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Haskins v Metropolitan Transp. Auth.
May 2, 2024
Appellate Division, First Department
Plaintiff was working at ground level when he fell into a hole measuring 2 to 2½ feet deep, 18-inches wide, and 3-feet long that was covered by a thin piece of black plastic waterproofing material. The trial court granted plaintiff's motion for summary judgment on the Labor Law § 240(1) claim against TBTA.
 Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s decision to grant plaintiff’s motion. The trial court correctly found that the lack of sufficient safety devices to protect plaintiff from falling into a hole violated the statute and was a proximate cause of his incident. The Court rejected TBTA’s argument that plaintiff’s fall was not actionable under 240(1) because the height differential was de minimus since the record established that plaintiff’s fall was the result of exposure to an elevation-related hazard.
The Court also rejected TBTA’s argument that plaintiff’s motion was premature as TBTA failed to demonstrate that essential facts in opposition to the motion were exclusively within plaintiff’s knowledge and control given that the discovery sought related to a third-party action, and there was no indication that additional discovery might lead to relevant evidence.
PRACTICE POINT: There is no bright-line minimum height differential that determines whether an elevation hazard exists. Remember, the fact that plaintiff fell while he was working on ground level does not remove this case from the purview of § 240(1). If you're going to argue that summary judgment is premature because discovery is incomplete, then you must show “that facts essential justify opposition may exist but cannot then be stated” by identifying the additional discovery that may lead to relevant evidence and explaining to the court why your client lacks personal knowledge of said facts or else risk losing said motion (see CPLR 3212[f]).
Britt v Levga r Equities Corp.
May 7, 2024
Appellate Division, First Department
Plaintiff, while attempting to install an AC coil unit at defendants' premises, was injured when he received an electric shock, and was unable to let go of the unit. When the power was cut, the unit fell on his knees. He then tried to pull the unit back up to prevent it from striking his coworker, who was working below, sustaining injuries. The trial court granted defendants’ motion to vacate the trial court's prior order, and upon such vacatur, adhered to its prior order granting plaintiff partial summary judgment on his Labor Law §§ 240(1) and 241(6) claims.
Labor Law § 240(1) (MAS)
The First department unanimously affirmed the trial court’s decision to grant plaintiff partial summary judgment under Labor Law 240(1), notwithstanding that he neither fell from a height nor was struck by a falling object, because his injuries were caused by his effort to prevent the unit from falling on his coworker.
PRACTICE POINT: Although plaintiff neither fell from a height nor was struck by a falling object, his claim did not require dismissal under § 240(1) because his proof shows that his injury was caused by his effort to prevent the AC unit from falling on his coworker, which did not constitute routine maintenance because he was installing a new AC unit, and which posed an elevation-relation hazard for which no safety devices were provided.
 Labor Law § 241(6) (TPW)
The First Department unanimously affirmed the underlying decision granting Plaintiff partial summary judgment as to liability on his Labor Law § 241 (6) claim predicated on violations of Industrial Code (12 NYCRR) § 23-1.13(b) (3) and (4), since defendants did not ascertain whether there were live wires in the vicinity of plaintiff's work location and failed to protect plaintiff against an electrical shock.
Loja v 133 Lincoln LLC
May 7, 2024
Appellate Division, First Department
Plaintiff was injured on a construction project and sued Casur, claiming it was the owner of the property. Casur submitted the affidavit of its president, averring, among other things, that defendant had not been in business for over 10 years, had never owned the property or had any other connection to the property, and did not direct, supervise, or control any construction work at the property. The trial court denied Casur’s motion to dismiss the complaint against it, pursuant to CPLR §§ 3211(a)(1) and (7) or for summary judgment dismissing the complaint as against it and denied its request for sanctions against plaintiff for engaging in frivolous litigation pursuant to 22 NYCRR § 130-1.1.
Labor Law § 240(1) (MAS)
The First Department reversed the trial court and granted Casur’s motion for summary judgment because it established that it was not a proper Labor Law defendant. Since plaintiff failed to show that additional discovery is necessary, the Court also held that plaintiff failed to raise a triable issue of fact.
PRACTICE POINT: We analyze every Labor Law case using the same four criteria: (1) appropriate plaintiff; (2) appropriate defendant; (3) appropriate project; and (4) elevation-related/gravity-related risk. In this case, defendant’s affidavit from its president demonstrated that it was not an appropriate Labor Law defendant.
Simpertegui v Carlyle House Inc.
May 9, 2024
Appellate Division, First Department
Plaintiff was injured while removing and replacing bricks on a building at a construction site. At his deposition, he testified that while working, he climbed up an extension ladder to retrieve materials necessary for the project. According to plaintiff, when he reached a point around seven to eight feet off the ground, the ladder suddenly moved, causing him to fall. The trial court granted plaintiffs' motion for summary judgment on liability his Labor Law § 240(1) claim.
Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court’s decision and denied plaintiff’s motion. Plaintiff established his entitlement to summary judgment through his deposition testimony describing the incident and photographic evidence of the site. However, the Court also held that defendants raised triable issues of fact sufficient to defeat the motion by identifying various inconsistencies in plaintiff’s’ account of his incident, thus calling into question his overall credibility and the circumstances underlying his claimed injuries.
For example, the evidence showed that plaintiff first went to the hospital at least several days after his employer had allegedly terminated him for unexplained, repeated absenteeism. The Court also noted that plaintiff testified inconsistently about the day he allegedly was injured, whether he continued working after his alleged incident, and whether he promptly reported his incident.
PRACTICE POINT: Plaintiff’s fall from an unsecured ladder establishes a violation of Labor Law 240(1), but defendant defeated plaintiff’s motion here by raising a triable issue refuting plaintiff’s version of how his incident occurred, thereby challenging his credibility and the circumstances underlying his claimed injuries.
Early investigation into the details of the incident and communication with the employer were the keys to this result.
Maldonado v Hines 1045 Ave. of the Ams. Invs. LLC
May 14, 2024
Appellate Division, First Department
Plaintiff, a welder, tripped over electrical conduit piping that rose vertically 5-12 inches in height from the floor surface in the lobby of a new building under construction and was injured. The trial court granted the motion of Hines 1045 Avenue of the Americas Investors and Turner Construction for summary judgment dismissing plaintiff's Labor Law § 241(6) claim and denied their motion seeking summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims.
Labor Law § 241(6) (TPW)
The First Department unanimously modified the underlying decision which granted defendants’ motions for summary judgment dismissing plaintiff's Labor Law § 241 (6) claim and reinstated that claim. The Court held that it was undisputed that plywood boxes ordinarily were placed on the protruding conduit piping, which mitigated the risk of tripping without rendering the overall work impossible to complete. The plywood boxes, however, were removed at the time of plaintiff's accident. Therefore, issues of fact remained regarding the preventative measures taken to mitigate the risks associated with the dangerous condition. Accordingly, it was determined that summary judgment on the Labor Law § 241 (6) was premature and the claim was reinstated to resolve the issues of fact.
 Labor Law § 200 and Common-Law Negligence (EDA)
The First Department affirmed the trial court’s finding that defendants did not establish their entitlement to summary judgment dismissing the Labor Law § 200 and common-law negligence claims. The Court found insufficient proof offered to show that either defendant Turner, the general contractor, or Hines, the property owner, lacked authority or supervision over the electrical contractor's injury-producing work.
Siegel v Delta Airlines, Inc.
May 14, 2024
Appellate Division, First Department
Plaintiff, an employee of non-party GMA, fell from an A-frame ladder while performing work as a construction electrician at La Guardia Airport. The premises was owned by the Port Authority and leased to Delta. Vanderlande was engaged by Delta as a general contractor and its role included constructing the baggage handling system at the Delta Airlines terminal project. Delta also contracted with VHR to provide construction management services at the terminal C renovation. The trial court denied VRH's motion for summary judgment dismissing the complaint as against it.
Labor Law § 240(1) (MAS)
The First Department affirmed the trial court’s decision to deny VRH’s motion to dismiss the § 240(1) claim as their evidence raised issues of fact about whether it was a statutory agent that possessed supervisory control over plaintiff’s work. VRH’s superintendent described VRH as both a construction manager and a general contractor on the project. Moreover, he testified that VRH was responsible for supervising and directing the work, retained subcontractors, including plaintiff’s employer, and was solely responsible for all construction means, methods, sequences, and procedures and for coordinating all portions of the work.
PRACTICE POINT: Although a construction manager of a work site is generally not responsible for injuries under Labor Law § 240(1), one may be vicariously liable as an agent of the property owner for injuries sustained under the statute where the manager had the ability to control the activity which brought about the injury. “When the work giving rise to the duty to conform to the requirements of section 240(1) has been delegated to a third-party, that third-party then obtains the concomitant authority to supervise and control that work and because a statutory agent of the owner or general contractor. Stated differently, unless a defendant construction manager has supervisory control and authority over the work being done when plaintiff is injured, there is no statutory agency conferring liability under the Labor Law.
Labor Law § 200 and Common-Law Negligence (EDA)
The First Department reversed the trial court’s decision, finding that VRH did not actually exercise supervision or control over the means or methods of plaintiff's injury-producing work. The ladder plaintiff used was supplied by his employer, and he received his instructions only from his employer and never dealt with VRH in any way.
De Los Santos v Carlyle House Inc.
May 21, 2024
Appellate Division, First Department
Plaintiff was working on a motorized scaffold that stopped and misleveled while descending, causing plaintiff to slip on leaking motor oil and fall one and a half stories to the sidewalk bridge below. The trial court granted plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim and the Labor Law § 241(6) claim as predicated on an alleged violation of Industrial Code (22 NYCRR) § 23-1.7(d).
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s decision because plaintiff’s deposition testimony established that defendants’ violated Labor Law § 240(1) and that the violation proximately caused his injuries. The Court also held that the trial court properly exercised its discretion in disregarding the affidavit of plaintiff’s foreman, which was notarized outside New York State and unaccompanied by a certificate of conformity as required by CPLR § 2309(c). Even if the affidavit were considered, the Court noted that the foreman did not witness the accident or have personal knowledge of any facts sufficient to oppose plaintiff’s motion.
PRACTICE POINT: Speculation and inconsistent statements are insufficient to raise a triable issue of fact to defeat a plaintiff’s motion, especially considering that, as in this case, the foreman did not witness plaintiff’s accident. Also, all evidence must be in admissible form, including complying with technical formalities with respect to out of state affidavits.
Labor Law § 241(6) (TPW)
The First Department unanimously affirmed the lower Court decision granting plaintiff summary judgment under Labor Law § 241(6) pursuant to 12 NYCRR 23-1.7(d). That Industrial Code Section provides in relevant part that "[e]mployers shall not suffer or permit any employee to use a . . . scaffold, platform or other elevated working surface which is in a slippery condition." It was determined plaintiff met his prima facie burden through his testimony that he was working on a motorized scaffold that stopped and misleveled while descending, causing plaintiff to slip on leaking motor oil and fall. Defendant failed to meet its burden of raising triable issues of fact by relying on testimony and statements of persons who did not witness the accident. Simply because the plaintiff was the sole known witness did not defeat his entitlement to summary judgment.
Munoz v JDS Seagirt LLC
May 21, 2024
Appellate Division, First Department
While working as a plumbing mechanic at a home construction site, plaintiff stepped on unsecured metal Q-decking that had been placed over an open gap. When the Q-decking gave way, plaintiff fell six to ten feet to the ground below. The property was owned, and the construction overseen by, the JDS defendants. Sampogna was a concrete/masonry subcontractor on the project. RCI executed a plumbing contract with the JDS defendants, and then subcontracted the work to plaintiff's employer, nonparty Pro Star.
The trial court denied Sampogna's motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims against it and dismissing all crossclaims as against it and denied the motion of the RCI defendants for summary judgment dismissing the JDS defendants’ third-party claims for contractual indemnification.
Labor Law § 200 and Common-Law Negligence (EDA)
The First Department affirmed the trial court’s decision. While it was unclear which entity placed the unsecured Q-decking, the record indicated Sampogna's concrete workers were the most recent trade working in the area in question, that Sampogna workers had a duty to employ fall protection methods in connection with their work, and that Sampogna utilized Q-decking in performing its concrete work.
 Indemnity Issues in Labor Law (AMC)
The First Department affirmed the trial court’s decision to deny Sampogna’s motion for summary judgment because Sampogna failed to demonstrate that it owed no duty to provide contractual indemnity to JDS. Additionally, the Court found a question of fact as to how the accident occurred, including whether it arose in whole or in part from Sampogna's work. Thus, the Court held that an owner or general contractor can seek contractual indemnification, even if they are partly at fault for the accident, as long the indemnification provision is prefaced by “to the fullest extent of the law”.
The Court also affirmed denial of RCI’s motion for summary judgment seeking to dismiss JDS’s crossclaim for contractual indemnification as there are questions of fact regarding whether and negligence of JDS was the proximate cause of plaintiff’s accident.
Nassar v Macy's Inc.
May 23, 2024
Appellate Division, First Department
Plaintiff was working for Marcello Tile as a helper at Macy's installing marble slabs for flooring Plaintiff borrowed a Structure Tone A-frame cart. Plaintiff testified that the wheel he claims later malfunctioned was wobbly but not when empty He loaded it with 350 pounds and began to push the cart up a ramp with a pitch of twenty-four inches. When seventy to eighty percent of the cart was on the ramp, the wheel stopped swiveling, snapping plaintiff's “whole back”.
The trial court, in reviewing an earlier order from a jury trial, granted defendants' motion, pursuant to CPLR § 4404(a), to set aside the jury verdict in favor of plaintiff and against Structure Tone on the Labor Law § 200 and common-law negligence claims, entered judgment in defendants' favor, and denied plaintiff's motion to vacate the jury's final damages award in favor of the jury's original award.
Labor Law § 200 and Common-Law Negligence (EDA)
The First Department affirmed the trial court’s decision in vacating the jury verdict. It found that the trial court providently exercised its discretion in dismissing plaintiff's Labor Law § 200 and common-law negligence claims and setting aside the jury verdict related to plaintiff's first accident. Testimony at trial indicated that the cart looked normal and functioned properly, and there had never been any complaints about any of the carts. Plaintiff testified the wheel was not visibly defective, and he only noticed that it wobbled after being loaded with 400 pounds. Without any evidence of notice, the Court noted that the jury could not have drawn a permissible inference that Structure Tone was liable for plaintiff's injuries. Plaintiff did not testify that the ramp caused his accidents but rather consistently blamed the defective wheel on the A-cart. Notably, at trial, plaintiff expressly declined to question his expert on whether the ramp “represented a dangerous condition” or a “substantial factor in causing plaintiff's accident.”
Sternkopf v 395 Hudson N.Y., LLC
May 23, 2024
Appellate Division, First Department
Plaintiff was employed by Par Fire to relocate sprinkler heads at a building owned by 395 Hudson. Fitzgerald was the general contractor for the construction work and responsible for removal of debris. Fitzgerald retained Par Fire to do sprinkler work and retained ARI Products to install carpeting. Plaintiff's accident occurred as he was walking in a hallway at the construction site and stepped and slipped on a piece of discarded carpeting. The trial court granted plaintiff’s motion for summary judgement on his Labor Law § 241(6) claim based on an alleged violation of Industrial Code (22 NYCRR) § 23-1.7(e)(2).
Labor Law § 241(6) (TPW)
The First Department affirmed that portion of plaintiff’s motion for summary judgment on Labor Law § 241(6) claim predicated on Industrial Code (12 NYCRR) § 23-1.7(e)(2). Plaintiff's accident occurred as he was walking in a hallway at the construction site and stepped and slipped on a piece of discarded carpeting. The accident was caused by stepping on debris and did not arise from performing his work duties. The court concluded that discarded carpeting constituted debris that was not integral to the work being performed at the accident site.
Indemnity Issues in Labor Law (AMC)
The Second Department affirmed the trial court’s decision to grant Par Fire’s and Fitzgerald’s motions for summary judgment. As plaintiff’s accident did not arise out of his work duties, the Court held the indemnity provision between Par Fire and Fitzgerald was not triggered. Fitzgerald’s motion for summary judgment was also denied as it removed the debris; thus, the Court found an issue of fact as to whether it failed to discharge that duty and whether that violation contributed to plaintiff’s accident.
Cevallos v WBB Constr., Inc.
May 1, 2024
Appellate Division, Second Department
Plaintiff was injured when, to reach the piece of wood, he set up an A-frame ladder. He climbed to the fourth rung of the five-rung ladder, and, upon finishing cutting the wood, the wood fell, striking plaintiff in the leg and then striking the ladder, causing both to fall to the ground. WBB and Madison were the general contractor and the owner, respectively, of the subject construction site. Plaintiff was employed by nonparty Sky Materials, who WBB contracted with to, among other things, build out the floors of the building being constructed at the site. The trial court granted plaintiff's motion for summary judgment on Labor Law § 240(1) claim.
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s decision. In opposition, the Court held that contrary to defendants’ contention, they failed to raise a triable issue of fact as to whether plaintiff’s actions were the sole proximate cause of the accident.
PRACTICE POINT: A plaintiff is the sole proximate cause of his or her own injuries and a defendant has no liability under Labor Law § 240(1) when the injured worker: (1) had adequate safety devices; (2) knew both that the safety devices were available and that he or she was expected to use them, (3) chose for no good reason not to do so or misused the safety device, and (4) would not have been injured had he or she not made that choice. Where, as here, defendant cannot prove all four elements, then the defense is not available.
Flores v Fort Green Homes, LLC
May 1, 2024
Appellate Division, Second Department
Plaintiff was injured when, while “backfilling” the foundation at a construction site, a fire extinguisher resting unsecure on a beam 20 feet above plaintiff fell and struck him on the head. The trial court denied plaintiff's motion for summary judgment on the Labor Law § 240(1) claim and granted defendants' 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 decision denying plaintiff’s motion for partial summary judgment on his Labor Law 240(1) and granting defendants’ motion seeking dismissal of the §§ 240(1) and 241(6) claims. Defendants established that the fire extinguisher that fell on plaintiff “was not a material being hoisted or a load that required securing for the purposes of the undertaking at the time it fell.” For the same reason, the Court held that plaintiff failed to demonstrate his entitlement to judgment as a matter of law on his § 240(1) claim.
PRACTICE POINT: With respect to falling objects, Labor Law § 240(1) applies where the falling of an object is related to a significant risk inherent in the relative elevation at which materials or loads must be positioned or secured. Therefore, a plaintiff must show that, at the time the object fell, it was being hoisted or secured, or that the falling object required securing for the purposes of the undertaking. Here, the plaintiff could not meet his burden of establishing same.
Labor Law § 241(6) (TPW)
The Second Department affirmed the dismissal of plaintiff’s Labor Law § 241(6) cause of action predicated upon a violation of Industrial Code 12 NYCRR 23-1.7(a)(1) which requires a plaintiff to demonstrate that "the area in which the plaintiff was injured was one where workers are normally exposed to falling objects." Here, defendants established that Industrial Code section was inapplicable to the facts of this case since the area where the incident occurred was not "normally exposed to falling material or objects" within the meaning of 12 NYCRR 23-1.7(a). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6).
Guaman-Sanango v 57 E. 72nd Corp.
May 1, 2024
Appellate Division, Second Department
Plaintiff was injured when he fell from a ladder while performing renovation work in an apartment. Defendant 57 East was the owner of the building and Rialto managed the building. The nonparty owners of the apartment hired nonparty GSK Contracting, plaintiff's employer, to perform the renovation work. The trial court granted plaintiff's motion for summary judgment on the Labor Law § 240(1) claim against 57 East.
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s decision granting plaintiff’s motion under Labor Law 240(1). The unsigned, unsworn, and uncertified transcripts of audio recordings of interviews with plaintiff’s supervisor and a nonparty contractor submitted by defendants were inadmissible. In any event, even accepting all of the statements in the audio recordings are true, the recordings failed to raise a triable issue of fact as to whether plaintiff was a recalcitrant worker and the sole proximate cause of the accident.
PRACTICE POINT: Since plaintiff was provided with only an unsecured ladder and no safety devices, plaintiff cannot be held solely at fault for his injuries.
Guaman-Sanango v 57 E. 72nd Corp.
May 1, 2024
Appellate Division, Second Department
Same facts as the last case (which has the same name), with 57 East the owner of the building and Rialto the building’s manager (collectively “the building owners”). The owners of the apartment, defendants Matthew Nguyen, Bianca Bosker, and Helen Lencek (collectively “the apartment owner defendants”), hired nonparty GSK Contracting, plaintiff's employer, to perform the renovation work.
The trial court granted the apartment owner defendants’ motion for summary judgment dismissing the crossclaim for contractual indemnification asserted against them by the building owners and denied the cross-motion of the building owners for summary judgment on their crossclaims for contractual indemnification, common-law indemnification, and contribution against the apartment owner defendants.
Indemnity Issues in Labor Law (AMC)
The Second Department affirmed the trial court’s decision granting the apartment owner defendants’ motion and denying the building owner’s motion regarding contractual indemnification claim because the broad indemnity provision, such as the one in the proprietary lease and alteration agreement(s), are unenforceable pursuant to General Obligations Law § 5-321 as said documents were not negotiated at arm’s length by two sophisticated business entities.
As for the building owners’ motion for common-law indemnification and contribution, the Court held the building owners failed to demonstrate that they were not negligent and that the apartment owner defendants’ actual negligence contributed to the accident, or that the apartment owner defendants had the authority to direct supervise and control the work giving rise to plaintiff's injury.
Rzepka v City of New York
May 15, 2024
Appellate Division, Second Department
Plaintiff, a bricklayer, was instructed to replace the brick facade on a school building at a renovation project in Queens. To reach the building's facade, the bricklayers stood on platforms attached to a five- or six-level scaffold that had been erected around the school building. The platforms bridged a two-foot gap between the scaffold and the exterior wall of the building. While plaintiff was standing on a platform attached to the second level of the scaffold, he was struck by several bricks that fell from the roof. The trial court 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 reinstated plaintiff’s § 240(1) claim. Defendants’ submissions failed to eliminate all triable issues of fact as to whether the bricks that struck plaintiff were part of a load that required securing or fell due to the absence or inadequacy of an enumerated safety device.
PRACTICE POINT: Falling object liability under § 240(1) is not limited to cases in which the falling object is in the process of being hoisted or secured, but may also be imposed, where, as here, an object or material that fell, causing injury, was a load that required securing for the purposes of the undertaking at the time it fell.
Verdi v SP Irving Owner, LLC
May 15, 2024
Appellate Division, Second Department
Defendants own a mixed-use, multifamily building, which has retail space on the bottom floor and residential apartment units on the top floors. They retained Bluestone, plaintiff’s employer, to perform work on certain apartment units in the building. Plaintiff was assigned the task of removing garbage and debris from the fifth floor of the building and transporting it to the first floor of the building by way of an interior staircase. Plaintiff testified at his deposition that as he was carrying the "bottom part" of a toilet, he went to descend to the next step of the staircase and his foot "slipped" on demolition or construction material, causing him to fall.
The trial court denied plaintiff's motion for leave to amend the bill of particulars to allege a violation of Industrial Code (12 NYCRR) § 23-3.3(e) with regard to the Labor Law § 241(6) claim and for summary judgment on that claim based on violations of §§ 23-1.7(d) and 23-3.3(e), and granted defendants' cross-motion for summary judgment dismissing the Labor Law § 240(1) claim and the Labor Law § 241(6) as was predicated on violations of §§ 23-1.7(d) and 23-3.3(e).
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s decision dismissing the § 240(1) claim because the permanent staircase from which plaintiff fell was a normal appurtenance to the building and was not designed as a safety device to protect him from an elevation-related risk. Contrary to plaintiff’s contention, “any alleged violations of the Industrial Code do not establish a violation of Labor Law § 240(1).”
PRACTICE POINT: Plaintiff’s injury was not caused by an elevation-related hazard under § 240(1) and there is no liability under that statute regarding plaintiff’s act of descending a permanent stairway.
Labor Law § 241(6) (TPW)
The Second Department affirmed in part and modified in part that portion of the lower court’s decision as it related to plaintiff’s Labor Law § 241(6) cause of action. Frist, plaintiff testified at his deposition that he slipped because of "demolition" or "construction" debris, which is not the type of foreign substance contemplated by 12 NYCRR 23-1.7(d). Thus, this deposition testimony, submitted in support of the plaintiff's motion, failed to establish his prima facie entitlement to judgment as a matter of law. Moreover, the deposition testimony, submitted in support of the defendants' cross-motion, established, prima facie, that 12 NYCRR 23-1.7(d) was inapplicable to the facts of this case. Further the Second Department reversed the Supreme Court to the extent it denied plaintiff leave to amend the Bill of Particulars to allege a violation of 12 NYCRR 23-3.3(e). However, the court declined to review the merits of the contentions predicated on a violation of 12 NYCRR 23-3.3(e) and remitted the matter to the Supreme Court for a determination of 12 NYCRR 23-3.3(e) on the merits.
Gonzalez v City of New York
May 22, 2024
Appellate Division, Second Department
Plaintiff was injured while dismantling scaffolding outside a NYC public school in Queens. The trial court granted defendants' motion for summary judgment dismissing plaintiff’s Labor Law § 241(6) claim predicated on an alleged violation of 12 NYCRR § 23-1.8(a), and the Labor Law § 200 and common-law negligence claims, and denied plaintiff's cross-motion for leave to amend the bill of particulars.
Labor Law § 241(6) (TPW)
The Second Department reversed that portion of the lower court’s decision granting defendant’s motion for summary judgment on the Labor Law 241(6) claim predicated upon a violation of 12 NYCRR 23-1.8(a). Industrial Code (12 NYCRR) § 23-1.8(a), titled Personal Protective Equipment, provides: "Eye protection. Approved eye protection equipment suitable for the hazard involved shall be provided for and shall be used by all persons while employed in welding, burning or cutting operations or in chipping, cutting or grinding any material from which particles may fly, or while engaged in any other operation which may endanger the eyes." The Appellate Division held defendants failed to establish, prima facie, their entitlement to judgment as a matter of law with respect to this provision of the Industrial Code. The evidence submitted in support of the defendants' motion failed to eliminate triable issues of fact as to whether the defendants' failure to require the plaintiff to wear safety goggles was a proximate cause of his alleged injury. Therefore, it was held the Supreme Court should have denied that branch of the motion, without regard to the sufficiency of the opposition papers.
Labor Law § 200 and Common-Law Negligence (EDA)
The Second Department affirmed the trial court’s finding that the owner and general contractor did not exercise any supervisory control over the operation. The right to generally supervise the work, to stop the work if a safety violation is noted, or to ensure compliance with safety regulations does not amount to the supervision and control of the work necessary to impose liability on an owner or a general contractor pursuant to Labor Law § 200. In opposition, the Court held that plaintiff failed to raise and issue of triable fact.
Marshall v Manuel
May 22, 2024
Appellate Division, Second Department
Plaintiff was injured when she closed her right pinky finger in the door of a vehicle while it was parked near premises owned by defendants. In her bill of particulars, plaintiff alleged that her injury occurred in the course of her employment as a “[m]eter [i]nstaller” with nonparty Aclara Technologies. The trial court granted the summary judgment motion of defendants Virginia Manuel and William Manuel dismissing the alleged violations of Labor Law §§ 240(1), 241(6), 200 and common-law negligence.
Labor Law § 240(1) (MAS)
The Second Department affirmed dismissal of plaintiff’s § 240(1) claim because defendants established that plaintiff’s injuries were not caused by an elevation-related or gravity-related risk encompassed by the statute. Plaintiff’s contention that defendants’ motion should have been denied as premature was rejected by the Court because she failed to offer an evidentiary basis to suggest that discovery may lead to relevant evidence or that facts essential to opposing the motion were exclusively within defendants’ control. Thus, the Court held she failed to demonstrate that defendants’ motion for summary judgment was premature.
PRACTICE POINT: Closing a vehicle’s door on your (or your coworker’s) finger is simply not an elevation-related or gravity-related risk covered under Labor Law § 240(1). Also, a party contending that a summary judgment motion is premature must demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant. The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion.
Labor Law § 241(6) (TPW)
For the same reasons as above, the Second Department confirmed that plaintiff’s Labor Law 241(6) claim was likewise without merit.
Labor Law § 200 and Common-Law Negligence (EDA)
The Second Department affirmed the trial court’s finding that defendants did not have the authority to supervise or control either plaintiff or the vehicle which eventuated her injury. They also showed that that they did not otherwise have actual or constructive notice of the alleged dangerous condition of the vehicle. In opposition, the Court held that plaintiff did not raise a triable issue of fact.
Krause v Industry Matrix, LLC
May 10, 2024
Appellate Division, Fourth Department
Plaintiff fell from a ladder while performing chimney pointing work on a residential rental building owned by defendant. The trial court denied plaintiff’s motion for partial summary judgment on liability under Labor Law § 240(1).
Labor Law § 240(1) (MAS)
The Fourth Department affirmed the trial court’s decision to deny plaintiff’s motion. The Court found that plaintiff met his initial burden of establishing that the ladder was “not so placed ... as to give proper protection to [him]” through evidence that he fell when the ladder suddenly and unexpectedly shifted. However, the Court also held that defendant met his in opposition the motion through evidence suggesting that plaintiff fell from the ladder because he missed a step while descending, not because the ladder shifted or otherwise failed.
The Court also dismissed defendant’s appeal, finding it is not aggrieved by the trial court’s decision because in rejecting defendant’s argument that plaintiff’s motion was premature, the decision neither granted relief against it nor denied any motion for affirmative relief on its own behalf.
PRACTICE POINT: A defendant can defeat a plaintiff’s motion for summary judgment under Labor Law § 240(1) by raising a triable issue of fact as to whether plaintiff’s own conduct, rather than any violation of the statute, was the sole proximate cause of his or her accident.
New York Industrial Code Regulations (EDA)
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Note from David R. Adams:
