Labor Law Update - Fall 2021

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I N T H IS ISSU E: ▶ Availability of the Special Employee Defense ▶ Ladder safety requirements for employers ▶ Proper use of scaffolding on worksites ▶ Enumerated activity under § 240(1) Attorney Advertising

FIRST DEPARTMENT

TOPICS: Labor Law § 200, Authority or control

over work, Unsafe condition

LEMACHE V. MIP 1 WALL STREET ACQUISITION LLC 190 A.D. 3d 422 January 5, 2021

The plaintiff was moving a concrete planter to relocate it. In doing so, he inserted pipes underneath the planter. While pushing and pulling the planter from both sides, one of the pipes rolled over the plaintiff’s foot, causing injury. The lower court dismissed the plaintiff’s claims under Labor Law § 240(1), finding that the plaintiff’s injuries were not the result of a gravity-related event. However, the appellate division reversed a finding that the general contractor was entitled to summary judgment under Labor Law § 200.

The court found a question of fact as to the general contractor’s supervisory control over the means and methods of the plaintiff’s work.

The court highlighted testimony of the general contractor’s superintendent, who directed that the planter be moved, controlled the use of machinery, and had the right to stop the work if the general contractor deemed it unsafe or if a subcontractor was found to be using an unlicensed operator, and, further, that it was the practice of the general contractor to perform a safety task assessment in such an instance.

PRACTICE NOTE: Labor Law § 200 liability arises

from a general contractor’s or agent’s authority to control an activity bringing about injury, wherein the general contractor has the ability to avoid or correct an unsafe condition.

TOPICS: Labor Law § 200, Labor Law § 240(1),

Labor Law § 241(6), Falling object

SALCEDO V. SUSTAINABLE ENERGY OPTIONS, LLC 190 A.D.3d 439 January 5, 2021

The plaintiff was injured while performing construction work at a premises when he was struck and injured by material dropped by plumbers working above him. The plaintiff brought claims under Labor Law §§ 200, 240(1), and 241(6). The appellate division reversed the trial court’s decision dismissing the plaintiff’s claims against the defendants. With respect to Labor Law § 240(1), the court noted that there was no evidence to contradict the plaintiffs’ testimony that he was in fact struck by an object dropped by plumbers working above him.

The plaintiff’s Labor Law § 241(6) claim was 4 | Labor Law Update

predicated on a violation of 12 NYCRR 23-1.7[a] [1]. The court found that the defendants did not submit any evidence establishing that the area where the plaintiff’s accident occurred is an area where he would not normally be exposed to falling material or objects and, therefore, did not require overhead protection. With respect to Labor Law § 200, the court found that the defendants failed to establish that they did not exercise supervision or control either over the plaintiff or the plumbers working above him.

PRACTICE NOTE: The court noted that, in es-

tablishing liability against the defendants, the plaintiff was not required to show the exact circumstances of the fall of the material that stuck him.

ment to summary judgment that the area where work was being performed was not an area where there was a danger of being struck by fallen material and, therefore, a safety device need not be provided (§23-1.8(c)). The defendants also failed to establish that there was no violation of 23-3.3(c), which provides that continuing inspection shall be made by designated persons during demolition to detect any hazards resulting from weakened or deteriorated floors or walls or loosened materials. With regard to the plaintiff’s employer’s motion seeking to dismiss the common law and contribution claims against it, the court held that they failed to establish prima facie that the plaintiff’s brain injury was not “grave.”

Further, conflicting expert opinions created an issue of fact.

PRACTICE NOTE: Pursuant to Workers’ Compen-

TOPICS: Labor Law § 240(1), Demolition work,

Door, Issues of fact

ABAD V. BROOKFIELD PROPS. OLP CO. LLC

sation Law § 11, common law indemnification and contribution claims cannot be maintained against the plaintiff’s employer unless the plaintiff sustained a “grave injury.”

190 A.D.3d 471 January 12, 2021

The plaintiff was injured when he was struck by a falling door during demolition work. The court found that the plaintiff did not establish his prima facie case insofar as triable issues existed regarding whether the falling of the door was the goal of the demolition work being performed, and whether the door was the type of object that required securing under the statute.

PRACTICE NOTE: In determining whether La-

bor Law § 240(1) applies, you must determine whether the falling object is an object that requires hoisting or securing, and further, whether, during demolition activities, the mechanism of the injury was the direct result or goal of the plaintiff’s own work.

TOPICS: Labor Law § 241(6), Labor Law § 200,

Workers’ Compensation Law § 11, Grave injury, Burden of proof SANTANA V. MMF 1212 ASSOC. LLC 190 A.D.3d 505 January 12, 2021

The plaintiff was injured while performing demolition work when a portion of the ceiling fell and struck him on the head and body. The plaintiff asserted Labor Law § 241(6) claims predicated on violations of Industrial Codes 12 NYCRR §§ 231.8(c) and 23-3.3(c). The court held that the defendants failed to establish prima facie entitle-

TOPICS: Covered work, Sole proximate cause,

Means and methods

GASTON V. TRUSTEES OF COLUMBIA UNIV. IN THE CITY OF N.Y. 190 A.D.3d 551 January 19, 2021

The plaintiff was injured while replacing the steam valve atop a boiler. The First Department reversed the lower court’s dismissal of the Labor Law §§ 240(1) and 241(6) claims. The court held that there was an issue of fact as to whether the plaintiff was performing a covered activity under the Labor Law. While replacing a boiler steam valve has been deemed routine maintenance, the work was part of a larger project that included removing portions of the boilers with blowtorches and installing new components by welding. Further, the defendants did not provide evidence that adequate safety devices were available and the plaintiff refused to use them or use them properly such that he was the sole proximate cause of the accident.

The First Department dismissed the plaintiff’s Labor Law § 200 claims as the accident arose from the means and methods of the work and not a defective condition. The defendants neither supervised nor controlled the work the plaintiff was performing.

PRACTICE NOTE: The determination of whether a

worker was engaged in a covered activity is not made at the moment of injury, but in the context of the entire project.

FIRST DEPARTMENT

TOPICS: Labor Law § 200, Issues of fact, Authority

or control over work, Supervision and control

MATTER OF NEW YORK CITY ASBESTOS LITIG. 190 A.D.3d 589 January 21, 2021

The plaintiff’s decedent died after allegedly contracting malignant mesothelioma following exposure to asbestos-containing products. In denying the defendant’s motion for summary judgment seeking dismissal of the plaintiff’s Labor Law § 200 and common law negligence claims, the court identified material issues of fact, including whether the defendant had the authority to control the activity bringing about the injury, i.e., the application of asbestos-containing materials in the airport terminal where the plaintiff worked.

PRACTICE NOTE: When considering means and

methods cases, you must consider whether the defendant had authority to exercise supervisory control over the injury-producing work.

relied upon authenticated surveillance footage demonstrating that the ladder did not move or shake, refuting the plaintiff’s testimony to the contrary, as well as photographs taken soon after the plaintiff’s fall that showed that the top of the ladder was connected to the sidewalk bridge and scaffolding above and tied to the scaffolding structure about one-third of the way up. In dismissing the plaintiff’s Labor Law § 241(6) claim, the Court found that the photographs demonstrated that the ladder was not on a slippery surface, but on asphalt, it had appropriate rubber feet and no unsecured objects were used as footings.

Authenticated surveillance footage and photographs taken shortly after the accident occurred were sufficient to refute and rebut the plaintiff’s testimony and establish that the ladder was secure and did not move or shaking; warranting dismissal of the plaintiff’s Labor Law §§ 240(1) and 241(6) claims.

PRACTICE NOTE:

TOPICS: Labor Law § 240(1), Ladder, Sole TOPICS: Labor Law § 240(1), Gravity, Safety devices

MARTINEZ V. GHORTA 190 A.D.3d 615 January 26, 2021

The plaintiff worker was injured when the metal jack he was using toppled over, struck him in the head, and knocked him to the ground.

The court found that the plaintiff established a prima facie violation of Labor Law § 240(1) by showing that the furnished elevation-related safety device, the jack, was inadequate to shield the plaintiff from harm “directly flowing from the application of the force of gravity to the jack.”

PRACTICE NOTE: A defendant’s failure to pro-

vide the plaintiff with adequate safety devices for the assigned work at a construction site is prima facie evidence establishing a claim under Labor Law § 240(1).

TOPICS: Labor Law § 240(1), Ladder, Labor Law

§ 241(6)

CORDOVA V. 653 ELEVENTH AVE. LLC 190 A.D. 3d 637 January 28, 2021

The plaintiff was injured when he fell from a ladder at a construction site. In dismissing the plaintiff’s Labor Law § 240(1) claim, the court

proximate cause, Recalcitrant worker

MORALES V. 2400 RYER AVE. REALTY, LLC 190 A.D.3d 647 January 28, 2021

The plaintiff was standing on an A-frame ladder that slipped out from under him, causing him to fall and become injured. The trial court denied the plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim. The Appellate Division reversed, finding that evidence of the slipping ladder established prima facie entitlement to summary judgment. Although the defendants provided evidence that the plaintiff made the decision to use the A-frame ladder in the closed position, the court found that this was insufficient to establish that he was the sole proximate cause of his own injury. The defendants also failed to show that it would have been the plaintiff’s “normal and logical response” to use a taller ladder available at the site. The defendants also failed to establish that the plaintiff was a recalcitrant worker. The defendants failed to show that the plaintiff either was expected to use a taller ladder for his work, but chose for no good reason not to do so, or refused to follow a specific instruction to use a taller ladder.

PRACTICE NOTE: The plaintiff provided a spe-

cific reason as to why he used the ladder in the closed position. This was a key element in supporting the court’s finding that he was not the sole proximate cause of his own injury.

TOPICS: Labor Law § 240(1), Statutory agent,

Sole proximate cause

ORDONEZ V. ONE CITY BLOCK, LLC 191 A.D.3d 412 February 2, 2021

The plaintiff was injured when he fell from a scaffold that lacked guardrails. He was not provided any other protective devices. The First Department held that the plaintiff established entitlement to summary judgment as to his Labor Law § 240(1) claim on this basis. The defendants’ arguments that the plaintiff failed to lock the wheels or his alleged failure to wear a safety harness were insufficient to raise an issue of fact as to whether the plaintiff was the sole proximate cause of the accident, as the scaffold’s inadequacy to protect the plaintiff from falling made any of his actions, at most, comparative negligence. The disputes as to how the plaintiff actually fell or the height of the scaffold were not material issues of fact. The First Department held that two of the defendants were vicariously liable as statutory agents to the owner defendant because they had the authority to supervise and control the work that brought about the plaintiff’s injury.

PRACTICE NOTE: Comparative negligence is not

a defense to a Labor Law § 240(1) claim. It must be established that the plaintiff was the sole proximate cause of the accident. A party will be deemed a statutory agent and be subject to liability under Labor Law § 240(1) where the party had the authority to supervise and control the work that brought about the plaintiff’s injury.

TOPICS: Labor Law § 240(1), Ladder,

Indemnification

MELAKU V. AGA 15TH ST., LLC 191 A.D.3d 410 February 2, 2021

The plaintiff was standing on an A-frame ladder when it tipped over. This caused the plaintiff to fall and become injured. The appellate division affirmed the granting of summary judgment on the plaintiff’s Labor Law § 240(1) claim. In doing so, the court also found that the defendants failed to establish that the plaintiff was the sole proximate cause of his own injury. The evidence established that the plaintiff was asked to retrieve a tool from the edge of a scaffold, and it was not unreasonable for the plaintiff to use the ladder as opposed to scaffold rungs.

PRACTICE NOTE: Because the court found that

only the plaintiff’s employer directed or superFALL 2021 | 5

FIRST DEPARTMENT

vised the plaintiff’s work, it dismissed the common law indemnification claims against the general contractor.

PRACTICE NOTE: The fact that the plaintiff was

the sole witness to his accident did not affect his entitlement to summary judgment, because there was nothing else that called his credibility into question.

TOPICS: Labor Law § 240(1), Indemnification

MADKINS V. 22 LITTLE W. 12TH ST., LLC 191 A.D.3d 434 February 4, 2021

The plaintiff was injured when he was struck by falling bricks in an elevator shaft where he was working. The trial court found issues of fact that precluded summary judgment on the plaintiff’s Labor Law § 240(1) claim, which the appellate division affirmed. The appellate division reversed the trial court’s dismissal of a defendant’s common law and contractual indemnification claims against a second third-party defendant, however. The court found issues of fact as to which trade generated the bricks that ultimately injured the plaintiff and when this work occurred. The court also reversed the trial court’s dismissal of the third-party complaint for contractual indemnification, finding that the defendant was entitled to conditional summary judgment on this claim, subject to a determination as to whether the defendant was negligent.

PRACTICE NOTE: In granting conditional sum-

mary judgment on contractual indemnification against the third-party defendant, the court noted that the contract contained broad indemnification language requiring indemnification “to the fullest extent permitted by law” against damages or liability arising out of the third-party defendant’s work.

TOPICS: Labor Law § 240(1), Ladder

MILLIGAN V. TUTOR PERINI CORP. 191 A.D.3d 437 February 4, 2021

The plaintiff became injured after he slipped and fell off a wet and slippery ladder. The appellate court affirmed the granting of summary judgment on the plaintiff’s Labor Law § 240(1) claim. The evidence established that the plaintiff was exposed to an elevation-related risk, and that the defendants failed to provide him with proper protection. The plaintiff was not required to show that the ladder was inherently defective in order to prevail on his Labor Law § 240(1) claim.

6 | Labor Law Update

further whether the plaintiff’s actions may have been the sole proximate cause of the incident and injuries.

TOPICS: Labor Law § 240(1), Labor Law § 241(6), TOPICS: Labor Law § 241(6), Labor Law § 240(1),

Anti-subrogation rule, Federal preemption PASTORINO V. CITY OF NEW YORK 191 A.D.3d 440 February 4, 2021

The plaintiff was a dock-builder foreman who was injured while attempting to step up from a tugboat onto a barge by stepping onto a tire hanging from the barge. The plaintiff’s employer contracted with the City of New York to perform construction work and lease the tugboat to perform the work. The First Department held that although it did not own the tugboat, the city could be held liable under Labor Law §§ 240(1) or 241(6) as the project owner. The plaintiff’s motion for summary judgment was properly denied on the basis that there were issues of fact as to the availability of a ladder at the time of the accident. The First Department further held that the anti-subrogation rule barred the city’s indemnification and contribution cross claims against the plaintiff’s employer because the city was a named additional insured under the employer’s insurance policy.

PRACTICE NOTE: Federal law does not preempt

the Labor Law where a claim arises from work that was essentially local in character.

TOPICS: Labor Law § 240(1), Scaffold, Proximate

cause

CRAWFORD V. 14 E. 11TH ST., LLC 191 A.D. 3d 461 February 9, 2021

The plaintiff worker was injured when he fell while climbing on a scaffold. The court found that questions of fact existed as to whether it was a piece of cross bracing or a walking plank that broke, thereby causing the plaintiff’s injury, and whether the plaintiff’s climbing on the scaffold’s cross bracing instead of using the scaffold’s stairs when moving between platform levels was the sole proximate cause of the accident.

PRACTICE NOTE: Summary judgment is inap-

propriate where there are issues of fact as to the mechanism that caused the incident and

Ramp requirements, Physically significant elevation differential BAIN V. 50 W. DEV., LLC 191 A.D.3d 496 February 11, 2021

The plaintiff was injured when particle board sheets fell on him from an A-frame cart that toppled when its wheel was caught in a gap of a ramp structure. The First Department held that there were issues of fact as to the defendants’ liability under Labor Law § 240(1) regarding the weight of the particle board sheets that fell and whether they made the height differential “physically significant.” The First Department held that the plaintiff was entitled to partial summary judgment on his Labor Law § 241(6) claims predicated on Industrial Code 12 NYCRR 23-1.22(b)(3) that requires ramp planks to be laid close, butt jointed, and securely nailed.

Here, the ramp where the accident occurred was loosely cobbled together with a large gap between the boards.

PRACTICE NOTE: When determining whether an

elevation differential is physically significant to fall within the purview of Labor Law § 240(1), a court will consider the weight of the object and the amount of force the object is capable of generating, even over the course of a relatively short descent.

TOPICS: Labor Law § 240(1), Labor Law § 241(6),

Mechanism of injury

BRIELMEIER V. LEGACY YARDS TENANT LLC 191 A.D.3d 499 February 11, 2021

The plaintiff, who was injured on a construction site, commenced a Labor Law action against the defendants. During discovery, the plaintiff provided inconsistent statements about how he was injured. In denying the defendants’ motion for summary judgment, the court held that the plaintiff’s inconsistent statements do not compel dismissal of his Labor Law § 240(1) and § 241(6) claims; rather, these statements present issues of fact to be resolved by a jury and a credibility determination.

FIRST DEPARTMENT

PRACTICE NOTE: A plaintiff’s inconsistent state-

ments about how he was injured do not compel dismissal of his Labor Law claims; rather, they present issues of fact to be resolved by a jury according to their credibility.

TOPICS: Labor Law § 240(1), Ladder,

Enumerated activity

ESCOBAR V. MRS II REALTY, LLC 191 A.D.3d 523 February 16, 2021

The plaintiff was injured after falling from a ladder while removing snow from a sign and awning at his employer’s facility. The appellate division affirmed the trial court’s denial of summary judgment on the plaintiff’s Labor Law § 240(1) claim.

In doing so, the court found that the plaintiff’s activity constituted routine maintenance, and was not “cleaning” under the Labor Law. PRACTICE NOTE: The plaintiff’s accident occurred

at his employer’s grocery store, rather than at a construction or similar worksite.

TOPICS: Labor Law § 240(1), Sole proximate cause

SINGH V. CITY OF NEW YORK 191 A.D.3d 547 February 16, 2021

The plaintiff was injured when a portion of a sidewalk bridge he was stranding on while dismantling collapsed, causing him to fall. The appellate division affirmed the trial court’s decision granting the plaintiff summary judgment as to liability on his Labor Law § 240(1) claim.

The plaintiff’s motion was supported by his General Municipal Law 50-h hearing testimony and Workers’ Compensation Board C-2 form that was signed by his supervisor. The court found that this evidence was sufficient and that the plaintiff’s motion was not premature.

PRACTICE NOTE: The court disregarded the de-

fendants’ arguments that the plaintiff’s testimony about his accident was inconsistent, finding that any version of the plaintiff’s story would have established liability under Labor Law § 240(1).

TOPICS: Labor Law § 240(1), Applicability of

scaffold statute to window washer SVL V. PVM LLC 191 A.D. 3rd 564 February 18, 2021

The plaintiff’s decedent, a window washer, fell four stories to his death while washing windows at his employer’s premises. The plaintiff’s administrator asserted liability under Labor Law §§ 200 and 240(1). The Appellate Division upheld dismissal of the plaintiff’s Labor Law § 200 claims, as the defendants neither controlled or supervised the means or methods of the plaintiff’s work. The court reinstated the plaintiff’s Labor Law § 240(1) claims based on evidence that the decedent had previously cleaned the exterior of the windows at the premises by leaning outside of the building, which the plaintiff’s employer’s principal had seen but did not tell the decedent or his co-worker not to do, or otherwise suggest that this was an unapproved method of cleaning the windows’ exterior. The court found that a window washer’s gravityrelated accident falls within the scope of Labor Law § 240(1) if the elevation-related hazard that is the proximate cause of the incident is attendant to his work, as that work was intended or was supposed to be performed. Based upon conflicting evidence on this issue, the court declined summary resolution of the plaintiff’s claims under Labor Law § 240(1).

PRACTICE NOTE: Labor Law § 240(1) can be ap-

plied in the context of a window washer’s gravityrelated accident. A defendant moving to dismiss those claims must demonstrate without refute that an injured worker’s manner of performing his gravity-related work violated his employer’s instructions and was done without notice to the owner, general contractor, or employer.

TOPICS: Labor Law § 240(1), Labor Law § 241(6),

Industrial Code provisions re: demolition work, Construction site perils v elevation-related hazards MAYORGA V. 75 PLAZA LLC 191 A.D. 3rd 606 February 25, 2021

The plaintiff, a demolition worker, was injured when a fire damper he was removing from a wall fell on him. The damper was 8 feet from the ground above a door frame and weighed 200 pounds. The appellate division upheld the worker’s motion for summary judgment, stating that the fall of the damper was an elevationrelated hazard, not an ordinary construction

site peril. The defendant’s failure to provide a rope to secure the damper was held to be an inadequate safety device. The court rejected the defendant’s contention that the plaintiff’s conduct was the sole proximate cause of the loss, stating that the defendant’s contention that the plaintiff’s failure to use a ladder or scissor lift was based on speculation and contradicted by the record. The court denied the plaintiff’s claim for violation of the Industrial Code as a basis for imposing Labor Law § 241(6) liability, holding that the provisions cited were inapplicable as the hazard arose from demolition work itself, not structural instability caused by the progress of demolition.

PRACTICE NOTE: Labor Law § 240(1) liability can

arise from the inadequacy or absence of a safety device, not simply by reason of a fall from a height.

TOPICS: Labor Law § 240(1), Sole proximate

cause, Recalcitrant worker

PORTILLO V. DRMBRE-85 FEE LLC 191 A.D.3d 613 February 25, 2021

The plaintiff was injured while removing overhead ceiling wires when the bucket he was standing on suddenly tipped over. Prior to the incident, the plaintiff unsuccessfully searched for an available ladder in the apartment and then improvised by using a nearby 18-inch bucket in an upside-down position to elevate himself. The court found that the plaintiff established a prima facie violation of Labor Law § 240(1). The defendants’ argument that the plaintiff was the sole proximate cause of his accident was unpersuasive as there was no standing order not to use the bucket to complete the project and, further, because the plaintiff witnessed his own supervisor doing so.

PRACTICE NOTE: To establish sole proximate

cause defense, a defendant must demonstrate that the plaintiff had adequate safety devices available; that the plaintiff knew both that they were available and that he or she was expected to use them; that the plaintiff chose for no good reason not to do so; and that had the plaintiff not made that choice, he or she would not have been injured.

FALL 2021 | 7

FIRST DEPARTMENT

TOPICS: Labor Law § 240(1), Trench, Safety

devices, Sole proximate cause

RUBIO V. NEW YORK PROTON MGT. LLC

is being delivered to an area that is not the construction site and is merely being stockpiled for future use.

192 A.D. 3d 438 March 4, 2021

The plaintiff was injured when a plywood sheet covering a three-foot-deep trench at the construction site where he was working gave way when he walked across it, causing him to fall into the trench below. Contrary to the defendants’ arguments, to establish his prima facie claim, the plaintiff was not obligated to set forth the type of safety device that should have been provided, or submit expert proof, where it was undisputed that the supplied safety device failed, in violation of the statute.

The defendants’ argument that a harness was readily available is insufficient to establish that the plaintiff was the sole proximate cause of his injury, as there is no evidence that he was instructed or expected to use a harness while working on what was supposed to be a properly planked and secure floor.

PRACTICE NOTE: To establish sole proximate

cause defense, a defendant must demonstrate that the plaintiff had adequate safety devices available; that the plaintiff knew both that they were available and that he or she was expected to use them; that the plaintiff chose for no good reason not to do so; and that had the plaintiff not made that choice, he or she would not have been injured.

TOPICS: Labor Law § 240(1), Covered worker,

Covered work, Worksite

TREACY V. INSPIRED EVENT PRODUCTIONS LLC 192 A.D.3d 444 March 4, 2021

The plaintiff, a union laborer, was unloading a truck when a crate, which was located on top of one of the stacks being moved, fell onto him.

The plaintiff was hired for delivery and unloading; he was not hired to perform any of the alleged construction. Further, the accident occurred on a permanent loading dock servicing a hotel, an area where none of the construction was being performed. The court found that the plaintiff, who was not permitted beyond the loading dock due to union and contractual rules, was not a covered worker under the Labor Law. PRACTICE NOTE: Delivery of equipment is not a

covered activity under Labor Law § 240(1) if it 8 | Labor Law Update

TOPICS: Labor Law § 240(1), Elevation-related

hazard, Ladder

MARTINEZ V. ST-DIL LLC 192 A.D. 3rd 511 March 16, 2021

The plaintiff fell from an unsecured scaffold while working at a 6-foot elevation. The court rejected the defendant’s claim that the plaintiff proved no defect with respect to the scaffold or ladder, did not prove the cause of the scaffold or ladder to move, and asserted that the plaintiff’s conduct was the sole proximate cause of his injuries. In holding for the plaintiff, the court found that the only device provided to the plaintiff, an unsecured scaffold with a maximum height of 6 feet, and an A-frame ladder, failed to afford him adequate protection to perform his sheetrock work at an elevation.

The court disagreed with the defendant’s contention that the plaintiff did not know exactly what caused the scaffold or ladder to move, finding that where there is no dispute that the safety devices failed, the plaintiff is entitled to summary judgment under Labor Law § 240(1).

Nevertheless, the court found that Labor Law § 241(6) was inapplicable to this case, as an alleged violation of the Industrial Code relating to a stepladder being opened to full position was inapplicable to the facts at bar.

PRACTICE NOTE: Labor Law § 240(1) does not re-

quire the plaintiff to establish the cause of a ladder or scaffold moving, only that he was denied proper protection from an elevation-related hazard.

TOPICS: Labor Law § 240(1), Elevation-related

risk, Safety devices

PALERMO V. 7W. 21 LLC 192 A.D.3d 560 March 23, 2021

The plaintiff and a coworker were carrying a wood form used to mold concrete and they stopped to rest. The plaintiff placed his end of the form on top of some vertical pipe about three to four feet off of the ground. Without warning, the coworker resumed carrying the form, causing it to fall from the piping and land on the plaintiff’s foot, causing injury. The appellate division affirmed the trial court’s denial of

the plaintiff’s motion for summary judgment as to liability on his Labor Law § 240 (1) claim. Although the court held that the plaintiff was engaged in a construction-related activity at the time of his accident, there were issues of fact as to whether the plaintiff’s activity at the time of his accident was elevation-related requiring the wood form be secured. Even if securing the wood form was required, the court found additional issues of fact as to whether there was a safety device contemplated under the statute that could have prevented the accident.

PRACTICE NOTE: The fact that the wood form had

been resting on vertical piping at the same level as the plaintiff without incident just prior to the accident, and only fell when moved by a coworker, was a critical element in the court’s denial of the plaintiff’s summary judgment motion.

TOPICS: Labor Law § 240(1), Labor Law § 241(6),

Foreseeability of collapse of permanent structure, Fire escape ladder not a covered structure under the Industrial Code GOYA V. LONGWOOD HOUSING DEVELOPMENT FUND CO. 192 A.D. 3rd 581 March 25, 2021

The plaintiff was injured when a permanent fire escape ladder collapsed as the plaintiff attempted to reach the top of a sidewalk shed.

The plaintiff asserted violations of Labor Law § 240(1), Labor Law § 241(6) and Labor Law § 200. The First Department upheld the plaintiff’s summary judgment under Labor Law § 240(1). It found that the collapse of a permanent structure is foreseeable as an exposure to an elevation-related risk. The court found that the plaintiff’s use of a permanent fire escape ladder presented a foreseeable elevation-related hazard as if the plaintiff had been using an extension ladder. However, the plaintiff’s Labor Law § 241(6) claim was dismissed since the fire escape ladder was not a floor, passageway, walkway, scaffold platform, or other elevated working surface.

PRACTICE NOTE: Labor Law § 240(1) liability can

be imposed in cases involving a permanent ladder where exposure to an elevation-related risk arises from the use of that ladder. This case may be relevant to other matters involving ladders affixed to a building. A fire escape ladder is not the type of surface that gives rise to a Labor Law § 241(6) violation.

FIRST DEPARTMENT

TOPICS: Labor Law § 240(1), Falling object

PADOS V. CITY OF NEW YORK 192 A.D.3d 596 March 25, 2021

The plaintiff was injured after being struck by rebar that fell from 30 feet above him. The trial court denied the plaintiff summary judgment on his claim for Labor Law § 240(1). The appellate division reversed, finding that the plaintiff’s testimony that a coworker was working with rebar 30 feet above him on the same column immediately before the accident was sufficient evidence that the rebar required securing. The plaintiff was not required to show the exact circumstances of how the rebar came to strike him.

PRACTICE NOTE: The admissibility of a cowork-

er’s unsigned deposition transcript was an issue raised in the defendants’ opposition to the plaintiff’s motion. This was ultimately a moot point, as the plaintiff’s testimony on its own was sufficient to establish a prima facie entitlement to summary judgment.

TOPICS: Labor Law § 200, Contractual

indemnification, Common law indemnification, Vicarious liability, Breach of contract ROBLES V. 635 OWNER 192 A.D.3d 604 March 25, 2021

The plaintiff was injured when he fell from a ladder. The First Department held that the owner defendant was entitled to contractual indemnification from the general contractor defendant when the plaintiff discontinued the common law negligence and Labor Law § 200 claims against the owner and the general contractor failed to raise an issue of fact as to its own negligence. Further, the general contractor signed the stipulation discontinuing the plaintiff’s Labor Law § 200 and common law negligence claims against the owner and general contractor. The court found that the owner neither controlled the ladder nor had notice of any defective condition. The owner’s liability was found to be purely vicarious and so the lower court correctly declined to dismiss the owner’s claims from contribution and common law indemnification. The lower court also correctly declined to dismiss the owner’s cross claim for breach of contract for failure to procure insurance where the general contractor did not dispute that it procured less coverage than the contract required.

PRACTICE NOTE: A breach of contract claim for

failure to procure insurance is not duplicative of a claim for contractual indemnification.

TOPICS: Labor Law § 241(6), Industrial Code

violations

GALLINA V. MTA CAPITAL CONSTR. CO. 193 A.D.3d 411 April 1, 2021

The plaintiff tripped while performing construction work at a premises and was injured. The appellate division reversed the trial court’s dismissal of the plaintiff’s Labor Law § 241(6) claim predicated on a violation of 10 NYCRR 23-1.7(e) (1), but affirmed the denial of the defendant’s motion for summary judgment predicated on a violation of 10 NYCRR 23-1.7(e)(2). In doing so, the court noted that the testimony about where the accident occurred was vague and inconsistent. Although the exact name of the area or room where the plaintiff’s accident occurred was unknown, it could not be said that it was not a “passageway” for the purposes of 10 NYCRR 23-1.7(e)(1). Therefore, that part of the plaintiff’s claim should not have been dismissed. On the contrary, the defendants’ argument that the plaintiff’s accident occurred in a “material room” unconnected to the ongoing construction was not supported by the evidence. Although the defendants used the term during depositions, no witness ever acknowledged the existence of such a room. The defendants’ motion for summary judgment on this part of the claim was therefore correctly denied.

PRACTICE NOTE: In denying summary judgment

to the defendants as to Labor Law § 241(6), the court disregarded arguments as to lack of notice of any dangerous condition. In doing so, the court noted that, because vicarious liability under Labor Law § 241(6) was not dependent on an owner or contractor’s capability to prevent or cure a dangerous condition, the absence of actual or constructive notice was equally irrelevant.

TOPICS: Labor Law § 240(1), Ladder, Falling

object, Safety devices ERBY V. 36 LLC 193 A.D.3d 412 April 1, 2021

The plaintiff was injured while standing on an Aframe ladder when an air-conditioning unit fell onto his head, causing him to fall off the ladder

onto the floor. The plaintiff had set up the ladder on a solid and clear floor and had been using the ladder prior to the incident to complete his work, i.e., connecting a “canvas” device to an air conditioning duct, per his foreman’s instructions. The plaintiff’s employer recently installed the air conditioning unit as part of its work on the project. The court found issues of fact as to whether: (1) the air conditioning unit constituted a falling object that was required to be secured for the purposes of the undertaking; and (2) whether the ladder provided adequate protection or whether he should have been provided with a different safety device.

PRACTICE NOTE: Summary judgment is inappro-

priate where there are issues of fact as to whether the falling object was required to be secured for the work to be performed and whether adequate safety device(s) were provided.

TOPICS: Labor Law § 240(1), Falling worker,

Summary judgment

GING V. F.J. SCIAME CONSTRUCTION CO., INC. 193 A.D. 3rd 415 April 1, 2021

The plaintiff was granted summary judgment under Labor Law § 240(1) when the defendants did not provide him a place to tie off and only prevented his fall off a structural steel tube on which he was standing by hooking his feet on said tube. The defendants argued that they had provided him with a safe place to work because the worker had a safety harness and lanyard at the time of his accident. The appellate division, First Department rejected this contention, noting that recovery under Labor Law § 240(1) may lie in a gravity-related accident, even if the employee does not actually fall.

PRACTICE NOTE: Labor Law § 240(1) can be im-

posed where a worker was injured in the process of preventing himself from falling, even if the worker does not completely fall from an elevation.

TOPICS: Labor Law § 240(1), Scaffold, Labor Law

§ 200, Notice, Supervision and control

HERRERO V. 2146 NOSTRAND AVENUE ASSOC., LLC 193 A.D.3rd 421 April 1, 2021

The plaintiff was injured when the platform from a baker’s scaffold fell through its framework, causing him to fall four feet to the ground.

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FIRST DEPARTMENT

He was using an unidentified contractor’s scaffold instead of the one made available to him by his employer. Despite lack of proof as to the ownership of the scaffold, the First Department granted summary judgment under Labor Law § 240(1), holding that the presence of a defective scaffold on site that is useable constitutes a dangerous condition that the property owner has authority to remedy. As to Labor Law § 200, the court found an issue of fact as to the general contractor’s liability under the dangerous condition theory as it had authority to control site safety, including the safety of the equipment on site, and a factual issue as to the whether the general contractor had actual or constructive notice of the dangerous condition and could have remedied it.

PRACTICE NOTE: Labor Law § 200 affords a basis

for liability even where the plaintiff cannot establish authority to control the plaintiff’s work or liability on a “cause and create” basis. If the plaintiff can establish a dangerous condition, the defense must establish lack of constructive notice of same and inability to rectify it.

TOPICS: Labor Law § 241(6), Labor Law § 200,

Means and methods, Anti-subrogation rule

TOPICS: Labor Law § 241(6), Tripping hazards,

Labor Law § 200, Contractual indemnification CRESSER V. 345 PARK AVE., L.P. 193 A.D.3d 526 April 15, 2021

The plaintiff was injured when he tripped over a raised floor installed by a subcontractor second third-party defendant. The First Department held that the defendants were entitled to summary judgment dismissing the Labor Law § 241(6) claim predicated on Industrial Code 12 NYCRR § 23-1.7(e)(1) because the subject floor was integral to the work being performed. The general contractor defendant was also entitled to summary judgment on the Labor Law § 200 claim because it did not control or direct the work of the contractor who installed the subject floor. The general contractor defendant was entitled to contractual indemnification from the subcontractor defendants because the accident arose from their acts in connection with the performance of the work.

Industrial Code 12 NYCRR § 23-1.7(e)(1) is inapplicable for the purpose of Labor Law § 241(6) liability where the alleged condition tripped over was integral to the work being performed.

PRACTICE NOTE:

HAMMER V. ACC CONSTR. CORP. 193 A.D.3d 455 April 6, 2021

The plaintiff was injured when he tripped on a loop of electrical wire. The First Department upheld the lower court’s dismissal of the Labor Law § 241(6) claim that was premised on Industrial Code 12 NYCRR §23-1.7(e)(2) because the loop of wire was an integral and permanent part of the construction. The court held that the Labor Law § 200 and common law negligence claims, however, should not be dismissed against the general contractor as there were questions of fact as to whether the general contractor controlled the means and methods of the plaintiff’s work. There was evidence that the general contractor coordinated the work areas and had directed the plaintiff to work in the room where the accident occurred. The court further held that the owner defendants’ claims for indemnification against the trades were barred by the anti-subrogation rule to the extent that the trades’ insurance carriers were or were required to defend and indemnify the owner defendants.

PRACTICE NOTE: There is no violation of Industri-

al Code § 23-1.7(e)(2) where the condition that caused an alleged trip or slip is integral to the work being performed.

10 | Labor Law Update

TOPICS: Labor Law § 240(1), Scaffold, Sole

proximate cause, Contractual indemnification BATLLE V. NY DEVS. & MGT. 193 A.D.3d 562 April 22, 2021

The plaintiff was working on a scaffold without railings when it moved, causing him to fall to the floor and become injured. The trial court granted the plaintiff summary judgment as to liability on his Labor Law § 240(1) claim, and denied summary judgment to the defendants on their contractual indemnification claim against the third-party defendant. The appellate division reversed both of these decisions. As for Labor Law § 240(1), the court found issues of fact as to whether the plaintiff was the sole proximate cause of his injury. Although the plaintiff testified that he was ordered to work on the scaffold despite the lack of railings, a foreman testified that prior to the accident, he ordered the plaintiff to stop working on the scaffold and get the necessary railings, which were available on the job site. The court also found that contractual indemnification should have been granted against the third-party defendant, as the defendants made a prima facie showing

that the accident was caused by the means and methods of the work and that the defendants did not exercise supervisory control over the plaintiff’s activity. The third-party defendant failed to raise an issue of fact as to the defendants’ negligence.

PRACTICE NOTE: Although there were conflicting

accounts as to whether the plaintiff had locked the scaffold’s wheels prior to his accident, the court did not consider this in determining sole proximate cause, as the scaffold was never tested after the plaintiff’s accident to see if the wheels had been locked or if the brakes were functioning.

TOPICS: Labor Law § 240(1), Common law

indemnification

FRITZ V. JIG INDUS. 193 A.D.3d 641 April 29, 2021

The plaintiffs were working in the platform of a boom lift when it collapsed and caused them to be injured. The plaintiffs brought an action for, among other things, Labor Law §§ 200, 240(1), and strict product liability based upon a manufacturing defect. With respect to the Labor Law § 240(1) claim, the appellate division affirmed the trial court’s granting of the plaintiff’s motion for summary judgment as to liability. The court found that any defect in the design of the boom lift would not be a superseding cause of the plaintiff’s accident. The court also affirmed the trial court’s denial of the common law indemnification claims. Given that the plaintiffs’ Labor Law § 200 and general negligence claims still remained pending, fact issues as to any negligence on behalf of the defendants precluded summary judgment.

PRACTICE NOTE: In denying summary judgment

on common law indemnification, the court noted that none of the defendants had moved for dismissal of the plaintiffs’ Labor Law § 200 and general negligence claims.

TOPICS: Labor Law § 240(1), Ladder, Recalcitrant

worker

PING LIN V. 100 WALL STREET PROPERTIES, LLC 193A.D. 3rd 635 April 29, 2021

The plaintiff fell while working on a 6-foot Aframe ladder during construction of a drop ceiling below a structural ceiling. The plaintiff

FIRST DEPARTMENT

fell from a ladder that moved when sheetrock he held fell, hitting the side of his head. The court found violation of Labor Law § 240(1), in that the defendants failed to secure the ladder against movement or slippage. Because the ladder failed to provide adequate protection, there was no need for the plaintiff to demonstrate that the ladder was defective. The court also found that the falling sheetrock was not an intervening superseding cause of the accident, in that the plaintiff’s fall was directly related to the work he was performing. The court rejected a defense of recalcitrant worker, in that there was no evidence that the accident would have been averted had the plaintiff used an available 8-foot ladder.

PRACTICE NOTE: Where a safety device does not

provide adequate fall protection, a plaintiff is not required to demonstrate a defect to said device. A defense of intervening superseding cause only applies where the force in question is unrelated to the work performed.

TOPICS: Labor Law § 200, Labor Law § 241(6),

Lighting

TOPICS: Labor Law § 240(1), Secured object

DIAZ V. HHC TS REIT LLC 193 A.D.3d 640 April 29, 2021

The plaintiff, a concrete worker, was injured when metal conduit pipes that were unsecured fell on him when he was trying to remove a piece of plywood from between a scaffold and a column. The pipes had been resting vertically, unsecured, against the column. The First Department held that the plaintiff was entitled to summary judgment as the record demonstrated conclusively that the pipes were not adequately secured for the purpose of the undertaking, as Labor Law § 240(1) requires.

The third-party defendant was not entitled to dismissal of the contribution and common law and contractual indemnification claims because there were issues of fact as to whether the pipes belonged to them.

Liability under Labor Law § 240(1) will be found where material is not adequately secured as required even if the plaintiff’s work did not involve the subject material and the defendants did not have knowledge of the presence of the unsecured materials.

PRACTICE NOTE:

CRUZ V. METRO. TR. AUTH. 193 A.D.3d 639 April 29, 2021

The plaintiff was injured when he was struck in the torso by a washer that fell from above while he and a coworker were standing on a berm of loose dirt and debris that was supporting a water main they were attaching to beams overhead. The First Department held that the plaintiff’s Labor Law § 241(6) claims were properly dismissed because the berm did not constitute a slippery condition as contemplated by Industrial Code 12 NYCRR 23-1.7(d). There was no foreign substance that could cause slippery footing that could have been removed. The court further held that there was no evidence that the lighting fell below the statutory standard of Industrial Code 12 NYCRR 23-1.30. Finally, the Labor Law § 200 claims were also properly dismissed as the berm was part of or inherent in the work being performed.

PRACTICE NOTE: The duty to provide workers with

a safe place to work does not extend to hazards that are inherent to the work being performed.

TOPICS: Labor Law § 241(6), Passageway,

Industrial Code

TORRES V. TRIBOROUGH BRIDGE & TUNNEL AUTH. 193 A.D. 3d 665 April 29, 2021

In dismissing the plaintiff’s Labor Law § 241(6) claim, the court concluded that the area where the plaintiff fell did not constitute a passageway under Industrial Code Provision 12 NYCRR 231.7(e)(1). Further, the court concluded that the demolition debris resulted directly from the ongoing work being performed, which the plaintiff had been assigned to clean up, and thus constituted an integral part of that work, precluding a claim under Industrial Code Provision 12 NYCRR 23-1.7(e)(2).

PRACTICE NOTE: The debris on which a plaintiff

slips on a construction site must not be integral to his/her work to qualify as “debris” under 12 NYCRR 23-1.7(e)(2).

TOPICS: Labor Law § 240(1), Labor Law § 200,

Ladder, Common law negligence

MULLINS V. CTR. LINE STUDIOS 194 A.D.3d 421 May 4, 2021

The plaintiff was injured when he climbed a ladder that was part of a set piece constructed by the defendant. A rung came undone and the plaintiff fell. The First Department held that the defendant was entitled to dismissal of the Labor Law §§ 240(1) and 200 claims as it was not a statutory agent. The defendant had no authority to supervise and control the plaintiff’s work.

The court held that there was an issue of fact regarding the plaintiff’s common law negligence claim as to whether the defendant created or exacerbated a dangerous condition so as to have launched a force or instrument of harm.

The defendant augmented the ladder under the direction of the third-party defendant but an issue of fact existed as to whether the defendant could have reasonably anticipated that gluing the rung to the top of the ladder would pose a hazard and likely cause injury. The defendant claimed the ladder was not meant to be OSHA compliant and it altered the ladder under the direction of the third-party defendant who assured that the actors would not ascend to the top of it.

PRACTICE NOTE: A claim for common law neg-

ligence may lie even though there is no Labor Law § 200 liability.

TOPICS: Labor Law § 240(1), Scaffold, Planks,

Prima facie showing

DYSZKIEWICZ V. CITY OF NEW YORK 143 N.Y.S.3d 524 May 6, 2021

The plaintiff worker fell through a scaffold approximately six feet to the next level below when the unsecured plank he was standing on shifted or slipped. The plaintiff testified to this effect, and the court found that he made a prima facie showing of entitlement to summary judgment on his § 240(1) claim. The court found the defendants’ arguments of “impossibility” and no witness corroboration to be unpersuasive. Further, the court noted that statements from the plaintiff’s co-workers that the scaffold was clean and free of debris were not relevant to the accident or the defendants’ argument, since the plaintiff’s claim was based on the allegation that the plank was unsecure.

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FIRST DEPARTMENT

Unrebutted deposition testimony that an unsecured plank slipped out from under the plaintiff is prima facie evidence establishing a claim under Labor Law § 240(1).

PRACTICE NOTE:

TOPICS: Labor Law § 240(1), Comparative

negligence, Gravity-related hazard

GREENE V. RAYNORS LANE PROP. LLC 2021 Slip Op 03114 May 13, 2021

The plaintiff was injured when he was lifting a microlam, which is a column of manufactured lumber weighing as much as 1,000 pounds used to support heavy loads. He was instructed by his supervisor to lift the end of one to allow a forklift’s blades to slide under it. The First Department reversed the lower court and denied the plaintiff’s motion for summary judgment as to the Labor Law § 240(1) claim because there was an issue of fact as to whether the plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.

The First Department also held that the defendant was not entitled to summary judgment because the plaintiff was placed in a position that required him to lift an extremely heavy piece of lumber without any safety devices. Any action on the plaintiff’s part in lifting the beam went to the issue of comparative negligence, which is not a defense to a Labor Law § 240(1) claim. The plaintiff was under no duty to demand an alternate safety device on his own.

PRACTICE NOTE: Workers are not under a duty to

demand an alternate safety device on their own because placing that burden on employees would “eviscerate” the protections put in place by the legislature.

worksite based on deposition testimony. The court also dismissed Labor Law § 241(6) claims, as the work performed, application of a plastic compound to sheetrock walls, was more of a work area than a passageway.

claim, the court found that the plaintiff’s evidence that tag lines were not used and that the hoist and load suddenly decelerated, established violations of Industrial Code §§ 23-2.3(c) and 23-8.1(f).

PRACTICE NOTE: Labor Law § 241(6) claims in-

PRACTICE NOTE: The plaintiff’s motion for sum-

volving tripping hazards require demonstration that the work area was a passageway. Labor Law § 200 claims require demonstration of constructive notice of a dangerous condition.

TOPICS: Labor Law § 240(1), Safety devices,

Elevation-related risk

HYATT V. QUEENS W. DEV. CORP. 194 A.D.3d 548 May 18, 2021

Summary judgment in favor of the plaintiff on his Labor Law § 240(1) claim was affirmed. The plaintiff and a coworker moved a tower scaffold. The plaintiff was then working on reshore scaffolding that was not connected to the tower scaffolding when the tower scaffolding fell and hit him. The court held that the plaintiff was injured as a result of the defendants’ failure to provide adequate safety devices. Securing the tower scaffolding would not have hindered the purpose of breaking down scaffolding as the tower scaffolding was not integral to the context and purpose of the work.

PRACTICE NOTE: A defendant faces liability under

Labor Law § 240(1) when a worker is injured as a result of a defendant’s failure to provide adequate safety devices.

TOPICS: Labor Law § 240(1), Labor Law § 241(6),

Hoisting, Industrial Code violations

MACGREGOR V. MRMD NY CORP. TOPICS: Labor Law § 200, Constructive notice,

Labor Law § 241(6), Work area, Passageway AMAYA V. PURVES HOLDINGS LLC 194 A.D.3d 536 May 18, 2021

The plaintiff was injured when he tripped on an electrical cord. The court dismissed Labor Law § 200 claims against the general contractor, finding that the cord was not attached or plugged into the wall for a sufficient length of time prior to the happening of the accident to permit the defendant to discover it. Moreover, the general contractor lacked control over the 12 | Labor Law Update

mary judgment included an affidavit from the plaintiff stating that tag lines were not used. The court accepted this affidavit, finding that it did not flatly contradict any portion of his deposition testimony and that the plaintiff was not questioned about tag lines or other safety devices.

143 A.D.3d 550 May 18, 2021

The plaintiff was standing on a truck rigging steel beams during a storm. Taglines were not used to secure the beams. The plaintiff was injured when the beams were suddenly dropped and he was knocked off of the truck. The trial court granted the plaintiff summary judgment as to liability for his Labor Law §§ 240(1) and 241(6) claims. The appellate division affirmed.

The court found that, among other things, the defendant admitted that tag lines were not used during the hoisting process. Specifically, with respect to the plaintiff’s Labor Law § 241(6)

TOPICS: Labor Law § 240(1), Authority or control

over work, Supervision and control

PENA V. INTERGATE MANHATTAN LLC 194 A.D. 3rd 557 May 20, 2021

The plaintiff, a glazier on the façade of the building, was injured when a power cord fell from above the scaffold on which he was working and struck his arm. The court upheld denial of the plaintiff’s motion for summary judgment under Labor Law § 240(1), holding that there were issues of fact as to whether the scaffold designer had the requisite control of supervisory authority over the work area sufficient to be designated a statutory agent. The court noted that the proposal for the designer’s duties stated that the equipment was the responsibility of the general contractor after installation. The court further relied on testimony that a safety inspector’s employee had the final say as to when work could be performed on the scaffold, and the plaintiff and his co-workers received direction from their employer and not the subcontractor.

PRACTICE NOTE: Liability under the Labor Law

cannot be established without proof of exclusive control of supervisory authority over the work area in question.

TOPICS: Labor Law § 240(1), Ladder, Sole

proximate cause, Contractual indemnification, Common law indemnification HOGAN V. 590 MADISON AVE. 194 A.D.3d 570 May 20, 2021

The plaintiff was working on a ladder at a construction project when it suddenly gave way, and caused the plaintiff to fall and become injured. The appellate division affirmed the

FIRST DEPARTMENT

trial court’s granting of the plaintiff’s motion for summary judgment as to Labor Law § 240(1), finding that the plaintiff’s testimony was prima facie evidence that he was injured as a result of not being provided proper protection against elevation-related risk. The court also found issues of fact as to whether the plaintiff’s act of stepping between a desk and the ladder was the sole proximate cause of his fall. The court affirmed the denial of the owner’s and lessee’s contractual indemnification claims against the plaintiff’s employer and another contractor, finding issues of fact as to whether the accident arose out of, or was in connection with, the contractors’ work on the premises. The owner and lessee’s common law indemnification claims, however, were properly dismissed, as there was no evidence that either of the defendant contractors supervised the plaintiff’s work or were otherwise negligent.

PRACTICE NOTE: In finding issues of fact as to

whether the plaintiff was the sole proximate cause of his accident, the court noted that the plaintiff’s act of stepping between the desk and the ladder was, at most, comparative fault, and therefore not a defense to Labor Law § 240(1).

TOPICS: Labor Law § 240(1), Labor Law § 241(6),

Exercise of supervisory control over worksite, Proof of violation of Industrial Code required ALBERTO V. DESANTO DEMOLITION COMPANY 2021 N.Y. App. Div. LEXIS 3380 May 25, 2021

The plaintiff, a masonry contractor, fell from a scaffold while walking across a platform to get a screw. The two planks the workers used to walk on the platform broke, causing the plaintiff and the planks to fall to the ground. The court denied a motion by the defendants to dismiss a claim under Labor Law § 240(1), holding that issues of fact existed as to whether the defendant was the general contractor on the project. The court noted that evidence existed as to whether the defendant had exercised supervisory control over the injury-producing work. The court granted motions for summary judgment dismissing Labor Law § 241(6) claims, finding that violations of OSHA do not establish liability, which requires pleading and proof of violations of applicable Industrial Code regulations.

PRACTICE NOTE: While work permits alone do

not establish general contractor status, if other evidence demonstrates supervisory control by a general contractor, summary judgment will not

be granted to that defendant. A violation of an Industrial Code regulation must be established to support a claim under Labor Law § 241(6).

TOPICS: Labor Law § 200, Labor Law § 241(6),

Indemnification

DIGIROLOMO V. 160 MADISON AVE. LLC 194 A.D.3d 640 May 27, 2021

The plaintiff was injured after tripping in a floor penetration at a construction site. The trial court denied a defendant’s motion for summary judgment dismissing the plaintiff’s Labor Law §§ 200 and 241(6) claims. The appellate division reversed, finding that the evidence that this defendant must have uncovered the floor penetration, as it was the only contractor that would have reason to do so, was unsubstantiated assertions or speculations. In reaching this conclusion, the court noted that the floor penetration had been covered the last time this defendant had worked in the area a week before the plaintiff’s accident.

Further, a safety contractor had inspected the area the day before the plaintiff’s accident and found the floor penetration to be covered. The evidence also showed that this defendant was not working in the area on the date of the plaintiff’s accident and had not been in the area for at least one week prior.

PRACTICE NOTE: The plaintiff also brought a Labor

Law § 241(6) claim. This was dismissed as abandoned, as the plaintiff did not oppose that part of the defendant’s motion for summary judgment.

Also, because there was no basis for holding this defendant liable to the plaintiff, the court also dismissed all cross claims against it for common law indemnification and contribution.

TOPICS: Labor Law § 240(1), Scaffold, Adequate

safety devices, Sole proximate cause

HERNANDEZ V. 767 FIFTH PARTNERS 144 N.Y.S.3d 559 May 27, 2021

The plaintiff worker was injured when the plywood platform of a baker’s scaffold upon which he was standing to install window soffits suddenly collapsed beneath him as he reached overhead to drill a screw into a stud. The court found that the plaintiff established a prima facie violation of Labor Law § 240(1), and the defendant failed to submit proof that the scaffold was an adequate safety device for the work per-

formed and failed to raise a triable issue of fact that the plaintiff was the sole proximate cause of the accident. Evidence that the plaintiff allegedly failed to abide by safety instructions, including self-inspecting the scaffold, is not sufficient to preclude summary judgment.

PRACTICE NOTE: To establish sole proximate

cause defense, a defendant must demonstrate that the plaintiff had adequate safety devices available; that the plaintiff knew both that they were available and that he or she was expected to use them; that the plaintiff chose for no good reason not to do so; and that, had the plaintiff not made that choice, he or she would not have been injured.

TOPICS: Labor Law § 240(1), Labor Law § 200,

Issues of fact, Contractual indemnification, Common law indemnification, Supervision and control, General Obligations Law PADILLA V. ABSOLUTE REALTY 2021 NY Slip Op 03416 June 1, 2021

In granting a conditional order of dismissal of a general contractor’s claim for contractual indemnification against a subcontractor, the court noted that issues of fact exist as to the general contractor’s negligence to dismiss the claim outright. The general contractor had previously been found liable to the owner under common law indemnification based on the general contractor’s actual exercise of supervision and control over the subcontractor’s work; and to the plaintiff “only because of the absolute liability provisions of Labor Law § 240(1).”

As such, the court found that General Obligations Law prohibiting indemnifying a contractor for its own negligence is inapplicable unless and until the general contractor is found at least partially negligent. However, if the general contractor is found negligent, the indemnification provision would be unenforceable since its full enforcement would result in the contractor being indemnified for its own negligence.

PRACTICE NOTE: The General Obligations Law

5-322.1, which prohibits indemnifying a contractor for its own negligence, is inapplicable unless and until the general contractor is found at least partially negligent. However, if the general contractor is found negligent, the indemnification provision would be unenforceable since its full enforcement would result in the contractor being indemnified for its own negligence.

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FIRST DEPARTMENT

TOPICS: Labor Law § 240(1), Labor Law § 200,

Summary judgment, No hoisting equipment AGLI V. 21 EAST 90 APARTMENTS CORP. 2020 N.Y. App. Div. LEXIS 3652 June 8, 2021

The plaintiff, an elevator worker, and his coworkers attempted to lower a steel bed plate down an exterior flight of stairs on a hand truck.

The equipment slipped, injuring the plaintiff, who was not provided hoisting equipment for use on a staircase. The appellate division upheld the award of summary judgment under Labor Law § 240(1), finding that the lack of safety equipment provided to the plaintiff was a substantial factor in his injuries. The court denied the defendant’s motion for summary judgment under Labor Law § 200, finding that the plaintiff and his co-workers were denied the right to bring materials into the building via a different method that would have avoided the plaintiff’s use of a staircase. In so finding, the court rejected the defendant’s claim that they did not control the means and methods of the plaintiff’s work and that the plaintiff did not establish a dangerous premises condition.

PRACTICE NOTE: Labor Law liability arises from

conditions that injure a plaintiff due to the application of gravity. Evidence of inspection and maintenance of activity at the time of the plaintiff’s incident must be provided by the defendants in order to support a motion for summary judgment under Labor Law § 200.

TOPICS: Labor Law § 240(1), Sidewalk bridge,

Harness, Sole proximate cause GOMEZ V. TRINITY CTR. LLC 2021 N.Y. Slip Op 03810 June 15, 2021

The plaintiff worker fell between 16 and 24 feet to the ground when the corrugated metal flooring of the sidewalk bridge on which he was standing while dismantling the bridge bent downward. The plaintiff testified that he was wearing a harness, but that the sidewalk bridge did not have a lifeline to which he could attach the safety line. The court found that the plaintiff established a prima facie violation of Labor Law § 240(1) that was the proximate cause of his injuries. The defendant failed to raise an issue of fact as to its contention that the plaintiff was the sole proximate cause of his accident, and the defendant’s expert failed to opine on where on the bridge a tie-off would have been either practicable or safe, given the maximum range of the harness line.

14 | Labor Law Update

PRACTICE NOTE: To establish sole proximate

cause defense, a defendant must demonstrate that the plaintiff had adequate safety devices available; that the plaintiff knew both that they were available and that he or she was expected to use them; that the plaintiff chose for no good reason not to do so; and that, had the plaintiff not made that choice, he or she would not have been injured.

TOPICS: Labor Law § 240(1), Ladder, Sole

proximate cause

HOXHAJ V. W. 30TH HI LLC 2021 NY Slip Op 03811 June 15, 2021

The plaintiff was working on an unsecured ladder with one foot at the ladder’s top and the other on the rung below. The ladder began to wobble, which caused the plaintiff to lose his balance, fall, and become injured. The appellate division awarded the plaintiff summary judgment on his Labor Law § 240(1) claim, finding that there was no testimony or evidence to contradict the plaintiff’s testimony as to how the accident occurred. Although the defendants offered differing versions as to why the ladder may have wobbled in the first instance, the wobbling ladder still established that the plaintiff was not supplied with adequate protection under Labor Law § 240(1), which was the proximate cause of his injury. Further, because the plaintiff’s testimony was undisputed, any evidence as to his alleged misuse of the ladder was, at most, comparative negligence and did not establish that he was the sole proximate cause of his injury.

PRACTICE NOTE: In reversing the trial court’s

decision, the appellate division noted that the plaintiff was not required to identify exactly what caused his accident in order to be entitled to summary judgment as to liability under Labor Law § 240(1).

TOPICS: Labor Law § 200, Labor Law § 241(6),

Labor Law § 240(1), Common law negligence, Judicial notice CORONA V. HHSC 13TH ST. DEV. CORP. 2021 NY Slip Op 03907 June 17, 2021

The plaintiff was employed to deconstruct and disassemble a sidewalk bridge. He was injured when he fell on the sidewalk abutting the defendants’ property and impaled his eye

on a tree guard. The First Department held that the defendants’ summary judgment motion was premature as to the Labor Law § 200 and common law negligence claims. The motion was made prior to depositions based on an affidavit that claimed that the defendants had nothing to do with the tree guard. However, the defendants had responded to a notice to admit where they admitted to installing, designing and constructing the tree guard. The court held that the Labor Law § 241(6) claim predicated on Industrial Code 12 NYCRR § 23-1.7(e)(2) was correctly dismissed because the tree guard was a permanent fixture of the property and bore no relation to the work being performed. The claim predicated on Industrial Code 12 NYCRR § 235.1(h) was also correctly dismissed because the absence of a “designated person” was not a proximate cause of the accident. The First Department held that the Labor Law § 240(1) claim was also properly dismissed because the injury was not the result of an elevation-related risk.

The plaintiff was walking on the sidewalk and stepped on two stacked, wet two-by-fours that slipped from under him.

PRACTICE NOTE: The court may take judicial no-

tice of a response to a notice to admit not included in the motion papers that is e-filed via NYSCEF in Supreme Court.

TOPICS: Labor Law § 240(1), Scaffold, Sole

proximate cause

SANCHEZ V. 1 BURGESS RD. 2021 NY Slip Op 03928 June 17, 2021

The plaintiff was injured when he fell 20 feet from a scaffold that contained broken or loose planks. The appellate division affirmed the trial court’s granting of summary judgment as to liability on the plaintiff’s Labor Law § 240(1) claim.

The court noted that any discrepancies as to where exactly the plaintiff fell, or how far he fell, were not dispositive, as any version of the plaintiff’s testimony regarding his accident established a violation of the statute. In establishing entitlement to summary judgment, the plaintiff was not required to demonstrate any specific defect in the scaffold, and it was irrelevant that the scaffold was used without incident shortly before the accident.

PRACTICE NOTE: Evidence that the plaintiff may

have improperly removed nails from scaffold planks just prior to his accident was, at most, comparative fault, and did not establish that he was the sole proximate cause of his own injury.

FIRST DEPARTMENT

TOPICS: Labor Law § 240(1), Appropriate safeguards

MCVICKER V. PORT AUTH. OF N.Y. & N.J. 2021 NY Slip Op 04087 June 24, 2021

The plaintiff was injured when he was struck by 1,000-pound cylindrical rebar column his co-workers were pushing down a ramp. The First Department held that the plaintiff was entitled to summary judgment on the Labor Law § 240(1) claim because the column was a load that required securing and no appropriate safeguard was utilized.

PRACTICE NOTE: Under Labor Law § 240(1), ap-

propriate safeguards for loads that require securing include a hoisting device, barrier, or exclusion zone.

TOPICS: Labor Law § 240(1), Labor Law § 241(6),

Sole proximate cause, Industrial Code violations HAYEK V. METRO TRANSP. AUTH. 2021 NY Slip Op 04103 June 29, 2021

The plaintiff was injured when a load of Lshaped steel rebar fell and struck him. The appellate division granted the plaintiff’s motion for summary judgment on Labor Law §§ 240(1) and 241(6) claims. With respect to Labor Law § 240(1), the court found that the evidence showed the plaintiff was struck by rebar that was either improperly hoisted or improperly secured. The defendants failed to raise an issue of fact as to whether the plaintiff was the sole proximate cause of his injury. As for the plaintiff’s § 241(6) claim, the court found the undisputed evidence established multiple Industrial Code violations. These violations included: § 23-8.1(e)(3) (no spreader bar in place when hoisting the 20-foot length of rebar), § 23-8.1(e) (4) (the load was not boxed), § 23-8.1(f)(2)(i) (the rebar load suddenly accelerated and fell on top of the plaintiff), and § 23-8.1 (the load was not properly secured and balanced). The court noted that all of these Industrial Code violations were sufficiently specific to support a Labor Law § 241(6) claim.

PRACTICE NOTE: Because the undisputed evi-

dence established that the plaintiff was following the instructions of his foreman at the time of his injury, the appellate division found that the plaintiff could not have been the sole proximate cause of his own injury.

FALL 2021 | 15

FIRST DEPARTMENT SECOND DEPARTMENT

TOPICS: Owners, Covered person

YONG QIAO ZHAO V. A.T.C. CONSTR. GROUP CORP. 190 A.D.3d 788 January 13, 2021

The plaintiff was a laborer employed by defendant A.T.C. Construction, which was performing work at two unrelated projects. The plaintiff was assigned to work at one of the project locations but not the other. The plaintiff took debris from the project where he was assigned to work and was injured when he fell from a ladder while putting the debris in A.T.C.’s dumpster located at the other project site, where he had not been assigned to work. The court upheld dismissal of the Labor Law § 240(1) claim against the defendant property owner at which the dumpster was located because the plaintiff was exclusively assigned work at another property and had not been engaged by any entity to work at the defendant owner’s property.

which requires employers to remove or cover “foreign substances” which may cause slippery footing, was inapplicable because the slippery substance resulted naturally from the work the plaintiff performed and, thus, was not considered “foreign.”

PRACTICE NOTE: An owner or general contractor

is liable only if it actually exercised supervisory control over the injury-producing work, and slippery substances resulting directly from the plaintiff’s own work do not constitute a “foreign” substance under the Industrial Code.

ing constructed for a non-commercial purpose.

The plaintiff was also granted summary judgment against the other defendants and the court noted that the collapse of the scaffold for no apparent reason creates a presumption that the scaffold did not afford proper protection.

The court also held that the plaintiff’s participation in building the scaffold does not create an issue of fact as to sole proximate cause.

PRACTICE NOTE: The court will always look to the

use and purpose of the property when determining whether the homeowner exemption applies.

TOPICS: Enumerated activity, Covered work,

TOPICS: Labor Law § 240(1), Homeowner

REYES V. ASTORIA 31ST ST. DEVELOPERS, LLC

ELLIASSIAN V. G. F. CONSTRUCTION

to a property owner, the plaintiff must show that he was “permitted or suffered to work on a building or structure” after having been hired by the owner, contractor or their agent. But, property ownership alone is insufficient. The property owner who does not itself contract for the work must have some nexus with the injured worker, such as a lease agreement, grant of an easement, or other property interest.

The plaintiff iron worker was tying rebar when he observed co-workers having difficulty attempting to pass a 30-foot-long piece of rebar across an excavation site and stopped what he was doing, ran up a 9-foot hill to help them, and slipped when he grabbed the rebar. The defendants moved for summary judgment and the Second Department affirmed, holding that the plaintiff’s choice to engage in an activity that he was not authorized or instructed to engage in was the sole proximate cause of his injuries and that a slip was not an elevation-related risk contemplated by Labor Law § 240.

TOPICS: Labor Law § 200, Common law

PRACTICE NOTE: When analyzing a potential sole

The plaintiff owned a property containing a single-family home and was also the president of a real estate company. He hired a contractor to perform excavation work on behalf of the real estate company and, while visiting the property, was injured when he stepped on a low concrete retaining wall that was slick with oil.

The plaintiff was found to be a covered person under Labor Law § 240(1) due to the fact that he was on the property on behalf of his company to inspect progress of the work being performed, but the defendant was granted summary judgment dismissing the Labor Law § 240(1) cause of action because the height differential of the retaining wall was not a physically significant elevation covered by the statute.

PRACTICE NOTE: For Labor Law liability to attach

negligence, Labor Law § 241(6)

GIGLIO V. TURNER CONSTR. CO. 190 A.D.3d 829 January 20, 2021

The plaintiff was injured while cutting and placing tiles in a bathroom when he slipped and fell on a discarded plastic sheet used to package the tile which had become wet due to the spray from a nearby wet saw used to cut the tiles. In dismissing the plaintiff’s Labor Law § 200 and common law negligence claims, the court found that the accident arose directly from the manner in which the plaintiff’s work was performed, which generated both the water from the use of the wet saw as well as the discarded plastic sheet from the tile packaging.

The defendants did not exercise supervision or control of the performance of the injuryproducing work. In dismissing the plaintiff’s Labor Law § 241(6) claim, the court noted that Industrial Code Provision 12 NYCRR 23-1.7(d), 16 | Labor Law Update

Labor Law § 240 190 A.D.3d 872 January 20, 2021

proximate cause defense, examination of the plaintiff’s role at the job site and assigned tasks can lead to a viable defense.

exemption, Burden of proof, Sole proximate cause 190 A.D.3d 947 January 27, 2021

PRACTICE NOTE: Not every fall from elevation

leads to liability under the Labor Law, and the exact height differential should be examined.

TOPICS: Labor Law § 240(1), Sole proximate

cause, Homeowner exemption DEBENEDETTO V. CHETRIT 190 A.D.3d 933 January 27, 2021

The plaintiff was injured when a scaffold collapsed while he was performing carpentry work. The defendant homeowner was granted summary judgment due to the homeowner exemption as the property was a single-family home being constructed for use by their children and they did not direct or control the work. Notably, despite the fact that they were developing an adjacent property for commercial purposes, the homeowner exemption was still applicable to this property which was be-

TOPICS: Covered person, Labor Law § 240(1)

GANCARZ V. BROOKLYN PIER 1 RESIDENTIAL OWNER, L.P. 190 A.D.3d 955 January 27, 2021

The plaintiff was injured when he slipped and fell on a wet piece of paper on the concrete floor of the basement of the defendants’ construction site. The defendants were granted summary judgment dismissing his Labor Law § 241(6) claims and the appellate division held that decision was in error since the accident occurred in a construction area as contemplated under Labor Law § 241(6) and the concrete sur-

SECOND FIRST DEPARTMENT

face was a floor which implicates the protections of New York Industrial Code § 23-1.7(e)(2) which requires that floors be kept clear of debris and hazards.

PRACTICE NOTE: Do not forget to examine the

location of the accident. Here, the defendants’ motion was originally granted because they argued the basement where the accident occurred was not part of the plaintiff’s work area, but was reversed on appeal because there was also work going on in the basement.

TOPICS: Labor Law § 241(6), Industrial Code

violations, Industrial Code regulations

WASHINGTON V. CITY OF NEW YORK 190 A.D.3d 1009 January 27, 2021

The plaintiff, an electrician, was injured when he fell from a temporary stair at a New York City-owned plant. He filed a notice of claim and submitted to a 50-h hearing, prerequisites to filing a lawsuit against the city, in which he made no mention of working as part of a construction project. He eventually filed a lawsuit alleging violations of Labor Law §§ 200, 240(1) and 241(6).

Both parties moved for summary judgment and the court held that the defendants were entitled to summary judgment since the plaintiff’s Labor Law claims were foreclosed as there was no allegation of an ongoing construction project in the plaintiff’s notice of claim or 50-h testimony.

PRACTICE NOTE: If defending a municipal defen-

dant, proper examination of the notice of claim and statutory hearing transcript are the first step in analyzing a Labor Law claim.

TOPICS: Protected activities, Labor Law § 240(1),

Labor Law § 241(6), Labor Law § 200, Burden of proof NUGRA V. ARAMALLA 191 A.D.3d 683 February 3, 2021

The plaintiff tripped over coiled wires and sued the general contractor and electrical subcontractor. The plaintiff’s Labor Law causes of action were dismissed against both defendants (common law negligence remained) and the court held that the subcontractor was not entitled to dismissal of the general contractor’s indemnification claims because they had not submitted sufficient evidence to eliminate all triable issues of fact.

PRACTICE NOTE: In order to have a viable summary

judgment motion, the evidence must conclusively prove that there are no issues of fact.

TOPICS: Authority or control over work, Means

and methods, Labor Law § 200, Notice DEVOY V. CITY OF NEW YORK 192 A.D.3d 665 March 3, 2021

TOPICS: Labor Law § 240(1), Labor Law § 241(6),

Labor Law § 200, Burden of proof, Indemnification ORTEGA V. 669 MEEKER AVE., LLC 191 A.D.3d 686 February 3, 2021

The plaintiff was injured when he fell from a ladder while plastering holes in an interior wall of a building. The court held that the plaintiff was not entitled to summary judgment because his original submissions only indicated plastering which creates a triable issue of fact as to whether he was engaging in an enumerated protected activity under Labor Law § 240(1).

PRACTICE NOTE: It appears that the plaintiff was

working as part of a painting project, a protected activity, however his original submissions did not say this in his original affidavit. Hence, proper preparation of summary judgment affidavits can be decisive.

The plaintiff was working as a laborer in a train tunnel and was standing on a platform to avoid train traffic when he was struck by a piece of equipment that had turned sideways on a passing train, causing him to fall off the platform.

The plaintiff was entitled to summary judgment under Labor Law § 240(1) since his injuries were a foreseeable consequence of standing on a small platform above a moving train and because the height differential that he fell was sufficient to invoke protection of the statute.

PRACTICE NOTE: The defendants did not dispute

the plaintiff’s factual assertions and, instead, relied on legal arguments in opposition to the motion, which proved unavailing.

TOPICS: Labor Law § 240(1), Elevation-related

hazard, Elevation-related risk, Burden of proof MCKNIGHT V. METRO-NORTH R.R.

TOPICS: Protected activities, Covered work,

Labor Law § 240(1)

RODRIGUEZ V. METROPOLITAN TRANSPORTATION AUTHORITY 191 A.D.3d 1026 February 24, 2021

The plaintiff was injured when a piece of equipment he was moving slipped and struck him.

The defendants were entitled to summary judgment dismissing the plaintiff’s Labor Law § 200 causes of action since they demonstrated that they did not have actual or constructive notice of the alleged condition which caused his injury and no authority to supervise or control the means and methods of the plaintiff’s work.

PRACTICE NOTE: The court clarified that, under

Labor Law § 200, if the allegations are that the injury arose from a dangerous condition, a defendant must have either created the condition or have actual or constructive notice of it, and if the allegations are that the accident arose from the manner of the work, a defendant must have authority to exercise supervision and control over the work.

192 A.D.3d 679 March 3, 2021

The plaintiff had finished working for the day and realized he left his car keys on the second floor of the building, so he retrieved them using an aerial lift. As he was descending, the lift “released,” causing the plaintiff to slam his head into the railing of the lift’s basket. The defendants were entitled to summary judgment because the plaintiff was not engaged in an enumerated protective activity at the time of his accident since his and his co-workers’ work was completed for the day when the accident occurred.

PRACTICE NOTE: Here, the timing of the accident was critical in showing that the plaintiff was not entitled to the extraordinary protections of Labor Law § 240(1).

TOPICS: Protected activities, Falling object,

Covered work, Labor Law § 240(1)

BIANCHI V. NEW YORK CITY TR. AUTH. 192 A.D.3d 745 March 10, 2021

The plaintiff, an employee of an electrical subcontractor, was injured when construction materials fell on him while he was working in a box FALL 2021 | 17

FIRST DEPARTMENT SECOND DEPARTMENT

truck owned by his employer. At the close of evidence, the defendants moved for judgment as a matter of law and the court held that same was properly granted since, in the case of a falling object under Labor Law § 240(1), there must be evidence that the objects were being hoisted and, hence, were required to be secured under the law.

condition or have actual or constructive notice of it to be found liable, and if the allegations are that the accident arose from the manner of the work, a defendant must have authority to exercise supervision and control over the work to be found liable.

PRACTICE NOTE: Not every falling object will re-

TOPICS: Labor Law § 241(6), Defective

sult in liability under Labor Law §240(1).

equipment, Machinery

CRUZ V. 1142 BEDFORD AVENUE, LLC TOPICS: Labor Law § 240(1), Falling object,

Burden of proof

KAVOURAS V. STEEL-MORE CONSTR. CORP. 192 A.D.3d 782 March 10, 2021

The plaintiff was injured when he tripped over a paint spray line that was obscured by garbage.

The defendants were not entitled to summary judgment dismissing the plaintiff’s Labor Law § 241(6) claim because they did not demonstrate that the garbage was not a violation of Industrial Code § 23-1.7(e)(2), which requires floors be kept free of debris, or that the violation did not proximately cause the plaintiff’s accident.

PRACTICE NOTE: Under Labor Law § 241(6), a vio-

lation alone is not sufficient; there must also be a showing of proximate cause.

RODRIGUEZ V. HY 38 OWNERS, LLC 192 A.D.3d 839 March 10, 2021

The plaintiff was repairing the fallen leaf of a double-leaf plywood door on a perimeter fence when the non-broken leaf was blown shut by a gust of wind, striking him and causing injury.

The defendants were not entitled to summary judgment dismissing the plaintiff’s negligence and Labor Law § 200 causes of action since they presented evidence only that they did not have control over the means and methods of the plaintiff’s work, but failed to address whether they created the condition or had actual or constructive notice of it.

PRACTICE NOTE: Under Labor Law § 200, if the

allegations are that the injury arose from a dangerous condition, a defendant must create the 18 | Labor Law Update

PRACTICE NOTE: In Labor Law § 240(1) cases, the

plaintiff must demonstrate that a defective or missing safety device was the proximate cause of the plaintiff’s injury.

192 A.D.3d 859 March 17, 2021

The plaintiff was successful on a Labor Law § 241(6) cause of action when he sustained injuries to his hand while operating a table saw at a construction site. The § 241(6) claim was predicated upon violations of Industrial Code § 231.5(c)(3) and § 23-1.12(c)(2) asserted against the owner defendants. The court found that the plaintiff’s uncontroverted deposition testimony was sufficient to establish that his injuries were proximately caused by the malfunctioning table saw, which was not equipped with a protective guard or spreader, which was in violation of the relevant Industrial Code provisions. Notably, the fact that the plaintiff was the sole witness to the accident did not preclude the award for summary judgment in favor of the plaintiff.

PRACTICE NOTE: In Labor Law § 241(6) cases, the

plaintiff must demonstrate that an applicable and sufficiently specific Industrial Code violation was the proximate cause of the plaintiff’s injury.

TOPICS: Labor Law § 241(6), Industrial Code

violations, Industrial Code regulations

grab. The plaintiff also met his prima facie burden with respect to his Labor Law § 241(6) cause of action predicated upon Industrial Code § 12 NYCRR § 23-5.3(e) by establishing that the scaffold lacked safety railings in violation of the regulation and that the violation was the proximate cause of his injuries.

TOPICS: Labor Law § 240, Scaffold, Railings,

TOPICS: Labor Law § 240, Falling object,

Hoisting, Securing

ANDRES V. N.10 PROJECT 192 A.D.3d 953 March 24, 2021

The plaintiff failed to make a Labor Law § 240(1) case when he was allegedly injured when an electrical panel box that he was attempting to remove from a wall fell and struck him. The plaintiff failed to demonstrate that the electrical panel box was an object that required securing for the purposes of the undertaking. The court stated that in a falling object case, the injured worker must demonstrate the existence of a hazard contemplated under the statute and that at the time the object fell, it either was being hoisted or secured or required hoisting or securing for the purposes of the undertaking.

PRACTICE NOTE: In a falling object case, the

plaintiff must demonstrate that the falling object was required to be hoisted or secured for the purposes of the undertaking.

Falling object

LEON-RODRIGUEZ V. ROMAN CATHOLIC CHURCH OF SAINTS CYRIL AND METHODIUS 192 A.D. 3d 883 March 17, 2021

The plaintiff was injured while demolishing a ceiling in a building, using a scaffold that did not have safety railings. The plaintiff was prying wood beams off of the concrete structure above the drop ceiling when a large piece of concrete dislodged and fell. The plaintiff was hit with the concrete and fell off of the scaffold.

The court found that the plaintiff demonstrated his prima facie entitlement to judgment on his Labor Law § 240(1) cause of action through his testimony that the scaffold he was using lacked a safety railing and that he tried to grab onto something as he fell and there was nothing to

TOPICS: Labor Law, Carrying objects

CHRISTIE V. LIVE NATION CONCERTS 192 A.D.3d 971 March 24, 2021

The plaintiff, a construction laborer, was injured while carrying a heavy steel truss with four coworkers on ground level. The court properly granted the defendants’ summary judgment motions in demonstrating that the plaintiff twisted his knee when he and his co-workers lost their grip on the truss that they were carrying. The defendants further demonstrated that the plaintiff’s injury was not caused by the failure to provide adequate protection against an elevation-related hazard encompassed by Labor Law § 240(1).

SECOND FIRST DEPARTMENT

PRACTICE NOTE: The plaintiff must establish that

the accident occurred as a result of an elevation-related hazard.

TOPICS: Labor Law, Covered work

CRUTCH V. 421 KENT DEV. 192 A.D.3d 977 March 24, 2021

The plaintiff sustained injuries when a railing on a loading dock gave way, causing him to fall. The plaintiff, an HVAC worker, waited on the loading dock for an elevator to take him up to the various floors where he would be working that day. While waiting for the elevator, the plaintiff leaned back against one of the railings, and a horizontal support gave out, causing him to fall from the loading dock onto the concrete approximately 4- to 5-feet below. The court found that the lower court improperly denied the plaintiff’s entitlement to the protections of Labor Law § 240(1). The plaintiff established that he needed to use the elevator to gain access to the various floors where he would be working throughout the day. Therefore, waiting on the loading dock for the elevator, even before working hours began, was necessary to the plaintiff’s work. The fact that the plaintiff was not engaged in HVAC work at the time of his accident does not preclude the application of Labor Law § 240(1).

PRACTICE NOTE: The plaintiff walking to the work

area or gaining access to the work area may be considered “covered work” if it is necessary to the plaintiff’s work.

TOPICS: Contractual indemnification, Contract

documents, Express language, Additional insured status CRUTCH V. 421 KENT DEV. 192 A.D.3d 982 March 24, 2021

The court found that the third-party defendant was not entitled to summary judgment on the third-party claim for contractual indemnification because it failed to include certain contract documents in its moving papers. The right to contractual indemnification depends upon the specific language of the contract. A promise to indemnify cannot be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances. The third-party plaintiff failed to

meet its prima facie burden to establish entitlement to judgment as a matter of law, dismissing the third-party cause of action for contractual indemnification. The subcontract referred to certain contract documents, including one entitled “Subcontractors Indemnification and Insurance Requirements,” which were explicitly incorporated by reference into the subcontract.

By failing to include these contract documents in its moving papers, the movant failed to establish prima facie that the subcontract did not place any duty upon the movant to indemnify the defendants. The court stated that a provision in a construction contract cannot be interpreted as requiring the procurement of additional insured coverage unless such a requirement is expressly and specifically stated.

PRACTICE NOTE: When moving for an order seek-

ing contractual indemnification, the court must be provided with all relevant contract documents.

TOPICS: Labor Law § 240(1), Ladder, Falling

object, Inspection, Defect

MAJERSKI V. CITY OF NEW YORK 193 A.D.3d 715 April 7, 2021

The plaintiff, who fell from a ladder at a school renovation, was not entitled to summary judgment on Labor Law § 240(1) claim. The plaintiff was on a ladder at the premises disassembling a sidewalk bridge which had already been partially dismantled, when a metal pipe detached from the sidewalk bridge and struck him in the knee, causing him to fall from the ladder. The plaintiff testified that he had inspected the ladder and it was not defective and that it was secure. The court found that the plaintiff failed to establish his prima facie entitlement to judgment as a matter of law on the issue of liability on his Labor Law § 240(1) claim due to an unsecure or defective ladder and on the falling object claim. The court found that the plaintiff’s testimony did not eliminate triable issues of fact as to how the accident occurred and whether this was a situation where a securing device of the kind enumerated in Labor Law § 240(1) would have been necessary or expected. The plaintiff also failed to establish prima facie entitlement to judgment as a matter of law on Labor Law § 241(6). He predicated his § 241(6) claim on a violation of Industrial Code § 23-3.3(b)(3) which governs the demolition of walls and partitions and mandates continuing inspections during hand demolition operations. The court found that these provisions are intended to guard

against hazards caused by structural instability resulting from the progress of demolition. They do not apply to hazards caused by the actual performance of demolition work.

PRACTICE NOTE: In a falling object case, the

plaintiff must demonstrate that the falling object was or was required to be hoisted or secured for the purposes of the undertaking.

TOPICS: Subcontractor, Agent, Owners, Authority

or control over work, Supervision and control PEREIRA V. HUNT/BOVIS LEND LEASE ALLIANCE II 193 A.D.3d 1085 April 28, 2021

A subcontractor that laid electrical cables in a baseball stadium was entitled to judgment as a matter of law dismissing claims under Labor Law § 241(6) because it established that it was not an agent of the owner or general contractor. The electrical subcontractor lacked the authority to supervise and control the work that brought about the plaintiff’s injury. The court stated that to hold a defendant liable as an agent of the general contractor or the owner for violations of Labor Law, there must be a showing that it had authority to supervise and control the work that brought about the plaintiff’s injury. In this case, the electrical subcontractor established that it lacked the authority to supervise and control the work that caused the plaintiff’s injury and no triable issues of fact were raised in opposition to its motion.

PRACTICE NOTE: A Labor Law defendant must

be an owner, general contractor, or a statutory agent thereof that had the authority to supervise, direct and control the plaintiff’s work at the time of accident.

TOPICS: Ladder, Defect, Proximate cause

SOCZEK V. 8629 BAY PARKWAY 193 A.D.3d 1093 April 28, 2021

The plaintiff was injured when he fell from an extension ladder while working on a building undergoing renovation. The Supreme Court properly granted the plaintiff’s motion for summary judgment on the issue of liability on the Labor Law § 240(1) cause of action. The plaintiff established prima facie the defendant’s liability in that the defendants provided the plainFALL 2021 | 19

FIRST DEPARTMENT SECOND DEPARTMENT

tiff with a ladder that lacked rubber feet and that the ladder slid on the concrete surface on which it had been placed, causing the plaintiff to fall to the ground.

PRACTICE NOTE: In a defective ladder case, the

plaintiff must establish that the defect was the proximate cause of his injuries.

TOPICS: Enumerated activity, Routine

maintenance, Labor Law § 240(1), Labor Law § 241(6), Labor Law § 200 CANTALUPO V. ARCO PLUMBING & HEATING 194 A.D.3d 686 May 5, 2021

The plaintiff, an air conditioning repair person, was injured while performing a temporary repair on an air conditioning unit of a building. The plaintiff was injured when a 500-pound component of the air conditioner known as a division plate, which he and his co-workers were removing, struck a condenser head which had been removed weeks earlier and left leaning unsecured against the unit. The condenser head fell and struck the plaintiff, causing injuries. The plaintiff testified that, normally, the condenser head is secured by a chain fall but in this case was not. The owner sought to dismiss the Labor Law claims brought against them arguing that the plaintiff was not engaged in an enumerated activity at the time of the accident, as to Labor Law §§ 240(1) and 241(6), and that they did not have notice of the condition which caused the accident under Labor Law § 200. The court held that repairs such as this were covered under the broader list of enumerated activities in Labor Law § 240(1), but found that it was not “construction” or attendant to construction under Labor Law § 241(6) and dismissed that cause of action. As to Labor Law § 200, the court found there were issues of fact as to whether the owner had notice of the condition since the condenser head had been left in this condition for two weeks prior to the accident. The court also noted that under Labor Law § 200 issues of fact existed as to whether this incident arose out of the means and methods of the work.

PRACTICE NOTE: Whenever a Labor Law claim

is being evaluated, be sure to check whether the plaintiff was a covered person engaged in an enumerated activity and keep in mind the definition of what is covered is different for both Labor Law § 240 and § 241(6).

20 | Labor Law Update

TOPICS: Enumerated activity, Labor Law § 241(6),

Labor Law § 200

MARNEY V. CORNELL KENT II HOLDINGS 194 A.D.3d 917 May 19, 2021

The plaintiff was injured while drilling for soil samples on a property to determine if the soil was suitable for excavating and constructing a structure. No construction work was going on at the time, and the property had been cleared well before the plaintiff began his work. The plaintiff alleged violations of Labor Law §§ 241(6) and 200 as against the owner and the geotechnical testing company who hired his employer. The plaintiff’s complaint was dismissed on the basis that he was not engaged in construction under Labor Law § 241(6) and the defendants did not supervise the means and methods of the work.

For purposes of Labor Law § 241(6) “construction” is defined by 12 NYCRR 23-1.4(b)(13) which provides that it is all work of the types performed in the construction, erection, alteration, repair, maintenance, painting, or moving of buildings or other structures.

PRACTICE NOTE: Arguments as to enumerated

activities should not be confined to routine maintenance as there are other activities besides routine maintenance which are not covered.

TOPICS: Labor Law § 240(1), Labor Law § 241(6),

Labor Law § 200, Permanently affixed ladder CAIN V. AMERESCO, INC. 2021 NY Slip Op 03572 June 9, 2021

The plaintiff was injured when he allegedly fell from a permanently affixed ladder that provided him with access to a mechanical room located above a pool office. The plaintiff’s task was to install temperature controls in the mechanical room. The mechanical room was accessed through a metal hatch door in the ceiling of the pool office. However, the ladder stopped short of the mechanical room floor. The plaintiff moved for summary judgment on Labor Law § 240(1) and the defendants moved for summary judgment on Labor Law §§ 241(6) and 200. As to the Labor Law § 240(1) claims, the defendants opposed using an incident report and two statements from their employees which claimed the plaintiff admitted at the scene he forgot that he placed cardboard over the opening of the hatch and fell through. The court found issues of fact as to whether there was a violation of Labor Law § 241(1) and denied the plaintiff’s motion. As to

Labor Law § 241(6) the court found the plaintiff had not alleged applicable Industrial Code violations and dismissed his claim. Finally, as to Labor Law § 200, the court denied the defendant’s motion in that they failed to establish they did not create a dangerous condition or have notice of the condition.

PRACTICE NOTE: Early investigation can be the

difference between a liability finding and a meritorious defense.

TOPICS: Enumerated activity, Labor Law § 241(6),

Labor Law § 200

LLAMA V. YU YU CHEN 2021 NY Slip Op 03580 June 9, 2021

The plaintiff’s employer in this matter was hired to perform brick and tile work on a construction project. On the day of the accident, the plaintiff was assigned to power wash a chimney on the premises and was not provided with gloves. The plaintiff was injured when the caustic cleaning solution used in the power washer made contact with his hands, causing burns. The plaintiff brought suit against the project owner, alleging violations of Labor Law §§ 241(6) and 200.

The defendant moved for summary judgment to dismiss the § 241(6) claim on the basis that the plaintiff was not engaged in an enumerated activity. The court denied the defendant’s motion on the basis that they failed to establish that the work the plaintiff was engaged in at the time of the accident was not part of a broader construction project which would have come within the purview of § 241(6). As to Labor Law § 200, the defendants sufficiently established that they did not supervise, direct or control the means and methods of the plaintiff’s work, and that cause of action was dismissed.

PRACTICE NOTE: When examining the plaintiff’s

activities to determine whether they are engaged in an enumerated activity, the plaintiff’s role in the project as a whole needs to be examined and not just the task engaged in at the specific moment of the accident.

TOPICS: Labor Law § 200, Unsafe condition

MOWLA V. BAOZHU WU 2021 NY Slip Op 03582 June 9, 2021

The plaintiff sued the owner of single-family residence based upon violations of Labor Law §§ 240(1) and 200. The plaintiff was injured

SECOND FIRST DEPARTMENT

while using an extension ladder to gain access to the roof of a garage to clean various brick columns. As the plaintiff attempted to transition from the ladder to the roof of the garage, he attempted to grab a brick column which fell apart and caused him to lose his balance and fall to the ground. The trial court granted the defendant’s motion on the single family homeowner exemption, but found issues of fact as to the Labor Law § 200 cause of action. The defendant appealed as to Labor Law § 200. In finding issues of fact existed as to whether the defendant had notice of the condition, the appellate division specifically noted that the defendant did not come forward with any proof that the condition did not exist for a sufficient amount of time to allow him to remedy it.

PRACTICE NOTE: This case serves as a reminder

that, although the single family homeowner exemption is available, a separate showing under Labor Law § 200 and common law negligence must be made to secure a full dismissal.

TOPICS: Labor Law § 241(6), Labor Law § 200,

Industrial Code

KAUFFMAN V. TURNER CONSTR. CO. 2021 NY Slip Op 04124 June 30, 2021

The plaintiff was employed as a shop steward by a subcontractor on a construction site. Part of his responsibilities were to operate a masonry table saw and a chopping gun. The plaintiff alleged he suffered hearing loss as a result of operating this equipment since he was not given proper protection. He alleged violations of Labor Law §§ 241(6) and 200. In dismissing the plaintiff’s complaint on the Labor Law § 241(6) cause of action, the court noted the plaintiff failed to allege an Industrial Code violation which was either applicable or sufficiently specific to support his claim. As to Labor Law § 200, the court found the defendant general contractor came forth with sufficient proof that they only had general supervisory authority and lacked the requisite authority to supervise and direct the plaintiff’s work.

PRACTICE NOTE: The failure to provide a safety

devise does not in and of itself make a claim fall under the Labor Law. The Labor Law only applies to certain specific categories of accidents.

FALL 2021 | 21

FIRST DEPARTMENT THIRD DEPARTMENT

TOPICS: Labor Law § 240(1), Ladder, Recalcitrant

TOPICS: Workers’ Compensation Law § 11,

TOPICS: Labor Law § 200, Common law

BENNETT V. SAVAGE

LORICA V. KRUG

ABREU V. RODRIGUEZ

The plaintiff was performing insulation work and sustained injuries when the A-frame ladder he stood upon moved forward and caused him to fall. He testified that the ladder was free of defects and placed in a secure manner. He further testified that he maintained a threepoint “safety stance” while on the ladder, with both feet and one hand in contact with the ladder while he held onto the insulation hose with the other hand. However, during his deposition he gestured in a manner suggesting that he instead held onto the hose with both hands. The defendants contended that the plaintiff’s gestures created a question of fact as to whether he was a recalcitrant worker by failing to maintain a three-point safety stance. The court held that, even if true, the plaintiff’s conduct would merely present a factual question as to the plaintiff’s comparative fault which is not a defense to a Labor Law § 240(1) cause of action.

Accordingly, the plaintiff was found entitled to partial summary judgment on that claim.

The plaintiff was injured while working for the third-party defendant plumbing and heating company. Workers’ Compensation Law § 11 prohibits indemnification claims against an employer except, inter alia, where there the employer has entered into a written indemnification or contribution agreement prior to the accident.

The employer appealed the denial of its motion to dismiss the third-party plaintiff’s contractual indemnity claim, which was based upon a contract executed after the incident. The third-party plaintiff’s witness testified that the contract was intended to be effective as of a pre-incident date, whereas the third-party defendant’s principal testified that he never intended the indemnification agreement to apply retroactively even though the agreement was dated prior to the incident. The appellate division noted that the preincident date was printed on the agreement next to the third-party defendant’s principal’s signature. In view of the pre-incident date appearing next to the third-party defendant’s signature and the conflicting testimony of the respective parties’ intent, the court held that there were questions of fact as to the parties’ intent to apply the agreement retroactively and whether they entered into the indemnification agreement prior to the accident.

The plaintiff was injured while working in the defendant’s residence when he fell as a result of a defective ladder that buckled. Evidently, due to the homeowner exemption under Labor Law §§ 240(1) and 241(6), those claims were dismissed without objection. However, the ladder that the plaintiff used was owned and provided by the defendant, who allowed the ladder to be used notwithstanding his knowledge that the ladder was unsafe. Although the defendant testified that he told the workers not to use the ladder, he did not deny that he nevertheless allowed the ladder to be used. The court found that the defective ladder provided by the defendant was “considered part of the overall condition of the premises[.]” Therefore, the court found that the plaintiff established his prima facie entitlement to judgment on his common law negligence and Labor Law § 200 claims based upon evidence that a defective condition of the premises caused the injury. The defendant’s assertion that he did not supervise or control the work was not a defense to a claim that the injury was caused by a condition of the premises.

worker, Comparative fault 192 A.D.3d 1243 March 4, 2021

PRACTICE NOTE: A plaintiff’s own testimony that

a ladder is sturdy and securely placed is not sufficient to defeat his Labor Law § 240(1) claim.

His failure to maintain a secure position while on the ladder would merely constitute contributory negligence, which is not a defense to a Labor Law § 240(1) claim.

22 | Labor Law Update

Indemnification

2021 NY Slip Op 03642 June 10, 2021

PRACTICE NOTE: An indemnification agreement

will only apply retroactively where contracting parties’ intent to apply the agreement retroactively is clear, including an express term reflecting that the agreement apply as of a pre-accident date. Where the parties give conflicting testimony of their intent and where the indemnity agreement contains no term providing for its retroactive application, the court will find a question of fact as to whether the agreement applies to an accident occurring prior to the agreement’s execution.

negligence, Ladder 2021 NY Slip Op 03890 June 17, 2021

PRACTICE NOTE: A defendant homeowner who

does not supervise the work but provides equipment known to be defective to construction laborers is subject to negligence and Labor Law § 200 liability because such equipment will be considered part of the overall condition of the premises.

FOURTH FIRST DEPARTMENT

TOPICS: “Cleaning” under Labor Law § 240(1)

HEALY V. EST DOWNTOWN, LLC 191 A.D.3d 1274 February 5, 2021

The plaintiff was a maintenance and repair technician employed by the defendant property owner’s property manager. The plaintiff asserted a Labor Law § 240(1) claim because he was injured when he fell from a ladder while attempting to remove a bird’s nest over the entryway of a commercial tenant. The court observed that whether an activity is “cleaning” under the statute presents a question of law for the court to resolve after reviewing the totality of all factors, though the presence or absence of any one factor is not dispositive. To constitute “cleaning” under Labor Law § 240(1), the activity must: (1) not be routine, in the sense that it occurs on a daily, weekly, or on a relatively frequent basis as part of ordinary maintenance of the commercial premises; (2) require either specialized equipment or expertise, or the unusual deployment of labor; (3) generally involve significant elevation risks unlike those in typical household cleaning; and (4) be related to any ongoing construction, renovation, painting, alteration, or repair project at the commercial premises. In granting the plaintiff judgment on his Labor Law § 240(1) claim, the court found that the plaintiff’s activity was “cleaning” under the statute, principally because it was an atypical activity given the plaintiff’s customary job duties and involved elevations greater than is typical in household cleaning.

PRACTICE NOTE: In deciding that the activity was

“cleaning” under Labor Law § 240(1), particular focus was placed upon the unusual and nonroutine nature of the activity when compared to the plaintiff’s typical job duties.

TOPICS: Labor Law § 240(1), Collateral estoppel

of Workers’ Compensation Board decision, Proof on CPLR 3211 dismissal motion LEMISZKO V. MOSOVICH 2014 FAMILY TRUST 191 A.D.3d 1363 February 5, 2021

The plaintiff laborer fell from a ladder and brought Labor Law claims against the property owner and a contractor. The contractor moved to dismiss the Labor Law claims based upon the Workers’ Compensation Board’s decision finding that there was no contract between the defendant contractor and the plaintiff’s uninsured employer. The court upheld the denial

of the defendant contractor’s motion, holding that collateral estoppel did not operate to defeat the plaintiff’s claims because the board’s finding on a discrete issue (existence of a contract) did not preclude the plaintiff from establishing that he was, nevertheless, a protected worker under the Labor Law. The court added that the board’s finding did not preclude the possibility that the defendant contractor was an agent of the owner in hiring the plaintiff’s employer, or that the defendant contractor was a general contractor, in that it may have been responsible for coordination and supervision of the entire project and had authority to enforce safety standards and hire responsible subcontractors. The court also upheld the denial of the defendant contractor’s CPLR 3211 motion to dismiss the co-defendant owner’s crossclaim for contractual indemnification, finding the contractor’s submission of an incomplete contract was insufficient to establish that the owner has no cause of action.

contractor, or agent under the statutes. The court further determined that DirecTV was properly granted a protective order foreclosing further depositions because documentary discovery had already shown that the plaintiff’s employer received its work order from non-party WildBlue, and that nothing showed DirecTV’s involvement with the installation project. The court also upheld the denial of the plaintiff’s motion to hold the employer in civil contempt for failing to comply with the pre-suit disclosure order because the plaintiff waited five years to seek that relief, which the court said was excessive; and the plaintiff was not prejudiced because discovery had already shown WildBlue’s involvement in the project. Finally, the court upheld the denial of the plaintiff’s application to hold the employer in criminal contempt because there was no evidence that the employer’s failure to comply with the pre-suit disclosure order was willful.

PRACTICE NOTE: For collateral estoppel to attach,

for the violation of a pre-suit disclosure order where enforcement of the order is not timely pursued, and where the sought-after disclosure was provided during discovery proceedings in the subsequent litigation.

there must be an identity of issues between the matter decided in the prior proceeding and the pending proceeding. The Workers’ Compensation Board’s determination of issues bearing on an employer’s or upstream contractor’s liability to provide workers compensation benefits to an injured worker may present different issues than those bearing on that worker’s entitlement to the protections of the Labor Law.

PRACTICE NOTE: A plaintiff may be denied relief

TOPICS: Homeowner exemption, Labor Law

§ 241(6), Supervision and control O’MARA V. RANALLI

TOPICS: Parties subject to Labor Law liability,

Pre-suit disclosure, Protective orders, Civil and criminal contempt STEFFEN V. DIRECTV, INC. 191 A.D.3d 1281 February 5, 2021

The plaintiff was injured while installing a satellite dish on the roof of a private residence.

He was employed by non-party MasTec North America, which was a subcontractor of nonparty WildBlue Communications. However, the plaintiff drove a truck and wore a uniform with defendant DirecTV’s logo. DirecTV was not involved in the satellite dish’s installation and the plaintiff was not working for it. The plaintiff commenced pre-suit discovery proceedings designed to clarify the relationship between his employer and DirecTV, but he received incomplete disclosure and had not sought enforcement of the pre-action disclosure order before commencing suit against DirecTV. The court upheld the dismissal of Labor Law claims against DirecTV because it was not an owner,

191 A.D.3d 1494 February 11, 2021

The plaintiff, who fell from an unsecured ladder during the construction of a private residence, brought Labor Law claims against the property owner. The court found questions of fact as to whether the defendant was entitled to the Labor Law’s homeowner exemption because the defendant provided the ladders used by the contractors, the defendant was on-site and gave directions daily to the contractors, and the defendant refused to allow the contractors to construct stairs as a safer alternative to using ladders. The defendant’s actions also created a question of fact as to his authority to direct, control, and supervise the work, thereby precluding summary judgment on the Labor Law § 200 cause of action. The court additionally noted evidence showing that the defendant was a member of a real estate company that hired the non-party contractor for another project, thereby showing that the defendant had sophistication in both knowing about and insuring himself against absolute liability.

FALL 2021 | 23

FIRST DEPARTMENT FOURTH DEPARTMENT

PRACTICE NOTE: A homeowner who provides

equipment to construction contractors and exerts authority over their means and methods may lose the protection of the Labor Law’s homeowner exemption.

TOPICS: Labor Law § 241(6), Industrial Code

§ 23-1.7(d), Contractual indemnification, Affidavit contradicting deposition testimony CHRISMAN V. SYRACUSE SOMA PROJECT 192 A.D.3d 1594 March 19, 2021

The plaintiff brought Labor Law claims against a commercial property owner arising from his slip and fall on metal decking due to the presence of snow. The defendant general contractor brought third-party contractual indemnity claims against a steel mesh supplier (Supplier) and also against the steel mesh installer. In support of his Labor Law § 241(6) claim, the plaintiff relied upon Industrial Code § 23-1.7(d), which directs that workers must not be permitted to use certain surfaces that are in a slippery condition and directs the removal of snow and ice.

Although the defendants did not contest the plaintiff’s showing that this code section was violated, the defendant had presented evidence of its snow removal efforts. The court denied the plaintiff summary judgment on his Labor Law § 241(6) cause of action because the violation of Industrial Code § 23-1.7(d) is only some evidence of negligence, and it is up to the fact finder to decide whether the defendant’s operation and conduct at the worksite was reasonable under the circumstances. The court also found that the defendants’ motion for contractual indemnity against the Supplier was properly denied because the Supplier was operating under a purchase order that did not have indemnity terms. The defendants contended that a contract with indemnity terms applied, but the Supplier established that it neither signed nor was provided with that contract.

PRACTICE NOTE: A violation of the Industrial

Code, even if uncontested, is merely some evidence of negligence for the fact finder to resolve in consideration of the reasonableness of the defendant’s worksite operations and conduct.

An affidavit submitted in opposition to a summary judgment motion is insufficient to defeat the motion where it contradicts the witness’ deposition testimony in an attempt to raise feigned issues of fact. A contractual indemnity agreement will be strictly construed, and no obligation to indemnify will be found, unless 24 | Labor Law Update

the promise to indemnify can be clearly implied from the contract’s language, the purpose of the agreement, and the surrounding facts and circumstances.

TOPICS: Labor Law § 200, Labor Law § 240(1),

Common law negligence, Directed verdict DENNIS V. CERRONE 192 A.D.3d 1572 March 19, 2021

The plaintiff alleged Labor Law §§ 200 and 240(1) claims arising from a residential construction project. The defendant, Vincent Cerrone, was the residential owner who was previously granted summary judgment. However, he was also a part owner, general superintendent, and an officer of defendant Mark Cerrone Inc. (MCI), whose employees worked on various portions of the project. The matter proceeded to a non-jury trial and the trial court granted MCI’s application for a directed verdict. The appellate division reversed, finding that triable issues of fact remained and the trial court was required to view the evidence in the light most favorable to the non-moving party, resolve credibility issues in favor of the non-moving party, and grant the motion only if there is no rational basis by which the fact finder could find for the non-moving party. The court then determined that there was a rational process by which the fact finder could have found that MCI had requisite power to enforce safety standards, choose responsible contractors, or coordinate and supervise the project, thereby supporting Labor Law § 240(1) liability. The court further found that there was a rational process by which the fact finder could have found that MCI had the ability to supervise and control the methods and manner of the work, thereby supporting negligence and Labor Law § 200 liability.

PRACTICE NOTE: The appellate division deter-

mined that the trial judge should not have granted a directed verdict because there were issues to be decided by the fact finder. However, this appeal arose from a bench trial, and so the trial judge deciding the motion for a directed verdict was also the fact finder. It would, therefore, appear that where a bench trial presents credibility issues or colorable issues of fact, an appealable issue may be avoided by allowing the trial judge to render a verdict at the trial’s conclusion rather than asking that judge to direct verdict.

TOPICS: Labor Law § 240(1), Labor Law § 241(6),

Ladder, Sole proximate cause, Industrial Code § 23-1.7(f), Industrial Code § 23-6.2 WARD V. CORNING PAINTED POST AREA SCH. DIST. 192 A.D.3d 1563 March 19, 2021

The plaintiff asserted Labor Law claims due to his fall from an extension ladder while carrying a 10-foot metal pour stop. The plaintiff admitted that he knew he should only climb a ladder if he could maintain three points of contact with it, which he acknowledged he could not do while holding the pour stop. Additionally, there were alternate means available to perform the task, and the plaintiff’s foreman told him not to transport materials via ladder. The appellate division found that the plaintiff’s motion for summary judgment on Labor Law § 240(1) was properly denied because there were issues of fact as to whether his conduct was the sole proximate cause, i.e. whether he knew or should have known not to carry the pour stop up the ladder based upon his training, prior practice, and common sense given the available, appropriate, and safe alternate means to perform the task. The court additionally found that the plaintiff’s Labor Law § 241(6) cause of action based upon alleged violations of Industrial Code §§ 23-1.7(f) and 23-6.2 was properly dismissed. Industrial Code § 23-1.7(f) addresses stairways, ramps and runways to access working levels above ground, which the court found was not violated because a non-defective ladder had been provided and the work had not yet progressed to the point where a temporary stair tower was appropriate. Industrial Code § 23-6.2 addresses hoisting devices, and the court found this section was inapplicable because the plaintiff was not hoisting at the time of the incident.

PRACTICE NOTE: Evidence supporting a finding

that the plaintiff’s conduct is the sole proximate cause of the injury includes the availability of safe and appropriate alternate means to perform the task, disobedience of a supervisor’s direction, and the plaintiff’s knowing, improper use of a ladder. Although a plaintiff’s improper use of a ladder is ordinarily viewed as merely contributory fault and, therefore, insufficient to defeat a Labor Law § 240(1) claim, it appears that it can be included among other factors to support a finding that the totality of the plaintiff’s conduct was the incident’s sole proximate cause.

FOURTH FIRST DEPARTMENT

TOPICS: Labor Law § 241(6), Industrial Code

§ 23-2.1(a)[1]

SLOWE V. LECESSE CONSTR. SERVS. 192 AD3d 1645 March 29, 2021

The plaintiff was injured by a component of an unbuilt mailbox structure that fell on him at a construction site. The appellate division reinstated the Labor Law § 241(6) claim against the defendant, rejecting the defendant’s contention that Industrial Code §23-2.1(a)[1] only applies to thoroughfares. The court found that § 23-2.1(a)[1] creates three distinct obligations, only one of which applies to thoroughfares. The code section requires that (1) building materials be stored in a safe and orderly manner, (2) material piles be stable under all conditions, and (3) material piles shall be located so that they do not obstruct any passageway, walkway, stairway, or other thoroughfare. The court found that the mailbox component constituted “building material,” and that there was a triable issue of fact as to the safety and orderliness of the manner in which it was stored.

PRACTICE NOTE: The scope of Industrial Code

§ 23-2.1(a)[1] is not limited to thoroughfares.

It creates three independent duties, requiring that materials be: stored safely; in a stable manner; and in a location where they don’t obstruct thoroughfares.

her opposition to the dismissal of her Labor Law § 200 claim against the subcontractor. On the question of whether the concrete subcontractor created the condition, the court cited the plaintiff’s and the subcontractor’s conflicting expert affidavits as the basis for its finding of a triable issue of fact. Also, the court rejected the prime contractor’s argument that it was not liable on the negligence and Labor Law § 200 claims because it did not supervise or control the plaintiff’s work. The court found this rationale insufficient where the accident was caused by a hazardous condition on the premises. The prime contractor had the burden of establishing that it lacked control over the subject area or that it lacked actual or constructive notice of the condition, and the court found questions of fact on these issues.

PRACTICE NOTE: Labor Law § 200 and negligence

liability can be based upon: a defendant’s authority to control the plaintiff’s means and methods; its creation of the hazardous condition; or its actual or constructive notice of a hazardous condition at a site controlled by it.

Contradictory expert reports support a finding of a triable issue of fact. The appellate division will not reinstate a meritorious claim where an appellant abandons the claim on appeal.

TOPICS: Appeal, Labor Law § 241(6), Industrial

Code § 23-1.7(d)

BAUM V. JAVEN CONSTR. CO. TOPICS: Common law negligence, Labor Law

§ 200, Abandonment of opposition to dismissal LACEY V. LANCASTER DEV. 193 A.D.3d 1398 April 30, 2021

The plaintiff asserted common law negligence and Labor Law § 200 claims against a concrete subcontractor and a prime contractor because she slipped and fell on concrete slurry at a construction site. The plaintiff appealed the dismissal of her claims against the concrete subcontractor but she abandoned her opposition to dismissal of the Labor Law § 200 claim against it, evidently conceding that the concrete subcontractor lacked authority to supervise and control the plaintiff’s work. However, the appellate division observed that Labor Law § 200 negligence liability can also be based upon a defendant’s creation of the condition that caused the injury.

The court found a question of fact as to the concrete subcontractor’s creation of the condition but reinstated only the plaintiff’s negligence claim against it because the plaintiff abandoned

2021 NY Slip Op 03678 June 11, 2021

The plaintiff brought common law negligence and Labor Law § 241(6) claims for injuries he sustained on a snow- and ice-covered path in a parking lot while he carried elevator rails for a construction project. On appeal from an amended judgment after trial, the court reviewed the non-final orders resolving the parties’ summary judgment motions that found liability on the plaintiff’s Labor Law § 241(6) claim based upon Industrial Code § 23-1.7(d), which applies to snow and ice on passageways, walkways, or floors, but not open areas.

The court observed that a “passageway” has been interpreted to mean “a defined walkway or pathway used to traverse between discrete areas as opposed to an open area.” Although a parking lot is not considered a “passageway” when it’s primarily functioning as a parking lot at the time of the accident, the court found that the accident site was a passageway because it was the only way for the plaintiff to move the elevator rails from the staging area to the installa-

tion site. However, the court also found that the plaintiff should not have been granted partial summary judgment on liability because there were triable issues of fact as to whether the defendant’s salting of the pathway several hours before the accident was sufficient to discharge its duty to keep the area free of snow and ice.

Moreover, even where Labor Law § 241(6) liability is established, a defendant is not precluded from presenting evidence at trial of the plaintiff’s contributory fault.

PRACTICE NOTE: An appeal from a judgment

brings up for review the non-final order deciding the parties’ summary judgment motions.

For purposes of Industrial Code § 23-1.7(d), an otherwise open area will be considered a passageway if it is the worker’s only means of going from one worksite area to another. A defendant’s snow removal efforts present a question of fact as to whether it has discharged its duty under Industrial Code § 23-1.7(d) to clear snow and ice from floors, passageways, and walkways. Even where Labor Law § 241(6) liability is established, a defendant is not precluded from presenting evidence at trial of a plaintiff’s contributory fault.

TOPICS: Labor Law § 240(1), Labor Law § 241(6),

Homeowner exemption RAMSDEN V. GEARY NY Slip Op 03779 June 11, 2021

The plaintiff fell from a residential roof of the premises he occupied when he slipped on an unsecured metal roofing panel while performing the roof’s replacement. He brought Labor Law claims against the defendant property owner. The defendant had purchased the property years earlier for occupancy by his daughter and her soon-to-be husband, the plaintiff. The defendant’s daughter and the plaintiff were to make monthly payments to the defendant consisting of the property’s mortgage, insurance, and taxes; the property was to be turned over to his daughter and the plaintiff when the mortgage was paid off. The defendant was notified by the homeowner’s insurer that a new roof was needed or the insurance would be cancelled.

The defendant notified the plaintiff of the need for a new roof, and the plaintiff undertook to perform the roof replacement with the aid of his brothers. The court found that, although the defendant did not reside in the premises, he was entitled to dismissal of the Labor Law §§ 240 and 241 claims due to the statutes’ homeowner exFALL 2021 | 25

FIRST DEPARTMENT FOURTH DEPARTMENT

emption from liability. Although the exemption does not apply to property owners who use the dwelling for purely commercial purposes, the court found that the defendant derived no commercial benefit and did not use the property for a commercial purpose. The court also observed that the plaintiff purchased the materials, was the beneficiary of the work, and controlled when and how the work was to be performed. In addition, the court found that the plaintiff was not entitled to the protections of Labor Law §§ 240(1) and 241(6) because he was a volunteer. Specifically, the defendant neither hired nor paid the plaintiff to perform the work, the plaintiff was not fulfilling an obligation to the defendant, and the defendant did not direct or supervise the work.

Any obligation to perform the work that the plaintiff perceived was due to the homeowner’s insurer’s threatened cancellation of insurance if a new roof were not installed, which the plaintiff believed would cause the defendant to sell the property, thereby causing the plaintiff to lose his investment.

PRACTICE NOTE: The Labor Law §§ 240 and 241

homeowner exemption from liability applies to a property owner who does not occupy the premises where the owner neither uses it for commercial purposes nor derives a commercial benefit. The plaintiff will be deemed a volunteer who is not entitled to the protection of Labor Law §§ 240 and 241 where the property owner did not hire or otherwise obligate the plaintiff to perform the work, and does not direct or control the work.

TOPICS: Labor Law § 240(1), Labor Law § 241(6),

Industrial Code § 23-1.8(c)[4], Appellate review KAMMERER V. MERCADO 2021 NY Slip Op 03935 June 17, 2021

The plaintiff worked for a contractor who was attempting to fix a clogged pipe. The plaintiff was holding the pipe while standing on a makeshift scaffold on the first floor; when her supervisor cut the second floor pipe, liquid in the pipe fell onto her causing burns to various parts of her body. On appeal, the plaintiff abandoned her Labor Law § 200 and negligence claims. The court found that Labor Law § 240(1) did not apply to the hazard at issue because the substance that fell from the pipe was not material being hoisted or a load that required securing. The court also found that Labor Law § 241(6) was properly dismissed because there was no violation of Industrial Code § 23-1.8(c)[4] 26 | Labor Law Update

since she was not required to “use or handle” the substance in the pipe within the meaning of that regulation. (That regulation addresses personal protective equipment for workers required to use or handle corrosive substances or chemicals.) On appeal, the plaintiff referred to other allegedly violated regulations that were identified in her bill of particulars, but the court found that those contentions were not brought up for appellate review because they were not addressed in the underlying motions.

PRACTICE NOTE: For the plaintiff to be entitled to

the protections of Labor Law § 240(1), the injury must be caused by a hazard against which the statute was intended to protect, i.e. material being hoisted or a load that required securing.

The personal protective apparel requirement in Industrial Code § 23-1.8(c)[4] does not apply to a plaintiff whose work did not require the use or handling of corrosive substances or chemicals.

The appellate division may find an issue is not preserved for appellate review where it was not raised in the underlying motions.

Index A

F

N

Abandonment of opposition to dismissal 25

Falling object 4 9 17 18 19

No hoisting equipment 14

Additional insured status 19

Falling worker 9

Notice 9 17

Adequate safety devices 13

Federal preemption 6 Fire escape ladder not a covered structure under the Industrial Code 8 Foreseeability of collapse of permanent structure 8

Affidavit contradicting deposition testimony 24 Agent 19 Anti-subrogation rule 6 10 Appeal 25 Appellate review 26 Applicability of scaffold statute to window washer 7

O Owners 16 19

P

G

Parties subject to Labor Law liability 23 Passageway 11 12

General Obligations Law 13

Appropriate safeguards 15

Grave injury 4

Authority or control over work 4 5 12 17 19

Gravity 5

Permanently affixed ladder 20 Physically significant elevation differential 6 Planks 11

Gravity-related hazard 12

B Breach of contract 9

Pre-suit disclosure 23 Prima facie showing 11

H

Burden of proof 4 16 17 18

Proof of violation of Industrial Code required 13

Harness 14

Proof on CPLR 3211 dismissal motion 23

Hoisting 12 18

C

Protected activities 17

Homeowner exemption 16 23 25 Carrying objects 18 Civil and criminal contempt 23

Proximate cause 6 19

I

“Cleaning” under Labor Law § 240(1) 23 Collateral estoppel of Workers’ Compensation Board decision 23

Indemnification 5 6 13 17 22

Common law indemnification 9 12 13

Industrial Code § 23-1.7(f) 24

Industrial Code 11 21

Industrial Code § 23-6.2 24 Industrial Code provisions re: demolition work 7

Constructive notice 12

Routine maintenance 20

S Safety devices 5 8 9 12 Scaffold 6 9 10 11 13 14 18 Secured object 11

Industrial Code violations 9 12 15 17 18

Securing 18

Inspection 19

Sidewalk bridge 14 Sole proximate cause 4 5 7 8 10 12 13 14 15 16 24

Issues of fact 4 5 13

Covered person 16

J

Statutory agent 5

Judicial notice 14

Subcontractor 19 Summary judgment 9 14

L Labor Law 18 19

Defective equipment 18

Labor Law § 200 4 5 9 10 11 12 13 14 16 1 7 20 21 22 24 25

Demolition work 4 Directed verdict 24

Supervision and control 5 9 12 13 19 23

T Trench 8

Labor Law § 240 16 18

Door 4

Labor Law § 240(1) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 22 23 24 25 26

E

Labor Law § 241(6) 4 5 6 7 8 9 10 11 12 1 3 14 15 16 17 18 20 21 23 24 25 26

Elevation-related hazard 8 17 Elevation-related risk 8 12 17

Ladder 5 6 7 8 9 10 11 12 14 19 22 24

Enumerated activity 7 16 20 Exercise of supervisory control over worksite 13 Express language 19

Recalcitrant worker 5 7 10 22

Industrial Code regulations 17 18

Contract documents 19 Contractual indemnification 9 10 12 13 19 24

Defect 19

Ramp requirements 6

Industrial Code § 23-2.1(a)[1] 25

Comparative negligence 12 Construction site perils v elevation-related hazards 7

D

Railings 18

Industrial Code § 23-1.8(c)[4] 26

Comparative fault 22

Covered worker 8

R

Industrial Code § 23-1.7(d) 24 25

Common law negligence 11 14 16 22 24 25

Covered work 4 8 16 17 19

Protective orders 23

U Unsafe condition 4 20

V Vicarious liability 9

Lighting 11

W

M Machinery 18

Work area 12

Means and methods 4 10 17 Mechanism of injury 6

Worksite 8

Workers’ Compensation Law § 11 4 22

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