Labor Law-Construction Law

THE SCAFFOLD BRACING BAR OVER WHICH PLAINTIFF TRIPPED WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS; LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the scaffold-bracing bar over which plaintiff tripped was open and obvious and not inherently dangerous. Therefore the Labor Law 200 and common law negligence causes of action should have been dismissed:

… [T]he horizontal cross-bracing bar affixed to the scaffold, about 14 inches above the ground, which plaintiff tripped over while attempting to step over it, was open and obvious, and not inherently dangerous … . Plaintiff, a carpenter for 28 years, testified that the cross-bracing was readily observable, he was aware of its presence, having stepped over it without incident on four to six prior occasions, and that the bar was stationary and secure and did not move or shift when his foot struck it.

Plaintiff’s own imprudent act of attempting to climb over the cross-bracing bar, rather than use the available openings in the scaffold without bars, was the sole proximate cause of his injury … . Plaintiff was admittedly aware that a safer method was available to him, and instead chose not to use it … . Peranzo v WFP Tower D Co. L.P., 2022 NY Slip Op 00147, First Dept 1-11-22

January 11, 2022/0 Comments/by Bruce Freeman

Labor Law-Construction Law

QUESTION OF FACT WHETHER PLAINTFF SLIPPED AND FELL ON ICE OR SNOW IN AN AREA WHICH HAD BEEN CLEARED SUCH THAT IT CONSTITUTED A “PASSAGEWAY” WITHIN THE MEANING OF THE INDUSTRIAL CODE RE: THIS LABOR LAW 241(6) ACTION (FIRST DEPT).

The First Department determined there was a question of fact in this Labor Law 241(6) action about whether the area where plaintiff slipped and fell on ice or snow was a “passageway” within the meaning of the Industrial Code:

This personal injury action stems from injuries sustained by plaintiff when he allegedly slipped and fell on snow or ice while walking from an area on a roof, where he was performing mason work, to its exit. …

“Although the regulations do not define the term ‘passageway’ . . . , courts have interpreted the term to mean a defined walkway or pathway used to traverse between discrete areas as opposed to an open area” … . …

The record contains competing evidence as to the location of the accident, whether a path had been cleared so that workers could safely walk between the stairway and the location on the roof where the work was being performed and whether it was necessary for plaintiff to traverse the area where he allegedly fell. …

If, as defendants claim, plaintiff’s accident occurred outside of the passageway or pathway defendants claim existed, then issues of fact exist as to whether it was necessary for plaintiff to traverse that area as part of his work … . Venezia v LTS 711 11th Ave., 2022 NY Slip Op 00152, First Dept 1-11-22

January 11, 2022/0 Comments/by Bruce Freeman

Labor Law-Construction Law

A STAIRWAY CAN BE A “PASSAGEWAY” WITHIN THE MEANING OF THE INDUSTRIAL CODE; THE LABOR LAW 241(6) CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined that a stairway where plaintiff fell could be a “passageway” within the meaning of the Industrial Code. Therefore the Labor Law 241(6) cause of action should not have been dismissed:

For purposes of the applicability of Industrial Code (12 NYCRR) § 23-1.7(d), a staircase may constitute a passageway when that staircase is the sole access to the work site … . Here, plaintiff and his coworkers were required to use the loading dock entrance, where they would check in with security and go down to the basement level; from the basement, the workers proceeded to the floors where construction was ongoing. Although workers had the option of using a single-stop elevator to gain access to the basement, plaintiff’s uncontradicted testimony showed that the workers used the staircase, not the elevator. At the time of plaintiff’s accident, he was with several coworkers, all of whom had just checked in with the security guard and were using the staircase. CJS offered no evidence that any of the workers for any of the contracted trades used the single-stop elevator for purposes other than delivering construction material. Under these circumstances, where the staircase on which plaintiff fell the way in which the workers generally accessed the basement level, the staircase was a passageway for Labor Law § 241(6) purposes … . Tolk v 11 W. 42 Realty Invs., L.L.C., 2022 NY Slip Op 00150, First Dept 1-11-22

January 11, 2022/0 Comments/by Bruce Freeman

Labor Law-Construction Law

THE DUCT ON THE FLOOR WAS AN INTEGRAL PART OF THE DEMOLITION WORK, THEREFORE LABOR LAW 241 (6) DID NOT APPLY; THE DEFENDANT DID NOT SUPERVISE OR CONTROL PLAINTIFF’S WORK, THEREFORE LABOR LAW 200 DID NOT APPLY (FIRST DEPT).

The First Department, reversing Supreme Court, determined the air duct which caused plaintiff’s fall was part of the demolition work plaintiff’s employer was hired to perform. Therefore Labor Law 241(6) was not applicable. In addition, Labor Law 200 did not apply to the defendant who did not supervise or control plaintiff’s work:

Plaintiff fell after trying to climb over an air duct that was left on the floor as part of the demolition work his employer was subcontracted to perform. Accordingly, the air duct constituted an integral part of the work, and 12 NYCRR 23-1.7(e)(2) as a predicate for the Labor Law § 241(6) claim is inapplicable … . Contrary to plaintiff’s contention, defendant properly raised its “integral part” argument in its moving papers.

Defendant cannot be held liable under Labor Law § 200, because the presence of the air duct on the floor was a condition created by the means and methods of the work performed by plaintiff or his employer, and the record demonstrates that defendant had only general supervisory authority over the construction site and did not control plaintiff’s work … . Plaintiff testified that he received instructions only from his employer’s foremen … . Mateo v Iannelli Constr. Co. Inc., 2022 NY Slip Op 00010, First Dept 1-4-22

January 4, 2022/0 Comments/by Bruce Freeman

Civil Procedure, Employment Law, Labor Law-Construction Law, Workers' Compensation

DEFENDANT EMPLOYER’S LATE MOTION TO AMEND THE ANSWER IN THIS LABOR LAW 240 (1) ACTION TO ASSERT THAT PLAINTIFF’S EXCLUSIVE REMEDY WAS THE WORKER’S COMPENSATION BENEFITS ALREADY AWARDED SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant employer’s (H&M’s) motion to amend its answer to allege Workers’ Compensation was plaintiff’s sole remedy in this Labor Law 240(1) action should have been granted, despite the lateness of the motion:

H&M’s initial failure to submit the proposed amended pleading (CPLR 3025[b]) was a technical defect that the court should have overlooked (see CPLR 2001), particularly since H&M attached the proposed amendment to its reply … . Plaintiff’s arguments that he was prejudiced by the amendment proposed in H&M’s cross motion, filed about three years after this action was commenced and two years after the workers’ compensation ruling was affirmed, are unavailing … . It is not dispositive that leave to amend was sought a few months after the note of issue was filed … .

The valid and final decision of a panel of the Workers’ Compensation Board, affirming a decision by a Workers’ Compensation Law Judge that was based on a finding that H&M was plaintiff’s employer at the time of the accident, “bars [plaintiff] from relitigating the identical issue in this proceeding” … . Chen v 111 Mott LLC, 2021 NY Slip Op 07501, First Dept 12-28-21

December 28, 2021/0 Comments/by Bruce Freeman

Labor Law-Construction Law

DEFENDANT HOMEOWNER DID NOT DIRECT OR EXERCISE SUPERVISORY CONTROL OVER PLAINTIFF’S WORK; THE LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED PURSUANT TO THE STATUTORY HOMEOWNER’S EXEMPTION; THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION, TO WHICH THE HOMEOWNER’S EXEMPTION DOES NOT APPLY, SHOULD ALSO HAVE BEEN DISMISSED BECAUSE THE DEFENDANT DID NOT CONTROL PLAINTIFF’S WORK (THIRD DEPT).

The Third Department, reversing Supreme Court determined the Labor Law 240(1), 241(6), 200 and common law negligence causes of action against the homeowner should have been dismissed. Plaintiff alleged he fell 14 feet attempting to install floor joists across the foundation. The Labor Law 240(1) and 241(6) causes of action should have been dismissed pursuant to the statutory homeowner’s exemption, which was deemed applicable because defendant did not direct the plaintiff’s installation of the joists. The Labor Law 200 and common law negligence causes of action should have been dismissed for essentially the same reason (there is no statutory homeowner’s exemption for those causes of action):

… [P]laintiff averred that he and defendant had discussions about work orders, logistics, materials and the architectural drawings, that defendant checked in with him on a daily basis, that defendant told him where to park during work hours and to lock a gate at the conclusion of the workday, that defendant changed the stairs and windows to be used for the house and changed the placement of a fireplace and that defendant moved rocks and applied tape to plywood at the construction site. Even when viewed in the light most favorable to plaintiff, however, this evidence does not indicate that defendant directed or controlled the manner of plaintiff’s work … . Capuzzi v Fuller, 2021 NY Slip Op 07335, Third Dept 12-23-21

December 23, 2021/0 Comments/by Bruce Freeman

Labor Law-Construction Law

DEFENDANTS DIRECTED PLAINTIFF TO REMOVE PAINT BY SPRAYING LACQUER WHICH APPARENTLY LED TO AN EXPLOSION; THERE ARE QUESTIONS OF FACT WHETHER DEFENDANTS SUFFICIENTLY CONTROLLED OR SUPERVISED PLAINTIFF’S WORK SUCH THAT THE HOMEOWNER’S EXEMPTION TO A LABOR LAW 241 (6) CAUSE OF ACTION DID NOT APPLY, AND WHETHER THE DEFENDANTS WERE LIABLE UNDER LABOR LAW 200 AND COMMON-LAW NEGLIGENCE THEORIES (SECOND DEPT).

The Second Department determined there were questions of fact whether the defendants were entitled to the homeowner’s exemption from Labor Law 241 (6) liability, and whether they sufficiently controlled or supervised plaintiff’s work to be liable under Labor Law 200 or a common-law negligence theory. Plaintiff was injured in an explosion when, at the direction of a defendant, he was spraying lacquer to remove paint. The defendant did not want the plaintiff to sand the paint off, apparently plaintiff’s usual practice, because of the resulting dust:

… [T]he defendants failed to eliminate all triable issues of fact as to whether they directed or controlled the injury-producing method of work and failed to establish, prima facie, their entitlement to the homeowner exemption of Labor Law § 241(6) … . * * *

… [T]he defendants failed to establish, prima facie, that they did not have actual or constructive notice of the allegedly dangerous electrical wiring in the kitchen … , and that they did not direct or control the method and manner in which the plaintiff performed the injury-producing work … . Venter v Cherkasky, 2021 NY Slip Op 07022, Second Dept 12-15-21

December 15, 2021/by Bruce Freeman

Evidence, Labor Law-Construction Law

PLAINTIFF IN A LABOR LAW 240 (1) AND 241 (6) ACTION NEED NOT SUBMIT AN AFFIDAVIT TO MAKE OUT A PRIMA FACIE CASE; THE HEARSAY STATEMENTS REFERENCING OR ATTRIBUTED TO PLAINTIFF DID NOT RAISE A QUESTION OF FACT (FIRST DEPT).

The First Department, reversing Supreme Court and granting plaintiffs’ summary judgment motion on the Labor Law 240 (1) and 241 (6) causes of action, determined: (1) plaintiff need not submit an affidavit to make out a prima facie case; and (2) defendant’s reliance on hearsay, including statements referenced in the certified medical records, did not raise a question of fact:

Plaintiffs established prima facie that defendant Choice is liable to them under Labor Law § 240(1) and Labor Law § 241(6) predicated on Industrial Code (12 NYCRR) § 23-1.7(b)(1)(i) through plaintiff Bledar Greca’s (plaintiff) testimony that he was injured while working on the fifth floor of defendant Choice’s property when a piece of wood that had been placed as a temporary path shifted, causing him to fall through an open area between beams. …

Although plaintiff’s medical records were certified, Choice [defendant] did not establish that the statements contained in them on which it relied either were germane to plaintiff’s diagnosis and treatment or are directly attributable to plaintiff … . The handwritten statement ostensibly by defendant Cekaj Construction Corp.’s principal and the affidavit by the owner of second third-party defendant Donato Plumbing Group, Inc. as to what Cekaj’s principal told him about plaintiff’s accident are both inadmissible hearsay, and do not qualify as admissions by an opposing party … . Greca v Choice Assoc. LLC, 2021 NY Slip Op 06759, First Dept 12-2-21

December 2, 2021/by Bruce Freeman

Labor Law-Construction Law

THE BUILT-IN WATER HEATER WAS A “STRUCTURE” AND PLAINTIFF WAS ENGAGED IN “REPAIR” WITHIN THE MEANING OF LABOR LAW 240(1); A SHELF ROUTINELY USED AS A PLATFORM TO ACCESS THE BUILT-IN WATER HEATER COULD CONSTITUTE A DANGEROUS CONDITION WITHIN THE MEANING OF LABOR LAW 200 (THIRD DEPT).

The Third Department, reversing Supreme Court, determined (1) the built-in water heater plaintiff was attempting to shut off was a “structure” within the meaning of Labor Law 240(1); (2) plaintiff (Eherts) was engaged in repair, a covered activity, not routine maintenance; and (3) the Labor Law 200 cause of action should not have been dismissed. The plaintiff determined it was important to turn off the water heater to prevent damage because of a suspected water main break. To access the built-in water heater it was necessary to step on suspended shelves. The shelf plaintiff stepped on gave way and he fell:

The situation here is not one of a stand-alone hot water heater accessible at floor level. To the contrary, the record shows that the hot water heater is situated above one of the store’s refrigerated units. The heater does not directly rest on top of the freezer, but on a platform suspended a few inches above the freezer by cables attached to the ceiling. The heater has a gas turnoff adjacent to it and an electric breaker switch on the actual heater. There is a shelf that runs along the top of the freezer unit that protrudes out about three feet from the freezer, approximately 12 feet above the floor surface. To access the heater, it was necessary to place a ladder against the shelf, and step over the shelf to reach the heater platform. In our view, this configuration constitutes a structure within the embrace of Labor Law § 240 (1) … . …

The events here did not occur during a routine scheduled maintenance call. Instead, on New Year’s Day, Eherts was responding to an isolated and unexpected event, i.e., to address a low/no water pressure issue at the store caused by a municipal water main break. His direct response was to take preventative measures to, among other things, avoid damage to the hot water heater by shutting the system off. Eherts v Shoprite Supermarkets, Inc., 2021 NY Slip Op 06587, Third Dept 11-24-21

November 24, 2021/by Bruce Freeman

Labor Law-Construction Law

THE FACT THAT OSHA REQUIRES PROTECTION ONLY FOR FALLS MORE THAN SIX FEET WAS IRRELEVANT; PLAINTIFF, WHO FELL FROM AN ELEVATED PLANK, WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department determined plaintiff’s fall from a plank, even if the fall was less than six feet, entitled him to summary judgment on the Labor Law 240 (1) cause of action:

Even if, as [defendant] contends, plaintiff fell less than six feet, that does not render the statute inapplicable … , [Defendant’s] claimed compliance with OSHA regulations requiring fall protection only for falls of six feet or more is irrelevant … . The wooden plank from which plaintiff fell did not constitute a “passageway,” but “served, conceptually and functionally, as an elevated platform or scaffold” … . DaSilva v Toll First Ave., LLC, 2021 NY Slip Op 06438 First Dept 11-18-21

November 18, 2021/by Bruce Freeman

THE SCAFFOLD BRACING BAR OVER WHICH PLAINTIFF TRIPPED WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS; LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION DISMISSED (FIRST DEPT).

QUESTION OF FACT WHETHER PLAINTFF SLIPPED AND FELL ON ICE OR SNOW IN AN AREA WHICH HAD BEEN CLEARED SUCH THAT IT CONSTITUTED A “PASSAGEWAY” WITHIN THE MEANING OF THE INDUSTRIAL CODE RE: THIS LABOR LAW 241(6) ACTION (FIRST DEPT).

A STAIRWAY CAN BE A “PASSAGEWAY” WITHIN THE MEANING OF THE INDUSTRIAL CODE; THE LABOR LAW 241(6) CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

THE DUCT ON THE FLOOR WAS AN INTEGRAL PART OF THE DEMOLITION WORK, THEREFORE LABOR LAW 241 (6) DID NOT APPLY; THE DEFENDANT DID NOT SUPERVISE OR CONTROL PLAINTIFF’S WORK, THEREFORE LABOR LAW 200 DID NOT APPLY (FIRST DEPT).

DEFENDANT EMPLOYER’S LATE MOTION TO AMEND THE ANSWER IN THIS LABOR LAW 240 (1) ACTION TO ASSERT THAT PLAINTIFF’S EXCLUSIVE REMEDY WAS THE WORKER’S COMPENSATION BENEFITS ALREADY AWARDED SHOULD HAVE BEEN GRANTED (FIRST DEPT).

PLAINTIFF IN A LABOR LAW 240 (1) AND 241 (6) ACTION NEED NOT SUBMIT AN AFFIDAVIT TO MAKE OUT A PRIMA FACIE CASE; THE HEARSAY STATEMENTS REFERENCING OR ATTRIBUTED TO PLAINTIFF DID NOT RAISE A QUESTION OF FACT (FIRST DEPT).

THE BUILT-IN WATER HEATER WAS A “STRUCTURE” AND PLAINTIFF WAS ENGAGED IN “REPAIR” WITHIN THE MEANING OF LABOR LAW 240(1); A SHELF ROUTINELY USED AS A PLATFORM TO ACCESS THE BUILT-IN WATER HEATER COULD CONSTITUTE A DANGEROUS CONDITION WITHIN THE MEANING OF LABOR LAW 200 (THIRD DEPT).

THE FACT THAT OSHA REQUIRES PROTECTION ONLY FOR FALLS MORE THAN SIX FEET WAS IRRELEVANT; PLAINTIFF, WHO FELL FROM AN ELEVATED PLANK, WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

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