Goldberg Segalla Labor Law Update
FALL 2024
Goldberg Segalla’s Labor Law Update keeps clients informed about significant changes and cases involving New York’s Labor Law. Cases are organized by court and date. If you have any questions about cases reported in this Labor Law Update or questions concerning Labor Law §§ 200, 240(1) and 241(6) in general, please contact Theodore W. Ucinski III or Kelly A. McGee.
LABOR LAW UPDATE ASSISTANT EDITORS
Jamie K. McAleavey Partner | Garden City jmcaleavey@goldbergsegalla.com 516.281.9865
IN THIS ISSUE
Court of Appeals | 4
First Department | 5
Second Department | 18
Third Department | 26
Fourth Department | 27
Topics Index | 30
Frank S. Rosenfield Partner | Garden City frosenfield@goldbergsegalla.com 516.281.9840
FALL 2024 CONTRIBUTORS
Alexandra Y. Bystritskaya Partner | White Plains abystritskaya@goldbergsegalla.com 914.798.5438
Frank G. DiSpirito Partner | Garden City fdispirito@goldbergsegalla.com 516.281.9831
Ian B. Forman Partner | Garden City iforman@goldbergsegalla.com 516.267.5915
Kris E. Lawrence Partner | Buffalo klawrence@goldbergsegalla.com 716.710.5817
Jeffrey S. Matty Partner | Manhattan, Raleigh jmatty@goldbergsegalla.com 646.292.8748
Jennifer L. Budner Partner | White Plains jbudner@goldbergsegalla.com 914.798.5422
Paul D. McCormick Partner | Buffalo pmccormick@goldbergsegalla.com 716.566.5466
Erin M. Tyreman Partner | Syracuse etyreman@goldbergsegalla.com 315.413.5427
J. Daniel Velez Partner | Garden City dvelez@goldbergsegalla.com 516.281.9816
Andrew N. Fluger Special Counsel | White Plains afluger@goldbergsegalla.com 914.798.5424
Ryan C. Mahoney Special Counsel | Buffalo rmahoney@goldbergsegalla.com 646.292.877
Abraham D. Leybengrub Associate | Manhattan aleybengrub@goldbergsegalla.com 646.292.8785
Shannon Q. Sullivan Associate | Garden City ssullivan@goldbergsegalla.com 516.281.9835
TOPICS: Slipping hazard, Integral to the work
BAZDARIC V. ALMAH PARTNERS LLC
41 N.Y.3d 310
February 20, 2024
The plaintiff was injured when he slipped on a plastic covering on an escalator in an area he was assigned to paint. He testified that he complained to his foreman, in response to which the foreman cursed at him, chastised him for complaining, telling him to work on the plastic. The general contractor testified that plastic was the wrong type of covering; drop cloths should have been used. The plaintiff moved for partial summary judgment on Labor Law
§ 241(6) based on a violation of Industrial Code 12 NYCRR § 23-1.7(d), which prohibits the use of a work surface without providing safe footing from a slipping hazard. The defendants opposed on grounds that the plastic covering was integral to the work. The trial court granted the plaintiff’s motion. A divided First Department reversed and granted the defendants’ cross-motion dismissing the Labor Law § 241(6) cause of action, holding that the plastic covering was not a “foreign substance” for purposes of 12 NYCRR § 23-1.7(d) because the plastic covering was dissimilar in nature to the foreign substances listed in the regulation (i.e., ice, snow, water or grease). The Court of Appeals agreed that the plastic covering was a foreign substance for purposes of 12
NYCRR § 23-1.7(d) because it was not a part of the escalator, and that the majority misapplied the “integral to the work” doctrine. The court stated that because the dangerous condition was not inherent to the task at hand, but rather was created by the defendants’ negligence, it was not “integral to the work,” particularly where a safer alternative (e.g., drop cloths, wood panels) would have accomplished the same goal.
PRACTICE NOTE: The concurring opinion stated that while it agreed that the plastic sheeting was a “foreign substance” within the meaning of 12 NYCRR § 23-1.7(d), it did not agree that any substance “not part of the escalator” would qualify as such.
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TOPICS: Slip and fall, Labor Law § 200
BACOVA V. PARAMOUNT LEASEHOLD, LP
223 A.D.3d 428
January 9, 2024
The court affirmed the denial of the plaintiff’s summary judgment motion on liability. The plaintiff was injured when he slipped and tripped on the edge of the plywood floor protection or on a mat laid on it. The plaintiff failed to make a prima facie showing of entitlement to summary judgment as a matter of law. The plaintiff also failed to establish as a matter of law that any defect in the plywood edge was visible, apparent and existed for a sufficient length of time prior to the accident to permit defendants to discover and remedy it, since the plaintiff and his coworker both testified that they passed the location of the accident up to 100 times that day. The court also modified the Supreme Court’s order denying summary judgment on the Labor Law § 200 claim. The defendant subcontractor was found to be a “statutory agent of the owner and general contractor” and stands in their shoes. The owner and general contractor may be held under Labor Law § 200 for injuries arising from a dangerous condition if there is evidence that the subcontractor created the dangerous condition. If that subcontractor is a statutory agent of the owner they can also be held liable.
PRACTICE NOTE: If a Labor Law § 200 claim is based upon a condition of the jobsite, a premises liability analysis is applied.
TOPICS: Labor Law § 241(6), Industrial Code, Vertical passageways
LINDEMANN V. VNO 100 W. 33RD STREET LLC
223 A.D.3d 434
January 9, 2024
The court properly granted the defendants’ motion for summary judgment as to the plaintiff’s Labor Law § 241 (6) cause of action, predicated upon a violation of Industrial Code 12 NYCRR § 23-1.7 (f). The defendants established that no vertical passage was contemplated by that code provision as required in this instance. The plaintiff’s Labor Law § 200 and common-law negligence claims were properly dismissed since the
raised flooring and protruding metal pedestal which allegedly caught the plaintiff’s foot and caused him to fall were not defects inherent in the property but were created by the subcontractor’s ongoing work and the manner in which it was performed. The defendants further established that they did not exercise supervision and control over the injury-causing work.
PRACTICE NOTE: In a Labor Law § 241(6) claim, the plaintiff must plead and prove a violation of a sufficiently specific Industrial Code provision.
TOPICS:
Labor Law § 240(1), Force of gravity
BUCCI V. CITY OF NEW YORK
223 A.D.3d 453
January 11, 2024
The court affirmed the dismissal of the plaintiff’s Labor Law § 240 (1) claims. The court notes that to recover under § 240, the hazard to which the plaintiff was exposed must have been one directly flowing from the application of the force of gravity to an object or person. In this case, the clamp and the attached steel cable struck the plaintiff when a moving truck snagged and strung the cable, creating tension and built-up kinetic energy and, when the cable snapped, it struck his arm and head in a horizontal slingshot fashion. The plaintiff’s injuries were not as a result of the effects of gravity. The First Department also found that the motion court should have denied the defendant’s motion for summary judgment dismissing the plaintiff’s Labor Law § 241 (6) claim predicated upon Industrial Code 12 NYCRR § 23-1.29 (a). Labor Law § 241 (6) requires that “contractors and owners provide reasonable and adequate protection and safety to the persons employed in construction, excavation or demolition work.” To prevail on a cause of action under Labor Law § 241 (6), a plaintiff must establish a violation of an implementing regulation which sets forth a specific standard of conduct. Here, there is no dispute that the Industrial Code section upon which plaintiff relies is sufficiently specific to support a § 241 (6) claim. Also, the facts show that the plaintiff was engaged in construction in a lift bucket and tightening a newly installed steel cable wire in close proximity to public vehicular traffic on a roadway when a moving truck hit the cable
that was installed in an underpass area and caused the cable to whiplash and strike the plaintiff. At the time, there was no flag person or erected barricades to control traffic in the work area. Accordingly, the evidence established that 12 NYCRR § 23-1.29 (a) was violated and that this violation was the proximate cause of the plaintiff’s injuries. The court should have granted the plaintiff’s motion for partial summary judgment on § 241 (6). The plaintiff was not required to demonstrate freedom from comparative fault to be awarded summary judgment on that claim.
PRACTICE NOTE: Labor Law § 240(1) liability is couched in accidents occurring as a result of an unprotected gravity-related risk.
TOPICS: Labor Law § 240(1), Fall from a ladder
CASTILLO V. TRM CONTRACTING 626, LLC
223 A.D.3d 458
January 11, 2024
The court affirmed the motion court’s denial of the defendant’s motion to renew the plaintiff’s motion for partial summary judgment on his Labor Law § 240 claim based on the testimony of the plaintiff’s foreman; the deposition of the plaintiff’s foreman was not necessary. The plaintiff established prima facie entitlement to summary judgment based on his testimony and the affidavit of a coworker that he fell from an unsecured ladder in a closed position because he was unable to open it due to boxes obstructing the corner of the room where he was painting.
PRACTICE NOTE: When a plaintiff proves a prima facie Labor Law § 240(1) case involving a fall from a ladder, the court will not order further discovery.
TOPICS: Labor Law § 200, Labor Law § 240(1)
MARTE V. TISHMAN CONSTRUCTION CORP.
223 A.D.3d 527
January 18, 2024
The Supreme Court properly granted the defendant’s summary judgment motion
pursuant to Labor Law § 200 because there was no evidence that they created any hazardous condition regarding the rebar mat on which the appellant slipped, since his employer was installing the rebar and pouring concrete. There is also no evidence that the defendant had actual or constructive notice of any defect that existed for a sufficient time, as all of the witnesses testified that no one had complained about the condition of the rebar. The court properly denied summary judgment to all parties in the Labor Law § 240 claim alleging injury resulting from a failure to provide adequate protection against a risk arising from a physically significant elevation differential because there was testimony supporting the defendant’s contention that placing plywood after laying in rebar would be impractical and contrary to the very work at hand to cover the area where the concrete was being spread.
PRACTICE NOTE: In a Labor Law § 240(1) scenario if defendants can prove that application of a safety device is impractical and contrary to the work being performed, the statute may not apply.
TOPICS: Enumerated activity, Means and methods
ANDINO V. WIZARDS STUDIOS N. INC.
223 A.D.3d 508
January 18, 2024
The plaintiff, a stagehand, was injured while working from a height to affix decorative banners to a previously erected structure. The Supreme Court found the Appellate Division upheld the finding that the plaintiff was not engaged in a covered activity under Labor Law §§ 240(1) and 241(6). The Appellate Division found the Supreme Court erred in not dismissing the common-law negligence and Labor Law § 200 claims as the property owner did not exercise any control over the means and methods of the work.
PRACTICE NOTE: A practitioner should always begin their Labor Law analysis by examining what the plaintiff was doing and how they were performing the work before determining whether the accident was gravity related.
TOPICS: Labor Law § 241(6), 12 NYCRR § 23-1.7(d), Comparative negligence
BRADLEY V. NYU LANGONE HOSPS.
223 A.D.3d 509
January 18, 2024
The plaintiff was injured while walking up a set of stairs on a construction project from the first floor to the second when she was caused to slip and fall on an accumulation of rainwater that entered the building through an open roof. The plaintiff moved for summary judgment on Labor Law § 241(6) supported by 12 NYCRR § 23-1.7(d), and the defendants sought to dismiss same. This section of the industrial code provides that all passageways are to be kept free of water which may create a slippery condition. The court found that neither the plaintiff nor the defendants met their burden of proof on their motions. Under applicable case law, a stairway can only be deemed a passageway under 12 NYCRR § 23-1.7(d) if it is the sole means of access to the work site. Here, neither party established that the stairway at issue was the sole means of access to the second-floor worksite and, as a result, neither of them met their burden. However, the plaintiff also moved to strike the defendant’s affirmative defense of comparative negligence and was successful on same. During Examinations Before Trial, the defendants did not adduce any evidence to support their affirmative defense that the plaintiff in some way contributed to the accident.
PRACTICE NOTE: Examinations Before Trial are not used merely to establish a factual narrative. In Labor Law cases they must be employed to establish legal claims and defenses or risk an adverse decision.
TOPICS: Integral to the work, Labor Law § 241(6)
MALDONADO V. HINES 1045 AVE. OF THE AMS. INVS. LLC
223 A.D.3d 622
January 30, 2024
The plaintiff, a welder, tripped over electrical conduit piping that rose vertically from the floor 5 to 12 inches in the lobby of a new building under construction. The defen -
dants moved to dismiss the plaintiff’s Labor Law § 241(6) claim based upon 12 NYCRR § 23-1.7(e)(2) by alleging the conduit was integral to the work being performed as it was part of an ongoing turnstile installation. The court found the plaintiff’s argument that the defendants failed to cordon off the area or mark it in some way unavailing in that the Industrial Code does not have such requirements.
PRACTICE NOTE: The integral to the work defense is available when the instrumentality involved in the accident is part of ongoing work at the premises. It does not need to be an aspect of the work being performed by the plaintiff.
TOPICS: Construction manager, Statutory agent, Industrial Code
DIAZ V. P&K CONSTR., INC.
224 A.D.3d 405 February 1, 2024
The plaintiff was injured when he fell while unloading materials from the flatbed of a truck for construction of a shed. Notably, the plaintiff was standing on the materials when his accident occurred. The Appellate Division found that the defendant, the construction manager, was not a proper Labor Law defendant and did not exercise the requisite supervision and control over the work to be deemed either a statutory agent or general contractor. Turning to the remaining defendants, the court found the Industrial Code sections cited by the plaintiff were inapplicable to the facts. 12 NYCRR § 23-1.7(f) was inapplicable because the accident did not occur while the plaintiff was attempting to access different work levels. 12 NYCRR § 23-2.1 was deemed inapplicable because it addresses proper storage of materials. 12 NYCRR § 23-2.3 was also deemed inapplicable because there was no indication the materials the plaintiff was standing upon shifted.
PRACTICE NOTE: Construction managers are not the same as general contractors. A construction manager does not contract with sub-contractors and does not supervise the means and methods of the work. They act as administrators on the project and as a result they are not subject to the
Labor Law. However, these lines frequently get blurred and the only way to determine liability is through close factual analysis.
TOPICS: Labor Law § 240(1), Unguarded opening
DEVLIN V. AECOM
224 A.D.3d 437
February 8, 2024
The plaintiff was injured when he fell through an insufficiently guarded opening in the floor of the worksite when its unsecured plywood covering shifted as he walked over it. The plaintiff was awarded summary judgment on Labor Law § 240(1). The court specifically found the defendants arguments that the sheet of plywood was a sufficient barricade to be unavailing. Further, the entry on a C-3 Form that the plaintiff lifted the plywood was not dispositive because the statement was not attributed to him and would be comparative negligence at most. Lastly, the argument that the plaintiff should not have been working in the area was not supported by his employer’s contract or other employees’ testimony.
PRACTICE NOTE: Liability will attach for gravity-related accidents where there is a clear violation and failure to provide an appropriate safety device.
TOPICS: Labor Law § 240(1), Repair, Routine maintenance
RODRIQUEZ V. FAWN E. FOURTH ST. LLC
224 A.D.3d 465
February 8, 2024
The court found that deposition testimony and documentary evidence introduced by the plaintiff in opposition to the defendant’s motion for summary judgment was sufficient to raise a triable issue of fact as to the plaintiff’s Labor Law § 240(1) claim. Specifically, the evidence raised an issue as to whether the plaintiff’s work on the water heater constituted a repair within the meaning of Labor Law § 240(1) as opposed to routine maintenance. The court further found that the defendants failed to offer proof of the cause of the water heater’s breakdown other than the mechanism was leaking and no longer functioning. Additionally, the court noted that the defendants failed to offer proof that the water heater’s failure was due to normal wear and tear. Finally, the court determined that the plaintiff raised triable issues as to whether an elevation differential existed “such that the weight of the water heater, as it was strapped to the hand truck, created a hazardous gravitational force which devices enumerated in Labor Law § 240(1) were meant to protect against.”
PRACTICE NOTE: A triable issue of fact exists as to liability under Labor Law § 240(1)
routine maintenance exception where a defendant fails to offer proof as to the cause of a piece of equipment’s breakdown.
TOPICS: Pleadings, Employer-employee relationship, Covered worker
ROSENBERG V. OSG, LLC
224 A.D.3d 466
February 8, 2024
The court dismissed the plaintiffs’ Labor Law claims where the plaintiffs’ complaint failed to allege that they were employees of any of the individually named defendants. The pleadings themselves failed to contain any factual allegations that could support the finding of an employer relationship. Rather, the plaintiffs merely alleged that they joined one of the defendants’ companies as members, paying a monthly membership fee. The court held that general assertions that the individual defendants were all employers that directed the performance of work and maintained substantial control over the plaintiffs’ work activities were bare legal conclusions and insufficient to maintain a cause of action under the Labor Law.
PRACTICE NOTE: A cause of action pursuant to the Labor Law cannot be maintained where only a general assertion of an employment relationship between the plaintiffs and defendants exists.
TOPICS: Labor Law § 240(1), Contractual indemnity, Common-law indemnity, Contribution
WEIDTMAN V. TREMONT RENAISSANCE
HOUS. DEV. FUND CO., INC.
224 A.D.3d 488
February 13, 2024
The plaintiff was struck by a plank being hoisted by a crane, causing him to trip on a loose plank on the ground and fall off of his working surface to the basement level. The court affirmed the plaintiff’s Labor Law § 240 decision because the plaintiff was not provided a safety line and harness or an enumerated safety device to prevent his fall from an unguarded elevation. The court held that the common-law negligence claim against two of the defendants should have been dismissed because the plaintiff’s accident arose solely from the means and methods of the work, and these defendants did not supervise or control the work. With regard to contractual claims, the court held that summary judgment should have been conditionally awarded to the defendants on their claims of contractual indemnification stating that “the focus of such a broadly worded clause is not the precise cause of the accident, but the general nature of the operation in the course of which the injury was sustained.” The court held that defendant parties not deemed third-party beneficiaries of the indemnification provisions in the subcontracts that did not mention them and of which they were not signatories because “indemnification provisions should be strictly construed and not be judicially rewritten to create obligations that were not unambiguously stated therein.”
PRACTICE NOTE: When examining contractual indemnification provisions arising out of a proposed indemnitor’s work, a court will examine the general nature of the operation under which a plaintiff was injured and not the exact cause of the accident.
TOPICS: Labor Law § 240(1), Labor Law § 241(6), 12 NYCRR § 12-1.7(d)
YORK V. TAPPAN ZEE CONSTRUCTORS, LLC
224 A.D.3d 527
February 15, 2024
A plaintiff was being taken by boat to a worksite at the Tappen Zee Bridge by the general contractor. The boat was docked at one of two barges on the water with a two- to three-foot gap in between them. The plaintiff slipped and fell on an icy condition while attempting to walk from one barge to another. While grabbing a co-worker to prevent his fall, the plaintiff fell into the gap and the water eight- to twelve-feet below. The Appellate Division reversed the lower court and granted summary judgment to the plaintiff on his Labor Law § 240(1) cause of action. Although the fall occurred on barges at the same level, the plaintiff fell while struggling to avoid falling in the water which was an elevationrelated risk. Further, the site safety plan required a gangway, the absence of which was a proximate cause of the accident.
PRACTICE NOTE: A fall between two objects at the same level can result in liability under Labor Law § 240 where the fall was caused in an attempt to avoid an elevation-related risk. A safety device may not be enumerated in the statute. If the court finds that a device could have prevented the fall, and was not provided, Labor Law § 240 liability may apply.
TOPICS: Labor Law § 240(1), Covered work, Enumerated activity
MELENDEZ V. TRUFFLES II., LLC
224 A.D.3d 509
February 15, 2024
The Appellate Division reversed the lower court’s granting of partial summary judgment on the plaintiff’s Labor Law § 240(1) claim holding that the plaintiff did not conclusively establish that his work constituted erection, demolition, repairing, altering, painting, cleaning, or pointing of a building or structure within the meaning of the law.
PRACTICE NOTE: Labor Law § 240(1) only applies to activities considered as erection, demolition, repairing, altering, painting, cleaning, or pointing of a building or structure.
TOPICS: Elevated surfaces, Safety devices, Competing experts
DASILVA V. TOLL GC LLC
224 A.D.3d 540
February 20, 2024
The plaintiff was injured when he slipped on concrete debris while manually carrying a 200-pound staircase mold between floors. The court affirmed summary judgment in favor of the plaintiff on his Labor Law § 240(1) claim because the evidence established that he had been directed to perform work on an elevated work platform – a permanent staircase – and the defendants failed to provide him with adequate safety devices to guard against a fall. The court further noted that the competing expert affidavits were not sufficient to raise a question of fact, as the experts agreed a safety device was required, and only disputed whether the hoist allegedly requested by the plaintiff was available.
PRACTICE NOTE: Expert affidavits must be carefully written to address all issues central to dispositive motion practice.
TOPICS: Labor Law § 240(1), Ladder, Sole proximate cause
ORTIZ V. CITY OF NEW YORK
224 A.D.3d 631
February 29, 2024
The plaintiff was injured when he fell approximately four feet as he attempted to descend from an outrigger platform on a scaffold by climbing down the cross-bracings under the platform, allegedly due to the absence of a ladder. The defendants’ attempt to rely on the sole proximate cause defense was rejected as they failed to show that the plaintiff knew he was expected to use a ladder but for no good reason chose not to do so, with the court noting that there was no evidence that detachable ladders used to access other floors of the scaffold were sufficient to access the outrigger platform.
PRACTICE NOTE: When defending against Labor Law § 240(1) claims and asserting a sole proximate cause defense, it is critical to provide evidentiary support for direct instructions being given to the plaintiff and to establish the plaintiff’s knowledge of proper safety procedures contrary to his own actions.
TOPICS: Falling object, Burdens of proof, Contractual indemnity
TORRES-QUITO V. 1711 LLC
227 A.D.3d 113
March 12, 2024
The plaintiff, a mechanic’s helper, was unloading ductwork piping in the delivery zone of a project when he was struck in the head by a falling brick. The court reversed the trial court’s denial of the plaintiff’s motion for summary judgment, noting that for a falling objects claim, a plaintiff need only show that he was struck by a falling object, that the falling object required securing for the purposes of the work, and that the absence of overhead protection failed to shield against the injury sustained. The court reiterated that when the absence of overhead protective devices is a proximate cause of the injury, a plaintiff is not required to show the exact circumstances under which the object fell. The court further granted conditional summary judgment to the property owner and upstream contractor, noting that the broad indemnity provision evidenced the intention for the contractor to provide indemnity for any claims arising out of its work, regardless of whether it was itself negligent.
PRACTICE NOTE: Careful attention must be paid to the scope and breadth of indemnity provisions to ensure that all parties are aware of the obligation undertaken.
TOPICS: Labor Law § 240(1), Sole proximate cause, Employer instructions, Contractual indemnity
ASIAN V. FLINTLOCK CONSTR. SERVS. LLC
225 A.D.3d 462
March 14, 2024
The plaintiff was injured when he fell from the top of a wall as a result of vibrations created while using a 70- to 100-pound chipping hammer to break up bricks. The court affirmed the granting of summary judgment to the plaintiff on his Labor Law § 240(1) claim, noting that any negligence on the plaintiff’s part cannot be deemed the sole proximate cause of his injuries as his conduct of performing the work while standing on top of the wall was consistent with his employer’s instructions. The court
further reversed the denial of the general contractor’s contractual indemnity motion because in response to a notice to admit, the employer admitted the contract was in effect on the date of loss, and the broad indemnity provision was triggered by an injury occurring in the course of the employer’s work.
PRACTICE NOTE: A defense premised upon the plaintiff’s own conduct must establish that the plaintiff was the sole proximate cause of his injuries and that the conduct underpinning such a claim was not the result of a direction given by his employer.
TOPICS : Labor Law § 240(1), Labor Law § 241(6)
DESPREZ V. UNITED PRIME BROADWAY, LLC
225 A.D.3d 518
March 21, 2024
The plaintiff was injured when he was struck in the face by a grinder that he was using while standing on a ladder to cut a metal plate at chest height. However, the ladder did not fall or collapse, and the plaintiff did not fall from the ladder. The court affirmed the dismissal of the plaintiff’s Labor Law 240(1) claims because his injury was caused by the piece of machinery and did not result from any elevation-related risk presented by the ladder. The court reversed the dismissal of plaintiff’s Labor Law 241(6) claims because the grinder being used lacked an appropriate guard, therefore violating a specific regulatory mandate of Industrial Code 12 NYCRR § 23-1.5(c)(3), and the evidence demonstrated that the defendants had actual notice of this defect.
PRACTICE NOTE: Not every injury at a height translates to Labor Law liability, and careful investigation into workplace accidents is required to demonstrate the precise events giving rise to an ultimate injury.
TOPICS: Labor Law § 240(1), Safety devices, Sole proximate cause
LINARES V. MASSACHUSETTS MUT. LIFE INS. CO.
225 A.D.3d 520
March 21, 2024
The plaintiff was injured when he fell from a stack of empty compound buckets that he was standing on to tape and compound the upper areas on an apartment’s walls. The Second Department held that the plaintiff was entitled to summary judgment as to his Labor Law § 240(1) claim because he established the defendants did not provide him with an adequate safety device to perform his work. The plaintiff testified that there were no ladders available and his foreman saw him on the buckets, instructed him to continue his work until the foreman brought a ladder, but the foreman did not return before the plaintiff fell. The testimony submitted by the defendants that there were ladders available, workers were instructed to use them in the morning meeting, and that the foreman did not recall the plaintiff twice asking for a ladder failed to raise a triable issue of fact. According to the court, any failure on the part of the plaintiff to track down and obtain a ladder was as much due to an omission by the foreman as it was the plaintiff, so the plaintiff was not the sole proximate cause of his accident.
PRACTICE NOTE: Testimony from a foreman or party that they could not recall a conversation where a plaintiff makes a request for a safety device does not raise an issue of fact as to whether the plaintiff, in fact, made such a request.
TOPICS: Labor Law § 240(1), Safety devices, Labor Law § 200, Means and methods
V. MEMORIAL HOSP. FOR CANCER & ALLIED DISEASES
225 A.D.3d 536
March 26, 2024
The plaintiff was injured while working in an elevator shaft when a work panel that coworkers were trying to manually hand up to a scaffold fell onto his right knee. The First Department held that the plaintiff’s submitted evidence including testimony, written policies, and an incident report established that the plaintiff was injured by a falling object that should have been secured by a safety device pursuant to Labor Law § 240(1). The defendants’ expert’s affidavit lacked factual support of his opinion and, thus, failed to raise an issue of fact. The First Department held that the Labor Law § 200 claim was properly dismissed
CARRANZA
against the general contractor defendant as the accident arose from the means and methods of the work, which was directed and controlled by the plaintiff’s employer.
PRACTICE NOTE: When an accident arises from the means and methods of the work being performed, general supervisory powers conferred on a general contractor by agreement with an owner are not sufficient to establish the necessary direction and control required for a general contractor to have liability under Labor Law § 200.
TOPICS: Labor Law § 240(1), Sole proximate cause
RODAS-GARCIA V. NYC UNITED LLC
225 A.D.3d 556
March 26, 2024
The plaintiff was injured when he fell from an unsecured A-frame ladder that suddenly moved when he was reaching overhead to plaster the ceiling. The First Department upheld the lower court’s finding of partial summary judgment in the plaintiff’s favor on his Labor Law § 240(1) claim. The defendants’ purported evidence that the plaintiff was reaching towards the ceiling while on the ladder rather than repositioning it and that the ladder was too short was inadmissible hearsay and failed to raise an issue of fact as to whether the plaintiff was the sole proximate cause of the accident. The court held that, in any event, this was evidence of comparative negligence at most. Further, there was no evidence that the plaintiff was the sole proximate cause of the accident for failing to use a harness.
PRACTICE NOTE: A plaintiff is not required to demonstrate that a ladder was defective in order to make a prima facie showing of entitlement to summary judgment on a Labor Law § 240(1) claim.
TOPICS: Labor Law § 241(6), Industrial Code
MANN V. MEZUYON, LLC
225 A.D.3d 569
March 28, 2024
The plaintiff was injured when he was struck by an excavator machine on an
excavation site. The plaintiff asserted a Labor Law § 241(6) claim based on Industrial Code § 23-4.2(k), which provides that "[p]ersons shall not be suffered or permitted to work in any area where they may be struck or endangered by any excavation equipment or by any material being dislodged by or falling from such equipment." The First Department upheld summary judgment in favor of the third-party defendant as it has previously held that Industrial Code § 23-4.2(k) is not sufficiently specific to establish a Labor Law § 241(6) claim.
PRACTICE NOTE: The Third and Fourth Departments concur that Industrial Code § 23-4.2(k) is not sufficiently specific to establish a Labor Law § 241(6) claim. However, the Second Department has held that it is a sufficient predicate.
TOPICS: Labor Law § 240(1), Sole proximate cause, Safety equipment, Recalcitrant worker
NUNEZ V. SY PROSPECT LLC
226 A.D.3d 411 April 2, 2024
The plaintiff was injured when the ladder he was working on abruptly shook and he fell. The First Department held that the plaintiff was entitled to summary judgment as to his Labor Law § 240(1) claim by making a prima facie showing that his injuries were proximately caused by the defendants’ failure to provide any safety devices or assistance to ensure the ladder’s stability. The defendants failed to raise an issue of fact as they did not present any evidence that safety equipment was provided and did not refute the plaintiff’s testimony that he was not provided with safety devices. An affidavit from the plaintiff’s supervisor was deemed conclusory as it did not elaborate on the supervisor’s statement that he observed the plaintiff ascend the wrong side of the ladder and that he told the plaintiff to go up the other side.
PRACTICE NOTE: The recalcitrant worker defense is inapplicable where it is undisputed that no adequate safety device was provided.
TOPICS: Labor Law § 200, Dangerous condition, Spoliation
MOSCINSKI V. QUADRUM 38 LLC
226 A.D.3d 410
April 2, 2024
The plaintiff was injured by a fire extinguisher that fell on his foot. The First Department held that the plaintiff was entitled to summary judgment based on his expert’s opinion that the stand holding it was not properly constructed. The defendants could not raise an issue of fact as they were precluded from offering evidence of the fire extinguisher’s condition for failing to preserve the fire extinguisher.
PRACTICE NOTE: An adverse inference charge and preclusion may be a reasonable remedy when a party spoliates evidence.
TOPICS: Motion to renew, Homeowner’s exemption, Property’s commercial purpose
SOLIS V. 340 W. 12 REALTY LLC
226 A.D.3d 449
April 4, 2024
The plaintiff was injured during demolition of a property, which was acquired by a member of the defendant, an LLC. The defendant moved to dismiss the Labor Law §§ 240(1) and 241(6) claims based on the homeowner’s exemption and submitted evidence that he intended to use the property solely for residential purposes. The motion was denied since an issue of fact existed as to whether the defendant intended to use the property for commercial purposes, since a provision which required the defendant to occupy the property within 60 days and to use the property as its principle residence for one year had been deleted from the mortgage documents. The defendant moved to renew his motion by submitting new facts in the form of a new affidavit, in which the defendant’s member stated that he and his family moved into the property after completion of renovations. The Appellate Division held that the new facts do not change the outcome since the availability of the homeowner’s exemption hinges upon the site and the purpose of the work, a test which must be employed on the basis of the homeowner’s intentions at the time of the injury.
PRACTICE NOTE: A dispositive motion based on the homeowner’s exemption could be denied due to an existing issue of fact, if at the time of the injury the evidence demonstrates that the property could have been used for a commercial purpose.
TOPICS: Summary judgment, Issue of fact, Labor Law § 200, Notice, Labor Law § 241(6), Industrial Code § 23-1.7(e)(1)
MERLO V. LCOR 55 BANK ST. LLC
226 A.D.3d 438
April 4, 2024
The plaintiff’s motion for partial summary judgment on the issue of liability was denied, and the Appellate Division affirmed the lower court’s ruling, since a question of fact exists as to whether the plaintiff’s alleged accident occurred in a passageway and triggered Labor Law § 241(6), predicated upon Industrial Code § 23-1.7(e)(1). Similarly, regarding Labor Law § 200 and common-law negligence, the Appellate Court held that a question of fact exists as to whether the defendant had notice of the condition allegedly causing the accident.
PRACTICE NOTE: When opposing a motion for summary judgment pursuant to Labor Law § 200, lack of prior notice, and not only the lack of control of the means and methods of the plaintiff’s work, is a question of fact which could lead to the denial of the motion. Additionally, liability under Labor Law § 241(6), predicated upon Industrial Code § 23-1.7(e)(1), is triggered only when the accident occurs in a passageway, as defined by the statute.
TOPICS: Summary judgment, Issue of fact, Labor Law § 241(6), Industrial Code § 23-1.7(e)(1)
YORK & NEW JERSEY
226 A.D.3d 444
April 4, 2024
The Appellate Division affirmed a lower court’s ruling denying the plaintiff’s motion for summary judgment on the issue of liability under Labor Law § 241(6), predicated upon Industrial Code § 23-1.7(e)(1), since conflicting testimonies as to whether
the area where the plaintiff’s accident occurred was off limits or routinely used by subcontractors to access the jobsite was sufficient to create an issue of fact as to the defendants’ liability.
PRACTICE NOTE: Taking the depositions of the plaintiff’s foreman, supervisor, co-worker, or anyone working with the plaintiff at the accident time is one of the best ways to obtain favorable liability evidence, to contradict the plaintiff’s testimony as to the occurrence of the accident and utilize such testimony while opposing the plaintiff’s dispositive motion to raise a question(s) of fact.
TOPICS: Summary judgment, Issue of fact, Labor Law § 241(6), Industrial Code § 23-1.29
VALENTI
V.
METROPOLITAN TRANSPORTATION AUTHORITY ET AL.
226 A.D.3d 491 April 11, 2024
The defendants’ motion for summary judgment seeking to dismiss the plaintiff’s Labor Law §§ 200 and 241(6) claims was granted. It was held that the presence of an officer for one of the defendants at the jobsite, whose work was to ensure that the workers being transported were identified as being on the appropriate lists and to open secure areas of the work site, was insufficient evidence to establish the defendants’ supervision and control over the plaintiff. It was further held that Labor Law § 241(6), predicated upon Industrial Code § 23-1.29, which discusses public vehicular traffic on the project, was inapplicable because, even if the drop-off area was part of the worksite, it was not the plaintiff’s work area. The Appellate Court affirmed.
PRACTICE NOTE: The mere fact that a defendant’s employee is working at a jobsite, without exercising supervisory control over the plaintiff, is insufficient to establish liability under Labor Law § 200. Moreover, Industrial Code § 23-1.29 is inapplicable when the accident does not occur in an area intended for public vehicular traffic.
RAGOO V. PORT AUTHORITY OF NEW
TOPICS: Pre-depositions, Summary judgment, Labor Law § 240(1)
BLACIO
V. RELATED CONSTRUCTION LLC
226 A.D.3d 499
April 16, 2024
The Appellate Court reversed the lower court’s ruling which denied the plaintiff’s partial summary judgment motion regarding the defendant’s Labor Law § 240(1) claim. While the plaintiff was walking on a stairway on the 12th floor of a project and transporting panels, he fell through an unguarded stairway opening. The Appellate Court held that the plaintiff’s motion should have been granted because he was not provided with adequate protection to prevent his fall. It was further held that the installation of a plywood barrier at the accident location days before the accident is irrelevant because liability under Labor Law § 240(1) is not based on a finding of prior notice. Moreover, it was held that the defendants failed to raise an issue of fact as to whether the plaintiff was the sole proximate cause of his injuries and that their argument that the plaintiff removed the plywood barrier was speculative. Lastly, the Appellate Court held that the motion was not premature since the defendants failed to show that discovery might lead to facts that would support their opposition to the motion, including failing to obtain affidavits from third-party witnesses who would appear for a deposition during discovery.
PRACTICE NOTE: Prior notice should be argued while opposing a motion for summary judgment pursuant to Labor Law § 200 or on some occasions a motion under Labor Law § 241(6), depending on the Industrial Code section alleged, but not while opposing a motion pursuant to Labor Law § 240(1). Additionally, when opposing a predeposition motion for summary judgment, affidavits should be obtained from all party or non-party witnesses which can support any argument raised in opposition to the plaintiff’s motion.
TOPICS: Labor Law § 241(6), Tripping hazard, Industrial Code §§ 23-1.7(e)(1) & (e)(2), Industrial Code § 23-2.1(a), Labor Law § 200
BROWN
V. TISHMAN CONSTR. CORP. OF N.Y.
226 A.D.3d 529
April 18, 2024
The plaintiff was injured while attempting to step over rebar. His co-worker picked up the rebar, striking the plaintiff in the shin, which caused him to fall. The First Department affirmed the lower court’s dismissal of the plaintiff’s Labor Law § 241(6) claim predicated on Industrial Code §§ 23-1.7(e) (1) and 1.7(e)(2), because the plaintiff’s accident occurred in an open work area, not a passageway, and the rebar was consistent with the work being performed and did not constitute debris. The plaintiff’s § 241(6) claim based on Industrial Code § 23-2.1(a) (1) was also correctly dismissed because the rebar was not in storage but was being installed at the time of his accident. The construction manager was not entitled to dismissal of plaintiff’s Labor Law § 200 and common-law negligence claims as questions of fact were raised on Tishman’s prior notice of the alleged dangerous condition and level of control over the plaintiff’s work.
PRACTICE NOTE : To maintain a Labor Law § 241(6) claim, a plaintiff must establish that the owner or general contractor violated a sufficiently specific Industrial Code and that such violation was the proximate cause of the plaintiff’s injuries.
TOPICS: Labor Law § 240(1), Hazardous opening
CLARKE V. CONSOLIDATED EDISON CO. OF N.Y., INC.
226 A.D.3d 533
April 18, 2024
The plaintiff was injured when he fell into an open manhole while performing work connected with underground inspections and repairs of network distribution equipment. The First Department found that an open manhole is an elevation-related risk that Labor Law § 240(1) is intended to protect against.
PRACTICE NOTE: The First Department determined the plaintiff was engaged in pro -
tected work activity under the Labor Law at the time of his accident and an open manhole is an elevation risk.
TOPICS: Labor Law § 240(1), Falling object
BARTLEY V. 76 ELEVENTH AVE. PROP. OWNER LLC
226 A.D.3d 528
April 18, 2024
The plaintiff was injured while in the process of stripping wooden forms from overhead concrete beams. He was stabilizing a loosened jack, which was holding an overhead form in place, when he was struck by a beam and ribs that slipped off of the jack. The First Department upheld the lower court’s finding of partial summary judgment to the plaintiff on the Labor Law § 240(1) claim, as the type of work the plaintiff was performing involved a load that required securing, and the record established that the jacks supporting the forms were inadequate safety devices that failed to shield the plaintiff from gravity-related hazards.
PRACTICE NOTE: Courts will look to whether a plaintiff’s gravity-related accident could have been prevented by a proper safety device to determine Labor Law § 240 liability.
TOPICS: Labor Law § 240(1), Hazardous opening
GUARACA V. WEST 25TH ST. HOUS. DEV. FUND CORP.
226 A.D.3d 568
April 23, 2024
The plaintiff was injured when he jumped onto a piece of plywood covering a duct hole to test its strength and the unsecured planking cracked, causing him to fall two stories to the basement below. The court upheld the decision granting the plaintiff summary judgment pursuant to Labor Law § 240(1) because the plaintiff established a prima facie violation of the statute by showing that the plywood cover on the hole was an inadequate safety device because it was not secured at the time of the accident. The First Department further found that if the plaintiff was allegedly negligent in testing the plywood, that would go to comparative negligence, which does not defeat the § 240(1) claim.
PRACTICE NOTE: In order to obtain summary judgment on claim of Labor Law § 240(1), a defendant must eliminate all triable issues of fact and establish that the accident was not the result of an elevation-related risk contemplated by the statute.
TOPICS: Labor Law § 240(1), Permanent structure, Foreseeability
MATA V. 371 1ST ST., LLC
226 A.D.3d 569
April 23, 2024
The First Department upheld the lower court’s granting of partial summary judgment to the plaintiff on the Labor Law § 240(1) claim, where the worker fell several stories when a subfloor that he was in the process of demolishing collapsed. The court further held that even if, as argued by the defendants, the subfloor was considered to be a permanent structure, in light of the poor condition of the building as depicted in photographs taken soon after the accident, and given that the plaintiff was engaged in pulling up nailed boards from the subfloor using a crowbar, the accident was foreseeable. The court rejected the defendants’ expert’s opinion, holding it to be insufficient to raise a question of fact as it was based on photographs taken at an unspecified time before the accident when
the building did not resemble the condition it was in when the accident happened.
PRACTICE NOTE: If a plaintiff sustains injuries because of the effects of gravity and provided safety devices do not provide proper protection, there is likely to be a Labor Law finding.
TOPICS: Labor Law § 200
MALECAJ V. WEST 70TH OWNERS CORP.
226 A.D.3d 621
April 30, 2024
The plaintiff was injured when he fell from a plank while excavating a pool during the renovation of a townhouse. The First Department partially granted the defendant general contractor’s appeal of a CPLR § 4404 motion to set aside a verdict reached at trial, and held the lower court should have set aside the portion of the verdict finding the general contractor liable on the common-law negligence and Labor Law § 200 claims. Although there was conflicting testimony as to who placed the plank that the plaintiff was working on and who instructed the plaintiff to work on the plank, there was no evidence that the general contractor gave such instructions and the plaintiff failed to show the general contractor exer-
cised direct supervision or control over the injury-producing work.
PRACTICE NOTE: When an accident arises from the means and methods of construction work, liability will not be imposed based upon Labor Law § 200 unless the owner(s) or contractor(s) supervise and/or control the work.
TOPICS: Labor Law § 240(1), De minimis height differential
HASKINS V. METROPOLITAN TRANSP.
AUTH.
227 A.D.3d 409
May 2, 2024
The plaintiff fell in a ground-level hole that measured 2 to 2.5 feet deep, 18 inches wide, and 3 feet long, and which had been covered by a thin piece of black plastic waterproofing material. The defendant argued that the plaintiff’s fall was not actionable under Labor Law § 240(1) because the height differential was de minimis. The Appellate Division affirmed the lower court’s order which found that the lack of sufficient safety devices to protect the plaintiff from falling into a hole violated Labor Law § 240(1) and was a proximate cause of the accident. The Appellate Division stated that there was no minimum
height differential that determines whether an elevation hazard exists and, herein, the record established that the plaintiff’s fall was the result of exposure to an elevation-related hazard. The court further held that the fact that the plaintiff was working at ground level did not remove this case from the purview of Labor Law § 240(1). Lastly, the court held that the uncontroverted evidence established that the plaintiff was not provided with any adequate safety devices to prevent his fall.
PRACTICE NOTE: A fall at ground level may still fall under the purview of Labor Law § 240(1) and there is no bright line minimum height differential that determines whether an elevation hazard exists.
TOPICS: Labor Law § 240(1), Labor Law § 241(6), Falling object
BRITT V. LEVGAR EQUITIES CORP.
227 A.D.3d 437
May 7, 2024
The plaintiff was injured while attempting to install an air conditioning coil unit at the defendants’ premises. In doing so, he received an electric shock, and was unable to let go of the unit. When the power was cut, the unit fell on the plaintiff’s knees. He then tried to pull the unit back up in order to prevent it from striking his coworker, who was working below, sustaining injuries. The Appellate Division held that, notwithstanding the fact that the plaintiff neither fell from a height nor was struck by a falling object, the plaintiff was injured due to his effort to prevent the unit from falling on a co-worker and, thus, the plaintiff was entitled to partial summary judgment as to liability on his Labor Law § 240(1) claim. The Appellate Division further held that the plaintiff was also entitled to partial summary judgment as to liability on his Labor Law § 241(6) claim, predicated on violations of Industrial Code §§ 23-1.13(h)(3) and (4), since the defendants did not ascertain whether there were live wires in the vicinity of the plaintiff’s work location and failed to protect the plaintiff against an electrical shock.
PRACTICE NOTE: A plaintiff may be entitled to summary judgment on a Labor Law § 240(1) claim where he prevented an object from falling on another, even though the plaintiff neither fell from a height nor was struck by a falling object.
TOPICS: Statutory defendants, Summary judgment
LOJA V. 133 LINCOLN LLC
227 A.D.3d 446
May 7, 2024
The defendant filed a motion to dismiss, pursuant to CPLR §§ 3211(a)(1) and (7), or for summary judgment dismissing the complaint against it, and sought sanctions against the plaintiff for engaging in frivolous litigation pursuant to 22 NYCRR § 1301.1, and the lower court denied such motion. On appeal, the Appellate Division modified the order, granting the motion for summary judgment dismissing the complaint. The Appellate Division held that the lower court should have granted summary judgment, finding that the defendant established prima facie that it was not a proper Labor Law defendant through the affidavit of its president, averring, among other things, that the defendant was not in business at the time of loss, had never owned the property or had any other connection to the property, and did not direct, supervise, or control any construction work at the property. In response, the plaintiff failed to raise a triable issue of fact. Although the plaintiff had submitted, in opposition to the motion, permits, same were inadmissible hearsay, and even if they could be considered, such were insufficient to raise an issue of fact regarding the defendant’s involvement with the construction work because the permits did not mention the defendant.
PRACTICE NOTE: A defendant may obtain summary judgment, pre-answer, via an affidavit establishing that it was not in business at the time of the accident, that it did not own the subject property, and that it did not direct, supervise, or control any construction work at such property.
TOPICS: Summary judgment, Issue of fact
SIMPERTEGUI V. CARLYLE HOUSE INC.
227 A.D.3d 486
May 9, 2024
The plaintiff was allegedly injured while removing and replacing bricks on a building at a construction site. At his deposition, the plaintiff testified that, while working, he climbed up an extension ladder to retrieve
materials necessary for the project. According to the plaintiff, when he reached a point around seven to eight feet off the ground, the ladder suddenly moved, causing him to fall. The plaintiff established prima facie entitlement to summary judgment on liability pursuant to his Labor Law § 24(1) cause of action by submitting his deposition testimony describing the accident, along with photographic evidence of the accident site. In opposition to the plaintiff’s motion, the defendant raised a triable issue of fact by identifying various inconsistences in the plaintiff’s account of the accident, including what day he was injured, whether he continued working after the accident, and whether he promptly reported his accident, thus calling into question his overall credibility and the circumstances underlying his claimed injuries. Additionally, the record demonstrated that the plaintiff first went to the hospital at least several days after his employer had allegedly terminated him for unexplained, repeated absenteeism.
PRACTICE NOTE: A triable issue of fact sufficient to defeat a motion for summary judgment on liability pursuant to Labor Law § 240(1) may be raised by calling into question a plaintiff’s overall credibility and the circumstances underlying his claimed injuries by identifying various inconsistences in the plaintiff’s account of the accident.
227 A.D.3d 516
May 14, 2024
The Appellate Division found that the lower court correctly denied the defendant’s motion regarding the plaintiff’s Labor Law § 240(1) claim. The defendant raised issues of fact about whether it was a statutory agent that possessed supervisory control over the plaintiff’s work. The defendant was both a construction manager and a general contractor on the project and was responsible for supervising and directing the work, retained subcontractors including the plaintiff’s employer, and was solely responsible for all construction means, methods, sequences, and procedures, and for coordinating all portions of the work. The defendant was also contractually responsible for all of its subcontractors. However, the Appellate Division found that
TOPICS: Labor Law §§ 200 and 240(1)
SIEGEL V. DELTA AIRLINES, INC.
the lower court should have granted the defendant’s motion for summary judgment dismissing the common-law negligence and Labor Law § 200 claims since it did not actually exercise supervision or control over the means or methods of the plaintiff’s injury-producing work. The ladder the plaintiff used was supplied by his employer, and he received his instructions only from his employer and never dealt with the defendant in any way.
PRACTICE NOTE: A statutory agent may be liable, pursuant to Labor Law § 240(1), if it possessed supervisory control over a plaintiff’s work. However, where the statutory agent does not actually exercise any supervision or control over the means and methods of the plaintiff’s injury-producing work, said statutory agent will not be liable to the plaintiff pursuant to common-law negligence and Labor Law § 200.
TOPICS: Labor Law § 240(1), Gravity-related risk, Temporary staircase, Inadequate safety device
CUOMO V. PORT AUTH OF N.Y. & N.J.
210 N.Y.S.3d 314
June 4, 2024
The plaintiff established his entitlement to judgment on his Labor Law § 240(1) claim by showing that the unsecured temporary staircase he was utilizing at the time of his accident was inadequate to protect him from a gravity-related risk. The plaintiff was not required to demonstrate that the staircase was defective as a condition of judgment. Further, any alleged misuse of the temporary staircase by the plaintiff was at most comparative negligence, which is not a defense to a Labor Law § 240(1) claim.
PRACTICE NOTE: If a plaintiff is able to establish that he was provided inadequate protection from a gravity-related risk, he would be entitled to judgment on a claim under Labor Law § 240(1). Any alleged misuse would amount, at best, to comparative negligence, which is a defense to a Labor Law § 240(1) claim.
TOPICS: Labor Law § 240(1), Gravityrelated risk, Lack of proper equipment, Sole proximate cause, Summary judgment
COLON V. NEW YORK CITY DEPT. OF EDUC.
2024 N.Y. App. Div LEXIS 3143
June 6, 2024
The plaintiff claimed to have sustained injury when he and his coworkers lost control of a large stone, causing the plaintiff to slip on dust and fall atop the scaffold on which he had been working. The plaintiff was granted summary judgment on his Labor Law § 240(1) claim, as the accident was considered elevation-related and proper hoisting equipment was not provided to remove the stone during demolition.
PRACTICE NOTE: If a plaintiff is able to establish that he was provided inadequate protection from a gravity-related risk, he would be entitled to judgment on a claim under Labor Law § 240(1). Sole proximate cause cannot be a defense where there is an issue regarding lack of proper safety equipment.
TOPICS: Labor Law § 241(6), Industrial Code § 23-1.7(e)(2), Sharp projection, Commonlaw indemnity, Contractual indemnity, Negligence trigger, Summary judgment
GERVASI V. FSP 787 SEVENTH LLC
2024 N.Y. App. Div LEXIS 3186
June 11, 2024
The plaintiff alleges he was injured as he walked across the site of a renovation project and tripped on a concrete-colored steel pin or nail embedded in a concrete floor. The object, though blending into the floor, extended ½ inch above the floor. The plaintiff demonstrated his entitlement to judgment under Labor Law § 241(6) by establishing that the steel pin or nail was a “sharp projection” that violated § 23-1.7(e)(2) of the Industrial Code in that it was “clearly defined or distinct.” The contractor failed to establish its entitlement to dismissal of cross-claims for common-law indemnification and contribution, as its argument that the object could have been placed post-demolition by the build-out entity was speculative. The defendants should have been granted conditional summary judgment on their contractual indemnity claims
against the contractor and build-out entity, as the indemnity provision was triggered as the claim arose out of the work performed.
PRACTICE NOTE: The plaintiff demonstrated entitlement to judgment under Labor Law § 241(6) by establishing that the steel pin or nail was a “sharp projection” that violated § 23-1.7(e)(2) of the Industrial Code in that it was “clearly defined or distinct.” Commonlaw indemnification and contribution cannot be awarded based on speculation. The terms of the contract determine whether indemnification is triggered by negligence or the work performed.
TOPICS: Labor Law § 240(1), Gravity-related risk, Proper equipment, Issue of fact
HARTIGAN V. GILBANE BLDG. CO.
211 N.Y.S. 3d 75 June 13, 2024
The plaintiff was injured as he climbed down from a retracted man lift. While holding onto the lift’s affixed metal ladder, he slipped due to moisture on the metal rungs and fell to the ground. In reversing the granting of the plaintiff’s motion for summary judgment on liability as to Labor Law § 240(1), the court held that questions of fact remain regarding whether the plaintiff was provided with proper protective devices. While the plaintiff would ordinarily wear a harness for this type of work, he failed to establish that there was a safety device enumerated in § 240(1) that could have prevented the fall.
PRACTICE NOTE: To be entitled to judgment on a claim under Labor Law § 240(1), a plaintiff must establish that there is a safety device of the kind enumerated in the statute that could have prevented the fall.
TOPICS: Labor Law § 240(1), Gravityrelated risk, Lack of proper equipment, Sole proximate cause, Recalcitrant worker, Summary judgment
LOAIZA V. MUSEUM OF ARTS & DESIGN
2024 N.Y. App Div. LEXIS 3391
June 18, 2024
The plaintiff was injured when he fell to the ground while performing commercial
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window washing on the exterior of the building. The plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim was granted on appeal, as he made a prima facie showing that his accident was caused by a failure to provide him with safety devices that offered adequate fall protection. Despite the plaintiff’s failure to perform a safety measure of tying a figureeight knot at the end of the safety line, this omission was at most comparative negligence and not the sole proximate cause of the incident.
PRACTICE NOTE: If a plaintiff is able to establish that he was provided inadequate protection from a gravity-related risk, he would be entitled to judgment on a claim under Labor Law § 240(1). Sole proximate cause cannot be a defense where there is an issue regarding lack of proper safety equipment unless the plaintiff intentionally disregarded a safety instruction.
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TOPICS: Labor Law § 240(1), Gravity-related risk, Safety devices, Foreseeability, Summary judgment
CIAURELLA V. TRUSTEES OF COLUMBIA
UNIV. IN THE CITY OF N.Y.
212 N.Y.S.3d 639
June 25, 2024
The plaintiff was instructed to erect caution tape near the entrance to the interstitial space, a walkable area above the ceiling. The purpose was to keep certain workers from entering the hole-strewn area. The plaintiff utilized a ladder to access the space and was not provided with any additional safety equipment. As the plaintiff stepped on the floor, a 12-inch by 12-inch square section of the floor collapsed from beneath the area where his foot landed, and his right leg fell through the hole. The plaintiff was entitled to summary judgment on his Labor Law § 240(1) claim, as the plaintiff established: (a) the task required the plaintiff to work at an elevator, (b) the plaintiff was exposed to the effects of gravity and fell as a direct result of the force of gravity and (c) the protective devices envisioned by the statute were designed to prevent the hazard that caused the fall. Further, by sending the plaintiff to erect the caution tape, it was apparent that
such an occurrence was foreseeable under the statute.
PRACTICE NOTE: In a case involving the collapse of a permanent structure, a plaintiff must establish that the collapse was foreseeable in the sense of foreseeability of the plaintiff’s exposure to an elevationrelated risk.
TOPICS: Labor Law § 200, Defective and dangerous condition, Labor Law § 241(6), Industrial Code §§ 23-1.7(d), 1.7(e)(1) and (2), Foreign substance, Tripping hazard, Summary judgment
LOURENCO V. CITY OF NEW YORK
2024 N.Y. App Div. LEXIS 3600 June 27, 2024
The plaintiff and his coworkers were in the process of dismantling a sidewalk bridge and rebuilding at another location. The pieces of the sidewalk bridge were placed inside the station. The plaintiff picked up one of the heavy beams and began walking with it to the new location. He saw various rocks, concrete and wood on the ground, which were part of the concrete sidewalk that had been dismantled. There was a 40-foot alu-
minum extension ladder leaning up against the wall inside the station which the plaintiff had to pass. As the plaintiff tried to avoid the ladder, his foot slipped on plastic that was covering the rocks and he fell. The plaintiff was entitled to judgment on his Labor Law § 241(6) claim, as the plastic cover was considered a foreign substance under Industrial Code § 23-1.7(d) and the plastic and rocks were tripping hazards that were not considered integral to the work under Industrial Code §§ 23-1.7(e)(1) and (2), as they were debris left over from previous work. Regarding the dismissal of the plaintiff’s Labor Law § 200 claim, to the extent that this cause of action is predicated on the existence of a dangerous or defective condition, triable issues of fact remain as to whether the defendant had actual or constructive notice of same.
PRACTICE NOTE: Accumulated debris left over from prior work is not considered integral to the work under Industrial Code §§ 23-1.7(d), 1.7(e)(1) and (2).
TOPICS: Labor Law § 240(1), Unsecured ladder, Labor Law § 200, Common-law negligence, Duty of care for third-party defendants
DIBRINO V. ROCKEFELLER CTR. NORTH, INC.
2024 N.Y. Slip Op 03558
July 2, 2024
At the time of the accident, the plaintiff did not retrieve a ladder belonging to his employer, but instead used a ladder that was already set up in an open position in the area. The plaintiff proceeded to climb up
and down the ladder several times to confirm for approximately 15 minutes. He then climbed to the second or third rung of the ladder to begin measuring above his head when the ladder moved and wobbled, and he lost his balance. He tried to jump off the ladder to avoid injury, but his foot became stuck in one of the rungs and he fell, causing him to sustain injuries. The First Department held that the plaintiff was entitled to summary judgment as to liability on Labor Law § 240(1) claim since he established the defendants failed to properly secure a ladder against movement or slippage and to ensure that it remained steady and erect while the plaintiff was on it. The accident reports submitted by the ladder’s owner were insufficient as they were not created by anyone with personal knowledge of the circumstances surrounding the plaintiff’s accident. Even if the worker fell because he lost his footing, this did not defeat the claim. The subcontractor that owned the ladder was entitled to summary judgment on the plaintiff’s negligence claim, as the worker did not obtain permission to use the ladder, which an employee of the subcontractor had left unattended, the subcontractor did not supply or provide the worker with the ladder for use to complete his tasks, the subcontractor had no duty to provide the worker with a safe or adequate ladder, and the subcontractor did not supervise, direct or control the plaintiff’s work.
PRACTICE NOTE: Where a ladder moves or shifts, a plaintiff is going to be entitled to summary judgment on Labor Law § 240(1).
TOPICS: Labor Law § 240(1), Prima facie entitlement, Hearsay
RIVERA V. 712 FIFTH AVEN. OWNER LP 2024 N.Y. Slip Op 03562 July 2, 2024
The plaintiff was working in a building owned by the defendant which was undergoing demolition and renovations. The plaintiff was removing metal ductwork from the ceiling of a bathroom on the 35th floor of the building. To do so, he was provided with an A-frame ladder to reach the ductwork, located approximately 10- to 12-feet above the floor. He was standing on the fourth rung of the ladder, cutting a portion of the ductwork, when it fell and hit him and the ladder. The impact of the duct caused the plaintiff and the ladder to tip and fall to the floor. The First Department held the plaintiff’s testimony that he was not provided with any other safety protection except an unsecured ladder, which fell along with plaintiff when both were hit by the duct, established prima facie entitlement to judgement as a matter of law. The plaintiff was not required to prove the ladder was defective. The accident reports relied on by the defendant failed to raise a triable issue of fact as to whether the plaintiff was the sole proximate cause of his accident where the authors stated they were told that the plaintiff lost his balance, but there were no witnesses to the accident and neither report identified the source of the information or were corroborated by deposition testimony.
PRACTICE NOTE: A plaintiff is not required to prove a ladder is defective to be successful on a Labor Law § 240(1) claim. All the plaintiff must show is that the safety device was unsafe to protect him from the effects of gravity.
TOPICS: Labor Law § 240(1), Labor Law § 241(6), Alteration, Enumerated activity
OCHOA
V. JEM REAL ESTATE CO., LLC
223 A.D.3d 747
January 17, 2024
The plaintiff sustained personal injuries when he fell from an A-frame ladder at a building owned by defendant JEM Real Estate Co. and leased by the defendant Bobwhite Counter. The plaintiff and his coworker were attempting to install an aluminum sign above a commercial storefront, after modifying an existing metal frame to fit the new sign. The Second Department found that the plaintiff established, prima facie, that the ladder was defective and inadequately secured in violation of Labor Law § 240(1), and that these failures were a proximate cause of his injuries. Contrary to the defendant’s contention, the plaintiff also established, prima facie, that he sustained injuries while altering a structure. Furthermore, the Second Department found that the lower court properly denied the branch of the defendant’s cross-motion for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6). The defendants’ submissions failed to raise a triable issue of fact as to whether they violated 12 NYCRR §§ 23-1.163(b) and 23-1.21(b) (3)(iv) and (e)(3), whether such violations were a proximate cause of the accident, and whether the plaintiff’s actions were the sole proximate cause of his injuries.
PRACTICE NOTE: Hanging a permanent sign will be deemed an alteration for purposes of the Labor Law.
TOPICS: Labor Law § 241(6), Industrial Code § 23-1.8(a), Labor Law § 200, Common-law negligence, Supervision and control
MORAN V. TRUSTEES OF COLUMBIA UNIV. IN THE CITY OF N.Y.
224 A.D.3d 830
February 21, 2024
The plaintiff sustained injuries when he fell off a ladder working for his employer, the general contractor, alleging violations of Labor Law §§ 200, 240(1), and 241(6) as well as common-law negligence. The defendant-owner commenced a third-
party action against the general contractor and the defendant-subcontractor seeking contractual and common-law indemnification. The general contractor cross-claimed against the defendant-subcontractor seeking contribution and common-law indemnification. The plaintiff moved for summary judgment on the issue of liability as against the subcontractor. The owner cross-moved for summary judgment on the claim for contractual indemnification against the subcontractor. The subcontractor crossmoved for a summary judgment seeking a dismissal of the complaint, third-party complaint and cross-claims against it. The Second Department denied all motions, holding that the plaintiff failed to establish entitlement to summary judgment because there was conflicting evidence as to how the accident occurred, including whether the ladder was involved in the accident. The court further held that the subcontractor failed to establish that it was not an agent of the general contractor since there were triable issues of fact as to the subcontractor’s authority to supervise and control the plaintiff and as to which entity suppled the defective ladder. Similarly, the owner’s cross-motion was denied because triable issues existed as to the subcontractor’s fault.
PRACTICE NOTE: A subcontractor may be liable under Labor Law §§ 240(1) and 241(6) as an agent of the general contractor or the owner of the premises where evidence demonstrates that the subcontractor had the authority to supervise and control the plaintiff’s injury-producing work.
TOPICS: Labor Law § 241(6), Labor Law § 200
ARGUETA V. CITY OF NEW YORK
223 A.D.3d 862
January 31, 2024
The plaintiff was injured while working at a school construction project in Queens when a tile shard hit him in the right eye as he was disposing of refuse by placing it into a dumpster. The Second Department found that the defendants’ submissions failed to eliminate all triable issues of fact as to whether the injured plaintiff was provided with approved eye protection equipment, whether he was wearing personal eye protection and, if so, whether he removed his
eye protection prior to the accident. The defendants’ failure to make a showing of entitlement to judgment as a matter of law required the denial of that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6). Further, the Second Department confirmed the lower court’s granting the branches of the defendants’ motion which were for summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action. Here, the defendants’ submissions established that they did not have the authority to supervise or control the method or manner in which the injured plaintiff’s work was performed.
PRACTICE NOTE: When moving for summary judgment, the movant must eliminate all triable issues of fact.
TOPICS: Labor Law § 200, Labor Law § 240(1), Homeowner’s exemption, Direct and control, Supervision and control
JIA ZHONG LIU V. YUNG
225 A.D.3d 587
March 6, 2024
The plaintiff alleged common-law negligence and violations of Labor Law §§ 200 and 240(1). The plaintiff, who performed construction work throughout the defendant’s one-family house, allegedly was injured when he fell off an A-frame ladder while addressing a leak in the bathroom. The ladder was supplied and positioned by the defendant, who instructed the plaintiff to climb up and address the leak. The court denied the defendant’s motion for summary judgment, holding that the defendant failed to establish a prima facie that the work performed by the plaintiff at the time of the injury was not a part of the major renovation project at the premises. Moreover, the defendant failed to demonstrate that he did not direct and control the plaintiff’s work and, as such, was exempt from liability under Labor Law § 240(1) as a homeowner of a one-family dwelling. Finally, the court held that the defendant is not entitled to summary judgment as to common-law and Labor Law § 200 claims because he failed to establish that he did not have authority to supervise and control the performance of the plaintiff’s work and did not direct and control the plaintiff’s work.
PRACTICE NOTE: To fall within the homeowner’s exemption, the homeowner must show they did not direct or control the work being performed. Further, general supervisory authority is insufficient to hold a homeowner or contractor liable under Labor Law § 200 or common-law negligence. Liability may only be imposed if the homeowner or contractor has authority to supervise and control the work being performed.
TOPICS: Summary judgment timeliness, Labor Law § 241(6), Industrial Code §§ 23-1.13(b)(3) and (4), Proximate cause
WITTENBERG V. LONG IS. POWER
AUTH.
225 A.D.3d 730
March 13, 2024
The plaintiff was employed as a journeyman lineman and was injured while working on electrical lines from the aerial bucket of a truck pursuant to a contract between his employer and the local electric and power companies. The plaintiff commenced an action against the electric and power companies, claiming violations of Labor Law §§ 200 and 241(6) and common-law negligence. The defendants commenced a third-party action against the plaintiff’s employer seeking contractual indemnification. The third-party defendant moved for summary judgment, seek-
ing dismissal of the plaintiff’s Labor Law § 241(6) causes of action and the third-party complaint. A month after the summary judgment deadline set forth by the court, and without providing an explanation for the delay, the defendants cross-moved for summary judgment seeking the dismissal of the plaintiff’s complaint and on the issue of contractual indemnification against the third-party defendant. The court refused to consider the defendant’s untimely motion to the extent the issues raised in that motion were not identical to the issues raised in the original motion by the third-party defendant. However, the court considered and denied the portions in both defendants’ and third-party defendant’s respective motions seeking a dismissal of Labor Law § 241(6) causes of action, which were raised in both motions and were identical. The court held that the defendants and the third-party defendant failed to establish their entitlement to summary judgment because they failed to demonstrate that the provisions of the Industrial Code claimed to have been violated were not applicable or that the violations were not a proximate cause of the plaintiff’s injuries.
PRACTICE NOTE: The court will not consider a cross-motion for a summary judgment filed after the expiration of the summary judgment motion deadline without proper explanation of the delay unless the issues raised in the cross-motion are identical to the issues
raised in the original motion. In order to prevail on a summary judgment motion seeking a dismissal of Labor Law § 241(6) causes of action, the movant must establish that either the underlying provision of the Industrial Code is inapplicable, or the alleged violation of the Industrial Code was not a proximate cause of the plaintiff’s injuries.
TOPICS: Labor Law § 200, Common-law negligence, Subcontractor, Defective condition, Supervision and control
SAMPERI V. CITY SAFETY COMPLIANCE CORP.
225 A.D.3d 723 March 13, 2024
The plaintiff was employed as a superintendent with the general contractor on a construction project. He was injured when a swinging access gate swung open and hit him. He commenced an action against the owner of the premises and the access gate installer, claiming violations of Labor Law §§ 200 and 241(6), and common-law negligence. The gate installer moved for summary judgment seeking the dismissal of all causes of action and the cross-claims against it. The Second Department held the gate installer was not entitled to a dismissal of the Labor Law § 200 and common-law negligence claims as it failed to establish that it did not create the allegedly
dangerous condition that was a proximate cause of the plaintiff’s injuries.
PRACTICE NOTE: Provisions of Labor Law § 200 implicate two categories of actions. First, where an injury results from a defective condition of the premises and, second, where the injuries arise from the method and manner in which the work is performed. To establish a prima facie entitlement to summary judgment on the first category, the subcontractor must show that it did not create the defective condition and, on the second category, that the subcontractor did not have authority to supervise or control the means or method of the plaintiff’s work.
TOPICS: Fraud on the court, Dismissal, Motion to reargue
FUENTES V. 257 TOPPINGS PATH, LLC
225 A.D.3d 744
March 20, 2024
The plaintiff was injured when he fell 16 feet through an uncovered opening while performing construction work. The plaintiff brought suit for Labor Law violations against the owner and general contractor, and the defendants in turn brought a third-party action against the plaintiff’s employer. The plaintiff alleged injuries to his neck, back and left shoulder. During his deposition, the plaintiff testified that he had never received treatment for his neck or back or had neck or back pain prior to the subject incident. These claims were contradicted by medical records exchanged in discovery. After deposition, the defendants and third-party defendant moved to dismiss the complaint on the ground that the plaintiff had perpetrated a fraud on the court by lying about or failing to disclose his prior treatment. The Supreme Court granted the motion. The plaintiff moved for leave to reargue and renew. Upon reargument, the Supreme Court reversed its earlier decision and held that the defendants and third-party defendant failed to establish that the plaintiff’s deposition testimony was knowingly designed to hinder the factfinder’s fair adjudication of the case and the defendants’ defense thereof. The defendants and third-party defendant appealed. However, the Second Department affirmed the lower court’s ruling.
PRACTICE NOTE: Dismissal based upon alleged fraud requires the moving party to establish, by clear and convincing evidence, that the offending party acted knowingly and in an attempt to hinder a factfinder’s adjudication of the case.
TOPICS: Labor Law § 240(1), Labor Law § 241(6), Industrial Code § 23-1.7(b)(1)(i), Hazardous opening, Elevation risk
FUENTES V. 257 TOPPINGS PATH, LLC
225 A.D.3d 746
March 20, 2024
The plaintiff was a laborer on a construction project and was injured when he fell through an opening in the attic floor while spray-painting insulation. He commenced an action against the owner of the premises and the general contractor claiming violation of Labor Law §§ 240(1) and 241(6). The Second Department held the plaintiff was entitled to summary judgment on both causes of action. The plaintiff’s evidence sufficiently established he was exposed to an elevation risk, that no protective devices were supplied to him to protect him from the hazard, and that this failure was a proximate cause of his alleged injuries. Although the plaintiff testified that his visibility was poor due to the condition of his protective mask, comparative negligence is not a defense to either Labor Law §§ 240(1) or 241(6) causes of action.
PRACTICE NOTE: A failure by an owner, contractor, or their agents to provide a protective covering and safety railing around a hazardous opening on a construction site constitutes a violation of both Labor Law §§ 240(1) and 241(6).
TOPICS: Labor Law § 240(1), Summary judgment, Owner, Relation-back doctrine
RAGUSA V. DRAZIE’S FARM II, LLC
226 A.D.3d 836
April 10, 2024
The plaintiff was allegedly injured in September 2016 when he fell from an A-frame ladder while removing decorations and light fixtures from a column in a tent. The plaintiff brought suit against the owner of the
land. However, the defendant moved for summary judgment, arguing it was not the owner of the real property and also seeking dismissal of the Labor Law § 240(1) cause of action on the same basis. The defendant submitted evidence that it was not the owner of the real property and demonstrated that Drazie’s Farm LLC was the owner of the property. The plaintiff opposed the motion and cross-moved to amend the complaint to add the additional defendant, arguing that the relation-back doctrine applied. The Supreme Court denied the motion to amend, holding that the defendant and Drazie’s Farm LLC were separate legal entities owning adjacent properties and, therefore, were not united in interest as required for application of the relation-back doctrine. The Supreme Court also granted the defendants’ motion for dismissal of the Labor Law § 240(1) cause of action since the defendant established it was not the owner of the subject real property. The plaintiff appealed. However, the holdings were affirmed by the Second Department.
PRACTICE NOTE: Only an owner or contractor, and their agents, may be held liable under Labor Law § 240(1), and summary judgment is appropriate where a defendant establishes it is not the owner of the subject real property where the injury occurred.
TOPICS: Labor Law § 240(1), Elevator, Adequate safety device, Proximate cause, Summary judgment
CARACCIOLO V. SHS RALPH, LLC
226 A.D.3d 859 April 17, 2024
The plaintiff was injured when, in his employment as an elevator mechanic, he stepped off the elevator platform and onto the mezzanine level and fell one story where the floor had yet to be constructed. The general contractor brought a motion for summary judgment seeking dismissal of the plaintiff’s Labor Law §§ 240(1) and 200 causes of action. The Supreme Court held that triable issues of fact existed regarding whether the absence of a safety device was a proximate cause of the incident and whether the plaintiff’s actions constituted the sole proximate cause of his injuries. The Supreme Court also denied the motion with respect to Labor Law § 200,
holding that there were triable issues of fact as to whether the general contractor had actual or constructive notice of a dangerous condition on the premises. The Second Department affirmed.
PRACTICE NOTE: Even in an instance where safety regulations were not applicable, there are possible questions of fact as to whether the lack of safety devices will prohibit a grant of summary judgment on a Labor Law § 240(1) cause of action.
TOPICS: Labor Law § 241(6), Summary judgment, CPLR § 3212(b)
GIRALDO V. HIGHMARK IND., LLC
226 A.D.3d 874
April 17, 2024
The plaintiff was employed at a worksite as a rigger and crane signaler. He was injured when he was struck by a modular unit being hoisted by a crane. The plaintiff brought action for personal injuries alleging violations of Labor Law §§ 240(1), 200 and 241(6), and moved for summary judgment on all three. The Supreme Court denied the plaintiff’s motion for summary judgment on the Labor Law § 200 cause of action finding there remained questions of fact, particularly in relation to proximate cause. As to the alleged violation of Labor Law § 240(1), the Supreme Court held that not all gravity-related hazards are contemplated by Labor Law § 240(1) and liability is contingent upon the existence of a contemplated hazard and the failure to use or inadequacy of a safety device. There remained issues of fact as to whether the accident was the result of an elevation-related hazard. As to the Labor Law § 241(6) cause of action, the Supreme Court denied summary judgment to the plaintiff but executed its authority under CPLR § 3212(b) to search the record and awarded summary judgment to the defendants, dismissing the cause of action predicated upon an alleged violation of 12 NYCRR § 23-8.1(f)(1)(iv). The evidence in the record established that the plaintiff himself had inspected the load prior to it being hoisted and testified that the load was secured and balanced. The Supreme Court therefore held that this Industrial Code provision had not been violated. The plaintiff appealed and the Appellate Division affirmed.
PRACTICE NOTE: Testimony of the plaintiff can be used favorably to establish that there were no violations of the Industrial Code and can serve as an appropriate basis for summary judgment. Additionally, not all gravity-related hazards are contemplated by Labor Law § 240(1).
TOPICS: Labor Law § 241(6), Industrial Code, Eye protection, Summary judgment
CHUQUI V. CONG AHAVAS
TZOOKAH V’CHESED, INC.
226 A.D.3d 960 April 24, 2024
The plaintiff was injured while operating a nail gun when debris from a metal wire to which nails were secured so they could be loaded into the nail gun flew off and hit his right eye. The plaintiff was not wearing eye protection. The plaintiff brought action alleging violations of Labor Law §§ 200 and 241(6) and moved for summary judgment on the § 241(6) cause of action. The court granted summary judgment to the plaintiff. On appeal, the Second Department reversed and held that the Supreme Court should have denied summary judgment on the Labor Law § 241(6) cause of action because the plaintiff’s submissions failed to eliminate a triable question of fact as to whether the work the plaintiff was engaged in at the time of injury required the use of eye protection to trigger application of the cited Industrial Code provision 12 NYCRR § 23-1.8(a).
PRACTICE NOTE: Liability under Labor Law § 241(6) will only apply where there is a violation of an Industrial Code provision which is applicable to the facts of that particular matter.
TOPICS: Labor Law § 240(1), Fall from a ladder
CEVALLOS V. WBB CONSTR., INC.
227 A.D.3d 657
May 1, 2024
The plaintiff was injured when he climbed a ladder to cut a piece of wood that was located overhead. The plaintiff testified that the wood he was cutting fell from overhead and struck his leg and the A-frame ladder he was working on, causing him to fall to the
ground. The plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability under Labor Law § 240(1) by submitting, among other things, deposition testimony that demonstrated that he was directed to cut a piece of wood that was above his head and in doing so the wood fell and knocked him off the ladder that he was using. In opposition, the defendants argued that the plaintiff was the sole proximate cause of this accident because he had ascended to the fourth rung of the five-rung ladder. The court denied the defendants’ motion, finding that they failed to establish that the plaintiff’s use of the ladder in this manner was the sole proximate cause of the accident.
PRACTICE NOTE: Arguing that a plaintiff climbed too high on a ladder, standing alone, will not be sufficient to establish sole proximate cause and avoid liability under Labor Law § 240(1).
TOPICS: Labor Law § 240(1), Materials to be secured, Labor Law § 241(6), Applicability of Industrial Code
FLORES V. FORT GREEN HOMES, LLC
227 A.D.3d 672
May 1, 2024
The plaintiff was injured when, while backfilling a foundation, a fire extinguisher which was resting unsecured on a beam 20 feet above, fell and struck the plaintiff on the head. The parties all moved for summary judgment on the Labor Law §§ 240(1) and 241(6) causes of action. The court denied the plaintiff’s motion for summary judgment regarding the alleged violations of Labor Law § 240(1), holding that the defendants submitted prima facie evidence that the fire extinguisher was not a “material being hoisted or a load that required securing for the purposes of the undertaking at the time it fell” as required by this department’s case law. The plaintiff failed to raise a triable issue of fact in opposition, and summary judgment was properly granted to the defendants. With respect to the Labor Law § 241(6) cause of action, the Supreme Court granted the defendants’ motion for summary judgment, holding that the plaintiff failed to demonstrate that his injuries were proximately caused by violation of an applicable Industrial Code provision. In this case,
the plaintiff relied on 12 NYCRR § 23-1.7(a) (1) which requires that the plaintiff demonstrate that the “area in which the plaintiff was injured was one where workers are normally exposed to falling objects.” Here, the defendants established that the Industrial Code provision was not applicable to the facts of the instant matter and summary judgement was properly granted.
PRACTICE NOTE: Analysis of the specific work activity being performed at the time of injury is critical in determining whether the Labor Law protections and Industrial Code provisions are applicable or could provide an appropriate avenue for summary judgment.
TOPICS: Labor Law § 240(1), Hearsay, Recalcitrant worker, Sole proximate cause, Supervision and control
GUAMAN-SANAGO V. 57 E. 72ND CORP.
227 A.D.3d 677
May 1, 2024
The plaintiff was allegedly injured when he fell from a ladder while performing renovation work inside an apartment. 57 East 72nd Corporation (57 East) was the owner of the building and Rialto Management Corp. (Rialto) managed the building. The nonparty owners of the apartment hired
nonparty GSK Contracting Corp., the plaintiff’s employer, to perform the renovation work. The plaintiff commenced this personal injury action against the defendants, asserting causes of action alleging common-law negligence and violations of Labor Law §§ 200, 240 (1), and 241 (6). At the close of discovery, the plaintiff moved for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240 (1). In opposition to the plaintiff’s motion for summary judgment, 57 East submitted the unsigned, unsworn, and uncertified transcripts of audio recordings of interviews with the plaintiff’s supervisor and a nonparty contractor. The Second Department held that these audio recordings were inadmissible. Further, the court declined to search the record and grant summary judgment to Rialto because the alteration agreement between Rialto and the nonparty owner of the individual apartment where work was being performed raised a triable issue of fact as to the extent to which Rialto had supervisory control and authority over the renovation work.
PRACTICE NOTE: In defending Labor Law claims, it is imperative on all defendants to ensure that all evidence that is relevant and necessary to the defense must be in admissible form. Further, any agreement entered between owners, contractors and subcontractors must clearly spell out the
extent to which each individual entity will exercise supervisory control over the work.
TOPICS: Indemnification, General obligation law
GUAMAN-SANAGO V. 57 E. 72ND CORP.
227 A.D.3d 680
May 1, 2024
The plaintiff was allegedly injured when he fell from a ladder while performing renovation work inside an apartment located at 59 East 72nd Street and owned by two non-party individuals. The building owner, 57 East 72nd Corporation and manager Rialto Management Corp. filed cross-claims against the apartment owners seeking commonlaw and contractual indemnification. The Second Department found that the trial court properly granted that branch of the apartment owner defendants’ motion for summary judgment dismissing the building defendants’ cross-claim for contractual indemnification. In support of their motion, the apartment owner defendants included the proprietary lease between the building defendants and the apartment owner defendants, as well as an alteration agreement between the same parties, to show that both contained identical, broad indemnification provisions. The Appellate Court found that such provisions are unenforce -
able under GOL 5-321 where the lease and alteration agreement were not negotiated at arm’s length by two sophisticated business entities. The building owner defendants’ cross-motion for summary judgment for contractual and common-law indemnification was also denied, as the building owner defendants could not demonstrate that they were not negligent and that the apartment owner defendants’ actual negligence contributed to the accident, or that the apartment owner defendants had the authority to direct, supervise, and control the work giving rise to the plaintiff’s injury.
PRACTICE NOTE: Any party seeking to mitigate risk during a construction project must be sure to negotiate clear, restricted indemnification agreements that will be enforced by the courts.
TOPICS: Labor Law § 240(1), Falling object, Secured load
RZEPKA V. CITY OF NEW YORK
227 A.D.3d 922
May 15, 2024
The plaintiff’s decedent was employed as a brick layer at a renovation project. While standing on a platform attached to a second-floor scaffolding, he was struck by several bricks that fell from above him and died as a result of the accident. The defendants moved for summary judgment, arguing that the bricks were not part of a load that required securing and did not fall due to the absence or inadequacy of an enumerated safety device. The Second Department reversed the trial court order granting the defendant’s motion and found that the defendant did not meet their prima facie burden.
PRACTICE NOTE: In falling object cases under Labor Law § 240(1), the defendant is entitled to summary judgment when the object was not being hoisted, secured, or required securing for the purpose of the undertaking. A general risk of falling objects on a demolition project is not a risk that triggers the protections of Labor Law § 240(1).
TOPICS: Labor Law § 241(6), Amended pleadings, Industrial Code
VERDI
V. SP IRVING OWNER, LLC
227 A.D.3d 932
May 15, 2024
The plaintiff was assigned the task of removing garbage and debris from the fifth floor of a building that was under renovation. During the course of carrying a toilet down the interior staircase of the building, the plaintiff slipped on demolition or construction material and fell. During the course of litigation, the plaintiff moved for leave to amend the bill of particulars to allege a violation of 12 NYCRR § 23-3.3(e) with regard to the Labor Law § 241(6) cause of action and for summary judgment on the issue of liability on the Labor Law § 240(1) cause of action and so much of the Labor Law § 241(6) cause of action as was predicated on violations of 12 NYCRR §§ 23-1.7(d) and 233.3(e). The Second Department overturned the trial court order that denied the plaintiff’s motion to amend the bill of particulars and found that the plaintiff’s proposed amendment was meritorious and did not present new factual allegations or new theories of liability that would prejudice the defendants. Upon reversal, the Appellate Court sent the plaintiff’s motion for summary judgment on the Labor Law § 241(6) claim back to the trial court to determine if NYCRR § 23-3.3(e) was violated and such violation can be a predicate for liability under Labor Law § 241(6).
PRACTICE NOTE: When defending a Labor Law action, the defendants must be aware of all potentially relevant Industrial Code sections that may apply to the facts of the incident, as amendments to the pleadings are freely given and defendants must be prepared to defend against all relevant, but not previously pled, Industrial Code provisions.
TOPICS: Labor Law § 200, Common-law negligence, Supervision and control, Labor Law § 241(6), Industrial Code § 23-1.8(a), Eye protection
GONZALEZ V. CITY OF NEW YORK
227 A.D.3d 958
May 22, 2024
The plaintiff was allegedly injured while dismantling scaffolding outside a New York City
public school. The Second Department held that the lower court properly granted the branches of the defendants’ motion which were seeking summary judgment dismissing the causes of action alleging violation of Labor Law § 200 and common-law negligence. Where, as here, the methods and materials of the work are at issue, and the owner or general contractor exercised no supervisory control over the operation, no liability attaches even if they may have had notice of the allegedly unsafe way the work was performed. The right to generally supervise the work, to stop the work if a safety violation is noted, or to ensure compliance with safety regulations does not amount to the supervision and control of the work necessary to impose liability on an owner or general contractor pursuant to the statute. Further, the Second Department held that the lower court erred in granting the defendant’s motion with respect to Labor Law § 241(6), predicated upon a violation of 12 NYCRR § 23-1.8(a). The evidence submitted in support of the defendant’s motion, which included transcripts of the plaintiff’s 50-H hearing and deposition testimony, failed to eliminate triable issues of fact as to whether the defendant’s failure to require the plaintiff to wear safety goggles was a proximate cause of his alleged injury.
PRACTICE NOTE: To be successful on a Labor Law § 200 claim, a plaintiff must show a defendant exercised supervision and control over the manner and method of the work.
TOPICS: Labor Law § 200, Common-law negligence, Supervision and control, Enumerated activity, Covered worker
MARSHALL V. MANUEL
227 A.D.3d 978
May 22, 2024
The plaintiff sustained personal injuries when she closed her pinky finger in the door of a vehicle parked near the defendants’ premises. The plaintiff alleged that her injuries were sustained in the course of her employment as a meter installer. The defendants argued on summary judgment that, among other points, they did not exercise supervision and control over the plaintiff or the vehicle that caused her injury. Further, the defendants argued that the plaintiff’s accident was not a gravity-related risk encompassed by the Labor Law. The plaintiff’s argument that the defendants’ motion was premature was rejected by the
court, as the plaintiff provided no evidence that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion.
PRACTICE NOTE: In defending Labor Law claims, determine the exact manner in which the accident occurred in order to determine the applicability of the statute.
TOPICS: Owners and contractors, Supervision and control, Prime contractor
DELALUZ V. WALSH
228 A.D.3d 619
June 5, 2024
The plaintiff was injured while performing work at a two-family residence. The defendant-owner contracted with a contractor to renovate her second-floor bathroom. The owner sought to amend the scope of work to add additional granite installation and required the contractor to hire the plaintiff’s company to perform the granite installation work. While the plaintiff was installing granite in the bathroom, he stepped onto an uncovered portion of floor where the bathtub was to be installed later. The plaintiff’s leg went through the subfloor, causing injuries. The contractor was able to successfully establish that they were not a general contractor for the purpose of the Labor Law, rather they were a separate prime contractor along with the plaintiff’s employer. Specifically, the evidence demonstrated that two companies each contracted separately with the defendant-owner and were not in privity with each other. Further, each company was responsible for distinct scopes of work. The defendant-contractor was able to establish they were not present on site when the plaintiff’s accident occurred and, therefore, did not exercise supervision and control over the plaintiff. Accordingly, the defendant-contractor was able to successfully move for summary judgment on the Labor Law §§ 200 and 241(6) claims. The defendant-contractor, however, could not have the common-law negligence claim dismissed, as the deposition testimony confirmed that they created the uncovered bathtub area prior to the plaintiff’s accident. Accordingly, the court found that they created an unreasonable risk of harm that was the proximate cause of the plaintiff’s injuries.
PRACTICE NOTE: In defending Labor Law claims, determine the roles of the parties via contract and scope of work to determine applicability of the statute. While this may be integral in avoiding liability under the Labor Law, a prime contractor may still be liable if their own affirmative negligence creates a risk of harm that is the proximate cause of the injuries.
TOPICS: Labor Law § 240(1), Sole proximate cause, Ladder
PAIBA V. 56–11 94TH STREET CO., LLC
228 A.D.3d 881
June 20, 2024
The plaintiff sustained injury while standing on an A-frame ladder and repairing a hole in the ceiling of a building. The plaintiff testified that while he was standing on the ladder sanding the ceiling, the ladder moved and fell, causing the plaintiff to fall from the ladder and sustain personal injuries. The plaintiff moved for summary judgment on Labor Law § 240(1). The Supreme Court denied the motion. The Second Department reversed the Supreme Court and granted the plaintiff’s motion. The court recited the rule that “when an accident is caused by a violation of Labor Law § 240(1), the plaintiff’s own negligence does not furnish a defense; however, there can be no liability under Labor Law § 240(1) when the plaintiff’s own actions are the sole proximate cause of the accident." The court held that the plaintiff’s showing that the unsecured ladder moved and fell “demonstrated [the plaintiff’s] prima facie entitlement to judgment as matter of law on the issue of liability on the cause of action alleging violation of Labor Law § 240(1)." The court found that, in opposition, the defendants failed to raise an issue of fact as to whether the plaintiff’s own acts or omissions were the sole proximate cause of his accident injuries.
PRACTICE NOTE: The plaintiff’s testimony that an unsecured ladder moved and fell, causing him to fall, provides prima facie evidence entitling the plaintiff to judgment as a matter of law on Labor Law § 240(1).
TOPICS: Roof collapse, Labor Law § 240(1), Foreseeability
SANCHEZ V. CONGREGATION OF EMMANUEL OF WESTCHESTER
228 A.D.3d 893
June 20, 2024
The plaintiff was injured when he fell through a roof while working on a project to repair or replace parts of a roof that sustained water leaks on a building owned by the defendant. The plaintiff fell through the roof when it collapsed, causing him to fall 15 to 18 feet to the cement floor below. The plaintiff moved for summary judgment on Labor Law § 240 (1), which was denied by the Supreme Court. The Appellate Division reversed, holding that “to establish a prima facie case pursuant to Labor Law § 240(1), a plaintiff must demonstrate that the risk of injury from an elevation-related hazard was foreseeable, and that an absent or defective protective device of the type enumerated in the statute was a proximate cause of the injuries alleged.” The Appellate Division held that the need for safety devices to protect the injured plaintiff from an elevationrelated hazard was foreseeable because the plaintiff was replacing wood decking on a pitched, elevated roof that had sustained water leaks. The Appellate Division held the plaintiff’s injuries were proximally caused by the lack of adequate safety devices.
PRACTICE NOTE: Foreseeability is part of Labor Law § 240(1). It comes to the forefront when there is a fall through a permanent structure.
TOPICS: Labor Law § 240(1), Hearsay
VALENTIN V. STATHAKOS
228 A.D.3d
June 26, 2024
The plaintiff was an employee of the thirdparty defendant, who was tasked with demolishing a parapet wall surrounding the roof of a one-story building. The property was owned by the first third-party plaintiff and managed by a second (together, the Fulton defendants). As the plaintiff was descending an internal ladder, which was permanently affixed at its top end to a roof access opening, the ladder detached from its holdings, causing the plaintiff to fall and the ladder to land on top of him. The
Second Department found that the Fulton defendants failed to eliminate the existence of triable issues of fact as to whether they lacked actual and/or constructive notice of the allegedly defective premises condition and control over the worksite. The Fulton defendants failed to establish, prima facie, that they lacked actual or constructive knowledge of the allegedly dangerous condition of the ladder, which the plaintiff described in his deposition as rusty and old. The evidence the Fulton defendants submitted did not eliminate triable issues of fact as to whether the allegedly dangerous condition should have been discovered upon a reasonable inspection. The Fulton defendants failed to establish that they lacked control over the worksite. Additionally, the Second Department confirmed the lower court properly found in favor of the plaintiff with respect to his Labor Law § 240(1) claim. The plaintiff established, prima facie, that he was exposed to an elevation risk within the domain of the statute, through the submission of deposition testimony that the ladder collapsed for no apparent reason and that the inadequately secured ladder was a proximate cause of his injuries. The double hearsay statement relied upon by the Fulton defendants was insufficient to raise a triable issue of fact as to whether the plaintiff was engaged in statutorily protected work.
PRACTICE NOTE: When opposing a motion for summary judgment, all evidence must be in admissible form.
TOPICS: Labor Law § 240(1), Recalcitrant worker, Sole proximate cause.
AMARO V. NEW YORK CITY SCH. CONSTR. AUTH.
2024 N.Y. App Div. LEXIS 248 July 31, 2024
The plaintiff was injured when he was traversing a scaffold and a wooden plank he stepped on broke, causing him to fall and sustain injury. The plaintiff testified that at the time of his accident he was wearing a safety harness with a lanyard attached. The plaintiff testified that he did not tie the lanyard to the scaffold frame while walking on the scaffold to his coworker, who he was assisting, because the plaintiff was carrying a pipe in one hand and a clamp in the other, and therefore was not able to unhook and rehook the 4-foot long lanyard to travel the 20-foot distance to the wall where his coworker was located. The plaintiff moved for summary judgment on Labor Law § 240(1). The Supreme Court denied the motion, and the Appellate Division reversed. The Appellate Division set forth the rule that, “[a]lthough
comparative fault is not a defense to the strict liability Labor Law § 240(1), where the plaintiff is the sole proximate cause of his or her own injuries, there can be no liability under Labor Law § 240(1)." The court stated that “the plaintiff may be the sole proximate cause of his or her own injuries when, acting as a recalcitrant worker, he or she (1) had adequate safety devices available, (2) knew both that the safety devices were available and that he or she was expected use them, (3) chose for no good reason not to do so, and (4) would not have been injured had he or she not made that choice." The court noted that the plaintiff established a prima facie case of a violation of Labor Law § 240(1) because the plaintiff “was subjected to the elevation–related risk of the wooden plank which broke suddenly, causing the injured plaintiff to fall." The court found that the defendants failed to raise a question of fact because they “did not present evidence that the injured plaintiff was recalcitrant in the sense that he was instructed to tie and untie his lanyard to traverse the scaffold and refused to do so."
PRACTICE NOTE: A recalcitrant worker defense cannot be successfully raised if the injured plaintiff was not instructed to utilize an available safety device that would have prevented his accident injuries.
TOPICS: Labor Law §§ 200, 240(1) and 241(6), Statutory employee
WHEAT V. TOWN OF FORESTBURGH
223 A.D.3d 1134
June 25, 2024
The plaintiff was hired by the town’s highway superintendent to repair a damaged salt shed located at the highway department. The work would commence on February 4, 2021. On February 3, 2021, the plaintiff contacted the highway superintendent and asked if he could have a rented lift delivered that afternoon and if he could drop off his equipment trailer at the job site. The evening of February 3, 2021, the plaintiff dropped off his trailer and utilized the lift to take measurements of the shed so he could purchase materials needed for the repair. After completing the measurements, the plaintiff was driving the lift to park it at the side of the shed so that the lift was out of the way. While doing so, the plaintiff drove the lift off the edge of the loading dock that was elevated 40 inches from the ground below and was thrown from the lift, sustain -
ing personal injury. The plaintiff and defendant each moved for summary judgment on the labor law claims. The Supreme Court partially granted the defendant’s summary judgment motion by dismissing the plaintiff’s Labor Law § 241(6) cause of action, but otherwise denied the defendant’s motion.
To establish a Labor Law § 240(1) claim, the court noted that the plaintiff must show that “the statute was violated and that the violation proximately caused his or her injury. To raise a question of fact, the defendant must present evidence that the device furnished was adequate and properly placed and that the conduct of the plaintiff may be the sole proximate cause of his or her injuries." The plaintiff alleged that the safety devices provided were not proper because he was unable to see the edge of the loading dock as he drove the lift. There was no dispute that there were no safety markings on the edge of the loading dock. The defendant however submitted an expert affidavit from an “experimental psychologist" that there were markings that outlined the loading dock area along with a vertical pillar partially painted red and that the textures
of the surface of the loading dock were distinct from the dirt and gravel road below it. The expert set forth that “no additional or alternative posting or marking was necessary for a reasonably alert and attentive person within the incident area to perceive and appreciate the elevation change associated with the loading dock." The Appellate Division held that the defendant met its burden and rebutted the plaintiff prima facie showing liability under Labor Law § 240(1) by submitting evidence raising questions of fact as to whether the plaintiff was a “statutory employee" under Labor Law § 240(1) given that the repair work was agreed to commence the day following the accident. The court found that there was a question of fact as to whether the plaintiff was employed by the defendant on February 3 when the accident occurred.
PRACTICE NOTE: The defendant may raise a question of fact as to whether the plaintiff is a “statutory employee” entitled to protection under Labor Law § 240(1) if the plaintiff had not yet formally started working on the project when the accident occurred.
VASQUEZ V. GILBANE BLDG. CO.
224 A.D.3d 1232
February 2, 2024
The plaintiff, a laborer at a construction site, was injured when a 32-foot-long extension ladder that had been leaning against a wall fell, striking her. According to the plaintiff, the ladder fell as a result of the ground vibrations created by the heavy demolition debris falling in the vicinity of the ladder. The trial court granted her motion for partial summary judgment on Labor Law § 240 and denied the defendants’ cross motion to dismiss the cause of action. The Fourth Department unanimously affirmed. The court rejected the defendants’ argument that the statute was inapplicable since
the ladder that fell on the plaintiff was not in use at the time of the accident, finding that liability under Labor Law § 240 is not limited to cases in which the falling object was in the process of being hoisted or secured and the plaintiff’s submissions established not only that she suffered a gravity-related injury but also that it was an object that required securing for the purposes of the undertaking. The court also rejected the defendants’ sole proximate cause argument – that there were issues of fact whether the plaintiff bumped into the ladder with a wheelbarrow, knocking it over – because the plaintiff unequivocally denied in her deposition that she bumped into the ladder and the defendants’ argument to the contrary was mere speculation based upon the equivocating testimony of a witness who did not personally observe the accident.
PRACTICE NOTE: Sole proximate cause requires a defendant to demonstrate that the plaintiff’s conduct was the only cause of the accident. If the plaintiff establishes that another cause of the accident was the defendant’s statutory violation, liability under Labor Law § 240 is established.
TOPICS: Common-law indemnity, Additional insured coverage
LOSTRACCO V. LEWISTON-PORTER CENT. SCH. DIST.
224 A.D.3d 1248
February 2, 2024
The plaintiff was injured on a school renovation project after tripping on debris located on the project site. The third-party defendant, (Empire) had subcontracted with the general contractor to provide demolition services on the project. The trial court denied third-party defendant’s motion for summary judgment, dismissing the third-party complaint, which raised causes of action for contractual indemnification, common-law indemnification, and breach of contract for failure to procure insurance. The Fourth Department unanimously affirmed. With respect to the common-law indemnification claim, third-party defendant had argued that because it did not exercise control over the plaintiff’s work, even if it had been negligent, the general contractor would have also necessarily been negligent, thereby barring the general contractor from receiving common-law indemnification. The court, observing that an owner’s or contractor’s general authority to coordinate the work and monitor its progress and safety conditions is not a basis for denying summary judgment, rejected the third-party defendant’s argument because its own submissions on the motion not only raised an issue of fact whether it was negligent in creating a dangerous condition by failing to remove the demolition debris, but also failed to demonstrate that the liability of the general contractor was anything but vicarious, arising solely from its status as general contractor. With respect to the breach of contract cause of action, the court observed that while the insurance policy procured by third-party defendant had an automatic-enrollment provision relative to additional insureds, the general contractor’s subcontract with third-party defendant required that not
TOPICS: Labor Law § 240, Sole proximate cause, Falling object
only the general contractor but the owner and construction manager be named as additional insureds and the automaticenrollment provision did not encompass the parties with which it did not have a contract but for which it was contractually obligated to procure insurance.
PRACTICE NOTE: While third-party defendant had demonstrated that the general contractor, by virtue of the fact that it was the general contractor, was responsible for safety on the worksite, the third-party defendant failed to establish that the general contractor had control over the worksite and had created or had actual or constructive notice of the alleged dangerous condition.
TOPICS: Direct and control, Volunteer
TRIEST V. NIXON EQUIP. SERVS., INC.
224 A.D.3d 1364
February 9, 2024
The plaintiff was injured while he was unloading an alignment jack from the back of a van owned by the defendant. At the time of the accident, the defendant’s principal was delivering a loaner jack to be used while it was performing its repair. The plaintiff and the defendant’s principal moved the loaner jack to the edge of the van bed in preparation for lifting it onto a four-wheeled cart. The plaintiff was injured when he and the defendant’s principal lifted the loaner jack to place it onto the cart. The trial court denied the plaintiff’s motion for partial summary judgment on the issue of liability under Labor Law § 240 and granted the defendant’s motion for summary judgment, dismissing the plaintiff’s Labor Law § 200 and common-law negligence causes of action. The Fourth Department unanimously modified the order. First, it affirmed the dismissal of the Labor Law § 240 claim on the ground that the plaintiff was not subject to an elevation-related risk at the time of the accident, observing that the bed of a truck or similar vehicle does not constitute an elevated work surface for purposes of the section. Second, it reversed the grant of the defendant’s motion with respect to Labor Law § 200 and common-law negligence, holding that the defendant failed to meet its initial burden on the motion inasmuch as its own submissions on the motion raised questions of fact whether its principal actually directed or controlled the work that resulted in the
plaintiff’s injuries. Finally, with respect to the Labor Law § 200 cause of action, the court once again observed that the defendant’s own submissions on the motion raised questions of fact whether the plaintiff was a volunteer who offered his services gratuitously when he helped its principal lift the loaner jack insofar as they suggested that the plaintiff was required to offer his services to the defendant based on an understanding with the plaintiff’s employer that the latter’s employees would be available for the defendant’s use when it delivered the loaner jack.
PRACTICE NOTE: The Court of Appeals had previously denied recovery under Labor Law § 240 because the risk of alighting from a construction vehicle was not an elevation-related risk which calls for any of the protective devices of the types listed in the statute.
TOPICS: Labor Law § 240, Drywall, Gravity
JESMAIN V. TIME CAP DEV. CORP.
225 A.D.3d 1189
March 15, 2024
The plaintiff was injured while moving a stack of drywall panels that was leaning against a wall and partially obstructing the doorway of a room he needed to access to perform certain HVAC work. As he and a supervisor from the general contractor moved several of the drywall panels from their position against the wall, the panels tilted too far and fell, striking the plaintiff’s ankle. The plaintiff moved for partial summary judgment on liability under, inter alia, Labor Law § 240 as to the general contractor and the owner. These defendants moved for summary judgment dismissing the complaint and granting contractual indemnification against the plaintiff’s employer, a third-party defendant. The remaining defendant also moved for summary judgment dismissing the complaint. The trial court granted the defendants/third-party plaintiffs’ motion in its entirety, denied the plaintiff’s motion, and denied the third-party defendant’s motion. The Fourth Department unanimously modified the order, reinstated the Labor Law § 240 cause of action, reinstated the cause of action, and denied the defendants/third-party plaintiffs’ motion for contractual indemnification. On the Labor Law § 240 issue, the court observed that
although the stack of drywall panels that fell on the plaintiff was located on the floor and was not being hoisted or secured, issues of fact nonetheless existed as to the applicability of Labor Law § 240, presumably relative to whether the plaintiff’s injuries flowed directly from the application of the force of gravity to the drywall panels and whether the combined weight of the drywall panels could generate a significant amount of force as the stack fell.
PRACTICE NOTE: Although numerous courts have held that Labor Law § 240 is inapplicable because a plaintiff’s injuries resulted from usual and ordinary dangers which exist on a construction site and which did not result from an elevation-related hazard or appreciable height differential because the falling objects were at the same level as the plaintiff and were not being hoisted or secured, courts may still find a genuine issue of fact as to whether the injuries were proximately caused by the application of the force of gravity and whether the combined weight of the falling objects could generate a significant amount of force as they fell.
TOPICS: Lift, Placement of safety device, Foreseeability
WOLFANGER V. ONCE AGAIN NUT BUTTER COLLECTIVE INC.
225 A.D.3d 1213
March 15, 2024
The plaintiff was injured during the construction of a warehouse owned by the defendant. The general contractor on the project had subcontracted certain painting work to the plaintiff’s employer. The plaintiff alleged that while spray-painting at a high elevation in a boom lift in the interior of the building, he experienced dizziness and fell from the lift, which he alleges was exhausting noxious diesel fumes. He alleged, among other things, that the defendants failed to ensure that the boom lift was properly constructed, placed, or operated as to give proper protection to him. The defendants argued that because the hazard of fumes was of such an extraordinary nature or so attenuated from the alleged statutory violation, it constituted a superseding cause sufficient to relieve them of liability. Finding that the defendants had provided the plaintiff with a necessary safety device
– the boom lift – and that any fumes exhausted thereby were an incidental consequence of its physical placement, it held that the plaintiff’s injuries were not caused by an elevation-related risk and dismissed the Labor Law § 240 cause of action. The Fourth Department unanimously reversed, denying the defendants’ motion, reinstating the cause of action, and granting partial summary judgment on Labor Law § 240. Noting that a plaintiff need not demonstrate the foreseeability of the precise manner in which the accident happened or that the injuries occurred in order to establish a prima facie case of Labor Law § 240 and that, instead, a plaintiff need only demonstrate that the risk of some injury from the defendant’s conduct was foreseeable, the court observed that while the plaintiff could not recall the incident, it was undisputed that he fell from the boom lift while it was raised six to eight feet in the air and he had submitted evidence, including an expert affidavit, establishing not only that his injuries were causally related to the fall from the boom lift but also that he was using a boom lift that discharged fumes into the factory. As a result, the court held that the plaintiff had met his prima facie burden on his motion by establishing that his fall was a normal and foreseeable consequence of the placement of the lift, which exhausted noxious fumes too close to him, thereby negating the defendants’ intervening superseding cause argument.
PRACTICE NOTE: It appears that the plaintiff’s expert affidavit was significant in establishing that the risk posed by the lift’s exhaust was a normal and foreseeable consequence of the placement thereof.
TOPICS: Ladder, Sole proximate cause, Safety devices
KRAUSE V. INDUSTRY MATRIX, LLC
227 A.D.3d 1560
May 10, 2024
The plaintiff was injured when he fell from a ladder while performing chimney pointing work on a residential rental building owned by the defendant/third-party plaintiff. In a 3-2 decision, the Fourth Department affirmed the trial court’s denial of the plaintiff’s motion for partial summary judgment on Labor Law § 240. The majority observed that, while the plaintiff met his initial burden
of establishing that the ladder was not so placed as to give proper protection to him through evidence that he fell when the ladder suddenly and unexpectedly shifted, thereby shifting the burden to the nonmovant, it held that the defendant/thirdparty plaintiff successfully raised a triable issue of fact as to whether the plaintiff’s own conduct, rather than any violation of Labor Law § 240, was the sole proximate cause of his accident with evidence suggesting that he fell from the ladder because he missed a step while descending, not because the ladder shifted or otherwise failed. Interestingly, in this regard, the majority concluded that even assuming, arguendo, that some of the evidence relied on by the defendant/third-party plaintiff was inadmissible hearsay (i.e., uncertified hospital records containing a statement by the plaintiff blaming his fall on, among other things, missing a step), the trial court
had properly considered such evidence in opposition to the plaintiff’s motion because it was not the only proof the defendant/ third-party plaintiff had relied upon. The dissent would have reversed on the basis that the defendant/third-party plaintiff failed to meet what it called “a necessary element” of establishing a question of fact on sole proximate cause in that it did not affirmatively establish that it had provided any safety equipment at all to the plaintiff and, therefore, did not show that the ladder was an adequate safety device. The majority, however, dismissed this argument because it was not advanced by the plaintiff in his appellant’s brief and, therefore, not properly before the court.
PRACTICE NOTE: Conflicting evidence regarding how the accident occurred will raise a genuine issue of fact precluding a Labor Law finding.
Symbols
12 NYCRR § 12-1.7(d) 8
12 NYCRR § 23-1.7(d) 6
A
Additional insured coverage 27
Adequate safety device 20
Alteration 18
Amended pleadings 23
Applicability of Industrial Code 21
B
Burdens of proof 9
C
Common-law indemnity 8 15 27
Common-law negligence 17 18 19 23
Comparative negligence 6
Competing experts 8
Construction manager 6
Contractual indemnity 8 9 15
Contribution 8
Covered work 8
Covered worker 7 23
CPLR § 3212(b) 21
D
Dangerous condition 11
Defective and dangerous condition 16
Defective condition 19
De minimis height differential 13
Direct and control 18 28
Dismissal 20
Drywall 28
Duty of care for third-party defendants 17
E
Elevated surfaces 8
Elevation risk 20
Elevator 20
Employer-employee relationship 7
Employer instructions 9
Enumerated activity 6 8 18 23
Eye protection 21 23
F
Fall from a ladder 5 21
Falling object 9 12 14 23 27
Force of gravity 5
Foreign substance 16
Foreseeability 13 16 24 28
Fraud on the court 20
General obligation law 22
Gravity 28
Gravity-related risk 15 16 H
Hazardous opening 12 20
Hearsay 17 22 24
Homeowner's exemption 11 18
I
Inadequate safety device 15
Indemnification 22
Industrial Code 5 6 10 21 23
Industrial Code § 23-1.29 11
Industrial Code § 23-1.7(b)(1)(i) 20
Industrial Code §§ 23-1.7(d), 1.7(e)(1) and (2) 16
Industrial Code § 23-1.7(e)(1) 11
Industrial Code §§ 23-1.7(e)(1) & (e)(2) 12
Industrial Code § 23-1.7(e)(2) 15
Industrial Code § 23-1.8(a) 18 23
Industrial Code §§ 23-1.13(b)(3) and (4) 19
Industrial Code § 23-2.1(a) 12
Integral to the work 4 6
Issue of fact 11 14 15 L
Labor Law § 200 5 9 11 12 13 16 17 18 19 23
Labor Law §§ 200, 240(1) and 241(6) 26
Labor Law §§ 200 and 240(1) 14
Labor Law § 240 27 28
Labor Law § 240(1) 5 7 8 9 10 12 13 14 15 16 17 18 20 21 22 23 24 25
Labor Law § 241(6) 5 6 8 9 10 11 12 14 15 16 18 19 20 21 23
Lack of proper equipment 15
Ladder 8 24 29
Lift 28 M
Materials to be secured 21
Means and methods 6 9
Motion to reargue 20
Motion to renew 11
Negligence trigger 15 Notice 11
Owner 20
Owners and contractors 24
Permanent structure 13
Placement of safety device 28
Pleadings 7
Pre-depositions 12
Prime contractor 24
Prima facie entitlement 17
Proper equipment 15
Property’s commercial purpose 11
Proximate cause 19 20
Recalcitrant worker 10 15 22 25
Relation-back doctrine 20
Repair 7
Roof collapse 24
Routine maintenance 7 S
Safety devices 8 9 16 29
Safety equipment 10
Secured load 23
Sharp projection 15
Slip and fall 5
Slipping hazard 4
Sole proximate cause 8 9 10 15 22 24 25 27 29
Spoliation 11
Statutory agent 6
Statutory defendants 14
Statutory employee 26
Subcontractor 19
Summary judgment 11 12 14 15 16 20 21
Summary judgment timeliness 19
Supervision and control 18 19 22 23 24 T
Temporary staircase 15
Tripping hazard 12 16 U
Unguarded opening 7
Unsecured ladder 17
V
Vertical passageways 5
Volunteer 28
CONSTRUCTION
CONSTRUCTION
New York Labor Law
Tuesday, December 12, 2023
12 PM ET/9 AM PT
Refresher: Building Blocks and Notable Recent Cases
Theodore W. Ucinski and Kelly A. McGee
Wednesday, November 13, 2024
12 PM ET/9 AM PT
Theodore W. Ucinski and Kelly A. McGee
Hear a recap of the latest rulings and review the basics of NY Labor Law §§ 240(1), 241(6) and 200 in this live presentation based on our popular Labor Law Update biannual publication. Attorneys Theodore W. Ucinski and Kelly A. McGee, partners in our Construction Litigation and Counsel practice group, share their expertise in a webinar designed to help anyone who needs to know the fundamentals of Labor Law as well as the advanced practitioner who wants an update on recent decisions.
WHO SHOULD ATTEND:
› Insurance Professionals
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ATTENDEES WILL LEARN:
› The basics of New York Labor Law
› The theory behind the most prominent Court of Appeals cases
› The current state of the law, with a discussion of some of the recent Appellate Division cases
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