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Celentano v City of New York
January 12, 2023
Appellate Division, First Department
Plaintiff’s decedent allegedly was injured when he tripped over a concrete cinder block at a construction site. The City defendants accepted bids for the construction of a comfort station at P.S. 100 playground in Bronx County. ZHL served as the architectural contractor on the project. Decedent was an employee of nonparty Summit Mechanical, the HVAC/mechanical contractor, and was setting up temporary heating inside a mechanical room at the time of the incident. The trial court granted ZHL’s motion for summary judgment dismissing the complaint and all crossclaims against it.
 Labor Law § 241(6) (TPW)
The First Department unanimously affirmed the trial court’s dismissal as to ZHL since it was not a general contractor within the meaning of the Labor Law. Rather, the record demonstrated that ZHL was a prime contractor, even though the construction manager for the City defendants referred to ZHL as a “general contractor” since he used the terms “general contractor” and “prime contractor” interchangeably. Additionally, ZHL was under a prime contract with the City for general construction work and had no authority over the other prime contractors or their subcontractors.
 Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed dismissal of the negligence claims, noting ZHL could be held liable if it created the condition that caused the decedent’s accident. The evidence, however, demonstrated that it did not. Although ZHL conceded its work required the use of cinder blocks, it demonstrated that it left the job site four months prior to the accident, and there was no evidence connecting it to the particular block at issue. Further, the City’s construction manager testified that he had been in the mechanical room on a regular basis during the four months between ZHL leaving the job site and the accident, and he never observed a cinder block in the middle of the room.
 Indemnity Issues in Labor Law (BFM)
The First Department affirmed the trial court’s dismissal of the City defendants' crossclaims for contractual indemnification against ZHL as the evidence established that the accident did not arise out of ZHL's work.
Mena v 5 Beekman Prop. Owner LLC
January 12, 2023
Appellate Division, First Department
Plaintiff was power washing paint off a façade of a building while standing on a scaffold and fell through a 48-inch gap between the scaffolding planks and the windows of the building. The trial court denied plaintiff's motion for summary judgment on his Labor Law §§ 240(1) and 241(6) causes of action and denied Everest Scaffolding’s motion for summary judgment dismissing the third-party complaint and crossclaims against it for contractual indemnification, common-law indemnification or contribution, and breach of contract for failure to procure insurance.
 Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court’s decision and granted summary judgment in favor of plaintiff, as his testimony demonstrated that he was not provided with a hardness or other safety device and his expert’s opinion was that, even if a harness was provided, there were no anchor points to which he could tie off. It was also undisputed that defendants did not install any safety railing on the building side of the scaffolding.
PRACTICE POINT: To establish liability under Labor Law § 240(1), a plaintiff must show that the statute was violated, and that the violation was a proximate cause of the injury. Here, plaintiff’s testimony that he was not provided with any safety devices that would have prevented him from falling through the gap between the scaffolding and the building is enough to demonstrate a violation of the statute and proximate cause.
Labor Law § 241(6) (TPW)
Considering the First Department’s decision on the Labor Law § 240(1) claim, the Court declined to address to Labor Law § 241(6) claim.
Indemnity Issues in Labor Law (BFM)
Having found an issue of fact as to whether Everest negligently erected the scaffold, the First Department affirmed the trial court’s denial of Everest’s motion to dismiss the third-party complaint and crossclaims against it for contractual indemnification, common-law indemnification, and/or contribution.
Ruiz v Roosevelt Terrace Coop., Inc.
January 17, 2023
Appellate Division, First Department
While performing demolition work in an underground parking garage, plaintiff allegedly was electrocuted. According to plaintiff, the electrocution occurred when the chisel of the jackhammer that he was using came into contact with an electrical conduit affixed in a concrete column. The electricity in the underground parking lot was supposed to be turned off while demolition work was being performed. The trial court granted plaintiff's motion for partial summary judgment under Labor Law § 241(6) and denied DJM’s motion for summary judgment dismissing the Labor Law § 200 claim against it.
Labor Law § 241(6) (TPW)
The First Department unanimously modified the trial court’s decision, on the law, to deny plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 241(6) claim. Plaintiff alleged the presence of a live electrical conduit was a violation of Industrial Code (12 NYCRR) §§ 23-1.13(b)(3) and (4). However, the Court noted that other evidence in the record suggested the electrocution resulted from a loose wire that struck plaintiff's leg. The conflicting evidence raised a triable issue as to the how plaintiff's injury came about, precluding resolution of the claim on motion practice.
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed denial of DJM’s summary judgment motion as to Labor Law § 200, finding an issue of fact as to whether its failure to turn off the electricity in the underground parking garage was a proximate cause of plaintiff's accident.
Sotelo v TRM Contr., LP
January 17, 2023
Appellate Division, First Department
Plaintiff testified that he fell into a ditch that was covered with a tarp-like material while on his way to the bathroom. The trial court denied plaintiff's motion for summary judgment on liability on his Labor Law claims.
Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court’s decision and granted summary judgment to plaintiff because there were no factual issues as to whether the ditch into which plaintiff allegedly fell actually existed at the time of the incident. The Court held the testimony of plaintiff’s employer and defendant’s project manager, as well as the post-accident photographs submitted by defendants, did not adequately establish the absence of a ditch at the time of the incident; therefore, they were insufficient to raise a triable issue of fact.
The Court also rejected defendants’ sole proximate cause argument that plaintiff chose to use a bathroom further away from his workstation and attempted to cross over the ditch without first inspecting the covering that had replaced the plank before stepping on it because those facts still show that plaintiff’s incident was the result of the absence of a safety device and only raised issues of comparative negligence, which is not a defense to a Labor Law § 240(1) claim.
The fact that plaintiff was the only witness to his incident also does not preclude summary judgment in his favor because nothing in the record controverted his account of the incident or called into question his credibility.
PRACTICE POINT: To prove 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) chose for no good reason not to do so; and (4) would not have been injured had they not made that choice. Arguing comparative negligence is not the same as the sole proximate cause, and if defendant cannot prove all four elements of the defense, then it cannot create an issue of fact regarding proximate cause sufficient to defeat plaintiff’s motion.
Goncalves v City of New York
January 19, 2023
Appellate Division, First Department
On the day of the incident, plaintiff was assisting with loading water main pipes onto a flatbed trailer and allegedly was injured when the loader operator lost control of one of the water pipes, causing it to roll off the loader’s forks and fall onto the street. As he attempted to arrest the progression of the rolling water pipe by jamming a wooden plank underneath it, the pipe kept rolling and injured his leg. The trial court denied plaintiff’s motion for partial summary judgment on the issue of liability under Labor Law § 240(1).
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s decision because plaintiff failed to meet his burden of establishing that the alleged incident was the type of gravity-related event contemplated under the statute. Plaintiff’s testimony also raised issues of fact whether his own actions were the sole proximate cause of his injury as he admitted at his General Municipal Law § 50-h testimony that he did not see what caused the pipe to start rolling.
PRACTICE POINT: This case is a great example of the danger of filing pre-discovery summary judgment motions, as the Court in this case could not determine, based on the limited record, whether the pipe was the type of object that needed securing for purposes of the injury-producing work or whether plaintiff’s own actions (here, in attempting to stop the rolling water pipe) were the sole proximate cause of the incident. Moreover, as parties generally get only one bite at the apple, unless it was denied without prejudice, Plaintiff lost his chance to make the motion once discovery is completed.
Arias v 139 E. 56th St. Landlord, LLC
January 24, 2023
Appellate Division, First Department
Plaintiff was cutting wooden beams, with a chainsaw, on the roof, during the demolition of a building, when the chainsaw allegedly got stuck, causing him to fall 10-to-15 feet. According to plaintiff, his safety harness and retractable lanyard, which were tied off to an adjacent wooden beam, caught him and prevented him from hitting the floor below. As he fell, he hit his head on a wooden beam and injured his right shoulder and his back from the harness and lanyard catching him. Defendant 139 East 56th Street Landlord owned the building and Hunter Roberts Construction was the general contractor, who subcontracted with nonparty Titan, plaintiff's employer, for demolition work. The trial court denied plaintiff's motion for summary judgment under Labor Law § 240(1).
Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court’s decision and granted summary judgment to plaintiff because the record established that the safety devices “proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity”. The Court noted that plaintiff’s injuries demonstrated the lack of adequate protection. Defendants’ contention that a triable issue of fact exists as to whether plaintiff hit the floor below was unavailing since the statute was violated under either version of the incident.
PRACTICE POINT: The fact that the safety harness and lanyard spared plaintiff from falling to the ground by arresting his fall before he struck the ground does not preclude recovery under Labor Law § 240(1) because the safety devices (safety harness and lanyard) failed to provide proper protection against elevation-related risks, and such failure was a proximate cause of plaintiff’s injuries.
Sangare v 985 Bruckner Blvd. Hous. Dev. Fund Corp.
January 24, 2023
Appellate Division, First Department
Plaintiff testified that a scaffold above where he was cleaning collapsed, causing portions of it to strike him. The trial court granted plaintiff's motion for partial summary judgment on liability under Labor Law § 240(1).
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s decision. Contrary to Defendants’ contention, the motion was not premature, as Defendants failed to show what discovery was needed and what facts additional discovery could be expected to reveal. Defendants’ argument that all or some of the injuries were not caused by the incident is not an issue of liability, but rather an issue of damages, which remains unresolved. The Court noted that the damages dispute did not raise credibility issues relative to the issues of liability where plaintiff gave no inconsistent version of how the incident occurred, nor is there any evidence contradicting the allegation that the scaffold collapsed.
PRACTICE POINT: CPLR § 3212(f) permits a party opposing summary judgment to obtain further discovery when it appears that facts supporting the position of that party exist but cannot be stated. Where facts essential to justify opposition to a summary judgment motion are exclusively within the knowledge and control of the movant, summary judgment may be denied. That is especially true where the opposing party has not had a reasonable opportunity for disclosure prior to the filing of the motion. However, the party invoking that section must provide a proper evidentiary basis supporting its request for further discovery, or risk losing the motion, like defendants in this case.
Taopanta v 1211 6th Ave. Prop. Owner, LLC.
January 26, 2023
Appellate Division, First Department
Plaintiff allegedly was injured while he and two coworkers were disposing of construction debris, including a glass and metal door, by lifting it into a truck by hand, when the door fell, causing plaintiff's hand to be crushed between the door and the lip of the truck. As a result, plaintiff’s finger was severed from his hand. He testified there were no hoists, forklifts, or other lifting devices on the work site, and the door fell because it was too heavy for him and his coworkers to hold up without such a device. He also testified that he knew the door weighed about 300 pounds because he could lift 100 pounds by himself, but he and his coworker were unable to lift it together. The trial court denied plaintiff's motion for partial summary judgment on liability under his Labor Law § 240(1) claim.
Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court’s decision and granted plaintiff summary judgment. The affidavit of his employer’s foreman failed to raise a question of fact as to the door’s weight, since he did not provide any basis for his claim that it weighed 100-120 pounds and could easily be lifted by two workers without the use of a hoist or forklift. The Court held the precise weight of the door, whether it fell from a height of 7 or 3½ feet or whether a dolly was being used when it fell were not material, because it was undisputed that no lifting devices contemplated under Labor Law § 240(1) were available at the job site and plaintiff’s injuries flowed “directly from the application of the force of gravity to the object,” as he and his coworkers attempted to lift it into the truck by hand. Given that the gravitational force in this case was strong enough to sever plaintiff’s finger from his hand, it held this was clearly the kind of harm the statute was designed to protect against.
PRACTICE POINT: This case is a good example of a valid post-Runner Labor Law § 240(1) claim. Irrespective of the distance over which it fell, the injury was proximately caused by the effect of gravity on the door, which created a significant force capable of severing the injured worker’s finger. Further, it is undisputed there were no safety devices provided to protect against the elevation-related risks plaintiff faced, as he and his co-workers lifted the door.
Vega v Metropolitan Transp. Auth.
January 31, 2023
Appellate Division, First Department
Plaintiff and his fellow concrete laborers were directed to move a section of steel track rail that weighed several hundred pounds, in order to dig holes and pour concrete footings beneath the track rail at Grand Central Station in Manhattan. The MTA defendants owned and/or controlled the premises. As the laborers lacked equipment to readily move the rail section, they improvised by making rollers out of pipe sections beneath the rail by using a crowbar to lift the rail. The laborers then bound rebar wire around another small piece of pipe before threading the wire through an eyelet hole at one end of the rail to pull the rail with the intent to move it along the roller-like pieces of cut pipe beneath it. Plaintiff and a coworker attempted to move the rail using the makeshift pipe-handle while another worker stood at the other end of the rail using the crowbar to push the rail forward in the direction of the workers at the front of the rail. Suddenly, the makeshift handle gave way and plaintiff fell backwards, striking his head and body against a pile of cut rails. The trial court denied the MTA defendants’ motion for summary judgment dismissing the Labor Law § 240(1) claim.
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s decision because the record demonstrates triable issues of fact as to whether the laborers were engaged in some lifting of the rail as they tried to move it, whether the rail required securing to move it safely, whether a safety device of the kind enumerated in Labor Law § 240(1) was warranted and usable in the track area in question, and whether plaintiff’s injuries were a direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.
PRACTICE POINT: A defendant is not entitled to summary judgment dismissing a Labor Law § 240(1) claim if there are issues of fact as to whether the injured worker’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.
Krarunzhiy v 91 Cent. Park W. Owners Corp.
January 18, 2023
Appellate Division, Second Department
Ohar, a mason and painter, was allegedly injured while working on a construction project. While on his way to the locker room at the end of the workday, he was carrying a bucket of glue and attempting to descend temporary stairs leading from an upper scaffold to a lower scaffold, when he tripped over a rug-covered decorative metal building fixture located at the top of stairs and fell “in front of the steps” to the lower scaffold. The rug-covered fixture protruded from and was attached to the building. At the time of the incident, the scaffold stairs lacked a handrail. The trial court granted the owner’s motion for summary judgment dismissing the Labor Law § 240(1) claim and denied plaintiff's cross-motion for summary judgment on that claim.
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s decision because the owner established that Ohar’s injury resulted from a separate hazard wholly unrelated to the risk that brought about the need for the safety device in the first instance, and therefore, he was not entitled to the protection under Labor Law § 240(1). The presence of the rug-covered metal fixture at the top of the stairs that Ohar tripped over, was not “the risk which brought about the need for the [scaffold and stairs] in the first instance”. In opposition, the Court held that plaintiff failed to raise a triable issue of fact, which also resulted in plaintiff’s failure to meet her prima facie burden on that branch of her cross-motion.
PRACTICE POINT: This case demonstrates that Labor Law § 240(1) does not apply where the alleged injury flowed from a hazard on the worksite which was unrelated to the reason for the § 240(1) safety device in the first instance, and which did not interfere with or increase the danger of injury in the performance of the elevation-related task. In such cases, the proximate cause of the accident was due to “the usual and ordinary dangers at a construction site,” and not one of the special hazards contemplated by § 240(1).
Stewart v Brookfield Off. Props., Inc.
January 18, 2023
Appellate Division, Second Department
Plaintiff allegedly was injured when he fell at a construction site while installing a prefabricated lighting fixture. He testified at his deposition that he stepped off a ladder and immediately tripped on a raised portion of the concrete floor. The trial court granted the motion of defendants for summary judgment dismissing the Labor Law § 241(6) claim predicated on an alleged violation of 12 NYCRR § 23-1.7(e)(1).
Labor Law § 241(6) (TPW)
The Second Department affirmed the trial court’s dismissal of much of the cause of action alleging a violation of Labor Law § 241(6) as predicated upon 12 NYCRR § 23-1.7(e)(1). Defendants established that 12 NYCRR § 23-1.7(e)(1), which requires owners and general contractors, inter alia, to keep all passageways free of obstructions which could cause tripping, is inapplicable because the site where plaintiff allegedly tripped was not a passageway. Contrary to plaintiff's contention, there was nothing in the record to suggest that the area in which he fell was flanked by piles of construction materials such that it could be considered a passageway and a self-serving affidavit submitted by plaintiff failed to raise a triable issue of fact as it was inconsistent with his earlier deposition testimony.
Calle v City of New York
January 25, 2023
Appellate Division, Second Department
Plaintiff, a laborer at a construction site, allegedly was injured while exiting an excavation, as he stepped on a wooden cross brace, which then collapsed, causing him to fall five-to-six feet to the bottom of the excavation. The trial court denied defendants' motion for summary judgment dismissing the complaint against the City.
Labor Law § 240(1) (MAS)
The Second Department reversed the trial court and dismissed the Labor Law § 240(1) claim based on the sole proximate cause defense, finding defendants established that plaintiff failed to use one of the ladders that were provided, and which he had been instructed to use, in exiting the excavation and, instead stepped on a wooden cross brace which was not intended as a walkway.
PRACTICE POINT: As plaintiff had been instructed to exit the excavation using one of the ladders that had been provided for that purpose; but for no good reason, chose to exit the excavation by stepping on the cross brace, and would not have been injured if he used one of the ladders, his Labor Law § 240(1) was subject to dismissal under the sole proximate cause defense.
Labor Law § 241(6) (TPW)
The Second Department reversed the trial court’s decision and granted summary judgment dismissing the complaint as asserted against the City. Insofar as plaintiff's cause of action was predicated upon violations of 12 NYCRR §§ 23-1.22(b)(2) and (4), the Court held defendants established that those regulations were inapplicable to the facts of this case, as the wooden cross brace from which the plaintiff fell, was not a runway or ramp constructed for the use of persons. Insofar as that cause of action was predicated upon violations of 12 NYCRR §§ 23-1.7(f) and 23-4.3, defendants established that the City did not violate those regulations, in that ladders were provided at the excavation site. In opposition, plaintiff failed to raise a triable issue of fact.
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department reversed the trial court’s decision and granted summary judgment to the City on Plaintiff’s Labor Law § 200 and common-law negligence claims. In this case, where plaintiff alleged a dangerous condition (rather than means and methods) defendants demonstrated that plaintiff's alleged injuries did not, in fact, result from a dangerous condition, but rather, were caused by plaintiff's own conduct in stepping on the wooden cross brace, which was not intended for that purpose.
Lannon v Everest Natl. Ins. Co.
January 25, 2023
Appellate Division, Second Department
Plaintiff allegedly was injured in the course of his employment as a carpenter for nonparty McM, a subcontractor hired by a general contractor, Bay Creek. Everest had issued a general liability insurance policy to McM that was in effect at the time of plaintiff's injury. Plaintiff commenced a personal injury action against Bay Creek, among others, and asserted Labor Law §§ 240(1), 200, and common-law negligence claims. While the personal injury action was still pending, plaintiff commenced an action for a judgment declaring the legal rights amongst several parties, including Everest, alleging that Everest failed to add Bay Creek as an additional insured under the policies covering McM. The trial court granted Everest's motion pursuant to CPLR § 3211(a) to dismiss the complaint in a prior declaratory judgment action, based upon plaintiff's lack of standing, noting that plaintiff had not alleged that he had satisfied the prerequisites of Insurance Law § 3420.
After obtaining a judgment in the personal injury action against Bay Creek, plaintiff commenced the instant action for a declaratory judgment alleging that McM was to add Bay Creek as an additional insured. The trial court then, among other things, granted Everest’s motion, pursuant to CPLR 3211(a)(5), to dismiss the complaint asserted against it, concluding that this action was barred by the doctrines of res judicata and collateral estoppel.
Indemnity Issues in Labor Law (BFM)
The doctrine of res judicata precludes a party from litigating a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter. The Second Department reversed the trial court and held that as the prior declaratory judgment action was dismissed based on the plaintiff's lack of standing, without the merits of the plaintiff's allegations having been reached, Everest failed to demonstrate that a judgment on the merits existed between the same parties involving the same subject matter.
The Court further held that Everest's contention that the complaint should be dismissed as barred by the doctrine of either collateral estoppel or res judicata because the plaintiff's claims in this action were predicated on his status as a subrogee of Bay Creek's rights was without merit. Everest failed to provide a judgment on the merits that determined that Everest need not indemnify Bay Creek.
Nooney v Queensborough Pub. Lib.
January 25, 2023
Appellate Division, Second Department
Plaintiff allegedly was injured at QPL’s branch in South Ozone Park, a property owned by the City of New York. Plaintiff was employed by QPL as a library maintainer, a position that required him to perform various types of repair and maintenance tasks at QPL's library branches. On the date of the accident, he was tasked with replacing five or six water-damaged ceiling tiles in the subject library's auditorium with new ones. He used an A-frame ladder to perform this work. Since there was insufficient space in the area under the damaged tiles to open the ladder in a locked position, he leaned it against the top of a nearby door frame in the closed position. After he finished replacing the tiles and began to descend the ladder, it unexpectedly moved, causing him to fall.
The trial court denied plaintiffs' motion for summary judgment under Labor Law §§ 240(1) and 241(6) against defendant and granted defendant's motion for summary judgment dismissing the complaint against it.
Labor Law § 240(1) (MAS)
The Second Department reversed the trial court’s decision and denied defendant’s motion because defendant failed to establish that the tasks plaintiff was performing at the time of his incident were associated with routine maintenance, which is not a covered activity under Labor Law §§ 240(1) and 241(6), rather than repair work, which may be covered, even if it was not part of a larger renovation project. The Court held it could not be determined, as a matter of law, whether plaintiff was engaged in repair work or routine maintenance when he was injured.
PRACTICE POINT: If defendant cannot demonstrate that the injury-producing activity “involved replacing components that require replacement in the course of normal wear and tear”, which is routine maintenance and not covered by Labor Law § 240(1), then defendant cannot meet its burden and thus its summary judgment motion will be denied.
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed dismissal of the Labor Law § 200 and common-law negligence claims and rejected plaintiff’s contention that the motion was improperly granted as to those claims because it was raised for the first time on appeal, and thus, was not considered by the Court.
PRACTICE POINT: If you don’t make an argument at the trial court level, you generally cannot raise it for the first time on appeal.
 New York Industrial Code Regulations (EDA)
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