▶ Decisions on electric shock
▶ "Repairs" versus routine maintenance
▶ Homeowner exemption and agents' interest
▶ Contracts and recovery against co-defendants
▶ Early investigation and prediscovery summary judgment
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GUERRERO V.
168 A.D.3d 408 (January 3, 2019)
The plaintiff alleged he was injured when the scaffold he was using shifted from side to side causing his leg to fall into the gap between the scaffolding and the adjacent building. The plaintiff’s motion for summary judgment on Labor Law § 240(1) was denied based upon an issue of fact, created by the plaintiff’s foreman, who testified that when the plaintiff informed him of the accident he claimed his leg was injured while lifting equipment.
PRACTICE NOTE: Thorough and early investigation of construction accidents usually leads to useful information in defending against these types of claims.
TOPICS: Labor Law § 240(1), Burden of proof
168 A.D.3d 408 (January 3, 2019)
The plaintiff was injured while washing windows on a suspended scaffold when one end of the scaffold suddenly dropped out from under him and stopped at an angle causing materials on the other end of the scaffold to crash down on him. In granting the plaintiff’s summary judgment on his Labor Law § 240(1) claim, the court noted the tilting or collapse of the scaffold was prima facie evidence of a violation of the statute and the plaintiff was not required to show a specific defect.
PRACTICE NOTE: Evidence of a collapsing safety device will result in a Labor Law § 240(1) finding.
TOPICS: Labor Law § 240(1), Gravity-related risk
2019 N.Y. Slip Op. 00690 (January 31, 2019)
The plaintiff fell from the seventh floor to the sixth floor of a building where he was working. It was undisputed that there were no safety harnesses or other safety devices available for the plaintiff to use. In granting the plaintiff’s summary judgment on his Labor Law § 240(1) claim, the court noted it was irrelevant that multiple versions of events existed because under any version, the defendants failed to secure an area at a construction site from which a fall could occur, thus exposing the worker to an elevation-related risk. In contrast, the court noted the different versions of events
did create an issue of fact sufficient to prevent granting the defendants summary judgment dismissing the § 241(6) and § 200 claims.
PRACTICE NOTE: In cases where more than one version of events is provided, the court will still grant the plaintiff summary judgment if each version still falls within the ambit of Labor Law § 240(1).
TOPICS: Labor Law § 240(1), Gravity-related risk, Burden of proof
PENZA V. QUOOHS
169 A.D.3d 505 (February 14, 2019)
The plaintiff was hired to remove trees along the property line between the defendants. He was injured when he fell from the roof of the neighbor defendants’ third-floor terrace while removing trees. The Labor Law § 240(1) and § 241(6) claims were dismissed on the grounds that the plaintiff was not hired by the defendants to perform the work. Further, the neighbors did not direct or supervise the manner or method of the plaintiff’s work, and would not decide if the tree removal had been completed satisfactorily. Additionally, record established that the neighbor defendants had not permitted access to the third-floor terrace.
PRACTICE NOTE: Labor Law did not apply to the neighboring defendants―even though the accident occurred on their property―because they did not employ the plaintiff or control the means and methods of the work being performed.
TOPICS: Elevation-related hazard, Manner and method, Labor Law § 240(1)
MITCHELL V. CITY OF NEW YORK
169 A.D.3d 505 (February 14, 2019)
The plaintiff was injured when he fell from an extension ladder. Summary judgment was granted in favor of the defendants on the Labor Law § 240(1) and § 241(6) claims because the ladder was properly secured, non-defective, and did not malfunction. Further, the ladder was placed in compliance with 12 NYCRR 231.21(b)(4)(i).
PRACTICE NOTE: Falling from a ladder alone is not sufficient evidence to establish liability under Labor Law § 240(1), when the ladder was not defective.
TOPICS: Elevation-related hazard, Fall from ladder, Industrial Code regulations
169 A.D.3d 555 (February 21, 2019)
The plaintiff was injured when he fell from a scaffold while working on a home renovation project in Westchester County. The plaintiff and all defendants are Connecticut residents. The defendant entered into a substantial contract to perform work in New York, which requires compliance with New York worker safety law. The plaintiff was permitted to designate any county for venue because none of the parties were a resident of New York. The court denied the defendant’s motion to dismiss under CPLR § 327(a) (inconvenient forum) and held Labor Law exists to protect construction workers laboring in New York and that the burden on the courts is minimal given that the action involved the application of New York law.
PRACTICE NOTE: Out-of-state workers injured while laboring in New York are protected under Labor Law and can bring an action in New York State.
TOPICS: Application of Labor Law, Forum non conveniens, Change of venue
170 A.D. 3d 431
(March 2, 2019)
The plaintiff was injured when he fell from an unsecured ladder while installing a light fixture. To complete the work, he was forced to install a portion of the light fixture by standing on display cases approximately 20 feet high, and then return to the top of the ladder to finish the remaining installation. While attempting to maneuver himself into position on the ladder, he lost balance and fell. In granting the plaintiff’s summary judgment on Labor Law § 240(1), the court held that whether the ladder shook prior to his fall was of no importance because the ladder was an inadequate safety device for the work being performed.
PRACTICE NOTE: Labor Law § 240 will be granted to the plaintiff when they are provided with a safety device that is inadequate for the work to be performed.
TOPICS: Labor Law § 240, Ladder, Adequacy of safety device
170 A.D.3d 415 (March 5, 2019)
The plaintiff was injured when his ladder fell over while using it at defendant’s building. At the time of the accident, the plaintiff was opening a splice box affixed to a wall to splice telephone wires as part of a service call for a customer. The plaintiff was not entitled to relief under Labor Law § 240(1) because he was not engaged in a construction-related activity at the time of accident, but was instead engaging in routine maintenance.
PRACTICE NOTE: The claim is determined on if the plaintiff is engaged in “covered work” at the time of the accident for Labor Law § 240.
TOPICS: Covered work, Application of Labor Law, Routine maintenance
179 A.D.3d 491 (March 12, 2019)
The plaintiff was injured in a construction debris slip and fall while walking down a ramp where work was being performed. Labor Law § 200 was dismissed after establishing the general contractor was not responsible for the site at the time of the accident and the location was clear of debris when the contractor left the site prior to the accident. Accordingly, the general contractor neither created, nor had constructive notice of the dangerous condition.
PRACTICE NOTE: To hold a general contractor liable under Labor Law § 200 on a theory of dangerous or defective condition, it must be clear that the general contractor was responsible for the worksite and either created or had notice of the alleged condition.
TOPICS: Labor Law § 200, Common-law negligence, Dangerous condition, Responsibility for worksite
170 A.D.3d 509 (March 14, 2019)
The plaintiff, a carpenter who sustained an electric shock from an exposed wire while working to install pins that would suspend an interior ceiling, was granted summary judgment on his Labor Law § 241(6) claim premised upon 12 NYCRR 23-1.13(b)(3) and (4). He claimed that he sustained an electric
shock due to exposed, uncapped electrical wiring hanging from the ceiling where he was working. The employer’s testimony stated he was on the scene 20 to 30 minutes after the accident, and did not observe any uncapped wires or anything unusual, was to no avail.
PRACTICE NOTE: The court will find a 241(6) violation even if there are other versions of the incident as long as those versions fall squarely within the industrial code allegedly violated.
TOPICS: Labor Law § 241(6), Industrial Code violation, Manner and method, Sufficiency of proof
MORA V. WYTHE AND KENT REALTY LLC
171 A.D.3d 426 (April 2, 2019)
The plaintiff was injured when he stepped on an uneven scaffold plank that tipped. The court granted the plaintiff’s summary judgment motion on his Labor Law § 240(1) claim finding he was not provided with proper safety devices.
PRACTICE NOTE: The recalcitrant worker defense will be rejected when a statutory violation is the proximate cause of an injury. A plaintiff cannot be found solely to blame for his accident when a violation proximately caused his injury.
TOPICS: Recalcitrant worker, Labor Law § 240, Sole proximate cause
171 A.D.3d 411 (April 2, 2019)
The plaintiff was injured when he fell while insulating air conditioning ducts. There were two versions of the incident: 1) the plaintiff had no recollection of the fall 2) he claimed he fell from an A-frame ladder that moved, based on what his foreman told the plaintiff’s wife. The foreman testified that the plaintiff fell from a scaffold. The plaintiff was entitled to Labor Law § 240(1) recovery because although there were two versions of the accident, under both versions an inadequate safety device caused his fall.
PRACTICE NOTE: If the record is clear that a safety device did not prevent a plaintiff from falling, an inability to identify the precise manner in which the plaintiff fell is immaterial.
TOPICS: Elevation-related hazard, Safety devices, Labor Law § 240
171 A.D.3d 427
(April 2, 2019)
The plaintiff was injured when he was pinned to the wall by a motorized hydraulic drill lift he was operating. The court affirmed summary judgment in favor of the moving defendants on the plaintiff’s common law negligence and Labor Law § 200 claims because they established that they did not control the method and means of work that the plaintiff was performing. The plaintiff was employed by a third-party defendant and testified that he never took direction from representatives of the moving defendants.
PRACTICE NOTE: In a manner and method claim, the defendant must have supervised or controlled the plaintiff’s work.
TOPICS: Manner and method, Labor Law § 200
171 A.D.3d 416 (April 2, 2019)
The plaintiff, an employee of a removal service company, was injured while unloading a twoton steel plate at a construction site. Under a contract, the removal service routinely unloaded steel plates to the site for purposes of covering excavated areas for electrical work. It also provided ancillary services to other tasks under the scaffold law, such as removing construction-related debris. The court held the plaintiff was performing work covered under the scaffold law.
PRACTICE NOTE: To determine if Labor Law applies, the court will look to see if the injured worker’s tasks were providing support or ancillary services to the construction work at an accident site.
TOPICS: Covered work, Labor Law § 240
171 A.D.3d 474
(April 4, 2019)
The plaintiff claimed he was injured after a slip and fall on stairs because he was directed by an unidentified man to remove his boots while working. Labor Law § 200 claims were dismissed on the grounds that the defendant homeowners did not exercise supervisory control over the means and methods of the plaintiff’s work, were not home on the day of
the accident, and never asked any workers to remove their boots. The plaintiff initially refused to remove his boots until his employer warned that he would be fired if he did not do so, establishing that the employer had supervisory control over the injury-producing work. Further, the plaintiff slipped solely because he was wearing socks and the stairs were not in a dangerous condition.
PRACTICE NOTE: In Labor Law § 200 claims, there must be a finding that the defendant exercised supervisory control over the injuryproducing work.
TOPICS: Manner and method, Authority or control over work, Homeowner exemption
171 A.D.2d 543 (April 16, 2019)
The plaintiff was injured when demolishing a sidewalk bridge at the defendants’ premises, when a nail that he was attempting to remove, struck his eye. The court determined that the application of Industrial Code 12 NYCRR 23-1.8(a) as it addresses eye protection is a jury question.
PRACTICE NOTE: The issue of whether demolishing a sidewalk bridge and removing nails are activities covered under Industrial Code 12 NYCRR 23-1.8(a) is an issue of fact.
TOPICS: Labor Law § 241(6), Eye protection, Demolition
171 A.D.3d 600 (April 23, 2019)
The plaintiff was granted summary judgement to his Labor Law § 240(1) claim because a complete fall from a scaffold was not necessary to establish liability under this section. However, the plaintiff’s § 241(6) premised upon 12 NYCRR 23-5.3(e) was dismissed as the scaffold at issue was less than seven feet in height.
PRACTICE NOTE: Labor Law § 240(1) does not solely apply to falls from a scaffold or ladder, the safety device need only shift or move in some way without a complete fall for liability to attach.
TOPICS: Labor Law § 240(1), Labor Law § 241(6), Industrial Code violation
AVENUE, LLC
171 A.D.3d 605 (April 23, 2019)
The plaintiff was injured when he fell from an unstable ladder that collapsed while he was painting. Labor Law § 240(1) did not apply because there were triable issues of fact as to the circumstances surrounding the accident, including what ladder the plaintiff was using when he fell.
PRACTICE NOTE: On summary judgment, all issues of fact must be eliminated even in an apparent case of liability under § 240(1).
TOPICS: Burden of proof, Prima facie burden, Elevation-related hazard
UZEYIROGLU, ET AL. V. EDLER ESTATE CARE INC.
171 A.D.3d 663 (April 30, 2019)
The plaintiff was injured when he fell off a ladder while working at a residential property. The court held that the plaintiff failed to establish that the defendant had the ability to control or stop the work of the plaintiff’s employer. The evidence established that the defendant was hired to supervise the project, but the defendant did not hire, retain, or pay any of the contractors. The agreement between the defendant and the homeowner did not specifically confer any authority to the defendant to stop work if an unsafe condition was observed. The defendant’s site supervision responsibilities only included supervising “day-to-day operations” of the site and trades. There were issues of fact as to whether supervision of safety conditions was part of these responsibilities.
PRACTICE NOTE: To be found a general contractor for purposes of establishing liability pursuant to Labor Law § 240(1), a plaintiff must show that a party had the ability to control the activity bringing about the injury and the authority to correct unsafe conditions.
TOPICS: General contractor, Control over work, Elevation-related hazard
ROSSI V. 140 WEST JV MANAGER LLC
171 A.D.3d 668 (April 30, 2019)
The plaintiff was injured when he tripped and fell over demolition debris. At the time of accident, he was walking along the only route he could take to his work area. The court affirmed
that Industrial Code provisions concerning tripping hazards in passageways and working areas provide a basis for Labor Law liability.
PRACTICE NOTE: A plaintiff who falls on debris in an area that is, by definition, a passageway because it is the only route available, will be able to establish § 241(6) liability.
TOPICS: Labor Law § 241(6), Industrial Code violation
172 A.D.3d 424
(May 2, 2019)
The plaintiff, a plumber who was injured when he received an electrical shock causing him to fall from a folded A-frame ladder that he leaned against a wall to perform his work. The defendants opposed the plaintiff’s summary judgment motion arguing that the electric shock precluded a Labor Law finding because the shock was the proximate cause of the accident, rather than the effects of gravity. The court found there is no exception to Labor Law for accidents that occur due to an electric shock and also specifically noted the ladder as used in this manner did not protect the worker from his fall.
PRACTICE NOTE: The court distinguished this matter from Nazario v. 222 Broadway, LLC, where he was shocked while using a properly set-up ladder and his accident occurred as a result of the force of the electric shock propelling him. There was dissent in this matter reasoning as to why this accident should not have come within the purview of Labor Law § 240(1).
TOPICS: Labor Law § 240(1), Protected activities, Gravity-related risk
172 A.D.3d 450 (May 7, 2019)
The plaintiff was injured when a cable tray that was on top of two ladders, fell and struck him. The owner was liable under Labor Law § 240 because the tray was an object that required securing to prevent it from falling. The distance that the tray fell was not de minimus and the harm to the plaintiff was the direct consequence of the application of the force of gravity. (citing, Runner v. NYSE)
PRACTICE NOTE: When a plaintiff sustains a gravity-related injury, Labor Law § 240 will apply
if the falling object is required to be secure to prevent it from falling.
TOPICS: Gravity-related risk, Falling object, Labor Law § 240
172 A.D.3d 456 (May 7, 2019)
The plaintiff was injured when a pipe saddle detached from an overhead ceiling pipe assembly fell and struck him. Labor Law § 240(1) did not apply because the saddle was not an object that needed securing, but was a permanent part of the structure.
PRACTICE NOTE: Labor Law § 240(1) may not apply when a falling object is a permanent part of a structure and does not require securing.
TOPICS: Labor Law § 240(1), Permanent fixture
172 A.D.3d 467 (May 7, 2019)
The plaintiff was injured when he slipped and fell on brown protective paper installed on the floor of an apartment that was under construction. The plaintiff alleged that the paper was torn, dirty, and not properly secured. The paper was slippery because it was on top of “Green Dust,” a cleaning agent to prevent dust from escaping into the air while sweeping. There were issues of fact regarding whether the presence of Green Dust on the floor created a slipping hazard under 12 NYCRR 231.7(d), which resulted in the court denying the plaintiff’s Labor Law § 241(6) claim.
PRACTICE NOTE: An Industrial Code violation must be sufficiently specific and be the proximate cause of the accident.
TOPICS: Labor Law § 241(6), Industrial Code violation
172 A.D.3d 518 (May 14, 2019)
A painter fell to his death while standing on a radiator casing in front of an open window in order to strain exterior window jambs during a complex renovation. The court found that the homeowners’ exemption to liability under Labor Law § 240 and § 241(6) applicable because the homeowners did not direct or control the
work in their cooperative apartment, and they intended the premises for personal use.
PRACTICE NOTE: The single-family homeowners’ exemption to liability under the scaffold law applies when the owners do not direct or control work, and the premises is intended for their personal use.
TOPICS: Homeowner exemption, Labor Law § 240, Labor Law § 241(6)
HERNANDEZ V. 601 WEST ASSOCIATES
172 A.D.3d 548 (May 21, 2019)
The plaintiff was injured while pushing a refrigerator up a set of stairs, from the basement of the premises, when the rope holding the refrigerator to a hand truck he was using broke. Although there was construction activity in other parts of the building at the time, the plaintiff was not engaged in that work. The defendant was granted summary judgment dismissing the plaintiff’s Labor Law § 240(1) and § 241(6) claims when the court found that the plaintiff was not engaged in a protected activity.
PRACTICE NOTE: For a plaintiff to recover under the Labor Law, he must be engaged in an enumerated activity such as demolition, construction, alteration, pointing, or industrial cleaning when his accident occurs.
TOPICS: Protected activities, Application of Labor Law, Alteration or repair
172 A.D.3d 614 (May 28, 2019)
The plaintiff occasionally worked as a handyman for defendants and was injured when he fell from a six-foot A-frame ladder when he was climbing to fix a leak from the ceiling. The court held that the plaintiff was engaged in routine maintenance rather than “repairing.” Therefore, he was not protected by Labor Law § 240(1).
PRACTICE NOTE: Even at elevated positions, routine maintenance is not protected under the statute.
TOPICS: Elevation-related hazard, Protected activities, Routine maintenance
172 A.D.3d 616 (May 28, 2019)
The plaintiff was employed by a sheetrockand-taping subcontractor and sustained injuries when the scaffold he was using― which lacked safety rails―tipped over when its locked wheel broke through the floor it was situated upon. The court granted the plaintiff’s summary judgment motion premised upon Labor Law § 240(1) based upon the fact that the scaffold failed to protect him from a gravity-related risk. The court also granted summary judgment to the owner and general contractor for contractual indemnification from the plaintiff’s employer since the contract required indemnification for personal injuries arising from their work, the owner and general contractor had no involvement with the plaintiff’s work, and their liability was strictly vicarious.
PRACTICE NOTE: Under Labor Law § 240(1), there is no need to show that the safety device was defective unless it is required to show the safety device failed to protect the plaintiff from a foreseeable gravity-related risk.
TOPICS: Labor Law § 240(1), Defective or inadequate safety equipment, Proper safety device, Contractual indemnification
2019 WL 2291607 (May 30, 2019)
The plaintiff was injured when he was struck in the back by a power buggy after an operating engineer on a construction site attempted to move the buggy. The court found that Industrial Code 12 NYCRR 23-9.9(a) prohibits individuals other than trained and competent operators designated by the employer from operating a power buggy was sufficiently specific to support the Labor Law § 241(6) claim. The plaintiff was able to establish that the buggy operator admitted he was “horse playing” at the time of accident and it was undisputed that the operator was not the designated operator of the power buggy.
PRACTICE NOTE: Labor Law § 241(6) is dependent on the application of a specific Industrial Code provision and a finding that the violation of the provision resulted in negligence.
TOPICS: Labor Law § 241(6), Industrial Code violation
CONTRERAS V. 3335 DECATUR AVENUE CORP.
2019 N.Y. Slip Op. 04663 (June 11, 2019)
The plaintiff was provided with a hand-held grinder with the safety guard removed and an oversized blade installed within it by his employer. While using the grinder, it kicked back injuring the plaintiff. The plaintiff brought a claim under Labor Law § 241(6) claiming a violation of 12 NYCRR 23-1.5(3), which requires all equipment to be kept in sound and operable condition and discarded if they are not. The defendant’s motion for summary judgment was denied and the court found issues of fact existed as to whether the defendants provided reasonable and adequate protection and safety. The court specifically noted 12 NYCRR 23-1.5(3) was sufficiently specific to support a violation of § 241(6).
PRACTICE NOTE: When analyzing a § 241(6) claim under this section of the Labor Law, pay careful attention to any alterations of the tools or safety equipment used by the plaintiff.
TOPICS: Labor Law § 241(6), Industrial Code violation
VUCETIC V. NYU LANGONE MEDICAL CENTER
2019 N.Y. Slip Op. 04868 (June 18, 2019)
The plaintiff was performing insulation work when the A-frame ladder he was using collapsed beneath him. The court upheld the award of summary judgment on the Labor Law § 240(1) claim. The court held that the record showed that the safety devices provided to the plaintiff did not properly protect him from an elevation-related hazard. The plaintiff was not the sole proximate cause of the accident because he was following his foreman’s directions.
PRACTICE NOTE: The failure to provide adequate equipment can serve as the prima facie basis for summary judgment. A plaintiff is not the sole proximate cause of his accident if he is following his employer’s instructions.
TOPICS: Elevation-related hazard, Safety equipment, Sole proximate cause
2019 WL 2527607 (June 20, 2019)
The plaintiff fell off a roof of a building while installing metallic roof edging or gravel stops and established a prima facie violation of Labor Law § 240 through testimony that no safety devices were provided. The court determined that the defendant property manager was not an agent of the owner in the construction work and was entitled to dismissal of Labor Law claims. The property manager was not involved in the construction work and its duties were limited to collecting rent and upkeep of the premises.
PRACTICE NOTE: An agent of an owner will be found to have interest in the property and a role in the construction project.
TOPICS: Agent of owner
168 A.D.3d 711
(January 9, 2019)
The plaintiff fell from a scaffold while performing the construction of a restaurant and commenced an action alleging violations of Labor Law § 200, § 240(1), and § 241(6) against the lessees and construction manager. The court held that although a construction manager is generally not responsible under Labor Law § 200, § 240(1), or § 241(6) unless it functions as an agent of the property owner or general contractor with the ability to control the activity which produced then plaintiff’s injury. The evidence showed that the construction manager was listed as an agent of the owner in its contract and that it issued directives, clarifications and notices, as well as monitored the worksite creating an issue of fact.
PRACTICE NOTE: In the Second Department, the authority or ability to control the work that brought about the plaintiff’s injury, not the actual exercise of that authority (as in the First Department), can lead to liability under Labor Law § 200, § 240(1), or § 241(6).
TOPICS: Authority or control over work, Burden of proof, Manner and method
168 A.D.3d 717
(January 9, 2019)
The plaintiff was injured when an excavator slid or tipped into a creek while working at the defendant’s job site. The court held that plaintiff pleaded viable claims since Labor Law section 200 contains two broad categories: injuries arising from a dangerous or defective condition at the worksite, which requires that the owner created or had notice of the condition, and injuries arising out of dangerous or defective equipment at the worksite, which requires evidence that the defendant had the authority to supervise or control the means and methods of the work. Since the defendant failed to demonstrate that it did not have notice and that it did not have the authority to supervise and control the work, the motion for summary judgment was reversed.
PRACTICE NOTE: The court’s decision gives a good explanation of liability under Labor Law § 200.
TOPICS: Burden of proof, Prima facie burden, Means and method, Direct and control work
168 A.D.3d 778 (January 9, 2019)
The plaintiff suffered burns while demolishing a concrete wall and sued the property owner, general contractor, and resident engineer alleging violations of Labor Law § 200, § 240(1) and § 241(6). The matter proceeded to a jury trial solely on the plaintiff’s § 241(6) cause of action. At trial, the plaintiff’s co-worker testified that he was unable to find a fire extinguisher nearby. The jury found that the defendants violated 12 NYCRR 12-1.8(c)(1)(iii), which requires fire extinguishers to be placed one per every 2,500 square feet of a floor, but that the violation was not the proximate cause of the plaintiff’s injury. On appeal, the court found that the evidence demonstrated a valid line of reasoning that could lead to the conclusion that the lack of a fire extinguisher was not the proximate cause of the plaintiff’s injuries.
PRACTICE NOTE: In addition to arguments about the facts of the accident, causation and proximate cause must be considered and argued under the Labor Law.
TOPICS: Industrial Code regulations, Industrial Code violation, Prima facie burden
LORETTA V. SPLIT DEVELOPMENT CORP.
168 A.D.3d 823 (January 16, 2019)
The plaintiff was installing plumbing at a single family home when he fell from an A-frame ladder. He commenced an action alleging a violation of Labor Law § 240(1) and the court denied the plaintiff’s motion for summary judgment on the ground that factual issues regarding the manner in which the accident occurred precluded summary judgment.
PRACTICE NOTE: The court found issues of fact due to the plaintiff’s testimony that he could not recall if he was twisting a pipe at the time of the accident. Thus, it is crucial to examine the plaintiff’s account of the accident when analyzing a Labor Law claim.
TOPICS: Fall from ladder, Elevation-related hazard, Burden of proof, Labor Law § 240
PACHECO V. RECIO
168 A.D.3d 867 (January 16, 2019)
The plaintiff fell from an A-frame ladder while holding a piece of sheetrock. Labor Law § 240(1)
was not applicable due to the plaintiff’s deposition testimony that the ladder was not defective or inadequate, and that plaintiff merely lost his balance.
PRACTICE NOTE: For the plaintiff to succeed on a Labor Law § 240(1) claim, there must be a finding of a defective safety device or lack of protection.
TOPICS: Fall from ladder, Elevation-related hazard, Burden of proof, Labor Law § 240
RAMOS-PEREZ V. EVELYN USA, LLC
168 A.D.3d 1112 (January 30, 2019)
The plaintiff was injured when a pallet of flooring material fell off a hydraulic lift and struck him. The court held that dismissal of the plaintiff’s Labor Law § 240(1) claim was inappropriate because the plaintiff demonstrated that the material was not secured as it was being lowered which is sufficient to meet the prima facie burden under Labor Law § 240(1).
PRACTICE NOTE: The lack of an appropriate safety device will likely meet the prima facie burden under Labor Law § 240(1).
TOPICS: Falling object, Prima facie burden, Burden of proof, Failure to provide protection, Labor Law § 240
VICUNA V. VISTA WOODS, LLC
268 A.D.3d 1124 (January 30, 2019)
The plaintiff was performing roofing work when he fell from a ladder. The court held that the plaintiff was entitled to summary judgment on his Labor Law § 240(1) claim based upon his unrebutted testimony that the ladder he was working on shifted for no apparent reason.
PRACTICE NOTE: A plaintiff can recover under § 240(1) even if he or she has no corroborating evidence for his or her accident absent evidence in the record to dispute the plaintiff’s testimony.
TOPICS: Burden of proof, Fall from ladder, Labor Law § 240(1)
GUEVARRA V. WRECKERS REALTY, LLC
169 A.D.3d 651 (February 6, 2019)
The plaintiff was sweeping the floor when a piece of a skid loader being used to hoist a car engine broke and fell on him. Labor Law § 240(1)
and § 241(6) did not apply as the plaintiff was not performing a protected activity and the sweeping was merely routine maintenance. The plaintiff’s common law negligence claim was also dismissed since the defendant did not control the activity causing injury.
PRACTICE NOTE: A plaintiff must be performing a protected activity under § 240(1) and § 241(6), such as an alteration, construction or demolition, for the statues to apply.
TOPICS: Routine maintenance, Protected activities, Alteration or repair
PASSOS V. NOBLE CONSTRUCTION GROUP, LLC
169 A.D.3d 706
(February 6, 2019)
The plaintiff was injured when a piece of plywood that was used as a form for curing cement fell after removal of a vertical support. The evidence established that after the vertical support was removed, no barriers were placed in the area where the support had been, and there was nothing to prevent workers from entering the area. The plaintiff’s Labor Law § 240(1) motion was granted despite the defendant’s contention that the plaintiff’s version of events was “incredible,” because there was a finding that the plywood sheet was unsecured for a period of time before the accident occurred.
PRACTICE NOTE: Liability under Labor Law § 240(1) is not imposed solely because an object fell, the plaintiff must show the object fell because of the absence or inadequacy of a safety device of the kind enumerated in the statute.
TOPICS: Labor Law § 240(1), Burden of proof, Gravity-related risk
DAHLIA V. S&K DISTRIBUTION
171 A.D.3d 1127 (February 11, 2019)
The plaintiff was injured while working as a repairman on a heating unit. A forklift with shingles on the tines was used to lift the plaintiff up to the level of the unit. The plaintiff slipped and was injured while replacing a belt and checking a pilot light. Labor Law § 240(1) claims were dismissed after finding that the plaintiff was engaged in routine maintenance of the heating unit and that his actions did not rise to the level of a repair.
PRACTICE NOTE: Labor Law § 240(1) only applies when the plaintiff is performing work
covered by the statute. Routine maintenance is not covered work under the statute.
TOPICS: Labor Law § 240, Routine maintenance, Repair, Scope of work
169 A.D.3d 747 (February 13, 2019)
The plaintiff was injured when a differential block and chain fell onto his head as he and his coworker were preparing a hoisting apparatus to remove and replace a broken roll-up gate. Labor Law § 240(1) applied. The court noted it was irrelevant whether the piece of equipment fell while it was being hoisted or fell because the co-defendant lost his grip upon it. In granting the defendant’s motion to dismiss Labor Law § 241(6), the court differentiated between the enumerated activities of Labor Law § 240(1) and § 241(6). More specifically, § 241(6) does not include repair work, while § 240(1) does.
PRACTICE NOTE: When examining Labor Law § 240(1) and § 241(6), it should not be presumed that both statutes apply just because the plaintiff may have been engaged in something akin to an enumerated activity.
TOPICS: Labor Law § 240(1), Labor Law § 241(6), Enumerated activity, Construction project
169 A.D.3d 758 (February 13, 2019)
The plaintiff, an environmental monitor was charged with ensuring the defendant was properly removing and disposing of asbestos, was injured when he fell while climbing through a window at a public school that was undergoing asbestos abatement. The mechanics of the plaintiff’s fall were such that he would stand upon a milk crate and access a window. His accident occurred as he was descending from the window and stepping onto the milk crate. The court initially determined that the plaintiff was engaged in the type of inspection that was covered under the Labor Law because it was essential, ongoing, and more than mere observation. The court also found issues of fact as to whether the plaintiff was entitled to summary judgment on his Labor Law § 240(1) cause of action because the defendant’s had no knowledge he was utilizing a milk crate to access the work area and
did not place it there for that purpose. With respect to the plaintiff’s claim under § 241(6) premises upon a violation of 12 NYCRR 231.7(f), the court dismissed the plaintiff’s claim because the defendants demonstrated there was a readily available stairway the plaintiff could have used to access the area. Finally, as to § 200 and common law negligence, the court found there was an issue of fact as to whether the defendants created or had notice of the use of the milk crate.
PRACTICE NOTE: When determining if a plaintiff is a covered person, the court is always going to question whether the work the plaintiff was engaged in at the time of the accident was integral to the project with a sufficient nexus to impose liability.
TOPICS: Covered person, Labor Law § 240, Labor Law § 241(6), Industrial Code violation, Inspection
BONILLA-REYES V. RIBELLINO
169 A.D.3d 858 (February 20, 2019)
The plaintiff, a day laborer was injured when he fell 20 feet from the platform of a raised forklift while stocking shelves in a Brooklyn warehouse. The plaintiff had been hired to demolish an existing office and construct the shelving he was stocking when the accident occurred. He had completed the shelves 15 days before his accident. The defendant’s moved to dismiss all Labor Law claims on the basis that the plaintiff was not engaged in an enumerated activity. In opposition, the plaintiff argued that stocking shelves was part of the larger renovation project he was hired to complete. The court agreed with the plaintiff and denied the defendant’s motion because the activity of stocking shelves could have been attendant to the larger project.
PRACTICE NOTE: The court is not going to look at the specific work the plaintiff was engaging in when an accident occurs, but at the circumstances as a whole to determine whether the plaintiff is engaged in an enumerated activity under the labor law.
TOPICS: Labor Law § 240(1), Protected activities
DISANTO V. SPAHU
169 A.D.3d 861 (February 20, 2019)
The plaintiff, a delivery person who was injured when he slipped and fell from the rear tailgate of a truck, testified he observed an oily sub-
stance in the street where he parked his truck outside of the construction site. Upon entering the site, he was forced to walk through the dirt and sand. Upon returning to his truck, he once again walked through the oily substance and his slip and fall ensued. After the accident, the plaintiff observed oil, dirt, and sand in his boots. He brought claims sounding in common law negligence and Labor Law § 200 against the project owner. The court granted defendant summary judgment finding the conditions were open and obvious, and the plaintiff’s affidavit regarding the source of the materials on his boot was speculative.
PRACTICE NOTE: It should be kept in mind that when dealing with a Labor Law § 200 claim, common law defenses are always available.
TOPICS: Labor Law § 200, Open and obvious, Notice, Common-law negligence
RIZO V. 165 EILEEN WAY, LLC
169 A.D.3d 943
(February 20, 2019)
The plaintiff’s accident occurred when he fell from a scaffold while installing sheetrock. Prior to his accident, the general contractor had constructed an indoor sports facility for the building owner. The general contractor then built out office space with a party wall between the sports facility and office space. Upon complaints of noise from the office space tenants, the building owner had the general contractor return to the premises to sound proof the party wall. The plaintiff was employed by the soundproofing subcontractor and the work was being performed on the sports facility side of the wall. The plaintiff sued the general contractor, sports facility (which was a tenant), and the building owner. Initially, the court denied the sports facility’s motion to dismiss Labor Law causes of action finding that although a tenant who does not contract for or control work will not be held liable, in this instances there was testimony that the tenant actually directed the general contractor to construct the wall. The court, denied the building owner’s motion for summary on their contractual indemnification claim, because the owner relied upon the contracts for the sports facility and office space buildouts and the evidence showed the plaintiff’s work was outside of those contracts. Finally, the court granted the building owner and tenant summary judgment on their common law indemnification claims finding that they were being held statutorily liable as a result of the general contractor’s acts.
PRACTICE NOTE: Without the proper contract documents, a defendant can find themselves lacking a recovery against their co-defendants. The owner and contractor must always have some type of written agreement in place.
TOPICS: Statutory agents, Owners, Labor Law § 240(1), Contractual indemnification, Common-law indemnification
MD HANNAN V. FREEMAN
169 A.D.3d 1016 (February 27, 2019)
The plaintiff was injured when he fell from a scaffold owned by the defendant while working outside of defendant’s brownstone. The defendant moved for summary judgment arguing they were entitled to the one-two family homeowner exemption to the Labor Law, because the brownstone was a twofamily home and they did not supervise or control the work. In opposition, the plaintiff argued the home was actually a three-family residence. The court denied the defendant’s motion and found an issue of fact existed as to whether the brownstone was a two- or threefamily home.
PRACTICE NOTE: To be eligible for the homeowner exemption, the defendant must prove both that they owned a one- or two-family home for their own personal use and that they did not supervise or direct the work.
TOPICS: Homeowner exemption, Direct and control work
170 A.D.3d 703 (March 6, 2019)
The defendant retained the plaintiff’s employer to perform clean-up and restoration of the defendant’s building following Hurricane Sandy. The plaintiff was injured when he stepped into an uncovered drain hole at the bottom of a stairway at the premises. The plaintiff brought suit alleging violations of Labor Law § 200 and § 241(6). The § 241(6) cause of action was premised upon 12 NYCRR 23-1.7(e), a provision of the Industrial Code which prohibits tripping hazards in passageways and working areas. In violation of 12 NYCRR 23-1.7(e), the court held that the defendants failed to show the plaintiff’s alleged injury did not result from the presence of the tripping hazard in the passageway. However, the court further held the defendants were not liable under Labor Law
§ 200 as the defendants neither created nor had actual or constructive notice of the defect which caused the plaintiff’s alleged injury.
PRACTICE NOTE: To state a claim under Labor Law § 241(6), the plaintiff must demonstrate injuries were proximately caused by a violation of a specific and applicable provision of the New York State Industrial Code.
TOPICS: Industrial Code violation, Application of Labor Law, Labor Law § 241(6), Labor Law § 200
RAJKUMAR V. LAL
170 A.D.3d 761 (March 6, 2019)
The plaintiff was hired by the defendant to cut down a tree branch at the defendant’s home. While standing on a ladder and cutting the branch, the plaintiff was struck by something that came from above him and he fell off the ladder sustaining injuries. After discovery was completed, defendants moved for summary judgment citing the Single Family Homeowner exception to Labor Law § 240(1) and § 241(6). In support of their motion, the defendants submitted transcripts of the deposition testimony of the parties. The court held the conflicting evidence submitted by the defendant demonstrated the existence of a triable issue of fact as to whether the defendant supervised the method and manner of the work.
PRACTICE NOTE: For purposes of Homeowner’s Exemption provided by Labor in ascertaining whether a particular homeowner’s actions amount to “direction or control” of construction project, the relevant inquiry is the degree to which the owner supervised the method and manner of actual work being performed by the injured employee.
TOPICS: Homeowner exemption, Application of Labor Law
BYRNES V. NURSING SISTERS OF THE SICK POOR, INC.
170 A.D.3d 796 (March 13, 2019)
The plaintiff was allegedly injured when he was performing a seasonal start-up of a cooling tower on the defendant’s HVAC system. As part of the work, the plaintiff and his coworker needed to reinstall a circulation pump on the HVAC tower. To do so, the plaintiff tied a rope around the pump, passed the rope over the top of an overhead beam, and pulled from the other side to raise the pump so his
co-worker could install it. After holding it for about 20 minutes, the plaintiff felt pain in his back. In dismissing the plaintiff’s Labor Law § 241(6) claim, the court held that the Labor Law does not cover routine maintenance in a non-construction, non-renovation context.
PRACTICE NOTE: Although maintenance work performed in connection with construction, demolition, or excavation is included under Labor Law § 241(6), routine maintenance is not within the ambit of Labor Law § 241(6).
TOPICS: Routine maintenance, Application of Labor Law, Labor Law § 241(6)
DAEIRA V. GENTING NEW YORK, LLC
173 A.D.3d 831 (March 19, 2019)
The plaintiff, a construction project manager, was injured when he fell through glass flooring at a construction site. The court held that Labor Law § 240(1) and § 241(6) did not apply because the plaintiff failed to demonstrate that he was part of the class of workers protected by the statutes as he was not employed to carry out repairs at the worksite.
PRACTICE NOTE: The court pointed out that, in order to receive the extraordinary protections of Labor Law § 240(1) and § 241(6), a plaintiff must demonstrate that he was both permitted to work on a building and was hired by an owner, contractor, or their agent.
TOPICS: Protected class of workers, Application of Labor Law
GOMEZ V. KITCHEN AND BATH BY LINDA BURKHARDT, INC.
170 A.D.3d 967 (March 20, 2019)
The plaintiff was injured when the A-Frame ladder he was standing on collapsed. The plaintiff moved for summary judgment on the issue of liability under Labor Law § 240(1). In opposition, the defendants submitted certified hospital records that contained notations that the plaintiff was injured when he fell from a scaffold. The court held that the notations in the hospital records were not attributed to the plaintiff. As the defendant failed to offer evidence sufficiently connecting the plaintiff to the statements in the hospital records, the party admission exception to the hearsay rule did not apply.
PRACTICE NOTE: While hearsay statements may generously be used to oppose motion for summary judgment, they cannot be the only evidence submitted to raise a triable issue of fact.
TOPICS: Labor Law § 240(1), Burden of proof
170 A.D.3d 1216
(March 27, 2019)
The plaintiff, a maintenance company employee, brought suit against the business that owned the rental property upon which the plaintiff sustained injuries alleging, among other things, a violation of Labor Law § 240(1). The defendant moved for summary judgement dismissing the complaint on the grounds that the plaintiff’s claims against it were barred by the exclusivity provisions of the Workers’ Compensation Law on the grounds that it was the alter ego of the plaintiff’s employer. The plaintiff opposed and cross-moved for summary judgment on the issues of liability on the Labor Law § 240(1) cause of action. The court held that the defendant failed to make a prima facie showing that it and plaintiff’s employer operated as a single integrated entity. The court further held the plaintiff made a prima facie showing of entitlement to judgment as a matter of law on the Labor Law § 240(1) cause of action by submitting evidence that the ladder on which he was standing moved for no apparent reason, causing him to fall.
PRACTICE NOTE: The protection against lawsuits brought by injured workers, which is afforded to employers by Workers’ Compensation Law Sections 11 and 29(6), also extends to entities which are alter egos of the entity that employs the plaintiff. A defendant may establish itself as the alter ego of a plaintiff’s employer by demonstrating that one of the entities controls the other or that the two operate as a singleintegrated entity.
TOPICS: Special employer, Exclusivity defense of Workers' Compensation Law
services for the project. The plaintiff was injured when his hand was caught in straps connecting a 2,500-pound bag of soil to a crane, which lifted the plaintiff off the roof he was working on. The plaintiff freed his hand and fell to the roof below. The defendants moved for dismissal of the plaintiff’s Labor Law claims and the plaintiff moved for judgment on the issue of liability. The court held both defendants subject to liability under Labor Laws § 240(1) and § 241(6) since Turner had direct authority over the craning operation and Skidmore was responsible for coordinating and supervising the entire construction project and invested with concomitant power to enforce safety standards.
PRACTICE NOTE: Labor Law § 200, § 240(1), and § 241(6) apply to contractors, owners and their agents. Liability may be found against a Labor Law defendant when it has supervisory control and authority over the work, not whether the right was actually exercised.
TOPICS: Authority or control over work, Application of Labor Law
DESERIO V. CITY OF NEW YORK
171 A.D.3d 867 (April 10, 2019)
The plaintiff was injured when an extension ladder he ascended slipped out from under him, causing him to fall approximately 20 feet to the ground. The plaintiff brought suit alleging violations of Labor Law § 200, § 240(1), and § 241(6). The court held that the plaintiff had demonstrated his prima facie entitlement to judgment as a matter of law on the issue of liability under the statute because he testified that a carpentry foreman directed him to retrieve the subject ladder, which he then ascended without a spotter, and the ladder shifted and shook before the bottom “kicked out,” causing him to fall.
176 A.D.3d 836
(April 3, 2018)
The defendant, Skidmore Owings and Merrill, LLP, was retained by property-owner Dormitory Authority of the State of New York to provide architectural, engineering, and construction management services for a construction project. Skidmore, in turn, retained Turner Construction Company to provide construction management
PRACTICE NOTE: Although a fall from a ladder, by itself, is not sufficient to impose liability under Labor Law § 240(1), liability will be imposed when the evidence shows that the subject ladder was inadequately secured and that the failure to secure the ladder was a substantial factor in causing the plaintiff’s injuries.
TOPICS: Fall from ladder, Application of Labor Law, Labor Law § 240(1)
HOUSTON V. STATE OF NEW YORK
171 A.D.3d 1145
(April 24, 2019)
The plaintiff was an ironworker struck by a falling post that was hoisted by a crane. The plaintiff brought claims alleging a violation under Labor Law § 240(1). The court denied the plaintiff’s motion for summary judgment holding that: 1) no evidence showed that the iron posts fell on the employee’s head due to the absence or inadequacy of an enumerated safety device, and 2) factual issues existed as to whether the conduct of the employee was the sole proximate cause of the accident, precluding summary judgment. The Second Department affirmed focusing on the plaintiff’s testimony indicating that he secured the subject posts using a three-eighths-of-an-inch choker for loading and double-checked to ensure the choker was tight and secure around the posts.
PRACTICE NOTE: The Second Department prudently looked at the specific details of the plaintiff’s accident, noting the plaintiff’s actions of securing the posts prior to their fall and the plaintiff’s very-own use of a safetydevice to secure the posts. While the court did not outright dismiss any consideration of negligence, these facets were enough to defeat summary judgment.
TOPICS: Labor Law § 240(1), Sole proximate cause
RASHID V. HARTKE
171 A.D.3d 1226 (April 24, 2019)
The plaintiff was injured when he fell while working on a brownstone façade of a private home. The court held that the defendants were entitled to dismissal of the complaint as the three-family dwelling was entirely occupied by a married couple, entitling them to the homeowner exemption to the Labor Law. The court also said defendants did not have the authority to control or supervise the work nor notice of the dangerous condition alleged, entitling them to dismissal of the common law negligence and Labor Law § 200 claims.
PRACTICE NOTE: Even a home that is classified as multiple dwelling may fall within the homeowner’s exemption if occupied by a single family.
TOPICS: Homeowner exemption, Manner and method, Authority or control over work
172 A.D.3d 1134
(May 14, 2019)
The plaintiff was injured when tiles and stones fell from the side of a building, striking him. On the date of accident, he was working as a mason to replace tiles or stones on the western façade of a building. As he removed a tile or stone from the third-floor level while standing on a lift, the stones or tiles above started to fall and struck his hand. The plaintiff alleged violations of Labor Law § 200, § 240(1), and § 241(6). The court found that the defendants met their prima facie burden under § 241(6) because the plaintiff’s allegations of violations of the Industrial Code were wholly inapplicable. To wit, the plaintiff’s alleged violations relating to demolition, and concerned the absence of a sidewalk shed. The court determined that neither were the proximate cause of the plaintiff’s injury as the plaintiff was not engaged in demolition at the time of his injury, and further, a sidewalk shed was designed to protect pedestrians below the work-site at the ground level from falling debris. With respect to the § 200 claims, the court found that mere general supervisory authority at a work-site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability. The plaintiff’s deposition testimony established that the tiles or stones that fell only did so after the plaintiff removed an underlying tile, which in finding the defendants not responsible for supervising or overseeing this specific act.
PRACTICE NOTE: Make sure the violations alleged are the proximate cause of injury, especially when dealing with § 241(6). When considering supervision and inspection of work, look at the specific acts that lead to the accident. In this case, the plaintiff’s removal of the underlying stone caused the accident, however, the defendants would not have been the party to direct such actions.
TOPICS: Supervision and control, Proximate cause, Labor Law § 200 and Labor Law § 241(6)
elevation” it was not caused by an elevationrelated risk as contemplated by the statute. The court further held that the dismissal of the plaintiff’s Labor Law § 200 claim was appropriate as the accident arose from the means and manner of the plaintiff’s work, which was controlled solely by his employer and the defendants did not have authority to exercise control over that work.
PRACTICE NOTE: Not every accident relating to elevation presents a viable claim under Labor Law § 240(1) and a motion for summary judgment may still be appropriate when injury involves elevation.
TOPICS: Elevation-related hazard, Falling object, Application of Labor Law, Protected activities, Manner and method, Authority or control over work
BERAUN SOLLER V. DAHAN
173 A.D.3d 803 (June 5, 2019)
The plaintiff, employed as an automobile mechanic, sustained injury when his supervisor directed him to perform sheetrock work at a building owned by his supervisor when an electrical saw kicked back and struck him. The court held that while the plaintiff pled viable Labor Law § 200 and common law negligence claims, he failed to state a cause of action under Labor Law § 240(1) and § 241(6), and failed to allege that his injuries were the result of an elevation-related risk or due to a violation of the industrial code.
PRACTICE NOTE: The plaintiff will not have a viable Labor Law § 240(1) claim without establishing an injury arising from an elevated risk.
TOPICS: Application of Labor Law, Gravityrelated risk
WASS V. COUNTY OF NASSAU
173 A.D.3d 933 (June 12, 2019)
172 A.D.2d 1159 (May 22, 2019)
The plaintiff, a construction manager, was injured when he attempted to throw a hose onto an area 15-20 feet above him. The court held that the plaintiff was not entitled to the protection of Labor Law § 240(1) because although the accident “tangentially involved
The plaintiff fell from an eight-foot A-frame ladder while working on a lighting fixture and alleged violations of Labor Law § 240(1) and § 241(6). The court held that the plaintiff had viable Labor Law claims as his work involved both changing or tightening light bulbs and more labor intensive work to the light fixtures, thus falling within the scope of repair.
PRACTICE NOTE: The court relied almost exclusively on the deposition testimony of plaintiff
which clarified the work he was performing on the day of his accident as involving more than mere light bulb replacement and tightening and actual repair work.
TOPICS: Routine maintenance, Protected activities, Alteration or repair
CHAVEZ-LEZAMA V. KUN GAO
2019 N.Y. Slip Op. 04675 (June 12, 2019)
The plaintiff was working on converting an existing one-family home to a two-family home when he allegedly fell and was injured while descending a ladder. The plaintiff brought claims under Labor Law § 200, § 240(1), and § 241(6), in addition to common law negligence. The defendant proffered evidence that he was the owner of the one- or two-family dwelling and did not direct or control the work performed. The court granted the defendant’s motion to dismiss finding that the defendant fell under the exception for work on the oneor two-family dwellings used as a residence.
PRACTICE NOTE: Owners of a one- or two-family dwelling used as a residence are exempt from liability under Labor Law § 240(1) and § 241(6), unless they direct or control the work performed. The key here is the direction and control of the work. The defendant affirmatively established through testimony that he did not have any such say. While claims under Labor Law § 200 are not afforded the residence exception, they still may be founded in claims arising out of the methods or means of the work—in such a case an owner must have the authority to supervise or control the work for liability to attach.
TOPICS: Supervision and control, Homeowner exemption, Manner and method
ORELLANA V. 7 WEST 34TH STREET, LLC
2019 N.Y. Slip Op. 04711 (June 12, 2019)
Plaintiff was injured while performing demolition work at a commercial building for a nonparty employer. He was standing on an 8-foot, A-frame ladder while using an electric saw to cut brackets holding a duct. He recalled cutting the last bracket, holding the duct to the ceiling, and feeling the duct falling but did not recall falling off the ladder. Plaintiff brought claims for violations of Labor Law § 240(1). Both plaintiff and defendants moved for summary judgment and the court found plaintiff did not establish that the ladder he fell from was an
inadequate safety device for the work he was engaged in at the time of his accident. The defendants failed to establish that plaintiff was a recalcitrant worker and that his conduct was the sole proximate cause of his fall because he allegedly improperly positioned the ladder, did not ask his co-worker to cut the bracket, and did not demand that his foreman provide scaffolding.
PRACTICE NOTE: Not every fall from a ladder constitutes an automatic violation of Labor Law § 240(1). Here the ladder was an appropriate device for the work plaintiff was performing and there was insufficient expert testimony to establish that the ladder was inherently unsafe on its own. On the other hand, to avail of the recalcitrant worker defense, a plaintiff must have failed to meet the three prongs set forth above.
TOPICS: Labor Law § 240(1), Comparative fault, Sole proximate cause, Recalcitrant worker
2019 N.Y. Slip Op 04752 (June 12, 2019)
In a matter involving an employee fall through an opening in the floor while performing wiring work, plaintiff-employee moved prediscovery exchange for summary judgment on liability under Labor Law § 240(1) against defendant-owner and defendant-parent company. Plaintiff worked as a salesman at a depo owned by defendant-parent company but was asked to run electrical wires leading to his fall. The court held defendant-parent company could not be held liable under § 240(1) as an agent of the ownership company because they were not delegated the, “duty to conform to the requirements of the Labor Law”. Although defendant-parent company was up the chain of ownership, they did not direct or insist that proper safety practices were followed and did not have supervisory control and authority over the work done. However, the court did grant summary judgment to plaintiff against defendant-owner.
PRACTICE NOTE: Beware of pre-discovery summary judgment motions—if there is a sufficient factual basis to instill liability, courts will not hesitate to render a decision; early investigation of an accident is essential. While many may presume that liability will run up the chain to ownership, agency is an important and valid defense. Examine whether your client was required to conform to the requirements of the Labor Law, whether they had
the right to insist proper safety practices were followed, and whether there was supervisory control and authority over the work done.
TOPICS: Agency relationships, Supervision and control
ROBLES V. TACONIC MANAGEMENT COMPANY, LLC
173 A.D.3d 1089 (June 19, 2019)
The plaintiff was working as a laborer when a freight elevator door closed on his head and alleged violations of, among other things, Labor Law § 200 as well as common law negligence. The court held that the building management company and owner were liable as evidence showed that they gave direction to elevator operators but found that the elevator operation company was not liable to plaintiff under Espinal v. Melville Snow Contractors, which holds that a contractual obligation will not give rise to tort liability to a third-party except for three specific scenarios.
PRACTICE NOTE: Under Labor Law § 200 and common law negligence claims, common law defenses such as an Espinal analysis is still appropriate.
TOPICS: Application of Labor Law, Common-law negligence, Labor Law § 200
MENDEZ V. VARDARIS TECH, INC.
2019 N.Y. Slip Op. 04932 (June 19, 2019)
Here, a worker was struck in the head when a light fixture fell from the ceiling during demolition with a jackhammer. Plaintiff’s claims under Labor Law § 200 and § 241(6) were considered in this decision. With respect to § 200, the defendants were able to establish that they did not create the dangerous condition that injured plaintiff (installation of the light fixture) and claims relating to § 200 were dismissed. However, the court found that despite the fact that the defendants did not create the condition, a duty was still owed under § 241(6). Specifically, the Industrial Code § 233.3 dictates, “walls and chimneys and other parts of any building or other structure shall not be left unguarded in such condition that such parts may fall, collapse or be weakened by wind pressure or vibration.” This position was reinforced by testimony that plaintiff was instructed specifically not to remove the overhead light fixtures, and that he
complained about the lack of scaffold safety protection or braces about the room.
PRACTICE NOTE: When a § 200 claim arises out of an allegedly dangerous condition on the premises, a contractor must have control over the work-site and either created the dangerous condition, and/or had actual or constructive notice of it. On the other hand, violations of the Industrial Code which are the proximate cause of an accident will be sufficient to impute statutory liability, even if a plaintiff choses to continue to work in the environment.
TOPICS: Industrial Code, Labor Law § 200 and Labor Law § 241(6)
SWAN V. PIER 1 IMPORTS, ET. AL.
2019 N.Y. Slip Op. 04985 (June 19, 2019)
Here, the plaintiff was awarded summary judgment against Pier 1 in the main action under Labor Law § 240(1) and a theory of vicarious liability; Advanced Communications was determined to be the primarily negligent party. In separate third party actions, Pier 1 was granted contractual liability against two other parties Tricon Construction and T.C.Millwork, Inc.. In turn, TCM and Tricon sought commonlaw indemnification from Advanced. The court granted TCM and Tricon reasonable costs incurred in defending Pier 1 in the main action, but not the sub-third-party actions, or the costs associated with prosecuting their claims against Advanced. The court found, under a theory of common-law indemnification, a party, may seek reimbursement of attorneys’ fees, costs and disbursements incurred in connection with defending the suit brought by the injured party. However, prosecution of a claim against another party does not qualify.
PRACTICE NOTE: Focus on inter-party relationships and, if possible, limit third-party actions when seeking indemnification. Here, due to common law indemnification, Tricon and TCM were able to recover from tortfeasor Advanced for the reasonable expenses incurred in the main action, but were precluded from recovery in the third-party actions.
TOPICS: Common-law indemnification, Thirdparty actions, Contractual indemnification, Costs
V. CITY OF NEW YORK
173 A.D.3d 1165
(June 26, 2019)
Plaintiff was a stagehand who fell from an elevated booth while removing a piece of lighting equipment and commenced this action alleging a violation of Labor Law § 240(1). The court held that the plaintiff was not entitled to the protections of Labor Law § 240(1) as the work he was performing was the removal of portable lighting equipment which did not constitute an “alteration” within the meaning of the statute.
PRACTICE NOTE: The court clarified that an “alteration” under Labor Law § 240(1) requires making a “significant physical change” to the configuration or composition of the building or structure.
TOPICS: Application of Labor Law, Protected activities, Alteration or repair, Enumerated activity
DOSKOTCH V. PISOCKI
168 A.D.3d 1174
(January 3, 2019)
Plaintiff resided at home with his mother and stepfather. When he returned home from his full-time job, plaintiff was asked by his mother, the defendant to examine the chimney of their rental property next door. The evidence revealed the defendant would pay her son when he would conduct repairs on the rental property but on this occasion had no intention of paying him just for checking the status of the chimney. The plaintiff moved for summary judgment on his Labor Law claims and the defendant cross-moved to dismiss same. In determining issues of fact existed and denying each motion, the court needed to examine whether the plaintiff was a worker as defined by the Labor Law or a volunteer which the law would not apply to.
PRACTICE NOTE: A fall from a ladder does not per se establish a violation of the Labor Law. Courts are always going to examine the facts and circumstances surrounding an accident to determine whether the law applies.
TOPICS: Application of Labor Law, Protected activities, Property owner
GUTHORN V. VILLAGE OF SARNAC LAKE
169 A.D.3d 1298
(January 9, 2019)
Plaintiff in this matter was injured when he was caused to fall from a ladder. His employer had entered into a contract with the general contractor which required indemnification of the general contractor for accidents arising out of the employer’s work. However, the contract was not signed until after the accident. In denying the general contractor’s motion for indemnification, the court found there were issues of fact as to whether there was a meeting of the minds as to the retroactive application of the contract and specifically the indemnification provision.
PRACTICE NOTE: The court will strictly construe a contract whose applicability is questionable.
TOPICS: Contractual indemnification
168 A.D.3d 1257
(January 17, 2019)
Plaintiff, the administrator of the estate of her spouse, brought suit for violations of the
Labor Law as a result of her husband being crushed to death by a 2500 lbs. bridge form that fell upon him at a manufacturing facility. In dismissing the Labor Law causes of action, the court found that plaintiff was not performing an enumerated activity. They noted the fact that the form would eventually be used as part of some unspecified construction was too tenuous to bring these facts within the ambit of the Labor Law.
PRACTICE NOTE: Plaintiff must be engaged in an enumerated activity to recover under the Labor Law. Liability may attach for work antecedent to an enumerated activity if a sufficient nexus can be shown.
TOPICS: Application of Labor Law, Protected activities
DOS SANTOS V. STATE OF NEW YORK
169 A.D.3d 1328 (February 28, 2019)
Plaintiff was injured while sandblasting on a temporary deck suspended under the upper deck of a bridge when he stepped into a partially covered hole in the deck which was 1 foot by 12 feet. In granting the plaintiff summary judgment on Labor Law § 240(1), the court noted that the deck was the functional equivalent of a scaffold and the opening presented an elevation related risk which was a sufficient size to allow the plaintiff to fall through completely.
PRACTICE NOTE: Although the typical suspended deck is quite large, and akin to a permanent structure, the court chose to specifically note it was akin to a scaffold in going through their analysis.
TOPICS: Labor Law § 240(1), Elevation-related hazard
PELHAM V. MORACCO, LLC
172 AD3d 1689 (May 16, 2019)
The defendant was a real estate holding company which owned three properties. The properties were the sole member’s medical practice building, a log cabin, and a wooded lot near the log cabin. The defendant engaged plaintiff to construct a new single-family log cabin on the wooded lot, and put the existing log cabin up for sale. The defendant did not direct or control plaintiff’s work. The defendant’s sole member affirmed that he intended to use the new log cabin as a vacation home, did not intend to rent it or use it
for any business purposes, and never rented out the first log cabin. The defendant moved for summary judgment on the plaintiff’s Labor Law claims based on the statutes’ exemption for owners of single-family dwellings. The plaintiff argued there was a question of fact as to whether the defendant would use the property for commercial purposes, because it was a limited liability holding company, and payment came from the sole member and his medical practice. The court held the plaintiff’s argument was based entirely on speculation, and granted the defendant’s motion dismissing the complaint.
PRACTICE NOTE: The single-family exemption to the Labor Law can apply to property owned by a business entity, so long as the property will not be used for any commercial or rental uses. A plaintiff cannot defeat summary judgment by speculating that the property will be used in those ways.
TOPICS: Application of Labor Law, Single-family dwelling
GUTKAISS V. DELAWARE AVENUE MERCHANTS GROUP, INC.
2019 N.Y. Slip Op. 04527 (June 6, 2019)
Plaintiff sustained injuries when he fell off a ladder while replacing light strands wrapped around light poles. The court held that this work was not an enumerated activity, i.e., a “repair,” under § 240(1), but rather, constituted routine maintenance that was outside the protection of this section. The court noted that while replacement of a light fixture on a lighting pole is considered a repair within the protection of Labor Law § 240(1), the court determined that the light strands were not “fixtures” as they were merely placed on the light poles for decorative purposes and did not provide illumination to the street and adjacent sidewalk nor did they form a part of the light poles.
PRACTICE NOTE: Routine maintenance and decorative tasks related to a structure do not fall within the scope of Labor Law § 240(1).
TOPICS: Routine maintenance, Protected activities, Alteration or repair
WRIGHT V. ELLSWORTH PARTNERS, LLC
173 A.D.3d 1409 (June 13, 2019)
While performing work at a construction site, the plaintiff was injured when a row of 6-foot tall scaffolding frames stacked vertically at ground level fell forward onto him. The plaintiff was 5-foot-7-inches tall. Both the plaintiff and the defendant contractors moved for summary judgment on the plaintiff’s Labor Law § 240(1) claim. The court found that there was an elevation differential of five inches between the worker and the scaffolding frames. In examining whether the elevation differential was significant, the court had to consider the height differential, the weight of the falling object, and the force it could generate. The court granted defendant’s motion and dismissed the § 240(1) claim relying on defendant’s expert who opined the force generated by the 5-foot height differential was de minimus
PRACTICE NOTE: Where an injured worker and a falling object are located on the same level, liability under § 240(1) turns on whether the height differential between the plaintiff and the falling object is physically significant and how much force may be generated by the object. Although this standard is fact heavy, it can be met at the summary judgment stage.
TOPICS: Application of Labor Law, Gravity-related risk
RITTER V. FORT SCHUYLER MANAGEMENT CORP.
169 A.D.3d 1419
(February 1, 2019)
After sustaining injury on a construction project, the plaintiff sued defendant, an out-of-possession lessee. Defendant had subleased the property to a non-party who, in turn, entered into a contract with the plaintiff’s employer. In dismissing plaintiff’s Labor Law § 240(1) and § 241(6) claims against defendant, the court held that defendant was not an owner for purposes of liability under these sections. Rather, an owner is the party who, as a practical matter, has the right to hire or fire subcontractors and to insist that proper safety practices are followed. The critical factor in determining whether a non-titleholder is an owner is the “right to insist that proper safety practices were followed and it is the right to control the work that is significant, not the actual exercises or non-exercise of control.”
PRACTICE NOTE: To be deemed an owner for purposes of Labor Law § 240(1) and § 241(6) liability, a non-titleholder must have the right to insist that proper safety practices are followed and the right to control the work.
TOPICS: Property owner, Out-of-possession lessee, Authority or control over work, Manner and method
BURNS V. MARCELLUS LANES, INC.
169 A.D.3d 1457
(February 1, 2019)
Plaintiff was injured while removing snow and ice from the roof of a building owned by defendant when he fell from the bucket of a backhoe being used to lift him to the roof. Although there may have been a question of fact as to whether the plaintiff’s injuries were caused by the fall itself or by being struck by the backhoe in the moments immediately following the fall, the court found that issue immaterial. In granting plaintiff’s motion for summary judgment under Labor Law § 240(1), the court held that plaintiff only had to demonstrate that he was injured when an “elevationrelated safety device failed to perform its function to support and secure him from injury.” Plaintiff need not demonstrate the precise manner in which the accident happened. Rather, it was sufficient to demonstrate that the risk of some injury from defendants’ conduct was foreseeable.
PRACTICE NOTE: The removal of snow and ice from the roof of a commercial building
constitutes a form of cleaning, an enumerated activity under § 240(1). To establish a prima facie case, plaintiff need not demonstrate the precise manner in which the accident happened, only that the risk of some injury from defendants’ conduct was foreseeable.
TOPICS: Protected activities, Foreseeability, Elevation-related risk, Adequacy of safety device, Prima facie burden
169 A.D.3d 1503 (February 8, 2019)
Plaintiff sustained injuries while demolishing the roof of an outbuilding on defendant’s 85-acre residential property. In dismissing plaintiff’s cause of action, the court noted that the Internal Revenue Code’s definition of a residential property is considerably narrower than the scope of the one- or two-family home exemption to liability under Labor Law § 240(1). Thus, defendant’s classification of its property as commercial for IRS purposes was not inconsistent with its reliance on that exemption.
PRACTICE NOTE: Property owner’s classification of property as commercial in tax filings did not stop it from relying upon exemption from liability under scaffold law for one- or twofamily dwellings.
TOPICS: One- or two-family dwelling exemption, Application of Labor Law
172 A.D.3d 1886 (May 3, 2019)
During the course of constructing a house, the plaintiff decedent fell into a hole where a staircase was to be constructed. Part of the barricade around the hole had been removed, permitting access to two windows. The decedent was measuring windows for later installation, and the window treatment work was separate and distinct from the ongoing construction work. The plaintiff set forth claims under Labor Law § 240(1) and § 241(6), and common law negligence against the defendants, the contractor and owner. The court held the window measurement work did not involve a significant physical change to the house, was not “necessary and incidental to the construction of the home,” and was not part of the ongoing construction project, so the Labor Law did not apply. Thus, the court dismissed those causes of action. However, the Court
found there were triable issues of fact with respect to the common law negligence claim, including whether the defendants had notice of a dangerous condition, and whether the decedent’s own negligence was a proximate cause of the accident.
PRACTICE NOTE: A plaintiff must be performing an enumerated activity under the Labor Law for the statute to apply.
TOPICS: Application of Labor Law, Protected activities, Common-law negligence
172 A.D.3d 1920 (May 3, 2019)
In this common law negligence and Labor Law § 200 action, the plaintiff fell on a roof while performing asbestos remediation, and alleged that a defective condition on the premises caused the accident. The defendant moved for summary judgment; however, the court determined that the defendant failed meet its initial burden of establishing that it did not create or have notice of the defective condition. Thus, the court denied the defendant’s motion.
PRACTICE NOTE: At summary judgment on a defective premises claim, a defendant must demonstrate that it did not have actual or constructive notice of the alleged defective condition, or that the premises were not defective.
TOPICS: Prima facie burden, Common-law negligence
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