Labor Law Update - Spring 2021

S P R I N G 2 0 21

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

FIRST DEPARTMENT

TOPICS: Labor Law § 240(1), Sole Proximate Cause,

Burden of Proof, Contractual Indemnification KOLAKOWSKI V. 10839 ASSOC.

185 A.D.3d 427 July 2, 2020

The defendants argued the plaintiff’s Labor Law § 240(1) claim should be dismissed because he was a recalcitrant worker and the sole proximate cause of the accident was failing to wear a harness as directed. The defendants sought dismissal of the Labor Law § 200 and common law negligence claims based upon gaps in the plaintiff’s proof of fault. The defendants also sought judgment on their third-party contractual indemnity claim, which was based upon a contract executed three days after the accident. Belatedly, the defendants and the plaintiff both asked the Appellate Division to search the record on appeal and grant judgment on the Labor Law § 241(6) claim. The court held none of the parties were entitled to summary judgment on a § 240(1) claim when there is a question of fact as to the plaintiff’s failure to follow safety instructions and whether such recalcitrance could render him the accident’s sole proximate cause. On the § 200 and negligence claims, the court found that it was insufficient for the defendants to merely point to gaps in the plaintiff’s proof and that they bore the initial burden to present evidence of a site cleaning schedule or proof of when the area had been inspected prior to the accident. The applications for judgment on the § 241(6) claims were denied as improperly made for the first time on appeal, and also because there were questions of fact as to whether the plaintiff was the accident’s sole proximate cause. The court found that the third-party contractual indemnity claim was properly dismissed because there was no evidence that the third-party defendant intended for the post-accident contract to apply retroactively to encompass the accident date.

PRACTICE NOTE: To apply an indemnity agreement to an accident occurring before its execution, there must be evidence of the contracting parties’ intent to have the contract apply retroactively.

4 | Labor Law Update

TOPICS: Labor Law § 240(1), Ladder, Routine Maintenance, Sole Proximate Cause, Contractual Indemnification, General Obligations Law

KEHOE V. 61 BROADWAY OWNER LLC 186 A.D.3d 1143 September 3, 2020

The plaintiff was injured when he fell from a permanently-affixed ladder that vibrated as he ascended from an elevator pit. The Appellate Division found that the permanently-affixed ladder was a “safety device” under Labor Law § 240(1) because the plaintiff was only able to access the work area by ladder, and the ladder was effectively used as a safety device within the meaning of the statute. However, there was a question of fact as to whether the plaintiff had proper protection by the permanentlyaffixed ladder. The court also found that the plaintiff’s work constituted repair, rather than maintenance, because the work took place over a period of weeks to correct the unguarded condition of elevator cables. The court rejected the defense argument that the plaintiff was the sole proximate cause of the accident because there was no evidence that the plaintiff either knew he had to use a harness while on ladders or otherwise disregarded specific instructions to wear one. Moreover, if the ladder was found to have not provided proper protection, then the plaintiff’s failure to wear a harness would only constitute contributory negligence. The property owner was entitled to contractual indemnity from the plaintiff’s employer, an elevator service contractor, based upon the savings clause, “to the fullest extent permitted by law,” and so the provision was not void pursuant to General Obligations Law § 5-322.1. However, the contractual indemnity claim against the elevator modernization company was dismissed because its work previously passed a NYC Department of Buildings inspection, which included an examination of the pit ladders and it received no subsequent complaints about ladders.

Permanently-affixed ladders may be statutory devices under § 240(1) when it is the sole means of access to a work area and used for that purpose. A fall from a permanently-affixed ladder that did not move, shift, or sway presents a question of fact as to whether it provided proper protection. If the provided statutory device failed to provide proper protection then the plaintiff’s failure to avail himself of personal protective equipment will only constitute contributory negligence. Passing a Department of Buildings inspection that enPRACTICE NOTE:

compasses the inspection of a particular item is evidence that the item was not in a hazardous condition as of the inspection date.

TOPICS: Labor Law § 200, Authority to Control

the Work, Unsafe Condition

LANDRON V. WIL-COR REALTY CO. INC.

187 A.D.3d 407 October 1, 2020

The plaintiff was the employee of a trash hauler when he was injured falling to the ground from the top of a tractor trailer, while manually attempting to roll out a tarp to cover trash in the trailer. The plaintiff asserted negligence and Labor Law § 200 claims against the trailer’s owner and the trash processing company that loaded the trailer. Noting that § 200 is not limited to construction activity, the Appellate Division reinstated the plaintiff’s negligence and § 200 claims.

The court found a question of fact as to the trash processing company’s authority to control the work based upon evidence that it both directed the plaintiff how to proceed at the facility and mandated that the trash be covered with the tarp; and it may have overfilled the trailer thereby creating the condition that perhaps caused the injuries. The court also found that the trailer’s owner failed to establish either that its trailer was in proper working order or that it had no knowledge of the unsafe condition.

PRACTICE NOTE: § 200 liability can be imposed

outside of the construction setting. A defendant moving to dismiss negligence and § 200 claims bears the initial burden of proving the absence of a hazardous condition and/or that it did not have notice of the alleged hazardous condition.

TOPICS: Labor Law § 240(1), Ladder

AVILA V. SAINT DAVID’S SCHOOL

187 A.D.3d 460 October 8, 2020

The plaintiff was working as a demolition worker when he was injured when falling debris struck the ladder he was standing on, causing him and the ladder to fall to the ground.

In granting the plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim, the Appellate Division held that the plaintiff did not have to establish that the ladder was defective where the evidence showed that the defendant failed to provide a device to keep the ladder upright while the plaintiff was using it.

FIRST DEPARTMENT

PRACTICE NOTE: The failure to provide any mech-

anism to secure a non-defective ladder to keep it from falling over while being used by the injured worker supports a finding of § 240(1) liability.

TOPICS: Labor Law § 200, Open and Obvious

PRACTICE NOTE: For Labor Law claims arising

from owner-occupied, two-family dwellings that include a commercial rental, the homeowners’ exemption may be applicable if it can be shown that the object of the work exclusively benefitted the residential property owner and had no commercial purpose.

Condition, Experts

MIKENSHINA V. TISHMAN CONSTR. CORP. 187 A.D.3d 546 October 15, 2020

The plaintiff was working as a construction worker when she was injured when her lanyard caught on a scaffold handrail, causing her to fall. The Appellate Division affirmed the dismissal of the common law negligence and Labor Law § 200 claims, finding that testimony and photographs established that the scaffold handrail was open, obvious, and not inherently dangerous. Additionally, the defendants used an expert affidavit to establish that the handrail, which was a prefabricated scaffold component, was consistent with industry custom and practice, and was not a hazardous projection in violation of OSHA regulations.

PRACTICE NOTE: Photographs should be sub-

mitted to the court as compelling evidence of an “open and obvious condition” defense. An expert affidavit should be submitted as persuasive evidence in support of an “industry custom and practice” defense.

TOPICS: Homeowners’ Exemption

OVALLE V. BUCKWALTER 187 A.D.3d 583 October 20, 2020

The plaintiff was a laborer injured in the course of a project to demolish metal exterior stairs to the premises’ second floor and construct a porch at that level. The property was a twofamily brownstone that was partially occupied by the building owner, with the remaining portions consisting of a residential rental and rented medical office. The porch being constructed was to be accessible only by the owner-occupied portion of the building. The court found that the Labor Law’s homeowners’ exemption applied because the purpose of the work was to construct a porch that was only accessible from the defendant owner’s residence and it served no commercial purpose.

should have been provided. It’s also worth noting that the worker’s alleged improper presence at the accident location was insufficient to render his conduct the sole proximate cause of the accident.

TOPICS: Labor Law § 240(1), Sole Proximate Cause TOPICS: Labor Law § 240(1), Labor Law § 200,

Falling Object, Contractual Indemnification HEWITT V. NY 70TH ST. LLC 187 A.D.3d 574 October 20, 2020

The plaintiff was an employee of a scaffolding contractor when he was struck by a metal baluster that dislodged and fell from the building’s third-floor balcony railing. The Appellate Division found that the plaintiff was entitled to summary judgment on his Labor Law § 240(1) claim against the general contractor and subcontractor for failing to provide overhead protection.

The plaintiff’s alleged presence in an area that he was not supposed to be at the time of the accident would only constitute his contributory fault and would not be a defense to the § 240(1) claim. The court also found that the subcontractor, as a statutory agent, had Labor Law § 200 and negligence liability because its employee caused the metal baluster to fall. There was a question of fact as to the general contractor’s § 200 and negligence liability based upon testimony that its superintendent instructed the subcontractor to cut the baluster that subsequently fell, which would support a finding of its supervisory control over the work. The general contractor was found to have been properly granted conditional summary judgment on its contractual indemnity claim against the subcontractor subject to a determination of their respective degrees of negligence. The employer’s motion to dismiss the third-party contractual indemnity claim was properly denied based upon the subcontractor’s testimony that the plaintiff was injured in a location where he was not supposed to be working. Such testimony, if credited, could support a finding that the accident arose from the performance of employer’s work and was caused by its negligent acts and omissions, thereby triggering its duty to indemnify under the terms of its contract.

PRACTICE NOTE: In determining that § 240(1) ap-

plied, the court did not focus upon whether the baluster was an object that required hoisting or securing. Rather, the stated basis for § 240(1) liability was simply that overhead protection

DESCHAINE V. TRICON CONSTR., LLC 187 A.D.3d 599 October 22, 2020

The plaintiff was found entitled to judgment on his Labor Law § 240(1) claim when he fell from a scaffold that lacked side railings and he was not provided with any other protective devices.

Based upon the inadequacy of the scaffold, the court rejected the defense argument that the plaintiff’s pre-existing medical condition was the sole proximate cause of the injuries.

PRACTICE NOTE: Causes of the accident that are

solely attributable to the plaintiff will not be found to have been the sole proximate cause when there is also a defect or deficiency in a statutory protective device that is found to have been a cause of the accident.

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

Labor Law § 241(6), Industrial Code § 23-2.1(a)(2), Permanent Structure SINERA V. BEDFORD-WEBSTER LLC 187 A.D.3d 621 October 22, 2020

The plaintiff was injured when the floor he stood upon collapsed (review of the underlying motion decision shows that the floor was a permanent concrete floor). The court found that there were questions of fact as to whether the floor’s collapse was foreseeable based upon testimony that the floor had cracks, as well as an expert’s finding that a proper inspection would have revealed the condition of the floor and that there was a foreseeable risk of overloading the floor’s capacity resulting in the collapse. For these reasons, the court also found questions of fact as to Labor Law § 241(6) liability based upon Industrial Code § 23-2.1(a) (2), which, inter alia, prohibits the placement of materials on a floor that exceeds the floor’s weight-bearing capacity.

PRACTICE NOTE: § 240(1) liability can be predicated

upon the collapse of a permanent structure where there is evidence that its failure was foreseeable.

SPRING 2021 | 5

FIRST DEPARTMENT

TOPICS: Labor Law § 240(1), Ladder, Burden of Proof

TOPICS: Labor Law § 241(6), Industrial Code § 23-

TOPICS: Labor Law § 241(6), Sole Proximate

KAUFMAN V. CAPITAL ONE BANK (USA) N.A.

SINGH V. MANHATTAN FORD LINCOLN, INC.

Sole Proximate Cause

The plaintiff was pushing a dumpster when the wheel caught on a door saddle, causing him to become injured while attempting to prevent the dumpster from falling. Although the plaintiff testified that he could not say with certainty what caused the accident because he could not see the door saddle, he later submitted an affidavit that was consistent with photographs reflecting that there was nothing else in the vicinity that could have caused the wheel to have become caught. In affirming the denial of the defendants’ motion to dismiss the Labor Law § 241(6) claim, the court found that the plaintiff’s affidavit was not irreconcilable with his deposition testimony and, coupled with photographs, the affidavit drew a reasonable inference that the wheel caught on the door saddle. The court found that a doorway is a “passageway” under Industrial Code § 23-1.7(e)(1), and that that code section applies both to objects that cause a worker to slip or trip, and also to obstructions that cause an object being pushed by the worker to tip over and injure the plaintiff. The court also determined that Industrial Code § 23-1.7(e) (2), which applies to injuries caused by “sharp projections” in working areas, applied to the accident because the term “sharp” means objects that are “clearly defined or distinct.”

RIVAS V. NESTLE REALTY HOLDING CORP.

PRACTICE NOTE: Although a plaintiff may testify

The plaintiff slipped on debris on a construction site. The First Department modified the court’s denial of the plaintiff’s motion for summary judgment as to his Labor Law § 200 claim against defendant, Manhattan Ford Lincoln, Inc. (MFL) and reinstated claims that MFL failed to establish it lacked constructive notice of the debris that the plaintiff testified had been accumulating in the accident location for hours prior to the accident. The First Department also reinstated the plaintiff’s Labor Law § 241(6) claim under Industrial Code 23-1.7(e)(2) against all defendants on whether the plaintiff was engaged in the same debris removal work as the workers, who were throwing and pouring it from the sidewalk bridge and sweeping it from the sidewalk below, which ultimately caused debris to accumulate where he slipped. The First Department held that there were “triable issues of fact as to whether the debris on the sidewalk on which plaintiff slipped was integral to his work.”

It affirmed the court’s granting of MFL’s motion for summary judgment dismissing the plaintiff’s § 241(6) claim under Industrial Code 23-1.7(e)(1).

The First Department also searched the record and granted co-defendant contractor summary judgment, dismissing the plaintiff’s § 241(6) claim under Industrial Code 23-1.7(e)(1) as inapplicable on the grounds that the plaintiff’s accident did not occur in a passageway, but rather an open, outdoor area.

ROMANO V. ONE CITY BLOCK LLC 187 A.D.3d 653 October 27, 2020

The plaintiff testified that he was working on an unsecured ladder when he reached up for a conduit while standing on the fourth rung when the ladder shifted and moved, causing him to fall.

The First Department affirmed the trial court’s denial of the plaintiff’s motion for summary judgment as to his claim under Labor Law § 240(1) against defendants on the grounds that the accident report completed by the plaintiff’s foreman on the date of the accident and the foreman’s testimony contained a summary of conversation with the plaintiff right after the accident that contradicted the plaintiff’s testimony. The First Department held that according to the accident report, the plaintiff stated that “[w]hen coming down the ladder [plaintiff] slipped off of the step, falling to the ground.” The First Department further held that issues of fact and credibility existed as to how the accident occurred.

PRACTICE NOTE: The accident report and depo-

sition testimony contradicting the plaintiff’s testimony regarding how the accident occurred was sufficient to raise an issue of fact precluding summary judgment under § 240(1).

TOPICS: Labor Law § 240(1), Access to Work Area,

188 A.D.3d 430 November 5, 2020

The plaintiff fell while using a recently constructed, but unfinished stairway when the top step detached. The plaintiff testified that this stairway was the only means of access to his work area, but the defendants argued that he’d used a ladder on prior occasions. The court found that the plaintiff met his burden of showing that the defendants violated Labor Law § 240(1) by failing to provide him with a proper elevationrelated safety device. The defendants failed to submit sufficient evidence that the previouslyused ladder or other safety device was available or that they would have been adequate for the job. Based upon the failure of the stairway, the plaintiff’s conduct cannot have been the sole proximate cause of the accident.

PRACTICE NOTE: The plaintiff’s conduct cannot

be found to have been the sole proximate cause of the accident where the failure of a statutory safety device brought about the injury.

6 | Labor Law Update

1.7(e)(1) & (2), Burden of Proof 188 A.D.3d 461 November 10, 2020

to not knowing the cause of his accident, his subsequent affidavit positing as to the accident’s cause will not be deemed inconsistent if based upon reasonable inferences. Industrial Code § 23-1.7(e)(1) applies to objects that can cause the worker to slip or trip, as well as to objects that can snag items that the worker is pushing. A “sharp projection” under Industrial Code § 23-1.7(e)(2) refers to objects that are “clearly defined or distinct” and not merely objects that can puncture or cut.

Cause

188 A.D.3d 506 November 12, 2020

PRACTICE NOTE: The debris on which a plaintiff

slips on a construction site must be integral to his/her work to qualify as “debris” under 12 NYCRR 23-1.7(e)(2).

TOPICS: Labor Law § 240(1), Means of Ingress

SUNUN V. KLEIN 188 A.D.3d 507 November 12, 2020

The plaintiff testified that he stepped on an area of ground that had been excavated to create a trench and then backfilled with soil during an earlier phase of a construction project. A coworker, who was present at the scene, corroborated that after the plaintiff was extracted from the hole, there was mud present on his leg that rose above the level of his knee. The plaintiff’s expert opined that the trench had been filled

FIRST DEPARTMENT

with insufficiently dense or compactable soil, and the risk that such soil would become soft and would settle was exacerbated by rainfall on three days, including the night before the accident. The First Department reversed the court’s denial of the plaintiff’s motion for summary judgment under his Labor Law § 240(1) claim against the defendants and held that it was undisputed that no safety devices were provided to the plaintiff to protect him against the gravity-related risk of descending a significant distance into the trench. The court analogized the elevation differential between the ground level and lower level to which the plaintiff’s foot sank to the risk that a worker standing on a platform on a body of water would fall into the water. The court did not address the plaintiff’s remaining allegations under Labor Law § 241(6).

The First Department affirmed the court’s denial of defendant, Fountainhead’s, motion for summary judgment seeking dismissal of the plaintiff’s claims under § 200 on the grounds that there were issues of fact as to whether a reasonable inspection of the backfilled trench would have revealed the hazardous condition and whether the defendant conducted such an inspection. The First Department also reversed the court’s denial of Fountainhead’s motion for summary judgment on its cross-claims and awarded conditional contractual indemnification against the third-party defendant, pursuant to the applicable indemnification provision of the subcontract, pending a determination of whether the accident was caused by Fountainhead’s negligence.

PRACTICE NOTE: The defendants’ failure to pro-

vide the plaintiff with safety devices when descending into excavated trench at construction site is prima facie evidence establishing a claim under Labor Law § 240(1).

the plaintiff’s motion for summary judgment as to his Labor Law § 241(6) claim under 12 NYCRR 23-3.3(k) on the grounds that there was no evidence that there was demolition in progress, that the pile of debris resulted from demolition, and the pile did not consist of “materials” being “stored.” Furthermore, the First Department reversed the court’s denial of the plaintiff’s motion for summary judgment as to his § 241(6) claim under 12 NYCRR 23-1.7(e)(2) and held that “the fact that the injured plaintiff tripped not on the debris itself, but on an electrical box concealed by the debris does not alter the fact that the debris was a cause of the accident.”

the bags were in place until the installation of permanent coverings. It was undisputed that, without the bags, the holes would be hidden and there were no warning signs posted or warnings given to the plaintiff or his co-workers regarding holes under the felt sheet. The First Department affirmed the court’s granting of the plaintiff’s motion for summary judgment to his Labor Law § 200 claim on the grounds that: (1) the defendant was a statutory agent who had been delegated the authority to control the activity which brought about the injury; and (2) the defendant created the condition that resulted in the plaintiff’s claimed injuries.

PRACTICE NOTE: The electrical box concealed

PRACTICE NOTE: The defendant’s creation of the

beneath debris on a construction site qualifies as “debris” under 12 NYCRR 23-1.7(e)(2).

TOPICS: Non-delegable Duty, Notice of Claim,

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

MATTER OF BENTO V. DORMITORY AUTH. OF THE STATE OF N.Y. 188 A.D.3d 516 November 17, 2020

The court reversed the court’s decision in granting petitioner’s motion to file a late notice of claim. The court reasoned that it is well settled that as an out-of-possession title owner does not bear liability for personal injuries suffered at CUNY buildings. The court further reasoned that because the Dormitory Authority surrenders all control and possession to CUNY once a building is completed, it is not subjected to non-delegable duties that owners may have, like providing safe working conditions pursuant to Labor Law §§ 240(1) and 241(6).

PRACTICE NOTE: This case highlights how courts

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

Sole Proximate Cause

will not hold an out-of-possession title owner liable for personal injuries suffered at buildings not under its control.

SANDE V. TRINITY CTR. LLC 188 A.D.3d 505 November 12, 2020

The plaintiff tripped and fell on an electrical box concealed by debris on a construction site. The First Department affirmed the court’s denial of the plaintiff’s motion for summary judgment to his Labor Law § 200 claim on the ground that the plaintiff failed to make a prima facie showing that the defendants were on notice of the pile of debris that caused the plaintiff’s accident. The First Department also affirmed the court’s denial of

alleged condition is prima facie evidence, establishing a claim under § 200. The defendant’s authority to control the activity and bringing on the injury establishes prima facie “statutory agent” status under § 200.

TOPICS: Labor Law § 200, Statutory Agent

TOPICS: Labor Law § 200

ALBUQUERQUE V. CITY OF NEW YORK 188 A.D.3D 515 November 17, 2020

The plaintiff was struck by an unsecured bracing timber lowered into a trench where the defendants’ contractor was installing a water main to brace a section of pipe. The First Department affirmed the court’s granting of the plaintiff’s motion for summary judgment to his Labor Law § 240(1) claim against the defendants on the grounds that the bracing timber was a “load that required securing,” regardless of the fact that it was deliberately lowered down. The First Department held that the plaintiff was not standing in a drop zone and was not struck by an object or debris for which a securing device was “not necessary or even expected.”

PRACTICE NOTE: Bracing timber deliberately low-

ered into a trench where the defendants’ contractor was installing water main is a load that requires securing and is prima facie evidence in establishing a claim under § 240(1).

WENK V. EXTELL W. 57TH ST. LLC 188 A.D.3d 550 November 17, 2020

The plaintiff fell into a drain hole on a construction site that was hidden under a black-felt sheet, which was required to be filled with bags of limestone until permanent coverings could be installed. The defendant’s foreman testified that he was responsible for ensuring that

TOPICS: Labor Law § 240(1), Ladder

CABRERA V. 65 PARK W. REALTY, LLC 188 A, D.3d 520 November 17, 2020

The plaintiff was on an unsecured ladder on a construction site that slipped out from under SPRING 2021 | 7

FIRST DEPARTMENT

him, causing paint to splatter on the floor. The First Department reversed the court’s denial of the plaintiff’s motion for summary judgment to his Labor Law § 240(1) claim against the defendant on the grounds that the plaintiff’s unrebutted testimony, that the unsecured ladder where he was working slipped out from under him, established his prima facie entitlement to summary judgment. The First Department held that the defendants failed to raise an issue of fact in that: (1) the plaintiff was not required to show that the ladder was defective; (2) there was no evidence that the plaintiff lost his footing or his balance; (3) the expert’s conclusion that he would have observed paint on the floor two years later was mere speculation; and (4) while unavailing, the issue regarding whether the plaintiff was acting outside of the scope of his employment was improperly raised for the first time on appeal.

PRACTICE NOTE: Unrebutted deposition testi-

mony that unsecured ladder slipped out from under the plaintiff is prima facie evidence when establishing a claim under § 240(1).

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

SACKO V. NEW YORK CITY HOUS. AUTH. 188 A.D.3d 546 November 17, 2020

The plaintiff fell off a ladder when the ladder suddenly shifted and collapsed. The court held that the plaintiff made a prima facie showing that his injuries were proximately caused by a violation of Labor Law § 240(1) as the plaintiff’s testimony established that the defendants failed to provide a safety device that would ensure that the ladder he was instructed to use would remain upright while he performed his work. The defendants failed to raise an issue of fact as to whether the plaintiff’s conduct was the sole proximate cause of his injuries. The defendants did not present any evidence to show that appropriate safety equipment was available to the plaintiff, and that the plaintiff then unreasonably chose not to use it. The court reasoned that the plaintiff’s alleged failure to fully secure the ladder before he used it was, at most, comparative negligence and was not sufficient to defeat the plaintiff’s summary judgment motion.

PRACTICE NOTE: If there is unrefuted testimony,

summary judgment may be awarded to a plaintiff even when the plaintiff is the sole witness to an accident.

8 | Labor Law Update

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

GALLEGOS V. BRIDGE LAND VESTRY, LLC 188 A.D.3d 566 November 19, 2020

The plaintiff alleged a violation of Labor Law § 240(1) for personal injuries he allegedly sustained when a stone slab, which weighed more than half a ton and was being raised by a chain hoist or remote-controlled crane, came loose from the straps securing it and fell on his legs.

The court held that because the sling proved inadequate to secure the slab against falling, the statue was violated and summary judgment was warranted. The defendants argued that because the hoist and sling had sufficient load capacity to hoist the slab and were not broken or defective, the plaintiff was required to demonstrate how the slab became unsecured. The court found this to be unavailing. The court reasoned that the failure by the plaintiff to properly secure the slab with the straps would at most be comparative negligence, which is not a defense to § 240(1). The court further reasoned that any failure by the plaintiff’s co-worker to properly secure the slab with the straps was not so extraordinary or removed from the defendants’ duty to provide an adequate safety device so as to constitute a superseding, intervening event breaking the chain of causation.

PRACTICE NOTE: § 240(1) imposes on owners,

general contractors, and their agents a nondelegable duty to provide safety devices to protect against elevation-related hazards inherent in construction. Courts will find them liable of failing to provide a safety device, despite one being provided, if the device itself or the manner in which the device was used fails to provide proper protection.

TOPICS: Labor Law § 240(1), Enumerated Activity

MEJIA V. UNIQUE DEV. HOLDING CORP. 188 A.D.3d 574 November 19, 2020

The plaintiff sustained injuries when a load of lumber fell from a pallet that was being hoisted onto the roof of a newly constructed five-story apartment building. While the plaintiff was signaling to the boom truck driver where to lower the load, the metal bands securing the lumber “burst,” causing the lumber to fall, and a piece to rebound off the floor and strike the plaintiff. The First Department affirmed the court’s granting of plaintiff’s motion for summary judgment as to his claim under Labor Law § 240(1) on the

grounds that the plaintiff was engaged in an activity enumerated under § 240(1) at the time of the accident, specifically receiving the delivery of construction material, which the court held was “ancillary to” the construction work. The First Department also reinstated the plaintiff’s common law negligence claim and defendant property owner, Montrose’s, cross-claims for common law contribution and indemnification against defendant lumber supplier, Certified, on the grounds that there were issues of fact as to whether Certified was negligent in securing or unloading the lumber.

PRACTICE NOTE: Receiving a delivery of con-

struction material is an activity ancillary to construction work and is an activity enumerated under Labor Law § 240(1).

TOPICS: Labor Law § 241(6), Proximate Cause

PINA V. ARTHUR CLINTON HOUS. DEV. FUND CORP. 188 A.D.3d 614 November 24, 2020

The plaintiff testified that he slipped and fell at a worksite and provided conflicting accounts to the Workers’ Compensation Board as to what caused the accident and resulting injury. Two witnesses also testified that the plaintiff told them that he struck himself in the face with plywood while prying it up and the plywood “went back” on him. Moreover, the plaintiff provided inconsistent accounts of how the accident occurred to his post-accident medical providers.

The First Department affirmed the court’s denial of the plaintiff’s motion for summary judgment on the grounds that the plaintiff’s own conflicting accounts of what caused the accident and resulting injury were sufficient to raise a triable issue of fact as to how the accident occurred and whether a slip and fall on a wet surface was a proximate cause of the accident.

PRACTICE NOTE: The plaintiff’s conflicting testi-

mony and accounts regarding how the accident occurred were sufficient to raise issue of fact precluding summary judgment under Labor Law § 241(6).

FIRST DEPARTMENT

TOPICS: Labor Law § 240(1), Burden of Proof

PADILLA V. ABSOLUTE REALTY, INC. 188 A.D.3d 608 November 24, 2020

The plaintiff was injured while engaged in roofing work at an elevation. The First Department affirmed the court’s granting of the plaintiff’s motion for summary judgment as to his claim under Labor Law § 240(1) on the grounds that there was no dispute that the plaintiff was injured while engaged in roofing work at an elevation and was not supplied with any safety devices, which was a proximate cause of the accident. Moreover, the First Department held that the plaintiff could not have been the proximate cause of the accident and any conflicting testimony as to the type of work the plaintiff was performing and the manner in which the accident occurred was immaterial in light of the absence of statutorily required safety equipment. The First Department also reversed the court’s denial of defendant site owner, Absolute’s, motion for summary judgment and dismissed the plaintiff’s claims under Labor Law § 200 on the grounds that the evidence failed to establish that Absolute exercised control over the manner and means of the plaintiff’s work.

The First Department reversed the court’s denial of Absolute’s motion for summary judgment on its claim for common law indemnification against contractor, Fiedler, on the grounds that there were no protective devices on the roof and Fiedler’s supervisors, who visited the site each day, did not exercise their authority to order that the situation be remedied.

PRACTICE NOTE: The unrebutted evidence that

the plaintiff was engaged in roofing work at an elevation without being supplied with any safety devices is prima facie evidence establishing a claim under § 240(1).

made a prima facie showing that his accident was proximately caused by the inadequacy of the safety devices he was using or the absence of other safety devices necessary to protect him from the risks posed by working at a significant elevation above the floor. Defendants did not raise an issues of fact by pointing to evidence that the plaintiff checked the scaffold before using it and did not find it to be defective, and that the scaffold had safety railings on all four sides, or by asserting that no other devices, such as a safety harness or safety line would have prevented this fall. Defendants failed to raise an issue of fact as to whether the plaintiff knew that he was supposed to use a harness or safety line or that he disregarded specific instructions to do so. The plaintiff’s foreman’s testimony that weekly toolbox meetings addressed a different safety topic each week was insufficient to raise a triable issue of fact because the court reasoned that the foreman’s mention of “wearing harnesses” among several other examples of such topics, failed to clarify whether a meeting on harnesses was conducted before the accident, what was said about harnesses at any meeting, and whether plaintiff attended such a meeting. The plaintiff’s failure to turn off the power supply before working with a live wire was considered by the court to be comparative negligence, at most, which could not be a defense to the Labor Law § 240(1) claim.

PRACTICE NOTE: A weekly toolbox meeting ad-

dressing different safety topics or a foreman’s mention of wearing a harness may be deemed insufficient to raise an issue of fact as to whether a plaintiff knows that they were supposed to use a safety device or that a plaintiff disregarded specific instructions to do so.

TOPICS: Labor Law § 240(1), Supervision and

Control TOPICS: Labor Law § 240(1), Sole Proximate

Cause, Safety Device

GOUNDAN V. PAV-LAK CONTR. INC. 188 A.D.3d 596 November 24, 2020

The plaintiff was attempting to install an exit sign in a building under construction while standing about 12 feet above the floor on a scaffold platform, without using any safety harness or safety lines, when he touched a live wire to a component of the sign, which caused him to receive an electrical shock and then fall off the scaffold and onto the floor. The plaintiff

VALDEZ V. CITY OF NEW YORK 2020 N.Y. App. Div. LEXIS 7327 December 1, 2020

The plaintiff testified that he was injured while pointing bricks at the defendants’ school when the inverted milk crate on which he was standing atop planks of a scaffold shifted unexpectedly, causing them to fall backward and strike his head on a bar of the scaffold. The court held that this testimony established prima facie that the plaintiff’s pointing work exposed him to an elevation-related risk against which defendants failed to provide him with proper protection as required by Labor Law § 240(1). Defendants

failed to raise an issue of fact as to whether the plaintiff was a recalcitrant worker and therefore the sole proximate cause of his accident because he failed to use a ladder or the scaffolds bicycle to raise the scaffold to an appropriate height. Defendants submitted no evidence that the plaintiff was ever specifically instructed to use either of those devices and refused to do so instead of standing atop an inverted milk crate.

The court reasoned that even if the plaintiff was the only witness to his accident, he would still be entitled to summary judgment since nothing in the record controverted his account of the accident or called his credibility into question.

PRACTICE NOTE: Courts will grant summary judg-

ment in Labor Law § 240(1) cases even when a plaintiff is the sole witness so long as there is nothing in the record to controvert the plaintiff’s account of the accident and the record is void of any reason to call the plaintiff’s credibility into question.

TOPICS: Labor Law § 200, General Supervisory

Authority

MENDRISKI V. NEW YORK CITY HOUS. AUTH. 2020 N.Y. App. Div. LEXIS 7339 (First Department) December 1, 2020

The plaintiff was working on a ladder, when his supervisor pulled on a vacuum extension cord, which had wrapped around the foot of the ladder, yanking the ladder from underneath him. The plaintiff was performing renovation work on property owned by the Housing Authority, which had retained the plaintiff’s employer, nonparty Rockmore Contracting Corp., as the general contractor, and defendant URS Corporation as the construction manager. The court affirmed the trial court’s decision to grant summary judgment to URS as to the Labor Law § 200 claim. The contract between URS and the Housing Authority expressly provided that URS was not responsible for the means and methods of Rockmore’s work. URS’s project superintendent testified that URS was responsible for overseeing the general construction to make sure it was built per plans and specifications, on schedule, and on budget. The record showed that URS performed daily inspections of the work, including that of Rockmore, and had authority to stop work for safety reasons.

URS did not have any obligation regarding the methods of the work being performed. URS did not supervise or instruct Rockmore employees on how to perform their work. The court held that URS had only general supervisory authorSPRING 2021 | 9

FIRST DEPARTMENT

ity over the worksite, and did not control the manner in which the injury-producing work was being performed.

PRACTICE NOTE: In cases wherein a § 200 cause

of action is asserted, courts will grant summary judgment to a construction manager if the construction manager provides only general supervisory authority over the worksite and where the construction manager does not control the manner in which the injuryproducing work is being performed.

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

Industrial Code § 23-1.16(b), Safety Device STIGALL V. STATE OF NEW YORK 189 A.D.3d 469 (1st Dept. 2020) December 3, 2020

The claimant was working on an I-beam during renovation work on the Major Deegan Expressway, owned by the state of New York, when he tripped on a surveyor’s retractable lanyard and fell from the beam. The claimant’s lanyard was attached to a safety cable above the surface of the beam. He alleged that his injuries were caused by the safety cable being positioned too low, which prevented the lanyard from properly deploying, thus causing his foot to strike the deck below. The court ruled that the claimant was entitled to summary judgment based upon Labor Law § 240(1) because the safety devices provided were inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity. In coming to its decision the court looked to the fact that claimant’s employer’s site safety manager admitted that claimant was not provided adequate protection because: 1) if an ironworker was tied off to the safety cable, he would not strike the deck below; and 2) if he knew a worker was wearing the same type of lanyard that the claimant was wearing and could strike the deck below, he would redesign the lanyard or provide a different piece of equipment. The court further stated that the fact that claimant sustained whiplash injuries to his neck and back also demonstrated the lack of adequate protection. Finally, the court awarded the claimant summary judgment pursuant to a Labor Law § 241(6) cause of action premised on Industrial Code § 231.16(b), which requires safety devices to be “so arranged that if the user should fall such fall shall not exceed five feet.”

PRACTICE NOTE: An admission by a plaintiff’s site

safety manager that a fall from a height would not have occurred if the plaintiff was properly tied off is sufficient to impute liability under § 240(1).

10 | Labor Law Update

TOPICS: Labor Law § 240(1), Burden of Proof

GUITY V. 400 GREAT NECK RD. REALTY, LLC 2020 N.Y. App. Div. LEXIS 7468 December 3, 2020

The plaintiff was injured while performing demolition work at defendant’s premises, when he fell through a partially collapsed roof, and claimed that he was not provided with proper safety equipment to protect him against the elevation-related risk. In opposition, defendant failed to raise a triable issue of fact. Defendants proffered to the court an unsigned, unverified letter, which purported to set forth a contradictory account of how the accident occurred. The court held that the letter was inadmissible and that defendant failed to raise a triable issue of fact. Partial summary judgment was granted to the plaintiff on the issue of liability on his Labor Law § 240(1) claim.

PRACTICE NOTE: This case highlights the impor-

tance of proffering admissible evidence to the court to raise a triable issue of fact to defeat a summary judgment motion on a § 240(1).

TOPICS: Labor Law § 240(1), Expert Opinion,

Safety Device

CIBOROWSKI V. 228 THOMPSON REALTY, LLC 2020 N.Y. App. Div. LEXIS 7492 December 3, 2020

The plaintiff testified that he was injured when the ladder he was standing on to paint a wall wobbled, and caused him to lose his balance and fall. In opposition, defendant failed to raise an issue of fact as to whether the plaintiff slipped or whether his own actions caused the ladder to move. The court held that there was no evidentiary basis for the contentions raised by the defendant and granted summary judgment on the plaintiff’s Labor Law § 240(1) claim.

The court further held that the opinion by the defendant’s expert who never examined the ladder, was unsupported and speculative.

PRACTICE NOTE: In considering an expert to pro-

vide an opinion in a case involving a § 240(1) claim, ensure that the expert retained will be able to adequately opine on the adequacy of the safety device under § 240(1) after examining and inspecting the subject safety device.

TOPICS: Industrial Code 12 NYCRR § 23-1.7(e)(1),

Labor Law § 241(6), Labor Law § 200

TRINIDAD V. TURNER CONSTR. CO. 2020 N.Y. App. Div. LEXIS 7689 December 15, 2020

The plaintiff testified that he was pushing a container of cinderblocks down a hallway when the front wheel of the container rolled over a piece of plywood covering a three-inch-wide gap in the floor, and the plywood broke. The wheel fell into the gap, and the container tipped forward, spilling its contents and propelling him into the air, head over heels past the container onto his back on the spilled contents on the floor. The court reasoned that Industrial Code 12 NYCRR § 23-1.7(e)(1) was applicable to these facts and that defendant failed to show that it would be prejudiced by an amendment of the bill of particulars to assert a violation of this provision. In view of the absence of prejudice to the defendant, the plaintiff’s motion to amend his bill of particulars to assert a violation of Industrial Code 12 NYCRR § 23-1.7(e)(1) was granted. The plaintiff was not required to explain his 3.5-year delay in bringing the motion. The court reasoned that an inadequately protected gap in the floor of a passageway at a construction site that causes a container, dumpster, or the like to become stuck or otherwise lose its balance and trip, slip, or fall violates 12 NYCRR § 23-1.7(e) (1), and can serve as a predicate for a Labor Law § 241(6) claim. The defendant failed to establish prima facie that it neither created not had notice of the dangerous condition of the hallway floor from which plaintiff’s claims arose. The court held that defendant failed to proffer evidence that the Labor Law § 200 and commonlaw negligence claims should be dismissed.

The testimony of defendant’s superintendent that he was unaware of any previous accidents or complaints concerning the area in which the plaintiff’s accident occurred presented a conflict with the plaintiff’s testimony that there had been a similar accident in that location. The defendant did not submit any evidence to show when the site had last been inspected before the accident.

PRACTICE NOTE: It is critical that contractors

keep adequate records of inspections at the construction site to show when the site has been inspected. If a gap in the floor of a passageway at a construction site is noted, it should be reflected on the inspection report and promptly remedied.

FIRST DEPARTMENT

TOPICS: Labor Law § 241(6), Industrial Code § 23-

1.7(e)(2), Integral to the Work

RUDNITSKY V. MACY’S REAL ESTATE, LLC 189 A.D.3d 490 December 8, 2020

The plaintiff sustained personal injuries following a trip over a two-by-four piece of lumbar wrapped in orange construction netting at the top of a staircase that he was approaching while working on the renovation of a Macy’s department store. The court reversed the lower court and denied the plaintiff’s motion for summary judgment pursuant to Labor Law § 241(6). The motion was premised on an alleged violation of Industrial Code § 23-1.7(e)(2), which requires work areas to be kept free of debris, scattered tools, and materials “insofar as may be consistent with the work being performed.” The court stated that this section of the industrial code is not violated when the condition that caused the trip or slip is integral to the work being performed. The staircase that the plaintiff was approaching at the time of the accident was installed by other trades; was not opened for use until days after the accident; had not been completed at the time of the accident; had a barricade in place around three sides of the opening of the floor; and had a worker working at the top of the stairs where the barricade was removed.

The court held that triable issues of fact existed as to whether the two-by-four was part of a barricade blocking the staircase opening where the plaintiff tripped, and whether it was integral to the work, even if the barricade was pulled back or removed from the front of the stairs.

PRACTICE NOTE: There is no violation of Industri-

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

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

Sole Proximate Cause

GARCES V. WINDSOR PLAZA, LLC 189 A.D.3d 539 December 15, 2020

The plaintiff sustained personal injuries after a fall from a metal A-frame ladder that was shaking, leaning unevenly, and missing a rubber protective foot. He testified that he complained to his supervisor, but his supervisor instructed him to continue use of the ladder. In granting the plaintiff’s motion for summary judgment pursuant to Labor Law § 240(1), the court held that the defendant failed to demonstrate that

the plaintiff knew he was expected to use another ladder on site, and that he chose not to use it for no good reason. Thus, the defendant was unable to show that plaintiff’s failure to use another ladder was the sole proximate cause of his injury. The plaintiff was an employee of one of the defendant’s subcontractors. The court found this defendant liable under § 240(1) due to its authority to control the activity that brought about the injury, notwithstanding whether or not such authority was used. However, the Labor Law § 200 claims were dismissed against this defendant as it did not exercise supervision or control over the work, and the plaintiff was directed by his supervisor.

PRACTICE NOTE: Liability will not be imposed un-

der § 240(1) if a plaintiff is expected to use an alternative tool or safety device, and fails to use such tool without good reason for the failure.

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

§ 23.1.7(e)(1),

JONES V. NEW YORK PRESBYT. HOSP. 189 A.D.3d 542 December 15, 2020

The court found that questions of fact exist sufficient to defeat summary judgment pursuant to Labor Law § 241(6) where the location of the plaintiff’s accident was the type contemplated

by Industrial Code § 23.1.7(e)(1), and the object alleged to have caused the accident was an integral part of the work. Industrial Code § 23.1.7(e)(1) regulates tripping hazards and requires passageways to be free from dirt, debris, obstructions, or conditions which could cause tripping. It also requires working areas, including floors, platforms, and areas where persons work or pass to be free from accumulation of dirt, debris, and scattered tools.

PRACTICE NOTE: Summary judgment is inappro-

priate where there are issues of fact as to whether the object alleged to have caused the accident was integral to the work performed and the location of the accident was not the type enumerated by Industrial Code § 23.1.7(e)(1).

TOPICS: Labor Law § 200, Means and Methods,

Supervision and Control, Common Law Negligence TSONGAS V. APEX CONSTR./MASONRY CORP. 133 N.Y.S.3d 809 December 15, 2020

The plaintiff, an employee of the general contractor, was injured when he fell into a hole, made for the foundation of a deck and dug by a subcontractor’s employee, during renovations of a residential premises. Since the plaintiff’s accident arose from the means and methods of the subcontractor’s work, not a defective condition on the premises, the dispositive issue was whether the homeowner defendants (who lived offsite during renovations) had authority to exercise supervisory control over the injury-producing work. The court answered this question in the negative, and found that homeowner defendants were not liable to plaintiff under Labor Law § 200 and common law negligence claims.

PRACTICE NOTE: When considering means and

methods cases under § 200, you must consider whether the defendant had authority to exercise supervisory control over the injuryproducing work.

TOPICS: Labor Law § 240(1), Cleaning,

Enumerated Activity, Safety Device IXCOY V. PAVLOU 133 N.Y.S.3d 819 December 15, 2020

The plaintiff was injured when, while cleaning an exterior exhaust fan on the unsecured, angled roof of a commercial premise, without any safety device, he slipped on ice which had formed on the rooftop, and fell approximately 12 feet to the ground. The work the plaintiff and his coworker were engaged in required the use of a rope, pressure hose, pistol gun, and chemicals, and prior to the accident, the plaintiff had received training as to the proper cleaning procedure. The court held that the plaintiff’s work constituted “cleaning” within the meaning of Labor Law § 240(1). There was no dispute that the plaintiff was not supplied any safety devices while working at an elevation, which was a proximate cause of his injuries. The court granted the plaintiff’s motion for partial summary judgment on the issue of liability on the § 240(1) claim.

PRACTICE NOTE: Routine cleaning does not fall

within the ambit of § 240(1) and courts will analyze the specific facts before it in order to determine whether the cleaning was routine or whether it requires specialized training and equipment.

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FIRST DEPARTMENT

TOPICS: General Foreman, Labor Law § 200,

TOPICS: Collateral Estoppel, Indemnification,

TOPICS: Labor Law § 241(6), Industrial Code § 23-

VALLE V. PORT AUTHORITY OF N.Y. & N.J.

ONE BRYANT PART V. PERMASTEELISA CLADDING TECH., LTD

POTENZO V. CITY OF NEW YORK

Labor Law § 240(1), Sole Proximate Cause NY Slip Op 07685 December 17, 2020

The plaintiff, a general foreman of a subcontractor at a construction site, was injured when a stack of cement boards fell off of a pallet jack on a lumber truck after the wood skids beneath the boards broke. In his capacity as foreman, the plaintiff provided instructions regarding how the boards were stacked, examined the route of travel the day before the accident, inspected the load when it arrived at the worksite, and ordered his workers to unload the truck by specific means. The plaintiff’s status as general foreman gave him decision making authority beyond that of the average workman.

Defendants posited numerous other causes of the accident, including improper loading of the truck and excessive speed of the truck driver. There was also a dispute as to whether the plaintiff was able to use a street-level hoist, rather than a truck. In denying summary judgment to the plaintiff pursuant to Labor Law § 240(1), the court held that it was for the jury to consider the numerous, disputed events which gave rise to the accident, and decide which was the proximate cause of the accident.

The court further stated that the plaintiff failed to conclusively demonstrate that the accident was proximately caused by the defendants’ failure to provide proper protective devices. In denying summary judgment for defendants, the court held that they failed to demonstrate that the plaintiff was the sole proximate cause of the accident. The cement boards atop the pallet jack did not fall because of a deficiency in the pallet jack, but because the wood skids underneath the boards broke. The plaintiff was not granted summary judgment pursuant to Labor Law § 200 because there was a dispute as to whether the defendants directed that deliveries be made directly to the subbasement level and then lowered by hoist, or because of a dangerous condition at the premises.

PRACTICE NOTE: Summary judgment pursuant

to Labor Law § 240(1) is inappropriate where a plaintiff possesses decision making authority beyond that of the average workman, and there are numerous disputed events giving rise to an accident such that it remains an issue of fact for the jury as to whether the plaintiff or defendant is the sole proximate cause of the accident.

12 | Labor Law Update

Contribution

189 A.D.3d 584 December 17, 2020

The plaintiffs commenced an action against the defendants for contractual and common law indemnification and contribution. This action was severed from the underlying action before issue was joined, the defendants were not parties in the underlying trial, and the jury was not instruction on apportionment of negligence to nonparties. Under these circumstances, the court held that collateral estoppel does not bar a plaintiff from seeking indemnification and contribution where the issue of defendants’ and their subcontractor’s negligence was not raised, decided, and material to the underlying personal injury action of the subcontractor’s employees against the plaintiffs. The court further held that the contractual indemnification claim should not have been dismissed as the defendants agreed to indemnify the plaintiffs for damages related to claims for physical injury so long as they or their subcontractors were negligent. It was immaterial that the defendants lacked supervisory control of the injured employee’s work, because the injuries arose from the condition of the workplace, and not the method used in performing the work. The court determined that the contractual indemnification provision did not violate public policy as it precluded plaintiffs’ recovery of damages that were caused by their own negligence. The court also declined to dismiss the common-law contribution claim because the defendants agreed, via contract, to ensure the safety of its subcontractor’s employees and assign a safety representative to remedy dangerous conditions. The court dismissed the common-law indemnification claim because the plaintiffs were unable to demonstrate that they were held vicariously liable without proof of any negligence or actual supervision.

PRACTICE NOTE: A lack of supervisory control

over an injured employees work is immaterial to a claim for contractual indemnification where the injuries arose from the condition of the workplace, rather than the method of work.

1.7(d), Walkway

2020 NY Slip Op 08013 December 20, 2020

The plaintiff slipped while walking within fenced-in area from a guard booth to his jobsite at a construction location that was not shoveled. The superintendent for the defendant construction corporation testified that there was an unpaved path between the booth and worksite entrance, that it was one of two entrances to the worksite, that it was a path workers generally took, and that it was an area that should be kept free of slippery conditions including snow and ice. The defendant’s superintendent also testified that he advised the super to clear the walkway of ice and snow. The court awarded the plaintiff summary judgment pursuant to Labor Law § 241(6). The court stated that the walkway was covered by the meaning of Industrial Code § 23-1.7(d), because the accident occurred in an outdoor area.

PRACTICE NOTE: A path traveled by workers at

a worksite, that serves as an entrance, is generally used by workers, and should have been kept clear of snow and ice qualifies as a walkway within the meaning of Industrial Code § 231.7(d) for the purposes of determining liability pursuant to § 241(6).

TOPICS: Labor Law § 240(1), Gravity-Related

Occurrence, Safety Device

FRANCO V. 1221 AVE. HOLDINGS, LLC 189 A.D.3d 615 December 22, 2020

The plaintiff was injured during demolition work when an unsecured pipe fell from a ceiling, struck him and knocked him off of a ladder.

The court awarded summary judgment pursuant to Labor Law § 240(1) because the plaintiff’s injury was caused by the force of gravity and failure to provide proper safety devices. The court further stated that the plaintiff was not required to demonstrate that the pipe was being hoisted or secured when it fell, and that it did not matter whether the plaintiff was standing on the floor or ladder.

PRACTICE NOTE: A plaintiff is not required to

show that a pipe which fell from a height was hoisted or secured when it fell to be awarded summary judgment pursuant to § 240(1).

FIRST DEPARTMENT

TOPICS: Labor Law § 240(1)

MORERA V. NEW YORK CITY TR. AUTH. 189 A.D.3d 630 December 22, 2020

The court affirmed the denial of partial summary judgment in favor of the plaintiff’s Labor Law § 240(1) claim as there were questions of fact as to whether the equipment provided to the plaintiff by third-party defendant was adequate for the job of washing windows, or whether the plaintiff’s fall was caused solely by a falling tile. Following this ruling, the court held issues of fact existed as to whether the indemnity clause in the agreement between the third-party plaintiff and third-party defendant was triggered, and whether it violated General Obligations Law § 5-322.1 PRACTICE NOTE: Summary judgment for con-

tractual indemnity pursuant to an indemnity clause in an agreement may be denied as premature where issues of fact persist regarding whether a plaintiff was provided with equipment adequate for the job being performed.

TOPICS: Labor Law § 240(1), Labor Law

§ 241(6), Sole Proximate Cause, Contractual Indemnification, Common Law Indemnification, Contribution, Workers’ Compensation Law § 11, Grave Injury CLARKE V. EMPIRE GEN. CONTR. & PAINTING CORP. NY Slip Op 07698, December 22, 2020

While dismantling a scaffold, the plaintiff fell to the bottom of an elevator shaft. The court affirmed the plaintiff’s award of summary judgment pursuant to Labor Law §§ 240(1) and 241(6) because the plaintiff’s conduct was not the sole proximate cause of the accident, nor was he a recalcitrant worker acting outside the scope of his duties. The plaintiff dismantled the scaffold upon the instruction of his employer, and hearsay testimony to the contrary is insufficient to defeat summary judgment where it is the only evidence upon which summary judgment would be based. The court further determined that a contractual indemnification obligation was triggered because the contract required the third-party defendant to indemnify thirdparty plaintiff for damages “arising from any act, omission, negligence, potential claims, and losses or inter alia, [the third-party defendant] or its subcontractor during the performance of the contract.” A finding of negligence was not

required, because the duty to indemnify arose from the third-party defendant’s subcontractor in dismantling the scaffold. The court affirmed the lower court’s dismissal of common-law indemnification and contribution claims against the second third-party defendant because there was no evidence that the plaintiff sustained a grave injury under Workers’ Compensation Law § 11, which includes an acquired injury to the brain caused by external physical force which results in permanent total disability.

PRACTICE NOTE: A direct finding of negligence

against a defendant contractor is not required to award contractual indemnification where an agreement provides for indemnification arising out of a subcontractor’s work.

TOPICS: Labor Law § 240(1), Special Employee

Joint Venture, Workers’ Compensation Law § 11, Workers’ Compensation Exclusive Remedy FULLER V. KFG L & I, LLC NY Slip Op 07998, December 29, 2020

The court affirmed the dismissal of plaintiff’s common-law negligence and Labor Law § 240(1) claim holding that the owner established that it was engaged in a joint venture with the plaintiff’s employer. The workers’ compensation exclusivity defense offered by Workers’ Compensation Law § 11 is available where a plaintiff’s employer and a defendant have functioned as a joint venture/one company. An employee working for one employer is considered the employee of other employers in a joint venture. The court noted that there are several factors that must be weighed in determining whether a special employment relationship exists. Here, the court found that the companies were sister entities that functioned as a single integrated entity from inception to present; both companies were wholly owned by a common parent through which taxes were filed; both companies shared resources including a business address and personnel; and that both companies were formed on the same date for a common business purposes and held themselves out to the public as an integrated institution. The court found the fact that the two companies were formed for different purposes and maintained separate bank accounts were two factors to consider, but ultimately, did not preclude the workers’ compensation exclusivity defense.

ployee’s employer, or any employers in a joint venture with the plaintiff’s employer.

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

Comparative Negligence, Constructive Notice MCCULLOUGH V. ONE BRYANT PARK 2020 NY Slip Op 08003 December 29, 2020

The plaintiff was injured when he tripped over an “uncovered passageway” at a building under construction. At trial, the owner and construction manager were found to be 90% liable under Labor Law §§ 200 and 241(6), while the plaintiff was found to be 5% comparably negligent. The court denied defendants’ motion to set aside the verdict as to apportionment of liability, noting that it was not against the weight of the evidence. Although the evidence established that the plaintiff did not look down as he walked into the mechanical room, even if he had, he would not have seen the drain hole behind the curb and threshold, over which he stepped to enter the room. Further, there was evidence as to the owner and construction manager’s actual and/ or constructive notice of the condition.

PRACTICE NOTE: A plaintiff’s comparative fault is

a viable defense to §§ 200 and § 241(6) claims, however, the apportionment of liability must be carefully analyzed on a case-by-case basis.

PRACTICE NOTE: An injured employee is limited

to the exclusive remedy of workers’ compensation benefits in an action against the emSPRING 2021 | 13

FIRST DEPARTMENT SECOND DEPARTMENT

TOPICS: Labor Law § 240(1), Fall from Height,

Gravity-Related Risk, Statutory Agent

YAGUACHI V. PARK CITY 3 & 4 APTS., INC. 185 A.D.3d 635 July 1, 2020

The plaintiff was denied summary judgment on Labor Law § 240(1), even though he fell 30 feet from a balcony. The plaintiff’s claim against the owner and general contractor was based upon the collapse of the balcony when a hook and cable allegedly failed. The defense came forth with evidence showing that the hook and cable may not have actually failed and the plaintiff was acting outside the scope of his authority when he began working on the balcony. Finally, summary judgment was denied as to an additional contractor where the plaintiff failed to show they were an owner, contractor, or statutory agent.

PRACTICE NOTE: When analyzing a case under

§ 240(1) the analysis should always focus upon whether the safety device involved in the accident failed and whether an expert opinion is needed in defending liability.

TOPICS: Labor Law § 240(1), Owners

MARTIN V. HILLSIDE ENTERS., LLC 185 A.D.3d 809 July 15, 2020

The plaintiff, a demolition worker, was injured when he fell from a scaffold while clearing debris from a ceiling after a fire within a condominium. The defendant was allegedly the owner of the condominium in which plaintiff was injured.

The plaintiff was denied summary judgment on Labor Law § 240(1), because he failed to establish either through pleadings or testimony that he was injured while working within the defendant’s premises. In other words, the plaintiff failed to establish the defendant was an owner under the Labor Law. PRACTICE NOTE: § 240(1) applies to owners, con-

tractors, and statutory agents, and although the court may stretch to fit certain entities into these categories the plaintiff must still prove that the defendant does fall into one of these categories.

Violations

WETTER V. NORTHVILLE INDUS. CORP. 185 A.D.3d 874 July 15, 2020

The defendants were granted summary judgment dismissing the plaintiff’s Labor Law § 241(6) claim premised upon 23 NYCRR §9.7(e).

Here, the plaintiff was standing within the flatbed of a stopped truck and was injured when he jumped down and landed in a roadside ditch.

Industrial Code section 9.7 (e) entitled “Riding” prohibits passengers from riding on fenders, running boards, and other parts of vehicles and requires a safe platform or seat for them.

The court found this section inapplicable to the facts of this case due to the fact plaintiff was not “riding” since the vehicle was stopped and the accident occurred as a result of him jumping from the vehicle. The court further noted the section does not impute any requirement for a safe means of egress.

PRACTICE NOTE: When it comes to industrial

code violations, courts are going to give plain meaning to the statutes rather than stretch to find its applicable WHAT.

14 | Labor Law Update

Devices

KICKLER V. DOVE-TREE GREENERY, INC. 185 A.D.3d 1017 July 29, 2020

The plaintiff was injured while delivering fill material to a single family home when his dump truck tipped as a result of the ground beneath a tire caving in. The defendant contractors were granted summary judgment on the basis that the plaintiff was not exposed to the type of risk that safety devices of the kind enumerated in Labor Law § 240(1) would have protected against.

PRACTICE NOTE: While the courts have been

taking an ever expanding view of Labor Law § 240(1), the accident at issue must fall into the particular category of gravity-related accident for the statute to apply.

TOPICS: Elevation-Related Risk, Industrial Code

Violations TOPICS: Labor Law § 200, Homeowners’ Exception

CASILARI V. CONDON TOPICS: Labor Law § 241(6), Industrial Code

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

185 A.D.3d 896 July 22, 2020

The plaintiff was injured while working on a single family home. He placed a five-gallon bucket upon a deck and was standing on it to remove a window from the home. He stepped back from the bucket and was caused to fall 8-10 feet to the ground through an uncovered stairwell opening in the deck. At the trial level, the homeowners were granted summary judgment based upon the homeowners’ exception of the Labor Law §§ 240(1) and 241(6). However, the court found an issue of fact as to whether they satisfied the requirement of Labor Law § 200. The sole issue on appeal was whether the homeowners could be held liable under this section. In awarding the homeowner summary judgment, the Appellate Division examined both scenarios in which liability could be applied under § 200 and found the homeowners did not exercise sufficient supervisory control over the work and also did not have notice or create the condition which caused plaintiff’s accident.

PRACTICE NOTE: Although there is a specific

exception carved into §§ 240(1) and 241(6) for owners of one or two family homes, who do not direct or control work, when it comes to § 200, the homeowner must still establish the elements of negligence that apply to the particular accident scenario.

TAMALA-CAMPOVERDE V. TRUMBULL EQUITIES, LLC 186 A.D.3d 522 August 5, 2020

The plaintiff was attempting to connect two steel beams, one of which had just been hoisted by a crane and another which was already been installed. The hoisted beam was locked so that it could not move up or down. As the plaintiff was attempting to secure the hoisted beam, he pushed it forward, but it slid back toward him.

The plaintiff pushed against the sliding beam in an attempt to stop it and became injured. The court granted the defendants’ motion for summary judgment dismissing the plaintiff’s Labor Law § 240(1) claim, finding that the plaintiff’s accident was not the result of a physically significant difference in elevation. The court denied the defendants’ motion as to Labor Law § 241(6), however, finding that there was an issue of fact as to whether taglines were provided as required by the cited Industrial Code section.

Although the sliding beam hoisted at the time of the plaintiff’s accident, it was locked into place at the plaintiff’s chest level and could not move any further up or down.

PRACTICE NOTE:

SECOND FIRST DEPARTMENT

TOPICS: Industrial Code Violations, Evidence,

Indemnification

GOLEC V. DOCK ST. CONSTR., LLC 186 A.D.3d 463 August 5, 2020

The plaintiff’s foot was crushed as he was attempting to remove residual concrete from the hopper of a concrete truck. At the time of the accident, the pump motor was off, but the truck’s engine that powered the motor was still running. The court denied defendants’ motion for summary judgment as to the plaintiff’s Labor Law § 241(6) claim. The court found that the plaintiff alleged a sufficiently specific Industrial Code section to establish § 241(6) liability, and that the section was violated. Industrial Code 12 NYCRR 23-9.2(a) provides, in pertinent part, that “[a]ll power-operated equipment shall be maintained in good repair and in proper operating condition ... Any servicing or repairing of such equipment shall be performed only while such equipment is at rest.” The court denied the plaintiff’s motion for summary judgment as to liability, however because the plaintiff could not establish that the violation of this section proximately caused his injuries. The plaintiff was unable to testify as to what caused the pump to move. The court granted the defendants’ motion for contractual and commonlaw indemnification against third-party defendants, finding that conditional indemnification could be granted pending determination of the primary action.

PRACTICE NOTE: The predicate Industrial Code

section to make a § 241(6) claim must set forth a specific standard of conduct and not simply a recitation of common-law safety principles.

tiff’s cross motion to amend the complaint to allege a violation of § 200. In doing so, the court noted that the amended complaint was not devoid of merit, and the defendant did not demonstrate that any prejudice or surprise would result from the amendment.

PRACTICE NOTE: In order for an amendment to be

deemed improper, it must not only be late, but must also significantly prejudice the other side.

TOPICS: Agency, Authority to Supervise Work

FIORE V. WESTERMAN CONSTR. CO., INC. 186 A.D.3d 570 August 12, 2020

The plaintiff was injured when he slipped and fell on construction debris while pushing a handcart up a temporary wooden construction ramp. The plaintiff brought an action for Labor Law §§ 200, 240(1), and 241(6) and common law negligence against the owner, construction manager, and multiple subcontractors. The court ultimately granted summary judgment as to all of the claims for one subcontractor who was hired only in the capacity to build a new entrance from the street to the building where the plaintiff’s accident occurred. With respect to the plaintiff’s on §§ 240(1) and 241(6) claims, the court found that the plaintiff failed to establish that this subcontractor was an agent of the general contractor or owner. The plaintiff failed to show that the subcontractor had the authority to supervise or control the work that brought about his injury. The court also granted this subcontractor summary judgment as to § 200 and common law negligence, finding that it did not have control over the worksite.

PRACTICE NOTE: The court noted that the deter-

TOPICS: Labor Law § 200, Evidence, Pleadings

GOMEZ V. PRINCIPE 186 A.D.3d 466 August 5, 2020

The plaintiff was injured when he stepped into a hole on the defendant’s property. The plaintiff initially brought an action for common law negligence. At the close of discovery, the defendants moved for summary judgment. The plaintiff opposed the motion and cross-moved to amend the complaint and allege a violation of Labor Law § 200. The court denied the defendant’s motion for summary judgment finding that the defendant failed to eliminate triable issues of fact with respect to their constructive notice of the hole. The court also granted plain-

minative factor in whether a party can be liable as an agent of an owner or general contractor is whether that party had the right to exercise control over the work, not whether it actually exercised that right.

TOPICS: Falling Object, Safety Device, Evidence

HENRIQUEZ V. CLARENCE P. GRANT HOUS. DEV. FUND CO., INC.

Labor Law § 240(1), finding that the plaintiff’s evidence was insufficient to establish that the plank fell because of the absence of a safety device. In evaluating the plaintiff’s evidence, the court noted that the plaintiff testified that he discovered what happened during his accident from others after he woke up in the hospital. The plaintiff also submitted testimony of a superintendent who was not present at the worksite on the day the accident happened.

Although the plaintiff attempted to rely on information about his accident obtained from a daily log, the court found that plaintiff failed to authenticate it as a business record.

PRACTICE NOTE: The court disregarded an ac-

cident report submitted by the plaintiff in support of his motion for summary judgment, as the plaintiff only submitted it for the first time in his reply papers.

TOPICS: Falling Object, Industrial Code

Violations, Supervision and Control

CRICHIGNO V. PACIFIC PARK 550 VANDERBILT, LLC 186 A.D.3d 664 August 19, 2020

The plaintiff was struck by a piece of plywood that had just been pried from the ceiling above him. As to the plaintiff’s Labor Law § 240(1) claim, the court found that while the plaintiff established a prima facie entitlement to judgment as a matter of law, the defendants raised a triable issue of fact as to whether the plywood that struck plaintiff was an object that did not require securing. The court also denied the plaintiff summary judgment as to his Labor Law § 241(6) claim without having to review the sufficiency of any opposition papers, finding that he failed to establish violations of the cited Industrial Code sections. The court denied plaintiff summary judgment as to Labor Law § 200, finding that plaintiff failed to eliminate all triable issues of fact as to whether the defendants had the authority to supervise or control his work.

PRACTICE NOTE: In actions where materials fall

upon the plaintiff, the plaintiff must establish that the materials required securement at the time of accident to make a § 240(1) claim.

186 A.D.3d 577 August 12, 2020

The plaintiff was injured when a wood plank fell on his head while he and others were dismantling a scaffold. The court ultimately denied the plaintiff’s motion for summary judgment as to SPRING 2021 | 15

FIRST DEPARTMENT SECOND DEPARTMENT

TOPICS: Labor Law § 240(1), Sole Proximate Cause

PALAMAR V. STATE OF NEW YORK 186 A.D.3d 722 August 19, 2020

The plaintiff fell from a crossbeam while working on a bridge owned by the state of New York.

The court denied the plaintiff’s motions for summary judgment on his Labor Law § 240(1) claim. Although the plaintiff made a prima facie showing as to a statutory violation of § 240(1), the defendants raised an issue of fact as to whether the plaintiff was the sole proximate cause of the accident.

PRACTICE NOTE: The court in this case high-

lighted the rule that where there is no statutory violation, or where the plaintiff is the sole proximate cause of his or her own injuries, there can be no recovery under § 240(1).

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

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

LEMUS V. NEW YORK B REALTY CORP.

WISKI V. VERIZON N.Y., INC.

The plaintiff was using a metal tool to grab heavy beams and rotate them so they could be lined up with other nearby beams. When the plaintiff could no longer support the weight of the beam, the tool flew back into his face and injured him. The court dismissed the plaintiff’s cause of action for Labor Law § 240(1), finding that the plaintiff’s injury did not involve the kind of elevation-related risk contemplated by the statute. In doing so, the court noted that when the accident occurred, the plaintiff and beams were both at ground level, and the work did not call for the use of any protective devices mentioned in the statute.

The plaintiff was injured when he fell from a scaffold while performing asbestos abatement work. The plaintiff testified that while removing ducting, a section bent downward and struck the scaffold, causing him to fall. He admitted that he was provided with a hoist for securing and gradually lowering the ducting, but he was not using it at the time of the accident. The Second Department upheld the denial of the plaintiff’s cross-motion for summary judgment on his Labor Law § 240(1) claim. The court held that there were issues of fact as to whether the ducting posed an elevation-related risk that required securing for purposes of the work. Further, the plaintiff was provided with an enumerated safety device, a hoist, which he declined to use. He was also provided with a scaffold and failed to show it was inadequate.

Risk, Summary Judgment 186 A.D.3d 1351 September 16, 2020

PRACTICE NOTE: In deciding this case, the court TOPICS: Labor Law § 240(1), Labor Law § 241(6),

Contractual Indemnification

AGUILAR V. GRAHAM TERRACE, LLC 186 A.D.3d 1298 September 16, 2020

The plaintiff was injured when an unsecured HVAC duct fell and hit him, causing him to fall off of a beam approximately 10 feet to the ground.

The court granted plaintiff summary judgment as to liability for his Labor Law §§ 240(1) and 241(6) claims. The owner and general contractor, as defendants/third-party plaintiffs, moved for summary judgment motion on contractual indemnification against third-party defendant subcontractor. The third-party defendant subcontractor also moved for summary judgment against the owner and general contractor on the grounds that the anti-subrogation rule applied to any coverage under the primary and excess policies. The court denied both motions, holding that it was still premature to make a determination as any subrogation rights the owner and general contractor had against the subcontractor.

PRACTICE NOTE: While the court found it prema-

ture to decide the parties’ subrogation rights, it did grant the plaintiff’s summary judgment as to liability on both his §§ 240(1) and 241(6) claims.

emphasized that the single decisive question in a § 240(1) claim is whether the plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.

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

Violations, Summary Judgment

WEIN V. EAST SIDE 11TH & 28TH, LLC

186 A.D.3d 1590 September 23, 2020

PRACTICE NOTE: Under § 240(1), a plaintiff must

establish that an object fell because a safety device enumerated in the statute was absent or inadequate to establish liability. § 240(1) does not automatically apply just because an object fell and injured a worker.

186 A.D.3d 1579 September 23, 2020

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

The plaintiff was hoisting a component for a tower crane when it suddenly swung to the side and pinned him against a pipe. The plaintiff brought a Labor Law § 241(6) action alleging multiple violations of the Industrial Code.

The court dismissed the plaintiff’s claim as to many of the alleged violations on the grounds that plaintiff could not establish a violation of the cited Industrial Code section. The court granted summary judgment to the plaintiff with respect to the alleged violation of 12 NYCRR 238.1(f)(2)(i) because the plaintiff established that the hoisted load suddenly moved and caused the plaintiff’s injury. The court granted the plaintiff summary judgment even though the plaintiff was the sole witness to his accident.

The court also found that the plaintiff’s comparative negligence would not preclude liability under § 241(6).

BOSCONI V. THOMAS R. STACHECKI GEN. CONTR., LLC

PRACTICE NOTE: The fact that the plaintiff may have

been the sole witness to the accident will not preclude summary judgment in the plaintiff’s favor.

16 | Labor Law Update

Elevation-Related Risk

Labor Law § 200, Protected Class

186 A.D.3d 1600 September 30, 2020

The plaintiff was injured when a set of temporary stairs installed by the defendant collapsed underneath him. The plaintiff was the property manager for the premises and the sole member of the corporation that owned the premises. He brought claims against defendants under Labor Law §§ 241(6), 240(1), and 200. The Second Department upheld summary judgment for defendants on the basis that the plaintiff was not among the class of persons entitled to protection under §§ 241(6), 240(1), and 200.

PRACTICE NOTE: A plaintiff must be in the class of

persons entitled to protection under §§ 241(6), 240(1), and 200 for liability to attach.

SECOND FIRST DEPARTMENT

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

Labor Law § 200, Fall from Height, Supervision and Control MEDINA-ARANA V. HENRY ST. PROP. HOLDINGS, LLC 186 A.D.3d 1666 September 30, 2020

The plaintiff was injured when he fell from a six-foot scaffold that lacked guardrails on the sides. The Second Department reversed the lower court’s grant of summary judgment as to the plaintiff’s Labor Law § 240(1) claim on the grounds that the plaintiff failed to eliminate triable issues of fact as to whether the scaffold provided proper protection. The court held that absence of guardrails on an six-foot scaffold did not necessarily constitute a violation of § 240(1). The court also reversed the finding of summary judgment on the plaintiff’s Labor Law § 200 claim because the accident did not involve any dangerous or defective condition on the defendant’s premises. The accident involved the manner in which the plaintiff performed his work and defendant established that it did not exercise supervision or control over the work. The court affirmed the denial of defendant’s summary judgment motion on the Labor Law § 241(6) claim because defendant did not demonstrate that 12 NYCRR 23-5.1(b), dealing with the footing and anchorage of a scaffold, was either factually inapplicable to the case or as satisfied.

PRACTICE NOTE: Liability under § 240(1) is contin-

gent upon a hazard contemplated in the statute and the failure to use or the inadequacy of an enumerated safety device. A fall from scaffold in and of itself does not establish liability under § 240(1) unless proper protection was not provided.

TOPICS: Labor Law § 200, Duty to Provide Safe

Place to Work, Means and Methods

PACHECO V. JUDLAU CONTR., INC. 186 A.D.3d 1700 September 30, 2020

The plaintiff was an excavating laborer whose task was to shovel concrete debris into bags for removal caused by demolition inside a subway tunnel. Plywood had been placed over the subway rails to make it easier to shovel. The plaintiff was injured when his shovel struck a rail that was not covered by plywood. He alleged causes of action against the defendants for violation of Labor Law § 200 and common law negligence.

The Second Department reversed the lower

and held that the plaintiff’s injuries were caused by the ordinary and obvious hazards inherent to the work that his employer was hired to perform. The court held that the defendants established that the plaintiff’s job responsibilities required him to remove debris from the tracks.

The evidence established further that the plywood was placed over the tracks for the purpose of making it easier to remove the debris and not for a safety purpose.

PRACTICE NOTE: The duty to provide workers with

a safe place to work does not extend to hazards that are inherent to the work being performed or defects that a worker is hired to repair.

TOPICS: Labor Law § 200, Superseding Cause

JONES V. SAINT RITA’S R.C. CHURCH 187 A.D.3d 727 October 7, 2020

The plaintiff was injured when a window fell and hit her in the back of the head. The window had been screwed shut by the defendants. The plaintiff was working for a film production at the defendant’s school. One of the plaintiff’s coworkers removed the screws from the window that eventually fell on plaintiff. The plaintiff alleged causes of action for Labor Law § 200 and common law negligence. The court affirmed summary judgment in favor of the defendants holding that the window being unscrewed and opened was an intervening act that relieved the defendants of liability. While opening a window is foreseeable, in this case the window had been screwed shut, which was a plain indication that it was not supposed to be opened. Tools were required to open it. The coworker’s removal of the screws and opening of the window was an intervening act that was unforeseeable in the normal course of events and was sufficient to relieve defendants of liability.

PRACTICE NOTE: An intervening act constitutes

a superseding cause sufficient to relieve a defendant of liability if it is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant’s conduct.

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

Sole Proximate Cause

AHMED V F&G GROUP LLC 187 A.D.3d 972 October 21, 2020

The Second Department affirmed the lower court’s decision dismissing the plaintiff’s Labor Law §§ 240(1) and 200 claims. The court held that the defendants established entitlement to summary judgment as to the § 240(1) claim by demonstrating that the plaintiff’s actions were the sole proximate cause of his injuries. Further, the defendants established that they did not have the authority to supervise or control the plaintiff’s action, nor did they have actual or constructive notice of the alleged dangerous condition.

PRACTICE NOTE: Where there is no statutory

violation, or where the plaintiff is the sole proximate cause of his or her own injuries, there can be no recovery under § 240(1).

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

Contractual Indemnification

ZUKOWSKI V. POWELL COVE ESTATES HOME OWNERS ASSN., INC. 187 A.D.3d 1099 October 21, 2020

The plaintiff was injured when he slipped and fell on ice twice at premises being built by the defendants. The plaintiff was performing excavation work and slipped on ice on the only path that he could use to reach the excavator as well as on the tracks of the excavator. The Second Department held that defendants failed to make a prima facie showing of entitlement to summary judgment as to either the Labor Law §§ 200 or 241(6) claim. As to § 200, the court held that it was undisputed that the defendants had control over the worksite and there were issues of fact as to whether defendants knew about the ice that had accumulated on the path and the excavator. The court held that 12 NYCRR 23-1.7(d) was sufficiently specific to act as a predicate for § 241(6) and the testimony submitted by defendants that the subject path to the excavator was the plaintiff’s only means of traveling to the excavator and was flanked by piles of snow failed to eliminate issues of fact as to whether 1) the area constituted a walkway within the meaning of the subject code section; 2) there was a violation; and 3) the violation was a proximate cause of the accident. Further, the court held that the third-party defendant was entitled to summary judgment dismissing the SPRING 2021 | 17

FIRST DEPARTMENT SECOND DEPARTMENT

contractual indemnification claims because the written contract was a final agreement that did not obligate it to perform snow or ice removal work.

PRACTICE NOTE: Where a plaintiff’s injuries result

from a dangerous condition on the premises and not the manner in which the work was being performed, a general contractor may be liable under § 200 if it has control over the worksite and actual or constructive notice of the dangerous condition.

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

Cause, Searching the Record

LOJANO V. SOIEFER BROS. REALTY CORP. 187 A.D.3d 1160 October 28, 2020

The plaintiff fell from a makeshift scaffold he was directed to use by his supervisor after using a scissor lift in the weeks leading up to the accident. He used the scaffold he built with his supervisor the day before and morning of the date of accident. At the time of his accident, the scissor lift had been removed to another area. The defendants asserted the sole proximate cause defense to Labor Law § 240(1). The Second Department held that the evidence did not establish that the plaintiff was a recalcitrant worker. The court held that the evidence demonstrated that the plaintiff was directed to use the makeshift scaffold by his supervisor and the scissor lift was removed before the accident. As such, the plaintiff’s actions could not be considered the sole proximate cause of the accident.

The court further held that the lower court did not abuse its discretion in searching the record and awarding the plaintiff summary judgment on his § 240(1) claim because the evidence established that the plaintiff was not afforded the proper protection for the work being performed and the failure was a proximate cause of the plaintiff’s injuries. The Second Department also upheld the denial of the defendants summary judgment motion as to Labor Law § 241(6) as they failed to make a prima facie showing that 12 NYCRR 23-5.1(e), which established specific safety standards for scaffolds, was inapplicable to the facts of the case.

PRACTICE NOTE: The court may search the record

and award the plaintiff summary judgment on a § 240(1) claim when the evidence establishes that a plaintiff was not afforded proper protection for the work being performed and the failure was a proximate cause of the plaintiff’s injuries.

18 | Labor Law Update

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

FRASER V. KING 188 A.D.3d 656 November 4, 2020

The plaintiff was injured while performing work at a house owned by the defendants. The defendants were granted summary judgment as to the plaintiff’s Labor Law § 241(6) claim on the basis that owners of a one- or two-family dwelling used as a residence are exempt from liability unless they directed or controlled the work being performed. The Second Department upheld the decision. The plaintiff showing that the defendants made aesthetic decisions and exercised general supervision with respect to the project did not deprive the defendants of the benefit of the statutory exemption.

PRACTICE NOTE: Owners of a one- or two-family

dwelling used as a residence are exempt from liability under § 241(6) unless they directed or controlled the work being performed.

TOPICS: Labor Law § 241(6), One- or Two-family

Dwelling Exemption

GOMEZ V. 670 MERRICK RD. REALTY CORP. 2020 NY Slip Op 07549 December 16, 2020

The plaintiff was injured while attempting to reposition a cement slab that formed part of the roof of a one-story building. The plaintiff stood on an A-frame ladder, while two coworkers were positioned on the roof. From his position, the plaintiff held one end of a large cement slab as his coworkers pushed the slab with a crowbar.

While the plaintiff was holding or attempting to move the slab, the ladder moved and the slab fell onto his hand. In denying defendants’ motion for summary judgment under Labor Law § 240, the court found that defendants failed to show that this incident did not involve an injury caused by the failure to provide a safety device to protect against an elevation-related risk. In denying the plaintiff’s motion under Labor Law § 241(6), the court found that plaintiff failed to set forth sufficient statutory predicate under Industrial Code § 23-1.5(c) as there was no evidence the crowbar (which qualified as a piece of equipment) was defective or not in good repair, and further under § 23-3.3 as the accident was not caused by a structural instability that could have been noticed or addressed by inspection. Finally, in dismissing the plaintiff’s § 200 and common law negligence claims, the court found that the incident arose out of the means

and methods of the work, and the defendants’ general supervisory authority was insufficient to impose liability.

PRACTICE NOTE: When dealing with alleged In-

dustrial Code violations, the alleged violations must be the proximate cause of the injury, and if not, there is insufficient statutory predicate to establish liability under § 241(6).

TOPICS: Labor Law § 200, Common Law

Negligence, Ladder, Means and Methods, Hazardous Condition, Notice, Sole Proximate Cause TOMLINSON V. DEMCO PROPS NY LLC 2020 NY Slip Op 07616 December 16, 2020

The plaintiff, an independent contractor, was retained by a service provider’s subcontractor to install internet/cable/TV services for a tenant at a property. The plaintiff was injured when, in the course of attempting to free a cable wire that had become caught, he stepped from a ladder onto a porch roof covered with snow and ice and fell to the ground. As to the plaintiff’s Labor Law § 200 claim against the provider and its subcontractor, the court found that neither defendant created nor had notice of the hazardous condition, and further, neither controlled the means and method of work performed by Plaintiff. With respect to the plaintiff’s Labor Law § 240 claim against the provider and its subcontractor, the court found that the plaintiff was the sole proximate cause of his accident as the evidence established that the plaintiff chose to step off the ladder and onto the porch roof even though he observed the roof covered in snow and knew it to be a snowy, sloped surface. As to the owner defendant, the plaintiff’s § 240(1) claim was also dismissed because the owner did not consent to the service installation.

PRACTICE NOTE: Not every injury from an eleva-

tion-related risk constitutes an automatic violation of § 240(1). A plaintiff may not recover if he is solely to blame for his accident and no violation proximately caused his injury.

SECOND FIRST DEPARTMENT

TOPICS: Labor Law § 240(1), Hazardous Openings,

Gravity-Related Hazard, Protected Activity ZOTO V. 259 W. 10TH LLC 134 N.Y.S. 3d 728 December 23, 2020

The plaintiff was performing renovation work in an apartment when he fell through an opening in the floor of the living room. At the time, the plaintiff was employed by a subcontractor who was responsible for fabricating and installing glass shower doors in the bathrooms and a glass balustrade in the living room to crease an enclosure around a large opening in the living room floor. The court found that the risk of falling into an unprotected hole in a floor is a type of elevation-related risk within the purview of Labor Law § 240(1). However, given the discrepancies in deposition testimony of the parties concerning the location and nature of the work the plaintiff was performing prior to, and at the time of, the accident, there were triable issues of fact as to whether the plaintiff’s tasks required him to be in the living room area in proximity to the opening and whether he was engaged in the type of activity protected by § 240(1) at the time of the accident.

PRACTICE NOTE: Not every injury from an eleva-

tion-related risk constitutes an automatic violation of § 240(1). In cases where more than one version of events is provided, the court will not grant the plaintiff summary judgment if both versions do not fall within the ambit of § 240(1).

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

Related Hazard, Burden of Proof JOSEPH V. 210 W. 18TH LLC 134 N.Y.S. 3d 775 December 23, 2020

The plaintiff, an employee of subcontractor, fell from an A-frame ladder while working in an apartment undergoing a renovation. The plaintiff claimed the ladder was stable when he commenced his work, the floor was level, the ladder’s cross braces were fully extended, and the ladder was no defective. While he was on the ladder, it “shook” and he fell backward.

He does not recall if the ladder fell over, and he was the sole witness to the accident. In denying the plaintiff’s motion for summary judgment, the court stated that the fact that the plaintiff fell from a ladder, standing alone, is insufficient to establish prima facie that the ladder was an inadequate safety device, and the plaintiff’s claim that the ladder shook does not satisfy

that burden. There was no evidence that the ladder moved out of position, to indicate that it was inadequately secured.

PRACTICE NOTE: Not every injury from an eleva-

tion-related risk constitutes an automatic violation of Labor Law § 240(1). With respect to a fall from a ladder, the plaintiff must establish that the ladder was inadequately secured.

TOPICS: Labor Law § 200, Common Law

Negligence, Labor Law § 241(6), Means and Methods, Protected Activity DORAN V. JOP WALSH REALTY GROUP LLC 134 N.Y.S. 3d 787 December 23, 2020

The plaintiff was injured while performing tree removal work. In dismissing the plaintiff’s Labor Law § 200 and common law negligence claims, the court noted that the plaintiff’s injuries arose from the manner in which the work was performed, not from a dangerous condition. Further, the debris in the area where the accident occurred was an unavoidable and inherent result of the ongoing tree removal work. Since none of the defendants bore responsibility for the manner in which the work was performed, the plaintiff’s claim failed. With respect to his § 241(6) claim, the court found that the plaintiff was not engaged in construction, excavation or demolition work within the meaning of the statute, and therefore, the plaintiff’s cited Industrial Code provisions were inapplicable.

PRACTICE NOTE: The courts will closely examine

whether a plaintiff was employed in an enumerated activity.

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

Industrial Code 12 NYCRR § 23-1.7(d), Labor Law § 240(1), Dangerous Condition, Supervision and Control, Means and Methods, Slipping Hazard VILLA V. EAST 85TH REALTY, LLC 2020 NY Slip Op 08103 December 30, 2020

The plaintiff was installing tile in an apartment bathroom when he slipped and fell. At the time of the incident, the plaintiff was attempting to get into a bathtub to install a piece of tile on the wall. The plaintiff stepped with his left foot onto the rim of the bathtub and while his right foot was still on the ground outside the bathtub, his left foot slipped, causing him to fall backward.

The plaintiff did not know whether the rim of the bathtub was wet or slippery with water or another foreign substance and could not identify what caused his foot to slip. The court dismissed the plaintiff’s complaint against the owner defendant under Labor Law § 200 as the plaintiff was unable to establish a dangerous condition and because the owner defendant had no authority to supervise or control the manner in which the plaintiff’s work was performed. Further, the plaintiff’s Labor Law § 241(6) claim under Industrial Code § 23-1.7(d) addressing slipping hazards was inapplicable as the plaintiff could not identify what caused his foot to slip. Finally, the court found that the plaintiff could not maintain a claim under § 240(1) because he was not exposed to an elevation-related hazard because his right foot was still on the ground when he slipped and fell.

PRACTICE NOTE: Mere speculation by the plaintiff

on what they slipped on is not sufficient enough information to establish a claim. If the plaintiff cannot identify a defect sufficiently, summary judgment should hold.

TOPICS: Labor Law § 200, Dangerous Condition,

Supervision and Control, Means and Methods, Common Law Negligence, Ladder MONDTRAGON-MORENO V. SPORN 2020 NY Slip Op 08056 December 30, 2020

The plaintiff attempted to use an A-frame ladder to get down from an elevated platform to ground level, when the ladder slipped out from under him, causing him to fall to the ground.

The plaintiff initially alleged that melted snow and/or ice created was the dangerous condition, however, he later testified that there was no snow or ice in the backyard where he was working. Therefore, the court found that the plaintiff’s injuries stemmed from the manner in which the work was performed. The evidence established that the homeowner defendants did not provide any equipment or ladders, did not have the authority to direct or control the means and methods of the work, and did not interact with the contractor’s employees. The work was only subject to the homeowner defendants’ approval upon completion, not on an ongoing basis.

PRACTICE NOTE: When considering means and

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

SPRING 2021 | 19

FIRST DEPARTMENT THIRD DEPARTMENT

TOPICS: Contractual Indemnification, Common

Law Indemnification

LAMELA V. VERTICON, LTD 185 AD3d 1319 July 23, 2020

The plaintiff was injured when an unsecured wall collapsed, displacing a motorized scissor lift that the plaintiffs operated while performing demolition work on a construction site. The plaintiffs were granted partial summary judgment and the general contractor and owner were found strictly liable pursuant to Labor Law § 240(1). The defendants then agreed to a settlement of the plaintiff’s claims. The plaintiff’s employer moved for summary judgment dismissing the third-party complaint seeking contractual indemnity. The general contractor and owner cross-moved on the indemnity claim. The Supreme Court granted the owner’s motion seeking contractual indemnity and denied the employer’s motion for summary judgment. The Appellate Court affirmed the lower court’s decision citing “the fact that the owner is entitled to enforcement of the contract by seeking payment from the employer does not operate to negate or determine the employer’s cross-claims against the other parties.” The trial court properly granted a general contractor’s motion for summary judgment on subcontractor’s cross-claim for common law indemnity.

PRACTICE NOTE: Indemnity was governed by

contract and not by a voluntarily assumed contractual obligation flowing to the premises owner, rather than one imposed vicariously, by operation of law.

20 | Labor Law Update

FOURTH FIRST DEPARTMENT

TOPICS: Common Law Negligence, Control over

TOPICS: Sole Proximate Cause, Safety Device,

TOPICS: Ladder, Defective Condition

EBERHARDT V. G & J CONTRACTING, INC.

SCHUTT V. BOOKHAGEN

WALKOW V. M.J. PETERSON/TUCKER HOMES, LLC

The defendant, a subcontractor, was granted summary judgment pursuant to Labor Law §§ 200 and 241(6) based upon a finding that the subcontractor did not have the authority to supervise or control the work that caused the plaintiff’s injury. Further, the subcontractor cannot be held liable for common law negligence because it did not exercise any direct control over the work or the manner in which the work was being performed and it did not create a hazardous condition.

The plaintiff was entitled to summary judgment on his Labor Law § 240 claim because the worker was on a roof when a toe board failed, causing him to fall from the roof. The plaintiff was not provided with a harness and there were no available harnesses nearby. The defendants raised the sole proximate cause defense. The court held that the presence of a safety harness in the plaintiff’s truck was insufficient to raise a triable issue of fact as to whether the worker’s conduct was the sole proximate cause of his injuries. The mere failure by the plaintiff to follow safety instructions does not render the plaintiff the sole proximate cause of his injuries.

Work, Supervision, Control 188 AD3d 1654 November 13, 2020

PRACTICE NOTE: A Labor Law defendant must be

an owner, general contractor, or an entity with authority to supervise or control the plaintiff’s work.

TOPICS: Delivery of Materials, Immediate Use,

Labor Law, Covered Work

SHAW V. SCEPTER, INC. 187 AD3d 1662 October 9, 2020

The Supreme Court erred when it granted the defendant summary judgment on Labor Law §§ 240(1) and § 241(6). The court granted the motion on claims that were not raised by the defendant (i.e., that the plaintiff was not engaged in a protected activity). The plaintiff was delivering equipment at the time of his accident. He was unloading a “manlift” from the back of a flatbed truck onto the premises when his accident occurred. Delivery of equipment is a covered activity if the equipment is being delivered to an active construction site or is being “readied for immediate use.”

PRACTICE NOTE: Delivery of equipment is not a

covered activity under § 240(1) if it is being delivered to an inactive construction site and is merely being stockpiled for future use.

Fall from Height 186 AD3d 1027 August 20, 2020

PRACTICE NOTE: To establish sole proximate

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

TOPICS: Manufacturer, Contract, Installation,

Supervision and Control

BARKER V. UNION CORRUGATING, CO. 187 AD3d 1544 October 2, 2020

The plaintiff met his initial burden for summary judgment on Labor Law § 240 against a roofing manufacturer establishing that the manufacturer failed to provide appropriate safety devices and that he was working at an elevated worksite and that the statutory violation was a proximate cause of his injuries. The manufacturer was a contractor within the meeting of § 240 because the manufacturer entered into a contract with the plaintiff’s employer to install the roofing materials at issue. Further, the manufacturer agreed to perform inspections, stop work, and remove the worker’s employer from the job.

PRACTICE NOTE: A defendant manufacturer can

be deemed a contractor if it installs its product, performs inspections, stops work, and employs workers for the job.

185 AD3d 1463 July 17, 2020

The plaintiff brought a Labor Law § 240(1) claim against the defendants for injuries he sustained when he fell from a roof during the course of installing siding on a residential construction project. The plaintiff fell from a ladder that “kicked out” from under him causing him to fall to the ground. The Appellate Court found that the trial court erred by not awarding summary judgment to defendants on the plaintiff’s Labor Law § 241(6) claim predicated on a violation of 12 NYCRR 23–1.7 because defendants establish that there was no evidence of a slippery condition at the worksite at the time of accident.

Further, the plaintiff did not meet his burden on his motion with respect to the applicability of 12 NYCRR 23–1.2, which require a ladder to be secured against “side slip” because he never addressed this issue in his motion papers.

PRACTICE NOTE: An Industrial Code violation is a

predicate to making a § 241 (6) claim. The code must be sufficiently specific to the facts and the violation of the code must be the proximate cause of the plaintiff’s injuries.

TOPICS: Excavation, Common Law, Supervision

and Control, General Contractor

KRENCIC V. OAK GROVE CONSTRUCTION, INC. 186 AD3d 1006 August 20, 2020

The general contractor was not entitled to summary judgment on Labor Law § 240 (1) because a triable issue of fact existed as to whether the plaintiff’s tree removal work at the time of accident was ancillary to a larger construction project, specifically the culvert installation work that was ongoing at the time of accident.

The plaintiff’s accident occurred when a tree fell from an excavator truck and struck him. The general contractor was entitled to summary judgment on the plaintiff’s Labor Law § 200 claim because evidence established that the dangerous condition arose from methods of the subcontractor and the general contractor did not exercise supervisory control over the removal of the tree or any aspect of the activities of the subcontractor’s employee.

PRACTICE NOTE: In determining whether § 240(1)

applies, the court will look for evidence that the plaintiff’s work is part of the larger construction project.

SPRING 2021 | 21

Index A

G Access to Work Area 6 Agency 15 Authority to Control the Work 4 Authority to Supervise Work 15

General Contractor 21 General Foreman 12 General Obligations Law 4 General Supervisory Authority 9 Grave Injury 13 Gravity-Related Hazard 19 Gravity-Related Occurrence 12 Gravity-Related Risk 14

B Burden of Proof 4 6 9 10 19 C Cleaning 11 Collateral Estoppel 12 Common Law 21 Common Law Indemnification 13 20 Common Law Negligence 11 18 19 20 21 Comparative Negligence 13 Constructive Notice 13 Contract 21 Contractual Indemnification 4 5 13 16 17 20 Contribution 12 13 Control 21 Control over Work 21 Covered Work 21

H Hazardous Condition 18 Hazardous Openings 19 Homeowners’ Exception 14 Homeowners’ Exemption 5

Non-delegable Duty 7 Notice 18 Notice of Claim 7 O One- or Two-family Dwelling Exemption 18 Open and Obvious Condition 5 Owners 14 P Permanent Structure 5 Pleadings 15 Protected Activity 19 Protected Class 16 Proximate Cause 8

I Immediate Use 21 Indemnification 12 15 Industrial Code 12 NYCRR § 23-1.7(d) 19 Industrial Code 12 NYCRR § 23-1.7(e) (1) 10 Industrial Code § 23-1.7(d) 12 Industrial Code § 23.1.7(e)(1) 11 Industrial Code § 23-1.7(e)(1) & (2) 6 Industrial Code § 23-1.7(e)(2) 11 Industrial Code § 23-1.16(b) 10 Industrial Code § 23-2.1(a)(2) 5 Industrial Code Violations 14 15 16 Installation 21 Integral to the Work 11

D Dangerous Condition 19 Defective Condition 21 Delivery of Materials 21 Duty to Provide Safe Place to Work 17 E

N

R Routine Maintenance 4 S Safety Device 8 9 10 11 12 15 16 21 Searching the Record 18 Slipping Hazard 19 Sole Proximate Cause 4 5 6 7 9 11 12 13 16 17 18 21 Sole Witness 8 Special Employee Joint Venture 13 Statutory Agent 7 14 Summary Judgment 16 Superseding Cause 17 Supervision 21 Supervision and Control 9 15 17 11 19 21

L Elevation-Related Risk 14 16 Enumerated Activity 8 11 Enumerated Safety Devices 14 Evidence 15 Excavation 21 Expert Opinion 10 Experts 5

F Fall from Height 14 17 21 Falling Object 5 15

Labor Law 21 Labor Law § 200 4 5 7 9 10 11 12 13 14 15 16 17 18 19 Labor Law § 240(1) 4 5 6 7 8 9 10 11 12 13 14 16 17 18 19 Labor Law § 241(6) 5 6 7 8 10 11 12 13 14 16 17 18 19 Ladder 4 6 7 18 19 21 M Manufacturer 21 Means and Methods 11 17 18 19 Means of Ingress 6

U Unsafe Condition 4 W Walkway 12 Workers’ Compensation Exclusive Remedy 13 Workers’ Compensation Law § 11 13

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