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THE LESSEE OF THE PROPERTY, INFOR, CONTRACTED FOR THE WORK BEING DONE AT THE TIME OF PLAINTIFF’S INJURY IN THIS LABOR LAW 240(1) ACTION; THEREFORE INFOR WAS AN “OWNER” WITHIN THE MEANING OF THE LABOR LAW AND WAS A PROPER DEFENDANT (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the lessee of the property (Infor) was a proper party in this Labor Law 240(1) action because it had contracted for the work done at the time of plaintiff’s injury:

Plaintiff claims he was drilling metal tracks onto a wall when the Baker scaffold on which he was standing overturned, causing him to fall and sustain injuries. 635 owned the building in which plaintiff was working, and defendant SL Green Realty Corp. (SL Green) was 635’s managing agent. Infor leased the premises from 635, and retained JRM as the general contractor to perform construction work. JRM, in turn, retained Montec and nonparty Premier Builders, Inc., plaintiff’s employer, as subcontractors to perform various aspects of the work. * * *

The Labor Law § 240(1) claim should be reinstated against Infor, as the court incorrectly concluded that Infor was not a proper Labor Law defendant. Although Infor leased the premises from 635, it may still be held liable as an “owner” under the statute because it contracted for the construction work being performed at the time of plaintiff’s accident … . For the same reasons that plaintiff is entitled to partial summary judgment against 635 and JMR, plaintiff’s motion for partial summary on the Labor Law § 240(1) claim against Infor should be granted, and Infor’s motion for summary judgment dismissing the claim against it should be denied. Otero v 635 Owner LLC, 2022 NY Slip Op 06172, First Dept 11-3-22

Practice Point: A lessee may be considered a property “owner” in a Labor Law 240(1) action when the lessee contracted for the work being done when the plaintiff was injured.

 

PLAINTIFF SLIPPED AND FELL CARRYING A TANK WHILE WALKING ON THE MUDDY BOTTOM OF AN EXCAVATED HOLE; THE BOTTOM OF THE HOLE WAS NOT A PASSAGEWAY (LABOR LAW 241(6)) AND THERE WAS NO ELEVATION-RELATED RISK (LABOR LAW 240(1); THOSE TWO CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment dismissing the Labor Law 240(1) and 241(6) causes of action should have been granted. Plaintiff slipped and fell walking in a muddy, excavated hole. The bottom of the hole was not a passageway within the meaning of Labor Law 241(6) and there was relevant elevation-related risk:

Plaintiff is not entitled to relief under Labor Law § 241(6) for the alleged violation of Industrial Code § 23-1.7(d), since the “excavation pit” where he slipped and fell, “which at that time was no more than a big hole in the ground with an unfinished muddy bottom[,] … was not the type of flooring or passageway contemplated by” the Industrial Code … . Contrary to plaintiff’s contention, his “accident did not occur on a floor, platform, passageway or similar work area or surface within the purview of [section 23-1.7(d)], but rather on muddy ground in an open area exposed to the elements” … . There was no testimony tending to establish that he was walking along a walkway or path that “workers generally took” … . …

Summary judgment also should have been granted to defendants dismissing plaintiff’s Labor Law § 240(1) claim, because there was no elevation-related risk involved with his carrying a tank on his shoulder while he walked along the ground … . Alvarado v SC 142 W. 24 LLC, 2022 NY Slip Op 05584, First Dept 10-6-22

Practice Point: Plaintiff slipped and fell while walking on the muddy bottom of an excavated hole. He was not walking on a passageway, so the Labor Law 241(6) cause of action should have been dismissed. There was no elevation-related risk, so the Labor Law 240(1) cause of action should have been dismissed.

 

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A LATE MOTION FOR SUMMARY JUDGMENT SHOULD BE ALLOWED WHERE, AS HERE, DISCOVERY WAS NOT COMPLETE AT THE TIME THE MOTION WAS DUE AND THE DISCOVERY IS ESSENTIAL TO THE MOTION (SECOND DEPT).

The Second Department, reversing Supreme Court in this Labor Law 240(1) and 241(6) action, determined Supreme Court properly found plaintiff offered a sufficient reason for making a late motion for summary judgment, i.e., discovery was incomplete at the time the motion was due, but should not have denied the motion on the ground the discovery was not essential to the motion. The discovery dealt with whether plaintiff was engaged in unauthorized work at the time of the accident, which is a defense to Labor Law 240(1) and 241(6) actions:

A party may not move for summary judgment after the deadline to do so has expired, “except with leave of court on good cause shown” (CPLR 3212[a]). As a result, a court may not consider a late motion for summary judgment unless the moving party offers “a satisfactory explanation for the untimeliness—rather than simply permitting meritorious, nonprejudicial filings, however tardy” … . “While significant outstanding discovery may, in certain circumstances, constitute good cause for a delay in making a motion for summary judgment,” the movant must establish that the discovery was “essential to its motion” … . This standard generally requires that the discovery be relevant to resolving disputed issues of fact … . Even if the discovery is essential, good cause for the delay will only exist if the party promptly moves for summary judgment after securing such discovery … . Fuczynski v 144 Div., LLC, 2022 NY Slip Op 05151, Second Dept 9-14-22

Practice Point: Good cause for filing a late motion for summary judgment is demonstrated where, as here, the motion was due before discovery was complete and the discovery is essential to the motion.

 

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PARTY ADMISSIONS WERE NOT HEARSAY AND SHOULD HAVE BEEN CONSIDERED BY SUPREME COURT IN THIS LABOR LAW 240(1), 241(6), 200 ACTION; THE “PARTY-ADMISSIONS” ARGUMENT, ALTHOUGH NOT RAISED BEFORE SUPREME COURT, CAN BE CONSIDERED AND DEEMED DISPOSITIVE ON APPEAL (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined many of the causes of action in this Labor Law 240(1), 241(6) and 200 action should not have been dismissed. Plaintiff’s decedent, Rosa, was electrocuted when working on live electrical equipment. Rosa’s boss, Cuevas (the building manager), testified he told Rosa not to work on the live equipment until he returned with rubber insulation and shut down the power to the building. Decedent’s daughter, however, testified Cuevas told her Rosa had to do the work with the power on because there was an upcoming inspection. Cuevas’ statement was deemed admissible as a party admission and should have been considered by Supreme Court. The “party-admissions” argument was raised for the first time on appeal:

When “a party raises a legal issue for the first time on appeal, as long as the issue is determinative and the record on appeal is sufficient to permit review, this Court may consider the new argument” … . We may also consider this testimony in our discretion because [defendants] also relied on it in support of their summary judgment motion … . …

… [P]laintiff testified to postaccident conversations that Cuevas had with her when he visited Rosa in the hospital, when he admitted to plaintiff that Rosa had to perform the bus duct work without shutting down the electricity because of the imminently scheduled building inspection, so as not to inconvenience the tenants, and to avoid any complaints attendant to a service interruption, such as a lack of elevator service. Cuevas never denied either having those conversations with plaintiff in the hospital or making those statements…. . In any event, assuming hypothetically that these statements were inadmissible hearsay, they may still be considered as they are not the only evidence in this record that the electricity was not shut down when Rosa performed the duct work … . Rosa v 47 E. 34th St. (NY), L.P., 2022 NY Slip Op 05144, First Dept 9-13-22

Practice Point: Party admissions are not hearsay. A legal issue (here “inadmissible hearsay” versus “party admission”) raised for the first time on appeal may be considered where, as here, the record is sufficient and the issue is determinative.

 

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APPEAL FROM A DENIAL OF A MOTION TO REARGUE CONSIDERED DESPITE THE DISMISSAL OF THE APPEAL FROM THE INITIAL DENIAL OF SUMMARY JUDGMENT FOR FAILURE TO PROSECUTE; PLAINTIFF’S LABOR LAW240(1) CAUSE OF ACTION STEMMING FROM A FALL INTO A PIT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined: (1) the appeal from the denial of a motion to reargue would be considered even though the appeal from the initial denial of summary judgment was dismissed for failure to prosecute; (2) the Labor Law 240(1) cause of action stemming from plaintiff’s fall into a pit should not have been dismissed:

“As a general rule, we do not consider any issue raised on a subsequent appeal that was raised, or could have been raised, in an earlier appeal that was dismissed for lack of prosecution, although we have the inherent jurisdiction to do so” … . Since the plaintiff appealed from an order superseding the prior order appealed from at a time before the prior appeal was deemed dismissed, we exercise that discretion here. …

… [T]he defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 240(1) cause of action … . Contrary to the defendants’ contention, the risk of falling into a 16-foot pit on an excavation site is a type of elevation-related risk within the purview of protection of Labor Law § 240(1) … . Furthermore, the defendants failed to establish, prima facie, that the plaintiff’s negligence was the sole proximate cause of his injuries. The deposition testimony of the plaintiff and the foreman, which were submitted in support of the defendants’ motion, contain conflicting testimony raising a triable issue of fact as to whether the plaintiff received instructions not to stand within five feet of the pit. The defendants also did not establish, prima facie, that the installation of a protective device “would have been contrary to the objectives of the work” … . Thorpe v One Page Park, LLC, 2022 NY Slip Op 05053, Second Dept 8-24-22

Practice Point: Here the appellate court exercised its discretion to hear an appeal from the denial of a motion to reargue, even though the appeal from the initial denial of summary judgment was dismissed for failure to prosecute.

Practice Point: Plaintiff’s Labor Law 240(1) cause of action stemming from his fall into a pit should not have been dismissed.

 

STORED SHEETROCK PANELS WHICH FELL OVER ON PLAINTIFF DID NOT CONSTITUTE THE KIND OF ELEVATION/GRAVITY-RELATED INCIDENT COVERED BY LABOR LAW 240(1) (SECOND DEPT). ​

The Second Department determined sheetrock panels which were stored upright and fell over on plaintiff did not constitute an elevation-related hazard within the meaning of Labor Law 240(1):

“The extraordinary protections of Labor Law § 240(1) extend only to a narrow class of special hazards, and do ‘not encompass any and all perils that may be connected in some tangential way with the effects of gravity'” … . Therefore, to recover under Labor Law § 240(1), the injured plaintiff “must have suffered an injury as ‘the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential'” … .

“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'” … . “Therefore, a plaintiff must show more than simply that an object fell, thereby causing injury to a worker. 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” … .

Here, [defendant] established … the injured plaintiff’s injuries were not caused by an elevation-related or gravity-related risk within the scope of Labor Law § 240(1) … . Parrino v Rauert, 2022 NY Slip Op 04970, Second Dept 8-17-22

Practice Point: Here stored sheetrock panels which fell over on plaintiff did not constitute the kind of elevation/gravity-related incident that is covered by Labor Law 240(1). The facts are not explained. If the sheetrock should have been secured, it would seem Labor Law 240(1) would apply. Apparently defendant demonstrated there was no need to secure the sheetrock?

 

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THE NONPARTY SUBPOENA SHOULD NOT HAVE BEEN QUASHED AND THE RELATED PROTECTIVE ORDER SHOULD NOT HAVE BEEN ISSUED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the nonparty subpoena should not have been quashed and the related protective order should not have been issued. The nonparty, Bijari, listed for sale the real property where plaintiff was injured. Plaintiff sought information about the sale because the information could be relevant to whether the homeowner’s exemption to Labor Law 240(1) and 241(6) applied:

CPLR 3101(a)(4), concerning disclosure from nonparties to an action, provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by: . . . any other person, upon notice stating the circumstances or reasons such disclosure is sought or required” … .. Under that statute, the party who served the subpoena has an initial minimal obligation to show that the nonparty was apprised of the circumstances or reasons that the disclosure is sought … . Once that is satisfied, it is then the burden of the person moving to quash a subpoena to establish either that the requested disclosure “is utterly irrelevant to the action or that the futility of the process to uncover anything legitimate is inevitable or obvious” … . …

For a protective order to be issued, the party seeking such an order must make a “factual showing of ‘unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice'” … . “‘Trial courts are vested with broad discretion to issue appropriate protective orders to limit discovery. . . . [T]his discretion is to be exercised with the competing interests of the parties and the truth-finding goal of the discovery process in mind'” … . Here, Bijari failed to make the requisite showing pursuant to CPLR 3103(a) to warrant the issuance of a protective order with regard to the subpoena…. . Nunez v Peikarian, 2022 NY Slip Op 04969, Second Dept 8-17-22

Practice Point: Here in this Labor Law 240(1) and 241(6) action the plaintiff subpoenaed a nonparty who listed for sale the property where plaintiff was injured. The information plaintiff sought was relevant to whether the homeowner’s exemption to Labor Law 240(1) and 241(6) applied. The subpoena should not have been quashed and the related protective order should not have been issued.

 

THE SMALL CONCRETE PEBBLES UPON WHICH PLAINTIFF ALLEGEDLY SLIPPED DID NOT CONSTITUTE A “SLIPPERY CONDITION” WITHIN THE MEANING OF THE INDUSTRIAL CODE AND WERE NOT IN A “PASSAGEWAY” WITHIN THE MEANING OF THE INDUSTRIAL CODE; THE LABOR LAW 241(6) ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the Industrial Code did not apply to the small concrete pebbles on which plaintiff allegedly slipped when attempting to install a heavy glass divider:

When plaintiff stepped forward to place the glass into the track, he stepped onto “minute” pebbles near the track. His right foot slipped forward a few inches, but he did not fall. Plaintiff claims that he sustained injuries, not only because of pebbles he slipped on, but also because of [his employer’s] decision to remove one worker from his team when he undertook to move the glass.

… Neither of the Industrial Code regulations that plaintiff relies on apply to the accident. The floor was not in “a slippery condition” nor were the pebbles a “foreign substance which may cause slippery footing” within the meaning of Industrial Code § 23-1.7(d) … . Section 23-1.7 (e)(2) of the Industrial Code also does not apply as this was not a passageway, within the meaning of the regulation. In any event, the pebbles were debris that were an integral part of the construction work. The integral to the work defense applies to things and conditions that are an integral part of the construction, not just to the specific task a plaintiff may be performing at the time of the accident … . Ruisech v Structure Tone Inc., 2022 NY Slip Op 04941, First Dept 8-16-22

Practice Point: Small pebble-sized pieces of concrete are an integral part of the construction and therefore do not constitute a slippery “foreign substance” within the meaning of the Industrial Code. The Labor Law 241(6) action should have been dismissed.

 

THE INDUSTRIAL CODE PROVISION WHICH WAS THE BASIS OF THE LABOR LAW 241(6) CAUSE OF ACTION DID NOT APPLY TO PLAINTIFF’S DEMOLITION-WORK-INJURY; THE DEFENDANT GENERAL CONTRACTOR DID NOT EXERCISE SUPERVISORY CONTROL OVER PLAINTIFF’S WORK AND WAS NOT, THEREFORE, LIABLE UNDER LABOR LAW 200 (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the Industrial Code provision which was the basis of the Labor Law 241(6) cause of action did not apply to plaintiff’s demolition-work-injury and defendant general contractor (Lad) did not exercise supervisory control over defendant’s work and was not therefore liable under Labor Law 200:

… [T]he cause of action alleging a violation of Labor Law § 241(6) is predicated on Industrial Code 12 NYCRR 23-3.3(c), which mandates continuing inspections during hand demolition operations to detect hazards “resulting from weakened or deteriorated floors or walls or from loosened material.” … [Defendant] established …the inapplicability of this provision by demonstrating that the hazard arose from the plaintiff’s actual performance of the demolition work itself, and not structural instability caused by the progress of the demolition … . …

“Although property owners [and general contractors] often have a general authority to oversee the progress of the work, mere general supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability under Labor Law § 200” or for common-law negligence … . “A defendant has the authority to supervise or control the work for the purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed” … .

Here, Lad established, prima facie, that it did not possess the authority to supervise or control the means and methods of the plaintiff’s work … . Flores v Crescent Beach Club, LLC, 2022 NY Slip Op 04901, Second Dept 8-10-22

Practice Point: Here the cited Industrial Code provision did not apply to plaintiff’s Labor Law 241(6) demolition-work-injury cause of action and Labor Law 200 did not apply to defendant general contractor which did not exercise supervisory control over plaintiff’s work.

 

ALTHOUGH THERE WAS EVIDENCE PLAINTIFF’S USE OF A LADDER INSTEAD OF THE SCISSORS LIFT CREATED THE SAFETY ISSUE LEADING TO PLAINTIFF’S FALL IN THIS LABOR LAW 240(1) ACTION, THERE WAS EVIDENCE THE OPERATOR OF THE SCISSORS LIFT WOULD NOT ALLOW PLAINTIFF TO ACCESS IT, RAISING A QUESTION OF FACT WHETHER PLAINTIFF’S USE OF A LADDER WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT; THERE WAS A SUBSTANTIAL DISSENT (FOURTH DEPT).

The Fourth Department, over a substantial dissent, determined plaintiff’s Labor Law 240(1) action should have survived summary judgment. Plaintiff fell from a ladder attempting to pass sheet rock to another worker on a scissors lift. The dissent argued plaintiff should have used the scissors lift and therefore was the sole proximate cause of the fall. There was evidence the operator of the scissors lift refused to reposition it to allow plaintiff to access it, and, therefore, plaintiff’s use of the ladder was not the sole proximate case of his fall:

With respect to the Labor Law § 240 (1) claim, we conclude that defendants did not meet their initial burden of establishing as a matter of law that plaintiff was the sole proximate cause of the accident … . … [D]efendants established that the coworker, who was operating and standing in the scissor lift at the time of the accident, denied plaintiff’s request for access to the device by refusing to reposition it to allow plaintiff to safely lift the sheetrock into place. We note that “[i]t is well established that there may be more than one proximate cause of an injury” … , and that “[q]uestions concerning . . . proximate cause are generally questions for the jury” … .

Our dissenting colleague argues that the court properly concluded that, as a matter of law, plaintiff was the sole proximate cause of the accident because he chose to use the ladder instead of the scissor lift. The court’s conclusion was based on plaintiff’s deposition testimony admitting that use of the scissor lift was the proper and expected way to perform the task of lifting the sheetrock. We disagree with the dissent’s conclusion. Although plaintiff testified that the scissor lift was the proper device to use for his work, that statement alone does not, under the unique circumstances of this case, establish that plaintiff knew that the scissor lift was “available” and “chose for no good reason” not to use it … . Further, “[w]here causation is disputed, summary judgment is not appropriate unless only one conclusion may be drawn from the established facts” … and, here, in light of the coworker’s alleged conduct, the evidence is not conclusive about whether plaintiff chose to use the ladder over an “available” scissor lift for “no good reason.” Thomas v North Country Family Health Ctr., Inc., 2022 NY Slip Op 04836, Fourth Dept 8-4-22

Practice Point: Apparently use of a scissors lift, not a ladder, was the appropriate method for the work. Plaintiff fell from a ladder attempting to do the work. There was evidence the operator of the scissors lift would not allow plaintiff to access it. Therefore plaintiff’s use of the ladder may not have been the sole proximate cause of the fall and the defense motion for summary judgment on the Labor Law 240(1) cause of action should not have been granted. There was a substantial dissent.

 

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