Labor Law Pointers - Volume XIII, No. 12

 

Volume XIII, No. 12
Wednesday, November 6, 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.

One of the joys of this newsletter is the ability to write on cases we argue. This month, I get to write about a case I argued and lost. When you read the Ells case below let me know your thoughts; I would be interested in knowing if you think I was way off base in my argument. Marc, I should point out, was not surprised we lost.
 
In our first photo of the month, we have a plaintiff who works for a company hired to put up marketing pictures on a wall in an office building. The materials he was given included an A-frame ladder without side bars able to lock the ladder open and a strong co-worker to help. When he arrived, he learned that the pictures were to be put on a wall over the stairs. He complained to his boss that he did not have the proper equipment and that his training was very specific that he should not attempt to put up the marketing photos with the equipment he was provided with. Plaintiff was told by his boss to get the job done or to look for another job. Below is how he chose to do the job. When he fell off the ladder, does he have a § 240(1) case?



Well the plaintiff is a person so employed and thus an appropriate plaintiff. The property owner of a commercial building is an appropriate defendant. The plaintiff was injured as a result of a height differential and the effects of gravity, and while the plaintiff knew he was not supposed to work off the ladder in that position, the fact that his boss told him to get the job done provides tacit approval of the method and thus eliminated the Sole Proximate Cause defense. That said, § 240(1) does not apply as the plaintiff was not engaged in an enumerated and protected activity. Hanging a picture is not protected. Summary judgment for the defendant property owner.
 
Next, we have a plaintiff who is hanging a sign on a building to identify a new business that just opened in the building. He works for the sign store just next door and his boss sent him over to hang the new sign.  There was no paperwork when the sign was ordered; they knew each other and the sign company owner was glad his friend was opening his business next door. In fact, he was so happy that he offered to make the sign and have it installed for nothing. When the sign was done, he sent his installer to attach it to the building. The installer just drove the fork truck over to the building next door and had one of his co-workers lift him up so he could install the sign. As he drilled a hole to install the sign, the drill jerked, threw off his balance and he fell off the chair on the pallet on the forks and broke his arms when he landed. § 240(1) case?



This is a case where the defense attorney was convinced that the plaintiff did not have standing. He opined that to qualify as a plaintiff in a § 240(1) case the plaintiff must not be a volunteer and the sign company owner volunteered to create and install the sign for nothing, thus it was voluntary. That, unfortunately, is not how the law works. The plaintiff was a person so employed and thus, as he was working for the sign company, he was not a volunteer, but a person so employed. Summary judgment for the plaintiff.
  
As always, we remind you all that we are available for a refresher or more advanced session on Labor Law and the ability to transfer risk, should anyone need some training--just let us know. We are available in person or via online seminar.
 
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
-Marc 

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.

Don’t forget to subscribe to our other publications:

 

Coverage Pointers: This twice-monthly electronic newsletter summarizes important insurance law decisions from appellate courts in New York State with the occasional snapshot across borders. Coverage Pointers, the electronic newsletter that started it all, continues to offer guaranteed publication every other Friday, and a read-at-a-glance summary of important decisions as they happen. Contact Dan Kohane at [email protected]  to subscribe.

Medical & Nursing Home Liability Pointers:  Medical & Nursing Home Liability Pointers provides the latest news, developments, and analysis of recent court decisions impacting the medical and long-term care communities. Contact Liz Midgley at [email protected] to subscribe.
 

Premises Pointers This monthly electronic newsletter covers current cases, trends and developments involving premises liability and general litigation. Contact Jody Briandi at [email protected] to subscribe.


Products Liability Pointers:   This monthly newsletter covers all areas of products liability litigation, including negligence, strict products liability, breach of warranty claims, medical device litigation, toxic and mass torts, regulatory framework and governmental agencies. Contact Chris Potenza at [email protected] to subscribe. 

 

Pitang v Beacon Broadway Co., LLC 
October 01, 2024
Appellate Division, First Department
 

Plaintiff was injured in a four-foot fall from the flatbed area of a parked truck to the sidewalk below. The trial court denied plaintiffs' motion for partial summary judgment under Labor Law §§ 240(1) and 241(6), granted the motion of Beacon and Beacway for summary judgment dismissing the complaint against them but denied their motion for summary judgment on their contractual indemnification claim against third-party defendant Skyline, granted Skyline's motion for summary judgment dismissing the Beacon/Beacway defendants' contractual indemnification claim and declined to consider Skyline's motion for summary judgment dismissing plaintiff's complaint.

 

 (MAS) Labor Law § 240(1) 

The First Department affirmed dismissal of the § 240(1) claim because plaintiff was not exposed to the type of elevation-related risk that is essential under Labor Law § 240(1). The Court found this case distinguishable from other cases where the worker was exposed to a significant elevation differential of 10 or more feet while working from on top of stacked materials on a flatbed truck that warranted safety devices of the kind enumerated under the statute.

 

PRACTICE POINT: The Court of Appeals has repeatedly held that Labor Law § 240(1) does not apply to cases involving falls from flatbed trucks.

 

 (TPW) Labor Law § 241(6) 

The First Department affirmed the trial court’s determination that plaintiffs' Labor Law § 241(6) claim was properly dismissed where, as here, plaintiffs failed to articulate a concrete specification from the Industrial Code.

 

 (AMC) Indemnity Issues in Labor Law 

The First Department held that there was a basis to grant Beacway conditional summary judgment on its claim for contractual indemnification as the indemnification provisions in the subject contract were broadly worded to permit indemnification for liability arising due to plaintiff’s potential negligence.
 
The Court also held that the trial court properly granted Skyline summary judgment dismissing Beacon's claim for contractual indemnification as it was not a signatory to the documents providing for contractual indemnification, nor identified as a party to benefit from the indemnification terms.
 
 

Tejada-Rodriguez v 76 Eleventh Ave. Prop. Owner LLC.
October 01, 2024
Appellate Division, First Department

 
Plaintiff was injured when he was hit by a heavy wooden panel that fell from a cured concrete-poured ceiling. The trial court granted plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim.
 
 Labor Law § 240(1) (MAS)

The First Department unanimously affirmed the trial court’s finding that Omnibuild was a general contractor or statutory agent for purposes of Labor Law § 240(1) because it hired plaintiff’s employer for concrete superstructure work and had the authority to exercise control over the work that brought about plaintiff’s injury, regardless of whether it exercised that authority with respect to plaintiff’s injury-producing task.
 
The Court also found that plaintiff was entitled to summary judgment, despite his failure to explain how the panel fell. Contrary to defendants’ contention, the Court held that plaintiff’s account of the accident was not inherently incredible or physically impossible. The Court also held that defendants failed to raise an issue of fact as the type of work plaintiff and his coworkers were performing; dislodging wooden panels from a newly constructed concrete ceiling, “involved a load that required securing” and the Court also held that defendants failed to establish that the use of safety devices would have defeated the task of stripping the forms from concrete beams.
 
PRACTICE POINT: We analyze every Labor Law using the same four elements: (1) appropriate plaintiff; (2) appropriate defendant; (3) appropriate project; and (4) elevation-related/gravity-related risk. Here, Omnibuild was an appropriate defendant because it hired plaintiff’s employer and thus had the authority to exercise control over that work. Additionally, the type of work being performed – dislodging wooden panels from a newly-constructed concrete ceiling – involved a load that required securing.

 

Sandoval v 201 W. 16 Owners Corp.
October 08, 2024
Appellate Division, First Department

 
Plaintiff was using ropes with his coworker, which failed to prevent a stone from falling and causing plaintiff's injuries. The trial court granted plaintiffs' cross-motion for partial summary judgment under Labor Law § 240(1) and denied defendant's motion for summary judgment dismissing the § 240(1) claim and on its claims for contractual indemnification and breach of contract for failure to procure insurance against Edras.
 
 Labor Law § 240(1) (MAS)

The First Department affirmed summary judgment to plaintiff under § 240(1) because the ropes plaintiff was using with his coworker proved inadequate to prevent a stone from falling and causing plaintiff’s injuries. The Court rejected defendant’s argument that the accident was caused by plaintiff’s coworker’s purported negligence “as people are not safety devices within the meaning of Labor Law § 240(1).”
 
PRACTICE POINT: The statute is violated where an object, while being hoisted or secured, falls because of the absence or inadequacy of a safety device of the kind enumerated in the statute, including where, as here, the inadequacy or absence of a safety device results in the uncontrolled descent of an object. Plaintiff was entitled to summary judgment in this case because the rope proved inadequate to prevent the stone from falling.
 
 Indemnity Issues in Labor Law (AMC) 

The First Department held that defendant was entitled to contractual indemnification from Edras because of Article 21.6(d)(i)(C) of defendant's contract with Edras, which contemplates indemnification where plaintiff's injury occurred in the course of his employment. The Court rejected Edras’ argument that Article 21.6(d) and Article 9.12 contradict each other. The Court also held that defendant established its freedom from negligence based on the undisputed evidence that it had no role in directing the work.
 
 

Sandoval-Morales v 164-20 N. Blvd., LLC
October 08, 2024
Appellate Division, First Department

 
Northern owned the site where the work was taking place and leased it to fourth third-party defendant Flushing. Flushing hired Capital to be the general contractor for the work, which, in turn, hired New Era to be the plumbing subcontractor and Paramount to be the painting subcontractor. Plaintiff was working for Paramount as a painter apprentice at the time of her accident which occurred while she was washing paint buckets in a slop sink in a janitor's closet on the first floor of the premises. The testimony established that there was a ladder in the closet and that tiles were missing in the ceiling of that closet. Plaintiff alleges that her accident occurred when an object, later identified to be an electrovalve, fell through the missing tiles in the ceiling and struck her in the head. A New Era plumber, however, testified that he had left the electrovalve on top of the ladder in the closet after being summoned by Capital's superintendent. Before leaving, and at Capital's superintendent's direction, the plumber closed the door to the closet and put caution tape in front of it.
 
The trial court's preliminary conference order required that summary judgment motions be filed within 60 days of the filing of the note of issue. More than two months after the note of issue was filed, Northern purported to cross-move against Flushing's motion, for summary judgment both dismissing, in effect, the complaint and on its common-law indemnification claims against Capital and New Era. The trial court denied, as untimely, Northern’s cross-motion for summary judgment, and denied Capital’s motion for summary judgment dismissing plaintiff's Labor Law §§ 241 (6) and 200 and common-law negligence claims and all common-law indemnification and contribution claims as against it, and on its contractual indemnity claims against New Era and Paramount.
 
 Labor Law § 240(1) (MAS)

The First Department affirmed the trial court’s decision to exercise its discretion in declining to hear Northern’s untimely motion for summary judgment as Northern failed to offer good cause for its delay in moving for summary judgment within the prescribed timeframe, despite be incorrectly labeled as a cross-motion since it sought relief solely against parties than Flushing.
 
PRACTICE POINT: The timing of a summary judgment motion is critical under CPLR 3212(a), which states that “the court may set a date after which no such motion may be made, such date being no earlier than [30] days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than [120] days after the filing of the note of issue, except with leave of court on good cause shown.” The Court of Appeals held that “good cause” requires a showing of good cause for the delay in filing the motion – a satisfactory explanation for the untimeliness – rather than simply permitting meritorious, nonprejudicial filings, however tardy. That reading is supported by the language of the statute – only the movant can show good cause – as well as preventing the filing of eleventh-hour summary judgment motions. No excuse at all, or a perfunctory excuse, cannot be “good cause,” as demonstrated by this case.
 
 Labor Law § 241(6) (TPW) 

The First Department affirmed the trial court’s decision, which denied Capital summary judgment dismissing the Labor Law § 241 (6) claim insofar as predicated on Industrial Code (12 NYCRR) § 23-1.8 (c) (1). That Industrial Code section provides, in part, that “[e]very person required to work or pass within any area where there is a danger of being struck by falling objects or materials or where the hazard of head bumping exists shall be provided with and shall be required to wear an approved safety hat.” Contrary to Capital's argument, this regulation does not require plaintiff to establish that the area in which her accident occurred was normally exposed to falling material or objects. Rather, a plaintiff may establish a violation of 12 NYCRR § 23-1.8 (c) (1) by showing "'that the job was a "hard hat" job, and . . . the plaintiff's failure to wear a hard hat was a proximate cause of h[er] injury'". On the other hand, a defendant may prevail if it establishes that "work on the site had progressed to the point that there was no longer a danger of being struck by falling objects or materials". The Court confirmed issues of fact existed as to whether plaintiff was provided with, or told to wear, a hard hat, and whether a danger of being struck by falling objects or materials remained on the site or in the area in which plaintiff's accident occurred.
 
 Labor Law § 200 and Common-Law Negligence (EDA) 

The First Department found that the trial court properly denied summary judgment to Capital dismissing the Labor Law § 200 and common-law negligence claims. Liability under Labor Law § 200 and common-law negligence may be based on either the means or methods by which the work is performed or a dangerous premises condition (see e.g. Villanueva v 114 Fifth Ave. Assoc. LLC, 162 AD3d 404, 406 [1st Dept 2018]. Here, issues of fact existed as to whether Capital actually exercised supervisory control over the work so as to be liable for the means and methods of New Era's work, insofar as Capital's superintendent allegedly called New Era's plumber away from his work and gave him instructions on how to seal off the area before leaving. The Court also held that issues of fact also remain as to whether the dangerous condition involved in plaintiff's accident was, as she testified, the missing tiles in the janitor closet's ceiling, and, if so, whether Capital had notice, actual or constructive, of that condition.
 
 Indemnity Issues in Labor Law (AMC)

Northern filed a motion for summary judgment seeking, in part, common-law indemnification against Capital and New Era. However, because Northner’s motion was untimely, and it failed to set forth good cause for the motion being untimely, the First Department held that the trial court properly exercised its discretion to in declining to hear Northern’s motion.
 
The Court also held that Capital was properly denied summary judgment on its contractual indemnification claims against Paramount and New Era. Capital's contract with Paramount and New Era has negligence triggers requiring proof of Paramount’s and New Era’s negligence and that their negligence contributed to plaintiff’s accident. As there are issues of fact regarding Paramount’s, New Era’s and Capital’s negligence, Capital’s motion regarding contractual indemnification was premature. Capital was properly denied summary judgment dismissing the common-law indemnification and contribution claims as against it, considering the issues of fact as to its negligence.
 
 

Molina v 114 Fifth Ave. Assoc., LLC
October 15, 2024
Appellate Division, First Department

 
Plaintiff, a steam fitter, had just finished installing a run of fire suppression system piping when a rod and shield affixing one of the segments of the pipe to the ceiling broke free and the pipe fell onto his neck and shoulder. The trial court granted plaintiff's motion for summary judgment on his cause of action under Labor Law § 240(1),
 
 Labor Law § 240(1) (MAS)

The First Department unanimously affirmed the trial court’s decision to award summary judgment to plaintiff on his § 240(1) claim because plaintiff’s evidence in the form of deposition testimony, a coworker’s affidavit, and an employee claim form, showed his claims involved a falling object as well as a fall from an elevation caused by inadequate safety devices under § 240(1). In opposition, the Court held that defendants failed to raise an issue of fact to impugn plaintiff’s credibility or that of his coworker.
 
PRACTICE POINT: Remember that the Court of Appeals declared in Outar v City of New York that “falling object” liability under § 240(1) is no longer limited to cases in which falling objects are in the process of being hoisted or secured and includes objects that required securing for the purposes of the undertaking.

 

Urquia v Deegan 135 Realty LLC
October 15, 2024
Appellate Division, First Department

 
Plaintiff was injured when he was hit by 20-to-30-pound small beams falling from the ceiling, causing him to lose balance while standing on an unsecured ladder. The trial court denied plaintiff's motion for partial summary judgment on his Labor Law §§ 240(1) and 241(6) claims, denied third-party defendant Capital’s motion for summary judgment dismissing plaintiff's complaint, denied Capital summary judgment dismissing defendants'/third-party-plaintiffs' claims for contractual indemnification and breach of contract for failure to procure insurance, granted defendants'/third-party-plaintiffs' motion for contractual indemnification to the extent of awarding such relief to defendant/third-party general contractor Chess, denied Capital's motion to preclude affidavits and/or testimony from nonparty witness Alexander Diaz Ordaz for noncompliance with a judicial subpoena, and granted defendants/third-party plaintiffs' motion, as owner Deegan and general contractor (Chess), for summary judgment dismissing the third-party cross-claims for common-law indemnification and contribution. 
 
 Labor Law § 240(1) (MAS)

The First Department reversed the trial court’s decision and granted summary judgment to plaintiff as he was struck by a falling object from the ceiling, causing him to lose his balance while standing on an unsecured ladder. In opposition, the Court held that Capital’s evidence failed to raise an issue of fact.
 
PRACTICE POINT: The failure to properly secure a ladder, to ensure that it remains steady and erect while being used, constitutes a violation of Labor Law 240(1). In this case, plaintiff did not rely on a “falling object” theory of liability, but rather that defendant’s failure to properly secure the ladder by having someone hold it or by the provision of some other safety device led to its unsteadiness, and, ultimately, to his injury. Plaintiff was also not required to show that the ladder on which he was standing was defective or that he fell completely off the ladder to the floor.
 
 Labor Law § 241(6) (TPW) 

The First Department reversed the trial court’s decision to grant the branch of Capital's motion for summary judgment dismissing plaintiff's Labor Law § 241(6) claim predicated upon 12 NYCRR § 23-1.7(a)(1).  Plaintiff's reliance on 12 NYCRR § 23-1.7(a)(1) in support of his Labor Law § 241(6) claim was misplaced. Such regulation cannot reasonably be interpreted as applying to the facts of this case given that the overhead planking protection called for under 23-1.7(a)(1) would interfere with plaintiff's ability to perform his work stripping forms from the ceiling. In any event, plaintiff did not offer sufficient proof to show the overhead protection specified in § 23-1.7(a)(1) was needed, as there was no proof that people were required to work or pass through the basement floor under construction, or that the area was normally exposed to falling material or objects. Further, since there was conflicting evidence as to whether the beamed structure that supported the concrete forms was complete and erected as designed, triable issues exist as to whether 12 NYCRR §§ 23-2.2(a), (b) and (c)(1) were violated, precluding a grant of summary judgment to either party on that claim.
 
 Indemnity Issues in Labor Law (AMC)

The First Department held that as Deegan and Chess are named as additional insureds on Capital's Commercial General Liability (CGL) policy, their third-party claims for contractual indemnification are barred by the anti-subrogation rule. Further, to the extent Deegan's/Chess’ contractual indemnification claims seek relief in the event a liability award exceeds the CGL policy limits, the Court held that the umbrella/excess liability coverage required under the subcontract terms would be triggered.

 

Rodriguez v Riverside Ctr. Site 5 Owner LLC
October 22, 2024
Appellate Division, First Department

 
Plaintiff fell from a cement truck while cleaning it after delivering cement to a construction site in Manhattan. The property owner, RCB4, hired TCCNY as the construction manager and Sorbara as the concrete superstructure subcontractor. Plaintiff's employer, nonparty Jenna, was Sorbara's cement supplier. Third-party defendant Valente owned plaintiff's truck. The trial court granted plaintiff's motion for partial summary judgment on his Labor Law § 240 (1) claim and denied defendants’ cross-motion for summary judgment dismissing the complaint as against them. 
 
 Labor Law § 240(1) (MAS)

The First Department unanimously affirmed the trial court’s finding that plaintiff's washing the truck at the time of the injury was a continuation of his enumerated activity within the meaning of construction work under § 240 (1) and his actions at the time of the injury were not separate or clearly distinguishable from his work. The Court held that the record supports the conclusion that as plaintiff was engaged in an activity necessary and incidental to the alteration work occurring at the work site, his accident fell within the purview of the statute. 
 
PRACTICE POINT: Plaintiff was “engaged in work necessary and incidental to” his undisputedly covered work of delivering cement to the construction site. It is neither pragmatic nor consistent with the spirit of § 240(1) to isolate the moment of injury and ignore the general context of the work, as the intent of the statute was to protect workers employed in the enumerated acts, even while performing duties ancillary to those acts.
 
 Labor Law § 241(6) (TPW) 

The First Department held that plaintiff's Labor Law § 241(6) claim was academic in light of the grant of partial summary judgment on his Labor Law § 240(1) claim.

 

De Souza v Hudson Yards Constr. II LLC
October 24, 2024
Appellate Division, First Department

 
Plaintiff was injured when, while stripping concrete forms from a wall inside an elevator shaft, an unsecured plank on which he was standing shifted and caused him to fall. The trial court granted plaintiff's motion for partial summary judgment on his Labor Law §§ 240(1) and 241(6) claims.
 
 Labor Law § 240(1) (MAS) 

The First Department unanimously affirmed the trial court’s decision as plaintiff demonstrated that he was not provided with adequate safety devices, both because of the lack of an overhead attachment point for his self-retracting lifeline, also known as a yo-yo, and that the plank on which he was standing at the time of his accident was not secured. The Court pointed out that while defendants’ expert opined that the yo-yo was designed to stop a fall within 24 to 54 inches, the expert ignored plaintiff’s expert’s opinion that the failure to provide an overhead attachment point prevented the line from engaging as designed and causing plaintiff to fall 10 to 12 feet.
 
In opposition, the Court held that defendants failed to raise an issue of fact. The accident report and medical forms on which defendants rely are inadmissible hearsay because defendants failed to show that the translation of the statements attributable to plaintiff were “provided by a competent, objective interpreter whose translation was accurate.”
 
PRACTICE POINT: To prevail under § 240(1), the injured worker must show that the statute was violated, and that this violation was a proximate cause of his or her injuries. The Labor Law does not require a plaintiff to have acted in a manner that is completely free from negligence. It is absolutely clear that if a statutory violation is a proximate cause of an injury, the injured worker cannot be solely to blame for it.
 
 Labor Law § 241(6) (TPW)

The First Department held that considering the grant of plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim, it need not reach his Labor Law § 241(6) claim.

 

Macaulay v New Line Structures & Dev. LLC
October 24, 2024
Appellate Division, First Department

 
Plaintiff was struck on the head when an unsecured heavy metal panel being removed from a louver broke free and fell. Both plaintiff and defendant’s witness testified that the panel was four feet wide and eight feet tall, weighing between 150 and 200 pounds. The trial court denied plaintiff's motion for partial summary judgment as to liability on his Labor Law § 240(1) claim. 
 
 Labor Law § 240(1) (MAS)

The First Department unanimously reversed the trial court’s decision and granted plaintiff’s motion because he showed that his accident was proximately caused by a failure to provide him with safety devices offering adequate protection from gravity-related hazards.
 
Plaintiff’s expert demonstrated that the panel “required securing for the purposes of the undertaking” and that statutorily enumerated safety devices could have prevented the accident. In opposition, the Court held that defendants failed to raise an issue of fact as they did not submit any evidence to rebut the opinion of plaintiff’s expert or to demonstrate that they presence of a safety device would have defeated the task of removing the panels.
 
PRACTICE POINT: That plaintiff or his coworkers were removing or prying loose the panel when it fell does not mean that the accident was not gravity-related or rendered the protections of § 240(1) inapplicable because plaintiff showed that the type of injury-producing work being performed involved a load that required securing.

 

DeOleo v 90 Fifth Owner, LLC
October 29, 2024
Appellate Division, First Department

 
Plaintiff, an employee of a painting subcontractor, Central Painting, was assigned to caulk windows as part of building renovations. Plaintiff testified that there were no ladders available in the supply room and that his supervisor directed him to complete the task however he could. He used a bucket placed on top of a convector to reach the window tops and was injured when, while dismounting from the bucket, he stepped into a hole in the convector cover. The trial court granted plaintiff's motion for summary judgment as to liability on his Labor Law § 240(1) claim and denied defendants' motion to dismiss the Labor Law §§ 240(1) and 241(6) claims as against both defendants and the Labor Law § 200 causes of action as against Tri Star.
 
 Labor Law § 240(1) (MAS)

The First Department unanimously affirmed the trial court’s decision as his work caulking the tops of windows that were 12 feet off the floor subjected him to elevation-related risks covered by § 240(1). Moreover, a bucket was “an inadequate safety device that failed to provide proper protection.” In opposition, the Court held that defendants failed to raise a triable issue of fact as to whether plaintiff was a recalcitrant worker in that he knew that a ladder was available for his use, he was expected to use the ladder for his work, yet “chose for no good reason not to do so.”
 
PRACTICE POINT: To establish a sole proximate cause defense such that a defendant has no liability under Labor Law § 240(1), it must prove plaintiff: (1) had adequate safety devices available; (2) knew both that the safety devices were available and that he or she was expected to use them, (3) chose for no good reason not to do so, and (4) would not have been injured had he or she not made that choice. Here, the defense could not establish the second, third and fourth elements; therefore, the defense did not apply.

 

Delcid v Park Ave. Christian Church
October 31, 2024
Appellate Division, First Department

 
Plaintiff he was injured when a piece of construction material, known as WonderBoard, which had been screwed into the lobby wall the day before the accident, fell on him. The trial court denied defendants' motion for summary judgment dismissing the Labor Law § 240(1) claim, the § 241(6) claim as based on a violation of Industrial Code § 23-1.7(a)(1), as well as the § 200 and common-law negligence claims. 
 
 Labor Law § 240(1) (MAS) 

The First Department unanimously affirmed the trial court’s decision as any discrepancies among the witness’ testimony about whether WodnerBoard was actually installed on the walls in the lobby merely raises issues of fact. The Court rejected defendants’ argument that the statute did not cover the WonderBoard because it was a permanent fixture as the cases relied on to support that position involved injuries caused by fixtures that were part of the preexisting structure before work began.
 
PRACTICE POINT: Labor Law § 240(1) does not apply to “falling object” cases if the object on which the force of gravity was applied, was not material being hoisted or a load that required securing purposes of carrying out plaintiff’s undertaking and the object was part of the preexisting structure as it appeared before plaintiff’s work began. Here, the defense was not entitled to summary judgment as the Court found conflicting versions of how the accident occurred.
 
 Labor Law § 241(6) (TPW)

The First Department affirmed the trial court’s decision not to dismiss the § 241(6) claim based on Industrial Code § 23-1.7(a)(1), finding triable issues of fact as to whether the lobby where plaintiff was struck was “normally exposed to falling materials or objects.”
 
 Labor Law § 200 and Common-Law Negligence (EDA) 

The First Department affirmed the trial court’s decision in finding a triable issue of fact on the Labor Law § 200 and common-law negligence claims. The Court rejected defendants' assertion that the record demonstrated that they did not exercise control over the work was conclusory and failed to establish their burden that they lacked control over the activity that caused the injury (see Sotarriba v 346 W. 17th St. LLC, 179 AD3d 599 [1st Dept 2020]).

 

Guzman-Saquisili v Harlem Urban Dev. Corp.
October 31, 2024
Appellate Division, First Department

 
Defendants are the owner and lessee of the property at which plaintiff's accident occurred, as well as the de facto general contractor/manager for the work being performed there. Plaintiff was a carpenter employed by Sky Material at the time of his accident. According to plaintiff, his accident occurred as he was retrieving wooden planks for his coworker to install on the floor. Doing so required plaintiff to traverse over an uncovered beam pocket measuring three feet wide and three feet deep. His accident occurred when he tripped over metal debris on the floor and fell into the beam pocket. Plaintiff was wearing a harness with a yo-yo/at the time of his accident, but there was no place for him to tie off. The trial court denied plaintiff's motion for summary judgment on the Labor Law §§ 240 (1) and 241 (6) claims.
 
 Labor Law § 240(1) (MAS)

The First Department reversed the trial court and granted plaintiff’s motion for summary judgment. Plaintiff showed that his accident arose from a gravity-related risk against which defendants failed to adequately protect him. Assuming, without deciding, that the integral-to-the-work defense applies, the Court held that defendants have only offered surmise and conjecture as to whether the uncovered beam pocket was integral to the work being performed, and that covering the beam pocket into which plaintiff fell would have been contrary to the objective of the work being performed.
 
PRACTICE POINT: If plaintiff’s accident was the result of the absence of a safety device, and the defense only raises issues as to plaintiff’s comparative negligence – such as claiming plaintiff could or should have simply stepped over the beam pocket – remember that this is not a defense under § 240(1).

 

Jara-Salazar v 250 Park, L.L.C.
October 31, 2024
Appellate Division, First Department

 
Plaintiff was standing on an A-frame ladder while removing a main sprinkler pipe hung from the ceiling, when the unsecured pipe fell and struck his ladder, causing him to fall to the ground. The trial court denied plaintiff's motion for partial summary judgment on his Labor Law § 240 (1) claim.
 
 Labor Law § 240(1) (MAS) 

The First Department unanimously reversed the trial court’s decision and granted summary judgment to plaintiff as defendants are liable because plaintiff was not provided any safety devices except an unsecured ladder. The Court also found that plaintiff was not provided with any safety devices to secure the pipe while it was being removed; therefore, the Court rejected defendants’ recalcitrant worker defense.
 
PRACTICE POINT: Even if plaintiff disregarded an instruction not to place the ladder where the pipe could hit it, that was not the sole proximate cause of the accident as “an instruction to avoid an unsafe practice is not a sufficient substitute for providing a worker with a safety device to allow him to complete his work safely. Also, people are not safety devices within the meaning of § 240(1).

 

Ruiz v BOP 245 Park LLC
October 31, 2024
Appellate Division, First Department

 
Plaintiff fell off a scaffold, which lacked guardrails after the scaffold moved while he was standing atop it. The trial court denied plaintiff's motion for summary judgment on his Labor Law §§ 240(1) and 241(6) claims. 
 
 Labor Law § 240(1) (MAS) 

The First Department reversed the trial court’s decision and granted plaintiff’s motion as it is undisputed that he fell off a scaffold, which lacked guardrails that would have prevented his fall, after the scaffold moved while he was standing atop it. Although defendants presented an affidavit from the principal of nonparty contractor and plaintiff’s employer stating that there was a standing order for its employees to use only baker scaffolds with safety railings, that there were safety railings available at the worksite; and that safety railings would be provided on request, the Court held such testimony is insufficient to raise a triable issue of fact. The principal was not present at the worksite on the date of plaintiff’s accident and offered no basis to find that he personally knew sufficient guardrails were present at the worksite for plaintiff’s use on the scaffold.
 
PRACTICE POINT: Evidence that the scaffold on which plaintiff was working at the time of his accident collapsed under him for no apparent reason is sufficient for plaintiff to establish entitlement to partial summary judgment on the issue of liability under Labor Law § 240(1).

 

Shewprasad v KSK Constr. Group, LLC
October 2, 2024
Appellate Division, Second Department

 
Plaintiff was injured when a cluster of steel railings that had been stacked vertically against one another fell on him while he was working at a construction site in Brooklyn.  The trial court denied plaintiff's motion for summary judgment on the Labor Law § 241(6) as was predicated on violations of 12 NYCRR §§ 23-1.7(e)(2) and 23-2.1(a)(1) as asserted against KSK Construction and 848 Development.
 
 Labor Law § 241(6) (TPW)

The Second Department affirmed the trial court’s decision denying plaintiff's motion for summary judgment. Plaintiff failed to establish that 12 NYCRR § 23-1.7(e)(2), which protects workers from tripping hazards, was applicable given the underlying facts. Plaintiff also failed to establish that 12 NYCRR § 23-2.1(a)(1) was applicable under the circumstances of this case. That section provides, “[a]ll building materials shall be stored in a safe and orderly manner. Material piles shall be stable under all conditions and so located that they do not obstruct any passageway, walkway, stairway or other thoroughfare”, and the Court held that plaintiff failed to eliminate all triable issues of fact as to whether the accident occurred in a "passageway, walkway, stairway or other thoroughfare".
 
 

Lopez v Kamco Servs., LLC
October 30, 2024
Appellate Division, Second Department

 
Plaintiff was injured while performing electrical work in Brooklyn at premises owned by Kamco. Kamco retained the services of, nonparty Switch Electric. Plaintiff was employed by Switch Electric as a mechanic and assisted with the installation of electrical cables to allow the distribution of electricity to a tent that was used by Kamco to store materials. Plaintiff was struck in the left eye by an electrical cable while attempting to connect the cable to a disconnector and claimed that no goggles or other eye protection was provided to him. The trial court granted Kamco’s motion for summary judgment dismissing the Labor Law § 241(6) claim predicated upon a violation of 12 NYCRR § 23-1.8(a) asserted against it, dismissing that portion of that cause of action.
 
 Labor Law § 241(6) (TPW) 

The Second Department reversed the trial court’s decision and denied the motion since Kamco failed to establish that Labor Law § 241(6) was inapplicable to plaintiff’s activities. The Court also held that Kamco failed to establish that 12 NYCRR § 23-1.8(a) was inapplicable or that plaintiff’s actions were the sole proximate cause of his alleged injuries as Kamco failed to eliminate triable issues of fact as to whether plaintiff was engaged in work that might endanger the eyes, whether approved eye protection was provided to plaintiff on the date of the accident, and whether Kamco’s failure to require plaintiff to wear safety goggles was a proximate cause of his alleged injuries.
 
 

Rogers v Peter Scalamandre & Sons, Inc.
October 30, 2024
Appellate Division, Second Department

 
Peter Scalamandre was the general contractor at the construction site and had subcontracted with Certified for carpentry services. Plaintiff, an employee of Certified, used a boom lift to install louvers near the roof line of the building. He was inside the basket of the lift and was wearing a harness attached to the basket. After completing the installation, plaintiff maneuvered the lift so that it was extended in a nearly vertical position, and the lift basket was 30 feet above the ground. According to an eyewitness, the arm of the lift suddenly “telescoped in” on itself, causing plaintiff to sustain injuries. 
 
The trial court granted plaintiff's motion for summary judgment on the Labor Law § 240(1) claim and denied defendant/third-party plaintiff's cross-motion for summary judgment dismissing the Labor Law § 241(6) claim. The trial court also denied the third-party defendant's motion for summary judgment dismissing the third-party claims for contractual indemnification and breach of contract for failure to procure insurance.
 
 Labor Law § 240(1) (MAS) 

The Second Department affirmed the trial court’s decision. The defense argued that the statute was not violated because plaintiff did not fall from a height, which was raised for the first time on appeal. However, the Court considered that argument since it presents a pure question of law appearing on the face of the record that could not have ben avoided had it been raised at the proper time. The fact that plaintiff remained in the basket of the lift while it fell is immaterial as to whether a statutory violation occurred, as it was undisputed how plaintiff’s injuries occurred. Therefore, the Court held that plaintiff is entitled to the presumption that the lift did not provide proper protection from elevation-related risks.
 
PRACTICE POINT: Once plaintiff meet his or her burden on establishing a violation of the statute that was a proximate cause of the injury, then the burden shifts to defendant, who may defeat plaintiff’s motion for summary judgment only if there is a plausible view of the evidence – enough to raise a question of fact – that there was no statutory violation and that plaintiff’s own acts or omissions were the sole cause of the accident.” Here, in opposition to plaintiff’s showing, the Court held that defendant failed to raise a triable issue of fact.
 
 Labor Law § 241(6) (TPW) 

The Second Department affirmed the trial court’s decision as Scalamandre failed to establish that it lacked actual notice of a structural defect or unsafe condition in the boom lift; therefore; he failed to demonstrate entitlement to summary judgment as a matter of law dismissing the Labor Law § 241(6) claim predicated on a violation of 12 NYCRR § 23-9.2(a), which requires that all power-operated equipment be maintained in good repair and, “[u]pon discovery, any structural defect or unsafe condition in such equipment shall be corrected by necessary repairs or replacement.”

 

Sharif v Pritam Prop., Inc.
October 30, 2024
Appellate Division, Second Department

 
Plaintiff was injured when he slipped and fell off a chain-link fence on property owned by defendant. After the trial court granted plaintiff's motion for leave to enter a default judgment against defendant in an order entered August 27, 2020, plaintiff proceeded to an inquest on the issue of damages. After an inquest, the court awarded plaintiff damages in the principal sum of $100,000.
 
 Labor Law § 240(1) (MAS) 

The Second Department reversed the trial court’s decision and increased the award to $400,000. Based on the proof submitted at the inquest, the award of damages deviated materially from what would be reasonable compensation.
 
PRACTICE POINT: A determination for an award of pain and suffering will not be set aside unless the award deviates materially from what would be reasonable compensation. The “reasonableness” of compensation must be measured against relevant precedent of comparable cases. Although prior damage awards in cases involving similar injuries are not binding on the courts, they guide and enlighten them with respect to determining whether a verdict in each case constitutes reasonable compensation.
 
 

Ells v City of Niagara Falls
October 4, 2024
Appellate Division, Fourth Department

 
Plaintiff commenced this Labor Law and common-law negligence action seeking damages for injuries he sustained when a tree that was being cut down by a coworker fell and struck him. Plaintiff's employer was the general contractor on defendant's roadway rehabilitation project. The project included the erection of a pedestrian bridge. At the time of the accident, plaintiff and his coworkers were removing trees to ready the site for construction of the pedestrian bridge, with plaintiff assisting in the operation of a woodchipper.  The Supreme Court granted the motion of plaintiff for partial summary judgment on his Labor Law §§ 240 (1) and 241 (6) claims and denied the motion of defendant for summary judgment dismissing the complaint.
 
 (DRA) Labor Law § 240(1)  

The Fourth Department unanimously affirmed the trial court’s decision. Although trees are not structures and tree removal work in and of itself is not an enumerated activity within the meaning of § 240(1), tree removal performed to facilitate an enumerated activity is covered under that statute.
 
PRACTICE POINT: Marc asked me to write this practice point because I argued the appeal. With all due respect to the Court, I think they discounted the Martinez v City of New York 1999 case from the Court of Appeals which rejected the “necessary and integral” test and instead held that § 240(1) “afford[s] no protection to a plaintiff [who is] injured before any activity listed in the statute [is] under way.” The Fourth Department disagreed with my argument and upheld the summary judgment for the plaintiff.  The key appears to be that the court’s finding that the work was ancillary to the larger project and that the larger project was ongoing and that the tree removal was a part of a separate phase easily distinguishable from the rest of the project. The site work, including tree removal, was, of course, necessary before the other work could be done and that point was emphasized by the court. 
 
 Labor Law § 241(6) (TPW)

The Fourth Department affirmed the trial court’s decision to grant partial summary judgment pursuant to Labor Law § 241 (6). The Court held that plaintiff met his initial burden of establishing that he was engaged in an activity within the protection of Labor Law § 241 (6) at the time of his accident by submitting uncontradicted evidence that the tree removal work he was engaged in "was related to construction, demolition or excavation work. Plaintiff also met his burden of establishing that provisions of the Industrial Code were applicable, that they were violated, and that those violations constituted a failure to use reasonable care. Specifically, plaintiff submitted an uncontroverted expert opinion that he was not required to be present in the area where the trees were being felled, as well as uncontradicted evidence that the area was not sectioned off. That evidence was sufficient to establish, as a matter of law, a violation of 12 NYCRR 23-1.7 (a) (2), which "requires barricades to cordon off areas for the safety of those [, like plaintiff,] not required to work within the sectioned-off area". Plaintiff also submitted uncontradicted evidence that the use of the woodchipper to dispose of debris was not done safely because the woodchipper had been placed within the area where trees were falling, in violation of 12 NYCRR 23-2.1 (b). In opposition, the Court held that defendant failed to raise a triable issue of fact
 

 New York Industrial Code Regulations (EDA)

Regulation § 23–1.25 (e) Fire protection.
(1) Oily and greasy substances shall be kept away from the areas where cylinders, hose and torches are being used. Cylinder valves and connections shall not be lubricated.

Regulation § 23–1.25(d) is likely sufficiently specific to support a Labor Law § 241(6) cause of action to the extent it requires that oily substances be kept away from the areas where cylinders, hoses and torches are being used and that valves and connections not be lubricated.

There are no cases deciding on the applicability or specificity of Regulation § 23–1.25(e) in the Appellate Divisions.

 

 

Hurwitz Fine P.C.
 
Buffalo
1300 Liberty Building, Buffalo, NY 14202
Phone: 716-849-8900, Fax: 716-855-0874
             
Long Island
575 Broadhollow Road, Melville, NY 11747
Phone: 631-465-0700, Fax: 631-465-0313

Albany
Phone:  518-641-0398

Additional Offices
Albion  |  Amherst  |  Hartford, CT  |  Niagara Falls  |  Rochester

Hurwitz Fine P.C. is a full-service law firm providing legal services
throughout the State of New York
 
www.hurwitzfine.com
© 2024, Hurwitz Fine P.C. All Rights Reserved

In some jurisdictions, newsletters such as this may be considered Attorney Advertising.

Newsletter Sign Up