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A RETROCESSIONAL INSURER WHICH PAID OUT A SETTLEMENT ON BEHALF OF THE INSURED IN THE UNDERLYING LABOR LAW 240(1) LADDER-FALL CASE, IS ENTITLED TO BRING A LEGAL MALPRACTICE ACTION AGAINST THE LAWYERS FOR THE INSURED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kapnick, determined a retrocessional insurer (the reinsurer of a reinsurer) can maintain a legal malpractice claim against lawyers representing the insured in an underlying Labor Law 240(1) (ladder-fall) personal injury action. Plaintiff retrocessional insurer, having paid out on a settlement on behalf of the insured has standing to assert a claim for legal malpractice under a theory of equitable subrogation. (The opinion is too complex to fairly summarize here):

In New York, “[w]e recognize at once the fairness of the proposition that an insurer who has been compelled by his contract to pay to or in behalf of the insured claims for damages ought to be reimbursed by the party whose fault has caused such damages and the principle of subrogation ought to be liberally applied for the protection of those who are its natural beneficiaries” … . “As an equitable doctrine in the context of insurance, an insurance carrier, upon payment of a loss becomes subrogated to the rights and remedies of its assured to proceed against a party primarily liable without the necessity of any formal assignment or stipulation” … . Under the same equitable principles, “an insurer which has been compelled under its policy to pay a loss, ought in fairness to be reimbursed by the party which caused the loss” … . * * *

Where a reinsurer, or retrocessionaire, has paid a claim on behalf of an insured, equitable principles demand that the reinsurer be entitled to equitable subrogation on behalf of the insured. Having pleaded that it was contractually obligated to, and did, pay the majority of the [property owner/general contractor’s] settlement amount in the underlying personal injury action, and that it brings the instant action for legal malpractice as subrogee [of the property owner/general contractor], plaintiff can proceed with this action under the theory of equitable subrogation. Century Prop. & Cas. Ins. Corp. v McManus & Richter, 2024 NY Slip Op 00799, First Dept 2-15-24

Practice Point: Here the retrocessional insurer paid out a settlement on behalf of the insured in an underlying personal injury action. The retrocessional insurer was entitled to bring a legal malpractice action against the lawyers for the insured.

 

THE BED OF A VAN IS NOT AN ELEVATED WORK SURFACE FOR PURPOSES OF LABOR LAW 240(1) (FOURTH DEPT).

The Fourth Department noted the the bed of a van is not considered an elevated work surface for purposes of Labor Law 240(1):

Plaintiff and defendant’s principal moved the loaner jack to the edge of the van bed in preparation for lifting the device onto a four-wheeled cart. Plaintiff was injured when he and defendant’s principal lifted the loaner jack to place it onto the cart. * * *

The bed of a truck or similar vehicle does not constitute an elevated work surface for purposes of Labor Law § 240 (1) … , and the protections of Labor Law § 240 (1) do not apply where a plaintiff is injured while unloading equipment from the bed of a vehicle … . Inasmuch as there is no dispute that plaintiff’s injury occurred as he helped lift the loaner jack from the bed of defendant’s vehicle, the court properly determined that Labor Law § 240 (1) does not apply. Triest v Nixon Equip. Servs., Inc., 2024 NY Slip Op 00714, Fourth Dept 2-9-24

Practice Point: Here the Fourth Department held that the bed of a van was not an elevated work surface for purposes of Labor Law 240(1).

 

PLAINTIFF FELL THROUGH AN OPENING IN THE FLOOR WHEN THE PLYWOOD COVERING THE OPENING SHIFTED; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff’s motion for summary judgment on the Labor Law 240(1) cause of action should have been granted. Plaintiff fell through an opening in the floor when the plywood covering the opening shifted:

While [defendants] argue that plaintiff was the sole proximate cause of his accident, that defense is inapplicable here, since “if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it” … . Their argument that there was no violation in that the opening, which had no railings or other affixed barricades, was adequately protected by the sheet of plywood, is unavailing … . Similarly, their claim that an unattributed statement in plaintiff’s … accident report that he was lifting wood at the time of the accident implies that he intentionally removed the plywood himself does not create a question of fact … . The argument that plaintiff should not have been working in that area is contradicted by the scope of his employer’s contract, photographs, and his coworker’s testimony. In any event, it is irrelevant and would constitute, at most, comparative negligence, which is not a defense to a Labor Law § 240(1) claim … . Devlin v AECOM, 2024 NY Slip Op 00673, First Dept 2-8-24

Practice Point: A fall through an opening in the floor which was inadequately protected by a sheet of plywood warranted summary judgment on plaintiff’s Labor Law 240(1) cause of action.

 

QUESTIONS OF FACT ABOUT WHETHER REPLACING A WATER HEATER CONSTITUTED A REPAIR AS OPPOSED TO MAINTENANCE AND WHETHER AN ELEVATION-RELATED HAZARD WAS INVOLVED IN MOVING THE WATER HEATER WITH A HAND TRUCK PRECLUDED DISMISSAL OF THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined replacement of a 700 pound water heater which involved moving it with a hand truck raised questions of fact about the applicability of Labor Law 240 (1):

Plaintiff’s evidence * * * raised triable issues whether the day-long work that involved multiple workers to replace a 6-foot tall, 30-inch diameter water heater, weighing, by some estimates approximately 700 pounds, constituted a repair within the meaning of Labor Law § 240(1), as distinguished from routine maintenance … . Defendants did not offer proof, apart from conclusory statements, as to the cause of the water heater’s breakdown other than that the mechanism was leaking and no longer functioning. Defendants offered no specific proof that the water heater’s failure was due to normal wear and tear of particular parts or of its system itself. Triable issues were also raised as to whether an elevation differential existed such that the weight of the water heater, as it was strapped to the hand truck, created a hazardous gravitational force which devices enumerated in Labor Law § 240(1) were meant to protect against … . Rodriguez v Fawn E. Fourth St. LLC, 2024 NY Slip Op 00690, First Dept 2-8-24

Practice Point: There were questions of fact whether replacing a water heater was a “repair” and whether moving the 700-pound water heater on a hand truck was an “elevation-related” hazard within the meaning of Labor Law 240(1).

 

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PLAINTIFF DID NOT CITE A VIOLATION OF ANY INDUSTRIAL CODE PROVISION IN THE COMPLAINT OR BILL OF PARTICULARS, WHICH WOULD ENTITLE DEFENDANT TO SUMMARY JUDGMENT ON THE LABOR LAW 241(6) CAUSE OF ACTION; HOWEVER PLAINTIFF SHOULD HAVE BEEN ALLOWED TO AMEND THE BILL OF PARTICULARS TO ADD A CODE VIOLATION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff should have been allowed to amend the bill of particulars to allege a violation of an Industrial Code provision describing the construction of platforms. Plaintiff was walking on a rebar mat when he fell. The rebar mat could be considered to be a “platform” which, under the Industrial Code, requires planking:

Regarding the Labor Law § 241(6) claim, defendants “made a prima facie showing of entitlement to [summary] judgment” because “plaintiff did not cite any Industrial Code provision that allegedly was violated here in his complaint [or] bill of particulars” … . “However, this failure is not necessarily fatal to a section 241(6) claim and, in the absence of unfair surprise or prejudice, may be rectified by amendment, even where a note of issue has been filed” … . Plaintiff, in seeking to amend the bill of particulars, asserted a violation of Industrial Code § 23-1.22(c)(1), which requires that “[a]ny platform used as a working area or used for the unloading of wheelbarrows, power buggies, hand carts or hand trucks” to “be provided with a floor of planking at least two inches thick full size, exterior grade plywood at least three-quarters inch thick or metal of equivalent strength.” “[T]he platforms contemplated by that section are those used to transport vehicular and/or pedestrian traffic” … . Since it is uncontroverted that plaintiff was traversing the rebar mat carrying more rebar, and workers were expected to walk over the rebar mat, there is at least an issue of fact as to whether the rebar mat qualified as a platform used to transport pedestrian traffic. Plaintiff’s “belated identification of th[is] section[] entails no new factual allegations, raises no new theories of liability, and results in no prejudice to the defendant[s]” … . Thus, plaintiff is granted leave to amend his bill of particulars on this point, and summary judgment dismissing the § 241(6) claim is denied. Marte v Tishman Constr. Corp., 2024 NY Slip Op 00231, First Dept 1-18-24

Practice Point: Here in this Labor Law 240(1) action, plaintiff was allowed to amend his bill of particulars to cite a violation of the Industrial Code. Where there is no prejudice this type of amendment can be allowed even after the note of issue is filed.

 

PLAINTIFF WAS STRUCK BY A CABLE WHICH WHIPLASHED WHEN A TRUCK RAN INTO IT; THE INDUSTRIAL CODE PROVISION REQUIRING SAFETY MEASURES WHEN WORKING NEAR TRAFFIC APPLIED; THE LABOR LAW 241(6) CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the Labor Law 241(6) cause of action should not have been dismissed. Plaintiff was injured when a truck struck a cable which whiplashed and struck plaintiff. It was alleged Industrial Code section 12 NYCRR 23-1.29(a) was violated. That Code provision reads: “Whenever any construction, demolition or excavation work is being performed over, on or in close proximity to a street, road, highway or any other location where public vehicular traffic may be hazardous to the persons performing such work, such work area shall be so fenced or barricaded as to direct such public vehicular traffic away from such area, or such traffic shall be controlled by designated persons:”

… [T]here is no dispute that the Industrial Code section upon which plaintiff relies is sufficiently specific to support a Labor Law § 241 (6) claim. In addition, the facts show plaintiff was still engaged in construction, aloft in a lift bucket and tightening a newly installed steel cable wire, in close proximity to public vehicular traffic on a roadway, when a moving truck struck the cable that was installed in an underpass area and caused the cable to whiplash and strike plaintiff. At the time, there was no flag person or erected barricades to control traffic in the work area. Accordingly, the evidence established that 12 NYCRR 23-1.29(a) was violated and that this violation was a proximate cause of plaintiff’s injuries. Thus, the court should have granted plaintiff’s motion for partial summary judgment on the Labor Law § 241(6) claim, as plaintiff was not required to demonstrate freedom from comparative fault in order to be awarded summary judgment on that claim … . Bucci v City of New York, 2024 NY Slip Op 00124, First Dept 1-11-24

Practice Point: Here a truck ran into a cable which whiplashed and struck plaintiff. The Industrial Code provision requiring safety measures, such as flagmen or barriers, when working in the vicinity of traffic applied and supported the Labor Law 241(6) cause of action.

 

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THE MOTION TO AMEND THE COMPLAINT TO CORRECT A TYPO SHOULD HAVE BEEN GRANTED (LABOR LAW 241 AND 241(B) RATHER THAN 240(1)); SUMMARY JUDGMENT CAN BE GRANTED ON AN UNPLEADED CAUSE OF ACTION; HERE THERE WAS A QUESTION OF FACT WHETHER THE FOUR-INCH ELEVATION DIFFERENTIAL WAS DE MINIMIS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to amend the complaint to correct a typographical error should have been granted and noted that a motion for summary judgment can be granted on an unpleaded cause of action. The complaint alleged violation of Labor Law 241 and 241 (b) instead of Labor Law 240(1). The Second Department went on to find that plaintiff was not entitled to summary judgment because there was a question of fact whether the accident was an “elevation-related” event–a cylinder had dropped four inches and injured plaintiff’s finger. The question of fact concerned whether the four-inch height differential was de minimis:

… [T]he proposed amendment corrected a typographical error, did not result in any prejudice or surprise to the defendants, and was not palpably insufficient or patently devoid of merit … . 

We note that, despite the fact that the plaintiff had not yet properly pleaded a Labor Law § 240(1) cause of action at the time that he made a motion for summary judgment on the issue of liability pursuant to Labor Law § 240(1), “summary judgment may be awarded on an unpleaded cause of action if the proof supports such cause and if the opposing party has not been misled to its prejudice” … . * * *

The plaintiff failed to meet his prima facie burden, as he did not prove, as a matter of law, that he sustained the type of elevation-related injury that Labor Law § 240(1) was intended to protect against. Namely, where the cylinder fell only four inches but did so with such force as to crush the plaintiff’s finger, there are triable issues of fact as to whether the elevation differential between the plaintiff and the falling object was de minimis … . Castillo v Hawke Enters., LLC, 2023 NY Slip Op 06505, Second Dept 12-20-23

Practice Point: The motion to amend the complaint to correct a typo should have been granted.

Practice Point: Where the facts support it, a summary judgment motion may be based on an unpleaded cause of action.

Practice Point: Here a cylinder dropped four inches, injuring plaintiff’s finger. There was a question of fact whether the elevation-differential was de minimis.

 

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LABOR LAW 240(1) DOES NOT COVER INJURY TO A MECHANIC REPAIRING A VEHICLE, EVEN IF THE EVENT IS “GRAVITY-RELATED;” HERE AN ELEVATED TRAILER FELL ON PLAINTIFF (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, determined that injury to a mechanic repairing a vehicle is not covered by Labor Law 240(1). Plaintiff was repairing a trailer which had been lifted up five feet by a backhoe. The backhoe rolled backward and the trailer fell on the plaintiff, causing serious injuries:

Labor Law § 240 (1) applies to workers “employed” in the “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” … . The statute’s “central concern is the dangers that beset workers in the construction industry” (id. at 525). If an employee is engaged in an activity covered by section 240 (1), “contractors and owners” must “furnish or erect” enumerated safety devices “to give proper protection” to the employee. “Whether a plaintiff is entitled to recovery under [section] 240 (1) requires a determination of whether the injury sustained is the type of elevation-related hazard to which the statute applies” … . To make this determination, a court must examine the “type of work the plaintiff was performing at the time of injury” … . * * *

Employing a holistic view of the statute, we conclude that the activity in which plaintiff was engaged, ordinary vehicle repair, is not an activity covered by Labor Law § 240 (1). Such work is analogous to that of a factory worker engaged in the normal manufacturing process. Plaintiff is a mechanic who was fixing the brakes on a trailer, a “[v]ehicle” as that term is defined in Vehicle and Traffic Law § 159. Expanding the statute’s scope to cover a mechanic engaged in ordinary vehicle repair would “extend the statute . . . far beyond the purposes it was designed to serve” … . Stoneham v Joseph Barsuk, Inc., 2023 NY Slip Op 06467, CtApp 12-19-23

Practice Point: Labor Law 240(1) does not cover injuries to a mechanic who is repairing a vehicle. Here the elevated trailer plaintiff was repairing fell on him.

 

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THE SCAFFOLD ON WHICH PLAINTIFF WAS WORKING COLLAPSED FOR NO APPARENT REASON; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION; THE DEFENDANTS’ EXPERT’S AFFIDAVIT WAS CONCLUSORY AND DID NOT RAISE A QUESTION OF FACT; IN ANY EVENT THE EXPERT’S OPINION THAT PLAINTIFF FAILED TO LOCK THE SCAFFOLD SPOKE TO CONTRIBUTORY NEGLIGENCE WHICH IS NOT A DEFENSE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff, who was on a scaffold when it collapsed, was entitled to summary judgment on the Labor Law 240(1) cause of action. Defendants’ expert’s affidavit was conclusory and did not raise a question of fact. The noted that plaintiff’s comparative negligence (the alleged failure to lock all the pins in place) was not a defense to a Labor Law 240(1) cause of action:

The evidence that the scaffold on which plaintiff was working at the time of his accident collapsed under him for no apparent reason established his prima facie entitlement to partial summary judgment on the issue of liability on his Labor Law § 240 (1) claim … . Defendants failed to raise an issue of fact in opposition. Their expert’s opinion that the cause of plaintiff’s accident was his alleged failure to properly lock all of the scaffold’s pins in place was conclusory, and unsupported by anyone “with personal knowledge of the circumstances surrounding plaintiff’s work at the time of the accident” … . “Furthermore, even if it could be established that plaintiff did not lock all the pins in place before ascending the scaffold, this would have amounted to only comparative negligence, which is not a defense to a Labor Law § 240 (1) claim” … . Bialucha v City of New York, 2023 NY Slip Op 06470, First Dept 12-19-23

Practice Point: A scaffold which collapses for no apparent reason supports summary judgment on a Labor Law 240(1) cause of action.

Practice Point: The conclusory affidavit by defendants’ expert did not raise a question of fact.

Practice Point: Contributory negligence is not a defense to a Labor Law 240(1) cause of action.

 

QUESTIONS OF FACT WHETHER INJURY FROM A WOODEN CONCRETE FORM FALLING OVER WERE COVERED BY LABOR LAW 240(1) AND 241(6) (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff raised questions of fact about whether injury caused by a 50-poind wooden concrete form falling over was covered by Labor Law 240(1) and 241(6):

… [P]laintiff raised triable issues of fact as to whether plaintiff’s injuries flowed directly from the application of the force of gravity to the form, whether the weight of the form could generate a significant amount of force as it fell and whether plaintiff’s injuries were proximately caused by the lack of a safety device of the kind required by the statute … . …

Plaintiff also raised triable issues as to his Labor Law § 241(6) claim predicated on Industrial Code (12 NYCRR) § 23-2.2(d), inasmuch as that section provides that stripped concrete forms “shall be promptly stockpiled or removed from areas in which persons are required to work or pass.” The evidence indicated … that the concrete forms were scattered about the garage area following concrete work performed in the garage two weeks earlier by plaintiff’s employer, the cement contractor. Lopez v 106 LPA LLC, 2023 NY Slip Op 06481, First Dept 12-19-23

Practice Point: Here a wooden form weighing 50 pounds, which was leaning against a wall, fell over on plaintiff. There were questions of fact whether this gravity-related event was covered by Labor Law 240(1), and whether violation of the Industrial Code provision requiring the stacking of concrete forms was covered by Labor Law 241(6).

 

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