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Labor Law Pointers - Volume X, No. 3

 
 

Labor Law Pointers

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

Volume X, No. 3
Wednesday, February 3, 2021

 

From the Editor:

Do you have a situation?  We love situations.  Give us a call, send an email, drop by; we truly enjoy solving complex Labor Law and risk transfer issues. 
 
Continuing with our objective of sharing information to increase everyone’s knowledge base, today we include an article from Timothy Welch on the potential exposure of Construction Managers to liability in Labor Law litigation.  We will again follow up on that article by presenting a webinar on February 16, 2021, at noon, via Zoom, to go further in-depth and answer questions anyone may have on this important topic.  Here is the hyperlink for the webinar: Pitfalls for Construction Managers.


 
As long-time readers are aware, we break the analysis of a Labor Law § 240(1) case down into four parts to determine if the claims have merit on a prime facie basis.  The four elements are: 1) is the plaintiff a valid plaintiff; 2) is the defendant a valid defendant; 3) is the overall project one that requires defendant to provide the plaintiff with the extraordinary protections of the Labor Law; and 4) is the injury one caused by the application of gravity.  This month’s topic goes directly to which type of Contractor is a valid defendant in a Labor Law action.  Here is a link to the article: Construction Managers, Are You Exposing Yourselves to Labor Law Liability?
 
We now move on to the fun part of our newsletter; the photo/video instructional section.  In our first video, we have a plaintiff, a mason on the job, who, after going to the truck to get a cup of coffee, decides to cut through the fence and cross the trench on a board left there by a different crew (the plumber installing the waterline).  He had been instructed by his foreman, at a safety meeting, not to cross the trench or to pass through the fence line, but to always walk around the trench and cross on the sidewalk beyond the trench.  He had, just minutes prior, watched a worker from the plumber’s crew cross the trench on the board.  § 240(1) case?
 
Video I
 
As you can see the board was not an appropriate device to use to cross the trench, failing as the plaintiff was mid-trench, causing him to fall and be injured.  The plaintiff has a prima facie case, being a person so employed, suing the property owner, doing construction, and injured by the application of gravity when a safety device failed.  We are left with a potential sole-proximate-cause defense.  I know that you are asking yourself, “didn’t the person walking over the ditch on the board just before the plaintiff fell create an implied acceptance of the practice, thus destroying any sole proximate cause defense?”  My answer to that is: not really; if it had been a co-employee and the foreman saw it and did nothing, then it would, but an employee from a different company, in a different trade, would not destroy the sole proximate cause defense which I believe would be strong here.
 
Next, we have a situation where a crew is pouring concrete for the second floor of a new building, when there is a failure of the structure, and the concrete . . . well, I do not really know how to describe what happens. . . just watch the video below.  There are 2 workers injured, the plaintiff working the “sock” (the tube the concrete is being pumped through) is thrown off balance and is able to hang on to it, but in so doing, causes injury to both of his shoulders.  A plaintiff, employed by a different contractor, but on site to weld the support beams, who was on the first floor, is under the concrete when it falls through the floor and sustains injury to neck and back.  Do these plaintiff’s have a valid § 240(1) claim against the property owner and general contractor?
 
Video II
 
The first employee, who was left hanging from the sock, may not have actually fallen and been injured, but an injury caused by preventing yourself from falling (where the injury would qualify had you actually fallen) creates a valid § 240(1) claim.  Here the plaintiff, had he fallen and been injured, would have had a § 240(1) claim, so the claim is valid.  The plaintiff struck by the falling concrete has a valid claim as well.  He is a person so employed, sued the owner and GC, was engaged in construction, and was injured by a falling object, albeit not yet a solid object . 
 
Here we have a plaintiff who, while on a construction site building a new bank, decided to show his co-workers what he had seen on the internet last night – a man who had such great balance that he could climb an unsecured ladder.  The results were predictable.  § 240(1) claim?
 
Video III
 
Clearly, in this case, the plaintiff was not engaged in construction activities and is not protected by the Labor Law.  The lesson here is one of the advantages of early investigation.  Statements taken of the plaintiff and co-workers immediately after the accident will be incredibly useful during the plaintiff’s depo, when the version of the fall may have changed a bit.  Statements from all involved immediately following an accident cannot be overrated.  We have a 24-hour response team for construction and industrial accidents, which I lead.  We have been known to be on-site, across the state, before OSHA, with experts, to document conditions, take photos, obtain video, take measurements, and obtains statement, which can change the course of any lawsuit that follows. 
 
Here, we have plaintiffs installing windows in a new store being built, who decided to go to lunch, but were concerned that someone might use their lift while they were gone.  They decided to put the keys to the lift in the cage and raised it up before turning it off and going to lunch. When they returned from lunch, having had a pint or two, they realized they could not reach the keys to get back to work.  They took a ladder from the other truck, but it would not reach the cage.  They then had the brilliant idea to have Curley hold the ladder while Moe climbed up the ladder to retrieve the keys and get back to work before their boss saw what they had done.  Both were injured in the mayhem to follow.  § 240(1) case?
 
Video IV
 
We have the basic elements of a § 240(1) claim here, plaintiffs were so employed, they sued the property owner, they were seemingly engaged in a protected project (construction), and clearly the injuries were caused by the effects of gravity.  But, were they actually engaged in the construction?  That is where I would start my defense.  Are the exceptional protections of Labor Law § 240(1) designed to protect this type of activity?  Is trying to retrieve a lift construction activity?  Would it make a difference if someone else had left the lift in this condition and the workers had to figure out how to get to work?  What if there was a longer ladder on site and the plaintiffs knew about it?  I have my opinion; what is yours?  Let us know, send me an email at [email protected] or call my cell at 716-553-6901.  We, as a team, work collaboratively with each other, with claims professionals, and with other attorneys outside the firm.  We are always available to work collaboratively with our subscribers.
 
Lastly, I have a photo for you of workers painting the Chrysler building in NYC.  Safety measures have come a long way since then, and the protections available to workers are much more sophisticated than a board to sit on and a block and tackle to lower yourself on.  No question here, just a cool photo.
 

 
We remain available to answer any and all Labor Law or Risk Transfer related questions, and we welcome your calls and emails.  Have a great month and 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:  Medical & Nursing Home Liability Pointers provides the latest news, developments, and analysis of recent court decisions impacting the medical and long-term care communities. Contact Chris Potenza at [email protected] to subscribe.

Premises Pointers This monthly electronic newsletter covers current cases, trends and developments involving premises liability and general litigation. Our attorneys must stay updated on new cases and trends across New York in both State and Federal Court, and share their insight and analysis with you.  Contact Jody Briandi at [email protected]  to be added to the mailing list. 

Products Liability Pointers:  Products Liability Pointers examines recent caselaw impacting product liability in New York, 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 defective design and manufacture, failure to warn, negligence, breach of warranty, medical device, and toxic and mass tort claims. Contact Chris Potenza at [email protected] to be added to the mailing list.

 

Lemache v MIP One Wall St. Acquisition, LLC
January 05, 2021
Appellate Division, First Department

 
Plaintiff was injured, while employed by nonparty TIC, when a pipe rolled onto his foot. On the day of the accident, plaintiff’s foreman instructed plaintiff and two coworkers to insert some pipes under a concrete planter to relocate it. Plaintiff and his coworkers were pushing and pulling the planter from the sides while the foreman was pushing it with a bobcat, when one of the pipes rolled over plaintiff’s foot, causing an injury. The trial court granted defendants’ summary judgment motion dismissing plaintiff’s Labor Law §§ 240(1), 200, and common-law negligence claim, and denied plaintiff’s cross-motion for summary judgment on those claims.
 
Labor Law § 240(1) (MAS)
The First Department affirmed dismissal of plaintiff’s Labor Law § 240(1) claim because his injury was not the type of gravity-related event contemplated by the statute.
 
PRACTICE POINT: The First Department cited two very important Court of Appeals cases in this decision, Runner v New York Stock Exch., Inc. and Willinski v 334 E. 92nd Hous. Dev. Fund Corp. Those cases state: “the dispositive inquiry … does not depend upon the precise characterization of the device employed or upon whether the inquiry resulted from a fall, either of the worker or of an object upon the worker. Rather, the single decisive question 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, unlike in Willinski, the pipes that caused plaintiff’s injuries were being demolished by him at the time of his accident. Accordingly, imposing liability for the failure to provide protective devices to prevent the pipes from falling, when their fall was the goal of the work, would be illogical.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department reversed the trial court’s order granting defendants’ motion for summary judgment as to Labor Law § 200 and common-law negligence. It found that plaintiff raised a triable issue of fact regarding whether defendant general contractor, Gilbane, exercised some supervisory control over the means and methods of plaintiff's work. Gilbane’s onsite superintendent testified Gilbane had the right to enforce safety standards, including the right to ensure that proper safety equipment was being used. She testified Gilbane directed plaintiff and his coworkers to move the planter in question, and it was Gilbane's practice to perform a safety task assessment prior to such an operation. The operation, according to plaintiff's foreman, was normally performed with two Bobcats, one pushing and one pulling the load. 

In this case, however, the operation was performed with only one Bobcat, because the others were in use elsewhere on the site. Gilbane required onsite Bobcat operators to be licensed and kept track of all such licenses. Further, if an unlicensed person was discovered operating a Bobcat, the subcontractor would be notified by Gilbane and instructed to shut down the equipment. Here, it was undisputed that the foreman who was operating the Bobcat involved in plaintiff's accident did not have a license and, therefore, should have been prohibited from operating the Bobcat by Gilbane.

Practice Point:  When a contractor goes beyond the enforcement of contract specifications into the realm of “means and methods” of the work, it could find itself subject to liability under Labor Law § 200.
 

Salcedo v Sustainable Energy Options, LLC
January 05, 2021
Appellate Division, First Department


Plaintiff had not yet begun working and was only at the apartments in the building to accompany his potential prospective employer to review the possible job in the basement of a building undergoing renovations. He was removing a heavy metal lid of a boiler in the basement when he was allegedly struck by material dropped by plumbers working above him. The trial court granted the motions for summary judgment of defendants Strathmore, Sustainable (subcontractor), Gemstone (property manager), and DHNY (owner) dismissing the complaint against them.
 
Labor Law § 240(1) (MAS)
The First Department affirmed dismissal as to Strathmore, the general contractor performing interior renovations of certain apartments in the building, because that work had nothing to do with the work in the basement where plaintiff’s accident occurred. However, defendants Sustainable, Gemstone, and DHNY failed to establish that they did not violate Labor Law § 240(1) or that plaintiff’s injuries were not caused by any violation of that statute. Those defendants submitted no evidence that disputed plaintiff’s testimony that he was struck by material dropped by plumbers working above him, who apologized to him afterwards. Contrary to defendants’ contention, the Court held that plaintiff is not required to show the exact circumstances of the fall of the material.
 
PRACTICE POINT: You cannot win summary judgment in a Labor Law § 240(1) case solely by attacking plaintiff’s credibility.  You must meet your burden of proof as the moving party.
 
Labor Law § 241(6) (TPW)
The First Department reversed the grant of summary judgment in favor of defendants on the Labor Law § 241(6) cause of action. Specifically, it found that dismissal of the claim premised upon a violation of Industrial Code (12 NYCRR) § 23-1.7(a)(1) (Protection from General Hazards) was unsupported by the record, due to the absence of evidence establishing that the area where the accident occurred was not “normally exposed to falling material or objects” and, therefore, did not require overhead protection.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department reversed the trial court’s order granting defendants’ motion for summary judgment as to Labor Law § 200 and common-law negligence. It found DHNY and Gemstone failed to demonstrate that they did not exercise supervision or control over either the work of plaintiff or the plumbers working above him. Further, Sustainable failed to demonstrate conclusively that it did not contract for the work at issue. Therefore, the motions should have been denied.
 

Abad v Brookfield Props. OLP Co. LLC
January 12, 2021
Appellate Division, First Department

 
Plaintiff allegedly was injured by a falling door during demolition work. The trial court denied plaintiff’s motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) claim.
 
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the denial of plaintiff’s motion, finding issues of fact as to whether the fall of the door was the goal of the demolition work being performed, and whether the door was the type of object that required securing for purposes of the undertaking.
 
PRACTICE POINT: Where, as in this case, the object to be secured may have been part of the overall purpose of the demolition, the question becomes whether securing it would interfere with that purpose.
 

Santana v MMF 1212 Assoc L.L.C.
January 12, 2021
Appellate Division, First Department

 
Plaintiff allegedly was injured while performing demolition work in an apartment bathroom, when a portion of the ceiling fell and struck him. The trial court denied defendant Richard Mishkin Contracting’s summary judgment motion seeking dismissal of the Labor Law § 241(6) claim predicated on a violation of the Industrial Code (12 NYCRR) §§ 23-1.8(c) and 23-3.3(c), and the crossclaims for common-law indemnification and contribution, and granted defendants MMF summary judgment motion seeking dismissal of the Labor Law § 200 claim.
 
Labor Law § 241(6) (TPW)
The First Department unanimously affirmed the denial of defendants’ motion for summary judgment as to Labor Law § 241(6), predicated on Industrial Code (12 NYCRR) §§ 23-1.8(c) (Personal Protective Equipment) and 23-3.3(c) (Demolition by Hand).  It held defendants failed to establish that the bathroom where plaintiff was performing demolition work was not an “area where there [was] a danger of being struck by falling objects or materials” (12 NYCRR 23-1.8[c]) and, therefore, a safety hat did not need to be provided. Further, defendants also failed to establish that there was no violation of 12 NYCRR 23-3.3(c), which provides that “[d]uring hand demolition operations, continuing inspections shall be made by designated persons . . . to detect any hazards to any person resulting from weakened or deteriorated floors or walls or from loosened material.”
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed dismissal of the Labor Law § 200 claim as against MMF. First,it found that plaintiff did not oppose the motion. Further, the undisputed evidence demonstrated that MMF neither created or had knowledge of the alleged defect or dangerous condition that caused the accident nor exercised control over the injury-producing work. 

Indemnity Issues in Labor Law (BFM)
The First Department upheld the trial court’s denial of Mishkin’s motion seeking to dismiss the crossclaims for common-law contribution and indemnification, finding Mishkin failed to establish through “competent medical evidence” that plaintiff’s brain injury was not “grave.” The Court also held that an issue of fact existed due to conflicting expert opinions.
 

Gaston v Trustees of Columbia Univ. in the City of N.Y.
January 19, 2021
Appellate Division, First Department

 
Plaintiff was engaged in replacing a boiler steam valve, as part of a larger project that included removing portions of the boilers via blowtorches and the installation of new components by welding. He stood on top of the boiler and completed replacing the safety valves. Then, as he attempted to ascend from the boiler onto the catwalk, his foot slipped due to “the round shape of the boiler,” injuring his left knee and shoulder, but he did not fall from the top of the boiler. The trial court granted defendants’ summary judgment motion dismissing plaintiff’s Labor Law §§ 240(1), 241(6), and dismissing so much of the Labor Law § 200 and common-law negligence claims as premised upon the shape of the boiler and the heat in the accident location.
 
Labor Law § 240(1) (MAS)
The First Department reversed and reinstated plaintiff’s Labor Law § 240(1) claim. Although some courts have held that replacing a boiler steam valve is routine maintenance, this Court found that plaintiff’s work was also part of a larger project that included removing portions of the boilers via blowtorches and installation of new components by welding. Therefore, plaintiff raised an issue of fact whether his work fell within a covered activity under the statute.
 
The Court also rejected defendants’ alternative sole-proximate-cause argument, as they failed to adduce any evidence that devices adequate to the task of safely working atop the boiler were available and that plaintiff refused them or used them improperly.
 
PRACTICE POINT:  If the work requires a significant physical change to the configuration or composition of a building or structure, then it constitutes an alteration or repair within the meaning of Labor Law § 240(1). Conversely, routine maintenance involves replacing components that require replacement during normal wear and tear and, therefore, is not a protected activity under the statute.
 
Labor Law § 200 and Common-Law Negligence (ESB)
In this case, the First Department, searching the record, dismissed plaintiff’s Labor Law § 200 and common-law negligence claims. It held this was a “means and methods” case, and not a “defective condition,” as stated by the trial court. Further, it was clear from the record that defendants neither supervised nor controlled the work being performed by plaintiff and his coworkers at the time of the accident. Of note, the trial court had also dismissed these causes of action, but on the “defective condition” basis.
 

Matter of New York City Asbestos Litig.
January 21, 2021
Appellate Division, First Department

 
Plaintiff’s decedent, who died in 2015, allegedly contracted mesothelioma because of exposure to asbestos-containing products in the course of his employment with Pan Am at John F. Kennedy International Airport in the 1970s. The trial court denied the Port Authority’s summary judgment motion dismissing the Labor Law § 200 and common-law negligence claims.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed the trial court’s order. It held there were questions of fact regarding whether the Port Authority had the . . . authority . . . (no pun intended) to control the activity bringing about the injury, i.e., application of asbestos-containing materials in the airport terminal. The evidence demonstrated that Pan Am’s lease required it to obtain the Port Authority’s approval of the specifications, including materials, prior to any Pan Am construction projects. The lease also gave the Port Authority the power to test material samples and inspect worksites to ensure compliance with Port Authority specifications. Moreover, the evidence demonstrated a question of fact regarding whether the regular application of asbestos-containing products in the terminal caused decedent to be exposed to asbestos fibers in the air. 
 

Martinez v Ghorta
January 26, 2021
Appellate Division, First Department

 
Plaintiff allegedly was injured when the metal jack he was using toppled over, struck him in the head, and knocked him to the ground. The trial court granted plaintiff partial summary judgment as to Labor Law § 240 (1) against defendants Ghorta and Fasano.
 
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed, as the uncontradicted evidence showed the furnished elevation-related safety device, the jack, was inadequate to shield plaintiff from harm “directly from the application of the force of gravity to the [metal jack]” he was using, which toppled over and struck him, and he had not been provided with an adequate safety device. Contrary to defendants’ contention, plaintiff was not required to show that the unsecured jack was defective, since his testimony establishes that it failed to perform its function.
 
PRACTICE POINT: Defendant’ reliance on a notation in the unsworn hospital records, that plaintiff was hit by a pipe, to argue that he was hit by a portion of a nearby piping scaffold was unpersuasive since plaintiff was not required to show that the unsecured jack or pipe-like structure was defective, only that it failed to protect him.  A tool in good working order can still be the wrong tool for the job.
 

Cordova v 653 Eleventh Ave. LLC.
January 28, 2021
Appellate Division, First Department

 
Surveillance footage of plaintiff falling from the ladder demonstrated that the ladder did not move or shake, refuting plaintiff’s testimony. Photographs taken soon after his fall showed the top of the ladder was connected to the sidewalk bridge and scaffolding above and tied to the scaffolding structure about one-third of the way up. The trial court granted defendant’s summary judgment motion dismissing the Labor Law §§ 240(1) and 241(6) claims and denied plaintiff's motion for partial summary judgment on his § 240(1) claim.
 
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s decision, as the surveillance video was properly authenticated by plaintiff’s confirmation that it showed him falling, and by defendant’s head of security, who averred that he saved the relevant portion of the video and confirmed the copy submitted on the motion was identical. The photographs were also properly authenticated as plaintiff’s supervisor testified that he took one soon after the accident and no adjustments were made. Moreover, plaintiff testified that his supervisor’s photographs showed the ladder in the same position as at the time of accident, and the security guard confirmed they fairly and accurately depicted the ladder at the time he saw it soon after the accident.
 
PRACTICE POINT: It is crucial that all evidence be in admissible form.  If you can’t get your evidence before the court, you can’t win.  The defense attorneys in this case did an excellent job authenticating the video and photos..  
 
Labor Law § 241(6) (TPW)
The First Department unanimously affirmed the grant of defendant’s motion for summary judgment dismissing the Labor Law § 241(6) claim as photographs revealed defendant was not in violation of Industrial Code (12 NYCRR) § 23-1.21(b)(4)(ii) (Ladders and Ladderways) as they show the ladder was not on a slippery surface, but on asphalt, it had appropriate rubber feet, and no unsecured objects were used as footings. Further, given plaintiff was ascending the ladder to reach his work area, Industrial Code (12 NYCRR) § 23-1.21(b)(4)(iv) was inapplicable as it pertains “only when work is being performed from a ladder.”
 

Morales v 2400 Ryer Ave. Realty, LLC
January 28, 2021
Appellate Division, First Department

 
Plaintiff was standing on an A-frame ladder in the closed position, which allegedly slipped out from under him, causing him to fall. The trial court denied plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim against defendants.
 
Labor Law § 240(1) (MAS)
The First Department unanimously reversed and granted plaintiff summary judgment. His proof demonstrated the ladder on which he was standing at the time he fell slipped out from under him, and sufficiently established his prima facie entitlement to summary judgment under Labor Law § 240(1) because he “gave a specific reason why he used the ladder in the closed position.” The Court rejected defendants’ claim that plaintiff was a recalcitrant worker or otherwise was the sole proximate cause of his accident. Ultimately, the Court found defendants’ contentions would amount, at most, to comparative negligence, which is not a defense under this statute.
 
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, the Court found plaintiff had a good reason to stand on the ladder in the closed position. Also, remember that a worker’s decision to use an A-frame ladder in the closed position is not a per se reason to declare him the sole proximate cause of an accident.
 

Yong Qiao Zhao v A.T.C. Constr. Group Corp.
January 13, 2021
Appellate Division, Second Department

 
Plaintiff’s employer, defendant A.T.C., was hired to perform renovation work in connection with a construction project at 225 Rector Place, in Manhattan. After completing the work, plaintiff traveled to a dumpster located on a public street in front of 237 Henry Street, where A.T.C. was performing an unrelated project for defendant 237 Henry, to dump construction debris from the construction project at 225 Rector Place. He was allegedly injured when he fell from a ladder while disposing of debris in the dumpster. The trial court granted 237 Henry’s motion for summary judgment dismissing the Labor Law § 240(1) claim and denied plaintiff’s summary judgment motion on the § 240(1) claim against 237 Henry and A.T.C.
 
Labor Law § 240(1) (MAS)
The Second Department affirmed dismissal of the claims against 237 Henry, who established plaintiff’s work was exclusively at 225 Rector Place and was never hired by any entity to perform work at the 237 Henry Street residence. Thus, plaintiff was not permitted or suffered by 237 Henry to perform any work on its behalf, and it did not own 225 Rector Place nor contract for any work at that location. The Court also affirmed the trial court’s finding of the existence of questions of fact concerning the Labor Law § 240(1) claim against A.T.C.
 
PRACTICE POINT:  To invoke the extraordinary protections under § 240(1) and come within the special class of workers for whose benefit liability is imposed on contractors, owners, and their agents, a plaintiff must demonstrate that he was both permitted or suffered to work on a building or structure, and was hired by someone, such as the owner, contractor, or their agent. This case is a great example of the need for there to be “some nexus between the owner and the worker, whether by a lease agreement or grant of an easement, or other property interest.”
 
 

Giglio v Turner Constr. Co.
January 20, 2021
Appellate Division, Second Department

 
Plaintiff was working on a project to construct a new building for the defendant West Village Residences, LLC, which, in turn, hired defendant Turner as the construction manager. Turner hired plaintiff’s employer, nonparty Port Morris Tile, to perform tile work at the worksite. Plaintiff, who was tasked with cutting and placing tiles in a bathroom, allegedly slipped and fell on a discarded plastic sheet used to package the tiles, which had become wet due to the spray from a nearby wet saw used to cut the tiles.  The trial court denied defendants’ motion for summary judgment dismissing the Labor Law § 241(6) predicated on a violation of 12 NYCRR 23-1.7(d) as well as the Labor Law § 200 and common-law negligence claims.
 
Labor Law § 241(6) (TPW)
The Second Department reversed the trial court’s denial of defendants’ motions for summary judgment seeking dismissal of the Labor Law § 241(6) cause of action. Section 23-1.7(d) requires employers to remove or cover “foreign substance[s]” which may cause slippery footing.  However, when the foreign substance is naturally the result of the ongoing work, it is not generally considered a foreign substance under Section 23-1.7(d). The wet plastic sheet upon which plaintiff fell was a direct and natural results of the ongoing tile work and therefore not a foreign substance.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department reversed the trial court’s order denying defendants’ motion for summary judgment as to Labor Law § 200 and common-law negligence. The Court determined this was a “means and methods” case, as the accident arose directly from the manner in which plaintiff's work was performed, which generated both the water from the use of the wet saw, as well as the discarded plastic sheet from the tiles’ packaging. Moreover, the evidence further established that they did not exercise supervision or control over the performance of the injury-producing work.  Accordingly, summary judgment should have been granted.
 
 

Reyes v Astoria 31st St. Developers, LLC
January 20, 2021
Appellate Division, Second Department

 
Plaintiff was injured while working as an ironworker for a nonparty subcontractor at an excavation site. Construction of a new building was underway and excavation for the foundation was complete. Prior to the happening of the accident, plaintiff was performing his assigned task of wrapping up and tying pieces of rebar which were four-to-five-feet long at the bottom of the excavation site. He ceased performing his assigned task when, upon observing coworkers having difficulty attempting to pass a 30-foot-long piece of rebar manually across the excavation site at ground-level, he ran up the 9-foot hill to assist them. As plaintiff grabbed the 30-foot-long piece of rebar, the rebar shook, allegedly causing him to lose his footing and to roll down the hill to the bottom of the excavation site. The trial court denied plaintiff’s motion for summary judgment on the Labor Law §§ 240(1), 241(6), and 200 claims and granted defendants’ motion for summary judgment dismissing the same claims.
 
Labor Law § 240(1) (MAS)
The Second Department affirmed dismissal of this claim as defendants submitted deposition testimony establishing that the accident was not caused by an elevation-related risk contemplated by the statute, and plaintiff was not authorized or instructed to engage in passing the 30-foot-long rebar piece across the excavation site. Therefore, the Court deemed plaintiff’s actions the sole proximate cause of his injuries.

PRACTICE POINT: Running up a 9-foot hill and then falling down it again does not involve an extraordinary elevation-related risk protected under Labor Law § 240(1).
 
Labor Law § 241(6) (TPW)
The Second Department affirmed the trial court’s decision granting defendants’ motion for summary judgment as to the claim for violation of Labor Law § 241(6). As a preliminary matter, plaintiff’s alleged violation of Industrial Code 12 NYCRR 23-4.1(b) (Excavating Operations; General Requirements; Prohibited Entry) was deemed not sufficiently specific to support a Labor Law § 241(6) claim.  Moreover, alleged violations of Industrial Code (12 NYCRR) §§ 23-1.7(b) (Protection from General Hazards; Falling Hazards) and 23-4.1(a) (Excavating Operations; General Requirements; Stability of Structure) were deemed inapplicable given the underlying facts and, even if they had been applicable, they were not violated.

Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed the order granting defendants’ motion and denying plaintiff’s motion for summary judgment as to Labor Law § 200. The court held the testimony in the case demonstrated that defendants lacked authority to supervise or control the plaintiff’s work (“means and methods”), the condition of the excavation site was an open and obvious one that was readily observable by the reasonable use of one’s senses, and it was not inherently dangerous (“hazardous condition”). 
 

Debennedetto v Chetrit
January 27, 2021
Appellate Division, Second Department

 
Plaintiff was injured while performing carpentry work at property owned by the Chetrits. The Chetrits retained defendant J & S to act as general contractor.  J & S retained plaintiff’s employer, nonparty Vek Construction, to do framing and other work for the project, which consisted of the construction of a one-family house. To create a scaffold, plaintiff and his coworkers affixed triangular, metal brackets to the outside of the house, and then laid wooden planks across the brackets. He stepped through the window frame onto the scaffold and, shortly thereafter, the scaffold collapsed, causing him to fall to the ground below.
 
The trial court denied Chetrits’ summary judgment motion seeking dismissal of the complaint and all crossclaims against them, denied J & S’s summary judgment motion seeking dismissal of all claims against it, and denied plaintiff’s motion for partialsummary judgment on his Labor Law § 240(1) claim.
 
Labor Law § 240(1) (MAS)
The Second Department reversed and dismissed the Labor Law claims against the Chetrits, who established their entitlement to the homeowners’ exemption through evidence that they were constructing the subject one-family home to be used, on a noncommercial basis, by their son and his family, and that they did not direct or control the work. That they were also building a separate one-family house on abutting property for commercial purposes does not affect their status regarding plaintiff’s accident, because it occurred at a house they were constructing for a noncommercial purpose.
 
The Court also held plaintiff was entitled to summary judgment against J & S. The collapse of a scaffold or ladder, for no apparent reason, while a plaintiff is engaged in an enumerated activity, creates a presumption that the ladder or scaffold did not afford proper protection. Contrary to J & S’s contention, plaintiff’s participation, with another worker, in the assembly of the scaffold does not raise a triable issue of fact as to whether he was the sole proximate cause of his accident.
 
PRACTICE POINT: Whether the homeowners’ exemption applies turns on the nature of the site and the purpose of the work being performed and must be based on the owner’s intention at the time of the accident. If the property has both residential and commercial uses, courts use a flexible use and purpose test to determine whether the work contracted for directly relates to the residential use of the building. As the injury-producing work in this case involved the noncommercial home, defendants were entitled to the application of the exemption.
 
Labor Law § 241(6) (TPW)
The Second Department affirmed in part and revised in part on the claimed Labor Law § 241(6) Industrial Code violations. As to Section 23-5.1(c)(1), which provides that all scaffolding shall be constructed to bear four times (4x) the maximum weight required when in use and Section 5.1(e)(5) which provides an 18-inch minimum width of every planked scaffold platform, defendants failed to establish that the alleged violations were not a proximate cause of the plaintiff’s injuries. Further, defendants were unable to establish as a matter of law that the design and construction of the scaffold (12 NYCRR 23-5.3(c), (d)(2)(vi), and (d)(3)), the design and use of the safety railings (12 NYCRR 23-5.1(j), 23-5.3(e), or 23-5.13(d)) and the erection and removal of the scaffold was completed under the supervision of a designated person (12 NYCRR 23-5.1(h)) or that those sections were inapplicable given the circumstances.
 
However, defendants did establish entitlement to judgment as a matter of law dismissing 12 = NYCRR 5.1(f) as it was a general, rather than specific, safety standard and therefore, insufficient to support a Labor Law § 241(6) claim.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department reversed the trial court’s order denying defendants’ motion for summary judgment as to Labor Law § 200 and common-law negligence. In this “means and methods” case, the Court stated, “To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed, a defendant must have authority to exercise supervision and control over the work.” It held Chetrits and J & S demonstrated they did not supervise, direct, or otherwise control plaintiff’s work. Moreover, maintaining general supervisory authority at the site to oversee the progress of the work and inspecting the work product is insufficient to impose liability under Labor Law § 200, as is the authority to stop unsafe work at the site.
 
Indemnity Issues in Labor Law (BFM)
As the agreement between J & S and the Chetrits did not contain a provision requiring J & S to indemnify the Chetrits, J & S was entitled to judgment as a matter of law dismissing the Chetrits’ crossclaim for contractual indemnification.

J & S also established its prima facie entitlement to judgment as a matter of law dismissing the Chetrits’ crossclaim for common-law indemnification by demonstrating that it did not actually direct or supervise plaintiff's work. In reaching its decision, the Second Department noted that "the principle of common-law, or implied, indemnification permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party."  The Court further noted, that “liability for indemnification may only be imposed against those parties (i.e., indemnitors) who exercise actual supervision."
 

Eliassian v G.F. Constr., Inc.
January 27, 2021
Appellate Division, Second Department

 
Plaintiff is the owner of property that includes a single-family home. In his capacity as the president of Alliance, he hired defendant to perform excavation work on a renovation project at the property. He allegedly was injured while on the site to inspect the work when he stepped on a low concrete retaining wall and slipped on oil, which allegedly had leaked from a defective hydraulic line of a backhoe that was brought onto defendant’s property and used by defendant for its work. The trial court denied defendant’s motion for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims, which was denied, and that denial was affirmed on appeal (see Eliassian v G.F. Constr., Inc., 163 AD3d 528). Following additional discovery, the trial court again denied defendant’s motion for summary judgment dismissing the complaint.
 
Labor Law § 240(1) (MAS)
The Second Department reversed the trial court and dismissed this claim on the grounds that plaintiff was not exposed to the type of elevation-related hazard contemplated under Labor Law § 240(1). Defendants’ evidence established that the height differential from the concrete retaining wall to the ground did not constitute a physically significant elevation differential covered by the statute.
 
PRACTICE POINT: Our analysis of every Labor Law case starts with the same four questions. Is plaintiff an appropriate plaintiff? Is defendant an appropriate defendant? Is the project one which is covered under the enumerated activities for which plaintiff is afforded the protections of the Labor Law? Was the specific mechanism of injury one which is derived from a lack of an adequate safety device? Here, the court held that defendant failed to establish that plaintiff is not a proper plaintiff under the Labor Law since he was only inspecting work performed by subcontractors and found a question of fact as to whether it was an appropriate defendant based on its status as a subcontractor, but still dismissed the claim because plaintiff was not exposed to the type of elevation-related hazard contemplated under the statute (i.e., the fourth question was answered in the negative).
 
Labor Law § 241(6) (TPW)
The Second Department affirmed the underlying decision wherein defendant was denied summary judgment as to the Labor Law § 241(6) claim based on the theory that = it was not a proper Labor Law defendant. Despite being a subcontractor on the project, a subcontractor may be liable for violations of the Labor Law if the owner or general contractor delegates to the subcontractor the duty to conform to the requirements of the Labor Law by granting the subcontractor the authority to supervise and control the work which brought about the injury. Triable issues of fact were found to exist as to whether defendant had sufficient control of the work site and/or was delegated the duty to enforce safety protocols at the time of the accident. 
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed the trial court’s order denying defendants’ motion for summary judgment as to Labor Law § 200 and common-law negligence. In this “hazardous condition on the premises” case, it held defendant failed to demonstrate that it did not create or have notice of the allegedly dangerous condition.
 

Gancarz v Brooklyn Pier 1 Residential Owner, L.P.
January 27, 2021
Appellate Division, Second Department

 
Plaintiff, a carpenter employed at the construction site of defendants ,Brooklyn Pier 1 Residential Owner, L.P., Brooklyn Pier 1 Hotel Owner, L.P., and Hudson Meridian Construction Group, allegedly was injured when he slipped and fell on a wet piece of paper in the basement area of the site. The trial court granted defendants’ motion for summary judgment dismissing the Labor Law § 241(6) claim based on a violation of 12 NYCRR 23-1.7(d), but denied that portion of defendants’ motion seeking dismissal of Labor Law § 241(6) based on a violation of 12 NYCRR 23-1.7(e)(1) and (2), as well as the § 200 and common-law negligence claims.
 
Labor Law § 241(6) (TPW)
The Second Department modified the decision of the trial court in finding plaintiff’s alleged injury occurred in an area in which construction, excavation, or demolition work was being performed and, therefore, a locale within the construction context as anticipated under 12 NYCRR 23-1.7(d) (Protection from General Hazards; Slipping Hazards). Further the slip and fall occurred on a concrete surface which was a “floor” within the meaning of 12 NYCRR 23-1.7(d).
 
However, plaintiff’s claim predicated upon violation of 12 NYCRR 23-1.7(e)(1) (Protection from General Hazards; Tripping and Other Hazards; Passageways) should have been dismissed as plaintiff fell in an open basement area and, therefore, fell in a work area as contemplated by 12 NYCRR 23-1.7(e)(2) rather than in a “passageway” under 12 NYCRR 23-1.7(e)(1).
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed the trial court’s order denying defendants’ motion for summary judgment as to Labor Law § 200 and common-law negligence. In another “hazardous condition on the premises” case, it held defendants failed to establish that they did not create or have notice of the dangerous condition in the underground area.
 

Washington v City of New York
January 27, 2021
Appellate Division, Second Department

 
Plaintiff was working as an electrician for a nonparty electrical contractor at a wastewater treatment plant and allegedly was injured when he fell from a temporary stair made of cinder blocks. His first notice of claim against the City of New York alleged his accident occurred in a building located on Greenpoint Avenue in Brooklyn and was caused by the City’s negligence and carelessness. He served a second notice of claim against DEP alleging the accident was also caused by DEP’s negligence and carelessness. Plaintiff testified at his 50-h examination that while ascending an interior stairway, he was required to step onto two cinder blocks at the top of the stairs in order to climb through a hatchway door onto the roof. One of the cinder blocks fell over as he stepped on it, causing him to twist his back and left knee.
 
He thereafter commenced suit, alleging violations of the Labor Law as well as common-law negligence against defendants. The trial court granted plaintiff’s motion for partial liability on his Labor Law § 240(1) and denied defendants’ summary judgment motion seeking dismissal of the §§ 240(1), 241(6), 200, and common-law negligence claims.
 
Labor Law § 240(1) (MAS)
The Second Department reversed and dismissed the Labor Law § 240(1) claims against the City and DEP. Here, each notice of claim was limited to an allegation that plaintiff was injured due to the City’s negligence. There were no allegations that he was working as an electrician as part of a construction project or that Labor Law § 240(1) applied. Thus, the Court barred the Labor Law claims.
 
PRACTICE POINT: General Municipal Law § 50-e(2) requires that a notice of claim must set forth “the nature of the claim” and “the time when, the place where and the manner in which the claim arose.” The requirements are met when the notice describes the incident with sufficient particularity so defendant can conduct a proper investigation and assess the merits of the claim. A court may consider evidence adduced at a 50-h hearing to correct a good faith and nonprejudicial technical mistake, omission, irregularity, or defect in the notice the claim. However, the evidence adduced at the 50-h hearing cannot be used to substantively change the nature of the claim or the theory of liability pursuant to General Municipal Law § 50-e(6). In this case, the failure to allege facts supporting claims for violations of the Labor Law in the notice of claim prohibited plaintiff from raising those claims in his complaint.
 
Labor Law § 241(6) (TPW)
The Second Department reversed and granted those branches of defendants’ motions seeking dismissal of the Labor Law § 241(6) claim. Given the absence of any allegations in the underlying Notice of Claim, direct or indirect, that plaintiff was working as an electrician as part of a construction project at the time of the accident, and that the provisions of Labor Law §§ 200, 240(1), and 241(6) applied, the Labor Law § 241(6) cause of action was deemed foreclosed.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department reversed the trial court’s order denying defendants’ motion for summary judgment as to Plaintiff’s Labor Law § 200 claim for the same reasons as above.  As for common-law negligence, however, the Notice of Claim properly alleged that the injuries were due to the negligence of Defendants. Moreover, the trial court correctly denied the defendants’ motion for summary judgment as to common-law negligence as they failed to meet their burden of proof. It noted, in order to obtain summary judgment, a Defendant must demonstrate that it did not create a hazardous condition on the premises, and it did not have actual or constructive notice of that condition for a sufficient length of time to discover it and remedy the condition. In this case, defendants did not submit any evidence demonstrating they did not create the temporary cinder block stair, nor did they submit any evidence demonstrating their lack of notice of the cinder blocks.  Accordingly, that portion of the motion was properly denied.
 

New York Industrial Code Regulations - (EDA)

12 NYCRR 23-1.21(e)(3)—Protection in Construction, Demolition and Excavation Operations; Ladders and ladderways; Stepladders; Stepladder footing 

Regulation § 1.21(e)(3), which pertains to stepladders, contains specific commands that support a Labor Law § 241(6) cause of action.

Croussett v Chen, 102 AD3d 448, 958 NYS2d 105 (1st Dept 2013)
 
Vega v Renaissance 632 Broadway, LLC, 103 AD3d 883, 962 NYS2d 200 (2d Dept 2013)
 
Enderlin v Hebert Indus. Insulation, Inc., 224 AD2d 1020, 638 NYS2d 262 (4th Dept 1996)

Vega held that § 23-1.21(e)(3), which requires that standing stepladders be used only on firm, level footings and that work performed from a step of a stepladder 10 feet or more above the footing either be steadied by a person standing at foot or secured against sway by mechanical means was inapplicable to accident involving ladder that was 6- to 8-feet high where plaintiff was standing less than 10 feet above footing.

 

 

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