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Dibrino v Rockefeller Ctr. North, Inc.
July 2, 2024
Appellate Division, First Department
On the morning of the accident, plaintiff used a Jacobson six-foot A-frame ladder and a rolling Baker scaffold to take measurements and mark out the soffit along the ceiling in the building's fifth-floor pantry in preparation for installing a specialty ceiling feature. All the workers had unrestricted access to the floor. After plaintiff completed his task, he disassembled the scaffold and brought it and the ladder to another location on site to perform a different task. During plaintiff's lunch break, a fellow Jacobson employee informed him that the measurements needed to be checked. Plaintiff returned to the fifth-floor pantry with his foreman to review the measurements. He did not retrieve a Jacobson ladder or rolling scaffold but used a six-foot A-frame ladder set up in an open position in the area. He did not ascertain who owned the ladder before using it. He climbed up and down the ladder several times, confirming measurements, for 15 minutes. He then climbed to the second or third rung of the ladder to begin measuring above his head. The ladder moved and wobbled, and plaintiff lost his balance. He tried to jump off the ladder to avoid injury, but his foot became stuck in one of the rungs and he fell. At the time of his accident, plaintiff did not know who owned the ladder. He learned later that it was owned by DAL, who did not supply plaintiff with the ladder or give him permission to use it.
The trial court granted plaintiffs' motion for partial summary judgment under Labor Law § 240(1) claim, denied DAL's motion for summary judgment dismissing plaintiffs' Labor Law § 200 and common-law negligence claims and defendants' contractual indemnification crossclaim as against it, and granted defendants' cross-motion for summary judgment on their contractual indemnification crossclaim against DAL.
 Labor Law § 240(1) (MAS)
The First Department affirmed the trial court’s decision to grant plaintiff’s motion as he met his burden of establishing that defendants failed to properly secure the ladder against movement or slippage and to ensure it remained steady and erect while plaintiff was on it. DAL argued on appeal that reports created shortly after plaintiff’s fall demonstrated that it was caused by his overreaching and failure to maintain three points of contact with the ladder. The Court held that none of those reports were created by anyone with personal knowledge of the circumstances surrounding the incident. The Court noted that even if plaintiff fell because he lost his footing on the ladder, this does not defeat plaintiffs’ claim.
PRACTICE POINT: When relying on reports, it is imperative to know the source of the information contained in the reports because courts look to see if they were created by anyone with personal knowledge of the circumstances surrounding the incident. Here, the defense could not rely on the accident report indicating the fall was caused by overreaching and failure to maintain three points of contact with the ladder because those reports relied on statements by plaintiff’s foreman, who was present with plaintiff when he fell, and who admittedly was not looking directly at plaintiff when he fell and only saw the ladder moving in his peripheral vision. Thus, the defense could not raise an issue of fact by relying on the contents of the reports since they were not based on personal knowledge.
Even if the defense could prove that plaintiff was overreaching before he fell, this would have amounted to only comparative negligence, which is not a defense to a Labor Law 240(1) claim.
 Labor Law § 200 and Common-Law Negligence (EDA)
The First Department reversed the trial court’s decision, finding that DAL did not enter into a contract with plaintiff or his employer, as a duty of care to plaintiff cannot arise out of a contractual relationship (see Espinal v Melville Snow Contrs., 98 NY2d 136, 138 [2002]) As to the Espinal factor of reliance, there was no evidence plaintiff relied on DAL because plaintiff received his instructions and equipment from his foreman, not DAL. Concerning the displacement factor, the record is devoid of evidence that DAL displaced Jacobson's, plaintiff's employer, duty to oversee plaintiff's work, or JRM's duty to ensure the safety of the worksite. That leaves the issue of whether DAL launched a force or an instrument of harm to warrant the imposition of a duty of care on DAL for plaintiff's benefit. Even if DAL furnished the ladder, it was entitled to dismissal of all claims against it because it "was not in contractual privity with [the] plaintiff's employer, . . . had no supervision, direction or control over [the] plaintiff's work, and . . . had no duty to provide [the plaintiff] with equipment adequate for the performance of his work" (Vargas v New York City Tr. Auth. 60 AD3d 438 [1st Dept 2009]).
The dissent found a question of fact because the ladder appeared to have been marked as defective and was still allowed to be in the working area creating a foreseeable defective condition.
 Indemnity Issues in Labor Law (AMC)
The Appellate Division held that dismissal of defendants' contractual indemnification crossclaim is warranted. The three indemnification provisions in defendants', JRM’s and Rockefeller’s, subcontract with DAL contain scope-of-work triggers. Meaning, DAL is contractually obligated to indemnify defendants for accidents arising out of the scope of its work.
In defining the scope of DAL's work, defendants point to a provision requiring DAL to “provide, or cause to be provided, to each of [its] employees or agents, the proper safety equipment for the duties being performed by that worker and [ ] not permit any worker to perform any part of the Work who fails or refuses to use same.” However, it is undisputed that plaintiff was not DAL's employee or agent; nor is there any evidence that plaintiff was injured due to a DAL employee's performance or completion of a task that DAL was contractually obligated to do. Thus, the scope-of-work provision was not triggered
Although at least one of the indemnification provisions in the subcontract requires DAL to indemnify defendants for any claims arising out of “the negligence or willful misconduct or negligent acts or omissions of [DAL] or [its] ... employees,” this clause also was not triggered in light of the Appellate Division’s dismissal of plaintiff's common-law negligence claim.
Rivera v 712 Fifth Ave. Owner LP
July 2, 2024
Appellate Division, First Department
Plaintiff was working in defendant’s building, which was undergoing demolition and renovations. Specifically, plaintiff was directed to remove metal ductwork from the ceiling of a bathroom. He was provided an A-frame ladder to reach the ductwork, located 10 to 12 feet above the floor. No other safety device was provided to plaintiff. He initially performed the work with another worker; however, on the day of the accident, no other person was assigned to assist him with the ductwork removal. He was standing on the fourth rung of the ladder, cutting a portion of the ductwork, when it suddenly fell and hit him and the ladder. The impact of the duct caused plaintiff and the ladder to tip to the left and fall to the floor.
The trial court denied plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim against defendant.
Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court and granted plaintiff's motion for partial summary judgment under Labor Law § 240(1) because plaintiff’s testimony that he was not provided with any other safety protection except an unsecured ladder, which fell along with plaintiff when both were struck by the duct.
In opposition, the Court held that failed to raise a triable issue of fact as to whether plaintiff was the sole proximate cause of his accident. Defendant pointed to two accident reports in which the authors stated they were told that plaintiff lost his balance, but there were not any witnesses to the accident. Neither report was corroborated by sworn deposition testimony, nor did they identify the source of the information. The reports consist entirely of hearsay and are insufficient to warrant denial of plaintiff’s motion for partial summary judgment.
The Court found that defendant’s expert affidavit to be based solely on speculation because the expert did not examine the ladder, the ductwork, or the room in which the ductwork was located. Moreover, his assertion that the ladder was not defective and that if the ladder fell, the fall was caused by plaintiff, was mere conjecture and insufficient to rebut plaintiff’s testimony.
PRACTICE POINT: This is a classic fall from a ladder fact-pattern warranting summary judgment as plaintiff need only show that adequate safety devices to prevent the ladder from slipping or to protect plaintiff from falling were absent and that the failure to secure the ladder was the proximate cause of his injuries. Plaintiff was not required to prove the ladder was defective or that the ladder fell. That plaintiff was the sole witness to the accident also does not preclude summary judgment.
Rowe v 4601 Second Ave, LLC
July 10, 2024
Appellate Division, Second Department
On November 23, 2014, plaintiff allegedly was injured when he fell from scaffolding while working in a building owned by 4601 Second Ave. Plaintiff commenced this action in October 2016 against 4601 Second Ave, alleging violations of Labor Law §§ 240(1), 241(6), and 200. In April 2019, plaintiff moved, among other things, pursuant to CPLR 3025(b) for leave to amend the complaint to add Volmar, a general contractor that leased a portion of the premises, as a defendant. The trial court granted plaintiff's motion.
Labor Law § 240(1) (MAS)
The Second Department reversed the trial court’s decision as it was undisputed that plaintiff’s motion was made outside of the three-year statutory limitations period and plaintiff failed to demonstrate that 4601 Second Ave., as the owner, and Volmar, as either the lessee or general contractor, have exactly the same jural relationship since, among other things, they have different defenses available to them under Labor Law §§ 240(1), 241(6), and 200. Thus, they are not united in interest, and plaintiff’s claims against Volmar do not relate back to the time of commencement of the action against 4601 Second Ave.
PRACTICE POINT: The relation-back doctrine allows claims asserted against a new defendant in an amended complaint to relate back to claims previously asserted against a codefendant in the same action for statute of limitations purposes. To establish the applicability of the doctrine, a plaintiff must demonstrate (1) the claims arose out of the same conduct, transaction, or occurrence; (2) the new party is united in interest with one or more of the original defendants, and by reason of that relationship can be charged with such notice of the institution of the action that he or she will not prejudiced in maintaining his or her defenses on the merits; and (3) the new defendant knew or should have known that, but for a mistake by plaintiff as to the identity of the proper parties, the action would have been commenced against him or her as well.
To establish a unity of interest between two defendants, more is required than a common interest in the outcome. That two defendants may share resources such as office and employees is not dispositive, and they must share the same jural relationship in the subject action. Defendants are not united in interest if the new party could have a different defense than the original party.
Amaro v New York City Sch. Constr. Auth.
July 31, 2024
Appellate Division, Second Department
Plaintiff was injured when he was traversing a scaffold and a wooden plank he stepped onto broke, causing him to fall. He testified that he was wearing a safety harness with a lanyard attached when he fell. A coworker asked for assistance and materials to affix the scaffold to a particular wall. Plaintiff did not tie the lanyard to the scaffold frame while walking on the scaffold to his coworker because he was carrying a pipe in one hand and a clamp in the other, and therefore was not able to unhook and re-hook the 4-foot-long lanyard to travel the 20-foot distance to the wall. When he was five feet away from his coworker, the wooden plank he stepped on broke, causing him to fall.
The trial court denied plaintiffs' summary judgment under Labor Law § 240(1), concluding that triable issues of fact existed as to whether plaintiff’s failure to tie his lanyard to the scaffold frame was the sole proximate cause of his injuries and whether plaintiff was a recalcitrant worker.
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 established that the statute was violated, and that the violation was a proximate cause of plaintiff’s injuries. The undisputed evidence demonstrated that plaintiff was subjected to the elevation-related risk of the wooden plank, which broke suddenly, causing plaintiff to fall.
In opposition, the Court held that defendants failed to raise a triable issue of fact as to whether plaintiff’s own conduct was the sole proximate cause of his injuries. Since plaintiffs established a violation of the statute and that it was a proximate cause of the fall, plaintiff’s comparative negligence, if any, is not a defense to the claim. Moreover, the Court found that defendants did not present evidence that plaintiff was recalcitrant in the sense that he was instructed to tie and untie his lanyard to traverse the scaffold and refused to do so.
PRACTICE POINT: Although comparative fault is not a defense to the absolute liability of Labor Law 240(1), where plaintiff is the sole proximate cause of his or her own injuries, there can be no liability under the statute. A plaintiff may be the sole proximate cause of his or her own injuries when, acting as a recalcitrant worker, he or she (1) had adequate safety devices available; (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; and (4) would not have been injured had he or she not made that choice. Here, defendants failed to demonstrate that plaintiff was instructed to tie and untie his lanyard to traverse the scaffold and unreasonably refused to do so. Thus, defendants could not establish the third and fourth elements.
Dennis v Cerrone
July 3, 2024
Appellate Division, Fourth Department
Plaintiff was injured while working for a framing subcontractor on a residential construction project. The owner, Cerrone, served as his own general contractor on the project, which involved building a 900-square-foot addition to his home. The accident occurred when plaintiff fell through an unguarded hole in the first-floor decking that was cut to accommodate a basement stairwell that had yet to be installed. Plaintiff landed on the cement basement floor nine feet below.
The amended complaint asserted claims against Cerrone and MCI, a contracting business partially owned by Cerrone, for violations of Labor Law §§ 240(1), 241(6), 200 and common-law negligence. Following discovery, the trial court issued an order granting Cerrone's cross-motion for summary judgment dismissing the amended complaint against him and granted MCI's cross-motion for summary judgment dismissing the Labor Law § 240(1) claim. The Fourth Department modified that order by denying MCI's cross-motion in its entirety and reinstating the 240(1) claim and otherwise affirmed.
Upon remittal, the matter proceeded to a nonjury trial on all four claims against MCI, the only remaining defendant. At the close of plaintiff's case, the trial court granted a directed verdict to MCI, but on appeal the Fourth Department reinstated the amended complaint against MCI and granted a new trial. Viewing the evidence in the light most favorable to plaintiff, it concluded that there was "a rational process by which a factfinder could find that MCI had either the power to enforce safety standards and choose responsible contractors or the power to coordinate and supervise the overall project as required for liability under Labor Law §§ 240(1) and 241(6). With respect to the other claims, it concluded that there was a rational process by which a factfinder could determine that MCI is liable under Labor Law § 200 or the common law, i.e., that it had the ability to supervise and control the method and manner of work of plaintiff's employer, and that MCI actually exercised such authority.
At the retrial, the trial court sitting as the trier of fact, rendered a verdict in favor of MCI and plaintiff appeals since he claims he met his burden of proof on all claims.
Labor Law § 240(1) (MAS)
The Fourth Department unanimously affirmed the trial court’s decision. Although plaintiff introduced evidence at trial supporting his claim that MCI acted as a contractor, or the agent of a contractor, there was also ample evidence militating against a finding that MCI, as opposed to Cerrone himself, had the power to enforce safety standards and hire responsible contractors. Significantly, the two MCI employees who appeared periodically at the worksite testified they did not have authority to enforce safety standards or to direct or supervise any of the work, and their testimony was not contradicted by plaintiff, his employer or any other witness who performed work on the construction project. Not one person who performed work on the project testified that they believed that MCI had authority to enforce safety standards or to direct or control the work.
Viewing the record in the light most favorable to sustain the order and giving deference to the trial court’s credibility determinations, the Court held there is “a fair interpretation of the evidence” supporting the trial court’s verdict and found that verdict is therefore not against the weight of the evidence.
PRACTICE POINT: A verdict in a nonjury civil trial “should not be disturbed upon appeal unless it is obvious that the court’s conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses.” When appellate courts conduct their factual review power in a “close case,” they must consider “the fact that the trial judge had the advantage of seeing the witnesses” and must also view the evidence in the light most favorable to sustain the order or judgment. Applying that standard here, the Court gave deference to the trial court’s determinations and found the trial court’s verdict to be based on a fair interpretation of the evidence and not against the weight of the evidence.
Lamarr v Buffalo State Alumni Assn., Inc.
July 26, 2024
Appellate Division, Fourth Department
Plaintiff brought a Labor Law and common-law negligence action against the Buffalo State defendants as owners of the premises, and the Ciminelli defendants as construction managers, seeking damages for injuries plaintiff sustained in two construction-site accidents. Plaintiff was an employee of Huber, the subcontractor hired to install exterior wall systems. Huber purchased prefabricated exterior wall panels from Duraframe. Plaintiff's injuries arose from handling those wall panels on two different dates one month apart. Plaintiffs settled their action with the Buffalo State and Ciminelli defendants.
The trial court granted the summary judgment motion of the Buffalo State and Ciminelli defendants for contractual indemnification against Huber, awarded the Buffalo State and Ciminelli defendants' common-law indemnification against Huber and granted the summary judgment motion of Duraframe for, inter alia, conditional contractual indemnification against Huber.
Indemnity Issues in Labor Law (AMC)
The lower Court granted the Buffalo State and Ciminelli defendants’ contractual indemnification against Huber. Huber appealed and the Appellate Division agreed that said defendants are not entitled to contractual indemnification. Looking to the specific language of the contract, Huber was required to indemnify the Buffalo State and Ciminelli defendants for its own negligence, or the negligence of its subcontractors. As there are questions of fact as to whether plaintiff’s accident arose out of Huber’s or its subcontractors’ negligence, there is also an issue of fact as to whether the indemnification provision is applicable.
However, the Appellate Division held that the lower Court properly granted Duraframe’s motion seeking a conditional order of contractual indemnification against Huber. The Appellate Division rejected Huber’s argument that was no valid contractual indemnification provision between it and Duraframe. The Appellate Division, following well settled case law, held that there was objective evidence (a signed purchase order, and deposition testimony of representatives from Huber and Duraframe) establishing that the parties intended to be bound by an unsigned contract.
Ross v Northeast Diversification, Inc.
July 26, 2024
Appellate Division, Fourth Department
Plaintiff commenced this Labor Law and common-law negligence action seeking damages for injuries he sustained while he was working as a concrete finisher on a project for which Northeast was hired as the general contractor to install concrete sidewalks and pavement at an elementary school owned by Hamburg CSD. While performing that work, plaintiff allegedly slipped and tripped on stone and fell into an 8-to-12-inch-deep trench that had been cut into the blacktop to allow the installation of a curb.
The trial court previously granted plaintiff’s motion for summary judgment under Labor Law § 240(1), granted Hamburg CSD’s motion to dismiss the § 200 and common-law negligence claims and denied Northeast’s motion to for summary judgment dismissing the complaint. While the appeals were pending, the trial court conducted a damages-only trial, and the jury returned a verdict awarding plaintiff certain damages.
The Fourth Department shortly thereafter reversed the trial court’s decision and dismissed the § 240(1) claim because plaintiff’s work involved only the demolition and restoration of a sidewalk and thus the statute did not apply.
The trial court denied defendants posttrial motion, pursuant to CPLR 4404(a), to set aside the verdict on various grounds and grant a new trial.
Labor Law § 240(1) (MAS)
The Fourth Department unanimously affirmed the trial court’s decision that, although defendants are entitled to a trial on liability with respect to the remaining claims considering this court’s decision on the appeals, defendants are not entitled to a new trial on damages. The Court held that defendants did not preserve appellate rights by objecting at any time during the trial as to the comments made by plaintiff’s counsel to the jury that defendants were liable for plaintiff’s injuries.
PRACTICE POINT: Once an issue is correctly determined, it need not be tried again even though justice demands that another distinct issue, because erroneously determined must be passed on by a jury. Consequently, where the circumstances of a particular case indicate that justice can only be done by a completely new trial, then such should be ordered; where, however, the error affects only the determination of some of the issues, then the court may try only those issues. Generally, issues of liability and damages in a negligence action are distinct and severable and should be tried separately.
It is also well settled that an issue may not be raised for the first time on appeal where it could have been obviated or cured by factual showings or legal counter-steps in the trial court. Where, as here, defendants, as appellants, submitted an incomplete record that the Court repeatedly referred to as a “limited record,” they must suffer the consequences.
New York Industrial Code Regulations (EDA)
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Note from David R. Adams:
