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Volume XV, No. 12
Wednesday, November 4, 2026
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 Note from David R. Adams:
Do you have a situation? We love situations. Give us a call, send an email, drop by; we truly enjoy solving complex Labor Law and Risk Transfer issues.
November is here, and while it is going to be 73° this afternoon, it will also be dark soon after the sun sets at 5:03pm. Of course, it was 33° when I got up to walk the dogs just last week, that is just life in Buffalo.
Our case of the month for November is Laignelet v. City of New York where the improper response to a Notice to Admit almost created liability against a defendant who should have been dismissed from the case. In this month’s webinar, we will discuss the advantages and pitfalls associated with the use of and response to a Notice to Admit.
For more information and to register, click here.
In our photos for the month, we start with a job where the owner of a hotel decides that it wants to expand the entrance to their underground garage. They hire a company to enlarge the opening to allow taller vehicles. As a part of that job, the stone header over the prior door needs to be removed. As an employee of the company attempts to use a hammer drill to make a hole in the beam, allowing for a lifting lug to be inserted so the beam can be lowered to the ground, the beam shockingly collapses. The employee, now the newly minted plaintiff, falls to the ground and is injured. Valid § 240(1) claim?
Starting, as we always do, with the basics: the plaintiff is a valid plaintiff, as he is a person so employed; the defendant is the owner of commercial property; the plaintiff was engaged in construction or demolition (either will suffice); and the injury was caused by an elevation differential and the effects of gravity. The defendant will argue that the injury was caused when the beam fell, which was the intent of the work, and therefore no safety device could logically have been used to prevent the beam from falling as intended. This would fail as it was the plaintiff who fell along with the beam, not the beam that fell on the plaintiff. The plaintiff was working at a height with no safety device to prevent him from being injured if he fell, and thus § 240(1) was violated. Summary judgment for the plaintiff.
In our second photo this month, the owner of a business hired a painting company to paint the exterior of their business. The painter sent to do the job brought with him, in the company truck, various tools including a ladder which was tall enough to safely reach the tallest portion of the building. The painter was trained to always tie off the top of the ladder when using it and he dutifully followed that instruction. As he was almost done with the job he came to a section where the ladder was tall enough to easily reach the area in need of paint, but the surface was smooth and there was nowhere for the plaintiff to tie off the top of the ladder. The painter continued to paint without the top tied off as there was no place to do so, and, as one would expect in Labor Law Pointers, the bottom of the ladder slipped away from the building, slowly, gradually, and steadily. The painter was able to grab on to the surface of the building for a few seconds, as shown in the photograph, but eventually gravity won that contest, as it always does, and plaintiff fell and was injured when he, quickly, rapidly, and suddenly fell the remainder of the distance to the ground. § 240(1) case?
Once again, the prima facie case is made. The plaintiff is a person so employed; the defendant is the owner of commercial property; the overall job involved painting, a specifically enumerated activity; and the plaintiff was injured as a result of the effects of gravity and an elevation differential. The defendant will claim the sole proximate cause defense. The plaintiff would need to have been provided with an appropriate safety device, instructed to use it, and then either misused or failed to use it for no good reason. Addressing these elements one at a time: the plaintiff was provided a ladder which would reach where it was needed, and it was available, he had the rope of cord with which to tie the ladder off, which was also a safety device provided to the plaintiff. He was instructed to always use the safety devices and tie the ladder off. He did not do so and was thus injured in a fall. The problem is that the ladder and tie off were not an appropriate safety device where the ladder could not be tied off, and for the sole proximate cause defense to work, the plaintiff must be provided an adequate and available safety device. It is not enough to simply tell the plaintiff not to do the assigned work if the provided safety device is insufficient. In short, not only must he have the rope to tie off with, but he must be provided with something to tie the rope off to, just like a safety tether and lifeline are not adequate without a proper tie-off to clip to. This is changing, mostly in the Second Department, but it is still the law today. Summary judgment for the plaintiff is most likely.
Coincidentally as I finished up Labor Law Pointers this morning a swing stage appeared outside my window. No great story here but I took this photo out my office window as the swing stage moved past my window, so I had to include it. They are re-pointing the brick and replacing some bricks. Notice the worker in a harness and attached to a safety line separate from the swing stage. I wanted to discuss the elements that would make this a § 240(1) case. See below.
Pointing brick is an enumerated task under § 240(1), for that matter so is window washing on a commercial building. There are numerous cases where there are problems with a swing stage and a worker is injured. Remember that window washing on a private home would not be commercial and thus not qualify. The swing stage would be an appropriate safety device, but should it fail in some manner it would not be providing the necessary protection and thus summary judgment for the plaintiff.
That’s it for this month. Enjoy the fall, and we will see you next month. Remember that we are never more than a call or e-mail away; feel free to reach out with any questions or issues Labor Law or Risk Transfer related.
-David
Hurwitz Fine P.C.
The Liberty Building
424 Main Street, Suite 1300
Buffalo, New York 14202
Phone: 716.849.8900
Fax: 716.855.0874
Email: [email protected]
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Plaintiff fell from the sixth step of an “unsecured [eight]-foot A-frame ladder that suddenly moved" as he was removing plywood sheets from the ceiling above him. Plaintiff's testimony that he fell from the ladder after it was struck by a falling piece of plywood is uncontroverted. His coworker testified that Plaintiff was on the second step when the incident occurred. The Supreme Court denied plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim and his Labor Law § 241(6) claim premised on Industrial Code (12 NYCRR) § 23-2.2(a).
 Labor Law § 240(1) (JLD)
The First Department concluded that the plaintiff met his prima facie burden as to his 240(1) claim by submitting proof, including an expert affidavit, that he fell from an unsecured eight-foot A-frame ladder that suddenly moved. The Court concluded that Defendant's argument that plaintiff was the sole proximate cause of his own fall was unavailing. Even if plaintiff is negligent, it is "conceptually impossible" for a plaintiff's negligence to be the sole proximate cause when a Labor Law 240(1) violation is also a cause of the accident. Further, the court opined, plaintiff was not negligent because he followed his employer's instructions.
PRACTICE POINT:
It is critical to remember that an individual cannot be a sole proximate cause of his own injury when the evidence shows that at the time of injury, he was acting pursuant to the direction of his supervisor. A sole proximate cause defense requires that admissible proof is presented which shows (1) an adequate safety device was available, (2) the worker knew it was available and was expected to use it, (3) the worker chose not to use it for no good reason, and (4) the accident would not have occurred had the worker used the device.
 Labor Law § 241(6) (MRV)
The Court concluded the Labor Law 241(6) claim was academic in light of the court's findings on Labor Law 240(1).
Plaintiff, the supervising foreman, and four coworkers were tasked with lifting large metal beams from the ground to the top of a 14-foot-tall rolling tower used to build sidewalk sheds. To pass up the metal beams, plaintiff and a co-worker, Nelson stood on the ground; co-worker Bryne stood on the tower's intermediate seven-foot-high platform; and two coworkers stood at the top of the rolling tower. Plaintiff and Nelson's job was to lift the beam off the ground and into a vertical position before it was passed up to Bryne and the workers at the top. Plaintiff testified that when the first three beams were handed to Bryne, plaintiff continued lifting while Nelson stopped lifting and prepared the next one. Once the fourth beam was raised about one foot above the ground and Bryne had a secure grip on the beam, plaintiff instructed Nelson to let go and set up the next beam. Plaintiff testified that he injured his back when the beam, which was raised about 4½ feet above the ground, suddenly slipped from Bryne's hand and plaintiff wrapped his arms around the beam to prevent it from falling onto a pedestrian walkway.
The Supreme Court granted plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim and denied defendants' motion for summary judgment dismissing that claim.
Labor Law § 240(1) (JLD)
The First Department concluded that the lower court properly granted plaintiff's motion for partial summary judgement as to Labor Law 240(1), concluding that although plaintiff neither fell from a height nor was struck by a falling object, his injury was caused by his efforts to prevent the beam from falling. Defendants also failed to raise an issue of fact because the evidence does not establish that plaintiff went against company practice by instructing his co-worker Nelson to stop lifting once Byrne was holding the beam. The sole proximate cause affirmative defense fails.
PRACTICE POINT
A cause of action under Labor Law 240(1) will still exist when plaintiff is taking efforts to stop an object from falling, even if he is neither falling from a height or was struck by a falling object.
Plaintiff's fell from a plank that was erected atop a six-foot-high scaffold platform while laying CMU blocks in the upper area of a wall, when the scaffold moved and he lost his balance, causing him to fall approximately 11 to 12 feet to the concrete floor below. Plaintiff testified that there were no designated anchor points he could tie his harness off to, and consequently, his fall was not restrained. The Supreme Court granted plaintiff's motion for partial summary judgment on his Labor Law §§ 240(1) and 241(6) claims.
Labor Law § 240(1) (JLD)
The Appellate Court concluded that plaintiff met his prima facie burden on a motion for summary judgment under 240(1). The height from which plaintiff fell, and the lack of proper anchor points or guardrails on the scaffold, implicated the protections afforded under the Labor Law. Defendant's biomechanical expert report was speculative, as it disregarded the evidence in the record that plaintiff fell from a height and was injured. Further, the expert did not describe the methodology he used, nor did he identify biomechanical principles relied upon.
PRACTICE POINT:
To succeed in opposing a plaintiff’s motion for summary judgment, a defense expert report must establish its methodology and respond to the evidence in the record. When an expert’s ultimate assertions are speculative or unsupported by evidentiary foundation, they will be given no probative force.
Labor Law § 241(6) (MRV)
The Appellate Court concluded that plaintiff met his prima facie entitlement to summary judgment on his 241(6) claim and defendants failed to raise a triable issue in opposition.
Plaintiff commenced this action after suffering injuries on or about November 19, 2013, when, while crossing the street to deliver materials at a construction site, he was hit by an oncoming vehicle. Defendant Turner moved for summary judgment (1) dismissing the complaint because Turner is not a proper labor law defendant and owed no duty to plaintiff otherwise, or, in the alternative, (2) dismissing plaintiffs' claims under Labor Law 240 (1), and/or (3) dismissing plaintiffs' Labor Law 241 (6) claims because the Industrial Code sections plaintiff alleges were violated are inapplicable to the facts herein, and/or (4) dismissing plaintiffs' common law negligence and Labor Law 200 claims because Turner did not supervise, direct or control the means and methods of plaintiff's work nor did it create or have notice of any allegedly defective condition. Defendants New York University, NYU School of Medicine, NYU Hospitals Center, and NYU Langone Medical Center and plaintiff oppose, arguing substantially that Turner's motion is premature due to the early stages of discovery. The Court dismissed Plaintiff’s Labor Law §§ 240(1) and 241(6) claims and denied the motions dismissing the common law negligence and Labor Lw § 200 claims and found a question of fact as to whether Turner was a proper Labor Law defendant.
After its motion to reargue was denied, Turner subsequently sought leave to renew its prior motion for summary judgment pursuant to CPLR 2221 (e). Upon renewal, Turner would request an order, pursuant to CPLR 3212, granting summary judgment to Turner and dismissing plaintiff's Labor Law section 200 claims.
In the court's prior decision denying summary judgment to Turner, it held that Turner left the court "unclear as to what Turner's role was — if any — in controlling egress and ingress to the construction site and whether it took on a responsibility for providing safe passage within the broad ranging jobsite". Therefore, it was the court's view that "Turner has failed to tender sufficient evidence to demonstrate that there is an absence of material issues of fact with respect to Turner's potential liability for common negligence and/or under Labor Law 200". Now, following discovery and depositions, Turner moves to renew its motion for summary judgment and seeks dismissal of plaintiff's Labor Law 200 claims.
On June 9, 2025, the Court denied Turner’s Order to Show cause seeking leave to renew its motion for Summary judgment.
 Labor Law § 200 and Common-Law Negligence (PCSM):
First, the appellate division held that the lower court improperly denied Turner’s motion to renew. Secondly, based on new facts developed through court-ordered depositions together with Turner’s original arguments, the First Department granted Turner’s motion and dismissed plaintiff’s common law negligence and Labor Law 200. The Court did not specify which argument(s) it relied upon in granting that aspect of the motion. It appears that the court agreed that Turner was not a proper labor law defendant and owed no duty to plaintiff otherwise.
Plaintiff was injured while he was transporting over 300 pounds of construction material on an overloaded A-frame cart. According to plaintiff, the construction material and cart flipped over and fell on him, causing injuries to his neck and back. The Supreme Court granted plaintiff's motion for summary judgment on his Labor Law § 240(1) claim against defendants Chatsworth Builders LLC, West 207 Grocery Owners, LLC, and Inwood Lot 9 Development Associates LLC, and denied plaintiff's cross-motion to preclude nonparty witness statements offered by defendants.
Labor Law § 240(1) (JLD)
The First Department opined that Defendants raised a triable issue of fact as to whether plaintiff's accident occurred, or if it occurred, whether it occurred as plaintiff described and whether his injuries were causally related to the accident. Defendant submitted 17 non-party witness statements, all of whom denied witnessing or having contemporaneous knowledge of plaintiff's accident or plaintiff's injuries. Defendants also provided a biomechanical expert affirmation and three IME expert reports which opined that plaintiff did not experience the acute trauma that a heavy load falling on him would have caused. Defendants' evidence, taken together, is sufficient to raise an issue of fact precluding summary judgement.
PRACTICE POINT:
To defeat a plaintiff’s motion for summary judgment where there is a question as to the nature of the mechanism of injury, defendant can raise a triable issue of fact with witness testimony and expert reports which offer alternative theories of injury. However, it will be immaterial that the accident was unwitnessed if there is nothing in the record which contradicts plaintiff’s version of the accident or raises an issue as to credibility.
Plaintiff was employed by Mastercraft as a bricklayer/mason; plaintiff was on the 6th floor, which had no roof/ceiling, and he and his worker Nest were instructed by Rich and Howie to move beams by hand from a pile and to place them under the openings of cinder block where windows were going to be installed. The beams were slippery due to condensation and were about 400 pounds each. One beam slipped out of plaintiff's hands and fell approximately 8-10 inches onto his foot. Plaintiff was not provided any hoists, cranes, booms or any other safety device or equipment to help him move the beams. There was one pallet jack at the site, however, plaintiff was not offered to use one, and the only pallet jack at the site was being used for another task. Procida was the general contractor for the construction project. It hired Mastercraft to build a senior residence at the property. The Supreme Court denied defendant's motion for summary judgment dismissing plaintiff's common-law negligence and Labor Law §§ 200 and 240(1) claims and granted plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim.
Labor Law § 240(1) (JLD)
The Appellate Court concluded that the trial court should have denied plaintiff's motion for summary judgment on his 240(1) claim. While plaintiff established prima facie that he was injured due to a failure to provide adequate protection against an elevation differential risk, defendant raised an issue of fact by pointing to plaintiff's testimony that the accident was also caused by his foot slipping on a wet floor within a split second of the beam falling, and plaintiff admitted that he did not know what happened first. Because of these issues of fact, the trial court should have denied plaintiff's motion for summary judgment as to the 240(1) claim.
PRACTICE POINT:
To support a motion for summary judgment on Labor Law 240(1), defense counsel should always ask at a plaintiff’s deposition about the conditions of the area around where the incident occurred. If it can be established that plaintiff’s injuries were not the direct consequence of an elevation differential, plaintiff’s injuries are not subject to 240(1).
Labor Law § 200 and Common-Law Negligence (PCSM)
The First Department affirmed the denial of Procida's motion for summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims, finding that Procida failed to establish that it lacked supervisory control over plaintiff's work. Although Procida relied on testimony suggesting that plaintiff was supervised by Master Craft personnel, the testimony was ambiguous, and Procida failed to submit an affidavit from its senior project manager, who was allegedly present at the site multiple times daily. The Court held that Procida therefore failed to establish, prima facie, that it did not supervise plaintiff's work.
Plaintiff was using stilts to apply compound to the walls and ceiling of a bathroom on the sixth floor of a new building under construction. While plaintiff was working, his stilts slipped on plastic floor covering, causing him to fall backwards and sustain multiple injuries. Tinton owned the construction project and had retained Supreme to excavate and install the building's foundation and superstructure. The Supreme Court denied defendant Supreme Builders, Corp.'s motion for summary judgment dismissing the action as against it on the ground that it is not a proper Labor Law defendant, along with all cross-claims against it. The Supreme Court denied defendant Supreme Builders, Corp.'s motion for summary judgment dismissing the action as against it on the ground that it is not a proper Labor Law defendant, along with all cross-claims against it.
Labor Law § 200 and Common-Law Negligence (PCSM)
The First Department affirmed the dismissal of plaintiff's Labor Law § 200 and common-law negligence claims against Supreme Builders, Corp., finding that Supreme's status as a potential general contractor did not establish liability absent evidence that it exercised supervisory control over plaintiff's work.
Plaintiff was injured while working on stilts to apply compound to a bathroom ceiling when the stilts slipped on plastic floor covering, causing him to fall. Although evidence raised an issue of fact as to whether Supreme functioned as the general contractor, Supreme had obtained dismissal of plaintiff's Labor Law § 200 and common-law negligence claims that were based on allegations that it supervised the worksite. Accordingly, the Court held that Supreme could not be held vicariously liable for plaintiff's injuries, even if it was ultimately determined to be the general contractor.
Indemnity Issues in Labor Law (PCSM)
The First Department modified the order to dismiss Tinton Realty Group LLC's cross-claims for common-law indemnification and contribution against Supreme Builders, Corp., finding that Supreme could not be held vicariously liable for plaintiff's injuries where plaintiff's Labor Law § 200 and common-law negligence claims had been dismissed against it. However, the Court affirmed the denial of Supreme's motion for summary judgment dismissing Tinton's contractual indemnification and breach of contract for failure to procure insurance claims. The parties' cost sheet contained an ambiguous $40,000 insurance provision, and Tinton's principal testified that Supreme was required to procure insurance naming Tinton as an additional insured. This evidence raised triable issues concerning whether Supreme had agreed to indemnify Tinton and whether it breached its insurance procurement obligations.
The plaintiff was injured while working at a construction site on a property owned by defendant Hispanic Society of America (HSA). Defendant Westerman was the general contractor on a roofing project at the site. Plaintiff was an employee of a plumbing contractor, Maxwell involved in a separate construction project, to convert the building from oil to gas. On the day of the accident the plaintiff was at the location to pick up some materials which had been left behind at the job site. Plaintiff was working with a driver from Maxwell. To retrieve a pipe from the sidewalk well, plaintiff and the driver were setting up a winch to lift the pipe. To do this, the plaintiff placed a piece of wood onto an existing scaffold at the building. The plaintiff and/or the driver were then going to attach the winch to the wood. While trying to adjust the piece of wood, the plaintiff leaned over the railing which separated the sidewalk well from the sidewalk and he slipped, fell over the railing, and fell onto a pipe and valves on an elevated platform within the sidewalk well.
The Supreme Court denied plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim as against HSA and denied HSA's motion for summary judgment dismissing that claim and the Labor Law § 200 and common-law negligence claims as against it.
Labor Law § 240(1) (JLD)
The Appellate Division reversed the trial court and concluded that plaintiff demonstrated a prima facie entitlement to partial summary judgment on Labor Law 240(1) as he was instructed to work near a barrier above the underground entranceway and was required to lean over the barrier to perform his work. Even if the plaintiff was working on the ground level, he was working on an elevated work site, and was not provided with the adequate safety devices to prevent him from falling over the barrier. Defendants failed to raise an issue of fact as to whether the plaintiff was the sole proximate cause of his accident.
PRACTICE POINT:
An elevation related differential can exist, even when plaintiff is working on the ground level.
Labor Law § 200 and Common-Law Negligence (PCSM)
The appellate division granted plaintiff’s Labor Law 240(1) and subsequently stated that there was no longer any reason to address the Labor Law 200 and common law negligence claims. The lower court’s decision to deny dismissal of those claims was left undisturbed.
Plaintiff, who worked for a subcontractor of Prestige Construction, testified that he felt an object strike him in the back, causing him to fall, and that the item seen on the ground in a video recorded by his foreman shortly after the accident was a beam. Further, plaintiff's foreman testified that one of plaintiff's coworkers, who worked for the same subcontractor as plaintiff, stated that he accidentally hit a beam as he was passing a form on the floor above plaintiff, causing the beam to fall. The foreman also testified that proper safety practices required either removing or securing the beam. The Supreme Court granted plaintiff's motion for summary judgment on his Labor Law § 240(1) claim as against defendants 5462th Realty LLC and Prestige Construction NY LLC (together, defendants), and denied defendants' motion for summary judgment dismissing the Labor Law §§ 240(1) and the Labor Law § 241(6) claim premised on Industrial Code (12 NYCRR) § 23-1.7(a)(1) as against them.
Labor Law § 240(1) (JLD)
The Appellate Division affirmed the trial court's finding of summary judgment in favor of plaintiff on 240(1), concluding that plaintiff met his prima facie burden by submitting deposition testimony showing that he was struck by a falling object within the hazards contemplated by 240(1), and that defendants failed to provide an appropriate safety device. Plaintiff's foreman testified that a co-worker stated that he accidentally hit a beam as he was passing a form on the floor above plaintiff, causing the beam to fall. That evidence is sufficient to establish that plaintiff was hit by a falling beam. The foreman also testified that proper safety practices required either removing or securing the beam, establishing that the beam was an object in need of securing under the statute. Defendants, in response, failed to raise a triable issue of fact. It is not dispositive that plaintiff did not know exactly what caused the beam to fall, and the absence of an expert affidavit identifying an inadequate or missing safety device is not fatal to plaintiff's motion.
PRACTICE POINT:
To succeed in defeating summary judgment, it is essential to point to credible evidence suggesting that there are differing versions of the accident, one under which defendants would be liable and another under which they would not.
Labor Law § 241(6) (MRV)
The Court concluded the Labor Law 241(6) claim was academic in light of the court's findings on Labor Law 240(1).
Plaintiff was injured when he fell from the bottom of a temporary staircase on the 8th floor while engaged in construction work at a building owned by defendant Hudson Square and controlled by defendant Lendlease, the general contractor of the construction project. Plaintiff testified that as he was stepping off the last step of the staircase his right foot slipped on ice on the floor, which was exposed to the elements because the building's walls had not yet been erected, and his left foot slipped on ice on the last step of the staircase, causing him to fall. While defendants argue that ice was not present on the floor or the last step, Christian Saguay, Lendlease’s (site-safety manager, acknowledged at his deposition that "it looks like it's just water". Furthermore, the unrebutted opinion of plaintiff's expert engineer, was "that the staircase was a 'safety device' covered by the statute because it was in a temporary condition, rather than a permanent condition, at the time of the accident". Defendants further argued that the staircase was permanent and not temporary and, as such, § 240 (1) did not apply. However, plaintiff's deposition testimony, his affirmation, and the properly authenticated photographs of the staircase, which plaintiff submitted as evidence, clearly showed that it was at least in a temporary, unfinished condition at the time of the accident.
The Supreme court granted Plaintiff’s motions for summary judgment on the issue of liability on his Labor Law § 240 (1) claim, his § 241 (6) claim predicated upon violations of Industrial Code (12 NYCRR) §§ 23-1.7 (d) and (f), and his Labor Law § 200, and common-law negligence claims, and denied defendants’ cross-motion for summary judgment on the 240(1) claim.
Labor Law § 240(1) (JLD)
The Appellate Division concluded that the trial court should have denied plaintiff's motion for summary judgment on his Labor Law 240(1) cause of action. While the staircase did fall under Labor Law 240(1) as a safety device because it was temporarily erected for the workers, defendants raised an issue of fact through the site safety manager's testimony that the staircase was permanent, albeit unfinished, at the time of the accident. Plaintiff failed to establish that the staircase was the sole means of access. The site safety manager's affidavit stated there were additional staircases that plaintiff could have used as well as other hoists in operation at the site at the time of the accident.
PRACTICE POINT:
Remember that a staircase is a safety device for the purposes of Labor Law 240(1) only if it is the sole means of access to and from the work area.
Labor Law § 241(6) (MRV)
The First Department held that the lower court properly granted plaintiff’s motion for summary judgment on his 241(6) cause of action as predicated on Industrial Code 23-1.7(d) and (f). Plaintiff established that defendants failed to mitigate the slippery conditions that existed on the stairs at the time of the accident through photographs of the staircase on the date of the accident which showed ice or water on the stairs, as well as testimony of the site safety manager that there was no records they had salted the stairs on the date of the accident, despite it being their policy to salt icy areas.
Plaintiff alleges he was injured when he was working at a construction site located in Brooklyn. Plaintiff was tasked with cleaning the first floor of a building. He slipped and fell on a sheet of metal covered in construction debris while he was carrying a cabinet from one end of the floor to the other.
Plaintiff commenced an action to recover damages for personal injuries from 672 Parkside, the owner of the construction site, and Townhouse Builders, Inc, the general contractor for common law negligence and violations of Labor Law 200 and 241(6). 672 Parkside and Townhouse Builders moved for summary judgment dismissing the causes of action alleging common law negligence and violations of Labor Law 200 and 241(6). The Supreme Court granted defendants’ motion. The plaintiff moved for leave to renew his opposition to defendants’ motion seeking dismissal of the 241(6) claim. The Court granted leave to renew and, upon renewal, adhered to the prior determination.
Labor Law § 241(6) (MRV)
The Second Department held that the lower court properly adhered to the prior determination granting the branch of defendants’ motion that was for summary judgment dismissing the action alleging a violation of Labor Law 241(6) predicated on violations of 12 NYCRR 23-1.7(d) and (e)(2). The defendants established, prima facie, that the construction debris that covered the sheet metal upon which plaintiff allegedly slipped was an integral part of the work he was performing. Plaintiff failed to raise a triable issue in opposition.
Labor Law § 200 and Common-Law Negligence (PCSM)
The Second Department affirmed the dismissal of plaintiff's Labor Law § 200 and common-law negligence claims against the property owner and general contractor, finding that the alleged accident arose from a condition inherent in plaintiff's assigned work. Plaintiff was injured while cleaning the first floor of a construction site when he allegedly slipped on a sheet of metal covered with construction debris while carrying a cabinet. The defendants established that plaintiff's job responsibilities included clearing construction debris from the area where the accident occurred and that his injuries allegedly resulted from the normal course of performing that work. The Court held that owners and general contractors are not required to protect workers from hazards that are inherent in the work they are performing or conditions they are specifically hired to address. Plaintiff failed to raise a triable issue of fact in opposition. Accordingly, the Court affirmed summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims.
Plaintiff alleges he was injured while performing construction work on a premises owned by defendant 211 Schermerhorn Development, LLC. Defendant Oestreicher Construction Corporation acted as the general contractor on the project and hired plaintiff’s employer, Logozzo Bros. Construction Corp. as a subcontractor. Plaintiff alleges he was drilling holes into plywood at the time of the accident when a machine fell on him from above, causing the drill to jam and injure one of his hands.
Plaintiff commenced this action against the defendants to recover damages for personal injuries asserting causes of action for common law negligence and violations of Labor Law 200, 240(1), and 241(6). Logozzo moved for summary judgment dismissing the 241(6) claim. Defendants cross-moved for summary judgment dismissing the complaint. Plaintiff cross-moved for leave to amend the bill of particulars to include violations of additional Industrial Codes. The Court denied the plaintiff’s cross-motion for leave to amend the bill of particulars and granted that branch of the defendants’ cross-motion for summary judgment dismissing the complaint. Plaintiff appeals.
 Labor Law § 240(1) (RHF)
The Second Department denied motions brought on behalf of the owner (211 Schermerhorn) and general contractor (Oestreicher Construction) seeking dismissal of plaintiff’s claims for common-law negligence and violations of Labor Law §§ 200 and 240(1). The denial of those portions of the defendant’s motion was based on the fact that the motions were filed more than 120 days after the filing of plaintiff’s Note of Issue. The court did not reach the merits of arguments made relative to those claims. This was a procedural denial. The court explained that: "Absent a 'satisfactory explanation for the untimeliness,' constituting good cause for the delay, an untimely summary judgment motion must be denied without consideration of the merits" (Gomez v Tilden Estates, LLC, 241 AD3d 791, 793, quoting Brill v City of New York, 2 NY3d at 652).
PRACTICE POINT:
The lower court granted the motion dismissing plaintiff’s Labor Law §240(1) claim, however, due to a lack of justification for missing the 120 deadline, the appellate court reversed the lower court’s decision which included the rare dismissal of the §240(1) claim. Of note, the Second Department affirmed the dismissal of the §241(6) cause of action against the owner and general contractor because their rationale for dismissal mirrored the arguments set forth in the motion by the third-party defendant (employer), which was timely filed. The arguments regarding §241(6) were “nearly identical” and therefore properly before the court. The third-party defendant did not make §240(1) arguments so there was no viable claim that the defendant third-party plaintiff’s arguments were nearly identical and therefore properly before the court.
The practice point here is to be mindful of the deadlines in place for the filing of the note of issue (CPLR §3212(a)). The Court has discretion to shorten the statutory 120-day period as long is the court’s deadline is not less than 30 days from the filing of the note of issue. Wittenberg v Long Is. Power Auth., 225 AD3d 730, 732. Here, reasons for the delay in filing were not articulated.
Labor Law § 241(6) (MRV)
The Court properly considered the branch of defendants’ motion seeking dismissal of defendants’ cross-motion for summary judgment dismissing the 241(6) cause of action since Logozzo’s motion raised nearly identical issues. The plaintiff failed to articulate any basis to disturb the lower court’s decision to grant defendants’ cross-motion to dismiss the 241(6) claim.
Labor Law § 200 and Common-Law Negligence (PCSM)
The court did not reach the merits of defendants’ and third-party plaintiff’s common-law negligence and Labor Law 200 arguments. The motion seeking dismissal of those claims was deemed to be untimely.
Plaintiff commenced this action against defendant alleging violations of Labor Law 200, 240(1), and 241(6) along with common law negligence after plaintiff fell from a ladder while working inside a building.
The facts of the case are quite intricate. Prior to commencing this action, Plaintiff commenced a proceeding on or about August 9, 2019 in the New York State Court of Claims for permission to file a late notice of claim upon the State of New York, alleging that the State was the owner and responsible party for the subject premises. The motion was denied by order issued on January 21, 2020 for Plaintiff's failure to specify which building his accident occurred in. A second motion was filed for the same relief on or about June 29, 2020. The application was denied by order issued on November 20, 2020. Similarly, the Court found that Plaintiff, who had narrowed down the place of accident to one of two buildings, failed to set forth the essential facts constituting the claim by failing to specify what building the accident occurred in. The second denial was appealed to the Appellate Division, Second Department. The Second Department affirmed the Court of Claims denial (see Laignelet v. State of New York, 205 A.D.3d 795 [2d Dept. 2022]).
In this action, the notice of claim and summons and complaint provide that Plaintiff's accident occurred in the first-floor storage room located at 79-25 Winchester Boulevard, and similarly to the Court of Claims proceeding, does not specify which building. Plaintiff served a notice to admit on the City on or about February 1, 2020, asking the City to admit ownership of the property, specifically ownership of "a building or structure located at 79-25 Winchester Blvd..." based on an attached deed. On March 10, 2020, the City responded, denying knowledge or information sufficient to form a belief as to the truth of the matters asserted. Subsequently, the Plaintiff filed a motion requesting that this Court deem the allegations as admitted on the grounds that the City's response was improper. The motion was denied by this Court by order issued September 22, 2020. Thereafter, the City served an amended response, denying the allegations in the notice to admit. On August 16, 2021, Plaintiff served a letter on the City, rejecting the amended response to the notice to admit.
Per the City, the deed attached to the notice to admit represented a transfer of properties from the School Construction Authority to the City of New York solely for 76-10 and 74-20 Commonwealth Boulevard, along with partial transfers for 80-45 and 78-70 Winchester Boulevard, but not for the relevant location where Plaintiff fell, which is 79-25 Winchester Boulevard. However, the deed did ultimately contain evidence of several City-owned or partially City-owned lots at or near the relevant location. Prior to interposing the first response to the notice to admit, the City was unable to obtain the deed due to the COVID-19 pandemic. At some point, Frank Engoran, Principal Title Examiner for the New York City Law Department, conducted a search for the pertinent records, and the City served its amended response shortly thereafter. The amended response denied the allegations contained in Plaintiff's notice to admit and stated that the annexed deed demonstrates that the premises is State-owned rather than City-owned. Per the affidavit of Engoron, there are some portions of the relevant premises which are City owned, but those portions are not inclusive of the location where Plaintiff's accident occurred.
As noted, Defendant moved for leave to amend its response to the plaintiff’s notice to admit and for summary judgment dismissing the complaint. The Supreme Court granted defendant’s motion and plaintiff appealed.
Labor Law § 240(1) (RHF)
While the Second Department’s decision does not include many facts, it is easily discernable that the moving defendant was able to establish, prima facie, that it did not owe a duty of care to the plaintiff because it did not own, occupy, control, or make a special use of the building where the accident occurred (see Acevedo v Hope Gardens I, LLC, 226 AD3d 732. Labor Law § 240(1) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites. Here, it is evident that the defendant established that they were not the owner or general contractor.
PRACTICE POINT:
The potential and unnecessary pitfall in this case was the fact that early on the defendant did not properly respond to a CPLR §3123(a) Notice to Admit. Plaintiff’s Notice to Admit sought to establish that the defendant was the owner of the subject property. The defendant improperly responded to the Notice to Admit “denying knowledge or information sufficient to form a belief” as to ownership. Improper responses to a Notice to Admit are usually deemed to be admissions. Here the defendant was permitted to amend its response because the Notice to Admit was improper in the first place.
Labor Law § 241(6) (MRV)
Defendant established its prima facie entitlement to judgment as a matter of law dismissing the causes of action to recover damages for violations of Labor Law 241(6) by demonstrating that it did not own, occupy, control, or manage the subject property. Plaintiff failed to raise a triable issue in opposition.
Labor Law § 200 and Common-Law Negligence (PCSM)
The common-law negligence and Labor Law 200 claims were dismissed after the defendant came forward with proof that it did not owe a duty to the plaintiff since they did not own, occupy, control, or make special use of the building where the accident took place.
Plaintiff alleges he was injured while working as a mason for the third-party defendant GMJ Contracting Corp. on a construction site owned, developed, or managed by third-party plaintiffs, Board of Managers of the NOMA Condominium, NOMA Condominium, Pater Realty Company, Leading Builders Group, LLC, 846 6th Ave Venture, LLC, Alchemy 6th Avenue, LLC, and Alchemy Properties, Inc. Plaintiff was standing on the ground passing concrete blocks by hand up to a coworker standing on a scaffold when a stack of three concrete blocks fell from the corner of the scaffold onto the plaintiff’s head, back, and neck.
Plaintiff commenced actions alleging violations of Labor Law 240(1) and 241(6). Defendants commenced a third-party action against GMJ. Plaintiff moved for summary judgment on 240(1). Defendants cross-moved seeking dismissal of plaintiff’s 240(1) and 241(6) claims and on the third-party complaint. The Supreme Court granted plaintiff’s motion on 240(1) and denied defendants’ motion in its entirety. Defendants appeal.
Labor Law § 240(1) (RHF):
The Second Department affirmed the lower court’s order granting summary judgment to the plaintiff after a stack of three (3) bricks fell from a scaffold striking plaintiff and causing injuries. The Court rejected defendants’ contention’s that plaintiff’s action were the sole proximate cause of the accident.
PRACTICE POINT:
It is important to keep in mind that falling object cases have the same §240(1) ramifications as falling worker cases. Here, the Court found that while plaintiff was standing at ground level, the bricks were positioned on a scaffold and should have been “secured”.
Labor Law § 241(6) (MRV)
Plaintiff’s 241(6) claim was predicated upon an alleged violation of 12 NYCRR 23-2.1(a)(2) which provided that “[m]aterial and equipment shall not be placed or stored so close to any edge of a floor, platform or scaffold as to endanger any person beneath such edge.” Triable issues of fact exists as to whether there was a violation of 12 NYCRR 23-2.1(a)(2) and whether such violation was a proximate cause of the accident. Therefore, the Supreme Court properly denied that portion of defendants’ cross-motion for summary judgment dismissing the 241(6) cause of action.
Indemnity Issues in Labor Law (PCSM)
The Second Department affirmed the denial of the defendants' motion for summary judgment on their third-party claim for common-law indemnification against GMJ Contracting Corp., finding that the defendants failed to establish that GMJ exclusively supervised and controlled plaintiff's worksite.
Plaintiff allegedly sustained personal injuries while working at a building owned by defendant R.R. 590 Oak Family Limited Partnership that was undergoing renovations overseen by general contractor, defendant Almas Construction. Plaintiff was employed by third-party defendant Clearview Plate Glass Co., Inc. Plaintiff was in the process of loading a plate of glass onto a truck when the top of the plate of glass broke off and fell onto him, cutting his hands. Plaintiff commenced this action to recover damages for a violation of Labor Law 240(1). The defendants moved for summary judgment seeking dismissal of plaintiff’s 240(1) claims. Plaintiff cross-moved. The Supreme Court granted defendants’ motion and denied plaintiff’s motion.
Labor Law § 240(1) (RHF)
Dismissal of plaintiff’s §240(1) claim was affirmed by the appellate division. In the context of falling object cases, the court pointed out that §240(1) 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 (see Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267-268; Flores v Fort Green Homes, LLC, 227 AD3d 672, 673). A plaintiff must show that the object fell while being hoisted or secured because of the absence of a safety device of the kind enumerated in the statute. The defendants were able to demonstrate that the accident was not the result of an elevation-related hazard or gravity-related risk encompassed by Labor Law §240(1) (see Chuqui v Amna, LLC, 203 AD3d at 1021) and, in any event, that the plaintiff's injury was not caused by the lack or failure of a device prescribed by Labor Law §240(1) (see Mendez v Jackson Dev. Group, Ltd., 99 AD3d 677, 678).
PRACTICE POINT:
When formulating our arguments involving this plaintiff-friendly statute we need to be mindful of helpful language that is available. For instance, when the applicability of the statute is in question, it remains critical to point out that "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" (Chuqui v Amna, LLC, 203 AD3d 1018, 1020. Moreover, as the second department referenced in this case, when evaluating the applicability of §240(1) “the single decisive question is whether the plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” (see Kelly v RBSL Realty, LLC, 244 AD3d 1086, 1087. Here, plaintiff was not entitled to the extraordinary protections of 240(1).
Plaintiff commenced this action to recover damages for personal injuries he allegedly sustained when he was struck by loose sheets of plywood. During discovery, the plaintiff moved for leave to amend the complaint to add causes of action alleging violations of Labor Law 200 and 240(1). The Supreme Court denied plaintiff’s motion.
Labor Law § 240(1) (RHF)
Plaintiff’s motion to add a 240(1) cause of action by way of amendment to the original pleadings was denied because the new claim was entirely devoid of merit. Labow Law §240(1) protects workers who are engaged in “the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure" (id.; see Martinez v City of New York, 93 NY2d 322, 326). Plaintiff’s own testimony confirmed that he was a porter who was engaged in routine maintenance.
PRACTICE POINT:
It is important to elicit details of a plaintiff’s employment status and the details of his assigned work. The mere fact that construction work may have been taking place at the time of the accident is insufficient standing alone to trigger the protections of the statute. A thorough deposition regarding the work being performed is essential to demonstrate entitlement to summary judgment; and equally necessary when trying to establish a question of fact sufficient to defeat a plaintiff’s motion for summary judgment under §240(1).
Labor Law § 200 and Common-Law Negligence (PCSM)
The Second Department determined that the plaintiff’s Labor Law § 200 claim was not palpably insufficient or patently devoid of merit, emphasizing that Labor Law § 200 codifies an owner's or general contractor's common-law duty to provide a safe workplace and is not limited to construction-related activities. Accordingly, the Court held that the plaintiff should be permitted to amend his complaint to assert Labor Law § 200 and common-law workplace negligence claims.
Defendants owned a fire station located in Brooklyn that was undergoing renovation. Plaintiff was employed by a subcontractor to install air conditioning units at the fire station. Plaintiff was allegedly injured when he fell backwards as a ladder he was climbing became unbolted from a wall. Plaintiff commenced this action against defendants alleging violations of Labor Law §240(1), § 241(6), and § 200. Plaintiff moved for summary judgment on the 240(1) claim. Defendants moved for summary judgment seeking dismissal of the complaint.
The Supreme Court granted plaintiff motion for summary judgment on liability pursuant to 240(1) and denied those portions of defendants’ motion for summary judgment on 200 and 240(1). The Court also denied defendants’ motion on 241(6) predicated on violations of 12 NYCRR 23-1.2(b)(1) and (3). The defendants appealed.
Labor Law § 240(1) (RHF):
The Appellate Division affirmed the lower court order granting summary judgment to plaintiff pursuant to § 240(1). The second department noted that "[W]here a ladder slides, shifts, tips over, or otherwise collapses for no apparent reason, the plaintiff has established a violation" (Roasrio v Horizon Networks, Inc., 240 AD3d 537, 539.)
The Court rejected defendants’ sole proximate cause arguments and was unpersuaded by evidence that plaintiff had used the ladder without issue earlier in the day.
PRACTICE POINT:
Often, defendants are faced with unfavorable facts when defending 240(1) claims. It is difficult to successfully opposes a plaintiff’s § 240(1) summary judgment motion on “sole proximate cause” grounds. In order to prevail on sole proximate cause (“recalcitrant worker”) arguments, the successful litigant must establish all of the following: that plaintiff "(1) had adequate safety devices available, (2) knew both that the safety devices were available and that [he or she was] expected to use them, (3) chose for no good reason not to do so, and (4) would not have been injured had they not made that choice" (Iannaccone v United Natural Foods, Inc., 219 AD3d at 820.
Labor Law § 241(6) (MRV)
The Supreme Court properly denied defendants’ motion for summary judgment dismissing the 241(6) claim predicated on violations of 12 NYCRR 23-1.21(b)(1) and (3). Defendants failed to establish that 12 NYCRR 23-1.21(b)(1) and (3) were inapplicable to the circumstances of this case. Since the defendants failed to make a prima facie showing, that branch of their motion which was for summary judgment on 241(6) was properly denied.
Labor Law § 200 and Common-Law Negligence (PCSM)
The Second Department affirmed the denial of the City of New York and New York City Fire Department's motion for summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims, finding that the defendants failed to eliminate triable issues concerning their control over the worksite and responsibility for the alleged dangerous condition.
Plaintiff, a subcontractor's employee installing air conditioning units at a fire station undergoing renovation, was injured when an exterior ladder he was climbing suddenly became unbolted from the wall, causing him to fall. The Court reiterated that liability under Labor Law § 200 and common-law negligence may arise where an owner or general contractor controls the worksite and either creates a dangerous condition or fails to remedy it despite actual or constructive notice. The defendants failed to establish, prima facie, that they lacked control over the worksite, did not create the condition, or lacked notice of the alleged defect. Accordingly, the Court held that summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims was properly denied.
Plaintiff was injured when he was struck in the head by a falling piece of plywood while disassembling concrete forms at a construction site. The premises was owned by Cascade, which had retained Empire as the general contractor. Empire had subcontracted with the plaintiff's employer, Capital, to do structural concrete work at the premises. According to the plaintiff's deposition testimony, he was "stripping" the first floor of the premises. To complete the assigned work, the plaintiff and a coworker were removing posts in order to allow another coworker to bring down plywood from the ceiling level. The coworker removing the plywood was using an electric scaffold and, in order to lower the plywood, the coworker "needed to ... grab [the plywood] and lower it onto the scaffold" and then bring the scaffold down. Plaintiff and his coworker "removed a post," but the coworker on the electric scaffold allegedly "did not hold onto the wood" and the plywood fell, striking plaintiff on the head.
The Plaintiff brought an action for personal injuries alleging a violation of Labor Law 240(1). Plaintiff then moved for summary judgment on liability. The Court denied the motion and plaintiff appealed.
Labor Law § 240(1) (RHF):
Plaintiff initially established prima facie entitlement to judgment as a matter of law pursuant to § 240(1). However, the appellate division agreed with the trial court and affirmed the denial of plaintiff’s motion for summary judgment on the grounds that the defendants raised a triable issue of fact as to whether the plywood was an object that did not require securing (see Roberts v General Elec. Co., 97 NY2d 737, 738.)
PRACTICE POINT:
The decision was devoid of any factual recitation as to why the plywood did not need to be secured. In this case, according to the lower court’s Decision and Order, the defendants argued that there was a question of fact as to whether the plywood being removed was an object that required securing during the removal process. The lower court’s rationale is found in the link below:
https://iapps.courts.state.ny.us/nyscef/ViewDocument?docIndex=/89upMZ_PLUS_ayx/5xXC5LzZkA==
Plaintiff alleges he was injured at a construction site in Manhattan when a post that was approximately 10 feet long “dropped” and struck him. Plaintiff commenced this action to recover damages for personal injuries against defendants Efin Management Corp. and Sheng Sheng Construction, general contractors for the project, and HW Manhattan One, LLC, owner of the premises alleging a violation of Labor Law 240(1). Plaintiff moved for summary judgment on liability. The Supreme Court granted plaintiff’s motion and defendants’ appeal.
Labor Law § 240(1) (RHF):
The Second Department affirmed the lower court’s order which granted plaintiff’s §240(1) motion. In this falling object case, defense witness testimony that the subject post should have been secured and that the post could not have fallen if the post had been properly secured was enough to establish liability even though the post was not being hoisted secured at the time of the accident. The court pointed out that liability may be imposed where an object or material that fell, causing injury, was a load that required securing for the purposes of the undertaking at the time it fell" (Hensel v Aviator FSC, Inc., 198 AD3d 884, 887. Here, the uncontroverted proof was that the post should have been secured at time it fell.
PRACTICE POINT:
A plaintiff is not required to present evidence as to which particular safety devices would have prevented the injury; the risk requiring a safety device must be a foreseeable risk inherent in the work (see Carlton v City of New York, 161 AD3d 930, 932.
Plaintiff was employed by the third-party defendant, Manhattan Concrete, Inc., and was performing work at a construction project in Brooklyn. Plaintiff and his coworkers were building walls on the seventh floor of the project, and his coworkers were passing plywood forms from the sixth floor to where the plaintiff was located on the seventh floor. Plaintiff alleges he was injured while carrying one of the pieces of plywood through an open area on the seventh floor to the location where the walls were being assembled when his left foot twisted after stepping into a hole that had been covered by a thin layer of cement. The hole had been left in the floor to create an opening for future plumbing and electrical installations.
Plaintiff commenced this action to recover damages for personal injuries against the defendants for violations of Labor Law 200 and 241(6). The defendants filed a third-party complaint against Manhattan Concrete for contractual indemnification. Plaintiff moved for summary judgment on common law negligence and violations of Labor Law 200 and 241(6). The defendants moved for summary judgment dismissing the complaint and for contractual indemnification on the third-party action. Plaintiff moved to amend his bill of particulars to alleged violations of an additional Industrial Code. The Court denied plaintiff’s motion to amend and for summary judgment on common law negligence and violations of Labor Law 200 and 241(6). The Court granted defendants motion and denied the motion for contractual indemnification as academic. The plaintiff appeals and the defendants cross-appeal.
Labor Law § 241(6) (MRV)
The Supreme Court properly concluded that 12 NYCRR 23-1.7 (e)(1) was not applicable to the facts of this case and the plaintiff’s deposition testimony demonstrated that the area where the fall occurred did not constitute a passageway as contemplated by the provision. Additionally, 12 NYCRR 23-1.7(e)(2) did not apply to the facts of this case because the hole and cement over which plaintiff fell were not “debris” but rather had been intentionally installed and were and integral part of what was being constructed. The Supreme Court properly denied the plaintiff’s separate motions for leave to amend the bills of particulars and properly granted defendants’ motion on 241(6).
Labor Law § 200 and Common-Law Negligence (PCSM)
The Appellate Division reversed the lower court’s decision which granted defendants third-party plaintiff’s motion seeking dismissal of Labor Law 200 and common-law negligence claims. With respect to Labor Law 200 claims, the court pointed out that claims fall under two broad categories: namely, (1) those where workers are injured as a result of dangerous or defective premises conditions at a work site, and (2) those involving the manner in which the work is performed (Ortega v Puccia, 57 AD3d 54, 61). In this case, the defendants failed to address both categories. By addressing just one of the two categories, the defendants failed to eliminate triable issues of fact as to whether they had authority to exercise supervision and control over the work.
Indemnity Issues in Labor Law (PCSM)
The Second Department held that the defendants’ motion for summary judgment on their third-party claim for contractual indemnification was not academic, despite the dismissal of certain claims at the trial level. However, the court denied the motion on the merits, concluding that the defendants were not entitled to summary judgment on their contractual indemnification claim.
Plaintiff alleges he was injured during a demolition of a bathroom ceiling in an apartment unit when an A-frame ladder malfunctioned, causing him to fall. Plaintiff commenced this action against GH 441 1st Fee, LLC as the owner of the apartment building and AKI Renovations Group, Inc. as the general contractor for a violation of Labor Law 240(1). AKI commenced a third-party action against Liberty Brothers Corp. GH 441 and Liberty commenced a second third-party complaint against other parties involved in the project. Plaintiff moved for summary judgment on liability against GH 441 and AKI. Defendants opposed the motion. The Supreme Court denied plaintiff’s motion and plaintiff appealed.
Labor Law § 240(1) (RHF):
The Second Department reversed the order of the lower court and granted plaintiff’s motion for summary judgment pursuant to §240(1). The appellate court conceded that whether a safety device (ladder) provides proper protection is a question of fact, except when the device collapses, moves, falls, or otherwise fails to support the plaintiff and his or her materials (see Mora v 1-10 Bush Term. Owner, L.P., 214 AD3d 785, 786; Melchor v Singh, 90 AD3d 866, 868). A fall from a ladder, by itself, is not sufficient to impose liability under Labor Law § 240(1) (see Melchor v Singh, 90 AD3d at 868; Xidias v Morris Park Contr. Corp., 35 AD3d 850, 851). In this case, plaintiff presented evidence that showed that (1) he was exposed to an elevation risk within the ambit of Labor Law §240(1), (2) that the ladder was of an inadequate height to perform the task of demolishing the bathroom ceiling and was otherwise defective, (3) that the ladder suddenly collapsed, and (4) that the sudden collapse of the defective ladder was a proximate cause of his injuries.
Defense arguments that plaintiff had placed the ladder on debris was not enough to establish a sole proximate cause defense.
PRACTICE POINT:
The four-point framework outlined by the second department is a good starting point when formulating a defense argument in the context of a ladder involved accident. These points should be looked at in conjunction with arguments that plaintiff "(1) had adequate safety devices available, (2) knew both that the safety devices were available and that [he or she was] expected to use them, (3) chose for no good reason not to do so, and (4) would not have been injured had they not made that choice" (Iannaccone v United Natural Foods, Inc., 219 AD3d at 820. (Referenced above in our analysis of Soutar v. City of New York.)
Plaintiff alleges he was injured at a construction site when a cross brace of scaffolding fell from above him, causing him to fall. Plaintiff commenced this action to recover damages for personal injuries alleging a violation of Labor Law 240(1). Plaintiff moved for summary judgment on liability. The Supreme Court granted plaintiff’s motion and defendants appealed.
Labor Law § 240(1) (RHF)
The Appellate Division subsequently affirmed the order granting plaintiff’s motion for summary judgment pursuant to Labor Law §240(1). Plaintiff established that he was struck in the head by a scaffold cross brace that fell while the scaffolding was being disassembled. The court commented that §240(1) is not limited to cases where the falling object is in the process of being hoisted or secured. That statute applies equally where the falling object “required securing for the purposes of the undertaking”.
PRACTICE POINT:
In the case of a falling object, the injured worker must demonstrate the existence of a hazard contemplated under § 240(1) “and the failure to use, or the inadequacy of, a safety device of the kind enumerated” in the statute.
Plaintiff commenced this action to recover for personal injuries he alleged he sustained while working at a construction site owned by 685 First and managed by Solow. The plaintiff moved for summary judgment on the issue of liability on so much of the cause of action alleging a violation of Labor Law 241(6) predicated on violations of 12 NYCRR 23-1.7(d) and (e)(1). Defendants opposed and the Supreme Court denied plaintiff’s motion. Plaintiff appealed.
Labor Law § 241(6) (MRV)
Plaintiff failed to establish, prima facie, that the defendants violated 12 NYCRR 23-1.7(d), which protects workers from slipping hazards. In support of his motion, the plaintiff submitted a transcript of his deposition testimony in which he testified that he had previously walked on the pavers at issue at the site when they were wet and had not experienced any issues with them being slippery. As such, plaintiff’s testimony raised triable issues of fact as to whether a slippery condition existed. There were also triable issues as to whether the broken paver at issue existed for a sufficient length of time such that someone within the chain of the construction project was negligent in not exercising reasonable care or acting within a reasonable time, to prevent or remediate the hazard.
Decedent was employed as a welder by Roman Iron Works, Inc. and was performing construction work in connection with a residential development project. Stewart Senter, Inc. was the construction manager for the project. Decedent was directed by his supervisor, also an employee of Roman, to build a makeshift “scaffold” using wooden planks in order to carry a column between cement structures. The decedent was carrying the column across the makeshift scaffold when it collapsed, causing decedent to fall and the column he was carrying to strike him.
Decedent’s wife commenced this action against defendants alleging common-law negligence and violations of Labor law 200, 240(1), and 241(6). Following completion of discovery, the defendant moved for summary judgment dismissing the causes of action alleging common-law negligence and a violation of Labor Law 200. Plaintiff cross-moved for summary judgment on 240(1) and 241(6). The Supreme Court denied defendants’ motion and granted plaintiff’s cross-motion. Defendants appealed.
Labor Law § 240(1) (RHF)
The appellate division reversed the lower court and found that there was a question of fact as to whether the defendant was an agent of the owner or general contractor. It is well settled that a “construction manager” is not responsible for injuries under Labor Law §§ 200, 240(1) or 241(6). However, when the “construction manager” functions as an agent of the property owner or general contractor in circumstances where it has the ability to control the activity which brought about the plaintiff's injury, responsibility will attach" (Jin Gak Kim v Kirchoff-Consigli Constr. Mgt., LLC, 197 AD3d 1289, 1290-1291.
It is important to note that the Second Department recognized that the label given to a defendant (“construction manager” or “general contractor”) is not determinative as to exposure to liability under 240(1). "Instead, the core inquiry is whether the defendant had the 'authority to supervise or control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition'" (Myles v Claxton, 115 AD3d at 655).
Plaintiff’s own testimony was detrimental to his claim for summary judgment. Plaintiff testified that he took all of his instructions from his employer. Defendant’s director of construction averred that he only performed “drive by” inspection of the property once a week. Based on this proof, there was a question of fact as to whether the defendant was an “agent” or equivalent of a general contractor.
PRACTICE POINT:
When the role of the defendant is ambiguous as to whether they are a general contractor or merely an agent/construction manager, there is often an opportunity to utilize plaintiff’s own testimony to shield a labor law defendant from § 240(1) liability. Plaintiffs will frequently be more than happy to point out how little the construction manager did overseeing the work and how infrequently the construction manager was on the job site. This testimony is helpful in the creation of factual issues sufficient to defeat a motion for summary judgment based on whether the defendant had the authority to supervise or control the activity bringing about the injury.
Labor Law § 241(6) (MRV)
The Appellate Court held that the lower court should have denied plaintiff’s cross-motion on 241(6) because plaintiff failed to eliminate triable issues of fact as to whether the defendant was an agent of the owner or general contractor with regard to the decedent’s work.
Labor Law § 200 and Common-Law Negligence (PCSM)
The Second Department affirmed the denial of Stewart Senter, Inc.’s motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims. The decedent was injured when a makeshift scaffold constructed from wooden planks collapsed while he was carrying a column across it. Since the accident arose from the manner in which the work was performed, liability depended on whether Stewart Senter had authority to supervise or control the decedent’s work. The court found that Stewart Senter failed to establish that it lacked such authority, as its director of construction did not address its supervisory authority over subcontractors and the defendant failed to submit other evidence, such as its construction management contract, demonstrating that it lacked control over the work. Accordingly, triable issues remained regarding Stewart Senter’s authority to supervise or control the decedent’s work.
Plaintiff allegedly sustained injuries while working on a construction site when a 20- to 25-pound u-head fell from above and struck his head and shoulder. Defendant New York City School Construction Authority was the general contractor and defendant New York City Department of Education owned the premises.
Plaintiff, and his wife suing derivatively, commenced this action against the defendants to recover damages for personal injuries alleging violations of Labor Law 200, 240(1), and 241(6). The plaintiffs moved for summary judgment on the issue of liability on the causes of action alleging violations of Labor Law 200 and 240(1) and the 241(6) claim predicated on an alleged violation of 12 NYCRR 23-1.7(a)(1). The Supreme Court denied plaintiff’s motion and plaintiff appealed.
Labor Law § 240(1) (RHF)
The second department reversed the lower court’s decision and granted plaintiff’s motion pursuant to § 240(1). The defendants opposed the motion by the plaintiff arguing, in part, that there was testimony that workers 30-45 feet above the plaintiff were “throwing clamps around” and therefore there was a triable issue of fact as to whether there was a violation of statute. Plaintiff established the existence of a hazard contemplated by § 240(1) and that there was no safety netting or other safety device enumerated by the statute.
PRACTICE POINT:
The horseplay or reckless conduct of the workers above the plaintiff was not enough to demonstrate a trial issue of fact as to whether the u-head fell as the result of the failure to use, or the inadequacy of, a safety device of the kind enumerated in Labor Law section § 240(1).
Labor Law § 241(6) (MRV)
The Appellate Court held the lower court properly denied plaintiff’s motion for summary judgment alleging a violation of 241(6) predicated on a violation of 12 NYCRR 23-1.7(a)(1) insofar as asserted against the defendants. Plaintiff’s testimony that certain object had fallen in the same area in which the inured plaintiff was injured approximately one hour before the accident was inadequate to eliminate triable issues of fact as to whether that area was “normally exposed to falling material or objects” within the meaning of 12 NYCRR 23-1.7(a)(1).
Labor Law § 200 and Common-Law Negligence (PCSM)
The Second Department affirmed the denial of the plaintiffs’ motion for summary judgment on their Labor Law § 200 claim against the New York City School Construction Authority and the New York City Department of Education. The injured plaintiff was struck by a falling u-head while working at a construction site. Since the accident arose from the manner in which the work was performed, liability under Labor Law § 200 depended on whether the defendants exercised sufficient supervisory control over the injured plaintiff’s work. The court determined that the plaintiffs failed to establish, prima facie, that the defendants exercised sufficient supervisory control over the injured plaintiff’s work to impose liability under Labor Law § 200. Accordingly, the Court determined that the lower court properly denied summary judgment on the claim.
 New York Industrial Code Regulations (EDA)
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Regulation § 23–1.29 Public vehicular traffic
(a) Whenever any construction, demolition or excavation work is being performed over, on or in close proximity to a street, road, highway or any other location where public vehicular traffic may be hazardous to the persons performing such work, such work area shall be so fenced or barricaded as to direct such public vehicular traffic away from such area, or such traffic shall be controlled by designated persons.
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Regulation § 23–1.29(a) is sufficiently specific to support a Labor Law § 241(6) cause of action as it provides specific and particular actions to take and/or avoid.
Bucci v. City of N.Y., 223 A.D.3d 453, 455, 203 N.Y.S.3d 533, 536 (App. Div. 1st Dept.) 2024
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A moving truck struck the cable that was installed in an underpass area and caused the cable to whiplash and strike plaintiff. At the time, there was no flag person or erected barricades to control traffic in the work area.
Bucci v. City of N.Y., 223 A.D.3d 453, 455, 203 N.Y.S.3d 533, 536 (App. Div. 1st Dept.) 2024
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Regulation § 23–1.29(a) does apply to construction performed within a gated parking lot, having only one entrance, separated from the nearest road by a sidewalk, with its use restricted to hotel employees and guests who gain access with a key card. Further, the court found that the term "traffic" does include vehicles moving within a confined area designated for parking.
Schoonover v Diaz, 202 NYS3d 510, 514, 2023 NY Slip Op 06578, *2 (App. Div. 3rd Dept. 2023)
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Labor Law Pointers
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David R. Adams, Team Leader
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