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RARE CASE WHERE PLAINTIFF’S SUMMARY JUDGMENT MOTION ON LABOR LAW 200 AND COMMON-LAW NEGLIGENCE CAUSES OF ACTION WAS APPROPRIATELY GRANTED (FIRST DEPT).

The First Department determined this was a rare case where summary judgment was appropriate on a Labor Law 200, common-law negligence cause of action:

Here, PSJV, the entities responsible for site cleanliness and trade coordination, at a time when the project was open to the elements, covered a recessed area of the third floor, where rainwater regularly collected, with non-waterproof planking, and never inspected it for water accumulation. Further, PSJV did not warn plaintiff or his employer that he was working under the recessed area, and when he drilled into the second floor ceiling to affix electrical equipment, the sludgy, oily water poured down onto him, causing him to lose his balance and injure himself. Thus, plaintiffs made a prima showing that the accident occurred due to a defective condition on the premises of which PSJV had actual notice, having caused and created it … . In response, PSJV failed to adduce credible evidence that anyone else, including plaintiff electrician, negligently caused the accident … . Langer v MTA Capital Constr. Co., 2020 NY Slip Op 03171, First Dept 6-3-20

 

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JUDGE SHOULD NOT HAVE SEARCHED THE RECORD AND, SUA SPONTE, GRANTED RELIEF NOT REQUESTED IN THE MOTION PAPERS, INCLUDING THE APPLICATION OF THE RES IPSA LOQUITUR DOCTRINE (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the judge should not have, sua sponte, searched the record to grant relief that was not requested in this Labor Law 200, 240(1), 241(6), negligence action. Plaintiff was injured when a portion of a ceiling fell causing a scaffold to collapse on him. The judge should not have granted summary judgment on a negligence cause of action which was not included in the motions, and should not have granted summary judgment on a res ipsa loquitur theory:

While it is well settled that the Supreme Court has the authority to search the record and grant summary judgment to a nonmoving party with respect to an issue that was the subject of a motion before the court (see CPLR 3212[b] …), here, the court, in effect, searched the record and awarded summary judgment to the movant with respect to an issue that was not the subject of the motion before the court. …

The doctrine of res ipsa loquitur applies when the injury-causing event (1) is “of a kind which ordinarily does not occur in the absence of someone’s negligence”; (2) “[is] caused by an agency or instrumentality within the exclusive control of the defendant”; and (3) was not “due to any voluntary action or contribution on the part of the plaintiff” … . Contrary to the Supreme Court’s determination, this is not one of “the rarest of res ipsa loquitur cases” where the plaintiff’s circumstantial evidence is so convincing and the defendant’s response so weak that the inference of the defendant’s negligence is inescapable … . Although the first and third elements may be satisfied in the plaintiff’s favor, based upon the limited record, this standard was not met as to the second element. Even though courts do not generally apply the requirement of exclusive control as it is literally stated or as a fixed, mechanical or rigid rule … , the plaintiff failed to demonstrate that the plaster ceiling is “structural” and, therefore, the obligation of [defendant] Lexington to maintain pursuant to the terms of the lease it entered into with [defendant] Dover. Moreover, the papers do not establish the plaintiff’s entitlement to summary judgment against Dover on this issue, which was raised by the court sua sponte as against Dover, and was not the subject of the plaintiff’s motion as against Dover. Zhigue v Lexington Landmark Props., LLC, 2020 NY Slip Op 02948, Second Dept 5-20-20

 

QUESTION OF FACT WHETHER PLAINTIFF WAS TOLD TO PAINT ONLY WHERE HE COULD REACH WITHOUT THE LADDER IN THIS LADDER-FALL CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined there was evidence plaintiff was told only to paint areas he could reach without the ladder. Plaintiff fell from the ladder:

Plaintiff was injured when he fell from a ladder while painting an apartment in a building owned by defendant. The testimony of plaintiff’s employer, that he had specifically instructed plaintiff only to paint areas he could reach and not to use the ladder, raises triable issues as to whether plaintiff’s duties were expressly limited to work that did not expose him to an elevation-related hazard within the purview of Labor Law § 240(1) … . Orellana v Mo-Hak Assoc., LLC, 2020 NY Slip Op 02867, First Dept 5-14-20

 

LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED; THE ACCIDENT WAS RELATED TO MATERIAL ON THE FLOOR WHICH CAUSED THE WHEELS OF A CART PLAINTIFF WAS PUSHING TO GET STUCK; DEFENDANT DID NOT DEMONSTRATE WHEN THE FLOOR WAS LAST INSPECTED OR CLEANED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the Labor Law 200 and common law negligence causes of action should not have been dismissed. Plaintiff was pushing a cart when the wheels got stuck. When a coworker kept pulling the cart plaintiff hand was pinned and the tip of his index finger was severed. Plaintiff alleged there were steel rods (which were integral to the work) and garbage on the floor:

A defendant will be found to have “failed to establish that they lacked constructive notice of the dangerous condition that caused plaintiff’s injury, [if] they submitted no evidence of the cleaning schedule for the work site or when the site had last been inspected before the accident” … .

Here, plaintiff alleges that there was “garbage” as well as rods on the floor that impeded the cart’s movement. Bravo’s [the builder’s] contract explicitly required it to look for dangerous and hazardous conditions on a daily basis, and to keep the workplace safe. However, since Bravo submitted no evidence as to its inspection and cleaning schedule of the worksite, this claim must be reinstated.

It is not relevant whether the rods on which the cart got stuck were an open and obvious condition that plaintiff could have seen, since that issue raises a question of plaintiff’s comparative negligence and does not bear on defendant’s own liability … . Spencer v Term Fulton Realty Corp., 2020 NY Slip Op 02855, First Dept 5-14-20

 

WIRES WHICH CAUSED PLAINTIFF TO TRIP AND FALL WERE INTEGRAL TO THE WORK BEING PERFORMED AND CANNOT THEREFORE BE CONSIDERED DEBRIS WITHIN THE MEANING OF THE INDUSTRIAL CODE; THE LABOR LAW 241(6) CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s Labor Law 241(6) cause of action should have been dismissed. Plaintiff fell when his foot became entangled in electrical wires hanging from the ceiling. The wires were integral to the work being performed. Therefore the Industrial Code provision prohibiting the accumulation of debris did not apply. However the common law negligence (dangerous condition) cause of action properly survived summary judgment:

To prevail on a cause of action alleging a violation of Labor Law § 241(6), a plaintiff “must set forth a violation of a specific rule or regulation promulgated by the Commissioner of the Department of Labor” … . Here, the plaintiff alleged a violation of 12 NYCRR 23-1.7(e)(2), which requires that “[t]he parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed.” However, 12 NYCRR 23-1.7(e)(2) is “inapplicable [where] the material over which [a plaintiff] alleges he [or she] tripped was integral to the work being performed” … . Martinez v 281 Broadway Holdings, LLC, 2020 NY Slip Op 02773, Second Dept 5-13-20

 

LABOR LAW 200, 241(6) AND COMMON LAW NEGLIGENCE CAUSES OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT IN THIS WORKPLACE SLIP AND FALL CASE (FIRST DEPT).

The First Department determined plaintiff’s Labor law 200, 241(6)  and common law negligence causes action properly survived summary judgment in this workplace slip and fall case. Plaintiff fell going down a staircase and there was evidence that dust and perhaps paint was on the stairway associated with sanding and painting the walls. Although the stairway was not a passageway pursuant to the Industrial Code, there was a question of fact whether the stairway was a work area, even though no work was being done at the time of the fall. The defendant responsible for cleaning up, Magnetic, could be liable as a statutory agent:

… [P]laintiff’s identification of the cause of his slip and fall is not merely speculation. He testified that after he fell down the stairs, the steps he could see from the bottom of the staircase were dusty, his clothes were dusty, and his jacket was wet with paint. Further, there is testimony in the record that the walls of the stairway had been sanded and painted before plaintiff’s accident. * * *

Industrial Code § 23-1.7(e)(2) may serve as a predicate for plaintiff’s Labor Law § 241(6) claim, as it applies to slipping as well as tripping hazards … . …

Industrial Code § 23-1.7(d) is applicable to plaintiff’s accident. While a staircase used to provide access to a job site is not a passageway or other working surface within the meaning of the provision unless it is the sole means of access … , the provision is applicable if the staircase was a work area … . …

Insofar as Magnetic was delegated authority for the injury-producing work, retained subcontractors to perform the injury-producing work, and was responsible for clean-up at the site, it may be held liable under Labor Law § 241(6) as a statutory agent … . Ohadi v Magnetic Constr. Group Corp., 2020 NY Slip Op 02278, First Dept 4-16-20

 

FALL AFTER STEPPING ON LOOSE PIPES NOT COVERED BY LABOR LAW 240 (1); LABOR LAW 200 AND 241 (6) CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the Labor Law 240 (1) cause of action based upon plaintiff’s fall when he stepped on a pile of loose pipes was properly dismissed. However the Labor Law 200 cause of action and the Labor Law 241 (6) cause of action against some of the defendants should not have been dismissed:

The court correctly dismissed the Labor Law § 240(1) claim, as that statute does not cover a fall allegedly caused by stepping on a pile of unsecured pipes on the floor of a construction site … . …

The Labor Law § 200 and common-law negligence claims should not be dismissed as against UA, Independent Mechanical, Intel Plumbing, and WeWork. The cause of plaintiff’s accident was not the manner in which his work was performed but a dangerous condition on the premises, i.e., the loose pipes that had been laid on the floor directly in front of a doorway … . …

… [T]he record does not support the summary dismissal of the Labor Law § 241(6) claim as against the UA and 401 Park defendants. Plaintiff’s testimony that his fall was caused by a pile of loose pipes obstructing the doorway presents an issue of fact as to whether the accident was caused by a tripping hazard in a passageway (Industrial Code [12 NYCRR] § 23-1.7[e][1] … ). There is also an issue of fact as to whether the accident was caused by a violation of 12 NYCRR 23-1.7(e)(2), since part of the floor where workers worked or passed was not kept free from scattered tools or materials … . In addition, there is an issue of fact as to whether the unsecured pipes, which were allegedly piled about two feet high directly in front of the doorway, were safely stored pursuant to 12 NYCRR 23-2.1(a)(1) … . Armental v 401 Park Ave. S. Assoc., LLC, 2020 NY Slip Op 02154, First Dept 4-2-20

 

PLAINTIFF WAS ENGAGED IN REPAIR WORK WHEN A PERMANENT LADDER IN AN ELEVATOR SHAFT ALLEGEDLY VIBRATED CAUSING HIM TO FALL; EVEN IF A HARNESS WERE AVAILABLE, COMPARATIVE NEGLIGENCE IS NOT A DEFENSE TO A LABOR LAW 240(1) ACTION; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s Labor Law 240(1) cause of action should not have been dismissed. Plaintiff was engaged in a long-term project to repair elevator cables which were striking objects in the elevator shaft. While using a ladder that was permanently affixed in the shaft when it allegedly vibrated causing him to fall:

… [W]hile an unsecured ladder that moves or shifts constitutes a prima facie violation of Labor Law § 240(1) … , the ladder from which plaintiff fell was secured to the structure, and, other than allegedly vibrating, it did not move, shift or sway. Under the circumstances, an issue of fact exists whether the secured, permanently affixed ladder that allegedly vibrated provided proper protection for plaintiff.

The record demonstrates, contrary to defendants’ contention, that at the time of his accident plaintiff was performing not routine maintenance but repair work, which falls within the protective ambit of Labor Law § 240(1) … . …

Defendants failed to establish that plaintiff was the sole proximate cause of his accident, as they submitted no evidence that plaintiff knew that he was supposed to use a harness for climbing ladders or that he disregarded “specific instructions” to do so … . Further, to the extent the ladder failed to provide proper protection, plaintiff’s failure to use a harness amounts at most to comparative negligence, which is not a defense to a Labor Law § 240(1) claim … . Kehoe v 61 Broadway Owner LLC, 2020 NY Slip Op 01391, First Dept 2-27-20

 

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QUESTIONS OF FACT WHETHER WALKING ON THE REBAR GRID WAS AN INHERENT RISK OF THE JOB AND WHETHER THE GRID WAS A DANGEROUS CONDITION PRECLUDED A DIRECTED VERDICT IN THIS LABOR LAW 200 ACTION; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined questions of fact for the jury precluded the directed verdict (CPLR 4401) for the defendants in this Labor Law 200 action. Plaintiff was working as a surveyor at a construction site. He was walking across a rebar grid when one of his legs fell through. There were questions of fact whether walking on the rebar grid was an inherent risk of his job and whether the grid was a dangerous condition. Plaintiff’s motion to set aside the directed verdict (CPLR 4404) should have been granted:

Labor Law § 200 is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work … . The duty, however, is subject to recognized exceptions … . It does not extend to hazards which are part of or inherent in the very work which the contractor is to perform, or where the contractor is engaged for the specific purpose of repairing the defect … .

Here, in directing a verdict in favor of the defendants on the issue of liability, the Supreme Court improperly decided the factual questions of whether traversing an uncovered rebar grid was an inherent risk in the injured plaintiff’s work as a surveyor, and whether the uncovered rebar grid was a dangerous condition under the circumstances presented. The record demonstrates that the plaintiffs’ evidence made out a prima facie case, and that disputed factual issues existed which should have been resolved by the jury. Since the court failed to draw “every favorable inference” in favor of the plaintiffs and because the court resolved disputed issues of fact … , the matter must be remitted to the Supreme Court, Queens County, for a new trial on the issue of liability. Vitale v Astoria Energy II, LLC, 2020 NY Slip Op 01381, Second Dept 2-26-20

 

GENERAL CONTRACTOR DID NOT EXERCISE ANY SUPERVISORY CONTROL OVER PLAINTIFF’S WORK AND THEREFORE WAS NOT LIABLE FOR AN INJURY ARISING FROM THE MANNER OF PLAINTIFF’S WORK FOR A SUBCONTRACTOR; LABOR LAW 200 CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Labor Law 200 action against the general contractor, El Sol. should have been dismissed. The accident involved the manner in which the work was done, not a dangerous condition. Plaintiff was employed by a subcontractor. Because El Sol did not exercise any supervisory control over plaintiff’s work, El Sol was not liable:

“Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed” … . Where “a claim arises out of alleged defects or dangers arising from a subcontractor’s methods or materials, recovery against the owner or general contractor cannot be had unless it is shown that the party to be charged exercised some supervisory control over the operation” … . “A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed” … . “[M]ere general supervisory authority at a 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” … .

Contrary to the plaintiff’s contentions, El Sol established, prima facie, that the accident did not arise from a dangerous or defective premises condition but from the method and manner of the work … . El Sol further established that it did not exercise supervision or control over the performance of the work giving rise to the accident … . Boody v El Sol Contr. & Constr. Corp., 2020 NY Slip Op 01140, Second Dept 2-19-20

 

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