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THERE IS A QUESTION OF FACT WHETHER PLAINTIFF’S WORK CONSTITUTED ‘ALTERING’ WITHIN THE MEANING OF LABOR LAW 241 (6); ACTION AGAINST OUT-OF-POSSESSION LANDLORD PROPERLY DISMISSED, NO SUPERVISORY CONTROL OF THE WORK (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendant’s motion for summary judgment should not have been granted in this Labor Law 241 (6) action. But action against the out-of–possession landlord was properly dismissed because the landlord did not exercise and supervisory control over the work:

Plaintiff alleges that he was injured while installing a refrigeration condenser unit at premises owned by Boss and leased by Antillana. We find that the motion court improperly granted Antillana’s motion for summary judgment dismissing the Labor Law § 241(6) claim. Plaintiff was engaged in an activity within the purview of Labor Law § 241(6). Plaintiff worked at the subject premises during the build-out installing three refrigeration system condensers, which weighed about 3000 pounds and had to be moved with a forklift. Three weeks after the store was opened, plaintiff was asked to install an additional condenser which weighed about 200 pounds. The president of Antillana acknowledged that there had been a renovation project underway at the premises before plaintiff’s accident.

We find that there is an issue of fact whether the subsequent installation of the condenser constituted an “alteration” of the premises, which falls within the ambit of “construction” work under Labor Law § 241(6) … .

We also find triable issues of material fact as to whether Antillana violated 12 NYCRR 23-1.25(d), (e)(1), (e)(3), and (f), relied upon by plaintiff to support his Labor Law § 241(6) claim. Rodriguez v Antillana & Metro Supermarket Corp., 2019 NY Slip Op 07714, First Dept 10-29-19

 

ALTHOUGH THE FREE-STANDING BRACE FRAME WAS AT THE SAME LEVEL AS PLAINTIFF AT THE TIME IT FELL OVER, PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT).

The First Department determined that, although the brace frame and plaintiff were at the same level, the injury caused by the free-standing brace frame tipping over was covered by Labor Law 240 (1):

The brace frames … , which stood at least 12 feet tall and weighed approximately 1,500 pounds, were not connected to the excavator bucket or any other device either to hold them upright once the connector pins were removed or to lower them slowly to the ground. When plaintiff removed the last connector pin, the brace frame fell and struck him.

Contrary to defendants’ contention, this evidence establishes prima facie that the activity in which plaintiff was engaged is covered under Labor Law § 240(1). Although plaintiff and the brace frame were at the same level at the time of the accident, the work plaintiff was doing posed a substantial gravity-related risk, because the falling of the brace frame away from the formwork panel would have generated a significant amount of force … .

An engineer employed by defendant Peri Formwork Systems, Inc., the manufacturer of the formwork structure, testified that if a formwork structure was disassembled on the ground, then the brace frames had to be secured by a crane before removing them, and if the formwork structure was standing upright, then each individual component had to be secured by a crane. He said that an unsecured brace frame freestanding in the air would pose a hazard to any worker standing nearby. Encarnacion v 3361 Third Ave. Hous. Dev. Fund Corp., 2019 NY Slip Op 07746, First Dept 10-29-19

 

SCAFFOLD TIPPED PINNING PLAINTIFF’S HAND AGAINST A WALL; SPECULATIVE EVIDENCE DID NOT RAISE A QUESTION OF FACT ABOUT PLAINTIFF’S ACTIONS BEING THE SOLE PROXIMATE CAUSE; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) 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. A scaffold tipped and pinned his hand against a wall, and plaintiff’s actions did not constitute the sole proximate cause of the injuries:

Plaintiff is entitled to partial summary judgment on his Labor Law § 240(1) claim. Regardless of whether plaintiff’s hand was struck by the beam of the scaffold or the counterweights placed on the scaffold, this matter falls within the purview of Labor Law § 240(1). Plaintiff’s injuries were the direct result of the application of the force of gravity to the scaffold and the counterweights, and, although the scaffold and counterweights fell a short distance after the scaffold tipped, the elevation differential was not de minimis, as their combined weight of over 2,400 pounds was capable of generating a great amount of force during the short descent … .

The scaffold was a load that required securing for the purpose of plaintiff’s undertaking … . Contrary to defendants’ contention, the counterweights were not a safety device provided to secure the equipment being tied to the bracket, but were to balance a scaffold that would later be suspended from it.

Furthermore, the record establishes, as a matter of law, that plaintiff was not the sole proximate cause of his injuries. Plaintiff and his coworker both testified that there was slack in the tieback at the time of the accident. Their foreman’s testimony that the scaffold tipped over due to overtightening of the tieback by plaintiff is speculative, as he did not witness the accident. The reports and expert affidavit submitted by defendants concluding that the accident was caused by overtightening are also speculative. In any event, even accepting the defense’s proof, it is still insufficient to raise an issue of fact as to sole proximate causation, since the record established that the scaffold tipped over in part due to being inadequately secured, raising only comparative negligence by plaintiff … . Ortega v Trinity Hudson Holding LLC, 2019 NY Slip Op 07743, First Dept 10-29-19

 

UNLOADING A HEAVY AIR CONDITIONING COIL FROM A TRUCK IS AN ACTIVITY COVERED BY LABOR LAW 240 (1) (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined that unloading a heavy coil from and truck was an activity covered by Labor Law 240 (1):

Plaintiff was injured when an air conditioning system coil that weighed at least 300 pounds and was being transported secured to two dollies fell on his leg as he and three coworkers unloaded it from a truck. After plaintiff and his coworkers had brought the coil to ground level on the truck’s lift gate and were attempting to move it off the lift gate, a wheel of a dolly became caught in a gap on the lift gate, and the coil tipped over.

In view of the weight of the coil and the amount of force it was able to generate, even in falling a relatively short distance, plaintiff’s injury resulted from a failure to provide protection required by Labor Law § 240(1) against a risk arising from a significant elevation differential … . Moving the coil safely required either hoisting equipment or a device designed to secure the coil against tipping or falling over … . Ali v Sloan-Kettering Inst. for Cancer Research, 2019 NY Slip Op 07544, First Dept 10-22-19

 

INSTALLING WINDOW SHADES IS NOT ‘ALTERING’ WITHIN THE MEANING OF LABOR LAW 240 (1) AND WAS NOT PART OF THE GENERAL CONTRACTOR’S RESPONSIBILITIES (FIRST DEPT).

The First Department, reversing Supreme Court, determined that defendants’ motion for summary judgment  on the Labor Law 240 (1), 241 (6) and 200 causes of action should have been dismissed. Plaintiff’s work was not “altering” within the meaning of Labor Law 240 (1) and was not part of the general contractor’s (Greenlight’s) contract with the apartment owners (the Dixons):

Because plaintiff Martin Topoli’s work installing window shades at the time of the accident does not constitute “altering” within the meaning of Labor Law § 240(1), that claim is dismissed …. The Labor Law § 241(6) claim is also dismissed, since plaintiff’s work is separate and distinct from the larger construction project … . Third-party defendants and apartment owners, Rebecca Dixon and Adam Dixon, modified the contract with general contractor Greenlight Construction Management Corp. to remove the provision and installation of window treatments from the scope of its work. The Dixons directly contracted with plaintiff’s employer for the installation of the window shades after the construction work was completed and they had moved in to the apartment. Greenlight’s return to the work site after the completion of construction, done to accommodate the Dixons’ new desire for larger window valances, was limited in nature and separate from plaintiff’s work. Topoli v 77 Bleecker St. Corp., 2019 NY Slip Op 07537, First Dept 10-22-19

 

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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED IN THIS CRANE-ACCIDENT CASE; THE ESPINAL ‘LAUNCHED AN INSTRUMENT OF HARM’ CAUSE OF ACTION AGAINST THE COMPANY WHICH REFURBISHED AND MAINTAINED THE CRANE SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action should have been granted in this crane-accident case. The First Department also held that the negligence action against the company (Hoffman) which refurbished and maintained the crane, based upon the Espinal “launched an instrument of harm” theory, should not have been dismissed:

The collapse of a crane constitutes a prima facie violation of Labor Law § 240(1) … . A plaintiff need not be directly injured by a portion of the crane for the Labor Law to apply — injuries that occur while trying to avoid being struck during a hoisting accident may qualify … . While plaintiff’s testimony at his deposition varied somewhat from his 50-h testimony, he repeatedly cautioned that the accident happened so fast it was difficult for him to describe exactly how it occurred. In any event, no matter which version is accepted, Labor Law § 240(1) applies to the … defendant … .

Hoffman refurbished the subject crane one year before the accident and performed maintenance on it several times thereafter. Although a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third person … , an exception exists where a contractor who undertakes to perform services pursuant to a contract negligently creates or exacerbates a dangerous condition so as to have “launched a force or instrument of harm” (Espinal v Melville Snow Contrs., 98 NY2d 136, 141-142 [2002] …). Hoffman failed to adequately address the findings of the independent crane company that conducted the post-accident investigation, which concluded that several maintenance and repair issues contributed to over wear on the crane’s wire ropes … . DeGidio v City of New York, 2019 NY Slip Op 07218, First Dept 10-8-1

 

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PLAINTIFFS FELL FROM A LIFT TRUCK WHICH WAS STRUCK BY A BUS, SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED; HEARSAY ALONE WILL NOT DEFEAT A MOTION FOR SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiffs’ motion for summary judgment on the Labor Law 240 (1) cause of action should have been granted, noting that hearsay alone will not defeat a summary judgment motion:

Plaintiffs … established prima facie that defendants are liable for their injuries under Labor Law § 240(1) by submitting evidence that they fell to the ground and were injured when the lift truck upon which they were working moved when it was struck by a passing bus … . Moreover, the lift truck, which was being used as an elevated work platform, lacked a guardrail to prevent … . In opposition, defendants failed to raise an issue of fact. They rely instead on hearsay evidence as to how the accident may have occurred. Such hearsay evidence alone is insufficient to defeat a motion for summary judgment … . South v Metropolitan Transp. Auth., 2019 NY Slip Op 07213, First Dept 10-8-19

 

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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION IN THIS LADDER-FALL CASE SHOULD HAVE BEEN GRANTED; THE PROPERTY OWNER WAS ENTITLED TO COMMON LAW INDEMNITY (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) claim in this ladder-fall case, and the property owner, Church of God, was entitled to common law indemnity because plaintiff’s work was supervised by his apparent employer, Belfor:

Plaintiff’s testimony that the ladder wobbled, flipped, and flopped, causing him to fall, sets forth a prima facie violation of Labor Law § 240(1) … . Defendants failed to adduce any evidence rebutting plaintiff’s showing, making summary judgment appropriate.

Plaintiff testified that he was using a Belfor ladder at the time of his fall. Belfor’s deponent, who had no knowledge of the accident, conceded that Belfor had ladders on site, and could not say whether plaintiff’s employer, the subcontractor who furnished labor for the cleaning and debris removal portion of the project, also brought ladders. There were no other subcontractors on site. Belfor’s deponent also testified that Belfor had a site supervisor, the only Belfor employee on site that day, and that he would have been “in the thick of it,” and not performing paperwork or similar administrative tasks. Plaintiff, who wore a Belfor uniform at Belfor’s behest, testified that Belfor employees were “the bosses,” ordering him around. This evidence, taken together, is sufficient to establish that Church of God made a prima facie showing of entitlement to common law indemnity … . Rivera-Astudillo v Garden of Prayer Church of God in Christ, Inc., 2019 NY Slip Op 07033, First Dept 10-1-19

 

PLAINTIFF’S INJURY DID NOT INVOLVE THE TYPE OF ELEVATION HAZARD CONTEMPLATED BY LABOR LAW 240 (1) AND DEFENDANTS DID NOT EXERCISE A LEVEL OF SUPERVISORY CONTROL SUFFICIENT TO TRIGGER LIABILITY UNDER LABOR LAW 200 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s injury did not involve the type of elevation hazard covered by Labor Law 240 (1) and defendants  did not exercise the level of supervisory control necessary for liability under Labor Law 200:

The plaintiff allegedly was injured when a metal plate, which was used to cover an excavated trench located on the roadway, struck the plaintiff as it was being removed from the roadway surface. * * *

… [T]he defendants established their prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 200 and common-law negligence causes of action by their submissions, which demonstrated that they only had general supervisory authority over the plaintiff’s work … . …

“The contemplated hazards [of Labor Law § 240(1)] are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured” … . The defendants established, prima facie, that the plaintiff’s injury did not result from the type of elevation-related hazard contemplated by Labor Law § 240(1) … . Lombardi v City of New York, 2019 NY Slip Op 06763, Second Dept 9-25-19

 

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JUDGES IN THE 2ND DEPARTMENT HAVE THE DISCRETION TO ORDER UNIFIED PERSONAL INJURY TRIALS WHERE THE ISSUES OF LIABILITY AND THE INJURIES ARE INTERTWINED AS THEY WERE IN THIS CONSTRUCTION ACCIDENT CASE; DEFENSE VERDICT SET ASIDE AND A NEW UNIFIED TRIAL ORDERED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Scheinkman, setting aside the defense verdict on liability and ordering a new trial, determined that the trial judge had the discretion to order (and should have ordered) a unified trial (both liability and damages) in this Labor Law 240 (1), 241 (6), 200 and common law negligence action. Plaintiff (Castro) alleged the elevated work platform he was on collapsed and he fell 6 or 7 feet to the ground. There were no witnesses to the incident. Plaintiff alleged brain, head, shoulder and spine injuries. The defense alleged plaintiff was injured moving planks and did not in fact fall. Evidence of any brain injury was excluded from the trial. Because the evidence of brain injury was consistent with a fall, and inconsistent with moving planks, the exclusion of that evidence affected the fairness of the trial. The opinion makes it clear that judges in the Second Department have the discretion to order unified trials in personal injury cases:

Here, by any standard, a unified trial was warranted. Labor Law § 240(1) “imposes on owners or general contractors and their agents a nondelegable duty, and absolute liability for injuries proximately caused by the failure to provide appropriate safety devices to workers who are subject to elevation-related risks” … . [Defendants] disputed the plaintiffs’ claim that Castro fell from a scaffold and contended that the accident resulted not from an elevation-related risk, but from Castro’s action in lifting wooden planks. Evidence relating to Castro’s brain injuries, which would not have occurred from lifting wooden planks, was probative in determining how the incident occurred … . Thus, the nature of the injuries had an important bearing on the issue of liability.

The Supreme Court did not exercise its available discretion in denying the plaintiffs’ motion for a unified trial. The court’s determination was predicated upon its perception that a bifurcated trial was strictly required by the Second Department’s “rules.” However, neither the statewide rule nor the governing precedent absolutely requires that the trial of a personal injury action be bifurcated. Although bifurcation is encouraged in appropriate settings, bifurcation is not an absolute given and it is the responsibility of the trial judge to exercise discretion in determining whether bifurcation is appropriate in light of all relevant facts and circumstances presented by the individual cases. …

Because the issues of liability and Castro’s injuries were so intertwined, the court’s insistence upon bifurcation and its ensuing limitations on the scope of the medical evidence that could be elicited by the plaintiffs deprived them of a fair trial. Castro v Malia Realty, LLC, 2019 NY Slip Op 06466, Second Dept 9-11-19

 

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