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Stoneham v. Joseph Barsuk, Inc.
December 19, 2023
Court of Appeals
Plaintiff was working on defendant’s flatbed commercial trailer. At the time of the incident, plaintiff utilized a front-end loader to lift the trailer and was in the process of replacing a leaking air tank on the trailer’s brake system. The trailer was hoisted about five-and-a-half feet off the ground using the loader’s bucket attachment. While working underneath the trailer, the loader rolled backwards, dropping the trailer on top of plaintiff. The trial court denied plaintiffs’ motion for summary judgment and granted defendant’s cross-motion to dismiss the Labor Law § 240(1) claim, finding that plaintiff was not engaged in a protected activity under in the meaning of the statute.
Plaintiff argued on appeal that he was engaged in a protected activity because the replacement of the air tank constituted a “repair” § 240(1), and that the trailer itself constituted a “structure” under the statute. The Fourth Department affirmed the trial court’s decision, determining that plaintiff was performing his normal occupation of repairing vehicles, and thus, was not engaged in any construction, renovation, or alteration at the time of his incident. Justices Winslow’s and Bannister’s dissent agreed with plaintiff that the trailer was a structure under § 240(1) and, therefore, would have denied defendant’s motion because he failed to eliminate all triable issues of fact as to whether plaintiff was engaged in routine maintenance – which falls outside the protections of Labor Law § 240(1) – or a repair of the trailer; a protected activity.
 Labor Law § 240(1) (MAS)
The Court of Appeals affirmed the Fourth Department’s order and held that plaintiff’s activity, ordinary vehicle repair, is not an activity covered by Labor Law § 240(1). If the statute applied in this case, car owners would be absolutely liable for gravity-related injuries that occurred when a mechanic was working on their car. The majority thus concluded that the broad view of the statutory elements proffered by plaintiff is “too simple,” and accepting it would lead to an unintended and inappropriate expansion of § 240(1) liability.
Justice Cannataro’s dissent contends there is, at least, a question of fact as to whether the protections of Labor Law § 240(1) are available, because plaintiff suffered an injury due to a significant elevation differential, which could have been avoided by providing appropriate safety equipment. Both plaintiff and his expert witness opined that the incident would not have occurred had plaintiff been provided with proper blocks to secure the wheels of the front-end loader, and that the materials available at the worksite on the day of the incident were insufficient for that purpose.
PRACTICE POINT: Labor Law § 240(1) does not automatically apply every time a worker is injured because of a falling object, and the statute’s protections do not apply to every activity that might fit within its literal terms. Here, the Court of Appeals declined to expand the statute to encompass any “repair” of any “structure” and held that ordinary vehicle repair work simply is not an activity covered under the statute.
Knight v Amman & Whitney, Inc.
December 05, 2023
Appellate Division, First Department
NYC’s Department of Environmental Protection (DEP) was called to the worksite of an ongoing roadway reconstruction project to test DEP-owned water main valves in advance of work related to water infrastructure. Amman was the consulting engineer for the worksite. Plaintiff, a colleague, and his supervisor, all DEP employees, reported to the site for the sole purpose of testing the water main valves and “gates.” The testing required plaintiff and his colleague to turn a six-foot water main gate key and determine whether the water main gate was open or closed. Plaintiff was injured when the water main gate key he was attempting to turn popped off an operating nut, knocking him off balance. He did not fall, but he was allegedly injured in the exertion required to regain his balance and stable footing.
The trial court denied Amman’s motion for summary judgment dismissing plaintiff's Labor Law §§ 240(1) and 241(6) claims and, upon a search of the record, granted plaintiff summary judgment on the Labor Law § 240(1) claim.
Labor Law § 240(1) (MAS)
The First Department affirmed denial of Amman’s motion but reversed the trial court’s regarding plaintiff’s motion. Although plaintiff testified that the testing involved stepping into an excavation, an Amman engineer testified that plaintiff and his colleague were turning the water main gate key while standing at street level. Given the competing testimony between plaintiff and the engineer regarding the nature of plaintiff’s activity at the site, the Court held the record presents triable issues as to whether plaintiff was engaged in covered work under Labor Law § 240(1) or a routine activity, which is outside the statute’s scope.
PRACTICE POINT: Where, as here, there is differing testimony as to whether plaintiff’s work was a covered activity under § 240(1) or a routine activity outside the scope of the statute, neither party is entitled to summary judgment.
Orellana v 386 Park S. LLC
December 07, 2023
Appellate Division, First Department
Plaintiff allegedly slipped and fell on a slippery substance in a passageway while carrying a concrete bag on his shoulder. He argued that he slipped on debris and a wet/greasy substance that was in the passageway he was walking through, and the debris and the greasy/wet substance on which he slipped was a “foreign substance” within the meaning of Industrial Code (12 NYCRR) § 23-1.7(d). The trial court denied plaintiff's cross-motion for summary judgment on his Labor Law § 241(6) claim based on an alleged violation of Industrial Code § 23-1.7(d).
 Labor Law § 241(6) (TPW)
The First Department unanimously affirmed the trial court’s denial of plaintiff's cross-motion for summary judgment on Labor Law § 241(6) based on Industrial Code 12 NYCRR § 23-1.7(d). Plaintiff's affidavit in support of the motion, and the attached unauthenticated photographs, were insufficient to establish that the source of the debris he fell on was not associated with the work that he or his coworkers were performing at the construction site and in fact a “foreign substance” within the meaning of 23-1.7(d).
Cabral v Rockefeller Univ.
December 14, 2023
Appellate Division, First Department
Plaintiff was struck in the face when a hydraulic piston, being used as part of a large mechanism to pull a mooring arm and whaler beam in a northerly direction up the East River alongside the FDR Parkway, broke or malfunctioned. Plaintiff was an Ironworker who was part of a gang for steel subcontractor NYCC. The accident occurred at the Rockefeller University (RU) extension project. RU is the owner of the construction site. RU retained Turner as the general contractor, who then subcontracted with various trades to construct a modular building above the FDR on the Upper East Side. To move the modules, Turner subcontracted with Banker Steel, who subcontracted with NYCC, who used a barge crane that they pulled up the East River using tugboats.
The trial court granted plaintiffs' motion for partial summary judgment on their Labor Law § 241(6) claim, denied the Northern defendants’ motion to dismiss RU and Turner Construction's contractual claims, denied defendants' motion for summary judgment dismissing plaintiffs' Labor Law § 241(6) claim, and granted the same motion dismissing plaintiffs' Labor Law §§ 240(1), 200, and common-law negligence claims.
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed dismissal of the Labor Law § 240(1) claim because plaintiff’s accident was not caused by the application of the force of gravity to an object.
PRACTICE POINT: Where the mechanism of injury is not “the direct consequence of the application of the force of gravity to an object,” courts will find the injury is not covered under Labor Law § 240(1).
Labor Law § 241(6) (TPW)
The First Department unanimously modified the trial court’s decision to deny plaintiffs' motion for partial summary judgment on their Labor Law § 241(6) claim. Plaintiffs failed to establish their entitlement to summary judgment based on Industrial Code § 23-9.2(a), as they failed to adduce evidence that defendants or their subcontractors violated that provision by being on notice of a defect in the hydraulic arm which injured plaintiff and failed either to repair it or remove it from service. Further, plaintiffs also failed to adduce evidence of prior notice as to whether the arm was sound and operable at the time of plaintiff's accident to support a violation of Industrial Code § 23-1.5(c).
 Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed dismissal of the Labor Law § 200 claim. As plaintiffs failed to oppose the motion for summary judgment dismissing those claims, their arguments in favor of reinstating the claims on appeal were unpreserved for appellate review.
Bialucha v City of New York
December 19, 2023
Appellate Division, First Department
Plaintiff was working on the platform of a Baker scaffold when it collapsed. Three hours earlier, plaintiff and a coworker raised the scaffold to a height of about five feet above the ground. Plaintiff worked on the scaffold for those three hours until the accident occurred. The trial court denied defendants' motion for summary judgment dismissing plaintiff's Labor Law §§ 240 (1) and 241 (6) claims, and denied plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 240 (1) claim as against the City of New York and New York City School Construction Authority,
Labor Law § 240(1) (MAS)
The First Department reversed the trial court’s decision and granted summary judgment to plaintiff. The evidence showed the scaffold collapsed under plaintiff for no good reason sufficient for liability under § 240(1). Defendants’ expert’s opinion that the cause of the accident was plaintiff’s alleged failure to properly lock all of the scaffold’s pins in place was conclusory, and unsupported by anyone “with personal knowledge of the circumstances surrounding plaintiff’s work at the time of the accident.”
PRACTICE POINT: Summary judgment will always be granted where a scaffold, on which a worker was working, collapses underneath him or her for no apparent reason. Even if it could be established that plaintiff did not lock all the pins in place before ascending the scaffold, this would have amounted to only comparative negligence, which is not a defense under Labor Law § 240(1).
Labor Law § 241(6) (TPW)
Considering the Court’s decision on the Labor Law 240(1) claim, the issue of defendants' liability under Labor Law § 241 (6) was deemed academic.
Diamond v TF Cornerstone Inc.
December 19, 2023
Appellate Division, First Department
Plaintiff was injured when he allegedly slipped and fell on the fourth step from the bottom of the stairway located between the 60th and 61st floors at the premises. TF Cornerstone managed the property and Carnegie owned it. ABM provided janitorial and maintenance services at the premises. Klear, an electrical contractor, was hired to maintain the lighting in the public areas within the premises. Unity was contracted to provide fire safety and security personnel in the lobby area of the premises. On the date of the incident, plaintiff was employed by nonparty Otis Elevator Co. as an elevator mechanic assigned to repair the freight elevator located within the premises.
The trial court denied plaintiff's motion for summary judgment on his Labor Law § 241(6) claim and granted Klear's motion and Unity, AMB, Carnegie Hall, and TF Cornerstone's cross-motions for summary judgment dismissing plaintiff's Labor Law § 241(6) claim. The trial court also denied Unity's cross-motion for summary judgment dismissing the negligence claim against it, denied defendant ABM’s motion for summary judgment dismissing the negligence claim and all crossclaims against it,
Labor Law § 241(6) (TPW)
The First Department concluded the trial court properly dismissed plaintiff's Labor Law § 241(6) claim as being inapplicable as plaintiff was not engaged in construction, demolition, excavation, or making repairs in connection with an ongoing project. Instead, he was performing routine maintenance on the freight elevator at the time of his injury.
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department modified the trial court’s order by granting Unity’s cross-motion to dismiss the negligence claims against it. It held that Unity, the building's fire safety and security contractor, should have been granted summary judgment as a matter of law. Even assuming that Unity's contractual fire safety inspection duties extended to the identification of defects on the premises (such as the broken step involved in plaintiff's mishap), any failure by Unity to identify that defect would not have amounted to launching of a force or instrument of harm within the meaning of Espinal (the seminal case on imposing tort liability in favor of non-contracting third parties). The same is true of any failure by Unity to point out insufficient lighting of the stairway. Further, Unity’s contract did not completely displace the duty of the owner or managing agent to maintain the safety of the premises. There is also no evidence that plaintiff detrimentally relied on Unity’s performance of its contractual duties. Accordingly, on this record, none of the Espinal factors for holding Unity liable for an injury to a third party are satisfied.
Interestingly, unlike Cabral above, even though Unity failed to raise this issue before the motion court, because it is an issue of law, it could be considered for the first time on appeal.
Lopez v 106 LPA LLC
December 19, 2023
Appellate Division, First Department
Plaintiff was allegedly injured when he was struck in the lower back by a four-foot by two-foot concrete form that weighed 50 pounds, which fell from where it had been leaning against a wall. The concrete form had been resting on its side at the same floor level on which plaintiff stood before the accident. The trial court denied defendants’ motion for summary judgment dismissing plaintiff's Labor Law § 240(1) claim, granted defendants' motion as to the Labor Law § 241(6) claim, and denied plaintiff's motion for partial summary judgment on his Labor Law §§ 240(1) and 241(6) claims.
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s decision denying summary judgment to both parties under § 240(1). Although the Court held that defendants met their burden of demonstrating that the statute did not apply to plaintiff’s accident, the Court also held that plaintiff raised triable issues of fact as to whether the injuries flowed directly from the application of the force of gravity to the form, whether the weight of the form could generate a significant amount of force as it fell and whether plaintiff’s injuries were proximately caused by the lack of a safety device of the kind enumerated by the statute.
PRACTICE POINT: Where a falling object had a relatively short descent before hitting plaintiff, in determining whether Labor Law § 240(1) applies, courts will consider whether the size and weight of the object can generate a significant amount of force as it falls.
Labor Law § 241(6) (TPW)
The First Department unanimously modified the trial court’s decision and held that plaintiff raised a triable issue as to his Labor Law § 241(6) claim predicated on an alleged violation of Industrial Code § 23-2.2(d), inasmuch as that section provides that stripped concrete forms “shall be promptly stockpiled or removed from areas in which persons are required to work or pass.” The evidence indicated that the concrete forms were scattered about the garage area following concrete work performed two weeks earlier by plaintiff's employer, the cement contractor.
Castaldo v F.J. Sciame Constr. Co. Inc.
December 28, 2023
Appellate Division, First Department
Plaintiff, a worker at a construction site, was pushing a loaded dolly up a ramp at his foreman's instruction. According to plaintiff's testimony, the ramp was partially obstructed by construction material, including a hose, and as plaintiff walked up the ramp, he tripped on the hose. The trial court granted plaintiffs’ cross-motion for summary judgment on their Labor Law § 241(6) claim predicated alleged violations of Industrial Code §§ 23-1.7(e)(2) and 23-2.1(a) and denied the motion for summary judgment by defendants F.J. Sciame and Sciame LLC (collectively the F.J. Sciame defendants), dismissing all claims against Sciame LLC and the Labor Law § 241(6) claim predicated on an alleged violation of Industrial Code § 23-1.5 against F.J. Sciame.
Labor Law § 241(6) (TPW)
The First Department affirmed in part and modified in part the trial court’s decision. Plaintiff established that he was walking up the ramp in the course of his assigned duties, and that it fell within the definition of a “working area” set forth in Industrial Code § 23-1.7(e)(2), as it was a “physically defined area” that workers routinely crossed to access equipment and materials. Further, the uncontroverted evidence established that the ramp was blocked by piles of construction material, including the hose on which plaintiff tripped. Thus, the hose's position on the ramp constituted a violation of § 23-1.7(e)(2), which prohibits “scattered tools and materials” in working areas. The evidence also established the incident was caused by F.J. Sciame's failure to properly store the hose and other building materials in violation of § 23-2.1(a)(1), and that the accident resulted from the use of the ramp as a storage area for the hose and other building materials. However, the claim predicated on § 23-1.5 should have been dismissed as that provision is a generic directive, which is an insufficient predicate for liability under Labor Law § 241(6).
Erazo v Rockaway Vil. Hous. Dev. Fund Corp.
December 28, 2023
Appellate Division, First Department
Plaintiff's coworker, who asserted that he was pulling the same concrete hose that allegedly caused plaintiff's injuries, contradicted plaintiff's testimony that they had lifted the hose three or four feet above the ground before it fell and injured plaintiff. The trial court denied plaintiff's motion for partial summary judgment under Labor Law § 240(1).
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s decision as defendants raised triable issues of fact precluding summary judgment under Labor Law § 240(1) with the contradictory testimony of plaintiff’s coworker. Plaintiff also failed to demonstrate that the height above the floor or deck of the rebar on which he was standing requires summary judgment in his favor, as a jury could find that placing plywood or wooden planks on top of that rebar was “impractical and contrary to the very work at hand to cover the area where the concrete was being spread.”
PRACTICE POINT: A defendant can defeat a motion for summary judgment under § 240(1) by demonstrating that there is another version of the facts under which they would not be liable for plaintiff’s accident.
Lemache v Elk Manhasset LLC
December 28, 2023
Appellate Division, First Department
Plaintiffs were standing atop a ladder-scaffold performing stucco work on the façade of a building owned by Elk, when the scaffold collapsed without warning, causing plaintiffs to fall 15 feet to the ground. Plaintiffs were not wearing fall-arrest safety devices at the time as the evidence indicated there were no “tie-off” locations that plaintiffs knew about. The equipment was owned by plaintiffs' employer, and plaintiffs received their instructions as to the manner and methods of their work solely from their employer.
The trial court granted plaintiffs' motion for summary judgment on their Labor Law §§ 240(1) and 241(6) claims against Elk, granted Anchor’s motion for summary judgment dismissing Elk's third-party complaint, and denied Elk's motion to dismiss plaintiffs' complaint and for summary judgment on its third-party claims against Anchor for common-law and contractual indemnification and breach of contract.
Labor Law § 240(1) (MAS)
The First Department affirmed the trial court’s decision granting summary judgment to plaintiff under § 240(1). Elk failed to raise a triable issue as to plaintiffs’ purported recalcitrance in not utilizing appropriate safety equipment as there was no evidence that plaintiffs’ deliberately refused to obey a direct and immediate instruction to use an available safety device or a standing order to not stand on the edge of the bathtub so as to invoke the recalcitrant worker defense. The Court also rejected Elk’s sole proximate cause argument that plaintiffs did not erect the scaffold properly using rope to fasten the ladders to the scaffold so as to stabilize the apparatus. There was no evidence that plaintiffs disregarded a direct and immediate order on the way to construct the scaffold, and the statutory obligation to provide safe equipment rested with the owner.
PRACTICE POINT: Defendant was unable to rely on the sole proximate cause defense, because it was unable demonstrate that plaintiff disregarded a direct and immediate order as to how to construct the scaffold. Where, as here, a violation of § 240(1) is a proximate cause of an injury, then plaintiff’s negligent conduct cannot be the sole proximate cause. At best, plaintiff is comparatively at fault, which is not a defense to a claim under § 240(1).
 Indemnity Issues in Labor Law (PCSM)
The First Department reversed the trial court’s decision and granted Elk’s motion for summary judgment on its third-party claims against Anchor for contractual indemnification and for breach of contract. The agreement between Elk and Anchor provided for Anchor to defend, indemnify, and hold Elk harmless from any and all claims arising out of any negligence in connection with Anchor’s work at the jobsite. The Court reasoned that Elk was entitled to contractual indemnification since plaintiffs' injuries arose out of Anchor's operations; Elk did not control or supervise Anchor’s work or provide any tools for the work; and the indemnification was valid and enforceable, only providing for indemnification “to the fullest extent permitted by law”; thus, excluding indemnification for Elk’s own negligence. As to Elk’s breach of contract claim against Anchor, the Court held that Elk’s moving papers established that Anchor failed to purchase a commercial general liability insurance policy naming Elk as an additional insured, as required by agreement between the two parties. Since the Court granted Elk summary judgment on its claim for contractual indemnification, the claim for common-law indemnification was deemed academic. Naturally, the lower court decision granting summary judgment in favor of Anchor as to the third-party claims against it was reversed.
Minholz v Columbia Univ.
December 28, 2023
Appellate Division, First Department
Plaintiff's employer was hired by defendant to move a large computer server rack, among other large items. Plaintiff was injured when the server fell on his foot while he and a colleague were transporting the server rack. The trial court granted defendant's motion for summary judgment dismissing plaintiffs' Labor Law §§ 200, 240(1), and 241(6) claims.
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s decision as defendant established that plaintiff was not among the class of persons entitled to invoke the extraordinary protections under Labor Law § 240(1). The Court rejected plaintiffs’ argument that relocation of the computer server rack was “necessary and incidental” to demolition work. Even if the server rack was being moved in anticipation of demolition work, there was no evidence that construction was ongoing at the time of plaintiff’s incident.
PRACTICE POINT: We analyze every Labor Law § 240(1) case using the same four criteria: (1) appropriate plaintiff; (2) appropriate defendant; (3) appropriate activity; and (4) elevation-related/gravity-related risk. Here, plaintiff could not establish that he was an appropriate plaintiff, since the injury-producing activity was not connected to demolition or other covered work under the statute.
Labor Law § 241(6) (TPW)
The First Department unanimously affirmed the trial court’s decision granting defendant's motion for summary judgment dismissing plaintiffs' Labor Law § 241(6) claim as plaintiff, an employee of a nonparty moving and logistics company, is not among the class of persons entitled to invoke the protections of Labor Law.
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed dismissal of the claim. As with the Labor Law §§ 240(1) and 241(6) claims, plaintiff was not among the class of persons entitled to invoke the protections of Labor Law § 200.
Rivas v Purvis Holdings, LLC
December 6, 2023
Appellate Division, Second Department
Plaintiff was employed by third-party defendant masonry contractor. who was hired by defendants. He ascended a wooden ladder that had been set up by his employer between the 16th and 17th floors, prior to the installation of a permanent staircase, to check the status of cement on the 17th floor. While standing on the second rung from the top of the ladder and beginning his descent on the ladder back to the 16th floor, the ladder moved, causing him to lose his balance. The trial court denied plaintiffs' cross-motion for summary judgment on the Labor Law § 240(1) claim and granted defendants’ motion for summary judgment dismissing the Labor Law § 241(6) claim.
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s decision. Although plaintiffs’ evidence established that the ladder moved underneath plaintiff, the Court held that defendants raised a triable issue of fact as to whether his accident resulted from a violation of Labor Law § 240(1).
PRACTICE POINT: Where, as here, credible evidence reveals differing versions of the accident, one under which defendants would be liable, and another under which they would not, questions of fact will preclude summary judgment.
Labor Law § 241(6) (TPW)
The Second Department affirmed the trial court’s dismissal of plaintiff’s Labor Law § 241(6) claim. The Court noted that photographs taken by plaintiff the day after the accident demonstrated that defendants did not violate 23-1.21(b)(4)(ii), as the photographs show that the subject ladder was not on a slippery surface, and that the bottom of the ladder was immobilized by the use of an appropriately secured footing. In addition, as the trial court correctly determined, plaintiffs abandoned their reliance on provisions of the Industrial Code other than 23-1.21(b)(4)(ii) by failing to address those provisions in their opposition to defendants' motion. In any event, Industrial Code 23-1.21(b)(4)(iv) was deemed inapplicable as the ladder was not a leaning ladder.
Castillo v Hawke Enters., LLC
December 20, 2023
Appellate Division, Second Department
Plaintiff was allegedly injured while he and his coworker attempted to lower a 194-pound cylinder from a height of 10 to 11 feet above the ground, while performing work on a fire-suppression system at a gas station. While lowering the cylinder, plaintiff's coworker dropped it four inches, which trapped plaintiff's hand between the cylinder and a pillar, causing injury to plaintiff's left middle finger. The trial court denied plaintiff's motion for leave to amend the amended complaint and bill of particulars to assert a cause of action alleging a violation of Labor Law § 240(1), denied, as academic, plaintiff's separate motion for summary judgment on the issue of liability pursuant to Labor Law § 240(1) and granted defendants' motion for summary judgment dismissing the Labor Law § 240(1) claim.
Labor Law § 240(1) (MAS)
The Second Department reversed the trial court’s decision and granted plaintiff’s motion for leave to amend his pleadings to allege a claim under Labor Law § 240(1). However, the Court affirmed that portion of the decision denying plaintiff summary judgment because he failed to meet his burden that his accident involved the type of elevation-related injury to which the statute was intended to protect against. As the cylinder fell only four inches but did so with such force as to crush plaintiff’s finger, the Court found triable issues of fact as to whether the elevation differential between plaintiff and the falling object was de minimis.
The Court also affirmed the decision denying defendants’ motion as they failed to prove plaintiff was engaged in routine maintenance, and not repair work, at the time of the accident or that he was the sole proximate cause of his injuries.
PRACTICE POINT: In determining whether an elevation differential is physically significant or de minimus, courts consider not only the height differential itself, but also the weight of the falling object and the amount of force it could generate, even over the course of a relatively short descent.
Woodruff v Islandwide Carpentry Contrs., Inc.
December 20, 2023
Appellate Division, Second Department
The decedent, an employee of general contractor Titan, was injured while repairing a ceiling installed by defendant at the job site. During the gut renovation of the job site, Titan's project manager and owner instructed the decedent to spackle a portion of the second-floor ceiling that defendant allegedly had installed but left unfinished, which was at or near a stairwell connecting the first and second floors. The decedent stood on a stairwell railing to spackle the ceiling. He slipped on the railing and fell down the stairwell onto the first floor. The trial court granted defendant’s motion 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 defendant established that it was not an agent of the owner or general contractor because it was not at the job site on the day of the accident and it did not have the authority to supervise or control the decedent’s work.
PRACTICE POINT: To hold a defendant liable as an agent of the general contractor or owner for violations of Labor Law §§ 240(1) and 241(6), there must be a showing that it had the authority to supervise and control the work that brought about the injury. The determinative factor is whether the party had the right to exercise control over the work, not whether it actually exercised that right. Here, defendant established that it was neither the owner’s nor general contractor’s agent under Labor Law § 240(1).
Schoonover v Diaz
December 21, 2023
Appellate Division, Third Department
Plaintiff, a laborer employed by a nonparty, was injured during construction on a hotel owned by defendants. Defendants hired Hospitality Specialist as the general contractor for the project. On the day of the accident, plaintiff was guiding a two-person basket lift, operated by his supervisor, through the hotel's rear parking lot while the construction was underway. Plaintiff was walking backwards, facing the basket lift, when he was struck and knocked to the ground by a vehicle operated by defendant George Diaz, a hotel employee, who was backing out of a parking space to move his car at the request of a hotel valet. Diaz was ticketed for unsafe backing under Vehicle and Traffic Law §1211(a) and subsequently pleaded guilty to that violation. The trial court granted plaintiff's motion for partial summary judgment and denied Defendants’ cross-motion to dismiss the claims for common-law negligence and violation of Labor Law § 200.
Labor Law § 241(6) (TPW)
The Third Department reversed the trial court’s decision which granted plaintiff summary judgment on the issue of liability on the Labor Law § 241(6) claim. Plaintiff relied on a violation of Industrial Code § 12 NYCRR 23-1.29, arguing plaintiff was a designated flagger within the purview of the regulation. However, a violation of a regulation does not necessarily establish a right to summary judgment on a Labor Law § 241 (6) claim. Proof of a regulatory violation is merely “some evidence” to be considered on the question of negligence. In viewing the evidence in the light most favorable to the nonmovant, the Court was unwilling to find the violation was a proximate cause of plaintiff’s injuries as a matter of law.
Labor Law § 200 and Common-Law Negligence (ESB)
The Third Department affirmed the trial court’s denial of defendants’ cross-motion for dismissal of the Labor Law § 200 and common-law negligence claims. First, it noted that the parties disagreed as to whether this was a dangerous condition or means and methods case. Regardless of the circumstances, however, summary judgment properly was denied. With regard to “dangerous condition,” defendants offered no evidence about the creation of or notice of any dangerous condition. Rather they only provided evidence that defendants did not direct or control the work. Therefore, defendants never met their burden of proof. As for means and methods, while the burden did shift to plaintiff, he was able to offer evidence that defendants were pushing them to finish the work, despite plaintiff’s and his employer’s concerns over using the lift in high winds. Therefore, a rational jury could find, on this evidence, that defendants retained authority beyond inspection of the work. Accordingly, there was a triable question of fact as to whether defendants retained supervisory control over the project sufficient to impose liability under Labor Law § 200.
 New York Industrial Code Regulations (EDA)
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Note from David R. Adams:
