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Lindemann v VNO 100 W. 33rd St. LLC
January 09, 2024
Appellate Division, First Department
Plaintiff, a journeyman carpenter employed by Centre, was injured when he tripped and fell over a raised computer floor. Centre was a subcontractor retained by Icon to provide construction-related work at a building owned by VNO. Icon retained Hi Tech for the installation of the raised flooring at the site. Plaintiff alleged that when he stepped up to reach a drop outlet from the ceiling, he fell on the metal pedestal that supported the unfinished flooring. He also alleged that the computer floor was raised 15 to 18 inches, and he sustained injuries to his back and lower extremities because of his fall. The trial court granted defendants' motion for summary judgment dismissing the complaint.
 Labor Law § 241(6) (TPW)
The First Department affirmed the trial Court’s grant of defendants' motion for summary judgment on plaintiff's Labor Law § 241(6) cause of action. Plaintiff alleged violation of Industrial Code 12 NYCRR § 23-1.7(f), however, defendants established that no vertical passage as contemplated by that Code provision was required in this instance and plaintiff could not raise a triable issue of fact that one was required.
 Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed dismissal of the Labor Law § 200 and common-law negligence claims. It found that the raised flooring and protruding metal pedestal which allegedly caught plaintiff's foot and caused him to fall were not defects inherent in the property, but were created by the subcontractor's ongoing work and the manner in which it was performed. Further, defendants established that they did not exercise supervision and control over the injury-causing work.
Shawmut Woodworking & Supply, Inc. v Cord Contr. Co. Inc.
January 09, 2024
Appellate Division, First Department
Hard Rock leased the portion of the premises where the accident occurred from Paramount, the purported owner of 1501 Broadway, and operated a Hard Rock Café on the premises. Paramount conducted renovations at its premises, including relocating the primary entrance of Hard Rock from Broadway to West 43rd Street, and installation of an elevator and stairs. Paramount contracted with Shawmut to act as the general contractor, and with Levin to act as construction manager. Shawmut retained Cord and All-Safe as subcontractors on the project.
Plaintiff, a facility manager for Hard Rock, was walking in the project area in Hard Rock's premises when he tripped on plywood boards installed beneath scaffolding, which were allegedly not taped down or secured. The plywood boards were installed to protect the floor beneath the scaffolding during the renovation project. Cord installed the plywood boards and All-Safe erected the scaffolding in the area where plaintiff fell.
The trial court denied Cord's motion for summary judgment dismissing plaintiffs' negligence claim and Shawmut's third-party claims for contractual and common-law indemnification against it, granted Cord's motion to the extent of dismissing plaintiffs' Labor Law § 200 claim against it, granted defendants Shawmut, Paramount, and Levin's motion for summary judgment dismissing plaintiffs' negligence and Labor Law § 200 claims against them, and denied plaintiffs' motion for summary judgment as to liability on their negligence and Labor Law § 200 claims.
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department modified the trial court order and denied all parties’ motions for summary judgment as to the Labor Law § 200 and common-law negligence claims. As to the plaintiff’s motion, it found that plaintiff's testimony regarding whether he tripped on the edge of the plywood floor protection or on a mat laid on it was inconsistent and failed to demonstrate entitlement to judgment as a matter of law. Further, as to Paramount, Shawmut, and Levin, plaintiffs failed to establish that any defect in the plywood edge was visible, apparent, and existed for a sufficient length of time prior to the accident to permit defendants to discover and remedy it, since plaintiff and his coworker both testified that they passed by the location of the accident up to 100 times a day.
Paramount, Shawmut, and Levin's motion for summary judgment should have been denied, as they failed to submit evidence as to the last time the plywood was cleaned or inspected before the accident. They failed to prove that any defective condition of the plywood in question was latent, since a visual inspection of the plywood under the scaffolding, conducted daily, could have disclosed a defect, as the edge of the plywood was clearly visible. As for Levin, the record demonstrated that it may have owed plaintiff a duty of care as an agent of the owner. As for Cord, the Court found issues of fact concerning whether Cord created the condition for purposes of § 200 liability.
 Indemnity Issues in Labor Law (BFM)
The First Department affirmed the trial court’s decision to deny Cord summary judgment as to Shawmut’s contractual and common-law indemnification claims. The Court determined that the indemnity provision would potentially be triggered to the extent the plaintiff proved he tripped on the plywood that Cord installed, and not a mat. Under the terms of the indemnity provision, the Court noted that Cord may be required to provide indemnification even if it was not negligent. The Court further noted that the indemnity provision does not violate General Obligations Law § 5-322.1(1), “which allows contractual provisions requiring indemnification whether or not the promisor is partially negligent.” As for the common-law indemnification claim, the Court held it remains viable since there are questions of fact as to whether Shawmut’s liability to plaintiffs, if any, will only be vicarious.
Bucci v City of New York
January 11, 2024
Appellate Division, First Department
Plaintiff was aloft in a lift bucket tightening a newly installed steel cable wire, near public vehicular traffic on a roadway, when a moving truck struck the cable in an underpass area, causing the cable to “whiplash” and strike plaintiff. There were no flag people or barricades erected to control traffic in the work area. The trial court denied plaintiff's motion for partial summary judgment on his Labor Law §§ 240(1) and 241(6) claims against the City of New York and Hunts Point (“City/HP”), granted City/HP's motion for summary judgment dismissing the complaint and crossclaims against them and on their crossclaim against Verizon for indemnification, denied Haas defendants’ motion for summary judgment dismissing plaintiff's negligence per se claim against them and granted plaintiff's motion for partial summary judgment on the negligence per se claim against the Haas defendants premised on violations of Vehicle and Traffic Law §§ 1142(a) and 1172(a).
 Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s decision to dismiss the Labor Law § 240(1) claim because the clamp and the attached steel cable struck plaintiff when a moving truck snagged the strung cable, creating tension and built-up kinetic energy, and when the cable snapped it struck plaintiff’s arm and head in a horizontal sling-shot fashion. Thus, plaintiff’s injuries were not the result of the effects of gravity.
PRACTICE POINT: To recover under Labor Law § 240(1), the hazard to which plaintiff was exposed must have been one directly flowing from the application of the force of gravity to an object or person. In this case, the injury occurred after the sudden release of the cable when it snapped, and not because of the result of the effects of gravity.
Labor Law § 241(6) (TPW)
The First Department reversed the trial court’s decision and denied defendants’ motion for summary judgment dismissing plaintiff's Labor Law § 241(6) claim predicated on Industrial Code (12 NYCRR) § 23-1.29(a). The Court determined that § 1.29(a) was sufficiently specific and violated, and that this violation was a proximate cause of plaintiff's injuries. Thus, the Court also found that the trial court should have granted plaintiff's motion for partial summary judgment on the Labor Law § 241(6) claim.
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department modified the trial court’s decision and denied plaintiff’s motion for summary judgment on his negligence per se claim as against the Haas defendants predicated on violations of Vehicle and Traffic Law §§ 1142(a) and 1172(a). It held that the facts did not support a finding that plaintiff was within the class of persons to be protected where the Haas defendants' truck driver allegedly ran a stop sign just prior to the truck's snagging the cable. Further, even if the cited Vehicle and Traffic Law sections applied, there was evidence that comparative negligence was involved in the happening of the accident to warrant potential apportionment of liability. The Court noted, however, that plaintiff’s common-law negligence claim against the Haas defendants survived, and the record demonstrated issues of fact as to that claim.
Indemnity Issues in Labor Law (BFM)
The First Department held that the City/HP should not have been granted summary judgment on their crossclaim for indemnification from Verizon as there was no evidence to support a finding that the parties agreed to an indemnification arrangement. The Court also held that the City/HP was not entitled to dismissal of Haas’ contribution and common-law indemnification claims as it is not clear on the record that the potential liability of City/HP is only vicarious.
Castillo v TRM Contr. 626, LLC
January 11, 2024
Appellate Division, First Department
Plaintiff fell from an unsecured ladder, which was in a closed position, because he was unable to open it due to boxes obstructing the corner of the room where he was painting. The First Department previously held that plaintiff's summary judgment motion was not premature based on defendants' claim that they needed to depose the foreman, as they had not shown they had noticed or sought his deposition, and because it was unlikely that he would have relevant information (see Castillo v TRM Contr. 626, LLC). Our prior analysis can be read here. The trial court denied defendants' motion to renew plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim.
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed denial of defendants’ motion to renew as they failed to offer a valid excuse for not obtaining the foreman’s deposition sooner or show due diligence in attempting to obtain his deposition before plaintiff filed his motion. Even if considered, the Court determined the result is the same in that plaintiff established his entitlement to summary judgment based on his testimony and the affidavit of a coworker demonstrating that he fell from an unsecured ladder, in a closed position, because he was unable to open it due to boxes obstructing the corner of the room where he was painting. As for the foreman’s testimony, the Court held that he did not contradict plaintiff’s testimony that boxes in the corner where plaintiff was working prevented plaintiff from opening his ladder fully.
PRACTICE POINT: A motion for leave to renew must be based on new facts not offered on the prior motion that would change the prior determination or demonstrate that there has been a change in the law that would change the prior determination. The party seeking renewal must also provide a reasonable justification for the failure to present such facts on the prior motion. In this case, the renewal motion properly was denied, since defendants failed to offer a valid excuse for not obtaining the foreman’s deposition sooner, nor did they show that the foreman’s testimony would have rendered a different result on plaintiff’s motion for summary judgment.
Andino v Wizards Studios N. Inc.
January 18, 2024
Appellate Division, First Department
Plaintiff was a stagehand affixing decorative banners to a previously erected structure when he was injured. The trial court denied plaintiff's motion for partial summary judgment on her Labor Law §§ 240(1), and 241(6) claims against AT&T, Wizards, Mosaic, and for partial summary judgment on her Labor Law § 200 claim against Wizard and Mosaic, and granted Wizard, Mosaic, AT&T, and City of New York's motion to the extent of dismissing plaintiff's claims pursuant to Labor Law §§ 240(1) and 241(6), as well as denied KM's motion for summary judgment dismissing all third-party common-law claims against it.
Labor Law § 240(1) (MAS)
The First Department affirmed the trial court’s determination that the injury-producing work plaintiff was engaged in at the time of his accident did not trigger the protections of Labor Law §§ 240(1) or 241(6).
PRACTICE POINT: A fall off a ladder while setting up decorations, like changing a billboard’s appearance, is not a protected activity, where there is no evidence that any of the work “altered” or caused a significant physical change to the building or structure.
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department modified the order to grant defendants Wizard and Mosaic summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims. It held there was no evidence that Wizard or Mosaic actually exercised control over the means and methods of plaintiff's work.
Bradley v NYU Langone Hosps.
January 18, 2024
Appellate Division, First Department
Plaintiff was injured while working at a construction project when she slipped on a staircase that was wet from rain coming in through the opened roof. The trial court denied NYU Langone’s and Hunter’s motion for summary judgment dismissing plaintiff’s Labor Law §§ 241(6), 200, and common-law negligence claims and on their contractual indemnification claim against ASR, granted ASR's motion for summary judgment dismissing NYU Langone's contractual indemnification claim against it, and denied plaintiff's cross-motion for summary judgment on her Labor Law § 241(6) claim and dismissing NYU Langone and Hunter's comparative fault affirmative defense.
Labor Law § 241(6) (TPW)
The First Department affirmed that portion of the trial court’s decision denying the competing motions for summary judgment on the Labor Law § 241(6) claim predicated on a violation of Industrial Code 12 NYCRR § 23-1.7(d). That Code section provides that “[e]mployers shall not suffer or permit any employee to use a . . . passageway . . . which is in a slippery condition . . . . [W]ater . . . which may cause slippery footing shall be removed, . . . or covered to provide safe footing.” A “staircase used to provide access to a job site is not a passageway or other working surface within the meaning of the provision unless it is the sole means of access.”
The Court held that defendants failed to conclusively demonstrate there was another staircase that plaintiff could have used, and plaintiff failed to conclusively establish that the staircase she used was the only means of access to the second-floor work site. Accordingly, neither defendants nor plaintiff met their initial burden in support of their respective motions for summary judgment on the Labor Law § 241(6) claim.
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed denial of the defendants’ motion as to the common-law negligence and Labor Law § 200 claims. It held that they failed to establish that they neither created the dangerous condition nor had actual or constructive notice of the wet staircase. Further, their reliance on testimony that the staircase would not get wet because of its metal grate system preventing water from collecting was unavailing, as that testimony did not affirmatively demonstrate that the grate could not have been slippery during the heavy rain at the time of the accident.
The Court found, however, that plaintiff had demonstrated her entitlement to dismissal of the comparative fault affirmative defense by showing she was not at fault in connection with the accident, which occurred as she was walking up the stairs holding the handrail. In opposition, defendants offered only a speculative claim that she should have seen what was there to be seen.
Indemnity Issues in Labor Law (BFM)
The First Department reversed the trial court’s decision granting ASR’s motion for summary judgment dismissing NYU Langone’s contractual indemnification claim and affirmed the trial court’s decision denying NYU Langone’s and Hunter Roberts Construction Group’s motion for contractual indemnification against ASR.
The First Department held that ASR did not establish its entitlement to summary judgment dismissing defendant NYU Langone's claim for contractual indemnification. The contract between Hunter and ASR provided that “NYU Hospital Center” and its respective "parents," "affiliates," "joint venturers," and "anyone else acting for or on behalf of any of them" as well as "any other indemnitee required under the General Contract or others reasonably requested to be named." ASR failed to submit evidence to show that NYU Langone was not an indemnitee under the broad definition in the contract.
The First Department found that the trial court correctly held that NYU Langone and Hunter are not entitled to summary judgment on their contractual indemnification claims. NYU Langone failed to submit evidence establishing an intention to indemnify it from the agreement's language and purpose, and surrounding facts and circumstances. Regarding Hunter, there are triable issues of fact regarding whether Hunter was negligent in failing to ensure that the workers were covered by a roof during the rain, whether the staircase was wet at the time of the accident, and/or whether it had notice of the alleged dangerous condition.
Marte v Tishman Constr. Corp.
January 18, 2024
Appellate Division, First Department
Plaintiff's employer was installing rebar and pouring concrete when plaintiff slipped on the rebar mat and was injured. The trial court denied plaintiff's cross-motion for partial summary judgment on his Labor Law § 240(1) claim and for leave to amend the bill of particulars, denied defendants' motion for dismissal of plaintiff's Labor Law § 240(1) claim, and granted, in part, defendants' motion for summary judgment, by dismissing plaintiff's Labor Law §§ 241(6) and 200 claims,
Labor Law § 240(1) (MAS)
The First Department affirmed the trial court’s decision to deny summary judgment to all parties. Plaintiff testified that the gap below the rebar mat was four feet, though his brief before the Court accepted defendants’ contention that there was an 18-inch gap to the plywood form below. The First Department previously upheld a finding of liability in favor of a worker “carrying wood planks” when “he fell through an opening in a latticework rebar deck to a plywood form” 12 inches below; thus, the Court held that defendants failed to show that plaintiff “was not faced with the special elevation risks contemplated by the statute.” The Court further held that plaintiff failed to demonstrate his entitlement to summary judgment since there was testimony supporting defendants’ contention that the laying of rebar, in which plaintiff was engaged, was to be followed by the pouring of concrete, which would render placing plywood or wooden planks on top of that rebar impractical and contrary to the very work at hand, i.e., to cover the area where the concrete was being spread.
PRACTICE POINT: Defendant could not show that plaintiff was not faced with the special elevation risks contemplated by the statute by an 18-inch gap between the rebar mat and the plywood form below and thus, could not obtain summary judgment. Additionally, since there was testimony supporting defendants’ “integral to the work” defense, plaintiff also was unable to meet his burden of proof to obtain summary judgment.
Labor Law § 241(6) (TPW)
The First Department modified the below decision and granted plaintiff leave to amend the bill of particulars to add a violation of Industrial Code 12 NYCRR § 23-1.22(c)(1) in light of the absence of any prejudice to the defendants and potential applicability of the Code section to the underlying facts.
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed dismissal of the common-law negligence and Labor Law § 200 claims. With regard to the owner-defendant, there was no evidence it had any workers or representatives on site who could control the means and methods of plaintiff's work, create a hazardous condition, receive actual notice of a dangerous condition, or conduct any inspections that would uncover a condition sufficient to impute constructive notice. As for Tishman, the construction manager, there was no evidence that it created any hazardous condition regarding the rebar mat on which plaintiff slipped, since plaintiff's employer was installing the rebar and pouring concrete. Tishman had no actual notice of a dangerous condition, as all the witnesses testified that no one had complained about the condition of the rebar. Finally, there was no evidence that Tishman had constructive notice of any defect, as plaintiff testified that there was no debris on the rebar, and it was stable and did not move when he stepped on it.
Maldonado v Hines 1045 Ave. of the Ams. Invs. LLC
January 30, 2024
Appellate Division, First Department
Plaintiff, a welder, tripped over electrical conduit piping that rose vertically five to twelve inches in height from the floor surface in the lobby of a new building under construction. The trial court granted the motion of Hines 1045 Avenue and Turner Construction for summary judgment dismissing plaintiff's Labor Law § 241(6) claim and denied their motion for summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims.
Labor Law § 241(6) (TPW)
The First Department affirmed that portion of the trial court’s decision relating to plaintiff's Labor Law § 241(6) claim predicated on Industrial Code (12 NYCRR) § 23-1.7(e)(2). Defendants established that the protruding conduit upon which plaintiff fell was integral to the work being performed, namely, the installation of turnstiles in the lobby. In opposition, the Court held that plaintiffs failed to raise a triable issue.
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed denial of defendants’ motion to dismiss the common-law negligence and Labor Law § 200 claims. In what should have been a “dangerous condition” case, but which was decided as a “means and methods” case, the Court found that neither defendant Turner, the general contractor, nor defendant Hines, the owner, demonstrated that they lacked authority or supervision over the electrical contractor's injury-producing work. There was no discussion in the decision of whether the protruding conduits constituted a dangerous condition for the purposes of these claims.
Ochoa v JEM Real Estate Co., LLC
January 17, 2024
Appellate Division, Second Department
Plaintiff was injured when he fell from an A-frame ladder at a building owned by JEM Real Estate and leased by Bobwhite Counter. At the time of the accident, plaintiff and his coworker were attempting to install an aluminum sign above a commercial storefront, after modifying an existing metal frame to fit the new sign. The trial court granted plaintiff's motion for summary judgment on the Labor Law § 240(1) claim and denied defendants' cross-motion to dismiss the Labor Law §§ 240(1) and 241(6) claims.
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s decision to grant summary judgment to plaintiff and to deny defendants’ cross-motion, because plaintiff established that the ladder was defective and inadequately secured in violation of § 240(1), and that these failures were a proximate cause of his injuries. Contrary to defendants’ contention, the Court also held that plaintiff established he sustained injuries while altering a structure and that defendants failed to raise a triable issue of fact.
PRACTICE POINT: A fall from an unsecured ladder that causes an injury almost always will result in a finding that § 240(1) was violated and that the violation was a proximate cause of plaintiff’s injuries. The statute also will apply where a plaintiff is injured during his or her attempt to prevent a fall from a ladder.
Labor Law § 241(6) (TPW)
The Second Department affirmed that portion of the trial court’s decision which denied defendants’ cross-motion for summary judgment seeking dismissal of the Labor Law § 241(6) claim. To sustain a cause of action pursuant to Labor Law § 241(6), a plaintiff must demonstrate that his or her injuries were proximately caused by a violation of an Industrial Code regulation that is applicable to the circumstances of the accident. The Court held that defendants failed to eliminate triable issues of fact as to whether they violated 12 NYCRR §§ 23-1.16(b) and 23-1.21(b)(3)(iv) and (e)(3) and whether such violations were a proximate cause of the accident. Moreover, defendants were unable to establish plaintiff's actions were the sole proximate cause of his injuries.
Kyung Hee Moon v Owadeyah
January 24, 2024
Appellate Division, Second Department
Ssang Jun Ma, a brick layer employed by the third-party defendants, was injured when a scaffold, on which he was walking, collapsed, while working on a construction project at premises owned by the Rahmani defendants. Ssang Jun Ma, by his guardian, and Kyung Hee Moon, suing derivatively, alleged violations of Labor Law §§ 240(1), 241(6), 200 and common-law negligence, against, Kensington Homes, the general contractor on the project, and Herzel Owadeyah, a principal of Kensington Homes.
The trial court denied Ssang Jun Ma’s and Kyung Hee Moon’s cross-motion for leave to amend the complaint and granted the motion of Owadeyah and Kensington Homes for summary judgment dismissing the complaint against Owadeyah. Ssang Jun Ma subsequently died, and Kyung Hee Moon, as administrator of the estate of Ssang Jun Ma, was substituted for the deceased appellant.
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s determination that the proposed amended complaint was palpably insufficient or patently devoid of merit because it failed to allege facts sufficient to hold Owadeyah personally liable under a theory of piercing the corporate veil. The proposed amendments failed to adequately allege that Owadeyah abused the privilege of doing business in the corporate form in such a manner as to cause injury to Ssang Jun Ma and Kyung Hee Moon.
The Court also affirmed summary judgment in favor of Owadeyah and Kensington Homes dismissing the complaint against Owadeyah as Owadeyah could not be held liable for the obligations of Kensington Homes under a theory of piercing the corporate veil. In opposition, the Court also held that Ssang Jun Ma and Kyung Hee Moon failed to raise a triable issue of fact.
PRACTICE POINT: For a plaintiff to state a viable claim against a shareholder of a corporation, in his or her individual capacity, for actions purportedly taken on behalf of the corporation, plaintiff must allege facts that, if proven, indicate that the shareholder exercised complete domination and control over the corporation and abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice. While complete domination of the corporation is the key to piercing the corporate veil, especially when the owners use the corporation as a mere device to further their personal (rather than corporate) business, such domination, standing alone, is not enough; some showing of intent to commit a wrongful or unjust act against the plaintiff is required.
Argueta v City of New York
January 31, 2024
Appellate Division, Second Department
Plaintiff was injured while working at a school construction project in Queens, when a tile shard hit him in the right eye as he was disposing of refuse by placing it into a dumpster. The trial court granted defendants’ motion to dismiss the complaint alleging violations of Labor Law §§ 241(6), 200, and common-law negligence.
Labor Law § 241(6) (TPW)
The Second Department reversed the trial court’s decision and reinstated plaintiff’s Labor Law § 241(6) claim. Plaintiff’s Labor Law § 241(6) claim was predicated on an alleged violation of 12 NYCRR § 23-1.8(a), which provides that “[a]pproved eye protection equipment suitable for the hazard involved shall be provided for and shall be used by all persons while employed in... any other operation which may endanger the eyes.” Documentary evidence submitted in support of defendants’ motion raised questions of fact as to whether plaintiff was provided with approved eye protection equipment by his employer, whether he was wearing personally provided eye protection equipment, and, if so, whether he removed his eye protection prior to the accident. The Court held that defendants' submissions failed to eliminate all triable issues of fact, necessitating the denial of that branch of defendants' motion, regardless of the sufficiency of the opposing papers.
Labor Law § 200 and Common-Law Negligence (ESB)
The Second Department affirmed dismissal of the Labor Law § 200 and common-law negligence claims. In this “means and methods” case, defendants were entitled to summary judgment because they established that they did not have the authority to supervise or control the method or manner in which plaintiff's work was performed.
Wheat v Town of Forestburgh
January 25, 2024
Appellate Division, Third Department
Plaintiff was hired by Joseph A. Ruggeri Jr., defendant's highway superintendent, to repair damage to a salt shed located at the Highway Department. It was agreed that work would commence on February 4, 2021. On February 3, 2021, Wheat contacted Ruggeri to ask whether he could have a rented Genie lift delivered that afternoon and whether he could drop off his equipment trailer. That evening, after dropping off the trailer, Wheat utilized the lift to take measurements of the shed so he could purchase materials needed for the repair. After completing his measurements, he was driving the lift to park next to the side of the shed so that it was out of the way in the event trucks came in overnight needing salt. While doing so, he drove the lift off the edge of a loading dock that is elevated 40 inches above the ground below and was thrown off the lift.
The trial court partially denied defendant's motion for summary judgment seeking dismissal of the complaint, and denied plaintiffs' cross-motion for partial summary judgment on his Labor Law §§ 240(1) and 241(6) claims.
Labor Law § 240(1) (MAS)
The Third Department affirmed denial of both motions, finding a question of fact as to whether plaintiff was a statutory employee entitled to the protection under Labor Law § 240(1), given that it was agreed by the parties that the repair work would not commence until the day after he was injured.
The Court also held that defendant met its burden and rebutted plaintiff’s prima facie showing by raising questions of fact, precluding summary judgment. Plaintiff testified that he drove the lift off the loading dock because he was unable to see the edge of the dock that was elevated above the ground and his expert determined that the lack of safety measures taken, or protections put into place, to address the inherent hazard posed by the difference in elevation of the loading dock was the proximate cause.
Defendant submitted proof that plaintiff did not have permission to take measurements or commence work, and plaintiff did not specifically inspect the area where he drove the lift. Plaintiff also testified that, although it was dark, the remaining daylight combined with lighting on the interior and exterior of the shed was sufficient for him to see and there was a plowed path going to the area where he was going to park the lift. Defendant’s expert averred that there were markings that outlined the loading dock area along with a vertical pillar partially painted in red and that the color and textures of the surface of the loading dock are distinct from the dirt and gravel road below it.
PRACTICE POINT: To prevail on a motion for summary judgment under Labor Law § 240(1), plaintiff must show that the statute was violated, and that the violation proximately caused his or her injury. A defendant can, however, raise a factual issue by presenting evidence that the device furnished was adequately and properly placed and that plaintiff’s conduct may be the sole proximate cause of his or her injuries. Here, the Court was unpersuaded by defendant’s argument that the statute did not apply because plaintiff had completed taking measurements and was merely moving the lift elsewhere on the worksite. This distinction, it held, based on rigid definitions of what it means to be “on the job” or “on a job site” ignores the reality of what construction workers employed on projects face.
Additionally, the Court rejected defendant’s argument that plaintiff’s failure to inspect the area was the sole proximate cause of his injuries, because this argument merely raised a question as to plaintiff’s comparative negligence, which, as our readers know, is not a defense to liability under § 240(1).
Labor Law § 241(6) (TPW)
By not addressing the trial court's dismissal of their Labor Law § 241(6) claim on appeal, plaintiffs were deemed to have abandoned the issue.
Labor Law § 200 and Common-Law Negligence (ESB)
The Third Department affirmed denial of defendant’s motion as to common-law negligence. In this “dangerous condition” case, the Court found that defendant's submissions demonstrated the loading dock existed in an allegedly dangerous condition for a length of time prior to plaintiff's accident; therefore, defendant failed to establish that it did not have constructive notice of the allegedly dangerous condition. Further, the Court held that whether the loading dock constituted a dangerous condition was a question for a jury, given that there was not only a single inference that could be drawn from the undisputed facts.
 New York Industrial Code Regulations (EDA)
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Note from David R. Adams:
