Back to Top

Labor Law Pointers - Volume X, No. 5

 
 

Labor Law Pointers

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

Volume X, No. 5
Wednesday, April 7, 2021

 

From the Editor:

Do you have a situation?  We love situations.  Give us a call, send an email, drop by; we truly enjoy solving complex or simple Labor Law and risk transfer issues. 
 
Happy spring to everyone. We are at that wonderful time here in Buffalo—on Sunday, I skied in the morning and played golf in shorts in the afternoon.  The skiing was great—it had been in the 20s overnight, so the snow was very firm, and the golf was a bit soggy, but very fun.  I love Buffalo.
 
We continue this month with our series of articles and seminars focused on New York Labor Law and Risk Transfer.  This month, we feature an article authored by Brian Mark who heads up our NYC Metro office and is a member of our Labor Law Team.  Brian addresses the Risk Transfer opportunities available under a Common Law Indemnification claim.  As you are all aware, in a Labor Law case, looking for company when it comes time to settle the claim often is a necessary talent for anyone handling these cases.  Brian addresses this important tool in his article, and we will present a webinar on April 22, 2021 at noon for 30 to 45 minutes on the subject.


 
Click on the link to the article to read it and on the link to the webinar to register; hope to see you there.  Our webinars have been well-attended, and comments have been very favorable.
 
Getting to the photos this month, here we have a demolition job where the plaintiff, in the striped shirt, was working for the demolition contractor removing the floor in the office building, when the floor he was bashing with a sledgehammer suddenly and “unexpectedly” let go, causing him to fall.  He did not fall all the way to the floor below as he was stopped by the re-wire but he sustained injury to his legs.  § 240(1) case?


 
The plaintiff is a person so employed, and thus an appropriate plaintiff.  The owner of the commercial building is an appropriate defendant.  The project is demolition, and thus a covered project.  The plaintiff was injured, and the harm flowed directly from the application of the force of gravity.  The argument on the defense will be that the plaintiff was intending to demolish the floor and thus the injury was a result of the intended action of the plaintiff.  This will not work here, as there was no safety device to protect the plaintiff from the foreseeable outcome of demolishing a floor you are standing on, and the photo above would be Exhibit “A”.
 
In photo 2, we have a commercial window washer and his partner washing windows in a hotel when plaintiff #1, the guy standing on the balcony railing, loses his balance and falls, pulling plaintiff #2, the guy tied to plaintiff #1, out the door, and he also falls to the ground and is injured.  Plaintiff #2 is plaintiff #1’s supervisor, who had instructed him to always be tied off to something appropriate when working at height, but who could not find anything that day, so he simply tied it to his own belt.  § 240(1) case against the owner for one or both of them?
 
 
Well, the plaintiffs both have a prima facie case, as commercial window washing has been found – many times – to be a protected activity, they are so employed, the owner is an appropriate defendant, and the injuries are caused by the application of the force of gravity.  The defendant may well attempt a sole proximate cause defense, which will clearly fail for plaintiff #1 as his safety method was not only tacitly approved by his supervisor, but was in fact set up by him.  Plaintiff #2 has a harder time of it as he had provided the instruction to always be tied off to something appropriate, but failed to do so.  This would come down to whether there was an appropriate safety device available to the plaintiff.  In other words, was there a place to tie off other than plaintiff #2.  Plaintiff #2 should have his case dismissed for pure stupidity; however, we have seen how that goes over the years.
 
In the next photo, we have glaziers replacing a window in a condo for the owner, who is out of town, but left a key for them.  When the glazier on the outside is blown off the ledge by a gust of wind and his partner can’t hold onto him, he is severely injured in the fall.  § 240(1) case?
 
 
 
The plaintiff is a person so employed, the project is either construction or alteration, the injury is caused by the application of gravity and the plaintiff is injured.  The safety device, a rope tied around his waist and held by his partner, was not as effective as they had hoped, and the plaintiff was injured.  That said the defendant condo owner is entitled to the single-family homeowner exemption, and as he neither supervised, directed, nor controlled the means and methods of the injury producing work, he is not an appropriate defendant and the case must be dismissed.
 
In this photo, we have electricians trying to get to the microwave receiver tower, where they were hired to repair a broken part, but they have unfortunately forgotten their ladder in the other truck.  Fortunately for them, or so they thought, they are out-of-work acrobats from the disbanded Ringling Brothers Circus, and finding milk crates in the area, they decided to relive their glorious past and create a tower to climb and do their job.  They had been told, many times, that their circus days were over and to always use approved equipment only, as this was not their first attempt at creative electricianing.  After the fall and injury, they were outraged that the fact they were wearing climbing harnesses did not prevent them from being fired, so she sued the owner of the property they where they were working.  §240(1)?


 
Recall that, for the sole proximate cause defense to § 240(1) to work, the defendant must prove that there was 1) an appropriate safety device, which was 2) available to the plaintiff, which the plaintiff 3) failed to use or misused, which the plaintiff had been 4) instructed to use or knew he was expected to use, but which the plaintiff did not use, 5) for no good reason.  Here the safety devices were not available to the plaintiff so the argument would need to be that the plaintiff should have brought it.  A fly in the ointment for the defense may well be that it was not the sole proximate cause of the injured plaintiff, as her co-worker was also part and parcel to the failure to bring the ladder. 
 
In our final photo, the plaintiff, a concrete worker, was removing forms from the recently poured floor of a new commercial building, without waiting for the lift that would have hoisted him into position, when a re-bar broke out of the concrete, and the plaintiff fell and was injured.  His co-workers were attempting to hold him and to hurry and get it done before the boss came back, as he had told them many times not to work over the edge without the appropriate safety equipment, and he had, just minutes before, told them that the lift would be there in 5 minutes, and not to do it without it.  § 240(1)?
 

 
The issue here is whether the plaintiff is a recalcitrant worker.  Here, the plaintiff was specifically instructed not to work in the dangerous manner he did and, importantly, was provided with the appropriate safety device to use, a wait of 5 minutes to have the appropriate safety device is not unreasonable, so I think that, for once, reason and logic shall prevail and the plaintiff’s § 240(1) claim will be dismissed.
 
Have a great month. Remember that we are always available to help with any issues Labor Law or Risk Transfer related, so please reach out to us. 

David

 
David R. Adams
Hurwitz & Fine, P.C.
424 Main Street
Suite 1300 Liberty Building
Buffalo, New York 14202
Phone:  716.849.8900
Direct:  716.849.8916
Fax:  716.855.0874
Cell:  716.553.6901
Email:  [email protected]
H&F Website:  www.hurwitzfine.com



Don’t forget to subscribe to our other publications:

Coverage Pointers: This twice-monthly electronic newsletter summarizes important insurance law decisions from appellate courts in New York State with the occasional snapshot across borders. Coverage Pointers, the electronic newsletter that started it all, continues to offer guaranteed publication every other Friday, and a read-at-a-glance summary of important decisions as they happen. Contact Dan Kohane at [email protected]  to subscribe.

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 subscribe.

Medical & Nursing Home Liability Pointers:  Medical & Nursing Home Liability Pointers provides the latest news, developments, and analysis of recent court decisions impacting the medical and long-term care communities. Contact Chris Potenza at [email protected] to subscribe.

Premises Pointers This monthly electronic newsletter covers current cases, trends and developments involving premises liability and general litigation. 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. 

 

Rubio v New York Proton Mgt., LLC
March 4, 2021
Appellate Division, First Department


Plaintiff walked across a plywood sheet, covering a three-foot deep trench at the construction site where he was working, and was injured when the plywood gave way when he walked across it, causing him to fall into the trench below. The trial court granted plaintiffs’ motion for partial summary judgment on the Labor Law § 240(1) claim.
 
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed, finding the unsecured plywood sheet through which plaintiff fell was an inadequate safety device. Plaintiff was not required to set forth the type of safety device that should have been provided or submit expert proof to establish his prima facie claim, where it was undisputed that the supplied safety device failed, in violation of § 240(1). Here, the gravity-related risk was the three-foot trench, and the unsecured plywood sheet placed over it was inadequate, because it gave way, and failed to protect plaintiff from injury.
 
Notably, defendants admitted the plywood sheet was not the heavy-duty one-inch kind of covering that should have been used. Nor is it relevant that plaintiff’s account of his accident was not corroborated by eyewitness testimony, because defendants failed to raise a triable issue refuting plaintiff’s prima facie case or challenging his credibility.
 
PRACTICE POINT: Defendants’ claim that a harness was readily available was insufficient to establish that plaintiff was the sole proximate cause of his injury, as there is no evidence that he was instructed or expected to use a harness while working on – what was supposed to be – a properly-planked and secure floor. Remember the four essential elements of the sole proximate cause defense under Labor Law § 240(1): (1) plaintiff had adequate safety devices available; (2) plaintiff knew both that the safety devices were available and that he or she was expected to use them; (3) plaintiff chose, for no good reason, not to do so; and (4) would not have been injured had he or she not made that choice. Without all four elements, this defense will not succeed.
 
 

Treacy v Inspired Event Productions, LLC
March 04, 2021
Appellate Division, First Department


Plaintiff, a Teamsters’ Union laborer employed by nonparty Budd, was unloading a truck with his coworkers and foreman when a crate, which was on top of one of the stacks being moved, fell on him. The crates contained materials to erect booths and other set pieces for Microsoft’s Imagine Cup 2011. Plaintiff was not permitted beyond the loading dock due to Union and contractual rules. He and his coworkers handed off the materials to stagehands who would take them from the loading dock to the Marriot Marquis ballroom for further use. While plaintiff’s delivery and unloading were a necessary step in the process, he was not hired to perform any of the alleged construction. The trial court granted the summary judgment motions of Microsoft, Marriot, Inspired Event, Ports America, Inc., Port Newark Container Terminal, and Works in Progress, to the extent of dismissing plaintiff’s Labor Law §§ 240(1) and 241(6) claims and also denied plaintiff’s cross-motion for partial summary judgment on those claims.
 
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s decision because plaintiff was not hired to perform any construction work and the accident occurred on a permanent loading dock servicing the hotel, an area where none of the construction was being performed, and plaintiff would not be participating in that construction. Instead, his duties were limited to unloading the material on the dock.
 
PRACTICE POINT:  Our Labor Law team analyzes each case with the same four questions: (1) Is plaintiff an appropriate plaintiff? (2) Is defendant an appropriate defendant? (3) Is the project one which is covered under the enumerated activities for which plaintiff is afforded the protections of the Labor Law? (4) Was the specific mechanism of injury one which is derived from a lack of an adequate safety device? Here, the court held plaintiff is not a covered worker under the Labor Law. This case is also a great example of the advantages of having designated work areas.
 
 

Martinez v ST-DIL LLC
March 16, 2021
Appellate Division, First Department

 
Plaintiff placed an A-frame ladder on top of an unsecured six-foot scaffold to do his work. The ladder had to be used in a closed position, as there was not enough space for it to be opened on the scaffold’s platform. When the scaffold moved beneath plaintiff, the ladder toppled over, causing him to fall to the ground. The trial court denied plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim and EM Windsor’s cross-motion for summary judgment dismissing the §§ 240(1) and 241(6) claims.
 
Labor Law § 240(1) (MAS)
The First Department held plaintiff prima facie established defendants’ violation of § 240(1), as it is undisputed the only safety devices supplied to him – an unsecured scaffold with a maximum height of six feet and an A-frame ladder – failed to afford him adequate protection to perform his sheetrock installation work while at an elevation, proximately causing his injuries. Defendants’ contention that plaintiff’s actions were the sole proximate cause of the accident is unavailing, since he was not provided a proper safety device to prevent his fall, and that failure is a cause of his injuries.
 
PRACTICE POINT: Even if plaintiff was instructed not to use a ladder on top of the scaffold to perform his work, defendants in this case still could not satisfy the third essential element of the sole proximate cause defense under Labor Law § 240(1): that (3) plaintiff chose, for no good reason, not to use the adequate and appropriate safety devices (the ladder and scaffold). If any one of the four essential elements is missing, this defense will not succeed. It also did not help defendants to argue there is no requirement under § 240(1) that plaintiff know exactly the cause of his accident, or what caused the scaffold or ladder to move, because it was undisputed that the scaffold was not high enough to allow plaintiff to perform his work, and the ladder had to be used in the closed position as there was not enough space for it to be opened on the scaffold’s platform. Thus, he had a reason (albeit not a good one) to place the ladder on top of scaffolding to perform his work.
 
Labor Law § 241(6) (TPW)
The First Department affirmed the dismissal of Industrial Code § 23-1.21(e)(2) as inapplicable under the given facts given the section pertains to a “stepladder . . . opened to its full position.”  However, the claims predicated on violations of Industrial Code §§ 23-1.21(b)(4)(ii) and (iv) survived given the sufficient testimony in the record to support such violations, including that the ladder was unsecured and lacked rubber footing and no one was holding it in place at the time of plaintiff’s fall.
 
 

Palermo v 7 W. 21 LLC
March 23, 2021
Appellate Division, First Department

 
Plaintiff's accident occurred while he was carrying a wood form used to mold concrete, measuring three feet by three feet wide and eight feet by twelve feet long and weighing 175 to 200 pounds, with a coworker. Plaintiff stopped and rested his side of the wood form on top of vertical piping protruding about three to four feet out of the ground without incident. While plaintiff was not looking, and without warning, the coworker picked up his end of the wood form, which caused the wood form to fall off the piping and striking plaintiff’s left foot. The trial court denied plaintiff's summary judgment motion for partial liability on his Labor Law § 240(1) claim.
 
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s determination that although plaintiff’s work was a construction-related activity covered under the statute, factual issues exist as to whether plaintiff was engaged in an elevation-related risk activity requiring that the wood form be secured. Assuming that securing the wood form was required, the Court also found a factual issue as to whether there was a safety device of the kind contemplated by Labor Law § 240(1) claim that could have prevented his accident.
 
PRACTICE POINT: The fact that plaintiff and the concrete form were on the same level did not bar application of Labor Law § 240(1) (see Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y.3d 1 [2011]). Contrary to plaintiff’s argument, however, there was a triable issue of fact as to whether the wood form needed to be secured for purposes of the work being performed. Therefore, there was a question of fact as to whether any safety device was required under the statute. We do not know whether defendants would have been successful in cross-moving for summary judgment, but we are nonetheless left with a question of fact as to whether the specific mechanism of injury was derived from a lack of an adequate safety device.
 
 

Goya v Longwood Hous. Dev. Fund Co., Inc.
March 25, 2021
Appellate Division, First Department

 
Plaintiff was injured by the malfunction of the fire escape ladder, which was a part of the permanent structure. The trial court denied AAD’s motion for renewal of its summary judgment motion seeking dismissal of the Labor Law §§ 240(1) and 241(6) claim predicated on Industrial Code § 23-1.7(d), denied Melcara’s motion to dismiss all claims and cross-claims against it, granted Longwood summary judgment on its crossclaim against Melcara for contractual indemnification, its crossclaims against AAD and its third-party claims against Cross Contracting for contractual indemnity and breach of contract for failure to procure insurance, and denied Longwood summary judgment on its third-party claims against AIM and C&W for contractual indemnity and breach of contract. The trial court also denied C&W’s motion to dismiss Longwood’s and Triboro’s contractual indemnity and breach of contract and AAD’s claims for contractual and common-law indemnity, and sub silentio denied the motion insofar as it sought dismissal of all other common-law indemnity and contribution claims against it, denied AIM’s motion to dismiss Longwood’s third-party complaint and Triboro’s crossclaims, denied Cross’s motion dismissing C&W’s claims against it for third-party negligence, common-law indemnity and contribution, Longwood’s claims against it for common-law and contractual indemnity, contribution, and breach of contract, and AAD’s, Triboro’s, and AIM’s crossclaims for common-law indemnity and contribution, and granted Triboro’s motion to dismiss Cross’s crossclaim against it for contribution. The trial court also dismissed Cross’s crossclaim for contribution against Triboro.
 
Labor Law § 240(1) (MAS)
The First Department affirmed denial of AAD’s motion under Labor Law § 240(1) because plaintiff’s use of the permanent fire escape ladder to reach the top of the sidewalk shed presented a foreseeable elevation-related hazard – just as if plaintiff had been using an extension ladder. The Court also affirmed denial of Melcara’s motion seeking dismissal of this claim against it as the trial court correctly determined that issues of fact exist as to whether it is subject to liability as Longwood’s agent with authority to control the injury-producing work because it had responsibility to retain contractors to perform the work and for site safety.
 
PRACTICE POINT: A party is deemed to be an agent of an owner or general contractor when it has supervisory control and authority over the injury-producing work. A statutory agency relationship is created where the owner or contractor delegates the work to a third-party, who then obtains the concomitant authority to supervise and control that work. Here, Melcara not only had responsibility to retain contractors to perform the work and for site safety, but it also retained the authority to give directives to AAD’s designated representative and the injury-producing work was within the scope of the work it delegated to AAD.
 
Labor Law § 241(6) (TPW)
As to the Labor Law § 241(6) claims, the First Department unanimously modified the lower court’s decision predicated on Industrial Code 12 NYCRR § 23-1.7(d).   It was determined that defendant AAD was entitled to summary dismissal of the claim given the fire escape ladder was not “a floor, passageway, walkway, scaffold, platform or other elevated working surface” as enumerated in that section.  However, the Court affirmed the finding of a question of fact as to whether defendant Melcara was subject to liability under the Labor Law, as an agent with authority to control the injury-producing work, given it had responsibility to retain contractors to perform the work and for site safety.
 
Indemnity Issues in Labor Law (BFM)
The First Department found no basis to dismiss Longwood’s claims for contractual indemnification against Melcara, based on anti-subrogation principles. Although Melcara’s insurance carrier was providing Longwood with a defense, it was unclear whether the carrier had agreed to indemnify Longwood. As there was insufficient proof that Melcara’s insurer would actually cover the same risk for Longwood that it was covering for Melcara, there was no basis to dismiss the indemnification claim on the basis of anti-subrogation.
 
As issues of fact existed as to whether Longwood was negligent in its maintenance of the fire escape drop ladder, Longwood was not entitled to summary judgment on its contractual indemnity claim against Melcara, AAD, AIM, C&W, and Cross.
 
Because C&W and Cross had undertaken to repair the fire escape drop ladder that malfunctioned, causing plaintiff’s accident, issues of fact existed as to whether the accident arose out of their work or their negligence. As such, Cross was not entitled to dismissal of the third-party negligence, common-law indemnity, and contribution claims against it and C&W was not entitled to dismissal of Longwood’s, Triboro’s, and AAD’s common-law indemnity and contribution claims against it.  However, because AIM and Cross did not oppose C&W’s motion for summary judgment dismissing their claims against it for common-law indemnity and contribution, those claims should have been dismissed.
 
Cross was not entitled to dismissal of Longwood's contractual indemnity claim against it as its own blanket subcontract itself contained an indemnification provision expressly in favor of “Owner,” and the owner indemnitee’s identity could be determined by reference to the incorporated prime contract.
 
Lastly, AIM was not entitled to dismissal of Longwood’s contractual indemnity claim and Longwood’s and Triboro’s common-law indemnity and contribution claims as its sub-subcontract clearly evidenced its agreement to indemnify Triboro and the Owner, thus meeting the requirements of the Workers’ Compensation Law.  Further, AIM failed to show through competent medical evidence that plaintiff did not suffer a grave injury.
 
 

Pados v City of New York
March 25, 2021
Appellate Division, First Department

 
Plaintiff, a journeyman ironworker at the Hudson Yards project, was allegedly injured when a piece of rebar fell from thirty feet above, striking him. The trial court denied plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim.
 
Labor Law § 240(1) (MAS)
The First Department unanimously reversed and granted summary judgment in favor of plaintiff, whose testimony established a prima facie showing that the rebar, whether it was dropped or fell in some other manner, was material that required securing for purposes of Labor Law § 240(1).  
 
PRACTICE POINT: With respect to falling objects, Labor Law § 240(1) applies where the falling of an object is related to a “significant risk inherent in … the relative elevation … at which materials or loads must be positioned or secured” (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267-68 [2001]). Where, as here, there is evidence that the falling objects clearly required securing for purposes of the undertaking, because there is an expectation that it could fall, and the object fell because of the absence of or inadequacy of a safety device of the kind enumerated in the statute, it is a § 240(1) case.
 
 

Robles v 635 Owner, LLC
March 25, 2021
Appellate Division, First Department

 
Plaintiff was allegedly injured when he fell from a ladder while inspecting the mezzanine as part of his work on premises owned by defendant 635 Owner for a construction project where defendant W5 Group was the general contractor. Plaintiff discontinued his Labor Law § 200 and common-law negligence claims against 635 Owner and W5 Group. The trial court conditionally granted 635 Owner’s motion for partial summary judgment on its crossclaim for contractual indemnification and denied W5’s cross-motion to dismiss 635 Owner’s crossclaims for contribution, common-law indemnity, and breach of contract for failing to procure insurance.
 
Indemnity Issues in Labor Law (BFM)
635 Owner was entitled to contractual indemnity from W5 Group, as plaintiff had discontinued the Labor Law § 200/common law negligence claims against it and W5 Group failed to raise an issue of fact as to its negligence. As there was no evidence that 635 Owner had actual or constructive notice of the alleged dangerous condition, its liability for plaintiff’s injuries was purely vicarious. Accordingly, the First Department held the trial court was correct in not dismissing 635 Owner’s crossclaims for contribution and common-law indemnification.
 
 

Devoy v City of New York
March 3, 2021
Appellate Division, Second Department

 
Plaintiff was employed as a laborer by a contractor who was performing work that involved the construction of an underground tunnel. Tunnel segments were being carried by the train. Plaintiff was standing on a mobile, elevated platform that enabled him to avoid being struck by a train that was passing by on a track in the tunnel. These tunnel segments turned sideways and struck him as the train passed, causing him to fall off the elevated platform and underneath the train. The trial court granted plaintiff's motion for summary judgment under Labor Law § 240(1) and denied defendants’ summary judgment motion dismissing the Labor Law §§ 240(1), 241(6), 200, and common-law negligence claims.
 
Labor Law § 240(1) (MAS)
The Second Department affirmed as plaintiff established, prima facie, that there was a violation of the statute and that this violation was a proximate cause of his injuries. Plaintiff’s injuries were a foreseeable consequence of standing on a small elevation platform above a moving train, such that the act of the tunnel segments rotating, and striking plaintiff was not of such an “extraordinary nature” as to relieve defendants from liability. The height differential from which plaintiff fell was also sufficient to invoke the protection of the statute. Defendants offered no evidence contradicting plaintiff’s account of the events surrounding the accident and failed to raise a triable issue of fact.
 
PRACTICE POINT: Here, plaintiff’s work subjected him to a difference between the elevation level of his required work and a lower level and his injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation different when the mobile, elevated platform failed to prevent plaintiff from falling, and this violation of Labor Law § 240(1) was a proximate cause of his injuries.
 
Labor Law § 241(6) (TPW)
Here, the Second Department affirmed the denial of that branch of the defendants’ motion seeking dismissal of the Labor Law § 241(6) cause of action predicated upon a violation of 12 NYCRR § 23-5.2 (General provision for all scaffolds; approval required) as defendants failed to establish the section was inapplicable to the underlying facts.  However, the Second Department reversed the trial court’s improper denial of that branch of the motion seeking dismissal of claims predicated on 12 NYCRR 23-1.16(d) (Safety belts, harnesses, tail lines and lifelines) and 23-5.1(f) and (h) (General provisions for all scaffolds; maintenance and erection) as plaintiff conceded their inapplicability. 
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed denial of summary judgment as to the Labor Law § 200 and common-law negligence claims. It held that although defendants established, prima facie, that they did not have any supervisory control over the work site, plaintiff demonstrated that defendants’ motion was premature. A party contending that a summary judgment motion is premature must demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant.  In this case, plaintiff demonstrated the motion was made prior to the deposition of a witness from a nonparty, and plaintiff was able to demonstrate how this discovery might lead to relevant evidence regarding defendants' supervisory control over the work site.
 
 

McKnight v Metro-North R.R.
March 3, 2021
Appellate Division, Second Department

 
Plaintiff was employed by nonparty Skanska, a general contractor hired by Metro-North for the project., which involved the construction of two two-story buildings. Plaintiff was working at the project, performing welding work on one of the partially completed buildings when he used an aerial lift to ascend to the second floor of the building and work on the roof. He finished his work for the day at 3:00 p.m., descended to the ground floor, and put away his equipment. After realizing he left his car keys on the second floor of the building, he used the aerial lift to ascend to the second floor, retrieved his keys, and got back into the lift. However, when he attempted to use the lift to descend to the ground floor, the lift “release[d]” and his head “slammed” into the railing of the lift’s basket. The trial court granted defendants’ summary judgment motion seeking dismissal of the Labor Law § 241(6) claim.
 
Labor Law § 241(6) (TPW)
The Second Department affirmed the dismissal of the alleged violation of Labor Law § 241(6) as plaintiff was not engaged in any of the enumerated activities protected by Labor Law at the time of his accident given the accident occurred after plaintiff and his coworker had completed their work for the day.
 
 

Bianchi v New York City Tr. Auth.
March 10, 2021
Appellate Division, Second Department

 
Transit Authority hired Picone as the general contractor to renovate certain subway stations. Picone hired nonparty PJS Electric as a subcontractor to do the electrical work. Plaintiff was employed by PJS Electric and was allegedly injured at the project while working inside of a box truck owned by PJS Electric when construction materials inside of the truck fell and struck him.  The trial court, upon a jury verdict in favor of defendants on the issue of liability on Labor Law § 241(6) claim, and upon the granting defendants’ motion pursuant to CPLR § 4401 for judgment as a matter of law dismissing the Labor Law §§ 240(1), 200, and common-law negligence claims, in effect, dismissed the complaint. The trial court also denied plaintiff's motion, pursuant to CPLR 4404(a), to set aside the jury’s verdict as contrary to the weight of the evidence and for a new trial.
 
Labor Law § 240(1) (MAS)
The Second Department affirmed dismissal of the Labor Law § 240(1) claim because there was no evidence that the falling objects were being hoisted, that the falling objects required securing for the purposes of the undertaking, or that the objects fell because of the inadequacy of a safety device. Therefore, the trial court properly determined that there was no rational process by which the jury could find in favor of plaintiff on his Labor Law § 240(1) claim.
 
PRACTICE POINT: This case highlights the different standards involved in a summary judgment motion versus a motion for a directed verdict. Under summary judgment, the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmoving party. Conversely, to be awarded judgment as a matter of law pursuant to CPLR § 4401, there must “no rational process by which the trier of fact could base a finding in favor of the nonmoving party” upon the evidence presented at trial. This case exemplifies the shifting of burdens between summary judgment and trial as the § 240(1) claim was determined by the judge as factfinder on a motion for a directed verdict.
 
Labor Law § 241(6) (TPW)
The Second Department affirmed the trial court’s denial of plaintiff’s motion pursuant to CPLR 4404(a) to set aside the verdict following a defense verdict dismissing the Labor Law § 241(6) cause of action.  The Industrial Code section in question, 12 NYCRR 23-2.1(a)(1), provides, “[a]ll building materials shall be stored in a safe and orderly manner. Material piles shall be stable under all conditions and so located that they do not obstruct any passageway, walkway, stairway or other thoroughfare.”  The Second Department held that the jury fairly could have found that the subject materials were not located so as to obstruct a “passageway, walkway, stairway or other thoroughfare” within the meaning of 12 NYCRR 23-2.1(a)(1) and therefore the verdict was not contrary to the weight of the evidence.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed dismissal of the Labor Law § 200 and common-law negligence claims. Where, as in this case, plaintiff is claiming an injury as a result of a dangerous condition on the premises, a property owner may be held liable if it created the dangerous condition, or if the owner had actual or constructive notice of the dangerous or defective condition and failed to remedy that condition. A general contractor may be held liable if it has control over the work site and actual or constructive notice of the dangerous condition. In this case, however, there was no evidence presented to prove that the Transit Authority created the dangerous condition in the box truck or had actual or constructive notice of it. Nor was there evidence that the general contractor had control over the work site within the subcontractor’s box truck where the injury occurred. 
 
 

Kavouras v Steel-More Contr. Corp.
March 10, 2021
Appellate Division, Second Department

 
Plaintiff’s employer, nonparty Corcon, was hired to paint the towers of the Verrazzano-Narrows Bridge, which is owned and operated by the transit defendants. Ammann, a consultant engineer, was hired by the transit defendants. Plaintiff testified that Corcon used a box truck to house paint drums and pumps, which delivered paint through various spray lines to “spray guns” used by painters on the bridge towers. Plaintiff was instructed by his supervisor to go into the truck and mix paint. He entered the truck and saw, among other things, containers of paint, the pumps, and “trash [that was] thrown on the floor,” including buckets, lid covers, and boxes that had been used by employees of Corcon while painting. He picked up a five-gallon container of paint and walked three feet when his foot hit a spray line, and he lost his balance and fell. Although he saw several spray lines in the truck before he fell, he did not see the spray line that he tripped over before he fell because there was garbage covering it. The trial court denied the transit defendants and Ammann’s motions for summary judgment dismissing the Labor Law § 241(6) claim predicated upon a violation of 12 NYCRR 23-1.7(e)(2).
 
Labor Law § 241(6) (TPW)
The Second Department affirmed the denial of defendants’ motions for summary judgment dismissing so much of the Labor Law § 241(6) cause of action predicated upon 12 NYCRR 23-1.7(e)(2).  Industrial Code 12 NYCRR 23-1.7(e)(2), requires "[t]he parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed."  Defendants were unable to establish that the garbage that allegedly obscured the plaintiff's view of the spray line was not a violation of the section or that such violation did not proximately cause the plaintiff's accident.  Further, the defendants failed to demonstrate, as a matter of law, that the condition was integral to the work being performed.  Last, defendant Amman failed to demonstrate that it was not a statutory agent or eliminate triable issues of fact as to whether it was delegated to the authority to correct unsafe conditions.
 
 

Rodriguez v HY 38 Owner, LLC
March 10, 2021
Appellate Division, Second Department

 
Monadnock was the construction manager at a construction site owned by HY 38. Early in the project, the demolition contractor, World Class built a perimeter fence, which included a gate located on the northern edge of the site, consisting of a double-leaf plywood door. Sometime after World Class completed the demolition work at the site, plaintiff's employer, nonparty IBK was hired by Monadnock to perform concrete masonry work. On the date of the accident, plaintiff was informed by his foreman that one of the leaves of the plywood door had fallen down, and that they had to repair it. While repairing the fallen leaf, plaintiff was standing in the gateway when the other leaf of the door, which remained affixed to the perimeter fence and was not in need of repair, was blown shut by a gust of wind, striking plaintiff, and allegedly causing injuries. The trial court granted HY 38’s and Monadnock’s summary judgment motions seeking dismissal of the Labor Law § 200 and common-law negligence claims.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department reversed the decision, holding that defendants failed to meet their burden of proof on summary judgment. Where an accident is alleged to involve defects in both the premises and the manner in which the work was performed, a defendant moving for summary judgment dismissing a Labor Law § 200 claim is obligated to address the proof applicable to both liability standards.  In this case, Plaintiff’s complaint and bill of particulars sounded almost entirely in premises liability. On summary judgment, however, defendants argued it was exclusively a means and methods case. Defendants entirely failed to address the premises liability allegations, as such, they failed to meet their burden of proof on summary judgment.
 
PRACTICE POINT:  Even if you are certain that the case involves only one of the two bases for liability under Labor Law § 200, you must carefully review the Plaintiff’s allegations, and be prepared to discuss both in your motion papers.
 
 

Cruz v 1142 Bedford Ave., LLC
March 17, 2021
Appellate Division, Second Department

 
Plaintiff sustained injuries to his left hand while operating a table saw at a construction site. The project entailed the renovation of a ground-floor commercial space, consisting of two condo units, which would operate as a supermarket upon completion of construction. One condo unit was owned by 1142 Bedford and the other by 2 Big Meadow. 1142 Bedford and 2 Big Meadow were both owned by the same two principals. Pursuant to an operating agreement, 1142 Bedford was authorized to manage all business and affairs of 2 Big Meadow, and to execute any necessary documents in connection with the management and development of 2 Big Meadow’s property. While the project was ongoing, both units were leased by 1142 Bedford to defendant Vasquez.
 
The trial court granted 2 Big Meadow’s summary judgment motion seeking dismissal of the complaint and all crossclaims asserted against it and denied the motion of 1142 Bedford and Vasquez for summary judgment dismissing the Labor Law § 241(6) claim predicated on violations of Industrial Code §§ 23-1.5(c)(3) and 23-1.12(c)(2) and (3). The trial court also granted 2 Big Meadow’s summary judgment motion to dismiss the Labor Law § 241(6) claim predicated on §§ 23-1.5(c)(3) and 23-1.12(c)(2) and (3) and denied plaintiffs’ cross-motion for summary judgment on the liability against 1142 Bedford and Vasquez, and against 2 Big Meadow respectively, on the Labor Law § 241(6) claim predicated on §§ 23-1.5(c)(3) as well as 23-1.12(c)(2) and (3).
 
Labor Law § 241(6) (TPW)
The Second Department modified the underling decision.  It was determined that plaintiffs demonstrated their prima facie entitlement to judgment as a matter of law on the issue of liability as to the Labor Law § 241(6) cause of action predicated on violations of Industrial Code 12 NYCRR §§ 23-1.5(c)(3) and 23-1.12(c)(2) and (3) insofar as asserted against the Bedford defendants given plaintiff’s uncontroverted deposition testimony established that his injuries were proximately caused by the malfunctioning of the table saw, which was not equipped with a protective guard or spreader in violation of the relevant Industrial Code provisions.  The Bedford defendants were unable to raise a triable issue of fact as to how the accident occurred.
 
Further, defendant 2 Big Meadow failed to meet its burden of establishing that it was not an owner within the meaning of Labor Law § 241(6) as the precise location of the accident was in dispute.  Moreover, the Court continued that the term ‘owner’ is not limited to the titleholder of the property where the accident occurred and encompasses a person who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his [or her] benefit.

 

Leon-Rodriguez v Roman Catholic Church of Sts. Cyril & Methodius
March 17, 2021
Appellate Division, Second Department

 
Hundred Crowns hired Deluxe to be the general contractor on a project to renovate a building that Hundred Crowns leased from the building’s owner, the Church. Deluxe hired Mybem to demolish the building’s interior. Plaintiff, an employee of Mybem, was injured while demolishing a ceiling in the building, using a scaffold which allegedly did not have any safety railings. He was prying wood beams off of the concrete structure above the drop ceiling, which he already demolished, when a large piece of concrete dislodged and fell. He was hit with concrete and fell off the scaffold.
 
The trial court denied plaintiff's motion for summary judgment under Labor Law §§ 240(1) and 241(6), which was predicated upon Industrial Codes §§ 23-5.1(b) and (c)(2), and 23-5.3(e). The trial court also denied Hundred Crowns and Deluxe’s motion for summary judgment dismissing the Labor Law §§ 240(1), 200 and common-law negligence claims and the § 241(6) claim based on § 23-5.1(b) and (c)(2), and 23-5.3(e), as well as the third-party complaint for contractual indemnification and to recover damages for breach of contract for failing to procure insurance.
 
Labor Law § 240(1) (MAS)
The Second Department reversed the trial court and granted summary judgment to plaintiff, who demonstrated prima facie that the scaffold he was using lacked any safety railings and that he tried to grab onto something as he fell from the scaffold but “there was nothing to grab.” In opposition, defendants/third-party plaintiffs failed to raise a triable issue of fact.
 
PRACTICE POINT: A plaintiff will generally meet his prima facie burden of demonstrating a violation of § 240(1) and that this violation was a proximate cause of his injuries by testifying that he fell from a scaffold that did not have safety railings and he was not provided with a safety device to prevent him from falling. Also, there can be more than one proximate cause of an accident, but in those cases, plaintiff’s conduct can never be the sole proximate cause of his injuries.
 
Labor Law § 241(6) (TPW)
The Second Department modified the decision below in finding that plaintiff met his burden with respect to the Labor Law § 241(6) cause of action predicated upon 12 NYCRR 23-5.3(e) (General provisions for metal scaffolds; Safety railings), by establishing that the scaffold lacked safety railings in violation of that regulation and that such violation was a proximate cause of his injuries.  In opposition, defendants/third-party plaintiffs failed to raise a triable issue of fact.  However, neither the plaintiff nor the defendants/third-party plaintiffs met their prima facie burdens on those branches of the motion and cross motion with regard to causes of action as was predicated upon 12 NYCRR 23-5.1(b) (General provisions for all scaffolds; footing) and (c)(2) (Scaffold structure). 
 
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department reversed the trial court and granted summary judgment to defendants on the Labor Law § 200 and common-law negligence claims. To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed, a defendant must have authority to exercise supervision and control over the work. Where a plaintiff’s injuries arise from a dangerous condition on the premises, an owner may be liable under Labor Law § 200 if it either created or had actual or constructive notice of the dangerous condition. A general contractor may be liable if it had control over the work site and actual or constructive notice of the dangerous condition. Where, as here, a plaintiff alleges both that the accident arose from defects in the premises and from the manner in which the work was performed, a defendant moving for summary judgment is obligated to address the proof applicable to both standards.
 
In support of their motion, defendants demonstrated they did not have the authority to supervise or control the plaintiff’s work, which was controlled solely by Mybem. Defendants further demonstrated they did not create or have actual or constructive notice of any alleged defect in the concrete ceiling since the concrete ceiling had been covered by a drop ceiling until the drop ceiling was demolished by Mybem, so any alleged defect in the concrete ceiling was latent and not discoverable upon a reasonable inspection. Plaintiff failed to raise a triable issue of fact in opposition. Therefore, summary judgment should have been granted to defendants.
 
Indemnity Issues in Labor Law (BFM)
The Second Department determined that defendants/third-party plaintiffs were not entitled to contractual indemnity from Mybem as they failed to establish that Mybem had agreed to indemnify the Church and Hundred Crowns, LLC, or that those parties were intended third-party beneficiaries of the contract between Deluxe and Mybem. The Court noted that under the contract at issue, Mybem’s duty to indemnify was limited to liabilities incurred as a result of its negligence.  Since defendants/third-party plaintiffs failed to demonstrate the accident was caused by Mybem’s negligence, that branch of their cross-motion for summary judgment on the contractual indemnification claim was properly denied.
 
 

Andres v North 10 Project, LLC
March 24, 2021
Appellate Division, Second Department

 
Plaintiff was allegedly injured when an electrical panel box that was eight feet high, four feet wide, and two to three feet deep, fell and struck him as he was attempting to remove it from a wall. The trial court denied plaintiff’s motion for summary judgment under Labor Law § 240(1) against North 10 Project and HSD Construction.
 
Labor Law § 240(1) (MAS)
The Second Department affirmed as plaintiff failed to establish that the electrical panel box was an object that required securing for the purposes of the undertaking. Thus, the trial court properly denied plaintiff’s motion without regard to the sufficiency of the opposition papers.
 
PRACTICE POINT: While we understand plaintiff did not meet his burden of demonstrating that protective devices of the kinds enumerated in the statute were shown to be applicable to the circumstances of his injury, we question whether defendants would be entitled to summary judgment given the dimensions of the panel box and whether an enumerated safety device would have prevented the accident, which are determinations left for the trier of fact.
 
 

Christie v Live Nation Concerts, Inc.
March 24, 2021
Appellate Division, Second Department

 
Plaintiff, a construction laborer, allegedly injured his knee while carrying a heavy steel truss with four coworkers on level ground. The trial court granted the separate motions of Live Nation and BMS CAT for summary judgment dismissing the Labor Law § 240(1) claim against each of them and denied plaintiff's cross-motion for partial summary judgment on that claim. 
 
Labor Law § 240(1) (MAS)
The Second Department affirmed as defendants demonstrated, prima facie, that plaintiff’s injury was not caused by the failure to provide adequate protection against an elevation-related hazard encompassed by Labor Law § 240(1).
 
PRACTICE POINT: In determining whether a plaintiff is entitled to the extraordinary protections of Labor Law § 240(1), the “single decisive question [is] whether plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]). “Without a significant elevation differential, Labor Law § 240(1) does not apply, even if the injury is caused by the application of gravity on an object” (Christiansen v Bonacio Constr., Inc., 129 AD3d 1156, 1158 [3d Dept 2015]). Here, defendants proof established that plaintiff’s injury in twisting his knee when he and his coworkers lost their grip on the truss they were carrying was not caused by the failure to provide adequate protection against an elevation-related hazard encompassed by § 240(1).
 
 

Crutch v 421 Kent Dev., LLC
March 24, 2021
Appellate Division, Second Department

 
421 Kent entered into a construction management services agreement with Wonder Works to develop a parcel of property. To complete the project, Wonder Works entered into a subcontract with Everest to build a loading dock and elevator at the project. Wonder Works also entered into a subcontract with Centrifugal to perform the HVAC work. Centrifugal entered into a subcontract with J & Z to perform certain HVAC installation work. J & Z entered into a subcontract with Metropolis to perform all work called for in the subcontract between Centrifugal and J & Z.
 
Plaintiff, an HVAC mechanic employed by Metropolis, arrived at the job site at 6:50 a.m. and walked up a ramp to an elevated loading dock at the site. This loading dock, which had removable pipe railings along its perimeter, had been set up by Everest. Plaintiff waited on the loading dock for an elevator, which would begin running at 7:00 a.m., to take him up to the various floors he would be working on that day. While waiting for the elevator, plaintiff leaned back against one of the railings, and a horizontal support gave out, causing him to fall from the loading dock onto the concrete four to five feet below. 
 
The trial court denied plaintiff's motion for summary judgment on the issue of liability under Labor Law § 240(1), searched the record, and awarded summary judgment dismissing that claim. It also denied Everest’s cross-motion for summary judgment dismissing the claims for contribution and common-law indemnification against it and denied its cross-motion for summary judgment on its counterclaim for contractual indemnification.
 
Labor Law § 240(1) (MAS)
The Second Department reversed the trial court and granted plaintiff summary judgment as plaintiff established that he needed to use the elevator, one of two at opposite ends of the construction site, to gain access to the various floors where he would be working throughout the day. Thus, accessing and waiting at the loading dock for the elevator, even before working hours begun, was necessary to his work. Thus, the Court concluded that the loading dock from which plaintiff fell is included under “those parts, which must be accessed by a worker to do his or her job.” Accordingly, the fact that plaintiff was not engaged in HVAC work at the moment of his accident does not preclude the application of § 240(1).
 
Plaintiff further established that 421 Kent, as the property owner, and Wonder Works, as the general contractor, were proper parties under the Labor Law, that the pipe railings at the loading dock were inadequate to provide proper safety to plaintiff and that this inadequacy was a proximate cause of his injuries. In opposition to plaintiff’s prima facie showing, neither defendants, third-party defendant, nor Everest raised a triable issue of fact.
 
PRACTICE POINT: The critical fact in this case is the safety device, the removable pipe railings, had been constructed for use during the project by Everest and it is unclear what the result would have been had the railing been a part of the permanent structure. Accordingly, we think this decision should be narrowly construed because plaintiff needed to use the elevator to gain access to his work area; therefore, it was necessary for plaintiff to use the loading dock for the elevator from which he fell in order to perform his work.
 
Indemnity Issues in Labor Law (BFM)
Everest was not entitled to summary judgment dismissing the second third-party cause of action for common-law indemnification as it failed to affirmatively demonstrate that it was free from negligence.  The Court noted that its argument was based on conclusory and unsubstantiated assertions that no evidence of its negligence had been proffered by the defendants, which was insufficient to meet its burden.
Additionally, Everest was not entitled to summary judgment on its counterclaim for contractual indemnification as it failed to eliminate all issues of fact as to whether the parties intended for Wonder Works to indemnify Everest or vice versa.  As mentioned above, Everest also failed to affirmatively demonstrate that it was free from negligence.

 

Crutch v 421 Kent Dev., LLC
March 24, 2021
Appellate Division, Second Department

 
Plaintiff, an HVAC mechanic employed by Metropolis, fell from an elevated platform at the job site. The trial court denied third-party defendant’s summary judgment motion dismissing the contractual indemnification and breach of contract claims. 
 
Indemnity Issues in Labor Law (BFM)
By failing to include the indemnification and insurance requirement portions of the contract with its moving papers, Centrifugal failed to establish that the Centrifugal subcontract did not place any duty upon Centrifugal to indemnify the defendants.  As such, it was not entitled to dismissal of the third-party cause of action for contractual indemnification.  For similar reasons, Centrifugal failed to establish that the plaintiff's accident did not trigger any indemnification provision within these contract documents.

 

Bennett v Savage
March 4, 2021
Appellate Division, Third Department

 
Plaintiff was insulating a building located in the City of Binghamton and owned by defendants. While plaintiff was on a ladder, the ladder moved, causing him to fall and sustain injuries. The trial court granted plaintiff's summary judgment motion under Labor Law § 240(1) and found he was not a recalcitrant worker and that he did not act recklessly in placing or using the ladder. 
 
Labor Law § 240(1) (MAS)
The Third Department’s majority affirmed as plaintiff’s deposition testimony demonstrated that the ladder used by him collapsed, slipped, or otherwise failed to support him, and caused him to fall, thereby establishing a prima facie entitlement to partial summary judgment. In opposition, defendant relied upon plaintiff’s testimony, in which he averred that he chose a wooden, A-frame ladder, which he described as “sturdy” and placed it so it was steady and free from “wiggling.” Plaintiff testified that, while standing on the steps of the ladder, he maintained a three-point safety stance, with his feet and one arm in contact with the ladder, and his other hand holding the hose that fed the insulation into the building’s overhang. Plaintiff indicated the ladder began to move forward, causing him to fall and defendant argued this testimony established the ladder was adequate and properly placed and that the testimony about plaintiff keeping one hand in contact with the ladder contradicted gestures he made during the deposition, where he seemed to indicate that “both [of his] hands [were] cupped around an imaginary hose”, thus raising issues of fact.
 
It did matter to the majority of the Third Department that the trial court correctly found the deposition testimony unclear as to whether plaintiff maintained the three-point safety stances while on the ladder because even if this disputed issue were resolved against plaintiff, it would merely present a factual question as to his potential comparative negligence, which does not relieve defendant of liability under § 240(1).
 
Justice Lynch’s dissent agrees with the majority that plaintiff made a prima facie showing but argues that defendant raised a genuine issue of fact as to whether the statute was violated because it would be plausible for the trier of fact to conclude that plaintiff fell due to his own negligence and not as a result of any defect in the ladder.
 
PRACTICE POINT: We find the dissent more persuasive because how plaintiff went about performing the work is instructive in determining whether the statute was violated. Plaintiff knew that proper safety precautions required him to maintain a three-point stance on the ladder, meaning both feet were set on a step and one hand was holding the ladder. The process required plaintiff to move and reset the ladder every sixteen inches. The accident occurred as plaintiff was insulating the tenth or eleventh hole, which required him to place the hose eight to ten feet into the hole and hit a remote button to activate the insulation. To perform his task, plaintiff explained he would hold the hose with one hand against the top platform of the ladder and activate the remote with the other hand. At the point plaintiff fell, the ladder began to move forward as he was looking up at the opening and pulling back the hose. He acknowledged that he demonstrated this activity by using both hands to pull the hose. Plaintiff did not know why the ladder moved but noted his movement “automatically set [him] off balance” – an indication that he may not have been holding onto the ladder with one hand.
 
 

Chrisman v Syracuse Soma Project, LLC
March 19, 2021
Appellate Division, Fourth Department

 
Syracuse SOMA Project was the property owner, and Burke was the general contractor (collectively defendants). Plaintiff was allegedly injured at a project involving an addition to a building when he slipped and fell on snow on metal decking. Burke commenced a third-party action seeking indemnification from Whitacre, a subcontractor responsible for supplying steel mesh for the project, and EJ, a subcontractor that was hired by Whitacre to install the steel mesh and plaintiff’s employer. The trial court granted Burke summary judgment dismissing the amended third-party complaint and granted plaintiff’s cross-motion for partial summary judgment on his Labor Law § 241(6) claim based on an alleged violation of Industrial Code § 23-1.7(d).
 
Labor Law § 241(6) (TPW)
The Fourth Department unanimously modified.  Plaintiff's claimed violation of 12 NYCRR 23-1.7(d), which, in pertinent part, directs that workers not be permitted to use “a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition” and requires that substances such as snow and ice be “removed . . . or covered to provide safe footing.”  Defendants did not challenge plaintiff’s showing that the subject regulation was violated, but rather contend the violation of 12 NYCRR 23-1.7 (d) is not conclusive with respect to defendants’ liability and, instead, merely constitutes “some evidence of negligence and thereby reserve[s], for resolution by a [factfinder], the issue of whether the equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances.” 
 
It was determined that that the conflicting testimony “raised factual issues with respect to the reasonableness of the safety measures undertaken at the work site.”  The court noted there is a “clear distinction between a violation of an administrative regulation promulgated pursuant to statute, and a violation of an explicit provision of a statute proper: while the latter gives rise to absolute liability without regard to whether the failure to observe special statutory precautions was caused by the fault or negligence of any particular individual, the former is simply some evidence of negligence which the jury could take into consideration with all the other evidence bearing on that subject.”  As such, plaintiff's cross motion was denied in its entirety.
 
Indemnity Issues in Labor Law (BFM)
The Fourth Department held that the dismissal of Burke's contractual indemnification cause of action against Whitacre was proper as Whitacre established that Burke and Whitacre operated under a purchase agreement only and that the purported AIA Contract referenced by Burke, and the contractual indemnification provision included in it, was neither intended to be, nor made, part of the agreement between Burke and Whitacre.  Notably, the Court found the affidavit of Burke's owner, which contradicted his deposition testimony, to constitute an attempt to avoid the consequences of his prior deposition testimony by raising feigned issues of fact, which was insufficient to avoid summary judgment.

 

Dennis v Cerrone
March 19, 2021
Appellate Division, Fourth Department

 
Plaintiff was allegedly injured while performing framing work at a residential construction project. Cerrone was the owner of the residence, and the Fourth Department previously affirmed that part of an order granting his cross-motion for summary judgment dismissing the amended complaint against him (Dennis v Cerrone, 167 AD3d 1475 [4th Dept 2018]). Cerrone was also a part owner, general superintendent, and vice president of MCI, and several employees of MCI completed work on various aspects of the project. In the prior appeal, the Court reversed the trial court in granting that part of MCI's cross-motion for summary judgment to dismiss the Labor Law § 240 (1) claim.
 
At the nonjury trial, the trial court granted MCI’s motion for a directed verdict, despite that MCI had “correctly conceded in its brief and at oral argument that questions of fact exist[ed] with respect to whether it had the requisite authority to control or supervise the work” (id. at 1477).
 
Labor Law § 240(1) (MAS)
The Fourth Department unanimously reversed the trial court’s directed verdict in favor of MCI. When the evidence is viewed in the light most favorable to plaintiff, the issues of credibility are resolved in his favor, and he is afforded every inference. Therefore, the Court held that there is a rational process by which a trier of fact could find that MCI had either the power to enforce safety standards and choose responsible contractors or the power to coordinate and supervise the overall project as required for liability under Labor Law §§ 240 (1) and 241(6).
 
PRACTICE POINT: The standard for determining a motion for directed verdict requires the trial court to view the evidence in the light most favorable to the nonmoving party and resolve all issues of credibility in their favor and may grant the motion only if there is no rational process by which the trier of fact could find for plaintiff as against defendant. Here, MCI could not satisfy its burden when it previously conceded there exist questions of fact as to whether it had the requisite authority to supervise and direct the injury-producing work. This is also a unique case because the trial court’s decision was made as a matter of law and not as a matter of fact, which he could have done.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Fourth Department reversed the trial court’s decision, holding that there is a “rational process” by which a factfinder could determine that MCI is liable under Labor Law § 200 and/or common-law negligence, in that it had the authority to direct and control the work of plaintiff’s employer and it actually exercised that authority.
 

 
Ward v Corning Painted Post Area Sch. Dist.
March 19, 2021
Appellate Division, Fourth Department

 
Plaintiff was allegedly injured when he fell from an extension ladder while carrying a 10-foot metal “pour stop” to the second floor of a building at a construction site. The trial court denied plaintiff’s motion for summary judgment under Labor Law § 240(1) and granted defendants’ cross-motions to dismiss the Labor Law § 241(6) claim.
 
Labor Law § 240(1) (MAS)
The Fourth Department affirmed as plaintiff failed to meet his burden inasmuch as his own submissions raised an issue of fact as to whether his conduct in “refusing to use available, safe and appropriate equipment” was the sole proximate cause of the accident. Plaintiff’s testimony established the availability at the site of safer means for moving the pour stop, including a forklift and ropes that could have been used to lift or hoist the pour stop to the second floor. Deposition testimony also established that plaintiff could have handed the pour stop to a coworker on the second level.
 
The foreman testified that he told plaintiff not to transport materials to the second floor by carrying items up the ladder. Plaintiff testified that he knew he should climb a ladder only when he was able to maintain three points of contact with the ladder and admitted that he was not able to do so while carrying the pour stop. Therefore, the Court found a triable issue of fact “whether plaintiff, based on his training, prior practice, and common sense, knew or should have known” not to carry the pour stop by hand up the ladder and to use other means available to him (Mulcaire v Buffalo Structural Steel Constr. Corp., 45 AD3d 1426, 1427 [4th Dept 2007]; c.f. Smith v Picone Constr. Corp., 63 AD3d 1716, 1716-1717 [4th Dept 2009]).
 
PRACTICE POINT: Can someone please tell me why the defense did not cross-move for summary judgment on sole proximate cause grounds if plaintiff knew that he should climb a ladder only when he was able to maintain three points of contact with the ladder, admitted that he was not able to do so while carrying the pour stop, was explicitly told by the foreman not to transport materials to the second floor by carrying items up the ladder, and plaintiff would not have been injured had he complied with the foreman’s instruction?
 
Labor Law § 241(6) (TPW)
The Fourth Department affirmed the trial court’s grant of those parts of defendants’ cross motions with respect to the Labor Law § 241 (6) claim premised on alleged violations of 12 NYCRR 23-1.7(f) and 12 NYCRR 23-6.2.  Industrial Code 12 NYCRR 23-1.7(f) provides that "[s]tairways, ramps or runways shall be provided as the means of access to working levels above or below ground except where the nature or the progress of the work prevents their installation in which case ladders or other safe means of access shall be provided." Defendants submitted evidence establishing that, at the time of the incident, the work had not yet progressed to the point that it was appropriate to install a temporary stair tower. Further, there is no dispute that the ladder provided as a means of access to the second floor was not defective. Thus, defendants met their burden of establishing as a matter of law that they did not violate that regulation and that any alleged violation was not a proximate cause of plaintiff's injuries.  Defendants also met their initial burden on their cross motions of establishing that 12 NYCRR 23-6.2, which is entitled "Rigging, rope and chains for material hoists" and concerns standards for hoisting, is inapplicable to the facts of this case because plaintiff was not hoisting the pour stop at the time of the incident.
 
 

Slowe v Lecesse Constr. Servs., LLC
March 26, 2021
Appellate Division, Fourth Department

 
Plaintiff was allegedly injured by a component of an unbuilt mailbox structure that fell onto him at a construction site owned by Stone Quarry. The project was managed by Lecesse Construction. The trial court granted defendants’ summary judgment motion dismissing the Labor Law §§ 240 (1) and 241 (6) claims and denied plaintiff’s motion for summary judgment.
 
Labor Law § 241(6) (TPW)
The Fourth Department unanimously modified the trial court's order dismissing the Labor Law § 241 (6) claim and reinstated it.  Plaintiff's Labor Law § 241 (6) claim was predicated on 12 NYCRR 23-2.1(a)(1), which provides in relevant part that "[a]ll building materials shall be stored in a safe and orderly manner. Material piles shall be stable under all conditions and so located that they do not obstruct any passageway, walkway, stairway or other thoroughfare."  Industrial Code 12 NYCRR 23-2.1(a)(1) is not limited exclusively to obstructed thoroughfares. Rather, the Court held the plain text of the regulation creates three distinct obligations and potential sources of liability: first, "[a]ll building materials shall be stored in a safe and orderly manner"; second, "[m]aterial piles shall be stable under all conditions"; and third, "[m]aterial piles shall be . . . so located that they do not obstruct any passageway, walkway, stairway or other thoroughfare."  It was determined that the mailbox component at issue qualified as a "building material" within the meaning of the section.  Further, triable issues of fact were found to exist regarding the safety and orderliness of the manner in which defendants stored that building material.
 

New York Industrial Code Regulations - (EDA)

12 NYCRR 23-1.21(e)(5)(i)— Stepladder Construction.  (i) Width. The minimum clear width between side rails at the top step of a stepladder shall be 12 inches and such width shall increase a minimum of one inch per foot of length between the top and bottom of the rails.

Regulation § 1.21(e)(5)(i), which pertains to stepladders, contains specific commands that would likely support a Labor Law § 241(6) cause of action.

 

23–1.21(e)(5)(i) 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.

 

 

Hurwitz & Fine, P.C.
 
Buffalo
1300 Liberty Building, Buffalo, NY 14202
Phone: 716-849-8900, Fax: 716-855-0874
             
Long Island
575 Broadhollow Road, Melville, NY 11747
Phone: 631-465-0700, Fax: 631-465-0313

Albany
Phone:  518-641-0398

Additional Offices
Albion  |  Amherst  |  Connecticut  |  Niagara Falls  |  Palm Beach Gardens  |  Rochester  |  Toronto


Hurwitz & Fine, P.C. is a full-service law firm providing legal services
throughout the State of New York
 
www.hurwitzfine.com
© 2021, Hurwitz & Fine, P.C. All Rights Reserved

In some jurisdictions, newsletters such as this may be considered Attorney Advertising.

 

Copyright © 2021, Hurwitz & Fine, P.C., All rights reserved.

Our mailing address is:
1300 Liberty Building, Buffalo, NY  14202

Newsletter Sign-up

Fill in the form to register to receive any of our free electronic newsletters: