Labor Law Pointers - Volume XI, No. 6

Volume XI, No. 6
Wednesday, May 4, 2022
 Note from Marc A. Schulz:

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’s edition contains three Court of Appeals decisions that caused us to send out our first Special Edition in a long time. For those keeping track, and not counting the CIDA update or the annual Christmas editions Dave sends or even my 2019 write-up on Brito v Gomez, you have to look all the way back to 2015 for our last Special Edition involving a Labor Law § 240(1) claim. We believe the Bonczar case is the most important of the three newly issued cases because the Court of Appeals in that case expanded the sole proximate cause defense to now include the injured worker’s actions in setting up the ladder or failing to check the set-up before falling off.
 
Our fearless leader, Dave Adams, continues his vacation adventures, this time on a golfing trip in Scotland. As avid subscribers know, he still found a picture for this month (from his most recent vacation to Spain). However, I am afraid that if I write this introduction well enough, I’ll be writing it a lot more frequently, so here I go.
 
There is a guy on a ladder hanging a set of draperies at, shall we say, the Royal Palace. He falls off the ladder and is injured after the ladder moved or shifted. Is it a § 240(1) case?
 

 
The guy is an injured worker who is a person so employed and is thus an appropriate Labor Law plaintiff. The owner of the property is an appropriate Labor Law defendant with plenty of coverage, so no problem there.  The issue in this fact-pattern is that plaintiff’s task in hanging a set of draperies is not a covered activity because its more akin to cosmetic maintenance or decorative modifications rather than the “altering” of a building or structure for purposes of Labor Law § 240(1). Accordingly, this falling guy’s § 240(1) claim should be dismissed, and he is not entitled to the extraordinary protections afforded under the statute.
 
Feel free to reach out with any questions related to Labor Law or risk transfer as we truly enjoy training others with our presentations and webinars. Although sleep-deprived, I am working in the office, nose to the grindstone as my boss likes to say, while Dave prances around Scotland and Eric Bernhardt is basking in the joys of parenthood.

 
Marc
 
Marc A. Schulz
Hurwitz & Fine, P.C.

424 Main Street
Suite 1300 Liberty Building
Buffalo, New York 14202
Phone:  716.849.8900
Fax:  716.855.0874
Email:  [email protected]
H&F Website:  www.hurwitzfine.com


Don’t forget to subscribe to our other publications:

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

Employment & Business Litigation Pointers:   This newsletter aims to provide our clients and subscribers with timely information and practical, business-oriented solutions to the latest employment and general business litigation developments.  Contact Joseph S. Brown at [email protected] to subscribe.


Medical & Nursing Home Liability Pointers:  Medical & Nursing Home Liability Pointers provides the latest news, developments, and analysis of recent court decisions impacting the medical and long-term care communities. Contact Chris Potenza at [email protected] to subscribe.
 
Premises Pointers This monthly electronic newsletter covers current cases, trends and developments involving premises liability and general litigation. Contact Jody Briandi at [email protected] to subscribe.

Products Liability Pointers:   This monthly newsletter covers all areas of products liability litigation, including negligence, strict products liability, breach of warranty claims, medical device litigation, toxic and mass torts, regulatory framework and governmental agencies. Contact Chris Potenza at [email protected] to subscribe. 
April 28, 2022
Court of Appeals
 
Plaintiff was injured when he fell from a ladder while retrofitting a fire alarm system at defendant’s movie theater. After climbing up and down to the third or fourth step of the ladder several times without issue, he began to descend when the ladder allegedly shifted and wobbled. Plaintiff did not know why the ladder wobbled or shifted and acknowledged he might not have checked the positioning of the ladder or the locking mechanism, despite having been aware of the need to do so.
 
The trial court granted plaintiff’s motion for partial summary judgment on liability under Labor Law § 240(1). The Fourth Department reversed the trial court, holding that plaintiff failed to show that he was entitled to judgment as a matter of law (158 AD3d 1114, 1115 [4th Dept 2018]). The Fourth Department found factual issues as to whether a statutory violation had occurred and if plaintiff’s own acts and omissions, particularly as to the ladder’s positioning and plaintiff’s failure to check the ladder's locking mechanisms, were the sole proximate cause of his injury
 
On remand, the § 240(1) claim was tried by a jury. The trial court reserved judgment on plaintiff’s motion for a directed verdict and the jury returned a verdict for defendant, finding no violation of the statute and that plaintiff’s failure to position the ladder properly was the sole proximate cause of his injuries. The trial court denied plaintiff’s motion to set aside the verdict as against the weight of the evidence and the Fourth Department unanimously affirmed that judgment in defendant's favor.
 

Labor Law § 240(1) (EDA)
The most important portion of this decision is the Court of Appelas upheld the jury’s decision that plaintiff’s own setting of the ladder and failure to check the positioning of the ladder was sufficient to uphold the sole proximate cause defense. While only used to uphold the jury’s decision, this will be a key case in summary judgment motions for years to come with the argument that if plaintiff set the ladder and it later shifted, that argument should go to the jury on the issue of whether the sole proximate cause defense should apply, or at least, argued to the jury.
 
The Court of Appeals also rejected plaintiff’s argument to overturn the 2018 Fourth Department’s order on the grounds that it did not “necessarily affect the final judgment”.  In effect, because the case had been remanded for trial on the issue of fact, the decision did not resolve the case or resolve that particular issue. The question of whether plaintiff was the sole proximate cause of the fall because of his placement of the ladder was litigated before the jury which then rendered its verdict. The trial court did not disturb the jury’s verdict and the Fourth Department affirmed the trial court’s order. 
 

(MAS) PRACTICE POINT:Watch this case for cites in future summary judgment motions with the argument that the sole proximate cause defense is established by plaintiff’s failure to check the ladder or to set the ladder himself. Plaintiff also tried unsuccessfully to use the Fourth Department’s 2020 order affirming the jury’s verdict to also appeal the 2018 order denying him partial summary judgment. However, the 2018 order could only be reviewed on appeal, pursuant to CPLR § 5501(a), if the nonfinal order “necessarily affects” the final judgment. To determine whether a nonfinal order “necessarily affects” the final judgment, in cases where the prior order “str[uck] at the foundation on which the final judgment was predicated”, the Court’s inquiry is whether “reversal would inescapably have led to vacatur of the judgment”. Here, the nonfinal order did not remove any issues from the case and thus, the 2018 order did not necessarily affect the final judgment.
 
 
 
Plaintiff was tasked with moving sinks from one area of a bathroom to another. His work required him to cut and reroute pipes in the ceiling that were located near electrical wiring. To reach the pipes, he used an A-frame ladder, except he could only lean it against the wall in the closed and unlocked position due to spatial limitations. He was attempting to connect two pipes while standing on the ladder, when he was knocked off the ladder because his hand touched a live wire, he received an electrical shock, and fell.
 
Plaintiff does not remember anything about his fall, including whether he lost consciousness, whether the ladder fell to the ground, or whether he was thrown from the ladder after being electrocuted. Plaintiff’s expert opined that had the ladder been supported or secured to the floor or wall by anchoring, it would have remained stable when plaintiff was shocked. Plaintiff’s expert further opined that given the nature of plaintiff’s work, which involved cutting pipes and the use of hand tools at an elevated height, plaintiff should have been furnished with a more stable device, such as a Baker scaffold or man lift. The defense did not submit any expert proof.
 
The trial court denied plaintiff’s motion for partial summary judgment on liability under Labor Law § 240(1). The First Department reversed the trial court and granted the motion, finding that the “safety device” provided to plaintiff was an unsecured and unsupported A-frame ladder that was inadequate to perform the assigned task. The two-Justice dissent would preclude recovery to plaintiff, based on Nazario v 222 Broadway, LLC, 28 NY3d 1054 (2016), because of the absence of any evidence that the ladder was defective or that other particular safety devices would have prevented the accident.
 

Labor Law § 240(1) (MAS)
The Court of Appeals reversed the First Department’s order and denied plaintiff’s motion, finding that questions of fact exist as to whether “the ladder failed to provide proper protection,” whether “plaintiff should have been provided with additional safety devices,” and whether the ladder’s purported inadequacy or the absence of additional safety devices was a proximate cause of plaintiff’s accident (see Nacario v 222 Broadway, LLC, 28 NY3d at 1055).
 
Judge Wilson’s dissent would affirm the First Department’s order and grant plaintiff’s motion because plaintiff was provided with an inadequate ladder for his job, and the inadequate ladder was a proximate cause of his fall-related injuries. According to Judge Wilson’s dissent, the electric shock is a red herring as it does not negate liability for defendant’s alleged failure to furnish the protection required by statute. Thus, even though the electric shock was the precipitating event of plaintiff’s fall, it was not the sole proximate cause.
 
PRACTICE POINT: We took this exact same position in a Fourth Department case with nearly identical facts in Jones v Nazareth Coll. of Rochester, 147 AD3d 1365 (4th Dept 2017). If you are a subscriber since 2017, then hopefully you will recall the Fourth Department’s finding in that case that “there are questions of fact … whether … the ladder, which was not shown to be defective in any way, failed to provide proper protection, and whether … plaintiff should have been provided with additional safety devices.” More than five years later, the Court of Appeals confirmed the Fourth Department’s position that where the injured worker falls due an electrical shock from a non-defective ladder that he or she set up and used in the closed and unlocked position, then it is not a slam-dunk 240(1) summary judgment case for the injured worker.
 
 
Healy v EST Downtown, LLC
April 28, 2022
Court of Appeals
 
Plaintiff is a maintenance and repair technician employed by the building’s property manager. The building’s maintenance staff, of which plaintiff was a member, was separate from its janitorial staff. Plaintiff's regular duties included making the building’s rental properties ready for incoming tenants by repairing fixtures and painting. Additionally, he was tasked with responding to work orders generated by his employer in response to defendant’s requests for repairs.
 
On the day of his accident, plaintiff responded to a “[p]est [c]ontrol” work order filed by one of the building’s commercial tenants. Specifically, the work order complained that birds were depositing excrement from a nest that was lodged in one of the building’s gutters located above the tenant’s entryway. Plaintiff was allegedly injured when, while attempting to remove the bird’s nest, he fell from an unsecured eight-foot ladder that moved when a bird suddenly flew out of the nest. The trial court and the Fourth Department both granted plaintiff’s motion for summary judgment on the § 240(1) claim and denied defendant’s summary judgment motion seeking dismissal of that claim.
 

Labor Law § 240(1) (EDA)
The Court of Appeals reversed the Fourth Department’s order awarding summary judgment to plaintiff, finding that he did not qualify as an appropriate Labor Law plaintiff because he was not performing “cleaning,” one of the enumerated tasks that affords workers protection under the statute. The Court reiterated the four Soto factors used to determine what constitutes “cleaning” under the statue. “an activity cannot be characterized as “cleaning” under the statute, if the task: (1) is routine, in the sense that it is the type of job that occurs on a daily, weekly or other relatively-frequent and recurring basis as part of the ordinary maintenance and care of commercial premises; (2) requires neither specialized equipment or expertise, nor the unusual deployment of labor; (3) generally involves insignificant elevation risks comparable to those inherent in typical domestic or household cleaning; and (4) in light of the core purpose of Labor Law § 240(1) to protect construction workers, is unrelated to any ongoing construction, renovation, painting, alteration or repair project” (see Soto v J. Crew Inc., 21 NY3d 562 [2013]). The Court held that plaintiff’s activity here did not satisfy the first Soto factor and found that plaintiff’s work was “routine” in nature and not a covered activity under the statute. 
 
PRACTICE POINT: The Court of Appeals scrutinized whether plaintiff's activity was “cleaning” or maintenance, much the same as the analysis between routine maintenance and “repair.” Routine maintenance involves replacing components that require replacement in the course of normal wear and tear (see Esposito v New York City Indus. Dev. Agency, 1 NY3d 526, 528 [2003]). As we always stress in our presentations and webinars (which we enjoy sharing upon request), there is a simple formula we use for every Labor Law case: (Statutory defendant) X (covered project) X (protected worker) X (covered event) = Liability.  If any element is missing, then there is no liability under the statute. Here, plaintiff was simply not performing a covered activity under the statute, so there is no § 240(1) liability.
 
 
Padilla v Touro Coll. Univ. Sys.
April 5, 2022
Appellate Division, First Department
 
Plaintiff, a security system installer employed by T.R. Joy, was allegedly injured while working at Touro’s property. When plaintiff attempted to move a stack of sheetrock boards leaning against a wall that were purportedly pinching security system wires, the sheetrock boards fell on him. The trial court denied T.R. Joy’s motion for summary judgment dismissing the contractual and common-law indemnification and contribution claims against it and denied Touro’s motion for summary judgment dismissing the complaint and all crossclaims as against it. 
 

Labor Law § 240(1) (MAS)
Although the sheetrock that fell on plaintiff was located on the same floor as he and was not being hoisted or secured, the First Department found issues of fact as to whether § 240(1) applies to this case because it could not be determined on this record whether plaintiff’s injuries were proximately caused by the lack of a safety device of the kind required by the statute. A jury is required to determine whether plaintiff’s own conduct (i.e., disregarding his supervisor’s instructions not to move the stacked sheetrock), rather than any violation of Labor Law § 240(1), was the sole proximate cause of his accident.
 
PRACTICE POINT: For an injured worker to demonstrate entitlement to summary judgment under Labor Law § 240(1), he or she must establish that there was a violation of the statute, which was a proximate cause of the worker’s injuries. However, if adequate safety devices or instructions are provided and the worker either chooses not to use or misuses them, then liability under the statute does not attach. Here, as in Wilinski, there is a “potential casual connection between the object’s inadequately regulated descent and plaintiff’s injury” such that summary judgment in favor of the defense was not warranted.
 

Labor Law § 241(6) (TPW)
The First Department held issues of fact preclude summary judgment dismissing the Labor Law § 241(6) claim predicated on an alleged violation of Industrial Code (12 NYCRR) § 23-2.1[a][1] considering questions as to whether the sheetrock boards were stored in a “safe and orderly manner” as required by the subsection. Further, the Court found an issue of fact also exists as to whether the accident occurred in the requisite “passageway, walkway, stairway or other thoroughfare” in violation of § 23-2.1[a][1].
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department held that Touro failed to establish that it neither created nor had notice of the allegedly dangerous condition of the work site. It submitted no evidence as to who left the sheetrock against the wall or the last time the site was inspected. The Court also noted that there is evidence the sheetrock was already leaning against the wall when plaintiff arrived at the site.
 

Indemnity Issues in Labor Law (BFM)
The First Department refused to dismiss Touro’s claim against T.R. Joy for contractual indemnification due to issues of fact as to Touro’s negligence. Further, and as conceded by Touro, the Court held that Touro’s claims against T.R. Joy for common-law indemnification and contribution should be dismissed because plaintiff did not sustain a “grave” injury.
 
 
Rooney v D.P. Consulting Corp.
April 5, 2022
Appellate Division, First Department
 
Plaintiff and a coworker lowered a building’s freight elevator into the basement to allow plaintiff to perform work on top of the elevator. Plaintiff spent about 40 minutes performing that workwhich involved making changes to the elevator in order to prevent people from accessing a first-floor renovation site by means of the elevator’s rear door. The elevator’s front door opened onto an outdoor area. After performing this task, plaintiff claims that he tripped on a wooden ramp, which led from a loading dock to the elevator, and fell.
 
The trial court granted the motions of DP, Skig, 151 Hudson Street, Andrews Building, and Edge for summary judgment dismissing the Labor Law § 240(1) claim and so much of the Labor Law § 241(6) claim as predicated on alleged violations of Industrial Code (12 NYCRR) §§ 23-1.7(b)(1)(i), 23-1.15(a), and 23-1.18(c), and denied Edge’s motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims and DP’s common-law indemnification and contribution cross claims against it. 
 

Labor Law § 240(1) (MAS)
The First Department unanimously reversed and held the trial court should not have found that plaintiff's work was routine maintenance because the evidence established that plaintiff’s elevator work, performed in the context of a renovation project, was covered by Labor Law §§ 240(1) and 241(6). To prevent the elevator’s rear door from providing access to the renovation site, plaintiff was required to remove an elevator door lock and call button and rewire the elevator. Another worker sealed the elevator door shut using sheetrock and other materials. Therefore, plaintiff was engaged in “altering” the premises under the statute since his work was intended to secure the premises in preparation for the renovation project. Defendants failed to establish that plaintiff’s alleged conduct, such as tripping and falling, or leaning against a wooden barricade, was the sole proximate cause of his accident, rather than comparative negligence, which is not a defense to a Labor Law § 240(1) claim.
 
PRACTICE POINT: "Altering” or an “alteration” under the statute “requires making a significant physical change to the configuration or composition of the building or structure, and this definition does not include routine maintenance or decorative modifications, which are not covered activities. Here, plaintiff’s work constituted altering and not routine maintenance.
 

Labor Law § 241(6) (TPW)
The First Department reinstated the Labor Law § 241(6) claim insofar as it was based on alleged violations of Industrial Code §§ 23-1.7(b)(1)(i) and 23-1.15(a), finding issues of fact as to whether plaintiff’s accident was proximately caused by the lack of a compliant “safety railing” guarding the “hazardous opening” because of the undisputed testimony that the opening was not “guarded by a substantial cover fastened in place.” For their part, defendants established that Industrial Code § 23-1.18(c)(1) was inapplicable since no “building or other structure” was “to be constructed or demolished.”
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department reversed the trial court as there are issues of fact as to whether Edge is liable as a statutory agent. Although no documentary evidence of Edge’s subcontract with DP was submitted, there is testimonial evidence that the subcontract made Edge responsible for performing all aspects of the sidewalk excavation, including safety procedures. Moreover, there are issues of fact as to whether Edge created or had notice of the dangerous condition that caused plaintiff’s fall into the excavation hole.
 

Indemnity Issues in Labor Law (BFM)
Considering the issues of Edge’s negligence remain, the trial court properly declined to dismiss DP’s common-law indemnification and contribution crossclaims against Edge.
 
 
Lewis v 96 Wythe Acquisition LLC
April 12, 2022
Appellate Division, First Department
 
Plaintiff, an employee of All Island, allegedly was injured when he was struck on the toes by a metal beam that fell when a coworker moved a cart upon which a number of beams were stacked. However, shortly after the incident, plaintiff met with All Island project manager Joseph Kenney and told him that he “he was loading the beams on a barella [cart] and he let one of them slip and it fell on his toe.” 96 Wythe owned the property where the construction work was taking place, and Dimyon was the general contractor involved with the project. The trial court granted plaintiff’s motion for summary judgment on his Labor Law §§ 240(1), 200, and common-law negligence claims and denied 96 Wythe’s and Dimyon’s motion for summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims as against them, for contractual indemnification from All Island and dismissing All Island’s crossclaims. 
 

Labor Law § 240(1) (MAS)
The First Department reversed and held the trial court should have denied plaintiff’s motion because plaintiff’s version given to All Island’s project manager is inconsistent with his deposition version of how the accident happened and gives rise to an issue of fact as to whether plaintiff’s accident was caused by a failure of a safety device within the purview of § 240(1).
 
PRACTICE POINT: Where a plaintiff is the sole witness to an accident but provide two inconsistent versions of how the accident happened, an issue of fact may exist as to whether a violation of Labor Law § 240(1) was a proximate cause of plaintiff’s injury.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department held the trial court should also have denied plaintiff’s motion with respect to the Labor Law § 200 and common-law negligence claims based on the contradictory accounts of the accident.
 

Indemnity Issues in Labor Law (BFM)
The First Department modified the trial court’s order, holding that in light of the pending issues of fact as to defendants’ negligence, summary judgment on the contractual indemnification claim against All Island must be granted conditionally rather than unconditionally.
 
 
Ingrati v Avalonbay Communities, Inc.
April 14, 2022
Appellate Division, First Department
 
Plaintiff injured his right leg, at a construction site owned and operated by Avalonbay. Plaintiff performed concrete work that was being undertaken at the premises and had the responsibility of ensuring that the concrete was poured properly. After the pour was over, plaintiff had to remove the discharge line for the concrete by pulling it from the building using a rope. As he was engaged in this task, plaintiff tripped over construction debris, including broken up concrete and bricks left over from prior demolition work. The trial court denied plaintiffs’ motion for summary judgment on the Labor Law §§ 241(6), 200, and common-law negligence claims and granted defendant’s cross-motion for summary judgment dismissing the § 241(6) claim. 
 

Labor Law § 241(6) (TPW)
The First Department unanimously modified the trial court’s order and reinstated the Labor Law § 241(6) claim insofar as predicated on an alleged violation of Industrial Code § 23-1.7(e)(2). Specifically, photographs and deposition testimony established broken concrete and brick, as well as lighter-colored dried concrete pieces, in the same area on the sidewalk where plaintiff slipped or tripped. Further, the sidewalk area outside the front of the building under construction was shown to be a “working area” where cement trucks parked to deliver cement for the foundation and the upper floors of the building. Likewise, defendant’s evidence raised triable issues of fact as to whether the lighter-colored dried concrete pieces on the sidewalk were an integral part of the new construction work being performed on the building. As such, triable issues precluded partial summary judgment on the § 241(6) claim.
 
Labor Law § 200 and Common-Law Negligence (ESB)
Defendant’s evidence also raised triable issues of fact as to whether the sidewalk condition on which plaintiff tripped or slipped was inherently dangerous, which precluded summary judgment in favor of plaintiff under Labor Law § 200 and common-law negligence.
 
 
Peters v Structure Tone, Inc.
April 14, 2022
Appellate Division, First Department
 
Plaintiff was injured while building a platform in a shaft on the 10th floor at a building owned by MI NY and at which Structure Tone was serving as the construction manager. As the platform was nearly complete, he heard something, looked up, and was struck in the eye by “[s]mall bits of concrete, chunks of concrete,” like the size of pebbles. A CAT scan found metal in plaintiff’s right retina, and a “jagged intraocular foreign body” about five millimeters long was extracted during surgery. Since then, plaintiff allegedly suffered from retinal detachment and, it is expected and that he will not regain function in his right eye. Witnesses testified the debris came from the 11th floor, where another trade had been working. Plaintiff, who had been working in the shaft about six weeks before the accident testified “stuff used to rain down on” him while he worked in the shaft, although he did not complain until a “chunk of concrete hit” him in the back. The trial court granted plaintiff’s summary judgment motion on the Labor Law § 240(1) claim and the § 241(6) claim insofar as predicated on Industrial Code (12 NYCRR) §§ 23-1.7(a)(1) and 23-2.5(a)(1) and denied defendants' motion for summary judgment dismissing those claims. 
 

Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court and denied plaintiff’s motion as neither party was entitled to summary judgment under Labor Law § 240(1). There are issues of fact as to whether the debris that fell on plaintiff – taking into account the elevation differential, the debris’ weight and the amount of force it could generate – was “a load that required securing for purposes of the undertaking at the time it fell, and whether his injury is a direct consequence of defendants’ “failure to provide adequate protection against a risk arising from a physically significant elevation differential.”
 
The trier of fact could find that the elevation differential between plaintiff and the level from which the debris fell was de minimis, that the debris’ weight was inconsequential or that the debris could not have generated any meaningful amount of force and determine that plaintiff’s “injuries were the result of [a] usual and ordinary danger [] at a construction site.” “However, the trier of fact could determine that the elevation differential of at least one story was not de minimis, that the weight of the debris and the force it was capable of generating were significant, and that the debris should have been secured for the purposes of the undertaking. In either event, these issues preclude summary judgment.
 
PRACTICE POINT: Liability for “falling object” cases require an elevation-related task or an object that was “improperly hoisted or inadequately secured” or required securing to trigger strict liability under the statute. Here, plaintiff could not establish either one. Bonus tip: safety goggles and hard hats do not qualify as protective devices within the meaning of the statute.
 

Labor Law § 241(6) (TPW)
The First Department unanimously modified the trial court’s order and reinstated plaintiff's Labor Law § 241(6) claim predicated on Industrial Code §§ 23-1.7(a)(1) and 23-2.5(a)(1).  These regulations require, respectively, “suitable overhead protection” in places that are “normally exposed to falling material or objects” and that “[a] tight covering . . . be located at a point in the shaft not more than two stories or 30 feet, whichever is less, above the level where persons are working.” As to Industrial Code § 23-1.7(a)(1), although plaintiff testified to past instances in which objects fell on him while working in the shaft, the Court held an issue of fact remains as to whether the shaft was “normally exposed to falling material or objects” within the meaning of the regulation. As to Industrial Code § 23-2.5(a)(1), because a covering installed at the lesser of 30 feet or two stories above plaintiff may not have protected him against the falling debris, an issue of fact remains as to whether defendants' violation of the regulation was not unreasonable under the circumstances. 
 
 
Grigoryan v 108 Chambers St. Owner, LLC
April 21, 2022
Appellate Division, First Department
 
Plaintiff was allegedly injured when he and two coworkers were assigned to run conduits along the wall and ceiling of an 8 by 10-foot fire pump room. As they were looking at the wall and ceiling and deciding how to proceed, a 3-to-4 foot tall, 300-500+ pound fire pump, which had been standing upright on the floor, on its narrower end and unsecured, fell on his leg. The trial court denied plaintiffs’ motion for summary judgment under Labor Law § 240(1).
 

Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court and granted plaintiff’s motion because the safety device either proved inadequate to shield against injury resulting from the application of the force of gravity to a person or object or no safety devices was provided to shield against such injury. Where, as here, a load positioned on the same level as the injured worker falls a short distance, Labor Law § 240(1) applies if the load, due to its weight, is capable of generating significant force. Here, the fire pump was required to be secured against tripping or falling and the failure to secure it was a violation of the statute.
 
PRACTICE POINT: Considering the weight of the fire pump and the amount of force it was able to generate, even if falling a relatively short distance, plaintiff’s injury resulted from a failure to provide protection required by the statute against a risk arising from a significant elevation differential. Moving the fire pump required either hoisting equipment or a device designed to secure the fire pump against tipping or falling over. Since no such equipment was provided, summary judgment was properly awarded to plaintiff.
 
 
Laporta v PPC Commercial, LLC
April 21, 2022
Appellate Division, First Department
 
Plaintiff and his coworkers were retrofitting light fixtures in a building owned by PPC when an unstable eight-foot A-frame ladder, which was missing rubber feet, shifted, causing him to fall.  The trial court denied plaintiff's motion for summary judgment under Labor Law § 240(1).
 

Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court and granted plaintiff’s motion. Plaintiff established that PPC is liable through plaintiff and coworker’s affidavits stating the unstable eight-foot A-frame ladder, which was missing rubber feet, shifted, causing him to fall. It was undisputed that PPC owned the property. Plaintiff also established that his work of retrofitting light fixtures was covered under § 240(1) and did not constitute routine maintenance. The Court rejected PPC’s argument that the motion was premature because PPC failed to show that discovery might lead to facts that would support its opposition to the motion. PPC also failed to show that facts essential to its opposition were within plaintiff’s exclusive knowledge.
 
PRACTICE POINT: “The mere hope that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny such a motion.” Watch out because we are seeing courts routinely granting summary judgment to the injured worker, despite depositions not occurring and discovery has not yet been completed.
 
 
Villanueva v O'Mara Org., Inc.
April 21, 2022
Appellate Division, First Department
 
Plaintiff was allegedly injured while working as a freight elevator operator for nonparty Macklowe at premises owned by 311 and managed by Macklowe. Previously, Macklowe, as 311’s agent, had contracted with O’Mara to serve as the general contractor for a construction project occurring on either the tenth or eleventh floor of the premises. O’Mara, in turn, subcontracted with Armor to perform the electrical work on the project. Materials were brought via the freight elevator. Thus, plaintiff’s role was to bring workers and materials between the ground floor and the work site. The accident occurred when an Armor employee stacked an unbundled group of EMTs against the wall next to the freight elevator on the ground floor. As plaintiff was exiting the elevator on the ground floor, one of the EMTs toppled hitting him in the head. The trial court granted plaintiff’s motion for partial summary judgment on the common-law negligence claim against O'Mara and Armor. 
 
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed summary judgment against Armor, which caused and created the dangerous condition that injured plaintiff. However, the Court modified the trial court’s order by denying plaintiff’s motion against O’Mara because plaintiff’s injuries arose not from the manner in which the work was being performed, but rather, from an allegedly dangerous condition on the property, namely the improper stacking of the EMTs against the wall. Moreover, plaintiff failed to establish that O’Mara had either actual or constructive notice of the allegedly dangerous condition. Rather than presenting evidence on notice, plaintiff speculates that O’Mara was on constructive notice because it knew, or should have known, that materials (i.e., EMTs) would have been placed by the elevator as they awaited transport.
 
 
Murphy v Schimenti Constr. Co., LLC
April 26, 2022
Appellate Division, First Department
 
Plaintiff was on a ladder installing sheet rock at the entrance to a Victoria’s Secret store at a mall. Plaintiff stepped off the ladder, stepped backward, and tripped over Masonite boards laid on the floor as a temporary protective covering. Plaintiff sued the general contractor, Schimenti which brought a third-party action against plaintiff’s employer, subcontractor Dame. The trial court denied Dame’s motion for leave to file a late motion for summary judgment dismissing plaintiff's Labor Law §§ 240(1) and 241(6) claims and the third-party complaint.
 

Labor Law § 240(1) (MAS)
The First Department reversed the trial court and granted the motion to dismiss this claim because plaintiff offered no opposition on appeal to Dane’s argument for dismissal of this claim. Therefore, the Court deemed the Labor Law § 240(1) claim abandoned.
 
PRACTICE POINT: The general rule is that if a party does not raise an issue in the party’s appellate brief, then that issue is deemed abandoned. If you file an appeal, it is a good idea to submit papers setting forth your specific arguments on appeal as to the claim or else you risk the court deeming your appeal abandoned.
 

Labor Law § 241(6) (TPW)
The First Department unanimously modified the trial court’s order as applied to Labor Law § 241(6).  First, plaintiff did not oppose the underlying motion and offered no opposition on appeal on the Labor Law § 241(6) claim predicated on Industrial Code 12 NYCRR 23-1.7(e)(1) therefore that claim is deemed abandoned. However, the Court found a question of fact precluded dismissal of § 23-1.7(e)(2) as to whether the use of Masonite as floor protection was an integral part of the injury-producing work, which is not actionable under Labor Law.
 
 
Luna v Brodcom W. Dev. Co. LLC
April 28, 2022
Appellate Division, First Department
 
Decedent, an elevator mechanic, entered an elevator shaft on the lobby level, under an elevator that he had sent to one of the floors above. After the shaft doors closed, the call button was pressed, and the elevator descended to the lobby, crushing him. The parties agree that the elevator was working normally, in the “automatic” setting, at the time of the accident. The trial court denied defendants’ motion for summary judgment dismissing the Labor Law § 240(1) claim, denied plaintiff’s motion for summary judgment on that claim, and denied third-party defendant’s motion for summary judgment dismissing the third-party claims for contractual indemnification, common-law indemnification, and common-law contribution. 
 

Labor Law § 240(1) (MAS)
The First Department unanimously modified by the trial court’s order and granted defendants’ motion because the elevator did not “fall” as a result of the force of gravity but descended in automatic mode, as it was designed to do.
 
PRACTICE POINT: The applicability of the statute in “falling object” cases depends on whether the harm flows directly from the application of the force of gravity to the object. Here, there is no such harm when the elevator is working normally. However, if the elevator is not working properly, then working on the elevator could be a protected activity if it involved “repair” work as opposed to routine maintenance.
 

Indemnity Issues in Labor Law (BFM)
In dismissing the complaint, the First Department held that since all claims against defendants must be dismissed, there can be no finding of liability against third-party defendant.  Thus, it dismissed the third-party complaint.  It does not appear that the Court addressed any defense costs related to the contractual indemnification claim.
 
 
Tishman Constr. Corp. v Zurich Am. Ins. Co.
April 28, 2022
Appellate Division, First Department
 
Plaintiff in the underlying action was injured when he fell into a hole while at the premises during a delivery. He backed the truck he was driving into the building’s interior loading dock where it was offloaded. Hanging down in front of the building entrance through which he had backed the truck were wind flaps and a plastic sheet or curtain that were 10 to 30 feet away from the front of the truck parked at the loading dock. The wind flaps/curtain had to be raised from the outside of the building for the truck to enter and exit. After the truck had been offloaded and materials he was taking back had been reloaded onto the truck, he walked from the loading dock to make sure the driveway was clear to exit and raise the curtain. He had not yet checked the rear of the truck to make sure nothing was loose before departing. A plate covering a hole in the ground outside the building shifted and he fell in. While there were “normal” artificial light conditions inside the building, it was still dark outside, with only “minimal” lighting.
 
The trial court denied Old Republic’s motion to compel, and granted ICSOP’s motion to dismiss the third-party complaint, denied Old Republic’s motion for summary judgment declaring that it is not required to defend or indemnify plaintiffs in the underlying action, granted plaintiffs' cross-motion for summary judgment against Old Republic, and declared Old Republic has a duty to defend plaintiffs in the underlying action and that ICSOP does not have a duty to defend or indemnify plaintiffs in the underlying action, and granted Zurich’s cross-motion for summary judgment dismissing the first and second claims against it and declared that Zurich has no duty to defend plaintiffs in the underlying action.
 

Indemnity Issues in Labor Law (BFM)
The First Department determined the underlying plaintiff’s injury did not arise out of the “use” of the truck or its loading or unloading. The Court found that the injury was caused by a defective premises condition, rather than any act or omission related to the use of the automobile. Accordingly, the Court held that Old Republic, the auto carrier for plaintiff’s employer, Port Morris, was not required to defend or indemnify plaintiffs in the underlying action, and Zurich, the general liability carrier for Five Star, was not entitled to a declaration that it had no duty to defend plaintiffs in the underlying action.
 
 
Valverde v Occam Suy LLC
April 28, 2022
Appellate Division, First Department
 
Plaintiff claimed to have been injured after being struck on the head by falling debris. It was undisputed that plaintiff’s claim for Workers Compensation benefits was denied following a two-day adversarial hearing based on the finding of the Workers Compensation Law Judge that plaintiff’s alleged injuries did not occur as a result of a work-related accident. The determination was affirmed by a three-judge administrative panel. The trial court granted defendants’ motion for summary judgment dismissing the complaint after allowing them to amend their answer to assert that plaintiff’s action is thereby precluded by the Workers’ Compensation Law.
 

Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s order based on the doctrine of collateral estoppel. Defendants established that the issue resolved at the Workers’ Compensation hearing, i.e., that plaintiff did not sustain a work-related injury, or the accident did not occur as described, was identical to that presented in this Labor Law and negligence action seeking damages for personal injuries. The finding that no accident occurred as testified to by plaintiff is material and, in fact, pivotal, to the core viability of any personal injury action that plaintiff could pursue in court at law regarding the same incident. Plaintiff failed to satisfy his burden of raising an issue of fact regarding whether he was afforded a full and fair opportunity to litigate the issue at the Workers’ Compensation hearing.
 
PRACTICE POINT: The doctrine of collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and against that party or those in privity, whether or not the tribunals or claims are the same. The doctrine applies when: (1) the issues in both proceedings are identical; (2) the issue in the prior proceeding was actually litigated and decided; (3) there was a full and fair opportunity to litigate in the prior proceeding; and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits. In this case, all four elements were present, so the doctrine applied and resulted in dismissal of plaintiff’s case.
 
 
Londono v Dalen, LLC
April 6, 2022
Appellate Division, Second Department
 
Plaintiff was allegedly injured during the course of performing drywall finishing work at Dalen’s property and leased to BAM. BAM was in the process of renovating the leased premises, and it is undisputed that BAM hired A & L, to perform work on the renovation job. At the time of the accident, plaintiff was employed by nonparty Par Wall. The trial court denied A & L’s motion for summary judgment dismissing the amended complaint and all crossclaims against it.
 

Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s order, given the conflicting evidence in support of A & L’s motion, A & L failed to eliminate all triable issues of fact, including whether A & L was the general contractor responsible for plaintiff’s injuries under the statute.
 
PRACTICE POINT: A contractor is subject to liability under Labor Law §§ 240(1) and 241(6) where the contractor is “responsible for coordinating and supervising the entire construction project and [is] invested with a concomitant power to enforce safety standards and to hire responsible contractors.” Here, A & L could not meet its burden on motion practice of demonstrating that it was not the general contractor with the ability to hire contractors and enforce compliance with safety standards.
 
Labor Law § 200 and Common-Law Negligence (ESB)
Where, as here, plaintiff’s injuries arise from the manner in which the work is performed, “there is no liability under the common-law or Labor Law § 200 unless the owner or general contractor exercised supervision or control over the work performed.”
 
 
Lazo v New York State Thruway Auth.
April 13, 2022
Appellate Division, Second Department
 
Claimant was allegedly injured while working on construction of the Cuomo Bridge. NYSTA owns the bridge and hired nonparty TZC, claimant’s employer, as the general contractor for the project. On the day of his accident, claimant was working inside a “jump box,” which is an enclosed workspace for the workers to make forms to hold wet concrete that was to be poured into them to build the towers of the bridge. To complete his work, claimant would move across a 17-foot-long, 8-inch-wide beam suspended along the interior of the jump box 8 feet above a platform within the jump box. To facilitate safe movement across the beam, TZC provided claimant with a full-body harness that was equipped with two safety lines. He used a hook at the end of each safety line to secure it to various anchorage points on another horizontal beam located above him. To move across the beam, workers were instructed to unhook the first safety line from the first anchorage point, connect it to a second anchorage point, and then repeat this process with the second safety line. This allowed workers to move along the beam while always having at least one safety line attached to an anchorage point.
 
Claimant was in the process of transferring these safety lines between anchorage points when he lost his footing and fell to the platform below. In the moments before his fall, he removed the first safety line from the first anchorage point, but he fell before he could attach it to the second anchorage point. He did not know how the second safety line became detached or why it failed to prevent his fall. The Court of Claims denied claimant’s motion for summary judgment under Labor Law §§ 240(1) and 241(6) predicated on violations of Industrial Code §§ 23-1.7(b) and 23-1.16 against NYSTA and granted NYSTA’s motion for summary judgment dismissing that portion of the § 241(6) claim predicated on a violation 12 NYCRR 23-1.7(b).


Labor Law § 240(1) (MAS)
The Second Department reversed the Court of Claims and granted the motion because claimant’s deposition testimony established that his accident was within the purview of Labor Law § 240(1), since the beam from which he fell was being used as a functional equivalent of a scaffold The testimony also established that claimant’s second safety line was attached to an anchorage point but was nevertheless insufficient to prevent him from falling.
 
PRACTICE POINT: The beam was being utilized in the performance of claimant’s injury-producing work, and, under the circumstances of this case, served as the functional equivalent of a scaffold meant to prevent the worker from falling onto the platform 8 feet below. Courts, under such a scenario, will often determine that the injured worker’s injuries were the direct result of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.
 

Labor Law § 241(6) (TPW)
The Second Department affirmed that portion of the trial court’s order regarding the Labor Law § 241(6) claim predicated on a violation of Industrial Code § 23-1.7(b)(1) and (2). NYSTA’s motion was properly granted as NYSTA established that § 23-1.7(b)(1) was inapplicable to claimant’s accident and that no violation of § 23-1.7(b)(2) occurred. In opposition, the Court held that claimants failed to raise a triable issue of fact.
 
 
McNamara v Gusmar Enters., LLC
April 13, 2022
Appellate Division, Second Department
 
Plaintiff was allegedly injured when he fell from an A-frame ladder while making alterations to a fire sprinkler system in the ceiling of a store leased by Metal Monk, which was located inside a commercial building owned by Gusmar. The trial court (1) denied the motion of the Gusmar defendants for summary judgment dismissing the Labor Law § 240(1) claim and the Labor Law § 241(6) as predicated on an alleged violation of Industrial Code § 12 NYCRR 23-1.21(e)(3), and for summary judgment on their crossclaim for contractual indemnification against Metal Monk, and (2) granted the cross-motion of Metal Monk for summary judgment dismissing the §§ 240(1) and 241(6) claims against it; and (3) denied plaintiffs’ cross-motion for summary judgment on the § 240(1) claim against the Gusmar defendants; and (4) denied the cross-motion of Metal Monk for summary judgment dismissing the Labor Law § 200 claim against it and the crossclaim of the Gusmar defendants for contractual indemnification.
 

Labor Law § 240(1) (MAS)
The Second Department affirmed the denial of all motions because all parties failed to eliminate all triable issues of fact about the way the accident occurred, whether adequate safety devices were available at the work site, whether the absence of an adequate safety device was a proximate cause of the accident, and whether plaintiff’s actions were the sole proximate cause of his injuries.
 
PRACTICE POINT: This case reaffirms the rule that not every fall from a scaffold or ladder, in and of itself, results in automatic summary judgment to the injured worker. Remember, an injured worker must demonstrate that there was a violation of the statute and that said violation was a proximate cause of the worker’s injuries or else the worker is not entitled to summary judgment under Labor Law § 240(1).
 

Labor Law § 241(6) (TPW)
The Second Department affirmed that portion of the trial court’s order on the Labor Law § 241(6) claim. The Court noted that to establish liability under § 241(6), a plaintiff must demonstrate that his injuries were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the case. Here however, defendants’ submissions in support of that branch of their motion dismissing so much of the § 241(6) predicated on Industrial Code § 23-1.21(e)(3) failed to eliminate all triable issues of fact as to whether that regulation had been violated and whether any such violation was a proximate cause of the accident. 
 

Indemnity Issues in Labor Law (BFM)
The Second Department affirmed the trial court’s order denying the Gusmar defendants' crossclaim for contractual indemnification and Metal Monk’s cross-motion for summary judgment dismissing that crossclaim.
 
The subject lease required Metal Monk to indemnify Gusmar Enterprises for injuries to person or property which were either ”occasioned wholly or in part by any act or acts, omission or omissions“ of Metal Monk, its employees, and agents, among others, and ”for any matter or thing growing out of the occupation of the demised premises or of the streets, sidewalks or vaults adjacent thereto.“  The Court found that Metal Monk established that the accident did not grow out of its occupation of the premises, as the Gusmar defendants retained plaintiff’s employer to perform work on the sprinkler system throughout the building.
 
The Court ultimately held that the parties' submissions raised triable issues of fact as to whether the accident was occasioned by the acts of a Metal Monk employee and, and thus, whether the accident triggered the applicability of the indemnification clause in the lease. Lastly, the Court noted that the subject indemnification provision did not violate General Obligations Law § 5-321 as the Gusmar defendants established that the accident was not caused by any negligence on the part of the landlord, Gusmar Enterprises.
 
 
McNamara v Gusmar Enters., LLC
April 13, 2022
Appellate Division, Second Department
 
Same case, only the trial court, upon reargument, in effect, vacated so much of its prior order denying Metal Monk’s motion for summary judgment dismissing the Labor Law § 200 claim.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department dismissed the appeal by the Gusmar defendants, who were not aggrieved by that potion of the trial court’s order denying Metal Monk’s motion for summary judgment dismissing the Labor Law § 200 claim against it.
 
 
Nucci v County of Suffolk
April 13, 2022
Appellate Division, Second Department
 
The County of Suffolk acquired title to a one-family house in Copiague by tax deed for non-payment of real estate taxes. The Town of Babylon authorized an emergency board up of the house, which had no running water and was deemed a nuisance and imminent danger. Plaintiff’s employer, nonparty Cipco, directed him to the subject property, where his supervisor instructed him to board up the house. While plaintiff was boarding up a window on the second floor, a strong gust of wind allegedly caused the ladder on which he was standing to shift, and he fell. The trial court granted defendants’ separate motions for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims against each of them and denied plaintiff's cross-motion for summary judgment on the same claims.
 

Labor Law § 240(1) (MAS)
The Second Department modified the trial court’s order by affirming dismissal against the County but denying the Town’s motion. The County was entitled to the homeowners’ exemption. Unfortunately for the Town, although it argued that it was not a contractor on the project within the meaning of the statute, the Court held that plaintiff’s opposition raised a triable issue of fact as to the Town’s status as a contractor because it had the authority to choose the contractor who performed the work, entered into the contract with plaintiff’s employer, and representatives of the Town were present while plaintiff performed the injury-producing work.
 
The Court also held that plaintiff’s work of boarding up the house constituted “altering” the premises within the meaning of Labor Law § 240(1), as it constituted a significant physical change to the configuration or composition of the building.
 
PRACTICE POINT: The homeowner’s exemption to liability under Labor Law §§ 240(1) and 241(6) is available to “owners of one and two-family dwellings who contract for but do not direct or control the work” and who demonstrate that the property was intended to be used solely for residential purposes. Here, the County established that it owned the one-family residence where the injury-producing work was performed and that it did not direct or control the injury-producing work; therefore, it was entitled to the protections under the homeowners’ exemption.
 
 
Leighton v Chaber, LLC
April 20, 2022
Appellate Division, Second Department
 
Plaintiff was allegedly injured when he was struck in the eye by debris that purportedly emanated from a grinder tool at certain property owned by Chaber and leased to Starbucks. Starbucks retained plaintiff’s employer, nonparty Piece Management, to perform renovation work that included the relocation of a drive-through menu sign board. Specifically, plaintiff was present at the site on the date of the accident, in the course of his employment, to “terminate . . . low voltage wires” and to install a connector. The trial court, upon reargument, vacated a prior order denying the separate motions of Starbucks for summary judgment dismissing the Labor Law § 241(6) claim to the extent they were predicated upon a violation of Industrial Code (12 NYCRR) § 23-1.33.
 

Labor Law § 241(6) (TPW)
The Second Department affirmed that portion on the trial court’s granting defendants’ summary judgment motions as to the Labor Law § 241(6) claim predicated on a violation of Industrial Code § 23-1.33. Defendants established their entitlement to judgment as a matter of law dismissing 12 NYCRR § 23-1.33 as that section does not apply to workers on a construction site, but rather to “persons passing by construction.”
 
 
Ortega v Panther Siding & Windows, Inc.
April 20, 2022
Appellate Division, Second Department
 
Plaintiff allegedly was injured when he fell from a roof on residential property while working as a foreman for Golden Hammer, a subcontractor for Panther Siding. The trial court granted Panther Siding’s motion for summary judgment dismissing the Labor Law § 240(1) claim.
 

Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s order because Panther Siding established that it was not the general contractor or agent of the owner on any project in the vicinity on the day of plaintiff’s accident.
 
PRACTICE POINT: A party is deemed to be an agent of an owner or general contractor under the Labor Law when he or she has supervisory control and authority over the work being done where a worker is injured. The determinative factor is whether the party had the right to exercise control over the injury-producing work, not whether it exercised that right (which matters for liability under § 200)In this case, Panther did not have the requisite authority to control the activity bringing about plaintiff’s injury to enable it to avoid or correct the unsafe condition and thus was not an appropriate Labor Law defendant.
 
 
Auriemma v Brooklyn Hosp. Ctr.
April 27, 2022
Appellate Division, Second Department
 
Plaintiff was allegedly injured when he fell from a truck as he was unloading mattresses at the Brooklyn Hospital Center. The trial court granted the Hospital’s motion for summary judgment and dismissed the complaint alleging Labor Law §§ 240(1), 241(6), and 200 claims.
 

Labor Law § 240(1) (MAS)
The Second Department affirmed dismissal of plaintiff’s complaint. “In order to invoke the protections afforded by the Labor Law and come within the special class for whose benefit liability is imposed upon contractors, owners, and their agents, a plaintiff must demonstrate that he [or she] was both permitted or suffered to work on a building and that he [or she] was hired by someone, be it owner, contractor or their agent.” Here, the Hospital established that plaintiff was not among the class of persons entitled to protection under Labor Law §§ 240(1), 241(6), and 200.
 
PRACTICE POINT: Have you memorized the four criteria of every Labor Law claim yet? Remember, you must have all four: (1) appropriate plaintiff; (2) appropriate defendant; (3) appropriate safety device; and (4) elevation-related/gravity-related risk. Here, the injured worker could not establish that he was an appropriate Labor Law plaintiff at the time of his incident.
 
 
Jurski v City of New York
April 27, 2022
Appellate Division, Second Department
 
Plaintiff, a roofer employed by nonparty Kel-Tech, sustained injuries when he fell from an extension ladder at a public high school in Queens, while renovating a bulkhead on the roof. The trial court granted plaintiff’s motion for summary judgment on the issue of liability under Labor Law § 240(1).
 

Labor Law § 240(1) (MAS)
The Second Department reversed the trial court and denied plaintiff’s motion because defendants raised a triable issue of fact as to whether the ladder shifted to the right and backwards, as plaintiff testified, or whether plaintiff’s own actions were the sole proximate cause of the accident. Defendants submitted an affidavit from plaintiff’s supervisor stating that plaintiff had told him, just after the accident occurred while he was still on the roof, that he had lost his balance as he descended the ladder and jumped off the ladder.
 
PRACTICE POINT: Feels like we say this every issue (and we constantly file opposition papers arguing) that differing versions of the accident given by plaintiff create triable issues of fact that require denial of motions for summary judgment, including a triable issue of fact as to plaintiff’s credibility, which can only be resolved by the trier of fact.
 
 
Pastier v C.A.C. Indus., Inc.
April 27, 2022
Appellate Division, Second Department
 
Plaintiff allegedly was injured at midnight, while walking on a grass-covered median between the main eastbound road and a service road of the Pelham Parkway in the Bronx, when he fell into a hole which he estimated to be two feet deep. Plaintiff, an electrician employed by nonparty Hellman, was at that location pursuant to an agreement between Hellman and the City of New York DOT to perform streetlight maintenance throughout the City. As of the date of the accident, various areas involving Pelham Parkway were undergoing reconstruction. The City of New York Department of Design and Construction retained CAC as the general contractor for the reconstruction project and hired Gibbons to provide engineering inspection services.
 
The trial court granted CAC’s and Gibbons’ summary judgment motion dismissing the complaint and denied plaintiff’s cross-motion for summary judgment on his Labor Law § 240(1) claim.
 

Labor Law § 240(1) (MAS)
The Second Department affirmed dismissal of this claim because defendants established that neither plaintiff nor his employer had been retained to perform any work pertaining to the reconstruction project involving the Pelham Parkway and, thus, plaintiff was not within the class of persons subject to the protections of the statute. Additionally, defendants established that they did not create or have actual or constructive notice of the allegedly dangerous condition that caused the accident by submitting proof that no excavation work or tree removal work had been performed in the area where plaintiff fell as of the date of his accident.
 
PRACTICE POINT: The Labor Law defines “employee” as “a mechanic, workingman or laborer working for another for hire,” and “employed” as “permitted or suffered to work.” Here, plaintiff could not prove that he or his employer were retained to perform any work involving the reconstruction project and he was not an appropriate Labor Law plaintiff.
 
 
Hawver v Steele
April 7, 2022
Appellate Division, Third Department
 
Plaintiff was allegedly injured when barn doors fell, striking him on the right shoulder and back while he was delivering sheetrock to defendants' property. Plaintiff was employed as a delivery driver, whose duties included unloading the contents of a delivery at a customer’s location. Plaintiff and his coworker entered the barn, spoke to several men who were installing sheetrock and moved the truck around to the side of the building where its double doors were situated. As plaintiff was preparing to unload the sheetrock, the doors, which were elevated and described by him as “big and heavy,” fell on him. At the time of the accident, the doors were being restored, and as such, were not on hinges and were secured only by wooden wedges.
 
Defendant, a professional musician and university professor, was renovating the barn to provide a “raw workspace” comprising of a music studio and photography workspace for his wife. Defendant learned after-the-fact of plaintiff’s accident from his sheetrock contractor, who said the doors had fallen after being knocked by one of the workers. The trial court granted defendants’ motion for summary judgment dismissing the Labor Law §§ 240(1), 241(6), and 200 claims, finding defendants are entitled to the homeowners’ exemption and that the barn doors were not inherently dangerous.
 

Labor Law § 240(1) (MAS)
The Third Department reversed the trial court and found triable issues of fact as to whether the property was being used for commercial purposes at the time of plaintiff’s accident. Defendants, as the parties seeking the benefit of the statutory exemption, had the burden of establishing that the property was not being used solely for commercial purposes. Defendant’s testimony established that he is a professional musician and that the structure was being altered to use as a music studio and a photographs workspace, yet he submitted no proof whether he intended to use the structure for commercial or noncommercial purposes. Defendant also failed to address whether plaintiff’s injuries arose from a physically significant elevation differential, as there is no indication of plaintiff’s height, the weight of the doors, how far the door fell, or the amount of force that the doors generated when falling.
 
PRACTICE POINT: Burden of proof is very important to the Labor Law team, as revealed by this 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, as the moving party, of establishing their entitled to the homeowners’ exemption.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department reversed the trial court and denied defendants’ motion, finding disputable issues of fact as to whether the unhinged barn doors fell as a result of the actions of an intervening third-party, which may have constituted a dangerous condition, and whether the use of the wooden wedges was sufficient to guard against the barn doors falling. Defendant admitted that he had been advised not to use the doors by the contractor responsible for restoring them and that, at some point during construction, the contractor posted a note on the interior of the door advising him to do so.
 
 
Finocchi v Live Nation Inc.
April 22, 2022
Appellate Division, Fourth Department
 
Plaintiff was allegedly injured when he was loading boxes of rigging equipment into a truck following a concert. After the Fourth Department determined on a prior appeal that there were triable issues of fact precluding summary judgment in defendants’ favor on the Labor Law § 240 (1) claim, the matter proceeded to a nonjury trial. Following that trial, the trial court dismissed the complaint on the ground that plaintiff’s failure to use an appropriate safety device, i.e., a forklift, was the sole proximate cause of his injuries.
 

Labor Law § 240(1) (MAS)
The Fourth Department reversed the trial court and reinstated plaintiff’s claim because although defendants established that there was an available safety device, i.e., a forklift, and that plaintiff knew that it was available and that he was expected to use it, plaintiffs established that the stage manner instructed plaintiff and his coworkers to lift the box manually. Regardless of whether the stage manager was plaintiff’s actual supervisor, plaintiff was under no obligation to demand safer methods for moving the box. To expect plaintiff to refuse the stage manager’s demands “overlooks the realities of construction work.”
 
PRACTICE POINT: To establish a sole proximate cause defense, a defendant must demonstrate that (1) plaintiff had adequate safety devices available; (2) plaintiff knew both that they were available and that he or she was expected to use them; (3) that plaintiff chose for no good reason not to do so; and (4) had plaintiff not made that choice, then he or she would not have been injured. Here, defendants could not establish the third element and thus they were not entitled to summary judgment on the sole proximate cause defense.
 
 
Lagares v Carrier Term. Servs., Inc.
April 22, 2022
Appellate Division, Fourth Department
 
Plaintiff, an employee of Sahlem, was allegedly injured when, while he was replacing the roof of a building owned by Carrier, the piece of metal decking on which he was standing slipped from its steel support beam, causing him to fall. Speed Motor was allegedly acting as an agent of Carrier with respect to the roof replacement. After the Fourth Department affirmed an order that granted plaintiffs’ motion for partial summary judgment on the issue of Carrier's liability under Labor Law § 240(1), the trial court thereafter granted Sahlem’s motion for leave to argue, and, upon reargument, adhered to its prior determination granting plaintiff’s motion and Carrier’s summary judgment on its claim for common-law indemnification against Sahlem. The trial court also granted Speed Motor’s motion seeking summary judgment on its common-law indemnity claim against Sahlem’s counterclaim and crossclaim against it.
 

Indemnity Issues in Labor Law (BFM)
The Fourth Department affirmed the trial court’s granting of the motions of Carrier and Speed Motor with respect to their common-law indemnification claims against Sahlem. The Court found that both Carrier and Speed Motor established that they did not create or have notice of the dangerous condition. The Court rejected Sahlem’s argument that Carrier and Speed Motor failed to establish that Sahlem was either negligent or failed to properly supervise plaintiff, pointing out that common-law indemnity may be imposed against those parties who exercise actual supervision over the injury-causing work. Here, Carrier and Speed Motor established that Sahlem exercised actual supervision over the injury-causing work. Finally, the Court modified  the trial court’s order by holding the trial court should have conditioned summary judgment on  the common-law indemnification claim to the payment of a judgment by the parties seeking indemnification.

 
 
 New York Industrial Code Regulations (EDA)
12 NYCRR 23-1.23(c) Earth ramps and runways constructed for use by motor trucks or heavier vehicles shall be at least 12 feet in width if used only for single lane traffic or shall be at least 24 feet in width if used for two lane traffic. Such ramps and runways shall be provided with timber curbing at least 10 inches by 10 inches full size securely pinned to the ramps or runways by steel rods, with beams at least two and one-half feet in height or with equivalent barriers along the sides. Regulation § 23–1.23(c) establishes standards for the construction of Earth ramps and runways used by trucks and heavier vehicles and though no case has specifically decided so, it likely sets forth specific standards sufficiently specific to support to support a § 241(6) cause of action.   Regulation § 23–1.23 mandates compliance with concrete specifications Demartino v CBS Auto Body and Towing, Inc., 208 AD2d 886, 888 [2d Dept 1994]
 
Supensky v State, 192 Misc 2d 233, 239 [Ct Cl 2002], judgment entered sub nom. James D. SUPENSKY, Claimant, v The State of New York., Defendant. [Ct Cl 2002], affd sub nom. Supensky v State, 2 AD3d 1436 [4th Dept 2003]

 
 
Labor Law Pointers
 
Editor
David R. Adams

Associate Editor
Eric S. Bernhardt

Associate Editor
Brian F. Mark

Associate Editor
Timothy P. Welch

Associate Editor
Marc A. Schulz

Associate Editor
Eric D. Andrew


Labor Law Team
David R. Adams, Team Leader
[email protected]

 
Dan D. Kohane
[email protected]                                           
           
Michael F. Perley
[email protected]

Eric S. Bernhardt
[email protected]

Marc A. Schulz
[email protected]


Jesse L. Siegel
[email protected]ine.com
Steven E. Peiper
[email protected]

Brian F. Mark
[email protected]

Timothy P. Welch
[email protected]

Eric D. Andrew
[email protected]

 
Michael J. Dischley
Hurwitz & Fine, P.C.
 
Buffalo
1300 Liberty Building, Buffalo, NY 14202
Phone: 716-849-8900, Fax: 716-855-0874
             
Long Island
575 Broadhollow Road, Melville, NY 11747
Phone: 631-465-0700, Fax: 631-465-0313

Albany

Phone:  518-641-0398

Additional Offices
Albion  |  Amherst  |  Connecticut  |  Niagara Falls  |  Palm Beach Gardens  |  Rochester  |  Toronto


Hurwitz & Fine, P.C. is a full-service law firm providing legal services
throughout the State of New York
 
www.hurwitzfine.com
© 2022, Hurwitz & Fine, P.C. All Rights Reserved
 
In some jurisdictions, newsletters such as this may be considered Attorney Advertising.

Newsletter Sign Up