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Cuomo v Port Auth. of N.Y. & N.J.
June 4, 2024
Appellate Division, First Department
Plaintiff was using a temporary staircase to access a wooden platform when he fell. The trial court granted plaintiff's motion for summary judgment under Labor Law § 240(1).
 Labor Law § 240(1)(MAS)
The First Department unanimously affirmed the trial court’s decision as the unsecured temporary staircase plaintiff was using at the time of his incident was inadequate to protect him from a gravity-related risk. The Court held that defendants failed to raise an issue of fact, despite that the accident reports they submitted did not state that the staircase moved because any alleged misuse of the temporary staircase by plaintiff was at most comparative negligence, which is not a defense under Labor Law § 240(1).
PRACTICE POINT: Fatal to defendants’ misuse argument was that their safety inspectors conceded the staircase failed to provide safe access from a wooden platform to the concrete floor. Therefore, any misuse could never be the sole proximate cause. Moreover, plaintiff in this case was not required to demonstrate that the staircase was defective, only that it failed to provide him with proper protection from a gravity-related risk.
Rivera v 95th & Third LLC
June 4, 2024
Appellate Division, First Department
Plaintiff was injured while he was assisting with the erection of a large stone structure on the terrace of a building. During that work, several of the stones, each weighing 3,500 pounds, had to be removed and replaced. As a hoist exerted pressure on the stone, the stone broke, swung to the side, and pinned plaintiff's hand against an adjacent wall. The trial court granted the motion of 95th & Third and Gilbane’s for summary judgment dismissing plaintiff’s Labor Law § 240(1) claim
Labor Law § 240(1)(MAS)
The First Department unanimously reversed the trial court, denied the motion and reinstated plaintiff’s Labor Law § 240(1) claim. The Court held that defendants failed to demonstrate, as a matter of law, whether the stone merely moved laterally or in a pendulum-like fashion. If it was the latter, which the Court found the records supported, then it would implicate the force of gravity. Accordingly, the Court found a permissible inference that the provided safety devices “proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person.”
PRACTICE POINT: Since the record showed that safety devices failed to provide proper protection to prevent plaintiff from being injured from a falling object, defendants failed to eliminate all issues of fact as to whether Labor Law 240(1) was violated and whether said violation was a proximate cause in causing plaintiff’s injury. As the swinging of the stone in a pendulum manner would have been initiated by the effects of gravity on the stone as opposed to merely moving laterally due to the fracture of the stone, a question of fact existed with one potential cause supporting the §240(1) claim and one cause not qualifying. As a result, defendants were not entitled to summary judgment.
Colon v New York City Dept. of Educ.
June 6, 2024
Appellate Division, First Department
Plaintiff allegedly sustained an injury to his arm, during the demolition of defendant’s school chimney, when he and his coworkers lost control of a large stone causing him to slip on dust and fall atop the scaffold on which he had been working. The trial court denied defendants' motion for summary judgment and granted plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim.
Labor Law § 240(1)(MAS)
The First Department unanimously affirmed the trial court’s decision. While the stone only shifted forward and down two feet, it was one of significant weight. The Court rejected as unpersuasive defendant’s argument that plaintiff’s deposition testimony is contradicted by his earlier 50-h testimony such that it should be rejected as feigned evidence. Any seeming inconsistencies as to the description of the stone and its detachment from the chimney are the result of a forced reading of vague questions and answers from the 50-h. The Court further held that the testimony of plaintiff’s coworker also supports the description of the accident given by plaintiff at his deposition, and defendants submitted no other witness accounts of the accident.
Nor was plaintiff the sole proximate cause of his accident, where there was a clear lack of proper hoisting equipment provided to remove the stone from the chimney under demolition. The Court also rejected defendants’ claim that plaintiff was conducting unauthorized work that would remove him from the protection of Labor Law § 240(1) as unsupported by the record.
PRACTICE POINT: Runner involved circumstances strikingly similarly to those of this case. In Runner, plaintiff and two coworkers attempted to move an 800-pound reel of wire down a flight of just four stairs by tying one end of a length of rope to the reel, looping the rope around a metal bar placed horizontally across a door jamb, and then holding the rope in their hands (acting as counterweights) while two other coworkers pushed the reel down the stairs. As the reel descended, it pulled plaintiff into the metal bar, injuring his hands. The Court of Appeals observed that there was no indication that the makeshift pulley being used at the time of injury malfunctioned; it simply was not adequate to allow the reel’s descent to be properly regulated. The Court specifically noted that liability under the statute is not limited to instances in which the worker is actually struck by a falling object but, “the relevant inquiry ... is rather whether the harm flows directly from the application of the force of gravity to the object.”
Gervasi v FSP 787 Seventh LLC
June 11, 2024
Appellate Division, First Department
Plaintiff, a journeyman carpenter employed by Eurotech, allegedly walked across the site of a renovation project and was injured when he tripped on a concrete-colored steel pin or nail embedded in a concrete floor at the site. The pin or nail blended in with the floor because of its color, although it extended ½" above the floor.
The trial court granted plaintiff's motion for summary judgment his claim under Labor Law § 241(6) as against FSP 787 and Structure Tone, and dismissed the affirmative defenses alleging plaintiff's comparative negligence and culpable conduct; denied the motions of FSP 787, Fifth Street Property, Sidley Austin, and Structure Tone (“defendants”) and New Land for summary judgment dismissing plaintiff's Labor Law § 241(6) claim; denied defendants' motion for summary judgment on their claims for contractual indemnity against New Land and Eurotech; granted defendants' motion to dismiss plaintiff's Labor Law § 200 claim; and denied New Land's motion to dismiss the third-party complaint and all cross-claims against it.
 Labor Law § 241(6) (TPW)
The First Department affirmed the trial court’s decision as plaintiff was able to unequivocally establish the steel pin or nail left partially embedded in the floor was a "sharp projection," which violated Industrial Code (12 NYCRR) § 23-1.7(e)(2) as it was "clearly defined or distinct". No other party submitted evidence sufficient to raise a triable issue of fact on this issue.
 Labor Law § 200 and Common-Law Negligence (EDA)
The First Department unanimously affirmed the trial court’s dismissal of the Labor Law § 200 claim against defendants, as argued by New Land, because no party opposed defendants' motion to dismiss that claim.
 Indemnity Issues in Labor Law (PCSM)
The First Department affirmed the trial court’s dismissal of New Land’s motion to dismiss the crossclaims against it for common-law indemnification and contribution as it was the contractor responsible for demolition at the jobsite, including removal of the very pin or nail that allegedly caused plaintiff’s accident. However, the Court reversed the trial court’s decision and granted conditional summary judgment on defendants’ claims of contractual indemnity against New Land and Eurotech as the indemnification provisions in the related contracts did not contain a negligence trigger - only that the claim arises out of New Land’s or Eurotech’s work. Since New Land was responsible for demolition and Eurotech was plaintiff’s employer, the Court reasoned that plaintiff’s incident arose out of both entities’ work.
Hartigan v Gilbane Bldg. Co.
June 13, 2024
Appellate Division, First Department
Plaintiff fell as he climbed down from the retracted man lift upon which he had been performing overhead fire-sprinkler work. While holding onto the lift's affixed metal ladder, he slipped due to moisture on its metal rungs and fell four to five feet to the ground. The trial court granted plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim against the construction manager, Gilbane, and lessee in trust, Hudson River Park Trust (“HRPT”).
Labor Law § 240(1) (MAS)
The First Department reversed the trial court and denied the motion. Viewing the facts in the light most favorable to defendants, as it must, the Court found that questions of fact remain, assuming plaintiff’s accident involved a gravity-related risk within the reach of Labor Law § 240(1), as to whether plaintiff was provided with “devices which shall be so constructed, placed and operated as to give proper protection.” While plaintiff testified that he would ordinarily wear a harness for the type of work he was performing that day, he failed to establish “that there is a safety device of the kind enumerated in § 240(1) that could have prevented his fall, because liability is contingent upon the failure to use, or the inadequacy of such a device.”
With respect to Gilbane, the Court held that the documentary evidence raises triable issues as to whether Gilbane could be liable as the statutory agent of HRPT. Specifically, the proof raises issues as to whether Gilbane had the authority to control the work of plaintiff’s employer, particularly its compliance with safety requirements.
PRACTICE POINT: Whether a device of the sort contemplated by the statute could have prevented plaintiff’s fall presents a question of fact precluding summary judgment in plaintiff’s favor. With respect to construction managers of a work site, they are generally not responsible for injuries under Labor Law § 240(1). However, one may be vicariously liable as an “agent” of the 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 § 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.
Loaiza v Museum of Arts & Design
June 18, 2024
Appellate Division, First Department
Plaintiff fell to the ground while performing commercial window washing on the exterior of a building. The trial court denied plaintiff's motion for partial summary judgment on the Labor Law § 240 (1) claim.
Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court’s decision and granted the motion. Plaintiff’s proof demonstrated that his accident was proximately caused by a failure to provide him with safety devices offering adequate protection from falling. The Court further noted that it was undisputed plaintiff assembled the available safety equipment and used it throughout his performance of the work; and he wore a harness and remained attached to two ropes after tying off the ropes to anchor points. He also made sure his “lifeline”/safety line reached the ground. In support of their sole proximate cause argument, defendants relied on plaintiff’s admission that he forgot to tie a figure 8 knot at the end of the safety line, which is done as part of a fall arrest system to prevent a worker from hitting the ground.
Despite plaintiff having failed to perform this safety measure, the Court held this omission was at most comparative negligence, which is not a defense under Labor Law § 240(1). The recalcitrant worker defense was also unavailing since defendants failed to offer any evidence that plaintiff intentionally disregarded any specific safety instruction.
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. Since defendants could not offer any evidence as to the third element in this case, they were unable to rely on the sole proximate defense.
Ciaurella v Trustees of Columbia Univ. in the City of N.Y.
June 25, 2024
Appellate Division, First Department
Columbia hired ACC to be the general contractor for a project to renovate a building's 10th and 11th floors. Nonparty Liberty Demolition completed the demolition by the fall of 2018, at which point ACC began construction. The demolition resulted in numerous exposed holes where such units, ducts, and equipment were previously located. ACC's site superintendent instructed plaintiff to erect caution tape near the entrance to the interstitial space to keep certain workers from entering the hole-strewn area.
Plaintiff, an employee of ACC as a union shop steward and laborer, was walking along the space's floor to string up the caution tape and orange netting. As he stepped on the floor with his right foot, a section of the floor collapsed from beneath the area where his foot landed, and he was injured. The trial court denied plaintiff's motion for partial summary judgment on Labor Law § 240(1) liability against defendant Columbia.
Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court and granted plaintiff's motion for summary judgment under Labor Law § 240(1). It is not necessary that plaintiff establish the foreseeability of the exact collapse and injury that occurred; instead, plaintiff must simply demonstrate that it was foreseeable that the task he was performing in the interstitial space exposed him to an elevation-related risk. The Court held that defendant failed to raise an issue of fact as plaintiff’s exposure to an elevation-related risk in the 11th-floor interstitial space was not only foreseeable, but foreseen, by Columbia, whose project manager testified that prior to the incident he had expressed concerns to ACC regarding the hazard posed by the holes in the space’s floor to certain Columbia employees who might enter that space.
PRACTICE POINT: A plaintiff in a case involving the collapse of a permanent structure must establish that the collapse was foreseeable, not in a strict negligence sense, but in the sense of foreseeability of plaintiff’s exposure to an elevation-related risk. Here, plaintiff’s work in affixing the caution tape and orange netting around the hole-strewn interstitial space exposed him to an elevation-related risk, rendering him entitled to the extraordinary protections of the statute.
Lourenco v City of New York
June 27, 2024
Appellate Division, First Department
The City owned property and hired plaintiff's employer, Padilla, as the general contractor. Plaintiff's work involved demolishing and rebuilding part of Fordham Plaza, including the sidewalk. The accident occurred when plaintiff, while moving a long metal beam on his shoulder through a passageway, slipped and tripped on a large piece of plastic sheeting covering a rock. The trial court granted the City of New York's motion for summary judgment dismissing Labor Law §§ 241(6), 200, and common-law negligence claims against it, and denied plaintiff's motion for partial summary judgment as to liability on the Labor Law § 241(6) claim predicated on violations of Industrial Code §§ 23-1.7(d), 23-1.7(e)(1) and (2), 23-2.1(a)(1), 23-2.2(d), and 23-3.3(k)(1)(ii).
Labor Law § 241(6) (TPW)
The First Department unanimously modified the underlying decision to grant plaintiff's motion as to the Labor Law § 241(6) claim insofar as predicated on Industrial Code §§ 23-1.7(d) and 23-1.7(e)(1) and (2). As to Industrial Code §§ 23-1.7(d) ("Slipping Hazards”) the court determined the plastic debris found at the site constituted a "foreign substance" within the meaning of the statute. Further, as to Industrial Code §§ 23-1.7(e)(1) and (2) (Tripping and Other Hazards”) the court found the plastic and the rock were not integral to the work performed by plaintiff or his coworkers because it constituted an accumulation of debris from previous work that was left in a "passageway" or "working area" which should have been kept free of debris.
Labor Law § 200 and Common-Law Negligence (EDA)
The First Department unanimously reversed the trial court’s decision, finding that the City demonstrated that they did not have actual supervisory control over the means and method of plaintiff's work. The City's mere retention of the contractual privilege to override hazardous means and method of the work was insufficient to infer actual supervisory control. Similarly, the City's representatives' presence at the site and their inspections of the site were deemed insufficient to infer actual supervisory control.
However, the Court also found triable issues of fact as to whether the City had constructive notice of a dangerous or defective condition on the premises that was visible and apparent prior to plaintiff's accident, which was an alternate basis for liability under Labor Law § 200 and common law negligence.
Delaluz v Walsh
June 5, 2024
Appellate Division, Second Department
Walsh, a co-owner of the residence and the occupant of one of its units, hired BHI to renovate her second-floor bathroom. BHI's scope of work did not include the installation of granite. BHI's owner indicated that his company did not perform such work, prompting Walsh to hire nonparty Monumental to perform the granite work. Plaintiff, while installing granite, stepped onto a wooden slab covering a hole in the floor with his left leg, causing the slab to break, at which point his leg fell, up to his knee, through the slab and the ceiling of the kitchen. The trial court granted BHI’s motion for summary judgment dismissing the Labor Law §§ 241(6), 200 and negligence claims.
Labor Law § 241(6) (TPW)
Second Department affirmed the lower court’s dismissal of the Labor Law 241(6) cause of action as BHI established, prima facie, that it was not a general contractor for purposes of the Labor Law with respect to the plaintiff's work. Instead, BHI and Monumental were separate prime contractors with regard to the scope of work Walsh hired each to perform. Specifically, the evidence demonstrated that BHI and Monumental each contracted with Walsh but were not in privity with each other, and that each entity was responsible for distinct scopes of work. The evidence further showed that BHI had no presence on-site on the date of the accident and that BHI lacked the authority to direct, supervise, or control the plaintiff's work.
Labor Law § 200 and Common-Law Negligence (EDA)
The Second Department unanimously reversed the trial court’s decision to dismiss the common law negligence claim against BHI. The Court agreed with the trial court in dismissing the Labor Law § 200 claim as the law only applies to owners, contractors and their agents, and BHI did not have the duty to supervise, direct, or control Plaintiff’s work. However, it found a triable issue of fact as to whether BHI created the dangerous condition that caused plaintiff’s injury.
Espinoza v Tejeda
June 5, 2024
Appellate Division, Second Department
Plaintiff allegedly fell from the roof of defendants’ premises. Defendants answered, and although they denied the allegations regarding the premises being a multiple dwelling, they failed to assert the affirmative defense of the homeowners' exemption in their amended answer. After defendants rejected plaintiff's notice for discovery and inspection of the interior of the premises where the accident occurred, plaintiff moved, pursuant to CPLR § 3120(1)(ii), to direct defendants to allow him entry into the interior of the premises to inspect and photograph the rooms and facilities to determine whether the premises were divided into three separate apartments. The trial court denied plaintiff’s motion and granted defendants’ cross-motion for a protective order.
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s decision. Because the incident occurred on the exterior of the premises and because defendants failed to assert the homeowners’ exemption, the Court held that plaintiff failed to establish that access to the interior of the premises would yield matter “material and necessary” to the prosecution of the action. Moreover, the Court held that plaintiff's notice for discovery and inspection was palpably improper, which did not warrant any response.
PRACTICE POINT: It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims, and unsubstantiated bare allegations of relevancy are insufficient to establish the factual predicate regarding relevancy. Here, plaintiff could not establish that his demands would result in information “material and necessary” to his claims.
Charlot v City of New York
June 12, 2024
Appellate Division, Second Department
Plaintiff allegedly was injured in a construction site accident on December 8, 2020. He served notices of claim on defendants in June 2021, which were rejected as untimely. The trial court denied plaintiff's motion, pursuant to General Municipal Law § 50-e(5), for leave to deem the late notices of claim timely served and granted defendants’ cross-motion to dismiss the complaint for failure to timely serve notices of claim.
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s decision because plaintiff failed to provide a reasonable excuse for the failure to serve timely notices of claim on defendants. Plaintiff also failed to offer any explanation for the additional delay of seven months between the service of the late notices and the filing of the motion for leave to deem them timely served. The Court also found that plaintiff failed to establish that defendants received timely notice or actual knowledge of the essential facts surrounding the claim. Plaintiff also failed to show “some evidence or plausible argument” that granting the motion would not substantially prejudice defendants’ in maintaining their defense on the merits.
PRACTICE POINT: General Municipal Law § 50-e(5) requires service of a notice of claim within 90 days after the claim arises as a condition precedent to filing suit against a municipality, and authorizes a court, in its discretion, to extend that period. In determining whether to grant the extension, the statute directs the court to consider “in particular, whether the public corporation ... acquired actual knowledge of the essential facts constituting the claim within the 90-day period or within a reasonable time thereafter and to consider all other relevant facts and circumstances, including whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits. Other relevant facts include whether claimant set forth a reasonable excuse for the failure to serve a timely notice of claim. While the presence or the absence of any one of the factors is not necessarily determinative, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance. As plaintiff could not establish a single element in his favor in this case, plaintiff’s motion was properly denied.
Paiba v 56-11 94th St. Co., LLC
June 20, 2024
Appellate Division, Second Department
Plaintiff allegedly sustained injuries when he fell from a wooden A-frame ladder at a residential building owned and/or operated by defendants. At the time of the accident, plaintiff was repairing a large hole in the ceiling. The trial court denied plaintiff's motion which was for summary judgment under Labor Law § 240(1).
Labor Law § 240(1) (MAS)
The Second Department reversed the trial court and granted plaintiff’s motion because plaintiff’s deposition testimony established that the unsecured ladder moved and fell, causing him to fall. In opposition, the Court held that defendants failed to raise a triable issue of fact as to whether plaintiff’s own acts or omissions were the sole proximate cause of his injuries.
PRACTICE POINT: This is the classic Labor Law § 240(1) fall-from-a-ladder fact-pattern, and unless defendants can raise an issue of fact on the sole proximate cause defense or point to facts in the record contradicting the injured worker’s version of how the incident occurred, or calling his or her credibility into question, then the injured worker is entitled to partial summary judgment on liability.
Sanchez v Congregation of Emanuel of Westchester
June 20, 2024
Appellate Division, Second Department
Plaintiff was employed by A-1 Roofing on a project to repair and replace parts of a roof that had sustained water leaks on a building owned by defendant. He was injured when a portion of the roof on which he was standing collapsed, and he fell fifteen to eighteen feet to the cement floor below. The trial court denied plaintiffs’ motion for summary judgment on the Labor Law § 240(1) claim.
Labor Law § 240(1) (MAS)
The Second Department reversed the trial court’s decision and granted plaintiff's motion under Labor Law § 240(1). Plaintiffs’ demonstrated that the need for safety devices to protect plaintiff from an elevation-related hazard was foreseeable, as he was replacing wood decking on a pitched, elevated roof that had sustained water leaks, and that his injuries were proximately caused by the lack of adequate safety devices. In opposition, the Court held that defendant failed to raise a triable issue of fact. Accordingly, the trial court should have granted plaintiff’s motion.
PRACTICE POINT: For liability to be imposed under Labor Law § 240(1), there must be a foreseeable risk of injury from an elevation-related hazard, and defendants are liable for all normal and foreseeable consequences of their acts. Thus, to establish a § 240 claim, a plaintiff must demonstrate that the risk of injury from an elevation-related hazard was foreseeable, and that an absent or defective protective device of the type enumerated in the statute was a proximate cause of the injuries alleged.
Valentin v Stathakos
June 26, 2024
Appellate Division, Second Department
On the day of his accident, the plaintiff was an employee of Class One, who was tasked with demolishing a parapet wall surrounding the roof of a one-story building under renovation. The property was owned by Bill Stathakos and managed by 1413 Fulton Management (the “Fulton defendants”). Plaintiff was descending an internal ladder, which was permanently affixed at its top end to a roof access opening, when the ladder detached from its holdings, causing him to fall and the ladder to land on him.
The trial court denied plaintiff's motion for summary judgment on the Labor Law § 240(1) claim and granted the motion of defendants/third-party plaintiffs for summary judgment dismissing the Labor Law § 200 and common-law negligence claims and on their third-party claims for contractual indemnification against Class One.
Labor Law § 240(1) (MAS)
The Second Department affirmed that portion of the trial court’s decision finding that plaintiff was exposed to an elevation risk protected under the statute because the ladder collapsed for no apparent reason, and the inadequately secured ladder was a proximate cause of his injuries. However, the Court reversed the trial court’s decision because the double hearsay testimony of Class One, when combined with his limited non-hearsay submissions, was insufficient to raise a triable issue of fact as to whether plaintiff was actually engaged in a statutorily protected activity at the time of his fall.
PRACTICE POINT: In response to a properly supported motion for summary judgment, the burden shifts to defendant to raise a triable issue of fact as to whether plaintiff was engaged in an enumerated activity, whether plaintiff was recalcitrant in deliberately failing to use available safety devices, or that there was no statutory violation and that plaintiff's own acts or omissions were the sole proximate cause of the incident. In this case, defendants could not meet their burden of proof. Remember, while hearsay may be considered in opposition to a summary judgment motion, it is insufficient to raise an issue of fact where it is the only evidence on which the opposition to the motion was predicated.
Labor Law § 200 and Common-Law Negligence (EDA)
The Second Department unanimously reversed the trial court’s decision to deny the defendants third-party plaintiffs’ motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims against them. It found that the Fulton defendants failed to establish their entitlement to judgment as a matter of law that they lacked actual or constructive notice of the allegedly dangerous condition of the ladder, which plaintiff described in his deposition as rusty and old. They also failed to establish that they lacked control over plaintiff’s work.
Indemnity Issues in Labor Law (PCSM)
The Second Department reversed the trial court’s decision and denied their motion for contractual indemnity claim against Class One. The Court held that since there were triable issues of fact as to whether the Fulton defendants were free from negligence regarding plaintiff's accident, summary judgment on the claim for contractual indemnification was not warranted.
New York Industrial Code Regulations (EDA)
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Note from David R. Adams:
