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Moscinski v Quadrum 38 LLC
April 2, 2024
Appellate Division, First Department
Plaintiff was injured when a fire extinguisher stand fell on his foot. The trial court granted plaintiff's motion for summary judgment on his Labor Law § 200 claim, finding that defendants could not raise an issue of fact because they were precluded from offering any evidence as to the condition of the fire extinguisher due to spoliation.
 Labor Law § 200 and Common-Law Negligence (EDA)
The First Department unanimously affirmed the trial court’s determination that plaintiff demonstrated his entitlement to summary judgment based on his expert's opinion that the stand was not constructed in a manner consistent with applicable codes, standards, and accepted construction site practices. In opposition, defendants could not raise an issue of fact as they were precluded from offering any evidence as to the condition of the fire extinguisher due to their admitted failure to preserve the fire extinguisher. The trial court held that such failure constituted spoliation, and the First Department found the adverse inference charge and preclusion against defendants was reasonable.
Nunez v SY Prospect LLC
April 2, 2024
Appellate Division, First Department
Plaintiff was assigned to work on a ladder to caulk and paint a stairwell in defendant’s building and fell when the ladder abruptly shook. The trial court granted plaintiff's motion for partial summary judgment against SY Prospect on his Labor Law § 240(1) claim.
 Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s decision. The Court held that defendant did not present any evidence that appropriate safety equipment was available to secure the ladder or prevent a fall, nor did they refute plaintiff’s testimony that he was not provided with any safety devices. An affidavit from plaintiff’ supervisor stating, without elaboration, that he observed plaintiff ascend “the wrong side of the ladder,” so he told plaintiff to “go up the other side” was deemed conclusory by the Court because it remained undisputed that no adequate safety devices were provided under Law § 240(1). Accordingly, any alleged discrepancies in plaintiff’s testimony were deemed insufficient by the Court to create an issue of fact because it was undisputed that plaintiff lost his balance and fell from an unsecured ladder.
PRACTICE POINT: A defendant cannot raise an issue of fact as to whether plaintiff’s conduct was the sole proximate cause without presenting evidence to show that appropriate safety equipment was available to plaintiff, and that he or she then unreasonably chose not to use it. We wonder if the result would still be the same if the defendant obtained an expert affidavit supporting their sole proximate defense. In any event, plaintiff’s alleged failure to go up the “right” side of the ladder was, at most, comparative negligence, which is not sufficient to defeat plaintiff’s motion for partial summary judgment under § 240(1).
Merlo v LCOR 55 Bank St. LLC
April 4, 2024
Appellate Division, First Department
Plaintiff was injured when he tripped over an uncovered and unmarked 8-inch hole opening, which constituted a tripping hazard within the “passageway” that had been formed by construction material. The trial court denied plaintiff's motion for partial summary judgment on liability on his Labor Law §§ 241(6), 200 and common-law negligence claims.
 Labor Law § 241(6) (TPW)
In the brief decision, the First Department unanimously affirmed the trial court’s decision to deny plaintiff’s motion for summary judgment on its merits since questions of fact existed as to whether plaintiff's fall occurred in a passageway so as to implicate Industrial Code (12 NYCRR) § 23-1.7(e)(1).
Labor Law § 200 and Common-Law Negligence (EDA)
The First Department affirmed the trial court’s finding that questions of fact existed as to whether defendants had notice of the condition that caused plaintiff's fall.
Ragoo v Port Auth. of N.Y. & N.J.
April 4, 2024
Appellate Division, First Department
Plaintiff tripped and fell on debris in a passageway he passed through to speak with a truck driver about the concrete delivery taking place that day. The trial court denied plaintiff's motion for summary judgment on the Labor Law § 241(6) claim predicated on an alleged violation of Industrial Code (12 NYCRR) § 23-1.7(e)(1).
Labor Law § 241(6) (TPW)
The First Department unanimously affirmed the trial court’s decision denying plaintiff’s motion for summary judgment on the issue of Labor Law § 241(6) liability premised on a violation of Industrial Code § 23-1.7(e)(1). The Court held that the trial court properly found issues of fact existed as to whether it was necessary for plaintiff to traverse the area where he tripped and fell on debris given plaintiff’s testimony that he used the passageway to speak with a truck drivers, which was in contrasts to the supervisor’s testimony that plaintiff was given a very specific route to follow to and from the jobsite and there was no reason for plaintiff to be in that area where he fell. The Court also held that the conflicting testimony as to whether the area where plaintiff's accident occurred was off limits or routinely used by subcontractors to access the site was sufficient to create an issue of fact.
Solis v 340 W. 12 Realty LLC
April 4, 2024
Appellate Division, First Department
Defendant, an LLC whose managing member is nonparty Todd Cohen, a real estate developer, acquired a two-family residential property that it converted into a one-family property. Plaintiff was injured while working on demolition at the property. In the prior motion for summary judgment, defendant demonstrated that it was entitled to the protection of the homeowner's exemption and dismissal of the Labor Law §§ 240(1) and 241(6) claims by submitting Cohen's testimony that he intended to use the property solely for residential purposes, but plaintiff raised an issue of fact. Defendant moved to reargue. In support of its motion, defendant submitted another affidavit from Cohen, averring that he and his family had moved into the property after the renovations were completed.
The trial court denied defendant's motion to renew its motion for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims against it based on the homeowner's exemption.
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s determination. The motion to renew was properly denied, because although defendant offered new facts in support of the motion, the new facts would not have changed the prior decision because the fact that the family moved into the property after the accident does not change the result.
PRACTICE POINT: The availability of the homeowners’ exemption to liability under Labor Law §§ 240(1) and 241(6) in a particular case turns on the nature of the site and the purpose of the work being performed and must be based on the owner’s intentions at the time of the injury. Here, defendant could not show that, at the time of the accident, the property was not being used for a commercial purpose and that the injury-producing work was not related to the commercial purpose of the property.
Valenti v Metropolitan Transp. Auth.
April 11, 2024
Appellate Division, First Department
TBTA entered into a contract with American Bridge, the general contractor, to bomb proof the Throgs Neck bridge. Village Dock was the subcontractor. At the time of the accident, plaintiffs were passengers inside a minibus owned by their employer, American Bridge. American Bridge was responsible for transporting its workers to their designated locations to perform reinforcement work on the bridge's towers. James Smith was driving a tractor trailer down the southbound middle lane of the bridge. One of the vehicles in the convoy delivering workers attempted to change lanes and while avoiding the oncoming truck, struck the American Bridge minibus, carrying plaintiffs.
The trial court granted the motions of MTA and TBTA and American Bridge for summary judgment dismissing plaintiffs' Labor Law §§ 200 and 241(6) claims, denied plaintiff Jason Lawrence's motion for summary judgment on his claim that he suffered a serious injury under the No-Fault Law threshold category of 90 out of 180 days, granted American Bridge's motion for summary judgment dismissing Lawrence's 90/180-day claim, and granted plaintiffs' motions for summary judgment on liability as against defendants Luis Eduardo Mendoza and Village Dock.
Labor Law § 241(6) (TPW)
The First Department affirmed that part of the trial court’s decision pertaining to the Labor Law § 241(6) claim based on an alleged violation of Industrial Code § 23-1.29. The Court determined that the trial court correctly dismissed the claim as not applicable to the underlying facts because plaintiff was injured in a drop-off area, which might have been part of the larger work site, but was not plaintiffs' work area, and, thus, that provision was deemed inapplicable.
Labor Law § 200 and Common-Law Negligence (EDA)
The First Department affirmed the trial court’s finding that TBTA and MTA did not supervise or control the means and methods of the drop-off procedures for workers at the Throgs Neck Bridge, which was left to the general contractor American Bridge. The presence of a TBTA officer, whose job was to ensure that the workers being transported were identified as being on the appropriate lists and to open secure areas of the work site, as needed, is insufficient evidence of control and supervision.
Blacio v Related Constr. LLC
April 11, 2024
Appellate Division, First Department
Plaintiff and a coworker were transporting large wooden panels from the basement to the 12th floor of a construction project. To transport the panels, they had to walk past a stairway on the 12th floor. As plaintiff walked past the stairway, he fell through an unguarded stairway opening. The trial court denied plaintiff's motion for partial summary judgment under Labor Law § 240(1).
Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court’s decision and granted plaintiff’s motion under Labor Law § 240(1) because he was not provided with adequate protection to prevent his fall into the unguarded stairway opening. Liability under that statute is not dependent on a finding that the owner or general contractor had notice of the violation. Moreover, the Court held that defendants failed to raise an issue of fact as to whether plaintiff was the sole proximate cause of his injuries as their assertion that plaintiff removed the plywood barrier is speculative. Finally, the Court held that the motion was not premature as defendants also failed to show that facts essential to their opposition were within plaintiff’s exclusive knowledge.
PRACTICE POINT: The fact that no depositions were taken does not preclude summary judgment in plaintiff’s favor, where, as here, defendants failed to show that discovery might lead to facts that would support their opposition to the motion. If you want to argue that deposition testimony might further illuminate the issues in dispute, then you should obtain affidavits setting forth your evidence or your argument is undermined by your failure to obtain whatever testimony you need to oppose a plaintiff’s motion for summary judgment under Labor Law § 240(1).
Bartley v 76 Eleventh Ave. Prop. Owner LLC
April 18, 2024
Appellate Division, First Department
Plaintiff was injured while working as an employee of a subcontractor of Omnibuild at defendant’s construction site. Plaintiff testified that he was assigned to strip wooden forms from overhead concrete beams as part of the construction of a tower; that the forms were supported by jacks, which were placed every few feet; and that, while he was underneath the forms stabilizing a loosened jack, the beam, ribs, and another jack fell onto his head and shoulder. The trial court granted plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim.
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s decision. The type of work performed involved a load that required securing, and defendants did not demonstrate that the presence of the jacks defeated the task of stripping the forms from concrete beams. The Court held the record established that the furnished jacks were safety devices intended to shield plaintiff from gravity-related hazards, and the accident was caused by the inadequacy of the jacks supporting the forms.
Any claimed discrepancies between plaintiff’s sworn testimony and an incident report form filled out by his employer are insufficient to create an issue of fact where it is undisputed that plaintiff was injured when the beam and ribs slipped off the jacks and fell, and defendants’ contention that the incident may not have occurred is speculative.
PRACTICE POINT: The single decisive question under Labor Law § 240(1) is whether plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against harm directly flowing from the application of the force of gravity to an object or person (see Runner v New York Stock Exch., Inc. 13 NY3d 599, 604 [2009]). Here, the evaluation-related safety device, the jacks, were inadequate to shield plaintiff from harm directly flowing from the application of the force of gravity to the jacks.
Brown v Tishman Constr. Corp. of N.Y.
April 18, 2024
Appellate Division, First Department
Plaintiff was injured at a construction project when, while attempting to step over rebar, his coworker picked up the rebar, striking plaintiff in the shin and caused him to fall. At the time of accident, plaintiff's coworker was preparing a wall for concrete pouring by "stuffing" it with rebar, and the rebar on which plaintiff tripped was lifted during this process. Defendant BOP is the owner of the premises under construction, and Tishman was the construction manager. The trial court denied plaintiff's motion for summary judgment on his Labor Law § 241(6) claims, granted Tishman and BOP's motion for summary judgment dismissing the § 241(6) claims but denied their motion with respect to the Labor Law § 200 and common-law negligence claims as against Tishman.
Labor Law § 241(6) (TPW)
The First Department unanimously affirmed the trial court’s determination to dismiss plaintiff's Labor Law § 241(6) claim. The Court held that plaintiff's claim based on Industrial Code § 23-1.7(e)(1) was properly dismissed given that plaintiff's accident occurred in an open working area, not a passageway. Further, the Court deemed Industrial Code § 23-1.7(e)(2) inapplicable as the rebar did not constitute debris but rather was consistent with the work being performed at the site. Finally, the Labor Law § 241(6) claim predicated on Industrial Code § 23-2.1(a)(1) was also correctly dismissed because the rebar was not in storage but was being installed at the time of his accident.
Labor Law § 200 and Common-Law Negligence (EDA)
The First Department affirmed the trial court’s finding that Tishman was not entitled to dismissal of plaintiff's Labor Law § 200 and common-law negligence claims against it because it failed to meet its prima facie burden. Plaintiff testified that his coworker created the rebar pile for about an hour before his accident; that he and some of his other coworkers complained to the coworker about the rebar; and that after his accident occurred, Tishman's “safety guy” helped him up, demonstrating notice. As to Tishman's authority to control the injury-producing work, plaintiff testified that personnel from Tishman would on occasion tell him how to perform his work and whether he was performing it in an unsafe manner. Moreover, Tishman's representative testified that he had the authority to stop any work that he deemed to be unsafe.
Clarke v Consolidated Edison Co. of N.Y., Inc.
April 18, 2024
Appellate Division, First Department
Plaintiff was injured when he fell into an open manhole while he was performing work for his employer, which contracted with defendant to perform underground inspections and repairs of network distribution equipment. The trial court granted defendant's motion for summary judgment dismissing plaintiff's Labor Law §§ 240(1) and 241(6) claims.
Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court’s decision and denied the motion. The language of the contract between defendant and plaintiff’s employer, as well as the testimony of plaintiff and defendant’s representative, raised an issue of fact as to whether plaintiff was engaged in a protected activity under Labor Law § 240(1) at the time of his accident.
PRACTICE POINT: An open manhole is an elevated-related risk that Labor Law § 240(1) is intended to protect against.
Guaraca v West 25th St. Hous. Dev. Fund Corp.
April 23, 2024
Appellate Division, First Department
Plaintiff, a masonry worker, was instructed to build a wall around a trash chute hole adjacent to an air conditioning duct hole on the second floor. Plaintiff jumped on a piece of plywood covering the duct hole to test its strength, the unsecured planking cracked, and he fell two stories to the basement. The trial court granted plaintiff's motion for partial summary judgment under Labor Law §§ 240(1) and 241(6) against West 25th Street, BRC Landing, BRC Landing Road II and The J. Pilla Group Ltd. (Defendants).
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s decision because plaintiff established a violation of the statute by showing that the plywood cover on the hole was an inadequate safety device because it was not secured at the time of the accident. The Court rejected the recalcitrant worker defense as there is no evidence in the record that a second piece of plywood, which plaintiff allegedly believed was unnecessary, would have constituted an adequate safety device (as opposed to a reinforced and secured planking). If plaintiff was allegedly negligent in testing the plywood, then that would go comparative negligence, which is not a defense available under Labor Law § 240(1).
PRACTICE POINT: Plaintiff’s Labor Law § 240(1) claim does not depend on a finding that defendants were in control of the worksite. All that plaintiff is required to establish is that defendants breached their nondelegable duty to furnish or erect, or caused to be furnished or erected, safety devices in a manner that gave him proper protection from gravity-related risks. Court repeatedly hold § 240(1) is violated when a worker falls through unprotected floor openings. Plaintiff in this case established a violation of Labor Law § 240(1) by showing that the piece of plywood was an inadequate safety device because it was not secured at the time of the accident.
Labor Law § 241(6) (TPW)
Because plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim is granted, the First Department need not address the Labor Law § 241(6) claim.
Mata v 371 1st St., LLC
April 23, 2024
Appellate Division, First Department
Plaintiff was engaged in demolition of flooring when the subfloor collapsed, causing him to fall several stories and onto a scaffold. The trial court granted plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim and denied defendants’ motion for summary judgment dismissing plaintiff's Labor Law §§ 240(1), 241(6), and 200 and common-law negligence claims.
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s decision. Even if, as urged by defendants, the Court considered the subfloor to be a permanent structure, considering the condition of the building as depicted in the photographs taken soon after the accident, and given that plaintiff was engaged in pulling up nailed boards from the subfloor using a crowbar, the Court found the accident foreseeable. The Court also deemed defendants’ expert opinion, which was based on photographs taken at some unspecified time prior to the accident, when the building did not resemble the condition that it was in when the accident occurred, insufficient to raise a question of fact.
PRACTICE POINT: Labor Law § 240(1) is violated when plaintiff is exposed to an elevation-related risk while engaged in a covered activity and defendant fails to provide a safety device adequate to protect plaintiff against the elevation-related risk entailed in the injury-producing work or provided an inadequate one. Here, plaintiff, while working on the flooring, was confronted with an elevation-related hazard to which § 240(1) is applicable, regardless of whether the flooring was permanent.
Malecaj v West 70th Owners Corp.
April 23, 2024
Appellate Division, First Department
Plaintiff was injured when he fell from a plank while excavating a pool during the renovation of a townhouse in Manhattan. West 70th owned the property. West 70th hired New Order and Bronx Excavation Company Inc. (BCE). A jury trial was held and during the trial, the trial court directed a verdict in plaintiff's favor on the Labor Law §§ 240(1) and 241(6) claims. The jury found that West 70th directed and controlled plaintiff's work on the day of the accident. The jury also found that New Order was the general contractor. The jury then found West 70th, New Order, and BEC liable on the Labor Law § 200 and common-law negligence claims. The jury awarded plaintiff pre-apportionment damages of $4,741,015 and apportioned fault 10% against West 70th, 50% against New Order, 40% against BCE, and 0% against plaintiff. During jury deliberations, plaintiff and West 70th dictated into the record their agreement to a high-low settlement of $1.5 million high and $1 million low, which provided that "if the jury were to award a verdict against [West 70th] of anything from a defendants' verdict up to $1 million that [West 70th] would pay $1 million … Should the jury award anything over $1.5 million against [West 70th, it] would only pay $1,500,000 … Should the jury award anything between 1,000,000 and 1,500,000 that is the amount that [West 70th] would pay."
The trial court denied New Order’s motion pursuant to CPLR § 4404(a) to set aside the verdict and denied with leave to renew West 70th's motion for judgment as a matter of law on the third-party contractual indemnification claim against New Order and denied plaintiff's motion to vacate trial court's order dated July 14, 2022.
Labor Law § 200 and Common-Law Negligence (EDA)
The First Department affirmed the trial court holding that, in the absence of any language to the contrary, the apportionment of fault was factored into the high-low settlement. The parties' fault was a substantial component of West 70th's defense and an essential component of the jury verdict.
The Court reversed the trial court’s decision and granted that portion of the motion seeking to set aside the portion of the verdict finding New Order liable on the Labor Law § 200 and common-law negligence claims because, while there was conflicting testimony as to whether West 70th placed the plank for plaintiff to work on and instructed plaintiff to work on the plank, there was no evidence that New Order was involved or that it gave such instructions. Since plaintiff failed to show that New Order exercised direct supervision or control over the injury-producing work, the Labor Law § 200 and common-law negligence claims should have been dismissed.
The Court affirmed the trial court’s denial of a new trial, finding that the trial court's evidentiary ruling excluding certain emails was, at most, harmless error since the emails postdated the accident, were cumulative, and their subject matter was subject to cross-examination. The Court also found that the missing document charge was properly given, in that the missing professional services agreement was referenced in other documents by New Order, which was alleged to have stored the PSA at its office, and contradictory testimony about its existence was elicited.
The jury charge for the definition of a “general contractor” could not be reviewed by the First Department because the transcript of the charge conference was not included in the record.
 Indemnity Issues in Labor Law (PCSM)
The First Department declined to address New Order's argument that West 70th's motion for summary judgment on its contractual indemnification claim should have been denied without leave to renew since West 70th did not plead such a claim. The Court held that this argument, not previously asserted on the lower level, had not been preserved.
Sosnicki v New York City Sch. Constr. Auth.
April 3, 2024
Appellate Division, Second Department
In November 2015, plaintiff allegedly tripped and fell while climbing down from scaffolding on the roof of a public school in Brooklyn. In April 2016, he commenced a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim upon New York City School Construction Authority (the SCA). Plaintiff attached a proposed notice of claim to the petition, but he did not request in the petition that the notice of claim be deemed timely served nunc pro tunc. The trial court granted the petition for leave to serve a late notice of claim but did not deem the notice of claim to have been served upon the SCA. SCA thereafter moved for summary judgment dismissing the complaint and submitted an affidavit that the SCA was never served with a notice of claim on behalf of plaintiff. The trial court granted the SCA's motion and denied plaintiff's cross-motion to deem his notice of claim timely served nunc pro tunc.
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s decision because SCA’s evidence demonstrated that plaintiff never served the SCA with the late notice of claim that plaintiff had been granted leave to serve. The Court also affirmed denied of plaintiff’s cross-motion to deem his notice of claim timely served nunc pro tunc because it was made nearly four years after the claim accrued and more than three years after the trial court granted him leave to file a late notice of claim; therefore, the Court lacked the authority to grant his cross-motion.
PRACTICE POINT: The time to serve a notice of claim on a public corporation cannot be extended beyond the time limited for commencement of an action against that party, and the court lacks authority to grant a motion for leave to serve a late notice of claim made more than one year and ninety days after the cause of action accrued, unless the statute of limitations has been tolled.
Ragusa v Drazie's Farm II, LLC
April 10, 2024
Appellate Division, Second Department
Plaintiff, who was employed as a lighting technician, was injured when he fell from an A-frame ladder while he was removing decorations and light fixtures from a support column in a tent in 2016. In 2018, plaintiff commenced an action alleging a violation of Labor Law § 240(1) against defendant, the alleged owner of the subject property. Defendant moved for summary judgment dismissing the amended complaint, contending it did not own the subject property, that a separate entity, the proposed defendant, was the actual owner of the subject property, and that it was the owner of property adjoining the subject property. In March 2022, plaintiff opposed defendant's motion and cross-moved for leave to amend the amended complaint to add the proposed defendant as an additional defendant, contending that the relation-back doctrine applied. The trial court granted defendant's motion for summary judgment dismissing the of Labor Law § 240(1) claim and denied plaintiff's cross-motion for leave to amend the amended complaint.
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s decision as defendant and the proposed defendant were separate limited liability companies that owned adjoining properties and that, as adjoining property owners, they had different defenses. Thus, the interests of defendant and the proposed defendant did not stand and fall together such that a judgment against one would similarly affect the other. Accordingly, the trial court providently exercised its discretion in denying plaintiff’s cross-motion. The Court also affirmed dismissal of the Labor Law § 240(1) against defendant because it could not be liable under that claim to plaintiff since it did not own the subject property, nor could it be considered an “owner” for purposes of that statute.
PRACTICE POINT: The relation-back doctrine allows a party to be added to an action after the expiration of the statute of limitations, and the claim is deemed timely interposed, if (1) the claim arises out of the same conduct, transaction, or occurrence, (2) the additional party is united in interest with the original party, and (3) the additional party knew or should have known that but for a mistake by plaintiff as to the identity of the proper parties, the action would have been brought against the additional party as well. If the relationship between the parties is such that one may have a defense not available to the other, then they are not united in interest. Here, defendant established the third prong was missing and did not own the subject property at the time of plaintiff’s accident.
Caracciolo v SHS Ralph, LLC
April 17, 2024
Appellate Division, Second Department
Plaintiff was injured during a construction project that was taking place on premises owned by SHS Ralph. Wilcox was acting as the general contractor on the project. Plaintiff was performing work related to the installation of elevators on the premises. He allegedly fell one story to the ground after stepping off an elevator platform and onto the mezzanine level immediately outside the elevator shaft, where the floor had yet to be constructed. The trial court denied Wilcox’s motion for summary judgment dismissing the claims under Labor Law §§ 240(1), 200 and common-law negligence.
Labor Law § 240(1) (MAS)
The Second Department affirmed denial of Wilcox’s motion under Labor Law § 240(1) as its evidence failed to eliminate all triable issues of fact. Wilcox’s expert rendered an opinion that OSHA and the Elevator Industry Field Employees’ Safety Handbook call for the presence of guardrails at elevator hoistways after rough or finished floors are in place, which would protect workers from falling into an unguarded elevator shaft. Under the peculiar circumstances of this case, where there was no floor adjacent to the elevator when plaintiff alighted from the elevator shaft and his testimony that he had never worked at a site where elevators were installed before the adjoining floors, the Court held that triable issues of fact existed regarding, among other things, whether the absence of an adequate safety device was a proximate cause of the accident and whether plaintiff’s actions constituted the sole proximate cause of his injuries.
PRACTICE POINT: A plaintiff is the sole proximate cause of his or her own injuries and a defendant has no liability under Labor Law § 240(1) when the injured worker: (1) had adequate safety devices; (2) knew both that the safety devices were available and that he or she was expected to use them, (3) chose for no good reason not to do so or misused the safety device, and (4) would not have been injured had he or she not made that choice. Where, as here, there are issues of fact as to one or more of the elements above, the sole proximate cause defense is not available on summary judgment.
Labor Law § 200 and Common-Law Negligence (EDA)
The Second Department affirmed the trial court’s decision that Wilcox failed to establish its entitlement to summary judgement because its evidence in support of its motion did not eliminate all triable issues of fact regarding, among other things, whether Wilcox had actual or constructive notice of a dangerous premises condition.
Caracciolo v SHS Ralph, LLC
April 17, 2024
Appellate Division, Second Department
Plaintiff was injured during a construction project that was taking place on premises owned by SHS Ralph. Wilcox was acting as the general contractor on the project. Plaintiff’s employer, Thyssenkrupp, was performing work related to the installation of elevators on the premises. Plaintiff fell one story to the ground after stepping off an elevator platform and onto the mezzanine level immediately outside the elevator shaft, where the floor had yet to be constructed. The trial court denied Thyssenkrupp’s motion for summary judgment dismissing the Labor Law § 240(1) claim and the third-party complaint and denied SHS Raply’s cross-motion for summary judgment dismissing the Labor Law § 240(1) claim against it and on the third-party cause of action for contractual indemnification.
Labor Law § 240(1) (MAS)
SHS Ralph’s expert’s opinion was that Industrial Code regulations and the Elevator Industry Field Employees’ Safety Handbook did not require a guardrail or barriers where, as here, a permanent door had been installed for the elevator. He asserted that barriers or guards are used to prevent workers and objects from falling into an unguarded elevator shaft. However, the Second Department affirmed the trial court’s decision as triable issues of fact whether the absence of an adequate safety device was a proximate cause of the accident and whether plaintiff’s actions constituted the sole proximate cause of his injuries.
PRACTICE POINT: Labor Law § 240(1) is a self-executing statute that contains its own specific safety measures, the violation of which provides an independent legal basis for liability, regardless of whether there was compliance with federal regulations or general industry standards (like OSHA). These two cases are great reminders that when retaining an expert, it is critical to ensure he or she addresses all the allegations regarding plaintiff’s § 240(1) claim or risk the court finding it deficient, like in this case.
Indemnity Issues in Labor Law (PCSM)
On appeal, SHS Ralph argued that since the Supreme Court dismissed, as abandoned, plaintiff's Labor Law § 200 and common law negligence claims against SHS Ralph that it was entitled to contractual indemnification since its potential liability under Labor Law § 240(1) would only be vicarious as the owner of the premises. The Second Department rejected this argument.
The Second Department reasoned that a promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances. The subcontract between SHS Ralph and Thyssenkrupp included a rider that stated that Thyssenkrupp must indemnify SHS Ralph "to the fullest extent permitted by law" against all liability "or claimed liability for bodily injury or death to any person(s) . . . arising out of or resulting from the Work covered by this Contract Agreement to the extent such Work was performed by or contracted through" Thyssenkrupp, "excluding only liability created by the sole and exclusive negligence of the Indemnified Parties."
In reviewing the subcontract, the Second Department reasoned that SHS Ralph was required to affirmatively demonstrate that it was free from negligence for the Court to grant summary judgment on its claim for contractual indemnification, and that the lower court’s dismissal of the plaintiff’s Labor Law § 200 and common law negligence claims as abandoned did not constitute the required affirmative demonstration.
Giraldo v Highmark Ind., LLC
April 17, 2024
Appellate Division, Second Department
Highmark constructed a school and retained Canyon as general contractor. Plaintiff, who was employed as a rigger and crane signaler by nonparty JC Duggan, was injured when he was struck by a prefabricated modular unit as it was being hoisted by a crane owned by Sublink. The trial court denied plaintiffs’ motion for summary judgment on Labor Law §§ 240(1), 241(6), and 200 claims.
Labor Law § 240(1) (MAS)
The Second Department affirmed denial of plaintiff’s motion under Labor Law § 240(1) because his deposition testimony was that after the modular unit was lifted off the trailer by the crane, it moved “upwards and towards” him before striking him. Therefore, such testimony failed to establish that the accident was the result of an elevation-related hazard contemplated under the statute.
PRACTICE POINT: The hazards contemplated under Labor Law 240(1) are those related to the effects of gravity where the protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured. Here, plaintiff’s testimony demonstrated his accident was not the result of an elevation-related hazard against which the statute was designed to protect against.
Labor Law § 241(6) (TPW)
The Second Department affirmed the trial court’s decision to deny plaintiffs' motion for summary judgment on the issue of liability under Labor Law § 241(6) and, upon searching the record, award summary judgment to the defendants dismissing the § 241(6) claim based on an alleged violation of Industrial Code § 23-8.1(f)(1)(iv).
First, the Court held that plaintiffs failed to establish a violation of § 23-8.1(f)(2)(i), as they did not demonstrate that there was a sudden acceleration of the hoisted load. Plaintiffs also failed to establish that the alleged sudden acceleration of the hoisted load was a proximate cause of plaintiff's injuries. Additionally, as plaintiff testified that he inspected the modular unit prior to it being hoisted and ensured that it was well secured and balanced, the Court held that plaintiffs failed to demonstrate a violation of § 23-8.1(f)(1)(iv).
Further, as the evidence established the load was inspected by plaintiff and that he ensured that it was well secured and balanced, the Second Department exercised its authority to search the record and award summary judgment to defendants dismissing the Labor Law § 241(6) claim based on § 23-8.1(f)(1)(iv).
Labor Law § 200 and Common-Law Negligence (EDA)
The Second Department affirmed the trial court’s decision. The Court reaffirmed that cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed. Here, plaintiff’s theory of liability was that Canyon was liable because it failed to furnish plaintiff with a safe place to work and further argued that Sublink was liable because it hired the crane and crane operator and was instrumental in determining how the crane was placed and operated. However, the Court affirmed the decision finding triable issues of fact existed as it was uncertain which allegedly dangerous condition or combination of dangerous conditions proximately caused plaintiff's accident. Thus, the Court held the trial court properly denied plaintiffs' motion for summary judgment under Labor Law § 200.
Chuqui v Cong. Ahavas Tzookah V'Chesed, Inc.
April 24, 2024
Appellate Division, Second Department
Plaintiff, an employee of third-party defendant, was working as a carpenter on a remodeling project at premise owned by Cong. Ahavas Tzookah V'Chesed, Inc. (the Congregation). Plaintiff was injured while operating a nail gun to attach wood plates to a building roof, when debris from a metal wire to which nails were secured, such that they could be loaded into the nail gun, flew off and hit his right eye. The trial court granted plaintiff's motion for summary judgment on the Labor Law § 241(6) claim against the Congregation. Fast Build’s appeal deemed dismissed pursuant to 22 NYCRR 1250.10(a) because it was not perfected within six months of the notice of appeal.
Labor Law § 241(6) (TPW)
The Second Department reversed the trial court’s decision, which granted plaintiff's motion for summary judgment on the issue of liability under Labor Law § 241(6). The Court held that plaintiff's submissions failed to eliminate a triable issue of fact as to whether, at the time of his accident, he was engaged in work that “may endanger the eyes” so as to require the use of eye protection pursuant to Industrial Code § 23-1.8(a). The Court further held that his failure to make a showing of entitlement to judgment as a matter of law required the denial of that branch of his motion insofar as asserted against third-party defendant, regardless of the sufficiency of the opposing papers.
New York Industrial Code Regulations (EDA)
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Note from David R. Adams:
