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NG 645 Madison Ave LLC v Vanguard Constr. & Dev. Co., Inc.
June 3, 2025
Appellate Division, First Department
Plaintiff was directed by Vanguard, his employer, the general contractor, to cut away and remove marked objects in the ceiling to make room for a temporary sprinkler system to be installed by subcontractor R-Plumbing. His incident occurred when his electric Sawzall encountered an electrical bus, which powered the building’s chillers and causing a sudden electrical explosion, which knocked plaintiff from his ladder, resulting in plaintiff suffering burns from the explosion.
Before that work started, R-Plumbing accompanied the general contractor to learn where the anchors for the temporary sprinkler would be placed. The general contractor instructed R-Plumbing's worker to mark the objects in the ceiling that the general contractor identified as requiring removal, and one of those objects was the electrical bus. The general contractor’s supervisor had not previously seen an electrical bus and was unfamiliar with them. The general contractor testified that the day before the explosion, he had been informed that the power was shut off to the work area in question, but other evidence indicated that the electrical bus was separately controlled by another switch in a different basement room.
The trial court granted plaintiff's motion for partial summary judgment on his Labor Law § 241(6) claim, granted R-Plumbing’s motion for summary judgment dismissing the third-party complaint and all crossclaims against it, denied the electric subcontractor, Zerem’s motion for summary judgment dismissing the second third-party complaint and all crossclaims against it, and denied NG/BLR’s joint motion seeking dismissal of the 241(6) claim, summary judgment on its crossclaims against R-Pluming for contractual indemnity and breach of an insurance procurement provision, and summary judgment on its crossclaims against Zerem for common-law indemnity and breach of an insurance procurement provision.
 Labor Law § 241(6) (TJE)
The First Department affirmed the trial court’s decision granting plaintiff partial summary judgment on his Labor Law § 241(6) claim predicated on violations of 12 NYCRR 23-1.13(b)(1), (3) and (4). Those sections require appropriate inspection of electrical systems in a work zone, precautionary steps to be taken around power equipment, including de-energizing such equipment, and the placement of warning signs where appropriate to alert as to electrical hazards present. The Court held that these facts demonstrate NG/BLR's failure to abide by the safety measures called for in 12 NYCRR 23-1.13(b)(1), (3), and (4), and such failures constituted a proximate cause of plaintiff's injuries.
The Court rejected NG/BLR’s argument that they could not have violated the Industrial Code without written notice of the need to cut power to the area where Plaintiff was injured.
 Indemnity Issues in Labor Law (AMC)
The First Department affirmed the trial court’s decision to grant R. Plumbing’s motion for summary judgment seeking to dismiss the third-party complaint, and crossclaims. The Court held that although R-Plumbing’s indemnification provision was broad, it was not triggered as plaintiff’s injuries were remote from the work by R. Plumbing.
With respect to Zerem’s motion for summary judgment seeking to dismiss the second third-party action for contractual indemnification, the Court reversed the trial court and granted Zerem’s motion, finding that there was no agreement whereby Zerem obligated itself to indemnify NG/BLR for liability arising in connection with its work.
Berrones v 130 E. 18 Owners Corp.
June 12, 2025
Appellate Division, First Department
Plaintiff, an employee of Unibud, fell through a gap between a pipe scaffold and building façade that was hidden by plastic nailed to the scaffold and building. The trial court granted plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim against the owner, 130 E. 18 Owners, and the general contractor, Inter (collectively “defendants”), and denied Inter’s motion for summary judgment dismissing the complaint and contractual indemnification and breach of insurance procurement clause against Unibud, as well as Brenmac’s summary judgment motion seeking to dismiss all third-party and crossclaims against it.
 Labor Law § 240(1) (MAS)
The First Department affirmed the trial court’s decision. The secondhand hearsay accounts of the accident, allegedly relayed to Unibud and Inter, are insufficient to defeat plaintiff’s entitlement to summary judgment. Similarly, notations in uncertified hospital records do not rebut plaintiff’s showing where no evidence was adduced that the information was properly translated for plaintiff and the disputed cause of plaintiff’s injury was not germane to his diagnosis or treatment.
PRACTICE POINT: Hearsay, without more, is insufficient to defeat summary judgment. As for the uncertified medical records, defendants, as the proponents of the evidence, were obligated to show that plaintiff was the source of the information recorded in the records and that the translation was provided by a competent, objective interpreter whose translation was accurate. Here, defendants failed to demonstrate acceptable excuses for its failure to meet the strict requirement of tender in admissible form.
 Labor Law § 200 and Common-Law Negligence (EDA)
The First Department unanimously reversed the trial court’s denial of Inter's motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims, finding the motion should have been granted because plaintiff's injury resulted from the manner and means in which the work of his employer, Unibud, was performed, namely, a defect in the scaffold erected by Unibud.
Indemnity Issues in Labor Law (AMC)
The First Department reversed the trial court’s decision, finding that Brenmac’s motion seeking to dismiss the third-party complaint and all crossclaims against it should have been granted. The Court also held that Inter was entitled to summary judgment on its contractual indemnity claim against Unibud based on plaintiff’s testimony that the sidewalk bridge, erected by Brenmac was not involved in his accident, but rather the pipe scaffold was, which had been erected by Unibud.
Daniello v J.T. Magen & Co. Inc.
June 17, 2025
Appellate Division, First Department
On the day of his incident, Plaintiff was employed by third-party defendant USIS. Plaintiff's responsibility that day was to install jacks and run low voltage cable wires, that were previously installed, above the drop ceiling. Plaintiff used a six-foot A-frame ladder to access the wires. Plaintiff was reinstalling the ceiling tiles when he lost his balance and fell off the ladder. Plaintiff testified that he was both hands to perform the overhead work, when he was suddenly “jolted” by an unexpected drop of a ceiling tile he was handling, resulting in a “wiggle” in the ladder, when preceded his loss of balance and eventual fall, as there was nothing available for plaintiff to grab onto to brace himself against a fall.
The trial court granted defendants’ motion for summary judgment dismissing plaintiff's Labor Law § 240(1) claim and denied plaintiff's motion for partial summary judgment on the same claim.
Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court’s decision and granted plaintiff’s motion. It is irrelevant that Plaintiff inspected the ladder and found it to be in good order before using it, as a plaintiff is not required to demonstrate that the ladder was defective to make a showing of entitlement to summary judgment.
The Court also held that defendants failed to raise an issue of fact. Contrary to their contention, plaintiff’s fall from the ladder was “directly related to the work that he was performing, as opposed to his own misstep” or an unexplained loss of balance. To the extent defendants argued that the ladder did not fall until plaintiff first lost his balance; such argument does not, based on these facts, show that the ladder was an adequate safety device for plaintiff’s injury-producing work.
PRACTICE POINT: It does not matter whether the ladder shook prior to plaintiff’s fall, or as defendants maintain in this case, after plaintiff lost his balance and grabbed the top of it to steady himself. Under either scenario, the ladder was an adequate safety device.
Hasan v Macerich Co.
June 17, 2025
Appellate Division, First Department
Plaintiff stood on the top rung of a ladder in order to reach his work and fell. The trial court granted plaintiff's motion for summary judgment under Labor Law § 240(1); denied the motions of ABC and Macerich for summary judgment dismissing plaintiff's Labor Law § 240(1) claim; denied Macerich's motion for summary judgment on its breach of contract claim against ABC, but granted Macerich's motion on its contractual indemnification claim against ABC; granted ABC's motion for summary judgment dismissing Macerich's breach of contract claim against it, but denied ABC's motion as to Macerich's contractual and common-law indemnification and contribution claims.
Labor Law § 240(1) (MAS)
The First Department affirmed the trial court’s decision. Stills taken from the CCTV footage of the accident clearly show that the ladder’s height was insufficient. Defendants’ argument that plaintiff was the sole proximate cause of his accident, because he was moving the ladder from side to side by wiggling it, is unavailing because plaintiff learned that method of moving the ladder from supervisor, who was present that day. Moreover, plaintiff testified that he fell when he placed a “Gerry board” on top of a wall, after the ladder had settled.
PRACTICE POINT: Where, as here, the injured worker shows that the ladder provided to him was inadequate to perform the injury-producing work because he needed to stand on the top rung to reach his work, summary judgment will be awarded to Plaintiff. If the ladder is too short, then it is not an adequate safety device
Indemnity Issues in Labor Law (AMC)
The Appellate Division held that the Trial Court correctly granted Macerich summary judgment on the contractual indemnification claim against ABC. The Appellate Division concurred that ABC’s claim that they didn’t recall any contract negotiations, nor the retroactive clause contained within the contract, do not defeat the clear and unambiguous contract. Furthermore, the Court found that GOL § 5- 322.1 does not bar enforcement of the clause, as there is no evidence of any negligence on the part of Macerich, given that Plaintiff’s Labor Law § 200 and common-law negligence claims against Macerich were dismissed.
Vindell v Site 2 DSA Owner, LLC
June 4, 2025
Appellate Division, Second Department
Plaintiff, an employee of ECD, was injured while working at a construction site owned by the Site 2 DSA defendants (collectively “the owners”). Plaintiff commenced separate actions against the owners, the construction manager, T G Nickel, and a subcontractor, Earth Construction, which was later consolidated.
ECD was hired to excavate the dirt of a building on the construction site that had been demolished, provide the necessary support for the excavation, and install piles that would be used as structural support for a new building. At the time of plaintiff's accident, the construction site consisted of a 43,000-square-foot, open excavation area that was below street level and divided into cellar and subcellar levels. A nearby underground water source created high water levels above the subcellar level of the excavation site, resulting in water entering the subcellar level. The water needed to be remediated in order for the foundational and other construction work to proceed.
Earth Construction was hired to perform "dewatering services," and it installed a dewatering system to drain and pump the water from the cellar and subcellar levels of the excavation area to the street. At the time of plaintiff's accident, walls comprised of soil and grout provided temporary support for the excavation at the subcellar level and protection from water leaking through the walls into the subcellar excavation area. As part of its work, ECD installed plywood against these walls and injected waterproofing foam to stop leaking.
Plaintiff was at the bottom of the excavation area using a sledgehammer to remove a piece of wood that was supporting plywood on the excavation wall. The standing area was covered in one foot of water, which created a muddy bottom. After Plaintiff complained, some water was pumped out and the standing water was reduced only by three inches. Plaintiff struck the piece of wood with the sledgehammer and when the sledgehammer came down toward his feet, he tried to move, but his feet were stuck in the mud. He then lost his balance and fell backwards, sustaining injuries.
The trial court granted defendants’ motions dismissing plaintiff’s Labor Law § 241(6) claim predicated on a violation of 12 NYCRR 23-1.7(d) and the § 200 and common-law negligence claims.
Labor Law § 241(6) (TJE)
The Second Department affirmed the trial court's decision, finding that 12 NYCRR 23-1.7(d) was inapplicable, as plaintiff did not slip or trip and was not using a floor, passageway, walkway or other surface at the time of his accident and that plaintiff failed to raise an issue of fact.
Labor Law § 200 and Common-Law Negligence (EDA)
The Second Department unanimously reversed the trial court’s dismissal of these claims as defendants failed to establish their entitlement to judgment as a matter of law. The evidence submitted in support of the motion was conflicting as to the source of the water that created the muddy condition in which plaintiff's feet stuck and did not establish that plaintiff was employed for the specific purpose of correcting that defect, and that it was incident to the work.
Merlo v 49 Grove Realty, LLC
June 11, 2025
Appellate Division, Second Department
Plaintiff was injured at a construction site while working as a laborer for Ronalio. The accident occurred when several “laminate” sheets of metal, which were being stored in an upright position along a wall in a basement room at the site, toppled and pinned plaintiff against the floor. At the time, ABC was a general contractor at the site and had subcontracted work to Mid-State. Mid-State, in turn, subcontracted work to Ronalio.
The trial court granted defendants’ motions for summary judgment and dismissed plaintiff’s Labor Law § 240(1) and 241(6) predicated on a violation of 12 NYCRR 23-2.1(a)(1).
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s decision as ABC and Mid-State each established that plaintiff’s injuries were not caused by an elevation-related or gravity-related risk under the statute. In opposition, the Court held that plaintiffs failed to raise a triable issue of fact as to whether the metal sheets required securing for the purposes of plaintiff’s undertaking, which, at the time of his accident, simply involved retrieving a tool from the storage room where the metal sheets were located.
PRACTICE POINT: The extraordinary protections of Labor Law 240(1) extend only to a narrow class of special hazards, and do not encompass any and all perils that may be connected in some tangential way with the effects of gravity. With respect to falling objects, the statute applies where the falling of an object is related to a significant risk inherent in the relative elevation at which materials or loads must be positioned or secured. Therefore, a plaintiff must show more than simply that an object fell; rather, a plaintiff must show that, at the object fell, it was being hoisted or secured, or that the falling object required securing for the purposes of the undertaking.
Labor Law § 241(6) (TJE)
The Second Department affirmed the trial court’s dismissal of plaintiff’s Labor Law § 241(6) claim predicated on NYCRR 23-2.1(a) as it determined that regulation was inapplicable as the alleged incident did not occur in passageway, walkway, or other thoroughfare, and the Court held that plaintiffs failed to raise a triable issue of fact.
Cabrera v Provident Alpine Partners, L.P.
June 18, 2025
Appellate Division, Second Department
Plaintiff, an employee of Loyal, fell from an aluminum A-frame ladder while demolishing a portion of a wall attached to a ceiling in an apartment building owned by Provident. The trial court denied plaintiff’s motion for summary judgment under Labor Law § 240(1) and granted defendant’s cross-motion dismissing that and plaintiff’s 241(6) claim.
Labor Law § 240(1) (MAS)
The Second Department reversed the trial court’s decision and denied defendants’ cross-motion. Plaintiff established that he fell from a ladder that was defective or inadequately secured. However, Defendant raised a triable issue of fact as to whether plaintiff actually needed protection from the effects of gravity to perform his work and whether his actions were the sole proximate cause of his injuries. Defendant submitted transcripts of the deposition testimony of both Loyal’s principal and Cabrera’s supervisor, which reflect that plaintiff was not required to use a ladder for the work that he was directed to perform.
PRACTICE POINT: Where, as here, credible evidence reveals differing versions of the accident, one under which defendant would be liable and another under which it would not, questions of fact exist making summary judgment inappropriate. Here, the testimony raised a triable issue of fact as to whether plaintiff was the sole proximate cause of his injuries insofar as he engaged in an activity that he was not authorized or instructed to perform.
Labor Law § 241(6) (TJE)
The Second Department held that the trial court incorrectly concluded that defendant was entitled to summary judgment dismissing the Labor Law § 241(6) claim on the ground that the record was “devoid of any information” that defendant had “control over the worksite.” The Court also rejected defendant’s contentions that plaintiff’s alleged violations of Labor Law §241(6) were insufficient to support a claim, and that plaintiff failed to specifically identify the violations of Labor Law § 241(6) it relied upon until its opposition to defendant’s cross-motion.
The Court proceeded to conduct an analysis of 12 NYCRR 23-1.21(b)(3)(iv) finding it sufficiently specific to support a cause of action and that defendant failed to demonstrate in its motion it did not violate this provision. The Court also determined Defendant failed to meet its burden that it did not violate 12 NYCRR 23-1.21(b)(4)(ii) as they did not submit evidence of the condition of the specific ladder at issue or the surface on which the ladder was situated. As a result, the Court held that the trial court should have denied defendant’s cross-motion for summary judgment, regardless of the sufficiency of plaintiff’s opposition.
Acatila v Really Neat Realty, Inc.
June 25, 2025
Appellate Division, Second Department
The ladder on which Plaintiff was standing moved for no apparent reason, causing him to fall. The trial court granted plaintiff's motion for summary judgment on the issue of liability under Labor Law § 240(1).
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s decision as plaintiff established as a matter of law on the issue of liability on the claim alleging a violation of Labor Law 240(1) by submitting evidence that the ladder on which he was standing moved for no apparent reasons, causing him to fall. In opposition, defendants failed to raise a triable issue of fact.
PRACTICE POINT: This is a classic Labor Law 240(1) case. The collapse of a scaffold or ladder for no apparent reason while a plaintiff is engaged in an activity enumerated under Labor Law 240(1) creates a presumption that the ladder or scaffold did not afford proper protection. To establish a violation under 240(1), there must be evidence that the ladder was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial factor in causing plaintiff’s injuries. Where a ladder slides, shifts, tips over, or otherwise collapses for no apparent reason, the statute is violated.
Garcia v Fed LI, LLC
June 25, 2025
Appellate Division, Second Department
Plaintiff was injured when he fell from an extension ladder while working on a project owned by the defendants Fed LI, LLC, GSM LI, LLC, ICA LI, LLC, and SAF LI, LLC (collectively “the owner defendants”), and leased by Multi. The trial court denied plaintiffs' motion for summary judgment on the Labor Law § 240(1) claim, granted JPS’s motion for summary judgment dismissing the third-party contractual indemnification claim, denied Multi’s cross-motion for summary judgment on the third-party cause of action for contractual indemnity, and denied the Multi’s separate cross-motion for summary judgment dismissing the complaint against them.
Labor Law § 240(1) (MAS)
The Second Department reversed the trial court’s decision and granted plaintiff summary judgment. Plaintiff established that 240(1) was violated and that the violation was a proximate cause of the injuries by submitting evidence that the unsecured ladder moved and fell, causing the injured to fall, and that he was not provided with any safety devices. In opposition, the Court held that the defendants failed to raise a triable issue of fact as to whether plaintiff’s alleged misuse of the ladder was the sole proximate cause of the accident.
PRACTICE POINT: Where, as here, Plaintiff is provided with an unsecured ladder and no safety devices, he cannot be held solely at fault for his injuries
Breslin v Access Auto Sales & Serv., LLC
June 12, 2025
Appellate Division, Third Department
Plaintiff, a cable technician, was injured while installing new cable telephone, television and internet services at the defendant's office. Plaintiff worked for Spectrum, who was tasked with performing the installation work. The work required plaintiff to use a 28-foot extension ladder to reach the “feeder cable" that was strung from the utility poles outside the business. These poles were owned by Niagara Mohawk d/b/a National Grid, but upon which Spectrum had an agreement to string its cables. Plaintiff would splice a new cable into the feeder cable, climb down the ladder and run the new cable back to the back corner of the Access Auto building, where he would attach the cable to the access point where the previous provider’s wiring was installed and do whatever work was necessary to hook up the new service inside. Plaintiff does not remember what occurred, but the record reflects that he fell from the ladder after splicing the new cable and that he sustained serious injuries. The trial court found numerous questions of fact and denied all motions for summary judgment in all respects.
Labor Law § 240(1) (MAS)
The Third Department affirmed the trial court's decision, finding numerous questions as to how plaintiff set up the safety equipment provided to him and whether there was any problem with that equipment which led to the accident, leaving open the possibilities, among other things, that the equipment functioned properly and plaintiff simply lost his balance or that the ladder shifted in some manner because it was not properly secured.
PRACTICE POINT: Whether defendants provided proper protection under Labor Law 240(1) is ordinarily a question of fact such as in this case, unless the unrefuted evidence establishes that the device in question collapsed, slipped, or otherwise failed to perform its function of supporting the worker and his or her materials.
Labor Law § 241(6) (TJE)
Plaintiffs claimed violations of 2 NYCRR 23-1.16[b] requiring that harnesses and other safety devices be provided to prevent falls greater than five feet and 12 NYCRR 23-1.21 [b] [4] [iv] requiring ladders be secured by a person holding it in place at the bottom or by mechanical means if the work is being performed more than 10 feet above the ladder's footing. For the same reasons as noted in its 240(1) analysis, the Third Department held that the trial court correctly determined that no party was entitled to summary judgment on plaintiff’s Labor Law § 241(6) claim.
Labor Law § 200 and Common-Law Negligence (EDA)
The Appellate Division reversed the Supreme Court finding tht Defendant was entitled to summary judgment on Plaintiff’s Labor law§ 200 and common-law indemnity claims. There was no dispute that National Grid had no connection at all to the installation work performed by Breslin and that Spectrum had no one on site to supervise him when he was doing it. Defendants also came forward with proof that Access Auto had no supervisory control over Breslin and that Spectrum played next to no role in overseeing its subcontractors' installation work beyond a general authority to inspect after the fact that would not give rise to liability under Labor Law § 200. Plaintiff failed to raise an issue of fact.
Indemnity Issues in Labor Law (AMC)
The Third Department reversed the trial court’s decision denying Access Auto’s motion for summary judgment, finding that the record was devoid of any evidence that Access Auto was negligent in the leadup to plaintiff’s accident and therefore, demonstrated its entitlement to the dismissal of the crossclaims against it for common-law indemnification.
The Court found that it was “questionable” as to whether any other defendant asserted a crossclaim for contractual indemnification against Access Auto. However, it evaluated any possible claims and found that the absence of any negligence on Access Auto’s part is fatal to those claims.
Prevost v Associated Materials, LLC
June 6, 2025
Appellate Division, Fourth Department
Plaintiff fell from a homeowner's roof while working for C & M. Quad-Tech entered into a contract with the homeowner to construct and frame an addition to the home and to perform roofing on the addition and the rest of the home. Quad-Tech hired Creekside to perform the new construction and hired C & M to perform the remaining roofing. The trial court granted Creekside’s motion for summary judgment on the grounds it was not a general contractor for the purposes of Labor Law §§ 240(1) or 241(6).
Labor Law § 240(1) (MAS)
The Fourth Department unanimously affirmed the trial court’s decision because Creekside demonstrated that it was a prime contractor for general construction of the home addition, not a general contractor subject to Labor Law §§ 240(1) or 241(6) liability. Creekside’s evidence established that it had no control over the work being done by plaintiff and no authority, delegated or otherwise, to coordinate and control the activities of C & M or its employees. Plaintiff’s opposing submissions failed to raise a triable issue of fact, and instead, the Court acknowledged that plaintiff conceded in his affidavit that C & M alone supervised and directed his injury-producing work.
PRACTICE POINT: There is a distinction between a general contractor and a prime contractor for general construction. A general contractor will be held liable under Labor Law 240(1) and 241(6) if it was responsible for coordinating and supervising the entire construction project and was invested with a concomitant power to enforce safety standards and to hire responsible contractors. Conversely, a prime contractor has no liability under the statutes for injuries caused to the employees of other contractors with whom they are not in privity of contract, so long as the prime contractor has not been delegated the authority to oversee and control those workers’ activities. Critically, it is the actual authority and responsibility to coordinate, supervise, enforce, and hire that is dispositive – the mere status or designation of “general contractor” does not establish liability.
Wheeler v BrandSafway Indus., LLC
June 27, 2025
Appellate Division, Fourth Department
Plaintiff fell from a scaffold ladder while working as an employee of a nonparty on a project to construct two boats to be used for tours of Niagara Falls. Defendant NYPA owned the property on which the boats were being constructed, and NYPA granted a license and permit to the MOTM defendants to use its property. The MOTM defendants hired plaintiff's employer to serve as the general contractor on the project, and plaintiff's employer then contracted with defendant BrandSafway to erect the scaffolds on the site so that workers could access the top of the boats as they were being constructed. At the time of the accident, plaintiff was attempting to climb the scaffold ladder while carrying a box of wire that weighed 25-30 pounds. No stair towers, ramps or runways had been constructed before plaintiff's accident.
The MOTM defendants preserved video that captured plaintiff's fall from the scaffold ladder, and had no reason to know at that time that video recordings of other parts of the construction site may be relevant to future litigation. Thus, the video footage that did not depict the accident was erased during the course of normal business procedures. Additional video footage of the accident was disclosed the day before the evidentiary hearing directed by the order in appeal No. 2, additional discovery is necessary. The additional footage depicts the incident from a slightly wider angle than in the footage that was appropriately provided during discovery.
The Supreme Court denied the motion of plaintiff for partial summary judgment and denied in part the motion and cross-motion of defendants for summary judgment.
 Labor Law § 240(1) (DRA)
There were a lot of moving parts in this case, but addressing only the §240(1) claim here the court below dismissed the §240(1) finding apparent that the plaintiff was the sole proximate cause of his fall by carrying a roll of welding wire up the ladder. The Fourth found a question of fact as to “whether the scaffold ladder provided proper protection to plaintiff and whether plaintiff's alleged negligence was the sole proximate cause of his injuries are issues for the jury to resolve at trial.” The fall was, as mentioned above, caught on video and can be shown to the jury. This is my case, and I will let you know what happens, setting a trial date next week or so.
PRACTICE POINT: The argument that the ladder provided adequate protection is difficult to make, even when there is video showing the plaintiff miss a step and fall on video. This case had an argument that if there was a violation of a NYCRR Reg, that it must be a proximate cause and thus summary judgment for the plaintiff on §240(1) where, as here, there was a prima facie case. The Fourth did not follow that argument. More to follow, this one is not over. We argued the appeal for almost an hour.
Labor Law § 241(6) (TJE)
The Appellate Division found BrandSafway’s design and provision of the metal scaffolding at issue did not render them a statutory agent for the purpose of the Labor Law, and they had no authority to control plaintiff or his work on the jobsite. The Court rejected contentions that a contractual provision requiring them to comply with all applicable safety laws, rules, and regulations sufficient to create statutory agent status for the purposes of the Labor Law absent control over the jobsite or the plaintiff.
The Court found Industrial Code section 23-1.7 (f) is applicable to this case. The Court did not reject Co-Defendants position that 12 NYCRR 23-5.3 (f) was applicable due to the use of metal scaffolds but instead found that such provisions are not mutually exclusive and noted that Plaintiff chose to pursue a violation of 12 NYCRR 23-1.7 (f). In practice, this means that any time a metal scaffold is present, it must also comply with 12 NYCRR 23-1.7 (f) and stairways, ramps or runways must be provided for plaintiff to access his elevated work site location.
The Court found an issue of fact as to whether the nature of the work prevented stairways, ramps, or runways from being provided in the circumstances of this case. As a result, the Fourth Department concluded no summary judgment was appropriate on Plaintiff’s Labor Law 241(6) claims and the Trial Court properly denied all summary judgment motions on that issue (with the exception of BrandSafway).
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 against BrandSafway. It found that BrandSafway was not a statutory agent and that the court properly granted BrandSafway's cross-motion for summary judgment dismissing the Labor Law §200 claim. BrandSafway had no authority to supervise or control plaintiff or his work. Although plaintiff and codefendants contend that BrandSafway had control over the work site, i.e., the scaffold, they rely exclusively on the subcontract, which merely requires BrandSafway to comply with "all applicable safety laws, rules and regulations." There is no language that delegates to BrandSafway the authority to supervise or control any part of the work site. Although a subcontractor that is not a statutory agent of the owner or general contractor "may still be liable in common-law negligence for dangerous or defective conditions that it fails to remedy despite having actual notice of those conditions" the court concluded that BrandSafway established its entitlement to judgment as a matter of law with respect to that claim, and neither plaintiff nor codefendants raised a triable issue of fact.
New York Industrial Code Regulations (EDA)
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