Failure to Identify Industrial Code Violation in Pleadings Not Fatal/Supervisory Criteria for Labor Law 200(1) Action Explained
In reversing Supreme Court, the Second Department determined summary judgment should not have been granted to the defendants on the Labor Law 241(6) and 200(1) causes of action. Plaintiff was injured when he prevented himself from falling because of a missing plank on a scaffold. The court noted that the plaintiff’s failure to identify the breach of an Industrial Code provision in the complaint and bill of particulars was not fatal to the 241(6) claim (the allegation of a specific code violation was subsequently provided). And the court explained the criteria for liability under Labor Law 200(1):
Although a plaintiff asserting a Labor Law § 241(6) cause of action must allege a violation of a specific and concrete provision of the Industrial Code …, a failure to identify the Code provision in the complaint or bill of particulars is not fatal to such a claim … . The plaintiff’s belated allegations that the defendants third-party plaintiffs violated 12 NYCRR 23-5.1(c), 23-5.1(e)(1), 23-5.1(f), and 23-5.3(f) involved no new factual allegations, raised no new theories of liability, and caused no prejudice to the defendants third-party plaintiffs …. The defendants third-party plaintiffs were put on sufficient notice that the cause of action alleging violations of Labor Law § 241(6) related to missing scaffold planks through the plaintiff’s bill of particulars and deposition testimony. Thus, they cannot reasonably claim prejudice or surprise. * * *
Where, as here, a plaintiff’s claim arises out of alleged defects or dangers in the methods or materials of the work, to prevail on a Labor Law § 200 cause of action, the plaintiff must show that the defendant “had the authority to supervise or control the performance of the work” … . “A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed” … . “[T]he right to generally supervise the work, stop the contractor’s work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient to impose liability under Labor Law § 200 or for common-law negligence”… . Klimowicz v Powell Cove Assoc, LLC, 2013 NY Slip Op 07158, 2nd Dept 11-6-13