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Pereira v 504 W 34, LLC
July 1, 2025
Appellate Division, First Department
Plaintiff, a concrete worker employed by a nonparty subcontractor, walked across the site of a construction project on his way to do work on the story below, and allegedly tripped on a floor laid with a net of wire mesh used to internally reinforce poured and hardened concrete. According to plaintiff, the area of wire mesh that he tripped on was upright and sticking out because it was not properly tied down. The trial court denied defendants’ motion for summary judgment seeking dismissal of plaintiff’s Labor Law § 241(6) claim predicated on a violation of Industrial Code (12 NYCRR) §§ 23-1.7(e)(1) and (2).
 Labor Law § 241(6) (TJE)
The First Department’s reversed the trial court and found that plaintiff did not trip in a “passageway” as defined by Industrial Code § 23-1.7(e)(1), but instead in an “open working area” as defined in Industrial Code § 23-1.7(e)(2). The Court also denied defendants’ motion for dismissal of Industrial Code § 23-1.7(e)(2), finding an issue of fact as to whether the upright wire mesh was “clearly defined or distinct” as to render it a “sharp projection.” The Court further found an issue of fact as to whether the wire mesh was integral to the building’s structural concrete work if inadequately secured or covered as alleged.
Rodriguez v Riverside Ctr. Site 5 Owner LLC
July 17, 2025
Appellate Division, First Department
Plaintiff was injured while working as a delivery truck driver for Port Morris. He had just completed a delivery of tiles for other employees to install when he stepped and fell into a two-foot by three-foot hole near a temporary loading dock ramp. Riverside owned the premises, Tishman was the construction manager, and Five Star was the electrical contractor responsible for installing temporary lighting during the project. The trial court granted Five Star’s motion for summary judgment and Riverside and Tishman’s cross-motion for summary judgment dismissing plaintiff’s Labor Law §§ 240(1), 241(6) claims against all defendants, and his § 200 claim as to Five Star. The trial court also denied plaintiff’s motion for leave to amend his bill of particulars to assert a violation of an additional regulation and partial summary judgement under §§ 240(1) and 241(6).
 Labor Law § 240(1) (MAS)
The First Department reversed the trial court’s decision by denying defendants’ motion for summary judgment and granted plaintiff’s motion under Labor Law § 240 because plaintiff’s work in delivering and unloading tiles to be used in the covered activity was “necessary and incidental” to the protected activity. Thus, the Court deemed plaintiff was within the class of workers protected by the statute, notwithstanding that he was not assigned to participate in the installation of the tiles. However, the Court affirmed dismissal of all claims as to Five Star, but on a different rationale than the trial court, finding Five Star was neither an owner, general contractor, nor their statutory agent. Five Star’s work as the electrical contractor was limited to providing electrical installation and temporary lighting and did not encompass either tile work or maintaining the temporary ramp or surrounding areas.
PRACTICE POINT: Labor Law § 240(1) protects persons engaged “in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.” The task a plaintiff is performing at the exact moment of their accident is not dispositive of whether they were engaged in a protected activity for purposes of liability under this statute. Rather, the inquiry includes whether plaintiff’s employer was contracted to perform the kind of work enumerated in the statute and whether plaintiff was performing work “necessary and incidental” to a protected activity.
To be treated as a statutory agent, the subcontractor must have the authority (typically via a written agreement) to supervise and control the specific work area involved or the injury-producing work. If the subcontractor’s area of authority is over a different portion of the work or a different area than where the injury occurred (like Five Star), then there can be no liability under that theory.
Labor Law § 241(6) (TJE)
The First Department affirmed dismissal of plaintiff’s Labor Law § 241(6) claim against Five Star as Five Star was not a statutory agent as their role was limited to providing electrical installation and temporary lighting and its work did not encompass tile work or maintaining the temporary ramp or surrounding areas. Plaintiff’s § 241(6) claim against Riverside and Tishman were not addressed by the Court because of their liability under § 240(1).
 Labor Law § 200 and Common-Law Negligence (EDA)
The First Department affirmed the trial court’s decision to dismiss the Labor Law § 200 claims because Five Star did not have supervision and control over the specific work area involved or the work which rise to the injury.
Palumbo v Citigroup Tech., Inc.
July 24, 2025
Appellate Division, First Department
Plaintiff was injured while standing on a stack of two pallets 10 ½ to 20 inches high to use an elevated wet saw, when his foot broke through one of the wooden slabs of the top pallet, causing him to lose his balance and fall to the ground. The wet saw was installed inside a plastic tub placed on cinder blocks. The stack of pallets next to the wet saw enabled plaintiff to be at the same height as the wet saw while operating it for his masonry work. The modification was made to address a tenant complaint about water run-offs from the wet saw. The trial court granted defendants’ summary judgment motion dismissing the Labor Law §§ 240(1), 241(6), 200 and common-law negligence claims apart from the § 241(6) claim based on a violation of Industrial Code (12 NYCRR) § 23-1.5(c)(3).
Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court’s decision, granted plaintiff’s cross-motion, and denied defendants’ motion. The Court held that plaintiffs were entitled to summary judgment because the evidence showed that plaintiff’s fall was the result of the exposure to an elevation-related hazard. Specifically, the stack of pallets was being used to facilitate plaintiff’s access to the wet saw, which itself had been placed at an elevation because of the modification. The Court also found as a matter of law that the height differential of 10½ to 20 inches was not de minimis, despite previously determining that a height differential of at most 12 inches above the floor was insufficient to find an elevation-related risk. The Court noted that case law has evolved on that issue, and courts have since found violations of § 240(1) based on falls from similar heights. Moreover, Tishman’s senior superintendent admitted that the makeshift pallet structure was an “improper work platform” that was “against the most basic safety rules.”
PRACTICE POINT: There is no bright-line minimum height differential that determines whether an elevation-hazard exists. This case is an example of what happens when the record establishes that plaintiff’s fall was the result of exposure to an elevation-related hazard.
Labor Law § 241(6) (TJE)
As a result of the First Department’s decision under Labor Law § 240(1) liability, the § 241(6) issue was not addressed.
Labor Law § 200 and Common-Law Negligence (EDA)
The First Department affirmed the trial court’s decision to dismiss the Labor Law § 200 claims because the accident arose from the means and methods of plaintiff's work and not a dangerous premise condition, as the pallets were placed to accommodate the new height of the wet saw. Tishman did not direct or supervise plaintiff's work. Although Tishman had general authority to supervise and coordinate subcontractors, including plaintiff's employer, the Court held that this general authority fell short of the level of supervision or control over plaintiff's work required to find a general contractor liable under Labor Law § 200.
Rosario v Horizon Networks, Inc.
July 2, 2025
Appellate Division, Second Department
Plaintiff was injured when he fell from an unsecured A-frame ladder while installing security cameras on the exterior facade of certain premises owned by Horizon and leased by Cara Mia. Plaintiff was hired to perform the installation by Paragon, an information technology services company from which Cara Mia purchased the security cameras. The trial court denied plaintiff’s motion for summary judgment under Labor Law § 240(1) and granted Horizon’s and Cara Mia’s motion for summary judgment dismissing the Labor Law § 241(6) claim against them but denied summary judgment on their crossclaim for common-law indemnification against Paragon.
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s decision to deny plaintiff summary judgment as he failed to eliminate all triable issues of fact as to whether he slipped or slid down the ladder or whether the ladder collapsed. However, the Court declined defendants’ request to search the record and award them summary judgment, finding triable issues of fact as to how the accident occurred and whether plaintiff’s own acts or omissions were the sole proximate cause of his injuries.
PRACTICE POINT: To establish a violation under Labor Law § 240(1) because of a fall from a ladder, 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, for instance, plaintiff falls from a ladder because he or she lost his or her balance, and there is no evidence that the ladder was defective or inadequate, a defendant is not liable. Conversely, where a ladder slides, shifts, tips over, or otherwise collapses for no apparent reason, a violation has been established.
Labor Law § 241(6) (TJE)
The Second Department found 12 NYCRR § 23-1.21(e)(3), which requires that a stepladder be secured while work is being performed from a step of the stepladder 10 feet or more above the footing, was sufficiently specific to support a § 241(6) claim. The Court also found issues of fact as to whether a violation of § 23-1.21(e)(3) occurred, whether it was a proximate cause of the accident, and whether plaintiff’s actions or omissions were the sole proximate cause of the accident.
 Indemnity Issues in Labor Law (PCSM)
The Second Department held that the trial court properly denied the branch of the Horizon’s cross-motion seeking summary judgment on their crossclaim for common-law indemnification against Paragon. The Court noted that liability for indemnification may only be imposed against those parties who actually exercise supervision, not those who simply have the authority to do so. The Court found that Horizon failed to eliminate triable issues of fact as to whether Paragon actually directed, supervised, or controlled the work that gave rise to the injured plaintiff's alleged injuries.
Ruiz v Ewan
July 2, 2025
Appellate Division, Second Department
Plaintiff was allegedly injured during the construction of a home when a ladder he was descending slipped out from under him, causing him to fall 10 to 12 feet to a balcony below. The trial court denied plaintiff’s motion for summary judgment on Labor Law § 240(1) against the general contractor for the construction project, Peroni.
Labor Law § 240(1) (MAS)
The Second Department reversed the trial court’s decision and granted plaintiff’s motion. Plaintiff demonstrated that he was exposed to an elevation-risk covered under the statute because the ladder slipped out from under him as he descended from the roof, causing the ladder to fall away from the wall, and the inadequately secured ladder was a proximate cause of plaintiff’s injuries. The Court rejected defendant’s sole proximate cause argument since defendant’s principal acknowledged that he did not witness the accident and that the ladder “was already back in its position, and back up and tethered” by the time of his inspection.
PRACTICE POINT: For a plaintiff to prevail under Labor Law § 240(1), he or she must prove that a defendant violated the statute and that such violation was a proximate cause of his or her injuries. With respect to accidents involving ladders, liability will be imposed when the evidence shows that the subject ladder was inadequately secured and that the failure to secure the ladder was a substantial factor in causing plaintiff’s injuries. In this case, the trial court should have granted summary judgment to plaintiff as the ladder was inadequately secured and that violation was a proximate of the injuries.
Acosta v Shanahan Group, LLC
July 9, 2025
Appellate Division, Second Department
Plaintiff was standing on a rafter that collapsed. The trial court denied plaintiff’s summary judgment motion as untimely and denied defendant’s motion for summary judgment seeking dismissal of plaintiff’s Labor Law §240(1) claim.
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.
Novegil-Peralta v Rettig
July 23, 2025
Appellate Division, Second Department
Plaintiff, an employee of Prestige, allegedly fell from a ladder while working on a construction project at a property owned by LRL. LRL hired Prestige to perform the framing work for the construction project. The trial court granted Bullrock’s and Gary Rettig’s motions for summary judgement seeking dismissal of the complaint against them, denied plaintiff’s cross-motion to compel discovery, and granted Gary Rettig and Laura Rettig, Ltd.’s (collectively the Rettig defendants) request for a protective order.
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s decision. Bullock was entitled to dismissal of the Labor Law § 240(1) by demonstrating that it was not the owner, general contractor, or an agent of the owner of general contractor, and that it had no supervisory control or authority over the work being done where plaintiff was allegedly injured. Gary Retting’s proof demonstrated that LRL contracted with Prestige to perform the framing work and that Retting’s involvement with the project was solely in the capacity of a corporate officer of LRL. The Retting defendants were also entitled to dismissal of this claim as they also established that they were not an owner, general contractor, or their agent and that they lacked supervisory control or authority over the injury-producing work.
The Court additionally affirmed the trial court’s decision to deny plaintiff’s cross-motion to compel discovery because plaintiff failed to offer an evidentiary basis for the proposition that the requested discovery may lead to relevant evidence, or that facts essential to oppose the motions were exclusively within the knowledge and control of LRL.
PRACTICE POINT: A party is deemed to be an agent of an owner or general contractor under the Labor Law where it has the authority to control the injury-producing activity to avoid or correct the unsafe condition. Bonus tip is that when opposing a motion for summary judgment by arguing it is premature, the nonmoving party must offer an evidentiary basis to suggest that additional discovery may lead to relevant evidence, or that facts essential to opposing the motion were exclusively within the knowledge and control of the movant. Here, plaintiff could not show that additional discovery was needed since defendants conclusively established that they were not appropriate Labor Law defendants.
Labor Law § 241(6) (TJE)
The Second Department held that Bullrock and Gary Rettig established that they were not statutory agents as they were not the general contractor, were not present on the day of the accident, had no supervisory authority or control over plaintiff’s work, and did not provide plaintiff any equipment or tools.
Labor Law § 200 and Common-Law Negligence (EDA)
The Second Department affirmed the trial court’s decision to dismiss the Labor Law § 200 claims because Bullrock and Rettig demonstrated that they were not an owner, a general contractor, or an agent of the owner or general contractor, and that neither had supervisory control or authority over the work being done where plaintiff was injured.
Joya v E 31 Partners, LLC
July 30, 2025
Appellate Division, Second Department
Plaintiff was employed by Blue Stone and was tasked with disassembling a fence made of plywood sheets at a worksite. Plaintiff was instructed to hold one side of the plywood fence with another worker, while a third worker removed the nails from the other side of the fence, allowing each sheet of plywood to be removed. One of the plywood sheets fell, striking plaintiff in the head. The trial court granted plaintiff’s summary judgment motion on liability under Labor Law § 240.
Labor Law § 240(1) (MAS)
The Second Department reversed the trial court’s decision to deny plaintiff’s motion because he failed to eliminate all triable issues of fact as to whether the accident was the result of an elevation-related hazard or gravity-related risk encompassed by Labor Law § 240(1). The Court noted he failed to establish the height or the height and weight of the plywood sheet that struck him. He also failed to eliminate triable issues as to how the accident occurred and whether, under the facts of this case, this was a situation where a securing device of the kind enumerated in the statute would have been necessary or even expected.
PRACTICE POINT: With respect to falling object cases, the statute applies where the falling object is related to a significant risk inherent in the relative elevation at which materials or loads must be positioned or secured. A plaintiff must demonstrate that at the same time the object fell, it was either (1) being hoisted or secured, or (2) required securing for purposes of the injury-producing work. Since plaintiff in this case failed to meet his burden, the Court never even considered the adequacy of defendants’ opposition papers.
Pillco v 160 Dikeman St., LLC
July 30, 2025
Appellate Division, Second Department
Plaintiff allegedly was injured as he was removing a piece of sheetrock from the first-floor ceiling when the 20-pound sheetrock detached from the ceiling and fell on his right shoulder, causing the ladder to shake, and led to him falling seven feet off the ladder landing on his back with the ladder and sheetrock on top of him. The trial court denied plaintiff’s motion for summary judgment on Labor Law § 240(1), who relied on his deposition testimony with the aid of a Spanish language interpreter. In opposition to plaintiff’s motion, his employer submitted an affidavit of a co-owner of ATA who did not personally witness the accident and plaintiff’s certified medical records, which included a statement that “Accident: Patient was on a ladder, was picking up heavy [sheetrock] and felt a pull on his lower back and R shoulder.”
Labor Law § 240(1) (MAS)
The issue in this appeal is whether a certain statement appearing in plaintiff’s medical records was properly considered under the business records exception to the hearsay rule to defeat plaintiff’s motion for summary judgment. The Second Department held that the challenged statement was germane to plaintiff’s medical diagnosis and treatment, and therefore, was admissible under the business records exception.
PRACTICE POINT: Did you know that the challenged statement regarding how the accident occurred in the medical records involves multiple levels of hearsay? The first level of hearsay is the medical record themselves, and where the proper foundation is laid, medical records may be admissible through the business records exception. However, medical and hospital records may contain not only written statements reflecting the medical provider’s own personal knowledge, but also the statements of the patient, statements of others accompanying the patient, and/or statements and reports by other medical providers. Such statements and reports, contained in the medical records, are hearsay within hearsay. Accordingly, the only entries in medical records that are admissible under the business records exception are those that are germane to the diagnosis or treatment of the patient. Conversely, entries that are not germane to medical diagnosis and treatment may not be regarded as having been made in the regular course of the hospital’s business and, thus, are not admissible under the business records exception. Here, the Court found that the hearsay within hearsay statement was germane to plaintiff’s medical diagnosis and treatment.
Singh v 96 16th St., LLC
July 30, 2025
Appellate Division, Second Department
Plaintiff allegedly was injured when a scaffold that he was standing on collapsed while working on a construction project owned by 96 16th Street, LLC (the LLC). The trial court denied defendants’ motions to dismiss the complaint alleging violations of Labor Law §§ 240(1), 241(6), 200 and common-law negligence against Jorge Mastropietro and Architect Atelier under theories of piercing the corporate veil and alter ego.
Labor Law § 240(1) (MAS)
The Second Department reversed the trial court’s decision and granted defendants’ motion, finding the complaint only contained speculative and conclusory assertions that Mastropietro dominated the LLC, disregarded corporate formalities, and allowed the LLC to remain undercapitalized and underinsured, and that Mastropietro’s failure to observe corporate formalities prevented plaintiff from recovering damages for his alleged injuries. Contrary to plaintiff’s contention, the Court found that the materials submitted by plaintiff failed to remedy these pleadings defects, For the same reasons, the Court held that plaintiff failed to adequately allege or evince facts that would support imposed liability on Architect Atelier as an alleged alter ego of the LLC
PRACTICE POINT: On a motion to dismiss a complaint under CPLR § 3211(a)(7), the court must accept the facts alleged by plaintiff as true and liberally construe the complaint, giving it the benefit of every favorable inference. Conclusory allegations – claims consisting of bare legal conclusions with no factual specificity – are insufficient to survive a motion to dismiss. Evidentiary material submitted by plaintiff in opposition to such a motion may be considered to remedy defects in the complaint. While the decision whether to pierce the corporate veil in a given case will necessarily depend on the facts, generally, piercing the corporate veil requires a showing that (1) the owners exercised complete domination of the corporation or LLC in respect to the transaction attacked; and (2) that such domination was used to commit a fraud or wrong against plaintiff which resulted in plaintiff’s injury. Here, plaintiff’s complaint, when read with his evidentiary submissions, failed to adequately allege facts that would support a finding that Mastropietro completely dominated the LLC or that such domination was used to commit a wrong or injustice against plaintiff.
Zampko v Houghtaling
July 30, 2025
Appellate Division, Second Department
Plaintiff was injured while working on the roof of an automotive repair shop owned or controlled by defendants Alan Houghtaling and Lisa Schoonmaker. When the ladder plaintiff was using to access the roof fell away from the building while he was stepping from the ladder onto the roof, he fell to the ground. The trial court denied plaintiff’s motion for summary judgment on his Labor Law §§ 240(1) and 241(6) claims and granted defendants’ cross-motion dismissing the complaint.
Labor Law § 240(1) (MAS)
The Second Department reversed the trial court’s decision and denied defendants’ cross-motion, finding that they failed to eliminate triable issues of fact as to whether plaintiff was a hired worker entitled to the protections of the Labor Law. Houghtaling, who owned and operated the repair shop, testified at his deposition that a friend of plaintiff had approached him about helping plaintiff, who was “down and out,” by fixing plaintiff’s car. Houghtaling responded that plaintiff should bring in his car and that he would “do the best that [he] c[ould], like [he did] for everybody.” When plaintiff arrived, Houghtaling told him the repairs would cost $900. Plaintiff asked what he could “in return” and according to Houghtaling, the roof of the shop had been leaking for five years, and he had intended to fix the roof himself. Houghtaling told plaintiff that he could seal coat the roof of the shop. Houghtaling performed the repairs on plaintiff’s car at no charge, and the following weekend, plaintiff started working on the roof.
Based on those facts, the Second Department found triable issues of fact as to whether the arrangement between plaintiff and Houghtaling bore “the traditional hallmarks of an employment relationship,” including a “mutual obligation … revealing an economic motivation for completing the task” and the employer’s right to decide “whether the task undertaken by the employee has been completed satisfactorily.”
The Court also denied defendants’ cross-motion on the alternative sole proximate cause defense as plaintiff’s failure to have Houghtaling hold the bottom of the ladder did not demonstrate that plaintiff was the sole proximate cause of the accident because he chose not to use available safety devices.
PRACTICE POINT: We analyze every Labor Law case using the same four criteria: (1) appropriate plaintiff; (2) appropriate defendant; (3) covered/protected activity; and (4) elevation-related/gravity-related risk. The disputed claim in this case is whether plaintiff is an appropriate plaintiff. An injured worker must demonstrate that he or she was both permitted or suffered to work on a building or structure and he or she was hired by someone, be it owner, contractor or their agent. Thus, a volunteer who offers his or her services gratuitously is not a protected person so employed. Additionally, the sole proximate cause defense did not apply because defendants could not establish the third element. Remember, it only takes one missing element to render the sole proximate cause defense inapplicable.
Labor Law § 241(6) (TJE)
The Second Department reversed the trial court’s decision and found an issue of fact as to whether plaintiff was a volunteer.
Labor Law § 200 and Common-Law Negligence (EDA)
The Second Department affirmed the trial court’s decision to dismiss the Labor Law § 200 claims because defendants demonstrated that they lacked sufficient supervisory control over the plaintiff's work to subject them to liability under either Labor Law § 200 or common-law negligence. In opposition, the Court also held that plaintiff failed to raise a triable issue of fact.
Nusbaum v 1455 Wash. Ave., LLC.
July 24, 2025
Appellate Division, Third Department
Plaintiff, an employee of AJ Sign, fell from a ladder during the installation of a convenience store sign. Leading up to this incident, 7-Eleven leased property owned by the LLC and, upon occupying the property, contacted LSI to replace certain commercial signage on the property. To this end, LSI sent a purchase order to MC Group/Icon, d/b/a Stratus, and Stratus in turn contracted with Top Line d/b/a AJ Sign, to install the sign. The trial court denied MC Group’s motion for summary judgement seeking dismissal of LLC and 7-Eleven’s crossclaims against it.
Labor Law § 240(1) (MAS)
The Third Department affirmed the trial court’s decision. Stratus’ service agreement with AJ Sign expressly provided that, although AJ Sign was to act as an “independent contractor,” its role as a “field partner” required that it adhere to certain safety standards and applicable laws, and that work be performed according to Stratus’ specifications. Stratus further retained the right “to have access to, and be allowed to, review and inspect” all documentation related to the project and to have “access to, and discuss with, [AJ Sign’s] personnel on a regular and ongoing basis” concerning the project. Under the terms of the agreement, AJ Sign’s failure to follow safe practices as described could result in Stratus taking “disciplinary action.” The purchase order similarly required AJ Sign to “perform all work under [the agreement] in a skillful, diligent, thorough and careful manner,” to follow several detailed specifications for the work performed, and for AJ Sign workers to “identify themselves upon arrival [at the project site] as representatives of Stratus.”
Based on the contradicting evidence, the Court agreed with the trial court’s finding of an issue of fact as to the extent of Stratus’ control and supervision over plaintiff’s injury-producing work.
PRACTICE POINT: The issue here is Stratus’ role and authority over plaintiff’s performance of his injury-producing work. Pursuant to Labor Law § 240(1), owners and contractors are required to provide adequate safety devices – such as scaffolding or ladders – to afford proper protection against elevation-related hazards. To that end, the statute imposes on owners, contractors, and their agents a nondelegable duty that renders them liable regardless of whether they supervise or control the work. A subcontractor may be held liable where it was acting as the agent of the owner by virtue of it having been given the authority to supervise and control the injury-producing work. That there may be a general project manager, prime contractor or subcontractor is not dispositive on whether a defendant is an appropriate Labor Law defendant.
Labor Law § 200 and Common-Law Negligence (EDA)
The Third Department affirmed the trial court’s decision to deny dismissal of the Labor Law § 200 claims because an issue of fact exists as to the extent of Stratus’ control and supervision over plaintiff’s work. Stratus thus failed to meet its initial burden on summary judgment on either plaintiff's claims or the crossclaims.
Indemnity Issues in Labor Law (PCSM)
The Third Department affirmed the trial court’s denial of the branch of Stratus’ motion seeking a dismissal of the LLC’s and 7-Eleven’s crossclaims for indemnification and contribution. In reaching this decision, the Court noted that common law indemnification is only available where a party proves not only that it was not negligent, but also that the proposed indemnitor’s actual negligence contributed to the accident. Thus, in seeking to have these claims dismissed, the burden is on the party seeking dismissal to prove that it was free of negligence. The Court held that issues of fact exist as to the extent of Stratus' control and supervision over plaintiff's work which prevented a summary judgment determination as to these claims.
Curran v JJML, Inc.
July 25, 2025
Appellate Division, Fourth Department
Plaintiff slipped and fell on an exterior deck attached to commercial office space occupied by his employer, Elmer Davis and owned by the JJML defendants. The uncovered deck was attached to the second floor of the office occupied by Elmer Davis and was accessible by a door in the kitchenette area. Although there were other tenants in the building, the deck was used exclusively by employees of Elmer Davis, and personnel of the JJML defendants could not access the deck without going through Davis's office.
The accident occurred shortly after plaintiff arrived for work early one morning and noticed the roof was leaking, causing water to drip on to the floor in the kitchenette area. Suspecting that a tree limb or branch might have fallen on the roof and caused the leak, plaintiff stepped out on the deck to look at the roof. It was raining hard that morning, and plaintiff slipped and fell almost immediately after stepping onto the deck, sustaining injuries in the process. According to plaintiff, he slipped on a thin veneer of green moss or algae that had accumulated on the deck and created a dangerous condition when wet.
The trial court denied Davis’s motion in full and denied the JJML defendants’ motion except to grant summary judgment dismissing plaintiff’s Labor Law §§ 240(1) and 241(6) claims, leaving the common-law negligence and Labor Law § 200 claims.
Labor Law § 200 and Common-Law Negligence (EDA)
The Fourth Department affirmed the trial court’s decision to deny dismissal of the common-law negligence claim because the JJML defendants failed to establish as a matter of law that plaintiff's injuries were caused only by rainwater on the deck as opposed to accumulated moss or algae made more slippery by rain. The JJML defendants also failed to establish as a matter of law that they lacked constructive notice of the allegedly dangerous condition. The Court reversed the trial court’s denial of the motion to dismiss the Labor Law § 200 claim, however, finding that plaintiff was not hired to fix the JJML defendants’ roof and was not otherwise engaged in construction or manufacturing work at the time of the accident. Instead, he went to the office on the morning of his accident to perform "administrative tasks." This is one of the few distinctions between these oft-paired claims.
Indemnity Issues in Labor Law (PCSM)
The Fourth Department agreed with the JJML defendants that the trial court erred in denying that part of their motion for summary judgment on the contractual indemnification and modified the order accordingly. The Court pointed out that under the terms of the lease, the Davis defendants agreed to indemnify the JJML defendants for any claim that arose from “the conduct or management of [Davis’s] business . . . or from any act of negligence” by Davis or its agents “in or about the leased premises.” Thus, regardless of whether Davis was negligent, plaintiff, a Davis employee, slipped and fell into Davis’s office space. Accordingly, the Court held that the claim arose from the conduct of Davis’s business and that according to the terms of the lease, Davis was, indeed, obligated to defend and indemnify the JJML defendants in the instant action.
Parsons v County of Steuben
July 25, 2025
Appellate Division, Fourth Department
Plaintiff and his coworkers were employed by Mid-State and were cleaning up the worksite for the day by, among other things, taking down ladders. Two of plaintiff's coworkers were taking down a 40-foot extension ladder that was leaning against a wooden telephone pole. The first coworker untied the top and middle straps securing the ladder to the pole as he descended the ladder. The second coworker then retracted the ladder while the first coworker held the ladder. Either the first coworker holding the ladder or the ladder itself, or both, slipped on ice on the ground. The ladder fell, striking plaintiff, who was standing nearby ready to carry a different ladder away from the worksite. The trial court denied plaintiff’s motion for partial summary judgment and denied, in part, the cross-motions of the County, Motorola, and Mid-State seeking summary judgment.
Labor Law § 240(1) (MAS)
The Fourth Department unanimously affirmed the trial court’s decision, finding the ladder constituted a “falling object” that did not require securing for the purposes of the undertaking, and that securing it would have been contrary to the objectives of the work plan. Additionally, defendants submitted evidence that the straps had to be removed to retract the ladder and no protective devices could have been used to prevent the ladder from falling while it was being taken down. In opposition, the Court held that plaintiff failed to raise a triable issue of fact.
PRACTICE POINT: It would be illogical to require plaintiff’s coworkers to secure a ladder to a pole that they were removing from that pole. Although plaintiff’s expert stated that no mechanical means of securing the ladder to the pole were used at the time it fell, he did not opine that any such means should have been used or could have been used as the ladder was being taken down.
Labor Law § 241(6) (TJE)
The Fourth Department affirmed the trial court’s denial of the County, Motorola, and Mid-State motions for summary judgment seeking dismissal of the Labor Law §241(6) claim predicated on violations of Industrial Code §§ 23-1.7 (d) and 12 NYCRR 23-1.21 (b) (4) (ii). 12 NYCRR 23-1.7 (d) states that “[e]mployers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing." The Court found that the crushed gravel pad at the base of the telephone pole on which the ladder was situated and on which the workers were standing while setting up, using, and taking down the ladder constituted "the type of work surface enumerated" in the regulation.
12 NYCRR 23-1.21 (b) (4) (ii) states that "[a]ll ladder footings shall be firm. Slippery surfaces and insecure objects such as bricks and boxes shall not be used as ladder footings." The Court held that defendants failed to establish as a matter of law that they did not violate the regulation.
Labor Law § 200 and Common-Law Negligence (EDA)
The Fourth Department affirmed the trial court’s denial of the County’s motion to dismiss because the County did not meet its initial burden of establishing that it did not have actual or constructive notice of the dangerous condition. The Court, however agreed with Motorola that the trial court erred in denying its cross-motion seeking summary judgment dismissing that claim against it. The Court noted that plaintiff abandoned that claim against Motorola by not opposing that part of Motorola's cross-motion seeking that relief, and by not addressing it on appeal.
Indemnity Issues in Labor Law (PCSM)
The Fourth Department held that the trial court erred in denying that part of Motorola’s cross-motion seeking summary judgment dismissal of the County's crossclaims against it for common-law indemnification and contribution. The Court found that Motorola met its initial burden on its cross-motion of establishing that it was free of any negligence that contributed to the cause of plaintiff’s accident, and that the County did not raise an issue of fact in opposition. Thus, the common-law indemnification and contribution crossclaims should have been dismissed.
However, the Fourth Department held that the trial court properly denied that part of Motorola’s cross-motion seeking summary judgment dismissal of the County's crossclaim for contractual indemnification. Under the contract between the County and Motorola, Motorola agreed to indemnify and hold the County harmless from “any and all liability . . . which may accrue against [the County] to the extent it is caused by the negligence of Motorola, its subcontractors, or their employees or agents.” The Court held that the issue of fact as to whether plaintiff's injury was caused by the negligence of Mid-State, Motorola’s subcontractor, prevented a summary judgment dismissal of the County's crossclaim for contractual indemnification.
The Court also noted that Motorola’s argument on its cross-appeal that it was entitled to a conditional order of contractual indemnification, common-law indemnification, and contribution from Mid-State, was raised for the first time on appeal and thus was not properly before the Fourth Department.
New York Industrial Code Regulations (EDA)
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