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Cruz v PMG Constr. Group LLC
March 4, 2025
Appellate Division, First Department
Plaintiff, a metal and glass worker, was injured when a 225 to 250 pound, 4' x 10' glass window tipped over and struck the back of his legs. Prior to the accident, the window had been leaning against a stack of approximately four other windows, all similar in size and all of which were propped up against the wall. Plaintiff had just removed a suction cup carrier from the window and had taken only three to four steps towards a nearby A-frame dolly when the window fell on him. Plaintiff commenced an action against defendants, alleging violations of Labor Law §§ 240(1), 241(6), and 200. The Trial Court denied defendants’ motion for summary judgment dismissing the complaint.
 Labor Law § 240(1) (DRA)
The Appellate Division unanimously affirmed the Supreme Court holding that it properly denied defendants' motion for summary judgment because the parties submitted conflicting expert opinions raising triable issues of fact. Defendants' expert engineer opined there was a de minimis elevation risk because the window could not generate sufficient force as it toppled over and fell a short distance to the floor. Therefore, the window did not require additional securing devices. In opposition plaintiff's expert opined, based on empirical data, industry standard, and witness testimony, that the weight, length, and height of the glass window, when toppled, created a significant, harmful force, even over the course of a relatively short descent, that warranted securing for the purpose of the undertaking (see Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 10 [2011]; Lopez v 106 LPA LLC, 222 AD3d 526, 527 [1st Dept 2023]; Grigoryan v 108 Chambers St. Owner, LLC, 204 AD3d 534, 534 [1st Dept 2022]).
PRACTICE POINT: Conflicting expert opinions preclude the court from rendering a decision as to the § 240(1) claim as the defendant expert opines that the glass does not need securing as the window could not generate sufficient force to injure, and the plaintiff’s expert opines the opposite. Sounds like a true question of fact but a bit of a head scratcher as the plaintiff is claiming injury, and thus, it would seem to me that it did generate sufficient force to injure unless the plaintiff was not actually injured in the accident.
 Labor Law § 241(6) (TPW)
The First Department held that the lower court should have dismissed plaintiff's Labor Law § 241(6) claim predicated upon Industrial Code (12 NYCRR) § 23-2.1(a)(1). The Industrial Code regulation requires that materials not obstruct a passageway, walkway, stairway, or other thoroughfare. Plaintiff failed to raise an issue of fact as to whether there was a violation because the evidence shows that "the materials were not . . . obstructing a passageway".
 Labor Law § 200 and Common-Law Negligence (EDA)
The Appellate Division unanimously reversed the Supreme Court finding that Plaintiff testified at his deposition that he received his work instructions only from his employer, a glass subcontractor. There was no evidence that defendants supervised and controlled the means and methods of plaintiff's injury-producing work. The Court reiterated that the general authority of certain defendants to stop the work for safety reasons is insufficient to raise a factual issue (see Villanueva v 114 Fifth Ave. Assoc. LLC, 162 AD3d 404, 406-407 [1st Dept 2018]).
Rivera v 454 W. 57th St. Holding LLC
March 11, 2025
Appellate Division, First Department
Plaintiff and his coworkers were replacing a drainpipe at a building owned by defendants when a section of the drainpipe allegedly fell and struck plaintiff in the face, injuring him. The Trial Court granted plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim.
Labor Law § 240(1) (DRA)
The Appellate Division unanimously affirmed the Supreme Court holding that Plaintiff established that the pipe "required securing for the purposes of the undertaking" (Rivas v Seward Park Hous. Corp., 219 AD3d 59, 64 [1st Dept 2023]). It further rejected the argument that the pipe could not be considered a permanent part of the building, given that it was installed by plaintiff and his coworkers just moments before it fell on him.
PRACTICE POINT: A falling object which was in need of being secured but which is not properly secured such that it falls and causes injury, will be a § 240(1) case with summary judgment for the plaintiff in most cases.
Harnisch v City of New York
March 18, 2025
Appellate Division, First Department
On the day of the accident, Plaintiff was employed by non-party, Outfront Media as a working foreman, billboard erector and/or installer assigned to a project located at or near the Major Deegan Expressway, South of Van Cortlandt Park, near West 234th Street, Bronx County. He was instructed by his supervisor to assess the integrity and safe access to an outdoor advertising billboard at the site and tasked to hang an advertisement.
Plaintiff testified that he previously completed a refurbishment of the subject billboard structure, which included permanently affixing a safety cable to the structure and removing steel that deteriorated or was damaged. On the date of the accident, the plaintiff was tasked to assess and inspect the damage to the steel and tag for future structural repairs.
Upon arrival at the job site, plaintiff and a coworker set up a 24-foot-long fiberglass and aluminum Werner extension ladder owned by plaintiff's employer. The ladder was then secured to the billboard's "catwalk" (about 19-feet high) with hooks and a strap. He inspected the ladder before using it and believed it was in good working order and in "usable condition”. He also testified that he knew how to check the ladder for cracks in the fiberglass rails; that the rungs were securely attached; and that the safety locks were in working order. Plaintiff and his fellow coworkers climbed the subject ladder to the structure one at a time to perform their assigned tasks. At the time of the accident, the plaintiff unclipped his lanyards from the billboard structure to permit him to descend from said structure. When the plaintiff got onto the extension ladder to descend, the ladder suddenly and without warning retracted and caused him to fall to the ground and sustain injury.
CSX Transportation, Inc. (“C-CSX”) and EIB Riverdale Crossing LLC (“EIB”) moved for summary judgement dismissing plaintiff’s § 200, 240(1), and 241(6) Labor Law claims against then. Plaintiff moved for summary judgment pursuant to Labor Law § 240(1) and 241(6).
The Trial Court denied C-CSX and EIB’s motion for summary judgment as to plaintiff’s 240(1), 241(6) and § 200 claims, and denied plaintiff’s motion for summary judgment.
Labor Law § 240(1) (DRA)
The Appellate Division unanimously affirmed the Supreme Court finding that Plaintiff's work replacing a billboard advertisement without changing the structure of the billboard was "more akin to cosmetic maintenance or decorative modification than to altering for the purposes of Labor Law § 240(1). Further he was not "effect[ing] a significant physical change to the configuration or composition" of the billboard. (Castaneda v Amsterco 67, LLC, 220 AD3d 406, 406 [1st Dept 2023]
PRACTICE POINT: The changing of the face of a billboard is not a change to an actual structure and thus does not qualify under § 240(1). In an aside, where an addition is added to the actual billboard then the structure was altered, and a § 240(1) case is valid.
Labor Law § 241(6) (TPW)
The First Department held that because "no construction, excavation, or demolition was ongoing at the time of plaintiff's accident," plaintiff's Labor Law § 241(6) claim was not viable.
Labor Law § 200 and Common-Law Negligence (EDA)
The Appellate Division unanimously reversed the Supreme Court finding that it should have granted the dismissal of the Negligence and Labor Law § 200 claims. Plaintiff's claim arose “from the method of work, involving an inadequate ladder," but CSX and EIB neither supplied the ladder nor exercised supervisory control over the work, therefore, no liability attaches under Labor Law § 200 or common law negligence. Yousuf, 219 AD3d at 1186; see also Breslin v Macy's, Inc., 211 AD3d 569, 569-570 [1st Dept 2022]).
Lucas v City of New York
March 18, 2025
Appellate Division, First Department
Plaintiff was working as a journeyman electrician installing wall thermostats for a renovation project at Columbia's Mudd Hall when a stack of 8 to 10 pieces of plexiglass tipped over and struck his feet, injuring him. Each plexiglass panel was approximately 9 feet tall, 46 inches wide, ½-inch thick, and weighed between 200 to 300 pounds. Plaintiff testified that the stacked panels were resting lengthwise on the ground against a wall, reaching the approximate height of his waist.
Columbia owned the premises and ACC Construction was the general contractor on the project. Nonparty DirectAire subcontracted the Schneider defendants to supply the thermostat components and related software. The Schneider defendants subcontracted plaintiff's employer to install the thermostats. ACC Construction subcontracted Workwell to install demountable partitions and Workwell in turn hired third-party defendant American Storage & Transportation, Inc. to deliver Workwell's materials to the site, including the glass panels at issue.
The Trial Court denied Columbia and ACC Construction’s motion for summary judgment dismissing plaintiff’s Labor Law §200 and common-law negligence claims, and their motion for partial summary judgment on contribution and common-law indemnification against Workwell. The Trial Court also granted plaintiff’s cross-motion for summary judgment on Labor Law § 240(1), and granted Schneider defendants motion for summary judgment dismissing the third party complaint against then,
Labor Law § 240(1) (DRA)
The Appellate Division unanimously affirmed the Supreme Court. Initially the court found that defendants’ argument the cross motion was untimely unavailing because plaintiff's cross-motion sought nearly identical relief as Columbia's and ACC Construction's motion for summary judgment on the same claim. Further, it found that plaintiff established prima facie entitlement to summary judgment through deposition testimony and photographs. The unrebutted opinion of plaintiff's expert established that even though the load was positioned on the same level as plaintiff and only fell a short distance, the weight of the plexiglass panels was capable of generating extraordinary force such that securing devices of the kind enumerated in Labor Law § 240(1) were needed to stabilize the load and make the worksite safe (see Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 10 [2011]. Columbia and ACC Construction failed to raise a triable issue of fact, and also as a result fail to prove their sole proximate cause argument.
PRACTICE POINT: We have been preaching for years that experts help. In this case, unlike the Cruz case above, only the plaintiff retained an expert to opine that even though the load was positioned on the same level as plaintiff and only fell a short distance, the weight of the plexiglass panels was capable of generating extraordinary force such that securing devices of the kind enumerated in Labor Law § 240(1) were needed to stabilize the load and make the worksite safe”. (Language from the Wilinski decision from the Court of Appeals.)
Labor Law § 200 and Common-Law Negligence (EDA)
The Appellate Division unanimously affirmed the Supreme Court’s denial of the motion to dismiss these claims against ACC and Columbia because there was evidence that ACC Construction instructed Workwell where to stage the glass panels at the worksite. Moreover, there was evidence that ACC Construction's staging instructions differed from the regular practice of Workwell's delivery subcontractor, raising triable issues of fact as to whether ACC Construction supervised the means and methods of the injury producing work or had a part in creating a hazardous staging condition.
 Indemnity Issues in Labor Law (PCSM)
The Appellate Division found that the lower court properly denied Columbia’s and ACC’s motion for partial summary judgment on their causes of action for contribution and common-law indemnification against Workwell. The Appellate Division found triable issues of fact as to whether Workwell was non-negligent in the cause of plaintiff's accident and held that ACC, as the indemnitee, must show that it was non-negligent and neither caused the accident nor supervised and controlled the injury-producing work. The Appellate Division also found triable issues of fact as to whether ACC was negligent and contributed to the happening of plaintiff's accident by directing the placement of the glass panels and by directing that the staging take place while other trades were working in the area.
The Appellate Division also found that the lower court properly denied Columbia's and ACC's motion for summary judgment against Workwell for breach of contract for failure to procure insurance. The Appellate Division noted that Columbia and ACC were required to show via testimonial or documentary evidence from Workwell's insurer that they were not named as insureds on any policies issued and held that Columbia's and ACC's unsubstantiated statements that Workwell lacked the requisite insurance did not meet their prima facie burden.
Argueta v 39 W 23rd St. LLC
March 25, 2025
Appellate Division, First Department
Plaintiff was injured when a metal post which was 9 to 11 feet long and weighed approximately 150 pounds and was leaning against a truck, fell on him as he was kneeling to adjust other posts. The Supreme Court granted plaintiff's motion for summary judgment on the Labor Law § 240(1) claim as against defendants 39 W 23rd Street LLC and Pizzarotti LLC.
Labor Law § 240(1) (DRA)
The Appellate Division unanimously affirmed the Supreme Court finding that Given the weight and length of the post and the distance it fell, Plaintiff’s testimony established that plaintiff was exposed to an elevation-related risk. In opposition, defendants failed to submit evidence to raise a triable issue of fact. Defendant proffered unsworn statements that the posts weighed 30-50 pounds, which were hearsay and were offered for their truth, did not raise an issue of fact.
Plaintiff also established that the failure to secure the post with an adequate safety device was a proximate cause of his injuries. In opposition, defendants failed to establish that the posts were purposely not tied off because they were in the process of being loaded onto the truck, as they did not submit any evidence to support this assertion
PRACTICE POINT: Wilinski again, heavy post falls from ground level onto plaintiff, causes injury, plaintiff wins. We knew that Wilinski was going to be an important case, and bad for us, from the day it came out.
Velez v LSG 105 W. 28th, LLC
March 27, 2025
Appellate Division, First Department
Plaintiff fell from an elevation of five feet. He was not provided with an adequate safety device and was instructed by his foreman to climb a concrete form to complete his assigned task. The Supreme Court granted plaintiff's motion for summary judgment on his Labor Law § 240(1) claim against defendants/third-party plaintiffs LSG 105 West 28th, LLC and Flintlock Construction Services LLC, denied LSG and Flintlock's motion for summary judgment dismissing the Labor Law § 240(1) claim and for summary judgment on their third-party claims for contractual indemnification, common-law indemnification, and contribution as against third-party defendant Construction & Realty Safety Group, Inc. (CRSG), and granted CRSG's motion for summary judgment dismissing the third-party complaint,
Labor Law § 240(1) (DRA)
The Appellate Division unanimously affirmed the Supreme Court. Plaintiff established his prima facie case by submitting proof that he fell from an elevation of five feet, that he was not provided with an adequate safety device — namely, a ladder or harness — and that he was instructed by his foreman to climb a concrete form to complete his work. Plaintiff testified that his employer's general practice was to climb the concrete forms, rather than using a ladder, and that his foreman followed this practice. Plaintiff's testimony also established that even though ladders were generally available, he was not instructed to use one, nor did he know if any ladders were in the location he was working on the day of the accident.
In opposition, defendants failed to raise a triable issue of fact as to whether plaintiff was the sole proximate cause of his injuries or a recalcitrant worker because he did not use a harness or ladder. Although ladders and harnesses were generally available on site, defendants failed to show that plaintiff knew that he was expected to use them or that he decided not to use the safety equipment for no good reason.
PRACTICE POINT: This case points out the not-so-subtle point that even if you tell your employees that they must always use a safety device, here a ladder, but allow then to do the task without the safety device, here climbing the form instead of using the ladder, you have provided tacit approval for not using the safety device. In the instant case it is even worse, the employer is alleged to have actually directed the employee not to use the safety device, and therefore never had a chance in opposing the summary judgment motion.
Indemnity Issues in Labor Law (PCSM)
The Appellate Division found that the lower court properly denied summary judgment in favor of LSG and Flintlock as to their third-party claims for contractual indemnification, common law indemnification and contribution against CRSG. The Appellate Division noted that the contractual indemnification provision in the parties' agreement had a requirement that CRSG be negligent for the indemnification provision to be triggered and there was no evidence of negligence in the record. Likewise, the Appellate Division also found that the common-law indemnification and contribution claims were also properly dismissed as they also require a finding of negligence.
Ramirez-Gomez v Empire Today, LLC
March 5, 2025
Appellate Division, Second Department
Plaintiff was performing construction work at a property in New Jersey owned or controlled by the defendants when he was injured by a falling radiator. Plaintiff brought an action alleging violations of Labor Law § 200, 240(1), and 241(6). The Trial Court granted defendants Empire Today, LLC (“Empire”) and Kennedy All Flooring, LLC’s (“Kennedy”) motions to dismiss plaintiff’s common-law negligence claims against them.
Labor Law § 200 and Common-Law Negligence (EDA)
The Appellate Division unanimously reversed the Supreme Court’s dismissal of these claims against Empire and Kennedy for failure to state a claim holding that while "the protection afforded to New York employees by the Labor Law, including Labor Law §§ 200, 240(1) and 241(6), has no application to an accident that occurs outside New York State, even where all parties are New York domiciliaries" (Osborn v 56 Leonard LLC, 138 AD3d 624, 624, the inapplicability of the Labor Law to the case at bar is not a proper ground, standing alone, to dismiss the cause of action sounding in common-law negligence.
Ramos v Kent & Wythe Owners, LLC
March 5, 2025
Appellate Division, Second Department
In September 2016, the plaintiff allegedly was injured while working as a laborer for the third-party defendant R & M Repairs and Maintenance, Inc. (hereinafter R & M), a subcontractor hired by the defendant L & M Builders Group, LLC (hereinafter L & M Builders), to perform cleaning services at a building under construction. On the date of the accident, the plaintiff was using an A-frame cart to move sheetrock across an unfinished concrete floor at the construction site. The plaintiff allegedly was injured when the A-frame cart turned over and fell, along with the sheetrock, trapping the plaintiff's legs and waist.
The plaintiff commenced this action against the defendants, Kent & Wythe Owners, LLC, L & M Kent & Wythe Managers, LLC, Congress Builders, LLC, and L & M Builders (hereinafter collectively the L & M defendants) to recover damages for personal injuries. The L & M defendants thereafter commenced a third-party action against R & M, inter alia, for indemnification.
The Trial Court denied plaintiff’s cross-motion for summary judgment on his Labor Law § 240(1) claims, denied plaintiff’s motion for leave to amend the bill of particulars, and granted third-party plaintiffs and third-party defendant’s motions for summary judgment dismissing the complaint.
Labor Law § 240(1) (DRA)
The Appellate Division unanimously affirmed the Supreme Court holding that L & M defendants and R & M established, prima facie, that the plaintiff's injuries were not caused by an elevation-related or gravity-related risk within the scope of Labor Law § 240(1). In opposition, the plaintiff failed to raise a triable issue of fact.
PRACTICE POINT: Welcome to the Second Department. Unlike the First Department decisions above citing Wilenski, the second held that a cart full of sheet rock which tips over and lands on the plaintiff. Now there are two possibilities that I can see for the decision, as none are specifically provided by the court. The easy one would be that the cart was mobile and thus could not be secured against tipping over. The other is that this is the Second Department, and they put more responsibility on the plaintiff for his or her actions. I get it, it is likely the first reason, but a man can hope, can’t he?
Labor Law § 241(6) (TPW)
In affirming the grant of that portion of defendants’ motions for summary judgment, the Second Department reiterated that "Labor Law § 241(6) imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers" … "to establish liability under Labor Law § 241(6), a plaintiff must demonstrate that his or her injuries were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the case."
Defendants established that the Industrial Code provisions relied upon by plaintiff were inapplicable to the facts of this case. In particular, the evidence showed that the accident did not occur in a "passageway" as contemplated by 12 NYCRR 23-1.7(e)(1). Moreover, the alleged grooves in an unfinished concrete floor at the construction site, which were described as having a depth of approximately one inch, were not the type of hazard regulated by 12 NYCRR 23-1.7(e)(2). In opposition, plaintiff failed to raise a triable issue of fact as to the applicability of the Industrial Code provisions upon which he relied.
Labor Law § 200 and Common-Law Negligence (EDA)
The Appellate Division reversed the Supreme Court finding it erred in dismissing the Labor Law § 200 claim. L & M defendants and R & M failed to establish, prima facie, that the plaintiff had the means necessary to safely move the sheetrock on the day of the accident, that the L & M defendants did not have the authority to exercise supervision and control over the subject work, or that the accident did not arise out of a dangerous condition at the premises, that the condition involving grooves in the unfinished concrete floor was trivial as a matter of law. As such, the sufficiency of Plaintiff’s papers was irrelevant.
Bayron Chay Mo v Ultra Dimension Place, LLC
March 12, 2025
Appellate Division, Second Department
The plaintiff alleged that in 2019, he fell through a hole in a roof while employed by an unnamed subcontractor as a day laborer. The plaintiff asserted causes of action alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). The defendants moved to dismiss the complaint, plaintiff did not submit opposition to the motion, and the Trial Court granted defendant’s Motion dismissing the complaint. Thereafter, plaintiff moved to vacate the order and deny defendants motion to dismiss. The Trial Court denied plaintiff’s motion and did not vacate the prior order.
Labor Law § 240(1) (DRA)
The appellate Division reversed the Supreme Court and found that the plaintiff provided a reasonable excuse for his failure to submit timely opposition to the defendants' motion pursuant to CPLR 3211(a)(7) to dismiss the complaint. Moreover, on appeal, the defendants did not contest that the plaintiff established a reasonable excuse for his default in opposing their motion. Additionally, it found that the plaintiff demonstrated that the defendants' motion should be denied. Because this was a motion to dismiss for failure to state a claim, the Court found that plaintiff alleged that his fall through the roof was the result of an elevation-related hazard caused by the failure to keep necessary safety devices in place and identified the defendants as the owners of the premises. Therefore, the plaintiff sufficiently pleaded a cause of action alleging a violation of Labor Law § 240(1).
PRACTICE POINT: Where, as here, the plaintiff falls through a hole in the roof, while working on the roof and has no safety devices, it is a tough defense, and none was available here. This is where risk transfer options, early liability assessment, and communication leading to early resolution are the key. The only thing defending liability will do is drive up legal expenses.
Labor Law § 241(6) (TPW)
As with Labor Law § 240(1) above, The Second Department concluded that plaintiff sufficiently pleaded a cause of action alleging a violation of Labor Law § 241(6) in that plaintiff alleged that he was employed in an area where construction was being performed and that his injuries were proximately caused by the failure to comply with applicable statutes, ordinances, rules, and regulations.
Labor Law § 200 and Common-Law Negligence (EDA)
The appellate Division reversed the Supreme Court. As noted above, the plaintiff alleged that the defendants failed to provide a safe place to work and that the defendants controlled and supervised the work at issue. Therefore, the plaintiff sufficiently pleaded causes of action alleging a violation of Labor Law § 200 and common-law negligence.
Lopes v County of Suffolk
March 19, 2025
Appellate Division, Second Department
The defendant County of Suffolk contracted with the defendant Gibson & Cushmane Contracting, LLC (hereinafter Gibson), to complete a bridge reconstruction project, and Gibson subcontracted with the plaintiff's employer to perform certain painting work, among other things. The plaintiff allegedly was injured during the course of performing this work on the project. According to the plaintiff, at the time of his accident, he was using a scaffold, which he had not set up and which was not equipped with any railings, when his vision became obscured by dust. The plaintiff stepped backwards and fell off of the scaffold, sustaining injuries.
Plaintiff moved for summary judgment based on a violation of Labor Law § 240(1), and the Trial Court granted plaintiff’s motion.
Labor Law § 240(1) (DRA)
The Appellate Division unanimously affirmed the Supreme Court finding that the plaintiff met his prima facie burden of demonstrating a violation of Labor Law § 240(1) and that this violation was a proximate cause of his injuries, through his deposition testimony that the scaffold that was set up for him did not have any safety railings, thus allowing him to fall backwards off the scaffold. In opposition, Gibson failed to raise a triable issue of fact. Additionally, Gibson's evidence failed to raise a triable issue of fact as to whether the plaintiff was recalcitrant in the sense that he knew that he was expected to use a safety harness, a man lift, or a scaffold different from the one already set up and deliberately chose, for no good reason, not to do so as the affidavit proffered was vague as to the instructions given to the plaintiff and the affiant lacked personal knowledge of the instructions.
PRACTICE POINT: Remember that the defense is sole proximate cause, and the word “sole” has meaning. Pointing out additional reasons for the accident, when at least one of them is not the plaintiff’s own actions, does not ever make the actions of the plaintiff the sole proximate cause of the accident. Here the failure to install a railing will always be a proximate cause, and thus, nothing else can ever be the sole proximate cause.
Marmolejo-Cuellar v Spar Knitwear Corp.
March 19, 2025
Appellate Division, Second Department
The plaintiff Ana Marmolejo-Cuellar (hereinafter the injured plaintiff) allegedly was injured when, while walking inside an office, she tripped and fell on loose, two-by-four pieces of wood, which had been temporarily placed on the floor. The office was located in a building owned by the defendant Spar Knitwear Corp. (hereinafter Spar) and was leased to the third-party defendant, Melcon General Contractors, LLC (hereinafter Melcon). On the date of the accident, the injured plaintiff was employed by Melcon as a secretary to perform clerical work within the office. The injured plaintiff also occasionally performed clerical work within the office for the defendant Southern Contractors, LLC (hereinafter Southern). Melcon and Southern are owned by the same principal.
Southern, Tamkat Building Corp., Spar, and Orkat Realty, Ltd. moved for summary judgment dismissing plaintiff’s complaint against them. The Trial Court dismissed plaintiff’s Labor Law § 200, 240(1), and 241(6) claims against all moving defendants, and dismissed the common-law negligence claim asserted against Spar.
Labor Law § 240(1) (DRA)
The Appellate Division unanimously affirmed the Supreme Court’s dismissal of the claim finding that Southern and the building defendants each established, prima facie, that the injured plaintiff was not within the class of persons subject to the protections of the Labor Law. In support of their respective motions, Southern and the building defendants submitted, among other things, a transcript of the deposition testimony of the injured plaintiff and of Eric Mendoza, the principal of both Melcon and Southern, which demonstrated that the injured plaintiff had not been retained to perform any repairs or construction work at the premises and was not engaged in the performance of any such work at the premises. In opposition, the plaintiffs failed to raise a triable issue of fact.
PRACTICE POINT: “A person so employed” is the definition in § 240(1). That person so employed must, however, be engaged in the work being done and not simply employed is some other capacity. The example I always used was the coffee truck that arrives on every construction site every day. If a beam fell from above and struck the driver of the truck and a welder on the site, the welder would have a case; however the driver would not have a § 240(1) case. To be clear, the negligence case for the driver would be very strong if the identity of who dropped the beam could be ascertained.
Labor Law § 200 and Common-Law Negligence (EDA)
The Appellate Division unanimously affirmed the Supreme Court’s dismissal of the Labor Law § 200 and common-law negligence claims. The building defendants established, prima facie, through the submission of the lease agreement and transcripts of the deposition testimony of certain parties, that Spar was an out-of-possession landlord that was not bound by contract or a course of conduct to maintain the interior of the premises where the injured plaintiff allegedly was injured. In opposition, the plaintiffs failed to raise a triable issue of fact.
Rahmonov v Purves Dev., LLC
March 19, 2025
Appellate Division, Second Department
In January 2017, the plaintiff allegedly was injured while working at a construction project at certain property owned by the defendant Purves Development, LLC (hereinafter the owner). At the time of the accident, the plaintiff was employed as a window installer by the third-party defendant V & P Altitude Corp. (hereinafter V & P). V & P was a sub-subcontractor on the project pursuant to a subcontract (hereinafter the V & P subcontract) it entered into with nonparty Pioneer Window Manufacturing Corp. (hereinafter Pioneer). Pioneer had been retained by the defendant S2 Construction, LLC (hereinafter the general contractor), to install windows at the property.
Plaintiff commenced an action for violations of Labor Law § 200, 240(1), and 241(6), against the owner, general contractor, and Silvercup Properties, LLC. Defendants commenced a third-party action against V & P asserting a cause of action for contribution, common-law indemnification, contractual indemnification, and breach of contract for failure to procure insurance. V & P moved for summary judgment dismissing the third-party complaint against it, which the Trial Court granted.
Indemnity Issues in Labor Law (PCSM)
The Appellate Division also found that V & P failed to establish its prima facie entitlement to the dismissal of the third-party claims for breach of contract for failure to procure insurance. The Appellate Division reasoned that by failing to submit the "Contract Documents," which included the subcontract between Pioneer and the general contractor, incorporated by reference into the insurance procurement provisions of the V & P subcontract, V & P failed to eliminate a triable issue of fact as to whether those contract documents contained provisions requiring it to obtain additional insured coverage for the benefit of the defendants.
Freas v John W. Danforth Co.
March 14, 2025
Appellate Division, Fourth Department
Plaintiff slipped and fell at a construction site on September 2, 2016. Defendant-third-party plaintiff, John W. Danforth Company (Danforth), was the general contractor on the construction project and hired Rochester Davis-Fetch Corp. (Davis-Fetch) as a subcontractor third-party defendant who was also plaintiff's employer. Danforth commenced a third-party action against Davis-Fetch, stating causes of action for contractual indemnification and failure to procure insurance.
Danforth moved for partial summary judgment against Davis-Fetch, seeking an order of contractual indemnification. Davis-Fetch cross-moved for summary judgment dismissing the third-party complaint. The Trial Court granted Danforth’s motion and denied the cross motion.
Indemnity Issues in Labor Law (PCSM)
The Appellate Division found that the lower court erred in granting Danforth’s motion and properly denied Davis-Fetch’s cross-motion seeking dismissal of the third-party claims as there was no agreement prior to plaintiff’s accident for Davis-Fetch to indemnify Danforth or to procure insurance for Danforth’s benefit. The Appellate Division noted that an indemnification agreement that is executed after a plaintiff's accident may be applied retroactively, but only where it is established that (1) the agreement was made prior to the accident and (2) the parties intended the agreement to apply as of that prior date. In the case at bar, two of Davis-Fetch's executives claimed that there was no discussion between Danforth’s representatives and Davis-Fetch’s representatives about the terms of the subcontract, including any indemnification provision, prior to signing the subcontract. On the other hand, there was evidence that the parties had worked together on a prior project that included a similar subcontract that was also signed after its effective date. As such, the Court found that neither party was entitled to summary judgment on the contractual indemnification claim and that Davis-Fetch was not entitled to summary judgment dismissal of the breach of contract for failure to procure insurance claim.
New York Industrial Code Regulations (EDA)
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