Second Department

TOPICS:Labor Law § 241(6), Substantial factor

TORRES V. CITY OF NEW YORK 179 A.D.3d 732 January 8, 2020

The plaintiff was injured inside a steel trench box located approximately 10 feet below grade level. An excavator operator lowered a bucket into the steel trench box and crushed the plaintiff’s hand against the inside of the steel trench box. The plaintiff alleged violations of Labor Law § 241(6), specifically, a violation of Industrial code 12 NYCRR § 23-4.2(k), which prescribes that persons shall not be permitted to work in any area where they may be struck by any excavation equipment. The court found that the lower court improperly instructed the jury on the concept of comparative fault and the meaning of the term “substantial factor” requiring a new trial.

PRACTICE NOTE: For an Industrial Code violation to apply to the defendants under § 241(6), the violation must have been a substantial factor in causing the injury.

TOPICS:Labor Law § 200, Labor Law § 240(1), Labor Law § 241(6), Homeowner's exemption, Supervision

CAMPANELLO V. CINQUEMANI 179 A.D.3d 763 January 15, 2020

The plaintiff was injured while removing trees from the backyard of defendant’s property: a single-family dwelling. The defendant/ homeowner’s cousin was operating an excavator to move a downed tree that was situated on top of the tree the plaintiff was cutting. As the plaintiff was using a chainsaw to cut the branches from the downed tree, the excavator moved the top tree causing a branch to snap back and strike the plaintiff. The court affirmed the lower court’s granting of the defendant’s motion for summary judgment dismissing Labor Law §§ 240(1) and 241(6) causes of action pursuant to the homeowner’s exception. The court noted that a homeowner visiting the worksite, providing plans for the area to be worked on, making general decisions, and reviewing the progress of the work ae expected of an ordinary homeowner and do not qualify as “directing or controlling the work.” The court further held that the homeowner did not have liability under § 200 or common law negligence because the evidence showed that the homeowner did not have notice or create the alleged condition. PRACTICE NOTE: Owners of one- and twofamily dwellings are exempt from Labor Law violations when they contract for, but do not direct or control the work. Owners will also escape common law negligence liability under § 200 if the owner did not have actual or constructive notice of the dangerous condition and did not create the dangerous condition.

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

CHAPA V. BAYLES PROPS., INC. 179 A.D.3d 886 January 22, 2020

The plaintiff was injured when an extension ladder that he was standing on slid thereby causing him to fall. The ladder provided to the plaintiff lacked the rubber feet used to prevent slipping. The plaintiff alleged violations of Labor Law § 240(1) and was awarded summary judgment against the defendant upon a finding that the defendant/ owner provided defective equipment, which was a substantial factor in causing the plaintiff’s injury. The defendants failed to show that the plaintiff’s conduct in leaning the ladder against the wall was the sole proximate cause of the accident and thus were barred from using the recalcitrant worker defense.

PRACTICE NOTE: For a defendant to establish a recalcitrant worker defense as a complete bar to the plaintiff’s § 240(1) claim, the defendant must establish that the plaintiff’s conduct was the sole proximate cause of the accident.

TOPICS:Labor Law § 241(6)

MATUTE V. TOWN OF HEMPSTEAD 179 A.D.3d 1047 January 29, 2020

The plaintiff was retained to work on a new construction project and was injured using an electrical circular saw to cut wood. The defendants moved to dismiss the plaintiff’s Labor Law § 241(6) claim. The court found that the defendants did not establish their entitlement to dismissal and that there were issues of fact as to whether the plaintiff was the sole proximate cause of his accident thereby precluding defendants from a successful motion to dismiss the § 241(6) claim. PRACTICE NOTE: When the plaintiff’s comparative negligence is at question dismissal based upon sole proximate cause cannot be granted.

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

VON HEGEL V. BRIXMORE SUNSHINE SQ., LLC 180 A.D.3d 727 February 5, 2020

The plaintiff was assigned to perform repair work at a restaurant and was injured when the feet of a ladder he was working on slipped causing him to fall to the ground. The plaintiff alleged violations of Labor Law § 240(1) and the defendants moved for summary judgment, which was denied. The court found that the evidence showed that the accident occurred when the feet of the subject ladder, supplied by the owner and lessee, slipped from the wall. The court further noted that there was no evidence that the appropriate safety devices were “readily available” to the plaintiff within the meaning of § 240(1).

PRACTICE NOTE: Liability will be imposed on owners and general contractors when the evidence shows the ladder was inadequately secured and that the failure to secure the ladder was a substantial factor in causing the plaintiff’s injuries regardless of the plaintiff’s own negligence.

TOPICS:Labor Law § 200, Labor Law § 241(6), Industrial code regulations, Means and methods

BOODY V. EL SOL CONTR. & CONSTR. CORP. 180 A.D.3d 863 February 19, 2020

The plaintiff was injured while attempting to cross between two barges at a construction site, when a mooring line from one of the barges caught his leg and pinned it to a pillar. The plaintiff thereafter brought an action alleging violations of Labor Law §§ 200 and 241(6). The court found that the § 200 claim arose out of an alleged defect or danger due to a subcontractor’s methods or materials. However, the general contractor did not bear any responsibility for the manner in which the work related to the plaintiff’s accident was performed, therefore it did not have the supervisory control over the operation required to establish liability under the statute. The court therefore granted summary judgment as to § 200. The court also granted

summary judgment to the general contractor as to the plaintiff’s § 241(6) claim, which was based solely upon an alleged violation of 12 NYCRR § 23-1.7(e)(1). The court found that this section of the Industrial Code did not apply to the facts of the case.

PRACTICE NOTE: § 12 NYCRR 23-1.7(e)(1) states that “[a]ll passageways shall be kept free from accumulations of dirt and debris and from any other obstructions of conditions which could cause tripping. Since the plaintiff was not using a passageway this section did not apply.

TOPICS:Homeowner's exemption, Notice of condition, Authority or control over work

ALEXANDRIDIS V. VAN GOGH CONTR. CO. 180 A.D.3d 969 February 26, 2020

The plaintiff was injured when he fell while working from a ladder in the individual defendants’ single-family residence. The two defendant homeowners were each 50 percent owners of the defendant contracting company for whom the plaintiff had previously worked for as a subcontractor. Prior to starting the work, the plaintiff allegedly had a conversation with one of the defendant homeowners, saying that he would do the work on the home for free because of the amount of subcontracting work the defendant corporations had given him in the past. One of the defendant homeowners used a corporate credit card to purchase supplies for the work the plaintiff was to perform at the residence. After his accident, the plaintiff brought claims of Labor Law §§ 200, 240(1), and 241(6) against the homeowners as well as the contracting companies. The court granted the defendant homeowners summary judgment dismissing the §§ 240(1) and 241(6) violations due to the homeowner’s exemption. In dismissing these claims, the court found that any instructions the defendant homeowners gave to the plaintiff were aesthetic in nature or related to general supervision. Therefore, they did not constitute direction or control sufficient to defeat the exemption. As to the § 200 claim, the court found that the plaintiff’s accident occurred due to a dangerous condition that existed at the residence. The court found that the defendant homeowners failed to establish that the condition was latent and not discoverable upon a reasonable investigation. The court denied summary judgment to the corporate defendant as to all three Labor Law claims. For the §§ 240(1) and 241(6) claims, the court found that the defendant corporations failed to establish that they were not owners, contractors, or statutory agents with respect to the work where the plaintiff was injured. As to the § 200 claim, the court similarly found that there were triable issues of fact as to whether the defendant corporations acted as contractors for the job and whether any constructive notice on behalf of the homeowner defendants could be attributed to the corporations due to the homeowners’ ownership in them.

PRACTICE NOTES: The court also denied the plaintiff’s motion for summary judgment as to his § 240(1) claim based upon issues of fact as to whether the defendant corporations were acting as contractors for the work where the plaintiff wears injured. There was conflicting deposition testimony as to whether one of the defendant homeowners was acting in his individual capacity when dealing with the plaintiff or as an owner of the corporation. There was also conflicting testimony as to whether the plaintiff volunteered to do the work or whether he would actually be paid by the defendant corporations.

TOPICS:Labor Law § 240(1), Gravity-related risk, Proper safety devices

XIAOEN XIE V. PARK PLACE ESTATE, LLC 181 A.D.3d 627 March 4, 2020

The plaintiff fell approximately 10 feet into an open basement of a building when a corrugated steel decking panel (Q-decking) covering the opening gave way. The plaintiff alleged Labor Law § 240(1) violations against the owner and general contractor. The court granted the plaintiff’s motion for summary judgment on the issue of liability on the cause of action alleging a violation of § 240(1).

PRACTICE NOTE: § 240(1) imposes a nondelegable duty upon owners and general contractors to provide safety devices to protect workers from elevated risks.

TOPICS:Homeowner's exemption, Control of work, Notice of condition

SALGADO V. RUBIN 183 A.D.3d 617 May 6, 2020 violations of Labor Law §§ 200, 240(1), and 241(6). The court found that because the defendant homeowner did not direct or control the plaintiff’s work, they were entitled to the protection of the homeowner’s exemption and dismissed the plaintiff’s §§ 240(1) and 241(6) claims. With respect to the plaintiff’s § 200 claim, the defendant was granted summary judgment because they presented evidence that they neither had the authority to control or supervise the work, nor created the defect or notice of its existence.

PRACTICE NOTES: The court noted that although the defendant requested that the plaintiff install insulation around the pipe at issue―as well as provide documentation of the work, take steps to protect the floors, and move some sentimental items from the work area before starting―this amounted to general supervision or aesthetic matters and did not rise to direction or control in the context of the homeowner’s exemption.

TOPICS:Labor Law § 241(6), Labor Law § 200, Tripping hazard, Industrial code regulations, Integral part of the work

MARTINEZ V. 281 BROADWAY HOLDINGS, LLC 183 A.D. 3d 712 May 13, 2020

The plaintiff was injured when his foot became entangled in electrical wires hanging from the ceiling at a jobsite. The plaintiff brought an action under Labor Law §§ 241(6) and 200. The court dismissed the plaintiff’s § 241(6) claim, based solely upon § 12 NYCRR 23-1.7(e)(2), finding that this section of the Industrial Code was inapplicable where the material over which the plaintiff tripped was integral to the work being performed. However, the court denied the defendants summary judgment as to the § 200 claim. The court held that because the plaintiff’s injury did not arise from the manner in which the work was performed―but rather from an allegedly dangerous condition at the worksite―liability may be imposed upon a subcontractor that had control over the worksite and either created the allegedly dangerous condition, or had actual or constructive notice of it.

PRACTICE NOTE: In dismissing the plaintiff’s § 241(6) claim, the court relied upon deposition testimony demonstrating that the electric wires at issue were an integral part of the construction rather than merely debris or accumulated construction material.

TOPICS:Contractual indemnification, Triggering language

MARTINEZ V. 281 BROADWAY HOLDINGS, LLC 183 A.D.3d 716 May 13, 2020

As noted above (this was a second appeal from the previous case), the plaintiff was injured when his right foot became entangled in electrical wires hanging from the ceiling. The owner of the building, 281 Broadway Holdings, LLC, had retained a general contractor who subcontracted S.J. Electric, Inc. to perform the electrical work at the new construction building. The plaintiff asserted violations of the Labor Law against the owner and the other defendants. Upon the plaintiff’s claims of Labor Law violations against the owner of the building, the owner moved for contractual indemnification against the electrical subcontractor. The court held that the owner was entitled to summary judgment for contractual indemnification against an electrical subcontractor because the relevant contract provided that the subcontractor would indemnify the owner against any claims arising out of the subcontractor’s work. The injured worker’s negligence claim in this case arose out of the work performed by the electrical subcontractor thereby entitling the owner to contractual indemnity.

PRACTICE NOTE: A party seeking contractual indemnification must prove itself free of negligence because to the extent its negligence contributed to the accident, it cannot be indemnified. The plaintiff’s claim must, therefore, arise out of the indemnifying party’s work.

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

ZHIGUE V. LEXINGTON LANDMARK PROPS., LLC 183 A.D.3d 854 May 20, 2020

The plaintiff sustained injuries when a portion of the decorative plaster ceiling above the area where the plaintiff was working fell. The fallen ceiling then caused the scaffold the plaintiff was working on to collapse and crush the plaintiff. The plaintiff moved for summary judgment on his Labor Law §§ 240(1) and 241(6) causes of action. The court found triable issues of fact existed with respect to violations of §§ 200, 240(1), and 241(6) thereby denying the plaintiff’s motion. The court also noted the lower court should not have searched the record and granted summary judgment to the plaintiff on an issue that was not the subject of the motion before the court (i.e, res ipsa loquitor). The court found that the plaintiff failed to demonstrate that the plaster ceiling was “structural” and therefore within the control of the owner of the building pursuant to the terms of the lease.

PRACTICE NOTE: When § 240(1) causes of action are pled the plaintiff must establish that the defendants failed to provide adequate safety devices. If issues of fact are present, the plaintiff’s motion for summary judgment will be denied.

TOPICS:Labor Law § 200, Notice of condition

MODUGNO V. BOVIS LEND LEASE INTERIORS, INC. 184 A.D.3d 820 June 24, 2020

The plaintiff was injured when he fell while stripping forms from a concrete slab in a deep hole. The plaintiff alleged that he slipped due to a large amount of mud that accumulated on the ground in the hole. The defendant moved for summary judgment as to the plaintiff’s Labor Law § 200. The court found that the plaintiff’s accident resulted from a dangerous premises condition, not from the method and manner of the work. The defendant failed to demonstrate a lack of actual or constructive notice of the muddy condition that caused the plaintiff’s accident. The court therefore denied summary judgment.

PRACTICE NOTES: The lower court originally denied summary judgment on the grounds that the deposition transcripts submitted in support of the motion were unsigned and therefore inadmissible. The appellate court decided to hear the motion on its merits, but nevertheless denied summary judgment.