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LABOR LAW 240 (1) AND 200 CAUSES OF ACTION MAY BE PLED IN THE ALTERNATIVE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the Labor Law 200 cause of action should not have been dismissed on the ground that it duplicated the Labor Law 240 (1) cause of action. Those causes of action may be pled in the alternative:

… [T]he Supreme Court erred in granting those branches of the School District’s motion which were for summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action asserted against it on the ground that those causes of action were duplicative of the Labor Law § 240(1) cause of action, as the plaintiffs may assert alternative Labor Law causes of action … . Cain v Ameresco, Inc., 2021 NY Slip Op 03572, Second Dept 6-9-21

 

PLAINTIFF WAS INJURED ATTEMPTING TO HOLD BACK A HAND TRUCK WITH A 500 POUND LOAD AS HE WAS DESCENDING STAIRS; IT WAS POSSIBLE TO LOWER THE LOAD USING RIGGING IN AN ELEVATOR SHAFTWAY BUT PLAINTIFF WAS DIRECTED TO USE THE STAIRS; PLAINTIFF WAS PROPERLY AWARDED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT).

The First Department determined plaintiff was properly awarded summary judgment on his Labor Law 240 (1) cause of action. Plaintiff was injured trying to keep a hand truck from descending stairs too fast with a 500 pound load. The load could have been lowered with rigging equipment in an elevator shaftway but was directed to use the stairs:

Plaintiff was not provided with any hoisting equipment to use on the staircase and defendants had previously refused Dunwell’s [plaintiff’s employer’s] requests to bring equipment through the building’s lobby and down the shaftway of the lobby elevator, which was already outfitted with rigging equipment. Instead, defendants instructed Dunwell to bring their materials through the courtyard behind the building and down an exterior staircase to the basement. Plaintiff testified that he was holding the hand truck by the handles at the top, while his coworkers held it from the bottom to control its descent, and as the hand truck was going down the first step, one of the coworkers, a helper, “kind of let off the pressure” on his side of the hand truck, causing the hand truck to go down the first step “very fast,” which “jerked” plaintiff and caused him to slip on some dirt, gravel, or debris on the step. Plaintiff testified further that at that point he attempted to hold back the weight of the steel bedplate and stop the load’s descent. Plaintiff “yelled out a little bit” and the three workers rested for approximately 30 seconds, before continuing the descent down the stairs. All three workers rested at the bottom of the stairs before moving the bedplate into the building. During this break, plaintiff told his coworkers “I pulled my shoulder out and my back is killing me.” Agli v 21 E. 90 Apts. Corp., 2021 NY Slip Op 03540, First Dept 6-8-21

 

PLAINTIFF INJURED HIS BACK WHEN HE LIFTED A HEAVY PIECE OF LUMBER TO ALLOW THE BLADES OF A FORKLIFT TO MOVE UNDER THE LUMBER; THERE WERE QUESTIONS OF FACT WHETHER LABOR LAW 240 (1) WAS APPLICABLE (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 not have been granted (but did not explain why). Plaintiff injured his back when he lifted a heavy object to allow the blades of a forklift to be moved under it:

There are issues of fact as to “whether plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” … .

It appears that plaintiff was placed in a position that required him to lift an extremely heavy piece of lumber without any safety devices such as those listed in Labor Law § 240(1) in order to get the assistance of a forklift. We note, in this regard, that any action on plaintiff’s part in lifting the beam goes to the issue of comparative negligence, which is not a defense to a Labor Law § 240(1) claim, because the statute imposes absolute liability once a violation is shown … . Moreover, plaintiff was under no duty to demand an alternate safety device on his own because “[t]o place that burden on employees would effectively eviscerate the protections that the legislature put in place” … . “Indeed, workers would be placed in a nearly impossible position if they were required to demand adequate safety devices from their employers or the owners of buildings on which they work” … . Greene v Raynors Lane Prop. LLC, 2021 NY Slip Op 03114, First Dept 5-13-21

 

THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF WAS ENGAGED IN REPAIR AS OPPOSED TO ROUTINE MAINTENANCE OF THE AIR CONDITIONER WHEN HE WAS INJURED; THEREFORE DEFENDANT’S MOTION TO DIMSISS THE LABOR LAW 240(1) CAUSE OF ACTION WAS PROPERLY DENIED; HOWEVER THE LABOR LAW 241(6) CAUSE OF ACTION SHOULD HAVE BEEN DISMIISED BECAUSE PLAINTIFF WAS NOT INVOLVED IN CONSTRUCTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court determined defendant’s (Chase’s) motion for summary judgment on the Labor Law 240(1) cause of action was properly denied but Chase’s motion for summary judgment on the Labor Law 241(6) cause of action should have been granted. There was a question of fact whether plaintiff was engaged in routine maintenance repair of the air conditioner. But plaintiff was not involved in construction of the building, so Labor Law 241 (6) did not apply:

Chase’s own evidentiary submissions, including the injured plaintiff’s deposition testimony, raised triable issues of fact as to whether the injured plaintiff was engaged in repairs or routine maintenance at the time the accident occurred. Although it is undisputed that an outside party was to perform the ultimate repair to the defective division plate, the injured plaintiff testified at his deposition that his supervisor instructed him to perform a temporary repair to the division plate in order to make the air conditioning unit function. Thus, there is a triable issue of fact as to whether the injured plaintiff’s activity constituted a repair of the unit within the scope of Labor Law § 240(1) … . …

“Although the applicability of Labor Law § 241(6) is not limited to building sites, the work in which the plaintiff was engaged must have affected the structural integrity of the building or structure or have been an integral part of the construction of a building or structure” … . Cantalupo v Arco Plumbing & Heating, Inc., 2021 NY Slip Op 02783, Second Dept 5-5-21

 

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QUESTION OF FACT WHETHER A LADDER WAS INTENDED FOR USE AS A STAGE PROP BY ACTORS AS OPPOSED TO AN OSHA COMPLIANT LADDER; EVEN WHERE A LABOR LAW 200 ACTION WILL NOT LIE, A COMMON-LAW NEGLIGENCE CAUSE OF ACTION MAY BE VIABLE; HERE IT WAS ALLEGED DEFENDANT LAUNCHED AN INSTRUMENT OF HARM BY ALTERING THE LADDER (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined that the Labor Law 200 cause of action against Center Line should have been dismissed but the common law negligence cause of action properly survived summary judgment. Although the decision doesn’t spell it out, it appears that defendant Center Line altered the ladder in question by gluing on an extra rung. Apparently the ladder was to be used by actors and Center Line argued it was a stage prop and was not intended for use an OSHA compliant ladder. The viable contract-based “Espinal” negligence theory was based upon launching an instrument of harm (altering the ladder):

Even assuming that Center Line is a proper Labor Law § 200 defendant, it cannot be held liable under the statute. This case is a means and methods of work case, and there is no proof that Center Line had authority to supervise and control plaintiff’s work … .

A claim for common-law negligence may lie even though there is no Labor Law § 200 liability … . A triable issue of fact exists as to whether Center Line negligently created or exacerbated a dangerous condition so as to have “launche[d] a force or instrument of harm” … . Although Center Line augmented the ladder as directed by Production Core, a triable issue of fact exists as to whether Center Line could have reasonably anticipated that the gluing of the rung to the top of the ladder would pose a hazard and likely to cause injury … . While plaintiff and the codefendants claim that Center Line dangerously altered the ladder despite knowing that the ladder was structural and climbable, Center Line claims that the ladder was a prop ladder that was not meant to be OSHA compliant, and that it augmented the ladder in reliance on Production Core’s assurances that the top portion of the ladder would not be ascended by the actors. Such raises an issue of fact for the jury to decide. Mullins v Center Line Studios, Inc., 2021 NY Slip Op 02756, First Dept 5-4-21

 

PLAINTIFF WAS STRUCK BY A PIECE OF SHEETROCK, THE LADDER HE WAS STANDING ON SHOOK, AND PLAINTIFF FELL TO THE GROUND; THERE WAS NO NEED TO PROVE THE LADDER WAS DEFECTIVE; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (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, Plaintiff stood on an A-frame ladder while attempting to put up a piece of sheetrock on the ceiling. His arm which was holding up the sheetrock became tired, the sheetrock fell striking plaintiff’s head and then the ladder shook and moved and he fell to the ground. There was no need to prove the ladder was defective:

The undisputed facts establish that defendants violated Labor Law § 240(1) by failing to properly secure the ladder against movement or slippage and to ensure that it remained steady and erect … . Defendants failed to guard against plaintiff’s risk of falling from a ladder while using one hand over his head to hold the sheetrock in place and the other hand over his head to operate a drill … .

Because we find that the ladder did not provide adequate protection, it is irrelevant that it appeared “very sturdy” to plaintiff. A plaintiff is not required to demonstrate that a ladder is defective in order to establish prima facie entitlement to summary judgment under Labor Law § 240 (1) … . Ping Lin v 100 Wall St. Prop. L.L.C., 2021 NY Slip Op 02605, First Dept 4-29-21

 

PLAINTIFF WAS STRUCK BY AN AIR CONDITIONER WHEN TWO OF THE FOUR RODS ATTACHING THE AIR CONDITIONER TO THE CEILING DETACHED AND ONE END OF THE UNIT FELL; QUESTION OF FACT WHETHER THE AIR CONDITIONER WAS A FALLING OBJECT WHICH SHOULD HAVE BEEN SECURED WITHIN THE MEANING OF LABOR LAW 240 (1) (FIRST DEPT).

The First Department, reversing Supreme Court, determined there was a question of fact whether an air conditioner installed by plaintiff’s employer was a falling object which should have been secured in this Labor Law 240 (1) action. the air condition was attached to the concrete ceiling by four rods. Two of the rods came out of the ceiling causing one end of the unit to drop, striking plaintiff:

Plaintiff testified that he was standing on the fourth rung of an A-frame ladder, which he had set up on a solid and clean part of the floor and had been using without incident, directly under an air-conditioning unit, while attempting to follow his foreman’s instructions by connecting a “canvas” device to air-conditioning duct work, when the air-conditioning unit fell onto his head, causing him to fall off the ladder onto the floor. The air-conditioning unit had recently been installed by plaintiff’s employer as part of its work on the project and was not part of the pre-existing building structure as it appeared before the project began. The air-conditioning unit was mounted a few inches below the approximately 12-foot ceiling by four rods. Plaintiff testified that two of those rods detached from the concrete ceiling, causing one end of the unit to drop, while the other end of the unit remained attached to the ceiling by two bent rods.

There is an issue of fact as to whether the air-conditioning unit constituted a falling object that was required to be secured for the purposes of the undertaking … . Erby v 36 LLC, 2021 NY Slip Op 02065, First Dept 4-1-21

 

THE APPLICABLE INDUSTRIAL CODE PROVISION APPLIES TO MORE THAN JUST THE OBSTRUCTION OF PASSAGEWAYS; IT ALSO APPLIES TO BUILDING MATERIAL WHICH IS NOT PROPERLY STORED AND SECURED (AND FALLS); PLAINTIFF’S LABOR LAW 241 (6) CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s Labor Law 241 (6) cause of action should not have been dismissed in this falling object case. Plaintiff was struck by a component of an unbuilt mail box which fell:

Plaintiff’s Labor Law § 241 (6) claim is predicated on 12 NYCRR 23-2.1 (a) (1), which provides in relevant part that “[a]ll building materials shall be stored in a safe and orderly manner. Material piles shall be stable under all conditions and so located that they do not obstruct any passageway, walkway, stairway or other thoroughfare” … . Contrary to defendants’ assertion, the scope of 12 NYCRR 23-2.1 (a) (1) is not limited exclusively to obstructed thoroughfares … . Rather, the plain text of the regulation creates three distinct obligations and potential sources of liability: first, “[a]ll building materials shall be stored in a safe and orderly manner”; second, “[m]aterial piles shall be stable under all conditions”; and third, “[m]aterial piles shall be . . . so located that they do not obstruct any passageway, walkway, stairway or other thoroughfare” … . …

… [W]e agree with plaintiff that the mailbox component at issue qualifies as a “building material[]” within the meaning of 12 NYCRR 23-2.1 (a) (1), and we further agree with plaintiff that triable issues of fact exist regarding the “safe[ty] and orderl[iness]” of the “manner” in which defendants “stored” that “building material[].” Slowe v Lecesse Constr. Servs., LLC, 2021 NY Slip Op 01887, Fourth Dept 3-26-21

 

PLAINTIFF, WHO WAS STRUCK BY A FALLING REBAR, WAS NOT REQUIRED TO DEMONSTRATE THE EXACT CIRCUMSTANCES WHICH LED TO THE REBAR FALLING; IT IS ENOUGH THAT THE REBAR SHOULD HAVE BEEN SECURED SUCH THAT IT WOULD NOT FALL; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action in this falling object case should have been granted. Plaintiff was struck by a falling rebar:

Plaintiff, a journeyman ironworker at the Hudson Yards project, was injured when a piece of rebar fell from 30 feet above, striking him. In moving for summary judgment on his Labor Law § 240(1) claim, plaintiff was not required to show the exact circumstances of how the rebar came to strike him, as his testimony, that a coworker was working with rebar 30 feet above him on the same column immediately before the accident, was sufficient evidence that the rebar, whether it was dropped or fell in some other manner, was material requiring securing … . In that plaintiff made a prima facie showing of entitlement to summary judgment on his testimony alone, the admissibility of his coworker’s unsigned deposition transcript is a moot point. Defendants failed to adduce any evidence raising a question of fact to warrant denial of plaintiff’s motion. Pados v City of New York, 2021 NY Slip Op 01855, First Dept 3-25-21

 

PLAINTIFF, AN HVAC WORKER, LEANED ON A PIPE RAILING AS HE WAITED FOR AN ELEVATOR TO TAKE HIM TO THE FLOOR WHERE HIS WORK SITE WAS; THE PIPE RAILING GAVE WAY AND PLAINTFF FELL FOUR OR FIVE FEET TO A CONCRETE SLAB; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff was at the construction site waiting for an elevator to take him to the floor where he was working (HVAC work) when he leaned back on a pipe railing which gave way and he fell four or five feet to a concrete slab:

… [T]he safety devices prescribed by Labor Law § 240(1) “are for the use or protection of persons in gaining access to or working at sites where elevation poses a risk” … .

… [T]he plaintiff established that he needed to use the elevator, one of two at opposite ends of the construction site, to gain access to the various floors where he would be working throughout the day. Thus, accessing and waiting at the loading dock for the elevator, even before working hours began, was necessary to the plaintiff’s work. We therefore conclude that the loading dock from which the plaintiff fell is included under “those parts, which must be accessed by a worker to do his or her job” … . Under the circumstances of this case, the fact that the plaintiff was not engaged in HVAC work at the moment of his accident does not preclude the application of Labor Law § 240(1). Crutch v 421 Kent Dev., LLC, 2021 NY Slip Op 01751, Second Dept 3-24-21

 

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