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Powell v City of New York
July 13, 2023
Appellate Division, First Department
Empire City designed, serviced, and maintained subsurface electrical conduits and manhole infrastructure in Manhattan and the Bronx for the City of New York pursuant to a franchise agreement. Plaintiff claims he was part of a crew excavating a roadbed and making trenches to lay conduits to install Verizon cables under the street. The crew was covering the trenches at the end of the workday when a backhoe pushed a steel plate onto his right foot, crushing it. Plaintiff sued the City as the owner of the roadbed. The trial court granted the City’s motion for summary judgment dismissing the complaint, as it had no notice of the alleged hazardous condition.
 Labor Law § 200 and Common-Law Negligence (ESB)
The First Department reversed the trial court’s decision and denied summary judgment to the City, finding that there was a triable question of fact regarding a nexus between the City and plaintiff’s construction work for purposes of the Labor Law. In fact, the Court held the City’s motion papers failed to address the Labor Law claims at all. Instead, the nexus argument was not raised until the City’s reply; consequently, the City never met its burden of proof.
Correa v 455 Ocean Assoc., LLC
July 5, 2023
Appellate Division, Second Department
Plaintiff, while working on the roof of a construction site owned and managed by defendants, injured his wrist while carrying a roll of tar paper down an extension ladder, from one level of the roof to a lower level, when he dropped the roll and grabbed the ladder to prevent himself from falling. The trial court granted plaintiff's motion for summary judgment on the Labor Law § 240(1) claim.
 Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s decision, as plaintiff submitted his deposition testimony that, although there was a pulley on the worksite to raise or lower heavy materials, he could not operate the pulley without a second person, and his foreman instructed him to use the extension ladder, which was not an adequate device for lowering the rolls.
PRACTICE POINT: The injured worker’s testimony that he could not operate the pulley without a second person and that his foreman told him to use the extension ladder proved defendants’ failure to provide him with an adequate safety device, and that defendants’ violation of the statute was a proximate cause of his injuries.
Gamez v New Line Structures & Dev., LLC
July 5, 2023
Appellate Division, Second Department
Plaintiff was employed to perform carpentry work on property allegedly owned by Hallets Building 1 SPE, and Hallets Astoria, LLC (the Hallets defendants). During construction, plaintiff was walking on a sixth floor working deck, on which he observed numerous pieces of plywood. While he was walking, one of the pieces of plywood allegedly slid out from under his feet, and he fell through a hole which the plywood had been covering, landing on the deck below. According to plaintiff, the plywood had not been nailed down or marked with the word “hole.” The trial court denied plaintiffs' motion for summary judgment under Labor Law § 240(1).
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s decision to deny plaintiff summary judgment. Plaintiff’s evidence established the plywood, which was unsecured and unmarked, was inadequate to protect plaintiff from falling through the hole in the deck, and there were no available lifelines to place on designated anchor points on which to tie off his safety harness. Defendants submitted deposition testimony and affidavits in which witnesses asserted that plaintiff and a partner were the designated “safety carpenters” on the site whose job it was to make the holes on the deck safe for all the workers, that there was a “strict protocol” that pieces of plywood covering holes were to be nailed down and marked “hole” and that the plywood over the hole through which plaintiff fell was personally placed by plaintiff. Defendants also submitted evidence that an appropriate fall protection system was in place with tie-off points.
The Court held that although plaintiffs presented contradictory evidence, including that plaintiff did not place the plywood in question and evidence that the use of the plywood as opposed to other material, and the failure to secure it, was done at the direction of supervisors, such credibility questions cannot be determined on a summary judgment motion.
PRACTICE POINT: An injured worker’s intentional or negligent conduct may be the sole proximate cause of the injuries where adequate safety devices are provided as required by the statute, but the worker either does not use or misuses them. Here, the injured worker was not entitled to summary judgment because defendants raised triable issues of fact as to whether plaintiff’s conduct was the sole proximate cause of his injuries, that he was the individual assigned to make holes in the deck safe for workers, and that he, in fact, placed the plywood in question.
Dyszkiewicz v City of New York
July 12, 2023
Appellate Division, Second Department
Plaintiff, an employee of the general contractor AEC, was moving various items from a third-floor classroom to the basement. After having made five to ten trips, traversing the same stairway, while carrying half of a metal doorframe down the stairway, he allegedly slipped on clear, sticky liquid on the top step going from the second floor to the first floor, falling thirteen steps to the first-floor landing. AEC had contracted with SCA to perform the renovation work.
The trial court granted defendants' motion for summary judgment dismissing the Labor Law § 241(6) claim based on alleged violations of Industrial Code (12 NYCRR) §§ 23-1.7(e) and 23-2.1(b), denied plaintiff's motion for summary judgment under § 241(6) on §§ 23-1.7(d) and 23-3.3(e), and denied plaintiff's motion for summary judgment on the Labor Law § 200 and common-law negligence claims, and a jury thereafter rendered a verdict in favor of defendants and against plaintiff on the issue of liability under § 241(6) and dismissed plaintiff’s complaint.
 Labor Law § 241(6) (TPW)
The Second Department affirmed the trial court’s decision to grant defendants' motions for summary judgment dismissing the Labor Law § 241(6) as predicated on alleged violations of 12 NYCRR 23-1.7(e) and 23-2.1(b). Defendants established that § 23-1.7(e)1) and (e)(2), which protect workers from tripping hazards, were inapplicable to the facts of this case since the accident was the result of a slipping hazard, not a tripping hazard, given plaintiff testified that he "slipped." Further, defendants established § 23-1.7(e)(2) also was inapplicable, as it applies to working areas and plaintiff testified that the staircase in which his accident occurred was a "passageway" as opposed to a "working area." In addition, the Court held the trial court properly granted defendants’ motions predicated upon a violation of § 23-2.1(b) as that provision is not sufficiently specific to support a claim under Labor Law § 241(6).
As to 12 NYCRR § 23-1.7(d) which relates to slipping hazards, the Court held that plaintiff's testimony was sufficient to conclude the liquid was not present on the stairway for a sufficient period to allow someone exercising reasonable care to remedy it, rendering that section inapplicable. 12 NYCRR § 23-3.3(e) "sets forth three methods that may be employed during demolition work for the manual removal of debris, brick or other materials". Here, it was reasonable to conclude that the provision was not violated because the Court held plaintiff was moving debris from one location within the school to another, as opposed to removing it from the building altogether for disposal.
Serpas v Port Auth. of N.Y. & N.J.
July 12, 2023
Appellate Division, Second Department
Plaintiff was injured while working at a construction project at John F. Kennedy International Airport which the City of New York leased to the Port Authority of New York and New Jersey. Scalamandre and Sons was the general contractor for the project. According to plaintiff, he was directed to retrieve a length of pipe from a hardstand, a slab of concrete that was twenty feet wide, twenty feet long, and eighteen inches high. He climbed onto the hardstand and picked up the pipe. He attempted to step down from the hardstand by stepping onto a lubricated, grease-covered rebar dowel that protruded from the side of the hardstand, but he slipped and fell from the rebar dowel. The trial court denied defendants summary judgment dismissing Labor Law § 200 and common-law negligence claims.
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed denial of summary judgment, finding that where plaintiffs allege that an accident involves both a dangerous condition on the premises and the means and methods of the work, a defendant moving for summary judgment as to Labor Law § 200 is obligated to address the proof applicable to both liability standards. In this case, the Court held that defendants failed to eliminate triable questions of fact as to the dangerous condition standard regarding whether the lubricated, grease-covered rebar dowel and placement of the pipe on the raised hardstand constituted dangerous conditions, whether defendants had actual or constructive notice of these conditions, and whether climbing onto and stepping down from the hardstand while retrieving the pipe was an inherent risk of plaintiff's work.
Estrella v ZRHLE Holdings, LLC
July 19, 2023
Appellate Division, Second Department
Defendant commenced a renovation project and retained plaintiff’s employer and nonparty, J.D. Developers, as the general contractor. Plaintiff was performing various tasks, as needed, at multiple job sites. He was assigned the task of removing damaged carpeting and flooring from a property adjacent to the subject premises, which allegedly had flooded as a result of renovations to the subject premises. When plaintiff went inside the subject premises to get a tool, he fell through a temporary plywood floor, which consisted of several pieces of plywood placed on top of beams.
The trial court denied plaintiff's summary judgment motion under Labor Law §§ 240(1) and 241(6) and granted defendant's summary judgment motion to dismiss those claims but denied defendant summary judgment dismissing the Labor Law § 200 claim.
Labor Law § 240(1) (MAS)
The Second Department reversed the trial court, determining plaintiff was at the subject premises to perform his duties ancillary to construction work and he established that he was exposed to an elevation-related risk for which no safety devices were provided, and that such failure was a proximate cause of his injuries. In opposition, the Court held that defendant failed to raise a triable issue of fact as to whether plaintiff was engaged in an enumerated activity, whether plaintiff was recalcitrant by deliberately failing to use available safety devices, or whether his actions were the sole proximate cause of his injuries, because there was no evidence that anyone instructed plaintiff that he was not to enter the subject premises or that he was to obtain the tools he needed to work on the adjacent property from somewhere else.
PRACTICE POINT: To establish a sole proximate cause defense, a defendant must demonstrate that plaintiff (1) had adequate safety devices available; (2) knew both that the safety devices were available and that they were expected to use them; (3) chose for no good reason not to do so; and (4) would not have been injured had they not made that choice. Here, defendants were not entitled to the defense because no safety devices were provided. Remember, it only takes one missing element to defeat the sole proximate cause defense, so make sure you can arguably demonstrate all four elements before filing your summary judgment motion.
Labor Law § 241(6) (TPW)
The Second Department affirmed the decision of the trial court which granted defendant’s motion for summary judgment dismissing the Labor Law § 241(6) claim. The Labor Law § 241(6) claims were predicated on alleged violations of Industrial Code 12 NYCRR §§ 23-3.3(k)(1)(i) and (l), which, by their express terms, apply only to demolition work. Since plaintiff was not engaged in demolition work, defined as “[t]he work incidental to or associated with the total or partial dismantling or razing of a building or other structure,” those sections of the Industrial Code were inapplicable.
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed denial of summary judgment as to Labor Law § 200 and common-law negligence as, in this “dangerous condition” case, defendant failed to establish that it did not create or have notice of the allegedly dangerous condition.
Skrok v Grand Loft Corp.
July 19, 2023
Appellate Division, Second Department
CNR and GRT entered into a Master Subcontract Agreement, which stated that CNR “intend[ed] to engage [GRT] in connection with one or more construction and/or maintenance projects.” The Agreement further stated: “CNR and [GRT] recognize that the projects and/or the scopes thereof are not sufficiently defined to allow the recitation thereof in this Agreement, but that the parties have agreed that this Agreement shall serve as a 'Master Agreement,' the terms of which shall apply to all Projects for which a Work Order (as defined herein) has been executed by CNR and [GRT].” The Agreement contained provisions requiring GRT to procure commercial general liability insurance naming CNR as an additional insured and to defend and indemnify, among others, CNR and the "Owner" for any claims “arising out of [GRT's] activities on the Project, pursuant to a Work Order and/or under this Agreement.”
CNR retained GRT to perform chimney renovation work on premises allegedly owned by Grand Loft. A proposal for the chimney renovation project was provided to CNR by GRT and approved by CNR (the Chimney Rebuilding Agreement). Plaintiff, an employee of GRT, was injured while working on the chimney renovation project. The trial court denied GRT’s motion for summary judgment dismissing the second third-party complaint and the third third-party complaint against it.
 Indemnity Issues in Labor Law (PCSM)
The Second Department affirmed the trial court’s finding that GRT failed to establish its entitlement to a dismissal of CNR’s contractual indemnification and breach of contract claims. The Court determined the Master Subcontract Agreement was ambiguous as to whether its terms applied to the Chimney Rebuilding Agreement, and that GRT failed to eliminate material issues of fact as to whether its indemnification and insurance procurement provisions applied to the project on which plaintiff was working. The Court, however, reversed the trial court’s finding as to CNR’s claims for common law indemnification and contribution against GRT. The Court, in reviewing plaintiff’s Bill of Particulars, determined that plaintiff did not sustain a “grave injury,” and, as such, CNR’s common law indemnification and contribution claims against GRT were barred by Workers’ Compensation Law § 11.
Cruz v 451 Lexington Realty, LLC
July 26, 2023
Appellate Division, Second Department
Plaintiff was injured while working as a laborer tasked with clearing debris from the first floor of a building that was being demolished when ductwork attached to the first-floor ceiling became detached on one end and fell a foot and a half, allegedly causing dirt and debris particles to fall into plaintiff's left eye. At the time of the incident, plaintiff had removed his protective eyewear in the designated “safety zone,” and he and the other workers were walking toward the exit to take a break. The trial court denied plaintiff's motion for summary judgment under Labor Law §§ 240(1) and 241(6), granted the cross-motion of 451 Lexington and Flintlock for summary judgment dismissing the complaint, and granted the cross-motion of City Limits which were for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims against it.
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s decision as 451 Lexington, Flintlock, and City Limits demonstrated that § 240(1) did not apply to the facts of this case and plaintiff failed to raise a triable issue of fact in opposition. Accepting arguendo plaintiff’s claim that his injuries flowed directly from the application of the force of gravity upon the falling ductwork, the trial court correctly determined that the ductwork, which was part of the preexisting building structure and was not being actively worked on at the time, was not an object that required securing for purposes of the undertaking. Moreover, contrary to plaintiff’s contention, the Court held that the nature and purpose of the work being performed at the time of the incident did not pose a significant risk that the ductwork would fall.
PRACTICE POINT: In cases such as this, involving falling objects, whether the statute applies does not “depend upon whether the object has hit the worker, but rather whether the harm flows directly from the application of the force of gravity to the object” and plaintiff “must demonstrate that at the time the object fell, it either was being hoisted or secured, or required securing for purposes of the undertaking.” Here, the statute was not implicated because the ductwork was part of the preexisting building structure, was not being worked on at the time of plaintiff’s incident, and did not pose a significant risk of falling.
Labor Law § 241(6) (TPW)
The Second Department affirmed the dismissal of the Labor Law 241(6) claims as defendants established 12 NYCRR § 23-1.7(a) was inapplicable to the facts of this case since the incident occurred in a location that was not “normally exposed to falling material or objects” within the meaning of that section. In opposition, the Court held plaintiff failed to raise a triable issue of fact and plaintiff failed to articulate any basis to disturb the trial court’s determination that plaintiff abandoned his reliance on any other provisions of the Industrial Code.
Ross v Northeast Diversification, Inc.
July 28, 2023
Appellate Division, Fourth Department
Plaintiff was working as a concrete finisher for Militello on a project to install concrete sidewalks and pavement at an elementary school owned by Hamburg. While performing that work, plaintiff slipped and tripped on a stone and fell into an 8-to-12-inch-deep trench that had been cut into the blacktop to allow the installation of a curb. Northeast was hired by Hamburg as the general contractor and subcontracted with Militello for the sidewalk work. Hamburg asserted crossclaims against Northeast for contractual and common-law indemnification and, in a third-party action, Northeast and Hamburg sought contractual and common-law indemnification from Militello. The trial court granted plaintiff’s motion for summary judgment under Labor Law § 240(1), denied defendants’ motion to dismiss that claim and denied defendants’ motion to dismiss the Labor Law § 241(6) claim based on an alleged violation of 12 NYCRR § 23-1.7(b)(1)(i).
Labor Law § 240(1) (MAS)
The Fourth Department reversed the trial court, denied plaintiff’s motion and granted defendants’ motion to dismiss the § 240(1), because plaintiff’s work involved only the demolition and restoration of a sidewalk and, thus, plaintiff was not engaged in the “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.” Although plaintiff argued that the trial court properly determined that the statute applied because the sidewalk work was part of a larger construction project, the Court held that plaintiff and his employer had no other role in the project and the sidewalk work “constituted a separate and distinct phase of the overall project.”
PRACTICE POINT: We analyze every Labor Law case using the same four criteria: (1) appropriate plaintiff; (2) appropriate defendant; (3) appropriate activity; and (4) elevation-related/gravity-related risk. Here, the injured worker failed to convince the Fourth Department that he was engaged in a covered/appropriate activity and that his injuries were caused by an elevation-related/gravity-related risk when installing a concrete sidewalk.
Labor Law § 241(6) (TPW)
The Fourth Department unanimously modified the trial court’s decision as to the Labor Law § 241(6) claim insofar as it was based on the alleged violation of 12 NYCRR § 23-1.7 (b)(1)(i), which applies to any “hazardous opening into which a person may step or fall . . . provided that [it is] one of significant depth and size.” The trench into which plaintiff fell was of insufficient depth and size to constitute a hazardous opening; therefore, that code section was inapplicable. Further the trial court properly denied defendants’ motions to dismiss the alleged violations of 12 NYCRR §§ 23-1.7 (d) and (e)(2) and 23-2.1 (b). With respect to §§ 1.7 (d) and (e)(2), the Court found issues of fact concerning who was responsible for clearing up the loose stones that allegedly caused plaintiff to slip and trip, and whether those stones constituted a “foreign substance which may cause slippery footing,” preclude a determination as a matter of law.
Verdugo v Fox Bldg. Group, Inc.
July 28, 2023
Appellate Division, Fourth Department
Plaintiff fell and was injured while installing roof trusses. On the day of the accident, the roof trusses were raised, two at a time, by a crane, to plaintiff, a carpenter, whose duties included securing the trusses to the frame of the building, thirteen to fourteen feet above the ground, while wearing a body harness with a four-foot-long lanyard. Plaintiff was injured after the crane cable became entangled with a truss, which was unsecured, and upon which plaintiff was standing, causing the truss and plaintiff to fall to the ground. The trial court denied plaintiff's motion for summary judgment and granted defendants' motions for summary judgment dismissing the Labor Law § 240 (1) claim.
Labor Law § 240(1) (MAS)
The Fourth Department reversed the trial court and denied defendants’ summary judgment motions, finding that plaintiff’s testimony raised triable issues of fact as to whether an adequate safety device was readily available under § 240(1) in that plaintiff knew he was expected to use but for no good reason chose not to do so, causing an accident and whether he would not have been injured had he not made that choice.
PRACTICE POINT: In evaluating the sole proximate cause defense, courts hold that the failure to follow an instruction by an employer or owner to avoid unsafe practices does not constitute a refusal to use available, safe, and appropriate equipment and, thus, will not render an injured worker the sole proximate cause of their injuries. An injured worker’s decision to employ one method of performing a necessary task, even if a safer method exists, constitutes nothing more than comparative fault, which is not a defense under the statute.
 New York Industrial Code Regulations (EDA)
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Note from David R. Adams:
