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Vargas v 622 Third Ave. Co. LLC
December 12, 2024
Appellate Division, First Department
Plaintiff slipped on a puddle of water in a staircase at 622 Third Avenue's property. At the time of the accident, plaintiff was employed by JK Flooring and was at the property to install flooring as part of a renovation project. JT Magen was the general contractor for the project. Plaintiff testified that he was required to report to an employee of JT Magen, that such employee was aware of a wet condition in the staircase and had complained about it earlier in the day, and that the employee specifically instructed plaintiff to use that staircase without warning him of the dangerous condition, instead of other means of access to floors to which plaintiff needed to travel.
The trial court denied JT Magen's motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claim against it, denied 622 Third Avenue's motion for summary judgment on its contractual indemnification claim against JK Flooring, denied JK Flooring’s motion for summary judgment dismissing all the contractual indemnification claims asserted against it, and granted AFR’s motion for summary judgment on its contractual indemnity claim against JK Flooring. The trial court also denied Interpublic Group’s and 622 Third Avenue’s motion to dismiss contractual indemnity claims against it, all the common-law indemnification and contribution claim against it, and the entirety of the second third-party complaint as against it and denied AFR's motion for summary judgment dismissing JK Flooring's and JT Magen's crossclaims against it.
 Labor Law § 200 and Common-Law Negligence (EDA)
The First Department affirmed the trial court’s decision denying summary judgment to JT Magen to dismiss plaintiff's Labor Law § 200 and common-law negligence claims. It found a triable issue of fact as to whether JT Magen had, and exercised, control over the way plaintiff performed his work and could have avoided exposing plaintiff to the unsafe condition which led to his injury.
 Indemnity Issues in Labor Law (AMC)
The First Department held that the trial court properly denied JT Magen’s motion s there was a negligence trigger in the indemnification provision, and the Court found questions of fact as to whether JT Magen was negligent and if that negligence caused plaintiff’s accident, it was not entitled to summary judgment dismissal of the contractual indemnification cases of action.
The Court affirmed the trial court’s decision to deny JK Flooring’s motion for summary judgment seeking to dismiss the contractual indemnification claims against it. The indemnification agreement provides that JK Flooring will indemnify the “owner, owners consultant, the building landlord, and their … employees, agents and representatives …” JK Flooring failed to establish that the parties seeking indemnity under the agreement do not fall within its terms, and that it was not negligent, or its negligence did not, at least in part, cause plaintiff’s injury.
The Court further held that 622 Third Avenue failed to establish its entitlement to summary judgment on its contractual indemnity claim against JK Flooring as it failed to establish that it was free from any negligence. Specifically, it failed to establish that it did not create a hazardous condition or lacked actual or constructive notice of the condition.
Harjo-Codd v Tishman Constr. Corp.
December 17, 2024
Appellate Division, First Department
Plaintiff rode in a bucket lift to affix plastic sheets to façade scaffolding at the fourth-floor level of a building leased by defendant museum, when the lift suddenly became snagged on the scaffolding before the bucket then popped free of the scaffolding, ejecting plaintiff in the process. Plaintiff wore a harness and lanyard that had a retractable, protective device that did not operate as designed to keep her inside the bucket. Plaintiff fell 20 feet down from the bucket before the lanyard arrested her fall, and she allegedly sustained gravity-related injuries. The trial court denied plaintiffs' motion for partial summary judgment on their Labor Law § 240(1) claim as premature.
 Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court’s decision and granted the motion. Plaintiffs’ proof established her entitlement to partial summary judgment under Labor Law § 240(1) because her accident arose from a gravity-related risk that defendants failed to adequately protect her from. Affidavits from plaintiff and her coworkers established the mechanism of the accident, and the affidavit from the construction manager’s representative acknowledged that the accident occurred in such manner, amount to an admission of such facts. While the incident reports prepared by the construction manager and subcontractors corroborated how the accident happened, they were not authenticated by the preparers of such reports and, thus, were not admissible. Nonetheless, even absence the incident reports, the Court held that plaintiffs’ proof established entitlement to summary judgment despite that discovery remained outstanding.
In opposition, the Court held that defendants failed to raise a triable issue of fact. Nor have they made an evidentiary showing that discovery may lead to evidence that would raise a triable issue to warrant denial of plaintiff’s motion
PRACTICE POINT: Summary judgment is awarded in cases such as this where plaintiff’s incident arose from a gravity-related risk against which defendants failed to adequately protect against. Pursuant to CPLR § 3212(f), summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence, which defendant failed to do in this case.
Gkoumas v Lewis Constr. & Architectural Mill Work
December 31, 2024
Appellate Division, First Department
Plaintiff’s accident allegedly occurred when his ladder shifted, causing him to fall to the ground. However, he also submitted the transcript of his supervisor's deposition testimony that plaintiff called right after his accident, said that he cut his hand because his tool slipped, but did not say that he had fallen from a ladder. The trial court granted plaintiff's motion for summary judgment on the Labor Law § 240 (1) claim against Lewis Construction and Construction NYC.
Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court’s decision and denied plaintiff’s motion. By submitting the transcript of his supervisor’s deposition testimony, the Court found that plaintiff effectively adopted it as accurate. Therefore, plaintiff called into question his own credibility regarding the way his accident occurred. Accordingly, plaintiff’s motion should have been denied without regard to the sufficiency of the opposition papers.
PRACTICE POINT: Where a plaintiff is the sole witness to an accident, an issue of fact may exist where he or she provides inconsistence accounts of the accident, his or her account of the accident is contradicted by other evidence, or his or her credibility is otherwise called into question with regard to the accident. Bonus points if you caught the inadmissible hearsay, which still may still be considered on summary judgment when it is not the only evidence in the record.
Jaimes-Gutierrez v 37 Raywood Dr., LLC
December 11, 2024
Appellate Division, Second Department
Plaintiff, an employee of nonparty Global Security, reported to 37 Raywood Drive to install an alarm and surveillance system on a townhouse construction project on which Be & Yo Realty, acted as general contractor. Plaintiff was installing the alarm and surveillance system at the premises, while standing on an attic ladder, when the ladder came off its hinges and otherwise collapsed, causing him to fall. He described the ladder as an attic, pull-down, hinged ladder. The trial court denied plaintiff's motion for summary judgment on the Labor Law §§ 240(1) and 241(6) claims and granted defendants' cross-motion for summary judgment dismissing the complaint.
Labor Law § 240(1) (MAS)
The Second Department reversed the trial court’s decision, finding that the pull-down attic stairs, in effect, operated as a safety device within the meaning of § 240(1), since it served as the functional equivalent of a ladder at the time of the accident. Plaintiff’s testimony that the pull-down attic stairs detached from the ceiling and fell as he was ascending them causing him to fall, demonstrated that defendants violated the statute, and this violation proximately caused his injuries. Similarly, given plaintiff’s testimony that the pull-down attic stairs fell as he was ascending them, the Court also held that defendants failed to demonstrate that the pull-down stairs provided proper protection.
PRACTICE POINT: This case highlights how critical it is when conducting depositions to know what testimony you need from each witness to prove your claim or defense. Here, plaintiff testified that he had to access the attic as part of his work, that the pull-down attic stairs could not be removed from their location, and that these stairs were the only way of accessing the attic, which were crucial facts in the court’s determination that the pull-down attic stairs essentially operated as a safety device under § 240(1).
 Labor Law § 241(6) (TPW)
The Second Department also reversed the trial court’s decision, finding that Industrial Code (12 NYCRR) 23-1.21(b)(1), which requires that “[e]very ladder shall be capable of sustaining without breakage, dislodgement or loosening of any component at least four times the maximum load intended to be placed thereon” was violated.
Wright v Pennings
December 11, 2024
Appellate Division, Second Department
Plaintiff was injured when he was struck by an unsecured 20-foot extension ladder that fell when his coworker was installing wiring in a barn operated by defendant. Plaintiff's coworker placed the bottom of the ladder on a rubber mat that allegedly was covered in cow manure and hay, and began climbing the ladder, which resulted in the ladder falling and ultimately striking plaintiff on the head. At the time of the accident, plaintiff was performing electrical work at the ground level 15 to 20 feet away from his coworker.
The trial court denied plaintiff's motion for partial summary judgment on liability under Labor Law § 240(1) and granted defendant's motion for summary judgment dismissing the amended complaint.
Labor Law § 240(1) (MAS)
The Second Department reversed the trial court’s decision, granted plaintiff’s motion and denied defendant’s motion. Plaintiff’s evidence showed his coworker stepped on an unsecured ladder, the ladder slipped on a rubber mat covered in cow manure and hay, and the ladder fell forward, striking plaintiff’s head and causing injuries. The Court held the failure to properly place and secure the ladder amounted to a statutory violation, which proximately caused plaintiff’s injuries when the ladder “proved inadequate to shield [him] from harm directly flowing from the application of the force of gravity to an object or person” and the hazard presented here is the type contemplated for under the statute.
In opposition, the Court further held that defendant failed to raise a triable issue of fact. Contrary to defendants’ contention, the risk of injury was foreseeable because of the statutory violation, and the protections provided under the statute are not limited to injuries caused by falling objects that were being hoisted or secured. Moreover, the coworker’s improper placement of the ladder was not of such an extraordinary nature or so attenuated from a violation of § 240(1) as to sever the causal nexus between defendants’ statutory violation and plaintiff’s injuries.
PRACTICE POINT: To establish liability under § 240(1), a plaintiff must demonstrate both that the statute was violated (e.g., failing to properly place and secure the ladder) and that the violation was a proximate cause of his or her injuries. With respect to accidents involving ladders, liability will be imposed when, as here, the evidence shows that the subject ladder was inadequately secured and that the failure to secure the ladder was a substantial factor in causing plaintiff’s injuries.
Labor Law § 241(6) (TPW)
To prevail on a Labor Law § 241(6) claim based on a violation of Industrial Code 23-1.8(c)(1), plaintiff must establish that the job was a hard hat job and that the failure to wear a hard hat was a proximate cause of his or her injury. Here, the Second Department held that defendant failed to establish that the relevant work was not a hard hat job or that plaintiff’s lack of head protection played no role in the injuries he sustained when he was struck in the head by the ladder.
Industrial Code 23-1.21(b)(4)(ii) provides that “[a]ll ladder footings shall be firm. Slippery surfaces and insecure objects such as bricks and boxes shall not be used as ladder footings.” Here, the Court held that defendant failed to establish that the rubber mat covered with cow manure and hay was not a slippery surface for purposes of this regulation.
Labor Law § 200 and Common-Law Negligence (EDA)
The Second Department reversed the trial court’s decision, finding that defendant's conclusory statements in his affidavit that he did not recall having entered the barn on the day of the accident and that he was unaware of plaintiff's accident were insufficient to establish that he lacked actual or constructive notice of the alleged slippery condition.
Keen v Tishman Constr. Corp. of N.Y.
December 24, 2024
Appellate Division, Second Department
Plaintiff was injured in the course of her employment as a carpenter shop steward at a construction site owned by Meushar. Plaintiff testified that the bottom of an unsecured wooden "job-built" ladder she was ascending to access a concrete wall, which was 3½ to 4½ feet above the ground, slid away from the wall causing her to fall. Plaintiff's right leg became "tangled" in the ladder and hit her knee on either the ladder or the wall. The top portion of plaintiff's body landed on the concrete wall. The trial court granted plaintiff's motion for summary judgment on the Labor Law § 240(1) claim against Tishman, the general manager, and Meushar.
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s decision. In opposition to plaintiff’s showing of her entitlement to judgment as a matter of law regarding liability under § 240(1) against defendants, the Court found that defendants failed to raise a triable issue of fact. Contrary to defendants’ contention, the record does not reveal differing versions of the accident, one under which defendants would be liable and another under which they would not. While defendants properly contend that plaintiff waived any objection to the admissibility of certain incident report, those reports, at most, establish comparative negligence, which is not a defense to a Labor Law § 240(1) claim.
PRACTICE POINT: Where an accident is caused by a violation of the statute, plaintiff’s negligence does not furnish a defense. Thus, once plaintiff demonstrates the statute was violated and that the violation proximately caused his or her injuries, the burden shifts to defendant to defeat the motion only if there is a plausible view of the evidence – enough to raise a question of fact – that there was no statutory violation and plaintiff’s own acts or omissions were the sole proximate cause of the accident. In this case, defendant failed to meet that burden.
Brongo v Town of Greece
December 20, 2024
Appellate Division, Fourth Department
The Town of Greece (“the Town”) contracted with plaintiff’s employer to perform milling and asphalt work on the Town's road. As part of the project, plaintiff operated a water truck used to cool the mill's blades. Plaintiff drove to a fire hydrant located at the Town's Department of Public Works to fill his water tank. However, the hose attached to the hydrant was torn, frayed and lacked a coupler to connect the hose to the truck's fill port. Plaintiff attempted to use the hose to fill the truck through the top, but the force of the water through the hose caused it to whip around, knocking plaintiff off a ladder used to access the top of the truck and causing plaintiff injuries. The trial court granted the Town’s motion for summary judgment dismissing the amended complaint against it and denied the cross-motion of plaintiffs seeking leave to amend the bill of particulars.
Labor Law § 241(6) (TPW)
The Fourth Department affirmed the trial court’s decision as the Town met its initial burden with respect to the Labor Law § 241(6) claim and, in response, plaintiffs failed to raise a triable issue of fact as 12 NYCRR 23-9.2(a) was not applicable to the facts of this case.
Labor Law § 200 and Common-Law Negligence (EDA)
The Fourth Department reversed the trial court in dismissing the Labor Law § 200 and the common law negligence claims, finding that the Town failed to address plaintiffs' allegations in the amended complaint and bill of particulars regarding an unsafe premises condition and therefore, did not establish a prima facie case.
Bacon v Shults Mgt. Group, Inc.
December 20, 2024
Appellate Division, Fourth Department
Plaintiff was injured when he tripped on an electrician's pull string that had one end tied to a door handle at a construction site, with the other end left lying on the ground. The pull string had previously been used to hold the door open by having one end tied to the door handle and the other end tied to a post, but the door was closed at the time of plaintiff's accident. When plaintiff opened the door, the pull string cinched around one of his feet, causing him to fall. Ahlstrom was an electrical subcontractor on the construction project. The trial court denied Ahlstrom’s motion for summary judgment.
Labor Law § 241(6) (TPW)
The Fourth Department reversed the trial court’s decision and dismissed the § 241(6) claim against Ahlstrom as plaintiffs abandoned this claim by failing to oppose Ahlstrom’s motion and failing to address this claim on appeal. Kessel’s contention regarding this claim was raised for the first time on appeal; therefore, it was not properly before the Court.
Labor Law § 200 and Common-Law Negligence (EDA)
The Fourth Department reversed the trial court’s decision and dismissed the Labor Law § 200 and common law negligence claims, finding that Ahlstrom met its initial burden of establishing that it did not have any authority to supervise and control plaintiff's work or the safety of the area involved in the incident. In opposition to that motion, the Court held that plaintiffs and Kessel, the general contractor on the construction project, failed to raise a triable issue of fact. With respect to plaintiffs, they abandoned those causes of action against Ahlstrom by not opposing the dismissal of those claims and not addressing those causes of action on appeal (see Allington v Templeton Found., 167 AD3d 1437, 1439 [4th Dept 2018].
Indemnity Issues in Labor Law (AMC)
The Fourth Department held the trial court did not err in denying Ahlstrom’s motion seeking contractual indemnification as there was an issue of fact as to whether Ahlstrom created the alleged defective condition and was, therefore, negligent.
Verhoef v Dean
December 20, 2024
Appellate Division, Fourth Department
Plaintiff and his coworker were on the roof of the concession stand at defendant's commercial property replacing rubber flashing around plumbing ventilation pipes when plaintiff fell from the roof and landed on a concrete pad. It is undisputed that defendant did not supply plaintiff with any safety devices for the work on the roof. The trial court granted defendant’s cross-motion for summary judgment dismissing the Labor Law § 240(1) claim and denied plaintiff’s motion for partial summary judgment on that claim.
Labor Law § 240(1) (MAS)
The Fourth Department unanimously reversed the trial court’s decision, finding that plaintiffs established as a matter of law that the injury was caused by the lack of enumerated safety devices, the proper placement and operation of which would have prevented plaintiff from falling off the roof. Plaintiff also was engaged in repair work on the proof – a protected activity under 240(1) – and not simply routine maintenance of a component damaged by wear and tear. Plaintiff was performing roofing repair to ensure that the roof of the concession stand was no longer leaking – precisely the type of work that courts have long held to be protected under the statute.
Insofar as defendant asserts that the flashing plaintiff was repairing at the time of his fall was not actively leaking, such a contention is immaterial to whether plaintiff was performing a protected activity, as it would be inconsistent with the spirit of the Labor Law to isolate the moment of injury and ignore the general context of the work.
PRACTICE POINT: Delineating between routine maintenance and repairs is frequently a close, fact-driven issue and that distinction depends on whether the item being worked on was inoperable or malfunctioning prior to the state of the work and whether the work involved the replacement of components damaged by normal wear and tear. Here, the court found that the rubber flashing was malfunctioning and inoperable prior to replacement and that the work being performed by plaintiff at the time of the accident was necessary to restore the proper functioning of the roof. The rubber flashing was not merely a “component” of a ventilation system but was an integral part of a proper functioning roof.
New York Industrial Code Regulations (EDA)
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