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PLAINTIFF, WHO TRIPPED ON AN EXTENSION CORD AND FELL DOWN A STAIRWELL, WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department determined plaintiff was entitled summary judgment on his Labor Law 240(1) cause of action. He was working in a stairwell and tripped over an extension cord:

Because the stairway was an elevated surface on which plaintiff was required to work, and also the sole means of access to his work area, it constituted a safety device within the meaning of the statute … , as well as an elevated work platform that required provision of an adequate safety device … . Under either theory, it is clear that plaintiff’s fall was the direct result of absence of an adequate safety device, and thus, plaintiffs are entitled to partial summary judgment on the section 240(1) cause of action. That plaintiff tripped on an extension cord does not take the case out of the ambit of Labor Law § 240(1)… , and the fact that the staircase from which plaintiff fell was a permanent structure of the building does not remove this case from the coverage of Labor Law § 240(1) … . Conlon v Carnegie Hall Socy., Inc., 2018 NY Slip Op 02268, First Dept 3-29-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF, WHO TRIPPED ON AN EXTENSION CORD AND FELL DOWN A STAIRWELL, WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT))/STAIRS (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF, WHO TRIPPED ON AN EXTENSION CORD AND FELL DOWN A STAIRWELL, WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT))

PLAINTIFF WAS INJURED WHILE ON THE GROUND CUTTING A TREE, BECAUSE GRAVITY WAS NOT INVOLVED LABOR LAW 240 (1) DID NOT APPLY, BUT BECAUSE CUTTING THE TREE WAS ANCILLARY TO WORK ON A STRUCTURE, LABOR LAW 241 (6) DID APPLY (SECOND DEPT).

The Second Department, modifying Supreme Court, determined defendant’s motion for summary judgment on plaintiff’s Labor Law 240 (1) cause of action was properly granted, but defendant’s motion for summary judgment on plaintiff’s Labor Law 241 (6) cause of action should have been denied. Plaintiff was on the ground cutting a fallen tree when the tree sprang up, split and struck plaintiff’s leg. The tree had to be removed to get to the catenary wires near a railroad line. The wires are considered a “structure” within the meaning of the Labor Law. Because the accident was not the result of gravity Labor Law 240 (1) did not apply. But because removal of the tree was ancillary to work on the wires, Labor Law 241 (6) applied:

… [Defendant] did establish, prima facie, that the plaintiff’s injuries were “not the direct consequence of the application of the force of gravity to an object or person” … . Rather, the plaintiff’s injuries resulted when the tree was first propelled upward by the sudden release in tension of the catenary wires and then split in two, striking the plaintiff’s leg … . …

“Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon owners and contractors to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed” … . ” [T]he courts have generally held that the scope of Labor Law § 241(6) is governed by 12 NYCRR 23-1.4(b)(13), which defines construction work expansively'”… . Under that regulation, construction work consists of “[a]ll work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures” … . Since the plaintiff was engaged in activities ancillary to the repair of the catenary wires, the provisions of Labor Law § 241(6) are also applicable to this case. Accordingly, Metro-North failed to establish, prima facie, that Labor Law § 241(6) was inapplicable to the plaintiff’s activities, and that branch of the cross motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6) insofar as asserted against Metro-North should have been denied, regardless of the sufficiency of the plaintiff’s opposition papers … . De Jesus v Metro-N. Commuter R.R., 2018 NY Slip Op 02150, Second Dept 3-28-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF WAS INJURED WHILE ON THE GROUND CUTTING A TREE, BECAUSE GRAVITY WAS NOT INVOLVED LABOR LAW 240 (1) DID NOT APPLY, BUT BECAUSE CUTTING THE TREE WAS ANCILLARY TO WORK ON A STRUCTURE, LABOR LAW 241 (6) DID APPLY (SECOND DEPT))/TREE CUTTING (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF WAS INJURED WHILE ON THE GROUND CUTTING A TREE, BECAUSE GRAVITY WAS NOT INVOLVED LABOR LAW 240 (1) DID NOT APPLY, BUT BECAUSE CUTTING THE TREE WAS ANCILLARY TO WORK ON A STRUCTURE, LABOR LAW 241 (6) DID APPLY (SECOND DEPT))

SUMMARY JUDGMENT PROPERLY GRANTED ON THE LABOR LAW 240 (1) CAUSE OF ACTION BASED UPON A FALL FROM AN UNSECURED LADDER, IT DID NOT MATTER WHETHER PLAINTIFF LOST HIS BALANCE BEFORE OF AFTER THE LADDER WOBBLED (FIRST DEPT).

The First Department determined plaintiff’s motion for summary judgment on the Labor Law 240 (1) cause of action was properly granted. The complaint alleged the unsecured ladder wobbled while plaintiff was attempting to install steel wall panels. The court offered a particularly clear explanation of liability stemming from the use of unsecured ladders:

…[P]laintiff … was injured when he fell from an unsecured ladder while installing steel wall panels in the lobby of a building … . “It is well settled that failure to properly secure a ladder to insure that it remains steady and erect while being used, constitutes a violation of Labor Law § 240(1)” … . It is irrelevant whether plaintiff initially lost his balance before or after the ladder wobbled because it is uncontested that the precipitating cause of both was that the suction cup that he had affixed to the panel and gripped to pull the panel into place came loose … . Under either scenario, the ladder failed to remain steady under plaintiff’s weight as he performed his work. Furthermore, even if plaintiff gripped the suction cup incorrectly, causing it to come loose, any such misuse of the suction cup was not the sole proximate cause of the accident where the unsecured ladder moved … . Plywacz v 85 Broad St. LLC, 2018 NY Slip Op 01883, First Dept 3-20-18

LABOR LAW -CONSTRUCTION LAW (SUMMARY JUDGMENT PROPERLY GRANTED ON THE LABOR LAW 240 (1) CAUSE OF ACTION BASED UPON A FALL FROM AN UNSECURED LADDER, IT DID NOT MATTER WHETHER PLAINTIFF LOST HIS BALANCE BEFORE OF AFTER THE LADDER WOBBLED (FIRST DEPT))/LADDERS (LABOR LAW-CONSTRUCTION LAW SUMMARY JUDGMENT PROPERLY GRANTED ON THE LABOR LAW 240 (1) CAUSE OF ACTION BASED UPON A FALL FROM AN UNSECURED LADDER, IT DID NOT MATTER WHETHER PLAINTIFF LOST HIS BALANCE BEFORE OF AFTER THE LADDER WOBBLED (FIRST DEPT))

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DEFENDANT GENERAL CONTRACTOR DID NOT EXERCISE SUPERVISORY CONTROL OVER THE PLAINTIFF OR PLAINTIFF’S CO-WORKER WHO INJURED PLAINTIFF, THE FACT THAT DEFENDANT GENERAL CONTRACTOR SUPPLIED THE EQUIPMENT WHICH INJURED PLAINTIFF DID NOT GIVE RISE TO LIABILITY ON THE GENERAL CONTRACTOR’S PART (FOURTH DEPT).

The Fourth Department, modifying Supreme Court, granted the defendant general contractor’s motion for summary judgment in this common law negligence and Labor Law 200 action. The Fourth Department further found that the plaintiff’s Labor Law 241(6) and Vehicle and Traffic Law 388 causes of action were properly dismissed. Plaintiff worked for the property owner, GTO, and did not work for defendant general contractor. Plaintiff was injured by a GTO  co-worker who was using a piece of equipment owned by the defendant (a skid steer used in landscaping work). The defendant did not exercise supervisory control over the skid steer operator and demonstrated entrusting the skid steer to the co-worker did not constitute negligent entrustment of a dangerous instrument. The plaintiff, a landscaper, was not engaged in construction work within the meaning of Labor Law 241(6) and the skid steer was not operated on a public highway within the meaning of the Vehicle and Traffic Law:

Here, the evidence submitted by defendant established that plaintiff and the coworker were both employed by GTO, not by defendant. They were performing landscaping work in the parking lot of the complex, and were not involved in the construction work that was being performed by defendant. Defendant did not give any instructions to plaintiff and the coworker about what work to perform or how to perform their work, and no one from GTO was required to use the skid steer to perform his or her duties. The coworker chose to use the skid steer to move topsoil, and defendant permitted him to do so for such use. Although we are mindful that there might be circumstances in which a party may be said to exercise control over the manner of work based on the provision of the equipment to be used, we conclude that defendant did not exercise such control in this case … . The fact that defendant allowed a GTO employee to use its equipment to perform work on the grounds did not give defendant supervisory control over the manner in which the landscaping work was being performed by the GTO employees. To the contrary, the record establishes that defendant exercised no supervisory control over the landscaping work that was being performed by plaintiff and the coworker and, thus, defendant cannot be held liable for any injuries that were caused by the manner in which that work was being performed. Calvert v Duggan & Duggan Gen. Contr., Inc., 2018 NY Slip Op 01841, Fourth Dept 3-16-18

LABOR LAW-CONSTRUCTION LAW (DEFENDANT GENERAL CONTRACTOR DID NOT EXERCISE SUPERVISORY CONTROL OVER THE PLAINTIFF OR PLAINTIFF’S CO-WORKER WHO INJURED PLAINTIFF, THE FACT THAT DEFENDANT GENERAL CONTRACTOR SUPPLIED THE EQUIPMENT WHICH INJURED PLAINTIFF DID NOT GIVE RISE TO LIABILITY ON THE GENERAL CONTRACTOR’S PART (FOURTH DEPT))/GENERAL CONTRACTOR (LABOR LAW-CONSTRUCTION LAW, (DEFENDANT GENERAL CONTRACTOR DID NOT EXERCISE SUPERVISORY CONTROL OVER THE PLAINTIFF OR PLAINTIFF’S CO-WORKER WHO INJURED PLAINTIFF, THE FACT THAT DEFENDANT GENERAL CONTRACTOR SUPPLIED THE EQUIPMENT WHICH INJURED PLAINTIFF DID NOT GIVE RISE TO LIABILITY ON THE GENERAL CONTRACTOR’S PART (FOURTH DEPT))/VEHICLE AND TRAFFIC LAW (LABOR LAW-CONSTRUCTION LAW, DEFENDANT GENERAL CONTRACTOR DID NOT EXERCISE SUPERVISORY CONTROL OVER THE PLAINTIFF OR PLAINTIFF’S CO-WORKER WHO INJURED PLAINTIFF, THE FACT THAT DEFENDANT GENERAL CONTRACTOR SUPPLIED THE EQUIPMENT WHICH INJURED PLAINTIFF DID NOT GIVE RISE TO LIABILITY ON THE GENERAL CONTRACTOR’S PART (FOURTH DEPT))

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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, BASED UPON A FALL FROM A SCAFFOLD, PROPERLY GRANTED, DEFENDANT’S ATTEMPTS TO RELY ON AN ALLEGED HEARSAY STATEMENT BY THE PLAINTIFF TO THE EFFECT THAT HE FELL WHEN CLIMBING UP TO THE SCAFFOLD, REJECTED, NO APPLICABLE EXCEPTION TO THE HEARSAY RULE (FIRST DEPT).

The First Department determined plaintiff’s motion for summary judgment in this Labor Law 240 (1) action was properly granted. Plaintiff alleged he fell from a scaffold which did not have railings. Defendant’s attempts (for the first time on appeal) to introduce plaintiff’s alleged hearsay statement that he fell when climbing up to the scaffold were rejected:

It is undisputed that the subject scaffold did not have railings, toe boards, or cross-bracing, and there was no place for plaintiff to tie off his safety harness. As such, plaintiff established a violation of the statute. Moreover, plaintiff testified that the accident occurred when he was on the scaffold, tripped on a block, and fell backward, off the scaffold to the ground, and his worker’s compensation claim also provides that he slipped and fell while on the scaffold. This is sufficient to establish that the violation was a proximate cause of the injury … . …

[Re: plaintiff’s alleged statement:] The business record exception is inapplicable, since defendants have not submitted the incident report for the … accident. The present sense impression exception is also inapplicable, since the out-of-court statement from plaintiff to the foreman that he fell while climbing up the scaffold is not corroborated by independent evidence … . The excited utterance exception does not apply, since defendants have not provided sufficient evidence of plaintiff’s mental state or established that he made the hearsay statement to the foreman under the stress of excitement … . Furthermore, plaintiff’s statement to the foreman does not fall within the declaration against interest exception because plaintiff was available to, and did, testify as a witness; there is no evidence that plaintiff knew the statement was adverse to his interests when it was made; and the supporting circumstances do not attest to its trustworthiness or reliability … . Gomes v Pearson Capital Partners LLC, 2018 NY Slip Op 01560, First Dept 3-8-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, BASED UPON A FALL FROM A SCAFFOLD, PROPERLY GRANTED, DEFENDANT’S ATTEMPTS TO RELY ON AN ALLEGED HEARSAY STATEMENT BY THE PLAINTIFF TO THE EFFECT THAT HE FELL WHEN CLIMBING UP TO THE SCAFFOLD, REJECTED, NO APPLICABLE EXCEPTION TO THE HEARSAY RULE(FIRST DEPT))/EVIDENCE (HEARSAY, LABOR LAW-CONSTRUCTION LAW, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, BASED UPON A FALL FROM A SCAFFOLD, PROPERLY GRANTED, DEFENDANT’S ATTEMPTS TO RELY ON AN ALLEGED HEARSAY STATEMENT BY THE PLAINTIFF TO THE EFFECT THAT HE FELL WHEN CLIMBING UP TO THE SCAFFOLD, REJECTED, NO APPLICABLE EXCEPTION TO THE HEARSAY RULE(FIRST DEPT))/HEARSAY (LABOR LAW-CONSTRUCTION LAW, (PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, BASED UPON A FALL FROM A SCAFFOLD, PROPERLY GRANTED, DEFENDANT’S ATTEMPTS TO RELY ON AN ALLEGED HEARSAY STATEMENT BY THE PLAINTIFF TO THE EFFECT THAT HE FELL WHEN CLIMBING UP TO THE SCAFFOLD, REJECTED, NO APPLICABLE EXCEPTION TO THE HEARSAY RULE(FIRST DEPT))

CRITERIA FOR DETERMINING WHETHER A PARTY IS A STATUTORY AGENT OF THE OWNER IN LABOR LAW 240 (1) AND 241 (6) ACTIONS EXPLAINED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, STEMMING FROM A FALL FROM A LADDER, SHOULD NOT HAVE BEEN DENIED (FIRST DEPT).

The First Department determined Supreme Court should not have determined defendant (Rose Associates) was not a statutory agent of the owner in this Labor Law 240 (1) and 24 1 (6) action, explaining the correct criteria. In addition Supreme Court should not have denied plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action, which was based upon the allegation the ladder plaintiff was on moved:

The motion court erred in determining that Rose Associates is not an agent of defendant owner Continental Towers Condominium. Labor Law §§ 240(1) and 241(6) impose absolute liability on owners, contractors, and their agents for a statutory violation resulting in injury, regardless of whether they directed or controlled the work … . Thus…  the test of whether a defendant is a statutory agent subject to liability under those sections is not whether it actually supervised the work, but whether it had the authority to do so … . …

… [T]he court should have granted plaintiff’s cross motion, as the evidence establishes that plaintiff slipped or fell from an unsecured ladder upon which he was working because it moved … . The testimony of plaintiff’s coworker that plaintiff stated he slipped was “not inconsistent with plaintiff’s version that he slipped after the ladder moved” … . Moreover, defendants’ expert affidavits asserting that no force acted upon the ladder that could have caused it to move were speculative. Merino v Continental Towers Condominium, 2018 NY Slip Op 01549, First Dept 3-8-18

LABOR LAW-CONSTRUCTION LAW (CRITERIA FOR DETERMINING WHETHER A PARTY IS A STATUTORY AGENT OF THE OWNER IN LABOR LAW 240 (1) AND 241 (6) ACTIONS EXPLAINED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, STEMMING FROM A FALL FROM A LADDER, SHOULD NOT HAVE BEEN DENIED (FIRST DEPT))/STATUTORY AGENT (LABOR LAW-CONSTRUCTION LAW, CRITERIA FOR DETERMINING WHETHER A PARTY IS A STATUTORY AGENT OF THE OWNER IN LABOR LAW 240 (1) AND 241 (6) ACTIONS EXPLAINED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, STEMMING FROM A FALL FROM A LADDER, SHOULD NOT HAVE BEEN DENIED (FIRST DEPT))/LADDERS (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, STEMMING FROM A FALL FROM A LADDER, SHOULD NOT HAVE BEEN DENIED (FIRST DEPT))

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NEW YORK TRANSIT AUTHORITY WAS NOT ENTITLED TO DISMISSAL OF THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION ON COLLATERAL ESTOPPEL, GOVERNMENTAL IMMUNITY OR FACTUAL GROUNDS, RELEVANT LAW SUCCINCTLY EXPLAINED (SECOND DEPT).

The Second Department, modifying Supreme Court, determined that the defendant New York State Transit Authority (NYSTA) was not entitled to dismissal of the Labor Law 200 and common law negligence claims on collateral estoppel, governmental immunity, or factual grounds. The decision includes good explanations of all the legal principles involved. Claimants lost summary judgment motions in a lawsuit against other defendants in state court, and then brought this action against the NYSTA in the Court of Claims. The Second Department held that the standards for liability of the NYSTA as the owner of the construction site were not the same as the standards of liability for the defendants in the state action. Therefore the collateral estoppel doctrine did not apply. The court also held that the NYSTA was acting in a proprietary, not a governmental, capacity. Therefore governmental immunity was not invoked:

Regarding whether NYSTA had the authority to exercise supervision or control over the performance of the claimants’ work, we find that it met its prima facie burden of demonstrating that it had no such authority … . In opposition, however, the claimants raised a triable issue of fact regarding NYSTA’s involvement at the work site … . Regarding the alleged dangerous condition of the work site itself, NYSTA, in support of its motion, argued only that it could not be held liable for failing to remediate soil containing chemicals because the claimants’ job was to remedy that very condition. We find that NYSTA failed to demonstrate, prima facie, that the claimants were injured from defective or hazardous conditions that were part of or inherent in the work they were performing… , or from conditions that were readily observable… . In addition, the claimants raised a triable issue of fact as to whether their injuries were caused by a hazardous condition that they were not specifically hired to remediate … . Indeed, whether a dangerous condition is within the scope of the work an employee or contractor is hired to perform is a fact-specific inquiry … . Grasso v New York State Thruway Auth., 2018 NY Slip Op 01453, Second Dept 3-7-18

LABOR LAW-CONSTRUCTION LAW (NEW YORK TRANSIT AUTHORITY WAS NOT ENTITLED TO DISMISSAL OF THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION ON COLLATERAL ESTOPPEL, GOVERNMENTAL IMMUNITY OR FACTUAL GROUNDS, RELEVANT LAW SUCCINCTLY EXPLAINED (SECOND DEPT))/CIVIL PROCEDURE (COLLATERAL ESTOPPEL, NEW YORK TRANSIT AUTHORITY WAS NOT ENTITLED TO DISMISSAL OF THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION ON COLLATERAL ESTOPPEL, GOVERNMENTAL IMMUNITY OR FACTUAL GROUNDS, RELEVANT LAW SUCCINCTLY EXPLAINED (SECOND DEPT))/IMMUNITY (GOVERNMENTAL IMMUNITY, NEW YORK TRANSIT AUTHORITY WAS NOT ENTITLED TO DISMISSAL OF THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION ON COLLATERAL ESTOPPEL, GOVERNMENTAL IMMUNITY OR FACTUAL GROUNDS, RELEVANT LAW SUCCINCTLY EXPLAINED (SECOND DEPT))/GOVERNMENTAL IMMUNITY (NEW YORK TRANSIT AUTHORITY WAS NOT ENTITLED TO DISMISSAL OF THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION ON COLLATERAL ESTOPPEL, GOVERNMENTAL IMMUNITY OR FACTUAL GROUNDS, RELEVANT LAW SUCCINCTLY EXPLAINED (SECOND DEPT))/COLLATERAL ESTOPPEL (NEW YORK TRANSIT AUTHORITY WAS NOT ENTITLED TO DISMISSAL OF THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION ON COLLATERAL ESTOPPEL, GOVERNMENTAL IMMUNITY OR FACTUAL GROUNDS, RELEVANT LAW SUCCINCTLY EXPLAINED (SECOND DEPT))/PROPRIETARY FUNCTION (GOVERNMENTAL IMMUNITY, NEW YORK TRANSIT AUTHORITY WAS NOT ENTITLED TO DISMISSAL OF THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION ON COLLATERAL ESTOPPEL, GOVERNMENTAL IMMUNITY OR FACTUAL GROUNDS, RELEVANT LAW SUCCINCTLY EXPLAINED (SECOND DEPT))/GOVERNMENTAL FUNCTION, (GOVERNMENTAL IMMUNITY, NEW YORK TRANSIT AUTHORITY WAS NOT ENTITLED TO DISMISSAL OF THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION ON COLLATERAL ESTOPPEL, GOVERNMENTAL IMMUNITY OR FACTUAL GROUNDS, RELEVANT LAW SUCCINCTLY EXPLAINED (SECOND DEPT))

PLAINTIFF DID NOT ATTACH HIMSELF TO AN AVAILABLE LIFELINE, QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT ON PLAINTIFF’S LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT).

The First Department determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action was properly denied. Plaintiff fell from a platform. He was wearing a vest and lanyard but did not attach himself to an available lifeline:

Plaintiff Luis Colon was injured when he fell from a makeshift platform while torquing bolts on the Henry Hudson Bridge restoration project. At the time of his fall, plaintiff was wearing a vest and lanyard; however, he did not attach himself to the available lifeline. There are questions of fact on this record concerning whether it was feasible or even practical for Colon to have attached himself to the lifeline or whether another safety device was required and whether it was provided … . Colon v Metropolitan Transp. Auth., 2018 NY Slip Op 01436, First Dept 3-6-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF DID NOT ATTACH HIMSELF TO AN AVAILABLE LIFELINE, QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT ON PLAINTIFF’S LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT))

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PLAINTIFF WAS INJURED IN A WORK AREA ON THE 16TH FLOOR USED FOR RENOVATION WORK ON THE 41ST FLOOR, QUESTION OF FACT WHETHER THE 16TH FLOOR WAS A CONSTRUCTION AREA WITHIN THE MEANING OF LABOR LAW 241 (6), THE COURT NOTED A LESSEE IS AN OWNER WITHIN THE MEANING OF LABOR LAW 241 (6) (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kapnick, reversing Supreme Court, determined plaintiff’s Labor Law 241 (6) action should not have been dismissed. Plaintiff worked for a company hired to renovate building space leased by defendant (Cayre). Cayre’s space was on the 41st and 42nd floors. The space where plaintiff was injured was on the 16th floor in an area used by plaintiff’s employer for work related to the renovation of Cayre’s space. Plaintiff’s thumb was injured when he was using an unguarded saw on the 16th floor. The court noted that a lessee is deemed an owner within the meaning of Labor Law 241 (6):

We find that there are disputed issues of fact concerning whether the 16th floor space qualifies as a construction area. … . …”[G]enerally, the scope of a work site must be reviewed as a flexible concept, defined not only by the place but by the circumstances of the work to be done. Thus, Labor Law § 241(6) extends to areas where materials or equipment are being readied for use, as opposed to areas where they are merely stored for future use” … . Here, although defendants contend that the 16th floor space is [plaintiff’s employer’s] permanent workshop, in fact, the 16th floor work space where the accident occurred belonged to 1407 Broadway [the net operating lessee], and the 41st floor location of the executive bathroom being renovated was owned by 1407 Broadway, and leased to Cayre. * * *

We … reject Cayre’s argument that … plaintiff’s accident does not come within the ambit of Labor Law § 241(6) because he was engaged in the fabrication and transportation of materials to be used in connection with construction. As stated by the Court of Appeals, Labor Law § 241(6) covers industrial accidents that occur in the context of construction (Nagel v D & R Realty Corp., 99 NY2d 98). Indeed, Shields v General Elec. Co. (3 AD3d 715 [3d Dept 2004]) is instructive. There, the Court noted that “work that is an integral part of the construction contract’ and is necessitated by and incidental to the construction . . . and involve[s] materials being readied for use in connection therewith’ is construction work” … . Karwowski v 1407 Broadway Real Estate, LLC, 2018 NY Slip Op 01422, First Dept 3-2-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF WAS INJURED IN A WORK AREA ON THE 16TH FLOOR USED FOR RENOVATION WORK ON THE 41ST FLOOR, QUESTION OF FACT WHETHER THE 16TH FLOOR WAS A CONSTRUCTION AREA WITHIN THE MEANING OF LABOR LAW 241 (6), THE COURT NOTED A LESSEE IS AN OWNER WITHIN THE MEANING OF LABOR LAW 241 (6) (FIRST DEPT))/LANDLORD-TENANT (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF WAS INJURED IN A WORK AREA ON THE 16TH FLOOR USED FOR RENOVATION WORK ON THE 41ST FLOOR, QUESTION OF FACT WHETHER THE 16TH FLOOR WAS A CONSTRUCTION AREA WITHIN THE MEANING OF LABOR LAW 241 (6), THE COURT NOTED A LESSEE IS AN OWNER WITHIN THE MEANING OF LABOR LAW 241 (6) (FIRST DEPT))/CONSTRUCTION AREA (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF WAS INJURED IN A WORK AREA ON THE 16TH FLOOR USED FOR RENOVATION WORK ON THE 41ST FLOOR, QUESTION OF FACT WHETHER THE 16TH FLOOR WAS A CONSTRUCTION AREA WITHIN THE MEANING OF LABOR LAW 241 (6), THE COURT NOTED A LESSEE IS AN OWNER WITHIN THE MEANING OF LABOR LAW 241 (6) (FIRST DEPT))

PLAINTIFF WAS NOT ALTERING OR ERECTING A STRUCTURE WITHIN THE MEANING OF LABOR LAW 240 (1), DEFENDANT PROPERTY OWNER DID NOT EXERCISE SUPERVISORY CONTROL OVER THE METHOD OR MANNER OF PLAINTIFF’S WORK, PLAINTIFF’S LABOR LAW 240 (1) AND 200 CAUSES OF ACTION PROPERLY DISMISSED (THIRD DEPT).

The Third Department determined plaintiff was not engaged in an activity protected by Labor Law 240 (1) when he was injured and the defendant owner of the property did not supervise or control the manner of plaintiff’s work, requiring dismissal of the Labor Law 200 cause of action as well. The plaintiff worked for a car crushing busing and was standing on a crushed car on a trailer when he was knocked into the air by a piece of heavy equipment:

… [E]ven if we were to agree with plaintiff that the open trailer was a structure as that term is used in Labor Law § 240 (1), the record provides us with no basis to conclude that the activity in which plaintiff was engaged was a protected activity or, as relevant here, that plaintiff was altering or erecting a structure. …

“When an alleged defect or dangerous condition arises from [a] 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 Labor Law § 200” … . Lopez v 6071 Enters., LLC, 2018 NY Slip Op 01372, Third Dept 3-1-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF WAS NOT ALTERING OR ERECTING A STRUCTURE WITHIN THE MEANING OF LABOR LAW 240 (1), DEFENDANT PROPERTY OWNER DID NOT EXERCISE SUPERVISORY CONTROL OVER THE METHOD OR MANNER OF PLAINTIFF’S WORK, PLAINTIFF’S LABOR LAW 240 (1) AND 200 CAUSES OF ACTION PROPERLY DISMISSED (THIRD DEPT))/ALTERING OR ERECTING A STRUCTURE (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF WAS NOT ALTERING OR ERECTING A STRUCTURE WITHIN THE MEANING OF LABOR LAW 240 (1), DEFENDANT PROPERTY OWNER DID NOT EXERCISE SUPERVISORY CONTROL OVER THE METHOD OR MANNER OF PLAINTIFF’S WORK, PLAINTIFF’S LABOR LAW 240 (1) AND 200 CAUSES OF ACTION PROPERLY DISMISSED (THIRD DEPT))

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