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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

 

PLAINTIFF WAS INJURED USING A GRINDER WHICH DID NOT HAVE A SAFETY GUARD, THE LABOR LAW 241 (6) CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s Labor Law 241 (6) cause of action should not have been dismissed. Plaintiff was injured using a grinder that did not have a safety guard:

Industrial Code (12 NYCRR) § 23-1.5(c)(3), which provides that “[a]ll safety devices, safeguards and equipment in use shall be kept sound and operable, and shall be immediately repaired or restored or immediately removed from the job site if damaged,” applies to the instant action and is sufficiently specific to support a section 241(6) claim … . Here, plaintiff testified that he was given a hand-held grinder from which the safety guard had been removed by his employer to install an over-sized disc blade. Plaintiff was then instructed to use this grinder to cut concrete, over his objections, and was injured when the grinder got stuck, kicked back, knocked him to the ground, and cut into his foot. This testimony raises a triable issue of fact as to whether defendant breached its nondelegable duty “to provide reasonable and adequate protection and safety” to plaintiff … . Contreras v 3335 Decatur Ave. Corp., 2019 NY Slip Op 04663, First Dept 6-11-13

 

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PLAINTIFF WAS ENGAGED IN ROUTINE MAINTENANCE SO HIS FALL FROM A LADDER WAS NOT ACTIONABLE PURSUANT TO LABOR LAW 240 (1), A MUNICIPALITY’S MAINTENANCE OF LIGHT POLES IS A PROPRIETARY FUNCTION TO WHICH THE DOCTRINE OF IMMUNITY DOES NOT APPLY, THE MUNICIPALITY’S ‘LACK OF WRITTEN NOTICE’ DEFENSE COULD NOT BE RAISED FOR THE FIRST TIME ON APPEAL (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that plaintiff was engaged in routine maintenance when he was injured, which is not actionable pursuant to Labor Law 240 (1). The Third Department further determined that a municipality’s maintenance of light poles is a proprietary function subject to ordinary standards of negligence which is not protected by the doctrine of governmental immunity. The court further held that the “lack of written notice” defense was not a question of law which the municipality could raise for the first time on appeal. The plaintiff was repairing burned out lights which were on strands of decorative lights attached to a light pole. The strands of decorative lights were not fixtures within the meaning of the Labor Law:

… Merchants [a non-profit which had wrapped decorative lights around city light poles] hired plaintiff, as an independent contractor, to replace light strands located on 36 light poles because many of the light bulbs had become inoperable. Plaintiff was injured when he fell from a 16-foot aluminum-rung extension ladder when the pole that it was leaning on suddenly fell over. …

… [R]replacement of the light strands, which was necessary because numerous bulbs had burned out, constituted routine maintenance that is outside the protection of Labor Law § 240 (1) … . …

… [A]lthough replacement of a light fixture on a lighting pole is a repair within the protection of Labor Law § 240 (1) … , under the facts herein, the light strands cannot be considered a fixture. …

Although a municipality may enjoy qualified immunity from liability arising from highway planning and design decisions … , that doctrine does not shield a municipality from liability arising from negligent maintenance. Gutkaiss v Delaware Ave. Merchants Group, Inc., 2019 NY Slip Op 04527, Third Dept 6-6-19

 

LABOR LAW 200 CAUSE OF ACTION, PREMISED ON DEFENDANT’S AUTHORITY TO SUPERVISE OR CONTROL THE PERFORMANCE OF PLAINTIFF’S WORK, SHOULD NOT HAVE BEEN DISMISSED, LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION PROPERLY DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s Labor Law 200 cause of action should not have been dismissed. Plaintiff was injured when he was attempting to move a light fixture. He was cutting sheetrock in the ceiling with an allegedly improper electric saw when it kicked back and injured him. The Labor Law 240 and 231 causes of action were properly dismissed because an elevation-related hazard was not alleged, nor was an Industrial Code violation:

“Where a plaintiff’s claims implicate the means and methods of the work, an owner or contractor will not be held liable under Labor Law § 200 unless it had the authority to supervise or control the performance of the work. General supervisory authority to oversee the progress of the work is insufficient to impose liability. A defendant has the authority to control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed” … .

Here, as supplemented by the plaintiff’s affidavit, the complaint states cognizable causes of action pursuant to Labor Law § 200 and to recover damages for common-law negligence. The plaintiff averred that on the day of the accident, Rapaport [the construction manager] , whom he knew as the “contractor,” directed the plaintiff to move an overhead light from one place in the ceiling to another and told him to use an electrical saw to cut the sheetrock in the ceiling. These allegations are sufficient to support the statutory and common-law negligence claims against the moving defendants, and the moving defendants’ documentary evidence does not utterly refute these allegations … . Soller v Dahan, 2019 NY Slip Op 04441, Second Dept 6-5-19

 

INDUSTRIAL CODE PROVISION WHICH REFERRED TO THE REQUIREMENT THAT A ‘DESIGNATED PERSON’ OPERATE A POWER BUGGY IS SPECIFIC ENOUGH TO SUPPORT A LABOR LAW 241 (6) CLAIM, PLAINTIFF WAS STRUCK BY A POWER BUGGY OPERATED BY SOMEONE WHO WAS NOT A ‘DESIGNATED PERSON’ (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, over a two-justice dissent, determined that an Industrial Code provision requiring that a power buggy be operated by a “designated person” was specific enough to support a Labor Law 241 (6) claim. Plaintiff was injured when he was struck in the back by a power buggy operated by someone who was horsing around and fell off the buggy before it struck plaintiff. The First Department searched the record and awarded summary judgment to the plaintiff:

We agree with the dissent that the regulation’s requirement that a “trained and competent operator . . . shall” operate the power buggy is general, as it lacks a specific requirement or standard of conduct. However, since the term “designated person” has been held to be specific, 12 NYCRR 23-9.9(a) is a proper predicate for a claim under Labor Law § 241(6).

The dissent’s concern that we are exposing a defendant to liability for injury caused by a power buggy operated by an unauthorized person is misplaced … . We note that the Court of Appeals has reiterated that, while the duty imposed by Labor Law § 241(6) may be “onerous[,] . . . it is one the Legislature quite reasonably deemed necessary by reason of the exceptional dangers inherent in connection with constructing or demolishing buildings or doing any excavating in connection therewith'” … , and that “[t]he Industrial Code should be sensibly interpreted and applied to effectuate its purpose of protecting construction laborers against hazards in the workplace” … .

Moreover, liability under Labor Law § 241(6) “is dependent on the application of a specific Industrial Code provision and a finding that the violation of the provision was a result of negligence” … .

The fact that the operating engineer was “horse playing” prior to operating the power buggy does not absolve defendant from liability under Labor Law § 241(6) … . ​Toussaint v Port Auth. of N.Y. & N.J., 2019 NY Slip Op 04302, First Dept 5-30-19

 

PLAINTIFF FELL FROM A SCAFFOLD WHICH HAD NO RAILINGS, PLAINTIFF DID NOT NEED TO DEMONSTRATE THE SCAFFOLD WAS DEFECTIVE, PLAINTIFF PROPERLY GRANTED SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT).

The First Department determined plaintiff’s motion for summary judgment in this Labor Law 240 (1) scaffold-fall case was properly granted. The scaffold had not railings and plaintiff fell when the scaffold tipped because one of its wheels went through the floor. The court noted that plaintiff was not required to show that the scaffold was defective:

It is undisputed that the scaffold he was supplied with and directed to use lacked railings, and that he fell off when the scaffold tipped as one wheel broke through the floor on which it was standing. Plaintiff was not provided with any other safety devices. This evidence establishes prima facie a violation of Labor Law § 240(1) … . Plaintiff was not required to show that the scaffold was defective … . Martinez-Gonzalez v 56 W. 75th St., LLC, 2019 NY Slip Op 04111, First Dept 5-28-19

 

PLAINTIFF INJURED HIS NECK ATTEMPTING TO THROW A HEAVY HOSE TO AN AREA 15 TO 20 FEET ABOVE HIM, THE INJURY WAS NOT CAUSED BY AN ELEVATION-RELATED RISK COVERED BY LABOR LAW 240 (1) (SECOND DEPT).

The Second Department determined defendants’ motion for summary judgment on the Labor Law 240 (1) cause of action was properly granted. Plaintiff injured his neck attempting to throw a hose to an area 15 to 20 feet above him:

Labor Law § 240(1) imposes strict liability on building owners and contractors for failure to provide proper protection against elevation-related hazards … . At the time that the plaintiff was injured, he was standing on the ground level, moving a 100-pound hose. Although the accident tangentially involved elevation, it was not caused by any elevation-related risk contemplated by the statute … . Clark v FC Yonkers Assoc., LLC, 2019 NY Slip Op 03948, Second Dept 5-22-10

 

BROWN PAPER ON TOP OF GREEN DUST ALLEGEDLY CONSTITUTED A SLIPPERY CONDITION ON THE FLOOR CAUSING PLAINTIFF’S SLIP AND FALL, PLAINTIFF’S LABOR LAW 241 (6) AND 200 CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT). ​

The First Department determined plaintiff’s Labor Law 241 (6) and 200 causes of action should not have been dismissed. Plaintiff alleged brown paper on top of green dust (used to keep down dust) created a dangerous slippery condition which caused his slip and fall:

The motion court improperly dismissed plaintiff’s Labor Law § 241(6) claim predicated on Industrial Code (12 NYCRR) § 23-1.7(d). The alleged presence of green dust on the floor created a triable issue as to whether a “foreign substance” created a slippery condition on the floor, in violation of this Code section, and whether such condition caused plaintiff’s accident … .

Plaintiff’s Labor Law § 200 and common-law negligence claims should similarly be reinstated as the court should not have analyzed plaintiff’s accident under the manner and means standard, but should instead have applied the dangerous condition standard … . The green dust was a dangerous condition that existed prior to plaintiff’s arrival at the job site it was not part of the work plaintiff was performing … . As such, there are triable issues of fact as to whether the general contractor … had notice of the hazardous condition of the floor … . In addition, the owner … failed to demonstrate the absence of actual or constructive notice of the hazardous condition on its part, since it failed to point to any probative evidence on this issue … . DeMercurio v 605 W. 42nd Owner LLC, 2019 NY Slip Op 03550 First Dept 5-7-19

 

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