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PLAINTIFF FELL FROM A SCAFFOLD WHICH DID NOT HAVE GUARDRAILS AND WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION DESPITE DEFENDANTS’ ARGUMENTS THAT PLAINTIFF DID NOT LOCK THE WHEELS ON THE SCAFFOLD AND PLAINTIFF MAY HAVE FAINTED OR STEPPED BACKWARDS OFF THE SCAFFOLD (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 apparently fell from a scaffold which did not have guardrails. Defendants unsuccessfully argued plaintiff did not lock the wheels of the scaffold and therefore was the sole proximate cause of the accident:

… [D]efendants failed to raise an issue of fact as to whether plaintiff was the sole proximate cause of his accident. Given the scaffold’s inadequacy to protect him from falling, plaintiff’s alleged failure to lock the wheels of the scaffold could not be the sole proximate cause of his accident … . It would be at most comparative negligence, which is not a defense to a Labor Law § 240(1) claim … . Defendants’ argument, raised for the first time on appeal, that plaintiff was the sole proximate cause because he was not wearing a safety harness is also unavailing … , as is their suggestion that plaintiff may have fainted and/or stepped backwards off the scaffold … . Ordonez v One City Block, LLC, 2021 NY Slip Op 00529, First Dept 2-2-21

 

ALTHOUGH PLAINTIFF FELL FROM A LADDER, HIS LABOR LAW 240(1) CAUSE OF ACTION WAS PROPERLY DISMISSED; THERE WAS A VIDEO OF PLAINTIFF’S FALL WHICH SHOWED THE LADDER WAS SECURED TO THE SCAFFOLDING AND DID NOT MOVE (FIRST DEPT).

The First Department determined plaintiff’s Labor Law 240(1) cause of action was properly dismissed. Plaintiff fell from a ladder, but there was a video of the fall which showed the ladder did not move and was secured to the scaffolding:

Defendant was properly granted summary judgment dismissing the § 240(1) claim. Surveillance footage of plaintiff falling from the ladder demonstrates that it did not move or shake, refuting plaintiff’s testimony to the contrary … . In addition, photographs taken soon after his fall show that the top of the ladder was connected to the sidewalk bridge and scaffolding above, and tied to the scaffolding structure about one-third of the way up. Cordova v 653 Eleventh Ave. LLC., 2021 NY Slip Op 00490, First Dept 1-28-21

 

PLAINTIFF WAS USING A CLOSED A-FRAME LADDER WHEN IT SLIPPED OUT FROM UNDER HIM; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this Labor Law 240(1) action should have been granted. Plaintiff was using a closed A-frame ladder when it slipped out from under him:

A worker’s decision to use an A-frame ladder in the closed position is not a per se reason to declare him the sole proximate cause of an accident,” and plaintiff here “gave a specific reason why he used the ladder in the closed position” … . Defendants also did not elicit any evidence that it would have been plaintiff’s “‘normal and logical response'” to use the taller ladder that they allege was available to plaintiff at the time of his accident … . Similarly, as for plaintiff’s putative recalcitrance, defendants failed to establish that, among other things: plaintiff knew that the taller ladder was available for his use; he was expected to use the taller ladder for his work; he “‘chose for no good reason not to do so'” … ; and, he refused to follow a specific instruction to use the taller ladder for his work … . Ultimately, “[d]efendants’ contentions would amount to, at most, comparative negligence, which is not a defense to a Labor Law § 240(1) violation … . Morales v 2400 Ryer Ave. Realty, LLC, 2021 NY Slip Op 00498, First Dept 1-28-21

 

PLAINTIFF’S FALL FROM A LOW CONCRETE RETAINING WALL TO THE GROUND WAS NOT THE TYPE OF ELEVATION-RELATED INCIDENT COVERED BY LABOR LAW 240(1) (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court determined the Labor Law 240(1) cause of action should have been dismissed. Plaintiff alleged he stepped on a low concrete retaining wall and slipped on oil, which was not the type of elevation hazard covered by section 240(1):

… [T]he defendant established that it was entitled to judgment as a matter of law dismissing the cause of action alleging a violation of Labor Law § 240(1) on the ground that the plaintiff was not exposed to the type of elevation-related hazard contemplated by that statute. The evidence submitted by the defendant established that the height differential from the concrete retaining wall to the ground did not constitute a physically significant elevation differential covered by the statute … . Eliassian v G.F. Constr., Inc., 2021 NY Slip Op 00419, Second Dept 1-27-21

 

THE HOMEOWNER AND THE GENERAL CONTRACTOR DID NOT HAVE SUFFICIENT SUPERVISORY AUTHORITY TO BE LIABLE IN THIS LABOR LAW 200 AND COMMON-LAW NEGLIGENCE ACTION STEMMING FROM A SCAFFOLD COLLAPSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Labor Law 200 and negligence causes of action against the homeowners (the Chetrits) and the general contractor (J & S) should have been dismissed in this scaffold-collapse case. Neither defendant had sufficient supervisory authority to trigger liability. Plaintiff worked for a company hired by J & S, the general contractor:

“‘Section 200 of the Labor Law merely codified the common-law duty imposed upon an owner or general contractor to provide construction site work[ers] with a safe place to work'” … . “‘To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed, a defendant must have authority to exercise supervision and control over the work'” … . Here, both the Chetrits and J & S demonstrated their prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 200 and common-law negligence causes of action insofar as asserted against each of them, as the record demonstrates that neither the Chetrits nor J & S supervised, directed, or otherwise controlled the plaintiff’s work … . In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff’s contentions, the fact that Abraham Chetrit, David Chetrit, and J & S’s employees often visited the work site to inspect the work, make requests, and ask questions does not preclude summary judgment, as “‘[m]ere general supervisory authority at [the] work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability under Labor Law § 200′” … . Moreover, although J & S employees had the power to stop any unsafe work at the work site, this alone is insufficient to impose liability under Labor Law § 200 … . Debennedetto v Chetrit, 2021 NY Slip Op 00413, Second Dept 1-27-21

 

THERE IS A QUESTION OF FACT WHETHER PLAINTIFF’S WORK ON A BOILER WAS ROUTINE MAINTENANCE OR PART OF A LARGER COVERED ACTIVITY IN THIS LABOR LAW 240(1) AND 241(6) ACTION; DEFENDANTS DID NOT SUPERVISE OR CONTROL PLAINTIFF’S WORK REQUIRING DISMISSAL OF THE LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTIONS (FIRST DEPT).

The First Department, reversing Supreme Court, determined there was a question of fact whether plaintiff was engaged in a covered activity and not routine maintenance of a boiler. In addition, the First Department held that the defendant did not supervise of control the plaintiff’s work and therefore the Labor Law 200 and common law negligence causes of action should have been dismissed:

Labor Law §§ 240(1) and 241(6) do not cover workers engaged in routine maintenance … . The determination of whether a worker was engaged in a covered activity is not made at the moment of injury, but in the context of the entire project … . While plaintiff here was engaged in replacing a boiler steam valve, an activity some courts have deemed routine maintenance … , it was part of a larger project that included removing portions of the boilers via blowtorches and installation of new components by welding, thus raising an issue of fact whether it falls within covered activity … . …

Plaintiff’s accident arose from the means and methods of the work, not a defective condition … , and the record is clear that defendants neither supervised nor controlled the work being performed by plaintiff and his coworkers at the time of the accident. Thus, this Court, upon a search of the record, dismisses plaintiff’s Labor Law § 200 and common-law claims … . Gaston v Trustees of Columbia Univ. in the City of N.Y., 2021 NY Slip Op 00254, First Dept 1-19-21

 

THE ACCIDENT WAS NOT THE TYPE OF GRAVITY-RELATED INCIDENT COVERED BY LABOR LAW 240 (1); BUT THERE WAS A QUESTION OF FACT WHETHER THE GENERAL CONTRACTOR WAS LIABLE PURSUANT TO LABOR LAW 200 (FIRST DEPT).

The First Department, reversing Supreme Court, determined the Labor Law 240(1) cause of action was properly dismissed but the Labor Law 200 cause of action should not have been dismissed. Plaintiff was injured when a pipe rolled over his foot, not the type of gravity-related accident covered by Labor Law 240 (1). But the accident related to the means and methods of the work over which the defendant general contractor (Gilbane) may have exercised supervisory control:

Plaintiff was injured while employed by nonparty Titan Industrial Corporation (TIC) when a pipe rolled onto his foot. On the day of the accident, plaintiff’s foreman instructed plaintiff and his two coworkers to insert some pipes under a concrete planter to relocate it. Plaintiff and his coworkers were pushing and pulling the planter from the sides, while the foreman was pushing it with a bobcat, when one of the pipes rolled over plaintiff’s foot, causing an injury. …

The operation, according to plaintiff’s foreman, was normally performed with two Bobcats, one pushing and one pulling the load; in this case, however, the operation was performed with only one Bobcat because the others were in use elsewhere on the site. Gilbane required that onsite Bobcat operators be licensed and kept track of all such operating engineers; in the event an unlicensed person were found to be operating a Bobcat contrary to instructions, the subcontractor would be notified by Gilbane and instructed to shut down the equipment. It is undisputed that the foreman who was operating the Bobcat involved in plaintiff’s accident lacked the required license and, if [the onsite supervisor’s] testimony is to be credited, should have been prohibited from doing so by Gilbane. Lemache v MIP One Wall St. Acquisition, LLC, 2021 NY Slip Op 00019, First Dept 1-5-21

 

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THE DEFENDANT LIMITED LIABILITY COMPANIES FUNCTIONED AS A SINGLE INTEGRATED UNIT WITH PLAINTIFF’S EMPLOYER; PLAINTIFF’S ONLY REMEDY IN THIS SLIP AND FALL CASE IS THE WORKERS’ COMPENSATION LAW BENEFITS HE APPLIED FOR AND RECEIVED BEFORE BRINGING THIS LABOR LAW 240(1) ACTION (FIRST DEPT). ​

The First Department, reversing Supreme Court, over an extensive dissent, determined the corporate entities plaintiff sued in this slip and fall case function as a single integrated entity with plaintiff’s employer, the nursing home where he was injured. Plaintiff had applied for and received Workers’ Compensation benefits and then brought this Labor 240(1) action. The First Department held that plaintiff’s exclusive remedy was Workers’ Compensation:

… [W]e find that Hopkins Ventures has shown ownership of 100% of both KFG Land and KFG Operating and that it exercised complete managerial and financial control over both companies, operating them as if they were a single integrated entity. Since the evidentiary proof submitted by KFG Land was sufficient to make out its prima facie case, that the LLCs functioned as a single integrated entity in connection with the joint venture of acquiring and operating the property and nursing home, the exclusivity provisions of the WCL apply. Plaintiff failed to raise a material issue of fact to defeat defendant’s motion for summary judgment. …

Although the dissent reaches the underlying merits of plaintiff’s cross appeal concerning the dismissal of his Labor Law §240(1) on the basis that he was not engaged in a “repair” or “alteration” within the meaning of Labor Law § 240(1) at the time of his accident, we affirm on the ground that even if plaintiff was engaged in alteration or repair, the exclusivity provisions of the WCL would be his sole remedy since he applied for and received those benefits. Fuller v KFG L & I, LLC, 2020 NY Slip Op 07998, First Dept 12-29-20

 

PLAINTIFF SLIPPED ON ICE AND SNOW IN AN AREA OF THE WORK SITE USED AS A WALKWAY; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 241(6) ACTION SHOULD HAVE BEEN GRANTED; THERE WAS A DISSENT (FIRST DEPT).

The First Department, reversing Supreme Court, over a dissent, determined plaintiff was entitled to summary judgment on his Labor Law 241(6) cause of action. Plaintiff slipped and fell on ice and snow on a walkway used on the work site:

[12 NYCRR] Section 23-1.7(d) provides, in pertinent part, that no employee shall be permitted “to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition” and requires the removal of any “[i]ce, snow, water, grease and any other foreign substance which may cause slippery footing.” Here, plaintiff’s accident occurred while he was walking on a path in the fenced-in area between the security guard booth and the worksite entrance at Staircase B. The general superintendent … swore in his deposition that there was an unpaved path between the booth and the worksite entrance, that it was one of two entrances to the worksite, that it was a “walked path that workers generally took” and that it was “an area that should be kept clear of snow and ice and any other slippery conditions so that workers don’t injure themselves[.]” Potenzo v City of New York, 2020 NY Slip Op 08013, First Dept 12-29-30

 

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HEARSAY INSUFFICIENT TO DEFEAT PLAINTIFF’S SUMMARY JUDGMENT MOTION IN THIS LABOR LAW 240(1) AND 241(6) ACTION; THE INDEMNIFICATION AND CONTRIBUTION CLAIM WAS PROPERLY DISMISSED BECAUSE PLAINTIFF DID NOT SUFFER GRAVE INJURY WITHIN THE MEANING OF WORKERS’ COMPENSATION LAW 11 (FIRST DEPT).

The First Department determined hearsay was not sufficient to defeat plaintiff’s summary judgment in this Labor Law 240(1) and 241(6) case. In addition the indemnification and contribution claims were properly dismissed because plaintiff did not suffer a “grave injury” within the meaning of Workers’ Compensation Law 11:

Plaintiff commenced this action alleging, inter alia, violations of Labor Law §§ 240(1) and 241(6) seeking to recover for personal injuries he sustained when, while dismantling a scaffold in an elevator shaft of a building under renovation, he fell from the scaffold to the bottom of the shaft. … Plaintiff testified that his employer had instructed him to dismantle the scaffold and the sole support for Empire’s contention that dismantling the scaffold was outside the scope of his duties was inadmissible hearsay testimony. …

Pursuant to their contract, Empire agreed to indemnify Pen & Brush for damages, “arising from any act, omission, negligence, potential claims and losses” of, inter alia, Empire or its subcontractors “during the performance of the Contract.” Its indemnification obligation was triggered here where plaintiff’s injuries arose from the act of Empire’s subcontractor, Lough Allen, in dismantling the scaffold and a finding of negligence is not required … .

Supreme Court properly determined plaintiff had not sustained a grave injury and dismissed the common-law indemnification and contribution claims against Lough Allen … . As relevant here, “grave injury” within the meaning of Workers’ Compensation Law § 11 includes “an acquired injury to the brain caused by external physical force resulting in permanent total disability.” Permanent total disability in the context of Workers’ Compensation Law § 11 means unemployable in any capacity … . Clarke v Empire Gen. Contr. & Painting Corp., 2020 NY Slip Op 07698, First Dept 12-22-20

 

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