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THE PROPERTY OWNER AND GENERAL CONTRACTOR FAILED TO DEMONSTRATE THAT THE INDUSTRIAL CODE PROVISION REQUIRING EMPLOYERS TO ENSURE THE FLOOR AT THE WORK SITE IS NOT SLIPPERY DID NOT APPLY TO THE FLOOR OF A TRUCK OWNED AND OPERATED BY A THIRD PARTY WHICH DELIVERED MATERIALS TO THE WORK SITE; HERE PLAINTIFF ALLEGED HE SLIPPED AND FELL ON OIL ON THE FLOOR OF THE TRUCK AS HE WAS ATTEMPTING TO UNLOAD IT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant property owner and general contractor were not entitled to summary judgment on the Labor Law 241(6) cause of action, even though plaintiff’s slip and fall was allegedly caused by oil on the floor of a truck used to deliver elevator components to the work site:

Habberstad [the property owner] and T.G. Nickel [the general managger] failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated on 12 NYCRR 23-1.7(d) insofar as asserted against each of them. Section 23-1.7(d) of the Industrial Code provides that “[e]mployers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition.” Here, contrary to the Supreme Court’s conclusion, Habberstad and T.G. Nickel failed to make a prima facie showing that the floor of the truck on which the injured plaintiff was performing work was not the type of surface contemplated under section 23-1.7(d) … . Schutt v Dynasty Transp. of Ohio, Inc., 2022 NY Slip Op 01473, Second Dept 3-9-22

Practice Point: The Industrial Code provision requiring employers to ensure floors at the work site are not slippery may apply to the floors of trucks used to deliver material to the work site. Here the plaintiff alleged he slipped and fell on oil on the floor of a truck he was attempting to unload. The appellate court determined the property owner’s and the general contractor’s motions for summary judgment on the Labor Law 241(6) cause of action should not have been granted.

PLAINTIFF ROOFER WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION BECAUSE HE FELL THROUGH AN UNPROTECTED HOLE IN THE ROOF WHICH WAS COVERED ONLY BY A SHEET OF BLACK PLASTIC; THE FACT THAT PLAINTIFF HAD UNTIED HIS SAFETY HARNESS SO HE COULD ASSIST A CO-WORKER DID NOT PRECLUDE SUMMARY JUDGMENT BECAUSE COMPARATIVE NEGLIGENCE IS NOT RELEVANT UNDER LABOR LAW 240(1) (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the fact that plaintiff untied his harness so he could assist a fellow roofer in another area of the roof did not preclude summary judgment in plaintiff’s favor on the Labor Law 240(1) cause of action. Plaintiff, when walking toward the co-worker he was going to assist, fell through a hole in the roof that was concealed by a sheet of black plastic:

… [T]he plaintiff established, prima facie, that Labor Law § 240(1) was violated and that the violation was a proximate cause of his injuries. The undisputed evidence established that the plaintiff was exposed to the elevation-related risk of the hole that was cut into the roof, that the hole through which the plaintiff fell was uncovered and unguarded, and that the location of the hole was concealed by an ice and water shield. The plaintiff established that the absence of protective equipment covering or guarding the hole was a proximate cause of his injuries. Indeed, in granting summary judgment on the issue of liability on the Labor Law § 241(6) cause of action, the Supreme Court found that the defendants failed to cover or guard the hole as required by the Industrial Code, and that such failure was a proximate cause of the plaintiff’s injuries. “[W]hen the evidence establishes the absence of any safety devices . . . the statutes’ [Labor Law § 240(1)] clear dictates have not been met. . . If proximate cause is established, the responsible parties have failed, as a matter of law, to ‘give proper protection'” … .

… [T]he defendants failed to raise a triable issue of fact as to whether there was a statutory violation and whether the plaintiff’s own conduct was the sole proximate cause of the accident … . Since the plaintiff established a violation of the statute and that the violation was a proximate cause of his fall, the plaintiff’s comparative negligence, if any, is not a defense to the Labor Law § 240(1) cause of action … . Mejia v 69 Mamaroneck Rd. Corp, 2022 NY Slip Op 01449, Second Dept 3-9-22

Practice Point: Plaintiff fell through an unprotected hole in the roof covered only by a sheet of black plastic. Even though he had untied his safety harness at the time of the fall, summary judgment on his Labor Law 240(1) cause of action was awarded by the appellate court because comparative negligence is not defense.

 

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DEFENDANT’S EXPERT’S AFFIDAVIT ITSELF RAISED QUESTIONS OF FACT AND WAS OTHERWISE DEFICIENT IN THIS LABOR LAW 240(1) LADDER FALL CASE; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff’s Labor Law 240(1) cause of action should not have been dismissed. Plaintiff alleged he fell off a ladder while cleaning glass with an extension pole. The court noted that the defendant’s expert affidavit was deficient and itself raised questions of fact precluding summary judgment in favor of the defendant:

Summary dismissal of the Labor Law § 240(1) claim is precluded by issues of fact as to whether plaintiff was exposed to an elevation-related risk “attendant to his work [of washing windows] as it was intended to be performed” … . Plaintiff testified that he performed the work using an extension pole with a squeegee attached to one end, while both of his feet were on the rung one or two steps below the top of a 12-foot ladder. Plaintiff was unable to estimate the height of the glass except that it was more than 15 feet above the floor, but he stated that he could not have cleaned the glass while standing on the floor because he would not have been able to apply sufficient force to the glass. * * *

The [defendant’s] expert’s statements raised issues of fact as to his own credibility in opining that plaintiff could have cleaned all of the glass while standing on the floor and plaintiff’s description of the supplies he needed to use and did use in performing the work. Durasno v 680 Fifth Ave. Assoc., L.P., 2022 NY Slip Op 01413, First Dept 3-8-22

Practice Point: Here the defendant’s expert’s affidavit failed to address all of the allegations made by plaintiff in this Labor Law 240(1) ladder-fall case and raised issues as to the expert’s credibility. Defendant’s motion for summary judgment should not have been granted.

 

A STACK OF SHEETROCK BOARDS WHICH WERE LEANING AGAINST A WALL FELL ON PLAINTIFF; THERE WERE QUESTIONS OF FACT ABOUT WHETHER IT WAS A GRAVITY-RELATED EVENT AND WHETHER THE ELEVATION DIFFERENTIAL WAS DE MINIMUS (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined there was a question of fact whether plaintiff could recover for injuries under Labor Law 240(1). A stack of 25 to 30 sheetrock boards which had been leaning against a wall fell on him. The court noted that the Labor Law 241(6) cause of action was properly dismissed because the incident happened in an apartment, not a “passageway:”

… [T]he record presents issues of fact as to whether plaintiff’s injuries flowed directly from the application of the force of gravity to the sheetrock, whether the elevation differential was de minimis, and whether the combined weight of the sheetrock panels could generate a significant amount of force as it fell … . Kuylen v KPP 107th St., LLC, 2022 NY Slip Op 01419, First Dept 3-8-22

​Practice Point: A stack of sheetrock boards which had been leaning against a wall fell on plaintiff. There were questions of fact re: whether the accident was covered by Labor Law 240(1) as a gravity-related event where the elevation differential was not de minimus.

 

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

 

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