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INSTALLING A TV ON A WALL IS NOT AN ACTIVITY COVERED BY LABOR LAW 240(1) (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined defendants’ motions for summary judgment dismissing the Labor law 240(1) cause of action should have been granted. Plaintiff fell from an A-frame ladder while attempting to install a television on a wall in a doctor’s office:

Labor Law § 240(1) states that all contractors, owners, and their agents must supply protective equipment to laborers who are engaged in the “erection, demolition, repairing, altering, painting, cleaning or pointing of a building” … . As such, “[t]o successfully assert a cause of action under Labor Law § 240(1), a plaintiff must establish that he or she was injured during ‘the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure'” … . “[T]he term ‘altering’ in section 240(1) ‘requires making a significant physical change to the configuration or composition of the building or structure'” … . This definition excludes “‘routine maintenance'” and “‘decorative modifications'” … ,

The defendants established that the plaintiff was not engaged in any of the enumerated activities under Labor Law § 240(1). Contrary to the plaintiff’s contention, affixing a bracket to a wall so that a television might be mounted on it did not make a “significant physical change to the configuration or composition of the building or structure”  … . Saitta v Marsah Props., LLC, 2022 NY Slip Op 07467, Second Dept 12-28-22

Practice Point: Installing a TV on a wall is not one of the activities covered by Labor Law 240(1).

 

PLAINTIFF PULLED A LOAD OF WASTE BACKWARDS THROUGH AN ACCESS DOOR APPARENTLY EXPECTING THE LIFT TO BE POSITIONED OUTSIDE THE DOOR; THE LIFT HAD MOVED TO A DIFFERENT FLOOR AND PLAINTIFF FELL FROM THE THIRD FLOOR TO THE GROUND; THE ACCESS DOOR WAS SUPPOSED TO BE LOCKED BEFORE THE LIFT MOVED TO A DIFFERENT FLOOR; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION BECAUSE THE ACCESS DOOR LOCK, A SAFETY DEVICE, WAS MISSING (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff pulled a load of waste backwards through an access door which did not have a lock and then fell from the third floor because the lift which he (apparently) assumed was positioned outside the access door had moved to a different floor. Each access door was supposed to have a lock and the lift operator was supposed to lock the door before moving to a different floor:

Plaintiff met his burden of establishing the absence of an adequate safety device that could have prevented his fall, namely, a lock on the third-floor access door … .. In opposition, defendants failed to raise a triable issue of fact whether plaintiff’s own negligence was the sole proximate cause of his injuries … . Here, there is no evidence in the record that plaintiff removed the lock and was therefore the sole proximate cause of the accident … . Moreover, even assuming, arguendo, that plaintiff was negligent in walking backwards out the access door and in failing to look back prior to going through the door to ensure the lift was there, we conclude that such “actions [would] render him [merely] contributorily negligent, a defense unavailable under [Labor Law § 240 (1)]” … . Hyde v BVSHSSF Syracuse LLC, 2022 NY Slip Op 07329, Fourth Dept 12-23-22

Practice Point: Even though plaintiff may have been contributorily negligent in not looking behind him as he pulled a load of waste through an access door, contributory negligence is not a defense to a Labor Law 240(1) cause of action.

 

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CLAIMANT IN THIS LABOR LAW 240(1) and 241(6) ACTION AGAINST THE STATE SERVED THE ATTORNEY GENERAL WITH THE NOTICE OF INTENTION TO FILE A CLAIM BUT NOT THE NEW YORK STATE THRUWAY AUTHORITY (NYSTA); ALTHOUGH THE EXCUSE (IGNORANCE OF THE LAW) WAS NOT VALID, THE ACTION HAD MERIT AND THE NYSTA HAD TIMELY KNOWLEDGE OF THE FACTS; THEREFORE CLAIMANT’S MOTION TO SERVE AND FILE A LATE CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

​The Second Department, reversing the Court of Claims, determined claimant’s motion for leave to file a late claim in this Labor Law 240(1) and 241(6) action should have been granted. Claimant was injured working on the Tappan Zee Bridge and served a notice of intention to file a claim on the attorney general but not, as required, on the New York State Thruway Authority (NYSTA). The absence of a valid excuse (ignorance of the law) was not determinative. The action had merit and the NYSTA had timely knowledge of the facts underlying the claim:

Court of Claims Act § 10(6) permits a court, in its discretion, upon consideration of the enumerated factors set forth therein, to allow a claimant to file a late claim … . “In determining whether to permit the filing of a [late] claim . . . the court shall consider, among other factors, [1] whether the delay in filing the claim was excusable; [2] whether the state had notice of the essential facts constituting the claim; [3] whether the state had an opportunity to investigate the circumstances underlying the claim; [4] whether the claim appears to be meritorious; [5] whether the failure to file or serve upon the attorney general a timely claim . . . resulted in substantial prejudice to the state; and [6] whether the claimant has any other available remedy” … .. “No one factor is deemed controlling, nor is the presence or absence of any one factor determinative” … . Swart v State of New York, 2022 NY Slip Op 07088, Second Dept 12-14-22

Practice Point: The Court of Claims, pursuant to Court of Claims Act section 10(6), has the discretion to allow a claimant to file a late claim. Here the excuse, ignorance of the law, was not valid. But the claim was deemed to have merit and the respondent had timely knowledge of the underlying facts. Therefore the Court of Claims should have granted claimant’s motion to file a late claim.

THE HOIST WHICH PLAINTIFF WAS OPERATING WAS A SAFETY DEVICE WITHIN THE MEANING OF LABOR LAW 240(1); WHEN PLAINTIFF OPENED THE EMERGENCY HATCH ON THE HOIST FOR A REPAIRMAN, THE HATCH DOOR SLAMMED BACK DOWN ON HIS HEAD; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gonzalez, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff was attempting to aid in the repair of a hoist when he opened the emergency hatch and the hatch door fell back down, striking plaintiff’s head. The court ruled that the hoist was a covered safety device and plaintiff was entitled to some form of protection that would prevent the hatch door from falling back down after it was opened: In the alternative, the court noted that the hatch was a falling object which should have been secured:

Plaintiff was injured when the hatch door slammed onto his head as he stood on a ladder with his head protruding above the hatch aperture. We note that, in isolation, a hatch door is not necessarily a safety device … . Here, however, the hatch door was an essential component of a safety device — the hoist — being employed by plaintiff in an elevation-related capacity. It was foreseeable that the hoist could get stuck; indeed, a purpose of the hatch door was to serve as an emergency egress in such instances. When he was injured, plaintiff was still engaged in an elevation-related activity and attempting to safely remove himself from a height. Under these circumstances, the safety device — the hoist — was inadequate for its purpose of keeping plaintiff safe while engaged in an elevation-related activity. Plaintiff is thus entitled to partial summary judgment on the issue of liability on his claim under Labor Law § 240(1) … . Ladd v Thor 680 Madison Ave LLC, 2022 NY Slip Op 07031, First Dept 12-13-22

Practice Point: Here the hoist plaintiff was operating was deemed a safety device covered by Labor Law 240(1). The door on the hoist’s emergency hatch slammed back down on plaintiffs’ head after he opened it to allow access to the hoist by a repairman. Plaintiff was entitled to some sort of protection which would prevent the open hatch door from falling back down. As an alternative, the hatch door was a falling object which should have been secured.

 

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THE ALLEGATION THE A-FRAME LADDER SHIFTED FOR NO APPARENT REASON WARRANTED SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION, NOTWITHSTANDING DEFENDANT’S EXPERT’S OPINION THE ACCIDENT WAS NOT THE PROXIMATE CAUSE OF PLAINTIFF’S INJURIES (FIRST DEPT). ​

The First Department, reversing Supreme Court in this A-frame ladder-fall case, determined plaintiff was entitled to summary judgment based upon the allegation the ladder shifted for no apparent reason. The facts that plaintiff inspected the ladder before using it, there were no witnesses and defendant’s expert opined the accident was not the proximate cause of plaintiff’s injuries did not preclude summary judgment on liability:

It is irrelevant that plaintiff inspected the ladder and found it to be in good order before using it, as plaintiff is not required to demonstrate that the ladder was defective in order to make a prima facie showing of entitlement to summary judgment on his Labor Law § 240(1) claim … .

… [P]laintiff is entitled to summary judgment in his favor even though he was the only witness to his accident, as “nothing in the record controverts his account of the accident or calls his credibility into question” … . While the opinions of defendants’ expert engineer might relate to the issue of proximate causation of plaintiff’s damages, i.e., whether plaintiff’s claimed injuries were proximately caused by his accident … , they do not raise material issues … as to liability on the Labor Law § 240(1) claim. Pinzon v Royal Charter Props., Inc., 2022 NY Slip Op 06891, First Dept 12-6-22

Practice Point: Here the allegation the A-frame ladder shifted for no apparent reason warranted summary judgment on liability pursuant to Labor Law 240(1). The facts that there were no witnesses, plaintiff inspected the ladder before use, and defendant’s expert opined plaintiff’s injuries were not proximately caused by the fall did not preclude summary judgment.

 

THE FACT THAT PLAINTIFF COULD NOT EXPLAIN HOW THE IMPROPERLY SECURED BEAM WHICH STRUCK HIM FELL DID NOT PRECLUDE PLAINTIFF FROM BEING AWARDED SUMMARY JUDGMENT IN THIS LABOR LAW 240(1) ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this Labor Law 240(1) action. A beam which was not properly secured fell on plaintiff. The fact that plaintiff could not explain how the beam fell did not preclude the award of summary judgment:

Plaintiff’s testimony that a beam fell on him as he was securing a scaffold on which his coworker was standing to strip concrete formwork beams from the ceiling, along with the unrebutted affidavit of his expert concluding that the beam was not properly secured, established his entitlement to summary judgment on liability on the Labor Law § 240(1) claim … . That plaintiff was unable to explain how the beam fell did not preclude summary judgment in his favor … . Fuentes v YJL Broadway Hotel, LLC, 2022 NY Slip Op 06636, First Dept 11-22-22

Practice Point: Plaintiff’s expert concluded the beam which struck plaintiff was not properly secured and the expert’s conclusion was not rebutted. That plaintiff could not explain how the beam fell did preclude the award of summary judgment in this Labor Law 240(1) action.

 

SUPREME COURT PROPERLY DISMISSED DEFENDANTS’ SOLE-PROXIMATE-CAUSE AFFIRMATIVE DEFENSE IN THIS LABOR LAW 240(1) LADDER-FALL CASE; TWO JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined plaintiff was entitled to summary judgment dismissing defendants’ sole-proximate-cause affirmative defense to the Labor Law 240(1) cause of action. Plaintiff used an eight-foot A-frame ladder to work on an overhead door mechanism and stood on the second to the highest step. The dissenters argued there was a question of fact whether the plaintiff’s own negligence (standing on the second to the highest step) was the sole proximate cause of the fall. The majority found Supreme Court properly dismissed the sole-proximate-cause affirmative defense. Plaintiff submitted expert evidence that the eight-foot ladder was not an adequate safety device. And plaintiff’s standing on the second to the highest step spoke to comparative negligence, which is not a defense to a Labor Law 240(1) cause of action. With respect to plaintiff’s motion for summary judgment on liability, Supreme Court properly held there was a question of fact whether plaintiff was performing routine maintenance, which is not covered under Labor Law 240(1):

… [T]here is no evidence in the record that contradicts the opinion of plaintiff’s expert that the eight-foot A-frame ladder provided to plaintiff was inadequate because it could not have been placed so as to provide proper protection to plaintiff during his work on the bearing and shaft of the car wash overhead door at the time of the accident (see generally Labor Law § 240 [1]). Plaintiff therefore established his entitlement to judgment as a matter of law dismissing the sole proximate cause affirmative defense; any failure by plaintiff to refrain from standing on the top steps of the ladder amounts to no more than comparative negligence, which is not a defense under Labor Law § 240 (1) … . * * *

From the dissent:

Inasmuch as unnecessarily standing on the second step from the top of an A-frame ladder constitutes misuse of such a ladder, and plaintiff was depicted standing on the ladder in that manner just before the fall, we conclude that plaintiff’s submissions raised an issue of fact whether it was necessary for plaintiff to be on that step in order to perform his work on the 10-foot overhead door and, if not, whether plaintiff’s own actions were the sole proximate cause of the accident … . Green v Evergreen Family Ltd. Partnership, 2022 NY Slip Op 06588, Fourth Dept 11-18-22

Practice Point: Here the majority concluded the A-frame ladder was inadequate for the job and plaintiff’s standing on the second to the highest step amounted to comparative negligence, which is not a defense to a Labor Law 240(1) cause of action. Two dissenters argued there was a question of fact whether standing on the second to the highest step constituted plaintiff’s misuse of the ladder which was the sole proximate cause of the fall.

 

THE MAJORITY HELD THE INSTALLATION OF AN AIR TANK ON A FLATBED TRAILER WAS NOT A COVERED ACTIVITY UNDER LABOR LAW 240(1); THE DISSENT ARGUED THE TRAILER WAS A “STRUCTURE” WITHIN THE MEANING OF THE STATUTE (FOURTH DEPT). ​

The Fourth Department, over a two-justice dissent, determined plaintiff was not engaged in an activity protected by Labor Law 240(1) when he was injured. Plaintiff, a diesel technician, was injured installing an air tank on a flatbed trailer at a recycling plant. The majority concluded the plaintiff was not involved in construction, renovation or alteration of the recycling plant. The two dissenting justices argued that the truck was a “structure” within the meaning of the Labor Law:

… [P]laintiff, a certified diesel technician, was injured while installing an air tank on a flatbed trailer on the premises of a recycling plant. Inasmuch as plaintiff was “engaged in his ‘normal occupation’ of repairing [vehicles] . . . , a task not a part of any construction project or any renovation or alteration to the [recycling plant] itself,” he was not engaged in a protected activity within Labor Law § 240 (1) at the time of the accident … .

From the dissent:

“Labor Law § 240 (1) provides special protection to those engaged in the ‘erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure’ ” … . “Over a century ago, the Court of Appeals made clear that the meaning of the word ‘structure,’ as used in the Labor Law, is not limited to houses or buildings . . . The Court stated, in pertinent part, that ‘the word “structure” in its broadest sense includes any production or piece of work artificially built up or composed of parts joined together in some definite manner’ ” … .. … [W]e [have] held that it was error to dismiss a Labor Law § 240 (1) claim because the crane upon which the plaintiff’s decedent was working fit “squarely within” the definition of a “structure” as set forth by the Court of Appeals … . We have also held that a plaintiff engaged in the conversion of a utility van into a cargo van “was engaged in a protected activity at the time of the accident” and that the van was “a structure” … . “Indeed, courts have applied the term ‘structure’ to several diverse items such as a utility pole with attached hardware and cables . . . , a ticket booth at a convention center . . . , a substantial free-standing Shell gasoline sign . . . , a shanty located within an industrial basement used for storing tools . . . , a power screen being assembled at a gravel pit . . . , a pumping station . . . , and a window exhibit at a home improvement show” … . Here, the flatbed trailer upon which plaintiff was working also fits “squarely within” the definition of a “structure” … . Stoneham v Joseph Barsuk, Inc., 2022 NY Slip Op 06583, Fourth Dept 11-18-22

Practice Point: Plaintiff was installing an air tank on a flatbed trailer when injured. Because the activity was not connected to a construction site, the majority concluded the accident was not covered under Labor Law 240(1). The two dissenters argued the flatbed trailer met the definition of a “structure” within the meaning of Labor Law 240(1).

 

DEFENDANT CITY DEMONSTRATED IT DID NOT EXERCISE ANY SUPERVISORY CONTROL OVER THE MANNER OF PLAINTIFF’S WORK IN THIS LABOR LAW 200 ACTION; THEREFORE THE CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the city’s motion for summary judgment on the Labor Law 200 cause of action in this construction accident case should have been granted. The city did not exercise any control over the manner of plainitiff’s work:

“Labor Law § 200 is a codification of the common-law duty of property owners and general contractors to provide workers with a safe place to work” … . “Where, as here, the plaintiff’s injuries arise from the manner in which the work is performed, to be held liable under Labor Law § 200, ‘a defendant must have the authority to exercise supervision and control over the work'” … . Evidence of mere general supervisory authority to oversee the progress of the work, to inspect the work product, or to make aesthetic decisions is insufficient to impose liability under Labor Law § 200 … . Here, the City established, prima facie, that it did not exercise any supervision or control over the method or manner in which the plaintiff’s work was performed … . Jarnutowski v City of Long Beach, 2022 NY Slip Op 06474, Second Dept 11-16-22

Practice Point: In order to be liable under Labor Law 200, where the construction-related injury was caused by the manner in which the work was done, the defendant must exercise supervisory control over the work.

 

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THE TOWN CONTRACTED FOR THE CONSTRUCTION PROJECT ON WHICH PLAINTIFF WAS INJURED; DEFENDANT CONTRACTED WITH THE TOWN TO HANDLE BIDS FOR THE PROJECT; DEFENDANT WAS NOT AN AGENT FOR THE TOWN AND THE LABOR LAW 240(1), 241(6), 200 AND NEGLIGENCE ACTIONS AGAINST DEFENDANT SHOULD HAVE BEEN DISMISSED (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court in this Labor Law 240(1), 241(6), 200 and negligence action, determined the defendant was not an agent for the town which had contracted for the work plaintiff was doing when injured. Defendant had contracted with the town to prepare a bid package, solicit bids, obtain grant money and review bids for the construction project:

“An agency relationship for the 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” … . “Thus, unless a defendant has supervisory control and authority over the work being done when the plaintiff is injured, there is no statutory agency conferring liability under the Labor Law” … . Pursuant to the express terms of the contract between the Town and the nonparty contractor—i.e., plaintiff’s employer—as well as the terms of the contract between the Town and defendant, defendant had no control over the means or methods of the performance of the work by the contractor, and it also had no control over safety precautions for the workers at the construction site … .

For those same reasons, it was error to deny defendant’s motion with respect to the Labor Law § 241 (6) cause of action … . Defendant also established that it did not actually direct or control the work that brought about plaintiff’s injuries, and plaintiff raised no issue of fact with respect thereto. Therefore, it was error to deny defendant’s motion with respect to the Labor Law § 200 and common-law negligence causes of action … . Smith v MDA Consulting Engrs., PLLC, 2022 NY Slip Op 06389, Fourth Dept 11-10-22

Practice Point: In order for a party to be liable as an agent for the owner in a Labor Law action, the party must have some control over the work the injured plaintiff was engaged in. Here the defendant was in charge of bids for the town’s construction project and exercised no control over the work. The Labor Law causes of action against defendant should have been dismissed.

 

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