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Volume XIII, No. 5
Wednesday, April 3, 2024
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 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.
Happy April and spring is in the air. Here in Buffalo, we are bracing for the onslaught of eclipse watchers with estimates that our population will double next Monday when we are in the path of the full solar eclipse. A perfect day to avoid going anywhere, and we will have our entire office working remotely as they estimate traffic jams to last many hours. It should be very cool—the last total eclipse here was in 1925.
My thoughts, as the eclipse approaches, are of Mark Twain’s A Connecticut Yankee in King Arthur’s Court, an all-time favorite of mine. In this classic, Hank was struck in the head “during a misunderstanding conducted with crowbars” and woke up having somehow traveled to the time and place of King Arthur’s court in Camelot. He escapes danger by claiming to be a great magician by blocking out the sun (knowing the date of the eclipse by the way, not actually by magic in case you wondered), usurping Merlin and he becoming “The Boss”. Great book and a quick read.
Some cases settle, but there always has to be the understanding out there that we are always willing to try a case. To that end, Marc Schulz had a no-cause in a Labor Law trial this month. Congratulations to Marc and the Labor Law Team I support.
On to more important issues, namely using silly pictures and videos to teach about New York Labor Law. We try and insert a basic principle of the law into each one to reinforce common themes in the cases, and have some fun doing it.
In our first picture of the month, we have a worker who had completed an OSHA construction course and was employed by a contractor which was hired by the owner of an apartment building to repair crumbling concrete on a second-floor balcony. He was sent to the job site with a truck equipped with a ladder and various tools; the ladder can be seen on the ground in the photo. The soon-to-be plaintiff, in a nostalgic mood, had binged episodes of MacGyver the night before and recalled him building his own ladder to escape from a quickly rising vat of acid so, rather than utilize the supplied ladder, he thought it would be cool to build his own ladder as he went. Totally unexpectedly, the ladder he was building as he climbed up fell apart causing the plaintiff to fall to the ground and sustain injury. § 240(1)?
Plaintiff has a prima facie case for § 240(1)—he is a person so employed, the property owner is a proper defendant, the overall project would be covered by the statute as either repair or construction and the plaintiff was injured by an elevation differential and the effects of the force of gravity. The defendant will argue sole proximate cause, as the plaintiff was 1) provided an appropriate safety device which was 2) available to him that 3) he had been instructed to use (recall that he had taken an OSHA certified course) which he 4) failed to use or misused 5) for no good reason. All elements are met and thus the result should be summary judgment for the defendant. For those who were wondering, no, a MacGyver fixation definitely does not qualify as a good reason not to use the appropriate and available safety device.
In our next offering, we have a tenant of an apartment building that was offered a month rent free by his landlord if he painted the building. The plaintiff, unable to find a ladder tall enough, took it upon himself to use a length of rope, a plank, and his cousin as a counterweight to reach the outer wall and paint it. When his cousin got up to go and charge his phone, the plaintiff fell to the ground below and was injured. § 240(1)?
Well, the property owner is a valid defendant, the project, painting, is a protected activity under the statute, plaintiff was injured by a height differential and the application of the force of gravity. A question to be addressed is whether the plaintiff, who was being given a free month of rent, would be considered a “person so employed” by the statute when he was not actually working for a wage, but rather for a reduction in his rent. We will leave this question open and hope to hear the opinions of our readers. Tune in next month for our answer.
In our third photo, the plaintiff works for a company hired to spray for ants once a month at an apartment complex. The plaintiff devised an ingenious attachment to his ladder allowing him to spray from the outside of the walkway and thus do the job faster. He added wooden forms that were attached to the legs of the ladder and hooked over the edge of the walkway. His co-worker used one of the many folding ladders they had in the truck, as seen on the walkway. He was not as fast, but he is also not now known as "plaintiff." It is important to note that the boss paid the plaintiff more because he could get more work done in a day and was considering trying to make several more of the ladder devices to increase the speed of his entire staff. This contraption, of his own design and construction, had worked perfectly for him for months, until one day, when the duct tape he had used to attach the form to the ladder leg wore out, and the plaintiff fell and was injured. § 240(1)?
Here we have a plaintiff who was so employed, a commercial property owner who is a valid defendant, a plaintiff who was injured by the effects of gravity and a height differential. There is no sole proximate cause defense here given that, while some of the criteria are met, there is an appropriate safety device, available to the plaintiff, which he failed to use, the fact that the plaintiff’s employer knew he was using his ladder attachment and allowed him to continue to use it, it cannot be said that he was instructed to use a different safety device and his employer had condoned this exact behavior. That said, it is still not a § 240(1) case. The project the plaintiff is undertaking, spraying for ants, is routine maintenance and not a qualifying activity. Summary judgment for the defendant on § 240(1).
In our final photo for the month, we have an iron worker who, while working on the construction of a new office building, needs to relieve himself. Rather than walk the 50 feet to the porta potty on the next floor, a location he could reach without unhooking his lanyard, he decides to “make it rain” on the pedestrians below. Losing his balance he falls, fortunately only to the next floor down, and is injured. § 240(1)?
In this case, the plaintiff is engaged in construction, a protected activity, he is a person so employed and thus a proper plaintiff, the building owner and various contractors are appropriate defendants, and the injury was caused by a height differential and the force of gravity. The issue for the plaintiff is that at the time of the injury, he had unhooked his lanyard and thus failed to use an appropriate and available safety device he knew he was expected to use and had done so for no good reason. Should be summary judgment for the defendant.
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.
-David
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.
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Plaintiff, an employee of PIMC, was directed by his supervisor to help unload a delivery from a PIMC box truck. The truck was parked in a barricaded area on First Avenue set up by Ryder as the delivery zone. As plaintiff stood directly behind the truck in the delivery zone to assist in unloading the piping, he was struck in the head by a falling brick. Ryder admitted the work being performed on the exterior scaffold at the time of the accident could have resulted in brick debris falling from the building. It was uncontested that there was no horizontal netting under the exterior scaffold, and no overhead netting and/or other protection in the delivery zone, to protect against any debris falling from the exterior scaffold.
The trial court denied plaintiff's summary judgment motion under Labor Law § 240(1), denied 1711 LLC and Ryder's summary judgment motion dismissing the Labor Law §§ 240(1) and 241(6) claims against them and the Labor Law § 200 claim against Ryder and on their contractual indemnification claim against PIMC” denied PIMC's cross-motion for summary judgment dismissing the § 240(1) claim and the third-party complaint against it, denied Pioneer's summary judgment motion on its indemnification claim against V&P Altitude, and denied Construction Realty's motion for summary judgment dismissing the third third-party complaint.
 Labor Law § 240(1) (MAS)
The First Department reversed the trial court’s decision and granted plaintiff’s motion. It is settled law that a plaintiff is entitled to partial summary judgment on liability in a “falling object” case where, as here, he demonstrates that he was struck by a falling object, that such object required securing for purposes of the undertaking, and that the lack of adequate overhead protection failed to shield him against the falling of such object, and, therefore proximately caused plaintiff’s injuries.
Contrary to defendants’ argument, a plaintiff’s burden of proof is not dependent on whether he observed the object that hit him because a plaintiff is not required to show the exact circumstances under which the object fell, where a lack of protective devices proximately caused the injuries.
The Court further held that due to the damage to plaintiff’s hard hat and resulting injuries from the falling brick, no issue of fact exists as to whether the distance the brick fell was de minimus, and that the harm to plaintiff was the direct consequence of the application of the force of gravity upon the brick, whose weight, and force generated by its fall were sufficient to cause such injuries.
PRACTICE POINT: The single decisive question as to whether Labor Law 240(1) applies to a particular accident is whether plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against harm directly flowing from the application of the force of gravity to an object or person. In the context of “falling objects” cases, the risk to be guarded against is the unchecked or insufficiently checked descent of the object. In this case, there were no safety devices to shield against any debris falling from the exterior scaffold directly above the delivery zone, such as the falling brick that struck plaintiff in the head.
 Labor Law § 241(6) (TPW)
The First Department reversed the trial court’s decision and determined that defendants established entitlement to dismissal of the Labor Law § 241(6) claim. Specifically, Industrial Code §§ 23-1.7(a) and 23-2.6 did not apply because there was no evidence that the area where plaintiff was working was normally exposed to falling objects or that the work being done on the building involved the construction of exterior masonry walls. Defendants further established they did not violate Industrial Code § 23-1.18 concerning sidewalk sheds because it was established that a shed was erected on the sidewalk, and they were not required to erect a sidewalk shed in the roadway.
 Labor Law § 200 and Common-Law Negligence (EDA)
The First Department found that plaintiff failed to raise an issue of fact as to whether Ryder had supervisory control over V&P and Bunlin's work that may have generated the debris that struck plaintiff. The Court also held that Ryder's status as general contractor on the project was insufficient to establish Labor Law § 200 liability because site safety or general supervisory authority, without more, is insufficient to impose liability under § 200 and common-law negligence.
 Indemnity Issues in Labor Law (AMC)
Regarding 1711’s and Ryder’s motions for summary judgment, the First Department held that they were entitled to conditional summary judgment on the contractual indemnification claim against PIMC. The broad indemnification provision in PIMC’s contract states that PIMC will defend and indemnify 1711 and Ryder against all injuries “arising out of or resulting from [PIMC’s} performance of the Work”, except where 1711 and/or Ryder were negligent.
Regarding CRSG, the site safety manager, the First Department held that it was entitled to summary judgment dismissing 1711’s and Ryder’s claims. The Court held that CRSG has site safety or general supervisory authority, without more, is insufficient to impose liability under § 200 of the NYS Labor Law, or common-law negligence liability.
Finally, regarding Pioneer’s motion for summary judgment seeking contractual indemnification against V&P, the First Department upheld the lower Court’s denial. The First Department held that there were triable issues of fact as to how and whose work caused the brick to fall and hit plaintiff.
Plaintiff's supervisor instructed him to use a chipping hammer weighing 70 to 100 pounds to break up bricks on top of a wall as part of the demolition of a building. Plaintiff initially performed this work while standing on a scaffold platform, but he complained to his supervisor that he was unable to perform the work in a comfortable or safe manner because the top of the wall was so far above the scaffold platform that he could not apply sufficient force to the bricks. The supervisor rejected plaintiff's request to raise the scaffold, instead telling plaintiff to finish the work while standing on top of the wall. Plaintiff testified that his use of the chipping hammer, while standing on top of the wall, created vibrations that caused him to slip and fall.
The trial court granted plaintiff's summary judgment motion under Labor Law § 240(1) and the Labor Law § 241(6) claim as based on a violation of Industrial Code (12 NYCRR) § 23-3.3(b)(4) against Flintlock. The trial court also denied Flintlock's summary judgment motion on its contractual indemnification claim against Sky.
Labor Law § 240(1) (MAS)
The First Department affirmed the trial court's determination that plaintiff’s testimony established his entitled to partial summary judgment on the issue of defendant’s liability under Labor Law § 240(1). Any negligence by plaintiff cannot be deemed the sole cause of his accident because his conduct of performing the work while standing on top of the wall was consistent with his employer’s instructions.
PRACTICE POINT: Plaintiff’s testimony in this case is sufficient to establish that defendants failed to provide him with an adequate safety device under Labor Law § 240(1) and that their failure proximately caused his injuries. Where, as here, plaintiff’s negligence is, at most, only a concurrent cause of the accident, it is not a defense to liability under Labor Law § 240(1) and will not defeat plaintiff’s motion.
Labor Law § 241(6) (TPW)
Since the trial court properly granted plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim, defendant’s arguments regarding plaintiff's Labor Law § 241(6) claim predicated on Industrial Code § 23-3.3(b)(4) were determined to be academic.
Indemnity Issues in Labor Law (AMC)
The First Department overturned the lower Court’s decision denying Flintlock’s motion for summary judgment seeking contractual indemnification from Sky Materials Corp. The First Department held that there was no question of fact as to whether the contract between Flintlock and Sky Materials was in effect, on the date of loss, as Sky admitted in a Notice to Admit that it was. Additionally, the contract’s broad indemnification provision was triggered.
Plaintiff was injured while standing on a ladder using a grinder to cut a metal plate at chest height. As plaintiff worked, the grinder began shaking and kicked back, striking his face. Although the ladder moved after the grinder malfunctioned, it did not fall or collapse, nor did plaintiff fall from the ladder because he held on to a wooden beam and his coworkers then held the ladder and helped him down. The trial court granted defendants' summary judgment motion dismissing the Labor Law §§ 240(1) and 241(6) claims and denied plaintiff's motion for partial summary judgment on liability
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s decision because defendants’ evidence demonstrated that plaintiff’s injury was caused by the grinder, and he did not fall from the ladder. Because plaintiff’s injury did not arise from any elevation-related risk presented by the ladder, Labor Law § 240(1) does not apply.
PRACTICE POINT: Plaintiff neither fell, nor was hit by an object that was presently involved in the job and that was being hoisted or was improperly secured and Labor Law § 240(1) was not intended to apply to the “usual and ordinary dangers at a construction site”, such as being injured while using a grinder to cut a metal plate at chest height. If plaintiff had sustained an injury to his shoulder while preventing himself from falling to the ground, then such a fall would qualify under § 240(1).
Labor Law § 241(6) (TPW)
The First Department unanimously reversed the trial court’s decision and denied defendants' motion to dismiss the Labor Law § 241(6) claim insofar as it was predicated on a violation of Industrial Code (12 NYCRR) § 23-1.5(c)(3) which addresses the condition of equipment and safeguards and requires “[a]ll safety devices, safeguards and equipment in use shall be kept sound and operable, and shall be immediately repaired or restored or immediately removed from the job site if damaged.” First and foremost, the court concluded that § 23-1.5(c)(3) was a sufficiently specific safety standard to support a Labor Law § 241(6) claim. Moreover, the testimony established that plaintiff's grinder had no guard, thus violating the mandate of the regulation. Plaintiff also established that defendants had notice of a defect in the grinder, as he testified that he complained to his supervisor that the grinder shook and lacked a guard. Finally, the owner and general contractor bear the ultimate responsibility for safety practices at a construction site even where they do not control or supervise the worksite.
MMLI/Capital, as property owner and general contractor, hired subcontractor Tolmac to do sheetrock, taping, and compound work in residential apartments that were under renovation in MMLI's building. Plaintiff, a Tolmac employee, was injured when he fell from the top of stacked, empty compound buckets that he was standing on to perform taping and compound work in the upper areas of an apartment unit's walls. The trial court granted plaintiff's summary judgment motion under Labor Law § 240(1) against MMLI/Capital, denied MMLI/Capital's summary judgment motion dismissing the Labor Law § 200 and common law negligence claims, and denied Tolmac's summary judgment motion seeking dismissal of all claims against it.
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court's decision to grant plaintiff summary judgment because he established that MMLI/Capital violated Labor Law § 240(1) by not providing him with an adequate safety device (i.e., a ladder) to perform his work. The Court further held that defendants failed to raise a triable issue as to whether plaintiff, for no good reason, chose not to retrieve an available ladder. Plaintiff testified he looked for an available ladder but could not find one, and prior to his accident he had twice asked his Tolmac foreman for a ladder and the foreman assured plaintiff he would bring him one, but he never did. That the foreman testified he could not recall such a conversation fails to raise a triable issue as to whether plaintiff, in fact, made such a request to the foreman.
Defendants’ deposition witnesses, including Tolmac’s foreman, failed to offer testimony that would rebut plaintiff’s testimony, and, as such, any failure on the part of plaintiff to obtain a ladder was as much due to an omission by Tolmac’s foreman as any failure on plaintiff’s part to track down an available ladder. Thus, plaintiff’ s conduct in not retrieving a ladder himself was not the sole proximate cause of the accident.
PRACTICE POINT: To defeat summary judgment based on the sole proximate defense, a defendant must establish that (1) plaintiff had adequate safety devices available, (2) that he or she was aware of that availability and the expectation that he or she would use them, (3) that for no good reason he or she chose not to or misused the appropriate safety device, and (4) had he or she not made that choice, then the accident would not have occurred. In this case, defendants could not prove that plaintiff, for no good reason, chose not to retrieve an available ladder. Remember that all four prongs of the defense must be established, or it is unavailable.
Labor Law § 200 and Common-Law Negligence (EDA)
The First Department reversed the trial court’s finding that it should have dismissed plaintiff's common law negligence and Labor Law § 200 claims as abandoned against MMLI/Capital and Tolmac because plaintiff expressly opted not to oppose their dismissal on summary judgment.
Indemnity Issues in Labor Law (AMC)
The First Department affirmed the lower Court’s decision denying defendant/second third-party defendant’s, Tolmac Contracting Inc.’s, motion seeking to dismiss all claims.
Plaintiff was injured while working in an elevator shaft when a 150-pound formwork panel fell four feet onto his right knee as his coworkers attempted to manually hand up the panel to an overhead suspended scaffold. The trial court denied plaintiff's motion for summary judgment on his Labor Law § 240(1) claim and granted Turner's summary judgment motion dismissing the Labor Law § 200 and common-law negligence claims.
Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court's determination and granted plaintiff’s motion. His evidence established that he was injured by a falling object that should have been secured by a safety device contemplated by the statute. The Court also held that defendants failed to rebut this showing and their expert’s affidavit failed to raise a triable issue due to the lack of factual support underlying his opinion.
PRACTICE POINT: It is undisputed that no lifting devices contemplated by Labor Law 240(1) were available at the job site and plaintiff’s injuries flowed “directly from the application of the force of gravity to the object” (see Runner v New York Stock Exch. Inc., 13 NY3d 599, 604 [2009]) as he and his co-workers attempted to lift the panel to an overhead suspended scaffold, which is clearly the kind of harm the statute was designed to protect against.
Labor Law § 200 and Common-Law Negligence (EDA)
The First Department affirmed the trial court’s decision, finding it properly dismissed plaintiff's Labor Law § 200 and common-law negligence claims against the general contractor. Plaintiff's accident arose from the means and methods of the work, which were directed and controlled by his employer. The Court found that the general supervisory powers conferred on the general contractor by its agreement with the property owner were insufficient to support such claims against the general contractor.
Plaintiff fell from an unsecured 12-foot A-frame ladder that suddenly moved as he was reaching overhead to plaster the ceiling. The trial court granted plaintiff's motion for summary judgment on his Labor Law § 240 (1) claim against defendant.
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court's decision. Plaintiff’s proof, including an expert affidavit, showed he fell from an unsecured 12-foot A-frame ladder that suddenly moved as he was reaching overhead to plaster the ceiling. In opposition, the Court held that defendant failed to raise an issue of fact as to whether plaintiff was the sole proximate cause of the accident. Defendant’s evidence as to whether plaintiff was reaching towards the ceiling while on the ladder instead of repositioning it and whether the ladder was too short consisted solely of inadmissible hearsay.
PRACTICE POINT: It is irrelevant that plaintiff inspected the ladder and found it to be in good order before using it, as plaintiff is not required to demonstrate that the ladder was defective to be entitled to summary judgment under Labor Law 240(1). Regardless, even if plaintiff placed the ladder in a position where he had to reach when plastering the ceiling, this at most established comparative negligence, which is not an available defense under Labor Law 240(1). Hearsay may only be considered in opposition to a summary judgment motion if it is not the only evidence on which the opposition is predicated, which was not the situation in this case.
Plaintiff was allegedly injured while working as a drill blaster at an excavation site when he was struck by an excavator machine. The trial court granted Mayrich Construction's motion for summary judgment dismissing plaintiff's claim pursuant to Labor Law § 241(6) predicated on a violation of Industrial Code (12 NYCRR) § 23-4.2(k).
Labor Law § 241(6) (TPW)
The First Department unanimously affirmed the trial court’s decision, which granted third-party defendant's motion for summary judgment dismissing plaintiff's claim pursuant to Labor Law § 241(6) predicated on Industrial Code (12 NYCRR) § 23-4.2(k). Plaintiff alleged that he was injured while working as a drill blaster at an excavation site when he was struck by an excavator machine and raised a Labor Law § 241(6) claim predicated on violation of Industrial Code § 23-4.2(k), which states that "[p]ersons shall not be suffered or permitted to work in any area where they may be struck or endangered by any excavation equipment or by any material being dislodged or falling from such equipment." The Court reiterated the positions of the First, Third and Fourth Departments that Industrial Code § 23-4.2(k) is insufficiently specific to support a Labor Law § 241(6) claim and in doing so, declined to adopt the Second Department's contrary view.
Plaintiff was injured when he fell from a ladder while working at the one-family home of Jack Chiang Min Yung and Tzufen Chiang Chen. According to plaintiff, Jack Chiang Min Yung, himself, positioned the unsecured A-frame ladder on an exterior deck and instructed plaintiff to climb it to address an apparent leak in a second-floor bathroom. The trial court denied defendants' motion for summary judgment dismissing the Labor Law §§ 240(1), 200, and common-law negligence claims against Jack Chiang Min Yung.
Labor Law § 240(1) (MAS)
The First Department affirmed the trial court’s decision because defendants’ submissions failed to demonstrate that plaintiff’s activity was not performed as part of the larger renovation project and thus falls outside the reach of Labor Law § 240(1). Additionally, the Court held that defendants also failed to establish that Jack Chiang Min Yung did not direct or control plaintiff’s injury-producing work.
PRACTICE POINT: Owners of one- or two-family dwellings are exempt from liability under Labor Law § 240(1) unless they directed or controlled the work being performed. The homeowner's exemption was enacted to protect those who, lacking business sophistication, would not know or anticipate the need to obtain insurance to cover them against absolute liability. The phase “direct or control” as used in the statute is construed strictly and refers to the situation where the owner supervises the method and manner of the work, such as in this case.
Labor Law § 200 and Common-Law Negligence (EDA)
The Second Department affirmed the trial court’s decision to deny defendants’ summary judgment motion dismissing the Labor Law § 200 and common-law negligence claims against Jack Chiang Min Yung. It found that defendants failed to show that Jack Chiang Min Yung lacked the authority to supervise or control the performance of plaintiff's work as a matter of law, without considering the sufficiency of plaintiff’s opposition.
In May 2017, plaintiff was injured when he fell from a ladder while performing work on defendants' home located in Long Beach. In or around July 2019, plaintiff commenced an action to recover damages for personal injuries against defendants, who had since relocated to Washington State. Plaintiff voluntarily discontinued that action because he was unable to effectuate service upon defendants. In May 2020, he commenced this action against defendants alleging violations of the Labor Law and common-law negligence. The trial court denied the motion of defendants pursuant to CPLR § 3211(a)(8) to dismiss the complaint and granted plaintiff’s cross-motion pursuant to CPLR § 306-b to extend the time to serve defendants with the summons and complaint.
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s decision because plaintiff’s submission, which included affidavits of attempted service and evidence of various inquiries and record searches, demonstrated his substantial efforts to locate and serve defendants. Plaintiff also established the requisite reasonable diligence to warrant an extension of time to serve defendants for good cause as well as the existence of potentially meritorious Labor Law claims and that defendants’ lacked prejudice.
PRACTICE POINT: CPLR § 306-b provides that service of the summons and complaint shall be made within 120 days (about 4 months) after the commencement of the action. If service is not made to a defendant within that time, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or on good cause shown or in the interest of justice, extend the time for service. Good cause and interest of justice are two separate and independent statutory standards. To establish a good cause, a plaintiff must demonstrate reasonable diligence in attempting service. If good cause is not shown, courts must consider the boarder interest of justice standard. In considering the interest of justice standard, the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the statute of limitations, the meritorious nature of the claim, the length of delay in service, the promptness of a plaintiff’s request for the extension of time, and prejudice to defendant. Here, plaintiff established good cause for the court to extend the time for plaintiff to serve defendants.
Plaintiff was injured while working on a construction site at premises owned by Site 5 when an outward swinging access gate in the perimeter fencing swung open and hit him, causing him to fall. Site 5 hired Northeast to install perimeter fencing and access gates at the construction site. At the time of the accident, Essex Crossing, the general contractor on the construction project, employed plaintiff as a superintendent. The trial court denied defendant's motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims and all crossclaims against it.
Labor Law § 200 and Common-Law Negligence (EDA)
The Second Department affirmed the trial court’s finding that Northeast failed to establish its entitlement to judgment dismissing the Labor Law § 200 and common-law negligence claims. The Court held Northeast established that it did not have the authority to supervise or control the means and method of plaintiff’s work; however, Northeast failed to demonstrate that it did not create the alleged dangerous condition by installing an outward swinging gate in the perimeter fencing that injured plaintiff. The Court further held that Northeast's conclusory assertion that another contractor could have installed the swinging gate after Northeast left the construction site was insufficient to meet its burden on its motion for summary judgment.
Plaintiff, employed as a journeyman lineman by Haugland, was injured in an explosion while working on electrical lines from the aerial bucket of a truck. At the time of the accident, plaintiff was working on the electrical lines pursuant to a contract between Haugland and Long Island Power Authority, Public Service Enterprise Group, Inc., and PSEG Long Island, LLC (collectively “the defendants”).
Pursuant to a court order, motions for summary judgment were to be made within 90 days of the filing of the note of issue. On May 6, 2019, the plaintiff filed a note of issue. On August 5, 2019, Haugland moved for summary judgment dismissing the Labor Law § 241(6) claim and the third-party complaint. On September 20, 2019, defendants cross-moved for summary judgment dismissing the complaint and on the third-party complaint for contractual indemnification. The trial court granted Haugland's motion and defendants' cross-motion for summary judgment dismissing the complaint. The trial court, in effect, denied defendants' cross-motion for summary judgment on the third-party claim for contractual indemnification. A judgment was subsequently entered in favor of defendants and against plaintiff dismissing the complaint, and in favor of Haugland and against defendants dismissing the third-party complaint.
Labor Law § 241(6) (TPW)
The Second Department reversed the trial court’s determination and concluded defendants and third-party defendant failed to establish their entitlement to judgment as a matter of law dismissing the Labor Law § 241(6) claim predicated on a violation of §§ 23-1.13(b)(3) and (4). 12 NYCRR § 23-1.13(b)(3) provides, among other things, that where the performance of the work may bring any person into physical or electrical contact with an electric power circuit, the employer "shall advise his [or her] employees of the locations of such lines, the hazards involved and the protective measures to be taken." 12 NYCRR § 23-1.13(b)(4) requires, in pertinent part, that employees who may come into contact with an electric power circuit be protected against electric shock "by de-energizing the circuit and grounding it or by guarding such circuit by effective insulation or other means.
In this case, the defendants and third-party defendant failed to demonstrate either that 12 NYCRR §§ 23-1.13(b)(3) and (4) were inapplicable to the facts of this case, or that the alleged violation of these regulations was not a proximate cause of the accident. Since they failed to make showing those branches of their respective motion and cross-motion should have been denied, without regard to the sufficiency of the opposition papers.
Labor Law § 200 and Common-Law Negligence (EDA)
The Second Department reversed the trial court’s finding that defendants' cross-motion was made more than one month after the expiration of the deadline imposed by the trial court, and defendants offered no explanation for the delay. Further, defendants' cross-motion for summary judgment dismissing the common-law negligence and Labor Law § 200 claims did not raise nearly identical issues as Haugland's timely motion, as Haugland's motion did not seek summary judgment regarding those claims. Therefore, the trial court should have denied those branches of defendants' cross-motion which were for summary judgment dismissing the common-law negligence and Labor Law § 200 claims as untimely
Indemnity Issues in Labor Law (AMC)
The Appellate Division held that Haugland failed to establish its prima facie entitlement to summary judgment seeking to dismiss the cause of action in the third-party complaint for contractual indemnification. Haugland failed to eliminate triable issues of fact as to whether its negligence contributed to the accident.
Plaintiff was injured when he fell 16 feet through an uncovered opening in an attic floor while performing construction work on the owner’s property. Plaintiff allegedly sustained severe neck, back, and left shoulder injuries from the fall. During his deposition, he testified he had never received treatment for his neck or back or felt pain in his neck or back prior to the accident at issue - claims that were contradicted by medical records exchanged during discovery. The trial court granted defendants’ motions to dismiss the complaint, but, thereafter, granted plaintiff’s motion for leave to reargue and renew his opposition to the separate motions to dismiss the complaint on the ground that plaintiff perpetrated a fraud on the court, and, upon reargument and renewal, denied the separate motions.
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s decision to grant plaintiffs’ leave to reargue because the court misapprehended the fact that plaintiffs had supplied discovery regarding the prior treatment of plaintiff’s neck and back before his deposition. Based on that fact, the Court held that defendant and third-party defendant failed to establish by clear and convincing evidence that plaintiff’s deposition was knowingly designed to hinder the factfinder’s fair adjudication of the case and their defenses.
PRACTICE POINT: Fraud on the court involves willful conduct that is deceitful and obstructionist, which injects misrepresentations and false information into the judicial process so seriously that it undermines the integrity of the proceeding. To demonstrate fraud on the court, the nonoffending party must establish by clear and convincing evidence that the offending party has acted knowingly to hinder the fact finder’s fair adjudication of the case and his or her adversary’s defense of the action. Dismissal is an extreme remedy, most appropriate in cases where the condition is particularly egregious, characterized by lies and fabrications in furtherance of a scheme designed to conceal critical matters from the court and the nonoffending party and where the conduct is perpetuated repeatedly and willfully. Here, defendant and third-party defendant could not meet this high burden to show plaintiff committed a fraud on the court.
Plaintiff was employed as a laborer by third-party defendant to work on the new construction of a house on 257 Toppings’ land. A-H was the general contractor on the project. During construction, plaintiff was spray-painting insulation in the attic space when he fell through an opening in the attic floor. He fell 16 feet, landing on the level below. The opening was intended to be covered by a panel that would provide access to the attic upon completion of construction. The trial court denied plaintiffs' motion for summary judgment on Labor Law § 240(1) claim and the Labor Law § 241(6) to the extent predicated on a violation of Industrial Code § 23-1.7(b)(1).
Labor Law § 240(1) (MAS)
The Second Department reversed the trial court’s decision and granted plaintiff’s motion. Plaintiff’s evidence established that he was exposed to an elevation risk within the ambit on Labor Law § 240(1) by virtue of the uncovered, unguarded opening in the attic floor, that he was not provided with any safety devices to protect him from that hazard, and that the failure to provide him with proper protection from the uncovered, unguarded opening was a proximate cause of his injuries. Although plaintiff testified that his visibility was poor due to the condition of a protective mask he was wearing at the time of his accident, any comparative negligence arising from this fact would not be an available defense under Labor Law § 240(1).
PRACTICE POINT: Plaintiff established in this case that the statute was violated with the absence of protective equipment covering or guarding against the opening in the attic floor and that the violation was a proximate cause of his injuries.
Labor Law § 241(6) (TPW)
The defendants' and the third-party defendant's contentions either were without merit or did not need to be addressed considering the above determination.
Plaintiff was injured at a construction site on property owned by 980 James. At the time of the injury, plaintiff and a supervisor for the general contractor, Time Cap, were moving a stack of drywall panels that was leaning against a wall and partially obstructing the doorway of a room that plaintiff needed to access to perform certain HVAC work. As plaintiff and the Time Cap supervisor moved several of the drywall panels from their position against the wall, the panels tilted too far and fell, striking plaintiff's ankle.
The trial c0urt denied plaintiff's motion for partial summary judgment under Labor Law § 240(1) against Time Cap and 980 James, granted in part and denied in part the motion of 980 James and Time Cap for summary judgment by dismissing the amended complaint against them and the third-party complaint for contractual indemnification, and denied the motion of Interior Builders’ for summary judgment seeking dismissal of plaintiff's amended complaint and all crossclaims.
Labor Law § 240(1) (MAS)
The Fourth Department reversed the trial court’s decision and denied defendants’ motion because although the drywall that fell on plaintiff was on the floor and was not being hoisted or secured, issues of fact exist whether Labor Law 240(1) applies to the facts of this case.
PRACTICE POINT: The Court’s decision cites Padilla v Touro Coll. Univ. Sys., 204 AD3d 415 (1st Dept 2022), a case with strikingly similar facts. The worker in that case was injured when he attempted to move a stack of sheetrock boards leaning against a wall that were purportedly pinching security system wires, and the boards fell on him. The First Department held that it could not be determined as to whether plaintiff’s injuries were proximately caused by the lack of a safety device of the kind required by statute. Moreover, the Court held a jury will need to determine whether plaintiff’s own conduct (i.e., disregarding his supervisor’s instructions not to move the stacked sheetrock), rather than any violation of Labor Law 240(1), was the sole proximate cause of his accident. The same is true for this case, including whether plaintiff’s injuries flowed directly from the application of the force of gravity to the drywall panels, whether the elevation differential was de minimis, and whether the combined weight of the drywall panels could generate a significant amount of force as it fell.
Labor Law § 241(6) (TPW)
The Fourth Department unanimously reversed the trial court’s order, which granted that part of the 980 James defendants' motion with respect to plaintiff's Labor Law § 241 (6) claim insofar as it is premised on an alleged violation of 12 NYCRR § 23-2.1(a)(1). That Industrial Code section deals with storage of material or equipment and specifically requires “[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.” The Court found issues of fact existed as to whether the drywall was stored safely at the construction site and whether the drywall was a material pile that blocked a passageway rendering determination on motion for summary judgment inappropriate.
Labor Law § 200 and Common-Law Negligence (EDA)
The Fourth Department affirmed the trial court’s decision denying the motion of 980 James to dismiss plaintiff's Labor Law § 200 and common-law negligence claims against Time Cap. Those claims alleged the placement of the drywall panels constituted a dangerous condition and that plaintiff's injuries resulted from the way the drywall panels were moved. With respect to both the § 200 and common-law negligence claims based on an allegedly dangerous premises condition, a defendant seeking summary judgment has the initial burden of establishing that it did not create or have actual or constructive notice of the dangerous condition. The Court held that plaintiff raised a triable issue of fact through his expert, who opined that the placement of the drywall was dangerous, and plaintiff also raised an issue of fact as to who created the alleged dangerous condition. It also found that 980 James failed to meet their initial burden on the motion with respect to plaintiff's theory that the drywall was moved in an unsafe manner as their own submissions raise a question of fact as to whether plaintiff was injured while following the instructions of a supervisor employed by Time Cap. Only the common-law negligence claim was asserted against Interior Builders, and the Second Department found questions of fact as to whether the placement of the drywall panels constituted a dangerous condition and who was responsible for creating that condition.
Indemnity Issues in Labor Law (AMC)
The Fourth Department overturned the lower Court’s decision granting 980 James defendants’ motion for summary judgment for contractual indemnification against Syracuse Energy. The indemnity clause specifically excludes coverage for claims due to the sole negligence of the indemnified parties. Because the Appellate Division found questions of fact regarding which entity placed the drywall and whether that alleged conduct caused plaintiff’s injury, the Court found that 980 James defendants’ motion should have been denied.
The Fourth Department agreed with Interior Builders contention that the lower Court erred in denying its motion to dismiss 980 James defendants’ cross-claim for contractual indemnification. As 980 James defendants’ did not oppose that branch of Interior Builders’ motion, it should have been granted.
The Fourth Department rejected Interior Builders’ contentions that the Court erred in denying those parts of its motion regarding 980 James defendants’ cross-claims for common-law indemnification and contribution.
Plaintiff was injured when he was working on the construction of a warehouse owned by OANB. DiMarco, the general contractor, subcontracted certain painting work to plaintiff's employer. Plaintiff alleged that, while spray-painting at a high elevation in the interior of the building, he experienced dizziness and fell from a boom lift that was exhausting noxious diesel fumes. Although plaintiff could not recall the incident, it is undisputed that he fell from the lift while it was raised 6 to 8 feet in the air. The trial court granted defendants' motion dismissing Plaintiff’s Labr Law § 240(1) claim, against OANB and DiMarco, respectively, and denied plaintiff's motion with respect to that claim against those defendants.
Labor Law § 240(1) (MAS)
The Fourth Department unanimously reversed the trial court’s decision and granted plaintiff’s motion. He established that he was subject to an elevation-related risk and that the failure to provide any safety devices to protect him from such a risk was a proximate cause of his injuries. Plaintiff submitted evidence demonstrating that his injuries were causally related to the fall from the lift and that he was using a boom lift that discharged fumes into the factory. He also submitted an expert affidavit who opined that defendants violated the statute by failing to ensure that the boom lift was “so constructed, placed and operated as to give proper protection’ to plaintiff and by allowing plaintiff to place the boom lift in a position where diesel fumes were likely to accumulate above him and cause dizziness.
PRACTICE POINT: To establish summary judgment, an injured worker need not demonstrate that the precise way the accident happened, or the injuries occurred was foreseeable; it is sufficient that he or she demonstrate that the risk of some injury from defendants’ conduct was foreseeable. In this case, plaintiff met his burden of establishing that his fall was a “normal and foreseeable” consequence of the placement of the lift, which exhausted noxious fumes too close to plaintiff.
New York Industrial Code Regulations (EDA)
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Regulation § 23–1.25(a)(3)(vi), Welding and flame cutting operations.
(3) Compressed gas cylinders.
Use.
(vi) Empty compressed gas cylinders shall be immediately removed from working areas and stored in designated safe locations. The valves of such cylinders shall be closed and tags or signs indicating that such cylinders are empty shall be attached thereto. The use of compressed gas cylinders as rollers, props or supports is prohibited.
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Regulation § 23–1.25(a)(3)(vi) is likely sufficiently specific to support a Labor Law § 241(6) cause of action.
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There are no cases directly on point for this subsection, however the prior paragraph with a specific command akin to this paragraph was found to be sufficiently specific to support a Labor Law § 241(6) cause of action.
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Labor Law Pointers
Editor
David R. Adams
Associate Editor
Timothy P. Welch
Associate Editor
Marc A. Schulz
Associate Editor
Eric D. Andrew
Associate Editor
Patrice C. S. Melville
Associate Editor
Ashley M. Cuneo
Labor Law Team
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