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PLAINTIFF ALLEGED HE WAS STRUCK BY A BRICK WHICH RICOCHETED OUT OF A CHUTE USED FOR DUMPING DEBRIS FROM THE UPPER FLOORS OF A BUILDING UNDERGOING DEMOLITION; THE CONTRACTOR’S MOTION FOR SUMMARY JUDGMENT ON LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant general contractor’s motion for summary judgment on the Labor Law 240(1) and 241(6) causes of action should not have been granted. During the demolition of a building plaintiff (allegedly) was struck by a brick which ricocheted out of a chute used for dumping debris from the upper floors:

The debris that was being removed from the building was thrown down the elevator chute, and the plaintiff’s injuries were caused by materials which descended from a higher floor and ricocheted out of the chute into the area where the plaintiff was working. The protections of Labor Law § 240(1) are implicated because the plaintiff’s injuries were caused either by the inadequacy of the chute in protecting him from the elevation-related risk resulting from the disposal of the debris down that chute, or the failure to employ other safety devices for the removal of the debris, which might have provided the necessary protection … . …

In support of that branch of its motion which was for summary judgment dismissing the Labor Law § 241(6) cause of action, [the contractor] failed to demonstrate, prima facie, that 12 NYCRR 23-1.7(a)(1), 23-1.20(a), 23-2.5(a), and 23-3.3(e) did not apply to the facts of this case, or that the alleged violations of these provisions were not a proximate cause of the plaintiff’s alleged injuries … . Rivas-Pichardo v 292 Fifth Ave. Holdings, LLC, 2021 NY Slip Op 05600, Second Dept 10-13-21

 

PLAINTIFF’S LADDER SHIFTED AS HE USED IT TO THROW TRASH INTO A DUMPSTER; THE ALLEGATION HE WAS TOLD NOT TO USE THAT DUMPSTER DID NOT RAISE A SOLE-PROXIMATE-CAUSE OR RECALCITRANT-EMPLOYEE DEFENSE (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 ladder-fall case. Plaintiff was using a closed A-frame ladder propped up against a dumpster as threw debris into it when the ladder shifted and he fell. The defendants’ argument that plaintiff was told not to use that dumpster did not raise a sole-proximate-cause or a recalcitrant-employee defense:

“[I]f a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it” … . A worker’s injury in an area of the work site where the worker was not supposed to be amounts to comparative negligence, which is not a defense to a Labor Law § 240(1) claim … .

To the extent that defendants argue that plaintiff was recalcitrant in ignoring defendants’ alleged instructions not to use the dumpster, this is insufficient to raise an issue of fact. The recalcitrant worker defense “requires a showing that the injured worker refused to use the safety devises that were provided by the owner or employer. It has no application where, as here, no adequate safety devices were provided” … . An employer’s instructions “to avoid an unsafe practice is not a sufficient substitute for providing a worker with a safety device to allow him to complete his work safely” … . Plaku v 1622 Van Buren LLC, 2021 NY Slip Op 05311, First Dept 10-5-21​

 

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SUPREME COURT PROPERLY ALLOWED THE AMENDMENT OF THE BILL OF PARTICULARS AFTER THE NOTE OF ISSUE HAD BEEN FILED; THE AMENDMENT ALLEGED ADDITIONAL VIOLATIONS OF THE INDUSTRIAL CODE IN THIS LABOR LAW 241(6) ACTION (SECOND DEPT).

The Second Department determined Supreme Court properly allowed the amendment of the bill of particulars after the note of issue had been filed in this Labor Law 241(6) action. The amendment alleged additional violations of the Industrial Code:

“[L]eave to amend the pleadings to identify a specific, applicable Industrial Code provision may properly be granted, even after the note of issue has been filed, where the plaintiff makes a showing of merit, and the amendment involves no new factual allegations, raises no new theories of liability, and causes no prejudice to the defendant”… . Here, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff’s cross motion which was to amend the bill of particulars to allege violations of additional Industrial Code sections. The plaintiff’s amendment did not prejudice the defendants and did not involve new factual allegations or raise new theories of liability … . Palaguachi v Idlewild 228th St., LLC, 2021 NY Slip Op 05127, Second Dept 9-29-21

 

THE SCAFFOLD ON WHICH PLAINTIFF WAS STANDING FELL OVER WHEN HE ATTEMPTED TO MOVE IT WHILE STANDING ON IT; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION (SECOND DEPT).

The Second Department determined plaintiff was entitled to summary judgment in this Labor Law 240(1) and 241(6) action. The scaffold fell over when plaintiff attempted to move it while standing on it. There was evidence one of the wheels, which was attached with wire, became detached:

… [T]he plaintiff demonstrated that he was directed to work on a Baker scaffold in order to perform his task of installing tracks on the ceiling, that the scaffold he was using was the only scaffold available to him, that as he was working without assistance, he tried to move the scaffold while he was standing on it, and that after the scaffold toppled over he observed that one of its wheels was detached. The plaintiff also submitted the affidavit of his foreman … who averred … that there were no nuts and bolts securing the wheels to the scaffold, and that the wheels were kept in place with the use of wire. Shortly after the accident, [the foreman] also observed that one of the wheels of the scaffold had become detached from its frame.

… [The] defendants failed to present a plausible view of the evidence—enough to raise a fact question—that there was no statutory violation and that the plaintiff’s own acts or omissions were the sole cause of the accident … . Masmalaj v New York City Economic Dev. Corp., 2021 NY Slip Op 05119, Second Dept 9-29-21

 

THE FACT THAT THE LADDER SLID OR SHIFTED AND FELL WARRANTED SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION; PLAINTIFF DID NOT NEED TO DEMONSTRATE THE LADDER WAS DEFECTIVE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action in this ladder-fall case. Plaintiff alleged the ladder slid or shifted and then fell. In that circumstance plaintiff does not have to demonstrate the ladder was defective and any comparative negligence on plaintiff’s part should not be considered:

Defendants argue that the statutory requirement was not met because plaintiff testified that there was no defect in the extension ladder and that it felt secure. Although defendants have produced evidence that the ladder may not have been defective, the adequacy of the ladder is not a question of fact when it “slips or otherwise fails to perform its function of supporting the worker” … . …

Although defendants cite to numerous actions on the part of plaintiff in support of this contention, including that plaintiff did not (1) use an alternative safety device or scaffold to install the guidewires, (2) have supervision or ask for assistance when using the ladder or (3) clear the snow upon which the feet of the ladder were placed, these arguments merely raise a question as to plaintiff’s comparative negligence, which will not relieve defendants from liability … . Begeal v Jackson, 2021 NY Slip Op 05000, Third Dept 9-16-21

 

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THE LABOR-LAW CONSTRUCTION-ACCIDENT ACTION WAS PRECLUDED BY THE RESULT OF THE PRIOR WORKERS’ COMPENSATION HEARING UNDER THE DOCTRINE OF COLLATERAL ESTOPPEL; THE MOTION TO AMEND THE ANSWER TO ADD THE COLLATERAL ESTOPPEL DEFENSE WAS PROPERLY GRANTED, EVEN THOUGH THE MOTION WAS MADE AFTER THE NOTE OF ISSUE WAS FILED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, determined the Labor Law 240(1), 241(6) and 200 action was precluded by the doctrine of collateral estoppel based upon the result of a Workers’ Compensation hearing. Plaintiff alleged a hoist at a construction site malfunctioned causing knee injuries. Plaintiff was represented by an attorney at the Workers’ Compensation hearing and witnesses were cross-examined. The Administrative Law Judge (ALJ) concluded that the incident (hoist malfunction) never occurred. In addition, the Second Department held that the motion to amend the answer to add the collateral estoppel defense, made after the note of issue was filed, was properly granted. Plaintiff could not have been surprised by the defense and suffered no prejudice from the late amendment:

Determinations rendered by quasi-judicial administrative agencies may qualify for collateral estoppel effect  so long as the requirements of the doctrine [identity of issues and a full and fair opportunity to contest the controlling decision] are satisfied. Determinations of the Workers’ Compensation Board are potentially within the scope of the doctrine … . * * *

… [T]he defendants met their burden of establishing, prima facie, their entitlement to judgment as a matter of law on the ground that the plaintiff’s action was barred by the doctrine of collateral estoppel. The ALJ’s findings, as affirmed by the Workers’ Compensation Board, established as a matter of fact that the accident claimed by the plaintiff did not occur, or did not occur in the described manner as would cause injury. That finding is material and, in fact, pivotal, to the core viability of any personal injury action that the plaintiff could pursue in a court at law regarding the same incident … . Lennon v 56th & Park(NY) Owner, LLC, 2021 NY Slip Op 04972, Second Dept 9-15-21

 

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QUESTION OF FACT WHETHER A CONTRACTOR WAS LIABLE TO A SUBCONTRACTOR FOR LAUNCHING AN INSTRUMENT OF HARM; THE SUBCONTRACTOR WAS INJURED ATTEMPTING TO FIX THE PROBLEM ALLEGEDLY CREATED BY THE CONTRACTOR (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined there was a question of fact whether a contractor, Home Crafts, launched an instrument of harm such that the contractor was liable to a subcontractor, Catalano, who fell from a ladder when attempting to fix the problem. Home Craft had ordered that sheet metal be placed over a chimney during the installation of gas fireplace inserts. The sheet metal caused smoke to back up when the fireplace was tested. Catalano fell when taking the sheet metal off the chimney:

… “[A] contractor may be said to have assumed a duty of care and, thus, be potentially liable in tort, to third persons when the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm” … .

Here, Home Crafts failed to establish, prima facie, that it did not launch a force or instrument of harm by directing Catalano to seal the chimney, without alerting the other contractors that the fireplace at issue was rendered inoperable due to the inability to ventilate smoke … . Santibanez v North Shore Land Alliance, Inc., 2021 NY Slip Op 04921, Second Dept 9-1-21

 

A SUBCONTRACTOR CAN BE LIABLE FOR A DANGEROUS CONDITION ON THE WORK SITE ONLY IF IT EXERCISED SUPERVISORY CONTROL OVER THE WORK SITE; THE LABOR LAW 200 CAUSE OF ACTION AGAINST THE SUBCONTRACTOR SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant subcontractor’s (D’Onofrio’s) motion for summary judgment dismissing the Labor Law 200 cause of action should have been granted. D’Onofrio demonstrated it did not have supervisory control over the work site where plaintiff allegedly fell from defective stairs:

Labor Law § 200 is a codification of the common-law duty of owners, contractors, and their agents to provide workers with a safe place to work … . “Where, as here, the plaintiff contends that his or her injuries arose not from the manner in which the work was performed, but rather from an allegedly dangerous condition at the work site, liability under Labor Law § 200 and common-law negligence may be imposed upon a subcontractor where it had control over the work site and either created the allegedly dangerous condition or had actual or constructive notice of it” … .

… D’Onofrio established its prima facie entitlement to judgment as a matter of law dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence insofar as asserted against it by establishing that it did not have authority to supervise or control the area of the work site where the accident occurred, and that it did not create a dangerous condition which caused the accident … . Uhl v D’Onofrio Gen. Contrs., Corp., 2021 NY Slip Op 04778, Second Dept 8-25-21

 

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THE RELEASE WAS VALID EVEN THOUGH PLAINTIFF DID NOT UNDERSTAND ENGLISH; CPLR 2101, WHICH REQUIRES DOCUMENTS IN A FOREIGN LANGUAGE WHICH ARE FILED OR SERVED BE ACCOMPANIED BY AN ENGLISH TRANSLATION, DOES NOT APPLY BECAUSE THE RELEASE WAS IN ENGLISH (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the release executed by plaintiff with respect to defendant M & I was valid, despite the fact that plaintiff did not understand English:

A person who does not understand the English language is not automatically excused from complying with the terms of a signed agreement, since such person must make a reasonable effort to have the agreement made clear to him or her … . Here, the deposition testimony of the injured plaintiff … demonstrates that the terms of the release were explained to the injured plaintiff before he executed the document … . Furthermore, contrary to the plaintiffs’ contention, the Supreme Court erred in determining that CPLR 2101(b) precluded consideration of the release. That statute provides that papers to be “served or filed shall be in the English language” and “[w]here an affidavit or exhibit annexed to a paper served or filed is in a foreign language, it shall be accompanied by an English translation and an affidavit by the translator stating his qualifications and that the translation is accurate” (CPLR 2101[b]). Here, the release was written in English. Ivasyuk v Raglan, 2021 NY Slip Op 04706, Second Dept 8-18-21

 

THE INSTALLATION OF LARGE INDVIDUAL LETTERS FOR A SIGN ON THE FRONT SOFFIT OF A BUILDING CONSTITUTED “ALTERING” THE BUILDING TO WHICH LABOR LAW 240(1) AND 241(6) APPLY; BECAUSE THE DEFENDANT DID NOT DEMONSTRATE IT DID NOT HAVE ACTUAL NOTICE OF THE DANGEROUS CONDITION OF THE SOFFIT (WHICH COLLAPSED), THE LABOR LAW 200 CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Labor Law 240 (1), 241 (6) and 200 causes of action should not have been dismissed. Plaintiff was hired to install a sign made up of large individual letters on the front soffit of a business. Plaintiff used a ladder to climb inside the soffit through an access door to attach washers and nuts to bolts holding the letter which were passed through drilled holes by a co-worker. The floor of the soffit gave way and plaintiff fell 15 feet to the concrete below. Installing the sign constituted “altering” the building such that Labor Law 240 (1) and  241(6) applied. Also the Labor Law 200 cause of action should have survived because defendant did not demonstrate it lacked actual notice of the condition of the soffit:

… “[A]ltering,” within the meaning of Labor Law § 240(1) [and 241 (6)] , involves “making a significant physical change to the configuration or composition of the building or structure” … . Here, the evidence … failed to establish … that the injured plaintiff was not engaged in “altering” the building at the time of the accident … . …

… “[W]here a plaintiff’s injuries stem … from a dangerous condition on the premises, a landowner may be liable under Labor Law § 200 if it ‘either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition'” … . …

… [Defendant] failed to establish … that it lacked actual notice of the allegedly defective condition in the soffit … . Alberici v Gold Medal Gymnastics, 2021 NY Slip Op 04651, Second Dept 8-11-21

 

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