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AFTER REMOVING THE FLASHING AND CAULKING AROUND A SECOND-STORY WINDOW, PLAINTIFF WAS GIVEN PERMISSION TO LOWER THE LIFT TO THE GROUND TO GO THE BATHROOM; THE UNSECURED WINDOW FELL ON HIS HEAD; PLAINTIFF WAS NOT THE SOLE PROXIMATE CAUSE OF THE ACCIDENT AND WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) action. After the flashing and caulking around the second-story window were removed, plaintiff was given permission to go to the bathroom and he lowered the scissors lift he was working from to the ground. The unsecured window fell and struck plaintiff on the head:

… [I]nasmuch as the record establishes that plaintiff and the supervisor were working together on the scissor lift to remove the window by prying off the metal flashing and removing the caulk, and that the supervisor then granted plaintiff permission to use the bathroom and lowered the lift to the ground while leaving the window unsecured on the second story of the building when the window was susceptible to falling, it cannot be said that plaintiff’s conduct was the sole proximate cause of the accident … . We thus conclude that plaintiff’s “conduct during the [window removal] process ‘raises, at most, an issue concerning his comparative negligence, which is not an available defense under Labor Law § 240 (1)’ ” … . Reyes v Episcopal Senior Hous. Greece, LLC, 2023 NY Slip Op 05898, Fourth Dept 11-17-23

Practice Point: Apparently because plaintiff’s supervisor gave plaintiff permission to lower the lift to go to the bathroom, leaving the second-story window he was working on unsecured, plaintiff was not the “sole proximate cause” of the accident (which would preclude Labor Law 240(1) liability). At most he was comparatively negligent, which is not a bar to summary judgment.

 

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PLAINTIFF WAS ENGAGED IN AN “ALTERING” ACTIVITY COVERED BY LABOR LAW 240 AND THE ACCIDENT–AN OBJECT FALLING DOWN A MANHOLE AND STRIKING PLAINTIFF–WAS ELEVATION-RELATED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was engaged in work covered by Labor Law 240 and the accident–an object falling down a manhole and striking plaintiff–was elevation-related:

Plaintiff established that he was engaged in an “altering” activity as enumerated by Labor Law § 240(1). … [P]laintiff’s work involved more than “feeding cable through a preexisting hole.” Rather, it was part of a much larger, multi-worker project to install a fiber optic network through a 20-manhole structure where none had previously existed, with the ultimate goal of installing the cables into the school buildings, which would necessarily require drilling holes into the foundation of the school buildings in order to reach the communications room … . …

… [T]he vacuum that fell from ground level into the manhole and struck plaintiff on the head posed the type of elevation-related risk covered by Labor Law § 240(1) … . Keilitz v Light Tower Fiber N.Y., Inc., 2023 NY Slip Op 05661, First Dept 11-9-23

Practice Point: Here the plaintiff was installing a fiber optic network and was struck by an object which fell down the manhole he was in. He was engaged in “altering” within the meaning of Labor Law 240. The accident was elevation-related within the meaning of Labor Law 240. He was entitled to summary judgment.

 

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PLAINTIFF TRIPPED OVER A PIECE OF PLYWOOD COVERING A SMALL HOLE; DEFENDANT DID NOT DEMONSTRATE THAT IT LACKED CONSTRUCTIVE NOTICE OF THE CONDITION; THE LABOR LAW 200 CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s Labor Law 200 cause of action should not have been dismissed. Plaintiff alleged he tripped and fell when his foot stuck a piece of plywood covering a hole. Defendant did not demonstrate a lack of constructive notice of the condition:

… [T]he defendant failed to show, prima facie, that it lacked constructive knowledge of the alleged dangerous condition … since it did not submit any evidence that the plywood was a latent defect that could not have been discovered upon a reasonable inspection … . Therefore, the defendant failed to establish its prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging a violation of Labor Law § 200. Freyberg v Adelphi Univ., 2023 NY Slip Op 05589, Second Dept 11-8-23

Practice Point: Labor Law 200 causes of action are analyzed under standard negligence principles. Even though the Labor Law 241(6) cause of action was properly dismissed because the Industrial Code provision did not apply to the plywood covering a small hole, the Labor Law 200 cause of action should not have been dismissed because the defendant simply did not address it. To warrant dismissal the defendant was required to demonstrate it did not have constructive knowledge of the alleged tripping hazard.

 

THE TRIPPING HAZARD IN A WALKWAY VIOLATED THE INDUSTRIAL CODE; PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 241(6) CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 241(6) cause of action. Plaintiff tripped on a bowed piece of Masonite that was in a walkway, a violation of the Industrial Code:

Labor Law § 241(6) imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to workers by complying with specific safety rules and regulations set out in the Industrial Code (12 NYCRR) … . “To succeed on a cause of action alleging a violation of Labor Law § 241(6), a plaintiff must demonstrate that his or her injuries were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the accident” … . The plaintiff here relies upon 12 NYCRR 23-1.7(e)(1), which provides, in pertinent part, that “[a]ll passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping.”

The plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the issue of liability on the cause of action alleging a violation of Labor Law § 241(6) by tendering evidence establishing that while performing construction work, he fell over a tripping hazard in a passageway … , in the form of a raised or bowed piece of Masonite board, and that this unsafe condition was the proximate cause of his injuries … . Tompkins v Turner Constr. Co., 2023 NY Slip Op 05631, Second Dept 11-8-23

Practice Point: Where the proximate cause of plaintiff’s injury is a condition which violates the Industrial Code, here a tripping hazard in a walkway, the plaintiff is entitled to summary judgment on a Labor Law 241(6) cause of action.

 

IN A FALLING OBJECT CASE WHERE INADEQUATE SAFETY EQUIPMENT IS ALLEGED, THE FACT THAT THE PLAINTIFF DOES NOT KNOW WHAT THE OBJECT WAS DOES NOT PRECLUDE SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action in this falling object case. Plaintiff did not see or know what struck him. There was a hole in the protective netting:

… [T]he fact that the injured plaintiff could not identify the object that struck him or its origin did not preclude summary judgment in plaintiffs’ favor. A plaintiff’s prima facie case in a Labor Law § 240(1) action involving falling objects is not dependent on whether the plaintiff observed the object that hit him … . Further, a plaintiff is not required to show the exact circumstances under which the object fell, where a lack of a protective device proximately caused the injuries … . Here, plaintiff testified that he was struck on the head and neck by an unknown object while working on an outrigging platform on the 25th floor of the building under construction. He also testified that he heard workers stripping wood on the floors above him at the time of the accident, and submitted photographs depicting a large hole in the safety netting that served as overhead protection. This evidence was sufficient to establish prima facie that the accident was the result of a violation of Labor Law § 240(1) … . In opposition, defendants failed to provide any version of the accident under which they could not be held liable, making summary judgment appropriate … . Harsanyi v Extell 4110 LLC, 2023 NY Slip Op 05313, First Dept 10-19-23

Practice Point: Here plaintiff alleged he was struck by a falling object and the safety netting was inadequate. The fact that he did not know what the object was did not preclude summary judgment on his Labor Law 240(1) cause of action.

 

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THE SCAFFOLD COLLAPSED ENTITLING PLAINTIFF TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION; THE HEARSAY SUBMITTED IN OPPOSITION DID NOT DEFEAT THE MOTION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action in this scaffold-collapse case. Plaintiff alleged he was told to assemble use the scaffold despite mismatched parts. The defendants relied on hearsay statements attributed to Sabato, plaintiff’s supervisor, to the effect that Sabato told plaintiff to wait until the correct scaffold parts were supplied. Hearsay alone will not defeat a summary judgment motion:

… [T]estimony establishing that a safety device collapsed is sufficient for a prima facie showing on liability … . * * *

Because defendants’ submissions in opposition rely entirely on Sabato’s inadmissible hearsay statements, they are insufficient to raise a triable issue of fact as to whether plaintiff’s conduct — namely, using a scaffold that he was allegedly instructed not to use – may be the sole proximate cause for his accident and therefore warrant a denial of plaintiff’s motion … . Garcia v 122-130 E. 23rd St. LLC, 2023 NY Slip Op 05096, First Dept 10-10-23

Practice Point: The collapse of a scaffold warrants summary judgment on a Labor Law 240(1) cause of action. Hearsay alone offered in opposition will not defeat the motion.

 

PLAINTIFF DEMONSTRATED THE SCAFFOLD FROM WHICH HE FELL DID NOT HAVE GUARDRAILS; HIS MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff in this scaffold-fall case was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff demonstrated the scaffold lacked guardrails. That was enough:

Plaintiff … established prima facie that defendant violated Labor Law § 240(1) and that the violation proximately caused his injuries, as his uncontroverted affidavit demonstrated that the scaffold supplied to him for the work he was performing lacked guardrails and that no other protective devices were provided to protect him from falling. The motion was not premature as defendants failed to show what discovery was needed or what any additional discovery could be expected to reveal (see CPLR 3212 [f] …). Velasquez v 94 E. 208 St. Partners LLC, 2023 NY Slip Op 05110, First Dept 10-10-23

Practice Point: Here, falling from a scaffold with no guardrails warranted summary judgment on the Labor Law 240(1) cause of action.

 

A FALL OF 2O TO 25 FEET FROM A RAMP USED TO TRANSPORT MATERIALS IS COVERED BY LABOR LAW 240(1) (FIRST DEPT.)

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action based upon his falling off a ramp. The fact that the ramp was not a substitute for a ladder or a scaffold was not relevant:

That the ramp was not intended to be used as a substitute for a ladder or scaffold, but rather was used to transport materials, is of no moment. Whether an accident involving a ramp is encompassed by Labor Law § 240(1) turns on a number of factors, the primary one being whether the ramp covered a significant elevation differential … . Here … the height differential from the top of the ramp to the ground was 20 to 25 feet…. . Liu v Whitestar Consulting & Contr., Inc., 2023 NY Slip Op 04821, First Dept 9-28-23

Practice Point: Here plaintiff fell 20 to 25 feet from a ramp used to transport materials. The fact that the ramp was not a substitute for a ladder or a scaffold did not place the accident beyond the reach of Labor Law 240(1). The extent of the elevation of the ramp was determinative.

 

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ALTHOUGH PLAINTIFF WAS WORKING ON DEFENDANT’S PRIVATE RESIDENCE WHEN INJURED, THE HOMEOWNER’S EXEMPTION TO LABOR LAW 241(6) LIABILITY MAY NOT APPLY BECAUSE PLAINTIFF WAS EMPLOYED AS A CARPENTER BY DEFENDANT AND DEFENDANT MAY HAVE BEEN DIRECTING AND SUPERVISING THE WORK; SIMILARLY, DEFENDANT WAS NOT ENTITLED TO DISMISSAL OF THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant did not eliminate questions of fact about whether the homeowner’s exemption applied to the Labor Law 241(6) cause of action and whether he was liable under the Labor Law 200 and common law negligence causes of action. Although the plaintiff was working on defendant’s private residence, plaintiff was employed as a carpenter by defendant:

Although the defendant demonstrated that the work being performed at his single-family home was directly related to its residential use … , the defendant failed to establish, prima facie, that he did not direct or control the plaintiff’s work. In support of his motion, the defendant submitted, among other things, a transcript of the plaintiff’s deposition testimony, in which the plaintiff testified that, at the time of the accident, the defendant owned a business that employed the plaintiff to perform carpentry work on decks and that the defendant instructed the plaintiff on which boards to remove and replace at the defendant’s home. The plaintiff also testified that the defendant provided all of the materials and tools that the plaintiff used for the work at the defendant’s home. Thus, the defendant’s submissions failed to eliminate triable issues of fact as to whether he directed or controlled the plaintiff’s work … . * * *

… [T]he plaintiff’s accident arose from the means and methods of the work, not from a dangerous premises condition …. . [Defendant] failed to establish his prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 200 and common-law negligence causes of action, since he failed to eliminate triable issues of fact as to whether he had the authority to supervise or control the plaintiff’s work … . Walsh v Kenny, 2023 NY Slip Op 04791, Second Dept 9-27-23

Practice Point: Here plaintiff was working on his employer’s (the defendant’s) private residence when injured. The defendant provided the materials and there was evidence he supervised the work. Therefore questions of fact precluded summary judgment on the Labor Law 241(6) cause of action (pursuant to the homeowner’s exemption to the Labor Law 241(6) cause of action), as well as on the Labor Law 200 and common law negligence causes of action.

 

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THE DEFENDANT WHICH RENTED OUT THE AERIAL LIFT WHICH MALFUNCTIONED WAS NOT AN AGENT OF THE OWNER OR CONTRACTOR AND EXERCISED NO CONTROL OVER THE WORK, THEREFORE THE LABOR LAW CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED; THE NEGLIGENCE CAUSE OF ACTION, HOWEVER, PROPERLY SURVIVED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined that the Labor Law causes of action could not be brough against the defendant (Ahern) which rented out the aerial lift which malfunctioned. Ahern was not an agent of the owner or contractor and exercised no control over the work, so the Labor Law causes of action did not apply. However Ahern could be liable under a negligence theory:

… [O]nly contractors and owners and their agents can be held liable for Labor Law violations … . To be an “agent” of an owner or contractor, a party must have the ability to supervise and control the worksite and/or plaintiff’s work … . Here, plaintiff does not dispute that Ahern was neither an owner nor contractor within the meaning of the statute. The complaint only alleges that Ahern owned and maintained the aerial lift, not that Ahern exercised any supervision or control over the worksite … .

Plaintiff’s complaint, however, sufficiently pleaded a cause of action for negligence against Ahern. Plaintiff alleges that the aerial lift owned by Ahern malfunctioned, causing plaintiff’s coworker to spray plaintiff with the power washer. … [E]ven if plaintiff’s coworker proximately caused plaintiff’s injury, Ahern is not absolved of liability as “there may be more than one proximate cause of an injury” … . Kull v Ahern Rentals, Inc., 2023 NY Slip Op 04721, First Dept 9-26-23

Practice Point: Here the company which rented out the aerial lift which malfunctioned was not an agent of the owner or contractor and exercised no control over the work. Therefore the Labor Law was not triggered. However, the company may be liable under a straight negligence theory.

 

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