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INJURY FROM SIX INCH FALL OF 500 POUND BEAM COVERED BY LABOR LAW 240 (1), POWER TO STOP WORK FOR SAFETY REASONS INSUFFICIENT BASIS FOR LIABILITY UNDER LABOR LAW 200 (FIRST DEPT).

The First Department, modifying Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action and the construction manager (Structure Tone), although it had the power to stop work for safety reasons, was entitled to summary judgment on the Labor Law 200 cause of action:

Plaintiff was injured … when he and three other workers were attempting to load a 500-pound steel I-beam into an internal freight elevator at a construction site in order to transport it from the 18th floor to the ground floor. The elevator was four feet wide and five feet deep, with an eight foot ceiling, while the beam was 12 feet long. The workers opened a hatch on top of the elevator, and were attempting to stand the beam on its end, with the high end extending through the open hatch, when the beam fell down half a foot onto plaintiff’s shoulder. …

Plaintiff submitted evidence showing that he was engaged in an activity covered by the statute, that defendants failed to provide an adequate safety device to protect him, and that such violation was a proximate cause of the accident … . The half foot that the steel I-beam dropped onto plaintiff’s shoulder is not de minimis, given the I-beam’s weight and since the hazard was one directly flowing from the application of the force of gravity to a person … . * * *

Although Structure Tone had the authority to stop work at the construction site for safety reasons, this is “insufficient to raise a triable issue of fact with respect to whether [Structure Tone] exercised the requisite degree of supervision and control over the work being performed to sustain a claim under Labor Law § 200 or for common-law negligence” … . Villanueva v 114 Fifth Ave. Assoc. LLC, 2018 NY Slip Op 03928, First Dept 6-5-18

​LABOR LAW-CONSTRUCTION LAW (INJURY FROM SIX INCH FALL OF 500 POUND BEAM COVERED BY LABOR LAW 240 (1), POWER TO STOP WORK FOR SAFETY REASONS INSUFFICIENT BASIS FOR LIABILITY UNDER LABOR LAW 200 (FIRST DEPT))

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PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, UNTIMELY CROSS MOTION CAN BE CONSIDERED ONLY TO THE EXTENT THE ISSUES RAISED ARE THE SAME AS THE ISSUES RAISED IN PLAINTIFF’S SUMMARY JUDGMENT MOTION (FIRST DEPT).

The First Department determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action. Plaintiff was standing on a scaffold when a masonry stone fell on the scaffold and the planks collapsed. The court noted that defendants’ untimely cross motion for summary judgment was properly considered only to the extent the issues were identical to the issues raised in plaintiff’s motion for summary judgment:

This Court may consider the merits of defendants’ untimely cross motion for summary judgment dismissing the complaint to the extent it sought dismissal of the Labor Law § 240(1) claim, because it is based on the same issues raised in plaintiff’s motion … However, the remainder of the motion, seeking dismissal of Labor Law § 241(6), Labor Law § 200 and common law negligence claims cannot be considered because it does not address issues nearly identical to those raised in the timely motion and defendants did not demonstrate good cause for the delay … .

Plaintiff is entitled to summary judgment as to liability on his Labor Law § 240(1) claim. He established, prima facie, that he was engaged in an activity falling within the statute, and that defendants failed to provide him proper safety equipment, either in the form of a scaffold that could withstand the force of a falling masonry stone … , or any other appropriate safety device. Plaintiff further demonstrated that defendants’ failure to provide an appropriate safety device was the proximate cause of the accident, and defendants have failed to raise an issue of fact. Jarama v 902 Liberty Ave. Hous. Dev. Fund Corp., 2018 NY Slip Op 03897, First Dept 5-31-18

​LABOR LAW -CONSTRUCTION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, UNTIMELY CROSS MOTION CAN BE CONSIDERED ONLY TO THE EXTENT THE ISSUES RAISED ARE THE SAME AS THE ISSUES RAISED IN PLAINTIFF’S SUMMARY JUDGMENT MOTION (FIRST DEPT))/CIVIL PROCEDURE (SUMMARY JUDGMENT, UNTIMELY CROSS MOTION CAN BE CONSIDERED ONLY TO THE EXTENT THE ISSUES RAISED ARE THE SAME AS THE ISSUES RAISED IN PLAINTIFF’S SUMMARY JUDGMENT MOTION (FIRST DEPT))/SUMMARY JUDGMENT ( UNTIMELY CROSS MOTION CAN BE CONSIDERED ONLY TO THE EXTENT THE ISSUES RAISED ARE THE SAME AS THE ISSUES RAISED IN PLAINTIFF’S SUMMARY JUDGMENT MOTION (FIRST DEPT))

PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, PLAINTIFF FELL THROUGH AN OPENING COVERED BY A PIECE OF PARTICLE BOARD (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action should have been granted. Plaintiff fell through an opening covered by a piece of particle board:

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There is no issue of fact as to whether it was foreseeable that the particle board covering an escape hatch on top of the elevator car where plaintiff was required to work would collapse when traversed by him … . It is not dispositive that the escape hatch covering was not intended to serve as a safety device protecting workers from elevation-related risks. Rather, since plaintiff’s work exposed him to such risks, he was required to be provided with adequate safety devices in compliance with Labor Law § 240(1) … . Giancola v Yale Club of N.Y. City, 2018 NY Slip Op 03901, First Dept 5-31-18

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LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, PLAINTIFF FELL THROUGH AN OPENING COVERED BY A PIECE OF PARTICLE BOARD (FIRST DEPT))

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QUESTION OF FACT WHETHER DEFENDANT WHICH COULD STOP WORK FOR UNSAFE PRACTICES WAS A STATUTORY AGENT OF THE OWNER OR CONSTRUCTION MANAGER FOR PURPOSES OF LIABILITY UNDER LABOR LAW 240 (1) AND 241 (6) (FIRST DEPT).

The First Department, over a dissent, affirmed the denial of summary judgment to plaintiff on his Labor Law 240 (1) and 241 (6) causes of action. The court discussed the concept of a “statutory agent” of an owner or general contractor:

​Labor Law §§ 240(1) and 241(6) impose absolute liability on “contractors and owners and their agents” for worker injuries on construction sites… . CRSG, as site safety consultant, was neither an owner nor general contractor on the project. Thus, whether CRSG is subject to the Labor Law is dependent on whether it was an “agent” of the owners or [construction manager] at the site.

To hold a defendant liable under the Labor Law as a “statutory agent” of either the owner or the general contractor, it must be shown that the defendant had the ” authority to supervise and control'” the injury-producing work … . The determinative factor is whether the defendant had the right to exercise control over the work, not whether it actually exercised that right … . Where the owner or general contractor delegates to a third party the duty to conform to the requirements of the Labor Law, that third party becomes the statutory agent … .

The authority of DeSimone, as an employee of CRSG, to stop work in the event of unsafe practices raises an issue of fact as to whether CRSG is a “statutory agent” for purposes of the Labor Law … . Santos v Condo 124 LLC, 2018 NY Slip Op 03799, First Dept 5-29-18

​LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER DEFENDANT WHICH COULD STOP WORK FOR UNSAFE PRACTICES WAS A STATUTORY AGENT OF THE OWNER OR CONSTRUCTION MANAGER FOR PURPOSES OF LIABILITY UNDER LABOR LAW 240 (1) AND 241 (6) (FIRST DEPT))/STATUTORY AGENT (LABOR LAW-CONSTRUCTION LAW, QUESTION OF FACT WHETHER DEFENDANT WHICH COULD STOP WORK FOR UNSAFE PRACTICES WAS A STATUTORY AGENT OF THE OWNER OR CONSTRUCTION MANAGER FOR PURPOSES OF LIABILITY UNDER LABOR LAW 240 (1) AND 241 (6) (FIRST DEPT))

ARBITRATOR’S RULING WAS IRRATIONAL AND VIOLATED CPLR 1209 IN THIS NO-FAULT INSURANCE ACTION, HEALTH CARE PROVIDER, AS AN ASSIGNEE, WAS ENTITLED TO ARBITRATE ITS CLAIM FOR CARE PROVIDED TO THE INJURED INFANT (SECOND DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff’s Labor Law 240 (1) cause of action should have been dismissed. Plaintiff, while carrying a heavy pipe on a ramp, lost his balance and was struck by the pipe:

Plaintiff’s testimony established that he was not exposed to the type of elevation-related hazard contemplated by the statute. The height differential of 6 to 10 inches mediated by the ramp did not constitute a physically significant elevation differential covered by the statute … . Also, as the ramp was serving as a passageway, as opposed to the “functional equivalent” of a safety device enumerated under the statute, it did not fall within the purview of the statute … . Further, the impetus for the pipe’s descent was plaintiff’s loss of balance, rather than the direct consequence of the force of gravity … . Jackson v Hunter Roberts Constr. Group, LLC, 2018 NY Slip Op 03805, First Dept 5-29-18

​LABOR LAW-CONSTRUCTION LAW (PLAINTIFF LOST HIS BALANCE CARRYING A PIPE ON A RAMP, INCIDENT NOT COVERED BY LABOR LAW 240 (1) (FIRST DEPT))

ACCIDENT DID NOT INVOLVE AN ELEVATION-RELATED RISK, DEFENDANT SUBCONTRACTORS DID NOT EXERCISE CONTROL OF THE PLAINTIFF, THE AREA OR THE WORK, DEFENDANTS’ SUMMARY JUDGMENT MOTIONS ON THE LABOR LAW 240 (1), 241 (6) AND 200 CAUSES OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the Labor Law 240 (1) cause of action should have been dismissed because the accident, tripping over a pile of sand on ground level, did not involve an elevation-related risk. The Labor Law 241 (6) and 200 causes of  action should have been dismissed because the defendants (subcontractors USRC and A-Deck) did not exercise control over the plaintiff, the area or the work:

… [T]he Labor Law § 241(6) claim should be dismissed because neither USRC nor A-Deck may be held liable under that statute. “Labor Law § 241(6) does not automatically apply to all subcontractors on a site or in the chain of command'” … . “Rather, for liability under the statute to attach to a defendant, a plaintiff must show that the defendant exercised control either over the plaintiff, the specific work area involved or the work that gave rise to the injury” … . Here, there is no evidence that either USRC or A-Deck exercised any control over the plaintiff, the specific work area involved or the work that gave rise to plaintiff’s injury.

The Labor Law § 200 claim should also be dismissed as neither USRC nor A-Deck may be held liable under that statute. “Section 200 of the Labor Law merely codified the common-law duty imposed upon an owner or general contractor to provide construction site workmen with a safe place to work” … . “An implicit precondition to this duty to provide a safe place to work is that the party charged with that responsibility have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition”  … . Here, there is no evidence that either USRC or A-Deck had the authority to control the activity that brought about plaintiff’s injury. Adagio v New York State Urban Dev. Corp., 2018 NY Slip Op 03744,  First Dept 5-24-18

​LABOR LAW-CONSTRUCTION LAW (ACCIDENT DID NOT INVOLVE AN ELEVATION-RELATED RISK, DEFENDANT SUBCONTRACTORS DID NOT EXERCISE CONTROL OF THE PLAINTIFF, THE AREA OR THE WORK, DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (FIRST DEPT))/SUBCONTRACTORS (LABOR LAW-CONSTRUCTION LAW, ACCIDENT DID NOT INVOLVE AN ELEVATION-RELATED RISK, DEFENDANT SUBCONTRACTORS DID NOT EXERCISE CONTROL OF THE PLAINTIFF, THE AREA OR THE WORK, DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (FIRST DEPT))

FALL THOUGH AN UNGUARDED FLOOR OPENING AT A CONSTRUCTION SITE IS COVERED UNDER LABOR LAW 240 (1), THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF WAS ABLE TO TIE OFF HIS HARNESS, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, noted that, although the fall through an unguarded floor opening at a construction site was covered under Labor Law 240 (1), there was a question of fact whether plaintiff was able to tie off his harness. Therefore, plaintiff’s motion for summary judgment shouldn’t have been granted:

“[A] fall through an unguarded opening in the floor of a construction site constitutes a violation of Labor Law § 240(1) only where a safety device adequate to prevent such a fall was not provided. A safety line and harness may be an adequate safety device for a person working over an open area or near an elevated edge” … . Here, the record demonstrates that although plaintiff was wearing a harness and lanyard at the time of the accident, triable issues exist as to whether static lines were in place for him to safely tie off. Maman v Marx Realty & Improvement Co., Inc., 2018 NY Slip Op 03614, First Dept 5-17-18

​LABOR LAW-CONSTRUCTION LAW (FALL THOUGH AN UNGUARDED FLOOR OPENING AT A CONSTRUCTION SITE IS COVERED UNDER LABOR LAW 240 (1), THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF WAS ABLE TO TIE OFF HIS HARNESS, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))

QUESTION OF FACT WHETHER A SAFETY DEVICE WAS REQUIRED UNDER LABOR LAW 240 (1) IN THIS FALLING OBJECT CASE, QUESTION OF FACT WHETHER A HARD HAT THAT COULD BE WORN WITH A WELDING SHIELD WAS REQUIRED UNDER LABOR LAW 241 (6) (SECOND DEPT).

The Second Department determined there was a question of fact whether a safety device was necessary in this falling object case (Labor Law 240 (1)), and there was a question of fact whether plaintiff should have been supplied with a hard hat that could be worn with a welding shield (Labor Law 241 (6)). Plaintiff had used a scissors lift to raise a part up 16 feet to where it was welded just enough to hold it in place so further welding could be done (tack welds). The scissors lift was lowered, the tack welds broke and the part fell and struck plaintiff:

… [N]either the plaintiffs nor the defendants established their prima facie entitlement to judgment as a matter of law with respect to the Labor Law § 240(1) cause of action. The parties’ submissions raised triable issues of fact as to whether the defendants were obligated to provide appropriate safety devices of the kind enumerated in Labor Law § 240(1) to secure the flange and whether the flange fell due to the absence or inadequacy of an enumerated safety device… . … [A]safety manager … testified … that “[d]epending on . . . what the operation is,” “[s]lings, chokers [can be] used to . . . hold [a flange] in place” until it is permanently welded to the pipe. While it is true that no safety device such as a sling was provided, the injured plaintiff testified at his deposition that two tack welds should have been sufficient to secure the flange. Significantly, the plaintiffs’ expert … opined that “the two tack welds should have been sufficient to hold the flange until the job was completed, unless the tack welds were defective.” Under these circumstances, a triable issue of fact exists as to whether “[t]his was . . . a situation where a hoisting or securing device of the kind enumerated in [Labor Law § 240(1)] would have been necessary or even expected” … . Contrary to the defendants’ contention, the tack welds do not constitute a safety device within the meaning of Labor Law § 240(1) … . Carlton v City of New York, 2018 NY Slip Op 03500, Second Dept 5-16-18

​LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER A SAFETY DEVICE WAS REQUIRED UNDER LABOR LAW 240 (1) IN THIS FALLING OBJECT CASE, QUESTION OF FACT WHETHER A HARD HAT THAT COULD BE WORN WITH A WELDING SHIELD WAS REQUIRED UNDER LABOR LAW 241 (6) (SECOND DEPT))/FALLING OBJECTS (LABOR LAW-CONSTRUCTION LAW, QUESTION OF FACT WHETHER A SAFETY DEVICE WAS REQUIRED UNDER LABOR LAW 240 (1) IN THIS FALLING OBJECT CASE, QUESTION OF FACT WHETHER A HARD HAT THAT COULD BE WORN WITH A WELDING SHIELD WAS REQUIRED UNDER LABOR LAW 241 (6) (SECOND DEPT))

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MOTORIZED SCAFFOLD BECAME STUCK AND PLAINTIFF WAS INJURED PUSHING IT FREE, THE INJURY FELL WITHIN THE GRAVITY-RELATED PROTECTIONS OF LABOR LAW 240 (1), PLAINTIFF’S MOTION TO AMEND HIS BILL OF PARTICULARS TO ADD AN ALLEGED VIOLATION OF THE INDUSTRIAL CODE SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED (FIRST DEPT).

… [T]he incident in which plaintiff was injured falls within the ambit of Labor Law § 240(1), because the scaffold proved inadequate to shield plaintiff from ” harm directly flowing from the application of the force of gravity to an object or person'” … . The force of gravity caused the scaffold to swing into the recessed areas between the spandrels, necessitating that plaintiff and his coworker use their backs to exert force to swing the scaffold out again. Nevertheless, neither side is entitled to summary judgment, because an issue of fact exists as to whether plaintiff’s negligence was the sole proximate cause of his injuries… . The testimony of plaintiff and his foreman conflict as to whether plaintiff had been instructed to push off the scaffold in the manner described. …

The court improvidently exercised its discretion in denying plaintiff’s motion for leave to amend his bill of particulars to add allegations that 2008 Building Code of New York City (Administrative Code of City of NY) § 3314.10.1 was violated … . Although plaintiff did not provide an excuse for his delay in seeking leave, the delay was relatively short, and defendants demonstrated no prejudice. The allegation that section 3314.10.1 was violated is consistent with plaintiff’s original theory that the scaffold, as installed, was deficient and inadequate. That section mandated that suspended scaffolds “be erected and operated in such a manner that suspension elements are vertical and in a plane parallel to the wall at all times.” Further, the evidence required to support this new allegation is contained in the record. Galvez v Columbus 95th St. LLC, 2018 NY Slip Op 03484, First Dept 5-15-18

​LABOR LAW-CONSTRUCTION LAW (MOTORIZED SCAFFOLD BECAME STUCK AND PLAINTIFF WAS INJURED PUSHING IT FREE, THE INJURY FELL WITHIN THE GRAVITY-RELATED PROTECTIONS OF LABOR LAW 240 (1), PLAINTIFF’S MOTION TO AMEND HIS BILL OF PARTICULARS TO ADD AN ALLEGED VIOLATION OF THE INDUSTRIAL CODE SHOULD HAVE BEEN GRANTED (FIRST DEPT))/CIVIL PROCEDURE (AMEND BILL OF PARTICULARS, LABOR LAW-CONSTRUCTION LAW, MOTORIZED SCAFFOLD BECAME STUCK AND PLAINTIFF WAS INJURED PUSHING IT FREE, THE INJURY FELL WITHIN THE GRAVITY-RELATED PROTECTIONS OF LABOR LAW 240 (1), PLAINTIFF’S MOTION TO AMEND HIS BILL OF PARTICULARS TO ADD AN ALLEGED VIOLATION OF THE INDUSTRIAL CODE SHOULD HAVE BEEN GRANTED (FIRST DEPT))/BILL OF PARTICULARS (MOTION TO AMEND,  LABOR LAW-CONSTRUCTION LAW, MOTORIZED SCAFFOLD BECAME STUCK AND PLAINTIFF WAS INJURED PUSHING IT FREE, THE INJURY FELL WITHIN THE GRAVITY-RELATED PROTECTIONS OF LABOR LAW 240 (1), PLAINTIFF’S MOTION TO AMEND HIS BILL OF PARTICULARS TO ADD AN ALLEGED VIOLATION OF THE INDUSTRIAL CODE SHOULD HAVE BEEN GRANTED (FIRST DEPT))/SCAFFOLDS (LABOR LAW-CONSTRUCTION LAW, MOTORIZED SCAFFOLD BECAME STUCK AND PLAINTIFF WAS INJURED PUSHING IT FREE, THE INJURY FELL WITHIN THE GRAVITY-RELATED PROTECTIONS OF LABOR LAW 240 (1), PLAINTIFF’S MOTION TO AMEND HIS BILL OF PARTICULARS TO ADD AN ALLEGED VIOLATION OF THE INDUSTRIAL CODE SHOULD HAVE BEEN GRANTED (FIRST DEPT))

WHILE WORKING ON A SIGN AT EYE LEVEL PLAINTIFF SLIPPED OFF A LANDSCAPING ROCK WHICH HE DID NOT NEED TO STAND ON TO DO THE WORK, PLAINTIFF’S LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION PROPERLY DISMISSED (FOURTH DEPT).

The Fourth Department determined plaintiff’s Labor Law 240 (1) and 241 (6) causes of action were properly dismissed. Plaintiff slipped off a landscaping rock while working on a business sign. Plaintiff did not need to stand on the rock to do the work, which involved removing letters from the sign. The Labor Law 241 (6) causes of action were not viable because plaintiff did not alleged the rock was slippery or that he tripped over the rock, plaintiff was not engaged in demolition work, and the rock could not be considered debris:

… [T]he court properly denied that part of his motion and granted those parts of defendants’ motions with respect to the Labor Law § 240 (1) cause of action. The record establishes that plaintiff was not “obliged to work at an elevation”… , which is a necessary element for recovery under section 240 (1). Indeed, plaintiff’s own deposition testimony submitted in support of his motion established that the work he was performing was at eye level and that he could have reached the sign from the ground. Thus, inasmuch as it was not necessary for plaintiff to stand on the rock to perform his work, he was not exposed to an elevation-related hazard of the type contemplated by section 240 (1) … . Even assuming, arguendo, that a safety device was required to protect plaintiff from such a hazard, we note that plaintiff further testified during his deposition that either of the A-frame ladders that had been provided for his use probably could have straddled the rock, but he thought that a ladder was not necessary … . Maracle v Autoplace Infiniti, Inc., 2018 NY Slip Op 03252, Fourth Dept 5-4-18

​LABOR LAW-CONSTRUCTION LAW (WHILE WORKING ON A SIGN AT EYE LEVEL PLAINTIFF SLIPPED OFF A LANDSCAPING ROCK WHICH HE DID NOT NEED TO STAND ON TO DO THE WORK, PLAINTIFF’S LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION PROPERLY DISMISSED (FOURTH DEPT))

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