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Ponce v City of New York
June 06, 2023
Appellate Division, First Department
Plaintiff allegedly slipped and fell on ice in the area between buildings at a construction project. Deposition testimony established that DASNY project managers generally arrived at 7:30 a.m. each morning. Plaintiff’s work was limited to the inside of the structures and not to remedy ice in the area between the buildings where his injury occurred. The trial court granted DASNY’s motion for summary judgment dismissing the Labor Law §§ 241(6), 200 and common-law negligence claims as against it and denied plaintiffs' cross-motion for summary judgment under Labor Law § 200.
 Labor Law § 241(6) (TPW)
The First Department affirmed the trial court’s dismissal of plaintiff's Labor Law § 241(6) claim. The location of plaintiff's fall, which he described as an open area, was not a walkway or pathway which would implicate Industrial Code (12 NYCRR) § 23-1.7(d).
 Labor Law § 200 and Common-Law Negligence (ESB)
The First Department modified the trial court’s order and denied defendants’ motion for summary judgment as to Labor Law § 200 and common-law negligence. In this hazardous condition case, the Court held deposition testimony established that DASNY project managers generally arrived at 7:30 a.m. each morning. DASNY, however, failed to address the fact, with either affidavits or documentary evidence, that its employees were not at the project the morning of plaintiff's accident. Therefore, it failed to demonstrate that it did not have actual or constructive notice of the condition of the site, which plaintiff described as covered in a large, thick sheet of ice. Moreover, it held the alleged injury was not caused by a hazard inherent in the work plaintiff was obligated to perform, as his work was limited to the inside of the structures and not to remediating ice in the area between the buildings where he slipped and fell.
Rivera v Matiz Architecture, PLLC
June 20, 2023
Appellate Division, First Department
Plaintiff fell at a construction project at 3 RSD’s property. 3 RSD is owned by a nonparty LLC that has only one managing member. In support of its motion for summary judgment, 3 RSD submitted its managing member's affidavit, averring that 3 RSD intended to use the property solely for residential purposes. The trial court granted 3 RSD's motion for summary judgment dismissing the complaint against it and denied as premature plaintiff's' claims alleging violation of Labor Law §§ 240(1) and § 241(6), with leave to renew upon the completion of discovery.
 Labor Law § 240(1) (MAS)
The First Department unanimously modified the trial court’s decision regarding plaintiff’s claims under Labor Law §§ 240(1) and § 241(6). The Court noted that 3 RSD submitted its managing member’s affidavit stating that 3 RSD intended to use the property solely for residential purposes. This established 3 RSD’s entitlement to the protection of the homeowners’ exemption and dismissal of the Labor Law §§ 240(1) and § 241(6) claims. However, the Court also noted that 3 RSD acknowledged that its managing member is the only person with knowledge that 3 RSD intended to use the premises entirely and solely for commercial purposes. Moreover, plaintiff submitted documents showing that 3 RSD has previously undertaken similar projects for commercial purposes.
Accordingly, the Court held the record demonstrates the existence of a factual issue as to whether the property is to be used solely and entirely for commercial purposes. Since 3 RSD had not yet produced that managing member for deposition at the time it moved for summary judgment, plaintiff established “facts essential to justify opposition” might exist but could not “then be stated” under CPLR § 3212(f) because they were “within the exclusive knowledge of the moving party.” Therefore, 3 RSD’s motion should have been denied as premature, with leave to renew upon the completion of discovery.
PRACTICE POINT: The homeowners’ exemption to liability under Labor Law §§ 240(1) and 241(6) is available to “owners of one and two-family dwellings who contract for but do not direct or control the work” and who demonstrates that the property was intended to be used solely for residential and not commercial purposes. Here, plaintiff’s counsel did a nice job developing a record for the Court’s review suggesting that the property may not be used solely for residential purposes, rendering the exemption potentially inapplicable to 3 RSD and warranting denial of its motion for summary judgment as premature.
Cavedo v Flushing Commons Prop. Owner, LLC
June 22, 2023
Appellate Division, First Department
Plaintiff testified his workspace “seemed” clean at the time he began his hallway compound work just two hours before he allegedly tripped and fell over discarded cardboard box straps located on the floor in the hallway. Plaintiff's fall occurred thirty to forty feet down the hallway from where he was working; just prior to his fall, he was headed to an apartment where additional construction supplies were stored. Defendants offered no evidence from their personnel as to when this area of the hallway was last inspected and/or cleaned of all debris. The trial court denied in part defendants’ motion for summary judgment dismissing the complaint and granted plaintiff's motion for partial summary judgment on his Labor Law § 241(6) claim based on a violation of Industrial Code (12 NYCRR) § 23-1.7 (e)(1).
Labor Law § 241(6) (TPW)
The First Department unanimously modified the trial court’s decision granting plaintiff's motion for partial summary judgment on the Labor Law § 241(6) claim predicated on Industrial Code (12 NYCRR) § 23-1.7(e)(1). The Court held that while defendants had a nondelegable duty to maintain the construction premises in a safe condition, and could be held vicariously liable for the negligent acts of others that proximately cause injury to another on the work site, factual issues remained here as to whether someone in the chain of responsible employees had actual or constructive notice of the alleged hazardous condition, thereby warranting denial of plaintiff's motion on his Labor Law § 241(6) claim.
Manfredonia v 750 Astor LLC
June 22, 2023
Appellate Division, First Department
Plaintiff submitted deposition testimony showing that he was on site to repair a drainpipe on the tenant's HVAC unit that needed to be removed and reset at the correct angle, when the extension ladder he was using collapsed as he descended. The trial court granted plaintiff's motion for summary judgment under Labor Law § 240(1) against the property owner. ADCO was the electrical contractor for the project and responsible for installing and replacing all lighting, including lighting in the scaffold.
Labor Law § 240(1) (MAS)
The trial court unanimously affirmed the trial court’s decision, as plaintiff submitted deposition testimony showing that he fell from an extension ladder while performing repair work, and the owner and tenant failed to raise a triable issue of fact as to whether plaintiff was performing routine maintenance instead of a repair. The Court held defendants failed to proffer any evidence to contradict plaintiff’s explanation of the work he planned to perform.
Deposition testimony of plaintiff’s employer, supported by the employer’s business records, offered in opposition, showed that the absence of a work ticket on the date of the accident did not controvert plaintiff’s testimony, since work tickets were only prepared after work was performed, and plaintiff fell before he could begin work that day. Further, and contrary to the owner’s and tenant’s contentions, the absence of a work ticket showing that the repair as described by plaintiff was subsequently performed by another service tech did not call into question plaintiff’s credibility.
PRACTICE POINT: This case highlights the distinction between routine maintenance and repair under Labor Law § 240(1). Where the components that need to be replaced to make the product work again are of the type that typically wear out and need to be replaced, courts consider it routine maintenance. Where they are not that type of components, it typically is a repair. Here, the court deemed plaintiff’s work a repair and, therefore, he was entitled to the extraordinary protections of § 240(1).
McKinney v Empire State Dev. Corp.
June 22, 2023
Appellate Division, First Department
Plaintiff was an employee of US Roofing at a construction project and claimed he struck his head on a scaffold pipe because the scaffold was improperly constructed/designed and the lighting in the area was insufficient. The scaffolding at issue was designed and erected by Atlantic. The trial court denied US Roofing's motion for summary judgment dismissing Tishman's third-party claim for contractual indemnification; denied Atlantic’s motion for summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims; denied Tishman's motion for summary judgment dismissing plaintiff's Labor Law §§ 241(6), 200 and common-law negligence claims and on its cross-claims for contractual indemnification against Atlantic and ADCO, and granted Tishman's motion for conditional summary judgment on its on its contractual indemnity claim against US Roofing; and denied, except insofar the motion sought dismissal of Tishman's third-party claim for failure to procure insurance, ADCO's motion for summary judgment dismissing Tishman's second third-party complaint and all cross-claims as against it, and it granted US Roofing's motion to reargue, and, upon reargument, adhered to its prior determination denying US Roofing's summary judgment motion to dismiss Tishman's third-party contractual indemnity claim.
Labor Law § 241(6) (TPW)
The First Department affirmed the denial of defendants’ motions seeking dismissal of plaintiff's Labor Law § 241(6) claim predicated on Industrial Code 12 NYCRR § 23-1.30. Plaintiff testified that it was dark in the area where the accident occurred and that there were no lights, while defendants and third-party defendants submitted deposition testimony in which their representatives stated that the area was well-illuminated. The conflicting versions of the lighting conditions near the scaffold raised issues of credibility which could t not resolved on summary judgment
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed denial of summary judgment. With regard to Tishman, the Court found issues of fact as to whether Tishman had notice of any dangerous condition with respect to the scaffolding. Additionally, although Tishman's representative testified that he was "pretty sure" that signs warning of low head clearance were posted in the area, plaintiff testified that he could not recall seeing warning sign. Thus, the conflicting testimony presented an issue of fact. With regard to Atlantic Hoisting, the Court found issues of fact as to whether Atlantic Hoisting created the dangerous condition on the scaffold where plaintiff's accident occurred by erecting a scaffold with low clearance.
 Indemnity Issues in Labor Law (BFM)
The First Department held that Tishman, the general contractor of the project, established its entitlement to conditional summary judgment on its contractual indemnification claim against US Roofing. The indemnification provision was triggered because plaintiff, a US Roofing employee, was injured during the performance of his work. Conditional summary judgment was appropriate because the record established that Tishman's negligence, if any, was not the sole proximate cause of the accident, and the extent of the indemnification will depend on the extent to which any negligence by Tishman is found to have contributed to the accident.
The Court found that Atlantic Hoisting was not entitled to summary judgment dismissing Tishman's crossclaim against it for contractual indemnification, due to issues of fact as to whether the plaintiff's accident occurred because of Atlantic Hoisting's negligence in installing and maintaining the scaffold. Tishman also was not entitled to summary judgment on its crossclaims for contractual indemnification against Atlantic Hoisting and ADCO due to issues of fact as to whether plaintiff's accident arose out of or resulted from the acts or omissions of Atlantic or ADCO.
Feliz v Citnalta Constr. Corp.
June 14, 2023
Appellate Division, Second Department
Plaintiff, an employee of LJC, was injured while performing demolition work, when a lead sprinkler pipe fell on him. Plaintiff sued Citnalta, the general contractor for the project, and STV, the construction manager for the project. Citnalta then commenced a third-party action for contractual indemnification against LJC and STV. The trial court granted plaintiff’s cross-motion for summary judgment on his Labor Law §§ 240(1) and 241(6) claims. In 2018, after a jury trial on the issue of apportionment of fault among defendants, the jury found Citnalta and LJC each 50% at fault in the accident. The parties and their insurers subsequently entered into a settlement agreement providing that plaintiff was entitled to $3,900,000, to be paid by Citnalta and LJC together.
Citnalta thereafter cross-moved for summary judgment on the third-party contractual indemnification claim against LJC seeking indemnification for 50% of the $3,900,000 settlement amount paid to plaintiff. Citnalta contended that 50% of the settlement amount represented a portion of the settlement not attributable to its own negligence. In an order dated January 28, 2020, the trial court granted Citnalta's cross-motion. On July 14, 2020, the trial court issued an order and judgment in favor of Citnalta and against LJC in the principal sum of $1,950,000.
Indemnity Issues in Labor Law (BFM)
The Second Department affirmed the trial court’s finding that Citnalta established its entitlement to contractual indemnification from LJC for 50% of the settlement amount paid to the plaintiff. A jury trial on the issue of apportionment of fault among defendants had determined the percentages of fault. The Court noted that the indemnification provision at issue providing for indemnification contained savings language “to the fullest extent permitted by law” and did not purport to indemnify Citnalta for its own negligence, but rather limited indemnification to the percentage of fault not attributable to Citnalta. Accordingly, the Court found that the indemnification provision did not violate General Obligations Law § 5-322.1 and was enforceable.
Acevedo v PSM Long Is. Corp.
June 21, 2023
Appellate Division, Second Department
Plaintiff, an employee of a siding subcontractor, was injured at a construction site where a new single-family house was being built by defendants. Plaintiff testified that he was preparing to install siding on the exterior of the house, while standing on the fifteenth rung of an extension ladder, which his employer had set up. While he was driving a nail with a hammer above a second-story window, the ladder tilted to one side, causing plaintiff to lose his balance. To avoid falling to the ground, as he lost his balance, he jumped down onto a plank three feet below the ladder rung on which he had been standing, which was fourteen or fifteen feet above the ground. Plaintiff testified that, when emergency personnel straightened the ladder in order to rescue him from the plank, he noticed that one of the nails that should have prevented the ladder from tilting to the side was missing.
The trial court denied plaintiff's motion for leave to serve a third supplemental verified bill of particulars and for summary judgment under Labor Law §§ 240(1) and 241(6).
Labor Law § 240(1) (MAS)
The Second Department reversed the trial court and granted plaintiff’s motion because he established that his injuries were proximately caused by a violation of the statute, as he was working on a ladder, which tilted, causing him to lose his balance and jump onto the plank below. Defendants’ contentions that plaintiff leaned to one side while he was working, and that he jumped off the ladder as it began to tilt, were insufficient to raise a triable issue of material fac as to whether plaintiff’s actions were the sole proximate cause of his injuries.
PRACTICE POINT: The four elements of the sole proximate cause defense are (1) plaintiff had an appropriate safety device, which was readily available to him or her; (2) plaintiff was instructed to use and/or knew he or she was expected to use it; (3) he or she failed to use or misused the safety device for no good reason; and (4) had the readily available safety device been properly used, the injuries would not have occurred. Here, defendants’ contentions that plaintiff leaned to one side while he was working, and that he jumped off the ladder as it began to tilt, were not enough to raise a question of fact on the sole proximate cause defense where plaintiff testified that he noticed one of the nails, which should have prevented the ladder from tilting to the side, was missing, thereby demonstrating that he was not provided with an appropriate safety device.
Castro v Wythe Gardens, LLC
June 21, 2023
Appellate Division, Second Department
Plaintiff, a construction worker employed by Bayport, was injured when he tripped after stepping into a gap between the top step of a staircase and the landing. The general contractor, Express Builders, retained Urban Precast to supply and install the staircase. Urban Precast subcontracted the installation of the staircase to Urban Erectors. The trial court granted plaintiff’s motion for summary judgment against Express Builders, granted Bayport’s motion for summary judgment seeking dismissal of the contractual indemnification claim, and denied Urban Precast's motion to dismiss the contractual indemnity claim against it.
Labor Law § 240(1) (MAS)
The Second Department reversed the trial court and dismissed plaintiff’s claim. His injuries did not fall within the ambit Labor Law § 240(1) because they did not occur due to the result of an elevation-related or gravity-related risk. Moreover, insofar as plaintiff was using the stairwell as a passageway, it did not come within the purview of Labor Law § 240(1).
PRACTICE POINT: Because the stairwell was not being used as a ladder, scaffold, hoist, or other safety device for the benefit of plaintiff’s work and instead was being used as a passageway at the worksite, it was therefore not within the purview of Labor Law § 240(1).
Labor Law § 241(6) (TPW)
As to the Labor Law § 241(6) claim, the Second Department affirmed in part and reversed in part the trial court’s decision. The Court reversed the trial court insofar as it in granted that branch of plaintiff's motion for summary judgment predicated on a violation of 12 NYCRR 23-1.7(b)(1)(i) as asserted against Express Builders. Industrial Code 12 NYCRR 23-1.7(b)(1)(i) provides that “[e]very hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing.” However, that provision pertaining to “hazardous openings” does not apply to openings that are too small for a worker to completely fall through. Further, the trial court properly granted that branch of plaintiff's motion on the issue of liability predicated on a violation of 12 NYCRR 23-1.7(e)(1), which relates to tripping hazards, as asserted against Express Builders because plaintiff's testimony established the gap at the top of the stairs caused him to fall.
Panfilow v 66 E. 83rd St. Owners Corp.
June 21, 2023
Appellate Division, Second Department
Plaintiff allegedly was injured when he fell from a ladder while working at a construction site. The trial court denied plaintiff's motion for summary judgment on the Labor Law § 240(1) claim and denied the defendants’ cross-motion to dismiss the Labor Law § 200 and common-law negligence claims.
Labor Law § 240(1) (MAS)
The Second Department reversed the trial court and granted plaintiff’s motion on his Labor Law § 240(1) claim. Here, plaintiff established that his injuries were proximately caused by defendants’ failures, as the owner and general contractor, to satisfy their nondelegable duty to provide him with a safe and adequate ladder necessary for him to perform his elevation-related work.
PRACTICE POINT: This is the classic fall from a ladder Labor Law § 240(1) case and will almost always result in summary judgment for the injured worker, so long as he or she establishes a violation of the statute and that such violation was a proximate cause of his or her injuries.
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department reversed the trial court’s decision and granted summary judgment to the Defendants on plaintiff’s common-law negligence and Labor Law § 200 claims. Where, as here, plaintiff claimed the injury arose both because of a hazardous condition on the premises and from the manner in which the work was performed, the Court found defendants established that they did not create or have actual or constructive notice of the condition that plaintiff alleged caused his injuries and that they had no authority to supervise or control the means and methods of his work at the time of his accident.
Ramones v 425 County Rd, LLC
June 28, 2023
Appellate Division, Second Department
Plaintiff allegedly was injured when loading equipment, owned by his employer, CDI, including scaffolds, poles, boards, and ladders, onto the roof of CDI’s van. Plaintiff and other CDI employees used the equipment to perform roofing and shingling work at a building owned by 425 County Road. Farrell was the general contractor for the renovation of the building and hired CDI to perform roofing and siding work. Attempting to tie down the equipment with rope, plaintiff was on top of the equipment on the roof of the van when the ladder slipped off, and he and the ladders fell to the ground. The trial court granted CDI’s and Farrell’s motions for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims and denied plaintiff’s cross-motion for partial summary judgment on liability under those claims.
Labor Law § 240(1) (MAS)
The Second Department revered the trial court and denied the motion seeking dismissal of the Labor Law § 240(1) claim because defendants’ submissions failed to demonstrate that plaintiff’s activity in removing equipment from the worksite and loading it onto the van was not performed as part of the larger renovation project that CDI had been hired to complete on the premises. Plaintiff’s role in removing the equipment after it had been used by plaintiff and his coworkers was deemed an act “ancillary” to the alteration of the structure at the property and protected under Labor Law § 240(1).
Defendants also failed to adduce any evidence demonstrating that climbing on the roof to the van was not necessary to the task of securing the equipment on the roof, nor did they demonstrate that no safety device enumerated under the statute would have prevented plaintiff’s fall. However, the Court affirmed denial of plaintiff’s motion because plaintiff was required to establish that he was on top of the van because it was necessary to do so to carry out the task he had been given and “that there is a safety device of the kind enumerated in section 240(1) that could have prevented his fall, because ‘liability is contingent upon … the failure to use, or the inadequacy of’ such a device.” Thus, the Court held plaintiff's submissions showed the existence of a triable issue of fact as to whether his fall resulted for the lack of an adequate safety device.
PRACTICE POINT: We analyze every Labor Law using the same four criteria: (1) appropriate plaintiff; (2) appropriate defendant; (3) appropriate activity; and (4) elevation-related/gravity-related hazard. In this case, and contrary to defendants' contentions, plaintiff's activity in removing equipment from the worksite and loading it onto the van after it had been used by plaintiff and his coworkers was “ancillary” to the alteration at the property and, thus, was a covered activity. However, plaintiff was not entitled to summary judgment because he could not establish the fourth element, that his work required him to be on the top of the van. He also failed to demonstrate that there was an enumerated safety device that could have prevented his fall. This case also demonstrates the importance of burden of proof and understanding what you must prove to successfully win or defeat a summary judgment motion.
Labor Law § 241(6) (TPW)
The Second Department affirmed the trial court’s decision to grant those portions of defendants' separate motions for summary judgment seeking dismissal of the Labor Law § 241(6). That statute requires owners and contractors to provide reasonable and adequate protection and safety for workers and “to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor.” The Industrial Code provision plaintiff relied upon, 12 NYCRR 23-1.7)(f), had no application under the facts presented. That provision states, in relevant part, that “[s]tairways, ramps or runways shall be provided as the means of access to working levels above or below ground.” Under the circumstances, the Court held the roof of the van was not a working level above ground requiring a stairway, ramp, or runway under that section.
Vega v FNUB, Inc.
June 30, 2023
Appellate Division, Fourth Department
Plaintiff was operating a buck hoist, which is an elevator affixed to an outside of a building under construction and was transporting both workers and materials in the buck hoist. There was a two- to four-inch gap between the building and the buck hoist, and when the buck hoist stopped at a building level, plaintiff was required to place a metal plate over that gap before anything heavy or with wheels was moved on or off the buck hoist. The accident occurred when plaintiff took the buck hoist to the eighth floor of the building and an employee of Franco attempted to roll an electric pallet jack loaded with mortar and block debris onto the buck hoist without first waiting for plaintiff to put down the metal plate. As a result, the wheels of the pallet jack became stuck in the gap, causing debris to fall off the pallet jack. Plaintiff used an angle iron as a lever to try and push the pallet jack upward and back out of the buck hoist. When plaintiff attempted to do so, the angle iron “gave way,” the pallet jack shifted back down, and plaintiff slipped on fallen debris and was injured. The trial court denied plaintiff’s motion for summary judgment, granted in part and denied in party LPCiminelli’s cross-motion for summary judgment and denied in part Franco’s cross-motion for summary judgment.
Labor Law § 240(1) (MAS)
The Fourth Department affirmed the trial court’s decision to deny plaintiff’s motion and granted defendant’s and Franco’s cross-motion to dismiss the Labor Law § 240(1) claim. The Court concluded as a matter of law that plaintiff’s injuries resulted from a routine workplace risk of a construction site and not an elevation-related risk to which the statute applies.
PRACTICE POINT: The extraordinary protections of Labor Law § 240(1) apply only to a narrow class of dangers, i.e., “special hazards” presenting elevation-related risks. Therefore, liability may only be imposed under the statute where 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 injuries were from a routine workplace risk at a construction site and no elevation-related risk was involved. Although the accident occurred at a height, it did not occur because of that height differential.
Labor Law § 241(6) (TPW)
The Fourth Department affirmed the trial court’s decision to deny plaintiff’s and defendants’ respective motions for summary judgment predicated upon the alleged violations of 12 NYCRR 23-1.7(d) and 23-2.1(b). Industrial Code 23-1.7(d) provides that “[e]mployers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing.” That regulation is sufficiently specific to support a Labor Law § 241(6) claim and, contrary to defendant's and Franco's contentions, the regulation is not limited to elevated surfaces. However, the Court held that a triable issue of fact existed as to whether the regulation applied to the facts of this case, including whether mortar and block debris constituted a "foreign substance" and caused a "slippery condition" within the meaning of that regulation.
Industrial Code 12 NYCRR 23-2.1(b) provides that “[d]ebris shall be handled and disposed of by methods that will not endanger any person employed in the area of such disposal or any person lawfully frequenting such area.” The regulation is also sufficiently specific to support a Labor Law § 241(6) claim. The Court similarly found a triable issue of fact as to whether that regulation was violated and whether the way the mortar and block debris was handled and disposed of on the project was a proximate cause of plaintiff's injuries.
 New York Industrial Code Regulations (EDA)
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Note from David R. Adams:
