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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS SCAFFOLD-COLLAPSE CASE SHOULD HAVE BEEN GRANTED IN THIS LABOR LAW 240 (1) ACTION (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined that plaintiff’s motion for summary judgment in this scaffold-collapse, Labor Law 240 (1) action should have been granted. The defendant did not raise a question of fact whether plaintiff’s omission (failure to use clips) was sole proximate cause of the movement of the scaffold and the fall:

… [T]he collapse of the scaffold, for no apparent reason, gave rise to “a prima facie showing that the statute was violated and that the violation was a proximate cause of the worker’s injuries” … . …

[Defendant] St. Gerard argued that the plaintiff failed to utilize clips to secure the working platform to the frame of the scaffold, and that this conduct was the sole proximate cause of the accident. However, St. Gerard’s evidence was insufficient to raise a triable issue of fact as to whether the plaintiff failed to use clips and whether any failure to use clips constituted the sole proximate cause of the accident. In this regard, St. Gerard relied solely on the affidavit of the plaintiff’s supervisor, Danny Simile, dated nearly 2½ years after the accident, in which Simile averred that “[t]here were no clips at the accident location.” Simile’s affidavit did not explain whether, when, or in what manner he had undertaken a search for clips. Significantly, the absence of clips was not noted in any of three incident reports prepared by Simile shortly after the accident. Additionally, Simile averred, in mere conclusory fashion, that had clips been used to secure the working platform, “the working platform would be secure and it would not move, slide out or fall.” This bare assertion was insufficient to raise a triable issue of fact as to whether any absence of clips was the sole proximate cause of the accident. Indeed, Simile also averred that if the platform had been “properly seated’ or decked'” it would be “secure” and would not “move, slide out or fall.” There was no evidence presented that the platform had been improperly “seated” or “decked.” Cruz v Roman Catholic Church of St. Gerard Magella in Borough of Queens in the City of N.Y., 2019 NY Slip Op 05763, 

 

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THE NOTICES OF CLAIM NOTIFIED THE MUNICIPAL DEFENDANTS ONLY OF THE DAMAGES RELATING TO PLAINTIFF’S DECEDENT, PLAINTIFF’S MOTHER’S MOTION TO AMEND THE COMPLAINT TO ADD HER DERIVATIVE CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the complaint against the municipal defendants could not be amended to assert a derivative cause of action by plaintiff’s decedent’s mother:

In September 2015, the decedent commenced this action against the City, the Port Authority, and another defendant, alleging common-law negligence and violations of the Labor Law. The decedent died on August 7, 2016. Subsequently, the decedent’s mother, Marilyn Conn (hereinafter Marilyn), as administrator of the decedent’s estate and individually, moved for leave to substitute herself as the plaintiff in place of the decedent. She also moved for leave to amend the complaint to add a cause of action to recover damages for wrongful death on behalf of the decedent’s estate and, in effect, a derivative cause of action to recover damages for loss of services on her own behalf, in her individual capacity. …

… [T]he notices of claim filed against the City and the Port Authority were limited to allegations that, as a result of the accident, the decedent was caused to sustain damages related to his “personal injuries, loss of earnings, pain and suffering and medical expenses.” Marilyn was not identified as a claimant in the caption of the notices of claim, she was not mentioned in the text of the notices of claim, and there were no allegations that she, individually, sustained any damages for which compensation was sought from the City or the Port Authority … .

Accordingly, the Supreme Court should have denied that branch of Marilyn’s motion which was, in effect, for leave to amend the complaint to assert a derivative cause of action to recover damages for loss of services on her own behalf, in her individual capacity, against the City and the Port Authority. Since the City and the Port Authority were not given timely notice of Marilyn’s derivative claim, the court should not have allowed it to be asserted against them.  Conn v Tutor Perini Corp., 2019 NY Slip Op 05643, Second Dept 7-17-19

 

FALL FROM A SCAFFOLD WHICH DID NOT HAVE GUARD RAILS ENTITLED PLAINTIFF TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT).

The First Department determined a fall from a scaffold which did not have guard rails entitled plaintiff to summary judgment on his Labor Law 240 (1) cause of action, noting that comparative negligence is not a defense:

Plaintiff was injured in a fall from a scaffold. It is undisputed that the scaffold he was supplied with and directed to use lacked guard rails and that he fell off when the scaffold tipped. Plaintiff was not provided with any other safety devices. This evidence establishes prima facie a violation of Labor Law § 240(1) … .

In opposition, defendants failed to raise an issue of fact. Contrary to defendants’ claim, the alleged failure to unlock the wheels does not raise an issue of fact … . Plaintiff’s fall from the scaffold, without guard rails or other protective devices, was a proximate cause of the accident … . Camacho v Ironclad Artists Inc., 2019 NY Slip Op 05475, First Dept 7-9-19

 

QUESTION OF FACT WHETHER OWNER/GENERAL CONTRACTOR FAILED IN THEIR NONDELEGABLE DUTY TO SHUT OFF THE ELECTRICITY IN A BUILDING UNDERGOING DEMOLITION; PLAINTIFF RECEIVED AN ELECTRIC SHOCK WHEN HE STRIPPED INSULATION FROM AN ELECTRIC CABLE; PLAINTIFF’S LABOR LAW 241(6) CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department determined the property owner/general contractor’s motion for summary judgment on the Labor Law 241(6) cause of action should not have been granted. Plaintiff received an electric shock when cutting away the insulation of an electric cable as part of a demolition project. Plaintiff was to make the wiring in the office safe and was going to test the voltage of the wires lying on the floor when he received the shock:

… [T]he court erroneously granted defendants’ motion with respect to the Labor Law § 241 (6) claim against them insofar as that claim is predicated upon alleged violations of 12 NYCRR 23-1.13 (b) (4) and 23-3.2 (a) (2) and (3), and we therefore modify the order accordingly. The first of those provisions of the Industrial Code states that “[n]o employer shall suffer or permit an employee to work in such proximity to any part of an electric power circuit that he may contact such circuit in the course of his work unless the employee is protected against electric shock by de-energizing the circuit and grounding it or by guarding such circuit by effective insulation or other means” (12 NYCRR 23-1.13 [b] [4] …). The latter provisions state, inter alia, that electric lines must be “shut off and capped or otherwise sealed” before any demolition project begins (12 NYCRR 23-3.2 [a] [2] …) and, if it is necessary to maintain an electric line during demolition, “such lines shall be so protected with substantial coverings or shall be so relocated as to protect them from damage and to afford protection to any person” (12 NYCRR 23-3.2 [a] [3]). Defendants failed to meet their initial burden of establishing that they “did not violate the regulations, that the regulations are not applicable to the facts of this case, or that such violation was not a proximate cause of the accident” … . We conclude that there are issues of fact whether, inter alia, defendants’ failure in their nondelegable duty to shut off the electricity was a proximate cause of the accident … . Winters v Uniland Dev. Corp., 2019 NY Slip Op 05440, Fourth Dept 7-5-19

 

REMOVING PORTABLE LIGHTING EQUIPMENT IS NOT ‘ALTERING’ A STRUCTURE WITHIN THE MEANING OF LABOR LAW 240(1), DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff (McCarthy) was not engaged in activity covered by Labor Law 240 (1) when he fell from the roof of a broadcast booth when removing portable lighting:

… [T]he defendants established their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging a violation of Labor Law § 240(1), through the submission of, inter alia, a transcript of McCarthy’s deposition testimony, which demonstrated that the work McCarthy was performing did not constitute “altering” within the meaning of the statute. McCarthy testified that his work consisted of, inter alia, bringing in and removing portable lighting equipment. McCarthy testified that one of his coworkers had attached the scrim, which is a “double-weave fabric” that is used to equalize lighting levels during filming, to the exterior of the domestic broadcast booth using C-clamps, which are screw-based clamps, and rope. McCarthy testified that on the day of the accident, he walked along the ledge outside of the broadcast booth, cut the rope holding the scrim, removed the scrim, and placed those items in the hallway. He testified that he went back out on the ledge to retrieve three C-clamps, which were screwed into the roof, and fell backwards onto the stadium below. McCarthy’s work of bringing in and removing portable lighting equipment did not constitute altering of any building or structure … . Further, under these circumstances, the placement of a lighting scrim, secured to the exterior of the broadcast booth with screw-based C-clamps, involved no significant physical change to a structure … . McCarthy v City of New York, 2019 NY Slip Op 05121, Second Dept 6-26-19

 

QUESTION OF FACT WHETHER THE LESSEE OF THE PROPERTY WAS AN OWNER OR AGENT OF THE OWNER FOR LABOR LAW PURPOSES, PROPERTY MANAGER WAS NOT LIABLE IN THIS LABOR LAW 240 (1), 241 (6) AND 200 ACTION STEMMING FROM PLAINTIFF’S FALL FROM A ROOF (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, stemming from falling from a roof he was working on, should have been granted with respect to the property owner (Bruckner) and the general contractor (Metro). There was a question of fact whether Western, which leased the property, was an “owner” or “agent” of the owner for Labor Law purposes. However, the property manager, Ashkenazy, had no authority to supervise or control plaintiff’s work and was not liable under Labor Law 240 (1), 241 (6) or 200:

An issue of fact exists as to whether Western, the lessee, was an “owner” or “agent” of the owner, for Labor Law purposes. Record evidence showing that Western was responsible for renovating the premises, including the roof, and had retained Metro as the general contractor for the renovation work, raises an issue of fact as to whether Western had the authority to supervise and control the work site … . The testimony of Western’s director of merchandising that he was not involved with the construction work is insufficient to excuse Western from liability, where he had no knowledge of, and could not testify to, the lease arrangements between Western and Bruckner, as well as the arrangement between Western and Metro … .

Ashkenazy had no involvement with the construction work, and was onsite only to check on its progress, and to ensure it did not interfere with the other tenants. The belief of its “Director of Property Management” that he may have been able to stop work at the job site “[w]ith proper notice I guess as per the lease” is too equivocal to raise an issue of fact. Because there was no evidence that Ashkenazy had authority to supervise or control the work site, the Labor Law § 240(1) claim should be dismissed against it … . Ashkenazy is also entitled to dismissal of the Labor Law § 241(6) claim because, for the same reasons, it is not an “owner” or “agent” under that statute … . Without authority to supervise or control plaintiff’s work, Ashkenazy also may not be held liable under Labor Law § 200 and common law negligence principles in this case involving the means and method of plaintiff’s work … . Reyes v Bruckner Plaza Shopping Ctr. LLC, 2019 NY Slip Op 05003, First Dept 6-20-19

 

PLAINTIFF, WHO IS FIVE FOOT SEVEN, WAS INJURED WHEN A SIX FOOT HIGH STACK OF SCAFFOLDS PARTIALLY FELL ON HIM, THE HEIGHT DIFFERENTIAL WAS DEEMED DE MINIMUS, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 240 (1) ACTION WAS PROPERLY GRANTED (THIRD DEPT).

The Third Department determined defendant’s motion for summary judgment in this Labor Law 240 (1) action was properly granted. Plaintiff, who is five feet seven inches tall, was injured when a six-foot high stack of scaffold partially fell over. The difference between the plaintiff’s height and the height of the stacked scaffolds was deemed de minimus:

In a previous appeal from an order deciding the parties’ motions for summary judgment, we determined that the scaffolding frames, estimated to be about six feet tall, established an elevation differential, but that questions of fact remained as to plaintiff’s actual height, “the number of scaffolds stacked in the pile that collapsed, the weight of each scaffold and the manner in which the scaffold(s) struck plaintiff” … . These details are significant because “[i]n determining whether an elevation differential is physically significant or de minimus, we must consider not only the height differential itself, but also ‘the weight of the [falling] object and the amount of force it was capable of generating, even over the course of a relatively short descent'” … . …

To support their motion, defendants submitted the affidavit of Ernest Gailor, an engineer. Gailor opined that “the [five]-inch differential between the top of . . . plaintiff’s head and the maximum height of [the] frames . . . did not significantly contribute to the ‘total’ force at impact of the offending frame as it struck plaintiff.” * * *

In our view, defendants’ submissions established a prima facie basis to conclude that the elevation differential here was de minimus and that plaintiff’s claim falls outside the scope of Labor Law § 240 (1). Wright v Ellsworth Partners, LLC, 2019 NY Slip Op 04803, Third Dept 6-13-19

 

REPAIRING A LIGHT FIXTURE IS COVERED UNDER BOTH LABOR LAW 240 (1) AND 241 (6), DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying Supreme Court) determined defendants’ motion for summary judgment on plaintiff’s Labor Law 240 (1), 241 (6) and 200 causes of action should not have been granted. Plaintiff fell from an A-frame ladder when he was repairing a light fixture at the Nassau Coliseum. Repairing the light fixture is an activity covered by both Labor Law 240 (1) and 241 (6):

Here, the County defendants’ own submissions highlighted rather than eliminated triable issues of fact as to whether the plaintiff was engaged in repairs or routine maintenance at the time of his accident. Among other things, the County defendants submitted the plaintiff’s deposition testimony in support of summary judgment. Although the plaintiff’s testimony demonstrated that some of the lighting poles on which he worked may have only required the tightening or replacement of a lightbulb, he testified that more labor intensive work was performed on other lighting poles in order to make them function, which fell within the scope of “repairing” a light fixture and, concomitantly, within the scope of Labor Law § 240(1) … . …

“Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon owners and contractors to provide reasonable and adequate protection and safety to persons employed in . . . construction, excavation or demolition work”… . “[T]he courts have generally held that the scope of Labor Law § 241(6) is governed by 12 NYCRR 23-1.4(b)(13), which defines construction work expansively. Under that regulation, construction work consists of [a]ll work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures” …. Since the plaintiff was arguably engaged in the repair of the subject lighting fixtures, the County defendants failed to establish, prima facie, that Labor Law § 241(6) was inapplicable to the plaintiff’s activities. Wass v County of Nassau, 2019 NY Slip Op 04748, Second Dept 6-12-19

 

NEITHER PLAINTIFF NOR DEFENDANTS WERE ENTITLED TO SUMMARY JUDGMENT IN THIS “FALL FROM AN A-FRAME LADDER” CASE (SECOND DEPT).

The Second Department determined both plaintiff’s and defendants’ motions for summary judgment were properly denied. The plaintiff was cutting brackets which held up an air duct with an electric saw when the duct came down and plaintiff fell off an A-frame ladder. The fact that plaintiff fell from a ladder did not, standing alone, warrant summary judgment on plaintiff;s Labor Law 240 (1) cause of action. The defendants did not demonstrate that the ladder provided proper protection or that plaintiff’s conduct was the sole proximate cause of the accident:

… [T]he plaintiff failed to demonstrate, prima facie, that the subject ladder was an inadequate safety device for the work in which he was engaged at the time of his alleged accident … . The mere fact that the plaintiff fell from a ladder does not, in and of itself, establish that proper protection was not provided … . The opinion of the plaintiff’s expert failed to establish that the ladder that was provided was an inadequate safety device … .

… [D]efendants failed to establish their prima facie entitlement to judgment as a matter of law on that branch of their cross motion which was for summary judgment dismissing the Labor Law § 240(1) cause of action. The defendants’ expert’s affidavit, in which the expert opined that the subject ladder “was so constructed, placed and operated as to give proper protection,” is conclusory and unsupported by evidence in the record. The defendants also failed to demonstrate, prima facie, that the plaintiff’s conduct was the sole proximate cause of his fall because he allegedly failed to use scaffolding that was readily available at the job site  … . In addition, the defendants failed to establish, prima facie, that the plaintiff’s conduct was the sole proximate cause of his fall because he allegedly improperly positioned the ladder … , did not ask his coworker to cut the bracket for him … , and did not demand that his foreman provide scaffolding … . Orellana v 7 W. 34th St., LLC, 2019 NY Slip Op 04711, Second Dept 6-12-19

 

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PLAINTIFF FELL THROUGH AN INADEQUATELY PROTECTED HOLE IN DEFENDANT’S BUILDING WHEN HE (APPARENTLY) WAS DOING WORK ON BEHALF OF HIS EMPLOYER, APPARENTLY A TENANT IN THE BUILDING; PLAINTIFF SHOULD HAVE BEEN AWARDED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION AGAINST THE BUILDING OWNER; BUT PLAINTIFF PRESENTED NO PROOF HIS EMPLOYER HAD ASSUMED THE DUTIES OF AN AGENT OF THE OWNER FOR SUPERVISION OF HIS WORK, THEREFORE SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) ACTION AGAINST THE EMPLOYER WAS PROPERLY DENIED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that plaintiff’s Labor Law 240 (1) cause of action against the building owner should have been granted, but his Labor Law 240 (1) cause of action against his employer, Bright Way, was properly denied because plaintiff presented no proof Bight Way acted as the owner’s agent. Apparently Bright Way occupies the owner’s building. Plaintiff is a salesman for Bright Way. Plaintiff was instructed to run a thermostat wire on the second floor of the building when he fell 15 feet through an inadequately protected hole:

Labor Law § 240(1) “imposes liability only on contractors, owners or their agents” (…see Labor Law § 240[1]). “An agency relationship for purposes of section 240(1) arises only when work is delegated to a third party who obtains the authority to supervise and control the job”… . “Where the owner or general contractor delegates to a third party the duty to conform to the requirements of the Labor Law, that third party becomes the statutory agent of the owner or general contractor” … . “The key question is whether the defendant had the right to insist that proper safety practices were followed” … . “[U]nless a defendant has supervisory control and authority over the work being done when the plaintiff is injured, there is no statutory agency conferring liability under the Labor Law” … .

Here, the plaintiff’s evidence failed to establish, prima facie, that Bright Way was an agent of the property owner or one of its contractors at the site. The evidence proffered by the plaintiff in support of his motion did not establish that Bright Way had been delegated the “duty to conform to the requirements of the Labor Law”… , that Bright Way “had the right to insist that proper safety practices were followed” at the construction site … , that Bright Way had “broad responsibility” to coordinate and supervise “all the work being performed on the job site” … , or that Bright Way had requested or been granted authority by the owner or contractor to supervise and control the work in the area where the accident occurred … . Yiming Zhou v 828 Hamilton, Inc., 2019 NY Slip Op 04752, Second Dept 6-12-19

 

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