Back to Top

Labor Law Pointers - Volume X, No. 6

 
 

Labor Law Pointers

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

Volume X, No. 6
Wednesday, May 5, 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 Labor Law and Risk Transfer issues.
 
I hate to start our monthly newsletter with sad news, but today I have no option. With the Canadian border closed, Dan Kohane and I, along with many of our friends, have not been able to visit our cottages on the Canadian shore of Lake Erie for over a year, with no real end in sight. For those of you not familiar with the Western New York area, simply looking out my window and across the lake, I can see my cottage. Dan’s is blocked by the courthouse, or I could see it as well. A steady presence in my life for many, many summers has been a cold bottle of Molson Stock Ale; the original “Blue,” brewed since 1908, long before that “other” Canadian beer company started making their “so-called” Blue. The closing of the border is not able to stop the tragic news that, it appears, Molson has ceased production of Stock Ale. Those of us trapped here in Buffalo are in mourning, and unable to even purchase a final farewell beer to enjoy, as it is not sold in the U.S. While far too many have had much more severe losses during COVID, I feel this one today.
 

As we move into spring, and hopefully some travel options, it is a perfect time to remind everyone about our training opportunities. With the prospect of some in-person meetings scheduling for the summer, this is just a reminder that we are available to offer training for your group, live, whenever, and wherever your meetings will be. We will of course still continue to offer webinars and online training, but the in-person option offers so much more interaction and case-specific questions, which we believe allows for better training, more retention, not to mention having the answer to a puzzling case. Just drop me a line. As always, we have specific seminars available on any topic Labor Law or Risk-Transfer related.
 
We also have a training program on opportunities for early claims resolution, which has been popular over the years where we take the timeline of a case and discuss, in a collaborative way, and usually with a claims professional on our panel, where and when the best opportunities exist, and how to best prepare for and utilize them. H&F also offers seminars on a vast range of other topics including coverage, transportation, CVA, hospitality, premises, products liability and many more. Just let us know, we are here to help.
 
Next in our line of monthly articles and webinars is an article from Eric Andrew about the practical hazards of negotiating and effectuating settlements in the age of COVID. Click here for the article.  I am old enough to remember when the difficult part of a negotiation was to arrive at the settlement figure, not the appropriateness of the closing documents; and a General Release was a form, bought on a pad, filled in, and sent to the other attorney without any real discussion, as everyone used the exact same release for 50 years. I always wanted to respond to any questions about the release in the same general syntax with “verily my liege.”  The webinar will be held Tuesday, May 25, 2021 at noon. Click here to register. 


 
The courts are back in high gear and we have a lot of ground to cover this month, with interesting cases in all areas of Labor Law. But first, the fun stuff:
 
In the first photo of the month, the painter, hired to paint the bedroom of the 3-family home, did not have a scaffold available to allow him to reach the higher portions of the wall, so he climbed on up on Regan McNeil as Father Merrin sought to drive the demon from her, to allow him to reach the portion of the wall near the ceiling. When Regan’s head swivels, causing the painter to lose his balance, fall to the ground, and be injured, is it a § 240(1) case?
 
 
 
As a person is not, in most cases, qualified as a safety device, this would seem to be a prima facie case of § 240(1). Given the fact that it is extremely unlikely that the plaintiff was ever instructed not to use a possessed teenager as a scaffold, the sole proximate cause defense is likely to fail as well. For anyone who has not seen the Exorcist, I recommend it on a dark, windy night, while home alone.
 
Our next photo shows a maintenance worker, hired to replace a lightbulb at a condo owned by a bunch of golf buddies on a vacation. When he arrives, he sees that the burned-out bulb is in an area he just can’t reach with the equipment he has with him and tells them he is going to get a man lift. Our erstwhile golfers, having played 36 holes and relaxed with adult beverages for several hours, tell him that they have a brilliant idea and concoct this setup to allow the soon-to-be plaintiff to reach the burned-out bulb. Shockingly, the plan does not work out and the plaintiff falls to the ground sustaining injury. § 240(1) case?
 
 
 
We have an appropriate plaintiff. He is a person so employed. Do we have an appropriate defendant? He is the property owner of a single-family home but, he certainly did supervise, direct, and control the means and methods of the injury producing work, so he does not have the homeowner exemption and becomes a valid defendant. The injury is clearly caused by the effect of gravity on the plaintiff. So, he has a valid claim, right? No, he does not; as the replacement of a lightbulb is defined as maintenance, not repair, and thus, the project undertaken does not afford the plaintiff the protections of the statute. He may, however, have an excellent negligence claim.
 
In our next offering we have a plaintiff who was hired by the property owner to weld a down pipe from the water line for a fire suppression system he was installing. When he could not reach the spot using a traditional method, due to the lack of a ladder, he climbed up on a portion of the wall and, removing his shoe, got ready to weld the only way he could reach the location. He realized that he had forgotten his welders’ helmet below and did not want to have to climb down and back up again. The plaintiff had been warned many times not to ever weld without the welder’s helmet on for any reason. As the plaintiff started to weld, a spark struck him in the forehead, due to the lack of his helmet, and caused him to lose his balance and fall to the ground below. § 240(1) case?


 
The plaintiff is an appropriate plaintiff, as he is a person so employed. The property owner is an appropriate defendant. The project is construction or alteration, as the installation of a fire suppression system clearly qualifies. The plaintiff was injured due to the effect of gravity, so he has a prima facie case of § 240(1). The sole proximate cause defense is the owner’s best option here. The five elements are that the plaintiff must: 1) have an appropriate safety device; which is 2) available to him; which he 3) was instructed to use; which he 4) failed to use or misused; 5) for no good reason. Here, the argument is that he was provided a helmet that was available to him, which he failed to use for no good reason. Sound logical? Well it is not. Recall that the plaintiff did not have a ladder to reach the location and while the failure to wear his welding helmet may be a proximate cause of the accident, the failure to provide an appropriate safety device, a ladder, is, at minimum, one proximate cause of the accident, precluding anything else from being the “sole proximate cause” of the accident. As § 240(1) is an absolute liability statute, the culpable conduct of the plaintiff for welding with his foot and not wearing his helmet will not be considered by the jury when reaching an award in the damages-only trial. In fact, they will never even know about it. They will only hear about the injuries and that the owner has been found to be at fault for those injuries.
 
In the next photo, the plaintiff, retained to paint the balconies of a newly built apartment complex, is extremely safety conscious and dons his safety harness and lanyard upon getting out of the work truck first thing in the morning, as instructed. He has also been instructed never, under any circumstances, to ever work in any situation where a fall is even remotely possible, without having his lanyard attached to a safety cable capable of preventing him from falling to any level below. As he gets ready to paint the final balcony, he sees that the safety cables were removed just seconds before, as they thought they were done with the painting. His boss specifically tells him to wait while they reinstall a cable before painting. He sees an electrician working in the unit and asks him to hold the lanyard while he finishes quickly. § 240(1) case?
 

Here, the sole proximate cause/recalcitrant worker defense should work. The appropriate safety device, the cable, combined with the lanyard and harness, was available and the fact that the plaintiff was told to wait while it was reinstalled, makes him a recalcitrant worker.
 
In the next video, we have a ladder designed to move, which causes the plaintiff to fall while moving exactly as intended. Plaintiff was supplied the ladder by his employer to use while painting a commercial building. As he was moving the ladder, a safety device he had been trained how to use, he fell and was injured. His testimony was that while he expected the ladder to move, it still startled him and he lost his balance and fell. § 240(1) case?

Ladder Fall

My impression is that, where a safety device is operating as intended and the plaintiff loses his balance and falls, it is not a § 240(1) case.
 
Here, we have a plaintiff helping to unload a concrete pipe on a construction site when the choker breaks, causing the pipe to fall injuring the plaintiff. § 240(1) case?
 
Pipe Fall
 
In a falling-object case, there are two separate types of action, where the object is being hoisted, and where the object should be secured. In this case, the object is being hoisted and thus, by definition, if it falls § 240(1) is violated.
 
That is it for this month. As always please feel free to reach out with any questions Labor Law or Risk-Transfer related, we are always here to help. 

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. 

 

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)

12 NYCRR 23-1.21(e)(5)(ii)— Stepladder Construction. (ii) Tread depth. The depth of the steps or treads of any stepladder shall be not less than three inches.

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

 

23–1.21(e)(5)(ii) 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: