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Volume XIII, No. 1
Wednesday, December 6, 2023
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 Note from David R. Adams:
Do you have a situation? We love situations. Give us a call, send an email, drop by; we truly enjoy solving complex Labor Law and Risk Transfer issues.
Happy Holidays to all, from us here at HF. We hope everyone is enjoying the season. Seems to me that there used to be a slowdown in December; clearly not anymore. Everyone I talk to is busy, with no break in sight. Take some time to slow down over the holidays and enjoy your family and friends.
For our first offering of the month, we have a homeowner, let's call him Andy, who just happens to be in the insurance industry and very knowledgeable about Labor Law. He decided that he was going to have his kitchen remodeled in his home. Andy is a bad combination of a control freak and somewhat tight with his money. As a result, to save money, he decided that he did not need a general contractor, and he would hire the trades directly. He tried his best to stay away while work was being done, having a sound knowledge of the exemption for single-family homeowners who do not supervise, direct, or control the work. Occasionally, however, he could not control his urges and he would stick his head in to see exactly what was happening.
On one such morning, he stuck his head in before the workers had arrived and saw, to his dismay, that they had erected a Tower of Babel to reach the very expensive chandelier his wife had ordered for the cathedral ceiling over the island. The workers he hired placed a table on the floor, with a step ladder balanced on it, with clamps attempting to hold the ladder to the table. As if that was not enough, atop the ladder was a bucket, balanced on the top, to provide a bit more height to reach the chandelier. As there were no workers present, Andy wrote a note to the crew, telling them not to use the table/ladder/bucket set up, but rather, to find a different method to reach the light, and instructing that they find a taller ladder. He placed the note on the table next to the ladder and went to work. When he arrived home, he saw that the table/ladder/bucket set up was on the ground and there was blood on the floor. When he asked the workers why they used that set up when he had left a note, they said that there was not enough room in the kitchen to open a taller A-frame ladder and thus, they used the tower they had constructed, but a worker had fallen and been injured. § 240(1)?
This disappointing photo was generated after we put the scenario into AI. We hoped that we could create the most bizarre scenario and AI would generate a picture to accurately represent it; but to no avail.
Here, the plaintiff’s case will turn on the amount of control exercised by the owner. Plaintiff will point out the key wording in the note. The owner in his note “told them not use the table/ladder/bucket”, directed that they “find a different method to reach the light” and further specifically was “instructing that they find a taller ladder.” The homeowner’s argument will be that if he had the type of control over the workers necessary to impose liability, then they would not have used the tower to attempt their work.
In my mind, once the homeowner takes that step to issuing recommendations as to the means and methods of the work, he has jeopardized his exception to the statute.
Once we were this deep into AI, we decided to ask ChatGPT the same question, and it seemed to have a general grasp of the situation. Honestly, it’s a pretty good answer, but I think our jobs are safe (for a while, at least). Spotted some issues but missed some important stuff. The ChatGPT answer is below.
In our second situation of the month, we have a roof replacement in progress on an apartment building. A laborer is carrying shingles to the peak for installation, when he falls through the sheathing. There had been no indication that the roof might give way, and there was no intention to replace the sheathing. § 240(1)?
Here the applicability of § 240(1) will turn on the foreseeability of this type of accident and resulting injury.
As Eric Andrew explains: While falling through an unprotected open hole in a roof would be a 240(1) claim, in this case the hole was created by the roofer walking on the sheathing with the added weight of the shingles causing the sheathing to fail. Unless the roof “was in such an advanced state of disrepair and decay from neglect, vandalism, and the elements that the plaintiff's work on the [roof] exposed him to a foreseeable risk of injury from an elevation-related hazard, and whether the absence of a type of protective device enumerated under Labor Law § 240(1) was a proximate cause of his injuries.” Mendoza v Highpoint Assoc., IX, LLC, 83 A.D.3d 1, 11-12 (1st Dept 2011).
As Eric Bernhardt explains: There is no requirement that they intended to replace the sheathing. Working on a roof is the kind of extraordinary elevation-related hazard to which Section 240(1) is intended to apply. Moreover, it is foreseeable that, during the process of replacing the roof, they could discover inadequate sheathing (although perhaps not in this fashion). Plaintiff’s injuries likely could have been prevented if he was tied off with a lanyard and harness, lifeline, or other safety device. The absence of such safety devices is a violation of the statute.
Sounds like a question of fact for the jury to me. Many times, as we have all learned, predicting the court’s decision is a bit like betting on horses. In a case where foreseeability is an issue, and it is rare in Labor Law cases, generally it becomes a decision for the jury, but we have seen it go both ways.
Our third photo of the month is a cautionary – or potentially instructive – tale for construction workers. I think this one speaks for itself:
I am very certain the entire concept that an accident would not have occurred, but be claimed to have occurred, is a shock to us all.
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
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]
Labor Law Pointers is published the first Wednesday of each month. If you know of others who may wish to subscribe to this free publication, please feel free to forward it. If you wish to subscribe or unsubscribe, please send an e-mail to [email protected] or call the Editor/Labor Law Team Leader David R. Adams directly at (716) 849-8916.
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November 09, 2023
Appellate Division, First Department
Plaintiff was directed to stand on a plywood sheet covering a bathtub, while framing a window three feet off the floor, when the plywood sheet lifted, causing him to fall to the floor. The trial court granted plaintiff's motion for partial summary judgment under Labor Law § 240(1) and denied Exotic's motion for summary judgment dismissing that claim.
 Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s decision. By placing the plywood over the bathtub on which plaintiff was required to work, Exotic created the functional equivalent of an elevated platform or scaffold. The Court held that Exotic failed to rebut this showing or those raise an issue of fact.
PRACTICE POINT: The unsecured plywood sheet was the functional equivalent of an enumerated safety device (a scaffold), but proved inadequate, because it gave way, causing Plaintiff to fall. Therefore, it failed to protect the worker from the gravity-related risk, and that failure was a proximate cause of his injuries.
Pursuant to a contract with nonparty New York City Department of Education, Light Tower retained Hellman to install fiber optic cables in manholes to provide internet access to NYC public schools. Verizon Communications, Inc., is a holding company that owns Verizon New York, Inc., and ECS. ECS leases manholes and conduits to telecommunications companies and owns the subject manhole. At the time of the accident, plaintiff had been employed by Hellman as an electrician hired to run the fiber optic cables. Plaintiff testified he entered the manhole by climbing down a permanent ladder. While he was crouching directly under the manhole opening and pushing the snake by hand into a hollow pipe running parallel to the manhole wall, a vacuum, which weighed between 20 to 30 pounds, fell into the manhole and struck him on the head.
The trial court denied plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim and the Labor Law § 241(6) claim as based on a violation of Industrial Code (12 NYCRR) § 23-1.7(a)(1), granted the motions Verizon New York, Inc., Verizon Communications, Inc., and ECS, for summary judgment dismissing those claims against them, granted Light Tower’s motion dismissing those claims as well as the Labor Law § 200 and common-law negligence claims against it, and granted Hellman’s motion seeking dismissal of those claims.
Labor Law § 240(1) (MAS)
The First Department affirmed dismissal of Labor Law claims against Verizon, which did not own the property. However, the Court reversed the trial court’s decision and should have granted plaintiff’s motion for partial summary judgment under Labor Law § 240 (1) claim against ECS and Light Tower because plaintiff was engaged in an “altering” activity under the statute. The Court held that plaintiff’s work was part of a much larger, multi-worker project to install a fiber optic network through a 20-manhole structure where none had previously existed, with the goal of installing the cables into the school buildings, which would necessarily require drilling holes into the foundation of the school buildings to reach the communications room.
The Court further held that the vacuum that fell from ground level into the manhole and struck plaintiff on the head posed the type of elevation-related risk protected under § 240 (1). The Court found that the vacuum’s initial position at ground level does not remove this case from the ambit of the statute because the object fell onto plaintiff while he was working underground.
PRACTICE POINT: Running new cables throughout a building, which included drilling holes into the foundation, constitutes an “alteration” under Labor Law § 240(1). The failure to prevent the vacuum from falling into the manhole is the type of gravity-related hazard that the statute was designed to protect against.
 Labor Law § 241(6) (TPW)
Given the First Department’s decision regarding plaintiff’s motion for summary judgment under Labor Law § 240(1), the Court determined the claims under Labor Law § 241(6) claim were rendered moot.
 Labor Law § 200 and Common-Law Negligence (ESB)
The First Department held that, because it granted plaintiff’s motion as to liability on the Labor Law § 240(1) claim as against ECS, Light Tower, and Hellman, the § 200 and common-law negligence claims were rendered moot, so the Court would not address them further.
Plaintiff fell from the top of scaffolding materials that had been stacked on the back of a flatbed truck. The scaffolding materials were stacked on the truck so that the top was 18 feet off the ground, and as plaintiff walked on them, he tripped over a board and fell to the sidewalk. Although he wore a safety harness, he was not able to tie it off on the back of the truck. The trial court granted plaintiff's motion for summary judgment on the issue of liability on his Labor Law §§ 240(1) and 241(6) claims, granted the cross-motion of Nordest dismissing plaintiff's complaint against it, dismissing the cross-claims asserted against it by One Boerum and dismissing the crossclaims asserted against it by Rock Group, and denied the cross-motion for summary judgment dismissing the common-law indemnification and contribution crossclaims asserted against it by Noble and insofar as it sought summary judgment in its favor on its contractual indemnification claims as against Rock Group, granted the motion of One Boerum dismissing Noble's, Nordest's, and Rock Group's claims against it.
The trial court also denied the motion for summary judgment dismissing plaintiff's Labor Law § 241(6) claims against it and for judgment in its favor on its cross-claims against Noble, Nordest, and Rock Group for breach of contract for failure to procure insurance, common-law and contractual indemnification, and contribution, and denied Noble's motion for summary judgment dismissing plaintiff's Labor Law §§ 240(1) and 241(6) claims and all cross-claims against it and for judgment in its favor on its cross-claims for contractual indemnification as against Nordest and Rock Group.
Labor Law § 240(1) (MAS)
The First Department affirmed the trial court’s decision because plaintiff fell from a height while performing a covered activity and was not provided with a proper safety device. That plaintiff’s fall was precipitated by his tripping on one of the boards on the back of the truck does not remove his accident from the statute’s ambit.
PRACTICE POINT: If the worker simply fell from the truck’s flatbed while unloading the materials, the statute would not apply. Falling from atop a load of scaffolding materials on a flatbed truck, when being on top of them is the only way to unload the materials, is a violation of Labor Law § 240(1) because the injury was caused by falling from a height, while performing an activity covered by the statute, where safety devices enumerated under the statute could have prevented the fall.
Labor Law § 241(6) (TPW)
The First Department held that considering the determination that plaintiff was entitled to summary judgment on the issue of liability on his Labor Law § 240(1) claim, the issue of defendants' liability under Labor Law § 241(6) was academic.
 Indemnity Issues in Labor Law (BFM)
The Appellate Division upheld the lower Court’s dismissal of Rock Group’s and Nordest’s claims against One Boerum. Regarding the contractual claims, the Court held that neither Rock Group nor Nordest provided evidence that One Boerum was contractually obligated to indemnify or procure insurance for either party. Regarding the common-law claims, the Court held there is no evidence that One Boerum supervised or, in any way, contributed to plaintiff’s accident. Thus there was no basis to determine that One Boerum was negligent.
Regarding One Boerum’s claim for common-law indemnification and contribution against Noble, the Court held that there was no basis to find them negligent as it is undisputed that Noble was not at the site of the accident and did not supervise or otherwise contribute to plaintiff’s accident. Regarding One Boerum’s contractual claims against Noble, although the Court found that the indemnification agreement applies, due to the negligence trigger, One Boerum’s motion is premature as negligence has yet to be determined.
The lower Court’s decision to grant Nordest summary judgment dismissing One Boerum’s and Rock Group’s common-law indemnification and contribution claims was upheld. However, the Court found that Nordest should have been granted summary judgment dismissing Noble’s claims.
The Court held that Nordest’s motion for summary judgment dismissing One Boerum’s contractual indemnification claim should have been denied. The indemnification agreement in Nordest's contract with Noble requires Nordest to indemnify Noble and One Boerum for claims “that in any way or measure are caused by, arise out of or in connection with the Work or any act or omission of [Nordest], Sub–Contractor ... or any employee (whether directly or indirectly employed),” and plaintiff's accident arose out of his work with a sub-sub-subcontractor retained by Rock Group, who was itself retained by Nordest.
The Court upheld the lower Court’s decision to deny One Boerum’s motion for summary judgment on its breach of contract claim against Nordest and Rock Group. One Boerum’s claim was based on Nordest’s and Rock Group’s insurer failure to provide additional insured coverage to One Boerum, not on Nordest's or Rock Group’s actual failure to procure insurance naming One Boerum as an additional insured.
As for Rock Group, the indemnification agreement in its sub-subcontract with Nordest contains a negligence trigger. Accordingly, One Boerum was properly denied summary judgment as against Rock Group on its contractual indemnification claim as well as on its common-law indemnification and contribution claims.
Plaintiff, while working on a construction site, walked down a staircase to reach his work area. Other staircases were present at the construction site. Plaintiff carried a heavy bucket of cement in one hand and a four-foot-long level in the other. At the bottom, he tripped on an uncovered gap between the stairs and the landing. He testified he was unable to grab the handrail because his right hand was holding the bucket of cement. The trial court denied plaintiff's motion for summary judgment on his Labor Law § 240(1) claim and summary judgment dismissing defendants' affirmative defenses alleging assumption of risk and comparative negligence.
Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court’s decision and granted summary judgment to plaintiff dismissing the assumption of risk affirmative defenses and otherwise affirmed. Given the existence of other means of access to the worksite, the Court held there is an issue of fact as to whether the staircase that plaintiff descended constituted a safety device under Labor Law § 240(1).
PRACTICE POINT: Here, the worker failed to eliminate all triable issues of fact as to whether the stairs on which he fell constituted a safety device and/or an elevated work platform that required an adequate safety device. By failing to oppose the motion, defendants abandoned their affirmative defense.
Plaintiff fell from a scaffold at a construction site. The jury answered “Yes” to the special interrogatory, “Did the accident happen substantially in the manner claimed by plaintiff?”, but “No” to the following interrogatory of whether defendants, in effect, violated Labor Law § 240(1). Had the jury answered “Yes” to that interrogatory, it would have then been asked whether defendants' violation of Labor Law § 240(1) was a proximate cause of plaintiff's accident and injuries; however, it did not answer that interrogatory, given its finding that defendants did not violate the statute. The trial court entered judgment on a jury verdict in favor of defendants dismissing the complaint and denied plaintiff's motion to set aside the verdict.
Labor Law § 240(1) (MAS)
The First Department reversed the trial court as the jury’s verdict was against the weight of the evidence, finding the scaffold on which plaintiff was working at the time of his incident failed to adequately protect him from a height-related hazard when his core drill jerked, causing him to fall backward. Since the remedy for a verdict that is against the weight of the evidence is a new trial, the issues of whether defendants violated § 240(1), whether such violation proximately caused plaintiff’s accident and injuries, and damages should be retried.
PRACTICE POINT: It did not matter whether the fall was the result of the scaffold tipping or was due to the worker miss-stepping off its side, because in either of those situations, either defective or inadequate protective devices constituted a proximate cause of the incident.
Plaintiff, a project manager at a construction site, was injured while riding in a personnel hoist at the site. According to plaintiff, a roof access ladder that had been mounted on the hoist ceiling partially detached from where it had been secured and struck him on the head from a height of seven-to-eight feet. The ladder was stored by use of a bolt, wingnut, and washer, which together secured the ladder to the ceiling, and an incident report later noted the ladder detached because the washer that was welded to the rung of the ladder broke at the weld.
The trial court denied plaintiffs' motion for summary judgment on the Labor Law § 240(1) claim against Memorial Hospital and Turner Construction and granted the motion of defendants Memorial Hospital, Turner Construction, and Safeway Atlantic, LLC for summary judgment dismissing the complaint except as it sought dismissal of the common-law negligence claim against Safeway Atlantic.
Labor Law § 240(1) (MAS)
The First Department reversed the trial court’s decision and granted summary judgment to plaintiff, who demonstrated that the access ladder “required securing for the purposes of the undertaking.” Here, the hoist – an enumerated safety device – was “inadequate for its purpose of keeping plaintiff safe while engaged in an elevated-related activity.” The Court also reversed the trial court’s decision and denied defendants’ motion with respect to the Labor Law § 240(1) claim.
PRACTICE POINT: With respect to falling objects, Labor Law § 240(1) is violated where the falling object required securing for the purposes of the undertaking. In this case, to safely use the personnel hoist, the access ladder needed to be secured in place.
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed dismissal of the Labor Law section 200 claim against Memorial Hospital and Turner. It held, in this “dangerous condition” case, the record established that those defendants did not have actual or constructive notice of the condition and did not create it. Further, as Safeway was neither an owner nor general contractor, it could not be liable under Labor Law § 200. However, it held the trial court properly denied Safeway’s motion as to common-law negligence. The record established that Safeway furnished and installed the hoists and inspected them every 90 days, along with the instruments that attached the ladder to the ceiling. Safeway, however, proffered no evidence establishing that it installed the personnel hoist without negligence. Therefore there was a triable question of fact as to its negligence.
Plaintiff was injured when he fell from a scaffold while "working within" a building on a construction site. The trial court denied Omega’s and Triera’s motions for summary judgment dismissing the complaint against them.
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s decision granting summary judgment against Omega but reversed as to Triera. The Court held that Triera demonstrated, through an affidavit from its president and several corroborating business documents, was not a proper Labor Law defendant because it was not owner and lacked the requisite supervisory control or authority over plaintiff’s injury-producing work because it erected scaffolding only on the exterior of the building.
PRACTICE POINT: When opposing a motion for summary judgment on the grounds that it is premature, the nonmoving party must offer evidentiary proof to suggest that additional discovery may lead to relevant evidence, or that facts essential to opposing the motion were exclusively within the knowledge and control of the movant. Not only did the Court find that plaintiff failed to make such a showing, but it also dismissed the complaint against Triera, which offered evidence proving it was not an agent of the owner or general contractor, as it lacked supervisory control and authority over the injury-producing work.
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department reversed the trial court’s order as to Triera and dismissed the § 200 claim against it, holding that it demonstrated, through an affidavit from its president and several corroborating business documents, that it had no supervisory control or authority over the work being done where the plaintiff allegedly was injured, since Triera erected scaffolding only on the exterior of the building. Further, for that same reason, it could not be held liable under a common-law theory of negligence for improper installation of the scaffold from which the plaintiff allegedly fell. Omega, however, submitted only a self-serving and conclusory affidavit from its president in support of its motion. Accordingly, its motion properly was denied.
Plaintiff was performing carpentry work at a building owned by defendant when he struck his foot on plywood that was covering a hole in the floor causing him to trip. The trial court granted defendant's motion for summary judgment dismissing the Labor Law § 241(6) predcated on violations of 12 NYCRR 23-1.7(b), (e)(1) and (2) as well as § 200.
Labor Law § 241(6) (TPW)
The Second Department held that defendant established its entitlement to judgment as a matter of law dismissing the Labor Law § 241(6) claim predicated on a violation of 12 NYCRR 23-1.7(b) by demonstrating that the four-inch hole covered by the piece of plywood was too small for the plaintiff to fall though. With respect to the alleged violations of 12 NYCRR 23-1.7(e)(1) and (2), the Cout held that defendant established its entitlement to judgment as a matter of law by showing that the area where plaintiff alleged that he fell was not a passageway and the plywood upon which plaintiff alleged he tripped was an integral part of the construction work being performed. In opposition, the Court further held that plaintiff failed to raise a triable issue of fact.
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department held that defendant’s motion should have been denied as to the Labor Law § 200 claim. In this hazardous condition case, the Court noted that a property owner has constructive notice of a dangerous condition “when the condition is visible and apparent and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it.” Defendant failed to demonstrate that it lacked constructive knowledge of the alleged dangerous condition because it did not submit any evidence that the plywood was a latent defect that could not have been discovered upon a reasonable inspection. Accordingly, the motion should have been denied.
Plaintiff was working as a carpenter on a construction project when he tripped and fell on a raised or bowed piece of Masonite board while carrying materials along a walkway. He subsequently sued the lessee of the premises, Conde Nast, and the general contractor on the project, Turner Construction. The trial court denied plaintiff’s motion for summary judgment on the issue of liability on the § 241(6) claim.
Labor Law § 241(6) (TPW)
The Second Department reversed the trial court’s decision and granted plaintiff’s motion for summary judgment on Labor Law § 241(6). Plaintiff relied on 12 NYCRR § 23-1.7(e)(1), which provides, in pertinent part, that “[a]ll passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping.” Here, the Court held that plaintiff established he fell over a tripping hazard in a passageway in the form of a raised or bowed piece of Masonite board, and that this unsafe condition was the proximate cause of his injuries. In opposition, the Court held that defendants failed to raise a triable issue of fact.
Plaintiff was injured when he fell off a ladder while working at a job site owned by Bayles. In their answers, Bayles and Ressa asserted crossclaims against CS Stucco for contractual and common-law indemnification. The trial court granted the motions of Bayles and Ressa, which were for summary judgment on their crossclaims against CS Stucco for contractual and common-law indemnification.
Indemnity Issues in Labor Law (BFM)
The Appellate Division reversed the lower Court’s decision granting Bayles and Ressa summary judgment for common-law indemnification against CS Stucco. The Court held that Bayles and Ressa failed to meet their initial burden in that they didn’t eliminate all triable issues of fact as to whether CS Stuff was negligent or direct or supervised the work that gave rise to plaintiff’s injuries.
However, the Appellate Division upheld the portions of Bayles; and Ressa’s motion for contractual indemnification. The Court held that although the hold harmless agreement was executed after the date of plaintiff’s accident, Bayles and Ressa demonstrated that the parties intended the agreement to apply retroactively, and Bayles and Ressa demonstrated that they were free from active negligence in connection with plaintiff’s injuries.
Plaintiff fell from a scaffold on a construction site and was injured. He sued PTB, which owned the premises. Thereafter, PTB and Franco Filippelli commenced a third-party action for common-law indemnification against, among others, Vana, plaintiff's employer, which leased the premises. PTB and Vana are separate corporate entities, but the sole officer and shareholder of both corporations is Filippelli. In April 2019, PTB terminated the services of its retained counsel because it could no longer afford counsel's representation, but it did not discontinue the third-party action. The trial court granted plaintiff's motion to appoint pro bono counsel to represent Panda to Brasil Corp.
Indemnity Issues in Labor Law (BFM)
While this case this case discusses indemnity, it was not about indemnification. The issue was whether the third-party plaintiff could be dismissed since the third-party plaintiff attorney had withdrawn as counsel and CPLR321(a) required that a corporation be represented by counsel.
Plaintiff was injured while performing pointing work on the facade of a building owned by defendant Condominium Board and managed by G Buddy. Plaintiff was allegedly injured when a rope scaffold on which he was working, which he was operating alone, swung and hit the building. The trial court granted plaintiff's motion for summary judgment on the Labor Law § 240(1) and (2) claims and denied defendants' cross-motion for summary judgment dismissing the Labor Law §§ 240(1), (2), and 241(6) claims asserted against G Buddy, Inc.
Labor Law § 240(1) (MAS)
The Second Department reversed the trial court’s decision as against G Buddy, who established that it was not an agent of either the Board or the contractor at the time of plaintiff’s incident by submitting evidence that it had no control or supervisory responsibilities on the worksite. For the same reasons, the Court also reversed the trial court’s decision to grant plaintiff’s motion against G Buddy. However, the Court affirmed summary judgment by plaintiff against the Board, finding no bona fide dispute as to whether plaintiff’s incident occurred while he was working on a rope scaffold that failed to provide proper protection.
PRACTICE POINT: To hold a defendant liable as an agent of the general contractor or the owner for purposes of Labor Law § 240(1), there must be a showing that it had the authority to supervise and control the work that brought about the injury. Here, G Buddy showed it had no such authority and was, therefore, entitled to summary judgment.
Labor Law § 241(6) (TPW)
The Second Department modified the underlying Labor Law § 241(6) decision insofar as asserted against the defendant G Buddy, Inc. Defendants' cross-motion for summary judgment dismissing the Labor Law § 241(6) cause of action should have been granted. G Buddy established that it was not an agent of either the Board or the contractor at the time of the plaintiff's accident by submitting evidence demonstrating that G Buddy had no control over or supervisory responsibilities on the worksite. In opposition, plaintiff failed to raise a triable issue of fact.
Plaintiff, an employee of third-party defendant All City, was tasked with delivering large glass panels to a worksite located in Manhattan. The glass panels were each 8 feet by 5½ feet long, one-quarter-inch thick, and each weighed 60 pounds. To transport the glass panels to their destination, plaintiff and other All City Glass employees loaded two to four glass panels at a time onto an A-frame cart by leaning the panels against the frame. While plaintiff and other All City Glass employees were transporting glass panels to the worksite, the wheel of the A-frame cart got caught on something, causing the cart to stop and the glass panels to fall. He attempted to prevent the glass panels from falling, but the falling panels hit him on the head and shattered on him.
The trial court denied defendants' motion for summary judgment dismissing the Labor Law § 240(1) claim and the Labor Law § 241(6) claim predicated on violations of 12 NYCRR 23-1.28. The court also denied plaintiff's cross-motion for summary judgment on the Labor Law § 240(1) claim and the Labor Law § 241(6) claim predicated on a violation of 12 NYCRR 23-1.28(b).
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s decision as neither plaintiff nor defendants eliminated triable issues of fact as to whether this accident was the result of an elevation-related hazard or gravity-related risk encompassed by Labor Law § 240(1). There is no evidence in the record as to the height of the cart, or the height of the glass panels once loaded onto the cart. However, there is evidence that the glass panels fell from such a height as to hit plaintiff on the head, and with such force as to knock him to the ground and render him briefly unconscious. The Court also found evidence that All City Glass employees typically utilized belts to secure glass panels during transport but were unable to do so in this instance because they were not provided belts large enough to secure the panels being moved. Accordingly, the Court held there are triable issues of fact as to whether a belt securing the glass panels would have been necessary or expected and whether plaintiff’s incident was caused by the absence of such belts.
PRACTICE POINT: Burden of proof matters. Where neither plaintiff nor defendants eliminate all triable issues of fact as to whether the incident was the result of an elevation-related hazard or gravity-related risk covered under Labor Law § 240(1), neither party is entitled to summary judgment.
Labor Law § 241(6) (TPW)
The Second Department affirmed the trial court’s decision denying both plaintiff’s and defendants’ motions for summary judgment as to the Labor Law § 241(6) claim predicated on violations of 12 NYCRR 23-1.28. As a preliminary matter, plaintiff abandoned on appeal the argument that he should have been granted summary judgment predicated on violations of 12 NYCRR 23-1.28(a) and (c). As to an alleged violation of 12 NYCRR 23-1.28(b) which states, “[w]heels of hand-propelled vehicles shall be maintained free-running and well secured to the frames of the vehicles”, the Court found triable issues of fact as to whether the cart from which the glass panels fell onto the plaintiff was caused to stop suddenly due to a wheel that was not maintained in a "free-running" manner precluding resolution of the issues on motion.
Plaintiff, an employee of nonparty Verizon, was injured when he dove underneath his truck in response to an “explosion,” which occurred during the hoisting of a portion of a damaged utility pole by defendants’ employees. Plaintiff was part of a work crew for Verizon that was dispatched, along with crews for defendants, to replace the utility pole after it was struck and damaged by a vehicle. At the time of the incident, plaintiff was standing 150 feet away from the utility pole and was waiting for defendants' employees to remove the upper half of the pole, which snapped off the base and energized power lines attached to it. Plaintiff and his crew were waiting to install a new utility pole after the completion of defendants' work. The trial court granted defendants' cross-motion for summary judgment dismissing the Labor Law §§ 200, 240(1), and 241(6) claims, and denied plaintiff's motion for summary judgment on those same claims.
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s decision as defendants established that plaintiff’s injuries did not flow directly from the application of the force of gravity to an object or person and thus, were not caused by an elevation-related or gravity-related risk covered under Labor Law § 240(1).
PRACTICE POINT: Although the incident tangentially involved elevation, the worker's injuries were not caused by any elevation-related hazards when he dove underneath his truck, and thus, § 240(1) did not apply.
Labor Law § 241(6) (TPW)
The Second Department reversed the trial court’s decision under Labor Law § 241(6) and determined that neither party was entitled to summary judgment due to lingering questions of fact. The scope of Labor Law § 241(6) is governed by 12 NYCRR 23-l.4(b)(13) which defines "construction" work to include all work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures. Although maintenance work performed in connection with construction, demolition, or excavation work is included under Labor Law § 241(6), routine maintenance is not.
Defendants failed to establish that the work they were performing at the time of the incident constituted routine maintenance or repairs. The incident occurred while defendants were hoisting a portion of the utility pole to enable the total replacement of the pole, which had been severely damaged after a vehicle hit the pole. Thus, the Cour t held that defendants failed to demonstrate the work involved merely replacing components that require replacement in the course of normal wear and tear. Furthermore, plaintiff failed to eliminate triable issues of fact as to whether the Industrial Code provisions were applicable to the circumstances of this incident.
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department reversed the trial court’s decision granting defendants’ motion for summary judgment as to Labor Law 200 and common-law negligence. Regarding “means and methods,” it held that defendants failed to establish that they had no authority to supervise or control the work being performed by their own employees at the time of the incident. To the extent the plaintiff alleged his incident was caused by a dangerous condition, defendants did not address the issues of whether they created or had actual or constructive notice of a dangerous condition. Accordingly, summary judgment should have been denied. Similarly, the Court affirmed denial of plaintiff’s motion as to Labor Law 200 and common-law negligence, because he did not eliminate triable issues of fact as to the cause of the incident and as to whether defendants performed the hoisting of a portion of the utility pole in a deficient manner
Plaintiff was injured when he fell while working on a ladder in a building owned by American Park and leased by Iron Smoke. Plaintiff's employer was a contractor hired to install a new plumbing, heating and cooling system in the building. At the time of the incident, plaintiff and his coworker were removing the original ductwork. The ducts were in long strips, which were first removed from the straps holding them. Plaintiff and his coworker then carried the ducts, while resting them on their shoulders, down their respective ladders. Plaintiff was on his ladder when a duct that was being removed from its straps slipped from his hand, and then hit a wall and then hit plaintiff's ladder, causing the ladder and plaintiff to fall. The trial court granted plaintiff's motion for summary judgment and denied defendants' cross-motion with respect to the Labor Law § 240 (1) claim.
Labor Law § 240(1) (MAS)
The Fourth Department unanimously affirmed the trial court’s decision as plaintiff established his initial burden of showing the ladder was not so placed as to give proper protection to him and defendants failed to raise a triable issue of fact as to whether plaintiff’s own conduct, rather than any violation of Labor Law § 240(1), was the sole proximate cause of his incident.
PRACTICE POINT: Because plaintiff established that a statutory violation was a proximate cause of his injury, his own conduct could not be the sole proximate cause for the injury and, plaintiff’s contributory negligence is not a defense under Labor Law § 240(1).
While working on a construction project and walking between job assignments, plaintiff slipped and fell on ice. His complaint asserted violations of Labor Law §§ 241 (6) and 200 against Dominion, the property owner, and LMC Industrial, the general contractor (collectively, defendants). LMC Industrial commenced a third-party action seeking defense and indemnification from O'Connell, plaintiff's employer. The trial court granted in part the motions of LMC Industrial and Dominion for partial summary judgment on their third-party complaint.
Indemnity Issues in Labor Law (BFM)
The Fourth Department reversed the trial court’s order and denied defendant/third-party plaintiffs’ motions for partial summary judgment as to defense and indemnification. Regarding contractual indemnification, the contract in question called for indemnification, but “only to the extent caused by the negligent acts or omissions of [O'Connell or its agents].” The Court found, however, that defendants did not eliminate all triable questions of fact whether plaintiff's claims arose from the negligent acts or omissions of O'Connell. Similarly, because the duty to defend a contractual indemnitee is no broader than the duty to indemnify, defendants failed to establish that they were entitled to past and future defense and litigation expenses as contractual indemnitees. Lastly, the Court held that the claim for indemnification and defense costs based on defendants’ status as additional insureds on O’Connell’s insurance policy relate to the obligation of O'Connell's insurance company and are separate and apart from those rights that may be asserted against O'Connell. Accordingly, the appropriate venue for those claims would be a separate declaratory judgment action against the insurer.
Plaintiff, an employee of third-party defendants, was working on a demolition and abatement project on a building owned by Episcopal SeniorLife Communities alongside his supervisor on a scissor lift to remove a second-story window when, with the metal flashing and caulk having been removed from the window, the supervisor granted plaintiff permission to use the bathroom and lowered the lift to the ground, after which the window fell and struck plaintiff in the head. The trial court denied plaintiff’s motion for partial summary judgment on the issue of liability on the Labor Law § 240 (1) claim and granted the cross-motion of third-party defendants for summary judgment and dismissed the third-party complaint as plaintiff did not sustain a grave injury.
Labor Law § 240(1) (MAS)
The Fourth Department reversed the trial court’s with respect to plaintiff’s motion on his Labor Law § 240 (1) claim. The record established that plaintiff’s conduct was not the sole proximate cause of the incident and the Court concluded that his “conduct during the [window removal] process ‘raises, at most, an issue concerning his comparative negligence, which is not an available defense under Labor Law § 240 (1).’”
PRACTICE POINT: Critical to the court’s analysis is that plaintiff performed the injury-producing work pursuant to the directions and example of his supervisor because, under such circumstances, plaintiff’s conduct regarding the window removal process could never be the sole proximate cause of his injuries. At most, constituted comparative negligence, which is not a defense under § 240(1).
 New York Industrial Code Regulations (EDA)
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Regulation § 23–1.25(a)(3)(i), Welding and flame cutting operations.
(3) Compressed gas cylinders.
Use.
(ii) Compressed gas cylinders shall not be dropped or thrown from any height.
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Regulation § 23–1.25(a)(3)(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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