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Labor Law Pointers - Volume XI, No. 3

 

Volume XI, No. 3 Wednesday, February 2, 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.  I have used this opening from the beginning, over 11 years ago, shamelessly stolen from Dan Kohane, and I still marvel at the number of calls that start with “Hey David, I have this situation, can you help me?”  It is truly the highlight of my day.   In response to some discussions and comments we have had with various carriers and clients, we are officially announcing our new CAT Team here at Hurwitz & Fine, specifically devoted to handling cases with catastrophic injuries.  I have been handling these cases: death, paralysis, traumatic brain injuries, severe burns, and loss of limbs, to name some of the more prevalent, for over 25 years.  It was recommended that we mention we have a team devoted to this type of case, sometimes a “bet the company” case, as Harry Mooney was known to say, that has not just the legal skills needed, but the organizational ability to coordinate the various aspects of the case, from Risk Transfer, to Coverage, to experts on both liability and damages.  While we have been doing this work for many years, we are officially introducing our CAT Team, specifically developed to handle these cases.    The team is composed of proven, experienced, trial attorneys identified with substantial experience in various areas.  We have coverage attorneys to assist on the coverage and risk transfer issues, experienced paralegals to make sure we have every medical record from not just the accident but also to establish a baseline for the plaintiff, an RN nurse paralegal to review the records received and prepare summaries and chronologies on the records, not just for depositions, but also to more easily understand the extent of the injury, and to have the records prepared for the medical experts that will be needed.  I lead the team and, with my many years of experience in Labor Law, (unfortunately an area which has a lot of catastrophic injuries) as well as products liability and other catastrophic injury cases, I have accumulated the experience, both at trial and preparing for and negotiating settlements, to deal with the complexities of these cases.  With team members across the state, we are available any time and any place.  Please feel free to reach out any time to discuss. We are here to help, especially when the worst happens.  Here is a link to our CAT team page, which explains our philosophy and introduces the team members.   Moving on to the photos of the month, our first offering has a welder who was retained by the owner, and is constructing a new patio for a restaurant.  When the ladder – balanced on a few pieces of board, balanced on steel floor joists, and held steady by a co-worker, who is also balancing on the joists – shifts, causing him to fall from the ladder, does he have a § 240(1) case?     This one is pretty simple; the plaintiff is a person so employed and thus a valid plaintiff.  The property owner is a valid defendant, as a restaurant is a commercial property and thus no exception exists for them.  The project was construction; an activity provided the protections of the Labor Law, and the injury caused by the application of gravity.  This is one to look for early resolution opportunities and prepare to defend on damages.   In our next offering, we have a plaintiff who was retained to figure out why the air vents from a foundry were not working properly.  He climbed the ladder to the roof to check and found that the filters on the vents had not been replaced and were restricting the air flow.  Plaintiff pulled a portion of the filter out to check the size and, as he attempted to climb down, the ladder shifted and he fell, causing him to break both legs.  § 240(1) case?     In this case, we have a valid plaintiff and defendant.  The plaintiff was injured by the application of gravity but, let’s look at the job undertaken to see if it provides the plaintiff with the protections of § 240(1).  He was called to check on the vents, as they were not working properly. Thus, plaintiff will argue it was repair, a protected activity.  The defense, if they have been reading Labor Law Pointers regularly (like you good and loyal subscribers), would instantly know that this is maintenance, and not repair.  Vent filters need regular replacement and are specifically designed to be replaced regularly, thus maintenance and not repair, and no § 240(1) case.  In a case like this, I would get the instructions for use of the filter to confirm the regularity of replacement, and maintenance records, to establish how often they were replaced.  Summary judgment for the defendant.   In our third photo, we have a plaintiff applying sealer on the brick parapet of the roof of an apartment building.  He was a brand-new employee of the building, and thus properly scared about working on a narrow ledge, 6 stories above the road below.  To make him calmer, the owner of the building agreed to get a safety harness and attach the plaintiff, so he couldn’t fall.  Never actually owning a harness, the owner simply looped a lifting strap around the plaintiff and held the other end, as he had no intention of going out on the ledge himself.  The owner, not one to take chances with his own life, was careful not to loop the strap around his own wrist, just in case the plaintiff fell, so he would not be pulled off the roof as well.  Plaintiff’s foot slipped off the ledge, the owner quickly let go of the strap, avoiding injury, and the plaintiff fell.  Luckily for the plaintiff, he landed in a truck hauling garbage, so while he did not smell very good for a while, he only sustained a fractured arm and a concussion.  § 240(1) case?     At first blush, we seem to have the elements of a § 240(1) case.  There is the property owner, the plaintiff is a person so employed, the job is clearly an alteration of the building and thus, covered, and the plaintiff is injured by the application of gravity.  The fly in the ointment for the plaintiff is §11 of the Workers’ Compensation Law, which provides that a worker may not sue his employer and his sole remedy is workers' compensation.  Assuming the owner had workers’ compensation insurance for his worker, the plaintiff has no § 240(1) claim against his employer, the owner of the building or structure.  Given that the owner does not even have a harness, he may not have purchased workers’ compensation insurance and plaintiff then would have a statutory right to sue his employer.   In our final photo quiz of the month, we have a homeowner who has been bothered for months that he doesn’t have a ladder long enough to change the lightbulb over his garage doors.  As he sees a construction crew out in the road, he offers to pay a worker to change the bulb for him, recommending that they could use the backhoe to lift his ladder and, in fact, showing them how to do it.  Once the plaintiff was lifted up in the bucket, he then set and climbed the ladder and, when the ladder surprisingly slid in the bucket and shifted, causing plaintiff to fall, the owner said, “Oops, maybe that was not a good idea after all.”  § 240(1) case?         Well, we have a plaintiff who is so employed and thus, appropriate.  The owner is the owner of a single-family home, who might be able to utilize the § 240(1) exemption, but unfortunately for him, he did, in fact, direct the work, removing him from the class of single- or double-family homeowners; so he is a valid defendant.  The plaintiff was injured by the effect of gravity, so we can check that box.  Let’s then analyze the task being undertaken, changing a lightbulb.  Much like the case above where the plaintiff was changing a filter, lightbulbs have a life cycle and need to be replaced. Thus, replacing a lightbulb is maintenance and not repair, even though the bulb was burned out and would not work.  I have often wondered, given the LED bulbs now used, if at some point a plaintiff will claim that it is NOT maintenance, as these bulbs are rated to last for years; though, I still believe that, as they are made to be replaced when burned out, changing a lightbulb will always be maintenance.   Have a great month, it’s a short one, so you will hear from us again in 28 days, or sooner if you have a situation and want to call for some advice. It’s free; just give me a call, send a text, or email me.    Remember, we have a multitude of training opportunities available, so just let us know.  If you have team members new to Labor Law, we have options, and if your experienced members need a more focused session, we have that as well.   

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. Employment & Business Litigation Pointers:   This newsletter aims to provide our clients and subscribers with timely information and practical, business-oriented solutions to the latest employment and general business litigation developments.  Contact Joseph S. Brown at [email protected] to subscribe. Medical & Nursing Home Liability Pointers:  Medical & Nursing Home Liability Pointers provides the latest news, developments, and analysis of recent court decisions impacting the medical and long-term care communities. Contact Chris Potenza at [email protected] to subscribe.  

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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. 

Mateo v Iannelli Constr. Co. Inc. January 04, 2022 Appellate Division, First Department  

Plaintiff fell after trying to climb over an air duct that was left on the floor during the demolition work his employer was subcontracted to perform. The trial court denied defendant’s motion for summary judgment dismissing the Labor Law § 241(6) claim predicated on Industrial Code (12 NYCRR) § 23-1.7(e)(2), granted plaintiff’s cross motion for summary judgment on partial liability under § 241(6), and denied defendant’s motion seeking dismissal of the § 200 and common-law negligence claims. 

 

Labor Law § 241(6) (TPW) The Appellate Division, First Department unanimously reversed the trial court’s order and granted defendant’s motion, dismissing the Labor Law § 241(6) claim.  The court found that the air duct over which plaintiff tripped was an integral part of the work, rendering Industrial Code § 23-1.7(e)(2) inapplicable.   Labor Law § 200 and Common-Law Negligence (ESB) The First Department reversed the trial court’s order denying summary judgment to defendant on plaintiff’s Labor Law § 200 claim. It found that defendant could not be held liable under § 200 because the presence of the air duct on the floor was a condition created by the means and methods of plaintiff’s (or his employer’s) work, and defendant had only general supervisory authority over the construction site. As plaintiff testified that he received instructions only from his employer’s foremen, the Court held that defendant did not control plaintiff’s work.

    Peranzo v WFP Tower D Co. L.P. January 11, 2022 Appellate Division, First Department  

Plaintiff, while employed by third-party defendant Commodore, fell over scaffold bracing on a construction site while attempting to climb over the cross-bracing bar, rather than using the available openings in the scaffold, which had no bars. The horizontal cross-bracing bar was affixed to the scaffold about 14 inches above the ground. The construction manager, Structure Tone, hired Commodore to perform carpentry and hired defendant/third party plaintiff Titanium to erect scaffolding at the site. Titanium did not erect the scaffolding.  Instead, it subcontracted the scaffold erection to third-party defendant Pier Head. The language of Pier Head’s indemnity agreement required Pier Head’s negligence to trigger indemnity.    The trial court granted Pier Head’s motion for summary judgment dismissing Titanium’s third-party claim for contractual indemnification and denied Titanium’s cross-motion for summary judgment on its contractual indemnity claim against Pier Head. It also denied Titanium’s motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims against it, denied Titanium’s motion for summary judgment dismissing WFP Tower’s, Brookfield’s, and Structure Tone’s crossclaims for contractual indemnity as against it, denied Titanium’s motion for summary judgment on its third-party claim for contractual indemnity against Commodore, granted, unconditionally, WFP Tower’s and Brookfield’s motion for summary judgment on their contractual indemnity claims against Titanium, granted, conditionally, Structure Tone’s motion for summary judgment on its contractual indemnity claim against Titanium, and granted Commodore’s cross-motion for summary judgment dismissing Titanium’s contractual indemnification claim as against it.   Labor Law § 200 and Common-Law Negligence (ESB) The First Department reversed the order denying Titanium and Structure Tone’s motions to dismiss the Labor law § 200 and common-law negligence claims. As for the claims against Titanium, it found that Titanium (which did not erect the scaffold) established that the horizontal cross-bracing bar affixed to the scaffold, about 14 inches above the ground, which plaintiff tripped over while attempting to step over it, was open and obvious, and not inherently dangerous.  Moreover, plaintiff, a carpenter for 28 years, testified that the cross-bracing was readily observable, he was aware of its presence, having stepped over it without incident on four to six prior occasions, and that the bar was stationary and secure and did not move or shift when his foot struck it. Consequently, plaintiff’s own imprudent act of attempting to climb over the cross-bracing bar, rather than use the available openings in the scaffold, without bars, was the sole proximate cause of his injury. Admittedly, plaintiff was aware of the safer method available to him but chose not to use it.   As for Structure Tone, the Court found that it also could not be held liable for plaintiff’s injuries on the ground that the condition was not inherently dangerous. Therefore, the Court searched the record and granted summary judgment to Structure Tone as well.   Indemnity Issues in Labor Law (BFM) The First Department affirmed the dismissal of Titanium’s contractual indemnification claims against Pier Head, as there was no evidence that Pier Head was negligent in the performance of its contract with Titanium so as to trigger the indemnification clause of the parties’ subcontract. The Court further held that Titanium’s motion to dismiss the contractual indemnification claims brought by WFP Tower, Brookfield, and Structure Tone should have been granted and that WFP Tower’s, Brookfield’s, and Structure Tone’s motions for summary judgment on their contractual indemnification claims against Titanium should have been denied.  The language of the indemnification provision in the parties’ contract specifically provided for indemnification from acts, omissions, breach, or default of Titanium and its subcontractors, in connection with the performance of the work.  Having found that plaintiff’s injuries were not caused by any acts, omissions, breach or default of Titanium or its subcontractors, but rather by plaintiff’s own actions, the Court held that Titanium had no obligation to indemnify WFP Tower, Brookfield, or Structure Tone. The First Department upheld the trial court’s denial of Titanium’s contractual indemnification claim against Commodore and grant of Commodore’s motion for summary judgment dismissing that claim, finding that the purported indemnification agreement between Titanium and Commodore was not authenticated, and was insufficient to support summary judgment.  The Court also noted that the indemnification agreement lacked consideration because Commodore was hired by Structure Tone.    

Tolk v 11 W. 42 Realty Invs., L.L.C. January 11, 2022 Appellate Division, First Department

 

Plaintiff, a carpenter for JK Flooring, and his coworkers were required to use the loading dock entrance, where they would check in with security and go down to the basement level; from the basement, the workers proceeded to the floors where construction was ongoing. Although workers had the option of using a single-stop elevator to gain access to the basement, plaintiff’s uncontradicted testimony showed that the workers used the staircase, not the elevator.  Plaintiff described the staircase as having “worn-out metal diamond” steps. As he stepped down on the first step, plaintiff’s foot slid completely off the step because, he claimed, it was wet. The trial court granted CJS Industries, Inc.’s summary judgment motion dismissing the complaint as against it. 

 

Labor Law § 241(6) (TPW) The Appellate Division, First Department unanimously modified the order granting CJS Industries Inc.’s motion for summary judgment and reinstated plaintiff’s Labor Law § 241(6) claim predicated on violation of 12 NYCRR 23-1.7(d).  The court held that for the purposes of section 23-1.7(d) a staircase may constitute a passageway when that staircase is the sole access to the work site.  Testimony revealed that although workers had the option of using a single-stop elevator to gain access to the basement, plaintiff’s uncontradicted testimony revealed that the workers used the staircase for access and the elevator only for delivery of construction materials.  Therefore, the staircase was deemed to be a passageway for purposes of Labor Law § 241(6).

 

Labor Law § 200 and Common-Law Negligence (ESB) The First Department affirmed dismissal of plaintiff’s claims pursuant to Labor Law § 200 and common-law negligence. The only evidence regarding the wet condition on the staircase was plaintiff’s own testimony: that the condition was created by a building maintenance worker shortly before the accident. Plaintiff testified that he confronted the worker, who was carting a large barrel of liquid with a hose attached, and that the worker apologized, as did his supervisor. Thus, there was no evidence that defendant caused the condition, was aware of the condition, or could be charged with constructive notice.

    Venezia v LTS 711 11th Ave. January 11, 2022 Appellate Division, First Department  

Plaintiff was injured when he allegedly slipped and fell on snow or ice while walking from one area on a roof, where he was performing masonry work, to the roof exit. The trial court denied plaintiff’s motion for summary judgment on his Labor Law § 241(6) claim predicated on Industrial Code (12 NYCRR) § 23-1.7(d), as well as on his Labor Law § 200 and common-law negligence claims.   Labor Law § 241(6) (TPW) The First Department unanimously affirmed denial of plaintiffs’ motion for summary judgment on the issue of Labor Law § 241(6).  It held that outstanding issues of fact precluded summary judgment.  The record contained competing evidence as to the location of the accident, whether a path had been cleared so that workers could safely walk, and whether it was necessary for plaintiff to traverse the area where he allegedly fell.  As such, the court affirmed denial of the motion without addressing the specific elements of the of the Industrial Code section allegedly violated. 

 

Labor Law § 200 and Common-Law Negligence (ESB) The First Department affirmed denial of summary judgment on plaintiff’s Labor Law § 200 claim.  In this “dangerous condition” claim, the Court first noted that to meet his burden, plaintiff must show that defendant either created the dangerous condition or failed to remedy same despite having actual or constructive notice thereof. The Court found, however, that the record contained competing evidence as to the location of the accident (plaintiff’s coworker and the general contractor’s superintendent testified to differing accident locations), whether a path had been cleared so that workers could safely walk between the stairway and the location on the roof where the work was being performed (plaintiff and his co-worker claim there was no path, the general contractor claims there was), and whether it was necessary for plaintiff to traverse the area where he allegedly fell (the superintendent testified there was no work being done in the area where plaintiff allegedly fell and it was not on a path between that area and the stairs).

    Vargas v 1166 LLC January 27, 2022 Appellate Division, First Department  

At premises owned by 1166 LLC, Verus Construction, the general contractor on the project, subcontracted with Precision, plaintiff’s employer, a drywall taper. While working on the project, plaintiff allegedly fell off a scaffold and was injured. He testified that, although he asked his foreman for guardrails, they were never provided to him. Precision’s field supervisor and its vice president both testified that Precision’s workers were specifically instructed to use guardrails when assembling their scaffolds, and that guardrails were readily available for workers’ use; however, they maintained that plaintiff did not use the guardrails. The trial court denied plaintiff’s motion for summary judgment on the Labor Law § 240(1) claim and granted 1166 LLC’s and Verus Construction’s (collectively defendants) motion for summary judgment on their third-party claim for contractual indemnification against Precision. 

 

Labor Law § 240(1) (MAS) 

The First Department affirmed the trial court’s decision to deny plaintiff summary judgment. The Court held that plaintiff established prima facie entitlement to partial summary judgment on liability under Labor Law § 240(1). However, the Court also held that 1166 LLC and Precision raised an issue of fact as to whether plaintiff’s conduct was the sole proximate cause of his accident, based on the testimony that plaintiff declined to use guardrails, although he was instructed to do so, and even though guardrails were available. The field supervisor attested that he arrived on the scene as plaintiff was getting into the ambulance and proceeded straightaway to the worksite, where he found the Baker scaffold that plaintiff had been using to be in good condition, but the guardrails that plaintiff had been instructed to use were leaning up against a nearby wall.

 

PRACTICE POINT: A defendant has no liability under the sole proximate cause defense to a Labor Law § 240(1) claim when the injured worker: (1) had adequate safety devices available; (2) knew both that safety devices were available and that he or she was expected to use them; (3) chose for no good reason not to use, or misused, the available and appropriate safety devices; and (4) he or she would not have been injured had he or she not made that choice. Here, the court found a triable issue of material fact as to whether plaintiff declined to use the readily available guardrails even though he was instructed to do so.

 

Labor Law § 200 and Common-Law Negligence (ESB) This case presents an interesting procedural course. The trial court granted defendant’s motion for summary judgment as to Labor Law § 200, with the consent of the plaintiff. It did not, however, explicitly rule on the portion of the motion addressing the common-law negligence claims. To address this issue, the First Department noted that Labor Law § 200 is a codification of the common-law duty of care; therefore, a Labor Law defendant cannot be found liable for common-law negligence if it did not also violate Labor Law § 200. Consequently, the Court searched the record and granted summary judgment to defendants on plaintiff’s common-law negligence claim.   Indemnity Issues in Labor Law (BFM) As mentioned above, the trial court granted summary judgment to the defendants, dismissing the Labor Law § 200 claim, but did not explicitly rule on the common-law negligence claim.  The First Department noted that in the abosence of a violation of § 200, defendants cannot be found liable for common-law negligence.  Since there was no basis for finding defendants actively negligent in connection with plaintiff’s accident, defendants were properly awarded contractual indemnification from Precision. Precision’s contractual indemnification agreement with defendants requires it to indemnify defendants “from and against any and all claims arising from or in connection with ... any work or thing whatsoever done ... in or about the Premises.” Thus, Precision’s contractual duty to indemnify defendants was triggered because plaintiff’s accident arose from his performance of his work as a Precision employee, regardless of whether Precision was negligent.

 

Abelleira v City of New York

January 12, 2022

Appellate Division, Second Department

  Plaintiff was injured in an accident at a construction project undertaken by the City of New York and New York City Department of Environmental Protection, involving the installation of sewer pipes in Brooklyn. Plaintiff was pressure-testing a sewer pipe for leaks at the construction project when a plug in the pipe exploded. The trial court entered judgment on a jury verdict in favor of defendants on the issue of liability, and on the denial of plaintiffs’ motion, in effect, pursuant to CPLR § 4404(a) to set aside the jury verdict and for judgment as a matter of law; or, alternatively, to set aside the jury verdict as contrary to the weight of the evidence, and for a new trial. In short, the judgment was for defendants, dismissing the complaint.   Labor Law § 200 and Common-Law Negligence (ESB) The Second Department affirmed the jury’s verdict dismissing plaintiff’s Labor Law § 200 claim.  In this “means and methods” case, the Court found that, based on the evidence presented at trial, the jury reasonably could have concluded that defendants did not have the authority to supervise or control the performance of the work that led to plaintiff’s injuries. Therefore, there was legally sufficient evidence to support the jury’s verdict in favor of defendants on the issue of liability.  Further, the jury’s verdict was supported by a fair interpretation of the trial evidence. Thus, the verdict was not contrary to the weight of the evidence.

    Sanchez v 74 Wooster Holding, LLC January 12, 2022 Appellate Division, Second Department  

Plaintiff allegedly was injured after he tripped and fell into an empty swimming pool while performing construction work on defendant’s premises. Plaintiff was an employee of nonparty ABR at the time of the accident, and was working at the premises pursuant to a construction contract between defendant and ABR. The trial court denied plaintiff’s motion for summary judgment under his Labor Law §§ 240(1) and 241(6) claims.   Labor Law § 240(1) (MAS) 

The Second Department affirmed the trial court’s order, as plaintiff’s evidence failed to establish that his accident resulted from the kind of elevation-related hazards contemplated by Labor Law § 240(1). In other words, the Court held that plaintiff failed to demonstrate entitlement to judgment as a matter of law on the issue of liability on his § 240(1) claim.   PRACTICE POINT: Labor Law § 240(1) does not apply to any and all perils connected in some tangential way with the effects of gravity.  Rather, it applies only where a worker’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential. Here, however, plaintiff’s work did not call for the use of the protective devices mentioned in the statute to prevent elevation-related risks.   Labor Law § 241(6) (TPW) The Second Department affirmed denial of plaintiff’s Motion for Summary Judgment as to liability pursuant to Labor Law § 241(6).  Without identifying the Industrial Code sections alleged to have been violated, the court held that plaintiff failed to establish, prima facie, that any of the Industrial Code provisions applied to the underlying facts of the case.

  Venegas v Shymer January 26, 2022 Appellate Division, Second Department  

Merrick, the property owner, hired Shefa to construct a two-family dwelling to be used by Merrick for investment purposes. Shefa hired Salamon’s to frame the dwelling. Plaintiff, a construction worker with a nonparty subcontractor, was injured when he fell 25 to 30 feet while installing a prefabricated roof truss. The trial court denied plaintiff’s motion for summary judgment on the Labor Law §§ 240(1) and 241(6) claims against Merrick, Shefa, and Salamon’s, and granted Salamon’s motion for summary judgment dismissing the complaint asserted against it.

 

Labor Law § 240(1) (MAS) The Second Department reversed the trial court’s order and granted summary judgment to plaintiff, who demonstrated that his injuries were proximately caused by the failure of Merrick and Shefa to provide him with appropriate safety devices that could have prevented his fall. In opposition, the Court held that Merrick and Shefa failed to raise a triable issue of fact as to whether a statutory violation occurred, or whether plaintiff’s actions were the sole proximate cause of his injuries. (Plaintiff did not appeal the Salamon’s decision on § 240(1)).   PRACTICE POINT: This is a classic Labor Law § 240(1) fall from a height case and an injured worker will be entitled to summary judgment under such a claim if he or she can establish: (1) that an owner or contractor and their agents failed to provide appropriate safety devices at an elevated work site; and that (2) such violation of the statute was the proximate cause of his or her injuries.

 

Labor Law § 241(6) (TPW) The Second Department held plaintiff failed to establish entitlement to judgment as a matter of law on the issue of liability on the Labor Law § 241(6) claim.  Plaintiff alleged violation of Industrial Code sections 12 NYCRR 23-1.16 and 23-1.17 which set forth standards for safety belts and similar items, and for life nets, respectively.  The court held those standards were inapplicable, as plaintiff, according to his own deposition testimony, was not provided with any safety devices in the first place. 

  Beltran v Waterfront Hous. Dev. Fund Corp. January 28, 2022 Appellate Division, Fourth Department  

Plaintiff allegedly was injured when he fell from a roof under construction. His accident occurred after he climbed onto the roof and was trying to reach for a safety line, which was laying higher up on the roof, in order to tie off before starting his work. As he did so, his feet suddenly slipped out from under him, causing him to fall down onto the roof before sliding down and over its edge, to the ground below. The owners of the Project were the “Waterfront defendants.” Norstar was the general contractor on the project, who entered into a subcontract agreement with R & P, whereby R & P was hired to “supply all labor, materials, tools, equipment, and supervision required to complete the Foundations [and] Rough Carpentry (Furnish and Install) Work” on the Waterfront Project. R & P subsequently contracted all aspects of the framing installation portion of the work to S.A.B.   The subcontract between R & P and S.A.B. consisted of a Master Subcontract Agreement and a Work Order. S.A.B. then entered into eight separate subcontracts (one for each building to be constructed) with four different subcontracting firms, whereby it subcontracted a portion of the work it undertook pursuant to its own subcontract agreement with R & P, namely, the provision of “all labor and equipment necessary to rough frame” each building to be constructed “in accordance with final project drawings, specifications, attachment “A” Scope of Work ...” Specifically, with respect to Building #2, S.A.B. entered into a “Subcontractor Agreement” with the third-party defendant Zuniga Builders.   The trial court denied the motions of defendants and third-party plaintiff S.A.B. for summary judgment dismissing the complaint, and denied, in part, the cross-motion of third-party defendant Zuniga to dismiss the third-party complaint against it. The trial court also granted plaintiff’s motion for partial summary judgment on the issue of liability under Labor Law § 240(1).   Labor Law § 240(1) (MAS) 

The Fourth Department dismissed third-party defendant’s appeal of the trial court’s order, granting summary judgment to plaintiff under Labor Law § 240(1), and denying S.A.B.’s cross-motion to dismiss the complaint, because third-party defendant was not aggrieved by that order. The Court noted that defendants are aggrieved by that order insofar as it grants plaintiff’s motion, but not insofar as it denies S.A.B’s cross-motion. The Court affirmed summary judgment to plaintiff because he met his initial burden, and defendants and S.A.B. failed to raise a triable issue of material fact in opposition. The Court also affirmed that portion of the trial court’s order denying S.A.B.’s cross-motion, finding S.A.B. is an entity subject to liability under Labor Law § 240(1).   PRACTICE POINT: This case reminds us of the four criteria for every Labor Law claim: (1) appropriate plaintiff; (2) appropriate defendant; (3) appropriate project; and (4) elevation-related/gravity-related risk. Here, the second criterion was met as to S.A.B., which was delegated responsibility for site safety under its subcontract and, thus, was an appropriate Labor Law defendant.   Indemnity Issues in Labor Law (BFM)

The Fourth Department held that the defendants’ appeal must be dismissed because they were not aggrieved by the subject order. As to the merits of the appeal, the Court concluded that S.A.B. was entitled to contractual indemnification from third-party defendant. 

 

Malvestuto v Town of Lancaster January 28, 2022 Appellate Division, Fourth Department

 

Plaintiff was working in a trench, at a construction site owned by defendant. As he was performing his work, plaintiff was struck in the leg by the bucket of an excavator situated on the edge of the trench above him and was injured. The trial court granted plaintiffs’ motion on the Labor Law §§ 240(1) and 241(6) claims, the latter based on violations of Industrial Code §§ 23-9.4 (c) and 23-9.5 (a). The trial court also granted plaintiff’s motion with respect to the issue of plaintiff’s lack of comparative negligence. The trial court further granted defendant’s cross-motion with respect to the Labor Law § 200 claim, and the § 241(6) claim insofar as it was based on other alleged regulatory violations.

Labor Law § 240(1)(MAS) 

The Fourth Department unanimously reversed the trial court’s order and denied plaintiff summary judgment motion because his own submissions created a triable issue of fact concerning the way the accident occurred. Specifically, the Court found an issue as to whether plaintiff was injured due to a risk contemplated by the statute, or alternatively, by “the usual and ordinary dangers of a construction site.” However, the Court rejected defendant’s contention that the trial court erred in denying its cross-motion regarding this claim, since defendant’s submissions raised the same triable issue of fact.   PRACTICE POINT: Inconsistent versions of how the accident occurred should always raise a triable question of fact, because they intrude on the jury’s role in determining the credibility of witnesses (i.e., as finders of fact). A Plaintiff in such circumstances cannot meet his burden of proving that defendant’s alleged failure to provide plaintiff with proper protection proximately caused his or her injuries.  Conversely, it also means that a Defendant also will not be entitled to summary judgment for the same reasons.

 

Labor Law § 241(6) (TPW) 

The Fourth Department reversed the order granting plaintiffs’ motion with respect to the Labor Law § 241(6) cause of action.  It held that an issue of fact as to the way the accident occurred precluded a determination, as a matter of law, whether the alleged Industrial Code regulations were violated.  On the same basis, it held the trial court properly denied defendant’s cross-motion on the Labor Law § 241(6) cause of action.  The Fourth Department also held that the trial court erred in determining, as a matter of law, that plaintiff was free from comparative negligence (which, unlike § 240(1), can be considered in § 241(6) cases). 

 

Lastly, the court affirmed the trial court’s order granting defendant’s cross motion to dismiss the § 241(6) cause of action based upon the alleged violation of 12 NYCRR 23-4.2(k).  It held that section is not sufficiently specific to support a cause of action under Labor Law § 241(6).

 

Labor Law § 200 and Common-Law Negligence (ESB) 

The Fourth Department reversed the trial court’s order granting summary judgment to defendants as to Labor Law § 200. It found that summary judgment was precluded, based on triable questions of fact regarding whether plaintiff’s injuries stemmed “from a dangerous condition on the premises” and whether defendant had “control over the work site and actual or constructive notice of the dangerous condition.” 

    Tanksley v LCO Bldg. LLC January 28, 2022 Appellate Division, Fourth Department  

Plaintiff allegedly was injured when he fell through a skylight opening in the roof on which he was working. He testified that, at the time of his injury, he was removing the plywood covering of the skylight holes as part of his work of preparing to install the final roofing. Upon removing the plywood, he fell through the skylight hole, and he was given no safety device to protect him from falling. Plaintiff sued LCO, the owner of the property, and defendant/third-party plaintiff Cityview, the construction manager (collectively, defendants), under Labor Law §§ 240(1), 241(6), 200, and common-law negligence. Cityview commenced a third-party action against plaintiff’s employer, Tundo.

 

The trial court granted plaintiff’s motion for partial summary judgment on the Labor Law § 240(1) claim against defendants, denied Cityview’s cross-motion seeking summary judgment dismissing plaintiff’s § 241(6) and common-law negligence claims, denied Cityview’s cross-motion seeking summary judgment on the second third-party complaint against Tundo, and granted plaintiff’s application seeking leave to amend his pleadings to include a Labor Law § 241(6) claim based on a violation of Industrial Code (12 NYCRR) § 23-1.7.

 

Labor Law § 240(1) (MAS) 

The Fourth Department reversed the trial court’s order and denied plaintiff’s motion, finding that Cityview’s submissions raised a triable issue of fact whether it lacked the authority to supervise or control the injury-producing work. However, the Court held that plaintiff was entitled to summary judgment against LCO, who failed to provide adequate fall protection, and which failure was a proximate cause of the accident.  Even assuming that the plywood cover constituted a safety device, the Court noted that “the availability of a particular safety device will not shield an owner or general contractor from absolute liability if the device alone is not sufficient to provide safety without the use of additional precautionary devices or measures.” Thus, although the plywood cover “may have provided proper protection when it was in place over the opening … once it was removed plaintiff was exposed to an elevation-related risk which required additional precautionary measures or devices.” The Court further held that LCO failed to raise an issue of fact as to whether plaintiff’s own negligence was the sole proximate cause of his injuries; in particular, whether he was provided with an adequate safety device and failed to use it.

 

PRACTICE POINT: The statutory duty to furnish workers with “scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection” is not satisfied merely because a safety device of one sort or another was made available to the injured employee at the work site. “Proper protection” requires that the device must be appropriately placed or erected so that it would have safeguarded the employee, and that the furnished device itself must be adequate to protect against the hazards involved in the performance of the specific task to which the employee was assigned. Stated differently, the availability of a particular safety device will not shield an owner or general contractor from absolute liability if the device alone is insufficient to provide a safe workplace, without the use of additional precautionary devices or measures.

 

Labor Law § 241(6) (TPW) 

The Fourth Department modified the underlying order as to the Labor Law § 241(6) cause of action.  First, it was held that the trial court properly denied Cityview’s cross motion which was made on the argument that Cityview was not a general contractor or agent.  It found a triable issue of fact as to whether Cityview had the authority to supervise or control the injury-producing work.  Thus, a question of fact as to whether it may be held liable as a general contractor or an agent of the owner warranted a denial of that part of the cross-motion. 

The Fourth Department also affirmed the order granting plaintiff’s application for leave to amend the pleadings to include a Labor Law § 241(6) claim premised on the alleged violation of 12 NYCRR 23-1.7(b)(1), which concerns hazardous openings.  A plaintiff may be entitled to leave to amend his or her pleadings or bill of particulars where he or she makes a showing of merit, raises no new factual allegations or legal theories, and causes the defendant no prejudice.  Whether liability could ultimately be found under 12 NYCRR 23-1.7(b)(1), however, was not addressed on appeal.

 

Labor Law § 200 and Common-Law Negligence (ESB) 

The Fourth Department reversed the trial court’s decision denying Cityview’s motion for summary judgment as to plaintiff’s common-law negligence claim, which was based on Cityview’s alleged supervision and control over plaintiff’s work. Cityview demonstrated that it did not exercise supervisory control over the manner or methods of the work that caused plaintiff’s injury, and plaintiff failed to raise an issue of fact in opposition.

 

As a procedural note, the Fourth Department declined to entertain LCO’s claim that the trial court erred in granting Cityview’s motion for summary judgment with respect to plaintiff’s Labor Law § 200 claim, because LCO was not aggrieved by that decision.

 

PRACTICE POINT:  It is important to note the distinction between the Court’s decisions on §§ 240(1) and 241(6) on the one hand, and common-law negligence on the other.  For the common-law negligence cause of action, the question was whether Cityview “exercised” supervisory control over the manner or methods of the work.  By contrast, to be an appropriate Labor Law defendant under §§ 240(1) and 241(6), one must “possess” such authority, irrespective of whether it is exercised.

 

Indemnity Issues in Labor Law (BFM)

The indemnity provision in the contract between Cityview and Tundo only required indemnification for damages that were caused by the negligent acts or omissions of Tundo, or its subcontractors.  Finding questions of fact as to whether Tundo was negligent in the scheduling of the contractors, the Fourth Department affirmed the trial court’s denial of Cityview’s cross motion for contractual indemnification against Tundo.

 

 

 

 New York Industrial Code Regulations (EDA)

12 NYCRR 23-1.22(c)(2) Every platform more than seven feet above the ground, grade, floor or equivalent surface shall be provided with a safety railing constructed and installed in compliance with this Part (rule) on all sides except those used for loading and unloading. Such sides when used for the loading or unloading of motor trucks or heavier vehicles shall be protected by timber curbs at least 10 inches by 10 inches full size and when used for the loading or unloading of wheelbarrows, power buggies, hand carts or hand trucks such sides shall be protected by timber curbs at least two inches by eight inches full size set on edge and secured to platform.

Regulation § 23–1.22(c)(2) establishes standards for the construction of safety railing on platforms over seven feet above the ground., and sets forth specific standards sufficiently specific to support to support a § 241(6) cause of action.

Exception: The following platforms are exempt from the safety railing or curb requirements: platforms of needle beam scaffolds; floats and rivet heater platforms used by structural ironworkers; ladder jack scaffold platforms; and trestle and extension trestle ladder scaffold platforms.

Temporary loading dock at building construction site from which laborer fell, due to failure of safety rail, was platform under Industrial Code, rather than scaffold.  Cassidy v. Highrise Hoisting & Scaffolding, Inc. N.Y.A.D. 1 Dept., 2011, 2011 WL 5424175. Industrial Code provisions did not apply to demolition worker’s Labor Law claim when he tripped and fell approximately eight feet from top of partially demolished wall and pile of accumulated demolition debris which was blocking doorway. Jara v. New York Racing Ass’n, Inc., N.Y.A.D. 2 Dept.,2011, 2011 WL 2573365. Statutory exceptions did not apply to unguarded stairwell that electrical worker fell through as it was not being used as means of access to work areas, and stairwell was not platform used to transport vehicular and/or pedestrian traffic. Sotarriba v. 346 West 17th Street LLC, 179 A.D.3d 599, 118 N.Y.S.3d 90 (1st Dep’t 2020).

 

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] Cara M. Pascarella [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

[email protected] Jesse L. Siegel [email protected]

 

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