Labor Law Update - Spring 2022

SPRING 2022

I N T H IS ISSU E: ▶ 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), Labor Law § 241(6),

Labor Law § 200, Sidewalk, Elevation-related risk, Proximate cause CORONA V. HHSC 13TH ST. DEV. CORP.

PRACTICE NOTE: Summary judgment is inappro-

PRACTICE NOTE: An owner of a structure is not li-

TOPICS: Routine maintenance, Cleaning,

TOPICS: Labor Law § 240(1), A-frame ladder,

SAHMANOVIC V. KINGSBRIDGE REALTY ASSOC., LLC

PLAKU V. 1622 VAN BUREN LLC

priate where there is an issue of fact regarding a risk arising from a physically significant elevation differential.

able under Labor Law § 240(1) if the owner did not contract for, direct, control, or benefit from the work being performed.

197 A.D.3d 1025 September 16, 2021

The plaintiff alleged that he was injured when he fell on the sidewalk abutting the defendant’s property while working on the deconstruction and disassembly of a sidewalk bridge, and his right eye became impaled on a tree guard.

The court dismissed the plaintiff’s Labor Law § 240(1) claim because his injury was not the result of an elevation-related risk against which he was not properly protected. Similarly, the court dismissed the plaintiff’s Labor Law § 241(6) claims predicated on Industrial Code § 23-1.7(e) (2) because the tree guard bore no relation to “the work being performed” and on § 23-5.1(h) because the putative absence of a “designated person” was not a proximate cause of the accident. However, the court declined to dismiss the plaintiff’s Labor Law § 200 claim on the basis the application was premature, finding that facts essential to justify opposition may exist but cannot be argued by the plaintiff because they are within the defendant’s exclusive knowledge.

PRACTICE NOTE: Summary judgment may be

denied as premature where discovery is not complete and one party maintains exclusive knowledge of information concerning labor law claims that is necessary for the other party to oppose same.

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

POWERS V. RIVER CTR. LLC 197 A.D.3d 1054 September 28, 2021

In a Labor Law § 240(1) case, an injured plaintiff testified at his deposition that he was standing on the floor at the time of the incident, but later submitted an affidavit indicating that he was standing on top of a makeshift apparatus positioned three feet above the floor at the time of the incident. The court found that this affidavit did raise a triable issue of fact as it directly contradicted his prior deposition testimony. Nonetheless, the court ruled that summary judgment in favor of the defendants was inappropriate as there was an issue of fact as to whether carpet and pipe, which weighed approximately 275 pounds, resting approximately three feet above the floor, posed “a risk arising from a physically significant elevation differential.”

4 | Labor Law Update

Enumerated activity, Pleadings

197 A.D.3d 1077 September 30, 2021

In this action, the plaintiff attempted to amend her complaint to add labor law claims against the defendants. In denying the plaintiff’s motion, the court noted that the plaintiff allegedly sustained injuries while she was performing a routine cleaning of the ground area outside the premises. Such claims are outside the reach of the labor law.

PRACTICE NOTE: Labor law claims do not en-

compass routine maintenance and cleaning as these are not “protected activities.”

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

Protected activities, Direct or control work, Parties liable

VILLALTA V. CONSOLIDATED EDISON CO. OF N.Y., INC. 197 A.D.3d 1078 September 30, 2021

The plaintiff, a cable-service repairman employed by a nonparty cable company, fell from a ladder he had propped up against a telephone pole owned by the defendant while he was inspecting storm-damaged cable equipment supported by the pole. Although the court noted that the telephone pole is a structure within the meaning of Labor Law § 240(1), and the plaintiff’s work replacing the damaged cable equipment and reconfiguring its support system amounted to “repairs” and/or an “alteration” to the equipment, the court affirmed the dismissal of the plaintiff’s claim against the defendant because there was no evidence that the defendant “contracted for, directed or controlled, or benefitted from” the work the plaintiff was performing at the time he was injured or that the defendant was acting in the capacity of an accountable “owner” within the meaning of the statute.

Recalcitrant worker, Proximate cause, Sole proximate cause, Adequate safety devices 198 A.D.3d 431 October 5, 2021

The plaintiff, a construction worker, established prima facie entitlement to summary judgment on his Labor Law § 240(1) claim by submitting proof that he was injured when a closed, unsecured A-frame ladder, which he stood upon to throw debris into a dumpster, shifted from its propped position against the dumpster, causing him to fall and injure himself. The defendants argued that the plaintiff was recalcitrant in ignoring the defendants’ alleged instructions not to use the dumpster. However, the court found that this is insufficient to raise an issue of fact. The recalcitrant worker defense “requires a showing that the injured worker refused to use the safety devices that were provided by the owner or employer. It has no application where, as here, no adequate safety devices were provided.”

PRACTICE NOTE: If a statutory violation is a proxi-

mate cause of an injury, the plaintiff cannot be solely to blame for it. A worker’s injury in an area of the worksite where the worker was not supposed to be amounts to comparative negligence, which is not a defense to Labor Law § 240(1).

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

Safety devices, Industrial code violations VIRUET V. PURVIS HOLDINGS 198 A.D.3d 587 October 26, 2021

The plaintiff was injured in two separate accidents on the same job site, two days apart.

First, while cleaning up debris, a concrete form fell on top of him from a height of three feet.

The court held that this was a violation of Labor Law § 240(1) because, even if the pins attaching the form to the wall failed as claimed, said pins were an insufficient safety device which resulted in the accident. The second accident occurred when the plaintiff was using a visibly defective grinder with no safety guard, side handle

FIRST DEPARTMENT

or cutoff switch that he was ordered to continue using after it had already malfunctioned. The court held that this was a violation of Labor Law § 241(6) since Industrial Code § 23-1.5(c)(3) requires that such defective tools be taken out of service when found to be damaged.

PRACTICE NOTE: The failure or absence of a safe-

ty device will often result in a finding of liability under Labor Law §§ 240(1) or 241(6).

rowed by the courts. Nevertheless, it is clear that if no other safety devices are available, there will not be a viable sole proximate cause defense as it can be equally argued that the lack of any other available safety device, or ladder as in this case, was as much a cause of the accident as the injured worker’s use of a barrel to descend from a height.

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

Permanent structure, Foreseeable risk of harm MENA V. 485 SEVENTH AVE. ASSOC. LLC 199 A.D.3d 420 November 4, 2021

The plaintiff was injured while performing demolition work with a chipping hammer on a wall when a concrete slab from the ceiling collapsed on him, knocking him off a five-plus-foot scaffold to the floor. Although the ceiling was a “completed and permanent structure,” the facts presented a violation of Labor Law § 240(1) because the collapse of a ceiling directly adjacent to the wall being removed constitutes a foreseeable risk requiring appropriate protective devices.

The defendant’s arguments that the site superintendent testified to inspecting the area prior to the work were unpersuasive because there was no detail about the condition of the ceiling nor what the inspection consisted of.

Perhaps better deposition preparation of the superintendent could have shown that proper precautions were taken.

However, it is unlikely that the Labor Law § 240(1) claim would be dismissed under the circumstances presented.

PRACTICE NOTE:

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

cause, Safety devices

MCEACHERN V. EXTELL DEV. CO. 199 A.D.3d 464 November 9, 2021

The plaintiff was injured when he fell while using an oil barrel to descend four feet to a fuel tank room. The court found that, because the plaintiff was not provided any safety devices at all, his attempt to use the oil barrel could not be the sole proximate cause of his accident.

Safety devices, Secured objects

MENDOZA V. PLAZA CONSTR. LLC 199 A.D.3d 465 November 9, 2021

The plaintiff was injured when a bundle of metal frames fell on him and pulled him to the ground three- to four-feet below because a wooden dunnage securing the frames broke. The failure of the wooden dunnage, a device meant to secure the objects, indicates it was inadequate for the task and thus presents a claim under the so called “falling object” interpretation of Labor Law § 240(1).

PRACTICE NOTE: When a safety device fails, a vi-

able violation of the labor law is almost certain.

TOPICS: Labor Law § 200, Common law

negligence, Defective condition, Burden of proof, Construction notice DAVIS V. TRUSTEES OF COLUMBIA UNIV. IN THE CITY OF NY 199 A.D.3d 481 November 16, 2021

The plaintiff tripped and fell on a piece of wood at a job site. The court found that such an accident presented viable common law negligence and Labor Law § 200 claims against the defendant property owner since liability may attach to an owner or a general contractor for claims arising from an alleged defective or dangerous condition if they either created the condition or had notice of it. An accumulation of debris at a worksite constitutes a dangerous condition and, here, the defendant failed to demonstrate that it lacked constructive notice of same.

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

violations, Industrial Code § 23-1.7(e)

DELEO V. JPMORGAN CHASE & CO. 199 A.D.3d 482 November 16, 2021

The plaintiff was injured when he slipped on a bottle cap at a construction site. This claim was brought under the purview of Labor Law § 241(6) supported by Industrial Code § 23.1.7(3), which addresses accumulation of debris on worksites.

The case also presents a claim under Labor Law § 200 and common law negligence. The court’s decision turned on the location of the debris as the court cited decisions where food on the floor of a worksite was a potential industrial code violation and contrasted them against another case where a stray sandwich wrapper on a roof did not present a potential violation.

PRACTICE NOTE: For a seemingly unrelated ac-

cident such as one involving a bottle cap, the location of the debris is crucial in determining if the action falls under the applicable industrial code violation.

TOPICS: Labor Law § 240(1), Summary judgment,

Failure of a safety device

HERNANDEZ V. 767 FIFTH PARTNERS, LLC 199 A.D.3d 484 November 16, 2021

The plaintiff was injured when the platform on a Baker scaffold he was using fell off the frame, causing him to fall to the ground. The plaintiff was entitled to summary judgment under Labor Law § 240(1) because, whether the platform collapsed due to a worn out platform or an incorrectly set pin on the scaffold, the plaintiff was deprived of proper protection while working. Of note, there was no evidence as to who set the pin or erected the scaffold, and the plaintiff denied that he was the one who did so.

PRACTICE NOTE: When there is an accident such

as a collapsed scaffold, Labor Law § 240 will apply even if there is more than one potential cause for the collapse.

PRACTICE NOTE: Before moving for summary

judgment, it is critical to eliminate any issues of constructive notice during discovery.

PRACTICE NOTE: It appears that the sole proxi-

mate cause defense is constantly being narSPRING 2022 | 5

FIRST DEPARTMENT

TOPICS: Labor Law § 240, Sole proximate cause,

Labor Law § 200, Direction, Supervision, Control

supervisor demonstrated that there were no other safety devices readily available.

TOPICS: Labor Law § 200, Common law

DASILVA V. TOLL FIRST AVENUE, LLC

PRACTICE NOTE: The defendant failed to estab-

CASTELLANO V. ANN/NASSAU REALTY LLC

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

The negligence and Labor Law § 200 claims were dismissed against the owner and general contractor of a construction project. The owner and general contractor established that they did no more than general safety supervision at the worksite and did not have supervisory control over the injury-producing work, namely unloading sheetrock from a truck onto a dolly.

199 A.D.3d 511 November 18, 2021

The plaintiff was injured when he fell from an unsecured wooden plank while constructing framework for the pouring of concrete columns. He testified that his co-workers placed unsecured wooden planks across the horizontal beams of the structure to allow him to cross the beams and place heads on the tops of the vertical posts at the corners of the structure.

One of the planks flipped while he was performing the work, causing him to fall to the concrete floor below. The plaintiff established that the defendants were liable for his injuries under Labor Law § 240. The defendants argued that the plaintiff fell less than six feet. The court found that that does not render the statute inapplicable. The defendants failed to submit evidence that the plaintiff was the sole proximate cause of the accident. Their contention that the plaintiff could have worked from the concrete floor is undetermined by testimonial evidence. An issue of comparative fault is not a defense in a Labor Law § 240 claim. The Labor Law § 200 and common law negligence claims were correctly dismissed as against the defendants since the record was devoid of any evidence that the defendants had the authority to exercise supervisory control over the injury-producing work.

PRACTICE NOTE: Claiming an alternative method

to perform work is available is not sufficient to establish the sole proximate cause defense.

TOPICS: Ladder, Safety devices, Defect, Sole

proximate cause

MULLINS V. CENTERLINE STUDIOS, INC. 199 A.D.3d 526 November 18, 2021

The plaintiff made a prima facie showing that the wooden ladder he was using to help construct a theater set, which was mounted to the set wall and was required to be climbable, malfunctioned when the newly added top rung detached from the railing as he held onto it and leaned to the side. The defendant’s argument that the plaintiff’s own acts or omissions were the sole cause of the accident failed as there was no evidence that the plaintiff had been instructed to utilize only the A-frame ladder that his co-workers were already using or to avoid using the ladder from which he fell. Testimony of the plaintiff and his 6 | Labor Law Update

lish the sole proximate cause defense because they did not establish facts with enough specificity to support this position.

Repairs, Routine maintenance, Covered work RODRIGUEZ V. MILTON BORON, LLC 199 A.D. 3d 537 November 18, 2021

The plaintiff established prima facie entitlement to partial summary judgment on his Labor Law § 240(1) claim by submitting proof that he fell from an unsecured A-frame ladder that suddenly moved as he was reaching overhead to hardwire a new smoke and carbon monoxide detector to replace an inoperable hardwired smoke detector that he had just removed. It was established that the plaintiff’s work constituted a repair within the protections of Labor Law § 240 and not merely routine maintenance.

PRACTICE NOTE: When evaluating a labor law

claim, a defendant should closely examine whether the plaintiff was engaged in an enumerated activity.

TOPICS: Labor Law § 240, Height-related risk, Safety devices

negligence, Direction, Control, Supervision 199 A.D.3d 558 November 23, 2021

PRACTICE NOTE: Control, supervision and di-

rection must be established by a plaintiff who seeks to impose liability under Labor Law § 200 as to a general contractor under the theory that the accident arises from the means and methods of the work.

TOPICS: Labor law defendant, Owners, General

contractors

WINKLER V. HALMAR INTERNATIONAL, LLC 199 A.D.3d 598 November 23, 2021

In a Labor Law § 241(6) claim, although the City of New York was not title owner of the property, it had an interest in the project and fulfilled the role of owner by contracting to have work performed for their benefit.

PRACTICE NOTE: Under the labor law, the title

HOVORKA V. APPLIED PRODUCTS COMPANY, INC.

of “owner” will apply to a variety of entities involved in the work.

The plaintiff was granted summary judgment on Labor Law § 240(1) because he established that he fell while walking along an elevated retaining wall to access a job site. This activity presents the type of elevation-related risk contemplated by the statute, which could have been mitigated by providing the type of protective devices listed in § 240(1).

TOPICS: Premises defect, Passageway, Hole,

199 A.D. 3d 520 November 18, 2021

PRACTICE NOTE: A violation of Labor Law § 240(1)

will be established where there is a failure to provide safety devices.

Contractual indemnification

PAWLICKI V. 200 PARK, LP 199 A.D.3d 578 November 23, 2021

The plaintiff, a carpenter, was injured on a job when he stepped on a grill covering an opening in the floor. The grill was unsecured, despite the presence of pre-existing screw holes, and covered by construction paper believed to have been for dust protection. The plaintiff’s foot slipped down into the exposed opening when the grill caved in. The defendants failed to establish that they neither created the dangerous condition by covering the unsecured grill with paper, nor had notice of the unsecured condi-

FIRST DEPARTMENT

tion. Common law negligence and Labor Law § 200 claims could not be dismissed. Also, there was a question of fact as to whether the defendants’ actions were the sole proximate cause of the plaintiff’s accident and summary judgment on their contractual indemnification claim would be premature since there is evidence that the general contractor defendant may have covered the grill with paper, concealing a dangerous condition from the plaintiff.

PRACTICE NOTE: A general contractor who as-

sumes a duty for site safety must do so in a reasonably prudent manner.

al stud under the beam. The plaintiff moved for summary judgment on Labor Law § 240(1). The defendants claimed the motion was premature due to outstanding discovery and came forth with documentary evidence. The court granted the plaintiff summary judgment, holding the defendants failed to introduce evidence in admissible form or show that the outstanding discovery was in the possession of the plaintiff.

The court further noted the defendants had the opportunity to conduct depositions while the motion was filed but failed to do so.

PRACTICE NOTE: When opposing a motion for

summary judgement, be sure the evidence used is not hearsay and is in admissible form.

TOPICS: Labor Law § 240, Fall from height,

Ladder, Sole proximate cause

MALTESE V. PORT AUTHORITY OF NEW YORK AND NEW JERSEY 199 A.D.3d 612 November 30, 2021

The plaintiff established a prima facie case violation of Labor Law § 240(1) by testifying that he fell when an unsecured extension ladder slid and collapsed under him. The Port Authority failed to raise a triable issue of fact as to whether the plaintiff was the sole proximate cause of the accident, even though they contended that scaffolds and man lifts were readily available on site and that the plaintiff was recalcitrant in failing to use them. The court found that while the testimony and witness affidavits suggest the availability of scaffolds and lifts, neither indicates that the plaintiff “knew he was expected to use them but for no good reason chose not to do so.”

PRACTICE NOTE: Simply having appropriate safe-

ty devices available is insufficient to establish a sole proximate cause defense when there is no evidence the plaintiff knew he had to use them and for no good reason chose not to.

TOPICS: Labor Law § 200, Means and methods,

Defective premises

Falling worker

ment, a plaintiff must not only show a violation of the industrial code but that the violation was a proximate cause of the accident.

TOPICS: Labor Law § 240(1), Ladder

DIMING WU V. 34 17TH ST. PROJECT LLC. 2021 NY Slip Op 06934 December 9, 2021

The plaintiff was injured when he rolled his ankle after stepping down from a platform onto an uneven surface created when flooring tiles were removed. The court examined whether Labor Law § 200 applied to the owner. The court categorized this accident as a dangerous premises case rather than a means and methods case and found that the owner failed to meet their burden of proof on establishing a lack of notice as to the condition of the floor.

The plaintiff was standing on an A-frame ladder on the fourth floor of a building drilling in a screw to seal a hole in a nine-foot-high ceiling.

He fell from the ladder into a garbage chute and was caused to fall to the basement of the building. The plaintiff’s motion for summary judgment on Labor Law § 240(1) was granted. The court noted the ladder was the improper safety device for the task and whether the plaintiff fell due to drill vibrations or the ladder moved was irrelevant because both versions fell within the ambit of Labor Law § 240(1).

PRACTICE NOTE: When examining a case under

PRACTICE NOTE: Even if more than one version

2021 NY Slip Op 06824 December 7, 2021

Labor Law § 200, the typical requirements as to lack of prior notice apply and the defendant must affirmatively show that they inspected the area of the accident prior to the incident and establish the condition was not present at that time.

of events exists, it will be insufficient to raise a triable issue of fact if they both fall under Labor Law § 240(1).

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

Construction-related activity violation

INGRATI V. AVALONBAY COMMUNITIES INC.

GRECA V. CHOICE ASSOC. LLC

2021 Slip Op 06921 December 9, 2021

The plaintiff was injured when a piece of wood placed as a temporary path shifted, causing him to fall through an open area between beams.

The plaintiff testified that he prevented himself from falling all the way down by grabbing a met-

While working at a construction site, the plaintiff was caused to trip or slip and fall on the sidewalk in front of the premises. The plaintiff moved for summary judgment on Labor Law § 241(6), using photographs and deposition testimony which showed broken concrete and brick, as well as lighter colored dried concrete

2021 NY Slip Op 06759 December 2, 2021

PRACTICE NOTE: On a motion for summary judg-

VASQUEZ V. CITY OF NEW YORK

TOPICS: Labor Law § 241(6), Industrial code TOPICS: Labor Law § 240(1), Summary judgment,

pieces. Further, the area was used as a work area as established by evidence showing cement trucks parked on the sidewalk to deliver cement for the foundation and other floors.

The court found that issues of fact existed as to whether the plaintiff was entitled to summary judgment on Labor Law § 241(6) premised upon NYCRR 23-1.7(e)(2) because the defendants came forth with evidence showing the sidewalk was not inherently dangerous.

KARANDISECKY V. CITY OF NEW YORK 2021 NY Slip Op 06950 December 14, 2021

The plaintiff was caused to slip and fall as he was entering a job site trailer on an accumulation of snow and ice on the narrow stairs leading into the trailer. He testified he was entering the trailer to examine a set of plans to prepare for the day’s work and the job site meeting. The court found issues of fact as to whether Labor Law § 241(6) applied. The court first noted an issue existed as to whether he was engaged in a construction-related activity. They next noted SPRING 2022 | 7

FIRST DEPARTMENT

that under NYCRR 23-1.7(d) the stairs may not be deemed a walkway, passageway, or platform.

PRACTICE NOTE: The first step to analyzing any

labor law case is to determine if the worker was engaged in a construction-related activity.

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

proximate cause, Contractors

BADZIO V. EAST 68TH ST. TENANTS CORP. 2021 NY Slip Op 07498 December 28, 2021

The plaintiff was injured when he was caused to fall 30 feet from the scaffolding he was dismantling. The plaintiff established liability under Labor Law § 240(1) by showing he was not provided with a safety line or appropriate place to attach his harness. Although the defendants argued the plaintiff was the sole proximate cause of his own injuries because he misused the safety devices he was provided with by failing to use the building stairs or elevator, the court found they did not raise an issue of fact. They specifically noted that since the plaintiff was not provided with appropriate safety devices in the first instance, the defense of sole proximate cause was not available. The court also found that two contractors were “contractors” under the labor law based upon their ability to control the work and provide for safety.

PRACTICE NOTE: The failure to provide safety de-

vices is going to trigger Labor Law § 240(1) liability.

TOPICS: Routine maintenance, Enumerated activity

CABAN V. 1691 FULTON AVE. HOUS. DEV. FUND CORP. 2021 NY Slip Op. 07499 December 28, 2021

The plaintiff was replacing a ballast in a light fixture and was caused to be injured. The court in a very short, succinct decision found that this was an act of routine maintenance and not an enumerated activity under any of the labor law sections.

PRACTICE NOTE: If the plaintiff is not blatantly en-

gaged in construction, demolition, repair, cleaning or painting, the activity should be scrutinized to determine whether the labor law applies.

8 | Labor Law Update

SECOND FIRST DEPARTMENT

TOPICS: Res judicata, Collateral estoppel,

Burden of proof, Authority to control or supervise BRAVO V. ATLAS CAPITAL GROUP 196 A.D.3d 627 July 21, 2021

The plaintiff, a construction worker, alleged that he was injured when a forklift operated by a coworker struck his foot. The plaintiff filed two lawsuits arising from the same incident, alleging violations of the labor law, one against the owners and a second against the contractor and other entities. The first action was dismissed on the merits as against the owner by way of summary judgment. In denying the contractor’s motion for summary judgment in the second action under theories of res judicata and collateral estoppel, the court found that since the contractor was not a party to the prior action and further, failed to establish a connection (as between the interests of itself and the owner in action one) sufficient to establish privity. The court further stated that “[privity] includes those who are successors to a property interest, those who control an action although not formal parties to it, those whose interest are represented by a party to the action.” As to the other defendant, the court dismissed the plaintiff’s claims, finding that the defendant did not have the authority to control or supervise the performance of the work at the premises.

PRACTICE NOTE: When two actions are filed with

respect to the same incident or occurrence, and the first action is dismissed on the merits, defendants in the second action seeking dismissal under the theory of res judicata, must establish a connection with the dismissed entity sufficient to establish privity.

TOPICS: Labor Law § 240, Ladder, Recalcitrant

worker, Sole proximate cause, Spoliation of evidence GARCIA V. EMERICK GROSS REAL ESTATE, L.P. 196 A.D.3d 676 July 28, 2021

The plaintiff allegedly was injured when a ladder he was using to perform his work in the boiler room suddenly shifted and caused him to fall. The ladder was supplied to the plaintiff by the defendant. In denying the plaintiff’s labor law claims, the court noted that there were issues of fact as to whether the plaintiff was a recalcitrant worker, based on testimony that functional ladders were available for the plaintiff to use on the day of the incident, that the plaintiff’s employer forbid employees from us-

ing ladders other than the ones it provides its employees, and that the plaintiff did not have express or implied permission to use the defendant’s ladder. Notwithstanding the foregoing, the court found that the defendant’s failure to preserve the ladder amounted to spoliation of evidence, warranting an adverse inference against the defendant at the time of trial.

PRACTICE NOTE: Failure to preserve key evidence

(e.g., mechanism of the incident/injury) may qualify as spoliation of evidence, warranting an adverse inference against a party at the time of trial.

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

Authority to supervise work, Industrial code violations KEFALOUKIS V. MAYER 197 A.D.3d 470 August 4, 2021

The plaintiff was working as a carpenter when he tripped over a bucket of compound in the middle of the room where he was working. The court granted summary judgment to the defendants and dismissed the plaintiff’s causes of action for Labor Law §§ 200 and 241(6). In dismissing the § 200 claim, the court found that the plaintiff was working with the bucket of compound over which he fell at the time of his accident. The plaintiff and his employer controlled the means and methods of where to store job materials, which included the bucket of compound. In dismissing the § 241(6) claim, the court found that 12 NYCRR 23-1.7(e)(2) did not apply because the bucket of compound at issue was among the tools the plaintiff was working with and was positioned for and consistent with the work the plaintiff was performing at the time of his accident.

PRACTICE NOTE: The court found that 12 NYCRR

23-1.7(e)(1) did not support a violation of the plaintiff’s § 241(6) claim, as the plaintiff was not injured in a “passageway” as required by the code section.

TOPICS: Authority to supervise work, Agency,

Homeowner’s exemption NAVARRA V. HANNON 197 A.D.3d 474 August 4, 2021

The plaintiff was injured while performing structural repairs on a property that consisted of a

single-family home. The court dismissed the plaintiff’s general negligence, Labor Law §§ 200 and 241(6) claims against the defendants, which consisted of two contractors and the property owner. In dismissing the claims against the contractor defendants, the court found that neither party was an owner, general contractor, or agent of the general contractor. Neither contractor performed work at the property while the plaintiff was working there. They also lacked the authority to supervise or control the plaintiff’s work. One contractor was only involved in completing building permits that were unrelated to the plaintiff’s work at the property.

The second contractor did perform work at the property, but only in the years before and after the plaintiff’s work. It was never working on the property at the same time as the plaintiff.

The court also dismissed the claims against the property owner. The evidence established that she was the owner of a single-family home and did not control the work performed by the plaintiff or his employer. She also lacked the authority to supervise or control the method or manner of the plaintiff’s work.

PRACTICE NOTE: Even though the property own-

er hired separate contractors to perform different aspects of the work, this did not make her a “general contractor,” as she was not responsible for supervising the construction project and enforcing safety standards.

TOPICS: Enumerated activity, Labor Law § 200,

Defective condition, Alterations

ALBERICI V. GOLD MEDAL GYMNASTICS 197 A.D.3d 540 August 11, 2021

The plaintiff was injured when he fell through a soffit while installing an electrical channel letter sign on the exterior of a building. The trial court granted summary judgment to the property owner on the plaintiff’s Labor Law §§ 200, 240(1), and 241(6) claims, and to the property’s lessee on the plaintiff’s Labor Law §§ 240(1) and 241(6) claims. The Appellate Division reversed.

With respect to the plaintiff’s §§ 240(1) and 241(6) claims, the court found that the defendants failed to establish that the plaintiff was not “altering” the subject building when he was engaged in installing the letter sign. In denying summary judgment on § 200 to the owner, the court noted that, because the accident was alleged to involve both defects in the premises as well as the equipment used at the worksite, the defendant was required to address the proof SPRING 2022 | 9

FIRST DEPARTMENT SECOND DEPARTMENT

applicable to both liability standards. The defendant in this case failed to establish that it lacked actual notice of the allegedly defective condition in the soffit of the subject building.

PRACTICE NOTE: In denying summary judgment,

the court noted that “altering” a building involves making a significant physical change to the configuration or compositions of the building or structure. Whether a physical change is significant or not depends on what effect it has on the physical structure.

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

Evidence

GRIEVE V. MCRT NORTHEAST CONSTR. 197 A.D.3d 623 August 18, 2021

The plaintiff fell from a ladder while installing pipe hangers in a ceiling at a construction site. The Appellate Division reversed the trial court’s granting of the defendants’ motions for summary judgment on the plaintiff’s Labor Law § 240(1) claim. In doing so, the court found that there was conflicting witness testimony as to whether a violation of Labor Law § 240(1) caused the plaintiff to fall. One witness saw that a leg of the ladder involved in the plaintiff’s fall was situated in a hole in the floor. Another witness heard the plaintiff state to paramedics that he fell off the ladder after becoming dizzy.

This conflict created an issue of fact sufficient to deny the motions.

PRACTICE NOTE: The court noted that evidence of

an accident, standing alone, does not establish either a violation of Labor Law § 240(1) or causation.

PRACTICE NOTE: The appellate decision did not

discuss the underlying facts that formed the basis for dismissing the plaintiff’s labor law claims. However, the trial court’s decision notes the defendant owner did not have any knowledge that the plaintiff would be entering the subject property and performing work for the tenant prior to the accident.

TOPICS: Labor Law § 200, Supervision and

control, Dangerous conditions

UHL V. D’ONOFRIO GEN. CONTRS., CORP 197 A.D.3d 770 August 25, 2021

The plaintiff was injured when he was shocked by static electricity caused by spray insulation foam that had been applied on the roof of a building. The plaintiff then fell where a portion of stairs was missing. The plaintiff brought an action for common law negligence and Labor Law § 200. The subcontractor defendant who applied the spray insulation brought a thirdparty action against the manufacturer of the spray foam. The trial court denied the subcontractor defendant’s motion for summary judgment dismissing the plaintiff’s complaint. The Appellate Division reversed and found that the subcontractor defendant was entitled to summary judgment on both Labor Law § 200 and common law negligence. The subcontractor defendant established that it did not have the authority to supervise or control the work area where the plaintiff’s accident occurred, and that it did not create any dangerous condition which caused the plaintiff’s accident. Further, the missing steps that the plaintiff fell from had been removed by another contractor.

PRACTICE NOTE: The court’s decision that the

TOPICS: Labor Law § 240(1), Owners

ESTICK V. MYRTIL 197 A.D.3d 693 August 25, 2021

The plaintiff was injured when he fell from a ladder while installing cable services for a tenant occupying a property owned by the defendant.

The plaintiff subsequently brought an action against the property owner for common law negligence and Labor Law §§ 200, 240(1), and 241(6). The court granted the defendant’s motion for summary judgment and dismissed the plaintiff’s labor law claims. In doing so, the court found that there was an insufficient nexus between the plaintiff’s work and the defendant.

10 | Labor Law Update

subcontractor defendant did not have the authority to supervise or control the work was based on a fact-specific analysis. The court noted that the subcontractor defendant established that it was not authorized to direct the general contractor’s work. Further, all of the warning signs pertaining to the spray foam and potential shock were placed by the general contractor. Finally, emails from the spray foam manufacturer about the necessity for warning signs and other safety precautions were sent to the general contractor and others, but not the subcontractor defendant.

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

Labor Law § 240(1), Third-party contractual liability, Homeowner’s exemption SANTIBANEZ V. NORTH SHORE LAND ALLIANCE, INC. 197 A.D.3d 1123 September 1, 2021

The plaintiff was injured when he fell from a ladder while he was trying to remove sheet metal covering a chimney that was preventing the ventilation of smoke. A defendant contractor had directed a subcontractor to seal the chimney without alerting the other contractors that the fireplace at issue was rendered inoperable due to the inability to ventilate smoke. The Second Department reversed the lower court’s decision granting summary judgment to the contractor and held that there were issues of fact as to whether it launched a force or instrument of harm such that it could be said to have assumed a duty of care to the plaintiff. The court also held that the contractor failed to establish prima facie that the plaintiff’s act of climbing the ladder to remove the sheet metal was so extraordinary, not foreseeable, or independent of their conduct as to constitute a superseding act to break the causal nexus and establish their conduct was not a substantial factor in causing the accident. The court further held that the defendant homeowners established that they did not exercise any authority to supervise or control the performance of the plaintiff’s work or of any contractor on the project. Thus, the homeowner’s exemption shielded them from liability.

PRACTICE NOTE: A contractual obligation, by it-

self, will generally not give rise to tort liability in favor of a third party unless the contractor assumed a duty of care by failing to exercise reasonable care in the performance of its work and launches a force or instrument of harm. Under the homeowner’s exemption, owners of a oneor two-family dwelling used as a residence are exempt from liability under Labor Law §§ 240(1) and 241(6) unless they directed or controlled the work being performed.

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

Labor Law § 240(1), Common law negligence, Homeowner’s exemption KHAN V. KHAN

197 A.D.3d 1165 September 15, 2021

The plaintiff was the administrator of a decedent’s estate. While cleaning the gutters of a

SECOND FIRST DEPARTMENT

house owned by the defendant, the decedent was injured falling from the roof allegedly due to slippery moss, and subsequently died. The Second Department held that the homeowner was properly granted summary judgment as to the Labor Law §§ 241(6) and 240(1) claims because he established that he was the owner of a one-family dwelling and did not direct or control the work being performed. The defendant further established entitlement to summary judgment as to Labor Law § 200 and common law negligence because he demonstrated that he did not create or have actual or constructive notice of the allegedly dangerous condition.

decision and its potential collateral estoppel impact. The Second Department further held that the defendants were properly awarded summary judgment based on collateral estoppel.

It was determined and upheld by the Workers’ Compensation Board that the accident claimed by the plaintiff did not occur or did not occur in the described manner as would cause injury.

That finding was material and pivotal to the core viability of any personal injury action brought by the plaintiff for the same incident. Accordingly, the plaintiff was barred by collateral estoppel from arguing the core of his case and summary judgment was properly granted.

PRACTICE NOTE: Where a premises condition is at

PRACTICE NOTE: This issue comes up quite fre-

issue, a property owner is liable under Labor Law § 200 when the owner created the dangerous condition causing injury or when the owner failed to remedy a dangerous or defective condition of which he had actual or constructive notice.

TOPICS: Collateral estoppel, Leave to amend

quently. A practitioner should pay close attention to the workers’ compensation proceeding.

A plaintiff’s claim may be barred by the doctrine of collateral estoppel when there is a prior determination from an administrative board involving the same subject matter and that subject matter is material and pivotal to the core viability of the claim.

pleadings, Workers’ compensation

LENNON V. 56TH AND PARK (NY) OWNER, LLC 199 A.D.3d 64 September 15, 2021

The plaintiff alleged he was injured when the hoist elevator he was riding made multiple and sudden unanticipated rises and drops. He filed a workers’ compensation claim. After a hearing where the plaintiff was represented by counsel and testified, the administrative law judge denied the workers’ compensation claim based on a determination that the alleged accident did not actually happen in any manner related to the claimed injury. The Workers’ Compensation Board affirmed the findings and determination. The plaintiff commenced this action for common law negligence and alleging labor law violations. After the note of issue was filed, the defendants moved to amend their answer to include an affirmative defense of collateral estoppel and upon leave to amend for summary judgment dismissing the complaint based on collateral estoppel. The Second Department upheld the lower court’s decision granting leave to amend the answer to include the affirmative defense of collateral estoppel. The court held that the proposed amended pleading was not palpably insufficient or devoid of merit, did not cause surprise or undue prejudice to the plaintiff, and the lower court did not improvidently exercise its discretion in granting leave to amend.

The plaintiff was aware of the workers’ compensation hearing, had personally participated, and was represented by counsel. He was aware of the

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

Labor Law § 200, Construction manager, Statutory agent, Contractual indemnification JIN GAK KIM V. KIRCHOFF-CONSIGLI CONSTR. MGT. LLC

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

Falling worker

MASMALAJ V. NEW YORK CITY ECONOMIC DEV. CORP. 197 A.D.3d 1292 September 29, 2021

The plaintiff was a carpenter using a Baker scaffold to install ceiling tracks. He was injured when he attempted to move the scaffold while standing on it and the scaffold toppled over.

Afterwards, the plaintiff noticed that one of the wheels was detached. The Second Department upheld the grant of summary judgment as to the plaintiff’s Labor Law § 240(1) claim because he was performing work within the ambit of the statute and his injuries were proximately caused by the absence or inadequacy of a safety device enumerated in the statute. The plaintiff demonstrated that he was directed to work on the scaffold, it was the only scaffold available, he was working without assistance, and that he noticed a wheel was detached after it toppled. An affidavit from his foreman stated that he observed the wheel had become detached and that the wheels were kept in place by wire rather than nuts or bolts.

PRACTICE NOTE: A defendant faces liability under

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

197 A.D.3d 1289 September 29, 2021

The plaintiff was injured when he was struck by a piece of falling lumber. The Second Department held that the defendant construction manager was properly denied summary judgment as to the plaintiff’s Labor Law §§ 240(1), 241(6), and 200 claims because it failed to establish that it did not have the ability to control the activity that brought about the plaintiff’s injury or the ability to establish and maintain safety procedures at the worksite at the time of the accident.

The court also held that the construction manager defendant was not entitled to summary judgment on its contractual indemnification claim against its subcontractor, the plaintiff’s employer, because it did not eliminate issues of fact as to whether it was free from negligence in the happening of the plaintiff’s accident.

PRACTICE NOTE: A construction manager of a

worksite will be deemed a statutory agent of the property owner or general contractor and be subject to liability under Labor Law §§ 240(1), 241(6), and 200 where the party had the ability to control the work that brought about the plaintiff’s injury.

TOPICS: Labor Law § 241(6), Leave to amend,

Safety equipment, Industrial code violation

PALAGUACHI V. IDLEWILD 228TH ST., LLC 197 A.D.3d 1321 September 29, 2021

The plaintiff was installing flooring by applying adhesive while on his knees when his right knee pad that he alleged was broken shifted and caused him to fall and sustain injury. The defendant owner moved for summary judgment dismissing the Labor Law § 241(6) claim. The plaintiff cross moved for leave to amend the bill of particulars to allege violation of Industrial Code 12 NYCRR 23-1.5(c)(3). This industrial code provides that all safety devices and equipment shall be kept in sound and operable condition and shall be immediately repaired, restored or removed from the job site if damaged. The Second Department upheld the lower court’s decision granting the plaintiff leave to amend holding that the amendment did not prejudice the defendants and did not involve new factual allegations or raise new theories of liability.

SPRING 2022 | 11

FIRST DEPARTMENT SECOND DEPARTMENT

The court also held that the defendant owner’s motion for summary judgment was properly denied because it failed to demonstrate that 12 NYCRR 23-1.5(c)(3) was inapplicable or that its alleged violation was not a proximate cause of the plaintiff’s injuries. The records included testimony that floor installers were required to use knee pads and that the plaintiff had told his employer that he needed new kneepads two months prior to the accident.

PRACTICE NOTE: Labor Law § 241(6) imposes

upon all general contractors and owners and their agents non-delegable duties to provide workers with proper safety devices and adequate protection.

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

Labor Law § 241-a

RIVAS-PICHARDO V. 292 FIFTH AVE. HOLDINGS, LLC 198 A.D.3d 826 October 13, 2021

The plaintiff, a laborer, was injured while clearing debris from the bottom of a garbage chute.

Another laborer did not hear directions to stop dumping debris down the chute and dumped the contents of a wheelbarrow into the chute.

The plaintiff was struck by ricocheting bricks from the wheelbarrow. The Second Department held that the plaintiff was entitled to summary judgment on his Labor Law § 240(1) claim on the grounds that the plaintiff’s injuries were caused by debris descending from a higher floor and ricocheting into the area that the plaintiff was working. Labor Law § 240(1) was implicated because the plaintiff’s injuries were caused by the inadequacy of the chute to protect him from the elevation-related risk of disposal of debris in the chute or the failure to employ other safety devices for removal of the debris. The defendant was not entitled to dismissal of the Labor Law § 241(6) claim because it failed to demonstrate that the industrial code sections that the plaintiff alleged violation did not apply to the facts of the case or that they were not a proximate cause of the plaintiff’s injuries. The court also found that the defendant failed to establish that Labor Law § 241-a, “Protection of workmen in or at elevator shaftways, hatchways and stairwells,” was inapplicable to the facts or that the alleged violation was not a proximate cause of the plaintiff’s damages.

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

PRACTICE NOTE:

12 | Labor Law Update

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

Unsafe conditions, Slipping hazards FONCK V. CITY OF NEW YORK 198 A.D.3d 874 October 20, 2021

The plaintiff, a laborer, was engaged in placing and tying rebar in a grid pattern on top of plastic sheeting. While retrieving his pliers a few feet away, the plaintiff alleges that he fell by tripping over a pipe that was concealed under plastic sheeting in violation of 12 NYCRR 23-1.7(d). The Supreme Court properly concluded that the area where the plaintiff fell did not constitute a passageway as contemplated by 12 NYCRR 23-17(e) (1) and that 12 NYCRR 23-17(e)(2) does not apply to materials that are “intentionally installed and were a ‘permanent and an integral part of what was being constructed.’” However, the Appellate Division found that the defendants failed to establish their prima facie entitlement to summary judgment by not eliminating triable issues of fact as to whether the placement of the subject plastic sheet on top of, as opposed to beneath, the installed pipe was a hazard that was “part of, or inherent in, the work the injured plaintiff was hired to perform.”

PRACTICE NOTE: A “beach” or “sprinkler” area of a

pool does not constitute a passageway as contemplated by 12 NYCRR 23-17(e)(1). Similarly, rebar, piping, vapor barriers, and plastic sheeting of an “in-progress” construction site do not constitute “debris” or “scattered” materials under 12 NYCRR 23-17(e)(2) when they have been “intentionally installed and were a ‘permanent and integral part of what is being constructed.’”

Additionally, the duty of an owner, general contractor, and their agents to provide employees with a safe place to work does not extend to “hazards that are part of, or inherent in, the very work the employee is to perform or defects the employee is hired to repair.”

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

Enumerated activity, Demolition, Alterations HENSEL V. AVIATOR FSC, INC. 198 A.D.3d 884 October 20, 2021

The plaintiff was assisting in loading heavy soccer boards into the back of a box truck where a forklift was being used. The boards had been used to form the walls for an indoor soccer field and were between 6 and 12 feet long, weighing more than 100 pounds each. The plaintiff was standing on the ground next to the forklift when

one of the boards slid off the forklift and struck the plaintiff in the head. The Supreme Court correctly concluded that the disassembly and removal of boards from the soccer field was “a partial dismantling of a structure” constituting a “demolition” within the meaning of Labor Law § 240(1). Likewise, that activity changed the configuration of the structure enough to also qualify as an “alteration” within the meaning of Labor Law § 240(1). The hauling away of the boards that were removed by the defendant was an act “ancillary” enough to the demolition and alteration such that it is protected under Labor Law § 240(1). Furthermore, a portion of the forklift had been removed so that it could fit through a certain doorway on the premises and that the modification caused the forklift to be without certain safety devices, including “load guides and/or guide rails,” which could have been used to “constrain the boards as they were moved from elevated forks into the truck.”

These arguments established, prima facie, the existence of a hazard contemplated under Labor Law § 240(1) and that the failure to provide an adequate safety device caused the plaintiff to sustain an injury as a result of that hazard.

PRACTICE NOTE: Falling object liability under La-

bor Law § 240(1) is not limited to cases in which the falling object is in the process of being hoisted or secured, but rather may also be imposed where an object or material that fell causing injury was any “load that required securing for the purposes of the undertaking at the time it fell.”

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

TORRES V. NEW YORK CITY HOUS. AUTH. 199 A.D.3d 852 November 10, 2021

The plaintiff was performing asbestos abatement work when he stepped into a gap between two scaffolds, resulting in a 15 foot fall to the ground. The plaintiff failed to address whether the subject scaffold had rails, possible tie-off points for a harness, or some alternative fall protection. The plaintiff’s motion relied solely upon his Gen. Mun. Law § 50-h hearing testimony, wherein he stated that he “moved [his] foot” to the left, causing him to step off of the scaffold and into an “empty space,” and that “there was nothing there because [he] stepped on it and thought it was something solid.”

PRACTICE NOTE: A fall from a scaffold, in and

of itself, does not establish that proper protection was not provided in accordance with Labor Law § 240(1).

SECOND FIRST DEPARTMENT

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

Labor Law § 200

GUAMAN V. 178 CT. ST., LLC 2021 N.Y. Slip Op 06676 December 1, 2021

The plaintiff, a steel worker, fell through an uncovered opening at a stairwell in the unfinished second floor. The plaintiff’s motion for summary judgment under Labor Law §§ 200, 240(1), and 241(6) was denied because he failed to eliminate triable issues of fact as to whether adequate safety devices were provided and the absence thereof was a proximate cause of the subject accident.

PRACTICE NOTE: A plaintiff must establish that

there are no triable issues of fact on all elements of the labor law to be successful on a dispositive motion.

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

Ladder, Contractual indemnification, Common law indemnification CANDO V. AJAY GEN. CONTR. CO. INC. 2021 N.Y. Slip Op 06831 December 8, 2021

The plaintiff was injured while descending an extension ladder which was placed between the first and second floor of single-family home when the staircase was removed. The plaintiff brought suit based upon the labor law against the owner and general contractor. The general contractor in turn brought a third-party action against the carpentry subcontractor. The plaintiff then brought a second action against the carpentry subcontractor also alleging violations of the labor law. The carpentry subcontractor moved for summary judgment to dismiss the direct action brought against them alleging they were neither an owner nor contractor under the labor law and to dismiss the contractual indemnification and common law indemnification claims brought against them in the third-party action. The court denied summary judgment to them in both actions. The court found issues of fact as to whether the carpentry subcontractor was a statutory agent of the owner or a contractor under the labor law since their contract conveyed many of the rights that a general contractor would customarily have. Their motion on the third-party action was denied because they failed to establish that they were not negligent since there was evidence that they may have set up the ladder

and they failed to show that the accident did not “arise out of their negligent act or omission” under the contract.

PRACTICE NOTE: A contractual obligation, on its

own, will generally not give rise to tort liability in favor of a third party. Further, a subcontractor may be held liable for negligence, where a violation of Labor Law § 200 exists, where the work it performed created the condition that caused the plaintiff’s injury, even if it did not possess any authority to supervise and control the plaintiff’s work or work area.

TOPICS: Labor law, Covered work, Enumerated

activity

SEEM V. PREMIER CAMP CO., LLC 2021 N.Y. Slip Op 07018 December 15, 2021

The plaintiff, a dump truck driver, was transporting approximately 60,000 pounds of gravel to a property owned by the defendants to be used to resurface a parking lot at the property. The plaintiff alleges that he was injured when his truck tipped over while he was raising the bed of the truck to unload the gravel. The gravel allegedly caused the rear tires to pop and resulted in the truck tipping over. The Appellate Division found that the plaintiff was not engaged in the erection, demolition, reparation, alteration, painting, cleaning, or pointing of a building or structure when he was injured and that he was not exposed to any elevationrelated risk that safety devices prescribed by § 240(1) would have prevented.

PRACTICE NOTE: The court finds that delivery of

materials to a worksite is not considered “covered work” within the meaning of the statute.

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

Labor Law § 200, Homeowner’s exemption, Direction, Supervision, Means and methods VENTER V. CHERKASKY 200 A.D. 3d 392 December 15, 2021

The plaintiff, a painting contractor, was hired by the defendants to paint and refinish cabinets and a kitchen island at their home. An explosion occurred while the plaintiff was applying lacquer thinner to remove paint from the kitchen island. The lower court granted the defen-

dant’s motion to dismiss the plaintiff’s claims, finding that the owners of one- and two-family dwellings are exempt from labor law, unless they directed the plaintiff’s work. The Appellate Division reversed that finding, holding that the defendants failed to establish that they did not direct or control the method and manner of the plaintiff’s work. The court highlighted testimony from the plaintiff stating that the homeowner instructed him as to the manner in which renovation work was to be done. At the time of accident, the plaintiff was applying lacquer thinner to a kitchen island as opposed to sanding off paint as the plaintiff had done to kitchen cabinets on the day prior to the accident. He was doing so because one of the owners directed him to use the product in question, stating that she did not want any more dust at the premises. The court held that the premises’ conditions were at issue, and that the owner did not establish that they lacked actual or constructive notice of the dangerous condition that caused the accident.

PRACTICE NOTE: When defending owners of a

one- or two-family residence in claims under the labor law, be sure to demonstrate the absence of any action or omission on the part of the defendants which caused or contributed to the plaintiff’s injuries. Note that any condition with regard to the premises that contributed to the plaintiff’s accident may give rise to a viable cause of action under Labor Law § 200.

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

Routine maintenance, Enumerated activity TEODORE V. C. W. BROWN, INC. 200 A.D. 3d 999 December 22, 2021

The plaintiff was injured when attempting to replace the ballast of an inoperable light in a building. The plaintiff was standing on a ladder attempting to fix the inoperable light fixture when he lifted the cover of the electrical box and received an electric shock. The court upheld dismissal of the action, finding that the plaintiff’s activities at the time of the incident constituted routine maintenance, as the work involved replacing components that required replacement in the course of normal wear and tear. In so holding, the court found that the plaintiff’s routine activities were not within the ambit of Labor Law § 241(6). Finally, the court dismissed the plaintiff’s claims for liability under Labor Law § 200, and found that the defendants

SPRING 2022 | 13

FIRST DEPARTMENT SECOND DEPARTMENT

demonstrated that as against each of them there was no evidence that they supervised, directed, or controlled the plaintiff’s work.

PRACTICE NOTE: This case upholds the right of

defendants to summary judgment under the labor law where the activity in question constitutes the type of routine maintenance ordinarily performed at the premises, regardless of whether the plaintiff’s injuries arise from a height-related event.

14 | Labor Law Update

THIRD FIRST DEPARTMENT

TOPICS: Labor Law § 200, Labor Law § 241(6), 12

NYCRR 23-1.30 – sufficient illumination

EDWARDS V. STATE UNIV. CONSTR. FUND 196 A.D.3d 778 July 1, 2021

The plaintiff was injured during a renovation project at a SUNY building when he hit his head on a wooden beam supporting a scaffold within a stairwell, thereafter causing the plaintiff to fall down and sustain injuries. At the time of the incident, the plaintiff was on his way to work on the roof, which could only be accessed by the stairwell where the beam was located. The defendants’ motion to dismiss Labor Law § 200 was denied based on testimony that the defendants were in and out of the project daily; looked at the beam prior to the incident; “ducked” under the beam to pass through the stairwell; and that the defendants had “general oversight” of the project. There were also issues of fact with regard to supervisory control and notice of the low-hanging beam in order to impose liability under § 200 and common law negligence.

PRACTICE NOTE: Where a plaintiff’s injury derives

from an unsafe work practice, an owner or general contractor may be found liable only upon a showing of supervisory control and actual and/ or constructive notice of the unsafe manner of performance that brought about the accident.

TOPICS: Labor Law § 240(1), Ladder

BEGEAL V. JACKSON 197 A.D.3d 1418 September 16, 2021

The plaintiff fell 12 feet to the ground while standing on an aluminum ladder in the course of erecting/constructing a ventilation stack. He placed an extension ladder in an area that had snow on the ground and raised the extension part of the ladder to reach the building where the ventilation stack was to be erected. There were no problems with the ladder; the ladder was “secure” prior to falling. Prior to falling, he shifted his position while on the ladder and it shifted on the ground. In granting the plaintiff’s partial summary judgment pursuant to Labor Law § 240(1), the court held that the defendants failed to demonstrate that there was no statutory violation pursuant to labor law because the plaintiff’s testimony regarding the adequacy of the ladder (i.e. no defective condition of the ladder) is not a question of fact when the evidence in the record establishes that the ladder “slips or otherwise fails to perform its function of supporting the worker.”

PRACTICE NOTE: Even where there is no evi-

dence that a ladder is defective, liability can be imposed under Labor Law § 240(1) where the evidence supports that a ladder collapses, slips or otherwise fails to perform its function of supporting a worker and his/her materials, and absent evidence that the worker was the sole proximate cause for such that causes injury.

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

Structure, Routine maintenance, Repairs, Enumerated activity

EHERTS V. SHOPRITE SUPERMARKETS, INC. 199 A.D.3d 1270 November 24, 2021

The plaintiff, a plumber, fell from a ladder while turning off water connections. The defendantsupermarket complained of low water pressure. Upon inspecting the premises, the plaintiff suspected a potential water break which required turning off the store’s water connections, including the water heater that was not accessible at floor level. To access the water heater, the plaintiff placed a ladder against inventory shelves, and then stepped from the ladder onto a shelf, whereafter the shelf detached from the wall and the plaintiff fell to the ground and sustained injuries. The defendant moved for summary judgment, which was denied on the grounds that the shelf was considered a defective safety device covered by the statutory language of § 240(1), and that the plaintiff’s conduct in attempting to access the water heater was also protected. More specifically, in order to access the above-level water heater, it was found necessary for the plaintiff to place a ladder against the shelf and step over the shelf to reach the heater’s platform. Thus, the configuration of the heater constituted a structure embraced by Labor Law § 240(1). Additionally, the court held that the plaintiff’s act of performing a preventative maintenance task due to an isolated and unexpected water event, as opposed to a routine maintenance call, established that the plaintiff was engaged in repair work at the time of the incident, which was protected by Labor Law § 240(1).

PRACTICE NOTE: Whether an item is or is not a

“structure” covered by Labor Law § 240(1) is fact specific and must be determined on a case-bycase basis. Also, repair work for isolated and unexpected events may implicate the protections afforded by Labor Law § 240(1), whereas acts of routine maintenance work involving replacing components in the course of normal wear and tear do not.

TOPICS: Common law negligence, Covered

person, Excavation work

BUCKLEY V. 18 E. MAIN ST., LLC 199 A.D. 1283 November 24, 2021

The plaintiff, a pedestrian, was walking along the sidewalk near a gas station when she allegedly stepped on a rock, causing her to fall and injure her ankle. Earlier that day, the defendantexcavator had been performing ongoing excavation work to the gas station, which involved removing dirt and rocks from the ground to later fill with new material. The plaintiff commenced a personal injury action against the defendant for claims of common law negligence and violations of Labor Law §§ 200 and 241. The plaintiff’s labor law claims were dismissed by the lower court. The plaintiff appealed the part of the defendant’s motion that dismissed her common law negligence claims, and the court reversed, finding that circumstantial evidence established that the defendant’s earlier acts of digging up thousands of rocks in the area where the plaintiff fell was sufficient to raise an issue of triable fact related to whether its performance of excavation work launched a force or instrument of harm against the plaintiff.

PRACTICE NOTE: Labor law does not apply to a

non-contractual plaintiff who is merely walking within the vicinity of a construction site and becomes injured. Rather, common law negligence applies to such a scenario, and liability can be imposed upon a subcontractor based on circumstantial evidence that its work “launches a force or instrument of harm” that caused the alleged injury.

TOPICS: Labor Law § 200, Labor Law § 240, Labor

Law § 241(6), Homeowner’s exemption CAPUZZI V. FULLER 200 A.D.3d 1448 December 23, 2021

The defendant, a property owner, was granted summary judgment pursuant to Labor Law §§ 200, 240, and 241, based upon the finding that the defendant satisfied his burden of showing that the homeowner’s exception applied. In coming to its decision, the court considered, inter alia, the property owner’s sworn affidavit that although the defendant visited the construction site where the plaintiff was injured from time to time; observed the progression of the construction work; and paid the plaintiff, the defendant did not exert supervisory control SPRING 2022 | 15

FIRST DEPARTMENT THIRD DEPARTMENT

over the plaintiff; did not direct the plaintiff’s work at the site; did not arrange for any of the equipment at the site; and further, was not present at the site when the incident involving the plaintiff occurred. The plaintiff attempted to defeat summary judgment by submitting evidence that the defendant had discussions with the plaintiff about work orders, logistics of the project, materials, and architectural drawings; that the defendant “checked in” with the plaintiff on a daily basis; that the defendant told the plaintiff where to park at the site and how to lock a gate at the end of the day; that the defendant moved various windows and stairs, and applied tape to plywood at the site; and the defendant provided general directions and instructions in a conclusory manner as to the plaintiff’s carpentry work. Notwithstanding the plaintiff’s contentions, such submitted evidence was insufficient to establish that the defendant directed or controlled the manner of the plaintiff’s specific work that caused injury.

PRACTICE NOTE: A property owner may defeat li-

ability imposed by labor law through the homeowner’s exception, which can be established by evidence that the defendant did not exercise supervisory control or authority over the activity which brought about the injury, and where conclusory evidence is insufficient to support such a finding to the contrary.

TOPICS: Labor Law § 240(1), Repairs, Routine

maintenance, Enumerated activity

RUSSO V. VAN DALE PROPS., LLC 200 A.D.3d 1470 December 23, 2021

The plaintiff, a machine equipment operator, was injured after an overhead door located at the defendant-owner’s property closed in on him while walking outside to pull on a cable to dislodge the door, causing him to sustain injuries. Prior to the incident at issue, the door had become damaged in the course of a coworker’s performance at the site. The damage was identified and another co-worker made an unsuccessful attempt to repair the door so that it could be shut to ensure that the property was secured at the end of the work day. The Appellate Court found that the lower court properly denied the defendant’s cross motion for summary judgment, which moved for the dismissal of Labor Law § 240(1). The defendant argued that the plaintiff was not a worker covered by the language in § 240(1), and that at the time of the injury, the plaintiff was engaged in routine 16 | Labor Law Update

maintenance as opposed to requisite repair work. However, the court was unconvinced. In reviewing the record, the court reasoned that § 240(1) indeed imposed liability on the defendant-property owner because (1) the plaintiff was permitted to work on the premises through his employment with the subcontractor who leased the property from the defendant; and (2) the plaintiff was engaged in conduct that constituted an emergency repair to an acutelydamaged door that was necessary to secure the defendant’s property, as opposed to mere routine maintenance work.

PRACTICE NOTE: A property owner who does not

itself hire a plaintiff to perform work at the worksite is irrelevant for a finding of liability under Labor Law § 240(1). Also, in determining whether § 240(1) applies to the incident at issue, the court will look for fact-specific evidence to distinguish repairs from routine work, including factors such as the type of work that was performed and the need for such work performance.

FOURTH FIRST DEPARTMENT

TOPICS: Contractual indemnification

TANKSLEY V. LCO BLDG. LLC 196 A.D.3d 1037 July 9, 2021

The plaintiff was working on a roof when he fell through a skylight opening that was covered with plywood which had been placed over it.

The defendants commenced a third-party suit against the framing subcontractor who performed work to the skylight, including placing the piece of plywood over the opening, arguing that it was entitled to contractual indemnification pursuant to an agreement executed between them. Specifically, the indemnification provision provided that the third-party defendant agreed to indemnify the defendant/ third-party plaintiff against all claims “for or on account of any injury to a person ... which may arise (or which may have alleged to have risen) out of or in connection with performance of contract work [by the third-party defendant],” but it did not specifically provide indemnification upon a finding that the third-party defendant was negligent or at fault. The court determined that the plaintiff’s incident arose out of or in connection with the performance of the third-party defendant’s work to the skylight, the agreement involving the indemnification provision was executed after the plaintiff’s accident occurred, and the indemnification provision was enforceable because the parties intended that it would apply retroactively when they entered into it. Thus, the defendant/third-party plaintiff was entitled to contractual indemnification.

PRACTICE NOTE: An indemnification agreement

within a contract that is executed after a plaintiff’s accident may only be applied retroactively where it is established that: (1) the agreement was made as of a date prior to the accident; and (2) the parties intended for the agreement to apply as of that prior date.

TOPICS: Labor Law § 240(1), Routine maintenance

FUHLBRUCK V. 3170 DELAWARE 196 A.D. 3d 1090 July 9, 2021

The plaintiff, a store manager, sustained injuries while cleaning the store’s exterior windows at the direction of his manager. The plaintiff was provided a squeegee and told to extend its reach using a broom handle. The court found that the defendants were entitled to summary judgment under the New York State Labor Law. The cleaning was of the type that would be

conducted routinely, i.e., on a regular schedule and with relevant frequency in a retail setting.

The court rejected the plaintiff’s argument that, because he had cleaned the exterior windows only once in the four years preceding the accident, the accident was not “routine maintenance.” The court stated that the generic nature of the cleaning task rather than the frequency with which it was performed is determinative.

PRACTICE NOTE: A routine activity is not covered

under the labor law. It is the nature of the activity and not necessarily the frequency with which it is performed that determines whether the activity is “routine.” In this case, the elevationrelated risk is comparable to that encountered in ordinary domestic or household cleaning.

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

12 NYCRR 23-1.21(b)(3)(iv), Industrial code violation HARRIS V. TESMER BLDRS., INC. 197 A.D.3d 911 August 26, 2021

The plaintiff provided unrebutted testimony that he fell and sustained injuries from a ladder that lacked the appropriate amount of feet. The plaintiff was granted partial summary judgment on liability pursuant to Labor Law §§ 240(1) and 241(6), finding that the ladder was not placed so as to give proper protection to the plaintiff. On appeal, the defendant failed to meet its burden that the plaintiff’s own conduct, rather than a violation of § 240(1), was the sole proximate cause of the incident. Similarly, but without being expounded upon by the court, the defendant failed to meet its burden to overcome imposing liability pursuant to § 241(6), finding that the plaintiff sufficiently established that the ladder at issue violated 12 NYCRR 23-1.21(b)(3)(iv), which provides regulations for leaning ladders at a worksite.

PRACTICE NOTE: Unrebutted testimony that a

ladder lacking the appropriate amount of feet slipped out from under the plaintiff is prima facie evidence when establishing a claim under §§ 240(1) and 241(6).

TOPICS: Labor Law § 240(1), Expert affidavit, Sole

proximate cause

MILLER V. REROB, LLC 197 A.D. 3d 979 August 26, 2021

The plaintiff, a laborer, was injured while rigging a metal Z sheet to a crane and signaling the crane operator to hoist the Z sheet from his position on top of a stack of such sheets, even though a 600 lb. metal corner piece was lying unsecured on top of the Z sheet. The corner piece fell and struck the plaintiff in the head.

The Appellate Division upheld an award of summary judgment based on expert affidavits submitted by the plaintiff. The experts opined that the corner piece should have been removed with a crane immediately after the stack of Z sheets was off-loaded from a flatbed truck.

Although the defendants argued that the plaintiff’s negligence was the sole proximate cause of the loss, the court found that the plaintiff’s negligence, at most, established contributory negligence, which does not operate as a complete bar of claim under Labor Law § 240(1).

PRACTICE NOTE: This case highlights the impor-

tance of obtaining the proper expert affidavit to defeat an expert proffer which establishes violations of proper practice with respect to the loading or unloading of construction materials.

TOPICS: Labor Law § 240(1), Elevation differential

BRANCH V. 1908 WEST RIDGE ROAD, LLC 199 A.D. 3d 1352 November 12, 2021

The plaintiff was injured while lifting a large metal structure six to eight inches off the surface of a roof so that co-workers could apply new roofing materials underneath. Reversing the award of summary judgment under New York State Labor Law § 240(1), and granting such motion for summary judgment to the defendants, the court held that Labor Law § 240(1) only applies where the plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.

The court further held that Labor Law § 240(1) only protects workers where their injuries result from harm directly flowing from the application of the force of gravity to an object or person. The court noted that the plaintiff’s injuries resulted from a routine workplace risk, and his injuries were tangentially related to the effects of gravity upon the structure he was lifting, not SPRING 2022 | 17

FIRST DEPARTMENT FOURTH DEPARTMENT

caused by the limited type of elevated-related hazards encompassed by Labor Law § 240(1).

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

PRACTICE NOTE: The decision stands for the

KELLEY V. EPISCOPAL CHURCH HOME AND AFFILIATES, INC.

proposition that not every injury connected in some manner to gravity gives rise to a cause of action under Labor Law § 240(1).

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

Supervision, Direction, Control

ABREU V. FROCIONE PROPERTIES, LLC 199A.D. 3d 1452 November 19, 2021

The plaintiff claimed violation of Labor Law §§ 241(6) and 200 against various defendants for injuries incurred during the construction of a food distribution warehouse. The plaintiff and his co-worker were installing a pallet rack shelving system when an unassembled segment of the rack tipped over onto his legs. The court found that 12 NYCRR 23-2.1(a)(1) relating to “storage of material and equipment” did not apply because, at the time of accident, the rack segments that caused the plaintiff’s injuries were in use and not in storage. The court upheld the lower court’s dismissal of summary judgment under Labor Law § 200 against the ownership defendants in that the accident resulted from the manner in which the work was performed, not any dangerous condition on the premises. The court further held that those defendants did not direct or control the work of installing racks but, rather, merely exercised general supervision of the worksite, which does not, in and of itself, afford the plaintiff a viable claim for common law negligence under Labor Law § 200.

PRACTICE NOTE: A court will look at the circum-

stances under which materials causing the plaintiff’s injuries were being used at the time of incident. The court strictly construed the language of 12 NYCRR 23-2.1(a)(1) and determined the items in question were in use and not in storage.

General supervision of a worksite by an owner or managing agent is insufficient to impart Labor Law § 200 liability acts or omissions of a plaintiff or of the contractor controlling his work.

18 | Labor Law Update

Expert affidavit, Industry practice

199 A.D. 3d 1448 November 19, 2021

The plaintiff and a co-worker were hauling appliances on handcarts up a flight of stairs, with the co-worker at a higher elevation than plaintiff. When the co-worker’s back gave out, the co-worker let go of his handcart resulting in the cart and appliances falling down the stairs and injuring the plaintiff. Upholding the lower court award of summary judgment on Labor Law § 240 to the plaintiff, the court found that the plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential. The court rejected the defendant’s affidavit from an expert biomechanist who opined that no additional safety devices were needed. The court found that the expert’s opinion was based only on what is typical and common in the delivery and installation of appliances, noting that evidence of an industry practice is immaterial. Thus, the court found that the expert’s opinion lacked probative force and was insufficient to create a triable issue of fact.

PRACTICE NOTE: To support a defendant’s claim

for summary judgment dismissing a labor law claim, the expert’s opinion must be tailored to the exact facts and circumstances of the safety device needed, and not made in general fashion as to evidence of industry practice.

Index Symbols

F

P

12 NYCRR 23-1.21(b)(3)(iv) 17

Failure of a safety device 5

Parties liable 4

12 NYCRR 23-1.30 – sufficient illumination 15

Fall from height 7

Passageway 6

Fall from ladder 6

Permanent structure 5

Falling object 5

Pleadings 4

Falling worker 7 11

Premises defect 6

Foreseeable risk of harm 5

Protected activities 4

A Adequate safety devices 4 A-frame ladder 4 Agency 9 Alterations 9 12 Authority to control or supervise 9 Authority to supervise work 9

B

Proximate cause 4 10

G General contractors 6

R Recalcitrant worker 4 9

H

Repairs 6 15 16 Res judicata 9

Height-related risk 6 Burden of proof 5 9

Homeowner’s exemption 9 10 13 15

C Cleaning 4

Safety devices 4 5 6 8 11 Industrial code 7

Common law indemnification 13

Industrial Code § 23-1.7(e) 5

Common law negligence 5 6 10 15

Industrial code violation 7 11 17

Construction manager 11

Industrial code violations 4 5 9

Construction notice 5

Industry practice 18

Contractors 8

Covered person 15 Covered work 6 13

Labor Law § 240 6 7 9 15 Labor Law § 240(1) 4 5 6 7 8 10 11 12 13 15 16 17 18 Labor Law § 241(6) 4 5 7 9 10 11 12 13 15 17 18

D Dangerous conditions 10 Defect 6

Labor Law § 241-a 12

Defective condition 5 9

Labor law defendant 6

Defective premises 7

Leave to amend 11

Direction 6 13 18

Leave to amend pleadings 11

Direct or control work 4

M Materials 18

Elevation differential 17

Means and methods 7 13

Elevation-related risk 4

Excavation work 15 Expert affidavit 17 18

Sidewalk 4 Slipping hazards 12 Sole proximate cause 4 5 6 7 8 9 17 Spoliation of evidence 9 Structure 15 Summary judgment 5 7 Supervision 6 13 18 Supervision and control 10

T Third-party contractual liability 10

U Unsafe conditions 12

Ladder 4 6 7 9 13 15

Demolition 12

Evidence 10

Secured objects 5

Statutory agent 11 Labor law 13 Labor Law § 200 4 5 6 7 9 10 11 12 13 15 18

Control 6 18

Enumerated activity 4 8 9 12 13 15 16

Safety equipment 11

L

Contractual indemnification 6 11 13 17

E

S

I

Collateral estoppel 9 11

Construction-related activity 7

Routine maintenance 4 6 8 13 15 16 17

Hole 6

O Owners 4 6 10

W Workers’ compensation 11

Helping You Stay Ahead Webinars

Publications

Goldberg Segalla offers complimentary, interactive webinars that explore practical implications of legal trends and developments across a range of practice areas including:

Construction Site Personal Injury Litigation, Third Edition

• Construction • Employment and Labor

If you’d like to purchase the Construction Site Personal Injury Litigation, Third Edition, visit the New York State Bar Association's website.

• Global Insurance Services • Long-Term Care • Toxic Tort and Environmental Law • Workers’ Compensation

Alerts Regular updates on various industry sectors and areas of law and timely analysis of breaking news of interest to our client community. We actively monitor news and trends in the law and the industries we represent, and we use our practice group-specific alerts to provide clients with critical information and analysis of the latest developments impacting their business.

Learn more and subscribe at goldbergsegalla.com/connect-with-us

Syracuse Albany

Rochester

Hartford

Buffalo

New York City Garden City White Plains Philadelphia Newark Princeton Baltimore

Chicago San Francisco

St. Louis

Greensboro Raleigh

Los Angeles Orange County

Orlando West Palm Beach Miami

Working for you, from coast to coast.

California | Connecticut | Florida | Illinois Maryland | Missouri | New Jersey | New York North Carolina | Pennsylvania linkedin.com/company/goldberg-segalla @GoldbergSegalla facebook.com/GoldbergSegalla

goldbergsegalla.com Attorney Advertising. Prior results do not guarantee a similar outcome.

For informational purposes only. © 2022 Goldberg Segalla.