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Labor Law Pointers - Volume X, No. 7

 
 

Labor Law Pointers

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

Volume X, No. 7
Wednesday, June 2, 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. 
 
Rarely is there a time as important to those of us who practice in New York, and specifically who have a practice focused on Labor Law cases, as right now.  There are two openings on the Court of Appeals and the individuals selected to fill those slots have been nominated.  I would usually say the Judges have been nominated, but that is not the case this time. 
 
Madeline Singas, currently District Attorney for Nassau County has been nominated to the Court of Appeals by the Governor.  She has not ever served as a Judge and has never been involved in a Labor Law case.  Judge Singas started her legal career in the Domestic Violence Bureau, in the New York City borough of Queens, as an Assistant District Attorney in 1991. She then joined the Nassau County District Attorney’s Office in 2006 as Chief of the Special Victims Bureau and, in 2011, was promoted to Chief Assistant District Attorney.  Singas has been the acting District Attorney for Nassau County since January 2015.  In May 2018, Singas was appointed by Governor Cuomo as Special Prosecutor to investigate the allegations of sexual assault made against then-Attorney General Eric Schneiderman.
 
Judge Anthony Cannataro, also nominated by the governor, is currently the Administrative Judge of the Civil Court of the City of New York.  In reading all of his published decisions, he has never ruled on a Labor Law case.  Judge Cannataro served as a law clerk to Judge Carmen Beauchamp Ciparick at the New York Court of Appeals, from 2000 to 2003, and as law clerk to Judge Lottie E. Wilkins in New York Supreme Court, from 2003 until 2011. In 2012, he was elected to the New York City Civil Court, where he served in the New York Family Court for Kings County until 2014. In 2014, he moved to the New York City Civil Court for the Bronx, and again in 2015, this time to become an acting Supreme Court Justice for the New York Supreme Court. From 2016 to 2018, he was appointed a supervising judge for the New York City Civil Court.
 
With no decisions to analyze, we have no ability to comment on how their appointments to the bench will potentially affect the rulings from the Court of Appeals.  There are several cases with split decisions we have been watching to see how they are decided by the Court of Appeals.  Time will tell.
 
We have some great cases for you this month, and a collection of photo puzzlers to make you think.  As always, we are available to provide training on any topic Labor Law or Risk Transfer related, just reach out.  We are starting to look at some in-person visits, and we are available to provide any level of training you may want or need.  
 
In the first photo, the plaintiff, an employee of the garage door company who maintains all the doors on site, is replacing the cable on the garage door, as he does every few years, to prevent a break.  He forgot his tall ladder, so some of the guys in the warehouse figured out a way to get him up to the top of the door.  The plaintiff falls when the door is mistakenly opened by an employee of the owner, and he is injured.  § 240(1) case?


 
We will follow our 4-step process to evaluate whether a prima facie case exists.  The plaintiff is a person so employed and thus a valid plaintiff.   The owner of the building is a valid defendant.  The plaintiff is injured by the effect of gravity causing his injury.  The task he was undertaking, however, was not a repair, but rather routine maintenance, and thus not a protected activity, and not a valid § 240(1) claim. He does, however, have a pretty darn good negligence case against the owner, whose employees created a crazy-looking method of getting the plaintiff to the area where he needed to work.
 
In our next photo, we have a situation where the speaker installed in the balcony has stopped working.  A parishioner who owns an electrical business volunteers to send one of his guys out to repair it.  When the parishioner’s worker arrives, he finds that the ladder he brought was not tall enough to reach the speaker, so he balances it on the pews, and has the ladder not fully opened and locked as he was instructed to always do, because the pews are too close together.  When he falls, § 240(1) case?


 
Let’s start with the easy parts.  The church owns the property, so they are a valid defendant.  The plaintiff fell from a height, so the application of gravity was involved causing the injury.  The speaker was broken, so it is a repair, a protected activity.  The parishioner volunteered to provide the worker to do the repair, but the worker himself was not a volunteer and thus he is a valid plaintiff.  Therefore, we have a prima facie case.  As to the sole proximate cause defense, the plaintiff had been instructed not to use a ladder which was not fully opened and locked.  The five elements to the sole proximate cause defense are: 1) was there an appropriate safety device; 2) which was available for the plaintiff to use; 3) which the plaintiff was instructed to use; 4) which he misused or failed to use; 5) for no good reason.  Here, while the plaintiff may have been instructed not to use the ladder while not fully open and locked, he did not have an appropriate safety device available, and thus the sole proximate cause defense will fail.
 
In the next photo, we have a plaintiff who, while working on installing a water line to a newly constructed store, felt it necessary to dig a bit deeper under the mini excavator, even though the excavator had only to move a few feet and dig in that spot.  The plaintiff was a relatively new employee and had just completed his OSHA 10-Hour Construction Safety course.  Shockingly, while the plaintiff was under the excavator, the board it was parked on broke, and the plaintiff was injured.  § 240(1)?


 
In this case, we have a plaintiff who is a person so-employed and a property owner, so we have an appropriate plaintiff and defendant.  We have a construction project, so we have a qualifying activity.  The excavator fell on the plaintiff, and would seem to be a falling object, but falling objects need to be either in the process of being hoisted or an object that needs to be secured.  Looking for opinions, is this a prima facie case or not?  As to the sole proximate cause defense, while the plaintiff took the OSHA 10-hour, which specifically teaches not to work under any equipment, that can’t be the sole proximate cause as the safety device (here, apparently, the boards under the excavator) failed and thus, nothing else can be the SOLE proximate cause.
 
Everyone has seen the iconic picture of the steel workers on the girder eating lunch. Well here we have the photographer working on the steel taking that photo.  Right after he took the picture, a gust of wind blew him from the beam, and he fell to the floor below and was injured.  § 240(1) case?


 
The plaintiff was working, but not doing construction or construction associated work, so he is not within the group of persons the statute is designed to protect.  Not a § 240(1) case.
 
Here, we have a plaintiff, the foreman of a crew hired to scrape the walls of a commercial building to then paint them.  He left his ladder in the truck right outside but decided to use a sawhorse and a co-worker to allow him to reach the higher parts of the wall and finish quickly.  He had been warned before by his boss not to “work unsafely” or “cut corners to finish early.” When he falls, § 240(1) case?


 
The plaintiff is a person so-employed and thus, a valid plaintiff.  The owner of the building is a valid defendant.  The project is painting, a covered activity.  The plaintiff falls from a height, so gravity-related injury.  Will the sole proximate cause defense work here?  The 5 elements to the sole proximate cause defense are: 1) was there an appropriate safety device; 2) which was available for the plaintiff to use; 3) which the plaintiff was instructed to use; 4) which he misused or failed to use; 5) for no good reason.   Here the plaintiff had the available appropriate safety device, on site, he failed to use it, and did so for no good reason.  The question will be whether he was instructed not to do the job in this manner.  General instructions to be safe are not sufficient to establish “instruction” for a sole proximate cause defense.  In this case, a careful deposition of the plaintiff, to have him admit that he knew that standing on a board balanced on a co-worker’s head was not a safe way to do the job, would be needed for the sole proximate cause defense to work.
 
Here, we have a couple guys working for a tree trimming business, which was hired to trim some the trees at Twin Pines Mall, after the trees were damaged by a runaway DeLorean.  They were instructed by their boss to get the job done any way they could, as it needed to be done that day, without fail.  When the workers fall, becoming plaintiffs halfway down, do they have a § 240(1) case?
 
 
 
Well, we have a valid plaintiff and a valid defendant.  The plaintiffs were injured by the effects of gravity, and their boss had certainly condoned their method with his instruction to get it done by any means necessary.  The fly in the ointment, if you will, is that they were trimming trees.  The statute limits the protection to those engaged in a protected activity on a “building or structure.”  A “structure” has been held to be something made up of component parts, and a tree is organic, not made up of component parts and thus, no § 240(1) case.
 
In our final photo, we have a worker painting a building at a great height with no fall protection of any type.  If he falls, § 240(1)?
 

 
Yes, an easy § 240(1) claim here.  I just liked the photo.
 
As many of us here in Buffalo await the opening of the Canadian border, we hope that you are all safe and healthy and enjoying the warming weather.  Please feel free to reach out to us with any questions Labor Law or Risk-Transfer related. 

David

 
David R. Adams
Hurwitz & Fine, P.C.
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

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Moldaver v Pref 34 E. 51st St., LLC
May 4 2021
Appellate Division, First Department

 
Plaintiff, an employee of Thyssenkrupp, allegedly suffered crushed fingers while installing counterweights on an elevator. Thyssenkrupp and the safety inspectors reported to the Sciame defendants, which managed “general safety,” created daily reports, conducted daily coordination and walkthroughs, and held foreman and subcontractor meetings. The trial court granted Pref 34 East 51st Street, Sciame Construction, and F.J. Sciame Construction and Thyssenkrupp’s motions for summary judgment dismissing the Labor Law § 241(6) claim based on Industrial Code (12 NYCRR) § 23-2.5(b), as well as the Labor Law § 200 and common-law negligence claims.
 
Labor Law § 241(6) (TPW)
The First Department affirmed dismissal of the Labor Law § 241(6) claim predicated on a violation of Industrial Code § 23-2.5(b), which requires the use of a platform to protect workers in elevator shafts while installing elevators. The court held that a platform as required under 2.5(b)(1) would not have prevented the counterweight from crushing plaintiff’s fingers in the frame. Further, subparagraph (b)(3), which requires a partition “where necessary” to prevent contact with “any adjacent operable elevator or counterweight”, was inapplicable, as the counterweight was not operable while being installed. Thus, a partition was not only not “necessary,” but had it been in place, it also would have prevented plaintiff from carrying out his task.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed dismissal of the Labor Law § 200 and common-law negligence claims. It held the record conclusively demonstrated that plaintiff’s employer, Thyssenkrupp (and not defendants), directed and controlled the elevator installation work, including the specific task plaintiff was performing at the time of his accident. The record further demonstrated the Sciame defendants merely had general supervision of the worksite and overall responsibility for safety, which is insufficient to raise an issue of fact as to whether they exercised the requisite degree of control to be held liable.
 
 

Mullins v Center Line Studios, Inc.
May 4 2021
Appellate Division, First Department

 
Plaintiff was allegedly injured while working on a project to assemble a large set piece for the production being put on by Murder for Two, LLC, who leased the space from New World Stages.  Plaintiff and his supervisor were paid by Murder for Two Limited Liability Co. Production Core essentially hired them and controlled and directed their work. The set piece itself was constructed by Center Line Studios before being transported to the assembly location. Plaintiff alleges that he climbed a ladder which was part of the set piece and a rung came undone, causing him to fall.
 
The trial court denied Center Line's motion for summary judgment dismissing the Labor Law §§ 240(1), 200, and common-law negligence claims and all crossclaims as against it and denied Production Core’s motion seeking dismissal of the complaint and all cross claims as against it.
 
 
Labor Law § 240(1) (MAS)
The First Department reversed the trial court and granted Center Line’s motion for summary judgment as it was not a statutory agent, and the record clearly indicated it had no authority to supervise and control plaintiff’s work.

PRACTICE POINT: The issue here is whether Center Line qualifies as an owner or general contractor’s agent for the purposes of the Labor Law. The test remains whether the “agent” has the authority to supervise, direct, and/or control the injury-producing work. That means that the “agent” needs to have been delegated the “duty to conform to the requirements of the Labor Law,” “had the right to insist that proper safety practices were followed,” and had “broad responsibility” to coordinate and supervise “all the work being performed on the job site.” Accordingly, we recommend that you start every case by reading all the contracts very carefully.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department reversed the trial court’s decision and granted summary judgment to Center line on plaintiff’s Labor Law § 200 claim. It held, even if Center Line was a proper Labor law defendant, it was not liable under the statute because, in this means and methods case, there was no proof that Center Line had authority to supervise and control plaintiff’s work. Interestingly, the Court found a triable issue of fact against Center Line as to common-law negligence.  Based on Espinal v Melville Snow Contrs., 98 NY2d 136, 140 (2002), the Court found questions of fact as to whether Center Line negligently created or exacerbated a dangerous condition so as to have “launche[d] a force or instrument of harm.”  (In other words, whether Center Line made conditions more dangerous than they were before it acted). 
 
The question for a jury was whether Center Line Center Line could have reasonably anticipated that the gluing of the rung to the top of the ladder would pose a hazard and was likely to cause injury, given that the ladder was structural and climbable, or if Center Line’s conduct was reasonable given its belief that the ladder was a prop ladder that was not meant to be OSHA compliant, and that it augmented the ladder as directed by Production Core and in reliance on Production Core’s assurances that the top portion of the ladder would not be ascended by the actors. question of fact exists as to whether. 
 
Indemnity Issues in Labor Law (BFM)
As Production Core was the plaintiff’s special employer, the complaint, and cross claims against it, were dismissed, except to the extent the cross claims were for contractual indemnification.
 
 

Dyszkiewicz v City of New York
May 6, 2021
Appellate Division, First Department

 
Plaintiff fell through a scaffold approximately six feet to the next level below, when an unsecured plank allegedly shifted or slipped in an unwitnessed construction accident. The trial court granted plaintiff's motion for partial summary judgment on his claim pursuant to Labor Law § 240(1).
 
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed summary judgment in plaintiff’s favor. Defendants claimed the “impossibility” of plaintiff’s accident since it was unwitnessed and statements from plaintiff’s coworkers stated the scaffold was clean and free of debris. However, none of the coworkers addressed whether the planks were secured at the time of plaintiff’s accident or whether, as claimed by plaintiff and another coworker, their foreman directed some of the workers to hurry up and nail the planks down after the accident.
 
PRACTICE POINT: Plaintiff’s deposition testimony established that a proximate cause of his injury was the unsecured scaffold planks, which shifted when he stepped on them. Thus, plaintiff’s conduct could never be the sole proximate cause of his accident (see Blake v Neighborhood Hous. Serv. of N.Y. City, 1 N.Y.3d 280, 290 [2003] [“if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it’]).
 
 

Greene v Raynors Lane Prop. LLC
May 13, 2021
Appellate Division, First Department


Defendant Raynors owned the subject property and hired SDC to build a new single-family home on the property for the use of Raynors's sole member on weekends. SDC hired Haddock as a subcontractor to provide materials and perform carpentry and framing work. On the day of the accident, plaintiff was cutting columns of microlams and described them as “[a]lmost like a steel beam,” measuring 5½ inches wide, 17½ inches tall, and up to 36 feet in length. Plaintiff was instructed by his supervisor to lift the end of the microlam, which may have weighed as much as 1,000 pounds, to allow the blades of the forklift to slide under the board. He testified that while he was attempting to lift the end of the microlam "[t]he ground was very muddy[,] [m]y foot slipped a little bit and I felt a sharp tearing sensation . . . in my back, and I knew I was hurt right away." Plaintiff also noted that the ground was "sloped"; it had rained the previous day so the "whole job site was very, very muddy, very slippery"; there was only dirt there and "no grass." He also described the slope as at a "slight pitch" of maybe "two degree[s]." Plaintiff reiterated, "[m]y foot slipped on wet, uneven surface, yes, on the mud." He also testified that he may have lifted the microlam a couple of inches or up to a foot and held it up for less than 10 seconds.

The trial court granted plaintiff's cross-motion for partial summary judgment under Labor Law § 240(1) as against SDC and denied defendant SDC motion for summary judgment dismissing that claim “because the object that dropped, i.e. [,] the piece of lumber, was a load that required securing for the purposes of the undertaking at the time it fell.” The trial court also granted SDC summary judgment on its contractual indemnification claim against Haddock and denied Haddoc's cross-motion for summary judgment dismissing SDC's contractual indemnification claim.

Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court and denied summary judgment to plaintiff, finding issues of fact as to whether plaintiff’s injuries “were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.” The court also affirmed denial of summary judgment to SDC, noting that plaintiff was placed in a position that required him to lift an extremely heavy piece of lumber, without any safety devices such as those listed in the statute, to get the assistance of a forklift. Moreover, plaintiff was under no duty to demand an alternate safety device on his own because “[t]o place that burden on employees would effectively eviscerate the protections that the legislature put in place.”
 
PRACTICE POINT: This case demonstrates that Labor Law § 240 cases are fact-specific, and every court seems to interpret Runner v New York Stock Exch., Inc., 13 NY3d 599 (2009) differently. The purpose of Labor Law § 240(1) is to “protect construction workers not from routine workplace risks, but from the pronounced risks arising from construction work site elevation differentials.” Runner reframed the question, stating that “the single decisive question is whether plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.”  The question here seems to be whether such “physically significant elevation differential” was present?
 
Indemnity Issues in Labor Law (BFM)
As issues of fact existed as to whether the plaintiff's injuries were the direct consequence of a failure to provide adequate safety devices, the First Department found it premature to grant SDC summary judgment on its contractual indemnification claim against Haddock.

 

Amaya v Purves Holdings LLC
May 18, 2021
Appellate Division, First Department

 
Plaintiff allegedly tripped on an electrical cord in a hallway where he was working. The trial court denied defendants’ motion for summary judgment dismissing plaintiff's Labor Law §§ 241(6), 200, and common-law negligence claims, and granted plaintiff's cross-motion for partial summary judgment under Labor Law § 241(6). 
 
Labor Law § 241(6) (TPW)
The First Department unanimously modified the trial court’s decision to grant defendants’ motion seeking dismissal of the Labor Law § 241(6) claim predicated on an alleged violation of Industrial Code 12 NYCRR § 23-1.7(e)(1). As plaintiff was actively applying a plaster compound to the sheetrocked walls in the hallway where he fell, the court determined the hallway must be considered more of a work area than a passageway as contemplated by the stature. 
 
However, neither plaintiff nor defendants were entitled to summary judgment on the Labor Law § 241(6) claim to the extent it was based on Industrial Code § 23-5.22(f), given the inconsistencies it the testimony concerning the happening of plaintiff’s fall and issues of fact as to whether the electrical wire, on which plaintiff tripped, was integral to the work.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department reversed the trial court’s decision and granted summary judgment as to Labor Law § 200 and common-law negligence. It held that the electrical cord or wire on which plaintiff tripped was not attached or plugged into the wall “for a sufficient length of time prior to the happening of [the] accident to permit the defendant to discover and remedy it” (hazardous condition). Moreover, the undisputed evidence established that defendant general contractor lacked control over the work site (means and methods).
 
 

Hyatt v Queens W. Dev. Corp.
May 18, 2021
Appellate Division, First Department
 

Plaintiff was working with a coworker breaking down reshore scaffolding and tower scaffolding. Plaintiff was up on the tower scaffolding platform, where he removed a metal beam and handed it down to his coworker. He then descended the tower scaffolding to the floor and moved the tower scaffolding so that he could move a reshore scaffolding. As plaintiff was working on the reshore scaffolding, which was not connected with the tower scaffolding that he had just moved, the tower scaffolding fell and hit plaintiff. The trial court granted plaintiff's motion for summary judgment under Labor Law § 240(1) against Queens West Development Corporation, 4545 East Coast LLC, formerly known as East Coast 2 LLC, and TF Cornerstone (collectively “defendants”) and denied defendants’ cross-motion for summary judgment dismissing the Labor Law § 240(1) claim.
 
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed as plaintiff established that he was injured as a result of defendants’ failure to provide him with adequate safety devices as required under Labor Law § 240(1). The court found that securing the tower scaffolding would not have hindered the purpose of breaking down scaffolding, as the tower scaffolding was not integral to the context and purpose of the work.
 
PRACTICE POINT: The critical fact here is the part of the scaffolding that collapsed and proximately caused plaintiff’s injury was an elevated risk contemplated by Labor Law § 240(1), but not the intended target of the demolition at the time it collapsed on him. Moreover, securing the tower scaffolding against collapse would not have been contrary to plaintiff’s work in breaking down the reshore scaffolding.
 
 

MacGregor v MRMD NY Corp.
May 18, 2021
Appellate Division, First Department

 
Plaintiff was rigging steel beams that were being hoisted during a storm, when they were suddenly dropped, knocking plaintiff off the cab of the truck where he was working. Plaintiff submitted evidence showing that defendant's contractor failed to use tag lines or other safety devices to secure the steel beams allowing the beams to spread and drop. The trial court granted plaintiff's cross-motion for partial summary judgment on his Labor Law §§ 240(1) and 241(6) claims and denied Morris Park's motion for summary judgment dismissing the complaint and any crossclaims. 
 
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed, as plaintiff established prima facie entitlement to summary judgment. The court properly considered plaintiff’s affidavit concerning the failure to use tag lines, because the affidavit did not flatly contradict any part of his deposition testimony, during which he was not asked about tag lines or other safety devices. Defendant admitted that tag lines were not used during the hoisting process and offered no admissible evidence in opposition to plaintiff’s motion.
 
PRACTICE POINT: Plaintiff established that the accident was proximately caused by defendants’ failure to provide safety devices necessary to ensure protection from the gravity-related risks posed by the work he was engaged in, in violation of Labor Law § 240(1). Early investigation, which we recommend for every Labor Law case, may have revealed the presence of tag lines or other appropriate and available safety devices at the work site, which evidence may have defeated plaintiff’s motion for summary judgment.
 
Labor Law § 241(6) (TPW)
The First Department unanimously affirmed plaintiff’s summary judgment motion as to his Labor Law § 241(6) claim based on defendant’s contractor violating both Industrial Code 12 NYCRR §§ 23-2.3(c) and 23-8.1(f)(2)(i) concerning hoisting.  Plaintiff demonstrated that tag lines were not used. Further, the sudden deceleration of the hoist by defendant’s contractor caused the bundle to bounce and cause a sudden movement of the load, which knocked plaintiff from the cab of the truck causing his injuries.
 
 

Hogan v 590 Madison Ave., LLC
May 20, 2021
Appellate Division, First Department

 
Plaintiff fell from a ladder that suddenly gave way while he was performing work on a construction project at premises owned by Madison and leased by Delphi. The trial court granted plaintiff's motion for summary judgment on his Labor Law § 240(1) claim against Madison and Delphi, denied Madison and Delphi's motion for summary judgment on their crossclaims and their third-party complaint, denied Commodore’s motion for summary judgment dismissing Madison and Delphi's contractual and common-law indemnification claims against it, and granted OH&M’s motion for summary judgment dismissing the third-party complaint.
 
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed, as plaintiff’s deposition testimony established prima facie that he was injured as a result of defendants’ failure to provide him with proper protection against elevation-related risks, and which failure was a proximate cause of his injury. The court rejected Madison and Delphi’s sole proximate cause argument because there was no evidence that either of them provided plaintiff an appropriate safety device that plaintiff chose not to use or misused.
 
PRACTICE POINT:  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, even if an adequate ladder was readily available on the site, Madison and Delphi failed to show that plaintiff knew that he was expected to use it or that he chose not to do so for no good reason.
 
Indemnity Issues in Labor Law (BFM)
Madison and Delphi were denied contractual indemnification against Commodore due to issues of fact as to whether the accident arose out of Commodore's work.  The First Department found that Commodore failed to establish that Madison and Delphi were not entitled to indemnification under the blanket insurance/indemnity agreement executed by Commodore. 

Madison and Delphi's common-law indemnification claims were correctly dismissed, as there was no evidence that Commodore or OH & M directed or supervised plaintiff's work or were otherwise negligent.  Although OH & M executed the same blanket insurance/indemnity agreement as Commodore's, Madison and Delphi failed to rebut OH & M's showing that plaintiff's accident did not arise out of its work.
 
 

Pena v Intergate Manhattan LLC
May 20, 2021
Appellate Division, First Department

 
On the day of the accident, plaintiff was working as a glazier on the façade of a building from a motorized scaffold. The vertical movement of the motorized scaffold was controlled by a power cord that stretched approximately 500 feet long and weighed approximately 300-400 pounds. Plaintiff claimed that this power cord fell from above the scaffold and struck his arm. The scaffold structure was designed and constructed by Beeche. Beeche also provided daily inspection of the scaffold and trained the workers who would use it to conduct their work. A Beeche employee on site also monitored wind conditions to assure that the scaffold could be used safely. The jobsite also had a safety inspector on site employed by Site Safety LLC. The scaffold was operated by a co-employee of plaintiff. No Beeche employee was deployed to operate, or ride, the scaffold.
 
The trial court granted plaintiff's motion for partial summary judgment under Labor Law § 240(1) as against Intergate, Sabey Data, Sabey IGM, and AIC (collectively Owners/GC), denied plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim as against defendant subcontractor Beeche, and denied Owner/GC's motion for summary judgment on their contractual and common-law indemnification cross claims against Beeche.
 
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed as defendants’ contention that plaintiff gave conflicting accounts of his accident, which gave rise to triable issues of fact, at most established plaintiff’s comparatively negligence and is not a defense to Labor Law § 240(1) liability. The Court also affirmed denial of plaintiff’s motion against Beeche as there were issues of fact as to whether Beeche had the requisite exclusive control or supervisory authority over the work area to be liable as a statutory agent.
 
PRACTICE POINT: We often see opposition to summary judgment motions asserting there are conflict versions of the accident such that issues of fact warrant denial of plaintiff’s motion. However, the cases to support such a claim all address inconsistencies in plaintiff’s various versions of the events, creating a need for cross-examination and justifying a challenge to plaintiff’s credibility. Only by relying on admissible evidence to support differing factual assertions as to how the accident occurred can a defendant properly raise an issue of fact as whether there was a violation of Labor Law § 240(1) and if so, whether it was a proximate cause of his or her injuries.
 
Indemnity Issues in Labor Law (BFM)
The First Department affirmed the trial court’s denial of the Owners/GC's motion for summary judgment on their cross claim for contractual indemnification against Beeche as same was premature.  The indemnification provision at issue required a finding of negligence the part of Beeche or its agents.  Further, the Owners/GCs are not entitled to seek indemnification for their own negligence.  As no finding has been made as to whether Beeche or the Owners/GCs were negligent, the motion was premature. 

Intergate, Sabey Data, and Sabey IGM's motion for summary judgment on their cross claim for common-law indemnification against Beeche also was properly denied as premature.  To establish a claim for common-law indemnification, “the one seeking indemnity must prove not only that it was not guilty of any negligence beyond the statutory liability but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident”.  As there has been no finding as to whether Beeche or the Owners/GC were negligent, the motion was premature.
 
 

Alberto v DiSano Demolition Co., Inc.
May 25, 2021
Appellate Division, First Department

 
Nick Sota was the owner and sole shareholder of Niko's Construction, Inc.  In 2014, Niko's hired Ms. Oppedisano and Disano Co. to obtain multiple building permits for the construction of a new single-family house owned by the Sotas. Oppedisano obtained at least four building permits for the construction. Disano was the general contractor identified on all the permits, and Nick Sota testified that he hired Disano Co. to pull the permits and act as the general contractor. In the invoices and checks, Niko's Construction, Inc., not Nick Sota individually, hired Disano Co. Oppedisando conceded that she was identified as the construction superintendent on each of the permits and claimed that Disano Co. was the general contractor, and Niko's Construction, Inc. operated on site as a de facto general contractor under her.  It is not disputed that Nick Sota and Niko's Construction, Inc. did not have all of the necessary licenses and insurances to obtain their own permits. The construction superintendent has duties that are imposed by the New York City Building Code.  Plaintiff was a skilled mason doing brick work on the front of the house while standing on a scaffold when a “bicycle” that the plank was laid across gave way due to a broken bracket on the “bicycle” and digging near the scaffold that caused it to shift, resulting in the accident. 
 
The trial court denied plaintiffs' motion for summary judgment as the Labor Law §§ 240(1) and 241(6) claims, granted defendants DiSano and Anna Maria Oppedisano's (the DiSano defendants) cross motion for summary judgment dismissing the complaint as against them, and denied the Sota defendants’ cross motion for summary judgment dismissing the complaint as against them. 
 
 
Labor Law § 240(1) (MAS)
The First Department reversed and held the Labor Law § 240(1) claim may not be dismissed against DiSano, because issues of fact exist as to whether DiSano was the general contractor on the project. Although work permits are not alone sufficient to establish general contractor status, they are not the only evidence relied upon. The court also found issues of fact whether Niko was the general contractor for the project, exercised supervisory control over the work and whether its workers created the allegedly dangerous condition by digging near the scaffold.
 
Plaintiff’s complaint was correctly dismissed against Oppedisano because it was undisputed that she was an officer of DiSano and there is no evidence in the record to support piercing the corporate veil. The court also held Manuela’s lack of supervisory authority exempts her from liability under the homeowners’ exemptions.
 
PRACTICE POINT:  A defendant seeking dismissal of a Labor Law § 240(1) claim must demonstrate that it lacked the authority to supervise, direct, and control the injury producing work. If a defendant cannot establishe that it did not have the right to insist that proper safety practices were followed and had broad responsibility to coordinate and supervise all the work being performed on the job site, then defendant has not met its prima facie burden.
 
Labor Law § 241(6) (TPW)
The First Department unanimously modified the trial court’s decision, holding the Labor Law § 241(6) claim should be dismissed as against all defendants because the Industrial Code provisions relied upon were either insufficiently concrete or insufficiently specific to support a Labor Law § 241(6) claim. Further, the claimed violations of OSHA and Scaffolding, Shoring & Forming Institute, Inc. standards and the 2008 New York City Building Code do not provide a basis for liability under Labor Law § 241(6).
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department held that the Labor Law § 200 and common-law negligence claims against Niko and Niko’s Construction could not be dismissed as issues of fact existed as to whether either party was the general contractor on the project and/or exercised supervisory control over the work, and whether it was Niko's Construction workers who created the alleged dangerous condition by digging near the scaffold.
 
 

Digirolomo v 160 Madison Ave LLC
May 27, 2021
Appellate Division, First Department

 
Plaintiff allegedly tripped on a floor penetration which had been covered when Parkview last worked in the area of the accident, during the week prior. The floor penetration was covered when the site safety contractor inspected the area on the day before and the day of the accident, and Parkview was not performing any work in the area on the day of the accident and had not performed any work there since the week before. The trial court denied Parkview’s motion for summary judgment dismissing the complaint and all cross claims as against it. 
 
Labor Law § 241(6) (TPW)
The First Department dismissed plaintiffs’ Labor Law § 241(6) claim as against Parkview as abandoned, given plaintiffs did not oppose that part of Parkview’s motion and did not defend the claim on appeal.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department reversed the trial court’s decision and granted Parkview summary judgment as to Labor Law § 200 and common-law negligence. It found that the floor penetration was covered when Parkview last worked in the area the week before, that it was covered when the site safety contractor inspected the area on the day before and day of the accident, and that Parkview was not performing any work in the area on the day of the accident or since the week before. Consequently, plaintiff’s claim that it must have been Parkview that uncovered the floor penetration because it was the only contractor or trade with any reason to do so, was based on speculation. 
 
Indemnity Issues in Labor Law (BFM)
As there was no basis for holding Parkview liable to plaintiffs, the Court dismissed the cross claims against it for common-law indemnification and contribution.
 
 

Hernandez v 767 Fifth Partners, LLC
May 27, 2021
Appellate Division, First Department

 
Plaintiff was allegedly injured when the plywood platform of a baker's scaffold upon which he was standing to install window soffits suddenly collapsed beneath him as he reached overhead to drill a screw into a stud. The trial court granted plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim. 
 
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed, as plaintiff’s deposition testimony established prima facie entitlement to partial summary judgment. Plaintiff’s employer, Philips, failed to raise a triable issue of fact on the sole proximate cause defense by failing to submit proof establishing that the scaffold was an adequate safety device for plaintiff’s work. Although plaintiff may have been comparatively negligent by allegedly failing to abide by safety instructions, including self-inspecting the scaffold prior to its use, and by attempting to move the scaffold to a different location while standing atop it, that did not preclude summary judgment because Philips’s foreman knew its workers would move scaffolds in that manner.
 
PRACTICE POINT: The collapse of the scaffold was prima facie evidence of a violation of Labor Law § 240(1). For the sole proximate cause defense to potentially raise an issue of fact sufficient to defeat plaintiff’s motion for summary judgment, instead of allowing its employees to move scaffolds while standing on them, Philips’s foreman needed to have provided plaintiff with specific instructions not to move them in that manner.
 
 

Cantalupo v Arco Plumbing & Heating, Inc.
May 5, 2021
Appellate Division, Second Department

 
Plaintiff and three coworkers were instructed to reinstall a division plate into the water box of an air conditioning unit. The condenser head, a round piece of steel that covers the water box, was leaning upright on the side of the unit, and was unsecured by a chain fall. While the crew was lifting the approximately 500-pound division plate, the division plate struck the condenser head, causing the condenser head to tip over and fall on the plaintiff's leg. The trial court denied the motion of Chase Manhattan for summary judgment dismissing the complaint. 
 
Labor Law § 240(1) (MAS)
The Second Department affirmed denial of Chase’s motion, as its own proof raised triable issues of fact as to whether plaintiff was engaged in repairs or routine maintenance at the time his accident occurred. Although it is undisputed that an outside party was to perform the ultimate repair to the defective division plate, plaintiff testified that his supervisor instructed him to perform a temporary repair to the division plate in order to make the air conditioning unit function.
 
PRACTICE POINT: Courts hold that work constitutes routine maintenance where the work involves replacing components that require replacement in the course of normal wear and tear. If, as in this case, the work requires making a significant physical change to the configuration or composition of the building or structure (albeit temporary, but still a significant physical change), then it constitutes “repairing” within the meaning of Labor Law § 240(1).
 
Labor Law § 241(6) (TPW)
The Second Department reversed, holding the trial court should have granted that branch of Chase’s motion for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6).  The court noted that although the applicability of Labor Law § 241(6) is not limited to building sites, the work in which plaintiff was engaged must have affected the structural integrity of the building or structure, or have been an integral part of the construction of a building or structure. Defendant demonstrated plaintiff was not involved in the activity of construction, excavation, or demolition when the accident occurred; therefore, Labor Law § 241(6) was inapplicable.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed denial of Chase’s motion as to Labor Law § 200 and common-law negligence. In this case, plaintiff alleged that his injuries were caused by a dangerous condition on the premises, the unsecured condenser head standing upright on its side, as well as by the means and methods of the work being performed and the equipment used, including the failure to use a chain fall to move the division plate. The Court found that while Chase demonstrated that it did not control the means and methods of the work, it failed to demonstrate that it neither created the alleged dangerous condition nor had actual or constructive notice of it.  According to plaintiff, the condenser head was removed from the air conditioning unit one to two weeks before his accident and, during that time, contrary to the customary practice, someone removed the chain fall that was securing the condenser head. Chase, however, failed to offer any evidence that it was not responsible for the removal of the chain fall, that it inspected the area, or that the dangerous condition was latent and not discoverable upon a reasonable inspection. Accordingly, summary judgment properly was denied.
 
PRACTICE POINT:  Liability under Labor Law § 200 and common-law negligence falls into two broad categories: instances involving the manner in which the work is performed, and instances in which workers are injured as a result of dangerous or defective premises conditions at a work site. When making a motion for summary judgment, you must always address both.
 
 

Marney v Cornell Kent II Holdings, LLC
May 19, 2021
Appellate Division, Second Department

 
Plaintiff, an employee of nonparty WGI, was allegedly injured while drilling for soil samples at the subject property, which allegedly was owned by the Cornell entities. Prior to the accident, CRM, entered into a contract with RAC, wherein RAC agreed to perform geotechnical testing at the subject property to test the soil for future excavation and construction work. Pursuant to this contract, RAC hired WGI to perform the drilling for the soil samples. Plaintiff was injured when the drill he was using allegedly malfunctioned. The trial court granted the separate motions of the Cornell entities, RAC, and CRM, for summary judgment dismissing the complaint as asserted against each of them and denied plaintiff's cross-motion for summary judgment on the complaint. 
 
Labor Law § 241(6) (TPW)
The Second Department affirmed dismissal of the Labor Law § 241(6) claim. The scope of Labor Law § 241(6) is governed by 12 NYCRR 23-1.4(b)(13), which maintains construction work consists of all work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures. Defendants established that plaintiff was not engaged in construction or any other work within the purview of Labor Law § 241(6). Plaintiff’s work was part of a geotechnical investigation to determine, among other things, the properties of the soil and the suitability of the soil for excavating and constructing a structure.  As no construction work was ongoing when plaintiff was injured, and plaintiff’s work was investigatory and was to terminate prior to the actual commencement of any construction work, it was properly classified as a separate phase easily distinguishable from other parts of the larger construction project.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed dismissal of the Labor Law § 200 and common-law negligence claims. As this was a “means and methods” case, defendants met their burden of proof by demonstrating they did not supervise, direct, or otherwise control plaintiff’s work. The evidence showed that only WGI supervised plaintiff's work, that plaintiff reported safety concerns only to WGI. While RAC instructed plaintiff as to the number and depth of the holes to drill, it did not instruct him on the manner of performing the drilling. 

 New York Industrial Code Regulations - (EDA)

12 NYCRR 23-1.21(e)(5)(iii)— Stepladder Construction.  (iii) Pail shelf. A pail shelf, if provided on a stepladder, shall be designed to fold completely within the ladder.

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

23–1.21(e)(5)(iii) 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 specific to support a §241(6) claim.


 

 

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