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Labor Law Pointers - Volume X, No. 8

 
 

Labor Law Pointers

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

Volume X, No. 8
Wednesday, July 7, 2021

 

From the Editor:
Do you have a situation? We love situations. We are here to help you assess your situation and help you through it.
 
I want to take this opportunity to thank my team for the great work they have done for our clients and carriers during this time. I also want to thank the same clients and carriers who trusted us with their cases, and their situations, during this period. We know that trust must be earned on a continuing basis, and we fully intend to continue to provide quality legal work, in a thoughtful and concise manner. 
 
It looks like summer is here with a vengeance. It has been hot here, not like some other areas of the country, but hot nonetheless.  When the weather changes like this, thoughts often turn to training … No, they don’t. Not even I believe that. Nonetheless, we are available for any training you may need or want.  As restrictions ease up, more and more businesses and associations are having in-person team meetings.  If you are interested in some training, just let us know; we have all types and topics, live and via webinar.
 
In our first photo below, a property owner decided to build his own home.  He did not want to hire a general contractor or builder and thought he could get by with a little help from his friends. So, he asked them to come over and they started to build the house.  He was only going to pay them $25 per day, each.  As his friends were not as adept at house building, he provided instructions to them on how he wanted them to build the house and supplied all the tools and materials to them.  Despite the lack of training, he decided he would try with a little help from his friends.  Unfortunately, some of the younger workers decided that what they wanted to do prior to the start of work was to get high with a little help from their friends, and one of them, unfortunately, then fell from the roof while installing the trusses, as instructed by the owner.  § 240(1) case?
 
 
 
The plaintiff clearly has a prima facie case: proper plaintiff, he was a person so-employed; proper defendant, he was the owner; overall project was construction; and the plaintiff was injured by the effect of gravity. As to a sole proximate cause defense, the plaintiff was not provided with any appropriate safety devices, so that defense fails. As to the plaintiff getting high, and what effect that had on his ability to stay on the roof, it would, at most, be comparative negligence on the plaintiff and, therefore, neither an offset nor complete defense to the statutory liability of the owner. Even if the owner specifically told the plaintiff not to get high before working, that would not be the sole proximate cause as the defendant did not supply appropriate safety devices and thus nothing else could be the SOLE proximate cause of the fall and injury. The result under § 240(1) is summary judgment for the plaintiff.
 
In our second example, we have a church where the weathervane on the spire is broken, will not turn, and is severely tarnished, having not had any attention in well over 50 years. The priest, noticing the deplorable condition of the weathervane, mentions it during services and a parishioner, who just happened to own a weathervane polishing business, tells the priest that he will volunteer to have it repaired, polished, and looking like new. He calls one of the men from his business, pulls him off another job, and instructs him to have the vane polished right away. Unbelievably, his employee falls from the stack of ladders he used to get to the top of the spire, when the ladder shifted, causing him to be injured. Is this a § 240(1) case?
 

 
We always start our analysis the same way: here we have a valid defendant, the owner of the church; we have a repair to the weathervane, and a gravity related injury. What about a valid plaintiff? The parishioner volunteered to have the repair done, so does that prevent liability as the plaintiff must be “a person so-employed”? Unfortunately for the church, it does not. While the work was being done gratuitously for the church, the plaintiff was, in fact, employed and being paid by the parishioner’s business. As no safety devices were provided to the plaintiff to prevent the fall, the result is § 240(1) for the plaintiff.
 
In our third example, we have a homeowner who wants her house painted. Her neighbor offers to help, and she readily accepts his offer. She offers to pay him to do the job and he accepts. Using his ladder to get to the upper reaches of the house, he asks her to hold the bottom of the ladder for him and she agrees. The ladder slides to the side causing the plaintiff to fall. Is there a § 240(1) case?
 

 
Plaintiff is being paid, so he is a valid plaintiff; the work is an enumerated task, painting, so good there; the fall from the slipping ladder is gravity related, so the question will be if the homeowner is entitled to the homeowner’s exemption or not. The exemption only exists for owners of one and two-family dwellings who contract for, but do not direct or control, the work. Here, the owner merely held the ladder – not very successfully, I would add – for the plaintiff, and thus, she is entitled to the exemption and no valid § 240(1) case is presented here.
 
In our fourth example, the plaintiff works for a big box store and is instructed by his boss to move the lavender plants around, so the healthy ones are in the front and will sell better. He tells his boss that he needs a ladder to reach them, and the boss says that “the ladders are to sell,” and he does not want them scratched, so take a shopping cart and turn it on its end and “climb on up there” to perform the job. When the plaintiff complains that it is dangerous, his boss threatens to fire him if the job is not done in fifteen minutes. No sooner does the plaintiff get up on the cart, when it twists from his weight and causes him to fall, sustaining injury. Is this a § 240(1) case?
 

 
Here, we have a plaintiff so-employed; an owner of the premises; and an individual injured by a fall from a deficient safety device, the cart. Unfortunately for the injured plaintiff, the project was not an enumerated activity. The protection under § 240(1) is limited to the erection, demolition, repairing, altering, painting, cleaning, or pointing of a building or structure, and not to the arrangement of merchandise to be sold in a store.  No § 240(1) case here.
 
In our fifth example, the plaintiff is an electrician working for the company hired to replace a light bulb in the stairwell of a single family, two-bedroom home being rented out by the owner.  As he climbs down the ladder, after replacing the light bulb, the ladder shifts and he falls, § 240(1) case?
 

 
Plaintiff is a person so-employed, so he is a valid plaintiff. The defendant, while only owning a single-family home with two-bedrooms, is not entitled to the exemption, as the home is being used for commercial purposes, and the exemption is only for residential use.  The plaintiff was injured by the effects of gravity but, the work being done by the plaintiff was not an enumerated activity.  Here the plaintiff was replacing a light bulb, which is considered routine maintenance, and not repair, so no § 240(1) case here.
 
In the sixth example, Larry, a town employee who, with his coworkers Curly and Moe, are tasked with painting the town-owned water tower.  None of them have any training about working at heights, and they are provided with three paint brushes, four hundred cans of paint, one ladder, and twenty-five feet of rope to complete their job.  As Larry attempts to work from the ladder, which is tied to the water tower, it slides to the side, and he falls and is severely injured.  § 240(1) case?
 

 
Here the plaintiff is a person so-employed; the town owns the water tower; the job is an enumerated one, painting; the plaintiff was injured by the effects of gravity; and there is no possible sole proximate cause defense, where the plaintiff was told to use what he had. So, why is the town not nervous about the § 240(1) case?  The plaintiff is restricted by § 11. Alternative Remedy of the Workers’ Compensation Law, whereby the plaintiff’s exclusive remedy is to receive Workers’ Compensation, and he cannot sue his employer, unless the employer failed to provide him with Comp.  Thus, there is no § 240(1) claim against the owner, and there would not appear to be any other potential defendants.
 
As always, we encourage you to reach out to us with any questions Labor Law or Risk Transfer related, we are here to help and, frankly, we really enjoy it.  Until next month, stay safe please. 

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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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. 

 

Padilla v Absolute Realty Inc.
June 1, 2021
Appellate Division, First Department

 

Plaintiff suffered a permanent total disability, and could not work in any capacity, due, at least in part, to the nature of the brain injuries he allegedly sustained, after falling from the roof on which he was working. The First Department previously determined the general contractor, Fiedler, was liable to defendant/third third-party plaintiff owner, Absolute Realty, under common-law indemnification, based on Fiedler's actual exercise of supervision and control over the subcontractor Cercone's work. Thus, Fiedler has been held liable to plaintiff only because of the absolute liability provisions of Labor Law § 240(1). The trial court denied Cerone’s motion for summary judgment seeking as to Fiedler’s contractual indemnification claim against it.

Indemnity Issues in Labor Law (BFM)

The First Department held that issues of fact as to Fiedler’s negligence precluded the dismissal of Fiedler’s contractual indemnification claim against Cercone. The court noted that if Fiedler is found to have been negligent, the indemnification provision, which does not contain any saving language, would be unenforceable under General Obligations Law § 5-322.1, since its full enforcement would result in Fiedler being indemnified for its own negligence.

As to Fiedler and Absolute’s claims for common-law indemnification and contribution, the court found issues of fact as to whether the plaintiff suffered a grave injury.
 

Agli v 21 E. 90 Apts. Corp.
June 8, 2021
Appellate Division, First Department

 
Plaintiff testified that he was injured as he and two coworkers employed by nonparty Dunwell were attempting to lower a steel bedplate, weighing 500 pounds, down an exterior flight of stairs on a hand truck. Plaintiff was not provided with any hoisting equipment to use on the staircase and defendants previously refused plaintiff’s employer’s requests to bring equipment through the building’s lobby and down the shaft-way of the lobby elevator, which was already outfitted with rigging equipment. Instead, defendants instructed plaintiff to bring their materials through the courtyard behind the building and down an exterior staircase to the basement. Plaintiff was holding the hand truck by the handles at the top, while his coworkers held it from the bottom, to control its descent, and as the hand truck was going down the first step, the hand truck went down the first step “very fast,” which “jerked” plaintiff and caused him to slip on some dirt, gravel, or debris on the step.
 
The trial court granted plaintiffs motion for summary judgment under Labor Law § 240(1) and denied defendants 21 East 90 Apartments and DEPM’s motion for summary judgment dismissing the Labor Law §§ 241(6), 200, and common-law negligence claims, rejecting defendants’ argument that issues of fact exist as to the way the accident occurred.
 
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed summary judgment in favor of plaintiff, finding that any differences between plaintiff’s and his coworker’s testimony did not contradict plaintiff’s testimony that he was injured while lowering a 500-pound steel bedplate down a flight of stairs.
 
PRACTICE POINT: Where the record establishes a failure to provide the injured worker with devices offering adequate protection against the gravity-related risks of moving an extremely heavy object down a staircase, leading to the worker’s loss of control over the object’s descent, and plaintiff’s injuries, then summary judgment under Labor Law § 240(1) is warranted (see Runner v New York Stock Exch., Inc., 13 NY3d 599 [2009]).
 
Labor Law § 241(6) (TPW)
The First Department declined to address the Labor Law § 241(6) claim given its finding on the Labor Law § 240(1) claim.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department held that summary judgment was properly denied as there were questions of fact under both the “means and methods” and “dangerous premises condition” theories of liability. As for means and methods, both plaintiff and the building superintendent testified that Dunwell employees were not allowed to bring materials into the building through the lobby but were required to take them down the stairs where the accident occurred. Plaintiff and the superintendent also testified that it would have been safer for them to bring materials into the building through the lobby. Failing that, they should have been supplied with rigging equipment to lower their materials safely down the stairs. As for dangerous condition, defendants submitted no evidence of their inspection and maintenance activities on the day of plaintiff’s accident, so they could not contradict plaintiff’s testimony regarding dirt, gravel, or debris on the steps, by demonstrating none was present when the stairs were last inspected or cleaned.
 
 

Gomez v Trinity Ctr. LLC
June 15, 2021
Appellate Division, First Department

 
Plaintiff, a construction worker, fell between sixteen and twenty-four feet to the ground, when the corrugated metal flooring of the sidewalk bridge, on which he was standing while dismantling the bridge, bent downward, causing him to fall. Plaintiff testified that he was wearing a harness but that the sidewalk bridge did not have a lifeline to which he could attach the safety line, which was seven to nine feet long. The trial court granted plaintiff’s motion for partial summary judgment under Labor Law § 240(1) and denied defendant Trinity’s cross-motion for summary judgment dismissing the claim.
 
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed, rejecting Trinity’s sole proximate cause argument. Its expert opinion was also vague and made no reference to evidence in the record. The expert stated that, if plaintiff’s movement was limited to nine feet, with his lanyard attached to the sidewalk bridge, he could still have performed his job. However, the expert failed to explain or indicate where on the bridge a tie-off would have been either practicable or safe, given the maximum range of the harness line.
 
PRACTICE POINT: An injured worker’s failure to use safety devices will not constitute the sole proximate cause of the accident, unless the worker knew that he or she “was expected to use them but for no good reason chose not to do so” (Gallagher v New York Post, 14 NY3d 83, 88 [2010]). In this case, plaintiff had a sufficient reason why he did not tie off his safety harness to a lifeline.
 
 

Hoxhaj v West 30th HL LLC
June 15, 2021
Appellate Division, First Department

 
Plaintiff, while installing a cover on a sprinkler in a ceiling, fell to the ground when the unsecured ladder on which he was standing, with one foot on the ladder’s top, and the other foot one rung below, allegedly began to wobble and he lost his equilibrium. The trial court denied plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim. 
 
Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court, and granted summary judgment to plaintiff, whose testimony established a prima facie violation of § 240(1), in that he was not supplied with adequate protection under the statute and this violation was a proximate cause of his injuries. Given plaintiff’s undisputed testimony, any alleged misuse by him constituted, at most, comparative negligence, which is not a defense under Labor Law § 240(1).
 
PRACTICE POINT: Testimony that a worker was caused to fall from a ladder which wobbled, moved, flipped, and flopped, causing injuries, sets forth a prima facie violation of Labor Law § 240(1).
 
 

Corona v HHSC 13th St. Dev. Corp.
June 17, 2021
Appellate Division, First Department

 
Plaintiff was injured, during his employment in the deconstruction and disassembly of a sidewalk bridge, when he allegedly stepped onto two stacked, wet two-by-fours that slipped out from under him, and fell onto the sidewalk abutting defendants’ property. The trial court granted defendants HHSC 13th Street Development, 13th Street Associates, H.E.L.P. USA, Genesis at 13th, and Genesis Apartments’ motion for summary judgment dismissing the complaint as against them, and, in effect, upon a search of the record, dismissed the third-party complaint. 
 
Labor Law § 240(1) (MAS)
The First Department held the trial court correctly dismissed the Labor Law § 240(1) claim because plaintiff’s fall was not the result of an elevation-related risk, against which he was not properly protected (see Armental v 401 Park Ave. S. Assoc., LLC, 182 AD3d 405, 406 [1st Dept 2020]; see generally Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001]).
 
PRACTICE POINT: Labor Law § 240(1) does not cover “the usual and ordinary dangers of a construction site” such as a fall allegedly caused by stepping on wet two-by-fours, on the sidewalk, which then slipped out from under him.
 
Labor Law § 241(6) (TPW)
The First Department affirmed the trial court’s dismissal of the Labor Law § 241(6) claim predicated on a violation of Industrial Code (12 NYCRR) § 23-1.7(e)(2) because the tree guard was a permanent fixture of defendants’ property and, therefore, bore no relation to “the work being performed”. Further, the claim based § 23-5.1(h) was also properly dismissed as the alleged absence of a “designated person” was not a proximate cause of the accident.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department held that summary judgment under § 200 and common-law negligence was premature, since “it appear[s] . . . that facts essential to justify opposition may exist but cannot . . . be stated” (CPLR 3212[f]) because they lie within defendants’ exclusive knowledge. In response to discovery, defendants served a response to a notice to admit, in which they admitted installing, designing, and constructing the subject tree guard. In support of their motion for summary judgment, however, (which was filed before defendants were deposed, and before discovery had concluded) defendants submitted an affidavit from their former director of operations, in which he testified that they never had anything to do with the tree guard and never received any complaints about it. Thus, further discovery was appropriate, and the motion should have been denied, without prejudice to renew upon completion of discovery.
 
 

Sanchez v 1 Burgess Rd., LLC
June 17, 2021
Appellate Division, First Department

 
Plaintiff testified that he fell twenty feet to the ground when scaffold planks on which he was working broke or came loose. The trial court granted plaintiff’s motion for partial summary judgment on the Labor Law § 240(1) claim.  
 
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed, as plaintiff’s testimony was prima facie evidence that his injuries were proximately caused by a violation of the statute. Whether plaintiff fell six, eight, or twenty feet, or whether he fell directly through the middle of the scaffold, is not dispositive, since the statute was violated under any version of the accident. Plaintiff was not required to demonstrate a specific defect in the scaffold, and a lack of certainty as to exactly what preceded his fall did not raise issues of fact. Even if plaintiff improperly removed nails from scaffold planks while kneeling on them, in an attempt to perform his assigned task of raising the planks, this was, at most, comparative negligence.
 
The pre-care medical report by a paramedic, setting forth a statement by plaintiff as to how the accident occurred, was inadmissible, since defendant failed to show “that the translation was provided by a competent, objective interpreter, whose translation was accurate” (Nava-Juarez v Mosholu Fieldston Realty, LLC, 167 AD3d 511, 512 [1st Dept 2018]), and failed “to demonstrate an acceptable excuse for its failure to meet the strict requirement of tender in admissible form.”
 
PRACTICE POINT: A Defendant cannot successfully oppose a motion for summary judgment without evidence in admissible form.
 

Bosquez v RXR Realty LLC
June 22, 2021
Appellate Division, First Department

 
Plaintiff commenced his action against Hunter Roberts, RXR Pier 57, Super P57, and others, asserting claims sounding in violations of the Labor Law and common-law negligence. Defendants/third-party plaintiffs (Hunter Roberts, RXR Pier 57, and Super P57) commenced the third-party action against Global, seeking, among others, contribution and common-law indemnification from Global, the injured plaintiff's employer. Global moved, pursuant to CPLR 3211(a)(7), to dismiss the third-party complaint for failure to state a cause of action or, alternatively, for summary judgment pursuant to CPLR § 3212. Global asserted, among other things, the common-law indemnity and contribution claims are barred by the anti-subrogation rule, because Global is entitled to coverage under the same CCIP GL Tower policies as third-party plaintiffs. The trial court granted third-party defendant Global’s motion to dismiss the third-party complaint, only to the extent of barring the claims until the liability limits of the CCIP Commercial General Liability policy issued by Arch Insurance Company and the CCIP Corridor Excess policy issued by National Union Fire Insurance Company were exhausted.
 
Indemnity Issues in Labor Law (BFM)
The First Department affirmed the trial court’s ruling that, once the limits of liability of the Arch GL Policy and AIG Corridor Excess Policy are exhausted, third-party plaintiffs’ indemnification and contribution claims could proceed against Global.
 
The trial court found that two AIG excess policies, the AIG Lead Excess Policy and the AIG High Excess Policy, were not implicated by the anti-subrogation rule. These excess policies contain an “Employer's Liability Exclusion Endorsement” that provides: “This Insurance does not apply to any liability arising out of Bodily Injury to an employee in the course of employment, where the obligation of any underlying insurer or self-insurance mechanism providing employer's liability coverage for the Insured is by law unlimited.” As the Workers’ Compensation/Employer's Liability policy issued by Arch to Global provided for unlimited coverage for a worker's “grave injury”, the Court found that the endorsement in the AIG Excess Policies unambiguously excluded Global, as plaintiff's employer, from coverage under those policies. Accordingly, the First Department held that the anti-subrogation rule was not implicated as to those specific excess policies.
 
 

McVicker v Port Auth. of N.Y. & N.J.
June 24, 2021
Appellate Division, First Department

 
Upon completing the assembly of a cylindrical rebar column weighing 1,000 pounds, plaintiff’s fellow ironworkers pushed the column down a ramp, from its resting position atop two sawhorses, to the ground below. Plaintiff was struck by the heavy rolling column when he inadvertently walked into its path. The trial court denied plaintiff’s motion for partial summary judgment under Labor Law § 240(1) and denied defendants’ motion for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims.
 
Labor Law § 240(1) (MAS)
The First Department reversed the trial court and granted plaintiff summary judgment, as the record conclusively demonstrated that the column that hit plaintiff constituted a “load that required securing,” and that no appropriate safeguard, such as a hoisting device, barrier, or exclusion zone, was utilized. Therefore, plaintiff’s proof established that the statute was violated, and that the violation was the proximate cause of plaintiff’s injuries.
 
PRACTICE POINT: With respect to falling objects, the statute applies where the falling of an object is related to a “significant risk inherent in the relative elevation at which materials or loads must be positioned or secured (Rocovich v Con. Ed. Co., 78 NY2d 509, 514 [1991]). A plaintiff must show that the object fell while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute, or that the falling object required securing for purposes of the undertaking (Quattrocchi v F.J. Sciame Constr. Corp., 11 NY3d 757 [2008]).
 
Labor Law § 241(6) (TPW)
The First Department declined to address the Labor Law § 241(6) claim, as it was deemed “academic,” given the conclusive determination that Labor Law § 240(1) was violated.
 
 

Hayek v Metropolitan Transp. Auth.
June 29, 2021
Appellate Division, First Department

 
Plaintiff was allegedly struck by an improperly hoisted or inadequately secured load of L-shaped steel rebar, weighing between 2,000 and 3,000 pounds, while performing construction work at defendant Metropolitan Transportation’s Eastside Access project, below Grand Central Terminal. The trial court denied plaintiffs’ motion for partial summary judgment on the Labor Law §§ 240(1) and 241(6) claims against Metropolitan Transportation, the NYC Transit Authority, Metropolitan Transit Authority (Capital Construction Company) and Tutor.
 
Labor Law § 240(1) (MAS)
The First Department unanimously reversed and granted plaintiff’s motion, as his evidence demonstrated entitlement to summary judgment under Labor Law § 240(1). In opposition, the defendants failed to raise a triable issue as to the statutory violation and whether plaintiff’s conduct was the sole proximate cause of his injuries. As it is undisputed that plaintiff was following the directions of his foreman at the time of injury, plaintiff’s conduct could not be the sole proximate cause of his injuries.
 
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, plaintiff’s conduct could never be deemed the sole proximate cause of his injuries where he was merely following his foreman’s directions.
 
Labor Law § 241(6) (TPW)
The First Department unanimously reversed, holding plaintiff was entitled to partial summary judgment as to liability under Labor Law § 241(6). Specifically, Industrial Code § 23-8.1(e)(3) was violated in that spreader bars were not in place while hoisting the load of rebar, despite it being twenty feet in length; and that the load was not boxed, violating § 23-8.1(e)(4). As it is undisputed that the load of rebar suddenly accelerated and fell on top of plaintiff, § 23-8.1(f)(2)(i) was also violated; and the load was not properly secured and balanced, which resulted in the load suddenly accelerating and falling on top of plaintiff, in violation of § 23-8.1(f)(1)(iv).
 
 

New York State Thruway Auth. v Ketco, Inc.
June 2, 2021
Appellate Division, Second Department

 
Ketco was the general contractor on a highway construction project undertaken by the NYSTA. The NYSTA entered into a separate contract with Liro, as an engineering consultant, to provide oversight of Ketco’s compliance with its contract with the NYSTA. In connection with the project, Ketco subcontracted with third-party defendant Conrad, an environmental consultant, to have Conrad prepare environmental safety plans as required by the NYS DEC, since the location of the project contained a landfill that was known to be contaminated by hazardous waste. The subcontract between Ketco and Conrad provided that Conrad would indemnify Ketco for claims “caused in whole or in part by (a) negligent acts or omissions, or (b) violations of regulatory or statutory provisions of the New York State Labor Law, OSHA or other governing rule or applicable law” by Conrad.

Four Ketco employees who had been working at the highway construction project, driving dump trucks and filling the trucks with soil from the area of the landfill, complained of dizziness while working, and were taken to a nearby hospital for treatment. Thereafter, the four Ketco employees each commenced a claim in the Court of Claims against, among others, the NYSTA, to recover damages for personal injuries, and they collectively commenced an action against Conrad and Liro to recover damages for personal injuries. The trial court denied Conrad’s motion for summary judgment, in effect, declaring that it is not obligated to defend and indemnify the defendant third-party plaintiff in the main action.
 
Indemnity Issues in Labor Law (BFM)
The Second Department reversed the trial court’s denial of Conrad Geoscience Corp.’s motion for summary judgment holding that Conrad Geoscience was not obligated to defend and indemnify the defendant third-party plaintiff in the main action.

Several days prior to the trial court’s denial of Conrad’s motion, the court granted Conrad’s motion in the underlying action for summary judgment dismissing the complaint in that action. The Second Department noted that it had affirmed said determination in a prior appeal, in which it had concluded that “Conrad submitted evidence that, as the entity charged with creating environmental safety plans, it exercised no supervisory authority at the highway construction project work site and owed no duty of care to the plaintiffs. Based upon Ketco's concession in its papers submitted in opposition to Conrad’s motion for summary judgment in this action, Conrad argued that Ketco was collaterally estopped from seeking contractual indemnification against it. The Second Department agreed, holding that, under the circumstances, Ketco, which was clearly in privity with the Ketco employees, was bound by the prior determination of Conrad's nonliability for the Ketco employees' alleged injuries. Accordingly, Conrad was not obligated to defend and indemnify Ketco in the main action.

 

Cain v Ameresco, Inc.
June 9, 2021
Appellate Division, Second Department

 
Plaintiff, a controls technician employed by County Energy Controls, a subcontractor performing work for the general contractor, Ameresco, was installing temperature controls in a mechanical room located above the pool office at a high school. This mechanical room was accessed, through an opening in the ceiling of the pool office twelve feet from the floor, by use of a ladder affixed to the wall of the pool office. The opening had a steel hatch door that opened into the mechanical room. The top of the ladder fell short of the mechanical room floor.
 
Plaintiff fell from the mechanical room to the floor of the pool office, when his foot slipped off the affixed ladder, as he was descending through the opening from the mechanical room to the pool office below. The trial court granted the District’s motion for summary judgment dismissing the Labor Law §§ 241(6) and 200 and common-law negligence claims and denied plaintiffs’ motion for partial summary judgment under § 240(1) or, in the alternative, to impose sanctions against the District for spoliation of evidence.
 
Labor Law § 240(1) (MAS)
The Second Department affirmed denial of plaintiffs’ motion, finding plaintiffs failed to establish prima facie either that there was a violation of Labor Law § 240(1), or that the injured plaintiff was not the sole proximate cause of the accident. Plaintiffs submitted deposition testimony of two District employees, who testified that, on the date of the accident, they wrote incident reports stating that plaintiff told them, immediately after his fall, that he had forgotten that he covered the opening to the mechanical room with cardboard and stepped on it. Since plaintiffs failed to meet their burden, the court did not even consider the sufficiency of the opposition papers.
 
PRACTICE POINT: If an injured worker’s own evidence demonstrates that there are triable issues of fact as to how the accident occurred, then it cannot be concluded, as a matter of law, that the alleged failure to provide the injured worker with proper protection proximately caused his or her injuries, and he will not be entitled to summary judgment under Labor Law § 240(1).
 
Labor Law § 241(6) (TPW)
The Second Department affirmed the trial court’s granting of summary judgment to the District under Labor Law § 241(6), which “imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers”.  The District established, prima facie, that the Industrial Code provisions cited by plaintiffs were either not applicable to the underlying facts or not sufficiently specific to support a Labor Law § 241(6) claim.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department first held that the trial court improperly granted summary judgment on the Labor Law § 200 and common-law negligence claims based on the grounds they were duplicative of the § 240(1) claim, as plaintiffs may assert alternative Labor Law claims. Further, the Court found the District failed to meet its burden of establishing entitlement to judgment as a matter of law on these “dangerous condition on the premises” claims as it failed to demonstrate, that it did not create or have constructive notice of the allegedly dangerous condition.
 

Llamas v Yu Yu Chen
June 9, 2021
Appellate Division, Second Department

 
Plaintiff was employed by a nonparty contractor, to work on a project involving exterior brick and tile work, at premises owned by defendant. On the day of the accident, plaintiff was assigned to power-wash the chimney at the premises. He was not supplied with gloves and, allegedly, while he was performing his work, the solution in the power-washer, which contained a corrosive substance, dripped onto his hands, causing severe burns. The trial court denied defendant’s motion seeking dismissal of the claims for Labor Law § 241(6) predicated on an alleged violation of Industrial Code § 23-1.8(c)(4), and common-law negligence.
 
Labor Law § 241(6) (TPW)
The Second Department affirmed that portion of the trial court’s decision denying defendant’s motion for summary judgment, as the evidence submitted on the motion failed to eliminate triable issues of fact as to whether the activity in which plaintiff was engaged at the time of the accident was part of a broader construction or demolition project taking place at defendant’s premises, so as to come within the protection of Industrial Code § 23-1.4(b)(13). Further, the court properly denied that branch of defendant’s motion predicated on § 23-1.8(c)(4), without regard to the sufficiency of plaintiff’s opposition papers.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department reversed, holding the trial court should have granted the motion on this claim because defendant demonstrated plaintiff’s claim arose out of the means and methods of the work, and she did not have the authority to supervise or control that work.
 
 

Mowla v Baozhu Wu
June 9, 2021
Appellate Division, Second Department

 
Plaintiff, while working at a single-family residence owned by defendant, was climbing up an extension ladder in order to gain access to the roof of a garage to clean various brick columns. He reached out with his right hand and attempted to grab a brick column in order to facilitate his movement onto the roof, when the brick column fell apart, he lost his balance, and fell to the ground. The trial court denied defendant’s motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed, finding defendant failed to establish that the alleged dangerous condition did not exist for a sufficient length of time to afford him a reasonable opportunity to discover and remedy it, nor that the alleged dangerous condition was latent (i.e., that it could not have been discovered upon reasonable inspection).

 

Kauffman v Turner Constr. Co.
June 30, 2021
Appellate Division, Second Department

 
Plaintiff was employed as a labor shop steward with nonparty, Pirraglia. Part of plaintiff’s responsibilities included operating a masonry table saw and a chopping gun. He commenced suit, alleging, among other things, that he suffered hearing loss while operating that equipment without proper protection, due to defendant’s negligence, which plaintiff claimed was one of the entities responsible for supervising the construction site. Plaintiff alleged violations of Labor Law §§ 241(6) and 200, as well as common-law negligence. 

The trial court denied defendant’s motion for summary judgment dismissing the complaint, and plaintiff’s cross-motion for leave to amend the bill of particulars to include allegations that defendant was vicariously liable as a partner in the joint venture that was the general contractor at the subject project. The trial court also denied the cross-motion on the grounds that plaintiff failed to explain his delay in seeking to amend the bill of particulars. Subsequently, a note of issue was filed prior to the completion of discovery. The trial court vacated the note of issue due to outstanding discovery. Plaintiff then served an amended bill of particulars alleging that defendant was vicariously liable as a partner in the joint venture. The trial court then granted defendant’s second motion for summary judgment dismissing the complaint.

Labor Law § 241(6) (TPW)
Despite not addressed by the trial court, the Second Department held the alternative ground for affirmance of defendant’s motion for summary judgment in determining that defendant established prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 241(6) claim by demonstrating that the Industrial Codes cited by plaintiff were either inapplicable to the facts of this case or lacked the specificity required to qualify for a basis for liability under that statute.

Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department, in this “means and methods” case, found that defendant established its entitlement to summary judgment by demonstrating the accident was caused by the means and methods of the plaintiff’s work, that plaintiff’s work was directed and controlled by his employer, and that defendant had no authority to exercise supervisory control over plaintiff’s work. Although there was some evidence that defendant had some general supervisory authority over the project, such general authority is insufficient to impose liability.
 
 

Matter of Davis v Incorporated Vil. of Laurel Hollow
June 30, 2021
Appellate Division, Second Department

 
In August 2018, petitioner fell from a roller he was operating, while engaged in paving operations located within Laurel Hollow, which is in the Town of Oyster Bay. The Village of Oyster Bay Cove Police Department (OBCPD) responded to the accident scene. As a result of the accident, petitioner sustained a depressed skull fracture and a subdural hematoma with midline shift and underwent an emergency craniotomy. He allegedly has been continuously hospitalized and confined to a bed and a wheelchair, cannot speak, and is fed through a feeding tube.  Due to a mistaken belief as to which municipality owned the location of the accident, petitioner’s attorneys initially sued the County of Nassau, the Village of Oyster Bay Cove, and the Town. However, in April 2019, petitioner’s attorneys allegedly learned for the first time that the accident location was in Laurel Hollow. Accordingly, in April 2019, petitioner’s attorneys served a notice of claim on Laurel Hollow, alleging Labor Law violations. The trial court granted petitioner’s petition to sue Laurel Hollow and deem their late notice of claim timely served, nunc pro tunc.

Labor Law § 240(1) (MAS)
In determining whether to grant leave to serve a late notice of claim or deem a late notice of claim timely served, nunc pro tunc, pursuant to General Municipal Law § 50-e(5), the court must consider all relevant circumstances, including: (1) whether the public corporation has acquired actual knowledge of the essential facts constituting the claim within 90 days from its accrual or a reasonable time thereafter; (2) whether the delay substantially prejudiced the public corporation in defending on the merits; and (3) whether claimant has demonstrated a reasonable excuse for failing to serve a timely notice of claim. The presence or absence of any factor is not determinative.
 
Here, the Second Department affirmed the order granting the petition because petitioner’s incapacitating injuries constituted a reasonable excuse for the delay in serving Laurel Hollow with a notice of claim. In opposition, Laurel Hollow failed to come forward with particularized evidence demonstrating that it would be substantially prejudiced by the delay, and petitioner established that Laurel Hollow would not be prejudiced by the delay.
 
PRACTICE POINT: For a municipality to successfully oppose a motion seeking leave to deem a late notice of claim timely served, it must submit proof of substantial prejudice based on specific factual citations. Generic allegations and inferences are insufficient.
 
 

Lorica v Krug
June 10, 2021
Appellate Division, Third Department

 
Plaintiff was employed by third-party defendant, G & C, and sustained injuries when he fell while working at a construction site, owned by defendant, Jeremy Krug, and managed by defendant, The Krug Group Corp. Defendants filed a third-party action against G & C seeking contractual and common-law indemnification. After answering, G & C moved for summary judgment dismissing the third-party complaint. G & C submitted a hold harmless agreement, dated January 1, 2016, that is signed by its president, Frank Lorica, and by the bookkeeper for The Krug Group Corp. In his deposition testimony and affidavit, Lorica asserted that he signed the document on May 17, 2016 — five days after plaintiff’s accident. The trial court, among other things, dismissed the common-law indemnification claim, but partially denied the motion by finding that questions of fact exist as to contractual indemnification.
 
Indemnity Issues in Labor Law (BFM)
Lorica placed his signature on a line next to where the January 1, 2016, date had been typed in (despite having apparently signed it on May 17, 2016) and he never objected to such date. The agreement is silent as to retroactivity, but the date placed thereon could be interpreted as its intended effective date. On the other hand, Lorica asserted that he never intended retroactivity, and the agreement itself does not address retroactivity or explicitly state its effective date. Considering the above, the Third Department held that G & C failed to meet its initial burden on its summary judgment motion, as questions of fact existed as to whether the parties had entered into an indemnification agreement prior to plaintiff's accident and whether they intended the written agreement to apply retroactively.
 
 

Abreu v Rodriguez
June 17, 2021
Appellate Division, Third Department

 
Plaintiff, a construction worker employed by third-party defendants, sustained injuries when he fell from an allegedly defective aluminum ladder owned by defendants, while performing work at defendants’ residence. The trial court denied defendants motion for summary judgment on the Labor Law § 200 claim and granted plaintiff’s cross-motion on that claim.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Third Department affirmed in this “dangerous condition on the premises” case, because plaintiff demonstrated that defendant, Jose Rodriguez, created the dangerous condition that caused his fall. On the day of the fall, plaintiff was assigned the task of closing a hole in the basement ceiling where a staircase had been removed. To do so, plaintiff had to use an aluminum ladder, supplied by Rodriguez. While standing on the ladder, it collapsed, causing plaintiff to fall and injure himself. Post-accident photographs of the ladder showed the sides of the ladder had buckled. Plaintiff testified that no one, including Rodriguez, told him the ladder was unsafe or he should not use it. Rodriguez’s admittedly owned the ladder and informed plaintiff and plaintiff’s employer that they could use anything that was in Rodriguez’s garage, which is where the ladder was kept. Rodriguez was aware that plaintiff was using the ladder. Rodriguez also admitted that the ladder was “not safe” and that he told “them” it was not safe. However, he did not deny that he, nevertheless, allowed the workers to use it. Based on this, the court held plaintiff established that Rodriguez had actual or constructive notice of the dangerous condition of the ladder, which he owned, and that he failed to remedy the dangerous condition, despite his ability to do so.
 
 

Baum v Javen Constr. Co., Inc.
June 11, 2021
Appellate Division, Fourth Department

 
Plaintiff fell on a path, covered by ice and snow, while carrying elevator rails to be installed at a construction project. Defendant acted as the general contractor on the project and hired plaintiff's employer to install an elevator for the project. After the trial court granted plaintiff’s motion for partial summary judgment on the issue of liability under Labor Law § 241(6) and denied defendant’s cross-motion to dismiss that same claim, the case proceeded to trial solely on the issue of damages. The jury returned a verdict awarding plaintiff damages.
 
Labor Law § 241(6) (TPW)
The Fourth Department unanimously vacated the trial court’s decision, as it determined the trial court erred in granting plaintiff’s motion for partial summary judgment on liability under Labor Law § 241(6). Although it was acknowledged that defendant had a nondelegable duty to keep the pathway safe and free of ice and snow, the court found triable issues of fact existed as to whether defendant, by salting the pathway several hours before the accident, discharged that duty.
 
The trial court also erred in granting plaintiff’s request to preclude defendant from introducing any evidence of plaintiff's comparative fault, with respect to the Labor Law § 241(6) claim, at the damages trial. It determined that defendant was precluded from offering evidence of plaintiff's comparative fault, because it improperly held that issue had been decided when the court granted plaintiff’s motion. Contrary to the trial court's determination, however, the Fourth Department reaffirmed that consideration of comparative fault is still required, even “[w]hen a defendant’s liability is established as a matter of law before trial,” because the jury must still “determine whether the plaintiff was negligent and whether such negligence was a substantial factor” in causing plaintiff’s injuries. 
 
 

Ramsden v Geary
June 11, 2021
Appellate Division, Fourth Department

 
Defendant purchased the home in 1998 for his daughter and her future husband, plaintiff. The parties had a verbal, rent-to-own, agreement that was later reduced to writing in 2009. Pursuant to that agreement, defendant’s daughter and plaintiff made monthly payments to defendant consisting of the mortgage, insurance, and taxes on the property and, when the balance of the mortgage was paid in full, defendant would sign the house over to plaintiff. In 2012, defendant was notified by the homeowner’s insurance company that a new roof was needed on the house, and defendant informed plaintiff of that fact. Plaintiff decided to install a metal roof on the property and purchased the materials. In 2014, plaintiff was installing the new roof, with the assistance of his brothers, when he stepped on an unsecured metal roofing panel and fell to the ground below. The trial court denied plaintiff’s motion for partial summary judgment and granted defendant’s cross-motion for summary judgment dismissing the complaint.
 
Labor Law § 240(1) (MAS)
The Fourth Department unanimously affirmed dismissal, as defendant established his entitlement to the homeowner’s exemption from the duties imposed under Labor Law §§ 240(1) and 241(6) as “owners of one and two-family dwellings who contract for but do not direct or control the work”. In this case, defendant established that plaintiff purchased materials, was the beneficiary of the work, and controlled when and how the work was performed. Defendant also did not derive a commercial benefit from the property or use the property for a commercial purpose. In opposition, the court held plaintiff failed to raise a triable issue of fact with respect to the homeowner’s exemption.
 
The court additionally held plaintiff was a volunteer, as plaintiff was not hired by defendant, nor was he paid for his work, and was not fulfilling an obligation to defendant at the time of the accident. Any obligation that plaintiff perceived he had to install the roof was the result of the homeowner’s insurance company threatening to cancel the insurance if a new roof were not installed, which, according to plaintiff and defendant’s daughter, would require defendant to sell the house and cause plaintiff to lose his investment. Contrary to plaintiff’s contention, therefore, the new roof installation was not an obligation imposed by defendant.
 
PRACTICE POINT: Owners of one- or two-family homes who do not supervise, direct, or control the injury-producing work, generally are not valid Labor Law defendants. This case is like one of David’s opening hypotheticals and serves as a reminder of the four criteria of a Labor Law claim: appropriate plaintiff, appropriate defendant, appropriate project, and elevation related/gravity related risk. Not only was the defendant here not an appropriate Labor Law defendant, but plaintiff was a volunteer, not a person “so employed,” and thus, not a valid Labor Law plaintiff.
 
 

Kammerer v Mercado
June 17, 2021
Appellate Division, Fourth Department

 
Plaintiff was injured when a caustic substance fell on her while she was working in defendant property owner’s building. Plaintiff's employer, codefendant Medley, was a contractor hired to perform work in the building. At the time of the incident, plaintiff and Medley were attempting to fix a clogged pipe. Plaintiff was on the first floor of the building, standing on a makeshift scaffold, and holding the pipe. Medley was on the second floor and, when he cut the pipe, liquid in the pipe fell on plaintiff and caused burns to her face, neck, arms, and body. The trial court granted the property owner’s cross-motion for summary judgment dismissing the complaint.
 
Labor Law § 240(1) (MAS)
The Fourth Department unanimously affirmed dismissal of this claim. Plaintiff’s injury was not caused by a hazard against which the statute was intended to protect, but rather was injured by a substance that fell from the pipe, and the substance in the pipe “was not a material being hoisted or a load that required securing” for purposes of the undertaking.
 
PRACTICE POINT: This is one of our cases here at H&F.  It is a unique fact pattern, based on the unusual “load” at issue.  If you want to know more about it, and our Labor Law analysis, give me a call or email me.  
 
Labor Law § 241(6) (TPW)
The Fourth Department unanimously affirmed summary judgment in favor of defendant’s motion for summary judgment dismissing the complaint against it. It was determined that the trial court properly granted defendant’s motion with respect to the Labor Law § 241(6) claim.  Assuming that plaintiff was engaged in repair work subject to the protections of § 241(6) at the time of her injury, it was determined that plaintiff failed to establish a violation of 12 NYCRR 23-1.8 (c)(4) because she was not required to “use or handle” the substance in the pipe within the meaning of that regulation. 
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Fourth Department did not address the appeal from the order granting dismissal of the § 200 and common-law negligence claims. Instead, it merely noted that plaintiff abandoned her appeal with respect to those claims, inasmuch as she failed to address them in her brief.

 

 New York Industrial Code Regulations (EDA)

12 NYCRR 23-1.21(e)(5)(iv) Metal ladder steps. Metal ladder steps of any stepladder shall be corrugated, knurled, dimpled, coated with skid-resistant materials or otherwise constructed or treated to minimize slipping.

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

 

23–1.21(e)(5)(iv) 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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