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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

 

QUESTIONS OF FACT WHETHER DEFENDANT WAS A GENERAL CONTRACTOR AND WHETHER DEFENDANT HAD SUPERVISORY AUTHORITY OVER SAFETY CONDITIONS IN THIS LABOR LAW 240 (1) LADDER-FALL CASE (FIRST DEPT).

The First Department determined plaintiff’s motion for summary judgment in this Labor Law 240 (1) ladder-fall action was properly denied as against the alleged genera contractor, Edler. There was a question of fact whether Edler was a general contractor and whether Edler had the authority to supervise safety conditions:

To be found a “general contractor” for purposes of establishing liability pursuant to Labor Law § 240(1), plaintiffs must show that Edler had the ability to control the activity bringing about the injury and the authority to correct unsafe conditions … . Here, plaintiffs failed to establish, as a matter of law, that Edler had the ability to control [plaintiff’s employer’s] work at the premises or stop the work. The record reflects that although Edler was hired to “supervise” the project, Edler did not hire, retain or pay any of the contractors working at the premises … . Moreover, the homeowner testified that he “assume[d]” that Edler had safety responsibilities and that it was his understanding that Edler had the authority to stop work on the job site if an unsafe condition arose. However, Edler’s principal denies that he had the authority to stop the work at the premises, and the agreement between Edler and the homeowner does not specifically confer upon Edler the authority to stop the work if an unsafe condition was observed … . Rather, it provides that part of Edler’s “site supervision” responsibilities included supervising “day to day operations” of the site and trade. An issue of fact remains as to whether this includes supervision of the safety conditions. Uzeyiroglu v Edler Estate Care Inc., 2019 NY Slip Op 03285, First Dept 4-30-19

 

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PLAINTIFF DID NOT SUBMIT EVIDENCE SUFFICIENT TO PIERCE THE CORPORATE VEIL AND HOLD A MEMBER OF DEFENDANT LLC PERSONALLY LIABLE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AGAINST THE LLC MEMBER PERSONALLY SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the motion for summary judgment in this construction accident case against a member of defendant LLC should not have been granted. The motion papers did not support piercing the corporate veil to reach the LLC member (Albaliya) personally:

As a limited liability company, Nadlan is a separate legal entity from its members (see Limited Liability Company Law § 609). “A member of a limited liability company cannot be held liable for the company’s obligations by virtue of his [or her] status as a member thereof'” … .

“However, a party may seek to hold a member of an LLC individually liable despite this statutory proscription by application of the doctrine of piercing the corporate veil” … . “Generally, . . . piercing the corporate veil requires a showing that: (1) the owners exercised complete domination of the corporation in respect to the transaction attacked; and (2) that such domination was used to commit a fraud or wrong against the plaintiff which resulted in plaintiff’s injury” … . Singh v Nadlan, LLC, 2019 NY Slip Op 03100, Second Dept 4-24-19

 

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ALTHOUGH CLAIMANT WAS INJURED WHEN METAL POLES BEING HOISTED BY A CRANE SLIPPED OUT OF A CHOKER AND STRUCK HIM, CLAIMANT DID NOT SUBMIT EXPERT OPINION EVIDENCE RE: THE CAUSE AND DID NOT ELIMINATE QUESTIONS OF FACT RE: WHETHER HIS CONDUCT IN SECURING THE POLES WAS THE SOLE PROXIMATE CAUSE, CLAIMANT’S MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 240 (1) ACTION PROPERLY DENIED (SECOND DEPT).

The Second Department determined claimant was not entitled to summary judgment on his Labor Law 240 (1) cause of action. Claimant had secured metal posts with a choker. When the posts were lifted by a crane, they slipped out of the choker and struck claimant, cause traumatic brain injury. Claimant did not submit any expert opinion evidence. Defendant alleged claimant’s conduct was the sole proximate cause of the accident:

To prevail on a motion for summary judgment in a Labor Law § 240(1) “falling object” case, the claimant must demonstrate that, at the time the object fell, it either was being hoisted or secured, or required securing for the purposes of the undertaking …. Labor Law § 240(1) “does not automatically apply simply because an object fell and injured a worker; [a] plaintiff must show that the object fell . . . because of the absence or inadequacy of a safety device of the kind enumerated in the statute'” … .

Here, the claimants failed to establish their prima facie entitlement to judgment as a matter of law. The evidence submitted by the claimants was insufficient to establish that the posts fell due to the absence or inadequacy of an enumerated safety device, and the claimants further failed to eliminate all triable issues of fact as to whether the claimant’s conduct was the sole proximate cause of the accident … . Houston v State of New York, 2019 NY Slip Op 03032, Second Dept 4-24-19

 

PLAINTIFF WAS ENGAGED IN ROUTINE MAINTENANCE, NOT REPAIR, WHEN HE FELL FROM AN ELEVATED FORKLIFT, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 240 (1) ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff injured engaging in routine maintenance of an HVAC unit, not repair. Therefore defendant’s motion for summary judgment in this Labor Law 240 (1) action should have been granted. Plaintiff fell from a forklift which was used to lift him up to HVAC unit in the ceiling:

“In determining whether a particular activity constitutes repairing,’ courts are careful to distinguish between repairs and routine maintenance, the latter falling outside the scope of section 240(1)” … . “Generally, courts have held that work constitutes routine maintenance where the work involves replacing components that require replacement in the course of normal wear and tear'” … . …

At his deposition, the plaintiff testified that before the accident occurred, he determined that a belt was missing from the heating unit. Then, according to the plaintiff, while he was in the process of lowering a panel to see whether the pilot light to the heating unit was on or off, he slipped and fell. The plaintiff testified that, based on his experience, there was nothing extraordinary or unusual about a belt needing to be replaced or a pilot light going out on a heating unit. … [The] evidence showed that the plaintiff’s work “involved replacing components that require replacement in the course of normal wear and tear” and did not constitute “repairing” or any other enumerated activity … . Dahlia v S&K Distrib., LLC, 2019 NY Slip Op 03023, Second Dept 4-24-19

 

FALL FROM A LADDER WHICH WAS NOT SECURED, AND WHICH SHOOK AND THEN KICKED OUT FROM UNDER PLAINTIFF, ENTITLED PLAINTIFF TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action in this ladder-fall case should have been granted:

“Although [a] fall from a ladder, by itself, is not sufficient to impose liability under Labor Law § 240(1),’ liability will be imposed when the evidence shows that the subject ladder was . . . inadequately secured and that . . . the failure to secure the ladder was a substantial factor in causing the plaintiff’s injuries'” … .  Here, the plaintiff established, prima facie, that Labor Law § 240(1) was violated and that the violation was a proximate cause of his injuries … . Through his deposition testimony, the plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the issue of liability under that statute when he testified that a carpentry foreman directed him to retrieve the subject ladder, which the plaintiff ascended without a spotter, and which shifted and shook before the bottom “kicked out,” causing him to fall  … . DeSerio v City of New York, 2019 NY Slip Op 02679, Second Dept 4-10-19

 

PLAINTIFF WAS NOT ABLE TO DEMONSTRATE DEFENDANTS-HOMEOWNERS DIRECTED HIM TO REMOVE HIS BOOTS WHILE WORKING, PLAINTIFF SLIPPED AND FELL ON STAIRS BECAUSE HE WAS WEARING ONLY SOCKS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 200 CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants-homeowners’ motion for summary judgment should have been granted in this Labor Law 200 action. Someone told plaintiff to take off his boots while working in the home and he slipped and fell on the stairs. Plaintiff did not demonstrate that it was the defendants who told him to remove his boots:

Plaintiff claims that he was injured after slipping and falling on slippery stairs because he was directed to remove his boots while working. Defendants established prima facie that they did not exercise supervisory control over the means and methods of plaintiff’s work … . Their principals, the homeowners, testified that they were not home on the day of the accident and that they never asked any workers to remove their boots. In opposition, plaintiff failed to raise an issue of fact as to whether the man from whom he received the instruction to remove his boots had apparent authority to direct his work … . Plaintiff was unable to identify the man, the man’s employer, or the man’s relationship to the homeowners. Moreover, plaintiff testified that at first he refused to take his boots off. Plaintiff called his supervisor who warned him that if he did not remove his boots he would be fired. As such, plaintiff’s supervisor gave the ultimate direction to remove his boots, which establishes that the employer exercised supervisory control over the injury-producing work.

The record also shows that the stairs were not in a dangerous condition … . Plaintiff himself testified that there were no observable defects on the stairs, that they were not wet, and that they were free of chips and cracks. He admitted that he slipped solely because he was wearing socks with no boots … . Antonio v West 70th Owners Corp., 2019 NY Slip Op 02626, First Dept 4-4-19

 

UNLOADING STEEL PLATES USED TO COVER EXCAVATED AREAS AT A CONSTRUCTION SITE WAS A COVERED ACTIVITY UNDER LABOR LAW 240 (1) (FIRST DEPT).

The First Department determined plaintiff was properly awarded summary judgment on his Labor Law 240 (1) cause of action. Plaintiff was injured unloading a two-ton steel plate used to cover excavated areas at a construction site. The defendant’s argument that the plate was not unloaded for construction work. but rather for storage, was rejected:

Plaintiff made a prima facie showing that the work he was performing as an employee of Clean at the time of his accident was covered under section 240(1). There is no dispute that plaintiff was injured in the course of unloading an approximately two-ton steel plate at a construction site owned by defendant Con Ed, after transporting the plate to the site by truck. Witnesses consistently indicated that Clean routinely unloaded steel plates at the site for the purpose of covering areas excavated for electrical work. Clean performed this work pursuant to a contract that required it to provide steel plates at excavation sites owned by defendant including the subject site, and also required Clean to perform work ancillary to other tasks enumerated under Labor Law § 240(1) such as removing construction-related debris and installing barricades for excavation work … . Moreover, plaintiff performed this work on an active construction site while another worker on the site was building a removable roof for a transformer vault.

Clean failed to raise triable issues of fact as to whether plaintiff’s work was covered by Labor Law § 240(1). It does not avail Clean to assert that plaintiff unloaded the plate merely for the purpose of storage. The Court of Appeals has rejected an interpretation of Labor Law § 240(1) that “would compartmentalize a plaintiff’s activity and exclude from the statute’s coverage preparatory work essential to the enumerated act” … . Saquicaray v Consolidated Edison Co. of N.Y., Inc., 2019 NY Slip Op 02460, First Dept 4-2-19

 

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