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Erby v 36 LLC
April 1, 2021
Appellate Division, First Department
Plaintiff was standing on the fourth rung of an A-frame ladder, which he set up on a solid and clean part of the floor and had been using without incident, directly under an air-conditioning unit. While attempting to follow his foreman’s instructions by connecting a “canvas” device to air-conditioning duct work, the unit fell onto his head, causing him to fall off the ladder. The unit had recently been installed by plaintiff's employer as part of its work on the project and was not part of the pre-existing building structure as it appeared before the project began.
Plaintiff testified that two of the rods from which the unit was hanging detached from the concrete ceiling, causing one end of the unit to drop, while the other end of the unit remained attached to the ceiling by two bent rods. The trial court granted defendants' motion for summary judgment dismissing the Labor Law § 240(1) claim.
 Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court and denied defendants’ motion, finding an issue of fact as to whether the air-conditioning unit constituted a falling object that was required to be secured for the purposes of the undertaking. The Court also found issues of fact as to whether the ladder provided proper protection to plaintiff under Labor Law § 240(1), or whether he should have been provided with a different safety device such as a scaffold with safety railings to prevent him from falling (see, e.g., Higgins v TST 375 Hudson, L.L.C., 179 AD3d 508 [1st Dept 2020]).
PRACTICE POINT: This is a good example of a case involving both a “falling object” and a “falling worker.” In such cases, either, or both, can form the basis for liability under § 240(1). Therefore, both must be carefully analyzed.
Gallina v MTA Capital Constr. Co.
April 1, 2021
Appellate Division, First Department
Plaintiff was injured by materials he alleges were stored in a passageway, making them tripping hazards. Defendants contended that plaintiff’s accident occurred in a storage room, unconnected to the ongoing construction. Defendants own site safety manager, who walked the site daily, testified that he did not know of the existence of a material storage room, testifying instead that there were materials kept throughout the site, hoisted through street level holes to various points on the site. The trial court granted defendants’ summary judgment motion dismissing the Labor Law § 241(6) claim insofar as premised upon a violation of Industrial Code (12 NYCRR) § 23-1.7(e)(1) and denied the motion with respect to Industrial Code § 23-1.7(e)(2).
 Labor Law § 241(6) (TPW)
The First Department unanimously modified and reinstated Industrial Code section 23-1.7(e)(1) pertaining to tripping hazards in “passageways.” The court noted that, considering the vague and inconsistent testimony in the record, it could not be determined as a matter of law that the area of plaintiff's fall was not a passageway. The court otherwise affirmed the lower court’s decision with respect to Industrial Code § 23-1.7(e)(2), holding that plaintiff may have been subject to a tripping hazards in “working areas” as defined therin.
Ging v F.J. Sciame Constr. Co., Inc.
April 1, 2021
Appellate Division, First Department
Plaintiff was standing on a structural steel tube, which measured approximately 20-feet long by 6-inches wide, on the third floor of what was to be a theater, approximately 10-to-12 feet above the second floor, when, while receiving a piece of decking from a coworker, the steel tube suddenly shifted, causing him to fall backward onto a perpendicular tube on the same level. Plaintiff had a safety harness and lanyard at the time of his accident but did not have a place to tie off. He only prevented himself from falling off the tube by hooking his feet onto it. Sciame was the construction manager for the work and subcontracted the structural steel work to Koenig. Koenig, in turn, sub-subcontracted the steel erection work to Atlantic, which employed plaintiff at the time of his accident.
The trial court (1) granted plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim as against Sciame, and denied those branches of Sciame’s, Koenig, and Atlantic (together with Sciame and Koenig, defendants) separate motions for summary judgment dismissing that claim, (2) granted that branch of Sciame’s motion on its third-party claim against Koenig for contractual indemnification to the extent of awarding Sciame conditional contractual indemnity against Koenig to the extent that plaintiff's damages exceed the limits of the insurance coverage afforded by Koenig's insurer, and denied those branches of Koenig's and Atlantic's motions for summary judgment dismissing that claim, and (3) granted Koenig's motion on its third-party crossclaim against Atlantic for contractual indemnity to the extent of awarding Koenig contractual indemnity against Atlantic for expenses and attorneys' fees and conditional contractual indemnity against Atlantic for any judgment, mediation or arbitration award or settlement against or by Koenig, and denied Atlantic's motion to dismiss that claim,
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed summary judgment in favor of plaintiff, as his testimony established his prima facie entitlement to judgment on his Labor Law § 240(1) claim. Defendants could not rely on unsworn emergency room records to raise an issue of fact as to the manner in which plaintiff’s accident occurred. Nor did defendants lay the proper foundation to use the accident report that contained inadmissible hearsay as a business record. The other documents relied upon by defendants did not actually controvert plaintiff’s account of the accident. Therefore, the Court held they were insufficient to raise a triable issue of fact.
PRACTICE POINT: Courts consistently find that § 240(1) applies where a worker was injured in the process of preventing himself from falling. Courts also routinely reject inconsistent statements in plaintiff’s unsworn hospital records as to how the accident occurred, because such statements typically are not germane to plaintiff's diagnosis and treatment. Finally, if you submit an accident report in support of your summary judgment motion, make sure it is in admissible form, or you at least provide an excuse the failure to do so.
 Indemnity Issues in Labor Law (BFM)
Koenig's contract with Sciame obligated Koenig to indemnify Sciame for all claims which “arise out of or are connected with ... the performance of” that contract. Since the plaintiff's accident arose out of his work for Atlantic, with which Koenig sub-subcontracted to perform, plaintiff's accident necessarily arose out of the work that Sciame subcontracted with Koenig to perform, thus triggering Koenig's contractual duty to indemnify Sciame. The First Department found that the trial court properly conditioned its award to Sciame of contractual indemnification against Koenig on plaintiff's damages exceeding the limits of Koenig's insurance policy (which was also insuring Sciame), so as not to run afoul of the antisubrogation rule.
Koenig's agreement with Atlantic required Atlantic to indemnify Koenig for “all claims ... and expenses, including but not limited to attorneys' fees arising out of or resulting from the work of [Atlantic], provided any such claim ... or expense ... is caused in whole or in part by any act or omission of [Atlantic] or anyone directly or indirectly employed ... by it.” The Court held that regardless of whether “any negligence on Atlantic's part contributed to plaintiff's accident, its duty to indemnify [Koenig for attorneys' fees and expenses] under the agreement was triggered by the fact that the accident arose from [plaintiff's] performance of his work as an employee of [Atlantic]”
Atlantic's indemnification agreement with Koenig only required Atlantic to indemnify Koenig “for any judgment, mediation or arbitration award or settlement [against or by Koenig] ... to the percentage of negligence of [Atlantic] or anyone directly or indirectly employed by it or anyone for whose acts it may be liable in connection to such claim ... and expense.” Since Koenig was not the sole proximate cause of the underlying claim and there has not yet been a determination of the extent of Atlantic's negligence, Koenig was properly awarded conditional contractual indemnification against Atlantic.
Herrero v 2146 Nostrand Ave. Assoc., LLC
April 1, 2021
Appellate Division, First Department
Plaintiff allegedly was injured when the platform of a baker’s scaffold fell through its framework, causing him to fall four feet to the ground. He was using an unidentified contractor’s scaffold, instead of one made readily available by his employer, JD Consulting. To date, no one admitted ownership of the scaffold. The trial court granted plaintiff’s motion for partial summary judgment under Labor Law § 240(1), denied the motions of 2146 Nostrand, ACHS Management’s, 49th Broadway’s d/b/a Dallas BBQ, and Nostrand Enterprises (collectively the Nostrand Defendants) to dismiss the complaint and all crossclaims, counterclaims, and third-party claims against them and on their contractual indemnification claims against JD Consulting, Shawmut, and Trison, and denied Shawmut’s cross-motion for summary judgment dismissing the complaint as against it and on its claim for contractual indemnity against JD Consulting.
Labor Law § 240(1) (MAS)
The First Department affirmed the trial court’s decision to grant plaintiff partial summary judgment, as the record demonstrated that plaintiff was not the sole proximate cause of his accident. Although plaintiff decided to use the scaffold of an unknown contractor, instead of one from his employer, JD Consulting, which he knew was readily available, there is no evidence that he “knew he was expected to use” only JD Consulting’s scaffolds (Biaca-Neto v Boston Rd. II Hous. Dev. Fund Corp., 34 NY3d 1166, 1167-68 [2020]).
PRACTICE POINT: Remember, to establish a sole proximate cause defense, such that a defendant has no liability under Labor Law § 240(1), it must prove plaintiff: (1) had adequate safety devices available; (2) knew both that the safety devices were available and that he or she was expected to use them, (3) chose for no good reason not to do so, and (4) would not have been injured had he or she not made that choice. Here, defendants failed to show that plaintiff knew that he was expected to use only scaffolds from his employer.
 Labor Law § 200 and Common-Law Negligence (ESB)
The First Department held, initially, that liability in this case could turn either on “means and methods” or a “dangerous condition on site,” or both. While plaintiff’s use of a scaffold belonging to another contractor relates to the means and methods of his work, which JD Consulting had authority to remedy, the presence of a defective scaffold onsite, which was usable, constituted a dangerous condition that the property owner and general contractor may have had authority to remedy. Plaintiff only argued on appeal that ACHS (the property manager) and Shawmut (the general contractor) were liable under § 200 and common-law negligence.
Regarding ACHS, the Court reversed denial of its MSJ, holding ACHS was not liable under either the “means and methods” or “dangerous condition” theories of liability because it neither had authority to control plaintiff’s work nor created or had notice of the dangerous condition.
Shawmut also could not be held liable under the means and methods theory, because it only had general supervisory authority over the site, which is insufficient to demonstrate control over plaintiff’s work. However, the Court found an issue of fact as to Shawmut's liability under the “dangerous condition” theory, as it had authority to control site safety, including the safety of the equipment on site, and a factual issue existed as to whether it had actual or constructive notice of the dangerous condition and could have remedied it. Shawmut’s representatives testified that Shawmut had general safety standards that applied to all projects and subcontractors. Although Shawmut's subcontractors were responsible for inspecting their own scaffolds, Shawmut also performed visual inspections to make sure the equipment appeared safe. In addition, Shawmut’s superintendent was onsite daily, performed daily walkthroughs to look for safety hazards, and had the authority to remove any unsafe equipment from the floor. Moreover, the superintendent admitted the lack of a factory platform on a scaffold was discoverable upon visual inspection. Accordingly, Shawmut was not entitled to summary judgment.
Indemnity Issues in Labor Law (BFM)
The First Department found the Nostrand Defendants to be free from active negligence and that there was no proof of any contracts that imposed obligations on them. As such, all cross claims, counterclaims, and third-party claims against them for contribution/common-law indemnification, contractual indemnification, and breach of contract should have been dismissed. Because they were free from active negligence, the Nostrand Defendants were entitled to unconditional summary judgment on their contractual indemnification claim against JD Consulting under the Shawmut/JD Consulting subcontract.
As issues of fact existed as to its negligence, Shawmut was entitled to conditional summary judgment on its contractual indemnification claim against JD Consulting.
Only Nostrand Enterprises was determined to be entitled to summary judgment on the contractual indemnification claim against Shawmut, because it was the only one of the Nostrand Defendants that was an indemnitee under its general contract with Shawmut.
Although they were free from active negligence, the Nostrand Defendants were not entitled to conditional summary judgment on their contractual indemnification claim against Trison, because the indemnification clause in the Shawmut/Trison Site Access Agreement was not triggered, and any claim that Trison owned the ladder was speculative.
Hammer v ACC Constr. Corp.
April 6, 2021
Appellate Division, First Department
Plaintiff allegedly tripped on a loop of electrical wire. The general contractor, ACC’s construction superintendent coordinated the work areas, which included checking the rooms in the morning before work began to ensure that they were ready for trades to work there. While the superintendent testified that Godsell was not to work in the room where the accident occurred until the Premier electricians finished their work, there was also testimony in the record that he had directed plaintiff, Godsell's general foreman, to get Godsell’s work in that room done.
The trial court granted defendants ACC, 370 Seventh Avenue’s, and Comscore’s (owner defendants) motion for summary judgment dismissing the Labor Law § 241(6) claim premised on Industrial Code § 23-1.7(e)(2) as well as the Labor Law § 200 and common-law negligence claims against ACC, denied their summary judgment motion on their crossclaims against Premier and their claims against Godsell for common-law and contractual indemnification and breach of contract for failure to procure insurance, and denied their motion for leave to amend Comscore's answer to assert a crossclaim for contractual indemnity against Premier.
Labor Law § 241(6) (TPW)
The First Department affirmed the lower court’s grant of summary judgment on the Labor Law § 241(6) claim based on Industrial Code 12 NYCRR § 23-1.7(e)(2), as the loop of electrical wire on which plaintiff tripped was deemed to be an integral and permanent part of the construction project itself.
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department reversed the trial court’s decision dismissing the Labor Law § 200 and common-law claims as against general contractor ACC. It found evidence that ACC's construction superintendent coordinated the work areas, which included checking the rooms in the morning before work began, to ensure that they were ready for trades to work there. Further, while the superintendent testified that Godsell was not to work in the room where the accident occurred until the Premier electricians had finished their work there, there was also testimony that he had directed plaintiff, Godsell’s general foreman, to get Godsell’s work done in that room. Accordingly, there was a question of fact regarding ACC’s direction and control of the “means and methods” of the work.
Indemnity Issues in Labor Law (BFM)
As issues of fact existed as to its negligence, ACC was not entitled to summary judgment on its contractual or common-law indemnification claims against Premier or Godsell.
Cresser v 345 Park Ave., L.P.
April 15, 2021
Appellate Division, First Department
Plaintiff, while at the work site to perform work for Antovel Gelberg, allegedly tripped over a raised floor installed by Erath & Son. The trial court denied the motion of JT Magen and NFL Enterprises for summary judgment dismissing the Labor Law § 241(6) claim as against them predicated on Industrial Code § 23-1.7(e)(1) and the Labor Law § 200 claim as against JT Magen, and on their contractual indemnification claims against Antovel and William Erath.
Labor Law § 241(6) (TPW)
The First Department unanimously reversed and granted defendants’ motion for summary judgment dismissing the Labor Law § 241(6) claim predicated on Industrial Code § 23-1.7(e)(1). The court determined that, because the raised floor over which plaintiff tripped was integral to the work, the section was inapplicable.
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department reversed the trial court’s order denying JT Magen’s motion to dismiss the Labor Law § 200 claim, holding JT Magen was entitled to summary judgment because it did not direct or control the work of Erath.
Indemnity Issues in Labor Law (BFM)
Because the plaintiff tripped over the raised floor installed by Erath & Son, the First Department found that the accident arose from its acts in connection with performance of the work, triggering its indemnification obligation under its subcontract with JT Magen. Furthermore, since the plaintiff was injured while at the site to perform work for Antovel Gelberg, the accident arose from its acts in connection with the performance of the work, triggering its indemnification obligation under its subcontract with JT Magen.
Batlle v NY Devs. & Mgt., Inc.
April 22, 2021
Appellate Division, First Department
Less than a minute after starting to perform work, while standing on a scaffold platform without railings, the scaffold moved, and plaintiff immediately fell to the floor. He testified that a foreman ordered him to perform that work without railings, because the railings were being used by another company. However, another foreman testified that 20 to 60 minutes before the accident, he instructed plaintiff to stop performing the work, get off the scaffold, and obtain the railings, which allegedly were available. Deposition testimony indicated plaintiff, who required a Spanish interpreter, may not have fully understood the instructions given to him in English. The trial court granted plaintiffs' motion for partial summary judgment on Labor Law § 240(1) against defendants and denied defendants’ motion for summary judgment on their contractual indemnification claim against Big Apple.
Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court’s order and denied the motion, as the conflicting accounts raised issues of fact as to whether defendant “has no liability under Labor Law § 240(1)” because plaintiff “(1) had adequate safety devices available, (2) knew both that the safety devices were available and that [he was] expected to use them, (3) chose for no good reason not to do so, and (4) would not have been injured had [he] not made that choice.” However, the Court held there was no issue of fact with respect to the conflicting accounts as to whether or not plaintiff locked the scaffold’s wheels, because no one tested the scaffold after the accident to see if the wheels had been locked and whether the brakes were functioning.
PRACTICE POINT: Interesting decision, since the trial court granted plaintiff summary judgment but was reversed by the First Department on account of the conflicting versions of the accident and the sole proximate cause defense. One wonders whether the outcome would be the same if it was discovered, immediately after the accident, that the scaffold’s wheels were locked.
Indemnity Issues in Labor Law (BFM)
Defendants were entitled to summary judgment on their contractual indemnification claim against Big Apple, as the defendants established that they were free of negligence and did not exercise supervisory control over the activity that caused the injuries.
Cruz v Metropolitan Tr. Auth.
April 29, 2021
Appellate Division, First Department
Plaintiff and his coworker were standing on a berm consisting of loose dirt and debris which was supporting the water main they were attaching to beams overhead before excavation could continue. Headlamps enabled plaintiff’s coworker to see plaintiff’s face on the other side of the three-foot-wide water main, and to see a metal washer before it fell, while plaintiff could see where he was walking, and saw the washer slide down the berm after it fell. The trial court granted the Transit Authority defendants’ motion for summary judgment dismissing plaintiff’s Labor Law §§ 241(6), 200, and common-law negligence claims.
Labor Law § 241(6) (TPW)
The First Department unanimously affirmed the lower court’s grant of defendants’ Motion for Summary Judgment on Labor Law § 241(6) claim. The court concluded Labor Law § 241(6) claim premised upon 12 NYCRR 23-1.7(d) was properly dismissed as the berm consisting of loose dirt and debris on which plaintiff was standing did not constitute a ‘slippery condition’ as there was no “foreign substance which may cause slippery footing [to] be removed, sanded or covered” as contemplated by the Industrial Code section. Further, there was no evidence to establish that “that the amount of lighting fell below the specific statutory standard” per section 12 NYCRR 23-1.30, given testimony which confirmed that headlamps allowed plaintiff’s coworker to see plaintiff’s face on the other side of the three-foot-wide water main, plaintiff could see where he was walking, and he could see the metal washer before it fell.
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed dismissal of plaintiff’s Labor Law § 200 and common-law negligence claims. Although the testimony of plaintiff and his coworkers diverged on the details of whether the coworker slipped and knocked the washer down, the berm was part of, or inherent in, the very work being performed, i.e., supporting the water main that plaintiff and his coworker were bracing. Further, the muddy and slippery condition of the berm was readily observable. Accordingly, defendants could not be held liable as a matter of law.
PRACTICE POINT: This is an interesting case because it is not the typical “hazardous condition” case. Where, as here, a Plaintiff is confronted by a hazard inherent in or part of his work, which hazard is readily observable, no liability can arise. As the First Department previously held, [w]hen a worker confronts the ordinary and obvious hazards of his employment, and has at his disposal the time and other resources . . . to enable him to proceed safely, he may not hold others responsible if he elects to perform his job so incautiously as to injure himself. Bombero v. NAB Constr. Corp., 10 A.D.3d 170, 171 (1st Dept 2004).
Diaz v HHC TS Reit LLC
April 29, 2021
Appellate Division, First Department
Plaintiff, a concrete worker, was allegedly injured by metal conduit pipes that toppled onto his head and shoulders as he stood trying to pull a four-by-eight-foot plywood form out of a space between a scaffold and a large building support column. There is unrebutted evidence that the metal pipes, which were four inches in diameter and approximately 8 to 12 feet in length, were resting vertically, unsecured, against the column. The trial court granted plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim and SJ Electric’s cross-motion for summary judgment dismissing the complaint and the third-party complaint.
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed summary judgment in favor of plaintiff because, although his work did not involve the pipes, and there is no evidence that the concrete workers or defendants had any knowledge of the presence of the pipes in the area, the record demonstrates conclusively that the pipes were not adequately secured for the purpose of the undertaking, as required under Labor Law § 240(1).
PRACTICE POINT: In falling object cases, remember that plaintiffs are not required to show that the object which fell was being hoisted or secured when it fell; only that it should have been adequately secured, so as not to injure plaintiff as he performed his work.
Indemnity Issues in Labor Law (BFM)
The First Department held that dismissal of the third-party complaint seeking contribution and common-law and contractual indemnification was precluded by issues of fact as to whether the pipes belonged to SJ Electric.
Fritz v JLG Indus., Inc.
April 29, 2021
Appellate Division, First Department
Plaintiff was operating a JLG 1350 boom lift when it allegedly malfunctioned, collapsing with him inside and causing him and a co-worker to be propelled from the passenger compartment. Defendants MTA & TBTA denied ownership of the property where the accident took place, despite their admission to owning the property over eight years ago. MTA and TBTA moved for leave to amend the pleadings to correct this error and their experts determined the boom lift’s malfunction was caused by the two outer-mid retractor wire ropes failure and that United Rentals’ failure to properly inspect and detect the loose or slack outer-mid boom retract wire ropes led to the accident.
The trial court granted plaintiffs’ motions for summary judgment on the Labor Law § 240(1) claims against TBTA/MTA, denied JLG and United’s motions for summary judgment dismissing the complaints, crossclaims, and third-party complaint as against them, and denied as untimely TBTA/MTA’s cross-motion for summary judgment against JLG and United on the issue of common-law indemnification.
Labor Law § 240(1) (MAS)
The First Department affirmed, as any defect in the design of the boom lift that collapsed while plaintiffs were in its platform was not a superseding cause of the accident, relieving TBTA/MTA of liability under Labor Law § 240(1).
PRACTICE POINT: This case is a good example of a products liability claim which also involves a violation of Labor Law § 240(1), particularly where, as here, the platform upon which plaintiff was working collapsed.
Indemnity Issues in Labor Law (BFM)
The First Department determined that the trial court could have considered TBTA/MTA's untimely cross motion for summary judgment on its common-law indemnification claims against JLG and United, as both JLG and United had moved for summary judgment dismissing those claims. However, the Court found that no party was entitled to summary judgment as to those claims. Not only did issues of fact remain as to JLG's and United's liability, but TBTA/MTA failed to demonstrate that it was only vicariously liable to plaintiffs and was not actually negligent, especially since plaintiffs’ Labor Law § 200 and common-law negligence claims remained pending against it, and no one advocated for their dismissal.
Ping Lin v 100 Wall St. Prop. L.L.C.
April 29, 2021
Appellate Division, First Department
Plaintiff was allegedly injured when he fell from a six-foot, A-frame ladder. At his deposition, plaintiff testified he placed a piece of cut sheetrock on the ladder, which measured approximately two-by-four feet, and climbed to the fourth step, which was three or four feet off the ground. He placed the sheetrock against the ceiling beam with his left palm and reached 18 inches above his head. When he reached his right hand to his tool belt to retrieve his drill, he explained that his “left hand was holding [the] . . . sheetrock for too long . . . [and] got tired, so the sheetrock fell,” hitting the side of his head. He then dropped his drill to the ground and tried to grab the ladder with both hands but the ladder “shaked and moved” and fell. After hearing a loud bang, his supervisor found plaintiff lying on the floor with the collapsed ladder on plaintiff's left side, and a piece of sheetrock on the floor. The trial court denied plaintiff's motion for summary judgment as to liability under Labor Law § 240(1).
Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court and granted plaintiff’s motion for partial summary judgment under Labor Law § 240(1), because the undisputed facts establish that defendants violated the statute by failing to properly secure the ladder against movement or slippage and to ensure that it remained steady and erect. Defendants failed to guard against plaintiff’s risk of falling from a ladder while using one hand over his head to hold the sheetrock in place and the other hand over his head to operate a drill.
PRACTICE POINT: Since the Court held the ladder did not provide adequate protection, it is irrelevant that it appeared “very sturdy” to plaintiff as a plaintiff is not required to demonstrate that a ladder is defective in order to establish prima face entitlement to summary judgment under Labor Law § 240(1).
Torres v Triborough Bridge & Tunnel Auth.
April 29, 2021
Appellate Division, First Department
Plaintiff was employed by Defoe Corp., working on the roadway beneath the 125th Street off-ramp of the RFK Bridge. This project involved reconstruction and rehabilitation to the approach ramps of the bridge. Plaintiff “was caused to step on a piece of loose debris on an uneven ramp-like asphalt surface” and suffered personal injuries. Defoe Construction was retained under a contract by Triborough as the general contractor for this project. Plaintiff testified, “I was told to climb over the [Jersey] barrier, pass sheets of plywood over the barrier to my foreman (Felice Marie).” Plaintiff testified he climbed over the barrier with no trouble and passed the plywood to his foreman. He climbed back over this three-foot high Jersey barrier and testified, “I swinged [sic] my left leg over first and then I swing the right after, and my left ankle twisted, and I fell backwards. When I came back over the barrier, my ankle rolled as I put it down to the floor.” Torres testified that he observed debris on the left side of the barrier before climbing back over but he did not move it, sweep it, or pick it up before stepping down.
The trial court denied plaintiff's motion for summary judgment on his Labor Law § 241(6) claim and granted defendants’ cross-motion for summary judgment dismissing the claim.
Labor Law § 241(6) (TPW)
The First Department unanimously affirmed the dismissal of plaintiff’s Labor Law § 241(6) cause of action. As to Industrial Code 12 NYCRR § 23-1.7(e)(1), the court affirmed that the area where plaintiff fell did not constitute a passageway as contemplated by that section. Further, it also concluded that Industrial Code § 23-1.7(e)(2) was inapplicable given the demolition debris resulted directly from the ongoing work being performed, which plaintiff had been assigned to clean up, and thus constituted an integral part of that work.
Majerski v City of New York
April 7, 2021
Appellate Division, Second Department
Plaintiff, an employee of nonparty Adams European Construction, was allegedly injured when he fell from a ladder while working on a renovation project. He was on a ladder at the premises disassembling a sidewalk bridge which had already been partially dismantled the day before when a metal pipe detached from the sidewalk bridge and struck him in the knee, causing him to fall from the ladder. The trial court denied plaintiffs’ motion for summary judgment on the Labor Law §§ 240(1) and 241(6) claims.
Labor Law § 240(1) (MAS)
The Second Department affirmed, albeit on different grounds, as defendants failed to show that plaintiff’s motion was premature, and plaintiffs failed to establish their entitlement to summary judgment on the issue of liability due to an unsecure or defective ladder. The Court noted plaintiff's testimony that, immediately prior to the accident, he and his coworkers removed the roof, safety netting, and top beam from the sidewalk bridge, and all that remained of the disassembling of the sidewalk bridge was for plaintiff to remove the poles and crosses – diagonal pipes attached to the poles with nuts – one of which separated from the pole and hit his knee. Such testimony did not eliminate triable issues of fact as to how the accident occurred and whether, under the circumstances of this case, this was a situation where a securing device of the kind enumerated in the statute would have been necessary or even expected.
PRACTICE POINT: The parties’ submissions raised triable issues of fact as to whether defendants were obligated to provide appropriate safety devices of the kind enumerated in the statute to secure the metal pipe from detaching from the sidewalk bridge and whether it fell due to the absence of, or inadequacy of, an enumerated safety device.
Labor Law § 241(6) (TPW)
The Second Department found plaintiff failed to establish his entitlement to judgment as a matter of law on the cause of action alleging a violation of Labor Law § 241(6). Plaintiff failed to establish that the defendants violated Industrial Code 12 NYCRR § 23-3.3(b)(3), which governs the demolition of walls and partitions, or Industrial Code § 23-3.3(c), which mandates continuing inspections during hand demolition operations.
The court noted these provisions are intended to guard against hazards caused by structural instability resulting from the progress of the demolition and they do not apply to hazards caused by the actual performance of demolition work. Plaintiff’s testimony that, immediately prior to the incident, he had begun disassembling the sidewalk bridge and had removed the roof, safety netting, and top beam, failed to establish that his accident arose from structural instability caused by the progress of demolition, rather than from the actual performance of disassembling the sidewalk bridge.
Pereira v Hunt/Bovis Lend Lease Alliance II
April 28, 2021
Appellate Division, Second Department
Plaintiff was injured while she was working at the construction site of the Citi Field ballpark. The property was owned or leased by Queens Ball Park and Mets Development (together the property owners). The Hunt/Bovis defendants served as the construction manager for this project. Plaintiff allegedly fell while traversing the corrugated “Q-decking” surface of a “bridge” area of the stadium that connected two sections of the concourse. The defendant Five Star had laid or installed electrical cables in that area approximately one month prior.
The trial court denied plaintiff’s cross-motion which was for summary judgment on the Labor Law § 241(6) claim predicated upon 12 NYCRR 23-1.7(d) and (e), and granted the motion of defendants Hunt/Bovis, Queens Ball Park, and Mets Development, for summary judgment on the Labor Law § 241(6) claim predicated upon 12 NYCRR 23-1.7(d) against the construction managers and Queens Ball Park, and granted the cross motion of Five Star Electric for summary judgment dismissing the Labor Law § 241(6) predicated upon 12 NYCRR 23-1.7(d) insofar as asserted against it. The trial court also denied the cross-motion of Five Star for summary judgment dismissing the Labor Law § 241(6) claim predicated upon 12 NYCRR 23-1.7(e) and common-law negligence asserted against it, and for summary judgment dismissing the crossclaims asserted against it by the construction manager and Queens Ball Park. Upon reargument, the trial court vacated the determination in the prior order, denying the motion of the construction manager, Queens Ball Park, and Mets Development, which was for summary judgment dismissing the Labor Law § 241(6) predicated upon 12 NYCRR 23-1.7(e) against the construction manager, and Queens Ball Park Company, LLC, and granted that branch of the motion.
Labor Law § 241(6) (TPW)
As to the Labor Law § 241(6) cause of action, the Second Department modified the trial court’s decision. First, defendant Five Star was entitled to judgment as a matter of law dismissing the Labor Law § 241(6) causes of action as Five Star established, prima facie, that it was not an “agent” of the owner or general contractor, as it lacked the authority to supervise and control the work that allegedly brought about the injury. Without a showing that it had the authority to supervise and control the work, a party cannot be a proper Labor Law defendant.
However, the construction manager and Queens Ball Park were not entitled to summary judgment dismissing the Labor Law § 241(6) causes of action predicated upon 12 NYCRR 23-1.7(d) and (e). These defendants were unable to eliminate triable issues of fact as to whether the surface upon which Rowan was walking at the time of the accident constituted a wet or slippery condition that was a proximate cause of the occurrence. Further, these defendants were unable to show as a matter of law that this incident was not causally related to the presence of debris, materials, or sharp projections in a passageway or work area, or that the condition in question was “integral” to the work performed.
Likewise, the same triable issues of fact precluded plaintiff from summary judgment on 12 NYCRR 23-1.7(d) and (e) given the question whether there were violations of those provisions, which were a proximate cause of the accident.
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department reversed the trial court’s denial of Five Star’s motion as to common-law negligence. It held, Five Star demonstrated it did not supervise or control the manner of work performed and did not create the dangerous condition that is alleged to have caused the injury. In opposition, Plaintiff failed to raise a triable issue of fact.
Indemnity Issues in Labor Law (BFM)
As Five Star established that it was not negligent and did not have the authority to direct, supervise, or control the work giving rise to the injury, and no triable issues of fact were raised in opposition to that showing, it was entitled to summary judgment dismissing the cross claims for common-law indemnification and contribution asserted against it by the construction manager and Queens Ball Park.
Five Star also was entitled to summary judgment dismissing the cross claim for contractual indemnification asserted against it by the construction manager and Queens Ball Park as the relevant contract required Five Star to indemnify those defendants for claims “arising out of” its work at this project. Five Star demonstrated that this occurrence did not “arise out of” its work at the project, and no triable issues of fact were raised in opposition to that showing.
Soczek v 8629 Bay Parkway, LLC
April 28, 2021
Appellate Division, Second Department
Plaintiff was injured when he fell from an extension ladder while working on a building undergoing renovation. He was provided with a ladder that lacked rubber feet and the ladder allegedly slid on the concrete surface on which it had been placed, causing the plaintiff to fall. The trial court granted plaintiffs’ summary judgment motion on the Labor Law § 240(1) claim.
Labor Law § 240(1) (MAS)
The Second Department affirmed as plaintiffs established, prima facie, that he was provided with a ladder that lacked rubber feet and it slid on the surface upon which it had been placed. In opposition, defendant failed to raise a triable issue of fact, including as to whether plaintiff’s conduct was the sole proximate cause of the accident.
PRACTICE POINT: A plaintiff is entitled to summary judgment where his or her proof demonstrates that the ladder failed to afford proper protection for the work being performed, and that this failure was a proximate cause of the accident.
Lacey v Lancaster Dev.
April 30, 2021
Appellate Division, Fourth Department
Plaintiff allegedly slipped and fell in concrete slurry while working on a construction site. Lancaster had set up a designated washout areas to contain the slurry and prevent it from creating a hazardous condition on the work site. Lancaster employees oversaw the pouring and finishing of concrete in that area, directed Saunders’s delivery drivers when they arrived on site, and, upon the completion of the drivers’ work, were responsible for directing them to the designated washout areas. The trial court granted the motion of Saunders Concrete for summary judgment dismissing the complaint and denied, in part, the motion of defendants Lancaster and Tully Construction for summary judgment dismissing the complaint against them.
Labor Law § 200 and Common-Law Negligence (ESB)
The Fourth Department reversed the trial court’s decision granting Saunders’s motion for summary judgment, even though plaintiff abandoned any opposition to dismissal of the Labor Law § 200 cause of action. It held, even where Labor Law § 200 does not apply because a defendant lacked the authority to supervise and control plaintiff’s work or the work site, a defendant may be held liable for negligence where the work it performed created the condition that caused the plaintiff's injury. Here, the Court found a question of fact regarding whether Saunders created the concrete slurry in which the plaintiff allegedly fell. Witnesses testified that plaintiff slipped in the slurry. Lancaster set up designated washout areas to contain the slurry and prevent it from creating a hazardous condition on the work site, but witnesses claimed Saunders employees routinely failed to comply with that protocol, causing slurry to be deposited by the roadside. Further, although the concrete near the accident site had been poured seven days before the incident, witnesses testified that slurry takes up to five days to harden in dry weather and longer if it rains. Therefore, there was a triable issue of fact as to Saunders.
Regarding Lancaster, the Fourth Department affirmed denial of its motion. Because the accident was alleged to have occurred as a result of a dangerous condition on the premises, Lancaster was required to establish either that it lacked control over the area where she was injured or that it lacked actual or constructive notice of the dangerous condition. The Court found, however, that Lancaster’s own submissions demonstrated questions of fact as to control and notice. Lancaster employees oversaw the pouring and finishing of concrete in that area, directed Saunders’s delivery drivers from the moment they arrived on site, and, upon the completion of the drivers’ work, were responsible for directing them to the designated washout areas. Further, Lancaster maintained a continuing presence in the area of the accident through the date of the accident. Finally, one witness testified that she walked through the area where plaintiff fell earlier in the day, observed slurry in that location, and almost slipped in it, giving rise to a question as to constructive notice. Consequently, Lancaster’s motion properly was denied.
New York Industrial Code Regulations - (EDA)
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