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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

 

PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, A CABLE TRAY FELL ON HIS HEAD FROM THE TOP OF TWO LADDERS, A SUBCONTRACTOR WAS LIABLE BECAUSE THE CONTRACT DELEGATED THE AUTHORITY TO CONTROL THE WORK TO THE SUBCONTRACTOR, THE LESSEE WAS LIABLE AS AN “OWNER” WITHIN THE MEANING OF LABOR LAW 240 (1) (FIRST DEPT).

The First Department determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action was properly granted. A cable tray that was on top of two ladders fell on plaintiff’s head. The court further noted that USIS was liable as an agent of the owner because the subcontract delegated the authority to control the work to USIS, and AECOM. the lessee, was liable as an “owner” within the meaning of Labor Law 240 (1):

The cable tray that fell on plaintiff’s head from atop two ladders was an object that required securing to prevent it from falling … . The distance the tray fell was not de minimis and “the harm to plaintiff was the direct consequence of the application of the force of gravity” upon the unsecured cable tray … . Moreover, securing the cable tray against falling would not have been contrary to the purpose of the work … .

Supreme Court correctly concluded that USIS Systems was liable under Labor Law § 240(1) as an agent of the owner … . Here, the terms of the subcontract by which USIS Systems subcontracted the work to USIS Electric demonstrate that USIS Systems had been delegated authority to direct and control the work … . Moreover, as premises lessee which contracted for the work, AECOM was an owner within the meaning of Labor Law § 240(1) … . Tropea v Tishman Constr. Corp., 2019 NY Slip Op 03533, First Dept 5-7-19

 

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PLAINTIFF, WHO FELL THROUGH A HOLE IN A HOUSE UNDER CONSTRUCTION, WAS NOT ENGAGED IN CONSTRUCTION WORK COVERED BY LABOR 240 (1) OR 241 (6), PLAINTIFF WAS MEASURING WINDOWS FOR FUTURE INSTALLATION OF WINDOW TREATMENTS (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that plaintiff, who fell through a hole in a house under construction, was not engaged in an activity covered by Labor Law 240 (1) or 241 (6) when he fell. Plaintiff was measuring windows for future installation of window treatments, which is not construction work. There were questions of fact on the negligence and wrongful death causes of action however:

… [T]he work of measuring windows for the future installation of window treatments is not a protected activity under Labor Law § 240 (1). The work did not involve a “significant physical change to the configuration or composition of the building or structure” … , was not “performed in the context of the larger construction project” … , and was not “necessary and incidental to the construction of the home” … . …

The work being performed by decedent was not protected work under Labor Law § 241 (6) inasmuch as decedent ” was not involved with [any] construction’ “… , and the window treatment work was separate and “distinct from the construction work” … . Acox v Jeff Petroski & Sons, Inc., 2019 NY Slip Op 03480, Fourth Dept 5-3-19

 

FALL FROM A FOLDED, UNSECURED A-FRAME LADDER AFTER PLAINTIFF RECEIVED AN ELECTRIC SHOCK ENTITLED PLAINTIFF TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, SUPREME COURT REVERSED, TWO-JUSTICE DISSENT (FIRST DEPT). ​

The First Department, reversing Supreme Court, over a two-justice dissent, determined plaintiff, who fell from a folded, unsecured A-frame ladder after receiving an electric shock, was entitled to summary judgment on his Labor Law 240 (1) cause of action. The majority distinguished a Court of Appeals decision involving a properly opened and locked A-frame ladder which fell over when plaintiff was shocked:

The “safety device” provided to plaintiff was an unsecured and unsupported A-frame ladder that was inadequate to perform the assigned task. The ladder could not be opened or locked while plaintiff was performing his task, and the only way plaintiff could gain access to his work area on the ceiling at the end of the room was by folding up the ladder and leaning it against the wall. It is undisputed that the ladder was not anchored to the floor or wall. There were no other safety devices provided to plaintiff. Plaintiff’s expert opined that had the ladder been supported or secured to the floor or wall by anchoring, it would have remained stable when plaintiff was shocked. He further opined that given the nature of plaintiff’s work, which involved cutting pipes and the use of hand tools at an elevated height, plaintiff should have been furnished with a more stable device such as a Baker scaffold or a man lift. …

The fact that the fall was precipitated by an electric shock does not change this fact. This case is distinguishable from Nazario v 222 Broadway, LLC (28 NY3d 1054 [2016]), relied on by the dissent. The plaintiff in Nazario fell while “holding the ladder, which remained in an open locked position when it landed” … . Thus, there was no evidence that the ladder was defective or that another safety device was needed. Here, on the other hand, it is undisputed that the ladder provided was not fully open and locked, nor was it otherwise secured, as plaintiff’s expert opined it ought to have been. Cutaia v Board of Mgrs. of the Varick St. Condominium, 2019 NY Slip Op 03458, First Dept 5-1-19

 

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