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BECAUSE PLAINTIFF HAD TO STAND ON THE GUARDRAILS OF THE MANLIFT TO REACH WHAT HE WAS WORKING ON, THE MANLIFT WAS NOT APPROPRIATE EQUIPMENT; PLAINTIFFS WERE 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. Plaintiff had to stand on the guardrails of a manlift to reach what he was working on. He received an electric shock and fell:

Plaintiffs should be granted summary judgment as to defendants’ liability under the statute. The record demonstrates that plaintiff Matthew S. Healy (plaintiff) fell from the guardrails of a manlift after sustaining an electric shock. Plaintiff was required to stand on the manlift’s guardrails because HVAC ductwork prevented him from raising the manlift to the area in which he needed to work. Thus, the manlift was “inappropriate for the task at hand in light of the configuration of the building” and failed to afford plaintiff adequate protection pursuant to the statute … .Healy v BOP One N. End LLC, 2022 NY Slip Op 01388, First Dept 3-3-22

 

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DEFENDANTS NOT LIABLE FOR INJURY SUFFERED WHILE PLAINTIFF WAS DOING WHAT HE WAS HIRED TO DO–REPAIR AN ELEVATOR; ISSUE CONSIDERED EVEN THOUGH RAISED FOR THE FIRST TIME ON APPEAL; IN ADDITION, DEFENDANTS ENTITLED TO THE HOMEOWNER’S EXEMPTION FROM LIABILITY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendants’ motion for summary judgment in this Labor Law 200 and common law negligence action should have been granted. Plaintiff was injured doing the work he was hired to do—repairing an elevator. The issue was considered even though it was first raised on appeal. In addition, defendants were entitled to the homeowner’s exemption from liability pursuant to Labor Law 240(1):

We find merit to the defendants’ contention—raised for the first time on appeal but fully briefed by both sides … —that the injured plaintiff cannot succeed in his causes of action alleging a violation of Labor Law § 200 and common-law negligence, as “[n]o responsibility rests upon an owner of real property to one hurt through a dangerous condition which he [or she] has undertaken to fix”… . Indeed, the evidence in the record conclusively establishes that the injury-producing accident was caused by an unidentified defect in the very elevator that the injured plaintiff’s employer had been hired to repair. Accordingly, the defendants were entitled to summary judgment dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence.

… The Supreme Court properly granted that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1). The homeowner’s exemption to liability under Labor Law § 240(1) is available to “owners of one and two-family dwellings who contract for but do not direct or control the work.” Here, the defendants, as owners of the single-family townhouse where the accident occurred, established, prima facie, that they did not direct or control the home improvement work being done by the injured plaintiff and his employer at the time of the subject accident … . Soto v Justin Hochberg 2014 Irrevocable Trust, 2022 NY Slip Op 01193, Second Dept 2-23-22

 

THE SCAFFOLD ON WHICH PLAINTIFF WAS STANDING WAS INSECURE, WHICH IS A VIOLATION OF LABOR LAW 240(1); WHETHER THERE WAS SAFETY EQUIPMENT WHICH WAS NOT USED, EVEN IF PLAINTIFF WAS INSTRUCTED TO USE IT, IS IRRELEVANT (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on his Labor Law 240(1) cause of action should have been granted. There were no witnesses to plaintiff’s scaffold-fall. Plaintiff testified the unsecured scaffold moved when he started using the chipping gun and the unsecured plywood on which he was standing caused him to lose his balance. The fact that there may have been scaffold railings available and the evidence plaintiff was instructed to use the railings did not defeat summary judgment because comparative negligence is not part of the analysis:

The purpose of Labor Law § 240 (1) “is to protect workers by placing ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor. . . instead of on workers, who are scarcely in a position to protect themselves from accident” … . Thus, the statute imposes a nondelegable duty on owners and contractors to provide “devices which shall be so constructed, placed and operated as to give proper protection to” those individuals performing the work … . “Under Labor Law § 240 (1) it is conceptually impossible for a statutory violation (which serves as a proximate cause for a plaintiff’s injury) to occupy the same ground as a plaintiff’s sole proximate cause for the injury” … . Therefore, if a violation of Labor Law § 240 (1) is a proximate cause of an injury, the plaintiff cannot be solely to blame for it … . * * * [E]ven if there were evidence that adequate safety devices were readily available at the work site and that plaintiff knew he was expected to use them, it would not render plaintiff the sole cause of the accident, because the unsecured scaffold with unlevel, uneven, and unsecured floor planks initially caused him to lose his balance and fall …”. Quiroz v Memorial Hosp. for Cancer & Allied Diseases, 2022 NY Slip Op 01130, First Dept 2-22-22

 

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PLAINTIFF’S ACTIONS WERE NOT THE SOLE PROXIMATE CAUSE OF HIS FALL FROM A MAKESHIFT PLATFORM ON A LULL (FORKLIFT) USED TO REACH ELEVATED AREAS; PLAINTIFF’S MOTION FOR A DIRECTED VERDICT ON HIS LABOR LAW 240(1) CAUSE OF ACTION AGAINST THE HOMEOWNER WHO LEASED THE LULL AND DIRECTED PLAINTIFF’S WORK SHOULD HAVE BEEN GRANTED (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined plaintiff’s motion for a directed verdict on his Labor law 241(6) cause of action should have been granted. Plaintiff fell from a makeshift platform he placed on a lull (forklift) to reach elevated areas of a house he was wrapping with an insulation material (Tyvek). The central question was whether plaintiff’s own actions were the sole proximate cause of his fall and injuries:

… [I]t is beyond dispute that the lull was not an adequate safety device for the elevated work being performed by plaintiff at the time of his fall … . This conclusion is not changed by defendant’s provision of harnesses incompatible with the lull … . Plaintiff’s accident was plainly the direct result of the makeshift lull setup failing, and the parties are therefore in agreement that, unless plaintiff’s choice not to use other available safety devices when installing the Tyvek was the sole proximate cause of his own injuries, plaintiff has established his Labor Law § 240 (1) claim.

Plaintiff indeed brought extension ladders and scaffolding with him to the job site, and it appears that defendant provided some ladders as well. …[T]here is simply no trial evidence to suggest that plaintiff knew he was expected to use a ladder or scaffolding to wrap the front of the house with Tyvek. It is uncontroverted that use of the lull with a makeshift platform had become commonplace at the job site in the weeks preceding plaintiff’s accident, that the scaffolding was set up at the rear of the house specifically because the lull could not traverse the terrain there and that defendant’s only affirmative safety-related instructions to plaintiff regarding the subject elevated work were to either use a harness or construct a platform, both of which involved use of the lull. As proof of the foregoing element is lacking, there is no rational process by which a jury could conclude that plaintiff was the sole proximate cause of his own injuries … . DeGraff v Colontonio, 2022 NY Slip Op 01074, Third Dept 2-17-22

 

THE TENANT WHICH SUPPLIED THE ALLEGEDLY DEFECTIVE LADDER TO THE PLAINTIFF IN THIS LADDER-FALL CASE WAS NOT ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the tenant, Fresh Direct, which supplied the allegedly defective ladder to plaintiff was not entitled to summary judgment on the Labor Law 200 and common law negligence causes of action. Plaintiff fell 20 feet when the ladder slipped:

Fresh Direct failed to establish, prima facie, that it did not have actual or constructive notice of the allegedly defective condition of the ladder that, according to the plaintiff, it provided at the time of the accident … . Hamm v Review Assoc., LLC, 2022 NY Slip Op 01011, Second Dept 2-16-22

 

NEITHER THE BUILDING OWNER NOR THE PROSPECTIVE BUILDING OWNER HAD SUPERVISORY CONTROL OVER THE PREMISES OR THE WORK, INCLUDING THE WORK OF PLAINTIFF AND HIS CO-WORKER WHO APPARENTLY MOPPED THE FLOOR WHERE PLAINTIFF SLIPPED AND FELL; THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION AGAINST THE OWNER AND PROSPECTIVE OWNER SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the Labor Law 200 and common law negligence causes of action against the building owner (Grand) and the prospective purchaser of the building (Empire) should have been dismissed. Plaintiff slipped and fell on a wet floor which apparently had just been mopped by a co-worker. Neither Grand nor Empire had general supervisory authority over the premises and did not supervise or control the work of plaintiff or the co-worker:

The building was owned by defendant Grand but was under a contract of sale to defendant Empire, with a closing date of February 1, 2017. Under the contract of sale, Empire was given access to the premises prior to closing to perform renovations and to stage and lease the apartments. Empire hired plaintiff’s employer Infinity to act as general contractor for the renovations. According to the record, Empire did not have any employees at the premises on the date of the accident and did not supervise Infinity’s work. Grand had no employees or agents at the premises full time, but an employee of a company related to Grand would occasionally visit the building to check that there were no problems and that everything was clean. The employee visited the building approximately four or five times, approximately twice in the four months prior to the accident, and once during construction. No one employed by Grand regularly supervised the construction ongoing at the premises. Arnold v Empire 326 Grand LLC, 2022 NY Slip Op 00965, First Dept 2-15-22

 

DEFENDANTS DEMONSTRATED (1) THE PROTRUDING PIPE OVER WHICH PLAINTIFF TRIPPED WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS, (2) THEY DID NOT EXERCISE SUPERVISORY CONTROL OVER PLAINTIFF’S WORK, AND (3) THE INDUSTRIAL CODE PROVISION PROHIBITING THE ACCUMULATION OF DEBRIS DID NOT APPLY; THE LABOR LAW 200 AND 241(6) CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the defendants’ motion for summary judgment on the Labor Law 200 and 241(6) causes of action should have been granted. Plaintiff, while pouring a concrete floor, tripped over a drainage pipe which had been covered by a blanket to protect it from the concrete. The defendants demonstrated: (1) the pipe was open and obvious and not inherently dangerous; (2) they did not exercise supervisory control over plaintiff’s work; and (3), the Industrial Code provision which addresses accumulation of debris did not apply:

… [T]he defendants met their prima facie burden of demonstrating both that the allegedly dangerous condition was open and obvious and not inherently dangerous, and that they lacked the authority to supervise or control the plaintiff’s work. …

… [T]he defendants demonstrated that 12 NYCRR 23-1.7(e)(2) is inapplicable because the protruding drainage pipe over which the plaintiff allegedly fell was a permanent and an integral part of what was being constructed … . Sanchez v BBL Constr. Servs., LLC, 2022 NY Slip Op 00890, Second Dept 2-9-22

 

THERE WERE QUESTIONS OF FACT WHETHER PLAINTIFF SLIPPED AND FELL ON ICE AND SNOW IN A “PASSAGEWAY” WITHIN THE MEANING OF THE INDUSTRIAL CODE; THEREFORE DEFENDANT WAS NOT ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 241(6) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined defendant’s summary judgment on the Labor Law 241(6) should not have been granted. Plaintiff alleged he slipped and fell on ice and snow on a passageway which had not been cleared of ice and snow:

Labor Law § 241(6) imposes on owners, general contractors, and their agents a nondelegable duty to provide “reasonable and adequate protection” to workers engaged in construction, demolition, and excavation activities by complying with Industrial Code regulations that specify concrete safety directives, regardless whether they exercised supervision or control over the work … . Industrial Code § 23-1.7(d) provides that employers shall not allow any employee to use a “floor, passageway, walkway, scaffold, platform, or other elevated work surface which is in a slippery condition,” and specifically enumerates ice and snow as foreign substances that must be removed, sanded, or covered. Plaintiff was allegedly injured at the construction site where he was working when he slipped and fell on snow and ice after he had passed through a perimeter gate, towards his employer’s shanty nearby upon arriving for work one morning. Defendant construction manager … testified the shanty area “was commonly used as a roadway for egress” and an “egress path” for workers going from the office trailers on one side of the shanties to the building under construction. Although it is unclear on this record whether there was a defined path where plaintiff fell, it is also unclear whether he was within the “shanty area” that was used as a “roadway for egress” and an “egress path.” Accordingly, issues of fact exist as to whether plaintiff was in a defined walkway within the meaning of Industrial Code § 23-1.7(d) … . Lapinsky v Extell Dev. Co., 2022 NY Slip Op 00815, First Dept 2-8-22

 

DEFENDANT WAS A PRIME, NOT A GENERAL, CONTRACTOR AND DEMONSTRATED HE DID NOT EXERCISE SUPERVISION OR CONTROL OVER PLAINTIFF’S WORK; THEREFORE DEFENDANT WAS NOT LIABLE UNDER LABOR LAW 240(1) AND 241(6); HOWEVER, DEFENDANT DID EXERCISE SOME CONTROL OVER WORK-SITE SAFETY AND THEREFORE MAY BE LIABLE UNDER LABOR LAW 200 (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined defendant prime contractor, Kilian, did not supervise or control plaintiff’s work and therefore was not liable on the Labor Law 240(1) and 241(6) causes of action stemming from plaintiff’s fall down an open stairway at a house under construction. The Fourth Department noted the difference between a general contractor and a prime contractor. Here, Kilian (the prime contractor) demonstrated he did not exercise supervision or control over plaintiff’s work. However, Kilian did exercise some control over work-site safety and therefore may be liable under Labor Law 200 for the dangerous condition (open stairwell):

“A general contractor will be held liable under [Labor Law §§ 240 (1) and 241 (6)] if it was responsible for coordinating and supervising the entire construction project and was invested with a concomitant power to enforce safety standards and to hire responsible contractors” … . Here, Collins, not Kilian, hired plaintiff’s employer to perform work on the project, and Kilian established through the documentary evidence and deposition testimony that he exercised no control or supervision over plaintiff’s work and had no authority to enforce safety standards against plaintiff … . Thus, Kilian established as a matter of law that he was not a general contractor subject to liability pursuant to Labor Law §§ 240 (1) or 241 (6), and plaintiff failed to raise a triable issue of fact … . …

… [T]o the extent that the section 200 claim against Kilian is based on the theory that he was negligent with respect to the dangerous condition of the stairwell, we conclude that Kilian failed to establish as a matter of law that he did not have control over the work site or that he lacked actual or constructive notice of the dangerous condition, i.e., the unguarded, open stairwell … . Clifton v Collins, 2022 NY Slip Op 00780, Fourth Dept 2-4-22

 

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THE WRENCH WHICH FELL AND STRUCK PLAINTIFF COULD HAVE BEEN TETHERED TO THE WORKER WHO DROPPED IT; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION; PLAINTIFF NEED NOT SUBMIT AN EXPERT AFFIDAVIT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on the Labor Law 240(1) cause of action should have been granted. A wrench slipped out of a co-worker’s hand and fell 10 or 15 feet striking plaintiff. Defendant’s expert opinion that the wrench could not be tethered to a wall missed the point that the wrench could be tethered to the worker. Plaintiff was not required to submit an expert opinion:

Plaintiff is entitled to summary judgment on the Labor Law § 240(1) claim based on [defendant] NYCHA’s failure to provide an adequate safety device to protect him from falling objects that were required to be secured … . Third-party defendant Vestar, Inc.’s expert opinion that the wrench “could not have been functionally employed if it was secured/tethered on the parapet wall” completely misses the point, since the wrench could have been tethered to the worker. … [T]he accident report … made the recommendation “to use tethering devices while working from heights,” to prevent reoccurrence of such an accident … . Contrary to NYCHA’s and Vestar’s contention, plaintiff was not required to proffer an expert affidavit … . Rincon v New York City Hous. Auth., 2022 NY Slip Op 00639, First Dept 2-1-22

 

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