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Volume XV, No. 9
Wednesday, August 5, 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.
Well, it is August, which I like to think of as early mid-summer, despite what the calendar might say. I fear I'm starting to sound like an old-timer, but over the past few weeks, as I've prepared for trial in one case and dispositive motions in another, I've had several conversations with colleagues about the time when the courts were, for all intents and purposes, shut down for the month of August. Now, it seems like it's full speed ahead all the time.
In honor of the sanctity of August, we are taking a summer break on our monthly webinar and will pick it back up in September. Our goal has been to keep each webinar concise, about 30 minutes, and focused on a specific issue directly related to New York Labor Law cases. Please join us in September, details in the next edition.
We are launching a new mentoring initiative at Hurwitz Fine: Associate Development Days. Next week, we will devote two days to providing associates, and any attorneys who are interested, with a variety of training sessions designed to strengthen the skills that are best developed through shared experience. Among the highlights, we will welcome a Vice President of Claims who will discuss carrier expectations for file handling and reporting, an experienced mediator who will share effective mediation strategies, and a legal writing coach who will offer practical tips for more effective legal writing. We will also cover conducting effective depositions, along with several other topics. And, of course, we'll wrap it all up with a happy hour.
Getting on to our Photos of the Month, our first offering features a single-family homeowner who is concerned about a tree branch hanging over his roof. Not knowing who to call for this issue, he contacts a local roofing company to take a look at the issue. They determine that they can remove the limb and, while they are up there, inspect the roof to see whether any repairs are needed.
When the crew arrives, the ladder they brought is not tall enough to reach the branch from the ground. The homeowner suggests that the ladder would reach if it were placed on the roof, and everyone agrees that this is a brilliant idea. Ever safety-conscious, the homeowner has the crew use his own ladder to access the lower roof, reasoning that using the door to the second-floor porch would be dangerous because the porch lacks a railing. Once on the roof, the homeowner begins to have second thoughts about the safety of the project. Rather than voice his concerns, however, he hides behind the chimney to protect himself. The first thing the workers do is set up the ladder and a worker climbs up to cut the branch. As he cuts the branch the remaining portion springs up, causing the ladder to fall and the worker to be injured. § 240(1)?
We begin with the prima facie case. First, the plaintiff was a person so employed and, thus is a valid plaintiff. The building owner, as the owner of a single-family home not used for commercial purposes, would seem to have the exemption to § 240(1). However, based on the facts above, he has engaged in the supervision, direction or control of the means and methods of the injury producing work. Thus, he is a valid defendant. The plaintiff was injured by an elevation differential and the effects of gravity. The issue here is whether or not the work was of a protected category. Here, the plaintiff was engaged in trimming a tree. A tree is neither a building nor a structure, and work performed exclusively on a tree is not a protected activity. On that basis, summary judgment would be appropriate in favor of the defendant. The plaintiff, however, will likely argue that the purpose of the work was not merely to trim the tree but also to inspect the roof and, if necessary, perform roof repairs. That said, the roof inspection had not yet begun, and there is no indication that work would have been done on the roof and the likely outcome is that summary judgment would in fact be awarded to the defendant.
In our next photo, the owner of an apartment building hires a neighbor to clean the leaves out of the gutters in the fall. The neighbor says, “No problem, I have a ladder and can do this easily. I charge $25 per hour for the job,” and the owner agrees to the price. The neighbor arrives after the owner has left for work and sets up his ladder as shown. When, shockingly, the plaintiff falls after the garbage can shifts, does he have a Labor Law § 240(1) case?
Here we have a valid plaintiff, a valid defendant, and a plaintiff injured by an elevation differential. The issue here is that the job he was doing, cleaning gutters, has been held to be routine maintenance and thus not a covered activity. Summary judgment for the defendant.
That’s it for this month, enjoy the rest of the summer and we will see you next month.
-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]
Labor Law Pointers is published the first Wednesday of each month. If you know of others who may wish to subscribe to this free publication, please feel free to forward it. If you wish to subscribe or unsubscribe, please send an e-mail to [email protected] or call the Editor/Labor Law Team Leader David R. Adams directly at (716) 849-8916.
Don’t forget to subscribe to our other publications:
Coverage Pointers: This twice-monthly electronic newsletter summarizes important insurance law decisions from appellate courts in New York State with the occasional snapshot across borders. Coverage Pointers, the electronic newsletter that started it all, continues to offer guaranteed publication every other Friday, and a read-at-a-glance summary of important decisions as they happen. Contact Dan Kohane at [email protected] to subscribe.
Medical & Nursing Home Liability Pointers: Medical & Nursing Home Liability Pointers provides the latest news, developments, and analysis of recent court decisions impacting the medical and long-term care communities. Contact Liz Midgley at [email protected] to subscribe.
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Plaintiff was allegedly injured when a piece of terra cotta coping, which was secured to a parapet wall and anchored a suspended scaffold by C-hooks, dislodged and struck him while he was working below on the suspended scaffold.
Plaintiff moved for partial summary judgment on Labor Law § 240(1) claim; Defendant and Third-Party Defendant moved for summary judgment seeking dismissal of Plaintiff’s Labor Law § 241(6) claim predicated on Industrial Code (12 NYCRR) § 23-5.8(b). The Trial Court granted Plaintiff’s motion and denied Defendant’s and Third-party Defendant’s motions.
 Labor Law § 240(1) (JLD)
The First Department affirmed the finding of summary judgment on 240(1) for the plaintiff, concluding that the coping fell because it was not adequately secured. A properly constructed scaffold could have prevented the accident. The Court distinguished this case from those which found that a permanent building fixture did not violate 240(1), because plaintiff fell not because of the coping, but because of the inadequacy of the scaffold, a safety device.
PRACTICE POINT: When preparing an opposition to plaintiff’s motion for summary judgment, be sure to clearly lay out the defenses.
 Labor Law § 241(6) (PCSM)
The First Department declined to reach the merits of the Labor Law § 241(6) claim predicated on Industrial Code § 23-5.8(b). Because plaintiffs were properly granted partial summary judgment on their Labor Law § 240(1) claim, the defendants’ arguments seeking dismissal of the § 241(6) claim were rendered academic. Accordingly, the lower court’s denial of summary judgment dismissing that claim was affirmed.
Plaintiff allegedly injured his back while lifting concrete forms after his foot slipped on rainwater and oil on the plywood floor.
The Trial Court denied Plaintiff’s motion for summary judgment pursuant to Labor Law § 240(1), granted the branch of Plaintiff’s motion for summary judgment on the issue of liability under Labor Law § 241(6) insofar as predicated on Industrial Code (12 NYCRR) § 23-1.7(d), denied the branch of Defendants' motion for summary judgment dismissing that portion of the Labor Law § 241(6) claim, and granted the branch of Defendants' motion for summary judgment dismissing the common-law negligence and Labor Law §§ 200 and 240(1) claims, unanimously affirmed, without costs.
Labor Law § 240(1) (JLD)
The First Department properly dismissed the 240(1) claim, finding that the plaintiff cannot demonstrate that his injuries were the direct result of an elevation-related hazard. He continued holding the concrete form when he slipped and injured his back, but testified that the form was halfway through the opening and he did not know why he held onto it.
PRACTICE POINT: When there is no evidence that an object fell in an uncontrolled manner, or that plaintiff’s injuries were caused in an effort to prevent an object from falling, there will be no 240(1) liability.
Labor Law § 241(6) (PCSM)
The First Department affirmed summary judgment for plaintiff on his Labor Law § 241(6) claim predicated on Industrial Code § 23-1.7(d). Plaintiff established that he slipped on rainwater and oil on the plywood floor while lifting concrete forms, demonstrating a violation of the regulation prohibiting workers from using slippery floors or passageways. Defendants failed to raise a triable issue because they offered no evidence that the rainwater and oil were inherent in plaintiff’s concrete-form work.
 Labor Law § 200 and Common-Law Negligence (RHF)
The Court determined that the presence of rainwater and oil that allegedly contributed to the accident were transient conditions that, based on the record, resulted from the means and methods by which the work was conducted.
Plaintiff was using a chipping hammer to remove concrete on the first floor at a construction project when the floor he was standing on collapsed, causing him to fall approximately 25 feet down to the basement. Prior to falling, plaintiff had tied off to a beam on the first floor, using the harness and rope that were provided to him. As he lay on the basement floor after his fall he saw that the rope had broken and that part of it was dangling from the beam above him on the first floor. At the time of plaintiff's accident he worked for E.N. Modern Style, Inc., a subcontractor that was hired by I&G Group, which, in turn, was hired by the property owner to perform demolition services at the project.
The Trial Court granted Plaintiff's motion for summary judgment on the issue of liability on his Labor Law § 240(1) claim as against Defendant I&G Group, Inc., denied I&G Group's motion for summary judgment dismissing Plaintiff's common-law negligence and Labor Law § 200 claims as against it and all contractual and common-law indemnification, contribution, and breach of contract claims against it by Defendants Park Premium Enterprise Inc. and Park Developers & Builders (collectively, the Park defendants), denied the Park Defendants' motion for summary judgment dismissing the complaint as against them and I&G Group's cross-claims for contractual and common-law indemnification and contribution against them, and denied their motion for summary judgment on their common-law indemnification and contribution claims against I&G Group.
Labor Law § 240(1) (JLD)
The First Department properly granted plaintiff’s motion for summary judgment on 240(1) as against I&G Group, which was a proper labor law defendant given it was a proper labor law defendant and defendant failed to rebut plaintiff’s testimony concerning how the accident involving rope failure occurred.
PRACTICE POINT: Always examine whether there is an argument to be made about a defendant being a proper labor law defendant. If you can make a prima facie case that they are not, plaintiff’s motion for summary judgment cannot be granted.
Labor Law § 200 and Common-Law Negligence (RHF)
The 1st Department denied I&G’s motion seeking dismissal of plaintiff’s §200 and common law negligence claims due to questions of fact regarding I&G’s actual or constructive notice of hazardous conditions, including elevation related risks and the structural integrity of the floor. The Court found I&G’s “integral to the work defense unavailing.
Indemnity Issues in Labor Law (RHF)
It was determined that there were questions of fact as to Park and I&G’s negligence sufficient to warrant denial of their motions for common law negligence cross-claims as well as their claims for contribution. The Court pointed out that contribution will apply where the parties are allegedly liable under different theories. A party is not entitled to summary judgment where issues of fact remain whether the party against whom contribution is sought was negligent.
The cross-claims of Park and I&G for contractual indemnification and breach of contract for failure to procure insurance were dismissed as the parties acknowledged that there was no contract between them.
Plaintiff was allegedly injured when an unsecured stack of windows fell on him. The stack of windows, which were leaning on their edges, were elevated 3 to 12 inches off the ground, weighed 150 to 200 pounds, and stood 96 inches high.
The Trial Court (1) denied the branches of the motions of defendants RXR SL Owner LLC (RXR Owner), RXR Realty LLC, RXR Construction & Development LLC (RXR Construction), and third-party defendant United Glass Systems that sought summary judgment dismissing Plaintiff's claims pursuant to Labor Law §§ 240(1) and 241(6); (2) denied the branches of the motions of RXR Owner, RXR Realty, and RXR Construction that sought summary judgment on their claims for contractual indemnification against second third-party defendant National Wall Corp.; (3) denied the branch of the motion of RXR Construction that sought summary judgment dismissing the third-party claims of United Glass, National Wall, and third third-party defendant Super G Construction Corporation against it; (4) denied the branch of the motion of United Glass that sought summary judgment dismissing the claims of RXR Owner, RXR Realty and RXR Construction for contractual indemnification; (5) granted the branch of the motions of RXR Owner, RXR Realty, and RXR Construction that sought summary judgment on their claims against United Glass for contractual indemnification; (6) denied the branch of the motion of National Wall for summary judgment dismissing the counterclaims against it by RXR Realty, RXR Construction, and United Glass; (7) granted the branch of the motion of United Glass for summary judgment on its claim for contractual indemnification against National Wall; (8) denied the branches of the motions of RXR Owner, RXR Realty, and RXR Construction for common-law indemnification against Super G; and (9) granted the motion of Super G for summary judgment dismissing all claims as against it.
Labor Law § 240(1) (JLD)
The First Department granted plaintiff’s motion for reargument of his motion for summary judgment on 240(1), and granted the motion upon reargument. The court concluded that summary judgment to the plaintiff was correct because a 3-12 inch high unsecured stack of windows placed the accident within the ambit of the statute.
PRACTICE POINT: What constitutes a “height” is a very low height, and the Courts will be liberal with their interpretation of that amount.
Labor Law § 241(6) (PCSM)
The First Department held that the plaintiff’s Labor Law § 241(6) claim was academic in light of the award of partial summary judgment in his favor under Labor Law § 240(1). Accordingly, the Court did not reach the merits of the § 241(6) claim or determine whether any cited Industrial Code provision was violated.
Indemnity Issues in Labor Law (RHF)
The Court denied the indemnification motions by RXR Owner and RXR Realty on the grounds that neither party was defined as “owner” in the contract(s). RXR Construction was the only entity defined as “Owner” in the contract documents. While RXR Construction was defined as the “Owner”, their motion for indemnification against United Glass was denied because the contract relied upon by RXR Construction required a showing of negligence on the part of United Glass. The trial court similarly denied the indemnification motion by United Glass against National Wall because there had been no finding that National Wall was negligent and that said negligence was a cause of the accident.
Additional indemnity claims by United Glass, National Wall and Super G were denied because (1) there was no contract between National Wall or Super G and RXR Construction; and (2) there was no indemnity provision in RXR Construction’s contract with United Glass.
Plaintiff, a stone mechanic employed by nonparty Harvard Maintenance, alleges that he was injured when a 350-pound stone panel fell and struck his head at a work site. According to plaintiff, two of his coworkers were trying to place the panel on an A-frame dolly when one of the workers lost his grip, causing the panel to slip.
The Trial Court granted Plaintiff's motion for summary judgment as to liability on his Labor Law § 240(1) claim and denied Defendants' motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.
Labor Law § 240(1) (JLD)
Plaintiff established pram facie entitled to summary judgment on 240(1) through evidence that the stone panel fell and hit him because a coworker lost his grip and he was placing the panel on a dolly. Defendant’s argument that Plaintiff walked into the panel is not supported by the record. The affidavit of plaintiff’s supervisor is not sufficient to raise an issue of fact, and the statements contained in are hearsay.
PRACTICE POINT: Although hearsay statements can be offered in opposition to a motion for summary judgment, they will not defeat the motion if they are the only evidence upon which the opposition is based.
Labor Law § 200 and Common-Law Negligence (RHF)
Plaintiff’s claims for Labor Law § 200 and common law negligence were deemed academic given the Court’s ruling that plaintiff was entitled to summary judgment on the issue of liability pursuant to Labor Law § 240(1).
Plaintiff alleged that while he was working for C&L, he was injured when he was helping carry an 800-pound electrical cabinet, or "endbox." According to Plaintiff, his supervisor instructed him to assemble a team of coworkers to move and install the endbox, and he complained to the supervisor that they lacked the proper equipment to transport it. Nevertheless, after the endbox was transported inside the property by a lift, Plaintiff and his coworkers manually carried the endbox at chest or knee height; when one of Plaintiff's coworkers tripped on a piece of protruding rebar, the endbox pinned Plaintiff against a wall.
The Trial Court Order, denied Plaintiff's motion for summary judgment regarding Labor Law § 240(1) claim; granted the motion of Defendants/Third-Party Plaintiffs/Second Third-Party Plaintiffs Noble Construction Group, LLC and 350 East Houston LLC (together, Defendants) for summary judgment insofar as it sought dismissal of Plaintiff's Labor Law § 240(1) claim; denied Defendants' motion for summary judgment insofar as it sought dismissal of Plaintiff's Labor Law §§ 241(6) and 200 claims and common-law negligence claim, and insofar as it sought judgment in Defendants' favor on their contractual indemnification claims as against Third-Party Defendant/Third Third-Party Plaintiff C & L Concrete Corp. and Second Third-Party Defendant /Third Third-Party Defendant Team Electric Inc. and Team Electric Corp. (together, Team Electric); granted Plaintiff's motion for summary judgment insofar as it sought judgment on liability on Plaintiff's Labor Law § 241(6) claim predicated on Industrial Code (12 NYCRR) § 23-1.7(e)(1); and denied Team Electric's motion for summary judgment dismissing Defendants' second third-party complaint and C&L's third third-party complaint as against Team Electric.
Labor Law § 240(1) (JLD)
Plaintiff established a prima facie entitlement to summary judgment because he demonstrated that his injuries flowed directly from the application of gravity to the endbox and a safety device should have been used to transport it. Defendants failed to raise a triable issue of fact. The fact that plaintiff’s injury was partially attributable to the coworker tripping on the rebar does not remove it from Labor Law 240(1), as the accident also arose from the failure to provide a safety device to protect plaintiff from the risks arising from an elevation differential.
PRACTICE POINT: Offering an additional theory of plaintiff’s injuries will not be enough to defeat summary judgment if the injuries also arose from a cause which gives rise to a 240(1) cause of action.
Labor Law § 241(6) (PCSM)
The First Department held that the plaintiff’s arguments concerning his Labor Law § 241(6) claim, predicated on Industrial Code § 23-1.7(e)(1), were academic because he was entitled to summary judgment on liability under Labor Law § 240(1). The Court therefore did not separately address the merits of the § 241(6) claim, leaving undisturbed the lower court’s grant of summary judgment to plaintiff on that claim.
Labor Law § 200 and Common-Law Negligence (RHF)
The Court found that the claim for summary judgment dismissing Labor Law § 200 could not be obtained due to factual issues presented by witness testimony and an Affidavit of Noble’s foreman. The proof demonstrated that there was an issue of fact regarding Noble’s involvement in moving the endbox and its control over the means and methods of the work.
Indemnity Issues in Labor Law (RHF)
The 1st Department noted that the lower court correctly denied Team Electric’s motion for contractual indemnity. However, the Court opined that the lower court should have granted conditional summary judgment on the indemnification claims. The Court found that the moving defendants failed to establish that they were free from negligence.
There were also factual questions relative to Team Electric and C&L’s involvement over the supervision of the injury-producing work. Both entities were involved in the transportation of the endbox and there was conflicting testimony regarding their respective involvement warranting a denial of their common-law indemnification and contribution claims.
In December 2023, the plaintiff moved for summary judgment on his Labor Law § 240(1) claim. In support of his motion, the plaintiff submitted, inter alia, a transcript of his deposition testimony. The plaintiff testified that he was directed by a supervisor to move a stack of doors, piled approximately seven feet high, and other garbage to a container, and that there was approximately two to three feet of snow covering the top of the stack of doors. He further testified that a supervisor directed him to climb on top of the stack of doors to remove the snow and that his request for a ladder was denied. The plaintiff testified that he climbed onto the stack and removed the snow, and while he was climbing down the stack, the doors moved, causing him to fall onto debris and the ground and be injured.
In March 2024, the defendants cross-moved for summary judgment dismissing the complaint. In support of their cross-motion and in opposition to the plaintiff's motion, the defendants submitted, among other things, an affidavit of nonparty Ricardo Morales, a supervisor on the construction project, which contradicted portions of the plaintiff's version of events.
The plaintiff then cross-moved pursuant CPLR 3126 to preclude the defendants from introducing at trial or relying on in opposition to or in support of any motion for summary judgment the testimony or affidavit of Morales, arguing that the identity of Morales as a witness was not previously disclosed, despite multiple court orders requiring such disclosure. The Supreme Court granted the plaintiff's motion and cross-motion and denied the defendants' cross-motion as untimely.
 Labor Law § 240(1) (MRV)
The Second Department held that plaintiff met his prima facie burden of demonstrating a violation of Labor Law 240(1) and that this violation was a proximate cause of his injuries by submitting his deposition testimony. At his deposition, plaintiff testified that he was instructed to climb on top of a stack of doors approximately seven feet high and that he was not provided with any safety devices to keep him from falling. Defendants failed to raise a triable issue of fact in opposition. Therefore, the lower court property granted plaintiff’s motion for summary judgment on Labor Law 240(1). The Court further held that the lower court properly granted plaintiff’s cross-motion pursuant to CPLR 3126 to preclude the defendants from introducing the affidavit of Morales at trial or in opposition to or in support of any summary judgment motion.
PRACTICE POINT: Be mindful of your dispositive motion deadline and be sure to check your Court’s part rules for any deviation from the standard 120-day rule. An untimely cross-motion may only be considered by the court where a timely motion was made on nearly identical grounds.
Labor Law § 241(6) (PCSM)
The Second Department affirmed the denial of defendants’ cross-motion for summary judgment dismissing the Labor Law § 241(6) claim as untimely. The cross-motion was filed several months after the court-imposed deadline, and defendants failed to demonstrate good cause for the delay. Because plaintiff’s timely motion addressed only Labor Law § 240(1), the untimely motion concerning § 241(6) was not made on “nearly identical grounds” and could not be considered. The Court therefore did not address the merits of the plaintiff’s § 241(6) claim.
Labor Law § 200 and Common-Law Negligence (RHF)
The Court held that defendants were not entitled to summary judgment dismissing the Labor Law § 200 and common law causes of action for the same reasons set forth above.
Plaintiff was injured while working for Ladi Construction, a subcontractor hired by the defendant Neelam Construction Corporation to perform waterproofing, demolition, and debris removal work at Long Island City High School in Queens. On the day of the accident, as the plaintiff was bent over and picking up debris from a scaffold beneath another scaffold that other demolition workers were standing on, an object struck him in the back of the head. The Supreme Court granted the plaintiff's motion for summary judgment on the Labor Law § 240(1) claim.
Labor Law § 240(1) (MRV)
In a falling object case, a plaintiff must demonstrate the existence of a hazard contemplated under Labor Law 240(1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated in 240(1). Here, the plaintiff’s submissions did not establish what object struck him or where it came from and, as such, he failed to meet his prima facie burden. Therefore, the Second Department held that plaintiff’s motion for summary judgment on 240(1) should have been denied because plaintiff’s submission demonstrated that there are triable issues of fact as to whether the accident was the result of an elevation-related hazard or gravity-related risk covered by the statute and whether the object struck plaintiff because of the absence or inadequacy of a safety device.
PRACTICE POINT: A plaintiff’s motion for summary judgment on 240(1) should be dismissed regardless of the adequacy of the opposition papers when a plaintiff fails to meet his prima facie burden. It is imperative to point out deficiencies in plaintiff’s moving papers when a plaintiff fails to establish what object struck him or from where the object came.
Plaintiff was allegedly injured while working at an elevated height at a premises owned by defendants Cudney, Zehe, Stein, and Azoff. Plaintiff commenced an action against the owners and Co Adaptive Building, LLC, a contractor hired by the owners to perform renovations, for violations of Labor Law §§ 240(1), 241(6), and 200 along with common law negligence. The owners moved to dismiss the complaint and all crossclaims asserted against them pursuant to CPLR 3211(a). The Supreme Court denied the motion.
Labor Law § 240(1) (MRV)
Accepting the allegations in the complaint as true and giving plaintiff the benefit of every favorable inference, the complaint sufficiently states a cause of action against the owners for a violation of Labor Law § 240(1). The evidence material submitted by the owners failed to establish that the plaintiff did not have a cause of action against them. The evidence submitted by the owners in support of their motion either did not constitute documentary evidence or failed to utterly refute the plaintiff’s allegation and conclusively establish a defense as a matter of law. Therefore, the lower court properly denied the owner’s motion to dismiss the Labor Law § 240(1) claim.
PRACTICE POINT: When attempting a motion to dismiss pursuant to CPLR 3211(a), be mindful of the evidentiary material you are submitting in support of your motion. A motion to dismiss under CPLR 3211(a) requires documentary evidence that utterly refutes the plaintiff’s factual allegations. Documentary evidence must be unambiguous and of undisputed authenticity. Affidavits, deposition testimony, and letters are not considered documentary evidence under the statute.
Labor Law § 241(6) (PCSM)
The Second Department held that the complaint sufficiently stated a Labor Law § 241(6) claim against the property owners based on plaintiff’s alleged injury while working at an elevated height during renovations. The owners’ submissions neither conclusively established that plaintiff had no viable claim nor utterly refuted his allegations. Accordingly, the Second Department held that dismissal under CPLR 3211(a)(1) or (7) was premature, and the § 241(6) claim was permitted to proceed.
Plaintiff allegedly was injured when he fell from a ladder while performing certain work on a barn located on property in Pound Ridge. Plaintiff commenced an action against the defendants alleging violations of Labor Law §§ 240(1) and 241(6). The defendants moved for summary judgment seeking dismissal of the complaint. The Supreme Court granted defendants motion seeking dismissal of plaintiff’s claims under Labor Law §§ 240(1) and 241(6).
Labor Law § 240(1) (MRV)
The Second Department held that the defendants established prima facie entitlement to judgment as a matter of law dismissing the § 240(1) claim by demonstrating that they did not own the property, did not contract to have work performed for their benefit, and were neither the general contractor nor agent of the owner with regard to plaintiff’s work. Plaintiff failed to raise an issue of fact in opposition.
PRACTICE POINT: To utilize the homeowner’s exemption to liability under § 240(1), you must establish that the work was related to the residential use of the home and that defendant did not direct or control the work. When making this argument, consider whether the area being worked on is an “extension of the dwelling” with a substantially residential purpose to take a slightly broader approach to the exemption.
Labor Law § 241(6) (PCSM)
The Second Department affirmed the lower court’s dismissal of the Labor Law § 241(6) claim against both defendants. The court determined that Allen J. Reyen, Inc. was not a proper statutory defendant because it neither owned the property nor acted as a general contractor or owner’s agent with authority to supervise or control plaintiff’s work. The court further held that Reyen, the individual homeowner, was protected by the one- and two-family homeowner exemption because the barn functioned as an extension of the dwelling, the work served a substantially residential purpose, and he did not direct or control the work.
Plaintiff was allegedly injured while working on a project to replace skylights at a home owned by the Polaners when the lift on which plaintiff was working tipped over, causing him to fall off. The Polaners retained Malcarne Constracting, Inc. to serve as the general contractor on the project. Malcarme then retained plaintiff’s company, Francisco Remodeling, as a subcontractor to perform the subject work.
Plaintiff commended this action to recover damages for personal injuries against, among other, the Polaners for common-law negligence and violations of Labor Law §§ 200 and 240(1). The Polaners moved for leave to amend their answer to assert the affirmative defense of release and to dismiss the case pursuant to CPLR 3211(a)(5). In support of the motion, the Polaners submitted an agreement between Malcarne and Francisco Remodeling with a provision stating “[i]f contractor is injured in the course of performing the specific work, Homeowner shall be exempt from liability for those injures to the fullest extent allowed by law.” The Polaners argued that this language constituted a release that relieved them from any liability for injuries sustained by plaintiff on the subject project. The Supreme Court denied the Polaners’ motion.
Labor Law § 240(1) (DRA)
Well, as this was my case I was elected to do the write up. Here the landowner had prepared a “waiver of liability” which was against public policy because, in the words of the court, the "Liability Waiver" provision may be read as absolving the Polaners of liability for a cause of action alleging a violation of Labor Law § 240(1), that provision is void as against public policy, since it would negate the purpose of Labor Law § 240(1) which imposes on owners or general contractors and their agents a nondelegable duty, and absolute liability for injuries proximately caused by the failure to provide appropriate safety devices to workers who are subject to elevation-related risks”.
PRACTICE POINT: Please note that a liability waiver is very different than an indemnity agreement or an additional insured obligation. The issue with the waiver is that it attempted to eliminate the liability of the property owner, not to shift it to another entity through indemnity or contribution, which is commonly done via contractual claims or additional insured methods of Risk Transfer.
The plaintiff sustained injuries while performing construction work on premises owned by the defendants City of New York, New York City Department of Education, and New York City School Construction Authority hired by defendant E.W. Howell Co. as the general contractor. The general contractor then hired the plaintiff’s employer to perform construction work. Plaintiff was standing near a portable propane heated on the premises when he sustained burns to the back of his leg.
Plaintiff commenced this action alleging violations of Labor Law §§ 200 and 241(6). After trial, the jury determined that the defendants violated Labor Law § 200 and certain Industrial Code provisions, but that such violations were not a proximate cause of the plaintiff’s injuries.
Plaintiff moved to set aside the jury verdict pursuant to CPLR 4404(a) as inconsistent and contrary to the weight of the evidence. The Supreme Court denied plaintiff’s motion.
Labor Law § 241(6) (PCSM)
The Second Department upheld the jury’s dismissal of the Labor Law § 241(6) claim. the court held that although the jury found that defendants violated Industrial Code §§ 23-1.14(b)(1)(iii) and (v) by failing to post required flammable-gas warning signs and have a designated person present while the propane heater was operating, it reasonably found that those violations did not proximately cause the accident. the Second Department ultimately held that based on the conflicting testimony and credibility determinations, the jury could reasonably conclude that the accident was caused solely by plaintiff’s improper operation of the heater, finding the verdict neither inconsistent nor contrary to the weight of the evidence.
Labor Law § 200 and Common-Law Negligence (RHF)
The Second Department held, contrary to plaintiff’s contention, that the issues of negligence and proximate cause were not inextricably linked. The jury could have reasonably concluded that while the defendants were negligent for failing to provide the injured plaintiff with a safe place to work and for violating the Industrial Codes referenced above, the accident was caused solely by the conduct of the injured plaintiff in improperly turning on the heater. Since the finding that the defendants were negligent can be reconciled with the finding that the defendants’ negligence was not a substantial factor in causing the accident, the jury is, therefore, presumed to have adopted that view of the evidence.
Plaintiff commenced this action seeking damages for injuries he allegedly sustained while he was making fuel lines at night in preparation for an emergency repair of a water line owned and operated by the Erie County Water Authority (ECWA). Plaintiff alleges he was injured when he fell into an excavated hole that was unmarked and unguarded. The property was owned by Militello Farms and ECWA hires defendant Russo Development to perform the emergency water line repair work.
Plaintiff asserted causes of action for common law negligence and violations of Labor Law §§ 240(1), 241(6), and 200. Militello and Russo each moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment on §§240(1) and 241(6). The Supreme Court granted Militello’s motion, denied Russo’s motion in part, and denied plaintiff’s cross-motion.
Labor Law § 240(1) (MRV)
The Fourth Department held that the lowered court erred in granting Russo’s motion as to Labor Law § 240(1), but affirmed the lower court’s denial of plaintiff’s motion on 240(1). The lower court erred in concluded that 240(1) categorically excludes the type of accident that occurred here—a fall into an open and unmarked hole. Given that the excavated hole on the property was the purpose of the work being performed, that plaintiff was not provided with safety devices to protect him from a fall, and that the undisputed evidence established that an excavated hole should not have been left open or unattended at night, plaintiff’s injuries did not occur from the usual and ordinary dangers of a construction site. However, plaintiff’s motion raises questions of fact by providing divergent accounts of the manner in which the accident occurred, particularly with respect to the timeline of events leading up to the accident and the precise mechanism of plaintiff’s injuries.
PRACTICE POINT: A mere hole in the ground may constitute a usual and ordinary danger of a construction site as a defense to liability under 240(1). However, that is not the case where the hole was deliberately created in connection with the subject work.
Labor Law § 241(6) (PCSM)
The Fourth Department dismissed the Labor Law § 241(6) claim predicated on Industrial Code § 23-1.7(d), finding that the mud on which plaintiff allegedly slipped was not a “foreign substance.” Rather, it was part of the work surface and inherent in repairing the broken water line.
However, the Fourth Department allowed the § 241(6) claim predicated on § 23-1.7(b)(1)(i)–(iii) to proceed, finding that the regulation applies to hazardous openings of significant depth and size, and that Russo’s submissions raised factual issues as to whether it created the uncovered and unmarked excavation into which plaintiff fell.
Labor Law § 200 and Common-Law Negligence (RHF)
The Fourth Department held that the Supreme Court properly granted that part of Militello’s motion with respect to common-law negligence and Labor Law § 200. Militello met its initial burden of establishing that it lacked both control over the worksite and either actual or constructive notice of the dangerous condition. Additionally, the lower court properly denied Russo’s motion on common-law negligence and Labor Law § 200 because there were diverging accounts with respect to the timeline of the repair work that was performed on the night of the accident. Therefore, there were issues of fact as to whether Russo arrived at the worksite before plaintiff and dug the hole plaintiff allegedly fell into and whether Russo exercised general control over the worksite to remedy any perils presented by the open excavation.
Plaintiff commended this Labor Law and common law negligence action seeking damages for injuries sustained when a steel grate fell five to eight feet from a catwalk and struck plaintiff. At the time the grate fell, the catwalk was being hoisted by plaintiff’s coworkers using an aerial lift machine to permit plaintiff to secure the catwalk to a dust collector. Plaintiff moved for summary judgment on Labor Law 240(1) and the lower court granted plaintiff’s motion.
Labor Law § 240(1) (MRV)
The Fourth Department held that the lower court properly granted summary judgment in favor of plaintiff on 240(1) because plaintiff established that the defendants were owners for the purposes of the statute, defendants violated the statute, and that violation was a proximate cause of plaintiff’s injuries. Plaintiff established that the grate was a falling object, that the object was being hoisted or secured at the time it fell, and the object fell fur to the absence or inadequacy of a safety device.
 New York Industrial Code Regulations (EDA)
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Regulation § 23–1.28 Hand-propelled vehicles
(d) Curbing.
Curbing at least six inches in height shall be provided along edges over which material or debris is dumped from a hand-propelled vehicle to a lower level.
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Regulation § 23–1.28(d) is likely sufficiently specific to support a Labor Law § 241(6) cause of action as it provides specific and particular actions to take and/or avoid.
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No Appellate Court has ruled on the specificity or application of Regulation § 23–1.28(d) to date.
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Labor Law Pointers
Editor
David R. Adams
Associate Editor
Eric D. Andrew
Associate Editor
Patrice C. S. Melville
Associate Editor
Ashley M. Cuneo
Associate Editor
Robert H. Flynn
Associate Editor
Jessica L. Deren
Associate Editor
Marten R. Violante
Labor Law Team
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David R. Adams, Team Leader
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Patrice C. S. Melville
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Brian F. Mark
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Elizabeth K. Ognenovski
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Robert H. Flynn
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Joseph P. Mendoza
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