Labor Law Update - Winter 2012 - Goldberg Segalla

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
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.
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
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
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.
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
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
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.
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.
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
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).
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:
“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
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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Labor Law Update - Winter 2012 - Goldberg Segalla

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