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Toussaint v Porth Auth. of N.Y. and N.J.
March 22, 2022
Court of Appeals
Plaintiff was struck by a power buggy while operating a rebar-bending machine at the World Trade Center site owned by the Porth Authority. On the day of the accident, a trained and properly designated operator drove the buggy into the area near plaintiff's workstation. That operator exited the vehicle and another worker, who was not designated or trained to do so, got on and drove the buggy a short way before losing control, crashing into plaintiff.
The trial court denied the Port Authority's summary judgment motion dismissing the Labor Law § 241(6) claim, concluding that Industrial Code § 23-9.9(a), which provides that "[n]o person other than a trained and competent operator designated by the employer shall operate s power buggy," was sufficiently specific to support that claim.
The First Department, with dissents by Justices Tom and Kahn, modified the trial court's order by searching the record and granting plaintiff summary judgment under § 241(6) as it is undisputed that the operating engineer was not "designated by the employer" to operate the power buggy and his operation of the power buggy was a proximate cause of plaintiff's injuries. The dissent would have held that Industrial Code § 23-9.9(a) was insufficiently specific, noting that the majority relied on a term – "designated" – that the Court already found to lack specificity in prior cases.
 Labor Law § 241(6) (TPW)
The issue is whether Industrial Code § 23-9.9(a) contains specific commands and standards that mandate compliance with concrete specifications as a valid predicate for liability under § 241(6), or only general safety standards that invoke general descriptive terms, which do no more than incorporate general common-law standards of care and cannot support a § 241(6) claim.
The majority agreed with the dissent that the "trained and competent operator" requirement of § 23-9.9(a) is general, as it lacks a specific requirement or standard of conduct. The Court disagreed with the First Department's conclusion that the additional direction that "trained and competent" individuals must also be "designated" somehow transforms the provision from a general standard of conduct to a "specific, positive command." As the Industrial Code regulation does not mandate compliance with concrete specifications, plaintiff's Labor Law § 241(6) claim must be dismissed.
The dissent would hold that § 23-9.9(a) imposes an affirmative duty on employers to use only trained and competent persons to operate power buggies and to designate specific persons to do so. Therefore, the provision is sufficiently distinct from the common-law, thereby providing plaintiff with a claim under § 241(6) to hold defendants vicariously liable for his injuries. The result would mean that plaintiff could offer the regulation as evidence of a standard of conduct and that defendants could interpose certain defenses.
Lopez v City of New York
March 01, 2022
Appellate Division, First Department
Plaintiff was allegedly injured while helping one of his colleagues clear a blockage from a hose on an air compressor that was used to operate to a drill rig. A whip check – a safety device used to reduce the movement of an air hose in the event it became disconnected – was placed at the end of every hose connected to the air compressor, the end of another hose, or the drill rig. During the operation to dislodge the blockage, a whip check failed to perform its safety function and the hose recoiled, hitting plaintiff in the face. The trial court denied Mega Contracting and Lebanon West Farms' motion for summary judgment of seeking dismissal of the Labor Law § 241(6) claim predicated on an alleged violation of Industrial Code (12 NYCRR) § 23-1.5(c)(3).
Labor Law § 241(6) (TPW)
The First Department unanimously affirmed the trial court's denial of defendants' motion for summary judgment. Industrial Code 12 NYCRR § 23-1.5(c)(3) provides that "[a]ll safety devices, safeguards and equipment in use shall be kept sound and operable, and shall be immediately repaired or restored or immediately removed from the job site if damaged." Defendants we unable to meet their prima facie burden of showing that the whip check was not defective. Further, defendants were unable to meet their burden of showing they did not have notice of the alleged defective whip check as no evidence was submitted that safety inspections of the whip check had been completed before the accident.
Navedo v VNO 225 W. 58th Streel LLC
March 01, 2022
Appellate Division, First Department
Plaintiff sustained an electric shock while working on the 40th floor of a building under construction. As he rose from a kneeling position in which he had been taking measurements for a curtain wall, he took hold of a safety cable that ran along the perimeter of the building. The safety cable was not designed to carry an electric charge. Electric provided temporary electrical power on all floors above the 11th for use by other contractors. A purchase order showed that plaintiff's employer, nonparty Enclos, had been hired to install the curtain wall, and contracted with nonparty, Greg Beeche Logistics, to supply the perimeter scaffolds and that Beeche was responsible for providing and maintaining the scaffolds' wires and cables.
The trial court granted plaintiffs' motion for summary judgment on his Labor Law § 241(6) claim predicated on an alleged violation of Industrial Code § 23-1.13(b)(3) and (4), denied VNO and Lend Lease's motion for summary judgment dismissing the § 241(6) claim and on their claim for contractual indemnification against Electric, and denied Electric's summary judgment motion for dismissal of the claims for common-law indemnity, contribution, and contractual indemnification.
Labor Law § 241(6) (TPW)
The First Department affirmed that portion of the underlying decision to the extent it granted plaintiff's motion for summary judgment on his Labor Law § 241(6) claim. Plaintiffs established their entitlement to summary judgment as to defendants' liability predicated on Industrial Code 12 NYCRR § 23-1.13(b)(3) and (4). Defendants' argument that the regulations were inapplicable because they pertain to "dedicated power circuits" and the perimeter safety cable was not designed to carry voltage was unpersuasive as plaintiff's electric shock was, in fact, caused by a wire designed to carry a charge and therefore within the scope of the sections.
 Indemnity Issues in Labor Law (BFM)
The First Department held that Electric established that it was not liable to defendants for contractual indemnification by showing that plaintiff's accident did not arise out of, result from, or occur in connection with its performance of its work but arose out of Enclos's and Beeche's work. The Court held that defendants' contention that the accident necessarily arose out of the work of the only contractor that provided electrical power to all floors above the 11th failed to raise an issue of fact.
Healy v BOP One N. End LLC
March 03, 2022
Appellate Division, First Department
Plaintiff allegedly fell from the guardrails of a manlift after sustaining an electric shock. He was required to stand on the manlift's guardrails because HVAC ductwork prevented him from raising the manlift to the area in which he needed to work. The trial court denied plaintiffs' motion for summary judgment on under Labor Law § 240(1) and denied defendants' motion seeking dismissal of the § 240(1) claim and § 241(6) claim predicated on Industrial Code § 23-1.25(d).
 Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court and granted plaintiff summary judgment because the manlift was "inappropriate for the task at hand in light of the configuration of the building" and failed to afford plaintiff adequate protection pursuant to Labor Law § 240(1). The Court noted that there is nothing in the record to suggest either that the manlift was adequate for plaintiff's performance of the work or that some other, adequate, safety device was available to plaintiff for the performance of his injury-producing work.
PRACTICE POINT: Although Plaintiff clearly misused the manlift by standing on the guardrails, the only safety device provided to plaintiff was the manlift, which was insufficient to allow him to safely perform his work. Consequently, defendants failed to provide an adequate safety device in the first instance, so plaintiff's conduct, in that scenario, can never be the sole proximate cause of the accident.
Labor Law § 241(6) (TPW)
The First Department affirmed the denial of defendants' motion for summary judgment seeking dismissal of the Labor Law § 241(6) claim predicated on an alleged violation of Industrial Code (12 NYCRR) § 23-1.25(d) as defendants failed to establish that they did not violate the regulation, that the regulation was not applicable to this case, or that any violation was not a proximate cause of plaintiff's injuries. Instead, defendants merely pointed to gaps in plaintiffs' proof, which was insufficient to meet their burden as movants.
Durasno v 680 Fifth Ave. Assoc., L.P.
March 08, 2022
Appellate Division, First Department
Plaintiff was allegedly injured after falling off a ladder while cleaning glass suspended from the ceiling at the store. He testified that he performed the work using an extension pole with a squeegee attached to one end, while both of his feet were on the rung one or two steps below the top of a twelve-foot ladder. He was unable to estimate the height of the glass except that it was more than fifteen feet above the floor, but he stated that he could not have cleaned the glass while standing on the floor because he would not have been able to apply sufficient force to the glass.
Defendant owned the premises and leased it to The Gap, which maintained a retail store at the location. The Gap employed plaintiff to perform cleaning and maintenance work at the premises and other Gap locations. The trial court granted The Gap's summary judgment motion dismissing the Labor Law § 240(1) claim.
Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court and denied The Gap's motion, finding issues of fact as to whether plaintiff was exposed to an elevation-related risk "attendant to his work [of washing windows] as it was intended to be performed" (see S.V.L. v PRM, LLC, 191 AD3d 564 [1st Dept 2021]). Defendant's expert affidavit raised issues of fact as to his own credibility in opining that plaintiff could have cleaned all of the glass while standing on the floor and plaintiff's description of the supplies he needed to use and did use in performing the work.
PRACTICE POINT: This case highlights the importance of expert affidavits, which are frequently used by both sides in Labor Law cases. It is critical to ensure that your expert conducts inspections of the subject area, including any available safety devices, obtains or reviews witness statements and/or photographs, and adequately explains any contradictions between plaintiff's description of the accident and the expert's opinion regarding causation. In this case, the expert's failure to address plaintiff's claims was fatal to defendants' motion, even though routine cleaning of windows unrelated to any ongoing construction, renovation, painting, alteration, or repair work is routine maintenance and thus not a protected activity.
Kuylen v KPP 107th St., LLC
March 08, 2022
Appellate Division, First Department
Plaintiff was working on a building renovation and entered one of the building's apartments to speak with a coworker, when a stack of 25-30 sheetrock boards that had been leaning against the wall fell on him. The trial court granted KKP's and Empact's separate motions for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims and denied plaintiff's cross-motion for summary judgment on those claims.
Labor Law § 240(1) (MAS)
The First Department unanimously modified the trial court's order to deny KPP's motion and to reinstate the Labor Law § 240(1) claim against it but affirmed dismissal of that claim as against Empact. Empact demonstrated that it was not the general contractor for the apartment work and had no authority to supervise, direct, or control plaintiff's work or the work in the apartments. Conversely, KKP, as the owner of the premises, was not entitled to dismissal of this claim because the record presents issues of fact as to whether plaintiff's injuries flowed directly from the application of the force of gravity to the sheetrock, whether the elevation differential was de minimus, and whether the combined weight of the sheetrock panels could generate a significant amount of force as it fell.
PRACTICE POINT: Courts routinely find triable issues of fact in "falling object" cases, like this one, whether the stack of boards was required to be secured. Summary judgment is also not warranted in cases where, as here, there is a dispute as to whether a protective safety device prescribed by § 240(1) could have provided adequate protection.
Labor Law § 241(6) (TPW)
The First Department affirmed the dismissal of plaintiff's Labor Law § 241(6) claim which was predicated upon a violation of Industrial Code 12 NYCRR § 23-2.1(a)(1). As plaintiff's accident occurred in an apartment unit rather than in a passageway, hallway, stairway, or other walkway, the Court deemed § 23-2.1(a)(1) inapplicable to the facts.
Fuentes v Lindsay Park Hous. Corp.
March 10, 2022
Appellate Division, First Department
Plaintiff was performing painting and plastering work in a vacant apartment when he allegedly slipped on and/or tripped over a thin plastic covering placed over newly installed flooring, which became entangled in his feet. The trial court denied defendant's motion for summary judgment dismissing the Labor Law §§ 241(6), 200, and common-law negligence claims.
Labor Law § 241(6) (TPW)
The First Department affirmed the denial of defendant's motion with respect to the Labor Law § 241(6) claim. It was correctly determined that plaintiff was performing his painting and plastering work in a vacant apartment in a construction context, however an issue of fact existed as to whether his slipping on and/or tripping over a thin plastic covering placed over newly installed flooring constituted a tripping hazard as defined in Industrial Code 12 NYCRR § 23-1.7(e).
 Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed denial of defendant's summary judgment motion, holding that triable questions of fact existed regarding whether defendant's employees created or had actual or constructive notice of the condition at issue.
Public Adm'r of Queens County v 124 Ridge LLC
March 10, 2022
Appellate Division, First Department
Decedent Patino, a Casur employee, was performing renovation work when he allegedly fell from an extension ladder. There were no witnesses to the accident. The trial court denied 124 Ridge's motion for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims and denied plaintiff's cross-motion for summary judgment under § 240(1). The trial court also denied Casur's motion for summary judgment dismissing the third-party claims for contribution, common-law indemnification, contractual indemnification, and breach of contract.
Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court and dismissed the Labor Law §§ 240(1) and 241(6) claims because Casur and 124 Ridge demonstrated that no one was in a position to establish the cause of the accident, as there was no direct or circumstantial evidence as to how the accident happened. Since the accident may well have been caused by a misstep or loss of balance, rather than by a defective or improperly secured ladder, any determination by the trier of fact as to the cause of the accident would be based on speculation. The Court held that the Noseworthy doctrine is not applicable to this case because Casur and 124 Ridge's knowledge as to the cause of the accident is no greater than plaintiffs.
PRACTICE POINT: In cases where plaintiff either died or is severely injured, such that his or her memory is damaged (e.g., amnesia), the Noseworthy doctrine allows the court to hold a plaintiff to a lesser evidentiary standard and even shift the burden of proof to defendant, but only upon a showing by clear and convincing evidence that plaintiff's loss of memory renders him or her unable to recall the events of the incident.
Indemnity Issues in Labor Law (BFM)
The First Department held that as there was no evidence as to how the accident happened, the contribution, common-law indemnification, and contractual indemnifications against Casur should have been dismissed. The Court found that the trial court correctly denied summary judgment to Casur on 124 Ridge's breach of contract claim for failure to procure insurance. Casur failed to establish that it procured the insurance it was contractually obliged to purchase, since it failed to submit the insurance policy. Furthermore, there was an issue of fact as to whether the contract, which was dated before decedent's accident and executed nearly two years afterwards, was intended to apply at the time of the accident.
Herrera v Kent Ave. Prop. III LLC
March 15, 2022
Appellate Division, First Department
Plaintiff was struck by an excavator as he was bringing debris up an earthen ramp and was allegedly injured after he rolled down the ramp after being struck. The trial court denied Kent and JE Levine Builder's motion for summary judgment dismissing the Labor Law § 240(1) claim, denied J&A Concrete's cross-motion dismissing the §§ 240(1) and 241(6) claims as against it, and granted plaintiff's motion for partial summary judgment under § 240(1).
Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court and dismissed the Labor Law § 240(1) claim because plaintiff's injuries were not "the direct consequence of a failure to provide adequate protection against a risk from a physically significant elevation differential" (see Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]).
PRACTICE POINT: The purpose of Labor Law § 240(1) is to protect construction workers, not from routine workplace risks (e.g., falling down a ramp), but from the pronounced risks arising from construction work site elevation differentials. Merely because a worker is injured while working above or below ground does not automatically mean that the injury resulted from an elevation-related risk contemplated under the statute.
Labor Law § 241(6) (TPW)
The First Department unanimously declined plaintiffs' request to search the record with respect to their Labor Law § 241(6) claim given the issues were not initially raised on appeal.
Valentine v 2147 Second Ave., LLC
March 15, 2022
Appellate Division, First Department
Plaintiff, project safety coordinator for nonparty Homeland, filed suit alleging injuries sustained at a demolition and construction project. Second Ave. owned the property and retained GSA to serve as the architect of record. Shan Construction was the general contractor but was later replaced by Sunshine. The trial court granted GSA's and Sunshine's motion for summary judgment dismissing the complaint and denied plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim.
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed dismissal of this claim as against GSA, the project architect, because there is no evidence that GSA committed an affirmative negligent act and there is no provision in its contract creating a clear obligation explicitly running to and for the benefit of the workers. Sunshine established that it was not on site as a general contractor or manager until after the date of plaintiff's accident and plaintiff had no knowledge of when Sunshine came onto the project nor recalled interacting with anyone from that company.
The Court also affirmed the trial court's order denying plaintiff summary judgment because he never properly asserted a § 240(1) claim as it was not plead in any of his complaints. His assertion in his supplemental bill of particulars served almost eight years after the accident, does not help him since the purpose of a bill of particulars is to amplify pleadings, not add a new theory or claim.
PRACTICE POINT: Remember the four criteria of every Labor Law claim: (i) appropriate plaintiff, (ii) appropriate defendant, (iii) appropriate activity, and (iv) elevation-related/gravity-related risk. Here, GSA and Sunshine established they were not appropriate Labor Law defendants.
Payne v NSH Community Servs., Inc.
March 17, 2022
Appellate Division, First Department
Plaintiff and his coworkers were traversing a rebar mat to exit a parking garage during their coffee break. The rebar mat had just been installed in the garage under construction. The mat is a latticework of rebars whose purpose is to reinforce the concrete that will be poured later to form a ramp leading to the ground level of the garage. Scalamandre's subcontract with Turner required it to provide a "solid walking surface" over the rebar mat if the rebar mat "[had to] be crossed by any trade." As plaintiff was walking across the rebar mat, the toe of one of the shoes caught on one of the rebars, causing him to fall forward, and his face and knee struck the ground.
Plaintiff claimed the ground was about twelve inches below the rebar mat. Other witnesses testified that the rebar mat was only about two to three inches above the ground. The trial court denied Scalamandres' motion for summary judgment dismissing the Labor Law §§ 240(1), 241(6), and common-law negligence claims, denied NSH and Turner's cross-claim for contractual indemnification against it, denied NSH and Turner's cross-motion for summary judgment dismissing the complaint, granted Scalamander's motion to dismiss NSH and Turner's cross-claim for breach of contract based on failure to procure insurance naming them as additional insureds, and granted NSH and Turner's cross-motion for contractual indemnification against Scalamandre.
Labor Law § 240(1) (MAS)
The First Department affirmed the trial court's denial of the summary judgment motions seeking dismissal of the § 240(1) claim as a factual issue exists as to whether plaintiff's fall and injury were the result of the exposure of an elevation-related hazard and whether plaintiff was engaged in work that posed an elevation-related risk at the time of his fall. The Court also affirmed the trial court's finding of a factual issue as to whether Scalamandre was a statutory agent.
PRACTICE POINT: There is no bright-line minimum height differential that determines whether an elevation-related hazard exists. Rather, the relevant inquiry is whether the hazard is one "directly flowing from the application of the force of gravity to an object or person."
Labor Law § 241(6) (TPW)
The First Department unanimously modified the trial court's order by finding that the Labor Law § 241(6) claim should have been dismissed. Industrial Code 12 NYCRR § 23-5.1(e)(5) provides for a minimum width for planked scaffold platforms. Given that the rebar mat in question was for the purpose of reinforcing the concrete to create a permanent ramp in the garage, the rebar mat was a normal appurtenance to the garage. As the rebar mat was not a device designed to protect a worker from elevation-related hazards, the Court held that it could not be considered a planked scaffold under the regulation.
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department modified the trial court's order and granted summary judgment to NSH and Turner on the Labor Law 200 and common-law negligence claims. It held the evidence established that those defendants did not have the authority to supervise or control the injury-producing work. However, it held that summary judgment properly was denied on Scalamandre's motion as to the common-law negligence claim, as there were issues of fact regarding whether Scalamandre created a dangerous condition by leaving the rebar mat exposed.
Indemnity Issues in Labor Law (BFM)
The First Department found that the trial court correctly granted summary judgment to NSH and Turner on their cross claim for contractual indemnification. The accident "arose out of" Scalamandre's work, as the installation and covering of the rebar mat was part of its contractual undertaking, and the plaintiff's accident occurred in connection with his use of the rebar mat.
Relying on correspondence from Scalamandre's insurer stating that its insurance policy contained a blanket additional insured endorsement covering parties that it had contractually agreed to name as additional insureds, the Court held that the trial court correctly dismissed NSH and Turner's claim for breach of contract based on failure to procure insurance.
Waldron v City of New York
March 17, 2022
Appellate Division, First Department
Plaintiff, an electrical foreman on a building renovation project, was allegedly injured in a fall down a stairway building. The trial court denied plaintiff's cross-motion for summary judgment on his Labor Law §§ 240(1) and 241(6) claims.
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court's decision as defendant raised a question of fact as to whether the stairway was a safety device that could rise to the extraordinary protections of Labor Law § 240(1).
PRACTICE POINT: A permanent staircase is not designed as a safety device to afford protection from an elevation-related risk, but a fall down a permanent staircase without guardrails is covered under § 240(1) where the injured worker was required to work on it to complete his task (see Nicometi v Vineyards of Fredonia, LLC, 25 NY3d 90, 96-97 n 3 [2015]; compare Colon v Carnegie Hall Socy., Inc., 159 AD3 655 [1st Dept 2018] [accident within coverage of § 240 where permanent stairway that plaintiff fell down was elevated surface on which he was required to work and was also sole means of access to his work area]).
Labor Law § 241(6) (TPW)
The First Department unanimously affirmed the denial of plaintiff's motion for summary judgment as to the Labor Law § 241(6) claim predicated on an alleged violation of Industrial Code § 23-2.7(e), which requires handrails in stairwells. Plaintiff's testimony that he reached for a handrail as he was falling only to find there was none there was deemed by the Court sufficient to raise an issue of fact as to whether the lack of handrails proximately caused his injuries.
Muco v Board of Educ. of the City of N.Y.
March 24, 2022
Appellate Division, First Department
Plaintiff fell on stairs of an unsecured scaffold that lacked handrails in certain sections when it suddenly moved. The trial court granted plaintiff summary judgment as to liability on his Labor Law § 240(1) claim and denied defendants' motion seeking dismissal of the § 241(6) claim.
Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court and denied plaintiff summary judgment because defendants' witnesses, who inspected the scaffold immediately after plaintiff's accident, averred that the scaffold was stable and properly secured, and had handrails in all sections, directly contradicting plaintiff's testimony and his coworker's affidavit. Therefore, the Court held that defendants' evidence sufficiently raised issues of fact although none of the witnesses saw plaintiff's accident.
PRACTICE POINT: When there are two different versions of how an injured worker's accident occurred, one of which does not involve a violation of the statute, generally it will result in a finding of a question of fact. Here, defendants were able to directly contradict plaintiff's claims and, thus, defeat plaintiff's summary judgment motion.
Labor Law § 241(6) (TPW)
The First Department affirmed the trial court's denial of defendants' motion for summary judgment to the extent it sought dismissal of plaintiff's Labor Law § 241(6) claim. According to plaintiff's testimony, the photographs that defendants submitted did not show the area from where plaintiff fell and were therefore insufficient to establish that safety railings were placed on the scaffold. Further, the Court held that a material issue of fact remained as to whether the lighting was a proximate cause of plaintiff's accident. Defendants argued that plaintiff failed to claim that poor lighting was a proximate cause of his accident. However, plaintiff was not asked at his deposition whether the lighting conditions were a factor in causing his accident, and the Court declined to "penalize" plaintiff for failing to address a question he was never asked.
Ormsbee v Time Warner Realty Inc.
March 29, 2022
Appellate Division, First Department
Plaintiff was lifting the lid of a gang box to retrieve tools and materials when the lid suddenly fell, allegedly causing injuries to his shoulders, although the lid did not strike any part of his body. The trial court denied plaintiffs' motion for partial summary judgment on his Labor Law § 240(1) claim and the § 241(6) claim based on Industrial Code (12 NYCRR) § 23-2.1(a)(1) and granted Richtner and Jazz's motion for summary judgment dismissing the § 240(1) claim but denied the motion as to § 241(6) predicated on Industrial Code §§ 23-1.5(c)(3) and 23-6.1(b).
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed dismissal of the § 240(1) claim because plaintiff's lifting of the lid of the gang box does not qualify as a covered activity under the statute. There was no "significant risk inherent in [it] because of the relative elevation at which [it] [had to] be performed or at which materials or loads [had to] be positioned or secured" (Rocovich v Con. Ed. Co., 78 NY3d 509, 514 [1991]). Plaintiff was standing at the same level as the gang box when the lid fell, and the lid did not strike him. Accordingly, the lifting of the lid posed the usual and ordinary dangers of a construction site.
PRACTICE POINT: This case is another reminder of the four criteria of every Labor Law claim, previously discussed, that we use to analyze the applicability of § 240(1). In this case, the injured worker's activity, lifting the lid of a gang box, is simply not the type of event covered under the statute.
Labor Law § 241(6) (TPW)
The First Department unanimously affirmed the decision of the trial court. First, Industrial Code 12 NYCRR § 23-2.1(a)(1) was deemed not applicable since plaintiff's injury occurred in an open work area, not in a "passageway, hallway, stairway, or other thoroughfare" as required by the section. With respect to the claim predicated on a violation of Industrial Code § 23-6.1(b), the Court also correctly denied dismissal as defendants raised the argument for the first time in their reply papers. Conversely, the claim based upon § 23-1.5(c)(3), which requires that all devices, safeguards, and equipment be kept in sound and operable condition and be repaired or replaced immediately if damaged, was deemed applicable by the Court as the hydraulic pumps in the gang box which were intended to make opening and closing the lid easier but were not functional at the time of plaintiff's accident.
Bates v Porter
March 9, 2022
Appellate Division, Second Department
Defendants, retired art professors, own property upon which are situated a one-family house and a two-story barn. The barn, which contains a kitchen, bathroom, and sleeping area, is used by defendants as a studio for creating art, as a garage when they travel, as a storage area for art supplies and household tools, and as a place to entertain and house guests. Although defendants sell some of their art through galleries, they do not use the barn to show or sell art.
Defendants hired plaintiff's employer to paint the exterior of both the house and the barn. During the course of painting the barn, plaintiff allegedly fell from a ladder and was injured. The trial court granted defendants' motion for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims and denied plaintiffs' cross-motion for summary judgment under § 240(1).
Labor Law § 240(1) (MAS)
The Second Department affirmed dismissal of plaintiff's §§ 240(1) and 241(6) claims based on the homeowners' exemption because defendants' evidence established that the work being performed was directly related to the residential uses of their property and it is undisputed that they did not direct or control plaintiff's injury-producing work.
PRACTICE POINT: Under Labor Law §§ 240(1) and 241(6), owners of one- and two-family dwellings who contract for but do not direct or control work on their property are exempt from liability imposed by those statutes. Where the property is used for both residential and commercial purposes, the courts employ a flexible site and purpose test to determine whether the work contracted for directly relates to the residential use of the building so as to warrant application of the exemption. Where, as in this case, an owner contracts for work that is directly related to the residential use of the home, that owner is shielded by the homeowners' exemption, even if the work also serves a commercial purpose.
Mejia v 69 Mamaroneck Rd. Corp.
March 9, 2022
Appellate Division, Second Department
At the time of the accident, plaintiff, a roofer, was working on an inclined portion of the roof. He was wearing a safety harness that was attached to a rope. A coworker asked for plaintiff's assistance on another portion of the roof. In order to reach the coworker, plaintiff walked up the incline to a flat portion of the roof, where he untied his safety harness from the rope, which did not extend to the area where his colleague was working. The flat portion of the roof was covered with a black ice and water shield, which prevented plaintiff from seeing the hole that had been cut for the chimney. While walking on the flat portion of the roof, plaintiff fell through an open hole in a roof that was cut for the installation of a chimney. The trial court denied plaintiff's motion for summary judgment under Labor Law § 240(1).
Labor Law § 240(1) (MAS)
The Second Department reversed the trial court and granted plaintiff's motion for summary judgment as he established that the statute was violated, and that said violation was a proximate cause of his injuries. The evidence showed that plaintiff was exposed to the elevation-related risk of the hole that was cut into the roof, that the hole through which plaintiff fell was uncovered and unguarded, and the location of the hole was concealed by an ice and water shield. Thus, the absence of protective equipment covering or guarding the hole was a proximate cause of his injuries.
The Court rejected defendants' sole proximate cause argument because plaintiff demonstrated a violation of the statute and that the violation was a proximate cause of his fall; therefore, plaintiff's comparative negligence, if any, is not a defense to a § 240(1) claim.
PRACTICE POINT: Recall the four elements of the sole proximate cause defense: (i) plaintiff had an appropriate safety device, which was readily available to him or her; (ii) plaintiff was instructed to use and/or knew he or she was expected to use it; (iii) he or she failed to use or misused the safety device for no good reason; and (iv) had the readily available safety device been properly used, the injuries would not have occurred. Here, there was no evidence that plaintiff was advised of an available alternative route to the top of the scaffolding, or alternate method by which to perform his work.
Schutt v Dynasty Transp. of Ohio, Inc.
March 9, 2022
Appellate Division, Second Department
Noble was hired to install elevators in a building being constructed on property owned by Habberstad. T.G. Nickel was the general contractor on the project. The elevator components that were to be installed in the building were distributed by Canton, who loaded the components onto a truck owned and operated by Dynasty. Dynasty delivered the components to the work site.
When the Dynasty truck arrived at the site, it was parked in a designated loading area connected to the building under construction. Plaintiff, an elevator installation mechanic employed by Noble, and his coworkers, were assigned to unload the elevator components from the truck. Plaintiff entered the twenty-five to thirty foot long box truck and prepared to move a hydraulic jack that weighed at least 1,000 pounds. Plaintiff was placing nylon straps around the head of the jack when his foot slipped. He fell, toppling the jack two feet to the floor of the truck. He landed on top of the jack with his foot underneath it, allegedly injuring his shoulders and back. After he fell, he noticed oil on his pants and on the floor of the truck.
The trial court granted the separate motions of Habberstad and T.G. Nickel for summary judgment dismissing the Labor Law § 240(1) claim and § 241(6) claim predicated on an alleged violation of Industrial Code (12 NYCRR) § 23-1.7(d) against each of them, granted the separate motion of Canton for summary judgment dismissing the common-law negligence claim against it, and granted Dynasty's motion for summary judgment dismissing the complaint against it.
Labor Law § 240(1) (MAS)
The Second Department affirmed dismissal of the § 240(1) claim against Dynasty, who demonstrated that it was not an agent of Habberstad or T.G. Nickel with respect to plaintiff's injury-producing work. With respect to Habberstad and T.G. Nickel, they established that plaintiff's accident was "caused by a separate hazard" – spilled oil – "unrelated to any elevation risk," and that the spilled oil, not the absence or inadequacy of any safety device, caused his fall. Therefore, plaintiff cannot recover under § 240(1).
PRACTICE POINT: Liability arises under Labor Law § 240(1) only where plaintiff's injuries are the "direct consequence" of "a physically significant" elevation-related risk, not a separate and ordinary tripping or slipping hazard. Bonus tip: any party with the authority to supervise and control the injury-producing activity which brought about the injury may be vicariously liable as a statutory agent under Labor Law § 240(1) and 241(6).
Labor Law § 241(6) (TPW)
The Second Department modified the trial court's decision as to the Labor Law § 241(6) claim. First, Dynasty established its entitlement to judgment as a matter of law dismissing this claim by demonstrating that it was not an agent of Habberstad or T.G. Nickel with regard to plaintiff's work and thus not a proper Labor Law defendant.
However, Habberstad and T.G. Nickel failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 241(6) claim predicated on 12 NYCRR 23-1.7(d). Industrial Code § 23-1.7(d) provides 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." On appeal, contrary to the trial court's conclusion, the Court held that Habberstad and T.G. Nickel failed to make a prima facie showing that the floor of the truck on which plaintiff was performing work was not the type of surface contemplated under § 23-1.7(d).
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed dismissal of the common-law negligence claim against Canton Elevator and Dynasty, holding that those defendants demonstrated that they did not create or have actual or constructive notice of the condition that allegedly caused plaintiff's fall. Further, it held that plaintiffs' contention that the oil on which plaintiff slipped had leaked from the hydraulic jack and that Canton and Dynasty had negligently created this condition due to either the positioning of the jack in the truck, damage to a portion of the jack, or damage to the jack's packaging, was purely speculative.
Southerton v City of New York
March 16, 2022
Appellate Division, Second Department
Plaintiff alleged that he was an employee of a subcontractor who was retained by the general contractor to complete certain aspects of repair work on a residence in Rockaway Beach damaged by Hurricane Sandy. Plaintiff was cutting planks of wood with a hand-held powered saw, when the saw allegedly malfunctioned, severing the pinky finger of his left hand. The trial court granted the City's motion for summary judgment dismissing the Labor Law §§ 241(6) and 200 claims and denied plaintiff's cross-motion for summary judgment on his § 241(6) claim against the City.
Labor Law § 241(6) (TPW)
The Second Department affirmed the trial court's dismissal of the Labor Law § 241(6) claim against the City. As a predicate for Labor Law liability, a party who is not the owner nor general contractor may be deemed an agent of the owner or general contractor only if it had supervisory control and authority over the work being completed where a plaintiff is injured. The contracts and other evidence submitted by the City established that the City only had general supervisory authority to oversee the progress of the work without authority to exercise specific supervision and control over the work which brought about the plaintiff's injury rendering the City an improper Labor Law defendant.
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed dismissal of the Labor Law § 200 and common-law negligence claims. In this "means and methods" case, the City established that it did not have the authority to supervise or control the manner in which the work was performed.
Chihuahua v Birchwood Estates, LLC
March 23, 2022
Appellate Division, Second Department
Plaintiff was sanding the walls and the ceiling of a house owned by Birchwood. Plaintiff allegedly fell from a makeshift scaffold, composed of a ladder and extension plank. Doyle contracted with Birchwood to construct the homes in the development and hired JMG to perform the drywall work. The trial court granted plaintiffs' motion for summary judgment under Labor Law § 240(1) and denied JMG's motion for summary judgment, rejecting its argument that it was plaintiff's employer at the time of the accident. Plaintiffs then discontinued their claims against JMG.
The action proceeded to trial on Birchwood's and Doyle's crossclaims for common-law indemnification and contribution against JMG and on JMG's Workers' Compensation defense. After a bifurcated trial, the jury found in favor of Birchwood and Doyle, finding plaintiff was not an employee of JMG at the time of the accident. The trial court then denied JMG's CPLR § 4404(a) motion to set aside the jury verdict and for a new trial on the grounds that it was contrary to the weight of the evidence, inconsistent, and in the interest of justice.
Indemnity Issues in Labor Law (BFM)
The Second Department affirmed the trial court's order and dismissed the appeal. Contrary to JMG's claims, the jury's findings that plaintiff was not working as an employee of JMG at the time of the accident and that JMG supervised, directed, and/or controlled his injury-producing work were not contrary to the weight of the evidence, as those findings were based on a fair interpretation of the evidence adduced at trial. The trial court also did not err in failing to give, as requested by JMG at trial, an independent contractor charge to the jury as it related to plaintiff. At trial, during the charge conference, JMG's counsel admitted that there was no evidence that plaintiff was an independent contractor. Considering the record as a whole, the Court held that the trial court providently exercised its discretion in excluding JMG's purported W-2 and tax form regarding plaintiff's alleged employment from being admitted into evidence on the last day of trial, especially because this document had not been previously disclosed.
Chuqui v Amna, LLC
March 23, 2022
Appellate Division, Second Department
Plaintiff allegedly was injured while working at premises owned by Amna and managed by Premier, when pieces of sheet metal, on a cart he was helping to move from one area of the floor to another, fell on him. Plaintiff was employed by Noah, which was the general contractor on the project. The trial court denied plaintiff's motion for summary judgment on his Labor Law §§ 240(1) and 241(6) claims and granted Amna's motion for summary judgment dismissing those claims but denied its motion seeking dismissal of the § 200 and common-law negligence claims as well as on its contractual indemnification claim.
Labor Law § 240(1) (MAS)
The Second Department affirmed dismissal of the § 240(1) claim because plaintiff failed to establish a violation of the statute based on the evidence submitted, which demonstrated that the accident was not the result of an elevation-related hazard or gravity-related risk encompassed by § 240(1). Thus, the trial court properly denied plaintiff's motion for summary judgment and granted Amna's and Premier's motions for summary judgment dismissing the § 240(1) claim.
PRACTICE POINT: In determining whether a plaintiff is entitled to the extraordinary protections of Labor Law § 240(1), the single decisive question is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential (see Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]). Thus, a plaintiff must show more than simply that an object fell causing injury to a worker. A plaintiff must prove that the object fell, (1) while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute, or (2) that the falling object required securing for the purposes of the undertaking. Here, the injured worker could not establish either of these things in order to prove the statute was violated.
Labor Law § 241(6) (TPW)
The Second Department affirmed the dismissal of the § 241(6) claim predicated on a violation 12 NYCRR 23-2.1(a)(2), which provides, in relevant part, that "[m]aterial and equipment shall not be stored upon any floor, platform or scaffold in such quantity or of such weight as to exceed the safe carrying capacity of such floor, platform or scaffold," and that "[m]aterial and equipment shall not be placed or stored so close to any edge of a floor, platform or scaffold as to endanger any person beneath such edge." Given the underlying facts, the Supreme Court properly concluded that 12 NYCRR 23-2.1(a)(2) was not applicable as the sheet metal was being transported at the time of the injury rather than placed or stored as required by the Industrial Code section.
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed denial of the motion as to Labor Law § 200 and common-law negligence. It held that when an accident is alleged to involve defects in both the premises and the equipment used at the work site, a defendant moving for summary judgment with respect to a claim alleging a violation of Labor Law § 200 is obligated to address the proof applicable to both liability standards. A defendant moving for summary judgment in such a case may prevail only when the evidence exonerates it as a matter of law for all potential concurrent causes of plaintiff's accident and injury, and when no triable issue of fact is raised in opposition as to either relevant liability standard. Here, however, defendants failed to demonstrate they did not have actual or constructive notice of the dangerous condition of the rocks or debris on the floor which, according to plaintiff's version of the accident, caused the cart to stop and tip. Defendants attempted to argue that this condition arose out of the means and methods of the work (rather than a dangerous condition on the premises) but raised that argument for the first time on appeal, so the court disregarded it.
Denisco v 405 Lexington Ave., LLC
March 23, 2022
Appellate Division, Second Department
Plaintiff was allegedly injured when he fell from a ladder while performing construction work at property owned by TS 405 Lexington and managed by Tishman (collectively the Tishman defendants). Clune allegedly was the general contractor on the project. The trial court granted Clune's motion for summary judgment dismissing the complaint against it on the grounds that plaintiff was collaterally estopped from asserting that he sustained injuries as a result of a workplace accident based on a determination by the Workers' Compensation Board, which found that the accident claimed by plaintiff did not occur, and granted the Tishman defendants' motion, pursuant to CPLR § 3025(b), for leave to amend their answer.
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court's conclusion that plaintiff's action was barred by the doctrine of collateral estoppel and that Clune specifically plead it as an affirmative defense. The Court also held that the trial court providently exercised its discretion in granting the Tishman defendants' motion to amend their answer to assert the affirmative defense of collateral estoppel. The determination of the Worker's Compensation Board affirmed a decision of an ALJ, which disallowed plaintiff's workers' compensation claim upon finding that the injuries were sustained when plaintiff left a moving vehicle, and not from a work-related incident.
At the ALJ hearing, plaintiff testified that he fell from a ladder at work, hitting his head twice on a sprinkler, falling to the ground, and landing on his back and neck. However, other testimony and documentary evidence, including medical records and police reports, established that plaintiff jumped from a moving vehicle, which it was determined, was the cause of his injuries.
Defendants established that the issue decided in the workers' compensation proceeding, as well as the injuries plaintiff allegedly sustained were not work-related, was identical to that presented in this action to recover damages for personal injuries. In opposition, the Court held that plaintiff failed to raise an issue of fact as to whether the issue was identical and failed to show that he lacked a full and fair opportunity to litigate the issue.
PRACTICE POINT: Quasi-judicial determinations such as those from the Workers' Comp. Board and other administrative agencies are entitled to collateral estoppel effect where the issue a party seeks to preclude in a subsequent civil action is (1) identical to a material issue that was necessarily decided by the administrative tribunal and (2) there was a full and fair opportunity to litigate before that tribunal. Here, plaintiff had no leg to stand to on since the issue of whether plaintiff was injured in a work-related incident was already fully litigated by plaintiff and necessarily decided against him by the ALJ and Workers' Comp. Board.
Petersen v Forest City Ratner Cos., LLC
March 23, 2022
Appellate Division, Second Department
Plaintiff, a job-site superintendent employed by the general contractor on a construction project, allegedly was injured when a temporary barricade fell over on top of him. The case went to trial and the jury found in favor of defendants, concluding that plaintiff's actions had been the sole proximate cause of his accident. The trial court denied plaintiff's motion, pursuant to CPLR § 4404(a), to set aside a jury verdict on the issue of liability under Labor Law § 240(1) as against Academy, Express, and FC Yonkers.
Labor Law § 240(1) (MAS)
The Second Department affirmed dismissal of the § 240(1) claim because there was a valid line of reasoning and permissible inferences which could have led a rational jury to concluded that it was plaintiff's own conduct in removing the bracing reinstalled by Academy, rather than any violation of § 240(1), that was the sole proximate cause of his alleged injuries.
PRACTICE POINT: For a court to conclude, as a matter of law, that a jury verdict is not supported by legally sufficient evidence, it is necessary to first conclude that there is simply no valid line of reasoning or permissible inferences, which could possibly lead rational persons to the conclusion reached by the jury, on the basis of the evidence presented at trial.
Heras v Ming Seng & Assoc., LLC
March 30, 2022
Appellate Division, Second Department
Plaintiff was allegedly injured when a steel beam that he and a coworker were hoisting fell on him at premises owned by Ming. Reliable NYC was the general contractor, who retained plaintiff's employer, Jeaos. The trial court granted plaintiff's motion for partial summary judgment on liability under Labor Law § 240(1). The trial court thereafter granted defendants leave to reargue, vacated its prior determination, and denied plaintiff's motion on his § 240(1) claim.
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court's order vacating its prior decision and denying plaintiff summary judgment. Defendants raised a triable issue of fact as to whether plaintiff's incident resulted from a violation of the statute. Where, as here, "credible evidence reveals differing versions of the accident, one under which defendants would be liable and another under which they would not, questions of fact exist making summary judgment inappropriate."
PRACTICE POINT: While this case does not discuss the contradicting testimony as to how the injured worker's accident occurred, identifying differing versions, usually through early investigation, can be crucial to defeating plaintiff's § 240(1) summary judgment motion. Hurwitz and Fine has a 24-hour, emergency response team and we are available to assist with your early investigation needs at a moment's notice, just give us a call!
Nill v Gaco W., LLC
March 30, 2022
Appellate Division, Second Department
Decedent died from lung cancer attributable to the inhalation of silica. Plaintiff alleged in the wrongful death action that decedent was not provided with a respirator while applying coating in connection with a roofing project. Defendants allegedly were the general contractor for the project or as agent of the property owners. The trial court denied plaintiff's motion pursuant to CPLR § 3124 to compel ACR Management and Roebuck to comply with discovery demands for defendants' tax returns, phone records, and documents pertaining to nonparty Paro, which allegedly made payments to defendants on behalf of the property owners.
(TPW) Labor Law § 241(6)
The Second Department affirmed the trial court's order denying plaintiff's motion to compel because plaintiff failed to make the requisite showing that the information sought is indispensable to the Labor Law § 241(6) claim and could not be obtained from other sources. The Court also held that plaintiff failed to establish that his broad demands for phone records and documents regarding Paro would result in the disclosure of relevant evidence or were reasonably calculated to lead to the discovery of information bearing on the Labor Law claim.
Singh v 180 Varick, LLC
March 30, 2022
Appellate Division, Second Department
Plaintiff, an independent contractor, was injured while performing HVAC-related work for Ostra Capital, a tenant in a building managed by 180 Varick. Plaintiff was allegedly injured while descending a six-foot A-frame ladder. When he reached the second rung from the bottom of the ladder and lost his balance, he fell back onto his left side. Plaintiff was unable to recall whether the ladder moved in any way before he fell. The trial court granted defendants' motion for summary judgment dismissing the Labor Law §§ 240(1), 241(6), and 200 claims.
Labor Law § 240(1) (MAS)
The Second Department affirmed dismissal of the § 240(1) claim because defendants established that plaintiff's ladder was not defective, that additional safety devices were not required as a matter of law, and that plaintiff's actions were the sole proximate cause of the accident. In opposition, plaintiff failed to raise a triable issue of fact as to whether the ladder was inadequate, or whether his own actions were the sole proximate cause of the accident.
PRACTICE POINT: In cases where the evidence shows the injured worker fell from a ladder because he or she lost his balance, the ladder was not defective or inadequate, and did not otherwise fail to provide protection, dismissal of the § 240(1) claim is proper.
Labor Law § 241(6) (TPW)
The Second Department likewise affirmed dismissal of the § 241(6) claim. The defendants demonstrated, prima facie, that the alleged violations of 12 NYCRR 23-1.7(d) and 23-1.21(b) were inapplicable to the facts of the case by submitting the plaintiff's deposition testimony in which he testified that his fall was caused by his own loss of balance. In opposition, the plaintiff failed to raise a triable issue of fact.
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed dismissal of the § 200 claim. It noted that a defendant is not liable under Labor Law § 200 where plaintiff's conduct is the sole proximate cause of the accident. As with § 240(1), because defendants met their burden of proof on summary judgment, and plaintiff failed to raise a triable question of as to whether his actions were the sole proximate cause of the accident, the trial court properly dismissed that claim.
 New York Industrial Code Regulations (EDA)
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