Labor Law Pointers - Volume XIII, No. 11

 

Volume XIII, No. 11
Wednesday, October 2, 2024

 

 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.

We have exciting news this month here at the Hurwitz Fine Labor Law team. Marc Schulz has been named as the co-chair of the team. Marc has been my right-hand man for over 10 years and as of this month, he will be taking over some of the administrative duties of running our team. 
 
Marc will also be taking over writing the cover note for Labor Law Pointers every other month as a way of introducing him to our subscribers. Marc has been writing the § 240(1) column for several years and will continue to do so and I will help with some case analysis on months where Marc is doing the cover note. 
 
For those of you who do not know Marc, please feel free to reach out to him and get to know him. He is not only a very good attorney and a nice person, he is also a self-proclaimed expert at fantasy football. He kicks my butt every year. The Labor Law team started with just the two of us, and it is only fitting that Marc moves into a leadership position. 
 
Our team, as you are aware, consists of five attorneys in our Buffalo office: Myself, Marc Schulz, Eric Andrew, Todd Bushway, and a new team member Tyler EckertTimothy Welch in Rochester; and Brian Mark, Patrice Melville and Ashley Cuneo in our Melville office. Our team covers the state handling Labor Law and Risk Transfer cases.
 
In other news, Hurwitz Fine P.C. is proud to announce that we have earned Midsize Mansfield Certification “Plus” status for the year 2023 – 2024. This 12-month certification, in partnership with Diversity Lab, tracks and measures our commitment to achieving greater diversity in leadership roles. This marks the second time Hurwitz Fine has received this prestigious national recognition, reflecting our ongoing dedication to fostering an inclusive workplace and promoting equity within the legal profession.
 
Enough with the firm news, and on to the reason you subscribe, our videos.  In this video, we have an office building where a window has been leaking.  The building owner hired a company to seal the edges of the window to stop the leaking.  An employee was sent out to do the job but when he got there, he realized that his ladder was not long enough to reach the window.  He took it upon himself to devise a “safety device” which would protect him from falling.  As he worked, he had a funny thought and as he was caulking the top of the window, he took the caulking gun and made the required "Pew-Pew" noise as he pointed it at his co-worker.  Unfortunately, this caused the co-worker to let go of the rope holding the worker in place and he fell. Does this qualify as a § 240(1) case?



The plaintiff has a prima facie case for § 240(1). He is a person so employed and thus a valid plaintiff. The building owner is an owner of commercial real estate and thus an appropriate defendant. The task is a repair and thus protection is afforded under § 240(1) and the injury was caused by an elevation differential and the force of gravity, thus a prima facie case for plaintiff. The defendant will argue that the injury was caused not by the plaintiff working, but by the plaintiff screwing around. That will not work here; it is so obvious that the plaintiff was not provided an appropriate safety device that this will result in summary judgment for the plaintiff.
 
I will now turn this edition to Marc to add his comments.  I just want to say that this newsletter that I started one month shy of 13 years ago is something that we take great pride in.  We try to keep it concise and meaningful, while passing along our analysis of the state of the Labor Law along to all of you in an interesting way and providing information that makes your jobs easier.  We have always aimed to be a resource to everyone defending these cases and will continue in that vein. Please, as always feel free to reach out to any of us, we are here to help.
 
 

I would first like to express my gratitude to Dave for sticking it out with me as I will never forget how challenging those early years were as I learned the complex nuisances of the Labor Law. Thank you for teaching me how to try a case and how to be litigator with a young family. For those unfamiliar with my fantasy football skills, my motto is “winners win.” My approach to fantasy football is like my Labor Law practice in that I use the same general information/rules as the general population (“gen pop”) but I analyze that same information differently than gen pop and strategically make moves to achieve the desired results. It is fun when most of your work fantasy football league calls you “lucky” each year for five straight years with four championship game appearances.
 
It is also rewarding when colleagues, industry professionals and adversaries reach out to discuss various Labor Law issues with their cases and realize, much like Dave, my brain processes information differently. My goal here is to share my thought process with you to improve your ability to handle Labor Law §§ 240(1), 241(6), 200, common-law negligence, contractual indemnification, common-law indemnification and breach of contract claims. Feel free to contact me with any questions you may have; otherwise, Happy Halloween!
 
-Marc
 
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. Hope you learned something.

-David

 
Hurwitz Fine P.C.
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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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Oliveira v Top Shelf Elec. Corp.
September 24, 2024
Appellate Division, First Department

Plaintiff slipped on debris in a dark interior stairway without exterior windows, in which the temporary lights were off, and he was injured. The trial court granted plaintiff's motion for partial summary judgment on the Labor Law § 241(6) claim predicated on violations of Industrial Code (12 NYCRR) §§ 23-1.7(d) and 23-1.30.

 

  Labor Law § 241(6) (TPW) 

The First Department affirmed the trial court's decision to grant plaintiff partial summary judgment under Labor Law § 241(6). Plaintiff met his burden of establishing liability based on the violations of Industrial Code §§ 23-1.7(d) and 23-1.30, by submitting his testimony that he slipped on debris in a dark interior stairway without exterior windows, in which the temporary lights were off. The Court held the testimony of defendants' witnesses regarding the adequacy of the lighting failed to raise issues of fact.  Further, the Court reaffirmed that any comparative negligence would not preclude partial summary judgment in favor of plaintiff under Labor Law § 241 (6). 


Smith v Extell W. 45th LLC
September 26, 2024
Appellate Division, First Department
 

Plaintiff was employed as a carpenter who was working on a construction project.  He was riding an elevator when it suddenly stopped, shook and “abruptly descended approximately 15 floors.” He also testified that [w]hen the car suddenly jerked to a stop, it caused my right foot to move/jump. When my right foot landed it landed on debris which caused me to twist to my right. I immediately experienced low back pain." 
 
The trial court granted the motion of Extell West 45th LLC, Extell Development Company, HHC TS Reit, LLC, Hyatt Corporation, Hyatt Hotels Corporation, Lend Lease (US) Construction LMB, Inc., KONE, Inc., and Bovis Lend Lease LMB, Inc. (collectively “defendants”) for summary judgment dismissing plaintiff's Labor Law § 241(6) claim predicated on Industrial Code § 23-7.3 and denied the motion insofar as predicated on an alleged violation of Industrial Code § 23-1.7(e).

 

  Labor Law § 241(6) (TPW) 

The First Department affirmed that portion of the trial court’s decision dismissing the Labor Law § 241 (6) claim insofar as it was predicated on 12 NYCRR § 23-7.3 (e), which requires that elevator cars being installed in buildings or other structures for permanent use being used before completion of the building or structure "shall be operated only by competent, trained, designated persons." That regulation is not sufficiently specific to support a Labor Law § 241 (6) claim.
 
However, the Court held that the trial court should have granted defendants' motion for summary judgment dismissing plaintiff's claim insofar as it was predicated on 12 NYCRR § 23-1.7 (e) (1). That regulation provides 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." A passageway for purposes of this regulation “mean[s] a defined walkway or pathway used to traverse between discrete areas as opposed to an open area.” The elevator in which plaintiff's accident occurred should not have been considered a walkway or pathway; therefore, it cannot constitute a passageway within the meaning of the regulation.
 
Further, the Court found that the trial court properly denied defendants' summary judgment dismissing the claim insofar as it was predicated on 12 NYCRR § 23-1.7 (e) (2). That regulation states “[t]he parts of floors, platforms and similar areas where persons work, or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed." This regulation is sufficiently specific to support a Labor Law § 241(6) claim, and the floor of the elevator in which plaintiff testified that his accident occurred was a floor or similar area where persons passed within the meaning of the regulation and that defendants failed to raise a question of fact. 

  
Mosquera v TF Cornerstone Inc.
September 26, 2024
Appellate Division, First Department
 

Plaintiff fell off the edge of a bathtub he was standing upon to paint the room's upper corners because the ladders provided to him did not fit inside the tub when open.  The trial court denied defendants' motion for summary judgment dismissing plaintiff's Labor Law § 240(1) claim and granted plaintiff's motion for partial summary judgment on that claim. 

 

 Labor Law § 240(1) (MAS) 

The First Department unanimously affirmed the trial court’s decision. Defendants’ expert who examined the scene four years’ post-accident did not create a question of fact because he conceded that he could state the ladder he examined was the one plaintiff fell from. He also admitted the ladder was four feet in height, not six and eight as testified to by plaintiff, explaining that an unidentified individual informed him that plaintiff was incorrect. Therefore, the Court held that the expert’s conclusion that plaintiff was the sole proximate cause of his accident because he could have used one of the ladders provided was unsupported by the record.
 
PRACTICE POINT: Remember the four essential elements of the sole proximate cause defense: (1) plaintiff had adequate safety devices; (2) plaintiff knew both that the safety devices were available and that he or she was expected to use them; (3) plaintiff chose, for no good reason, not to do so; and (4) would not have been injured had he or she not made that choice. Without all four elements, this defense will not succeed. If you submit an expert affidavit in support of a summary judgment motion and argue plaintiff used the wrong ladder, it helps if the expert inspects the subject ladder or else the court will find it is purely speculative.

 
Acevedo-Espinosa v RH 250 Sherman Ave., LLC
September 11, 2024
Appellate Division, Second Department
 

Plaintiff allegedly was injured when he fell from a ladder while installing cable services for a tenant at a property owned by BSF and managed by Barberry Rose Management Company and maintained by ARM (collectively “defendants”). The trial court granted defendants' motion for summary judgment dismissing the Labor Law § 240(1) claim and denied plaintiff's cross-motion for summary judgment on the same claim.

 

 Labor Law § 240(1) (MAS) 

The Second Department affirmed the trial court’s decision. Contrary to plaintiff’s contention, defendant established their entitlement to judgment as a matter of law dismissing the Labor Law § 240(1) claim. Defendants’ submissions demonstrated that the requisite nexus between defendants and plaintiff’s work did not exist, and in opposition, the Court held that plaintiff failed to raise a triable issue of fact. For the same reasons, the Court affirmed the trial court’s decision that plaintiff failed to establish his entitlement to summary judgment on his cross-motion on the issue of defendants’ liability under § 240(1).
 
PRACTICE POINT: Case law says that where the owner is unaware a tenant hires a cable technician to perform work on the property, that owner is not an appropriate Labor Law § 240(1) defendant so long as that owner did not consent to the service installation, as any permission to work at the property “was granted upon compulsion” of Public Service Law § 228 (see Abbatiello v Lancaster Studio Assoc., 3 NY3d 46 [2004]).

 
Benegas v Ardsley Country Club, Inc.
September 11, 2024
Appellate Division, Second Department
 

Plaintiff alleged that the top of his left ring finger was severed while he was working for the third-party defendant Matthew General Construction, who was hired by Murphy Brothers, the general contractor, to install a new roof at a clubhouse owned by Ardsley.  The trial court granted defendants' unopposed motion for summary judgment dismissing the Labor Law § 241(6) claim. Plaintiff did not timely oppose defendants' motion. Thereafter, plaintiff moved under CPLR § 5015 to vacate the order and pursuant to CPLR § 3025 for leave to amend the bill of particulars to allege a violation of Industrial Code § 23-6.1(e) with regard to the alleged violation of Labor Law § 241(6). In a subsequent order, the trial court denied plaintiff's motion.
 
  Labor Law § 241(6) (TPW) 

As plaintiff was precluded from alleging a violation of 12 NYCRR 23-6.1(e), the Second Department offered no comment on the Industrial Code section.

 
Injai v Circle F 2243 Jackson (DE), LLC
September 11, 2024
Appellate Division, Second Department
 

Plaintiff allegedly was injured when he fell from a ladder while performing work at a construction site. The construction site was located on property owned by Circle F, who hired Wang to act as the general contractor on the construction project. Plaintiff, a carpenter, asserted that, at the time of the accident, he was moving forms for pouring concrete from one floor to another by carrying them up a wooden ladder that had been built at the construction site and passing them to a worker above. According to plaintiff, the accident occurred when he was ascending the ladder with a form and the ladder wobbled or moved, causing him to lose his balance and fall to the ground below.
 
The trial court denied plaintiff's motion for summary judgment on the Labor Law § 240(1) claim and the Labor Law § 241(6) claim predicated on an alleged violation of 12 NYCRR 23-1.21(b)(4)(ii) as against Circle F and Wang.

 

 Labor Law § 240(1) (MAS)

The Second Department affirmed the trial court’s decision as plaintiff’s evidentiary submissions in support of his motion, as well as the evidence submitted in opposition to the motion, raised triable issues of fact regarding how the accident occurred, whether the accident could have occurred in the manner plaintiff described, and whether the ladder was secured. Therefore, the trial court properly denied that branch of plaintiff’s motion for summary judgment under § 240(1).
 
PRACTICE POINT: Where, as here, a plaintiff is the sole witness to the accident and his or her credibility has been placed in issue, the granting of summary judgment on the issue of liability in favor of plaintiff on a Labor Law § 240(1) claim is inappropriate.

 

  Labor Law § 241(6) (TPW) 

As with the above Labor Law § 240(1) claim, the Second Department affirmed that plaintiff's motion on the Labor Law § 241(6) claim failed to eliminate triable issues of fact as to whether 12 NYCRR § 23-1.21(b)(4)(ii) was violated or whether such violation was a proximate cause of plaintiff's injuries. Accordingly, the trial court properly denied that branch of plaintiff's motion insofar as asserted against Circle F and Zhong Wang.

  
Sarceno v Manhattan View LLC
September 11, 2024
Appellate Division, Second Department
 

Plaintiff sued MiMA for violations of Labor Law §§ 240, 241, 200 and common-law negligence and for injuries he sustained while performing demolition work. Prior to the completion of discovery, MiMA moved for summary judgment dismissing the complaint insofar as asserted against it. Plaintiff opposed the motion on the ground that summary judgment was premature and cross-moved for leave to amend the complaint to add The Related Companies, L.P. (hereinafter “The Related Companies”), and 42nd and 10th Associates, the alleged landlord of the subject property, as defendants. The trial court denied MiMA’s motion for summary judgment dismissing the complaint against it, without prejudice to renew upon the completion of discovery, and granted plaintiff's cross-motion for leave to amend the complaint.

 

 Labor Law § 240(1) (MAS)

The Second Department affirmed the trial court’s decision because plaintiff demonstrated that discovery might lead to relevant evidence that would justify opposition to that branch of MiMA’s motion for summary judgment dismissing the complaint insofar as asserted against it.
 
With respect to plaintiff relation-back argument, the Court noted that MiMA does not dispute that the first and third prongs of the relation-back doctrine were established. The Court also held that plaintiff established the second prong of the relation-back doctrine, i.e., that MiMA is united in interest with The Related Companies and 42nd and 10th Associates. Plaintiff’s submissions sufficiently demonstrated that, under the circumstances of this case, MiMA, The Related Companies, and 42nd and 10th Associates “intentionally or not, often blurred the distinction between them.” Accordingly, the trial court properly granted plaintiff’s cross-motion for leave to amend the complaint to add The Related Companies and 42nd and 10th Associates as defendants.
 
PRACTICE POINT: A party who contends that a summary judgment motion is premature is required to demonstrate that discovery might lead to relevant evidence or the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the moving party. Here, plaintiff met that burden. Reach out separately to me if you are interested in discussing the relation-back doctrine as it relates to this case.


Argueta v Hall & Wright, LLC
September 11, 2024
Appellate Division, Second Department


Plaintiff, then employed as a carpenter for MCJM, was allegedly injured while working on a home’s sloped roof and installing a bracket on its ridge to create a tie-off point for roofers. While performing this work, he lost his balance, slid down the side of the roof, and fell to the ground in front of the home. Defendant 520X owned the property and hired MCJM to serve as the project’s general contractor, who hired H & W as the construction manager. The trial court granted the separate motions of H & W and 520X for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims.

 

 Labor Law § 240(1) (MAS) 

The Second Department affirmed the trial court’s decision as H & W’s evidence showed that it only had general supervisory authority to oversee the progress of the work, not authority to exercise supervision and control over the work that brought about plaintiff’s injury. 520X’s evidence also demonstrated that it did not direct or control the method and manner of the work performed during the renovation project and that the subject home was a single-family residence. In opposition, the Court held that plaintiff failed to raise a triable issue of fact.
 
PRACTICE POINT: Although a construction manager is generally not considered a contractor responsible for the safety of the workers at a construction site under Labor Law 240(1) and 241(6), it may become responsible if it has been delegated the authority and duties of a general contractor, or if it functions as an agent of the owner of the premises. A party is deemed to be an agent of an owner or general contractor when it has supervisory control and authority over the work being done where a plaintiff is injured. An agent’s liability is limited to those areas and activities within the scope of the work delegated or, in other words, to the particular agency created. To impose statutory agent liability pursuant to the Labor Law, defendant must have the authority to control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition. The determinative factor is whether defendant had the right to exercise control over the work, not whether it actually exercised that right. Here, H & W showed it only had general supervisory authority to oversee the progress of the work, not authority to exercise supervision and control over the work that brought about plaintiff’s injury.
 
  Labor Law § 241(6) (TPW) 

The Second Department affirmed the dismissal of the Labor Law § 241(6) cause of action bought by separate motions of the defendants Hall and Wright, LLC, and 520X Residential, LLC.  As with Labor Law § 240(1) cause of action, a Construction Manager is generally not considered a contractor responsible for the safety of the workers at a construction site unless it has been delegated the authority and duties of a general contractor.  Per the proffered testimony, the scope of work of Hall and Wright, LLC was limited to coordinating and monitoring the progress of the project. Hall and Wright, LLC did not direct any of the project's workers as to the means and methods of their work. In opposition, the plaintiff failed to raise a triable issue of fact.  As such, was not a proper Labor Law defendant.  Likewise, 520X demonstrated that it did not direct or control the method and manner of the work performed during the renovation project and that the subject home was a single-family residence outside the scope of the Labor Law due to the homeowner's exemption.

  
Chavarria v Bruce Nagel & Partners Architects, P.C.
September 11, 2024
Appellate Division, Second Department
 

KDMAX executed a contract with the Wassermans to act as the general contractor for the Wassermans' home renovation project. The Wassermans also entered into a contract with Nagel to provide architectural services in connection with the project. The Nagel contract included an option for Nagel to provide construction administration services on either a regular or ad hoc basis. If the Wassermans exercised that option, the Nagel contract required the Wassermans to have their general contractor “include [Nagel, P.C.,] in its General Liability policy."
 
On August 26, 2019, the Wassermans and Nagel, P.C., executed an addendum to the Nagel contract providing that Nagel was to “stop all regular Construction Administration services and from this date forward any Construction Administration services will be provided as [an] Additional Service only as and when requested by” the Wassermans. After executing the addendum, the Wassermans did not request that Nagel undertake any further construction administration services, and the Wassermans did not require KDMAX to include Nagel as an additional insured on KDMAX's general liability insurance policy.
 
In January 2020, plaintiff, an employee of KDMAX, was working on the project when he fell off a mechanical lift. Plaintiff thereafter sued to recover damages for personal injuries against Nagel and the Wassermans, alleging violations of Labor Law §§ 240(1), 241(6), 200 and common-law negligence. In its answer, Nagel asserted four crossclaims against the Wassermans, including breach of contract for the Wassermans' alleged failure to require KDMAX to include Nagel as an additional insured on KDMAX’s general liability insurance policy.

 

 Indemnity Issues in Labor Law (PCSM)

The Second Department reversed the trial court’s decision and found Nagel was entitled to judgment as a matter of law on its crossclaim alleging breach of contract, and that the Wassermans were not entitled to summary judgment dismissing that crossclaim. Upon review of the Nagel contract, the Court determined that the Nagel contract and the addendum did not establish that the Wassermans had revoked their election of the option for Nagel to provide construction administration services. According to the Court, to do otherwise would impermissibly add or remove terms from the Nagel contract or distort the meaning of the words that were used. The Court ultimately found that the unambiguous language of the Nagel contract and the addendum revealed that the Wassermans merely elected to reduce the frequency of the construction administration services of Nagel and that the Wassermans retained the right to direct Nagel to provide such services at their discretion on an ad hoc basis.
 

Ballard v 300 E. Blvd. Canandaigua LLC
September 27, 2024
Appellate Division, Fourth Department
 

Plaintiff fell to the ground while working on the roof of a building being constructed on defendant's property. Plaintiff and his coworkers were installing plywood sheets to form the base layer of the roof when plaintiff stepped on an unsecured plywood sheet, causing him to fall into the hole created by the shifting plywood. At the time of the accident, plaintiff was not wearing a harness or any other similar type of safety device. The trial court denied plaintiffs’ motion for partial summary judgment.
 
 Labor Law § 240(1) (MAS)

The Fourth Department unanimously affirmed the trial court’s decision and rejected plaintiffs’ contention because defendant raised a triable issue of fact whether plaintiff's own negligence was the sole proximate cause of his injuries due to his choice not “to use available, safe and appropriate equipment” - i.e., a harness – at the time of the accident. Specifically, defendant submitted deposition testimony from the owner of plaintiff’s employer, who testified that he had seen plaintiff wearing a harness while working on the roof the day before the accident and that he had previously told plaintiff to wear a harness while working at that height. The owner testified that the harnesses were “definitely” present at the worksite on the day of the accident because they had been present the day before. Indeed, it is undisputed that equipment brought to the worksite at the beginning of the work week would remain there the entire week. The owner also testified that the absence of a harness caused the accident based on his observation of tie-off equipment located on the roof of the building that would have stopped plaintiff from falling had he been wearing a harness attached to such a device.
 
PRACTICE POINT: There are issues of fact whether plaintiff was the sole proximate cause of the accident because the owner’s testimony, which was based on his personal observations of the worksite the day before the accident, suggested that plaintiff chose not use a harness for no good reason, despite knowing that the harnesses were available at the worksite and that he was expected to use one, and that plaintiff’s choice not to use a harness caused him to fall.
 
  Labor Law § 241(6) (TPW)

The Fourth Department affirmed the trial court’s determination with respect to the Labor Law § 241(6) claim inasmuch as there are triable issues of fact with respect to whether plaintiff was the sole proximate cause of the accident.

 

 New York Industrial Code Regulations (EDA)

Regulation § 23–1.25(d), Protection of persons.
All persons engaged in welding or flame-cutting operations shall be provided where necessary with proper scaffolds installed and used in compliance with this Part (rule). Such persons shall be provided with approved eye protection suitable for the work involved and appropriate protective apparel. When arc welding is performed near other persons, such other persons shall be protected from the arc rays by opaque screens or by approved eye protection.

Regulation § 23–1.25(d) is sufficiently specific to support a Labor Law § 241(6) cause of action to the extent it requires that all persons engaged in welding and flame-cutting be provided with appropriate protective apparel, since the appropriateness of protective apparel may be determined with reference to task involved; and applicable to the extent it requires approved eye protection suitable for the work involved where plaintiff was not provided with face shield (Brady v New York, 52 AD3d 331, 859 NYS2d 193 [1st Dept. 2008]).

Regulation § 23–1.25(d) held not sufficiently specific to support a § 241(6) claim to the extent it requires that all persons engaged in welding and flame-cutting be provided with proper scaffolds were necessary (Ross v Curtis-Palmer Hydro-Elec. Co., supra); not sufficiently specific to the extent it requires that all persons engaged in welding and flame-cutting be provided with appropriate protective apparel (Winkelman v Alcan Aluminum Corp., 256 AD2d 1126, 685 NYS2d 167 [4th Dept. 1998]);

Regulation § 23–1.25(d) inapplicable to welder's work in replacing wooden staircase with iron one (Contrera v Gesher Realty Corp., supra).

 

 

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