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Labor Law Pointers - Volume X, No. 4


 

Labor Law Pointers

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

Volume X, No. 4
Wednesday, March 3, 2021
From the Editor:

Do you have a situation?  We love situations. 
 
I feel the need to explain my opening line from time to time. Dan Kohane, in his Coverage Pointers newsletter always started with that same opening. I asked him about it one day and he told me that he gets calls that so often would start with “Hey Dan, I have a situation, can you help me?” I chuckled a little and moved on with my life. When I started Labor Law Pointers, within a few days of my first edition, I received a call that started “Hey David, I have this situation, can you help me?” So please, if you have a situation, call, email, text, stop by the office or grab me in the airport and ask as we not only enjoy being able to help, but we also love the challenge, and we will always help.
 
This month, as so many are getting the vaccine, we had a setback as myself and several team members are down and not quite out with Covid. While none of us have a severe case, none of us is in the hospital or on oxygen thank God, it is certainly quite uncomfortable. To add insult to injury, being quarantined in the house, alone, I do not even have the desire to order a pizza with exactly what I want on it, a rare luxury when you have a family with differing tastes, as I cannot taste or smell anything. Our hearts go out to the many, many people who have lost family and friends to this virus. I was only two days away from getting my first shot when I tested positive.   
 
The show must go on. We are in our 10th year of providing analysis and insight to all things Labor Law and Risk Transfer related and have not missed a publishing date yet, not for Christmas, not during a blizzard and not for illness. Duties have been moved around to help the more seriously affected, but the newsletter is out on time. A nod toward the bar, I had a complex summary judgment motion which had to be filed on Monday. I was a mess last Friday and through the weekend, and when I reached out to opposing counsel to seek an extension to file, not only was it agreed to but he drafted the stipulation for me to send to the court. In the end, we are all in this together. I have always taught the attorneys who I have been lucky enough to mentor and lead that the practice of law starts with that simple philosophy, we really are all in this together and to treat all counsel, all people for that matter, with respect and kindness and your life will be much more fulfilling. Some of the attorneys you will fight hardest with in court, no quarter ask nor given, will be the first to congratulate or console you when it is over, and then buy you a beer. That has always been my experience.
 
Enough pontification and on to the business of the month. In the first image below, the plaintiff, Erik, was busy storming the castle when, after a mighty swipe of his sword had cleared the battlement, he went to step from the top rung of the ladder which then twisted away from the rampart and he fell to the ground. The only entrance the plaintiff could use to enter the castle was the ladder. Notable, he was a mercenary; thus, a person so employed to storm the castle and had also, his day job as a mason, and had been directed to repair some loose stonework in the keep.  Labor Law § 240(1) case?  In case anyone was wondering, yes, I have been a Far Side fan for more years than I can count.
 

 
The plaintiff is an appropriate party, so employed, the owner of the castle would be a valid defendant, the job, repairing stonework would qualify and the injury was caused by the effect of gravity on the plaintiff. As to a sole proximate cause defense for stepping where he should not, the top step is clearly marked, from the photo it appears that while the only way into the castle involved using that ladder, stepping on that top rung was necessary so the plaintiff had “good cause” to use that ladder and step on that rung. Summary judgment for the plaintiff.
 
In the next photo, we have a plaintiff who has been hired by a GC, who was hired by the school district to repair a leak in the roof of a school. Regrettably for the plaintiff, the area he needed to repair was directly above a slanted roof inside the main lobby. After several attempts to reach the leak, a school employee offered to help and got a man lift and piece of plywood with which he made the shown platform to place a ladder on. Unfortunately, the plywood slipped, the ladder and plaintiff fell, and the plaintiff was injured. Is there § 240(1) liability and what other issues exist here?
 

 
The easy answer is that the plaintiff has a § 240(1) case against the owner of the building and the GC. When a ladder moves, causing a fall, there is a prima facie § 240(1) case. Any sole proximate cause defense would fail as there was no other method available to the plaintiff to complete his work. The GC would also have a common-law indemnity claim against the actively negligent school district employee by being engaged in the means and methods of the injury-producing work and thus opening itself up to common-law indemnity to any party, such as the GC, without active negligence.
 
In the next photo, the plaintiff, a dry wall installer, did not want to walk all the way to this truck to get the 12-foot A-frame ladder he had been taught to use for skylights, but rather decided, with his co-worker, to stack sawhorses on top of his low scaffold frame to reach the area while working in a new build store. They did just that and built the structure shown in the photo. The plan was working perfectly right up until the plaintiff forgot where he was and stepped forward thinking he was on the scaffold and fell to the ground. Does § 240(1) apply?
 

 
Plaintiff is a person so employed, the owner is a valid part, (though do not forget that as a municipal entity, a Notice of Claim must be filed in the first 90 days), the overall project is construction and appropriate and the plaintiff was injured by the effects of gravity, thus a prima facie case of § 240(1) liability. The sole proximate cause defense is likely not available here as the plaintiff decided upon and constructed the method of doing his work not alone but in concert with a co-defendant. We would argue sole proximate cause all day, but it may not work. We would also argue that the plaintiff did not fall due to a failure of the safety device, the stack of sawhorses, but rather because he simple forgot where he was. That defense should work any time the safety device is appropriate; however, that stack he was standing on does not appear to be appropriate to anyone.
 
In this photo, we have mathematicians working for NASA. When one of them falls from a ladder while working on a critical calculation, will they have a § 240(1) claim?
 

 
The plaintiff would be a person so employed, would be able to sue the owner of the property, was injured by the effects of gravity but was not engaged in a protected activity. As a refresher, protected activities include, but are limited to, the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure. None of those activities include doing calculations. I do love this picture.
 
That’s it for this month. Please stay safe out there as we are in the home stretch with this pandemic but do not let your guard down. We will be back next month, healthy and ready to take on the world.
 
For anyone interested, and if you are involved in New York claims you really should be interested, Dan Kohane is doing a webinar on April 16th. Details are below. It is a great program and I highly recommend it.

 
 
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]e.com to subscribe.
 
Premises Pointers This monthly electronic newsletter covers current cases, trends and developments involving premises liability and general litigation. Contact Jody Briandi at [email protected]  to subscribe.

Products Liability Pointers:   This monthly newsletter covers all areas of products liability litigation, including negligence, strict products liability, breach of warranty claims, medical device litigation, toxic and mass torts, regulatory framework and governmental agencies. Contact Chris Potenza at [email protected] to subscribe. 
 
 

 

Melaku v AGA 15th St., LLC
February 02, 2021
Appellate Division, First Department
 
Plaintiff was allegedly injured when an A-frame step ladder tipped over and fell while standing on it to reach for a tool. The trial court granted plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim, denied, in part, the building developer (AGA) and its contractor’s (Skyward), the school (Xavier), and its construction manager’s (R&R) motions seeking dismissal of the § 240(1) claim, and denied dismissal of AGA and Skyward’s contractual and common-law cross claims. 
 
Labor Law § 240(1) (MAS)
As the A-frame step ladder tipped over and fell while plaintiff was standing on it to reach for a tool, the Second Department held that plaintiff was properly granted partial summary judgment. The court rejected defendants’ sole proximate cause defense, finding it was not unreasonable for plaintiff to use the step ladder instead of the vertical rungs built onto the scaffold because it would have required the use of one of two harnesses already in use.
 
PRACTICE POINT: Where a ladder slides, shifts, tips over, or otherwise collapse for no apparent reason and causes plaintiff to fall, courts will grant a plaintiff summary judgment all day long under § 240(1).
 
Indemnity Issues in Labor Law (BFM)
The First Department dismissed the common-law indemnification crossclaims asserted against Xavier and R&R, holding that the crossclaim against R&R failed, as only plaintiff’s employer “actually directed and supervised the work” performed, and the crossclaim against Xavier failed as R&R’s liability under §240(1), acting as Xavier’s general contractor, was only vicarious.
 
 
Ordonez v One City Block, LLC
February 2, 2021
Appellate Division, First Department
 
Plaintiff, who was not wearing a safety harness, was allegedly injured when he fell from a scaffold during demolition work. Although Plaintiff failed to lock the wheels of the scaffold, it lacked guardrails and no other protective devices were provided to protect plaintiff from falling. The trial court denied plaintiffs’ motion for partial summary judgment under Labor Law § 240(1) against One City Block, Taconic, and W5 Group, LLC d/b/a Waldorf Demolition (W5).
 
Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court and determined that Taconic and W5 were statutory agents of One City Block since they had the authority to supervise and control the injury-producing work. The Court also held plaintiff established prima facie that defendants violated § 240(1) and that said violation proximately caused plaintiff’s injuries. Since the scaffold proved inadequate to protect plaintiff from falling, his failure to lock the wheels of the scaffold could not be the sole proximate cause of his accident because it would at most constitute comparative negligence, which is not a defense to a § 240(1) claim.
 
PRACTICE POINT: Where the violation of § 240(1) is a proximate cause of plaintiff’s injuries, his comparative negligence such as failing to lock the wheels of the scaffold or not wearing a safety harness can never be the sole proximate cause of plaintiff’s injuries.
 
 
Madkins v 22 Little W. 12th St., LLC
February 04, 2021
Appellate Division, First Department
 
Plaintiff was allegedly injured when bricks fell down an elevator shaft in a building under construction and struck him. The trial court denied plaintiff’s summary judgment motion under Labor Law § 240(1), denied Katselnik, 22 Little West 12th Street and LW 12th Street Holding’s summary judgment motions on Katselnik’s claims for contractual indemnification against third-party defendant Handco Welding and second third-party defendant Northeast, and granted Northeast’s motion to dismiss the second third-party complaint. 
 
Labor Law § 240(1) (MAS)
The First Department affirmed the trial court as there were issues of facts as to how the accident happened, precluding summary judgment in plaintiff’s favor under Labor Law § 240(1).
 
PRACTICE POINT:  Here, we have a basic issue essential in all types of lawsuits, but very important to us in the Labor Law practice. The shifting of the burden of proof. Remember that, as the moving party, you bear the burden of proving your case. In this case, plaintiff could not meet his burden as the trial court found issues of fact as to how the accident happened.
 
Indemnity Issues in Labor Law (BFM)
As issues of fact were found to exist as to whether Northeast generated brick debris on the day of the accident, the First Department held that Katselnik's claims against Northeast for common-law and contractual indemnification and contribution should not be dismissed. The Court went a step further, finding Katselnik entitled to conditional summary judgment on its claim for contractual indemnification against Northeast, subject to a determination whether plaintiff's accident arose out of Northeast’s work or any negligent act or omission by it. Katselnik was also entitled, subject to a determination whether it was negligent, to conditional summary judgment on its contractual indemnification claim against Handco. The broad indemnification provision in Handco's subcontract requiring it to indemnify Katselnik, was triggered as plaintiff, a Handco employee, sought damages for injuries he sustained performing Handco’s work.
 
 
Milligan v Tutor Perini Corp.
February 04, 2021
Appellate Division, First Department
 
Plaintiff was allegedly injured when he fell while using a wet and slippery wooden ladder provided by defendants for him to move between the tenth and eleventh floors of the construction site to perform his work. The trial court denied plaintiff's summary judgment motion on the issue of liability on his Labor Law § 240(1) claim. 
 
Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court and granted plaintiff’s motion because his testimony established prima facie that his work exposed him to an elevation-related risk against which defendants failed to provide him with proper protection, as required by Labor Law § 240(1). The court held the ladder was not adequate to prevent plaintiff from falling and there is no dispute that other than the ladder, no other safety devices were provided.
 
PRACTICE POINT: Defendants often oppose summary judgment motions under Labor Law § 240(1) by arguing that plaintiff was the only witness to his accident, but to successfully raise a triable issue of material fact, you must rely on evidence controverting plaintiff’s account of the accident or calling his credibility into question. In this case, defendant could not do so, but that’s why we offer an investigation team because it is crucial in every case to conduct early investigation and preserve evidence as quickly as possible before it is lost or destroyed and you never even knew it existed.
 
 
Pastorino v City of New York
February 04, 2021
Appellate Division, First Department
 
Plaintiff, a dock builder foreman employed by Commodore, was allegedly injured while attempting to ascend from a tugboat onto a barge by stepping on a tire hanging from the barge. Commodore contracted with the City to perform construction work on the Broadway Bridge spanning the Harlem River, and leased the tugboat from its owner, OMDC, to perform the work. The tugboat was a vessel covered by the Longshore and Harbor Workers’ Compensation Act (LHWCA). The trial court denied plaintiff’s motion for partial summary judgment under Labor Law § 240(1) against the City, granted the City’s motion to dismiss the § 240(1) claim and so much of the § 241(6) claim as based on a violation of Industrial Code (12 NYCRR) § 23-1.7(f), granted third-party defendant OMDC summary judgment on its indemnification counterclaim against defendant Commodore, and denied Commodore’s cross-motion to dismiss the complaint, OMDC’s counterclaims, and the City’s cross claims against it.
 
Labor Law § 240(1) (MAS)
The First Department affirmed the trial court’s finding that federal law does not preempt the Labor Law under the circumstances of this case. Although the City did not own the tugboat and barge involved in the accident, it may be held liable under Labor Law §§ 240(1) or 241(6) as “the project owner.” Additionally, the trial court properly found issues of fact as to the availability of a ladder at the time of plaintiff’s accident. Therefore, the Court also affirmed the trial court’s denial of plaintiff’s motion on his § 240(1) claim as against the City.
 
Labor Law § 241(6) (TPW)
As to the Labor Law § 241(6) claim based on an alleged violation of Industrial Code (12 NYCRR) § 23-1.7(f) (Protection From General Hazards; Vertical Passage), the First Department affirmed the determination that the underlying facts did not support such a violation.
 
Indemnity Issues in Labor Law (BFM)
The First Department held the City's indemnification and contribution crossclaims against Commodore should have been dismissed as barred by the anti-subrogation rule since the City was a named additional insured under Commodore's commercial general liability insurance policy covering the work. In reviewing the insurer's reservation of rights as to whether it will ultimately indemnify the City, the Court noted that the anti-subrogation rule is implicated by the duty to defend, which is broader than the duty to indemnify.
 
 
Crawford v 14 E. 11th St., LLC
February 09, 2021
Appellate Division, First Department
 
Plaintiff was injured from a scaffold when either a cross brace or a walking plank allegedly broke and he fell. The trial court denied plaintiff’s summary judgment motion under Labor Law § 240(1) and denied defendant Everest Scaffolding's cross-motion for summary judgment dismissing the complaint and all crossclaims against it. 
 
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s finding of issues of fact as to how the accident occurred, including whether it was a piece of cross bracing or a walking plank that broke, and whether plaintiff’s climbing on the scaffold’s cross bracing instead of using the scaffold’s stair when moving between platform levels was its sole proximate cause.
 
Evert’s cross-motion for summary judgment was also correctly denied as untimely, and without considering of the merits, since it was filed after the applicable deadline and Everest failed to show good cause for the delay. The motion was not a true cross-motion as plaintiff did not move against Everett and did not raise issues “nearly identical” to those raised by plaintiff.
 
PRACTICE POINT:  A party cannot file a motion for summary judgment beyond the time period prescribed by the court, so you better know your case’s scheduling and briefing orders!
 
 
Bain v 50 W. Dev., LLC
February 11, 2021
Appellate Division, First Department
 
Plaintiff was allegedly injured when one of the wheels of a cart stacked with plywood sheets became lodged in a gap in the side of the ramp, and the cart tipped over and fell on top of him. 50 West Development owned the construction site and Hunter was the general contractor. Plaintiff was employed by non-party Resource New Jersey as a flooring carpenter. The trial court denied plaintiff’s and defendants’ motions for summary judgment under Labor Law §§ 240(1) and 241(6) based on an alleged violation of Industrial Code § 23-1.22(b)(3). 
 
Labor Law § 240(1) (MAS)
The First Department affirmed the trial court’s denial of both motions, finding triable issues of fact exist regarding the cumulative weight of the particle board sheets that fell on plaintiff from an A-frame cart after it toppled when its wheel was caught in the gap in the ramp structure as workers were wheeling it.
 
PRACTICE POINT:  On the issue of when an elevation differential is “physically significant” to fall within the purview of § 240(1), remember that a court must consider “the weight of the object and the amount of force” the object is “capable of generating, even over the course of a relatively short descent” (Runner). Early investigation on this one may have provided one party or other with the evidence needed to win its motion. David leads our Labor Law investigation team and is ready to go and available for training and webinars or for spearheading the investigation of your accident at a moment's notice, just give him a call!
 
Labor Law § 241(6) (TPW)
The First Department reversed and unanimously modified the trial court’s denial of plaintiff’s summary judgment motion predicated upon a violation of Industrial Code § 23-1.22(b)(3) (Structural Runways, Ramps and Platforms; Runways and Ramps). That Section requires ramp planks to be, inter alia, “laid close, butt jointed and securely nailed.” 
 
The ramp where plaintiff’s accident occurred consisted of two strips of planking which was loosely cobbled together. The large gap in between the boards caused a wheel on the cart to dip and the sheets of plywood to fall onto plaintiff which was a hazard contemplated by the Code section. Defendants were unable to raise a triable issue of fact as to whether the plywood ramp was substantially constructed and securely braced and supported.
 
 
Brielmeier v Legacy Yards Tenant, LLC
February 11, 2021
Appellate Division, First Department
 
Plaintiff, a journeyman ironworker was allegedly injured during the construction of a new building. The accident occurred as he began to descend from the six-foot high scaffold platform where he had been working, to the corrugated metal decking floor below. Plaintiff stepped from the scaffold onto a ladder that was affixed to it when he felt the scaffold “jump,” causing him to lose his balance and fall. The trial court denied defendants’ motion for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims. 
 
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s finding that plaintiff’s inconsistent statements about how he was injured do not compel dismissal of his Labor Law §§ 240(1) and 241(6) claims as they present issues of fact to be resolved by the jury according to their credibility determinations.
 
PRACTICE POINT: Raising credibility issues such as plaintiff’s inconsistent statements about how he was injured is sufficient to raise an issue of fact to defeat summary judgment but will not result in dismissal of a § 240(1) claim as the trier of fact determines credibility issues.
 
 
Escobar v MRS II Realty, LLC
February 16, 2021
Appellate Division, First Department
 
Plaintiff was allegedly injured when he fell from a ladder while removing snow from a sign and tiled awning over his employer’s grocery store. The trial court granted the owner and building manager’s motions for summary judgment dismissing the Labor Law § 240(1) claim. 
 
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed because plaintiff’s activity did not constitute “cleaning” under § 240(1) but rather routine maintenance.
 
PRACTICE POINT: Cleaning or routine maintenance, that is the question. The Court of Appeals in Soto v J. Crew Inc. has stated that “an activity cannot be characterized as ‘cleaning’ under the statute, if the task: (1) is routine, in the sense that it is the type of job that occurs on a daily, weekly, or other relatively-frequent and recurring basis as part of the ordinary maintenance and care of commercial premises; (2) requires neither specialized equipment nor expertise, nor the unusual deployment of labor; (3) generally involved significant elevation risks comparable to those inherent in typical domestic or household cleaning; and (4) in light of the core purpose of Labor Law § 240(1) to protect construction workers, is unrelated to any ongoing construction, renovation, painting, alteration or repair project.” The presence or absence of any one factor is not necessarily dispositive if, viewed in totality, the remaining considerations militate in favor of placing the task in one category or the other. Here, removing snow is clearly routine maintenance, especially for those of us who live in Western New York.
 
 
Favaloro v Port Auth. of N.Y. & N.J.
February 16, 2021
Appellate Division, First Department
 
Plaintiff was allegedly injured when, while walking on what was in effect a below-grade level, he stepped on a piece of unsecured plywood that was partially covering a concrete hole, causing the plywood to fly up and plaintiff’s right leg to fall into the hole up to his hip, which struck the concrete. The trial court (1) granted plaintiff’s summary judgment motion on his Labor Law §§ 240(1) and 241(6) claim based on Industrial Code § 23-1.30 against Port Authority, Turner, and Halmar, and denied separate cross-motions for summary judgment dismissing those claims, (2) granted defendants’ cross-motions to dismiss the § 241(6) claim based on Industrial Code § 23-1.7(b)(1)(i) and denied plaintiff’s motion for summary judgment on that claim, and (3) denied Turner’s, 2WTC, and Halmar’s cross-motion to dismiss the Labor Law § 200 and common-law negligence claims as against Halmar.
 
Labor Law § 240(1) (MAS)
The First Department held Turner, 2WTC, and Halmar’s argument that they are not proper Labor Law defendants is improperly raised for the first time on appeal and unanimously affirmed the trial court’s granting of summary judgment to plaintiff under § 240(1). The Court held that plaintiff’s accident arose from a gravity-related risk against which defendants failed to adequately protect him, despite that plaintiff’s fall occurred below grade and he did not fall all the way through the hole.
 
PRACTICE POINT:  In falling worker cases, plaintiffs need only show that the accident was caused by a gravity-related risk against which defendants failed to adequately guard against that proximately caused the injury, such as a concrete hole partially covered only by a piece of unsecured plywood that did not prevent him from falling into the hole.
 
Labor Law § 241(6) (TPW)
As to the Labor Law § 241(6) claim, the First Department affirmed the determination of the trial court. First, plaintiff was entitled to summary judgment on 12 NYCRR 23-1.30 (Illumination) as testimony reflected that the only lighting in the area was from floodlights some 80 feet above which failed to adequately illuminate plaintiff’s work area. Defendants were unable to raise an issue of fact that the lighting at the time of plaintiff’s accident was adequate.
 
As to 12 NYCRR 23-1.7(b) (Protection From General Hazards; Falling Hazards) defendants were entitled to summary judgment as the hole plaintiff stepped into was not a “hazardous opening” within the scope of that section. Plaintiff did not fall all the way through the opening because his hip struck the concrete footing. When “reading the regulation as a whole,” the First Department held that section pertains to openings deep enough for a person to fall all the way through. In the absence of measurements in the record to support a claim that plaintiff could have fallen all the way through the hole, the Industrial Code section was deemed inapplicable. 
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department held that triable issues of fact remain as to whether plaintiff’s accident was caused by a dangerous premises condition (the uncovered hole), Halmar’s means and methods (i.e., its alleged failure to secure the plywood cover over the hole), or some combination thereof, and as to Halmar’s liability under § 200 and common-law negligence.
 
 
Gjeka v Iron Horse Transp., Inc.
February 16, 2021
Appellate Division, First Department
 
Plaintiff was directing traffic around an unguarded trench in the street when a tractor trailer driven by Busch struck him, causing him to fall into the pit. The roadway was being excavated for the installation of new sewer lines for a building under construction owned by LLC. Plaintiff's employer, nonparty Express Plumbing, was retained to install the sewer line and responsible for digging the trench. The tractor was owned by Iron Horse, and the flatbed trailer attached to the tractor was owned by Re-Steel. The trial court entered judgment after a jury trial, awarding plaintiffs damages in the amount of $1,500,000 for past pain and suffering (6 years), $500,000 for past loss of consortium (6 years), and $600,000 in future medical expenses (26 years).
 
Labor Law § 240(1) (MAS)
The First Department affirmed the trial court’s denial of defendants’ motions to set aside the jury’s fault apportionment. Despite the Court determining that defendant was only vicariously liable under Labor Law §§ 240(1) and 241(6) for the absence of a barrier or safety railing around the trench, it was still necessary for the jury to determine the extent to which the unguarded trench and defendant’s operation of the tractor trailer contributed to the accident.
 
Re-Steel's and Iron Horse defendants’ arguments that a new trial is warranted because the cumulative effects of the trial court’s rulings deprive them of a fair trial were properly rejected. The jury charge and interrogatories were proper, and any claim that they confused the jury into apportioning fault is speculative. The court also properly precluded proof of plaintiff’s comparative fault, as there was no evidence that plaintiff’s acts contributed to his being struck by the tractor trailer. Regardless of the placement of the cones or how he was performing his duties as a “flag person,” the trial evidence demonstrates that plaintiff was standing well within the work area demarcated by the cones when Busch struck him.
 
However, the Court held the jury awards deviated materially from reasonable compensation and ordered a new trial on damages unless plaintiffs stipulate to a reduction of those awards to $500,000 for past pain and suffering and $300,000 for past loss of consortium. As plaintiff failed to serve a CPLR § 3101(d)(1)(i) expert disclosure notifying defendants that his treating physician would testify to his future medical needs and associated expenses, and defendants had no other notice of this testimony. Therefore, testimony on this issue should have been precluded and was insufficient to prove the award with “reasonable certainty” because he never prepared a report on plaintiff’s further medical need; he was asked about it for the first time on direct examination, and he admitted that he was testifying off the top of his head.
 
PRACTICE POINT: Although plaintiff’s treating physician does not need to be disclosed as an expert, the failure to disclose his treating physician’s opinion regarding his future medical needs and associated expenses cost plaintiff $600,000 in this case. If you want to prove future medical expenses, put your opponent on notice and establish your numbers with “reasonable certainty”. It would also probably help if the treating physician’s first time discussing those numbers is not while he is testifying on the stand, spewing numbers “off the top of his head” on direct examination.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed the trial court’s denial to set aside the apportionment of 5% fault to Busch and reinstate the initial verdict of not negligent. The verdict that Busch was negligent is supported by sufficient evidence and is not against the weight of the evidence. Plaintiff, his foreman, and LLC’s representative testified consistently that Busch was driving 25-35 mph through the work area when the rig struck plaintiff and knocked him into the unguarded trench.
 
Indemnity Issues in Labor Law (BFM)
The First Department noted that to the extent LLC could not have sought common-law indemnification due to the absence of a “grave injury” sustained by plaintiff, it could have sought contractual indemnification. The Court further held that LLC’s claim for common-law indemnification against Iron Horse defendants and Re–Steel was misplaced, as LLC is vicariously liable for Express Plumbing’s failure to guard the trench, not for acts or omissions related to the operation of the tractor trailer.
 
 
Singh v City of New York
February 16, 2021
Appellate Division, First Department
 
Plaintiff was allegedly injured when a portion of the sidewalk bridge on which he was standing while dismantling the scaffold collapsed. The trial court granted plaintiff’s summary judgment motion for liability on his Labor Law § 240(1) claim against defendant NYCHA. 
 
Labor Law § 240(1) (MAS)
Plaintiff testified that he was not wearing his safety harness because the lifeline, which he had used while working on the scaffold that he and his coworkers had dismantled, could not be used while working on the sidewalk bridge. The First Department unanimously affirmed summary judgment to plaintiff because defendants neither submitted evidence nor identified discovery that would lead to evidence that the lifeline was still available and that it was possible to wear it on the sidewalk bridge while engaged in work that plaintiff was performing. Defendants’ argument that plaintiff’s testimony was internally inconsistent is academic, as NYCHA is liable under § 240(1) for any version of the accident based on any of the purported inconsistencies.
 
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 that the safety devices were available, (3) that he or she was expected to use them, (4) chose for no good reason not to do so, and (5) would not have been injured had he or she not made that choice. Here, it did not matter whether the lifeline was available because plaintiff had a good reason for not using it.
 
 
S.V.L. v PBM, LLC
February 18, 2021
Appellate Division, First Department
 
This wrongful death action stems from decedent’s death after he fell four stories from defendants’ building in Manhattan while washing windows in the course of his employment with GEO.  After plaintiff’s two discovery motions were fully submitted against GEO and PBM, and while the parties were awaiting the court’s decision thereon, the parties moved and cross-moved for summary judgment. The trial court granted plaintiffs’ motion for leave to reargue an order, which granted defendants’ motion and cross-motion and first and second third-party defendant GEO’s cross-motion for summary judgment dismissing the Labor Law §§ 240(1), 200 and common-law negligence claims against them, and denied plaintiff’s motion for summary judgment against PBM and 345 PAS Owner and RFR Realty, and, upon reargument, adhered to the original determination, and denied the branch of plaintiffs’ motion for leave to renew.
 
Labor Law § 240(1) (MAS)
The First Department reversed the trial court and denied plaintiff’s motion because the record contained conflicting evidence as to whether decedent was exposed to an elevation-related risk attendant to his work as it was intended to be performed. GEO’s principal testified the exterior windows could and should have been cleaned while decedent was inside the premises, and the property manager testified the windows were tilt-in so their exterior did not have to be cleaned from the outside; but Ventura averred that he and decedent had previously cleared the exterior of the windows from outside, which GEO’s principal knew, and, at least tacitly, approved.
 
PRACTICE POINT: A commercial window washer’s gravity-related accident falls within the scope of § 240(1) if it the elevation-related hazard that is a proximate cause of the accident is attendant to his work as that work was intended or supposed to be performed. If neither party can meet this burden, then it follows logically that neither party is entitled to summary judgment. Always keep the distinction between a commercial window washer working on a commercial versus residential building because such work on residential building is routine maintenance does not qualify as “cleaning” for purposes of § 240(1).
 
Labor Law § 200 and Common-Law Negligence (ESB)
As for the Labor Law § 200 and common-law negligence claims, the First Department held that defendants cannot be liable because the accident arose out of the means and methods of decedent’s work and defendants did not actually exercise some supervisory control over his injury-producing work.
 
 
Mayorga v 75 Plaza LLC
February 25, 2021
Appellate Division, First Department
 
Plaintiff, a demolition worker was allegedly injured when a fire damper he was removing from a wall fell on him. The fire damper was about eight feet from the ground above a door frame and weighed 200 pounds. A rope, which had been attached to the damper and looped over the temporary frame in front of the damper, was held by a coworker to prevent the damper from falling as plaintiff broke the welds holding it in place. However, when he broke the last weld, his coworker was unable to prevent the damper from falling and it fell on plaintiff. All State had been retained to perform the demolition work and commenced a second third-party action against United, alleging it had subcontracted the demolition work to United. The trial court denied plaintiff’s summary judgment motion on his Labor Law §§ 240(1) and 241(6) claim predicated on Industrial Code § 23-3.3(b)(3) and (c) against defendant RXR Construction. 
 
Labor Law § 240(1) (MAS)
The First Department reversed the trial court and granted plaintiff’s motion because the rope proved inadequate to prevent the damper from falling. The eight-foot fall of the 200-pound damper that plaintiff was tasked with removing was not an ordinary construction site peril but an elevation-related hazard, within the ambit of § 240(1), which was required to be secured against unregulated descent to prevent it from falling on plaintiff. Moreover, regulating its descent to prevent it from falling would not have been contrary to the purpose of the work.
 
Defendants’ and All State’s sole proximate cause argument for failing to use the ladder, scissor lift, or scaffolds that were provided was held speculative and contradicted by the record because there is no evidence that plaintiff could and should have used one of those devices rather than have his coworker attempt to lower the damper with the rope.
 
PRACTICE POINT:  In falling object cases, remember plaintiffs are no longer required to show that the object fell while being hoisted or secured, only that it was required to be secured for purposes of the work to prevent it from falling and causing injury to plaintiff. Here, the statute was violated because the rope proved inadequate to prevent the damper from falling and injuring plaintiff.
 
Labor Law § 241(6) (TPW)
The First Department affirmed the trial court’s denial of plaintiff’s motion for summary judgment predicated on Industrial Code § 23-3.3(b)(3) and (c) (Demolition by Hand; Demolition of Walls and Partitions and Inspection). Plaintiff was not entitled to summary judgment as the hazard arose from the demolition work itself as opposed to any structural instability caused by the progress of the demolition.
 
 
Portillo v DRMBRE-85 Fee LLC
February 25, 2021
Appellate Division, First Department
 
Plaintiff was allegedly injured while removing overhead ceiling wires. He conducted an unsuccessful search to find an available ladder in the apartment, and then improvised by using a nearby 18-inch-high bucket in an upside-down position to stand atop it and reach overhead ceiling wires. When the bucket suddenly tipped, he fell and was injured. 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 as plaintiff established prima facie that defendants are liable for his injuries under § 240(1) and defendants failed to raise a triable issue of fact as to whether plaintiff was the sole proximate cause of his accident. Plaintiff recalled that his supervisor would either use an A-frame ladder or climb atop a 5-gallon bucket for on overhead task and there was no standing order not to use the bucket to complete the project, especially after witnessing his supervisor doing so.
 
PRACTICE POINT: A defendant must establish all four elements of the sole proximate cause to establish it has no liability under Labor Law § 240(1). Again, a defendant must prove plaintiff: (1) had adequate safety devices available; (2) knew that the safety devices were available, (3) that he or she was expected to use them, (4) chose for no good reason not to do so, and (5) would not have been injured had he or she not made that choice. The problem here was defendants’ inability to show that plaintiff was told not use the bucket to complete the project, especially after witnessing his supervisor previously working on an overturned bucket.
 
 
Nugra v Aramalla
February 3, 2021
Appellate Division, Second Department
 
Plaintiff was allegedly injured when he tripped over coiled coaxial wires while installing marble at a home under construction on Long Island. The trial court granted CM Richey Electrical Contractors summary judgment motion dismissing the common-law negligence claim and the crossclaims of Ben Krupinski General Contractor, Inc., and Ben Krupinski Builders & Associates, Inc., for common-law and contractual indemnification insofar as asserted against it.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department held that the Krupinski defendants were not aggrieved by the prior order dismissing the claims against CM Richey. A person is aggrieved when he or she asks for relief, but that relief is denied in whole or in part, or when someone asks from relief against him or her, which the person opposed, and the relief is granted in whole or in part. Accordingly, the Court dismissed the Krupinski’s appeal of the decision dismissing the Labor Law § 200 and common-law negligence claims against CM Richey.
 
Indemnity Issues in Labor Law (BFM)
The Second Department found that CM Richey was not entitled to summary judgment dismissing the Krupinski defendants’ crossclaim for contractual indemnity because it failed to show that there were no triable issues of fact as to whether plaintiff's accident was caused in whole or in part by the performance of CM Richey’s work, which was required to trigger the indemnity provision in the contract between the Krupinski defendants and CM Richey. The Court also determined that CM Richey was not entitled to dismissal of the Krupinski defendants’ crossclaims for common law indemnity as it failed to demonstrate that it was not negligent, and that it did not have the authority to direct, supervise, or control the work giving rise to the injury.
 
 
Ortega v 669 Meeker Ave., LLC
February 3, 2021
Appellate Division, Second Department
 
Plaintiff allegedly was injured when he fell from a ladder while working in a building owned by 669 Meeker. Plaintiff’s employer was nonparty JSB, a real estate management company that managed the building, as well as other buildings. Nonparty Sylvester was one of the members of 669 Meeker and the president and sole officer of JSB. Radek, who was Sylvester’s cousin, was the superintendent of the subject building. The trial court denied 669 Meeker’s motion for summary judgment dismissing the amended complaint insofar as asserted against it and denied plaintiffs’ motion for summary judgment on the Labor Law § 240(1) claim.
 
Labor Law § 240(1) (MAS)
The Second Department affirmed denial of both motions. Although 660 Meeker asserted that the claims were barred by the exclusivity provisions of the Workers’ Compensation Law, it failed to demonstrate that plaintiff was its special employee at the time of the accident because it did not submit sufficient evidence to establish that it controlled and directed the manner, details, and ultimate result of the injury-producing work.
 
Plaintiff was also not entitled to summary judgment because his submissions failed to eliminate triable issues of fact as to whether, at the time of his accident, plaintiff was engaged in a protected activity or routine maintenance while using plaster and compound to cover holes in an interior wall of the building.
 
PRACTICE POINT:  Although the issue of alter ego/special employer is usually a question of fact, the determination of special employment status may be made as a matter of law where the particular, undisputed, critical facts compel that conclusion. Many factors are considered in deciding whether a special employment relationship exists, and no single one is typically decisive, including who has the right to control the employee’s work, who is responsible for the payment of wages and the furnishing of equipment, who has the right to discharge the employee, and whether the work being performed was in furtherance of the special employer’s or the general employer’s business. The most significant factor is who controls and directs the manner, details, and ultimate result of the employee’s work.
 
 
Rodriguez v Metropolitan Transp. Auth.
February 24, 2021
Appellate Division, Second Department
 
Plaintiff was allegedly injured while working on a train station renovation project. At the time of the alleged incident, plaintiff and others were moving a compressor across a sidewalk when one of the compressor’s wheels “fell” into a tree well, causing the compressor to strike plaintiff. The trial court granted Metropolitan Transportation Authority’s and Metro North Commuter Railroad’s motion for summary judgment dismissing the complaint against them and denied plaintiff's cross-motion for leave to amend his bill of particulars.
 
Labor Law § 241(6) (TPW)
The Second Department affirmed the grant of defendants’ motion for summary judgment seeking dismissal of Labor Law § 241(6) claim. Plaintiff initially failed to allege any violation of the Industrial Code in his Bills of Particulars. When faced with defendants’ motion, plaintiff cross-moved to amend his Bill of Particulars to allege violations of Industrial Code provisions 12 NYCRR 23-1.22(c) (Structural Runways, Ramps And Platforms; Platforms) and 23-1.33(d) (Protection of Persons Passing by Construction, Demolition or Excavation Operations; Maintenance). The Court held the provisions proffered were inapplicable to the underlying facts and granted defendants’ motion to dismiss these claims and to deny plaintiff’s cross-motion.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed dismissal of the Labor Law § 200 and common-law negligence claims because defendants established, prima facie, both that they did not create nor had actual or constructive notice of the alleged condition which caused plaintiff’s injury, and that they had no authority to supervise or control the means and methods of plaintiff’s work.
 
 
Healy v Est Downtown, LLC
February 5, 2021
Appellate Division, Fourth Department
 
Plaintiff was employed as a maintenance and repair technician by the building’s property manager. The building’s maintenance staff, of which plaintiff was a member, was separate from its janitorial staff. Plaintiff’s regular duties included making the building’s rental properties ready for incoming tenants by repairing fixtures and painting. Additionally, he was tasked with responding to work orders generated by his employer in response to defendant's requests for repairs. On the day of the accident, plaintiff responded to a “pest control” work order filed by one of the building’s commercial tenants, complaining that birds were depositing excrement from a nest that was lodged in one of the building’s gutters located above the tenant’s entryway. Plaintiff was allegedly injured when, while attempting to remove the bird’s nest, he fell from an unsecured eight-foot ladder that moved when a bird suddenly flew out of the nest. The trial court denied defendant’s motion for summary judgment and granted plaintiff’s motion for partial summary judgment on the Labor Law 240(1) claim.
 
Labor Law § 240(1) (MAS)
The Fourth Department majority affirmed, finding plaintiff was engaged in a protected activity under § 240(1), i.e., cleaning, when he fell. Plaintiff had never before been given such a task during his time working on the premises and he was removing the nest, in part, to prevent further accumulation of bird excrement under the nest. His supervisor characterized the task of removing the nest as nonroutine cleaning. Additionally, the majority noted that removing the bird’s nest from the gutter, necessarily involved elevation-related risks that are not generally associated with typical household cleaning.
 
The dissent by Justices Peradotto and Lindley finds that plaintiff was not engaged in cleaning or any other protected activity under § 240(1) at the time of the accident. The dissent argues the clearing of gutters of extraneous material –whether leaves other debris or, in this case, a bird’s nest – to keep the storefronts thereunder clean and safe “is the type of job that occurs on a ... relatively-frequent and recurring basis as part of the ordinary maintenance and care of commercial premises.” Contrary to the majority’s assertion, the record demonstrates that the task fell directly within the scope of plaintiff’s ordinary work as a maintenance and repair technician to, as plaintiff testified, “take care of the daily grounds” and complete “any work orders that would come in” and was not thus outside the scope of those routine tasks as that of a subcontractor. Applying the requisite four factors, the dissent determines that plaintiff’s activity was not “cleaning” under § 240(1).
 
PRACTICE POINT: The dissent cites to Fourth and Second Department cases that say “cleaning” gutters of debris that is not part of construction, demolition, or repair work is routine maintenance. Therefore, we find the dissent’s argument more persuasive as it analyzed each of the four factors from Soto v J. Crew Inc. The dissent disagreed as to the first factor and concluded that clearing a gutter of extraneous material over the entrance to a first story retail storefront is the type of routine maintenance that occurs on a relatively frequent basis on a commercial portion of a mixed used property. The majority and dissent agreed on the second factor that the removal of the bird’s nest did not necessitate the use of specialized equipment or expertise, nor did such removal require the unusual deployment of labor, inasmuch as the task involved a single worker using a common ladder in an attempt to remove extraneous material from the gutter by hand. The dissent disagreed on the third factor and held that plaintiff’s activity involved an insignificant elevation risk comparable to those inherent in typical domestic or household cleaning. The dissent also disagreed as to the majority’s finding on the third factor that plaintiff’s task was “unrelated to any ongoing construction, renovation, painting, alteration or repair project, finding that patching a single, six-inch hole with a piece of sheet metal and silicone adhesive would not require “a significant physical change to the configuration or composition of the building or structure” and thus does not constitute an alteration.
 
 
Lemiszko v Mosovich 2014 Family Trust
February 5, 2021
Appellate Division, Fourth Department
 
Plaintiff commenced this action seeking damages for injuries he allegedly sustained when he fell from a ladder while on premises owned by Trust. In a prior determination, the Workers' Compensation Board (Board) declined to hold AAA liable for plaintiff’s injuries under Workers' Compensation Law § 56 because “there was no contract between AAA and [plaintiff's uninsured employer, defendant] Dean Nelipowitz”. The trial court denied AAA’s motion to dismiss plaintiff’s Labor Law claims and the Trust’s crossclaim for contractual indemnification.
 
Labor Law § 240(1) (MAS)
The Fourth Department unanimously affirmed the denial of defendant’s pre-answer motion to dismiss the Labor Law claims based upon collateral estoppel. Defendant did not meet its burden of establishing that a determination in plaintiff’s prior workers’ compensation proceeding precludes him from recovering under the Labor Law. The discrete factual finding that there was no contract between defendant and Nelipowitz does not preclude plaintiff from establishing that he is a protected worker under the Labor Law, i.e., that “he was both permitted or suffered to work on a building or structure and that he was hired by someone, be it owner, contractor or their agent.” The court held the prior determination also does not preclude the possibility that the Trust, as owner, contracted for the services of plaintiff’s employer, either directly or through defendant as an agent.
 
PRACTICE POINT: The main difference between the standards of review for a pre-answer motion to dismiss and a summary judgment motion is the court accepts all allegations of the complaint and construes the facts in the light most favorable to plaintiff on a pre-answer motion to dismiss. To obtain to summary judgment, there must be no genuine issues of material fact and the moving party is entitled judgment as a matter of law. Stay tuned to find out if defendant’s arguments will be sufficient for it to obtain summary judgment since they lost their pre-answer motion to dismiss.
 
Indemnity Issues in Labor Law (BFM)
The Fourth Department affirmed the trial court’s denial of defendant’s motion to dismiss the Trust’s crossclaim for contractual indemnification, which had been based on failure to state a claim and documentary evidence, holding that the crossclaim clearly stated that it was seeking contractual indemnification and that the incomplete contract the defendant submitted in support of its motion was insufficient to establish entitlement to dismissal of the crossclaim.
 
 
Steffen v DirecTv, Inc.
February 5, 2021
Appellate Division, Fourth Department
 
Plaintiff was allegedly injured while installing a satellite dish on the roof of a private residence to provide internet service from nonparty WildBlue. Plaintiff performed the installation as an employee of nonparty MasTec, a WildBlue subcontractor, but he drove a truck that had defendant, DirectTV’s logo on it, wore DirecTV-branded clothes, and believed that WildBlue's internet service was a product of defendant. 
 
After the parties engaged in several years of discovery, defendant and MasTec moved to quash a subpoena served by plaintiff on MasTec and for a protective order precluding any further depositions of defendant’s representatives. Plaintiffs’ cross-moved for an order directing defendant to comply with plaintiffs’ document requests and directing MasTec to comply with the subpoena, arguing additional discovery was needed because the inadequate disclosure by defendant and MasTec up to that point had concealed the existence of WildBlue as a potential party. The trial court denied the cross-motion and granted the motion seeking a protective order.
 
In appeal No. 1, plaintiffs appeal, as limited by the brief, from an order that granted defendant's motion for summary judgment dismissing the complaint and denied plaintiffs’ motion for summary judgment on the Labor Law §§ 240(1) and 241(6) claims. In appeal No. 2, plaintiffs appeal from the order that granted defendant's motion seeking a protective order. In appeal No. 3, plaintiffs appeal from an order that denied their motion seeking to hold nonparty MasTec in civil and criminal contempt based on its failure to comply with the pre-action disclosure order.
 
Labor Law § 240(1) (MAS)
The Fourth Department affirmed the dismissal of the Labor Law claim because defendant established it was not a proper Labor Law defendant as it was not an owner, contractor or agent for purposes of the Labor Law. Defendant further demonstrated it was not involved in the work which brought about the injury and that plaintiff was not working for defendant at the time of the accident. Rather, the evidence established that plaintiff’s employer was responsible for the injury producing work and plaintiffs failed to raise a triable issue of fact with respect to whether defendant had any involvement.
 
PRACTICE POINT:  Remember the four criteria of a labor law claim: appropriate plaintiff, appropriate defendant, appropriate project and elevation/gravity-related risk. Here, defendant establish the second criteria was lacking since it was not an owner, contractor or their agent and did not have the authority to supervise, direct, or control the injury-producing work.
 
 
O'Mara v Ranalli
February 11, 2021
Appellate Division, Fourth Department
 
Plaintiffs was allegedly injured after he fell from an unsecured ladder at a construction site while attempting to descend from the first floor to the basement. Plaintiff was one of several contractors who James P. Ranalli, III (defendant) hired to build a single-family residence. The trial court granted defendant’s summary judgment motion dismissing the complaint against him.
 
Labor Law § 240(1) (MAS)
The Fourth Department reversed and reinstated plaintiff’s complaint against defendant because defendant failed to meet his burden of establishing as a matter of law that he is entitled to the benefit of the statutory homeowners’ exemption from liability. The Court held that defendant’s own submissions, which included the depositions of plaintiff and a nonparty contractor, created issues of fact whether defendant directed or controlled the method and manner of the work being done on the house. Plaintiff testified that defendant supplied the ladders that were used by the contractors, and the nonparty contractor testified that defendant was on site giving direction nearly every day. Therefore, defendant was directly involved in how the workers accessed the building such that his conduct was deemed to be “far beyond ‘[a] homeowner’s typical involvement in a construction project.” 
 
PRACTICE POINT: If you are the property owner and you supervise, direct, or control the injury-producing work, then you are not entitled to the homeowner’s exemption.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Fourth Department also found triable issues of fact whether defendant had the authority to direct, supervise, or control plaintiff and his work, precluding summary judgment under § 200.

 
New York Industrial Code Regulations - (EDA)
12 NYCRR 23-1.21(e)(4)— Stepladders shall not be used as supports for scaffold planking.
Regulation § 1.21(e)(4), which pertains to stepladders, contains specific commands that would likely support a Labor Law § 241(6) cause of action.

Cruz v Seven Park Ave. Corp., 5 Misc 3d 1018(A) [Sup Ct 2004]

23–1.21(e)(4) sets forth certain requirements that stepladders must meet.  While no appellate division has ruled on this sub paragraph, it is highly likely it will be found to be sufficiently sufficient to support a § 241(6) claim.
 
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