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Labor Law Pointers - Volume XI, No. 2

 
 

Volume XI, No. 2
Wednesday, January 5, 2022

 

 From the Editor:

Do you have a situation?  We love situations.  Give us a call, send an email, drop by; we truly enjoy solving complex Labor Law and risk transfer issues. 
 
Welcome to 2022! We wish one and all a happy and healthy New Year.  2022 is starting out with some new legislation in New York, of particular interest to, and causing considerable concern for, defense attorneys and carriers.  Ryan Maxwell and Dan Kohane from our coverage department have put together a concise summary of the requirements for carriers and attorneys. Here is the link.  The requirements, in brief, require disclosure of:

  • All primary, excess and umbrella policies, contracts or agreements including, but not limited to, declarations, insuring agreements, conditions, exclusions, endorsements, and similar provisions—including the insurance application;
  • The amounts available under any policy, contract or agreement to satisfy a judgment;
  • The caption and date of any lawsuits that have or may reduce or erode these amounts and contact information for the attorney of any represented party therein;
  • The amount, if any, of attorney’s fees that have eroded or reduced the face value of the policy, along with the name and address of any attorney who received such payments;
  • The contact information, including telephone number and e-mail address, of any person or persons responsible for adjusting the claim; and
  • Sworn certifications from both the insured and the insured’s counsel indicating that the above disclosures are accurate and complete, and that reasonable efforts have and will be undertaken to ensure that this information remains accurate and complete pursuant to CPLR 3101(f)(2).

Needless to say, this is going to be an inordinate burden on both carriers and defense counsel.  Dan and Ryan drafted objections to the legislation prior to it being passed and signed by the governor (without any debate or discussion).  There remains the potential that the legislation will be revised; there have been reports to that potential, but for today this is the law.
 
This is a perfect time to remind everyone that H&F produces other newsletters periodically.  Dan and the Coverage Department put out Coverage Pointers every two weeks, and I am certain that there will be more on these requirements in the next edition.  If you are not on the distribution list, just click here and Dan will be happy to add you.
 
On to our monthly photo quiz.  In the first photo, the soon-to-be plaintiff is decorating a tree for the ski resort that hired his employer to decorate for the holidays.  As he leans off the ladder to check a bulb in the string that just won’t light up, the ladder he is only partially on slips away from the tree, causing the plaintiff to fall.   § 240(1) case?
 

 
To start, the plaintiff is a person so employed and thus, a valid plaintiff.  The owner of the ski area is an owner of commercial property and thus, a valid defendant.  The plaintiff was injured by the application of the force of gravity, so the mechanism of the accident is valid.  Unfortunately for the proposed plaintiff, his activities, decorating a Christmas tree, do not qualify as the type of project for which the protections of the statute apply.  Should be summary judgment for the defendant.
 
Here, we have a plaintiff working for a tree service, who has been hired by a property owner to remove a tree, as the roots were damaging the driveway at his store.  The plaintiff complained to his boss that he did not have an appropriate ladder to use to cut the tree and his boss told him to “just get the job done with what you have.”  As the plaintiff stood on the jaws of the machine used to drag away the cut sections and cut the tree, he lost his balance, fell, and was injured, not only by the fall but also by the saw.  § 240(1) case?
 
 
 
The property owner is the owner of commercial property, so he is a valid defendant.  The plaintiff is a person so employed, so he is a valid plaintiff.  The plaintiff is injured by the application of the force of gravity.  The saving grace for the defendant property owner, is that the tree is neither a building nor a structure as required under § 240(1), as it is not composed of component parts, and thus, the § 240(1) claim will be dismissed.
 
Here, we have an electrician, hired by the building owner to rewire an electrical line in conduit attached to the outside of the building, because the old wiring has shorted out.  He gathers up every ladder he can find in the shop, and takes them all to the work site.  There he stacks up the ladders, end-to-end, and lashes them together, in order to reach the conduit.  While the plaintiff is working on the conduit, the ladder in the middle, for some unknown and inexplicable reason, shifts and caused the plaintiff to fall.  The plaintiff had his OSHA 10 at the time.  During the deposition, he testified that he thought that the manner in which he configured the ladders was completely safe and that it was his own design of what he considered a safe way to get to the conduit, so he decided not to use the lift that he had on the trailer behind the truck right in the lot, only feet away.  His boss had never instructed him not to stack ladders in this manner and had never seen him do so.  § 240(1)?


 
The plaintiff is a person so employed, the property owner owns the commercial property, the plaintiff was engaged in a repair to the electrical system, so the project was covered by the Labor Law, and the injury was cause by the application of the force of gravity. The defense attorney then turns to the sole proximate cause defense.  The necessary elements of the sole proximate cause defense are: (1) that there be an appropriate safety device, which is (2) available to the plaintiff, which (3) the plaintiff was instructed to use or knew he was expected to use, and which (4) he failed to use, or misused, (5) for no good reason.  Here, the plaintiff had a lift on site, but look to element (3), the need to have been instructed to use a particular method.  Fortunately, the defendant attorney had taken the OSHA 10 class and had the necessary instructional materials to prove that, during the OSHA training, the plaintiff was instructed never to use ladders in this manner, but rather, to use a lift if the height was beyond the appropriate distance for a ladder.  This is why all members of the Hurwitz & Fine Labor Law team are OSHA certified, having completed the OSHA 10 training.
 
In this next photo, the plaintiff is working for the roofing company hired by the owner to put a new roof on this apartment building.  As the plaintiff climbed to the roof on the folded A-frame ladder set on the pick, the ladder slipped and he fell, sustaining severe injuries.  § 240(1) case?


 
The plaintiff is a person so employed, the defendant is the owner of a building used for commercial purposes, the plaintiff is involved in a protected activity, i.e., construction, and the injury is caused by the application of the force of gravity.  There was no safety device present to prevent the fall, so this is going to be summary judgment for the plaintiff.
 
Here, we have a plaintiff repairing the downspout on the house he owns and lives in, using a lull owned by the construction company he owns.  When he falls is it a § 240(1) case?
 
 
 
Plaintiff does not have a claim, as he is the owner of the property and the plaintiff, and would therefore need to sue himself, which he can’t do.  Had the property been owned in a different manner, or had it been one of his employees who was injured, then a valid § 240(1) case would exist. 
 
Here, we have a worker taking a ladder to a work site within a mall, when he decides that he is going to use the escalator, putting the ladder through the ceiling.  I don’t really have any questions here, the Labor Law is only for personal injuries, not for property damage; but the photo is just too good not to include. 
 

 
Happy New Year to all our readers. As always, feel free to reach out with any questions on any specific topic, or just for a quick refresher on any topic. We are always available to help.
 

David
David R. Adams
Hurwitz & Fine, P.C.
424 Main Street
Suite 1300 Liberty Building
Buffalo, New York 14202
Phone:  716.849.8900
Direct:  716.849.8916
Fax:  716.855.0874
Cell:  716.553.6901
Email:  [email protected]
H&F Website:  www.hurwitzfine.com

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Coverage Pointers: This twice-monthly electronic newsletter summarizes important insurance law decisions from appellate courts in New York State with the occasional snapshot across borders. Coverage Pointers, the electronic newsletter that started it all, continues to offer guaranteed publication every other Friday, and a read-at-a-glance summary of important decisions as they happen. Contact Dan Kohane at [email protected]  to subscribe.

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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. 

 

Greca v Choice Assoc. LLC
December 2, 2021
Appellate Division, First Department

Plaintiff was injured while working on the fifth floor of Choice's property when a piece of wood that had been placed as a temporary path allegedly shifted, causing him to fall through an open area between beams. Plaintiff prevented himself from falling all the way down to the fourth floor by grabbing a metal stud attached underneath a beam. The trial court denied plaintiffs’ motion for summary judgment as to liability on his Labor Law §§ 240(1) and 241(6) claims.

 
Labor Law § 240(1) (MAS)
The First Department unanimously reversed and granted plaintiff summary judgment on both his claims because Choice’s evidence in opposition to plaintiff’s prima facie showing consisted solely of inadmissible hearsay. Choice did not establish that the statements contained in the medical records on which it relied either were germane to plaintiff’s diagnosis and treatment or are directly attributable to plaintiff.
 
The Court also rejected Choice’s argument that plaintiff’s motion was premature since it failed to establish that facts essential to justify opposition to the motion were within plaintiff’s exclusive knowledge. Additionally, its argument that the motion was premature is undermined by its own failure to use the time and opportunity it had to obtain whatever nonparty testimony it needed.
 
PRACTICE POINT: A defendant cannot raise an issue of fact sufficient to defeat plaintiff’s motion by relying only on inadmissible hearsay. However, hearsay entries regarding the cause of an injury, contained in a medical record, may come into evidence under the business records exception if they are germane to the treatment or diagnosis of plaintiff’s injuries. Alternatively, the entry may be admissible as a party admission, but only if there is evidence that connects the party to the entry. In this case, the entries were neither germane to treatment or diagnosis, nor were they directly attributed to the plaintiff.
 
 

Vasquez v City of New York
December 2, 2021
Appellate Division, First Department
 


Plaintiff fell during a construction project at Lincoln Center. CCMD, the owners of the premises, hired Dolner to be the general contractor for the construction project. Dolner subcontracted with All-Safe to be the site-logistics subcontractor, and with third-party defendant Donaldson Interiors, plaintiff's employer, to install drywall and acoustical ceilings. Several months before plaintiff's accident, a nonparty subcontractor removed the tile floor from the area around which All-Safe would later construct a platform, leaving the ground in an uneven and unsmooth condition. Plaintiff's accident occurred when he rolled his left ankle as he stepped off of All-Safe's platform and onto the uneven ground.
 
The trial court denied (1) the motion of the owners City of New York, Lincoln Center for the Performing Arts, and City Center of Music & Drama (together CCMD) for summary judgment dismissing the Labor Law § 200 and common-law negligence claims as against CCMD, and for summary judgment in CCMD’s favor on its contractual and common-law indemnification cross-claims against Dolner; and (2) All-Safe's motion for summary judgment dismissing Dolner's cross-claim and third-party claim for contractual indemnification.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed denial of CCMD’s motion for summary judgment as to Labor Law § 200 and common-law negligence. In this “dangerous condition” case, the Court held that CCMD failed to show that it lacked notice of the floor’s dangerous condition after the nonparty subcontractor’s removal of the tile floor. The Court further noted that the standard relevant to dangerous premises conditions applied to this case, regardless of whether the means-and-methods standard also applied.
 
PRACTICE POINT:  Cases involving Labor Law § 200 fall into two broad categories:  injuries arising out of alleged dangerous or defective conditions on the premises where the work is performed, and injuries arising from the method and manner of the work. A § 200 claim can involve one of these categories, or both. To obtain summary judgment under§ 200 and common-law negligence, a defendant must address both categories, but, as in this case, the inapplicability of one category does not defeat a claim based on the other.
 
Indemnity Issues in Labor Law (BFM)             
Considering issues of fact as to CCMD's negligence, the First Department affirmed the trial court’s order denying CCMD's motion seeking summary judgment on its contractual and common-law indemnification cross claims against Dolner. However, the Court held that the trial court should have granted that portion of All–Safe's motion seeking to dismiss Dolner's contractual indemnity claims as against it. The relevant indemnification agreement requires All–Safe to indemnify Dolner for claims “aris[ing] out of or in connection with or as a consequence of the performance or non-performance of [All–Safe's] Work.” As All–Safe's work was limited to constructing the platform from which plaintiff stepped, work that All–Safe performed non-negligently, and All–Safe was not responsible for leveling out the ground underneath the platform, the Court found no basis for concluding that plaintiff's accident arose out of All–Safe's work.
 
 

Diming Wu v 34 17th St. Project LLC
December 9, 2021
Appellate Division, First Department

 
Plaintiff was standing on an A-frame ladder, sealing a hole in the fourth-floor ceiling of a building under renovation. As he was drilling in a screw to secure a metal piece into the ceiling, which was nine feet high, he fell off the ladder and into an opening for a garbage chute down to the basement, where he fell onto rebar and was injured. The trial court granted plaintiffs’ motion for summary judgment on liability under Labor Law § 240(1) and denied the motion by 34 17th Street and New Empire for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims.
 
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s order as plaintiff’s testimony sufficiently established plaintiffs’ entitlement to summary judgment. Whether the ladder moved or whether plaintiff’s fall was caused by drill vibrations is immaterial, as the A-frame ladder was an inadequate safety device for the work plaintiff was performing. The Court rejected defendants’ sole proximate cause argument. Even accepting as true that the hole to be sealed to the garbage chute opening at most establishes comparative negligence, which is not a defense to a Labor Law § 240(1) claim.
 
PRACTICE POINT: This is the quintessential fall-from-a-ladder § 240(1) case. Plaintiff’s fall from an unsecured ladder established that the ladder was an inadequate safety device, and no safety equipment was provided to protect plaintiff against the risk of falling off the ladder or into the garbage chute opening.
 
Labor Law § 241(6) (TPW)
In light of the grant of summary judgment to plaintiff on his Labor Law § 240(1) claim, the First Department concluded the Labor Law § 241(6) analysis was academic.
 
 

Ingrati v Avalonbay Communities, Inc.
December 9, 2021
Appellate Division, First Department

 
Plaintiff slipped or tripped on broken concrete and brick, as well as lighter-colored dried concrete pieces on the sidewalk area outside the front of the building under construction. The trial court denied plaintiff’s motion for summary judgment on his claims under Labor Law §§ 241(6) and 200, as well as common-law negligence, and granted defendant’s cross-motion for summary judgment dismissing the Labor Law § 241(6) claim. 
 
Labor Law § 241(6) (TPW)
The First Department modified the trial court’s decision on the Labor Law § 241(6) claim and reinstated that claim insofar as it was predicated on Industrial Code (12 NYCRR) § 23-1.7(e)(2).  The Court found plaintiffs’ evidence established prima facie entitlement to summary judgment based on the existence of broken concrete and brick, as well as lighter-colored dried concrete pieces in the same area on the sidewalk where plaintiff slipped or tripped. In opposition, Court held that defendant raised a triable issue as to whether the sidewalk condition on which plaintiff tripped or slipped was inherently dangerous, which precluded summary judgment.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed denial of plaintiff’s motion for summary judgment as to the Labor Law § 200 and common-law negligence claims, finding that defendant’s evidence raised triable issues of material fact as to whether the sidewalk condition on which plaintiff tripped or slipped was inherently dangerous.
 
 

Karandisecky v City of New York
December 14, 2021
Appellate Division, First Department

 
Plaintiff, a subcontractor's foreman, was attempting to unlock the door of the office trailer at 6:30 a.m. to review construction documents and to prepare the trailer for the day's employee meeting when he slipped and fell on snow and ice on the staircase landing-platform just outside the trailer door. The trial court granted defendants' summary judgment motion seeking dismissal of the Labor Law § 241(6) claim predicated upon Industrial Code § 23-1.7(d).
 
Labor Law § 241(6) (TPW)
The First Department unanimously reversed the trial court’s order dismissing the Labor Law § 241(6) claim. The Court found issues of fact as to whether plaintiff was engaged in a construction-related activity at the time he slipped and fell and whether the landing on which he fell was the type of surface contemplated under regulation 23-1.7(d), i.e., whether it was a “walkway” or a “passageway” or a “platform” precluding resolution on motion.
 
 

Badzio v East 68th St. Tenants Corp.
December 28, 2021
Appellate Division, First Department

 
Plaintiff was injured when he fell from an elevation of thirty feet from the scaffold he was dismantling. The trial court denied D’Angelo/Jacobs motion for summary judgment dismissing East 68th Street and Wallack’s contractual indemnity and breach of contract claims as against them, denied the Hunter’s motion for summary judgment dismissing East 68th Street and Wallack’s contractual indemnity claim as against them, granted East 68th Street and Wallack’s motion for summary judgment on their contractual indemnity claim as against D’Angelo/Jacobs and the Hunter’s, and Sagewood, denied East 68th Street and Wallack’s and Sienia's motions for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims as against them and granted plaintiff's cross motion for summary judgment as to liability under Labor Law § 240(1).
 
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s order as plaintiff established prima facie defendants’ liability under Labor Law § 240(1) and defendants failed to rebut plaintiff’s showing that there was no place for him to tie off his harness or that he was not supplied with a safety line. The Court rejected defendants’ argument that plaintiff was the sole proximate cause of his accident because he misused the safety devices that were supplied or could have used the building stairs or elevator to gain access to the top of the scaffolding.
 
Sienia and Sagewood were correctly deemed contractors or agents under Labor Law § 240(1) because Sienia hired plaintiff’s employer to erect the scaffolding and thus had authority to exercise control over the work that brought about plaintiff’s injury. Under the contract with Sagewood and the Hunters, Sagewood was in control because it retained control over the renovation project, which included the installation and removal of scaffolding in front of the building. That Sagewood delegated its responsibility to Sienia, making Sienia either a subcontractor or an agent of Sagewood as to the scaffolding, does not free Sagewood from liability.
 
PRACTICE POINT: The four elements of the sole proximate cause defense include: (1) plaintiff had an appropriate safety device, which was readily available to him or her; (2) plaintiff was instructed to use and/or knew he or she was expected to use it; (3) he or she failed to use or misused the safety device for no good reason; and (4) had the readily available safety device been properly used, the injuries would not have occurred. Here, there was no evidence that plaintiff was advised of an available alternative route to the top of the scaffolding, or alternate method by which to perform his work.
 
Indemnity Issues in Labor Law (BFM)
The First Department affirmed the trial court’s finding that East 68th Street and Wallack were entitled to contractual indemnification from D'Angelo/Jacobs and the Hunters. The Court noted that, pursuant to the riders to the Alteration Agreements, the owners of both apartments agreed to indemnify East 68th Street and Wallack for “any loss or damages suffered to persons or property as a result of the Work” and for damages “arising out of or in any way related to, the Alteration or other construction in the Apartment.” The Court found that such unambiguous language evinces an intent to indemnify under the facts of this case, in which plaintiff's injuries arose out of or were related to the alteration work to both apartments -- namely the dismantling of the scaffold that was erected by D'Angelo/Jacobs and extended by the Hunters.
 
 

Caban v 1691 Fulton Ave. Hous. Dev. Fund Corp.
December 28, 2021
Appellate Division, First Department

 
Plaintiff was repairing a lighting system on the third floor of the property when he received an electric shock and fell from a defective, non-insulated and unsecured metal ladder. Defendant 1691 Fulton Avenue Associates, LP purchased the property from defendant 1691 Fulton Avenue Housing Development in October 2006. Defendant 1691 Fulton Avenue Associates, through its general partner, defendant 1691 Fulton Avenue Management Corp., retained defendant Phipps Houses Services, Inc. to manage the property. The trial court granted defendants’ motion for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims, and denied plaintiff's cross-motion for partial summary judgment on those claims and to strike defendants’ affirmative defense based on the Workers’ Compensation Law
 
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s order as plaintiff’s limited task of replacing a ballast in a light fixture constitutes routine maintenance and thus is not covered by Labor Law § 240(1) because it is routine maintenance and not repair work (see Monaghan v 540 Inv. Land Co., LLC, 66 AD3d 605 [1st Dept 2009]).
 
PRACTICE POINT: Routine Maintenance vs. Repair - Part 1. A fall from a ladder while changing a lightbulb constitutes routine maintenance, as opposed to repair work. Remember, if the work is “replacing components that require replacement in the course of normal wear and tear,” such as lightbulbs, then it is maintenance, and not repair work under Labor Law §§ 240(1) and 241(6).
 
Labor Law § 241(6) (TPW)
The First Department affirmed Labor Law § 241(6) is inapplicable to plaintiff's claim as his work was unrelated to construction, excavation, or demolition work.
 
 

Chen v 111 Mott LLC
December 28, 2021
Appellate Division, First Department

 
Plaintiff was injured when he fell off a ladder on which he was standing, while installing a drop ceiling. On the day of the accident, there was an opening in the floor of the room where plaintiff would be working, left open because electrical wiring, that had been installed below the level of the floor, still needed to be inspected. Plaintiff placed a flat wooden board over the floor opening, in the spot where he would be working, and then placed an A-frame ladder atop the board. After ascending and descending the ladder uneventfully, plaintiff ascended again, carrying a drill in his left hand, and a piece of metal that he planned to screw to the ceiling, as part of the framing for the drop ceiling, in his right hand. To reach the surface to which he would affix the metal, plaintiff stood on the fifth step of the ladder. As he began to use the drill, he felt the ladder wobble from side to side, and he, and it, crashed to the floor.
 
At the time of the accident, H&M was the general contractor at the site, and nonparty GD was plaintiff's employer. H&M had retained GD to perform renovations in two apartments in the building. The trial court granted plaintiff’s motion for summary judgment on the Labor Law § 240(1) claim as against H&M and denied H&M's cross-motion for leave to amend its answer and for summary judgment dismissing the complaint as against it.
 
Labor Law § 240(1) (MAS)
The First Department reversed the trial court’s decision to deny H&M’s cross-motion for leave to amend its answer to assert the Workers’ Compensation affirmative defense. The valid and final decision of a panel of the Workers’ Compensation Board, affirming a decision by a Workers’ Compensation Law Judge that was based on a finding that H&M was plaintiff’s employer at the time of the accident, bars plaintiff from re-litigating the identical issue in this proceeding.
 
PRACTICE POINT: Collateral estoppel, or issue preclusion, gives conclusive effect to an administrative agency’s quasi-judicial determination (such as the Workers’ Comp. Board) when two basic conditions are met: (1) the issue sought to be precluded is identical to a material issue necessarily decided by the administrative agency in a prior proceeding; and (2) there was a full and fair opportunity to contest this issue in the administrative tribunal. The proponent of collateral estoppel must show identity of the issue, whereas the opponent must demonstrate the absence of a full and fair opportunity to litigate.
 
 

Guaman v 178 Ct. St., LLC
December 1, 2021
Appellate Division, Second Department

 
Plaintiff, an employee of Safetx, was injured when, while working on a construction project inside a building, he fell through an uncovered opening at a stairwell on the unfinished second floor. At the time of the accident, defendant 178 Court Street, owned the property, and Dynatec was the general contractor on the project. In relation to the project, Dynatec hired Safetx to perform structural steel and iron work. The trial court denied plaintiff’s motion for summary judgment on the Labor Law §§ 240(1) and 241(6) to the extent predicated upon Industrial Code 23-1.7(b)(1)(i) and 23-1.16(b). It also denied defendants’ cross-motion for summary judgment dismissing the Labor Law § 241(6) claim as was predicated upon 12 NYCRR 23-1.7(b)(1)(i) and 23-1.16(b) against Dynatec and the Labor Law § 200 and common-law negligence claims.
 
Labor Law § 241(6) (TPW)
The Second Department affirmed the below decision noting that the parties’ submissions in support of their respective motions failed to eliminate all triable issues of fact as to whether 12 NYCRR 23-1.7(b)(1)(i) and 23-1.16(b) had been violated and whether any such violation was a proximate cause of the accident. 
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed the trial court’s order denying defendants’ motion to dismiss the Labor Law § 200 and common-law negligence claims.  In this “dangerous condition” case, the Court held that defendants failed to eliminate all triable issues of fact as to whether Dynatec had control over the premises where the alleged accident occurred and failed to establish that Dynatec lacked notice of the allegedly dangerous conditions.
 
 

Cando v Ajay Gen. Contr. Co. Inc.
December 8, 2021
Appellate Division, Second Department

 
Plaintiff fell as he was descending an extension ladder while working for a plumbing subcontractor at a house owned by the Kennedys. At the time of the accident, the Kennedys were adding a second floor to the house. The Kennedys had hired Ajay as the general contractor, and Ajay subcontracted the carpentry and other work to the second third-party defendant PCL. The existing staircase to the second floor had been removed prior to the accident. The extension ladder from which plaintiff fell had been used by him to gain access to the second floor. The trial court denied PCL’s motion for summary judgment dismissing the second third-party complaint and the complaint in a related action and denied the Kennedys’ motion for leave to renew their prior motion for summary judgment dismissing the complaint and all cross claims against them, which was denied in a prior order.
 
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s denial of PCL’s motion as it failed to demonstrate, prima facie, that it was not an owner, contractor, or statutory agent under Labor Law §§ 240(1) and 241(6). Moreover, the subcontract between Ajay and PCL gave PCL many of the powers of a general contractor.
 
PRACTICE POINT: A party with the ability to control the activity which brought about the injury may be vicariously liable as an owner’s agent or a contractor under Labor Law §§ 240(1) and 241(6).
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed the trial court’s order denying PCL’s motion to dismiss the Labor Law § 200 and common-law negligence claims. In this case, which was both a “means and methods” and “hazardous condition” case, PLC failed to demonstrate that it did not possess any authority to supervise and control plaintiff’s work or work area, and that it did not create the dangerous condition that allegedly caused plaintiff’s injury.
 
Indemnity Issues in Labor Law (BFM)
The denial of PCL's motion seeking to dismiss the claims for contractual and common-law indemnification was proper. The claim for contractual indemnification was based on a subcontract between Ajay and PCL, pursuant to which PCL agreed to indemnify Ajay if PCL or one of its subcontractors was negligent. PCL failed to demonstrate that plaintiff's accident was not “caused in whole or in part by any negligent act or omission of [PCL],” such that the indemnification clause was not triggered. 
 
With regard to the common law indemnification claim, the Second Department noted, that a party moving for summary judgment dismissing such a claim can meet its prima facie burden by establishing that plaintiff's accident was not due to its own negligence. As there were triable issues of fact as to whether PCL owned, furnished, or placed the ladder from which plaintiff fell, PCL failed to affirmatively demonstrate that it was free from negligence.
 
 

Sadowski v Windsor Vil. Apts. Co., LLC
December 8, 2021
Appellate Division, Second Department

 
Plaintiff was injured on September 12, 2017, while working on a construction and renovation project at a building located in Amityville. In April 2018, plaintiff brought suit against the alleged owners and managers of the subject premises, including, among others, defendant Village Brook alleging violations of Labor Law §§ 241(6), 200, and common-law negligence. Plaintiffs subsequently filed an amended complaint naming AJLB the alleged general contractor of the construction and renovation project, as an additional defendant. Neither Village Brook nor AJLB appeared or answered the amended complaint. The trial court denied plaintiff’s motion, pursuant to CPLR § 3215, for leave to enter a default judgment against the defendants and granted the cross motion of the defendant Village Brook pursuant to CPLR 3012(d) to compel the plaintiff to accept its late answer.
 
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s order as Village Brook articulated a reasonable excuse for its delay in appearing and answering the amended complaint and demonstrated a potentially meritorious defense to the action. Moreover, given that Village Brook’s delay was not willful, as well as the lack of prejudice to plaintiffs resulting from Village Brook’s delay in appearing and answering the amended complaint, the trial court providently exercised its discretion in granting that branch of Village Brook’s cross-motion.
 
PRACTICE POINT: To avoid the entry of a default judgment, a defendant who has failed to appear or answer the complaint must provide a reasonable excuse for the default and demonstrate a potentially meritorious defense to the action. A defendant who moves pursuant to CPLR § 3012(d) to compel plaintiff to accept late service of an answer is required to make a similar showing. Whether a proffered excuse is reasonable, is a determination to be made by the court on a case-by-case basis, based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits.
 
 

Seem v Premier Camp Co., LLC
December 15, 2021
Appellate Division, Second Department

 
Plaintiff was injured when a dump truck he was driving tipped over. He was transporting 60,000 pounds of gravel to a property owned by the Premier defendants where Dileo would use the gravel to resurface a parking lot at the property. A Dileo employee directed plaintiff to unload the gravel in a particular location, and an employee of Splash helped guide him to that spot. While raising the bed of the dump truck to unload the gravel, the dump truck began to list toward the driver's side, at which point the truck's rear tires popped, causing the truck to tip over. The trial court denied Dileo’s motion for summary judgment dismissing the complaint but granted Splash’s and the Premier defendants’ similar motions.
 
Labor Law § 240(1) (MAS)
The Second Department reversed the trial court’s order and granted Dileo’s motion as it established, prima facie, that plaintiff was not engaged in the erection, demolition, repairing, altering, painting, cleaning, or pointing of a building or structure and was not exposed to an elevation-related risk that the safety devices prescribed under Labor Law § 240(1) would have prevented.
 
PRACTICE POINT: Remember the four criteria of a Labor Law claim: Appropriate plaintiff, appropriate defendant, appropriate project, and elevation-related/gravity-related risk. Here, the last criterion was not met, since plaintiff was not exposed to an elevation-related or gravity-related risk at the time of his accident.
 
Labor Law § 241(6) (TPW)
The Second Department modified the underlying decision on the Labor Law § 241(6) claim.  Specifically, the trial court’s denial of Dileo’s motion seeking dismissing the Labor Law § 241(6) claim was affirmed as § 241(6) imposes on owners and contractors a nondelegable duty to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed and Dileo failed to establish that the annual resurfacing of a parking lot did not constitute such work.  Further, Splash failed to meet its burden with respect to the Labor Law § 241(6) claim as it failed to establish that it did not have supervisory control and authority over plaintiff's work.

However, the Court held the trial court should have denied that branch of the Premier defendants' motion to dismiss predicated upon alleged violations of 12 NYCRR 23-1.22(b)(1) and (c)(1) and 23-1.32. To prevail, plaintiff was required to establish the violation of an Industrial Code provision that sets forth specific, applicable safety standards, and that his or her injuries were proximately caused by such violation.  The Court noted that a distinction must be drawn between provisions of the Industrial Code mandating compliance with concrete specifications and those that establish general safety standards and the Premier defendants failed to establish that the aforementioned Industrial Code provisions were not sufficiently specific to support a cause of action.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed denial of Dileo’s motion for summary judgment as to Labor Law § 200 and common-law negligence. Where, as in this case, the accident is alleged to have arisen out of both a dangerous condition on the premises and the means and methods of the work, to obtain summary judgment, a defendant must address both categories. Dileo, however, failed to establish that it did not control the means and methods of plaintiff’s work or that it did not cause or create the allegedly defective condition that caused plaintiff’s injury.
 
As for Splash, the Court reversed the trial court’s decision dismissing the Labor Law § 200 and common-law negligence claims against it, as it also failed to establish that it did not control the means and methods of plaintiff’s work or that no defective condition existed. As for, Premier, the Court held that the trial court properly denied its motion to dismiss the Labor Law § 200 and common-law negligence. Contrary to the determination of the trial court, plaintiff’s allegations in the complaint and bill of particulars were sufficient to support those claims.
 
 

Venter v Cherkasky
December 15, 2021
Appellate Division, Second Department

 
Plaintiff was employed as a painter by L & T Finishing, a company hired by defendants to paint and re-finish cabinets and a kitchen island at their home. Plaintiff sustained injuries when an explosion occurred while he was applying lacquer thinner to remove paint from the kitchen island. The trial court granted defendants' motion for summary judgment dismissing the complaint. 
 
Labor Law § 241(6) (TPW)
The Second Department reversed the trial court’s dismissal of defendants’ Labor Law § 241(6) claim based on the exemption of owners of one- or two-family dwellings. The Court noted the phrase “direct or control” is construed strictly and refers to the situation where the owner supervises the method and manner of the work. In this instance, defendants failed to establish that they did not direct or control the method and manner of the work given plaintiff’s testimony that he received some instruction from the owner as to how his work was to be completed and the product he was to use. 
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department reversed the trial court’s decision granting summary judgment to defendant. Where, as in this case, the accident is alleged to have arisen out of both a dangerous condition on the premises and the means and methods of the work, to obtain summary judgment, a defendant must address both categories. In this case, however, the Court found that defendants failed to establish that they did not have actual or constructive notice of the allegedly dangerous electrical wiring in the kitchen, nor that they did not direct or control the method and manner in which the plaintiff performed the injury-producing work. The Court specifically noted that, although the OSHA citation to plaintiff’s employer was for failing to ensure that his employees did not apply a flammable liquid “within 50 feet of a source of ignition such as an operating refrigerator,” that citation did not eliminate all triable issues of fact as to the cause of the explosion.
 
 

Teodoro v C.W. Brown, Inc.
December 22, 2021
Appellate Division, Second Department

 
Plaintiff, an employee of nonparty WCE, was injured while he was fixing a light in a building leased to the defendant Pepsi. Pepsi had previously hired defendant CWB, to serve as general contractor on a renovation of two office spaces it leased, and CWB hired WCE to perform the electrical work for the renovation. Pepsi also separately retained WCE to perform maintenance work in the building. The trial court denied plaintiff's motion to compel CWB to produce an additional witness for a deposition.
 
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s order. A party seeking additional depositions has the burden of demonstrating (1) that the representative already deposed had insufficient knowledge, or were otherwise inadequate, and (2) there is a substantial likelihood that the persons sought for depositions possess information which is material and necessary to the prosecution of the case. Here, the record demonstrates that plaintiff was performing work for Pepsi, not CWB, when he was injured. Therefore, plaintiff failed to demonstrate that there was a substantial likelihood that the additional witness possessed information that was material and necessary to the prosecution of plaintiff’s case.
 
PRACTICE POINT:  In this case, we have a procedural issue to deal with, which is essential to remember in all types of lawsuits, and particularly important to us in the Labor Law practice: The shifting burden of proof.  Remember, the moving party bears the burden of proving their case.
 
 

Teodoro v C.W. Brown, Inc.
December 22, 2021
Appellate Division, Second Department

 
Same case as above.  Plaintiff was standing on a ladder attempting to fix the inoperable light fixture when he lifted the cover of the electrical box and received an electric shock. Westpark leased the building to defendant Nine West, who subleased space in the building to Pepsi. Pepsi hired CWB to serve as general contractor on a renovation of its space in the building, and CWB hired WCE to perform the electrical work for the renovation. Pepsi also separately retained WCE to perform maintenance work in its space within the building. The trial court denied plaintiff's motion for summary judgment on the Labor Law §§ 240(1), 241(6), and 200 claims. The trial court also granted CWB’s motion for summary judgment dismissing the complaint against it and denied plaintiff's cross-motion to strike that defendant's answer due to spoliation of evidence and granted Westpark’s and Nine West’s motion for summary judgment dismissing the complaint against them. Finally, the trial court also granted Pepsi’s motion for summary judgment dismissing the complaint asserted against it.
 
Labor Law § 240(1) (MAS)
The Second Department affirmed as defendants established their prima facie entitlement to judgment as a matter of law dismissing the claim alleging a violation of Labor Law § 240(1) as they offered evidence that plaintiff was injured while involved in routine maintenance when he attempted to replace the ballast. Thus, his work involved the replacement of a worn-out component and did not constitute “repairing” under the statute so as to bring him within the protective ambit of that statute.
 
PRACTICE POINT: Routine maintenance vs. Repair - Part 2.  This case is another fine example of routine maintenance, which is defined as “replacing components that require replacement in the course of normal wear and tear.” Routine maintenance is not protected activity under Labor Law §§ 240(1) and 241(6).
 
Labor Law § 241(6) (TPW)
The Second Department affirmed the dismissal of the Labor Law § 241(6) claim as it held plaintiff’s work involved the simple replacement of a worn-out lighting component and did not constitute “repairing” within the meaning of Labor Law. Defendants established that plaintiff was not involved in the activity of construction, excavation, or demolition, and the statute does not protect workers involved in routine maintenance.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed dismissal of the Labor Law § 200 and common-law negligence claims. In this “means and methods” case, the Court held that defendants demonstrated their entitlement to judgment as a matter of law, as the record demonstrated that they did not supervise, direct, or control the plaintiff’s work.
 
 

Capuzzi v Fuller
December 23, 2021
Appellate Division, Third Department

 
Defendants hired plaintiff to perform construction work for a new house. According to plaintiff, he sustained personal injuries after falling fourteen feet while in the process of installing floor joists across the span of a concrete foundation. The trial court partially denied defendants' motion for summary judgment dismissing the complaint.
 
Labor Law § 240(1) (MAS)
The Third Department reversed the trial court and dismissed the Labor Law §§ 240(1) and 241(6) claims based on the homeowners’ exemption. Defendants submitted an affidavit stating that although he visited the site from time to time, observed the progression of the construction work and paid plaintiff, and he did not exert supervisory control over plaintiff nor did he direct him in his work. Plaintiff’s affidavit failed to raise a material issue of fact as his evidence did not indicate that defendant directed plaintiff on how to install the floor joists or to climb onto them as part of the installation process. Although plaintiff also stated that defendant provided directions and instructions as to plaintiff’s carpentry work, he did so only in a conclusory manner and did not explain how such work related to the installation of the floor joists.
 
PRACTICE POINT: The homeowner exemption applies to the owners of a one- or two-family home who contract for, but do not supervise, direct, or control the work. Here, plaintiff’s injury was caused by the installation of the floor joists and there was no proof that defendant directed plaintiff as to that work.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Third Department reversed the trial court’s order denying summary judgment on the Labor Law § 200/common-law negligence claims. It held that the evidence demonstrated that defendant did not control or direct the manner or means of plaintiff’s work installing the floor joists. Accordingly, these claims should have been dismissed.
 
 

Russo v Van Dale Props., LLC
December 23, 2021
Appellate Division, Third Department

 
Plaintiff, a machine equipment operator, was injured when an overhead door closed on him. The accident occurred at plaintiff's workplace, which was leased from defendant by plaintiff's employer. Earlier that day, the door was damaged by one of plaintiff's coworkers. Plaintiff and his coworkers realized at the end of their shift that the door would not close because of that damage, prompting them to discuss how to get it shut so that they could secure the building and go home. One of plaintiff's coworkers made an unsuccessful attempt to close the door by cutting a supporting cable that had come unspooled. Plaintiff, who was walking outside to pull on the cable in a further effort to dislodge the door, was then injured when one of his coworkers manipulated the door with a crowbar and caused the door to suddenly fall on him. The trial court granted plaintiff's motion for partial summary judgment. 
 
Labor Law § 240(1) (MAS)
The Third Department affirmed the trial court’s order, finding that plaintiff was engaged in a protected activity as he and his coworkers were attempting to make emergency repairs to a “door [that] would not function properly” without them. Given the lack of dispute that a safety device should have been used to prevent the door from falling while it was being repaired and that the absence of that device was the proximate cause of his injuries, the trial court properly granted plaintiff’s motion for summary judgment.
 
PRACTICE POINT: Routine maintenance vs. Repair - Part 3. In determining whether work is considered a “repair” under Labor Law § 240(1), a factor to be considered is whether the work in question was occasioned by an isolated event, as opposed to a recurring condition. In this case, the critical fact was that plaintiff and his coworkers needed to make “emergency” repairs to a door that was not working.  Therefore, their work constituted repair and not routine maintenance.


 

 

 New York Industrial Code Regulations (EDA)

 

12 NYCRR 23-1.22(c)(1) Any platform used as a working area or used for the unloading of wheelbarrows, power buggies, hand carts or hand trucks shall be provided with a floor of planking at least two inches thick full size, exterior grade plywood at least three-quarters inch thick or metal of equivalent strength. Platforms used for motor trucks or heavier vehicles shall be provided with floors of planking at least three inches thick full size or metal of equivalent strength.

Regulation § 23–1.22(c)(1) establishes standards for construction of platforms for the use of wheelbarrows, power buggies, hand carts, hand trucks, and vehicles, and sets forth specific standards sufficiently specific to support to support a § 241(6) cause of action.

Ramirez v Metropolitan Transp. Authority, 106 AD3d 799, 965 NYS2d 156 (2d Dept 2013) (§ 23-1.22(c), which prescribed standards for planking on platforms used as working areas or for unloading, potentially applicable to accident occurring when plank in catwalk used over elevated subway track broke).
Olson v Pyramid Crossgates Co., 291 AD2d 706, 738 NYS2d 430 (3d Dept 2002) (§ 23-1.22(c) applicable only to platforms whose purpose is to facilitate work by supporting workers or their materials);

Dzieran v 1800 Boston Road, LLC, 25 AD3d 336, 808 NYS2d 36 (1st Dept 2006) inapplicable to platform being constructed for storage purposes)
Mutadir v 80-90 Maiden Lane Del LLC, 110 AD3d 641, 974 NYS2d 364 (1st Dept 2013) (§ 23-1.22(c), inapplicable where plaintiff fell from milk crates on which he was standing to install “slot boards” for shelves on interior walls)
Vislocky v New York, 62 AD3d 785, 879 NYS2d 176 (2d Dept 2009) (§ 23-1.22(c) inapplicable to 20-foot-high concrete pedestal on which plaintiff stood as he applied jackhammer to rebars installed in center of pedestal);
Bryant v General Elec. Co., 221 AD2d 687, 633 NYS2d 410 (3d Dept 1995) (§ 23-1.22(c) questions of fact exist whether the pipe plaintiff straddled constituted a “platform”).
Pilato v Nigel Enterprises, Inc., 48 AD3d 1133, 850 NYS2d 799 (4th Dept 2008) (§ 23-1.22(c) inapplicable where plaintiff claimed that he fell between ceiling joists)

 

 

Labor Law Pointers
 
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Eric S. Bernhardt

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Brian F. Mark

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Timothy P. Welch

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