Affiliated with Studio Legale Casini, Milan and Viareggio, Italy

Winter 2011

LABOR LAW §§ 200, 240(1) & 241(6) - UPDATE

Prepared by: Thomas F. Segalla Brian T. Stapleton

During this reporting period (7/1/10 to 12/31/10), the Courts continue to grapple with the application of the Court of Appeals decision of Runner 13 N.Y.3d 599. There is obviously one school of thought in several of the Appellate Departments that Runner should be read broadly; whereas, in other Appellate Departments read Runner narrowly. It appears that the Court of Appeals will have to revisit the issues raised in Runner and provide some additional guidance.

Also, during this reporting period the New York State Legislature enacted the New York State Construction Industry Fair Play Act (Chapter 418) which provides under Labor Law §861-C that any person performing services for a contractor is presumed to be an employee of that contractor. This new statute will undoubtedly have an effect on such issues when raised in the context of civil litigation. (See discussion below). If you have any questions about any cases reported in this Update or questions concerning Labor Law §§200, 240(1) and 241(6) in general, please contact Tom Segalla at the above address; by phone at (716) 566-5480; or email at tsegalla@goldbergsegalla.com. You can also contact Brian Stapleton at 11 Martine Avenue, Suite 750, White Plains, New York 10606; by phone at (914) 798-5470; or by email at bstapleton@goldbergsegalla.com.

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GOLDBERG SEGALLA LABOR LAW LITIGATION GROUP COURT OF APPEALS 1. Alan Morton v. State of New York, 15 N.Y.3d 50, 904 N.Y.S.2d 350 (2010) (June 8, 2010).

Plaintiff was injured while working in a trench when a side wall caved in, injuring his right leg and foot. On this appeal, the main issue was whether the owner of the property was liable under Labor Law §241(6). The Court, in a 5-2 decision, found that the owner of the property was not liable and noted:

. . . we have consistently held that ownership of the premises where the accident occurred -- standing above -- is not sufficient enough to impose liability under Labor Law §241(6) where the property owner did not contract for the work resulting in the plaintiff’s injuries . . . .”

While ownership is a necessary condition, it is not a sufficient one because there must be “some nexus between the owner and the worker, whether by lease agreement or grant of an easement, or other property interest . . . .”

Practice Note: In reaching its decision, the majority of the Court discussed at length its prior rulings on ownership and liability under the Labor Law. The dissent, however, noted that the statutory law does not contain any provision ‘conditioning’ the liability of an owner upon the party’s consent.

2. Wanderlei Gasques v. State of New York, 15 N.Y.3d 869 (2010) (Oct. 21, 2010). Plaintiff was injured while repainting a bridge, when his hand was trapped between the scaffold and the leg of the bridge, as the scaffold was ascending. The scaffold was moving under the impetus of its motor. The Court, citing to Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 604, dismissed the §240(1) because “the injury was not the direct consequence of the application of the force of gravity to an object or worker . . . .” The §241(6) claim was dismissed because the regulations relied on by the plaintiff under 12 N.Y.C.R.R Part 23 were not specific, positive commands.

Practice Note: In order to determine which regulations have been held to be specific, positive commands, the New York Pattern Jury Instructions should be referenced.

3. Judith Nostrom v. A.W. Chesteron Company, 2010 N.Y. LEXIS 3285 (Nov. 18, 2010). The

issue presented on this appear is “whether vicarious liability under Labor Law §241(6) may be predicated solely on a violation of regulations contained in part 12 of the Industrial Code.” The Court concluded that it may not. The plaintiff was injured when he was allegedly exposed to asbestos and contended that a §241(6) claim could be predicated on a violation of

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Part 12 of the Industrial Code; however, the Court held that liability is only established under Part 23.

Practice Note: While the Court did not have to reach an analysis of whether the applicable regulations were specific enough, in order to establish a violation of §241(6), the relevant regulation under part 23 must be sufficiently specific.

4. Francesco Strangio v. Sevenson Environmental Services, Inc., 2010 N.Y. LEXIS 3467 (Nov.

30, 2010). Without reciting the facts of the case, the Court affirms the denial of the summary judgments motions of the defendants and third party defendant which sought a dismissal of the plaintiff’s Labor Law §240(1) claim.

Practice Note: The Court affirmed the order of the Appellate Division 4th Dept.; therefore, in order to assess the impact of this decision the Record and Briefs on Appeal should be reviewed.

FIRST DEPARTMENT 1. Melissa Hernandez v. 42/43 Realty LLC, 74 A.D.3d 558, 903 N.Y.S.2d 367 (1st Dept. 2010)

(June 15, 2010). Plaintiff was injured while working on a ladder that she had positioned and, checked to ensure that it was firmly planted. However, as she climbed the ladder, the ladder started to shake and toppled over. The court granted the plaintiff’s motion for summary judgment under §240(1), holding that the owner was absolutely liable unless the plaintiff’s action were the sole proximate cause of the plaintiff’s injuries. The court also noted that contributory negligence does not exonerate a defendant.

Practice Note: The defendant failed to raise issues of fact that disputed the plaintiff’s version of what took place. Testimony of a foreman, someone at the scene or an expert would be sufficient.

2. James A. McCay v. J.A. Jones-GMO, LLC, 74 A.D.3d 615, 904 N.Y.S.2d 30 (1st Dept. 2010)

(June 17, 2010). Plaintiff was injured when falling bricks caused him to step off a platform into a 6’ deep by 4’ to 5’ wide hole. At the time of his injury, plaintiff was carrying a bundle of steel rebar beams. The court held that these facts were sufficient to show that his injuries were caused by an “elevation related risk.” Therefore, plaintiff’s motion under §240(1) was granted.

Practice Note: An unsworn hospital record on which the defendants relied did not create a question of fact nor was it inconsistent with the plaintiff’s version of how the accident happened.

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3. Eugeniusz Minorczyk v. Dormitory Authority of the State of New York, 74 A.D.3d 675, 904 N.Y.S.2d 383 (1st Dept. 2010) (June 24, 2010). One of the defendants was the eyes, ears and voice of the owner and had complete supervisory authority over the projects and therefore was a statutory agent of the owner for the purposes of §241(6). With respect to liability under §200 and common law negligence which was based on the existence of a dangerous condition, liability turned on whether the defendants had notice of the condition. The jury found that the defendants had notice which the court held was based on sufficient evidence. The court also held that even though one of the defendants was negligent it was not precluded under GOL §5-322.1 from obtaining partial indemnification under its contract with the other negligent defendant.

Practice Note: The contract provided that one defendant was entitled to indemnification for the negligence of the other defendant and also specifically barred indemnification of the first defendants’ own negligence.

4. 2165 & Milton Moracho v. Open Door Family Medical Center, Inc., 74 A.D.3d 657, 906

N.Y.S.2d 7 (1st Dept. 2010) (June 24, 2010). Plaintiff, an asbestos worker, was injured when he fell through an open skylight on the roof of a building. The court held that the trial court improperly granted the plaintiff’s motion for summary judgment under §240(1) because of the conflicting testimony as to whether a safety vest was available, whether the plaintiff was aware of the expectations that he would tie off and “he chose for no good reason not to do so.”

Practice Note: The court also considered and defined the duties of a general contractor.

5. Charles McCoy v. Metropolitan Transportation Authority, 75A.D.3d 428, 904 N.Y.S.2d 50 (1st Dept. 2010) (July 1, 2010). The court on this appeal held that the trial court correctly held that the equipment that injured the plaintiff was a “mobile crane” within the applicable Industrial Code regulation.

Practice Note: The plaintiff and defendant both presented expert testimony on the issue whether the equipment was a mobile crane.

6. Flavio Atiencia v. NBB Co. II, LLC, 75 A.D.3d 424, 904 N.Y.S.2d 59 (1st Dept. 2010) (July

1, 2010). At issue on this appeal is whether one of the defendants was a general contractor and therefore, liable under the Labor Law. Because the defendant had “complete control” and “overall control” of the project, supervised the construction site and enforced all safety regulations, it was liable under §240(1).

Practice Note: Not all contractors or entities on the site are liable under the Labor Law.

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7. Rui Salsinha v. Malcolm Pirnie, Inc., 76 A.D.3d 411, 906 N.Y.S.2d 532 (1st Dept. 2010) (Aug. 3, 2010). The defendant a construction manager contended on this appeal that it was not liable under the Labor Law. The court held that there were issues of fact as to whether the defendant was subjected to statutory liability. Specifically, the court noted that there was testimony that the construction manager could choose a subcontractor and was in charge of construction. The plaintiff’s §200 claim, which arose out of manner in which the plaintiff’s work was being performed, was dismissed because defendants did not exercise control over plaintiff’s work.

Practice Note: The court also considered whether various Industrial Codes (12 N.Y.C.R.R.) provisions were applicable or sufficiently specific to permit recovery under §241(6).

8. John Lombardo v. Park Tower Management, Ltd., 76 A.D.3d 497, 907 N.Y.S.2d 196 (1st

Dept. 2010) (Aug. 31, 2010). Plaintiff while descending into a basement to repair a refrigeration unit was injured when a step 18” above the basement floor broke. At issue on this appeal was whether the stair case was an “other device” within the meaning of §240(1) or a permanent structure not designed as a safety device against elevation – related risks. In a 3-2 decision, the majority held that the stair case was neither a safety device nor a temporary structure under §240(1). The majority rejected the Runner, 13 N.Y.3d 599 case which was relied on by the dissent and noted that a minor elevation was involved.

Practice Note: The majority decision reviews those cases that have rejected §240(1) liability where a “modest” height differential is involved.

9. Richard Makarius v. Port Authority of New York and New Jersey, 76 A.D.3d 805, 907

N.Y.S.2d 658 (1st Dept. 2010) (Sept. 7, 2010). In a decision that had multiple opinions, the court was presented with a fact pattern where the plaintiff was injured as one of his coworkers were attempting to repair a water pipe when a transformer that had been affixed to the wall fell 6’ to 7’ striking the plaintiff who was working on the ground level. The majority of the court held that the facts did not fall squarely within the Runner criteria.

Practice Note: This decision highlights the confusion that surrounds the application of Runner. Note a de minimis elevation differential is insufficient.

10. George Barnes v. City of New York, 2008 N.Y.S.2d 579 (1st Dept. 2010) (Oct. 14, 2010).

The activity being performed by the plaintiff at the time of his injury was not a protected activity under the §240(1). The work of disconnecting power cables was not protected, but was a separate phase of work from the construction.

Practice Note: Not every activity is a protected activity under the Labor Law.

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11. Frank Solano v. The City of New York, 909 N.Y.S.2d 357 (1st Dept. 2010) (Oct. 26, 2010). A plywood plank was deliberately dropped from a window and struck the plaintiff causing injury. The court held that the plank did not constitute a “falling object” under §240(1).

Practice Note: Not every injury or object that falls or causes any injury is protected under the Labor Law.

12. Dhanraj Rajkumar v. Budd Contracting Corporation, 909 N.Y.S.2d 453 (1st Dept. 2010)

(Oct. 28, 2010). The plaintiff was injured while performing interior decorating work (i.e. manfacture and hanging a 300 lb. mirror). The court dismissed the §241(6) claim because the work was not in the context of construction, demolition or excavation work. The court noted that, even if the work fell within a protected activity, the Industrial Code relied upon by the plaintiff were inapplicable and therefore, the §241(6) claim was not viable. The §200 and common law negligence claims were dismissed because the defendants did not have actual or constructive notice of the defect.

Practice Note: Again not all activities are protected under the Labor Law.

13. Kathleen Rice v. West 37th Group, LLC, 2010 N.Y. App. Div. LEXIS 8484 (1st Dept. 2010)

(Nov. 16, 2010). Plaintiff, a steamfitter, was injured when he fell from a ladder that he and an employee had positioned in a stairwell. Plaintiff had been on the ladder for 30 minutes when he heard a crack and he fell. The sole question before the court was whether the plaintiff’s attempt to perform the task without using a baker scaffold was the sole proximate cause of the accident. Citing to the Court of Appeals decisions on sole proximate cause, the court noted that liability under §240(1) will be absolved where a worker attempts to perform a task at an elevation without proper protection, if the proper safety device was readily available and it would have been the worker’s normal and logical response to get it. The court disagreed with the defendant’s argument that the accident was caused by the sole proximate cause of the plaintiff.

Practice Note: The application of the sole proximate cause defense is fact specific and the defendants failed in this case to meet its burden.

14. Donald Kolb v. Beechwood Sedgewick, LLC, 2010 N.Y. App. Div. LEXIS 8489 (1st Dept. 2010) (Nov. 16, 2010). After opening an elevator door which the plaintiff voluntarily offered to do, he stepped into the elevator and fell 9 to 10 feet into the pit. The court dismissed the plaintiff’s negligence claim because the plaintiff’s independent and intervening conduct was entirely unforeseeable and he was the only one at fault.

Practice Note: The court refused to allow an amendment to the complaint where the plaintiff asserted Labor Law causes of action because they were new theories of liability and not an amplification of other theories.

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15. Lindemberg Cevallos v. Morning Dun Realty, Corp., 2010 N.Y. App. Div. LEXIS 8543 (1st Dept. 2010) (Nov. 18, 2010). The defendant, an absentee owner, sought dismissal of the §240(1) claim on the grounds that the plaintiff’s negligence was the sole proximate cause of the accident and that defendant as an absentee owner was not liable. The court held that the plaintiff’s actions were not the sole proximate cause because the defendant’s failure to provide a safe ladder was also a cause. With respect to the “absentee owner” issue, the court held that the defendant’s breach of its statutory duty caused the accident.

Practice Note: The absentee owner had a managing agent on site, who acted for the owner.

16. Joseph Delaney v. The City of New York, 2010 N.Y. App. Div. LEXIS 8539 (1st Dept. 2010)

(Nov. 18, 2010). Plaintiff was injured when he attempted to enter a lane of traffic on a bridge where he was working as an ironworker. He was struck by a pickup truck owned and operated by his employer. The basis for the plaintiff’s §200 claim against the defendant owner of the bridge was the method of performing the work. The §200 claim was dismissed because the defendant did not have supervisory control over the method of work. The activity being performed was not inherently dangerous; therefore, proof of supervising control was still necessary. Similarly, the court noted that an OSHA violation cannot form the basis of a §200 claim.

Practice Note: Where Industrial Codes relied on by the plaintiff are inapplicable to the facts, a §241(6) claim is not viable.

17. Hugo Ramirez v. Cynthia Shoats, 2010 N.Y. App. Div. LEXIS 8527 (1st Dept. 2010) (Nov.

18, 2010). The majority (3-2) of the court held that there was conflicting testimony concerning where the plaintiff fell and the defendant’s testimony concerning where the ladder was located. In addition, the majority rejected the dissent’s position that a permanently installed structure can be a statutory device under §240(1).

Practice Note: The court held that the plaintiff was entitled to the protection of Labor Law §241-a.

18. Jorge Gasper v. LC Main LLC, 2010 N.Y. App. Div. LEXIS 8972 (1st Dept. 2010) (Dec. 2,

2010). The court held that there were issues of fact to preclude the dismissal of the plaintiff’s §241(6) claim. In reaching its decision, the court rejected the deposition testimony of the defendant’s expert because he utilized an unauthorized photograph and mischaracterized the plaintiff’s testimony.

Practice Note: The court will not grant a motion for summary judgment where there are issues of fact as to how the accident occurred and whether our devices were readily available.

19. Michael Nolan v. J.C.S. Realty, LLC, 2010 N.Y. App. Div. LEXIS 8959, 2010 N.Y. App.

Div. LEXIS 8958 (1st Dept. 2010) (Dec. 2, 2010). The court dismissed the plaintiff’s §200

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and common law negligence causes of action because the defendant did not exercise supervisory control over the activity that brought about plaintiff’s injury.

Practice Note: The court also noted that two of the defendants did not operate as separate corporate entities.

20. John Hamill v. Mutual of America Investment Corporation, 2010 N.Y. App. Div. LEXIS

9090 (1st Dept. 2010) (Dec. 7, 2010). At the time of his injury, the plaintiff was standing on a ladder replacing acoustic ceiling tiles. Plaintiff fell from a ladder that shifted. The court held that there were issues of fact as to whether the plaintiff was engaged in repair work or routine maintenance. Further, the court held that there were a triable issue of fact as to whether the plaintiff’s injury was attributable to defendant’s failure to provide adequate protective devices or caused by the plaintiff’s sole proximate cause.

Practice Note: The §§241(6) or 200 causes of action were dismissed as they were unopposed.

21. Christian Vasquez v. Urbahn Associates, Inc., 2010 N.Y. App. Div. LEXIS 9126 (1st Dept.

2010) (Dec. 9, 2010). In reaching its decision that §241(6) was violated, the majority of the court (3-2) reviewed various Industrial Codes and concluded that there was a violation of at least one relevant code section. They also found issues of fact as to whether §240(1) was violated because permanent stairs and whether the collapse was foreseeable.

Practice Note: The dissent contends that the majority misreads §240(1) and contends that the plaintiff bears the burden of demonstrating that a particular injury was foreseeable.

SECOND DEPARTMENT 1. William Harper v. Holland Addison, LLC, 75 A.D.3d 495, 903 N.Y.S.2d 753 (2d Dept. 2010)

(July 6, 2010). The court held that the defendant was entitled to the application of one and two-family exemption to §240(1) because defendant did not direct or control the work. With respect to the §200 claim, because the accident arose from the methods of plaintiff’s work and the defendant did not exercise any supervision or control, the court dismissed that claim.

Practice Note: The plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion.

2. Luis F. Ortiz v. Varsity Holdings, LLC, 75 A.D.3d 538, 906 N.Y.S.2d 766 (2d Dept. 2010)

(July 13, 2010). Plaintiff was standing on or near the ledge of a 6’ high dumpster and was injured when he slipped and fell backwards to the sidewalk. Without reciting the basis of its decision, this court affirmed the dismissal of the §240(1) cause of action.

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Practice Note: The Record and Briefs on appeal should be reviewed in order to understand the impact of the decision. Also, the court granted the plaintiff permission to appeal to the Court of Appeals.

3. Dario Temperino v. DRA, Inc., 75 A.D.3d 543, 904 N.Y.S.2d 767 (2d Dept. 2010) (July 13,

2010). The plaintiff was injured when he allegedly fell from a ladder during his work on a renovation project. The court noted that in order to hold a contractor liable under §240 there must be a showing that it had the authority to supervise and control the work giving rise to the duties being performed. Specifically, the determinative factor on the issue of control is whether the contractor has control of the work being done and the authority to insist that proper safety practices be followed. One of the defendants was not a general contractor or statutory agent and therefore, not liable under §§240(1) and 241(6).

Practice Note: In determining whether a contractor is a general contractor, the court looks at various factors (i.e. who selected, paid and coordinated the contractors, scheduled and monitored the work, ensured that its safety guidelines were followed, and retained authority to stop the work.

4. Richard J. Erickson v. Cross Ready Mix, Inc., 25 A.D.2d 524, 906 N.Y.S.2d 54 (2d Dept.

2010) (July 13, 2010). With respect to the §241(6) claim, the court dismissed certain portions of the claim based upon various sections of the Industrial Code because the sections were inapplicable or were not properly raised. However, with respect to another Industrial Code the court held that there was a potentially viable claim.

Practice Note: In order to establish a claim under §241(6), the injured plaintiff must prove that a regulation under 12 N.Y.C.R.R. Part 23 is applicable and involve a specific, positive command or a concrete specification of a regulation.

5. Richard J. Erickson v. Cross Ready Mix, Inc., 75 A.D.3d 519, 906 N.Y.S.2d 284 (2d Dept.

2010) (July 13, 2010). The court considered the viability of the §200 claim and common law negligence claim and the §241(6) claim. With respect to one defendant, the plaintiff’s §200 claim which arose out of the alleged defects or dangers resulting from the subcontractor’s methods or materials, the court dismissed that claim because that defendant did not have authority to supervise or control the work which brought about the plaintiff’s injury. With respect to another defendant, the court refused to dismiss the §200 claim because that defendant failed to establish that neither the owner nor general contractor conferred authority upon it to supervise or direct the operations. As to another defendant, the court refused to dismiss the common law negligence cause of action because there were triable issues of fact as to whether the employees of that defendant created an unreasonable risk of harm that was the proximate cause of the injured plaintiff’s injuries.

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Practice Note: Not all contractors on a construction site are liable under the Labor Law. The contractual arrangement between the various activities and the actual activities on the site have to be considered in assessing liability.

6. Flor Barrios v. City of New York, 75 A.D.3d 517, 905 N.Y.S.2d 255 (2d Dept. 2010) (July

13, 2010). Certain defendants contended on this appeal that they were not liable under §240(1) because they were a prime contractor not in contractual privity with the plaintiff’s employer and were a construction manager. The court held that even though the defendant was not in contractual privity it was delegated a significant degree of authority to supervise and oversee onsite safety. The court reviewed the contract and onsite activity of the defendant and determined that it was a statutory agent and therefore liable under §240(1).

Practice Note: The court noted that the label of construction manager v. general contractor is not necessarily determinative, but the question is whether the construction manager was delegating supervisory control and authority over the work being performed when the plaintiff was injured.

7. Dorian Navarro v. City of New York, 75 A.D.3d 590, 905 N.Y.S.2d 258 (2d Dept. 2010)

(July 20, 2010). Plaintiff, prior to his injury, had been caulking windows and while doing so he dropped one of his tools through a metal grate in the ground. While retrieving the tool from inside the building, a custodian told the plaintiff to use a ladder which he propped against the window to retrieve the tool. The ladder slipped and the plaintiff fell to the floor. Plaintiff noticed grease on the ground. The Supreme Court granted the defendant’s motion for summary judgment dismissing the §240(1) cause of action which was affirmed because the accident was too far removed from any construction related activities and too attenuated from the hazards associated with an enumerated activity to fall within the ambit of protection provided by those statutes. This court reversed the Supreme Court’s dismissal of the §200 and common law causes of action holding that the two of the defendants established prima facie that they did not create or have notice of the alleged defect in the ladder or of the slippery grease condition on the floor.

Practice Note: With respect to §200 and common law negligence claims, the practitioner must differentiate between a manner or method claim and a dangerous condition claim.

8. Federic P. Shaw v. RPA Associates, 75 A.D.3d 634, 906 N.Y.S.2d 574 (2d Dept. 2010) (July

27, 2010). Plaintiff was allegedly injured at a construction site when the dump truck that he was operating capsized and loose items in the cab of the truck pinned him down. The courts dismissed the §240(1) claim and held that in driving the truck, the plaintiff was not subjected to the pronounced risks arising from construction work site elevation differentials. Also, the court noted that the plaintiff was not exposed to any risk that the safety devices referenced in §240(1) were meant to protected.

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Practice Note: OSHA violations cannot constitute the basis for a §241(6) claim.

9. Albert Guilbe Montalvo v. Mumpus Restorations, Inc., 76 A.D.3d 516, 905 N.Y.S.2d 659 (2d

Dept. 2010) (Aug. 3, 2010). As the plaintiff exited the building through a side door, the plaintiff was allegedly struck and injured by a bucket of roofing adhesive that fell from the roof. The court denied the defendant’s motion seeking to dismiss the §200 and common law causes of action because there were issues of fact as to whether the defendant placed the bucket on the roof.

Practice Note: In reaching its decision, the court considered the doctrine of res ipsa loquitur and held that there were issues of fact as to the various elements of the doctrine.

10. Michael D’Alto, Jr. v. 22-24 129th Street, LLC, 76 A.D.3d 503, 906 N.Y.S.2d 79 (2d Dept.

2010) (Aug. 3, 2010). Plaintiff was allegedly injured when he fell while climbing down from the top of a cement truck parked near the entrance of a construction site. The trial court improperly dismissed the §240(1) claim even though the plaintiff was 100 feet from the construction site. The court noted that the work being performed was “. . . necessitated by virtue of the [cement being prepared for use] in the construction [site] and was incidental to its movement [to] the construction area . . . .” The court also considered the contractual indemnification between the various defendants and granted some claims and denied others.

Practice Note: A lease agreement can contain an indemnification provision that is enforceable.

11. Zhu Wei Shi v. Jun Lan Zhang, 76 A.D.3d 558, 907 N.Y.S.2d 32 (2d Dept. 2010) (Aug. 10,

2010). Plaintiff at the time of his injury was standing on a ladder that twisted, bent and collapsed, causing him to fall. The court granted the plaintiff’s motion for summary judgment on §240(1) holding that the plaintiff established a prima facie case. The defendant failed to raise a triable issue of fact as to whether a violation of §240(1) occurred or whether such violation was a proximate cause of the plaintiff’s injuries.

Practice Note: Once the plaintiff establishes a prima facie case, the burden shifts to the defendant to raise triable issues of facts.

12. Jimmy Rivera v. 15 Broad Street, LLC, 76 A.D.3d 621, 906 N.Y.S.2d 333 (2d Dept. 2010)

(Aug. 17, 2010). At issue on appeal was whether the machine being used by the plaintiff fell under the Industrial Code relied on by the plaintiff to establish a violation of §241(6). The court held that the Industrial Code was inapplicable. With respect to the §200 and common law negligence causes of action, the court dismissed these claims because the defendants did not have the authority to supervise or control the performance of the work.

Practice Note: The plaintiff’s injuries were a result of the method of his work, as opposed, to a dangerous condition at the worksite.

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13. Teresa Slikas v. Cyclone Realty, LLC, 908 N.Y.S.2d 117 (2d Dept. 2010) (Sept. 12, 2010).

The plaintiff was injured when she tripped and fell over a metal crowbar while in the course of employment. Plaintiff sued the owner of the property under common law negligence and §§200 and 241(6). In reaching its decision the court considered the question of whether a mislaid tool constitutes a “premises condition” triggering one liability standard, or whether it instead implicates the “means and methods” of the contractor’s work, triggering a different liability standard. The court concluded that this case should be measured by the legal standard applicable to premises condition. The defendants were unable to demonstrate prima facie that it lacked constructive notice. Further, the court refused to apply to workers’ compensation bar because the defendant failed to establish that the plaintiff was a special employee.

Practice Note: As to the workers’ compensation defense, the court looks at various elements in determining whether an injured person is a special employee.

14. Edison Clavijo v. Universal Baptist Church, 76 A.D.3d 990, 907 N.Y.S.2d 515 (2d Dept.

2010) (Sept. 22, 2010). At the time of his injury, the plaintiff was standing on a ladder drilling a hole into a cement wall. As he was drilling, the power tool twisted causing him to injure his arm. The court dismissed the §241(6) cause of action holding that some of the Industrial Codes were inapplicable or that others were not the proximate cause of plaintiff’s injuries (i.e. the failure to secure the ladder was not a proximate cause of the accident). As to the §200 claim, the court did not dismiss the claim because the defendants failed to establish, prima facie, that they did not have the authority to supervise or control the performance of the work.

Practice Note: The fact that a ladder was being used does not automatically involve a Labor Law violation.

15. Jason Pilato v. 866 U.N. Plaza Associates, LLC, 909 N.Y.S.2d 80 (2d Dept. 2010) (Oct. 5,

2010). Plaintiff received an electrical shock while he was replacing a ballast in a light fixture. The plaintiff sued the owner, managing agent and tenant under common law and §200 of the Labor Law. The court dismissed the plaintiff’s complaint, noting that the claim arose from the manner and method of the plaintiff’s work. Therefore, the applicable standard is whether the defendants had authority to supervise or control the performance of the plaintiff’s work. Such authority was lacking in this case.

Practice Note: Mere general supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work is insufficient to impose liability.

16. Joel Fried v. Always Green, LLC, 2010 N.Y. App. Div. LEXIS 7639 (2d Dept. 2010) (Oct.

19, 2010). Plaintiff was injured when he was struck on the head by a bag of construction debris that had been thrown from a roof by a worker. At the time of his injury the plaintiff

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was standing 10 to 18 feet from a dumpster. The court dismissed the §240(1) cause of action and noted that the bag of debris was not material being hoisted or a load which required securing. The court also dismissed the §200 and common law causes of action and noted that action arose out of an alleged defect in the methods or materials of the work. In such a case, absent the authority to supervise or control the performance of the work, the defendants cannot be liable. With respect to the §241(6) claim, the court found there were triable issues of fact as to one Industrial Code and therefore, did not dismiss that cause of action. The court dismissed the third-party summons and complaint because the defendant failed to prove that the injured plaintiff sustained a “grave injury.”

Practice Note: The defendant has the burden of proof as to whether the plaintiff sustained a “grave injury” in order to shift liability to plaintiff’s employer.

17. Mario Castellanos v. United Cerebal Palsy Association of Greater Suffolk, Inc., 909 N.Y.S.2d 757 (2d Dept. 2010) (Oct. 26, 2010). Plaintiff was allegedly injured when he fell off a defective ladder while renovating a house owned by the defendant. The court granted defendant’s motion for summary judgment dismissing the §§240(1) and 241(6) causes of action. The court held that the defendant was exempt from liability under those sections under the one or two-family dwelling exemption. In applying the exemption, the court noted that the defendant did not direct or control the work and the property was residential and not commercial. (i.e. not income producing).

Practice Note: The nature and purpose of the work is analyzed by the court when considering this exemption.

18. Eric Paez v. Hemal Shah, 909 N.Y.S.2d 664 (2d Dept. 2010) (Nov. 3, 2010). The court

dismissed the plaintiff’s complaint because the defendant established his prima facie entitlement to judgment as a matter of law under the Labor Law, by showing that he was neither an owner of, nor general contractor at, the subject premises.

Practice Note: Once a party has established its prima facie case, the burden shifts to the other party to submit evidence in admissible form to create a triable issue of fact.

19. Jerzy Pirog v. 5433 Preston Court, LLC, 910 N.Y.S.2d 167 (2d Dept. 2010) (Nov. 3, 2010).

The plaintiff injured his hand while he and his coworkers were placing pipes onto a stack of pipes located on the defendant’s property. The plaintiff’s employer used the defendant’s property to store construction-related materials. The court held that the plaintiff was not engaged in construction work within the meaning of §240(1) and was not working in a construction area. Further, the §200 claim was dismissed because the defendant did not have the authority to supervise or control the performance of the plaintiff’s work.

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Practice Note: Not all injuries to workers are protected under the Labor Law. An injured worker must be performing a protected activity.

20. Eric Paez v. Hemal Shah, 2010 N.Y. App. Div. LEXIS 8052 (1st Dept. 2010) (Nov. 3, 2010).

Plaintiff sustained an injury while operating an electric saw without a safety guard. The court dismissed the §241(6) claim by applying the homeowners’ exemption for owners of one and two-family dwelling and noting that the defendant neither directed nor controlled the plaintiff’s work. Because the accident arose from the means and methods of the work, the standard for a common law negligence claim is whether the defendant had the authority to supervise or control the workplace. Here the defendant did not have such authority.

Practice Note: In order to oppose a motion, a party must submit evidence in admissible form sufficient to raise a triable issue of fact.

21. Gary M. Nankervis v. Long Island University, 2010 N.Y. App. Div. LEXIS 8312 (2d Dept. 2010) (Nov. 9, 2010). Plaintiff was injured when he slipped on a pipe covered by debris while carrying cable. At issue on appeal was whether the Supreme Court improperly denied the defendants’ motion dismissing the common law negligence, §200 and §§240(1) and 241(6) causes of action. The court properly denied the motion nothing that because the claim arose out of a defective premises, the defendant had to prove that it neither created the dangerous condition nor had actual or constructive notice of it within a reasonable time to correct it. In this case, the Court noted that the defendant failed to meet its burden.

Practice Note: The court noted that certain of the Industrial Codes were inapplicable and that others were; therefore, the §241(6) claim was not dismissed.

22. Darrin Harsch v. City of New York, 2010 N.Y. App. Div. LEXIS 8449 (1st Dept. 2010) (Nov.

9, 2010). Plaintiff, a construction worker, was injured while moving a compressor from location to location when he tripped on soft, loose and uneven payment. At the time of the injury, the plaintiff had been excavating to the street where the gas service was located. The court dismissed the §240(1) claim because the plaintiff’s injuries were not the result of any height or gravity related risk. The court refused to dismiss the §200 and common law negligence cause of actions because the defendant failed to establish, prima facie, that it neither created nor had actual or constructive notice of the alleged dangerous condition. This case involved an alleged dangerous or defective condition on or at the subject premises and not a manner or methods case.

Practice Note: In a §241(6) case based on a defective premises, a defendant must establish, prima facie, that it neither created nor had actual or constructive notice of the alleged dangerous condition in slip and fall cases.

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23. Maria Cortez v. Northeast Realty Holdings, LLC, 2010 N.Y. App. Div. LEXIS 8209 (2d

Dept. 2010) (Nov. 9, 2010). Plaintiff was operating a lawnmower on property owned by the defendant and drowned when he fell into a retention pool at the base of the hill. Another defendant was the property manager that contracted with the plaintiff’s employer to perform landscaping services. The court denied the property owner’s motion to dismiss and noted -- “A landowner has a duty to exercise reasonable care in maintaining [its] property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff’s presence on the property.” The court also noted that the existence of an open and obvious dangerous condition goes to the plaintiff’s comparative fault. The court found there were issues of fact as to whether the owner maintained the property in a reasonably safe condition and whether the conduct of the plaintiff in operating the mower on the slope of the hill was the sole proximate cause. With respect to the claim against the defendant property manager, the court dismissed the plaintiff’s claim as it was not the owner of the property (i.e. did not have any interest).

Practice Note: The plaintiff had retained an engineering expert which the court allowed.

24. Aleksander Janda v. Michael Rienzi Trust, 2010 N.Y. App. Div. LEXIS 8593 (2d Dept.

2010) (Nov. 16, 2010). While working as a construction laborer, the plaintiff fell 12 feet onto his back injuring himself. The trial court had granted the plaintiff’s motion for summary judgment under §240(1). At issue on appeal was whether the jury verdict should be set aside under CPLR 4404(a) as excessive or whether the plaintiff’s claim for past and future lost wages should be barred under the Federal Immigration Reform and Control Act of 1986 because the plaintiff submitted false documentation to his employer. The court held that the awards for past and future lost earnings were excessive, but not barred under the federal act.

Practice Note: The court rejected the expert economists projections because his assumption was incorrect (i.e. no proof the plaintiff would have earned the hourly rate relied upon).

25. Stefan Gutman v. City of New York, 2010 N.Y. App. Div. LEXIS 8590 (2d Dept. 2010) (Nov.

16, 2010). Plaintiff and co-workers were attempting to move a 39 foot, 1300 lb. rail and they were using rail hooks. As they attempted to move the rail, the plaintiff’s hooks were not in place which caused the rail to fall 12” to 16” on the plaintiff’s leg. The court rejected the defendant’s contention that the height differential was insufficient to implicate §240(1). Citing to Runner, 13 N.Y.3d 599, the court noted that the elevation differential cannot be viewed or de minimis, particularly given the weight of the object and the amount of force. The court refused, however, to grant plaintiff’s motion for summary judgment under §240(1) because there were issues of fact as to whether the rail fell while being hoisted because of the absence or inadequacy of a safety device enumerated under the statute.

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Practice Note: Not all falling objects are covered by the Labor Law. Narducci, 96 N.Y.2d 259.

26. In the Matter of Dariusz v. City of Middletown, 2010 N.Y. App. Div. LEXIS 8653 (2d Dept.

2010) (Nov. 16, 2010). At issue on this appeal was the motion of the claimant to amend the Notice of Claim against a municipality under General Municipal Law §50-e(6) to add causes of action for §§200, 240(1) and 241(6). The court denied the motion to amend because the addition of these causes of action would have substantially altered the nature of the claims.

Practice Note: While amendments to pleadings are liberally allowed, amendments are not allowed which prejudice a party.

27. Scott Gonnerman v. Laura Huddleston, 2010 N.Y. App. Div. LEXIS 8831 (2d Dept. 2010)

(Nov. 23, 2010). The plaintiff, a truck driver, was injured while he was delivering a light pole to staging area for a construction project to improve lighting on a highway. The court held that the plaintiff had a viable §241(6) claim because the protection afforded workers is not limited to construction of buildings, but extends to workers involved in, among other things, road construction projects. Further, the court noted that protection extends to areas where materials or equipment are being prepared for use, as opposed to areas where they are merely stored for future use. The light poles were delivered to the staging area for assembly. The court found issues of fact as to whether the Industrial Codes had been violated.

Practice Note: The plaintiff has the burden to prove that an Industrial Code was applicable and violated.

28. Hubert Nowakowski v. Douglas Elliman Realty, LLC, 2010 N.Y. App. Div. 8796 (2d Dept.

2010) (Nov. 23, 2010). The court held that at the time of the accident, the plaintiff was engaged in a protected activity. Specifically, at the time of his fall from a stepladder, the plaintiff was removing a light fixture from the ceiling which he had determined several days before that the fixture needed to be removed and repaired. In reaching its decision the court noted that this activity was not routine maintenance as a result of wear and tear but was repair.

Practice Note: There can be a fine line between routine maintenance that involves a process resulting from wear and tear and a repair function.

29. Scott Henderickson v. Dynamic Medical Imaging, P.C., 2010 N.Y. App. Div. LEXIS 8821

(2d. Dept. 2010) (Nov. 23, 2010). At issue on this appeal was whether a jury verdict in favor of the defendant which determined that the defendant did not violate various Industrial Codes should be set aside pursuant to CPLR 4404(a) or whether the verdict was contrary to the weight of the evidence and a new trial order. The court held that there was a valid line of reasoning and permissible inferences by which the jury could have rationally reached its verdict on the basis of the evidence presented at trial. Plaintiff had been injured when one of two straps attached to a steel plate snapped causing the plate to drop on plaintiff’s foot. At

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the time of the injury a co-worker was using a forklift to flip over the 10,000 lb. steel pate. The jury found that the defendant did not violate the Industrial Codes relied on by the plaintiff.

Practice Note: Not every “falling object” is protected by the Labor Law.

30. Michael La Veglia v. St. Francis Hospital, 2010 N.Y. App. Div. LEXIS 9017 (2d Dept.

2010) (Nov. 30, 2010). Plaintiff, a carpenter, was working on a renovation project and he was injured when he was struck by a metal stud. At the time of his injury the plaintiff was at ground level cleaning a chute which was used for debris coming from the 4th floor above. The court held that the facts implicated the protection of Labor Law §240(1) because the plaintiff’s injuries were caused either by the inadequacy of the chute or the failure to employ hoists, pulleys or scaffold for removal of the debris. The §241(6) cause of action was dismissed because the defendant’s expert testified that there were no violations of Industrial Codes and any violation was not the proximate cause of the plaintiff’s injuries. The court granted the defendant’s motion to dismiss the plaintiff’s §200 and common law negligence claim and noted that because this was a means and methods case, the required authority to supervise or control the performance of the work was missing.

Practice Note: In reaching its decision on §240(1), the court cited to Runner, 13 N.Y.3d at 603. This is an extremely broad reading of Runner.

31. Andrew Read Ramsey v. Leon D. DeMatteis, 2010 N.Y. App. Div. LEXIS 9254 (2d Dept.

2010) (Dec. 7, 2010). Plaintiff, an apprentice elevator mechanic, was injured while working in an elevation shaft which was under construction. The court held that there were triable issues of fact as to whether the metal plank or scaffolding on which the plaintiff was standing and the safety harness that plaintiff was provided were proper protection or whether additional protection should have been provided. Therefore, the court refused to grant the motion of the plaintiff or defendant under §240(1). The court also held that there were issues of fact as to whether the debris involved in the plaintiff’s accident was integral to the work being performed or constituted mere debris. Therefore, the court refused to dismiss the §241(6) cause of action. The court refused to dismiss the §200 and common law negligence cause of action against one defendant because there were issues of fact on actual or constructive notice of the alleged dangerous debris. As to several other defendants that court dismissed these claims because they did no create or have actual or constructive notice of the dangerous condition.

Practice Note: It is important to determine who has the initial burden of proof and the nature and extent rebuttal proof necessary to defeat or succeed on a motion.

32. Centennial Contractors Enterprises v. East New York Renovation Corporation, 2010 N.Y.

App. Div. LEXIS 9201 (2d Dept. 2010) (Dec. 7, 2010). At issue on this appeal was the

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enforceability of a contractual indemnification provision running between a general contractor and the roofing subcontractor. The court held that while the general contractor had the duty by contract to supervise the work and ensure compliance with safety regulations, this did not amount to supervision and control of the work site such that the general contractor would be liable for the negligence of the contractor who performed the day-to-day operations. Further, inspection of the work site daily and the authority to stop work are insufficient to establish liability. Therefore, the indemnification provision was enforceable because the general contractor was free of negligence.

Practice Note: In order to determine whether the indemnification provision is enforceable, the language of the contract must be assessed and then the implementation of the contract on the work being performed.

33. Roland Austin v. Consolidated Edison, Inc., 2010 N.Y. App. Div. LEXIS 9215 (2d Dept.

2010) (Dec. 7, 2010). Plaintiff was working at a hazardous work site when, while wearing required rubber boots he tripped over a tarp. At the time of his injury he was securing a corner of the tarp. The court denied the defendants motion under §241(6) noting that the defendants failed to establish that the tarp covered pile of soil and dirt did not qualify as an “elevated working surface” under 12 NYCRR 23-1.7(d). The court dismissed the §200 claim because the evidence only established that the defendants’ authority was limited to ensuring compliance with safety regulations and contract specifications which is insufficient to impose liability under §200.

Practice Note: The court appears to be stretching the concept of “elevated working surface” in its analysis of the relevant Industrial Code.

34. Isaac Silvas v. Bridgeview Investors, LLC, 2010 N.Y. App. Div. LEXIS 9258 (2d Dept.

2010) (Dec. 7, 2010). At the time of his death, the decedent plaintiff and a coworker were stacking pieces of plywood debris on the 6th floor balcony of a condominium under construction. The balcony did not have a railing and only had barricades which had been removed prior to the decedent’s fall. The court refused to grant the defendant’s motion to dismiss the §240(1) cause of action because there were issues of fact on the sole proximate cause and recalcitrant worker defenses. Specifically, on the issue of who removed the barricades.

Practice Note: Any proof submitted on a motion must be in admissible form and not based on hearsay.

35. Michael J. Spence v. Island Estates at Mt. Sinai, LLC, 2010 N.Y. App. Div. LEXIS 9454 (2d

Dept. 2010) (Dec. 17, 2010). Plaintiff was allegedly injured when his right foot hit a rut or deep crevice in the ground caused by a tire or tread marks. The court dismissed the §240(1) cause of action because the accident occurred at ground level and the plaintiff was not

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exposed to an elevation-related risk. The §241(6) claim was dismissed because the industrial codes relied on by the plaintiff was not sufficiently specific, but were merely general safety standards. With respect to the §200 and common law negligence claims, these claims were dismissed because they were based on ordinary and obvious hazards of employment.

Practice Note: The court faulted the plaintiff for performing his job “incautiously” and therefore, the defendants were not liable.

36. Edward Wnetizak v. V.C. Vitanza Sons, Inc., 2010 N.Y. App. Div. LEXIS 9468 (2d Dept.

2010) (Dec. 17, 2010). Without reciting the facts of the case, the court dismissed the §240(1) claim because the injured plaintiff’s conduct was the sole proximate cause. The §241(6) claim was dismissed because the plaintiff failed to allege violations of a specific Industrial Code provision. In addition, the §200 and common law negligence cause of actions which were based on a manners and method claim were dismissed because the defendant did not have the authority to supervise or control the performance of the work.

Practice Note: In order to understand the impact of this case, the Record and Briefs on Appeal should be reviewed.

37. Sheree Dhoyi A. Gurung v. Arnav Retirement Trust, 2010 N.Y. App. Div. LEXIS 9554 (2d

Dept. 2010) (Dec. 21, 2010). Two plaintiffs were inspecting a wall to determine whether there was water damage. Their employer had been hired by defendant owner of the premise to repair an adjacent roof. The wall collapsed striking the scaffold causing the plaintiff to fall in a gap between the scaffold and wall. The court found issues of fact as to whether the sole proximate cause of the plaintiffs’ injuries was their refusal to obey specific instructions to use an available safety device and therefore, refused to grant summary judgment on the §§240(1) and 241(6) causes of action. Because the defendants had no authority to control the method or materials of the plaintiffs’ work, the §200 and common law negligence claims were dismissed.

Practice Note: Sole proximate cause is an extremely factually specific defense.

38. Robert Riccio v. NHT Owners, LLC, 2010 N.Y. App. Div. LEXIS 9574 (2d Dept. 2010)

(Dec. 21, 2010). The trial court precluded the testimony of the plaintiff’s expert on the issue of whether the ladder provided to the plaintiff was appropriate and dismissed the plaintiff’s §240(1) claim. In reversing the trial court, this court held that the expert had the requisite skill, training, education, knowledge and experience to render a reliable opinion.

Practice Note: This is an excellent case in determining the standard applied to experts in construction litigation.

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THIRD DEPARTMENT 1. Dallas M. Grove v. Cornell University, 75 A.D.3d 718, 904 N.Y.S.2d 559 (3d Dept. 2010)

(July 1, 2010). Plaintiff and a co-worker, at the time the plaintiff fell from a basket on top of a telescoping boom left, were installing rubber membranes and metal flashing on windows. Immediately, prior to the plaintiff’s fall, the co-workers reminded the plaintiff to attach the lanyard on his safety harness to the basket. In a 3-2 decision, the majority of the court held that because the plaintiff’s own conduct was the sole proximate cause of his injuries, the §240(1) claim should be dismissed. The dissenting judges noted because the door on the basket did not operate automatically it was a contributing factor to the accident which precludes the application of the sole proximate cause defense.

Practice Note: The majority cites to Blake, N.Y.3d 280, whereas, the dissent relies on Duda, 32 N.Y.2d 405.

2. John J. Murray v. Arts Center and Theatre of Schenectady, Inc., 910 N.Y.S.2d 187 (3d Dept.

2010) (Oct. 21, 2010). Plaintiff, a steel worker while working on a renovation project, fell from a beam which was located 15’ from the ground. At the time of his fall, the plaintiff was wearing a harness and lanyard which was not tied off. The court rejected the sole proximate cause defense and granted the plaintiff’s motion for summary judgment under §240(1). In reaching its decision, the court noted that the testimony of the plaintiff indicated that his training was that he did not have to tie off at the height he was working (1st story) and his supervisor had instructed him that he did not need to tie off at that height. Further, the OSHA regulation indicated that he did not have to tie off.

Practice Note: The defendant’s position that common sense would have dictated that he should tie off was rejected.

3. Joseph C. Silva III v. Bow Tie Partners, LLC, 909 N.Y.S.2d 202 (3d Dept. 2010) (Oct. 21,

2010). The plaintiff, at the time of his fall, was standing on a plank which was part of the scaffold. The plank broke. The court concluded, that even though the plaintiff established a prima facie case, the defendants raised questions of fact with regard to whether there was a statutory violation of §240(1) and whether the plaintiff’s conduct was the sole proximate cause of his injuries. Specifically, there were questions of fact as to whether the plaintiff was instructed not to use the defective plank; whether other planking was available and whether the worker had been instructed on a daily basis to use harnesses and other safety equipment.

Practice Note: The defendant relied on an affidavit of another employee and of a professional engineer in raising the issues of fact.

4. Joseph Miranda III v. Norstar Building Corporation, 909 N.Y.S.2d 802 (3d Dept. 2010)

(Oct. 28, 2010). Plaintiff sustained a traumatic brain injury when he fell approximately 30 feet from a roof while working on a construction project. Plaintiff was working within inches of the edge of the roof. The defendants were using a safety monitoring system

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approved by OSHA which consisted of a safety monitor warning the other workers when they got too close to the edge of the roof. Just prior to his fall, the monitor warned the plaintiff that he was too close to the edge. The court granted plaintiff’s motion under §240(1) and held that the plaintiff established that defendants failed to provide him with a safety device, and that the violation was the proximate cause of plaintiff’s fall. With respect to liability between the defendants and third-party plaintiff, the court held that there were issues of fact as to whether the plaintiff sustained a “grave injury” and therefore, the defendants were not entitled to common law indemnification. In addition, the court found issues of fact as to whether a defendant was entitled to contractual indemnification because the defendant seeking indemnification could be held negligent.

Practice Note: The court noted that contractual indemnification provisions must be strictly construed.

5. Craig D. Johnson v. The Small Mall, LLC, 2010 N.Y. App. Div. LEXIS 8935 (3d Dept.

2010) (Dec. 2, 2010). Plaintiff was walking across the joists to reach a structure that he was dismantling when he tripped on a wire, lost his balance and fell through sheetrock to the floor 16’ below. The court held that no safety devices were provided to the plaintiff to prevent his fall. The court rejected the defendant’s argument that the accident was a result of the plaintiff’s sole proximate cause. In light of this, the court granted the plaintiff’s summary judgment under §240(1).

Practice Note: The narrow joist tops did not constitute a safety device within the meaning of §240(1).

6. Jason McDonald v. UICC Holding, LLC, 2010 N.Y. App. Div. 8934 (3d Dept. 2010) (Dec. 2,

2010). Plaintiff was injured when he fell through a stairway while working on a renovation project. At the time of his injury the plaintiff was removing debris from a staircase when a portion collapsed causing him to fall. Because part of the staircase had been demolished the court refused to apply the “permanent passageway” cases that would have precluded summary judgment in favor of the plaintiff under §240(1). The court held that under these facts, plaintiff was entitled to summary judgment because the staircase constituted a “device.” The court refused to dismiss the §200 and common law negligence claims even though general supervisory control, including the authority to enforce safety standards does not mean that the owner was in control of the work. The court found that there were issues of fact as to whether the deterioration of the staircase contributed a dangerous condition and whether the defendant had notice of the condition.

Practice Note: The court refused to allow the plaintiff to amend its bill of particulars to include a new Industrial Code violation because the defendant would be prejudice.

7. William P. Bush v. Mechanicville Warehouse Corporation, 2010 App. Div. LEXIS 9154 (3d

Dept. 2010) (Dec. 9, 2010). Plaintiff was injured when he fell from a ladder in a warehouse

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owned by defendant. The court held that there were material issues of fact as to whether the plaintiff sustained a grave injury (i.e. traumatic brain injury). The court refused to grant contractual indemnification between a lessor and lessee because the lack of a written agreement required by Workers’ Compensation Law §11.

Practice Note: There was no written agreement between the lessor and tenant that expressly agreed to indemnify. The agreement was contained in a long expired lease.

8. Jerry Crossett v. Wing Farm, Inc., 2010 N.Y. App. Div. LEXIS 9147 (3d Dept. 2010) (Dec.

9, 2010). The plaintiff was injured when a tree limb fell on him while he was working with a co-worker on a tree removal project conducted by the county. Plaintiff was on the ground using a chipper when a limb fell on him. The trees were being cleared because it obstructed the driveway of an adjacent piece of property to the one owned by the defendant where a building was being constructed. The court rejected the one and two-family dwelling exemption, however, the court dismissed the §240(1) cause of action because the plaintiff and his employer were not engaged in a protected activity under either §240(1) or §241(6).

9. Joseph Sereno v. Hong Kong Chinese Restaurant, 2010 N.Y. App. Div. LEXIS 9444 (3d

Dept. 2010) (Dec. 16, 2010). The plaintiff injured his eye while cleaning grease from the exhaust system in a restaurant. At the time of his injury the plaintiff was standing on the ground while the co-worker was cleaning at system 4’ above. At the time of the injury the co-worker had handed the plaintiff a container that slipped out of the plaintiff’s hand, hit the floor and sprayed the plaintiff. The court dismissed the §240(1) claim and noted that this was not a “falling object” and was not the direct consequences of the application of the force of gravity to the container.

Practice Note: In reaching its decision the court cited to Narducci, 96 N.Y.2d 259 and Runner, 13 N.Y.3d 599.

FOURTH DEPARTMENT 1. Scott Wild v. Marrano/Marc Equity Corporation, 75 A.D.3d 1099, 903 N.Y.S.2d 288 (4th

Dept. 2010) (July 2, 2010). The plaintiff was injured as he stepped onto a plank that partially covered the excavation when his foot slipped causing him to fall into the excavation. The court held, that contrary to the contention of the defendant, the plaintiff’s fall into an excavation from ground level is the type of elevation related risk which is protected by Labor Law §240(1).

Practice Note: The court noted that the plank that the plaintiff was standing on was the functional equivalent of a scaffold.

2. Scott F. Dean v. City of Utica, 75 A.D.3d 1130, 906 N.Y.S.2d 833 (4th Dept. 2010) (July 9,

2010). Plaintiff, at the time of his injury, was working on a scissor lift and was replacing

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bearing brackets on a garage door. The door opened which caused the scissor lift to fall over. The court rejected the defendants’ argument that the accident occurred as a result of the sole proximate cause of the plaintiff. Further, the work being performed by the plaintiff was not routine maintenance because of wear and tear. The bearings failed prematurely and not from wear and tear. The court found that the plaintiff’s injuries were not grave and therefore, third-party complaint was dismissed. Further, there were issues of fact to preclude contractual indemnification.

Practice Note: Comparative fault is not a defense to a §240(1) claim. Any sole proximate cause will preclude the application of §240(1).

3. James P. Shelton v. Henderson & Johnson Co., Inc., 75 A.D.3d 1155, 906 N.Y.S.2d 413 (4th

Dept. 2010) (July 9, 2010). Plaintiff was injured when he slipped and fell on ice in the parking lot. The court found that there was an issue of fact as to whether the hard packed snow existed prior to the storm in progress. The court dismissed the §241(6) claim because the parking lot was not a passageway or walkway and not part of the worksite. As to one contractor that was performing work inside a building, the court dismissed the plaintiff’s claim because that contractor did not have a duty to maintain the parking lot.

Practice Note: The plaintiff utilized an affidavit of a meteorologist to create an issue of fact on the storm in progress.

4. William Bucklaew v. Scott Walters, 75 A.D.3d 1140, 905 N.Y.S.2d 813 (4th Dept. 2010) (July

9, 2010). The two plaintiffs each sustained injuries (minutes apart) when they fell from a ladder and pick assembly while installing siding on a two-family residence. The court dismissed the §§240(1) and 241(6) causes of action under the one and two-family dwelling exemptions. The defendants did not direct or control the method and manner in which the work was performed. The mere fact that the plaintiff pointed out areas where the work was performed did not establish liability. Work performed by the homeowner unrelated to the defendant’s work did not preclude the application of the exemption. The court refused to dismiss the §200 and common law causes of action as the court found issues of fact as to whether the defendant created the dangerous condition. Also, there were issues of fact as to whether the actions of the plaintiff contributed to the accident or was a superseding cause.

Practice Note: In determining the application of the one and two-family dwelling exemption the court utilized a building block approach in analyzing the facts.

5. Mark Trane v. James R. Hastee, 908 N.Y.S.2d 795 (4th Dept. 2010) (Oct. 1, 2010). The

plaintiff was injured while he was lifting a bundle of shingles from a conveyor belt that was delivering the shingles to the roof of a house. The court held that the plaintiff was not a volunteer because the plaintiff understood that he would receive “pocket change” for his work. The court, however, dismissed the common law negligence and §200 cause of action

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because the defendant did not create the dangerous condition nor did the defendant direct or control the plaintiff’s work.

Practice Note: The fact that the defendant oversaw the roofing project and purchase materials did not constitute the requested degree of supervision on the manner of the work.

6. Raymond S. Handville v. MJP Contractors, Inc., 908 N.Y.S.2d 799 (4th Dept. 2010) (Oct. 8,

2010). Plaintiff was injured when he fell from a ladder scaffold at a construction site. The court rejected the defendant’s sole proximate cause contention under §240(1). Even though there was proper safety equipment on the site, the defendant failed to establish that the plaintiff had been instructed to use that equipment. The court rejected the defendant’s motion to amend its answer to include a counterclaim for contribution and indemnification against the plaintiff for plaintiff’s failure as a self-employed person to obtain workers’ compensation insurance. The court dismissed the §200 and common law negligence causes of actions because the plaintiff failed to raise issues of fact with respect to the relevant standards. As to at least one Industrial Code, the court held that it was sufficient to support a §241(6) claim.

Practice Note: Under Workers’ Compensation Law §54, a self-employed worker is not required to obtain insurance for himself.

7. Mark Lorenti v. Stickl Construction Company, Inc., 2010 N.Y. App. Div. LEXIS 8254 (4th

Dept. 2010) (Nov. 12, 2010). Plaintiff was injured while installing siding on a home under construction and sued the general contractor. The defendant contended that the plaintiff should have utilized a ladder and a safety device; however, there was not any evidence that the plaintiff had been instructed to use a ladder or that the plaintiff based upon his training, prior practice or common sense knew or should have known to use a ladder. Nor was there any proof that the plaintiff had adequate safety devices available, knew that they were available, was expected to use them, chose for no good reason to do so and that had he not made that choice would not have been injured.

Practice Note: This is an excellent case that outlines the standard applicable to the sole proximate cause defense.

8. Nathan Pfaffenbach v. Doulgas J. Nemec, 2010 N.Y. App. Div. LEXIS 8226 (4th Dept. 2010)

(Nov. 12, 2010). Plaintiff was injured when he fell from a ladder while installing plywood in defendant’s home. The court applied the homeowners exemption and dismissed the §240(1) and §241(6) cause of action because the owner neither directed or controlled the plaintiff’s work. The court also dismissed the common law negligence and §200 claims because the defendant did not direct and control the plaintiff’s work.

Practice Note: The method and manner of plaintiff’s work were left to his judgment and experience.

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9. Shawn Sullivan v. RGS Energy Group, Inc., 2010 N.Y. App. Div. LEXIS 8288 (4th Dept. 2010) (Nov. 12, 2010). Plaintiff was injured when he slipped and fell on ice at the worksite. At issue on the appeal were the plaintiff’s claims under §241(6) and common law negligence and §200 causes of action. The court held that the Industrial Code (12 N.Y.C.R.R. 23-1.7(d) relied on by the plaintiff was sufficiently specific to support a §241(6) claim; however, an issue of fact existed as to whether the plaintiff fell in a passageway or walkway. With respect to the common law negligence and §200 causes of action which were based on a defect or dangerous condition at the worksite, the court also found issues of fact.

Practice Note: The court rejected the contention that summary judgment was warranted because the dangerous condition was open and obvious. An open and obvious condition bears only on the injured parties’ comparative fault.

10. Timothy P. McCormick v. 257 W. Genesee, LLC, 2010 N.Y. App. Div. LEXIS 8465 (4th

Dept. 2010) (Nov. 12, 2010). The plaintiff was injured when he fell at a construction site. The court dismissed the common law negligence and §200 claims which was based on the manner and method of the work being performed by the plaintiff. In this case, the defendant did not exercise supervising control over the operations. Monitoring and oversight of the timing and quality of the work is insufficient. In this case, the plaintiff’s work did not result from a hazardous condition. The court also dismissed the §241(6) cause of action because none of the Industrial Code provisions led on by the plaintiff were applicable because the object over which the plaintiff tripped over was an integral part of the construction.

Practice Note: In assessing direction and control, the courts reviewed the contract documents and activity on the construction site.

11. Michael Dahar v. Holland Ladder & Manufacturing Company, 2010 NY Slip Op 9646 (4th

Dept. 2010) (Dec. 30, 2010). The plaintiff was injured when he was descending a ladder and a rung broke. At the time of his injury the plaintiff was working at this employer’s shop fabricating a component for shipment to an off-site construction project. Because the plaintiff was engaged in a “normal manufacturing process” the majority of the court (3-2) concluded that he was not engaged in a protected activity under §240(1). Therefore, the §240(1) was dismissed. The §200 and common law negligence claims were dismissed because the defendants did not exercise supervisory control over plaintiff’s work nor did they create the dangerous conditions. The two dissenting judges noted that the wall module that the plaintiff was cleaning was a structure within §240(1) and therefore, the plaintiff was protected under §240(1).

Practice Note: The dissent concluded that the question under §240(1) is not whether the cleaning is taking place as part of a construction, demolition or repair project, or is incidental to another activity protected under section 240(1). The inquiry turned on whether the task creates an elevation-related risk of the kind that the safety device listed in §240(1).

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12. Wayne A. Boivin v. The Marrano Marc Equity Corp., 2010 NY Slip Op 9732 (4th Dept. 2010)

(Dec. 30, 2010). The plaintiff was injured when he fell while installing a roof on a home under construction. The court held that the plaintiff established that he was entitled to summary judgment under §240(1) and noted that the mere fact that a fall was unwitnessed does not alter this decision.

Practice Note: The defendant failed to raise an issue of fact to defeat the plaintiff’s motion.

FEDERAL COURTS:

Southern District Court of New York

1. Darlene McCaffrey v. Millennium Pipeline Company, LLC, 2010 U.S. Dist. LEXIS 90700 (S.D.N.Y. 2010) (Sept. 1, 2010). At the time of his death, the plaintiff decedent was operating a pipelayer that weighed 100,000 lbs. on a 300-400 foot slope. The plaintiff who was not wearing a seatbelt was ejected. Plaintiff sued the defendants who were the owners of the premises under §§200, 240(1) and 241(6). The management company entities sued the plaintiff’s employer for contractual indemnification and the plaintiff’s employer counterclaimed for indemnification. The Court held that the accident falls within the scope of §240(1) and noted that the pipeline was a structure. Further, the court rejected the defendant’s argument that the risk involved was unforeseeable. The Court also addressed the sole proximate cause/recalcitrant worker defense.

Practice Note: An employer cannot delegate to an employee the ultimate responsibility for the safety (i.e. wearing of a safety belt).

Western District of New York

2. Business For a Better New York v. Patricia Smith, 2010 U.S. Dist. LEXIS 96954 (W.D.N.Y. 2010) (Sept. 16, 2010). At issue in this case was the application of the doctrine of res judicata and whether the plaintiff’s entitled to amend its complaint. Previous to this application, the Second Circuit had dismissed the plaintiff’s claims that challenged the constitutionality of §240(1) and refused to address plaintiff’s due process claim because it was not raised in the complaint or proceeding below. The Court applied to the doctrine of res judicata and granted the defendant’s motion based upon the concept of claims preclusion. The plaintiff’s motion to amend was denied as moot because the proposed amendment would also be subject to res judicata.

Practice Note: This would appear to be the end of the constitutional challenge to Labor Law §240(1).

3. Michael S. Steinman v. Morton International, Inc., 2010 U.S. Dist. LEXIS 12291 (W.D.N.Y.

2010) (Nov. 17, 2010). Plaintiff was injured when the brick structure he was in the process

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of demolishing collapsed. At issue was whether the owner of this premise was liable under §240(1). The Court held that the injury suffered by the plaintiff is not the type of elevation related hazard that §240(1) was intended to address. In reaching its decision the court noted the following:

1. Absolute liability is not imposed by an object falling from

the same elevation level at which the work is performed. 2. The section of bricks that fell on the plaintiff were an

integral part of the structure to be demolished.

3. The accident resulted from the type of peril a construction worker usually encounters on the job site.

With respect to the §241(6) claim, the court refused to dismiss the claim because an Industrial Code raised by the plaintiff were applicable and specific and there were issues of fact. The Court refused to dismiss the §200 cause of action because there were issues of fact as to whether the accident arose out of the method or means of a dangerous condition on the premises.

Practice Note: The court refused to grant contractual indemnification in favor of the owner because there were issues of fact as to the owner’s negligence.

LEGISLATION New York State Construction Industry Fair Play Act (Chapter 418) Effective October 26, 2010, Labor Law §861 amended the New York Labor Law and Worker’s Compensation Law to create a presumption of employment in the construction industry. See, New York Workers’ Compensation Board Bulletins and Subject Numbers -- Subject No. 046-450 which notes:

The heart of the new law is Labor Law §861-C which provides that any person performing services for a contractor is presumed to be an employee of that contractor. Contractor is broadly defined to include any sole proprietor, partnership, firm, corporation, limited liability company, association or other legal entity permitted to do business within the state who engages in construction work. Labor Law §2(4). Therefore, any worker performing services for a contractor who is injured on or after October 26, 2010, will be presumed the employee of that contractor for workers’ compensation purposes, subject to the independent contractor test contained in the statute.

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Traditionally, not all courts consider rulings made by the Workers’ Compensation Board as binding in third-party Labor Law cases. In fact, there appears to be a conflict among the various appellate courts. The Fair Play Act not only affects Workers’ Compensation Law, but impacts the Labor Law. Therefore, it would appear that the findings made in a workers’ compensation proceeding could have res judicata effect on similar issues raised in the third-party litigation. For example, if it was determined in the workers’ compensation proceeding that Employee X was an employee of Company ABC that determination could be binding and not challengeable. In any event, in future litigation it will be important to raise the workers’ compensation exclusivity defense and the defense of res judicata as appropriate.

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