|
Volume XIV, No. 11
Wednesday, October 1, 2025
|
|
 Note from David R. Adams:
Do you have a situation? We love situations. Give us a call, send an email, drop by; we truly enjoy solving complex Labor Law and Risk Transfer issues.
We have exciting news here at HF to start the Fall. We have added two “new to us”, but experienced, attorneys to the team here in Buffalo, Marten Violante and Jessica Deren. This is in addition to our team members here at the home office in Buffalo including myself, Eric Andrew and Tyler Eckert. In Rochester, we have team members Elizabeth Ognenovski and Bradon Carlson in our new office. In the New York metro area, we have Brian Mark, Patrice Melville, Ashley Cuneo and Joe Mendoza. That is 11 attorneys, across the state, ready to help with any of your Labor Law or Risk Transfer issues.
I would be remiss if I failed to mention that Hurwitz Fine has had 26 of our attorneys named as New York Super Lawyers this year. I would also like to point out that I had to buy my own cape and still have not figured out how to fly with it. All kidding aside, it is an honor to work with so many truly talented attorneys every day.
For our first photo this month, I took one of my favorite scenarios and generated the photo with AI. Here we have a situation where a church has a leaking roof and gutter system. A parishioner, who owns a roofing company, volunteers to have the roof and gutter repaired for free. The church was so happy that they hadn’t even signed a contract, as they were not being charged for the work. The parishioner sent a crew over, free of charge. Unfortunately, one of his workers fell from the roof because there were no harnesses in the truck, even though he had been instructed to always wear one. There were plenty of harnesses at the shop, had anyone thought to put them in the truck, which was parked just a few feet from the site of the fall. § 240(1)?
No good deed ever goes unpunished. The owner, the church, is a valid defendant as they own the building. The work is repair and the injury was caused by an elevation differential. As to the sole proximate cause defense, the plaintiff was not provided with an appropriate safety device as the harnesses were not on site and thus the sole proximate cause defense fails. The real issue here is that while the roofing company is doing the work for free and it would seem to be a volunteer doing the work, in fact the plaintiff was a person so employed as he was being paid by the roofing company and thus a valid plaintiff. It is not enough that the work was being done for free for the church, but the issue is whether or not the plaintiff is a “person so employed” and thus a valid plaintiff. Here we will likely have summary judgment for the plaintiff on § 240(1).
In our second photo for the month, the plaintiff was operating a crane while building a new office building. The crane had just been serviced before the job began but the tower crane being used to erect the building suddenly fell to the side and down to street level. There were miraculously no injuries at ground level, but the operator was injured. The cause of the failure was determined to be that the operator extended the boom beyond the operational limit, that he had disconnected the alarm and that he and another employee had rewired the controls to allow the overextension. § 240(1)?
Well, the plaintiff has a prima facie case of § 240(1). The plaintiff is a person so employed; the building owner is an owner as defined in § 240(1). The project was construction, and the injury was caused by a height differential. The defendant is liking the sole proximate cause defense given the facts. There were appropriate safety devices, a control panel that restricted the reach of the boom and alarms that were disconnected by the plaintiff without the knowledge of the owner or employer, and they were available, they were not used or misused, the plaintiff knew he was to use the safety device which would have prevented the overreach and accident. In addition, the plaintiff did not use the safety device for any good reason. The difficulty for the defendant, however, is that the plaintiff was not the sole proximate cause of the accident, as he had assistance in disabling and rewiring the controls to allow overextension. Likely summary judgment for the plaintiff.
That is it for the month. Enjoy your Fall, (that is just a little Labor Law humor) and always remember that we are here to help with any Labor Law or Risk Transfer issues.
-David
Hurwitz Fine P.C.
The Liberty Building
424 Main Street, Suite 1300
Buffalo, New York 14202
Phone: 716.849.8900
Fax: 716.855.0874
Email: [email protected]
Labor Law Pointers is published the first Wednesday of each month. If you know of others who may wish to subscribe to this free publication, please feel free to forward it. If you wish to subscribe or unsubscribe, please send an e-mail to [email protected] or call the Editor/Labor Law Team Leader David R. Adams directly at (716) 849-8916.
Don’t forget to subscribe to our other publications:
Coverage Pointers: This twice-monthly electronic newsletter summarizes important insurance law decisions from appellate courts in New York State with the occasional snapshot across borders. Coverage Pointers, the electronic newsletter that started it all, continues to offer guaranteed publication every other Friday, and a read-at-a-glance summary of important decisions as they happen. Contact Dan Kohane at [email protected] to subscribe.
Medical & Nursing Home Liability Pointers: Medical & Nursing Home Liability Pointers provides the latest news, developments, and analysis of recent court decisions impacting the medical and long-term care communities. Contact Liz Midgley at [email protected] to subscribe.
Premises Pointers: This monthly electronic newsletter covers current cases, trends and developments involving premises liability and general litigation. Contact Jody Briandi at [email protected] to subscribe.
Products Liability Pointers: This monthly newsletter covers all areas of products liability litigation, including negligence, strict products liability, breach of warranty claims, medical device litigation, toxic and mass torts, regulatory framework and governmental agencies. Contact Chris Potenza at [email protected] to subscribe.
|
|
|
|
September 4, 2025
Appellate Division, First Department
This action arises out of an accident at the World Trade Center Oculus Project. Structure Tone was the owner's general contractor in charge of overseeing the pre-buildouts of various retail stores in the Oculus. Structure Tone subcontracted certain drywall work to CSS. After the pre-build-out of an Apple Store was completed in March of 2016, it was turned over to Apple's general contractor, Sajo, to oversee the store's build-out and finish work. Sajo subcontracted various work, including floor protection, to O'Kane. Sajo subcontracted HVAC work to PAI, which sub-subcontracted a portion of that work to PB Vent.
In April of 2016, plaintiff Roberto Hernandez, a sheet metal worker employed by PB Vent, was installing ductwork in the Apple Store. He encountered a dolly, loaded with sheets of Masonite, and attempted to move it out of the way of where he needed to work. The dolly moved "a foot, maybe two" when it suddenly stopped and tipped over onto plaintiff. Photographs taken of the cart's wheels reflect that they were cracked and had an embedded nail. The dolly was marked "CSS" on the bottom, but the Masonite sheets were the materials of O'Kane, which used them in connection with its floor protection.
The trial court granted plaintiffs partial summary judgment on § 241(6) against PAI and on §§ 240(1) and 241(6) against the WTC Owners, Apple, and Sajo. It denied PAI’s motion to dismiss plaintiffs’ Labor Law §§ 240(1), 241(6), 200 and common-law negligence claims and to dismiss all contractual-indemnification claims against PAI, and it denied PAI’s bid for contractual indemnification from PB Vent. It granted O’Kane’s motion dismissing plaintiffs’ Labor Law claims against O’Kane and granted the WTC Owners’ and Sajo’s contractual-indemnification claims against O’Kane; it also granted PAI’s motion dismissing O’Kane’s counterclaims and cross-claims against PAI, while plaintiffs’ common-law claims against O’Kane remained. It granted CSS’s motion dismissing plaintiffs’ Labor Law claims against CSS but denied CSS’s bid to dismiss common-law claims, cross-claims, and Structure Tone’s contractual-indemnification claim. Finally, it denied the WTC Owners’, Apple’s, and Sajo’s motion to dismiss plaintiffs’ Labor Law claims and their motion for contractual indemnification from PAI and PB Vent, and denied PB Vent’s motion to dismiss the contractual-indemnification claims asserted against it.
 Labor Law § 240(1) (EDA)
The Appellate Division upheld in part and reversed in part finding that the motion court correctly found that PAI was a proper Labor Law defendant. PAI had authority to supervise the HVAC work and demonstrated this authority by subcontracting a portion of the HVAC work to plaintiff's employer. O'Kane was also a proper Labor Law defendant as the record raises triable issues of fact as to whether it placed its materials on a defective dolly inside the Apple Store in the area of the HVAC run, so as to exercise control over the work area involved in the. CSS, however, was not a proper Labor Law defendant. CSS was not in privity with Apple or any of the contractors or subcontractors involved in the store's build-out, had no control over plaintiff or the accident location, and its work did not give rise to the accident. While there is circumstantial evidence that the dolly belonged to CSS, it was being used by O'Kane to transport O'Kane's materials. There is no evidence that CSS was aware that O'Kane had taken it, let alone had CSS's permission to do so. There is evidence, however, that CSS complained to Structure Tone before the accident about other trades taking its equipment.
Plaintiff was properly granted summary judgment on his Labor Law § 240(1) claim. While the elevation difference was relatively short, the Masonite weighed approximately 1200 pounds, bringing the accident within the protections of the statute (see Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 9 [2011]. The argument of WTC Owners, Apple, and Sajo that plaintiff was the sole proximate cause of his accident was unpersuasive. While their expert opined that plaintiff misused the cart by pulling it towards him, that version of the accident is contradicted by the record. Nor could plaintiff's decision to move the cart out of the way of his workspace be considered the sole proximate cause of his accident, particularly where his coworker and foreman testified that they would have done the same thing. Moreover, any error on plaintiff's part in moving the dolly cannot be the sole proximate cause of the accident given its defective condition.
PRACTICE POINT: A party is deemed to be an agent of an owner or general contractor under the Labor Law where it has the authority to control the injury-producing activity to avoid or correct the unsafe condition.
 Labor Law § 241(6) (TJE)
The Appellate Court found the Labor Law 241(6) issues academic in light of their finding of 240(1) liability. Nevertheless, they found the dolly was in violation of Industrial Code 12 NYCRR § 23-1.28(b) based on photographs of the wheel of the dolly and the testimony of several witnesses.
Labor Law § 200 and Common-Law Negligence (EDA)
The Appellate Division also found that the motion court correctly denied summary judgment to Sajo as to plaintiff's Labor Law § 200 claim. Sajo, the general contractor, failed to make out a prima facie showing that it was not on notice of the defective dolly being used on its project. PAI, however, did not have the same general supervision over the workspace as Sajo. While PAI had authority to supervise plaintiff, the accident was not caused by the means and methods of plaintiff's work, nor any equipment over which PAI had responsibility or control. Thus, plaintiffs' claims against PAI under Labor Law § 200 and common-law negligence should have been dismissed. Plaintiffs' Labor Law § 200 and common-law negligence claims should also have been dismissed against CSS. There was no evidence that CSS lent its dolly to anyone or even had knowledge of it being used by O'Kane. Sajo's superintendent testified that he did not even know who CSS was, and O'Kane's foreman testified that he never spoke to any of his or Sajo's employees to determine how the CSS dolly came to be used to transport and store O'Kane's materials.
 Indemnity Issues in Labor Law (AMC)
On appeal, the First Department held that WTC Owner, Sajo, and Apple were entitled to summary judgment on their contractual indemnification claim against PAI. The First Department noted that the indemnity clause, which provided for indemnification “arising out of or resulting from, the performance or nonperformance” of PAI’s work, was triggered as the accident arose out of PAI's HVAC contract and its subcontract to PB Vent. However, the First Department reasoned that the indemnification in favor of Sajo was conditional, as plaintiffs' common-law and Labor Law § 200 claims against it were not dismissed. Further, the First Department held that the lower court correctly granted WTC Owners and Sajo summary judgment on their contractual indemnification claim against O'Kane. The First Department noted, however, that the indemnification in favor of WTC Owners was also conditional as issues of fact remain as to whether the accident arose out of O'Kane's work. The First Department affirmed the motion court’s decision to deny Apple the same relief, as they were not named in the subject indemnity clause. The First Department found the argument of WTC Owner and Apple that they were entitled to contractual indemnification against PB Vent to be unpersuasive, as they had never made any such claims against PB Vent. While Sajo did commence a third-party action against PB Vent asserting such claims, Sajo was neither named, nor described in the indemnification provision at issue, and thus was not entitled to indemnification. The First Department noted that Sajo was not an "agent" as that term was used in the agreement between PAI and PB Vent, as an agreement to indemnify must be strictly construed, and the intent to indemnify must be clearly implied. Moreover, the First Department held that issues of fact precluded summary resolution of PAI's contractual indemnification claims against PB Vent. While PAI argued that plaintiff's actions were “wrongful acts, errors, or omissions,” triggering the indemnity clause in the contract between them, there had been no such finding. Finally, the First Department held that Structure Tone's contractual indemnification claims against CSS should be dismissed, as there was no evidence that the accident arose "in whole or in part and in any manner from the acts, omissions, breach or default of [CSS]" so as to trigger the indemnification provision in the CSS-Structure Tone contract.
Plaintiff was injured when he and his coworkers used two dollies to move a crate of glass panels towards a hoist elevator on the ground floor of a building that was being constructed. The entrance to the hoist elevator was not level to the ground and a ramp was used to span the gap, resulting in a one-inch lip where the ramp contacted the ground. To get the panels from the first-floor deck into the hoist elevator, the workers were required to push the crate across the metal ramp. As the workers attempted to wheel the crate over the lip and into the hoist, the ramp wobbled, and the glass panels inside the crate shifted towards plaintiff, striking his right hand inside of the crate and breaking the crate.
The trial court (Chan, J.) denied plaintiff’s motion for partial summary judgment on liability under Labor Law § 240(1) against Genting New York LLC, Resorts World Casino, and Plaza Construction LLC (the Genting defendants) and on common-law negligence against United Architectural Metals, Inc. (UAM); granted the Genting defendants’ motion to dismiss the § 240(1) claim against them but denied their motion to dismiss the § 241(6) claim insofar as it rests on 12 NYCRR 23-1.22(b)(3); denied UAM’s motion to dismiss plaintiff’s common-law negligence claim and the Genting defendants’ third-party contractual indemnification claim against UAM; and granted the Genting defendants’ cross-motion for summary judgment on their third-party contractual indemnification claim against UAM. In a later order on April 23, 2024, the court granted in part UAM’s motion for reargument but, upon reargument, adhered to those prior determinations, leaving intact the denial of UAM’s bid to dismiss the Genting defendants’ indemnity claim and the grant of contractual indemnification to the Genting defendants against UAM.
Labor Law § 240(1) (EDA)
The Appellate Division affirmed the Supreme Court finding that it properly denied partial summary judgment to plaintiff on the Labor Law § 240(1) claim as against the Genting defendants, and properly granted summary judgment to the Genting defendants dismissing that claim as against them. Plaintiff's accident did not "flow from the application of the force of gravity" but was instead the result of the glass panel's lateral movement inside the crate.
PRACTICE POINT: We analyze every Labor Law case using the same four criteria: (1) appropriate plaintiff; (2) appropriate defendant; (3) covered/protected activity; and (4) elevation-related/gravity-related risk. The disputed claim in this case is whether plaintiff is an appropriate plaintiff. An injured worker must demonstrate that he or she was injured by gravity, not momentum. Remember, it only takes one missing element to render the sole proximate cause defense inapplicable.
Labor Law § 241(6) (TJE)
The Appellate Court affirmed the Trial Court finding an issue of fact as to whether 12 NYCRR § 23-1.22(b)(3) was violated. The regulation required that “runways and ramps are substantially supported and braced to prevent excessive spring or deflection.” Whether the “wobbling” testified to by Plaintiff and Co-workers amounts to “excessive spring or deflection” and was a proximate cause of his injuries was left to be determined by the factfinder.
Labor Law § 200 and Common-Law Negligence (EDA)
The Appellate Division affirmed the Supreme Court finding that UAM was not entitled to summary judgment dismissing plaintiff's common-law negligence claim against it and plaintiff is not entitled to partial summary judgment as to UAM's liability on that claim. The court could not determine as a matter of law whether UAM launched a force or instrument of harm that caused plaintiff's injury (see Espinal v Melville Snow Contrs., 98 NY2d 136, 141-142 [2002]). Issues of fact exist as to whether the crate that plaintiff was moving was defective and whether the way the crate was packed caused plaintiff's injuries.
Indemnity Issues in Labor Law (AMC)
On appeal, the First Department reasoned that the purchase order between UAM and Massey's contained a performance-of-the-work trigger, requiring UAM to indemnify the Genting defendants, Massey's "customers" under the indemnification agreement, for accidents that may have arisen from the articles furnished and packaged by UAM. However, as there were issues of fact regarding the liability of Genting and UAM, the First Department held that summary judgment on the contractual indemnification claim must be denied.
Plaintiff was injured when a step ladder wobbled as he attempted to step off, and he fell onto a piece of steel conduit. Plaintiff testified at his deposition that the area of the floor where he had to place the ladder, given the layout of the room, had a depression and thus, one leg of the ladder was not flat on the ground.
The Trial Court denied Plaintiff’s motion for summary judgment on their Labor Law §240(1) and 241(6) claims.
Labor Law § 240(1) (EDA)
The Appellate Division unanimously reversed the Supreme Court finding that Plaintiffs established prima facie entitlement to summary judgment on his Labor Law § 240(1) claim. While there was nothing inherently defective in the ladder being used by plaintiff at the time of his accident, it was inadequate considering the room's configuration and the condition of the floor (see Felker v Corning Inc., 90 NY2d 219, 224 [1997]; Ross v 1510 Assocs. LLC, 106 AD3d 471, 471 [1st Dept 2013]). Defendants' reliance on the accident reports and medical records to raise a material issue of fact is unavailing. While the description of how the accident occurred in those documents might have each been incomplete, they were not inconsistent with plaintiffs' claims.
PRACTICE POINT: To establish a violation under Labor Law § 240(1) because of a fall from a ladder, there must be evidence that the ladder was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial factor in causing plaintiff’s injuries. Where, for instance, plaintiff falls from a ladder because he or she lost his or her balance, and there is no evidence that the ladder was defective or inadequate, a defendant is not liable. Conversely, where a ladder slides, shifts, tips over, or otherwise collapses for no apparent reason, a violation has been established.
Labor Law § 241(6) (TJE)
The Appellate Court found Plaintiff’s Labor Law 241(6) claim academic in light of their decision on Labor Law 240(1) liability.
Zuniga v Smith
September 24, 2025
Appellate Division, Second Department
The defendant Arlene Eaton hired NT Construction Corp. to remove a swimming pool in the backyard of her home located on Coates Avenue in Suffolk County (the premises). On November 4, 2019, the plaintiff, an employee of NT Construction Corp., was at the premises working on the project. The plaintiff allegedly was injured when he was struck by a vehicle while he was in Coates Avenue. The Supreme Court denied defendants' motion for summary judgment dismissing the complaint against them.
Labor Law § 200 and Common-Law Negligence (EDA)
The Appellate Division reversed finding that contrary to the plaintiff's contention, the complaint sounds in common-law negligence, and the pleadings contained in the do not allege a violation of Labor Law § 200. The record showed that Eaton exercised no supervisory control over the plaintiff's work and, at most, did no more than oversee the progress of the project, and that Verbeck was not present during the project, which is insufficient to form a basis for the imposition of liability. In opposition, the plaintiff failed to raise a triable issue of fact.
The plaintiff, a sheet metal worker employed by the Jobin Organization, was performing work on the roof at LaGuardia Airport, Terminal C, which was owned by the defendant City of New York, leased to the defendant Port Authority of New York and New Jersey, and managed by the defendant Delta Air Lines, Inc. (hereinafter collectively the defendants).
Access to the roof was provided through a ladder that led through a hatch door, secured by safety latches but with no handrail. The plaintiff, while working, needed to get off the roof and began to descend the ladder. The plaintiff was required to hold onto the top of the hatch door, since there was no handrail, and as he stepped down, the hatch door closed, causing him to lose his balance and fall.
The Trial Court granted Plaintiff’s motion for summary judgment on Labor Law 240(1), and dismissed defendants affirmative defenses as moved by the Plaintiff, with the exception of their fifth affirmative defense. Plaintiff moved to reargue, and upon hearing the reargument, the Trial Court dismissed defendants fifth affirmative defense.
Labor Law § 240(1) (EDA)
The Appellate Division revered the Supreme Court finding that the plaintiff demonstrated that he was injured due to the inadequate access provided by the hatch door and inadequate safety devices. However, in opposition, the defendants demonstrated that the plaintiff was provided safety devices to prevent elevation-related injuries, that the plaintiff may have known of such devices, and that the plaintiff failed to use such devices. Thus, the defendants raised a triable issue of fact.
PRACTICE POINT: The sole proximate cause defense requires a defendant to prove plaintiff (1) had adequate safety devices available; (2) knew both that the safety devices were available and that they were expected to use them; (3) chose for no good reason not to do so; and (4) would not have been injured had they not made that choice. Here, defendants raised an issue of fact as to whether or not the devices were available and therefore were able to defeat Plaintiff’s motion.
New York Industrial Code Regulations (EDA)
|
|
Regulation § 23–1.27 Mechanical, hydraulic and pneumatic jacks.
(c) Lubrication.
Every jack shall be maintained properly lubricated.
|
|
While there are no cases directly dealing with this subsection, its language is likely not specific enough to form the basis of a Labor Law § 241(6) claim.
|
|
|
|
Labor Law Pointers
Editor
David R. Adams
Associate Editor
Eric D. Andrew
Associate Editor
Patrice C. S. Melville
Associate Editor
Ashley M. Cuneo
Associate Editor
Tyler J. Eckert
Labor Law Team
|
|
|
David R. Adams, Team Leader
[email protected]
Patrice C. S. Melville
[email protected]
Brian F. Mark
[email protected]
Elizabeth K. Ognenovski
[email protected]
Bradon S. Carlson
[email protected]
Joseph P. Mendoza
[email protected]
|
|
Hurwitz Fine P.C.
Buffalo
424 Main Street, Suite 1300, Buffalo, NY 14202
Phone: 716-849-8900, Fax: 716-855-0874
Long Island
25 Melville Park Road, Suite 260, Melville, NY 11747
Phone: 631-465-0700, Fax: 631-465-0313
Rochester
100 Office Park Way, Pittsford, NY 14534
Phone: 585-454-6850, Fax: 585-270-4572
Albany
Phone: 518-641-0398
Additional Offices
Albion | Amherst | Hartford, CT | Englewood, NJ | Niagara Falls
Hurwitz Fine P.C. is a full-service law firm providing legal services
throughout the State of New York
www.hurwitzfine.com
© 2025, Hurwitz Fine P.C. All Rights Reserved
In some jurisdictions, newsletters such as this may be considered Attorney Advertising.
|
|
|
|
|
