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ALTHOUGH PLAINTIFF FELL FROM THE SCAFFOLDING SYSTEM CONSTRUCTED BY SWING, A SUBCONTRATOR, PLAINTIFF’S LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION AGAINST SWING SHOULD HAVE BEEN DISMISSED; SWING WAS NOT A CONTRACTOR OR OWNER, OR A CONTRACTOR’S OR OWNER’S STATUTORY AGENT, WITHIN THE MEANING OF THE STATUTES (FIRST DEPT).

The First Department, reversing Supreme Court, determined the Labor Law 240(1) and 241(6) causes of action against Swing, the company which constructed  the scaffolding, should have been dismissed. Plaintiff fell when, instead of using the scaffold walkway system, he attempted to descend from some scaffolding pipes to the wooden walkway and a wooden plank broke:

The lower court should have dismissed the Labor Law §§ 240(1) and 241(6) claims as against Swing, the scaffold system subcontractor to general contractor 4 Star, because it is undisputed that Swing was not a contactor or owner within the meaning of the statutes. Nor was it a contractor or owner’s statutory agent. Although it contractually retained the right to reenter the premises and inspect the scaffold system, Swing did not have any employees on site during 4 Star’s work, and it did not inspect the scaffold system while it was in place … . For all intents and purposes, once Swing constructed the scaffold system, it returned to the premises only to deliver supplies and to disassemble the scaffold system at the end of the project. Guevara-Ayala v Trump Palace/Parc LLC, 2022 NY Slip Op 03049, First Dept 5-5-22

Practice Point: Here the subcontractor which constructed the scaffolding from which plaintiff fell was not a contractor or owner, or a contractor’s or owner’s statutory agent within the meaning of Labor Law 240(1) or 241(6). Therefore the Labor Law 240(1) and 241(6) causes of action against the subcontractor should have been dismissed.

 

PLAINTIFF FELL OFF THE EDGE OF A BATHTUB WHEN HE WAS ATTEMPTING TO INSTALL A SHOWER-CURTAIN ROD; THE EDGE OF THE TUB WAS THE EQUIVALENT OF A SCAFFOLD AND PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION; TWO-JUSTICE DISSENT (FIRST DEPT). ​

The First Department, over a two-justice dissent, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff alleged he needed to stand on the rim of a bathtub to install a shower-curtain rod. He hit his head and fell when attempting to step up on the rim of the tub. The defendants argued the installation could have been done from floor level. There was no room in the bathroom for an A-frame ladder:

The motion court properly granted plaintiff’s motion for partial summary judgment on his section 240(1) claim. Plaintiff established prima facie that he was entitled to judgment by evidence that he suffered harm that “flow[ed] directly from the application of the force of gravity” when he fell from the edge of the bathtub, which served as the functional equivalent of a scaffold or ladder … . The evidence showed that there was insufficient room inside the bathroom for plaintiff to use an A-frame ladder and that plaintiff instead was forced to reach the elevated work area by standing on the edge of the bathtub in order to install the shower-curtain rods. Plaintiff testified that standing on the edge of the tub was necessary because he otherwise would lack the necessary leverage to tighten the screws with an Allen wrench.

In opposition, [defendants] failed to raise an issue of fact. They rely on an affidavit by their biomechanical expert, Mr. Bove, who opined that plaintiff’s overhead reach was sufficient to perform the task while standing on the ground or inside the bathtub. Bove’s initial affidavit, however, ignored plaintiff’s testimony that he needed the height in order to have leverage so that he would have enough strength to tighten the screws with the Allen wrench. Vitucci v Durst Pyramid LLC, 2022 NY Slip Op 02968, First Dept 5-3-22

Practice Point: Here plaintiff fell attempting to stand on the edge of a bathtub to install a shower-curtain rod. The majority concluded the edge of the bathtub was the equivalent of a scaffold and plaintiff’s fall was covered under Labor Law 240(1). Two dissenters argued the job could have been performed from ground level.

 

PLAINTIFF’S DECEDENT WAS IN THE ELEVATOR SHAFT WHEN THE ELEVATOR, OPERATING NORMALLY, DESCENDED AND CRUSHED HIM; THE ELEVATOR WAS NOT A “FALLING OBJECT” WITHIN THE MEANING OF LABOR LAW 240(1); COMPLAINT DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the elevator which descended and crushed plaintiff’s decedent, who had entered the shaft, was not a “falling object” within the meaning of Labor Law 240(1). Therefore the complaint against defendants must be dismissed:

Plaintiff’s decedent, an elevator mechanic, entered an elevator shaft on the lobby level, under an elevator that he had sent to one of the floors above. After the shaft doors closed, the call button was pressed, and the elevator descended to the lobby, crushing the decedent. The parties agree that the elevator was working normally, in the “automatic” setting, at the time of the accident.

The Labor Law § 240(1) claim must be dismissed because the elevator did not “fall” as a result of the force of gravity but descended in automatic mode, as it was designed to do … . Luna v Brodcom W. Dev. Co. LLC, 2022 NY Slip Op 02873, First Dept 4-28-22

​Practice Point: In order to be covered under Labor Law 240(1), this elevator accident must have been the result of the elevator “falling.” Because the elevator was descending normally when it struck and killed plaintiff, the complaint was dismissed.

 

WHETHER “CLEANING” IS A COVERED ACTIVITY UNDER LABOR LAW 240(1) DEPENDS ON WHETHER THE CLEANING WORK IS “ROUTINE;” “ROUTINE” CLEANING WORK IS NOT COVERED (CT APP). ​

The Court of Appeals, reversing the Appellate Division, determine plaintiff should not have been awarded summary judgment on the Labor Law 240(1) cause of action and defendant’s summary judgment motion should have been granted. The issue was whether plaintiff was injured doing “cleaning” work covered by the Labor Law. The Court of Appeals held plaintiff was doing “routine” work, which therefore did not qualify as “cleaning” under Labor Law 240(1). The facts were not explained:

Labor Law § 240 (1) requires certain contractors and property owners to provide adequate safety devices when workers engage in particular tasks involving elevation-related risks. To recover under section 240 (1) for an injury caused by a failure to provide such safety devices, plaintiffs must first show that they were engaged in one of that section’s enumerated activities including, among others, “cleaning.” To determine whether an activity is “cleaning” within the meaning of the statute, courts apply a four-factor analysis (see Soto v J. Crew Inc., 21 NY3d 562, 568 [2013]). The first factor considers whether the work is “routine, in the sense that it is the type of job that occurs on a daily, weekly or other relatively-frequent and recurring basis as part of the ordinary maintenance and care of commercial premises” (id. [emphasis added]). This factor does not involve a fact-specific assessment of a plaintiff’s regular tasks—it instead asks whether the type of work would be expected to recur with relative frequency as part of the ordinary maintenance and care of a commercial property (see id. at 569).

Here, plaintiff’s work was “routine” within the meaning of the first factor, which therefore weighs against concluding that he was “cleaning.” “[V]iewed in totality,” the Soto factors do not “militate in favor of placing the task” in the category of “cleaning” (id. at 568-569). Healy v EST Downtown, LLC, 2022 NY Slip Op 02836, CtApp 4-28-22

​Practice Point: Injury while “cleaning” is not covered under Labor Law 240(1) if it is “routine.”

 

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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).

 

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