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Volume XII, No. 4
Wednesday, March 1, 2023
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 Note from David R. Adams:
Do you have a situation? We love situations. Give us a call, send an email, drop by; we truly enjoy solving complex Labor Law and risk transfer issues.
March is here, and that means that the spring skiing season can’t be far away. Many of you are cursing me, I am sure; thinking of sun and beaches, but true skiers only see long days on the slopes and blue skies. To each, his or her own, I say.
Some interesting decisions this month. In the first reported case below, the First Department decides that a power buggy, being driven on a loading ramp, was a safety device when it hit debris, had the brakes fail, and the operator fell out of it. I am having a very hard time agreeing with the court that a power buggy, being used to remove debris, is a safety device designed to protect the worker from a danger presented by a significant elevation differential. I am having an equally hard time believing that the ramp, a permanent part of the building, is the type of elevation differential to which the statute was intended to apply. One question for me is, had the exact same accident occurred while the plaintiff was driving the buggy on flat ground, that is, he hit debris, had the brakes fail, and overturned, would the court have found that to be a § 240(1) case? Looking forward to hearing from any readers who have opinions on this one.
I will get off my soap box and move on to the monthly photos and video. In the first video the plaintiff’s company has been hired to replace the bulbs that have broken in the lights in the parking lot of an office building. The plaintiff is sent out to replace them and is provided with a ladder long enough to reach the light, and with a strap to secure the ladder to the light pole to prevent it from slipping or moving in any way. As the plaintiff climbs the ladder, the light pole suffers a failure and the ladder and pole both come down and the plaintiff is injured. § 240(1) case?
There are several issues here but let’s start with the essential elements of the §240(1) case: The plaintiff is a person so-employed and thus, a valid plaintiff. An office building is a commercial building and thus, the owner is a valid defendant. The plaintiff is injured due to an elevation differential, so that qualifies. The replacement of light bulbs, however, is not a covered activity as that is considered to be routine maintenance, and not repair.
Let’s assume, however, the plaintiff was also replacing the wiring, which had failed, and thus, was involved in a repair, which is a covered activity. Is it then § 240(1)?
In that situation my opinion would be that there is no violation of § 240(1). The ladder itself did not fail, it did not move or tilt ,but rather the pole it was attached to failed. The argument by the plaintiff will be that a lift should have been used, that the wrong safety device was selected, and that it failed to protect the plaintiff from elevation-related risk. My position is that, as the failure of the lamp post was not foreseeable, no further extraordinary protection were required and thus, not a violation of the statute. Again, I encourage our readers to chime in here and provide your opinion on this situation.
In our next picture this month, the plaintiff’s company has been hired by the same office building owner to replace bulbs and rewire the light in a different part of the parking lot. His set up is a bit different. When he falls is there a valid § 240(1) claim?
Using a ladder on in the bed of a pickup truck is not exactly what OSHA defines as safe practice, and the search for an expert to support your argument, that the safety device provided to the plaintiff was appropriate, is simply not going to happen. Summary judgment to the plaintiff on § 240(1).
In our second photo of the month, the company employing the plaintiff and his co-workers were hired by the ship owner and are attempting to somehow push the fallen and crushed containers back onto the deck of the ship. As they do so, the containers shift, causing the plaintiff to fall from the ladder. § 240(1) case?
Setting aside the potential application of maritime law for our analysis, we have a valid plaintiff, a valid defendant, and a fall from a height. My position here is that none of the enumerated activities are involved in the injury-producing work. The plaintiff is not engaged in construction, demolition, repair, alteration of any of the other activities. I am sure that the plaintiff’s bar sees it differently, let me know your opinion.
That is all we have for you this month. As always, please feel free to reach out to us with any questions Labor Law or Risk-Transfer related.
David
David R. Adams
Hurwitz Fine P.C.
The Liberty Building
424 Main Street, Suite 1300
Buffalo, New York 14202
Phone: 716.849.8900
Fax: 716.855.0874
Email: [email protected]
HF Website: www.hurwitzfine.com
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February 02, 2023
Appellate Division, First Department
Plaintiff was ejected from a power buggy he was operating on a sloped loading dock ramp when the power buggy allegedly hit debris and its brakes failed. The trial court granted plaintiff's motion for partial summary judgment on to liability under his Labor Law §§ 240(1) and 241(6) claims.
 Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s decision as plaintiff’s testimony established the incident was proximately caused by the combination of the slope of the loading dock ramp, the power buggy running over debris on the ramp, and the failure of the buggy’s brakes, which caused the buggy to lose control down the ramp and eject plaintiff.
The Court dismissed defendants’ argument that the motion was premature because they did not demonstrate how the testimony of plaintiff’s coworker would present facts that would “justify opposition to the motion”.
PRACTICE POINT: The Court’s decision was that the buggy itself (including its brakes) was the safety device that failed to provide plaintiff with adequate protection against the gravity-related risk of transporting debris and materials down the sloped ramp, which was a proximate cause of his injuries. This is the court’s opinion, not necessarily ours, and we profoundly hope that this expansion of the Labor Law is short-lived and applied only to a very small and discrete type of case pertaining only to power buggies.
Plaintiff allegedly was struck by a two-foot-wide and eight-foot-high piece of sheetrock, only a portion of which tipped over no more than three feet onto him. The trial court granted defendants’ motions for summary judgment dismissing the complaint and denied plaintiff's cross-motion for summary judgment on liability under Labor Law § 240(1) and for leave to amend his bill of particulars to allege violations of Industrial Code (12 NYCRR) §§ 23-1.7(e)(2) and 23-2.1(a)(1) to support his Labor Law § 241(6) claim, and as amended, for summary judgment under that claim.
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s dismissal of the § 240(1) claim because plaintiff’s incident involved only an ordinary construction hazard and not an extraordinary danger contemplated by the statute.
PRACTICE POINT: Since Runner, courts are, to a significant degree, more concerned with whether the size and weight of the falling object generates a sufficient force to cause injury. That is not the exclusive criteria, as demonstrated in this case. Concerningly, however, more and more courts are finding that, if the falling object caused injury, there must be a violation. That is not the law and not the intent of the statute, but it has become an easy yardstick for some courts. Here, the falling object had a relatively short descent before hitting plaintiff and thus, was considered an ordinary construction hazard.
 Labor Law § 241(6) (TPW)
The First Department also unanimously affirmed the trial court’s dismissal of the § 241(6) claim because plaintiff’s motion was not a true cross-motion as it rested on newly pleaded Industrial Code provisions and thus did not raise arguments “nearly identical” to those defendants raised in their motions. The Court also held that the trial court did not improvidently exercise its discretion in denying the branch of plaintiff’s motion seeking to amend his bill of particulars to allege additional Industrial Code violations. Plaintiff failed to amend within the time frame set by a prior order and offered no justification for failing to do so until several years later. Moreover, plaintiff sought amendment only in the face of defendants’ post-note of issue dispositive motions.
Plaintiff allegedly was injured when he stepped and fell on a piece of electrical conduit lying on the floor while cleaning debris at a construction site. NYCTA/MTA owned the premises. Plaintiff was employed as a laborer by the nonparty general contractor. Five Star was the prime electrical subcontractor on the project and it, in turn, subcontracted Eaton to perform certain electrical work. The trial court granted plaintiff's motion for summary judgment on the Labor Law § 241(6) claim and denied NYCTA/MTA’s motion for summary judgment dismissing the Labor Law §§ 241(6), 200 and common-law negligence claims and Eaton’s counterclaims for contribution and common-law indemnification, and on their crossclaim for contractual indemnification against Five Star and granted Eaton's motion for summary judgment dismissing NYCTA/MTA's second third-party complaint as against it.
Labor Law § 241(6) (TPW)
The First Department unanimously affirmed the trial court’s award of summary judgment to plaintiff and denial of NYCTA/MTA’s motion with respect to Industrial Code § 23-1.7(e)(2), which requires that floors of work areas be kept free of debris and scattered tools and materials, because the record established that NYCTA/MTA violated that provision and that this violation proximately caused plaintiff’s incident. However, the Court held that plaintiff abandoned that portion of his Labor Law § 241(6) claim based on other Industrial Code regulations, since he did not oppose NYCTA/MTA’s arguments for dismissing those claims either at the trial court or on appeal.
 Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed denial of the motion as to Labor Law § 200 and common-law negligence. It found that neither NYCTA/MTA nor Five Star met their burden of proof. NYCTA/MTA failed to prove that they lacked constructive notice of the condition that caused the accident. As to Five Star, the testimony of various witnesses as to whether it or another contractor owned the subject electrical conduit – which caused plaintiff's fall – and whether the conduit was open and obvious, presented factual and credibility issues that preclude summary judgment.
 Indemnity Issues in Labor Law (BFM)
The First Department held that because an issue of fact existed as to who owned the subject conduit, NYCTA/MTA's second third-party claims for contribution, common-law and contractual indemnification, and breach of contract as against Eaton, the other electrical contractor on site, were reinstated. In light of the issues of fact as to NYCTA/MTA's negligence, the Court affirmed the trial court’s denial of NYCTA/MTA's motion for summary judgment dismissing Eaton's counterclaims for contribution and common-law indemnification.
The Court further determined that the trial court correctly dismissed NYCTA/MTA's cross-claim for contractual indemnification against Five Star, holding that although NYCTA/MTA asserted the cross-claim in their answer to plaintiff's initial complaint, they never interposed an answer to the amended complaint, which superseded the original complaint. Given plaintiff's amended pleadings, NYCTA/MTA's original answer and the cross claims asserted therein had “no effect."
While plaintiff was working at a building owned by defendant 587-91 Third Owner, his foreman told him to help bring a heavy spray paint machine from the 10th floor down to the 9th floor. According to plaintiff, only one of the two site elevators was available, and after he and the foreman waited for the available elevator for around thirty minutes, the foreman told him to help move the machine down the stairway by holding the front of the machine. Plaintiff walked backwards down the stairs while holding the machine with both hands, and therefore could not see the steps. As he and the foreman moved the machine down the stairs, that admittedly were not defective, plaintiff missed a step, causing him to fall down thirteen steps and onto the landing below.
The trial court granted plaintiff's motion for summary judgment on his Labor Law § 240(1) claim and denied defendants’ motion for summary judgment dismissing the complaint, or, alternatively, for summary judgment on their contractual indemnification claim against OV Painting.
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s granting of summary judgment to plaintiff. Because plaintiff’s foreman directed him to work on an elevated work platform – the stairway – defendants were required to provide plaintiff with an adequate safety device for the task of carrying the paint machine down the stairs. No party disputed that defendants failed to do so, and the absence of a safety device was the direct cause of plaintiff. For the same reasons, defendants’ cross-motion was also properly denied.
PRACTICE POINT: Because the plaintiff was specifically directed to use the stairway, which, when used in such a manner, became an elevated working surface/platform, he should have been provided an adequate safety device to carry the machine down the steps. A plaintiff, as in this case, is entitled to summary judgment where the fall was the direct result of the absence of an adequate safety device.
Indemnity Issues in Labor Law (BFM)
The First Department affirmed the trial court’s denial of the defendants’ motion for summary judgment on their contractual indemnification claim against OV Painting as premature, finding issues of fact as to whether the defendants were negligent and whether they exercised supervision or control over the injury-producing work.
Plaintiff, a concrete laborer, was struck by a 10-foot section of cement hose that was allegedly dropped by a worker from an open second-floor level of the building under construction. A cement pour had just taken place on the second-floor level when plaintiff took a ladder down from the second floor and was hit by the object just as he was stepping away from the ladder at ground level. The trial court dismissed the amended complaint and all crossclaims as against FSJ and Vartel, and granted FSJ’s and Vartel’s cross-motion for summary judgment dismissing the amended complaint and all crossclaims as against them, denied plaintiff's cross-motion for partial summary judgment on his Labor Law §§ 240(1) and 241(6) claims, granted S&S’s motion for summary judgment dismissing those claims, granted plaintiff's cross-motion for summary judgment on his Labor Law § 200 claim as against S&S and denied S&S's motion for summary judgment dismissing that claim.
Labor Law § 240(1) (MAS)
The First Department reversed the trial court’s decision and held that plaintiff was entitled to partial summary judgment on his Labor Law § 240(1) claim and was not dependent on whether he had observed what hit him, or whether the object in question “dropped or fell in some other manner.” Plaintiff was not in a “drop zone” when injured, and FSJ’s project manager and S&S’s owner testified the object should not have been dropped. Defendants’ evidence in opposition failed to raise a triable issue.
PRACTICE POINT: The cement hose was an object that required securing once they were done pouring the floor and, since it was not properly secured and fell on plaintiff, causing an injury, he is entitled to summary judgment.
Labor Law § 241(6) (TPW)
The First Department modified the trial court’s order by vacating the judgment of dismissal as to the § 241(6) cause of action and reinstated the claim. It held, however, that the § 241(6) claim was academic considering its grant of summary judgment on the § 240(1) claim.
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department reversed the trial court’s decision and also reinstated the Labor Law § 200 claim. It held that while plaintiff did not establish entitlement to summary judgment on that claim as against S&S (as Plaintiff’s motion was founded on hearsay evidence), dismissal of the claim was unwarranted where there was admissible evidence that supported a reasonable inference that S&S employees were responsible for the cement hose equipment.
Plaintiff, an employee of nonparty, DF Auto, was responsible for purchasing and inspecting vehicles, purchasing car parts, and inspecting properties owned by DF Auto's proprietor, Dominic Ferrovecchio. Mr. Ferrovecchio is also the proprietor of 935 Bronx and Old Iron. M&M entered into a lease agreement with 935 Bronx to lease warehouse space to operate an auto glass installation business. M&M was ultimately evicted from the subject premises. Plaintiff, at the behest of Mr. Ferrovecchio, was directed to oversee the eviction to ensure that M&M removed all its auto glass from the premises and that it left the room clean. Plaintiff alleged Mr. Freeman was present on the day of the accident with some workers as he purchased the auto glass from M&M and was removing it from the premises. Plaintiff also alleged that during his inspection of the premises, he encountered a 15-foot pipe attached to a box in the ceiling that was hanging down to the ground, which he identified as a hazard. He asserted the pipe was hanging from the ceiling as a result of M&M's removal of an electric truck lift. Plaintiff then directed Mr. Freeman's employees to use their forklift to lift him 15 feet in the air to remove the pipe. His incident occurred as he was standing on the prongs of the forklift and began disconnecting the pipe, when he felt an electrical shock that caused him to fall.
The trial court granted the motions of M&M, 935 Bronx, and Old Iron for summary judgment dismissing the Labor Law §§ 240(1), 241(6), 200 and common-law negligence claims, and denied plaintiff’s cross-motion for partial summary judgment on liability under Labor Law § 241(6).
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed dismissal of plaintiff’s claims because plaintiff was not a covered person under Labor Law §§ 240(1) or 241(6). The record demonstrated that plaintiff’s employment did not involve him performing construction, alteration, demolition or similar labor, and the company he worked for did not regularly undertake enumerated duties under the Labor Law.
PRACTICE POINT: Regular subscribers know we analyze every Labor Law case using the same four criteria: (1) appropriate plaintiff; (2) appropriate defendant; (3) appropriate activity; and (4) elevation-related/gravity-related risk. Here, the injured worker could not maintain his cause of action because he was not engaged in a covered/appropriate activity.
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed dismissal of the Labor Law § 200 and common-law negligence claims. Interestingly, it noted the claims should not have been dismissed on the ground that he was not engaged in an enumerated activity, but the claims, nevertheless, fail as a matter of law. There was no evidence that any of the defendants knew or should have known that the ceiling component to a truck lift, removed by Jose Equipment Sales and Service, apparently had a live wire within it. The principal of the premises owner and property manager was out of state during the move. M&M Auto's manager testified that when he left the premises, the component was completely covered and there were no employees of M&M Auto at the site on the Monday after the lift was removed. Finally, there was no evidence that any of the defendants exercised supervision and control over the activity causing the injury.
Plaintiff was injured when unsecured outrigger scaffold’s planks allegedly collapsed as he stepped on it with his boss, causing them to fall 16 feet to the ground. The trial court denied plaintiff's motion for summary judgment on his Labor Law §§ 240(1) and 241(6) claims against defendants and granted 3475 Third Avenue’s motion for summary judgment dismissing the complaint.
The First Department reversed the trial court and granted plaintiff’s motion for summary judgment as his deposition testimony established the statute was violated and that said violation was a proximate of his injuries when he stepped on the unsecured outrigger scaffold’s planks. Since the statutory violation of a defective scaffold was a proximate cause of the incident, plaintiff cannot be the sole proximate cause of his incident and defendants cannot avail themselves of the recalcitrant worker defense.
PRACTICE POINT: If a statutory violation is a proximate cause of an injured worker’s injury, then the injured worker cannot be solely to blame for it.
Plaintiff allegedly fell from an unsecured and wet A-frame ladder as he was trying to close a valve from which a water leak was emanating. After his foot slipped, the plaintiff claimed that the ladder moved and he attempted to brace himself by holding onto the plug with his wrench, whereupon he heard a "pop" in his right shoulder and could no longer hold himself up, causing him to fall on his back onto debris on the floor. The trial court granted plaintiff's motion for summary judgment on his Labor Law §§ 240(1), 200 and common-law negligence claims against Five Star.
The First Department unanimously affirmed the trial court’s decision, as plaintiff’s testimony established that his work exposed him to an elevation-related risk against which defendant failed to provide him with proper protection. In opposition, defendant submitted forms completed by plaintiff after the accident, contending that his descriptions of how he injured his shoulder were inconsistent with his testimony, thereby raising issues of fact as to credibility. However, the Court held that such evidence did not controvert plaintiff’s testimony that he injured his shoulder when he slipped on the ladder and then used a wrench to try and prevent himself from falling.
PRACTICE POINT: When an unsecured ladder moves and causes a worker to fall and sustain injuries, the Court, most likely, will find a violation of the statute.
The First Department affirmed the trial court’s decision. In this hazardous condition case, the uncontested evidence demonstrated that defendant's workers broke the pipe that caused the leak. Accordingly, the defendant created the dangerous condition that led to the accident.
Plaintiff was injured while working on a project to replace a section of an interstate natural gas transmission pipeline underneath the Hudson River. Algonquin was the owner of the pipeline. Henkels was the general contractor on the project, who hired plaintiff's employer, nonparty Southeast, as a subcontractor. Plaintiff testified that he was unloading pipes, each weighing 1,000 pounds, from a flatbed trailer. He secured one of the pipes with a "choker" strap. Thereafter, as a coworker lifted the pipe using a CAT excavator, the pipe dropped, striking plaintiff's leg. The trial court (1) granted the motion of Algonquin and Henkels for summary judgment dismissing the Labor Law § 240(1) claim against them; (2) denied plaintiff's cross-motion for summary judgment on the Labor Law § 240(1) claim; and (3) denied plaintiff's separate cross-motion for leave to amend the bill of particulars to allege violations of certain additional sections of the Industrial Code with regard to his Labor Law § 241(6) claim.
The Second Department reversed the trial court and denied the motions of Algonquin and Henkels because triable issues of fact exist as to whether plaintiff was the sole proximate cause of his injuries, and whether the pipe fell because of the absence or inadequacy of a safety device. The Court affirmed the trial court’s denial of plaintiff’s cross-motion since his submissions similarly failed to eliminate all triable issues of fact.
PRACTICE POINT: With respect to falling objects, an injured worker must show that, at the time the object fell, it was being hoisted or secured, or that the falling object required securing for purposes of the undertaking. An injured worker must also show that the object fell because of the absence of or inadequacy of a safety device of the kind enumerated in the statute. Here, neither the defense nor plaintiff could meet their burden of proof; thus, neither was entitled to summary judgment against the other.
The Second Department reversed the trial court’s decision and granted plaintiff leave to amend the bill of particulars to allege additional Industrial Code violations. Without addressing the specific amendments, the Court held that plaintiff made the requisite showing of merit, the proposed amendment did not prejudice the defendants, and it did not involve new factual allegations or raise new theories of liability.
Plaintiff was injured when the staircase he was descending allegedly collapsed under him as he was working on a construction project on property owned by defendant. The incident occurred shortly after another worker on the property removed a wooden block that had been screwed into the floor at the base of the staircase to secure it. At the time of the incident, screws that should have been in place to secure the top of the staircase were absent. The trial court denied the defendants’ motion for summary judgment.
The Fourth Department reversed the trial court’s decision, granted the motion, and dismissed the complaint. In this hazardous condition case, it found that defendants met their initial burden and established they did not have actual notice of any dangerous condition of the staircase. Defendant, Michael Fornino, was unaware, prior to the incident, of any missing screws, he had used the staircase on the night before without incident, and he testified he would have noticed a bounce in the staircase if the staircase had not been secure, but neither he nor anyone else noticed such a bounce. Similarly, the Court held that defendants established they did not create the dangerous condition that caused plaintiff's accident. As for constructive notice, defendants established that the condition did not exist for a sufficient length of time before the accident to permit Fornino to discover and remedy it.
Starpoint School District was renovating the middle school cafeteria and the high school weight room as well as various other repairs. Starpoint contracted with Concept Construction as the general contractor for the project. Concept Construction entered a subcontractor agreement with Epic to perform demolition and abatement work. Epic arranged to rent a scissor lift to use in their demolition and abatement work at the project. The scissor lift was rented from Admar Supply, a construction rental company. Admar Supply hired Hausrath Landscape, plaintiff’s employer, to deliver the equipment.
Plaintiff was a truck driver whose job duties included delivering construction equipment rentals for Admar. Plaintiff was tasked to deliver the scissor lift rented by Epic to the Starpoint site. Upon arrival at the Starpoint school campus, plaintiff was directed by an Epic employee to a specific location in the parking lot to unload the scissor lift. It was raining at the time of the delivery. Plaintiff tilted the flatbed trailer, un-chained the scissor lift and began to drive the scissor lift down the tilted trailer bed, when the scissor lift slipped and fell off the side of the trailer, causing plaintiff to fall. The trial court granted plaintiff’s motion for partial summary judgment under Labor Law § 240(1).
Labor Law § 240(1) (MAS)
The Fourth Department, in one sentence, unanimously affirmed the trial court’s decision, “for reasons stated in the decision” of the trial court. . The lower court held, ““Delivery of equipment is a covered activity if the equipment is being delivered to an active construction site or is being readied for immediate use.” Shaw v Scepter, Inc. 187 AD3d 1662 (4th Dept 2020). The evidence presented in this case is the same as in the Shaw case in that the falling lift caused Plaintiff to fall and sustain injury. Therefore, the harm to Plaintiff flowed directly from the application of the force of gravity and is afforded the protections of Labor Law §240(1).”
PRACTICE POINT: Delivery of equipment is a covered activity if the equipment is being delivered to an active construction site or is being “readied for immediate use.” However, delivery of equipment is not a covered activity if it is being delivered to an inactive construction site or is merely being stockpiled for future use. This is a fact-specific decision that turned on whether the equipment was being delivered to an ongoing construction site or not. Since the court found construction was ongoing, the delivery of equipment was deemed a covered activity.
 New York Industrial Code Regulations (EDA)
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Regulation § 23–1.24(c), Protection of persons using roofing machines.
Where persons are using roofing machines on any roof which does not have a parapet at least three feet in height installed around the perimeter of such roof, protection from falling shall be provided for such persons as follows:
(2) If such work does not extend to any roof edge, portable stanchions located five feet in from the roof edge and connected by ropes or chains shall be provided. Such stanchions shall be spaced so that the connecting ropes or chains shall not be less than 36 nor more than 48 inches above the roof surfaces.
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Regulation § 23–1.24(c)(2), specifying the use of portable stanchions near the edge of the roof, is likely sufficiently specific to support a Labor Law § 241(6) claim.
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Regulation § 23–1.24(c) held inapplicable where a roofing machine was not in use.
Miranda v 3920 Realty Assoc., LLC [N.Y. Sup Ct, Bronx County 2016]
(the work being done was the demolition of parapet walls and the transportation of the demolished wall not the use of a roofing machine)
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Labor Law Pointers
Editor
David R. Adams
Associate Editor
Eric S. Bernhardt
Associate Editor
Brian F. Mark
Associate Editor
Timothy P. Welch
Associate Editor
Marc A. Schulz
Associate Editor
Eric D. Andrew
Labor Law Team
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