Labor Law Update - Spring 2020 by goldbergsegalla

SPRING 2020

EDITOR’S NOTE

The Impact of COVID-19 on Labor Law A LSO I N T H IS ISSU E: ▶ Reconciling varying versions of events ▶ Involvement as well as title makes owner ▶ No need to prove safety device defective if insufficient ▶ Witness credibility weighed in furnishing of safety devices Attorney Advertising

Goldberg Segalla Labor Law Update Spring 2020 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

In This Issue First Department | 4 Second Department | 8 Fourth Department | 14 Topics Index | 16

general, please contact Theodore W. Ucinski III or Kelly A. McGee

CO - EDITORS Theodore W. Ucinski III Kelly A. McGee ASSISTANT EDITORS

CONTRIBUTORS

Jamie K. McAleavey 516.281.9865 jmcaleavey@goldbergsegalla.com

Jeffrey S. Matty 646.292.8748 jmatty@goldbergsegalla.com

Stefan A. Borovina 516.281.9836 sborovina@goldbergsegalla.com

Amanda E. McKinlay 646.292.8769 amckinlay@goldbergsegalla.com

Samantha Catone 716.844.3488 scatone@goldbergsegalla.com

Anthony S. De Ingeniis 516.267.5913 adeingeniis@goldbergsegalla.com

Derek M. Zisser 516.281.9834 dzisser@goldbergsegalla.com

James F. Faucher II 518.935.4247 jfaucher@goldbergsegalla.com

Sarah M. Washington 716.931.8910 swashington@goldbergsegalla.com

EDITOR’S NOTE We hope this edition of Labor Law Update finds you and your loved ones healthy and safe. Goldberg Segalla remains in full operation, continuing to advise our clients around the clock. Put succinctly, the COVID-19 pandemic has permeated every aspect of our lives—New York’s Labor Law and construction practice are no exception. Like most industries, construction in New York as a whole has been deeply affected by the current pandemic. All construction has ceased except for “essential” construction on projects such as hospitals, homeless shelters, and infrastructure. As a result, numerous construction projects have been suspended or delayed. We expect the frequency of accidents leading to Labor Law claims will diminish over the next few months. Further, the ability of the plaintiffs’ bar to initiate suit has been curtailed. At this time, the court is not accepting filings, and the statute of limitations on all personal injury actions has been tolled into May 2020. We anticipate that there will be an influx of new Labor Law actions once the courts re-open and accept filings.

THEODORE W. UCINSKI III 516.281.9860 tucinski@goldbergsegalla.com

We anticipate numerous claims to be filed arising from exposure to COVID-19. As it pertains to the Labor Law, COVID-19 claims will likely be brought under sections 241(6) and 200. To bring a claim under section 241(6), a plaintiff must plead and prove a violation of the New York State Industrial Code. It further requires the Industrial Code violation be the proximate cause of the injuries plaintiff sustained in a construction–related accident. 23 NYCRR 1.7(G), entitled “Aircontaminated or Oxygen Deficient Work Areas,” may support such a claim effectively grafting the Labor Law onto the COVID-19 landscape. This section of the Industrial Code requires confined areas to be sufficiently ventilated so as to prevent workers from inhaling dangerous air contaminants. We note, however, that a virus is not a typical air contaminant expected at a job site and therefore it will be left up to the New York Courts to further define this issue. One other potentially applicable provision is 23 NYCRR 1.8 (b), which requires employers to provide respirators appropriate for the task being performed. Workers who contract COVID-19 and were not provided with N-95 masks in the weeks leading up to a job shut-down or those working on essential construction during the pandemic may try to claim violations of this section as well. Under Labor Law 200, a plaintiff may proceed under one of two theories. Where an accident arises from a defective or dangerous condition on the project, the plaintiff must show the owner or general contractor created the condition or had sufficient notice of the condition to impute liability. Where the accident arises out of the means and methods of the work, a plaintiff must show the defendants directed, controlled, or supervised the work with enough specificity to impute liability. It seems, at least at this juncture, that plaintiffs may be able to proceed under either theory when it comes to COVID-19 exposure. Where claims arise from failure to provide approved masks or for close-proximity work conditions a plaintiff may argue the defendants created a dangerous condition or the condition arose out of the manner in which the work was conducted. Although the future is uncertain and the “new normal” in the construction industry may be very different from what we have experienced in the past, you can rest assured that Goldberg Segalla will remain steadfastly at the forefront of any changes to meet all of your continued and emerging legal needs. Please note that we offer COVID-19-related publications, fact sheets and other educational resources, webinars, and blogs, along with the services of our COVID-19 Rapid Response Task Force. For more information, please refer to page 19 of this document or contact us directly. As always, we hope you find this edition of Labor Law Update to be a helpful and practical resource. If you any questions about the cases or topics discussed or have any feedback on how we can make Labor Law Update more useful, please do not hesitate to contact us.

Theodore W. Ucinski III

Kelly A. McGee

KELLY A. McGEE 646.292.8794 kmcgee@goldbergsegalla.com

FIRST DEPARTMENT

TOPICS: Labor Law § 240(1), Burden of Proof, Sole Proximate Cause, Comparative Negligence

TOPICS: Recalcitrant Worker, Labor Law § 240, Sole Proximate Cause

TOPICS: Labor Law § 240(1), Fall From Ladder, GravityRelated Risk

CAMACHO V. ILONCLAD ARTISTIC INC.

LUNA V. 4300 CRESCENT LLC

COOMBES V. SHAWMUT DESIGN & CONSTRUCTION

174 A.D.3D 426 (JULY 9, 2019)

174 A.D.3D 881 (JULY 31, 2019)

The plaintiff was injured following a fall from a scaffold that lacked guard rails. When the scaffold tipped, the plaintiff fell to the ground. The court found this undisputed evidence established a prima facie violation of Labor Law § 240(1). The court ruled that a plaintiff’s alleged failure to use the locking wheel device and his movement of the scaffold while standing on it is, at most, comparative negligence, which is not a defense to a § 240(1). The plaintiff’s fall from the scaffold, without guardrails or other protective devices, was a proximate cause of the accident.

The plaintiff was injured while attempting to move a mortar buggy, on his own, down a ramp during construction of a new building and claimed a violation of Labor Law § 240(1). The plaintiff proceeded to trial on this cause of action and the jury found the statute was not violated, and his conduct was the sole proximate cause of his injury. On appeal, citing to Runner, the court found the jury had a valid line of reasoning in concluding that the plaintiff caused his own accident by moving the mortar buggy on his own.

PRACTICE NOTE: Evidence of a collapsing safety

PRACTICE NOTE: Not every injury from an

device will result in a Labor Law § 240(1) finding. To invoke a claim alleging a violation of the scaffolding law, an appropriate safety device must be lacking or defective, thereby exposing the plaintiffs to elevation-related risks, and must have proximately caused the plaintiff’s injuries. A plaintiff’s comparative fault in use of the safety device is not a viable defense.

TOPICS: Labor Law § 240(1), Fall From Ladder, GravityRelated Risk, Burden of Proof

LOZADA V. ST. PATRICK’S R C CHURCH 174 A.D.3D 879 (JULY 31, 2019)

The plaintiff fell from a ladder while performing work in a church, sustained injuries, and filed suit under Labor Law § 240(1). He testified that the ladder shifted, causing him to lose his footing, and that nobody was holding the ladder at the time of the accident. Conversely, his co-worker testified that he was standing at the bottom of the ladder, holding it, when he felt the ladder jolt. The court found that whether or not the ladder was stabilized at the time of the accident presented a triable issue of fact. PRACTICE NOTE: In cases where more than one

version of events is provided, the court will not grant the plaintiff summary judgment if both versions do not fall within the ambit of Labor Law § 240(1).

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

TOPICS: Recalcitrant Worker, Labor Law § 240, Labor Law § 200, Sole Proximate Cause

BIACA-NETO V. BOSTON ROAD II HOUSING DEVELOPMENT FUND CORP. 176 A.D.3D 1 (AUGUST 13, 2019)

175 A.D.3D 1140 (SEPTEMBER 10, 2019)

The plaintiff was injured when he fell from an elevated concrete platform on his worksite that did not have safety rails or stairs, and which he was repeatedly required to traverse to access an electrical panel to do his work. According to the plaintiff, he was not actually working at the time of the accident; instead, he was walking over the platform to get to the room he was working. The plaintiff further testified that he had gone up onto the platform and stepped down off it at least eight to 10 times prior to his accident without any issues, but at the time of the incident, he fell after slipping on a stud. The court found that this accident was within the ambit of Labor Law § 240(1) because the worker’s injuries were the direct consequence of a failure to provide adequate protection, such as a guardrail or stairs, to prevent the elevation related risk. PRACTICE NOTE: The plaintiff must be engaged

in an enumerated activity to recover under the Labor Law, although liability may attach for work antecedent to an enumerated activity if a sufficient nexus can be shown.

The plaintiff was injured when he climbed onto a scaffold frame to enter a building through a window cutout and he fell backwards on to the ground. The court addressed the boundaries of a defendant’s responsibilities under Labor Law § 240(1). The court held that the plaintiff’s own actions were the sole proximate cause of his injuries, even if there had been oil on which the plaintiff allegedly slipped and fell, where the evidence established that the plaintiff made the decision to climb onto a beam seven feet above the platform to enter an interior location of the building where he was not working by a means he conceded he knew was inappropriate, even though the obvious, safe, and compliant means of egress was the scaffold’s stairway.

TOPICS: Fall From Ladder, Common Law Indemnity

PRACTICE NOTE: To invoke a claim alleging a

indemnity, the party seeking to be indemnified must show they are being held liable due to the active negligence of another and that they are free of negligence.

violation of the scaffolding law, an appropriate safety device must be lacking or defective, thereby exposing workers to elevation-related risks, and must have proximately caused the worker’s injuries. The scaffolding law imposes no obligation on owners and general contractors to provide additional precautions to safely facilitate prohibited conduct.

RIVERA V. THE GARDEN OF PRAYER CHURCH 176 A.D. 3D 425 (OCTOBER 1, 2019)

The church was found liable under Labor Law § 240(1) to a subcontractor who fell from a ladder that wobbled, flipped, and flopped causing him to fall. The plaintiff’s testimony set forth a prima facie violation of Labor Law § 240(1). The court also found that the contractor was required to indemnify the church under common law indemnity for bringing about the injury suffered by the subcontractor when he fell from the contractor’s ladder. PRACTICE NOTE: When seeking common law

FIRST DEPARTMENT

TOPICS: Labor Law § 240(1), Elevated Work Platform

SOUTH V. METROPOLITAN TRANSPORTATION AUTHORITY 176 A.D.2D 447 (OCTOBER 8, 2019)

The plaintiffs were awarded summary judgment on Labor Law § 240(1). The court found that the defendant was liable under the Scaffold Law for injuries sustained to the plaintiffs after they fell to the ground when a lift truck that they were using as an elevated work platform moved when it was struck by a passing bus. PRACTICE NOTE: The failure of a safety device,

even when an intervening cause is involved may yield a violation of Labor Law § 240(1).

TOPICS: Crane Collapse, Causation

DEGIDIO V. THE CITY OF NEW YORK 176 A.D.2D 452 (OCTOBER 8, 2019)

Even though the plaintiff was unable to describe how the accident occurred; whether he was injured by the collapsing crane or while running from the collapsing crane. The court found that a plaintiff does not need to be directly injured by a portion of a crane for the Scaffold Law to apply. Injuries that occur while trying to avoid being struck during a hoisting accident may fall under the purview of Labor Law § 240(1). Further, the court stated that the collapse of a crane constitutes a prima facie violation of Labor Law § 240(1). PRACTICE NOTE: It is black letter law that a

crane collapse and the injuries proximately caused by the collapse constitute a violation of Labor Law § 240(1).

TOPICS: Covered Work, Enumerated Activity

TOPOLI V. 77 BLEECKER STREET CORP. 176 A.D. 3D 553 (OCTOBER 22, 2019)

The plaintiff’s Labor Law § § 240(1) and 241(6) claims were dismissed because installing window shades does not constitute “altering” within the meaning of the Labor Law. Further, the plaintiff’s work was found to be separate and distinct from the larger existing construction project, because apartment owners retained the plaintiff separately to install window shades, which was not within the scope of work in the construction contract.

PRACTICE NOTE: When evaluating whether an

accident falls within the purview of Labor Law § 240(1), a practitioner must always examine whether the plaintiff was performing an enumerated activity.

TOPICS: Hoisting, Elevation

ALI V. SLOAN- KETTERING INST. FOR CANCER 176 A.D. 3D 561 (OCTOBER 22, 2019)

The plaintiff was injured when over 300 pounds of air conditioning equipment fell on his leg as he unloaded it from a truck. The court found a violation of Labor Law § 240(1) because of the weight of the equipment; the amount of force it was able to generate, even falling a relatively short distance; and the plaintiff’s injury was caused by failure to provide protection against risk arising from a significant elevation differential. PRACTICE NOTE: In this matter, the court relied

upon Runner v. N.Y. Stock Exchange, Inc., (2009) to reach its conclusion.

TOPICS: Enumerated Activity, Fall From Ladder

TERC V. 535 COSTER REALTY, INC. 176 A.D3D 562 (OCTOBER 22, 2019)

The plaintiff testified he was hired to dismantle a 25-foot dust collecting tank located 14 feet above the defendant’s roof top. To access the tank, the plaintiff utilized a ladder. The plaintiff’s co-worker testified that the plaintiff was hired to perform non-statutorily protected cleaning or maintenance. The court found issues of fact as to whether the plaintiff was involved in an enumerated activity under Labor Law § 240(1). PRACTICE NOTE: The courts will closely examine

whether a plaintiff was employed in an enumerated activity.

TOPICS: Labor Law § 241(6), Enumerated Activity

RODRIGUEZ V. ANTILLANA & METRO SUPERMARKET CORP. 176 A.D.3D 597 (OCTOBER 29, 2019)

The plaintiff worked at the premises during the buildout to install three refrigeration system condensers, which weighed about 3000 pounds. Subsequently, after the project was completed, the plaintiff was called back to the premises to install an additional condenser weighing 200 pounds. The plaintiff was injured while installing this condenser and sued the property owner and tenant. The court found an issue of fact as to whether the installation of the condenser constituted an “alteration” of the premises which would fall under the ambit of “construction” work under Labor Law § 241(6). PRACTICE NOTE: The courts will closely examine

whether the plaintiff was participating in “covered work.”

TOPICS: Notice of Condition, Comparative Fault, Tripping Hazards, Labor Law § 241(6), Labor Law § 240(1)

GONZALEZ V. G. FAZIO CONSTR. CO., INC. 176 A.D.3D 610 (OCTOBER 29, 2019)

The plaintiff, an employee of a foundation contractor, was injured while working on a construction site when he tripped while pushing a wheelbarrow. The Appellate Court dismissed the plaintiff’s Labor Law § 240(1) claim because it was inapplicable to a trip and fall. The court further dismissed the portion of the plaintiff’s Labor Law § 241(6) claim premised on 12 NYCRR 23-1.7(e)(1) because the debris the plaintiff tripped on was located in an open area. However, the court found that 12 NYCRR 23-1.7(e)(2) was applicable because the open area around the work was considered a worksite. PRACTICE NOTE: Debris in an open area that

creates a tripping hazard is a violation of 12 NYCRR 23-1.7(e)(2), which triggers Labor Law § 241(6) liability.

SPRING 2020 | 5

FIRST DEPARTMENT

TOPICS: Open Excavation, Scope of Work, Labor Law § 241(6), Labor Law § 240(1)

DEMETRIO V. CLUNE CONSTR. CO., L.P. 176 A.D.3D 621 (OCTOBER 29, 2019)

The plaintiff was working on a construction site when he exited a building and slipped on mud causing him to fall through a wood and orange netting fence into a trench. Even though the court found the testimony differed between witnesses, the trench was at least 3-feet deep and therefore qualified as a significant elevation under Labor Law § 240(1). The court further rejected the argument that the initial slip on mud rendered the plaintiff’s Labor Law claims inapplicable. The court further affirmed the award of partial liability pursuant to Labor Law § 241(6). The defendants were unable to prove that at the time of the incident additional safety measures were impracticable due to excavation.

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

ENCARNACION V. 3361 THIRD AVE. HOUS. DEV. FUND CORP. 176 A.D.3D 627 (OCTOBER 29, 2019)

The plaintiff was injured while disassembling a concrete form on a construction site. The formwork consisted of panels held together by connector pins. Each panel weighted approximately 1,500 pounds. When the plaintiff removed the final pin, the panel fell over on him injuring him. The court found that even though the plaintiff and the panel were on the same level, the falling action of the panel presented a substantial gravityrelated risk under Labor Law § 240(1). PRACTICE NOTE: Labor Law § 240(1) applies to

objects on the same level of the plaintiff when they tip over causing a gravity-related danger.

PRACTICE NOTE: Open excavations are subject to

Labor Law § 240(1) protections. Even if a worker is not generally supposed to be in an area, liability could arise from failure to provide safety devices near an open excavation.

TOPICS: Labor Law § 240(1), Contradicting Testimony

GONCALVES V. NEW 56TH AND PARK (N.Y.) OWNER, LLC 177 A.D.3D 468 (NOVEMBER 14, 2019)

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

ORTEGA V. TRINITY HUDSON HOLDING LLC 176 A.D.3D 625 (OCTOBER 29, 2019)

The plaintiff was injured when his hand was crushed while securing a scaffold with a tieback. The court found that the weight of the scaffold shifting onto the plaintiff’s hand was a gravity related incident and therefore gave rise to Labor Law § 240(1) liability. Further, the court held that weights used to counterbalance the scaffold were not safety devices for the purposes of this incident. The court rejected the defendant’s claims that the plaintiff was the sole proximate cause of the accident as it was based upon speculative expert and foreman testimony that the tieback had been over tightened. The court further found that even if the tieback had been overtightened it would only give rise to comparative fault. The court dismissed the plaintiff’s Labor Law § 241(6) claim. PRACTICE NOTE: Labor Law § 240(1) applies to

any gravity-related hazard. Labor Law § 241(6) liability does not attached where the plaintiff is not able to prove that the Industrial Code provision relied on is sufficiently specific.

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The plaintiff was struck by a chain and/or hoist from above his head causing injuries. Even though there was a discrepancy between the plaintiff’s initial affidavit, and his deposition testimony as to what part of the system struck him, the court found it did not matter whether it was the chain or the hoist because both are a violation of Labor Law § 240(1). PRACTICE NOTE: Contradicting testimony should

be taken as a whole, and not as minutia. Here, the court did not care about the discrepancy between the chain or the hoist as the injury because the plaintiff was still struck from above.

TOPICS: Labor Law § 241(6), Tripping Hazards, Ambiguous Contract Language

CASTILLO V. BIG APPLE HYUNDAI 177 A.D.3D 473 (NOVEMBER 14, 2019)

The plaintiff was injured when he was caused to trip and fall over a safe while performing demolition work. The court denied the plaintiff’s motion for summary judgment on Labor Law § 241(6) because the safe was integral to his work. Further, the defendant’s contractual indemnity motion was denied due to ambiguities in the AIA contract at issue.

PRACTICE NOTE: Industrial Code § 23–1.7(e)(2)

cannot be used to claim that a tripping hazard breached Labor Law § 241(6) where the hazard was an integral part of the plaintiff’s work.

TOPICS: Labor Law § 240(1), Early Summary Judgment, Recalcitrant Worker

SINGH V. NEW YORK CITY HOUSING AUTHORITY 177 A.D.3D 475 (NOVEMBER 14, 2019)

The plaintiff was caused to fall off a sidewalk bridge after being struck by a pile of heavy wooden planks which shifted and struck him on the legs. The plaintiff presented deposition testimony and photographic evidence in support of their motion for summary judgment. The court found that the plaintiff’s testimony was sufficient for the purpose of § 240(1) even in the face of a recalcitrant worker defense. The court found that the defendants had ample time to conduct diligent discovery to be able to present a defense, but did not. PRACTICE NOTE: The plaintiff’s submission of

evidence can be sufficient to grant a motion for summary judgment in § 240(1) matters. Beware the “premature motion” opposition and “discovery might yield” arguments for in opposition to the plaintiff’s motion. Obtain your salient evidence in support of defenses as early as possible.

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

SANCHEZ V. BET ELI CO. DELAWARE LLC 177 A.D.3D 478 (NOVEMBER 14, 2019)

The plaintiff fell from a scaffold which did not have any railings and no other safety device was provided. The court affirmed the award of partial summary judgment pursuant to Labor Law § 240(1), holding that the plaintiff, in such circumstances, was not required to show that the scaffold was defective. PRACTICE NOTE: Scaffolding, which does not

have a railing, is insufficient to meet the safety device requirement for Labor Law § 240(1). The plaintiff therefore does not need to show that a safety device is defective when it is insufficient when used in isolation.

FIRST DEPARTMENT

TOPICS: Application of Labor Law, Choice of Law

WORTHAM V. PORT AUTH. OF NEW YORK AND NEW JERSEY

TOPICS: Labor Law § 240(1), Labor Law § 241(6), Labor Law § 200, Supervision, Control, and Authority

COLEMAN V. URS CORPORATION

177 A.D.3D 481 (NOVEMBER 14, 2019)

177 A.D.3D 529 (NOVEMBER 21, 2019)

The plaintiff was injured when he fell while working at The George Washington Bridge Bus Station in Manhattan, which is owned by the Port Authority. The Port Authority moved to dismiss the claim alleging that it was not subject to New York Labor Law. The court denied the defendant’s motion to dismiss the plaintiff’s Labor Law § § 240(1) and 241(6) claims on the grounds that the Port Authority was not subject to New York Labor Law as a bi-state entity.

The plaintiff was struck by a hose and disconnected chipping gun causing him to fall 10-15 feet down an incline. The plaintiff contended that the defendants in the matter were agents of the contractor or owner sufficient to attach labor law liability. The court found that most of the URS defendants were not present on the jobsite at the time of accident. The remaining defendant, URS New York, did not have the authority to supervise and control the injury producing work related to the chipping gun and was not a statutory agent.

PRACTICE NOTE: Port Authority is subject to

New York Labor Law when the accident occurs in New York.

TOPICS: Labor Law § 241(6), Guarding/Safety Features

WOLODIN V. LEHR CONSTRUCTION CORP. 177 A.D.3D 496 (NOVEMBER 19, 2019)

The plaintiff fell from an A-frame ladder when he received an electric shock after cutting into a wire that he believed―based on his testing―was not carrying electricity. The plaintiff was granted summary judgment based on § 241(6). The defendants contended that the “or” provision of Industrial Code Section 23-1.13(b)(4) indicated 1) that either the current must have been shut off; or 2) that guarding against a shock or current with insulation or other means rendered a choice to safeguard the plaintiff. The court affirmed summary judgment holding that insulation was not relevant in this matter as the plaintiff was forced to cut through the insulation to disconnect the electrical wiring. PRACTICE NOTE: Look at the big picture and

scope of work—standard or basic guarding may not be enough to safeguard a worker if the scope of work requires more. In this matter, the plaintiff had to cut through the wire to perform his work which exposed him to the electrical current; no amount of insulation would have protected him if the wire were still live.

PRACTICE NOTE: There must be sufficient

supervision and control to find that a party is a statutory agent of the owner under the Labor Law.

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

PIERRAKEAS V. 137 EAST 38TH STREET LLC 177 A.D.3D 574 (NOVEMBER 26, 2019)

The plaintiff fell and was injured either while he slipped off the rungs, or when the subject ladder tipped as he was descending, lost his balance, and was attempting to steady himself. The court held that the plaintiff did not need to show the ladder was defective, merely that he was not provided the proper safety device. The defendant failed to raise an issue of fact as to whether placement of the ladder was the sole proximate cause. PRACTICE NOTE: In absence of a sole-proximate-

cause argument, why the plaintiff fell is nonmaterial to summary judgment. Courts will find that the defendant failed to provide a safety device sufficient to prevent an injury if a defendant cannot point to a cause of the fall.

TOPICS: Labor Law § 200, Common Law Negligence

BORRERO V. ACC CONSTRUCTION CORP.

area of her fall. The only evidence presented was taken after the fall and after the floor had been patched with sealant. Under these circumstances, any perceived notice would have been based on pure speculation PRACTICE NOTE: Mere speculation

by the plaintiff on what they tripped on or over are not sufficient enough information to uphold summary judgment. If the plaintiff cannot identify a defect sufficiently, summary judgment should hold.

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

GARCIA V. SMJ 210 WEST 18, LLC 2019 N.Y. SLIP OP 08791 (DECEMBER 10, 2019)

The plaintiff was struck by a falling piece of DensGlass on the exterior of the building while he was dismantling a bridge. Workers were affirmatively working above the plaintiff and the exterior façade was not complete. The First Department reversed denial of the plaintiff’s motion for summary judgment based on the fact that the plaintiff was essentially struck by falling debris during ongoing construction of the façade, which is a classic gravity-related hazard. With respect to the plaintiff’s § 241(6) claims, the defendants’ motion should have been denied because there was a triable issue of fact as to whether the area where the accident occurred was, “normally exposed to falling material or objects,” requiring that the plaintiff be provided with suitable overhead protection. PRACTICE NOTE: Always look at the totality of

the situation while the falling DensGlass was a classic gravity-related hazard, an argument against summary judgment predicated on the type of work the plaintiff was doing (related to the dismantling of a bridge) and the potential dangers may not be effective if there are other issues at hand. Here, the falling object was not merely a defect in the exterior or an accidental break, but directly correlated to exterior work; any work on the exterior of the building could have produced either falling material or debris, which should have been guarded for.

2019 N.Y. SLIP OP 08633 (DECEMBER 3, 2019)

The plaintiff was injured during a gutrenovation job when she tripped and fell on what she believed was debris. The plaintiff could not describe the defect in any dimensional matter and testified that the photographs of the area did not depict the SPRING 2020 | 7

FIRST DEPARTMENT

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

BROWN V. 43-25 HUNTER, LLC 2019 N.Y. SLIP OP 08919 (DECEMBER 12, 2019)

The plaintiff allegedly slipped and fell from a wobbly wet ladder and brought Labor Law § § 240(1) and 241(6) claims against the defendants. In opposition, the defendants attempted to defeat summary judgment by submitting expert affidavits of two medical experts and a biomechanical engineer that contained conclusory, speculative statements that the plaintiff’s injuries were inconsistent with a fall to concrete from a height of approximately 20 feet. The plaintiff’s motion for summary judgment was affirmed as the defendants failed to raise a triable issue of fact as to whether the accident occurred in the manner described by the plaintiff. PRACTICE NOTE: The defendants attempted

to show that the plaintiff’s injuries were not consistent with a fall from 20 feet, but the court affirmed § 240(1) based on testimony that a defective ladder caused his accident.

TOPICS: Labor Law § 200, Contractual Indemnification

GILLIGAN V. CJS BUILDERS 2019 N.Y. SLIP OP 08791 (DECEMBER 19, 2019)

The plaintiff allegedly fell several feet from a scaffold while framing ceilings and installing sheet rock for employer “Complete”; CJS operated as the general contractor for the project. The plaintiff was supervised by a foreman for Complete. With respect to CJS and exclusively claims relating to Labor Law § 200, this matter centered on the means and methods of the plaintiff’s work, and not a dangerous or defective condition. Summary judgment was granted and affirmed to CJS as it did not exercise the requisite degree of control over the means and methods of the work in which plaintiff was engaged. As a result, CJS also established its entitlement to full contractual indemnification from Complete, pursuant to the express terms of an indemnification agreement. PRACTICE NOTE: When considering means and

methods cases, there is a requisite degree of control necessary to impose liability. Here, it was clear that the plaintiff was supervised and directed by a Complete foreman and that CJS merely hired the plaintiff’s employer to complete the work. In this case, the ability to supervise or control, but the complete 8 | Labor Law Update

lack of actual practice constituted general supervision and coordination, which was insufficient to trigger § 200.

TOPICS: Elevation-Related Hazard, Safety Equipment, Sole Proximate Cause, Manner & Method, Industrial Code Regulations

FERGUSON V. DURST PYRAMID, LLC TOPICS: Manner & Method, Industrial Code Regulations

2019 N.Y. SLIP OP 09388 (DECEMBER 26, 2019)

The plaintiff was injured when he tripped over a piece of plywood nailed to the floor of the construction site that was used to cover a hole. The court affirmed the granting of the defendants’ motion for summary judgment dismissing the Labor Law § § 241(6) and 200 claims. The court held that the area where the plaintiff fell was an open area and not a “passageway” within the meaning of Industrial Code 12 NYCRR § 23-1.7(e)(1). As for the Labor Law § 200 claim, the defendants neither controlled nor directed the plaintiff’s work or had notice of the alleged defective condition.

The plaintiff fell while trying to access an elevated work platform by stepping up onto an inverted bucket. The court granted summary judgment to the plaintiff on Labor Law § § 240(1) and 241(6) claims. The court held that the protections of § 240(1) applied to the plaintiff’s fall from the bucket. The defendants failed to rebut an affidavit stating that stairs or other access points to the work platform were restricted or blocked by materials, so the plaintiff’s attempted use of the bucket cannot be the sole proximate cause of the accident. The plaintiff was entitled to summary judgment under § 241(6) because no stairways, ramps, or runways were available to access the platform in violation of Industrial Code 12 NYCRR § 23-1.7(f).

PRACTICE NOTE: In a Labor Law § 241(6)

PRACTICE NOTE: The failure to provide

TOPICS: Protected Activity, Industrial Code Violations, Enumerated Activity

TOPICS: Manner & Method, Authority or Control Over Work, Protected Activity

EMERY V. STEINWAY, INC.

RAMIREZ V. A.W.&S. CONSTRUCTION CO., INC.

The plaintiff hit his head on a steel beam while installing cabling above a drop ceiling and alleged he was not provided a hard hat and the premises had inadequate lighting. The court held that “running cables” has been considered to be a “significant physical change” to constitute alteration and not “routine” maintenance so there was a question of fact as to whether the plaintiff’s work constituted an alteration within the meaning of the Labor Law § 241(6). The court held that the Industrial Codes, 12 NYCRR 23-1.8(c)(1) and 12 NYCRR 23-1.30 were applicable to the facts of the case and have been found to be sufficiently specific.

The plaintiff was injured while performing demolition when a coworker prematurely tore down the neighboring wall to where the plaintiff was working and he was struck with falling sheetrock. The court held that there were issues of fact as to whether the plaintiff was engaged in protected activity under Labor Law § § 240(1) and 241(6). As for the Labor Law § 200 claim, there were issues of fact as to whether the defendant contractor exercised supervision and control over the plaintiff’s work.

JONES V. 30 PARK PLACE HOTEL LLC 2019 N.Y. SLIP OP 09357 (DECEMBER 26, 2019)

action, the plaintiff must plead specific and applicable Industrial Code provisions. In a manner and method claim, the defendant must be shown to have supervised or controlled the plaintiff’s work.

2019 N.Y. SLIP OP 09368 (DECEMBER 26, 2019)

PRACTICE NOTE: Work that involves a significant

physical change to the configuration or composition of a building or structure is an alteration within the purview of the Labor Law.

adequate equipment to access a work area can serve as the prima facie basis for summary judgment. A plaintiff is not the sole proximate cause of his accident adequate safety devices are not provided.

2019 N.Y. SLIP OP 09096 (DECEMBER 19, 2019)

PRACTICE NOTE: To establish liability against

a party on a Labor Law § 200 claim, the party must exercise supervisory control over the injury-producing work.

SECOND DEPARTMENT

TOPICS: Elevation-Related Hazard, Safety Equipment, Sole Proximate Cause

CRUZ V. ROMAN CATHOLIC CHURCH OF ST. GERARD MAGELLA 174 A.D.3D 782 (JULY 24, 2019)

The plaintiff was injured when the scaffold platform he was working on collapsed and he fell through the frame of the scaffold to the ground. The court upheld summary judgment in favor of the plaintiff on his Labor Law § 240(1) claim. The defendants argued that the plaintiff failed to utilize clips to secure the platform to the frame of the scaffold and that this was the sole proximate cause of the accident. The court held that the defendant’s evidence was insufficient to raise a triable issue of fact as they relied on an affidavit from the plaintiff’s supervisor dated two and half years after the accident that did not explain whether there had been any search for clips, whose absence was not included in any of the accident reports. Further, the conclusory statement that had clips been used, the accident would not have occurred was insufficient to raise a triable issue of fact as to whether an absence of any clips was the sole proximate cause of the accident. PRACTICE NOTE: To prevail on a sole proximate

cause defense, a defendant has to eliminate all issues of fact as to other potential causes of the accident.

TOPICS: Elevation-Related Hazard, Safety Equipment, Sole Proximate Cause, Means and Methods, Industrial Code Regulations

DAVIES V. SIMON PROPERTY GROUP, INC. 174 A.D.3D 850 (JULY 31, 2019)

The plaintiff was injured when he fell while pushing a cart of concrete over a piece of plywood that had been laid on the ground where a sidewalk had been removed. The plaintiff testified that the plywood bridged a three-foot hole, which he fell into, but two other witnesses testified there was no hole or trench under the plywood. The court held that the conflicting testimony created an issue of fact as to whether the plywood was the functional equivalent of a scaffold and whether it was an adequate protection against risk arising from an elevation differential, so the defendants were not entitled to summary judgment as to Labor Law § 240(1). The court held that the defendants were not entitled to summary judgment as to Labor Law § 241(6)

either as the conflicting testimony also raised triable issues of fact as to whether there was sufficient bracing under the plywood as required by 12 NYCRR 23-1.22(b). With regard to the Labor Law § 200 claim, defendants failed to demonstrate lack of authority to supervise or control the plaintiff’s work as there was evidence they had stopped work by the plaintiff’s employer on two separate occasions due to unsafe conditions. The defendants also did not establish a lack of constructive notice of the alleged condition because there was testimony that the plywood had been in place for a couple of weeks before the accident. PRACTICE NOTE: On summary judgment, all

issues of fact must be eliminated.

TOPICS: Burden of Proof, Prima Facie Burden, Timing of Motion Practice

RUTHERFORD V. BROOKLYN NAVY YARD DEV. CORP. 174 A.D.3D 932 (JULY 31, 2019)

The defendant construction company moved for summary judgment as to the plaintiff’s Labor Law § § 200, 240, and 241 claims prior to the commencement of discovery. The court upheld the denial of summary judgment on the basis that the motion was premature. The court noted that the motion was made prior to a preliminary conference, the exchange of written discovery, or depositions. The court held that the plaintiff and co-defendant established that discovery was necessary on relevant issues that were exclusively within the knowledge of the defendant. PRACTICE NOTE: A motion for summary

judgment made prior to the completion of discovery will be denied as premature when it is established that discovery might lead to relevant evidence or that the facts essential to oppose the motion are exclusively within the knowledge of the moving party.

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TOPICS: Timely Notice, Additional Insureds, Duty to Notify

ALLEN V. LEON D. DEMATTEIS CONSTRUCTION CORP. 175 A.D.3D 642 (AUGUST 28, 2019)

In connection with an underlying Labor Law claim, Peerless Insurance Company moved to dismiss a contractor’s third-party action seeking to enforce Peerless’ duty to defend and indemnify, and for claims alleging bad faith in refusing to comply with Peerless’ contractual obligations. Peerless originally denied coverage claiming that the subject accident did not occur in connection with covered, contracted-for work, and because it did not receive timely notice of the claim from all entities seeking coverage under the policy. Although the court recognized that each entity claiming additional insured status was contractually obligated to provide independent notice of the accident to Peerless, it nevertheless determined that Peerless’ motion for summary judgment was properly denied, as there were questions of fact as to whether the two additional insureds were “united in interest” with the named insured, and thus, whether they could rely upon the timely notice provided by the named insured to satisfy their own duties to provide notice “as soon as practicable.” PRACTICE NOTE: It is critical that contractors

notify all potential avenues of insurance coverage of an accident in a timely fashion, and not rely upon the named insureds to do so as the failure to provide notice may jeopardize rights under a policy.

TOPICS: Falling Object, Sufficiency of Proof, Contractual Indemnification, Bifurcation

GUREWITZ V. CITY OF NEW YORK, ET. AL. 175 A.D.3D 658 (AUGUST 28, 2019)

The plaintiffs were injured when a temporary chain-link fence was blown over by the wind and struck them. The court held that the plaintiffs’ Labor Law § 240(1) claims should have been dismissed because the chain link fence was not an object being hoisted or one that required securing, and because the defendants established that the fence did not fall due to the absence or inadequacy of an enumerated safety device. However, the court affirmed the denial of the city of New York’s motion for summary judgment on the plaintiffs’ Labor Law § 200 claims, noting 10 | Labor Law Update

that because the city failed to establish that it neither created the alleged dangerous condition nor had notice of its existence, its motion should have been denied without regard to the sufficiency of the plaintiffs’ opposition papers. PRACTICE NOTE: Careful attention must be paid

to establishing the absence of negligence and notice when moving to dismiss Labor Law § 200 claims. In this matter, the plaintiff’s claims survived because the city failed to eliminate all questions of fact in its affirmative motion.

TOPICS: Sole Proximate Cause, Recalcitrant Worker, Labor Law § 240, Bifurcation, Unification

CASTRO V. MALIA REALTY, LLC 177 A.D.3D 58 (SEPTEMBER 11, 2019)

In this matter, the court had to determine whether the general rule of trial bifurcation in the Second Department could be relaxed to allow for a unified trial where both sides needed medical professionals to testify as to Labor Law § 240(1) liability issues. The plaintiff claimed the scaffold he was working upon collapsed. However, the defendants sought to introduce evidence through medical professionals that the plaintiff told the providers he was injured while lifting wood boards. The court noted the standard is that bifurcation of trials is generally favored, but unification is appropriate where the nature of the injuries has an important bearing on the issue of liability. The court held the trial judge has wide discretion on whether unification is appropriate and must analyze the issue in light of the relevant facts and circumstances presented in the individual cases. They concluded that the plaintiff’s application for a unified trial should have been granted. PRACTICE NOTE: In general, the defense favors

bifurcation to prevent juror sympathy arising from testimony regarding the plaintiff’s injuries. This case makes the standard for unification seem rather relaxed especially since the Court notes that bifurcation is not a hard and fast rule. Defense practitioners should be wary about what evidence they are introducing in the liability phase of trial to guard against such a situation.

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

GRAZIANO V. SOURCE BUILDERS AND CONSULTANTS, LLC 175 A.D.3D 1253 (SEPTEMBER 11, 2019)

The plaintiff, an employee of a fire sprinkler company, was tasked with installing sprinkler pipes in the hallway of a premises under renovation. Prior to the plaintiff beginning his task, a grid was installed for a drop ceiling which prevented him from utilizing a ladder. His supervisor instructed him to take a scaffold plank and run it across the two vertical walls of the hallway. However, electricians had run wires along the top of these walls and the plaintiff was injured when he tripped over these wires while adjusting a scaffold board. Although the defendants argued the plaintiff was the sole proximate cause of his injury because ladders were readily available and the plaintiff was aware of them, the court found issues of fact as to whether the plaintiff was the sole cause of his injuries and whether Labor Law § 240(1) applied. The plaintiff’s § 241(6) claim was dismissed for failure to plead an applicable Industrial Code section. Further, the court once again reiterated that OSHA violations are insufficient to support a claim under this section. PRACTICE NOTE: Where different versions of

events exist, the court will find issues of fact as to whether the Labor Law applies. However, where both versions establish a violation of the statute the court will grant a plaintiff summary judgment.

TOPICS: Means and Methods, Labor Law § 200, Common Law Negligence, Authority or Control Over Work, Supervision, Control, and Authority, Labor Law § 240(1), Elevation-Related Hazard, Burden of Proof

ROBLERO V. BAIS RUCHEL HIGH SCHOOL, INC. 175 A.D.3D 1446 (SEPTEMBER 18, 2019)

The plaintiff, a plumber, was not wearing a harness or lanyard and was injured when he fell from a scaffold. The plaintiff moved for summary judgment on liability based upon his Labor Law § 240(1) claim and the defendant property owner moved for summary judgment dismissing the plaintiff’s § 200 and common law negligence claims. The court held that the plaintiff was entitled to summary judgment on his § 2 40(1) claim based upon evidence that he was not provided with protective devices from gravity-related risks and that the absence of such protection was a proximate cause

SECOND DEPARTMENT

of his accident. The court also held that the property owner was not entitled to summary judgment dismissing the plaintiff’s § 200 and common law negligence claims because it did not establish that it lacked authority to exercise supervision and control over the plaintiff’s work. This was in light of evidence that it had a representative at the work site responsible for job coordination and safety supervision.

being hoisted. In this matter, the plaintiff was apparently on the same level as the object which struck him, which the court held was not an elevation-related accident.

PRACTICE NOTE: This case highlights the

176 A.D.3D 780 (OCTOBER 9, 2019)

burden of proof on a Labor Law § 240(1) claim and contains a nice analysis of the evidence presented on the § 200 and common law negligence claims. Of note, the court found that an employee who admitted that he was responsible for “safety supervision” created the requisite authority, control, or supervision over the work for a Labor Law § 200 or common law negligence claim.

TOPICS: Means and Methods, Labor Law § 200, Common Law Negligence, Authority or Control Over Work, Supervision, Control, and Authority, Labor Law § 240(1), Elevation-Related Hazard

LOMBARDI V. CITY OF NEW YORK, ET. AL. 176 A.D.3D 1521 (SEPTEMBER 25, 2019)

The plaintiff was injured when a metal plate used to cover an excavated trench struck him while it was being lifted off the roadway; he sued the city and Department of Transportation alleging common law negligence and violations of Labor Law. The court held that the defendants were entitled to summary judgment dismissing Labor Law § 200 and common law negligence claims because the defendants had only general supervisory control over the plaintiff’s work. The court also held that the defendants were entitled to summary judgment dismissing the § 240(1) claims because the plaintiff’s work did not arise from the elevation-related hazard contemplated by the statute as the accident did not occur due to a difference in elevation level between the worker and the materials or load being hoisted and secured. PRACTICE NOTE: This case demonstrates that

not every workplace injury will fall under the extraordinary protections of Labor Law § 240(1). The elevation-related hazards contemplated by the statute require either a difference between the elevation level of the required work and a lower level, aka a “falling worker” situation, or a difference between the elevation level where the worker is positioned and the higher level of the materials or load

TOPICS: Workers’ Compensation Bar, Construction Project, Grave Injury

ESHONKULOV V. RAFIQUL, ET AL.

The plaintiff was injured while working on a construction project and sued his employer, a co-employee and the property owner. The court held that defendant employer and co-employee were entitled to dismissal of the plaintiff’s complaint due to the exclusivity defense of Workers’ Compensation Law § 11, but not dismissal of the cross claims for contribution and contractual indemnification asserted by the property owner/defendants because the employer/defendants did not make a prima facie showing that the plaintiff did not suffer a “grave injury” or that there was not a contract requiring indemnification of the property owner/defendants. PRACTICE NOTE: When making a motion to

dismiss, it is important to focus on both the plaintiff’s claims and the cross-claims of the co-defendants.

accident arises out of the means and methods of the work the plaintiff must show the defendants supervised, directed, or controlled the work with sufficient specificity to establish that they were actually involved in the work.

TOPICS: Labor Law § 240, Property Owners, Application of Labor Law

COELHO V. CITY OF N.Y. 176 A.D.3D 1162 (OCTOBER 30, 2019)

The plaintiff was injured while in the course of his employment for a subcontractor, who was hired to perform paving work on a state highway in Queens County. While the plaintiff was working upon his vehicle, an asphalt roller collided with his vehicle and came into contact with his leg. The defendant, the city of New York, took the position that they were not a proper Labor Law defendant since they were not an owner as defined by Labor Law, did not enter the contract to perform the work, and did not direct, control, or supervise the work. The court found that the plaintiff failed to raise an issue of fact on this issue. PRACTICE NOTE: When analyzing a Labor Law

matter, the first question any practitioner should determine is whether the party they represent will be deemed an owner, contractor, or statutory agent.

TOPICS: Labor Law § 200, Common Law Negligence

BRUNO V. T-MOBILE, USA, INC. 176 A.D.3D 1160 (OCTOBER 30, 2019)

The plaintiff was a maintenance worker for the subject building and was injured while walking on the roof when he tripped over a “step over” on the roof. The plaintiff had gone to the roof that day to lead a T-Mobile worker to his equipment located on the roof. He brought claims based upon Labor Law § 200 and common law negligence. In dismissing these causes of action, the court found that the step over was not a dangerous or defective condition, the defendants did not create the condition, and they did not have notice of a condition. PRACTICE NOTE: The plaintiff has two routes

to establishing liability under Labor Law § 200. If the accident arises out of a defective condition, then the plaintiff must show that the owner or contractor created the condition or had notice of the condition and failed to remedy it within a sufficient time. Where the

TOPICS: Homeowner’s Exemption, Sufficiency of Proof, Agent of Owner

SANDERS V. SANDERS-MORROW 177A.D.3D 920 (NOVEMBER 20, 2019)

In this matter, the court was required to examine the scope of the homeowners’ exception for Labor Law § § 240 and 241(6). The plaintiff was injured while working on ladder at a residential home. Although the home’s deed and certificate of occupancy listed it as a one-family residence, it was divided into three separate living spaces. Two of the defendants were granted summary judgment based upon a showing that all three living spaces were occupied by family members and they all jointly paid for the household expenses. Finally, they showed they did not control or direct any of the work. PRACTICE NOTE: Although the residence

appeared to fall beyond the homeowner’s exemption at first glance, the defendants SPRING 2020 | 11

SECOND DEPARTMENT

provided sufficient detail about the circumstances of their living arrangement to enable the court to grant summary judgment.

TOPICS: Contractual Indemnification, Labor Law § 240(1), Fall from Ladder

JARA V. COSTCO WHOLESALE CORP. 2019 N.Y. SLIP OP 08664 (DECEMBER 4, 2019)

The plaintiff was injured while repairing an electrically operated gate when he fell from a ladder that he supplied to the jobsite. The plaintiff brought an action against the property owner, who then impleaded the lessee. The court granted summary judgment on the plaintiff’s Labor Law § 240(1) claim and granted the owner summary judgment for contractual indemnification against the lessee. Additionally, the owner showed that it was not negligent with respect to the plaintiff’s accident, did not commit any tortious acts, and did not direct, control, or supervise the plaintiff’s work. PRACTICE NOTE: The court granted the plaintiff

summary judgment on his Labor Law § 240(1) claim, even though he was using his own ladder that he provided. The court only looked to the fact that the plaintiff fell while using an unsecured ladder, not to who owned or provided the ladder.

TOPICS: Enumerated Activity, Routine Maintenance, Prima Facie Burden

LOPIPERO V. MTA LONG ISLAND RAILROAD 2019 N.Y. SLIP OP 08841 (DECEMBER 1, 2019)

The plaintiff was assisting in the removal of stacked railroad ties when one of the ties fell from a pallet and struck his right leg. The plaintiff brought an action alleging violations of Labor Law § § 200, 240(1), and 241(6). With respect to § 240(1), the court found that the plaintiff’s submissions in support of the motion for summary judgment failed to eliminate triable issues of fact as to whether the plaintiff was engaged in an enumerated activity under § 240(1) or whether he was engaged in routine maintenance at the time of the accident. As to § 241(6), the court found that the plaintiff failed to establish that his injuries occurred due to construction or demolition work within the meaning of the statute.

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PRACTICE NOTE: Because the plaintiff failed

to meet his prima facie burden in his motion for summary judgment, the court ruled that his motion should have been denied regardless of the sufficiency of the defendants’ opposition papers.

PRACTICE NOTE: The evidence showed that

when the plaintiff was injured, he was doing work on the drainpipe that he was not instructed to do. Based upon this, the court found that the plaintiff’s accident was not due to a dangerous or defective condition in the premises, but rather, the method and manner of the work.

TOPICS: Homeowners’ Exemption, Fall from Ladder, Manner and Method

LAZO V. RICK

2019 N.Y. SLIP OP 08840 (DECEMBER 11, 2019)

The plaintiff was injured while working at a new single-family home, when he fell from a 32-foot ladder provided by his employer. The defendant/homeowners’ motion for summary judgment on Labor Law § § 240(1) and § 241(6) was granted because the defendant established that the work was conducted at their single-family residence and that they did not direct or control the plaintiff’s work. Summary judgment was also granted on Labor Law § 200 and common law negligence, as the defendants did not have the authority to supervise or control the performance of the plaintiff’s work. PRACTICE NOTE: The plaintiff’s deposition

testimony was key in granting the defendants’ motion, where he testified that his employer supervised all of his work and provided the subject ladder, and that he neither spoke with nor received instructions from the defendants prior to the accident.

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

NICOLA V. UNITED VETERANS MUT. HOUSING NO. 2 CORP. 2019 N.Y. SLIP OP 09012 (DECEMBER 18, 2019)

The plaintiff was injured while in the course of his employment for third-party defendant. His employer was hired to convert the building’s boiler from oil to gas. The accident occurred while the plaintiff was using a hammer drill to create a hole through the wall of the boiler room, when the drill suddenly caught and spun around striking him. The defendants moved to dismiss the plaintiff’s Labor Law § 241(6) cause of action on the basis that the various Industrial Codes cited were either too general or did not apply to the facts of the accident. The court agreed with the defendants and dismissed the cause of action to the extent of the Industrial Code sections alleged. PRACTICE NOTE: A Labor Law § 241(6) cause

of action must be supported by Industrial Code sections which are sufficiently specific and whose violation proximately caused the accident. General provisions requiring general safety are insufficient to support such a claim.

TOPICS: Labor Law § 200, Manner and Method

PCHELKA V. SOUTH CROFT, LLC 2019 N.Y. SLIP OP 08853 (DECEMBER 11, 2019)

The plaintiff was burned by hot water while changing a drainpipe that was going to be connected to a bathroom sink. At the disposition, he testified that he only received work instructions from his employer. Summary judgment was granted for the defendants on the plaintiff’s Labor Law § 200 and common law negligence claims. The court found that the plaintiff’s accident involved the manner in which his work was performed, rather than any dangerous or defective condition on the premises. The defendants were entitled to summary judgment because they showed that they did not exercise any supervision or control over the performance of the plaintiff’s work.

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

ORTEGA V. ROMAN CATHOLIC DIOCESE OF BROOKLYN 2019 N.Y. SLIP OP 09013 (DECEMBER 18, 2019)

While working as a concrete laborer at the defendants’ property in Queens, the plaintiff was injured when the front leg of a three-wheeled compressor gave way, causing a portion of the plaintiff’s right-ring finger to become severed. The plaintiff commenced an action to recover damages for personal injuries, alleging a violation of Labor Law § 241(6) predicated on alleged violations of Industrial Code (12 NYCRR 23-1.5(c), 23-1.28(a) and (b), and 23-9.2(a). At his deposition, the plaintiff testified that approximately two months before the incident, a locking mechanism

SECOND DEPARTMENT

that served to stabilize the front leg and wheel of the compressor had broken. The plaintiff also testified that, as a makeshift remedy, his boss replaced the broken component with an ordinary screwdriver. The court held that the plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the issue of liability on the Labor Law § 241(6) cause of action by showing that there were violations of certain relevant Industrial Code sections, and that those violations were a proximate cause of his injuries. PRACTICE NOTE: Make sure the violations

alleged are the proximate cause of injury, especially when dealing with § 241(6). Be sure to look at the specific acts that lead to the accident.

TOPICS: Labor Law § 240, Labor Law § 241(6), Property Owners, Application of Labor Law, Authority or Control Over Work

PAUL V. VILLAGE OF QUOGUE 2019 N.Y. SLIP OP 09014 (DECEMBER 18, 2019)

The plaintiff’s employer was hired to install a Wi-Fi unit on a telephone pole located within the town of Southampton and the village of Quogue. He placed his aluminum ladder against the telephone pole and attempted to secure it in place using a wire that was attached to the pole. As he was descending the ladder, the wire snapped causing him and the ladder to fall. The plaintiff sued the town and village. The town did not own the pole or wire so they moved for summary judgement to dismiss all Labor Law causes of action. The court noted the term “owner” is not limited to the title holder of the property, but also applies to entities that have an interest in the property and contracts for work to be performed for their benefit. Here, the court found the town did not have a sufficient nexus to the property since they did not contract for the work and did not supervise, direct, or have any involvement with it.

TOPICS: Labor Law § 240, Homeowners’ Exemption

ROMERO V. BANGIYEB 2019 N.Y. SLIP OP 09048 (DECEMBER 18, 2019)

The plaintiff’s employer was hired by the homeowner. The plaintiff was injured when he fell to the ground while climbing through an attic window out onto a wet roof. At the conclusion of discovery, the plaintiff moved for summary judgment on Labor Law § 240(1). The defendant cross moved to dismiss on the basis that they were entitled to the one-family Homeowners’ Exemption to the Labor Law. The court noted the exception requires the home to be a one- or two-family premises and the owner must not have directed or controlled the work. The seminal part of the analysis is whether the site and purpose of the work relates to the owners residential use of the property. Here, at the time of the work, the home was for the personal use of the owner. Although the plaintiff came forward with proof that the home was subject to a criminal forfeiture, thus demonstrating a commercial purpose, this was after the fact, rather than when the work was on going, and the court dismissed the § 240(1) claim. PRACTICE NOTE: When seeking the protection

of the one-family Homeowners’ Exemption, the focus is on the intention of the homeowner at the time work was on going, rather than any subsequent use.

PRACTICE NOTE: The analysis of whether a

party is an “owner” must focus not only on the entity’s title, but also on their involvement, if any, in the work and premises.

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FOURTH DEPARTMENT

TOPICS: Labor Law § 241(6), Industrial Code Violations, Sufficiency of Proof

TOPICS: Labor Law § 240(1), Covered Work, Construction Project

WINTERS V. UNILAND DEVELOPMENT CORPORATION

PRESTON V. APCH, INC.

174 A.D.3D 1293 (JULY 5, 2019)

The plaintiff, an electrician hired to make the wiring in an office building safe, was shocked after stripping away plastic sheeting in order to assess the wiring’s voltage. Defendants were not entitled to dismissal of the plaintiff’s Labor Law § 241(6) claim based on alleged violations of 12 NYCRR 23-1.13(b)(4), 23-3.2(a)(2), and (3) because they failed to establish that they did not violate the regulations, that the regulations were not applicable to the facts, or that the violations were not a proximate cause of the accident. PRACTICE NOTE: To be entitled to dismissal

of a § 241(6) claim, a defendant must only show that either 1) they did not violate the cited regulations; 2) the regulations are not applicable to the facts; or 3) the violation was not a proximate cause of the accident.

TOPICS: Application of Labor Law, Labor Law § 240(1), Covered Work

ALLYN V. FIRST CLASS SIDING, INC. 174 A.D.3D 1340 (JULY 5, 2019)

The plaintiff was injured in a forklift accident while delivering supplies to a prospective worksite before any construction work began. The defendant-contractor that bought the supplies and was to perform the work was not present on the site when the accident occurred. The defendants were entitled to dismissal of the plaintiff’s § 240(1) claim because the plaintiff was not “hired to take any part in the repair work” and was not injured while repair or renovation work was ongoing. PRACTICE NOTE: To succeed on a Labor Law §

240(1) claim, a plaintiff must be injured while engaging in a protected activity ongoing and contemporaneous with the type of work covered by the statute.

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PRACTICE NOTE: A plaintiff’s contributory

negligence is not a defense to a Labor Law § 240(1) claim.

175 A.D.3D 850 (AUGUST 22, 2019)

The plaintiff’s decedent, a welder who was assembling a rotor compartment weighing approximately five tons at the defendant’s industrial facility, was killed when the rotor compartment fell onto the plaintiff. The compartment was being assembled to fulfill the decedent’s employer’s contract with the defendant customer, and was to be loaded on a truck and transported to the customer’s power plant where the air preheater would be assembled. The decedent was not engaged in a covered activity under Labor Law § 240(1) because he was performing his “customary occupational work of fabricating” and welding during the “normal manufacturing process,” and was not involved in the construction project at the customer-defendant’s power plant when he was injured. PRACTICE NOTE: The fact that the decedent was

fabricating a rotor compartment customized to the customer’s specifications and not of universal form or design did not transform the nature of the work into a covered activity as part of a construction project, and the protection of § 240(1) is not invoked when a contract repeatedly uses the word “construction.”

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

WOLF V. LEDCOR CONSTRUCTION, INC. 175 A.D.3D 927 (AUGUST 22, 2019)

The plaintiff was injured when the scaffold he was standing on tipped over. Discovery established that one of the scaffold’s wheels had been placed on top of a plastic curing blanket that was stretched over a drain hole, and the accident occurred when the wheel ripped through the blanket and fell into the hole. Labor Law § 240(1) applied because the scaffold was not placed to give proper protection to the plaintiff, and the plaintiff was not the sole proximate cause of his accident even though he may have been contributory negligent by failing to observe the drain hole. The defendant-contractors with safety and/or supervisory authority over the project were also liable under Labor Law § 200 and for commonlaw negligence because this was a “dangerous or defective condition” on the premises.

TOPICS: Supervision, Direction and Control, Labor Law § 200, Labor Law § 240(1), Labor Law § 241(6)

PELONERO V. STURM ROOFING, LLC 175 A.D.3D 1062 (AUGUST 22, 2019)

The plaintiff commenced a Labor Law § § 200, 240(1), and 241(6) and common-law negligence action seeking damages for injuries that he allegedly sustained due to a fall at a roofing work site. The defendant appealed from an order granting the plaintiff’s motion for partial summary judgment on the issue of liability. The court held that a genuine issue of material fact existed as to whether the plaintiff was a worker under the scaffolding law; whether the roofing company was an owner or contractor under scaffolding law; as to how the alleged accident occurred; whether the roofing company had control over the work site or created or had actual or constructive notice of the dangerous condition that allegedly caused the worker to fall; and what specific Industrial Code provisions were allegedly violated. PRACTICE NOTE: For claims that arise under

§ § 200, 240(1), and 241(6), be sure to pay attention to what conditions the worker was working under; whether one is an owner or contractor under the Labor Law; how the accident occurred; whether one had control over the work site or had actual or constructive notice of the dangerous condition that allegedly caused the accident; and what specific regulations, provisions, or statutes were violated. If adequate discovery is conducted, all of these issues can raise a genuine issue of material fact and can preclude summary judgment for the worker on the issue of liability.

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TOPICS: Labor Law § 240(1)

PHEARSDORF V. STATE 175 A.D.3D 1819 (SEPTEMBER 27, 2019)

Following a non-jury trial in favor of the plaintiff on the issue of liability under Labor Law § 240(1) in the Court of Claims, the Appellate Division held that there was a fair interpretation of the evidence supporting the court’s determination that the claimant was not furnished with the requisite safety devices and that the absence of adequate safety devices was a proximate cause of his injuries. PRACTICE NOTE: Under Labor Law § 240(1),

courts will give due deference to issues involving witness credibility in determining whether safety devices were or were not furnished on a particular jobsite.

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

KULIGOWSKI V. ONE NIAGARA, LLC 177 A.D.3D 1266 (NOVEMBER 8, 2019)

The plaintiff’s job on the day of the accident was to supervise the transport of an air conditioner and its components to the area where that equipment was to be installed, and plaintiff was injured while picking up a loose piece of duct work on the public roadway. The defendants’ request for a dismissal on the basis that the plaintiff’s own conduct proximately caused the accident was denied because it was foreseeable that the plaintiff would pick up the loose duct work. The court also found 12 NYCRR 23-9.85(c), (h), and (j) sufficiently specific to support a Labor Law § 241(6) claim. PRACTICE NOTE: When a question of proximate

cause involves an intervening act, liability turns on whether the intervening act is a normal and foreseeable consequence of the situation created by the defendant’s negligence.

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

TOPICS: Labor Law § 240(1), Homeowners’ Exemption, Residential and Commercial Purpose

DZIADASZEK V. LEGACY STRATFORD, LLC

GONZALEZ V. ROMERO

The plaintiff was injured when he fell to the ground after opening and exiting the door of a construction trailer in an attempt to stop a coworker from performing improper work. The door the plaintiff exited was one of two doors on the trailer that did not have stairs attached to it. The defendants failed to establish the plaintiff’s actions were the sole proximate cause of the accident (i.e., that there was a staircase by which the plaintiff could have exited the trailer), that he knew that a staircase was available and that he was expected to use it, and that he chose for “no good reason” not to, and had he used it, he would have been injured.

The plaintiff was injured after he fell from a 20 foot ladder he had set on a scaffold to power wash the defendant’s barn, which was used for commercial events. The defendants also resided on the property. The plaintiff sufficiently demonstrated that his injury was proximately caused by the failure of an appropriate safety device under Labor Law § 240(1) and the defendants failed to raise an issue of fact as to whether the homeowners’ exemptions applied, because the work the plaintiff was hired to perform related directly to the preparation of the structure for commercial use.

PRACTICE NOTE: The recalcitrant worker

PRACTICE NOTE: Where a structure serves a

177 A.D.3D 1276 (NOVEMBER 8, 2019)

defense will be rejected when a defendant cannot establish the plaintiff was aware of an appropriate safety device and, for no good reason, chose not to use it.

2019 N.Y. SLIP OP 09149 (DECEMBER 20, 2019)

mixed residential and commercial purpose, the homeowner’s exemption will not apply if the work performed does not directly relate to the residential use of the building.

TOPICS: Failure to Follow Safety Instructions, Labor Law § 240(1), Labor Law § 241(6)

LAGARES V. CARRIER TERMINAL SERVICES, INC. 177 A.D.3D 1394 (NOVEMBER 15, 2019)

The plaintiff, a construction worker, brought labor law and common law negligence action against a building owner seeking damages for injuries sustained from a fall through roof of owner’s building. The defendant appealed from an order that granted the plaintiffs’ motion for partial summary judgment on the issue of liability under Labor Law § 240(1) and denied those parts of a defendant’s cross motion seeking summary judgment dismissing the § 240(1) cause of action and the § 241(6) claim. The court held that the plaintiffs met their initial burden on the motion by establishing that the defendant’s failure to provide any fall protection was a proximate cause of the accident. In opposition, the defendant failed to raise a triable issue of fact whether the plaintiff’s own negligence was the sole proximate cause of his injury. PRACTICE NOTE: Under Labor Law § § 240(1)

and 241(6) claims, a plaintiff’s mere failure to follow safety instructions cannot be the sole proximate cause of the accident.

SPRING 2020 | 15

Index A

Additional Insureds 10

Grave Injury 11

Safety Equipment 8 9

Agent of Owner 11

Gravity-Related Risk 4 6

Scope of Work 6

Ambiguous Contract Language 6

Guarding/Safety Features 7

Sole Proximate Cause 4 7 8 9 10 14 15

Application of Labor Law 7 11 13 14 Authority or Control Over Work 8 10 11 13 B Bifurcation 10

Industrial Code 12 Industrial Code Regulations 8 9

Labor Law § 240(1) 4 5 6 7 8 10 11 12 14 15

Construction Project 11 14

Labor Law § 241(6)

Contractual Indemnification 8 10 12

5 6 7 8 10 12 13 14 15 M

Crane Collapse 5

Manner and Method 8 12 Means and Methods 9 10 11

D N

Duty to Notify 10

Notice of Condition 5 O

Early Summary Judgment 6

Open Excavation 6

Elevated Work Platform 5

OSHA 10

Elevation 5 Elevation-Related Hazard 8 9 10 11

P Prima Facie Burden 9 12

Enumerated Activity 5 8 12

Property Owners 11 13

Protected Activity 8 Failure to Follow Safety Instructions 15 Fall from Ladder 4 5 12 Falling Object 10 Foreseeability 15

Tripping Hazards 5 6 U

Labor Law § 240 4 10 11 13

Comparative Negligence 4

Timely Notice 10 Timing of Motion Practice 9

Labor Law § 200 4 7 8 10 11 12 14 15

Comparative Fault 5

Direction and Control 14

Common Law Negligence 7 10 11

Covered Work 5 14

Supervision, Control, and Authority 7 10 11

Industrial Code Violation 6 8 12 14

Common Law Indemnity 4

Contradicting Testimony 6

Supervision 14

C Choice of Law 7

Suitable Protection 7

Homeowner Exemption 11 12 13 15

Burden of Proof 4 6 9 10

Causation 5

Sufficiency of Proof 10 11 14

Hoisting 5

Proximate Cause 15 R Recalcitrant Worker 4 6 10 Residential and Commercial Purpose 15 Routine Maintenance 12

Unification 10 W Workers’ Compensation Bar 11

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