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Garcia v 13 W. 38 LLC
March 02, 2023
Appellate Division, First Department
Plaintiff was secretly hired and brought on to the construction site by a non-supervisory employee of Uplift, the elevator subcontractor on the building renovation. The Uplift employee who purportedly hired plaintiff was not authorized by Uplift or any other contractor or owner to hire plaintiff to work at the construction site and that employee surreptitiously paid plaintiff in cash for his work after the accident. The trial court granted defendants' separate motions for summary judgment dismissing the complaint and denied plaintiff's cross-motion for summary judgment on the issue of liability under Labor Law § 240(1). The trial court also denied the owner defendants’ motion on their contractual indemnification claims against Bene Rialto but granted their motion for summary judgment on their contractual indemnity claims against Uplift and granted Uplift's motion for summary judgment dismissing the owner defendants' common-law indemnification claims against it.
 Labor Law § 240(1) (MAS)
The First Department affirmed the trial court’s dismissal of the Labor Law §§ 240(1) and 241(6) claims because plaintiff was not an employee of any defendant for purposes of the Labor Law and plaintiff had no authority to work at the premises.
PRACTICE POINT: We analyze every Labor Law case using the same four criteria: (i) appropriate plaintiff; (ii) appropriate defendant; (iii) appropriate activity; and (iv) elevation-related/gravity-related risk. Here, plaintiff could not establish that he was an appropriate plaintiff because he is not a person “so employed” for purposes of Labor Law §§ 240(1) and 241(6). Therefore, defendants owed no duty to plaintiff under those statutes.
 Labor Law § 200 and Common-Law Negligence (ESB)
The Appellate Division also affirmed the trial court’s dismissal of the Labor Law §200 claim finding the defendants were entitled to dismissal of the Labor Law § 200 and common-law negligence claims because "defendants had no ability to control" plaintiff or his work, which he undertook on a day when, in fact, no elevator work was scheduled (Russin v Louis N. Picciano & Son, 54 NY2d 311, 317 [1981]).
 Indemnity Issues in Labor Law (BFM)
The trial court denied the claim for contractual indemnification claim by the owner defendants against Bene Rialto due to issues of fact. Although NYC Management did not move for summary judgment on its contractual indemnification against Bene Rialto, the First Department, noting that NYC Management was included in the potential indemnitees enumerated in the indemnification provision of the lease, granted summary judgment in favor of the owner defendants on their contractual indemnification claims against Bene Rialto.
The Court found that Bene Rialto failed to raise an issue of fact as to whether the lease between it and 13 West 38th, including the indemnification provision, was effective on the date of the accident. The Court held that although a paragraph in the lease rider initially states that the lease does not become binding until executed, the next three sentences of the same paragraph, along with the language of the main lease, clarify that the lease term is for a 10-year term and commenced on January 1, 2014, before the September 21, 2014 accident. Thus, even if the lease was not executed until after the accident, the accident occurred during the term of the lease, triggering the lease's indemnification provision.
Although the indemnification provision “was not signed until after the alleged injury occurred,” the owner defendants “demonstrated prima facie that it was intended to apply retroactively because the indemnification provision expressly refers to the accident, denoting it by date. Contrary to Uplift's contention, the provision is not void under General Obligations Law § 5-322.1 on the ground that the provision requires Uplift to indemnify the owner defendants for their own negligence, as the owner defendants were free of negligence. Moreover, although Uplift argued that it was not negligent, the indemnification provision still applies, as it is not limited to Uplift's negligence or fault.
Finally, the Court affirmed the trial court’s dismissal of the owner defendants' common-law indemnification claims against Uplift, because Uplift was not negligent and did not exercise supervision or control over the injury-producing work.
Sanchez v Colorado Assoc., LLC
March 02, 2023
Appellate Division, First Department
Plaintiff claims he was injured July 29, 2014, while standing on the floor passing steel pipes to his co-worker, Raylen, who was standing on a 14- to 16-foot-high scaffold. The floor of the scaffold was 7 feet above plaintiff’s head when a heavy, unsecured iron pipe fell from the scaffold and struck him while he was working at defendant’s construction site. Defendant submitted the initial evaluation of plaintiff’s doctor, stating that “[t]he problems with the shoulder began when [plaintiff] twisted his arm forcibly while trying to catch a falling heavy steel beam at work on 7/29/14.” After the ruling of the court, defendant moved to renew and submitted new evidence that plaintiff’s accident occurred at another location. The trial court granted defendant’s motion for leave to renew plaintiff's motion for partial summary judgment and, upon renewal, denied plaintiff's motion for summary judgment on the Labor Law § 240(1) claim.
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s decision to exercise its discretion and grant defendant’s motion for renewal, in the interest of justice. Defendant did not advance a new legal theory on renewal; rather, defendant presented new evidence from plaintiff’s employer that the accident occurred at a different site.
The Court also accepted defendant’s reasonable excuse for its delay in obtaining this evidence. Defendant demonstrated that it was unaware that plaintiff’s accident occurred at a different site and that its investigation into the accident was stymied by third-party defendant’s refusal to comply with discovery and plaintiff’s employer’s refusal to comply with requests for information. Because the new evidence raised a triable issue of fact as to whether plaintiff’s accident occurred at a site owned by defendant, the trial court properly modified the prior order by denying plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim.
PRACTICE POINT: Under CPLR § 2221(e), a motion for leave to renew: (1) shall be identified specifically as such; (2) shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and (3) shall contain reasonable justification for the failure to present such facts on the prior motion. Here, defendant met all three requirements by presenting new evidence from plaintiff’s employer that his accident occurred at a different site, and, perhaps most importantly, explaining, in detail, why that evidence could not have been discovered and presented on the original motion.
Hernandez v 46-24 28th St., LLC
March 9, 2023
Appellate Division, First Department
Plaintiff testified that he fell from an unsecured extension ladder that was leaning against the wall while demolishing a platform inside the third-floor office of a building owned by defendant. Plaintiff also testified that he was working in the office with his coworkers and his foreman. The foreman, however, denied that the events, as described by plaintiff, occurred. The trial court denied plaintiff's cross-motion for partial summary judgment as to Labor Law § 240(1) liability.
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s decision to deny plaintiff’s cross-motion, finding a triable issue of fact exists based on the conflicting evidence as to the way the accident, if any, occurred. The Court also noted that plaintiff and his foreman’s testimony also conflicted as to whether plaintiff was intoxicated on the day of his accident; thus, there is also a question of fact as to whether plaintiff was the sole proximate cause of the accident based on his own intoxication.
PRACTICE POINT: A defendant can defeat a plaintiff’s motion for summary judgment by raising issues of fact as to whether they provided a proper safety device and whether the conduct of plaintiff, including his alleged consumption of alcohol prior to and during the time that he was working, was the sole proximate cause of his injuries.
Devita v NYY Steak Manhattan, LLC
March 14, 2023
Appellate Division, First Department
Plaintiff's decedent was injured when he tripped on a piece of wood in an allegedly poorly lit passageway and fell into an elevator pit that he described as between two and three feet deep. The pit was covered by a planking and plywood cover after it was poured, but at some point, the cover was removed and some of the trades on site stored materials and equipment in it. The general contractor's representative testified the wood cover had been placed for safety purposes. The trial court sua sponte dismissed plaintiff’s Labor Law §§ 240(1), 241(6), 200 and common-law negligence claims.
Labor Law § 240(1) (MAS)
The First Department reversed the trial court and reinstated the Labor Law § 240(1) claim. Based on the facts, the Court held that plaintiff raised an issue of fact – as to whether the application of the statute governs his claim – sufficient to defeat defendants’ various motions for summary judgment.
PRACTICE POINT: This decision is a puzzle. The question of whether § 240(1) applies in this case ought to be a question of law for the Court to decide.
 Labor Law § 241(6) (TPW)
The First Department also reversed as plaintiff successfully raised issues of fact barring dismissal of the Labor Law § 241(6) cause of action under Industrial Code §§ 23-1.7(e) and 23-1.30. Plaintiff's decedent testified that he tripped over debris in a passageway and then into a pit in an area that was arguably a work area. Moreover, the decedent also testified that he had difficulty seeing behind him as he dragged the dolly that held the commercial refrigeration components destined for installation in the basement kitchen, and that he did not see the debris or the pit before his accident. Given questions for fact raised by the testimony, the Labor Law § 241(6) cause of action remained viable.
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department unanimously reversed the trial court and reinstated the Labor Law § 200 and common-law negligence claims, finding an issue of fact as to whether those defendants were on notice that the illumination at the site was insufficient. Plaintiff also had presented evidence of constructive notice as to the uncovered pit, which, unlike the wood debris, was neither a transient nor latent condition; rather, its condition was clearly observable, as other trades had placed equipment and materials in it. Moreover, testimony in the record stated the pit was uncovered for at least two days.
Fundus v Scarola
March 14, 2023
Appellate Division, First Department
Plaintiff's coworker was supervising plaintiff and three other workers in removing a 12-foot-long steel beam during its dismantling of a movie set. Plaintiff testified that he saw the beam start spinning while it was in the process of being lowered, even though tag lines were being used for the purpose of preventing the beam from spinning, and that the beam struck him while he was attempting to stop it from spinning, so that it would not fall onto his coworkers. The trial court denied plaintiffs' motion for partial summary judgment on the Labor Law §§ 240(1) and 241(6) claims and granted defendant's motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims against it.
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s denial of plaintiff’s motion as issues of fact exist by the conflicting testimony of plaintiff and his coworker as to whether the accident was proximately caused by a failure to provide adequate safety devices to control the beam, or whether the sole proximate cause of the accident was plaintiff’s own unauthorized and admittedly dangerous conduct of moving under the beam while it was being lowered, before he lifted his head and was struck by the beam. The Court rejected plaintiff’s argument that he was not provided with adequate safety devices because he was not given a hard hat since a hard hat is not a safety device for purposes of Labor Law § 240(1).
PRACTICE POINT: Where credible evidence reveals differing versions of the accident, one under which defendants would be liable and another under which they would not, questions of fact should preclude summary judgment. Defendant in this case would not be subject to statutory liability if the jury determines that the sole proximate cause of the accident was plaintiff’s own unauthorized and dangerous conduct, moving under the beam while it was being lowered, before he lifted his head and was stuck by the beam.
Labor Law § 241(6) (TPW)
The First Department unanimously affirmed the trial court’s decision as to Labor Law 241(6) given the conflicting testimony as to whether the beam was spinning raised an issue of fact as to whether the accident was proximately caused by a violation of Industrial Code § 23-6.1(h), which provides that “[l]oads which have a tendency to swing or turn freely during hoisting shall be controlled by tag lines.” Contrary to defendant's argument for dismissing the Labor Law § 241(6) claim, the statute is not limited to building sites.
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed the trial court finding that Plaintiffs abandoned the Labor Law § 200 and common-law negligence claims by failing to oppose that part of its summary judgment motion. It declined to review the unpreserved arguments. The appellate court went on to find that the trial court properly dismissed the Labor Law § 200 and common-law negligence claims against the defendant, as plaintiffs never offered any proof that defendant actually exercised supervisory control over the work
PRACTICE POINT: It is critical to remember that there is a split in the Departments on whether it is necessary to actually exercise supervisory control over the means and manner of the injury producing work, or, if it is sufficient merely to have the authority to supervise, direct, or control the work. In the First, Third, and Fourth Departments, a defendant must exercise that authority. See Dennis v. Cerrone, 192 A.D.3d 1572 (4th Dep’t 2021); Pelonero v. Sturm Roofing, LLC, 175 A.D.3d 1062 (4th Dep’t 2019); Mooney v. BP/CG Center II, LLC, 179 A.D.3d 490 (1st Dep’t 2020); Lopez v. Dagan, 98 A.D.3d 436 (1st Dep’t 2012). In the Second Department simply having the authority is generally sufficient. See Moscati v. Consolidated Edison Co. of N.Y., Inc., 168 A.D.3d 717 (2d Dep’t 2019). See also, Reyes v. Sligo below, where the Second Department bases § 200 liability on the “authority to supervise or control the means and methods of the work”.
Shelton v Chelsea Piers, L.P.
March 14, 2023
Appellate Division, First Department
Plaintiff was allegedly injured while performing work at Chelsea Piers in Manhattan when a beam, which weighed over 2,000 pounds, fell on top of his arm. The trial court denied Vachris Engineering’s motion for summary judgment dismissing the second third-party complaint and all crossclaims as against it.
Indemnity Issues in Labor Law (BFM)
As Chelsea Pier L.P. was only vicariously liable under Labor Law § 240(1), it was permitted to seek common-law indemnification from a party whose negligence proximately caused plaintiff's injuries. The First Department affirmed the trial court’s denial of Vachris summary judgment dismissing Chelsea’s claims for common-law indemnification, as the record raised issues of fact as to whether Vachris, as Chelsea's project engineer, was actively negligent in, among other things, reviewing and approving a temporary pier support design, and whether its negligence proximately caused plaintiff's injuries.
However, the Court found that Chelsea's claim for contribution against Vachris should have been dismissed as Chelsea's liability to plaintiff was only vicarious under Labor Law § 240(1). The Court noted that plaintiff's Labor Law § 200 claim had already been dismissed as against Chelsea and no appeal had been taken therefrom. Therefore, the Court held that there could be no finding of negligence as against Chelsea.
Iuculano v City of New York
March 21, 2023
Appellate Division, First Department
Plaintiff had assisted his foreman and several coworkers in raising a set of vertical legs and a horizontal five beam to form one side of a sidewalk shed and then cleaned garbage and debris on the job site for 15 to 20 minutes, when the legs and five beam fell as the foreman and coworkers were attempting to move them and struck plaintiff. The trial court granted plaintiff's summary judgment motion under Labor Law § 240(1).
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s decision to grant plaintiff summary judgment. There are no issues of fact as to either the nonexistence (under plaintiff’s version of events) or inadequacy (under the foreman’s version of events) of the safety devices involved in plaintiff’s accident that would preclude summary judgment in plaintiff’s favor. Under plaintiff’s version, no safety devices were in place to afford proper protection against the legs and five beam failing and striking him as plaintiff’s foreman and coworkers attempted to reposition it. Under the foreman’s version, the braces that he said were being used to raise the legs and five beam clearly failed to afford plaintiff proper protection against their failing and striking him. That the foreman averred that the legs and five beam fell because one of the coworkers lost his grip is irrelevant, because people are not safety devices under Labor Law § 240(1).
PRACTICE POINT: The fact that the parties offered different versions of plaintiff’s accident makes no difference with respect to defendants’ liability under Labor Law § 240(1) because under either version, defendants failed to secure an area at a construction site from which a fall could occur, thereby, exposing the injured worker to an elevation-related risk. In this case, the braces that plaintiff’s foreman said were being used to raise the legs and five beam, failed to protect plaintiff against them falling and striking him. As a result, summary judgment properly was awarded.
Spero v 3781 Broadway, LLC
March 21, 2023
Appellate Division, First Department
Plaintiff was struck by a waterlogged plywood board, weighing 60 to 100 pounds. The board had been placed vertically on the floor to cover a doorless exterior door frame to keep the cold and windy weather from delaying the curing of newly installed clay tiles, and to prevent other trades from using the doorway and walking over the new tiles. The trial court granted plaintiff's motion for summary judgment on his Labor Law § 240(1) claim and denied the Broadway defendants’ cross-motion for summary judgment on their crossclaim for contractual indemnity from American Flooring.
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s decision to grant plaintiff summary judgment. The deposition testimony, photographic evidence and opinion of plaintiff’s safety expert established that the heavy plywood board constituted a load that required securing for purposes of the undertaking. Plaintiff’s expert opined that horizontally placed two-by-fours affixed to the doorframe could have been used as braces – a security device within the contemplation of Labor Law § 240(1) - to secure the plywood board. In opposition, defendants failed to raise a triable issue of fact.
PRACTICE POINT: This case is a great example of the application of the Court of Appeals case of Wilinski v 334 E. 92nd Hous. Dev., where the Court permitted a worker to assert a violation of Labor § 240 (1) from an injury caused by a falling object (pipe fell four feet before hitting plaintiff) whose base stood at the same level as the worker. As explained in Wilinski, and applied here, the heavy plywood board constituted “a load that required securing for purposes of the injury-producing work.”
Indemnity Issues in Labor Law (BFM)
The First Department affirmed the trial court’s denial of the Broadway defendants’ motion for summary judgment on its contractual indemnification claim against American Flooring. The Court noted that the Broadway defendants asserted that claim in their answer to American Flooring's cross claim for contractual indemnification, which had been asserted 30 months prior, and that depositions had already been completed by the time the Broadway defendants served their contractual indemnification claim against American Flooring. Moreover, the evidence demonstrated that the general contractor was solely responsible for the erection of the plywood board. Accordingly, the Court found that the indemnification language in American Flooring's subcontract, which limits its liability to its own negligent acts or omissions, or to those of another individual or entity for which it would be liable, had not been triggered.
Balbuena v 395 Hudson N.Y., LLC
March 30, 2023
Appellate Division, First Department
Plaintiff claims that she tripped and fell on uneven Masonite boards laid on the ninth floor of the building in which she was working as a cleaner. Hudson owned the building, and its property manager retained MBI to perform renovation work on the ninth floor. As part of its work, MBI placed Masonite boards on the hallway floor to protect the carpeting. Plaintiff was employed by Collins, which provided janitorial services to the building. According to plaintiff, shortly before the accident, an individual who she thought was a construction worker directed her to clean up construction debris. A security guard employed by defendants, however, testified that plaintiff tripped while following him down the hall towards an office area, after he told her that office garbage had not been collected.
The trial court granted MBI’s motion for summary judgment seeking dismissal of the Labor Law § 241(6) claim against it, granted Hudson’s motion for summary judgment seeking dismissal of the he Labor Law §§ 241(6), 200, and common-law negligence claims, and denied MBI’s motion for summary judgment dismissing the § 200 and common-law negligence claims.
Labor Law § 241(6) (TPW)
The First Department unanimously affirmed the trial court’s dismissal of the Labor Law § 241(6) claim. Plaintiff claimed that she tripped and fell on uneven Masonite boards laid on the ninth floor of the building in which she was working as a cleaner. As plaintiff was not engaged in construction work, she was not a protected worker under the statute and therefore not entitled to the protections of the Labor Law.
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed the trial court, finding it correctly denied MBI's motion for summary judgment because MBI, as the entity that placed the boards on the floor, failed to show that it did not create the dangerous condition that caused plaintiff's injuries. Because the accident arose from a defective premises condition, not the means and methods of the work, whether it was MBI or Collins that was supervising plaintiff's work at the time of the accident was irrelevant. Further, the protection afforded under Labor Law § 200 is not limited to those injured in the performance of construction work and is therefore broader, encompassing Plaintiff. The First Department reversed the trial court’s finding that Hudson's summary judgment motion should have been denied because while Hudson’s property manager testified that he conducted daily inspections of the floor where construction was being performed, it failed to make out a prima facie case that it did not have actual or constructive notice of the boards' misleveled edges.
Melendez v 1595 Broadway LLC
March 30, 2023
Appellate Division, First Department
Plaintiff allegedly was injured when the unsecured extension ladder that he was using to descend from a sidewalk bridge slid and collapsed under him. The trial court denied plaintiff's motion for summary judgment on the Labor Law § 240(1) claim as to 1595 Broadway and Triple C Builders (collectively “defendants”).
Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court and granted plaintiff’s motion. Plaintiff established that his injuries were proximately caused by a violation of the statute through his testimony and there were seven witnesses to his accident. In opposition, the Court held that defendants failed to raise a triable issue of fact as to whether plaintiff was the sole proximate cause of his injuries. Because the ladder was set up for use by another coworker, any failure by plaintiff to check its locking mechanism or to ascertain that it was tied off amounts to comparative negligence.
PRACTICE POINT: The failure to properly secure a ladder to ensure it remains steady and erect while being used constitutes a violation of Labor Law § 240(1). Remember, comparative negligence is not a defense to a § 240(1) claim. In this case, plaintiff’s failure to ask his coworkers to hold the ladder while he worked did not constitute the sole proximate cause of the accident, since a coworker is not a safety device contemplated by the statute.
Ortega v Fourtrax Contr. Corp.
March 1, 2023
Appellate Division, Second Department
Plaintiff was allegedly injured while working for Top Remodeling, a subcontractor hired by Fourtrax to perform drywall installation, taping, and spackling at a construction site. On the date of the accident, plaintiff and his coworkers were using a dolly to transport sheetrock across the floor, when the dolly and the sheetrock tipped over and fell onto the plaintiff. The trial court granted defendants' motion for summary judgment dismissing Labor Law § 240(1) claim and denied plaintiff's motion for summary judgment on same claim.
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s decision to dismiss plaintiff’s claim because defendants established that plaintiff’s injuries were not caused by an elevation-related or gravity-related risk within the scope of Labor Law § 240(1).
PRACTICE POINT: This is a great example of a falling object with no significant elevation-related hazard. Plaintiff was pushing the sheetrock across a level floor. The fact it fell off the dolly, in and of itself, does not trigger the extraordinary protections of § 240(1).
Balfe v Graham
March 8, 2023
Appellate Division, Second Department
Plaintiff was injured while installing ductwork in the basement of a residential construction site when he allegedly stepped backwards into a hole that had been cut out of the basement’s concrete floor to allow for installation of an ejector pump. The trial court granted Old World’s summary judgment motion dismissing the Labor Law § 240(1) claim.
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s dismissal of this claim because plaintiff’s accident was not the result of an elevation-related hazard encompassed by Labor Law § 240(1) (see Miller v Weeden, 7 AD3d 684, 685-686 [2d Dept 2004]). In opposition, the Court held that plaintiff failed to raise an issue of fact.
PRACTICE POINT: The Court cites a 2004 case, wherein the injured worker stepped into an uncovered hole that was two feet wide by three feet deep. He was not working on a ladder or at an elevated job site. Because the worksite was at ground level, the court held that scaffolding, hoists, ladders, and other protective devices required under Labor Law § 240(1) were inapplicable. A hole of those dimensions does not present an elevation-related hazard to which the protective devices enumerated therein are designed to apply, just like the hole that had been cut out in this case for the installation of an ejector pump.
Mora v 1-10 Bush Term. Owner, L.P.
March 15, 2023
Appellate Division, Second Department
Plaintiff was allegedly injured when he fell from a ladder while performing demolition work at a building owned by defendant. At the time of the accident, plaintiff was employed by Superior. The trial court granted plaintiffs' cross-motion for summary judgment under Labor Law § 240(1).
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s decision. Defendant submitted a written statement of Superior’s foreman, wherein he indicated that the subject pipe fell because plaintiff failed to follow the foreman’s instructions, that there was “another man holding the ladder” at the time the accident occurred, and that plaintiff “lost his balance on the ladder and fell to the ground.” However, the written statement was unsworn and not in admissible form. Therefore, the Court held the statement was insufficient to raise a triable issue of fact as to how the accident occurred and whether plaintiff’s actions were the sole proximate cause of the accident. Moreover, although the deposition testimony of Superior’s principal contained similar statements, those constitute hearsay, as they were based on a conversation with Superior’s foreman, and there is no evidence in the record indicating that the foreman was a witness to the accident.
PRACTICE POINT: A defendant may defeat plaintiff’s motion for summary judgment only if there is a plausible view of the evidence – enough to raise a question of fact – that there was no statutory violation and that plaintiff’s own acts or omissions were the sole cause of the accident. Although hearsay evidence may be considered in opposition to a motion for summary judgment, such evidence alone is insufficient to defeat the motion. Here, the only evidence to oppose plaintiff’s motion was hearsay, so defendant lost.
Ragoonanan v 43-25 Hunter, LLC
March 15, 2023
Appellate Division, Second Department
Plaintiff was allegedly injured at a worksite when he fell from scaffolding that collapsed. At the time of the accident, plaintiff was employed by a subcontractor. 43-25 Hunter owned the worksite, and Hunter G.C. was the general contractor for the project. On April 23, 2019, plaintiff filed a note of issue, which indicated there was outstanding discovery, including conducting a deposition of defendants’ representative, the general superintendent for Hunter (“Cavanagh”), who was deposed on August 21, 2019. On October 23, 2019, plaintiff moved to extend his time to move for summary judgment, and then, for summary judgment under Labor Law § 240(1); however, it was removed from the calendar in error. Plaintiff moved again in February 2020, and the trial court denied his motion.
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s denial of plaintiff’s motion because he failed to demonstrate that the outstanding deposition of Cavanagh was essential to his motion for summary judgment. While plaintiff argued that he needed to conduct the deposition to confirm the status of defendants as owner of the worksite and general contractor respectively, those facts were not in dispute. Moreover, even following the completion of the deposition, plaintiff did not promptly seek an extension and failed to articulate any reason for his delay of two months in moving for summary judgment after the deposition.
PRACTICE POINT: Pursuant to CPLR § 3212(a), unless the court directs otherwise, a motion for summary judgment shall be made no later than 120 days after the filing of the note of issue, except with leave of court on good cause shown. Absent a satisfactory explanation for the untimeliness, constituting good cause for the delay, an untimely summary judgment motion must be denied without consideration of the merits. While significant outstanding discovery may, under certain circumstances (not presented in this case), constitute good cause for the delay in making a motion, once the movant obtains the relevant discovery, he or she will only have good cause for such a delay if that party promptly moves for summary judgment after securing such discovery, which plaintiff failed to do here.
Jin Kil Kim v Franklin BH, LLC
March 22, 2023
Appellate Division, Second Department
Plaintiff, while acting in the course of his employment for nonparty WHC, was allegedly injured when he was struck by a falling bag of tile cement mix at a construction site. The accident occurred during a renovation project in a portion of a building owned by Franklin and leased to Essen. Essen hired WHC to renovate and buildout the entire first floor and basement of the building. The trial court denied Essen’s motion for summary judgment dismissing the Labor Law § 240(1) claim.
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s decision to deny Essen’s motion because defendants’ submissions failed to eliminate triable issues of fact as to how the alleged accident occurred and whether plaintiff’s injuries resulted from the type of hazard contemplated by Labor Law § 240(1). Since defendants failed to meet their burden, the Court declined to address the sufficiency of the opposition papers.
PRACTICE POINT: Summary judgment is not appropriate if the moving party’s own submissions raise triable issues of fact as to whether defendants were obligated to provide appropriate safety devices of the kind enumerated in Labor Law 240(1) and whether, in this case, the bag of tile cement mix fell due to the absence or inadequacy of an enumerated safety device.
Reyes v Sligo Constr. Corp.
March 29, 2023
Appellate Division, Second Department
Plaintiff, a construction worker, was allegedly injured when he bent over to pick up debris inside the house and a piece of wood became dislodged from a wall and struck him in the head during the partial demolition of a house. The trial court granted Equity’s motion for summary judgment seeking dismissal of the Labor Law § 241(6) claim. against it, granted the motions of Sligo and Big Moose for summary judgment dismissing Labor Law §§ 241(6) and 200 claims; and denied plaintiff's cross-motion for summary judgment on the Labor Law § 200 claim against Sligo.
Labor Law § 241(6) (TPW)
The Second Department affirmed in part and modified in part the trial court’s decision on the Labor Law § 261(6) claim. The Court affirmed those branches of defendants' motions seeking dismissal of the Labor Law § 241(6) claim predicated on violations of 12 NYCRR 23-1.7(a)(1), 23-3.3(b)(3), and 23-3.3(c). Defendants established the worksite was not a place that is "normally exposed to falling material or objects", and plaintiff's alleged injury was "caused by the actual performance of demolition work" and was not the result of any structural instability. Plaintiff failed to raise any triable issue of fact.
However, the Court held the trial court should have denied those branches of defendants' motions predicated on a violation of 12 NYCRR 23-1.8(c)(1). To prevail on a Labor Law § 241(6) claim based on a violation of 12 NYCRR 23-1.8(c)(1), plaintiff must establish that the job was a hard hat job, and that plaintiff's failure to wear a hard hat was a proximate cause of his or her injury. Here, defendants failed to establish that the demolition work associated with the house renovation was not a hard hat job, and that plaintiff's lack of head protection did not play a role in the injuries he sustained when he was struck in the head by a piece of wood. Defendants' motions should have been denied without regard to the sufficiency of the plaintiff's opposition papers.
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed the trial court’s decision to dismiss the Labor Law §200 and common law negligence claims, finding that Sligo and Big Moose established that the authority of the general contractor extended only to overseeing the progress of the work and maintaining the right to fire a subcontractor, which is insufficient to maintain a Labor Law § 200 cause of action. The affidavit of Sligo confirmed that they told the subcontractors on the project only the schedule and sequence of work that needed to be performed, not how to perform the work. In opposition, the Court held that plaintiff failed to raise a triable issue of fact. For the same reasons, the Court held the trial court properly denied plaintiff's cross-motion for summary judgment on this claim.
PRACTICE POINT: As discussed above, rhere is a split in the Departments whether one must exercise supervisory control over the manner of the work or merely possess the authority to do so. In the Second Department, as demonstrated by this case, having the authority can be enough, but the defendants were able to demonstrate that they did not even have such authority.
 New York Industrial Code Regulations (EDA)
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Note from David R. Adams:
