LABOR LAW 2010-2011 UPDATE - Amazon S3 · v. the class of people covered under §240 ..... 121 vi. who is responsible under §240 – contractors and owners and their ... (espinosa

LABOR LAW 2010-2011 UPDATE

DANIEL R. SANTOLA Powers & Santola, LLP 39 North Pearl Street, 6th floor Albany, NY 12207 (518) 465-5995

Copyright © by Daniel R. Santola. All Rights Reserved. 99

100 Copyright © by Daniel R. Santola. All Rights Reserved.

TABLE OF CONTENTS I. INTRODUCTION ............................................................................................. 103 A. Under What Circumstances Will §240 apply? ...................................... 103 1. Falling Workers ............................................................................... 103 2. Falling Objects : a) objects being raised or lowered ....................... 107 b) objects needing to be secured ......................... 109 B. Injuries Occasioned by Extraordinary Elevation-Related Hazards vs. Typical Hazards on any Construction ............................... 113 C. Falls from Ladders ................................................................................ 114 1. Improper Placement or Unsecured Ladders D. Falls Involving Trucks and Other Vehicles .......................................... 114 E. Permanent Stairways and Other Permanent Structures ........................ 114 F. Elevators ............................................................................................... 116 II. WHAT TYPE OF WORK DOES SECTION 240 COVER? ............................. 116 A. Demolition and Salvage Work .............................................................. 116 B. Repair Work vs. Routine Maintenance or Manufacturing .................... 118 C. Alteration Work .................................................................................... 119 D. Painting ................................................................................................. 119 E. Cleaning Work ...................................................................................... 119 F. Pointing ................................................................................................. 119 III. WORK ASSOCIATED WITH, OR AN INTEGRAL PART OF, A COVERED ACTIVITY ................................................................................. 120 IV. BUILDING OR STRUCTURE ......................................................................... 121 V. THE CLASS OF PEOPLE COVERED UNDER §240 ..................................... 121 VI. WHO IS RESPONSIBLE UNDER §240 – CONTRACTORS AND OWNERS AND THEIR AGENTS ............................ 121 VII. PROCEDURAL ISSUES .................................................................................. 123 A. Summary Judgment Motions Under §240 ............................................ 125 B. Necessary Facts to Prove a Violation or Defense under §240 .............. 126 C. Breach of the Statute ............................................................................. 127 D. Unwitnessed Accidents ......................................................................... 128 VIII. PROXIMATE CAUSE ..................................................................................... 128 A. Recalcitrant Worker Doctrine/ Blake Defense ..................................... 128 IX. ADEQUACY OF THE SAFETY DEVICE ...................................................... 131 X. SUPERSEDING CAUSE .................................................................................. 132 XI. WHEN DOES §241(6) APPLY? ....................................................................... 133 A. Must Plead and Prove a Specific Industrial Code Rule Violation ........ 133 B. The Rule Must Apply to the Facts Which is a Matter of Law, Not One of Fact..................................................................................... 135 C. Scope of Work Covered by §241(6) .................................................... 138


D. Type of Activity Covered by Industrial Code ...................................... 139 E. Notice .................................................................................................... 140 F. Proof of Negligence and Proximate Cause Required ............................ 141 G. Class of People Covered by §241(6) .................................................... 141 H. Who is Responsible Under §241(6)? ................................................... 142 XII. Summary Judgment Motions under 241(6) ...................................................... 142 XIII. DEFENSES UNDER §240 AND §241 ............................................................ 143 A. One- and Two-Family Homeowners Statutory Exemptions ................. 143 B. Comparative Negligence ....................................................................... 144 C. Engineers and Architects ...................................................................... 144 D. Workers’ Compensation ...................................................................... 145 E. Grave Injury ......................................................................................... 145 F. Special Employee ................................................................................ 145 XIV. CONFLICTS OF LAW ISSUES INVOLVING A LABOR LAW .................. 146 XV. LIABILITY OVER: INDEMNIFICATION/CONTRIBUTION ..................... 146 XVI. PRE-EMPTION OF FEDERAL ADMIRALTY LAW .................................... 149 XVII. SECTION 241-a: LIABILITY ......................................................................... 149 XVIII. SECTION 200 ................................................................................................... 149 XIX. NOTICE OF CLAIM ........................................................................................ 153 XX. SECTION 202: WINDOW WASHER STATUTE ......................................... 153 XXI. UNDOCUMENTED ALIEN WORKER .......................................................... 154 XXII. MISCELLANEOUS ......................................................................................... 154


I. INTRODUCTION A. Under What Circumstances Will §240 Apply? 1. Falling Workers Mendoza v. Highpoint Assoc., IX, LLC, 83 AD3d 1, (1st Dept. 3/8/11) Three separate opinions written in this case cover multiple issues. The majority opinion covered a threshold issue of whether a defendant who failed to comply with discovery demands, which ultimately led to a self-executing preclusion order from offering proof at the time of trial, also precludes defendant from making a motion seeking summary judgment on liability. The majority opinion drew a distinction between offering affirmative proof as opposed to relying upon plaintiff’s proof to establish plaintiff’s failure to make out a prima facie case, therefore entitling defendant to summary judgment. The Court did, however, preclude the consideration on defendant’s motion of any affirmative proof since that would in essence undermine the purpose and intention of the preclusion order. Judge Acosta, writing an opinion concurring in part and dissenting in part, disagreed with the resolution of this issue on the basis that preclusion order bars defendant from offering its own affirmative evidence at trial and/or in support of its summary judgment motion. “Apparently, categorizing evidence as for either plaintiff or the defense, the majority condones defendant’s use of plaintiff’s deposition testimony to support its motion be-cause it was given by plaintiff and it is therefore not defendant’s affirmative evidence. I disagree.” The fact that defendant uses plaintiff’s deposition testimony to support its motion should make no difference. It is still evi-dence produced by defendant. Judge Tom dissents in part by concurring with Judge Acosta that the issue of preclusion requires denial of defen-dant’s motion. Since defendant is barred from offering evidence, it is therefore unable to demonstrate its prima facie entitlement to summary judgment. The majority opinion permitted consideration of defendant’s summary judgment motion, but, by using plaintiff’s deposition, the Court went on to discuss the substantive issue of wheth-er plaintiff made a prima facie case on his 200, 240(1) and/or 241(6) claims. Plaintiff was employed by Keystone Management as a property manager. In April of 2006, there had been complaints of a leak in the roof of defen-dant’s building and plaintiff was directed by his supervisor assess the damage and fix it. Plaintiff testified that the leak began in 2005 and complaints had been made by tenants to plaintiff’s supervisor that the roof was flimsy and not safe. Plaintiff was doing a walk-through, making an assessment of what repairs were necessary and what materials would be required, when a portion of the roof he was walking on began to buckle, falling one to two inches which, in turn, resulted in his loss of balance, causing a fall onto a conduit pipe sticking up out of the roof. Although defendant did not have control over the method or manner of plaintiff’s work, it can nonetheless be held liable if a dangerous condition exists on the premises which was either created by defendant or which existed for such a period of time that defendant had actual or constructive notice. Because there was proof of the roof leak-ing since at least 2005, the management company and, presumably, the defendant, were also aware of that. The Court also held that since defendant commanded plaintiff to inspect the roof despite the knowledge that the roof was flimsy, it gave rise to the duty under section 240(1) for defendant to provide plaintiff with appropriate safety devices. To reach this conclusion, the Court held that the plaintiff was not performing routine maintenance work but repair work. He was also not performing mere inspection work, but was assessing the work needed to be done to complete the repair work. This was an integral part of the repair work, which under ordinary circumstances would proceed under his supervision and that it was an eminent event and not merely a possible future task. The Court concluded that the facts gave rise to the need for safety devices under section 240(1) by stating, “Consistent with the principle that ‘the determination of the type of protective device required for a particular job [and thus whether section 240(1) is implicated] turns on the foreseeable risks of harm presented by the nature of the work being performed’ Buckley v. Columbia Grammar and Preparatory, 44 AD3d 263, 268 [2007], lv denied 10 NY3d 710 [2008],” this Court recently held in Jones v. 414 Equities, LLC, (57 AD3d 65 [2008]), and reiterated


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in Espinosa v. Azure Holdings II, LP (58 AD3d 287 [2008]), that to prevail on a Labor Law § 240(1) claim based on an injury resulting from the failure of a completed and permanent building structure, ‘the plaintiff must show that the failure of the structure in question was a foreseeable risk of the task he was performing’ (Espinosa at 291, quoting Jones at 80) creating a need for protective devices of the kind enumerated in the statute (Espinosa at 291-292). The Court also cited to the Second Department case of Shipkoski v. Watch Case Factory Assoc., 292 AD2d 587, where the Court held that the condition of the building in which the plaintiff was working was in such a state of disrepair that it was sufficient to give rise to a triable issue since plaintiff’s work exposed him to a foreseeable risk of injury from an elevation-related hazard.” On the issue of foreseeability, Judge Acosta concurred with the result that plaintiff had spelled out a prima facie case under 240(1), but disagreed with that part of the reasoning employing the term foreseeability. Referring in his dissent in Vasquez v. Urbahn, 79 AD3d 493, he stressed the point that the statute itself does not refer to any element of foreseeability, only that contractors, owners and their agents “shall furnish” appropriate safety devices. According to Judge Acosta, the concept of foreseeability was addressed by the Court of Appeals where it explicit-ly stated that “plaintiff need not demonstrate that the precise manner in which the accident happened or that the injuries occurred was foreseeable; it is sufficient that he demonstrate that the risk of some injury from defendant’s conduct was foreseeable.” It is enough that given the inherent dangerous conditions of worksites, it is foreseeable that an owner’s or contractor’s failure to provide safety devices to workers, as here, may result in an injury. Aside from the disagreement as to whether defendant could use plaintiff’s deposition testimony to support a mo-tion for summary judgment when precluded from introducing any evidence at trial, all judges agreed with the rea-soning that plaintiff’s 241(6) claim should be dismissed since the only Industrial Code Rule cited, 23-1.7(e)(2), mandating that workers are not to be exposed to dirt, debris, scattered tools and other material and from sharp pro-jection, did not apply to the facts since plaintiff did not trip over any object that was left as a result of the work being performed. Falling on the pipe was not the equivalent of tripping on debris.

Runner v. New York Stock Exchange, Inc., 13 NY3d 599 (12/17/09) This decision rejects the decades-old belief that section 240(1) will apply only when the plaintiff is exposed to an elevation differential or when an object (one which is being raised, lowered, or needs to be secured) falls and strikes the plaintiff. This case reached the Court of Appeals upon certification by the Second Circuit, U.S. Court of Appeals. Runner was injured while attempting to lower an 800 pound reel of cable down a set of approximately four steps at the New York Stock Exchange. He was directed to tie a rope around the reel and extend the rope, wrapping it around a metal bar placed across the doorway with the plaintiff and his co-worker holding on to the rope, essentially acting as a counterweight. When the other two co-workers began to guide the reel down the stairs, the plaintiff lost control of the rope and injured his hand between the rope and the bar. The jury returned a verdict in favor of the defendant, finding that the injury was not attributable to a gravity-related risk. The trial judge set aside the verdict and granted plaintiff judgment as a matter of law. The Second Circuit stated that if the plain language of section 240(1) were to apply, then obviously plaintiff should prevail, but also noted that there are several cases which seem to place “artificial limits” on the statutory duty. Hence, the Second Circuit asked for guidance from the Court of Appeals. The defendant's position was that the injury was not caused either by the plaintiff falling from an elevated height or by being struck by the 800 pound reel and, therefore, under Ross v. Curtis Palmer, 81 NY2d 494, and Narducci v. Manhasset, 96 NY2d 259, section 240(1) did not apply. The Court, however, pointed out that neither of these decisions "purports exhaustively to define the statute’s protective reach." Instead, the governing rule is that section 240(1) was designed to prevent accidents in which scaffolds, hoists, stays, ladders and other protective devices would provide adequate protection from the harm flowing directly from the application of gravity. Such situations are not limited to only those injuries caused by the plaintiff falling and/or





objects falling on the plaintiff. The relevant inquiry is whether the harm flows directly from the application of the force of gravity to the object, causing the harm which protective devices of the type delineated in the statute would normally prevent. Here, the harm to Runner was the direct consequence of the application of the force of gravity to the reel to the same extent as if the injury was caused by the plaintiff being in the path of the descending reel. The Court dispensed with all the cases cited by defendant, stating that until this case arose, the Court of Appeals had never had the occasion to address the issue of whether plaintiff can recover only when the injury is caused directly by falling or being struck by a falling object. The Court also rejected the notion that the distance the reel had descended was de minimis, stating that due to the weight of the object, considerable force would be generated even over a relatively short descent. NOTE: This unanimous decision written by Chief Judge Lipman significantly alters the scope of section 240(1). No longer does the plaintiff's injury have to be shown to be a direct consequence of falling from one height to another, or caused by an object falling from one height to a lower level, striking the plaintiff. The focus of attention should be upon whether the injury to the plaintiff was a direct consequence of the force of gravity, all of which could have been prevented if one of the enumerated safety devices could have been employed. Strangio v. Sevenson Environmental Services: 913 NY2d 639 (12/1/10) Without a discussion of the underlying facts, the Court reversed the 4th Department 3:2 decision that dismissed plaintiff’s 240(1) claim, stating there were triable issues of fact as to whether defendants provided proper protection under section 240(1). According to the Appellate Division decision, the accident occurred as plaintiff was lowering a section of scaffolding by way of a material hoist. Control of the descending section was lost and plaintiff was injured by the uncontrolled backward movement of the crank handle on the hoisting mechanism due to a defect in the hoist itself. A three judge majority felt that the accident scenario was not directly related to the forces of gravity while the two dissenting judges opined that, according to the Court of Appeals decision in Runner, 13 NY3d 605, plaintiff set forth a valid 240(1) cause of action with which the Court of Appeals apparently agreed. Gasques v. State of New York, 15 NY3d 869 (10/21/10) Plaintiff, a bridge painter, injured his hand when it became caught between the scaffold and the leg of the bridge that he was painting. Both parties agree that plaintiff’s hand was crushed as the motor driven scaffold ascended while his hand was trapped between the motor control and the steel structure of the bridge itself. The Court held that this was not a direct consequence of the application or the force of gravity. Citing to both Runner v. New York Stock Exchange and Ross v. Curtis Palmer. Also, plaintiff’s 241(6) claim based upon 12 NYCRR 23-1.5(c)(1) requiring machinery to be in good repair and safe working condition is not a specific positive command. Smith v. Broadway 110 Developers, LLC: 80 AD3d 490 (1st Dept. 1/18/11) In this case where the plaintiff crushed his chest when the scaffold he was on swung toward a building, the Court denied defendant’s motion to dismiss the 240(1) and/or 241(6) claims. These facts raise an inference that plaintiff’s accident was one in which the scaffold . . . proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person, citing to Ross v. Curtis-Palmer, 81 NY2d 494 and Runner v. NY Stock Exchange, 13 NY3d 599. Moreover, the Court pointed out that plaintiff testified that when the scaffold started to swing, he grabbed onto it to avoid falling. Defendants also failed to demonstrate that there were no violations of 12 NYCRR 23-5.8 and/or 23-5.9. The Court did grant defendant’s motion for indemnification on the basis that there was no proof of any negligence on the defendants’ part as demonstrated by the Court dismissing the Labor Law 200 claim and common law negligence claim.






Jara v. New York Racing Assn., Inc.: AD3d (2nd Dept. 6/28/11) Plaintiff was employed as a laborer for a demolition company hired by defendant, Tishman, the construction manager who retained plaintiff’s employer. After unplugging an electric saw from a power outlet in an adjacent room, plaintiff was climbing over an eight foot high partially demolished wall and a pile of demolition debris which was blocking the doorway in order to return to his work station. Reversing the lower court, the Second Department granted summary judgment to the plaintiff quoting from Runner v. NY Stock Exch., 13 NY3d 599. “The single decisive question is whether plaintiff’s injuries were the direct consequence of the failure to provide adequate protection against a risk arising from a physically significant elevation differential.” The Court also re-versed the decision which refused plaintiff’s “belated identification of specific Industrial Code sections,” since there was no prejudice to the defendants and sections 23-1.7(e)(1) and (2) both apply to the facts, and there are no new factual allegations or new theory of liability. The Supreme Court should have granted plaintiff’s cross-motion for leave to supplement his bill of particulars, setting forth these two Industrial Code rules. Miranda v. Norstar Bldg. Corp., 79 AD3d 42 (3rd Dept. 10/28/10) The plaintiff sustained a traumatic brain injury when he fell approximately 30 feet from the edge of the roof he was working on. Suit was brought against the owner, general contractor, project manager and the roofing subcon-tractor. Defendants opposed plaintiff’s motion for summary judgment, alleging that they complied with OSHA requirements allowing for a safety monitoring system. The system consisted of one worker who would warn roo-fers when they approached a roof edge or other fall hazard. No other safety devices were provided. Defendants argued that the plaintiff was warned by the safety monitor to “watch the edge,” but seconds later the plaintiff slipped off the roof. Defendants argued the safety monitoring system was widely acceptable in the roofing trade, permitted by OSHA and should be considered a safety device for purposes of section 240(1). The Court disa-greed. Referring to the monitor’s testimony that, “I can’t prevent someone from slipping off the roof.” The Court concluded that a person acting as a safety monitor is not of the same general kind or class of safety device as the physical objects enumerated in the statute. The Court also rejected defendants’ contention that plaintiff did not prove what additional safety devices would have prevented his injury. This is not an element plaintiff must prove. The Court further determined that plaintiff’s employer could not be held liable under common law indemnifica-tion since there was inadequate proof to show plaintiff sustained a grave injury. Although plaintiff appeared in the lawsuit by his guardians appointed under the Mental Hygiene Law as a consequence of his head injury, such a finding is not binding on the court determination of a grave injury under Section 11 of the Worker’s Compensa-tion Law. Proof on the record created an issue of fact as to whether the plaintiff was totally disabled from per-forming any work, as there were differences of opinions amongst the medical experts. Rendino v. City of New York, 83 AD3d 540 (1st Dept. 4/19/11) Plaintiff was injured while caulking windows on the sixth floor of a building owned by defendant. To do so, he stood in a basket attached by a cable to a crane. As the basket was being lowered, it suddenly dropped several feet causing plaintiff to fall within the basket. This, the Court held, is directly related to the forces of gravity and a violation of 240(1), thus, entitling plaintiff to summary judgment. Tafelski v. Buffalo City Cemetary, 68 AD3rd 1802 (4th Dept. 12/30/10) Plaintiff was working on a scaffold adjusting clamps on a header beam. A co-worker was standing above the plaintiff on the partially constructed roof, laying plywood panels on the joist. The co-worker dropped a plywood panel over the area where plaintiff was working, causing plaintiff to lose his balance and slip several rungs down the scaffold. The Court granted plaintiff summary judgment on his section 240(1) claim, stating this was not a usual and ordinary risk of a construction project, but one of the ultra-hazardous activities of working at heights.







Wild v. Marrano, 75 AD3d 1099 (4th Dept. 07/02/10) The plaintiff slipped while on a plank that partially covered an excavation pit, resulting in his fall into the excavation. The Court affirmed summary judgment to plaintiff on the section 240(1) claim since plaintiff’s fall from ground level into an excavation is “the type of elevation-related risk for which Labor Law section 240(1) provides protection.” 2. Falling Objects a) Objects Being Raised or Lowered Harris v. City of New York, 83 AD3d 104 (1st Dept. 4/5/11) to first cut the slab out of the bridge deck and then attach a choker chain to each side of the slab, attaching it to a crane that would lift it from the bridge surface. While in the process of lifting one of the slabs, one side did not come free from the bridge although it had been cut. In order the pry it loose, plaintiff was directed to wedge a 4 x 4 piece of timber underneath the slab and to stand on one end of it while the crane operator lowered the slab, an-ticipating that the weight of the slab on the freed side would cause the wedged side to break free. The slab was lowered too quickly causing the 4 x 4 to shatter, resulting in plaintiff’s fall and injuries. The Court reversed sum-mary judgment granting defendant’s motion to dismiss the 240(1) and 241(6) claim and, in turn, granted plain-tiff’s summary judgment on both causes of action. The Court drew a comparison with Runner v. New York Stock Exchange, 13 NY3d 603, noting the similarities of a heavy object falling a short distance and resulting in harm to a worker directly caused by the forces of gravity. The Court determined the defendant is liable for failing to give an adequate device precisely of the sort enumerated in the statute since it was not placed and operated as to give proper protection to plaintiff. The Court also reversed the lower Court’s denial of plaintiff’s motion to amend the Bill of Particulars to allege violations of Rule 23 and, based upon the proposed Industrial Code violations to be alleged, granted plaintiff’s motion for summary judgment on his 241(6) claim, stating there was no issue of fact as to the violation of these provisions. Since plaintiff’s foreman submitted an affidavit indicating that he directed the plaintiff to stand on the 4 x 4, the Court obviously concluded there was no comparative negligence on plaintiff’s part, paving the way for judgment on liability on the 241(6) claim. Davis v. Wyeth Pharmaceuticals, Inc.: AD3d907 (3rd Dept. 5/24/11) Plaintiff and a co-worker were attempting to move a filtration unit weighing in excess of 1,000 pounds from one location in a building to another. The unit had been raised on two pallet jacks eight to ten inches off the floor, with plaintiff pulling and his co-worker pushing the unit along the floor. While doing so, plaintiff slipped, grab-bing the unit to catch his balance and causing the unit to tip over and land on his leg. After the case had been sued, plaintiff sought leave of court to amend his complaint to allege a 240(1) cause of action, arguing that the recent Runner v. New York Stock Exchange decision clarifies this special scenario to come within section 240. The appellate division affirmed the trial court’s refusal to allow the amendment upon the reasoning that plaintiff’s accident scenario does not give rise to a 240(1) cause of action and, therefore, there was no merit to the proposed newly-alleged cause of action. In Runner, “the court made it clear that it was not establishing any new principles, merely expounding on the governing principles enunciated almost 20 years previously.” Here, the filtration unit was not in the process of being raised or secured. The unit was being moved in a vertical fashion. It tipped and fell only because the plaintiff slipped and accidentally grabbed onto it, pulling it over. “Thus, it was not the ele-vation of the unit from the ground that presented a risk to plaintiff. Indeed, there is nothing in the record to indi-cate that the same result would not have occurred had the unit been sitting directly on the ground.”









NOTE: There are some subtle but very important distinctions to be made between the Runner facts and the facts of this case. In Runner, the safety device provided (rope wrapped around a metal bar) was inadequate to control the weight of the descending 800 pound reel. In the Davis case, the pallet jacks did not fail and there was nothing in the use of the pallet jacks which affected the instability of the filtration unit. In Davis, there was no evidence in the record to show that the elevated height of the filtration unit, eight to ten inches, caused any further injury or damage to the plaintiff than if it was resting on the floor and fell over onto his leg. In Runner, gravity pulling the 800 pound reel down steps from one elevation to another was the direct cause of plaintiff being unable to prevent the rope and his fingers from being wrapped around the metal bar. Gutman v. City of New York, 78 AD3d 886 (2nd Dept 11/16/10) Plaintiff, a railway worker for the Transit Authority, was injured when he and his crew attempted to move a 39 foot, 1,300 pound rail up on top of another rail. Workers were using rail hooks to assist in the lifting but when the signal was given for the team to lift in unison, the plaintiff was not ready, resulting in the crew not being able to maintain the lift and causing it to fall 12 to 16 inches onto plaintiff’s leg. The Court reversed defendant’s grant of summary judgment stating that “the elevation differential here involved cannot be viewed as de minimus, particu-larly given the weight of the object and the amount of force it was capable of generating, even over the course of a relatively short dissent” Citing Runner, 13 NY3d 605. Plaintiff was not entitled to summary judgment since there was an issue of fact as to the adequacy of the safety device provided. Mueller v. PSEG Power New York, Inc ., 83 AD3d 1274 (3rd Dept. 4/14/11) Plaintiff was working with a crew which was off-loading concrete forms from a flatbed truck by use of a crane. Ultimately, the task was intended to store the forms by leaning them against a concrete pad with scrap wood pieces to be placed between the forms in the concrete pad. When the form was dropped into its final place, the crane cable would be released and plaintiff, with a co-worker, was to hold the form slightly away from the concrete pad until the scrap pieces of wood were positioned. As the crane boom moved, it accidentally snagged one of the forms, lifting it a few inches before dropping it and causing it to fall on plaintiff’s leg. The Court dismissed the 240(1) claim stating, “a plaintiff must show more than simply that an object fell causing injury to a worker. A plaintiff must show that the object fell while being hoisted or secured because of the inadequacy of a safety device of the kind enumerated in the statute.” Narducci, 96 NY2d 259. Here, the form which caused the injury was no longer intended to be hoisted. The claim by plaintiff that the hoisting cable should have remained so as to support the form until the scrap wood was in place, was insufficient to save the 240(1) claim. According to the Court, this kind of use of the cable would not be for an elevation-related purpose, but merely to hold the forms in position to protect against a hazard more closely related to general work place hazards, rather than an elevation-related hazard. Plaintiff’s 241(6) claim was also dismissed on the basis that 23-2.2(a), while specific in its command, did not apply to these facts since it re-quires concrete forms to be braced or tied together while being used during the pouring of concrete, which was not the situation here. Fried v. Always Green, LLC, 77 AD3d 788 (2nd Dept. 10/19/10) The plaintiff was struck on the head by a bag of construction debris which was thrown by a co-worker from the roof of a building and intended to land into a dumpster. The plaintiff was standing 10-18 feet away from the dumpster when struck. The Court dismissed the 240(1) claim stating that the bag was not being hoisted or required securing. The 200 claim was dismissed against the owner since there was no showing that defendant had the authority to supervise or control the performance of the work. It did allow plaintiff’s 241(6) claim premised upon 12 NYCRR 23-2.6 finding a triable issue of fact regarding whether the absence of a required “catch platform” was a proximate cause of the injury.






Solano v. City of New York, 77 AD3d 571 (1st Dept. 10/26/10) Plaintiff was struck by a piece of plywood that had been deliberately dropped from the window above him. This did not constitute a falling object for purposes of section 240(1). Roberts v. GE, 97 NY2d 737. B. Objects Needing to be Secured

Martins v. Board of Educ. Of City of N.Y., 82 AD3d 1062 (2nd Dept. 3/22/11) Plaintiff, a demolition laborer, was injured when a co-worker struck a wall with a lift he was operating, causing the wall to fall onto the floor. The floor then collapsed, causing plaintiff to fall 10-12 feet to the second floor below. The Court said “… the col-lapse of a permanent floor may give rise to liability under Labor Law Section 240(1) where ‘circumstances are such that there is a foreseeable need for safety devices.” Balladares, 40 AD3d 667. Here, the Court stated plain-tiff failed to demonstrate that it was foreseeable that the floor could collapse and, therefore, safety devices were needed. The Court dismissed the 241(6) claim premised upon 23-3.3(c), since there was no evidence that the de-fendants failed to perform the required inspections under this provision.

NOTE: There can be no doubt that the Second Department requires that the plaintiff demonstrate a foreseeable need for safety devices while performing demolition type activities. The bigger question is what the Court of Ap-peals will do when this issue is finally within its reach. The Martins decision relies upon the Second Depart-ment’s prior 2007 decision in Balladares v. South gate Owners Corp., 40 AD3d 667. There, the plaintiff was in-jured while preparing to take down a brick wall using a jackhammer. The basement floor he was standing on col-lapsed, causing him to fall into a hole. The Court granted defendant summary judgment upon the principle that liability under section 240(1) “is contingent upon the existence of a hazard contemplated in section 240(1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein.” Narducci, 96 NY2d 259. Also, “where the injury results from a separate hazard wholly unrelated to the risk which brought about the need for the safety device in the first instance, no section 240(1) liability exists.” Nieves v. Five Boro, 93 NY2d 914.

In Martins, the Second Department held that the defendant established that the collapse of the basement floor was not a risk that gave rise to the need for the enumerated safety devices, but was rather a separate unrelated ha-zard. The decision went on to say, “Although injury resulting from the collapse of a floor may give rise to liability under Labor Law Section 240(1), where the circumstances are such that there is a foreseeable need for safety de-vices (see, Centeno v. 80 Pine, 294 AD2d 326 [2002]; Shipkoski v. Watch Case Factory Assoc., 292 AD2d 587 [2002]; Taylor v. VAW of Am., 276 AD2d 621, 622 [2000]; Richardson v. Matarese, 206 AD2d 353 [1994]), the plaintiff failed, in opposition, to raise a triable issue of fact in this regard.”

Centeno, also a Second Department decision, did not discuss the topic of foreseeability. Centeno was a demoli-tion worker using a jackhammer to remove a section of a floor of a building being demolished. As he did so, the floor collapsed and he fell 16 feet to the basement. The Court affirmed the denial of summary judgment to the plaintiff on his 240(1) claim, stating that there was an issue of fact created by the opposing papers as to whether the plaintiff had, in fact, been given safety devices as the defendant’s proof showed his other co-workers were given.

Shipkoski was hired to install plywood to board up the broken windows of a building. As plaintiff was walking on the deteriorated third floor measuring windows for the installation of the plywood, the floor gave way causing him to fall through. In this decision, the Second Department began its discussion by stating, “Labor Law Section 240(1) was enacted ‘in recognition of the exceptionally dangerous conditions posed by elevation differentials at work sites’ Misseritti v. Mark IV Constr. Co., 86 NY2d 487, 491, 634 NYS2d 35, 657 N.E.2d 1318)”. From this, the Court concluded that “there must be a foreseeable risk of injury from an elevation-related hazard to impose liability under the statute, as ‘defendants are liable for all normal and foreseeable consequences of their acts’ Gor-






don v. Eastern Ry. Supply, 82 NY2d 555, 562, 606 NYS2d 127, 626 N.E.2d 912).” Thus, to establish a prima facie case pursuant to Labor Law section 240(1), a plaintiff must demonstrate that the risk of injury from an eleva-tion- related hazard was foreseeable and that an absence or defective protective device of the type enumerated in the statute was a proximate cause of the injuries alleged. (See, Felker v. Corning, Inc., 90 NY2d 219, 660 NYS2d 349, 682 N.E.2d 950; Misseritti v. Mark IV Constr. Co., supra) The decision does note that according to Gordon v. Eastern Railway, a plaintiff “need not demonstrate that the precise manner in which the accident hap-pened or the injuries occurred was foreseeable.” In Gordon, the foreseeability came about due to plaintiff’s unique injuries. Gordon fell from a ladder while using a sandblasting gun. When he hit the ground, the sandblast-ing gun did not shut off due to a defective trigger switch on the unit. Plaintiff’s face was abraded by the sand com-ing from the gun. The issue in Gordon was not whether it is foreseeable that a worker performing refurbishing work on a railroad car can sustain injuries from a fall off a ladder.

The foresee ability in Gordon addressed the narrow, fact specific, issue of whether it is necessary to establish that the precise nature of the injury, in Gordon the defective sandblasting gun continually shooting out sand into the plaintiff’s face, was foreseeable and, therefore, was a foreseeable event that called for the protective devices re-ferred to in section 240(1). To this, the Court of Appeals said a plaintiff does not need to show that the precise nature of the injury was foreseeable, only that a defendant’s actions can foreseeable lead to some type of injury. If the Court of Appeals follows its decision in Gordon on the issue of whether a plaintiff must establish that a defen-dant who engages in construction, excavation and or demolition work can foresee ably lead to injury, then it should conclude that the kind of foresee ability discussed in the Martin case is not necessary. The legislature has already deemed that construction, demolition and excavation work are hazardous activities which leads to injury and that the foresee ability of injuries to workmen is the very reason behind the enactment of the 1969 amend-ments to the Labor Law. see Allen v. Cloutier 44 NY2d 290.

Vasquez v. Urbahn Associates, Inc., 79 AD3d 493 (1st Dept. 12/9/10) Plaintiff was denied summary judgment on his 240(1) claim in this 3:2 decision. Plaintiff was injured when the permanent stairway he was on collapsed. The work plaintiff was performing involved demolition and removal of the entire floors of a building. The issue was whether or not liability under section 240(1) arises only where the work to be performed presents a foreseeable danger. Both the majority opinion and the dissenting opinion ex-plore both sides of this important issue. As is typical, both sides cite to the same cases in support of their dramat-ically opposite conclusions. The majority opinion starts its analysis with Gordon v. Eastern Railway, 82 NY2d 555, quoting “To establish a prima facie case (of a violation of Labor Law section 240(1)) plaintiff need not dem-onstrate that the precise manner in which the accident happened or the injuries occurred was foreseeable; it is suf-ficient that he demonstrate that the risk of some injury from defendant’s conduct was foreseeable.” The ma-jority then refers to the stairway as a permanent structure not normally expected to collapse “much like work per-formed at ground level not usually exposing the worker to gravity related hazards.” In conclusion, they state that, “Accordingly, only if a defendant has reason to foresee that the permanent structure is likely to collapse does it then have to comply with the mandates of Labor Law section 240(1) by providing the safety devices enumerated therein.” The dissenting opinion cites the same language from the Gordon case, but emphasizes the words diffe-rently. “Plaintiff need not demonstrate that the precise manner in which the accident happened where the injuries occurred was foreseeable; it is sufficient that he demonstrate that the risk of some injury from defendant’s con-duct was foreseeable.” They conclude that, “It is enough that given the inherently dangerous conditions of work-sites, it is foreseeable that an owner or contractor’s failure to provide safety devices to workers, as here, may create an injury.” The plain language of section 240(1) mandates that during the demolition of a structure, con-tractors and owners “shall furnish” safety devices, and by requiring the element of foreseeability, absolute liability provisions of the statute are voided. To require foreseeability is to defeat the purpose of the statute and to encour-age the defendant to take a head-in-the-sand approach to their statutory obligations.”



The second issue which apparently all judges were in agreement upon, is that the defendants violated 12 NYCRR 23-3.3(c), which requires “continuing inspection . . . by designated persons as the work progresses to detect any hazards to any person resulting from weakened or deteriorated floors or walls or from loosened material . . . where such hazards exist until protection has been provided by shoring, bracing or other effective means.” NOTE: The Court of Appeals has yet to rule on this issue of foreseeability. The dissenters believe that, in the absence of a Court of Appeals case directly on point, it would be a better approach not to read the requirement of foreseeability into the statute since it will encourage the “head-in-the-sand” approach to safety. The majority decision recognizes that this might be a sound public policy approach, but contends it is legally and factually untenable, referring to, of all cases, Palsgraf. It seems to be that the issue of foreseeability is required in a negligence cause of action since foreseeability defines the duty owed. Under section 240(1) of the Labor Law, foreseeability is not an element since the legislature has preempted the issue of foreseeability by mandating that there is a duty as a matter of law to provide proper protection. Undoubtedly, this case will be examined by the Court of Appeals and I will place my bets on the dissenting opinion coming out the winner. Timmons v. Barrett Paving Materials, Inc., 83 AD3d 1473, (4th Dept. 4/1/11) Plaintiff and his co-worker had tack-welded a catwalk to a building, then noticed the outside portion of the cat-walk was slightly higher than the other side. Plaintiff’s co-worker attempted to level the catwalk by pushing down on it with a manlift while plaintiff was positioned underneath it, prepared to weld a support gusset under-neath. The Court cited Narducci, 96 NY2d 259, for the proposition that “for section 240(1) to apply, a plaintiff must show more than simply that an object fell causing injury to a worker, a plaintiff must show that the object fell, while being hoisted or secured, because of the absence or inadequacy of the safety device of the kind enume-rated in the statutes.” The Court then interpreted the facts of the case to be essentially identical with Narducci, quoting that part of Narducci which states “since the [catwalk] was not an object being hoisted or secured, Labor Law section 240(1) does not apply.” The modification to the actual quote from Narducci was the substitution of the word “glass,” which was the object that fell in the Narducci case, for the word “catwalk,” which fell on plain-tiff. The Court also dismissed plaintiff’s 241(6) claim, stating 23-1.5 only sets forth general standards; 23-1.7 only applies to work which normally exposes the worker to falling materials or objects, which was not the case here; and 23-2.3 did not apply since it regulates only the final placing of structural steel members, which plaintiff was not engaged in. Section 200 was also dismissed, as there was no showing that defendant supervised or con-trolled the manner or method of the work, resulting in the plaintiff’s entire complaint being dismissed. NOTE: Two years earlier the Fourth Department decided Cantineri v. Carrere where a plank on a makeshift scaffold slipped from the ladder rung which was supporting it, causing the plank to strike plaintiff who was work-ing one floor below. That Court reversed the lower court’s grant of summary judgment to the defendant on the 240(1) claim, pointing out that “‘falling object’ liability under Labor Law section 240(1) is not limited to cases in which the falling object is in the process of being hoisted or secured. (Quattrocchi v. F.J. Sciame Constr. Corp., 11 NY3d 757, 758-759, 866 NYS2d 592, 896 N.E.2d 75).” The decision went on to continue with “the collapse of a scaffold establishes a prima facie case of liability under the statute ‘whenever the employee is in-jured as a result of the collapse, regardless of whether the employee was on or under the scaffold when it col-lapsed’ (Thompson v. St. Charles Condominiums, 303 AD2d 152, 154, 756 NYS2d 530, lv. dismissed 100 NY2d 556, 763, NYS2d 814, 759 N.E.2d 40).” Plaintiff, Cantineri, was not granted summary judgment since the Court found there was an issue of fact as to whether adequate safety devices were provided for plaintiff’s use and whether the plaintiff’s actions were the sole proximate cause of the accident. So, why can’t we substitute the word “plank” for the word “catwalk” and conclude that this case is identical to the Cantineri case? As the Court of Ap-peals expressed in the Quattrocchi case, falling object liability under 240(1) is not limited to cases in which the object was either in the process of being hoisted or secured. This was further clarified in the Court of Appeals decision of Outar v. City of New York, 5 NY3d 731, where the plaintiff was injured when an unsecured dolly fell







some 5 ½ feet. The dolly was not being used at the time of the accident, nor was it being lifted or lowered. The dolly had been used in his work and was stored on top of a bench wall, but not secured. Here, the catwalk which fell on Timmons did so because the tack welding did not adequately secure the structure to the building under the circumstances in which the co-worker used the manlift to force it into proper alignment. To equate this fact pat-tern to that of Narducci stretches the imagination. The key factor in Narducci was that the glass which broke from the window above where plaintiff was working was not a piece of glass which was raised or lowered, it was not being worked upon, it had not been worked upon in the past, and the Court specifically determined under the circumstances of Narducci that it would not have been expected to be secured, braced, supported, etc. In Tim-mons, the very object which fell, the catwalk, was actually being worked upon at the instant of the accident. The task which gave rise to the plaintiff injuries involved securing the catwalk to the building by welding a gusset to support the catwalk from underneath. Furthermore, as the Fourth Department pointed out in the Cantineri deci-sion, whenever an employee is injured as a result of the collapse of a scaffold, whether plaintiff is on or under-neath the scaffold, section 240(1) will apply. Isn’t the catwalk essentially a scaffold? If so, why wouldn’t Canti-neri v. Carrere apply, since “the collapse of a ---scaffold--- [catwalk] establishes a prima facie case of liability under the statute whenever the employee is injured as a result of the collapse, regardless of whether the employee was on or under the scaffold when it collapsed.” Cantineri, id at 1333. Quinteros v. P. DeBlasio, Inc., 82 AD3d 861, (2nd Dept. 3/8/11) Plaintiff, a brick mason, claimed entitlement to summary judgment, stating the scaffold he was on collapsed and caused him to fall 15-20 feet, and to then be hit on the head by scaffolding and building materials that were on the scaffold and roof. Defendant claimed that the accident occurred when plaintiff was riding in a bucket that had been raised by a machine and the bucket struck the scaffold, causing it to collapse, which, in turn, caused the building materials to fall on plaintiff. The Court granted plaintiff summary judgment on the 240(1) claim, stating that even if defendant’s version of the accident was accepted “the unsecured materials that fell on the plaintiff were materials that required securing for the purposes of the undertaking.” Outar v. City of NY, 5 NY3d 731. Moreover, defendants allowed plaintiff’s supervisor to use the machine and plaintiff and his supervisor had used the machine to transport workers and materials to the roof. It was reasonably foreseeable that the bucket could strike the scaffold, causing the scaffold and the unsecured materials to fall. The Court also granted summary judgment on 241(6) premised on 23-1.8(c) (1), failure to provide him with a safety helmet. Arnaud v. 140 Edgecomb, LLC, 83 AD3d 507, (1st Dept. 4/14/11) Plaintiff was stationed on the second floor of a building assisting co-workers who were lowering planks from the fourth floor to the second floor by use of a pulley and ropes. Plaintiff was injured when he leaned out the window to grab the wood and it suddenly struck him, causing multiple fractures. The Court held plaintiff was entitled to summary judgment since the object which caused his injury needed to be secured for the purposes of the under-taking. Ourtar v. NYC, 5 NY3d 731. Section 240(1) creates liability where safety equipment is not “placed and operated so as to the proper protection.” Harris v. City of New York, 83 AD3d 104 (1st Dept. 4/5/11) Plaintiff was injured while in the process of assisting in the lifting of a one-ton, 10 x 20 foot section of a bridge road surface. The process he and his crew were directed to perform was to first cut the slab out of the bridge deck and then attach a choker chain to each side of the slab, attaching it to a crane that would lift it from the bridge sur-face. While in the process of lifting one of the slabs, one side did not come free from the bridge, although it had been cut. In order to pry it loose, plaintiff was directed to wedge a 4 x 4 piece of timber underneath the slab and to stand on one end of it while the crane operator lowered the slab, anticipating that the weight of the slab on the freed side would cause the wedged side to break free. The slab was lowered too quickly, causing the 4 x 4 to shat-ter, resulting in plaintiff’s fall and injuries. The Court reversed summary judgment granting defendant’s motion to







dismiss the 240(1) and 241(6) claim and, in turn, granted plaintiff’s summary judgment on both causes of action. The Court drew a comparison with Runner v. New York Stock Exchange, 13 NY3d 603, noting the similarities of a heavy object falling a short distance and resulting in harm to a worker directly caused by the forces of gravi-ty. The Court determined the defendant was liable for failing to give an adequate device precisely of the sort enu-merated in the statute since it was not placed and operated so as to give proper protection to the plaintiff. The Court also reversed the lower Court’s denial of plaintiff’s motion to amend the Bill of Particulars to allege viola-tions of Rule 23 and, based upon the proposed Industrial Code violations to be alleged, granted plaintiff’s motion for summary judgment on his 241(6) claim, stating there was no issue of fact as to the violation of these provi-sions. Since plaintiff’s foreman submitted an affidavit indicating that he directed the plaintiff to stand on the 4 x 4, the Court obviously concluded there was no comparative negligence on plaintiff’s part, paving the way for judg-ment on liability on the 241(6) claim. Pritchard v. Tully Constr. Co., Inc., 82 AD3d 730, (2nd Dept. 3/1/11) Plaintiff was struck by a motor weighing over 300 pounds when two co-workers were attempting to lift it into position by hand as the plaintiff was underneath it in order to bolt the bottom of the motor to the top of a 20 foot high pipe. The Court granted plaintiff summary judgment on the 240(1) claim, holding that the motor which fell “required securing for the purposes of the undertaking being performed.” Outar v. City of New York, 5 NY3d 731. Steinman v. Morton International, Inc.: F.2d US District Court, Western District of NY The plaintiff was injured when the brick structure he was in the process of demolishing collapsed. Plaintiff’s em-ployer was hired to remove a deteriorated coal hopper and replace it with a new one. One end of the coal hopper, which was 20 feet wide, 100 feet long and shaped like a half pipe, had one end configured as a brick wall inte-grated into the entire brick structure. Plaintiff and his co-workers were using jack hammers to demolish this end cap. All parties moved for summary judgment. The Court granted defendant’s motion to dismiss plaintiff’s 240(1) claim after determining that the claim required analysis under 240 as a falling object case and not to be considered as an injury caused by exposing the plaintiff to the dangers of working at an elevation. “The fact that an injured plaintiff may have been working at an elevation when the object fell is of no moment in a ‘falling ob-ject case’ because a different type of hazard is involved.” However, the Court determined that there was no eleva-tion differential requiring a safety device where the wall that collapsed upon the worker was at the same level as the space he was working at, citing Misseritti, 86NY2d 241. The Court denied defendant’s summary judgment on plaintiff’s 241(6) claim premised upon 12 NYCRR 23-3.3(c), which requires periodic inspections during de-molition operations as the work progresses in order to detect hazards resulting from weakening floors or walls. The Court also denied summary judgment to defendant dismissing the claim premised upon 23-1.7(a)(1), which requires overhead protection when a person is required to work or pass in an area exposed to falling material or objects. That part of the 241(6) claim premised upon 12 NYCRR 23-3.3(b) (3), which requires guarding chimneys and other parts of buildings which are at risk for fall or collapse or weakened by wind pressure or vibration, was dismissed since this was not applicable to the facts, as the wall fell not due to wind vibration, but due to the demo-lition process itself. On the common law negligence and Labor Law 200 claim, the Court noted the distinction under New York law between claims premised upon defects and dangers rising out of the method and materials of the work, as opposed to workers injured due to conditions of the premises. When a plaintiff proceeds on the for-mer claim he must demonstrate the defendant had direction and or control over the method or manner of plain-tiff’s work. Such was not the case here, the plaintiff demonstrated the coal hopper was old and deteriorated to the knowledge of the defendant and that questions of fact existed as to whether defendant should have taken steps to address dangers of collapse when the concrete half pipe had been removed. NOTE: This case presents a detailed analysis of the Court applying the appropriate principles of the Labor Law to the specific facts of the case.




B. Injuries Occasioned by Extraordinary Elevation-Related Hazards vs. Typical Hazards on any Construction Site

Keane v. Chelsea Piers, L.P., 71 AD3d 593 (1st Dept. 03/30/10) Plaintiff was working under a pier on a floating stage on which he was kneeling when the action of waves caused the platform to suddenly drop, resulting in a board he was sawing falling on him. The Court held that the injuries caused by the board falling came within the scope of section 240(1) because “the swing in elevation of the stage due to tides and waves was understood,” requiring protective devices to prevent the board from falling. However, the Court made a distinction disallowing recovery for injuries caused “by the wave lifting him up and knocking him against the bottom of the pier” he was working on. C. Falls from Ladders 1. Inadequate Ladders Bruce v. 182 Main St. Realty Corp., 83 AD3d 433 (1st Dept. 4/7/11) Plaintiff was injured when he fell from a ten foot fiber glass A-frame ladder as he was cutting overhead pipes for removal. The work took place in an auto mechanic’s garage. The ladder was positioned between two motors ly-ing on the floor on pallets. One set of the legs were placed on concrete with the other set on top of the pallet due to the position of the motors and the pipes. Plaintiff testified that the ladder was wobbly and shaky when he was using it; it was not secured; and he was not sure what caused him to lose his balance and fall since he was focused on how to avoid landing on top of the car engines. Defendant’s motion for summary judgment seeking to dismiss the 240(1) and 241(6) causes of action was denied upon the Court’s review of the conflicting testimony of the witnesses. As to defendant’s contention that there was no evidence the ladder was unstable, the Court pointed to plaintiff’s version that the ladder shook and wobbled and that it was not secured, as well as being partially on the cement floor and partially on the pallet, as facts which a jury could conclude created an unstable condition and that additional safety steps were needed to secure the ladder. Ferris v. Benbow Chemical Packaging Inc., 74 AD3d 1831 (4th Dept. 06/11/10) The Court affirmed summary judgment to the plaintiff for injuries he sustained when the A-frame ladder he was on began to slide until it hit a seam in the concrete floor, causing an abrupt stop which, in turn, broke the rung of the ladder plaintiff was on, causing him to fall. The Court held this presented a prima facie case and the fact that the plaintiff was using the A-frame ladder in a closed position leaned up against the tank he was working on could not be held to be the sole cause of the accident and it was, therefore, simply comparative negligence, which is not a defense. 2. Improper Placement or Unsecured Ladders D. Falls Involving Trucks and Other Vehicles E. Permanent Stairways and Other Permanent Structures Reyes v. Magnetic Constr., Inc., 83 AD3d 512, (1st Dept. 4/14/11)






Plaintiff, a brick layer, was injured when he tripped and fell forward onto the second level floor as he was ascend-ing a temporary staircase from the first floor to the second floor of the hotel where he was working. The top tread of the stairs was wedged under the concrete slab that formed the second floor, giving rise to a 16-19 inch step up to the second floor platform. Without much discussion, the Court dismissed plaintiff’s 240(1) claim, stating his injuries “did not occur as the result of an elevation-related or gravity-related risk and that his trip and fall resulted from a hazard that was ‘wholly unrelated to the risk which brought about the need for the stairs in the first in-stance.’” Nieves, 93 NY2d 914. Moreover, plaintiff’s fall took place at the same level as plaintiff’s worksite. NOTE: Here the plaintiff did not fall down or off the stairs but tripped, forward falling onto the second story floor. The logic behind this decision is clearer if plaintiff’s fall is viewed as being no different than any individual who trips and stumbles forward after a misstep from a top step. Berrios v. 735 Ave. of the Ams., LLC, 82 AD3d 552 (1st Dept. 3/17/11) Plaintiff was injured when the I-beam, ribs, and plywood that were to become the second floor did not adequately support him, since the I-beam flipped causing him to fall. This, according to the Court, spelled out a prima facie case under section 240(1). Additionally, there were no safety rails or netting on the floor. Although the I-beam was to become part of the permanent structure of the building, he was nonetheless using it conceptually and func-tionally as the equivalent of a scaffold. Ramirez v. Shoats, 76 AD3d 851 (1st Dept. 9/14/10) Plaintiff was injured when a piece of corrugated metal covering an unfinished landing in a stairway slipped, caus-ing him to fall from the second floor to the basement level of a building under construction. In a 3:2 decision, the majority found a question of fact existed as to whether the unfinished landing was the sole means of descent from the second floor to the first floor, in which case section 240(1) would have been violated. There was also a ques-tion of fact, according to the majority, as to whether the plaintiff fell more than one story, thus allowing a jury to determine that section 241-a would serve as a basis for liability. The dissenting opinion felt that section 240(1) could not apply because the stairway was a “permanent staircase not designed as a safety device to afford protec-tion from an elevation-related risk and therefore outside the coverage of the statute,” citing Ryan v. Morse Diesel, 98 AD2d 615, Griffin v. NYC, 16 AD3d 202, Norton v. Park Plaza, 263 AD2d 531, Williams v. City of Albany, 245 AD2d 916, Dombrowski v. Schwartz, 217 AD2d 914. They also believed that section 241-a did not apply because the plaintiff was not working in the stairwell at the time of his accident, as they believe was required by section 241-a. Vasquez v. Urbahn Associates, Inc., 79 AD3d 493 (1st Dept. 12/9/10) Plaintiff was denied summary judgment on his 240(1) claim in this 3:2 decision. Plaintiff was injured when the permanent stairway he was on collapsed. The work plaintiff was performing involved demolition and removal of the entire floors of a building. The issue was whether or not liability under section 240(1) arises only where the work to be performed presents a foreseeable danger. Both the majority opinion and the dissenting opinion ex-plored both sides of this important issue. As is typical, both sides cite to the same cases in support of their dra-matically opposite conclusions. The majority opinion starts its analysis with Gordon v. Eastern Railway, 82 NY2d 555, quoting, “To establish a prima facie case (of a violation of Labor Law section 240(1)) plaintiff need not demonstrate that the precise manner in which the accident happened or the injuries occurred was foreseeable; it is sufficient that he demonstrate that the risk of some injury from defendant’s conduct was foreseeable. The majority then refers to the stairway as a permanent structure not normally expected to collapse “much like work performed at ground level not usually exposing the worker to gravity related hazards.” In conclusion, they state, “Accordingly, only if a defendant has reason to foresee that the permanent structure is likely to collapse does it then have to comply with the mandates of Labor Law section 240(1) by providing the safety devices enumerated






therein.” The dissenting opinion cites the same language from the Gordon case, but emphasizes the words diffe-rently. “Plaintiff need not demonstrate that the precise manner in which the accident happened where the injuries occurred was foreseeable; it is sufficient that he demonstrate that the risk of some injury from defendant’s con-duct was foreseeable.” They conclude that “It is enough that given the inherently dangerous conditions of work-sites, it is foreseeable that an owner or contractor’s failure to provide safety devices to workers, as here, may create an injury.” The plain language of section 240(1) mandates that during the demolition of a structure, con-tractors and owners “shall furnish” safety devices and by requiring the element of foreseeability absolute liability provisions of the statute are voided. To require foreseeability is to defeat the purpose of the statute and to encour-age the defendant to take a head-in-the-sand approach to their statutory obligations.” The second issue, which apparently all judges were in agreement on, is that the defendants violated 12 NYCRR 23-3.3(c), which requires continuing inspections . . . by designated persons as the work progresses to detect any hazards to any person resulting from weakened or deteriorated floors or walls or from loosened material . . . where such hazards exist until protection has been provided by shoring, bracing or other effective means.” NOTE: The Court of Appeals has yet to rule on this issue of foreseeability. The dissenters believe that in the absence of a Court of Appeals case directly on point, it would be a better approach not to read the requirement of foreseeability into the statute since it will encourage the “head-in-the-sand” approach to safety. The majority decision recognizes that this might be a sound public policy approach, but contends it is legally and factually untenable, referring to, of all cases, Palsgraf. It seems to be that the issue of foreseeability is required in a negligence cause of action since foreseeability defines the duty owed. Under section 240(1) of the Labor Law, foreseeability is not an element since the legislature has preempted the issue of foreseeability by mandating that there is a duty as a matter of law to provide proper protection. Undoubtedly, this case will be examined by the Court of Appeals and I will place my bet on the dissenting opinion coming out the winner.

F. Elevators II. WHAT TYPE OF WORK DOES §240 COVER? Pope v. Safety and Quality Plus, Inc.: AD3d (2nd Dept. 7/19/11) Plaintiff was a handyman working for a commercial tenant that occupied a three story building for which the de-fendants were the property managers. The defendant contracted a roofing company to investigate a reported leak in the roof. Defendants had previously blocked the access to the roof from the third floor of the building, so plaintiff’s employer directed him to escort the roofers to the roof by using plaintiff’s apartment, which was imme-diately next door. Plaintiff and the roofers exited through a window onto the roof and when returning plaintiff fell off the roof. The Court noted that, “the reach of section 240(1) is not limited to work performed on actual con-struction sites, the task in which an injured employee was engaged must have been performed during the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.” Martinez v. NYC, 93 NY2d 322. Here, no roofing work had begun and the work was merely investigatory at that stage. Pirog v. 5433 Preston Ct., LLC, 78 AD3d 676 (2nd Dept. 11/3/10) The defendant was granted summary judgment dismissing plaintiff’s complaint for injuries he sustained on defendant’s property. Plaintiff’s employer had leased property from the defendant in order to store construction-related materials. Plaintiff was injured while stacking pipes at this location. Since plaintiff was not engaged in construction work within the meaning of section 240(1), the defendant was entitled to the dismissal. Barnes v. City of New York, 77 AD3d 481 (1st Dept. 10/14/10)





Plaintiff’s complaint against the defendant was dismissed since the work plaintiff was performing - disconnecting power cables from a third rail to allow a signal construction project to proceed safely - was not construction work and was a separate phase of work distinct from the project itself and therefore not covered under 240(1) of the Labor Law. A. Demolition and Salvage Work Sung Kyu-To v. Triangle Equities, LLC, 84 AD3d 1058, (2nd Dept. 5/17/11) Plaintiff, a demolition laborer, was gathering his tools on the first floor of a building being demolished. As he was looking down, he felt something drop onto his head and then a heavier second impact occurred, knocking him unconscious. When he regained consciousness, he was buried in a pile of broken bricks, dried cement, pieces of wood and tangled up electrical wires. At trial, the proof explained that, as of the day of the accident, portions of the multi-story building’s floors and roof had been removed. Workers were throwing demolition debris out to the street below and through holes in the wall where the windows had been located. At the close of the proof, defen-dant was granted judgment as a matter of law pursuant to CPLR 4401. On appeal, the Court concluded that the jury could have reasonably concluded plaintiff was injured by material that was being removed during the demoli-tion. Additionally, the jury could have found that the objects which fell constituted “a load that required securing for the purposes of the undertaking at the time it fell.” Narducci, 96 NY2d 259. Also, “given the nature and pur-pose of the work that was being performed at the time of his injury, such material presented a significant risk of injury such that the defendants were obligated under Labor Law section 240(1) to use appropriate safety devices to secure the material that fell.” Quinteros, 82 AD3d 861. NOTE: One of the issues discussed by the Court was that the nature and purpose of the work presented a signifi-cant risk of injury and therefore section 240(1) obligates owners and contractors to use appropriate safety devices in order to secure materials from falling. But who determines whether the nature and purpose of the work presents a significant risk of injury, the court or a jury? If a jury is to make this decision based upon the proof presented at trial, then plaintiffs essentially must demonstrate foreseeability before section 240(1) will even apply. This, however, would open the door to contractors and owners attempting to introduce proof as to the nature of custom and practice as a way to demonstrate that the risk of injury was not foreseeable. If this were allowed, owners and contractors would, in essence, be permitted to determine the circumstances of when section 240(1) will apply, defeating the purpose of the legislation, which was to require that when performing excavation, demo-lition, construction, alteration, repair, etc., the various safety devices must be provided. The issue of foreseeabil-ity was also broached in the First Department case of Vasquez v. Urbahn, 79 AD3d 493 (2010). If the Court is to determine, as a matter of law, whether the circumstances presented by the work created a significant risk of injury as a threshold requirement for applying section 240(1), is the decision then to be based upon the judges’ personal views or based on certain factual findings by a jury? If the latter situation applies, then carefully crafted questions will have to be given to the jury, i.e., was the material which struck and injured the plaintiff intentional-ly thrown into the opening of the floor as part of the work plan? If yes, then a line of cases of Roberts v. General Electric Co., 97 NY2d 733, will apply and more than likely result in a dismissal of the 240(1) claim as a matter of law. If the material found its way into the opening of the floor as an unintended consequence of the work plan, on what basis will the Court determine if and when it reaches the level of posing a significant risk of injury, requiring 240(1) to apply? In any event, a requirement of demonstrating that the circumstances of the work give rise to a significant risk of injury before 240(1) can apply will, by necessity, substitute the will of the legislature with that of mere mortals, whether they sit on the bench or in a jury box. Ortega v. Everest Realty, LLC, 84 AD3d 542 (1st Dept. 5/12/11)






Plaintiff was injured when he was attempting to cut through a 12 foot metal wall of a shed with a gas-powered demolition saw. As he was attempting to do so, he complained to his supervisor that as he was cutting, the wall was shaking and going to one side. The supervisor directed him to continue the work, until the wall fell onto plaintiff and caused him to cut his leg with the saw. Plaintiff’s 200 and common law negligence claims were dismissed against the general contractor, since the accident arose out of the method and manner of plaintiff’s own work. However, the Court reinstated plaintiff’s 241(6) claim premised upon 23-1.12(c)(1), which requires mova-ble self-adjusting guards to extend below the base plate which will completely cover the saw blade to a depth of the teeth when the blade is removed from the cup. Plaintiff’s testimony at his deposition that the saw had very little cover on the bottom did not resolve the issue of whether it was in compliance with the specific regulation warranting a finding as a matter of law that the regulation was complied with. Additionally, 23-3.3(b)(3), which requires walls, chimneys and other parts of any structure not to be left in such a condition that it may fall, collapse or be weakened by wind pressure or vibration, and 23-3.3(c), which requires inspections to be conducted as the work progresses to determine whether hazard was from weakened or deteriorated floors or walls or from loosened material, do apply to the plaintiff’s version of the accident. The majority determined there was an issue of fact as to whether the shaking of the wall, before it fell, was caused by the unguarded weakened wall or if it was due to the plaintiff’s very act of cutting it down, in which case 23-3.3(b) and (c) would not apply. The dissenting opi-nion argued that the facts clearly demonstrate that the wall fell as part of plaintiff’s work of cutting it down and, therefore, neither section applied. B. Repair Work vs. Routine Maintenance or Manufacturing Montalvo v. New York & Presbyt. Hosp., 82 AD3d 580 (1st Dept. 3/22/11) Plaintiff was injured when he slipped on a grate that was wet from water which had overflowed the pit it was cov-ering, causing plaintiff to fall on it which, in turn, caused it to cave in, allowing plaintiff to fall into scalding water in the pit. Plaintiff was attempting to replace a float and rod component in the condensate pump that was part of the HVAC system. This was located in the pit which was six feet deep. Defendants claimed plaintiff’s work amounted to nothing more than maintenance work, as he was replacing components which were subject to normal wear and tear. Plaintiff argued that the components are not routinely replaced due to wear and tear and that he had only done so four or five times in twenty-five years. The Court, however, found that it could not determine whether it was maintenance or repair work since there was nothing in the record to establish the cause of the com-ponent’s breaking or what work was involved in replacing it. The 241(6) claim was dismissed, since that only applies to construction, demolition or excavation work, none of which plaintiff was performing. Selak v. Clover Mgt., Inc., 83 AD3d 1585 (4th Dept. 4/29/11) Plaintiff’s employer was engaged to change the heating and ventilating and air conditioning system from the heat-ing mode to the cooling mode. Plaintiff was on the premises on the day of the injury to replace the filters in the system. Because defendant adequately demonstrated that the filters were changed two to four times per year as a result of normal wear and tear, the work plaintiff was performing was routine maintenance and the Labor Law does not apply. The Court did allow the section 200 claim since the ladder plaintiff was using, which led to an access hole in the roof, was only 2 ½ feet from the base of the ladder. When plaintiff fell, he also fell over the railing and onto the stairs below. The Court held there did exist a question of fact as to whether this amounted to a dangerous or defective condition on the premises which was known or should have been known to defendant. Fox v. H & M Hennes and Mauritz, L.P., 83 AD3d 889 (2nd Dept. 4/19/11) Plaintiff was an employee of Garrity Electric, Inc., as a mechanic performing electrical contracting work. Garrity was hired to replace bulbs and ballasts/transformers in 78 overhead light fixtures in a retail store. Garrity had





done business with the retail establishment for several years performing electrical work for which it received $30,000 -$50,000 per year. To perform this project, Garrity furnished seven or eight workers led by a foreman. This work was not a matter of simply replacing a transformer, which was the task plaintiff was performing at the moment of his injury. Considering the overall scope of the entire project, the Court held it was not routine main-tenance, but a repair project. The fact that plaintiff was the sole witness to the accident does not preclude sum-mary judgment. Kostyo v. Schmitt, 82 AD3d 1575 (4th Dept. 3/25/11) Plaintiff fell from a porch roof while fixing and “winterizing” a window over the porch which plaintiff claimed was no longer operable and required it to be nailed together since the window frame had fallen apart. The window was then to be covered with plastic sheeting. The Court reversed dismissal of plaintiff’s 240(1) claim upon the finding that the difference between routine maintenance and repair work is generally a fact driven issue. Based upon the record, plaintiff did raise an issue of fact as to the characterization of his work. The jury could deter-mine on the record whether he was performing repair work. Nowakowski v. Douglas Elliman Realty, 78 AD3d 1033 (2nd Dept. 11/23/10) Plaintiff, a building porter, was injured when he fell from a ladder while removing a light fixture which needed to be repaired. The defense argued that this was not covered by section 240(1) since the activity was merely routine maintenance, calling for the replacement of one of the light fixture’s parts. The Court disagreed upon evidence that while the initial activity of plaintiff started out as routine maintenance, i.e., the expectation that only a light bulb needed to be changed, the plaintiff found out that was not the problem with the fixture and that it needed to be removed in order to be repaired. “This court has previously held that the activity of removing a light fixture so that it can be repaired or replaced is deemed a repair and, thus, falls within the purview of Labor Law section 240(1).” Eisenstein, 43 AD3d 987; Fitzpatrick, 25 AD3d 755; Piccione, 258 AD2d 357; Kook, 234 AD2d 906; Purdie, 229 AD2d 523.

C. Alteration Work Randall v. Time Warner Cable Inc., 81 AD3d 1149 (3rd Dept. 2/17/11) The Court granted summary judgment to the plaintiff on his 240(1) claim for injuries he sustained when the ladder he was descending, which was leaning against the hard wire line running from a utility pole to the house, slipped resulting in his fall. Defendant argued that the Court should focus on the immediate task plaintiff was performing - climbing a ladder to unscrew a filter and replace it with a new filter on the cable TV line. This, defendant argued, was not an alteration activity for purposes of section 240(1). The Court refused, pointing out that the plaintiff was sent to the site to install new equipment, wiring, fittings and ground cables inside and outside of the home in order to upgrade the customer’s service. When most of the work was completed, plaintiff’s supervisor checked to see if the service was functional and found that it was not, and directed plaintiff to replace the filter. The Court accepted plaintiff’s argument that the analysis should not “isolate the moment of injury and ignore the general context of the work.” The task plaintiff was performing was part of an interconnected series of steps all documented by a single work order and all necessary to complete the upgrade. The upgrade was not functional and the work was not complete until the final step – replacing the cable filter – was accomplished.” The work of replacing the filter was an integral part of the overall project.







D. Painting

E. Cleaning Work F. Pointing III. WORK ASSOCIATED WITH, OR AN INTEGRAL PART OF, A COVERED ACTIVITY Randall v. Time Warner Cable Inc., 81 AD3d 1149 (3rd Dept. 2/17/11) The Court granted summary judgment to the plaintiff on his 240(1) claim for injuries he sustained when the ladder he was descending, which was leaning against the hard wire line running from a utility pole to the house, slipped resulting in his fall. Defendant argued the Court should focus on the immediate task plaintiff was performing - climbing a ladder to unscrew a filter and replace it with a new filter on the cable TV line. This, defendant argued, was not an alteration activity for purposes of section 240(1). The Court refused, pointing out that the plaintiff was sent to the site to install new equipment, wiring, fittings and ground cables inside and outside of the home in order to upgrade the customer’s service. When most of the work was completed, plaintiff’s supervisor checked to see if the service was functional and found that it was not, and directed plaintiff to replace the filter. The Court accepted plaintiff’s argument that the analysis should not “isolate the moment of injury and ignore the general context of the work.” The task plaintiff was performing was part of an interconnected series of steps all documented by a single work order and all necessary to complete the upgrade. The upgrade was not functional and the work was not complete until the final step – replacing the cable filter – was accomplished.” The work of replacing the filter was an integral part of the overall project. Gowans v. Otis Marshall Farms, Inc.: AD3d (4th Dept. 6/17/11)

Plaintiff and his brother were hired to replace some support beams in a barn owned by defendant. Plaintiff’s brother, although instructed to cover a hay hole, failed to do so, resulting in plaintiff falling through it while he was attempting to climb to the upper level of the barn to speak with his brother. The Court reversed the dismissal of plaintiff’s Labor Law claim, stating, “it is not necessary that an employee be actually working on his [or her] assigned duties at the time of the injury” Reeves, 139 AD2d 935. The relevant inquiry here is not whether the plaintiff picked up a tool to effect a repair, but whether he had been hired to take any part in the repair work” Campisi, 299 AD2d 4. “It is no defense to [the plaintiff’s] recovery under [the] Labor Law . . . that it was not necessary for the plaintiff to be [at the location where his brother was taking the measurements at the time of the accident in order to speak to his [brother].” Crossett v. Wing Farm, Inc., 79 AD3d 1334 (3rd Dept. 12/9/10) Plaintiff was injured while working for the St. Lawrence County Highway Dept. on a tree removal project on property owned by defendant. Defendant granted permission to the County and its employees to remove the tree. Defendants argued first that they were entitled to the 1-2 family home exemption which the Court denied on the basis that the 2 family home located on the premises was rented to one tenant and the other apartment was occupied by the caretaker of the property. The Court, however, did determined that the tree removal work was not covered under section 240 or 241(6) since it was not a structure for purposes of the Labor Law. Plaintiff argued the tree was being removed because the adjacent property owner was constructing a facility for a beauty parlor





and defendant’s tree was blocking the view to the entrance. The Court found this insufficient to establish that the plaintiff, his co-workers or the County were entities engaged in construction or that the tree removal was an integral part of the overall construction project. Lipsker v. 650 Crown Equities, LLC, 81 AD3d 789 (2nd Dept. 2/15/11) Plaintiff, a real estate agent, fell from a ladder while assisting his employer in hanging a sign in their rented offic-es. The Court noted that he was paid on commission and that he was acting as a volunteer when the accident oc-curred, therefore, Labor Law 240 and 241 did not provide protection to him. IV. BUILDING OR STRUCTURE V. THE CLASS OF PEOPLE COVERED UNDER §240 Simoes v. City of N.Y., 81 AD3d 514 (1st Dept. 2/17/11)

Plaintiff, a flagman whose duty was to direct traffic so as to allow workers to position manlifts, decided to lend a helping hand to co-workers when one of the lifts malfunctioned as they were attempting to push it up over a curb. He climbed into the lift bucket and tried to operate the motorized controls as another lift was trying to push the disabled one up over the curb. The manlift fell over with the plaintiff in the basket, causing him injury. The Court denied plaintiff’s 240(1) claim, stating that plaintiff’s duties were confined to directing traffic. When the lift mal-functioned and could not traverse a curb, plaintiff left his duties, climbed up into the aerial basket and attempted to operate it. Under these circumstances, plaintiff was not covered by the statute since his duties as a flagman did not entail an elevation-related risk. NOTE: In this case it was not enough to demonstrate that plaintiff was employed as a worker on a construction project and was injured due to the failure to provide adequate safety devices to prevent his fall. Courts, especially in the First and Second Departments, are very specific in requiring that plaintiffs establish that their employment duties required him/her to be exposed to an elevation differential before section 240(1) will apply. This is an often overlooked factor both by plaintiffs, who often take for granted that plaintiff’s work will, of course, expose him/her to an elevation differential, and by defendants, who often fail to raise this preclusion to recovery under 240(1). Rodriguez v. 3251 Third Ave. LLC, 80 AD3d 434 (1st Dept. 1/4/11) The Court granted plaintiff’s summary judgment upon his testimony that he fell from a ladder while preparing to paint defendant’s building. Defendant submitted an unsworn statement by plaintiff’s employer to the effect that the employer did not know plaintiff and plaintiff did not work for him. The Court rejected this hearsay statement, pointing out it was also unaccompanied by any other evidence tending to show plaintiff was not authorized to be on the worksite and, therefore, it did not raise a legitimate issue of fact as to plaintiff’s status. Martinez v. City of New York, 73 AD3d 993 (2d Dept. 05/18/10) Plaintiff’s section 240 and 241(6) claims were dismissed upon the finding that he was not employed in the course of construction, excavation, demolition, etc. He was a maintenance man for a company hired by one of the defendants to operate, monitor and maintain a gas recovery facility at the Fresh Kills landfill in Staten Island. Plaintiff was asked to shut off one of the gas mains so that one of the defendants could begin its work renovating the facility. The Court determined that since none of the covered activities had yet to begin, plaintiff’s task was






not part of an already ongoing project. Moreover, he was not employed to perform construction, excavation, demolition, etc. VI. WHO IS RESPONSIBLE UNDER §240 –

CONTRACTORS AND OWNERS AND THEIR AGENTS Guclu v. 900 Eighth Avenue Condominium, LLC, 81 AD3d 592 (2nd Dept. 2/1/11) After a jury trial resulting in favor of the defendant tenants and against the plaintiff, the Court affirmed the jury’s determination, concluding that there was ample evidence in the record to demonstrate the defendant tenant did not hire plaintiff’s employer and had no ability to control the activity which brought about the injury, a necessary element in order to establish defendant as being an agent of the owner or acting as an owner for purposes of the Labor Law. Rodriguez v. JMB Architecture, LLC, 82 AD3d 949 (2nd Dept. 3/15/11) Plaintiff alleged a Labor Law 200 and 241(6) claim against the defendant for an injury he sustained when some-thing hit his eye. Defendant, JMB, alleged that it was a construction manager and pointed to its contract, which specifically stated it shall not be responsible for construction means, methods, techniques or for safety precau-tions. The Court dismissed the complaint against JMB on the basis that plaintiff failed to prove JMB was an agent of the owner who had supervisory control and authority over the work being performed. Grochowski v. Ben Rubins, LLC, 81 AD3d 589 (2nd Dept. 2/1/11) The Court reversed the lower court’s denial of summary judgment to one of the subcontractors on the project. Under Labor Law sections 240 and 241, “there must be a showing that the subcontractor had the authority to su-pervise and control the work giving rise to these duties [those which gave rise to the accident].” “The determina-tive factor on the issue of control is not whether a subcontractor furnishes equipment, but whether it has control of the work being done and the authority to insist that proper safety practices be followed.” Burke v. Hilton Resorts Corp.: AD3d 419 (1st Dept. 6/2/11) The Court granted plaintiff summary judgment for injuries sustained when he fell 15 feet through an unprotected opening in the floor of a construction site. Although plaintiff did not take an appeal from the lower Court’s denial of summary judgment against defendant, Century, a search of the records showed Century had contractual super-visory authority over plaintiff’s employer and was therefore a statutory agent over the general contractor, Tish-man. Herrel v. West, 82 AD3d 933, (2nd Dept. 3/15/11) Plaintiff, a roofer, was injured when he slipped off the roof of a single family home owned by Christine West. Plaintiff sued West’s husband and the husband’s building and remodeling corporation under sections 240(1), 241(6) and 200. The Court dismissed the claim against the corporation based on the lack of any evidence demon-strating that it either supervised plaintiff or controlled his work or had the right to do so. Plaintiff’s employer en-tered into an agreement to perform the work directly with defendant’s husband in his individual capacity and not through the corporation. Therefore, the corporation was not an agent of the owner. Nascimento v. Bridgehampton Constr. Corp.: AD3d 189 (1st Dept. 6/2/11)








Plaintiff alleged 240(1) and 241(6) claims for injuries sustained when he fell 14 feet from a ladder to the basement floor in a house under construction. Defendant failed to create an issue of fact by producing evidence from an eyewitness claiming he saw the plaintiff fall from the rafters, but did not see any ladders in the area. Either ver-sion results in a violation of 240(1). However, the Court found an issue of fact as to whether or not defendant, Bayview Building, had the authority to supervise and control the work giving rise to plaintiff’s injuries. Defen-dant, Bridgehampton, was the general contractor who subcontracted with Bayview, who in turn subcontracted with R&L Carpentry, who subcontracted with plaintiff’s employer to do the framing. Bayview’s position is that it never had the authority to coordinate or supervise the work of plaintiff. The Court noted the issue is not whether they did, but whether it had the authority from the owner through the general contractor. Here, the record merely contains a written proposal from Bayview detailing the work it would perform and its price and Bayview’s written contract with R&L Carpentry, in which R&L agreed to provide all labor, tools, equipment, supervision and other items necessary to execute the framing work. There exists a question of fact as to whether Bayview undertook responsibility for the framing work and then subcontracted the work and the authority to supervise the work, thus precluding summary judgment in favor of the defendant dismissing the claim and/or in favor of the plaintiff against Bayview. Several other minor issues were discussed, including the rule that summary judgment motions may be delayed for further discovery where evidence necessary to oppose the motion is unavailable, but determi-nation of summary judgment cannot be avoided merely by a claim that there is need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence.” The existence of two scena-rios of how the accident occurred would preclude judgment under 241(6), since the Industrial Code rule must match the facts giving rise to the accident. Barrios v. City of New York, 75 AD3d 517 (07/13/10) Defendant was denied summary judgment upon its argument that it was not a general contractor or an agent of the owner and was acting solely as a “construction manager.” “The critical question is whether the construction manager was delegated supervisory control and authority over the work being done when the plaintiff was injured.” In this regard, defendant’s contract required it to inspect the site, report safety issues to the resident engineer, develop a quality control plan, meet with contractors and discuss their individually developed safety plans and, in fact, defendant did hire safety officers who had the authority to bring safety concerns to the attention of the individual contractor’s foreman. Kilmetis v. Creative Pool & Spa, Inc., 74 AD3d 1289 (2nd Dept. 06/29/10) Plaintiff fell from a scaffold while placing siding on dormers located on the roof of a garage. Suit was brought against defendant, Creative Pool & Spa, Inc., upon an allegation that it was a general contractor and was listed as such on the building permit. The Court dismissed the claim on the basis that the evidence indicated the defendant was not hired to perform work on the garage, did not have the authority to supervise the work performed on the garage, and that the work permit alone was insufficient to raise a triable issue of fact. Temperino v. DRA, Inc., 75 AD3d 543 (2nd Dept. 07/13/10) The Court dismissed all Labor Law claims against DRA since there was no showing that it was a general contractor on this project, nor was there any proof that it had been given the authority to supervise and control the work giving rise to plaintiff’s injuries. VII. PROCEDURAL ISSUES Mendoza v. Highpoint Assoc., IX, LLC, 83 AD3d 1, (1st Dept. 3/8/11)






Three separate opinions written in this case cover multiple issues. The majority opinion covered a threshold issue of whether a defendant who failed to comply with discovery demands, which ultimately led to a self-executing preclusion order from offering proof at the time of trial, also precludes defendant from making a motion seeking summary judgment on liability. The majority opinion drew a distinction between offering affirmative proof as opposed to relying upon plaintiff’s proof to establish plaintiff’s failure to make out a prima facie case, therefore entitling defendant to summary judgment. The Court did, however, preclude the consideration on defendant’s motion of any affirmative proof since that would in essence undermine the purpose and intention of the preclusion order. Judge Acosta, writing an opinion concurring in part and dissenting in part, disagreed with the resolution of this issue on the basis that preclusion order bars defendant from offering its own affirmative evidence at trial and/or in support of its summary judgment motion. “Apparently, categorizing evidence as for either plaintiff or the defense, the majority condones defendant’s use of plaintiff’s deposition testimony to support its motion be-cause it was given by plaintiff and it is therefore not defendant’s affirmative evidence. I disagree.” The fact that defendant uses plaintiff’s deposition testimony to support its motion should make no difference. It is still evi-dence produced by defendant. Judge Tom dissents in part by concurring with Judge Acosta that the issue of preclusion requires denial of defen-dant’s motion. Since defendant is barred from offering evidence, it is therefore unable to demonstrate its prima facie entitlement to summary judgment. The majority opinion permitted consideration of defendant’s summary judgment motion, but, by using plaintiff’s deposition, the Court went on to discuss the substantive issue of wheth-er plaintiff made a prima facie case on his 200, 240(1) and/or 241(6) claims. Plaintiff was employed by Keystone Management as a property manager. In April of 2006, there had been complaints of a leak in the roof of defen-dant’s building and plaintiff was directed by his supervisor assess the damage and fix it. Plaintiff testified that the leak began in 2005 and complaints had been made by tenants to plaintiff’s supervisor that the roof was flimsy and not safe. Plaintiff was doing a walk-through, making an assessment of what repairs were necessary and what materials would be required, when a portion of the roof he was walking on began to buckle, falling one to two inches which, in turn, resulted in his loss of balance, causing a fall onto a conduit pipe sticking up out of the roof. Although defendant did not have control over the method or manner of plaintiff’s work, it can nonetheless be held liable if a dangerous condition exists on the premises which was either created by defendant or which existed for such a period of time that defendant had actual or constructive notice. Because there was proof of the roof leak-ing since at least 2005, the management company and, presumably, the defendant, were also aware of that. The Court also held that since defendant commanded plaintiff to inspect the roof despite the knowledge that the roof was flimsy, it gave rise to the duty under section 240(1) for defendant to provide plaintiff with appropriate safety devices. To reach this conclusion, the Court held that the plaintiff was not performing routine maintenance work but repair work. He was also not performing mere inspection work, but was assessing the work needed to be done to complete the repair work. This was an integral part of the repair work, which under ordinary circumstances would proceed under his supervision and that it was an eminent event and not merely a possible future task. The Court concluded that the facts gave rise to the need for safety devices under section 240(1) by stating, “Consistent with the principle that ‘the determination of the type of protective device required for a particular job [and thus whether section 240(1) is implicated] turns on the foreseeable risks of harm presented by the nature of the work being performed’ Buckley v. Columbia Grammar and Preparatory, 44 AD3d 263, 268 [2007], lv denied 10 NY3d 710 [2008],” this Court recently held in Jones v. 414 Equities, LLC, (57 AD3d 65 [2008]), and reiterated in Espinosa v. Azure Holdings II, LP (58 AD3d 287 [2008]), that to prevail on a Labor Law § 240(1) claim based on an injury resulting from the failure of a completed and permanent building structure, ‘the plaintiff must show that the failure of the structure in question was a foreseeable risk of the task he was performing’ (Espinosa at 291, quoting Jones at 80) creating a need for protective devices of the kind enumerated in the statute (Espinosa at 291-292). The Court also cited to the Second Department case of Shipkoski v. Watch Case Factory Assoc., 292 AD2d 587, where the Court held that the condition of the building in which the plaintiff was working was in





such a state of disrepair that it was sufficient to give rise to a triable issue since plaintiff’s work exposed him to a foreseeable risk of injury from an elevation-related hazard.” On the issue of foreseeability, Judge Acosta concurred with the result that plaintiff had spelled out a prima facie case under 240(1), but disagreed with that part of the reasoning employing the term foreseeability. Referring in his dissent in Vasquez v. Urbahn, 79 AD3d 493, he stressed the point that the statute itself does not refer to any element of foreseeability, only that contractors, owners and their agents “shall furnish” appropriate safety devices. According to Judge Acosta, the concept of foreseeability was addressed by the Court of Appeals where it explicit-ly stated that “plaintiff need not demonstrate that the precise manner in which the accident happened or that the injuries occurred was foreseeable; it is sufficient that he demonstrate that the risk of some injury from defendant’s conduct was foreseeable.” It is enough that given the inherent dangerous conditions of worksites, it is foreseeable that an owner’s or contractor’s failure to provide safety devices to workers, as here, may result in an injury. Aside from the disagreement as to whether defendant could use plaintiff’s deposition testimony to support a mo-tion for summary judgment when precluded from introducing any evidence at trial, all judges agreed with the rea-soning that plaintiff’s 241(6) claim should be dismissed since the only Industrial Code Rule cited, 23-1.7(e)(2), mandating that workers are not to be exposed to dirt, debris, scattered tools and other material and from sharp pro-jection, did not apply to the facts since plaintiff did not trip over any object that was left as a result of the work being performed. Falling on the pipe was not the equivalent of tripping on debris.

A. Summary Judgment Motions under §240

Merriman v. Integrated Bldg. Controls, Inc., 84 AD3d 897, (2nd Dept. 7/6/11) Both plaintiff’s and defendant’s motions for summary judgment on the 240(1) claim were denied on the basis that defendant’s proof did not eliminate all triable issues of fact as to whether plaintiff was the sole cause of the acci-dent, and plaintiff’s prima facie showing of entitlement to judgment was sufficiently countered by defendant’s submission of a medical report from plaintiff’s treating neurologist that plaintiff “missed a step” as he was des-cending the ladder. The Court determined that while this history was not germane to the diagnosis or treatment of plaintiff and, therefore, inadmissible at trial, it was, nonetheless, adequate to defeat summary judgment, citing several cases holding that there is a “more flexible” rule applied to a party opposing summary judgment. Zuck-erman v. City of New York, 49 NY2d 557; Friends of Animals v. Associated Fur Mfrs., 46 NY2d 1065. Such is particularly true when the inadmissible evidence does not provide the sole basis for denial of the motion. And the offering party can demonstrate acceptable excuse for his failure to meet the strict requirements of proof tendered in admissible form. Here, defendants demonstrated an acceptable excuse for failing to elicit admissible evidence from plaintiff’s treating neurologist at this stage of the proceeding, as well as referring to plaintiff’s equivocal responses at his deposition concerning the possibility that he “missed a step.” Silvas v. Bridgeview Invs., LLC, 79 AD3d 727 (2nd Dept. 12/7/10) Plaintiff’s decedent fell to his death from a balcony where he and a co-worker were stacking pieces of plywood debris for removal from the building under construction. All balconies had appropriate safety rails, save for the one plaintiff’s decedent fell from. Defendants moved for summary judgment dismissing both 240(1) and 241(6) causes of action, stating decedent was the sole cause of the accident since he disregarded the explicit instructions to stockpile wood in front of the barricaded balconies and, instead, removed the barricade in front of the balcony he fell from. The plaintiff, after all Labor Law claims were dismissed at the trial level, appealed on the basis that the defendant submitted no proof that it was the decedent or his co-worker who had removed the barricade. Ex-amining the project superintendant’s affidavit, which alleged the decedent and the co-worker removed the barri-cade, it contained no factual information to demonstrate personal knowledge on his part. “The affidavit contained




no indication that he witnessed the removal of the barricade, and did not set forth a factual basis for his conclusion that the barricade was removed by the decedent and his co-worker.” Without such factual basis, his assertions are without probative value and, therefore, insufficient to establish decedent was a recalcitrant worker. Note: It is not sufficient merely to make a “statement of fact” in order to create a triable issue of fact sufficient to defeat summary judgment. The proponent of the “statement of fact” should articulate a credible basis for making the statement. LeConte v. 80 E. End Owner’s Corp., 80 AD3d 669 (2nd Dept. 1/18/11) Plaintiff, being unable to open up an 8-foot A-frame ladder on a stairway landing, leaned it against the wall and was injured when it tilted to the left after a part of one leg slid between the metal slats of the landing. Defendant opposed the motion for summary judgment, first claiming that one of its employees did not give plaintiff the lad-der; that ladders were stored near his work area; and that he had been seen standing on the railing shortly before the accident. The Court rejected these arguments, pointing out that the factual dispute as to whether plaintiff was given the ladder did not give rise to a legitimate issue of fact since the dispute “must relate to material issues” in the case, citing to Forrest v. Jewish Guild for the Blind, 3 NY3d 295. Under either set of facts in this regard, plaintiff would still be entitled to summary judgment. Defendants also failed to create a triable issue of fact that plaintiff was the sole proximate cause of the accident from standing on the railing or that he was a recalcitrant worker in not obtaining an appropriate ladder. Moran v 200 Varick St. Assoc., LLC, AD3d (2nd Dept. 1/11/11) Plaintiff was granted summary judgment after establishing a prima facie 240(1) claim on facts that he fell from a scaffold which lacked any railings. The Court rejected defendant’s evidence that plaintiff was not engaged in a protected activity and/or was intoxicated after finding the evidence was not in admissible form. Also, the fact that the scaffold was found to have had properly functioning wheel locks was an insufficient basis to deny judgment in light of the fact that the scaffold lacked railings. Hernandez v. 42/43 Realty, LLC, 74 AD3d 558 (1st Dept. 06/15/10)

Plaintiff was granted summary judgment on her section 240(1) claim which resulted from a fall off an unstable ladder. Defendants failed to produce any legitimate issue of fact requiring a trial. B. Necessary Facts to Prove a Violation or Defense under §240 Ramsey v. Leon D. DeMatteis Constr. Corp., 79 AD3d 720 (2nd Dept. 12/7/10) Plaintiff, an elevator mechanic, was injured while standing on two aluminum planks approximately two feet wide that had been placed over the open shaft of an elevator shaft in a building where he was working. Plaintiff, who was wearing a safety harness with a 6-foot lanyard attached to a steel cable safety line, bent over to pick up some debris off the metal plank, lost his balance and fell off the planking. Before falling between the two planks, his knee and hip hit the concrete floor surrounding the shaft. He was able to stop his fall by grabbing onto the con-crete floor and the metal cable perimeter of the shaft, ending up 4-5 feet down into the shaft. If he had not done, so his safety harness and lanyard would have protected him from falling much further. The Court denied plaintiff summary judgment stating there were triable issues of fact as to whether the metal planks provided proper protec-tion under the statute and whether the plaintiff should have been provided with additional safety devices.






NOTE: Since the plaintiff had testified that his fall was generated by stepping on a piece of debris which caused him to lose his balance, and that he did not recall the metal planks moving when he slipped, the Court undoubted-ly felt there is a factual question as to whether the fall was due to an inadequate scaffold or to the presence of de-bris, thereby taking it out of the realm of Besimer v. Albany 216 AD2d 853, which stands for the proposition that summary judgment motions are appropriately granted under circumstances where the safety device collapsed, slipped, or otherwise failed to perform its intended purpose. Silvas v. Bridgeview Invs., LLC, 79 AD3d 727 (2nd Dept. 12/7/10) Plaintiff’s decedent fell to his death from a balcony where he and a co-worker were stacking pieces of plywood debris for removal from the building under construction. All balconies had appropriate safety rails save for the one plaintiff’s decedent fell from. Defendants moved for summary judgment dismissing both 240(1) and 241(6) causes of action, stating decedent was the sole cause of the accident since he disregarded the explicit instructions to stockpile wood in front of the barricaded balconies and, instead, removed the barricade in front of the balcony he fell from. The plaintiff, after all Labor Law claims were dismissed at the trial level, appealed on the basis that the defendant submitted no proof that it was the decedent or his co-worker who had removed the barricade. Ex-amining the project superintendant’s affidavit, which alleged the decedent and the co-worker removed the barri-cade, it contained no factual information to demonstrate personal knowledge on his part. “The affidavit contained no indication that he witnessed the removal of the barricade, and did not set forth a factual basis for his conclusion that the barricade was removed by the decedent and his co-worker.” Without such factual basis, his assertions are without probative value and therefore insufficient to establish decedent was a recalcitrant worker. Note: It is not sufficient merely to make a “statement of fact” in order to create a triable issue of fact sufficient to defeat summary judgment. The proponent of the “statement of fact” should articulate a credible basis for making the statement. Durmiaki v. Int’l Bus. Machines Corp.: AD3d (2nd Dept. 6/21/11) Plaintiff had been directed to cut an overhead pipe. He ascended an A-frame ladder to about four feet above ground and began to cut through the pipes. As he was doing so, he noticed it was “bowing” and he observed one of the pipe hangers some 10-12 feet away was missing. Before he could disengage the saw, the pipe snapped, striking the ladder and causing him to fall. This, the Court stated, created a prima facie violation of 240(1). De-fendant’s arguments that there was a safety rule requiring all laborers to work with a partner on demolition projects was rejected since there is no evidence that such a rule was communicated to plaintiff. Defendant’s con-tention that plaintiff failed to inspect the pipe hangers before cutting the pipe cannot be the sole cause of the acci-dent since there is no evidence that he was instructed to follow such a procedure. Further, he was not given time to perform any inspection. Although there were other safety devices, such as manlifts, scaffolds and harnesses on the job site, there was no proof plaintiff was instructed to utilize these devices, and not the A-frame ladder. Raynor v. Quality Plaza Realty, LLC, 84 AD3d 774 (2nd Dept. 5/3/11) Plaintiff fell some 17 to 20 feet from an unsecured extension ladder while installing light fixtures in a warehouse. He was directed to use the extension ladder and was assisted by his supervisor, who helped him set the ladder up and braced the ladder by holding it while plaintiff climbed it. When the supervisor left the plaintiff alone to com-plete the work, the ladder slipped at the top on the metal trusses and the base of the ladder slipped out underneath him. The defendant failed to raise a triable issue of fact as to the statutory violation and or causation. Cevallos v. Morning Dun Realty, 78 AD3d 547 (1st Dept 11/18/10)






Plaintiff, a handyman, was employed by the managing agent for the owner of the building. He was instructed to repair a hole in the ceiling of an apartment and was given an old wobbly ladder lacking rubber material on its footing. Plaintiff asked the manager to replace the ladder and was denied. His testimony was that while on the unsecured ladder, he was attempting to drill sheet rock into the ceiling while trying to hold it in place with his head. The Court found defendant had violated section 240; any negligence on plaintiff’s part would only be contributory; the unsecured old ladder was the proximate cause of plaintiff’s injuries; and the fact that the defendant was an absentee landlord had no bearing on liability under section 240(1). C. Breach of the Statute

D. Unwitnessed Accidents Fox v. H & M Hennes and Mauritz, L.P., 83 AD3d 889, (2nd Dept. 4/19/11) Plaintiff was an employed by Garrity Electric, Inc., as a mechanic performing electrical contracting work. Garrity was hired to replace bulbs and ballasts/transformers in 78 overhead light fixtures in a retail store. Garrity had done business with the retail establishment for several years performing electrical work for which it received $30,000 -$50,000 per year. To perform this project, Garrity furnished seven or eight workers led by a foreman. This work was not a matter of simply replacing a transformer, which is the task plaintiff was performing at the moment of his injury. Considering the overall scope of the entire project, the Court held it was not routine main-tenance, but a repair project. The fact that plaintiff was the sole witness to the accident does not preclude sum-mary judgment. VIII. PROXIMATE CAUSE Georgia v. Urbanski, 84 AD3d 1569, (3rd Dept. 5/12/11) Plaintiff, a framing carpenter, was injured when the ladder he was on slipped out from underneath him. The Court determined there were questions of fact as to whether or not the plaintiff was the sole cause of the accident. Defendant produced proof that the plaintiff was expected to perform all work on the inside walls of the founda-tion; that the ladder he was provided was adequate; and there were no slippery or icy conditions inside the founda-tion walls. Plaintiff acknowledged that he alone decided to do the work on the outside of the foundation wall and that he placed the ladder with its feet on an icy surface. The Court concluded a jury may determine that the sole proximate cause was plaintiff’s own doing and not a violation of section 240(1).

A. Recalcitrant Worker Doctrine / Blake Defense Kuhn v. Camelot Assn., Inc., 82 AD3d 1704, (4th Dept. 3/25/11) Plaintiff was injured when he was attempting to step from the roof of a building under construction onto an ele-vated platform which was attached to a forklift. As he stepped onto the platform, the forklift tipped over causing him to fall. In a 3:2 decision plaintiff’s summary judgment was affirmed, the Court dismissing defendant’s claim that discovery had not been completed. There was no showing by the defendant as to why it had not sought to depose non-party witnesses during the two year period between the commencement of the action and plaintiff’s motion. Also, plaintiff could not be the sole proximate cause of his injuries, since there was no showing that plaintiff had been instructed to use a ladder as opposed to the forklift for getting on and off the roof. To the con-





trary, plaintiff produced proof that his foreman not only observed, but facilitated, and participated in, the use of the forklift for transporting workers. Since the forklift was furnished by plaintiff’s employer, and its use as an alternative safety device for transporting personnel was approved by plaintiff’s supervisors, it cannot be said that plaintiff’s decision to use the forklift was the sole proximate cause of the accident. The dissenting opinion fo-cused on the fact that plaintiff had gained access to the roof by use of a ladder; this, the dissenters felt, created an issue of fact as to whether plaintiffs choice in not using the ladder to descend, choosing the forklift instead, re-sulted in him becoming the sole cause of the accident. Murray v. Arts Center and Theater of Schenectady, 77 AD3d 1155 (3rd Dept. 9/8/10) The Court reversed the lower court and granted plaintiff summary judgment upon a finding that the defendants failed to demonstrate one of the key elements necessary for establishing the recalcitrant worker/sole proximate cause defense. Plaintiff, an iron worker, fell 15 feet from one level to the floor below. Although he was wearing a harness and lanyard, he was not tied off to anything. The Court cited to the established rule of law set by the Court of Appeals on the necessary elements in order to set forth a valid recalcitrant/proximate cause defense: “liability under Labor Law section 240(1) does not attach when safety devices . . . were readily available at the work site, . . . and plaintiff knew he was expected to use them, but for no good reason chose not to do so, causing the accident.” Here, contractors had agreed to provide services and safety practices which would not be more stringent than OSHA regulations. OSHA regulations did not require plaintiff to be tied off at the height from which he fell. Moreover, defendants failed to submit any evidence that plaintiff knew, or should have known, that he was expected to anchor his safety harness and that he chose for no good reason not to do so. Rice v. West 37th Group, LLC, 78 AD3d 492 (1st Dept. 11/16/10) Plaintiff, a steamfitter, was injured while attempting to drill a hole in the wall approximately 13-14 feet above a stairwell landing. He first attempted to use a scissor lift to access the location of his work, but it was too big to fit in the stairwell. He determined a ladder was necessary, but his employer did not have any ladders over 10 feet tall on the site. After searching around the building, he found a 12 foot ladder, but it was too large to completely open up in the stairwell, forcing him to lean it up against a wall and attempt to brace its legs with a concrete block, 2 x 4’s and by placing one leg up against a support post. After approximately 30 minutes, the plaintiff heard a sound like wood cracking. He then fell and was injured. Defendant claimed there was an issue of fact as to whether or not the plaintiff’s actions were the sole cause of the accident. Defendant asserted that a Baker’s scaffold would have been the suitable device to use, but failed to submit any proof that such a device was available. Defendants also claimed that plaintiff should have asked the foreman, who would have then submitted a request for such a device, and this gave rise to an issue of fact that plaintiff was a recalcitrant worker/sole proximate cause of the accident. The Court disagreed, stating there was no evidence that plaintiff’s employer even owned a Baker’s scaffold, or how long it would have taken from the time plaintiff requested one until it could arrive for his use. Since the statute requires owners, contractors and their agents to provide, in this case, a Baker’s scaffold, and the defendant failed to submit evidence to demonstrate there were any available on the job site, or that they could readily supply one if they had been asked, they failed to meet the burden of proving a legitimate question of fact. Handville v. MJP Contractors, Inc., 77 AD3d 1471 (4th Dept. 10/8/10) The Court granted plaintiff summary judgment on his 240(1) claim when he fell from a ladder pick despite defen-dant’s allegations that there were approved OSHA scaffolding equipment and safety lines on the worksite. Since defendant presented no evidence establishing that plaintiff had been instructed to use that equipment, they failed to prove entitlement to the sole proximate cause/recalcitrant worker defense. The Court also rejected defendant’s claim for contribution and/or indemnification from the plaintiff. Plaintiff was self-employed and was not required to purchase a worker’s compensation policy covering himself, hence he did not violate the Workers’ Compensa-



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tion statutes which would permit a direct suit. Defendants were not entitled to common law contribu-tions/indemnification as this was not a grave injury. Auriemma v. Biltmore Theatre, 82 AD3d 1 (1st Dept. 1/27/11) Plaintiff, an electrician, was granted summary judgment for the injury he sustained in a fall from a 2 x 10 plank which was being used by him to descend into a 4-6 foot deep trench. The record demonstrated that he needed to get to the other side of the pit; that the stairs he would normally use had been blocked with construction material; there were no ladders available; and there was no other way to get to the other side of the pit. The Court rejected the defendant’s arguments opposing plaintiff’s motion stating, “there is no bright line minimum height differential requirement to establish a 240(1) case. Plaintiff could not be the sole proximate cause of his injury since there was no evidence in the record that plaintiff had a safety device available, knew that he was expected to use it, and unreasonably chose not to. A worker is expected, as a normal and logical response, to obtain a safety device him-self (rather than having one provided to him) only when he either knows exactly where the safety device is lo-cated and there is a practice of obtaining the safety device himself because it is easily done, which was not the case here. Moreover, a standing order to use a safety device does not raise a question of fact that plaintiff knew safety devices were available and he unreasonably chose not to use them. Even if plaintiff was told only to use ladders or stairs and not planks, his decision to use the plank “can only be considered unreasonable if ladders or stairs were in fact readily available.” The Court also granted the defendant owner, GC and Liberty Insurance summary judgment on their motion, dec-laring that Diamond Insurance must defend defendant owner, GC, and lessee of the premises as per contractual agreement to defend any and all actions brought against the GC. GOL Section 5-322.1 does not prohibit en-forcement of this provision since granting summary judgment to plaintiff on his 240(1) claim is not a finding of negligence for purposes of barring indemnification. (Brown v. 2 Exchange Plaza Partners, 76 NY2d 172). There was no evidence in the record that the general contractor was negligent and the duty to defend is much broader than the duty to indemnify. Pieri v. B & B Welch Associates, 74 AD3d 1727 (4th Dept. 06/11/10) The issue in this case involved whether the work plaintiff was performing constituted repair work, and whether the trial court should have charged the jury as to the possibility of plaintiff being the sole cause of the accident for failing to use a tripod device he had purchased for the defendant some 15 years earlier when he was their em-ployee. Holding in favor of the plaintiff on both these issues, the Court found that the work plaintiff was perform-ing, which had been called “troubleshooting” a malfunctioning sewer pump station connected to defendant’s apartment complex, was covered under section 240(1), since plaintiff’s presence on the site was due to a break-down in the equipment and he was to find the cause of and repair it. This type of inspection work is covered since it is neither pragmatic nor consistent with the spirit of the statute to isolate the moment of injury and ignore the general context of the work, citing to Prats v. Port Authority, 100 NY2d 878. Plaintiff’s injury was caused when he was leaning over the opening of the Pump Station Pit and accidentally fell into it. The tripod was a harness de-vice which was to be used by placing the tripod over the opening and attaching the safety harness lanyard to the tripod when working on the pump station. The Court pointed out that just because a safety device may be present somewhere on the worksite, it does not satisfy the requirements of section 240(1). Moreover, defendant failed to produce evidence that 1) plaintiff had been instructed to use the tripod and harness, or, that based upon his train-ing, prior practice and common sense, he knew or should have known to use it; 2) that the plaintiff knew he was expected to use the device; 3) that he chose for no good reason not to do so; and 4) that had he not made that choice, he would not have been injured. Maloney v. J.W. Pfeil & Co., Inc., 84 AD3d 1632 (3rd Dept. 5/19/11)





The Court found that plaintiff was the sole proximate cause of his fall from the top cap of a 6-foot ladder while installing sheetrock. Defendant produced proof that there were many appropriate safety devices for the work plaintiff was performing, such as 8-foot step ladders, Baker scaffolds, stilts and mechanical lifts. Plaintiff admit-ted knowing there were other safety devices in other locations of the building which were better suited for the type of work he was performing. The ladder he was using was not defective, but was not tall enough for the work he was performing. He admitted knowing the ladder contained a written warning never to stand on the top cap of the ladder. He also stated that he chose to use the 6-foot ladder, not because he was ordered to do so, but because he was under a time constraint and wanted to get the job done quickly and the ladder was the quickest thing to grab. Pietrowski v. Are-East Riv. Science Park, LLC: AD3d (1st Dept. 7/21/11) The Court affirmed denial of plaintiff’s motion for summary judgment under section 240(1) finding an issue of fact concerning proximate cause. Defendant produced proof through two witnesses that there were safety cables erected for the retractable lanyards, which defendant claimed were readily available, that plaintiff had been given a safety booklet outlining the rules concerning being tied off at heights and that employees were verbally warned to do so. The Court also denied plaintiff’s separate claim under 240(2) which requires railings upon scaffolding more than 20 feet off the ground. “If Pietrowski fell as he was descending the scaffold, and merely hit the scaf-fold on the way down, then the absence of safety rails could not have been a proximate cause of his fall and de-fendants cannot be liable despite the violation of Labor Law 240(2).” Moracho v. Open Door Family Med Center, 74 AD3d 657 (1st Dept. 06/24/10) The Court reversed summary judgment in favor of the plaintiff on his section 240(1) claim for injuries he sustained when he fell through an unguarded open skylight. The Court said the record demonstrated that a question of fact existed as to whether plaintiff was to tie off a safety vest; whether one was available for him; and, if so, whether he chose for no good reason not to do so. Zou v. Hai Ming Construction Corp., 74 AD3d 800 (2nd Dept. 08/25/10) The Court granted plaintiff summary judgment on his section 240(1) claim, pointing out that the defendants failed to raise any triable issue of fact in opposition. Specifically, there was no evidence that the plaintiff was provided with certain safety devices, or that such devices were readily available for his use, or that the plaintiff was specifically instructed to use such devices but chose for no good reason to disregard those instructions. Cahill, 4 NY3d 35. IX. ADEQUACY OF THE SAFETY DEVICE Ramsey v. Leon D. DeMatteis Constr. Corp., 79 AD3d 720 (2nd Dept. 12/7/10) Plaintiff, an elevator mechanic, was injured when he was working on the construction of an elevator shaft in a building while standing on two aluminum planks approximately two feet wide placed over the open shaft. Plain-tiff, who was wearing a safety harness with a 6-foot lanyard attached to a steel cable safety line, bent over to pick up some debris off the metal plank, lost his balance and fell off the planking. Before falling between the two planks, his knee and hip hit the concrete floor surrounding the shaft. He was able to stop his fall by grabbing onto the concrete floor and the metal cable perimeter of the shaft, ending up 4-5 feet down into the shaft. If he had not






done so, his safety harness and lanyard would have protected him from falling much further. The Court denied plaintiff summary judgment, stating there were triable issues of fact as to whether the metal planks provided proper protection under the statute and whether the plaintiff should have been provided with additional safety de-vices. NOTE: Since the plaintiff had testified that his fall was generated by stepping on a piece of debris which caused him to lose his balance, and that he did not recall the metal planks moving when he slipped, the Court undoubted-ly felt there was a factual question as to whether the fall was due to an inadequate scaffold or to the presence of debris, thereby taking it out of the realm of Besimer v. Albany, 216 AD2d 853, which stands for the proposition that summary judgment motions are appropriately granted under circumstances where the safety device collapsed, slipped, or otherwise failed to perform its intended purpose. Dean v. City of Utica, 75 AD3d 1130 (4th Dept. 07/09/10) Plaintiff was repairing a large overhead garage door while on a scissor lift. The garage door suddenly began to open, striking the scissor lift and knocking it over, causing plaintiff’s injury. The Court rejected defendant’s contention that the scissor lift was adequate as a matter of law, finding that the fact it tipped over after being struck demonstrates it was “not so placed . . . as to give proper protection” and therefore violated section 240(1). The Court also rejected the contention that it was plaintiff who was the sole cause of the accident for not properly locking the garage door before beginning to work. This was not the sole cause; according to the Court, it was nothing more than contributory negligence. Calderon v. Walgreen Co., 72 AD3d 1532 (4th Dept. 06/09/10) This 3:2 decision granted plaintiff summary judgment on his section 240(1) claim since, according to the majority, the plaintiff demonstrated that the scaffold he was on fell over as he was dismantling it. There was some proof in the record that the scaffolding lacked base plates, which presumably caused the scaffold to tip over, as plaintiff had moved all of the material to the rear of the scaffolding where the outrigger was located. The actions of the plaintiff were deemed to be comparative negligence and not a defense to the defendant’s failure to provide an adequate scaffold. The duty to provide adequate scaffolding exists even during the dismantling phase of the safety device. The dissenting judges argued that base plates, according to defendant’s expert, only serve to prevent the scaffold from “walking” or sinking into the ground and, therefore, had nothing to do with the scaffold tipping over because plaintiff created an unbalanced situation. Hamill v. Mutual of America Investment Corp., 79 AD3d 478 (1st Dept. 12/7/10) Plaintiff alleged his injuries occurred while he was repairing a drop ceiling damaged by a leak. The defense claimed he was not performing repair work, but routine maintenance, and that his fall from the ladder was due solely to his actions and not due to a violation of the statute. The Court determined there were questions of fact as to whether he was performing repair work or routine maintenance since plaintiff produced proof that he was not merely replacing one ceiling tile but several tiles, as well as its supporting track system which had also rusted. With regard to the proximate cause defense, the Court also found there was conflicting evidence in that plaintiff claimed the ladder shifted, causing him to fall, yet defendants submitted testimony from an after-the-fact witness who stated the ladder was standing after plaintiff fell, and another witness who stated plaintiff told him he fell because he misstepped while descending the ladder. This creates an issue of fact as to whether defendants failed to provide an adequate device. Bin Gu v. Palm Beach Tan, Inc., 81 AD3d 867 (2nd Dept. 2/22/11)






Plaintiff was injured when he fell from a step ladder which he had placed on top of a six foot scaffold with all its wheels locked. The Court denied plaintiff’s motion for summary judgment due to defendant’s opposing papers which created a triable issue of fact as to whether the scaffold provided was safe and adequate and there was no need for plaintiff to place a stepladder on top of the scaffold, as the scaffold was sufficient to complete the work. X. SUPERSEDING CAUSE Losito v. Manlyn Dev. Group, Inc.: AD3d (2nd Dept. 6/21/11) The Court granted plaintiff’s summary judgment motion on his 240(1) claim for injuries sustained when the A-frame ladder he was on collapsed, causing his injuries. Defendant’s argument that the act of plaintiff’s foreman stepping on the back of the plaintiff’s ladder just before it broke was a superseding intervening cause was re-jected. This was not “of such an extraordinary nature or so attenuated from the statutory violation as to constitute a superseding cause sufficient to relieve [them] of liability.” McCay v. J. A. Jones, 74 AD3d 615 (1st Dept. 06/17/10) Plaintiff’s summary judgment motion on his section 240(1) claim was affirmed upon the principal that the falling bricks that caused him to accidentally step off the platform were not a superseding cause. The Court cited to Joyce v. Rumsey, 17 NY2d 118, which stands for the proposition that there will always be some event which will preci-pitate the plaintiff worker into a dangerous situation calling for safety devices required under section 240(1). XI. WHEN DOES §241(6) APPLY?

A. Must Plead and Prove a Specific Industrial Code Rule Violation Nostrom v. A.W. Chesterton Co., 15 NY3d 502 (11/19/10) This case addresses the issue of when an Industrial Code rule, other than Rule 23, can be used to support a valid 241(6) claim. Nostrom, a boiler maker during the 1970s and 1980s, was exposed to asbestos through airborne dust and contact and subsequently developed mesothelioma. Suit was brought against more than 60 defendants, alleging a violation of section 241(6). The plaintiff alleged that Industrial Code rule parts 12-1.4(b) and 12-1.6(a), which deal with controlling air contaminants for all industries, trade and occupations, were violated and that such violations supported a valid 241(6) cause of action. Plaintiff’s claims were dismissed and the dismissal was af-firmed by the Appellate Division. The Court of Appeals granted leave to the plaintiff. Significantly, the Court reaffirmed its long-standing position that in matters of statutory and regulatory interpreta-tion: 1) “legislative intent is the great and controlling principle, and the proper judicial function is to discern and apply the will of the enactors”; 2) the text of the provision is the clearest indicator of that intent and the language is to be given its plain meaning; 3) the court should inquire into the spirit and purpose of the legislation which involves its legislative history. While the Court did not allow this plaintiff to proceed on his 241(6) claim based upon a violation of 12-1.4 and 12-1.6, it did not pronounce a blanket prohibition to claims premised on rules outside of Rule 23. Instead, the Court limited the use of rules outside Rule 23 only to those where there is evidence that the commissioner intended the rule to apply to owners, contractors and agents engaged in construction activities.





In the Nostrom case, it is evident when examining the legislative history, that Rule 23 was meant to apply to owners, contractors and their agents (12 NYCRR 23-1.3), whereas Rule 12 does not evidence an intention that section 241 served as a basis for enactment of that rule. Moreover, while Rule 23 itself does make reference to compliance with the requirements of Part 12, it does so in only a limited fashion. 12 NYCRR 23-1.7(g) states, “Air contaminated or oxygen deficient work areas. The atmosphere of any unventilated confined area including, but not limited to a sewer, pit, tank, or chimney, or where dangerous air contaminants may be present or where there may not be sufficient oxygen to support life, shall be tested by the employer, his authorized agent or by a designated person before any person is suffered or permitted to work in such area. Such testing shall be in accor-dance with the provisions of Industrial Code Part (Rule) 12, relating to the “control of air contaminants” and such areas shall be subject to the other pertinent provisions of Industrial Code Part (Rule) 12 and of Industrial Code Part (Rule) 18 relating to “Exhaust Systems.” The Court determined that this section would incorporate provi-sions of Rule 12 only in the narrow subset of work sites which involve unventilated confined areas where the pro-visions of Part 12 apply to owners, contractors and their agents for purposes of section 241(6) liability. To hold otherwise would render 23-1.7(g) meaningless. NOTE: Once again the Court of Appeals reminds us that the Labor Law statutes are to be interpreted based upon the legislative intent and that the proper judicial function is to discern and apply the will of the enactors. Unam-biguous language is to be given the effect of its plain meaning. As to the specific issue, “can an Industrial Code rule outside of Rule 23 support a valid 241(6) claim?” will depend upon language in Rule 23 which evidences an intent to incorporate such a rule or if the rule itself provides evidence of the commissioner’s intent to be incorpo-rated into Rule 23 and/or was intended to apply to owners, contractors and their agents. Gasques v. State of New York, 15 NY3d 869 (10/21/10) Plaintiff, a bridge painter, injured his hand when it became caught between the scaffold and the leg of the bridge that he was painting. Both parties agree that plaintiff’s hand was crushed as the motor driven scaffold ascended while his hand was trapped between the motor control and the steel structure of the bridge itself. The Court held that this was not a direct consequence of the application or the force of gravity. Citing to both Runner v. New York Stock Exchange and Ross v. Curtis Palmer. Also, plaintiff’s 241(6) claim based upon 12 NYCRR 23-1.5(c)(1), requiring machinery to be in good repair and safe working condition, is not a specific positive command. Jara v. New York Racing Assn., Inc.: AD3d (2nd Dept. 6/28/11) Plaintiff was employed as a laborer for a demolition company hired by defendant, Tishman, the construction manager that retained plaintiff’s employer. After unplugging an electric saw from a power outlet in an adjacent room, plaintiff was climbing over an eight foot high partially demolished wall and a pile of demolition debris which was blocking the doorway in order to return to his work station. Reversing the lower court, the Second Department granted summary judgment to the plaintiff quoting from Runner v. NY Stock Exch., 13 NY3d 599. “The single decisive question is whether plaintiff’s injuries were the direct consequence to the failure to provide adequate protection against a risk arising from a physically significant elevation differential.” The Court also re-versed the decision that refused plaintiff’s “belated identification of specific Industrial Code sections,” since there was no prejudice to the defendants, both sections 23-1.7(e)(1) and (2) apply to the facts, and there are no new fac-tual allegations or new theory of liability. The Supreme Court should have granted plaintiff’s cross motion for leave to supplement his bill of particulars, setting forth these two Industrial Code rules. Kowalik v. Lipschutz, 81 AD3d 782 (2nd Dept. 2/15/11) The plaintiff failed to allege an Industrial Code rule violation until responding to defendant’s motion for summary judgment to dismiss the 241(6) claim on that basis. In opposition, plaintiff raised for the first time, 23-1.7(d). The






Court noted that raising an Industrial Code rule for the first time in opposition to a motion for summary judgment does not preclude the Court’s consideration provided it “involves no new factual allegations, raises no new theo-ries of liability, and causes no prejudice.” However, the Court determined 23-1.7(d) did not apply to the facts at hand and, therefore, dismissed the 241(6) claim. Smith v. Robert Marini Builder, Inc.: AD3d (3rd Dept. 4/7/11) Plaintiff was injured when he was inspecting the bottom of an 18 foot deep trench and a portion of the side wall collapsed upon him. He alleged a 241(6) claim premised upon 12 NYCRR 23-4.1(b) and 23-4.2(a). The Court concluded that 23-4.1(b), which merely states that no person shall be permitted to work in a trench where he may be exposed to bank failure or cave-in, was not a specific command, but a reiteration of common law principles and thus could not support a 241(6) claim. However, 23-4.2(a), which requires shoring to be in contact with the sides or banks of a trench more than 5 feet in depth, is specific and does apply to the facts of this case. Specifical-ly, while a trench box and steel sheets were used, they were installed in such a manner that they were not in con-tact with the sides or banks, leaving a six to ten inch space between the shoring and the clay wall. Ulrich v. Motor Parkway Props., LLC: 84 AD3d 1221, (2nd Dept. 5/24/11)

Plaintiff, a mason’s tender, was taking mortar down to a bricklayer who was working at the bottom of an exca-vated trench at the foundation of a building. To do so, he had to traverse down a slope which was excavated to one on one. The slope gave way, causing him to fall forward and down the slope. The Court dismissed the 200 claim against the general contractor on the basis that the one on one slope did not have to be shored per both OSHA and the Industrial Code rules. Therefore, it did not constitute a dangerous or defective condition on the job site. The 241(6) claim was also dismissed by the Court on the basis that several of the cited provisions were mere general standards of care and not specific concrete procedures to be followed. All others were dismissed as being inapplicable to the facts and/or they were not violated according to the proof. The Court did grant summary judgment to the general contractor against the excavation company on its contractual indemnification claim which required indemnification for any claim arising out of the excavator’s work, even if the excavator was not negli-gent. This did not violate GOL5-322.1, since it also stated that the excavator was not required to indemnify the GC for the GC’s own negligence. Moisa v. Atlantic Collaborative Constr. Co., Inc., 83 AD3d 675 (2nd Dept. 4/5/11) Plaintiff was digging a trench that was directly underneath scaffolding that was erected as part of the construction project. Plaintiff’s version of the accident revealed he was digging under the scaffold and he picked up a scoop of dirt and debris with a shovel. He rotated to his left side to dump it and his back went out. The lower court had already dismissed the 240(1) claim. The Appellate Court dismissed plaintiff’s 241(6) claim, finding that Industri-al Code rule 23-2.1(a)(1), which applies to passageways, walkways, stairways, etc., did not apply, and 23-2.1(b), which deals with the disposal of debris, also could not serve as a predicate for 241(6), since it was not the prox-imate cause of plaintiff’s injury.

B. The Rule Must Apply to the Facts St. Louis v. Town of North Elba, 16 NY3d 411 (3/31/11) In this 4:3 decision, the Court was called upon to decide if 12 NYCRR 23-9.4, which states, “Where power sho-vels and backhoes are used for material handling, such equipment and the use thereof shall be in accordance with the following provisions: . . . 9(e) Attachment of load. (1) Any load handled by such equipment shall be sus-pended from the bucket arm by means of wire rope having a safety factor of four . . .” should apply to a front-end






loader which was fitted out with a hydraulic-operated clamshell bucket attachment used to lift sections of snow making pipe so the sections could be welded together to form a continuous pipe line. The plaintiff was injured when the clamshell bucket suddenly opened and released the pipe, pinning him to the ground. The majority opi-nion was authored by Chief Judge Lippman with Ciparick, Pigott and Jones concurring, concluding this section should apply even though the section only speaks about power shovels and backhoes and does not mention front-end loaders. The reasoning was primarily based upon the Court’s review of the related sections in 23-9, which applies to power operated equipment in general, and concluded that the front-end loader was being used in the same manner as a backhoe would be used for lifting and suspending material. “The Industrial Code should be sensibly interpreted and applied to effectuate its purpose of protecting construction laborers against ha-zards in the work place.” The dissenting opinion by Judge Smith began with the statement that “I call our approach to interpreting the sta-tute complicated . . .” referring to the requirement that only certain Industrial Code rules (those setting forth a spe-cific command) can support a 241(6) cause of action and that the Industrial Code rules should be read literally. “The virtue of this approach is that it assures that all have clear notice of what the law requires . . .” NOTE: In 2008, Judge Smith wrote a dissent in Sanatass v. Consolidated Investing Company, 10 NY3d 333, which dealt with the meaning of the phrase “all owners” as it applied to the Labor Law, in which he felt that the statute should not apply to the defendant owner of the building where the accident occurred. His rational for this was that he could “. . . not see how the statutory goal of preventing work place accidents is advanced by holding a landlord liable in a situation like this . . .” In the St. Louis case, he prefers to read the Labor Law with a strict lit-eral application of the rule to defeat the plaintiff’s claim. One thing he has been consistent at is expressing his dis-approval of the Labor Law. Mueller v. PSEG Power New York, Inc., 83 AD3d 1274 (3rd Dept. 4/14/11)

Plaintiff was working with a crew which was offloading concrete forms from a flatbed truck by use of a crane. Ultimately, the task was intended to store the forms by leaning them against a concrete pad with scrap wood piec-es to be placed between the forms in the concrete pad. When the form was dropped into its final place, the crane cable would be released and plaintiff, with a co-worker, were to hold the form slightly away from the concrete pad until the scrap pieces of wood were positioned. As the crane boom moved, it accidentally snagged one of the forms, lifting it a few inches before dropping it and causing it to fall on plaintiff’s leg. The Court dismissed the 240(1) claim stating, “a plaintiff must show more than simply that an object fell causing injury to a worker. A plaintiff must show that the object fell while being hoisted or secured because of the inadequacy of a safety device of the kind enumerated in the statute.” Narducci, 96 NY2d 259. Here, the form that caused the injury was no longer intended to be hoisted. The claim by plaintiff that the hoisting cable should have remained so as to support the form until the scrap wood was in place was insufficient to save the 240(1) claim. According to the Court, this kind of use of the cable would not be for an elevation-related purpose, but merely to hold the forms in position to protect against a hazard more closely related to general work place hazards, rather than an elevation-related ha-zard. Plaintiff’s 241(6) claim was also dismissed on the basis that 23-2.2(a), while specific in its command, did not apply to these facts, since it requires concrete forms to be braced or tied together while being used during the pouring of concrete, which is not the situation here. McCoy v. Metropolitan Transit Authority, 75 AD3d 428 (1st Dept. 07/01/10) The issue in this case was whether a specific piece of equipment, a Gradall, is to be treated as a mobile crane subject to 12 NYCRR 23-8.2. The Court noted there is no definition in the Industrial Code of the term “mobile crane” and, therefore, looked to the expert testimony presented by both parties. Finding the plaintiff’s expert to be more credible, the Court accepted his testimony, wherein he explained that the Gradall is a multi-purpose piece of





equipment, created long after the Industrial Code was written, and could be used for several different purposes, including as a crane. Defendant’s expert testimony was described by the Court simply as stating that the Gradall was manufactured, tested and sold in conformity with industrial safety standards and that it lacked certain characteristics of the subset of equipment known as mobile cranes. Cody v. State of New York: AD3d (2nd Dept. 3/15/11) Plaintiff was injured while installing wooden forms as frames for concrete. He was descending a ladder and, when stepping off the last rung, he stepped on a 2 x 4 piece of lumber, causing his injury. The Court dismissed the section 200 claim, noting these cases fall into one of two categories: 1) Injuries caused by a dangerous or de-fective condition on the premises; or 2) injuries caused by the manner in which the work was performed. In this case, the alleged defect or dangerous condition of the premises actually arose out of the contractor’s methods of performing the work and no liability will attach to the owner. (Comes v. NYS Elec. & Gas Corp., 82 NY2d 876) The 241(6) claim was also dismissed since 23-1.7(e)(1) only applies to passageways, not open spaces; 23-1.7(e)(2), requiring floors and platforms to be free of accumulated dirt and debris, does not apply since the 2 x 4 was an integral part of the work being performed; 23-2.1(a)(1), requiring building materials to be properly stored, also does not apply, as this material was not to be stored, but was actually being used for the work; 23-2.2(b), re-quiring stabilizing forms with shoring and bracing, only applies during pouring of concrete; and 23-2.2(d); requir-ing the prompt stockpiling of the forms; is not applicable to the facts since claimant failed to establish the 2 x 4 came from stripping of the forms. Ferreira v. City of New York: AD3d (2nd Dept. 6/28/11) Plaintiff’s decedent died from wounds inflicted when he was crushed between a flatbed trailer and the outrigger arm of a backhoe. The claim against the professional engineers was dismissed under the engineering exemption since there was no showing that they directed or controlled the work, other than for planning and design. Claims against the City of New York as the owner of the property, alleging 23-9.4(h)(4), which prohibits unauthorized personnel from standing adjacent to a backhoe, did not apply to plaintiff. 23-9.5(c) governing power shovels or dipper buckets also did not apply to these facts. The common law negligence and 200 claims were also dismissed as there was no proof the defendant City controlled the work, method or means. However, the Court did allow the 241(6) claim premised upon 23-4.2(k), which provides that workers shall not be permitted to work in an area where they may be struck or endangered by any excavation equipment. Zamajtys v. Cholewa, 84 AD3d 1360 (2nd Dept. 5/31/11) While measuring a door frame on a commercial renovation project, a group of twenty 8-foot long metal studs stacked against sheet rock fell and struck the plaintiff in his eye. Plaintiff’s 241(6) claim premised on 12 NYCRR 23-1.8(a) (requiring safety glasses) was dismissed since it applies only to persons employed in “welding, burning or cutting operations or in chipping, cutting or grinding any material from which particles may fly . . .” Since plaintiff was not performing these activities, it is inapplicable to these facts. Also, 23-2.1(a)(1), which requires all building materials to be stored in a safe and orderly manner, was also inapplicable since the record demonstrated studs were not being stored, but were actually being used by the carpenters who were installing them at the time of the accident. Austin v. Consolidated Edison, Inc., AD3d (2nd Dept. 12/7/10) Plaintiff was injured when he slipped on a tarp covering a mound of dirt that he was attempting to secure during a 60 mph wind and heavy rain environment. He was also wearing rubber boots as required on this job. The Court denied defendant summary judgment dismissing plaintiff’s 241(6) claim premised upon 23-1.7(d), which prohi-






bits work on elevated surfaces which are slippery. The tarp, according to the Court, positioned on top of the soil may be found by the trier of fact to constitute an elevated working surface. The Court did dismiss the plaintiff’s 200 claim on the basis that plaintiff did not submit sufficient evidence as to whether the defendant possessed the authority to supervise or control the worksite. Aragona v. State of New York, 74 AD3d 1260 (2nd Dept. 06/29/10) Claimant was injured when he tripped over a padeye which was welded to the deck of a work barge he was carrying lumber on. The Court reinstated the section 200 claim, stating that the accident did not arise out of the manner or method of plaintiff’s work, but by reason of a defect on the premises. Also, it reinstated plaintiff’s section 241(6) claim premised upon Industrial Code rule 23-1.7(e)(1), requiring passageways to be free from obstructions which could cause tripping. Erickson v. Cross Ready Mix, 75 AD3d 519 (2nd Dept. 07/13/10) Plaintiff was injured when a cement truck was backing up without the presence of a flag person properly positioned to guide the driver. The Court held that plaintiff’s section 241(6) claim premised upon 12 NYCRR 23-9.7[d] was a rule which was applicable to the facts and could serve as a basis for liability. Several other Industrial Code rules were determined not to apply to the facts and were dismissed.

C. Scope of Work Covered by §241(6) Coyago v. Mapa Props. Inc., 73 AD3d 664 (1st Dept. 06/30/10) Plaintiff was working with a flame torch dismantling a boat located on the premises of the defendant. An explosion occurred, causing injury which gave rise to plaintiff’s section 241(6) claim premised upon 12 NYCRR 23-1.25(f). The Court dismissed the section 241(6) claim on the basis that the statute only applies to construction excavation or demolition work. 12 NYCRR 23-1.4(b)(16) defines demolition work as “the work incidental to or associated with the total or partial dismantling or raising of a building or other structure including the removal or dismantling of machinery or other equipment.” The Court held that the “mere act of dismantling a vehicle, whether a boat, a car, or otherwise, unrelated to any other project, is not the sort of demolition intended to be covered by Labor Law section 241(6).” Citing to Caban, 63 AD3d 639. NOTE: The Caban case involved a journeyman electrician who was working to repair outdoor flood lights on the side of a building when he received a shock and fell from a ladder. The Court rejected defendant’s argument that he was performing maintenance work. As to the 241(6) claim, the Court stated that 241(6) applies to industrial accidents that occur in connection with “construction excavation or demolition work.” The ruling makes sense in this case since the journeyman electrician was not performing any of these activities, he was performing repair work. This case cites to Nagel, 99 NY2d 98, which involved a laborer injured while performing a two-year maintenance inspection on an elevator. Plaintiff’s argument that the Industrial Commissioner defined construction work to include maintenance allowed him to proceed on his 241(6) claim. The Court disagreed, stating that the statute itself limited the type of work covered to “construction, excavation or demolition.” The Industrial Ccommissioner could not enlarge the scope of the statute by including maintenance work within the statute. Similarly, the Industrial Commissioner cannot enlarge the scope of section 241(6) by making it applicable to buildings or structures. The statute itself states all contractors and owners and their agents . . . when constructing or demolishing buildings or doing any excavation in connection therewith. However, subdivision 7 states, “the Commissioner may make rules to provide for the protection of workers in connection with the excavation work for the construction of buildings, the work of constructing or demolishing buildings and structures . . . Subdivision 8 states “the Commissioner, as deemed necessary, shall promulgate rules





designed for the purpose of providing for the reasonable and adequate protection and safety of persons passing by all areas, buildings or structures in which construction, excavation or demolition work is being performed. The Court of Appeals has yet to rule that section 241(6) only applies to construction, excavation or demolition work on a building and that similar work on structures is not covered. The statute itself invites the Industrial Commissioner to enact rules that would cover structures. It would seem that the legislative intent was, in fac,t to have this statute apply to buildings or structures. Gonnerman v. Huddleston, 78 AD3d 993 (2nd Dept 11/23/10) Plaintiff, a truck driver, was employed on a project installing new light posts along the Meadowbrook State Park-way. The plaintiff was to drive his truck to a staging area which was just off one of the exit ramps to the parkway. At the staging area, light posts and their component parts would be off loaded, then assembled at the staging area, and then re-loaded onto the truck and brought to the actual site of their erection. As plaintiff was unloading the materials, a passenger vehicle using the ramp lost control, went into the staging area and struck the plaintiff. At the close of plaintiff’s case, the trial judge reserved decision on defendant’s motion seeking a dismissal. At issue was whether section 240(1) subdivision 6 applied to these facts. The Court held 241(6) is not confined just to con-struction excavation or demolition of a building, but also extends to workers on other projects, such as road con-struction, citing to Mosher, 80 NY2d 286. The scope of the worksite must be a flexible concept and is not simply confined to a precise location where the construction/demolition/erection work takes place. The statute extends to areas where materials or equipment are being readied for use, as opposed to areas where they are merely stored for future use. Here, it was undisputed that the light poles were to be assembled at the staging area and, therefore, it was part of the construction worksite. The Court also found that 12NYCRR 23-1.29 was applicable to the facts of this case, requiring the work area to be fenced or barricaded so as to direct public traffic away from the area. Montalvo v. New York & Presbyt. Hosp., 82 AD3d 580, (1st Dept. 3/22/11) Plaintiff was injured when he slipped on a grate that was wet from water which had overflowed the pit it was cov-ering, causing plaintiff to fall on it which, in turn, caused it to cave in, allowing plaintiff to fall into scalding water in the pit. Plaintiff was attempting to replace a float and rod component in the condensate pump that was part of the HVAC system. This was located in the pit which was six feet deep. Defendants claimed plaintiffs work amounted to nothing more than maintenance work as he was replacing components which were subject to normal wear and tear. Plaintiff argued that the components are not routinely replaced due to wear and tear and that he had only done so four or five times in twenty-five years. The Court, however, found that it could not determine whether it was maintenance or repair work since there was nothing in the record to establish the cause of the com-ponents breaking or what work was involved in replacing it. The 241(6) claim was dismissed since it only applies to construction demolition or excavation work, neither of which plaintiff was performing. Coleman v. Isg Lackawanna Services, 74 AD3d 1825 (4th Dept. 06/11/10) The Court was called upon to decide whether the Industrial Code rule cited by plaintiff was sufficient to support his section 241(6) claim. After finding several of the cited rules did not apply to the facts of the case, the Court did note that 12 NYCRR 23-2.1(b) was applicable to the facts. Plaintiff was injured when he was operating a diesel-powered water blasting unit, which the Court stated fit within the definition of demolition work since it was incidental to, or associated with, the dismantling of the mill at the defendant’s facilities. Sheldon v. Henderson & Johnson, Co., 75 AD3d 1155 (4th Dept. 07/09/10) Plaintiff was injured when he slipped and fell on ice in the parking lot of the building where he was working. The definition of worksite for purposes of section 241(6) is not limited to the actual area where the construction work






is to be performed, but also includes passageways or walkways to and from the work area. However, here, the parking lot where the plaintiff fell was not a passageway or a walkway and thus did not constitute part of the worksite. D. Type of Activity Covered by Industrial Code Rought v. Price Chopper, 73 AD3d 1414 (3rd Dept. 06/30/10) In this 3:2 fact-specific decision, the Court denied defendant’s motion seeking dismissal of plaintiff’s section 241(6) case. Plaintiff was assisting co-workers in the process of pulling electrical wires through conduit piping on the interior of a building. The conduit ran four feet straight up to the ceiling, took a 90 degree turn, continued straight and then had two more 90 degree turns. A rope had been threaded through the conduit, one end tied to the electrical wires and the other end to a forklift which was being used to apply tension on the rope with the design of pulling the wire through. Plaintiff was stationed underneath the four foot vertical conduit, helping to thread and push the cable up to the first 90 degree turn. As the forklift applied tension to the rope, the rope broke and the wires came loose from the conduit, striking the plaintiff and causing injury. The issue was whether plaintiff was engaged in hoisting material as the term applies to 12 NYCRR 23-6.2. The dissenting judges viewed these circumstances as presenting an accident which occurred due to friction caused by the 90 degree turns, which had placed resistance on the rope, resulting in it breaking, and the wire recoiling like a spring out of the bottom of the vertical four foot section of conduit. This, they felt, was not hoisting the material. The majority viewed the facts in a different light. Defendant failed to produce evidence “to establish as a matter of law that gravity was not a substantial contributing cause of the wires falling four feet and striking plaintiff.” NOTE: Interestingly, the lower court had dismissed plaintiff’s section 240(1) claim, but plaintiff did not appeal that ruling. If the Court held that the accident was caused by hoisting material under circumstances in which a jury could determine gravity played a substantial factor, the Court would have had to reverse the judgment dismissing the section 240(1) claim. Moll v. Brandwood LLC, 67 AD3d 1364 (4th Dept. 11/13/09) Plaintiff was injured when his foot was caught in a soil shredding machine. The soil had been excavated in connection with a housing development construction project, but the plaintiff and his employer were not part of the construction crew. They were hired in connection with the removal of the top soil from the site, and despite the fact that they were “shredding” the top soil on site before removing it, did not bring them within the requirement of performing construction and/or excavation type activities. Reyes v. Arco Wentworth Management: AD3d (2d Dept. 3/15/11) Plaintiff was injured while operating a ride-on lawn mower and one of the wheels went into a hole, causing the mower to roll over. The hole was on a sloped ground area near a retaining wall. The Court denied defendant’s motion to dismiss the 200 claim, as well as the 241(6) claim. The 200 claim was held to be viable since plaintiff alleged both a defect in the premises and a defect in the mower because it did not automatically shut off as re-quired by OSHA. The defective mower could be a proximate cause of the injury. Owners are not responsible for the manner or method of how the work is performed, but are responsible for defects in the premises which prox-imately caused the accident. These are all issues of fact for a jury. The 241(6) claim was not dismissed since plaintiff alleged that the grass was being cut as part of a broader construction, demolition, or excavation project calling for the replacement of multiple railroad ties.





E. Notice Booth v. Seven World Trade Co. L.P., 82 AD3d 499, (1st Dept. 3/10/11) Plaintiff, a construction site superintendant, reported for work at 6:00 A.M., attended meetings until 7:30 A.M. and began a bi-weekly walk-through of the site at 8:00 A.M. On the 42nd floor of the building, which was open to the elements, snow had accumulated, covering an object that plaintiff tripped on, causing him to slip and injure his back. The Court dismissed his 241(6) claim premised upon 23-1.7(d) and (e), which governs tripping hazards, because the section applies to tripping on debris, tools and other tripping hazards. Here, plaintiff testified he did not know what he tripped on since it was covered by snow and it “could have been anything from a bolt to a screw to a piece of rock.” The Court did permit plaintiff to proceed on 23-1.7(d), governing slipping hazards. Forensic meteorologists provided evidence that the snow storm started at 1:30 A.M. and it continued snowing un-til approximately 8:00 A.M. This was a sufficient period of time to give rise to constructive notice on the part of “someone within the chain of the construction project” Rizzuto, 91 NY2d 343. The fact that it was snowing up until the time of the accident is irrelevant. Although the storm in progress doctrine applies in common law negli-gence cases, it does not apply to 12 NYCRR 23-1.7(d), because “that subdivision includes no exception for storms in progress.” Rothchild v. Faber, 247 AD2d 889. F. Proof of Negligence and Proximate Cause Required Ortiz v. 164 Atlantic Ave., LLC: 77 AD3d 807 (2d Dept. 10/19/10 Plaintiff, a carpenter, fell from a seven-foot high metal scaffold and then continued to fall into an unprotected 3 x 4 foot hole, landing in the basement of the building he was working in. The Court reversed a lower court ruling which denied plaintiff’s summary judgment on his 240(1) and 241(6) claim after determining that plaintiff had met his prima facie burden and that defendant failed to raise any triable issue of fact. As to the 240(1) claim, it was undisputed that defendants failed to furnish the plaintiff with safety devices or to provide him with immediate specific instructions to use an actual available safety device, or to avoid using a particular safety device, thus he was not a recalcitrant worker. The Court also granted summary judgment on the 241(6) claim, stating that 23-1.7(b)(1), which requires hazardous openings into which a person may step or fall, to be guarded by a substantial cover, was applicable to the facts and was violated, resulting in plaintiff’s prima facie showing of liability under section 241(6). NOTE: The Court never addressed the issue of whether the violation of Industrial Code rule 23-1.7(b)(1) amounted to negligence on the part of the defendants, a necessary element according to Wagner v. Rizuto. G. Class of People Covered by §241(6) White v. Village of Port Chester, 84 AD3d 946, (2nd Dept. 5/10/11) Plaintiff, a truck driver delivering steel to a construction site, was injured when he parked his truck alongside a recently poured concrete sidewalk which had been covered with a plastic sheet that extended to the roadway. In the process of releasing the chains holding the steel to the truck, he tripped over a brick which had been covered and obscured by the plastic sheet. The Court denied defendant owner’s summary judgment on the 200 and com-mon law claims since there were questions of fact as to whether they had inspected the area and/or should have discovered presence of the brick. The Court also allowed common law and 200 claims to proceed against the con-crete subcontractor on the basis that they could be found to have created and/or have actual or constructive notice of the dangerous condition. The Court also permitted the plaintiff to proceed on the 241(6) claim, “since the in-jured plaintiff was in the course of delivering materials for use at the construction site, and Labor Law section





241(6) applies to workers and all those lawfully frequenting the construction site.” The owner and subcontractor who installed the newly poured sidewalks failed to demonstrate that the plaintiff was not engaged in construction work. Toro v. Plaza Constr. Corp., 82 AD3d 505, (1st Dept. 3/10/11) Plaintiff, a truck driver, suffered injuries to his face while performing construction debris removal at a renovation site. His 241(6) claims were dismissed since he was not involved with the demolition work, was never inside the building under renovation, his work was limited to pulling up to the loading dock, and this was just one of many locations he had been at that day. Thus, he was not a member of the protected class. Also, the demolition phase of the project had been completed about three weeks earlier. Therefore, plaintiff was not performing tasks con-temporaneous with the greater project and his work was separate and easily distinguishable from the construction. Rajkumar v. Budd Construction Corp., 77 AD3d 595 (1st Dept. 10/28/10) The Court granted the owners of a hotel summary judgment dismissing plaintiff’s 241(6), 200 and common law negligence claims. The plaintiff, an interior decorator, was injured when she tripped over brown construction paper that was purposefully laid over newly installed floors to protect them. Plaintiff was hired to manufacture and hang a 300 pound mirror in the hotel lobby. Since this was not done in the context of construction, demolition or excavation work, Labor Law 241(6) did not apply. The Court, however, went on to state that even if it did, Industrial Code rule 23-1.7(e) did not apply to the facts since brown construction paper was not dirt, debris or scattered tools or material in the work area, and that the lobby where the plaintiff fell could not be considered a passageway for purposes of 23-1.7(e)(1).

H. Who is Responsible Under §241(6)?

Pacheco v. Kew Garden Hills Apartment, 73 AD3d 578 (1st Dept. 06/30/10) Defendant’s motion for summary judgment on plaintiff’s Labor Law claims was denied as a result of the Court determining the defendant did not submit proof which, as a matter of law, demonstrated it did not have the authority to direct and control the work which was delegated to plaintiff’s employer. Moreover, its argument that it was not responsible for the scaffolding that the plaintiff fell from is unavailing because its contract required it to furnish the scaffold. NOTE: Sections 240, 241 and 241-a, apply only to owners and their contractors. The term "their contractors" refers to those they contracted with to perform the work. When a general contractor, who has complete authority over all of the work, delegates a portion of the responsibility to a subcontractor, the subcontractor is only responsible under the Labor Law for those areas of the work and the job site that have been delegated to them. They owe no Labor Law responsibility to anyone outside the domain of the work they agreed to perform. In this case, the plaintiff worked for the general contractor and his injuries arose out of work outside the domain of the subcontractor. See, Russin, 54 NY2d 311. Minorczyk v. Dormitory Authority, 74 AD3d 675 (1st Dept. 06/24/10) The Court affirmed a jury verdict in favor of the plaintiff, stating that the defendant was “the eyes, ears, and voice of the owner,” with complete supervisory authority, making it an agent of the owner for purposes of section 241(6). XII. SUMMARY JUDGMENT MOTIONS UNDER 241(6)






Ortiz v. 164 Atlantic Ave., LLC, 77 AD3d 807 (2d Dept. 10/19/10 Plaintiff, a carpenter, fell from a seven-foot high metal scaffold and then continued to fall into an unprotected 3 x 4 foot hole, landing in the basement of the building he was working in. The Court reversed a lower court ruling which denied plaintiff’s summary judgment on his 240(1) and 241(6) claim after determining that plaintiff had met his prima facie burden and that defendant failed to raise any triable issue of fact. As to the 240(1) claim, it was undisputed that defendants failed to furnish the plaintiff with safety devices or to provide him with immediate specific instructions to use an actual available safety device, or to avoid using a particular safety device, thus he was not a recalcitrant worker. The Court also granted summary judgment on the 241(6) claim, stating that 23-1.7(b)(1), which requires hazardous openings into which a person may step or fall, to be guarded by a substantial cover, was applicable to the facts and was violated, resulting in plaintiff’s prima facie showing of liability under section 241(6). NOTE: The Court never addressed the issue of whether the violation of Industrial Code rule 23-1.7(b)(1) amounted to negligence on the part of the defendants, a necessary element according to Wagner v. Rizuto. Hernandez v. Town of Hamburg, 83 AD3d 1507 (4th Dept. 4/29/11) Plaintiff’s decedent died when the walls of the unshored trench he was in collapsed. The Court dismissed the amended complaint on the basis that defendants had established that “based on his training, prior practice and common sense, [decedent] knew or should have known not to enter the unshored excavation.” Nevertheless, he chose to do so for no good reason, and, therefore, was the sole cause of the accident. NOTE: The plaintiff submitted the unsigned, heavily redacted OSHA report, which the Court determined was not in admissible form and, therefore, insufficient to defeat the claim. Citing to Friends of Animals v. Associated Fur Mfrs., 46 NY2d 1065. XIII. DEFENSES UNDER §240 AND §241

A. One- and Two-Family Homeowners Statutory Exemptions Castellanos v. United Cerebral Palsy Assoc., 77 AD3d 879 (2nd Dept. 10/26/10) The plaintiff fell from an alleged defective ladder while working on the renovation of a house owned by the de-fendant. The house was used as a dwelling for six disabled individuals who lived together and functioned as a family unit, with the Court citing to Mental Hygiene Law 31.34(f). On this basis, the 1- and 2-family exemption would apply to the defendant. The Court held that any income/profit received from Medicare, Medicaid or Social Security was not the primary purpose and was only ancillary to the residential purpose of the home. NOTE: Mental Hygiene Law Section 31.34(f) was enacted for the purpose of putting an end to disruptive litiga-tion over the location of community residences within family housing zones. In full, it states “a community resi-dence established pursuant to this section and family care homes shall be deemed a family unit for the purposes of local laws and ordinances.” But, in C.E.L. Lumber, Inc. v. Roberts, 109 AD2d 1002, the Third Department held that this section only applies to local laws and ordinances and would not allow its use to be used to avoid wage schedules mandated under the Labor Law. Lenda v. Breeze Concrete Corp., 73 AD3d 987 (2nd Dept. 06/30/10)






The Court was called upon to apply the 1- and 2- family exemption to a single family structure where plaintiff was hurt. The Court denied the exemption on the grounds that the owner, who lived in California, had hired a contractor to build a one-family home upon a parcel of land which had an 18,000 square foot house that the defendant’s family used for vacation. The single family structure, upon its completion, was to be used as a residence by the caretaker hired by defendant to look after the vacation home and other properties. Although he lived there rent free, the Court felt this did not give rise to the structure becoming a 1- or 2-family residence. Rodriguez v. Gany, 82 AD3d 863 (2nd Dept. 3/8/11) The plaintiff hired a contractor to build an addition to his one-family home. Plaintiff specifically exempted the roofing and HVAC work for the addition, choosing to hire these contractors himself since he “knew people in the business.” Plaintiff’s employer was hired by the homeowner and he fell from a ladder he was descending when it collapsed. He was installing HVAC duct work at the time and claimed his co-worker was instructed by the de-fendant homeowner to move the duct work, which is what he was doing at the time of the accident. This created a sufficient issue of fact with respect to whether the defendant homeowner directed and/or controlled the manner or method of the work giving rise to plaintiff’s injury. Gittins v. Barbaria Constr. Corp., 74 AD3d 744 (2nd Dept. 08/25/10) Defendant was granted summary judgment under the 1- and 2-family homeowner exemption since the only oppo-sition proof was that the plaintiff “would sometimes see the homeowner talking to his supervisor,” and that, ac-cording to the plaintiff, somehow created an issue of fact as to whether the defendant exercised direction and con-trol over the work so as to lose the exemption. Bucklaew v. Walters, 79 AD3d 1140 (4th Dept. 07/09/10) Plaintiff’s section 240 and 241(6) claims were dismissed based upon the 1- and 2-family exemption since there was no showing that the defendant exercised direction and control over the work.

B. Comparative Negligence

Harris v. City of New York, 83 AD3d 104 (1st Dept. 4/5/11) Plaintiff was injured while in the process of assisting in the lifting of a one-ton 10’ x 20’ section of a bridge road surface. The process he and his crew were directed to perform was to first cut the slab out of the bridge deck and then attach a choker chain to each side of the slab, attaching it to a crane that would lift it from the bridge surface. While in the process of lifting one of the slabs, one side did not come free from the bridge, although it had been cut. In order the pry it loose, plaintiff was directed to wedge a 4 x 4 piece of timber underneath the slab and to stand on one end of it while the crane operator lowered the slab, anticipating that the weight of the slab on the freed side would cause the wedged side to break free. The slab was lowered too quickly, causing the 4 x 4 to shatter, resulting in plaintiff’s fall and injuries. The Court reversed summary judgment granting defendant’s mo-tion to dismiss the 240(1) and 241(6) claim, and, in turn, granted plaintiff’s summary judgment on both causes of action. The Court drew a comparison with Runner v. New York Stock Exchange, 13 NY3d 603, noting the simi-larities of a heavy object falling a short distance and resulting in harm to a worker directly caused by the forces of gravity. The Court determined the defendant is liable for failing to give an adequate device precisely of the sort enumerated in the statute since it was not placed and operated as to give proper protection to plaintiff. The Court also reversed the lower Court’s denial of plaintiff’s motion to amend the Bill of Particulars to allege violations of Rule 23 and, based upon the proposed Industrial Code violations to be alleged, granted plaintiff’s motion for summary judgment on his 241(6) claim, stating there was no issue of fact as to the violation of these provisions.







Since plaintiff’s foreman submitted an affidavit indicating that he directed the plaintiff to stand on the 4 x 4, the Court obviously concluded there was no comparative negligence on plaintiff’s part, paving the way for judgment on liability on the 241(6) claim. C. Engineers and Architects Ferreira v. City of New York: AD3d (2nd Dept. 6/28/11) Plaintiff’s decedent died from wounds inflicted when he was crushed between a flatbed trailer and the outrigger arm of a backhoe. The claim against the professional engineers was dismissed under the engineering exemption since there was no showing they directed or controlled the work, other than for planning and design. Claims against the City of New York as the owner of the property, alleging 23-9.4(h)(4) violation, prohibiting unautho-rized personnel to stand adjacent to a backhoe, did not apply to plaintiff. 23-9.5(c), governing power shovels or dipper buckets, also did not apply to these facts. The common law negligence and 200 claims were also dis-missed as there was no proof the defendant City controlled the work, method or means. However, the Court did allow the 241(6) claim premised upon 23-4.2(k), which provides that workers shall not be permitted to work in an area where they may be struck or endangered by any excavation equipment.

D. Workers’ Compensation Ventura v. Ozone Park Holding Corp., 84 AD3d 516, (1st Dept. 5/10/11) Plaintiff apparently fell from a ladder while he was attempting to remove a garage door motor from its box. The Court determined this was not an alteration for purposes of section 240(1), nor was it repair work. Instead, it amounted only to maintenance work not covered by the statute. Plaintiff’s claims against defendant Reliable were dismissed, as Reliable was determined by the workers compensation board to be plaintiff’s employer. The com-mon law negligence claims and section 200 claims were dismissed as there was no evidence or even allegations that the remaining defendant had supervision or control over plaintiff’s work, or that it had any actual or construc-tive notice of any defect in the ladder. The fact that it lacked slip-resistant feet was an open and obvious condition and the defendant (the presumed owner of the ladder) only had a duty to warn of a known defect that was not rea-dily discernable, which was not the case here. E. Grave Injury Miranda v. Norstar Bldg. Corp., 79 AD3d 42 (3rd Dept. 10/28/10) The plaintiff sustained a traumatic brain injury when he fell approximately 30 feet from the edge of the roof he was working on. Suit was brought against the owner, general contractor, project manager and the roofing subcontractor. Defendants opposed plaintiff’s motion for summary judgment, alleging that they complied with OSHA requirements allowing for a safety monitoring system. The system consisted of one worker who would warn roofers when they approached a roof edge or other fall hazard. No other safety devices were provided. Defendants argued that the plaintiff was warned by the safety monitor to “watch the edge,” but seconds later the plaintiff slipped off the roof. Defendants argued the safety monitoring system was widely acceptable in the roofing trade, permitted by OSHA, and should be considered a safety device for purposes of section 240(1). The Court disagreed, referring to the monitor’s testimony that, “I can’t prevent someone from slipping off the roof.” The Court concluded that a person acting as a safety monitor is not of the same general kind or class of safety device as the physical objects enumerated in the statute. The Court also rejected defendants contention that plaintiff did not prove what additional safety devices would have prevented his injury. This is not an element plaintiff must prove. The Court further determined that plaintiff’s employer could not be held liable under





common law indemnification since there was inadequate proof to show plaintiff sustained a grave injury. Although plaintiff appeared in the lawsuit by his guardians appointed under the Mental Hygiene Law as a consequence of his head injury, such a finding is not binding on the Court’s determination of a grave injury under Section 11 of the Worker’s Compensation Law. The proof on the record created an issue of fact as to whether the plaintiff was totally disabled from performing any work, as there were differences of opinions amongst the medical experts. F. Special Employee Demaj v. Pelham Realty, LLC, 82 AD3d 531, (1st Dept. 3/15/11) Plaintiff fell when the ladder he was on collapsed as he was doing painting and plastering work. Defendant claimed he was entitled to the workers’ compensation exception because plaintiff was its special employee and his employer, JFA, was its alter ego. The Court rejected the claim, stating there was no evidence in the record to establish plaintiff as a special employee of defendant , such as when a defendant and a non-party employer are operated under the same control of the same parent corporation, have shared payroll services and employee ma-nuals and/or are covered by the same workers' compensation insurance policy. XIV. CONFLICTS OF LAW ISSUES INVOLVING A LABOR LAW DaSilva v. C & E Ventures, Inc., 83 AD3d 551, (1st Dept. 4/21/11) Plaintiff, along with several co-workers, alleged injury due to exposure to lead during paint abatement work they performed on the George Washington Bridge. The bridge is owned by the Port Authority. The major dispositive issue was whether New York’s Labor Law 241(6) or New Jersey’s General Negligence Law applied. The Port Authority argued plaintiff’s injuries occurred in New Jersey, not in New York. This was resolved in plaintiff’s favor with the Court noting defendant did not produce any proof to establish plaintiff’s injuries did not occur in New York, with the Court concluding that the evidence established injury occurred in both jurisdictions. Under New York’s choice of law rules, when the plaintiff and defendant are domiciled in different states, the law of the situs of the injuries will generally apply. Thus, if we consider the Port Authority to be domiciled in New Jersey, then New York law would apply. Since two of the seven plaintiffs were residents of New Jersey, New York courts will utilize an interest analysis to determine which jurisdiction has a greater interest in having its law apply. Under this approach, the Labor Law has been held to be “both conduct regulating and loss-allocating functions requiring work sites to be made safe (conduct-regulating) and failure to do so results in strict and vicarious liabili-ty of the owner of the property and general contractor . . .” Padula v. Lilarn Props. Corp., 84 NY2d 519. Thus, New York, which has a paramount interest in insuring the safety of workers within its territory, has the greater interest and the Labor Law will apply. XV. LIABILITY OVER: INDEMNIFICATION/CONTRIBUTION McCarthy v. Turner Constr., Inc.: NY3d (6/28/11) The Court of Appeals placed a limitation on indemnification claims brought under the Labor Law against owners and contractors who are neither negligent nor exercise their right to direct and control the manner and method of work. Accordingly, common law indemnity claims will apply only where the indemnitor was actively negligent or did exercise supervision and/or control over the work giving rise to the injury. Plaintiff sustained injury when he fell from an A-frame ladder and brought suit against the owner of the property, the construction manager and others. Plaintiff’s claims were settled for $1.6 million with $800,000 being paid by the property owner and $800,000 by the construction manager. The property owner then sought indemnification from the construction





manager, primarily relying upon the contract between the non-party tenant and the construction manager, which contained a provision that the construction manager was required to “supervise and direct the work, using [its] best skills and attention [, and] be solely responsible for and have control over construction means, methods, techniques, sequences and procedures for coordinating all portions of the work under the contract . . .” Important in understanding the reasoning of the Court of Appeals is the lineup of the involved parties. The owner leased the premises to a tenant (who was not sued). The tenant hired a construction manager, who, in turn, hired a contractor to install telephone and data cables. That contractor then hired plaintiff’s employer to do the actual cable installa-tion. The trial court granted summary judgment to the plaintiff, but denied the property owner summary judgment on the indemnification claim against the construction manager, finding that there was no contract between the property owners and the construction manager, and that the property owners were not third party beneficiaries of the agreement between the non-party tenants and the construction manager. The Appellate Division affirmed the holding and permission was granted for leave to appeal to the Court of Appeals. On appeal, the property owners argued that the court should adopt a general rule that: a party may be liable for common law indemnification upon a showing that the party (proposed indemnitor) was either negligent or had the authority to direct or control or supervise the injury producing work, even if it did not exercise that authority. After reviewing a number of the cases cited by the owner, the Court acknowledged that there did appear to be some support in the Appellate Divi-sion decisions, particularly from the First Department, that would appear to lend support to the owner’s argument. However, the Court refused to endorse such a principle, instead holding that a party’s right to indemnification arises from a contract or under circumstances giving rise to an implied agreement “based upon the law’s notion of what is fair and proper as between the parties” (Mas v. Two Bridges, 75 NY2d 680), since common law indemni-fication is a restitution concept which permits shifting of losses, because a failure to do so would be unjust enrichment for one party. Here, the construction manager was not a negligent party and did not exercise any di-rection and/or control over the work, “but a party’s (e.g., a general contractor’s) authority to supervise the work and implement safety practices is not alone a sufficient basis for requiring common law indemnification. Liability for indemnification may only be imposed against those parties (i.e., indemnitors) who exercise actual supervi-sion.” NOTE: Despite the fact that the general contractor may have violated the terms of its contractual agreement to actually perform supervision, direction and control over the work, the Court did not allow the property owner, who was not a party to the contract, to benefit from the construction manager’s contractual duty which was, in fact, not complied with. The Court of Appeals, noting that they did not act in a negligent manner which gave rise to the accident scenario, did not consider the construction manager to be a culpable party invoking the concept of fairness upon which implied indemnification relies. It should be noted that there was no contractual indemnifica-tion since no contract existed between the property owner and construction manager. The property owner only had a contractual agreement with the tenant. Moreover, the property owner cannot use the Labor Law statutes as a basis for indemnification since the statutes are designed and intended only to benefit injured workers who seek a recovery for their injuries. Owners, contractors and their agents are given no rights under these statutes to claim indemnification or reimbursement. Ulrich v. Motor Parkway Props., LLC: 84 AD3d 1221, (2nd Dept. 5/24/11)

Plaintiff, a mason’s tender, was taking mortar down to a bricklayer who was working at the bottom of an exca-vated trench at the foundation of a building. To do so, he had to traverse down a slope which was excavated to one on one. The slope gave way, causing him to fall forward and down the slope. The Court dismissed the 200 claim against the general contractor on the basis that the one on one slope did not have to be shored per both OSHA and the Industrial Code rules. Therefore, it did not constitute a dangerous or defective condition on the job site. The 241(6) claim was also dismissed by the Court on the basis that several of the cited provisions were mere general standards of care and not specific concrete procedures to be followed. All others were dismissed as being inapplicable to the facts and/or they were not violated according to the proof. The Court did grant summary



judgment to the general contractor against the excavation company on its contractual indemnification claim which required indemnification for any claim arising out of the excavator’s work, even if the excavator was not negli-gent. This did not violate GOL5-322.1, since it also stated that the excavator was not required to indemnify the GC for the GC’s own negligence. Mak v. Silverstein, 81 AD3d 520 (1st Dept. 2/17/11) Plaintiff was injured by a dangerous condition existing on the premises. The construction manager’s motion for summary judgment on plaintiff’s 200 and common law negligence claims was denied since there exists a question of fact as to whether the contractor created the dangerous condition or had noticed thereof. The construction manager’s claim for indemnification from the owner, as per the written management agreement, was void as against GOL 5-322.1, since it required the owner to indemnify the construction manager for the contractor’s own acts of negligence. The Court also denied the owner’s motion seeking indemnification from the construction manager as per the management agreement, since the clause did not provide for the owner to be indemnified for the negligent acts of the construction manager. Suazo v. Maple Ridge Assoc.: AD3d (1st Dept. 6/7/11) The third-party defendant was granted summary judgment dismissing the third-party complaint which sought in-demnification pursuant to an alleged written agreement. The paragraph relied upon in the contract was entitled “Waiver of lien and Indemnity Agreement.” The Court noted that this provision dealt with third-party defen-dant’s waiver of its right to claim a lien for materials and labor provided on the job once it received payment, and that the additional language stated that it “agreed to indemnify the owner against loss, cost or damage or expense of any kind incurred as a result of any claim made or liens filed by any subcontractors, suppliers, laborers or per-sons furnishing materials or equipment claiming through or under third-party defendant.” This, the Court held, was meant solely to apply to claims on account of services and materials provided and not every other conceiva-ble claim, such as a personal injury indemnification claim. Handville v. MJP Contractors, Inc., 77 AD3d 1471 (4th Dept. 10/8/10) The Court granted plaintiff summary judgment on his 240(1) claim when he fell from a ladder pick despite defen-dant’s allegations that there were approved OSHA scaffolding equipment and safety lines on the worksite. Since defendant presented no evidence establishing that plaintiff had been instructed to use that equipment, they failed to prove entitlement to the sole proximate cause/recalcitrant worker defense. The Court also rejected defendant’s claim for contribution and/or indemnification from the plaintiff. Plaintiff was self-employed and was not required to purchase a worker’s compensation policy covering himself, hence he did not violate the Workers’ Compensa-tion statutes which would permit a direct suit. Defendants were not entitled to common law contribu-tions/indemnification as this was not a grave injury. Cullin v. Makely, 80 AD3d 1042 (3d Dept. 1/20/11) Plaintiff sustained injuries when he fell from a collapsing scaffold. Subsequently, he had his leg amputated. De-fendant’s moved for indemnification/contribution alleging plaintiff sustained a grave injury. Plaintiff’s employer argued the amputation was elective surgery which arose out of plaintiff’s previous childhood accident when he was run over by a truck, and not caused by the work accident. Defendants relied on plaintiff’s treating physi-cian’s affidavit, stating the amputation was due to chronic pain and disability primarily resulting from his work-related accident superimposed on a childhood injury. This established a prima facie grave injury, while defen-dant’s attorney’s affidavit lacked any competent medical evidence.






Zawadzki v. 903 E. 51st Street, LLC, 80 AD3d 606 (2nd Dept. 1/11/11) Plaintiff was injured when he was struck by a falling object. Plaintiff initially sued defendant owner and defen-dant general contractor. These defendants brought third- and fourth- party actions against plaintiff’s employer. Initially, plaintiff entered a default judgment against the GC, but later stipulated that he would vacate the default with the GC conceding liability under section 240. The matter was set down for a trial on the issue of damages only and as to defendants’ various cross claims for indemnification. Plaintiff’s employer moved for dismissal, claiming it was prejudiced by the stipulation which it was not a party to and/or asked for severance of indemnifi-cation claims from plaintiff’s damage claims. The Court dismissed both, finding the employer not to have been prejudiced since it could still prove any of its defenses against the GC and it was well within the course of discre-tion to deny the severance pursuant to CPLR 603. Auriemma v. Biltmore Theatre, 82 AD3d 1 (1st Dept. 1/27/11) Plaintiff, an electrician, was granted summary judgment for the injury he sustained in a fall from a 2 x 10 plank which was being used by him to descend into a 4-6 foot deep trench. The record demonstrated that he needed to get to the other side of the pit; that the stairs he would normally use had been blocked with construction material; there were no ladders available; and there was no other way to get to the other side of the pit. The Court rejected the defendant’s arguments opposing plaintiff’s motion stating, “there is no bright line minimum height differential requirement to establish a 240(1) case. Plaintiff could not be the sole proximate cause of his injury since there was no evidence in the record that plaintiff had a safety device available, knew that he was expected to use it, and unreasonably chose not to. A worker is expected, as a normal and logical response, to obtain a safety device him-self (rather than having one provided to him) only when he either knows exactly where the safety device is lo-cated and there is a practice of obtaining the safety device himself because it is easily done, which was not the case here. Moreover, a standing order to use a safety device does not raise a question of fact that plaintiff knew safety devices were available and he unreasonably chose not to use them. Even if plaintiff was told only to use ladders or stairs and not planks, his decision to use the plank “can only be considered unreasonable if ladders or stairs were in fact readily available.” The Court also granted the defendant owner, GC and Liberty Insurance summary judgment on their motion, dec-laring that Diamond Insurance must defend defendant owner, GC, and lessee of the premises as per contractual agreement to defend any and all actions brought against the GC. GOL Section 5-322.1 does not prohibit en-forcement of this provision since granting summary judgment to plaintiff on his 240(1) claim is not a finding of negligence for purposes of barring indemnification. (Brown v. 2 Exchange Plaza Partners, 76 NY2d 172). There was no evidence in the record that the general contractor was negligent and the duty to defend is much broader than the duty to indemnify. XVI. PRE-EMPTION OF FEDERAL ADMIRALTY LAW Eldoh v. Astoria Generating Co., 81 AD3d 871 (2d Dept. 2/22/11) In Lee v. Astoria, 13 NY3d 382, the Court of Appeals held the Longshoremen’s Act preempted N.Y. Labor Law claims against the owner of a vessel. Defendant now moves for summary judgment dismissing Labor Law claims based upon this “new ruling.” The Court denied this part of the motion since “the statute (LHWCA) does not ap-ply to defendant AAR Engine component services because it is not the owner of the vessel nor is it the plaintiff’s employer. The Court also refused to dismiss the 200 claim upon defendant’s argument that defendant AAR did not direct and control the manner or method of the work. The determinative factor is not whether the defendant did control the work, but whether it had the authority to insist on proper safety practices. There was proof in the






record that it was defendant’s job to ensure that contractors work in a safe manner, that they follow safety rules and regulations, and actually assumed responsibility for the safety of the subcontractor employees and its contract documents. XVII. §241-a LIABILITY XVIII. Section 200 Reyes v. Arco Wentworth Management: AD3d (2d Dept. 3/15/11) Plaintiff was injured while operating a ride-on lawn mower and one of the wheels went into a hole, causing the mower to roll over. The hole was on a sloped ground area near a retaining wall. The Court denied defendant’s motion to dismiss the 200 claim, as well as the 241(6) claim. The 200 claim was held to be viable since plaintiff alleged both a defect in the premises and a defect in the mower because it did not automatically shut off as re-quired by OSHA. The defective mower could be a proximate cause of the injury. Owners are not responsible for the manner or method of how the work is performed, but are responsible for defects in the premises which prox-imately caused the accident. These are all issues of fact for a jury. The 241(6) claim was not dismissed since plaintiff alleged that the grass was being cut as part of a broader construction, demolition, or excavation project calling for the replacement of multiple railroad ties. Cody v. State of New York: AD3d (2nd Dept. 3/15/11) Plaintiff was injured while installing wooden forms as frames for concrete. He was descending a ladder and, when stepping off the last rung, he stepped on a 2 x 4 piece of lumber, causing his injury. The Court dismissed the section 200 claim, noting these cases fall into one of two categories: 1) Injuries caused by a dangerous or de-fective condition on the premises; or 2) injuries caused by the manner in which the work was performed. In this case, the alleged defect or dangerous condition of the premises actually arose out of the contractor’s methods of performing the work and no liability will attach to the owner. (Comes v. NYS Elec. & Gas Corp., 82 NY2d 876) The 241(6) claim was also dismissed since 23-1.7(e)(1) only applies to passageways, not open spaces; 23-1.7(e)(2), requiring floors and platforms to be free of accumulated dirt and debris, does not apply since the 2 x 4 was an integral part of the work being performed; 23-2.1(a)(1), requiring building materials to be properly stored, also does not apply, as this material was not to be stored, but was actually being used for the work; 23-2.2(b), re-quiring stabilizing forms with shoring and bracing, only applies during pouring of concrete; and 23-2.2(d); requir-ing the prompt stockpiling of the forms; is not applicable to the facts since claimant failed to establish the 2 x 4 came from stripping of the forms. Eldoh v. Astoria Generating Co., 81 AD3d 871 (2d Dept. 2/22/11) In Lee v. Astoria, 13 NY3d 382, the Court of Appeals held the Longshoremen’s Act preempted N.Y. Labor Law claims against the owner of a vessel. Defendant now moves for summary judgment dismissing Labor Law claims based upon this “new ruling.” The Court denied this part of the motion since “the statute (LHWCA) does not ap-ply to defendant AAR Engine component services because it is not the owner of the vessel nor is it the plaintiff’s employer. The Court also refused to dismiss the 200 claim upon defendant’s argument that defendant AAR did not direct and control the manner or method of the work. The determinative factor is not whether the defendant did control the work, but whether it had the authority to insist on proper safety practices. There was proof in the record that it was defendant’s job to ensure that contractors work in a safe manner, that they follow safety rules and regulations, and actually assumed responsibility for the safety of the subcontractor employees and its contract documents.






McKee v. Great Atlantic and Pacific TCO, 73 AD3d 872 (2nd Dept. 06/30/10) The plaintiff sustained an injury while using a masonry saw to cut a metal stud that he was securing to the ground with his foot. The stud kicked out from under his foot, causing him to fall and sustain injury to his back. Since this accident arose not out of a defect or dangerous condition of the premises, but the manner or method of the work plaintiff was performing, plaintiff’s section 200 cause of action was dismissed against the defendant as owner of the property. Plaintiff’s section 241(6) claim was also dismissed since plaintiff did not cite an Industrial Code rule which was applicable to the facts of this case. Murdoch v. Niagara Falls Bridge Commission, 81 AD3d 1456 (4th Dept. 2/18/11) The Court dismissed plaintiff’s 240 and 241 claims on a previous motion. After a jury trial on liability only, the jury determined defendant did not have the authority to direct and control the work. While the Court’s failure to charge that a violation of OSHA may constitute evidence of negligence for purposes of Labor Law 200, and common law negligence was an error, it was harmless since it would not have changed the jury’s verdict as to de-fendant’s lack of authority to direct and control the work. Reilly-Geiger v. Dougherty: AD3d (2nd Dept. 6/21/11) Plaintiff was working on defendant’s home installing a skylight. The extension ladder he was on was placed on top of a tarp to protect defendant’s dining room floor. The bottom of the ladder slipped on the tarp, causing plain-tiff to fall. The Court denied defendant’s motion to dismiss the 200 and common law claims, as defendants did not eliminate all questions of fact as to whether they created or had actual or constructive notice of the dangerous condition. Plaintiff testified that when he arrived at defendant’s home, the ladder was already set up on top of the tarp, and the defendant’s failed to eliminate questions of fact as to whether they erected the ladder. Frisbee v. 156 R.R. Ave. Corp.: AD3d (3rd Dept. 6/2/11) Plaintiff claimed to have slipped in a poorly lit room where carpeting glue had recently been applied, creating a slippery surface, and there were no warnings or barricades provided by the carpeting subcontractor. The Court dismissed the Labor Law 200 claim since that statute is directed at owners and general contractors. Only in the “rare case” where a subcontractor had the authority to control plaintiff’s work can a section 200 claim be viable. Here, plaintiff’s employer was hired by the lessee of the premises and there is no proof that the carpeting contrac-tor, hired by the owners of the property, had any authority over plaintiff’s work. However, the Court refused to dismiss the common law negligence claim against the carpeting contractor, since a dangerous condition created by a subcontractor does create a factual question as to whether they are negligent for creating an unreasonable risk of harm which serves as a proximate cause of plaintiff’s injuries. Ventura v. Ozone Park Holding Corp., 84 AD3d 516, (1st Dept. 5/10/11) Plaintiff apparently fell from a ladder while he was attempting to remove a garage door motor from its box. The Court determined this was not an alteration for purposes of section 240(1), nor was it repair work. Instead, it amounted only to maintenance work not covered by the statute. Plaintiff’s claims against defendant Reliable were dismissed, as Reliable was determined by the workers compensation board to be plaintiff’s employer. The com-mon law negligence claims and section 200 claims were dismissed as there was no evidence or even allegations that the remaining defendant had supervision or control over plaintiff’s work, or that it had any actual or construc-tive notice of any defect in the ladder. The fact that it lacked slip-resistant feet was an open and obvious condition and the defendant (the presumed owner of the ladder) only had a duty to warn of a known defect that was not rea-dily discernable, which was not the case here.







Kobel v. Niagara Mohawk Power Corp., 83 AD3d 1435 (4th Dept. 4/1/11) Plaintiff was injured when he slipped and fell backwards while working at the bottom of a manhole. The plain-tiff’s 200 Labor Law claim and common law negligence claim were allowed to stand since Niagara Mohawk failed to establish that they had neither actual nor constructive notice of the alleged dangerous condition at the bottom of the manhole. Plaintiff’s 241(6) claim was also preserved since 23-1.7(d) (working surfaces are not to be in a slippery condition) did apply to the facts of this case. Clavijo v. Universal Baptist Church, 76 AD3d 990 (2nd Dept. 9/21/10) Plaintiff was injured while drilling a hole into a cement wall from a ladder when the power tool got stuck in the wall and twisted, causing an injury to his arm. He did not fall from the ladder. The Court held that under section 200 of the Labor Law and common law negligence, the defendant could be held liable if the trier of fact deter-mined it had the authority to supervise or control the performance of the work, even where the party did not ac-tually exercise it, citing to Ortega, 57 AD3d and Alvarez, 68 NY2d 320. Trane v. Hastee, 77 AD3d 1370 (4th Dept 10/1/10) Plaintiff brought a Labor Law section 200 and common law negligence claim as a consequence of the injuries he sustained while unloading bundles of shingles from a conveyer belt used to deliver shingles to the roof of a house. The Court dismissed the complaint but not on the basis that plaintiff was a volunteer as held by the motion court. The Court found proof in plaintiff’s deposition testimony that he expected to receive “pocket change” for his help. The case was dismissed on the basis that the plaintiff claimed his injuries resulted from a dangerous condition of the premises and from the manner in which the work was preformed. Defendant established he did not set the conveyer belt up, nor did he give any instructions to the plaintiff’s on how to unload the bundles. Harsch v. City of New York, 78 AD3d 781 (2nd Dept 11/9/10) The plaintiff was employed on a gas utility line repair project when he fell on soft, loose and uneven pavement as he attempted to position an air compressor needed to jackhammer the street surface. The Court determined that defendant was not entitled to summary judgment, dismissing plaintiff’s Labor Law section 200 claim because the claim is premised upon the dangerous or defective condition of the premises and not from the manner in which the work was performed. A general contractor may be liable in common law negligence and under Labor Law section 200 if it has control over the work site and either created or had actual or constructive notice of the dan-gerous condition, citing to Martinez v. City of New York, 73 AD3d 993 and others. There was also a question of fact with respect to the 241(6) claim premised upon 23 – 1.7(e)(2). The Court did dismiss the 240(1) claim, as this accident did not involve the type of accident in which one of the safety devices enumerated in the statute would have prevented the accident. Nankervis v. Long Island University, 78 AD3d 799 (2nd Dept 11/9/10) Plaintiff, an electrician, was injured when he allegedly slipped on a pipe that was covered by debris while he was carrying some cable. As with Harsch v. City of New York, which had almost identical facts and issues, the Court denied defendant’s summary judgment on 200, 241(6) and the common law negligence claims. In order for the defendant’s to prevail on the motion seeking dismissal of the common law negligence and Labor Law 200 claim, they had to show “it neither created the dangerous condition nor had actual or constructive notice of it within a reasonable time to correct it.” This they failed to prove. The 241(6) claim based upon an alleged violation of 23-1.7 (d) applies only to slippery conditions, however, that portion of the 241(6) claim premised upon 23-1.7(e)(2),








which requires work areas to be free of dirt and debris, did apply to the facts allowing plaintiff to proceed under that Rule. McCormick v. 257 West Genesee, LLC, 78 AD3d 1581 (4th Dept 11/12/10) The plaintiff fell at a construction site when he tripped over a retaining pin which was inserted in a concrete form that was laying on the ground. The Court dismissed the common law negligence claim and the section 200 claim, finding that this condition did not involve a dangerous condition of the premises. The retaining pin had been “stored on a wooden form and the pin constituted an integral part of the construction. Where the alleged defect or dangerous condition arises from the contractor’s method and manner of how the work is performed, and the own-er exercises no supervisory control over the operation, no liability attaches under the common law or section 200.” Citing to Combs, 82NY2d 876. Also, the mere monitoring and oversight of the timing and quality of the work is insufficient to raise a triable issue of fact with respect to supervision or control for the purposes of Labor Law section 200 and or common law negligence. Sullivan v. Rgs Energy Group, Inc., 78 AD3d 1503 (4th Dept 11/12/10) The plaintiff tripped and fell on ice while working at a construction site. The defendant was denied summary judgment on the Labor Law 200 and common law negligence claim in as much as the case arises from a danger-ous condition of the premises rather than the manner and method of the work. Defendants needed to establish that they did not create the condition or that they lacked sufficient notice to remedy the condition. The Court found defendant’s proof lacking in this respect. Delaney v. City of New York, 78 AD3d 540 (1st Dept 11/18/10) Plaintiff, an ironworker, was injured while working on a city owned bridge. He was attempting to enter a lane of traffic on the bridge which had been closed off to the public but, nonetheless, he was struck by a pickup truck owned by his own employer. The Court dismissed the Labor Law 200 and 241(6) claim, stating that the section 200 and common law liability claim cannot be pursued since the defendant did not exercise supervisory control over the activities which gave rise to the plaintiff’s accident. The fact that the plaintiff’s employer had made the request and defendant granted the closure of the bridge and hired two engineers to ensure the work was to be done in accordance with the plans and specifications was insufficient to show control. The Court also rejected the claim that the Jersey barrier the plaintiff attempted to climb constituted a defect in the premises. The 241(6) claim was dismissed for lack of citing to a specific rule 23 provision. Martinez v. Tambe Electric Inc., 70 AD3d 1376 (4th Dept. 02/11/10) Plaintiff received an electrical shock while on a ladder, causing him to fall. The Court denied defendant summary judgment on the Labor Law claims on the grounds it failed to prove as a matter of law that it was not an agent of the general contractor with respect to the work that resulted in plaintiff’s injury. The defendant also failed in its attempt to obtain dismissal of plaintiff’s section 200 cause of action. Here, plaintiff alleged that the injury was caused by a defective condition of the premises and not due to the manner or method of his work or his tools. A subcontractor of the general contractor could, therefore, be held responsible, since the theory of the negligence has nothing to do with the manner or method of plaintiff’s work. XIX. NOTICE OF CLAIM Niewojt v. City of Middletown, 78 AD3d 948 (2nd Dept 11/16/10)







The plaintiff made a motion seeking leave to amend his notice of claim under General Municipal Law 50-e, seek-ing to add allegations alleging violations of Labor Law section 200, 240 and 241(6). Without discussing the par-ticular facts, the Court denied the motion, saying allowing the claimant to make these additional claims would substantially alter the nature of their claims that were set forth in the original notice of claim. XX. SECTION 202 - WINDOW WASHER STATUTE Agrispin v. 31 East 12th Street Owners, Inc., 77 AD3d 562 (1st Dept. 10/26/10) Plaintiff, a window washer, fell while cleaning the apartment owner’s windows. Although she hired him, she did not control or supervise his work. Suit was brought against the owner of a cooperative apartment building and the managing company who, in turn, brought a third-party claim against the apartment owner for indemnification and/or contribution under the terms of the lease. The lease provided that she did not have any responsibility to maintain structural components of the building. The defendant owner of the building owed a duty under section 202 to provide plaintiff with a safe means of cleaning her windows and, therefore, granted summary judgment dismissing the cross claims asserted against the apartment owner. XXI. UNDOCUMENTED ALIEN WORKER Angamarca v. NYC Partnership Hous. Dev. Fund, Inc.: AD3d (1st Dept. 6/21/11) Plaintiff, an undocumented alien from Ecuador, sustained multiple and severe permanent injuries when he fell from a two story townhouse roof he was working on. He was granted summary judgment on liability issues. At the trial on damages, the jury awarded him $20 million; $100,000 for past pain and suffering/loss of enjoyment of life; $1,531,172.00 for past medical expenses; $74,013.00 for past lost earnings; $1,000,000.00 for future pain and suffering/enjoyment of life over 40 years; $16,721,684.00 for future medical expenses for 40 years; and $573,131 for future lost earnings for 23 years. Defendants appeal from the trial court’s ruling, which prohibited it on cross examination from bringing up plaintiff’s prior intention of returning to Ecuador after he earned enough money. Defendant claims the jury should be allowed to consider his immigration status and his intention to return which would greatly affect his future medical costs. The Court rejected defendant’s argument declaring the lower court’s ruling a “providently exercised” discretion. “Any argument by defendant that plaintiff was subject to de-portation to Ecuador or had expressed an interest prior to the accident in some day returning to Ecuador, in an ef-fort to suggest plaintiff would incur lower medical expenses in Ecuador than in the United States would have been inappropriate.” Justifying his position the majority opinion points out defendant produced no evidence that de-portation was anything but speculative. Moreover, the trial court had previously precluded purported expert testi-mony on this issue due to defendant’s belated disclosure (less than one week before trial). Defendant also ac-knowledged it was not prepared to present any evidence that would guide a jury in determining future medical expenses in Ecuador. The Court also granted plaintiff’s appeal seeking to set aside past pain and suffering and future pain and suffering ($100,000 and $1,000,000) as being inadequate. Based on the serious injuries, the Court set aside that aspect of the damages, ordering a new trial only on past and future pain and suffering only, unless defendants stipulated to as award of $1.5 million for past pain and suffering and $3.5 million for future. There was a strong dissent, arguing that the ruling essentially deprives a jury of considering an alien worker’s lack of permanent resident status which is an unwarranted extension of the Court of Appeals ruling in Balbuena v. IDR Realty, 6 NY3d 338. NOTE: The Balbuena case did not prohibit proof as to plaintiff’s immigration status and the likelihood of either being deported or voluntarily returning to his/her country of origin. However, under the specific facts of this case, defendant was not prepared to prove any difference in medical costs between plaintiff’s proof-based US costs and those of Ecuador. Without this proof, defendant is simply making a suggestion to the jury that the cost would be







lower without any factual basis. There is also a lack of proof that plaintiff would be deported. Undoubtedly, this 3:2 decision will find its way to the Court of Appeals, but I believe the procedural and factual posture of this case will result in an affirmance.

XXII. MISCELLANEOUS Ramirez v. Willow Ridge Country Club: AD3d (1st Dept. 5/5/11) Plaintiff appeals from a jury verdict in favor of defendant for injuries he alleged he sustained when he fell from a second story deck that had a portion of its railing missing. Defendant’s foreman testified that plaintiff’s accident occurred when he was straddling an A-frame ladder and an extension ladder and that he was told to stop but re-fused. Several interesting procedural issues raised on appeal included an inconsistent jury verdict, in that it found a violation of the statute, but not proximate cause. The Court stated the verdict was consistent since they could have found a violation with respect to the missing railing, but that this was not the proximate cause of plaintiff’s injuries, believing instead the defendant’s version. Moreover, the argument was unpreserved “since it was not raised before the jury was discharged (see Barry v. Manglass, 55 NY2d 803 [1981]). Plaintiff also claims the jury should not have been charged with PJI 1:76, that an inference could be drawn from plaintiff’s refusal to waive his attorney-client privilege when a former paralegal from plaintiff’s firm was called by the defendant. The Court rejected this, citing to Matter of Commissioner of Social Services v. Philip DE G., 59 NY2d 137 for the proposition that “it is now established that in civil proceedings an inference may be drawn against the witness be-cause of his failure to testify or because he exercises his privilege to prevent another from testifying, whether the privilege is constitutional . . . or statutory”). The third argument rejected by the Court was prohibition against using a witness’ EBT transcript for cross-examination when plaintiff’s attorney failed to demonstrate compliance with CPLR 3116(a) (sending witness the transcript to be signed within 60 days). Also, “Since plaintiff does not specify any parts of the deposition that he would have used, any error would appear to be harmless.” Bodge v. Red Hook Senior Hous. Dev. Fund Co., Inc.: AD3d (2nd Dept. 6/28/11) Plaintiff moved for a directed verdict on liability under CPLR 4401 on his 240(1) claim. The motion was denied and on appeal the Court noted the motion was made before defendant’s proof was completed and therefore was premature. Since it was not renewed at the completion of all proof, it could not serve as a basis for reversal. The plaintiff also alleged the jury’s verdict was inconsistent with the proof, but the Court determined this issue was not preserved for appellate review since it was not raised as an issue before the jury was discharged.




LABOR LAW 2010-2011 UPDATE - Amazon S3 · v. the class of people covered under §240 ..... 121 vi. who is responsible under §240 – contractors and owners and their ... (espinosa

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