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THE ACKNOWLEDGED VIOLATION OF THE INDUSTRIAL CODE WAS MERELY “SOME EVIDENCE OF NEGLIGENCE” TO BE CONSIDERED BY THE FACTFINDER AND WAS NOT SUFFICIENT TO WARRANT SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF ON THE LABOR LAW 241 (6) CAUSE OF ACTION (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court determined plaintiff was not entitled to summary judgment on the Labor Law 241 (6) cause of action, despite the acknowledged violation of an Industrial Code provision, 12 NYCRR 23-1.7 (d). Plaintiff alleged he slipped and fall on metal decking on which there was some snow. 12 NYCRR 23-1.7 (d) requires that snow be removed from places where worker walk. The Fourth Department noted that the violation of the regulation, as opposed to a statute, is merely “some evidence of negligence” to be considered by the jury:

… [P]laintiff’s claim that defendants are liable under Labor Law § 241 (6) is based on the alleged violation of 12 NYCRR 23-1.7 (d), which, in pertinent part, directs that workers not be permitted to use “a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition” and requires that substances such as snow and ice be “removed . . . or covered to provide safe footing.” It is undisputed that “12 NYCRR 23-1.7 (d) mandates a distinct standard of conduct, rather than a general reiteration of common-law principles, and [thus] is precisely the type of ‘concrete specification’ ” upon which liability under section 241 (6) may be premised … . Moreover, defendants do not challenge plaintiff’s showing that the subject regulation was violated. As defendants correctly contend, however, the violation of 12 NYCRR 23-1.7 (d) is not conclusive with respect to defendants’ liability and, instead, merely constitutes “some evidence of negligence and thereby reserve[s], for resolution by a [factfinder], the issue of whether the equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances” … . In particular, we conclude that plaintiff’s own submissions, including the deposition of [defendant] Burke’s owner who testified—in contrast to plaintiff’s testimony—regarding his efforts to clear snow from the metal decking upon arriving at the work site prior to any workers, “raised factual issues with respect to the reasonableness of the safety measures undertaken at the work site” … . Chrisman v Syracuse Soma Project, LLC, 2021 NY Slip Op 01663, Fourth Dept 3-19-21

 

PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION; DEFENDANTS WERE ENTITLED TO SUMMARY JUDMENT ON THE LABOR LAW 200 CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s motions for summary judgment on his Labor Law 240(1) and 241(6) causes o action should have been granted. In addition defendants’ motion for summary judgment on the Labor Law 200 cause of action should have been granted, Plaintiff was standing on a scaffold with no railing when a piece of concrete fell from the ceiling and knocked him off the scaffold:

… [T]he plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the issue of liability on the Labor Law § 240(1) cause of action, through his deposition testimony that the scaffold he was using lacked any safety railings and that he tried to grab onto something as he fell from the scaffold but “there was nothing to grab” … . …

Similarly, the plaintiff met his prima facie burden with respect to so much of the Labor Law § 241(6) cause of action as was predicated upon 12 NYCRR 23-5.3(e), by establishing that the scaffold lacked safety railings in violation of that regulation and that such violation was a proximate cause of his injuries … . * * *

[Re; the Labor Law 200 cause of action:] … [T]he defendants … demonstrated … that they did not have the authority to supervise or control the plaintiff’s work … . The defendants … further demonstrated … that they did not create or have actual or constructive notice of any alleged defect in the concrete ceiling. Since the concrete ceiling had been covered by a drop ceiling until the drop ceiling was demolished … , any alleged defect in the concrete ceiling was latent and not discoverable upon a reasonable inspection … . Leon-Rodriguez v Roman Catholic Church of Sts. Cyril & Methodius, 2021 NY Slip Op 08228, Second Dept 3-17-21

 

THE REACH OF LIABILITY UNDER LABOR LAW 241 (6) AND THE MEANING OF “OWNER” AS USED IN THAT STATUTE EXPLAINED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant 2 Big Meadows’ motion for summary judgment on the Labor Law 241 (6) cause of action should not have been granted. The court explained the reach of liability under Labor Law 241 (6) and the meaning of the term “owner” as used in the statute:

Liability under Labor Law § 241(6) extends to “[a]ll contractors and owners and their agents . . . when constructing or demolishing buildings or doing any excavating in connection therewith.” “[T]he burden placed upon a defendant seeking summary judgment on the ground that it is not an owner is a heavy one” … . * * *

… “[T]he term ‘owner’ is not limited to the titleholder of the property where the accident occurred and encompasses a person ‘who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his [or her] benefit'” … . “[T]he critical factor in determining whether a party is an ‘owner’ is whether it ‘possessed the right to insist that proper safety practices were followed; that is, the right to control the work'” … . The evidentiary submissions furnished by 2 Big Meadow in support of its motion for summary judgment did not eliminate triable issues of fact as to whether 2 Big Meadow, which clearly benefitted from the renovation of its property, was involved in contracting to have the construction project performed or had the authority to insist on proper safety practices. Cruz v 1142 Bedford Ave., LLC, 2021 NY Slip Op 08220, Second Dept 3-17-21

 

PLAINTIFF HAD TO USE AN A-FRAME LADDER ON TOP OF A SCAFFOLD TO REACH THE WORK AREA; THE SCAFFOLD MOVED AND PLAINTIFF FELL TO THE GROUND; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION AND 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 plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action and one of the Labor Law 241(6) causes of action properly survived summary judgment. Plaintiff was using a scaffold that wasn’t high enough. He therefore used an A-frame ladder in the closed position on top of the scaffold. The scaffold move, the ladder fell over and plaintiff fell to the ground:

… [D]efendants failed to raise a triable issue. Defendants’ contention that plaintiff’s actions were the sole proximate cause of the accident is unavailing, since he was not provided a proper safety device to prevent his fall, and that failure is a cause of his injuries … .

Additionally, contrary to defendants’ argument, there is no requirement for Labor Law § 240(1) purposes that plaintiff know exactly the cause of his accident, or what caused the scaffold or ladder to move, where there is no dispute that the safety devices failed … . Moreover, it is not relevant that the ladder and scaffold were free from defects … .

[Defendant] failed to establish prima facie entitlement to summary judgment dismissing plaintiff’s Labor Law § 241(6) claim predicated on alleged violations of Industrial Code §§ 23-1.21(b)(4)(ii) and (iv), as there is sufficient testimony in the record to support such violations, including that the ladder was unsecured and lacked rubber footing, and no one was holding it in place at the time of plaintiff’s fall. [Defendant] failed to establish as a matter of law that the alleged violations were not a proximate cause of plaintiff’s accident. Martinez v ST-DIL LLC, 2021 NY Slip Op 01513, First Dept 3-16-21

 

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THE COMPLAINT IN THIS LABOR LAW 200 ACTION ALLEGED INJURY CAUSED BY A DANGEROUS CONDITION AT THE WORK SITE; THE DEFENDANTS IGNORED THAT THEORY IN THEIR MOTION FOR A SUMMARY JUDGMENT AND FOCUSED ON AN INAPPLICABLE THEORY (THE MEANS AND MANNER OF WORK); THE MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s motion for summary judgment in this Labor Law 200 action should not have been granted. There are two distinct theories which will support a Labor Law 200 cause of action. If the injury stems from the means and manner of the work, the defendant must have supervisory authority over the way the work is done. If the injury stems from a dangerous condition, the defendant must have control over the work site and must have created or had notice of the dangerous condition. Here plaintiff alleged a door at the work site was not adequately secured and he was injured when wind blew the door shut. The door therefore was alleged to constitute a dangerous condition. In their motion papers, however, the defendants addressed only the means-and-manner-of-work theory:

… [T]he plaintiff’s complaint and verified bill of particulars sounded almost entirely in premises liability, and alleged, inter alia, that the door was not properly constructed, placed, or secured, and that it lacked adequate securing devices. To establish their prima facie entitlement to judgment as a matter of law, the defendants were obligated to address the proof applicable to the plaintiff’s dangerous condition theory of liability, or alternatively, to demonstrate, prima facie, that this case fell only within the ambit of the means and methods category of Labor Law § 200 cases … . On their motion, the defendants summarily concluded that the case exclusively implied a means and methods theory of liability, and contended that they only had general supervisory authority over the work site, which would be insufficient to impose liability for common-law negligence and under Labor Law § 200 in a means and methods case … . The defendants, however, failed to address premises liability and whether they either created the alleged dangerous condition or had actual or constructive notice of it … . Rodriguez v HY 38 Owner, LLC, 2021 NY Slip Op 01436, Second Dept 3-10-21

 

WHETHER PLAINTIFF USED ONE OR BOTH HANDS TO MANIPULATE A HOSE WHILE STANDING ON A LADDER WHICH COLLAPSED OR SLIPPED WAS RELEVANT ONLY TO COMPARATIVE NEGLIGENCE, WHICH IS NOT A BAR TO RECOVERY PURSUANT TO LABOR LAW 240 (1) (THIRD DEPT).

The Third Department, over a dissent, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff alleged he fell from an A-frame ladder which collapsed, slipped or otherwise failed to support him. Plaintiff was using a hose to insert insulation and was supposed to keep one hand on the ladder at all times. Defendant argued plaintiff demonstrated at his deposition that he had both hands on the hose. The majority held, even if plaintiff used both hands to manipulate the hose, that would constitute comparative negligence which is not a bar to recovery:

… [D]efendant relied upon plaintiff’s deposition testimony, in which he averred that he chose a wooden, A-frame ladder, which he described as “sturdy,” and placed so it was steady and free from “wiggling.” Plaintiff testified that, while standing on the steps of the ladder, he maintained a three-point safety stance, with his feet and one arm in contact with the ladder, and his other hand holding the hose that fed the insulation into the building’s overhang. Plaintiff indicated that the ladder began to move forward, causing him to fall and sustain injuries. Defendant argued that this testimony established that the ladder “was adequate and properly placed” … , and that the testimony about plaintiff keeping one hand in contact with the ladder contradicted gestures he made during the deposition, where he seemed to indicate that “both [of his] hands [were] cupped around an imaginary hose,” thus posing issues of fact.

As Supreme Court found, the deposition testimony is not clear as to whether plaintiff maintained the three-point safety stance while on the ladder. Nonetheless, even if this disputed issue was resolved against plaintiff, this would merely present a factual question as to his potential comparative negligence, which “does not relieve defendant[] of liability under Labor Law § 240 (1)” … . Bennett v Savage, 2021 NY Slip Op 01306, Third Dept 3-4-21

 

PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION; THE ROPE AND FRAME USED TO PREVENT A HEAVY OBJECT FROM FALLING WHEN PLAINTIFF DETACHED IT FROM THE WALL DID NOT WORK (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on his Labor law 240(1) cause of action. Plaintiff was struck by a 200 pound fire damper when it fell from the wall. A co-worker was holding a rope tied to the damper and looped over a temporary frame. When plaintiff broke the last weld securing the fire damper the co-worker who was holding the rope was unable to keep the damper from falling:

… [T]he statute is violated where an object, while being hoisted or secured, falls because of the absence or inadequacy of a safety device of the kind enumerated in the statute … , including where, as here, the inadequacy or absence of a safety device results in the uncontrolled descent of an object … . Here, plaintiff was entitled to summary judgment because the rope proved inadequate to prevent the damper from falling … .

The eight-foot fall of the 200-pound damper that plaintiff was tasked with removing was not an ordinary construction site peril but an elevation-related hazard, within the ambit of Labor Law § 240(1), which was required to be secured against unregulated descent to prevent it from falling on plaintiff … . Further, regulating its descent to prevent it from falling would not have been contrary to the purpose of work … . Mayorga v 75 Plaza LLC, 2021 NY Slip Op 01204, First Dept 2-25-21

 

THERE WAS A QUESTION OF FACT WHETHER THE LEVEL OF CONTROL EXERCISED BY THE DEFENDANT OVER THE CONSTRUCTION WAS SUCH THAT HE WAS NOT ENTITLED TO THE HOMEOWNER’S EXEMPTION IN THIS LABOR LAW 240(1) AND 241(6 ACTION; COMPLAINT REINSTATED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the defendant’s motion for summary judgment in this Labor Law 240 (1) and 241 (6) action should not have been granted. Plaintiff fell from an unsecured ladder used to get from the basement to the first floor of the building under construction. Supreme Court had ruled the statutory homeowner’s exemption insulated the defendant from liability:

… [P]laintiff testified that defendant supplied the ladders that were used by the contractors, and the nonparty contractor testified that defendant was on site giving direction nearly every day. The nonparty contractor had asked defendant several times prior to plaintiff’s accident for permission to build stairs from the basement to the first floor, insisting that it was necessary to allow for safer and easier access to the first floor. Although defendant was aware that workers had been entering the house through the basement and using a ladder to access the first floor, he refused permission to build the stairs until after plaintiff’s accident, at which time defendant immediately directed the nonparty contractor to build the stairs. Such participation goes “far beyond ‘[a] homeowner’s typical involvement in a construction project’ ” … .. Indeed, the nonparty contractor further testified that a real estate limited liability company of which defendant was a member had hired him to perform work on the construction of a six-story building, suggesting that defendant had a degree of “sophistication or business acumen” such that he was in a position to know about and insure himself against his exposure to absolute liability … . O’Mara v Ranalli, 2021 NY Slip Op 00982, Fourth Dept 2-11-21

 

PLAINTIFF, A BUILDING MAINTENANCE WORKER, FELL FROM AN 8-FOOT UNSECURED LADDER WHEN ATTEMPTING TO REMOVE A BIRD’S NEST FROM A GUTTER; THE ACTIVITY WAS NOT ROUTINE CLEANING AND PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over an extensive two-justice dissent, determined plaintiff, who maintained a mixed use building, was engaged in a “Labor Law 240 (1)” covered activity when he was attempting to remove a bird’s nest from a gutter. Plaintiff fell from an 8-foot unsecured ladder when he was surprised by a bird flying out of the nest:

… [P]laintiff’s work in removing the bird’s nest from one of the building’s gutters was not routine cleaning. Plaintiff had never before been given such a task during his time working on the premises. Indeed, the reason for removing the nest was, in part, to prevent the further accumulation of bird excrement under the nest. Plaintiff’s supervisor characterized the task of removing the nest as nonroutine cleaning. In addition, removing the bird’s nest from the gutter, which was located above the tenant’s entry door, necessarily involved elevation-related risks that are not generally associated with typical household cleaning … . Although plaintiff’s work did not necessitate the use of specialized equipment or expertise, nor was it performed in conjunction with any construction, renovation or repair project on the building … , those factors are not dispositive in light of the atypical nature of the work and its attendant elevation-related risks and, moreover, the fact that plaintiff’s task involved the removal of extraneous materials that had formed in the gutter not due to its normal operation … . Healy v Est Downtown, LLC, 2021 NY Slip Op 00699, Fourth Dept 2-5-21

 

PLAINTIFF APPARENTLY FELL FROM A WET, SLIPPERY WOODEN LADDER; HE WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE ACTION; NO NEED TO SHOW THE LADDER WAS INHERENTLY DEFECTIVE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) without showing the ladder from which he fell was inherently defective:

Plaintiff testified that he was injured when he fell while using a wet and slippery wooden ladder provided by defendants for him to move between the tenth and eleventh floors of the construction site to perform his work. This testimony established prima facie that plaintiff’s work exposed him to an elevation-related risk against which defendants failed to provide him with proper protection, as required by Labor Law § 240(1) … . It is clear that the ladder was not adequate to prevent plaintiff from falling and there is no dispute that other than the ladder, no additional safety devices were provided … . Plaintiff was not required to show that the ladder was inherently defective … . Millligan v Tutor Perini Corp., 2021 NY Slip Op 00630, First Dept 2-4-21

 

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