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QUESTIONS OF FACT ABOUT WHETHER PLAINTIFF’S INJURY WAS DUE TO DEFENDANTS’ FAILURE TO PROVIDE HIM WITH THE PROPER PROTECTIVE DEVICES PRECLUDED SUMMARY JUDGMENT IN THIS LABOR LAW 240(1) ACTION; THE DISSENT DISAGREED; A STACK OF CONCRETE BOARDS FELL OFF A TRUCK ONTO PLAINTIFF WHEN THE SKIDS UNDER THE BOARDS BROKE (FIRST DEPT).

The First Department, reversing Supreme Court, over a dissent, determined plaintiff was not entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff was injured when a stack of cement boards fell off a truck onto him after the skids under the concrete boards broke:

Plaintiff failed to demonstrate conclusively that the accident was proximately caused by [defendants’] failure to provide him with proper protective devices for the performance of his work. The load of cement boards atop the pallet jack did not fall because of an inadequacy or deficiency in the pallet jack but, rather, because the wooden skids underneath the load of cement boards broke, causing the load to fall from the pallet jack. Coupled with the dispute as to whether plaintiff was permitted to use the street level hoist for the delivery of cement boards, this evidence renders it impossible to determine as a matter of law that [defendants] failed to supply plaintiff with adequate safety devices for the performance of his work and that this failure was a proximate cause of plaintiff’s accident … . Valle v Port Auth. of N.Y. & N.J., 2020 NY Slip Op 07685, First Dept 12-17-20

 

PLAINTIFF ALLEGED HE WAS STANDING ON AN A-FRAME LADDER WHEN IT SHIFTED CAUSING A CONCRETE SLAB TO FALL ON HIS HAND; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED; IN ADDITION A DEFENDANT FAILED TO SHOW IT WAS NOT AN “OWNER” WITHIN THE MEANING OF LABOR LAW 240(1) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment on plaintiff’s Labor Law 240(1) cause of action should not have been granted. Plaintiff alleged the A-frame ladder he was standing when positioning a concrete slab shifted causing the slab to fall on his hand. In addition the Second Department determined defendant (Cappy’s) did not demonstrate it was not an “owner” within the meaning of Labor Law 240(1):

The defendants failed to show, prima facie, that this incident did not involve an injury caused by the failure to provide a safety device to protect against an elevation-related risk, within the meaning of the statute. In particular, the plaintiff’s work entailed attempting to move or lift a heavy slab of cement at ceiling or roof level, while standing on a ladder. The plaintiff testified that the ladder “moved” while he was reaching for the slab, causing the slab to fall or drop. The plaintiff alleges, inter alia, that a sling or other device should have been provided to secure the slab. Under these circumstances, the defendants failed to show, prima facie, that this incident did not result from the failure to provide such safety device to protect against an elevation-related risk, and the evidence also raised issues of fact as to that matter … .

Further, [defendant] Cappy’s failed to show, prima facie, that it cannot be deemed an “owner” within the meaning of Labor Law § 240(1). Under Labor Law §§ 240(1) and 241(6), “those parties with a property interest who hire the general contractor” are deemed “owners” … . “Lessees who hire a contractor and have the right to control the work being done are considered ‘owners’ within the meaning of the statutes” … . Gomez v 670 Merrick Rd. Realty Corp., 2020 NY Slip Op 07549, Second Dept 12-16-20

 

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PLAINTIFF WAS INJURED WHEN A WHEEL ON THE CONTAINER HE WAS PUSHING GOT STUCK IN A GAP IN THE FLOOR AFTER THE PLYWOOD COVERING THE GAP BROKE; PLAINTIFF’S MOTION TO AMEND THE COMPLAINT TO ADD THE RELEVANT INDUSTRIAL CODE PROVISION SHOULD HAVE BEEN GRANTED; THE LABOR LAW 241(6), LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s Labor Law 241(6), Labor Law 200 and Negligence causes of action should not have been dismissed. Plaintiff was pushing a container of cinderblocks when plywood covering a gap in the floor broke and a wheel got stuck, causing plaintiff to be propelled head over heels and land on his back. The Second Department further held plaintiff should have been allowed to amend the complaint by adding the relevant Industrial Code provision, despite the 3 1/2 delay in bringing the motion to amend. Defendant was not prejudiced by the amendment:

As Industrial Code (12 NYCRR) § 23-1.7(e)(1) is applicable to these facts and defendant failed to show that it would be prejudiced by an amendment of the bill of particulars to assert a violation of this provision as a predicate to the Labor Law § 241(6) claim, plaintiff’s motion to amend should be granted (see CPLR 3025[b] …). In view of the absence of prejudice to defendant, plaintiff was not required to explain his 3½-year delay in bringing this motion … . …

… [A]n inadequately protected gap in the floor of a passageway at a construction site that causes a container, dumpster, or the like to become stuck or otherwise lose its balance and trip, slip, or fall violates Industrial Code (12 NYCRR) § 23-1.7(e)(1) and can serve as a predicate for a Labor Law § 241(6) claim. …

Defendant failed to establish prima facie that it neither created nor had notice of the dangerous condition of the hallway floor … . Trinidad v Turner Constr. Co., 2020 NY Slip Op 07519, First Dept 12-15-20

 

THE HOMEOWNERS EXERCISED NO SUPERVISORY CONTROL OVER THE INJURY-CAUSING WORK IN THIS LABOR LAW 200 AND NEGLIGENCE CASE; THE CASE SHOULD HAVE BEEN ANALYZED AS A “MEANS AND METHODS OF WORK” ACTION, NOT A “CREATE OR HAVE NOTICE OF A DANGEROUS CONDITION” ACTION; THE HOMEOWNERS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the Labor Law 200 and negligence causes of action against the homeowners should have been dismissed because the homeowners did not exercise any supervisory control over plaintiff’s work. The hole into which plaintiff fell was dug as part of the construction project. Supreme Court should not have analyzed the case using a “create or have notice of a dangerous condition” theory:

Plaintiff was injured when he fell into a hole dug by employees of codefendant Apex Construction/Masonry Corp. (Apex) in the backyard of Homeowner Defendants’ home during renovation of the premises. The hole was created for the purpose of building the foundation for a deck. Homeowner Defendants hired nonparty IA Construction Management Inc. as the general contractor, which subcontracted out part of the work to Apex; plaintiff was an employee of IA Construction.

Here, plaintiff’s accident arose from the means and methods of Apex’s work, not a defective premises condition. Thus, the dispositive issue is whether the Homeowner Defendants had authority to exercise supervisory control over the injury-producing work, not whether they created or had notice of the hazardous condition … . The record establishes, as a matter of law, that they had no such authority. It is undisputed that Homeowner Defendants lived offsite during the renovation project and had no involvement with the work, and Apex’s owner testified that the homeowners did not direct or control Apex’s work … . Tsongas v Apex Constr./Masonry Corp., 2020 NY Slip Op 07520, First Dept 12-15-20

 

QUESTION OF FACT WHETHER THE TWO BY FOUR PLAINTIFF TRIPPED OVER WAS DEBRIS, WHICH WOULD CONSTITUTE A VIABLE LABOR LAW 241(6) CAUSE OF ACTION, OR PART OF A SAFETY BARRICADE, WHICH WOULD NOT (FIRST DEPT).

The First Department determined there was a question of fact whether the two by four plaintiff tripped over was debris, which would constitute a viable Labor Law 241(6) cause of action, or part of a safety barricade, which would not:

Plaintiff’s motion for partial summary judgment on the Labor Law § 241(6) claim based on Industrial Code (12 NYCRR) § 23-1.7(e)(2) should be denied. This Industrial Code provision requires work areas to be kept free of debris and scattered tools and materials “insofar as may be consistent with the work being performed,” and thus is not violated when the condition that caused the plaintiff to trip or slip was integral to the work being performed, such as the presence of materials placed in the work area intentionally …. The staircase that plaintiff was approaching was installed by the ironworkers, and there is testimony that it was not opened for use until days after plaintiff’s accident. Plaintiff acknowledged that the staircase had not been completed at the time of his accident, that a barricade remained in place around three sides of the opening in the floor, and that an ironworker was working on the fourth side at the top of the stairs where the barricade had been removed. Under the circumstances, issues of fact exist as to whether the two-by-four over which plaintiff tripped was part of the barricade blocking the staircase opening in the floor and therefore integral to the work at the time of his accident, even if the barricade had been pulled back or removed from the front of the stairs where an iron worker was working … . Rudnitsky v Macy’s Real Estate, LLC, 2020 NY Slip Op 07325, First Dept 12-8-20

 

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CLAIMANT FELL OFF AN I-BEAM AND HIS LANYARD DID NOT PREVENT HIM FROM STRIKING THE DECK EIGHT TO TEN FEET BELOW; CLAIMANT’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing the Court of Claims, determined claimant’s motion for summary judgment on his Labor Law 240(1) cause of action should have been granted. Claimant alleged he fell off an I-beam and his lanyard didn’t stop him from striking the deck eight to ten feet below:

The record establishes that the safety devices “proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity” … . Specifically, the record shows that the safety cable was set up too low, resulting in claimant’s striking the deck before the lanyard could deploy … . Stigall v State of New York, 2020 NY Slip Op 07306, First Dept 12-3-20

 

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PLAINTIFF FELL FROM A SCAFFOLD AFTER TOUCHING A LIVE ELECTRIC WIRE; FAILURE TO TURN OFF THE ELECTRICITY MAY BE COMPARATIVE NEGLIGENCE WHICH DOES NOT DEFEAT A LABOR LAW 240 (1) CAUSE OF ACTION; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 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 was standing on a scaffold installing an exit sign when he touched a live wire and fell. Failure to turn off the electricity was at most comparative negligence which does not defeat the action:

The undisputed evidence in the record shows that plaintiff was attempting to install an exit sign in a building under construction while standing about 12 feet above the floor on a scaffold platform, without using any safety harness or safety lines, when he touched a live wire to a component of the sign, causing him to receive an electrical shock and then fall off the scaffold and onto the floor. Plaintiff made a prima facie showing that his accident was proximately caused by the inadequacy of the safety devices he was using or the absence of other safety devices necessary to protect him from the risks posed by working at a significant elevation above the floor … .

Defendants did not raise issues of fact by pointing to evidence that plaintiff checked the scaffold before using it and did not find it to be defective, and that the scaffold had safety railings on all four sides, or by asserting that no other devices such as a safety harness or safety line would have prevented his fall … .

Defendants failed to raise an issue of fact as to whether “plaintiff knew that he was supposed to use a harness” or safety line, “or that he disregarded specific instructions to do so” … . …

Plaintiff’s failure to turn off the power supply before working with a live wire was at most comparative negligence, which is not a defense to a Labor Law § 240(1) claim … . Goundan v Pav-Lak Contr. Inc., 2020 NY Slip Op 06950, First Dept 11-24-20

 

A HEAVY STONE SLAB SLIPPED OUT OF A SLING AS IT WAS BEING HOISTED AND FELL ON PLAINTIFF; PLAINTIFF DID NOT HAVE TO SHOW THE EQUIPMENT WAS DEFECTIVE AND DID NOT HAVE TO SHOW HE AND A CO-WORKER WERE NOT NEGLIGENT; 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) claim in this falling object case should have been granted. A heavy stone slab which was being hoisted slipped out of a sling and fell on plaintiff. Plaintiff did not have to show the equipment was defective and did not have to show freedom from comparative fault:

Labor Law § 240(1) imposes on owners, general contractors, and their agents a nondelegable duty to provide safety devices to protect against elevation-related hazards inherent in construction, and they will be absolutely liable for any violation that proximately causes injury regardless whether they supervised or controlled the work … . The statute is violated when an object that is improperly hoisted or inadequately secured falls … .

Because the sling proved inadequate to secure the slab against falling, the statute was violated … . Defendants’ contention that because the hoist and slings had sufficient load capacity to hoist the slab and were not broken or defective, plaintiff was required to demonstrate how the slab became unsecured, is unavailing. Either the sling itself or the manner in which it was used to secure the slab was inadequate and failed to provide proper protection, and plaintiff was not required to demonstrate how or why it failed to support the slab … .

Any failure by plaintiff to properly secure the slab with the straps would at most be comparative negligence which is not a defense to Labor Law § 240(1) … . Furthermore, any failure by his coworker to properly secure the slab with the straps was not so extraordinary or removed from defendants’ duty to provide an adequate safety device so as to constitute a superseding, intervening event breaking the chain of causation … . Gallegos v Bridge Land Vestry, LLC, 2020 NY Slip Op 06854, First Dept 11-19-20

 

EVIDENCE THE LADDER SLIPPED OUT FROM UNDER PLAINTIFF WAS SUFFICIENT TO WARRANT SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION; PLAINTIFF WAS NOT REQUIRED TO SHOW THE LADDER WAS DEFECTIVE (FIRST DEPT)

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on the Labor Law 240 (1) cause of action should have been granted. Plaintiff was injured when his ladder slipped out from under him. Plaintiff did not have to show the ladder was defective:

Plaintiff’s testimony that the unsecured ladder slipped out from under him established prima facie his entitlement to summary judgment on the Labor Law § 240(1) claim …, and defendants failed to raise an issue of fact in opposition. Their contention that an issue of fact exists as to whether the ladder was appropriate to perform the work is unavailing. Plaintiff was not required to show that the ladder was defective … . Cabrera v 65 Park W. Realty, LLC, 2020 NY Slip Op 06702, First Dept 11-17-20

 

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DOCUMENTARY EVIDENCE SUBMITTED BY DEFENDANT SUBCONTRACTOR DEMONSTRATED IT DID NOT HAVE THE AUTHORITY TO SUPERVISE OR CONTROL THE WORK THAT CAUSED PLAINTIFF’S INJURY; THEREFORE THE LABOR LAW 240 (1) AND 200 CAUSES OF ACTION WERE PROPERLY DISMISSED AND THE COMMON LAW NEGLIGENCE CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, modifying Supreme Court, determined the documentary evidence submitted by defendant subcontractor in this Labor Law 241(6), 200 and common law negligence action conclusively established defendant did not have the authority to supervise of control the work which caused plaintiff’s injury. Defendant’s motion to dismiss pursuant to CPLR 3211 was properly granted re the Labor Law 240 (1) and 200 causes of action and should have been granted re the common law negligence cause of action:

… [T]he court properly granted defendant’s motion insofar as it sought to dismiss the Labor Law causes of action because defendant submitted documentary evidence “conclusively establish[ing]” … that, “as a subcontractor, it did not have the authority to supervise or control the work that caused the plaintiff’s injury and thus cannot be held liable under Labor Law §§ 200 . . . or 241 (6)” … . … [T]he documentary evidence belies plaintiff’s allegation that he is a third-party beneficiary of the contract between his employer and defendant … . … [G]iven the documentary evidence submitted in support of defendant’s motion, … the court should have also granted the motion insofar as it sought to dismiss the common-law negligence cause of action against defendant … . Eberhardt v G&J Contr., Inc., 2020 NY Slip Op 06627, Fourth Dept 11-13-20

 

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