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Plaintiff was injured when he fell from an elevated scaffold that was shaky and unstable as he and coworkers dismantled the scaffold. The Supreme Court granted plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim.
The First Department affirmed plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim, concluding that plaintiff submitted evidence which established he fell from an elevated scaffold that was shaky and unstable, with no guardrails, hoists or anchoring points to tie off. The Court held that those factors demonstrated a violation of Labor Law § 240(1). Defendant argued that it had a standing order for workers to bend in protruding nails before handing down the slabs, and workers did not follow that policy, causing a protruding nail to snag plaintiff’s clothing and cause him to fall. The Court held that even if that is true, defendants are liable under any versions of the event, and plaintiff was still not the sole proximate cause of the accident.
PRACTICE POINT: If plaintiff is able to establish that he fell from a height because there were no safety devices to provide him proper protection, he will be entitled to summary judgment under Labor Law § 240(1), if defendant is unable to show that plaintiff was the sole proximate cause of his injury.
Plaintiff was injured in a construction site accident. Plaintiff claims that his accident occurred when he fell from the scissor lift he had been working on which had not fully descended to its lowest position. Plaintiff was unable to visually verify whether the scissor lift had fully descended because of poor lighting. He noted that he would typically be working with a “spot man” or spotter, but that no spotter was present at the time. The Premises was owned by Co-defendant, Hudson River Park Trust and subsequently leased to SUPER P57. At the time of his accident, plaintiff was employed by Defendant, SIMA. The defendant, Super P57, entered into a subcontract with Defendant Nova to perform interior lead paint and asbestos abatement work on the Premises. Nova, in turn, subcontracted the work it had been hired to perform to Defendant Scaturro. Scaturro, then subcontracted the work to Defendant SIMA.
The Supreme Court denied the motion of defendant Hunter Roberts Construction Group, LLC (HRCG) for summary judgment dismissing the complaint and all cross-claims against it,
 Labor Law § 240(1) (JLD)
The First Department concluded that the trial court correctly declined to dismiss the § 240(1) claims against HRCG, as there remained triable issues of fact as to whether HRCG was responsible for directing or supervising the project. HRCG was authorized to supervise and direct the subcontractors’ work, and develop and enforce a project safety plan, as well as stop work if an unsafe work practice was observed. The Court opined that this evidence suggests HRCG could be liable under 240(1). However, evidence existed that pointed to no liability under § 240(1): that HRCG was not licensed or certified to oversee lead abatement work and was precluded from accessing the lead paint removal containment area. Thus, triable issues of fact exist that preclude granting the summary judgment motion.
PRACTICE POINT: If a defendant cannot establish that it did not supervise or direct the construction project, it will not be able to successfully establish that it is not a proper defendant for the purposes of Labor Law § 240(1). Any supervision and direction or the power to stop work if unsafe practices are observed tends to suggest a defendant is a proper party.
 Labor Law § 241(6) (TJE)
The Appellate Division held that the trial court properly declined to dismiss Plaintiff’s Labor Law § 241(6) claim, as the conflicting record on HRCG’s authority over the lead abatement work and on whether it was a statutory agent of the owner created triable issues of fact.
 Labor Law § 200 and Common-Law Negligence (MRV)
The First Department held the lower court should have dismissed plaintiff’s Labor Law § 200 and common-law negligence claims as alleged against HRCG because there was no evidence in the record sufficient to raise a triable issue of fact on whether HRCG actually directed or controlled plaintiff’s injury-producing work. HRCG was not allowed access to the containment area where plaintiff worked and was injured.
Plaintiff stood on an unsecured ladder to do repair work at a construction site; the ladder gave way and he fell to the ground. The Supreme Court granted plaintiff's motion for summary judgment on his Labor Law §§ 240(1) and 241(6) claims.
The First Department affirmed the order granting plaintiff’s motion for summary judgment in § 240(1), finding that defendant failed to provide plaintiff with adequate safety devices. Plaintiff’s deposition testimony established that the ladder was unsecured, which was sufficient to establish liability. Defendant’s evidence did not establish that plaintiff was engaged in routine maintenance, nor that he was the sole proximate cause of his injuries. Defendant attempted to establish that plaintiff caused the ladder to shake after he touched a hot pipe via uncertified emergency room records. However, that was insufficient to compel a different result because defendant failed to show that the ladder was an adequate safety device for the task. The court concluded that even if plaintiff negligently touched the pipe, comparative negligence is not a defense to the Labor Law § 240(1) claim.
PRACTICE POINT: It is not sufficient to present evidence that plaintiff caused the ladder to shake by touching a hot pipe. Defendant must show that the ladder was an adequate safety device, and plaintiff touching the hot pipe was the sole proximate cause of his injury. Defendant failed to eliminate all factual questions regarding the sufficiency of the safety device. It is important to deal with all these issues in discovery prior to making a dispositive motion.
Labor Law § 241(6) (TJE)
The First Department did not reach the merits of this claim, finding them academic due to grant of Plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim.
Plaintiff tripped over raised Masonite board and was injured. The Supreme Court denied plaintiff's cross-motion for partial summary judgment against the JMDH defendants on his claim pursuant to Labor Law § 241(6), and against Barr & Barr, Inc. on his claims pursuant to Labor Law § 200 and for common-law negligence, and dismissing all of said defendants' affirmative defenses predicated on his alleged comparative fault and culpable conduct, granted the summary judgment motion by JMDH defendants, Jethro, and Barr for dismissal of plaintiff's Labor Law § 241(6) claim, and denied the dismissal of plaintiff's Labor Law § 200 and common-law negligence claims, and on their third-party claims for contractual indemnification against third-party defendants Capitol Fire Sprinkler Co., Inc. and Construction Resources Corp. of New York (CRC), and granted the separate motions of Capitol Fire and CRC for summary judgment dismissing the third-party complaint by the JMDH defendants.
Labor Law § 241(6) (TJE)
The First Department modified the trial court’s order, and reinstated Plaintiff’s Labor Law § 241(6) claim against JMDH, and granting partial summary judgment on the claim. Plaintiff established a Labor Law § 241(6) violation predicated on 12 NYCRR §23-1.7(e)(1) as the raised Masonite board was an obstruction in a passageway, and the integral-to-the-work doctrine did not apply as the board was not inherent to the task at hand and was avoidable with proper inspection and re-taping.
Labor Law § 200 and Common-Law Negligence (MRV)
The Court held plaintiff’s motion for summary judgment on his Labor Law § 200 and common-law negligence claims was academic and need not be reached in light of plaintiff’s entitlement to partial summary judgment on Labor Law § 241(6).
 Indemnity Issues in Labor Law (PCSM)
The First Department held that the JMDH defendants were entitled to contractual indemnification against Capital Fire, but only on a conditional basis. The indemnity clause was broad enough to cover the claim because the accident arose out of Capitol Fire’s work. However, the First Department reasoned that indemnification is conditioned on a finding that the JMDH defendants were not negligent, since the contract excluded coverage to the extent of their own fault. The First Department held that the JMDH was not entitled to contractual indemnification from CRC as they failed that the plaintiff’s accident arose out of CRC’s work. Rather, CRC’s role was limited to administrative functions, and it did not control or perform the work that caused the plaintiff’s injury.
Plaintiff, an employee of third-party defendant Branch Restoration, Inc., alleges that while he was performing asbestos abatement work on a construction project, an unsecured wooden plank moved, causing him to fall into a hole and sustain injuries. The Supreme Court granted plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim and his Labor Law § 241(6) claim premised upon Industrial Code (12 NYCRR) § 23-1.7(b)(1) as against defendant Schimenti Construction Company, LLC, and denied Schimenti's motion for summary judgment dismissing the complaint and all cross-claims against it.
Labor Law § 240(1) (JLD)
The First Department affirmed the trial court’s order granting plaintiff’s motion for summary judgment, concluding defendant Schimenti had supervisory control and authority over plaintiff’s work. Defendant’s superintendent testified that it prepared the area by covering holes, creating safety zones and erecting barriers before plaintiff’s employer took control of the area. The Court concluded that Schimenti was a proper labor law defendant as the evidence demonstrated that Schimenti oversaw the build-out of the project, set daily work schedules, coordinated ongoing work and was responsible for overall jobsite safety.
PRACTICE POINT: It is not sufficient to show that the defendant lacked direct access to the area where the work was being performed to establish that you are not a proper defendant for a Labor Law § 240(1) action. A defendant must show that it did not have any supervisory control or authority over the work being done.
Labor Law § 241(6) (TJE)
The First Department affirmed grant of summary judgment on Plaintiff’s motion against Schimenti under Labor Law § 241(6), which was predicated on 12 NYCRR § 23-1.7(b)(1). The court found Schimenti was a proper Labor Law defendant and statutory agent as it oversaw the build-out, retained multiple subcontractors, set daily work schedules, coordinated ongoing work, and was responsible for overall jobsite safety. The court reject the argument Schimenti lacked control and access to the asbestos abatement area, and the record demonstrating it had prepared the area by covering holes, creating safety zones, and erecting barriers.
Labor Law § 200 and Common-Law Negligence (MRV)
The First Department held the lower court correctly found Schimenti to be a proper Labor Law defendant and granted plaintiff summary judgment on his Labor Law § 240(1) claim so Schimenti’s argument concerning plaintiff’s Labor Law § 200 and common-law negligence claims was academic.
Indemnity Issues in Labor Law (PCSM)
The First Department did not reach the merits of Schimenti’s appeal on contractual indemnification because the issue was not properly before it—Schimenti failed to include or reference that determination in its notice of appeal, depriving the court of jurisdiction to review it. Even if considered, the First Department indicated that the ruling would stand, noting that the lower court properly denied Schimenti’s motion to dismiss the contractual indemnification crossclaims asserted by 686 Broadway Realty, LLC and Great Jones Distillers, LLC given the broad language of the indemnification provision and Schimenti's responsibility for site safety and preparation of the asbestos area.
The building's elevator was in use for a protracted period leaving the staircase where he fell as his sole means of access to his work area. The Supreme Court denied the motion of third-party defendant Rosemount to dismiss plaintiff's Labor Law § 240(1) claim, dismiss the contractual indemnity claims of defendants Consigli and The Union Theological Seminary in the City of New York (UTS, and together, defendants), and to dismiss UTS's breach of contract claim, and denied plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim.
Labor Law § 240(1) (JLD)
The First Department concluded that the trial court properly denied summary judgment as to both plaintiff and defendant Rousemount. The Court concluded that permanent staircases are not categorically excluded from Labor Law § 240(1) coverage, and the parties’ contradictory assertions as to whether the staircase was plaintiff’s sole means of accessing his work area creates an issue of fact as to whether the staircase was a safety device.
PRACTICE POINT: Nail down the specifics of plaintiff’s accident at the deposition. If there is a question of whether something is a safety device, the court will find a question of fact and deny summary judgment.
Indemnity Issues in Labor Law (PCSM)
The First Department held that the Supreme Court should have dismissed the defendants’ third-party claims against Rosemount, noting that though Rosemount’s contract with Consigli contained an indemnification provision, it was not triggered because the plaintiff’s accident did not arise from Rosemount’s work, but rather from an allegedly insufficiently taped Masonite floor covering installed by Consigli. The First Department emphasized that the plaintiff’s mere presence at the job site was insufficient to invoke indemnification and rejected defendants’ unsupported claim that the plaintiff caused the accident by running. The First Department further upheld dismissal of the breach of contract claim by UTS, finding that Rosemount satisfied its contractual obligation by procuring the required insurance and naming the appropriate parties as additional insureds.
Plaintiff testified that it was impossible for him to access his work materials without entering an area, which contained a "messy pile" of materials that caused him to trip and fall. Plaintiff testified that he was carrying molding materials that were up to eight feet long and up to four pounds each when he tried to pick up materials from a material pile. The Supreme Court granted plaintiff's motion for summary judgment on his Labor Law § 241(6) claim premised on Industrial Code (12 NYCRR) §§ 23-1.7(e)(2) and 23-2.1(a)(1) as against defendant L&K Partners, Inc. and for dismissal of L&K's affirmative defenses of sole proximate cause and culpable conduct.
Labor Law § 241(6) (TJE)
The First Department modified the trial court’s decision, finding that Plaintiff was entitled to summary judgment only to the extent his claim was premised on 12 NYCRR § 23-1.7(e)(2), because the area plaintiff crossed to reach his materials qualified as a working area. In contrast, summary judgment should not have been granted on portion of claim premised on 12 NYCRR § 23-2.1(a)(1), because the record raised issues of fact as to whether the accident occurred in a passageway, and whether the pile was building material or merely debris.
The First Department also noted that L&K may not assert an affirmative defense that plaintiff was the sole proximate cause, based on the finding of liability under Labor Law § 241(6), but that the trial court should not have dismissed affirmative defense of plaintiff’s comparative negligence of carrying materials while performing another task, which could offset any damages under Labor Law § 241(6).
Plaintiff was given access only to one ladder, which he described as "loose" and lacking rubber feet; that all four feet of the ladder were on the floor; and that the ladder shifted while he used it. The Supreme Court denied plaintiff's motion for summary judgment on his Labor Law § 240(1) claim and denied defendants' cross-motion for summary judgment dismissing plaintiff's Labor Law §§ 240(1) and 241(6) claims.
Labor Law § 240(1) (JLD)
The First Department concluded that the trial court properly granted plaintiff’s motion for summary judgment. Defendants attempted to make a sole proximate cause argument which the appellate court rejected, concluding that plaintiff provided a specific reason why he had to place his foot on a railing and did not use an extender.
PRACTICE POINT: To rebut a prima facie showing of entitlement to summary judgment under Labor Law § 240(1) for an elevation-related fall, a defendant must show that there were adequate safety devices, plaintiff knew they were available, plaintiff was expected to use them, and he chose for no good reason not to do so. If the plaintiff can show a specific reason for his decision not to use a particular safety device, plaintiff’s actions will not be the sole proximate cause of the accident.
Labor Law § 241(6) (TJE)
As a result of the First Department’s finding on Plaintiff’s Labor Law § 240(1) claim, the 241(6) issue was rendered academic.
Plaintiff fell from a ladder while installing ductwork at defendants' premises. Plaintiff's testimony and video footage of the accident show that the ladder shifted and moved while plaintiff began her descent. The Supreme Court denied plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim and denied defendants' cross-motion for summary judgment dismissing the Labor Law §§ 240(1), 241(6), and 200 and common-law negligence claims,
Labor Law § 240(1) (JLD)
The First Department reversed the trial court, opining that plaintiff should have been granted partial summary judgment on her Labor Law § 240(1) claim. The Court concluded that plaintiff established prima facie entitlement to summary judgment via her testimony and video footage of the accident that shows that the ladder shifted and moved while she began her descent. Defendants failed to establish that plaintiff was the sole proximate cause of the accident and defendant’s expert opinion was contradicted by the video evidence. The court concluded that even if the ladder was positioned in a way that plaintiff had to reach or lean to install a screw, at most, that established comparative negligence, which is not a Labor Law § 240(1) defense.
PRACTICE POINT: Plaintiff can establish a prima facie entitlement to summary judgment by establishing that a ladder failed to provide proper protection. Plaintiff is not required to establish that the ladder is defective.
Plaintiff, Philip Tower, an employee of third-party defendant Jacobson, was injured when he tripped over a loose pipe at a construction site. Plaintiff asserted various Labor Law claims against Tone, the general contractor, and TGA-Owner, the property owner. The Supreme Court granted the motion of defendant/third-party plaintiff Tone for summary judgment dismissing plaintiff's claims under Labor Law § 200 and common-law negligence as against it, denied plaintiff's motion for partial summary judgment on his Labor Law § 241(6) claim against defendant TGA-Owner and Tone, denied the branch of TGA-Owner's cross-motion and Tone's motion for summary judgment dismissing plaintiff's Labor Law § 241(6) claim, conditionally granted Tone's motion for summary judgment on its claims for contractual defense and indemnity from third-party defendants Jacobson and ABCO, denied the branch of Jacobson's motion as sought summary judgment dismissing Tone's third-party claims for contractual defense and indemnity against it, and denied Jacobson's motion for summary judgment on its cross-claims for common-law indemnity and contribution against ABCO.
Labor Law § 241(6) (TJE)
The First Department modified the trial court’s order and granted plaintiff’s motion for partial summary judgment of his Labor Law § 241(6) claim, predicated on a violation of 12 NYCRR § 23-1.7(e)(1) and (e)(2). A violation was established as Plaintiff tripped on the loose pipe while using the only route available between the elevator and storage area, and the area where he fell qualified as a working area, and the integral-to-the-work doctrine did not apply because the loose pipe on the ground was not inherent in the task at hand and the danger could have been avoided.
Indemnity Issues in Labor Law (PCSM)
The First Department upheld the grant of conditional contractual indemnification in favor of Tone against subcontractors Jacobson and ABCO, finding that the plaintiff’s injury arose out of the subcontractors’ work. Jacobson’s obligation was triggered because the plaintiff was injured in the course of his employment with it, while ABCO’s obligation stemmed from its sprinkler installation work and its responsibility to properly store materials, including the pipe involved in the accident. The First Department held that indemnification was properly awarded on a conditional basis, however, in light of the potential negligence by Tone in maintaining site safety and cleanliness. The First Department also denied Jacobson’s motion to dismiss ABCO’s cross-claims for common-law indemnification and contribution, holding that issues of fact remain as to whether Jacobson and the plaintiff were negligent.
Plaintiff was employed as a construction helper by nonparty New York Interior Construction. The electrician told plaintiff and the other helper to run an electrical line from the unit's kitchen to the building's utility room two rooms away. Plaintiff told his helping partner that he would call his partner on his cell phone when he was ready.
Plaintiff then went to the utility room by himself and set up an eight-foot aluminum A-frame ladder. He placed it facing the building's electrical panel, which was uncovered. The ladder was in good condition, level, and standing on all four feet. Plaintiff stated, as he climbed, the ladder did not move in any way. Plaintiff ultimately reached the second or third rung from the top, and from this level the electrical panel was about two to three feet above him. Although plaintiff had not yet called his partner, the wire suddenly came through from the ceiling, hitting the electrical panel. The wire "snapped like a whip, . . . touched the inside of the open panel[,] and an explosion occurred." The explosion caused a loss of power to the entire building. The Supreme Court denied plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim.
Labor Law § 240(1) (JLD)
The First Department affirmed the denial of plaintiff’s partial summary judgment motion, concluding that plaintiff here failed to submit any evidence, whether by his own testimony or through an expert opinion, addressing gravity-related safety devices or precautions that may have prevented his fall. There was no dispute that plaintiff’s accident was caused by an explosive electrical discharge; plaintiff testified that the ladder was in good condition, level, standing on all four feet, and did not move as he climbed it. The court concluded that when there is no expert testimony or other evidence that the ladder was inadequate, or another safety device would have prevented his fall, summary judgment in plaintiff’s favor would be inappropriate.
PRACTICE POINT: When attempting to establish that plaintiff fell from electrical discharge, the record must establish that the shock was strong enough to propel plaintiff to the ground. Plaintiff must establish that gravity-related safety devices or precautions could have prevented his fall.
Plaintiff was transporting 8 pieces of sheetrock, approximately 1 inch thick and weighing around 10 pounds each on an A-frame cart, as the site foreman had instructed her, when the cart got caught on debris and flipped over, causing the sheetrock to fall on her. The Supreme Court granted plaintiff's motion for summary judgment on liability on her Labor Law § 240(1) claim and her Labor Law § 241(6) claim based on a violation of Industrial Code § 23-1.7(e)(1) and (2),
Labor Law § 240(1) (JLD)
The Court affirmed the order granting summary judgment for plaintiff, finding that she established prima facie entitlement through her testimony which established that the elevation differential fell within the purview of the statute. Defendants failed to raise a triable issue of fact, as they relied extensively on an incident report which was prepared more than six weeks after the incident and there was no evidence that the individuals identified as witnesses actually witnessed the incident. The Court concluded that a hearsay incident report was insufficient to raise a triable issue of fact.
PRACTICE POINT: Be sure that any evidence being used to create a question of fact in opposition to a dispositive motion is in admissible form so the Court can properly consider it.
Labor Law § 241(6) (TJE)
The First Department affirmed the trial court’s grant of summary judgment on Plaintiff’s Labor Law §241(6) claim based on a violation of Industrial Code § 23-1.7(e)(1) and (2), find any contentions were academic due to the court’s finding of liability under Labor Law § 240(1).
Plaintiff was injured when a scaffold she was using rolled and one of its legs went into a "hole" or "rebar area," causing the scaffold to tip over and onto her. The Supreme Court denied defendants' motion for summary judgment dismissing the common-law negligence and Labor Law §§ 200 and 240(1) claims.
Labor Law § 240(1) (JLD)
The Court affirmed the order denying defendants’ motion for summary judgment, because they failed to establish that plaintiff was a recalcitrant worker. Defendants failed to present evidence that plaintiff was instructed to lock the scaffold’s wheels each time she loaded buckets onto it.
PRACTICE POINT: Defendants will not be able to establish a recalcitrant worker defense if it is unable to establish via admissible evidence that plaintiff failed to follow instructions which could have avoided the injury.
Labor Law § 200 and Common-Law Negligence (MRV)
The Court held there are questions of fact precluding summary judgment dismissal of plaintiff’s common-law negligence and Labor Law § 200 claims. When an injury is caused by an existing defect or dangerous condition, liability attaches if the owner or general contractor created the condition or had actual or constructive notice of it. Here, defendants failed to meet their burden of demonstrating that they lacked notice of the hole or rebar area by failing to provide evidence regarding when the accident location was last inspected before the accident.
Plaintiff testified that he was standing on a plank that was 3 to 4½ feet above the metal awning onto which he fell when the unsecured plank suddenly shifted and tipped. The Supreme Court denied defendants' motion for summary judgment dismissing plaintiffs' Labor Law § 240(1) claim, and granted the motion seeking dismissal of plaintiff's claims under Labor Law §§ 241(6) and 200, and common-law negligence, and granted plaintiffs' motion for partial summary judgment on the issue of liability under Labor Law §§ 240(1) and 241(6) to the extent of granting summary judgment on the claim under Labor Law § 240(1).
Labor Law § 240(1) (JLD)
The Court affirmed the trial court’s order, finding that defendants failed to establish that plaintiff was the sole proximate cause of his injuries. Defendant alleges plaintiff was reckless and did not tie down the plank with available clamps or ropes, and should have utilized a scissor lift. The Court concluded that there was no evidence offered to show that plaintiff deliberately disobeyed a direct instruction to use clamps or tie-downs, and furthermore, that there was no evidence, including from defendant’s expert, that a scissor lift would have allowed workers to safely perform their work.
PRACTICE POINT: A sole proximate cause defense will fail when there is evidence of multiple safety shortcomings that led to plaintiff’s accident because the plaintiff because the plaintiff will be able to establish that plaintiff cannot be the sole proximate cause.
Plaintiff provided unrebutted testimony that while he was tightening a coupling on a pipe in the ceiling, the A-frame ladder he was standing on moved, causing him to fall and the ladder to tip over. The Supreme Court denied plaintiff 's motion for summary judgment on liability on his Labor Law § 240(1) claim.
Labor Law § 240(1) (JLD)
The First Department reversed the trial court’s findings and granted plaintiff’s motion for summary judgment on his § 240(1) claim. The Court found that plaintiff established a prima facie entitlement to summary judgment as he provided unrebutted testimony. Defendants, the court concluded, failed to raise a triable issue of fact as to whether plaintiff was the sole proximate cause of his accident. Defendant’s expert opinion was that plaintiff did not need a ladder, but this was based on an incomplete reading of plaintiff’s testimony. The court concluded the expert report was speculative, and even if plaintiff’s testimony contained inconsistencies concerning the height of the ceiling, such inconsistencies were insufficient to raise a triable issue of fact.
PRACTICE POINT: A speculative expert report which does not establish first hand knowledge when trying to rebut a plaintiff’s prima facie case related to an elevation-related fall, will not be sufficient to raise a triable issue of fact. Defendant’s expert report must be based upon more than speculation.
Defendant RXR, the owner of commercial property leased 5½ floors of the premises to defendant Cahill. Cahill retained defendant Henegan as general contractor to build out and install interior finishes on the leased floors, and Henegan, in turn, retained Eurotech to install the framing, drywall, and ceiling. The injured plaintiff, a carpenter employed by Eurotech, alleges that he was injured as he was installing sheetrock in the ceiling. To reach the ceiling, plaintiff was instructed to position and use a Baker scaffold, which was set at about three feet above the ground but was missing safety rails. Plaintiff testified that he could not recall if he locked the scaffold's wheels or whether he checked that they were locked. As plaintiff worked, the Baker scaffold shifted, causing him to lose balance and fall about three feet to the ground.
The Supreme Court granted plaintiffs' motion to dismiss the affirmative defense of culpable conduct and denied the motion of defendants RXR 32 Old Slip Owner, LLC, Henegan Construction Co., Inc., and Cahill Gordon & Reindel LLP for summary judgment on their contractual indemnification claim against third-party defendant Eurotech Construction Corp.
Indemnity Issues in Labor Law (PCSM)
The First Department held that the Supreme Court should have granted summary judgment in favor of RXR and Cahill on their contractual indemnification claims against Eurotech, finding they established they were free from negligence because the accident arose from the subcontractor’s means and methods, over which they exercised no supervisory control. As to Henegan, the First Department held that it should have been granted conditional contractual indemnification against Eurotech, as issues of fact remained regarding whether Henegan’s coordination of subcontractors or direction of material storage contributed to the accident. The First Department further reinstated defendants’ affirmative defense of culpable conduct, concluding that triable issues existed as to whether the plaintiff—an employee of Eurotech—was partially negligent, and that such issues were relevant to the indemnification claims despite the grant of summary judgment under Labor Law § 240(1).
The defendant BSD 370 Lexington, L.L.C., contracted for the plaintiff's employer, Gateway Builders Corp., to perform certain renovation work at a building it owned. The plaintiff's assigned work on the project required him to stand on top of a Baker scaffold. As the plaintiff was attempting to move the scaffold while standing on the platform of the scaffold, the scaffold toppled over and the plaintiff fell five to six feet to the floor below. The Supreme Court denied the plaintiff's motion for summary judgment on the Labor Law § 240(1) claim and so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated on violations of 12 NYCRR 23-5.1(b), 23-5.1(c)(2), 23-5.18(b), and 23-1.7(e)(2).
Labor Law § 240(1) (JLD)
The Court reversed the trial court’s findings, concluding that the plaintiff met his prima facie burden of demonstrating a violation of Labor Law § 240(1) via his deposition transcript which established that he fell from a scaffold with no safety railings and that he was not provided with any safety devices to keep him from falling. Defendants failed to raise any triable issue of fact.
PRACTICE POINT: A plaintiff can establish his prima facie burden of an elevation-related safety risk simply with a deposition transcript which establishes he fell from a height and was not provided any safety devices.
Labor Law § 241(6) (TJE)
The Second Department found the trial court properly denied summary judgement on Plaintiff’s Labor Law § 241(6) claims predicated on NYCRR § 23-5.1(b), (c)(2), and 23-1.7(e)(2), as plaintiff had not established the applicability of those provisions. However, the trial court should have granted summary judgement under Labor Law § 241(6) based on a violation of 12 NYCRR § 23-5.18(b), as the manually scaffold lacked safety railings and defendants failed to raise a triable issue of fact.
The defendant NYPA owned certain power lines located in Beekmantown. NYPA contracted with the Northline defendants to perform repair work on those power lines. The Northline defendants subcontracted with Catalyst to transport the Northline defendants' linemen by helicopter to the power lines, thereby enabling the linemen to perform the repair work from an aerial platform attached to the helicopter. The plaintiff, a licensed pilot and Catalyst employee, was the co-pilot of the helicopter, which was owned by Catalyst. The helicopter also was carrying two linemen, who were employed by the Northline defendants. While the linemen were performing the repair work from the aerial platform of the airborne helicopter, the helicopter came into contact with the power lines, causing the helicopter to catch fire and ultimately crash. The plaintiff jumped from the helicopter when it was approximately 75 feet in the air and sustained injuries. The Supreme Court granted the defendants' motion pursuant to CPLR 3211(a)(7) to dismiss the complaint.
Labor Law § 240(1) (JLD)
The court concluded that the standards of care underlying Labor Law § 240(1) conflicted with, and was thus, preempted by, the federal recklessness standard. As Labor Law § 240(1) is an absolute liability standard, it is in conflict with 14 CFR 91.3(a), and is preempted. The trial court properly dismissed the causes of action alleging violations of Labor Law § 240(1).
PRACTICE POINT: In situations where a federal preemption occurs, a state action may proceed, provided that the preemption issue is limited to the standard of care, and an appropriate federal standard of care can be substituted for the state standard of care.
Labor Law § 241(6) (TJE)
The Second Department found the trial court properly granted Defendant’s CPLR § 3211(a)(7) motion to dismiss Plaintiff’s Labor Law § 241(6) cause of action, as it was preempted by the federal aviation law because Plaintiff was co-piloting the helicopter at the time of the accident and his allegations the helicopter was an inadequate safety device could not be separated from his operation of the helicopter and conflicts with federal aviation rules placing responsibility for flight operations on the pilot.
Labor Law § 200 and Common-Law Negligence (MRV)
The Court held that plaintiff’s causes of action alleging common-law negligence and a violation of Labor law § 200 conflict with the federal rule because the federal rule places sole responsibility on the pilot for all flight operations. Therefore, plaintiff’s common-law negligence and Labor Law § 200 claims are preempted by the federal recklessness standard. However, those branches of defendant’s motion which were pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging common-law negligence and a violation of Labor Law § 200 should have been denied because these causes of action can remain viable by substituting the federal standard of care.
The underlying facts of this case are summarized in a related appeal decided herewith (see Fabia v Power Auth. of the State of N.Y., 2026 N.Y. App. Div. LEXIS 1653_____). As relevant to this appeal, the plaintiff's decedent, a licensed pilot and employee of Catalyst Aviation, LLC, was piloting a helicopter that was involved in an accident. The plaintiff's decedent jumped from the helicopter when it was approximately 75 feet in the air, resulting in fatal injuries. The Supreme Court granted the defendants' motion pursuant to CPLR 3211(a)(7) to dismiss the complaint.
Labor Law § 200 and Common-Law Negligence (MRV)
The Court modified the lower court’s Order and denied defendants’ motion to dismiss plaintiff’s causes of action alleging common-law negligence and a violation of Labor Law § 200 for the reasons set forth in the Fabia decision outlined above.
The plaintiff was performing renovation work at defendant's vacation home, located in Columbia County, when he fell into a hole that had been excavated for the installation of a Bilco door in the basement of the home. The Supreme Court denied defendant's motion for summary judgment dismissing the complaint.
Labor Law § 240(1) (JLD)
The Court concluded that the trial court properly denied defendant’s motion for summary judgment as the plaintiff raised a material issue of fact as to whether defendant exercised the requisite direction or control so as to render the exemption for one- or two- family homeowners inapplicable.
PRACTICE POINT: A defendant will only be able to establish the one- or two- family dwelling exemption, if there is admissible evidence that defendants did not direct or control the work. To “direct or control” is to be strictly construed and the inquiry looks at the degree to which the owner supervises the method and manner of the actual work being performed by the injured party. Bombard v. Pruiksma, 110 AD3d 1304 (3d Dept. 2013)
Labor Law § 241(6) (TJE)
The Third Department found the trial court properly denied summary judgement dismissing Plaintiff’s Labor Law § 241(6) claim as though Defendant made a prima facie showing of application of the homeowner’s exemption, plaintiff raised a triable issue of fact in opposition.
Labor Law § 200 and Common-Law Negligence (MRV)
The lower court appropriately denied defendant’s motion for summary judgment on Labor Law § 200 and common-law negligence because there were questions of fact regarding whether defendant exercises the requisite control of the place of injury.
 New York Industrial Code Regulations (EDA)
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