Labor Law-Construction Law

IN THIS LABOR LAW 240(1), 241(6) AND 200 ACTION, THERE WAS A QUESTION OF FACT WHETHER DEFENDANT WAS AN OWNER OF THE PROPERTY WHERE PLAINTIFF WAS INJURED BY A FALLING OBJECT, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact whether defendant 101 Norfolk was an owner within the meaning of Labor Law 240(1), 241(6) and 200. Plaintiff was injured by a falling object:

Contrary to the defendant 101 Norfolk's contention, it cannot be said, as a matter of law, that the defendant 101 Norfolk was not an “owner” for purposes of liability under the Labor Law. Rather, the evidence demonstrated that the defendant 101 Norfolk owned the property on which the plaintiff allegedly was injured and there was evidence that the plaintiff was injured in the course of a construction project encompassing both 103-105 Norfolk Street and the defendant 101 Norfolk's property, 101 Norfolk Street. Under the circumstances of this case, triable issues of fact exist as to whether the defendant 101 Norfolk contracted to have the injury-causing work performed, or had a sufficient nexus to that work, so as to support liability under Labor Law §§ 240 and 241 … . There are also triable issues of fact as to whether the defendant 101 Norfolk had a duty to provide the plaintiff with a safe place to work … . Powell v Norfolk Hudson, LLC, 2018 NY Slip Op 06047, Second Dept 9-12-18

LABOR LAW-CONSTRUCTION LAW (IN THIS LABOR LAW 240(1), 241(6) AND 200 ACTION, THERE WAS A QUESTION OF FACT WHETHER DEFENDANT WAS AN OWNER OF THE PROPERTY WHERE PLAINTIFF WAS INJURED BY A FALLING OBJECT, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

September 12, 2018

Labor Law-Construction Law

INJURY FROM STEPPING INTO AN OPENING THAT IS NOT BIG ENOUGH FOR A PERSON TO FALL THROUGH IS NOT COVERED BY LABOR 240 (1) OR 241 (6) (SECOND DEPT).

The Second Department determined the defendants were entitled to summary judgment on the Labor Law 240 (1) and 241 (6) causes of action because injury caused by stepping in an opening that is not big enough for a person to fall through is not covered:

The defendants established, prima facie, their entitlement to judgment as a matter of law dismissing the Labor Law § 240(1) cause of action. The defendants submitted evidence that, although the plaintiff's foot slipped through openings in the rebar grid, the openings were too small for a person's body to fall through. The plaintiff testified at his deposition that his foot could fit through the openings, but not his entire body. The defendants, therefore, established that the openings of the grid did ” not present an elevation-related hazard to which the protective devices enumerated [in Labor Law § 240(1)] are designed to apply'” … . In opposition, the plaintiff failed to raise a triable issue of fact … .

The defendants also established, prima facie, their entitlement to judgment as a matter of law dismissing the Labor Law § 241(6) cause of action, which was premised upon alleged violations of 12 NYCRR 23-1.7(b)(1) and (d), (e), and (f). The provision pertaining to “hazardous openings” (12 NYCRR 23-1.7[b][1]) does not apply to openings that are too small for a worker to completely fall through … . Johnson v Lend Lease Constr. LMB, Inc., 2018 NY Slip Op 06004, Second Dept 9-12-18

LABOR LAW-CONSTRUCTION LAW (INJURY FROM STEPPING INTO AN OPENING THAT IS NOT BIG ENOUGH FOR A PERSON TO FALL THROUGH IS NOT COVERED BY LABOR 240 (1) OR 241 (6) (SECOND DEPT))

September 12, 2018

Labor Law-Construction Law

PLAINTIFF’S LADDER WAS PLACED ON A MUDDY WATERY SURFACE IN A TUNNEL AND IT SLIPPED OUT FROM UNDER HIM, PLAINTIFFS’ SUMMARY JUDGMENT MOTION ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action. Plaintiff was using a ladder on a muddy, watery surface in a tunnel when it slipped out from under him:

… [P]laintiffs were entitled to summary judgment on the issue of liability on the § 240(1) claim as against the MTA. The record establishes that the ladder that was provided to plaintiff failed to provide proper protection for him to perform the elevation-related task of re-positioning the stadium light, and MTA's opposition failed to raise a triable issue of fact … . Contrary to the contention that an issue of fact exists as to whether a platform was available to secure the ladder to, there is nothing in the record to support that. In fact the engineer merely testified that there “may or may not have been” platforms available to tie the ladder to. Gordon v City of New York, 2018 NY Slip Op 05972, First Dept 9-6-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF'S LADDER WAS PLACED ON A MUDDY WATERY SURFACE IN A TUNNEL AND IT SLIPPED OUT FROM UNDER HIM, PLAINTIFFS' SUMMARY JUDGMENT MOTION ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT))/LADDERS (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF'S LADDER WAS PLACED ON A MUDDY WATERY SURFACE IN A TUNNEL AND IT SLIPPED OUT FROM UNDER HIM, PLAINTIFFS' SUMMARY JUDGMENT MOTION ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT))

September 6, 2018

Civil Procedure, Labor Law-Construction Law

HOMEOWNER EXEMPTION APPLIED TO THE CHURCH IN THIS LABOR LAW 240 (1), 241 (6) AND 200 ACTION STEMMING FROM A FALL FROM A SCAFFOLD, FAILURE TO PLEAD THE EXEMPTION AS A DEFENSE DID NOT PRECLUDE RAISING IT IN A SUMMARY JUDGMENT MOTION, ARCHDIOCESE WAS NOT AN AGENT OF THE OWNER, NO LABOR LAW 200 LIABILITY BECAUSE PLAINTIFF’S EMPLOYER SUPERVISED AND CONTROLLED THE MEANS AND MANNER OF WORK (FIRST DEPT).

The First Department, modifying Supreme Court, determined defendant church demonstrated it was entitled to the homeowner exemption from liability in this Labor Law 240 (1) and 241 (6) actions stemming from plaintiff's fall from a scaffold. The failure to plead the exemption as a defense did not preclude raising it in the summary judgment motion. The Archdiocese was not an agent of the owner because it did not have the authority to control or supervise plaintiff's work. And the Labor Law 200 cause of action should have been dismissed because the accident involved the means and methods of work controlled solely by plaintiff's employer:

Defendant Catholic Church of Christ the King made a prima facie showing that the accident in which plaintiff was injured falls within the exemption to Labor Law § 240(1) and Labor Law § 241(6) for “owners of one and two-family dwellings who contract for but do not direct or control the work” (Labor Law § 240[1]; Labor Law § 241). Plaintiff was repairing a detached garage associated with a church rectory used for both residential and church purposes … . Moreover, the certificate of occupancy indicates that the rectory constituted a dwelling and a private garage … . Defendant's failure to plead this affirmative defense in its answer does not mandate the denial of its motion, since plaintiff was not surprised by the defense, and fully opposed the motion (see CPLR 3018[b] … ).

Plaintiff failed to raise issues of fact as to the applicability of the homeowner exemption. His assertion that the garage was exclusively restricted to use by teachers at an elementary school owned by the church is unsupported by the record. Bautista v Archdiocese of N.Y., 2018 NY Slip Op 05959, First Dept 8-30-18

LABOR LAW-CONSTRUCTION LAW (HOMEOWNER EXEMPTION APPLIED TO THE CHURCH IN THIS LABOR LAW 240 (1), 241 (6) AND 200 ACTION STEMMING FROM A FALL FROM A SCAFFOLD, FAILURE TO PLEAD THE EXEMPTION AS A DEFENSE DID NOT PRECLUDE RAISING IT IN A SUMMARY JUDGMENT MOTION, ARCHDIOCESE WAS NOT AN AGENT OF THE OWNER, NO LABOR LAW 200 LIABILITY BECAUSE PLAINTIFF'S EMPLOYER SUPERVISED AND CONTROLLED THE MEANS AND MANNER OF WORK (FIRST DEPT))/CIVIL PROCEDURE (LABOR LAW-CONSTRUCTION LAW, HOMEOWNER EXEMPTION APPLIED TO THE CHURCH IN THIS LABOR LAW 240 (1), 241 (6) AND 200 ACTION STEMMING FROM A FALL FROM A SCAFFOLD, FAILURE TO PLEAD THE EXEMPTION AS A DEFENSE DID NOT PRECLUDE RAISING IT IN A SUMMARY JUDGMENT MOTION, ARCHDIOCESE WAS NOT AN AGENT OF THE OWNER, NO LABOR LAW 200 LIABILITY BECAUSE PLAINTIFF'S EMPLOYER SUPERVISED AND CONTROLLED THE MEANS AND MANNER OF WORK (FIRST DEPT))/CPLR 3018 (LABOR LAW-CONSTRUCTION LAW, HOMEOWNER EXEMPTION APPLIED TO THE CHURCH IN THIS LABOR LAW 240 (1), 241 (6) AND 200 ACTION STEMMING FROM A FALL FROM A SCAFFOLD, FAILURE TO PLEAD THE EXEMPTION AS A DEFENSE DID NOT PRECLUDE RAISING IT IN A SUMMARY JUDGMENT MOTION, ARCHDIOCESE WAS NOT AN AGENT OF THE OWNER, NO LABOR LAW 200 LIABILITY BECAUSE PLAINTIFF'S EMPLOYER SUPERVISED AND CONTROLLED THE MEANS AND MANNER OF WORK (FIRST DEPT))/HOMEOWNER EXEMPTION (LABOR LAW-CONSTRUCTION LAW, HOMEOWNER EXEMPTION APPLIED TO THE CHURCH IN THIS LABOR LAW 240 (1), 241 (6) AND 200 ACTION STEMMING FROM A FALL FROM A SCAFFOLD, FAILURE TO PLEAD THE EXEMPTION AS A DEFENSE DID NOT PRECLUDE RAISING IT IN A SUMMARY JUDGMENT MOTION, ARCHDIOCESE WAS NOT AN AGENT OF THE OWNER, NO LABOR LAW 200 LIABILITY BECAUSE PLAINTIFF'S EMPLOYER SUPERVISED AND CONTROLLED THE MEANS AND MANNER OF WORK (FIRST DEPT))

August 30, 2018

Civil Procedure, Evidence, Labor Law-Construction Law

AFFIDAVIT FROM AN EYEWITNESS TO THE ACCIDENT SUBMITTED WITH THE REPLY PAPERS WAS PROPERLY CONSIDERED AS IT DID NOT CONFLICT THE WITNESS’S OTHER AFFIDAVIT OR THE WITNESS’S PRIOR UNSWORN STATEMENT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY GRANTED (SECOND DEPT).

The First Department determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action. Plaintiff alleged his thumb was crushed when attempting to lift a roof cutting machine over a parapet at the edge of the roof in order to drop the machine to insulation material ten feet below. Three affidavits from an eyewitness (Vera) were submitted, including an affidavit submitted with the reply. The defendant argued conflicts in the affidavits created a question of fact. But the court saw no conflicts:

The motion court properly accepted Veras’s second, clarifying affidavit in plaintiff’s submission on reply. The second affidavit merely amplified the factual recitation set forth in Veras’s initial affidavit, which had been procured and drafted by the defense and omitted the pertinent detail that the workers were actually in the process of lowering the machine from the roof, and not engaged in pushing it across the flat roof, when the accident occurred. Veras’s second affidavit was a proper response to defendant’s submission, and did not contradict the statement in his first affidavit … Nor could Veras’s second affidavit be rejected as raising a feigned issue of fact … , especially since it comported with all of the other eyewitness testimony in the case, as well as with Veras’s own early unsworn statement, and explained the ambiguity arising from the omission of additional details in his first affidavit.

We have recognized the distinction in Labor Law § 240(1) cases between contradictory evidence and evidence that is subject to explanation in granting partial summary judgment on liability to a plaintiff… .

Here, Veras’s three statements, when taken together and along with those of the three other eyewitnesses and that of plaintiff, provided a detailed and consistent recounting of the accident as having occurred during the lowering of the machine. Cuevas v Baruti Constr. Corp., 2018 NY Slip Op 05905, First Dept 8-23-18

LABOR LAW-CONSTRUCTION LAW (AFFIDAVIT FROM AN EYEWITNESS TO THE ACCIDENT SUBMITTED WITH THE REPLY PAPERS WAS PROPERLY CONSIDERED AS IT DID NOT CONFLICT THE WITNESS’S OTHER AFFIDAVIT OR THE WITNESS’S PRIOR UNSWORN STATEMENT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY GRANTED (SECOND DEPT))/EVIDENCE (LABOR LAW-CONSTRUCTION LAW, CIVIL PROCEDURE, AFFIDAVIT FROM AN EYEWITNESS TO THE ACCIDENT SUBMITTED WITH THE REPLY PAPERS WAS PROPERLY CONSIDERED AS IT DID NOT CONFLICT THE WITNESS’S OTHER AFFIDAVIT OR THE WITNESS’S PRIOR UNSWORN STATEMENT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY GRANTED (SECOND DEPT))/EVIDENCE (LABOR LAW-CONSTRUCTION LAW, SUMMARY JUDGMENT, AFFIDAVIT FROM AN EYEWITNESS TO THE ACCIDENT SUBMITTED WITH THE REPLY PAPERS WAS PROPERLY CONSIDERED AS IT DID NOT CONFLICT THE WITNESS’S OTHER AFFIDAVIT OR THE WITNESS’S PRIOR UNSWORN STATEMENT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY GRANTED (SECOND DEPT))/CIVIL PROCEDURE (REPLY, AFFIDAVIT FROM AN EYEWITNESS TO THE ACCIDENT SUBMITTED WITH THE REPLY PAPERS WAS PROPERLY CONSIDERED AS IT DID NOT CONFLICT THE WITNESS’S OTHER AFFIDAVIT OR THE WITNESS’S PRIOR UNSWORN STATEMENT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY GRANTED (SECOND DEPT))/REPLY (AFFIDAVIT FROM AN EYEWITNESS TO THE ACCIDENT SUBMITTED WITH THE REPLY PAPERS WAS PROPERLY CONSIDERED AS IT DID NOT CONFLICT THE WITNESS’S OTHER AFFIDAVIT OR THE WITNESS’S PRIOR UNSWORN STATEMENT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY GRANTED (SECOND DEPT))

August 23, 2018

Labor Law-Construction Law, Trusts and Estates

HOMEOWNER’S DAUGHTER, AS EXECUTRIX OF DECEDENT HOMEOWNER’S ESTATE, ENTITLED TO HOMEOWNER’S EXEMPTION FROM LIABILITY UNDER LABOR LAW 240 (1) AND 241 (6), BUT DECEDENT’S SON, WHO GAVE WORK INSTRUCTIONS TO THE INJURED PLAINTIFF, WAS NOT ENTITLED TO THE HOMEOWNER’S EXEMPTION AND MAY BE LIABLE AS AN AGENT OF THE OWNER (SECOND DEPT).

The Second Department determined one of decedent homeowner's children, Nina, who was the executrix of decedent's estate, was entitled to dismissal of the Labor Law 240 (1) and 241 (6) causes of action pursuant to the homeowner's exemption, but there was a question of fact whether decedent's son, Stephen, was liable as an agent of the owner. Plaintiff, who was hired to paint the interior of decedent's home, alleged Stephen instructed him to use a ladder to enter the house through a window. Plaintiff fell when the ladder slipped out from under him:

… [T]he defendants established the entitlement of Nina, as executrix of the decedent's estate, to the protection of the homeowner's exemption by submitting evidence that the decedent owned the one-family residence at which the work was being performed and that the decedent did not direct or control the work being done … . …

… Stephen did not own the subject residence and, therefore, was not entitled to the homeowner's exemption … . …

… [T]the defendants failed to demonstrate, prima facie, that liability for violations of Labor Law §§ 240(1) and 241(6) could not be imposed upon Stephen as an agent of the owner. “A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done where a plaintiff is injured”… . “To impose . . . liability [under the Labor Law], the defendant must have the authority to control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition” … . Here, a triable issue of fact exists as to whether Stephen had the authority to supervise and control the plaintiff's work. Stephen told the plaintiff which rooms to paint and, according to the plaintiff, directed him to use a ladder to access the house through a window. Diaz v Trevisani, 2018 NY Slip Op 05823, Second Dept 8-22-18

LABOR LAW-CONSTRUCTION LAW (HOMEOWNER'S DAUGHTER, AS EXECUTRIX OF DECEDENT HOMEOWNER'S ESTATE, ENTITLED TO HOMEOWNER'S EXEMPTION FROM LIABILITY UNDER LABOR LAW 240 (1) AND 241 (6), BUT DECEDENT'S SON, WHO GAVE WORK INSTRUCTIONS TO THE INJURED PLAINTIFF, WAS NOT ENTITLED TO THE HOMEOWNER'S EXEMPTION AND MAY BE LIABLE AS AN AGENT OF THE OWNER (SECOND DEPT))/HOMEOWNER'S EXEMPTION (LABOR LAW-CONSTRUCTION LAW, HOMEOWNER'S DAUGHTER, AS EXECUTRIX OF DECEDENT HOMEOWNER'S ESTATE, ENTITLED TO HOMEOWNER'S EXEMPTION FROM LIABILITY UNDER LABOR LAW 240 (1) AND 241 (6), BUT DECEDENT'S SON, WHO GAVE WORK INSTRUCTIONS TO THE INJURED PLAINTIFF, WAS NOT ENTITLED TO THE HOMEOWNER'S EXEMPTION AND MAY BE LIABLE AS AN AGENT OF THE OWNER (SECOND DEPT))/TRUSTS AND ESTATES (LABOR LAW-CONSTRUCTION LAW, HOMEOWNER'S DAUGHTER, AS EXECUTRIX OF DECEDENT HOMEOWNER'S ESTATE, ENTITLED TO HOMEOWNER'S EXEMPTION FROM LIABILITY UNDER LABOR LAW 240 (1) AND 241 (6), BUT DECEDENT'S SON, WHO GAVE WORK INSTRUCTIONS TO THE INJURED PLAINTIFF, WAS NOT ENTITLED TO THE HOMEOWNER'S EXEMPTION AND MAY BE LIABLE AS AN AGENT OF THE OWNER (SECOND DEPT))/AGENCY (LABOR LAW-CONSTRUCTION LAW, HOMEOWNER'S DAUGHTER, AS EXECUTRIX OF DECEDENT HOMEOWNER'S ESTATE, ENTITLED TO HOMEOWNER'S EXEMPTION FROM LIABILITY UNDER LABOR LAW 240 (1) AND 241 (6), BUT DECEDENT'S SON, WHO GAVE WORK INSTRUCTIONS TO THE INJURED PLAINTIFF, WAS NOT ENTITLED TO THE HOMEOWNER'S EXEMPTION AND MAY BE LIABLE AS AN AGENT OF THE OWNER (SECOND DEPT))

August 22, 2018

Labor Law-Construction Law

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION SHOULD HAVE BEEN GRANTED, PLAINTIFF FELL OFF THE BACK OF A FLATBED TRUCK AS STEEL BEAMS WERE BEING HOISTED FROM THE TRUCK (FIRST DEPT).

The First Department, reversing Supreme Court, determined that plaintiff’s motion for summary judgment on his Labor Law 240 (1) and 241 (6) causes of action should have been granted. Plaintiff fell off a flatbed truck as steel beams were being hoisted from the truck:

Plaintiff established that the accident was proximately caused by defendants’ failure to provide safety devices necessary to ensure protection from the gravity-related risks posed by the work he was engaged in, in violation of Labor Law § 240(1) … . Here, plaintiff fell off a flatbed truck after a load of steel beams, without tag lines, was hoisted above him by a crane, and began to swing towards him … . The risk of the hoisted load of beams with no tag lines triggered the protections set forth in Labor Law § 240(1) … . Based on the same evidence, plaintiff also established his Labor Law § 241(6) claim insofar as the swinging beams lacked tag lines, a violation of 12 NYCRR 23-8.2(c)(3), which requires tag lines or certain other restraints to be used to avoid hazards posed by swinging loads hoisted by mobile cranes. Flores v Metropolitan Transp. Auth., 2018 NY Slip Op 05734, First Dept 8-9-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION SHOULD HAVE BEEN GRANTED, PLAINTIFF FELL OFF THE BACK OF A FLATBED TRUCK AS STEEL BEAMS WERE BEING HOISTED FROM THE TRUCK (FIRST DEPT))/FLATBED TRUCK (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION SHOULD HAVE BEEN GRANTED, PLAINTIFF FELL OFF THE BACK OF A FLATBED TRUCK AS STEEL BEAMS WERE BEING HOISTED FROM THE TRUCK (FIRST DEPT))

August 9, 2018

Contract Law, Labor Law-Construction Law, Landlord-Tenant, Negligence

VENTILATOR FROM WHICH PLAINTIFF FELL WAS NOT A SAFETY DEVICE, HOWEVER THE FACT THAT PLAINTIFF COULD NOT REACH THE VENTILATOR FROM THE LADDER ENTITLED HIM TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION, A VIOLATION OF LABOR LAW 240 (1) IS NOT A FINDING OF NEGLIGENCE, LANDLORD ENTITLED TO INDEMNIFICATION UNDER THE LEASE TERMS (FIRST DEPT).

The First Department determined (1) the ventilator on which plaintiff was crouching when it detached and he fell was not a safety device within the meaning of Labor Law 240 (1), (2) plaintiff’s testimony that he couldn’t reach the ventilator, which he was attempting to remove, from the A-frame ladder he was provided entitled him to summary judgment on the Labor Law 240 (1) cause of action, and (3) the landlord was entitled to summary judgment on the cross-claim for indemnification by the tenant, noting that the indemnification clause in the lease did not require that the tenant be negligent and that a Labor Law 240 (1) violation is not a finding that the tenant was negligent:

Contrary to plaintiff’s contention, the ventilator he was standing on and disassembling when he fell was not a safety device; it was the object of the demolition project on which he was employed, and was not intended to protect him from elevation-related risks … . …

Despite Eight Oranges’ [tenant’s] argument to the contrary, this indemnification provision does not require a finding of negligence on the part of the tenant before it is triggered. Nor does it violate General Obligations Law § 5-321, “since a finding of liability under Labor Law § 240 is not the equivalent of a finding of negligence and does not give rise to an inference of negligence” … . It is clear from the contractual language at issue that the landlord … intended to be indemnified by the tenant, Eight Oranges, for any “damage or injury occurring or arising to any person” on the property, that is caused by the tenant. Hong-Bao Ren v Gioia St. Marks, LLC, 2018 NY Slip Op 05520, First Dept 7-26-18

LABOR LAW-CONSTRUCTION LAW (VENTILATOR FROM WHICH PLAINTIFF FELL WAS NOT A SAFETY DEVICE, HOWEVER THE FACT THAT PLAINTIFF COULD NOT REACH THE VENTILATOR FROM THE LADDER ENTITLED HIM TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION, A VIOLATION OF LABOR LAW 240 (1) IS NOT A FINDING OF NEGLIGENCE, LANDLORD ENTITLED TO INDEMNIFICATION UNDER THE LEASE TERMS (FIRST DEPT))/CONTRACT LAW (LABOR LAW-CONSTRUCTION LAW VENTILATOR FROM WHICH PLAINTIFF FELL WAS NOT A SAFETY DEVICE, HOWEVER THE FACT THAT PLAINTIFF COULD NOT REACH THE VENTILATOR FROM THE LADDER ENTITLED HIM TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION, A VIOLATION OF LABOR LAW 240 (1) IS NOT A FINDING OF NEGLIGENCE, LANDLORD ENTITLED TO INDEMNIFICATION UNDER THE LEASE TERMS (FIRST DEPT))/CONTRACT LAW (LABOR LAW-CONSTRUCTION LAW VENTILATOR FROM WHICH PLAINTIFF FELL WAS NOT A SAFETY DEVICE, HOWEVER THE FACT THAT PLAINTIFF COULD NOT REACH THE VENTILATOR FROM THE LADDER ENTITLED HIM TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION, A VIOLATION OF LABOR LAW 240 (1) IS NOT A FINDING OF NEGLIGENCE, LANDLORD ENTITLED TO INDEMNIFICATION UNDER THE LEASE TERMS (FIRST DEPT))/LANDLORD-TENANT (LABOR LAW-CONSTRUCTION LAW VENTILATOR FROM WHICH PLAINTIFF FELL WAS NOT A SAFETY DEVICE, HOWEVER THE FACT THAT PLAINTIFF COULD NOT REACH THE VENTILATOR FROM THE LADDER ENTITLED HIM TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION, A VIOLATION OF LABOR LAW 240 (1) IS NOT A FINDING OF NEGLIGENCE, LANDLORD ENTITLED TO INDEMNIFICATION UNDER THE LEASE TERMS (FIRST DEPT))/NEGLIGENCE (LABOR LAW-CONSTRUCTION LAW VENTILATOR FROM WHICH PLAINTIFF FELL WAS NOT A SAFETY DEVICE, HOWEVER THE FACT THAT PLAINTIFF COULD NOT REACH THE VENTILATOR FROM THE LADDER ENTITLED HIM TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION, A VIOLATION OF LABOR LAW 240 (1) IS NOT A FINDING OF NEGLIGENCE, LANDLORD ENTITLED TO INDEMNIFICATION UNDER THE LEASE TERMS (FIRST DEPT))

July 26, 2018

Labor Law-Construction Law

PLAINTIFF WAS NOT ENGAGED IN CONSTRUCTION WORK OR IN A CONSTRUCTION AREA WHEN HE WAS INJURED, HE WAS BRINGING IN SUPPLIES WHICH WERE BEING STOCKPILED AND WERE NOT FOR IMMEDIATE USE, THEREFORE THE LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION WERE PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined the owner of the building (Sussex) and plaintiff’s employer (Berkoff) were entitled to summary judgment in this Labor Law 240 (1), 241 (6) and 200 action. Plaintiff was injured when he fell bringing in boxes of tile and thin set using a hand truck. Plaintiff was not performing construction work within the mean of Labor Law 240 (1) and 241 (6) because the material he was bringing in were not for immediate use. Both defendants established they did not supervise plaintiff’s work or have notice of any dangerous condition:

Sussex and Berkoff each established their prima facie entitlement to judgment as a matter of law dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against Sussex. The evidence supporting the motions established that at the time of the accident, the plaintiff was not engaged in construction work within the meaning of Labor Law § 240(1), and was not working in a construction area within the meaning of Labor Law § 241(6), since the building materials were not being “readied for immediate use” … , but were instead being “stockpil[ed] for future use” … . …

Sussex and Berkoff each established, prima facie, both that Sussex did not create or have actual or constructive notice of the alleged condition which caused the plaintiff’s injury, and that it did not supervise or control the means and methods of the plaintiff’s work … . Kusayev v Sussex Apts. Assoc., LLC, 2018 NY Slip Op 05458, Second Dept 7-25-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF WAS NOT ENGAGED IN CONSTRUCTION WORK OR IN A CONSTRUCTION AREA WHEN HE WAS INJURED, HE WAS BRINGING IN SUPPLIES WHICH WERE BEING STOCKPILED AND WERE NOT FOR IMMEDIATE USE, THEREFORE THE LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION WERE PROPERLY DISMISSED (SECOND DEPT))/CONSTRUCTION (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF WAS NOT ENGAGED IN CONSTRUCTION WORK OR IN A CONSTRUCTION AREA WHEN HE WAS INJURED, HE WAS BRINGING IN SUPPLIES WHICH WERE BEING STOCKPILED AND WERE NOT FOR IMMEDIATE USE, THEREFORE THE LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION WERE PROPERLY DISMISSED (SECOND DEPT))

July 25, 2018

Labor Law-Construction Law

PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION, PLAINTIFF DEMONSTRATED THE FAILURE OF A TOE BOARD WAS AT LEAST A CONTRIBUTING CAUSE OF PLAINTIFF’S FALL FROM A ROOF, CONTRIBUTORY NEGLIGENCE IS NOT A BAR TO RECOVERY AS A MATTER OF LAW (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action. Plaintiff fell from a roof after a toe board became detached from the roof:

“Plaintiff[s] met [their] initial burden by establishing that [plaintiff’s] injury was proximately caused by the failure of a safety device to afford him proper protection from an elevation-related risk” … . “[T]he question of whether [a] device provided proper protection within the meaning of Labor Law § 240 (1) is ordinarily a question of fact, except in those instances where the unrefuted evidence establishes that the device collapsed, slipped or otherwise failed to perform its [intended] function of supporting the worker and his or her materials” … . Here, plaintiffs established that, on the morning of the accident, plaintiff had been instructed to work on a pitched roof on which “toe boards,” i.e., two- by six-inch boards nailed directly to the roof approximately two to three feet up from the bottom edge of the roof, had already been installed, and defendants failed to submit non-speculative evidence to the contrary. There is no dispute that the toe boards detached from the roof while plaintiff was working, causing him to fall and sustain injuries. The failure of that safety device constituted a violation of Labor Law § 240 (1) as a matter of law …, and that violation was, at minimum, ” a contributing cause of [plaintiff’s] fall’ “… . Thus, contrary to defendants’ contentions, plaintiff’s alleged failure to utilize other safety devices available on the job site, including his alleged failure to reinstall the toe boards with additional supporting roof jacks, raises no more than an issue of contributory negligence … . Provens v Ben-Fall Dev., LLC, 2018 NY Slip Op 05426, Fourth Dept 7-25-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION, PLAINTIFF DEMONSTRATED THE FAILURE OF A TOE BOARD WAS AT LEAST A CONTRIBUTING CAUSE OF PLAINTIFF’S FALL FROM A ROOF, CONTRIBUTORY NEGLIGENCE IS NOT A BAR TO RECOVERY AS A MATTER OF LAW (FOURTH DEPT))

July 25, 2018

IN THIS LABOR LAW 240(1), 241(6) AND 200 ACTION, THERE WAS A QUESTION OF FACT WHETHER DEFENDANT WAS AN OWNER OF THE PROPERTY WHERE PLAINTIFF WAS INJURED BY A FALLING OBJECT, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

INJURY FROM STEPPING INTO AN OPENING THAT IS NOT BIG ENOUGH FOR A PERSON TO FALL THROUGH IS NOT COVERED BY LABOR 240 (1) OR 241 (6) (SECOND DEPT).

PLAINTIFF’S LADDER WAS PLACED ON A MUDDY WATERY SURFACE IN A TUNNEL AND IT SLIPPED OUT FROM UNDER HIM, PLAINTIFFS’ SUMMARY JUDGMENT MOTION ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION SHOULD HAVE BEEN GRANTED, PLAINTIFF FELL OFF THE BACK OF A FLATBED TRUCK AS STEEL BEAMS WERE BEING HOISTED FROM THE TRUCK (FIRST DEPT).

PLAINTIFF WAS NOT ENGAGED IN CONSTRUCTION WORK OR IN A CONSTRUCTION AREA WHEN HE WAS INJURED, HE WAS BRINGING IN SUPPLIES WHICH WERE BEING STOCKPILED AND WERE NOT FOR IMMEDIATE USE, THEREFORE THE LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION WERE PROPERLY DISMISSED (SECOND DEPT).

PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION, PLAINTIFF DEMONSTRATED THE FAILURE OF A TOE BOARD WAS AT LEAST A CONTRIBUTING CAUSE OF PLAINTIFF’S FALL FROM A ROOF, CONTRIBUTORY NEGLIGENCE IS NOT A BAR TO RECOVERY AS A MATTER OF LAW (FOURTH DEPT).

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