SECOND FIRST DEPARTMENT
TOPICS: Res judicata, Collateral estoppel,
Burden of proof, Authority to control or supervise BRAVO V. ATLAS CAPITAL GROUP 196 A.D.3d 627 July 21, 2021
The plaintiff, a construction worker, alleged that he was injured when a forklift operated by a coworker struck his foot. The plaintiff filed two lawsuits arising from the same incident, alleging violations of the labor law, one against the owners and a second against the contractor and other entities. The first action was dismissed on the merits as against the owner by way of summary judgment. In denying the contractor’s motion for summary judgment in the second action under theories of res judicata and collateral estoppel, the court found that since the contractor was not a party to the prior action and further, failed to establish a connection (as between the interests of itself and the owner in action one) sufficient to establish privity. The court further stated that “[privity] includes those who are successors to a property interest, those who control an action although not formal parties to it, those whose interest are represented by a party to the action.” As to the other defendant, the court dismissed the plaintiff’s claims, finding that the defendant did not have the authority to control or supervise the performance of the work at the premises. PRACTICE NOTE: When two actions are filed with
respect to the same incident or occurrence, and the first action is dismissed on the merits, defendants in the second action seeking dismissal under the theory of res judicata, must establish a connection with the dismissed entity sufficient to establish privity.
TOPICS: Labor Law § 240, Ladder, Recalcitrant
worker, Sole proximate cause, Spoliation of evidence GARCIA V. EMERICK GROSS REAL ESTATE, L.P. 196 A.D.3d 676 July 28, 2021
The plaintiff allegedly was injured when a ladder he was using to perform his work in the boiler room suddenly shifted and caused him to fall. The ladder was supplied to the plaintiff by the defendant. In denying the plaintiff’s labor law claims, the court noted that there were issues of fact as to whether the plaintiff was a recalcitrant worker, based on testimony that functional ladders were available for the plaintiff to use on the day of the incident, that the plaintiff’s employer forbid employees from us-
ing ladders other than the ones it provides its employees, and that the plaintiff did not have express or implied permission to use the defendant’s ladder. Notwithstanding the foregoing, the court found that the defendant’s failure to preserve the ladder amounted to spoliation of evidence, warranting an adverse inference against the defendant at the time of trial. Failure to preserve key evidence (e.g., mechanism of the incident/injury) may qualify as spoliation of evidence, warranting an adverse inference against a party at the time of trial. PRACTICE NOTE:
TOPICS: Labor Law § 200, Labor Law § 241(6),
Authority to supervise work, Industrial code violations KEFALOUKIS V. MAYER 197 A.D.3d 470 August 4, 2021
The plaintiff was working as a carpenter when he tripped over a bucket of compound in the middle of the room where he was working. The court granted summary judgment to the defendants and dismissed the plaintiff’s causes of action for Labor Law §§ 200 and 241(6). In dismissing the § 200 claim, the court found that the plaintiff was working with the bucket of compound over which he fell at the time of his accident. The plaintiff and his employer controlled the means and methods of where to store job materials, which included the bucket of compound. In dismissing the § 241(6) claim, the court found that 12 NYCRR 23-1.7(e)(2) did not apply because the bucket of compound at issue was among the tools the plaintiff was working with and was positioned for and consistent with the work the plaintiff was performing at the time of his accident. PRACTICE NOTE: The court found that 12 NYCRR
23-1.7(e)(1) did not support a violation of the plaintiff’s § 241(6) claim, as the plaintiff was not injured in a “passageway” as required by the code section.
TOPICS: Authority to supervise work, Agency,
Homeowner’s exemption NAVARRA V. HANNON 197 A.D.3d 474 August 4, 2021
The plaintiff was injured while performing structural repairs on a property that consisted of a
single-family home. The court dismissed the plaintiff’s general negligence, Labor Law §§ 200 and 241(6) claims against the defendants, which consisted of two contractors and the property owner. In dismissing the claims against the contractor defendants, the court found that neither party was an owner, general contractor, or agent of the general contractor. Neither contractor performed work at the property while the plaintiff was working there. They also lacked the authority to supervise or control the plaintiff’s work. One contractor was only involved in completing building permits that were unrelated to the plaintiff’s work at the property. The second contractor did perform work at the property, but only in the years before and after the plaintiff’s work. It was never working on the property at the same time as the plaintiff. The court also dismissed the claims against the property owner. The evidence established that she was the owner of a single-family home and did not control the work performed by the plaintiff or his employer. She also lacked the authority to supervise or control the method or manner of the plaintiff’s work. PRACTICE NOTE: Even though the property own-
er hired separate contractors to perform different aspects of the work, this did not make her a “general contractor,” as she was not responsible for supervising the construction project and enforcing safety standards.
TOPICS: Enumerated activity, Labor Law § 200,
Defective condition, Alterations
ALBERICI V. GOLD MEDAL GYMNASTICS 197 A.D.3d 540 August 11, 2021
The plaintiff was injured when he fell through a soffit while installing an electrical channel letter sign on the exterior of a building. The trial court granted summary judgment to the property owner on the plaintiff’s Labor Law §§ 200, 240(1), and 241(6) claims, and to the property’s lessee on the plaintiff’s Labor Law §§ 240(1) and 241(6) claims. The Appellate Division reversed. With respect to the plaintiff’s §§ 240(1) and 241(6) claims, the court found that the defendants failed to establish that the plaintiff was not “altering” the subject building when he was engaged in installing the letter sign. In denying summary judgment on § 200 to the owner, the court noted that, because the accident was alleged to involve both defects in the premises as well as the equipment used at the worksite, the defendant was required to address the proof SPRING 2022 | 9
