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COMPANY WHICH HIRED PLAINTIFF’S EMPLOYER AND PROPERTY OWNER LIABLE FOR PLAINTIFF’S FALL UNDER LABOR LAW 240 (1) AND 241 (6), THE COMPANY WHICH HIRED PLAINTIFF’S EMPLOYER WAS A PROPER DEFENDANT BECAUSE IT HAD THE AUTHORITY TO SUPERVISE, EVEN IF IT DID NOT EXERCISE THAT AUTHORITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the company which hired plaintiff’s employer, New York Plumbing, and the property owner,, Park Plaza, were liable for plaintiff’s fall, pursuant to Labor Law 240 (1) and 241 (6). New York Plumbing was liable because it had the authority to supervise plaintiff’s work, even if it did not exercise that authority. Park Plaza was not entitled to summary judgment on its indemnification action against New York Plumbing because it did not demonstrated New York Plumbing exercised actual supervision over plaintiff’s work. Plaintiff fell from the top of a temporary oil storage tank which was being emptied and cleaned:

Contrary to New York Plumbing’s contention, the plaintiff demonstrated, prima facie, that New York Plumbing had the authority to exercise control over the plaintiff’s work, even if it did not actually do so, and that New York Plumbing was therefore a proper defendant under the Labor Law … . …

Moreover, the plaintiff demonstrated that he was engaged in a protected activity under Labor Law §§ 240(1) and 241(6) when he was injured … .

The plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the issue of liability on the Labor Law § 240(1) cause of action insofar as asserted against the Park Plaza defendants [the property owner] and New York Plumbing. The plaintiff submitted evidence that he fell from a 12-to 16-foot high surface, and that he had not been provided with safety devices to protect him from such a fall … . …

The plaintiff’s Labor Law § 241(6) cause of action was predicated on an alleged violation of 12 NYCRR 23-1.7(d) … . The Park Plaza defendants and New York Plumbing failed to establish, prima facie, that a slippery condition on the oil tank was not a proximate cause of the plaintiff’s fall … .

Finally, the Park Plaza defendants did not demonstrate their prima facie entitlement to judgment as a matter of law on their cross claim for common-law indemnification against New York Plumbing, as their submissions did not establish, prima facie, that New York Plumbing exercised actual supervision over the plaintiff’s work … . Padilla v Park Plaza Owners Corp., 2018 NY Slip Op 07317, Second Dept 10-31-18

LABOR LAW-CONSTRUCTION LAW (COMPANY WHICH HIRED PLAINTIFF’S EMPLOYER AND PROPERTY OWNER LIABLE FOR PLAINTIFF’S FALL UNDER LABOR LAW 240 (1) AND 241 (6), THE COMPANY WHICH HIRED PLAINTIFF’S EMPLOYER WAS A PROPER DEFENDANT BECAUSE IT HAD THE AUTHORITY TO SUPERVISE, EVEN IF IT DID NOT EXERCISE THAT AUTHORITY (SECOND DEPT))/INDEMNIFICATION (LABOR LAW-CONSTRUCTION LAW, COMPANY WHICH HIRED PLAINTIFF’S EMPLOYER AND PROPERTY OWNER LIABLE FOR PLAINTIFF’S FALL UNDER LABOR LAW 240 (1) AND 241 (6), THE COMPANY WHICH HIRED PLAINTIFF’S EMPLOYER WAS A PROPER DEFENDANT BECAUSE IT HAD THE AUTHORITY TO SUPERVISE, EVEN IF IT DID NOT EXERCISE THAT AUTHORITY (SECOND DEPT))

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Failure to Instruct the Jury on the Justification Defense Required Reversal and a New Trial/Referring to the Defendant as a Liar, Vouching for the People’s Case, and Asking the Jury to Draw Inferences Not Based Upon the Evidence Constitutes Prosecutorial Misconduct
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