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Labor Law UpdateGoldberg Segalla | Winter/Spring 2015
IN THIS ISSUE:Is the work being performed a “protected activity” under New York Labor Law?
Plus cases from across New York’s court system involving:• The recalcitrant worker defense• Routine maintenance• Industrial code regulations• And more
Goldberg Segalla Labor Law Update Winter/Spring 2015
EDITOREllen H. Greiper
ASSISTANT EDITORS
Mark P. DonohueDIRECT [email protected]
Marvin N. RomeroDIRECT [email protected]
Robert W. BerbenichDIRECT [email protected]
Daniel T. HunterDIRECT [email protected]
Goldberg Segalla’s Labor Law Update keeps clients informed about significant changes and cases involving New York’s Labor Law. Cases are organized by court and date. If you have any questions about cases reported in this Labor Law Update or questions concerning Labor Law §§200, 240(1), and 241(6) in general, please contact Ellen Greiper.
Editor’s Note
The cases decided within this reporting period highlight a common question encountered by our courts: whether the plaintiff was engaged in a “protected activity” within the meaning of the New York State Labor Law.
In DeSimone v. City of New York, 121 A.D.2d 420 (1st Dep’t, 2014), the First Department found that a worker involved in the “financial aspects” of a construction project who was not performing labor was, in fact, engaged in a protected activity, as his work was related to the ongoing construction. The Second Department in Kharie v. South Shore Record Management, Inc., 118 A.D.3d 955 (2d Dep’t, 2014) similarly found the plaintiff to be engaged in a protected activity when dismantling a shelf that was composed of component parts that were attached in a definite manner.
The court’s continuing analysis of this fundamental issue serves to underscore that not all accidents at a construction site are subject to protection under the Labor Law. Practitioners are cautioned to focus on the actual work performed, as well as the context under which it was done, to determine if the claimant’s activity warrants protection.
Several reported cases also reflect ongoing issues that were previously reported in recent editions of the Labor Law Update: the recalcitrant worker and sole proximate cause defense. In Przyborowski v. A&M Cook, LLC, 120 A.D.3d 651, the Second Department held that a plaintiff ’s discretion will not absolve a defendant of liability unless it is shown that the plaintiff was specifically instructed to use one means and the plaintiff failed to follow the instruction. The Third Department in Fabiano v. State of New York, 2014 N.Y. Slip. Op. 08695, also found that the recalcitrant worker defense did not apply. Although the plaintiff failed to wear a safety harness while on a scaffold plank that collapsed, the court held the plaintiff ’s omission was not the proximate cause of the accident since the scaffold, a primary safety device, failed. In Hill v. Acies Group, LLC, 2014 NY App. Div.Lexis 7554 (1st Dep’t, 2014), the court held that instructing an employee to avoid using unsafe equipment or engaging in unsafe work is not a safety device and, therefore, the employee’s failure to follow the instruction will not give rise to a recalcitrant employee defense. The appellate courts are expected to continue to scrutinize and dissect this defense.
Finally, it is with great admiration and sadness that we begin transitioning this newsletter from its prior Editor, Tom Segalla. No one can replace Tom’s intellect or his devotion to his clients and the law. Even as he passes the baton, Tom remains committed to the publication of this newsletter. With his ideals in mind we move forward with our updates, optimistic that we will live up to his dedication to excellence.
Please note that the second edition of the New York State Bar Association’s Construction Site Personal Injury Litigation §§200, 240(1), and 241(6) edited by Goldberg Segalla’s Construction Practice Group, is available.
As always, we hope you find this edition of Labor Law Update to be a helpful and practical resource. If you have any questions about the cases or topics discussed in this newsletter, or any feedback on how we can make Labor Law Update more useful for you, please do not hesitate to contact me.
Ellen H. GreiperPartner
In This Issue
Court of Appeals 2
First Department 3
Second Department 7
Third Department 12
Fourth Department 13
Topics Index 16
Labor Law Update | Winter/Spring 2015 • 1
Ellen H. GreiperDIRECT [email protected]
2 • Labor Law Update | Winter/Spring 2015
COURT OF APPEALS
The Court of Appeals did not issue any decisions regarding Labor Law §§200, 240 or 241(6) from August through December 2014. It did, however, render a decision in Gammons v. City of New York involving General Municipal Law 205-e and its interaction with Labor Law §270(3)(a)(1).
GAMMONS V. CITY OF NEW YORK2014 N.Y. Slip. Op. 08869 (December 8, 2014)
The plaintiff, a police officer, was injured while unloading wooden barriers onto a police flatbed truck, when another officer pushed one of the barriers, which knocked plaintiff off the truck. The plaintiff claimed that the truck provided was too short to accommodate the barriers. She sued under GML §205-e, which allows police officers to recover for injuries caused by a violation of a statute or regulation, etc. (similar to Labor Law §241(6)’s requirement of a violation of Industrial Code Rule 23). The plaintiff alleged a violation of Labor Law 27-a(3)(a)(1), which the defendant argued was general and was merely a “general duty” clause and therefore insufficient to support a cause of action under GML §205-e. The regulation likely would not have supported a claim under Labor Law 241[6]. The Court of Appeals allowed the case to go forward, holding that the Legislature has made it quite clear that GML §205-e is to be read expansively to protect police officers and regulations or statutes which merely codify the common-law negligence rules are proper to support the GML §205-e claim.
The Court of Appeals disagreed, and said that the cause of action under GML §205-e does not require that the underlying statute, rule, ordinance, etc. contain an independent right to sue. In essence, GML §205-e provides that independent right for a police officer to sue.
In the end, the Court of Appeals affirmed the denial of defendant’s summary judgment motion and allowed the case to go to trial.
Practice Note: This decision is noteworthy because the defendant’s arguments were classic arguments for a Labor Law §241(6) cause of action — that the provisions cited were generalized, non-concrete, safety provisions that merely codified the common-law duty to provide a safe place to work. For a claim under GML §205-e this is now a losing argument.
Topics: Application of Labor Law
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FIRST DEPARTMENT
Labor Law Update | Winter/Spring 2015 • 3
DESIMONE V. CITY OF NEW YORK121 A.D.2d 420, 993 N.Y.S.2d 551(October 2, 2014)
The plaintiff, whose job at a construction site pertained to financial oversight, tripped and fell over steel handrails in a vestibule as he was conducting a visual inspection. The court reinstated the plaintiff’s §241(6) claim, finding that although the plaintiff did not perform the “labor-intense aspects of the project,” his job duties and the inspection he was conducting were related to the ongoing work. The court dismissed the plaintiff’s common-law negligence and §200 claims against two contractors as there was no evidence that either contractor had authority to control the activity that allegedly brought about the injury. The court also upheld the granting of conditional contractual indemnification against a contractor, notwithstanding the plaintiff’s negligence claim against the parties seeking the indemnification.
Practice Note: The court found that although the plaintiff was not performing “labor-intense” work, his work was deemed to be contemporaneous with, and related to, ongoing work on the project, and therefore plaintiff was a covered person under the Labor Law. It should be noted that the plaintiff’s cross-motion to submit expert disclosure was denied, as it was first submitted in opposition to the defendant’s summary judgment motion and after the filing of the Note of Issue.
Topics: Application of Labor Law; Authority or Control Over Work; Protected Activity; Contractual Indemnification
JOHNSON V. CITY OF NEW YORK120 A.D.3d 405, 991 N.Y.S.2d 36(August 7, 2014)
The plaintiff was injured when he fell from a ladder. The plaintiff alleged violations of Labor Law §§240(1) and 241(6) against defendant City of New York, which asserted cross-claims against one of the contractors, a statutory agent for the city on the project. The court affirmed the granting of the city’s summary judgment for contractual and common-law indemnity, finding that the
contract between the parties required the agent to indemnify the city for the agent’s negligence or from its “failure to comply with any provision of this contract or of law.”
Practice Note: Although another contractor was listed in its contract with the city as a “general contractor,” the court noted that deposition testimony confirmed that the statutory agent had authority to supervise the work of the other prime contractors.
Topics: Common-Law Indemnification; Contractual Indemnification; Authority or Control Over Work
DEPAUL V. NY BRUSH LLC120 A.D.3d 1046, 994 N.Y.S.2d 59(September 11, 2014)
The plaintiff was injured from a fall that occurred when a wooden plank he was walking across broke beneath him. Factual issues existed as to whether the defendants created or had constructive notice of the dangerous rotten wooden plank, precluding dismissal of the plaintiff’s §200 claims. Among the facts considered by the court were photographs taken immediately after the accident showing the planks were wet and rotten and depicting defects that tended to be longstanding.
Practice Note: Here, pictures spoke a thousand words as the court noted that the photographs depicted what a witness admitted were wet and rotten planks.
Topics: Actual or Constructive Notice of Dangerous Conditions; Industrial Code Regulations
BEST V. TISHMAN CONSTR. CORP. OF N.Y. 120 A.D.3d 1081, 993 N.Y.S.2d 16(September 18, 2014)
The plaintiff was injured when she tripped over an electrical cord. The defendant’s motion for summary judgment based on §241(6) was denied since the defendant failed to demonstrate that the Industrial Code cited by the plaintiff was inapplicable. The court found that the plaintiff’s accident
occurred in a passageway and not an open area, as the area had been described as a hallway or corridor. The court also noted that the defendants failed to show that the cord did not constitute scattered materials. The plaintiff’s common-law negligence and §200 claims were dismissed against the project owner and construction manager as they did not exercise supervisory control over the work. The court also granted a third-party plaintiff’s motion for conditional summary judgment on their claim for contractual indemnification.
Practice Note: The moving party has the initial burden to establish its entitlement to summary judgment. Since the defendant did not establish that the Industrial Code provision the plaintiff was relying on did not apply, its motion for summary judgment on §241(6) was denied.
Topics: Authority or Control Over Work; Industrial Code Regulations
GRIFFITHS V. FC-CANAL, LLC 120 A.D.3d 1100, 992 N.Y.S.2d 518(September 18, 2014)
The plaintiff was injured when he slipped while removing ice from the top floor of a hotel under construction, which the plaintiff’s supervisor instructed him to remove. The plaintiff’s §§200 and 241(6) claims were dismissed, as the plaintiff was injured while remedying the exact condition he was directed to remove.
Practice Note: The court’s decision reflects that there can be no recovery for an injury caused by the very condition the worker undertakes to remedy.
Topics: Application of Labor Law; Protected Activity
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FIRST DEPARTMENT
MOSCOSO V. OVERLOOK TOWERS CORP.121 A.D.3d 438, 993 N.Y.S.2d 703(October 2, 2014)
The plaintiff was injured when he slipped and fell on ice on an exterior steel staircase during a freezing rainstorm. The plaintiff’s § 200 and common-law negligence claims were dismissed under the “storm-in-progress” doctrine. The plaintiff’s § 240(1) and § 241(6) claims were also dismissed, as the plaintiff was engaged in routine maintenance of the building’s elevators when the incident occurred.
Practice Note: The plaintiff was must be engaged in a protected activity to be afforded the protections under §240(1) and § 241(6).
Topics: Common-Law Negligence; Protected Activity; Routine Maintenance
FRANCIS V. PLAZA CONST. CORP. 121 A.D.3d 427, 994 N.Y.S.2d 74(October 2, 2014)
The plaintiff was injured after tripping on a piece of electrical conduit. The plaintiff’s common-law negligence and §200 claims were dismissed as the plaintiff’s injury was found to have been caused by the manner in which the work was performed by another contractor, and not by a defective or dangerous condition. In addition, the defendant/third-party plaintiff did not exercise supervision or control over the injury-producing work. The defendant/third-party plaintiff’s motion for contractual indemnification was granted as the accident was, at least in part, caused by the third-party defendant’s work.
Practice Note: Since the plaintiff’s injury was caused by the manner in which the work was performed and not a defect or dangerous condition on the premises, the defendant’s lack of supervision or control over the injury-producing work entitled it to summary judgment.
Topics: Authority or Control Over Work; Common-Law Negligence; Manner and Methods
GUALLPA V. LEON D. DEMATTEIS CONST. CORP. 121 A.D.3d 416, 2014 App. Div. LEXIS 6605(October 2, 2014)
The plaintiff was injured while walking by a pallet of concrete stones that was covered with a tarp to keep the stones dry. As the plaintiff walked by, a stone block that was resting on top of the tarp fell and struck the plaintiff. The plaintiff’s motion for summary on his §240(1) and §241(6) claims were denied and the defendant’s cross-motion for summary judgment on those sections was granted. The plaintiff’s accident was not subject to protection under §240(1) because the stone block did not fall as a result of the inadequacy or absence of a safety device. To be deemed a safety device, the court held, the device must have been put in place “as to give proper protection” for the worker. The plaintiff’s §241(6) claims were also properly dismissed as the cited Industrial Code violations alleged were inapplicable.
Practice Note: The court reiterated that § 240(1) does not automatically apply every time a worker is injured by a falling object. This case also highlights the need for defendants to move for summary judgment in a timely manner. Here, the defendant moved for summary judgment pursuant to cross-motion. The portion of the defendant’s cross-motion to dismiss the plaintiff’s §200 and common-law negligence claims was denied as untimely because the plaintiff’s motion was only as to his §240(1) and §241(6) claims. Since the plaintiff’s motion did not address the §200 and common-law negligence claims, the court would not consider the defendant’s cross-motion dealing with those causes of action.
Topics: Burden of Proof; Falling Objects
MARTINEZ V. BAUER121 A.D.3d 495, 994 N.Y.S.2d 117(October 14, 2014)
The plaintiff was injured when the rope used to hoist a custom-made desk he was delivering to the defendants’ apartment broke, causing the desk to fall on the
plaintiff. The plaintiff’s §241(6) claim was dismissed as the accident did not occur in connection with construction, demolition, or excavation work. The plaintiff’s §240(1) claim was dismissed as the plaintiff was not engaged in “alteration” of a building. The court noted that even if the desk was to be anchored to the wall, that would not result in a significant physical change to the composition of the building.
Practice Note: The court’s decision notes that not every workplace accident is subject to the provisions of the Labor Law.
Topics: Application of Labor Law; Protected Activity
BLANCO V. NBC TRUST NO. 1996A2014 N.Y. App. Div. LEXIS 7540, 2014 NY Slip Op 07573(November 6, 2014)
The plaintiff was injured after falling from an A-frame ladder while replacing ballasts on light fixtures. The plaintiff’s §240(1) claim survived dismissal. The court found that the plaintiff’s work was not routine maintenance, but rather was performed in the context of a larger renovation project at the premises, and therefore a protected activity under the statute. The Appellate Division also searched the record and granted the plaintiff partial summary judgment on his §240(1) claim since there was no dispute as to how the accident occurred and there was no evidence showing the plaintiff was the sole proximate cause of the accident.
Practice Note: In determining whether the plaintiff’s work is a protected activity, it is important to evaluate other work being performed on the premises and whether the plaintiff’s work is being performed in accordance with a larger project on the premises.
Topics: Protected Activity; Sole Proximate Cause
FIRST DEPARTMENT
Labor Law Update | Winter/Spring 2015 • 5
HILL V. ACIES GROUP, LLC2014 NY App. Div. LEXIS 7554(November 6, 2014)
The plaintiff was injured when he was hit by a falling brick while cleaning debris on the ground level of a building that was under construction. The court granted the plaintiff’s motion for summary judgment on his §240(1) claim. The court found that the defendants’ testimony established that the brick fell out of the hands of a worker several stories above the plaintiff and there was no overhead protection where the plaintiff was working. The court held that the plaintiff’s comparative fault is not a defense to a §240(1) claim. Nor was the defendants’ argument that the plaintiff had been instructed not to cross the barricade or go underneath the scaffolding while work was performed overhead.
Practice Note: The court noted that an instruction by an employer or owner to avoid using unsafe equipment or engaging in unsafe practices is not a safety device in the sense that a plaintiff’s failure to abide by the instruction is equivalent to a recalcitrant employee.
Topics: Failure to Provide Protection; Falling Objects; Recalcitrant Worker
MIRANDA V. NYC PARTNERSHIP HOUS. DEV. FUND CO., INC.2014 N.Y. App. Div. LEXIS 7724(November 13, 2014)
While attaching sheetrock to a metal frame at heights approaching a 20-foot ceiling, the plaintiff was injured after falling from a 6-foot ladder that had been placed atop an 8-foot scaffold. The court granted the plaintiff’s motion for summary judgment on his §240(1) finding that the plaintiff was not provided with an adequate safety device. The court, sua sponte, searched the record and dismissed the plaintiff’s §241(6) claim since the cited Industrial Code regulation did not apply.
Practice Note: The court held that since the plaintiff was not provided with an adequate safety device, the defendants could not rely
upon the defenses of the “sole proximate cause” or “recalcitrant worker.”
Topics: Failure to Provide Protection; Recalcitrant Worker; Sole Proximate Cause
KIRCHER V. CITY OF NEW YORK 2014 N.Y. App. Div. LEXIS 7900(November 18, 2014)
The plaintiff was injured when he fell off flooring seven stories above the bottom of a shaft that consisted of wooden planks with gaps between them. The court held that the planks presented an elevation-related hazard regardless of whether the flooring was permanent. However, the plaintiff’s motion for summary judgment on his §240(1) claim was denied as questions of fact existed as to whether the work the plaintiff was performing at the time of the accident was routine maintenance or a repair.
Practice Note: The court’s decision further illustrates the need for a plaintiff to establish that the work being performed was a covered activity for § 240(1) to provide protection.
Topics: Elevation-Related Hazard; Protected Activity; Routine Maintenance
FARIAS V. SIMON2014 N.Y. App. Div. LEXIS 7905(November 18, 2014)
The plaintiff was injured in a fall from a scaffold while working on the renovation of the defendants/owners’ one-family house. The court dismissed plaintiff’s complaint pursuant to the homeowner’s exemptions of §240 and §241. The court found that the defendants did not direct or control the work. The plaintiff argued, unsuccessfully, that because the defendants rented the house after the renovation was complete, the work was for the owners’ commercial use of the house, which would not be covered under the exemptions. The court held that the test for the homeowner’s exemptions is determined at the time of the injury. Since the plaintiff failed to rebut the defendants’ evidence that they decided to
rent the property after the renovation was complete, dismissal of the complaint was warranted.
Practice Note: In reaching its decision, the Court appeared to rely on the fact that the lease for the property was not entered into until two years after the accident. In the Court’s view, plaintiff only presented speculative arguments to rebut defendants’ evidence.
Topics: One- or Two-Family Dwelling Exemption
LUEBKE V. MBI GROUP2014 N.Y. App. Div. LEXIS 8038(November 20, 2014)
The plaintiff was injured when exiting a glass door that fell on him since pins in the door hinges were not secured. The defendant failed to prove entitlement to summary judgment under §241(6) since destruction of interior walls constituted demolition. The defendant’s motion for summary judgment as to the plaintiff’s common-law negligence and §200 claims were also denied due to issues of fact regarding the defendants’ actual or constructive notice of the dangerous work site condition.
Practice Note: Issues of fact to the defendant’s notice of the alleged dangerous condition were created by the defendant’s inconsistent evidence as to when the defect in the door’s hinges was first discovered.
Topics: Actual or Constructive Notice of Dangerous Conditions; Application of Labor Law; Protected Activity
OCAMPO V. BOVIS LAND LEASE LMB, INC.2014 N.Y. App. Div. LEXIS 8423(December 4, 2014)
The plaintiff slipped on ice while carrying metal pipes in the course of performing wall demolition for an asbestos abatement project. The plaintiff’s §200 and common-law negligence claims were properly dismissed since the defendant did not exercise supervisory control over the means and methods of the plaintiff’s work,
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FIRST DEPARTMENT
which required the plaintiff’s employer to use water. The court declined to dismiss the plaintiff’s §241(6) claim based on an alleged violation of 12 NYCRR 23-1.7(d) (relating to slipping hazards), as the plaintiff slipped on ice on the floor that had not been removed, sanded, or covered.
Practice Note: The court held that the ice was not integral to the work being performed despite testimony that the work required use of a solution of water and chemical intended to reduce its freezing point.
Topics: Authority or Control Over Work; Manner and Methods; Industrial Code Regulations
PEREZ V. FOLIO HOUSE, INC.2014 N.Y. App. Div. LEXIS 8743(December 11, 2014)
The plaintiff was injured when he fell from an elevated platform within a larger scaffolding structure to a lower level eight feet below. The plaintiff’s and defendants’ motions for summary judgment on §240(1) were denied as there were issues of fact as to how the accident occurred and whether it resulted from a violation of the statute. The plaintiff’s §241(6) claim was dismissed since the cited Industrial Code regulations were inapplicable.
Practice Note: In finding issues of facts, the court relied upon the testimonies of the plaintiff’s co-worker and foreman and the plaintiff’s medical records, which provided a different version of how the accident occurred than what the plaintiff claimed.
Topics: Application of Labor Law; Protected Activity; Industrial Code Regulations
BROWN V. NEW YORK-PRESBYTERIAN HEALTHCARE SYS., INC.2014 N.Y. App. Div. LEXIS 8825(December 23, 2014)
The plaintiff was injured when he stepped into a hole on a flatbed trailer. As the plaintiff was not exposed to a gravity-related risk, his §240(1) claim was dismissed. The plaintiff’s §200 claim was dismissed as the defendants neither supervised nor controlled the plaintiff’s work and they had no actual or constructive notice of the hole that caused the accident. As the plaintiff cited Industrial Code violations that were inapplicable, his §241(6) claim was also dismissed.
Practice Note: The court’s decision references the applicable standards a plaintiff must meet to establish a claim under §200, §240(1), and §241(6).
Topics: Actual or Constructive Notice of Dangerous Conditions; Authority or Control Over Work; Gravity-Related Risk; Manner and Methods
SECOND DEPARTMENT
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PRZYBOROWSKI V. A & M COOK, LLC120 A.D.3d 651, 992 N.Y.S.2d 56 (August 20, 2014)
The plaintiff alleged that he was injured when he fell while descending an unsecured A-frame ladder that was closed and leaning up against a wall. Both the ladder and a staircase were available for his use, but because the record did not establish that the plaintiff was specifically instructed to use the staircase, the court held that the plaintiff was entitled to summary judgment pursuant to Labor Law §240(1).
Practice Note: A plaintiff’s discretion will not shield a defendant from liability under Labor Law §240(1) unless it can be shown that the plaintiff was instructed to use one means over another and failed to do so, which could result in finding the plaintiff was a recalcitrant worker.
Topics: Recalcitrant Worker; Sole Proximate Cause; Unsecured Ladder
PASSANTINO V. MADE REALTY CORP. 121 A.D.3d 957 (October 22, 2014)
The plaintiff was holding the bottom of an unsecured extension ladder for a co-worker when the plaintiff went to reach for a cable and the ladder began to “kick out” and fall. The plaintiff reached back toward the ladder to stop it from falling, causing him to slip on sand and gravel. The court held that this was the type of hazard contemplated by Labor Law §240(1), and because the plaintiff established that he was not provided with a proper safety device, the plaintiff was entitled to summary judgment. The court dismissed the Labor Law §241(6) claim predicated on 12 NYCRR 23-1.7(d) and (e)(2) as the plaintiff did not trip and the area was not a floor, passageway, walkway, scaffold, platform, or elevated work surface.
Practice Note: Even though the plaintiff slipped and fell and was not personally using the ladder, because the ladder was shown to have been an improper device that proximately caused the plaintiff’s accident, Labor Law §240(1) was held by the court to have been violated.
Topics: Application of Labor Law; Industrial Code Regulations; Protected Activity
ADIKA V. BETH GAVRIEL BUKHARIAN CONGREGATION119 A.D.3d 827, 989 N.Y.S.2d 375 (July 23, 2014)
The plaintiff was hired to paint decorative images on wooden panels and install the panels on the walls of a yeshiva. While installing one of the panels, the plaintiff fell off a ladder and was injured. The court held that the plaintiff was not engaged in a protected activity under Labor Law §240(1), and the defendant’s motion for summary judgment was granted.
Practice Note: The plaintiff must be performing one of the enumerated activities under Labor Law §240(1) at the time of his injury to be protected.
Topics: Protected Activity; Routine Maintenance
PENA V. VARET AND BOGART, LLC119 A.D.3d 916, 989 N.Y.S.2d 901 (July 30, 2014)
The plaintiff, while working for a maintenance company hired by the hostel, alleged that he was injured when he fell from a 20-foot window while washing the windows of the four-story hostel. The court denied the defendants’ motion for summary judgment, holding that the defendants failed to establish that the plaintiff’s activity could not be categorized as “cleaning.” The court also denied the plaintiff’s cross-motion for summary judgment, holding that the plaintiff failed to eliminate all triable issues of fact as to whether he was engaged in a covered activity.
Practice Note: The plaintiff must be performing one of the enumerated activities under Labor Law §240(1) to be protected.
Topics: Protected Activity; Routine Maintenance
BROWNRIGG V. NEW YORK CITY HOUSING AUTHORITY119 A.D.3d 504, 990 N.Y.S.2d 34 (July 2, 2014)
The plaintiff brought an action under Labor Law §§241(6) and 200 after he was struck in the eye by a screwdriver-like tool that was dropped by a co-worker while they were working in the elevator shaft. Industrial Code §23-2.5(b)(3) requires that when an elevator shaft is repaired, a solid or wire mesh partition must be provided to protect the worker from this type of injury. The court held that the worker would have been protected if the mesh had been provided, and therefore, the jury verdict that found that the defendant violated Labor Law §241(6) was not against the weight of the evidence.
Practice Note: The defendant was found to have not provided the necessary safety equipment required by the Industrial Code and also to have had the authority to supervise and control the work.
Topics: Failure to Provide Protection; Industrial Code Violations
VAN BLERKOM V. AMERICA PAINTING, LLC120 A.D.3d 660, 992 N.Y.S.2d 52 (August 20, 2014)
The plaintiff alleged that he was injured when he fell from a scaffold while performing electrical work as part of a renovation project. The court opined that in order to hold a contractor defendant liable as an agent of the owner under Labor Law §§240(1) and 241(6), there must be a showing that the contractor had the authority to supervise and control the work. The defendant contractor’s owner testified that pursuant to his agreement with the general contractor, he provided the scaffold to be used by the plaintiff. Thus, the court held that the plaintiff had established as a matter of law that the defendant had the authority to supervise and control the work and was the statutory agent of the general contractor.
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SECOND DEPARTMENT
Practice Note: Providing a scaffold for the plaintiff’s use and the use of another was enough to show the defendant had to the authority to supervise and control the work of those using the scaffold.
Topics: Actual Supervision; Authority or Control Over Work
CRUZ V. CABLEVISION SYSTEMS CORP.120 A.D.3d 744, 992 N.Y.S.2d 281 (August 27, 2014)
The plaintiff was installing insulation 1-1/2 feet from the edge of a roof. There was a “perimeter warning system” in place that identified when a worker was within 6 feet of the roof edge and a “safety monitor” to warn workers when they were within 6 feet of the edge. The plaintiff fell 40 feet from the roof and was injured. The court held that the plaintiff made a prima facie showing that he was entitled to summary judgment on his Labor Law §240(1) claim because the court held that the “perimeter warning system” was not a proper safety device under the statute.
Practice Note: Proper protection as prescribed by Labor Law § 240(1) must be met in order to comply with the statute.
Topics: Elevation-Related Hazard; Defective or Inadequate Protection
BAUMAN V. TOWN OF ISLIP120 A.D.3d 603, 992 N.Y.S.2d 276 (August 20, 2014)
The plaintiff was injured when he tripped and fell on improperly stored electrical wire at a marina construction site owned by the defendant. The court denied the town’s motion to dismiss the plaintiff’s Labor Law §241(6) claim predicated on Industrial Code 12 NYCRR 23-1.7(e)(2), as it did not prove that the plaintiff was not injured in a “working area.” The court also denied the town’s motion to dismiss the plaintiff’s Labor Law §200 and common-law negligence claim, as the town focused exclusively on the fact that it did not control the plaintiff’s work. Where, as here, the injury arises from
a dangerous condition, an owner can be liable if it created the dangerous condition or had actual or constructive notice of same and failed to remedy the defect.
Practice Note: Be mindful of the distinction between a manner and method of work theory and a defective or dangerous condition argument.
Topics: Actual or Constructive Notice of Dangerous Conditions; Manner and Methods; Industrial Code Regulations
GARCIA V. MARKET ASSOCIATES2014 N.Y. Slip Op. 08400 (December 3, 2014)
The plaintiff was injured while working as a laborer assigned to spray water from a water truck to control dust on the site. While driving the water truck over a concrete slab, the slab gave way, and the front end of the truck fell. The court held that the defendants were entitled to summary judgment under Labor Law §240(1) because the plaintiff was not exposed to a risk from which a safety device enumerated in Labor Law §240(1) would have protected him. The construction defendants were also granted summary judgments under Labor Law §241(6) because the Industrial Code violations relied upon by the plaintiff were not applicable.
Practice Note: Be sure to address either the manner of work theory or the dangerous condition argument, or both if applicable.
Topics: Actual or Constructive Notice of Dangerous Conditions; Manner and Methods; Industrial Code Regulations
CAIAZZO V. MARK JOSEPH CONTRACTING, INC.119 A.D.3d 718, 990 N.Y.S.2d 529 (July 16, 2014)
The plaintiff was installing an air conditioning system in a one-family home. While exiting the home, the plaintiff stepped out of an elevated doorway onto a wooden spool, which was being used as a step, and the wooden spool gave way. The court granted
summary judgment to the contractor with regard to the Labor Law §§240(1) and 241(6) claims, as that defendant established that it was not a general contractor nor an agent of the owner. The court also granted that defendant summary judgment under Labor Law §200 and common-law negligence since this was a dangerous condition accident and this contractor did not have control of the work site and actual or constructive notice of the defect. With regard to the property owners, the court dismissed the Labor Law §§240(1) and 241(6) claims under the homeowners exemption. However, the court held that the owners did not establish prima facie entitlement dismissing the Labor Law §200 and common-law negligence claim because they did not prove they did not have actual or constructive notice of the defect.
Practice Note: Not all contractors are general contractors, and the homeowners exception might not eliminate all Labor Law claims.
Topics: Actual or Constructive Notice of Dangerous Conditions; One- or Two-Family Dwelling Exemption; Property Owner
RODRIQUEZ V. TRADES CONST. SERVICES CORP.121 A.D.3d 962 (October 22, 2014)
The plaintiff, a plumbing laborer, was working in a trench when the side collapsed and injured the plaintiff. The plaintiff alleged Labor Law §§200 and 241(6) violations. The court held that the defendants were entitled to summary judgment under Labor Law §241(6) because the trench in which the plaintiff was working was not more than 5 feet deep and thus 12 NYCRR 23-4.2 did not apply. Further, with regard to Labor Law §200, the court held that this was a manner and methods of work case, and the defendant would need to have had the authority to supervise and control the plaintiff work, which the court held was not the case.
Practice Note: The plaintiff must plead specific and applicable Industrial Code provisions, and in a manner and method,
SECOND DEPARTMENT
Labor Law Update | Winter/Spring 2015 • 9
the defendant must be shown to have supervised or controlled the plaintiff’s work.
Topics: Industrial Code Regulations; Manner and Methods
HARKIN V. COUNTY OF NASSAU121 A.D.3d 942 (October 22, 2014)
The plaintiff, a dockbuilder working on a floating platform at a marina, alleged violations of Labor Law §§200, 240(1), and 241(6). The court held that the defendant did not eliminate all triable issues of fact with regard to ownership of the floating platform, and thus, it was not entitled to summary judgment with regard to Labor Law §§200 and 241(6). With regard to Labor Law §240(1), the court held that the plaintiff was engaged in a protected activity since he was working at an elevated height, and thus, the lower court erred in awarding the defendant summary judgment.
Practice Note: To be entitled to summary judgment, the moving party must meet its prima facie burden. The defendant in this case failed to eliminate all triable issues of fact regarding ownership; therefore, summary judgment was denied. Further, because the plaintiff was engaged in a protected height-related activity, the court reversed the lower court’s award of summary judgment to the defendant.
Topics: Prima Facie Burden; Property Owner; Protected Activity
TREILE V. BROOKLYN TILLARY, LLC120 A.D.3d 1335, 992 N.Y.S.2d 345 (September 17, 2014)
The plaintiff was injured while unloading a bundle of steel from a flatbed truck, which fell and catapulted the plaintiff 15 feet in the air, striking the wooden plank on which the plaintiff was standing. The worker had been using crowbars to roll the bundles off the truck instead of a crane since the New York City Building Department issued a stop-work order with regard to the crane that day. The court held that the plaintiff was entitled to summary judgment under Labor
Law §240(1) since the defendant failed to provide a proper safety device to do the work. Further, with regard to the Labor Law §200 claim, the court held that the accident occurred due to the manner and methods of the work and that while one defendant had established that it did not direct nor control the plaintiff’s work, the defendant did not.
Practice Note: The plaintiff must be supplied with a proper safety device when engaged in a protected activity under Labor Law §240(1). Further, each defendant must separately establish whether or not they control the manner and methods of the plaintiff’s work with regard to Labor Law §200.
Topics: Proper Safety Device; Manner and Methods
CARRASCO V. WEISSMAN120 A.D.3d 531, 992 N.Y.S.2d 36 (August 13, 2014)
The plaintiff alleged that he was injured when he and a co-worker were installing plate glass windows. When they lifted the window to install it, the plaintiff stepped on a piece of brick and tripped, causing the window to split in half, and pieces of glass to strike the plaintiff and the co-worker. The court held that the defendant was entitled to summary judgment with regard to the plaintiff’s Labor Law §240(1) claim since it established that there was no nexus between the plaintiff’s injury and the lack of failure of an enumerated safety device. However, the court held there to be triable issues of fact under Labor Law §§241(6) and 200, as a question of fact existed as to whether the defendant was the general contractor. Further, because the issue was a dangerous condition, the defendant failed to eliminate all triable issues of fact as to whether it controlled the work site and had actual or constructive notice of the condition.
Practice Note: There must be a connection between the failure to provide a safety device and the plaintiff’s injury to establish liability under Labor Law §240(1).
Topics: Prima Facie Burden; Failure to Provide Protection
KHARIE V. SOUTH SHORE RECORD MANAGEMENT, INC.118 A.D.3d 955, 988 N.Y.S.2d 654 (June 25, 2014)
The plaintiff was injured when he fell approximately 12 feet from a shelf he was dismantling in a warehouse. The court held that the shelves that the plaintiff was working on were a “structure” under Labor Law §240(1) because they were composed of component parts attached in a definite manner. Further, the plaintiff was engaged in both alteration and demolition. Therefore, the court held that the plaintiff was entitled to summary judgment because he fell from a height while altering and/or demolishing a “structure” (the shelving), and he was not afforded proper safety equipment.
Practice Note: The plaintiff must be engaged in a protected activity.
Topics: Protected Activity; Elevation-Related Hazard; Failure to Provide Protection
BISCUP V. E.W. HOWELL, CO. INC.120 A.D.3d 459, 991 N.Y.S.2d 108 (August 6, 2014)
The plaintiff was injured when he jumped from the back of a pickup truck and slipped, alleging violations of Labor Law §§240(1) and 241(6). With regard to Labor Law §240(1), the court held that the 4- to 5-foot descent of a flatbed truck or similar surface is not the sort of elevation-related risk that triggers Labor Law protection. Further, the court held that the Industrial Code provisions relied upon by the plaintiff were not applicable to the facts of the case, and thus, the defendants were entitled to summary judgment with regard to the Labor Law §241(6) claim as well.
Practice Note: Labor Law §240(1) protection is not afforded to all elevation-related risks. Further, the Industrial Code provisions relied upon by the plaintiff must be applicable to the particular facts of the case.
10 • Labor Law Update | Winter/Spring 2015
SECOND DEPARTMENT
Topics: Industrial Code Violations; Protected Activity; Elevation-Related Hazard
VINASCO V. INTELL TIMES SQUARE HOTEL, LLC2014 N.Y. Slip. Op. 07497 (November 5, 2014)
The plaintiff, while working to remove a 200-pound metal gate, stood on an unsecured ladder without a harness. The gate fell and struck the ladder, and the plaintiff fell to the ground. The court held that the plaintiff’s CPLR §4401 motion should have been granted and the plaintiff was entitled to judgment as a matter of law with regard to his Labor Law §240(1) claim, as the hoist and ladder were clearly inadequate.
Practice Note: Since this was an appeal of the plaintiff’s motion during trial pursuant to CPLR 4401, the Appellate Division viewed the evidence in the light most favorable to the defendant and found that there was no rational basis upon which the jury could have found that defendants did not violate §241.
Topics: Causation; Elevation-Related Hazard; Unsecured Ladder
ABELLEIRA V. CITY OF NEW YORK120 A.D.3d 1163, 992 N.Y.S.2d 324 (September 10, 2014)
The plaintiff, while using a pneumatic pipe plug to check for leaks, was propelled into the air and onto an I-beam when the plug exploded. With regard to the Labor Law §200 claim, the court held that because the plaintiff failed to prove that the defendants had the authority to control or supervise the work, the plaintiff was not entitled to summary judgment. The court also held that this could be considered a dangerous condition case, and because the plaintiff failed to prove that the defendants either created the condition or had actual or constructive notice of it, the plaintiff was not entitled to summary judgment. With regard to the Labor Law §241(6) claim, the court held that the two Industrial Code provisions relied upon by the plaintiff (12 NYCRR 23-
9.2(a) and (b)(1)), were not applicable and further that (b)(1) was a general safety standard that does not give rise to a non-delegable duty.
Practice Note: With regard to Labor Law §200, consider both the manner and methods theory as well as the dangerous or defective condition theory. Additionally, be sure to evaluate the applicability of the Industrial Code regulations.
Topics: Manner and Methods; Industrial Code Regulations
HUCKE V. SUFFOLK COUNTY WATER AUTHORITY119 A.D.3d 735, 989 N.Y.S.2d 333 (July 16, 2014)
The plaintiff claimed he was injured when he fell from a scaffold, which he claimed was due to the failure to provide guardrails. The court held that the plaintiff was not entitled to summary judgment under Labor Law §240(1) because the defendant raised a triable question of fact as to whether the plaintiff’s fall was caused by the lack of guardrails or a sudden loss of consciousness just prior to the fall.
Practice Note: The lack of a proper safety device must be the proximate cause of the plaintiff’s injuries under Labor Law §240(1). Topics: Defective or Inadequate Safety Equipment; Failure to Provide Protection; Sole Proximate Cause
DESENA V. NORTH SHORE HEBREW ACADEMY119 A.D.3d 631, 989 N.Y.S.2d 505 (July 9, 2014)
The plaintiff, while working as a masonry laborer on a school construction project, was injured when a stone block fell off a pallet and struck his foot. The plaintiff alleged Labor Law §§ 240(1), 241(6), and 241-a violations. The court held that the defendants failed to show that the injuries were a general hazard and not the consequence of failing to provide a proper safety device. The court did grant
the defendants’ motion under Labor Law §241(6) as the Industrial Code provisions 12 NYCRR 23-2.1 cited by the plaintiff were not applicable. Since this was not a passageway, walkway, stairway, or thoroughfare, 12 NYCRR 23-1.7(e)(2) requires that working areas be kept clear of tools and materials and was not applicable; and 12 NYCRR 23-2.1(a)(2) deals with the safe carrying limits of materials on a floor and was held not to apply as well. Finally, the court granted the defendants’ motion regarding Labor Law §241-a because this accident did not occur in an elevator shaft, hatchway, or stairwell.
Practice Note: Industrial Code Regulations must apply to the facts of the case.
Topics: Defective or Inadequate Safety Equipment; Industrial Code Regulations
PEREZ V. HUDSON DESIGN ARCHITECTURE & CONSTRUCTION121 A.D.3d 877, 994 N.Y.S.2d 664 (October 15, 2014)
The court held that the construction management defendant was entitled to summary judgment with regard to Labor Law §240(1) as it demonstrated that it did not have the authority to supervise or control the activity that caused the plaintiff’s injury. With regard to the Labor Law §241(6), the same defendant established that the alleged Industrial Code violation was not the proximate cause of the plaintiff’s injury, and won summary judgment on that claim as well.
Practice Note: To hold a construction manager liable under Labor Law §240(1), the plaintiff must establish that they supervised and controlled the activity that caused the plaintiff’s injury.
Topics: Industrial Code Regulations; Causation; Actual Supervision
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MORA V. NAKASH118 A.D.3d 964, 989 N.Y.S.2d 484 (June 25, 2014)
The plaintiff was injured while working on a single-family home. While he was using an A-frame ladder on top of a scaffold, the ladder moved and the plaintiff fell. The homeowners were awarded summary judgment with regard to the plaintiff’s Labor Law §240(1) claims as they owned a single-family home and did not control or direct the plaintiff’s work. However, the court also held that the plaintiff was not entitled to summary judgment on his Labor Law §240(1) claim against the general contractor because the contractor raised a triable issue of fact as to whether or not it controlled the plaintiff’s work and whether or not the plaintiff was the sole proximate cause of his own accident.
Practice Note: A single-family home owner that does not control the plaintiff’s work may be entitled to the protection of the One or Two-Family Dwelling Exemption.
Topics: One- or Two-Family Dwelling Exemption; Sole Proximate Cause
PERLA V. DAYTREE CUSTOM BUILDERS, INC.119 A.D.3d 758, 989 N.Y.S.2d 322(July 16, 2014)
The plaintiff was injured when he fell off the roof of a house being constructed, for which he received workers’ compensation benefits from his employer. The plaintiff thereafter asserted this third-party lawsuit alleging violations of Labor Law §240(1). The court held that the plaintiff was not entitled to summary judgment because there was a question of fact as to whether or not the defendant was an alter ego of the plaintiff’s employer, and whether or not the exclusive remedy of the plaintiff would be provided by the Workers’ Compensation Law.
Practice Note: The Workers’ Compensation Law prevents a plaintiff from suing his own employer directly.
Topics: Workers Compensation Law
MARAGLIANO V. PORT AUTHORITY OF N.Y. & N.J.119 A.D.3d 534, 987 N.Y.S.2d 885 (July 2, 2014)
The court held that the Port Authority established that the plaintiff was not engaged in construction within the meaning of Labor Law §240(1) and was not working within a construction area within the meaning of Labor Law §241(6). Since the plaintiff failed to raise a triable issue of fact, the court held that the Supreme Court properly granted the Port Authority’s motion for summary judgment with regard to the allegations of Labor Law §§240(1) and 241(6) violations. Further, on renewal, the Supreme Court properly granted the contractor’s motion for summary judgment as to the same alleged violations based upon the law-of-the-case doctrine.
Practice Note: The plaintiff must be engaged in a protected activity in a protected area to be protected under the Labor Law.
Topics: Protected Activity
SECOND DEPARTMENT
Labor Law Update | Winter/Spring 2015 • 11
12 • Labor Law Update | Winter/Spring 2015
THIRD DEPARTMENT
FABIANO V. STATE OF NEW YORK2014 N.Y. Slip. Op. 08695 (December 11, 2014)
The claimant was painting a bridge when he stepped on a scaffold plank that collapsed. Judgment granting summary judgment to the claimant was affirmed. The defendant asserted that the claimant was recalcitrant for failing to use an available safety harness. The court rejected this argument, noting that the scaffold, which was a primary safety device, failed and the claimant’s failure to wear a harness, which was a secondary safety device, cannot be held to be the sole proximate cause of the accident. Practice Note: This case shows that even though a plaintiff fails to use an available safety harness, such omission needs to be the sole proximate cause of the accident. Here, the plank’s collapse was found to be the proximate cause of the accident.
Topics: Sole Proximate Cause; Defective or Inadequate Protection
NALEPA V. SOUTH HILL BUSINESS CAMPUS, LLC2014 WL 6803011 (December 4, 2014)
The plaintiff used a folded 10-foot A-frame ladder in a bathroom. The bottom of the ladder slipped when the plaintiff was halfway up the ladder, causing the plaintiff to fall to the floor. The defendant’s expert examined the ladder and found it to be in good working order and in a safe, useable condition. The plaintiff testified at his deposition there was no reason he could not have opened the ladder and was aware that using a folded ladder was against his safety training. The court held that the plaintiff’s misuse of the ladder was the sole proximate cause of the accident and dismissed the complaint. Practice Note: This case points out the need for an early investigation — to show that the ladder was in good working condition at the time of the accident. If the defendant’s expert examined the ladder years later, the opinion would most likely have been dismissed as speculative. It also
shows the need for a proper deposition of the plaintiff. The plaintiff’s admission that there was no reason the ladder could not have been opened and that it violated his safety training allowed the court to dismiss the complaint outright instead of merely finding an issue of fact, which would require a trial.
Topics: Expert Retention; Sole Proximate Cause
PECK V. SZWARCBERG122 A.D.3d 1216 (November 26, 2014)
The plaintiff’s decedent was killed when the excavator he was operating fell into the trench he was digging, and the trench collapsed, burying him. The defendant was the owner of the one-family dwelling, and had hired an architect and purchased a building permit for the home expansion the decedent was working on. The defendant also hired various contractors to do the work. The plaintiff’s estate brought an action against the defendant homeowner claiming violations of Labor Law §§200, 240 and 241(6). The defendant homeowner, in turn, brought a third-party action against the plaintiff’s employer. The court dismissed the complaint and the third-party complaint based on the one- or two-family exception to Labor Law §§240 and 241(6). The plaintiff argued that defendant homeowner was acting as his own general contractor, and therefore was not entitled to the exception. The court disagreed, noting that the relevant inquiry is the degree to which the homeowner supervised the method and manner of the actual work being performed by the injured plaintiff. The contractor hired by the defendant homeowner testified that the homeowner did not direct or control the work, and that he, the contractor, told the plaintiff how to dig the trench. Practice Note: This is a rather straightforward and predictable decision, as the case law on the one- or two-family exception is very well established.
Topics: Authority or Control Over Work; One- or Two-Family Dwelling Exemption
ORTMAN V. LOGSDON121 A.D.3d 1388 (October 23, 2014).
The plaintiff was assisting in constructing a pole barn for a horse boarding business. He claims he was injured when a purlin near the peak of the roof broke, causing him to fall to the ground. His summary judgment motion on liability under Labor Law §240 was denied due to questions about how the accident occurred and the availability, feasibility, and adequacy of safety devices provided to the plaintiff. The plaintiff and the contractor both originally told medical personnel that the plaintiff fell from a hay mound or a hay loft to have the contractor’s workers’ compensation carrier cover the injuries. The versions of the accident in the record included that he was inside the purlin, outside the purlin, and that he fell 15 feet to 35 feet. Also, although the defendant owners testified that they did not provide the plaintiff with any protective equipment, there was testimony that there was at least one extension ladder on the work site and the plaintiff testified that he had used the ladder to install the purlins, and therefore this was not a case of a complete absence of safety equipment. The myriad of different versions about how the accident happened was fatal to the plaintiff’s motion for summary judgment. Practice Note: The plaintiff’s admission that he had given a different version of the accident so that the employer’s workers’ compensation carrier would cover the injuries was the nail in the coffin of his summary judgment motion.
Topics: Failure to Provide Protection; Unsecured Ladder
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GAETANO FARRUGGIA V. TOWN OF PENFIELD, ET AL.989 N.Y.S.2d 715, 119 A.D.3d 1320 (July 3, 2014)
The plaintiff was injured when a backhoe he was operating fell into a ravine. The court dismissed the plaintiff’s §§240(1) and 241(6) causes of action against the defendant, as the defendant was not the owner of the area where the accident occurred and the subject area was not part of the construction site. The court further noted that the plaintiff’s accident did not involve an elevation-related risk subject to protection under §240(1). The plaintiff’s common-law negligence and §200 claims were dismissed as the defendant did not occupy, own, control, or employ special use of the accident location. The plaintiff’s common-law negligence and §200 claims against the defendant property owner survived dismissal.
Practice Note: The court noted that although an “owner” is not limited to the titleholder of the property and includes a person who has an interest in the property, the plaintiff’s accident occurred on a private property that was outside of defendant’s interest.
Topics: Elevation-Related Hazard; Common-Law Negligence
FOURTH DEPARTMENT
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14 • Labor Law Update | Winter/Spring 2015
FOURTH DEPARTMENTFOURTH DEPARTMENT
ROBERT BISH V. ODELL FARMS PARTNERSHIP989 N.Y.S.2d 719, 119 A.D.3d 1337 (July 3, 2014)
The plaintiff was injured while cleaning his employer’s cement truck on the defendant’s property after a delivery. The court found that plaintiff’s routine cleaning of the truck was not the kind of activity protected by the Labor Law and dismissed the plaintiff’s §240(1) claim. The plaintiff’s §241(6) claim was also dismissed because he was not engaged in “construction work” when the incident occurred.
Practice Note: The plaintiff’s previous act of delivering concrete to a construction project and operating the truck’s machinery to pour the concrete was insufficient to create an issue of fact as to whether he was engaged in construction work. Topics: Routine Maintenance; Protected Activity
JAMES FOOTS V. CONSOLIDATED BUILDING CONTRACTORS, INC., ET AL.989 N.Y.S.2d 723, 119 A.D.3d 1324 (July 3, 2014)
The plaintiff was injured when he drove a forklift over a plywood-covered pit, constructed by a defendant subcontractor, in the floor of a building owned by a defendant owner. The court denied the defendant owner’s motion for summary judgment, noting that regarding plaintiff’s §200 claim related to a defective or dangerous condition at a work site, issues of fact existed as to whether the owner exercised control over the work site and had notice of the allegedly dangerous condition. The court denied the plaintiff’s and owner’s motions for summary judgment on the §240(1) and §241(6) claims, finding issues of fact as to whether the plaintiff was engaged in activity protected by the Labor Law. The court dismissed the plaintiff’s §200, §240(1) and §241(6) claims against the defendant subcontractor as it had completed its work, was not at the work site when the accident occurred, and did not have the authority to supervise or control the work. Additionally, the court dismissed the defendant owner’s claims for common-law and contractual
indemnification. In reaching it decision, the court noted that the owner did not establish the subcontractor was negligent or that it exercised actual supervision or control over the injury-producing work.
Practice Note: The court noted that §200 claims are not limited to construction work. As such, the defendant had to establish that it did not control the work site and that it lacked notice of the alleged dangerous condition.
Topics: Actual or Constructive Notice of Dangerous Conditions; Authority or Control Over Work; Protected Activity; Contractual Indemnification
MICHAEL WROBEL V. TOWN OF PENDLETON, ET AL. 991 N.Y.S.2d 218, 120 A.D.3d 963 (August 8, 2014)
The plaintiff was injured when he stepped into a hole on a county road that was 3 to 4 feet deep and filled with rainwater. The court dismissed the plaintiff’s §200, §240(1), and §241(6) claims against the town’s architect, as it did not direct or control the work activities other than planning or design. The plaintiff’s common-law negligence claim against the architect was dismissed because there was no evidence that the architect failed to use due care in the exercise of its professional services. The plaintiff’s §240(1) claim against the county was dismissed because the plaintiff falling into a hole at ground level was not an elevation-related hazard. The court also dismissed the plaintiff’s §241(6) claim based on a violation of 12 NYCRR 23-4.2(h), holding that the plaintiff, as an employee at the work site, did not fall within the class of people intended to be protected by the regulation.
Practice Note: The claim against the defendant architect was dismissed because the architect was only involved in the planning and design stage and did not direct or control the work.
Topics: Authority or Control Over Work; Elevation-Related Hazard; Industrial Code Regulations
DAVID KRAJNIK V. FORBES HOMES, INC., ET AL.991 N.Y.S.2d 196, 120 A.D.3d 902 (August 8, 2014)
The plaintiff fell between the attic floor joists to the floor of the foyer below after he tried to reach a window for an inspection using a makeshift ladder. The plaintiff’s claims against the general contractor under §240(1), §241(6), and §200 were dismissed because there was no evidence that the defendant exercised any authority or control over the work site or the injury-producing work. The court denied defendant’s motion for dismissal of the plaintiff’s common-law negligence cause of action, finding that there was an issue of fact as to whether the defendant’s employee negligently installed the makeshift ladder. The same issue of fact as to the negligent installation of the makeshift ladder also precluded summary judgment on the contractual and common-law indemnification claims.
Practice Note: Although the defendant subcontractor was entitled to dismissal of the §§240(1) and 241(6) claims, the common-law negligence claim against it survived as there was an issue of fact as to whether the subcontractor created an unreasonable risk of harm.
Topics: Authority or Control Over Work; Contractual Indemnification; Common-Law Negligence
SEYMOUR MILES V. BUFFALO STATE ALUMNI ASSOC., INC., ET AL. 993 N.Y.S.2d 852, 121 A.D.3d 1573 (October 3, 2014)
As the plaintiff and a co-worker were removing a sheet of drywall from a wheeled cart, the remaining drywall on the cart moved, causing the cart to topple over and strike the plaintiff. The court dismissed the plaintiff’s §240(1) claim, finding that the plaintiff’s injuries were not the result of a significant height differential. Rather, it found that the plaintiff’s incident resulted from a general hazard encountered at a construction site. The plaintiff’s §241(6) claims were dismissed because the industrial codes relied upon by plaintiff were inapplicable.
FOURTH DEPARTMENT
Labor Law Update | Winter/Spring 2015 • 15
Practice Note: In reaching its decision, the court noted that the plaintiff was standing on the ground, the drywall was not being hoisted or secured, the cart was not being hoisted or moved vertically, and blocks or stays would not have protected the plaintiff from the effects of gravity.
Topics: Elevation-Related Hazard; Industrial Code Regulations; Routine Workplace Risk
JAMES JONES V. COUNTY OF ERIE, ET AL.993 N.Y.S.2d 846, 121 A.D.3d 1500 (October 3, 2014)
The plaintiff was injured when he fell out of a tree while trimming its branches. The court dismissed the plaintiff’s common-law negligence and §200 claims as none of the defendants supervised the means or methods of his work. Additionally, the court found that the dangers attendant to climbing the tree were inherent in the work itself and was not created by a defendant employee’s instruction to the plaintiff to cut the branch.
Practice Note: To establish a duty under §200, the party charged with that responsibility must have the authority to control the activity bringing about the injury.
Topics: Authority or Control Over Work; Common-Law Negligence; Routine Maintenance
DAVID LEATHERS V. ZAEPFEL DEVELOPMENT COMPANY, INC., ET AL. 993 N.Y.S.2d 817, 121 A.D.3d 1500 (October 3, 2014)
The plaintiff, a senior technician assigned to a corrosion chamber, was injured when he fell from a stepladder while climbing out of the chamber after cleaning and unclogging it. The court dismissed the plaintiff’s §240(1) claim, finding that the plaintiff was not engaged in a protected activity as he was performing routine maintenance in a non-construction, non-renovation context, and was not “repairing” the chamber. Among the factors the court considered in its determination, the court
noted that the chamber was not inoperable, neither the chamber nor its components required repairs, and the plaintiff did not use specialized tools to perform the work. The court also dismissed the plaintiff’s §200 cause of action because the plaintiff’s accident occurred from the manner the work was performed, not from a dangerous condition on the premises, and the defendants exercised no supervisory control over the work.
Practice Note: The court’s decision provides a list of factors it considered in determining whether the activity was repair or maintenance.
Topics: Manner and Methods; Protected Activity; Routine Maintenance
CHERYL D. MAYER V. MATTHEW CONRAD, ET AL.2014 N.Y. Slip Op. 08149, 2014 WL 6494550 (November 21, 2014)
This wrongful death action commenced after the decedent was fatally injured at a construction site for a new home. Several weeks prior to the incident, a portion of the property was excavated for a walk-out basement on the south side of the building, leaving a 7- to 9-foot-high vertical embankment. While the plaintiff was working on a trench on the south side of the home, the excavated embankment collapsed on him. The court ruled that issues of fact precluded dismissal of the plaintiff’s §200 and common-law negligence claims. The court held that the plaintiff’s claims did not fall under a “manner and method of work” case but, rather, fell into the dangerous or defective premises condition at a work site. The court noted that the embankment had been “transformed into a premises condition” as it been created several weeks prior to the accident and no one was working on it at the time of the incident. Additionally, there was an issue of fact to whether the defendant had notice of the allegedly dangerous condition. The court also dismissed the defendant’s claim for common-law indemnification as there was no way the defendant could be
held vicariously liable to plaintiff for the negligence of the third-party defendant.
Practice Note: The court held that the embankment had been “transformed” into a premises condition because it been on the premises for several weeks prior to the accident and no one was working on the embankment at the time of the accident.
Topics: Actual or Constructive Notice of Dangerous Conditions; Manner and Methods; Vicarious Liability
16 • Labor Law Update | Winter/Spring 2015
A
Actual or Constructive Notice of Dangerous Conditions 3, 5, 6, 8, 14, 15
Actual Supervision 8, 10Application of Labor Law 2, 3, 4, 5, 6, 7Authority or Control Over Work 3, 4, 6,
8, 12, 14, 15
B
Burden of Proof 4
C
Causation 10Common-Law Indemnification 3Common-Law Negligence 4, 13, 14, 15Contractual Indemnification 3, 14
D
Defective or Inadequate Protection 8, 12
Defective or Inadequate Safety Equipment 10
E
Elevation-Related Hazard 5, 8, 9, 10, 13, 14, 15
Expert Retention 12
F
Failure to Provide Protection 5, 7, 9, 10, 12
Falling Objects 4, 5
G
Gravity-Related Risk 6
I
Industrial Code Regulations 3, 6, 7, 8, 9, 10, 14, 15
Industrial Code Violations 7, 10
M
Manner and Methods 4, 6, 8, 9 , 10, 15
O
One- or Two-Family Dwelling Exemption 5, 8 , 11, 12
P
Prima Facie Burden 9Proper Safety Device 9Property Owner 8, 9Protected Activity 3, 4, 5, 6, 7, 9, 10,
11, 14, 15
R
Recalcitrant Worker 5, 7Routine Maintenance 4, 5, 7, 14, 15Routine Workplace Risk 15
S
Sole Proximate Cause 4, 5, 7, 10, 11, 12
U
Unsecured Ladder 7, 10, 12
V
Vicarious Liability 15
W
Workers Compensation Law 11
TOPICS INDEX
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Goldberg Segalla | Winter/Spring 2015
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GREENSBORO 800 Green Valley Road, Suite 302 | Greensboro, North Carolina 27408-7030 | Phone 336.419.4900
HARTFORD 100 Pearl Street, Suite 1100 | Hartford, Connecticut 06103-4506 | Phone 860.760.3300
PRINCETON 902 Carnegie Center, Suite 100 | Princeton, New Jersey 08540-6530 | Phone 609.986.1300
BUFFALO 665 Main Street, Suite 400 | Buffalo, New York 14203-1425 | Phone 716.566.5400
ROCHESTER 2 State Street, Suite 1200 | Rochester, New York 14614-1342 | Phone 585.295.5400
SYRACUSE 5786 Widewaters Parkway | Syracuse, New York 13214-1840 | Phone 315.413.5400
ALBANY 8 Southwoods Boulevard, Suite 300 | Albany, New York 12211-2364 | Phone 518.463.5400
WHITE PLAINS 11 Martine Avenue, Suite 750 | White Plains, New York 10606-1934 | Phone 914.798.5400
GARDEN CITY 200 Garden City Plaza, Suite 520 | Garden City, New York 11530-3203 | Phone 516.281.9800The London office of Goldberg Segalla is operated by Goldberg Segalla Global LLP, a limited liability partnership registered in England and Wales under number OC373080.
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