Labor Law Pointers - Volume XI, No. 7

Volume XI, No. 7 Wednesday, June 1, 2022

 Note from David R. Adams:

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.  First, I have a message from our fearless leader and managing partner, Jody Briandi:    Today, we proudly announce the 45th anniversary of our firm!  Thanks to all of our supportive and loyal clients, it’s been a wonderful journey—you have been an integral part of our growth and success.  On this momentous occasion, all of us at the firm offer our appreciation for choosing us as your attorneys and look forward to serving your future legal needs.   You may notice that we have a new look and a new, streamlined name, Hurwitz Fine.       Our new logomark combines the first initial of each component of the firm’s name into an interlocked HF unit to represent the synergy of the firm’s diverse group of attorneys and their singular focus on achieving successful client outcomes. Its color, a patina-like hue, underscores our history, and pays homage to the Lady Liberty statues that serve as beacons atop the Liberty Office Building in downtown Buffalo, where we first opened our doors in 1977 and are still headquartered today.  The one-word tagline, Proven., communicates the hard work and hard-won solutions and victories on behalf of our clients, while serving as an inspiration for navigating future matters, and a reassurance to both longstanding and new clients.   We are excited by this evolution of our brand, our continued growth and commitment to our clients! Today the firm is 45 years old and Hurwitz Fine, my home for close to 18 years, has undergone a transformation of sorts.  As a firm with 45 years of experience, proven in our ability to work with our clients collaboratively and delivering the best possible results for our clients and insurance partners, we have updated our “Brand” as the marketing people call it, and part of that was new pictures for our website.   Here is my photo from when I started at Hurwitz Fine. An attorney with 10 years of experience handling all types of cases, though mostly Labor Law, I came here looking for a place to grow, and I was given that opportunity.  Notice the dark hair and beard on that skinny face.  I looked like a kid, still feel like one but that is a story for another time.     Now, in the picture below, you will notice what defending New York Labor Law cases does to a man: beard is now completely blond, hair turning blond and a few more pounds are visible.  I am sure that time, and children, have aged us all, but I like to think that the damn Labor Law has done its work on me as well.  I am so blessed to have the opportunity to work with so many smart, dedicated individuals, both here in the firm and the many Claims Professionals with whom we interact daily and the clients we represent, to defend the owners and contractors against whom these cases are brought.  I would not change a thing, well, other than applying logic and allowing culpable conduct to apply to the injured workers.  I am so thankful for the opportunities and trust of our partners in this endeavor.   Ok, I am off the soap box now, so here are some much better pictures so we can all learn together.   In our first offering this month, sent to me by a claims professional looking out her window, we see a roof being installed on a structure housing a home and an office for an attorney.  The roof was leaking so this roofing company was hired to replace the roof.  As the worker attempted to step from one toe board to the next, he lost his footing and fell, sustaining injury.  The homeowner did not supervise, control, or direct the work.  § 240(1) case?     The plaintiff is a person so employed and thus a valid plaintiff.  The project is clearly construction, repair or alteration and the injury was caused by the effect of gravity.  The potential defendant, the structure owner, will attempt to claim the homeowner’s exemption and the plaintiff’s attorney will claim the structure is used for commercial purposes and thus the exemption does not apply.  Where, as here, the structure is used for both commercial and residential purposes by the owner, and the repair is for the entire structure the question turns on whether the work being done was directly related to the residential use of the structure.  In this case it is, and thus the exemption would apply and summary judgment to the defendant.   Next, we have an electrician who was hired to repair the wiring for a light that would not work in an office building.  He was an experienced electrician with an OSHA 10 and an OSHA 30.  His truck, parked in the lot just outside, had a 6 foot ladder on the rack which would have been tall enough to reach the opening in the ceiling and repair the wiring and light.  The plaintiff was in a hurry and thought that he could do the job without going to get the ladder as it would take just a few minutes, thus the “inventive” method to reach the necessary location.  § 240(1)?   The plaintiff was a person so employed, the property was commercial and the owner is a valid defendant, the job was a repair and the injury caused by the application of gravity so the plaintiff has a prima facie case of §240(1).  The defense will be that the plaintiff was the sole proximate cause of his fall and injuries.  There are 5 necessary elements for the sole proximate cause defense, 1) there must be an appropriate safety device which is 2) available which 3) the plaintiff must have been instructed or knew to use which was 4) misused or not used 5) for no good reason.  Here we have the appropriate safety device, the 6-foot ladder, it is on the truck which is sufficient to be available and we know the plaintiff did not use it for any good reason.  The plaintiff testified at his depo that he was never instructed to always use a ladder and that he was never instructed not to use a garbage can perched on a bench instead.  In addition, he testified that he felt it was, in fact, a safe and appropriate way to do the job.  As luck would have it, the attorney taking the deposition had, like all members of our Labor Law Team, been certified with the OSHA 10 and knew that part of the training was that this type of improvised ladder was not approved, and that the plaintiff had to have been taught that to receive his certificate.  In the motion for summary judgment, the fact that the plaintiff was so instructed can be proved, summary judgment for the defense.   Please feel free to reach out to us with any questions Labor Law or Risk-Transfer related.   

David

  David R. Adams Hurwitz Fine P.C. The Liberty Building 424 Main Street, Suite 1300 Buffalo, New York 14202 Phone:  716.849.8900 Fax:  716.855.0874 Email:  [email protected] HF Website:  www.hurwitzfine.com

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Cazho v Urban Bldrs. Group, Inc. May 3, 2022 Appellate Division, First Department

  While working on the roof of a residential building during a renovation project, plaintiff fell through an opening while moving a skylight cover with a coworker. The trial court granted plaintiffs’ motion for partial summary judgment on liability on his Labor Law § 240(1) claim and denied Urban’s motion for summary judgment dismissing that claim.   Labor Law § 240(1) (MAS) The First Department unanimously affirmed the trial court’s granting of summary judgment to plaintiff, who established that Urban failed to provide any safety devices or equipment to afford plaintiff with proper protection from an elevated-related hazard. As plaintiff was following his supervisor’s directions to move the skylight cover when he walked into the opening, the Court held Urban failed to raise an issue of fact as to whether plaintiff’s actions were the sole proximate cause of his incident.   PRACTICE POINT: Where a worker is injured after a fall through a skylight opening and had not been provided with any safety device or equipment to afford him proper protection from such an elevated-related hazard, the injured worker is entitled summary judgment under Labor Law § 240(1).    

Dolcimascolo v 701 7th Prop. Owner, LLC May 3, 2022 Appellate Division, First Department

  Plaintiff alleged that a lawyer, was sent by his employer, Navillus, to secure plaintiff's signature on the release, before he retained counsel, and made both the promise that he would have a job if he signed the releases, and the implicit threat that he would not have a job in the future if he failed to sign. The trial court granted defendants’ motion to amend their answer and for summary judgment dismissing the complaint based on the signed release.    Labor Law § 240(1) (MAS) The First Department reversed the trial court’s decision and denied defendants’ motion. Although defendants satisfied their initial burden by establishing the existence of two releases, each with clear and unambiguous language, which released defendants from the claims, the Court found that plaintiff raised triable issues of fact as to duress, fraud, and mutual mistake sufficient to defeat the motion based on his testimony that he did not understand that he was releasing anyone besides his employer.   PRACTICE POINT: A release, although properly executed, may nonetheless be void. Where, as here, fraud or duress in the procurement of a release is alleged, a motion to dismiss should be denied because forcing injured workers to accept a small settlement or else lose their job before they can ascertain the nature and scope of their injury is contrary to the strong public policy of New York to protect injured workers, as reflected in the Labor Law. Additionally, “a mistaken belief as to the nonexistence of a presently existing injury is a prerequisite to avoidance of a release.”     

Mazzarisi v New York Socy. for the Relief of the Ruptured & Crippled May 3, 2022 Appellate Division, First Department

  Plaintiff was power washing HVAC chillers when he was allegedly injured. It was the policy of plaintiff’s employer not to use any equipment from other trades, and that plaintiff should have contacted a supervisor upon realizing that the work involved a height differential. The trial court granted HSS’s motion for summary judgment dismissing plaintiffs’ claims under Labor Law § 240(1), denied HSS’s motion seeking dismissal of the Labor Law § 200 and common-law negligence claims, and denied plaintiffs’ cross-motion for summary judgment under Labor Law §§ 240(1) and 200.   Labor Law § 240(1) (MAS) The First Department reversed the trial court’s decision by denying HSS’s motion for summary judgment and granting plaintiff’s motion because power washing of HVAC chillers qualifies as “cleaning” under Labor Law § 240(1). Plaintiff’s injury-producing task was not merely routine as it did not occur on a recurring schedule as part of the ordinary care of the premises, involved elevation risks not comparable to the those encountered in domestic cleaning, and required specialized equipment. Additionally, plaintiff’s action was not the sole proximate cause of the accident as there is no evidence that any of HSS’s policies were communicated to plaintiff.   PRACTICE POINT: The issue here is whether plaintiff’s task constitutes cleaning or routine maintenance. The Court of Appeals in Soto v J. Crew Inc. stated that “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 nor expertise, nor the unusual deployment of labor; (3) generally involved significant 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.” The presence or absence of any one factor is not necessarily dispositive if, viewed in totality, the remaining considerations militate in favor of placing the task in one category or the other. Here, power washing of HVAC chillers is clearly cleaning and not routine maintenance, as the injury-producing work met all four Soto elements.   Labor Law § 200 and Common-Law Negligence (ESB) Since plaintiff’s were entitled to summary judgment under Labor Law § 240(1), the First Department declined to address plaintiff’s Labor Law § 200 and common-law negligence claims.    

Vitucci v Durst Pyramid LLC May 3, 2022 Appellate Division, First Department

  Plaintiff, an employee of nonparty plumbing company, was injured while he was installing a shower-curtain rod in a bathroom. The task required plaintiff to use a ladder; however, because there were appliance boxes on the floor of the bathroom, he did not have sufficient space to open an A-frame ladder. As a result, he stood on the rim of the bathtub to perform his work, and while doing so in the dimly lit bathroom, he hit his head on the rod and fell to the floor. At the time of plaintiff's accident, no artificial lighting or electrical power was working in the bathroom, although a window provided some natural light.   The trial court granted plaintiffs’ motion for summary judgment on the Labor Law § 240(1) claim against Durst/Hunter and declined to address plaintiffs’ motion as to Labor Law § 241(6), denied Durst/Hunter’s motion for summary judgment dismissing the complaint as against them and for summary judgment on their contractual and common-law indemnification cross claims, granted Geller’s motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims as against it, and denied Geller's motion for summary judgment dismissing the Labor Law § 241(6) claim as against it as based on a violation of Industrial Code (12 NYCRR) § 23-1.30 and the contractual and common-law indemnification, contribution, and breach of contract cross claims.    Labor Law § 240(1) (MAS) The First Department affirmed summary judgment in favor of plaintiff, who established that he suffered harm that “flow[ed] directly from the application of the force of gravity” when he fell from the edge of the bathtub, which served as the functional equivalent of a scaffold or ladder. The evidence also showed there was insufficient room inside the bathroom for plaintiff to use an A-frame ladder and that plaintiff was forced to reach the elevated work area by standing on the edge of the bathtub to install the shower-curtain rods. Plaintiff testified that standing on the edge of the tub was necessary because he would lack the necessary leverage to tighten the screws with an Allen wrench.   The Court rejected Durst/Hunter’s sole proximate cause argument because they failed to make a showing that plaintiff deliberately refused to obey a direct and immediate instruction to use an available safety device or a standing order to not stand on the edge of the bathtub so as to invoke the recalcitrant worker defense.   PRACTICE POINT: If you want your expert affidavit to be considered by the court, then your expert must accurately recreate the conditions surrounding the accident. If not, the court will disregard the expert’s affidavit as speculative or unsupported by any evidentiary foundation and the opinion will be given no probative force and is insufficient to withstand summary judgment.   Labor Law § 241(6) (TPW) The First Department found that to the extent plaintiff's claim were based on allegations that his fall was due to inadequate lighting, Durst (lessee) and Hunter (general contractor) may be liable for plaintiff's injuries given the issues of fact as to whether they had constructive notice of inadequate lighting in the bathroom.  Likewise, the Court found issues of fact as to whether defendant Geller (electrical subcontractor) was responsible for the lighting at the time of the accident, and therefore whether it may be liable as a statutory agent based on its authority to control the lighting, and whether it may be liable for negligence in creating or having constructive notice of the alleged defective lighting.   Labor Law § 200 and Common-Law Negligence (ESB) The First Department reversed the trial court and denied Geller’s motion to dismiss the Labor Law § 200 and common-law negligence claims because there are issues of fact whether the electrical subcontractor was responsible for the lighting at the time of the accident. Therefore, Geller may be liable as a statutory agent based on its authority to control the lighting, and whether it may be liable for negligence in creating or having constructive notice of the defective lighting.   Indemnity Issues in Labor Law (BFM) The First Department held that because Geller could be held liable to plaintiffs, it was precluded from arguing that it was free of negligence as a matter of law and thus, was not entitled to dismissal of Durst/Hunter's common-law indemnification and contribution cross claims. The Court affirmed the trial court’s denial of Durst/Hunter's motion for summary judgment on their common-law indemnification cross claims as they did not establish their own freedom from negligence. After noting that Geller's subcontract was admissible despite the fact that it was not authenticated, the Court found that Geller’s obligation to indemnify Durst/Hunter was triggered by plaintiff's mere allegation that Geller's negligent installation or maintenance of lighting contributed to the accident. Accordingly, Durst/Hunter were entitled to conditional summary judgment on their contractual indemnification claim against Geller, to the extent the accident was not caused by their own negligence.   The First Department held that the trial court should have dismissed Durst/Hunter's breach of contract cross claims for failure to procure insurance, since no party disputed that Geller purchased insurance naming Durst/Hunter as additional insureds and providing the requisite amount of coverage.    

Winters v Atlantic Dev. Corp. May 3, 2022 Appellate Division, First Department

  Atlantic moved for summary judgment on plaintiff’s complaint on March 17, 2021. Codefendant Walk moved for summary judgment on the complaint on March 10, 2021, contending that she was a one family owner. Despite the NYSCEF confirmation notice of electronic filing of Atlantic’s motion, plaintiff’s counsel contended he was never made aware of this motion, through NYSCEF or otherwise. It was not until plaintiff was served with the decision dated April 16, 2021, that plaintiff’s counsel was made aware of the said motion. Counsel for plaintiff immediately phoned defendant’s attorney to request a copy of the motion. The motion of Walk was received via NYSCEF and was not opposed. Upon receipt of Atlantic’s motion, plaintiff immediately moved to reargue the motion, which was denied by the trial court. Plaintiff then moved to vacate that decision based on the non-receipt of the motion, which was also denied by the trial court.   Labor Law § 240(1) (MAS) The First Department unanimously reversed the trial court’s order because plaintiff set forth a reasonable excuse for his failure to timely oppose Atlantic’s summary judgment motion, and his deposition testimony established the merit of his Labor Law § 240(1) claim. There is no evidence of an intent to delay or abandon the action or that Atlantic is prejudiced by the delay, and public policy supports resolving this case on the merits.   PRACTICE POINT: Failure to oppose a timely motion for summary judgment can be costly unless you can demonstrate (1) a reasonable excuse for defaulting on the motion; (2) a meritorious claim or defense to plaintiff’s claims; and (3) a lack of prejudice against the moving party because public policy favors resolving cases on their merits. Here, plaintiff satisfied all three elements for failing to oppose Atlantic’s motion for summary judgment.    

Guevara-Ayala v Trump Palace/Parc LLC May 5, 2022 Appellate Division, First Department

  The Board contracted with 4 Star to perform façade repairs on the roof of the premises. 4 Star subcontracted with Swing to construct a scaffold system on the roof of the building. On the day and at the time of the accident, rather than using the scaffold system walkway, plaintiff, a 4 Star employee, crossed directly over the roof via pipes that had been laid as part of the scaffold system and attempted to descend from the pipes to the wooden walkway. As plaintiff brought his foot or feet down, a wooden plank broke, and he fell. The trial court denied Swing’s motion for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims and denied the Board’s motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims as against it and on its third third-party contractual indemnification claim against 4 Star.    Labor Law § 240(1) (MAS) The First Department reversed the trial court’s decision, finding it should have dismissed the Labor Law §§ 240(1) § 241(6) claim as against the scaffold system subcontractor, Swing, given it was undisputed that Swing was not a contactor or owner within the meaning of the statute nor was it a contractor or owner's statutory agent.  Although Swing contractually retained the right to reenter the premises and inspect the scaffold system, Swing did not have employees on site during the work and it did not inspect the scaffold system while it was in place. Once Swing constructed the scaffold system, its scope of work was limited to only returning to the premises to deliver supplies and to disassemble the scaffold system at the end of the project which was insufficient conduct to being it within scope of the Labor Law.   PRACTICE POINT: The Labor Law imposes absolute liability on owners, contractors, and their agents for a breach of the statutory duty that proximately causes an injury. When the injury-producing work has been delegated to a third-party, that third-party then obtains the concomitant authority to supervise and control that work and thus becomes a statutory “agent” of the owner or general contractor. Here, Swing did not qualify as an agent of the owner or general contractor as it lacked the authority to supervise and control the injury-producing work.   Labor Law § 200 and Common-Law Negligence (ESB) The First Department reversed and dismissed these claims against the Board because plaintiff’s accident arose out of his use of a scaffold system supplied by either 4 star or Swing. Thus, this case involved the means-and-methods category, which depends on the exercise of supervision and control over the work. Here, it was undisputed that the Board did not exercise supervision or control over either 4 Star’s or Swing’s work.   Indemnity Issues in Labor Law (BFM) The First Department held the indemnification clause in 4 Star’s contract with the Board was enforceable because it requires 4 Star to indemnify the Board for claims “arising out of or resulting from performance of the Work ... only to the extent caused by the negligent acts or omissions of [4 Star], a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable”.  Having determined there was no basis for finding the Board was negligent, the Court noted that there has been no finding that either 4 Star or Swing, its subcontractor, was negligent.  Thus, the Court held that the Board is entitled to conditional indemnification, pending a determination of negligence and apportionment of fault.    

People v Amazon.com May 10, 2022 Appellate Division, First Department

  The complaint alleged Amazon repeatedly and persistently failed to institute reasonable health and safety measures at its facilities during the COVID-19 pandemic to protect its workers from COVID-19, in violation of Labor Law § 200. The trial court denied defendant’s motion to dismiss the complaint.   Labor Law § 200 and Common-Law Negligence (ESB) The First Department reversed the trial court and granted defendant’s motion, which sought a permanent injunction requiring Amazon to undertake policies consistent with COVID-19 workplace guidelines issued by the State. The Court dismissed the claim as moot since the State withdrew the public health guidance    

Ferguson v Durst Pyramid, LLC May 17, 2022 Appellate Division, First Department

  Plaintiff was injured while employed by nonparty Enclos. On the accident date, plaintiff was with two other ironworkers and Fumia on an elevated platform known as a crane pad. Plaintiff used an inverted five- or six-gallon plastic bucket to reach the crane pad. According to his deposition testimony, he fell when the bucket allegedly “kicked out” after he placed his right foot on it and was about to place his left foot on the crane pad. The trial court denied plaintiff’s motion for summary judgment under Labor Law §§ 240(1) and 241(6) and granted defendants’ cross motion dismissing the claims based on undisputed evidence that there was an alternate safe means of accessing the crane pad consisting of a step down at a lower section at the northeast end of the crane pad.   However, the First Department modified the trial court's decision to the extent of granting plaintiffs summary judgment under Labor Law §§ 240(1) and 241(6) as defendants failed to cite any evidence rebutting the affidavit of plaintiff's foreman (i.e. Fumia). Fumia's affidavit stated that at the time of the accident, he was standing on the crane pad when he witnessed plaintiff step on the inverted bucket to access the pad and fall. Fumia averred that the only access to and from the crane pad was from the south side, using the inverted bucket, as the north side staircase was blocked by a crane, and the crates barred access from the west and east side.   The trial court thereafter denied defendants' motion to renew their cross-motion for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims and their opposition to plaintiffs' motion for summary judgment as to liability on those claims, denied defendants' motion to renew their motion to vacate the note of issue and compel the deposition of nonparty witness Fumia and discovery as to damages, granted plaintiffs' motion to quash the subpoena for Fumia's deposition, and denied defendants' cross-motion to compel Fumia's deposition.   Labor Law § 240(1) (MAS) The First Department affirmed denial of defendants’ motion to renew and to depose Fumia as they failed to offer reasonable justification for their failure to present those facts on the prior motions and failed to explain why they could not have rebutted Fumia’s affidavit in reply on their cross-motion for summary judgment. However, the Court modified the trial court’s decision by granting defendants’ motion to renew their motion to vacate the note of the issue to the extent of reopening discovery to compel production of outstanding discovery on damages because reinstating the Labor Law claims claims on appeal revives the issue of damages.   PRACTICE POINT: If, on a motion to renew, your motion is “based upon new facts not offered on the prior motion”, you must ensure that it “would change the prior determination”, as required under CPLR § 2221(e)(3). In this case, the new facts did not change the Court’s decision as the evidence is not inconsistent with the material information in Fumia’s affidavit that provided the basis for the Court’s rejection of defendants’ sole proximate cause defense.    

Henry v Split Rock Rehabilitation & Health Care Ctr., LLC May 19, 2022 Appellate Division, First Department

  After significant discovery, the trial court granted plaintiff’s motion for leave to amend his pleadings to include Labor Law §§ 241(6) and 200 claims, pursuant to CPLR § 3025, on the grounds that the record established plaintiff has viable claims under §§ 241(6) and 200, and defendants failed to establish that they would be significantly prejudiced by granting the motion.   Labor Law § 241(6) (TPW) The First Department affirmed the trial court’s decision to grant plaintiff’s motion for leave to amend to include Labor Law claims. While defendants argue that plaintiff was not involved in construction within the meaning of the statute, in the context of a motion for leave to amend, the Court does not decide the merits of the proposed amended pleading but rather whether defendants were prejudiced by the amendment.  As for the proposed Labor Law § 241(6) claim, plaintiff identified a sufficiently specific Industrial Code provision of § 23-1.13[b][4] which applies to owners, even though it also imposes obligations on the employer and defendants were unable to cite any authority demonstrating that the discretionary grant of leave to amend was prejudicial.    Labor Law § 200 and Common-Law Negligence (ESB) The First Department affirmed the trial court’s decision to granted plaintiff’s motion to assert a claim under Labor Law § 200. Although there is no evidence that defendants supervised plaintiff, plaintiff's theory of liability was that there was a defect in the premises, despite the absence of evidence that defendants did not supervise plaintiff.    

Jackson v Hunter Roberts Constr., L.L.C. May 19, 2022 Appellate Division, First Department

  Plaintiff and six to eight other workers were performing work for nonparty JM Botto. According to plaintiff, in order to perform his task, he had to traverse a piece of plywood, possibly “four by eight.” The plywood covered the distance from the dirt road/driveway outside the garage to the concrete garage floor. Plaintiff was allegedly injured when he tripped and fell while carrying a section of pipe over the plywood being used as a ramp. Hunter Roberts owned the premises and Bronx Parking was the general contractor. The trial court granted defendants’ motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims and denied plaintiffs’ cross motion for summary judgment on the issue of liability on those claims.    Labor Law § 200 and Common-Law Negligence (ESB) Labor Law § 200 is a codification of the common-law duty of owners and general contractors to provide workers with a reasonably safe place to work. Claims under 200 fall under two categories: “those arising from an alleged defect or dangerous condition existing on the premises and those arising from the manner in which the work was performed.” Where an existing defect or dangerous condition caused the injury, liability attaches if the owner or general contractor created the condition or had actual or constructive notice of it. Where the injury was caused by the manner and means of the work, including the equipment used, the owner or general contractor is liable if it actually exercised supervisory control over the injury-producing work.   The First Department reversed the trial court and denied defendants’ motion, finding a triable issue of fact as to whether the owner and general contractor had constructive notice of the existence of a dangerous and defective condition (a defective plywood ramp) based on plaintiff’s testimony and affidavit that he had seen the plywood ramp in place where he began working at the site, although he never traversed it prior to his incident, which occurred months into his work. Contrary to defendants’ argument, the number of  witnesses contradicting plaintiff’s account is not a basis for granting summary judgment as it merely raises issues of credibility.    

Latteri v Port of Auth. of N.Y. & N.J. May 19, 2022 Appellate Division, First Department

  Plaintiff, a mechanical technician, used an enclosed crawl space ramp located beneath an AirTrain station escalator to reach an upper area of the escalator that needed repair. After diagnosing the problem, he walked back down the 15-foot underside ramp, which paralleled the slope of the escalator steps above, and allegedly slipped, and to avoid a fall from a height, he grabbed an overhead metal truss, which caused injury to his shoulder. The internal ramp lacked siderails for support. The trial court granted plaintiff's motion for partial summary judgment on liability under Labor Law § 240(1) and denied defendant's motion for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims.   Labor Law § 240(1) (MAS) The First Department unanimously affirmed summary judgment to plaintiff because the evidence showed that the internal slipped ramp plaintiff used to reach the mechanical parts of the escalator failed to provide proper protection and was poorly lit, and plaintiff’s failure to use a harness amounts at most to comparative negligence, which is not a defense to a Labor Law § 240(1) claim. The Court rejected defendants’ sole proximate cause argument since defendant offered no evidence that tie off locations were available to use a harness where plaintiff was working, that it would protect him from injury, that plaintiff knew he was supposed to use a harness when climbing the ramp, or that he disregarded specific instructions to wear a harness.   PRACTICE POINT: Recall that, to establish a sole proximate cause defense, such that a defendant has no liability under Labor Law § 240(1), it must prove plaintiff: (1) had adequate safety devices available; (2) knew both that the safety devices were available and that he or she was expected to use them, (3) chose for no good reason not to do so, and (4) would not have been injured had he or she not made that choice. Here, defendants could not raise a triable issue of fact to defeat plaintiff’s summary judgment motion as defendants failed to satisfy the second, third, and fourth elements of the defense. If any one element is missing, then the sole proximate cause defense is destroyed.   Labor Law § 241(6) (TPW) In light of the grant of summary judgment to plaintiff under Labor Law § 240(1), the First Department held that § 241(6) claim is academic (see Jerez v Tishman Constr. Corp. of N.Y., 118 AD3d 617 [1st Dept 2014]).    

Tavarez v LIC Dev. Owner, L.P. May 19, 2022 Appellate Division, First Department

  Plaintiff fell from a ladder in the course of her employment with third-party defendant Collins. Plaintiff alleged common-law negligence, including failure to provide her with a safe ladder, and violations of Labor Law §§ 240(1)-(3), 241(6), 200, and 202. Plaintiff alleged fractures to her left knee, severe post traumatic arthritis, and psychological embarrassment. Nonparty property manager Tishman, as agent for owner LIC, and Collins, as the contractor, executed a contract for janitorial, window cleaning, and light bulb maintenance services. The contract was effective between October 1, 2017 and December 31, 2020 and signed by Tishman, "[s]olely in its capacity as agent for [LIC]," and Collins. According to Schedule A-1 of the contract, LIC is designated as the owner of the premises. Under the "contract price" section, LIC is responsible for paying Collins for the services provided under the contract. The trial court denied Collins’ motion to dismiss LIC's third-party complaint against it.    Indemnity Issues in Labor Law (BFM) The First Department held the indemnification provision did not apply to LIC as the provision did not identify or include LIC. Accordingly, Collins’ motion to dismiss the third-party complaint should have been granted. The Court also held that LIC's claim for common-law indemnification was barred by Workers’ Compensation Law § 11 because plaintiff's alleged injuries did not constitute a “grave injury” within the meaning of the statute.    

Douglas v Tishman Constr. Corp. May 24, 2022 Appellate Division, First Department

  Plaintiff was injured on a construction project when he was allegedly struck by a wooden door form. At the time, plaintiff worked as a lather for Navillus, a concrete subcontractor on the project. The trial court granted plaintiff's motion for summary judgment on his Labor Law §§ 240(1) and 241(6) claims against Tishman and BOP (collectively “defendants”), and granted defendants’ cross-motion for leave to amend their answers to assert an affirmative defense based on collateral estoppel and dismissed plaintiff's claims that his injuries included traumatic brain injury and cognitive disorder.   Labor Law § 240(1) (MAS) The First Department affirmed as the trial court correctly determined that defendants are subject to liability under Labor Law § 240(1) as BOP admitted in its answer that it was a lessee of the property where the construction was taking place and thus is deemed a property owner. Tishman, the construction manager, hired Navillus to complete the concrete work under a contract that set forth Tishman’s safety guidelines. Thus, the Court held that Tishman had the authority to exercise control over the work that brought about plaintiff’s injuries, subjecting it to vicarious liability as an agent of the owner.   Plaintiff’s testimony that the wooden door form, which Navillus carpenters leaned against the rebar cage, fell and struck him, causing him to fall off a ledge around three feet high, established summary judgment on his § 240(1) claim against defendants.   PRACTICE POINT: The lesson here is that a contract containing safety guidelines is sufficient to establish authority over the injury-producing work such that a construction manager is liable under Labor Law § 240(1) as an agent of the owner.   Labor Law § 241(6) (TPW) The First Department unanimously modified the trial court’s decision which granted plaintiff's motion for summary judgment on liability under Labor Law § 241(6) claim. Upon a search of the record the trial court correctly found that BOP and Tishman were both subject to liability under the Labor Law as owner and agent of owner. Plaintiff’s motion should have been denied, however, with respect to the § 241(6) claim, which was based on an expert affidavit submitted in reply. The affidavit, in which plaintiff asserted for the first-time violations of 12 NYCRR § 23-2.2(a) and (b), did not address arguments made in defendants’ opposition, and instead sought to assert new grounds for the motion should have been disregarded.    

Lopez v Halletts Astoria LLC May 24, 2022 Appellate Division, First Department

  Plaintiff, an S&E employee engaged in hoist installation and maintenance work, was allegedly injured while fixing a misaligned hoist elevator at a construction site. While plaintiff was on the hoist tower attempting to loosen a screw, an adjacent ascending hoist elevator struck his foot. The trial court denied defendants’ motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims against New Line and the Labor Law § 241(6) claim predicated on Industrial Code (12 NYCRR) §§ 23-6.1(c)(1) and 23-6.3(g) against all defendants, granted, plaintiff summary judgment on those claims, and granted plaintiff's and S&E’s motions to sever the third-party action.    Labor Law § 241(6) (TPW) The First Department unanimously modified the trial court’s denial of defendants’ motion as to the Labor Law § 241(6) claim insofar as it was predicated on Industrial Code § 23-6.1(c)(1) and the grant of plaintiff summary judgment on the Labor Law § 241(6) claim insofar as it was predicated on Industrial Code § 23-6.3(g).  First, plaintiff's Labor Law § 241(6) claim predicated on Industrial Code § 23-6.1(c)(1) fails as that provision is “unquestionably general” in nature and should properly have been dismissed. As for plaintiff's claim predicated on Industrial Code § 23-6.3(g), while it was evident that plaintiff was “climbing the hoist tower” when he was struck by the other “hoist car” in operation, the Court concluded an issue of fact existed concerning whether violation of this provision was a proximate cause of plaintiff’s injury, thereby precluding resolution on summary judgment.    Labor Law § 200 and Common-Law Negligence (ESB) The First Department reversed the trial court and denied plaintiff’s motion against New Line as plaintiff’s injury arose not from a defective or dangerous condition but, rather, from the manner and method in which the work was performed, since the evidence shows the adjacent hoist elevator that struck plaintiff’s foot was functionally normally. The Court found issues of fact whether permitting use of the adjacent hoist during S&E’s repair work was a proximate cause of plaintiff’s injury and whether New Line had the necessary authority to control the injury-producing work.   Indemnity Issues in Labor Law (BFM) First Department affirmed the severance of the third-party action, as plaintiff and S & E would be prejudiced by defendants’ inexcusable delay in bringing the third-party action.    

Pimentel v DE Frgt. LLC May 24, 2022 Appellate Division, First Department

  Plaintiff, an elevator constructor working for TEI, alleges that he was injured as he stood on the lift gate of a DE Freight delivery truck, in order to stabilize 400 pounds of elevator equipment as it was being lowered to the ground. According to plaintiff, as the lift gate descended, it collapsed to the ground, causing him to fall backwards onto the street. About two weeks before the accident, plaintiff’s supervisor had sent the truck away from the work site because the lift gate was rusted, and DE Freight sent the truck to get repaired, though DE Freight’s representative testified that he was not sure what repairs were done. After the repairs, DE Freight inspected the truck by putting heavy toolboxes on the lift gate and raising it to ensure that it was sound.    The trial court granted plaintiff's motion for summary judgment on his Labor Law § 240(1) claim as against defendant/third-party plaintiff Namor, denied DE Freight’s motion for summary judgment dismissing the common-law negligence claim, denied TEI’s motion for summary judgment dismissing Namor's contractual indemnity claim against it, granted Namor's motion for summary judgment on its contractual indemnity claim against TEI, and denied the motion for summary judgment on its breach of contract claim for failure to procure insurance against TEI and on its common-law indemnification and contribution claims against DE Fright, and granted TEI's motion for a protective order striking Namor's notice to admit.    Labor Law § 240(1) (MAS) The First Department unanimously affirmed as plaintiff’s work exposed him to an elevation-related hazard for which the device – here, the lift gate of DE Frieght’s truck – was inadequate. The Court rejected Namor’s and TEI’s position that plaintiff should not have been standing on the lift gate and should have instead used a nearby available ladder because those arguments amounted to comparative negligence, which is not a defense to a Labor Law § 240(1) claim.   PRACTICE POINT: A four- to five-foot fall is not categorically excluded from the kinds of the accidents that may give rise to Labor Law § 240(1) liability.   Labor Law § 200 and Common-Law Negligence (ESB) The First Department affirmed denial of DE Fright’s motion as it failed to establish that it lacked constructive notice of any defect in the truck’s lift gate after having sent it for repairs. Rather, DE Freight merely pointed to gaps in plaintiff’s and other parties’ proof, which is insufficient to meet its initial burden on its motion.   Indemnity Issues in Labor Law (BFM) The First Department affirmed the denial of summary judgment to TEI dismissing Namor's contractual indemnification claim against it, and the granting of summary judgment in Namor's favor on that claim against TEI.  Because no party contested the dismissal of plaintiff's Labor Law § 200 and common-law negligence claims as against Namor, Namor established its freedom from active negligence, and therefore was entitled to contractual indemnification from TEI. Namor's argument that TEI failed to procure an automobile liability insurance policy, as required by the contract between Namor and TEI, was improperly raised for the first time in reply papers and was therefore not preserved for appeal.  Namor was not entitled to common-law indemnification from DE Freight because DE Freight's negligence had not yet been established as a matter of.  For the same reason, Namor was not entitled to contribution from DE Freight.    

Cabrera v DIRECTV, LLC May 26, 2022 Appellate Division, First Department

  Plaintiff was installing a DirecTV dish at a property when he fell from the ladder used to access the roof. The homeowner hired DirecTV to install the satellite dish and DirecTV hired MasTec to do the installation. MasTec then subcontracted the work to plaintiff’s employer, third-party defendant, NP. Plaintiff testified that he put the ladder up, installed the unit and when he was coming down the ladder, he just saw himself on the floor. He added that he had traveled up and down the ladder about four or five times before the accident and had not moved the ladder during the installation process. The trial court granted plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim and denied DirecTV and MasTec’s motion for summary judgment dismissing the Labor Law § 241(6) claim under Industrial Code § 23-1.21(b)(4)(iv).    Labor Law § 240(1) (MAS) The First Department reversed the trial court and denied plaintiff’s motion because there is an issue of fact as to whether plaintiff fell and broke the ladder or the ladder broke, causing plaintiff to fall.   PRACTICE POINT: Where there are differing versions of the incident and defendant is only liable under one of those versions but not the other, then summary judgment in not warranted as there are credibility issues which must be resolved by the trier of fact.   Labor Law § 241(6) (TPW) The First Department affirmed that portion of the trial court’s decision denying defendants’ motion with respect to the claim that they violated Industrial Code § 23-1.21(b)(4)(iv) since defendants failed to meet their burden of demonstrating that the violation of that provision did not proximately cause the accident.    

Nicholson v Sabey Data Ctr. Props., LLC May 26, 2022 Appellate Division, First Department

  Plaintiff was allegedly injured when, while attempting to reverse a pallet jack, the jack suddenly engaged and jumped back, propelling him backwards onto a loose pipe, causing him to fall and the pallet jack to pin his ankle against the pipe. At the time, plaintiff was working at a construction project, moving pallets of cinderblocks from the loading dock to a temporary storage room. Sabey Data owned the premises and Sabey Construction was the construction manager on the project. Sabey Construction subcontracted ADCO for electrical work, and plaintiff's employer, nonparty Cirocco, for masonry work. Sabey Construction retained Select Safety as the site safety consultant.   The trial court granted the Sabey defendants’ motion for summary judgment dismissing the Labor Law § 241(6) claim predicated on Industrial Code (12 NYCRR) § 23-1.7(e), and the § 241(6) claim predicated on Industrial Code (12 NYCRR) §§ 23-1.5(c), 23-2.1(a)(1), and 23-9.2(a), denied the Sabey defendants' motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims, granted third-party defendant ADCO's motion for summary judgment dismissing the third-party claims for contractual indemnification, common-law indemnification, and breach of contract for failure to procure insurance and denied the Sabey defendants’ summary judgment on the same, and denied Sabey defendants’ summary judgment on the third-party claims for common-law and contractual indemnification against third-party defendant Select.   Labor Law § 241(6) (TPW) The First Department unanimously modified the trial court’s decision to deny Sabey defendants' motion for summary judgment dismissing the Labor Law § 241(6) claim predicated on Industrial Code (12 NYCRR) § 23-1.7. It was held the trial court should not have granted Sabey defendants' motion seeking dismissal of 12 NYCRR 23-1.7(e)(1) and (2) as defendants failed to establish that these regulations were not violated.  While it was undisputed that the passageway at which plaintiff was working was clear of obstructions, plaintiff testified the pipe that caused his accident was in a connecting passageway behind him. Plaintiff’s testimony also suggested that he tripped on the pipe before the pallet jack fell on him. Thus, his testimony may support a finding of a violation of 12 NYCRR 23-1.7(e)(1). Further, the testimonial evidence of four or five loose pipes on the floor of the storage room may support a finding of “scattered” material in a working area, in violation of 12 NYCRR 23-1.7(e)(2).    However, the trial court correctly denied defendants summary judgment dismissing the Labor Law § 241(6) claim predicated on 12 NYCRR 23-1.5(c)(3). Plaintiff's testimony that he had been having problems with the pallet jack, including shortly before the accident when he dropped off the first two pallets of cinderblocks raises an issue of fact as to a violation of that provision.   Labor Law § 200 and Common-Law Negligence (ESB) The First Department affirmed denial of the Sabey defendants’ motion as they did not demonstrate that they lacked the requisite control under a means and method theory of liability. Sabey’s general superintendent testified that he directed the subcontractors where to store their materials in the storage room, but not how to store them, aside from ensuring that a passageway at least eight feet wide remained clear. Although the superintendent did not direct the manner in which the materials were to be stored, an issue of fact exists as to whether Sabey Construction had control over the injury-producing work, i.e., the placement of the pipes. Moreover, the Court also found an issue of fact as to the extent to which the placement of the pipes contributed to plaintiff’s injuries.   Indemnity Issues in Labor Law (BFM) The First Department held that the trial court correctly granted ADCO's motion for summary judgment dismissing the third-party claim for common-law indemnification against it and denied Sabey Construction summary judgment on that claim.  The record establishes that the pipes involved in the accident did not belong ADCO, and that ADCO's work was not otherwise involved in the accident. Further, issues of fact existed as to Sabey defendants' negligence.  As the record established that plaintiff's accident was not “caused by the negligence . . . or other improper conduct” of ADCO, the court also properly granted ADCO summary judgment dismissing the third-party claim for contractual indemnification and denied Sabey defendants' motion for summary judgment on the same.  The court also correctly dismissed the third-party claim for breach of contract for failure to procure insurance and denied Sabey defendants summary judgment on that claim.  Although ADCO does not dispute that it did not procure insurance on Sabey defendants' behalf, such failure would not have resulted in any damages, as coverage was not triggered because plaintiff's claims did not arise out of ADCO's “operations” or work. In light of the issues of fact as to Sabey defendants' negligence, the trial court correctly denied Sabey defendants' motion for summary judgment on the third-party claim for common-law indemnification against Select Safety.  The Court declined to search the record and grant Select Safety summary judgment dismissing the claim because Select Safety did not file a notice of appeal.    

Piccone v Metropolitan Tr. Auth. May 26, 2022 Appellate Division, First Department

  Plaintiff was allegedly injured when he fell down an open and unguarded manhole that he had been attempting to cover, as instructed, while working on a construction site.  The trial court granted plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim and on the Labor Law § 241(6) predicated on a violation of Industrial Code (12 NYCRR) § 23-1.7(b)(1), denied defendants’ motion for summary judgment dismissing those claims, granted defendants' motion for summary judgment on their contractual indemnification claim against third-party defendant Island, and denied Island's motion for summary judgment dismissing that claim.    Labor Law § 240(1) (MAS) The First Department affirmed as plaintiff established entitlement to summary judgment under Labor Law § 240(1) as it was undisputed that he was injured when he fell down an open and unguarded manhole that he had been attempting to cover, as instructed, while working on a construction project. The Court rejected defendant’s sole proximate cause argument given the lack of protective railing around the manhole or any other safety devices.   PRACTICE POINT: Where no safety devices were supplied and the lack of a safety device was a proximate cause of the incident, the injured worker’s negligence can never be the sole proximate cause of the incident.   Labor Law § 241(6) (TPW) In light of the grant of summary judgment to plaintiff under Labor Law § 240(1), the First Department held that § 241(6) claim was academic.   Indemnity Issues in Labor Law (BFM) Due to issues of fact as to whether the accident arose out of, or in connection with, Island's concrete subcontract work, the Court held that the defendants failed to establish their entitlement to summary judgment on their third-party contractual indemnification claims against Island, since.  Issues of fact were found to exist as to whether plaintiff's accident was caused in whole or in part by defendant Metropolitan Transit Authority's failure to provide adequate safety protections around the open manhole and defendant Plaza-Schiavone Joint Venture's failure to abide by its contractual safety obligations under its subcontract with Island.    

Bernardez v 70 Franklin Place LLC May 31, 2022 Appellate Division, First Department

  Plaintiff, an electrician, was working in the basement of a renovation project owned and managed by defendants when the floor beneath him collapsed and he fell partially through the opening. The trial court denied plaintiff's motion to amend the bill of particulars and for partial summary judgment on his claims and granted 70 Franklin Place's motion for summary judgment dismissing the Labor Law § 241(6) claim.   Labor Law § 241(6) (TPW) The First Department unanimously affirmed the trial court’s decision to grant 70 Franklin Place's motion for summary judgment dismissing plaintiff’s Labor Law § 241(6) claim and deny plaintiff's motion to amend the bill of particulars to add an allegation that defendants violated Industrial Code 12 NYCRR § 23-3.3(c) because there was no evidence that the hand demolition work performed in the basement had a causal relationship with the floor failing.     

Lewis v Lester's of N.Y., Inc. May 11, 2022 Appellate Division, Second Department

  Plaintiff was working as a plumbing mechanic for nonparty Pro-Tech. While standing on a scaffold and attempting to fix a leaking pipe located in a ceiling of the first floor of the building, plaintiff was allegedly injured when an elbow portion of the pipe became dislodged and fell on his back as he was bent over at the waist retrieving a tool from the scaffold's platform. At the time of the accident, CT Condo owned the building and Contower owned commercial units on the first floor of the building, one of which was leased to the Lester’s defendants. Intercapital was the managing agent for Contower.   The leak at issue was located in one of the pipes above a drop ceiling in the Lester's defendants' leased space, which pipes serviced the building. It is undisputed that CT Condo retained plaintiff's employer to fix the leak and paid for those services. The trial court granted the separate motions of Contower and Intercapital and the Lester's defendants for summary judgment dismissing the Labor Law § 240(1) claim against each of them and denied plaintiff’s cross-motion for summary judgment on that claim.   Labor Law § 240(1) (MAS) The Second Department affirmed the trial court’s dismissal of the Labor Law § 240(1) claim. The Contower and the Lesteri’s defendants each established that they had no duty to maintain the pipe at issue where the incident occurred, as it was one of the condominium’s common elements and, thus, they were not owners, contractors, or agents as those terms are defined under the statute. The Court also held that plaintiff’s own deposition transcript failed to eliminate triable issues of fact as to whether the absence of any adequate safety device was a proximate cause of the incident.   PRACTICE POINT: Condominium common elements are solely under the control of the board of managers. In keeping the vesting of exclusive control of a condo’s common elements in the board of managers, it is well settled that a claim arising from the condition or operation of the common elements does not lie against the owners of the individual units; the proper defendant on such a claim is the board of managers. Stated differently, the Contower and Int the Lesteri’s defendants  not appropriate Labor Law defendants in this case.    

Moye v Alphonse Hotel Corp. May 18, 2022 Appellate Division, Second Department

  Plaintiff was injured while working on a demolition project at a hotel. According to plaintiff's deposition testimony, he allegedly tripped and fell on a pile of debris, consisting of electrical wires, sheetrock, and glass. At the time of the alleged accident, plaintiff was in the process of removing “old and worn” doors that had been piled in the basement of the site and loading the doors onto a truck. Two days immediately preceding plaintiff's alleged accident, he performed demolition work, which included “tearing up the hotel” and “knocking down walls.” The trial court granted I & G’s motion for summary judgment dismissing the Labor Law § 241(6) claim.   Labor Law § 241(6) (TPW) The Second Department affirmed the dismissal of the Labor Law § 241(6) claim as against I & G, the general contractor. Plaintiff alleged violations of 12 NYCRR §§ 23-1.7(d) and (e) for the first time in opposition to defendant's motion. Notwithstanding plaintiff's belated assertion of those violations, the Second Department determined that defendant established its entitlement to judgment as a matter of law dismissing the Labor Law § 241(6) claim predicated on 12 NYCRR §§ 23-1.7(d) and (e) as defendant was able to demonstrate that the debris upon which plaintiff allegedly tripped was an integral part of the ongoing demolition work being performed.     

Opalinski v City of New York May 18, 2022 Appellate Division, Second Department

  Plaintiff was working on a renovation project at a New York City public school when the hand-held angle grinder he was holding spun out of control and the blade allegedly cut into his left hand. On April 29, 2009, he commenced this action alleging violations of Labor Law §§ 240(1), 241(6), 200 and common-law negligence. With respect to the § 241(6) claim, the bill of particulars alleged violations of Industrial Code (12 NYCRR) §§ 23-1.12(a) and (c) and 23-1.10(b)(1). A prior appeal affirmed the trial court’s decision granting defendants' motion for summary judgment dismissing the § 241(6) claim. A final judgment was entered in favor of defendants and against plaintiff dismissing the complaint in its entirety.   Plaintiff served a copy of the final judgment with notice of its entry upon defendants' attorneys. On the same day, plaintiff moved pursuant to CPLR 2221(e)(2) for leave to renew his opposition to defendants’ motion for summary judgment dismissing the § 241(6) claim based on a purported change in the law, and upon renewal, for leave to amend his bill of particulars to assert a claim that he had not previously asserted, namely, a violation of 12 NYCRR § 23-1.5(c)(3). This first renewal motion was based on a decision issued by the First Department, which held that Industrial Code § 23-1.5(c)(3) was sufficiently specific to support a § 241(6) claim. The trial court denied plaintiff’s motion. While the second prior appeal was pending, the Second Department determined that § 23-1.5(c)(3) was “sufficiently concrete and specific to support [a] plaintiff's Labor Law § 241(6) cause of action”.   The Court affirmed the order appealed from in the second prior appeal, determining that, at the time plaintiff made the first renewal motion, the purported change in law based on Becerra did not constitute a change in the applicable law in this Department. Plaintiff moved in this Department for leave to appeal to the Court of Appeals from this Court’s prior decision and order in the second prior appeal. On that same date, plaintiff again moved, pursuant to CPLR § 2221(e)(2), for leave to renew his opposition to defendants' motion for summary judgment dismissing § 241(6) claim, based on a purported change in the law, the decision in Perez, and, upon renewal, for leave to amend his bill of particulars to assert a violation of Industrial Code § 23-1.5(c)(3). The Supreme Court denied plaintiff’s motion.    Labor Law § 241(6) (TPW) The Second Department affirmed the denial of plaintiff's motion, inter alia, for leave to renew his opposition to that branch of the defendants' motion for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6).     

Schnier v New York State Thruway Auth. May 18, 2022 Appellate Division, Second Department

  The claimant, an ironworker, in April 2018, during the course of his employment with nonparty Tappan Zee Constructors, LLC, in relation to an accident that occurred while he was performing work on the new Tappan Zee Bridge. Claimant and his wife filed two claims: one against the State of New York and the other against the New York State Thruway Authority (“NYSTA”). The Court of Claims granted the State and the NYSTA’s motion for certain relief and denied claimants cross-motion for leave to serve and file late claims against the defendants alleging, inter alia, violations of Labor Law §§ 240(1) and 241(6), or, alternatively, pursuant to CPLR 3102(c) for pre-action disclosure.   Labor Law § 240(1) (MAS) The Second Department reversed the Court of Claims as claimant’s delay in timely filing “was minimal” and incorrectly determined that claimants failed to sustain their initial burden of demonstrating that defendants would not be substantially prejudiced by the relatively minimal delay. Claimants showed that any delay in ascertaining actual notice of all the essential facts underling the claim was minimal and defendants were provided with an adequate opportunity to investigate the circumstances underlying the claims in light of the information contained in the accident report and medical records.   Once claimants’ initial showing on the issue of substantial prejudice is satisfied, the burden shifts to defendants to “respond with a particularized evidentiary showing that it will be substantially prejudiced if the late notice is allowed”. Here, the Court held defendants failed to come forward with such evidence.   PRACTICE POINT: In determining whether to permit the filing of a late claim, "the court shall consider, among other factors, (1) whether the delay in filing the claim was excusable; (2) whether the state had notice of the essential facts constituting the claim; (3) whether the state had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and (6) whether the claimant has any other available remedy." No one factor is deemed controlling, nor is the presence or absence of any one factor determinative. Here, defendants could not establish any of the factors and thus the late notice was deemed meritorious.    

Washington-Tatum v City of New York May 18, 2022 Appellate Division, Second Department

  Plaintiff, a New York City Transit Authority employee, was allegedly injured while working at the Number 7 subway station in Queens. According to plaintiff, while standing on the sidewalk next to a barricade, she was struck by a metal sling that fell from the elevated subway tracks.  The trial court denied plaintiffs’ motion for summary judgment under Labor Law §§ 240(1) and 241(6).   Labor Law § 240(1) (MAS) The Second Department affirmed the trial court’s decision because plaintiffs failed to eliminate triable issues of fact as to whether, at the time of the subject incident, plaintiff was engaged in an enumerated activity such as repairing, which is a protected activity under the Labor Law, or whether she was engaged in routine maintenance, which does not fall within the purview of Labor Law § 240(1).   PRACTICE POINT: Routine maintenance or “repair” work is the question. Repairs or “altering” under Labor Law § 240(1) requires making a significant physical change to the configuration or composition of the building or structure. Courts generally find that work constitutes routine maintenance where the work involves replacing components that require replacement in the course of normal wear and tear. Conversely, where something has gone awry, requiring repair work, the statute applies. Here, plaintiff could not establish on motion practice that his injury-producing work constituted a repair within the scope of § 240(1).   Labor Law § 241(6) (TPW) The Second Department affirmed on alternate grounds the denial of plaintiff’s Motion for Summary Judgment alleging violation of Labor Law § 241(6).  As reiterated by the Court, Labor Law § 241(6) imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers.  The scope of Labor Law § 241(6) is governed by 12 NYCRR 23-l.4(b)(13) which defines construction work to include "[a]ll work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures." Although maintenance work performed in connection with construction, demolition, or excavation work is included under Labor Law § 241(6), routine maintenance is not within the ambit of Labor Law § 241(6).     The Supreme Court, in denying the plaintiffs' motion, determined, in effect, that the plaintiffs had met their prima facie burden of demonstrating their entitlement to judgment as a matter of law on the issue of liability on the Labor Law § 241(6) causes of action, and that the defendants raised triable issues of fact sufficient to defeat that showing.  In contrast the Appellate Division determined that the motion should have been denied on the grounds that the plaintiffs failed to meet their initial burden as the movants.  The evidence submitted by the plaintiffs failed to eliminate triable issues of fact as to whether the injured plaintiff was performing work in the context of construction, excavation, or demolition which is protected by Labor Law § 241(6), or whether she was simply engaged in routine maintenance, which is not a protected activity under Labor Law § 241(6).  Since the plaintiffs failed to demonstrate their prima facie entitlement to judgment as a matter of law, it was unnecessary to consider the sufficiency of the defendants' opposition papers.    

Wood v Baker Bros. Excavating May 5, 2022 Appellate Division, Third Department

  Plaintiff, a concrete laborer employed by Annandale, was injured at a bridge placement project work site in the Town of Shandaken when he allegedly slipped and fell three feet from the bulkhead portion of a bridge footing. The Town contracted with Brinnier and Larios, an engineering firm, for the design of the bridge, and retained KER d/b/a Baker Brothers Excavating as the general contractor. KER subcontracted the concrete work for the project to Annandale. The trial court denied plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim.   Labor Law § 240(1) (MAS) The Third Department affirmed denial of plaintiff’s motion. Although plaintiff met his initial burden of establishing the lack of adequate safety equipment to perform work at a three-foot height differential, KER raised triable issues of fact as to the precise task plaintiff was directed to perform when the incident occurred, the required safety equipment necessary therefor and whether adequate safety devices were available, but plaintiff failed to use them.   PRACTICE POINT: To prevail on a claim under Labor Law § 240(1), a plaintiff bears the burden of showing, as a matter of law, that the statute was violated, and that the violation was the proximate cause of his or her injuries. Liability does not attach when a plaintiff is the sole proximate cause of his or her injuries, such as when (1) the safety devices that the injured worker alleges were absent were readily available at the worksite, albeit not in the immediate vicinity of the incident, and (2) the worker knew he or she was expected to use them, but (3) for no good reason chose not do so, causing the incident and (4) had he or she used the readily available safety devices, he or she would not have been injured. Here, KER sufficiently raised triable issues of fact as to whether plaintiff’s conduct in failing to use the available and appropriate safety devices was the sole proximate cause of his injuries.  

 

 New York Industrial Code Regulations (EDA)

12 NYCRR 23-1.23(d) Earth ramps and runways used by persons with or without wheelbarrows, power buggies, hand carts or hand trucks shall be at least 48 inches in width. Such ramps and runways more than four feet above the adjacent ground, grade or equivalent level shall be provided with safety railings constructed and installed in compliance with this Part (rule). The total rise of any continuous ramp or runway used by persons with or without wheelbarrows, power buggies, hand carts or hand trucks shall not exceed 12 feet unless such rise is broken by a horizontal section at least four feet in length every 50 feet.

Regulation § 23–1.23(d) establishes standards for the construction of Earth ramps and runways used by people 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(d) mandates compliance with concrete specifications  and can support a Labor Law § 241(6) claim. 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

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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]

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Michael J. Dischley

[email protected]

 

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  |  Hartford, CT  |  Niagara Falls  |  Rochester  |  Utica 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

 

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