IN THIS ISSUE:
▶ Sole proximate cause decisions
▶ Right to contractual indemnity
▶ Lateral movement of aerial basket
▶ Shifting evidentiary burden
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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 general, please contact Theodore
Jeffrey S. Matty Partner | Manhattan, Raleigh jmatty@goldbergsegalla.com 646.292.8748
Goldberg Segalla Labor Law Update Spring 2023
EDITOR’S NOTE
As an initial matter, New York Courts are open for business without restrictions. While some venues continue to employ virtual conferencing, others are back to full in-person court appearances. At this time, procedures and requirements for individual justices for everything from simple conferences to motion practice and oral argument vary widely, and close attention to part rules is necessary for litigators as the court seems to be taking full advantage of their own nuances.
During this reporting period, The Court of Appeals did not issue any decision on the Labor Law.
In Guaman v. New York City Housing Authority1, the First Department denied the plaintiff’s motion for summary judgement on Labor Law § 240(1) finding that there were issues of fact as to whether the plaintiff was the sole proximate cause of his own injuries. In Guaman, the plaintiff fell while constructing a scaffold. He was tied off to the scaffold while laying down the first plank. He admitted that he unhooked his harness while laying down the second plank, at which time he fell. He claimed the safety line provided for his use was not a sufficient length to accommodate movement around the scaffold. Although the plaintiff testified that only a 5-foot safety line was provided, his employer testified that a 10-foot retractable safety line was also provided. Further, the defendant's expert opined the plaintiff could have remained tied off at the time he fell regardless of which line was used. The conflicting evidence raised issues of fact as to whether the plaintiff had adequate safety devices available, whether he knew that they were available and that he was expected to use them, whether he chose for no good reason to do so, and whether had he not made that choice he would not have been injured. In general, we have observed a pattern of erosion of the employability of the sole proximate cause defense. Here, the court provided an opportunity for the defense to be set before a jury. Contrast the decision in Guaman with Rosa v. 47 East 34th Street2 discussed below.
In Rosa, the decedent suffered severe burns in an electrical explosion that occurred on the roof of a fully occupied apartment building. At the time, the decedent and the building manager went to the electrical room on the roof of the building intending to terminate a main trunk for electricity. The manager left, allegedly instructing the decedent not to perform work until he shut the building main off and purchased rubber insulation from a nearby store. While the manager was gone, the decedent located a ladder and began working on the electrical component while the power was still on. This resulted in an arc electrical explosion that threw the decedent from the ladder. The Supreme Court dismissed the Labor Law §§ 240(1), 241(6) and 200 claims finding the decedent was the sole proximate cause of his injuries. The Appellate Division stretched to find an issue of fact in the record and reinstate the claims. Among other things, the Appellate Division found building owners testified that when work such as this was to be performed notice was to be given to tenants that there would be a power interruption and, since the tenants were not notified, an inference could be made that the plaintiff was going to perform this work without shutting down power. Further, the court allowed a hearsay conversation between the building manager and the decedent’s daughter to be introduced for the first time on appeal, finding that it was an adverse party statement that was admissible. It seems in this case given the severity of the injury the First Department chose to overlook something very obvious. The plaintiff was an electrician by trade who chose to work on the power main for an entire apartment building, not an inexperienced apprentice working on an electrical outlet. At what point will the plaintiff be held accountable for his own actions?
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As always, we hope you find this edition of the Labor Law Update to be a helpful and practical resource. For questions about the topics discussed or feedback on how we can make this publication more useful, please do not hesitate to contact us.
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1 209 A.D.3d 171 1st Dep’t, October 6, 2022
2 208 A.D.3d 1075, 1st Dep’t, September 13, 2022
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THEODORE W. UCINSKI III KELLY A. McGEE Theodore W. Ucinski III Kelly A. McGeeFIRST DEPARTMENT
TOPICS: Labor Law § 241(6), Industrial code violations, Contractual indemnification
RUISECH V. STRUCTURE TONE INC.
208 A.D.3d 412
August 16, 2022
The plaintiff, who was an employee of a subcontractor, was injured while installing a glass wall divider into an aluminum track that had been cut into the cement floor. The plaintiff claims an accumulation of small pebbles caused him to slip as he and other workers were maneuvering the glass into place. The plaintiff did not fall. Rather, his right foot simply slid a few inches. The court upheld the Supreme Court’s dismissal of the plaintiff’s Labor Law § 241(6) claim, finding the pebbles were not a foreign substance which may cause slippery footing within the meaning of 23 NYCRR § 1.7(e)(2). They also found the pebbles were integral to the work.
PRACTICE NOTE: Where the alleged defective condition is integral to the work and not a separate condition, the court will find that it was integral to the work and dismiss the plaintiff’s Labor Law § 241(6) claims.
ownership testified that whenever work such as this was to be performed notice was to be given to tenants that there would be a power interruption and, since the building was never notified, an inference could be made that the plaintiff was going to perform this work without shutting down power. Further, the court allowed a hearsay conversation between the building manager and the decedent’s daughter to be introduced for the first time on appeal finding that it was an adverse party statement that was admissible.
PRACTICE NOTE: Here the Appellate Division really stretched to give the plaintiff’s estate a chance to recover and made inferences that allowed in information that seemed beyond the purview of a usual appeal.
tem had been installed on the roof prior to the plaintiff’s accident. The court upheld a finding that the defendants violated Labor Law § 240(1) and granted the plaintiff summary judgment.
PRACTICE NOTE: To successfully oppose a plaintiff’s motion for summary judgement based upon the Labor Law, the defendants must have clear admissible proof.
TOPICS: Labor Law § 241(6), Passageway, Elevation-related risk
ALVARADO V. SC 142 WEST 24, LLC
209 A.D.3d 422
October 6, 2022
TOPICS: Labor Law § 240(1), Admissible evidence, Secured and hoisted
TINTI V. ALPHA OMEGA BLDG. & CONSULTING CORP.
208 A.D.3d 1120
September 27, 2022
TOPICS: Sole proximate cause, Issues of fact, Admissible evidence, Summary judgment
ROSA V. 47 EAST 34TH STREET
208 A.D.3d 1075
September 13, 2022
The decedent suffered severe burns in an electrical explosion, which occurred on the roof of a fully occupied building. At the time, the decedent needed to terminate a main trunk for electricity that was located in the electrical room on the roof of this luxury apartment building. The building resident manager went to the roof with the decedent, opened the electrical room, and then left, allegedly instructing the decedent not to perform work until he shut the building main off and purchased rubber insulation from a nearby hardware store. While the manager was retrieving the insulation, the decedent located a ladder and began working on the electrical component while the power to the unit was still on. This resulted in an arc electrical explosion, which threw the decedent from the ladder. The Supreme Court dismissed the Labor Law §§ 240(1), 241(6) and 200 claims, finding the decedent was the sole proximate cause of his injuries. The Appellate Division stretched to find an issue of fact in the record and reinstate the claims. Among other things, the Appellate Division found building
The plaintiff was injured when a 10-foot section of a 6-inch diameter hose used to pour concrete fell from 10 feet above him and struck him. A certified incident report indicates the hose had been placed on a wooden guardrail above him, which collapsed due to the weight of the hose. The court held the plaintiff was entitled to summary judgment on Labor Law § 240(1) by submitted admissible evidence that the hose fell and was not adequately secured for the work being performed.
PRACTICE NOTE: This case seems to be a classic example of the application of Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259.
The plaintiff was not entitled to relief under Labor Law § 241(6) for an alleged violation of Industrial Code § 23-1.7 (d), since the “excavation pit” where he slipped and fell was not the type of flooring or passageway contemplated by the Industrial Code. There is testimony that the location where he fell was “no bigger than a hole in the ground with an unfinished muddy bottom.” The plaintiff’s Labor Law § 240 claims were properly dismissed because there was no elevation-related risk. The plaintiff was granted summary judgment under Labor Law § 200 because there was a triable issue of fact as to whether the defendants had constructive notice of a dangerous condition on the premises prior to the plaintiff's accident. The evidence supported that the day prior to the plaintiff's accident there was heavy rain, which created the hazardous muddy condition.
PRACTICE NOTE: In order to make a Labor Law § 240 claim, the plaintiff must prove that the accident was a result of an elevation-related risk.
TOPICS: Labor Law § 240(1), Sufficiency of proof, Fall from height
YOCUM V. UNITED STATES TENNIS ASSN, INC.
208 A.D.3d 1124
September 27, 2022
The plaintiff was injured while working on a sloped roof and fell. The plaintiff moved for summary judgment, claiming there was no appropriate place to tie off on the roof. The defendants submitted unauthenticated documents and “vague testimony” in opposition to the plaintiff’s motion claiming a fall protection sys-
TOPICS:
Labor Law § 240(1), Sole proximate cause
GUAMAN V. NEW YORK CITY HOUSING AUTHORITY
209 A.D.3d 431
October 6, 2022
The plaintiff fell while in the process of constructing a scaffold near the top of a building. He was tied off to the scaffold while laying down the first scaffolding plank. He admitted that he unhooked his harness while laying down the second plank, at which time he fell. He claimed that the safety line provided for his use was not a sufficient length to accommodate his move-
ment around the scaffold. The court found a question of fact as to liability under § 240 as to whether the plaintiff's conduct was the sole proximate cause of his accident. While the plaintiff testified that only a 5-foot safety line was provided, the plaintiff's employer testified that a 10-foot retractable safety line was also provided and adequate for the plaintiff's job. Further, the defendant's expert opined that the plaintiff could have remained tied off at the time that he fell regardless of which safety line was provided. The conflicting evidence raised issues of fact as to whether the plaintiff had adequate safety devices available, whether he knew both that they were available and that he was expected to use them, whether he chose for no good reason to do so, and whether had he not made that choice he would not have been injured.
PRACTICE NOTE: The sole proximate cause defense requires that the plaintiff had adequate safety devices available, and knew both that they were available and that he was expected to use them. The plaintiff chose for no good reason not to use the safety device and the failure to use the device was the cause of the injury.
TOPICS: Falling object, Hoisting
MELENDEZ V. BROWN-UNITED, INC.
209 A.D.3d 437
October 6, 2022
The plaintiff, a laborer, was injured when he was erecting a scaffolding structure at a sporting event that was owned, operated, and managed by the defendants. The plaintiff had been installing a scaffolding pipe vertically on a screw jack. As the plaintiff was walking away, the scaffolding pipe fell and hit him on the head. The defendants were not entitled to summary judgment on the Labor Law § 240 claim because there were questions of fact as to whether the scaffolding pipe that fell on the plaintiff was “a load that required securing for the purpose of the undertaking at the time it fell.”
PRACTICE NOTE: In falling objects cases, the court will look for evidence of whether the object required securing.
TOPICS: Gravity-related risk, Falling object
MOORE
V. URS CORP.
209 A.D.3d 438
October 6, 2022
The plaintiff sustained injuries while stacking plywood sheets that began to slide off the top of the stack. As he stepped towards the stack to stop the loose plywood from falling, he tripped and fell on debris and the plywood sheet fell on top of him. The defendant's motion to dismiss the plaintiff's Labor Law claims was denied in that the defendant could not establish that the plaintiff was not exposed to a gravity-related risk contemplated by Labor Law § 240. There were also factual issues that precluded dismissal under Labor Law § 241(6) as to whether the location where the plaintiff was stacking the plywood for storage was a “working area” as defined by 12 NYCRR § 23-1.7 (e)(2).
PRACTICE NOTE: In falling objects cases, the court will look for evidence of the plaintiff’s exposure to a gravity-related risk.
TOPICS: Falling object, Gravity-related risk, Safety device
LINARES V. CITY OF NEW YORK
209 A.D.3d 468
October 11, 2022
The plaintiff was assigned to disassemble a sidewalk bridge and was standing on the ground floor to receive wooden planks and metal beams being removed from the bridge and handed to him by a coworker who was standing on the bridge. While holding a wooden plank that he had received from the coworker, the plaintiff saw a 12-foot metal beam that had been resting on top of another piece of metal on the bridge. It fell a distance of about 20 feet, striking the plaintiff and causing him to fall to the ground. The plaintiff made a prima facie showing that his accident was proximately caused by the lack of any safety devices to secure the beam as required by Labor Law § 240.
PRACTICE NOTE: In falling objects cases, the court will look for evidence of the plaintiff’s exposure to a gravity-related risk and the existence of a proper safety device.
TOPICS: Labor Law § 240(1), Safety device, Covered work
GONZALEZ V. BROADWAY 371, LLC
209 A.D.3d 526
October 18, 2022
The plaintiff fell from a plank that did not have rails or netting. He fell 3 to 4 feet from a second story balcony, which triggered the protections of Labor Law § 240(1). The court stated that the plaintiff was using the plank to cross a gap between a sidewalk shed and the balcony rather than standing upon it to perform work. This does not render this statute inapplicable.
PRACTICE NOTE: The court will look to see if the plaintiff was provided with a safety device that is appropriate for his work when determining a Labor Law case.
the scaffolding pins into place before use. The defendant, in supporting its argument, cited the plaintiff's Workers’ Compensation Form C-2, which stated: "it appeared that the pins were not locked into place." The court found that the plaintiff had not written or contributed to Form C-2 and that the author of Form C-2 had not witnessed the incident. Additionally, the court found that even if the plaintiff was at fault regarding the pins, it would only be comparative negligence, which is not a defense to Labor Law § 240(1). Further, the court denied the defendant's recalcitrant worker defense because there was no evidence that the plaintiff had been instructed specifically to put the pins in place or instructed not to ride the scaffolding while it was being moved.
PRACTICE NOTE: A defendant cannot rely on a recalcitrant worker defense concerning Labor Law § 240(1) when the plaintiff had not been given specific safety instructions.
TOPICS: Labor Law § 240(1), Ramp, Crane CORRETO V. ONEX REAL ESTATE PARTNERS
209 A.D. 3d 483
October 13, 2022
The plaintiff brought his claims under Labor Law § 240(1), alleging that his foot was crushed by a spyder crane that had fallen off a transportation ramp. The defendant argued against summary judgment, claiming that the plaintiff was injured due to the negligence of the plaintiff's supervisor's operation of the crane. The court granted summary judgment in the plaintiff's favor, finding that the ramp was inadequate for transporting the crane and that the plaintiff's employer's negligence was not a valid defense to Labor Law § 240(1).
PRACTICE NOTE: A defendant cannot claim a defense under Labor Law § 240(1) due to an employer's negligence that resulted in the plaintiff's injury.
TOPICS: Labor Law § 240(1), Recalcitrant worker, Proximate cause
PIROZZO V. LAIGHT ST. FEE OWNER LLC
209 A.D. 3d 596
October 25, 2022
The plaintiff alleges violation of Labor Law § 240(1) when scaffolding the plaintiff was working on collapsed, causing him injury. The defendant argued that the plaintiff was the proximate cause of his injuries because he failed to lock
TOPICS: Labor Law § 240(1), Scaffold
SANTOS V. MONADNOCK CONSTR. INC.
209 A.D. 3d 598
October 25, 2022
The plaintiff alleged injury under Labor Law § 240(1) when he fell through a scaffolding frame, hitting the ground. The defendant tried to introduce an expert's affidavit claiming that
the plaintiff's injury could not have occurred the way he stated based on the expert's examination of scaffolding. However, the plaintiff was able to successfully argue that the defendant could not establish that the scaffolding the expert examined was the same scaffolding that the plaintiff had fallen through. The court found that even though the plaintiff was the only witness to his accident, the plaintiff was still entitled to summary judgment in his favor. Additionally, the plaintiff was not required to identify any prior problems with the scaffold, nor did the court find that the plaintiff standing on the scaffold for an extended period of time dispositive.
PRACTICE NOTE: In attempting to defeat a plaintiff's motion for summary judgment under Labor Law § 240(1), no question of fact can exist even when a plaintiff is the only witness to his injury.
TOPICS: Labor Law § 240(1), Labor Law § 241(6), Elevation differential
POLONIA V. 14 SUTTON TENANTS CORP.
210 A.D. 3d 417
November 1, 2022
TOPICS: Labor Law § 240(1), Labor Law § 241(6), Premature motion for summary judgment
CONTRERAS V. MDG DESIGN 7 CONSTR. LLC
175 N.Y.S.3d 727
November 1, 2022
TOPICS: Labor Law § 200, Scaffold
SINAI V. LUNA PARK HOUS. CORP.
209 A.D.3d 600
October 25, 2022
The plaintiff alleged injury while working on mechanical scaffolding regarding a project to restore the façade of the defendant's building. While the plaintiff was on the scaffolding, a co-worker moved the scaffolding tower, crushing the plaintiff's foot. The plaintiff argued that his injury could have been prevented had there been a mesh enclosure on the scaffolding tower. The defendant moved for summary judgment on the plaintiff's Labor Law § 200 claim but was denied. The court believed there was an issue of fact regarding the unguarded scaffolding. Specifically, there existed a question of fact as to whether the unguarded scaffolding tower was a "dangerous and defective condition of the workplace" and whether the defendant had created or had constructive knowledge of the alleged defective condition. The court also denied the defendant's "integralto-work" defense because the defendant could not establish that it would be impractical to install the protective enclosure.
PRACTICE NOTE: Under Labor Law § 200, a defendant can establish an integral-to-work defense by showing that eliminating the alleged defective condition would be impractical and contrary to the work at hand.
The plaintiff was injured while walking on a sidewalk bridge erected at a construction site. There were two portions of the bridge and, according to the plaintiff, there was a two-foot height differential between the two segments. The plaintiff tripped on a wooden plank that was part of the sidewalk bridge flooring. There was no dispute that the plank was properly installed and was not defective. In dismissing the plaintiff’s § 240(1) claim, the court found that the plaintiff’s fall was not caused by the height differential between the two portions of the bridge, as he did not fall into the gap between the two. Rather, his fall was caused by tripping over the properly installed plank. The court also dismissed the plaintiff’s § 200 claim as there was no evidence that the defendants created or had actual or constructive notice of the condition, as well as the plaintiff’s § 241(6) claim premised on Industrial Code sections 23-1.8(b)(2) and 23-5.1(j)(1) as those sections apply to the “outside edge,” “the ends,” and “open sides” of sidewalk sheds and scaffolds, not to the interior sections of a sidewalk bridge.
PRACTICE NOTE: Labor Law § 240(1) is not applicable where the plaintiff’s injuries are not the direct consequence of a failure to provide adequate protection against a risk from a physically significant elevation differential.
After the plaintiff was injured following a ceiling collapse, the plaintiff moved for summary judgment on his §§ 240(1) and 241(6) claims. In denying the plaintiff’s motion as premature, the court found that limited document exchange and no party depositions precluded a determination of dispositive issues, including how the accident occurred, whether the collapse of the ceiling was foreseeable, and whether the absence of a safety device was the proximate cause of the plaintiff’s injuries.
PRACTICE NOTE: Parties are entitled to full discovery on dispositive Labor Law issues prior to a determination of dispositive motions.
TOPICS: Labor Law § 240(1), Labor Law § 241(6), Gang box, Safety device, Comparative negligence
CONTRONEO V. VAN WAGNER SIGN ERECTORS, LLC
177 N.Y.S.3d 40
November 3, 2022
TOPICS: Labor Law § 240(1), Ladder, Cleaning, Routine maintenance
CASTILLO V. WEST END TOWERS LLC
175 N.Y.S. 3d 726
November 1, 2022
The plaintiff sustained injuries when he fell off a ladder while cleaning windows inside a commercial space. In dismissing the plaintiff’s § 240(1) claim, the court held that the plaintiff was not engaged in “cleaning” within the meaning of § 240(1), but rather routine maintenance.
PRACTICE NOTE: Routine maintenance is not a protected activity under Labor Law § 240(1).
The plaintiff was injured when the lid to a gang box, which was missing struts, fell on him. In dismissing the plaintiff’s § 240(1) claim, the court found that the gang box lid was not a material that required hoisting or securing. The struts did not constitute a safety device contemplated by the statute because they were not meant to lessen a gravity-related risk. In granting the plaintiff’s § 241(6) claim, however, the court found that the struts were safety devices to ensure that the lid opened slowly and stayed open. The plaintiff was not required to show freedom from comparative negligence in order to be entitled to summary judgment on liability.
PRACTICE NOTE: Plaintiffs are not required to show freedom from comparative negligence in order to be entitled to summary judgment on liability.
TOPICS:
Labor Law § 241(6), Offsite storage area, Offsite accident, Owner
MUSSE V. TRIBOROUGH BRIDGE & TUNNEL AUTH.
210 A.D.3d 434
November 3, 2022
The plaintiff, a welder who was working on materials for installation on the Verrazzano Narrows Bridge, was injured when she was moving a scaffold offsite at the Brooklyn Marine Terminal, owned by PANYNJ and leased to non-party, RHCT. The leg of the scaffold became caught in a depression on the floor, and when the plaintiff attempted to pull it free, she slipped on debris, oil, and grease on the floor. The plaintiff’s employer hired RHCT to offload and store construction materials at the terminal. The court found that despite the lease and operating agreement wherein PANYNJ transferred control and responsibility for maintenance to RHCT, PANYNJ was nevertheless the owner of the property for purposes of Labor Law § 241(6). RHCT was required to provide PANYNJ with monthly profit and loss reports and obtain consent to sublicense any portion of the property, and further, PANYNJ received a port security charge, among other things; all of which created a sufficient nexus between PANYNJ and the construction project. The court further found that the plaintiff’s work, i.e., grinding bevels on the deck panels to be installed on the bridge, fell within the purview of § 241(6) because the protection extends to areas where materials or equipment are being prepared to be used in construction.
PRACTICE NOTE: An owner of premises used as an offsite storage area or yard where an accident occurs will be considered an “owner” for purposes of the Labor Law when there is a sufficient nexus between the offsite storage area and the construction project.
TOPICS: Labor Law § 240(1), Scaffold, Enumerated parties
OTERO V. 635 OWNER LLC
210 A.D.3d 435
November 3, 2022
The plaintiff was injured when a Baker scaffold he was standing on overturned and caused him to fall. The court granted the plaintiff summary judgment as to liability for his Labor Law
§ 240(1) claim against the owner and general contractor. The court then reversed the trial court, finding that the plaintiff was entitled to summary judgment as to the Labor Law § 240(1) claim against the lessor of the premises. In doing so, the court noted that the lessor may still be held liable as an owner under the statute because it contracted for the construction work being performed at the time of the plaintiff's accident. The court then dismissed the plaintiff's Labor Law §§ 240(1) and 200 claims against the subcontractor, finding that there was no evidence that it had been delegated the authority to supervise or control the work that resulted in the plaintiff's injury. Because the subcontractor was found to have no statutory liability and there was no evidence of its negligence, the court then dismissed the owner and general contractor's cross-claims and thirdparty claims for common law indemnification and contribution against it.
PRACTICE NOTE: In granting summary judgment as to Labor Law § 240(1) against the owner and general contractor, the evidence established that the plaintiff was not provided with an adequate safety device to perform his work. Therefore, any negligence on his part amounted to, at most, comparative negligence, which is not a defense to Labor Law § 240(1).
TOPICS: Labor Law § 240(1), Falling object
FUENTES V. YJL BROADWAY HOTEL, LLC
210 A.D.3d 552
November 22, 2022
The plaintiff was injured when a beam fell on top of him as he was securing a scaffold. The court granted the plaintiff summary judgment on his claim for Labor Law § 240(1). The unrebutted affidavit of the plaintiff’s expert concluded that the beam was not properly secured. This established the plaintiff’s entitlement to summary judgment on liability.
PRACTICE NOTE: In granting summary judgment to the plaintiff, the court noted that the plaintiff’s inability to explain how the beam fell on top of him did not preclude summary judgment in his favor.
TOPICS: Labor Law § 240(1), Recalcitrant worker, Sole proximate cause
MARTINEZ V. KINGSTON 541, LLC
210A.D.3d 556
November 22, 2022
TOPICS: Labor Law § 240(1), Enumerated activity
DUQUE V. 50 CLINTON PROP. OWNER LLC
210 A.D.3d 469
November 10, 2022
The plaintiff was injured when a refrigerator that she was cleaning fell on top of her. At the time of her accident, the plaintiff was employed by a cleaning company hired by the owner of the property to clean newly constructed apartments before they were turned over to the tenants. It was undisputed that the plaintiff played no role in the construction. The court dismissed the plaintiff's Labor Law § 240(1) claim, finding that the plaintiff was not engaging in “cleaning” at the time of her accident.
PRACTICE NOTE: Because the court found that the plaintiff was not engaged in an enumerated activity at the time of her accident, the court did not address whether the falling refrigerator would have otherwise established liability under Labor Law § 240(1).
The plaintiff was injured when he fell after stepping on a wooden floor joist. Although the plaintiff was wearing a harness at the time of the accident, he was not tied off. According to the plaintiff, there was no place near the accident location where he could tie off his harness. The court granted the plaintiff partial summary judgment on the issue of liability on his claim for Labor Law § 240(1). In doing so, the court noted that the defendants failed to raise an issue of fact as to whether the plaintiff was either a recalcitrant worker or the sole proximate cause of his injury. The defendants could not refute the plaintiff's testimony that there was no place for him to tie off his harness and that his work was not stationary, which prevented him from being tied off. The evidence also established that at the time of his accident, the plaintiff was following the directions of his supervisors to walk on the joist and not move the surrounding plywood.
PRACTICE NOTE: In granting the plaintiff summary judgment, the court noted that even if the plaintiff was partially at fault for failing to tie off his harness, his comparative negligence is not a defense to his Labor Law § 240(1) claim.
TOPICS: Labor Law § 200, Labor Law § 240(1), Labor Law § 241(6), Industrial code violations
WIDDECOMBE V. CONSOLIDATED EDISON CO. OF N.Y., INC.
2022 NY Slip Op 06897
December 6, 2022
The plaintiff was injured when, while standing up in a boiler room, he was struck on the back of the neck by a plywood board affixed to the top of the entranceway. In reversing the trial court's decision, the Appellate Division denied summary judgment to the plaintiff on his Labor Law § 200 and common law negligence claims. The court found issues of fact as to whether the plywood board that caused the plaintiff's injury was open and obvious and whether it was inherently dangerous. The court then granted summary judgment to the defendants on the plaintiff's Labor Law § 240(1) claim, finding that plaintiff's accident did not implicate an elevation-related risk as contemplated by the statute. The court also dismissed the plaintiff's Labor Law § 241(6) claim.
PRACTICE NOTE: The plaintiff's Labor Law § 241(6) claim was predicated upon an alleged violation of Industrial Code § 23-1.7 (e)(1) requiring that sharp projections that could cut or puncture any person must be removed or covered. The court noted that the plywood board at issue could not be considered a sharp projection that could cut or puncture, and therefore found the provision to be inapplicable.
TOPICS: Labor Law § 240(1), A-frame ladder, Unsecured ladder
CASTILLO V. TRM CONSTR. 626 LLC
2022 Slip Op 06886
December 6, 2022
The plaintiff was injured when he fell from a closed A-frame ladder when he was covering windows with plastic to prepare for painting the room he was within. The plaintiff claimed the room had large boxes within it and other
obstructions which prevented him from opening the ladder, and that he was forced to set it up in this manner. The court granted the plaintiff summary judgment on his Labor Law § 240(1) claim specifically noting this section applies where conditions at the work place make it impossible for the worker to place the ladder in a secured open position.
PRACTICE NOTE: Even though a plaintiff may have set his ladder up improperly, the court will allow them to recover where conditions at the worksite dictate their actions.
TOPICS: Contractual indemnification
MOGROVEJO V. GH HOUS. DEV. FUND CO., INC.
207 A.D.3d 461
July 6, 2022
The plaintiff was employed by a framing subsubcontractor and was injured when he fell 15 feet from an unsecured beam. He asserted Labor Law § 240(1) claims against the property owner, its nominee, and the general contractor. Those defendants, in turn, asserted contractual indemnity claims against the framing subcontractor that had sub-subcontracted the work to the plaintiff’s employer. The Appellate Division noted that the right to contractual indemnification depends upon the specific language in the contract, and that the right to indemnity will not lie unless it can be clearly implied from the language and purpose of the contract, and the surrounding circumstances. The party seeking contractual indemnity in connection with a construction contract must also prove itself to be free of negligence because General Obliga-
tions Law § 5-322.1 prohibits a negligent party from receiving contractual indemnity. The court observed that the indemnity term required the framing sub-contractor to indemnify for claims arising, in whole or in part, from the acts and omissions of, inter alia, the sub-contractor or its sub-subcontractors (i.e. the plaintiff’s employer). Accordingly, the acts and omissions of the plaintiff’s employer triggered the indemnity term as against the framing sub-contractor. The court also found that the owner and general contractor were not negligent since they did not have authority to supervise or control the plaintiff’s work. The general contractor’s duties of oversight to ensure compliance with safety regulations were insufficient to support a finding of its negligence. Therefore, the defendants were found entitled to contractual indemnity from the framing sub-contractor.
PRACTICE NOTE: The right to contractual indemnity is not the same in all cases. It will depend upon the specific contract terms, which may be very broad or narrow in defining the circumstances giving rise to indemnity, as
well as the parties whose acts and omissions may trigger indemnity. Additionally, a general contractor’s general oversight to ensure compliance with safety requirements, by itself, is insufficient to defeat its entitlement to full contractual indemnity.
TOPICS: Labor Law § 240(1); Contractual indemnification
RODRIGUEZ V. WATERFRONT PLAZA, LLC
207 A.D.3d 489
July 6, 2022
The plaintiff, a construction laborer, was injured in the course of trying to raise a 20-foot long metal beam to the third floor of a partially constructed building. The beam was to be raised by use of a rope tied around the beam as it stood vertically. The plaintiff’s co-worker asked that he step backward, resulting in the plaintiff falling into an unprotected 15-foot deep opening but he was able to hold onto the sides of the opening, so he did not fall to the ground. However, in the course of falling, he let go of the beam, which hit him on the head. The plaintiff was granted summary judgment on his Labor Law § 240(1) claims against the owner and general contractor because the accident was proximately caused by the failure to provide appropriate safety devices to protect against the gravity-related hazards presented by the opening in the floor and the unsecured metal beam. The court denied the owner’s motion for contractual indemnity because there was a triable issue of fact as to its negligence based upon the plaintiff’s testimony that his work was being supervised by the owner on the accident date.
PRACTICE NOTE: Although a property owner may be an indemnitee under the terms of a construction contract, its active participation in the work may impede a finding that it is entitled to contractual indemnity as a matter of law.
TOPICS: Labor Law § 200, Labor Law § 240(1), Labor Law § 241(6)
JOHNSEN V. STATE OF NEW YORK
207 A.D.3d 530
July 13, 2022
The plaintiff was working in the basket of a man-lift beneath the Gowanas Expressway as part of the expressway’s rehabilitation proj-
ect. A passing tractor-trailer struck the basket, causing it to ricochet back and forth, injuring the plaintiff. The plaintiff did not fall from the basket. The court found that, for purposes of Labor Law § 240(1) liability, it was irrelevant that the plaintiff did not fall from the basket; the plaintiff need only show that the harm directly flowed from the application of gravity to her person. The court also found that the defendant was subject to Labor Law § 200 liability because it failed to demonstrate that it lacked authority to control work-zone traffic control devices. If the defendant had that authority, it would be potentially liable for failing to provide a safe workplace. Finally, the court found that the Labor Law § 241(6) claim predicated upon Industrial Code § 23-1.29(a) was properly dismissed because the defendant demonstrated compliance with the requirement to fence or barricade the work area to direct vehicular traffic away from it.
PRACTICE NOTE: The court’s discussion as to Labor Law § 240(1) suggests that it may have omitted certain underlying facts. Prior case law held that lateral movements do not support Labor Law § 240(1) liability. Here, the court spoke of the aerial basket “ricocheting” – which suggests lateral movement – rather than the basket dropping or otherwise moving in a downward direction that would implicate the effects of gravity. If, however, the basket did not move in a downward direction and only moved laterally, this decision may be viewed as a departure from prior case law.
the defendants liable based upon violations of Industrial Code §§ 23-1.7(d) and 23-1.21(b)(4). The former code section prohibits allowing laborers to work on slippery surfaces (including water-covered surfaces), and the latter code section prohibits the use of slippery surfaces as ladder footings.
PRACTICE NOTE: A laborer need not actually fall from a ladder to the ground for Labor Law § 240(1) liability to attach. Injuries occurring as a consequence of attempting to avoid a fall can also result in liability under the statute. Additionally, a water-covered surface can constitute a “slippery” surface under Industrial Code §§ 23-1.7(d) and 23-1.21(b)(4).
PRACTICE NOTE: A plaintiff’s failure to abide an instruction to refrain from using unsafe equipment or to stay out of a particular area does not support a finding that the plaintiff was the sole proximate cause of his injuries. The plaintiff’s failure to follow these instructions only constitutes comparative fault, which is not a defense to a Labor Law § 240(1) claim. In contrast, a plaintiff’s failure to abide an instruction to use safe and available equipment supports the defense that the plaintiff was the sole proximate cause of his injuries.
TOPICS: Labor Law § 240, Gravity related, Sole proximate cause
MORALES V. 50 N. FIRST PARTNERS, LLC
208 A.D.3D 475, 172 N.Y.S. 3D 480
TOPICS: Labor Law § 240(1), Labor Law § 200, Sole proximate cause, Common law negligence, Contractual indemnification, Common law indemnification
ZONG WANG YANG V. CITY OF NEW YORK
207 A.D.3d 791
July 27, 2022
TOPICS: Labor Law § 240(1), Labor Law § 241(6), Industrial Code §§ 23-1.7(d) and 23-1.21(b)(4), Slippery surfaces, Ladder
ENNIS
V.
NOBLE CONSTR. GROUP, LLC
207 A.D.3d 703
July 27, 2022
The plaintiff was a construction laborer who was injured while attempting to avoid a fall from a ladder that was placed on a wet concrete floor. The plaintiff asserted Labor Law §§ 240(1) and 241(6) claims against the property owner and general contractor. The Appellate Division granted the plaintiff’s motion on his Labor Law § 240(1) claim because the statute may apply in circumstances where a laborer is injured as a result of attempting to prevent his or her fall from a ladder. Turning to the Labor Law § 241(6) claim, the court found
The plaintiff, a fire alarm system installer, was injured when he stepped onto aluminum planks over a shaft opening on the 16th floor of a building under construction. The planks gave way, causing the plaintiff to fall to a platform one floor below. The plaintiff alleged Labor Law §§ 200, 240(1) and 241(6) claims against the property owners, general contractor, and the company that constructed the shaft. Evidence was presented that the plaintiff’s foreman and subforeman instructed him not to enter the shaft, and so the defendants argued that the plaintiff was the sole proximate cause of his injuries. The court found that the plaintiff was entitled to summary judgment on his Labor Law § 240(1) claim because his injuries resulted from the failure of the planks that spanned the open shaft. The court rejected the defendant’s sole proximate cause argument because neither the instruction to avoid using unsafe equipment nor an instruction to avoid engaging in unsafe practices is the equivalent of a safety device. Meaning, that the laborer’s failure to comply with the instruction is not the equivalent of refusing to use available, safe, and appropriate equipment. The court said that the laborer’s failure to follow instructions to stay out of an area is tantamount to comparative negligence, which is not a defense to a Labor Law § 240(1) claim.
August 3, 2022
The plaintiff was injured when he was installing a stacked washer and dryer unit at the property. The power cable for the unit was resting on top of the dryer, which was out of reach, and he stood on an inverted bucket to reach the cable. The bucket slipped out from under him and he fell. The Second Department affirmed the trial court’s decision that a ladder was not necessary for the plaintiff to do his work and he was the sole proximate cause of his injuries because his conduct unnecessarily exposed him to an elevation-related risk. The court also determined that the defendants did not have authority to supervise or control the performance of the plaintiff’s work and the plaintiff’s accident did not result from an allegedly defective condition present at the worksite.
PRACTICE NOTE: A sole proximate cause defense should be asserted in Labor Law § 240(1) claims when the plaintiff’s conduct exposed him/her to an elevation-related risk. In Labor Law § 200 claims, a plaintiff must prove that: (1) defendants had authority to supervise or control the performance of his/her work; and/or (2) his/her accident was caused by a defective condition over which defendants had authority, supervision, and/or control.
TOPICS: Labor Law § 200, Authority, Control, Labor Law § 241(6), Contractual indemnification, Common law indemnification
MURPHY V. 80 PINE, LLC
208 A.D.3D 492, 173 N.Y.S.3D 552
August 3, 2022
The plaintiff was installing office partitions and furniture. While moving tools and materials, he tripped over a “stub up” (portion of electrical conduit and metal bracing) protruding from the floor and fell. The Second Department partially reversed the trial court and determined that the owner of the premises and general contractor for the project had mere general supervisory authority over the project and could not be subjected to liability based upon unsafe work methods. The court also determined that the contractor had no workforce of its own and did not supervise the subcontractor’s work. The court further determined that the subcontractor failed to demonstrate that its employees did not remove the safety markings and that it lacked supervisory authority or control over the replacement of any markings that had been removed. With regard to the § 241(6) claims, the court found issues of fact as to: 12 NYCRR § 23-1.7(e)(1) and 12 NYCRR § 23-1.7(e)(2) regarding whether it was necessary that the stub ups be unmarked or that the safety markings would have interfered with the work; and, 12 NYCRR § 23-1.30 regarding the quality of lighting and whether it was sufficient for safe working conditions.
PRACTICE NOTE: In Labor Law § 200 claims, a plaintiff must prove that defendants had authority to supervise or control the performance of his/her work. Because there were issues of fact regarding the Industrial Code violations relating to the necessity to have the stub ups unmarked and the quality of lighting, the court denied all defendants’ motions under Labor Law § 241(6), except for the owner, general contractor, and contractor.
TOPICS: Fall from height, Labor Law § 240(1), Labor Law § 241(6), Labor Law § 200, Authority, Control
FLORES V. CRESCENT BEACH CLUB, LLC
208 A.D.3D 560
August 10, 2022
The plaintiff was standing on top of a pergola and cut a piece of the pergola for demolition when the piece that he was standing on gave way and he fell to the ground. The Second Department partially affirmed and partially reversed the trial
court and determined that the general contractor failed to establish that it was not a general contractor or agent of the owner when the accident occurred because the general contractor:
(1) was involved with the hiring of the plaintiff’s employer; (2) provided some oversight on the job; (3) provided some direction to the workers; and, (4) was present at the time of the accident. The court determined that 12 NYCRR § 23-3.3(c), which mandated continuing inspections during hand demolition operations to detect hazards resulting from weakened or deteriorated floors or walls or from loosened material, was inapplicable. The court also determined that the hazard arose from the plaintiff’s actual performance of the demolition work itself, and not structural instability caused by the progress of the demolition. The court further determined that the general contractor did not possess the authority to supervise or control the means and methods of the plaintiff’s work.
PRACTICE NOTE: In Labor Law § 240(1) claims, a contractor is subject to liability when it is responsible for coordinating and supervising the project and has the power to enforce safety standards and hire responsible contractors. In Labor Law § 241(6) claims, the claimant must establish the applicability of the alleged Industrial Code violation as a predicate for liability. In Labor Law § 200 claims, a plaintiff must prove that the defendants had authority to supervise or control the performance of his/ her work.
PRACTICE NOTE: When evaluating a contractual indemnification claim, the triggering language is critical. The ability to establish an accident “arises out of” a contractor’s work is a lighter burden than where the triggering language requires an accident to “arise out of the negligence” of a contractor. A party cannot obtain common law indemnification unless it has been held to be vicariously liable without proof of any negligence or actual supervision on its own part.
TOPICS: Labor Law § 240(1), Homeowner’s exemption, Gravity-related risk
PARRINO V. RAUERT
208 A.D.3d 672
August 17, 2022
TOPICS: Contractual indemnification, Common law indemnification
KELLER V. RIPPOWAM CISQUA SCH.
208 A.D.3D 654
August 17, 2022
The plaintiff fell from a ladder while working at a job site. The Second Department affirmed the trial court and determined that the subcontractor was not entitled to summary judgment dismissing the general contractor’s third-party complaint for contractual indemnification because the subcontractor failed to establish that the plaintiff’s injuries were not caused by a ladder that it owned or furnished or that the plaintiff’s accident did not arise out of its work. The court also determined that the subcontractor was not entitled to common law indemnification or contribution because it failed to establish that it was not negligent or that it did not owe a duty of reasonable care to the plaintiff.
The plaintiff, while working at a single-family residence owned by the defendant, was injured when an unsecured load of 20 panels of sheetrock stored on the porch of the property toppled and pinned him against a wall. The defendant successfully moved for summary judgment on the plaintiff’s § 240(1) claims, but his motion was denied on the § 241(6) claims. On appeal, the Second Department affirmed the dismissal of the plaintiff’s § 240(1) claims finding that there was not an inherent risk in the relative elevation at which materials or loads must be positioned or secured, and that the plaintiff’s expert affidavit was speculative and conclusory with regard to this issue. The court further affirmed the denial of the defendant’s motion with regard to the plaintiff’s § 241(6) claims, as questions of fact remained as to whether the renovation work was related to its residential use.
PRACTICE NOTE: Not every falling object injury entitles a plaintiff to the unique protections of the Labor Law, and it is critical to appropriately prepare witnesses to testify as to key legal elements of a Labor Law defense.
TOPICS: Labor Law § 241(6), Slipping hazards, Summary judgment, Evidence
SONG V. CA PLAZA, LLC
208 A.D.3d 760
August 24, 2022
The plaintiff, a carpenter, was allegedly injured when he slipped on a patch of ice on the floor of the open-air construction site, and asserted
claims under § 241(6) based upon the defendants’ failure to protect against slipping hazards as required by Section 23-1.7(d) of the Industrial Code. The defendants’ submission of an untranslated note handwritten in Chinese and the uncertified records of his acupuncturist asserting that the plaintiff injured his back while lifting a heavy object were not evidentiary proof in admissible form sufficient to raise a question of fact as each lacked an appropriate foundation for admissibility.
PRACTICE NOTE: It is critical to provide appropriate evidentiary foundations for documents and information submitted in connection with dispositive motion practice.
TOPICS: Labor Law § 240(1), Gravity-related risk, Questions of fact
LIMA V. HY 38 OWNER, LLC
208 A.D.3d 1181
September 14, 2022
The plaintiff was allegedly injured when he was struck by a piece of caisson pipe that a co-worker was cutting with a blow torch. The Second Department affirmed the denial of the plaintiff’s motion and the defendants’ cross-motion for summary judgment on the § 240(1) claims, as triable issues of fact existed as to how the accident occurred, including whether the plaintiff’s injuries resulted from the type of hazard contemplated by the Labor Law, or the sudden and unexpected release in tension of a strap, which would not qualify as a gravity-related injury.
tively created the defect or dangerous condition at issue. Because the plaintiff’s expert affidavit on the issue of creation was speculative and conclusory, and therefore not supported by the record, the Second Department reversed and granted the city’s motion.
PRACTICE NOTE: The Second Department’s decision overturned a long line of cases where defendants were affirmatively required to disprove the plaintiff’s allegations that exceptions to liability rules applied, clarifying that once a complete defense to liability is established on a motion for summary judgment, the evidentiary burden shifts to the plaintiff to affirmatively establish – not merely allege –the application of any statutory or jurisprudential exception.
TOPICS: Labor Law § 240(1), Elevation-related risk, Sole proximate cause
THORPE V. ONE PAGE PARK, LLC
208 A.D.3d 818
August 24, 2022
The plaintiff, an employee of a non-party staffing agency, was injured while working for an excavation contractor and placing stakes and caution tape around an open pit, when the ground beneath his feet gave way causing him to fall into the 14- to 16-foot deep pit. Although the defendants’ motion for summary judgment on plaintiff’s § 240(1) claims was originally granted, on appeal the Second Department reversed the order finding that the risk of falling into a 16-foot pit on an excavation site is a type of elevation-related risk within the purview of § 240(1), and that the defendants failed to establish that the plaintiff’s actions of standing within five feet of the edge of the pit were the sole proximate cause of his injuries. The defendants further failed to establish that the installation of a protective device would have been contrary to the objectives of the work.
PRACTICE NOTE: When defending on recalcitrant worker/sole proximate cause grounds, it is essential to have consistent deposition testimony establishing that clear and specific directives were issued to the worker to refrain from discrete activities at the worksite.
PRACTICE NOTE: Practitioners must be aware of the limitations of § 240(1) liability for gravityrelated risks, and attack claims where alternative versions of events exist that potentially take the injury outside the purview of § 240(1).
TOPICS: Notice, Defective condition, Municipal liability, Burden-shifting standards, Labor Law
§ 241(6)
SMITH V. CITY OF NEW YORK
210 A.D.3d 53
September 21, 2022
The plaintiff, a site safety inspector, was injured when she slipped on black ice that was present on an access road to a construction site, and asserted § 241(6) claims and negligence against the City of New York and others based upon their failure to protect her against slipping hazards. The Second Department reversed the denial of the city’s motion for summary judgment, finding that transitory conditions such as snow and ice on roadways are the types of potentially dangerous conditions for which written notice must be given before liability may be imposed against a municipality. The court further held that where a municipality establishes the lack of prior written notice of the defect, the evidentiary burden at summary judgment shifts to the plaintiff to establish the application of an exception to the rule, either that the municipality affirmatively created the defect or that a special use of the property resulted in a special benefit to the municipality, and that this rule applies even where the plaintiff specifically alleges that the municipality affirma-
TOPICS: Labor Law § 240(1), Inadequately secured ladder
EXLEY V. CASSELL VACATION HOMES, INC.
209 A.D.3D 839
October 19, 2022
The plaintiff allegedly fell from a ladder while inspecting a roof to repair a leak on the defendant’s property, which included multiple residential apartments. The defendant allowed the plaintiff to live rent-free in one of the apartments in return for the plaintiff’s work maintaining the property. The plaintiff commenced an action alleging a violation of Labor Law § 240(1), and both parties moved for summary judgment on the claim. The Supreme Court granted the plaintiff’s motion and the Second Department affirmed. The court noted that in ladder cases, “there must be evidence that the subject ladder was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial factor in causing the plaintiff’s injuries.” Based on that standard, the court affirmed, finding that the plaintiff made a prima facie showing that the ladder was defective and not adequately secured, as it was “missing” its right leveling foot, and the feet of the ladder “kicked” backwards causing the fall. The court further found that defendant’s opposition failed to raise a triable issue, and its own motion for summary relief was properly denied.
PRACTICE NOTE: The court made a point of noting that a statutory violation may be shown by a defective or inadequately secured ladder, and proximate cause.
TOPICS: Labor Law § 240(1), Proximate cause
FERNANDEZ
178 N.Y.S.3D 91
November 2, 2022
V. TAPING EXPERTS, INC.
The plaintiff fell from a makeshift scaffold while painting a stairwell at the defendant private school. The plaintiff commenced an action alleging, among other things, a violation of Labor Law § 240(1) and, after a jury trial, the jury returned a verdict in favor of the defendant school, finding that the plaintiff suffered a fall, but that such fall was not a proximate cause of his injuries. The plaintiff moved pursuant to CPLR 4402(a) to set aside the verdict as contrary to the weight of the evidence, but the Supreme Court denied the motion and entered judgment for the defendant. The court noted that a defense jury verdict “may not be set aside as against the weight of the evidence unless the evidence preponderates so heavily in the plaintiff’s favor that it could not have been reached on any fair interpretation of the evidence.” Here, the jury found no proximate cause because two defense experts testified that the plaintiff’s injuries were not caused by his fall from the scaffold but were instead degenerative in nature, and as such, the evidence did not preponderate in the plaintiff’s favor on proximate cause, and was based on a fair interpretation of the evidence. The court
also found that the plaintiff’s challenges to the jury charge, verdict sheet, and failure to grant him to judgment during trial were either unpreserved or were raised for the first time on appeal, and not reviewable.
PRACTICE NOTE: This is one of the those rare occasions, sought by legions of defense attorneys, where a jury finds a violation of Labor Law § 240(1), but that the medical evidence does not support a finding of proximate cause due to the degenerative nature of the plaintiff’s conditions.
bor Law § 240(1), and owner JBB Retail moved for summary judgment dismissal, arguing that the plaintiff was not an employee under the Labor Law because he was not present at the site that day, and was not permitted or suffered to work thereon. The defendant supported this argument with affidavits from supervisors from JBB Retail and High Rise, but also included the plaintiff’s deposition testimony that alleged that he was paid by High Rise in cash. The Supreme Court denied JBB Retail’s motion, finding that it failed to make a prima facie showing that the plaintiff was not an employee under the Labor Law given that the supervisors’ averments were conclusory insofar as they did not claim to be present at the site, and such averments also conflicted with the plaintiff’s testimony, and therefore, merely raised triable issues of fact.
PRACTICE NOTE: When moving for summary judgment in a Labor Law case, it is important to remember that most defense attorneys include the plaintiff’s entire deposition transcript, and therefore, even if the plaintiff provides some dubious and implausible testimony, any good evidence the defense has will always be weighed against and considered in conjunction with the plaintiff’s sworn statements, which might eliminate a basis for summary relief.
TOPICS: Labor Law § 200, Labor Law § 240(1), Labor Law § 241(6), Contractual indemnification
TORRES V. ACCUMANAGE, LLC
177 N.Y.S.3D 644
November 2, 2022
TOPICS: Labor Law § 200, Labor Law § 240(1), Labor Law § 241(6), Covered person
HERNANDEZ V. HIGH RISE BLDG. & DESIGN, INC.
177 N.Y.S.3d 667
November 2, 2022
The plaintiff allegedly was injured when he fell from a scaffold while performing sheet rock installation at a construction site owned by defendant JJB Retail. The plaintiff also alleged that he was hired to work on the project by a contractor, High Rise, retained by the owner, who paid him weekly in cash and supervised his work. The plaintiff commenced an action against the defendant alleging a violation of La-
The plaintiff was employed by NJM, a framing subcontractor, and allegedly was injured when he was walking along a scaffold surrounding the garage when the scaffold platform suddenly collapsed. The plaintiff commenced a Labor Law action against the owner (Brewer) and the construction manager (Accumanage), who then, in turn, commenced a third-party action for contractual indemnification against NJM. The Supreme Court issued several summary judgment rulings, including denying Accumanage’s motion for dismissal of the Labor Law § 200 claim, denying its motion for dismissal of plaintiff’s Labor Law § 241(6) claim, denied the plaintiff’s motion for judgment on his Labor Law § 240(1) claim, and granted NJM’s motion for dismissal of Accumanage’s claim for contractual indemnification. The Appellate Division granted Accumanage’s motion
for dismissal of the Labor Law § 241(6) claim, and denied NJM’s motion for dismissal of the third-party contractual indemnification claim of Accumanage. On the Labor Law § 241(6) issue, the court held that no violation of Industrial Code § 23-1.22(c) was shown, since the plaintiff’s own testimony showed the planking was at least two inches thick, and any violation of § 23-1.22(c)(2) was not a proximate cause of the injuries, as the lack of safety rails was not a cause of the accident. On the contractual indemnification claim, the court held that the claim should not be dismissed because the argument that the accident over the garage was outside the scope of the contract work can be waived, if not asserted and the lack of written modification would not prevent the garage work (where the accident occurred) part of the contract that contained the indemnity provisions. Thus, a triable issue existed as to whether the loss fell within the terms of the contractual indemnity provision sufficient to trigger it.
PRACTICE NOTE: This case will be an encouraging sign to a party with a contractual indemnity claim against another, but questions exist as to whether the work giving rise to the accident fell with the scope of the contract work.
the Labor Law § 200 and negligence claims was affirmed based on the owner’s demonstration that it lacked authority to supervise or control the injury-producing work. The court also affirmed the denial of the plaintiff’s motion on the Labor Law § 241(6) claim, alleging a violation of Industrial Code § 23-3.3(c), which requires continuing inspections during hand demolition, because the plaintiff failed to make a prima facie showing that the accident arose from structural instability caused by the progress of demolition rather than from the actual performance of the work.
PRACTICE NOTE: This decision provides a template for defending Labor Law claims asserted in the context of hand demolition operations, where the very purpose of the work is to destruct and demolish parts of a building or structure, a circumstance where safety devices securing the wall to be demolished would not even be expected.
PRACTICE NOTE: The decision highlights the continued availability of the sole proximate cause defense to defeat a plaintiff’s motion for summary judgment, despite the trend in New York courts to limit that defense.
TOPICS: Labor Law § 240(1), Safety device
PINZON V. ROYAL CHARTER PROPS., INC.
2022 NY Slip Op 06891
December 6, 2022
TOPICS: Labor Law § 200, Labor Law § 240(1), Labor Law § 241(6), Sole proximate cause
JARNUTOWSKI V. CITY OF LONG BEACH
2022 N.Y. APP. DIV. LEXIS 6348 November 16, 2022
TOPICS: Labor Law § 200, Labor Law § 240(1), Labor Law § 241(6), Falling object, Demolition
CARRANZA V. JCL HOMES, INC.
2022 N.Y. APP. DIV. LEXIS 6390
November 16, 2022
The plaintiff was injured while demolishing a bathroom wall by standing on the second step of a three-foot ladder and striking the wall with a hammer, causing a large piece of cement board to drop on him and the ladder, causing both to fall. The plaintiff sued, alleging violations of Labor Law §§ 200, 240(1) and 241(6) and common-law negligence. The defendant owner moved for summary judgment dismissal of the complaint, and the plaintiff cross-moved for partial summary judgment on Labor Law §§ 240(1) and 241(6). The Supreme Court granted those branches of the owner’s motion dismissing the Labor Law §§ 200 and 240(1) and negligence causes of action, and denied the plaintiff’s cross motion. The Appellate Court affirmed the dismissal of Labor Law § 240(1) on the ground that there was no falling object liability since cement board did not need to be secured for the purpose of the undertaking and it did not fall due to the absence or inadequacy of a safety device. Dismissal of
The plaintiff alleges that there was a hazardous opening created during hand demolition operations. The plaintiff commenced an action alleging violations of Labor Law §§ 200, 240(1) and 241(6) and common-law negligence. The defendant city moved for summary judgment dismissal of the complaint, and the plaintiff crossmoved for partial summary judgment on Labor Law § 240(1) against the city. The Supreme Court denied the city’s motion and the plaintiff’s cross motion, and both parties appealed. The Second Department affirmed the ruling on Labor Law § 240(1), finding triable issues as to the manner in which the accident occurred, whether adequate safety devices were available at the work site, whether the absence of an adequate safety device was a proximate cause, and whether the plaintiff’s actions were the sole proximate cause of his injuries. The Appellate Court also affirmed the denial of the city’s motion on the Labor Law § 241(6) claim, since the city failed to make a prima facie showing of the inapplicability of the cited code provisions, or a lack of proximate cause or violation. The court did modify to dismiss the Labor Law § 200 and common-law negligence claims, given the absence of evidence that the city exercised supervision or control over the method or manner of the work.
The plaintiff was injured when he fell from a six-foot ladder when it suddenly moved to the left, causing him to lose balance and fall. The Second Department reversed the lower court and held that the plaintiff established prima facie entitlement to summary judgment on the Labor Law § 240(1) claim by his testimony that the ladder moved out from under him for no apparent reason. That the plaintiff inspected the ladder and found it to be in good working order before using it was held to be irrelevant under Labor Law § 240(1). Further, it was held that the plaintiff was entitled to summary judgment even though he was the only witness to the accident because there was nothing in the record to controvert his account or question his credibility. Even though the plaintiff did not seek treatment until two weeks after the accident, he reported the accident to his supervisor immediately after it happened.
PRACTICE NOTE: A plaintiff is not required to demonstrate that a ladder was defective in order to establish liability under Labor Law § 240(1).
TOPICS: Labor Law § 240(1), Labor Law § 241(6)
SINGH V. NEW YORK CITY HOUS. AUTH. 2022 NY Slip Op 07015
December 8, 2022
The plaintiff was injured while ascending an unsecured ladder to the top of a sidewalk bridge. The ladder slipped underneath him and the plaintiff struck his face against the bridge and fell to the ground. The Second Department affirmed the lower court and held that there were issues of fact as to whether the accident occurred and whether the defendants could be held liable under Labor Law § 240(1) and Labor Law § 241(6). In an affidavit, the plaintiff’s foreman denied that the events occurred as described by the plaintiff.
PRACTICE NOTE: Summary judgment on a Labor Law § 240(1) or Labor Law § 241(6) claim in favor of a plaintiff is inappropriate where there is conflicting evidence as to whether the accident occurred.
TOPICS: Labor Law § 240(1), Safety device, Elevation-related risk
LADD V. THOR 680 MADISON AVE, LLC
2022 NY Slip Op 07031
December 13, 2022
The plaintiff was injured when the hatch door in the ceiling of a construction hoist that he had opened slammed onto his head and caused him to slip down a few rungs on the ladder. The Second Department held that the plaintiff was entitled to summary judgment on his Labor Law § 240(1) claim because the hoist—which was a part of the hatch—was a safety device that was inadequate for its purpose of keeping the plaintiff safe while he was engaged in an elevation-related activity of attempting to safely remove himself from a height. The court further held that if the hatch door itself was considered the safety device, the plaintiff was still entitled to summary judgment under Labor Law § 240(1) because it failed to protect the plaintiff from the elevation-related risk of a falling object. The plaintiff’s purported negligence in the manner that he climbed the ladder or released hold of the hatch was no defense to the Labor Law § 240(1) claim.
PRACTICE NOTE: The contributory negligence of a plaintiff is no defense to a Labor Law § 240(1) claim.
proximate cause of his accident. The plaintiff’s foreman testified that he told the plaintiff not to use the subject ladder and to use different ones that were nearby. The foreman put the ladder in a dumpster and a laborer from a codefendant company stepped on it to make it unusable. The plaintiff’s accident happened 15 minutes later. The court held that the Labor Law § 200 claims against the owner were properly dismissed because they did not control the means and methods of the plaintiff’s work. However, as for the defendant whose employee stepped on the ladder to bend it, the Second Department reversed the lower court and denied summary judgment on the Labor Law § 200 claim against them because they affirmatively created the hazard that caused the plaintiff’s injury.
PRACTICE NOTE: Where the plaintiff is the sole proximate cause of his accident, there is no liability under Labor Law § 240(1).
TOPICS: Labor Law § 200, Labor Law § 240(1), Labor Law § 241, Enumerated activity, Ladder
SAITTA V. MARSAH PROPS., LLC
2022 WL 17971835
December 28, 2022
TOPICS: Labor Law § 240(1), Labor Law § 200, Sole proximate cause, Means and methods
BRESLIN V. MACY’S, INC.
2022 Slip Op 07180
December 20, 2022
The plaintiff was injured when he fell from a ladder when one of its legs bent. The Second Department affirmed the lower court’s denial of summary judgment on the Labor Law § 240(1) claim and held there was a genuine issue of fact as to whether the plaintiff was the sole
TOPICS: Labor Law § 240(1), Elevation-related risk, Leave to renew, CPLR 2221(e)
D’AMBRUOSO V. PORT AUTH. OF N.Y. & N.J. 2022 Slip Op 07184
December 20, 2022
The plaintiff alleged that he was wheeling a hand truck of work material on a plywood ramp when a piece of the plywood shifted and caused him to fall onto steel piping and the concrete floor that was 12 to 18 inches below him. The Second Department upheld the lower court’s denial of summary judgment on the plaintiff’s Labor Law § 240(1) claim. The court held that the plaintiff’s accident was not the result of an elevation-related risk for which he was not properly protected. The Second Department also upheld the lower court’s denial of the plaintiff’s motion for leave to renew because they failed to provide a reasonable justification for why they did not include the video they sought to include in the renewal motion at the time of the original motion.
PRACTICE NOTE: Liability arises under Labor Law § 240(1) only where the plaintiff’s injuries are the direct consequence of an elevation-related risk that they are not properly protected against, not a separate and ordinary tripping or slipping hazard.
The plaintiff commenced this Labor Law action against the defendant seeking damages for injuries he allegedly sustained while mounting a television on the wall of a doctor’s office. At the time of the incident, the plaintiff was descending from a third step of a six-foot ladder when the ladder allegedly twisted, causing him to fall. The defendants moved for a summary judgment dismissing the plaintiff’s complaint on the common-law negligence claim, and Labor Law §§ 200 and 240(1) claims. The Supreme Court granted the defendants’ motion dismissing the common-law negligence and Labor Law § 200 claims, but denied the defendants’ motion for summary judgment for Labor Law § 240(1). When all parties appealed, the Appellate Court found that the Supreme Court properly granted the defendants’ motions because the defendants established that they did not create or have actual or constructive notice of the alleged condition which caused the plaintiff's injury, and that they had no authority to supervise or control the means and methods of the plaintiff’s work. In addition, the Appellate Court found that the Supreme Court should have granted the defendant's summary judgment dismissing the plaintiff’s Labor Law § 240(1) claim because they established that the plaintiff was not engaged in any of the enumerated activities under Labor Law § 240(1).
PRACTICE NOTE: A party is not liable if they did not create of have actual or constructive notice of the alleged condition which caused another party’s injury and had no authority to supervise or control the means and methods of that party’s work.
TOPICS: Labor Law § 241(6), Labor Law § 200, Safety device, Ladder
BORELLI V. JB IV, LLC
209 A.D.3d 1121
October 20, 2022
The plaintiff, a laborer, was performing exterior painting work at the premises owned by the defendant, JB IV, LLC and leased by Champz of Binghamton, LLC d/b/a Peterson’s Tavern. The work required the use of a ladder from which the plaintiff subsequently fell, causing personal injuries. The defendants moved for summary judgment and the plaintiff cross-moved. The Supreme Court granted the defendants’ motion, in part, by dismissing two regulatory violations within the Labor Law § 241(6) claim, but otherwise denied the remainder of the defendants’ motion and the plaintiff’s cross motion. The Appellate Division held that the Supreme Court did not err in denying the branch of the defendants’ motion relative to the Labor Law § 200 claim as an issue of fact persisted with regards to the party that placed the subject ladder and whether the defendants had any notice thereof. Similarly, despite it being undisputed that the plaintiff was subject to an elevation-related hazard, the Supreme Court properly denied the branches of the motions relative to Labor Law § 240(1), as an issue of fact remained relative to the improper use of the ladder and who retrieved and set same up. Finally, the Appellate Division found that the Supreme Court properly denied the portion of the defendants’ motion relating to Labor Law § 241(6), as the defendants failed to establish that they did not violate any regulations relative to the “missing feet” on the subject ladder.
PRACTICE NOTE: In order to hold a property owner liable under Labor Law § 240(1), the owner must breach the statutory duty thereunder to provide a worker with adequate safety devices. Similarly, where an employee has been provided with an elevation-related safety device, it is usually a question of fact as to whether the device provided proper protection.
TOPICS: Labor Law § 240(1), Labor Law § 241(6), 12 NYCRR § 23-5.22, Scaffold, Indemnity
MORIN V. HERITAGE BLDR. GROUP, LLC
2022 NY Slip Op 06846
December 1, 2022
The plaintiff, a taper employed by third-party defendant Wall-Tech Drywall, LLC, fell and was injured while working at a construction site owned by Heritage Builders Group, LLC. The plaintiff alleged his injuries resulted from the defendants’ failure to comply with Labor Law §§ 240(1) and 241(6). In its defense, Heritage Builders filed cross-claims against co-defendant Joseph Dupuis for indemnification, who filed a third-party action against Wall-Tech for indemnification. The plaintiff moved for summary judgment based on Labor Law §§ 240(1) and 241(6), Heritage Builders moved for summary judgment for indemnification against Dupuis, Dupuis cross-moved for summary judgment dismissing the plaintiff’s complaint and Heritage Builders’ cross-claims, and Heritage Builders then cross-moved for dismissal of the plaintiff’s complaint. The Supreme Court denied the motions with respect to Labor Law § 240(1) and indemnification, but granted the defendants’ motion relative to Labor Law § 241(6). The Appellate Division found that the Supreme Court properly denied the motions relative to Labor Law § 240(1), as conflicting expert opinions created an issue of fact. The Supreme Court also properly granted the branches of the defendants’ motions relative to Labor Law § 241(6), as the violation alleged by the plaintiff, failure to provide scaffold where stilts are utilized pursuant to 12 NYCRR § 23-5.22, as the plaintiff was not utilizing stilts in performing his work; the Appellate Division highlighted that 12 NYCRR § 23-5.22 explicitly contemplates the use of stilts. Finally, the Supreme Court properly denied the indemnification claims as premature, finding that Dupuis had not been found liable and due in part to Heritage claiming that the plaintiff was the sole proximate cause of his own injuries.
PRACTICE NOTE: Liability under Labor Law § 240(1) arises when a worker’s injuries are the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.
Thus, a plaintiff has the burden of establishing that a statute was violated and that that violation was the proximate cause of their injuries. A defendant’s showing of potential comparative negligence does not trump summary judgment, however, it can raise an issue of fact if the defendant can show that adequate safety devices and/or measures were properly placed and that the plaintiff’s conduct, itself, was the proximate cause of their injuries.
TOPICS: Labor Law § 200, Labor Law § 240(1), Labor Law § 241, Homeowner’s exemption, Ladder
WHITING V. NAU
2022 NY Slip Op 06976
December 8, 2022
The plaintiff was the employee of a company hired by the defendants, Todd Nau and Scott Dolphin, to convert a two-story barn on their residential property into living spaces. When the appropriate ladder for the work being performed was unavailable, the plaintiff crafted an elevated walk board to allow himself to reach the ceiling above a stairwell. The walk board then collapsed while the plaintiff was on it, resulting in the plaintiff falling and injuring his ankle. The plaintiff then commenced this action pursuant to Labor Law §§ 200, 240(1) and 241(6) and common law negligence. The plaintiff sought summary judgment pursuant to Labor Law § 240(1), and the defendants cross-moved for dismissal of common law negligence and Labor Law § 200, as it was “undisputed that the defendants did not supervise the work nor control the manner and means of the plaintiff’s work.” The Supreme Court denied both motions based on its finding that there were material issues of fact as to the defendants’ entitlement to the homeowner’s exemption. The Appellate Division found that the record did not provide enough evidence to support a finding of entitlement as to whether the property functioned as a one- or two-family residence such that the exemption would apply.
PRACTICE NOTE: While premises that are used solely for commercial purposes are not exempt from the Labor Law, residences that serve dual residential and commercial uses may fall within the exception depending on the site and the purposes of the work being performed.
TOPICS: Labor Law § 241(6), Industrial code
SHELEY V. KINGSFORT BLDRS., INC.
207 A.D.3D 1118
July 8, 2022
In this Labor Law § 241(6) case, the plaintiff allegedly suffered an injury to his eye while using a nail gun on a residential construction project. Although there were safety glasses on the construction site on the day of the injury, the court held that there was a question of fact about whether the defendant instructed the plaintiff to use them, which the court concluded was a requirement of 12 NYCRR § 231.8 [a], upon which the plaintiff based his § 241(6) claim. The court further concluded that although the defendant claimed he previously instructed the plaintiff to use safety glasses on a prior construction project just prior to the one where the plaintiff was allegedly hurt, there was a question of fact about whether the plaintiff was so instructed.
PRACTICE NOTE: Caution is needed when determining what is required to satisfy requirements of the Industrial Code. Some, such as 12 NYCRR § 23-1.8 [a], require more than providing safety equipment. An instruction to use that equipment is also necessary.
physically significant elevation differential. Although the elevation difference was only two or three feet, in this case, given the weight of the lift, the difference was enough to refute a contention that it was de minimus.
PRACTICE NOTE: Despite the exact nature of the accident, if it results in an elevation difference, Labor Law § 240(1) may be applicable. Further, even a small elevation difference may be enough to maintain a § 240(1) claim if that difference is enough to cause significant harm.
TOPICS: Labor Law § 240(1), Ladder, Safety device, Routine maintenance, Enumerated activity
GREEN V. EVERGREEN FAMILY LTD. PARTNERSHIP
210 A.D.3d 1496
November 18, 2022
TOPICS: Labor Law § 240(1), Repair, Enumerated activity
STONEHAM V. JOSEPH BARSUK, INC.
210 A.D.3d 1479
November 18, 2022
TOPICS: Labor Law § 240(1), Height differential, Elevation-related risk
SHANTZ V. BARRY STEEL FABRICATION, INC.
207 A.D.3D 1169
July 8, 2022
In this Labor Law § 240(1) case, the plaintiff was injured when a scissors lift, which he was unloading from a truck bed using an inclined ramp, pinned him between the top of the lift and the upper part of the loading dock's door frame. The court determined that when determining if a plaintiff is entitled to recover under Labor Law § 240 (1), the inquiry does not depend upon the precise characterization of the device employed or upon whether the injury resulted from a fall, either of the worker or of an object upon the worker. Rather, the single decisive question is whether the plaintiff's injuries were the direct consequence of a failure to provide protection against a risk arising from a physically significant elevation differential. The court further concluded that the defendants failed to establish as a matter of law that the plaintiff's injuries were not the direct consequence of a failure to provide adequate protection against a risk arising from a
The plaintiff was injured while working on a flatbed trailer owned by the defendant. At the time of the accident, the plaintiff had utilized a front-end loader to lift the flatbed trailer and was replacing a leaking air tank on the trailer’s brake system. The loader that was holding the trailer rolled backward, dropping the trailer on top of the plaintiff, resulting in injuries. The plaintiff sought summary judgment on liability pursuant to Labor Law § 240(1), with the defendant cross-moving for summary judgment dismissing the third cause of action alleging the Labor Law violation. The Supreme Court denied the plaintiff’s motion and granted the defendant’s. The Appellate Division affirmed the decision, finding that the plaintiff was not engaged in a protected activity within the meaning of Labor Law § 240(1) at the time of the accident as 1) the replacement of an air tank did not constitute a “repair”; and 2) the trailer, despite being a “production or piece of work artificially built up or composed of parts joined in some definite manner” did not constitute a “structure.”
PRACTICE NOTE: Terms such as “repairing” or “structure” must be taken in light of Labor Law § 240(1), as a whole, as opposed to in isolation, as the statute’s concern is the dangers that beset workers in the construction industry.
The plaintiff was allegedly injured following a fall from an A-frame ladder he was using while working on a 10-foot-high car wash overhead door. The plaintiff moved for summary judgment on liability and to dismiss the defendants’ 14th affirmative defense, alleging that the plaintiff’s own actions were the sole proximate cause of his own injuries. The Supreme Court denied the motions with respect to Labor Law § 240(1), but granted the dismissal of the 14th affirmative defense. The Appellate Division affirmed the decision of the Supreme Court, reiterating that it is well settled that Labor Law § 240(1) does not apply to routine maintenance in a non-construction, nonrenovation context. They further reasoned that an issue of fact was created as to whether the plaintiff was replacing parts as a result of normal wear and tear or if the work being performed was necessary to restore the door to the proper functioning of an otherwise inoperable overhead door.
PRACTICE NOTE: Labor Law § 240(1) does not apply to routine maintenance in a nonconstruction, non-renovation context. The delineation between routine maintenance and repair is a fact-driven endeavor that depends upon whether the item being worked on was inoperable or malfunctioning prior to the commencement of the work and whether the work involved the replacement of components damaged by normal wear and tear.
TOPICS: Labor Law § 240(1)
HANN V. S&J MORRELL, INC.
207 A.D.3D 1118
December 14, 2022
In this Labor Law § 240(1) case, the plaintiff was a framer employed by a subcontractor on a residential construction project of which the defendant was the owner and general contractor. The plaintiff allegedly fell while erecting an elevated exterior deck. The plaintiff was not entitled to summary judgment because the defendant’s supervisors testified that they examined the subject deck after the purported accident and discovered that the deck never collapsed, and there was nothing otherwise
wrong with the deck. The supervisors also testified that nobody from the plaintiff’s employer was present on the day of the fall. Thus, the court determined that whether the accident occurred at all is a credibility determination left for a jury to decide. If the testimony of the defendant’s supervisors is correct, then no accident occurred.
PRACTICE NOTE: This case is a straightforward example of the principal that if liability turns on credibility issues between multiple witnesses, then summary judgment will be denied.
TOPICS: Labor Law § 240(1), Sole proximate cause, Safety device
HYDE V. BVSHSSF SYRACUSE LLC
2022 N.Y. Slip Op 07329
December 23, 2022
The plaintiff was working on the exterior of the third floor of a building, utilizing a wooden platform to perform his job. In order to access the platform, he used a temporary elevator
that was erected on the exterior of the building by the defendant, Hueber-Breuer Construction Co., Inc. (HBC), the general contractor on the project. At each floor, the plaintiff would step off the lift onto a temporary wooden platform landing on the exterior of the building. A temporary access door was used to enter the building from the exterior; the door was secured using a makeshift lock that prevented a person inside from accessing the exterior. The person operating the lift was responsible for locking the door prior to operating the lift. The plaintiff, accompanied by other workers, used the elevator to access the third floor to gather waste. While gathering waste, another worker used the elevator to access another floor, but had failed to lock the access door. As a result, when the plaintiff was walking backwards and pulling a waste cart he walked through the unlocked door and fell off the wooden platform to the ground. The plaintiff moved for summary judgment based on liability against HBC and the owner entity, BVSHSSF Syracuse LLC. The Supreme Court denied the motion, and the Appellate Division reversed the decision. The Appellate Division reasoned that the plaintiff
established the absence of an adequate safety device that could have prevented his fall, namely a lock on the third-floor access door. The defendants failed to raise a triable issue of fact as to whether the plaintiff was the sole proximate cause of his own injuries, as there was no evidence to support that claim. The defendants allege that the plaintiff was walking backwards and did not look behind him as he approached the door. The Appellate Division concluded that although the plaintiff’s actions constitute contributory negligence, that defense is unavailable under Labor Law § 240(1).
PRACTICE NOTE: Although a plaintiff’s actions might amount to contributory negligence resulting in their injuries, contributory negligence is not available as a defense under Labor Law § 240(1).
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