SECOND DEPARTMENT

FIRST DEPARTMENT SECOND 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 using 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.

PRACTICE NOTE: 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.

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 owner 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

FIRST DEPARTMENT SECOND DEPARTMENT

applicable to both liability standards. The defendant in this case failed to establish that it lacked actual notice of the allegedly defective condition in the soffit of the subject building.

PRACTICE NOTE: In denying summary judgment, the court noted that “altering” a building involves making a significant physical change to the configuration or compositions of the building or structure. Whether a physical change is significant or not depends on what effect it has on the physical structure.

TOPICS:Labor Law §240(1), Proximate cause, Evidence

GRIEVE V. MCRT NORTHEAST CONSTR.

197 A.D.3d 623 August 18, 2021

The plaintiff fell from a ladder while installing pipe hangers in a ceiling at a construction site. The Appellate Division reversed the trial court’s granting of the defendants’ motions for summary judgment on the plaintiff’s Labor Law §240(1) claim. In doing so, the court found that there was conflicting witness testimony as to whether a violation of Labor Law §240(1) caused the plaintiff to fall. One witness saw that a leg of the ladder involved in the plaintiff’s fall was situated in a hole in the floor. Another witness heard the plaintiff state to paramedics that he fell off the ladder after becoming dizzy. This conflict created an issue of fact sufficient to deny the motions.

PRACTICE NOTE: The court noted that evidence of an accident, standing alone, does not establish either a violation of Labor Law §240(1) or causation.

TOPICS:Labor Law §240(1), Owners

ESTICK V. MYRTIL

197 A.D.3d 693 August 25, 2021

The plaintiff was injured when he fell from a ladder while installing cable services for a tenant occupying a property owned by the defendant. The plaintiff subsequently brought an action against the property owner for common law negligence and Labor Law §§ 200, 240(1), and 241(6). The court granted the defendant’s motion for summary judgment and dismissed the plaintiff’s labor law claims. In doing so, the court found that there was an insufficient nexus between the plaintiff’s work and the defendant. PRACTICE NOTE: The appellate decision did not discuss the underlying facts that formed the basis for dismissing the plaintiff’s labor law claims. However, the trial court’s decision notes the defendant owner did not have any knowledge that the plaintiff would be entering the subject property and performing work for the tenant prior to the accident.

TOPICS:Labor Law §200, Supervision and control, Dangerous conditions

UHL V. D’ONOFRIO GEN. CONTRS., CORP

197 A.D.3d 770 August 25, 2021

The plaintiff was injured when he was shocked by static electricity caused by spray insulation foam that had been applied on the roof of a building. The plaintiff then fell where a portion of stairs was missing. The plaintiff brought an action for common law negligence and Labor Law § 200. The subcontractor defendant who applied the spray insulation brought a thirdparty action against the manufacturer of the spray foam. The trial court denied the subcontractor defendant’s motion for summary judgment dismissing the plaintiff’s complaint. The Appellate Division reversed and found that the subcontractor defendant was entitled to summary judgment on both Labor Law § 200 and common law negligence. The subcontractor defendant established that it did not have the authority to supervise or control the work area where the plaintiff’s accident occurred, and that it did not create any dangerous condition which caused the plaintiff’s accident. Further, the missing steps that the plaintiff fell from had been removed by another contractor.

PRACTICE NOTE: The court’s decision that the subcontractor defendant did not have the authority to supervise or control the work was based on a fact-specific analysis. The court noted that the subcontractor defendant established that it was not authorized to direct the general contractor’s work. Further, all of the warning signs pertaining to the spray foam and potential shock were placed by the general contractor. Finally, emails from the spray foam manufacturer about the necessity for warning signs and other safety precautions were sent to the general contractor and others, but not the subcontractor defendant. TOPICS:Labor Law §241(6), Labor Law §200, Labor Law §240(1), Third-party contractual liability, Homeowner’s exemption

SANTIBANEZ V. NORTH SHORE LAND ALLIANCE, INC.

197 A.D.3d 1123 September 1, 2021

The plaintiff was injured when he fell from a ladder while he was trying to remove sheet metal covering a chimney that was preventing the ventilation of smoke. A defendant contractor had directed a subcontractor to seal the chimney without alerting the other contractors that the fireplace at issue was rendered inoperable due to the inability to ventilate smoke. The Second Department reversed the lower court’s decision granting summary judgment to the contractor and held that there were issues of fact as to whether it launched a force or instrument of harm such that it could be said to have assumed a duty of care to the plaintiff. The court also held that the contractor failed to establish prima facie that the plaintiff’s act of climbing the ladder to remove the sheet metal was so extraordinary, not foreseeable, or independent of their conduct as to constitute a superseding act to break the causal nexus and establish their conduct was not a substantial factor in causing the accident. The court further held that the defendant homeowners established that they did not exercise any authority to supervise or control the performance of the plaintiff’s work or of any contractor on the project. Thus, the homeowner’s exemption shielded them from liability.

PRACTICE NOTE: A contractual obligation, by itself, will generally not give rise to tort liability in favor of a third party unless the contractor assumed a duty of care by failing to exercise reasonable care in the performance of its work and launches a force or instrument of harm. Under the homeowner’s exemption, owners of a one- or two-family dwelling used as a residence are exempt from liability under Labor Law §§240(1) and 241(6) unless they directed or controlled the work being performed.

TOPICS:Labor Law §241(6), Labor Law §200, Labor Law §240(1), Common law negligence, Homeowner’s exemption

KHAN V. KHAN

197 A.D.3d 1165 September 15, 2021

The plaintiff was the administrator of a decedent’s estate. While cleaning the gutters of a

FIRST DEPARTMENT SECOND DEPARTMENT

house owned by the defendant, the decedent was injured falling from the roof allegedly due to slippery moss, and subsequently died. The Second Department held that the homeowner was properly granted summary judgment as to the Labor Law §§ 241(6) and 240(1) claims because he established that he was the owner of a one-family dwelling and did not direct or control the work being performed. The defendant further established entitlement to summary judgment as to Labor Law §200 and common law negligence because he demonstrated that he did not create or have actual or constructive notice of the allegedly dangerous condition.

PRACTICE NOTE: Where a premises condition is at issue, a property owner is liable under Labor Law § 200 when the owner created the dangerous condition causing injury or when the owner failed to remedy a dangerous or defective condition of which he had actual or constructive notice.

TOPICS:Collateral estoppel, Leave to amend pleadings, Workers’ compensation

LENNON V. 56TH AND PARK (NY) OWNER, LLC

199 A.D.3d 64 September 15, 2021

The plaintiff alleged he was injured when the hoist elevator he was riding made multiple and sudden unanticipated rises and drops. He filed a workers’ compensation claim. After a hearing where the plaintiff was represented by counsel and testified, the administrative law judge denied the workers’ compensation claim based on a determination that the alleged accident did not actually happen in any manner related to the claimed injury. The Workers’ Compensation Board affirmed the findings and determination. The plaintiff commenced this action for common law negligence and alleging labor law violations. After the note of issue was filed, the defendants moved to amend their answer to include an affirmative defense of collateral estoppel and upon leave to amend for summary judgment dismissing the complaint based on collateral estoppel. The Second Department upheld the lower court’s decision granting leave to amend the answer to include the affirmative defense of collateral estoppel. The court held that the proposed amended pleading was not palpably insufficient or devoid of merit, did not cause surprise or undue prejudice to the plaintiff, and the lower court did not improvidently exercise its discretion in granting leave to amend. The plaintiff was aware of the workers’ compensation hearing, had personally participated, and was represented by counsel. He was aware of the decision and its potential collateral estoppel impact. The Second Department further held that the defendants were properly awarded summary judgment based on collateral estoppel. It was determined and upheld by the Workers’ Compensation Board that the accident claimed by the plaintiff did not occur or did not occur in the described manner as would cause injury. That finding was material and pivotal to the core viability of any personal injury action brought by the plaintiff for the same incident. Accordingly, the plaintiff was barred by collateral estoppel from arguing the core of his case and summary judgment was properly granted.

PRACTICE NOTE: This issue comes up quite frequently. A practitioner should pay close attention to the workers’ compensation proceeding. A plaintiff’s claim may be barred by the doctrine of collateral estoppel when there is a prior determination from an administrative board involving the same subject matter and that subject matter is material and pivotal to the core viability of the claim.

TOPICS:Labor Law §240(1), Labor Law §241(6), Labor Law §200, Construction manager, Statutory agent, Contractual indemnification

JIN GAK KIM V. KIRCHOFF-CONSIGLI CONSTR. MGT. LLC

197 A.D.3d 1289 September 29, 2021

The plaintiff was injured when he was struck by a piece of falling lumber. The Second Department held that the defendant construction manager was properly denied summary judgment as to the plaintiff’s Labor Law §§ 240(1), 241(6), and 200 claims because it failed to establish that it did not have the ability to control the activity that brought about the plaintiff’s injury or the ability to establish and maintain safety procedures at the worksite at the time of the accident. The court also held that the construction manager defendant was not entitled to summary judgment on its contractual indemnification claim against its subcontractor, the plaintiff’s employer, because it did not eliminate issues of fact as to whether it was free from negligence in the happening of the plaintiff’s accident.

PRACTICE NOTE: A construction manager of a worksite will be deemed a statutory agent of the property owner or general contractor and be subject to liability under Labor Law §§240(1), 241(6), and 200 where the party had the ability to control the work that brought about the plaintiff’s injury. TOPICS:Labor Law §240(1), Safety devices, Falling worker

MASMALAJ V. NEW YORK CITY ECONOMIC DEV. CORP.

197 A.D.3d 1292 September 29, 2021

The plaintiff was a carpenter using a Baker scaffold to install ceiling tracks. He was injured when he attempted to move the scaffold while standing on it and the scaffold toppled over. Afterwards, the plaintiff noticed that one of the wheels was detached. The Second Department upheld the grant of summary judgment as to the plaintiff’s Labor Law § 240(1) claim because he was performing work within the ambit of the statute and his injuries were proximately caused by the absence or inadequacy of a safety device enumerated in the statute. The plaintiff demonstrated that he was directed to work on the scaffold, it was the only scaffold available, he was working without assistance, and that he noticed a wheel was detached after it toppled. An affidavit from his foreman stated that he observed the wheel had become detached and that the wheels were kept in place by wire rather than nuts or bolts.

PRACTICE NOTE: A defendant faces liability under Labor Law §240(1) when a worker is injured as a result of a defendant’s failure to provide adequate safety devices.

TOPICS:Labor Law §241(6), Leave to amend, Safety equipment, Industrial code violation

PALAGUACHI V. IDLEWILD 228TH ST., LLC

197 A.D.3d 1321 September 29, 2021

The plaintiff was installing flooring by applying adhesive while on his knees when his right knee pad that he alleged was broken shifted and caused him to fall and sustain injury. The defendant owner moved for summary judgment dismissing the Labor Law § 241(6) claim. The plaintiff cross moved for leave to amend the bill of particulars to allege violation of Industrial Code 12 NYCRR 23-1.5(c)(3). This industrial code provides that all safety devices and equipment shall be kept in sound and operable condition and shall be immediately repaired, restored or removed from the job site if damaged. The Second Department upheld the lower court’s decision granting the plaintiff leave to amend holding that the amendment did not prejudice the defendants and did not involve new factual allegations or raise new theories of liability.

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The court also held that the defendant owner’s motion for summary judgment was properly denied because it failed to demonstrate that 12 NYCRR 23-1.5(c)(3) was inapplicable or that its alleged violation was not a proximate cause of the plaintiff’s injuries. The records included testimony that floor installers were required to use knee pads and that the plaintiff had told his employer that he needed new kneepads two months prior to the accident.

PRACTICE NOTE: Labor Law § 241(6) imposes upon all general contractors and owners and their agents non-delegable duties to provide workers with proper safety devices and adequate protection.

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

RIVAS-PICHARDO V. 292 FIFTH AVE. HOLDINGS, LLC

198 A.D.3d 826 October 13, 2021

The plaintiff, a laborer, was injured while clearing debris from the bottom of a garbage chute. Another laborer did not hear directions to stop dumping debris down the chute and dumped the contents of a wheelbarrow into the chute. The plaintiff was struck by ricocheting bricks from the wheelbarrow. The Second Department held that the plaintiff was entitled to summary judgment on his Labor Law § 240(1) claim on the grounds that the plaintiff’s injuries were caused by debris descending from a higher floor and ricocheting into the area that the plaintiff was working. Labor Law § 240(1) was implicated because the plaintiff’s injuries were caused by the inadequacy of the chute to protect him from the elevation-related risk of disposal of debris in the chute or the failure to employ other safety devices for removal of the debris. The defendant was not entitled to dismissal of the Labor Law §241(6) claim because it failed to demonstrate that the industrial code sections that the plaintiff alleged violation did not apply to the facts of the case or that they were not a proximate cause of the plaintiff’s injuries. The court also found that the defendant failed to establish that Labor Law §241-a, “Protection of workmen in or at elevator shaftways, hatchways and stairwells,” was inapplicable to the facts or that the alleged violation was not a proximate cause of the plaintiff’s damages.

PRACTICE NOTE: A defendant faces liability under Labor Law § 240(1) when a worker is injured as a result of a defendant’s failure to provide adequate safety devices. TOPICS:Labor Law §241(6), Labor Law §200, Unsafe conditions, Slipping hazards

FONCK V. CITY OF NEW YORK

198 A.D.3d 874 October 20, 2021

The plaintiff, a laborer, was engaged in placing and tying rebar in a grid pattern on top of plastic sheeting. While retrieving his pliers a few feet away, the plaintiff alleges that he fell by tripping over a pipe that was concealed under plastic sheeting in violation of 12 NYCRR 23-1.7(d). The Supreme Court properly concluded that the area where the plaintiff fell did not constitute a passageway as contemplated by 12 NYCRR 23-17(e) (1) and that 12 NYCRR 23-17(e)(2) does not apply to materials that are “intentionally installed and were a ‘permanent and an integral part of what was being constructed.’” However, the Appellate Division found that the defendants failed to establish their prima facie entitlement to summary judgment by not eliminating triable issues of fact as to whether the placement of the subject plastic sheet on top of, as opposed to beneath, the installed pipe was a hazard that was “part of, or inherent in, the work the injured plaintiff was hired to perform.”

PRACTICE NOTE: A “beach” or “sprinkler” area of a pool does not constitute a passageway as contemplated by 12 NYCRR 23-17(e)(1). Similarly, rebar, piping, vapor barriers, and plastic sheeting of an “in-progress” construction site do not constitute “debris” or “scattered” materials under 12 NYCRR 23-17(e)(2) when they have been “intentionally installed and were a ‘permanent and integral part of what is being constructed.’” Additionally, the duty of an owner, general contractor, and their agents to provide employees with a safe place to work does not extend to “hazards that are part of, or inherent in, the very work the employee is to perform or defects the employee is hired to repair.”

TOPICS:Labor Law §240(1), Labor Law §200, Enumerated activity, Demolition, Alterations

HENSEL V. AVIATOR FSC, INC.

198 A.D.3d 884 October 20, 2021

The plaintiff was assisting in loading heavy soccer boards into the back of a box truck where a forklift was being used. The boards had been used to form the walls for an indoor soccer field and were between 6 and 12 feet long, weighing more than 100 pounds each. The plaintiff was standing on the ground next to the forklift when one of the boards slid off the forklift and struck the plaintiff in the head. The Supreme Court correctly concluded that the disassembly and removal of boards from the soccer field was “a partial dismantling of a structure” constituting a “demolition” within the meaning of Labor Law § 240(1). Likewise, that activity changed the configuration of the structure enough to also qualify as an “alteration” within the meaning of Labor Law §240(1). The hauling away of the boards that were removed by the defendant was an act “ancillary” enough to the demolition and alteration such that it is protected under Labor Law § 240(1). Furthermore, a portion of the forklift had been removed so that it could fit through a certain doorway on the premises and that the modification caused the forklift to be without certain safety devices, including “load guides and/or guide rails,” which could have been used to “constrain the boards as they were moved from elevated forks into the truck.” These arguments established, prima facie, the existence of a hazard contemplated under Labor Law §240(1) and that the failure to provide an adequate safety device caused the plaintiff to sustain an injury as a result of that hazard.

PRACTICE NOTE: Falling object liability under Labor Law §240(1) is not limited to cases in which the falling object is in the process of being hoisted or secured, but rather may also be imposed where an object or material that fell causing injury was any “load that required securing for the purposes of the undertaking at the time it fell.”

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

TORRES V. NEW YORK CITY HOUS. AUTH.

199 A.D.3d 852 November 10, 2021

The plaintiff was performing asbestos abatement work when he stepped into a gap between two scaffolds, resulting in a 15 foot fall to the ground. The plaintiff failed to address whether the subject scaffold had rails, possible tie-off points for a harness, or some alternative fall protection. The plaintiff’s motion relied solely upon his Gen. Mun. Law § 50-h hearing testimony, wherein he stated that he “moved [his] foot” to the left, causing him to step off of the scaffold and into an “empty space,” and that “there was nothing there because [he] stepped on it and thought it was something solid.”

PRACTICE NOTE: A fall from a scaffold, in and of itself, does not establish that proper protection was not provided in accordance with Labor Law §240(1).

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TOPICS:Labor Law §240(1), Labor Law §241(6), Labor Law §200

GUAMAN V. 178 CT. ST., LLC

2021 N.Y. Slip Op 06676 December 1, 2021

The plaintiff, a steel worker, fell through an uncovered opening at a stairwell in the unfinished second floor. The plaintiff’s motion for summary judgment under Labor Law §§ 200, 240(1), and 241(6) was denied because he failed to eliminate triable issues of fact as to whether adequate safety devices were provided and the absence thereof was a proximate cause of the subject accident.

PRACTICE NOTE: A plaintiff must establish that there are no triable issues of fact on all elements of the labor law to be successful on a dispositive motion.

TOPICS:Labor Law §240(1), Labor Law §200, Ladder, Contractual indemnification, Common law indemnification

CANDO V. AJAY GEN. CONTR. CO. INC.

2021 N.Y. Slip Op 06831 December 8, 2021

The plaintiff was injured while descending an extension ladder which was placed between the first and second floor of single-family home when the staircase was removed. The plaintiff brought suit based upon the labor law against the owner and general contractor. The general contractor in turn brought a third-party action against the carpentry subcontractor. The plaintiff then brought a second action against the carpentry subcontractor also alleging violations of the labor law. The carpentry subcontractor moved for summary judgment to dismiss the direct action brought against them alleging they were neither an owner nor contractor under the labor law and to dismiss the contractual indemnification and common law indemnification claims brought against them in the third-party action. The court denied summary judgment to them in both actions. The court found issues of fact as to whether the carpentry subcontractor was a statutory agent of the owner or a contractor under the labor law since their contract conveyed many of the rights that a general contractor would customarily have. Their motion on the third-party action was denied because they failed to establish that they were not negligent since there was evidence that they may have set up the ladder and they failed to show that the accident did not “arise out of their negligent act or omission” under the contract.

PRACTICE NOTE: A contractual obligation, on its own, will generally not give rise to tort liability in favor of a third party. Further, a subcontractor may be held liable for negligence, where a violation of Labor Law § 200 exists, where the work it performed created the condition that caused the plaintiff’s injury, even if it did not possess any authority to supervise and control the plaintiff’s work or work area.

TOPICS:Labor law, Covered work, Enumerated activity

SEEM V. PREMIER CAMP CO., LLC

2021 N.Y. Slip Op 07018 December 15, 2021

The plaintiff, a dump truck driver, was transporting approximately 60,000 pounds of gravel to a property owned by the defendants to be used to resurface a parking lot at the property. The plaintiff alleges that he was injured when his truck tipped over while he was raising the bed of the truck to unload the gravel. The gravel allegedly caused the rear tires to pop and resulted in the truck tipping over. The Appellate Division found that the plaintiff was not engaged in the erection, demolition, reparation, alteration, painting, cleaning, or pointing of a building or structure when he was injured and that he was not exposed to any elevationrelated risk that safety devices prescribed by §240(1) would have prevented.

PRACTICE NOTE: The court finds that delivery of materials to a worksite is not considered “covered work” within the meaning of the statute.

TOPICS:Labor Law §240(1), Labor Law §241(6), Labor Law §200, Homeowner’s exemption, Direction, Supervision, Means and methods

VENTER V. CHERKASKY

200 A.D. 3d 392 December 15, 2021

The plaintiff, a painting contractor, was hired by the defendants to paint and refinish cabinets and a kitchen island at their home. An explosion occurred while the plaintiff was applying lacquer thinner to remove paint from the kitchen island. The lower court granted the defendant’s motion to dismiss the plaintiff’s claims, finding that the owners of one- and two-family dwellings are exempt from labor law, unless they directed the plaintiff’s work. The Appellate Division reversed that finding, holding that the defendants failed to establish that they did not direct or control the method and manner of the plaintiff’s work. The court highlighted testimony from the plaintiff stating that the homeowner instructed him as to the manner in which renovation work was to be done. At the time of accident, the plaintiff was applying lacquer thinner to a kitchen island as opposed to sanding off paint as the plaintiff had done to kitchen cabinets on the day prior to the accident. He was doing so because one of the owners directed him to use the product in question, stating that she did not want any more dust at the premises. The court held that the premises’ conditions were at issue, and that the owner did not establish that they lacked actual or constructive notice of the dangerous condition that caused the accident.

PRACTICE NOTE: When defending owners of a one- or two-family residence in claims under the labor law, be sure to demonstrate the absence of any action or omission on the part of the defendants which caused or contributed to the plaintiff’s injuries. Note that any condition with regard to the premises that contributed to the plaintiff’s accident may give rise to a viable cause of action under Labor Law §200.

TOPICS:Labor Law §241(6), Labor Law §200, Routine maintenance, Enumerated activity

TEODORE V. C. W. BROWN, INC.

200 A.D. 3d 999 December 22, 2021

The plaintiff was injured when attempting to replace the ballast of an inoperable light in a building. The plaintiff was standing on a ladder attempting to fix the inoperable light fixture when he lifted the cover of the electrical box and received an electric shock. The court upheld dismissal of the action, finding that the plaintiff’s activities at the time of the incident constituted routine maintenance, as the work involved replacing components that required replacement in the course of normal wear and tear. In so holding, the court found that the plaintiff’s routine activities were not within the ambit of Labor Law §241(6). Finally, the court dismissed the plaintiff’s claims for liability under Labor Law §200, and found that the defendants

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demonstrated that as against each of them there was no evidence that they supervised, directed, or controlled the plaintiff’s work.

PRACTICE NOTE: This case upholds the right of defendants to summary judgment under the labor law where the activity in question constitutes the type of routine maintenance ordinarily performed at the premises, regardless of whether the plaintiff’s injuries arise from a height-related event.