EDITOR Thomas F. Segalla
If you have any questions about any cases reported in this Update
or questions concerning Labor Law §§200, 240(1) and 241(6) in
general, please contact Tom Segalla. (716) 566-5480; or
[email protected]
To subscribe to Labor Law Update and additional Goldberg Segalla
publications, visit ‘Resources’ at GoldbergSegalla.com or scan the
QR code below.
During this reporting period, the Court of Appeals, in various
of
its rulings appears to be modifying and extending the reach
of
the strict liability of Labor Law §240(1). The court has
traditionally
left such modifications and extension to the New York
Legislature
and not the judicial process. For example, the Court of Appeals,
in
a divided decision (4-2) in the Wilinski, 18 N.Y.3d 1 (2011)
case,
clearly expands the application of section 240(1) to cover
injuries
caused by a “falling object,” in a situation that practitioners
previ-
ously were of the opinion would not have been within the
purview
of that statute.
continued to grapple with the sole proximate cause defense
and
the application of Runner v. New York Stock Exchange, 13
N.Y.3d
599 (2009) to diverse factual patterns. Similarly, the courts
already
had to consider the implications of Wilinski.
A review of various cases indicates that in light of these new
de-
velopments, litigants are reaching out to experts in the
construc-
tion field to help meet their burden of proof or create issues of
fact.
If you have any questions about any cases reported in this
Update
or questions concerning Labor Law §§200, 240(1), and 241(6)
in
general, please contact Tom Segalla at the above address,
by phone at (716) 566-5480, or by email at
[email protected].
1 See Sanatass v. Consolidated Inventory Company, Inc. 10 N.Y3d
333, 342, 858
N.Y.S.2d 67 (2008).
Winter 2012
New in this edition:
All cases are now indexed by subject matter. See pg. 2.
Attorney Advertising
2 • Winter 2012 LABOR LAW UPDATE Winter 2012 • 3LABOR LAW
UPDATE
To help you find the case summaries you need more quickly and
easily, we have indexed them
using Topic Tags that accompany each Practice Note. The topics
covered in this edition are listed
below along with the page numbers on which relevant case summaries
appear.
COURT OF APPEALS
1. Dallas M. Grove v. Cornell University, 2011 N.Y. LEXIS 3080
(Oct. 18, 2011). Without reciting the facts of the case, the court
affirmed the decision of the Appellate Division, Third Department
and held that there were triable issues of fact as to whether the
defendant failed to provide an adequate safety device or whether
the plaintiff’s conduct was the sole proximate cause of plaintiff’s
injuries.
Practice Note: The decision of the Third Department and the Records
and Briefs on Appeal should be read in order to assess the impact
of the case.
Topic Tags: Defective or Inadequate Safety Equipment, Sole
Proximate Cause
2. Antoni Wilinski v. 334 East 92nd Housing Development Fund, 2011
18 N.Y.3d 1 (Oct. 25, 2011).
The following facts were assessed by the court, in holding that
issues of fact exist as to whether the plaintiff was injured as a
result of the lack of a statutorily prescribed protective
device:
• Plaintiff was demolishing a brick wall. • Two vertical plumbing
pipes were left unsecured • Plaintiff voiced concern to his
supervisor • Plaintiff was struck by the pipes and was
injured
Specifically at issue was whether the plaintiff suffered a gravity
related injury. The Appellate Division, First Department had held
that since both the pipes and the plaintiff were at the same level
that the injury was not caused by the type of elevation-related
accident that is protected by Labor Law §240(1). In reversing the
Appellate Division, the majority court (5-1) discussed its prior
holding in Misseritti v. Mark IV Constr. Co. 86 N.Y.2d (1995) and
noted that Misseritti did not categorically exclude injuries caused
by falling objects that, at the time of the accident, were at the
same level as the plaintiff. The one dissenting judge noted that he
saw “… no reason to stray from overwhelming and settled body of
case law that establishes that §240(1) does not apply when the face
of the falling object is at the same level as the worker and the
work being performed.”
Practice Note: From a defense perspective this case is a rejection
of traditional falling object rulings of this and other courts. See
also, Melo v. Consolidated Edison, 92 N.Y.2d 909 (1998).
Topic Tags: Defective or Inadequate Safety Equipment, Falling
Objects
A Actual or Constructive Notice of Dangerous Conditions
6, 9, 10, 12, 15, 22, 23 Alteration or Repair 13 Anti-Subrogation
Rule 23 Application of Force or Gravity to an Object or Person
4,
6, 7 Application of Labor Law 5, 8, 11, 12 Authority or Control
Over Work 7, 8, 10, 11, 12, 14, 15,
16, 17, 22, 23
C Common Law Indemnification 9, 10, 14, 25 Common Law Negligence 8,
9, 11, 12, 15, 16, 22, 23, 24 Comparative Negligence 9 Contractual
Indemnification 10, 14, 21, 24, 25
D Danger Invites Rescue Doctrine 21 Dangerous Conditions 7, 12, 15,
17, 21, 24 Defective or Inadequate Safety Equipment 3, 4, 7, 9,
10,
14, 15, 21, 23
E Elevated Risk 14, 20, 22, 23, 24 Expert Retention 22
F Failure to Provide Protection 5, 6, 7, 8, 11, 13, 18, 20 Falling
Objects 3, 11, 12, 20
G Grave Injury 15
J Jurisdiction 24
O One- or Two-Family Dwelling Exemption 15, 16, 18, 22
P Permanent Fixture 6 Plaintiff ’s Burden of Proof 4 Prima Facie
Burden 8, 13, 14, 19 Property Owner 5, 7, 12, 22 Protected Activity
4, 8, 11
R Recalcitrant Worker 5, 18, 19 Routine Maintenance 6, 8
S Significant Elevation Differential 7, 11, 17, 18, 22 Sole
Proximate Cause 3, 6, 12, 13, 14, 16, 19, 20 Special Employee 8, 10
Superseding Cause 7, 8, 11
T Two-Family Dwelling Exemption 15
U Unprotected Hole / Hazardous Opening 24 Unprotected
Hole/Hazardous Opening 4, 24 Unsecured Ladder 13, 14, 16, 21
W Workers’ Compensation Insurance 10
Labor Law Update Topic Index
4 • Winter 2012 LABOR LAW UPDATE Winter 2012 • 5LABOR LAW
UPDATE
3. Raul Salazar v. Norvalex Contracting Corp., 2011 N.Y. LEXIS 3284
(Nov. 21, 2011). Plaintiff was injured when he stepped into a
2-feet-wide and 3-to-4-feet-deep hole which did not have a railing,
barricade, or cover around or over the trench. At the time of his
injury, the plaintiff was walking backwards spreading concrete. The
majority of the court, (4-2) citing to Runner v. New York Stock
Exch. 13 N.Y.23 599 (2009) and Wilinski v. 334 E. 92nd Hous. Dev.
Fund, 18 N.Y.3d 1 (2011), dismissed the Labor Law §240(1) claim and
noted that the statute “should be construed with a common sense
approach to the realities of the work place at issue … .” Covering
the opening in question would have been inconsistent with filling
it, and was an integral part of the job. The dissent refused to
create an exception to §240(1) where a simple placement of a cover
over the trench would have prevented the accident.
Practice Note: The Courts have traditionally held that falling into
a trench is not a protected activity under §240(1).
Topic Tags: Protected Activity, Unprotected Hole/Hazardous
Opening
4. Edward Beazer v. New York City Health & Hospitals Corp.,
2011 N.Y. LEXIS 3628 (Dec. 15, 2011). Plaintiff injured his left
thumb when he was using an unguarded angle grinder while cutting a
steel tube out of a concrete floor at a construction site. At issue
on this appeal was who was the owner of the grinder and the court
concluded that there was an issue of fact.
Practice Note: This appeal arose out of a certified question from
the Appellate Division, First Department.
Topic Tags: Defective or Inadequate Safety Equipment
5. Luis F. Ortiz v. Varsity Holdings, LLC, 2011 N.Y. LEXIS 3655
(Dec. 20, 2011). At issue on this appeal was whether the
plaintiff’s fall from the ledge at the top of the dumpster was
protected by §240(1). At the time of his injury, the plaintiff and
a co-worker were rearranging construction debris inside a dumpster
to make more room. The court denied plaintiff’s motion for summary
judgment and noted:
1. Plaintiff failed to establish that he was required to stand on
or near the ledge.
2. Plaintiff failed to establish that there was a safety device of
the kind enumerated in §240(1) that would have prevented his
fall.
These factors created issues of fact.
Practice Note: This is an excellent case that sets forth the
injured plaintiff’s burden of proof.
Topic Tags: Application of Force or Gravity to an Object or Person,
Plaintiff’s Burden of Proof
FIRST DEPARTMENT
1. Richard Pietrowski v. Are-East River Science Park, LLC, 86
A.D.3d 467, 928 N.Y.S.2d 266 (1st Dept. 2011)(July 21, 2011).
Plaintiff was injured while descending from the fifth floor of a
building under construction to a scaffold located approximately 70
inches below. The court refused to grant the plaintiff summary
judgment under section 240(1) because there were issues of fact as
to whether the defendant failed to provide the plaintiff with
safety devices, or whether the safety devices were made available
and plaintiff was recalcitrant in failing to use the devices.
Similarly, with respect to §240(2), the court denied plaintiff’s
motion holding that there were triable issues of fact with respect
to whether the plaintiff fell from the scaffold, or while he was
descending to it. If descending, there was not any need to provide
safety railings as required by this statute.
Practice Note: Where there are questions as to how an incident
occurred, summary judgment should not be granted.
Topic Tags: Failure to Provide Protection, Recalcitrant
Worker
2. Ricardo Flores v. ERC Holding, LLC, 87 A.D.3d 419, 928 N.Y.S.2d
7 (1st Dept. 2011)(Aug. 4, 2011). The plaintiff’s employer was
retained by the general contractor to do framing work on a
construction project. The plaintiff was injured while he was
affixing a 700-pound steel beam to a bucket of a backhoe when the
backhoe shifted, causing the beam to come loose and it hit the
ground and bounced up and struck the plaintiff. The beam was being
prepared to be placed on a truck for transport to the construction
site 12 miles away. The court noted that cases extending the Labor
Law to injuries sustained at the work site while handling materials
essential to construction are distinguishable by such factors as
the physical proximity and common ownership and operation of the
premises. The court refused to extend the Labor Law and dismissed
the section 240(1) and 241(6) causes of action because the
“fabrication performed and loading of steel beams onto a truck for
transporting some 12 miles away at a facility that is independently
owned and operated would be an untoward extension of the protection
afforded by the Legislature . . .”
Practice Note: Plaintiff was engaged in construction work within
the meaning of the section 240(1) or in a construction area under
§241(6).
Topic Tags: Application of Labor Law, Property Owner
3. 5182 John Cordeiro v. TS Midtown Holdings, LLC, 87 A.D.3d 904,
931 N.Y.S.2d 41 (1st Dept. 2011) (Sept. 15, 2011). Plaintiff was
injured when the latch on doors to a hatchway opened unexpectedly
and he fell to the floor below. At the time of his injury,
plaintiff was preparing to remove elevator equipment by hoisting it
through the hatchway door. The court granted the plaintiff’s motion
under §240(1) and stated that although the doors through which the
plaintiff fell were a permanent fixture of a building, they were
not normal appurtenance, but rather, an access opening used to
hoist materials. The court rejected the defendants’ sole proximate
cause argument. The court did not dismiss the plaintiff’s §241(6)
claim even though not properly raised below. With respect to the
§200 claim the court found that there were issues of fact as to
whether the defendant had notice of the dangerous or defective
condition.
6 • Winter 2012 LABOR LAW UPDATE Winter 2012 • 7LABOR LAW
UPDATE
Practice Note: Not all jurisdictions find that there is a §240(1)
violation where permanent structure is involved.
Topic Tags: Actual or Constructive Notice of Dangerous Conditions,
Permanent Fixture, Sole Proximate Cause
4. Luis Medina v. City of New York, 87 A.D.3d 907, 929 N.Y.S.2d 582
(1st Dept. 2011)(Sept. 15, 2011). Plaintiff, an inspector, was
injured while inspecting a subway rail. At the time of his injury,
plaintiff was standing on the track bed when a 12-foot section of
the rail which was unsecured and weakened by saw cuts, suddenly
sprang upward and fell, injuring his leg. The court affirmed the
judgment on the verdict in favor of the defendant, which held that
the plaintiff’s work was routine maintenance. The court also noted
that the rail was propelled by kinetic energy and did not directly
flow from gravity. With respect to the plaintiff’s §241(6) claim,
the court held that the claim should not have been dismissed
because the plaintiff established that a specific regulation of 12
N.Y.C.R.R. Part 23 was violated.
Practice Note: This case provides an interesting twist in
situations where the plaintiff was struck by an object.
Topic Tags: Application of Force or Gravity to an Object or Person,
Routine Maintenance
5. Omrie Morris v. The City of New York, 87 A.D.3d 918, 929
N.Y.S.2d 585 (1st Dept. 2011)(Sept. 22, 2011). Plaintiff was
injured when a temporary wooden step which he was standing shifted.
At the time of his injury, the plaintiff and a co-worker were
moving on an air tank up a concrete stairway from the basement to
the first floor. The court found there was an issue of fact as to
whether the temporary step constituted a device to protect an
employee against an elevated related risk. The court held that the
Industrial Codes relied on by the plaintiff concerning slipping and
tripping hazards (12 N.Y.C.R.R. §§23-1.7(d)(e)(1) and (2) and (f)
and temporary stairway construction (§23-2.7(b)) were
specific.
Practice Note: The temporary nature of a device utilized by an
insured worker can effect the viability of a §240(1) claim.
Topic Tags: Failure to Provide Protection, Industrial Code
Regulations
6. John Della Porta v. East 51st Street Development Co., LLC, 2011
N.Y. App. Div. LEXIS 7137 (Oct. 18, 2011). Plaintiff was injured as
a result of the collapse of a crane. The court noted:
(1) Defendant failed to raise an issue of fact on proximate
cause.
(2) The existent of unused safety devices at the worksite can only
bar recovery if the devices were readily available at the worksite
and plaintiff knew that they were available and expected to use
them and chose not to use them “for no good reason.”
The court also rejected the defendant’s argument based on
superseding cause of the accident.
Practice Note: The court also considered the liability of the
construction manager under §240(1). Here the construction manager
under the contract had supervisory authority and control over the
project which established liability.
Topic Tags: Authority or Control Over Work, Defective or Inadequate
Safety Equipment, Superseding Cause
7. 4991-Walter Reavely v. Yonkers Raceway Programs, Inc., 2011 N.Y.
App. Div. LEXIS 7189 (Oct. 20, 2011). Plaintiff was injured when he
was attempting to prevent himself from falling into a trench.
During the sequence of the operations he was performing, a saw he
was using struck his hand and injured him. The majority of the
court, in this 5-2 decision, held that §240(1) was violated and
aligned itself with Runner v. New York Stock Exch., Inc., 13 N.Y.3d
(2009) which held:
the touchstone of any Labor Law §240(1) is ‘whether the harm flows
directly from the application of the force of gravity.’
If the plaintiff is injured by a gravity related accident, in order
for §240(1) to apply there is not any need to actually fall. The
two dissenting judges concluded that there was not any proof to
deduce that “plaintiff’s injury was either the result of a
significant height differential or the proximate result of the
effect of gravity … .” The majority also held defendants liable
under §241(6) because every hazard such as a trench must be covered
or have safety railings.
Practice Note: The trench played a role in causing the plaintiff to
react the way he did (i.e. attempting to prevent his fall).
Topic Tags: Application of Force or Gravity to an Object or Person,
Failure to Provide Protection, Significant Elevation
Differential
8. Ramsey Henriquez v. New 520 GSH, LLC, 931 N.Y.S.2d 312 (1st
Dept. 2011)(Oct. 27, 2011). Plaintiff, an elevator maintenance
mechanic, was injured when the elevator car in which he was riding
rapidly descended to the bottom of the elevator shaft. Just prior
to the descent, the plaintiff and co-worker were riding the
elevator up to consult with an engineer about the problem with the
car. The court dismissed the Labor Law §200 claim because the owner
of the premises had no responsibility under its contract with
plaintiff’s employer to one hurt through a dangerous conditions
that was undertaken to fix.
Practice Note: The contract provided that the employer had a broad
range of services and the duty to “cover a complete maintenance
service in every respect.”
Topic Tags: Dangerous Conditions, Property Owner
9. Michael Calogrides v. Spring Scaffolding, Inc., 2011 N.Y. App.
Div. LEXIS 7538 (Nov. 1, 2011). The court dismissed the §§240(1)
and 241(6) claim because the defendant was not an owner or
contractor or agent for the purposes of these statutes. The section
200 and common law causes of action were
8 • Winter 2012 LABOR LAW UPDATE Winter 2012 • 9LABOR LAW
UPDATE
dismissed because there was not any evidence that the defendant was
negligent or the work was defective or that any duty to the
plaintiff was breached.
Practice Note: The court cited Morales v. Spring Scaffolding, Inc.,
24 A.D.3d 42 (2005) for the liability of the owner, etc.
Topic Tags: Application of Labor Law, Common Law Negligence
10. Hector Alvira v. Residential Management, 2011 N.Y. App. Div.
LEXIS 7553 (Nov. 1, 2011). The court held that there were triable
issues of fact as to whether plaintiff was defendant’s special
employee and whether plaintiff was engaged in cleaning when he fell
from a ladder.
Practice Note: The court also noted that there is a “strong public
policy in favor of resolving cases on the merits.” This is true on
motions to renew.
Topic Tags: Routine Maintenance, Special Employee
11. In re East 51st Street Index v. East 51 Street Development, et
al., 2011 N.Y. App. Div. LEXIS 7547 (Nov. 1, 2011). The court noted
that the plaintiff was injured as a result of the collapse of a
crane which established a prima facie Labor Law §240(1) claim. The
court rejected the defendant’s proximate cause argument and
noted:
“… there was no evidence that plaintiff knew where to find the
safety devices that defendants argue were readily available, or
that he knew he was expected to use them but chose not to do so …
.”
Also, the court rejected the defendants’ superseding cause defense
and stated “. . . the rigger’s conduct was not ‘so far removed from
any conceivable violation of the statute’ . . .”
Practice Note: The court also rejected the construction manager’s
claim that it was not liable because the contract gave it
supervisory authority and control over the project.
Topic Tags: Authority or Control Over Work, Failure to Provide
Protection, Prima Facie Burden, Superseding Cause
12. Jean Allen v. The City of New York, 2011 N.Y. App. Div. LEXIS
7522 (Nov. 1, 2011). The plaintiff, a traveling carnival worker,
was injured while installing pre-built panels which were a back
drop for an amusement site. The court dismissed the §240(1) claim
as the plaintiff was not engaged in erection of a
“structure.”
Practice Note: Not all activities on a job site are protected under
the Labor Law.
Topic Tags: Application of Labor Law, Protected Activity
13. Jairo Martinez v. 342 Property LLC, 932 N.Y.S.2d 454 (1st Dept.
2011)(Nov. 3, 2011). At issue on this appeal was whether the
general contractor was entitled to summary judgment against the
safety management service company that it contracted with. The
court dismissed the general contractor claim and noted that even
though the safety management services company advised the general
contractor in safety matters and had the authority to stop unsafe
work practices because it did not have control over the conduct of
work at the project, there was no liability under §200 or common
law negligence. Also, the contract provided that the safety
management service company was required to indemnity the general
contactor for the safety management company negligence. However,
there was no proof of such negligence and, therefore, no duty to
indemnify.
Practice Note: Contracts are important in assessing the duties and
obligation of the entities on a construction site.
Topic Tags: Authority or Control Over Work, Common Law
Indemnification, Common Law Negligence
14. 5926-Stanislaw Bajor v. 75 East End Owners, Inc., 932 N.Y.S.2d
40 (1st Dept. 2011)(Nov. 3, 2011). Plaintiff was working on a
renovation project when he severed his thumb on a table saw that
lacked safety devices. The court granted summary judgment to the
plaintiff under §241(6). The court also held that there was not any
comparative negligence established.
Practice Note: The court also rejected the owner’s common law
indemnification claim as the general contractor did not supervise
or control the work being performed. General supervision and
coordination are insufficient.
Topic Tags: Comparative Negligence, Defective or Inadequate Safety
Equipment
15. Robert Sands Cassidy v. Highrise Hoisting & Scaffolding,
Inc., 932 N.Y.S.2d 456 (1st Dept. 2011) (Nov. 10, 2011). At the
time of his injury, the plaintiff was on a holding dock waiting for
a hoist. As he was leaning against a safety rail, the rail gave
way, causing him to fall off the elevated dock. The court held that
the owner and general contractor was liable under §240(1). The
§241(6) claim was dismissed because the plaintiff failed to plead
any applicable Industrial Code violation under 12 N.Y.C.R.R. Part
23. Further, the court dismissed the §200 and common law negligence
claim because defendants had no notice of the unsafe
condition.
Practice Note: The court also considered when an expert opinion
should be considered in cases of this nature. Such opinions cannot
be based on personal beliefs.
Topic Tags: Actual or Constructive Notice of Dangerous Conditions,
Common Law Negligence, Defective or Inadequate Safety Equipment,
Industrial Code Regulations
10 • Winter 2012 LABOR LAW UPDATE Winter 2012 • 11LABOR LAW
UPDATE
16. Bruce Grilikhes v. International Tile & Stone Show Expos.,
2011 N.Y. App. Div. LEXIS 8801 (Dec. 13, 2011). The court dismissed
the plaintiff’s section 241(6) claim against one defendant because
the plaintiff was a special employee of the defendant. In defining,
a special employee the court noted:
“A worker may be deemed a special employee where he or she is
‘transferred’ for a limited time of whatever duration to the
service of another … .”
In such a situation a claim against the special employer is barred
by Workers Compensation Law §29.
With respect to another defendant, the court dismissed the
plaintiff’s claim because that entity was not an owner.
Specifically, the court focused on the entity’s lack of right to
insure that proper safety practices were followed and lack of
control over the plaintiff or his work.
Practice Note: In a special employee situation, such factor as to
who told the plaintiff what to do and when and where to do it is
important.
Topic Tags: Authority or Control Over Work, Special Employee,
Workers’ Compensation Insurance
SECOND DEPARTMENT
1. Thomas Dalvano v. Racanelli Construction Co., Inc., 86 A.D.3d
550, 926 N.Y.S.2d 658 (2d Dept. 2011)(July 12, 2011). The
plaintiff, an ironworker, was injured when he fell while descending
a ladder that was missing a rung. No one knew who owned the ladder.
At issue on this appeal was whether the defendants were liable
under §200 and common law indemnification. The court held that
there were issues of fact as to whether the defendants had control
over the work site and either created or had actual or constructive
notice of the dangerous or defective condition. The court also
refused to grant the defendants’ contractual indemnification
claim.
Practice Note: This decision cites a list of cases on the
applicable liability standards under §200.
Topic Tags: Actual or Constructive Notice of Dangerous Conditions,
Authority or Control Over Work, Common Law Indemnification,
Contractual Indemnification, Defective or Inadequate Safety
Equipment
2. Arcadio Vasquez v. George Minadis, 86 A.D.3d 604, 927 N.Y.S.2d
620 (2d Dept. 2011)(July 19, 2011). Plaintiff was injured when he
fell while re-entering his apartment from the roof through a
window. Prior to his fall to the ground, plaintiff had accompanied
a roofer to inspect the roof for leaks. The court dismissed the
§240(1) claim because the work plaintiff was performing was merely
investigating and not employed to perform an activity protected by
the Labor Law (erection, demolition, repairing, altering, painting,
changing, or pointing). The §241(6) claim was dismissed because the
plaintiff was not engaged in construction, excavation, or
demolition. With respect to the §200 and common law negligence
cause of action, the court did not dismiss these because there was
an issue of fact as to whether the defendants created the dangerous
condition (i.e. railing off access to the roof).
Practice Note: Note all falls from heights are protected by the
Labor Law.
Topic Tags: Application of Labor Law, Common Law Negligence,
Failure to Provide Protection, Protected Activity
3. Patrick Henry v. Eleventh Avenue, L.P., 87 A.D.3d 523, 928
N.Y.S.2d 72 (2d Dept. 2011)(Aug. 2, 2011). Plaintiff fell from the
roof of a shanty that was located in the basement of a building.
The first floor ceiling/slab was located 4 to 5 feet above his
head. Plaintiff struck his head on something, which caused him to
fall 8 feet. The court held that the plaintiff’s fall is the type
of elevation-related hazard that is contemplated by §240 and
granted plaintiff’s motion for summary judgment. The court rejected
the “superseding cause” defense.
Practice Note: Under the “superseding cause” defense, defendant
must show that the facts were so extraordinary or so
attenuated.
Topic Tags: Significant Elevation Differential, Superseding
Cause
4. Gilbert Gonzalez v. TJM Construction Corp., 87 A.D.3d 610, 928
N.Y.S.2d 344 (2d Dept. 2011)(Aug. 16, 2011). Plaintiff, a mason,
working on the renovation of a building, was struck and injured by
a brick that fell “out of no-where.” The court denied plaintiff’s
motion for summary judgment under §240(1) and noted that the
plaintiff failed to eliminate all questions of fact as to whether
the brick was an object that required securing. Also, the court
dismissed the defendants’ motion for summary judgment under
§§240(1) and 241(6) and stated:
1. Issue of fact as to whether defendant had sufficient authority
to supervise and control plaintiff’s work.
2. Defendant failed to prove that plaintiff was standing in an area
not normally exposed to falling materials or objects.
3. There were issues of fact as to whether the brick required
securing.
Practice Note: Not all falling objects fall within the protection
afforded by the Labor Law.
Topic Tags: Authority or Control Over Work, Failure to Provide
Protection, Falling Objects
5. Aleksey Guryev v. Gregory Tomchinsky, 87 A.D.3d 612, 928
N.Y.S.2d 574 (2d Dept. 2011)(Aug. 16, 2011). Plaintiff was injured
when a nail from a nail gun he was using ricocheted and struck his
eye. At the time of his injury, the plaintiff was involved in the
renovation of a condominium unit. The plaintiff sued the
Condominium Board and Trump Corporation (condominium defendants)
and various contractors under §241(6) and §200 and common law
negligence. The court dismissed the actions against the condominium
defendants because they were not owners or agents of the
owner.
12 • Winter 2012 LABOR LAW UPDATE Winter 2012 • 13LABOR LAW
UPDATE
Practice Note: An owner is defined as the party who, as a practical
matter, has the right to hire or fire subcontractors and to insist
that proper safety devices are followed. It is the right to control
not the actual exercise or non-exercise of control.
Topic Tags: Authority or Control Over Work, Common Law Negligence,
Property Owner
6. John Gray v. City of New York, 87 A.D.3d 679, 928 N.Y.S.2d 759
(2d Dept. 2011)(Aug. 23, 2011). Plaintiff, a union steward, was
working for a general contractor and was injured when he stepped on
a wooden ramp while alighting from a truck. The ramp separated
underneath his feet, which caused him to fall. The court dismissed
the §200 and common law negligence causes of action because the
plaintiff failed to establish that the defendant created the
dangerous condition or had actual or constructive notice of the
existence of the condition. Further, the defendants did not direct
or control the plaintiff’s work. With respect to the §241(6) cause
of action, the plaintiff failed to allege a specific standard of
conduct as opposed to a general reiteration of common-law
principles.
Practice Note: Under §241(6), plaintiff must plead and prove a
violation of specific/concrete regulations under 12 N.Y.C.R.R. Part
23.
Topic Tags: Actual or Constructive Notice of Dangerous Conditions,
Authority or Control Over Work, Dangerous Conditions
7. Edward Wysk v. New York City School Construction Authority, 87
A.D.3d 1131, 930 N.Y.S. 2d 60 (2d Dept. 2011)(Sept. 27, 2011). The
plaintiff was employed by a subcontractor that had been hired to
remove the old roof and install a new one. Plaintiff was injured
when he was struck by a bucket that fell from a hoistway. At the
time of his injury, plaintiff was a foot from the hoistway. The
court denied plaintiff’s motion for summary judgment because he
failed to show that his injuries were proximately caused by the
alleged violation of §§240(1), (5) and (6).
Practice Note: While an object fell striking the plaintiff, a
falling object does not automatically establish liability under the
Labor Law.
Topic Tags: Application of Labor Law, Falling Objects, Sole
Proximate Cause
8. Daniel Schick v. 200 Blydenburgh, LLC, 930 N.Y.S.2d 604 (2d
Dept. 2011)(Oct. 4, 2011). Plaintiff, at the time of his injury,
was standing on a ladder which shifted up and down and the ladder
fell out causing him to fall. The ladder slipped or shifted due to
sand, dirt, or dust on the floor. Plaintiff was installing wires to
the structure. The court denied defendants’ motion for summary
judgment under §240(1) because there were issues of fact as to
whether the plaintiff’s work fell under an enumerated activity
(“altering”) of §240(1) and whether plaintiff was performing
construction within §241(6). The court further denied plaintiff’s
motion because issues of fact existed concerning:
1. The height at which plaintiff was working
2. Condition of the floor
3. Condition of the ladder
4. Did the positioning of the ladder constitute sole proximate
cause?
Practice Note: The actions or inactions of the worker can
constitute sole proximate cause provided that there are no other
causes relevant to a §240(1) violation.
Topic Tags: Alteration or Repair, Sole Proximate Cause, Unsecured
Ladder
9. Jeffrey Berman v. Franchised Distributors, Inc., 930 N.Y.S.2d
891 (2d Dept. 2011)(Oct. 11, 2011). Plaintiff was power washing and
painting the exterior of a commercial building. He was working from
an A-frame ladder of which he placed two footings on the grass and
two footings on an asphalt sidewalk. The ladder moved away from the
building because the footing sunk into the ground, which had gotten
wet from the power washing. Plaintiff fell from the eighth rung of
the ladder. While the plaintiff established a prima facie case
under §240(1), the defendants raised triable issues of fact as to
whether plaintiff was provided proper safety devices and whether
the plaintiff’s conduct, including the consumption of alcohol was
the sole proximate cause of his injuries.
Practice Note: Contributory negligence is not a defense to a
§240(1) claim; however, the sole proximate cause defense can bar
such a claim.
Topic Tags: Failure to Provide Protection, Prima Facie Burden, Sole
Proximate Cause, Unsecured Ladder
10. Patryk Janiak v. Sheila Ewall, 931 N.Y.S.2d 344 (2d Dept.
2011)(Oct. 18, 2011). Plaintiff, the owner of his own contracting
company, was injured when he fell from an A-frame ladder as he was
removing a sleeve of an air conditioning unit. The court denied
defendant’s motion for summary judgment because of the lack of
evidence that the ladder afforded proper protection or the
plaintiff’s own conduct was the sole proximate cause of plaintiff’s
injuries.
Practice Note: Where a plaintiff establishes a prima facie case,
the defendant must present proof in admissible form that creates
questions of fact.
Topic Tags: Failure to Provide Protection, Prima Facie Burden, Sole
Proximate Cause, Unsecured Ladder
11. Michael J. Harrison v. State of New York, 2011 N.Y. App. Div.
LEXIS 7458 (Oct. 25 2011). Plaintiff and co-worker were moving a
150 to 200 lb. generator from a pier to the deck of a boat. The
generator fell 5 ½ to 6 feet and injured the plaintiff. The court
held that the 5 ½ to 6 foot elevation created a sufficient
elevation-related risk to trigger liability under §240(1) and
rejected the de minimis height
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argument. The court dismissed the §241(6) cause of action because
the Industrial Code provision on which the plaintiff relied on were
not applicable. The court dismissed the §200 and common law causes
of action because the defendant lacked sufficient authority to
supervise or control plaintiff’s work.
Practice Note: In reaching its decision on the §240(1) claim, the
court cited Narducci, 96 N.Y.2d 259 and Runner, 13 N.Y.3d
599.
Topic Tags: Authority or Control Over Work, Elevated Risk,
Industrial Code Regulations
12. Leonardo Gonzalez v. AMCC Corp., 931 N.Y.S.2d 415 (2d Dept.
2011)(Oct. 25, 2011). Plaintiff, an apprentice electrician was
injured when he fell from an unsecured A-frame ladder that shifted.
The court granted the plaintiff’s summary judgment under §240 and
noted, that because the ladder was not secured to something stable,
not checked or not wedged, it did not provide proper protection.
The court rejected the defendant’s sole proximate cause
argument.
Practice Note: Once plaintiff establishes a prima facie entitlement
to liability under §240(1), the defendant must raise triable issues
of fact; otherwise, liability will be established as a matter of
law.
Topic Tags: Sole Proximate Cause, Unsecured Ladder
13. Joseph Felix v. Independent Savings Bank, 932 N.Y.S.2d 719 (2d
Dept. 2011)(Nov. 15, 2011). Plaintiff fell as a result of the
wheeled scaffold falling into a hole. The court held that the
plaintiff established a prima facie case and defendant failed to
raise a triable issue of fact. Therefore, plaintiff’s motion for
summary judgment under §240(1) was granted.
Practice Note: While all the facts are not set forth in the
decision, it appears that the wheels on the scaffold may not have
been locked.
Topic Tags: Defective or Inadequate Safety Equipment, Prima Facie
Burden
14. Jigar Jamindar v. Uniondale Union Free School District, 2011
N.Y. App. Div. LEXIS 8723. Plaintiff was injured when he fell
approximately 25 feet from the top of a scissor lift. The scissor
lift fell over after being hit by a portion of the air duct that
the plaintiff was removing from an air conditioning unit. The court
rejected the defendant’s sole proximate cause argument. The court
on this appeal also considered issues involving common law
contribution and indemnification and contractual indemnification
claims between the defendants.
Practice Note: Where one entity’s liability is purely statutory and
vicarious that entity is entitled to common law indemnification.
Also, indemnification is not allowed where the plaintiff did not
sustain a grave injury.
Topic Tags: Common Law Indemnification, Contractual
Indemnification, Sole Proximate Cause
15. Andrew Torres v. Forest City Ratner Companies, LLC, 2011 N.Y.
App. Div. LEXIS 8209 (Nov. 15, 2011). Plaintiff, a sheet metal
worker, after placing his tools in the gang box and while working
toward the building exit, slipped on a door that was lying on the
floor, which caused him to fall. The court granted the plaintiff’s
motion for summary judgment under §241(6). The door was not an
integral part of the plaintiff’s work. The court also noted that
defendant failed to establish that the door that was resting on
loose pipes was not a tripping or other hazard and was a passageway
under 12 N.Y.C.R.R. §23-1.7(e).
Practice Note: What the plaintiff and his co-workers observed about
the job site conditions and work was critical to the court’s
decision.
Topic Tags: Dangerous Conditions
16. Jeffrey Szczepanski v. Dandrea Construction Corp., 2011 N.Y.
App. Div. LEXIS 8731 (Dec. 6, 2011). Plaintiff was working on a
construction project and he was injured when he fell from a beam.
At issue on this appeal was the application of the one and
two-family dwelling exemption. The court refused to apply the
exception as there was a triable issue of fact as to whether the
homeowner exercised the requisite direction and control over the
construction of the dwelling. Similarly, the §200 and common law
negligence claims were not dismissed. The common law
indemnification between the defendants was denied because plaintiff
did not sustain a grave injury.
Practice Note: The one and two-family dwelling exemption was
“enacted to protect those who, lacking business sophistication,
would not know or anticipate the need to obtain insurance to cover
them against absolute liability … .”
Topic Tags: Authority or Control Over Work, Grave Injury, One- or
Two- Family Dwelling Exemption
17. Daniel Vella v. One Bryant Park, LLC, 2011 N.Y. App. Div. LEXIS
8740 (Dec. 6, 2011). Plaintiff, a site-safety observer on a
construction project, fell and was injured while descending the
last step of a stairway, which was twice the height of the other
steps. Also, the handrail did not extend to the last step and
consequently he could not steady himself. The plaintiff conceded
that defendant’s motion for summary judgment should have been
granted under §240(1). The court denied defendant’s motion under
§200 and common law negligence because defendant failed to raise an
issue of fact as to whether it had actual or constructive notice of
the dangerous condition.
Practice Note: Defendants failed to submit evidence that the
dangerous condition did not exist for a sufficient length of time
to discover and remedy.
Topic Tags: Actual or Constructive Notice of Dangerous Conditions,
Common Law Negligence, Defective or Inadequate Safety
Equipment
18. Jose Reyes v. Camille Khan, 2011 N.Y. App. Div. LEXIS 8952
(Dec. 13, 2011). Plaintiff was injured when he fell from the ladder
and contended that the proximate cause of the accident was the
placement
16 • Winter 2012 LABOR LAW UPDATE Winter 2012 • 17LABOR LAW
UPDATE
of the subject ladder on loose soil and/or failure to adequately
secure the ladder. Defendant contended that the ladder afforded
proper protection and that plaintiff’s own performance of the work
in an unnecessarily danger and improper manner was the sole
proximate cause. The court held that there was a triable issue of
fact by the competing submissions.
Practice Note: In order to raise an issue of fact, the party must
submit evidence in admissible form. Bold conclusions are
insufficient.
Topic Tags: Sole Proximate Cause, Unsecured Ladder
19. German Pacheco v. Halstead Communications, Ltd., 2011 N.Y. App.
Div. LEXIS 9119 (Dec. 20, 2011). At issue on this appeal was the
application of the one-or two-family dwelling exemption to §240(1)
and 241(6). The court granted the defendant’s motion for summary
judgment because plaintiff failed to raise issues of fact on:
1. Whether the owner directed or controlled plaintiff’s work
or
2. Whether defendant was not a one-or two-family dwelling or that
it was used for commercial purposes.
The court also dismissed the §200 and common law causes of action
as defendant did not direct or control the work.
Practice Note: Plaintiff was not allowed additional discovery
because there was not any proof that discovery was necessary (i.e.
mere hope or speculation is insufficient).
Topic Tags: Authority or Control Over Work, Common Law Negligence,
One- or Two-Family Dwelling Exemption
20. Isidoro Melchor v. Sukhjinder Singh, 2011 N.Y. App. Div. LEXIS
9113 (Dec. 20, 2011). Plaintiff was injured when he fell from a
ladder while laying bricks. The ladder had old and worn feet; was
not secured; no one was holding it; and plaintiff had put small
blocks to prevent it from moving. The court granted the plaintiff’s
motion under §240(1). In reaching its decision the court rejected
the sole proximate cause defense and noted “… if the plaintiff is
solely to blame for the injury, it necessarily means that there has
been no statutory violation.” The ladder was defective in this case
and was unsecured, which was a substantial factor in causing the
plaintiff’s injuries. The court also granted plaintiff’s motion
under §241(6) because there were violations of explicit and
concrete provisions of 12 N.Y.C.R.R. Part 23.
Practice Note: This cause provides a detailed analysis of the
standards and burden of proof applicable to §§240(1) and 241(6)
claims.
Topic Tags: Sole Proximate Cause, Unsecured Ladder
THIRD DEPARTMENT
1. John Gadani v. DeBrino Caulking Associates, Inc., 86 A.D.3d 689,
926 N.Y.S.2d 724 (3d Dept. 2011) (July 7, 2011). Plaintiff was
injured when he slipped and fell on snow at a construction site.
The case went to trial and there were three previous to this
appeal. At issue on this appeal was the liability between the
fourth-party plaintiff and the fourth-party defendant. On the third
trial the jury found the fourth-party plaintiff was not negligent
and the fourth-party defendant was also not negligent. The court in
this decision held that the fourth-party plaintiff’s negligence
claim should not have been dismissed.
Practice Note: There are three previous appeals and the Records and
Brief should be reviewed to determine the overall issues
involved.
Topic Tags: Dangerous Conditions
2. Michael D. Davis v. Wyeth Pharmaceuticals Inc., 86 A.D.3d 907,
928 N.Y.S.2d 377 (3d Dept. 2011) (July 28, 2011). Plaintiff and a
co-worker were pushing and pulling a 1000 lb. filtration unit
horizontally across the floor. They had previously raised the unit
with two pallet jacks 8 to 10 inches off the floor. Plaintiff
slipped and grabbed the unit, the unit tipped over and landed on
the plaintiff’s leg. The court dismissed the §240(1) cause of
action and noted:
… the object that resulted in plaintiff’s injury was not being
hoisted or secured … or otherwise being moved vertically from one
elevation to another ... .
The object was being moved horizontally and was not an elevation
differential.
Practice Note: Would the Wilinski v. 334 East 92nd Housing
Development Fund, 18 N.Y.3d 1 (2011) have altered this court’s
ruling? Stay tuned!
Topic Tags: Significant Elevation Differential
3. Jeremy Morris v. C & F Builders, Inc., 87 A.D.3d 792, 928
N.Y.S.2d 154 (3d Dept. 2011)(Aug. 4, 2011). The plaintiff was
injured when he fell through an opening in the floor where a
staircase was to be installed. The court dismissed the §§240(1) and
241(6) claims against the prime contractor because it had no
authority to supervise or control the work being performed at the
time of the injury. The §200 claim was dismissed because the
defendant lacked the authority to control the activity bringing
about the injury.
Practice Note: Control of the work and no duty, contractual or
otherwise, to enforce safety standards are the key elements.
Topic Tags: Authority or Control Over Work
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4. Ricky Landon v. Duane Austin, 931 N.Y.S.2d 428 (3d Dept.
2011)(Oct. 20, 2011). Plaintiff injured his leg when his sleeve got
stuck on the vapor barrier he was installing and he fell from the
roof of a single-family residence. Plaintiff was temporally
employed by defendant to remove shingles from the roof and to
install a new vapor barrier and underlayment. At issue on this
appeal was the application of the one and two-family dwelling
exemption. The court noted that:
The availability of the exemption hinges upon ‘the site and purpose
of the work, a test which must be employed on the basis of the
homeowners’ intentions at the time of the injury. . . .”
In this case the defendant intended to fix the residence up and
sell it which is a commercial and not a residential purpose and
therefore the court refused to apply the exemption. Because the
defendant failed to provide safety devices and this was the
proximate cause of plaintiff’s injuries, plaintiff was entitled to
summary judgment under §240(1). The court also held that the
plaintiff relied upon sufficiently specific regulations under 12
N.Y.C.R.R. Part 23 and therefore, established a violation of
§241(6).
Practice Note: What about the argument that plaintiff’s accident
was caused by an integral part of his work and not the failure to
provide safety devices?
Topic Tags: Failure to Provide Protection, One- or Two-Family
Dwelling Exemption
5. Bruce Battease v. Donald Harrington, 2011 N.Y. App. Div. LEXIS
8527 (Dec. 1, 2011). Plaintiff was injured when he fell from a
scaffold on a barn. At issue on this appeal was the application of
the one and two-family dwelling exemption. The court, applying the
“site and purpose” test, held that the defendants had not
established, as a matter of law, their entitlement to the
exemption. Specifically, the court considered the fact that in
addition to storing personal belongings in the barn, the defendant
also had dog pens in the barn and bred dogs. There were questions
of fact as to whether the defendant was operating a commercial
enterprise.
Practice Note: Also, the court noted that the work being performed
was designed to provide cover from the elements for the dog.
Topic Tags: One- or Two-Family Dwelling Exemption
6. Daniel A. Gatto, Jr. v. Clifton Park Senior Living, LLC, 2011
N.Y. App. Div. LEXIS 9068 (Dec. 22, 2011). Plaintiff, at the time
of his injury, was using his own stilts to tape a 9-foot ceiling
when the stilts collapsed. He was 1 ½ feet off the floor, which the
court held was a height differential that created an
elevation-related hazard within the purview of §240(1). The court
rejected the defendant’s recalcitrant worker defense because the
procedure plaintiff was using was feasible and appropriate.
Practice Note: The plaintiff was not instructed to use another
device nor did he refuse to use available safety equipment.
Topic Tags: Recalcitrant Worker, Significant Elevation
Differential
FOURTH DEPARTMENT
1. Jason Thome v. Benchmark Main Transit Associates, LLC, 86 A.D.3d
938, 927 N.Y.S.2d 260 (4th Dept. 2011)(July 8, 2011). In a 5-1
decision, the majority denied the plaintiff’s motion for summary
judgment under §240(1). Plaintiff was injured when a scissor lift
turned over. While the plaintiff met his initial burden of proof
under §240(1), the court held that there were issues of fact as to
whether plaintiff’s actions were the sole proximate cause of his
injuries. The specific question was whether the injured plaintiff’s
fall resulted from his own misuse of the safety device and whether
such conduct was the sole proximate cause. One concurring judge
held that the plaintiff failed to meet his initial burden and noted
that none of the safety devices enumerated in the statute would
have prevented the accident. Also, that judge stated that neither
the plaintiff nor the defendant were entitled to summary judgment.
The one dissenting judge held that there was no triable issue of
fact on the sole proximate cause defense and that the evidence
submitted by the defendants did not rebut the plaintiff’s prima
facie case. The evidence merely established contributory negligence
which is not a defense to a §240(1) claim.
Practice Note: This case provides an interesting analysis of the
sole proximate cause defense where there is conflicting evidence
and the impact of that evidence.
Topic Tags: Prima Facie Burden, Sole Proximate Cause
2. Juan Mazurett v. Rochester City School District, 930 N.Y.S.2d
742 (4th Dept. 2011)(Oct. 7, 2011). Plaintiff, employed by the
general contractor, was injured when he fell from a collapsing
scaffold at a construction site. At the time of the accident, the
plaintiff was attempting to climb the scaffold provided by his
employer. The plaintiff established a prima facie case and the
defendant failed to raise a triable issue of fact on the sole
proximate cause defense. The court noted that the plaintiff was not
a recalcitrant worker whose own actions were the sole proximate
cause of the accident.
Practice Note: Even though the plaintiff was instructed to use a
ladder to ascend the scaffold, there was not any evidence that
plaintiff refused to use a particular scaffold or ladder that was
provided to him.
Topic Tags: Prima Facie Burden, Recalcitrant Worker, Sole Proximate
Cause
3. Joshua Brownell v. Blue Seal Feeds, Inc., 932 N.Y.S.2d 623 (4th
Dept. 2011)(Nov. 10, 2011). Prior to his injury, the plaintiff had
climbed onto a four-foot pile of rebar that was stacked on a truck.
As he was swinging his leg over the pile, the pile shifted or
snapped and the plaintiff was thrown off the truck. The court
dismissed the §240(1) cause of action and noted:
1. Plaintiff’s fall was not an elevation-related risk that calls
for protection under §240(1).
2. A flatbed truck does not constitute an elevated work surface
under §240(1).
20 • Winter 2012 LABOR LAW UPDATE Winter 2012 • 21LABOR LAW
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3. Case involved the ordinary dangers of a construction site.
4. Plaintiff was not struck by a falling object because the rebar
swung horizontal.
5. Object was not being hoisted or secured.
With respect to another defendant, the court held that §240(1) was
inapplicable because that defendant was not a contractor or owner
or agent. Similarly, the §200 claim was dismissed that claim
because it applies to “land-owners and general contractors” which
this defendant was neither.
Practice Note: The common law negligence claim was not dismissed as
to one defendant because its employees may have been negligent in
bundling, loading or securing the rebar.
Topic Tags: Elevated Risk, Falling Objects
4. Wayne Sistrunk v. County of Onondaga, 2011 N.Y. App. Div. LEXIS
8251 (Nov. 18, 2011). Plaintiff was injured when he fell from a
40-foot extension ladder into a trench. The court denied both the
plaintiff’s and defendant’s motions for summary judgment because
there were issues of fact on the following:
1. Whether plaintiff was provided with appropriate safety
devices.
2. Whether plaintiff’s actions were the sole proximate cause.
3. Whether the condition of the ladder was a proximate cause of
plaintiff’s accident.
Practice Note: The simple fact that plaintiff fell from a ladder
does not automatically establish liability on the defendant.
Topic Tags: Failure to Provide Protection, Sole Proximate
Cause
5. Paul Hughes v. Murnane Building Contractor, Inc., 2011 N.Y. App.
Div. LEXIS 8276 (Nov. 18, 2011). The plaintiff was an employee of a
company hired to provide security at the construction site. At the
time of his injuries, the plaintiff was responding to a call
involving a worker that had fallen from an extension ladder into a
trench. As plaintiff was responding he got stuck in the mud and was
injured while he was trying to get out of the mud. Thereafter,
plaintiff discontinued his efforts to assist that worker. At issue
of this appeal was the application of the “danger invites rescue
doctrine.” The court concluded that it applied to the facts of this
case because the plaintiff followed a reasonable course of conduct
at the time, which was based upon his perception of danger and the
rescue effort. The court also held that plaintiff sufficiently
plead a §240(1) cause of action.
Practice Note: The application of the danger invites rescue
doctrine is extremely fact specific and cannot be based on “mere
suspicion of danger.”
Topic Tags: Danger Invites Rescue Doctrine, Dangerous
Conditions
6. Ryan D. Kirbis v. LP Ciminelli, 2011 N.Y. App. Div. LEXIS 9182
(Dec. 23, 2011). Plaintiff was injured when he fell from a 6-foot
ladder because the ladder “buckled” or “twisted” and then
“collapsed” because it was not so placed to give proper protection.
Defendant failed to raise an issue of fact and the court noted:
“Evidence that the ladder was structurally sound and not defective
is not relevant on the issue of whether it was properly placed …
.”
Practice Note: The court refused to allow additional discovery
because mere speculation of the impact of such discovery is
insufficient.
Topic Tags: Unsecured Ladder
7. Christopher M. Charney v. LeChase Construction, 2011 N.Y. App.
Div. LEXIS 9196 (Dec. 23, 2011). At the time of his injury, the
plaintiff, an ironworker, was part of a crew demolishing the
structural steel canopy. Specifically, the plaintiff was cutting a
steel beam. The crane would lift away the beam from the structure.
While in the process of connecting the beam to the structure, the
canopy collapsed and the plaintiff jumped 4 feet to the ground. The
court did not grant the motion of either the plaintiff or defendant
under §240(1) and noted:
1. The surface that plaintiff was working on was large and stable
and, even though 4 feet from the ground, was not a situation that
called for a safety device under §240(1).
2. However, liability is also premised on the collapse of a
structure.
The court also considered the contractual indemnification between
the defendant and third-party defendant and held the determination
was premature.
Practice Note: The court in reaching its decision cited to the
recent Court of Appeals decision Wilinski v. 334 E. 92nd Hous. Dev.
Fund Corp., 18 N.Y.3d 1 (2011).
Topic Tags: Defective or Inadequate Safety Equipment, Contractual
Indemnification
8. Edward Cunningham, III v. LeChase Construction, 2011 N.Y. App.
Div. LEXIS 9195. This case is a companion case to the Charney v.
LeChase case reported on immediately above.
9. Jeffrey DiPalma v. State of New York, 2011 N.Y. App. Div. LEXIS
9516 (Dec. 30, 2011). Plaintiff was injured when he was struck by a
skid box fell “only one or two feet” from a forklift. The court,
citing to Wilinski, 18 N.Y.3d 1 and Runner, 13 N.Y.3d 599 found
that plaintiff established liability under §240(1) and noted:
22 • Winter 2012 LABOR LAW UPDATE Winter 2012 • 23LABOR LAW
UPDATE
“Although the skid box fell only one or two feet before it struck
the claimant, in light of the weight of the skid box and its
contents as well as the potential harm that it could cause, it
cannot be said that the elevation was de minimus . . .” (Emphasis
added)
Practice Note: The experts retained in the case argued that the
failure to use a protective device was improper.
Topic Tags: Expert Retention, Significant Elevation
Differential
10. Joseph Byrd v. Frederick E. Roneker, 2011 N.Y. App. Div. LEXIS
9598 (Dec. 30, 2011). Plaintiff was injured when he fell from a
ladder while cutting a tree limb at a single family home. At issue
on this appeal was the application of the one-and two-family
dwelling exemption. The court specifically addressed the direction
and control issue and noted that “[t]here is no direction or
control of the owner informing the worker what work should be
performed, but there is direction and control of the owner
specifics how that should be performed … .” The court found that
the homeowner did not direct and control the work being performed
by the plaintiff.
Practice Note: The application of this exemption is extremely fact
specific and the assessment also involves whether the work is being
performed for commercial purposes.
Topic Tags: Authority or Control Over Work, One- or Two-Family
Dwelling Exemption, Property Owner
11. John T. Baker v. City of Buffalo, 2011 N.Y. App. Div. LEXIS
9543 (Dec. 30, 2011). Plaintiff was injured when his pant leg
snagged on a rebar, mesh, or jagged concrete protruding from the
ledge of an opening in a wall and he jerked backward and fell to
the floor. The court dismissed the §240(1) claim and held that the
plaintiff was faced with the usual and ordinary dangers of a
construction site and not the extraordinary elevation risk. The
court denied the motions pertaining to §200 and common law
negligence causes of action because there were issues of action as
to whether the defendant had actual or constructive notice of the
dangerous condition.
Practice Note: The §241(6) was dismissed as several regulations
under 12 N.Y.C.R.R. Part 23 were inapplicable. As to others the
regulations were held to be sufficiently specific.
Topic Tags: Actual or Constructive Notice of Dangerous Conditions,
Common Law Negligence, Elevated Risk
FEDERAL COURTS:
EastErn District of nEw York
1. Rodolfo Urena Corral v. The Outer Marker Global Steel, Inc.,
2011 U.S. Dist. LEXIS 107390 (Sept.
20, 2011). Plaintiff was injured when working on a large metal
frame airplane hangar while using a defective “hoist or lift.” It
is plaintiff’s claim that the lockout safety mechanism was broken
and the lift was activated inadvertently and the plaintiff was
pinned between the lift and the hangar. The court held §240(1) was
not applicable because the plaintiff did not fall from the aerial
lift; therefore his accident was not a result of an
elevation-related hazard. With respect to the plaintiff’s §241(6)
claim, the court dismissed the claim because plaintiff did not
assert a sufficiently specific violation of 12 N.Y.C.R.R. Part 23
nor is a defendant liable where the plaintiff failed to comply with
the regulation. The §200 claim was dismissed because the defendant
did not have control over the activity bringing about the injury
nor did the defendant have actual or constructive notice.
Practice Note: The court noted that it is appropriate to analyze
common law §200 claims simultaneously.
Topic Tags: Actual or Constructive Notice of Dangerous Conditions,
Authority or Control Over Work, Elevated Risk, Defective or
Inadequate Safety Equipment
2. Thomas P. Kenny v. The City of New York, 2011 U.S. Dist. LEXIS
109057 (Sept. 26, 2011). Plaintiff, at the time he was injured, was
performing demolition work and sued defendants under §§240(1),
241(6), 200, and common law negligence. At issue in this case was a
motion to strike a third-party complaint. Plaintiff argued:
… that questions surrounding coverage and indemnification, the
priority of Burlington’s [insurer] late disclaimer, and the
application of the anti- subrogation rule to the third-party
complaint, are merely incidental to the main question of liability,
and will unduly delay the resolution of the plaintiffs’ substantive
claims.
The court agreed and granted the plaintiffs’ motion to strike the
third-party complaint.
Practice Note: This decision outlines the standard applicable to a
motion to strike in the context of a Labor Law claim.
Topic Tags: Anti-Subrogation Rule, Common Law Negligence
3. Jose German Avelar v. J. Cotoia Construction, Inc., 2011 U.S.
Dist. LEXIS 126487 (Nov. 2, 2011). The court had previously denied
plaintiff’s motion to remand. Prior to that holding, the State
Court awarded the plaintiff a default judgment against the
defendant Congo Mission (a diplomatic body of the People’s Republic
of Congo). The judgment was docketed and recorded and plaintiff
attempted to enforce the judgment. The Congo Mission filed a motion
in this court to:
1. Dismiss for lack of personal jurisdiction. 2. Vacate the State
Court default, all attachments, liens and restraints.
The court held that the steps taken by the plaintiff to apprise
Congo Mission (“foreign state”) of the pendency of the instant
litigation did not comply with relevant procedures (Foreign
Sovereign
24 • Winter 2012 LABOR LAW UPDATE Winter 2012 • 25LABOR LAW
UPDATE
Immunities Act). Therefore, the court vacated the state court
default judgment. The court also granted Congo Mission’s motion to
vacate all liens, etc. Similarly, the court held that plaintiff
failed to acquire personal jurisdiction and the complaint was
dismissed.
Practice Note: This provides a procedural lesson on how to gain
jurisdiction and enforce and execute a judgment against a “foreign
state.”
Topic Tags: Jurisdiction
southErn District of nEw York
1. Joseph Dwyer v. Goldman Sacks, 2011 U.S. Dist. LEXIS 91943.
Plaintiff was injured when he stepped off his ladder onto a tile
that had been removed from the floor. He fell into the 18-inch-deep
opening where the tile had been removed. The court dismissed the
plaintiff’s §240(1) claim and noted:
1. The ladder did not malfunction.
2. Fall resulted from a separate hazard wholly unrelated to the
danger that brought about the need for the ladder in the first
instance — an unnoticed object on the floor.
3. The 18-inch-deep opening was not an elevation-related risk that
called for any of the protective devices.
4. As raised floors for computer wiring has increased, falls into
an unmarked opening in a raised floor is not protected under
§240(1).
The §241(6) claim was dismissed as it relates to several of
plaintiff’s allegations because the plaintiff did not allege and
prove a “specific, positive command” under 12 N.Y.C.R.R. Part 23. A
recitation of common law safety principles is not sufficient.
Therefore, the court dismissed the §241(6) claim as to certain
regulations and allowed that claim as to others. Concerning the
§200 and common law negligence claims, the court noted that
“[t]here are two types of section 200 claims: (1) those involving
the manner in which work was performed, and (2) those involving a
dangerous or defective condition at a work site.” The court
dismissed the §200 and common law negligence claims because under
either type the plaintiff failed to meet its burden.
Practice Note: This court also considered the contractual
indemnification claim between the defendant and plaintiff’s
employer. The court noted that the contractual indemnification
provision was clear and unambiguous. The court enforced the
provision and noted that it was not contingent on the employer
being negligent.
Topic Tags: Common Law Negligence, Contractual Indemnification,
Dangerous Conditions, Elevated Risk, Manner and Methods,
Unprotected Hole/Hazardous Opening
2. Michael Seidita v. Millennium Pipeline Company, LLC, 2011 U.S.
Dist. LEXIS 100473 (Sept. 2, 2011). Previous to this decision, the
plaintiff had discontinued the action against one defendant and
settled with two others. At issue in this decision was
indemnification claim by one of the defendants who was organized to
construct the pipeline against the other defendant, and who was a
contractor hired to provide inspection, safety, and construction
management services. The defendant against whom indemnification is
sought contends that the other defendant is not entitled to
indemnification because:
1. The indemnification clause does not cover this case because the
accident did not arise out of its activities.
2. The indemnification clause is unenforceable because it purports
to indemnify the party seeking indemnification for their own
negligence.
The entity from whom indemnity is sought also contends, even if the
other party is entitled to contractual indemnification, that it is
entitled to common law indemnification. The court granted
contractual indemnification to one defendant and denied common law
indemnification to the other.
Practice Note: The case provides a detailed analysis of the
enforceability of a contractual indemnification provision.
Topic Tags: Common Law Indemnification, Contractual
Indemnification
26 • Winter 2012 LABOR LAW UPDATE
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