Labor Law Pointers - Volume XI, No. 10

Volume XI, No. 10 Wednesday, September 7, 2022
 Note from David R. Adams:
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.    Labor Day has passed, and the summer is winding down quickly. Courts are picking up the pace, and more decisions are coming soon.    This month we have a guest author: longtime reader and first-time contributor C. Briggs Johnson, who argued our first case of the month, Ruisech v Structure Tone Inc. in the First Department, and offers his take on the decision. It is always interesting to hear from the attorney who argued the case. Briggs is an appellate attorney with Gallo Vitucci Klar in Westchester. I watch many of the oral arguments when there is a decision I particularly wonder about, but it is always nice to hear it from the horse’s mouth. On to our photos of the month... In our first offering, the plaintiff is a plumber, on site to install new water lines in a structure being renovated by the owner so that he can live there. The structure was a hardware store, and no one had ever lived there, as it had always been a strictly commercial building. The hardwood floor was in the process of being resurfaced, when the flooring contractor found some of the supporting joists needed to be replaced, and the only way to access them was to cut a hole in the floor; so, he did. That hole was allowing dust from the resurfacing to drift down to the floor below, so they covered it with bright green cardboard so everyone could see it. When the plumber was walking across the floor, he noticed that there was some type of cardboard on the floor but saw no reason he couldn’t walk right across it. The cardboard, obviously, could not support him, and his foot and leg went through, causing injury.  § 240(1) case?  
As always, let’s explore the necessary elements: The plaintiff was a person so employed. The project, construction, is a valid project. The injury was caused by the application of gravity, and the contractor who placed the cardboard is a valid defendant.  The owner, who was in the process of converting a commercial property to a residential property is entitled to the homeowner’s exemption, as the intent was to create a residential property. The fact that the plaintiff did not fall all the way through the cardboard does not matter, as the injury was caused by the application of gravity.  § 240(1) summary judgment awarded to the plaintiff.   In the next photo, the owner of a restaurant hired a painting contractor to paint the interior of the building. Unfortunately, the painters each thought someone else was bringing the ladders, which had been carefully set out at the shop for their use. So, they had to stack up the tables to reach the higher portions of the walls; despite their training never to do such a thing. All three of them stacked the tables together to reach such a dizzying height. It came as a complete surprise to all involved when the stack fell over and the painter on top fell to the floor and was injured. Is that a § 240(1) case?
The necessary elements are met for a prima facie case. The owner of the restaurant is a proper defendant, the plaintiff is a person so employed, the project, painting, is a protected activity, and the injury was clearly caused by the application of gravity. The defendant argues sole proximate cause, but to what effect? First, we will review the necessary elements of the defense. The plaintiff must have 1) an appropriate safety device which is 2) available to the plaintiff which he 3) fails to use or misuses after he was 4) instructed to use or knew he should use the safety device 5) and does so for no good reason. Here, the sole proximate cause defense fails for 2 reasons. For the appropriate safety device to be deemed available, it must be at the work site, not back at the shop, in virtually every instance. Secondly, the stacking of the tables was conducted by all the workers and, thus, the plaintiff’s actions were not the SOLE proximate cause of the accident.   In the third photo, the workers, who were demolishing an exterior stairway on an apartment building, were injured when their actions caused the entire stairway to collapse, and both fell to the ground.  § 240(1) case?
The question in this scenario is whether a safety device was needed where the intent of the project, demolition of the stairs, actually occurred, but caused the injury. The plaintiff’s argument is that the stairs were not intended to completely come down at that point in time and the defendant argues that the demolition of the stairs was exactly when the plaintiff intended and thus what safety device could logically have been used to prevent what was intended. This scenario occurs often in these demolition cases, where ceilings and walls come down suddenly, causing injury. The result is based on the particular set of facts of each case. In the instant case, the fact that the plaintiff was standing on the stairs would seem a clear indication that he did not intend the entire stairs to fall, and the odds are that summary judgment would be awarded to the plaintiff, or at least not awarded to the defendant, and a question of fact would result. The use of a good expert is necessary in such cases.   In our final photo, we have workers trying to get an A-frame ladder to the roof to repair a failed chiller unit. Rather than follow any type of safety training (all 3 of these gentlemen are OSHA 10 and 30 trained), they think that having one of them, Larry, I think, used the internal stairs to reach the roof and leaned over to grab the ladder, that Curley is carrying up another extension ladder, which extension ladder was braced at the ground by Moe. When the ladder is high enough for Larry to grab the ladder, he starts to lift it to the door when he loses his grip, and drops the ladder right on Curley, and both Curley and the ladder land on Moe.  § 240(1) case?
So here we have the dreaded combination case, a falling worker case, as Curley falls, and a double falling object case, as both the ladder and Curley fall on Moe. First Curley’s case: the ladder, which fell on him, was in the process of being hoisted and was not secured; thus, it is a prima facie case of § 240(1), and there is no sole proximate cause defense available. As to the falling worker aspect of the case, while not necessary as the falling object portion is so obvious, he is still not protected from falling by any safety device other than the ladder and, thus, likely summary judgment for the plaintiff, though the argument would be that the ladder performed its function, and it was the unforeseen hazard of a falling ladder that caused the fall, and that no safety device would have prevented the fall by the plaintiff. For Moe, again, the ladder was a falling object, which was being hoisted and was not secured, which results in a § 240(1) case.   That’s it for this month. Enjoy the newsletter and please share it with anyone who could benefit. As always, consider subscribing to our other newsletters below; all are great reads and very informative. 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. The Liberty Building 424 Main Street, Suite 1300 Buffalo, New York 14202 Phone:  716.849.8900 Fax:  716.855.0874 Email:  [email protected] HF Website:  www.hurwitzfine.com
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Ruisech v Structure Tone Inc. August 16, 2022 Appellate Division, First Department
By guest author Briggs Johnson: In this personal injury action, plaintiff claims that he fell over pebbles created during an ongoing construction project on the 19th Floor of a building located at 200 Park Avenue in Manhattan.  At that time, defendant 200 Park LP owned the building, and CBRE leased the 19th floor.  CBRE hired Structure Tone as the general contractor for the project, which hired plaintiff’s employer, A-Val, to perform glass work.    Plaintiff, a glazier, testified that when he fell, he was moving glass within open office space and that the glass was to divide a hallway and an interior office after the project was completed.  Plaintiff attributed his fall to pebbles on the floor, which were a necessary byproduct of the glass installation work being performed by his A-Val co-workers.   Plaintiff admitted that his co-workers from A-Val created these pebbles during their glass installation work – through A-Val’s track or channel work on the concrete floor, which was where the glass was to be installed.  In other words, the pebbles were created by the manner in which plaintiff’s employer performed its work, and thus the pebbles were inherent or integral to that work.   
Moreover, plaintiff, Structure Tone, and CBRE all testified that CBRE never directed, controlled, nor supervised any aspect of plaintiff’s work or the project – nor did CBRE have the authority to do so – and CBRE never provided plaintiff, or any other workers, with any of the tools, materials, or equipment.   Indeed, plaintiff testified that no one from CBRE was present on the day that he fell, and that he only received his work instructions from A-Val’s foreman.  Structure Tone also confirmed that every sub-contractor, such as A-Val, provided its own tools, materials, and equipment.     
Labor Law § 241(6) Based on the foregoing, the First Department modified the Order on appeal to dismiss plaintiff’s Labor Law 241(6) claim against CBRE and other defendants because the industrial codes relied upon were factually inapplicable – the pebbles were not “a slippery condition” nor a “foreign substance” within the meaning of Industrial Code section 23-1.7(d), and since the area where plaintiff fell was not a passageway within the meaning of section 23-1.7(e)(2) – and they were legally inapplicable because “the pebbles were debris that were an integral part of the construction work.”   PRACTICE POINT: My biggest take away or practice pointer is the part of the Order holding that “The integral to the work defense applies to things and conditions that are an integral part of the construction, not just to the specific task a plaintiff may be performing at the time of the accident” as plaintiff argued in his brief.  This confirms the broad scope of this LL 241(6) defense, to cover the entire construction project, not just plaintiff’s work.  Labor Law § 200 and Common-Law Negligence The Court then dismissed plaintiff’s Labor Law 200 and common-law negligence claims against CBRE because CBRE “established that [it] had no control over the means and methods plaintiff used in performing the work[,]” and since the “pebbles were not an existing defect or dangerous condition of the property, but rather were created by plaintiff’s employer’s work and the manner in which it was performed.”  Indemnity Issues in Labor Law Finally, the Court awarded CBRE contractual indemnity from Structure Tone.  The Court recognized that the agreement between these parties – which was extremely broad in scope – required Structure Tone to indemnify CBRE for any act, omission, fault or neglect of Structure Tone; or for any such act, omission, fault or neglect of one of Structure Tone’s subcontractors, which in this case means A-Val (plaintiff’s employer and the defendant that created the pebbles that plaintiff injured himself on).  
Morales v 50 N. First Partners, LLC August 3, 2022 Appellate Division, Second Department  
Plaintiff was working at an apartment complex owned by 50 North, as an employee of a nonparty, retained by the property's managing agent to oversee the final stages of the construction project. Bayport was the general contractor for the construction project at the property. According to plaintiff, he was responsible for installing stacked washer and dryer units in apartments in the property and allegedly was injured when he was installing a stacked washer and dryer unit at the property. On the day of his incident, he was standing on an inverted bucket in order to reach the power cable for the stacked washer dryer unit that he had just pushed into the closet before he plugged in the power cable. He contended that the power cable was resting on top of the dryer and was out of reach, and that the washer dryer unit, although on wheels, was difficult to move, so he stood on an inverted bucket to reach the power cable. The bucket slipped out from under him, and he fell. The trial court granted defendants’ separate cross-motions for summary judgment dismissing the Labor Law §§ 240(1), 200, and common-law negligence claims against each of them.
The Second Department affirmed dismissal of plaintiff’s 240(1) claim, since defendants each established that plaintiff was the sole proximate cause of his injuries, because his conduct unnecessarily exposed him to an elevation-related risk. Plaintiff’s testimony demonstrated that each of the stacked washer and dryer units he was installing was on wheels and not secured within the closet in which they were being installed. Prior to the incident, plaintiff installed 20 stacked washer and dryer units without using a ladder. With respect to the unit plaintiff was installing on the day of his incident, to reach the power cable, he could have moved the stacked washer and dryer out of the close rather than stand on an inverted bucket, but he chose not to do so.   PRACTICE POINT: Recall the four elements of a Labor Law § 240(1) claim: appropriate plaintiff; appropriate defendant; appropriate project; and elevation-related/gravity-related risk. Here, plaintiff could not establish the fourth prong. Liability under the statute will not attach where, as here, the record demonstrates that plaintiff did not need protection from the effects of gravity to perform his or her work.  
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed dismissal of plaintiff’s claims for violation of Labor Law § 200 and common-law negligence. Here, plaintiff alleged both a hazardous condition and “means and methods,” as bases for liability. Defendants, however, established that plaintiff’s accident did not result from an allegedly defective condition present at the work site. Moreover, defendants also separately established that they did not have authority to supervise or control the performance of plaintiff’s work.  
Murphy v 80 Pine, LLC August 3, 2022 Appellate Division, Second Department
Plaintiff, an employee of Empire, was installing office partitions and furniture at property owned by 80 Pine and managed by Rudin (the owners). While moving tools and materials from an area in which he had completed his work to the next work area, plaintiff fell and injured his knee when he allegedly tripped over a “stub up”, a portion of electrical conduit and the metal brace holding it, which was protruding from the floor. The trial court denied Electric’s, Systems’, the owner’s, and Structure Tone’s motions for summary judgment dismissing the Labor Law § 241(6) claim predicated upon 12 NYCRR 23-1.7(e)(1) and (2) and 23-1.30 and as to the Labor Law § 200 and common-law negligence claims. The trial court also denied those branches of the motions seeking dismissal of the crossclaims against Systems and Electric and that branch of the owners and Structure Tone’s motion for summary judgment on their crossclaim for contractual indemnification against Bigman, the electrical subcontractor. Labor Law § 241(6) (TPW)
The Second Department modified the trial court’s decision as to the Labor Law § 241(6) claim. Pursuant to 12 NYCRR 23-1.7(e)(1), “[a]ll passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping.” Section 23-1.7(e)(2) similarly requires that “[t]he parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed.” Plaintiff’s inconsistent testimony that he was walking in an "open area" and also “between the office units” at the time of this fall raised a triable issue of fact.  Further, defendants were unable to refute the applicability 12 NYCRR 23-1.30 which provides that work sites must have "[i]llumination sufficient for safe working conditions.” Plaintiff testified that it was “pretty dark” while none of the defendants proffered any evidence regarding the quality of the lighting.  As such, defendants were unable to eliminate triable issues of fact as to whether 12 NYCRR 23-1.7(e)(1) and (2) and 23-1.30 applied. Labor Law § 200 and Common-Law Negligence (ESB) The Second Department reversed the trial court’s decision and granted summary judgment to defendants, dismissing the claims for violation of Labor Law § 200 and common-law negligence, except for Electric, for which it affirmed denial of its summary judgment motion. In rendering its decision, the Court found that, in this “means and methods” case, it was undisputed that Bigman installed the stub up. However, it was Bigman’s practice to mark stub ups with caution tape, a cone, and/or spray paint both to alert workers to the hazard and to avoid the potential to damage the installation. Bigman’s representatives explained that, in the course of their work, other trades sometimes removed safety markings or, in the case of carpet installers, covered over the spray paint. There was no caution tape marking the stub up over which Murphy fell, although Bigman workers placed tape after the accident.    Since the owners and Structure Tone demonstrated that they merely had general supervisory authority over the project, the owners and Structure Tone established they could not be subjected to liability based upon unsafe work methods. Likewise, since Systems subcontracted its work to Electric, had no workforce of its own, and did not supervise Electric’s work, it also was entitled to summary judgment.   Electric, by contrast, installed cable through the stub ups, and its employees had been on site prior to Murphy’s fall. Electric failed to demonstrate that its employees did not remove the safety markings, and that it lacked supervisory authority or control over the replacement of any markings that had been removed. Accordingly, the trial court properly denied Electric’s motion for summary judgment as to Labor Law § 200 and common-law negligence. Indemnity Issues in Labor Law (BFM) The Second Department affirmed the trial court’s denial of that part of Electric’s motion for summary judgment seeking dismissal of Systems’ cross-claim against it for contractual indemnification, as Systems established that, pursuant to its contract with Electric, Systems was entitled to indemnification from Electric if Systems was held liable for Electric's negligence.  As Systems lacked any role in the work at issue, the Court found that Systems was entitled to summary judgment dismissing Bigman’s cross-claim against it for common-law indemnification and contribution.  Because the owners and Structure Tone failed to submit evidence of the alleged agreement for contractual indemnification between themselves and Bigman, the Court affirmed the trial court’s denial of that branch of their motion which was for summary judgment on their cross claim for contractual indemnification against Bigman.  
Flores v Crescent Beach Club, LLC August 10, 2022 Appellate Division, Second Department
  Plaintiff allegedly was injured while demolishing a rotting wooden pergola at the Crescent Beach Club in Bayville. At the time of the incident, plaintiff was standing on top of the pergola. He cut a piece of the pergola for demolition, and immediately thereafter, the piece he was standing on gave way and he fell to the ground. The trial court denied Lad’s motion for summary judgment dismissing the complaint, which alleged causes of action for violations of Labor Law 240(1), 241(6), 200 and common-law negligence against Lad, the general contractor.   Labor Law § 240(1) (MAS) The Second Department affirmed denial of Lad’s motion because Lad failed to establish that it was not acting as a general contractor or agent of the owner of the premises when the incident occurred. Lad’s owner was involved with the hiring of plaintiff’s employer for the pergola demolition and replacement, provided some oversight on the job, some direction to the workers, and was present at the time of the incident.   PRACTICE POINT: A party is a contractor subject to liability under Labor Law §§ 240(1) and 241(6) when it is responsible for coordinating and supervising the project and has a concomitant power to enforce safety standards and to hire responsible contractors. A party like Lad is deemed to be an agent of an owner or general contractor under the Labor Law when it can control the activity which brought about the injury. In this case, since Lad hired plaintiff’s employer, it was an appropriate Labor Law defendant as an agent of the owner or general contractor.   Labor Law § 241(6) (TPW) The Second Department reversed that portion of the trial court’s decision addressing the violation of Labor Law § 241(6) as predicated on Industrial Code 12 NYCRR 23-3.3(c). That regulation mandates continuing inspections during hand demolition operations to detect hazards “resulting from weakened or deteriorated floors or walls or from loosened material.” In support of its motion, defendant established the inapplicability of this provision by demonstrating that the hazard arose from plaintiff's actual performance of the demolition work itself, and not structural instability caused by the progress of the demolition. In opposition, the Court held that plaintiff failed to raise a triable issue of fact. Consequently, plaintiff failed to demonstrate that his injuries were proximately caused by a violation of an Industrial Code provision. Labor Law § 200 and Common-Law Negligence (ESB) The Second Department modified the trial court’s order by granting defendant’s motion for summary judgment as to Labor Law § 200 and common-law negligence. In this “means and methods” case, the Court explained that: “Although property owners [and general contractors] often have a general authority to oversee the progress of the work, mere general supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability under Labor Law § 200 or for common-law negligence. A defendant has the authority to supervise or control the work for the purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed. Based on this legal standard, the Court found that defendant established that it did not possess the authority to supervise or control the means and methods of plaintiff’s work, and plaintiff failed to raise a triable question of fact.  
Caiazzo v Mark Joseph Contr., Inc. August 17, 2022 Appellate Division, Second Department
  Plaintiff was injured while installing an air conditioning system in a newly constructed extension at a house owned by Julia Coen and occupied, in part, by her daughter, Ana Reyes. According to plaintiff, Coen hired MJC to construct the extension and hired plaintiff's employer to install the central air conditioning system. Plaintiff alleged in his complaint and at his deposition that he fell as he was stepping out of the house through an open and elevated rear doorway, when a wooden spool that had been used by other workers as a makeshift step gave way.   The trial court granted MJC’s motion for summary judgment dismissing the Labor Law §§ 240(1), 241(6), and 200 claims as well as the common-law negligence claims; granted the cross-motion of Coen and Reyes dismissing the complaint against Reyes and dismissing the §§ 240(1) and 241(6) claims against Coen; denied the motion to dismiss the Labor Law § 200 and common-law negligence claims against Coen; and denied plaintiff's cross-motion for summary judgment on the issue of liability.   The Second Department affirmed the trial court as to Coen and Reyes but granted MJC’s motion dismissing the common-law negligence claim.  After a jury had been selected for trial, Coen’s counsel disclosed two photographs depicting a temporary wooden staircase leading to the side door of the extension. The trial court granted plaintiff’s motion for a mistrial, and thereafter, additional photographs were disclosed and further deposition testimony was taken. Plaintiff then moved, pursuant to CPLR 2221(e), for leave to renew all prior summary judgment motions based on the new evidence, contending that the photographs and new deposition testimony not offered on the prior motions would change the prior determinations. The trial court denied plaintiff's motion.   Labor Law § 240(1) (MAS) Although plaintiff demonstrated reasonable justification for failing to present the photographs and the new deposition testimony prior to the determination of the prior summary judgment motions, the Second Department affirmed the trial court’s denial of plaintiff’s motion for leave to renew, based upon plaintiff’s failure to meet his burden of showing due diligence in presenting the new evidence to the Court. Plaintiff’s motion was made more than 3½ years after the initial decision, almost three years after the disclosure of the photographs, and nearly eight months after the new depositions, and plaintiff offered no explanation for the excessive delay in seeking leave to renew. Regardless, the Court held that neither the photographs nor the new deposition testimony would have changed the prior determinations.  PRACTICE POINT: A motion for leave to renew shall be based on new facts not offered on the prior motion that would change the prior determination and shall contain reasonable justification for the failure to present such facts on the prior motion. On a post-appeal motion to renew, the movant bears a heavy burden of showing due diligence in presenting the new evidence to the trial court in order to imbue the appellate court with a degree of certainty. In this case, plaintiff could not meet that burden, since his purported “new” evidence would not have changed the trial court’s prior decisions.  
Keller v Rippowam Cisqua Sch. August 17, 2022 Appellate Division, Second Department  
Plaintiff, while employed by nonparty Specialty Trades, fell from a ladder while working at a job site at premises owned by RCS. Portions of the premises were undergoing renovations and demolition at the time of the accident. Consigli was the general contractor on that project. Consigli had hired Kane to perform certain abatement and demolition work. The trial court denied Kane’s motion for summary judgment dismissing the third-party complaint against it for contractual indemnification and common-law indemnification and contribution.   Indemnity Issues in Labor Law (BFM) The Second Department affirmed the trial court’s denial of that part of Kane’s motion seeking to dismiss the third-party cause of action for contractual indemnification as Kane failed to establish that the plaintiff's alleged injuries were not caused by a ladder that Kane owned or furnished, or that the plaintiff's accident did not arise out of Kane’s work. The Court also found that the trial court properly denied that part of Kane’s motion which sought summary judgment dismissing the third-party causes of action for common-law indemnification and contribution as Kane failed to establish that it was not negligent and that it did not own the subject ladder and that it did not cause or contribute to the accident.  
Nunez v Peikarian August 17, 2022 Appellate Division, Second Department
Plaintiff allegedly was injured while performing construction work at defendants’ property. After conducting depositions, plaintiff served a subpoena on nonparty Bijari, a real estate agent, regarding her role in listing the property for sale. The trial court granted Bijari’s motion to quash the subpoena and for a protective order.   Labor Law § 240(1) (MAS) The Second Department reversed the trial court order, as plaintiff established that he provided Bijari with adequate notice of the circumstances or reason requiring the disclosure sought, shifting the burden to Bijari to demonstrate that the disclosure sought was irrelevant to the action. Bijari’s listing of the property for sale is relevant to defendants’ intent, at the time of plaintiff’s incident, regarding the property and the applicability of the homeowner’s exemption. Thus, the trial court should have denied that branch of Bijari’s motion to quash the subpoena.   The Court also held the trial court improvidently exercised its discretion in granting Bijari’s motion for a protective order because Bijari failed to make the requisite showing under CPLR 3103(d) to warrant the issuance of a protective order regarding the subpoena.   PRACTICE POINT: CPLR 3101(a)(4) involves disclosure from nonparties and provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof by: … any other person, upon notice stating the circumstances or reasons such disclosure is sought or required.” The party who served the subpoena has an initial minimal obligation to show that the nonparty was appraised of the circumstances or reasons that the disclosure is sought. Once that is satisfied, it is then the burden of the person moving to quash a subpoena to establish either that the requested disclosure is utterly irrelevant to the action, or that the futility of the process to uncover anything legitimate is inevitable or obvious. Here, Bijari could not demonstrate that the disclosure sought was irrelevant to the action.  
Parrino v Rauert August 17, 2022 Appellate Division, Second Department
  Plaintiff was hired to perform tile work at a single-family residence owned by defendant. While working at the property, plaintiff sustained injuries when 20 unsecured panels of sheetrock, each measuring four feet by eight feet, which were being stored in an upright position on the porch of the property, toppled and pinned him against the wall of the porch. The trial court granted defendants’ motions for summary judgment dismissing the Labor Law § 240(1) claims against each of them but denied the motion as to Labor Law § 241(6), and denied plaintiffs’ cross-motion for summary judgment on the issue of liability on the Labor Law §§ 240(1) and 241(6) claims. Labor Law § 240(1) (MAS) The Second Department affirmed dismissal of this claim because defendants established that plaintiff’s injuries were not caused by an elevation-related or gravity-related risk within the meaning of Labor Law 240(1). In opposition, the Court held that plaintiffs failed to raise a triable issue of fact. Contrary to plaintiffs’ contention, the affidavit of their expert was speculative and conclusory regarding this issue.   PRACTICE POINT: With respect to falling objects, a plaintiff must show more than simply that an object fell, thereby causing injury to a worker. A plaintiff must show that, at the time the object fell, it was being hoisted or secured, or that the object required securing for the purposes of the undertaking.  
The Second Department affirmed denial of defendant’s motion based on the failure to establish that he was exempt from liability based on the Labor Law § 241(6) claim pursuant to the homeowner exemption.  Owners of one- or two-family dwellings are exempt from liability under § 241(6) unless they directed or controlled the work being performed. Where an owner engages in both commercial and residential uses of the property, a determination as to whether the exemption applies must be based on the owner's intentions at the time of the injury. Per Defendant’s testimony, he was “up in the air” as to whether he intended to live at the property or use it as a rental property once the restoration work was completed.  Therefore, triable issues of fact existed as to the purpose of the work performed.  
Guoxing Song v CA Plaza, LLC August 24, 2022 Appellate Division, Second Department
  Plaintiff allegedly injured his low back while working as a carpenter on a building owned by CA Plaza, LLC, and CA Plaza, LLC, doing business as 134-22 35th Ave., LLC, which building was being constructed in Queens. W & L Group was the general contractor for the construction project. The trial court granted plaintiff’s motion for summary judgment on the Labor Law § 241(6) claim against CA Plaza, LLC, CA Plaza, LLC, doing business as 134-22 35th Ave., LLC, and W & L Group. Labor Law § 241(6) (TPW) The Second Department affirmed the trial court’s decision, which held that plaintiff met his prima facie burden of establishing his injuries were proximately caused by a violation of 12 NYCRR 23-1.7(d), considering his testimony that he was caused to slip and fall when he stepped on ice on the floor of the open-air work site. Contrary to defendants’ contention, they neither produced evidence in admissible form sufficient to raise a triable issue of fact, nor demonstrated an acceptable excuse for their failure to meet the requirement of tender in admissible form. Specifically, defendants failed to lay any foundation for the admissibility of their submissions or to provide a certified translation of documents from Chinese into English. Accordingly, the trial court properly granted plaintiff's motion.  
Thorpe v One Page Park, LLC August 24, 2022 Appellate Division, Second Department  
Plaintiff allegedly was injured in the course of his employment at a construction site owned by Page, who contracted with Coon to perform excavation work on the site. Plaintiff, an employee of a nonparty temporary staffing agency, reported to work for Coon and was working on the site when, while installing stakes and caution tape around an open pit, the ground beneath his foot gave way, and he fell into the 14-16 deep pit. The trial court granted defendants’ motion for summary judgment dismissing the complaint and denied plaintiff's cross-motion for summary judgment on the Labor Law §§ 240(1) and 241(6) claims against Page. 
Labor Law § 240(1) (MAS) The Second Department reversed the trial court’s decision, which, upon reargument, should have denied that branch of defendants’ motion as the risk of falling into a 16-foot pit at an excavation site is a type of elevation-related risk within the purview of the statute, and defendant failed to establish that plaintiff’s negligence was the sole proximate cause of his injuries. The deposition testimony of plaintiff and the foreman contained conflicting testimony, raising a triable issue of fact as to whether plaintiff received instructions not to stand within five feet of the pit. Defendants also did not establish that the installation of a protective device would have been contrary to the objectives of the work. As for plaintiff’s motion, the Court held the foreman’s deposition testimony, that he instructed plaintiff not to go within five feet of the pit, raised a triable issue of fact as to whether a violation of the statute was a proximate cause of plaintiff’s incident.   PRACTICE POINT: To prove the sole proximate cause defense, a defendant must show that (1) adequate safety devices were available to plaintiff; (2) he or she knew both the safety devices were available and were expected to be used; (3) chose for no good reason not to do so; and (4) would not have been injured had they not made that choice. Here, defendant could not prove all four elements, but their proof regarding instructing plaintiff not to go within five feet of the pit created an issue of fact regarding proximate cause sufficient to defeat plaintiff’s motion.  
Marino v Manning Squires Hennig Co., Inc. August 4, 2022 Appellate Division, Fourth Department
Plaintiff, a construction worker, was injured when the forklift that he had been operating began to roll backwards toward a nearby street. According to plaintiff, he had placed the forklift in neutral, put on the parking brake, and exited the vehicle to retrieve some materials. When plaintiff observed the forklift rolling backwards, he ran after it. Once he reached the forklift, plaintiff planted his foot on the ground and in his effort to enter the vehicle, his knee “popped.” The trial court granted in part plaintiff's motion seeking partial summary judgment as to his cause of action pursuant to Labor Law § 241(6).
In a case successfully litigated by Hurwitz Fine P.C., the Fourth Department unanimously reversed the trial court and denied that part of plaintiff's motion seeking a determination that the cited Industrial Code provisions were applicable to the case, had been violated as a matter of law, and that the violations constituted a failure to use reasonable care.    Recovery under Labor Law § 241 (6) for a violation of 12 NYCRR 23-9.2 (a) requires an "employer" to have "actual notice of the structural defect or unsafe condition".  The Court held that defendants raised conflicting deposition testimony, including plaintiff’s own testimony, on the issue whether a malfunction of the forklift's parking brake had occurred on a date prior to the accident or whether the date of the accident was the first time any party was aware of the alleged faulty brake raising a triable issue of fact.   Additionally, plaintiff failed to meet his burden of establishing that 12 NYCRR 23-1.7 (d) and (e) were applicable to the facts. Those provisions apply to various designated work areas. Again, plaintiff’s inconsistent testimony on the specific location where he was injured and, even if found to be within a protected area, whether it occurred on a surface contemplated by the relevant sections, precluded resolution on summary judgment.   The Court further found that 12 NYCRR 23-9.8 (c), which provides in relevant part, "[e]very power-operated fork and lift truck shall be provided with a lockable brake," applied to the case, but held that Plaintiff failed to meet his burden of demonstrating that this section was violated. Defendant submitted plaintiff’s General Municipal Law § 50-h testimony, which conflicted with his deposition testimony, as to whether the brake indicator light was activated during the incident and, thus, raised a triable issue of material fact as whether the parking brake was defective.  
Thomas v North Country Family Health Ctr., Inc. August 4, 2022 Appellate Division, Fourth Department  
Plaintiff allegedly was injured when he fell from an A-frame ladder, which tipped over while he was carrying a 90-pound piece of sheetrock, that he was attempting to hand to a coworker, who was operating a scissor lift. The trial court denied plaintiff’s motion for partial summary judgment on his Labor Law § 240 (1) claim and granted defendants’ cross-motion seeking summary judgment dismissing the complaint.
The majority affirmed the trial court’s decision, as plaintiff failed to meet his burden, since his own submissions raise triable issues of material fact whether plaintiff’s conduct was the sole proximate cause of the incident, due to his failure “to use available, safe and appropriate equipment” - i.e., the scissor lift – at the time of the incident. Plaintiff’s deposition transcript acknowledged both that the scissor lift was the proper means of lifting the sheetrock and that using a ladder to perform that task was unsafe, and whether he “chose for no good reason” to use the ladder instead of the scissor lift.   However, the majority reversed the trial court decision granting defendants’ cross-motion, finding that defendants did not meet their burden of establishing, as a matter of law, that plaintiff was the sole proximate cause of the incident. Defendants’ proof showed that the coworker, who was operating and standing in the scissor lift at the time of the incident, denied plaintiff’s request for access to the device by refusing to reposition it to allow plaintiff to safely lift the sheetrock into place. The majority held that, considering the coworker’s alleged conduct, the evidence is not conclusive about whether plaintiff chose to use the ladder over an “available” scissor lift for “no good reason.” To the extent that the coworker’s conduct - i.e., failing to reposition the scissor lift, despite plaintiff’s request – was a proximate cause of the incident, it is conceptually impossible for plaintiff’s own failure to use the scissor lift to be the sole proximate cause.   Justice Peradotto’s dissent would have affirmed the trial court’s order, in its entirety, and granted defendants’ cross-motion for summary judgment dismissing the complaint on the grounds that plaintiff was the sole proximate cause of the incident. Defendants’ evidence established that an adequate safety device, in the form of a scissor lift, was on the work site; that plaintiff knew through his training, prior practice, and common sense not to carry that sheetrock by handing it up the ladder, instead, he was expected to use the scissor lift, and that plaintiff would not have been injured if he had chosen to use the adequate safety device rather than the inappropriate method.   The dissent agreed with the majority that plaintiff’s reliance on case law standing for the proposition that a worker is not the sole proximate cause of an accident where the worker performs a task in a manner at the insistence or direction of his or her foreperson or supervisor is misplaced, because the coworker was not a supervisor and thus, had no supervisory authority. Contrary to the majority’s conclusion, however, a plaintiff cannot evade an adverse finding of sole proximate cause on summary judgment by attributing his conduct to the coworker. Plaintiff’s testimony unambiguously established that he knew he was expected to use the provided scissor lift, and that using a ladder to manually lift a heavy piece of sheetrock was an inappropriate method and would not be acceptable.   PRACTICE POINT: It is well-established that there may be more than one proximate cause of an injury and that questions concerning proximate cause are generally questions for the jury. Justice Peradotto’s dissent persuasively argues that plaintiff’s own negligent actions in choosing to perform the injury-producing task by manually lifting the sheetrock on a ladder, in a manner that he knew was inappropriate to accomplish the work, instead of using the provided scissor lift, were the sole proximate cause of his injuries. Labor Law § 241(6) (TPW) The Fourth Department affirmed that portion of the trial court’s order granting defendant’s dismissal of the Labor Law § 241 (6) claim based upon alleged violations of 12 NYCRR 23-1.21 (b) (4) (ii) and (e) (3). Pursuant to 12 NYCRR 23-1.21 (b) (4) (ii), “[s]lippery surfaces and insecure objects such as bricks and boxes shall not be used as ladder footings" and, pursuant to 12 NYCRR 23-1.21 (e) (3), "[s]tanding stepladders shall be used only on firm, level footings." Defendants satisfied their initial burden by submitting evidence establishing that neither provision was applicable to the facts of this case. Although those provisions are sufficiently specific to support a Labor Law § 241 (6) claim, the deposition testimony relied on by defendants established that neither provision applied because the accident did not occur due to the ladder’s placement on an uneven or slippery surface.   Labor Law Pointers is published the first Wednesday of each month.  If you know of others who may wish to subscribe to this free publication, please feel free to forward it.  If you wish to subscribe or unsubscribe, please send an e-mail to [email protected] or call the Editor/Labor Law Team Leader David R. Adams directly at (716) 849-8916.  
 New York Industrial Code Regulations (EDA)
12 NYCRR 23-1.24(a)(1)(iii) Roofing bracket installation. Roofing brackets shall be secured in place by nailing, by securely driving into the roof the pointed metal projections which are attached to the undersides of roofing brackets or by means of first grade manila rope or synthetic fibre rope at least three-quarters inch in diameter which is passed over the ridge poles and tied. Regulation § 23–1.24(a)(1)(iii), specifying the means of installing roofing brackets, is likely sufficiently specific to support a Labor Law § 241(6) claim.    
Labor Law Pointers   Editor David R. Adams Associate Editor Eric S. Bernhardt Associate Editor Brian F. Mark Associate Editor Timothy P. Welch Associate Editor Marc A. Schulz Associate Editor Eric D. Andrew Labor Law Team
David R. Adams, Team Leader [email protected]  
Dan D. Kohane [email protected]                                                        Michael F. Perley [email protected] Eric S. Bernhardt [email protected] Marc A. Schulz [email protected] Jesse L. Siegel [email protected]
Steven E. Peiper [email protected] Brian F. Mark [email protected] Timothy P. Welch [email protected] Eric D. Andrew [email protected]  
Michael J. Dischley
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