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THE FIRST, THIRD AND FOURTH DEPARTMENTS HAVE HELD THAT THE VIOLATION OF THE INDUSTRIAL CODE PROVISION 12 NYCRR 23-4.2 (K) WILL NOT SUPPORT A LABOR LAW 241(6) CAUSE OF ACTION BECAUSE IT IS NOT SUFFICIENTLY SPECIFIC; THE SECOND DEPARTMENT HAS HELD THE VIOLATION OF THAT SAME PROVISION SUPPORTS A LABOR LAW 241(6) CAUSE OF ACTION (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court in this Labor Law 241(6) construction-accident action, determined that the violation of the Industrial Code provision 12 NYCRR 23-4.2 (k) will not support a Labor Law 241(6) cause of action. The court noted the split of authority on this issue:

… [T]he court erred in denying the moving defendants’ motion with respect to the Labor Law § 241 (6) claim against [defendant] insofar as it was based on the alleged violation of 12 NYCRR 23-4.2 (k). We have repeatedly held that 12 NYCRR 23-4.2 (k) is not sufficiently specific to support a Labor Law § 241 (6) claim … . Inasmuch as the First and Third Departments have held similarly … , we decline to adopt contrary precedent in the Second Department … . Vicki v City of Niagara Falls, 2023 NY Slip Op 02260, Fourth Dept 4-28-23

Practice Point: In the First, Third and Fourth Department the Industrial Code provision 12 NYCRR 23-4.2 (k) is not specific enough to support a Labor Law 241(6) cause of action. The Second Department has held that the violation of the provision will support a Labor Law 241(6) cause of action.

 

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IF THE WORKER’S COMPENSATION BOARD FINDS A DEFENDANT IN A CONSTRUCTION-ACCIDENT ACTION WAS PLAINTIFF’S EMPLOYER, PLAINTIFF’S RECOVERY AGAINST THE EMPLOYER IS RESTRICTED TO WORKER’S COMPENSATION BENEFITS AND OTHER DEFENDANTS CANNOT MAINTAIN ACTIONS FOR CONTRIBUTION OR INDEMNIFICATION AGAINST THAT EMPLOYER (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Wan, determined the employees were restricted to worker’s compensation benefits in this construction-accident action against their employers and the other defendants were precluded from seeking contribution and indemnification from the employers:

Workers’ Compensation Law § 11(1) precludes recovery by “any third person” against “[a]n employer” for contribution or indemnity “for injuries sustained by an employee acting within the scope of his or her employment” unless the employee “has sustained a ‘grave injury'” or there is a “written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution to or indemnification of the claimant.” Despite this clear directive, the Supreme Court, relying on this Court’s decision in Baten v Northfork Bancorporation, Inc. (85 AD3d 697), permitted cross-claims sounding in contribution and indemnity to survive against an entity on the ground that triable issues of fact existed with respect to whether that entity was an employer, regardless of a Workers’ Compensation Board determination on this issue. Here, we clarify that, notwithstanding our prior decision in Baten, no claim for indemnity or contribution may be maintained against an entity determined to be an employer by the Workers’ Compensation Board except in the limited circumstances specified in Workers’ Compensation Law § 11.* * *

… [W]e hold that Workers’ Compensation Law § 11 precludes recovery by any third party for contribution and indemnity against an entity determined by the WCB [Workers’ Compensation Board] to be the plaintiff’s employer except where the injured employee has suffered a grave injury or where the employer has expressly agreed in writing to contribute or indemnify.  Velazquez-Guadalupe v Ideal Bldrs. & Constr. Servs., Inc., 2023 NY Slip Op 02025, Second Dept 4-19-23

Practice Point: If the Workers’ Compensation Board determined a defendant in a construction-accident action was plaintiff’s employer, absent a “grave” injury or the employer’s agreement to contribute or indemnify, the plaintiff’s recovery is restricted to Workers’ Compensation benefits and there can be no recovery for contribution or indemnification against the employer by other defendants.

 

PLAINTIFF WAS NOT WEARING A HARD HAT AND WAS STRUCK IN THE HEAD BY DEBRIS DURING DEMOLITION WORK; PLAINTIFF ALLEGED THE FAILURE TO PROVIDE HEAD PROTECTION VIOLATED THE INDUSTRIAL CODE GIVING RISE TO A LABOR LAW 241(6) CAUSE OF ACTION; DEFENDANTS DID NOT DEMONSTRATE THE JOB WAS NOT A HARD HAT JOB; THEREFORE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the Labor Law 241(6) cause of action should not have been dismissed. Plaintiff was struck in the head by falling debris. The Industrial Code regulation requiring a hard hat was not demonstrated to be inapplicable by the defendant:

… Supreme Court should have denied those branches of the defendants’ motions which were for summary judgment dismissing so much of the Labor Law § 241(6) cause of action as was predicated on a violation of 12 NYCRR 23-1.8(c)(1). “In order to prevail on a Labor Law § 241(6) cause of action premised upon a violation of 12 NYCRR 23-1.8(c)(1), the plaintiff must establish that the job was a ‘hard hat’ job, and that the plaintiff’s failure to wear a hard hat was a proximate cause of his [or her] injury” … . Here, the defendants failed to establish, prima facie, that the demolition work associated with the house renovation was not a hard hat job, and that the plaintiff’s lack of head protection did not play a role in the injuries he sustained when he was struck in the head by a piece of wood … .Reyes v Sligo Constr. Corp., 2023 NY Slip Op 01699, Second Dept 3-29-23

Practice Point: Failure to provide a worker with hard hat may support a Labor Law 241(6) cause of action.

 

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PLAINTIFF ALLEGEDLY TRIPPED ON DEBRIS AND FELL INTO A TWO-TO-THREE-FOOT-DEEP PIT FROM WHICH THE PLYWOOD COVER HAD BEEN REMOVED TRIGGERING POTENTIAL LIABILITY UNDER LABOR LAW 240(1) AND 241(6); ONE DEFENDANT MAY BE LIABLE AS A STATUTORY AGENT OF THE OWNER WITH SUPERVISORY AUTHORITY; TWO DEFENDANTS MAY BE LIABLE UNDER LABOR LAW 200 FOR THE DANGEROUS CONDITIONS; THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversed Supreme Court and reinstated the complaint in this Labor Law 240(1), 241(6) and 200 action. Plaintiff’s decedent allegedly tripped on debris and fell into a two-to-three-foot deep pit from which the plywood cover had been removed:

… [P]laintiff has raised an issue of fact as to whether application of Labor Law § 240 governs this claim sufficient to defeat defendants’ various motions for summary judgment … .

… [P]laintiff raised issues of fact barring dismissal of the Labor Law § 241(6) cause of action, as Industrial Code §§ 23-1.7(e) and 23-1.30 may apply to circumstances of plaintiff’s accident. Plaintiff’s decedent testified that he tripped over debris in a passageway and then into a pit in an area that was arguably a work area … .

As to Baring’s liability under the Labor Law, it failed to establish that it is not a statutory agent for purposes of Labor Law §§ 240(1) or 241(6). Baring’s contract with Plaza delegated the authority to Baring to supervise and control the installation of kitchen equipment and obligated it to exercise such supervision over any of its subcontractors, such as decedent’s employer. That it may not have actually done so is not dispositive … .

With respect to the Labor Law § 200 and common-law negligence causes of action as against NYY Steak and Plaza, there is an issue of fact as to whether those defendants were on notice that the illumination at the site was insufficient … .. Plaintiff also adduced evidence of constructive notice as to the uncovered pit… . Devita v NYY Steak Manhattan, LLC, 2023 NY Slip Op 01257, First Dept 3-14-23

Practice Point: Plaintiff allegedly tripped on debris and fell into a two-to-three-foot-deep pit from which the plywood cover had been removed. Both Labor Law 240(1) and 241(6) were therefore implicated. One defendant may have been liable as a statutory agent of the owner with supervisory authority. Two other defendants may have been liable for the dangerous conditions, including inadequate lighting, pursuant to Labor Law 200.

 

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PLAINTIFF IN THIS LABOR LAW 240(1) AND 241(6) ACTION WAS STRUCK BY A PIPE WHICH FELL AS IT WAS BEING HOISTED FROM A TRUCK; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED; PLAINTIFF’S MOTION TO ADD THE VIOLATION OF ADDITIONAL INDUSTRIAL CODE PROVISIONS TO THE BILL OF PARTICULARS SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ summary judgment motion in this Labor Law 240(1) and 241(6) action should not have been granted and plaintiff’s motion to amend the bill of particulars should have been granted. Plaintiff was unloading pipes from a flatbed truck when a pipe which was being lifted by an excavator came loose and fell on plaintiff’s leg:

“With respect to falling objects, Labor Law § 240(1) applies where the falling of an object is related to ‘a significant risk inherent in . . . the relative elevation . . . at which materials or loads must be positioned or secured'” … . “[A] plaintiff must show that, at the time the object fell, it was being hoisted or secured, or that the falling object required securing for the purposes of the undertaking” … . A plaintiff must also show that “the object fell . . . because of the absence or inadequacy of a safety device of the kind enumerated in the statute” … . * * *

Supreme Court improvidently exercised its discretion in denying the plaintiff’s cross-motion pursuant to CPLR 3025(b) for leave to amend the bill of particulars to allege certain additional violations of sections of the Industrial Code with regard to the Labor Law § 241(6) cause of action. The plaintiff made a showing of merit, and the proposed amendment did not prejudice the defendants and did not involve new factual allegations or raise new theories of liability … . Castano v Algonquin Gas Transmission, LLC, 2023 NY Slip Op 00983, Second Dept 2-22-23

Practice Point: As long as no additional facts are involved, a motion to amend the pleadings to add Industrial Code violations (re: a Labor Law 241(5) action) should be granted, even after the note of issue has been filed (absent prejudice).

 

BECAUSE LOOSE PLANKS ON A SCAFFOLD CONSTITUTED A PROXIMATE CAUSE OF PLAINTIFF’S FALL IN THIS LABOR LAW 240(1) ACTION, PLAINTIFF’S ACTS OR OMISSIONS COULD NOT BE THE SOLE PROXIMATE CAUSE OF THE FALL AND THE RECALCITRANT WORKER DEFENSE WAS NOT AVAILABLE (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action stemming from a fall from a scaffold. Because the scaffold was defective, plaintiff’s actions or omissions could not be the sole proximate cause of the accident. The “recalcitrant worker” defense was also rejected:

Plaintiff made a prima facie showing of entitlement to summary judgment on his claim pursuant to Labor Law § 240 (1). His deposition testimony established that a proximate cause of his injury was the unsecured outrigger scaffold’s planks, which collapsed when he stepped on it with his boss, causing them to fall approximately 16 feet to the ground. Contrary to the court’s finding, defendants did not raise a triable issue of fact as to whether plaintiff was the sole proximate cause of his injuries. Since the statutory violation of a defective scaffold was a proximate cause of the accident, plaintiff cannot be the sole proximate cause of his accident and defendants cannot avail themselves of the recalcitrant worker defense … . Francis v 3475 Third Ave. Owner Realty, LLC, 2023 NY Slip Op 00951, First Dept 2-21-23

Practice Point: In a Labor Law 240(1) scaffold-fall case, as long as a defect in the scaffold was a proximate cause of the fall, the plaintiff’s acts or omissions could not be the sole proximate cause and the recalcitrant worker defense won’t fly.

 

A HEAVY DOOR FELL ON PLAINTIFF’S HAND AS HE AND A CO-WORKER ATTEMPTED TO LIFT THE DOOR ONTO A TRUCK; NO LIFTING DEVICES WERE AVAILABLE; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s injury to his hand when a heavy door fell as plaintiff attempted to lift the door onto a truck warranted summary judgment on the Labor Law 240(1) cause of action. There was evidence no hoists or other lifting devices were available:

Plaintiff testified that there were no hoists, forklifts, or other lifting devices on the work site, and that the door fell because it was too heavy for him and his coworkers to hold up without such a device. Plaintiff further testified that he knew that the door weighed about 300 pounds because he could lift 100 pounds by himself, but that he and his coworker were unable to lift it together.

The affidavit of his employer’s foreman, who admittedly did not witness the accident, did not dispute most of the facts relevant to plaintiff’s claim. The foreman’s affidavit failed to raise a question of fact as to the door’s weight, since he did not provide any basis for his bare claim that the door weighed about 100-120 pounds and could easily be lifted by two workers without the use of a hoist or forklift. Furthermore, the precise weight of the door, whether it fell from a height of 7 feet or 3 ½ feet, or whether a dolly was being used when it fell are not material in this case. It is undisputed that no lifting devices contemplated by Labor Law § 240(1) were available at the job site and that plaintiff’s injuries flow “directly from the application of the force of gravity to the object” … . Taopanta v 1211 6th Ave. Prop. Owner, LLC., 2023 NY Slip Op 00385, First Dept 1-26-23

Practice Point: Although the weight of the door which fell onto plaintiff’s hand as he tried to lift the door onto a truck was disputed (300 versus 100-120), it was undisputed that no lifting devices were available. Plaintiff should have been awarded summary judgment on the Labor Law 240(1) cause of action.

THERE WAS A QUESTION OF FACT WHETHER REPLACEMENT OF DAMAGED CEILING TILES WAS REPAIR, COVERED BY LABOR LAW 240(1) AND 241(6), OR ROUTINE MAINTENANCE, WHICH IS NOT COVERED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether plaintiff, who was replacing damaged ceiling tiles when he fell, was doing repair work covered by Labor Law 240(1) and 241(6), or routine cleaning, which is not covered:

“In determining whether a particular activity constitutes ‘repairing,’ courts are careful to distinguish between repairs and routine maintenance” … , since “routine maintenance” work performed “in a nonconstruction, nonrenovation context” is not a covered activity … .

… [T]he City failed to establish … that the tasks [plaintiff] was performing at the time of the accident were associated with routine maintenance, which is not a covered activity under the Labor Law, rather than repair work, which may be covered, even if it was not part of a larger renovation project … . Nooney v Queensborough Pub. Lib., 2023 NY Slip Op 00327, Second Dept 1-25-23

Practice Point: Routine maintenance is not covered by Labor Law 240(1) or 241(6) but repair is. Here there was a question of fact whether replacing damaged ceiling tiles was repair or routine maintenance.

 

PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF HIS FALL; THE LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s conduct was the sole proximate cause of his fall and the Labor Law 240(1), 241(6) and 200 causes of action should have been dismissed. Plaintiff stepped on a wooden brace getting out of a ditch and fell. The brace was not to be used as a walkway or ramp and ladders had been provided:

… [P]laintiff exited the excavation by stepping on a wooden cross brace which was not intended as a walkway, rather than using one of the ladders that were provided, and which he had been instructed to use, for that purpose. Thus, the defendants established that the plaintiff’s conduct was the sole proximate cause of his injuries … .

… Insofar as [the Labor Law 241(6)] cause of action is predicated upon violations of 12 NYCRR 23-1.22(b)(2) and (4), the defendants established that those regulations are inapplicable to the facts of this case, as the wooden cross brace from which the plaintiff fell, was not a runway or ramp constructed for the use of persons … . Insofar as that cause of action is predicated upon violations of 12 NYCRR 23-1.7(f) and 23-4.3, the defendants established, prima facie, that the City did not violate those regulations, in that ladders were provided at the excavation site … . …

[Re: the Labor Law 200 cause of action] defendants demonstrated … that the plaintiff’s alleged injuries did not result from a dangerous condition, but rather were caused by the plaintiff’s own conduct in stepping on a wooden cross brace which was not intended for that purpose … . Calle v City of New York, 2023 NY Slip Op 00297, Second Dept 1-25-23

Practice Point: Here ladders were available to climb out of ditch and plaintiff stepped on a wooden brace instead. The brace broke and plaintiff fell. Plaintiff’s conduct was the sole proximate cause of the accident and the Labor Law 240(1), 241(6) and 200 causes of action should have been dismissed.

 

PLAINTIFF STRUCK HIS HEAD AS HE FELL AND WAS INJURED BY THE ABRUPT STOP OF HIS FALL BY THE SAFETY HARNESS AND LANYARD; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS 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. Plaintiff had a safety harness and a retractable lanyard which were tied off when he fell. Although the harness and lanyard prevented him from hitting the floor, he hit his head as he fell and was injured by the abrupt stop of his fall (by the harness and lanyard):

The record establishes that the safety devices “proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity” … . The fact that plaintiff sustained injuries to his right shoulder and back when his body was caused to be pulled back up abruptly by his safety harness and lanyard demonstrates lack of adequate protection … . Arias v 139 E. 56th St. Landlord, LLC, 2023 NY Slip Op 00261, First Dept 1-24-23

Practice Point: Although plaintiff was provided with a safety harness and a lanyard which were tied off, he struck his head when fell and was injured by the abrupt stop of his fall by the harness and lanyard. Plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action.

 

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