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DEFENDANTS DID NOT EXERCISE SUPERVISORY CONTROL OVER THE MEANS AND MANNER OF PLAINTIFF’S WORK. LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION PROPERLY DISMISSED (FOURTH DEPT).

The Fourth Department determined the Labor Law 200 and common law negligence causes of action were properly dismissed because the plaintiff’s injuries resulted from the means and manner of work and defendants did not exercise supervisory control  over plaintiff’s work:

“It is settled law that where the alleged defect or dangerous condition arises from the contractor’s methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under section 200 of the Labor Law”… . “Defendants moving for summary judgment on Labor Law § 200 and common-law negligence causes of action may thus show their entitlement to summary judgment by establishing that plaintiff’s accident resulted from the manner in which the work was performed, not from any dangerous condition on the premises, and [that] defendants exercised no supervisory control over the work’ “… . Here, defendants established that the wires hanging above the roof of the garage did not, as alleged by plaintiff, constitute a “tripping and walking hazard” along an area of the property leading to the work site; instead, the alleged defect arose from plaintiff’s method of performing the work by foregoing appropriate, authorized means of obtaining access to the utility pole and deciding to traverse the pitched roof of the garage over which the wires hung … . Inasmuch as defendants exercised no supervisory control over the injury-producing work, defendants established their entitlement to summary judgment dismissing the section 200 and common-law negligence causes of action … . Anderson v National Grid USA Serv. Co., 2018 NY Slip Op 07572, Fourth Dept 11-9-18

LABOR LAW-CONSTRUCTION LAW (DEFENDANTS DID NOT EXERCISE SUPERVISORY CONTROL OVER THE MEANS AND MANNER OF PLAINTIFF’S WORK. LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION PROPERLY DISMISSED (FOURTH DEPT))

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MOTION SEEKING SUMMARY JUDGMENT ON THE LABOR LAW 241 (6) CAUSE OF ACTION ON ONE GROUND DID NOT JUSTIFY, SUA SPONTE, SEARCHING THE RECORD AND GRANTING SUMMARY JUDGMENT ON A GROUND NOT RAISED IN THE MOTION PAPERS (FOURTH DEPT).

he Fourth Department, reversing (modifying Supreme Court), determined a motion seeking summary judgment on the Labor Law 241 (6) cause of action should not have been granted on a ground not raised in the motion. Defendants alleged the Labor Law 241 (6) cause of action should be dismissed because plaintiff was the sole proximate cause of his injuries. The judge, sua sponte, searched the record and granted summary judgment on a different ground:

… [T]he court erred in searching the record and granting summary judgment to plaintiff on his Labor Law § 241 (6) cause of action, and we therefore modify the order accordingly. Contrary to plaintiff’s assertion, although defendants did not advance their contention before the trial court, we conclude that the contention is properly before us because defendants lacked an opportunity to raise it at any time before this appeal … . Further, ” [a] motion for summary judgment on one claim or defense does not provide a basis for searching the record and granting summary judgment on an unrelated claim or defense’ ” … . Here, the only issue raised with respect to the Labor Law § 241 (6) cause of action was on defendants’ motion, wherein they asserted that dismissal was warranted on the ground that plaintiff was the sole proximate cause of his injuries. The court therefore erred in granting summary judgment to plaintiff based on alleged violations of 12 NYCRR 23-1.7 (b) (1) (c) and 23-3.3 (c). Lord v Whelan & Curry Constr. Servs., Inc., 2018 NY Slip Op 07563, Fourth Dept 11-9-18

CIVIL PROCEDURE (LABOR LAW-CONSTRUCTION LAW, MOTION SEEKING SUMMARY JUDGMENT ON THE LABOR LAW 241 (6) CAUSE OF ACTION ON ONE GROUND DID NOT JUSTIFY, SUA SPONTE, SEARCHING THE RECORD AND GRANTING SUMMARY JUDGMENT ON A GROUND NOT RAISED IN THE MOTION PAPERS (FOURTH DEPT))/LABOR LAW-CONSTRUCTION LAW (CIVIL PROCEDURE, MOTION SEEKING SUMMARY JUDGMENT ON THE LABOR LAW 241 (6) CAUSE OF ACTION ON ONE GROUND DID NOT JUSTIFY, SUA SPONTE, SEARCHING THE RECORD AND GRANTING SUMMARY JUDGMENT ON A GROUND NOT RAISED IN THE MOTION PAPERS (FOURTH DEPT))/JUDGES   (CIVIL PROCEDURE, MOTION SEEKING SUMMARY JUDGMENT ON THE LABOR LAW 241 (6) CAUSE OF ACTION ON ONE GROUND DID NOT JUSTIFY, SUA SPONTE, SEARCHING THE RECORD AND GRANTING SUMMARY JUDGMENT ON A GROUND NOT RAISED IN THE MOTION PAPERS (FOURTH DEPT))/SUA SPONTE LABOR LAW-CONSTRUCTION LAW, MOTION SEEKING SUMMARY JUDGMENT ON THE LABOR LAW 241 (6) CAUSE OF ACTION ON ONE GROUND DID NOT JUSTIFY, SUA SPONTE, SEARCHING THE RECORD AND GRANTING SUMMARY JUDGMENT ON A GROUND NOT RAISED IN THE MOTION PAPERS (FOURTH DEPT))

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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, ARGUMENT IN PLAINTIFF’S REPLY PAPERS SHOULD HAVE BEEN CONSIDERED (FIRST DEPT). ​

The First Department determined plaintiff’s motion for summary judgment on his Labor Law 240(1) cause of action should have been granted, noting that plaintiff’s argument in the reply papers should have been considered because it was a response to defendants’ opposition motion:

Plaintiff was injured when a metal shim plate affixed to a steel column, that was being installed as part of a temporary truss system, suddenly detached and hit him in the head. Plaintiff established that the accident was proximately caused by the undisputed failure of safety devices that were supposed to afford proper protection against the elevation-related risks that plaintiff faced during the installation of the column being hoisted into place … . The tack welds used to secure the metal shim plate to the column were “safety devices” for the purposes of Labor Law § 240(1) because they were intended to be a temporary measure to keep the shim plate attached to the column during installation … . The welds were to be removed once the column was in place, at which time the plates would be permanently bolted into place. The evidence established that the accident occurred when the welds failed, inasmuch as the shim plate, which weighed between 200 and 400 pounds, was welded on only one side of the metal column … . Thus, the shim plate “fell because of the inadequacy of a safety device. . .[that was] put in place as to give proper protection for” plaintiff, entitling him to partial summary judgment … .

The motion court should have considered plaintiff’s reply argument that the one-sided tack welds were insufficient to safely secure the shim plate to the column because it was made in response to defendants’ opposition to the motion … . Keerdoja v Legacy Yards Tenant, LLC, 2018 NY Slip Op 07537, First Dept 11-8-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, ARGUMENT IN PLAINTIFF’S REPLY PAPERS SHOULD HAVE BEEN CONSIDERED (SECOND DEPT))/CIVIL PROCEDURE (REPLY PAPERS, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, ARGUMENT IN PLAINTIFF’S REPLY PAPERS SHOULD HAVE BEEN CONSIDERED (SECOND DEPT))/REPLY (PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, ARGUMENT IN PLAINTIFF’S REPLY PAPERS SHOULD HAVE BEEN CONSIDERED (SECOND DEPT))

PLAINTIFF WAS NOT INVOLVED IN CONSTRUCTION WORK WHEN HE FELL, LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DISMISSED (SECOND DEPT). ​

The Second Department determined defendant’s summary judgment motion on the Labor Law 240(1) cause of action was properly granted. Although plaintiff fell when attempting to replace light bulbs in a strobe light on top of a van, he was not involved in construction work:

Labor Law § 240(1) “does not cover routine maintenance done outside the context of construction work” … . The replacement of “components that require replacement in the course of normal wear and tear” constitutes routine maintenance … . At the time of his fall, the plaintiff was engaged in the task of replacing burnt out light bulbs, which constitutes routine maintenance and therefore falls outside of the scope of Labor Law § 240(1) … . Contrary to the plaintiff’s contention, his work did not take place in the context of a larger project which “encompassed activity protected under the statute … . Trotman v Verizon Communications, Inc., 2018 NY Slip Op 07483, Second Dept 11-7-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF WAS NOT INVOLVED IN CONSTRUCTION WORK WHEN HE FELL, LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DISMISSED (SECOND DEPT))

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LABOR LAW 200 CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE DEFENDANT GENERAL CONTRACTOR DID NOT EXERCISE SUPERVISORY CONTROL OVER THE MANNER OF PLAINTIFF’S WORK, SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, DISMISSED CROSS CLAIMS BECAUSE THAT RELIEF WAS NOT REQUESTED, PLAINTIFF’S EMPLOYER WAS NOT ENTITLED TO PROTECTION FROM SUIT UNDER THE WORKERS’ COMPENSATION LAW BECAUSE IT DID NOT MAINTAIN A WORKERS’ COMPENSATION POLICY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, in a comprehensive decision, over a comprehensive dissent, determined that the general contractor, Ultimate, was not liable under Labor Law 200 for plaintiff’s fall through an opening in planks and plywood covering a stairwell opening because the accident was attributable to the manner of the work and Ultimate did not exercise any supervisory control over the installation of drywall by the plaintiff. The dissent argued that there was a question of fact whether the opening in the stairwell covering was a dangerous condition of which Ultimate had notice, which is also a ground for liability under Labor Law 200. The Second Department noted that the court should not have sua sponte dismissed Ultimate’s cross claims against the drywall company (Fortin) because such relief was not requested. The Second Department further noted that Fortin was not entitled to protection from plaintiff’s suit under the Workers’ Compensation Law on the ground that plaintiff was Fortin’s employee because Fortin did not maintain a Workers’ Compensation policy:

“Labor Law § 200(1) is a codification of the common-law duty of an owner or general contractor to provide workers with a safe place to work”… . “Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed” … . Where “a claim arises out of alleged defects or dangers arising from a subcontractor’s methods or materials, recovery against the owner or general contractor cannot be had unless it is shown that the party to be charged exercised some supervisory control over the operation” … . “A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed” … . “[M]ere general supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability under Labor Law § 200” … . …

… Ultimate established, … that the accident arose from the method and manner in which the plaintiff and Jean-Guy Fortin covered the stairwell opening … . …

The Supreme Court should not have, in effect, sua sponte, directed dismissal of Ultimate’s cross claims against Fortin for common-law indemnification and contribution, which relief Fortin did not request in its motion papers… . Moreover, the Supreme Court should have granted that branch of Ultimate’s motion which was for summary judgment on its cross claim against Fortin for common-law indemnification. Contrary to Fortin’s contention, Ultimate’s cross claims are not barred by Workers’ Compensation Law § 11. … Ultimate established that Fortin did not procure workers’ compensation on behalf of the plaintiff … . Therefore, Fortin is not entitled to the benefit of the workers’ compensation bar. Poulin v Ultimate Homes, Inc., 2018 NY Slip Op 07468, Second Dept 11-7-18

LABOR LAW-CONSTRUCTION LAW (LABOR LAW 200 CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE DEFENDANT GENERAL CONTRACTOR DID NOT EXERCISE SUPERVISORY CONTROL OVER THE MANNER OF PLAINTIFF’S WORK, SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, DISMISSED CROSS CLAIMS BECAUSE THAT RELIEF WAS NOT REQUESTED, PLAINTIFF’S EMPLOYER WAS NOT ENTITLED TO PROTECTION FROM SUIT UNDER THE WORKERS’ COMPENSATION LAW BECAUSE IT DID NOT MAINTAIN A WORKERS’ COMPENSATION POLICY (SECOND DEPT))/CIVIL PROCEDURE (SUA SPONTE, LABOR LAW 200 CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE DEFENDANT GENERAL CONTRACTOR DID NOT EXERCISE SUPERVISORY CONTROL OVER THE MANNER OF PLAINTIFF’S WORK, SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, DISMISSED CROSS CLAIMS BECAUSE THAT RELIEF WAS NOT REQUESTED, PLAINTIFF’S EMPLOYER WAS NOT ENTITLED TO PROTECTION FROM SUIT UNDER THE WORKERS’ COMPENSATION LAW BECAUSE IT DID NOT MAINTAIN A WORKERS’ COMPENSATION POLICY (SECOND DEPT))/JUDGES (SUA SPONTE, LABOR LAW 200 CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE DEFENDANT GENERAL CONTRACTOR DID NOT EXERCISE SUPERVISORY CONTROL OVER THE MANNER OF PLAINTIFF’S WORK, SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, DISMISSED CROSS CLAIMS BECAUSE THAT RELIEF WAS NOT REQUESTED, PLAINTIFF’S EMPLOYER WAS NOT ENTITLED TO PROTECTION FROM SUIT UNDER THE WORKERS’ COMPENSATION LAW BECAUSE IT DID NOT MAINTAIN A WORKERS’ COMPENSATION POLICY (SECOND DEPT))/WORKERS’ COMPENSATION (LABOR LAW-CONSTRUCTION LAW, LABOR LAW 200 CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE DEFENDANT GENERAL CONTRACTOR DID NOT EXERCISE SUPERVISORY CONTROL OVER THE MANNER OF PLAINTIFF’S WORK, SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, DISMISSED CROSS CLAIMS BECAUSE THAT RELIEF WAS NOT REQUESTED, PLAINTIFF’S EMPLOYER WAS NOT ENTITLED TO PROTECTION FROM SUIT UNDER THE WORKERS’ COMPENSATION LAW BECAUSE IT DID NOT MAINTAIN A WORKERS’ COMPENSATION POLICY (SECOND DEPT)

PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION DESPITE FALLING FROM AN UNSAFE MAKESHIFT PLATFORM MADE BY THE PLAINTIFF (THIRD DEPT).

The Third Department determined plaintiff was entitled to summary judgment in his Labor Law 240 (1) action result from a fall from an unsafe makeshift platform made by the plaintiff. Plaintiff alleged the lift with which he was provided could not be used and no other safety equipment was provided:

Defendant is a property owner subject to the statute and he provided no equipment to plaintiff aside from agreeing to rent a lift for plaintiff’s use. Plaintiff, at the time of his injury, was installing siding above a staircase running along the side of the building. He averred that the lift would not fit in the area, he was not provided with a traditional scaffold and he could not have used a “ladder jack” scaffold in the area due to both the equipment being in use elsewhere and the location of the staircase. Plaintiff accordingly fashioned a work platform from his A-frame ladder and a scaffolding plank known as a pick, running the pick between a rung of the ladder and the top landing of the staircase. The pick and ladder were not anchored to the ground or the wall, and plaintiff gave deposition testimony stating that he fell several feet when the contraption slid out from beneath him as he was pushing the new siding into place. An engineer retained by plaintiff opined that the unsecured makeshift platform was unsafe and that defendant violated Labor Law § 240 (1) by failing to furnish adequate safety equipment, such as a proper scaffold and a safety harness, that would have shielded plaintiff from injury. The foregoing was sufficient to “establish[] a prima facie showing of a statutory violation which was a proximate cause of plaintiff’s injuries, [shifting the burden] to defendant to submit evidentiary facts which would raise a factual issue on liability” … . …

Defendant responded by arguing that inconsistencies in plaintiff’s account over time raised a material question of fact as to how the accident occurred. * * * [The] variations did not suggest “that plaintiff’s fall and injuries were caused by anything other than the unsecured [pick and] ladder or that plaintiff’s own conduct was the sole proximate cause of the accident[.]” Cooper v Delliveneri, 2018 NY Slip Op 07396, Third Dept 11-1-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION DESPITE FALLING FROM AN UNSAFE MAKESHIFT PLATFORM MADE BY THE PLAINTIFF (THIRD DEPT))

STACKED SHEETROCK DID NOT PRESENT AN ELEVATION RELATED HAZARD AND DID NOT BLOCK A PASSAGEWAY, DEFENDANTS DID NOT EXERCISE CONTROL OVER THE STACKING OF THE SHEETROCK, LABOR LAW 240 (1), 241 (6), 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION PROPERLY DISMISSED (THIRD DEPT).

The Third Department determined the Labor Law 240 (1), 246 )1) and 200 causes of action were properly dismissed. The sheetrock which allegedly fell and struck plaintiff’s ankle was not an elevation-related hazard, did not block a passageway, and the defendants had not unloaded or stacked the sheetrock and did not exercise sufficient supervisory control to be liable in negligence:

The mere fact that a plaintiff was struck by an object that fell does not, by itself, give rise to liability under the statute … . Rather, a plaintiff must establish that “the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute” … . That said, “where a plaintiff was exposed to the usual and ordinary dangers of a construction site, and not the extraordinary elevation risks envisioned by Labor Law § 240 (1), the plaintiff cannot recover under the statute” … . …

The record indicates … that the sheetrock was stacked on its long side on the ground before it fell and that plaintiff was on the same level as the sheetrock. …

Regarding plaintiff’s cause of action under Labor Law § 241 (6), it was incumbent upon plaintiff to show that defendants violated an Industrial Code provision that imposed a specific standard of conduct … . Plaintiff failed in that regard. The record discloses that the sheetrock was stored in the corner of a second-floor room and did not “obstruct any passageway, walkway, stairway or other thoroughfare” … .

Turning to plaintiff’s remaining claims, “Labor Law § 200 codifies the common-law duty imposed upon . . . general contractors to maintain a safe work site” … . Where the injury stemmed from the methods and means in which a subcontractor performed its work, “there must be a showing of supervisory control and actual or constructive notice of the unsafe manner of performance” … . “Where a subcontractor creates a condition on the premises that results in an unreasonable risk of harm and that condition is a proximate cause of a worker’s injuries, then common-law negligence may be implicated” … . Wiley v Marjam Supply Co., Inc., 2018 NY Slip Op 07381, Third Dept 11-1-18

LABOR LAW-CONSTRUCTION LAW (STACKED SHEETROCK DID NOT PRESENT AN ELEVATION RELATED HAZARD AND DID NOT BLOCK A PASSAGEWAY, DEFENDANTS DID NOT EXERCISE CONTROL OVER THE STACKING OF THE SHEETROCK, LABOR LAW 240 (1), 241 (6), 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION PROPERLY DISMISSED (THIRD DEPT))

COMPANY WHICH HIRED PLAINTIFF’S EMPLOYER AND PROPERTY OWNER LIABLE FOR PLAINTIFF’S FALL UNDER LABOR LAW 240 (1) AND 241 (6), THE COMPANY WHICH HIRED PLAINTIFF’S EMPLOYER WAS A PROPER DEFENDANT BECAUSE IT HAD THE AUTHORITY TO SUPERVISE, EVEN IF IT DID NOT EXERCISE THAT AUTHORITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the company which hired plaintiff’s employer, New York Plumbing, and the property owner,, Park Plaza, were liable for plaintiff’s fall, pursuant to Labor Law 240 (1) and 241 (6). New York Plumbing was liable because it had the authority to supervise plaintiff’s work, even if it did not exercise that authority. Park Plaza was not entitled to summary judgment on its indemnification action against New York Plumbing because it did not demonstrated New York Plumbing exercised actual supervision over plaintiff’s work. Plaintiff fell from the top of a temporary oil storage tank which was being emptied and cleaned:

Contrary to New York Plumbing’s contention, the plaintiff demonstrated, prima facie, that New York Plumbing had the authority to exercise control over the plaintiff’s work, even if it did not actually do so, and that New York Plumbing was therefore a proper defendant under the Labor Law … . …

Moreover, the plaintiff demonstrated that he was engaged in a protected activity under Labor Law §§ 240(1) and 241(6) when he was injured … .

The plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the issue of liability on the Labor Law § 240(1) cause of action insofar as asserted against the Park Plaza defendants [the property owner] and New York Plumbing. The plaintiff submitted evidence that he fell from a 12-to 16-foot high surface, and that he had not been provided with safety devices to protect him from such a fall … . …

The plaintiff’s Labor Law § 241(6) cause of action was predicated on an alleged violation of 12 NYCRR 23-1.7(d) … . The Park Plaza defendants and New York Plumbing failed to establish, prima facie, that a slippery condition on the oil tank was not a proximate cause of the plaintiff’s fall … .

Finally, the Park Plaza defendants did not demonstrate their prima facie entitlement to judgment as a matter of law on their cross claim for common-law indemnification against New York Plumbing, as their submissions did not establish, prima facie, that New York Plumbing exercised actual supervision over the plaintiff’s work … . Padilla v Park Plaza Owners Corp., 2018 NY Slip Op 07317, Second Dept 10-31-18

LABOR LAW-CONSTRUCTION LAW (COMPANY WHICH HIRED PLAINTIFF’S EMPLOYER AND PROPERTY OWNER LIABLE FOR PLAINTIFF’S FALL UNDER LABOR LAW 240 (1) AND 241 (6), THE COMPANY WHICH HIRED PLAINTIFF’S EMPLOYER WAS A PROPER DEFENDANT BECAUSE IT HAD THE AUTHORITY TO SUPERVISE, EVEN IF IT DID NOT EXERCISE THAT AUTHORITY (SECOND DEPT))/INDEMNIFICATION (LABOR LAW-CONSTRUCTION LAW, COMPANY WHICH HIRED PLAINTIFF’S EMPLOYER AND PROPERTY OWNER LIABLE FOR PLAINTIFF’S FALL UNDER LABOR LAW 240 (1) AND 241 (6), THE COMPANY WHICH HIRED PLAINTIFF’S EMPLOYER WAS A PROPER DEFENDANT BECAUSE IT HAD THE AUTHORITY TO SUPERVISE, EVEN IF IT DID NOT EXERCISE THAT AUTHORITY (SECOND DEPT))

QUESTIONS OF FACT WHETHER USING AN A-FRAME LADDER IN THE CLOSED POSITION WAS THE SOLE PROXIMATE CAUSE OF PLAINTIFF’S FALL, DEFENDANT’S SUMMARY JUDGMENT MOTION ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendant’s motion for summary judgment on the Labor Law 240 (1) cause of action should not have been damaged. Plaintiff fell when his A-frame ladder, which was in the closed position, slipped. There existed questions of fact whether using the A-frame ladder in the closed position was the sole proximate cause of the fall:

“A worker’s decision to use an A-frame ladder in the closed position is not a per se reason to declare him the sole proximate cause of an accident” … . Here, the defendants failed to satisfy their prima facie burden of establishing that the plaintiff’s actions were the sole proximate cause of his accident. Specifically, the defendants failed to eliminate all triable issues as to whether the ladder could have been placed in a manner that would have allowed the plaintiff to safely perform the work… , nor did the defendants establish that the plaintiff used the ladder in such a manner without the tacit approval of his supervisor … . Gillett v City of New York, 2018 NY Slip Op 07102, Second Dept 10-24-18

LABOR LAW-CONSTRUCTION LAW (QUESTIONS OF FACT WHETHER USING AN A-FRAME LADDER IN THE CLOSED POSITION WAS THE SOLE PROXIMATE CAUSE OF PLAINTIFF’S FALL, DEFENDANT’S SUMMARY JUDGMENT MOTION ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/LADDERS (LABOR LAW-CONSTRUCTION LAW, (QUESTIONS OF FACT WHETHER USING AN A-FRAME LADDER IN THE CLOSED POSITION WAS THE SOLE PROXIMATE CAUSE OF PLAINTIFF’S FALL, DEFENDANT’S SUMMARY JUDGMENT MOTION ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SOLE PROXIMATE CAUSE (LABOR LAW-CONSTRUCTION LAW, (QUESTIONS OF FACT WHETHER USING AN A-FRAME LADDER IN THE CLOSED POSITION WAS THE SOLE PROXIMATE CAUSE OF PLAINTIFF’S FALL, DEFENDANT’S SUMMARY JUDGMENT MOTION ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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PLAINTIFF IN THIS LABOR LAW 240 (1) ACTION WAS INJURED WHEN THE ROOF OF THE BUILDING COLLAPSED, HIS ACTION AGAINST HIS EMPLOYER (A DEMOLITION COMPANY) WAS BARRED BY THE EXCLUSIVITY PROVISIONS OF THE WORKERS’ COMPENSATION LAW, QUESTION OF FACT WHETHER THE COLLAPSE WAS FORESEEABLE IN THE ACTION AGAINST THE BUILDING OWNER, EVIDENCE THAT BEAMS HAD BEEN CUT WAS INADMISSIBLE HEARSAY (SECOND DEPT).

The Second Department determined plaintiff’s Labor Law 240 (1) action against his employer (a demolition company) was barred by the exclusivity provisions of the Workers’ Compensation Law. Plaintiff fell when the roof of the building collapsed. Plaintiff’s motion for summary judgment against the owner of the building was properly denied because there was a question of fact whether the collapse of the roof was foreseeable:

In order for liability to be imposed under Labor Law § 240(1), there must be “a foreseeable risk of injury from an elevation-related hazard . . . , as defendants are liable for all normal and foreseeable consequences of their acts'” … . In support of his motion for summary judgment, the plaintiff failed to demonstrate, prima facie, that the partial collapse of the roof and, in turn, the need for safety devices to protect the plaintiff from that hazard, were foreseeable … . The plaintiff’s deposition testimony that he was told that the roof collapsed because the beams from the third-floor ceiling had been cut constituted inadmissible hearsay … . Paguay v Cup of Tea, LLC, 2018 NY Slip Op 06926, Second Dept 10-17-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF IN THIS LABOR LAW 240 (1) ACTION WAS INJURED WHEN THE ROOF OF THE BUILDING COLLAPSED, HIS ACTION AGAINST HIS EMPLOYER (A DEMOLITION COMPANY) WAS BARRED BY THE EXCLUSIVITY PROVISIONS OF THE WORKERS’ COMPENSATION LAW, QUESTION OF FACT WHETHER THE COLLAPSE WAS FORESEEABLE IN THE ACTION AGAINST THE BUILDING OWNER (SECOND DEPT))/WORKERS’ COMPENSATION  (PLAINTIFF IN THIS LABOR LAW 240 (1) ACTION WAS INJURED WHEN THE ROOF OF THE BUILDING COLLAPSED, HIS ACTION AGAINST HIS EMPLOYER (A DEMOLITION COMPANY) WAS BARRED BY THE EXCLUSIVITY PROVISIONS OF THE WORKERS’ COMPENSATION LAW, QUESTION OF FACT WHETHER THE COLLAPSE WAS FORESEEABLE IN THE ACTION AGAINST THE BUILDING OWNER (SECOND DEPT))/EVIDENCE (HEARSAY, PLAINTIFF IN THIS LABOR LAW 240 (1) ACTION WAS INJURED WHEN THE ROOF OF THE BUILDING COLLAPSED, HIS ACTION AGAINST HIS EMPLOYER (A DEMOLITION COMPANY) WAS BARRED BY THE EXCLUSIVITY PROVISIONS OF THE WORKERS’ COMPENSATION LAW, QUESTION OF FACT WHETHER THE COLLAPSE WAS FORESEEABLE IN THE ACTION AGAINST THE BUILDING OWNER, EVIDENCE THAT BEAMS HAD BEEN CUT WAS INADMISSIBLE HEARSAY (SECOND DEPT))/HEARSAY (PLAINTIFF IN THIS LABOR LAW 240 (1) ACTION WAS INJURED WHEN THE ROOF OF THE BUILDING COLLAPSED, HIS ACTION AGAINST HIS EMPLOYER (A DEMOLITION COMPANY) WAS BARRED BY THE EXCLUSIVITY PROVISIONS OF THE WORKERS’ COMPENSATION LAW, QUESTION OF FACT WHETHER THE COLLAPSE WAS FORESEEABLE IN THE ACTION AGAINST THE BUILDING OWNER, EVIDENCE THAT BEAMS HAD BEEN CUT WAS INADMISSIBLE HEARSAY (SECOND DEPT))

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