Contact Us Today Labor Law Pointers - Volume XI, No. 1 Wednesday, December 1st, 2021 Labor Law Pointers A Monthly Electronic Newsletter Addressing New York State Labor Law Decisions and Trends Volume XI, No. 1 Wednesday, December 1, 2021 From the Editor: Do you have a situation? We love situations. Give us a call, send an email or drop by; we truly enjoy solving complex Labor Law and risk transfer issues. First of all, I want to report that I survived my shift in the 11 Day Powerplay, with no serious injuries. We were on the rink next to the “Frozen Forty” who played for the entire 11 days and set a new world record for the longest continuous hockey game. Every time I felt tired or sore, I only had to look over in that direction. All told, we helped raise $2.1M for cancer research and to help the families of cancer patients through the 11 Day Powerplay. I want to thank all of our readers, and point out that this is the first edition of our 11th year providing this newsletter to any and all who are interested. It is not an easy thing to do, but we have never missed a deadline, though when the kids were younger there were a few months when I just couldn’t pass up the “daddy, just lay down with me for a minute” request, so that edition may well have been sent out at 4:00 AM. I hope everyone had a nice Thanksgiving. I had 23 for dinner, all family, and a great time was had by all. It was especially nice, as we were not able to get together last year, so it was the first time that almost the entire family was together. We were missing one daughter who is working in London, but she will be here for Christmas. We also wish a Happy Hanukkah to our Jewish readers and friends. On to our challenging, educational, photographic questions. Here we have a man who decides to decorate his home, owned exclusively by his wife, with a variety of Christmas lights and other illuminated decorations. While doing so, he utilizes an extension ladder to reach the elevated areas he wanted to decorate. His wife, while not actively assisting the plaintiff in the hanging of the lights, does assist in resolving an issue with the electrical circuits and provides encouragement to her husband when he becomes frustrated with the display. While the husband is on the ladder, it suddenly, and for no known reason, retracts, causing injury to the plaintiff. See photos of the plaintiff below, as well as what appears to be video from a surveillance camera of the actual fall. Does he have a valid § 240(1) Labor Law claim against his wife, the owner of the home? https://youtu.be/w3gTKdJnMHk The wife would have the protection of the single-family home-owner exemption as her actions did not rise to the level of supervision, direction or control of the injury producing work necessary to void that exclusion. In addition, not only is the work being done (decorating) not likely a covered activity, but the husband is not a valid plaintiff as he is not a “person so employed”. No valid § 240(1) case here; he will need to find a different way to afford to take his family to Europe on vacation. In our next photo, we have the scene where a team of roofers, hired in Buffalo to reroof a single-family rental property before the new tenant moved in, decided to bring a TV up to watch the Bills – Jets game while finishing the roof. When the Bills scored a touchdown against that green team from New Jersey, a worker became so excited that he literally jumped for joy, landing awkwardly, and rolling off the roof. His boss, who had been working right beside him, climbed down, told him that the extra point was good, and called 911. § 240(1) case? We have a valid plaintiff; he is a person so employed. We have a valid defendant; the property owner owns the property for commercial purposes, and thus, it is not afforded the exception for single family homes. This was a construction project, and the plaintiff was injured by the effects of gravity. The question is whether there is any potential sole proximate cause defense and frankly, I don’t see any. While having the TV on the roof may not be smart, it would, at best, be comparative negligence on the plaintiff, which can’t be utilized in a §240(1) case. Summary judgment for the plaintiff, and a win for the Bills. In the next photo, we have construction workers, standing on planks held by bent re-bar, over a busy street, while working on the concrete barricade of the elevated road surface, with not a harness, lanyard, net, barrier, or even thin strip of caution tape in sight. This crew was sent by the company hired to refurbish the concrete, but they were sent out with only one man-lift, which was being used for painting at the time of the accident. When the plaintiff steps back to admire his work and falls to the street below, does he have a § 240(1) case? The owner of the bridge is an appropriate defendant, the plaintiff is an appropriate plaintiff, the project qualifies, and the plaintiff was injured by the application of gravity. There is no sole proximate cause defense as there was no appropriate safety device available to the plaintiff, so we have summary judgment for the plaintiff. In our final photo for this month, we have a demolition crew hired to gut an industrial building to prepare for building it out with condos. A worker, working on the upper level, cuts out a portion of the catwalk and removes it. He then realizes that he needs to get across the area he just cut out and takes a piece of the former walkway and lays it over the gap. He was told, in no uncertain terms and confirmed in writing, that he must never use that section of walkway to cross the gap, but that he must use the portable walkway section, purchased by the contractor at great expense, with a failproof method to secure it at both ends, and guardrails guaranteed to keep anyone from falling from it. The portable walkway is stored three feet away from the gap and is completely ready to be installed. He ignores these instructions, and the available and appropriate safety device, and walks across the gap on the narrow piece. He is immediately followed by a co-worker who is not as lucky and falls to the level below. § 240(1)? Well, there is an appropriate plaintiff and defendant. The project, construction, is covered, and the accident occurs from the effects of the force of gravity. Is there a valid sole proximate cause defense? It sounds promising, as there was an appropriate and available safety device. It was not used, or it was misused. There is no good reason for the failure to use it. There was instruction given to use it. How could the sole proximate cause defense not work? The problem with the defense is that the instruction about the removal of the existing walkway, and the installation of the new walkway, were not given to the actual plaintiff, but rather, to another employee, thus no sole proximate cause defense and summary judgment for the plaintiff. That is all for this month! Enjoy the holiday season and remember to reach out with any Labor Law or Risk Transfer situations you may have; we are always here to help. David David R. Adams Hurwitz & Fine, P.C. 424 Main Street Suite 1300 Liberty Building Buffalo, New York 14202 Phone: 716.849.8900 Direct: 716.849.8916 Fax: 716.855.0874 Cell: 716.553.6901 Email: dra@hurwitzfine.com H&F Website: www.hurwitzfine.com Don’t forget to subscribe to our other publications: Coverage Pointers: This twice-monthly electronic newsletter summarizes important insurance law decisions from appellate courts in New York State with the occasional snapshot across borders. Coverage Pointers, the electronic newsletter that started it all, continues to offer guaranteed publication every other Friday, and a read-at-a-glance summary of important decisions as they happen. Contact Dan Kohane at ddk@hurwitzfine.com to subscribe. Employment & Business Litigation Pointers: This newsletter aims to provide our clients and subscribers with timely information and practical, business-oriented solutions to the latest employment and general business litigation developments. Contact Joseph S. Brown at jsb@hurwitzfine.com to subscribe. Medical & Nursing Home Liability Pointers: Medical & Nursing Home Liability Pointers provides the latest news, developments, and analysis of recent court decisions impacting the medical and long-term care communities. Contact Chris Potenza at vcp@hurwitzfine.com to subscribe. Premises Pointers: This monthly electronic newsletter covers current cases, trends and developments involving premises liability and general litigation. Contact Jody Briandi at jeb@hurwitzfine.com to subscribe. Products Liability Pointers: This monthly newsletter covers all areas of products liability litigation, including negligence, strict products liability, breach of warranty claims, medical device litigation, toxic and mass torts, regulatory framework and governmental agencies. Contact Chris Potenza at vcp@hurwitzfine.com to subscribe. Mena v 485 Seventh Ave. Assoc. LLC November 4, 2021 Appellate Division, First Department Plaintiff was performing demolition work, using a motorized chipping hammer to remove part of a wall directly adjacent to the ceiling, when a concrete slab from the ceiling collapsed on him, knocking him five and one-half to six feet off a scaffold and onto the ground. The trial court granted plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim and denied defendants' cross motion for summary judgment dismissing the complaint. Labor Law § 240(1) (MAS) The First Department unanimously affirmed the trial court’s order, finding that plaintiff’s demolition work exposed him to a foreseeable risk of injury from an elevation-related hazard and the absence of a type of protected device enumerated under Labor Law § 240(1) was a proximate cause of his injuries. Photographs of the accident site show that the wall plaintiff was demolishing with the chipping hammer was located directly adjacent to the slab that collapsed and fell on him. The photographs also show that the entire area, including the ceiling, appears to be in partially demolished condition, and the Court held that it is reasonable to believe that plaintiff’s work would create a risk of collapse. PRACTICE POINT: To prevail on a Labor Law § 240(1) claim based on an injury resulting from the failure of a completed and permanent building structure (here, a slab from the ceiling), a plaintiff must show that the failure of the structure in question was a foreseeable risk of the task he or she was performing, creating a need for protective devices of the kind enumerated in the statute. Straughter v Thor Shore Parkway Devs., LLC November 4, 2021 Appellate Division, First Department Thor owned premises that it leased to BJ’s, who retained Fries as the general contractor to construct a BJ’s store on the premises. Fries retained Canatal to fabricate steel as well as install and erect a steel structure at the premises. Canatal retained Canal to install and erect the steel structure using Canatal’s steel. At the time of the accident, plaintiff was descending to the ground by sliding down a vertical steel beam (which was about twelve to fourteen feet above ground level). While climbing down from the elevated beam, plaintiff fell and was injured. The day of the accident was the first day plaintiff worked at the jobsite, and he arrived without a harness and was directed to bolt up beams at a height of about twelve to fourteen feet. Despite asking for a harness during a call with the owner of his employer (Sattar) the weekend prior to working, his employer did not provide plaintiff with a harness. Sattar testified that plaintiff arrived with a harness and wore one at all times. However, when shown a picture taken of the jobsite on the day of the accident, he acknowledged that plaintiff was not wearing a harness. The trial court granted plaintiff’s summary judgment motion on the Labor Law §§ 240(1) and 241(6) claims as against Fries and Wholesale, granted Fries's summary judgment motion on its contractual indemnification claim against Canatal, and granted Thor’s summary judgment motion on its contractual indemnification cross claim against Fries. Labor Law § 240(1) (MAS) The First Department unanimously reversed the trial court’s order and denied plaintiff’s motion because there was conflicting evidence as to the availability of safety devices on the construction site on the day of plaintiff’s accident (see Giordano v Tishman Constr. Corp., 152 AD3d 470 [1st Dept 2017]). PRACTICE POINT: Defendants essentially argued that plaintiff was a recalcitrant worker since he (1) had adequate safety devices (a harness) at his disposal; (2) knew both about them and that he was expected to use them as a requirement to work at the jobsite; (3) chose for “no good reason” not to ask for one upon arriving at the jobsite nor obtaining one before he proceeded to work without the harness; and (4) would not have been injured had he wore a harness during the injury-producing work. Indemnity Issues in Labor Law (BFM) The First Department affirmed the trial court’s granting of Fries's motion for contractual indemnification against Canatal and Thor's motion for contractual indemnification against Fries. The Court noted that Fries was not required to prove that it lacked authority to supervise and control the work and that the contractual provision on which Thor based its cross claim against Fries was not limited to negligence. Upon a search of the record, the Court also granted Wholesale's motion for contractual indemnification against Canatal, pursuant to the same contractual provision that supported Fries's claim, which names Wholesale as an indemnitee. McEachern v Extell Dev. Co. November 9, 2021 Appellate Division, First Department Plaintiff was injured when he attempted to gain access to the interior of a fuel tank room in a building under construction by stepping on an oil barrel to descend the four-foot distance between a hatch door and the floor of the room. The trial court denied plaintiffs’ cross-motion for summary judgment on his Labor Law § 240(1) claim against Tishman and Extell. Labor Law § 240(1) (MAS) The First Department unanimously reversed the trial court’s order and granted plaintiff summary judgment because he made a prima facie showing that defendants did not provide adequate safety devices for gaining access to the fuel tank room. Because no safety devices were available to plaintiff for gaining access to the room, his attempt to use the oil barrel cannot be deemed the sole proximate cause of his accident. Plaintiff did not have an obligation to affirmatively request an adequate safety device. The Court also found an issue of fact as to whether Extell was an owner of the premises, since the Construction Management Agreement listed it along with another entity as owners. PRACTICE POINT: Where, as here, no safety devices were available to plaintiff to access his work area, his comparative negligence cannot be the sole proximate cause of his accident. Medouze v Plaza Constr. LLC November 9, 2021 Appellate Division, First Department Plaintiff, working with several coworkers, was standing on the back of a flatbed truck, lifting a 200- to 300-pound bundle of metal frames so it could be unloaded onto a loading dock. Plaintiff stepped atop another bundle of frames that remained on the back of the truck, and as he was lifting his side of the bundle, a wooden dunnage securing the frames broke, causing them to bow in the middle and fall. The bundle pulled plaintiff down as he attempted to hold onto it, and he fell three and one-half feet to the loading dock floor, landing on top of the bundle. The trial court granted plaintiff’s summary judgment motion under Labor Law § 240(1) and denied defendants' motion for summary judgment dismissing that claim. Labor Law § 240(1) (MAS) The First Department unanimously affirmed the trial court’s order as plaintiff established prima facie that defendants violated the statute since the inadequacy or failure of a device meant to secure an object is sufficient to impose liability on a defendant. Here, the wooden dunnage meant to secure the bundle of frames proved inadequate to prevent it from falling. That plaintiff was pulled down rather than struck by the bundle is of no significance, as his alleged injury flowed directly from the application of the force of gravity to the bundle. The Court rejected certain witness statements and a prehospital care report, as they were unsworn and thus insufficient, without more, to defeat plaintiff’s entitlement to summary judgment. PRACTICE POINT: A violation of Labor Law § 240(1) occurs where an object, while being hoisted or secured, falls because of the absence or inadequacy of a safety device of the kind enumerated in the statute, including where, as here, the inadequacy or absence of a safety device results in the uncontrolled descent of an object (see Runner v New York Stock Exch., Inc., 13 NY3d 599 [2009]). Additionally, while hearsay statements may be offered in opposition to a motion for summary judgment, hearsay statements cannot defeat summary judgment where they are the only evidence on which the opposition to summary judgment is predicated. Davis v Trustees of Columbia Univ. in the City of N.Y. November 16, 2021 Appellate Division, First Department Plaintiff, an apprentice metal lather, was allegedly injured when he tripped on a discarded piece of two-by-four while attempting to descend to a lower level of his work area. There was a height differential of two or three feet between the higher level of plaintiff’s work area, on which rebar had already been installed, and the lower, plywood-covered deck, but no stairs, ladders or other devices had been put in place to facilitate access between the two levels. The trial court denied plaintiff’s summary judgment motion under Labor Law § 241(6) predicated on alleged violations of Industrial Code (12 NYCRR) §§ 23-1.7(e)(2) and 23-1.7(f) and granted Columbia and Sciame’s motion seeking dismissal of the Labor Law § 200 and common-law negligence claims. Labor Law § 241(6) (TPW) The First Department affirmed the trial court’s ruling denying both parties’ motions for summary judgment as to the Labor Law § 241(6) claim. Concerning the alleged violation of Industrial Code § 23-1.7(e)(2), the Court found issues of fact as to whether the wood plaintiff stepped on was integral to the work being performed or constituted an accumulation of debris from previous work. With respect to the alleged violation of Industrial Code § 23-1.7(f), defendant failed to establish that the height difference between the two levels did not require a vertical passage as contemplated by the Code provision. The Court also noted that issues of fact existed as to whether the failure to provide such a passage was a proximate cause of the accident. Labor Law § 200 and Common-Law Negligence (ESB) The First Department modified the trial court’s order by denying summary judgment and reinstating the Labor Law § 200 and common-law negligence claims. First, it restated the “dangerous condition” standard of liability, that in claims arising from an alleged defective or dangerous condition existing at the premises, liability may attach to the owner or general contractor if they either created the condition or had actual or constructive notice of it. It then held that an alleged accumulation of debris may constitute a dangerous condition, and defendants failed to demonstrate they did not have constructive notice of this accumulation of debris. Deleo v JPMorgan Chase & Co. November 16, 2021 Appellate Division, First Department JPMorgan owned the premises being renovated and they hired Plaza as the general contractor for the project. Plaza hired Unity, plaintiff's employer, as the electrical subcontractor to install the electrical equipment. Plaintiff, an electrician employed by Unity, was working at defendants’ premises. Plaintiff was allegedly injured when he was caused to trip and/or slip on debris within a corridor on the 13th floor when he stepped on a bottle cap, which was a part of general construction debris that was within the hallway, causing his foot to slide out and his legs to split apart and he fell, which caused the ladder to fall to the ground. The Supreme Court granted defendants' motion for summary judgment dismissing the complaint and denied plaintiffs' cross motion for summary judgment as to liability on the Labor Law § 241(6) claim. Labor Law § 241(6) (TPW) The First Department unanimously modified the trial court’s order granting defendants’ motion for summary judgment dismissing the Labor Law § 241(6) claim. The Court held that the record presented an issue of fact as to whether the bottle cap upon which it is alleged plaintiff slipped and fell at the construction site was part of an accumulation of debris within the meaning of Industrial Code § 23-1.7(e), on which the Labor Law § 241(6) claim could be predicated. Labor Law § 200 and Common-Law Negligence (ESB) The First Department reversed the trial court’s decision. In this hazardous condition case, defendants failed to proffer evidence of when the area was last cleaned or inspected before the injured plaintiff's accident. Instead, it presented only general testimony by its employees that the area was inspected daily, and that debris was removed by laborers. Consequently, it failed to demonstrate entitlement to summary judgment on the Labor Law § 200 and common-law negligence claims. Hernandez v 767 Fifth Partners, LLC November 16, 2021 Appellate Division, First Department Plaintiff was allegedly injured when the platform of the baker scaffold he was standing on fell through its frame to the ground. The trial court granted third-party defendant JP Phillips’s motion for reargument, and upon reargument, vacated a prior order to the extent it granted plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim against defendants/third party plaintiffs 767 Fifth Partners, Boston Properties, and Plaza Construction. Labor Law § 240(1) (MAS) The First Department unanimously reversed the trial court’s order and denied the motion for reargument and reinstated summary judgment to plaintiff. The Court held plaintiff made a prima facie showing of entitlement and conflicting facts as to why the scaffold collapsed are irrelevant because whether the scaffold fell due to a worn platform or an unfixed pin, proper protection was not provided to plaintiff. JP Phillips claimed that plaintiff caused the scaffold to collapse, but plaintiff did not erect the scaffold and even if he was moving the scaffold at the time of the accident, there is no evidence that such an action caused an otherwise non-defective platform to collapse, and thus is no defense to the claim. PRACTICE POINT: An injured worker’s own comparative negligence can never be the sole proximate cause of the accident, where, as here, it is undisputed that plaintiff was using the device he had been provided, there were insufficient planks on the scaffold on which plaintiff could stand, and no other safety devices were provided to prevent or protect the worker from a possible fall. DaSilva v Toll First Ave., LLC November 18, 2021 Appellate Division, First Department Plaintiff was injured when he fell off an unsecured wooden plank while constructing a hollow rectangular structure that would serve as the framework for the pouring of concrete columns. His coworkers placed unsecured wooden planks across the horizontal beams of the structure to allow him to cross the beams and place heads on the tops of the vertical posts at the corners of the structure. His injury occurred when one of the planks flipped as he was performing the work, causing him to fall to the concrete floor. The trial court denied Toll First, and Toll GC’s summary judgment motion seeking dismissal of the Labor Law § 240(1) claim and granted plaintiff’s cross motion for summary judgment as to liability on that claim. The trial court also granted defendants summary judgment dismissing the Labor Law § 200 and common-law negligence claims as against them and on their third-party claim for contractual indemnification. Labor Law § 240(1) (MAS) The First Department unanimously affirmed summary judgment in favor of plaintiff, since he established that defendants were liable as the owner and general contractor for his injuries under Labor Law § 240(1). The wooden plank from which plaintiff fell did not constitute a “passageway”, but “served, conceptually and functionally, as an elevated platform or scaffold”. Given defendants’ failure to provide adequate safety devices, plaintiff failure to secure the planks could not have been the sole proximate cause of his fall as it is merely an issue of comparative fault, which is not a defense under this claim. PRACTICE POINT: Cases involving falls from planks come within one of two categories under Labor Law § 240(1): those in which the plank was used as a passageway or stairway, and those in which the plank served as the functional equivalent of a scaffold, ladder or other device enumerated in the statute. Where the plank has been used as a passageway or stairway, § 240(1) does not apply. However, where, as here, the plank served as a tool used in the performance of plaintiff’s work since it is the functional equivalent of a scaffold, ladder or other device, then § 240(1) applies. Labor Law § 200 and Common-Law Negligence (ESB) The First Department affirmed dismissal of plaintiff’s Labor Law § 200 and common-law negligence claims. It found that the record was devoid of evidence that Toll had the authority to exercise supervisory control over the injury-producing work. Instead, the record showed that plaintiff's employer, nonparty Gencon, controlled the work. Moreover, defendant’s authority to ensure the overall safety of the work site and to stop any unsafe work does not rise to the level of supervision and control required to hold owners and general contractors liable under Labor Law § 200. Without the requisite supervisory authority, any constructive notice Toll may have had of the unsafe condition was, therefore, insufficient to give rise to liability, particularly since Gencon had sole control of the means and methods of plaintiff's work. Indemnity Issues in Labor Law (BFM) Given the absence of negligence on Toll's part, the First Department affirmed the trial court’s granting of Toll’s motion for summary judgment on its third-party claim for contractual indemnification. Hovorka v Applied Prods. Co., Inc. November 18, 2021 Appellate Division, First Department Plaintiff fell while walking along an elevated retaining wall to access a job site. The trial court entered judgment in favor of plaintiff as to liability on the Labor Law § 240(1) claim, and upon reargument of plaintiff's motion for summary judgment as to the Labor Law § 240(1) claim, adhered to the prior determination. Labor Law § 240(1) (MAS) The First Department unanimously affirmed the trial court’s order because plaintiff demonstrated that his activity, walking along an elevated retaining wall, presents the type of elevation-related risk contemplated by the statute, which could have been mitigated by providing the type of protective devices listed in the statute. Defendants’ assertion that the presence of ice removed plaintiff’s fall from the scope of the statute is without merit because the statute applies to situations where a slippery surface combined with an elevation hazard proximately caused a plaintiff’s injury. Moreover, plaintiff, an ironworker, was not responsible for removing the snow and debris that predated the project that would enable him to traverse the hillside instead of the wall. PRACTICE POINT: It did not matter that plaintiff’s injuries resulted from slipping on ice, as plaintiff’s accident was proximately caused by the lack of any safety devices enumerated within Labor Law § 240(1) and defendants failed to provide adequate protection against the risk that was created, in part, by the significant elevation differential of the retaining wall. Mullins v Center Line Studios, Inc. November 18, 2021 Appellate Division, First Department Plaintiff was allegedly injured when the wooden ladder he was using to help construct a theater set, which was mounted to the set wall and was required to be climbable, malfunctioned when the newly added top rung detached from the railing as he held onto it and leaned to the side. The trial court granted plaintiff's motion for partial summary judgment on liability under Labor Law § 240(1) as against New York Communications Center and New World Stages (appellants). Labor Law § 240(1) (MAS) The First Department unanimously affirmed the trial court’s order. In opposition, the Court held appellants failed to show “a plausible view of the evidence … that there was no statutory violation, and that plaintiff’s own acts or omissions were the sole cause of the accident.” There is no evidence that plaintiff had been instructed to utilize only the A-frame ladders that his coworkers were already using or to avoid using the ladder from which he fell. The testimony from plaintiff and his supervisor demonstrates that there were no other safety devices readily available, and plaintiff’s use of the ladder was consistent with his employer’s instructions. Thus, any negligence by plaintiff cannot be found to be the sole proximate cause of his accident. PRACTICE POINT: This case is a great example of what not to do, as defendant’s arguments amounted to nothing more than plaintiff’s comparative negligence, which, as our loyal readers know, is not a defense to a Labor Law § 240(1) claim. Rodriguez v Milton Boron, LLC November 18, 2021 Appellate Division, First Department Plaintiff fell from an unsecured A-frame ladder that suddenly moved as he was reaching overhead to hardwire a new smoke and carbon monoxide detector to replace an inoperable hardwired smoke detector that he had just removed. The trial court denied plaintiff's motion for summary judgment on his Labor Law § 240(1) claim and granted defendant's motion for summary judgment dismissing the complaint. Labor Law § 240(1) (MAS) The First Department unanimously reversed the trial court’s order and granted summary judgment to plaintiff, whose proof established that the work constituted a repair under the statute and not routine maintenance. PRACTICE POINT: This is the classic § 240(1) fall from a ladder case and plaintiff only needed to demonstrate that he was engaged in repair work and not routine maintenance. In distinguishing repair versus routine maintenance, courts consider such factors as whether the work was occasioned by an isolated event, as opposed to a recurring condition; whether the object being replaced was a worn-out component in something that was otherwise operable; and whether the device or component that was being fixed or replaced was intended to have a limited life span or required periodic adjustment or replacement. Castellano v Ann/Nassau Realty LLC November 23, 2021 Appellate Division, First Department Plaintiff, now deceased, died from alcohol-related liver disease allegedly exacerbated by his injuries, when a ton of sheetrock was put on a wheeled dolly by employees of PEC. According to the accident report plaintiff signed, the dolly’s wheels snapped and more than one ton of sheetrock on the dolly fell on him crushed his right side and pinned him against a makeshift railing injuring his shoulder, hand and leg. Plaintiff was employed by non-party Feldman at a construction site owned by ANR who hired defendant BRF as general contractor. The trial court denied defendants ANR and BRF’s motion for summary judgment dismissing the Labor Law § 200, negligence, and wrongful death claims against them and granted them only conditional summary judgment on their claim for contractual indemnity against PEC. The trial court later denied PEC’s motion to vacate an order, entered on default, denying its motion for summary judgment dismissing the complaint against it. The trial court also denied PEC’s motion for summary judgment dismissing the complaint and crossclaims because Park East failed to appear for oral argument. Park East moved, by order to show cause, pursuant to CPLR § 2221 to reargue the motion. Labor Law § 200 and Common-Law Negligence (ESB) The First Department reversed the trial court’s order. It found that ANR and BRF, the owner and general contractor of the project, respectively, established that BRF did no more than general safety supervision at the work site and did not have supervisory control over the decedent's injury-producing work, i.e., unloading sheetrock from a truck onto a dolly. Accordingly, the common-law negligence and § 200 claims should have been dismissed as against them. Indemnity Issues in Labor Law (BFM) Noting the dismissal of the negligence claims against ANR and BRF and PEC's contractual obligation to indemnify ANR and BRF for injuries arising from its work and arising from its acts or omissions or those of its direct and indirect employees, the First Department held that ANR and BRF were entitled to summary judgment on their contractual indemnity claim. The Court’s finding was conditioned on a finding of negligence against PEC or its direct or indirect employees. Pawlicki v 200 Park, L.P. November 23, 2021 Appellate Division, First Department Plaintiff, a carpenter employed by third-party defendant Humboldt, was injured on a job when he stepped on a grille covering an opening in the floor. The grille was unsecured by screws, despite the presence of preexisting screw holes, and was covered by construction paper, believed to have been placed for dust protection. Plaintiff's foot slipped down into the exposed opening when the grille caved in. The trial court denied 200 Park and Structure Tone's (the Structure Tone defendants) motion for summary judgment dismissing the common-law negligence and Labor Law § 200 claims and the Labor Law § 241 (6) claim based on a violation of Industrial Code (12 NYCRR) § 23-1.7(e)(1) as against them and on their cross claims and third-party claims for contractual indemnification and breach of contract for failure to procure insurance, granted defendant Four Daughters’ motion for summary judgment dismissing the cross claim for breach of contract for failure to procure insurance, and granted third-party defendant Humboldt Woodworking Installations, Inc.'s motion for summary judgment dismissing the third-party claim for contractual indemnification. Labor Law § 241(6) (TPW) The First Department affirmed the trial court’s denial of defendants’ summary judgment motion under Labor Law 241(6), holding that differing descriptions of the area where plaintiff fell raised an issue of fact as to whether his accident occurred in a “passageway” within the meaning of Industrial Code 12 NYCRR § 23-1.7(e)(1), precluding summary judgment on that claim. Labor Law § 200 and Common-Law Negligence (ESB) The First Department affirmed denial of the motion for summary judgment. It found that the Structure Tone defendants failed to establish that they neither created the dangerous premises condition by covering the unsecured grille with paper, nor had notice of the grille's unsecured condition. Therefore, the Labor Law § 200 and common-law negligence claims properly were not dismissed against them. Indemnity Issues in Labor Law (BFM) The First Department held that due to the existence of issues of fact as to whether negligence on the part of the Structure Tone defendants was the sole proximate cause of plaintiff's accident, summary judgment on their contractual indemnification claim against Four Defendants and Humboldt would be premature. The Court further noted that the Structure Tone defendants failed to establish that the subcontract between their subcontractor, Four Daughters, and Humboldt, plaintiff's employer, was intended for their benefit and that therefore they are entitled to indemnification from Humboldt. Four Daughters failed to establish its entitlement to summary judgment dismissing the cross claim for breach of contract for failure to procure insurance, as a certificate of insurance is merely evidence of a contract, rather than conclusive proof that coverage was in fact procured. Winkler v Halmar Intl., LLC November 23, 2021 Appellate Division, First Department Plaintiff was a concrete pump truck operator for third-party defendant Precision, operating a pump that transferred concrete from a hopper through a hose into a reinforced concrete-form in the process of erecting a mockup of a water tunnel for the “the Aqueduct Project”. Precision rented the pump truck with a driver, plaintiff, to Halmar, the general contractor retained by the DEP to build an interconnection shaft for the Aqueduct Project. Haks was hired by the DEP as a Construction Manager. JA was hired as a Construction Management subcontractor, subject to all the obligations of Haks under its DEP contract. On the lengthwise side of the form, Halmar's employees built a wooden scaffold. The scaffold was used by workers to stand on to feed the pump truck hose into the form. While plaintiff was standing on the scaffold, the walls of the concrete-form gave way, causing him to be thrown twelve feet to the ground and crushed under the scaffold and the collapsed form. The trial court granted plaintiff's motion for summary judgment on the Labor Law § 240(1) claim and the Labor Law § 241(6) claim predicated on a violation of Industrial Code § 23-2.2(a) as against City of New York and DEP (collectively, the City defendants) and the Halmar defendants, and on the Labor Law § 200 claim as against Halmar and denied Halmar's motion for summary judgment dismissing the complaint as against it. Labor Law § 240(1) (MAS) The First Department unanimously affirmed the finding that the City defendants were owners within the meaning of Labor Law §§ 240(1) and 241(6). Although the City defendants were not title owners of the property, they had an interest in the site and “fulfilled the role of owner by contracting to have performed for their benefit.” The record also demonstrated that Halmar was not decedent’s special employer, which would render the action barred against it by Workers’ Compensation Law §§ 11 and 29. Precision retained some control over decedent’s work, such as by employing a dispatcher who assigned decedent to perform the work on the day of the accident. Evidence that Halmar gave some specific instructions to decedent as to the manner of his work was insufficient to rebut the presumption against special employment by showing “conclusively that it … assumed exclusive control over the manner, details and ultimate result of the employee’s work.:” PRACTICE POINT: The special employer defense is established where, combined with other indicia of special employment, the uncontroverted record documents the special employer’s comprehensive and exclusive daily control over and direction of the special employee’s work duties. While many factors can determine special employment status, a significant and weighty feature has emerged that focuses on who controls and directs the manner, details and ultimate result of the employee’s work. Here, Halmar could not demonstrate that it maintained comprehensive and exclusive control over the means and methods by which plaintiff performed the injury-producing work. Maltese v Port of Auth. of N.Y. & N.J. November 30, 2021 Appellate Division, First Department Plaintiff fell when an unsecured extension ladder slid and collapsed under him. The trial court granted plaintiffs' motion for summary judgment as to liability on the Labor Law § 240(1) claim as against Port of Authority of New York and New Jersey, which owned the property. Labor Law § 240(1) (MAS) The First Department unanimously affirmed as plaintiff established prima facie that his injuries were proximately caused by a violation of the statute. While defendant argued that scaffolds and manlifts were readily available on site and that plaintiff was recalcitrant in failing to use them, the Court rejected that contention because there is nothing in the record to indicate that plaintiff knew he was expected to use them but for no good reason chose not do so. PRACTICE POINT: Remember, a defendant must establish all four elements of the recalcitrant worker defense for it to apply. If one is missing, the court will reject the defense in its entirety. Dojce v 1302 Realty Co., LLC November 3, 2021 Appellate Division, Second Department Plaintiff was injured when the handheld power saw or grinder he was using to remove plywood flooring kicked back on him, knocking him backward and cutting his leg. He alleges that his supervisor gave him the tool with the safety guard removed and instructed him to use it to perform his assigned work. His employer had been hired to replace tiles and flooring in a school located on property owned by the defendant 1302 Realty. After being notified of the scheduled deposition of plaintiff’s supervisor, Pedulla, plaintiff objected in writing, based on the automatic stay of discovery imposed by CPLR § 3214(b). Thereafter, 1302 Realty moved to lift the stay and for permission to conduct the deposition. However, rather than awaiting resolution of its pending motion, 1302 Realty elected to proceed without the court's authorization, and without the participation of plaintiff's counsel. The trial court denied defendant’s motion for summary judgment striking those portions of the bill of particulars which alleged that the accident was caused by that defendant’s negligent supervision, negligent retention, and negligent hiring and that plaintiff suffered psychosis, psychotic reaction, and psychotic depression as a result of the accident; granted plaintiff's cross-motion for summary judgment on the Labor Law § 241(6) claim predicated on 12 NYCRR § 23-1.12(c)(1); and granted plaintiff's motion to strike the deposition testimony of Pedulla. Labor Law § 241(6) (TPW) The Second Department modified the trial court’s order granting that branch of plaintiff's cross motion for summary judgment on the issue of Labor Law § 241(6) liability as was predicated on 12 NYCRR § 23-1.12(c)(1). The Court noted that plaintiff’s cross motion was made months after the deadline imposed by the court had elapsed, and plaintiff offered no explanation for the delay. As such, the Court determined that branch of plaintiff's cross motion alleging a violation of Labor Law § 241(6) should have been denied as untimely rendering it was unnecessary to evaluate the merits of the claim. Labor Law § 200 and Common-Law Negligence (ESB) The Second Department reversed the trial court’s order and held that it should have granted that branch of 1302 Realty's motion which was for summary judgment striking those portions of the bill of particulars which alleged that the accident was caused by 1302 Realty's negligent hiring, negligent retention, and negligent supervision. To hold a party liable under theories of negligent hiring, negligent retention, and negligent supervision, a plaintiff must establish that the party knew or should have known of the contractor's propensity for the conduct which caused the injury. 1302 Realty established that plaintiff's employer was hired by 1302 Realty's tenant and that 1302 Realty did not supervise or control the work being performed. Moreover, the record was devoid of evidence that either 1302 Realty or its tenant had reason to know of any propensity by plaintiff's employer to provide unguarded power tools to its workers. Accordingly, those claims should have been dismissed. Torres v New York City Hous. Auth. November 10, 2021 Appellate Division, Second Department Plaintiff, an employee of nonparty Universal, was allegedly injured when he fell from a scaffold while performing asbestos abatement work at defendant’s building. At the time of the accident, plaintiff was placing plastic on the facade of the building when he allegedly stepped into a gap between two erected scaffolds, causing him to fall fifteen feet to the ground. The trial court denied plaintiff's summary judgment motion on his Labor Law § 240(1) claim and on his Labor Law § 241(6) claim that was predicated on an alleged violation of Industrial Code § 23-5.1(j). Labor Law § 240(1) (MAS) The Second Department affirmed the trial court’s order denying summary judgment to plaintiff, albeit on different grounds. Plaintiff relies solely on his General Municipal Law § 50-h hearing testimony and deposition testimony, which established that he fell from a scaffold. He failed to address whether there were scaffold rails, possible tie off points for a harness, or some alternative fall protection. Without more, plaintiff’s proof 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” are insufficient to establish prima facie entitlement to judgment as a matter of law on the issue of liability under § 240(1). PRACTICE POINT: To establish liability under Labor Law § 240(1), a plaintiff must demonstrate a violation of the statute and that such violation was a proximate cause of his or her injuries. In this case, plaintiff failed to offer any proof that the scaffold he was using lacked any safety railings or that he was not provided with any fall protection, and that the failure by his employer or defendant to provide such protection was a proximate cause of his injuries. Labor Law § 241(6) (TPW) The Second Department affirmed the trial court’s denial of plaintiff's motion for summary judgment on the issue of liability on Labor Law § 241(6) predicated upon 12 NYCRR § 23-5.1(j) as plaintiff failed to establish that the scaffold lacked safety railings in violation of that regulation and that such violation was a proximate cause of his injuries. As plaintiff failed to meet his prima facie burden, the motion was properly denied on the merits without regard to the sufficiency of defendant's opposition papers. Buckley v 18 E. Main St., LLC November 24, 2021 Appellate Division, Third Department Plaintiff was walking home along the sidewalk next to a gas station when she stepped on a stone, fell and twisted her ankle. On the day of the fall, defendant had been performing an ongoing excavation contract to remove old gas tanks and install new ones, which involved digging up dirt and rocks from around the old tank and backfilling new stones into the hole after the tanks had been installed. The trial court granted the motion by defendant for summary judgment dismissing the second amended complaint against it. Labor Law § 200 and Common-Law Negligence (ESB) The Third Department reversed the trial court’s order, finding that defendant failed to meet its burden of establishing the absence of any material questions of fact. The Court noted that, although there is no direct evidence that defendant caused that particular rock to be on the sidewalk, viewing the evidence in the light most favorable to plaintiff, as the nonmoving party, circumstantial evidence raises the possibility that while defendant was excavating thousands of stones, at least one of them could have ended up on the sidewalk. Therefore, defendant has failed to demonstrate that it did not “launch a force or instrument of harm.” Eherts v Shoprite Supermarkets, Inc. November 24, 2021 Appellate Division, Third Department Plaintiff, a plumber, was called to defendant’s supermarket to determine the cause of the store's low/no water pressure. Plaintiff’s company was under contract with defendant to provide plumbing services in defendant's stores. Upon inspecting the premises, plaintiff determined that it was necessary to turn off the hot water heater. To access the heater, plaintiff had to climb a ladder placed against inventory shelving units and then step across the shelves onto a cooler. Each shelf was eight feet in length and thirty inches deep, affixed to the wall by screws and supported by threaded metal rods hanging from the ceiling that were attached to the outer edge of the shelf. As plaintiff stepped from the ladder onto one of the shelves to access the hot water heater, the shelf detached from the wall, causing him to fall. The trial court partially granted defendant’s motion to dismiss the Labor Law § 240(1) claim, denied defendant's motion for summary judgment dismissing the Labor Law § 200 claim and denied plaintiffs' cross motion for partial summary judgment. Labor Law § 240(1) (MAS) The Third Department reversed the trial court and held the hot water heater was a “structure” within the meaning the statute. Thus, the issue becomes whether plaintiff was engaged in repair work or routine maintenance. The Court held that plaintiff was responding to an isolated and unexpected event, i.e., to address a low/no water pressure issue at the store caused by a municipal water main break. Accordingly, the Court determined plaintiff was engaged in repair work at the time of his accident and thus bringing his conduct within the extraordinary protections of Labor Law § 240(1). PRACTICE POINT: A “structure” is any production or piece of work artificially built up or composed of parts joined together in some definite manner, including: a utility pole with attached hardware and cables, a ticket booth at a convention center, a substantial free-standing Shell gas sign, a shanty located within an industrial basement used for storing tools, a crane used for construction, a power screen being assembled at a gravel pit, a pumping station, a utility van, a window exhibit at a home improvement show, and a water heater. Labor Law § 200 and Common-Law Negligence (ESB) The Third Department affirmed denial of the § 200 and common-law negligence claims. It held, where, as here, the accident occurred as a result of an alleged dangerous condition on the premises, an owner who retains control of the premises may be liable under Labor Law § 200 if the owner “created the condition or had actual or constructive notice of it and failed to remedy the condition within a reasonable amount of time.” The evidence from plaintiff demonstrated that the shelving units had been in place since he started servicing the defendant's store in 2001. In his deposition, defendant's store manager, confirmed that plaintiff and his associates had previously used the shelving units to access the hot water heater, explaining that, to his knowledge, that was the only practical means of accessing it. The manager confirmed that the shelving units were present "all the time throughout the approximate seven years that [he] worked" at the location, he did not know who had installed them and that, if anything was damaged on the premises, he would submit a work order for someone to come fix it. Based on this, the Court held that, given the acknowledged use of the shelf to access the heater over an extended period of time, defendant failed to demonstrate that it lacked actual or constructive knowledge that the shelf presented a dangerous condition. Branch v 1908 W. Ridge Rd, LLC November 12, 2021 Appellate Division, Fourth Department Plaintiff was injured while working to replace the roof at the Rochester Airport Marriott hotel. He was injured while lifting a large metal structure six to eight inches off the surface of the roof so that his coworkers could apply new roofing material underneath. The trial court granted plaintiff’s summary judgment motion on the Labor Law § 240 (1) claim and denied the cross- motion of Rochester Airport Marriott, EJ Delmonte and Delmonte Hotel (collectively defendants) for summary judgment dismissing the amended complaint against them. Labor Law § 240(1) (MAS) The Fourth Department unanimously reversed the trial court’s order and granted summary judgment to defendants because although plaintiff’s back injury was “tangentially related to the effects of gravity upon the structure he was lifting, it was not caused by the limited type of elevation-related hazards encompassed by Labor Law § 240(1). The Court deemed plaintiff’s injuries resulted from a routine workplace risk of a construction site and not a pronounced risk arising from construction work site elevation differentials. PRACTICE POINT: Remember the four elements of a labor law claim: appropriate plaintiff, appropriate defendant, appropriate project, and elevation-related/gravity-related risk. Here the fourth element is missing, since plaintiff’s injury-producing work did not involve a failure to provide adequate protection against a risk arising from a physically significant elevation differential. Abreu v Frocione Props., LLC November 19, 2021 Appellate Division, Fourth Department Plaintiff was injured while working on the construction of a food distribution warehouse. He and a coworker were installing a pallet rack shelving system when unassembled segments of the rack tipped over onto his legs. The trial court granted defendants’ summary judgment motions seeking dismissal of the second amended complaint. Labor Law § 241(6) (TPW) The Fourth Department unanimously affirmed the trial court’s order as plaintiff only challenged the decision with respect to one section of the Industrial Code, i.e., 12 NYCRR 23-2.1 (a) (1), which relates to “[s]torage of material and equipment,” and requires, inter alia, that “[m]aterial piles shall be stable under all conditions.” However, defendants established as a matter of law that 12 NYCRR 23-2.1 (a) (1) is inapplicable because, at the time of the accident, the rack segments that caused plaintiff's injuries were in use and were not in storage. Labor Law § 200 and Common-Law Negligence (ESB) The Fourth Department affirmed dismissal of the Labor Law § 200 and common-law negligence claims. It held that defendants established, as a matter of law, that the accident occurred as a result of the manner in which the work was performed, not from a dangerous condition on the premises. Further, defendants demonstrated that they did not actually direct or control the work of installing the racks. Even if Food Tech and Ogden may have exercised general supervision of the work site as a whole, the Court noted, it is well settled that the right to generally supervise the work, stop the contractor's work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient to impose liability under Labor Law § 200 or for common-law negligence. Kelley v Episcopal Church Home & Affiliates, Inc. November 19, 2021 Appellate Division, Fourth Department Plaintiff was injured on a construction site while delivering and installing appliances. He and a coworker were hauling the appliances on handcarts up a flight of stairs, with the coworker at a higher elevation than plaintiff. When the coworker’s back gave out, the coworker let go of his handcart, resulting in the cart and appliances falling down the stairs and striking plaintiff. Episcopal owned the property and hired Lecesse as the general contractor, who had entered into a master subcontract agreement (MSA) with Whirlpool to supply and install appliances on the project. Whirlpool subcontracted with plaintiff's employer to deliver and install those appliances. The trial court granted plaintiffs’ summary judgment motion on the Labor Law § 240(1) claim, denied the motion of Episcopal and Lecesse and the cross motion of Whirlpool to dismiss the Labor Law § 240(1) claim as against them, and granted the motion of Episcopal and Lecesse on their contractual indemnification claim against Whirlpool. Labor Law § 240(1) (MAS) The Fourth Department unanimously affirmed the trial court’s order as plaintiffs met their burden of establishing as a matter of law that plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential. Although Whirlpool submitted an affidavit from an expert biomechanist, who opined that no additional safety devices were needed, the expert's opinion was based only on what is typical or common in the delivery and installation of appliances, and “evidence of industry practice is immaterial. PRACTICE POINT: When submitting expert affidavits in opposition to summary judgment motions, it is critical to ensure your expert addresses the requirements of each Labor Law claim alleged in your case, and doesn’t focus solely on industry standards or customary practices and procedures. Conducting early investigations can be key to identifying the right circumstances to retain an expert and may provide the expert with the opportunity to physically inspect the accident scene to support their opinions. Indemnity Issues in Labor Law (BFM) The Fourth Department affirmed the trial court’s granting of Episcopal’s and Lecesse’s motion for contractual indemnification. The Court looked to the master subcontract agreement, which required that Whirlpool indemnify Episcopal and Lecesse for liabilities and expenses incurred in the performance of work under the master subcontract agreement “to the extent of Whirlpool's negligence or fault and/or the negligence or fault of any other party for whom Whirlpool is responsible.” Based on its determination that Whirlpool and its subcontractor failed to provide adequate safety devices to protect plaintiff, the Court found that Episcopal and Lecesse established as a matter of law that the accident was the fault of Whirlpool or a party for whom it was responsible. New York Industrial Code Regulations (EDA) 12 NYCRR 23-1.22(b)(4) Any runway or ramp constructed for the use of persons only which is located at, or extends to, a height of more than four feet above the ground, grade, floor or equivalent surface shall be provided with a safety railing constructed and installed in compliance with this Part (rule) on every open side. Regulation § 23–1.22(b)(4) establishes standards for construction of ramps for the use of people and sets forth specific standards sufficiently specific to support to support a § 241(6) cause of action. Jara v New York Racing Ass’n, Inc., 85 AD3d 1121, 927 NYS2d 87 [2d Dept. 2011]); inapplicable where demolition worker injured when he tripped and fell approximately 8 feet from top of partially demolished wall and pile of accumulated demolition debris which was blocking doorway Amantia v Barden & Robeson Corp., 38 AD3d 1167, 833 NYS2d 784 (4th Dept 2007) 1.22(b)(4) inapplicable where form worker used to assist him to climb down from truck’s cargo floor not four feet from ground below). Resich v Amadori Const. Co., Inc., 273 AD2d 855, 709 NYS2d 726 [4th Dept. 2000]). The Fourth Department held a genuine issue of material fact existed as to whether general contractor complied with regulation requiring safety railings on ramps at work sites, and whether failure to comply contributed to injuries of civil engineer who slipped on ramp. Hurwitz & Fine, P.C. 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