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Labor Law Pointers - Volume XI, No. 4

 
 

Volume XI, No. 4
Wednesday, March 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. 
 
This month, Marc Schulz is doing a brief introduction of the newest member of the Labor Law Team.  We are thrilled to announce that Marc and his wife, Sarah, have welcomed their first child, Carter, to the world, who is already being groomed to take over when they wheel me out of here.  Congratulations to Marc and Sarah … well … mostly to Sarah.  Marc is at home with mom and baby, learning the lessons of parenthood; lessons which, I warned him, come at you much faster once they start to walk, and two days later when they start to run, and always at the most dangerous or breakable item within their universe.
 
Marc wanted to add a brief note of his own, complete with baby pictures.  How could I say no?
 
Before we get to the baby pictures, I couldn’t possibly let a month go without at least one crazy photo.
 
In this case, we have an employee of the fire suppression company, who was sent out to do the governmentally-required, annual inspection of this gas station’s fire suppression system.  As he had a date very shortly after work, he did not want to have to return the company truck, so he took his own van to the station, ensuring he could be on time for his date.  As he was on top of the structure, his boss happened to drive by, and stopped to yell at him for the set-up he was using to get on top of the structure; especially the ramps under the tires to gain that critical six inches.  The boss told him that he better get up there and finish quickly but, if he ever caught the plaintiff using this crazy method of reaching a height again, he would fire him.  The van, of course, rolled off the ramps five minutes after the boss left, and the plaintiff was injured falling from the moving ladder.  § 240(1) case?


 
We have an injured worker who is a person so employed and thus, a valid plaintiff.  The owner of the gas station is a valid defendant, and the injury was caused by the force of gravity, checking that box.  The hard part of the case for the plaintiff is that an annual inspection is NOT a covered activity.  It is maintenance, not repair.  Therefore, this plaintiff is not entitled to the extreme protections of § 240(1); summary judgment for the defense.
 
Don’t forget to reach out with any questions Labor Law or Risk Transfer related.  I am here, nose to the grindstone, while Marc basks in the joy of parenthood.
 

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


 
From Marc:
 
As anyone who has worked with David for any length of time knows, he is a devoted father.  Having been with the Labor Law Team for almost ten years, I’ve witnessed David constantly in motion with a neverending cycle of sports practices and games, school functions, and activities for his kids.  He always seems to enjoy them too.  My own father has always offered me guidance and wisdom throughout my life, and even to this day.  Little did I know that they were both, in their own ways, preparing me for the day my own child arrived.
 
Valentine's Day 2022 will stay with me forever, as it was the day my son, Carter, was born, and the day that I became a dad. I appreciate the sage advice from our fearless leader, and numerous cautionary tales from other dads around the office, and I am looking forward to this next chapter in my life.  While I enjoy being in survival mode, to get my family through the first six weeks with a newborn, I hope I will be this excited to return to work next month.  Without further ado, and because I am too exhausted to think of anything else to write, I offer photographs of a two-week old, to put a smile on your face.
 





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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.
 

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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. 

 

Rincon v New York City Hous. Auth.

February 01, 2022

Appellate Division, First Department

 
Plaintiff’s coworker was working on the roof near the parapet wall when a wrench accidentally slipped out of his hand and fell 10 to 15 feet, striking plaintiff, who was working below on a hanging scaffold. The trial court denied plaintiff’s motion for summary judgment on his Labor Law §§ 240(1) and 241(6) claims and granted defendant’s cross-motion to dismiss those claims.
 
Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court’s order and granted plaintiff’s motion because of defendant’s failure to provide an adequate safety device to protect plaintiff from falling objects that were required to be secured. The Court rejected Vestar’s expert opinion that the wrench “could not have been functionally employed if it was secured/tethered on the parapet wall” since the wrench could have been secured to the worker. The accident report, prepared by the project manager, made the recommendation “to use tethering devices while working from heights,” to prevent recurrence of such an accident and defendant’s project manager testified that he had no reason to disagree with that recommendation.
 
PRACTICE POINT: Owners and general contractors will not defeat an injured worker’s summary judgment motion by arguing that plaintiff was required to supply an expert affidavit. An injured worker need only show that defendant violated the statute (such as in this case, by failing to provide an adequate safety device to protect him or her from falling objects that were required by to be secured) and that said violation was a proximate cause of his or her injuries.
 
 

Galeno v Everest Scaffolding, Inc.
February 03, 2022
Appellate Division, First Department

 
Plaintiff allegedly fell through the roof of a sidewalk shed to the ground while engaged in façade repair of a building owned by Elk. Elk leased the building to 20 West, who hired ABS as managing agent of the building. ABS, as agent for 20 West, hired Everest to construct a heavy-duty sidewalk shed at the premises. ABS also hired SSG to perform façade repairs, and SSG subcontracted that work to plaintiff’s employer, Ramon.
 
The trial court denied Everest’s motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims against it but granted it on its contractual indemnification claims against the owner defendants. The trial court also denied the owner defendants’ motion for conditional summary judgment on their contractual indemnification claims against Everest, SSG and Ramon, and granted SSG’s motion and Ramon’s cross-motion to dismiss those claims and Everest’s common-law indemnification and contribution claims against them.
 
Labor Law § 200 and Common-Law Negligence (ESB)
To be found liable for a violation of Labor Law § 200 or common-law negligence, a party must have control of the means and methods of the injury producing work. For defendants to be liable, there must be a showing that defendants had the authority to supervise or control the performance of the work. In this case, the First Department found issues of fact on whether Everest or Ramon was a proximate cause of the accident, precluding dismissal of those claims.
 
Indemnity Issues in Labor Law (BFM)
The First Department determined that the trial court’s dismissal of 20 West and ABS's contractual indemnification claims against SSG, Ramon, and Everest was not warranted. However, the Court pointed out that to the extent plaintiff's common-law negligence and Labor Law § 200 claims remain pending against 20 West and ABS, they are not entitled to conditional summary judgment on their contractual indemnification claims against SSG, Ramon and Everest.

As to the claims against SSG, the Court noted that there was no evidence in the record of any negligence on the part of SSG or that SSG exercised supervision and control over plaintiff's work.  SSG also did not have actual or constructive notice of any defect in the shed, and did not do any work on or around the shed.  Likewise, Ramon's and the site safety inspector's reports did not record any defects in the shed.  Accordingly, the common-law indemnification and contribution claims against SSG were properly dismissed.  The common-law indemnification and contribution claims against Ramon, plaintiff's employer, are precluded by the exclusive remedy of the Workers' Compensation Law.

 

Gutierrez v Turner Towers Tenants Corp.
February 03, 2022
Appellate Division, First Department

 
Plaintiff was allegedly injured when he fell from a sidewalk bridge after stepping on a rotted wood plank that broke underneath him. The trial court granted plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim against Turner and JVS and denied Turner and JVS’s motion to dismiss the § 200 and common-law negligence claims and on its contractual and common-law indemnification claims against Pofi and Triborough. The trial court also granted Pofi’s and Triborough’s motions to dismiss the crossclaims and third-party claims.
 
 
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s order as the facts demonstrate a prima facie violation of the statute by owner Turner and general contractor JVS. Regardless of whether plaintiff’s accident occurred when he was walking across the sidewalk bridge, as he testified, or stepping onto the rotted plank from the ladder he climbed to get to the top of the bridge, as described in the accident report, the plank he stepped on broke, and he had not been provided with a safety device to protect him from falling.
 
Considering Turner’s and JVS’s statutory violation, plaintiff cannot be the sole proximate cause of his accident. Contrary to Turner and JVS’s argument, the record did not reflect that plaintiff was instructed to use a harness. Rather, the Court held that the testimony they rely on relates to an instruction plaintiff received from an entirely different project. JVS’s own witness conceded that the sidewalk bridge did not have a lifeline to attach a harness.
 
PRACTICE POINT: Feels like we say this every month, but owners and general contractors cannot defeat summary judgment by arguing that plaintiff’s conduct negligent caused the statutory violation because an injured worker’s comparative negligence is not a defense to a Labor Law § 240(1) claim.
 
Labor Law § 200 and Common-Law Negligence (ESB)
In this means and methods case, the First Department found triable issues of fact as to whether JVS had the authority to control the activity that brought about plaintiff’s alleged injury, which precluded summary dismissal of the Labor Law § 200 and common law negligence claims against Turner and JVS.
 
Indemnity Issues in Labor Law (BFM)
As Pofi did not expressly agree to indemnify JVS, the Court affirmed the trial court’s dismissal of JVS's contractual indemnity claim against Pofi.

The First Department held that the trial court's dismissal of Turner and JVS's cross claims for contribution and common-law indemnification against Triborough, while upholding plaintiff's negligence claims against Triborough, was premature as dismissal of the contribution claim deprives Turner and JVS of their right to recover a pro rata share of any damages awarded based on Triborough's liability.

 

Lapinsky v Extell Dev. Co.
February 08, 2022
Appellate Division, First Department

 
Plaintiff was allegedly injured at a construction site where he was working when he slipped and fell on snow and ice after he had passed through a perimeter gate, towards his employer’s shanty nearby upon arriving for work one morning. Tishman’s superintendent for the project testified the shanty area “was commonly used as a roadway for egress” and an “egress path” for workers going from the office trailers on one side of the shanties to the building under construction.
 
The trial court denied plaintiff’s motion for summary judgment on his Labor Law §§ 241(6) claim predicated on a violation of Industrial Code (12 NYCRR) § 23-1.7(d), as well as the 200 and common-law negligence claims and granted Extell’s cross-motion to dismiss those claims. The trial court also granted W5’s motion to dismiss the § 241(6) claim and denied its motion to dismiss the third-party complaint.
 
Labor Law § 241(6) (TPW)
The First Department modified the trial court’s order as it applied to the Labor Law § 241(6) claim predicated on a violation of Industrial Code 12 NYCRR § 23-1.7(d). Industrial Code § 23-1.7(d) provides that employers shall not allow any employee to use a "floor, passageway, walkway, scaffold, platform, or other elevated work surface which is in a slippery condition" and specifically enumerates ice and snow as foreign substances that must be removed, sanded, or covered. In this case, plaintiff was allegedly injured when he slipped and fell on snow and ice after he had passed through a perimeter gate.  Given the record was unclear as to whether there was a defined path where plaintiff fell and unclear whether that area was being used as a “roadway for egress” and an “egress path,” the Court concluded issues of fact existed as to whether plaintiff was in a defined walkway within the meaning of Industrial Code § 23-1.7(d).

Labor Law § 200 and Common-Law Negligence (ESB)
The First Department held that plaintiff was entitled to summary judgment on his common-law negligence and Labor Law § 200 claims against Tishman because he entered through a gate designated by Tishman for workers to enter, which a Tishman employee unlocked each morning, no path was cleared through the snow and ice to provide safe access between the gate and shanties, and Tishman had authority to direct W5 to clear snow and ice. The Court rejected the no notice arguments as it was unrefuted that it had snowed in the days prior to plaintiff’s accident, the snow covering the ground at the time of his accident was not fresh snow but had been present for at least a day, and no snow removal had been performed at all in the entire area where he fell by the gate through which Tishman provided access to the site. But because the parties did not address whether the other defendants had control over the worksite, neither they nor plaintiff were entitled to summary judgment on Labor Law § 200 and common-law negligence claims.
 
Indemnity Issues in Labor Law (BFM)
The First Department determined that the third-party complaint's contractual indemnification claims were barred by the anti-subrogation rule, which precludes an insurer from bringing a claim against its own insured for a risk it covers. This also precludes an indemnitee from bringing claims against an indemnitor when they are covered under the same policy. The Court held that W5 established its entitlement to dismissal of the contractual indemnification claims with evidence that it was enrolled in the Owners Controlled Insurance Program.
 
 

Locke v URS Architecture & Eng’g-N.Y., P.C.
February 10, 2022
Appellate Division, First Department

 
Plaintiff was allegedly injured when he slipped and fell on soapy water on the floor of the restroom designated by URS, the construction manager at the project, for use by construction workers. The designated bathroom was near the staging area where contractors placed shanties for the workers to use. Plaintiff testified that he regularly informed URS that the sink in the workers’ restroom was overflowing, causing water to pool on the floor, and requested the problem be fixed. URS told plaintiff that the restroom was the responsibility of Tri-Rail, the prime general contractor.
 
The trial court granted plaintiff’s motion for summary judgment against URS on his Labor Law § 241(6) claim based on a violation of Industrial Code (12 NYCRR) § 23-1.7(d) and on his § 200 and common-law negligence claims against URS. The trial court also denied the cross-motion by URS to dismiss the complaint and on its contractual indemnification claim against Tri-Rail and denied Crescent’s motion seeking dismissal of the § 200 and common-law negligence claims against it and on its common-law indemnification claim against URS.
 
Labor Law § 241(6) (TPW)
The First Department held that the trial court correctly denied URS’s motion for summary judgment dismissing the complaint as against it. The work that the property owner delegated to URS included designating the restrooms which were intended to be used by the workers. By designating these particular restrooms and forbidding entry to others, URS exercised control over the injury-producing activity of using the restroom while at the work site, and therefore, was liable as the owners’ agent.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department held that since plaintiff’s injury arose from a dangerous condition on the premises, URS is liable under § 200 because it had authority over the dangerous area of the worksite and notice of the unsafe condition. Similarly, URS is liable for common-law negligence because it had control over workers’ use of restroom facilities but failed to designate an alternate restroom for their use despite having notice of the dangerous condition.
 
Indemnity Issues in Labor Law (BFM)
The First Department found that although URS may not be indemnified for its own negligence, it was nonetheless entitled to conditional contractual indemnification from Tri-Rail, pending an apportionment of fault, as the trial court determined that Tri-Rail had also been negligent by failing to maintain the restroom.
 
Crescent established its entitlement to summary judgment dismissing the common-law negligence and Labor Law § 200 claims against it as a matter of law by presenting evidence that the workers' restroom where plaintiff's accident occurred was outside its contract and it did not perform any work in the workers' restroom. Because Crescent is not liable, its common-law indemnification claim against URS was academic.
 
 

Arnold v Empire 326 Grand LLC
February 15, 2022
Appellate Division, First Department

 
Plaintiff, an employee of nonparty Infinity, was performing drywall taping in apartments located in a newly constructed mixed-use building. Grand owned the building but had entered into a contract of sale with Empire at the time of plaintiff’s accident. Under the contract of sale, Empire was given access to the premises prior to closing to perform renovations and to stage and lease the apartments. Empire hired Infinity to act as the general contractor for the renovations.
 
On the day of plaintiff’s accident, Empire did not have any employees at the premises and did not supervise Infinity’s work. Grand had no full-time employees or agents at the premises, but an employee of a company related to Grand would occasionally visit the building to check that there were no problems and that everything was cleaned. This employee visited the building four or five times, twice in four months prior to the accident and once during construction. No one employed by Grand regularly supervised the ongoing construction at the premises.
 
Plaintiff’s accident occurred after he was instructed by his Infinity foreman to proceed to the seventh floor. He entered the apartment and as soon as he turned into the smaller bedroom, he felt himself slipping. He reached out to the wall to brace himself, but instead, he fell to the floor. His coworker had been mopping floors by dumping a large amount of water out and “slop mop[ping].” Although plaintiff did not see his coworker using the mop in the area of his accident, his coworker was the only other person on the seventh floor and the mop and bucket were at that location.
 
The trial court denied Grand’s motion for summary judgment seeking dismissal of the Labor Law §§ 241(6) and 200 claims and on its common-law indemnification claim against Empire and sua sponte dismissed as abandoned various Industrial Code regulations pled by plaintiff as predicates for liability on his § 241(6) claim but denied dismissal of that claim based on §§ 23-1.7(d) and/or 23-1.7(e)(1) and (2).
 
Labor Law § 241(6) (TPW)
The First Department affirmed the trial court’s order dismissing plaintiff’s alleged violations of the Industrial Code except for Industrial Code 12 NYCRR § 23-1.7(d) and § 23-1.7(e)(1) and (2). As a preliminary matter, the Court affirmed the trial court’s determination that Grand, which was the title owner of the premises at the actual time of the accident, was a proper Labor Law § 241(6) defendant. Plaintiff asked that the court search the record and grant summary judgment on his claims pursuant to § 241(6) as supported by the remaining §§ 23-1.7(d) and 23-1.7(e). The Court rejected the argument, noting that whether the Labor Law generally, and the Industrial Code specifically, applies to a particular accident is generally a fact-driven inquiry rather than a purely legal issue apparent on the face of the record. 
 
Labor Law § 200 and Common-Law Negligence (ESB)
While poured water on a floor can be a hazardous condition, it is undisputed on this record that the transient condition of accumulated water on the bedroom floor “would not have been present but for the manner and means of [Infinity’s employee’s] injury-producing work …" Grand’s employee merely had general supervisory authority over the premises; and neither Grand nor Empire directly supervised and/or controlled any work done by Infinity’s employees (including plaintiff). Therefore, the trial court should have granted summary judgment dismissing plaintiff’s § 200 and common-law negligence claims.
 
Indemnity Issues in Labor Law (BFM)
The First Department determined that as Grand failed to point to any negligence on Empire's part, the trial court correctly denied Grand summary judgment on its cross claim for common-law indemnity.

 

Mayorquin v Carriage House Owner’s Corp.
February 15, 2022
Appellate Division, First Department

 
Plaintiff testified that he was struck by an unsecured brick and although netting had been provided, it did not prevent the accident. His foreman’s statement in the accident report was that debris had fallen from a torn debris bag from a hanging scaffold. The trial court granted plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim.
 
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s order as the brick was an object that “required securing for the purposes of the undertaking” and the netting “proved inadequate” to protect plaintiff against falling debris. Defendants relied on the testimony of plaintiff’s employer that plaintiff was not authorized to work on top of the canopy to support their sole proximate cause defense. However, even if it were true that plaintiff was not authorized to work on the canopy, despite his employer’s lack of knowledge regarding plaintiff’s work at the time of the accident, the Court held that plaintiff’s decision to get on top of it would have amounted to only comparative negligence, which is not a defense to a Labor Law § 240(1) claim.
 
PRACTICE POINT: Under Labor Law § 240(1), it is conceptually impossible for a statutory violation (which serves as a proximate cause for a plaintiff’s injury) to occupy the same ground as a plaintiff’s sole proximate cause for the injury. Therefore, if a violation of § 240(1) is a proximate cause of an injury, then an injured worker cannot be solely to blame for it. Here, plaintiff’s decision to get on top of the canopy to perform his work at best was comparative negligence, which is the end of any sole proximate cause defense.

 

Quiroz v New York Presbyt./Columbia Univ. Med. Ctr.
February 15, 2022
Appellate Division, First Department

 
Plaintiff, a steamfitter employed by Penava, was injured in a fall from a Penava-issued A-frame ladder that allegedly titled after a leg of the ladder broke through a temporary Masonite covering on the surface of the building’s roof. The building was owned by NY Presbyterian (NYP), who retained Structure Ton as the general contractor for the project. Structure Tone hired PJ Mechanical to install the building’s HVAC system and PJ Mechanical subcontracted the installation of its HVAC equipment to Penava. PJ Mechanical’s superintendent testified that PJ Mechanical would oversee and direct Panava’s work, including interacting with Penava’s foreman at the project sight, but that PJ Mechanical did not control the means and methods of plaintiff’s work. Plaintiff claimed that he only received his work instructions from Panava’s foreman.
 
The trial court denied NYP’s and Structure Tone’s motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims as against Structure Tone, denied their motion for contractual indemnity against PJ Mechanical and Penava, and granted PJ Mechanical’s motion seeking dismissal of NY Presbyt./Structure Tone’s claims against it for common-law indemnity, contribution, and breach of contract for failing to procure insurance.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed the trial court’s denial of Structure Tone’s motion to dismiss these claims because Structure Tone failed to establish that it did not create the hazardous condition, i.e., the masonite roof cover.
 
Indemnity Issues in Labor Law (BFM)
The First Department found that based on the broad indemnification provision PJ Mechanical agreed to, which provided that NY Presbyterian/Structure Tone would be entitled to indemnification from PJ Mechanical if an accident arose out of its subcontract work (or sub-subcontracted work) NY Presbyterian/Structure Tone would be entitled to indemnification whether or not negligence by PJ Mechanical contributed to plaintiff's accident. The Court found that the evidence demonstrated that plaintiff's fall arose out of or in connection with Penava's HVAC installation work.  As the plaintiff withdrew his Labor Law § 200 and negligence claims against NY Presbyterian, NY Presbyterian was entitled to summary judgment on its contractual indemnification claim against PJ Mechanical.

The Court held that as factual issues existed as to whether Structure Tone was the sole proximate cause of plaintiff's injuries, summary judgment on its contractual indemnification claim would be premature.  For the same reason, notwithstanding the broad indemnification language, conditional summary judgment on Structure Tone's contractual indemnification claim would be inappropriate.

To the extent NY Presbyterian also sought summary judgment on its contractual indemnification claim against Penava, the Court noted that as factual issue existed as to whether Structure Tone was the sole proximate cause of plaintiff's injury, NY Presbyterian was only entitled to conditional summary judgment on its contractual indemnification claim against Penava. Similarly, Structure Tone was not entitled to summary judgment or conditional summary judgment on its claim for contractual indemnification against Penava.

The Court held that the trial court properly dismissed NY Presbyterian/Structure Tone's claims for common-law indemnification and contribution as against PJ Mechanical.  The evidence submitted was insufficient to raise a triable issue as to whether PJ Mechanical was negligent or exercised actual supervision or control over the injury-producing work.  NY Presbyterian/Structure Tone's contribution claims against PJ Mechanical also lacked evidentiary support and were properly dismissed.
 
 

Quiroz v Memorial Hosp. for Cancer & Allied Diseases
February 22, 2022
Appellate Division, First Department

 
Plaintiff was allegedly injured while performing construction work. Turner was hired by Memorial as the general contractor for construction of a new building on the premises. Turner hired plaintiff’s employer, nonparty Pinnacle, as a subcontractor for construction work on the building. Plaintiff’s foreman told plaintiff to work on a pipe scaffold and to flatten the wall as high as he could reach from the scaffold. After plaintiff climbed the scaffold and began using a chipping gun on the wall, he felt the scaffold move “backwards and forwards.” He tried stabilizing himself by moving his foot back, but the movement of the scaffold and the small, uneven plywood boards on which he was standing caused him to lose his balance and fall backwards onto the concrete below.
 
The trial court denied plaintiff’s summary judgment motion on his Labor Law § 240(1) claim and granted Memorial’s and Turner’s cross-motions for summary judgment dismissing the § 241(6) claim predicated on a violation of Industrial Code § 23-5.1(f).
 
Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court’s order and granted plaintiff summary judgment under Labor Law § 240(1). Plaintiff’s unrebutted testimony established that the kickback of the chipping gun he was using caused the unlevel, unsecured scaffold and platform on which he was standing to move backwards and forwards, causing him to lose his balance, and proximately causing his injuries.
 
Defendants’ attempt to refute plaintiff’s prima facie case by arguing that plaintiff was a recalcitrant worker and, as such, was the sole proximate cause of the accident was rejected by the Court. Even if there was evidence that adequate safety devices were readily available at the work site, and that plaintiff knew he was expected to use them, it would not render plaintiff the sole cause of the accident, because the unsecured scaffold with unlevel, uneven, and unsecured floor planks initially caused him to lose his balance and fall.
 
PRACTICE POINT:  To establish a sole proximate cause defense such that a defendant has no liability under Labor Law § 240(1), it must prove plaintiff: (1) had adequate safety devices available; (2) knew both that the safety devices were available and that he or she was expected to use them, (3) chose for no good reason not to do so, and (4) would not have been injured had he or she not made that choice. Here, even if plaintiff was provided with adequate safety devices and knew he was expected to use them, it would not have prevented the unsecured scaffold planks from being unlevel and uneven, which caused him to lose his balance and fall.
 
Labor Law § 241(6) (TPW)
The First Department held that considering the grant of summary judgment to plaintiff on his Labor Law § 240 (1) claim, the Labor Law § 241 (6) claim was academic.
 
 

Ramirez v Hansum
February 22, 2022
Appellate Division, First Department

 
Plaintiff was allegedly injured when he fell from a ladder while performing work on the roof of a single-family house owned by defendants. The trial court granted defendants’ motion for summary judgment dismissing the alleged violations of Labor Law §§ 240(1), 241(6), 200, and common-law negligence.
 
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s order dismissing the §§ 240(1) and 241(6) claims based on the homeowners’ exemption. Defendants demonstrated that their property consisted of a one-family dwelling, not used for a commercial purpose, and that they did not direct or control plaintiff’s work. Plaintiff failed to raise an issue of fact in opposition, as the Court held that his arguments are based on unfounded speculation that the owners intended to use the house solely for commercial or investment purposes. To the extent plaintiff argues that discovery is needed to determine whether the property was used for a commercial or investment purpose, the Court held that such an argument is also based on speculation.
 
PRACTICE POINT: Under the homeowners’ exemption of Labor Law §§ 240(1) and 241(6), “owners of one and two-family dwellings who contract for but do not direct or control the work” are exempt from liability. Here, defendants met their burden of demonstrating that they were entitled to the protections of the homeowners’ exemption.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department agreed with the trial court that the Labor Law § 200 and common-law negligence claims were properly dismissed, because it was uncontested that defendants did not exercise supervisory control over the activity that brought about plaintiff’s injury.
 
 

Harris v City of New York
February 24, 2022
Appellate Division, First Department

 
Plaintiff was allegedly injured when he fell over the top rail of a barricade railing system. The trial court denied defendants’ motion for summary judgment seeking dismissal of the Labor Law § 241(6) claim based on a violation of Industrial Code (12 NYCRR) § 23-1.5(c)(3) and denied SQP’s motion seeking dismissal of the City’s third-party contractual indemnification claim.
 
Labor Law § 241(6) (TPW)
The First Department affirmed the denial of defendant’s summary judgment motion seeking dismissal of the Labor Law § 241(6) claim. Defendant SQP argued that plaintiff’s § 241(6) claim against the City Defendants must be dismissed because the City did not have notice of any defect or dangerous condition of the barricade railing system as required for liability pursuant to 12 NYCRR § 23-1.5(c)(3). However, the Court noted that SQP did not advance that argument before the trial court, but rather, argued that § 23-1.5 was too general a provision to support liability. The issue of notice, as it relates to § 23-1.5, is not a purely legal issue appearing on the face of the record and thus could not be decided on this appeal.
 
Indemnity Issues in Labor Law (BFM)
The First Department held that the City's claim against SQP for contractual indemnification should be dismissed.  SQP did not construct or maintain the barricade railing system, nor did its employees remove the part of the top rail over which plaintiff fell.  SQP also did not supervise or control plaintiff's work.  As a result, plaintiff's accident did not arise out of SQP's work so as to trigger the contract's indemnification provision on that ground. Nor did SQP, which submitted evidence that it complied with its contractual obligation to daily inspect the site for hazards, act negligently or otherwise unreasonably so as to trigger the indemnification provision on that ground.

 

Alvarez v 2455 8 Ave., LLC
February 9, 2022
Appellate Division, Second Department

 
Plaintiff was allegedly injured when he fell from an A-frame ladder while working on a renovation project at a building in Manhattan. 2455 8 Ave. was the alleged owner of the property, who retained Zenco as the general contractor for the renovation work. The trial court denied Zenco’s summary judgment motion to dismiss the complaint and denied plaintiff’s cross-motion for summary judgment on the issue of liability under Labor Law § 240(1).
 
Labor Law § 240(1) (MAS)
The Second Department unanimously affirmed the trial court’s order denying summary judgment to both parties. Plaintiff demonstrated his entitlement to judgment as a matter of law on the issue of liability on the § 240(1) claim with testimony that he fell from a defective A-frame ladder and that his fall was caused by the defective condition of the ladder. However, a triable issue of fact was raised through the affidavit of plaintiff’s supervisor, which called into question plaintiff’s credibility regarding how the accident occurred.
 
The Court also affirmed the trial court’s order denying Zenco’s motion as the deposition transcripts demonstrated the existence of a triable issue of fact regarding its status as general contractor at the time of the subject accident. Since Zenco failed to establish its entitlement to judgment as a matter of law, the Court declined to consider the sufficiency of plaintiff’s opposition papers.
 
PRACTICE POINT: The mere fact that an injured worker fell from a ladder does not, by itself, establish a violation of the statute; however, a plaintiff may establish entitlement to judgement as a matter of law by showing both that he or she fell from a defective or unsecured ladder, and that the defect or failure to secure the ladder was a proximate cause of his or her injuries. Where a plaintiff is the sole witness to the accident and his or her credibility has been placed in issue, summary judgment in favor of plaintiff under § 240(1) is inappropriate.

 

Sanchez v BBL Constr. Servs., LLC
February 9, 2022
Appellate Division, Second Department

 
Plaintiff was allegedly injured while pouring a concrete floor when he tripped and fell over a protruding permanent drainpipe that was covered with a bucket to prevent concrete from entering it. At that time, the surface on which plaintiff was standing was covered with gravel, plastic, and wire mesh, from which earlier-installed plumbing and drainage pipes protruded. BBL was the general contractor on the project, who retained Lombardo Plumbing as the plumbing subcontractor. BBL also hired D & J as the subcontractor to pour the concrete floor.
 
The trial court denied defendants’ motion for summary judgment seeking dismissal of the Labor Law §§ 241(6), 200, and common-law negligence claims and on their various crossclaims.
 
Labor Law § 241(6) (TPW)
The Second Department reversed the trial court’s order as it related to the Labor Law § 241(6) claim, noting that plaintiff abandoned all the alleged Industrial Code violations except for 12 NYCRR § 23-1.7(e)(2). In support of their motion, defendants demonstrated that § 23-1.7(e)(2) was inapplicable because the protruding drainage pipe over which plaintiff allegedly fell was a permanent and an integral part of what was being constructed. In opposition, the Court held plaintiff failed to raise a triable issue of fact. Accordingly, the trial court should have granted those branches of defendants’ motion dismissing the Labor Law § 241(6) claim.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department held that defendants met their burden of demonstrating both that the allegedly dangerous condition was open and obvious and not inherently dangerous, and that they lacked the authority to supervise or control plaintiff’s work by showing that at the time of the accident and in the days prior thereto, the means and methods of plaintiff’s work were directed by and were the sole responsibility of his D & J supervisor, and that the allegedly dangerous condition was open and obvious and not inherently dangerous.
 
Indemnity Issues in Labor Law (BFM)
The Second Department determined that the defendants met their prima facie burden of demonstrating both that the allegedly dangerous condition was open and obvious and not inherently dangerous, and that they lacked the authority to supervise or control the plaintiff's work.   As such, the Court held that those branches of D & J's motion which were for summary judgment dismissing the third-party complaint and all third-party cross claims asserted against it should be granted.

 

Aponte v Airport Indus. Park, LLC
February 16, 2022
Appellate Division, Second Department

 
Plaintiff allegedly fell from a ladder at premises owned by AIP and subleased to Youngs Auto. The trial court denied plaintiff’s cross-motion for summary judgment on the issue of liability under Labor Law § 240(1) and granted AIP summary judgment on its common-law indemnity claim against Young’s Auto.
 
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s order denying summary judgment to plaintiff because plaintiff failed to eliminate triable issues of fact as to whether, at the time of the subject accident, he was engaged in the enumerated activity of “repairing” which is protected under § 240(1), or whether he was engaged in routine maintenance. Since plaintiff failed to meet his initial burden as the movant, the Court declined to consider the sufficiency of the opposition papers. 
 
PRACTICE POINT: Generally, courts have held that work constitutes routine maintenance where the work involves “replacing components that require replacement in the course of normal wear and tear.” If plaintiff files the motion for summary judgment, then plaintiff bears the burden (see below) of demonstrating that his injury-producing work constituted “repair” and not routine maintenance. In this case, plaintiff could not meet his burden and thus his motion was denied, regardless of the opposition papers.
 
Indemnity Issues in Labor Law (BFM)
The Second Department reversed the trial court, holding that that branch of AIP's motion which was for summary judgment on the third-party cause of action for common-law indemnification asserted against Young’s should have been denied.  In support of that branch of its motion, AIP failed to establish, prima facie, that Young's either was negligent or actually supervised and/or directed the work that gave rise to the plaintiff's alleged injuries.

 

Hamm v Review Assoc., LLC
February 16, 2022
Appellate Division, Second Department

 
Plaintiff allegedly fell from a ladder at premises owned by Review and leased to Fresh Direct. At the time of the accident, Fresh Direct had a service contract with plaintiff’s employer to service/maintain the security system it had previously installed on the Fresh Direct premises. The accident occurred when plaintiff was in the process of placing a security camera into its plastic protective housing after testing it, and the ladder, which he alleged had been given to him by a Fresh Direct employee just prior to the accident, slipped, and he fell. The camera had not been working for some time prior to the accident and was located 20 feet from the ground and mounted to a concrete cinder block wall. Plaintiff alleged that one of the locks on the side of the ladder had broken off and that the caps that covered the metal feet were missing on one side. The trial court granted defendants’ separate motions for summary judgment dismissing the complaint.
 
Labor Law § 240(1) (MAS)
The Second Department reversed the trial court’s order and denied defendants’ motion to dismiss this claim against each of them on the ground that, at the time he fell, plaintiff was engaged in routine maintenance. The evidence raised triable issues of fact as to whether plaintiff was engaged in repairs or routine maintenance and since neither defendant met their burden, the Court declined to address whether plaintiff’s opposition papers raised a triable issue of fact in this regard.
 
PRACTICE POINT: Burden of proof is something that is very important to the Labor Law team, as revealed by the prior case. Understanding which party bears what burden of proof is critical in every motion and depends on whether you are the moving party seeking entitlement to judgment as a matter of law or if you are the party opposing the motion by trying to create issues of material fact. This time, defendants were unable to meet their burden of establishing plaintiff was engaged in routine maintenance at the time he fell.
 
Labor Law § 241(6) (TPW)
The Second Department affirmed the trial court’s order granting summary judgment and dismissing the Labor Law § 241(6) claim. The Court held that to establish liability under § 241(6), a plaintiff must demonstrate that any injuries were proximately caused by a violation of an applicable Industrial Code provision. However, plaintiff failed to plead any Industrial Code violations in either the Complaint or Bill of Particulars. Therefore, defendants established their entitlement to judgment as a matter of law dismissing this claim insofar as asserted against each of them. In opposition, the Court held that plaintiff failed to raise a triable issue of fact.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed the trial court’s finding that, as related to Review, it established that it did not have authority to supervise or control the means and method of plaintiff’s work on the premises by presenting evidence that it had no presence at the property and had no oversight or control over any work contracted by Fresh Direct with plaintiff's employer at the subject premises. To the extent plaintiff’s claims were based on a dangerous condition on the premises, Review also established that it did not provide the ladder to the plaintiff, and it did not provide any ladders or building materials to Fresh Direct prior to the date of the accident. The Court also held that Review did not have notice, actual or constructive, of any defective condition with respect to the ladder at issue. In opposition to Review’s showing, the Court held that plaintiff failed to raise a triable issue of fact.
 
As to Fresh Direct, while plaintiff testified that Fresh Direct did not control or direct how he performed his work when he was present at the subject premises, the Court held that Fresh Direct failed to establish it did not have actual or constructive notice of the allegedly defective condition of the ladder that, according to plaintiff, it provided at the time of the accident. Accordingly, the trial court should have denied those branches of Fresh Direct’s motion for summary judgment dismissing the § 200 and common-law negligence claims against it.
 
 

Soto v Justin Hochberg 2014 Irrevocable Trust
February 23, 2022
Appellate Division, Second Department

 
Plaintiff allegedly was injured when the elevator that he and his colleague were attempting to repair rapidly and unexpectedly descended to the ground floor. The accident occurred in a four-story, single-family townhouse occupied by nonparty Hochberg and owned jointly by defendant, whose trustees – the individual defendants – are Hochberg’s three children. The trial court granted defendants’ motion for summary judgment dismissing the Labor Law § 240(1) claim and denied plaintiff’s cross-motion for summary judgment on the issue of liability on that claim. The trial court also denied defendants’ motion for summary judgment seeking dismissal of the § 200 and common-law negligence claims.
 
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s order dismissing the § 240(1) claim based on the homeowner’s exemption because defendants, as owners of the single-family townhouse where the accident occurred, established that they did not direct or control the home improvement work being done by plaintiff and his employer. For the same reasons, the Court also affirmed denial of plaintiff’s cross-motion for summary judgment on this claim.
 
PRACTICE POINT: The homeowners’ exemption to liability under Labor Law § 240(1) is available to “owners of one and two-family dwellings who contract for but do not direct or control the work” and demonstrate that the property was intended to be used solely for residential purposes. Where, as here, defendants can establish their burden of demonstrating the exemption applies to them, summary judgment will be granted dismissing the Labor Law claims.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department reversed the trial court and granted defendant’s motion, agreeing with their argument that plaintiff cannot succeed in his Labor Law § 200 and common-law negligence claims as “[n]o responsibility rests upon an owner of real property to one hurt through a dangerous condition which he [or she] has undertaken to fix.” The evidence in the record conclusively established that the injury-producing accident was caused by an unidentified defect in the very elevator that plaintiff's employer had been hired to repair. Accordingly, defendants were entitled to summary judgment dismissing the § 200 and common-law negligence claims.
 
 

Toalongo v Almarwa Ctr., Inc.
February 23, 2022
Appellate Division, Second Department

 
Plaintiff was allegedly injured in the course of his employment with Global, during the expansion of a mosque and the construction of a new school above it. Almarwa and Al-Iman (defendants) owned the mosque and the school being constructed and retained US Sheltech to be the general contractor. US Sheltech contracted with Global to perform the structural steel work. Plaintiff allegedly was injured when he slipped on ice, water, and debris in a stairwell while trying to support the weight of a steel beam that was being lowered down to him by two coworkers on a scaffold above him.
 
The trial court denied defendants’ motion for summary judgment seeking dismissal of the Labor Law §§ 240(1), 241(6), 200, and common-law negligence claims and denied plaintiff’s cross-motion for summary judgment on the issue of liability on his § 240(1) claim.
 
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s order denying summary judgment to both parties. On the first date of plaintiff’s deposition testimony, plaintiff failed to mention any risk arising from a significant elevation differential, and on the second date of his testimony, testified that his injuries were the result of a steel beam weighing 500 to 600 pounds being passed down to him by two coworkers on a scaffold above him, absent any safety device, which caused him to slip on water, ice, and other debris. Considering the discrepancies in plaintiff’s deposition testimony regarding whether there was a causal connection between an object’s inadequately regularly descent and his injury, neither defendants nor plaintiff met their burden on their respective motions and cross-motion.
 
PRACTICE POINT: Burden of proof strikes again. Where there are questions surrounding how an injured worker’s accident occurred or there are conflicting versions as to how a worker was injured, summary judgment is not appropriate to either party.
 
Labor Law § 241(6) (TPW)
The Second Department affirmed the denial of defendants’ summary judgment motion seeking dismissal of the Labor Law § 241(6) claim. Plaintiff alleged that his injuries were proximately caused by defendants’ violation of 12 NYCRR § 23-1.7(d), which requires that “[e]mployers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing.” In support of their motions, defendants failed to demonstrate that this regulation was inapplicable, not violated, or that the alleged violation was not a proximate cause of plaintiff’s injuries. Accordingly, those branches of defendants’ motions for summary judgment dismissing the § 241(6) claim were properly denied.
 
Labor Law § 200 and Common-Law Negligence (ESB)
In this premises case, defendants failed to establish that they did not have actual or constructive notice of an allegedly dangerous condition that contributed to plaintiff’s accident, namely, water, ice, and debris in the stairwell where plaintiff’s accident occurred. Accordingly, the Second Department affirmed the trial court’s denial of defendants’ motions, regardless of the sufficiency of the plaintiff’s opposing papers.
 
 

DeGraff v Colontonio
February 17, 2022
Appellate Division, Third Department

 
Plaintiff was hired by defendant to construct a one-story, single-family house for defendant and his spouse. Defendant rented a lull for the job. Plaintiff was wrapping the house in Tyvek and, to reach higher parts of the structure, he utilized the lull by stacking sheets of plywood on its fork to create a platform for himself and his materials. The unsecured plywood eventually upended under his weight, causing plaintiff to fall 12 to 16 feet to the ground.
 
After a bifurcated jury trial on the issue of liability, the trial court denied plaintiff’s motion for a directed verdict on his Labor Law § 240(1) claim. The jury determined that, although defendant directed and/or controlled plaintiff’s work, plaintiff was the sole proximate cause of his injuries.
 
Labor Law § 240(1) (MAS)
The Third Department reversed the trial court and granted plaintiff’s motion for a directed verdict. Even when viewing the evidence in the light most favorable to defendant, it is beyond dispute that the lull was not an adequate safety device for the elevated work being performed by plaintiff at the time he fell. Plaintiff’s accident was plainly the direct result of the makeshift lull setup failing, and unless plaintiff’s choice not to use other available safety devices when installing the Tyvek was the sole proximate cause of his own injuries, plaintiff established a violation of § 240(1).
 
PRACTICE POINT: “Proper protection” under Labor Law § 240(1) requires that the device must be appropriately placed or erected so that it would have safeguarded the worker, and that the furnished device itself is adequate to protect against the hazards entailed in the performance of the particular task to which the worker was assigned, that is, without the use of additional precautionary devices or measures.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Third Department held that in light of its determination, plaintiff's remaining contentions, along with his Labor Law § 200 claim, were academic.
 
 

Clifton v Collins
February 04, 2022
Appellate Division, Fourth Department

 
Plaintiff was allegedly injured when he fell down a stairwell while installing cable outlets during a home construction. Collins was the owner of the home and Kilian, individually and doing business as Kilian Construction, was a contractor on the project. The trial court denied Kilian and Kilian Construction’s motion for summary judgment seeking dismissal of the Labor Law §§ 240(1), 241(6), 200, and common-law negligence claims.
 
Labor Law § 240(1) (MAS)
The Fourth Department unanimously reversed the trial court’s order and dismissed the Labor Law §§ 240(1) and 241(6) claims against Kilian because he was a prime contractor and not a general contractor. Collins, not Kilian, hired plaintiff’s employer to perform the work on the project, and Kilian established that he exercised no control or supervision over plaintiff’s work and had no authority to enforce safety standards against plaintiff. Thus, Kilian established as a matter of law that he was not a general contractor subject to liability under Labor Law §§ 240(1) and 241(6).
 
PRACTICE POINT: There is a distinction between a general contractor and a prime contractor for general construction. A general contractor will be held liable under Labor Law §§ 240(1) and 241(6) if it was responsible for coordinating and supervising the entire construction project and was invested with a concomitant power to enforce safety standards and to hire responsible contractors. The entity that hires an injured worker’s employer on a project is an appropriate Labor Law defendant with the authority to enforce safety standards against the injured worker.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Fourth Department affirmed the trial court’s finding that Kilian established to the extent that the claim is premised on the theory that he controlled the method and manner of plaintiff’s work, that he did not so control the work, and plaintiff failed to raise a triable issue of fact. However, the Court found that Kilian failed to establish that he did not have control over the work site or that he lacked actual or constructive notice of the dangerous condition, i.e., the unguarded, open stairwell. In his deposition testimony, Kilian acknowledged that it was his obligation to put up a safety railing around the open stairwell to protect anyone that may be on the site, and he further testified that there were no safety railings around the stairwell.
 

 

 New York Industrial Code Regulations (EDA)

 

12 NYCRR 23-1.23(a) Construction - Earth ramps and runways shall be constructed of suitable soil, gravel, stone or similar embankment material. Such material shall be placed in layers not exceeding three feet in depth and each such layer shall be properly compacted except where an earth ramp or runway consists of undisturbed material. Earth ramp and runway surfaces shall be maintained free from potholes, soft spots or excessive unevenness.

Regulation § 23–1.23(a) establishes standards for the construction of earthen ramps and runways, and sets forth specific standards sufficiently specific to support to support a § 241(6) cause of action. (D’Elia v City of New York, 81 AD3d 682, 916 NYS2d 196 [2d Dept. 2011]).

Regulation § 23–1.23(a) requiring that ramps and runways must be constructed of suitable embankment material and placed in layers at most three feet in depth, held inapplicable where plaintiff was riding on the exterior step of a moving backhoe when he fell and the backhoe ran over his left foot (Scott v Westmore Fuel Co., Inc., 96 AD3d 520, 947 NYS2d 15 [1st Dept. 2012]). 

Regulation § 23–1.23 held inapplicable where plaintiff did not slide down a ramp or runway (Erickson v Cross Ready Mix, Inc., 75 AD3d 524, 906 NYS2d 54 [2d Dept. 2010]);

It was inapplicable where plaintiff slide on an embankment (Doty v Eastman Kodak Co., 229 AD2d 961, 646 NYS2d 474 [4th Dept. 1996]). 

A question of fact existed as to whether § 23–1.23 applied where plaintiff injured when he fell while walking down the side of anchor trench (Smith v Monroe, 229 AD2d 984, 645 NYS2d 258 [4th Dept. 1996]). 

 

 

Labor Law Pointers
 
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Eric S. Bernhardt

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Labor Law Team

 

 

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