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Volume XII, No. 11
Wednesday, October 4, 2023
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 Note from Eric S. Bernhardt:
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.
Our fearless leader is on assignment, so I’ll be your guest host for this edition of Labor Law Pointers. It is officially fall, but the summer weather in Buffalo doesn’t seem to want to go without a fight. The forecast says it’ll be in the 80’s. I guess it’ll be iced pumpkin-spice lattes for the time being.
This is one of my family’s favorite times of year, as October means Halloween. My wife takes particular joy in decorating the house and finding silly family costumes for us. This year we are going as a fruit salad. I’m the banana; my wife will be a strawberry; and the baby will be the cutest pineapple ever. My teenage daughter didn’t want a full costume, but she will have a fruit headband (picture a low-key Carmen Miranda). [1] We wish everyone a safe, spooky, and Happy Halloween!
[1] Some of you will have to Google that name.
On to the photos.
In our first offering, the plaintiff is repairing a leaking window on the roof of an apartment building. His employer had no scaffolding to help him reach the roof, but he had a stack of 2x4s, a hammer, and some nails. Now, our plaintiff loved playing with Erector sets in his youth, so he built himself a ladder and makeshift platforms to work on. The leg of the platform slides down the metal roof, plaintiff loses his balance and falls. Does he have a claim under § 240(1)?
The plaintiff has a prima facie case under Labor Law § 240(1). He is a valid plaintiff, as he is a person so-employed. He is repairing the window of the building, which is a covered activity. The defendant is the owner of an apartment building, so it is a valid defendant. Finally, the injury arose from the absence of an enumerated safety device to protect him from a significant elevation-related hazard.
In our next offering, the plaintiff, a roofer by trade, is helping his friend inspect the roof of his home to try and identify the source of a water leak after a storm. His friend doesn’t have a long-enough extension ladder, but he has several small ones, so the plaintiff tells him to lash them together with zip ties, and to hold the bottom steady while plaintiff climbs up to inspect the roof. As plaintiff reaches the top, the zip tie on the top ladder breaks, the ladder shifts, and he falls. § 240(1)?
In this case, we have an injury that arose from the absence of an enumerated safety device to protect him from a significant elevation-related hazard. However, plaintiff was not a person “so-employed,” he volunteered to help his friend, so he is not a proper Labor Law plaintiff. Further, at the time of the accident, plaintiff was inspecting the roof to identify the source of the leak. In other words, his work was merely investigatory. Accordingly, it is not a covered activity under the Labor Law.
Additionally, even if we had a proper plaintiff and a covered activity, his friend may be entitled to the single-family homeowner exemption to liability because he did not direct and control the work. Rather, Plaintiff was the one who provided instructions on what to do. Summary judgment for the defendant.
In our final offering this month, the plaintiff is a maintenance worker in this lovely Victorian house, which was converted into a B&B. As he was walking up the stairs, he noticed that the light fixture had gone out. He did not have a ladder tall enough to reach the light, so he engineered a platform with an A-frame ladder, a board, and his co-worker as a counterweight. Plaintiff stepped out onto the board and saw that a light bulb had burned out. He got a new bulb and, while he was in the process of screwing in the new bulb, his co-worker sneezed, let go of the board, and plaintiff fell to the floor below. § 240(1)?
We have a proper plaintiff, as he is a person so employed. We have a proper defendant: the owner of a commercial property. We also have an injury that arose from the absence of an enumerated safety device to protect him from a significant elevation-related hazard (remember, a person is NOT a safety device). However, plaintiff was changing a lightbulb. That’s routine maintenance, which is not covered by Labor Law § 240(1). Summary judgment for the defendant.
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.
-Eric
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]
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Plaintiff fell from a ladder while replacing two ceiling tiles that were damaged by recurring leaks in the roof of the Dunkin' Donuts building, which is owned and managed by defendants. The trial court granted defendants' motion for summary judgment dismissing the complaint and denied plaintiff's cross-motion for summary judgment on his Labor Law claims.
 Labor Law § 240(1) (MAS)
The First Department affirmed dismissal of the Labor Law 240(1) claim because plaintiff’s work as a store manager did not involve performing “construction, alteration, demolition, or similar labor,” and “the company he worked for did not regularly undertake enumerated duties under the Labor Law.”
PRACTICE POINT: Aside from the fact the plaintiff was not working in construction, the Court noted that the replacement of ceiling tiles was routine maintenance. In other words, it was not a protected activity under Labor Law 240(1).
 Labor Law § 241(6) (TPW)
The First Department affirmed the trial court’s decision to grant of summary judgment to defendants under Labor Law 241(6), which only applies to a narrow class of protected workers engaged in "constructing or demolishing buildings in areas in which construction, excavation or demolition work is being performed". Since no construction, excavation, or demolition was ongoing at the time of plaintiff's accident, the Court held that he is not protected by that statute.
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department modified the trial court’s decision by reinstating the common-law negligence claim. It held that the record demonstrated triable questions of fact as to whether defendants had actual or constructive notice of an unsafe ceiling leak and whether the leak proximately caused plaintiff's injury. Plaintiff alleged that the leak created a slippery condition on the ladder. As neither party met their burden of proof, the cause of action was reinstated for trial.
As for Labor Law § 200, the Court held that the claim arose out of the method of work, involving an inadequate ladder, but defendants exercised no supervisory control over the work, and therefore no liability attached under § 200.
Plaintiff was injured when, as he was descending a Baker scaffold, the scaffold started to shake, move, or tip over for no apparent reason. Plaintiff testified at his deposition that he then let go of, and fell from, the scaffold, landing on a pile of metal straps that were "like a sheet of ice underneath [his] feet," causing him to fall backwards to the floor.” The trial court granted plaintiff's motion for partial summary judgment on the Labor Law § 240 (1) claim as against defendant COMREF 380, defendant/third-party plaintiff J.T. Magen and Shiseido.
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s decision as the Court determined that plaintiff testified consistently at his deposition as to the way his incident occurred in that he was provided with a safety device but that the scaffold proved to be inadequate to prevent him from falling. Thus, in the absence of evidence controverting his account of the incident or calling into question his credibility, the Court held that plaintiff was properly awarded partial summary judgment on the issue of liability under Labor Law 240(1), even though he was the sole witness to his incident.
PRACTICE POINT: Where, as here, the injured worker testifies that the ladder or scaffold moved, shook, shifted, collapsed, tipped over or otherwise moved, causing him or her to fall, then the presumption – that the ladder or scaffold failed to prevent the worker from falling – is met. The burden then shifts to defendant to raise an issue of fact as to whether the injured worker’s conduct was the sole proximate cause. Remember, an injured worker is not required to show that the ladder or scaffold was defective and does not need to identify a safety device of the kind enumerated in the statute that could have prevented the fall.
Plaintiff was using an aerial lift owned by Ahern when it allegedly malfunctioned, causing plaintiff's coworker to spray him with the power washer. Plaintiff did not dispute that Ahern was neither an owner nor contractor within the meaning of the statute. The complaint only alleges that Ahern owned and maintained the aerial lift, not that Ahern exercised any supervision or control over the worksite. The trial court denied Ahern’s CPLR 3211(a) motion to dismiss the Labor Law and negligence claims.
Labor Law § 240(1) (MAS)
The First Department affirmed dismissal of all of the Labor Law claims against Ahern because plaintiff did not dispute that Ahern was neither an owner nor contractor within the meaning of the statute. Since the complaint merely alleged that Ahern owned and maintained the aerial lift, not that Ahern exercised any supervision or control over the worksite, the complaint failed to state Labor Law claims against Ahern as owner of the aerial lift.
PRACTICE POINT: Under the Labor Law, only contractors, owners, and their agents are appropriate Labor Law defendants. Here, since defendant did not have the authority to supervise, direct, or control the injury-producing work, and was neither an owner nor contractor, it was not an appropriate Labor Law defendant.
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed denial of Ahern’s motion as to common-law negligence. Plaintiff alleged that the aerial lift owned by Ahern malfunctioned, causing plaintiff's coworker to spray plaintiff with the power washer. Contrary to Ahern's claim, even if plaintiff's coworker proximately caused plaintiff's injury, Ahern was not absolved of liability as "there may be more than one proximate cause of an injury.” Thus, the motion as to common-law negligence properly was denied.
Plaintiff commenced suit in Kings County against several construction-related entities alleging violations of Labor Law §§ 200, 240, and 241, and common-law negligence in connection with a workplace incident. After the incident, plaintiff was taken to a NYCHHC facility for treatment. Plaintiff also commenced this suit in New York County against NYCHHC, alleging medical malpractice in connection with his post-accident treatment. The trial court granted defendant New York City Health and Hospitals Corporation's motion to consolidate this action with an action pending in Kings County and transfer the consolidated action to New York County.
Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court’s decision. Although the Labor Law action and this medical malpractice action involve common questions of fact, the medical malpractice action involves numerous additional allegations of professional negligence and injuries that are irrelevant to the Labor Law action. The Court also held that issues and legal principles in both actions would likely result in jury confusion such that consolidation would not beneficial.
PRACTICE POINT: Whether to consolidate multiple actions is left to the discretion of the court. Some of the factors considered are: common questions of fact, similar legal issues and applicable legal principles, common defendants, and common injuries.
Plaintiff slipped on a piece of wood while descending a staircase at the construction site where he was working. The trial court granted plaintiff's motion for summary judgment on liability on his Labor Law § 241(6) claim predicated on a violation of Industrial Code (12 NYCRR) § 23-1.7(e)(2).
Labor Law § 241(6) (TPW)
The First Department unanimously affirmed the trial court’s decision to grant plaintiff's motion for summary judgment on partial liability on his Labor Law § 241(6) claim predicated on a violation of Industrial Code 12 NYCRR § 23-1.7(e)(2). Plaintiff established entitlement to summary judgment by testifying that he slipped on a piece of wood while descending a staircase at the construction site. This evidence was sufficient to establish that defendants violated § 23-1.7 (e)(2) ("Tripping and other hazards"), as the staircase constituted a passageway and the wood created a tripping hazard within the meaning of the statute. In opposition, defendants submitted no evidence controverting plaintiff's sole account of the accident. The Court noted that any possible comparative negligence on the part of plaintiff does not preclude liability founded upon a violation of Labor Law § 241(6).
Plaintiff sustained injuries while installing conduits in a trench to relocate ConEd's underground utilities. The relocation work was being performed in furtherance of the City's project of installing water mains. The trial court denied defendants City of New York and ConEd’s motion for summary judgment dismissing the Labor Law § 241(6) claim as against the City and the Labor Law § 200 and common-law negligence claims as against both defendants.
Labor Law § 241(6) (TPW)
The First Department reversed the trial court and granted the motion against the City dismissing the Labor Law § 241(6) claim because the injury-producing work was subject to an exemption under Industrial Code § 23-1.13(a). The Court rejected plaintiff’s argument that the exemption is not applicable against the City because the claim against the City was based on the City’s ownership of the roadway, as opposed to its ownership of the water mains. Industrial Code § 23-1.13(a)’s exemption expressly applies to “operations” being conducted, not to particular entities involved in the work and here, the City’s water supply operation was implicated because the injury-producing electrical relocation work was part of the City’s overarching water main installation project.
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department held that the City was entitled to dismissal of the Labor Law § 200 and common-law negligence claims against it because there was no evidence that it had actual or constructive notice of the dangerous electrical condition that caused plaintiff's injuries. Although the City had on-site inspectors on the project, that raised no more than a general awareness of the condition, which was insufficient to impute notice.
As for ConEd the Court found questions of fact. As a “dangerous condition” case, to the extent it the accident was caused by a dangerous condition in the conduit or duct encasing the live cable, the Court found factual issues as to whether the cable was properly guarded or insulated. As a “means and methods” case, the Court held that the testimony of plaintiff's foreman – that ConEd instructed him daily as to the work to be performed and would, at times, specify the equipment to be used – raised questions of fact as to whether ConEd exercised supervisory control over the injury-producing work.
Plaintiff was working at defendants' construction site when he fell 20 to 25 feet down an unguarded temporary plywood ramp that had been constructed over one of the building's staircases so that workers could move materials. The trial court granted the motion of the Moinian defendants and the Newmark defendants dismissing plaintiffs' claims against them under Labor Law §§ 240(1), 200, and common-law negligence; granted Whitestar's motion to dismiss plaintiffs' claim as against it under Labor Law § 240(1); and denied plaintiffs' cross-motion seeking summary judgment on their Labor Law §§ 240(1), 200, and common-law negligence claims against defendants.
Labor Law § 240(1) (MAS)
The First Department reversed the trial court’s decision, denied Moinian’s, Newark’s and Whitestar’s motions and granted plaintiff’s cross-motion for summary judgment. The Court held that plaintiff submitted evidence that the ramp was a device being used for the construction work, spanned a significant height differential, and did not have any safety devices to prevent workers from inadvertently falling off it. Thus, facts are sufficient to conclude that the statute applies to the incident. In opposition, the Court held that defendants failed to offer any evidence sufficient to raise a triable issue of fact.
PRACTICE POINT: Whether an incident involving a ramp is covered by the statute turns on a number of factors, the primary one being whether the ramp covered a significant elevation differential. Here, as noted, the height differential from the top of the ramp to the ground was 20-25 feet. Thus, the fact that the ramp was not intended to be used as a substitute for a ladder or scaffold, but was used only to transport materials, was irrelevant.
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department held that, in light of its determination on the § 240(1) claim, the arguments relative to § 200 and common-law negligence were academic.
Plaintiff was injured when, while working on a scaffold at a renovation project, he attempted to avoid a fall after the plank on which he was standing shifted under his feet. At the time of the incident, defendant Burns-Pearson owned the property, Burns Automotive and Luxury Autos leased the property, and Bergon Construction was the general contractor. The trial court denied plaintiff's motion for summary judgment on the Labor Law § 240(1) claim and denied defendants’ cross-motion to dismiss that claim, as well as granted defendants' cross-motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claim.
Labor Law § 240(1) (MAS)
The Second Department modified the trial court’s decision by granting plaintiff’s motion on the § 240(1) claim because plaintiff’s evidence demonstrated that the scaffold failed to afford him proper protection for the work being performed, and that his failure was a proximate cause of his injuries.
PRACTICE POINT: Labor Law § 240(1) may apply where a plaintiff is injured as a result of his or her attempt to prevent a fall from a ladder or scaffold, and the fact that a he or she does not actually fall is irrelevant, so long as the harm directly flowed from the application of the force of gravity to an object or person.
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed dismissal of the § 200 and common-law negligence claims. In this “means and methods” case, it found that the record showed that the property owner and the lessees exercised no supervisory control over plaintiff's work, and the general contractor had, at most, general supervisory authority over plaintiff's work, which is insufficient to form a basis for the imposition of liability.
Plaintiff was injured when he slipped and fell from a bridge cable that was painted and treated in a defective manner while working as a bridge painter on the Brooklyn Bridge Rehabilitation for his employer, nonparty NYCDOT. Ahern Painting and T.A. Ahern commenced a third-party action against Nuco, who was hired by Ahern Painting to perform painting work on the project. Nuco commenced a second-third party action for common-law indemnification and contribution against GPI, which was the engineering and consulting firm hired by NYCDOT to perform resident engineering inspection services for it on the project pursuant to a written contract. Nuco alleged in the second third-party complaint that GPI exercised control over the method of work and materials used at the bridge project, and that its negligence contributed to the incident. The trial court denied the motion of the second third-party defendant for summary judgment dismissing the second third-party complaint and to impose sanctions pursuant to CPLR 8303-a against the third-party defendant/second third-party plaintiff, Nuco.
Labor Law § 240(1) (MAS)
The Second Department held that GPI failed to demonstrate that it lacked the requisite level of supervisory control and authority over the bridge painting work to give rise to a Labor Law claim.
PRACTICE POINT: Under the Labor Law, contractors, owners and their agents are appropriate Labor Law defendants because they have the authority to supervise, direct, or control the injury-producing work. Here, GPI could not demonstrate that it lacked such authority. Accordingly, the Court found a question of fact regarding whether GPI was subject to liability under the Labor Law.
Labor Law § 241(6) (TPW)
The Second Department affirmed the decision of the lower court denying that branch of the motion of the second third-party defendant for summary judgment dismissing the second third-party complaint. Second third-party defendant argued it was protected from liability for a violation of Labor Law § 241(6) by Labor Law § 241(9), which exempts professional engineers from liability for noncompliance with Labor Law § 241(6) when they "do not direct or control the work for activities other than planning and design". However, second third-party defendant failed to meet its burden of eliminating all triable issues of fact, among other things, as to its entitlement to the exemption set forth under Labor Law § 241(9) based on a absence of authority to direct or control the work that allegedly gave rise to the accident and whether it contributed to the happening of the accident.
Labor Law § 200 and Common-Law Negligence (ESB)
As with § 240(1), the Second Department held that GPI failed to demonstrate that it lacked the requisite level of supervisory control and authority over the bridge painting work.
 Indemnity Issues in Labor Law (AMC)
The Appellate Division, Second Department, upheld the lower Court’s decision in denying GPI’s motion seeking to dismiss the second-third party action for common-law indemnification and contribution. The Court held that GPI failed to eliminate all triable issues of fact, including its entitlement to exemption under Labor Law § 241(9), its authority to direct or control the work that allegedly gave rise to the accident, and whether it contributed to the happening of the accident.
Plaintiff, a carpenter, was injured while working on a construction project at defendant’s premises when his foot was caught in an uncovered hole on the first floor of the premises, while he was carrying two pieces of rebar. The trial court denied plaintiff's motion to set aside a jury verdict in favor of 1000 Dean on the Labor Law § 241(6) claim predicated on a violation of 12 NYCRR § 23-1.7(e)(1) and for judgment as a matter of law, or in the alternative, to set aside the jury verdict as contrary to the weight of the evidence or in the interest of justice and for a new trial.
Labor Law § 241(6) (TPW)
The Second Department affirmed the denial of plaintiff's motion pursuant to CPLR § 4404(a) to set aside the jury verdict in favor of defendant on the Labor Law § 241(6) claim predicated upon a violation of 12 NYCRR § 23-1.7(e)(1). Pursuant to 12 NYCRR § 23-1.7(e)(1), "[a]ll passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping." According to the Appellate Division, the evidence at trial did not preponderate so heavily in the plaintiff's favor that the verdict could not have been reached on any fair interpretation of the evidence. Rather, the evidence established that the defendant's general contractor had a common practice to cover the holes in the floor with plywood, and the general contractor's foreman testified that prior to the accident he walked through the area where plaintiff allegedly tripped multiple times a day and could not recall an instance when the holes in the floor were uncovered. Moreover, the jury could have reasonably determined based on a fair interpretation of the evidence that plaintiff's own negligence was the sole proximate cause of his injuries.
Walsh v Kenny
September 27, 2023
Appellate Division, Second Department
Plaintiff was injured while removing and replacing boards on a backyard deck at a residence owned by the defendant. The trial court granted defendant's motion for summary judgment dismissing the common-law negligence claim and claims for violations of Labor Law §§ 200 and 241(6).
Labor Law § 241(6) (TPW)
The Second Department reversed the trial court’s decision to grant defendants’ motion for summary judgment dismissing the Labor Law 241(6) claim. As the court noted, Labor Law § 241(6) imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers. However, owners of one- or two-family dwellings are exempt from liability under Labor Law § 241(6) unless they directed or controlled the work being performed. For a defendant to receive the protection of the homeowner's exemption, the defendant must show that (1) the premises consisted of a one- or two-family residence, and (2) the owner did not direct or control the work being performed.
Although defendant demonstrated that the work being performed at his single-family home was directly related to its residential use, the Court held that defendant failed to establish that he did not direct or control plaintiff's work. Per plaintiff’s testimony, at the time of the accident, defendant owned a business that employed plaintiff to perform carpentry work on decks and that defendant instructed plaintiff on which boards to remove and replace at defendant's home as well as provided all the materials and tools that plaintiff used.
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department reversed the trial court decision and denied defendant summary judgment as to Labor Law § 200. It found that, in this “means and methods” case, defendant failed to eliminate all triable questions of fact as to whether he had the authority to supervise or control the plaintiff's work.
 New York Industrial Code Regulations (EDA)
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Regulation § 23–1.25(a)(2)(ii), Welding and flame cutting operations.
Compressed gas cylinders.
2) Control valves and regulators.
(ii) Each compressed gas cylinder in use shall be provided with a pressure regulator or an automatic pressure reducing device.
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Regulation § 23–1.25(a)(2)(ii) is likely sufficiently specific to support a Labor Law § 241(6) cause of action.
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There are no cases directly on point for this subsection, however the prior paragraph with a specific command akin to this paragraph was found to be 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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