THIRD DEPARTMENT

FIRST DEPARTMENT THIRD DEPARTMENT

TOPICS:Labor Law §200, Labor Law §241(6), 12 NYCRR 23-1.30 – sufficient illumination

EDWARDS V. STATE UNIV. CONSTR. FUND

196 A.D.3d 778 July 1, 2021

The plaintiff was injured during a renovation project at a SUNY building when he hit his head on a wooden beam supporting a scaffold within a stairwell, thereafter causing the plaintiff to fall down and sustain injuries. At the time of the incident, the plaintiff was on his way to work on the roof, which could only be accessed by the stairwell where the beam was located. The defendants’ motion to dismiss Labor Law §200 was denied based on testimony that the defendants were in and out of the project daily; looked at the beam prior to the incident; “ducked” under the beam to pass through the stairwell; and that the defendants had “general oversight” of the project. There were also issues of fact with regard to supervisory control and notice of the low-hanging beam in order to impose liability under §200 and common law negligence.

PRACTICE NOTE: Where a plaintiff’s injury derives from an unsafe work practice, an owner or general contractor may be found liable only upon a showing of supervisory control and actual and/ or constructive notice of the unsafe manner of performance that brought about the accident.

TOPICS:Labor Law §240(1), Ladder

BEGEAL V. JACKSON

197 A.D.3d 1418 September 16, 2021

The plaintiff fell 12 feet to the ground while standing on an aluminum ladder in the course of erecting/constructing a ventilation stack. He placed an extension ladder in an area that had snow on the ground and raised the extension part of the ladder to reach the building where the ventilation stack was to be erected. There were no problems with the ladder; the ladder was “secure” prior to falling. Prior to falling, he shifted his position while on the ladder and it shifted on the ground. In granting the plaintiff’s partial summary judgment pursuant to Labor Law §240(1), the court held that the defendants failed to demonstrate that there was no statutory violation pursuant to labor law because the plaintiff’s testimony regarding the adequacy of the ladder (i.e. no defective condition of the ladder) is not a question of fact when the evidence in the record establishes that the ladder “slips or otherwise fails to perform its function of supporting the worker.” PRACTICE NOTE: Even where there is no evidence that a ladder is defective, liability can be imposed under Labor Law § 240(1) where the evidence supports that a ladder collapses, slips or otherwise fails to perform its function of supporting a worker and his/her materials, and absent evidence that the worker was the sole proximate cause for such that causes injury.

TOPICS:Labor Law §200, Labor Law §240(1), Structure, Routine maintenance, Repairs, Enumerated activity

EHERTS V. SHOPRITE SUPERMARKETS, INC.

199 A.D.3d 1270 November 24, 2021

The plaintiff, a plumber, fell from a ladder while turning off water connections. The defendantsupermarket complained of low water pressure. Upon inspecting the premises, the plaintiff suspected a potential water break which required turning off the store’s water connections, including the water heater that was not accessible at floor level. To access the water heater, the plaintiff placed a ladder against inventory shelves, and then stepped from the ladder onto a shelf, whereafter the shelf detached from the wall and the plaintiff fell to the ground and sustained injuries. The defendant moved for summary judgment, which was denied on the grounds that the shelf was considered a defective safety device covered by the statutory language of §240(1), and that the plaintiff’s conduct in attempting to access the water heater was also protected. More specifically, in order to access the above-level water heater, it was found necessary for the plaintiff to place a ladder against the shelf and step over the shelf to reach the heater’s platform. Thus, the configuration of the heater constituted a structure embraced by Labor Law §240(1). Additionally, the court held that the plaintiff’s act of performing a preventative maintenance task due to an isolated and unexpected water event, as opposed to a routine maintenance call, established that the plaintiff was engaged in repair work at the time of the incident, which was protected by Labor Law §240(1).

PRACTICE NOTE: Whether an item is or is not a “structure” covered by Labor Law §240(1) is fact specific and must be determined on a case-bycase basis. Also, repair work for isolated and unexpected events may implicate the protections afforded by Labor Law §240(1), whereas acts of routine maintenance work involving replacing components in the course of normal wear and tear do not. TOPICS:Common law negligence, Covered person, Excavation work

BUCKLEY V. 18 E. MAIN ST., LLC

199 A.D. 1283 November 24, 2021

The plaintiff, a pedestrian, was walking along the sidewalk near a gas station when she allegedly stepped on a rock, causing her to fall and injure her ankle. Earlier that day, the defendantexcavator had been performing ongoing excavation work to the gas station, which involved removing dirt and rocks from the ground to later fill with new material. The plaintiff commenced a personal injury action against the defendant for claims of common law negligence and violations of Labor Law §§200 and 241. The plaintiff’s labor law claims were dismissed by the lower court. The plaintiff appealed the part of the defendant’s motion that dismissed her common law negligence claims, and the court reversed, finding that circumstantial evidence established that the defendant’s earlier acts of digging up thousands of rocks in the area where the plaintiff fell was sufficient to raise an issue of triable fact related to whether its performance of excavation work launched a force or instrument of harm against the plaintiff.

PRACTICE NOTE: Labor law does not apply to a non-contractual plaintiff who is merely walking within the vicinity of a construction site and becomes injured. Rather, common law negligence applies to such a scenario, and liability can be imposed upon a subcontractor based on circumstantial evidence that its work “launches a force or instrument of harm” that caused the alleged injury.

TOPICS:Labor Law §200, Labor Law §240, Labor Law §241(6), Homeowner’s exemption

CAPUZZI V. FULLER

200 A.D.3d 1448 December 23, 2021

The defendant, a property owner, was granted summary judgment pursuant to Labor Law §§ 200, 240, and 241, based upon the finding that the defendant satisfied his burden of showing that the homeowner’s exception applied. In coming to its decision, the court considered, inter alia, the property owner’s sworn affidavit that although the defendant visited the construction site where the plaintiff was injured from time to time; observed the progression of the construction work; and paid the plaintiff, the defendant did not exert supervisory control

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over the plaintiff; did not direct the plaintiff’s work at the site; did not arrange for any of the equipment at the site; and further, was not present at the site when the incident involving the plaintiff occurred. The plaintiff attempted to defeat summary judgment by submitting evidence that the defendant had discussions with the plaintiff about work orders, logistics of the project, materials, and architectural drawings; that the defendant “checked in” with the plaintiff on a daily basis; that the defendant told the plaintiff where to park at the site and how to lock a gate at the end of the day; that the defendant moved various windows and stairs, and applied tape to plywood at the site; and the defendant provided general directions and instructions in a conclusory manner as to the plaintiff’s carpentry work. Notwithstanding the plaintiff’s contentions, such submitted evidence was insufficient to establish that the defendant directed or controlled the manner of the plaintiff’s specific work that caused injury.

PRACTICE NOTE: A property owner may defeat liability imposed by labor law through the homeowner’s exception, which can be established by evidence that the defendant did not exercise supervisory control or authority over the activity which brought about the injury, and where conclusory evidence is insufficient to support such a finding to the contrary.

TOPICS:Labor Law §240(1), Repairs, Routine maintenance, Enumerated activity

RUSSO V. VAN DALE PROPS., LLC

200 A.D.3d 1470 December 23, 2021

The plaintiff, a machine equipment operator, was injured after an overhead door located at the defendant-owner’s property closed in on him while walking outside to pull on a cable to dislodge the door, causing him to sustain injuries. Prior to the incident at issue, the door had become damaged in the course of a coworker’s performance at the site. The damage was identified and another co-worker made an unsuccessful attempt to repair the door so that it could be shut to ensure that the property was secured at the end of the work day. The Appellate Court found that the lower court properly denied the defendant’s cross motion for summary judgment, which moved for the dismissal of Labor Law § 240(1). The defendant argued that the plaintiff was not a worker covered by the language in §240(1), and that at the time of the injury, the plaintiff was engaged in routine maintenance as opposed to requisite repair work. However, the court was unconvinced. In reviewing the record, the court reasoned that §240(1) indeed imposed liability on the defendant-property owner because (1) the plaintiff was permitted to work on the premises through his employment with the subcontractor who leased the property from the defendant; and (2) the plaintiff was engaged in conduct that constituted an emergency repair to an acutelydamaged door that was necessary to secure the defendant’s property, as opposed to mere routine maintenance work.

PRACTICE NOTE: A property owner who does not itself hire a plaintiff to perform work at the worksite is irrelevant for a finding of liability under Labor Law §240(1). Also, in determining whether §240(1) applies to the incident at issue, the court will look for fact-specific evidence to distinguish repairs from routine work, including factors such as the type of work that was performed and the need for such work performance.