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Arch Specialty Ins. Co. v HDI Gerling Am. Ins. Co.
August 22, 2024
Appellate Division, First Department
Ralph Caracciolo while employed by TKE and working at the premises, fell from a platform in an elevator shaft as he exited the platform. Caracciolo sued SHS and Wilcox seeking damages for the injuries he sustained in the accident. At the time of the accident, SHS owned the premises and was constructing a self-storage facility. There was a dispute between SHS and Wilcox about whether the work contract was drafted long after the Accident occurred, and/or is valid. Accordingly, SHS and Wilcox dispute whether Wilcox had any obligation to indemnify SHS and/or provide insurance coverage to SHS for the Project. There was no disputing that SHS executed a contract with TKE with respect to the project, and that the contract required TKE to purchase insurance naming both Wilcox and SHS as additional insureds.
The trial court granted Arch's motion to reargue and, upon reargument, granted Arch's motion for summary judgment to the extent that it adjudged and declared that an HDI Gerling American policy issued to TKE affords additional-insured coverage to nonparty premises owner SHS-LLC on a primary and noncontributory basis, with the scope of the additional-insured coverage to be determined based upon the underlying action, and adjudged and declared that HDI is required to defend SHS in the underlying action.
 Indemnity Issues in Labor Law (AMC)
The Appellate Division upheld the lower Court’s rulings that HDI must provide SHS-LLC with a defense due to the agreement between SHS-LLC and TKE and the allegations in the complaint and related third-party action. It further held that while an additional insured may ultimately be found liable for its own independent negligent acts not covered under an additional insured provision, it does not negate an insurer’s duty to defend.
Chiarella v New York State Thruway Auth.
August 7, 2024
Appellate Division, Second Department
Claimant was working on the construction of a bridge, which was owned by defendant New York State Thruway Authority. On the day of his accident, the claimant was descending from an upper walkway to a lower walkway on the worksite, using a wooden pallet that was installed between the two levels by another worker. As he stepped on the wooden pallet, he reached for a handrail on his left-hand side, and the handrail swung one foot away from him, causing him to lose his balance. At the same time, the wooden pallet shifted and fell, causing him to fall onto the lower walkway.
The Court of Claims denied claimant's motion for summary judgment on the Labor Law § 240(1) claim and part of the Labor Law § 241(6) claim alleging a violation of 12 NYCRR §§ 23-1.7(f) and 23-1.15(a) and granted defendant's cross-motion for summary judgment dismissing the § 241(6) claim as predicated on violations of §§ 23-1.21 and 23-2.7.
 Labor Law § 240(1) (MAS)
The First Department reversed the trial court’s decision and granted summary judgment to claimant, finding that his deposition testimony, affidavit, and employee statement, all of which demonstrated that defendant’s failure to provide claimant with a ladder to traverse the vertical distance between walkway platforms was a proximate cause of the accident. In opposition, the Court rejected defendant’s sole proximate cause argument and held that defendant failed to raise a triable issue of fact as to whether a proper ladder was readily available to claimant or whether he had been instructed to use a ladder rather than the wooden pallet installed between the walkway levels.
PRACTICE POINT: Here, and contrary to defendant’s contention, plaintiff established that his injuries were proximately caused by defendant’s failure to satisfy their nondelegable duty under Labor Law 240(1) to provide him with a safe and adequate ladder necessary for him to perform to his elevation-related work.
 Labor Law § 241(6) (TPW)
The First Department modified the trial court’s decision as it pertained to the Labor Law § 241(6) claim. First, the Court of Claims should have granted that branch of claimant's motion predicated on violations of 12 NYCRR 23-1.7(f) and 23-1.15(a). The Court found that claimant demonstrated that defendant violated 12 NYCRR 23-1.7(f) by failing to provide “ladders or other safe means of access” from walkway levels on the work site and that this violation was a proximate cause of the accident. The Court also held that claimant demonstrated that defendant violated 12 NYCRR 23-1.15(a) by failing to provide a safety railing that was “securely supported.” Claimant's deposition testimony established that the unstable handrail was a proximate cause of the accident.
However, the Court of Claims properly granted that branch of defendant's cross-motion dismissing the claim alleging a violation of 12 NYCRR 23-1.21 and 23-2.7 as defendant established that these Industrial Code provisions were inapplicable to the facts of this case because claimant was not using a ladder or a stairway at the time of the accident.
Titov v V&M Chelsea Prop., LLC
August 14, 2024
Appellate Division, Second Department
Plaintiff was injured while working at a construction site as an employee of NYCHVAC, a plumbing and air conditioning subcontractor. Plaintiff alleged that, while he was descending a temporary staircase from the top floor to the floor below, he allegedly slipped on construction debris or dust. Fulton was the general contractor at the worksite. PMB was a carpentry subcontractor.
The trial court granted Fulton's motion for summary judgment dismissing the Labor Law § 241(6) claim but denied Fulton’s motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims against it. The trial court also granted the motion of PMB for summary judgment dismissing the crossclaims of Fulton against it and granted the motion of NYC HVAC for summary judgment dismissing the third-party complaint against it.
Labor Law § 241(6) (TPW)
The Second Department held that the trial court properly granted that branch of Fulton’s motion which was for summary judgment dismissing the Labor Law § 241(6) claim. Fulton established that 12 NYCRR 23-1.7(e)(1), which protects workers from tripping hazards, was inapplicable to the facts of this case, since the accident was the result of a slipping hazard, and not a tripping hazard. Fulton also established that 12 NYCRR 23-1.7(e)(2) was inapplicable to the facts because it applies to working areas, and the staircase in which the accident allegedly occurred was a “passageway,” not a working area, at the time of the accident. Moreover, Fulton established that 12 NYCRR 23-1.7(f), which provides that “[s]tairways, ramps or runways shall be provided as the means of access to working levels above or below ground,” was not violated. In opposition, the Court held that plaintiff failed to raise a triable issue of fact.
 Labor Law § 200 and Common-Law Negligence (EDA)
The Second Department affirmed the trial court’s finding that Fulton failed to establish that it did not have constructive notice of the condition. At his deposition, plaintiff testified that he observed a white substance on his pants after falling. He believed the substance was dust, construction debris, or sand. The record further establishes that Fulton, among others, was responsible for cleaning the subject stairs. However, Fulton did not present any evidence as to when the stairs were last cleaned or inspected prior to plaintiff's accident. Accordingly, the Court held that Fulton failed to meet its burden of establishing that it neither created nor had notice of the dangerous condition.
Indemnity Issues in Labor Law (AMC)
The Appellate Division held that the lower Court properly granted NYCHVAC’s motion seeking to dismiss the third-party complaint. The indemnification provision in the subcontractor agreement between Fulton and NYCHVAC provides that NYCHVAC would hold Fulton harmless for its own wrongdoing in violation of GOL 5-322.1 and is unenforceable.
The Appellate Division held that the lower Court erred in granting PMB’s motion for summary judgment dismissing Fulton’s cross-claim for common-law indemnification. In order for a party to establish a claim for common-law indemnification, it must prove that it was not negligent for the accident, but also that the proposed indemnitor’s actual negligence contributed to the accident. The Appellate Division found that PMB failed to eliminate all triable issues of fact as to whether the accident was solely due to its negligence.
Punina v Canaday
August 21, 2024
Appellate Division, Second Department
Plaintiff was injured when he fell from a 16-foot ladder situated on top of a scaffold, both of which were provided by his employer and set up at his employer's direction. The trial court granted defendants' motion for summary judgment dismissing the complaint and denied, as academic, plaintiff's cross-motion to compel certain discovery.
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s decision to dismiss the claims under Labor Law §§ 240(1) and 241(6) as it is undisputed the property was a single-family dwelling owned and occupied by the Canadays. Therefore, the Canadays established their entitled to the protection of the homeowners’ exemption. Additionally, De Looz established that he did not direct or control plaintiff’s work and that he was not a general contractor or an agent of the owner or general contractor with regard to plaintiff’s injury-producing work. In opposition, the Court held that plaintiff failed to raise a triable issue of fact.
PRACTICE POINT: Labor Law §§ 240(1) and 241(6) specifically exempt from liability “owners of one and two-family dwellings who contract for but do not direct or control the work.” The phrase direct or control as used in those statutes is construed strictly and refers to the situation where the owner supervises the method and manner of the work. Here, it is undisputed that the property was a single-family dwelling owned and occupied by the Canadays; therefore, they were entitled to the protections of the homeowners’ exemption.
Labor Law § 200 and Common-Law Negligence (EDA)
The Second Department affirmed the trial court’s finding that defendants established their entitlement to judgment as a matter of law dismissing the Labor Law § 200 and common-law negligence claims by demonstrating that plaintiff's employer was solely responsible for supervising plaintiff's injury-producing work and providing plaintiff with equipment. In opposition, the Court held that plaintiff failed to raise a triable issue of fact.
Miranda v 1320 Entertainment, Inc.
August 28, 2024
Appellate Division, Second Department
Plaintiff was injured in November 2019 during her employment with Tobin. At the time of the incident, plaintiff was working on a machine called an edge bander, which applies wood edges, mica edges, or PVC edges on the sides of cabinets, when she was struck by a piece of lumber that flew off a table saw operated by a coworker. The trial court denied defendant’s motion for summary judgment seeking dismissal of the complaint.
Labor Law § 240(1) (MAS)
The Second Department reversed the trial court and granted defendant’s motion for summary judgment dismissing the complaint. The Court found that plaintiff’s unpleaded causes of action under Labor Law §§ 240(1) and 241(6) are not supported by plaintiff’s submissions, as the record demonstrates that plaintiff’s work at the time of her injury did not involve “construction, excavation or demolition work” within the meaning of Labor Law 241(6), or “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” within the meaning of Labor Law 240(1).
PRACTICE POINT: Modern practice permits a plaintiff, in some circumstances, to successfully oppose a motion for summary judgment by relying on an unpleaded claim that is supported by plaintiff’s submissions, where plaintiff has not engaged in unexcused protracted delay in presenting the new theory of liability. In this case, plaintiff could not do so.
Labor Law § 200 and Common-Law Negligence (EDA)
The Second Department affirmed the trial court’s finding that the defendant was an out-of-possession landlord that had relinquished control of the property to Tobin and had not assumed a duty to maintain the property in a reasonably safe condition by a course of conduct (see Skjoldal v Pacific W. Constr. Corp., 222 AD3d 1021, 1023; Hope v Our Holy Redeemer R.C. Church, 219 AD3d 595, 595). Although defendant reserved a right of entry under the lease, this did not provide a sufficient basis on which to impose liability upon defendant for injuries caused by a dangerous condition, as the condition did not violate a specific statute, nor was it a significant structural or design defect. In opposition, the Court held that plaintiff failed to raise a triable issue of fact
Ramirez v Pace Univ.
August 28, 2024
Appellate Division, Second Department
Plaintiff was working for a nonparty entity on a construction project at Pace, when he allegedly fell from a scaffold and was injured. Pace had contracted with NYCAN to manage the project. 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 to grant plaintiff’s motion for summary judgment. Plaintiff established that he was exposed to an elevation-related hazard within the ambit of the statute and that the unsecured scaffold platform was a proximate cause of his injuries. In opposition, the Court held that defendants failed to demonstrate that plaintiff’s motion was premature as defendants’ contention that depositions of more witnesses might lead to relevant information was speculative. The Court further noted that the record established that defendants had a reasonable opportunity to pursue the additional discovery and that they did not demonstrate that they were diligent in doing so.
The Court also held that defendants failed to raise a triable issue of fact as to whether plaintiff was the sole proximate cause of the accident as any potential comparative negligence arising from plaintiff working after the closing time of the work site would not be a defense to the statutory violation.
Contrary to NYCAN’s contention, the Court additionally found it liable as a statutory agent because it had “the ability to control the activity which brought about the injury.”
PRACTICE POINT: To establish liability under Labor Law § 240(1), a plaintiff “must demonstrate a violation of the statute and that such violation was a proximate cause of his or her injuries.” The collapse of a scaffold or ladder for no apparent reason while a plaintiff is engaged in an activity enumerated under the statute creates a presumption that the ladder or scaffold did not afford proper protection. In this case, plaintiff established that he was exposed to an elevation-related hazard within the ambit of the statute and that the unsecured platform was a proximate cause of his injuries.
New York Industrial Code Regulations (EDA)
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Note from David R. Adams:
