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Hernandez v Port Auth. of N.Y. & N.J.
May 1, 2025
Appellate Division, First Department
This action arises out of an accident at the World Trade Center Oculus Project. Structure Tone was the owner's general contractor in charge of overseeing the pre-build-outs of various retail stores in the Oculus. Structure Tone subcontracted certain drywall work to O'Kane Enterprises Ltd. and Centre Street Systems, Inc. (hereinafter CSS). After the pre-build-out of an Apple Store was completed in March of 2016, it was turned over to Apple's general contractor, Sajo, to oversee the store's build-out and finish work. Sajo subcontracted various work, including floor protection, to O'Kane. Sajo subcontracted HVAC work to PAI, which sub-subcontracted a portion of that work to PB Ventilating Systems, Inc. (PB Vent).
Plaintiff, a sheet metal worker employed by PB Vent, was installing ductwork in the Apple Store. He encountered a dolly, loaded with sheets of Masonite, and attempted to move it out of the way of where he needed to work. The dolly moved "a foot, maybe two" when it suddenly stopped and tipped over onto plaintiff. Photographs taken of the cart's wheels reflect that they were cracked and had an embedded nail. The dolly was marked "CSS" on the bottom, but the Masonite sheets were the materials of O'Kane, which used them in connection with its floor protection.
The Supreme Court granted plaintiff’s motion for partial summary judgment on their §241(6) claim against PAI and denied PAI’s motion for summary judgment on Plaintiff’s Labor Law §240(1), 241(6), 200, and common-law negligence claims and PAI’s contractual indemnification claim against PB Ventilating Systems, Inc.
The Court also granted defendants CSS motion for summary judgment on plaintiff’s Labor Law claims against it, denied the World Trade Center Owners, Apple Inc. and Sajo, Inc’s motion for summary judgment on plaintiff’ s Labor Law claims, denied the motion of CSS seeking dismissal of common-law claims and cross-claims as well as Structure Tone, Inc.’s claim for contractual indemnification against CSS, denied O’Kane summary judgment motion seeking dismissal of contractual indemnification claim against it by WTC Owners and Sajo, and granted their motion for contractual indemnification against O’Kane, and denied the motion of PB Vent to dismiss contractual indemnification claims against it.
 Labor Law § 240(1) (EDA)
The Appellate Division affirmed the motion court finding that Plaintiff was properly granted partial summary judgment on their Labor Law § 240(1) claim. Recalling Runner, the court also held that while the elevation difference was relatively short, the Masonite weighed approximately 1200 pounds, bringing the accident within the protections of the statute (see Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 9 [2011]. The Court also found that Defendants failed to show any error on plaintiff's part in moving the dolly which could not be the sole proximate cause of the accident given its defective condition (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 290 [2003].
PRACTICE POINT: Runner reshaped the essential analysis and framed § 240(1) cases with the seminal question as to, “whether the harm flows directly from the application of the force of gravity to the object.” If so, § 240(1) will apply even if the person or an object does not fall.
Labor Law § 200 and Common-Law Negligence (EDA)
The Appellate Division found that the motion court correctly denied summary judgment to Sajo as to plaintiff's Labor Law § 200 claim. Sajo, the general contractor, failed to make out a prima facie showing that it was not on notice of the defective dolly being used on its project. PAI, however, did not have the same general supervision over the workspace as Sajo. While PAI had authority to supervise plaintiff, the accident was not caused by the means and methods of plaintiff's work, nor any equipment over which PAI had responsibility or control. Thus, the Appellate Division found that plaintiffs' claims against PAI under Labor Law § 200 and common-law negligence should be dismissed. The Appellate Division also found that Plaintiffs' Labor Law § 200 and common-law negligence claims should have been dismissed against CSS. As noted above, there was no evidence that CSS lent its dolly to anyone or even had knowledge of it being used by O'Kane.
 Indemnity Issues in Labor Law (PCSM)
The Appellate Division held that WTC Owner, Sajo, and Apple were entitled to summary judgment on their contractual indemnification claim against PAI as the indemnity clause, which provided for indemnification "arising out of or resulting from, the performance or non-performance" of PAI's work, was triggered since the accident arose out of PAI's HVAC contract and its subcontract to PB Vent. The Appellate Division found, however, that indemnification in favor of Sajo to be conditional since plaintiffs' common law and Labor Law §200 claims remained against it. The Appellate division further found that the motion court correctly granted WTC Owners and Sajo summary judgment on their contractual indemnification claim against O'Kane with indemnification in favor of Sajo conditional. In addition, the Appellate Division found that the trial court correctly denied Apple such relief, as they were not named in the subject indemnity clause. The argument of WTC Owner and Apple that they were entitled to contractual indemnification against PB Vent was deemed unpersuasive, as they had never made any such claims against PB Vent. While Sajo did commence a third-party action against PB Vent asserting such claims, Sajo was neither named nor described in the indemnification provision at issue, and thus not entitled to indemnification. The Appellate Division determined that Sajo was not an "agent" as that term is used in the agreement between PAI and PB Vent, as an agreement to indemnify must be strictly construed, and the intent to indemnify must be clearly implied. Issues of fact precluded summary resolution of PAI's contractual indemnification claims against PB Vent. Though PAI argued that plaintiff's actions were wrongful acts, errors, or omissions, triggering the indemnity clause in the contract between them, there had been no such finding. Lastly, the Appellate Division found that Structure Tone's contractual indemnification claims against CSS should be dismissed since there was no evidence that the accident arose "in whole or in part and in any manner from the acts, omissions, breach or default of [CSS]" so as to trigger the indemnification provision in the CSS-Structure Tone contract.
Simon v 4 World Trade Ctr., LLC
May 1, 2025
Appellate Division, First Department
Plaintiff, a laborer on a renovation project at 4 World Trade Center, was injured when large, thick glass panes were compacted in the back of a waste removal truck, which created a build-up of kinetic energy and caused some glass to burst out of the truck, striking and toppling other large glass panes that rested on a nearby A-frame cart behind which plaintiff had crouched for protection. Defendant 4 World Trade Center LLC (4 WTC) owned the building at the 4 World Trade Center address and was the ground lessee of the 44th floor in the building. Defendant Syntactx subleased a portion of the 44th floor from 4 WTC and it was Syntactx's space that was under renovation at the time of the accident.
The Supreme Court denied plaintiff’s motion for partial summary judgment on his Labor Law §240(1) claim against defendants 4 World Trade Center LLC and Syntactx LLC (together, WTC defendants) and on the Labor Law § 200 and common-law negligence claims against defendant Royal Waste Services, Inc.
Labor Law § 240(1) (EDA)
The Appellate Division affirmed the Supreme Court finding that it correctly denied plaintiff's motion because 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. It found 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 is unavailing. There was no evidence that plaintiff disobeyed an order not to crouch beside the A-frame cart. Plaintiff's conduct merely presented issues of comparative negligence, which is not a defense where a Labor Law § 240(1) violation proximately caused plaintiff's injury.
PRACTICE POINT: No matter how careless a plaintiff is, it is not considered in a § 240(1) case unless a defendant can prove sole proximate cause or recalcitrant worker.
Labor Law § 200 and Common-Law Negligence (EDA)
The Appellate Division reversed the Supreme Court finding that Royal Waste's evidence established prima facie that it was not a statutory agent of the WTC defendants or Holt for purposes of Labor Law liability. There was no evidence in the record that Holt had delegated any authority to Royal Waste to control plaintiff's disposal work, undermining any argument that Royal Waste had the authority necessary to render it a statutory agent pursuant to Labor Law § 200. The WTC defendants' evidence in opposition failed to raise a triable issue as to whether Royal Waste was a statutory agent. However, factual issues were raised as to whether Royal Waste was negligent in the performance of its work for not discerning plaintiff's location during the glass compaction process and whether such negligence was a proximate cause of plaintiff's injury.
Anguisaca-Morales v St. Paul & St. Andrew United Methodist Church
May 6, 2025
Appellate Division, First Department
Plaintiff alleges that he fell from an unsecured ladder leaning against the side of a sidewalk shed bridge. Plaintiff was climbing the ladder in order to access a taller extension ladder outside of the sidewalk shed so that he could descend to the sidewalk below.
Supreme Court granted plaintiff’s motion for summary judgment on his Labor Law §240(1) claim.
Labor Law § 240(1) (EDA)
The Appellate Division reversed the Supreme Court finding that Plaintiff's testimony, together with the video footage of his accident that he reviewed during his deposition, failed to establish plaintiff's prima facie entitlement to summary judgment since the video created a question of fact as to whether plaintiff intentionally fell and was thus the sole proximate cause of the accident. Because plaintiff's deposition included responses concerning the video's substantive contents, the video, which defendants submitted in opposition, was necessary to properly apprehend plaintiff's testimony.
PRACTICE POINT: If a picture is worth a thousand words, a video can be worth a million dollars if it can be used to disprove how Plaintiff claims the accident occurred.
Sandoval v 4 World Trade Ctr. LLC
May 6, 2025
Appellate Division, First Department
Plaintiff alleges that he was injured on July 21, 2017, while working on an exterior window washing crew on the roof of a skyscraper at 4 World Trade Center in Manhattan owned by 4 World. On the date of the accident, Plaintiff was employed by Palladium, which had been subcontracted by ABM Janitorial to provide exterior window washing services for the building.
Plaintiff was assigned the role of "third man" for a three-person crew tasked with lowering from the roof in a boom basket to clean the exterior windows. As the third man, Plaintiffs duties included preparing the powered scaffolding apparatus on the roof so his coworkers could wash the windows. This included laying out safety lines, getting water buckets, and plugging the machine into functioning electrical outlets on the roof.
Plaintiff alleges that while walking on the roof and pulling an electrical cable for the machine, he stepped onto a metal grate walkway cover which was wet, and his foot slipped, causing him to fall backward and sustain injuries. Plaintiff had walked over the metal grate platform with no incident prior to pulling the electric cable. Plaintiff did not see that the area was wet before he fell.
The Supreme Court denied plaintiff’s motion for summary judgment on his Labor Law § 241(6) claim, and granted defendants’ motion for summary judgment dismissing the common-law negligence and Labor Law § 200 and § 241(6) causes of action against them.
 Labor Law § 241(6) (TPW)
The first Department held that the Supreme Court properly dismissed the Labor Law § 241(6) claim because that statute does not apply to routine exterior window washing.
Labor Law § 200 and Common-Law Negligence (EDA)
The Appellate Division affirmed the Supreme Court finding that defendants established that they lacked actual and constructive notice of the wet metal grille on which plaintiff allegedly slipped and fell
Begnoja v Hudson Riv. Park Trust
May 8, 2025
Appellate Division, First Department
Plaintiff fell from a ladder while insulating ductwork in a ceiling. The Supreme Court granted his motion for summary judgment on his Labor Law §240(1) claim.
Labor Law § 240(1) (EDA)
The Appellate Division affirmed the Supreme Court finding that Plaintiff established prima facie entitlement to summary judgment by demonstrating that "adequate safety devices to prevent [his] ladder from slipping or to protect [him] from falling were absent". Testimony by plaintiff and a coworker eyewitness established that plaintiff was not provided with any other safety protection except the ladder, which fell along with plaintiff Thus, "the absence of protective devices proximately caused his injuries". Nor was plaintiff required to demonstrate that the ladder was defective to establish prima facie entitlement to summary judgment on his Labor Law § 240(1) cause of action. In opposition, defendants failed to raise a triable issue of fact.
PRACTICE POINT: If an adequate safety device is not provided, it is a prima facie violation and a missing necessary element of sole proximate cause.
Zyskowski v Chelsea-Warren Corp.
May 8, 2025
Appellate Division, First Department
Plaintiff, a carpenter, stepped on a nail while walking along a five-foot-long passageway at a construction site. The Supreme Court denied defendant’s motion for summary judgment seeking dismissal of his Labor Law §200, 241(6), and common-law negligence claims. Plaintiff’s §241(6) claims were predicated upon a violation of 12 NYCRR) §§ 23-1.7(e)(1) and (2).
Labor Law § 241(6) (TPW)
The First Department held that the Supreme Court should have dismissed the Labor Law § 241(6) claim insofar as it was predicated on the first sentence of 12 NYCRR § 23-1.7(e)(1), which provides, "All passageways shall be kept free from accumulations of dirt and debris and from any other obstruction or conditions which could cause tripping" as Plaintiff did not trip on the nail that allegedly injured him. However, the court properly sustained the Labor Law § 241(6) claim insofar as it is based on the second sentence of 12 NYCRR 23-1.7(e)(1), which provides, "Sharp projections which could cut or puncture any person shall be removed or covered." This provision could be applicable, as the nail that injured plaintiff was a sharp projection within the meaning of the regulation. Finally, defendant's reliance on the "integral to the work" doctrine was unpersuasive, as appropriate preventive measures would not have made it impossible for plaintiff to do his work.
Labor Law § 200 and Common-Law Negligence (EDA)
The Appellate Division reversed the Supreme Court finding that the defendant established prima facie entitlement to summary judgment on those claims and plaintiff failed to raise an issue of fact in opposition.
Brito v City of New York
May 13, 2025
Appellate Division, First Department
Plaintiff was performing asbestos removal work on the roof of a residential building in NYCHA's Mariners Harbor complex on Staten Island when the wind knocked over three unsecured panels of galvanized steel fencing onto plaintiff, causing his injuries. Each panel measured 8 feet in height and 8 to 10 feet in length. Together the panels had a combined weight of approximately 150 to 225 pounds.
The Supreme Court granted defendants’ motion for summary judgment dismissing the complaint, denied plaintiff’s motion for summary judgment on his §240(1) claim, and dismissed counterclaims and cross-claims as moot.
Labor Law § 240(1) (EDA)
The Appellate Division Unanimously reversed the Supreme Court finding that Plaintiff established that at the time the fence panels fell onto him, they were not tied down to a bulkhead or parapet wall or secured by heavy sandbags and/or metal plates. Because of the reasonable possibility that they might topple onto the workspace, the panels required securing for the purposes of the undertaking. Further, plaintiff's evidence demonstrated that the gravitational force generated by the wind-toppled steel fence panels was significant and a proximate cause of his injuries. NYCHA and UCRI failed to raise a triable issue of fact.
PRACTICE POINT: Here the fence panels merely tipped over onto the plaintiff. They did not fall, but they also were not secured for the purposes of the work, a prima facie violation.
Broughton v 553 Marcy Ave. Owners LLC
May 15, 2025
Appellate Division, First Department
Plaintiff, a laborer for a wrecking company, was injured when he was working on a building demolition project. According to the deposition testimony of plaintiff and one of his coworkers, plaintiff was helping to carry building materials across a roof when he fell approximately 20 feet through a hole in the roof to the floor below. Plaintiff's coworker testified that the hole was covered by an unsecured metal sheet that also fell through the hole along with plaintiff.
The Supreme Court denied plaintiff’s motion for summary judgment under Labor Law §240(1), 241(6).
Labor Law § 240(1) (EDA)
The Appellate Division unanimously affirmed, finding that Plaintiff met his initial burden by showing he was carrying materials on a construction project when he fell through a hole. In opposition, defendants have "raised a triable issue of fact as to whether the accident occurred in the manner described by plaintiff" (Aspromonte v Judlau Contr., Inc., 162 AD3d 484, 485 [1st Dept 2018]). Defendants submitted an affidavit and a report of two experts who "opined that plaintiff's injuries are inconsistent with the alleged fall". Two experts opined that the injuries did not match the description of the accident and that plaintiff's account of the accident "challenges credibility," as "his examination is remarkable for nonphysiologic findings, inconsistencies, symptom magnification, and embellishment." The court however rejected, “defendants' suggestion, based on as yet unproven allegations of fraud in two federal civil RICO actions, that plaintiff may have conspired with his counsel's firm and his medical providers to fabricate his accident and file false insurance and personal injury claims”.
PRACTICE POINT: Experts can create an issue of fact on causation, but any credibility determination will have to be made by a jury.
Labor Law § 241(6) (TPW)
In light of the above, the First Department found that the motion court also properly denied summary judgment on plaintiff's Labor Law § 241(6) claim.
Rivas v Panama Leasing, LLC
May 15, 2025
Appellate Division, First Department
Plaintiff fell from an elevated working platform which did not allow him to reach safely overhead and operate drills to remove old, inoperable globe light fixtures. Plaintiff’s work involved detaching the electrical wires from the old fixture, then re-wiring a new replacement light fixture into place, followed by drilling holes into the canopy's concrete surface to permit screws to affix the new, smaller-size fixture into place and placing a lightbulb cover onto the replacement fixture all while the power was off.
The Supreme Court denied plaintiff’s motion for partial summary judgment on his Labor Law 240(1) claim and granted defendants’ motion for summary judgment dismissing plaintiff’s Labor Law §240(1) and §241(6) claims.
Labor Law § 240(1) (EDA)
The Appellate Division reversed the Supreme Court and granted Plaintiff summary judgment and denied Panama summary judgment on the claim. Plaintiff's evidence in support of his motion established prima facie that his work, when viewed in totality (see Fitzpatrick v State of New York, 25 AD3d 755, 756-757 [2d Dept 2006]), involved a repair of the canopy's pendent lights that entailed work beyond mere routine maintenance, entitling him to the protections under Labor Law § 240(1). Panama's evidence in opposition failed to raise a triable issue as to plaintiff's Labor Law § 240(1) claim.
PRACTICE POINT: Remember that repairs are covered activities under § 240(1), maintenance is not. Maintenance is proactive, focusing on preventing breakdowns by keeping systems in good working order through regular upkeep. Repair, on the other hand, is reactive, addressing issues after a system has malfunctioned or failed.
Labor Law § 241(6) (TPW)
The First Department held that plaintiff's Labor Law § 241(6) claim was properly dismissed as there was no evidence offered to show his lamp replacement work was undertaken in the context of construction, excavation, or demolition. Moreover, Industrial Code (12 NYCRR) § 23-1.7(d) (slipping hazards) on which plaintiff relied as a predicate for his Labor Law § 241(6) claim, was inapplicable as plaintiff did not slip on an "elevated working surface," but rather, he slipped from the lift's railing, which is not a "working surface".
Solarte v Brearley Sch.
May 15, 2025
Appellate Division, First Department
Plaintiff was injured descending a staircase when a step broke underneath him and caused him to fall.
The Supreme Court denied all defendants’ motions for summary judgment dismissing plaintiff’s common-law negligence, Labor Law §240,241(6), and §200 claims. The Court also denied summary judgment on The Brearley School and E.W. Howell Co., LLC’s claim for contractual indemnification against PAL Environmental Services, Inc (hereinafter PAL) and PAL’s motion to dismiss the claim.
Labor Law § 240(1) (EDA)
The Appellate Division affirmed the Supreme Court finding that Defendants failed to demonstrate that the injuries plaintiff suffered while descending the staircase were not foreseeable (see Espinosa v Azure Holdings II, LP, 58 AD3d 287, 291 [1st Dept 2008]; Jones v 414 Equities LLC, [*2]57 AD3d 65, 80 [1st Dept 2008]). The fact that the stairwell was a permanent appurtenance does not foreclose plaintiff's claim. Since the stairwell was the only "means of access to his work area, it constituted a safety device within the meaning of the statute" (Conlon v Carnegie Hall Socy., Inc., 159 AD3d 655, 655 [1st Dept 2018]).
Labor Law § 241(6) (TPW)
The First Department held that the Supreme Court also properly denied summary judgment to defendants on the Labor Law § 241(6) claim, to the extent based on Industrial Code (12 NYCRR) § 23-1.7(f). Defendants fail to show that this provision, which "imposes a duty upon a defendant to provide a safe staircase, free of defects," did not apply. Instead, the evidence showed that the step was defective since it broke under plaintiff's foot. The Appellate Division noted, however, that as to any required "continuing inspections" during "hand demolition" (12 NYCRR 23-3.3[c]), plaintiff's testimony shows that inspections of the stairway would not have prevented the accident.
Labor Law § 200 and Common-Law Negligence (EDA)
The Appellate Division reversed the Supreme Court finding that Defendants, owner and construction manager, are entitled to summary judgment dismissing plaintiff's negligence and Labor Law § 200 claims. The testimony in the record, including plaintiff's statements that he observed nothing wrong with the stairs when he ascended and descended several times on the day of his accident, demonstrates that there was no visible or apparent damage to the step that broke as he stepped on it. Thus, any defect with the step was latent so that defendants could not have discovered it upon a reasonable inspection
Indemnity Issues in Labor Law (PCSM)
The Appellate Division held that Defendants were entitled to summary judgment on their contractual indemnification claim finding that the relevant provision in the subcontract evinced an unmistakable intent to indemnify and the plaintiff's injuries arose out of the contract work since he was carrying tools between work areas down the stairs when he suffered an injury.
Vines v Judlau Contr., Inc.
May 15, 2025
Appellate Division, First Department
Plaintiff was struck by an unsecured brick that was dropped by a coworker unloading a hoist on a scaffold above him, which was supported by his foreman's affidavit. Although there was netting around the scaffold, it was inadequate to protect him from the falling brick.
The Supreme Court granted plaintiff’s motion for partial summary judgment on his Labor Law §240(1) claim, and denied defendants’ cross-motions seeking dismissal of the complaint.
Labor Law § 240(1) (EDA)
The Appellate Division affirmed the Supreme Court. Plaintiff established a statutory violation that was a proximate cause of his injuries through his testimony that he was struck by the brick that was dropped by a coworker unloading a hoist on a scaffold above him. The netting around the scaffold was inadequate to protect him from the brick. Defendants failed to establish that plaintiff was recalcitrant or the sole proximate cause of the accident. Although plaintiff's foreman stated in his affidavit that plaintiff ignored his instruction to move out of the hoist area when it was raised to the scaffold, "an instruction to avoid an unsafe practice is not a sufficient substitute for providing a worker with a safety device to allow him to complete his work safely. Moreover, plaintiff's actions amounted to at most comparative negligence, which is not a defense to a section 240(1).claim
PRACTICE POINT: Warning to avoid an unsafe practice is not a sufficient substitute for providing a worker with a safety device.
McCormick v DiPersia
May 20, 2025
Appellate Division, First Department
Plaintiff was injured when he jumped into an excavated trench to perform his work. Plaintiff testified that the trench was five-to-seven feet deep and that he asked for a ladder to access the bottom of the trench but was told to jump down. Navesink's part owner testified that plaintiff should have been told to use a ladder and indicated that the trench would have been about 36 inches deep. Defendant SLS's incident report described the trench as 3 ½ feet deep and stated as a contributing factor that the "contractor should have had a ladder into excavation."
The motion court denied plaintiff’s motion for partial judgment on his Labor Law §240(1) and 241(6) claims against defendants.
Labor Law § 240(1) (EDA)
The Appellate Division reversed the Supreme Court finding that Plaintiff's descent into the trench constituted an elevation-related hazard within the scope of Labor Law § 240(1) requiring a ladder or ramp for proper protection and that defendants failed to raise a triable issue of fact. The varying depth estimates were irrelevant and the sole proximate cause defense was not available given that plaintiff demonstrated that he was not provided with a ladder.
PRACTICE POINT: This case is another example of the sole proximate cause defense. A defendant has no liability under § 240(1) when plaintiff: (1) had adequate safety devices available, (2) knew both that the safety devices were available and 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. Here, plaintiff was entitled to summary judgment as defendants failed to provide a ladder at all.
Wilson v AC 320 Hotel Partners LLC
May 20, 2025
Appellate Division, First Department
Plaintiff fell from an elevated scaffold through a partially hidden gap where there were no anchor points to tie off a harness or safety railings on the building side of the scaffold.
The Supreme Court granted plaintiff’s motion for summary judgment on his Labor Law §240(1) claim, and granted third-party defendant Rockledge Scaffold Corp.'s motion for summary judgment dismissing defendants AC 320 Hotel Partners LLC, LRR, and Flintlock's third-party claims against it for common-law indemnification, contribution, and contractual indemnification.
Labor Law § 240(1) (EDA)
The Appellate Division affirmed the Supreme Court. It found that since there were no anchor points to tie off a harness or safety railings on the building side of the scaffold, Plaintiff demonstrated a prima facie violation of this provision. It also found that even if the integral-to-the-work defense applied in a Labor Law § 240(1) context and that the gap itself was integral to the work, there is no evidence of any work-related reason for the absence of anchor hooks to tie off a harness or for the presence of the pink Styrofoam partially obscuring the gap. Nor was it clear that there was a work-related reason for the absence of a guardrail. Plaintiff’s failure to keep a lookout was at most comparative negligence and the absence of the safety device prevents a sole proximate cause defense.
PRACTICE POINT: A harness is only one part of a two-part safety device. A defendant must also provide a tie-off location.
Indemnity Issues in Labor Law (PCSM)
The Appellate Division held that Defendants' third-party common-law indemnification, contribution, and contractual indemnification claims against third-party defendant Rockledge were properly dismissed as there was no indication that the accident was caused by or arose out of Rockledge's work or negligence. There was nothing in the record to suggest that Rockledge placed the Styrofoam over the gap or was responsible for installing tie-off anchors. In fact, Rockledge had not been present at the site since the Scaffold was installed, was not contractually responsible for installing tie-off anchors and was not asked by Flintlock to install tie-off anchors. Thus, the lower court’s decision as to summary judgment on the third-party claims was affirmed.
Sarante v Courtlandt Dev., LLC
May 22, 2025
Appellate Division, First Department
Defendant Courtlandt, the premises owner, contracted with defendant AB Capstone to be its general contractor for the construction project. Defendant AB Capstone subcontracted with third-party defendant Gold Lion to reinforce the building's structure with steel beams. Plaintiff was injured while hoisting a heavy steel beam from the basement to the first floor using a chain block pulley system owned by his employer, Gold Lion. The elevated metal poles of the hoist system collapsed, injuring plaintiff.
The Supreme Court granted plaintiff’s motion for partial summary judgment on his Labor Law §240(1) claim and denied defendants’ cross-motion for summary judgement. Plaintiff’s Labor Law §241(6) claim was predicated on a violation of Industrial Code § 23-6.2. The Court also partially granted Courtlandt Development, LLC and AB Capstone Builders Corp.'s cross-motion for summary judgment against Golf Lion Steel, LLC for failure to procure insurance, but denied claims of contractual indemnification.
Labor Law § 240(1) (EDA)
The Appellate Division affirmed the Supreme Court finding that it properly granted plaintiff summary judgment, as the chain block pulley system was a safety device that failed to protect him from the hazard of a falling object, the poles of the device. Courtlandt, AB Capstone, and Gold Lion failed to raise triable issues of fact regarding whether plaintiff's excessive hoisting was the sole proximate cause of the accident based on the testimony that plaintiff pulled the chain at the direction of a Gold Lion foreman. Any such fault on plaintiff's part would only amount to contributory negligence.
PRACTICE POINT: Unlike § 241(6), § 200 and common law negligence, Plaintiff’s comparative negligence is not considered in a § 240(1) case.
Indemnity Issues in Labor Law (PCSM)
The Appellate Division held that the lower court properly denied defendants summary judgment on their contractual indemnification claims against Gold Lion and properly denied Gold Lion's motion for summary judgment dismissing those claims. The Appellate Division found that the Defendants failed to demonstrate that Gold Lion's insurance carrier insures them. In its subcontract, Gold Lion agreed to defend and indemnify defendants for claims or losses arising directly or indirectly from Gold Lion's negligence, recklessness, and willful misconduct in the performance of its work. According to the subcontract and the coverage letter from Gold Lion's insurance carrier, defendants were not additional insureds. In the letter, the carrier agreed to defend defendants based on the "potential for coverage" and further reserved its right to deny coverage for indemnification should there be a determination that Gold Lion is not liable for the loss. The Appellate Division reasoned that an insurer that has paid a claim on behalf of any insured who is only vicariously liable for the loss is entitled to recover the amount paid by way of indemnity from the wrongdoer. Further, as the right to indemnity arises by operation of law when the insurer makes payment to the insured, defendants' right to indemnification had not yet vested.
The Appellate Division found that the lower court properly denied Gold Lion's motion to dismiss defendants' third-party claims for contribution and common-law indemnification as Gold Lion failed to submit competent medical evidence that plaintiff did not suffer a "grave injury" under Workers Compensation Law § 11. Lastly, the Appellate Division affirmed the lower court’s denial of Gold Lion's motion for summary judgment dismissing defendants' third-party claims for failure to procure excess insurance to satisfy the coverage amount required by the subcontract since Gold Lion failed to refute the affidavit of its owner that the company was not covered by the necessary excess insurance on the date of plaintiff's accident.
Skydaniuk v ESRT Empire State Bldg., LLC
May 22, 2025
Appellate Division, First Department
Plaintiff was injured on a renovation project when he tripped and fell down a stationary escalator, which served as the sole means of access between two levels of the construction site. One of DCG's carpenters testified at his deposition that, to protect the escalator, he covered the steps with plastic sheeting and then duct-taped custom-cut Masonite boards to the sheeting. According to plaintiff's deposition testimony, he tripped and fell on the escalator when duct tape got stuck to his boots and he slid on the Masonite.
The Supreme Court denied Plaintiff’s motion for summary judgment on liability on his Labor Law §240(1) claim, and denied the motion of defendant Denko Mechanical, Inc. for summary judgment dismissing the claims of defendants ESRT Empire State Building and DGC Capital Contracting Corp. for contractual indemnification and breach of contract for failure to procure insurance as against it.
Labor Law § 240(1) (EDA)
The Appellate Division reversed the Supreme Court finding that the escalator constituted an enumerated safety device, as it was an elevated surface on which plaintiff was required to work and served as the only way to access his work area (see Rivas v Nestle Realty Holding Corp., 188 AD3d 430, 431[1st Dept 2020] and that defendants failed to provide plaintiff with a proper elevation-related safety device. Defendants failed to raise an issue of fact.
Indemnity Issues in Labor Law (PCSM)
The Appellate Division affirmed the lower court’s denial of Denko's motion for summary judgment dismissing ESRT and DGC's third-party claims for contractual indemnification and breach of contract for failure to procure insurance. The Appellate Division reasoned that the subcontract between Denko and DGC required Denko "[t]o the fullest extent permitted by law . . . to indemnify" defendants for all claims "arising out of or in connection with or as a result of or as a consequence of the performance of the work to be undertaken by" Denko. Since Plaintiff was performing work on its behalf at the time he was injured, the Appellate Division found that Denko failed to establish that the indemnification provision was not triggered. The Appellate Division determined that Denko also failed to establish that it met its insurance procurement obligations of obtaining coverage for ESRT and DGC, as the insurance policy it offered to address that issue was improperly submitted in reply. The Appellate Division noted, however, that Denko was not required to indemnify DGC for DGC's own negligence, which had yet to be determined.
Bowden v Summit Glory Prop. LLC
May 27, 2025
Appellate Division, First Department
Plaintiff' a union carpenter, employed by third-party defendant core contracts to do rough carpentry including plastering and sheetrock work, was injured when he tripped on a portion of unsecured Masonite that covered finished flooring in a hallway of the leased commercial space in Summit's building. Booking, the lessee, hired Marlboro as the general contractor on the buildout of its leased space, and Marlboro had the obligation to install, inspect, and maintain the Masonite floor cover.
The Supreme Court granted plaintiff’s motion for partial summary judgment on his Labor Law §241(6) claim. The court also denied summary judgment on Booking Holdings Inc.’s indemnification claim against Marlboro Group International LLC, and Summit Glory Property LLC’s indemnification claim against Marlboro & Booking. The Court denied all defendant’s motions to dismiss Plaintiff’s complaint and cross-claims.
Labor Law § 241(6) (TPW)
The First Department held that plaintiffs' evidence, including photographs, deposition testimony, and a video indicating the Masonite was missing tape to hold it securely in place, along with the lack of proof to show when the Masonite was last inspected, established their prima facie entitlement to summary judgment on the Labor Law § 241(6) claim predicated on Industrial Code (12 NYCRR) § 23-1.7(e)(1). In opposition, defendants failed to raise a triable issue of fact. Defendants' argument that the Masonite was integral to plaintiff's work, and thus a defense to his Labor Law § 241(6) claim, was unavailing, as there was no evidence to show the hazardous Masonite condition was inherent to plaintiff's task at hand.
Indemnity Issues in Labor Law (PCSM)
The Appellate Division did find, however, that Summit was entitled to summary judgment on its claim against Marlboro for common-law indemnification, as it established that it will be held vicariously liable without proof of any negligence or actual supervision on its own part. The Appellate Division also found that Summit established prima facie entitlement to summary judgment on its contractual indemnification claim against Booking since the indemnity language in the lease between Summit and Booking obligated Booking to indemnify and hold Summit harmless for liability arising out of the work of its general contractor, Marlboro, where the injury was attributable to the general contractor's negligence. However, the Appellate Division held that Summit's claim against Booking for common-law negligence was properly dismissed, as there was no evidence to indicate that negligence on Booking's part proximately caused plaintiff's injuries.
The Appellate Division held that Summit's contractual indemnification claim against Marlboro should be dismissed as there was no contract between Summit and Marlboro and the language in the general contractor agreement between Booking and Marlboro did not evince an unmistakable intent that Marlboro indemnify Summit. The Appellate Division reasoned that the reference to "Owner" in the Booking/Marlboro indemnification agreement, when reasonably interpreted in the context of such agreement, referred to Booking, since the general contractor agreement referenced Booking (the lessee) as "Owner." The Appellate Division further reasoned that the facts here did not unmistakably demonstrate that Summit was an intended third-party beneficiary of Marlboro's contractual obligations with Booking, even though the "rules" of Booking's lease were appended to the Booking/Marlboro general contractor agreement.
The Appellate Division did find, however, that Summit was entitled to summary judgment on its claim against Marlboro for common-law indemnification, as it established that it will be held vicariously liable without proof of any negligence or actual supervision on its own part. The Appellate Division also found that Summit established prima facie entitlement to summary judgment on its contractual indemnification claim against Booking since the indemnity language in the lease between Summit and Booking obligated Booking to indemnify and hold Summit harmless for liability arising out of the work of its general contractor, Marlboro, where the injury was attributable to the general contractor's negligence. However, the Appellate Division held that Summit's claim against Booking for common-law negligence was properly dismissed, as there was no evidence to indicate that negligence on Booking's part proximately caused plaintiff's injuries.
The Appellate Division found that the indemnity language running from Marlboro to Booking in the Booking/Marlboro general contractor agreement demonstrated that the parties clearly intended that Marlboro would indemnify Booking in such circumstances, and, as such, the indemnification provision should be enforced in Booking's favor.
Lastly, the Appellate Division found that the lower court properly dismissed the third-party action in a prior order and Marlboro did not take an appeal. Since the time to appeal had long since expired, the Appellate Division found Cord to no longer be a party to the action and held that Marlboro could not continue to litigate the third-party claims as against it.
Nyanteh v 590 Madison Ave., LLC
May 29, 2025
Appellate Division, First Department
Plaintiff Chris Nyanteh's accident occurred as he was moving, by himself, an A-frame cart loaded with several heavy metal sheets, when one of the cart's wheels caught on some debris, causing the cart and sheets to tip over and onto him.
The Supreme Court denied third-party defendant/second third-party defendant Eclipse Contracting Corp.'s (Eclipse) motion for summary judgment dismissing, in effect, the third-party complaint and second third-party complaint, and granted that branch of plaintiffs' cross-motion for partial summary judgment on the issue of liability on their Labor Law § 240 (1) claim.
Labor Law § 240(1) (EDA)
The Appellate Division affirmed the Supreme Court finding that plaintiff proved his prima facie entitlement to summary judgment on § 240(1) claim showing the load tipped onto him. That plaintiff may have moved the cart by himself when he was not supposed to amounts, at most, to comparative or contributory negligence. Plaintiff could not have been the sole proximate cause of his accident, since defendants' Labor Law § 240 (1) violation was at least a proximate cause.
Indemnity Issues in Labor Law (PCSM)
The Appellate Division held that Defendant/second third-party plaintiff Shawmut Woodworking & Supply, Inc.'s (“Shawmut”) job order with Eclipse expressly incorporated by reference a prior "universal subcontract" between them, which contained an indemnification clause obligating Eclipse to indemnify "Owner" and Shawmut for claims "arising out of or resulting from any work of and caused in whole or in part by any act or omission of" Eclipse. Thus, this indemnification agreement had both a performance-of-the-work trigger as well as a negligence trigger. Eclipse was not entitled to summary judgment dismissing the third-party contractual indemnification claims because issues of fact remained as to its negligence, particularly as to whether it failed to properly store its A-frame cart and metal sheets by leaving them unattended in another trade's path. However, since the contract documents contain references to both Tourneau and 590 Madison as the "Owner", Eclipse's motion seeking to dismiss 590 Madison's contractual indemnification claim against it was properly denied.
The Appellate Division found that the issues of fact that remained as to Eclipse's negligence also preclude summary judgment dismissing the third-party common-law indemnification and contribution claims against it.
Finally, the Appellate Division held that Eclipse did not establish its prima facie entitlement to summary judgment dismissing the third-party breach of contract claims for failure to procure insurance. Though Eclipse identified the contract provision requiring the procurement of insurance, which required Eclipse to procure commercial general liability insurance with $1 million/$2 million policy limits, $5 million of excess liability coverage, and additional insured coverage for 590 Madison, Tourneau, and Shawmut, Eclipse only produced the endorsement covering additional insureds, and did not establish that it procured the required commercial general liability or excess liability insurance. Thus, the Appellate Division held that the breach of contract claims were properly denied.
Braganca-Ferreira v SREP 10th Ave. Venture LLC
May 29, 2025
Appellate Division, First Department
Plaintiff, an employee of Fitzcon, was injured while walking over a three-foot high pile of wooden beams to transport building material into a construction site. He was carrying the back end of a beam over his shoulder while a coworker supported the front end, and as plaintiff was walking across the pile, the beams beneath his feet suddenly moved, causing him to lose his balance and fall on top of the pile. Plaintiff testified that he received his instructions from Fitzcon, and that it was regular procedure for workers to walk over the pile of loose beams in order to bring building materials into the site.
The Supreme Court granted plaintiff’s motion for summary judgment on his Labor Law 240(1) claim, and denied cross-motion seeking dismissal of his Labor Law §240 claim. The Supreme Court also denied SREP 10th Ave. Venture LLC’s cross-motion for summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims, and granted defendants' motion for summary judgment on their third-party cause of action for contractual indemnification as against third-party defendant Fitzcon Construction/Ren Corp. to the extent of granting conditional indemnification.
Labor Law § 240(1) (EDA)
The Appellate Division affirmed the Supreme Court finding that it was regular procedure at the site for workers to walk across a pile of unsecured beams to perform their work, and the unsecured beams moved underneath plaintiff's feet, causing him to fall. In opposition, defendants failed to raise a triable issue of fact. Defendants submitted no evidence supporting their contention that plaintiff was the sole proximate cause of his injury, as the record establishes that plaintiff acted in accordance with regular procedure and the directions of his foreman. In addition, the evidence established that the pile of beams from which plaintiff fell was at least three-feet high, which is not a de minimis height.
PRACTICE POINT: The courts have interpreted the law to mean that a height differential must be significant to trigger 240(1) liability. A height differential considered "de minimis" is not significant enough to warrant the protections of the law. Some cases have considered an 18-inch height differential to be not de minimis, while others have found smaller differentials to be "de minimis". Like Justice Potter describing his threshold test for obscenity in Jacobellis v. Ohio, a court knows it when it sees it.
Labor Law § 200 and Common-Law Negligence (EDA)
The Appellate Division affirmed the Supreme Court finding issues of fact as to whether piles of unsecured building material constituted a recurring dangerous condition that Foundations failed to remedy, thus charging Foundations Group with constructive notice of that condition. The record also established that Foundation Group's construction superintendent routinely inspected the security of delivered material piles if he was present for the delivery, and had previously directed Fitzcon's foreman to fix piles that blocked workers' paths or otherwise endangered anyone.
Indemnity Issues in Labor Law (PCSM)
The Appellate Division held that the lower court properly granted conditional contractual indemnification in favor of Foundation Group as against Fitzcon as the subcontract between Foundation Group and Fitzcon provided that Fitzcon would defend and indemnify Foundations Group for loss from personal injuries and property damage arising from the performance of the work only to the extent that the personal injury or property damage was caused by Fitzcon's "willful misconduct, negligent acts, or omissions." A second provision within the subcontract also provided that Fitzcon would defend and indemnify Foundations Group for all other types of losses arising from the performance of Fitzcon's work "in addition to the indemnification required from Fitzcon" under the first provision. Thus, the Appellate Division found that indemnification in favor of Foundations Group was not limited to loss caused by Fitzcon's culpable conduct. As the Plaintiff's injury arose from the performance of Fitzcon's work and Fitzcon was the entity that directed workers to carry materials into the site, and because plaintiff prevailed on his claim under Labor Law § 240(1) for an injury arising from Fitzcon's work, the Appellate Division upheld the lower court’s granting of summary judgment conditioned on the disposition of the underlying action.
Byrnes v RP1185 LLC
May 29, 2025
Appellate Division, First Department
Plaintiff Thomas Byrnes, a stone derrickman employed by Jemco, was injured when he was forced to jump approximately 15 feet to the ground to avoid being struck by a precast concrete panel as it fell from above him. At the time of the incident, plaintiff was part of a Jemco crew that was installing the panels onto the superstructure of a building owned by RP1185. Global, which designed and manufactured the panels, was a subcontractor of Lendlease, the project's construction manager; Global, in turn, hired Jemco as a subcontractor to install the panels.
The Supreme Court granted Plaintiff’s motion for summary judgment on the issue of liability to the extent it sought judgment on the Labor Law § 200 and common-law negligence claims as against defendant Global Precast Inc., and denied the motion to the extent it sought judgment on the Labor Law § 240(1) claims as against defendants Global, RP1185 LLC, and Lendlease (US) Construction LMB Inc. The Supreme Court also denied Global's motion for summary judgment dismissing plaintiffs' Labor Law §§ 200 and 240(1) claims and for judgment in its favor on its third-party causes of action as against second third-party defendant Jemco Erectors, Inc. for contractual indemnification and breach of contract for failure to procure insurance.
Labor Law § 240(1) (EDA)
The Appellate Division reversed the Supreme Court finding that plaintiffs' proof on their motion demonstrated that the panel, which was positioned above plaintiff, was inadequately secured. In opposition, defendants failed to raise a triable issue of fact.
PRACTICE POINT: Dualing experts yield questions of fact.
Labor Law § 200 and Common-Law Negligence (EDA)
The Appellate Division affirmed the Supreme Court’s denial of Global's motion for summary judgment, it reversed the Supreme court finding that it should have denied Plaintiff’s motion as well. The record presents issues of fact about what caused the panel to fall, rendering summary judgment against Global inappropriate. Jemco’s expert cited defective design and manufacture. Global’s expert opined that the specifications were adequate, but that improper installation was the cause.
Indemnity Issues in Labor Law (PCSM)
The Appellate Division found that the lower court properly denied the portion of Global's motion seeking summary judgment on its indemnification claim against Jemco. The Appellate Division reasoned that although one of the indemnification clauses in the subcontract contained a savings clause, a grant of conditional indemnity was inappropriate, because the record contained evidence from which a jury could conclude that Global was the sole proximate cause of the accident.
The Appellate Division also found that the lower court correctly denied the portion of Global's motion against Jemco as its breach of contract for failure to procure insurance claim. The Appellate Division pointed out that the Global-Jemco subcontract required Jemco to provide insurance coverage "in connection with [the] subcontract," and Jemco fulfilled this requirement. The Appellate Division rejected Global's argument that Jemco was obliged to obtain coverage that included coverage for the work of material manufacturers and suppliers, as the contract provision Jemco relied on did not state as such. Further, the Appellate Division reasoned that since the subcontract was only for installation of the panels and not their design or manufacture, Jemco was not required to purchase insurance covering the panels' design and manufacture.
Duran v ERY Retail Podium LLC
May 29, 2025
Appellate Division, First Department
Plaintiff fell from an unsecured 12-foot A-frame ladder that suddenly wobbled as he was descending it, causing him to miss a step and fall.
The Supreme Court granted plaintiff’s motion for partial summary judgment on his Labor Law §240(1) claim and denied defendants' motion for summary judgment dismissing that claim.
Labor Law § 240(1) (EDA)
The Appellate Division affirmed the Supreme Court finding that the facts established prima facie entitlement to summary judgment, and defendants failed to raise an issue of fact. Defendants failed to show that plaintiff was a recalcitrant worker as his failure to maintain points of contact with the ladder is only comparative negligence.
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.
Cagua v Bushwick Holdings, LLC
May 7, 2025
Appellate Division, Second Department
The plaintiff, an employee of M & C Impact Corp. (hereinafter M & C Impact), allegedly was injured while installing a handrail on a permanent staircase located between the first and second floors of a building in Brooklyn owned by the defendant Bushwick Holdings, LLC (hereinafter Bushwick), through its real estate holding company, the defendant Rabsky Harrison, LLC (hereinafter Rabsky). The defendant Galaxy Developers, LLC (hereinafter Galaxy), served as construction manager for the project.
The Supreme court denied defendants’ cross-motion for summary judgment dismissing common-law negligence and Labor Law §200 and 24(1) and §241(6) based upon a violation of 12 NYCRR 23-2.7(e).
Labor Law § 240(1) (EDA)
The Appellate Division affirmed the Supreme Court finding that the fact that the staircase on which plaintiff fell was constructed as a permanent structure does not remove it from the reach of Labor Law § 240(1).
Labor Law § 241(6) (TPW)
Here, the plaintiff alleged, inter alia, that his injuries were proximately caused by the defendants' violation of 12 NYCRR 23-2.7(e), which requires, in pertinent part, that "[t]he stairwells of temporary wooden stairways and of permanent stairways where enclosures or guard rails have not been erected shall be provided with a safety railing constructed and installed . . . on every open side." The defendants failed to demonstrate, prima facie, that this regulation was inapplicable or not violated, or that the alleged violation was not a proximate cause of the plaintiff's injuries. Accordingly, the Supreme Court properly denied that branch of the defendants' cross-motion which was for summary judgment dismissing so much of the Labor Law § 241(6) cause of action as was predicated upon a violation of 12 NYCRR 23-2.7(e) regardless of the sufficiency of the plaintiff's opposition papers.
Labor Law § 200 and Common-Law Negligence (EDA)
The Appellate Division reversed the Supreme Court finding that the incident related to the means and manner of the work rather than a premises condition. The defendants established, prima facie, that they did not have supervisory authority over the means and methods of the plaintiff's work. In opposition, the plaintiff failed to raise a triable issue of fact.
Canales v Rye Neck Union Free Sch. Dist.
May 14, 2025
Appellate Division, Second Department
On July 10, 2019, the plaintiff, an employee of the third-party defendant Sea Breeze General Construction, Inc. (hereinafter Sea Breeze), allegedly was injured while working at a construction site located at the defendant Daniel Warren Elementary School in Mamaroneck. On the day of the accident, the plaintiff was working as a laborer for Sea Breeze, which was tasked with the demolition and replacement of the roof of the school. According to the plaintiff, he was working on the roof when his Sea Breeze supervisor instructed him to retrieve tools and materials from a Sea Breeze truck, which was parked in the school's parking lot. The plaintiff testified at his deposition that as he was exiting the truck, he slipped on the top step of the truck cab and fell approximately five feet to the ground.
The Supreme Court granted defendants’ motions for summary judgment dismissing plaintiff’s Labor Law §240(1) and 241(6) causes of action, and denied plaintiff’s cross motion for summary judgment.
Labor Law § 240(1) (EDA)
The Appellate Division affirmed the Supreme Court finding that defendants established, that Labor Law § 240(1) was inapplicable to the facts of this case, the plaintiff failed to raise a triable issue of fact in opposition, and the plaintiff failed to establish his prima facie entitlement to judgment as a matter of law on the issue of liability on that cause of action. The approximately five-foot descent from the truck's top step to the ground was not an elevation-related risk for purposes of Labor Law § 240(1) (see Toefer v Long Is. R.R., 4 NY3d 399, 408.
PRACTICE POINT: “Not an elevation risk” is not the same as “de minimus height”. The protections of Labor Law § 240(1) do not encompass any and all perils that may be connected in some tangential way with the effects of gravity'" (Giraldo v Highmark Ind., LLC, 226 AD3d at 876 [internal quotation marks omitted], quoting Nicometi v Vineyards of Fredonia, LLC, 25 NY3d at 97).
Labor Law § 241(6) (TPW)
The Appellate Division held that the plaintiff's deposition testimony that he slipped on the truck's step, established, prima facie, that 12 NYCRR 23-1.7(d) was inapplicable to the facts of this case, as truck steps are not a "floor, passageway, walkway, scaffold, platform or other elevated working surface" within the meaning of that section. Additionally, the defendants established, prima facie, that 12 NYCRR 23-1.7(e)(2), which protects workers from tripping hazards, is inapplicable to the facts of this case, as the plaintiff testified that he "slipped". In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted those branches of the defendants' motion which were for summary judgment dismissing so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated on violations of 12 NYCRR 23-1.7(d) and (e)(2) insofar as asserted against them and properly denied those branches of the plaintiff's cross-motion which were for summary judgment on the issue of liability on so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated on violations of 12 NYCRR 23-1.7(d) and (e)(2) insofar as asserted against the defendants.
Pisculli v Tew
May 14, 2025
Appellate Division, Second Department
Plaintiff, while in the course of his employment with A-H Construction, Inc. (hereinafter A-H), as a machine operator in January 2015, sustained injuries at the defendants' facility. The defendants had contracted with A-H to rent a concrete crusher and to utilize the plaintiff's services to operate it. According to the plaintiff, the accident occurred when the bucket of an excavator operated by David Hartmann struck him in the head. The plaintiff asserted, among other things, that the defendants were vicariously liable for Hartmann's alleged negligence and that they were themselves negligent for failing to provide him with a hard hat to perform his work.
The Supreme Court granted defendants’ motion for summary judgment dismissing Labor Law §200 and common-law claims of negligence based upon failure to provide a hard hat but denied defendants’ motions seeking summary judgment premised upon vicarious liability for alleged negligent acts of a nonparty.
Labor Law § 200 and Common-Law Negligence (EDA)
The Appellate Division affirmed the Supreme Court finding that defendants established, that the subject accident was caused by the means and methods of the work and that they did not possess the authority to supervise and control the means and methods of the plaintiff's work at the time of the accident, or have the duty to provide a hard hat. It also found that the Supreme Court properly denied their motion which was for summary judgment dismissing the common-law negligence cause of action as was premised upon the defendants' vicarious liability for the alleged negligent acts of Hartmann. Their motion failed to eliminate triable issues of fact as to the manner in which the accident occurred, including whether it occurred in the manner described by the plaintiff or in the manner described by the defendants' witnesses.
Weekes v Tishman Tech. Corp.
May 14, 2025
Appellate Division, Second Department
The defendant Tishman Technologies Corporation (hereinafter Tishman) was the construction manager with respect to the construction of a building (hereinafter the project) on premises owned by New York City Department of Design and Construction (hereinafter DDC). The plaintiff was employed by AABCO Sheet Metal Co., Inc. (hereinafter AABCO), to perform work on the project's HVAC system. The plaintiff alleges that he was injured in the course of his employment when, while helping dismantle a Baker scaffold belonging to another tradesperson who had been performing separate work on a ceiling, a piece of the scaffold swung and fell on the plaintiff's head.
The Supreme Court denied plaintiff’s motion for summary judgment on Labor Law §240(1) as well as 241(6) predicated upon a violation of 2 NYCRR 23-5.1(h) and granted defendants’ cross-motion seeking dismissal of his §240(1) claim and §241(6) as asserted against Defendant Tishman Technologies Corporation. The Supreme Court also denied plaintiff’s leave to renew his summary judgment motion.
Labor Law § 240(1) (EDA)
The Appellate Division reversed the Supreme Court finding that Tishman was a statutory agent of DDC and was, therefore, potentially liable for the plaintiff's alleged injuries under Labor Law § 240(1). Under the circumstances of this case, the fact that the plaintiff's alleged injuries occurred while he was helping another tradesperson disassemble the other tradesperson's scaffold does not preclude the application of Labor Law § 240(1).
PRACTICE POINT: Work that is ancillary or preparatory to a covered activity is also considered a covered activity (see Gallagher v Resnick, 107 AD3d at 944; see also Mananghaya v Bronx-Lebanon Hosp. Ctr., 165 AD3d 117, 123, 126).
Labor Law § 241(6) (TPW)
The Second Department held that the Supreme Court properly denied that branch of the plaintiff's motion which was for summary judgment on the issue of liability on so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated on a violation of 12 NYCRR 23-5.1(h), which requires that "[e]very scaffold shall be erected and removed under the supervision of a designated person." The plaintiff failed to establish a violation of that Industrial Code provision and that such alleged violation was a proximate cause of his alleged injuries. However, the court should have denied that branch of the defendants' cross-motion which was for summary judgment dismissing so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated on a violation of 12 NYCRR 23-5.1(h) insofar as asserted against Tishman. The defendants failed to establish that the alleged violation of that Industrial Code provision was not a proximate cause of the plaintiff's alleged injuries.
Baxter v Jada Constr. & Dev., Inc.
May 21, 2025
Appellate Division, Second Department
On April 4, 2016, while in the process of delivering a prefabricated fireplace to a semi-attached condominium unit under construction, the plaintiff allegedly was injured when he fell due to a slope between two driveways that created a height differential of approximately six to seven inches. At the time of the accident, the defendant Cambridge Heights Holdings, LLC (hereinafter Cambridge), owned the premises. The defendant Jada Construction, Inc., formerly known as Jada Construction & Development, Inc., was the general contractor for the construction project. The plaintiff sued the general contractor under both its present and former name (hereinafter together Jada).
The Supreme Court granted defendants’ motion for summary judgment dismissing plaintiff’s complaint against them asserting causes of action under Labor Law §200 and common-law negligence.
Labor Law § 200 and Common-Law Negligence (EDA)
The Appellate Division reversed the Supreme Court finding that defendant failed to prove that it neither created the dangerous condition nor had actual or constructive notice of its existence.
Cadena v Kupferstein
May 21, 2025
Appellate Division, Second Department
On June 29, 2020, the plaintiff, a carpenter employed by Molding Decor, Inc. (hereinafter Molding Decor), was working on a renovation project at property owned by the defendant Moses Kupferstein. Kupferstein was the sole owner of the defendant BBM Construction Corp. (hereinafter BBM), which was the general contractor on the project and which retained Molding Decor. On the day in question, the plaintiff allegedly was using a table saw to cut a piece of wood when the blade cut off part of one of his fingers.
The Supreme Court denied plaintiff’s motion for summary judgment under Labor Law §241(6) and granted defendants’ motion dismissing the complaint.
Labor Law § 241(6) (TPW)
The Second Department held that the Supreme Court properly determined that the statutory exemption contained in Labor Law § 241(6) applied to Kupferstein. "Owners of one- or two-family dwellings are exempt from liability under Labor Law § 241(6) unless they directed or controlled the work being performed". "In order for a defendant to receive the protection of the homeowner's exemption, the defendant must show that (1) the premises consisted of a one- or two-family residence, and (2) the owner did not direct or control the work being performed". The phrase "direct or control" is "construed strictly and refers to the situation where the owner supervises the method and manner of the work". "Instructions about aesthetic design matters, or retention of the limited power of general supervision, do not constitute direction or control" within the meaning of Labor Law § 241(6).
However, the Supreme Court should have denied that branch of the defendants' motion which was for summary judgment dismissing the Labor Law § 241(6) cause of action insofar as asserted against BBM. 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 and we unable to do so based on the given facts.
Montes-Vidal v New York State Thruway Auth.
May 28, 2025
Appellate Division, Second Department
In 2012, the New York State Thruway Auth. (hereinafter defendant) entered into a contract with Tappan Zee Constructors, LLC (hereinafter TZC), for TZC to be the design-builder contractor for the Tappan Zee Hudson River Crossing Project, which sought to demolish the Tappan Zee Bridge and build two new bridges. TZC performed the physical and demolition work on the Tappan Zee Bridge. The defendant's employees were not performing work or directing the demolition work on the Tappan Zee Bridge.
On April 5, 2018, in attempting to reach a portable scaffolding platform underneath the road span of the Tappan Zee Bridge, the claimant, while wearing a safety vest, a harness, and a "retractable yoyo" that attached the harness to the bridge, climbed three or four feet up a support column, lost his grip, and fell, landing on the platform below. The claimant's right foot landed on concrete debris, which slid beneath him and caused him to sustain injuries.
The Supreme Court granted defendants motion for summary judgment dismissing Plaintiff’s Labor Law §200 and §240(1) claims, and his Labor Law §241(6) claim predicated upon a violation of 12 NYCRR 23-1.7(e)(1) and (f), and denied Plaintiff cross-motion for summary judgment on those claims due to its untimeliness.
Labor Law § 240(1) (EDA)
The Appellate Division affirmed the Court of Claims finding that defendant demonstrated that the claimant was provided with safety equipment, such as a harness and "retractable yoyo," as well as ladders. In opposition, the claimant failed to raise a triable issue of fact as to whether the provided equipment was inadequate or whether the defendant violated Labor Law § 240(1).
Labor Law § 241(6) (TPW)
The Second Department concluded that the defendant demonstrated, prima facie, that the claimant lost his grip while climbing and slipped on debris on a platform, and did not trip in a passageway. Additionally, the defendant demonstrated, prima facie, that the workers were instructed to use ladders when accessing the portable scaffolding platform and that ladders were available at the work site. In opposition, the claimant failed to raise a triable issue of fact. Accordingly, the Court of Claims properly granted that branch of the defendant's motion which was for summary judgment dismissing so much of the Labor Law § 241(6) cause of action as was predicated upon violations of 12 NYCRR 23-1.7(e)(1) and (f), as they were inapplicable.
Labor Law § 200 and Common-Law Negligence (EDA)
The Appellate Division affirmed the Court of Claims finding that defendant demonstrated that it did not supervise the claimant's work and did not create the debris upon which the claimant slipped. In opposition, the claimant failed to raise a triable issue of fact.
New York Industrial Code Regulations (EDA)
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