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Cioppa v ESRT 112 W. 34th St., L.P.
November 7, 2024
Appellate Division, First Department
Plaintiff fell after stepping into a hole in a piece of plywood and then into a hole in the floor. The plywood was used as temporary flooring over an unfinished and uneven concrete floor. The trial court granted the motions of Americon Construction and Ess & Vee Acoustical (collectively “defendants”) for summary judgmentn alleged violation of Industrial Code (12 NYCRR) § 23-1.7(e)(2) and denied plaintiffs' motion for partial summary judgment on that claim.
 Labor Law § 241(6) (TPW)
The First Department affirmed the trial court’s decision to grant summary judgment to defendants dismissing the Labor Law § 241(6) claim based on an alleged violation of Industrial Code § 23-1.7(e)(2). That Industrial Code section states: "Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed."
The court held that § 23-1.7(e)(2) did not apply to all potential tripping hazards but only to "accumulations of dirt and debris," "scattered tools and materials," and "sharp projections." As plaintiff admitted in his deposition testimony, the perforated plywood board on which he tripped had been deliberately placed on the stripped floor as a protective measure, in response to plaintiff's own complaints. Thus, as a matter of law, the plywood board, notwithstanding its hole, could not be described as an "accumulation of . . . debris" or as part of a "scatter[ing]" of "tools and materials". Since the plywood was not a hazard within the scope of the Industrial Code provision, the court declined to consider whether the use of a perforated plywood board was integral to the work.
Antonio v VS 125 LLC
November 12, 2024
Appellate Division, First Department
Plaintiff testified that the bit on the chipping gun she was using kept getting stuck, that she informed her supervisor it was jamming, and that the supervisor directed her to continue using it. The bit of the chipping gun suddenly spun injuring plaintiff. The trial court denied VS’s and Time Square's motion for summary judgment dismissing the Labor Law § 241(6) claim.
Labor Law § 241(6) (TPW)
The First Department affirmed that portion of the trial court’s decision denying defendants' motion for summary judgment dismissing the Labor Law § 241(6) claim based on an alleged violation of Industrial Code §§ 23-1.5(c) and 23-9.2(a). The court found that even if defendants met their initial burden, plaintiff raised triable issues of fact as to whether the chipping gun was in sound and operable condition or had an unsafe condition that necessitated repair. Plaintiff testified that the bit kept getting stuck, that she informed her supervisor that it was jamming, and that the supervisor directed plaintiff to continue using it, before the bit suddenly spun, injuring plaintiff.
Onofre v 243 Riverside Dr. Corp.
November 12, 2024
Appellate Division, First Department
Defendants purported in their motion papers to seek leave to amend the third-party complaint and to seek partial summary judgment as against Kostan. The notice of motion requested only summary judgment "dismissing plaintiff's complaint along with all crossclaims, and for such other and further relief as this Court deems just and proper." The trial court denied 243 Riverside’s and Nova’s motion for leave to amend the third-party complaint and for summary judgment on liability on the third-party contractual indemnification claim as against Kostan.
 Indemnity Issues in Labor Law (PCSM)
The First Department, citing CPLR § 2214(a), affirmed the trial court’s decision, which properly deemed the notice of motion to be defective as to 243 Riverside’s and Nova’s third-party claims against Kostan. According to the court, the language in the notice failed to specify the relief sought and against whom it was sought. An order granting leave to amend a third-party complaint and an order granting summary judgment on a third-party indemnification claim are both “dramatically unlike” summary dismissal of plaintiff's Labor Law and negligence claims arising from his construction site accident, which was the relief requested in the notice of motion.
Kalaf v PSEG Long Is. LLC
November 14, 2024
Appellate Division, First Department
Plaintiff worked for JNR in connection with a project involving replacing utility lines for PSEGLI. At the time of plaintiff's accident, his assignment was to fill holes, which had been made by the removal of wooden utility posts, with mulch, using a truck and a bark blower machine. On the day of the accident, the metal blades in the bark blower machine's auger were frozen. He was injured while attempting to remove ice from the bark blower machine, when his hand got caught in the blades of the auger. The trial court denied defendants' motion for summary judgment dismissing the Labor Law § 241(6) and common-law negligence claims and on their common-law indemnification claim against JNR.
Labor Law § 241(6) (TPW)
The First Department affirmed the trial court’s decision to deny defendants' motion for summary judgment seeking dismissal of the Labor Law § 241(6) claim as defendants failed to establish that plaintiff was not a covered worker under the statute. The evidence showed that plaintiff traveled to the site of his accident for the purpose of continuing work he had previously been engaged in performing, and defendants have not established that plaintiff's work of filling holes following defendants' removal of the wooden utility posts was not covered under the statute. Further, the court found defendants failed to establish that the area appurtenant to the substation was not a covered location. Likewise, the court held that defendants could not establish that plaintiff was the sole proximate cause of his accident as there were issues of fact as to whether plaintiff unintentionally stuck his hand into the bark blower machine after slipping on ice.
 Labor Law § 200 and Common-Law Negligence (EDA)
The First Department affirmed the trial court’s finding that defendants did not establish their lack of notice as to any dangerous condition causing the accident, including the possibly icy condition of the ground.
Indemnity Issues in Labor Law (PCSM)
In finding that defendants failed to establish their lack of notice as to any dangerous condition causing the accident, including the possibly icy condition of the ground, the First Department affirmed the trial court’s denial of summary judgment in favor of defendants as to their common-law indemnification claim against JNR.
Travalja v 135 W. 52nd St. Owner LLC
November 19, 2024
Appellate Division, First Department
Decedent, the owner of Crowne, was working on the 47th-floor roof of the property owner's building as part of a renovation project managed by New Line. While examining an issue with the drainage near the edge of the north side of the roof, decedent fell over the 18-inch-high parapet wall and plunged 46 stories to his death. The trial court granted plaintiff's motion for partial summary judgment on the Labor Law §§ 240(1) and 241(6) claims as against 135 West 52nd Street Owner, LLC (“Owner”) and New Line, denied the cross-motion of Owner, New Line, and Chetrit for summary judgment dismissing those claims against them, denied New Line's cross-motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims as against it, and denied their cross-motion for summary judgment on their contractual and common-law indemnification claims against Crowne.
 Labor Law § 240(1) (MAS)
The First Department reversed the trial court’s decision, in part, by granting Chetrit’s motion for summary judgment dismissing the complaint as against it. As plaintiff does not contest, Chetrit was not an owner of the building nor a statutory agent. Therefore, Chetrit cannot be held liable for decedent’s death as it was not a proper Labor Law defendant.
The Court affirmed summary judgment in favor of plaintiff against Owner and New Line because a Crowne employee who witnessed the accident testified that decedent was wearing a safety harness, but there were no proper tie-offs, lifelines, or rope grabs on the roof where he fell. This testimony was unrefuted as photos taken after the incident did not depict any anchor points for safety harnesses or other fall protection equipment. Plaintiff’s expert reviewed the deposition testimony, photos, accident reports, and official documents, and he concluded that the lack of adequate safety devices proximately caused the incident.
In opposition, the Court held that defendants failed to raise a triable issue of fact as to whether decedent knew that proper tie-offs for his safety harness were available but chose not to use them for no good reason. Although they contend that warning signs posted on the roof doors instructed decedent to tie-off his safety harness, the Crown witness testified that he never saw any signs before the incident. Even if decedent saw warning signs, the Court noted that “an instruction ... to avoid ... engaging in unsafe practices is not itself a ‘safety device.’”
PRACTICE POINT: Remember the four essential elements of the sole proximate cause (“SPX”) defense under Labor Law § 240(1): (1) plaintiff had adequate safety devices available; (2) plaintiff knew both that the safety devices were available and that he or she was expected to use them; (3) plaintiff chose, for no good reason, not to do so; and (4) would not have been injured had he or she not made that choice. Without all four elements, this defense will not succeed. Here, defendants did not offer any evidence of the availability of anchor points, lifelines, or rope grabs at the time and around where decedent fell; therefore, the SPX defense was not available.
Labor Law § 241(6) (TPW)
Considering the grant of plaintiff's motion for partial summary judgment on the Labor Law § 240 claim, the remaining arguments regarding plaintiff's claims under Labor Law § 241(6) were deemed academic.
Labor Law § 200 and Common-Law Negligence (EDA)
The First Department affirmed the trial court’s decision since New Line failed to establish that it lacked notice of a defective condition of the premises causing decedent's fall (see Dirschneider v Rolex Realty Co. LLC, 157 AD3d 538, 539 [1st Dept 2018]; Giuffrida v Metro N. Commuter R.R. Co., 279 AD2d 403, 404 [1st Dept 2001]). A New Line employee testified that he regularly visited the roof and was aware that the low parapet wall and the lack of a guardrail presented a potential falling hazard, and another witness testified that a different New Line employee was present on the roof and observing the area at the time decedent fell.
Indemnity Issues in Labor Law (PCSM)
The First Department reversed the trial court’s decision and granted contractual indemnification to Owner and Chetrit since any liability of those defendants was purely vicarious.
As to New Line’s contractual indemnification claims against Crowne, the court reasoned that issues of fact as to New Line’s negligence could only allow for conditional contractual indemnification. While the contract between New Line and Crowne contained an indemnification provision with a broad performance-of-the-work clause, which was triggered as the decedent fell while engaged in Crowne’s subcontracted work, New Line was required to show that it was free from negligence to be awarded unconditional contractual indemnification. The court affirmed the trial court’s denial of New Line’s motion their common-law indemnification claims against Crowne as too premature since there had not been any finding as to Crowne’s negligence.
Caminiti v Extell W. 57th St. LLC
November 21, 2024
Appellate Division, First Department
Pasquale Caminiti (“decedent”) was working as an electrician installing wires and cabling on a ladder on January 3, 2012. A colleague, Robert Munoz, went over to decedent who complained he had chest pains and subsequently collapsed into him. Munoz noticed that the ladder was upright. Decedent was taken to the hospital where he was diagnosed with an aortic tear and underwent surgery. Decedent passed away on January 18, 2012 because of complications from surgery. The trial court denied plaintiff's motion pursuant to CPLR § 4404(a) to set aside the defense verdict and to order a new trial.
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s decision as the jury verdict finding that the violation of Labor Law § 240(1) did not proximately cause decedent’s aortic dissection was not against the weight of the evidence. Thus, the court held there was no basis to disturb the jury’s crediting of defendants’ expert testimony over plaintiff’s expert’s conflicting testimony.
Decedent’s primary care physician was properly impeached by his prior conviction on federal charges involving dishonesty and underlying facts. Although the court should not have allowed extrinsic evidence of physician’s divorce proceeding and administrative appeal, the court held that such error was not unduly prejudicial and did not warrant a new trial.
RACTICE POINT: The Appellate Division may not disregard a jury verdict as against the weight of the evidence unless the evidence is so preponderated in favor of the moving party that it could not have been reached on any fair interpretation of the evidence. In this case, there was no basis to disturb the jury’s crediting of defendants’ expert testimony over plaintiff’s expert’s conflicting testimony.
Cicale v Hines 1045 Ave. of the Ams. Invs. LLC
November 21, 2024
Appellate Division, First Department
Plaintiff was injured while trying to level a door buck when a two-to-six-inch metal “top track” of a door frame fell two-to-four inches onto his hand. According to plaintiff, the door frame shifted downwards, causing his hand to be immobilized. The trial court denied defendants' motion for summary judgment dismissing the Labor Law § 240(1) claim as against them.
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s decision because defendants failed to show that the accident did not arise from an elevation-related risk contemplated by the statute (see Czajkowski v City of New York, 126 AD3d 543 [1st Dept 2015] [affirming summary judgment for plaintiff under 240 where he was injured while removing a window frame and the “unsecured top half of the window fell out of the wall and crushed his hand”]).
PRACTICE POINT: Since the record showed that plaintiff was not provided any safety device to brace or otherwise support the door frame during his injury-producing work, that falling object was not adequately secured and thus summary judgment was appropriate awarded to the injured worker.
Fromel v W2005/Hines W. Fifty-Third Realty, LLC
November 21, 2024
Appellate Division, First Department
Plaintiff and his coworker, who were electricians working for Speiler & Ricca Electrical, testified that plaintiff sustained injuries to the back of his head and neck when an unsecured 4-inch by 4-inch formwork support beam measuring 10-15 feet fell from an elevated platform, striking him. The trial court denied plaintiff's motion for partial summary judgment on liability under his Labor Law § 240(1) claim.
Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court’s decision and granted plaintiff’s motion. Plaintiff established his entitlement to partial summary judgment under § 240(1) because his proof showed that the support beam was a load that required securing for the purposes of the undertaking. Further, the elevated platform was not guarded by a safety device such as netting or enclosure that would have prevented the beam from falling on plaintiff.
PRACTICE POINT: A plaintiff’s falling object case is not dependent on whether the injured worker had observed what hit him or her, or whether the object in question was dropped or fell in some other manner; rather, the injured worker must demonstrate that the lack of a protective device called for under Labor Law § 240(1) proximately caused his or her injuries. Accordingly, it did not matter that in this case, plaintiff and his coworker did not witness where the beam came from, as the injured worker is not required to show the exact circumstances under which the object fell, only that defendant failed to provide an adequate safety device to protect him or her from falling objects that were required to be secured.
Dolcimascolo v 701 7th Prop. Owner, LLC
November 26, 2024
Appellate Division, First Department
Plaintiff testified that he was injured when he was struck by a steel beam that was inadvertently caught on a crane hook during hoisting, causing it to slide off the truck where it had been placed. The trial court denied defendants' motion for summary judgment dismissing the complaint and granted plaintiff's motion for partial summary judgment on their claims pursuant to Labor Law §§ 240 (1) and 241(6).
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s decision. There was no evidence that plaintiff was ever directed not to be in the area where he was injured, and even if there was, defendants failed to show that they were free of any statutory violations. Thus, plaintiff’s allegedly being in an unauthorized area would have amounted only to comparative negligence, which is not a defense under § 240(1).
The trial court correctly refused to consider the C-2 and accident reports in that defendants failed to lay a foundation that they were admissible as business records. Even if admissible, the accident descriptions therein would not defeat plaintiff’s motion. While the C-3 was signed by plaintiff, its description of the accident was not inconsistent in any relevant aspect and thus not admissible under CPLR § 4514. Nor did the court err in considering plaintiff’s expert witness, who averred to over 30 years’ experience in coordinating and supervising rigging operations. Any objections to his qualification would go to the weight a jury grants to his testimony, not to its admissibility.
PRACTICE POINT: Fatal to defendants’ SPX argument here was the lack of evidence that plaintiff was ever directed not to be in the area where he was injured. It is critical to ensure that all four elements of your SPX argument are supported by the record and cannot be confused by the trial court as amounting to only comparative negligence. If even one element is missing or not supported by the record, then this defense will not succeed.
Labor Law § 241(6) (TPW)
The First Department concluded that plaintiff's Labor Law § 241(6) claim was academic in light of the grant of partial summary judgment on his Labor Law § 240 (1) claim.
Llach v L.I.C.C. Realty Co.
November 26, 2024
Appellate Division, First Department
Plaintiff was injured while performing work at a building owned by defendant. According to plaintiff, he was using a three-foot A-frame ladder to install a damper into a ceiling hole when the ladder shifted, causing him to fall. Notably, the parties did not dispute that this ladder was inappropriate and less stable for plaintiff’s use in performing the damper installation project due to the height differential between the ladder and ceilings of the medication rooms. Plaintiff testified that his supervisor had instructed him to quickly complete this project because of a looming building inspection. Against this imposed deadline, plaintiff looked in various places for a ladder more suitable for his task but could not find a taller ladder that was typically stored in the workshop of the building. The trial court denied defendant's motion for summary judgment dismissing the complaint and granted plaintiff's motion for summary judgment as to liability under Labor Law § 240(1).
Labor Law § 240(1) (MAS)
The First Department unanimously modified the trial court’s decision and granted defendant’s motion to the extent of dismissing all claims except the § 240(1) claim, finding that the record presented no issues of fact as to whether his own conduct was the sole proximate cause of his accident. Because the taller ladder was not readily available, plaintiff was constrained to use the shorter one, and his use of same “cannot be said to be the sole proximate cause of his injuries.”
PRACTICE POINT: Considering the circumstances of this case, plaintiff’s use of the shorter ladder cannot be said to be the SPX of his injuries.
Davila v City of New York
November 6, 2024
Appellate Division, Second Department
Plaintiff was working at defendants' construction site in Brooklyn when a 400-pound duct lift toppled off of an unsteady ramp and hit him. Plaintiff alleged, among other things, that Howell was the general contractor on the project and that AWL Industries, plaintiff's employer, was subcontracted to perform heating, ventilation, and air conditioning work and related duct work. The trial court granted defendants' motion for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims and denied plaintiff's cross-motion for summary judgment on those claims.
Labor Law § 240(1) (MAS)
The Second Department reversed the trial court’s decision to deny defendants’ motion, finding defendants failed to satisfy their burden. Although defendants submitted evidence establishing that the alleged elevation differential measured only 10 to 12 inches, given the heavy weight of the duct lift and the amount of force it could generate, the elevation differential was not de minimis. Moreover, the Court held that the trial court should have granted plaintiff’s cross-motion as his evidence demonstrated that defendants violated the statute by failing to provide an appropriate safety device, namely a secured ramp, to protect against the elevation-related hazard that was posed by maneuvering the heavy duct lift over the ramp.
PRACTICE POINT: The facts of this case are Runner reincarnated, and the statute was violated because defendants failed to provide an appropriate safety device (secured ramp) to protect against the elevation-related hazard that was posed by maneuvering the heavy duct lift over the ramp.
Labor Law § 241(6) (TPW)
The Second Department affirmed the trial court’s decision to grant defendants' motion for summary judgment dismissing the Labor Law § 241(6) claim and denied plaintiff's cross-motion. As the court noted, § 241(6) imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers. To recover damages under § 241(6), a plaintiff must establish the violation of an Industrial Code provision which sets forth specific safety standards. To establish entitlement to summary judgment, a defendant must show that plaintiff failed to identify a section of the Industrial Code that was allegedly violated, that any such section is insufficiently specific to support liability or is inapplicable to the facts of the case, or that defendant complied with the requirements of the identified provision.
The Court held that defendants established their entitlement to judgment as a matter of law dismissing the § 241(6) by demonstrating that no specific safety standard under 12 NYCRR § 23-1.22(b) was violated. In opposition, the Court held that plaintiff failed to raise a triable issue of fact as to that Industrial Code section.
Kharyshyn v West End 82, LLC
November 13, 2024
Appellate Division, Second Department
In January 2022, defendant hired nonparty D.R. Prut to perform construction work at its property. On June 10, 2022, plaintiff an employee of D.R. Prut, allegedly fell from a ladder while performing work at the property. Less than two months after filing its answer, defendant moved for summary judgment dismissing the complaint, contending, among other things, that it was exempt from the provisions of Labor Law §§ 240(1) and 241(6) as the owner of a one-family dwelling and that it did not have actual or constructive notice of any defect. In an order dated May 17, 2023, the trial court denied defendant's motion as premature, without prejudice to renew.
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s decision as the record established that discovery may lead to relevant evidence pertaining to whether defendant is exempt from the provisions of the Labor Law, as well as whether defendant had control over the work site and notice of any defective condition. Accordingly, the trial court properly denied defendant’s motion for summary judgment dismissing the complaint without prejudice to renew upon the completion of discovery.
PRACTICE POINT: A party opposing summary judgment is entitled to obtain further discovery when it appears that facts supporting the opposing party’s position may exist but cannot then be stated. This is especially true for trial courts where the motion was made prior to the party conducting depositions, such as is in this case.
Velasquez v RS JZ Driggs, LLC
November 13, 2024
Appellate Division, Second Department
Plaintiff was working on a project to construct a new building for RS JZ Driggs. Foremost Contracting was the general contractor on the project. According to plaintiff, who was employed as an ironworker by a subcontractor, he was injured when a piece of temporary plywood flooring "kind of came up," causing him to fall on a vertical column of rebar. The trial court denied defendants' motion for summary judgment dismissing the Labor Law § 241(6) claim as was predicated on an alleged violation of Industrial Code (12 NYCRR) 23-1.5(c)(3) and 23-1.7(e)(2).
Labor Law § 241(6) (TPW)
The Second Department affirmed the trial court’s order denying defendants' motion for summary judgment dismissing this claim alleging a violation of Labor Law § 241(6) predicated on an alleged violation of 12 NYCRR 23-1.5(c)(3) and 23-1.7(e)(2). Here, the Court held that defendants' submissions raised issue with whether the alleged defect in the temporary plywood flooring constituted a violation of § 23-1.5(c)(3). That Industrial Code section requires that “[a]ll safety devices, safeguards and equipment in use shall be kept sound and operable, and shall be immediately repaired or restored or immediately removed from the job site if damaged." Plaintiff testified that he fell because a piece of the temporary plywood floor in his work area "kind of came up." This presented a triable issue of fact as to whether the temporary plywood flooring—equipment necessary for the work being performed—was "sound and operable."
Further, the Court held that defendants' submissions failed to eliminate a triable issue of fact as to whether the vertical column of rebar in plaintiff's work area constituted a violation of 12 NYCRR § 23-1.7(e)(2). This Industrial Code provision requires that "[t]he parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed."
Accordingly, the Second Department held that the trial court properly denied that branch of defendants' motion without regard to the sufficiency of the opposition papers.
Yi Jiang Pai v Nelson Senior Hous. Dev. Fund Corp.
November 20, 2024
Appellate Division, Second Department
Plaintiff, an employee of the third-party defendant Kwok, was examining a recently installed fire sprinkler system when the A-frame ladder upon which he was standing fell from under him, causing him to fall and strike his head on the cement floor. The property was owned by Excelsior II and Excel Nelson (collectively “the Excelsior defendants”). The general contractor of the project was Riso. Riso contracted with VIS, who, in turn, contracted with Kwok to install the fire sprinkler system.
At his deposition, plaintiff testified that he was alone in the boiler room, standing on the third rung from the top of the ladder and spraying soapy water onto the sprinkler pipes to check for leaks, when the ladder unexpectedly “collapsed.” Kwok’s owner testified at his deposition that he was in a nearby room when he heard “a big boom” and that, when he entered the boiler room, he observed plaintiff on the floor and the ladder in an upright position. The owner also observed that an elbow joint pipe, which reportedly had been connected to an air-pressurized sprinkler system, was not several feet away, wedged between the wall and a pipe, and that white smoke was spewing from the pipe.
The trial court denied plaintiffs' cross-motions for summary judgment on the Labor Law § 240(1) claim and, pursuant to CPLR § 3126, to impose sanctions against Riso, VIS and the Excelsior defendants, and Kwok for spoliation of evidence. The trial court also denied the cross-motion of Viso and the Excelsior defendants for summary judgment on the third-party cause of action for contractual indemnification.
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s decision to deny plaintiff’s motion, finding a triable issue of fact was raised by defendants as to whether the ladder was defective or unsecured. While the spoliation of the elbow joint pipe did not deprive plaintiffs of their ability to prove their claims so as to warrant the drastic sanction of striking an answer, under the circumstances of this case, the lesser sanction of directing that an adverse inference charge be given against the Excelsior defendants, Riso, VIS, and Kwok at trial with respect to the spoliation of the elbow joint pipe was appropriate.
PRACTICE POINT: Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party from being able to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleading. A party seeking sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind and that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense.
A culpable state of mind for purposes of spoliation sanction includes ordinary negligence. Striking a pleading is a drastic sanction to impose in the absence of willful or contumacious conduct, and to impose such a sanction, the court will consider the prejudice that resulted from the spoliation to determine whether such drastic relief is necessary as a matter of fundamental fairness. Conversely, where the moving party has not been deprived of the ability to establish his or her case or defense, a less severe sanction is appropriate. The trial court has broad discretion to determine a sanction for the spoliation of evidence. In this case, the trial court correctly awarded the lesser sanction of the adverse inference charge at trial.
Indemnity Issues in Labor Law (PCSM)
The Second Department found that the lower court properly denied the branch of Excelsior defendants’ and Riso’s cross motion for summary judgment as to their contractual indemnification claims as they failed to demonstrate their entitlement to such.
Mejia v 69 Mamaroneck Rd. Corp.
November 27, 2024
Appellate Division, Second Department
While working as a roofer, plaintiff fell through a chimney opening in a flat roof and sustained injuries. He sued 69 Mamaroneck Road, the owner of the property, and JBD, the general contractor for the construction project, alleging violations of the Labor Law and common-law negligence. Plaintiff moved for partial summary judgment on liability under Labor Law §§ 240(1) and 241(6) claims against 69 Mamaroneck Road and JBD Development. In an order dated July 11, 2019, the Supreme Court granted the motion for summary judgment on the Labor Law § 241(6) and denied the motion regarding § 240(1). After plaintiff appealed that decision, the Second Department issued a decision and order dated March 9, 2022, reversing the July 2019 order to the extent it denied plaintiff's motion for summary judgment on Labor Law § 240(1) claim against 69 Mamaroneck Road and JBD (see Mejia v 69 Mamaroneck Rd. Corp., 203 AD3d 815).
In December 2018, plaintiff commenced a separate action against WR, the framing contractor on the project. The trial court consolidated the December 2018 action with this action. Thereafter, the trial court granted WR's motion and, upon searching the record, vacated so much of the July 2019 order granting plaintiff's motion for summary judgment on the Labor Law § 241(6) claim against 69 Mamaroneck Road and JBD and denied that branch of the motion.
Labor Law § 240(1) (MAS)
The Second Department reversed the trial court’s decision and granted WR’s motion for summary judgment seeking dismissal of the Labor Law §§ 240(1) and 241(6) claims insofar as asserted against it because it established that it was not an owner, general contractor, or agent of an owner or general contractor. There was no disputing that WR was not an owner or a general contractor on the project, and WR’s proof showed that it had no authority to control or supervise plaintiff’s injury-producing work.
PRACTICE POINT: Labor Law § 240(1) imposes on owners, general contractors and their agents, a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites. Labor Law § 241(6) imposes a nondelegable duty upon an owner, general contractor, and their agents “to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor.” An agent of an owner or general contractor “must have the authority to control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition.” Here, WR demonstrated it could not be held liable under either claim as it lacked the requisite authority to control plaintiff’s injury-producing work.
Labor Law § 200 and Common-Law Negligence (EDA)
The Second Department affirmed the trial court’s finding that WR established it did not create the dangerous condition and that it had no actual or constructive notice of it. WR's president testified at his deposition that while WR created the opening in the roof for a chimney, De Aguilar himself covered the chimney opening with three-quarter-inch plywood and secured the plywood with nails before the roofers, including the plaintiff, began their work. In opposition, the court held that plaintiff failed to raise a triable issue of fact as WR had no supervisory authority with regard to plaintiff's injury-producing work.
DiNieri v Schimmelpennick
November 15, 2024
Appellate Division, Fourth Department
Plaintiff was injured when the scaffolding on which he was standing collapsed while he was working on the construction of an addition to a single-family home owned and occupied by Nicholas D. Schimmelpennick and Meghan R. Schimmelpennick (collectively “Defendants”). The trial court granted Defendants’ motion for summary judgment dismissing the amended complaint against them.
Labor Law § 240(1) (MAS)
The Fourth Department affirmed the trial court’s decision and rejected plaintiff’s claim that Defendants failed to meet their initial burden on the motion of demonstrating that the homeowner’s exemption applies to them and that, even if they did, he raised a triable issue of fact whether the exemption applies. Defendants’ submission established that they are the owners of the one-family dwelling where plaintiff was working, that they neither directed nor controlled plaintiff’s work, and that the home had no commercial purpose. In opposition, the Court held that plaintiff failed to raise a triable issue of fact as to whether Defendants directed or controlled his work or whether the premises were being operated exclusively for commercial purposes.
PRACTICE POINT: Labor Law §§ 240 and 241(6) exempt from liability owners of one- and two-family dwellings who contract for but do not direct or control the work. Whether an owner’s conduct amounts to directing or controlling depends on the degree of supervision exercised over the method and manner in which the work is performed. The existence of both residential and commercial uses on a property does not automatically disqualify a dwelling owner from invoking the exemption. In this case, defendants unquestionably met their burden of proof and plaintiff failed to raise a triable issue of material fact in opposition to Defendants’ motion.
Labor Law § 200 and Common-Law Negligence (EDA)
The Fourth Department affirmed the trial court’s decision that Defendants met their initial burden of demonstrating that they exercised no supervisory control over the injury-producing work and that the accident arose from plaintiff's methods and manner of work (see Lombardi v Stout, 80 NY2d 290, 295 [1992]; Gillis v Brown, 133 AD3d 1374, 1376 [4th Dept 2015]), and the court held that plaintiff failed to raise a triable issue of fact in opposition.
New York Industrial Code Regulations (EDA)
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Note from David R. Adams:
