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THE APPELLATE DIVISION INITIALLY REVERSED SUPREME COURT AND HELD PLAINTIFF WAS NOT ENTITLED TO SUMMARY JUDGMENT IN THIS LABOR LAW 240(1) LADDER-FALL CASE; THERE WAS A DEFENSE VERDICT AFTER TRIAL; THE ORDER DENYING SUMMARY JUDGMENT IS NOT APPEALABLE TO THE COURT OF APPEALS (CT APP).

The Court of Appeals determined the Appellate Division order denying summary judgment in this Labor Law 240(1) ladder-fall case did not “affect the final judgment” after trial. Therefore the order was not appealable to the Court of Appeals:

The 2018 Appellate Division order may be reviewed on appeal from a final paper only if, pursuant to CPLR 5501 (a), the nonfinal order “necessarily affects” the final judgment. “It is difficult to distill a rule of general applicability regarding the ‘necessarily affects’ requirement” … and “[w]e have never attempted, and we do not now attempt, a generally applicable definition” … . That said, to determine whether a nonfinal order “necessarily affects” the final judgment, in cases where the prior order “str[uck] at the foundation on which the final judgment was predicated” we have inquired whether “reversal would inescapably have led to a vacatur of the judgment” … . This is not such a case. In other cases, we have asked whether the nonfinal order “necessarily removed [a] legal issue from the case” so that “there was no further opportunity during the litigation to raise the question decided by the prior non-final order” … .

In resolving plaintiff’s summary judgment motion, the Appellate Division held that factual questions existed as to whether a statutory violation occurred and as to proximate cause, or more specifically as to whether plaintiff’s own acts or omissions were the sole proximate cause of the accident … . That nonfinal order did not remove any issues from the case. Rather, the question of proximate cause and liability was left undecided. The parties had further opportunity to litigate those issues and in fact did so during the jury trial. Bonczar v American Multi-Cinema, Inc., 2022 NY Slip Op 02835, CtApp 4-28-22

Practice Point: A nonfinal order is not appealable to the Court of Appeals unless it “affects the final judgment.” If questions of fact remain after the nonfinal order is issued, the order does not “affect the final judgment” and is not appealable. Here the nonfinal order was the Appellate Division’s denial of plaintiff’s summary judgment motion. The order left open factual questions resolved at trial. Therefore the order did not “affect the final judgment.”

 

QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT IN THIS LABOR LAW 240(1) LADDER-FALL CASE; APPELLATE DIVISION REVERSED; EXTENSIVE THREE-JUDGE DISSENTING OPINION (CT APP). ​

The Court of Appeals, reversing the Appellate Division, over a three-judge dissenting opinion, determined plaintiff in this Labor Law 240(1) ladder-fall case should not have been awarded summary judgment. Plaintiff used an A-frame ladder in a closed position because of limited space. While rerouting pipes in the ceiling, plaintiff received an electric shock and fell to the floor. The majority found questions of fact were raised about whether the ladder failed to protect plaintiff and whether other safety devices should have been provided:

An “accident alone” is insufficient to establish a violation of Labor Law § 240 (1) or causation … . Moreover, Labor Law § 240 (1) is designed to protect against “harm directly flowing from the application of the force of gravity to an object or person” … . We agree with the dissent below that plaintiff was not entitled to partial summary judgment on his Labor Law § 240 (1) claim … . Indeed, questions of fact exist as to whether “the ladder failed to provide proper protection,” whether “plaintiff should have been provided with additional safety devices,” and whether the ladder’s purported inadequacy or the absence of additional safety devices was a proximate cause of plaintiff’s accident … . Cutaia v Board of Mgrs. of the 160/170 Varick St. Condominium, 2022 NY Slip Op 02834, CtApp 4-28-22

Practice Point: Here plaintiff was apparently electrocuted while standing on a closed A-frame ladder and fell to the floor. The happening of the accident alone did not establish that the ladder failed to protect plaintiff or that other safety equipment should have been provided to plaintiff. Therefore plaintiff was not entitled to summary judgment on his Labor Law 240(1) cause of action. There was a three-judge dissenting opinion.

 

IN THIS LABOR LAW 240(1) CASE, PLAINTIFF ALLEGED THE LADDER WAS UNSECURED AND SHIFTED; DEFENDANT ALLEGED PLAINTIFF TOLD HIS SUPERVISOR HE LOST HIS BALANCE AND JUMPED FROM THE LADDER, RAISING A QUESTION OF FACT WHETHER PLAINTIFF’S ACTIONS WERE THE SOLE PROXIMATE CAUSE OF THE ACCIDENT (SECOND DEPT).

The Second Department determined conflicting facts precluded summary judgment in this Labor Law 240(1) ladder-fall case. Plaintiff alleged the ladder was unsecured and shifted when he attempted to descend. The defendant alleged plaintiff told his supervisor he lost his balance and jumped off the ladder which raised a question whether plaintiff’s actions were the sole proximate cause of the accident:

… [T]he defendants raised a triable issue of fact as to whether the ladder shifted to the right and backwards, as the plaintiff testified, or whether the plaintiff’s own actions were the sole proximate cause of the subject accident. The defendants submitted an affidavit from the plaintiff’s supervisor, who averred that the plaintiff had told him, just after the accident occurred while he was still on the roof, that he had lost his balance as he descended the ladder and jumped off the ladder. The different versions of the accident given by the plaintiff create triable issues of fact that required denial of the motion, including a triable issue of fact as to the plaintiff’s credibility … . Jurski v City of New York, 2022 NY Slip Op 02783, Second Dept 4-27-22

Practice Point: Evidence that plaintiff told his supervisor he lost his balance and jumped from the ladder created a triable issue of fact about whether plaintiff’s actions were the sole proximate cause of the accident in this Labor Law 240(1) action.

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PLAINTIFF WAS DIRECTED TO LIFT A HEAVY BOX MANUALLY; THE FACT THAT A FORKLIFT WAS AVAILABLE WAS NOT DETERMINATIVE; A WORKER IS EXPECTED TO FOLLOW ORDERS; PLAINTIFFS’ MOTION TO SET ASIDE THE DEFENSE VERDICT IN THIS LABOR LAW 240(1) ACTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiffs’ motion to set aside the defense verdict in this Labor Law 240(1) action should have been granted. The Labor Law 240(1) claim was reinstated and judgment in favor of plaintiffs was granted. Apparently plaintiff was injured when lifting a heavy box after the stage manager directed him to do so. The fact that a forklift was available would only raise an issue of comparative negligence which will not defeat a Labor Law 240(1) claim:

… [A]lthough defendants established that there was an available safety device, i.e., a forklift, and that plaintiff knew that it was available and that he was expected to use it, plaintiffs established that the stage manager instructed plaintiff and his coworkers to lift the box manually. Regardless of whether that stage manager was plaintiff’s actual supervisor, plaintiff was under no obligation to demand safer methods for moving the box … . To expect plaintiff to refuse the stage manager’s demands “overlooks the realities of construction work” … .

“When faced with an . . . instruction to use an inadequate device [or no device at all], many workers would be understandably reticent to object for fear of jeopardizing their employment and their livelihoods” … . Finocchi v Live Nation Inc., 2022 NY Slip Op 02680, Fourth Dept 4-22-22

​Practice Point: Plaintiff was directed to lift a heavy box manually. A worker is expected to follow directions. The fact that a forklift was available was therefore not determinative. Plaintiffs’ motion to set aside the defense verdict in this Labor Law 240(1) action should have been granted.

 

A HEAVY PUMP, 3 TO 4 FEET IN HEIGHT, WHICH WAS LEANING AGAINST THE WALL, TIPPED OVER AND STRUCK THE PLAINTIFF; 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 was entitled to summary judgment on his Labor Law 240(1) cause of action. A heavy fire pump that was leaning against the wall, unsecured, tipped over and struck plaintiff:

Liability under Labor Law § 240(1) arises where a safety device of the kind enumerated in the statute either proved inadequate to shield against injury resulting directly from the application of the force of gravity to a person or object or where no safety device was provided to shield against such injury … . Here, plaintiff was injured when he and two coworkers were assigned to run conduits along the wall and ceiling of an approximately 8 by 10-foot fire pump room. As they were looking at the wall and ceiling and deciding how to proceed, plaintiff felt a sharp pain in his leg when a 3-to-4 foot tall, 300-500+ pound fire pump, which had been standing upright on the floor, on its narrower end and unsecured, fell on his leg. Where a load positioned on the same level as the injured worker falls a short distance, Labor Law § 240(1) applies if the load, due to its weight, is capable of generating significant force … . Here, the fire pump was required to be secured against tipping or falling and the failure to secure it was a violation of Labor Law § 240(1) … . Grigoryan v 108 Chambers St. Owner, LLC, 2022 NY Slip Op 02620, First Dept 4-21-22

Practice Point: Here a heavy fire pump, 3 t0 4 feet in height, was leaning against a wall on the same level as plaintiff when it tipped over and struck him. An unsecured object positioned on the same level as the injured party which generates significant force when it falls over is covered by Labor Law 240(1).

 

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PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION IN THIS A-FRAME LADDER-FALL CASE; ALTHOUGH NO DEPOSITIONS HAD BEEN TAKEN, THE DEFENDANT FAILED TO SHOW THE SUMMARY JUDGMENT MOTION WAS PREMATURE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action in this A-frame ladder-fall case. The court noted that the motion for summary judgment was not premature, even though no depositions had been taken:

Plaintiff established prima facie that PPC is liable under Labor Law § 240(1) through plaintiff and his coworker’s affidavits that the unstable eight-foot A-frame ladder, which was missing rubber feet, shifted, causing him to fall … . It was undisputed that PPC was the owner of the property. Plaintiff also established that his work of retrofitting light fixtures was covered under § 240(1) and did not constitute mere maintenance … .

We reject PPC’s argument that plaintiff’s motion was premature (CPLR 3212[f]). The fact that no depositions have been taken does not preclude summary judgment in plaintiff’s favor, as PPC failed to show that discovery might lead to facts that would support its opposition to the motion … . PPC also failed to show that facts essential to its opposition were within plaintiff’s exclusive knowledge … . Its argument that deposition testimony might further illuminate issues raised by the affidavits is unavailing. “The mere hope that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny such a motion” … . Laporta v PPC Commercial, LLC, 2022 NY Slip Op 02624, First Dept 4-21-22

Practice Point: In order for a pre-discovery summary judgment motion to be deemed premature, the opposing party must show discovery might lead to facts which would support opposition to the motion (not the case here).

 

QUESTIONS OF FACT WHETHER PEBBLE-SIZED DEBRIS WHICH FELL ON PLAINTIFF AND ALLEGEDLY SERIOUSLY INJURED HIS EYE GAVE RISE TO LIABILITY UNDER LABOR LAW 240(1) AND 241(6) (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined there were questions of fact about liability pursuant to Labor Law 240(1) and 241(6). Plaintiff was working in a shaft when pebble-sized debris fell on him, allegedly seriously injuring his eye. There were questions of fact whether the distance the debris fell was de minimus and whether the force with which the debris fell was de minimus. There was also a question of fact whether planking should have been installed above the shaft to protect against falling debris:

There are issues of fact as to whether the debris that fell on plaintiff — taking into account the elevation differential, the debris’ weight, and the amount of force it could generate …  — was “a load that required securing for the purposes of the undertaking at the time it fell” … , and whether his injury was a direct consequence of defendants’ “failure to provide adequate protection against a risk arising from a physically significant elevation differential” … . The trier of fact could find that the elevation differential between plaintiff and the level from which the debris fell was de minimis, that the debris’ weight was inconsequential, or that the debris could not have generated any meaningful amount of force, and determine that plaintiff’s “injuries were the result of [a] usual and ordinary danger[] at a construction site” … .. However, the trier of fact could determine that the elevation differential of at least one story was not de minimis, that the weight of the debris and the force it was capable of generating were significant, and that the debris should have been secured for the purpose of the undertaking. Peters v Structure Tone, Inc., 2022 NY Slip Op 02518, First Dept 4-19-22

Practice Point: There were questions of fact whether injury from falling pebble-sized debris is covered under Labor Law 240(1) and 241(6). The force generated by the falling debris could be found to be de minimus.

 

THE EIGHT-INCH WIDE BEAM CLAIMANT WAS MOVING ALONG WHEN HE FELL WAS THE FUNCTIONAL EQUIVALENT OF A SCAFFOLD, BRINGING THE ACTION WITHIN THE SCOPE OF LABOR LAW 240(1); THE SAFETY LINE PROVIDED TO CLAIMANT DID NOT PROTECT HIM FROM THE FALL; CLAIMANT WAS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined claimant’s motion for summary judgment on the Labor Law 240(1) cause of action should have been granted. Claimant, Lazo, was moving along an eight-inch wide, 17-foot long, beam suspended above a platform when he fell. He was attached to two safety lines which he had to detach and reattach to anchorage points. He fell while in the process of reattaching one of the lines. The second line did not prevent the fall:

Lazo would use a hook at the end of each safety line to secure it to various anchorage points on another horizontal beam located above him. To move across the beam, workers were instructed to unhook the first safety line from the first anchorage point, connect it to a second anchorage point, and then repeat this process with the second safety line. This effectively allowed workers to move along the beam while always having at least one safety line attached to an anchorage point. * * *

Lazo’s deposition testimony established, prima facie, that his accident was within the purview of Labor Law § 240(1), since the beam from which he fell was being used as the functional equivalent of a scaffold … . Lazo’s deposition testimony also established, prima facie, that his second safety line was attached to an anchorage point but was nevertheless insufficient to prevent him from falling … . Lazo v New York State Thruway Auth., 2022 NY Slip Op 02400, Second Dept 4-13-22

Practice Point: Here an eight-inch wide, 17 foot-long beam suspended eight feet above a platform was the functional equivalent of a scaffold. The fall from the beam therefore was within the scope of Labor Law 240(1).

 

BOARDING UP A VACANT HOUSE WAS WITHIN THE SCOPE OF LABOR LAW 240(1) AND 241(6) (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s work, boarding up a vacant house to prevent access, was within the scope of work covered by Labor Law 240 (1) and Labor Law 241(6). Plaintiff allegedly fell from a ladder when attempting to board up a window:

… [P]laintiff’s work of boarding up the house, thus making it uninhabitable, was “altering” the premises within the meaning of Labor Law § 240(1), as it constituted a significant physical change to the configuration or composition of the building … .. Further, as the work the plaintiff was engaged in constituted “alteration,” it was within the scope of “construction work” for purposes of Labor Law § 241(6) … . Nucci v County of Suffolk, 2022 NY Slip Op 02423, Second Dept 4-13-22

​Practice Point: Boarding up a vacant house is covered by Labor Law 240(1) and 241(6).

 

HEAVY BARN DOORS WHICH HAD BEEN TAKEN OFF THE HINGES FELL ON PLAINTIFF AS HE DELIVERED SHEETROCK TO THE BARN WHICH WAS BEING CONVERTED TO A MUSIC STUDIO; THERE WERE QUESTIONS OF FACT WHETHER THE DOORS PRESENTED A DANGEROUS CONDITION AND CONSTITUTED AN ELEVATION-RELATED HAZARD AND WHETHER THIS WAS A COMMERCIAL PROJECT TO WHICH THE HOMEOWNER EXEMPTION DID NOT APPLY (LABOR LAW 200 AND 240(1)) (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined defendant’s motion for summary judgment on the Labor Law 200 a nd 240(1) causes of action should not have been granted. Plaintiff was told to deliver sheetrock through an opening where heavy double barn doors were being restored. The hinges had been removed and the doors were held in place by wooden wedges. The doors fell on plaintiff. The Third Department found there were questions of fact whether the doors presented a dangerous condition (Labor Law 200), an elevation-related hazard (Labor Law 240(1), and whether the project was commercial in nature such that the homeowner exemption did not apply. With regard to the homeowner exemption, the court wrote:

Although Labor Law § 240 (1) imposes a nondelegable duty upon owners to protect workers engaged in construction-related activities, “the Legislature has carved out an exemption for the owners of one and two-family dwellings who contract for but do not direct or control the work” … . “That exemption, however, is not available to an owner who uses or intends to use the dwelling only for commercial purposes” … .

… [D]efendants, as the parties seeking the benefit of the statutory exemption, had the burden of establishing that the property was not being used solely for commercial purposes … . This they failed to do. [Defendant’s] deposition testimony established that he is a professional musician and that the structure was being altered to use as a music studio and a photography workspace. Moreover, defendants failed to submit an affidavit addressing whether they intended to use the structure for commercial or noncommercial purposes. [W]e find that defendants failed to demonstrate their entitlement to the homeowner exemption as a matter of law and that a question of fact exists regarding the application of the homeowner exemption … .Hawver v Steele, 2022 NY Slip Op 02322, Third Dept 4-7-22

Practice Point: The homeowner exemption to Labor Law liability does not apply where the construction is for commercial purposes. Here the defendants did not demonstrate the renovation of a barn for use as a music studio was not for commercial purposes. Therefore defendants motion for summary judgment on the Labor Law 240(1) cause of action should not have been granted.

 

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