buch stepped on the ladder's leg to bend it and make it unusable. However, 15 minutes later, plaintiff's foreman found plaintiff lying on the floor with the aluminum ladder next to him.   The trial court denied plaintiff's motion for partial summary judgment as to liability under Labor Law § 240(1) and granted defendants' motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims.   Labor Law § 240(1) (MAS) The First Department affirmed the trial court’s decision, finding that plaintiff met his initial burden of showing that his injuries were proximately caused by a violation of the statute, but the testimony of his foreman raises a genuine triable issue as to whether plaintiff was the sole proximate cause of his incident.   PRACTICE POINT: To establish the sole proximate cause defense, a defendant must show that (1) adequate safety devices were available to plaintiff; (2) he or she knew both the safety devices were available and were expected to be used; (3) he or she chose for no good reason not to do so; and (4) he or she would not have been injured had they not made that choice. Here, defendant’s proof regarding instructing plaintiff not to use the aluminum ladder, and instead to use a more-appropriate fiberglass ladder, created an issue of fact regarding sole proximate cause sufficient to defeat plaintiff’s motion.   Labor Law § 200 and Common-Law Negligence (ESB) The First Department held that the Labor Law § 200 and common-law negligence claims were correctly dismissed as against defendant Macy's, Inc. but should have been sustained as against Buch.  It found that the ladder from which Plaintiff fell was an aspect of the means and methods of the work (as opposed to a condition on the premises.  The record establishes that Macy's had no control of the means and methods of the work, so it could not be held liable under § 200 or common-law negligence.  With regard to Buch, however, Andersen's foreman testified that a Buch employee named “Steve” stepped on one of the legs of the ladder in an effort to bend it and render it unusable. If true, Buch affirmatively created the hazard that resulted in plaintiff’s injury.  Therefore, a triable question of fact existed as to Buch’s negligence.  
D'Ambruoso v Port Auth. of N.Y. & N.J. December 20, 2022 Appellate Division, First Department
  Plaintiff allegedly was wheeling a hand truck carrying work material along a plywood ramp when one of the pieces of plywood shifted under him, causing him to fall onto steel piping and the concrete floor about 12 to 18 inches below. The trial court denied plaintiffs' motion for partial summary judgment under Labor Law § 240(1) and denied plaintiffs' motion for leave to renew their motion for partial summary judgment under Labor Law § 241(6).    Labor Law § 240(1) (MAS) The First Department unanimously affirmed the trial court’s decision to deny plaintiff summary judgment. Although there is no bright-line minimum height differential that determines whether an elevation-related hazard exists for purposes of Labor Law § 240(1), the Court held that plaintiff’s incident was not the result of an elevation-related risk against which he was not properly protected.   PRACTICE POINT: A slip and fall on a plywood ramp or wet two-by-fours that slipped out from underneath a worker is simply not the type of elevation-related risk to which the extraordinary protections of Labor Law § 240(1) were designed to guard against.   Labor Law § 241(6) (TPW) The First Department unanimously affirmed the lower court’s denial of plaintiffs' motion for leave to renew their motion for partial summary judgment on the issue of liability on their Labor Law § 241(6) claim.     
Swart v State of New York December 14, 2022 Appellate Division, Second Department
  Claimant, while working on a construction project on the Tappan Zee Bridge, allegedly sustained injuries when he slipped and fell while stepping off a ladder on an excavator machine onto a barge work platform. On October 15, 2019, he purported to serve the New York State Thruway Authority (“NYSTA”) with a notice of intention to file a claim. However, claimant failed to follow the procedures set forth in Court of Claims Act § 11(a)(ii), as they served the notice of intention solely upon the Attorney General and failed to serve an additional copy on NYSTA personally or by certified mail, return receipt requested.   By claim dated January 29, 2020, claimants commenced a claim against, among others, NYSTA, alleging injuries resulting from NYSTA's violations of Labor Law §§ 240(1) and 241(6). NYSTA answered the claim, asserting, among other things, a defense of lack of subject matter jurisdiction on the grounds that the claimants failed to serve the claim or notice of intention within 90 days of the accrual of the claim. The Court of Claims denied claimants' motion to deem their claim timely filed nunc pro tunc, or, alternatively, for leave to file a late claim against NYSTA and granted NYSTA’s cross-motion to dismiss the claim insofar as asserted against it.   Labor Law § 240(1) (MAS) The Third Department affirmed the Court of Claims’ decision to reject claimant’s contention that they had a reasonable excuse for their failure to serve a claim or notice of intention upon NYSTA in a timely fashion, as their excuse was predicated on ignorance of the law. However, the Court found that claimants’ submissions were sufficient to establish that the claims appear to be meritorious. Claimant also demonstrated that NYSTA had actual knowledge of the essential facts constituting the claim within 90 days of the incident, had an opportunity to investigate the claim, and there is no indication that NYSTA would suffer substantial prejudice if claimants were permitted to file a late claim. Accordingly, the Court of Claims should have granted claimants’ motion for leave to file a late claim and should have denied NYSTA’s cross-motion to dismiss the claim.   PRACTICE POINT: Court of Claims Act § 10(6) permits a court, in its discretion, upon consideration of the enumerated factors set forth therein, to allow a claimant to file a late claim. In determining whether to permit the filing a late claim, the court considers, among other factors, (1) whether the delay in filing the claim was excusable; (2) whether the state had notice of the essential facts constituting the claim; (3) whether the state had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the failure to file or serve upon the attorney general a timely claim resulted in substantial prejudice to the state; and (6) whether claimant has any other available remedy. No one factor is deemed controlling, nor is the presence or absence of any one factor determinative. Here, the Court found that most of the factors weighed in favor of granting claimant leave to serve a late notice of claim.    
Saitta v Marsah Props., LLC December 28, 2022 Appellate Division, Second Department
  Plaintiff allegedly was injured while mounting a television on a wall of a doctor's office. At the time of the incident, plaintiff was descending from the third step of a six-foot ladder when the ladder allegedly twisted, causing him to fall. The trial court denied the separate motions of Family Practice of Long Island and Marsah Properties for summary judgment dismissing the Labor Law § 240(1) claim but granted their separate motions for summary judgment dismissing the Labor Law § 200 and common-law negligence claims.   Labor Law § 240(1) (MAS) The Second Department reversed the trial court’s decision and granted those branches of the defendants’ separate summary judgment motions dismissing the Labor Law § 240(1) insofar as asserted against each of them. Defendants demonstrated that plaintiff was not engaged in any of the enumerated activities under the statute. Contrary to plaintiff’s contention, affixing a bracket to a wall so that a television might be mounted on it did not make a “significant physical change to the configuration or composition of the building or structure”. To the extent that plaintiff’s affidavit presented feigned issues of fact tailored to avoid the consequences of his earlier deposition testimony regarding the need for plaintiff to run wiring through the ceiling, it is insufficient to raise a triable issue of fact.   PRACTICE POINT: This case is a big deal. In the past, something as simple as mounting a TV to the wall would have been a 240(1) activity.  However, we now have case law holding that something as simple as affixing a bracket to a wall, to mount a T.V., is not an alteration, rather it is more akin to a decorative modification, which, like routine maintenance, does not qualify as an enumerated activity under Labor Law § 240(1).   Labor Law § 200 and Common-Law Negligence (ESB) The Second Department affirmed dismissal of the Labor Law 200 and common-law negligence claims.  In this case, Plaintiff alleged defects in both the premises and the equipment used at the work site (“means and methods” and “dangerous condition”).  The Court found that defendants established that they did not create or have actual or constructive notice of the alleged condition which caused the plaintiff's injury, and that they had no authority to supervise or control the means and methods of the plaintiff's work.  Accordingly, summary judgment properly was granted.  
Morin v Heritage Bldrs. Group, LLC December 1, 2022 Appellate Division, Third Department
  Plaintiff, a taper employed by Wall-Tech Drywall, fell and allegedly was injured while working at a construction site on property owned by Heritage Builders. Heritage contracted with Duquis to install sheetrock at the property and Duquis subcontracted with Wall-Tech to perform taping of the sheetrock at the construction site. The trial court denied plaintiff’s summary judgment motion and partially denied defendants’ cross-motions for summary judgment dismissing the complaint and crossclaims, finding the parties’ conflicting expert opinions created triable issues of fact.   Labor Law § 240(1) (MAS) The Third Department affirmed the trial court’s determination that neither party was entitled to summary judgment under Labor Law § 240(1) because Duquis’ expert affidavit raised a question of fact sufficient to rebut plaintiff’s prima facie case as to whether plaintiff was the sole proximate cause of his injuries and whether the statute was violated inasmuch as it was disputed whether one scaffold was sufficient to perform the job.   PRACTICE POINT: Duquis raised a factual issue by presenting evidence, through expert testimony, that the device furnished was adequate and properly placed, and that the conduct of plaintiff may be the sole proximate cause or his or her injuries. A battle of the experts often will, as here, result in neither party being awarded summary judgment.   Labor Law § 241(6) (TPW) The Third Department affirmed the lower court’s grant of defendants' cross motions by dismissing plaintiff's Labor Law § 241 (6) cause of action. "To prevail on a Labor Law § 241 (6) claim, a plaintiff must demonstrate the violation of a regulation setting forth a specific standard of conduct applicable to the working conditions which existed at the time of the injury and that the violation was the proximate cause of the injury.”  Section 12 NYCRR 23-5.22 [c] provides that "[w]henever stilts are used, scaffolds commonly used and appropriate for wallboard construction and which are in compliance with [Industrial Code Rule No. 23 relating to protection in construction, demolition and excavation operations] shall be provided at all times such work is being performed. Such scaffolds shall be readily available for any person performing such work who may elect to use such scaffold." Give plaintiff was not using stilts at the time of the accident, the Labor Law § 241 (6) cause of action fails as a matter of law.  Indemnity Issues in Labor Law (BFM) The Third Department affirmed the trial court’s denial of Heritage's motion for indemnification from Dupuis.  With regard to the common law indemnification claim, the Court noted that there had been no finding that Dupuis was liable.  Additionally, there was no evidence that Dupuis either supervised, controlled or directed plaintiff's work.  Even if Dupuis were to be found liable, such a finding would not mean that he was actively at fault.  Dupuis, like Heritage, could be found to be only statutorily liable, particularly given that plaintiff withdrew his common-law negligence and Labor Law § 200 causes of action.  As such, the Court held that Heritage's motion for summary judgment on its common-law indemnification cause of action was properly denied as premature.  As to contractual indemnification, the Court found issues of fact as to the parties' intent due in part to ambiguities as to the effective dates of application of the contractual indemnification clauses in the written agreements relative to the date of the accident in February 2018.  Additionally, questions of fact were found as to which of three signed agreements would control, if any.  To that end, Heritage submitted signed agreements between Heritage and Dupuis, which include a contractual indemnification provision for the years 2016, 2017 and 2018. However, in his deposition errata sheet, Dupuis disputed that the 2018 agreement was signed and executed prior to the accident.  Moreover, if the 2018 agreement was signed after the accident, retroactivity will not be necessarily implied, nor are the parties' prior dealings significantly helpful in ascertaining their intent.  In light of these material issues of fact, the Court affirmed the trial court’s denial of Heritage's motion for contractual indemnification as premature.  
Whiting v Nau December 8, 2022 Appellate Division, Third Department
  Defendants owned and lived on property that included a home and a two-story barn. Defendants hired plaintiff's employer to renovate the barn into living spaces, and plaintiff was assigned to work on the project. After discovering the appropriate ladder was unavailable, plaintiff crafted an elevated walk board to allow him to reach the ceiling above a stairwell. When the walk board collapsed while plaintiff was standing on it, plaintiff suffered an ankle injury.     The trial court denied plaintiff's motion for partial summary judgment under Labor Law § 240(1) and denied defendants’ cross-motion to dismiss the §§ 240(1) and 241(6) claims, finding material questions of fact as to whether defendants were entitled to the homeowners’ exemption.   Labor Law § 240(1) (MAS) The Third Department affirmed the trial court’s determination that, based on the evidence presented, neither party met their burden of establishing the requisite proof on their summary judgment motion. The Court found the record left unanswered material questions of fact, including, but not limited to, the number of units in the renovated barn, whether the property functioned as a one- or two-family dwelling, and whether defendants intended to use the renovated barn for a purely commercial purpose. Therefore, the Court could not determine whether the homeowners’ exemption applied as a matter of law.   PRACTICE POINT: Although both Labor Law §§ 240(1) and 241(6) impose nondelegable duties upon contractors, owners and their agents to comply with certain safety practices for the protection of workers engaged in various construction-related activities, the Legislature carved out an exemption for the owners of one- and two-family dwellings who contract for but who do not direct or control the injury-producing work. A homeowner who uses their entire one- or two-family dwelling “purely for commercial purposes” is not entitled to claim the exemption. When a residence serves dual residential and commercial uses, "the availability of the exemption depends on the site and purpose of the work performed”. If, as in this case, there are material questions of fact as to whether the exemption applies, then neither party is entitled to summary judgment under Labor Law §§ 240(1) and 241(6).    
Hyde v BVSFSSF Syracuse, LLC December 23, 2022 Appellate Division, Fourth Department
  Plaintiff allegedly was injured when he fell to the ground from a third-floor wooden platform on the exterior of the building. At the time of the incident, workers on the project would access a particular floor of the building by using a temporary elevator (lift) that was erected on the exterior of the building by HBC, the general contractor. Plaintiffs and other workers had taken the lift to the third floor and entered the building to gather waste. Another worker subsequently moved the lift to another floor but did not lock the third-floor access door because the lock on that door had been removed. The incident occurred when plaintiff was pulling a waste cart and walked backwards through the unlocked access door, onto and then off the wooden platform, falling to the ground. The trial court denied plaintiff’s motion for partial summary judgment under Labor Law § 240(1).   Labor Law § 240(1) (MAS) The Fourth Department unanimously reversed the trial court’s decision because plaintiff met his burden of demonstrating the absence of an adequate safety device that could have prevented his fall, namely, a lock on the third-floor access door. In opposition, the Court held defendants failed to raise a triable issue of fact whether plaintiff’s own negligence was the sole proximate cause of his injuries. Here, there is no evidence in the record that plaintiff removed the lock and, therefore, was the sole proximate cause of the incident. Assuming, arguendo, that plaintiff was negligent in walking backwards out the access door and in failing to look back prior to going through the door to ensure the lift was there, such “actions [would] render him [merely] contributory negligent, a defense unavailable under [Labor Law § 240(1)]”.   PRACTICE POINT: An injured worker meets their initial burden on summary judgment by establishing that defendant’s failure to provide any fall protection violated Labor Law § 240(1) and was a proximate cause of the incident and injuries. It does not help the defense to argue that the injured worker’s conduct amounted to comparative negligence, as plaintiff’s comparative fault does not prevent recovery under the statute.  
 New York Industrial Code Regulations (EDA)
 
12 NYCRR 23-1.24(b) Where any work is being performed in the construction, repair or maintenance of any roof without a parapet at least two and one-half feet in height and such roof is more than 20 feet in height measured from the ground or grade level to the exterior edge of the eaves and the slope of such roof is greater than one in four, a ground-supported scaffold in compliance with this Part (rule) shall be provided. Such scaffold shall be installed beneath the work area with the scaffold platform not more than two feet below the exterior edges of the eaves of the roof. Such scaffold shall be of sufficient width to extend outward at least two feet from the exterior roof edge and the scaffold platform shall be provided with a safety railing constructed and installed in compliance with this Part (rule). In addition, persons performing such work shall be protected against sliding by means of roofing brackets or crawling boards installed and used in compliance with this Part (rule). Such roofing brackets or crawling boards are not required in cases where every employee engaged in work on such roof is provided with and used as approved safety belt or harness securely attached to a lifeline in compliance with this Part (rule). Regulation § 23–1.24(b), specifying the use of scaffolding for pitched roofs, is likely sufficiently specific to support a Labor Law § 241(6) claim. Regulation § 23–1.24(a) and (b) governing the use of safety devices on roofs having slopes steeper than one inch in four inches requires plaintiff to submit competent proof establishing slope of roof from which fell to obtain summary judgment (Amirr v Calcagno Const. Co., 257 AD2d 585, 684 NYS2d 280 [2d Dept. 1999]).  Regulation § 23–1.24(b) held inapplicable where plaintiff submitted no evidence that the pitch of the roof exceeded one in four inches   (D’Acunti v New York City School Const. Authority, 300 AD2d 107, 751 NYS2d 459 [1st Dept. 2002])   Amirr v Calcagno Const. Co., 257 AD2d 585, 684 NYS2d 280 [2d Dept. 1999])   A question of fact existed whether violation of regulation was proximate cause of worker's injury incurred when he fell from roof (Perri v Gilbert-Johnson Enterprises, Ltd., 14 AD3d 681, 790 NYS2d 25 [2d Dept. 2005]). 
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
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