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INJURY FROM A SAFETY BAR IN A BOBCAT WHICH FELL AFTER PLAINTIFF RAISED IT TO STEP OUT OF THE MACHINE DID NOT RESULT FROM A SIGNIFICANT ELEVATION DIFFERENTIAL WITHIN THE MEANING OF LABOR LAW 240 (1), LABOR LAW 241 (6) CAUSES OF ACTION WERE VIABLE HOWEVER (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined defendant’s motion for summary judgment on plaintiff’s Labor Law 240 (1) cause of action should have been granted, but the Labor Law 241 (6) causes of action were viable. Plaintiff was injured when a safety bar in a Bobcat fell and struck him. The safety bar lowers onto the operator’s lap when the Bobcat is used. The bar fell after plaintiff raised it to step out of the machine:

… [T]he court properly granted defendants’ motion with respect to the Labor Law § 240 (1) claim because plaintiff was not injured as the result of any ” physically significant elevation differential’ ” … . We further conclude that, contrary to defendants’ contention on their appeal, the court properly denied their motion with respect to the section 241 (6) claim insofar as it alleged a violation of 12 NYCRR 23-9.2 (a) because there are triable issues of fact whether plaintiff’s employer had actual notice of a structural defect or unsafe condition regarding the safety bar … . Finally, we agree with plaintiffs on their cross appeal that the court erred in granting defendants’ motion with respect to the section 241 (6) claim insofar as it alleges a violation of 12 NYCRR 23-1.5 (c) (3) because that regulation is sufficiently specific to support a claim under section 241 (6) … . Salerno v Diocese of Buffalo, N.Y., 2018 NY Slip Op 03251, Fourth Dept 5-4-18

​LABOR LAW-CONSTRUCTION LAW (INJURY FROM A SAFETY BAR IN A BOBCAT WHICH FELL AFTER PLAINTIFF RAISED IT TO STEP OUT OF THE MACHINE DID NOT RESULT FROM A SIGNIFICANT ELEVATION DIFFERENTIAL WITHIN THE MEANING OF LABOR LAW 240 (1), LABOR LAW 241 (6) CAUSES OF ACTION WERE VIABLE HOWEVER (FOURTH DEPT))/BOBCATS (LABOR LAW-CONSTRUCTION LAW, INJURY FROM A SAFETY BAR IN A BOBCAT WHICH FELL AFTER PLAINTIFF RAISED IT TO STEP OUT OF THE MACHINE DID NOT RESULT FROM A SIGNIFICANT ELEVATION DIFFERENTIAL WITHIN THE MEANING OF LABOR LAW 240 (1), LABOR LAW 241 (6) CAUSES OF ACTION WERE VIABLE HOWEVER (FOURTH DEPT))

PLAINTIFF, WHO WAS WORKING AT GROUND LEVEL, WAS STRUCK ON THE HEAD BY A TIRE RIM WHICH WAS BLOWN OFF THE ROOF IN HEAVY WINDS, THE TIRE RIM REQUIRED SECURING AND NO SAFETY DEVICE WAS EMPLOYED, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff (Wellington) was entitled to summary judgment on his Labor Law 240 (1) cause of action. Plaintiff, who was working at ground level, was struck on his head by a 25 to 30 pound tire rim that blew off the roof of the building in strong winds. No one was working on the roof due to the wind. The roofing contractor was defendant Tower. With respect to the applicability of Labor Law 240 (1), the court explained:

The statutory protections arise when “the falling of an object is related to a significant risk inherent in the relative elevation at which materials or loads must be positioned or secured” … . The object must have been “material being hoisted or a load that required securing for the purposes of the undertaking,” and it must have fallen “because of the absence or inadequacy of a safety device of the kind enumerated in the statute”… . Here, a significant elevation-related risk was inherent in the placement of the tire rim on a roof several stories above an area where others were working, particularly in windy conditions. The tire rim, as part of a safety system mandated by federal regulations, was an integral part of Tower’s undertaking in renovating the roof, and, because of the hazard created by the elevation differential, it plainly “required securing for the purposes of [that] undertaking” … .

As for the absence or inadequacy of a safety device, several witnesses testified that tire rims were commonly used in the industry as supports for safety warning systems like the one at issue here, and that cinder blocks and sandbags were sometimes used to secure them by adding additional weight. Tower’s president testified, however, that it was not Tower’s practice to use such securing devices because a tire rim’s weight was enough to keep it from falling. In effect, Tower relied upon the tire rim’s heaviness as a substitute for a safety device — a method that “clearly failed in its core objective of preventing the [tire rim] from falling because [it], in fact, fell, injuring [Wellington]” … . Wellington v Christa Constr. LLC, 2018 NY Slip Op 03199, Third Dept 5-3-18

​LABOR LAW-CONSTRUCTION LAW (FALLING OBJECTS, PLAINTIFF, WHO WAS WORKING AT GROUND LEVEL, WAS STRUCK ON THE HEAD BY A TIRE RIM WHICH WAS BLOWN OFF THE ROOF IN HEAVY WINDS, THE TIRE RIM REQUIRED SECURING AND NO SAFETY DEVICE WAS EMPLOYED, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (THIRD DEPT))/FALLING OBJECTS (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF, WHO WAS WORKING AT GROUND LEVEL, WAS STRUCK ON THE HEAD BY A TIRE RIM WHICH WAS BLOWN OFF THE ROOF IN HEAVY WINDS, THE TIRE RIM REQUIRED SECURING AND NO SAFETY DEVICE WAS EMPLOYED, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (THIRD DEPT))

THE MERE FACT THAT PLAINTIFF FELL FROM AN A-FRAME LADDER IS NOT ENOUGH TO WARRANT SUMMARY JUDGMENT IN FAVOR OF THE PLAINTIFF ON A LABOR LAW 240(1) CAUSE OF ACTION, PLAINTIFF’S MOTION PROPERLY DENIED BUT DEFENDANT’S MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department determined defendant’s motion for summary judgment on plaintiff’s Labor Law 240 (1) cause of action in this ladder-fall case should not have been granted. Plaintiff testified the A-frame ladder, which he had used before, shook and leaned before he fell. He also testified he did not notice any defects in the ladder. The Second Department held that plaintiff’s motion for summary judgment was properly denied (but defendant’s motion should not have been granted):

“Under Labor Law § 240(1), owners and general contractors, and their agents, have a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites” … . “To prevail on a Labor Law § 240(1) cause of action, a plaintiff must establish that the statute was violated and that the violation was a proximate cause of his or her injuries” … . The mere fact that a plaintiff fell from a ladder does not, in and of itself, establish that proper protection was not provided, and whether a particular safety device provided proper protection is generally a question of fact for a jury … . Here, the plaintiff’s own submissions demonstrated that there are triable issues of fact as to how this accident occurred and it cannot be concluded, as a matter of law, that the alleged failure to provide the plaintiff with proper protection proximately caused his injuries … . Accordingly, we agree with the Supreme Court’s denial of the plaintiff’s motion without regard to the sufficiency of the opposing papers… .

In light of the inconsistencies as to how this accident occurred, we disagree with the Supreme Court’s determination to grant that branch of the defendants’ motion which was for summary judgment dismissing the Labor Law § 240(1) cause of action. On this record, the defendants failed to demonstrate as a matter of law that the ladder provided proper protection, or that the plaintiff was the sole proximate cause of his injuries … . Yao Zong Wu v Zhen Jia Yang, 2018 NY Slip Op 03169, Second Dept 5-2-18

​LABOR LAW-CONSTRUCTION LAW (THE MERE FACT THAT PLAINTIFF FELL FROM AN A-FRAME LADDER IS NOT ENOUGH TO WARRANT SUMMARY JUDGMENT IN FAVOR OF THE PLAINTIFF ON A LABOR LAW 240(1) CAUSE OF ACTION, PLAINTIFF’S MOTION PROPERLY DENIED BUT DEFENDANT’S MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/LADDERS (LABOR LAW-CONSTRUCTION LAW, THE MERE FACT THAT PLAINTIFF FELL FROM AN A-FRAME LADDER IS NOT ENOUGH TO WARRANT SUMMARY JUDGMENT IN FAVOR OF THE PLAINTIFF ON A LABOR LAW 240(1) CAUSE OF ACTION, PLAINTIFF’S MOTION PROPERLY DENIED BUT DEFENDANT’S MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

ALTHOUGH THERE WERE NO GUARD RAILS ON THE SCAFFOLD, PLAINTIFF DID NOT TIE OFF HIS HARNESS AND LANYARD, QUESTION OF FACT WHETHER PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF HIS INJURY FROM A FALL, SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DENIED (FOURTH DEPT).

The Fourth Department determined there was a question of fact whether plaintiff’s conduct (not tying off a safety harness) was the sole proximate cause of his injuries from a fall. Therefore his motion for summary judgment on his Labor Law 240(1) cause of action was properly denied:

Defendants had engaged claimant’s employer to sandblast and repaint the overpass. In order to perform the work, a truck known as a V-Deck was parked underneath the overpass. The truck had wings that fold out to provide a platform for the blasters, and aluminum scaffolding was erected on the wings of the truck. The scaffolding had no guardrail. Claimant was, however, provided with safety equipment, including a safety harness with a six-foot lanyard. While blasting one evening, plaintiff fell 15 feet to the pavement. His safety harness was not tied off. …

… [C]laimant acknowledged that he had a safety harness with a six-foot lanyard, that he had previously used it on the same job, and that he “probably” could have tied it off to the cross-bracing prior to his fall. Indeed, claimant correctly concedes on this appeal that there is an issue of fact whether adequate tie-off points were available. Furthermore, claimant testified that, if he had tied his six-foot lanyard off to the cross-bracing, he “wouldn’t have fallen” 15 feet to the pavement. Weitzel v State of New York, 2018 NY Slip Op 02946, Fourth Dept 4-27-18

​LABOR LAW-CONSTRUCTION LAW (ALTHOUGH THERE WERE NO GUARD RAILS ON THE SCAFFOLD, PLAINTIFF DID NOT TIE OFF HIS HARNESS AND LANYARD, QUESTION OF FACT WHETHER PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF HIS INJURY FROM A FALL, SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DENIED (FOURTH DEPT))/SCAFFOLDS (LABOR LAW-CONSTRUCTION LAW, ALTHOUGH THERE WERE NO GUARD RAILS ON THE SCAFFOLD, PLAINTIFF DID NOT TIE OFF HIS HARNESS AND LANYARD, QUESTION OF FACT WHETHER PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF HIS INJURY FROM A FALL, SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DENIED (FOURTH DEPT))/SOLE PROXIMATE CAUSE (LABOR LAW-CONSTRUCTION LAW, ALTHOUGH THERE WERE NO GUARD RAILS ON THE SCAFFOLD, PLAINTIFF DID NOT TIE OFF HIS HARNESS AND LANYARD, QUESTION OF FACT WHETHER PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF HIS INJURY FROM A FALL, SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DENIED (FOURTH DEPT))

,

QUESTION OF FACT WHETHER PLAINTIFF WAS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN HE CLIMBED THE LADDER FROM WHICH HE FELL, THUS PLACING THE INCIDENT OUTSIDE THE PROTECTION OF LABOR LAW 240 (1) (FIRST DEPT).

The First Department determined that there was a question of fact whether plaintiff was acting within the scope of his employment when he climbed a ladder to troubleshoot a cable installation problem:

Plaintiff commenced this action to recover for personal injuries he allegedly sustained when he fell from a utility pole while attempting to troubleshoot a cable installation activation that did not work. However, his supervisor submitted an affidavit asserting, inter alia, that plaintiff’s sole job functions were as a manager, providing administrative services and training, assessing materials and equipment needed for a job, and occasionally following up with an activation from ground level only, but that in no event were his duties to entail climbing any poles.

Supreme Court correctly determined that issues of fact exist as to whether the aerial work plaintiff contends he was performing when he fell was outside the scope of his employment and thus outside the protection of Labor Law § 240(1) … . McCue v Cablevision Sys. Corp., 2018 NY Slip Op 02902, First Dept 4-26-18

​LABOR LAW-CONSTRUCTION LAW (SCOPE OF EMPLOYMENT, QUESTION OF FACT WHETHER PLAINTIFF WAS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN HE CLIMBED THE LADDER FROM WHICH HE FELL, THUS PLACING THE INCIDENT OUTSIDE THE PROTECTION OF LABOR LAW 240 (1) (FIRST DEPT))/EMPLOYMENT LAW (LABOR LAW-CONSTRUCTION LAW, QUESTION OF FACT WHETHER PLAINTIFF WAS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN HE CLIMBED THE LADDER FROM WHICH HE FELL, THUS PLACING THE INCIDENT OUTSIDE THE PROTECTION OF LABOR LAW 240 (1) (FIRST DEPT))

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INCIDENT REPORTS DID NOT PROVIDE THE CITY WITH NOTICE OF THE ESSENTIAL FACTS OF PLAINTIFF’S NEGLIGENCE AND LABOR LAW CLAIMS, PETITION TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT).

The Second Department determined the incident reports concerning plaintiff’s injury when he was struck by a chain link fence he was installing did not provide the city with notice of the essential elements of his negligence and Labor Law claims. Therefore the petition for leave to file a late notice of claim was properly denied:

… [T]he incident reports … were insufficient to provide the respondents with actual knowledge of the essential facts underlying the petitioner’s claim. These reports merely indicated that the petitioner injured his shoulder when the temporary chain link fence was blown over by the wind or came down on him as he was working on the fence. The reports made no reference to the claims listed in the proposed notice of claim, inter alia, that the respondents were negligent in allowing a dangerous condition to exist, in failing to provide protective and safety devices, and in failing to properly secure or hoist the fence, and violated certain sections of the Labor Law and unspecified sections of the Industrial Code … .

Furthermore, the petitioner failed to proffer any excuse for the failure to serve a timely notice of claim … . Moreover, the petitioner presented no “evidence or plausible argument” that his delay in serving a notice of claim did not substantially prejudice the respondents in defending on the merits … . Matter of Wilson v City of New York, 2018 NY Slip Op 02794, Second Dept 4-25-18

​MUNICIPAL LAW (NOTICE OF CLAIM, INCIDENT REPORTS DID NOT PROVIDE THE CITY WITH NOTICE OF THE ESSENTIAL FACTS OF PLAINTIFF’S NEGLIGENCE AND LABOR LAW CLAIMS, PETITION TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, NEGLIGENCE, INCIDENT REPORTS DID NOT PROVIDE THE CITY WITH NOTICE OF THE ESSENTIAL FACTS OF PLAINTIFF’S NEGLIGENCE AND LABOR LAW CLAIMS, PETITION TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/NEGLIGENCE (MUNICIPAL LAW,  INCIDENT REPORTS DID NOT PROVIDE THE CITY WITH NOTICE OF THE ESSENTIAL FACTS OF PLAINTIFF’S NEGLIGENCE AND LABOR LAW CLAIMS, PETITION TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/LABOR LAW-CONSTRUCTION LAW (MUNICIPAL LAW, NOTICE OF CLAIM, INCIDENT REPORTS DID NOT PROVIDE THE CITY WITH NOTICE OF THE ESSENTIAL FACTS OF PLAINTIFF’S NEGLIGENCE AND LABOR LAW CLAIMS, PETITION TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/ACCIDENT REPORTS (MUNICIPAL LAW, NOTICE OF CLAIM, INCIDENT REPORTS DID NOT PROVIDE THE CITY WITH NOTICE OF THE ESSENTIAL FACTS OF PLAINTIFF’S NEGLIGENCE AND LABOR LAW CLAIMS, PETITION TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/INCIDENT REPORTS (MUNICIPAL LAW, NOTICE OF CLAIM, INCIDENT REPORTS DID NOT PROVIDE THE CITY WITH NOTICE OF THE ESSENTIAL FACTS OF PLAINTIFF’S NEGLIGENCE AND LABOR LAW CLAIMS, PETITION TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))

PLAINTIFF FELL FROM A LADDER WHEN A TIRE STORED ON THE ROOF OF A SHED FELL AND STRUCK THE LADDER, THE TIRE WAS NOT BEING HOISTED AND DID NOT NEED TO BE SECURED FOR THE PURPOSES OF PLAINTIFF’S WORK, THE ACCIDENT THEREFORE WAS NOT COVERED UNDER LABOR LAW 240(1) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the criteria for a “falling object” case under Labor Law 240(1) had not been met. Tires were stored on the roof of a shed. As plaintiff was climbing a ladder to the roof of the shed, a tire struck the ladder and plaintiff fell. Because the tire was not being hoisted and did not need to be secured, Labor Law 240(1) did not apply to the facts:

“To prevail on a cause of action pursuant to section 240(1) [of the Labor Law] in a falling object case, the injured worker must demonstrate the existence of a hazard contemplated under that statute and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein” … . “This requires a showing 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 apply in situations in which a hoisting or securing device of the type enumerated in the statute would not be necessary or expected'”… .

Here, the evidence adduced at trial, viewed in the light most favorable to the plaintiff, demonstrated that the tires were not materials that were being hoisted or secured for the purposes of the undertaking, nor was it expected, under the circumstances of this case, that the tires would require securing for the purposes of the undertaking at the time one or more tires fell … . Therefore, “the special protection’ of Labor Law § 240(1) was not implicated” … . Ruiz v Ford, 2018 NY Slip Op 02820, Second Dept 4-25-18

​LABOR LAW-CONSTRUCTION LAW (PLAINTIFF FELL FROM A LADDER WHEN A TIRE STORED ON THE ROOF OF A SHED FELL AND STRUCK THE LADDER, THE TIRE WAS NOT BEING HOISTED AND DID NOT NEED TO BE SECURED FOR THE PURPOSES OF PLAINTIFF’S WORK, THE ACCIDENT THEREFORE WAS NOT COVERED UNDER LABOR LAW 240(1) (SECOND DEPT))/FALLING OBJECTS (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF FELL FROM A LADDER WHEN A TIRE STORED ON THE ROOF OF A SHED FELL AND STRUCK THE LADDER, THE TIRE WAS NOT BEING HOISTED AND DID NOT NEED TO BE SECURED FOR THE PURPOSES OF PLAINTIFF’S WORK, THE ACCIDENT THEREFORE WAS NOT COVERED UNDER LABOR LAW 240(1) (SECOND DEPT))

PLAINTIFF, WHO FELL FROM AN UNSECURED LADDER, WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CLAIM, THERE WAS A QUESTION OF FACT ON THE LABOR LAW 241(6) CAUSE OF ACTION WHICH ALLEGED THE LADDER SLIPPED ON A WET FLOOR (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff, who fell from an unsecured ladder, was entitled to summary judgment on his Labor Law 240(1) claim. The court further found there was an issue of fact on plaintiff’s Labor law 241(6) claim because of evidence the ladder slipped on a wet floor:

Plaintiff established prima facie a violation of Labor Law § 240(1) through his testimony that he was caused to fall when the unsecured ladder on which he was standing suddenly slipped out from under him … .

In opposition, defendant failed to raise an issue of fact as to whether plaintiff was the sole proximate cause of the accident. There is no evidence in the record that there were other readily available safety devices that would have been adequate for plaintiff’s work … . In addition, defendant’s expert’s opinion that the accident was caused by plaintiff’s misuse of the ladder was entirely speculative, since it was based on his visit to the accident site almost two years after the accident occurred … .

Defendant also failed to show that plaintiff disregarded specific instructions not to use the ladder or do the work he was performing at the time of the accident … . Plaintiff’s coworker’s deposition testimony establishes that plaintiff was not given any such instructions before he ascended the ladder. The coworker’s subsequent affidavit, which conflicts with his deposition testimony on this issue, creates only a feigned issue of fact … .

Summary dismissal of the Labor Law § 241(6) claim predicated on an alleged violation of Industrial Code (12 NYCRR) § 23-1.21(b)(4)(ii) is precluded by an issue of fact as to whether the accident was caused by a wet condition of the floor at the time that the ladder slipped out from underneath plaintiff … . Tuzzolino v Consolidated Edison Co. of N.Y., 2018 NY Slip Op 02755, First Dept 4-24-18

​LABOR LAW-CONSTRUCTION LAW (PLAINTIFF, WHO FELL FROM AN UNSECURED LADDER, WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CLAIM, THERE WAS A QUESTION OF FACT ON THE LABOR LAW 241(6) CAUSE OF ACTION WHICH ALLEGED THE LADDER SLIPPED ON A WET FLOOR (FIRST DEPT))/LADDERS (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF, WHO FELL FROM AN UNSECURED LADDER, WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CLAIM, THERE WAS A QUESTION OF FACT ON THE LABOR LAW 241(6) CAUSE OF ACTION WHICH ALLEGED THE LADDER SLIPPED ON A WET FLOOR (FIRST DEPT))

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QUESTIONS OF FACT WHETHER THE WORK ON A BOILER WAS ROUTINE MAINTENANCE (NOT COVERED BY LABOR LAW 240 (1)) AND WHETHER A SAFETY DEVICE WAS REQUIRED, CONTRACTOR’S DEFAULT CONSTITUTED AN ADMISSION TO THE ALLEGATIONS IN THE COMPLAINT, INCLUDING THAT PLAINTIFF SUFFERED A GRAVE INJURY (TAKING THE INJURY OUT FROM UNDER THE WORKERS’ COMPENSATION LAW) (SECOND DEPT).

The Second Department determined there were questions of fact about whether the disassembly of a boiler was maintenance (not covered by Labor Law 240(1)) or repair (which is covered) and whether a safety device was required to stabilize a portion of the boiler which fell and injured plaintiff. The court also determined that the striking of the contractor’s (Sitework’s) answer for failure to comply with discovery demands resulted in an admission to the allegations in the complaint, including the allegation of grave injury (taking the injury out from under the Workers’ Compensation Law):

… [T]he plaintiff testified at his deposition that, at the time of the accident, Siteworks employees were disassembling the subject boiler section by section to fix a leak. However, the head custodian at the school where the plaintiff’s injury occurred testified at his deposition that the boiler was disassembled every summer for routine cleaning and refurbishing. The head custodian was also not aware of any problem with the boiler in need of repair during the summer of 2014, which is when the plaintiff was injured. As the record does not otherwise clarify the degree to which boiler sections are “components that require replacement in the normal course of wear and tear” … , the Supreme Court properly determined that triable issues of fact exist with respect to whether the plaintiff’s activity was covered under Labor Law § 240(1). …

Here, since Siteworks’ third-party answer has been stricken as a result of a default, it has admitted all traversable allegations in the complaint, including the basic allegations of liability and that the plaintiff sustained a grave injury. Garbett v Wappingers Cent. Sch. Dist., 2018 NY Slip Op 02600, Second Dept 4-18-18

​LABOR LAW-CONSTRUCTION LAW (QUESTIONS OF FACT WHETHER THE WORK ON A BOILER WAS ROUTINE MAINTENANCE (NOT COVERED BY LABOR LAW 240 (1)) AND WHETHER A SAFETY DEVICE WAS REQUIRED, CONTRACTOR’S DEFAULT CONSTITUTED AN ADMISSION TO THE ALLEGATIONS IN THE COMPLAINT, INCLUDING THAT PLAINTIFF SUFFERED A GRAVE INJURY (TAKING THE INJURY OUT FROM UNDER THE WORKERS’ COMPENSATION LAW) (SECOND DEPT))/CIVIL PROCEDURE (DEFAULT, QUESTIONS OF FACT WHETHER THE WORK ON A BOILER WAS ROUTINE MAINTENANCE (NOT COVERED BY LABOR LAW 240 (1)) AND WHETHER A SAFETY DEVICE WAS REQUIRED, CONTRACTOR’S DEFAULT CONSTITUTED AN ADMISSION TO THE ALLEGATIONS IN THE COMPLAINT, INCLUDING THAT PLAINTIFF SUFFERED A GRAVE INJURY (TAKING THE INJURY OUT FROM UNDER THE WORKERS’ COMPENSATION LAW) (SECOND DEPT))/WORKERS’ COMPENSATION LAW (GRAVE INJURY, QUESTIONS OF FACT WHETHER THE WORK ON A BOILER WAS ROUTINE MAINTENANCE (NOT COVERED BY LABOR LAW 240 (1)) AND WHETHER A SAFETY DEVICE WAS REQUIRED, CONTRACTOR’S DEFAULT CONSTITUTED AN ADMISSION TO THE ALLEGATIONS IN THE COMPLAINT, INCLUDING THAT PLAINTIFF SUFFERED A GRAVE INJURY (TAKING THE INJURY OUT FROM UNDER THE WORKERS’ COMPENSATION LAW) (SECOND DEPT))/GRAVE INJURY (WORKERS’ COMPENSATION LAW, QUESTIONS OF FACT WHETHER THE WORK ON A BOILER WAS ROUTINE MAINTENANCE (NOT COVERED BY LABOR LAW 240 (1)) AND WHETHER A SAFETY DEVICE WAS REQUIRED, CONTRACTOR’S DEFAULT CONSTITUTED AN ADMISSION TO THE ALLEGATIONS IN THE COMPLAINT, INCLUDING THAT PLAINTIFF SUFFERED A GRAVE INJURY (TAKING THE INJURY OUT FROM UNDER THE WORKERS’ COMPENSATION LAW) (SECOND DEPT))

PLAINTIFF WAS NOT ENGAGED IN ‘CLEANING’ WITHIN THE MEANING OF LABOR LAW 240 (1) WHEN SHE FELL FROM A LADDER, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT PROPERLY GRANTED (SECOND DEPT).

The Second Department determined the “cleaning” being done by plaintiff when she fell from a ladder was not covered by Labor Law 240 (1):

The plaintiff was an employee of a cleaning services company which was hired to clean a condominium apartment following a renovation by the defendant Morgan Interiors, Inc. (hereinafter Morgan Interiors). On the day of the occurrence in question, the plaintiff arrived at the apartment along with a cleaning crew, where she was directed by her supervisor to clean certain floor-to-ceiling cabinets and was given a stepladder and a cloth for this purpose. …

The determination of whether an activity may be considered “cleaning” within the meaning of Labor Law § 240(1), as opposed to routine maintenance, has been held to depend on four factors, considered as a whole. An activity will not be considered “cleaning” under the statute (1) if it is “routine,” that is, it is performed on a daily, weekly, or other relatively frequent recurring basis as part of ordinary maintenance; (2) if it does not require specialized equipment or expertise, nor unusual deployment of labor; (3) if it involves insignificant elevation risks comparable to those encountered during typical domestic or household cleaning, and (4) if it is unrelated to any ongoing construction, renovation, painting, alteration, or repair project … .

Here, the moving defendants demonstrated, prima facie, that the plaintiff was not engaged in “cleaning” within the meaning of Labor Law § 240(1), as her work did not require specialized equipment, and was unrelated to any ongoing construction or renovation of the apartment. Holguin v Barton, 2018 NY Slip Op 02602, Second Dept 4-18-18

​LABOR LAW-CONSTRUCTION LAW (PLAINTIFF WAS NOT ENGAGED IN ‘CLEANING’ WITHIN THE MEANING OF LABOR LAW 240 (1) WHEN SHE FELL FROM A LADDER, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT PROPERLY GRANTED (SECOND DEPT))/CLEANING (LABOR LAW 240 (1), PLAINTIFF WAS NOT ENGAGED IN ‘CLEANING’ WITHIN THE MEANING OF LABOR LAW 240 (1) WHEN SHE FELL FROM A LADDER, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT PROPERLY GRANTED (SECOND DEPT))

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