Labor Law Pointers
Volume VI, No. 6
Monday, April 5, 2017
A Monthly Electronic Newsletter Addressing
New York State Labor Law
Decisions and Trends
From the Editor:
Do you have a situation, we love situations.
A case from the First Department which cite to the Wilinski case from the Court of Appeals brings up feature I am not sure I have informed our readers about for a while so I am taking this opportunity to remind you all about the features of our newsletter and web site. Every edition of Labor Law Pointers is available on the web site and is searchable in word format. The link is available in every edition and I am including it here for your convenience.
http://www.hurwitzfine.com/news/category/labor-law-pointers
Read carefully the analysis of the McKay case from the Fourth Department below particularly as to the 200 claims and the indemnity issues flowing from that claim. We are all aware that there are separate avenues which lead to 200 liability. There are means and method cases, where the plaintiff’s injury stems from the means and methods of the work being done creating liability for any party supervising, directing or controlling the injury producing work, and there are defect property cases, where a dangerous condition at the work site causes the injury and thus notice or creation of the defect is the liability trigger. The fourth seems to apply this differently to different parties in a decision this month. We will need to see where this one goes.
In addition every case we analyze has a hyperlink to the official decision. All you need do is click on the name of the case and you will be taken directly to the decision.
We are also only a click away. Everyplace you see our initials or name it is a hyperlink directly to our email. We encourage you to contact us with any question labor law or risk transfer related, we do so love making your situation ours. In addition feel free to call me on my cell any time. Here is my contact information as a V-Card, feel free to call my cell any time.
This time of year many carriers are gearing up for meetings where they get their entire department together. This is a perfect time for some training and we are available to provide it on the subject of your choosing.
I would be remiss if I did not point out the fact that our sister publication Coverage Pointers is full of helpful tips and case analysis of all things coverage related and beyond. If you are interested in getting on the distribution list just drop a line to Dan Kohane at [email protected] and he will gladly add you to the distribution list.
Happy almost summer to all our readers, actually had to put on my sunglasses today on my way home from a deposition in Rochester, the season may be changing. Until next month.
David
David R. Adams
Hurwitz & Fine, P.C.
424 Main Street
Suite 1300 Liberty Building
Buffalo, New York 14202
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Labor Law Pointers is published the first Wednesday of each month. If you know of others who may wish to subscribe to this free publication, please feel free to forward it. If you wish to subscribe or unsubscribe, please send an e-mail to [email protected] or call the Editor/Labor Law Team Leader David R. Adams directly at (716) 849-8916.
O'Brien v Port Auth. of N.Y. & N.J.
March 30, 2017
Court of Appeals
Plaintiff was working at the One World Trade Center site on ground level during periodic rain when he allegedly slipped off the tread of the top step of a temporary exterior metal staircase, or temporary scaffold, and fell down the stairs. He testified the metal staircase was wet due to exposure to the elements and the stairs were “steep, slippery and smooth on the edges.”
In support of his motion for summary judgment on his Labor Law §§ 240(1) and 241(6) claims, plaintiff submitted an expert affidavit opining the stairs were “not in compliance with good and accepted standards of construction site safety and practice” or with OSHA. His expert also opined the stairs were “smaller, narrower and steeper than typical stairs,” making it more difficult to maintain proper footing.
In opposition and in support of defendant’s cross-motion, their expert opined the staircase was designed for both indoor and outdoor use and was “designed and manufactured so as to provide traction acceptable within industry standards and practice in times of inclement weather.” He observed the staircase provided both perforated holes to allow rain to pass through and raised metal nubs for traction, and opined that these anti-slip measures were sufficient. He also disputed the staircase was smaller, narrower or steeper than usual.
The trial court denied all parties summary judgment on the Labor Law § 240(1) claim, finding issues of fact as to whether the temporary staircase provided proper protection. The trial court, however, granted plaintiff summary judgment on his Labor Law § 241(6) claim based on its determination that there had been a violation of Industrial Code 12 NYCRR § 23-1.7 (d).
The First Department modified the order by granting plaintiff's motion on his Labor Law § 240(1) claim and denying him summary judgment on the Labor Law § 241(6) claim. The First Department found the expert opinions conflicting as to the adequacy and safety of the staircase but nonetheless held it was undisputed the staircase, a safety device, malfunctioned or was inadequate to protect plaintiff against the risk of falling. One Justice dissented in part and would have affirmed the denial of summary judgment on the Labor Law § 240(1) claim because the conflicting expert affidavits gave rise to questions of fact on that claim as well.
The Court of Appeals only decided the Labor Law § 240(1) claim, holding the First Department improperly relied on the fact that just because Plaintiff fell, there must have been a failure or inadequacy of the stairs. The Court reiterated its clear holding from past decisions that “the fact that a worker falls at a construction site, in itself, does not establish a violation of Labor Law § 240 (1)” and distinguished this case from those where a ladder collapses for no apparent reason.
The Court found an issue of fact based on the expert opinions and distinguished the dissent’s reliance on cases where it was undisputed there was no safety device provided. While both expert affidavits were phrased in the context of compliance with industry standards, the Court held compliance is not enough to establish adequacy, but their ultimate opinion on adequacy did raise an issue of fact.
Justice Rivera’s lengthy dissent focused on the majority’s relying too much on the industry standard as the bases of the expert opinions and argues that reference to industry custom and practice contradicts the legislative intent of the statute by enabling owners, contractors and their agents to diminish their obligations and set their own standard of care for workers’ protections.
PRACTICE POINT: This is a case destined to me misapplied by many attorneys in their papers. The Court did not say that an expert opinion which was based in part on an industry standard is not adequate, but I guarantee that will be the claim of numerous plaintiff’s attorneys in the next year. The point this really makes is that while an expert is a necessary portion of a sole proximate cause defense in my cases, it is important to read the report carefully to ensure the basis of the report is valid and will thus be accepted by the court as an expert opinion.
The Court of Appeals noted in footnote 1 that plaintiff did not cross-appeal from the First Department’s order, rendering his Labor Law § 241(6) argument beyond their review.
March 2, 2017
Appellate Division, First Department
Plaintiff, a carpentry working at a building owned by defendant, allegedly was injured when he slipped on wet discarded concrete deposited on a piece of plywood on which he was walking, at the end of a passageway, causing his left foot to become entangled with two bundles of rebar protruding from under the plywood. On the afternoon of the accident, plaintiff’s job was to work on the building's fourth floor to erect the next batch of tables and forms to construct the fifth floor. In constructing the tables and forms, plaintiff did not and would not use rebar or concrete.
The trial court granted defendants’ motion for summary judgment dismissing the Labor Law § 241(6) claim predicated on Industrial Code (12 NYCRR) § 23-1.7(d) but denied dismissal of that claim as to 1.7(e) and 2.1(a)(1), and denied Plaintiff’s cross-motion on that claim. The trial court also denied defendants’ motion as to the Labor Law § 200 and common-law negligence claims.
With respect to regulation 1.7(d), the First Department held that defendants’ were not entitled to summary judgment under 1.7(d) because plaintiff established the excess wet concrete discarded on the plywood on which he slipped was not integral to his work since he did not work with concrete and concrete was not part of his responsibilities in constructing the tables and forms used to hold the rebar and other ironwork in place.
The Court held regulation 1.7(e)(1) applied to plaintiff’s incident regardless of whether he slipped or tripped and fell but that plaintiff’s and the work superintendent’s conflicting testimony presented issues of fact whether the accident occurred in a “passageway.” As to regulation 1.7(e)(2), the Court held defendants’ motion was correctly denied as plaintiff submitted proof that he did not work with rebar nor was rebar integral to his work being performed that day.
Although plaintiff also contended 2.1(a)(1) was violated because the plywood and rebar were not safely stored, and obstructed a passageway, the Court held the conflicting testimony also raised an issue of fact whether the concrete placed on the piece of plywood was safely stored.
Labor Law § 200 and Common-Law Negligence (VCP)
The First Department affirmed denial of defendants’ motion as to the Labor Law § 200 and common-law negligence claims, finding defendants failed to establish they lacked constructive notice of the dangerous condition that caused plaintiff's injury, since they submitted no evidence of the cleaning schedule for the work site or when the site had last been inspected before the accident.
March 7, 2017
Appellate Division, First Department
Claimant’s incident apparently involved tag lines, or more accurately, the absence of tag lines, for his use in moving a steel I-beam across the Alexander Hamilton Bridge. The Court of Claims denied respondent State’s motion for summary judgment seeking dismissal of the Labor Law § 241(6) claim predicated upon Industrial Code regulations 2.3(c), 8.2(c)(3) and 8.1(f)(2)(i).
The First Department affirmed as the Court of Claims correctly found an issue of fact whether the State provided tag lines for claimant’s use, and whether the absence of tag lines was a proximate cause of claimant’s injury.
March 15, 2017
Appellate Division, First Department
Plaintiff testified he allegedly was injured when the A-frame ladder he was working on moved underneath him as he applied pressure to it while trying to remove part of the drop ceiling he was demolishing. The trial court denied plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim and denied defendants’ cross-motion to dismiss that claim. The court also denied defendants summary judgment on their Labor Law § 241(6) based on regulation 1.21(b)(4)(iv).
The First Department reversed and awarded summary judgment to plaintiff, who was not required to show the ladder was defective or that he actually fell off it to satisfy his prima facie burden. The Court rejected defendants’ sole proximate cause defense because there is no testimony in the record as to whether there were other readily available, adequate safety devices at the accident site that plaintiff declined to use.
Further, the evidence established that the ladder twisted because it was unsecured, not because plaintiff misused it and defendants provided no other safety device for use. The fact that plaintiff’s application of pressure to the ladder while engaged in the work he was directed to do, which caused it to twist, was comparative negligence.
PRACTICE POINT: If a ladder moves because it is misplaced or not secured it is a prima facie case of 240(1) and, as then the statute is violated, nothing else can be the sole proximate cause of the injury producing fall. Simply put, ladder moves, plaintiff falls, Summary Judgment awarded. This is starting to change, but not quickly enough for those of us who need to explain this Draconian law to our clients on a regular basis.
In light of the First Department’s decision with respect to the Labor Law § 240(1) claim, the 241(6) is academic.
March 15, 2017
Appellate Division, First Department
Plaintiff allegedly was injured when he and a coworker attempted to move a wooden skid from a vertical position onto an A-frame dolly by tilting it at a 45-degree angle on one corner and toppling it onto the dolly. While plaintiff hoisted his side of the skid overhead with his arms, his coworker apparently lost his grip, and the skid fell on plaintiff. The trial court denied defendants’ motion for summary judgment dismissing the Labor Law § 240(1) claim, and granted plaintiff’s cross-motion for partial summary judgment on that claim.
The First Department unanimously reversed the trial court’s denial of plaintiff’s motion, holding that even though the skid was on the same level as plaintiff, this does not bar a claim under Labor Law § 240(1). In denying plaintiff summary judgment, the Court found a triable issue of fact as to the weight of the skid, and thus whether a safety device was required under the statute.
PRACTICE POINT: This is Wilinski all over again. I love to discuss Wilinski if only because it was the very first case I ever analyzed in the first edition of Labor Law Pointers in November of 2011. How luck was I to have a Court of Appeals case to start with. 66 editions later that case is still the central argument for many of the cases we discuss. Rather than reiterate what I said five and a half years ago I have pasted the write up below. The instant case differs in that here a question of fact was established as the court left it to the jury to determine if the weight of the skid required that a safety devise was necessary for the task at hand.
10/25/11 Wilinski v. 334 East 92nd Housing Development Fund Corp.
Court of Appeals
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_07477.htm
The first case for discussion is Wilinski v. 334 East 92nd Housing Development Fund Corp., 2011 NY Slip Op 7477, from October 25, 2011.
This case marks a departure from the cases previously decided as the Court allows the plaintiff to maintain an action under Labor Law Section 240(1) where the falling object which struck the plaintiff was located at the same level as the plaintiff when it fell. Both the plaintiff and the object, in this case a ten foot piece of pipe, remained at that same level following the accident as well. The lower Court (Appellate Division First Department) reversed the trial Court and granted defendant’s motion dismissing the 240(1) cause of action as the falling object and the plaintiff were at the same level.
The Court of Appeals modified that ruling and found that neither party had demonstrated whether, in the ongoing demolition, protective devices could have been used to secure the pipes (as claimed but not supported by the plaintiff) or that no protective devices were warranted (as claimed but not supported by the defendant).
The ramifications of this decision are several. First, where there is a falling object which causes injury to the plaintiff, exactly how far does it need to fall before 240(1) applies? Recall that in this case the base of the pipe that fell was at the same level as the plaintiff’s feet. The Court is now directing that the deciding factor regarding falling objects in a 240(1) case is not the level the object rests upon, but the height differential between the top of the object and the plaintiff. Here, the Court held that a ten-foot pipe which falls on a 5’6” plaintiff is potentially a violation.
To take this a bit further, if the object which is at the same level as the plaintiff falls and scares the plaintiff, who then wrenches his back, is that a 240(1) case? This concept is not as far-fetched as it may seem on the surface. In another case reported last month, the First Department, in Reavely v. Yonkers Raceway Programs, Inc., 2011 NY Slip Op 7366, the Court granted summary judgment on 240(1) to a plaintiff who slipped on waterproofing applied to a foundation. As plaintiff was afraid that he would fall into a ten-foot deep unprotected trench, he cut his hand on a saw he was holding. The Court found that, while plaintiff did not fall, he cut his hand while preventing himself from falling and it was the presence of the uncovered trench, a violation of 240(1), which the Court found to be a proximate cause of the injury. Thus, if a falling pipe can be a violation of 240(1), does it then flow that a plaintiff who wrenches his back while avoiding a falling pipe is entitled to the absolute liability flowing from 240(1)?
Does it matter if the plaintiff is standing or kneeling? To quote Steve Peiper’s comments in our Coverage Pointers newsletter:
“It seems to this reviewer that when a determination of liability under the statute is determined by a tape measure, we have gone (to use Judge Pigott’s words) far afield of the intentions of the statute. Under the Court’s analysis, if the pipe were 5 feet, and plaintiff was 6’5” there would be no Labor Law violation? What if the pipe was 3 feet, and plaintiff was kneeling at the time he was struck? What if the pipe struck plaintiff on the foot instead of the head?”
The Court in Wilinski seems to want to keep it on the specific facts of the case but it will take time for the full effect of this case to be felt.
This case should have no effect on the falling worker line of cases as the law already does not require the plaintiff to actually fall from the area he is working in, it is only necessary that the lack of a safety devise be a proximate cause of his injury.
David
March 15, 2017
Appellate Division, First Department
Plaintiff allegedly fell through an unprotected stairwell opening in the floor, in the course of installing display shelving during a store renovation project. The owner and lessee of the premises (the LMJ defendants) were found liable for plaintiff's injuries under Labor Law § 240(1), and sought indemnification from one of two contractors hired for the project. The other contractor, plaintiff's employer, Gilbert, was retained to install display shelving and lighting.
The trial court granted the LMJ defendants’ motion for summary judgment on their common-law indemnification claims against Inter-Next NYC, and denied Inter-Next NYC’s cross-motion for summary judgment dismissing the third-party complaint against Plaintiff’s employer.
Indemnity Issues in Labor Law (SEP)
The Appellate Division appears to agree that LMJ and West 17th established themselves free of negligence. However, the Court refused to grant the application because a question of fact existed as to whether Inter-Next NYC created the condition which resulted in plaintiff’s injuries.
The decision is notable more for the application of the dead man’s statute, than its indemnity implications. Here, the statute precluded LMJ from introducing an allegation of LMJ’s principal that Inter-Next’s now deceased principal agreed to remove the door to the stairwell through which plaintiff fell.
March 15, 2017
Appellate Division, First Department
Plaintiff, an elevator mechanic, was injured when an elevator that he had been dispatched to repair suddenly dropped, with him inside, in the course of his repair allegedly because a defective shim (a piece bolted between the guide shoes and elevator cab) had caused the guide shoe to crack and due to the failure of a low-pressure switch. In this hybrid products liability/labor law action, the trial court granted defendants motion for summary judgment dismissing the Labor Law § 240(1) claim.
With respect to the Labor Law § 240(1) claim, the First Department held the elevator was not a safety device within the meaning of Labor Law § 240(1), citing Kleinberg v City of New York, 61 AD3d 436 (1st Dept 2009). The Court rejected plaintiff’s reliance on McCrea v Arnlie Realty Co., LLC, 140 AD3d 427 (1st Dept 2016) where the elevator on which plaintiff was engaged in repair work fell onto plaintiff because it had not been secured.
In this case, plaintiff was inside the elevator, riding up and down to test it. Therefore, to the extent plaintiff may have been engaged in “repair” work, the Court held the statute still did not apply because any securing device would have defeated the purpose of his work by preventing him from riding the elevator to test it.
PRACTICE POINT: This is my lucky day. This case also turns on a Court of Appeals case from 2011. Ironically, the Saazar case is the lead case of our second edition of Labor Law Pointers, coming just a few weeks after the Wilinski case discussed above. We really started this newsletter at the right time. Both cases have the same issue, that you can’t protect someone from something integral to the task they are performing. In Wilinski it was not being able to barricade off a trench you are trying to fill, and in the instant case you can’t secure an elevator you are trying to make go up and down. Seems logical too me. In yet another twist of fate, Judge Pigott, the author of the dissent in Wilinski and the opinion in Salazar, having stepped down from the Court of Appeals is back in Buffalo mediating cases, including Labor Law cases. It is truly a small world. I have once again included the original analysis of the Salazar case here.
11/21/2011 Salazar v Novalex Contracting Corp.
Court of Appeals
http://www.nycourts.gov/reporter/3dseries/2011/2011_08446.htm
In this 4-3 decision from the Court of Appeals, the plaintiff was injured in the basement of a building which was being renovated. Novalex was the general contractor of the project. The plaintiff was working in the basement where the concrete for the floor was being fed through a window and into wheelbarrows to be spread or “raked” over the entire floor of the building. The basement floor had a trench system for piping, all of which was to be filled with concrete creating a level and smooth floor with the pipes under the concrete. The wet concrete, when poured into the basement, would fill the trenches. As the plaintiff was “raking” the wet concrete to level the floor, he was looking ahead at what he was “raking” and stepped backwards into a trench partially filled with wet concrete. His foot hit the bottom of the trench and as he attempted to pull his leg out he injured himself.
The trench the plaintiff stepped into was about two-feet wide and three- to four-feet deep. The trench had no railings, barricades or cover around or over it. Plaintiff sued, claiming a violation of Labor Law §§ 240(1) and 241(6).
The trial court granted Summary Judgment to the defendants, dismissing the plaintiff’s complaint in its entirety, and the First Department reversed, denying the defendants’ motions for Summary Judgment on Sections 240(1) and 241(6) and reinstating those claims with one dissent. The Appellate Division granted leave to the defendant, certifying the issue to the Court of Appeals.
The Court finds that, as liability under Section 240(1) depends on whether the plaintiff’s task creates an elevation-related risk of the type that the enumerated safety devices protect against, in order for Section 240(1) to be triggered, the plaintiff would had to have been able to be protected from injury flowing from the application of gravity to an object or person by the use of an adequate scaffold, hoist, stay, ladder, or other protective device.
What the Court in Salazar decides is that, in this case, the installation of a protective device would be “contrary to the objectives of the work plan”. The Court holds, in plain and direct language, that, “Put simply, it would be illogical to require an owner or general contractor to place a protective cover over, or otherwise barricade, a three- or four-foot deep hole when the very goal of the work is to fill that hole with concrete.”
The Court continues to address facts of this case and holds that the Labor Law “should be constructed with a common sense approach to the realities of the workplace at issue.” This would appear to signal an acceptance by the Court of the fact that certain functions or tasks simply cannot be accomplished with any type of protective device in place. It will remain to be seen what other types of tasks are considered by the Court to, by their very nature, preclude the use of a safety device.
The Court also dismissed the Section 241(6) claims applying the same rationale, that “covering the opening in question would have been inconsistent with filling it, an integral part of the job.”
It is important to note that this was a 4-3 decision, and in fact the second such 4-3 decision in a Labor Law case within 30 days, coming on the heels of the Wilinski decision discussed in our last issue. Note that the Salazar decision was authored by Judge Pigott, the author of the dissent in Wilinski. In fact, the Salazar majority refers to the Wilinski decision as the basis for the “contrary to the work plan” argument. In Wilinski the majority found that securing the pipes would not have been contrary to the work plan and, thus, the failure to do so was a violation of the Labor Law. The majority in Salazar utilized that same language to hold that if the use of the safety device is contrary to the work plan, it is not a violation of the Labor Law not to use such a device.
The swing vote, it appears, in both the Wilinski and Salazar decisions is Judge Smith, as he voted with the majority in both cases. Obviously, we have not seen the last of these issues, and look forward to reviewing and analyzing ongoing decisions as they are applied in the departments.
PRACTICE TIP: For now, the point to be taken from this case is that the retention of an expert to explore the propriety of utilizing protective devices to perform certain tasks may provide the defendant, and the plaintiff for that matter, with the necessary ammunition to swing a motion addressing these issues in their favor.
March 21, 2017
Appellate Division, First Department
Plaintiff allegedly was injured when the bottom of the ladder from which he was descending suddenly slipped out from under him, causing him to fall. Plaintiff was unable to recall the facts of the incident. The trial court granted plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim, and denied defendants’ cross-motion to dismiss that claim.
The First Department reiterated the rule that “plaintiff's inability to testify exactly as to how an accident occurred does not require dismissal where negligence and causation can be established with circumstantial evidence.” Here, the workers’ comp. report defendants’ challenged on appeal was properly authenticated as a business record by the person who prepared the report because it was prepared in the regular course of business contemporaneously with the accident and was based on the personal knowledge of someone who witnessed the accident. The Court further held a statement made by defendant's owner in a report to OSHA, detailing how the accident occurred, was admissible as a vicarious admission of an employee.
PRACTICE POINT: This is a logical decision. I agree that where, as here, there is other evidence, in admissible form, that the plaintiff was injured due to a violation of the labor law, and he was not the sole proximate cause of the injury producing event, that Summary Judgment is warranted. Where I have issue with this type of case is where the plaintiff has no memory of an un-witnessed accident, and thus could never establish that the accident was as a result of a violation of the labor law, and yet the case is not dismissed on motion.
Solano v Skanska USA Civ. Northeast Inc.
March 28, 2017
Appellate Division, First Department
Plaintiff was injured when, while working on the roof of a water treatment plant, he tripped and fell on two metal pipes protruding from the surface of the roof as he was stepping back to close the lid of a gang box. The trial court denied Durr’s motion for summary judgment dismissing the Labor Law §§ 241(6), 200 and common-law negligence claims.
The First Department reversed as to the Labor Law § 241(6) claim predicated on a violation of Industrial Code regulation 1.7(e)(1) because that regulation did not apply to the facts of this case since a photographs plaintiff submitted depicting the area where he fell established his incident occurred in an open area rather than a defined “passageway” as required under 1.7(e)(1).
Labor Law § 200 and Common-Law Negligence (VCP)
Because discovery has not been completed, and depositions have yet to be taken, Durr's motion, to the extent it sought dismissal of the common-law negligence and Labor Law § 200 claims, was properly denied as premature. Durr may be held liable as a statutory agent if it had been delegated authority to supervise and control the work that brought about plaintiff's injury. The Court also held plaintiff demonstrated further discovery may lead to evidence showing that Durr had supervisory authority over work involving the pipes and the area where plaintiff fell.
March 15, 2017
Appellate Division, Second Department
Plaintiff allegedly was injured while working on property owned by the defendants, standing on a ladder and using a power saw to cut a tree branch. According to plaintiff's deposition, the ladder moved and he lost control of the saw, which cut his arm. The trial court granted defendants’ motion for summary judgment dismissing the complaint, and denied plaintiff’s cross-motion for summary judgment on liability for his § 240(1) and § 241(6) claims.
The Second Department held defendants established, prima facie, that plaintiff's tree branch cutting work was outside the ambit of Labor Law § 240(1) because a tree is not a “building or structure” within the meaning of the statute. The Court rejected plaintiff’s argument that the tree branch cutting work was necessary to complete a larger building renovation project because such assertion was unsupported by the record, and thus failed to raise a triable issue of fact.
PRACTICE POINT: A structure is an object made up of component parts. A tree is not. Thus a tree is not a structure and the plaintiff was thus not working on a “building or structure”. It cannot therefore be a labor law case.
The Second Department affirmed dismissal of this claim since defendants established prima facie that plaintiff’s injuries did not arise from construction, excavation or demolition work.
Labor Law § 200 and Common-Law Negligence (VCP)
The Second Department also affirmed dismissal of the Labor Law § 200 cause of action. Here, the accident arose from the manner in which the work was performed, and defendants established their prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 200 claim by submitting evidence demonstrating they did not have the authority to supervise or control the methods or materials of the plaintiff's work. In opposition, plaintiff failed to raise a triable issue of fact.
March 22, 2017
Appellate Division, Second Department
Plaintiff, an employee third-party defendant East Coast, allegedly was injured at a dirt lot owned by defendants Royal and leased to Vista, the general contractor. East Coast employees had access to the lot to store materials and workers met there to load materials onto trucks before heading to the construction site a few blocks away. Plaintiff allegedly was carrying a bucket filled with lead and concrete to a truck for use at the bridge when he stepped in an 8- to 12-inch deep hole in the dirt surface of the lot.
The trial court denied Royal’s and Vista’s motion to dismiss Plaintiff’s Labor Law §§ 241(6), 200 and common-law negligence claims arguing the dirt lot was not a construction site under the statute, they did not violate any Industrial Code regulations and they lacked notice of the hole plaintiff stepped into.
The Second Department reversed; finding both Royal and Vista established prima facie that at the time of his incident, plaintiff was not working in a construction area within the meaning of the statute. The Court noted the location of his incident occurred as he was taking materials to a truck so they could be transported to the construction site.
Labor Law § 200 and Common-Law Negligence (VCP)
The Second Department affirmed denial of Royal’s and Vista’s motion to dismiss the Labor Law § 200 and common-law negligence claims. This accident arose not from the manner in which the work was performed, but rather from an allegedly dangerous condition at the work site. The Court held Royal and Vista each failed to establish, prima facie, their entitlement to judgment as a matter of law as they failed to offer sufficient proof as to the last time they inspected the lot or otherwise demonstrate the hole could not have been discovered upon a reasonable inspection.
Derosas v Rosmarins Land Holdings, LLC
March 22, 2017
Appellate Division, Second Department
Plaintiff, a maintenance worker at defendant Rosmarin’s camp, was allegedly injured while cutting and clearing a downed tree. The tree had fallen across a mound of old tennis court clay and construction debris discarded in the camp's parking lot. Plaintiff was standing on the mound and cutting the trunk of the tree when another part of the tree broke and hit his head at the direction of Rosmarin. The trial court granted defendants’ motion to dismiss the Labor Law §§ 240(1), 241(6), 200 and common-law claims.
The Second Department held that dismissal was warranted as to Rasmarin based on the exclusivity of the Workers’ Comp. Law § 11 since he provided the Board’s decision as well as depositions of plaintiff and Rosmarin demonstrating that the Board awarded plaintiff workers’ comp. benefits for injuries he sustained in the subject incident through his employment with the camp and plaintiff, in fact, received said benefits.
As to the camp (the LLC), the Court agreed with the trial court that tree cutting and removal are not activities covered by Labor Law §§ 240(1) and 241(6), and the mound of old tennis court clay, sand, rocks, and other debris was not a “structure.” The LLC established prima facie that tree cutting and removal was routine maintenance outside of construction or renovation.
PRACTICE POINT: As mentioned above in the Olarte case, a tree is not a structure and thus this cannot be a Labor Law case. It is rare to have a tree case make it to the appellate level, and rarer yet to have two in the same month from different departments. In addition, where the plaintiff is the employee of a defendant, and comp was either paid or available, that is the exclusive remedy absent a “Grave Injury”.
Labor Law § 200 and Common-Law Negligence (VCP)
The Second Department affirmed, holding the trial court properly granted summary judgment dismissing the Labor Law § 200 and common-law negligence claims against the LLC. To the extent plaintiff's claims are based on the manner in which the work was performed, the respondents established, prima facie, that the LLC did not have authority to supervise or control the means and method of the work. Likewise, to the extent plaintiff's claims were based on a dangerous condition on the premises, by presenting the lease between the LLC and the camp, the Court also held respondents also established, prima facie, that the LLC, as an out-of-possession landlord, was not responsible for the plaintiff's injuries.
The LLC relinquished control of the subject property to the camp and placed all responsibility for landscaping and maintenance work on the camp. Although the LLC reserved a right of entry under the lease, here the Court held this did not provide a sufficient basis on which to impose liability upon the LLC for injuries caused by a dangerous condition, as the condition did not violate a specific statute, nor was it a significant structural or design defect.
March 22, 2017
Appellate Division, Second Department
Plaintiff allegedly was injured at the Brooklyn Navy Yard while performing overhaul work in a shipyard work shop on a valve that had been removed from a steel-hulled ship. The trial court denied plaintiff’s petition for leave to serve a late notice of claim on the City of New York. Plaintiff appealed, but before the appeal was heard, he commenced this Labor Law §§ 240(1), 241(6), 200 and common-law negligence action against the City.
The trial court granted the City’s motion to dismiss for failure to satisfy the condition precedent of serving a timely notice of claim as required by General Municipal Law §§ 50-e and i. The trial court denied plaintiff cross-motion for leave to amend the complaint, and also the petition for leave to serve a late notice of claim.
The Second Department rejected plaintiff’s argument that the LHWCA preempted the General Municipal Law, and accordingly held plaintiff failed to satisfy the condition precedent of serving a timely notice of claim and his proposed amendment to the complaint is patently devoid of merit.
PRACTICE POINT: You can’t make a labor law case into a maritime case just by claiming it is. Equally, you cannot commence a suit against a municipal entity without providing notice of claim pursuant to the GML. The real issues here for analyzing a case like this is the smell test, if it smells fishy, look carefully, it usually pays off.
March 22, 2017
Appellate Division, Second Department
Plaintiff allegedly fell from a scissor lift at defendant’s premises while performing demolition work for his employer. Plaintiff testified that while he and a coworker were removing sections of a “beam” from the ceiling, a section of the beam fell toward him, causing him to step out of the way and fall. The trial court granted plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim, finding the beam was an object that required securing and that the failure to properly secure it caused his accident.
The Second Department reversed as plaintiff failed to establish his prima facie that at the time the object fell, it either was being hoisted or secured, or required securing for the purposes of the work. The Court found an issue of material fact as to the nature and qualities of the “beam”, which was described differently by the parities. Since plaintiff failed to meet his burden, the Court did not consider Northern Steel’s opposition.
PRACTICE POINT: Where there are questions, as here, as to the nature of the object that fell, the ultimate issue, was it an object that required being secured for the task being done, cannot be answered by the court but rather requires a jury to determine that issue, and of course every, question of fact.
March 29, 2017
Appellate Division, Second Department
Plaintiff was injured while working as a painter for JTC at a renovation site when he allegedly slipped on debris and fell. Defendant 77 Water Street owned the property where the accident occurred, and Structure Tone was the general contractor or construction manager who entered into a subcontract with JTC.
77 Water Street and Structure Tone contended they were entitled to contractual defense and indemnification pursuant to a blanket insurance/indemnity agreement dated June 24, 2004, executed by Structure Tone and JTC prior to plaintiff's accident, and pursuant to an unsigned purchase order dated October 29, 2009, three days after the accident, in which Structure Tone authorized JTC to begin work at the subject property.
The trial court denied defendants/third-party plaintiffs 77 Water Street and Structure Tone’s motion for summary judgment on their contractual defense and indemnity claims, and granted third-party defendant JTC’ cross-motion to dismiss that claim. The trial court determined the provisions of the blanket insurance/indemnity agreement were not triggered until Structure Tone issued a purchase order, and there was no evidence that the parties intended the provisions of the purchase order to apply retroactively to the date of the accident. Accordingly, the trial court held there was no written contract or purchase order in existence on the date of the accident that required JTC to defend or indemnify 77 Water Street or Structure Tone.
Indemnity Issues in Labor Law (SEP)
Everyone loses in this one.
The Appellate Division noted that JTC’s position on the contract was not sustainable. While there was a question of fact as to whether the purchase order was meant to apply retroactively, the indemnity/insurance agreement in the earlier, executed contract, was not dependent on the later purchase order. Standing alone, the indemnity/insurance agreement provided broad indemnity protection. In so holding, the Court rejected JTC’s position that it only provided indemnity for that percentage of negligence apportioned to JTC.
Nevertheless, because 77 Water Street did not establish it was the owner of the premises, and Structure Tone did not establish JTC was performing work at the premises for Structure Tone at the time of the accident, questions of fact precluded summary judgment.
March 24, 2017
Appellate Division, Fourth Department
Plaintiff allegedly was injured when, while stepping from a ladder onto a Baker scaffold, he struck his head on an overhead beam, thereby causing him to fall backwards to the floor. The trial court granted plaintiff's motion for summary judgment on his Labor Law § 240(1) claim, and denied defendants’ cross-motion to dismiss the complaint on the grounds that plaintiff’s actions in using the scaffold at issue rather than arranging for a different scaffold to be delivered to the job, was the sole proximate cause of his incident.
The Fourth Department reversed, finding an issue of fact whether the scaffold failed to provide proper protection because it was not properly placed, thereby causing plaintiff's fall, or whether plaintiff simply lost his balance and fell when his head struck the beam. The Court also held plaintiff failed establish that the lack of safety railings on the scaffold is a sufficient basis for a determination of liability because the scaffold failed to provide proper protection, holding that there is an issue of fact whether the presence of rails would have prevented his fall.
The Court affirmed denial of defendants’ cross-motion as defendants failed to eliminate any issue of fact that plaintiff chose for no good reason to use the scaffold at issue when he knew that one of the wheels did not lock, rather than arrange for a different scaffold to be delivered.
PRACTICE POINT: The portion of the decision to remember is “there is an issue of fact whether the scaffold failed to provide proper protection because it was not properly placed, thereby precipitating plaintiff's fall, or whether plaintiff simply lost his balance and fell". This language is critical to the analysis many labor law cases. Simply losing your balance and falling is not a labor law case, at least not in the second.
March 24, 2017
Appellate Division, Fourth Department
Plaintiff was hired by defendants Nolan Construction, and Nolan Drywall to finish drywall in a single-family home owned by defendant Jared Weeden. Weeden hired CT Gates to construct the home, who subcontracted with Nolan to perform the drywall work. Plaintiff allegedly was injured when, while hanging a piece of drywall, he stepped into an unguarded stairwell opening and fell to the concrete basement floor below.
The trial court, among other things, denied plaintiff’s motion for summary judgment, and granted in part and denied in part Weeden’s and CT Gates’ cross-motions to dismiss the complaint alleging violations of Labor Law §§ 240(1), 241(6) predicated upon 1.7(b)(1), 200 and common-law negligence.
With respect to plaintiff’s motion, the Fourth Department noted the trial court incorrectly relied on its decision in Riley v Stickl Constr. Co., 242 AD2d 936 (4th Dept 1997) for its determination that a fall from the first floor through an unguarded opening to the basement is not a fall from an elevated worksite within the meaning of § 240(1). The Court categorically stated this is no longer good law, and instead concluded that, because there was a “difference between the elevation level of the required work and a lower level”, and because plaintiff fell through an opening in the floor, plaintiff is entitled to summary judgment on liability under Labor Law § 240(1).
PRACTICE POINT: Not a surprising decision overturning a 1997 rulling made before the Runner decision in which the Court of Appeals held that “we think the dispositive inquiry framed by our cases does not depend upon the precise characterization of the device employed or upon whether the injury resulted from a fall, either of the worker or of an object upon the worker. Rather, the single decisive question is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.”
As to plaintiff’s claim against the general contractor, the Fourth Department held the trial court denying that of plaintiff’s motion predicated upon Industrial Code regulation 1.7(b)(1), which is sufficiently specific and was violated because it is undisputed that the protective railings and plywood cover had been removed from the stairwell opening had been removed by someone other than plaintiff and he fell through the opening.
Nonetheless, the Court held “it is for the jury to determine whether the negligence of some party to, or participant in, the construction project caused plaintiff’s injury. If proven, the general contractor and statutory agents are vicariously liable without regard to fault.”
Labor Law § 200 and Common-Law Negligence (VCP)
The Fourth Department affirmed denial of Gates’ cross appeal for summary judgment on the Labor Law § 200 and common-law negligence claims as against Gates. Because there are issues of fact whether Gates's employees removed and/or failed to replace the railings and plywood cover, Gates failed to establish that it satisfied its duty to provide a safe place to work as required by section 200. Even assuming arguendo that Gates established that it did not supervise or control plaintiff's work, we conclude that, plaintiffs allege that the accident occurred as the result of a dangerous condition on the premises, any issue whether Gates supervised or controlled plaintiff's work is irrelevant. The Court noted Gates, as the party seeking summary judgment dismissing those claims, was required to establish as a matter of law that it did not exercise any supervisory control over the general conditions of the premises or that it neither created nor had actual or constructive notice of the dangerous condition on the premises, and held Gates failed to establish as a matter of law that it did not create the dangerous condition or that it lacked actual or constructive notice of it.
The Fourth Department also reversed the decision to grant summary judgment to Nolan on the Labor Law § 200 and common-law negligence claims as against Nolan. The Court held Nolan failed to establish as a matter of law that it did not have the authority to supervise and control plaintiff's work and, thus, it failed to establish that liability cannot be imposed on it under section 200. Nolan also failed to establish that it lacked actual or constructive notice of the dangerous condition and, thus, that it cannot be held liable for common-law negligence.
Indemnity Issues in Labor Law (SEP)
There is a lot going on in this case so we will take each motion individually. Importantly, however, we start with a review of the Court’s position on Weeden’s motion to dismiss the Labor Law § 200 claim. Recall, as noted above, the Court overturned the Trial Court’s denial of Weeden’s motion. In support of its decision, the Court noted that “plaintiff’s injury occurred as a result of the manner and method of the work…” Because, in the Court’s eyes, Weeden did not supervise, direct or control the means and method of its work, it determined that Weeden was entitled to dismissal of the Labor Law § 200 claim.
Gates’ Motions
What was good for the goose (Weeden) was not good for the Gates, however. Indeed, the Court rejected Gates’ position that it too was entitled to have the Labor Law § 200 claim dismissed. Why, you ask? Because the Court found a question as to whether Gates had “the authority to control the authority to control the activity bring about the injury.” In addition, the Appellate Division also notes that regardless of whether Gates supervised the work, it also alleged that plaintiff’s injuries were caused by a dangerous condition at the jobsite which may have been caused by Gates.
Gates’ motion for common law indemnity against Nolan was denied on the basis of that question of fact over whether it was responsible under Labor Law § 200. Recall, to succeed on a common law indemnity motion, the movant must establish itself free of negligence and its targeted indemnitor to bear some percentage of fault. Because Gates could not meet the first prong of the test, its motion failed.
Peiper’s Point –Wha huh? Note that in response to Weeden’s motion, in the paragraph immediately above, the Court ruled, as a matter of law, that “plaintiff’s injury occurred as a result of the manner and method of the work…” If so, why then, is Gates saddled with a defective condition hurdle as well? More specifically, why was it not Weeden’s responsibility to establish a lack of actual or constructive notice?
Further, the Court notes that Gates could be liable for a “means and method” issue simply because it had the authority to control. To put it mildly, we respectfully disagree with that statement (and, suspect readers of this newsletter would likewise disagree). It is the exercise of the authority which triggers Labor Law § 200, not simply having the contractual right. Simply stated, the Court could have ruled that there was an issue of fact over whether Gates created a defective condition. Likely a fair result. To do so, however, the decision on Weeden’s motion needed to be adjusted.
Nolan’s Motions
Nolan’s motion to dismiss Labor Law § 200 was denied, as with Gates, where the Court held that questions of fact existed over whether it (a) had authority to supervise plaintiff’s work or (b) whether it had actual or constructive notice, or created, a defective condition.
Peiper’s Point –Wha huh, Part II? See wha huh, supra.
McKay’s Motion
McKay moved to dismiss the counter-claim of Gates and Nolan which was based upon a purported indemnity provision in a subcontract McKay signed with Gates. The trial court denied McKay’s application, and the Appellate Division reversed. McKay, apparently, entered into a contract with Nolan which provided “he [McKay], as a subcontractor, would pay and indemnify the ‘owner and contractor’ against any loss and will hold each of them harmless and pay any ‘liability or damage . . . , which the owner and general contractor incurred because of injury to . . . any person . . . as a consequence of the performance of the work’’.” In addition, McKay also signed a document which provided “is intended to memorialize certain of the terms and conditions concerning payment and completion of work in connection with certain sub-contract jobs . . . In the event that the [subcontrator] employs any workers, he shall . . . indemnify and hold [Nolan] harmless for any liabilities or claims which may be made by such personnel against [Nolan], or any liabilities or claims which may be made by third parties based on any acts or omissions of [subcontractor] or such personnel.
In granting the motion to dismiss the counter-claim, the Appellate Division noted that it was not clear if McKay agreed to indemnify, among others, Nolan. Moreover, it was also unclear if the contract was meant to apply to the injuries he, himself, sustained.
Peiper’s Point –Wha huh, Part III?
March 24, 2017
Appellate Division, Fourth Department
Plaintiff was injured while assisting defendant and four other men in raising an exterior wall as part of the construction of a single-family residence. Defendant was the framing subcontractor, and plaintiff was employed by the general contractor. As plaintiff, defendant and others attempted to raise the wall by hand, defendant determined the wall was too heavy and instructed the men to lower it. Plaintiff was injured when the wall fell on him as it was being lowered.
The Fourth Department, on a prior appeal, granted plaintiffs’ motion for partial summary judgment on his Labor Law § 240(1) claim, and granted defendant’s cross-motion seeking leave to amend the answer to assert as an affirmative defense that plaintiff was his special employee. The trial court granted defendant’s motion to bifurcate the trial, and the jury returned a verdict finding that at the time of the incident plaintiff was a special employee of defendant.
The trial court also granted defendant’s motion to dismiss the complaint and denied plaintiff’s cross-motion to set aside the jury verdict and for judgment on liability in favor of plaintiff or for a new trial on the ground that the verdict was against the weight of the evidence.
The Fourth Department ultimately held the denial of plaintiff's post-trial cross-motion was proper by the trial court because plaintiff failed to establish that there was “simply no valid line of reasoning and permissible inferences” that could possibly lead rational jurors to find that he was a special employee of defendant. Nor was the evidence so in plaintiff’s favor that the jury could not have reached its verdict by any fair interpretation of the evidence, and therefore the verdict was not against the weight of the evidence that defendant presented that he alone controlled and directed the manner, details, and ultimate result of plaintiff’s work on the day of the accident, and the work being performed was in furtherance of defendant’s business rather than the general employer's business.
PRACTICE POINT: Out of this entire collection of motions, jury verdicts and appeals the most important piece of information to remember is that while a 3212(a) motion for Summary Judgment must be timely made (within 120 days of the note of issue) a 3211(b) motion is not subject to the same time limit.
Kennedy v Oswego City School Dist.
March 31, 2017
Appellate Division, Fourth Department
The trial court denied claimants’ application for leave to serve a late notice of claim on respondent for violations of the Labor Law.
The Fourth Department affirmed because claimants failed to establish that respondent had actual knowledge of the essential facts constituting the claim with the requisite time period, which is one of the factors “that should be accorded great weight in determining whether leave to serve a late notice of claim should be granted.”
The Court noted the accident report prepared by claimant’s employer and purportedly received by the construction manager for the school project did not impute to respondent the requisite actual knowledge inasmuch as the evidence in the record failed to establish the construction manager was an agent of respondent. More importantly, the Court stated respondent’s knowledge of the accident and injury, without more, does not constitute actual knowledge of the essential facts constituting the claim, citing Folmar v Lewiston-Porter Cent. School Dist., 85 AD3d 1644 (4th Dept 2011).
PRACTICE POINT: The decision of the trial court in a motion to file a late notice of claim is given great weight ("Absent a clear abuse of the court's broad discretion, the determination of an application for leave to serve a late notice of claim will not be disturbed" ) and thus I highly recommend that you pull out ever argument at your disposal to win the motion at the trial court level, as it is unlikely to be overturned. Unfortunately that language, from the Dalton case, is what the court ruled against my client, and I periodically have to relive it.
LABOR LAW § 241(6) REGULATIONS; SPECIFIC OR GENERAL (MAS)
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12 NYCRR § 23-1.8(c) – Protection in Construction, Demolition and Excavation Operations; Personal Protective Equipment; Protective Apparel; Head Protection. |
§ 23-1.8(c)(1) states “Every person required to work or pass within any area where there is a danger of being struck by falling objects or materials or where the hazard of head bumping exists shall be provided with and shall be required to wear an approved safety hat” which “shall be provided with liners during work in areas or at such time where the temperature is below 55 degrees Fahrenheit”; and is sufficiently specific. |
Lysiak v Murray Realty Co., 227 AD2d 746, 642 NYS2d 350 (3d Dept 1996); Singh v 106-108 Bayard Street Corp., 300 AD2d 31, 750 NYS2d 496 (1st Dept 2002); Sikorski v Burroughs Drive Apartments, Inc., 306 AD2d 844, 762 NYS2d 718 (4th Dept 2003); Modeste v Mega Contracting, Inc., 40 AD3d 255, 835 NYS2d 156 (1st Dept 2007); Spiegler v Gerken Bldg. Corp., 57 AD3d 514, 868 NYS2d 712 (2d Dept 2008); Marin v AP-Amsterdam 1661 Park LLC, 60 AD3d 824, 875 NYS2d 242 (2d Dept 2009); Jackson v Heitman Funds/191 Colonie LLC, 111 AD3d 1208, 976 NYS2d 283 (3d Dept 2013). |
Lysiak held reg. is not intended to afford protection against hazard of falling tree. Singh held reg. sufficiently specific to support § 241(6) claim. Sikorski held reg inapplicable where π was not working below area from which injury-producing sheet of drywall fell & struck him. Modeste held reg did not apply where π thrown off roof of skid loader when machine lurched since injuries were not caused by falling object or material or other head-bumping hazard. Spiegler held reg did not furnish basis for ∆s’ liability where π allegedly struck with 10-foot vertical mounting channel he was securing to the ground fell, where he was employed to perform electrical work. Court in Marini held reg potentially applicable where π struck on head by previously attached bracket which became dislodged & where two similar brackets had fallen same day; court also distinguished reg 1.7(a)(1) which only applies where work site “normally exposed” to falling objects. Jackson held reg inapplicable where π struck in head by handle of a roll carrier that moved rapidly upward when the roll carrier slipped on icy roof; π’s expert did not state that π’s work subjected him to type of hazards that would require hard hat. |
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