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SPRING 2019

Labor Law Update

IN THIS ISSUE: ▶▶ The importance of an early expert investigation ▶▶ The first application of Rodriguez v. City of New York ▶▶ The imperative of obtaining clear testimony ▶▶ Plaintiff summary-judgment motions in 241(6) claims Attorney Advertising


Goldberg Segalla Labor Law Update Spring 2019 Goldberg Segalla’s Labor Law Update keeps clients informed about significant changes and cases involving New York’s Labor Law. Cases are organized by court and date. If you have any questions about cases reported in this Labor Law Update or questions concerning Labor Law §§200, 240(1), and 241(6) in general, please contact Theodore W. Ucinski III.

In This Issue Court of Appeals  | 2 First Department  | 3 Second Department  | 8 Third Department  | 15 Fourth Department  | 16 Topics Index  | 20

EDITOR Theodore W. Ucinski III ASSISTANT EDITORS

CONTRIBUTORS

Jamie K. McAleavey DIRECT 516.281.9865 jmcaleavey@goldbergsegalla.com

Arlow M. Linton DIRECT 716.844.3428 alinton@goldbergsegalla.com

Jeffrey S. Matty DIRECT 646.292.8748 jmatty@goldbergsegalla.com

Derek M. Zisser DIRECT 516.281.9834 dzisser@goldbergsegalla.com Samantha Catone DIRECT 716.844.3488 scatone@goldbergsegalla.com

Amanda E. McKinlay DIRECT 646.292.8769 amckinlay@goldbergsegalla.com


EDITOR’S NOTE I am deeply humbled to have the opportunity to transition into the position of editor of Labor Law Update. It is indeed rare that one has the opportunity to walk in the steps of such an esteemed and knowledgeable colleague as this publication’s original editor, Tom Segalla. Tom was innovative in creating this comprehensive publication for our clients and the profession at-large. To this very edition, Tom remains committed to its publication and has been an amazing resource for all of us. With his vision, we move forward, hopeful that we will live up to his dedication to service and excellence. In Quizhpi v. South Queens Boys and Girls Club, Inc., 166 A.D.2d (2nd Dept 2018), we see the first extension of the holding from the New York Court of Appeals case Rodriguez v. City of New York, 31 N.Y.3d 312 (2018), to the Labor Law. In Quizhpi, the plaintiff was injured when he fell through the roof of a building during asbestos abatement and demolition. The defendants testified that, just before the accident, the plaintiff had attempted to remove asbestos in the area where he fell. The Appellate Division’s Second Judicial Department specifically noted the existence of issues of fact as to the plaintiff’s comparative negligence but nonetheless followed the dictates of the Rodriguez case and granted plaintiff summary judgment on his Labor Law Section 241(6) claim. Given that the court now has extended Rodriguez, we anticipate that the plaintiff’s bar shall vigorously pursue summary judgment on Labor Law Section 241(6) cases to secure a finding of liability. However, even if liability is assessed, it must be kept in mind that a determination of the plaintiff’s comparative negligence still will be made at trial. In this reporting period, the courts also took the opportunity to examine whether a plaintiff was involved in a protected activity. In Gerrish v. 56 Leonard LLC, 30 N.Y.3d 1125 (2018), the Court of Appeals upheld the First Department’s denial of summary judgment in favor of the defendants on the grounds that there was an issue of fact as to whether the plaintiff’s work being done at a temporary off-site facility may be considered work at a construction site under Labor Law sections 240(1) and 241(6). There, the plaintiff was involved in fabricating steel rebar at a temporary off-site facility in the Bronx for use at a construction site in Manhattan. By contrast, in Kusayev v. Sussex Apartments Associates, LLC, 163 A.D.3d 943 (2nd Dept 2018), the Second Department held that a plaintiff delivering building materials at an apartment complex was not engaged in construction work at a construction site because the building materials were not “being readied for immediate use” but instead were “being stockpiled for future use.” These cases highlight that “construction site” and “construction work” are not immutable terms. Practitioners are encouraged to fully investigate the facts and details of the actual work performed and the context under which and where it was performed to determine if a plaintiff’s activity warrants protection under the Labor Law.               Please note that Goldberg Segalla has a number of construction-related publications, blogs, and rapidresponse teams. For more information please refer to the back page of our update or contact me directly. As always, we hope you find this edition of Labor Law Update to be a helpful and practical resource. If you have any questions about the cases or topics discussed or any feedback on how we can make Labor Law Update more useful, please do not hesitate to contact me.

THEODORE W. UCINSKI III DIRECT 516.281.9860 tucinski@goldbergsegalla.com


COURT OF APPEALS

GERRISH V. 56 LEONARD LLC 30 N.Y.3d 1125 (February 20, 2018)

The plaintiff, employed by a concrete subcontractor, was injured when he tripped and fell on debris at a site where rebar was being prepared for trucking to a storage facility and then to the building site. The plaintiff brought Labor Law Section 241(6) claims against the owner of the building and the construction manager. On the defendant’s motion to dismiss the claims, the court found issues of fact as to whether this temporary off-site facility constituted a construction site under the statute. PRACTICE NOTE: Based on this case, in which the rebar was prepared off-site but then shipped to and used at the building site, the most important factor in determining whether an accident location is a construction site appears to be the nexus between the work going on at the off-site facility and the building project itself. TOPICS: Labor Law Section 241(6),

construction project

SOMEREVE V. PLAZA CONSTR. CORP. 31 N.Y.3d 936 (April 3, 2018)

The plaintiff, a mini-forklift operator, was injured when a load of bricks he was attempting to hoist caused the mini-forklift to pitch forward and eject him from the cab. The plaintiff moved for summary judgment on Labor Law Section 240(1) six months prior to the due date of his Note of Issue. In denying the motion, the court noted discovery was not closed and the outstanding discovery requested by the defendants could aid in establishing what happened. Where alternate versions of events and outstanding discovery are present, summary judgment should be denied.

PRACTICE NOTE:

TOPICS: Labor Law Section 240(1), burden of proof

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FIRST DEPARTMENT

MAKKIEH V. JUDLAU CONTRACTING 162 A.D.3d 468 (1st Dept) (June 7, 2018)

The plaintiff was injured when a nylon sling attaching a one- to two-ton steel plate to an excavator snapped, causing the plate to fall to the ground and sever a street sign, which in turn struck the plaintiff’s right forearm. The court held that the plaintiff was entitled to summary judgment under Labor Law Section 240(1), as the plate was held two or three feet above the ground, which is a sufficient height differential for the protection of the Scaffold Law. PRACTICE NOTE: A height differential of two feet or more is sufficient to support a claim for a “falling object” under Section 240(1). TOPICS: application of Labor Law, protected

activity, gravity-related risk

ASPORMONTE V. JUDLAU CONTRACTING 162 A.D.3d 484 (1st Dept) (June 12, 2018)

The plaintiff was injured when he fell down an open shaft after a guardrail that was improperly wedged against a wall gave way. The plaintiff was not entitled to summary judgment under Labor Law Section 240(1), in light of defendants’ expert affidavits from a neuro-radiologist and biomechanical engineer that the accident could not have occurred in the manner alleged by plaintiff. Even in an apparent case of liability under Section 240(1), expert evidence from a biomechanical engineer can be used to dispute plaintiff’s version of events.

PRACTICE NOTE:

TOPICS: causation, burden of proof, expert

retention

NOLAN V. PORT AUTHORITY OF NEW YORK AND NEW JERSEY 162 A.D.3d 488 (1st Dept) (June 12, 2018)

The plaintiff was injured when a makeshift ladder he was descending slid out from under him. The court held that the plaintiff was entitled to summary judgment under Labor Law Section 240(1), despite the affidavit of a coworker who observed the plaintiff miss a step on the ladder before falling. The court reasoned the affidavit did not refute the plaintiff’s allegation that the ladder slipped, thus precluding a sole proximate cause defense.

PRACTICE NOTE: A sole proximate cause defense to the plaintiff’s Section 240(1) claims will not succeed when there is more than one possible cause of an accident, such as the ladder’s slipping or the plaintiff’s missing a step on the ladder. TOPICS: burden of proof, sole proximate cause,

prima facie burden

CONCEPCION V. 333 SEVENTH LLC 162 A.D.3d 493 (1st Dept) (June 14, 2018)

The plaintiff was injured when he fell from a sixfoot A-frame ladder while working on a sprinkler system. The court held that the plaintiff was entitled to summary judgment under Labor Law Section 240(1) and denied the defendant’s motion for summary judgment because the work constituted an alteration under Section 240(1), as it involved reconfiguring the sprinkler system, which included cutting, removing, and relocating pipes and valves. A plaintiff must be performing an enumerated activity under Section 240(1), such as an alteration, for the statute to apply. PRACTICE NOTE:

TOPICS: routine maintenance, protected

activity, alteration or repair

DOUGLAS V. SHERWOOD 48 ASSOCS. 162 A.D.3d 498 (1st Dept) (June 14, 2018)

The plaintiff was injured when, while she was pushing a wheeled scaffold, her foot fell into a 12-foot-deep trench and the wheel of the mobile scaffold struck her foot. Summary judgment was not appropriate under Labor Law Section 200 or Section 241(6), as questions of fact remained surrounding the defendants’ knowledge of the uncovered trench and whether there was a violation of 12 NYCRR 23-5.18(h), which prohibits the movement of scaffolds on non-level surfaces or surfaces with openings. The court cited photographs and testimony, which could be interpreted as showing violations of 12 NYCRR 23-5.18(h) and which created questions of fact regarding notice to defendants of the trench.

PRACTICE NOTE:

MUQATTASH V. CHOICE ONE PHARMACY CORP. 162 A.D.3d 499 (1st Dept) (June 14, 2018)

The plaintiff was injured by a live wire in a ceiling. The court held that the defendant building-owner was not entitled to summary judgment on the plaintiff’s Labor Law Section 200 and common-law negligence claims, as there were questions of fact as to whether it created the hazardous condition, since evidence showed the defendant had installed the drop-ceiling and electrical system when purchasing the building and no one had performed any work since. On summary judgment, all issues of fact must be eliminated, even if the moving party was not involved in the work ongoing at the time of the accident.

PRACTICE NOTE:

TOPICS: burden of proof, common-law

negligence

NAUPARI V. MURRAY 163 A.D.3d 401 (1st Dept) (July 3, 2018)

The plaintiff was injured when he fell off a ladder when the ladder and the rosin paper underneath it shifted. The court dismissed the plaintiff’s Labor Law Section 240(1) and Section 241(6) claims against the architect and property manager because neither had the authority to supervise or control the plaintiff’s work. The court also dismissed the plaintiff’s common-law negligence claims as to all defendants because the accident arose from the “means and methods” of the work, which was solely determined by the plaintiff’s employer. PRACTICE NOTE: Liability cannot be found under Section 240(1) or Section 241(6) against a party that is not an owner or general contractor unless it had supervisory control over the work being performed, which would render it an “agent of the owner” under the Labor Law. TOPICS: authority or control over work, manner

and methods

TOPICS: Industrial Code violations, application

of Labor Law

SPRING 2019 

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FIRST DEPARTMENT

HONG-BAO REN V. GIOIA ST. MARKS 163 A.D.3d 494 (1st Dept) (July 26, 2018)

The plaintiff was injured when he fell from the top of a ventilator while renovating a kitchen. He was provided with an eight-foot A-frame ladder but could not reach the area where he was working, so he instead balanced on the ventilator. The court held that the plaintiff was entitled to summary judgment on his Labor Law Section 240(1) claim because he was not provided with a proper safety device. PRACTICE NOTE: The failure to provide a proper safety device constitutes a prima facie basis for granting the plaintiff summary judgment. TOPICS: defective or inadequate safety equipment,

burden of proof, prima facie burden

FLORES V. METROPOLITAN TRANSPORTATION AUTHORITY 164 A.D.3d 418 (1st Dept) (August 9, 2018)

The plaintiff was injured when he fell from a flatbed truck when a load of steel beams being hoisted without tag lines swung toward him. The court held that the plaintiff was entitled to summary judgment on his Labor Law Section 240(1) claim because he was not provided with necessary safety devices and on his Section 241(6) claims on the basis that the failure to use tag lines constituted a violation of 12 NYCRR 23-8.2(c)(3). The failure to provide a required safety device does not only create a prima facie entitlement to summary judgment under Section 240(1) but may also create a prima facie entitlement to summary judgment under Section 241(6) if the device is required by a section of the Industrial Code.

PRACTICE NOTE:

TOPICS: Industrial Code regulations and violations, prima facie burden, proper safety device

CUEVAS V. BARUTI CONSTRUCTION CORP. 164 A.D.3d 447 (1st Dept) (August 23, 2018)

The plaintiff was injured when his hand was crushed by a roof-cutting machine he was pushing over the edge of a roof onto the ground, about 10 feet below. The court held that the plaintiff was entitled to summary judgment on Labor Law Section 240, despite three affidavits from the same witness that the defendant argued had provided a version of events in which the 4 | Labor Law Update

accident was not caused by a falling object. The court found the affidavits clarified one another and when read together provided a detailed and consistent version of events.

MANANGHAYA V. BRONX-LEBANON HOSPITAL CENTER

NOTE: Specificity in witness statements, accident reports, and affidavits is crucial, as a party can be granted summary judgment under Section 240(1) based on ambiguous and explained evidence but not based on contradictory evidence.

The plaintiff was working as a flagman when a 30,000-pound temporary air-conditioning chiller crushed him to death as it was being de-installed and removed from the premises for the winter. The chiller, which was mounted on a trailer outside the hospital, was part of an emergency backup air-conditioning system used by the defendant in the summer and was connected to the building’s airconditioning system and piping. The court held that the removal of a temporary, trailermounted chiller, was an “alteration” under Labor Law Section 240(1), since it constituted a “significant change” to the hospital’s airconditioning system.

PRACTICE

TOPICS: burden of proof, gravity-related risk

BAUTISTA V. ARCHDIOCESE OF NEW YORK 164 A.D.3d 450 (1st Dept) (August 30, 2018)

The plaintiff fell off a scaffold while repairing a detached garage at a church rectory. The court held that the defendant was entitled to summary judgment based on the one- to twofamily homeowner exception to the Labor Law, as the building that the plaintiff was working on was a dwelling and private garage despite being part of a larger property.

165 A.D.3d 117 (1st Dept) (September 13, 2018)

PRACTICE NOTE: The court’s decision provides a list of factors that it analyzed and found convincing in determining whether the work at issue was an “alteration” within the meaning of Section 240(1). TOPICS: protected activity, burden of proof,

PRACTICE NOTE:

alteration or repair

TOPICS: one- or two-family dwelling exemption,

164 A.D.3d 1176 (1st Dept) (September 27, 2018)

The court examined the certificate of occupancy and witness testimony regarding the use of the property in analyzing the applicability of the homeowner exemption. application of Labor Law, burden of proof

GORDON V. CITY OF NEW YORK 164 A.D.3d 1110 (1st Dept) (September 6, 2018)

The plaintiff was injured when he fell from a ladder while re-positioning a stadium light inside a tunnel. Evidence showed that he used a ladder for this task because no manlifts were available at the time and that the floor was muddy and strewn with debris. The court found that the plaintiff was entitled to summary judgment on his Labor Law Section 240(1) claim, as the ladder failed to afford him proper protection for the elevation-related risk of re-positioning the stadium light. PRACTICE NOTE: The failure to provide adequate

equipment can serve as the prima facie basis for summary judgment.

TOPIC: proper safety device, burden of proof

RROKU V. WEST RAC CONTRACTING CORP.

The plaintiff was injured when the six-foot scaffold he was descending wobbled and he fell. The plaintiff moved for summary judgment and defendants opposed the motion, arguing that there were issues of fact precluding summary judgment since the plaintiff was the only witness to his accident. The court held that the plaintiff was entitled to summary judgment under Labor Law Section 240(1) based on the defendants’ failure to provide adequate safety devices to prevent him from falling when the scaffold moved and the lack of any witnesses did not controvert the plaintiff’s account of the accident or call his credibility into question. A plaintiff can recover under Section 240(1) even if he has no corroborating evidence for his or her accident absent evidence in the record to dispute plaintiff’s testimony.

PRACTICE NOTE:

TOPICS: proper safety devices, burden of proof


FIRST DEPARTMENT

MOURA V, CITY OF NEW YORK 165 A.D.3d 434 (1st Dept) (October 4, 2018)

The worker was injured when he stepped into a hole while erecting, moving, and adjusting scaffolding to facilitate an inspection of the Manhattan Bridge. The defendants’ moved for summary judgment, seeking a dismissal of Labor Law Section 241(6) and Section 200 claims. The court determined that the work constituted construction and alteration within the contemplation of Section 241(6). The court further found that the plaintiff’s work was a covered activity because it involved the construction and alteration of the rolling pipe scaffold. The court further found that Industrial Code 23-1.30 could support a Section 241(6) violation and that an issue of fact existed as to whether the light at the accident location was adequate. The court dismissed the 23-1.7(b)(1) (i) violation, as the area where the plaintiff was injured did not constitute a hazardous opening with the meaning of that provision. Finally, the court denied dismissal of the Section 200 claims on the grounds that issues of fact existed as to whether a dangerous condition existed on the premises. PRACTICE NOTE: The construction and alteration

of a structure need not be a permanent structure, and can include a rolling pipe scaffold under Labor Law Section 241(6).

TOPICS: Industrial Code regulations, common-

law negligence, application of Section 241(6), alteration or repair

WHITE V. STEINWAY, LLC 165 A.D.3d 449 (1st Dept) (October 9, 2018)

The plaintiff, while working as a sign installer, was injured when he fell from a ladder. The signage work was excluded from the general contractor’s scope of work and was performed by a contractor hired by the owner. The general contractor’s motion for summary judgment was denied due to questions of fact as to whether the obligations of the general contractor extended to the plaintiff’s work, and, thus, whether it had authority to control the plaintiff’s work. The court granted the plaintiff’s motion for summary judgment on his Labor Law Section 240(1) claim, as the plaintiff established that the accident was caused by the failure to provide an adequate safety device, and the defendants failed to raise an issue of fact as to whether the plaintiff

was the sole proximate cause of his accident. The defendants also did not establish that the plaintiff was a recalcitrant worker, as there was no evidence that the plaintiff was specifically instructed to use a particular safety device and refused. Finally, the court held that the signageand awning-contractor was a statutory agent of the owner as it was delegated the supervision and control over the specific work the plaintiff was performing at the time of his accident and, thus, was a proper Section 240(1) defendant.

proximately caused by the failure of safety devices that were supposed to afford proper protection against the elevation-related risks that the plaintiff faced during the installation of the column being hoisted into place. The court found that the tack welds used to secure the metal shim plate to the column were “safety devices” for the purposes of Labor Law Section 240(1) because they were intended to be a temporary measure to keep the shim plate attached to the column during installation.

Evidence that the plaintiff set up the ladder and determined how to use the ladder does not establish that a plaintiff was the sole proximate cause of his accident where there is evidence that the ladder was unsecured and no other safety devices were provided to the plaintiff.

PRACTICE

PRACTICE NOTE:

NOTE: The “safety devices” contemplated by Section 240(1) need not be protective devices for the end user directly but can be a temporary device used in the installation process to assist in the installation.

TOPICS: gravity-related risk, safety devices

TOPICS: fall from ladder, sole proximate cause,

recalcitrant worker, authority or control over the work

VILLANUEVA V. 114 FIFTH AVENUE ASSOCIATES, LLC 162 A.D.3d 404 (1st Dept) (November 5, 2018)

The plaintiff was injured when a 500-pound steel beam fell on his shoulder as he and his co-workers attempted to load it into a freight elevator. The court held that the defendant prime contractor was entitled to dismissal of the plaintiff’s Labor Law Section 200 and common-law negligence claims on the grounds that the claim did not arise from a dangerous or defective condition but rather from the means and methods of the work. PRACTICE NOTE: Where the injury was caused by the means and methods of the work, including the equipment used, rather than a hazardous condition at the jobsite, the owner or general contractor can be found liable only if it exercised supervisory control over the work. TOPICS: manner and methods, authority or

control over work

KEERDOJA V. LEGACY YARDS TENANT, LLC 166 A.D.3d 418 (1st Dept) (November 8, 2018)

The plaintiff was injured when a metal shim plate affixed to a steel column that was being installed detached and hit him in the head. The court granted summary judgment to the plaintiff, finding that the accident was

CAMINITI V. EXTELL WEST 57TH STREET LLC 166 A.D.3d 440 (1st Dept) (November 13, 2018)

The plaintiff was injured in a fall from a ladder, and a Labor Law Section 240(1) claim followed. Although the court found that the plaintiff made a prima facie showing of entitlement to judgment as a matter of law by presenting evidence that the plaintiff was working on a ladder when it started to move, tipped, and struck him in the chest, the defendants raised triable issues of fact as to whether the defendant’s injuries were caused by an accident on the ladder. The court dismissed the Labor Law Section 241(6) claims insofar as predicated on generalized Industrial Code sections, as the plaintiff failed to specify any particular subsection and subdivision of these provisions. PRACTICE NOTE: Alleging a particular chapter of the

Industrial Code section is insufficient to support a Labor Law Section 241(6) claim; a specific subsection and subdivision must be pled.

TOPICS: fall from a ladder, Industrial Code

regulations and proximate cause

GELVEZ V. TOWER 111 LLC 166 A.D.3d 547 (1st Dept) (November 27, 2018)

The plaintiff was injured when a cinder-block wall he was demolishing collapsed onto the scaffold on which he was working, knocking the scaffold over. The court found triable issues of fact as to whether plaintiff was instructed to demolish the wall from the top to the bottom and whether any SPRING 2019 

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FIRST DEPARTMENT

decision by plaintiff to work from the bottom up in contravention of an explicit instruction and his training or common knowledge was the sole proximate cause of the accident. PRACTICE NOTE: Full details concerning a plaintiff’s

training and instructions with regard to the means and methods of performing work is necessary to attempt a motion for summary judgment based on the sole proximate cause defense. TOPICS: elevation-related, sole proximate

cause, recalcitrant worker

SAGINOR V. FRIARS 50TH STREET GARAGE 166 A.D.3d 529 (1st Dept) (November 27, 2018)

An electrician was injured while working at a construction site, where he tripped and fell over partially secured metal track that carpenters had installed as part of the framework for Sheetrock interior walls. The metal track was not secured to the floor and protruded 18 inches into the passageway/ work area. The plaintiff claimed he tripped and fell because of inadequate lighting and the protrusion. The court dismissed the plaintiff’s Labor Law Section 241(6) claim inasmuch as it was premised at 23-1.7(e)(1) and (2) as the allegedly hazardous condition was integral to the work the plaintiff was to perform. PRACTICE NOTE: The court focused on the issue of whether the workers completed their task and left the condition unfinished, incomplete, and loose, or if they were in the process of completing their task, and the construction thus was ongoing. While leaving the protrusion unfinished and incomplete or loose would have been a violation, this condition during the time the ongoing construction was an integral part of their work and not a violation. TOPICS: Industrial Code regulations, application

of Labor Law

UVIDIA V. THE CARDINAL SPELLMAN HIGH SCHOOL 86 N.Y.S.3d 881 (1st Dept) (December 4, 2018)

The plaintiff sustained an injury as a result of the collapse of a plywood structure that he and a co-worker were erecting on a roof in preparation for asbestos abatement inside the structure. The plaintiff moved for summary judgment as to his Labor Law Section 240(1) claim and the court found that the plaintiff submitted 6 | Labor Law Update

documentary and oral proof that the force of gravity combined with a lack of safety devices caused the roofing accident, thereby violating Section 240(1). Although defendants did submit some evidence that a gust of wind may have been a cause of the accident, the court found that Section 240(1) required the provision of devices to protect against the foreseeable risk that windy weather on the roof of the building could cause the structure to shift or collapse while it was under construction. PRACTICE NOTE: Although there could be other causes to an accident in addition to a violation of Labor Law Section 240(1), the provision requires that the workers be provided with devices to protect against the foreseeable risks such as windy weather during construction. TOPICS: gravity-related risk, sole proximate cause

BURGUND V. CUSHMAN & WAKEFIELD, INC. 167 A.D.3d 441 (1st Dept) (December 6, 2018)

The plaintiff sustained injury while working at a property managed by defendant. The court held that the defendant property manager was entitled to dismissal of the plaintiff’s Labor Law Section 240(1) claim, as it did not oversee, supervise or control the manner and methods of the plaintiff’s work, and the plaintiff admitted that he supervised his own work without any supervision from the defendant property manager. PRACTICE NOTE: For there to be liability as an “agent of the owner” under Section 240(1), there must be evidence that the defendant exercised supervisory control over the work. TOPICS: manner and methods, authority or

control over work, burden of proof

GOYA V. EE LONGWOOD HOUSING DEVELOPMENT FUND E COMPANY INC. 87 N.Y.S.3d 467 (1st Dept) (December 4, 2018)

The plaintiff was injured while climbing a fire-escape ladder to gain access to different levels of the building under construction. In denying the defendants’ motion for summary judgment, the court held that the ladder was a “safety device” within the meaning of Labor Law Section 240(1), as it was specifically used to provide access to different elevation levels for the workers and their materials. The court further found there was no evidence to support the conclusion that the plaintiff was the sole proximate cause of his injuries because there was no other readily available ladder or safety device that the plaintiff unreasonably chose not to use. However, summary judgment still was denied the plaintiff on the grounds that there were issues of fact as to whether the plaintiff was permitted to work at the accident site on the day in question. PRACTICE NOTE: The court appears to be broadening the definition of safety device, as the fire escape ladder was a part of the structure and not provided to the worker as part of the construction. TOPICS: fall from a ladder, sole proximate cause

SLAWSKY V. TURNER CONSTRUCTION COMPANY 167 A.D.3d 488 (1st Dept) (December 13, 2018)

The plaintiff was injured when a glass partition struck him. The court held that the plaintiff was entitled to the protections of Labor Law Section 240(1), as this was an “elevationrelated hazard,” even if the distance was short, because the weight of the glass, which was 300 to 400 pounds, increased the hazard, and the lifting device was insufficient for such a task. Section 240(1) claims based on “falling objects” can succeed even if the height differential is minimal depending on the weight of the object and the adequacy of the equipment used.

PRACTICE NOTE:

TOPICS: gravity-related risk, defective or

inadequate equipment, falling objects

QUIGLEY V. PORT AUTHORITY OF NEW YORK AND NEW JERSEY 2018 WL 6537004 (1st Dept) (December 13, 2018)

The plaintiff was injured when he slipped and fell on snow-covered pipes outside a work-site shack maintained by his employer. The court held that the defendant was not entitled to dismissal of the plaintiff’s Labor Law Section 241(6) claim predicated on 12 NYCRR 23-1.7(d), requiring safe footing for workers, as there was an issue of fact as to whether the accident


FIRST DEPARTMENT

occurred in a walkway. The defendant, however, was entitled to dismissal of the plaintiff’s claims predicated on 12 NYCRR 23-1.7(e)(1), which regulates tripping hazards in floors, walkways, scaffolds, platforms, and elevated working surfaces as a “passageway” applies only to interior or internal passageways. Lastly, the defendant was not entitled to dismissal of the plaintiff’s claims predicated on 12 NYCRR 121.7(e)(2), which prohibits “accumulations of dirt and debris” in “working areas,” as there were issues of fact as to whether the accident site was a “working area.” This case demonstrates the specificity and limited use of Industrial Code regulations in support of Section 241(6) claims.

plaintiff premised the claims on 12 NYCRR 231.7(e)(2), an Industrial Code regulation prohibiting scattered materials or debris in walkways, and the steel floor plate was an integral part of the construction, not scattered debris. PRACTICE NOTE: This case shows that Industrial

Code regulations are narrowly construed and thorough research on each regulation is required when analyzing a claim.

TOPICS: Industrial Code regulations and

violations

PRACTICE NOTE:

TOPICS: Industrial Code regulations and violations

NAVA-JUAREZ V. MOSHOLU FIEDLSTON REALTY 167 A.D.3d 511 (1st Dept) (December 20, 2018)

The plaintiff fell from a ladder while painting when the ladder shifted. The defendant presented a C-3 workers’ compensation injury report in English, in which it noted that the Spanish-speaking plaintiff said he fell while walking down stairs. The plaintiff presented the eyewitness testimony of a coworker who witnessed the accident and claimed that the C-3 contained a mistranslated statement as the Spanish word “escalera” could mean either “stairs” or “ladder.” The court held that plaintiff met his prima facie burden under Labor Law Section 240(1) and that the defendant had the burden of proof to demonstrate that the hearsay statement in the C-3 fit within a hearsay exception. This case demonstrates the importance of accurate accident/incident reports and shows how competing evidence is resolved by a court.

PRACTICE NOTE:

TOPICS: prima facie burden, burden of proof

CANTY V. 133 EAST 79TH STREET, LLC 167 A.D.3d 548 (1st Dept) (December 27, 2018)

The plaintiff was injured when the lid of a gang box (a large toolbox) fell and closed on his hand, allegedly due to overcrowding in the work area and the placement of two gang boxes close together. The court held that the defendant property owner was entitled to dismissal of the plaintiff’s Labor Law Section 200 and common-law negligence claims, as the accident arose from the means and methods of work, and the property owner did not have supervisory control over the placement of gang boxes. The court further held that the property owner was entitled to dismissal of the plaintiff’s Section 241(6) claim premised on 12 NYCRR 23-1.5(c)(3), since this regulation, requiring safety devices and equipment to be maintained, did not apply to the gang box. This case demonstrates that a property owner often can escape liability under Section 200 and common-law negligence by demonstrating it did not have supervisory control over the means and methods of the work. Such a ruling generally paves the way for indemnification claims with contracted parties.

PRACTICE NOTE:

TOPICS: Industrial Code regulations and

violations, common-law negligence, manner and methods, authority or control over work

SAVLAS V. CITY OF NEW YORK 167 A.D.3d 546 (1st Dept) (December 27, 2018)

The plaintiff was injured when he tripped on an overlapping steel floor-plate covering at a water-treatment plant. The court held that the defendants were entitled to dismissal of the plaintiff’s Labor Law Section 241(6) because the SPRING 2019 

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SECOND DEPARTMENT

LORDE V. MARGARET TIETZ NURSING AND REHABILITATION CENTER

TOPICS: manner and methods, elevationrelated hazard, authority or control over work

162 A.D.3d 878 (2nd Dept) (June 20, 2018)

The plaintiff was injured when he fell from an inverted bucket he was using to install Sheetrock on a ceiling. The plaintiff alleged violations of Labor Law Section 200, Section 240(1), and Section 241(6), and moved for summary judgment on the Section 240(1) claim. The court denied the plaintiff’s motion on the grounds that there were issues of fact as to whether there were ladders available at the job site at the time of the accident and whether the plaintiff’s decision to stand on the bucket was the sole proximate cause of his injury. The plaintiff testified that there were ladders and Baker scaffolds on the job site. Also, the plaintiff previously had requested more ladders, and additional ladders were provided. PRACTICE NOTE: A defendant cannot be found liable under Labor Law Section 240(1) when the safety devices were readily available at the worksite and the plaintiff knows he was expected to use them but chooses not to do so for no good reason. TOPICS: sole proximate cause, elevationrelated hazard

SULLIVAN V. NEW YORK ATHLETIC CLUB 162 A.D.3d 955 (2nd Dept) (June 20, 2018)

The plaintiff was injured while he and a coworker were carrying a beam on their shoulders down a set of steps. The plaintiff felt his “knee go forward” as he walked down the steps, and he dropped the beam. The plaintiff brought an action against the owner and general contractor alleging violations of Labor Law Section 200, Section 240(1), and Section 241(6). The court held that the evidence established that the plaintiff’s injury was not caused by an elevationrelated hazard under Section 240(1). Further, the general contractor demonstrated sufficient supervisory control over the plaintiff’s work to subject it to liability under Section 200. PRACTICE NOTE: The mere fact that a plaintiff was injured while lifting a heavy object does not give rise to liability under Section 240(1). Where a plaintiff’s claims implicate the means and methods of the work, no liability can attach under Section 200 if the owner or general contractor exercises no supervisory control over the work

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GARGAN V. PALATELLA SAROS BUILDERS GROUP, INC. 162 A.D.3d 988 (2nd Dept) (June 27, 2018)

The plaintiff brought an action under Labor Law Section 200 and Section 241(6) after he was injured while moving pallets that blocked his path to make a delivery. The court granted summary judgment to the defendant general contractor as to Section 200 on the grounds that the plaintiff’s injury did not result from a physical defect at the construction site but was the result of the manner in which the plaintiff chose to make his delivery. The court dismissed the Section 241(6) claim predicated on 12 NYCRR 23-1.7(e)(1) and NYCRR 23-1.7(d) and (e) since the area where the accident occurred did not constitute a “passageway” and there was no evidence of any tripping or slipping hazards. The court also found that 12 NYCRR 23-2.1(a)(1) was not applicable. In a Labor Law Section 241(6) action, the plaintiff must plead specific and applicable Industrial Code provisions. In a manner-and-method claim, the defendant must be shown to have supervised or controlled the plaintiff’s work.

PRACTICE NOTE:

TOPICS: manner and methods, Industrial Code regulations

VITA V. NEW YORK LAW SCHOOL 163 A.D.3d 605 (2nd Dept) (July 5, 2018)

The plaintiff, an employee of the general contractor, was allegedly injured when he tripped over a pipe attached to an HVAC unit in a mechanical room. The plaintiff alleged violations of Labor Law Section 200 and Section 241(6) against the owner and subcontractor responsible for the piping. The court held that the subcontractor was not liable under Section 200 because it did not have control over the work site. The owner was not entitled to summary judgment because it offered no evidence that it did not create the condition or have actual or constructive notice of the piping. However, both entities were entitled to summary judgment as to the Section 241(6) claim because 12 NYCRR 23-1.7(e)(2) was not applicable as the pipe at issue was permanent and an integral part of the construction.

PRACTICE NOTE: Be sure to address the manner

of work theory and/or the dangerous condition argument, as applicable.

TOPICS: actual or constructive notice of dangerous conditions, manner and methods, Industrial Code regulations

ELIASSIAN V. G.F. CONSTRUCTION, INC. 163 A.D.3d 528, 79 N.Y.S.3d 645 (2nd Dept) (July 5, 2018)

The plaintiff was the owner of the property and the president of the general contractor. He was injured while on site inspecting work done by the defendant when he slipped on oil that leaked from a backhoe brought onto the premises and used by the defendant. The court held that the plaintiff was entitled to protection under Labor Law Section 240(1) and Section 241(6), as he was inspecting the work of the defendant subcontractor on behalf of his company, the general contractor. Further, the defendant was not entitled to summary judgment, as there were issues of fact as to whether it had control of the work site and was delegated duty to enforce safety protocols. PRACTICE NOTE: Inspecting the work on behalf of a general contractor is a protected activity under Labor Law Section 240(1) and Section 241(6). A subcontractor may be liable for violations of Labor Law Section 240(1) and Section 241(6) if the owner or general contractor delegates the duty to conform to the requirements of the Labor Law by granting authority to supervise and control the work that caused the plaintiff’s injury. TOPICS: protected activity, authority or control over work

SANCHEZ V. 3180 RIVERDALE REALTY, LLC 163 A.D.3d 885 (2nd Dept) (July 18, 2018)

The plaintiff was injured while performing construction work on premises owned by the defendant. The defendant owner moved for summary judgment based on the exclusivity defense of the Workers’ Compensation Law. The court held that the defendant failed to make a prima facie showing that the plaintiff’s employer and the defendant operated as a single integrated entity or that either company controlled the day-to-day operations of the other such that they could be considered alter egos of each other.


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PRACTICE NOTE: The Workers’ Compensation Law prevents a plaintiff from directly suing his own employer. This protection extends to entities that are alter egos of the entity that employs the plaintiff. TOPICS: Workers Compensation Law

PRACTICE NOTE: An indemnification agreement executed by a party after a plaintiff’s accident will not be applied retroactively in the absence of evidence that the agreement was made as of a date prior to the accident and that the parties intended the agreement to apply as of that date. TOPICS: contractual indemnification, prima

CABRERA V. ARROW STEEL WINDOW CORP.

facie burden

163 A.D.3d 758 (2nd Dept) (July 18, 2018)

The plaintiff was injured when he fell from a ladder while performing asbestos abatement for a subcontractor. The court held that, under Labor Law Section 240(1), the plaintiff was entitled to summary judgment against the defendant, who had subcontracted with plaintiff’s employer. The defendant had directly entered into a contract with plaintiff’s employer and had the authority to exercise control over the work, even if it did not actually do so. Labor Law Section 240(1) applies to contractors, owners and their agents. A party is deemed an agent of an owner or general contractor when it has supervisory control and authority over the work being done where a plaintiff is injured. The determinative factor is whether the party had the right to exercise control over the work, not whether the right was actually exercised.

PRACTICE NOTE:

TOPICS: authority or control over work,

application of Labor Law

ZALEWSKI V. MH RESIDENTIAL 1, LLC 163 A.D.3d 900 (2nd Dept) (July 18, 2018)

The plaintiff was not entitled to summary judgment on his Labor Law Section 240(1) claim because his own testimony raised a triable issue of fact. The plaintiff testified that he was injured when he fell from a ladder but admitted that he told his treating doctors he was injured when he tripped and fell on the sidewalk. Further, the court held that the defendant/third-party plaintiff was not entitled to summary judgment on its contractual indemnification claim because the agreement containing the indemnification clause was signed after the plaintiff’s accident and there were issues of fact as to whether the parties intended for the provision to apply retroactively.

KUSAYEV V. SUSSEX APARTMENTS ASSOCIATES, LLC 163 A.D.3d 943 (2nd Dept) (July 25, 2018)

The court held that the defendant-owner established the plaintiff was not engaged in construction work and was not working within a construction area within the meaning of Labor Law Section 240(1) and 241(6), since the building materials he was delivering were not being “readied for immediate use” but were instead “being stockpiled for future use.” The court also held that the defendant owner was entitled to summary judgment on Labor Law Section 200 because it did not create or have actual or constructive notice of the alleged condition that caused plaintiff’s injury and did not supervise or control the means and methods of the plaintiff’s work. PRACTICE NOTE: The

plaintiff must be engaged in a protected activity in a protected area to benefit from the Labor Law. Where an accident is alleged to involve defects in both the premises and the equipment used at the work site, the property owner must address the proof applicable to both liability standards.

TOPICS: protected activity, manner and methods, property owner

RAPALO V. MJRB KINGS HIGHWAY REALTY, LLC 163 A.D.3d 1023 (2nd Dept) (July 25, 2018)

The plaintiff was injured when a plank on a scaffold he was erecting broke, causing him to fall. The court held that the plaintiff established his prima facie entitlement to summary judgment with evidence that he was not provided with necessary protection from the gravity-related risk of his work and that this failure was a proximate cause of his injuries. The defendant’s contention that the plaintiff’s failure to use a safety harness was the sole proximate cause of the accident failed because there was

no evidence that the plaintiff was informed as to where the harnesses were kept or that he was instructed in their use. The court also held that the plaintiff was not the sole proximate cause of his accident, even though he was constructing the scaffold that he fell from. PRACTICE NOTE: Proper protection as prescribed by Labor Law Section 240(1) must be provided in order to comply with the statute. TOPICS: proper safety device, defective or inadequate protection, sole proximate cause, elevation-related hazard

DIA V. TREVISANI 164 A.D.3d 750 (2nd Dept) (August 22, 2018)

The plaintiff was injured when a ladder he was using to access a home slipped, causing him to fall. The owner, who was residing in a nursing home at the time of the accident, died thereafter. The plaintiff had been retained by the homeowner’s children. The owner’s son directed the plaintiff to use the ladder to gain access to the home via the window. The plaintiff alleged Labor Law Section 240(1) and Section 241(6) claims and the defendants moved for summary judgment, seeking a dismissal based on the homeowner’s exemption, and plaintiff cross-moved on Section 240(1). The court granted summary judgment to the defendantdaughter executrix of the decedent’s estate, as she demonstrated that the decedent owned the one-family residence where the work was being performed and did not direct or control the work. The court denied summary judgment to the defendant-son since he did not own the premises and a question of fact existed as to whether he was an agent of the owner and thus, whether he had supervisory control and authority over the work being done. The homeowners’ exception to the Labor Law always imposes a twoprong test: ownership of a one- or two-family residence and a lack of supervision, direction or control by the homeowner.

PRACTICE NOTE:

TOPICS: fall from ladder, homeowner’s exemption, direct and control the work

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SECOND DEPARTMENT

POWELL V. NORFOLK HUDSON, LLC

OPALINSKI V. CITY OF NEW YORK

164 A.D.3d 1283 (2nd Dept) (September 12, 2018)

164 A.D.3d 1354 (2nd Dept) (September 19, 2018)

The plaintiff was injured when he was hit by a wooden form that was dropped from several stories above by workers who were constructing a building on an adjacent lot. Factual issues existed as to whether the defendant-owner contracted to have the injury-causing work performed and had a sufficient nexus to that work and whether the defendant had a duty to provide the plaintiff with a safe place to work, precluding dismissal of plaintiff’s claims against the owner under Labor Law Section 200, Section 240 and Section 241.

While working on a renovation project at a New York City public school, the plaintiff was injured when a handheld angle grinder he was holding spun out of control, resulting in the blade cutting his left hand. The court granted summary judgment in favor of the defendants, dismissing the plaintiff’s cause of action alleging a violation of Labor Law Section 241(6). Thereafter, the plaintiff moved for leave to renew his opposition of that portion of the defendants’ summary judgment motion based on a purported change in the law affecting 12 NYCRR 23-1.5(c)(3) (relying on a First Department case, Becerra v. Promenade Apts. Inc., 126 A.D.3d 557, which held that 12 NYCRR 23-1.5(c)(3) was sufficiently specific to support a cause of action alleging a violation of Section 241(6)). The court denied the plaintiff’s application, holding that at the time the plaintiff’s motion was made, the precedent in the Second Department was contrary to Becerra and that of the First Department (citing Spence v. Island Estates at Mt. Sinai II, LLC, 79 A.D.3d 936, which held that 12 NYCRR 23-1.5(c) (3) was not sufficiently specific to support a Section 241(6) cause of action), and therefore, there was no change in the applicable law to warrant renewal.

PRACTICE NOTE: Issues of fact as to whether the movant was considered an “owner” for purposes of liability under the Labor Law were created by language of the construction contracts and location of the work performed by plaintiff on the date of the incident. TOPICS: falling objects, application of Labor Law

JOHNSON V. LEND LEASE CONSTRUCTION LMB, INC. 164 A.D.3d 1222 (2nd Dept) (September 12, 2018)

The plaintiff was injured when he fell after attempting to step up onto a rebar grid located 18 inches above the corrugated steel deck on which he had been standing. The evidence was undisputed that plaintiff could fit his foot through the opening of the grid but not his entire body. Based on this evidence, the court granted the defendant general contractor/construction manager’s motion for summary judgment dismissing the plaintiff’s complaint, finding that Labor Law Section 240(1) and Section 241(6) do not apply to openings that are too small for a worker to completely fall through.

PRACTICE NOTE: The court’s decision references

the applicable standards a plaintiff must meet to establish a claim under Section 200.

TOPICS: Application of Labor Law, prima facie burden

CAMPANELLI V. LONG ISLAND LIGHTING COMPANY 164 A.D.3d 1416 (2nd Dept) (September 26, 2018)

The plaintiff, a child of a former employee of one of the defendants, brought suit for personal injuries allegedly sustained due to his exposure to lead and other hazardous substances in-utero and in the first several months of his life. The court granted all of the defendants’ motions for summary judgment, dismissing the plaintiff’s complaint and Labor Law Section 200 claim on the basis that the defendants did not owe plaintiff a duty of care. The court found that at common law, an employer’s duty to provide a safe workplace is limited to employees and does not extend to an employee’s family members and children. The court further stated that neither the plaintiff nor his mother during her pregnancy belonged to the class of individuals intended to be protected by the Labor Law provisions.

PRACTICE NOTE: 12 NYCRR 23-1.7(b) (pertaining to “hazardous openings”) does not apply to openings that are too small for a worker to completely fall through.

motion for leave to renew is the appropriate vehicle for seeking relief from a prior order based on a change in the law, however, the court will apply the law of the department, as written, at the time the motion is made. This decision calls into question the Second Department’s prior decision in Spence v. Island Estates at Mt. Sinai II, LLC, 79 A.D.3d 936, 914 N.Y.S.2d 203 (2nd Dep’t. 2010), and the court’s position as to whether 12 NYCRR 23-1.5(c)(3) is sufficiently specific to support a cause of action alleging a violation of Section 241(6).

PRACTICE NOTE: A plaintiff must qualify as an individual intended to be protected by Labor Law provisions.

TOPICS: motion for leave tor, Industrial Code regulations

TOPICS: application of Labor Law, protected class of individual

TOPICS: application of Labor Law, hazardous openings, elevation-related hazards

HILL V. MID ISLAND STEEL CORP.

DOS ANJOS V. PALAGONIA

10 | Labor Law Update

PRACTICE NOTE: A

motion for summary judgment with respect to the plaintiff’s Labor Law Section 200 claim based on evidence submitted by the defendant that it was not an owner, contractor, or agent with regard to the plaintiff’s work. However, the court denied the defendant’s motion with respect to the common-law negligence claim, stating that the defendant failed to make a prima facie showing that the lift was not in a defective or dangerous condition.

164 A.D.3d 1425 (2nd Dept) (September 26, 2018)

165 A.D.3d 626 (2nd Dept) (October 3, 2018)

The plaintiff was injured while using a telescoping lift owned by defendant. The defendant claimed the property owners borrowed the lift without the defendant’s permission. The court granted the defendant’s

The plaintiff filed suit to recover damages for personal injuries sustained while performing floor installations on a worksite. The court denied the defendant’s motion for summary judgment under Labor Law Section 200, Section 240, and Section 241(6), stating


SECOND DEPARTMENT

that factual issues existed as to whether the defendants retained plaintiff’s employer to perform floor installations. The court found further issues of fact as to whether the door through which the plaintiff entered prior to the accident was locked or unlocked, thereby precluding summary judgment on the defendant’s argument that the plaintiff’s conduct was the sole proximate cause of the accident under Section 200. In finding issues of fact regarding Section 200, the court relied on an affidavit submitted by plaintiff which claimed that the subject door was unlocked.

PRACTICE NOTE:

TOPICS: application of Labor Law, authority or control over work

SIMMONS V. CITY OF NEW YORK 165 A.D.3d 725 (2nd Dept) (October 3, 2018)

The plaintiff was injured while moving an air compressor via a pallet jack horizontally across the floor when it became caught in concrete debris. The court granted the defendants’ motion for summary judgment pursuant to Labor Law Section 240(1), noting that the plaintiff’s injuries were not caused by the elevation or gravityrelated risks encompassed by Labor Law Section 240(1). The court further granted the defendantowner’s motion but denied the defendantgeneral contractor’s motion for summary judgment pursuant to Section 200, finding that, while there were no issues of fact with respect to owner, there were issues of fact as to whether the general contractor created a dangerous condition on the floor that caused the pallet jack to stop short. PRACTICE NOTE: The

court’s decision illustrates the need for a plaintiff to establish that the injuries were caused by elevation or gravityrelated risks encompassed by Section 240(1).

TOPICS: elevation and gravity-related hazards, application of Labor Law, actual or constructive notice of dangerous conditions

FEDRICH V. GRANITE BUILDING 2, LLC 165 A.D.3d 754 (2nd Dept) (October 10, 2018)

The plaintiff, a fire marshal, was injured while conducting an inspection of the fire alarm and sprinkler system at an office building when he tripped on a pile of construction debris. The owner and managing agent filed third-party

complaints against the general contractor and fire sprinkler company. The court granted the third-party defendant-fire sprinkler company’s motion for summary judgment dismissing the third-party claims and cross-claims for contractual and common-law indemnification based on evidence that the owner and general contractor had certain responsibilities with respect to removal of construction debris and therefore would not be able to prove themselves free from negligence if plaintiff was successful on his claims. However, the court denied the fire sprinkler company’s motion to dismiss the contribution claims based on evidence that the sprinkler company was performing work at the time of (and in the location of) plaintiff’s fall, placed at least some of its debris in that location and was responsible for removing its own debris. Lastly, the court denied the fire-sprinkler company’s motion to dismiss the plaintiff’s cause of action against the owner and managing agent under Section 241(6), finding that the evidence established that construction was ongoing and the plaintiff’s inspection work was essential and integral to the progress of construction. PRACTICE NOTE: The court held that, under Section

241(6), the question of whether “inspection work” falls under the purview of Section 241(6) must be decided on a case-by-case basis depending on the type of work performed.

TOPICS: application of Labor Law, protected activity, actual or constructive notice, routine maintenance, contribution, indemnification

MOROCHO V. BOULEVARD GARDENS OWNERS CORP. 165 A.D.3D 778 (2nd Dept) (October 10, 2018)

While renovating an air-conditioning unit in an apartment building, the plaintiff fell from a scaffold and sustained injuries. Through plaintiff’s uncontested deposition testimony, the evidence established that the scaffold did not have safety railings, and the plaintiff was not provided with a safety device to prevent him from falling, in violation of Labor Law Section 240(1). It was also undisputed that the scaffold was a movable scaffold that lacked safety railings, in violation of Section 241(6). Based on the foregoing, the court granted the plaintiff’s motion for summary judgment under Section 240(1) and Section 241(6). PRACTICE NOTE: Proper protection as prescribed by Section 240(1) and Section 241(6) must be met to comply with the statute.

TOPICS: application of Labor Law, authority or control over work, protected activity, failure to provide protection

PAGUAY V. CUP OF TEA, LLC 165 A.D.3D 964 (2nd Dept) (October 17, 2018)

The plaintiff was injured when he fell through the roof of a building to the floor below. The court denied the plaintiff’s motion for summary judgment under Labor Law Section 240(1), finding that the plaintiff failed to establish that the partial collapse of the roof and, in turn, the need for safety devices to protect him from that hazard, were foreseeable, as required to hold the demolition contractor liable. Separately, the court granted the defendant-demolition contractor’s motion dismissing the plaintiff’s causes of action and the owner’s cross-claims asserted against it on submission of the Workers’ Compensation Board’s determination that the plaintiff was the defendant’s employee and the claims therefore barred by the exclusivity provisions of the Workers’ Compensation Law. PRACTICE NOTE: At

the plaintiff’s deposition, he testified that he was told that the roof collapsed because the beams from the third-floor ceiling had been cut. But the court determined that this testimony was inadmissible hearsay and did not satisfy the foreseeability requirement of Section 240(1).

TOPICS: Workers’ Compensation Law, foreseeability of hazard, need for safety devices

MARQUEZ V. MASCIOSCIA 165 A.D. 3d 912 (2nd Dept) (October 17, 2018)

While installing insulation, the plaintiff was injured when the ladder he was standing on slipped, causing him to fall to the ground. The owners moved for summary judgment based on the homeowner’s exemption to the Labor Law. The court granted the defendants’ motion, dismissing the plaintiff’s causes of action under Labor Law Section 240(1) and Section 241(6), finding that the defendants established that the owners intended to reside on the second floor of the premises after the renovations were completed, and the plaintiff failed to argue that the defendants directed or controlled his work. PRACTICE NOTE: To receive the protection of the homeowner’s exemption, defendants must SPRING 2019 

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SECOND DEPARTMENT

establish that the premises consisted of a oneor two-family residence and the owner did not direct or control the work performed.

GILLETT V. CITY OF NEW YORK

plaintiff’s injuries. The court also dealt with the issue of spoliation and found that the general contractor’s disposal of a broken plank after dismantling the subject scaffold postaccident was sanction-able, since there was no indication litigation was contemplated. However, the sanction of striking a pleading was too punitive; an adverse-inference charge was more appropriate.

165 AD3d 1064 (2nd Dept) (October 24, 2018)

PRACTICE NOTE:

the plaintiff’s injuries are at least partially attributable to the defendant’s failure to provide protection as mandated by the statute, the defendant will be held liable. The court granted the contractor’s motion for summary judgment dismissing the plaintiff’s Labor Law Section 200 and Section 241(6) claims, noting that the evidence demonstrated the contractor had general supervisory authority over the plaintiff’s work and the plaintiff’s claims arose from the subcontractors’ methods or materials.

TOPICS: sufficiency of proof, proper safety service, defective or inadequate protection

PRACTICE NOTE: This decision reinforces the importance of obtaining clear testimony concerning the source of direction and control over the plaintiff’s specific actions in and around the time of the injury.

TOPICS: homeowner’s exemption, one-or twofamily dwelling exemption, unsecured ladder

The plaintiff, a journeyman carpenter, alleged that he was injured when he fell from a 12-foot A-frame ladder while installing Sheetrock in the basement of a school. The plaintiff had placed the ladder in the closed position and leaned it against the metal framing of a wall and fell when the ladder slipped out from under him. The court denied the defendant’s motion to dismiss Labor Law Section 240(1), finding that the defendants failed to satisfy their prima facie burden of establishing the plaintiff’s actions were the sole proximate cause of his accident. They held that the defendants failed to eliminate all triable issues of fact as to whether the ladder could have been placed in a manner that would have allowed the plaintiff to safely perform his work and that the defendants also failed to establish that the manner in which the plaintiff used the ladder was not approved of by his supervisor. PRACTICE NOTE: When attempting to defend a Labor Law case on sole proximate cause grounds, it is critical to ensure that proof is developed to demonstrate that the plaintiff’s specific conduct was both unnecessary to execute the job function, and that such conduct was not authorized. TOPICS: sole proximate cause, sufficiency of proof

MCDONNELL V. SANDARO REALTY, INC. 165 AD3d 1090 (2nd Dept) (October 24, 2018)

The plaintiff was injured while working at a construction project when a plank on the scaffold on which he was standing broke, causing him to fall about six feet to the ground. The court granted the plaintiff’s motion for summary judgment on his Section 240(1), since the evidence demonstrated that the property owner, as a statutory defendant under the Labor Law, failed to furnish or erect a scaffold that would protect the plaintiff from an elevation-related risk and that the failure to do so was a proximate cause of the 12 | Labor Law Update

Although proper protection is always required, where the protection is defective and then disposed of by a party, the court will impose sanctions.

PADILLA V. PARK PLAZA OWNERS CORP. 165 AD3d 1272 (2nd Dept) (October 31, 2018)

The plaintiff was injured when he fell 12 to 16 feet from the top of a temporary oil tank. The court granted the plaintiff’s motion for summary judgment on his Section 240(1) claim, as the plaintiff demonstrated that he was engaged in a protected activity at the time of his accident, that he was working at an elevated location, and that he had not been provided with appropriate safety devices to protect him from such a fall. The court also denied the defendant’s motion for summary judgment on Labor Law Section 241(6) predicated on 12 NYCRR 23-1.7(d), finding that the defendants’ failed to establish that a slippery condition on the oil tank was not a proximate cause of the plaintiff’s fall. PRACTICE NOTE: Always closely analyze all elements of Labor Law Section 240(1), as here an oil tank was deemed a structure.

TOPICS: contribution and indemnification, residential projects, supervisory authority, direction and control

TROTMAN V. VERIZON COMMUNICATIONS, INC. 2018 NY Slip Op 07483 (2nd Dept) (November 7, 2018)

The plaintiff sustained injuries when he fell from the hood of a cargo van while trying to climb to the roof to replace a beacon-strobe light. The court granted summary judgment dismissing the plaintiff’s Labor Law Section 240(1) claim and held that routine maintenance such as replacing burnt-out light bulbs does not fall within the protections of the Labor Law. PRACTICE NOTE: Even at elevated positions, routine maintenance such as the replacement of components due to normal wear and tear are not protected under the statute. TOPICS: scope of protections, protected activities, routine maintenance

TOPICS: authority to supervise, protected activities

POULIN V. ULTIMATE HOMES, INC. 2018 NY Slip Op 07468 (2nd Dept) (November 7, 2018)

The plaintiff, a drywall installer, was injured at a residential construction site when he fell through the opening of an unfinished stairwell into the basement of the premises. The plaintiff and his supervisor had partially covered the unfinished stairwell opening with plywood to hang drywall on the ceiling above the stairwell. The court granted The plaintiff’s motion for summary judgment on Labor Law Section 240(1), holding that regardless of the precise manner in which an accident may occur, if

QUIZHPI V. SOUTH QUEENS BOYS & GIRLS CLUB, INC. 2018 NY Slip Op 07469 (2nd Dept) (November 7, 2018)

The plaintiff, while preparing to remove asbestos from a roof, was injured when a portion of the roof gave way, causing him to fall through to the second floor of the building. The plaintiff moved for summary judgment on Labor Law Section 240(1) and Section 241(6) claims. The court found that the need for safety devices to protect the plaintiff from an elevation-related hazard was foreseeable and that the plaintiff demonstrated that the asbestos-removal work he was performing


SECOND DEPARTMENT

at the time of the accident qualified as “demolition work” within the scope and meaning of the Industrial Code. With regard to the Section 241(6) finding, the court held that summary judgment was appropriate, notwithstanding evidence of the plaintiff’s own comparative negligence. This is the first application of the Court of Appeals case of Rodriguez v. City of New York, 31 N.Y.3d 312 (2018), to a Labor Law case. We anticipate an increase in efforts by plaintiffs to obtain summary judgment on Section 241(6) claims.

PRACTICE NOTE:

TOPICS: demolition, safety devices, foreseeability, Labor Law Section 240, Labor Law Section 241(6)

JONES V. CITY OF NEW YORK 2018 NY Slip Op 07708 (2nd Dept) (November 14, 2018)

The plaintiff was injured when ascending a “ship’s ladder” to replace a missing bolt on that ladder. As he neared the top of the ladder, the plaintiff grabbed the top rung, which came loose, causing him to fall to the ground. The court denied the plaintiff’s motion for summary judgment, finding that he failed to establish a violation of Labor Law Section 240(1) or that his actions were not the sole proximate cause of his injuries. The court specifically noted that the plaintiff knew that the top rung of the ladder was missing a bolt, and opted to use that ladder notwithstanding the availability of other ladders and pipe scaffolding. Further, the court found that the defendant had raised triable issues of fact as to whether the ladder itself was an integral part of the work being performed and therefore not subject to Industrial Code regulations. PRACTICE NOTE: This decision reinforces the importance of thoroughly investigating the nature of the jobsite, including all alternative means of accessing the specific work area, to determine whether the means of access selected by the plaintiff could give rise to a sole proximate cause defense. TOPICS: sole proximate cause, prima facie evidence, integral to the work

GIANNAS V. 100 3RD AVENUE CORP.

CUTRONA V. PLAZA CONSTRUCTION

2018 NY Slip Op 08009 (2nd Dept) (November 21, 2018)

2018 NY Slip Op 08112 (2nd Dept) (November 28, 2018)

The plaintiff’s motion for summary judgment based on Labor Law Section 240(1) was denied where there were differing versions of how the accident occurred and one version provided by a witness was not a violation of Section 240(1). The court also granted the construction manager summary judgment since they did exercise supervision, direction, or control over the work and their contract specifically excluded them from continuing the means and methods of the work.

The plaintiff, a journeyman electrician, was injured when the drill he was using “bound up,” causing it to twist and fracture his hand. The defendants moved to dismiss plaintiff’s Labor Law Section 200 and general negligence claims. The court granted the motion, noting that defendants demonstrated that they did not provide the equipment at issue and did not have the authority to supervise or control the performance of the work. The plaintiff’s conclusory contention that he believed the equipment was provided by the defendants was insufficient to create a triable issue of fact.

PRACTICE NOTE: This decision reinforces the importance of securing sworn testimony to challenge a plaintiff’s version of events as well as the need to use precise language in construction agreements delineating responsibility for means, methods and safety. TOPICS: manner and methods, questions of fact, construction manager, authority of control over work

GROSSKOPF V. BEECHWOOD ORGANIZATION 2018 NY Slip Op 08011 (2nd Dept) (November 21, 2018)

The plaintiff was injured when, while delivering cabinets to a residential complex under construction, he stepped onto a grassy lawn abutting the driveway on the premises, walked toward the rear of his truck, and slipped on snow and ice on the grass. Defendants successfully moved for summary judgment on plaintiff’s Labor Law Section 200 and Section 241(6) claims. The court found the accident did not occur on a passageway or in a work area, so 12 NYCRR 23-1.7(d) and (e) did not apply, and there was no duty on the part of the owners to shovel or otherwise remedy the snow and ice on the grassy lawn, which was not designed to be a passageway. PRACTICE NOTE: It must always be kept in mind

that any violation of the Industrial Code must be the proximate cause of the accident and applicable to the specific facts.

TOPICS: open and obvious, passageways, Industrial Code

PRACTICE NOTE: Where the accident arises out of the means and methods of the work, rather than a defect in the premises, defendants must show they did not exercise supervision, direction, or control. TOPICS: supervisory control, defective equipment

DOWD V. COUNTY OF NASSAU 2018 NY Slip Op 08114 (2nd Dept) (November 28, 2018)

The plaintiff was injured when he received an electrical shock during the course of replacing a burnt-out 1,000–watt metal halide light bulb on a catwalk suspended above the ice rink at Nassau Coliseum. The court denied defendant’s motion for summary judgment to dismiss plaintiff’s Labor Law Section 200 claims, holding that the defendant’s expert affidavit was speculative, conclusory, and lacked a proper foundation, insofar as the expert tested the light fixture approximately 2½ years after the incident, there was no showing that the light fixture was in the same condition as it was on the date of the accident, and failed to explain what testing was involved, or include any empirical data or relevant industry standards to support his conclusions. The court’s holding is a reminder of the importance of both an early expert investigation, as well as establishing in an affidavit the factual predicate for an expert’s opinion.

PRACTICE NOTE:

TOPICS: expert retention, investigation, Labor Law Section 200

SPRING 2019 

|  13


SECOND DEPARTMENT

MITCHELL V. CATON ON THE PARK, LLC 167 A.D.3d 865 (2nd Dept) (December 19, 2018)

The plaintiff was injured when his pants leg caught on a piece of rebar protruding from concrete, causing him to fall. The court held that the defendant-construction manager was entitled to dismissal of plaintiff’s Labor Law Section 200 and common-law negligence claims because it presented evidence that it had no authority to supervise or control the plaintiff’s work and that it did not have control over the work site, nor did it create or have notice of the alleged hazard. This case presents a hybrid “manner and methods” and “dangerous or defective conditions” case under Section 200 and gives a good overview of liability under Section 200.

PRACTICE NOTE:

TOPICS: common-law negligence, manner and methods, actual supervision, authority or control over work

14 | Labor Law Update


THIRD DEPARTMENT

LAMELA V. VERTICON, LTD.

COOPER V. DELLIVENERI

162 A.D.3d 1268 (3rd Dept) (June 14, 2018)

166 A.D.3d 1152 (3rd Dept) (November 1, 2018)

The plaintiffs in the underlying action were injured when an unsecured wall collapsed, knocking over an extended scissor lift that they were using. The property owner sought contractual indemnification from the plaintiff’s employer pursuant to a construction contract that required indemnification arising from the use or operation by the employer of construction equipment furnished to them to perform their work. The employer argued that the provision did not apply because it owned, rather than was furnished with, the scissor lift at issue. The court rejected this argument and awarded the owner contractual indemnification.

The plaintiff was hired by the owner to install siding on a rental property and was injured when he fell from a makeshift elevated platform that he set up. The court granted the plaintiff’s motion for summary judgment on Labor Law Section 240(1) grounds, holding that the owner failed to provide statutorily required protection, such as a scaffold or safety harness. Where a party charged with safety fails to provide a proper safety device, liability will be imposed.

PRACTICE NOTE:

TOPICS: Labor Law Section 240(1), failure to

provide protection, defective or inadequate protection

PRACTICE NOTE: In rejecting the employer’s argument, the court looked to the intent of the provision, which plainly referred to equipment furnished to employees, not to the employer.

BURHMASTER V. CRM RENTAL MANAGEMENT, INC.

TOPICS: contractual indemnification

166 A.D.3d 1130 (3rd Dept) (November 1, 2018)

WILEY V. MARJAM SUPPLY CO., INC. 166 A.D.3d 1106 (3rd Dept) (November 1, 2018)

The plaintiff was injured when Sheetrock that was stacked on its side at the same level as plaintiff fell onto his right ankle as he was walking by it. Motions for summary judgment by the defendants (including the owner, general contractor and various subcontractors) on the plaintiff’s Labor Law Section 200, Section 240(1), and Section 241(6) causes of action were granted. The court held that there was not a significant elevation differential between the Sheetrock and plaintiff, and the plaintiff thus was not entitled to recovery under Section 240(1).

The plaintiff claimed he was blown off the roof of a two-story building while he was performing emergency roofing repairs on a windy day. The plaintiff was granted summary judgment on Labor Law Section 240(1), despite the defendant’s cross-motion arguing that this was an unwitnessed accident and that the accident could not have occurred as claimed. The fact that an accident is unwitnessed does not bar summary judgment where there are no material issues of fact and the defendant’s arguments constitute speculation.

PRACTICE NOTE:

TOPICS: Labor Law Section 240(1), elevation related risk, burden of proof

The court noted that the mere fact that plaintiff is struck by a falling object does not establish liability. Rather, the plaintiff must establish that the object fell while being hoisted or secured because of the absence or inadequacy of a safety device.

PRACTICE NOTE:

TOPICS: falling objects, Labor Law Section 240(1)

SPRING 2019 

|  15


FOURTH DEPARTMENT

SMILEY V. ALLGAIER CONSTR. CORP. 162 A.D.3d 1481 (4th Dept) (June 8, 2018)

The plaintiff was injured when a large motor he and a co-worker were lifting by hand fell onto him as he was adjusting his grip. The court denied the plaintiff’s summary judgment motion on Labor Law Section 240(1) on the grounds that a question of fact existed relative to whether appropriate safety devices were present onsite. They also granted the defendant’s summary judgment on Section 241(6) because the regulation relied on by plaintiff was inapplicable to the facts. 12 NYCRR 23-1.7(f) applies to stairways, ramps, or runways used in “ascending or descending to a different level,” not to merely raising or lowering the level of something on site.

PRACTICE NOTE:

TOPICS: falling objects, defective or inadequate protection, gravity-related risks, Industrial Code violations

ROHR V. DEWALD 162 A.D.3d 1528 (4th Dept) (June 8, 2018)

The plaintiff was injured when he was knocked off a scaffold by the concrete-pump hose he was guiding. The plaintiff was working for the general contractor, which hired the concrete supplier. The court granted the concrete supplier’s summary judgment motion as to liability under Labor Law Section 241(6). The concrete supplier successfully argued that parties other than the owner or general contractor are liable pursuant to Section 241(6) only if they have been given the authority to supervise and control the work being performed at the time of injury, which the facts showed they were not. When examining whether a party bears liability under the Labor Law, direction, supervision and control should be the primary focus.

PRACTICE NOTE:

TOPICS: Labor Law Section 241(6), authority or control over work

MARTIN V. NIAGARA FALLS BRIDGE COMMISSION 162 A.D.3d 1604 (4th Dept) (June 15, 2018)

The plaintiff alleges he was injured when the bridge-scaffolding sheet that he was detaching from underlying support cables tipped, causing him to fall 25 to 30 feet. With respect to Labor Law Section 240(1), the court denied the owner and employer’s motion and held that a violation of Section 240(1) occurs where a scaffold or elevated platform is inadequate in and of itself to protect workers against the elevation-related hazards encountered while assembling or dismantling that device. The court found that a sixfoot lanyard supplied to the plaintiff did not constitute an adequate safety device because it was too short to allow him to disassemble the scaffold with it attached. PRACTICE NOTE:

TOPICS: Labor Law Section 240(1), failure to

provide protection, defective or inadequate protection

BUND V. HIGGINS 162 A.D.3d 1738 (4th Dept) (June 29, 2018)

The plaintiff was injured when he fell from the roof of the defendant’s residential home. The court denied the plaintiff’s motion for summary judgement on Labor Law Section 240 and Section 241(6) liability, finding the homeowners exempt from liability, even though they acted as general contractors by obtaining the necessary permits, purchasing materials, and hiring contractors, because they did not supervise or control the method or manner of the plaintiff’s work. PRACTICE NOTE: This decision highlights that the homeowners’ exemption applies to those who do not supervise or control the method or manner of the work, even if they act as a general contractor in some aspects. TOPICS: homeowners’ exemption, means and methods

STIEGMAN V. BARDEN & ROBESON CORP. SOCHAN V. MUELLER 162 A.D.3d 1621 (4th Dept) (June 15, 2018)

The plaintiff was injured while working for a telephone company when the owner’s ladder he was using, which lacked rubber feet, kicked out from under him. The court denied the defendant-owner’s Labor Law Section 240(1) summary judgment motion. The court concluded that it was “of no moment” that the accident occurred during plaintiff’s pre-job survey to determine the best way to do his job. With respect to the common-law negligence cause of action, the court denied the owner’s motion because it did not establish that it did not create the dangerous condition (the lack of rubber feet). The court also noted that the absence of rubber feet on a ladder is a visible and apparent defect, evidence of which may be sufficient to raise a question of fact on notice.

PRACTICE NOTE:

TOPICS: failure to provide protection, defective or

inadequate protection, common-law negligence

162 A.D.3d 1694 (4th Dept) (June 29, 2018)

The plaintiff was injured when a staircase at the home he was working on collapsed. One of the defendants was the self-proclaimed “project manager” and “supplier of material” for the construction. The court found an issue of fact as to whether the staircase was temporary or permanent under the Labor Law, noting that a temporary staircase used for access to and from the upper levels of a house under construction is the functional equivalent of a ladder and therefore falls under “other devices” within the meaning of Labor Law Section 240(1). The court denied the project manager summary judgment on Section 240(1) and Section 241(6) liability because there were issues of fact regarding whether the defendant had the authority to supervise and control the work. While construction managers generally are not considered “contractors” or “owners” under Section 240(1), they can be held liable as a statutory agents of the property owner where they have the ability to control the activity that brought about the injury.

PRACTICE NOTE:

TOPICS: Labor Law Section 240(1) liability, vicarious liability, agency

16 | Labor Law Update


FOURTH DEPARTMENT

KIPP V. MARINUS HOMES, INC. 162 A.D.3d 1673 (4th Dept) (June 29, 2018)

The plaintiff fell from a ladder that he had placed adjacent to his work area and claimed that the ladder was not an adequate safety device in violation of Labor Law Section 240(1) because the ladder could not be placed directly below his work site. The court considered photographs and a video recording from a safety expert that depicted the expert placing the ladder directly under the work site and standing on it. The plaintiff conceded that other safety devices were available at the site and that he inquired as to alternative safety devices before using the ladder. The court found that plaintiff’s actions were the sole proximate cause of his injuries and that defendant could not be liable under Labor Law Section 240(1). The court rejected the plaintiff’s contention that he could not be the sole proximate cause of his injuries without egregious misconduct or intentional misuse of the safety equipment.

PRACTICE

NOTE:

TOPICS: Labor Law Section 240(1), sole proximate cause defense

PROVENS V. BEN-FALL DEV., LLC 163 A.D.3d 1496 (4th Dept) (July 25, 2018)

The plaintiff was working on a pitched roof where toe boards were nailed directly to the roof two to three feet up from the bottom edge. While the plaintiff was working, the toe boards detached from the roof, causing the plaintiff to fall. The court found that the plaintiff established that his injury was proximately caused by the failure of a safety device to afford protection from an elevation-related risk as required by Labor Law Section 240(1). While the question of whether a device provided proper protection from an elevation-related risk is typically a question of fact, this case demonstrates the unusual circumstance where unrefuted evidence established that the device failed to perform its intended function, triggering Labor Law Section 240(1) liability.

PRACTICE NOTE:

TOPICS: Labor Law Section 240(1) liability, adequate

safety devices, common-law indemnification

PARKHURST V. SYRACUSE REGIONAL AIRPORT AUTHORITY

LORD V. WHELAN AND CURRY CONSTRUCTION SERVICES, INC.

165 A.D.3d 1631 (4th Dept) (October 5, 2018)

166 A.D.3d 1496 (4th Dept) (November 9, 2018)

The plaintiff slipped and fell on plastic sheeting covering newly laid carpet after descending a ladder. The defendant argued that the plaintiff’s injuries resulted from his own methods of work rather than a dangerous condition at the work site. The court rejected the defendant’s argument because the evidence established that neither the plaintiff nor his employer placed the plastic sheeting beneath the ladder, and, as a result, the plaintiff’s injury could not have resulted from his own method of work. The court also rejected the contention that the plastic sheeting was an “open and obvious hazard inherent in decedent’s work”.

The plaintiff was injured when he fell through a roof while working on a demolition project. The court denied the defendant’s motion for partial summary judgment on the issue of Labor Law Section 240(1) liability because the plaintiff established that defendant’s failure to provide adequate fall protection was a proximate cause of the accident.

PRACTICE NOTE: The “open and obvious” defense

only applies when it is an open and obvious hazard inherent in the injury-producing work. The issue of whether a condition is open and obvious is relevant to the comparative negligence of the plaintiff but does not negate the defendant’s duty to keep the premises reasonably safe.

TOPICS: open and obvious, manner and methods

ANDERSON V. NATIONAL GRID USA SERVICE CO. 166 A.D.3d 1513 (4th Dept) (November 9, 2018)

The plaintiff, a technician, was injured while attempting to access a utility pole. The plaintiff could not obtain ground-level access to the utility pole because the path was blocked by a gate. The plaintiff then climbed over a pitched roof to gain access to the pole. As he reached the peak of the roof, the ladder he was carrying was entangled in hanging utility wires and his ankle became entangled with a telephone wire, causing him to fall. The court granted the defendant’s motion for summary judgement under Labor Law Section 200 liability, finding that the defendants exercised no supervisory control over the work and that the accident resulted from the manner in which the plaintiff performed the work.

PRACTICE NOTE: A defendant-owner/contractor cannot establish the sole proximate cause defense unless there is proof that appropriate safety devices were readily available and the plaintiff chose not to use them. TOPICS: Labor Law Section 240(1), sole proximate cause defense

ALLINGTON V. TEMPLETON FOUNDATION 167 A.D.3d 1437 (4th Dept) (December 21, 2018)

The plaintiff was injured when he fell from the top half of an extension ladder that had no feet in an icy environment. The court held that plaintiff was entitled to summary judgment on his Labor Law Section 240(1) claim, since the ladder in question met the plaintiff’s prima facie burden that the injury was caused by the failure of a safety device to provide protection from an elevation-related risk. The court also held that the plaintiff was entitled to summary judgment on his Section 241(6) claim, which was predicated on 12 NYCRR 23-1.21(b)(3)(iv), which requires a ladder to have sufficient feet, and that the ladder’s missing feet constituted prima facie evidence of other Industrial Code violations that the plaintiff did not move for summary judgment on. A defective ladder will likely lead to liability under Section 240(1) and likely violates several provisions of the Industrial Code, which leads to liability under Section 241(6).

PRACTICE NOTE:

TOPICS: Industrial Code regulations and violations, prima facie burden, defective or inadequate safety equipment

PRACTICE NOTE: Labor Law Section 200 does not

apply where one establishes that the alleged “defect” arose from plaintiff’s improper method of performing the work.

TOPICS: Labor Law Section 200, authority of control over work, method of performing work SPRING 2019 

|  17


FOURTH DEPARTMENT

DENNIS V. CERRONE 167 A.D.3d 1475 (4th Dept) (December 21, 2018)

The plaintiff was performing residential framing work on a one-family home when he was injured falling through a hole in a ground-level subfloor that had been created for the installation of basement stairs. The defendant-property owner, the part owner, general superintendent, and vice president of a contracting company, used several of his own employees on the project. The court held that defendant-property owner was entitled to dismissal of the plaintiff’s Labor Law Section 240(1) and Section 240(6) claims under the oneor two-family dwelling exemption, as neither he nor any of his employees directed or controlled the means or methods of plaintiff’s work. The court held that even if a residential property owner acts as his own general contractor, he or she is still entitled to the homeowners’ exemption unless he or she directed or controlled the manner or method of plaintiff’s work.

PRACTICE NOTE:

TOPICS: one- or two-family dwelling exemption, manner and methods, application of Labor Law

18 | Labor Law Update


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Index A

F

P

actual or constructive notice 11

failure to provide protection 11, 15, 16

passageways 13

actual or constructive notice of dangerous conditions 8, 11

fall from ladder 5, 6, 9

prima facie burden 3, 4, 7, 9, 10, 17

actual supervision 14

falling objects 6, 10, 15, 16

prima facie evidence 13

foreseeability 13

proper safety devices 4, 9

foreseeability of hazard 11

proper safety service 12

adequate safety devices 17 agency 16 alteration or repair 3, 4, 5 application of Labor Law 3, 4, 6, 9, 10, 11, 18 application of Section 241(6) 5

authority to supervise 12

protected activity 3, 4, 8, 9, 11, 12

gravity-related risks 3, 4, 5, 6, 16 H

protected class of individual 10 Q

hazardous openings 10

authority of control over work 3, 5, 6, 7, 8, 9, 11, 13, 14, 16, 17 authority or control over work 8

property owner 9

G

homeowner’s exemption 9, 12, 16 I

questions of fact 13 R recalcitrant worker 5, 6

indemnification 11

B

residential projects 12

Industrial Code 13 Industrial Code regulations 5, 6, 8, 10

burden of proof 2, 3, 4, 6, 7, 15

Industrial Code regulations and proximate cause 5

C common-law indemnification 17 common-law negligence 3, 5, 7, 14, 16

Industrial Code regulations and violations 4, 7, 17

construction manager 13

Industrial Code violations 3, 16

construction project 2

integral to the work 13

contractual indemnification 9, 15

investigation 13

contribution 11 contribution and indemnification 12

Labor Law Section 240(1) 2, 15, 16, 17

defective or inadequate equipment 6

Labor Law Section 240(1) liability 16, 17

defective or inadequate protection 9, 12, 15, 16

sole proximate cause 3, 5, 6, 8, 9, 12, 13 sole proximate cause defense 17 sufficiency of proof 12 supervisory control 13 U unsecured ladder 12 V

Labor Law Section 241(6) 2, 13, 16 M

direct and control the work 9

means and methods 16

direction and control 12

method of performing work 17

E

motion for leave tor 10 N need for safety devices 11

elevation-related 6

vicarious liability 16 W

manner and methods 3, 5, 6, 7, 8, 9, 13, 14, 17, 18

demolition 13

elevation-related hazards 10

scope of protections 12

Labor Law Section 200 13, 17

defective equipment 13

elevation-related hazard 8, 9

safety devices 5, 13

supervisory authority 12

Labor Law Section 240 13

elevation and gravity-related hazards 11

S

L

D

defective or inadequate safety equipment 4, 17

routine maintenance 3, 11, 12

O

elevation related risk 15

one-or two-family dwelling exemption 4, 12, 18

expert retention 13

open and obvious 13, 17

Workers’ Compensation Law 9, 11


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Labor Law Update - Spring 2019  

Goldberg Segalla’s Labor Law Update keeps clients informed about significant changes and cases involving New York’s Labor Law.

Labor Law Update - Spring 2019  

Goldberg Segalla’s Labor Law Update keeps clients informed about significant changes and cases involving New York’s Labor Law.