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PLAINTIFF IN THIS LADDER-FALL CASE DID NOT DEMONSTRATE THE BUILDING MANAGEMENT COMPANY WAS ACTING AS THE OWNER’S AGENT OR THAT IT HAD SUPERVISORY AUTHORITY OVER THE WORK; THEREFORE SUMMARY JUDGMENT AS AGAINST THE MANAGEMENT COMPANY ON THE LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined summary judgment in this ladder-fall case should not have been granted as against the building manager (Madison) as opposed to the building owner. Plaintiff did not demonstrate Madison was acting as the owner’s agent or that it had supervisory authority over the work. The court noted that the assumption-of-the-risk affirmative defense applies to sports activities, not Labor Law causes of action:

Labor Law § 240(1) imposes liability only on contractors, owners, or their agents. “An agency relationship for purposes of section 240(1) arises only when work is delegated to a third party who obtains the authority to supervise and control the job. Where responsibility for the activity surrounding an injury was not delegated to the third party, there is no agency liability under the statute” … . Here, the plaintiff failed to demonstrate, prima facie, either that Madison was the managing agent for the building or that Madison supervised or controlled any of the work being performed in the building … . Depass v Mercer Sq., LLC, 2023 NY Slip Op 04363, Second Dept 8-23-23

Practice Point: In order to hold the building management company liable in this ladder-fall Labor Law 240(1) action, the plaintiff was required to demonstrate the management company was acting as the owner’s agent and had supervisory control over the work. Plaintiff failed to do so.

 

QUESTIONS OF FACT WHETHER PLAINTIFF WAS DOING REPAIR WORK OR ROUTINE MAINTENANCE PRECLUDED SUMMARY JUDGMENT ON THE LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined there were questions of fact whether defendant had notice of the dangerous condition created by oil dripping on the floor (Labor Law 200), and whether plaintiff was engaged in repair (covered by Labor Law 240(1) and 241(6)) rather than routine maintenance (not covered) when working on the garage door:

There was evidence in the record that automotive services were being performed on the defendants’ premises by its employees, including changing oil filters and disposing the used oil filters into oil drums, and that oil was dripping from a spigot attached to a barrel close to the location of the plaintiff’s accident. This evidence raises a triable issue of fact as to whether the defendants created a dangerous or defective condition, or had actual or constructive notice of such a condition without remedying it within a reasonable time … . …

… [T]he injured plaintiff testified at his deposition that when the accident occurred, he was attempting to remove a bearing plate in order to replace a broken spring on the garage door. He also testified that one of the bolts of the bearing plate was stripped, so he had to widen the hole so that it would accept another bolt. …

Labor Law § 240(1) applies where an employee is engaged “in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure,” but does not apply to “routine maintenance” … . Here, the evidence raises a triable issue of fact as to whether the injured plaintiff was involved in a repair or routine maintenance at the time of the accident … .

Labor Law § 241(6) applies to construction, excavation, or demolition work. Construction work is defined in 12 NYCRR 23-1.4 as including the “repair, maintenance, painting or moving of buildings or other structures.” Thus, there are triable issues of fact as to whether Labor Law § 241(6) was violated in this matter … . Nusio v Legend Autorama, Ltd., 2023 NY Slip Op 04385, Second Dept 8-23-23

Practice Point: Routine maintenance is not covered by Labor Law 240(1) or 241(6) but repair work is. Here plaintiff was working on the garage door mechanism which required replacement of a stripped bolt. There was a question of fact on the repair versus routine-maintenance question.

 

THE MAJORITY CONCLUDED PLAINTIFF WAS DOING ROUTINE MAINTENANCE WHICH WAS NOT PART OF A CONSTRUCTION OR RENOVATION PROJECT WHEN HE WAS ELECTROCUTED AND FELL FROM A LADDER; THEREFORE THE LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION WERE DISMISSED; THE TWO-JUSTICE DISSENT ARGUED PLAINTIFF WAS “CLEANING” WITHIN THE MEANING OF LABOR LAW 240(1) AND WAS DOING CONSTRUCTION OR RENOVATION WORK WITHIN THE MEANING OF LABOR LAW 241(6) (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the work plaintiff was doing was not covered by Labor Law 240(1) or 241(6). Primosch v Peroxychem, LLC, 2023 NY Slip Op 04285, Fourth Dept 8-11-23. The Fourth Department concluded plaintiff’s work was routine maintenance, not cleaning covered by Labor Law 240(10, and was not done in connection with construction or renovation work. In a separate decision which incorporated the first, two justices disagreed in a dissent, finding that plaintiff’s work was “cleaning” covered by Labor Law 240(1) and was part of construction or renovation work. The dissent lays out in some detail the proof requirements for “cleaning” within the meaning of Labor Law 240(1). Apparently plaintiff was on a ladder cleaning electrical equipment when he was electrocuted and fell from the ladder. Primosch v Peroxychem, LLC, 2023 NY Slip Op 04286, Fourth Dept 8-11-23

Practice Point: The dissent includes a detailed explanation of what constitutes “cleaning” within the meaning of Labor Law 240(1).

 

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ALTHOUGH PLAINTIFF FELL THROUGH THE FLOOR OF THE BUILDING UNDER RENOVATION WHEN HE WENT IN TO GET A TOOL FOR HIS WORK ON AN ADJACENT BUILDING, HE WAS PERFORMING DUTIES ANCILLARY TO THE CONSTRUCTION WORK AND WAS THEREFORE ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION; HEARSAY EVIDENCE IN THE MEDICAL RECORDS WAS NOT ENOUGH TO RAISE A QUESTION OF FACT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff was hired to remove carpet from a building adjacent to the building to the building undergoing renovation (the carpet had been damaged by flooding in the building being renovated), Plaintiff went inside the building under renovation to get a tool when he fell through a temporary plywood floor: The court noted that opposition to a summary judgment motion based solely on hearsay does not raise a question of fact:

… [T]he plaintiff was assigned the task of removing damaged carpeting and flooring from a property adjacent to the subject premises, which allegedly had flooded as a result of renovations to the subject premises. When the plaintiff went inside the subject premises to get a tool, he fell through a temporary plywood floor, which consisted of several pieces of plywood placed on top of beams. …

… [P]laintiff established, prima facie, that he was at the subject premises, which was a construction site, in order to perform duties ancillary to the construction work, which was covered by Labor Law § 240(1) … . Further, the plaintiff established that he was exposed to an elevation-related risk for which no safety devices were provided, and that such failure was a proximate cause of his injuries … . In opposition, the defendant failed to raise a triable issue of fact as to whether the plaintiff was engaged in an enumerated activity, whether the plaintiff was recalcitrant in deliberately failing to use available safety devices, or whether his actions were the sole proximate cause of his injuries … . There is no evidence that anyone instructed the plaintiff that he was not to enter the subject premises or that he was to obtain the tools he needed to work on the adjacent property from somewhere else … . To the extent that the defendant contends that the plaintiff’s uncertified hospital records raise a triable issue of fact as how the accident occurred, “[w]hile hearsay may be considered in opposition to a motion for summary judgment, it is insufficient to raise a triable issue of fact where, as here, it is the only evidence upon which opposition to the motion was predicated” … . Estrella v ZRHLE Holdings, LLC, 2023 NY Slip Op 03848, Second Dept 7-19-23

Practice Point: Plaintiff was hired to remove carpet from a building adjacent to the building under renovation because flooding caused by the renovation damaged the carpet. Plaintiff fell through the floor of the building under renovation when he went in to get a tool. Plaintiff was doing work ancillary to the renovation and was therefore covered by Labor Law 240(1).

Practice Point: Hearsay standing alone will not raise a question of fact at the summary judgment stage.

 

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PLAINTIFF, WORKING FOR A SUBSIDIARY OF VERIZON, WAS INJURED LAYING A CABLE UNDER A CITY STREET; THE MAJORITY HELD THERE WERE QUESTIONS OF FACT WHETHER A FRANCHISE AGREEMENT BETWEEN THE CITY AND VERIZON AND/OR THE ISSUANCE OF A CITY PERMIT RENDERED THE CITY A PROPER DEFENDANT; A TWO-JUSTICE DISSENT DISAGREED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Mendez, over a two-justice dissent, determined the City was not entitled to summary judgment in this Labor Law case. Plaintiff was working for a subsidiary of Verizon (Empire City) laying a conduit in a trench in the street when a backhoe pushed a metal plate onto his foot. The City argued it was not an owner under the Labor Law, had no notice of the alleged dangerous condition, and there was no nexus between the City and and the work performed by Verizon. The majority held there were questions of fact about the existence of a franchise agreement between the City and Verizon, and whether a permit for the work had been issued by the City. Although the “lack of a nexus” argument was raised for the first time in reply, the majority held the issue raised a question of law and was properly considered by the motion court:

The witness’s lack of knowledge renders his testimony inconclusive and speculative as to whether Empire City was working without a permit on the day plaintiff was injured, warranting denial of summary judgment … . * * *

… [T]here remain triable issues of fact as to whether there existed a nexus between plaintiff and the City … . Furthermore, plaintiff sought certified copies of the franchise agreements for both Verizon and Empire City as part of discovery and defendant failed to provide them. Thus, the City’s challenge to the franchise documentation as being unauthenticated should have been rejected by the court, as copies of the documents remained in defendant’s exclusive possession and control but were not provided to plaintiff …  Powell v City of New York, 2023 NY Slip Op 03843, First Dept 7-17-23

Practice Point: The plaintiff was employed by a subsidiary of Verizon and was injured laying a conduit in a trench under a City street. The City claimed it had no nexus to the work done by Verizon. The majority held questions of fact about the existence of a franchise agreement between the City and Verizon and the issuance of a permit by the City precluded summary judgment in favor of the City. There was a two-justice dissent.

 

​REMOVING SCAFFOLDS, LADDERS, ETC. FROM THE WORKSITE WAS “ANCILLARY” TO THE RENOVATION WORK AND THEREFORE PROTECTED BY LABOR LAW 240(1); THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF’S FALLING OFF THE TOP OF THE VAN WHERE HE WAS LOADING THE EQUIPMENT WAS COVERED BY LABOR LAW 240(1) (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s task of removing equipment (scaffolds, ladders, poles, etc.) from the worksite and loading them onto the top of a van was ancillary to the renovation work and therefore encompassed by Labor Law 240(1). Plaintiff fell from the roof of the van:

… [T]he defendants’ submissions failed to demonstrate, as a matter of law, that the plaintiff’s activity in removing equipment from the worksite and loading it onto the van was not performed as part of the larger renovation project that CDI had been hired to complete on the premises, including roofing and shingling work. The plaintiff’s role in removing the equipment after it had been used by the plaintiff and his CDI colleagues was an act “ancillary” to the alteration of the structure at the property, and protected under Labor Law § 240(1) … .

The defendants also failed to adduce any evidence demonstrating that climbing on the roof of the van was not necessary to the task of securing the equipment on the roof, nor did they demonstrate that no safety device enumerated in Labor Law § 240(1) would have prevented the plaintiff’s fall. Ramones v 425 County Rd., LLC, 2023 NY Slip Op 03489, Second Dept 6-28-23

Practice Point: Removing scaffolding, ladders, etc. after use on the worksite was “ancillary” to the renovation work and therefore protected by Labor Law 240(1).

Practice Point: Falling from the top of a van where equipment removed from the worksite was being loaded may be compensable under Labor Law 240(1) (there was a question of fact on that issue).

 

TRIPPING OVER A GAP BETWEEN THE TOP STEP OF A STAIRCASE AND THE LANDING IS NOT A GRAVITY-RELATED INCIDENT COVERED BY LABOR LAW 240(1); RE: LABOR LAW 241(6), THE INDUSTRIAL CODE PROVISION REQUIRING COVERS OVER HAZARDOUS OPENINGS APPLIES ONLY TO OPENINGS A WORKER CAN COMPLETELLY FALL THROUGH (SECOND DEPT).

​The Second Department, reversing (modifying) Supreme Court, determined (1) tripping because of a gap between the top step of a staircase and the landing was not the type of gravity-related incident covered by Labor Law 240(1), (2) the industrial code provision requiring covers over hazardous openings applies only to openings through which a worker can completely fall through, and (3), the industrial code provision prohibiting tripping hazards was applicable:

… [T]he plaintiff’s injuries did not fall within the ambit of Labor Law § 240(1) because they did not occur as the result of an elevation-related or gravity-related risk … .

“Labor Law § 241(6) imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers” … 12 NYCRR 23-1.7(b)(1)(i) provides that “[e]very hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing.” “The provision pertaining to ‘hazardous openings’ … does not apply to openings that are too small for a worker to completely fall through” … .

… Supreme Court properly granted that branch of the plaintiff’s motion which was for summary judgment on the issue of liability on so much of the Labor Law § 241(6) cause of action as was predicated on a violation of 12 NYCRR 23-1.7(e)(1), which relates to tripping hazards … . Castro v Wythe Gardens, LLC, 2023 NY Slip Op 03329, Second Dept 6-21-23

Practice Point: Tripping over a gap between the top step of a staircase and the landing is not covered by Labor Law 240(1).

Practice Point: Re: Labor Law 241(6): The industrial code provision requiring covers over hazardous openings applies only to openings a worker can completely fall through.

 

EVIDENCE THAT THE LADDER TILTED CAUSING PLAINTIFF TO JUMP OFF WARRANTED SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action in this ladder fall case. It was enough that the ladder tilted causing plaintiff to jump off onto a plank below. Plaintiff alleged a nail which would have prevented the ladder from tilting was missing. Plaintiff’s actions were not the sole proximate cause of the injury:

“Labor Law § 240(1) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites” … . “‘In order to prevail on a Labor Law § 240(1) cause of action, a plaintiff must establish that the statute was violated and that the violation was a proximate cause of his or her injuries'” … .

Here, the plaintiff established, prima facie, that his injuries were proximately caused by a violation of Labor Law § 240(1) by submitting, inter alia, his deposition testimony that he was working on a ladder which tilted, causing him to lose his balance and jump onto the plank below … .

… The defendants’ contentions that the plaintiff leaned to one side while he was working and that he jumped off the ladder as it began to tilt were insufficient to raise a triable issue of fact as to whether the plaintiff’s actions were the sole proximate cause of his injuries … . Acevedo v PSM Long Is. Corp., 2023 NY Slip Op 03322, Second Dept 6-21-23

Practice Point: Evidence that the ladder tilted causing plaintiff to jump off warranted summary judgment in plaintiff’s favor on the Labor Law 240(1) cause of action. The defendants’ contention that the ladder tilted because plaintiff leaned to the side did not raise a question of fact about whether plaintiff was the sole proximate cause of his injuries.

 

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OUTSTANDING DISCOVERY CONSTITUTED GOOD CAUSE FOR A LATE (POST-NOTE-OF-ISSUE) MOTION FOR SUMMARY JUDGMENT; PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION IN THIS LADDER-FALL CASE; DEFENDANTS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 200 CAUSE OF ACTION (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined outstanding discovery furnished good cause for plaintiff’s late (post-note-of-issue) motion for summary judgment in this Labor Law 240(1) ladder-fall case. The appellate division then reached the merits and granted plaintiff’s motion for summary judgment on the Labor Law 240(1) cause of action and granted defendant’s cross-motion for summary judgment on the Labor Law 200 cause of action:

… [P]laintiff demonstrated good cause for his delay in moving for summary judgment … . As an initial matter, we note that the court directed the plaintiff, over the plaintiff’s objection, to file a note of issue or face sanctions or dismissal of the action, despite the fact that a significant amount of discovery, including … the depositions of the parties, had yet to occur … . * * *

… [P]laintiff established … entitlement to judgment as a matter of law by demonstrating that his injuries were proximately caused by the defendants’ failures, as the owner and the general contractor at the construction site, to satisfy their nondelegable duty to provide him with a safe and adequate ladder necessary for him to perform his elevation-related work at the site … . * * *

… [D]efendants established … entitlement to judgment as a matter of law dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence by demonstrating that they did not create or have actual or constructive notice of the condition that the plaintiff alleged caused his injuries and that they had no authority to supervise or control the means and methods of the plaintiff’s work at the time of his accident … . Panfilow v 66 E. 83rd St. Owners Corp., 2023 NY Slip Op 03357, Second Dept 6-21-23

Practice Point: Outstanding discovery constitutes good cause for a late (post-note-of-issue) motion for summary judgment.

Practice Point: Plaintiff entitled to summary judgment on the Labor Law 240(1) cause of action in this ladder-fall cause.

Practice Point: Defendants entitled to summary judgment on the Labor Law 200 cause of action–no notice of the condition and no authority to control the means and methods of plaintiff’s work.

 

PLAINTIFF WAS MOVING A HEAVY COMPRESSOR ON A PLANK OVER A TWO-FOOT-DEEP TRENCH WHEN THE PLANK BROKE; THE INJURY WAS COVERED BY LABOR LAW 240(1) AS AN ELEVATION-RELATED INCIDENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s injury was covered by Labor Law 240(1). Plaintiff was moving a heavy compressor on a plank over a trench when the plank broke:

… [T]he injured plaintiff and his coworkers were attempting to transport a compressor, which weighed approximately 300 pounds, from a sidewalk to the street. To reach the street, the compressor had to cross a trench approximately two feet deep, which the workers had covered with a ramp made of plywood. As the workers moved the compressor across the ramp, the ramp broke, causing the compressor to fall into the trench and the handle of the compressor to strike the injured plaintiff’s foot. * * *

… [P]laintiffs submitted evidence sufficient to establish, prima facie, that the injured plaintiff’s accident was proximately caused by Madison’s [defendant’s] failure to provide appropriate safety devices to protect against gravity-related hazards posed by maneuvering the compressor over the trench … . The plaintiffs also demonstrated that the injured plaintiff’s accident was the result of an elevation differential within the scope of Labor Law § 240(1). Although the compressor only fell a short distance, given the weight of the compressor and the amount of force it was capable of generating, the height differential was not de minimis … . Thus, the injured plaintiff suffered harm that flowed directly from the application of the force of gravity to the compressor … . Gonzalez v Madison Sixty, LLC, 2023 NY Slip Op 02866, Second Dept 5-31-23

Practice Point: Here a plank over a two-foot-deep trench broke under the weight of a heavy compressor, injuring plaintiff’s foot. The accident was a covered elevation-related event under Labor law 240(1).

 

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