 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.
Some good cases this month, even as the summer winds down and the courts have not had very much to say. Hope everyone is enjoying the summer. Do not let the glass-half-empty crowd discourage you. There’s lots more great weather left in the year. So, get outside and have some fun.
I do have something of a problem right now as, for many years, I have only gotten my hair cut for a trial, a wedding, or due to spousal insistence. I did make an exception during Covid. I have had several trials settle over the past year and thus, I am starting to look like a bit like a hippie . . . ok, more than just a bit. Reactions have been strong, either in support or harshly critical; and those are just my friends. I really need a trial to go forward. My barber of 25 years has disappeared, and I am concerned that, like Samson, my powers, such as they are, may disappear with my hair when I finally get it cut.
In our first video of the month, we have a frustrated gymnast, hired to work as a framer on a construction site, for a new home being built on spec, who falls through a piece of plywood in the hereinafter depicted manner. § 240(1)?
The plaintiff does seem to meet the prime facie elements. He is a person so employed. He is working, doing construction on a structure. The owner and GC would be appropriate defendants, as the house is being built on spec, implicating the owner and the GC are fair game, and the injury appears to be based on a height differential. The argument the defendant will have to make is that the actions of the plaintiff have nothing to do with the actual work the plaintiff is there to perform. His decision to do a back flip off a stack of wood removes him from the group of workers the statute is designed to protect. Summary judgment for the defendant; hopefully. Sometime the courts defy logic, but to allow this would seem a bit extreme.
In the second video of the month, the owner of this commercial building needs a new roof. He has asked several roofing companies to provide him with an estimate. Here, the representative of a roofing company is going to look at the roof and provide an estimate for the work. As he goes to climb the ladder set up by the building owner, the ladder slides and he falls, injuring both of his heels. § 240(1)?
The plaintiff has an issue that will preclude him from having a valid § 240(1) case. The plaintiff was not a person so employed at the time of the accident. Rather, he was simply attempting to obtain paying work. When an individual is injured while inspecting and not actually doing work, the Labor Law is not applicable, and summary judgment for the defendant. The same would hold true for a person purely inspecting work for compliance with a specific standard or specification.
The next picture was sent to me by no less than five people, all of whom saw it on Facebook. The plaintiff had been hired by the owner of the pizza parlor to install a new light over the sign. The area he needed to reach was just a bit too high for the ladder he brought so he decided to stack a smaller ladder on top. Always concerned with safety he put on knee pads in case of a fall. When the ladders shifted, he fell and hurt his knee. § 240(1)?
Plaintiff is a person so employed. He is engaged in a covered project. The owner of the pizzeria is a valid defendant, and the injury is caused by a height differential. The argument is that the plaintiff set up the ladders himself and thus was the sole proximate cause of the accident. Unfortunately, that argument, while logical, will likely fail as all five elements of the sole proximate cause defense need to be present. The plaintiff needs to have 1) an appropriate safety device; which is 2) available; which the plaintiff 3) was instructed to use or knew he was expected to use; which 4) the plaintiff fails to use or misuses; 5) for no good reason. Looks like summary judgment for the plaintiff, though the Second Department is slowly moving toward holding the plaintiff responsible for setting up his own ladder improperly.
In our next offering, the plaintiff is on an extension ladder, painting the concrete wall of an office building. As the plaintiff climbed up the ladder, it became obvious that the length of the ladder was not sufficient to reach high enough, so the foreman directed the plaintiff to put the ladder on top of the scaffold. Once they did that, the ladder in that position was moving the scaffold backwards, so they had a man push on the scaffold to keep it from moving. Then the ladder, given the angles involved, started to move on the scaffold. So, again, the foreman had another worker hold the ladder still on the top of the scaffold. Then, the story goes, they drew straws to see who had to climb the ladder to do the painting. Shockingly to all, as the plaintiff got to the top of the ladder, the pressure was too much, and the men were not able to hold the ladder from moving, and the plaintiff fell. § 240(1)?
Plaintiff has a prima facie case and, given that the ladder shifted, causing him to fall, this is a textbook § 240(1) case. The learning point here is that a person holding a ladder, or a scaffold for that matter, is never a safety device.
Finally, we have a situation where the owner of an office building has hired a tree service to cut down a tree, because it has had a branch break off, and he is now worried that further branches could fall on the building or cars parked there. As the plaintiff is cutting a branch off the tree, the ladder he is standing on, which was set up by his boss shifts, causing him to fall and become injured. § 240(1)?
The issue here is that a tree is not a structure and thus, there is no valid § 240(1) claim.
That’s it for this month. As always, please feel free to reach out to us with any questions Labor Law or Risk Transfer related.
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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August 24, 2023
Appellate Division, First Department
The owner of the premises, Seward Park, on the recommendation of Fred Smith Plumbing, hired Onsite Construction, an excavation company, to perform an exploratory excavation to ascertain whether a leak was emanating from the building’s external water pipes. Onsite subcontracted the excavation work to nonparty, Cisney, which employed plaintiff as a laborer. The excavation was performed by a team of laborers who dug a trench, by hand, using shovels. Excavated dirt was removed from the trench and placed in a pile at the top of one of the earthen walls. Plaintiff testified the water pipes were twelve feet below ground. The dimensions of the trench in the area where plaintiff was digging were such that only one worker could occupy that area.
Plaintiff was instructed to dig around the pipes to expose them. As he knelt to perform that work, leaking water from one or both of the pipes poured into the trench, covering his work boots. He estimated that, at that point, the trench was 12-feet deep, 9 ½-feet long, and 3-feet wide. Suddenly, the right wall of the trench caved in, burying him. He testified that shoring was not employed to secure the trench walls. The trial court denied plaintiff's motion for summary judgment under Labor Law § 240(1) and granted Seward Park’s and Onsite Construction’s cross-motions to dismiss that claim.
 Labor Law § 240(1) (MAS)
On appeal, Plaintiff argued that, under Wilinski and Runner, where the base of an object that strikes a worker is at the same level as the worker, liability under Labor Law § 240(1) attaches if there was an elevation difference between the top of the object and the height of the worker, and the worker was not properly protected from a falling object that required securing. Because the base of the earthen wall that collapsed was at the same level as he was, plaintiff contended that there was a significant elevation difference between the top of the wall and the kneeling plaintiff, and that the wall collapsed due to the force of gravity and the absence of a protective device.
The First Department agreed with plaintiff and reversed the trial court, finding that his injuries were the direct consequence of Seward Park’s and Onsite’s failure to provide adequate protection against a risk arising from a physically significant elevation differential. The Court determined that the well over one-foot height differential between the top of the wall and the top of plaintiff's head, could not be characterized as de minimus considering the extent of that differential, the amount of dirt that poured into the trench when the right wall suddenly collapsed, and the amount of force the dirt was capable of generating.
The Court also noted that protective equipment of the kind enumerated in or contemplated by the statute - braces - were designed to avert the type of hazard encountered by plaintiff.
PRACTICE POINT: It is hard to argue with the First Department’s determination that Labor Law § 240(1) applies when there exists a specific, enumerated safety device designed to prevent the exact type of harm suffered by the plaintiff.
On May 27, 2016, defendants purchased the home. On February 25, 2017, defendants entered into a contract with nonparty, Behan, for renovation work at the home. During the course of this renovation work, plaintiffs were injured when scaffolding on which they were standing collapsed. The trial court granted defendants’ motion for summary judgment dismissing the complaint against them.
Labor Law § 240(1) (MAS)
The Second Department affirmed dismissal as defendants demonstrated that they were the owners of a one-family dwelling and that they did not direct or control the injury-producing work and thus were subject to the protections of the homeowners’ exemption to liability under Labor Law § 240(1).
PRACTICE POINT: Owners of one- and two-family dwellings who contract for, but who do not direct or control, the injury-producing work are exempt from liability under § 240(1). This homeowners’ exemption is also applicable to a second home, so long as the owner does not use it exclusively for commercial purposes. Here, defendants were entitled to dismissal of plaintiff’s complaint because they established that, at all relevant times, the home was not used exclusively for commercial purposes.
 Labor Law § 241(6) (TPW)
The Second Department affirmed dismissal of the Labor Law § 241(6) claim based on the homeowners’ exemption, as discussed above.
 Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department also affirmed dismissal of the Labor Law § 200 and common-law negligence claims. Here, where plaintiff's injuries arose from the manner in which the work was performed, the Court held that defendants established that they did not possess the authority to supervise or control the means and methods of the work (the same proof used to trigger the homeowners’ exemption).
Plaintiff was injured when he fell through a hole on the 18th floor of a construction site. At the time of the incident, he was preparing to load a window onto a dolly, when he stepped on a piece of plywood covering the hole, which collapsed. On reargument, the trial court vacated its prior order denying plaintiff's motion for partial summary judgment on the issue of liability against Racanelli Construction, X & Y Development Group, and Fleet Financial, and granted that motion.
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s decision because plaintiff established that he was exposed to an elevation risk within the ambit of Labor Law § 240(1) and that the inadequately covered hole was a proximate cause of his injuries. In opposition, the Court found that defendants failed to raise a triable issue of fact, as plaintiff’s failure to attach his harness to an anchor was not the sole proximate cause of his injuries, as there was no evidence that he was required to use his harness in the interior area of the 18 th floor where the incident occurred.
PRACTICE POINT: A piece of plywood covering a hole at a construction site, which collapsed when a worker stood on it, is no different than a scaffold or ladder that suddenly collapsed for no apparent reason under Labor Law § 240(1), as it creates a presumption that the plywood covering did not afford proper protection at the time of the incident.
Labor Law § 241(6) (TPW)
The Second Department affirmed the trial court’s decision to grant plaintiff's motion under Labor Law § 241(6) based on a violation of Industrial Code (12 NYCRR) § 23-1.7(b)(1)(i) “which mandates that holes or 'hazardous openings' at construction sites 'into which a person may step or fall' be 'guarded by a substantial cover fastened in place or by [the installation of] a safety railing'". Accordingly, the Court held that plaintiff established defendants’ violation of Labor Law § 241(6) by failing to provide a substantial cover over the hole. In opposition, defendants failed to raise a triable issue of fact as to whether that section was violated.
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department modified the trial court’s decision and denied plaintiff’s motion for summary judgment as to Labor Law § 200 and common-law negligence. In this dangerous condition case, the Court held that plaintiff failed to offer any evidence demonstrating that defendants either created the dangerous condition by installing the allegedly defective plywood cover or had actual or constructive notice that the allegedly defective plywood cover posed a danger to plaintiff. Accordingly, on reargument, the trial court should have adhered to its prior determination denying the motion.
Plaintiff, an HVAC technician employed by nonparty, TEC Systems, was using a ladder to replace a CO2 sensor on defendant’s premises when a hot water pipe burst, causing her to fall from the ladder. The trial court denied defendant’s cross-motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims.
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed the trial court’s denial of defendant’s motion as to Labor Law § 200 and common-law negligence. In this hazardous condition case, the Court held that defendant failed to establish the alleged deteriorating condition of a pipe coupling was latent and not discoverable upon a reasonable inspection of the pipes and insulation around the pipes. Further, because defendant did not have any system in place to inspect the pipes, couplings, or insulation around the pipes to see if there were any signs of corrosion or deterioration, the Court held defendant failed to demonstrate that, had it conducted a reasonable inspection, the alleged condition would not have been discoverable. Accordingly, there was a triable question of fact with regard to constructive notice.
Plaintiff was injured on a construction site owned by Nows the Time, when a 10-foot-long metal pipe fell on his head. The trial court granted E & J’s motion for summary judgment dismissing the complaint against it and denied plaintiff's cross-motion for summary judgment on the Labor Law § 240(1) claim asserted against defendants.
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s decision as E & J established that it was neither the general contractor nor an agent subject to liability under Labor Law § 240(1), and it did not have control over the construction site, or the authority to exercise supervision and control over the injury-producing work. The fact that E & J was listed as the general contractor on work permit applications and that Cassis and an E & J employee may have known one of the alleged subcontractors, without more, was insufficient to raise an issue of fact as to whether E & J was the general contractor.
Plaintiff also testified at his deposition that he did not see the pipe before it hit him, did not know where the pipe came from, and did not know whether the pipe was necessary for the work being performed. Thus, the Court held that plaintiff failed to establish that the pipe’s fall was proximately caused by a violation of the statute. Since the Court held that plaintiff failed to meet his initial burden as the moving party, the burden never shifted to defendants to raise a triable issue of fact.
PRACTICE POINT: Because the injured worker did not see the pipe before it struck him, did not know where the pipe came from, and did not know whether the pipe was necessary for the work being performed, he could not establish that his injuries were proximately caused by the absence of or inadequacy of a safety device, or other violation of the statute.
Plaintiff was injured while working on a construction project located at premises owned by 1054 Bushwick, for which All Purpose acted as the general contractor. He sued them under Labor Law §§ 240(1), 241(6), and 200. Bushwick and All Purpose commenced a third-party action against plaintiff's employer, Superpower, seeking contractual indemnification and contribution. Twenty-one months later, plaintiff filed a note of issue. However, plaintiff's counsel acknowledged in an affirmation of compliance that there was still outstanding discovery in the main action. The trial court granted Superpower’s motion to sever the third-party action on the ground that substantial discovery was outstanding in the third-party action.
Labor Law § 240(1) (MAS)
The Second Department reversed the trial court and denied the motion to sever because the third-party action raises factual and legal issues in common with the main action, and the interests of judicial economy and consistency of verdicts will be served by having a single trial. There was also no evidence that a single trial would result in prejudice to a substantial right of any party.
In August 2018, plaintiff was injured while working on a construction project at premises owned by Rennew. In September 2018, plaintiff brought suit against, among others, the owner, alleging violations of Labor Law §§ 240(1), 241(6), 200, and common-law negligence. In August 2019, the owner commenced a third-party action against LG, plaintiff's employer, seeking indemnification and contribution. After the sole owner of LG was deposed, plaintiff disclosed two audio recordings he made of certain conversations he previously had with LG’s owner. The trial court denied LG’s motion, pursuant to CPLR § 3126, to preclude any party from offering the two audio recordings as evidence at trial since plaintiff, in failing to disclose these audio recordings until after the owner was deposed, violated CPLR § 3101(i).
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s decision to deny LG’s motion to preclude, as the record did not demonstrate that plaintiff’s failure to disclose the audio recordings was willful and contumacious, but rather, that the delay was caused by plaintiff’s injuries, which impacted his memory, together with the fact that LG was added as a party about one year after the recordings were made.
Plaintiff, an employee of Protection One Alarm and Protection One-Systems, was allegedly injured when he fell from a ladder while working in a building purportedly owned by Mercer and managed by Madison. In June 2020, plaintiff filed his suit alleging violations of Labor Law §§ 240(1), 241(6), and 200. In November 2020, prior to any depositions, plaintiff moved for summary judgment under Labor Law § 240(1) and to strike certain affirmative defenses, which motion was granted by the trial court.
Labor Law § 240(1) (MAS)
The Second Department reversed the trial court’s decision because plaintiff failed to demonstrate either that Madison was the managing agent for the building or that Madison supervised or controlled any of the work being performed in the building.
PRACTICE POINT: An agency relationship for purposes of Labor Law § 240(1) arises only when work is delegated to a third-party who obtains the authority to supervise and control the injury-producing work. Here, plaintiff’s proof failed to establish either that Madison was the managing agent for the building or that it supervised or controlled the injury-producing work.
Plaintiff allegedly was injured while installing camera systems on UNF’s property. According to plaintiff, he set up a 24-foot extension ladder against a light pole, with the base of the ladder resting on top of small, “landscaping” rocks. While he was on the ladder, “the rocks gave way and then shifted the ladder,” causing him to fall. The trial court granted defendants’ summary judgment motion on the Labor Law 240(1) claim.
Labor Law § 240(1) (MAS)
The Second Department reversed the trial court and denied defendants’ motions because they failed to establish that plaintiff’s actions were the sole proximate cause of his injuries. Although plaintiff testified that he could have placed the ladder in the driveway, where it would not have been resting on the rocks, he further testified that “it wasn’t safe for me to place it there, because that’s where trucks drive in.” The Court also held that defendants failed to submit evidence that plaintiff’s injuries could have been prevented if plaintiff had secured the ladder to the light pole with ties, which were available at Protection One’s depot, not the job site. Accordingly, the trial court should have denied those branches of defendants’ motions seeking dismissal of the Labor Law § 240(1) claim.
PRACTICE POINT: An injured worker may be the sole proximate cause of his or her own injuries when he or she (1) was provided with appropriate and available safety devices; (2) he or she knew the safety devices were available and was expected to use them; (3) but, for no good reason, chose not to use or misused the safety devices; and (4) had he or she not made that choice, the injury would not have occurred. Here, defendants could not establish the third prong, as plaintiff had a good reason for not setting up the ladder in the driveway and was not provided with ties to secure the ladder to the light pole. Remember that if one prong of the sole proximate cause defense is missing, then it is not a viable defense.
Plaintiff, a building inspector for the Village of Port Washington North, was injured while conducting an inspection of a work site, when he lowered himself into an open excavation, and then allegedly tripped and fell after stepping on the ground inside the excavation. The trial court granted defendant's motion for summary judgment dismissing the Labor Law §§ 240(1), 241(6), and 200 claims.
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s decision as defendants established that plaintiff was not within the class of person subject to the protections of Labor Law § 240(1). Defendant submitted plaintiff’ s deposition transcript, which demonstrated that neither plaintiff, nor his employer, had been retained to perform any work on the subject project, and that plaintiff allegedly was injured performing a visual inspection of an excavation after the property had been “fully excavated.”
PRACTICE POINT: We analyze every Labor Law case using the same four criteria: (1) appropriate plaintiff; (2) appropriate defendant; (3) appropriate project; and (4) elevation-related/gravity-related risk. In this case, the building inspector is not an “appropriate plaintiff” because he was neither permitted or suffered to work on a building or structure (his inspection occurred after the excavation was completed) nor was he hired by the owner, contractor or their agent (instead he was working in his role as building inspector for the Village).
Labor Law § 241(6) (TPW)
The Second Department affirmed the trial court’s decision as it pertains to the Labor Law § 241(6) claim for the same reasons as the Labor Law § 240(1) claim as plaintiff was not within the special class of individuals afforded protection under the Labor Law.
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department also dismissed the Labor Law § 200 claim for the same reasons as the Labor Law §§ 240(1) and 241(6) claims.
Plaintiff was fixing a garage door on defendants’ premises, which was operated as an automobile dealership. The ladder plaintiff was using slipped, allegedly causing him to fall. The trial court, on reargument, granted defendants’ motion for summary judgment dismissing the Labor Law §§ 240(1), 241(6) but denied their motion under § 200 and common-law negligence claims.
Labor Law § 240(1) (MAS)
The Second Department reversed the trial court and denied defendants’ motion for summary judgment because the evidence raises a triable issue of fact as to whether plaintiff was involved in a repair or routine maintenance at the time of the incident. Plaintiff testified that when his incident occurred, he was attempting to remove a bearing plate to replace a broken spring on the garage door. One of the bolts of the bearing plate was stripped, so he had to widen the hole so that it would accept another bolt. In opposition to defendants’ motion, plaintiff submitted an affidavit that further described these steps in more detail. The Court rejected defendants’ argument that plaintiff’s affidavit created feigned issue of fact, since the affidavit was not inconsistent with his prior deposition testimony.
PRACTICE POINT: Labor Law § 240(1) applies where an employee is engaged “in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure,” but does not apply to routine maintenance. Here, plaintiff’s testimony and affidavit regarding his repair of the broken spring on the garage door and the process of widening the hole so he could replace the stripped bolts of the bearing plate was enough to convince the court that his work involved more than simply replacing components in the course of normal wear and tear of the garage door.
Labor Law § 241(6) (TPW)
The Second Department also reversed the trial court’s decision and found triable issues of fact under Labor Law § 241(6), necessitating denial of defendants' motion for summary judgment. Construction work, as it pertains to Labor Law § 241(6), is defined in 12 NYCRR 23-1.4 as including the “repair, maintenance, painting or moving of buildings or other structures.” Here, the Court held there were question as to whether Labor Law § 241(6) was violated by plaintiff’s attempted removal of a bearing plate to replace a broken spring on the garage door.
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed the denial of defendants’ motion as to Labor Law § 200 and common-law negligence. In this case, the complaint alleged a dangerous or defective condition on thew worksite, rather than “means and methods.” The Court held defendants failed to demonstrate that they neither created, nor had actual or constructive notice of, the dangerous or defective condition. There was evidence that automotive services were being performed on defendants' premises by its employees, including changing oil filters and disposing the used oil filters into oil drums, and that oil was dripping from a spigot attached to a barrel close to the location of plaintiff's incident. The Court held this evidence created a question of fact as to whether defendants created the hazard or had notice of such condition without remedying it within a reasonable amount of time. Defendants raised the contention that oil and grease on the floor of the defendants' premises was incidental to its use, but because it was raised for the first time in reply, that argument was not considered by the Court.
Plaintiff was injured after a scaffold he was working on collapsed at a construction project on property owned by Nehemiah Spring. The trial court denied plaintiff's 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, determining that there were triable issues of fact under Labor Law § 240(1). Defendants submitted evidence that the scaffold at issue had been constructed properly and plaintiff may have altered the condition of it by removing the nails securing the plank on which he was standing “in such a manner as to create the condition causing its collapse.”
PRACTICE POINT: When an injured worker alters a scaffold in such a manner as to create the condition causing its collapse, his or her conduct may be the sole proximate cause of the incident. In this case, defendants defeated plaintiff’s motion for summary judgment by raising a triable issue of fact as to whether plaintiff misused the appropriate and available safety device.
Labor Law § 241(6) (TPW)
The Second Department also affirmed the trial court’s decision on the Labor Law § 241(6) claim for the reasons above.
Plaintiff was injured when he received an electric shock while performing work on a vacuum circuit breaker (“VCB”) at defendant's substation. The electrical power to the VCBs was ordinarily cut off for the purposes of the work plaintiff was performing, but at the time of the incident, VCB #6, on which plaintiff was working, had not been de-energized. The trial court granted plaintiff’s summary judgment motion on the Labor Law § 200 claim and denied defendant’s cross-motion for summary judgment dismissing the complaint in its entirety.
Labor Law § 240(1) (MAS)
The Fourth Department reversed the trial court and dismissed the Labor Law § 240(1) claim as defendant met its initial burden of establishing that plaintiff was not engaged in “cleaning” the VCBs under the statute. Defendants showed that the work was “the type of job” that was performed routinely and recurrently “with relative frequency as part of the ordinary maintenance and care of a commercial property.” Moreover, the risk inherent in the work resulted not from gravity but from the high voltage of the VCBs and, therefore, the work did not implicate the “core purpose of Labor Law § 240(1).”
PRACTICE POINT: The Court of Appeals in Soto held that an activity cannot be “cleaning” under Labor Law § 240(1), if the task: (1) is routine, in the sense that it is the type of job that occurs on a daily, weekly or other relatively-frequent and recurring basis as part of the ordinary maintenance and care of commercial premises; (2) requires neither specialized equipment or expertise, nor the unusual deployment of labor; (3) generally involves insignificant elevation risks comparable to those inherent in typical domestic or household cleaning; and (4) in light of the core purpose of Labor Law § 240(1) to protect construction workers, is unrelated to any ongoing construction, renovation, painting, alteration or repair project. Here, the majority concluded that defendant established that, rather than cleaning, plaintiff was engaged in “routine maintenance in a non-construction, non-renovation context” to which Labor Law § 240(1) does not apply.
Justices Whalen’s and Ogden’s dissent disagrees with the majority’s analysis of the first Soto factor and notes the majority’s opinion does not even address the second and third factors, both of which also weight in plaintiffs’ favor. With respect to the first factor, the dissent notes that plaintiff’s maintenance service work typically occurred during a designated annual shutdown of the substation, each VCB was serviced only once every three years, and certain other equipment was serviced only once every five years. Thus, the dissent disagrees with the majority’s finding that the acitivity occurred with “relative frequency” within the meaning of the first factor as an activity occurring annually – or less often – is not conducted on a “daily, weekly or other relatively-frequent and recurring basis.”
With respect to the second factor, although some of the supplies used by plaintiff were typical household or commercial cleaning equipment, he also used specialized testing equipment, wore protective clothing, and was a journeyman electrician trained to work in a high voltage environment. With respect to the third factor, plaintiffs established that the VCBs were eight or nine feet tall and the work required him to climb to either the third or fourth rung of an 8- or 10-foot ladder, a height that is an elevation-related risk under Labor Law § 240(1). The fourth factor also supports the dissent’s finding that plaintiff was engaged in a covered cleaning activity based on the environment in which the work was being performed.
Labor Law § 241(6) (TPW)
The Fourth Department’s majority similarly held that defendant met its initial burden of demonstrating that plaintiff’s work was not protected under Labor Law § 241(6), which is limited to work performed in the context of construction, demolition or excavation. However, the dissent cannot conclude the same and would also deny defendant’s cross-motion for summary judgment dismissing this claim.
Labor Law § 200 and Common-Law Negligence (ESB)
The Fourth Department modified the trial court’s decision and denied plaintiff’s motion for summary judgment as to Labor Law § 200. However, it affirmed denial of defendant’s motion to dismiss that claim. The Court found a question of fact as to whether plaintiff's conduct was an intervening superseding cause of his injuries. Although the record established that defendant failed to de-energize VCB #6, it also demonstrated that electricians are supposed to test the wires for high voltage and attach grounds for protection, which plaintiff was expected to do. Therefore, there was a question whether plaintiff's conduct constituted an unforeseeable, superseding act "sufficient to break the causal chain, thus absolving defendant of any claimed liability.”
 New York Industrial Code Regulations (EDA)
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Regulation § 23–1.25(a)(2)(i), Welding and flame cutting operations.
Compressed gas cylinders.
2) Control valves and regulators.
(i) The control valve of any compressed gas cylinder shall be located at the domed end of such cylinder and when not in use such control valve shall be protected by a suitable cap or ring guard. A key or wrench shall be maintained on the spindle of every compressed gas cylinder at all times during use.
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Regulation § 23–1.25(a)(2)(i) is sufficiently specific to support a Labor Law § 241(6) cause of action.
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Piazza v Frank L. Ciminelli Const. Co., Inc., 2 AD3d 1345, 770 NYS2d 504 (4th Dept 2003) (§ 12-1.25(a)(2)(i), which requires that the control valve of any compressed gas cylinder be located at the domed end of such cylinder and protected by a suitable cap or ring guard when not in use, is sufficiently specific to support a Labor Law § 241(6) cause of action).
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Labor Law Pointers
Editor
David R. Adams
Associate Editor
Eric S. Bernhardt
Associate Editor
Timothy P. Welch
Associate Editor
Marc A. Schulz
Associate Editor
Eric D. Andrew
Associate Editor
Patrice C. S. Melville
Associate Editor
Ashley M. Cuneo
Labor Law Team
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Hurwitz Fine P.C.
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