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Volume XI, No. 8
Wednesday, July 6, 2022
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 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.
Summer is officially here, and we hope you all had a great Fourth of July.
We have a new addition to our Labor Law Team, Aarti Chandan. She is a newly admitted attorney who is joining the team and learning Labor Law the way we all did, by reading every case that comes out and helping to write the summaries.
As most of you know, the way this newsletter got started was that I wrote a summary of every case that came out for myself, just so I was sure I remembered the case and understood the meaning of the decision. When I came to Hurwitz Fine many years ago, I first read Dan Kohane’s Coverage Pointers and realized I was already doing for Labor Law cases what he was doing for coverage cases. Granted, it took me a few years to start sharing them, and a few more to develop the newsletter that became Labor Law Pointers. That is how we have trained the attorneys who make up our team; we discuss every case that comes out every month. We not only train our team, but we train our claims partners and clients to fit their specific needs. Do you have new team members on the claims side who need the basics, need an update for existing team members or specifics about the sole proximate cause defense? Just ask and we will tailor a webinar to your specific needs.
This month, we have some great photos to try and make learning about the Labor Law fun. That sentence demonstrates just how twisted and crazy I am, because I enjoy this area of the law, despite having the deck stacked against me every time.
In our first photo, you see the aftermath of a fall. The plaintiff, a framer on the new home construction site, was on the ladder provided by his employer, which somehow managed to shift under the plaintiff in spite of the reinforcements you see below causing the plaintiff to fall. Is this a Labor Law § 240(1) case?
Well, the plaintiff is a person so employed, the general contractor is clearly an appropriate defendant (as would be the owner if the home were still titled as is normal in the name of the developer), the project is construction and the injury caused by the application of gravity, so the plaintiff has a prima facie case for § 240(1). The defense would argue sole proximate cause, but not very successfully. First, anyone seeing the ladder would be forced to chuckle at the claim that it was appropriate for anything but even more importantly is the fact that the ladder shifted, causing the plaintiff to fall, which hopefully you all know by now is defacto proof that the ladder was not appropriate since it did not provide protection to the plaintiff from the hazard.
In our next offering, we have a soon-to-be plaintiff’s company which was hired by the condo association to change the bulbs in lights. His ladder was not long enough to reach the height needed to complete his job as a ladder that long could not be carried on his truck and the company had only 2 JLGs and both were in use at other sites. When he looked at the situation, he could not stop thinking, "What would my grandfather, Rube Goldberg have done?” The result you see below worked perfectly for many seconds before the ultimate failure of the design, resulting injury and a § 240(1) lawsuit. Apparently, the brilliance of the grandfather was not passed down two generations. Is it a § 240(1) case?
Plaintiff was quite simply not provided with an appropriate safety device, so summary judgment for the plaintiff. If you do not know who Rube Goldberg is, just click on the link above— he was awesome.
For our next picture, we have a soon-to-be plaintiff, a union electrician, who just did not think he could quite reach the wiring for the streetlight his employer was retained to have repaired as they were not working. When the ladder he was standing on slipped out from the base of the light standard, he fell and was injured. Does § 240(1) apply?
Plaintiff has a prima facie case under § 240(1) because he is a person so employed, engaged in repair, who sued the owner of the property, and he was injured by the effects of gravity. The defense has a sole proximate cause defense argument. The plaintiff (1) was provided with an appropriate safety device, which was (2) available, which he (3) was instructed to use or knew he was to use, but (4) misused or failed to use it for no good reason, and (5) would not have been injured if he used it in the full-open and locked position. Here, however, the plaintiff testified that his employer had never instructed him to always open the A-frame ladder. Fortunately, the defense attorney will know that as a union member, the plaintiff was instructed to always use the A-frame ladder in an open and locked position and thus all elements of the sole proximate cause defense will have been met. As an aside, the need for an expert to opine that the ladder was an appropriate safety device will be necessary. An additional avenue is available in that the plaintiff did not require any safety device to accomplish his task. While that seems a perfectly valid defense, the outcome is unfortunately not as certain as logic would dictate given the leanings of the courts to find for the plaintiff.
In our next offering, the plaintiff was hired by a hotel to refurbish a bathroom. He was working alone and set up his scaffold using the toilet to support one corner. When he was on the scaffold, the toilet broke, causing the scaffold to tilt, and him to fall. §240(1)?
Here, the plaintiff has, once again, a prima facie case of §240(1). The owner of the hotel is a valid defendant, the plaintiff is a person so employed, the project is construction, and the injury was caused by the application of gravity. The sole proximate cause defense, as always, requires the 5 necessary elements: (1) there must be an appropriate safety device, (2) the appropriate safety device must be available, (3) the plaintiff must know he was to use the safety device, (4) the available and appropriate safety device must be misused or not used for no good reason, and (5) the injury would not have occurred if the device was used appropriately. As shown in the photo, the plaintiff could not use the available safety device, the scaffold, in its proper manner and he had no other safety device available; therefore, the court would likely find that there was a good reason for the plaintiff to use the safety device in this manner, resulting in summary judgment for the plaintiff. This is another demonstration of the Draconian application of §240(1) by the court.
In this example, the plaintiff was hired to refinish the exterior of a restaurant. He did not have the appropriate ladder to do the job, so he decided to combine several ladders to allow him to reach the upper areas. Surprisingly, the ladder twisted under him, and he fell. Is this fact-pattern a Labor Law § 240(1) claim?
While the plaintiff may be brave, he is also foolhardy. The problem remains that the plaintiff did not have the appropriate safety device and used no fall protection. This is a case we would like to get in the second Department where they are starting to consider sole proximate cause on a plaintiff who set the ladder and it causes him to fall. I cannot say with any assurance that the sole proximate cause defense would work, but we are pushing in that direction. In any event, this photograph makes me weak in the knees.
That is it for this month; enjoy the cases below. My goal every month is to learn one new thing from the cases, and usually it happens. You never know when you will encounter a situation in your own case that we covered in one of the cases we analyzed. Have a great month and we will reach out again on the first Wednesday in August.
Please also 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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June 2, 2022
Appellate Division, First Department
Plaintiff was injured as he was attempting to move a 400-pound elevator platform from the front of a flatbed truck to the tailgate. The platform, which was about seven feet long, rested on a pallet jack that allegedly was too small to allow the platform to rest properly on it, causing the platform to dip and touch the flatbed. As plaintiff lifted the platform about four or five inches off the pallet jack to place a second pallet underneath to facilitate moving the platform, he felt a snap in his left arm. The trial court granted defendants’ motion for summary judgment dismissing the Labor Law § 240(1) claim and denied, as moot, plaintiffs' motion for partial summary judgment on that claim.
 Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court, denied defendants’ motion, and granted plaintiff’s motion for summary judgment because the pallet jack was a safety device that was insufficient to allow plaintiff to move the platform from the front of the flatbed truck to the tailgate. In view of the weight of the platform and the amount of force it was able to generate, even in falling a relatively short distance, the Court held that plaintiff’s injury resulted from a failure to provide adequate protection against a risk arising from a significant elevation differential.
PRACTICE POINT: This case is Runner v New York Stock Exch., Inc., 13 NY3d 599 (2009) reincarnated as the injured worker in this case was not struck by an object being hoisted or secured. The Court of Appeals in Runner explained that under Labor Law § 240(1), “the single decisive question is whether plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential”. Here, plaintiff’s injury was proximately caused by the lack of any safety device, such as a pulley, to prevent the platform from being pulled downward due to gravity caused by the significant elevation differential.
Plaintiff was injured when a 400-pound granite panel fell on him. He testified that his supervisor refused his request for a safety device. His employer testified that a baker scaffold was readily available for plaintiff's use and was maintained at the employer's office. Plaintiff testified the office was located in Maspeth, Queens, and the baker scaffold was never delivered to the jobsite in Manhattan. Plaintiff's expert concluded that a baker scaffold was inappropriate for the job, but the trial court denied plaintiff's motion for summary judgment on his Labor Law § 240(1) claim.
Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court and granted plaintiff’s motion because he submitted evidence that his injury occurred due to the absence of a safety device of the kind required by the statute. In opposition, the Court held that defendant failed to submit any evidence refuting plaintiff’s testimony that his supervisor refused his request for a safety device, and the affidavit of plaintiff’s employer was insufficient to prove that a baker scaffold was readily available for plaintiff’s use.
PRACTICE POINT: You need all five elements of the sole proximate cause (“SPX”) defense: (1) an appropriate safety device, which is (2) available for his or her use, that (3) he or she was instructed to use or knew he or she was required to use it, but (4) failed to use or misused it for no good reason; and (5) had the appropriate safety device been properly used, then the injury would not have occurred. Here, the first element was missing to the SPX defense as the injured worker was not provided with any appropriate safety device to perform his work and defendant could not refute plaintiff’s testimony that his supervisor refused his request for such an appropriate safety device.
Plaintiff was injured when a beam fell on him. His work crew was already raising the beam when he arrived. Defendant contended that plaintiff was the sole proximate cause of the accident because he failed to heed the general contractor's instruction to stop working until the proper devices were obtained. The trial court granted plaintiff's motion for summary judgment under Labor Law §§ 240(1), 200, and common-law negligence.
Labor Law § 240(1) (MAS)
The First Department affirmed the trial court's decision as defendants failed to submit any evidence to support their contention that plaintiff was the sole proximate cause of the accident because he failed to heed the general contractor’s instruction to stop work until the proper devices were obtained. Defendants did not proffer any evidence disputing plaintiff’s testimony that his work crew was already raising the beam when he arrived, and the recalcitrant worker defense is inapplicable in view of the undisputed fact that no adequate safety devices were provided to prevent the beam from falling on plaintiff.
PRACTICE POINT: The recalcitrant worker defense requires a showing that the injured worker refused to use the safety devices that were provided by the owner or employer. It has no application where, as here, no adequate safety devices were provided at all. An employer’s instructions to avoid an unsafe practice is not a sufficient substitute for providing a worker with a safety device to allow him or her to complete their work safely.
 Labor Law § 200 and Common-Law Negligence (ESB)
The First Department reversed the trial court and denied defendants’ motion on the Labor Law § 200 and common-law negligence claims as plaintiff’s injuries arose from the manner in which the work was performed, not from a dangerous premises condition. Plaintiff’s employer had control over its employees in the performance of its contractual obligations pursuant to its subcontract with the general contractor Hudson, and plaintiff failed to establish that Hudson supervised those workers. Rather, the proof supports a finding that Hudson only had general supervisory authority and lacked the requisite control over the injury-producing work to impose liability under Labor Law § 200.
Plaintiff's decedent and his coworker were killed during the construction of a public works project which entailed the connection of the Delaware and Catskill aqueducts. While the connection of the aqueducts took place on a NYC-property in Gardiner, the injury-producing work occurred on property owned by Halmar in nearby Maybrook. Participating in the work at the Maybrook site were the City of New York, general contractor Halmar, safety engineering firm Haks, and the engineering consultant, JA.
As plaintiff's decedent was conducting a concrete pour into the mockup's formwork, which was constructed by Halmar carpenters, the structure collapsed, crushing decedent and his coworker. The trial court denied the City’s motion for summary judgment dismissing the Labor Law § 200 and common-law claims as against it and on its contractual and common-law indemnification claims against the Halmar defendants and their contractual indemnity claim against Haks and JA.
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department reversed the trial court and reinstated the Labor Law § 200 and common-law negligence claims because the record established that Halmar performed defective work, in that it improperly constructed the framework by using an insufficient quantity of anchors and installing them improperly. This defective work was a proximate cause of the collapse of the formwork during the concrete pour, as was the failure to inspect the formwork before the pour occurred. The Court also found triable issues of fact as to whether the City had the authority to control the inspection of the formwork, to ensure it was properly constructed and stable before the concrete pour occurred. Thus, the City was not entitled to dismissal of the § 200 claim against it, nor was the City entitled to dismissal of the common-law negligence claims and crossclaims against it.
 Indemnity Issues in Labor Law (BFM)
The First Department found the City’s crossclaim for common-law indemnification against Halmar to be premature as it had not been established that the City was free from active negligence. To establish a claim for common-law indemnification, the one seeking indemnity must prove not only that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident but also that it was not guilty of any negligence beyond the statutory liability.
The Court held that the City was entitled to conditional contractual indemnification by Halmar since the indemnification provision only requires that the accident arose out of Halmar’s work. The indemnity provision does not run afoul of General Obligations Law § 5-322.1 because it contemplates indemnification to the “fullest extent of the law,” which means the City is not seeking indemnification for its own negligence. The Court noted that the extent to which the City is entitled to indemnification from Halmar depends on the extent to which the City’s negligence is determined to have contributed to the accident.
The City was also entitled to conditional contractual indemnification by Haks as the indemnification provision in the contract between the City and Haks also contemplates indemnification to the “fullest extent of the law.” The extent to which the City is entitled to indemnification from Haks depends on the extent to which Haks' negligence is determined to have contributed to the accident.
Additionally, the City was entitled to conditional contractual indemnification by JA. Based on the language of the Haks/JA subcontract, the indemnity provision in the City/Haks contract was incorporated by reference into the Haks/JA subcontract. Substituting “JA” for “Contractor,” the indemnity provision requires JA to indemnify the City for damages incurred “arising out of or in connection with any operations of the Contractor and/or its subcontractors to the extent resulting from any negligent act of commission or omission, any intentional tortious act, or failure to comply with the provisions of this Agreement or of the Laws.” The extent to which the City is entitled to indemnification from JA depends on the extent to which the City's negligence is determined to have contributed to the accident. While the indemnity provision is also very broad, the City may nonetheless enforce it as it contemplates partial indemnification.
Plaintiff was climbing up an A-frame ladder which suddenly shifted, causing him to fall to the ground along with the ladder. The trial court denied plaintiffs' motion for partial summary judgment on the Labor Law § 240(1) claim and denied defendants' motion for summary judgment dismissing that claim.
Labor Law § 240(1) (MAS)
The First Department reversed the trial court and granted plaintiff’s motion because plaintiff made a prima facie showing that his injuries were proximately caused by violations of Labor Law § 240(1) and defendants failed to raise an issue of fact as to whether plaintiff was the sole proximate cause of his incident. Given that the ladder had already been set up by another worker when plaintiff arrived at the site, the Court held that plaintiff’s failure to secure the ladder or ensure that it was properly set up was at most comparative negligence.
PRACTICE POINT: The issue here is the lack of any admissible evidence that plaintiff knew he was expected to use an extension ladder to perform his work to support the SPX defense because the Court disregarded a supplemental affidavit from the director of safety stating that he instructed plaintiff before the accident to use an extension ladder to access a supported scaffold. Where, as here, an after-the-fact affidavit contradicts prior deposition testimony, courts typically reject such affidavits because they only create feigned issues of fact that do not defeat a properly supported summary judgment motion.
While in the course and scope of his employment with Veranos, at a construction project located in NYC, plaintiff was injured when he fell from an elevation due to the alleged failure of the stilts that he was required to use for his work taping and compounding the drywall. The trial court granted plaintiff's summary judgment motion on his Labor Law § 240(1) claim and granted DOLP’s motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims against it and on its claims against Amick for contractual indemnification and breach of contract for failure to procure insurance.
Labor Law § 240(1) (MAS)
The First Department reversed the trial court and denied plaintiff’s motion, finding issues of fact and credibility exist as to whether plaintiff’s duties were expressly limited to work that did not expose him to an elevation-related hazard under the statute. The Court also found issues of fact as to whether plaintiff was the sole proximate cause of the accident because when he felt the stilts become unstable his “normal and logical response” should have been to request another pair rather than to keep working on them.
PRACTICE POINT: Here, the SPX evidence consisted of testimony from plaintiff’s boss that he specifically instructed him to only work on ground level and not to use stilts, which sufficiently raised triable issues of material fact to defeat plaintiff’s motion.
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed the trial court’s decision to dismiss the Labor Law § 200 and common-law negligence claims against DOLP as neither plaintiff nor Amick opposed dismissal of this claim against DOLP. Additionally, the Court held that DOLP was not negligent as it lacked actual supervision or control over the injury-producing work.
Indemnity Issues in Labor Law (BFM)
The First Department affirmed the trial court’s grant of summary judgment in favor of DOLP on its contractual indemnification claim against Amick. As DOLP was not negligent, it was not precluded from seeking contractual indemnification.
The Court further held that the contractual indemnification claim need not await a determination of Amick's negligence. The indemnification provisions in both Amick's agreement with the general contractor and directly in favor of DOLP and its affiliates do not contain a negligence trigger. Moreover, the indemnification agreement directly in favor of DOLP and its affiliates does not purport to indemnify DOLP for its own negligence but rather only requires indemnification “[t]o the fullest extent permitted by law,” which contemplates indemnification only to the extent DOLP was not negligent and therefore does not run afoul of General Obligations Law § 5-322.1.
The Court held that the trial court should not have granted DOLP summary judgment on its claim against Amick for breach of contract for failure to procure insurance. To the extent Amick had no written indemnity agreement with plaintiff's employer, as its policy required to provide coverage here, it breached its obligation to procure insurance in favor of DOLP. However, despite any such breach, summary judgment on the claim was premature because DOLP had not demonstrated that it sustained a loss as a result thereof.
Same facts as the prior Winkler case, only the trial court denied JA’s motion for summary judgment dismissing the complaint, crossclaims, and third-party claims for common-law indemnification, contribution, and apportionment, and, in effect, granted plaintiff's cross-motion for leave to renew her motion for partial summary judgment on the Labor Law § 240(1) claim against JA, and, upon renewal, granted plaintiff partial summary judgment on liability against JA on that same claim.
Labor Law § 240(1) (MAS)
The First Department affirmed the trial court’s order denying JA’s motion and granting plaintiff’s motion because JA had the authority to supervise and control the injury-producing work and thus was liable as a statutory agent under Labor Law §§ 240(1) and 241(6). All the testimony and evidence demonstrated that both JA and Haks had safety concerns about the work being performed and had the authority to stop the work on the day of the incident and that, in fact, JA exercised that authority before but nonetheless allowed the JA and Haks employees to proceed with the injury-producing work.
PRACTICE POINT: A defendant is liable under the Labor Law as a “statutory agent” of either the owner or the general contractor where it is shown that defendant had the “authority to supervise and control” the injury-producing work. The determinative factor is whether defendant had the right to exercise control over the work, not whether it actually exercised that right (as under Labor Law § 200). Where the owner or general contractor delegates to a third-party the duty to conform to the requirements of the Labor Law, then that third party also becomes the statutory agent subject to liability.
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed the trial court’s decision not to dismiss the Labor Law § 200 and common-law negligence claims against JA because it actually exercised supervisory control over the injury-producing work.
Indemnity Issues in Labor Law (BFM)
The First Department held that JA was not entitled to summary judgment dismissing the common-law indemnification, contribution, and apportionment crossclaims as against it as the City and the DEP were only found to have been passively negligent by virtue of Labor Law sections 240(1) and 241(6). Since the trial court found both Haks and Halmar to have been actively negligent, JA was entitled to summary judgment dismissing Halmar’s crossclaim, and Haks’s claims for common-law indemnification.
However, the Court permitted Halmar’s and Haks’s claims for contribution and apportionment to proceed and denied summary judgment to JA dismissing the City and DEP’s crossclaim for contractual indemnification, and Haks’s crossclaim and third-party claim for that relief, based on a plain reading of the indemnification clause in Haks’s contract with the DEP, which applied to JA under the indemnification clause in Haks’s subcontract with JA.
Plaintiff allegedly fell from a height, through an unguarded side of a scaffold, after he and his coworker attempted to manually move it along a building’s exterior façade. The trial court granted plaintiff's motion for partial summary judgment on his Labor Law §§ 240(1) and 241(6) claims and granted Euclid’s cross-motion for summary judgment on its crossclaims against Henry for contractual and conditional common-law indemnification.
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s award of summary judgment to plaintiff. His deposition testimony and expert evidence established that defendants violated the statute, and that the violation proximately caused his injuries. Defendants’ reliance on testimony of plaintiff’s employer that plaintiff’s coworkers informed him that plaintiff was in a rush and might have deliberately jumped from the platform, constituted out-of-court, nonprobative hearsay statements, and plaintiff’s statement purportedly made to the subcontractor’s president at the hospital is too vague to qualify as an admission against interest.
PRACTICE POINT: Falling off the side of a scaffold while attempting to manually move it is exactly the type of case and incident the Labor law was designed to protect against. Because the scaffold failed to protect plaintiff from falling, he established that the statute was violated and that the violation proximately caused his injuries, resulting in summary judgment to plaintiff.
Indemnity Issues in Labor Law (BFM)
The First Department held that Euclid was entitled to contractual indemnification from Henry as the indemnification provision in the agreement between Euclid and Henry contained broad language requiring Henry to indemnify Euclid for any liability arising from Henry’s negligence or that of its subcontractors, including BSK (plaintiff’s employer), and no evidence was offered to indicate Euclid was in any way responsible for the accident. As Euclid was entitled to contractual indemnification, its crossclaim against Henry for common-law indemnification was academic.
In the underlying personal injury action, the injured worker was only replacing the lightbulbs and light fixtures, using the existing wiring, to restore the lights to their former condition. Plaintiffs denied coverage for the claim based on a policy exclusion for maintenance work and the trial court denied the parties’ motions for summary judgment.
Labor Law § 240(1) (MAS)
The First Department affirmed the trial court’s finding that the injured worker’s activity at the time of his injury constituted maintenance as changing a lightbulb is not the erection, demolition, repairing, or altering of a building or structure under Labor Law § 240(1). The evidence showed the injured worker was only replacing lightbulbs and light fixtures, and using the existing wiring, to restore the lights to their former condition.
PRACTICE POINT: Court routinely dismiss claims under Labor Law § 240(1) that involve the replacement of ballast in light fixtures because such work qualifies as routine maintenance, and not repair. Routine maintenance is not work protected by the statute as it involves replacing components that require replacement in the course of normal wear and tear. Early investigation can be crucial in determining whether the injury-producing work qualifies as routine maintenance or repair and our 24-hour response team is available anytime for you to investigate claims day or night and on weekends too, just give David a call on his cell (which is in his email signature)!
Tutor was both the general contractor on a project to build a 50-story building, and a concrete subcontractor. Nonparty B&R employed plaintiff as a lather foreman for the project. Plaintiff was responsible for his crew’s work installing rebar to reinforce concrete beams, slabs, and columns. On the day of his accident, plaintiff was supervising about six to eight B&R workers. He needed to carry rebar and install it on the 40th floor of the building. He and some of his crew members climbed a ladder to work on an elevated level called a “gantry,” which had a plywood floor. It was continuously raining on the day and at the time of the accident. Plaintiff testified the rain immediately caused the plywood to become slippery, and he lowered a rebar about five feet down toward a worker on the lower level, when both of his boots slipped, causing him to fall. The trial court granted plaintiff's motion for partial summary judgment on the Labor Law § 241(6) claim as based on a violation of Industrial Code § 23-1.7(d).
 Labor Law § 241(6) (TPW)
The First Department reversed the trial court’s decision to grant summary judgment. Plaintiff moved under Industrial Code § 23-1.7(d), contending rain caused the plywood to become slippery, resulting in his fall. The Court, however, held that the deposition testimony raised issues of fact as to whether plaintiff’s injuries were proximately caused by a slippery condition in violation of Industrial Code or whether the sole proximate cause was plaintiff’s decision, as a foreman, to work on a plywood surface exposed to the elements while it was raining. Notably, the record was devoid of evidence as to who had the authority to stop work or who had a say in ceasing work due to a safety condition. Additionally, the parties did not submit any objective or scientific evidence as to the extent of the rain at the time plaintiff fell. Considering the conflicting testimony and lack of evidence noted, the Court held the issues of fact remain as to whether it was acceptable to work under such slippery conditions, precluding resolution on plaintiff’s motion.
Plaintiff, an employee of Accurate, was installing a water heater at a construction site owned by Kingswood and leased to TJX. Schimenti was the general contractor. At trial, plaintiff testified that as he was installing the water heater, he stepped down the ladder, when his foot hit the ground and allegedly slipped underneath him. He did not see what he fell on before he fell. His coworker handed him the pencil rod after he fell. A portion of an incident report prepared by Schimenti, stated that, “When climbing down the ladder the individual stepped on a piece of pencil rod, rolled his ankle and fell backwards and hit his head” was excluded from evidence as inadmissible hearsay. A judgment was entered on a jury verdict, dismissing the Labor Law §§ 241(6) and 200 claims against Schimenti.
Labor Law § 241(6) (TPW)
The Second Department affirmed the trial court’s finding because at trial, the superintendent of the project testified that the incident report was based upon the statements of plaintiff’s coworker, who the superintendent testified was plaintiff’s plumbing foreman. Although the superintendent described plaintiff’s coworker as a foreman, plaintiff claimed that he himself was the foreman and his coworker was in fact his apprentice. Plaintiff testified that both he and his coworker received their instructions from Ken Crisso, Jr. or Sr. of Accurate, and his coworker was not affiliated with Schimenti. Since neither Ken Crisso Jr. nor Sr. testified at trial, the Court held that plaintiffs failed to establish that the coworker had a business duty to provide the information at issue. Accordingly, the coworker’s statement in the incident was properly excluded.
PRACTICE POINT: The general rule is that a statement in a business record made by an outsider to the business enterprise is inadmissible as a business record because it “lacks the inherent trustworthiness or indicia of reliability”. For the statement of plaintiff’s coworker to be admissible as a business record for its truth, the coworker must have had personal knowledge of the information and be under a business duty to report the information “within the course of regular business conduct,” or the statement must satisfy another hearsay exception. Here, plaintiffs did not prove at trial that the coworker had a business duty to provide the information at issue and thus it was correctly excluded from evidence.
Plaintiff was replacing a compressor on an ice machine in a building on property operated by defendant when he allegedly slipped and fell on ice in an alleyway on the property near the rear of the building. The trial court granted defendant’s motion for summary judgment dismissing the Labor Law § 241(6) claim predicated on a violation of Industrial Code § 23-1.7(d) and denied plaintiff’s cross-motion for summary judgment on that same claim. The trial court also denied defendant’s motion for summary judgment dismissing the common-law negligence and Labor Law § 200 claims against it.
Labor Law § 241(6) (TPW)
The Second Department revised that portion of the trial court’s decision addressing the alleged violation of Labor Law § 241(6) as predicated upon 12 NYCRR 23-1.7(d). On review of defendant’s own submissions, the Court held that defendant failed to eliminate triable issues of fact as to whether the alleged work at issue fell within the ambit of activities protected by the statute. Thus, that branch of defendant’s motion should have been denied, “regardless of the sufficiency of the opposing papers”. The Court further held that the trial court properly denied that branch of plaintiff’s cross-motion on the issue of liability on that same Industrial Code section as plaintiff also failed to eliminate triable issues of fact as to the existence of any ice in the alleyway as alleged and, if so, whether any violation of 12 NYCRR 23-1.7(d) was a proximate cause of the fall.
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed the trial court’s denial of defendant’s motion because it failed to establish that it did not have actual or constructive notice of the alleged dangerous condition, without regard to the sufficiency of the opposition papers.
Plaintiff was allegedly injured on defendant’s property when he fell from a ladder owned by defendant while painting the exterior of a detached garage that had been converted into a meditation room. Defendant is a religious organization which owns adjoining properties. One property contains a Buddhist Temple. The building that plaintiff was painting is located on the other property, which also contains a house that is used by monks as a residence. The trial court denied plaintiff's motion for summary judgment on his Labor Law §§ 240(1) and 241(6) claims and denied defendant's cross-motion for summary judgment dismissing the complaint.
Labor Law § 240(1) (MAS)
The Second department reversed the trial court and dismissed the Labor Law §§ 240(1) and 241(6) claims based on the homeowners’ exemption. The proof showed that defendant did not direct, or control plaintiff’s work and was the owner of a one-family dwelling to which the meditation room was an accessory. Defendant was thus entitled to the protections of the homeowners’ exemption despite being a religious organization.
PRACTICE POINT: The homeowner’s exemption to liability under Labor Law § 240(1) is available to “owners of one and two-family dwellings who contract for but do not direct or control the work” and who demonstrate that the property was intended to be used solely for residential as opposed to commercial purposes.
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed the trial court’s denial of defendant’s motion because defendant failed to establish that it lacked actual or constructive notice of the allegedly dangerous condition regarding the ladder.
Plaintiff was allegedly injured when he fell from a ladder while performing certain work on a barn located on property in Pound Ridge. Prior to the completion of the parties' depositions, defendants separately moved for summary judgment dismissing the complaint insofar as asserted against each of them, which were denied by the trial court.
Labor Law § 240(1) (MAS)
The Second Department affirmed denial of the motions, but without prejudice subject to renewal pending the completion of discovery. A party should be afforded a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment. Here, the Court held that plaintiff was entitled to conduct discovery which may result in the disclosure of relevant information.
PRACTICE POINT: CPLR § 3212(f) permits a party opposing a summary judgment motion to obtain further discovery when it appears that facts supporting the position of the opposing party exist but cannot then be stated. A party seeking denial of a summary judgment motion based on CPLR § 3212(f) “is required to demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant”. At the time plaintiff filed the motion in this case, no discovery had taken place, and depositions of the parties remained outstanding, and plaintiff was thus entitled to conduct discovery which may result in disclosure of relevant information concerning the relevant issues raised in defendants’ motions that was necessary for plaintiff to oppose them.
Plaintiff allegedly was injured while repairing the roof of a detached garage on premises owned by defendant when part of the roof collapsed, and plaintiff fell to the ground. The premises were comprised of two adjacent lots, which were taxed separately and had two separate addresses. The garage was located on one lot and defendant’s home on the other. The trial court granted defendant's motion for summary judgment dismissing the complaint because defendant was entitled to the homeowners’ exemption.
Labor Law § 240(1) (MAS)
The Second Department affirmed dismissal of the Labor Law §§ 240(1) and 241(6) claims because the work was related to the residential use of defendant’s home, and she did not direct or control the injury-producing work. The fact that the garage was located on a legally separate lot adjacent to the lot on which defendant’s home was located does not defeat the exemption in this case because the garage functioned as an “extension of the dwelling”, the repairs had “substantially residential purpose”, and defendant treated the two lots as one property.
PRACTICE POINT: For a defendant to receive the protection of the homeowners’ exemption, he or she or it must satisfy two prongs: (1) the work was conducted at a dwelling that is a residence for only one or two families; and (2) defendant did not direct or control the injury-producing work. Here, defendant established both prongs and thus was entitled to the protections of the homeowners’ exemption, resulting in dismissal of the Labor Law §§ 240(1) and 241(6) claims.
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed the trial court’s dismissal of these claims against defendant because she established that that she neither created nor had actual or constructive notice of any structural deficiency in the garage roof. The presence of a leak in the roof of the garage did not give defendant actual or constructive notice of a structural deficiency in the roof because any such deficiency was “latent and would not be discoverable upon reasonable inspection”. Additionally, plaintiff was injured “through a dangerous condition which he had undertaken to fix”.
 New York Industrial Code Regulations (EDA)
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12 NYCRR 23-1.24(a)(1)(i)Work on Roofs, General Requirements, Roofing Brackets, Required Use Roofing brackets shall be used whenever work is to be performed on any roof having a slope steeper than one in four inches unless crawling boards or approved safety belts are used in compliance with this Part (rule).
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Regulation § 23–1.24(a)(1)(i), requiring that roofing brackets be used “whenever work is to be performed on any roof having a slope steeper than one in four inches unless crawling boards or approved safety belts are used”, is sufficiently specific to support a Labor Law § 241(6) claim.
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Landon v Austin, 88 AD3d 1127, 931 NYS2d 424 [3d Dept. 2011]
Tucker v Edgewater Const. Co., Inc., 281 AD2d 865, 722 NYS2d 194 [4th Dept. 2001].
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A question of fact existed as to whether § 23–1.24(a)(1)(i) was violated where “work [was] to be performed” on the roof surface from which plaintiff fell and whether the roof surface had “a slope steeper than one in four inches” John v Klewin Bldg. Co., Inc., 94 AD3d 1502, 943 NYS2d 812 [4th Dept. 2012].
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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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