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CONFLICTING EVIDENCE WHETHER THE PLYWOOD WHICH FLEXED CAUSING PLAINTIFF TO FALL WAS OVER A THREE-FOOT DEEP HOLE OR TRENCH; LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court determined the Labor Law 240 (1) and 241 (6) causes of action should not have been dismissed. There was conflicting evidence whether the plywood which flexed causing plaintiff to fall was over a three-foot deep hole or trench:

… [T]here was conflicting deposition testimony regarding whether the plywood was, under the circumstances, the functional equivalent of a scaffold meant to prevent the plaintiff from falling into a three-foot-deep hole or trench … . …

… [T]he regulation which plaintiff alleges was violated concerns structural runways, ramps, and platforms (see 12 NYCRR 23-1.22[b]), which is a regulation that sets forth specific standards of conduct sufficient to support a Labor Law § 241(6) cause of action … . Similar to the plaintiff’s Labor Law § 240(1) cause of action, the conflicting deposition testimony … raised a triable issue of fact as to whether there was insufficient bracing under the plywood … . Davies v Simon Prop. Group, Inc., 2019 NY Slip Op 05955, Fourth Dept 7-31-19

 

CONFLICTING TESTIMONY ABOUT WHETHER A CO-WORKER WAS HOLDING THE LADDER PLAINTIFF WAS USING PRECLUDED SUMMARY JUDGMENT IN THIS LABOR LAW 240 (1) ACTION (SECOND DEPT).

The Second Department determined conflicting testimony concerning whether the ladder plaintiff was using was being held by a co-worker raised a question of fact in this Labor Law 240 (1) action:

… [T]he plaintiff submitted, among other things, a transcript of his deposition testimony and a transcript of a workers’ compensation board hearing, which included the testimony of the plaintiff and his coworker. The plaintiff testified at his deposition and at the hearing that the ladder shifted, causing him to lose his footing, and that nobody was holding the ladder at the time of the accident. His coworker gave a different account. The coworker testified that he was standing at the bottom of the ladder, holding it, when he felt the ladder jolt. Whether the ladder was being stabilized at the time of the accident presents a triable issue of fact … . Accordingly, “the plaintiff’s own submissions demonstrated that there are triable issues of fact as to how this accident occurred and it cannot be concluded, as a matter of law, that the alleged failure to provide the plaintiff with proper protection proximately caused his injuries” … . Lozada v St. Patrick’s R C Church, 2019 NY Slip Op 05971, Second Dept 7-31-19

 

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DEFENDANT, AN OUT OF POSSESSION LESSEE, WAS NOT AN ‘OWNER’ WITHIN THE MEANING OF LABOR LAW 240 (1) OR 241 (6) AND WAS THEREFORE ENTITLED TO SUMMARY JUDGMENT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined defendant M & M was not a property owner in the context of Labor Law 240 (1) or 241 (6) and therefore was entitled to summary judgment. The Fourth Department noted that an issue on which Supreme Court reserved decision is not appealable:

For purposes of Labor Law §§ 240 (1) and 241 (6) liability, “the term owner’ is not limited to the titleholder of the property where the accident occurred and encompasses a [party] who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for [its] benefit’ ” … . ” [The owner] is the party who, as a practical matter, has the right to hire or fire subcontractors and to insist that proper safety practices are followed’ ” … . “The key factor in determining whether a non-titleholder is an owner’ is the right to insist that proper safety practices were followed and it is the right to control the work that is significant, not the actual exercise or nonexercise of control’ ” … .

Here, M and M met its initial burden of establishing that it was not an owner for purposes of Labor Law §§ 240 (1) and 241 (6) because its submissions established that “it was an out-of-possession lessee of the property [that] neither contracted for nor supervised the work that brought about the injury, and had no authority to exercise any control over the specific work area that gave rise to plaintiff’s injuries’ ” … . Thompson v M & M Forwarding of Buffalo, N.Y., Inc., 2019 NY Slip Op 05875, Fourth Dept 7-31-19

 

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

 

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