|
Volume XIV, No. 12
Wednesday, November 5, 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 are excited to announce that starting in December, we will be hosting a monthly webinar series. Each month we will provide a 30-minute webinar focused on a very specific issue in New York Labor Law or related Risk Transfer. Stay tuned for more information!
Now, getting back to our bread and butter, pictures of construction madness. In our photo this month, the property owner understood that in a falling object case, any portion of the wall not intended to fall must be secured. The property owner, having hired the plaintiff to perform construction work that included removing some bricks from a wall, decided it was important to secure the structure. He was a boy scout, albeit many years ago, but his knot game was very strong, or so he thought. As the property owner stood atop his wall, contemplating his brilliance in securing the wall, the plaintiff was at the base removing a brick exactly as directed by the owner. It was at this precise moment that the owner remembered that when tying a square knot, the ends must align with the incoming line, otherwise, the resulting granny knot can come loose. Not surprisingly, the plaintiff was injured when the inferior knot failed and the wall collapsed onto him, fortunately, not fatally. Labor Law § 240(1) case?
Starting as we always do with the prima facie criteria, we have a building owner who would be a proper defendant, a person so employed who would be a valid plaintiff, a project that was covered, construction, and an injury caused by a falling object. The falling object was, as understood by the owner defendant, in need of securing and the owners efforts at securing the wall were, at best, unsuccessful. This will be an easy Summary Judgment motion for the plaintiff. But wait, was the property a single-family home? As it turns out, it was and thus the defendant owner argues that he is entitled to the exemption. Unfortunately for the owner, he had directed the plaintiff exactly how to remove the brick and thus the defendant was not entitled to the exemption as it only applies to owners of single or double family homes when they do not supervise, direct or control the means and methods of the injury causing work.
That’s it for this month. Have a great month, 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.
|
|
|
Plaintiff was performing renovation work when a “foot brace” component from an upper level of a scaffold fell and struck him. A coworker was dismantling the foot brace several stories above him at the time of injury.
The trial court denied the owner (Ford Foundation) and general contractor’s (Henegan) motion for summary judgment dismissing Plaintiff’s Labor Law §§ 240(1) and 200 and common-law negligence claims and denied their motion on contractual indemnification against a second third-party defendant. The court granted Plaintiff partial summary judgment on his Labor Law § 240(1) claim.
Separately, upon searching the record, the court sua sponte dismissed the second third-party contractual indemnification complaint against Harbour Mechanical.
 Labor Law § 240(1) (EDA)
The Appellate Division Affirmed the Supreme Court , finding that Plaintiff established his prima facie entitlement to summary judgment on his Labor Law § 240(1) claim. Plaintiff's evidence showed that he was struck by a foot brace component to a scaffold that fell several stories from where a co-worker was dismantling the upper levels of the scaffold, and that the gravitational force generated by the falling object warranted the use of a safety device enumerated in Labor Law § 240(1), such as overhead protection, as per the unrebutted opinion of plaintiff's site safety expert.
PRACTICE POINT:
When plaintiff is struck by a falling object, and the object is either being hoisted or requires securing, and there is no safety device securing the object or protecting the worker, summary judgment will be granted to the plaintiff.
 Labor Law § 200 and Common-Law Negligence (MRV)
The Appellate Division did not reach Ford and Henegan’s arguments as to plaintiff’s Labor Law § 200 of common-law negligence claims because plaintiff was granted summary judgment on his Labor Law § 204(1) claim.
 Indemnity Issues in Labor Law (AMC)
The Appellate Division held that Ford and Henegan’s claim for contractual indemnification should not have been dismissed. The indemnification language in the subcontract provided that Ford (owner) and Henegan (GC) were to be indemnified for all claims, damages, losses and expenses arising out of, or in connection with, or resulting from the subcontractor’s work provided same resulted in bodily injury. As there was no evidence that the owner or GC were the sole proximate cause of Plaintiff’s injury, they should be granted conditional contractual indemnification against Harbour.
Plaintiff Antonio Rodriguez was cutting and removing joint filler on a concrete deck over the FDR Drive using a handheld demolition saw that lacked a self-adjusting blade guard. The blade continued spinning after he released the trigger. At some point Plaintiff stood up to relieve his back pain, and the running blade caught his pant leg and cut his knee.
An authenticated photo and an expert affidavit indicated the saw was missing the self-adjusting guard and had the wrong type of blade per the safety manual.
The trial court denied Rodriguez’s motion for partial summary judgment on Labor Law § 241(6), predicated on Industrial Code §§ 23-1.5(c)(3), 23-1.12(c)(1), and 23-9.2(a), without prejudice and with leave to refile after discovery.
 Labor Law § 241(6) (TJE)
The Appellate Division reversed and granted plaintiff summary judgment on § 241(6). The Court held the motion was not premature since defendants failed to show they lacked a reasonable opportunity to obtain discovery and did not utilize the opportunity they had to obtain third-party testimony necessary to oppose plaintiff’s motion.
Plaintiff’s testimony, § 50-h testimony, the authenticated photo, and his expert’s opinion established violations of Industrial Code §§ 23-1.12(c)(1), 23-9.2(a), and 23-1.5(c)(3). Defendants failed to raise an issue of fact in opposition.
Plaintiff John Eisner was using a ladder to perform covered work when he fell. He testified no safety device was provided to keep the ladder stable during his work.
The trial court granted plaintiff summary judgment on his Labor Law § 240(1) and § 241(6) claims.
Labor Law § 240(1) (EDA)
The Appellate Division affirmed the Supreme court finding that Plaintiff's testimony established prima facie that defendants failed to provide a safety device to ensure that the ladder would be stable while plaintiff used it to perform his statutorily covered work. Plaintiff was not required to show that the ladder itself was defective (Labor Law § 240[1]; see e.g. Sacko v New York City Hous. Auth., 188 AD3d 546, 547 [1st Dept 2020]; Pierrakeas v 137 E. 38th St. LLC, 177 AD3d 574, 574-575 [1st Dept 2020]). In opposition, defendants failed to raise an issue of fact. Defendants' assertion that it was the "general consensus" of unnamed individuals on site that plaintiff was the cause of his own accident because he was carrying burn blankets and did not maintain three-point contact with the ladder is speculative with no support in the record, and thus insufficient to rebut plaintiff's showing (see Castillo v TRM Contr. 626, LLC, 211 AD3d 430, 431 [1st Dept 2022]).
PRACTICE POINT:
Summary judgment motions must be proven with competent evidence, not speculation. Here the three points of contact argument was found to be merely speculation, and not enough to raise an issue of fact.
Labor Law § 241(6) (TJE)
Plaintiff’s Labor Law 241(6) claim was rendered academic in light of grant of partial summary judgment on his Labor Law 240(1) claim.
Plaintiff Luis Murillo, a JT Magen laborer assigned to undertake cleaning and debris removal was pushing containers of debris when he allegedly tripped on loose tile pieces left after tile and stonework. The tile subcontractor was William Erath & Son, Inc., (Erath) whose contract did not include debris removal.
The trial court granted Erath’s motion dismissing plaintiff’s Labor Law § 241(6) claim and the defendants/third-party plaintiffs’ third-party complaint against Erath. The court also granted the owner/agents’ motion dismissing plaintiff’s Labor Law § 200 and common-law negligence claims and denied their motion for summary judgment on contractual and common-law indemnification against Erath.
Labor Law § 241(6) (TJE)
The court emphasized that JT Magen alone was responsible for cleaning and debris removal, and plaintiff was the only one assigned to perform that task. Although Erath had left the hazardous material for removal, that activity was excluded from Erath’s Contract and was to be performed by JT Magen.
As a result, Plaintiff’s claim was barred as he was injured by the very condition he was tasked to remedy, and his attempt to distinguish by asserting that he was pushing containers filled with debris as opposed to placing debris in the containers was rejected.
Labor Law § 200 and Common-Law Negligence (MRV)
The Appellate Division held the Supreme Court properly dismissed plaintiff’s common-law and Labor Law § 200 claims for the same reasons set forth above. Plaintiff argued that defendants’ motion should have been denied because defendants did not submit evidence of the last time this area was cleaned or inspected. The Court was not persuaded by this argument because JT Magen contracted with the defendants to perform those tasks and plaintiff was responsible for clearing debris as a result of that contract.
Indemnity Issues in Labor Law (AMC)
The Appellate Division held that the Trial Court correctly dismissed the indemnity claim against Erath. Erath had no duty to perform cleanup; that responsibility was left to JT Magen. Thus, the indemnity provision in the contract between Erath and JT Magen was not triggered.
Plaintiff Juan Simon, a Holt Construction laborer at the 4 World Trade Center, was injured at the loading dock when compacting large glass panes in a Royal Waste truck caused glass to burst from the truck, striking other panes on a nearby A-frame cart behind which he had crouched. 4 World Trade Center LLC owned the building, Syntactx LLC subleased the space under renovation, and Holt was the general contractor and plaintiff’s employer. Royal Waste was tasked with hauling debris.
The trial court denied plaintiff’s motion for partial summary judgment on Labor Law § 240(1) against 4 World Trade Center LLC and Syntactx, and on § 200/common-law negligence against Royal Waste.
Labor Law § 240(1) (EDA)
The Appellate Division affirmed the Supreme Court because, on the record, a triable issue of fact existed as to whether his injuries resulted from a failure to employ appropriate protective devices as required by the statute. However, defendants' argument that plaintiff's own conduct in placing himself behind the A-frame cart, which was located at the rear of the truck, was the sole proximate cause of his accident was found to be unavailing. There was no evidence that plaintiff disobeyed an order not to crouch beside the A-frame cart. Plaintiff's conduct under the circumstances merely presented issues of comparative negligence, which is not a defense where a Labor Law § 240(1) violation proximately caused plaintiff's injury (see Blake v Neighborhood Hous. Servs. of N.Y. City., 1 NY3d 280, 290 [2003]).
PRACTICE POINT:
Questions of Plaintiff’s failure to use available safety devices leads to a sole proximate cause defense; merely not following a direction on procedure not related to a safety device is comparative negligence.
Labor Law § 241(6) (TJE)
The First Department dismissed Plaintiff’s Labor Law § 241(6) claim as abandoned for failure to address defendants’ dismissal arguments on appeal.
Labor Law § 200 and Common-Law Negligence (MRV)
The Appellate Division held that plaintiff’s Labor Law § 200 and common-law negligence claims against the World Trade Center defendants should be dismissed because there was no evidence establishing a triable issue as to whether they supervised or controlled the means and methods of plaintiff’s injury-producing work.
Indemnity Issues in Labor Law (AMC)
The Appellate Division overturned the Trial Court’s decision and granted the World Trade Center defendant’s motion for summary judgment dismissing Royal Waste’s crossclaims for contractual and common law indemnification. The Court acknowledged that there are triable issues of fact as to whether royal Waste was actively negligence in proximately causing Plaintiff’s injury; however, the World Trade Center defendant’s argument that the record demonstrates they are free from active fault in causing Plaintiff’s accident warrants dismissing Royal Waste’s claim for common-law indemnification. Regarding the crossclaim for contractual indemnification, royal Waste offers no proof of a contract between it and the World Trade Center defendants.
Plaintiff, an RNC Industries laborer, was underpinning a neighboring building’s foundation at a demolition/excavation site owned by FDB Acquisition LLC and managed by Pav-Lak Contracting, Inc. A large piece of concrete from the adjacent building’s newly exposed façade came loose and fell onto him.
The trial court denied plaintiffs’ motion for summary judgment on Labor Law § 240(1), sua sponte dismissed that claim, denied plaintiffs’ motion on § 241(6) under 12 NYCRR 23-1.7(a)(1), granted plaintiffs’ motion on § 241(6) under 12 NYCRR 23-4.1, and denied RNC’s motion to dismiss plaintiffs’ lost-earnings claim.
Labor Law § 240(1) (EDA)
The Appellate Division reversed the Supreme Court finding that plaintiffs established that Mr. Ortiz's injuries were caused by the lack of any safety device of the kind enumerated in Labor Law § 240(1) to secure the neighboring foundation. Plaintiffs' expert established that defendants failed to properly underpin the foundation of the adjoining building by bracing and shoring the "poor conditions of the concrete and the obvious presence of cold joints within the excavated pins of the underpinning work." Although defendants' expert reached a different conclusion, his affidavit is conclusory and fails to adequately explain why he found that "there are no known safety devices as described in [§ 240(1)] that the plaintiff could have used to help him in this particular scope of work."
PRACTICE POINT:
In the battle of experts, both experts need to be armed with facts and arguments to support their opinions, not just conclusions that are a long shot to defeat summary judgment. Here, defendants’ expert did not have any opinion or facts to argue the motion.
Labor Law § 241(6) (TJE)
Plaintiff’s Labor Law 241(6) claim was rendered academic in light of the grant of summary judgment on his Labor Law 240(1) claim.
Plaintiffs were refinishing wood paneling inside elevator cabs at a building owned by The 1148 Corporation. Over several days they sanded and applied flammable solvents and lacquer using an electric spray compressor inside the confined elevator cars. A spark from the compressor used by one of the plaintiffs triggered the flash fire.
The trial court granted plaintiffs’ partial summary judgment on Labor Law § 241(6) based on Industrial Code 12 NYCRR 23-1.7(g) and 12 NYCRR 12-1.7(a) and denied 1148 Corp.’s motion to dismiss § 241(6) under 12 NYCRR 23-2.8(e) and 23-1.5(c) as well as Labor Law § 200 and common-law negligence.
Labor Law § 241(6) (TJE)
The First Department held the elevator refinishing was “construction work” under § 241(6), akin to a painting renovation project. The record established a violation of 12 NYCRR 23-1.7(g) because plaintiffs used flammable solvents and lacquer in unventilated elevator cabs, creating air contamination that required testing before each workday.
Plaintiffs made a prima facie showing of a violation of 12 NYCRR 12-1.7(a), with the overheating spray compressor positioned next to the elevator door serving as a proximate cause of the flash fire and 1148 Corp failed to raise an issue of fact.
The First Department upheld the trial court’s decision granting plaintiffs’ partial summary judgment pursuant to 12 NYCRR 23-1.7(g) and 12 NYCRR 12-1.7(a), and found issues of fact pursuant to 12 NYCRR 23-2.8(e) and 23-1.5(c).
Labor Law § 200 and Common-Law Negligence (MRV)
The First Department held the lower court properly found triable issues existed as to whether 1148 Corp. directly supervised and/or controlled the means and methods of the injury-producing work and, as such, properly denied defendant’s motion for summary judgment dismissal of plaintiff’s § 200 and common-law negligence claims.
Plaintiff Cristian Bonilla was performing work in an apartment bathroom when he fell from a ladder and was injured. No one witnessed the accident.
The trial court granted Bonilla’s summary judgment motion under Labor Law § 240(1) against BPP St Owner LLC.
Labor Law § 240(1) (EDA)
The Appellate Division affirmed finding that Plaintiff established prima facie entitlement to summary judgment on her Labor Law § 240(1) claim by submitting her own deposition testimony that she fell from a ladder while working in the bathroom of an apartment, injuring herself (see Rodas—Garcia v NYC United LLC, 225 AD3d 556, 556 [1st Dept 2024]). In opposition, defendant failed to meet its burden. defendant's version is based on testifying witnesses who relayed hearsay statements of plaintiff's coworkers that plaintiff fell from standing on the bathroom vanity instead of the ladder. Neither the testifying witnesses nor plaintiff's coworkers were at the scene. No one witnessed plaintiff's accident. Thus, defendant relied on multiple layers of hearsay evidence, which is insufficient to raise a triable issue of fact (see Garcia v 122—130 E. 23rd St. LLC, 220 AD3d 463, 464 [1st Dept 2023].
PRACTICE POINT:
Again, motions for summary judgment must be supported by evidence in admissible form. In this case, defendant relied on hearsay evidence in stead of obtaining direct testimony to support its opposition to Plaintiff’s motion.
Plaintiff, a carpenter employed by MB Home Remodeling (MB), was framing new apartment buildings when “the scaffolding he was working on collapsed underneath him.” He fell about five feet to a concrete floor and sustained a fractured right foot.
RXR Garvies P1 Building H Owner LLC (RXR) owned the premises; Hunter Roberts Construction Group LLC (Hunter) was the general contractor; Golden Eagle Framing, LLC subcontracted the timber framing to Plaintiff’s employer.
The Trial Court denied RXR and Hunter’s summary judgment motion seeking dismissal of Plaintiff’s common-law negligence and Labor Law § 200 claims and seeking contractual indemnification against Golden Eagle. The court also denied Plaintiff’s cross-motion for partial summary judgment on Labor Law § 240(1).
Labor Law § 240(1) (EDA)
The Appellate Division reversed the Supreme Court finding that Plaintiff established prima facie entitlement to summary judgment on liability on his Labor Law § 240(1) claim against RXR and Hunter through his testimony, which was corroborated by Hunter's incident report, that the temporary wood scaffolding he was working on collapsed underneath him. In opposition, RXR and Hunter failed to raise a triable issue of fact. Their reliance on the recalcitrant worker defense was misplaced because that defense required a showing that plaintiff refused to use a safety device that was provided to him.
PRACTICE POINT: This raises the Recalcitrant Worker defense. Like Sole proximate cause, it is not enough to just have the appropriate safety equipment available, Plaintiff have been instructed to use it to successfully argue the recalcitrant worker defense.
Labor Law § 200 and Common-Law Negligence (MRV)
The Appellate Division held that RXR and Hunter’s summary judgment motion to dismiss plaintiff’s common-law negligence and § 200 claims should have been granted. The records established that RXR and Hunter did not control the means and method of plaintiff’s work. Plaintiff testified that his employer told him what to erect and what equipment to use. Plaintiff also testified that third-party defendant Holden Eagle oversaw his work and he had never heard of RXR or Hunter. The Court was also not persuaded by plaintiff’s argument that the scaffolding constituted a defective or dangerous condition on the premises (see Dalanna v City of New York, 308 AD2d 400, 400, 764 N.Y.S.2d 429 [1st Dept 2003]).
Indemnity Issues in Labor Law (AMC)
The Appellate Division reversed the Trial Court’s decision, and granted Hunter Roberts Construction Group LLC’s and RXR Garvies P1 Building H Owner LLC’s motion for summary judgment as to the contractual indemnification claim against Golden Eagle. The Appellate Division held that in light of the broad language used to indemnify defendants for any claims "arising out of . . . the Work," there is no pending issue of fact as to its enforceability. Thus, a conditional judgment is not premature.
Plaintiff was drilling metal framing into a ceiling while standing on the fourth step of an A-frame ladder when the ladder suddenly moved and he fell for an unknown reason, falling with the ladder.
The Supreme Court, New York County denied Plaintiff’s summary judgment motion on Labor Law § 240(1).
Labor Law § 240(1) (EDA)
The Appellate Division revered the Supreme Court finding that plaintiff's testimony was sufficient to satisfy his initial burden, relying on a distinguishable case where "[n]o evidence was submitted that the ladder moved out of position, so as to indicate that it was inadequately secured" (Joseph v 210 W. 18th, LLC, 189 AD3d 1384, 1385 [2d Dept 2020]). Here, plaintiff testified that the ladder was locked and stable but suddenly moved for no apparent reason, causing him to fall off the ladder, which raised the presumption of a Labor Law § 240(1) violation (see Rom v Eurostruct, Inc., 158 AD3d 570, 571 [1st Dept 2018]; see also Ping Lin v 100 Wall St. Prop. L.L.C., 193 AD3d 650, 651 [1st Dept 2021]; Soriano v St. Mary's Indian Orthodox Church of Rockland, Inc., 118 AD3d 524, 526 [1st Dept 2014]). Defendants failed to raise a triable issue of fact in rebuttal.
PRACTICE POINT:
If a ladder that is used properly shifts for no apparent reason, Plaintiff’s will most likely satisfy their prima facie burden, even in unwitnessed falls.
Plaintiff was transporting a 300- to 500-pound hot water tank on a hand truck up a short flight of stairs with assistance from three coworkers. Plaintiff testified the coworker holding the opposite handle cut his hand on the tank and let go, causing the rope-secured tank to shift and momentarily come down onto Plaintiff’s body before the crew lifted it and finished the job. Other witnesses offered conflicting accounts, including testimony that Plaintiff merely lost his footing and that the tank never contacted him.
The Supreme Court, New York County denied Plaintiff’s summary judgment motion on Labor Law § 240(1).
Labor Law § 240(1) (EDA)
The Appellate Division affirmed the Supreme Court. One of the three other men helping to transport the hot water tank testified that he could not recall any such accident, another stated that plaintiff merely lost his footing for a second before the hot water tank was righted, and the third testified that the tank never came into contact with plaintiff. These conflicting witness accounts, including an issue of witness credibility arising out of one of the men's testimony that plaintiff offered him money to support his version of events, warrant denial of the motion.
PRACTICE POINT:
The contrasting versions of the event in question make it impossible to determine, as a matter of law, whether the item was properly secured, whether plaintiff's accident was proximately caused by a gravitational force, and whether plaintiff alone made the decisions regarding how to transport the item such that he was the sole proximate cause of his injuries.
Plaintiff Don Barron, employed by Severn Trent Environmental Services, fell from a retaining wall bordering the Gowanus Canal while conducting an inspection related to the Gowanus Waste Water Pumping Station project.
The trial court granted The City of New York, NYC Department of Environmental Protection/Bureau of Waste Water Treatment, and Northeast Remsco Construction, Inc.’s summary judgment motion dismissing Plaintiff’s Labor Law §§ 240(1) and 241(6) § 200 and common-law negligence claims. It also granted Severn Trent summary judgment dismissing Plaintiff’s §§ 240(1) and 241(6) causes of action but denied Severn Trent summary judgment on Northeast Remsco’s contractual indemnification claim.
Labor Law § 240(1) (EDA)
The Appellate Division affirmed the Supreme Court finding that the defendants and Severn Trent demonstrated their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging a violation of Labor Law § 240(1) by demonstrating that the plaintiff's accident did not occur while he was engaged in work within the ambit of Labor Law § 240(1), and, in opposition, the plaintiff failed to raise a triable issue of fact (see Cunningham v City of New York, 237 AD3d 422, 422; Garcia-Rosales v Bais Rochel Resort, 100 AD3d 687).
PRACTICE POINT: Always remember that not all falls are Labor Lw § 240(1). Plaintiff must be engaged in an enumerated activity: “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure”. Here, Plaintiff was merely inspecting.
Labor Law § 241(6) (TJE)
The Second Department affirmed the lower court, finding Defendants established the work performed by Plaintiff at the time of his injury was routine maintenance and Plaintiff failed to raise an issue of fact.
Labor Law § 200 and Common-Law Negligence (MRV)
The Second Department affirmed the lower court, holding that Defendants established their prima facie entitlement to judgment as a matter of law dismissing plaintiff’s § 200 and common-law negligence claims because the record established a storm was in progress at the time of plaintiff’s fall. Under the storm in progress rule, a property owner will not be held responsible for accidents that occur from the accumulation of snow and ice on its premises until an adequate amount of time has passed following the storm so as to allow the owner an opportunity to clear the snow and ice (see (Cerar v Jefferson Val. Mall L.P., 225 AD3d 738, 739, 207 N.Y.S.3d 623 [2d Dept. 2024]).
Plaintiff was working in a trench at an excavation site in Queens to repair a water leak when the trench walls collapsed on him in January 2017. C.A.C. Industries, Inc. (CAC) had been hired by the City’s Department of Environmental Protection to supply a backhoe loader and an operating engineer for the repair work.
The trial court granted C.A.C. summary judgment dismissing Labor Law § 200 his Labor Law § 241(6) claim as based on violations of 12 NYCRR 23-4.2 and 23-4.4, but denied C.A.C.’s request to dismiss common-law negligence. The court also denied Plaintiff’s motion for summary judgment on common-law negligence, and Labor Law § 200, and § 241(6).
Labor Law § 241(6) (TJE)
In this case involving § 241(6), the Appellate Division affirmed dismissal of the predicates under 12 NYCRR 23-4.2 and 23-4.4, reasoning that C.A.C. established it was not an owner, contractor, or statutory agent with authority to supervise or control the worksite, and Plaintiff failed to raise an issue of fact.
Labor Law § 200 and Common-Law Negligence (MRV)
The Appellate Division affirmed the lower court’s decision to grant summary judgment in favor of defendant on Labor Law § 200 because the defendant established that it lacked the authority to supervise or control the work site and plaintiff failed to create a question of fact. The Appellate Division affirmed the lower court’s denial of defendant’s motion for summary judgment on common-law negligence claims because defendant failed to establish that the operating engineer (Romeo) was the Department of Environmental Protection’s (DEP) special employee. The record established that DEP owned and stored the backhoes used to perform excavations and continued to pay Romeo’s wages during the relevant timeframe. Therefore, there were triable issues of fact as to whether Romeo’s excavation of the trench created or exacerbated the dangerous condition that caused plaintiff’s injuries.
Plaintiff, a concrete laborer, was sweeping in a building lobby while coworkers stripped plywood from the ceiling. A piece of plywood about 13–14 feet above fell and hit him in the chest.
The trial court dismissed Plaintiff’s § 200, § 240(1), and common-law negligence claims, but granted plaintiff summary judgment on § 241(6) predicated on 12 NYCRR 23-1.7(a)(1). On defendants’ later motion to renew and reargue under CPLR § 2221, the court vacated its earlier ruling, denied plaintiff’s summary judgment on Labor Law § 241(6), and dismissed Plaintiff’s 241(6) claim.
Labor Law § 241(6) (TJE)
The Appellate Division reversed the lower court and determined defendants failed to establish the lobby work area qualified as a place normally exposed to falling objects as required by 12 NYRCRR 23-1.7(a)(1) and it remained a question of fact.
Plaintiff was injured when the mobile lift he stood on collapsed while he was repairing a parking garage allegedly owned by B & A Warehousing, Inc. and managed by TBS Realty Management, LLC. He and his wife sued B & A, TBS, and Aaron Berger (owner of both entities) alleging violations of Labor Law §§ 200, 240(1), and 241(6).
The trial court granted plaintiff summary judgment on liability against B & A and TBS, but denied summary judgment against Berger.
During trial, the jury was instructed to consider punitive damages based on Berger’s conduct and the jury awarded $10,000,000 in punitive damages, which was incorporated into the February 3, 2020 judgment.
Labor Law § 240(1) (EDA)
The Appellate Division reversed the Supreme Court finding that the Supreme Court erroneously instructed the jury that the issue of Berger's liability had already been determined against him, and the jury was not asked to consider Berger's liability under the Labor Law or otherwise. Because Berger was never determined to be liable with respect to any substantive cause of action, no punitive damages could be awarded based upon his alleged conduct (see Prote Contr. Co. v Board of Educ. of City of N.Y., 276 AD2d at 310).
PRACTICE POINT:
Punitive damages are derivative and not favored and are rarely pled or litigated in labor law cases.
Plaintiff slipped and fell on “fluids leaking from a forklift” owned by Structural Preservation Systems on New York Housing Authority premises. At the time, Plaintiff worked for Apex Development, which had contracted with Structural to perform work at the site.
The Trial Court denied the third-party defendants’ summary judgment motion seeking to dismiss Structural’s third-party complaint for contractual indemnification against Apex, common-law indemnification against Apex and a coworker, and breach of contract for failure to procure insurance against Apex.
Indemnity Issues in Labor Law (AMC)
The Trial Court properly denied that branch of third-party defendant’s motion for summary judgment dismissing the third-party cause of action for contractual indemnification against Apex. Third-party defendant did not make a prima facie showing that Apex was not contractually obligated to defend Structural.
The Appellate Division upheld the Trial Court’s denial of that branch of the third-party defendants' motion which was for summary judgment on Apex's counterclaims for common-law indemnification. Third-party defendants failed to establish, prima facie, that Apex was entitled to common-law indemnification for the costs of the current litigation from Structural, as they failed to show that Structural was actively at fault in bringing about Grala's injuries.
Regarding Structural’ s and NYCHA’s motion for summary judgment dismissing Apex's counterclaims, the Appellate Division held that Structural and NYCHA established, prima facie, that Structural was not liable to Apex for common-law indemnification, as they demonstrated that Structural could not be found liable by operation of law and it was not actively at fault in bringing about Grala's injuries. Thus, the Trial Court properly granted that portion of Structural’ s and NYCHA’s motion.
Plaintiff, an employee of RC Structures, allegedly “tripped over a shovel” on a construction site in May 2020. Plaintiff sued the owner, Rockaway Village Housing Development Fund Corporation (Rockway), and the general contractor, Lettire Construction Corp. (Lettire), for common-law negligence and violations of Labor Law §§ 200 and 241(6).
Defendants moved for summary judgment dismissing the common-law negligence and Labor Law § 200 causes of action, and the Labor Law § 241(6) claim predicated on 12 NYCRR 23-1.7(e)(2). The Trial Court granted defendants’ summary judgment motions.
Labor Law § 241(6) (TJE)
The Appellate Division held that the Trial Court erred in granting dismissal of the Labor Law § 241(6) claim predicated on 12 NYCRR 23-1.7(e)(2). The court found triable issues of fact as to whether defendants permitted an accumulation of “debris, dirt, scattered tools, and materials,” and whether the shovel was an “integral part” of the work at the time of the accident.
Labor Law § 200 and Common-Law Negligence (MRV)
The Appellate Division held the lower court erred in granting defendants’ motion for summary judgment on plaintiff’s §200 and common-law negligence claims because plaintiff’s accident arose from an allegedly dangerous condition on the premises and defendants failed to establish that they did not have constructive notice of the allegedly dangerous condition.
Plaintiff, an employee of Capital Concrete NY, Inc., fell from an A-frame ladder while performing work at a site owned/controlled by Bushwick Realty Holdings, LLC and another defendant.
The Trial Court granted the defendants’ summary judgment motion dismissing the Labor Law § 240(1) claim and denied Plaintiff’s cross-motion for summary judgment on that claim.
Labor Law § 240(1) (EDA)
The Appellate Division reversed the Supreme Court finding that neither the plaintiff nor the defendants submitted evidence sufficient to establish their prima facie entitlement to summary judgment. The defendants failed to demonstrate, inter alia, that the plaintiff was provided with adequate safety devices and that, therefore, there was no violation of Labor Law § 240(1) (see Von Hegel v Brixmor Sunshine Sq., LLC, 180 AD3d 727), and the plaintiff failed to establish, prima facie, that a failure by the defendants to provide an adequate safety device was a proximate cause of his accident (see Acosta v Shanahan Group, LLC, 240 AD3d 557).
PRACTICE POINT:
Where the plaintiff is the sole proximate cause of his or her own injuries, there can be no liability under Labor Law § 240(1). A plaintiff may be the sole proximate cause of his or her own injuries when "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"
Plaintiff was assisting coworkers drilling micropiles on a bridge replacement project when a breakout wrench struck him. The L.C. Whitford, Co., Inc. (Whitford) was the general contractor and plaintiff worked for a subcontractor.
The trial court denied Whitford’s motion as to Labor Law § 200 and common-law negligence except to the extent those claims relied on OSHA violations or an “inherent defect theory of liability based on actual or constructive notice.
Labor Law § 200 and Common-Law Negligence (MRV)
The Appellate Division held that the lower court erred in denying defendant’s motion for summary judgment on plaintiff’s § 200 and common-law negligence claims because defendant established as a matter of law that it did not actually direct or control the work of drilling the micropiles. There is not direction or control where the general contractor merely informed the worker of work that should be performed. There is only direction and control when the general contractor specifies how the work should be performed (see Byrd v Roneker, 90 AD3d 1648, 1650, 936 N.Y.S.2d 434 [4th Dept 2011]). A general duty to ensure compliance with safety regulations, the authority to stop work for safety reasons, or the monitoring of the timing and quality of the work are insufficient to create a quest of fact as to whether defendant exercised direction or control over the manner of plaintiff’s work.
Plaintiff was cutting vinyl flooring planks on a construction site when a table saw injured him. He worked for LJ Construction WNY LLC, the general contractor on a six-unit apartment project owned by Ledgestone Village LLC and both entities were solely owned by the same individual. Ledgestone filed third-party complaint against LJ Construction asserting common-law indemnification and contribution.
The trial court granted Ledgestone conditional summary judgment on liability for common-law indemnification.
Labor Law § 200 and Common-Law Negligence (MRV)
The Appellate Division held that Ledgestone made a prima facie showing that it did not supervise or control the injury0causing work while also showing that LJ Construction exercised actual supervision and control over the work. LJ Construction hired plaintiff, gave him work orders on the jobsite, provided all equipment and supplies at the jobsite, and was solely responsible for directing and controlling plaintiff’s work. LJ Construction failed to raise a genuine issue of material fact as to whether Ledgestone actually controlled, directed, or supervised the injury-causing work.
Indemnity Issues in Labor Law (AMC)
The Appellate Division upheld the Trial Court’s decision, granting Ledgestone’s motion seeking conditional summary judgment regarding common-law indemnification against LJ. The Appellate Division found that Ledgestone satisfied its initial burden of showing that LJ exercised actual supervision or control over the injury-causing work, and that LJ failed to raise a genuine issue of material fact regarding whether Ledgestone actually controlled, directed, or supervised the injury-producing work.
New York Industrial Code Regulations (EDA)
|
|
Regulation § 23–1.27 Mechanical, hydraulic and pneumatic jacks.
(d) When an object or structure has been raised to a desired height by means of a jack, such object or structure shall be immediately blocked or cribbed.
|
|
Smith v LeFrois Development, LLC, 28 AD3d 1133, 817 NYS2d 456 (4th Dept 2006) (§ 23-1.27(d), which requires that objects or structures raised to desired height by means of jacks be immediately blocked or cribbed, inapplicable to where worker struck by steel pin that fell from steel beam which had been supported by column raised by forklift).
|
Found to be applicable and specific enough to sustain 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
Associate Editor
Marten R. Violante
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.
|
|
|
|
|
