First Department

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

SAAVEDRA V. 111 JOHN REALTY CORP. 115 N.Y.S. 3d 303 January 7, 2020

The First Department affirmed a finding of summary judgment in favor of the plaintiff, who established a prima facie case of Labor Law §240(1) violation with undisputed evidence that his accident occurred when the scaffold on which he was working collapsed. The defendants failed its sole proximate cause defense because, even if as they contend, the plaintiff was instructed not to use scaffolds belonging to other trades working at the site of his accident, “an instruction to avoid an unsafe practice is not a sufficient substitute for providing a worker with a safety device to allow him to complete his work safely.”

PRACTICE NOTE: An instruction to avoid unsafe work practices is not sufficient for compliance with § 240.

TOPICS:Labor Law § 241(6), Masonite, Integral part of the work

KRZYZANOWSKI V. CITY OF NEW YORK 118 N.Y.S. 3d 10 January 14, 2020

The plaintiff, a painter, alleged a Labor Law § 241(6) violation when walking down a hallway at a worksite and tripping upon wooden boards that were laying on the floor. He alleged that the boards were a tripping hazard and a violation of Industrial Code §23-1.7(e)(1) because the defendants failed to provide him with a passageway free of obstructions. The defendants argued that there could be no liability because the boards were Masonite and not scattered materials or debris. The boards were purposely laid out upon the floor each day as being “an integral part of the work.” The court found the defendant’s testimony insufficient to establish as a matter of law that the Masonite boards were a protective floor covering integral to the work. The plaintiff’s motion was denied because he failed to establish that the boards were accumulated debris or scattered materials and not protective covering purposely placed on the floor while there was ongoing construction.

PRACTICE NOTE: In Masonite cases alleging a violation of Industrial Code §23-1.7(e)(1), the plaintiff must prove that his accident was caused by accumulated debris or scattered materials. TOPICS:Labor Law § 241(6), Slip/trip and fall, Accumulated debris

MOONEY V. BP/CG CENTER, LLC 117 N.Y.S. 3d 206 January 14, 2020

An order granting the defendants summary judgment under Labor Law § 200 was unanimously affirmed. The plaintiff alleged personal injuries when he knelt on a screw lying on the floor of a construction site where he was installing cabinets. The record demonstrates that the defendants neither created or had notice of the condition of the floor nor exercised any control over the manner and means of the plaintiff’s work. The defendants were not liable under Labor Law § 241(6). The plaintiff cited Industrial Code §23- 1.7(e)(1) or (e)(2). However, a single screw upon which the plaintiff knelt does not constitute “an accumulation of dirt and debris.”

PRACTICE NOTE: In order for the plaintiff to establish a § 241(6) violation based upon a violation of Industrial Code § 23-1.7(e)(1), the plaintiff must prove that his accident was caused by accumulated debris or scattered materials.

TOPICS:Bi-state entities, Labor Law § 241(6), Labor Law § 200

ROSARIO V. PORT AUTHORITY OF NEW YORK AND NEW JERSEY 114 N.Y.S. 3d 219 January 16, 2020

The court properly rejected the Port Authority’s arguments that it is a bi-state entity created by a federally approved compact and that it cannot be held liable under Labor Law §§ 240 or 241(6) for injuries the plaintiff sustained while working in a building owned by the Port Authority. The court stated that the Compact Clause of the U.S. Constitution is not implicated by the application of such state workplace safety statutes to the Port Authority worksite located in New York, which does not encroach upon federal supremacy.

PRACTICE NOTE: The Compact Clause does not impact workplace safety statutes as they apply to bi-state entities. TOPICS:Summary judgment, Labor Law § 240(1), Gravity-related risk

UTIERREZ V. 610 LEXINGTON PROP., LLC 179 A.D.3d 513 January 16, 2020

The plaintiff claimed he fell when he lost control of a cement form that was being handed down to him from a scaffold above by other workers. In contrast, the defendants submitted evidence that the plaintiff lost control of the material when he was scratched by a nail and that he was being handed a plywood cover rather than the heavier cement form claimed by the plaintiff. The court awarded the plaintiff summary judgment on his Labor Law § 240(1) claim since both versions of the incident fell within the ambit of § 240(1).

PRACTICE NOTE: It has been a long standing rule that summary judgment on § 240(1) will be granted even when there is more than one version of events if both versions are a violation of the Labor Law.

TOPICS:Hazardous openings, Stairwell, Barricades, Gravity-related risk, Sole proximate cause, Comparative negligence, Protective equipment, Supervisory control, Burden of proof

SOTARRIBA V. 346 W. 17TH ST., LLC 118 N.Y.S.3d 90 January 28, 2020

The plaintiff, an electrical worker, fell through an unprotected stairwell opening and struck the concrete floor. The plaintiff claims he fell off a ladder, however, the defendants claim the plaintiff lost his balance while climbing over a four-foot-high barricade blocking access to the stairwell. The court found that the plaintiff was entitled to Labor Law § 240(1) despite a conflicting version of events because the plaintiff was not provided with adequate protection to prevent his fall into the unguarded stairwell opening. Further, contrary to the defendants’ contention, the plaintiff’s conduct was not the sole proximate cause of his injuries in their version of the facts because even if the plaintiff were negligent for choosing to climb over the barricade, his negligence would only raise an issue as to comparative negligence, which is not a defense to a Labor Law § 240(1) claim.

PRACTICE NOTE: In a sole proximate cause case, the court will first examine whether the defendant was compliant with § 240(1) in providing adequate fall protection as opposed to the worker’s comparative fault, which is not a defense to a § 240(1) claim.

TOPICS:Summary judgment, Labor Law § 240(1), Gravity-related risk, Sole proximate cause

CORTES V. MADISON SQ. GARDEN CO. 179 A.D.3d 620 January 30, 2020

Summary judgment was denied to the plaintiff, as steamfitter, on his Labor Law § 240(1) claim where the defendants raised a triable issue of fact as to whether the plaintiff was the sole proximate cause of his injuries. The plaintiff testified that a piece of Masonite, that the ladder he was using was placed upon, allegedly “kicked out.” The defendants argued that the plaintiff’s conduct was the sole proximate cause of his accident. He was provided with adequate protection; a safe ladder and that he leaned off of the ladder causing it to become unstable. The defendants further argued no casual nexus between his accident and the lack of or failure of any safety device.

PRACTICE NOTE: In order to establish that the plaintiff’s conduct was the sole proximate cause of his accident, the defendants must prove its compliance with the statute in providing proper and adequate safety devices and lack of causal connection between the accident and the lack or failure of any safety devices.

TOPICS:Elevation-related hazard, Safety devices, Protected activity

O’BRIAN V. 4300 CRESCENT LLC 180 A.D.3d 437 February 6, 2020

The plaintiff was injured when a stack of windows stored vertically against a wall tipped over and fell on him. The court overturned summary judgment in favor of defendants on Labor Law § 240(1) and held that the accident arose from an elevation-related risk contemplated by the statute. The plaintiff’s injuries flowed directly from the application of the force of gravity to the windowsand the elevation differential was not de minimis, as the combined weight of the windows could generate a significant amount of force during the short descent. Triable issues of fact existed as to whether the windows were properly secured and the dispute as to whether a protective device could have provided adequate protection.

PRACTICE NOTE: Even though an object may be at the same level as the plaintiff, § 240(1) will still apply if the item tips and there is a height differential between the plaintiff and the portion of the item which strikes the plaintiff. § 240(1) is applicable where a plaintiff’s injuries flow directly from the application of the force of gravity.

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

NATOLI V. CITY OF NEW YORK 180 A.D.3d 477 February 11, 2020

The plaintiff was injured when he and a coworker were attempting to move a pallet. At trial, the plaintiff’s expert testified the pallet was of such a size, weight, and configuration that a safety device such as a hoist, crane, or other safety device should have been provided to move it. The jury concluded the defendants violated Labor Law § 240(1). The Appellate Division upheld the verdict based upon the expert finding.

PRACTICE NOTE: Expert opinions should be explored in a Labor Law case as their opinions could significantly impact a liability determination.

TOPICS:Means and methods, Authority or control over work, Industrial code regulations

LETTERESE V. A& F COMMERCIAL BLDRS., LLC 180 A.D.3d 495 February 13, 2020

The plaintiff was injured when he fell over a protruding affixed rebar dowel that allegedly blended into the surrounding area. The court upheld summary judgment in favor of the defendants on Labor Law §§ 241(6) and 200. The court held that 12 NYCRR § 23-1.7(e)(2) does not apply because the rebar dowel was an integral part of the work being performed. The court further held that the dowel was created by the means and methods of the work of the plaintiff’s employer and its subcontractor. The defendant did not direct or exercise supervisory control over the plaintiff’s work, his employer, or its subcontractor.

PRACTICE NOTE: When material or equipment was installed as an integral part of the project, it cannot be considered accumulated debris, scattered toolsand materials, or a sharp projection. TOPICS:Elevation-related hazard, Means and methods, Authority or control over work

VOHRA V. MOUNT SINAI HOSP. 180 A.D.3d 503 February 13, 2020

The plaintiff was injured while dismantling a scaffold. The court upheld summary judgment on Labor Law § 240(1) against the scaffold company as the statutory agent of the general contractor that had been hired for the installation and dismantling of scaffolding. The court also held that the property owner was entitled to common law indemnification from the scaffold company because it exercised supervision and control over the injury producing work. The scaffold company’s motion seeking dismissal of the Labor Law § 200 and common law negligence claims was properly dismissed as there were issues of fact as to whether they had notice of a dangerous condition on the worksite and whether the injury was caused by the manner in which the work was being performed.

PRACTICE NOTE: To establish § 200 liability, the defendant must exercise supervisory control over the injury-producing work.

TOPICS:Summary judgment, Labor Law § 240(1), Gravity-related risk, Sole proximate cause

TOURAY V. HFZ 11 BEACH ST., LLC 180 A.D.3d 507 February 13, 2020

Summary judgment was granted to the plaintiff on his Labor Law § 240(1) claim despite expert testimony that the plaintiff’s conduct was the cause of his own accident. The plaintiff and his coworkers were pushing an A-frame cart loaded with cement boards. As they were pushing it, the wheel of the cart became stuck. As the plaintiff and his coworkers pushed and pulled the cart, it toppled causing the cement boards to land on the plaintiff. Even though the defendant’s expert opined the cart was a sufficient safety device for the task being performed and the plaintiff’s acts caused the accident, the court found the weight and height of the cement boards in combination with the elevation differential was sufficient to award summary judgment.

PRACTICE NOTE: An expert’s opinion must be precise enough to show why § 240(1) does not apply rather than address a single component of the statute.

TOPICS: Labor Law § 240(1), Permanent structure, Ceiling collapse, Foreseeable risk, Protective equipment, Elevation-related hazard, Sole proximate cause, Labor Law § 200, Constructive notice, Renovation, Demolition, Ramp, Lifts

LIND V. TISHMAN CONSTRUCTION CORP. OF NEW YORK 118 N.Y.S. 3d 601 February, 13, 2020

The plaintiff, was injured when the lift he was working on suddenly picked up speed as he backed it down a ramp, but due to “slippery sludge” on the ramp, the lift skidded and crashed into a curb causing him to be “ricocheted “ around the lift basket sustaining personal injuries. The plaintiff was granted summary judgment on his Labor Law 240(1) claim. The court found that the lift was a safety device and that its failure to protect the plaintiff from the elevation-related risk that he faced was the proximate cause of his injury.

PRACTICE NOTE: A worker using a lift will be afforded protections under § 240(1).

TOPICS:Labor Law § 240(1), Ceiling collapse, Foreseeable risk

CLEMENTE V. 205 W. 103 OWNERS CORP. 119 N.Y.S.3d 109 February 18, 2020

The plaintiff alleged he was injured while renovating an apartment unit when the bathroom ceiling collapsed on him. There were issues of fact as to whether the ceiling was in an advanced state of disrepair due to water damage and whether the plaintiff’s work on the bathroom walls exposed him to a foreseeable risk of injury from an elevation-related hazard, the ceiling collapse. The court also determined an issue of fact as to whether the absence of a type of protective device enumerated under Labor Law § 240(1) was a proximate cause of his injuries. Because the evidence of water stains on the bathroom ceiling could provide constructive notice of a dangerous condition, summary judgment dismissing the plaintiff’s common law negligence and Labor Law § 200 claims was improperly granted. The defendants failed to show that the plaintiff was not engaged in demolition work to trigger § 241(6). His task was part of a larger project that included the demolition of interior walls, “which altered the structural integrity of the building.” of a completed and permanent building structure, the plaintiff must show that the failure of the structure was a foreseeable risk, creating a need for an enumerated device.

TOPICS:Elevation-related hazard, Safety devices, Sole proximate cause

CARPENTIERI V. 309 FIFTH AVE., LLC 180 A.D.3d 571 February 20, 2020

The plaintiff was injured while applying masking tape to a wall fixture and standing on the top plank of a scaffold four feet above the floor. The plank flipped up and the plaintiff fell to the floor. The plaintiff established that were no guardrails and he was not supplied with any other safety devices. The court held that the plaintiff made a prima facie showing that his injuries were caused by a violation of Labor Law § 240(1). The defendants failed to raise a triable issue of fact with testimony of a site safety manager that he saw another scaffold at the site after the accident that did not appear defective. Even if the defendants submitted admissible evidence of the plaintiff’s negligence, the plaintiff was at most comparatively negligent, which is not a defense to § 240(1).

PRACTICE NOTE: Evidence that the non-defective device was onsite at the time of accident will not defeat a § 240(1) finding if the plaintiff’s accident was caused by a defective safety device.

TOPICS:Summary judgment, Special employee

REYES V. ROMAN CATHOLIC CHURCH OF ST. RAYMOND 180 A.D.3d 590 February 25, 2020

Summary judgment was awarded to St. Raymond’s Church dismissing the plaintiff’s Labor Law causes of action finding that plaintiff was its special employee. Although the plaintiff was an employee of a cleaning company, the court found St. Raymond’s facilities manager supervised, controlled, and directed his work, which was for the sole benefit of St. Raymond.

PRACTICE NOTE: The Labor Law practitioner should always keep in mind that a worker may have a general employer and a special employer and exploit that avenue if it can be shown that the special employer had sufficient control over the worker. TOPICS:Labor Law § 240(1), Ladder, Permanent structure, Vibrations, Harness, Repair work, Routine maintenance, Comparative negligence, Sole proximate cause

KEHOE V. 61 BROADWAY OWNER, LLC 121 N.Y.S.3d 230 February 27, 2020

The plaintiff was ascending a ladder in an elevator shaft that vibrated and caused him to fall 20 feet to the floor of the shaft. The plaintiff was performing repair work, not routine maintenance, at the time of his accident, which falls within Labor Law § 240(1). While an unsecured ladder that moves or shifts constitutes a prima facie violation of § 240(1), here, an issue of fact existed as to whether the ladder, which was secured and permanently affixed, but nonetheless allegedly vibrated, provided proper protection for the plaintiff. To the extent a ladder fails to provide proper protection, a plaintiff’s failure to use a harness amounts at most to comparative negligence, which is not a defense to a § 240(1) claim. The court found that the defendants failed to establish that the plaintiff was the sole proximate cause of his accident, as they submitted no evidence that the plaintiff knew that he was supposed to use a harness for climbing ladders or that he disregarded “specific instructions” to do so.

PRACTICE NOTE: A plaintiff’s failure to use a harness is not a viable “sole proximate cause” defense to § 240(1) where there is no evidence that the plaintiff knew that he was supposed to use a harness for climbing ladders or that he disregarded “specific instructions” to do so.

TOPICS:Labor Law § 240(1), Sidewalk shed, Collapse, Demolition, Labor Law § 200

LEVERON V. PRANA GROWTH FUND I, LP 121 N.Y.S.3d 242 March 10, 2020

The plaintiff, an employee of a nonparty sidewalk shed contractor, was injured when three or four sections of a sidewalk shed that he was dismantling collapsed onto him. The collapse of the sidewalk shed is prima facie evidence of a violation of Labor Law § 240(1). The plaintiff’s inability to identify the specific piece of the sidewalk shed that struck him is not fatal to his claim, as he is not required to establish the exact manner in which the accident occurred. Moreover, securing the sidewalk shed against collapse would not have been contrary to the purpose of the

undertaking. The three or four sections that collapsed onto the plaintiff when “everything slipped apart” were not the intended target of the demolition at the time of the accident. Although the plaintiff abandoned his Labor Law § 200 and common law negligence, the court further ruled that because the plaintiff’s accident resulted from the means and methods of his work, which was directed and controlled solely by his employer, the defendants were entitled to summary judgment dismissing these claims.

PRACTICE NOTE: The collapse of a sidewalk shed is prima facie evidence of a violation of § 240(1).

TOPICS:Sole proximate cause, Elevationrelated hazard

RODRIGUEZ V. BSREP UA HERITAGE LLC 181 A.D.3d 537 March 26, 2020

The plaintiff was injured when the 10-foot ladder he was working on suddenly slipped and tipped over causing him to fall to the ground. The court affirmed summary judgment on behalf of the plaintiff on the Labor Law § 240(1) claim and the portion of the Labor Law §241(6) claim that was based on violations of NYCRR § 23-1.21. The court held that the plaintiff was not required to show that the ladder was otherwise defective. The defendant failed to raise a triable issue of fact that the plaintiff was the sole proximate cause of his injuries. According to the court, the plaintiff’s failure to secure the ladder was at most comparative negligence. Further, the plaintiff’s failure to ask his coworkers to hold the ladder did not constitute the sole proximate cause of the accident because a coworker is not a safety device contemplated by the statute.

PRACTICE NOTE: A plaintiff must be the sole proximate cause of his accident in order for a defendant to prevail on summary judgment. A coworker holding a ladder is not a safety device contemplated by the statute. TOPICS:Pipes, Tripping hazard, Doorway, Passageway, Floor, Labor Law § 241(6), Labor Law § 240(1), Restricted work area, Sole proximate cause

ARMENTAL V. 401 PARK AVE. S. ASSOC., LLC 121 N.Y.S.3d 259 April 2, 2020

The plaintiff was injured when he was caused to fall on a pile of loose pipes near a doorway. As to the plaintiff’s Labor Law § 241(6) claim, the court found that there were questions of fact as to whether the accident was caused by a tripping hazard in a passageway per Industrial Code § 23-1.7(e)(1); whether the accident was caused by a violation of § 23- 1.7(e)(2), since part of the floor where workers worked or passed was not kept free from scattered tools or materials; and whether the unsecured pipes, which were allegedly piled about two feet high directly in front of the doorway, were safely stored pursuant to § 23-2.1(a)(1). The court further held that Industrial Code § 23-2.1(b) (disposing of debris) is insufficiently specific to serve as a predicate for a § 241(6) claim. Due to these issues of fact regarding whether defendants negligently created the hazardous condition by directing the placement of the pipes, by failing to properly coordinate work on the site and/or had actual or constructive notice of the condition, the plaintiff’s Labor Law § 200 claim remains viable. With respect to the other Labor Law claims, the court held that § 240(1) does not cover a fall allegedly caused by stepping on a pile of unsecured pipes on the floor of a construction site.

PRACTICE NOTE: § 240(1) does not cover a fall allegedly caused by stepping on a pile of unsecured pipes on the floor of a construction site. Where there are issues of fact, including conflicting testimony about whether the plaintiff disregarded limitations on walking through a restricted area at the time of his accident, summary judgment on the a sole proximate cause defense is improper.

TOPICS:Labor Law § 200, A-Frame cart, Creation of hazardous condition, Constructive notice, Burden of proof

NASSAR V. MACY’S INC. 119 N.Y.S.3d 860 April 2, 2020

The plaintiff was injured on an A-frame cart. The defendant contends that it cannot be held liable for the plaintiff’s injuries under Labor Law § 200 or in common law negligence because it lacked the requisite supervisory control over the means and methods of the plaintiff’s work. However, the court found that an issue of fact existed as to whether the defendant lent the plaintiff the A-frame cart involved in his accident. If the defendant lent the cart, then the defendant must demonstrate that it neither created nor had actual or constructive notice of the dangerous or defective condition of the cart.

PRACTICE NOTE: To demonstrate that the defendant neither created nor had actual or constructive notice of the dangerous or defective condition, the defendant must do so affirmatively and cannot simply point to “gaps in plaintiff’s proof.”

TOPICS:Labor Law § 240(1), Labor Law § 241(6), Hazardous openings, Falling objects, Special verdict sheet, Evidence of negligence

BAPTISTE V. RLP-EAST, LLC 122 N.Y.S.3d 292 April 9, 2020

The plaintiff was injured when he was struck by a plank of wood that fell from work above, triggering Labor Law § 240(1) liability. The uncontroverted evidence was that the plaintiff was in an area where he was exposed to falling objects, and that the pass through opening to the floor above should have been covered at the time of his accident, but was not, in violation of Industrial Code § 23-1.7(a)(1). The defendants failed to offer any evidence that the Industrial Code violation was not unreasonable under the circumstances, and thus did not rebut the plaintiff’s entitlement to judgment as a matter of law on his Labor Law § 241(6) claim. Notwithstanding, the court found that the trial court erred in submitting to the jury a special verdict sheet which combined all liability claims together, making it impossible to determine on which claim or claims the jury found in favor of the plaintiff. The single combined question makes it theoretically possible that the jury found in favor of the plaintiff solely on a violation of the Industrial Code, when such a violation in and of itself is insufficient to impart liability.

PRACTICE NOTE: A violation of § 240(1) in and of itself is a finding of negligence and liability, whereas a violation of a provision of the Industrial Code is only evidence of negligence, § 241(6) requires the additional finding that the violation showed a lack of reasonable care.

TOPICS:Labor Law § 241(6), Labor Law § 200, Industrial code regulations, Duty of care

OHADI V. MAGNETIC CONSTR. GROUP CORP. 182 A.D.3d 474 April 16, 2020

The plaintiff was injured when he slipped and fell down a staircase while working at a building renovation. The plaintiff alleged that after he fell, he observed dust on his clothes and at the bottom of the stairs. The evidence also showed that the walls near the staircase had been sanded just prior to the plaintiff’s accident. The plaintiff brought an action based upon violations of Labor Law §§ 200 and 241(6) predicated on violations of Industrial Code 23-1.7(e)(2) and 1.7(d). The court found an issues of fact as to whether the plaintiff slipped on dust or debris that had accumulated on the stairs and whether the staircase on which the plaintiff fell was a work area at the time of the accident. The court also denied summary judgment to a contractor that delegated cleaning work and found the contractor liable under § 241(6) as a statutory agent. The court further refused to dismiss the § 200 claim against this defendant, as there was no evidence as to when it had last cleaned the stairway.

PRACTICE NOTE: In order to make a § 241(6) case based upon a slip/trip and fall caused by debris, the plaintiff must present evidence of accumulation in the plaintiff’s work area.

TOPICS:Summary judgment, Motion practice

LYONS V. NEW YORK CITY ECONOMIC DEV. CORP. 182 A.D.3d 499 April 23, 2020

The lower court decision granting defendants’ motion for summary judgment as to the common law negligence and Labor Law § 200 causes of action was overturned and denied as premature. At the time the motion was filed, no depositions had taken place and no paper discovery had been exchanged including any records related to the installation, maintenance, or repair of the mesh walkway where the plaintiff fell.

PRACTICE NOTE: A summary judgment motion will be denied as premature when a party demonstrates that facts essential to justify opposition to the motion may lie within a defendants’ exclusive knowledge or control. TOPICS:Labor Law § 240(1), Interceding and superseding causes

MORERA V. NEW YORK CITY TR. AUTH. 182 A.D.3d 509 April 30, 2020

The plaintiff was cleaning windows about 15-17 feet from the ground on a non-defective ladder that was being held steady at the bottom by another worker when a ceiling tile unexpectedly fell striking the ladder causing it and the plaintiff to fall. The plaintiff’s motion for summary judgment on Labor Law § 240(1) was denied by the court which found issues of fact as to whether the ceiling tile was an intervening superseding cause of the accident. The court noted the accident seemed to be caused by an unforeseeable external force that was unrelated to the work being performed.

PRACTICE NOTE: Not every accident, even if gravity related, will fall under the protection of § 240(1).

TOPICS:Elevation-related hazard, Safety devices, Protected activity

DIAZ V. RAVEH REALTY, LLC 182 A.D.3d 515 April 30, 2020

The court overturned the lower court’s decision and granted the plaintiff summary judgment on the Labor Law § 240(1) claim. The plaintiff was injured when he was hit by a plywood form that fell or was dropped by coworkers who were stripping plywood forms from the cured concrete-poured ceiling. The plaintiff had been instructed to clear the plywood debris from the floor in the area. The work being performed involved a load that required securing. The plaintiff was entitled to summary judgment on § 240(1) because his injury was a foreseeable consequence of the risk of performing the work without any safety device of the kind enumerated in the statute.

PRACTICE NOTE: A plaintiff establishes entitlement to summary judgment when his injury was a foreseeable consequence of the risk of performing the subject work without any safety device of the kind enumerated in the Labor Law statute. TOPICS:Contractual indemnification, Labor Law § 200, Means and methods

CACKETT V. GLADDEN PROPS., LLC 183 A.D.3d 419 May 7, 2020

The plaintiff was injured when a heavy metal door that had been stored in an inadequately lit room fell over on him. The court held that the electrical subcontractor was not entitled to summary judgment on the plaintiff’s common law negligence claim because issues of fact existed as to whether the electrical subcontractor, which was responsible for lighting the premises, caused or created the purportedly inadequate lighting of the room in which the metal door was stored or had actual or constructive notice of the inadequate lighting. It was also held that the trial court correctly denied the motion for summary judgment by the owners and general contractor on their contractual indemnification claims as premature because an issue of fact existed as to whether the owner’s or general contractor’s negligence was the sole proximate cause of the worker’s underlying claim.

PRACTICE NOTE: It is inappropriate to grant conditional summary judgment on an owner’s or general contractor’s contractual indemnification claim against a subcontractor where an issue of fact exists as to whether the owner’s or general contractor’s negligence was the sole proximate cause of the underlying claim.

TOPICS:Summary judgment, Labor Law § 240(1), Gravity-related risk, Sole proximate cause

ORELLANA V. MO-HAK ASSOC., LLC 183 A.D.3d 451 May 14, 2020

Summary judgment was denied to the plaintiff on Labor Law § 240(1), where his employer testified that the plaintiff was instructed to only paint areas he could reach and not use a ladder. The court found triable issues of fact as to whether the plaintiff’s duties were expressly limited to work that did not expose him to an elevation-related hazard within purview of the Labor Law.

PRACTICE NOTE: Where the plaintiff’s work duties do not expose him to the dangers that § 240(1) is designed to protect from, if the plaintiff goes beyond those duties, the court will be reluctant to apply the Labor Law.

TOPICS:Enumerated activity, Protected activity, Homeowner's exemption

PARRA V. CARDENAS 183 A.D.3d 462 May 14, 2020

The plaintiff was retained by his friend, the property owner, to perform work at his home. The plaintiff was working on the roof above the defendant’s residential garage when weakened plywood collapsed under him causing him to partially fall through the roof. The court examined two issues. First, the plaintiff claimed that the defendant directed him to go onto the roof to assist roofing contractors. In the contract, the defendant claimed that he paid the plaintiff only to clean up debris at ground level. The court found that the plaintiff was engaged in an activity that placed him within the special class protected by Labor Law § 240 (1). The court also found that the plaintiff was employed as part of a larger construction project and a member “of a team that undertook an enumerated activity.” The court next examined whether the homeowner exception applied even though the defendant failed to plead it as an affirmative defense. The court found the failure was not fatal to the defense since the plaintiff was not surprised by the defense and had an opportunity to oppose it. However, both the plaintiff and defendant’s motions were denied since there were conflicting issues between the defendant’s affidavit and testimony.

PRACTICE NOTE: Regardless of the tasks the plaintiff was hired to perform, if he is performing enumerated work at the time of accident, Labor Law protections apply.

TOPICS:Labor Law § 200, Industrial code regulations, Sole proximate cause, Contractual indemnification

LANGER V. MTA CAPITAL CONSTR. CO. 184 A.D.3d 401 June 4, 2020

The plaintiff was injured in an area exposed to the elements that was improperly covered by the defendants with non-water proof planking, which resulted in an accumulation of water. When the plaintiff began his drilling operation, oily water poured on top of him, causing him to lose his balance and fall. The plaintiff, thereafter, brought an action based upon violations of Labor Law §§ 200 and 241(6). The court granted summary judgment as to § 200 finding that the plaintiff’s accident occurred due to a defective condition on the premises that was created by one of the defendants. The court denied summary judgment as to § 241(6). Although, the plaintiff’s claim was based on a violation of Industrial Code §§ 23-1.8(a) and (c)(3) the court held the violations were not a proximate cause of the plaintiff’s injury because the plaintiff’s injury was not the result of either improper eyewear or clothing (which those sections require).

PRACTICE NOTE: Although § 200 usually takes a backseat to the other two more prominent Labor Law sections, summary judgment should still be a concern.

TOPICS:Labor Law § 240, Labor Law § 200, Gravity-related risk, Overhead protection

HEWITT V. 70TH ST., LLC 184 A.D.3d 451 June 11, 2020

The plaintiff, an employee of a subsubcontractor, was injured while he was at ground level holding an I-beam that was being hoisted, when another subcontractor dislodged a metal baluster from a third-floor balcony railing, which fell and struck the plaintiff in the head and face. The plaintiff was entitled to summary judgment on his Labor Law § 240(1) claim against the general contractor because there was no overhead protection provided. The general contractor’s testimony that the plaintiff was in an area of the worksite where he was not supposed to be at the time of his accident was, at most, comparative negligence, which is not a defense to § 240(1). The plaintiff was also entitled to summary judgment on his § 200 and common law negligence claims as to the subcontractor since there was no dispute that the subcontractor was responsible for dislodging the baluster and allowing it to fall and strike the plaintiff. There was a question of fact as to whether the general contractor actually exercised supervisory control over the worksite, so as to trigger liability under § 200. Thus, the general contractor was entitled to only conditional summary judgment on its contractual indemnification claim against the subcontractor, subject to a determination as to their respective degrees of negligence.

PRACTICE NOTE: A plaintiff’s comparative fault of standing in an area of the worksite, where he was not supposed to be at the time of his accident, is not a viable defense to § 240(1).